Could a Texas county or city, under a COVID disaster order, stop a second-home owner from occupying their property or limit short-term rentals?

Plain-English summary

In the spring of 2020, with COVID-19 disaster declarations in place, the chair of the House Committee on State Affairs asked the AG two questions about local power over housing. Could a city or county operating under an emergency declaration prevent the owner of a second home from occupying it, and could it limit occupancy of housing based on the length of the term, the kind of restriction aimed at short-term rentals?

The AG started with the emergency statutes. The Government Code gives local officials extra authority during a declared disaster: once a local state of disaster is declared, a county judge or mayor may control ingress to and egress from a disaster area and control the movement of persons and the occupancy of premises in that area, and may order evacuations. The Health and Safety Code separately lets local health authorities impose temporary communicable-disease control measures like isolation and quarantine.

But those powers run up against constitutional limits. The AG emphasized that private property ownership is a fundamental right, that the right to use, lease, and enjoy property for lawful purposes is part of it, and that both the Texas due-course clause and the federal Due Process and Privileges and Immunities Clauses protect owners against arbitrary government interference and against discrimination based on residence. Government action that prevents an owner from occupying property is permissible only if it has a real or substantial relation to the State's police power and is not a plain, palpable invasion of fundamental rights, the standard the Fifth Circuit drew from Jacobson v. Massachusetts in In re Abbott. The AG said limited circumstances might create a state interest strong enough to justify some occupancy restriction during a disaster, but whether a particular regulation violates due process is a fact question for a court. The AG also flagged that residence-based occupancy restrictions raise equal protection concerns, but declined to address them because they were the subject of pending litigation.

The AG then turned to the Governor's orders, which it found decisive on the second question. Under the disaster statutes the Governor's executive orders have the force of law. Executive Order GA-21 supersedes any conflicting local order to the extent the local order restricts essential services, and GA-21 adopts the federal Department of Homeland Security's essential-workforce guidance, which includes residential and shelter services and the leasing of residential properties. Because of that, the AG concluded GA-21 prohibits a local entity, acting under its emergency powers, from issuing an order that limits occupancy of housing based on the length of the occupancy's term.

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 the Legislature and for local governments issuing COVID-19 orders, the opinion's reading at the time was twofold. On the constitutional side, the AG told local officials that their disaster powers to control occupancy of premises were real but bounded: an occupancy restriction had to have a substantial relation to the public-health emergency and could not arbitrarily single out owners by residence, and whether any given order crossed that line was for a court to decide on the facts. On the executive-order side, the AG gave a firmer answer: because GA-21 made leasing of residential property an essential service and overrode conflicting local orders, a local order limiting housing occupancy by length of term was prohibited. For second-home owners and short-term-rental operators, the opinion meant those term-based local restrictions were on shaky ground in May 2020. The AG expressly left the equal-protection question and the application to any specific local order unresolved, the former because of pending litigation and the latter because it turned on facts.

Common questions

Q: During a declared disaster, can a Texas county or city control who occupies property?
A: The disaster statutes let a county judge or mayor control the occupancy of premises in a disaster area, but the AG stressed that constitutional limits still apply: the restriction must have a real or substantial relation to the police power and cannot arbitrarily interfere with property rights or discriminate by residence.

Q: Could a local order ban short-term rentals by limiting occupancy to longer terms?
A: The AG concluded no, to the extent it conflicts with Executive Order GA-21. GA-21 treated leasing of residential property as an essential service and superseded conflicting local orders, so a local order limiting housing occupancy based on the length of the term was prohibited.

Q: Did the AG say second-home occupancy bans were flatly illegal?
A: No. It said such restrictions implicate fundamental property rights and the prohibition on residence-based discrimination, and that whether a specific restriction violates due process is a fact question a court must decide.

Q: What about equal protection?
A: The AG noted residence-based occupancy restrictions raise significant equal protection concerns but declined to opine because those questions were the subject of pending litigation.

Background and statutory framework

The emergency powers came from Government Code chapter 418, including sections 418.108(f) and (g) (control of occupancy and evacuation), 418.012 (force and effect of the Governor's orders), and 418.004(6), plus Health and Safety Code section 81.082 (communicable-disease control measures). The property-rights analysis rested on Hearts Bluff Game Ranch, Inc. v. State, 381 S.W.3d 468 (Tex. 2012), Terrace v. Thompson, 263 U.S. 197 (1923), and the short-term-rental decision Zaatari v. City of Austin, 2019 WL 6336186 (Tex. App.-Austin 2019). The due-course and privileges-and-immunities discussion drew on Texas Constitution article I, section 19, U.S. Constitution article IV and the Fourteenth Amendment, Hicklin v. Orbeck, 437 U.S. 518 (1978), Paul v. Virginia, 75 U.S. (8 Wall.) 168 (1869), Eggemeyer v. Eggemeyer, 554 S.W.2d 137 (Tex. 1977), and University of Texas Medical School at Houston v. Than, 901 S.W.2d 926 (Tex. 1995). The emergency-measures standard came from In re Abbott, 954 F.3d 772 (5th Cir. 2020), quoting Jacobson v. Massachusetts, 197 U.S. 11 (1905), and Spann v. City of Dallas, 235 S.W. 513 (Tex. 1921), with the level-of-scrutiny point from Schad v. Borough of Mount Ephraim, 452 U.S. 61 (1981). The Governor's COVID-19 orders included Executive Order GA-21.

