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Texas Attorney General: It is a Law

Texas Attorney General: It is a Law

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The Texas Attorney General’s Office asserts that, under Section 418.012 of the Government Code, executive orders issued by the Governor constitute “law” as defined in the Penal Code Section 1.07(a)(30), due to their “force and effect of law”.


Texas Attorney General: It's a Law

Texas Attorney General: It’s a Law

The attorney general plays a crucial role in interpreting and applying existing laws in Texas. The authority to issue attorney general opinions is granted by the Texas Constitution and specific sections of the Government Code, such as 402.042 and 402.043.

Attorney general opinions are written interpretations of the law and go through a meticulous process of comprehensive review. They are not indicative of the attorney general’s personal beliefs, and the attorney general does not have the power to determine what the law should be.

Williamson County Attorney Seeks Clarification on Law Definition

Williamson County Attorney Dee Hobbs seeks clarification on whether a governor’s order issued under the authority granted in Chapter 418 of the Government Code can be considered “law” as defined in section 1.07(a)(30) of the Penal Code. This question arises in the context of enforcing executive orders issued in response to the COVID-19 pandemic.

On March 13, 2020, the Governor declared a state of disaster in Texas due to COVID-19, renewing it monthly until June 2023. The Legislature granted the Governor the power to issue executive orders, proclamations, and regulations, as well as amend or rescind them, upon declaring a disaster (TEX. GOV’T CODE § 418.012). These executive orders issued under the Governor’s emergency powers under the Texas Disaster Act are considered to have the force and effect of law.

As a result, the Governor has issued multiple executive orders, proclamations, and other statements pertaining to the COVID-19 disaster declaration.

Analysis of Williamson County Attorney’s Position

Williamson County Attorney Dee Hobbs argues that governmental officials who violated Executive Order GA-38 by imposing mask requirements may be subject to the provisions of the Penal Code. Specifically, Hobbs references subsection 39.02(a)(1) of the Penal Code, which states that a public servant commits an offense if they intentionally or knowingly violate a law relating to their office or employment.

While the determination of whether a government official violated this provision depends on specific factual circumstances, Hobbs seeks clarification on whether Executive Order GA-38 qualifies as a “law” as defined in subsection 1.07(a)(30) of the Penal Code.

The Texas Attorney General’s Office can consider whether an executive order issued by the Governor constitutes a “law” for the purposes of the Penal Code. Additionally, the Texas Supreme Court has recently affirmed the Governor’s authority to prohibit local officials from imposing mask requirements during a declared disaster, as evidenced in the case of Abbott v. Harris County.

It’s worth noting that Executive Order GA-38 is no longer in effect.

Texas Attorney General’s Office Offers an Opinion

According to the Texas Penal Code § 1.07(a)(30), the term “law” is defined as the constitution or a statute of the state or the United States, a written opinion of a court of record, a municipal ordinance, an order of a county commissioners court, or a rule authorized by and lawfully adopted under a statute. The Texas Attorney General’s Office must therefore determine whether an executive order issued by the Governor constitutes “law” under this definition.

Although an executive order is not the constitution or a statute, a written opinion of a court of record, a municipal ordinance, or an order of a county commissioners court, it does fall under the category of “a rule authorized by and lawfully adopted under a statute.” The Governor is authorized by Section 418.012 of the Texas Government Code to issue executive orders, proclamations, and regulations, and to amend or rescind them, in response to a declared disaster.

Therefore, based on the legislative intent expressed in the Government Code and the authority granted to the Governor, it is likely that a court would consider an executive order issued by the Governor to be a “law” for the purposes of the Penal Code § 1.07(a)(30). It has been recognized that executive orders issued by the Governor have the “force and effect of law”.

Texas Attorney General’s Office Issues Summary

Pursuant to section 418.012 of the Government Code, executive orders issued by the Governor pursuant to his emergency powers under chapter 418 have the force and effect of law. The Penal Code defines “law” to include a rule authorized by and lawfully adopted under a statute. A court is therefore likely to conclude that executive orders authorized by and lawfully adopted pursuant to the Governor’s statutory emergency powers constitute “laws” for purposes of subsection 1.07(a)(30) of the Penal Code.

Opinion No. AC-0005, Re: Whether an executive order is enforceable as a “law” under subsection 1.07(a)(30) of the Penal Code (RQ-0432-KP), Dated September 14, 2023, issued by Brent Webster, First Assistant Attorney General of Texas

REFERENCE: Opinion No. AC-0005, Re: Whether an executive order is enforceable as a “law” under subsection 1.07(a)(30) of the Penal Code (RQ-0432-KP), Dated September 14, 2023, issued by Brent Webster, First Assistant Attorney General of Texas.


You may be interested in our publishing on two State Board of Pharmacy officers resigning to avoid termination.

Or you may find our publishing about a TABC officer resigning to avoid termination, of interest.


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