A Governor’s Executive Order is a “Law,” AG Opinion Suggests

An executive order issued under the governor’s emergency powers is a “law” as defined by the state Penal Code, a state attorney general’s opinion (AC-0005) issued today suggests in an answer to a question posed just over two years ago.

The opinion says that a court would likely conclude that if a governor issues an executive order under his or her state-law-granted emergency powers, then the executive order meets the definition of being a “law” as defined by the state Penal Code.

Declined to Speculate
But, the opinion declined to speculate if a public servant could be criminally prosecuted for violating an executive order — such as by violating Gov. Abbott’s (now rescinded) Executive Order GA-38 that banned governmental entities from imposing mask mandates.

Williamson County Attorney Dee Hobbs suggested in his request for an opinion — submitted on Sept. 10, 2021 — that governmental officials could be criminally prosecuted under another section of the Penal Code.

• Note: The part of the Penal Code cited by Dobbs provides that a public servant commits a Class A misdemeanor and could be fined up to $4,000 — and jailed for up to a year — for violating a “law” relating to the public servant’s office or employment.
  
  (Executive Order GA-38 provided that local governmental entities — and/or officials of those entities — could be fined up to $1,000 for violating the “no mask” mandate.)

District-Wide Mask Mandates
Hobbs attached to his request two documents from Round Rock ISD, issued in August 2021, announcing the imposition of district-wide mask mandates, with very few exceptions allowed.

But, Hobbs ultimately limited his inquiry to the AG seeking only an answer to the question of whether a governor’s executive order that is issued in regards to his emergency powers — as defined in state statutes — is a “law.”

First Assistant AG Brent Webster (subbing for the acting AG because she recused herself) noted in the opinion he issued that the AG’s office does not determine, via opinions, if a criminal violation occurred or if particular conduct constitutes a violation of a criminal law.

Would Likely Rule
With this in mind, Webster concluded that a court would likely rule that state law provides that executive orders issued by the governor pursuant to his emergency powers have the force and effect of “law” — as defined by the Penal Code as:

• “‘Law’ means the constitution or a statute of this state or of 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.”