Recent Texas Attorney General Opinions

Note:  Included opinions are from July 11, 2021 through August 10, 2021.

KP-0380 (Face Coverings): Texas Executive Order GA-38 prohibits governmental entities from requiring any person to wear a face covering or to mandate that another person wear a face covering. Federal orders issued by the Centers for Disease Control

(CDC) and the Transportation Security Administration (TSA) attempt to require persons traveling on public transit to wear a mask and to require local transit authorities to enforce the federal mandate. However, a court could conclude that the CDC and the

TSA lack statutory authority to issue the face covering orders, particularly with respect to intrastate public transit systems.

Furthermore, a court may have a basis to conclude that TSA’s directive violates the Americans with Disabilities Act or is an unconstitutional attempt to commandeer local officials to enforce a federal regulatory scheme. Given the many concerns regarding the authority of the CDC and TSA to issue the federal orders requiring facial coverings on public transport, we are unable to definitively conclude that those orders preempt the Governor’s Executive Order GA-38.

KP-0379 (COVID-19 Vaccine) Pursuant to Executive Order GA-38, Texas state agencies and political subdivisions may not condition an individual’s access to a government facility on receipt of a vaccine administered under emergency use authorization and not yet approved by the Food and Drug Administration (FDA).

Furthermore, pursuant to Senate Bill 968, passed by the Eighty-seventh Legislature, a governmental entity in Texas may not issue a COVID-19 vaccine passport or any other documentation certifying COVID-19 vaccination status for any purpose other than health care. Implicit in this prohibition is that a governmental entity may not issue a COVID-19 vaccine passport and condition entry to a governmental facility on possession of it. This prohibition is not limited to vaccines issued under emergency use authorization and therefore will also apply to COVID-19 vaccines with full FDA approval.

KP-0378 (Contingent Fee Contracts):  House Bill 2826 from the Eighty-sixth Legislature amended subchapter C of chapter 2254 of the Government Code to add certain requirements to contingent fee contracts for legal services entered into on or after September 1, 2019. Senate Bill 1821 from the Eighty-seventh Legislature, effective on May 19, 2021, broadened the reach of those requirements by amending the definition of

“contingent fee contract” in subchapter C to include amendments to contingent fee contracts under certain circumstances. To the extent a contract amendment expands the scope of legal services to encompass a new legal matter, whether made before or after May 19, 2021, a court could find on particular facts that the amended contract is subject to chapter 2254 requirements regarding the governmental approval process, Attorney General approval, and a cap on fees. A contract amendment subject to chapter 2254 of the Government Code but failing to meet the law’s requirements is void under subsection 2254.110.