88R9827 JON-F
By: Hunter H.B. No. 4440
A BILL TO BE ENTITLED
AN ACT
relating to state and local government responses to a pandemic
disaster, including the establishment of the Pandemic Disaster
Legislative Oversight Committee.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Subtitle C, Title 3, Government Code, is amended
by adding Chapter 330 to read as follows:
CHAPTER 330. PANDEMIC DISASTER LEGISLATIVE OVERSIGHT COMMITTEE
Sec. 330.001. DEFINITIONS. In this chapter:
(1) "Committee" means the Pandemic Disaster
Legislative Oversight Committee.
(2) "Pandemic disaster" has the meaning assigned by
Section 418A.003(2).
Sec. 330.002. ESTABLISHMENT; COMPOSITION. (a) The Pandemic
Disaster Legislative Oversight Committee is established to:
(1) consider the impact on this state and its
residents of a state of pandemic disaster declared by the governor;
and
(2) provide legislative oversight of pandemic
disaster declarations.
(b) The committee is composed of 16 members as follows:
(1) the lieutenant governor;
(2) the speaker of the house of representatives;
(3) the chair of the Senate Committee on Finance or its
successor;
(4) the chair of the Senate Committee on State Affairs
or its successor;
(5) the chair of the Senate Committee on Health and
Human Services or its successor;
(6) the chair of the Senate Committee on Education or
its successor;
(7) the chair of the House Committee on Appropriations
or its successor;
(8) the chair of the House Committee on State Affairs
or its successor;
(9) the chair of the House Committee on Public Health
or its successor;
(10) the chair of the House Committee on Public
Education or its successor;
(11) two additional members appointed by the
lieutenant governor and two additional members appointed by the
speaker of the house to ensure ethnic minority representation on
the committee from the respective ethnic communities;
(12) the chair of the House Committee on Criminal
Jurisprudence or its successor; and
(13) the chair of the Senate Committee on Criminal
Justice or its successor.
(c) Notwithstanding Subsection (b), any member of the
senate or house of representatives may submit a written request to
the joint chairs of the committee to participate in the committee's
proceedings to the extent practical. When participation is not
practical, the joint chairs of the committee must establish
procedures for requesting members to audit proceedings and must
provide to requesting members updates on committee proceedings.
Sec. 330.003. JOINT CHAIRS. The lieutenant governor and
speaker of the house of representatives serve as joint chairs of the
committee.
Sec. 330.004. POWERS AND DUTIES. (a) The committee may act
only when the legislature is not convened in regular or special
session.
(b) The committee is authorized to:
(1) review any state of pandemic disaster declaration
issued by the governor under Chapter 418A that is in effect for more
than 30 days following the governor's renewal of the declaration
under that chapter;
(2) review proclamations, orders, or rules issued or
adopted by the governor and any orders issued by a county or
municipality for the pandemic disaster declaration; and
(3) terminate in accordance with Section 418A.055:
(A) the state of pandemic disaster; or
(B) provisions of proclamations, orders, or
rules issued or adopted by the governor or orders issued by a county
or municipality for the pandemic disaster declaration.
(c) Except as otherwise provided by this chapter, the
committee has all other powers and duties provided to a special
committee by:
(1) Subchapter B, Chapter 301;
(2) the rules of the senate and house of
representatives; and
(3) policies of the senate and house committees on
administration.
Sec. 330.005. MEETINGS; QUORUM. (a) The committee shall
meet at the call of the joint chairs.
(b) The joint chairs shall convene the committee on or as
soon as practicable after the date a state of pandemic disaster is
first renewed by the governor under Chapter 418A unless the
legislature is convened in regular or special session.
(c) A majority of the members of the committee from each
house constitutes a quorum to transact business. Termination of a
state of pandemic disaster may only be ordered by a majority of the
committee's membership. If a quorum is present, the committee may
act on any other matter within its jurisdiction by a majority vote.
(d) Notice of a meeting of the committee must be posted at
least five calendar days before the date of the meeting, in the same
manner that meeting notices are posted for standing committees of
the senate and house of representatives.
