New Texas law bans local government actions on COVID mask, vaccine and shutdown mandates, but private entities not affected
Photo above — Gov. Greg Abbott speaks to local media before receiving the COVID-19 vaccine at Ascension Seton Medical Center on Dec. 22, 2020, in Austin. Credit: Ricardo B. Brazziell/POOL via American-Statesman
By Patrick Svitek, The Texas Tribune
June 7, 2023 — Ever since the COVID-19 pandemic broke out in 2020, Gov. Greg Abbott has faced nagging scrutiny from fellow Republicans over his response, from ordering business closures early on to managing vaccine mandates later.
This year, Abbott sought to quiet his critics once and for all by asking lawmakers to prioritize legislation to “end COVID restrictions forever.” He also asked for limits on his power to respond to a pandemic without legislative input.
He got his way only partly.
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On June 2nd, Abbott signed into law Senate Bill 29, which prohibits local governments from requiring COVID-related masks, vaccines or business shutdowns. But some Republicans say it does not go far enough because it does not cover private entities.
In addition, a proposal curbing his power never made it to Abbott’s desk.
It may be a largely symbolic debate to the average Texan: The pandemic is over, and Abbott long ago took executive action to snuff out all types of mandates. But it remains a salient cause for some in Abbott’s party who have championed “medical freedom” in the wake of the pandemic.
State Rep. Brian Harrison, R-Midlothian, said he voted for SB 29, calling it “fine” but questioning how much it really matters. He pushed for a more sweeping ban on vaccine mandates during the regular session.
Will it really make any difference?
“Is there a single COVID mandate that SB 29 will end? Probably not,” Harrison said in an interview. He added that private vaccine mandates are “alive and well in Texas” despite Abbott’s orders and that the state “should be leading the fight against the COVID tyranny.”
Harrison sent Abbott a letter Tuesday asking him to make a “comprehensive ban on COVID-19 vaccine mandates” part of a special session agenda.
It appears to be an issue that Abbott wants to put in the rearview mirror. When he announced an immediate special session on other priorities last week, he first rattled off a list of regular-session achievements that included “end[ing] COVID restrictions and mandates.”
Abbott’s office did not respond to a request for comment for this story.
Harrison and Sen. Mayes Middleton, R-Galveston, authored legislation during the regular session to outlaw all COVID-19 vaccine mandates. The Senate bill passed in that chamber but never got a vote on the House floor, although dozens of House Republicans signed on and it had the support of groups like the Texas GOP and Texans for Vaccine Choice.
CDC still recommends vaccines
The Centers for Disease Control and Prevention continues to recommend vaccination against COVID-19 for those 6 months and older as the best way to prevent serious illness.
Like many governors, Abbott began the pandemic by issuing restrictions that shut down businesses and limited in-person gatherings. But it was only weeks before he and other red-state governors started facing pressure to reopen their economies, pressure that Abbott heeded.
Abbott eventually banned mandatory face masks and insisted that vaccines remained a private choice — saying personal responsibility, not government mandates, was the answer. That change of heart, however, left lingering doubts within the state Republican Party.
Abbott prevented mandates on vaccines, masks and business closures
The governor has used his COVID-19 disaster declaration, first issued in March 2020 and repeatedly renewed since, as the basis for his executive orders preventing mandates on vaccines, masks and business closures. He has promised to lift the disaster declaration once the Legislature codifies his executive orders, but it remains to be seen if SB 29 is enough for that. Abbott last renewed the disaster declaration on May 15.
SB 29 goes into effect on Sept. 1 and may have an impact on a tangle of lawsuits between the state and local governments that are challenging Abbott’s executive order prohibiting them from issuing mask or vaccine mandates. Lawyers for three big Texas counties argued at the state Supreme Court in February that they should have the option to mandate masks if COVID-19 surges again.
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Texas Republicans have largely been united on preventing local governments from enacting COVID requirements. But whether to extend that to private businesses has been more thorny.
Abbott knows firsthand. In 2021, he initially gave private businesses the option to mandate COVID-19 vaccines for workers, with a spokesperson saying that “private businesses don’t need government running their business.” But he reversed himself weeks later amid political pressure, announcing an executive order that prohibited any entity in Texas, including private businesses, from requiring vaccines.
The Legislature was in a special session at the time, so Abbott called on lawmakers to codify the executive order. But legislation to do so failed after running into opposition from traditionally GOP-friendly business groups.
Abboot retains executive order power on COVID
That left Abbott in the awkward position of repeatedly renewing the COVID disaster declaration long after the state stopped taking the pandemic seriously.
“I’m going to keep that in place until the legislators codify my executive orders that ban mask mandates, that ban forced vaccines and things like that,” Abbott said in January. “I want to see that get passed.”
Delivering his State of the State speech the next month, he designated an emergency item to prohibit “any government” from imposing COVID mandates. He also said he wanted to require “the Legislature to convene if another pandemic is ever declared.”
SB 29 appears to satisfy the emergency item, which called for legislation restricting local governments, not private entities. But Harrison and other Republicans note that Abbott has previously and repeatedly used more sweeping language, calling for legislation banning any COVID vaccine mandate, public or private.
Bill limits local control
Most Democrats opposed SB 29, arguing it would hamstring local governments from responding to future, unknown variants of the virus that causes COVID.
“I understand where this legislation comes from,” Rep. Erin Zwiener, D-Driftwood, said on the House floor. “It comes from the frustration of the early days of the pandemic. But I am concerned this legislation is potentially short-sighted. … The truth is, we don’t know what the next variant looks like.”
Zwiener and other Democrats successfully amended the bill in the House to create exceptions to the ban on mask mandates for places like assisted-living facilities. But the Senate balked at those changes, and they were removed in conference committee.
As for Abbott’s call for legislation to require lawmakers to meet during the next pandemic, two Republicans teamed up early in the regular session to address it. Sen. Brian Birdwell, R-Granbury, and Rep. Shelby Slawson, R-Stephenville, introduced bills to require the governor to call a special session if he wants to extend a disaster declaration beyond 30 days for most of the state. Lawmakers would be given a chance to vote on the governor’s proposed extension. They could also pass laws related to the disaster.
The proposal gained unanimous support in the Senate in late March but hit a wall in the House. Only one Republican beside Slawson signed on to the House bill, and when the House finally decided to move on the Senate bill, it was far too late for it to have a chance at a floor vote ahead of a bill-killing deadline.
Harrison called it “one of the biggest failings of the legislative session.”
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