After more Texas counties issued COVID-19 stay-at-home orders this past weekend, a lot more Texans are being ordered to limit their trips outside of the home and practice social distancing. While stay-at-home orders do not function exactly the same as a lockdown and people can still move about fairly freely, the restriction on gatherings of generally more than ten people (New Mexico imposed a ban on five or more with some exempt gatherings) seems the provision most likely to be violated. But there are some people out there who might take advantage of the current situation, or otherwise react negatively to it, by preying on others and committing more egregious offenses. While the majority of us don’t plan on committing any crimes or violating emergency orders, it’s good to know what the ramifications are of committing a crime under these circumstances.

WHAT DOES THE LAW SAY?

The Texas Government Code Chapter 418[1] contains Emergency Management laws that clarify and strengthen the roles of the governor, state agencies, and local governments in prevention of, preparation for, response to, and recovery from disasters. Section 418.004 defines a disaster as “the occurrence or imminent threat of widespread or severe damage, injury, or loss of life or property resulting from any natural or man-made cause, including fire, flood, earthquake, wind…epidemic…[or] other public calamity requiring emergency action.” (Full text here: https://law.justia.com/codes/texas/2005/gv/004.00.000418.00.html ). In addition, the presiding officer of the governing body of a political subdivision may declare a local state of disaster, as many Texas counties have done. Each person in this state is to “conduct himself and keep and manage his affairs and property in ways that will reasonably assist and will not unreasonably detract from the ability of the state and the public successfully to manage emergencies.” (Section 418.151). And, Section 418.173 says, “(a) A state, local, or interjurisdictional emergency management plan may provide that failure to comply with the plan or with a rule, order, or ordinance adopted under the plan is an offense. (b) The plan may prescribe a punishment for the offense but may not prescribe a fine that exceeds $1,000 or confinement in jail for a term that exceeds 180 days.”

Currently, a first offense of these orders is going to get you a $500 fine and a second offense, $1,000 fine or 180 days in jail. And, if you commit a more serious crime in a disaster area, your punishment can get bumped up to the next highest level. This is controlled in Texas by the Texas Penal Code, Section 12.50 – Penalty if Offense Committed in Disaster Area or Evacuated Area.<a target=”_blank” href=”http://undefined”>[2]</a> <br>

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The increase in the punishment authorized by Section 12.50 applies only to the following offenses:

  • Burglary of Coin-Operated or Coin Collection Machines[7]
  • Burglary of Vehicles[8]
  • Criminal Trespass[9] and
  • If the assault, burglary of a coin-operated or coin collection machine, burglary of vehicle, criminal trespass, or theft is punishable as a Class A misdemeanor, the minimum jail time is increased to 180 days. If the arson, burglary, or theft is punishable as a first-degree felony, the punishment cannot be increased under Section 12.50.[11]

There is a defense of necessity to theft specifically mentioned but this defense may apply to other crimes if you reasonably believe your actions are immediately necessary to avoid imminent harm; and the harm caused by your actions does not outweigh the harm you seek to avoid. Basically, if the crime you commit is to avoid danger and the harm you cause is not greater than the harm you are trying to avoid, you may be able to escape the consequences of a conviction.[12] But, if you created the harmful situation by being reckless or negligent, then the acts you committed to avoid that harm are not protected by this defense.

ENFORCEMENT OF SOCIAL DISTANCING




If you’ve taken a look at emergency orders from different counties, you’ve probably noticed some are stricter than others. For example, Governor Abbott’s order prohibits gatherings of more than ten people; Dallas County and Waco have shelter-in-place orders, and Hidalgo County even has a curfew from 10:00 p.m. to 5:00 a.m. Most authorities have reported voluntary compliance, but there are some who aren’t following orders, whether on purpose or not.

The city of Austin has received more than 300 reports regarding large gatherings, including restaurants and bars being open, since their order was issued. Code compliance officers have responded to these reports, issuing warnings or reminders about the restrictions, but I have not seen a report of a citation being issued yet. Harris County has been responding mostly to restaurants and bars being open, as well. Laredo has a COVID-19 task force, but they’ve not yet issued a citation either, that I have seen.

It seems like the focus is on restaurants, bars, and other public places, not house parties. Churches are also asked to handle services in such a way as to keep people safe and in some states are exempt from the gathering bans but are still encouraged to put services online or suspend services for a few weeks. And then you’ve got one City Counsel who voted down a shelter-in-place order, saying its residents will use ‘common sense’ and do not need to be ‘locked up’ in their homes. You can read more about that here: https://www.coveleaderpress.com/covid-19-news/copperas-cove-city-council-extends-disaster-declaration-votes-down-shelter-place-order.

REFUSAL TO QUARANTINE

Governor Abbott has created rules requiring anyone flying in from California, Louisiana, Washington and other coronavirus hot spots like New York, Miami, Atlanta, Detroit, and Chicago to self-quarantine for two weeks or risk jail time if not. He is setting up Dallas’ convention center downtown to house infected patients and asking state troopers to patrol highway entry points at the Louisiana border, requiring everyone stopped to fill out a form indicating where they will self-isolate. Abbott also issued an order prohibiting bond for anyone arrested on physical violence-related charges. So, even though officials aren’t cracking down very hard on the public in general when it comes to social gatherings, it is riskier for those who are coming into the state from COVID-19 ‘hot spots’ to violate any quarantine-related orders. But any Texan or traveler to Texas can get in some pretty big trouble for refusing to quarantine.

The law here comes from punishment for breaking health and safety codes. If a person (in Texas) refuses to abide by rules and guidelines set out by the government or health authorities during quarantine, that person may be charged with a third-degree felony. Here are some penalties you might face if you ignore quarantine in Texas:

  • Texas Health and Safety Code Section 81.085: failing to abide by a quarantine order is a third-degree felony with two to ten years in prison and/or up to a $10,000 fine.[13]
  • Texas Health & Safety Code Section 81.068: refusing to allow health officials or police officers to enter or inspect a property for possible infection is a Class A misdemeanor with up to one year in county jail and/or up to a $4,000 fine.[14]
  • Texas Health & Safety Code Section 81.066: knowingly concealing exposure to a communicable disease during an investigation by state or local health officials can be punished by up to 180 days in jail and/or a $2000 fine.[15]

The bottom line: you don’t want to mess this up. Be proactive and follow the codes defined by your local and Texas government. This can keep you safe and out of trouble.

The attorneys and staff at the Law Offices of Alex R. Hernandez, Jr. PLLC hope you stay healthy during the Coronavirus crisis. If you find yourself needing the assistance of an attorney, please feel free to contact my firm. I’m happy to help.

Alex R. Hernandez, Jr.