(e) As an exception to Chapter 551 and other law, the
committee may meet by use of video conference call. This subsection
applies for purposes of constituting a quorum, for purposes of
voting, and for any other purpose allowing a member of the committee
to fully participate in a meeting of the committee. A meeting held
by use of video conference call:
(1) must be open to the public, including by video
broadcasting the meeting in real time through the Internet website
of the senate or house of representatives;
(2) must specify in the meeting notice the link to the
video broadcast described by Subdivision (1); and
(3) must provide for the entire meeting two-way video
communication between all committee members attending the meeting,
and if, at any time, the two-way video communication link with a
member attending the meeting is disrupted, the meeting may not
continue until that link is reestablished.
SECTION 2. Subtitle B, Title 4, Government Code, is amended
by adding Chapter 418A to read as follows:
CHAPTER 418A. PANDEMIC EMERGENCY MANAGEMENT
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 418A.001. SHORT TITLE. This chapter may be cited as
the Texas Pandemic Response Act.
Sec. 418A.002. PURPOSES. The purposes of this chapter are
to:
(1) protect and preserve individual liberties
guaranteed under the United States Constitution and the Texas
Constitution;
(2) reduce the vulnerability of residents and
communities in this state to damage, injury, and loss of life and
property resulting from a pandemic disaster;
(3) prepare for prompt and efficient care and
treatment of persons victimized or threatened by a pandemic
disaster;
(4) maintain employment levels for state residents to
the extent possible;
(5) provide a setting conducive to the rapid and
orderly restoration and rehabilitation of persons and property
affected by a pandemic disaster;
(6) clarify the roles of the governor, state agencies,
the judicial branch of state government, and the political
subdivisions of this state in the prevention of, preparation for,
response to, and recovery from a pandemic disaster;
(7) authorize and provide for cooperation in pandemic
disaster mitigation, preparedness, response, and recovery;
(8) authorize and coordinate activities relating to
pandemic disaster mitigation, preparedness, response, and recovery
by state agencies and officers and similar state-local, interstate,
federal-state, and foreign activities in which this state and the
political subdivisions of this state may participate;
(9) provide an emergency management system addressing
all aspects of pandemic preparedness and response; and
(10) assist in the mitigation of pandemic disasters
aggravated by inadequate planning for and regulation of public and
private resources.
Sec. 418A.003. DEFINITIONS. In this chapter:
(1) "Division" means the Texas Division of Emergency
Management.
(2) "Pandemic disaster" means the occurrence or
imminent threat of an outbreak of an infectious disease that
spreads to a significant portion of the state population and that
threatens widespread or severe damage, injury, or loss of life or
property in more than one-fourth of the counties in this state
resulting from any natural or man-made cause related to the
outbreak.
(3) "Political subdivision" means a county or
municipality.
Sec. 418A.004. LIMITATIONS. This chapter does not:
(1) grant the governor authority to enact law;
(2) expand the authority granted to the governor under
Chapter 418;
(3) limit the authority of the governor or the
presiding officer of the governing body of a political subdivision
to apply for, administer, or spend a grant, gift, or payment in aid
of pandemic disaster mitigation, preparedness, response, or
recovery;
(4) interfere with the course or conduct of a labor
dispute, except that actions otherwise authorized by this chapter
or other laws may be taken when necessary to forestall or mitigate
imminent or existing danger to public health or safety;
(5) interfere with dissemination of news or comment on
public affairs, provided any communications facility or
organization, including radio and television stations, wire
services, Internet and cellular services, and newspapers, may be
requested to transmit or print public service messages providing
information or instructions in connection with a pandemic disaster
or potential pandemic disaster;
(6) affect the jurisdiction or responsibilities of a
law enforcement agency, fire department, or unit of the armed
forces of the United States, or any of their personnel when on
active duty, if state, local, or interjurisdictional emergency
management plans rely on the agencies, departments, or units to
perform duties related to pandemic disasters;
(7) limit, modify, or abridge the authority of the
governor to exercise any other power vested in the governor under
the constitution or laws of this state independent of or in
conjunction with any provision of this chapter;
(8) authorize the seizure or confiscation of any
firearm or ammunition from an individual who is lawfully carrying
or possessing the firearm or ammunition;
(9) authorize any person to prohibit or restrict the
business operations of a firearms or ammunition manufacturer,
distributor, wholesaler, supplier, or retailer or a sport shooting
range, as defined by Section 250.001, Local Government Code;
(10) affect the level of scrutiny for judicial review
of constitutional violations;
(11) delegate to any governmental official the
authority to modify election procedures;
(12) authorize any governmental official to mandate
that an individual obtain a vaccination;
(13) create any new legal duty for a negligence claim
or a new cause of action; or
(14) authorize any governmental official to force a
business to close or limit the operating capacity or use of a
business.
