Statewide NewsThe Implications and Legal Authority Behind “Shelter in Place” Orders

The legal authority of some elected officials to enact "shelter in place" orders has been on the mind of many Texans. Here are the arguments and implications.
March 26, 2020
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Many city mayors and county judges across Texas have been issuing orders that close businesses, limit operations of other businesses, and forbid people from gathering in groups, whether for social, business, or religious reasons in the bid to slow down the spread of the coronavirus.

Many residents in Texas are wondering, especially given the economic consequences, if these officials have the legal authority to enact such broad orders.

The law cited by mayors and county judges across Texas for their orders is Chapter 418.108 of the Texas Government Code.  

This chapter is titled the Texas Disaster Act of 1975. Among the disasters listed in the legislation is epidemics.

The governor is granted authority to issue executive orders under the Act and those have the force of law. If he declares a state of disaster, that proclamation continues for 30 days unless the legislature terminates the state of disaster. In Texas, the legislature meets in odd-numbered years for 140 days from January to May and by a special session called by the governor.  

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The section cited in the emergency orders, section 418.108, deals with the powers of local authorities in disaster situations. Under that section, the county judge or mayor may independently declare a disaster, but then it must be ratified by the commissioners’ court or city council or it ends after seven days.  

It allows mayors and county judges to order evacuations and control the flow of people from an area as required by the disaster.  

The Tarrant County order claims that Section 418.108 (f),(g) gives it the power to quarantine people, but the statute does not include the power to quarantine in those subsections. In fact, the term quarantine does not occur anywhere in Section 418.108 governing the actions of local officials during times of disaster.

The bill analysis accompanying it as it passed through the Texas Legislature says that section of the act was passed in 2005 after the Department of Homeland Security asked states “to evaluate our hurricane preparedness and assess Texas’ ability to respond to catastrophic hurricanes.” There is no mention in the bill analysis anticipating business closures by local officials.

Matt Rinaldi, a health care attorney and former state representative, questions the authority of local officials under this section to issue orders about certain businesses operating and others being closed. Under the initial Dallas County order, liquor stores are allowed to operate but gun shops are not.

“This [law] was meant for local officials to determine whether a building was inhabitable. It seems that they have gone far beyond that authority in the scope of the orders that have been issued. We should also question the propriety of those orders given the damage they will do,” Rinaldi explained.

Attorney and State Senator Bryan Hughes (R-Tyler) thinks the plain language of the statute allowing local officials “to control ingress to and egress from a disaster area…and control the movement of persons and the occupancy of premises in the area” applies in this situation and gives power to county judges to enact shelter-in-place orders. 

“As conservatives, we believe in the rule of law, so the language of the statute controls,” he said, but he also acknowledges that it could be made clearer.  

“When it was passed, it was about tornadoes and hurricanes, and things of that nature. A situation like we are in today is new to us all.”  

He also pointed out that there are limits to the power of the orders. “All the officials are elected by the people, the commissioners have to ratify it, and it is for a limited period of time, ” Hughes said.

Potential Implications for Citizens

In Texas, the Texas Religious Freedom Restoration Act forbids a governmental entity from substantially burdening the free exercise of religion. The government can overcome this by proving a compelling governmental interest and that it used the least restrictive means possible in furthering that interest.

In this case, the substantial burden is forbidding in-person religious worship services. The emergency orders in several major metropolitan counties in Texas only allow on-line broadcasts.

Plano-based First Liberty Institute, a legal organization dedicated to religious freedom, issued advice to churches stating that “temporary action to reduce the spread of a global pandemic is almost certainly a compelling reason, so long as the government is not treating religious institutions unfairly compared with how it treats other comparable gatherings.”

However, an issue may arise if the restrictions continue for a lengthy period of time beyond the scope of the public health crisis.

For those traveling to businesses deemed essential or grocery stores and pharmacies, there have been concerns about being pulled over by police. So what should a citizen do if pulled over while driving somewhere during the shelter-in-place orders?

Brent Webster, a criminal defense and civil litigation attorney with offices in Austin and Houston, advises citizens to politely decline to answer if asked where they are going.

“It is unknown how these will be enforced,” Webster said, as Texas has not enacted broad orders like these in the past.  

“However, the Constitution still applies. You have no obligation to answer. The best way to protect yourself is not to answer.”

“These orders are long and confusing. Most people are trying to comply, but they may not be certain of what is required of them by the orders.”

In addition, citizens need not allow police to come into their home or business without a search warrant, Webster clarified.

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Kim Roberts

Kim Roberts

Kim Roberts is a 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.

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