Did Texas Executive Order GA-38 give people the right to refuse a local mask mandate?

Plain-English summary

In September 2021, during the COVID-19 disaster declaration, the Williamson County Attorney asked the AG whether Governor Abbott's Executive Order GA-38 created a right, privilege, power, or immunity regarding Texans' ability to not wear a face covering. The AG split the analysis into the order's text and the rights flowing from it.

On the text, the AG explained that the Governor declared a COVID-19 disaster in March 2020 and that, under Government Code § 418.012, a disaster executive order has "the force and effect of law." GA-38, issued July 29, 2021, said no 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 mandate that another person wear one, subject to two carve-outs: state supported living centers and government-owned or government-operated hospitals could keep appropriate policies, and the Texas Department of Criminal Justice, the Texas Juvenile Justice Department, and county and municipal jails acting consistent with Jail Standards guidance could do the same. Imposing a face-covering requirement was a "failure to comply" subject to a fine up to $1,000, and GA-38 superseded conflicting local requirements except as carved out.

Critically, the AG noted that GA-38's validity was being contested in multiple pending state and federal lawsuits, including In re Abbott. Because it is this office's longstanding policy not to opine on a question known to be in litigation, the AG assumed without deciding that GA-38 was valid and enforceable and answered only the rights that flow from it, relying on the presumption that administrative orders are valid until proven otherwise (Vandygriff v. First Sav. & Loan Ass'n of Borger) and that enactments carry a presumption of validity (Hegar v. Tex. Small Tobacco Coal.). The AG emphasized the courts would ultimately decide which officials have authority to impose or prohibit face-covering requirements, quoting the Texas Supreme Court's observation in In re Abbott that the cases are about which officials decide, not whether people should wear masks.

On the rights question, the AG observed that executive orders can create rights and immunities in other contexts (Old Dominion Branch No. 496, Nat'l Ass'n of Letter Carriers, AFL-CIO v. Austin, a U.S. Supreme Court case). The county attorney framed the question around Penal Code § 39.03(a)(2), which makes it an offense for a public servant acting under color of office or employment to intentionally deny or impede another in the exercise of any right, privilege, power, or immunity, knowing the conduct is unlawful. The AG said it could not decide whether any particular conduct is a crime, because that turns on facts outside the opinion process (KP-0138), but it could give legal guidance on the statute (GA-0633). Because § 39.03 does not define "immunity," the AG applied the word's ordinary legal meaning (Jaster v. Comet II Constr., Inc.; Webster's): freedom or exemption from a charge, duty, obligation, penalty, or the like. Reasoning that GA-38 freed Texans from any charge or penalty for refusing to comply with a local mask mandate the order made unlawful, the AG concluded a court would likely find GA-38 created an immunity to be free from enforcement of local mask mandates in most settings, and that a court could find, under certain facts, that an official who intentionally denied that immunity by enforcing an unlawful mandate violated § 39.03.

A currency note: GA-38 was an emergency order under the COVID-19 disaster declaration, which has since ended, so the order is no longer in effect. The AG also flagged that any rights under GA-38 were always subject to modification or revocation by later orders. Treat this page as a record of what KP-0386 said in 2021, not as a statement of current law.

What this means for you

This describes what the opinion said in 2021. GA-38 and the underlying disaster declaration have since ended, so this is historical context, not current legal advice.

Local governments and officials

The opinion read GA-38 to bar counties, cities, school districts, and public health authorities from imposing face-covering mandates, with narrow exceptions, and to make a local mandate a violation subject to a fine. The AG did not decide GA-38's validity, which was being litigated; it presumed validity to answer the rights question.

Texas residents

The opinion concluded a court would likely find GA-38 gave individuals immunity from enforcement of local mask mandates in most settings while the order was in force. That conclusion rested on the order's text and was always subject to the order being modified or revoked, which has since happened as the disaster declaration ended.

