On March 2, 2021, Governor Abbott signed Executive Order GA-34 (the “Order”), providing that the COVID-19 restrictions put in place by past executive orders would be lifted effective March 10, 2021. The COVID-19 restrictions lifted by the Order include but are not limited to the statewide mask mandate, social distancing requirements, limitations on gathering sizes, and building capacity limits.

As discussed below, the Order does not affect a property owner’s association, private business or other entity’s ability to adopt its own safety protocols.

Can counties adopt their own regulations?

The Order only allows county judges to enact their own county-wide COVID-19 restrictions if the county in question is located in an “area with high hospitalizations.”[1]  For any such county, the county judge’s ability to limit the capacity of businesses and other establishments is restricted to capacity limits of 50% or higher. Further, counties may not impose penalties of any kind for violation of a county-level mask mandate.

The Order does not grant county judges of counties not located in an area with high hospitalizations with the authority to adopt any local-level COVID-19 restrictions.

As of the publication of this update, the only counties falling within an area of high hospitalizations are Culberson, El Paso, and Hudspeth Counties.

What does this mean for POAs?

CDC guidance continues to stress the importance of masks and social distancing. In fact, the Order itself states that individuals are “strongly encouraged” to continue wearing masks and practicing social distancing. Therefore, Governor Abbott’s decision to lift statewide restrictions does not mean that everyone can throw caution to the wind. However, because no statewide COVID-19 precautions will be in place as of March 10, 2021, and because most POAs are located in counties where the county judge will not have the authority to adopt local-level restrictions, POAs cannot rely on the state or local government to enforce these safety measures. Instead, POAs must determine whether they wish to adopt their own COVID-19 rules and regulations, such as rules requiring masks and social distancing, and setting capacity limits on amenities.

Paragraph 4 of the Order specifically states that the Order does not prevent businesses and other establishments from requiring COVID-19 safety measures, including mask requirements. Any POA wishing to enact such rules will need to ensure that the rules are adopted in compliance with the Texas Property Code and the POA’s governing documents. Condominium association boards may be able to rely on the general rule-making authority found in Section 82.102(a)(7) of the Texas Property Code (which applies to both pre- and post-1994 condominiums), while single-family associations will need to consult their governing documents to determine whether the board has rule-making authority, or if rules must go to the membership for a vote. Once adopted, the rules must be filed in the real property records of the county in which the POA sits to be enforceable.

Any POA with questions about their rule-making authority or which rules would align with CDC guidance are encouraged to speak with the POA’s attorney.

IMPORTANT NOTE: POAs with their own employees may have certain obligations under the Occupational Safety and Health Act (“OSHA”). RMWBH’s update for employers can be found here.

[1] This is defined as “any Trauma Service Area that has had seven consecutive days in which the number of COVID-19 hospitalized patients as a percentage of the total hospital capacity exceeds 15%, until such time as the Trauma Service Area has seven consecutive days in which the number of COVID-19 hospitalized patients as a percentage of the total hospital capacity is 15% or less.”