Citations and references

Constitutional and statutory provisions:

• Tex. Gov't Code § 418.108; § 418.012; § 418.004
• Tex. Health & Safety Code § 81.082
• Tex. Const. art. I, § 19
• U.S. Const. art. IV, § 2, cl. 1; amend. XIV, § 1

Cases:

• Hearts Bluff Game Ranch, Inc. v. State, 381 S.W.3d 468 (Tex. 2012)
• Terrace v. Thompson, 263 U.S. 197 (1923)
• Zaatari v. City of Austin, No. 03-17-00812-CV, 2019 WL 6336186 (Tex. App.-Austin Nov. 27, 2019, no pet.)
• Hicklin v. Orbeck, 437 U.S. 518 (1978)
• Paul v. Virginia, 75 U.S. (8 Wall.) 168 (1869)
• Eggemeyer v. Eggemeyer, 554 S.W.2d 137 (Tex. 1977)
• Schad v. Borough of Mt. Ephraim, 452 U.S. 61 (1981)
• In re Abbott, 954 F.3d 772 (5th Cir. 2020)
• Jacobson v. Massachusetts, 197 U.S. 11 (1905)
• Spann v. City of Dallas, 235 S.W. 513 (Tex. 1921)
• University of Tex. Med. Sch. at Houston v. Than, 901 S.W.2d 926 (Tex. 1995)

Prior AG opinions referenced: KP-0118 (2016); GA-0526 (2007).

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/ken-paxton/kp-0308
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2020/kp-0308.pdf

Original opinion text

May 8, 2020

The Honorable Dade Phelan
Chair, Committee on State Affairs
Texas House of Representatives
Post Office Box 2910
Austin, Texas 78768-2910

Opinion No. KP-0308

Re: Whether a local governmental entity under an emergency declaration has the authority to prevent an owner of a second home from occupying that property or limiting occupancy of housing based on length of the occupancy's term (RQ-0352-KP)

Dear Representative Phelan:

You ask two questions related to local governmental entities' authority to regulate occupancy during emergency declarations.[1] Certain provisions within the Government Code provide governmental entities with additional authority during times of disaster to address emergency situations. See TEX. GOV'T CODE §§ 418.001-.261. Related to your question, the Legislature authorized the presiding officer of a governing body of a municipality or county to declare a local state of disaster. Id. § 418.108(a); see id. § 418.004(6). Once a local state of disaster has been declared, the "county judge or the mayor of a municipality 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). They may also "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 the county judge or mayor considers the action necessary for the preservation of life or other disaster mitigation, response, or recovery." Id. § 418.108(f). In addition to these general emergency powers, chapter 81 of the Health and Safety Code authorizes local health authorities to impose temporary communicable disease control measures, including, among other actions, restriction, isolation, and quarantine. TEX. HEALTH & SAFETY CODE § 81.082(a)-(b), (f).

Claiming authority under these emergency powers, some counties and municipalities in Texas have declared local disasters due to the spread of the disease COVID-19 and issued orders restricting the occupancy of certain residential properties. While you do not ask about any specific local order, your questions address the extent of local authority in this regard during a declared disaster. In particular, you ask whether a local governmental entity operating under an emergency declaration may "prevent an owner of a second home from occupying their property" or "limit occupancy of housing based on length of the occupancy's term." Request Letter at 1.

Your first question involves fundamental rights protected by the United States and Texas Constitutions. "Private property ownership is a fundamental right in the United States." Hearts Bluff Game Ranch, Inc. v. State, 381 S.W.3d 468, 476 (Tex. 2012). The "right of property" includes the "right to use and enjoy" the property "in a lawful manner and for a lawful purpose." Id. at 476. And the right "to lease property is a fundamental privilege of property ownership." See Terrace v. Thompson, 263 U.S. 197, 215 (1923) (noting that "essential attributes of property" include "the right to use, lease and dispose of it for lawful purposes"); see also Zaatari v. City of Austin, No. 03-17-00812-CV, 2019 WL 6336186, at *10 (Tex. App.-Austin Nov. 27, 2019, no pet.) (holding city ordinance banning short-term rentals of single-family residences not owner occupied was unconstitutional infringement on property rights).

