State fails to clarify Executive Order parameters

Southside Matt
Texas State

The position of Attorney General is vital to ensuring that the state’s laws are enforced properly. The office’s website describes the position as being “the State of Texas’s chief legal officer.” The website and statutes make it clear that the AG represents the state as a whole and that individuals are not represented by the office.

To represent the State, the AG is elected by the People. This is the only manner in which the AG is able to be held accountable to those who have retained the AG as the State’s legal representative is through election. While the AG’s opinions and actions are matters of public record, these are only provided upon request by agencies who do not have the authority to elect the AG or hold the Office accountable.

Agreeing that the AG cannot serve as representation for individuals and cannot provide legal advice to them, members of the People who have elected the AG often have questions or concerns where the AG’s opinion would be beneficial to the State as a whole. Instead, the AG is prohibited – some would say protected – from providing any information upon the request of an individual.

Such a situation where the AG’s opinion would be beneficial arose in the wake of Governor Greg Abbott’s Executive Order GA-40. The Order prohibits employers from requiring employees to receive COVID-19 vaccinations. Employee exemptions to vaccination requirements are wide-ranging but seem vague in regard to personal conscience exemptions. The Texas Workforce Commission (TWC) also generated a letter further confirming that employees released by employers for failing to be vaccinated would not be disqualified from receiving unemployment benefits should that be the primary or sole reason for the employee’s release.

The Order from the governor and the letter from TWC both indicate that vaccination status will be treated as a de-facto discrimination factor, but only seem to address employment. Restrictions have been placed on some employees based on the lack of vaccination, thereby performing similar discrimination that may or may not be covered by the Order.

The opinion of the AG would be helpful in this case to determine if the restrictions are in-line with the Order, or if further work needs to be done to prevent such discrimination that allows employees to keep their jobs but not get the full benefits afforded to those who have been vaccinated.

Without seeking an opinion, a request for information was sent to AG Ken Paxton’s office via its website asking if an opinion had been published in regard to this. The emailed response was that the AG’s Office is prohibited from providing legal advice or opinion based on the request of an individual. A similar inquiry was made of TWC asking for guidance in how they would be applying the provisions of the Order. As of this writing of this article, no response from TWC has been received. A follow-up request was sent to Gov. Abbott’s office via their website requesting clarification but did not provide enough time for a response prior to publication.

The statute outlining who can request opinions of the AG – Title 4, Subtitle A, Chapter 402, Subchapter A, § 402.045 – was written with the intent of allowing the AG to focus on the business of the State and to be hampered or delayed by individuals requesting advice, guidance, or opinion for their specific cases or frivolous matters. However, it also hampers those who employ the AG through election from being able to make inquiries that are relevant to the State as a whole.

Even in a situation where no legal advice or opinion is sought, the AG’s Office has indicated that they will hide behind the statute in an attempt to keep from providing information based on what should have been considered an Open Records Request. A simple “yes/no” question was submitted – Has AG Paxton generated an opinion of the applicability of GA-40 in such a scenario? – the answer of which could have been either that an opinion on this has not been requested or produced, or that an opinion has been requested along with information regarding where to find the opinion if it has been produced or an expectation of when such an opinion would be forthcoming.

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Hailing from the Great State of Texas, South Side Matt monitors government for compliance with the Constitutional values that founded the United States, and works to maintain liberty for all in that spirit. His articles focus on furthering this cause, but also occasionally go "off track" into lighter topics such as cooking, general life and others.

Fort Worth, TX

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