Can a Texas county or judge require masks in courthouses and county buildings?

Plain-English summary

In the middle of 2020, with the COVID-19 disaster declaration in force, the Harris County Attorney, Vince Ryan, asked the Attorney General a practical governance question: who has the authority to require face coverings in county courtrooms, courthouses, and other county buildings, and how can that requirement be enforced when people refuse?

The AG identified several overlapping sources of authority rather than a single one. First, a commissioners court. The Constitution gives it power over county business, and Local Government Code section 291.001 makes it responsible for maintaining the courthouse and other county buildings; a 1938 Texas case (Dodson v. Marshall) held that the duty to provide a courthouse carries with it the power to regulate its use within reasonable bounds. So a commissioners court could require coverings in county-owned buildings to reduce the spread of COVID-19. Second, a judge. Courts have broad inherent power over their proceedings and reasonable attire, and separately the Texas Supreme Court issued an emergency order requiring courts to follow Office of Court Administration guidance, which called for face coverings in the courthouse. Third, a county judge operating under a local disaster declaration, who under Government Code section 418.108 can control the occupancy of premises during a disaster.

On enforcement, the AG pointed to Executive Order GA-29. Officials could fine a person up to $250 for a second violation and could remove or deny entry to those who refused, but they could not detain, arrest, or jail anyone for a face-covering violation. The order also let officials use trespassing law to remove violators.

The county attorney's last question was about conflicts: if different officials in the same county issued different orders, which one wins? The AG's answer was layered. A statewide executive order like GA-29 prevails over an order from a commissioners court or county judge. Where no executive order controls a particular building and several officials share control of the space, they should coordinate, and any remaining conflict can be resolved only by examining the specific orders and each official's authority, with possible separation-of-powers questions decided case by case.

Currency note

This opinion was issued in 2020, during the COVID-19 disaster, and it relies on Executive Orders GA-28 and GA-29, a disaster declaration, and Texas Supreme Court emergency orders that have since ended. Texas later restricted government mask mandates. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule or remedy mentioned here.

What the opinion meant for those who asked

The opinion mapped authority for a county lawyer trying to administer public buildings during the pandemic. For a commissioners court, the reading at the time was that its building-maintenance power supported a face-covering rule in county buildings. For judges, the opinion identified both inherent courtroom authority and a Texas Supreme Court emergency order adopting OCA guidance as bases for requiring coverings in the courthouse. For a county judge, it pointed to the local-disaster occupancy-control power in section 418.108, while a footnote flagged that Executive Order GA-28 had suspended part of that statute to the extent local restrictions conflicted with the Governor's order, limiting enforcement methods. For enforcement generally, the opinion described GA-29's capped fines and removal options and its bar on arrest or jail. On conflicts, the AG set a priority rule (executive orders prevail over local orders) and otherwise left resolution to a fact-specific review of the actual orders.

Common questions

Q: Could a Texas county require masks in its courthouse and other buildings?
A: Yes, the AG concluded. A commissioners court's power to maintain and reasonably regulate county buildings (Local Government Code section 291.001, plus the Dodson case) supported requiring face coverings in county-owned or controlled buildings during the disaster.

Q: Could a judge require masks in the courtroom or courthouse?
A: Yes. The AG cited a court's inherent power over its proceedings and reasonable attire, and separately a Texas Supreme Court emergency order requiring courts to follow Office of Court Administration guidance, which called for face coverings in the courthouse.

Q: How could officials enforce a mask requirement?
A: Under Executive Order GA-29, officials could issue a warning and then fine a second violation up to $250, and could remove or deny entry to people who refused, including through trespassing law. They could not detain, arrest, or jail anyone for a face-covering violation.

Q: If two officials in the same county issued conflicting orders, which controlled?
A: A statewide executive order like GA-29 prevailed over an order from a commissioners court or county judge. Where no executive order governed a building and multiple officials shared control of the space, the AG said they should coordinate, and any remaining conflict had to be resolved case by case after reviewing the specific orders and each official's authority.

