Can a Texas county or city seize private property during a locally declared disaster?

Plain-English summary

With COVID-19 disaster declarations in place and local governments issuing their own orders, the Hood County Attorney asked the AG a focused question: does Government Code section 418.108 authorize local governments to commandeer private property? (He asked broader questions about the legality of state and local orders too, but the AG declined those because they were the subject of pending litigation, consistent with its policy of not opining on matters in active litigation.)

Chapter 418 of the Government Code, the Emergency Management chapter, gives special emergency powers to both the Governor and certain local officials. Once a local disaster is declared under section 418.108(a), the county judge or mayor may order an evacuation if necessary to preserve life or aid disaster response, and may control ingress to and egress from a disaster area and control the movement of persons and the occupancy of premises in that area.

But the AG found that nothing in section 418.108 authorizes county judges, mayors, or other local officials to commandeer private property. In contrast, section 418.017(c) expressly gives the Governor authority to commandeer or use any private property upon determining it is necessary to cope with a disaster, and section 418.152 addresses compensation when property is commandeered on the Governor's order. The Legislature granted some, but not all, of the Governor's extraordinary powers to local authorities. Citing the canon that a term used in one part of a statute but omitted from another should not be implied where excluded, the AG concluded section 418.108 does not impliedly grant local officials the power to commandeer property.

The AG added a caveat. Its conclusion did not foreclose local officials commandeering private property in limited circumstances when serving as the Governor's designated agent. Through a disaster declaration the Governor could authorize the local emergency management director (the presiding officer of a city or county) to commandeer or use private property, subject to the compensation requirements. The AG pointed to a 1980 opinion construing a predecessor statute, where a specific executive order activated the Governor's emergency powers for local officials so a county judge could use county equipment on private land when reasonably necessary. Whether and how far local officials hold that authority would be decided case by case, looking at the relevant executive orders and the circumstances.

Currency note

This opinion was issued in 2020. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule mentioned here.

What the opinion meant for those who asked

For Hood County and other local governments operating under disaster declarations, the opinion's reading at the time was that their emergency toolkit under section 418.108 was real but did not include seizing or commandeering private property. The AG drew a sharp line: the Legislature gave that extraordinary power to the Governor, not to county judges and mayors, and the absence of the power from the local-authority section was deliberate, not an oversight a court should fill in. For property owners, the opinion meant a local official could control movement and occupancy in a disaster area but could not, on local authority alone, take their property for disaster response. The one opening the AG left was the Governor's designation: if the Governor activated his commandeering power through local officials acting as his agents, they might exercise it in limited circumstances, with compensation, and only as the executive orders and facts allowed. The AG expressly declined the requestor's broader questions about the legality of specific orders because they were in litigation.

Common questions

Q: Can a county judge or mayor seize private property in a local disaster?
A: The AG concluded no. Section 418.108 lets local officials declare a disaster, order evacuations, and control movement and occupancy, but it does not authorize commandeering private property.

Q: Who does have the power to commandeer property in a Texas disaster?
A: The Governor. Section 418.017(c) expressly authorizes the Governor to commandeer or use any private property when necessary to cope with a disaster, and section 418.152 addresses compensation for property used on the Governor's order.

Q: Is there any way local officials could commandeer property?
A: Possibly, in limited circumstances, if the Governor designates them as agents to exercise that power through the disaster declaration. The AG said this would be decided case by case based on the executive orders and the facts.

Q: Why did the AG read the statute this way?
A: Because the Legislature granted the commandeering power to the Governor in one section and left it out of the local-authority section. Under the canon the AG applied, a power excluded from one provision should not be implied into it.

Background and statutory framework

The analysis turned on Government Code chapter 418 (Emergency Management), including section 418.108 (local disaster declarations and the powers to evacuate and to control ingress, egress, movement, and occupancy), section 418.017(c) (the Governor's express power to commandeer or use private property), section 418.1015 (emergency management directors), and section 418.152 (compensation for commandeered property). The interpretive canon came from Railroad Commission of Texas v. Texas Citizens for a Safe Future & Clean Water, 336 S.W.3d 619 (Tex. 2011). The AG relied on its prior Opinion MW-140 (1980), construing a predecessor statute, for the agent-designation point, and GA-0609 (2008) for its policy of not opining on matters in pending litigation.

Citations and references

Statutory provisions:

• Tex. Gov't Code § 418.108; § 418.017; § 418.1015; § 418.152; § 418.016; § 418.018

Cases:

• R.R. Comm'n of Tex. v. Tex. Citizens for a Safe Future & Clean Water, 336 S.W.3d 619 (Tex. 2011)

Prior AG opinions referenced: MW-140 (1980); GA-0609 (2008).

