Gov. Abbott backs disaster powers reform

The Texas Disaster Act — the section of state code that authorized all the COVID-19 directives during 2020 — is in the Legislature’s sights once again, this time with the backing of Gov. Greg Abbott.

In his 2023 State of the State address, Abbott highlighted reforming the emergency powers provisions of state law, specifically as it pertains to pandemics. The position is a stark departure from Abbott’s posture this time two years ago when pandemic restrictions were still operational. That session, two versions of emergency powers reform failed to make it through the lower chamber.

This time around — buoyed by the governor’s new support — reform of the Texas Disaster Act in some fashion is almost baked into the cake. It’s mostly a matter now of what shape it takes.

Two legislators, Sen. Brian Birdwell (R-Granbury) and Rep. Shelby Slawson (R-Stephenville), have filed identical versions of disaster powers reform in their respective chambers along with corresponding joint resolutions to amend the Texas Constitution.

Birdwell’s bill is co-authored by 13 senators, including four Democrats.

In a joint release, Birdwell said, “These pieces of legislation institute the legislative check originally contemplated by the disaster act without unnecessarily encumbering the governor’s response to more routinely recurring disasters that do not affect a substantial number of citizens of the state.”

Slawson added, “As our state grows, so does the imperative of ensuring the legislative branch is at work for Texans in times of disaster and emergency, alongside the executive branch.”

The legislation would require the governor to convene the Legislature in a special session if he intends to renew a disaster declaration after its initial 30-day period if that declaration applies to at least two-fifths of the state’s counties or affects at least half of the state’s population.

That mechanism was also part of Birdwell’s 2021 bill.

If the convened Legislature does not approve of the renewal, the declaration would expire. The only exception is for disaster declaration related to a “nuclear or radiological” event, which would have a lifespan of 90 days without the Legislature’s renewal.

One of the meatiest portions of the bill limits the ability to “restrict or impair the operation or occupancy of businesses” only to the Legislature. Both the state and various local governments implemented their own ingress and egress of persons restrictions during the height of the pandemic.

The other keynote section is aimed at those localities, laying out a specific provision preempting local directives.

“A declaration of local disaster issued … may not conflict with, or expand or limit the scope of, a declaration of disaster issued … unless expressly authorized by a proclamation or executive order issued by the governor,” the bill reads.

The Texas Supreme Court heard arguments this week in a slate of cases involving local governments who issued their own mask mandates suing the state for prohibiting their contradictory orders.

Related to that, the legislation would prohibit the governor from suspending provisions of the election code centered on early voting or ballot by mail. That’s pertinent because during the 2020 election, legal fights over voting spread like wildfire.

During the general election, Abbott unilaterally extended the early voting period by one week — a move he justified by pointing to the Texas Disaster Act and the emergency powers therein. The governor was sued by Republican officials, but the case was ultimately dismissed by the Texas Supreme Court.

On the flip side, some politically blue cities such as Harris County attempted to grant universal mail-in-voting, which is not permitted under state code. Only those 65 and older or with a disability may vote by mail. Harris County made the argument that fear of catching COVID-19 at a polling location constituted a “disability,” a claim swatted down by the Texas Supreme Court.

As part of its definition of “disaster,” the proposed law would explicitly exclude instances of “civil unrest, riots, or insurrection.”

If passed, and if voters approve the corresponding constitutional amendments, the law would become effective on December 1 of this year.

Abbott has renewed the state’s COVID-19 disaster declaration each month since March 2020, and said he’ll continue until the Legislature bans mask and vaccine mandates this session. Without that, should he eliminate the declaration and his corresponding bans of those mandates, the ones currently in effect but not in operation at the local or private level would become enforceable again.

He’s also awaiting the outcome of the lawsuits, which may provide some clarity on where the line is drawn between state authority and local sovereignty within the Texas Disaster Act.

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