On April 27, 2020, Texas Governor Greg Abbott issued Executive Order GA-18 (GA-18) regarding the reopening of Texas businesses during the COVID-19 crisis. GA-18 permitted Essential Services to continue operations, and expanded the types of businesses authorized to reopen on May 1, 2020, including retailers, restaurants, movie theaters, museums and libraries, contact-free outdoor sports, places of worship, and single-person offices, nearly all of which were subject to a 25% occupancy restriction. GA-18 also permitted all licensed healthcare professionals to return to work with minor restrictions. GA-18 was part of the Governor’s 3-phase plan for reopening the state and was issued in tandem with a report entitled Texans Helping Texans: The Governor's Report to Open Texas (the “Governor’s report”).

On May 5, 2020, the governor announced phase 2 of his reopening plan and issued Executive Order GA-21 (GA-21), which expands the categories of Reopened Services initially announced in GA-18 and, subject to certain conditions and limitations, permits newly added businesses to reopen on staggered dates. The newly announced conditions and limitations for Reopened Services do not apply to Essential Services.

Effective May 8, 2020, salons, hair salons, barber shops, nail salons/shops, and tanning salons may reopen subject to the following conditions:

• Only one customer per stylist is permitted
• Masks are recommended for stylists and customers
• Appointments are recommended to minimize walk-ins
• Customer waiting should take place outside or in vehicles unless individuals can maintain six-feet social distancing

Starting May 18, 2020, offices within office buildings, non-essential manufacturers and gyms can reopen, subject to certain restrictions.

Regarding offices within office buildings, these businesses may, effective May 18, operate at up to the greater of (i) 5 individuals, or (ii) 25% of the total office workforce, but only if these individuals can maintain appropriate social distancing.  Importantly, this headcount standard varies from the occupancy limits used for other types of Reopened Services, which are tied to the maximum occupancy load set by local and/or state law.

Non-essential manufacturers may open on May 18 subject to the following conditions:

• Cannot exceed 25% of the total listed occupancy of the facility
• Must stagger work segments and avoid congregating
• Must maintain proper social distancing

Also on May 18, gyms and other exercise facilities are permitted to reopen subject to the following requirements:

• Cannot exceed 25% of the total listed occupancy of the facility
• Showers/locker rooms must remain closed
• All equipment must be disinfected after each use
• Customers should wear gloves to cover entire hand and fingers
• Individuals must maintain six-feet social distancing
• Personal equipment brought into the facility must be disinfected

In addition to the above businesses, GA-21 also relaxed operating standards regarding wedding facilities and services, as well as swimming pools.  GA-21 references religious services, but does not provide specific requirements for them because they are to be conducted in accordance with the pandemic-specific joint guidance issued by the attorney general and governor. 

The governor also announced, in tandem with GA-21, newly formed Surge Response Teams, comprising members of the Texas Military Department, the Texas Emergency Medical Task Force and BCFS Health and Human Services. These teams will work with local officials to serve nursing homes, prisons, packing plants and other facilities that experience COVID-19 flare-ups by establishing health and social distancing standards to contain outbreaks, as well as providing personal protective equipment, testing supplies, onsite staffing and assessment assistance.

Per GA-21, the governor retains the sole discretion to identify any county or counties in which reopened services should be terminated or restricted, based on his determination in consultation with medical professionals that only essential services should be permitted in any county. His determination may be based on, among other things, factors such as an increase in the transmission of COVID-l9 or in the amount of COVID-19-related hospitalizations or fatalities.

Regarding enforcement, GA-21 prohibits local officials from imposing inconsistent restrictions. Local officials may, however, enforce GA-21, as well as local restrictions that are consistent with it, except regarding face coverings. Face coverings are only recommended in Texas and no state or local official can impose a civil or criminal penalty for failure to wear a face covering.

The biggest potential challenge arising from the interplay between the governor’s pandemic-related orders and local orders may be in Dallas County.  While most counties began to align or wind down their orders with the issuance of GA-18, that was not the case with Dallas County.  On May 4, while GA-18 was still in effect and on the eve of GA-21, Dallas County Judge Clay Jenkins issued a Supplemental Order that made the recommended Minimum Health Standard Protocols listed in the Governor’s Report mandatory in Dallas County. The Supplemental Order makes any violation of these protocols, with the exception of the face covering requirement for patrons of Essential Businesses and Reopened Services, a misdemeanor punishable by a fine up to $1,000 and/or up to 180 days in jail.  While there are those who suggest the Supplemental Order is in conflict with GA-21 and other governor pronouncements, no legal challenge has yet been mounted, and is unlikely to be, given the short amount of time remaining before the Supplemental Order expires by its own terms on May 15.

GA-21 took effect on May 5 and expires at 11:59 p.m. on May 19, unless it is modified, amended, rescinded, or superseded by the governor.

GA-21 does not supersede Executive Order GA-19, which relaxed certain restrictions for health care professionals, and issued amended requirements related to hospital capacity.  Nor did it supersede Executive Order GA-20, which eliminated the mandatory 14-day self-quarantine period for individuals traveling from Louisiana.