Sec. 418A.0045. LIMITATIONS ON MEDICAL PROCEDURES. (a) In
this section, "nonelective medical procedure" means a medical
procedure, including a surgery, a physical exam, a diagnostic test,
a screening, the performance of a laboratory test, and the
collection of a specimen to perform a laboratory test, that if not
performed within a reasonable time may, as determined in good faith
by a patient's physician, result in:
(1) the patient's loss of life; or
(2) a deterioration, complication, or progression of
the patient's current or potential medical condition or disorder,
including a physical condition or mental disorder.
(b) The governor during a declared state of pandemic
disaster may not issue an executive order, proclamation, or
regulation that limits or prohibits a nonelective medical
procedure.
(c) The governor during a declared state of pandemic
disaster may issue an executive order, proclamation, or regulation
imposing a temporary limitation or prohibition on a medical
procedure other than a nonelective medical procedure only if the
limitation or prohibition is reasonably necessary to conserve
resources for nonelective medical procedures or resources needed
for disaster response. An executive order, proclamation, or
regulation issued under this subsection may not continue for more
than 15 days unless renewed by the governor.
(d) A person subject to an executive order, proclamation, or
regulation issued under this section who in good faith acts or fails
to act in accordance with that order, proclamation, or regulation
is not civilly or criminally liable and is not subject to
disciplinary action for that act or failure to act.
(e) The immunity provided by Subsection (d) is in addition
to any other immunity or limitation of liability provided by law.
(f) Notwithstanding any other law, this section does not
create a civil, criminal, or administrative cause of action or
liability or create a standard of care, obligation, or duty that
provides the basis for a cause of action for an act or omission
under this section.
Sec. 418A.005. APPLICABILITY OF OTHER LAW. (a) The
following provisions of Chapter 418 apply to a state of pandemic
disaster declared under this chapter:
(1) Subchapter C-1;
(2) Subchapter D;
(3) Section 418.107;
(4) Section 418.1075;
(5) Section 418.108;
(6) Section 418.171;
(7) Section 418.1881;
(8) Section 418.1882;
(9) Section 418.191; and
(10) Section 418.195.
(b) Notwithstanding Subsection (a)(5), the provisions of
Section 418.108 apply to a state of pandemic disaster declared
under this chapter only to the extent the local declaration is
issued for the purposes of applying for, administering, or spending
a grant, gift, or payment in aid of pandemic disaster mitigation,
preparedness, response, or recovery.
Sec. 418A.006. CONFLICT WITH OTHER LAW. To the extent of
any conflict between this chapter and Chapter 418, this chapter
controls.
Sec. 418A.007. PROHIBITIONS. (a) The presiding officer of
the governing body of a political subdivision may not issue an order
during a declared state of pandemic disaster or local state of
pandemic disaster that:
(1) requires businesses or industries to close;
(2) distinguishes between types of businesses or
industries in limiting operation capacities; or
(3) restricts in-person visitation for residents of:
(A) nursing facilities, assisted living
facilities, and intermediate care facilities for individuals with
an intellectual disability that are licensed under Subtitle B,
Title 4, Health and Safety Code; and
(B) state supported living centers, as defined by
Section 531.002, Health and Safety Code.
(b) The governor or the presiding officer of the governing
body of a political subdivision may not issue an order during a
declared state of pandemic disaster or local state of pandemic
disaster that requires a public or private golf course to close.
(c) The governor or the presiding officer of the governing
body of a political subdivision may not issue an order during a
declared state of pandemic disaster or local state of pandemic
disaster that requires a state park to close.
Sec. 418A.0071. PROHIBITION ON CLOSURE OF PUBLIC BEACHES.
