On June 26, 2020, Texas Governor Greg Abbott issued Executive Order No. GA-28, immediately scaling back the reopening of Texas due to substantial increases in the number of people testing positive for COVID-19 and the number of hospitalizations. The executive order cites a warning that the Commissioner of the Texas Department of State Health Services (DSHS) issued stating that “COVID-19 continues to represent a public health disaster.”

Under the executive order, all bars and similar establishments receiving more than 51 percent of their gross receipts from the sale of alcoholic beverages, as well as commercial rafting and tubing businesses, were required to close at noon on June 26, 2020. However, bars may remain open for delivery and takeout, including for the sale of alcoholic beverages.

The executive order permits restaurants offering dine-in services to continue to operate at an occupancy limitation of up to 75 percent until 12:01 a.m. on June 29, 2020. Thereafter, occupancy must be reduced to 50 percent, except for restaurants operating in “a county that has filed with DSHS, and is in compliance with, the requisite attestation form promulgated by DSHS regarding minimal cases of COVID-19.” As with past orders, “[s]taff members are not included in determining operating levels” for restaurants.

Most all other businesses in Texas are now limited to a 50 percent occupancy restriction, except for those operating in counties with minimal cases of COVID-19 where the restriction is 75 percent of total occupancy. The 50 percent occupancy limitation also does not apply to certain establishments where at least 6 feet of social distancing between workstations can be maintained, including hair salons, barber shops, nail salons, massage establishments, and other businesses providing personal care and beauty services.

Under the executive order, “there is no occupancy limit for the following:

1. any services listed by the U.S. Department of Homeland Security’s Cybersecurity and Infrastructure Security Agency (CISA) in its Guidance on the Essential Critical Infrastructure Workforce, Version 3.1 or any subsequent version;

2. religious services, including those conducted in churches, congregations, and houses of worship;

3. local government operations, including county and municipal governmental operations relating to licensing (including marriage licenses), permitting, recordation, and document-filing services, as determined by the local government;

4. child-care services;

5. youth camps, including but not limited to those defined as such under Chapter 141 of the Texas Health and Safety Code, and including all summer camps and other daytime and overnight camps for youth; and

6. recreational sports programs for youths and adults.”

Outdoor gatherings of 100 or more people generally are no longer permitted unless approved by local governments. Under the executive order, “[the] 50 percent occupancy limit does not apply to outdoor areas, events, or establishments, except that the following outdoor areas or outdoor venues [may] operate at no more than 50 percent of the normal operating limits as determined by the owner:

1. professional, collegiate, or similar sporting events;

2. swimming pools;

3. water parks;

4. museums and libraries;

5. zoos, aquariums, natural caverns, and similar facilities; and

6. rodeos and equestrian events.”

Executive Order GA-28 came on the heels of Executive Order GA-27, issued on June 25, 2020, wherein Governor Abbott suspended all elective surgeries and procedures at hospitals in the most populated areas of Texas, including Bexar, Dallas, Harris, and Travis counties, to ensure sufficient hospital capacity for COVID-19 patients. The prohibition does not apply to elective surgeries or procedures that “would not deplete any hospital capacity needed to cope with the COVID-19 disaster.” Executive Order GA-27 will become effective at 11:59 p.m. on June 26, 2020.