Municipal Corner

Texas state agencies and political subdivisions may not condition an individual’s access to a governmental facility on receipt of a vaccine administered under emergency use authorization and not yet approved by the Food and Drug Administration. Tex. Att’y Gen. Op. No. KP-379 (2021).

In a recent opinion, the Office of the Attorney General addressed whether Texas state agencies and political subdivisions could condition an individual’s access to a governmental facility on receipt of a vaccine administered under emergency use authorization and not yet fully approved by the Food and Drug Administration (“FDA”). The Office of the Attorney General concluded that such agencies and governmental entities could not do so.

The Opinion first discusses the “comprehensive regulatory framework” established by Congress and administered by the FDA to develop and distribute vaccines in the United States. See generally 21 U.S.C. § 301-399i. This discussion includes a brief history and summary of the stages of vaccine approval, including the process as it relates to COVID-19 vaccine trials and emergency use authorization. The Attorney General noted that, to date, the FDA has not granted full approval for any COVID-19 vaccine for use in the United States.

Next, the Opinion addresses the implications of Executive Order GA-38, which prohibits state agencies and political subdivisions from conditioning an individual’s access to a government facility on receipt of a vaccine issued under emergency use authorization. Because executive orders issued by the Governor have the force and effect of law, such orders supersede any local ordinances or policies that are inconsistent with the Governor’s action. Any attempt to enforce an “order, ordinance, policy, regulation, rule or similar measure” that would require proof of vaccination would be in violation of state law. See Office of the Governor, Order GA-38 (2021).

Furthermore, Attorney General Paxton concluded that under Senate Bill 968, passed by the 87th Legislature, a governmental entity in Texas may not issue a COVID-19 vaccine passport or any other documentation certifying COVID-19 vaccination status for any purpose other than healthcare. The Attorney General noted that implicit in this prohibition is that a governmental entity may not issue a COVID-19 vaccine passport and condition entry to a governmental facility on possession of it. This particular prohibition regarding COVID-19 vaccine passports is not limited to vaccines issued under emergency use authorization and therefore applies to COVID-19 vaccines that obtain full FDA approval.

Texas Executive Order GA-38 prohibits governmental entities from requiring any person to wear a face covering or mandating another person to wear a face covering. Tex. Att’y Gen. Op. No. KP-380 (2021).

The Attorney General recently addressed the implications of the Governor’s Executive Order GA-38 and concluded that governmental entities are prohibited from requiring or mandating any person to wear a face covering. Despite Federal orders issued by the Center for Disease Control (“CDC”) and the Transportation Security Administration (“TSA”), which attempt to require persons traveling on public transit to wear a mask and require local transit authorities to enforce such a federal mandate, the Attorney General concluded that a court could hold that the CDC and the TSA lack statutory authority to issue the face covering mandates, particularly in respect to intrastate public transit systems. Additionally, the Attorney General noted that a court could have a basis to hold that the TSA’s directive violates the Americans with Disabilities Act and is an unconstitutional attempt to commandeer local officials to enforce federal regulations. However, the Attorney General stated that due to concerns regarding the authority of the CDC and TSA to issue federal mask mandates on public transport, the Office of the Attorney General was unable to issue a definitive conclusion regarding whether those orders preempt the Governor’s Executive Order GA-38.

Type B general law cities are authorized to provide for two-year staggered terms for mayor and city alderman by local ordinance under Section 23.026(b) of the Texas Local Government Code. Tex. Att’y Gen. Op. No. KP-0384.

The Attorney General addressed the enforceability of city action transitioning to staggered elections for city officials under Section 23.026(b) of the Texas Local Government Code in a recent opinion. The City of San Augustine (the “City”) posed a series of questions to the Office of the Attorney General regarding the enforcement power of the City to transition to staggered elections for the City’s six elected officials. The Attorney General noted that unlike home-rule cities, which have all power not reserved or restricted by the Legislature, a city incorporated under the general laws of the State is limited to the powers expressly provided for by the Legislature in addition to those necessarily implied therefrom. Generally, Type B general law cities have the authority to “adopt an ordinance or bylaw, not inconsistent with state law, that the governing body considers proper for the government of municipal corporation,” as described in Texas Local Government Code Section 51.032(a).

The Honorable Wesley Hoyt, San Augustine County Attorney, asked whether the City’s action to re-stagger the terms of office was lawful; however, he did not include in his question whether the City Council re-staggered the election by ordinance or resolution. The Attorney General observed that while an ordinance is a legislative act, a resolution is not a law, but “an expression of opinion.” City of Carrollton v. Tex. Comm’n on Env’t Quality, 170 S.W.3d 204, 215 (Tex. App. – Austin 2005, no pet.). Under Section 23.026(b), an ordinance is required to transition to staggered terms. Therefore, if the City’s action was taken by resolution, it did not conform to Section 23.026(b) and is likely void.

Additionally, the Attorney General addressed whether the council members could opt out of drawing lots and whether the City’s Secretary could draw lots for them. Under Section 23.026(b), the Attorney General concluded a court would likely hold that the new council members could not opt out of drawing lots because the Texas Local Government Code does not provide an alternative for council members drawing lots. Furthermore, the Attorney General noted that while a Type B general-law city may repeal a prior ordinance, such a repeal does not necessarily revive the prior law. Here, if the City wished to return to non-staggered elections, the City must affirmatively adopt a new ordinance providing for the change in form of government. Finally, the Attorney General addressed the notice requirements for adopting a local ordinance as provided for by the Texas Open Meetings Act and Chapter 52 of the Local Government Code. The Attorney General concluded that the failure to follow the posting and publication requirements would render the ordinance voidable under the Open Meetings Act or unenforceable under Chapter 52. Such requirements include posting the notice in three public places in the City or in a newspaper of general circulation, as well as on the City’s website.

“Municipal Corner” is prepared by Kathryn Thiel. Kathryn is an Associate in the Firm’s Districts Practice Group. If you would like additional information or have questions related to these or other matters, please contact Kathryn at 512.322.5839 or kthiel@lglawfirm.com.

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