Background and statutory framework

The request came from the Harris County Attorney during the COVID-19 disaster. The commissioners court's building authority rests on Texas Constitution article V, section 18(b) and Local Government Code section 291.001(3), construed by Dodson v. Marshall. A court's authority to control its courtroom rests on inherent power (State ex rel. Rosenthal v. Poe; Lantrip v. State) and Government Code section 21.001(a), supplemented during a disaster by the Texas Supreme Court's modify-or-suspend power in section 22.0035(b) and the emergency order adopting OCA guidance. A county judge's emergency power comes from Government Code section 418.108(a), (g), subject to the Governor's suspension of conflicting local restrictions in Executive Order GA-28. Enforcement and the conflicts priority came from Executive Order GA-29, with a footnote noting that conflicting orders could raise separation-of-powers questions under Texas Constitution article II, section 1.

Citations and references

Constitutional, statutory, and order provisions:

• Tex. Const. art. V, § 18 (commissioners court); art. II, § 1 (separation of powers)
• Tex. Gov't Code ch. 418 (emergency management); § 21.001; § 22.0035
• Tex. Loc. Gov't Code § 291.001 (county public buildings)
• Office of the Texas Governor, Executive Orders GA-28 (June 26, 2020) and GA-29 (July 2, 2020) (now rescinded)

Cases:

• Dodson v. Marshall, 118 S.W.2d 621 (Tex. App.-Waco 1938, writ dism'd)
• State ex rel. Rosenthal v. Poe, 98 S.W.3d 194 (Tex. Crim. App. 2003)
• Lantrip v. State, 336 S.W.3d 343 (Tex. App.-Texarkana 2011, no pet.)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/ken-paxton/kp-0322
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2020/kp-0322.pdf

Original opinion text

August 3, 2020

The Honorable Vince Ryan
Harris County Attorney
1019 Congress, 15th Floor
Houston, Texas 77002

Opinion No. KP-0322

Re: County authority to require facial coverings in courtrooms, courthouses, and county buildings (RQ-0356-KP)

Dear Mr. Ryan:

You request an opinion regarding facial covering mandates in courtrooms, courthouses, and other county buildings during the COVID-19 disaster.[1] As background, the Governor declared a state of disaster in Texas due to the spread of the communicable disease COVID-19 on March 13, 2020, and that disaster declaration continues today.[2] See TEX. GOV'T CODE § 418.014(a) (authorizing the Governor to declare a state of disaster). According to the Centers for Disease Control and Prevention ("CDC"), "COVID-19 spreads mainly from person to person through respiratory droplets produced when an infected person coughs, sneezes, talks, or raises their voice (e.g., while shouting, chanting, or singing)."[3] The CDC therefore "recommends that people wear cloth face coverings in public settings when around people outside of their household." CDC Guidance at 1.

Under a declared disaster, the Governor "may issue executive orders, proclamations, and regulations and amend or rescind them." TEX. GOV'T CODE § 418.012. The Governor's executive orders, proclamations, and regulations "have the force and effect of law." Id. Pursuant to that authority, the Governor has issued multiple executive orders, proclamations, and other statements, relating to the COVID-19 disaster declaration. Consistent with CDC Guidance, Executive Order GA-29 requires every person in Texas to "wear a face covering over the nose and mouth when inside a commercial entity or other building or space open to the public," with some exceptions.[4] Those exceptions include individuals in counties with minimal cases of COVID-19 whose county judge has opted out of the face covering requirement by following specific procedures. Exec. Order GA-29 at 2-3. Thus, while GA-29 currently requires the majority of individuals in Texas to wear facial coverings when entering a public building, including a courthouse or other county-owned building, it does not require all individuals entering such buildings across the State to wear a facial covering if a listed exception is met. Separate from GA-29, you ask about the independent authority of various local public officials to implement facial covering requirements in county courthouses, offices, and buildings. Request Letter at 1-2.

