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  • Brian Foley

Are you required to wear a Mask in Texas?

Is there really a mask requirement in Texas? What does Executive Order GA 29 really say? And can it be enforced?

On July 2, 2020 Governor Abbot issued an executive order under his disaster declaration powers of Section 418.014 of the Texas Government Code requiring: "[e]very person in Texas [to] wear a face covering over the nose and mouth . . . " Of course the governor's order has limitations and it is not a requirement to wear a mask at all times in all places. First and most notably the mask mandate does not apply to children under the age of 10. It doesn't apply to them a little bit, or in certain areas, or AT ALL. There is absolutely no requirement imposed by the governors order on children under the age of 10.

It only applies to someone over 10 when they are inside a commercial entity or other building or space open to the public or if you are outdoors if it is not feasible to maintain six feet of social distancing.

Other exemptions to the face covering requirement include:

  1. medical condition or disability that prevents wearing a face covering;

  2. eating or drinking or seated at a restaurant to eat or drink;

  3. exercising outdoors if maintaining a "safe distance" (not necessarily 6 feet);

  4. people driving alone;

  5. if you need to take it off for security purposes like entering a bank that wants to identify you;

  6. swimming;

  7. voting;

  8. religious services; and

  9. giving a speech to an audience or for broadcast.

I think my favorite exception is the one about giving a speech. I call this the politician exception which for no particular reason exempts any politician from having to cover their face as long as they are getting media attention.

So is any of this legal or enforceable? Well the Executive order provides for enforcement in the following manner.

  1. a verbal or written warning for a first-time violator.

  2. $250 fine for second time violators; and

  3. $250 fine for each violation afterwards.

  4. You may not be detained, arrested, or confined in jail.

  5. It does say you can get arrested for criminal trespass if a business requests it and you refuse to leave. (This would have been true before the order anyway)

So who is charged with enforcement? "Local Law Enforcement officials" are the ones who get the responsibility. How feasible is it to create and impose a system of fine only offenses that require proof of a written or oral warning before the imposition of a $250 fine for which the officer cannot detain you in order to assess it?

I would say from a criminal law perspective the governors order is written in a way that is not enforceable and has so many defenses built in that it is entirely ineffective for its purpose. Montgomery County Judge Mark Keough made a statement on the order saying that, "We have a law enforcement agencies which exercises tremendous discretion and they will in this case." Montgomery County Sheriff Rand Henderson released a statement saying that his deputies "Are not authorized to issue citations for a violation of this order." So in Montgomery County is it enforceable? I'd have to say no.

So what does it mean and what should you do?

If a private business has a requirement of wearing a mask then that means you can be required to wear a mask by that business or face criminal trespass charges for refusal to leave the business. You can think of this as similar to a no shoes no shirt no service requirement. The sheriff's office is still enforcing criminal trespass laws at the request of business owners and it makes sense to respect the request of business owners yourself.

Of course not everyone agrees that the wearing of face coverings is effective or beneficial and everyone is free to choose where they go to shop. Local businesses will have to weigh these factors as pressure from the public mounts and covid fatigue increases.

Doesn't this violate my constitutional rights? Related to private businesses - No.

Since the inception of the constitution it has been held that only government entities are capable of violating constitutional freedoms. The Bill of rights first applied only to the Federal government and then gradually under the incorporation doctrine it was applied against State governments. No private entity has ever been held to have violated the constitutional rights outlined in the bill of rights.

Some in the public have been confused by the 1965 Civil Rights Act and its applicability to private businesses that discriminate on the basis of race. However this is distinguishable because it is not a citizen vindicating constitutional rights against a private business but rather a private business being subject to regulations passed under the interstate commerce clause. Many people are unaware that the 1965 civil rights act and the county's history of anti-discrimination laws was predicated on the aggregate effect of race based policies on interstate commerce.

So what should you do? I am a lawyer not a doctor so I'll stick to the legal parts.

You have to make decisions for yourself and your family that you believe best protect yourself and your freedom and health.

What if I believe that we all need to wear masks or the risk to public safety is greatly increased? Wear a mask and avoid going in public as much as possible. But you have to understand that there are people who do not feel that way and there is no legal enforcement mechanism in place to enforce this viewpoint on others. Use the first amendment and speak out about your beliefs and convince your neighbor without resorting to government force.

What if I believe that wearing a mask is an affront to my personal sovereignty and dignity and provides no discernible health benefits? Don't go to businesses that require masks, and encourage businesses that have policies that you prefer. But you are going to have to recognize that there are people who do not feel the same and businesses may ask for law enforcement's assistance with criminal trespass. Use the first amendment and speak out about your beliefs and convince your neighbor without resorting to government force.


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