Public servants weighing enforcement

The opinion said it could not decide whether any specific conduct was a crime, but that under certain facts a court could find an official who knowingly enforced an unlawful mask mandate, denying the immunity, violated Penal Code § 39.03. Whether the statute's elements are met is fact-specific.

Common questions

Q: What did Executive Order GA-38 do?
A: Per the opinion, GA-38 barred governmental entities and officials from requiring face coverings (with limited exceptions for certain hospitals, living centers, and corrections facilities) and made a local mandate a "failure to comply" subject to a fine up to $1,000.

Q: Did the AG decide GA-38 was legal?
A: No. The AG noted GA-38's validity was in pending litigation and, following office policy not to opine on questions in litigation, assumed without deciding it was valid and answered only what rights flowed from it.

Q: Did GA-38 give people a right not to wear a mask?
A: The AG concluded a court would likely find GA-38 created an immunity, freedom from a charge or penalty, to be free from enforcement of local mask mandates in most settings, presuming the order was valid.

Q: Could an official be prosecuted for enforcing a mask mandate?
A: The AG said it could not decide that, because criminal liability depends on facts. But it concluded a court could find, under certain facts, that an official who knowingly enforced an unlawful mandate violated Penal Code § 39.03.

Q: Is GA-38 still in effect?
A: No. GA-38 was an emergency order under the COVID-19 disaster declaration, which has ended. This page reflects the AG's 2021 analysis, not current law.

Background and statutory framework

Government Code § 418.012 lets the Governor, upon declaring a disaster, issue executive orders that have the force and effect of law. The Governor declared a COVID-19 disaster in March 2020 and issued GA-38 on July 29, 2021. GA-38 prohibited governmental entities and officials from requiring face coverings, carved out certain government hospitals and living centers and certain corrections facilities, made violations subject to a fine up to $1,000, and superseded conflicting local requirements.

Because GA-38's validity was being litigated (In re Abbott), the AG invoked its policy against opining on questions in litigation and assumed the order's validity, citing the presumption of validity for administrative orders (Vandygriff v. First Sav. & Loan Ass'n of Borger) and enactments (Hegar v. Tex. Small Tobacco Coal.). On the rights question, the AG cited Old Dominion Branch No. 496, Nat'l Ass'n of Letter Carriers, AFL-CIO v. Austin (a U.S. Supreme Court decision) for the proposition that executive orders can create rights and immunities. It framed the analysis around Penal Code § 39.03(a)(2) (official oppression) and read the undefined term "immunity" by its ordinary meaning (Jaster v. Comet II Constr., Inc.). It declined to decide whether any specific conduct was a crime (KP-0138) while providing statutory guidance (GA-0633).

Citations and references

Statutes:

• Tex. Gov't Code § 418.012 (disaster executive orders have the force and effect of law)
• Tex. Penal Code § 39.03 (official oppression)

Key cases:

• Old Dominion Branch No. 496, Nat'l Ass'n of Letter Carriers, AFL-CIO v. Austin, 418 U.S. 264 (1974) (U.S. Supreme Court; executive orders may create rights protected against inconsistent state laws)
• In re Abbott, No. 21-0720 (Tex. 2021) (Texas Supreme Court; mask-mandate cases concern which officials have authority to decide)
• Vandygriff v. First Sav. & Loan Ass'n of Borger, 617 S.W.2d 669 (Tex. 1981) (administrative orders presumed valid until proven otherwise)
• Jaster v. Comet II Constr., Inc., 438 S.W.3d 556 (Tex. 2014) (undefined statutory terms get their ordinary meaning)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/ken-paxton/kp-0386
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2021/kp-0386.pdf

Original opinion text

September 17, 2021

The Honorable Dee Hobbs
Williamson County Attorney
405 M.L.K. Street #7
Georgetown, Texas 78726

Opinion No. KP-0386

Re: Whether Executive Order GA-38 creates a right, privilege, power, or immunity with regard to Texans' ability to not wear a face covering (RQ-0429-KP)

Dear Mr. Hobbs:

You ask whether Executive Order GA-38 creates a right, privilege, power, or immunity with regard to Texans' ability to not wear a face covering.¹

I. Executive Order GA-38 prohibits a governmental entity, including a county, city, school district, or public health authority, from requiring any person to wear a face covering or to mandate that another person wear a face covering.

