Governor Abbott issues facemask order among other changes

On Thursday, July 2, Governor Greg Abbott issued a proclamation amending Executive Order GA-28 (“GA-28”). GA-28 was originally put in place on June 26, but the increase of COVID-19 cases across the state led to the governor giving increased authority to local officials to regulate gatherings. At the same time, Gov. Abbott also issued a new executive order, Executive Order GA-29 (“GA-29”). GA-29 does not supersede GA-28, but provides new regulations in addition to GA-28. In other words, both GA-28 and GA-29 are governing orders, and both remain in effect. Texans must comply with both.

Change to GA-28

The amendment to GA-28 increases the authority of mayors and county judges to limit outdoor gatherings of 10 or more people. Previously, mayors and judges could only limit gatherings of 100 or more people. Everything else about EO GA-28 remains the same, including the exceptions. This means religious services, day-cares, and camps (including church daycares and church camps) all remain exempt from GA-28’s occupancy requirements. Even if a local official in a county chooses to limit in-person outdoor gathering to no more than 10 people, it would not apply to these exempt activities. To see the full list of activities to which occupancy limits don’t apply, you can read the full text of GA-28, as amended,here. You can also read the proclamation amending GA-28 here.

GA-29

The new executive order, GA-29 also makes a major change. It states that, “Every person in Texas shall wear a face covering over the nose and mouth when inside a commercial entity or other building or space open to the public, or when in an outdoor public space, wherever it is not feasible to maintain six feet of social distancing from another person not in the same household.”

The order contains 11 exceptions to the face covering requirement. Under exception (1) the face covering requirement does not apply to “any person younger than 10 years of age.” Under exception (2) the face covering requirement does not apply to “any person with a medical condition or disability that prevents them from wearing a face covering.”  

Most notably for churches, exception (9) exempts “any person who is actively providing or obtaining access to religious worship, but wearing a face covering is strongly encouraged.” This exemption, though stated with unusual wording, means that church leaders (staff, choir/praise team, etc.) and church congregants are not required by law to wear masks at church worship services.

County-wide Exemptions

Exception (11) exempts, "any person in a county (a) that meets the requisite criteria promulgated by the Texas Division of Emergency Management (TDEM) regarding minimal cases of COVID-19, and (b) whose county judge has affirmatively opted-out of this face-covering requirement by filing with TDEM the required face-covering attestation form—provided, however, that wearing a face covering is highly recommended, and every county is strongly encouraged to follow these face-covering standards." This particular exemption has created a significant amount of confusion.

There are two clear and separate requirements for exception #11 to take effect. First, the county must meet the minimal case criteria of TDEM (20 or fewer cases). This is presumably determined by TDEM. Second, the county judge must file an attestation affirmatively claiming the exception from EO GA-29 on behalf of the people of that county. If a county has 20 or fewer cases, but the county judge does not file an attestation: no exemption will be granted. If the county judge files an attestation, but TDEM determines the county doesn't meet the minimal case criteria: no exemption will be granted.

To see the full executive order GA-29, including all 11 of the listed exemptions, click here. Under GA-29, TDEM will keep a list of exempt counties on this website. There are currently over 40 counties that are exempt, but the exact number changes every few days as TDEM updates the list. If a county is not on the list, it does not meet one (or both) of the requirements. The list of counties that are exempt from GA-29 county-wide can he found here.

Exception #11 is completely independent and unrelated to exception #9. This means that because of religious freedoms, all churches are exempt during worship services, regardless of whether the church is located in a county that qualifies for a county-wide exemption under exception #11. It’s also helpful for church leaders to know that both exception #9 and exception #11 still recommend wearing facial coverings. The Governor urged Texas to voluntarily wear face coverings for many weeks before ultimately deciding he had no alternative but to make it an order. 

Church leaders should prayerfully consider whether it is wise to require face coverings or limit the number of attendees for worship services. While churches are exempt from these orders for religious liberty reasons, there are still health and safety concerns to consider.

Fines as Penalty for Violations

Unsurprisingly, executive order GA-29 also amends GA-28 to remove the prohibition against city or county governments fining individuals who don’t wear protective face coverings. Prior to these changes, local officials were prohibited by GA-28 from fining individuals who did not wear face coverings. The potential penalty for a first violation of the order either a verbal or written warning. Failing to comply with the warning could lead in subsequent violations resulting in a fine of not more than $250 per violation. This gives individuals grace if, for example they are in a county and do not know if that county is exempt under exception #11. The amendment to GA-28 allowing local officials to reduce gathering sizes and GA-29 requiring face coverings took effect on July 3. Currently, neither EO GA-28 or EO GA-29 has an expiration date.

Attorney John Litzler directs the church law division of Christian Unity Ministries in San Antonio. He also serves as a BGCT legal consultant to assist Texas Baptist churches in understanding various legal issues.

Disclaimer: This article provides general information and a general understanding of the law and does not constitute specific legal advice. By utilizing the Texas Baptist website, you understand that there is no attorney/client relationship between you/your church and the author or between you/your church and the Baptist General Convention of Texas. This article should not be used as a substitute for competent legal advice from a licensed professional attorney in your state with the specifics of your situation.