Ft Worth Times

A Texas county judge — a presiding figure with both judicial and executive powers — incorrectly applied a state law when he issued an executive order that would have allowed the government to seize private property, according to a veteran attorney.

That’s the view of Brent Webster, an Austin lawyer with extensive government experience.

At a March 24 news conference, Tarrant County Judge Glen Whitley issued the order in an attempt to deal with the COVID-19 pandemic. Standing with Fort Worth Mayor Betsy Price and Arlington Mayor Jeff Williams, Whitley issued a stay-at-home order for Tarrant County.

It was his fifth declaration of local disaster due to a public health emergency. Whitley has issued orders on March 13, 17, 18 and 23 before issuing the stay-at-home order, which mandates that people remain at home unless they work in a job deemed essential or if they need to obtain food or have some other vital need to be out in public. It closed churches, banned public gatherings and ordered people to shelter in place in an effort to slow the growth of the virus.

In that decree, Whitley said the county had sweeping emergency powers, including the right to seize private property.

“That the county is authorized to commandeer or use any private property, temporarily acquire, by lease or other means, sites required for temporary housing units or emergency shelters for evacuees, subject to compensation requirements, pursuant to § 418.020(c) of the Texas Government Code,” the order stated.

Webster said this is where Whitley overstepped his authority. A county judge can order evacuations, control ingress and egress into a disaster area, and control the movement of people and occupancy of premises, but nowhere in state law are they empowered to take private property, the attorney argued.

“It is not legal and it is unconstitutional. The statute does not provide that power to the local authorities — only the governor has this authority, and the governor’s authority is limited because it requires compensation to the private citizen,” Webster said. “Gov. Greg Abbott has issued no orders to seize property. Furthermore, the Fifth Amendment to the U.S. Constitution guarantees that private property can not be taken without just compensation, and requires due process of law. The local order by the Tarrant County judge did not include those protections.”

Ho noted that Abbott issued an executive order Tuesday that trumps local orders and suspended 418.101(b) and 418.108 to prevent actions not consistent with his order.

“He suspended the mayors’ and county judges’ abilities to infringe on certain constitutional rights of citizens by suspending Government Code 418.108, which gives them the right to control movement of people and occupancy of premises,” Webster said. “Furthermore, he suspended 418.1015(b) which was the statute that the Tarrant County judge was tenuously relying on to seize local property.”

Webster served five years as a Williamson County assistant county attorney and was an assistant district attorney for five years. He has practiced civil litigation at the law firm of Edwards Sutarwalla, with offices in Austin and Houston, since 2017.

A county judge in Texas has a variety of powers. It is not a strictly judicial role, although they do preside over misdemeanor criminal and small civil cases, probate matters and appeals from the Justice of the Peace Court. The judge serves as the presiding officer of the commissioners court, represents the county in numerous administrative functions and is in charge of emergency management.

That was the authority Whitley used to issue his March 24 order.

“During a disaster, county judges are given power under Section 418.108 of the Texas Government Code to take enumerated actions,” Webster said. “First, they can evacuate an area under (f). Second, they can control ingress to and egress from a disaster area and control the movement of persons and the occupancy of premises in that area, under (g).

“The Tarrant County judge issued an order under Section 418.108, but he included this provision that he could seize private property,” he said. “Nowhere under chapter 418.108 is the judge given the legal right to seize private property. The seizure of property is not mentioned at all in 418.108.”

According to Webster, Judge Whitley was apparently tenuously relying on a section of state law that  states that an “emergency management director serves as the governor’s designated agent in the administration and supervision of duties under this chapter. An emergency management director may exercise the powers granted to the governor under this chapter on an appropriate local scale.”

Webster said the judge misinterpreted the law.

“Under this code, the county judge operates as the ‘emergency management director,’” he said. “The Tarrant County judge likely thought he could assume the governor’s authority under this statute. That’s incorrect.

“In fact the governor had not issued an order to seize private property. And this is not a good reading of the statute because If you buy the argument that any declaration gives the county judges all of the governor’s powers, then there would be no reason for a good part of Section 418 to be included in the statute. The legislature clearly put Section 418.108 in to differentiate the powers of the local authorities as compared to the power of the governor. It is ridiculous that any local authority would claim power to seize private property without due process, without compensation and without legal authority.”

He said people’s right to private property endures.

“In the event that the government does seize your private property, you should contact an attorney immediately to stand up for your rights,” Webster said. “Lawsuits and injunctions can be filed to either prevent the seizure, or make sure that you are justly compensated for the actions taken by a government official.”