Update: HB 3 Passes House, Moves to Senate

The omnibus pandemic response bill, HB 3 by Rep. Dustin Burrows (R-Lubbock), has passed the House and been received in the Senate. Initially heard on March 11, HB 3 underwent substantial changes during its eight weeks in committee and again on the House floor. The engrossed version 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. Changes to HB 3 on the House floor are reflected in italics. The engrossed version of the bill:

• Establishes the Texas Epidemic Public Health Institute at the University of Texas Health Science Center in Houston for the purpose of creating and maintaining a public health reserve network of public health professionals, community health workers, state and local public health agencies, health care organizations, universities, and others to coordinate and support epidemic and pandemic response and make recommendations to the Pandemic Disaster Legislative Oversight Committee;
• Creates the Pandemic Disaster Legislative Oversight Committee composed of 16 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, chairs of Senate Education and House Public Education, chairs of Senate Criminal Justice, and House Committee on Criminal Jurisrprudence, and two additional members appointed each by the lieutenant governor and speaker to ensure ethnic minority representation;
• Provides that the oversight committee must convene on or as soon as practicable after the date a state pandemic disaster is first renewed by the governor unless the legislature is convened in regular or special 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 gubernatorial rules or orders;
• Establishes a separate chapter, Chapter 418A, Government Code, to govern pandemic disasters;
• Bars the governor during a declared state of pandemic disaster from issuing an executive order, proclamation, or regulation that limits or prohibits a nonelective medical procedure, and limits the governor’s authority to place a temporary prohibition on a medical procedure other than a nonelective procedure and the duration of such an order to 15 days (subject to renewal);
• Provides civil and criminal immunity to a person who in good faith acts or fails to act in accordance with a gubernatorial order temporarily prohibiting a medical procedure other than a nonelective procedure;
• 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;
• Prohibits the presiding officer of the governing body of a political subdivision from restricting in-person visitation for residents of nursing facilities, assisted living facilities, and intermediate care facilities for individuals with intellectual disabilities, as well as state supported living center;
• Prohibits the governor or the presiding officer of a governing body of a political subdivision from issuing an order requiring a public or private golf course, state park, or public beach to close;
• 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;
• Terminates application of immunity from civil liability for nursing facilities on November 1, 2020;
• 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;
• Limits the duration of a declaration of pandemic disaster to 30 days unless renewed by the governor, provided that the legislature in regular session may at any time terminate the disaster declaration, and if the legislature is not in session, the Pandemic Disaster Oversight Committee may at any time terminate a declaration in effect for more than 30 days following the governor’s renewal of the declaration or terminate any proclamations, rules, or orders issued by the governor or a political subdivision;
• Limits the total duration of a declaration of pandemic disaster to 90 days from the date of the original declaration unless the governor, before the 90^th day, either calls the legislature into special session or sends a message to the legislature convened in regular session requesting consideration of whether to modify or terminate the declaration;
• 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;
• 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;
• Requires TDEM to establish a statewide emergency management system to respond to a pandemic disaster;
• Makes conforming changes to Chapter 418, Government Code;
• Adds §241.012, Health and Safety Code, to prohibit a hospital from banning in-person visitation with a patient unless federal law or a federal agency has so required, provided that the attending physician may determine that in-person visitation with that patient may lead to transmission of an infectious agent that poses a serious community health risk (a determination is valid for five days);
• Requires the hospital to provide certain information to a visitor denied entry by an attending physician;
• Bars a hospital from prohibiting in-person visitation by a religious counselor with a patient who is seriously ill or dying for a reason other than the counselor’s refusal to comply with safety measures;
• Allows a hospital to restrict the number of visitors and require visitors to complete a health screening and wear PPE, and deny entry to visitors who refuse to comply;
• Grants immunity from civil and criminal liability, as well as administrative sanctions to hospitals and physicians if a visitor contracts or spreads an infectious disease while visiting the hospital’s premises except on a showing of intentional misconduct or gross negligence;
• Applies the liability protections retroactively to March 13, 2020;
• Requires, if the state receives $1 billion or more in pandemic disaster relief from the federal government after the governor has signed and the comptroller certified SB 1 (General Appropriations Act, 2021), the House Appropriations and Senate Finance Committees to hold public hearings and approve the expenditure of federal funds not later than 120 days after the enactment of federal legislation.