Can a Texas transit authority require masks and refuse service to riders who won't wear one?

Plain-English summary

In the summer of 2020, with the COVID-19 disaster declaration in force, a state representative, Jim Murphy, asked the Attorney General whether the Metropolitan Transit Authority of Harris County (METRO), the bus, rail, and paratransit system serving the Houston region, could refuse service to and bar a rider who would not follow a rule requiring face coverings for everyone medically able to wear one.

The AG said it could. Transportation Code chapter 451 creates metropolitan rapid transit authorities and gives each authority's board control over the system. Subsection 451.107(a) lets that board adopt rules for "the safe and efficient operation and maintenance of the transit authority system." Reading that grant against the public-health backdrop (the Governor's disaster declaration and CDC guidance recommending face coverings on public transportation), the AG concluded that if a face-covering requirement was necessary for the safe and efficient operation of the system during the pandemic, METRO could require any person medically capable of doing so to wear one when entering its vehicles or facilities.

The AG then noted that the legal landscape had shifted while the request was pending. After the representative submitted his question, the Governor issued Executive Order GA-29, which required most people in Texas to wear a face covering inside spaces open to the public, including transit vehicles and facilities, subject to exceptions (such as counties with few cases whose county judge had opted out). GA-29 authorized local officials to enforce the requirement: a warning for a first violation, then a fine of up to $250, but no arrest or jail. The order also let officials and property owners enforce trespassing laws and remove violators. Tying those threads together with the criminal-trespass statute, the AG concluded that METRO could refuse service to, or have removed, riders who refused to comply with a face-covering rule.

Currency note

This opinion was issued in 2020, during the COVID-19 disaster, and it rests on Executive Order GA-29 and a disaster declaration that have since been rescinded. 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 answered an operational-authority question for a transit agency during the pandemic. For METRO and other metropolitan transit authorities, the reading at the time was that the board's existing rulemaking power over "safe and efficient operation" was broad enough to support a face-covering rule, and that a rider who refused could be denied service or removed. For local officials, the opinion described how Executive Order GA-29 channeled enforcement: warnings and capped fines, no arrests, plus the trespass route for removing violators at a property owner's request. The AG tied the conclusion to the statutory operation-and-maintenance grant and to the then-effective executive order, and framed the face-covering rule as permissible "if" it was necessary for safe and efficient operation, leaving that factual necessity to the authority.

Common questions

Q: Could a Texas transit authority require riders to wear masks?
A: Yes, in the AG's view, if doing so was necessary for the safe and efficient operation of the system. Transportation Code subsection 451.107(a) lets a metropolitan transit authority's board adopt operation-and-maintenance rules, and the AG read that to cover a face-covering requirement during the COVID-19 pandemic for anyone medically capable of wearing one.

Q: Could METRO refuse service to someone who wouldn't wear a mask?
A: Yes. The AG concluded METRO could refuse service to, or have removed, a rider who refused to comply with a face-covering rule, relying on Executive Order GA-29's enforcement provisions and the criminal-trespass statute, which let property owners and officials remove violators.

Q: What happened to someone who violated the requirement?
A: Under Executive Order GA-29, a first violation drew a verbal or written warning, and later violations could bring a fine of up to $250. The order barred arresting, detaining, or jailing anyone for a face-covering violation, but allowed fines and removal under trespassing law.

Q: Did everyone in Texas have to wear a mask at that time?
A: Not everyone. GA-29 required most people to wear face coverings in spaces open to the public, but it carved out exceptions, including individuals in counties with minimal COVID-19 cases whose county judge had opted out by following the order's procedures.

Background and statutory framework

The request came from the chair of the House Committee on Pensions, Investments & Financial Services and concerned METRO, created under Transportation Code chapter 451. The statute vests control of the authority in its board (§ 451.053), and subsection 451.107(a)(1) authorizes board rules for the safe and efficient operation and maintenance of the system, the provision the AG read to support a face-covering rule. The public-health context came from the Governor's March 13, 2020 disaster declaration under Government Code section 418.014(a) and CDC guidance on respiratory transmission and face coverings on public transportation. While the request was pending, the Governor issued Executive Order GA-29 under section 418.012 (which gives executive orders the force of law), imposing a statewide face-covering requirement with exceptions and an enforcement scheme of warnings and capped fines. The removal-and-refusal conclusion drew on GA-29's authorization to enforce trespassing laws and on Penal Code section 30.05, the criminal-trespass statute.

