Legal Update Re: AG Opinion on Local Health Authority Orders Shutting Down In-Person Instruction

Today, Texas Attorney General Ken Paxton issued a letter advising school districts that local health authorities do not have the authority to issue blanket closure orders to schools within their jurisdictions on a purely prophylactic basis and that any such orders are superseded by Governor Abbott’s executive order GA-028, which permits schools to reopen.  The letter was issued in response to a request for legal guidance from the Mayor of Stephenville under section 418.193 of the Texas Government Code, which permits the Attorney General to provide “legal counsel to a political subdivision subject to a declared state of disaster under section 418.014 on issues related to disaster mitigation, preparedness, response, and recovery applicable to the area subject to the disaster declaration.” 

Contrary to the Attorney General’s letter, a recent letter to members of the Texas Legislature on July 17, 2020, signed by Governor Abbott, Lieutenant Governor Dan Patrick, Speaker Dennis Bonnen, Senator Larry Taylor, and Representative Dan Huberty, stated that “[l]ocal health authorities have the ability, subject to oversight of the Texas Department of State Health Services, to order the closure of public schools for public health reasons, whether for COVID-19, influenza, or other infections diseases.”  The letter also stated that “[i]n the event public schools are closed to on-campus instruction under a local health order, the school will be funded for those days as long as they are providing quality virtual instruction for all students.”Additionally, the Texas Education Agency has indicated that it will continue to fund public school districts during mandatory closures pursuant to orders of local health authorities. 

Our office is reviewing the Attorney General’s guidance; however, it is important to note that the Attorney General’s guidance is a legal opinion that is non-binding.As none of the local health authority orders currently in place have been challenged and overturned in a court of law, our firm recommends that school districts under local health authority orders seek legal counsel regarding whether they should continue to give those orders full effect in planning for the upcoming school year.