On Monday, May 18, Governor Greg Abbott signed Executive Order GA-23 (EO). This latest EO contains some provisions that took effect immediately, some provisions that took effect Friday, May 22, and some provisions that will not take effect until May 29. Collectively these provisions constitute “Phase 2” of the governor’s plan to reopen businesses and activities across the state. The EO is effective through June 3. At that time, Texas may be ready for Phase 3 of reopening or it may be necessary to extend the EO.
Under previous EOs, Texas distinguished between essential services and reopened services. Religious services have always been considered “essential services” under the Governor’s EOs in Texas. This latest EO, uses new terminology to describe services in Texas and it can create some confusion. All services mentioned in the EO are called “covered services” and only covered services are allowed to remain open. Each covered service has its specific rules about social distancing and each covered service has a separate list of Minimum Standard Health Protocols.
Like previous EOs, the latest EO specifically states “religious services conducted in churches, congregations, and houses of worship” as a type of covered service that is not only allowed to remain open, but is “not subject to the conditions and limitations, including occupancy limits…” As a result, church worship services 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.
Gov. Abbott also emphasized that although certain businesses may be authorized to reopen under Phase 2, businesses are certainly not required to open. Some churches may still choose not to have in-person gatherings until the church can be certain it has taken the steps necessary to meet Minimum Standard Health Protocols for churches. The three-page checklist of Minimum Standard Health Protocols for churches can be found here. Additionally, on May 18, Gov. Abbott released Minimum Standard Health Protocols for church attendees. That two-page checklist can be found here. Some churches may choose to provide the attendee checklist to their members and encourage them to read them prior to attending an in-person worship service.
It is important to note that while worship services are clearly “religious services” and therefore exempt from occupancy requirements, it is not as clear whether church office operations also qualify. Work conducted in a church office is certainly religious in nature, but it may not be the type of “service” that is contemplated by the EO. Under the EO, services provided by office workers in offices are allowed, but may only “operate at up to the greater of (i) ten individuals, or (ii) 25 percent of the total office workforce,” provided, “the individuals maintain appropriate social distancing.” These restrictions may apply to church offices.
There are also some potential ministry-changing new openings under the Phase 2 EO as well.
First, all child care services (other than youth camps) may operate effective immediately. This includes church daycares and early learning centers.
Second, beginning on Friday, May 29, youth camps, including summer camps, day camps, and overnight camps may open. Although not mentioned by name in the EO, Gov. Abbott specifically mentioned Vacation Bible School as a type of church activity that was allowed under this EO. Occupancy limits do not apply to outdoor "areas, events, facilities, or establishments." An exception to the no occupancy limits outdoors are pools. The occupancy of pools is limited to 25 percent. Just as with churches, summer camps have standard minimum health protocols to follow. Unlike with churches, the protocols for camps are mandatory instead of optional. As a result, some camps will not be ready to reopen in June while other camps have cancelled all of their camps for the summer.
An important caveat to the reopening of day cares and camps are the 5 counties in which the EO delays openings. The Governor described Deaf Smith, El Paso, Moore, Potter, and Randall counties as “hotspots” and these covered activities cannot resume in those counties until June 5.
Third, the EO clarifies that churches may use school campuses for religious services or other allowed services. Because school buildings had previously been ordered to remain closed for the 2019-2020 academic year, there was confusion over whether churches that meet in school buildings were allowed to hold their worship services there while the school remained closed. The latest EO clarifies that those churches can hold religious services in the school building.
Finally, private schools and institutions of higher education may reopen campuses. This includes religious primary and secondary schools. Though they are not required to, religious schools are encouraged to follow the same minimum standard health protocols issued by the Texas Education Agency (TEA) for public schools.
The new EO will supersede any local orders. As a result, even if a church is located in a county or city with a more restrictive EO, the Governors’ EO is the controlling law. This ensures that the standards for churches remain uniform across the State of Texas.
The intent of this article is to help church staff and church leaders understand how the new EO will be applied to churches and their ministries 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 including church camp, day care, private primary or secondary schools, or Vacation Bible Schools is the decision of that individual congregation. Churches should prayerfully consider if the permissible action is also the right action.
Click here to view Executive Order GA-23 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.
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