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.