AG Opinion Request RQ-0342-KP Legality of Emergency Orders

[ELB]

Dear General Paxton,
This letter serves as a formal request for your opinion regarding the legality of state and local emergency orders enacted under Texas Government Code 418. In the wake of the Covid-19 virus, Governor Greg Abbott issued an executive order on March 19, 2020, and many counties and cities have issued more far-reaching orders since that time. The question is whether the contents of such orders are legal under the statute, Texas Constitution, and United States Constitution. An order from Hood County, dated March 25, 2020, is attached as Exhibit A. It is substantially similar to other orders issued in counties such as Tarrant, Dallas, Travis, Bexar, and Harris.

Question #1: May local governments commandeer private property under GC 418.108, when this authority is only vested in the governor under GC 418.017(c)?

Question #2: May the state or local governments determine whether certain businesses may be open or closed for lengthy periods of time, based on their authority to control ingress, egress, and occupancy of certain disaster areas under GC 418.018(c) and 418.108(g)? Is this a depravation of private property without the due course oflaw under the Fourteenth Amendment to the U.S. Constitution and Section 19 of the Texas Bill of Rights? In particular, was this power contemplated by _HB 3111 in 2005, which gave local governments new powers under GC 418.108(f)-(h), with the stated intent to increase their ability to deal with hurricane damage? (See Exhibit B.)

Question #3: Are the state and local executive orders unconstitutional under the Texas and United States Constitutions? The various executive orders ban certain social gatherings, worship services, travel, and health care, among other things. Do these run afoul of the First Amendment...

The quote is chopped off because for some reason I can’t copy the second page of the request, but you get the idea.

Read whole thing here:

https://www2.texasattorneygeneral.gov/o ... &utm_term=

[Grayling813]

After reading that I recall reading some place that Gov. Abbott said he was leaving certain measures up to local government officials. If that is correct: 1. Does the governor legally have the ability to cede his authority to local government officials? 2. Is the governor doing that to let local government officials take the heat instead of him?

Don’t get me wrong, I generally agree with Gov. Abbott but still recognize that he is a politician and politics can drive his actions.

[The Annoyed Man]

After reading that I recall reading some place that Gov. Abbott said he was leaving certain measures up to local government officials. If that is correct: 1. Does the governor legally have the ability to cede his authority to local government officials? 2. Is the governor doing that to let local government officials take the heat instead of him?

Don’t get me wrong, I generally agree with Gov. Abbott but still recognize that he is a politician and politics can drive his actions.

I could never be a politician....I’m too lazy, and I’d just tell the people whatever I think they want to hear.

[Grayling813]

After reading that I recall reading some place that Gov. Abbott said he was leaving certain measures up to local government officials. If that is correct: 1. Does the governor legally have the ability to cede his authority to local government officials? 2. Is the governor doing that to let local government officials take the heat instead of him?

Don’t get me wrong, I generally agree with Gov. Abbott but still recognize that he is a politician and politics can drive his actions.

I could never be a politician....I’m too lazy, and I’d just tell the people whatever I think they want to hear.

[Mel]

After reading that I recall reading some place that Gov. Abbott said he was leaving certain measures up to local government officials. If that is correct: 1. Does the governor legally have the ability to cede his authority to local government officials? 2. Is the governor doing that to let local government officials take the heat instead of him?

Don’t get me wrong, I generally agree with Gov. Abbott but still recognize that he is a politician and politics can drive his actions.

I could never be a politician....I’m too lazy, and I’d just tell the people whatever I think they want to hear.[/b]

I thought that was the definition of a politician!

[C-dub]

I have a feeling that all of these orders/requests will be determined to be constitutional because religious organizations and gun related businesses are not being singled out. It is a blanket sort of decree.

[ELB]

The AG weighs in:

https://www.texasattorneygeneral.gov/op ... &utm_term=

KP-0304
Ken Paxton
Categories
County Officers - Specific , Commissioner/County Judge , Governor , Municipal Officers and Employees , Real Property , Authority and Duties
Summary
Government Code section 418.108 does not, by itself, authorize a county judge, a mayor of a municipality, or any other local government official to commandeer private property to respond to a disaster.

[C-dub]

In this instance, does "commandeer" mean to close down?

It also seems to me that all these orders to close are not "to" respond to a disaster, but rather simply a response. It is, of course, much more complicated than that.

However, it does look like my feeling about the legality of them keeping gun stores closed was wrong, while I am shocked at Kansas' requirement that churches provide the names and addresses of anyone that attends services no matter how many or what precautions are being taken inside.

[ELB]

A little more from the AG's opinion. Emphasis added to note that while the locals may not commandeer private property, the Governor can:

Subsection 418.108(a) authorizes the presiding officer of the governing body of a political
subdivision to declare a local state of disaster. TEX. GOV’T CODE § 418.108(a).4 Once a disaster
has been declared, subsection 418.108(f) authorizes the county judge or mayor of a municipality
to “order the evacuation of all or part of the population from a stricken or threatened area under
the jurisdiction and authority of the county judge or mayor” if “necessary for the preservation of
life or other disaster mitigation, response, or recovery.” Id. § 418.108(f). In addition, the county
judge or mayor “may control ingress to and egress from a disaster area under the jurisdiction and
authority of the county judge or mayor and control the movement of persons and the occupancy
of premises in that area.” Id. § 418.108(g).

However, nothing in the language of section 418.108 authorizes county judges, mayors of
municipalities, or any other local government officials to commandeer private property. See id.
§ 418.108. In contrast, under subsection 418.017(c), the Legislature gave the Governor express
authority to “commandeer or use any private property” upon determining that it is necessary to
cope with a disaster. Id. § 418.017(c).5 The Legislature expressly conferred some, but not all, of
the extraordinary emergency powers given to the Governor to local government authorities.
“When the Legislature uses a word or phrase in one portion of a statute but excludes it from
another, the term should not be implied where it has been excluded.” R.R. Comm’n of Tex. v. Tex.
Citizens for a Safe Future & Clean Water, 336 S.W.3d 619, 628 (Tex. 2011). Without an express
grant of authority to commandeer private property in section 418.108, we cannot conclude that
section impliedly grants local government officials authority to commandeer property.6