On Monday, April 27, Governor Greg Abbott announced that he will allow Executive Order GA-16 (the old EO) to expire, as scheduled, at the end of the month. It will be replaced with Executive Order GA-18 (the new EO). The new EO will take effect beginning May 1. Under the new EO, Texas will enter “Phase 1” of reopening businesses across the state. If all goes well, Texas will be able to move into “Phase 2” of reopening the Texas economy as early as May 18.
Under the new EO, retail stores, restaurants, movie theaters, and malls may reopen beginning this Friday. Libraries, museums, and outdoor sports will be open on a limited basis. Additionally, "reopening services" are restricted to 25% occupancy at any particular time. Gov. Abbott said maximum occupancy for reopening businesses will be increased to 50% occupancy when Phase 2 begins. In counties with fewer than five cases of COVID-19, as reported in compliance with the standards of the Texas Department of State Health Services, reopening services in Phase 1 will be allowed to have 50% occupancy. Gov. Abbott says this will apply to half of the counties in Texas. However, under the new EO, barbershops, hair salons, and gyms will remain closed. Abbott hopes to reopen these businesses in Phase 2 and is optimistic Phase 2 can begin in mid-May.
The new EO also specifically mentions houses of worship. Churches are still defined as “essential services” and are allowed to remain open under the new EO. Along with the new EO, Gov. Abbott and Attorney General Ken Paxton have released updated "Guidance for Houses of Worship as Texas Reopens." Click here to view.
Because churches are "essential businesses" not "reopened businesses" under the new EO, they are not required to follow any occupancy guidelines and are not subject to any occupancy restrictions. However, the Minimum Standard Health Protocols recommend churches, “alternate rows between attendees (every other row left empty)” and “keep at least two empty seats (or six feet of separation)” between people not in the same household on either side. The practical result of following these recommendations is a drastic reduction on the maximum occupancy during a worship service. The three-page checklist of Minimum Standard Health Protocols for churches can be read here.
The new EO does not address camps. Gov. Abbott said his strike force is still working on plans to reopen summer camps. At the moment, church camps in Texas are still closed.
The new EO will supersede any local orders. This means even if a church is located in a county or city with a more restrictive EO, the Governors’ EO is the controlling law. This is good news for churches as it provides statewide clarity. If the Governor had simply allowed the old EO to expire without replacing it with a new EO, Texas would be left with a “piecemeal” approach where churches in different cities would be operating under different rules. The recommendations and rights for churches in the new EO means that standards remain uniform across the State of Texas.
Gov. Abbott also emphasized that although certain businesses may be authorized to reopen under Phase 1, businesses are certainly not required to open. Some churches may still choose not to have in-person gatherings for a few more weeks in order to take the steps necessary to meet Minimum Standard Health Protocols for churches. The intent of this article is to help church staff and church leaders understand how the new EO taking effect May 1 will be applied to churches in Texas, and to help churches understand their rights under the law. This article does not offer an opinion as to whether a church should return to in-person services. As the “Guideline for Houses of Worship” says, “houses of worship should conduct as many of their activities as possible remotely.” From a legal perspective, when and how a church in Texas returns to in-person gatherings is the decision of that individual congregation. Churches should prayerfully consider if the permissible action is also the right action.
Click here to view “The Governor’s Report to Open Texas” from April 27 in its entirety.
Attorney John Litzler directs the church law division of Christian Unity Ministries in San Antonio. He also serves as a BGCT legal consultant to assist Texas Baptist churches in understanding various legal issues.
Disclaimer: This article provides general information and a general understanding of the law and does not constitute specific legal advice. By utilizing the Texas Baptist website, you understand that there is no attorney/client relationship between you/your church and the author or between you/your church and the Baptist General Convention of Texas. This article should not be used as a substitute for competent legal advice from a licensed professional attorney in your state with the specifics of your situation.