The omnibus pandemic response bill, HB 3 by Rep. Dustin Burrows (R-Lubbock), has finally cleared the House State Affairs Committee and is on its way to the House floor. Initially heard on March 11, HB 3 has undergone substantial changes during its eight weeks in committee. However, the committee substitute still contains liability language that conflicts with SB 6, the Pandemic Liability Protection Act recently voted out of the House Judiciary & Civil Jurisprudence Committee. It remains to be seen how the bills will be reconciled as HB 3 moves forward in the process.
The primary purpose of HB 3 is to clarify and limit the governor’s powers during a pandemic disaster. The bill:
- Creates the Pandemic Disaster Legislative Oversight Committee composed of 10 members, including the lieutenant governor, speaker, chairs of Senate Finance and House Appropriations, chairs of Senate and House State Affairs, chairs of Senate Health and Human Services and House Public Health, and chairs of Senate Education and House Public Education;
- Provides that the oversight committee may convene only when the legislature is not in session to review any state pandemic disaster declaration in effect for more than 30 days following the governor’s renewal of an original declaration, as well as any rules or orders adopted by the governor or by counties or cities, and terminate a pandemic disaster declaration or guvernatorial rules or orders;
- Establishes a separate chapter, Chapter 418A, Government Code, to govern pandemic disasters;
- Prohibits the presiding officer of the governing body of a political subdivision from issuing an order during a declared pandemic disaster that requires specific businesses or industries to close or distinguishes between types of businesses or industries in limiting operation capacities;
- Grants immunity from civil liability to a business or entity operating during a pandemic disaster for an injury caused by exposing or potentially exposing an individual to a disease if on the date of the alleged exposure the business or entity is authorized to conduct business, made a reasonable effort to comply with applicable state and local laws, rules, orders, declarations, and proclamations related to the pandemic disease, the act or omission giving rise to the potential exposure was not wilful, reckless, or grossly negligent;
- Grants immunity to a person who provides goods or renders services during a pandemic disaster in support of disaster response efforts and at the request of the governor, provided the person did not act wilfully, recklessly, with gross negligence, or inconsistently with a limit specified in the governor’s request;
- Authorizes the governor to issue or rescind executive orders, proclamations, or rules that have the force and effect of law, subject to termination by the legislature or legislative oversight committee as provided in the bill;
- With respect to an executive order, proclamation, or rule closing or limiting the operating capacity of a business or other entity, mandating face masks, or limiting surgeries or other health care procedures, provides that an order may only continue for more than 30 days if the governor calls a special session during that period to consider whether to modify or terminate the order, or, if the legislature is already in regular or special session, sends a message to the legislature requesting its consideration of modification or termination;
- Bars the governor from issuing a substantially similar order to one terminated by the legislature;
- Prohibits the governor from suspending the sale, dispensing, or transportation of alcoholic beverages, guns and ammunition, explosives and combustibles, from disconnecting a state computer system from the internet, or from clearing debris or wreckage from private or public land;
- Bars the governor’s actions from interfering with a person’s free exercise of religion unless the order is justified by a compelling state interest and uses the least restrictive means necessary to further that interest;
- Limits renewal of the governor’s declaration of a pandemic disaster to 30 days, subject to modification by the legislature if in session or otherwise by the legislative oversight board;
- Designates the presiding officer of the governing body of a political subdivision as the pandemic emergency management director for that subdivision and designates that person as the governor’s agent in the administration, supervision, and implementation of the emergency management plan;
- Prohibits an emergency management director from seizing state or federal resources without prior authorization from the Texas Department of Emergency Management or the state or federal agency responsible for those resources;
- Preempts any local order or rule to the extent it is inconsistent with orders, proclamations, or rules issued by the governor or the Department of State Health Services;
- Voids any order issued by a city to the extent it is inconsistent with orders issued by the county judge;
- Provides that if the presiding officer of the governing body of a taxing unit issues an order closing private business, the taxing unit may not adopt a tax rate for the current tax year that exceeds the lesser of the unit’s no-new-revenue tax rate or voter-approval tax rate for that year;
- Requires personnel surge capacity planning to include plans for providing PPE to physicians, health care professionals, and pandemic relief workers and volunteers;
- Makes conforming changes to Chapter 418, Government Code;
- Applies the liability protections retroactively to March 13, 2020