During a declared state of pandemic disaster or local state of
pandemic disaster, a governmental entity, including a political
subdivision and state agency, may not issue an order, promulgate a
rule, adopt or enforce a policy, or otherwise restrict access to or
a means of accessing a public beach, as defined by Section 61.001,
Natural Resources Code.
Sec. 418A.008. CIVIL LIABILITY DURING PANDEMIC DISASTER.
(a) Section 418.006 applies during a declared state of pandemic
disaster.
(b) A business or an entity operating during a pandemic
disaster in this state is not liable for an injury caused by
exposing or potentially exposing an individual to a disease if on
the date of the exposure or potential exposure:
(1) the business or entity is authorized to conduct
business in this state;
(2) the business or entity made a reasonable effort to
comply with applicable and controlling state and local laws, rules,
ordinances, declarations, and proclamations related to the
pandemic disaster; and
(3) the act or omission giving rise to the exposure or
potential exposure was not wilful, reckless, or grossly negligent.
(c) 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 or the governor's designee is not liable
for an injury caused by the goods or services, regardless of the
circumstances, provided the act or omission giving rise to the
injury was not wilful, reckless, grossly negligent, or inconsistent
with a limit specified in the governor's request.
(d) The immunity provided by this section is in addition to
the immunity and limitations of liability provided by other law.
(e) This section does not create a civil cause of action.
(f) The immunity provided by this section applies to nursing
facilities licensed under Chapter 242, Health and Safety Code, only
with respect to an act or omission that occurred before November 1,
2020.
SUBCHAPTER B. POWERS AND DUTIES OF GOVERNOR
Sec. 418A.051. EXECUTIVE ORDERS, PROCLAMATIONS, AND RULES.
(a) Subject to Section 418A.052, the governor may issue, amend, or
rescind an executive order, proclamation, or rule to further the
purposes of this chapter.
(b) An executive order, proclamation, or rule issued by the
governor under this chapter has the force and effect of law.
Sec. 418A.052. LIMITATION ON CERTAIN EXECUTIVE ORDERS,
PROCLAMATIONS, AND RULES. (a) This section applies only to an
executive order, proclamation, or rule issued under this chapter
that has the effect of mandating the wearing of a face covering.
(b) An executive order, proclamation, or rule described by
Subsection (a) may continue for more than 30 days only if the
governor during that period issues:
(1) a proclamation convening the legislature in
special session that begins during that period to consider whether
to modify or terminate the executive order, proclamation, or rule;
or
(2) if the legislature is convened in regular or
special session, a message to the legislature requesting the
legislature's consideration of whether to modify or terminate the
executive order, proclamation, or rule.
(c) The governor may not issue a new executive order,
proclamation, or rule based on the same or a substantially similar
finding as a prior executive order, proclamation, or rule that was
terminated by the legislature while the legislature is in session.
Sec. 418A.053. LIMITATIONS ON AUTHORITY OF GOVERNOR. (a)
Except as expressly provided by this chapter, the governor may
exercise the same authority the governor is granted under
Subchapter B, Chapter 418, to address a declared state of pandemic
disaster.
(b) The following provisions of Subchapter B, Chapter 418,
do not apply during a declared state of pandemic disaster:
(1) Section 418.014;
(2) Sections 418.016(b), (c), and (d);
(3) Section 418.019;
(4) Section 418.0195; and
(5) Section 418.023.
Sec. 418A.054. RELIGIOUS FREEDOM. Actions taken under a
declared state of pandemic disaster must satisfy the religious
freedom protections of Chapter 110, Civil Practice and Remedies
Code, and the Religious Freedom Restoration Act of 1993 (42 U.S.C.
Section 2000bb et seq.).
Sec. 418A.055. DECLARATION OF STATE OF PANDEMIC DISASTER.
(a) The governor by executive order or proclamation may declare a
state of pandemic disaster if the governor determines that a state
of pandemic disaster is occurring in this state or that the
occurrence or threat of a pandemic disaster is imminent.
(b) Subject to Subsections (c), (c-1), and (d), a state of
pandemic disaster continues until the governor:
(1) determines that:
(A) the threat of a pandemic disaster has passed;
or
(B) the pandemic disaster has been addressed to
the extent that emergency conditions no longer exist; and
(2) terminates the state of pandemic disaster by
executive order or proclamation.
