If we have learned two things over the past year about pandemic response, it’s that: (1) government restrictions don’t stop the spread of COVID-19 and, (2) clueless politicians don’t appear to grasp the first point.

For five months after Florida opened completely and proved COVID restrictions have no effect on the trajectory of the pandemic, Gov. Greg Abbott ignored the evidence and kept Texas masked and under varying levels of lockdown. Since he removed all restrictions in March, Texas has seen declining cases, deaths, and hospitalizations. But, unlike Florida Gov. Ron DeSantis, Abbott hasn’t seen this as a sign that masks and distancing don’t work and admitted his mistake. Instead, he attributes the decline to Texans voluntarily following his edicts after the mandates were removed and has kept triggers in place that will potentially lock down Texas in the future.

As legislators around the country are protecting their states from future lockdowns and mask mandates, Abbott pushing legislation that doubles down on his disastrous COVID policies of the past year. SB 6, which the House will vote on Friday, is his latest attempt.

Authored by Sen. Kelly Hancock and sponsored by Rep. Jeff Leach in the House, SB 6 addresses civil liability if COVID or a future pandemic disease is spread among customers on the premises of a business. Gov. Abbott made it an emergency item and, as such, was undoubtedly heavily involved in the drafting of the bill.

This sounds good on paper. A broad statutory liability protection, such as that passed in Florida, would surely benefit businesses by clarifying that they are not liable for the spread of disease on their premises if they are following state or federal law. But SB 6 was deceptively written to punish businesses that do not follow the lengthy and overly restrictive recommendations of the CDC, Department of State Health Services, and liberal local governments related to the pandemic. Since there have been no noteworthy cases establishing that any such liability currently exists, it is unclear what purpose SB 6 has other than as a backdoor way to impose further restrictions on the public.

Specifically, SB 6  protects businesses unless they “knowingly failed to implement or comply with government-promulgated standards, guidance, or protocols intended to lower the likelihood of exposure to the disease.” This means every CDC or City of Austin “standard,” “guidance,” and protocol, which has included social distancing, capacity restrictions, double-masking, and masking of toddlers, would be the codified standard of care required of Texas businesses, even in the absence of a government mandate. During Senate debate, the bill author referred to businesses not adopting these standards as “bad actors.” On the contrary, SB 6 doesn’t punish “bad actors”; it punishes common sense.

Rep. Leach recently took issue with my characterization of the bill’s effect, claiming a separate section of the bill protects businesses who decline to adopt CDC or DSHS recommendations such as masks or distancing if the governor or local officials declined to issue an order requiring them. But the section he cites does no such thing.

SB 6 states “if an order, rule, or authoritative declaration promulgated by the governor, the legislature, a state agency, or a local governmental entity with jurisdiction over the person conflicts with a different government-promulgated standard, guideline, or protocol, a person may not be considered to fail to implement or comply with the government-promulgated standard, guideline, or protocol if, at the time of the injured individual’s exposure to the pandemic disease during a pandemic emergency, the person is making a good faith effort to substantially comply with at least one conflicting order, rule, or declaration.” (emphasis mine) That is, if there is a conflict between an authoritative declaration of one level of government with the guidance of another, a business can choose one or the other.

The issue is that the mere lack of a government mandate does not “conflict” with guidance to voluntarily adopt a restriction. Governor Abbott himself stated the lack of a mask mandate or other government-mandated restrictions does not conflict with guidance to implement them in the absence of a mandate. In fact, the same day Abbott announced the end of all state COVID restrictions, he recommended following the same standards previously mandated, stating, “Removing state mandates does not end personal responsibility. … Personal vigilance to follow the same standards is still needed to contain COVID. It’s just that now state mandates are no longer needed to stay safe.”

His March 2 executive order lifting the mandates expressly allows businesses to require masks and follow other restrictions, and DSHS and CDC continued to recommend such measures. Certainly, the guidance for businesses to adopt these restrictions are not in “conflict” with the mere absence of a government mandate. Accordingly, they are given the force of law by SB 6 by allowing businesses who fail to implement them to be sued.

What does this mean in our everyday lives? It means your child’s preschool may be liable for an outbreak if it doesn’t require masks on 3-year-olds. It means that differing guidance for vaccinated and unvaccinated individuals related to masks and distancing will incentivize businesses and employers to determine your vaccination status. Perhaps worst of all, it will slow our return to normal by subjecting our everyday lives to the whims of unelected government health bureaucrats who have been continuously wrong for the past year, as businesses adjust policies to protect themselves from liability.

Businesses deserve real protection from COVID liability. If a business owner is following the law, he or she should be protected. But bills like SB 6 that give the ever-changing “recommendations” and “guidance” of unelected bureaucrats the force of the law should offend every Texan yearning for a return to normal.

This is a commentary published with the author’s permission. If you wish to submit a commentary to Texas Scorecard, please submit your article to submission@texasscorecard.com.

Matt Rinaldi

Matt Rinaldi is the general counsel for a Texas healthcare company, director for a publicly traded hotel and hospitality company, and was a Texas state representative representing northwest Dallas County from 2015-19. He graduated with honors from both Boston University School of Law and James Madison University, with a degree in economics.


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