“The county judge and mayor have each determined the most appropriate measures for their jurisdictions. They make public policy; that is their role. It is not the role of this court to pick the policy I prefer,” said Judge Jill Willis of the 429th Judicial District Court in Collin County.
Willis went on to say that the plaintiff, realtor Derek Baker, had relied on a section of Texas law, Section 418.108 of the Texas Government Code. This section says that “to the extent of a conflict between decisions of the county judge and the mayor, the decision of the county judge prevails.”
Baker asserted in his lawsuit that because McKinney’s order was more restrictive and in conflict with the county order, it should not be enforced.
However, the judge explained that once the mayor’s order was adopted by McKinney’s city council and became a city ordinance, Section 418.108(h) regarding conflicts between mayor and county judge orders no longer applied. She, therefore, denied the injunction.
“Based on the merits of the lawsuit, the judge ruled correctly,” Baker told The Texan.
As a home rule city, McKinney is given much latitude in creating ordinances so long as they don’t violate the state constitution or statutory law. A mayor’s order and a city ordinance are different legal entities, Art Martinez de Vara, an attorney and former mayor in Bexar County, explained.
“Once an order becomes an ordinance, it changes legal character and supersedes the county judge’s order.”
McKinney’s city council voted to extend the mayor’s order and make it an ordinance on Friday, March 27, the same day that the lawsuit was filed.
Collin County Judge Chris Hill issued an order allowing county residents to travel to essential activities, which includes all businesses. He allowed gatherings of fewer than ten people. Further, his order required county residents to take necessary precautions to prevent the spread of COVID-19 but did not require residents to shelter-in-place.
McKinney Mayor George Fuller issued a much more restrictive shelter-in-place order that defined essential businesses more narrowly and prohibited all public gatherings.
Baker, a realtor in McKinney, sought the injunction based on Section 418.108. He asserted that the mayor’s order was in conflict with the county order and therefore, the county order must prevail. He said the judge was ready to issue an injunction in his favor on Friday, but then the city changed the order into an ordinance on Friday afternoon, making his lawsuit moot.
Additionally, Baker posited that because his real estate business was not included as an essential business in the mayor’s order, he can not operate and is suffering harm in the form of lost business which violates the Texas Constitution, Article I, Section 17 against taking property without just compensation. Since the lawsuit was filed, the city has said publicly that his real estate business is considered essential.
Baker emphasized that he never considered Mayor Fuller his enemy and has in fact been praying for the mayor’s daughter who has coronavirus.
“We have different views about proposals, but we had a good discussion and will collaborate on solutions that allow the maximum number of people back to work in a safe manner in McKinney,” Baker said.
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Kim Roberts is a regional reporter for the Texan in the DFW metroplex area where she has lived for over twenty years. She has a Juris Doctor from Baylor University Law School and a Bachelor's in government from Angelo State University. In her free time, Kim home schools her daughter and coaches high school extemporaneous speaking and apologetics. She has been happily married to her husband for 23 years, has three wonderful children, and two dogs.