Abbott can do what he’s doing, legal experts agree

An email shopped around to news outlets around Texas poses this question: What authority does Gov. Greg Abbott have to order businesses closed and freedoms limited during the present coronavirus pandemic?

The email sender, who described himself as a concerned citizen, included the text of several portions of state law dealing with a governor's power during a disaster. The law defines disaster as "the occurrence or imminent threat of widespread or severe damage, injury, or loss of life or property resulting from any natural or man-made cause, including fire, flood, earthquake, wind, storm ... epidemic" and several other examples.

"A simple reading of the law does not account for possible infection by a disease which may or may not require hospitalization," the person said. "COVID-19 does not suddenly occur like a car accident or a tornado, so it is clear that is not imminent. Otherwise any disease could be considered an imminent threat and society could be locked down in perpetuity."

Those concerns were presented to three experts: a University of Texas law professor who just finished teaching a course on the powers of Texas' elected officials, a Southern Methodist University professor of health care law and the former state legislator who wrote one of the most recent updates to Texas Disaster Act of 1975, the law cited in the email.

Their responses in a nutshell: Abbott is operating well within the legal parameters set forth in the statutes he frequently cited in his 15 executive orders issued since the coronavirus outbreak was declared a pandemic by the World Health Organization and a national emergency by President Donald Trump.

"When it came to emergency management, I believe, (authority) was solidified under the governor," said former state Rep. Frank Corte, R-San Antonio.

Corte authored the 2009 legislation that made clear the governor's Division of Emergency Management has the responsibility of "identifying, mobilizing, and deploying state resources to respond to major emergencies and disasters throughout the state."

But even though the virus has been labeled a pandemic, which is an epidemic spread over a larger area, the infection rate and the death count were comparatively low in Texas when Abbott issued his first orders, the email sender noted.

Perhaps true, responded UT law professor Randy Erben, whose course was called “Inside Texas Government: How It Really Works." But the statute was purposely designed to give the governor wide latitude to act unilaterally during emergencies because Texas operates with a part-time Legislature.

"Texas meets only five months every two years in legislative session. That makes it difficult," Erben said. "Any time you'd have a Hurricane Harvey, a COVID-19 pandemic, (the governor) would have to call the Legislature back into special session to deal with it."

Had the governor chosen to call lawmakers back to Austin, then waited for a package of legislation to be crafted or for them to spell out specific actions he could take unilaterally, there's no telling how many more people might have been infected and died from the illness, Erben said.

"By any measure, this is a public emergency," said Erben, who was on Abbott's staff early in the governor's first term. "And there is imminent threat of widespread damage, injury and loss of life."

SMU law professor Nathan Cortez said the law guiding Abbott's actions "has to be broad to give public health experts discretion to tackle unforeseen and unpredictable health risks."

By issuing a disaster declaration, the law allows the governor to, in effect, grant himself broad power – including limiting the size of public gatherings, suspending elective surgeries and curtailing business operations.

There are checks on a governor's exercise of power. However, those would take time. The courts could be asked to rule that a governor is acting outside the scope of the statute or even outside the limits of the Texas Constitution, they said.

Or, if lawmakers believe a governor encroached on the constitutional authority of the Legislature, they could enact measures to tighten the leash of gubernatorial power, they added.

"It's essential that we have knowledge of who has what power to help the people," said Corte, who served in the Legislature from 1993 to 2013. Equally important, he added, is that the power isn’t "abused, misinterpreted and not helpful – whether it's a hurricane, flood or pandemic."