The Governor declared a state of disaster in Texas due to COVID-19 on March 13, 2020, and that declaration is ongoing.² The Legislature authorized the Governor, upon declaring a disaster, to "issue executive orders, proclamations, and regulations and amend or rescind them." TEX. GOV'T CODE § 418.012. The Governor's executive orders issued pursuant to his emergency powers under chapter 418 of the Government Code "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.

¹ See Letter from Honorable Dee Hobbs, Williamson Cnty. Att'y, to Honorable Ken Paxton, Tex. Att'y Gen. at 1 (Sept. 2, 2021), https://www2.texasattorneygeneral.gov/opinions/opinions/51paxton/rq/2021/pdf/RQ0429KP.pdf.

² Office of the Governor, Proclamation 41-3730, 45 Tex. Reg. 2094 (2020).

On July 29, 2021, the Governor issued Executive Order GA-38.³ GA-38 provides, in relevant part:

No 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; provided, however, that:

i. state supported living centers, government-owned hospitals, and government-operated hospitals may continue to use appropriate policies regarding the wearing of face coverings; and

ii. the Texas Department of Criminal Justice, the Texas Juvenile Justice Department, and any county and municipal jails acting consistent with guidance by the Texas Commission on Jail Standards may continue to use appropriate policies regarding the wearing of face coverings.

Exec. Order GA-38 at 4 (emphasis in original). Executive Order GA-38 further provides that "the imposition of any such face-covering requirement by a local governmental entity or official constitutes a 'failure to comply with' this executive order that is subject to a fine up to $1,000." Id. Executive Order GA-38 "supersede[s] any face-covering requirement imposed by any local governmental entity or official except as explicitly provided" under paragraphs (i) and (ii). Id.

Multiple lawsuits are currently pending in Texas state and federal courts that address the validity of Executive Order GA-38 and its prohibiting governmental entities from imposing a mask requirement. See, e.g., In re Abbott, No. 21-0720 (Tex. filed Aug. 23, 2021). It is the policy of this office to refrain from issuing an Attorney General opinion on a question that we know to be the subject of pending litigation. See Tex. Att'y Gen. Op. Nos. KP-0382 (2021) at 2, GA-0502 (2007) at 3–4, MW-205 (1980) at 1, V-291 (1947) at 5–6. We therefore assume without deciding the validity and enforceability of Executive Order GA-38 and answer your question concerning the rights that flow from that order, presuming its validity. See Hegar v. Tex. Small Tobacco Coal., 496 S.W.3d 778, 785 (Tex. 2016) (explaining statutes are entitled to a presumption of constitutionality); Vandygriff v. Frist Sav. & Loan Ass'n of Borger, 617 S.W.2d 669, 673 (Tex. 1981) (explaining administrative orders are entitled to a presumption of validity until proven otherwise). The courts will ultimately decide the question of which government officials have the legal authority to impose or prohibit the imposition of requirements related to face coverings.⁴

³ See GOVERNOR OF THE STATE OF TEXAS, EXECUTIVE ORDER 38 (July 29, 2021), https://gov.texas.gov/uploads/files/press/EO-GA-38_continued_response_to_the_COVID-19_disaster_IMAGE_07-29-2021.pdf.

II. Executive Order GA-38 creates immunity for Texans to be free from enforcement of local governmental mandates that require face coverings in most settings.

Given the executive order's prohibition on most local governmental face covering mandates, you ask whether it creates a right, privilege, power, or immunity with regard to Texans' ability to not wear a face covering.⁵ Request Letter at 1. In other contexts, courts have recognized the ability of executive orders to create rights and immunities. See Old Dominion Branch No. 496, Nat'l Ass'n of Letter Carriers, AFL-CIO v. Austin, 418 U.S. 264, 273 n.5 (1974) ("concluding that the Executive Order is valid and may create rights protected against inconsistent state laws"). We therefore consider whether Executive Order GA-38 does so here.