(c) A state of pandemic disaster may not continue for more
than 30 days unless renewed by the governor. If the legislature is
convened in regular or special session, the legislature by law may
at any time terminate a declared state of pandemic disaster. If the
legislature is not convened in session, the Pandemic Disaster
Legislative Oversight Committee established under Chapter 330 may
at any time terminate:
(1) a state of pandemic disaster that is in effect for
more than 30 days following the governor's renewal of the
declaration; or
(2) provisions of proclamations, orders, or rules
issued or adopted by the governor or of orders issued by a political
subdivision for the pandemic disaster declaration described by
Subdivision (1).
(c-1) A state of pandemic disaster renewed by the governor
under Subsection (c) may not continue unless, on or before the 90th
day after the date the state of pandemic disaster is initially
declared, the governor:
(1) if the legislature is convened in regular or
special session, issues a message to the legislature requesting the
legislature's consideration and determination, not later than the
30th day after the date the message is issued, of whether to modify
or terminate the executive order or proclamation declaring the
state of pandemic disaster; or
(2) if the legislature is not convened in regular or
special session, issues a proclamation convening the legislature in
a special session that begins not later than the 30th day after the
date the proclamation is issued for the legislature to consider
whether to modify or terminate the executive order or proclamation
declaring the state of pandemic disaster.
(c-2) The governor must provide notice of a proclamation
convening the legislature under Subsection (c-1) not later than the
60th day after the state of pandemic disaster is initially
declared.
(d) The governor may not declare a new state of pandemic
disaster based on the same or a substantially similar finding as a
prior state of pandemic disaster that was terminated or not renewed
by the legislature or to circumvent a meeting of the Pandemic
Disaster Legislative Oversight Committee convened to review a state
of pandemic disaster declaration.
(e) On termination of a declared state of pandemic disaster
or a provision of a proclamation, order, or rule by the legislature
or the Pandemic Disaster Legislative Oversight Committee under this
section, the governor shall issue an executive order ending the
declared state of pandemic disaster or rescinding those provisions.
(f) An executive order or proclamation issued under this
section must:
(1) include:
(A) a description of the nature of the pandemic
disaster;
(B) a designation of the areas affected or
threatened; and
(C) a description of the conditions that caused
the pandemic disaster or allowed the termination of the pandemic
disaster; and
(2) be posted on the Internet website of the governor
and of any state agency affected by the proclamation or order.
(g) The governor shall:
(1) promptly disseminate a proclamation or order by
any means intended to bring its contents to the attention of the
public; and
(2) unless the circumstances related to the pandemic
disaster prevent or impede the filing, promptly file the
proclamation or order with:
(A) the division;
(B) the secretary of state; and
(C) the county clerk or municipal secretary in
each area in which the proclamation or order applies.
Sec. 418A.056. SALE AND TRANSPORTATION OF CERTAIN
MATERIALS. The sale, dispensing, or transportation of firearms and
ammunition may not be suspended or limited in response to a declared
state of pandemic disaster.
SUBCHAPTER C. LOCAL AND INTERJURISDICTIONAL PANDEMIC EMERGENCY
MANAGEMENT
Sec. 418A.101. PANDEMIC EMERGENCY MANAGEMENT DIRECTORS.
(a) The presiding officer of the governing body of a political
subdivision is designated as the pandemic emergency management
director for that political subdivision.
(b) A pandemic emergency management director serves as the
governor's designated agent in the administration and supervision
of duties under this chapter. A pandemic emergency management
director shall perform the duties prescribed by the emergency
management plan and implement the state of pandemic proclamation
and each executive order issued under this chapter.
(c) A pandemic emergency management director may designate
a person to serve as pandemic emergency management coordinator.
The pandemic emergency management coordinator shall serve as an
assistant to the pandemic emergency management director for
pandemic emergency management purposes.
(d) A person, other than a pandemic emergency management
director, may not seize state or federal resources without prior
authorization from the division or the state or federal agency
responsible for those resources.
Sec. 418A.102. PREEMPTION. (a) Any local order or rule
issued in response to a state or local state of pandemic disaster is
superseded and void to the extent that it is inconsistent with
proclamations, orders, or rules issued by the governor or the
Department of State Health Services.