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/ken-paxton/kp-0304
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2020/kp-0304.pdf

Original opinion text

May 7, 2020

The Honorable Matthew A. Mills
Hood County Attorney
1200 West Pearl Street
Granbury, Texas 76048

Opinion No. KP-0304

Re: Whether, when operating under a local disaster declaration, local governments may commandeer private property under Government Code section 418.108 (RQ-0342-KP)

Dear Mr. Mills:

Chapter 418 of the Government Code, titled "Emergency Management," grants special emergency powers to both the Governor and certain local officials to address a declared disaster. See, e.g., TEX. GOV'T CODE §§ 418.016 ("Suspension of Certain Laws and Rules"), 418.018 ("Movement of People"), 418.108 ("Declaration of Local Disaster"). The Governor declared a state of disaster in Texas due to COVID-19 on March 13, 2020.[1] The Governor has issued multiple executive orders, proclamations, and other statements relating to the disaster since that time, and you observe that "many counties and cities have issued more far-reaching orders" as well.[2] You question the legality of such local orders and ask whether section 418.108 of the Government Code authorizes local governments to commandeer private property. Request Letter at 1.[3]

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]

S U M M A R Y

Section 418.108 of the Government Code authorizes the presiding officer of the governing body of a political subdivision to declare a local state of disaster and grants local authorities certain powers to respond to the disaster. Section 418.108 does not authorize a county judge, a mayor of a municipality, or any other local government official to commandeer private property to respond to a disaster.

Very truly yours,

KEN PAXTON
Attorney General of Texas

JEFFREY C. MATEER
First Assistant Attorney General

RYAN L. BANGERT
Deputy First Assistant Attorney General

RYAN M. VASSAR
Deputy Attorney General for Legal Counsel

VIRGINIA K. HOELSCHER
Chair, Opinion Committee

[1] See Governor of the State of Texas, Disaster Proclamation (Mar. 13, 2020). The Governor extended the disaster declaration on April 12, 2020.

[2] See Letter from Honorable Matthew A. Mills, Hood Cty. Att'y, to Honorable Ken Paxton, Tex. Att'y Gen. at 1 (Mar. 30, 2020), https://www2.texasattorneygeneral.gov/opinions/opinions/51paxton/rq/2020/pdf/RQ0342KP.pdf ("Request Letter").

[3] You ask additional questions regarding the legality of the orders issued by state and local authorities; however, as explained in our April 2, 2020 letter to you, those issues are the subject of pending litigation. See Letter from Virginia K. Hoelscher, Chair, Op. Comm., Office of the Att'y Gen. of Tex., to Honorable Matthew A. Mills, Hood Cty. Att'y at 1 (Apr. 2, 2020) (on file with the Op. Comm.). Because this office has a long-standing policy of generally refraining from addressing issues involved in pending litigation, we decline to opine on your other questions and defer to the court's hearing those issues at this time. See Tex. Att'y Gen. Op. No. GA-0609 (2008) at 4 ("This office generally does not address matters that are the subject of pending litigation.").

[4] "A declaration of local disaster may not be continued or renewed for a period of more than seven days except with the consent of the governing body of the political subdivision or the joint board as provided by Subsection (e), as applicable." TEX. GOV'T CODE § 418.108(b).

[5] Section 418.152 of the Government Code recognizes that compensation may be available when property is "commandeered or otherwise used in coping with a disaster and its use or destruction was ordered by the governor or a member of the disaster forces of this state." TEX. GOV'T CODE § 418.152(c).

[6] Our conclusion does not foreclose the possibility that local government officials could possess authority to commandeer private property in certain limited circumstances when serving as the Governor's designated agent to respond to local disasters. The Governor, through the disaster declaration, could authorize the designated "emergency management director," which is the presiding officer of the governing body of an incorporated city or a county, to "commandeer or use any private property" upon determining that it is necessary to cope with the disaster subject to the compensation requirements. Id. §§ 418.017(c), .1015(a)-(b), .152. In considering a predecessor statute to chapter 418, this office concluded that a specific executive order activated the Governor's emergency powers for local officials such that a county judge could use county equipment on private land if he reasonably deemed it necessary to meet or prevent a locally declared disaster. See Tex. Att'y Gen. Op. No. MW-140 (1980) at 3. Whether and to what extent local officials possessed the authority to commandeer private property would be decided on a case-by-case basis, considering the language of any relevant executive orders as well as the circumstances surrounding the disaster in question.