We first address the authority of a commissioners court to require any person entering a courthouse or other county-owned or controlled building in the county to wear a facial covering in those buildings during the COVID-19 disaster. Id. at 1. The commissioners court derives its authority from article V, section 18 of the Texas Constitution, which provides that the court "shall exercise such powers and jurisdiction over all county business, as is conferred by this Constitution and the laws of the State . . . ." TEX. CONST. art. V, § 18(b). Local Government Code section 291.001 prescribes the powers and duties of the commissioners court with regard to public buildings, which include maintaining a courthouse, offices, and other public buildings. TEX. LOC. GOV'T CODE § 291.001(3). Construing this authority, one Texas court concluded that a duty to provide a courthouse implicitly authorizes the commissioners court "to regulate the use thereof within reasonable bounds." Dodson v. Marshall, 118 S.W.2d 621, 623 (Tex. App.-Waco 1938, writ dism'd). Consistent with its authority to regulate use of its public buildings, a commissioners court may require any person entering a courthouse or other county-owned or controlled building to wear a facial covering in an effort to reduce the spread of COVID-19.

We next address the authority of a "court presiding over a courtroom in a county owned or controlled courthouse" to require any person who enters the courthouse to wear a facial covering while in the courthouse. Request Letter at 2. Among its inherent powers, a court possesses "broad discretion over the conduct of its proceedings" in the courtroom. State ex rel. Rosenthal v. Poe, 98 S.W.3d 194, 199 (Tex. Crim. App. 2003). "A court has all powers necessary for the exercise of its jurisdiction and the enforcement of its lawful orders, including authority to issue the writs and orders necessary or proper in aid of its jurisdiction." TEX. GOV'T CODE § 21.001(a); see Lantrip v. State, 336 S.W.3d 343, 351-52 (Tex. App.-Texarkana 2011, no pet.) (recognizing that a court's inherent power to control the courtroom includes reasonable attire restrictions).

Furthermore, during a disaster as declared by the Governor, the Texas Supreme Court "may modify or suspend procedures for the conduct of any court proceeding affected by a disaster." TEX. GOV'T CODE § 22.0035(b). Pursuant to this authority, the Court has issued multiple emergency orders, including an order requiring courts to comply with guidance issued by the Office of Court Administration ("OCA"):

Courts must not conduct in-person proceedings contrary to the Guidance for All Court Proceedings During COVID-19 Pandemic ("Guidance") issued by the Office of Court Administration, which may be updated from time to time, regarding social distancing, maximum group size, and other restrictions and precautions. Prior to holding any in-person proceedings, a court must submit an operating plan that is consistent with the requirements set forth in the Guidance. Courts must continue to use all reasonable efforts to conduct proceedings remotely.[5]

Under OCA Guidance, the local administrative judge for a county must submit an operating plan for all courts in the county to the regional presiding judge.[6] Among other requirements imposed by OCA, the operating plan advises that all individuals should wear cloth facial coverings while in the courthouse: "Cloth face coverings, at a minimum, should be required of individuals while in the courthouse." OCA Guidance at 4. Pursuant to this authority, courts may require any person entering the courthouse in which they preside to wear a facial covering while in the courthouse.

You also ask whether a county judge may require "any person entering a courthouse or other county-owned or controlled building in the county to wear a facial covering in those county buildings during the COVID-19 disaster." Request Letter at 1. Section 418.108 of the Government Code authorizes the presiding officer of the governing body of a political subdivision, which includes a county judge, to declare a local state of disaster. TEX. GOV'T CODE § 418.108(a). Upon the presiding officer's disaster declaration, chapter 418 vests the presiding officer with certain emergency powers, including authority to "control the movement of persons and the occupancy of premises in that area." Id. § 418.108(g).[7] Pursuant to this emergency authority, a county judge operating under a local disaster order may require a person to wear a facial covering when occupying a courthouse or other county-owned or controlled building.

To the extent public officials possess authority to require facial coverings in courtrooms, courthouses, and other county buildings during the COVID-19 disaster, you also ask how public officials may enforce a facial covering requirement. See Request Letter at 1-2. Executive Order GA-29 expressly authorizes local law enforcement and other local officials to enforce GA-29 and allows a fine not to exceed $250 for an individual's second violation of a facial covering requirement. Exec. Order GA-29 at 3. Under that order, local officials may not "detain, arrest, or confine in jail any person" for a violation of a facial covering requirement. Id. However, it also states that local officials may "enforce trespassing laws and remove violators at the request of a business establishment or other property owner." Id. Thus, local officials may impose a fine, consistent with Executive Order GA-29, and may remove or deny entry to individuals refusing to wear a facial covering inside those premises.

