Texas Attorney General Opinion Finds That Governor’s Emergency Executive Orders Have “The Force and Effect of Law,” Including Criminal Penalties

October 17, 2023 | Insights

By Kate Goodrich

On September 10, 2021, Williamson County Attorney Dee Hobbs requested an “expedited” ruling from Texas Attorney General Ken Paxton in response to his question of whether executive orders issued by Abbott in response to the COVID-19 pandemic should be “criminally enforceable,” including against public servants who violate the orders. Just over two years later – on September 14, 2023 – he received this reply.

In Attorney General Opinion numbered AC-0005, the Office of the Attorney General (OAG) found that executive orders issued by Gov. Greg Abbott relating to the COVID-19 pandemic do “carry the force and effect of law,” including criminal penalties associated with violating the mandates.

The opinion details the history of the issue in context to the Covid-19 disaster in which Governor Greg Abbott declared a state of disaster in Texas due to COVID-19 on March 13, 2020, subsequently renewing it each month until June 2023. It specifically references Executive Order GA-38, which stated “[n]o governmental entity, including a county, city, school district, and public health authority, and no governmental official may require any person to wear a face covering or to mandate that another person wear a face covering[.]” In the opinion, OAG discusses whether or not criminal punishments against governmental officials who violated Executive Order GA-38 by imposing requirements that individuals wear face masks are enforceable. The opinion ultimately concludes that “[p]ursuant to section 418.012 of the Government Code, executive orders issued by the Governor pursuant to his emergency powers under chapter 418 have the ‘force and effect of law’. The Penal Code defines ‘law’ to include a rule authorized by and lawfully adopted under a statute. A court is therefore likely to conclude that executive orders authorized by and lawfully adopted pursuant to the Governor’s statutory emergency powers constitute ‘laws’ for purposes of subsection 1.07(a)(30) of the Penal Code.”

The opinion goes on to say that “[t]he Texas Legislature has given Governor Abbott the authority to issue executive orders in times of emergencies, and those orders have the force of a law. Given this clearly expressed intent from the Legislature, a court is likely to conclude that executive orders authorized by and lawfully adopted pursuant to state statute constitute ‘laws’ for purposes of subsection 1.07(a)(30) of the Penal Code.”

It is unclear the implications of this decision beyond the scope of Covid-19 disaster declarations. Please note that Executive Order GA-38 is no longer in effect.

The opinions expressed are those of the author and do not necessarily reflect the views of the firm, its clients, or any of their respective affiliates. This article is for informational purposes only and does not constitute legal advice. The laws of other states and nations may be entirely different from what is described. Your use of these materials does not create an attorney-client relationship between you and Jackson Walker. The facts and results of each case will vary, and no particular result can be guaranteed.

Kate Goodrich headshotMeet Kate

Kate Goodrich is a governmental affairs consultant and a licensed attorney in the Austin office of Jackson Walker. She started her career as a federally registered lobbyist in Washington, D.C., and grew to become a senior advisor to legislators at the Texas Capitol. She has worked directly with U.S. Senate and House of Representatives staff, the Texas Senate Health and Human Services Committee, the Senate Finance Committee, and the Senate Natural Resources and Economic Development Committee. Her background in state and federal government gives her an in-depth and practical knowledge of the legislative and appropriations processes.