Citations and references

Statutory provisions and orders:

• Tex. Transp. Code ch. 451 (metropolitan rapid transit authorities; board powers and rulemaking)
• Tex. Gov't Code ch. 418 (emergency management; Governor's disaster and executive-order powers)
• Tex. Penal Code § 30.05 (criminal trespass)
• Office of the Texas Governor, Executive Order GA-29 (July 2, 2020) (statewide face-covering requirement; now rescinded)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/ken-paxton/kp-0323
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2020/kp-0323.pdf

Original opinion text

August 3, 2020

The Honorable Jim Murphy
Chair, House Committee on Pensions, Investments & Financial Services
Texas House of Representatives
Post Office Box 2910
Austin, Texas 78768-2910

Opinion No. KP-0323

Re: Authority of the Metropolitan Transit Authority of Harris County to prohibit service and access to its transit authority system to a person who refuses to comply with a rule requiring facial coverings (RQ-0360-KP)

Dear Representative Murphy:

You ask whether the Metropolitan Transit Authority of Harris County ("METRO") may refuse service and prohibit access to a person "who refuses to comply with a METRO rule requiring all persons (who are medically capable of doing so) to wear face coverings on METRO vehicles, facilities or properties."[1] As background, you explain that "METRO is the metropolitan rapid transit authority serving the Houston region, including 14 smaller cities and major portions of unincorporated Harris County, with bus, rail, and paratransit transportation services." Request Letter at 1. Through chapter 451 of the Transportation Code, the Legislature authorized the creation of metropolitan rapid transit authorities and granted control, management, and operation of those authorities to the board of each authority. See TEX. TRANSP. CODE § 451.053.

Your question arises amidst the COVID-19 pandemic. 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. With regard to public transportation in particular, the CDC recommends "wearing a cloth face covering when physical distancing is difficult," with exceptions for young children, those individuals who have trouble breathing, and anyone incapacitated or otherwise unable to remove the cloth face covering without assistance.[4]

Subsection 451.107(a) of the Transportation Code authorizes the board of a metropolitan transit authority to adopt rules for "the safe and efficient operation and maintenance of the transit authority system." TEX. TRANSP. CODE § 451.107(a)(1). Consistent with this authority, if wearing a facial covering in a transit authority vehicle or facility is necessary for the safe and efficient operation of the transit authority system during the COVID-19 pandemic, METRO may require any person medically capable of doing so to wear a facial covering when entering its vehicles or facilities.

After you submitted your request, the Governor issued Executive Order GA-29, which requires every person in Texas to "wear a face covering over the nose and mouth when inside a . . . building or space open to the public," with some exceptions.[5] See TEX. GOV'T CODE § 418.012 (authorizing the Governor to "issue executive orders, proclamations, and regulations," which "have the force and effect of law"). 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 inside a space open to the public, including public transportation vehicles or facilities, it does not require all individuals entering such spaces across the State to wear a facial covering if a listed exception is met.

Executive Order GA-29 expressly authorizes local law enforcement and other local officials to enforce the order's facial covering requirement and "other effective executive orders, as well as local restrictions that are consistent with this executive order and other effective executive orders." Exec. Order GA-29 at 3. Following a verbal or written warning for first time violations, GA-29 authorizes a fine not to exceed $250 for each subsequent violation. Exec. Order GA-29 at 3. Under GA-29, law enforcement and other officials may not "detain, arrest, or confine in jail any person" for a violation of the facial covering requirement. Id. However, the order also states that law enforcement and local officials may impose a permissible fine and "enforce trespassing laws and remove violators at the request of a business establishment or other property owner." Id.; see TEX. PENAL CODE § 30.05 ("Criminal Trespass"). Thus, METRO may refuse service to or have removed individuals who refuse to comply with a rule that requires facial coverings.

[1] Letter from Honorable Jim Murphy, Chair, House Comm. on Pensions, Invs., & Fin. Servs., to Honorable Ken Paxton, Tex. Att'y Gen. at 1 (June 26, 2020) ("Request Letter").

[2] See OFFICE OF THE TEXAS GOVERNOR, DISASTER PROCLAMATION (Mar. 13, 2020). The Governor has renewed the disaster declaration multiple times, including most recently on July 10, 2020.

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

[4] CENTERS FOR DISEASE CONTROL AND PREVENTION, PROTECT YOURSELF WHEN USING TRANSPORTATION.

[5] See OFFICE OF THE TEXAS GOVERNOR, EXEC. ORDER GA-29 at 2 (July 2, 2020) ("Exec. Order GA-29").

S U M M A R Y

Subsection 451.107(a) of the Transportation Code authorizes the board of a metropolitan transit authority to adopt rules for the safe and efficient operation and maintenance of the transit authority system. If wearing a facial covering in a transit authority vehicle or facility is necessary for the safe and efficient operation of the Metropolitan Transit Authority of Harris County during the COVID-19 pandemic, the Authority may require any person medically capable of doing so to wear a facial covering when entering its vehicles or facilities. Furthermore, it may refuse service to or have removed individuals who refuse to comply with a rule that requires facial coverings.

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