By Mayor Jim Pruitt
No matter how you feel about wearing masks in public or participating in community-wide events, I want to address the legal effects of Governor Abbott’s Executive Order GA-29 and the related Proclamation that was released the afternoon of Thursday, July 2 which prohibits many gatherings and requires masks state-wide. This is not the first time this Governor has waited until the afternoon before a weekend or holiday to make an executive order knowing full-well that local entities would have not have ample time to react regarding implementation and enforcement of such an order. It also seems that the timing of these orders was to force local officials to call off Fourth of July activities. These events celebrating our Great Nation had obviously been planned for many months with substantial time and money invested.
My concern also revolves, however, around the vague wording contained within the order itself. For a Governor, who is a lawyer and who was a great Texas Supreme Court Justice and Attorney General, the lack of legal specificity in these orders leads me to one conclusion. He doesn’t want the order enforced but wishes to appear he is doing something. He wants to appease everyone. Governor Abbott has hundreds of lawyers at his disposal who must have read these orders before they were issued. The documents, however, are drafted so loosely that a first-year law student could drive a truck through them.
His Proclamation states, “For any outdoor gathering in excess of 10 people, other than those set forth above in paragraph numbers 1, 2, or 4, the gathering is prohibited unless the mayor of the city in which the gathering is held, or the county judge in the case of a gathering in an unincorporated area, approves of the gathering, and such approval can be made subject to certain conditions or restrictions not inconsistent with this executive order.” What the Governor did was to shift all of the burden away from himself and state-wide officials and leave local officials to shoulder that burden and figure out how to implement it.
Executive Order GA-29 states, “Every person in Texas shall wear a face covering over the nose and mouth when inside a commercial entity or other building or space open to the public, or when in an outdoor public space, wherever it is not feasible to maintain six feet of social distancing from another person not in the same household.” We should be able to assume the word “feasible” was thoughtfully and intentionally included in this Order. “Feasible”, however, is defined as simply “possible to do easily or conveniently done”. It is almost always possible to maintain six feet of distance from one another in an outdoor public space and in many indoor spaces. Therefore, the Governor intentionally created a loophole that can be relied upon in many different circumstances. People attending farmer’s markets, parades, fireworks displays, concerts and other outdoor and indoor events may not have to wear a mask under this order because it is almost always “feasible” to maintain six feet of distancing in these instances.
Enforcement
The Executive Order goes on to provide for a warning for first-time offenders and then a monetary penalty for subsequent non-compliance. The Order states, “Local law enforcement and other local officials, as appropriate, can and should enforce this executive order…But no law enforcement or other official may detain, arrest, or confine in jail any person for a violation of this executive order or for related non-violent, non-felony offenses that are predicated on a violation of this executive order.”
The prohibition on law enforcement not being able to detain someone who is clearly violating the law is unique to Texas jurisprudence. Nowhere in the penal laws of the State of Texas do we prohibit a law enforcement officer from temporarily detaining a suspected individual in order to gather their name, address and other identifying information. What do we tell our police officers? “The Governor requires you to write a citation, but you can’t prohibit the person from walking away while you are attempting to obtain their identifying information to complete the citation.” Really? There is a good reason we don’t find this in any other statute; it cannot work. Not only can this provision not be enforced, but a police officer trying to do their job may now be subject to liability for violating a person’s rights if they try to comply with the Governor’s mandate.
There is a reason that we make a law so difficult to pass. When a prospective statute is filed, it receives the scrutiny of the members of the legislature and the citizens back home who elected them. During the legislative process, many groups spend hours scouring any statute to let legislators know the real impact and collateral consequences a bill may have on everyday life. No effective statute could pass legislative muster that contains words like “feasible” or has no effective enforcement provision.
While I appreciate Governor Abbott’s concern for the safety of all Texans, this unenforceable and ineffective order is a poor and confusing effort.
Jim Pruitt is the Mayor of Rockwall, Texas and is Board Certified in Criminal Law by the Texas Board of Legal Specialization
