The Texas Office of the Attorney General issued a legal opinion finding that executive orders issued by Gov. Greg Abbott are “laws” that can be enforced with criminal penalties.
The opinion, which was released on Thursday as the trial of now-acquitted Attorney General Ken Paxton was winding to a close, was written by First Assistant Attorney General Brent Webster. Interim Attorney General Angela Colmenero recused herself from writing the opinion because she was working for the governor’s office when the executive orders in question were issued.
The opinion fulfills a request by Williamson County Attorney Dee Hobbs, who asked for guidance on whether Abbott’s orders regarding the COVID-19 pandemic could be “criminally enforceable” against government officials who violated them. Specifically, Hobbs’ request pertained to Executive Order GA-38, which prohibits officials from mandating face masks.
It was the Office of the Attorney General’s opinion that a court would likely conclude the executive orders constitute “laws” for penal code enforcement purposes because they were issued pursuant to section 418.012 of the Government Code.
Webster’s conclusions could add weight to the governor’s orders, especially since the first assistant attorney general actually sued Abbott on behalf of some Texas businesses in 2020, challenging Abbott’s pandemic orders that imposed lockdown restrictions on small businesses and mandated masks, as reported by The Texan.
The difference may be that the older orders placed restrictions on individuals and private businesses, while the later orders that were the subject of the recent opinion were issued to prevent officials from imposing their own lockdowns.
As The Dallas Express has reported, mask mandates are reappearing in some parts of the country, and many Texans are concerned that a return to lockdown restrictions is not too far away. The last regular legislative session passed a law prohibiting local governments from imposing COVID-19-related mandates. Still, the law does not regulate what private businesses can do, as some lawmakers would have preferred.
Rep. Brian Harrison (R-Midlothian) authored legislation to limit emergency powers and prevent vaccine requirements, but those measures failed to pass. He has asked Abbott to make passing such legislation a part of a special session during the fall instead of relying on executive orders.
Abbott sought to have the legislature pass a bill codifying his executive order prohibiting vaccine mandates by any entity in Texas, including private businesses, but the legislation failed in the face of resistance from business groups, as reported by The Texas Tribune.
“If Executive Orders are ‘laws,’ then Texas has a king, not a Governor,” Harrison said, according to The Texan. “Emergency powers must be reined in, or when we get a Democrat Governor, Texans can kiss freedom goodbye.”
However, Democrat lawmakers oppose such legislation, warning it could tie the hands of officials who might need to take drastic public health measures the next time there is a resurgence of COVID-19.
“I understand where this legislation comes from. It comes from the frustration of the early days of the pandemic,” Rep. Erin Zwiener (D-Driftwood) said when the legislation was being considered back in June.
“But I am concerned this legislation is potentially short-sighted. … The truth is, we don’t know what the next variant looks like,” Zwiener claimed, per The Texas Tribune.