(b) Any order issued by a municipality in response to a
state or local state of pandemic disaster is superseded and void to
the extent that it is inconsistent with orders issued by the county
judge of the county in which the municipality is located.
Sec. 418A.103. LIMITATION ON AD VALOREM TAX RATE OF CERTAIN
POLITICAL SUBDIVISIONS. (a) In this section:
(1) "No-new-revenue tax rate" and "voter-approval tax
rate" have the meanings assigned by Section 26.04, Tax Code.
(2) "Tax year" has the meaning assigned by Section
1.04, Tax Code.
(b) This section applies only to a political subdivision:
(1) the presiding officer of the governing body of
which issues an order requiring the closure of a private business in
response to a pandemic disaster; and
(2) for which the governor issues a written
determination finding that the presiding officer of the governing
body of the political subdivision has taken an action described by
Subdivision (1).
(c) Notwithstanding Chapter 26, Tax Code, or any other law,
the governing body of a political subdivision to which this section
applies may not adopt an ad valorem tax rate for the current tax
year that exceeds the lesser of the political subdivision's
no-new-revenue tax rate or voter-approval tax rate for that tax
year.
(d) For purposes of making the calculation required under
Section 26.013, Tax Code, in a tax year in which this section
applies to a political subdivision, the difference between the
political subdivision's actual tax rate and voter-approval tax rate
is considered to be zero.
(e) A political subdivision is no longer subject to the
limitation prescribed by this section in the first tax year
following the governor's rescission of the written determination
issued under Subsection (b)(2).
(f) The governor shall adopt rules and procedures necessary
to determine whether the presiding officer of a political
subdivision has taken an action described by Subsection (b)(1).
SUBCHAPTER D. MISCELLANEOUS PROVISIONS
Sec. 418A.151. PERSONNEL SURGE CAPACITY PLANNING.
Personnel surge capacity planning conducted under this chapter for
declared states of pandemic disaster must include plans for
providing personal protective equipment to physicians, other
health care professionals, and pandemic disaster relief workers and
volunteers.
Sec. 418A.152. EMERGENCY MANAGEMENT SYSTEM. The division,
in collaboration with other appropriate persons selected by the
division, shall:
(1) establish a statewide emergency management system
to respond to a declared state of pandemic disaster;
(2) to the extent practicable include private wireless
communication, Internet, and cable service providers in the system;
and
(3) use the satellite communications equipment and
mobile telephone towers of the participating providers under
Subdivision (2) to assist in responding to a declared state of
pandemic disaster.
SECTION 3. Section 418.004(1), Government Code, is amended
to read as follows:
(1) "Disaster" means 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, wave action, oil spill or other
water contamination, volcanic activity, epidemic, air
contamination, blight, drought, infestation, explosion, riot,
hostile military or paramilitary action, extreme heat,
cybersecurity event, other public calamity requiring emergency
action, or energy emergency. The term does not include a pandemic
disaster as defined by Section 418A.003.
SECTION 4. Section 418.005(b), Government Code, is amended
to read as follows:
(b) Each person described by Subsection (a) shall complete a
course of training provided or approved by the division of not less
than three hours regarding the responsibilities of state and local
governments under this chapter and Chapter 418A not later than the
180th day after the date the person:
(1) takes the oath of office, if the person is required
to take an oath of office to assume the person's duties as a public
officer;
(2) otherwise assumes responsibilities as a public
officer, if the person is not required to take an oath of office to
assume the person's duties; or
(3) is designated as an emergency management
coordinator under Section 418.1015(c).
SECTION 5. Section 418A.0045, Government Code, as added by
this Act, applies only to an order, proclamation, or regulation
issued on or after the effective date of this Act.
SECTION 6. Section 418A.008, Government Code, as added by
this Act, applies only to a cause of action that accrued on or after
March 13, 2020. A cause of action that accrued before March 13,
2020, is governed by the law applicable to the cause of action
immediately before the effective date of this Act, and that law is
continued in effect for that purpose.
SECTION 7. This Act takes effect immediately if it receives
a vote of two-thirds of all the members elected to each house, as
provided by Section 39, Article III, Texas Constitution. If this
Act does not receive the vote necessary for immediate effect, this
Act takes effect September 1, 2023.