In your final question, you ask about conflicting orders issued by various local officials within the same county and which order would prevail. Request Letter at 2. To the extent GA-29 or a similar executive order requires facial coverings, that executive order will prevail over any order issued by a county commissioners court or county judge. If an executive order does not require facial coverings in a specific building, to the extent that multiple public officials operate in and possess control over county space simultaneously, they should coordinate with one another to establish rules for that space. See OCA Guidance at 1 (requiring the local administrative district judge to "attempt to confer with judges of all courts with courtrooms in county buildings, including . . . county judges"). Which official's order will prevail in any particular circumstance can only be determined after reviewing the specific orders at issue and the corresponding authority of the public officials to issue those orders.[8]

[1] See Letter from Honorable Vince Ryan, Harris Cty. Att'y, to Honorable Ken Paxton, Tex. Att'y Gen. at 1-2 (June 12, 2020) ("Request Letter").

[2] See OFFICE OF THE TEXAS GOVERNOR, DISASTER PROCLAMATION (Mar. 13, 2020). On July 10, 2020, the Governor renewed the disaster declaration.

[3] CENTERS FOR DISEASE CONTROL AND PREVENTION, ABOUT CLOTH FACE COVERINGS ("CDC Guidance").

[4] See OFFICE OF THE TEXAS GOVERNOR, EXEC. ORDER GA-29 at 2 (July 2, 2020). We note the Governor issued this order after you submitted your request.

[5] TEX. SUP. COURT, EIGHTEENTH EMERGENCY ORDER REGARDING THE COVID-19 STATE OF DISASTER, MISC. DOCKET NO. 20-9080 at 2, ¶ 4 (June 29, 2020).

[6] OFFICE OF COURT ADMIN., GUIDANCE FOR ALL COURT PROCEEDINGS DURING COVID-19 PANDEMIC at 1-4 (For Proceedings on or after June 1, 2020) ("OCA Guidance").

[7] Although section 418.108 grants county judges certain emergency powers, in Executive Order GA-28, the Governor suspended that statute "to the extent necessary to ensure that local officials do not impose restrictions in response to the COVID-19 disaster that are inconsistent" with that order. OFFICE OF THE TEXAS GOVERNOR, EXEC. ORDER GA-28 at 4 (June 26, 2020). While Executive Order GA-28 does not prohibit a county judge from requiring facial coverings before entry into county buildings, it limits the methods for enforcing such a requirement, discussed in more detail herein.

[8] Conflicting orders could raise separation of powers questions that would need to be decided on a case-by-case basis. See TEX. CONST. art. II, § 1.

S U M M A R Y

Local Government Code subsection 291.001(3) provides that the commissioners court shall maintain and regulate a county courthouse and other county offices and buildings. Pursuant to this authority, a commissioners court may require any person entering a courthouse or other county-owned or controlled building to wear a facial covering.

Judges possess broad inherent authority to control orderly proceedings in their courtrooms, and pursuant to that authority they could require individuals in the courtroom to wear facial coverings if necessary to maintain order and safety. In addition, the Texas Supreme Court has issued an emergency order requiring all judges to comply with guidance promulgated by the Office of Court Administration, which requires facial coverings by all individuals while in the courthouse. Thus, courts may require any person entering the courthouse in which they preside to wear a facial covering while in the courthouse.

Government Code section 418.108 authorizes a county judge to declare a local state of disaster and upon such declaration, vests the county judge with authority to control the occupancy of premises in the disaster area. Pursuant to this emergency authority, a county judge operating under a local disaster order could require a person to wear a facial covering when occupying a courthouse or other county-owned or controlled building.

Executive Order GA-29 allows local law enforcement and local officials to impose a fine not to exceed $250 for an individual's second violation of a mask requirement. In addition, public officials may require facial coverings for those entering the courthouse or other county buildings and may deny entry to those individuals refusing to wear a facial covering inside those premises.

Very truly yours,

KEN PAXTON
Attorney General of Texas

JEFFREY C. MATEER
First Assistant Attorney General

RYAN L. BANGERT
Deputy First Assistant Attorney General

RYAN M. VASSAR
Deputy Attorney General for Legal Counsel

VIRGINIA K. HOELSCHER
Chair, Opinion Committee