Debate ramps up at Texas Legislature over governor’s emergency powers during pandemic

Gov. Greg Abbott is well aware that some lawmakers, particularly in his own party, are interested in reining in his authority. However, it remains to be seen how much power Abbott is willing to relinquish.

For roughly the past year, Republicans and Democrats have picked apart the state’s response to the coronavirus pandemic — and particularly how Gov. Greg Abbott has wielded his power along the way.

Now, with less than 90 days left in the 2021 regular legislative session and as Abbott has moved to lift most of the restrictions he imposed, the Texas Legislature is setting its sights on addressing the governor’s emergency powers during a pandemic. And while many differences remain on the approach, members of both parties and both chambers of the Legislature appear intent on doing something.

In the House, a top lieutenant of GOP Speaker Dade Phelan has filed a wide-ranging bill that would affirm the governor’s ability to suspend state laws and require local jurisdictions to get approval from the secretary of state before altering voting procedures during a pandemic, among other things. The measure has been designated House Bill 3, indicating it’s a top priority for the new speaker, behind the lower chamber’s proposed state and supplemental budgets in House Bills 1 and 2, respectively.

The author of House Bill 3, Rep. Dustin Burrows, R-Lubbock, has said the proposal can serve as a starting point for lawmakers to begin to map out what the state’s response should look like in the event of another pandemic.

“After going through the last year of a pandemic and the government reaction to it, we owe Texans a healthy and robust debate about what we agree and disagree with,” Burrows said in a statement to The Texas Tribune for this story. “I filed HB3 so we could have a holistic review of state governance and to make sure we protect our liberties during a state emergency.”

The Senate, meanwhile, is appearing to take a more piecemeal approach. Lt. Gov. Dan Patrick has included several pandemic-related proposals as part of his 31 legislative priorities for the session, including a “First Responders Pandemic Care Act” and a “Family Nursing Home Visitation Rights” bill. Patrick’s office has remained tight-lipped so far about the substance of those proposals — many of which have not yet been filed — or his chamber’s contrasting approach. A Patrick spokesperson declined to comment on the record.

“Things are off to a slow start, and I think we’re probably in wait-and-see mode” when it comes to reforming emergency powers, said Sen. Carol Alvarado, D-Houston, chair of the Senate Democratic Caucus. “There seems to be more going on on the Republican side of that, but as far as doing something like an HB 3 goes, I’m not sure.”

There are broad areas of agreement between the two chambers on issues like protecting businesses from certain lawsuits related to COVID-19, which is among Patrick’s and Abbott’s priorities and is included in the House’s omnibus proposal. But the more tricky territory could be reforming the parameters of a state pandemic response.

The emergency powers debate will unfold in the aftermath of Abbott’s decisions to lift the statewide mask mandate and allow businesses to reopen at 100% capacity. Abbott announced the moves earlier this week, and they go into effect Wednesday.

While those decisions took some intraparty heat off of Abbott, there is still interest at the Capitol in a broader discussion about executive authority — interest from both parties. Democrats and some public health experts have called on him at times to be more strict to slow the spread of the virus, or to allow county officials to impose local measures that go further than his statewide mandates.

Early in the pandemic, Abbott issued what essentially amounted to a statewide shutdown order, and he kept in place some level of capacity limitations for businesses until his announcement this week. In July, he mandated that Texans wear masks in public. And he has taken multiple steps to lift numerous state regulations, such as allowing restaurants to sell groceries and mixed drinks to go.

Abbott is well aware that some lawmakers, particularly in his own party, are interested in reining in his authority. In his State of the State speech last month, he promised to “continue working with the Legislature to find ways to navigate a pandemic while also allowing businesses to remain open.” In media appearances afterward, he signaled openness to reforming the governor’s emergency powers, telling the Tribune that his office is “offering up some legislation ourselves on ways to address this going forward.”

However, it remains to be seen how much power Abbott is willing to relinquish. He told the Tribune that his office is working on legislation to “pre-plan” a pandemic response, “but it has to be done in a way that leaves flexibility to move swiftly.” He said he still wants the governor to be able to unilaterally cut regulations in such cases and to respond to requests from the federal government that can have as short as a 24-hour deadline. Abbott has also indicated that he wants to permanently end some of the regulations he suspended.

Phelan, a Beaumont Republican, has also advocated for a balanced approach, and in a statement for this story, the speaker applauded Burrows “for taking a leading role” in addressing the issue this legislative session.

“[House Bill 3] is the House’s blueprint for pandemic response,” Phelan said, “and our chamber welcomes healthy debate over the best way to defend our liberties, create predictability in times of crisis, and safeguard our economy.”

Conversations over how the Legislature should respond to the pandemic have extended beyond the governor’s emergency powers, with some lawmakers pushing for broader health reforms and changes to the way the state reports data or distributes vaccines. But those discussions have, to some extent, been delayed after a massive winter storm last month left millions without power and water, setting off committee hearings, investigations and other debates about reforming the state’s power grid and the entities in charge of overseeing it.

That recent energy disaster, coupled with lawmakers attempting to legislate during a pandemic, has put the Legislature behind schedule with 88 days left of the 140-day regular session, making it unclear how those two big-ticket items — a pandemic and winter weather response — will pass along with everything else on the agenda by the time the two chambers gavel out.

“A great, conservative victory”

As filed, House Bill 3 would carve out future pandemics from how the state responds to other disasters, such as hurricanes. For roughly the past year throughout the pandemic, the state has been operating under the Texas Disaster Act of 1975, which Abbott has used to issue statewide guidelines. Some have argued that the disaster statute did not fit the circumstances brought on by the unprecedented pandemic and that tweaks would be needed should a similar crisis happen in the future.

The bill would also require local jurisdictions to receive approval from the secretary of state before altering voting procedures during a pandemic — an attempt to avoid the headlines and confusion that defined much of the 2020 general election, such as court battles over mail-in ballot applications and drive-thru voting.

“All of these jurisdictions, especially in [Harris and Dallas counties], the more blue areas, we’re not going to let them use a pandemic excuse to change the rules of the game to try to get more Democrats out to vote,” Burrows said last week on the Lubbock-based Chad Hasty radio show, noting that the Republican Party of Texas has named “election integrity” a top priority this legislative session.