Lauren Drewes Daniels
Audio By Carbonatix
Last week we reported that Texas Gov. Greg Abbott’s latest executive order, GA-38, prohibits any private business that “is receiving or will receive any public fund through any means, including grants, contracts, loans or other disbursement of taxpayer money” from requiring consumers to provide proof of vaccination.
Over the past 19 months, many restaurant operators applied for and received Paycheck Protection Program loans, while others received federal grants through the Biden Administration’s Restaurant Revitalization Fund. Now as the Delta-variant of the virus that causes COVID-19 pushes hospitalization rates to new highs, many businesses are rethinking their safety protocols, including asking customers to mask up, or employees and/or customers to get vaccinated.
After posting the original article about the governor’s executive order last week, some on Facebook questioned the legitimacy of the order, specifically since it attaches conditions to a past action and is a state mandate assigned to federal dollars. While others just had opinions:
Brian Guei
Isn’t PPP loan from federal government? What gives Abbott authority over federal money ex post facto?Katherine Clapner
How does he have authority to make this claimSander Wolf
What an asshole.
Dallas County Judge Clay Jenkins thinks the executive order is “unenforceable on its face,” and told us in a phone interview Monday that a government can’t stand in the way of a response to an emergency.
Jenkins added that a government official can’t benefit from the response to an emergency. In this case, he says, Abbott wants to curry favor with Republican primary voters.
“The governor is looking at polls and people they want to get a benefit from for a future presidential run,” Jenkins says. “But, the law doesn’t give them the power to stop a response.”
As for attaching conditions to federal funds restaurants received, Jenkins points the laws ex post facto laws, meaning those that retroactively change the consequences of an action, are expressly forbidden in the U.S. Constitution.
Overall, Jenkins says GA-38 “wasn’t written with much legal thought.” Pointing out ridiculous clauses that would make it illegal for a parent who works for the government to tell their child to put on a mask.
On Monday evening, Jenkins filed a temporary restraining order over parts of GA-38 regarding masks.
Earlier this evening I filed a Temporary Restraining Order and declaratory judgment in my official capacity as your Dallas County Judge against Governor Greg Abbott seeking to hold portions of GA 38 regarding mask mandates unenforceable… 1/
— Clay Jenkins (@JudgeClayJ) August 9, 2021
Jenkins’ Advice For Now
As for what restaurants should do now as hospitalization rates are climbing, Jenkins suggests business operators look at their situation and do the right thing.
“I don’t think GA-38 is enforceable and it’s incredibly important that our employees trust us,” Jenkins says. “Listen to local doctors and the CDC, don’t necessarily listen to an elected official if they’re veering from the CDC.”
Jenkins also says that business owners have the right to run their business as they choose, “If you choose to tell staff to vax, there’s good reason to do so.”
As far as guidance for diners, Jenkins says vaccinated individuals age 65 or older should only eat outdoors or get takeout and wear a mask when out. Those who are vaccinated, 64 and younger can eat indoors, but they should stay 6 feet apart from other diners and wear a mask when not eating or drinking.
We reached out to the governor’s office three times and they did not respond to our request for clarification on GA-38.
