Covid Passports Banned in Texas

by Paul Premack, JD, CELA

The Texas Legislature passed SB 968, and the Governor signing it into law on June 16, 2021. It went into effect immediately.

SB 968 creates a new provision in Chapter 161 of the Texas Health and Safety Code, numbered as Section 161.0085. By state law, businesses are banned from asking a customer about the customer's Covid-19 vaccination status. The business cannot condition entry to, access to, or provision of services to any customer based on that customer's vaccination status or post-transmission recovery.

If a business does ask about a customer's vaccination status, it loses eligibility to receive state grants or to enter into contracts payable with state funds. Further, state agencies are allowed to require compliance with the new law as a condition for a license, permit, or other state authorization necessary for conduction business in Texas. Business should expect license applications and renewals to start asking about this issue and should expect state agencies to deny licensure or permits if the new law has been violated.

Does this apply to law offices? Lawyers are licensed by the Texas Supreme Court, through a state agency called the Board of Law Examiners. Once initially licensed, an attorney may practice law unless disbarred or suspended under the Texas Rules of Disciplinary Procedure. Those rules are enforced by the State Bar of Texas. The State Bar is, under section 81.011 of the Texas Government Code, a "public corporation and an administrative agency of the judicial department of government".

Section 161.0085 requires a "state agency" to ensure compliance. The State Bar could be construed to be a state agency per the Government Code. If so, the Texas Rules of Disciplinary Procedure and the Texas Disciplinary Rules of Professional Conduct apply. Rule 8.04(12) states a lawyer may not "violate any other laws of this state relating to... the practice of law". If "practice of law" is a "business" then a lawyer could conceivably be disciplined or disbarred for inquiring about a client's Covid-19 vaccination status.

The Premack Law Office has two reasons all consultations are held by video, phone, or other electronic means. First, we are not willing to risk our health or our client's health. Vaccinated individuals can still become ill with Covid. Medically fragile individuals are at even greater risk.

Second, we are not willing to risk disciplinary action for violation of Section 161.0085. We are barred from asking about vaccination status, so we will not ask. We will simply hold all consultations by video, phone, or other electronic means.

Fortunately, we discovered video conferencing is EASY and CONVENIENT. Clients enjoy the freedom to communicate from their homes, without the need to drive to our offices. We are able to serve a more geographically diverse group of clients in our Texas and our Washington practice. Even when the threat from Covid is eventually eliminated we will likely remain a "virtual law office".

Thank you for your patience, consideration, and understanding. May you continue to stay healthy, to avoid Covid exposure, and to receive timely effective legal services.

Column dated 7/14/2021