You frame your question in the context of section 39.03 of the Penal Code, which makes it an offense for a "public servant acting under color of his office or employment" to intentionally deny or impede "another in the exercise or enjoyment of any right, privilege, power, or immunity, knowing his conduct is unlawful." TEX. PENAL CODE § 39.03(a)(2). Whether the elements of a specific criminal offense are met in a particular case depends on factual determinations, which are beyond the scope of the opinion process. See Tex. Att'y Gen. Op. No. KP-0138 (2017) at 3 ("[T]his office does not determine as a matter of law whether particular actions constitute a criminal offense[.]"). We can, however, provide legal guidance as to the interpretation of the statute at issue. See Tex. Att'y Gen. Op. No. GA-0633 (2008) at 2 (declining to opine on whether entities violate state law but providing guidance as to the meaning of the statutes at issue).

Section 39.03 of the Penal Code does not define the term "immunity." When a statute uses a word that it does not define, courts determine and apply the word's common, ordinary meaning, looking to a wide variety of sources, including dictionary definitions. Jaster v. Comet II Constr., Inc., 438 S.W.3d 556, 563 (Tex. 2014). The common understanding of the term "immunity" in a legal context is "freedom or exemption from a charge, duty, obligation, office, tax, imposition, penalty, or service." WEBSTER'S THIRD NEW INT'L DICTIONARY 1130 (2002).

Executive Order GA-38 makes it unlawful for a governmental official to require any person to wear a face covering or to mandate that another person wear a face covering, with limited exceptions. Exec. Order GA-38 at 4. It thereby protects Texans facing enforcement of a face covering mandate, freeing them from any charge, imposition, or penalty for refusing to comply with a face covering mandate that is unlawful under the order. A court is therefore likely to conclude that Executive Order GA-38 creates immunity for Texans to be free from enforcement of local governmental mandates that require face coverings. Furthermore, a court could find under certain facts that a governmental official intentionally denying that immunity to an individual by enforcing an unlawful face covering mandate is in violation of section 39.03 of the Penal Code.

⁴ As the Texas Supreme Court recently recognized, these cases "are not about whether people should wear masks or whether the government should make them do it. Rather, these cases ask courts to determine which government officials have the legal authority to decide what the government's position on such questions will be." In re Abbott, No. 21-0720, (Tex. Aug. 26, 2021) (order granting relator's emergency motion for temporary relief).

⁵ By its terms, Executive Order GA-38 remains "in effect and in full force unless it is modified, amended, rescinded, or superseded by the governor." Exec. Order GA-38 at 5. Any rights established pursuant to GA-38 are likewise subject to modification and revocation by subsequent executive orders or proclamations.

S U M M A R Y

Executive Order GA-38 generally prohibits a governmental entity, including a county, city, school district, or public health authority, from requiring any person to wear a face covering or to mandate that another person wear a face covering.

Section 39.03 of the Penal Code makes it an offense for a "public servant acting under color of his office or employment" to intentionally deny or impede "another in the exercise or enjoyment of any right, privilege, power, or immunity, knowing his conduct is unlawful."

Executive Order GA-38 creates immunity for Texans to be free from enforcement of most local governmental mandates that require face coverings. A court could find under certain facts that a governmental official intentionally denying that immunity to an individual by enforcing an unlawful face covering mandate is in violation of section 39.03 of the Penal Code.

Very truly yours,

KEN PAXTON
Attorney General of Texas

BRENT E. WEBSTER
First Assistant Attorney General

LESLEY FRENCH
Chief of Staff

MURTAZA F. SUTARWALLA
Deputy Attorney General for Legal Counsel

JOSHUA RENO
Deputy Attorney General for Criminal Justice

VIRGINIA K. HOELSCHER
Chair, Opinion Committee