The Texas Constitution provides: "No citizen of this State shall be deprived of life, liberty, property, privileges or immunities . . . except by the due course of the law of the land." TEX. CONST. art. I, § 19. Similarly, the United States Constitution provides that "[t]he Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States," U.S. CONST. art. IV, § 2, cl. 1, and "[n]o State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law . . . ." id. amend. XIV, § 1.[2] These provisions ensure that both Texans and residents of other states can equally use and enjoy property for lawful purposes; they further protect property owners against arbitrary interference by the government.[3] See Hicklin v. Orbeck, 437 U.S. 518, 524 (1978) (recognizing federal Privileges and Immunities Clause prohibits discriminating legislation against non-residents, gives non-residents free ingress into and egress from other States, and ensures non-residents are treated equally under the law among State residents, including when acquiring or using property (quoting Paul v. Virginia, 75 U.S. (8 Wall.) 168, 180 (1869))); Eggemeyer v. Eggemeyer, 554 S.W.2d 137, 140 (Tex. 1977) (noting Texas due-course clause requires both procedural and substantive due course). When a governmental entity infringes upon a fundamental right protected by the Due Process Clause, courts will "examine carefully the importance of the governmental interests advanced and the extent to which they are served by the challenged regulation." Schad v. Borough of Mt. Ephraim, 452 U.S. 61, 71 (1981).

Here, both the Texas and United States Constitutions prohibit government action that unlawfully discriminates on the basis of residence. Yet government action may prevent a property owner from occupying property so long as that restriction has some real or "substantial relation" to the exercise of the State's police power and is not "beyond all question, a plain, palpable invasion of rights secured by the fundamental law." In re Abbott, 954 F.3d 772, 784 (5th Cir. 2020) (quotation marks omitted) (recognizing state authority to implement emergency measures during a public health disaster only if those "measures have at least some 'real or substantial relation' to the public health crisis and are not 'beyond all question, a plain, palpable invasion of rights secured by the fundamental law'" (quoting Jacobson v. Massachusetts, 197 U.S. 11, 31 (1905))); Spann v. City of Dallas, 235 S.W. 513, 515 (Tex. 1921) (requiring preservation of public health, safety, comfort, or welfare to be "the real object and purpose" of government action depriving a person of property, lest such action be "a clear and direct invasion of the right of property"). Thus, limited circumstances may exist that create a state interest sufficient to warrant restricting occupancy of private property due to a disaster, or property owners' ability to lease their property to another. Whether a certain regulation violates due process is a question that a court must decide after determining the relevant facts. Tex. Att'y Gen. Op. No. GA-0526 (2007) at 6.

However, in addition to due process concerns, the Governor's Executive Orders issued pursuant to the COVID-19 disaster declaration are relevant to addressing your questions. The Governor declared a state of disaster in Texas due to COVID-19 on March 13, 2020.[4] The Legislature authorized the Governor, upon declaring a disaster, "to issue executive orders, proclamations, and regulations and amend or rescind them." TEX. GOV'T CODE § 418.012. The Governor's executive orders, proclamations, and regulations have the force and effect of law. Id. Pursuant to that authority, the Governor has issued multiple executive orders, proclamations, and other statements, relating to the COVID-19 disaster declaration, including Executive Order GA-21,[5] which addresses the provision of essential and reopened services.

Executive Order GA-21 provides that it supersedes "any conflicting order issued by local officials in response to the COVID-19 disaster, but only to the extent that such a local order restricts essential services or reopened services allowed by this executive order . . .". Exec. Order GA-21 at 6. Executive Order GA-21 adopts as essential "everything listed by the U.S. Department of Homeland Security (DHS) in its Guidance on the Essential Critical Infrastructure Workforce." Id. at 3. That DHS Guidance includes as essential "residential/shelter facilities and services," which encompasses the "the leasing of residential properties to provide individuals and families with ready access to available housing."[6]

To the extent a local order restricts essential services allowed by Executive Order GA-21, the Governor's executive order supersedes those restrictions. Exec. Order GA-21 at 6. Thus, Executive Order GA-21 prohibits a local governmental entity, acting under the authority of its emergency powers, from issuing an order that limits occupancy of housing based on length of the occupancy's term.

S U M M A R Y

The Texas and United States Constitutions prohibit government action that unlawfully discriminates on the basis of residence. They also ensure citizens receive due process and that the government does not act arbitrarily. To the extent a local ordinance restricting access to or limiting occupancy of private property exceeds these boundaries, it is unconstitutional.

In addition, the Governor declared a state of disaster in Texas due to COVID-19 on March 13, 2020 and issued executive orders related to the provision of essential services. Executive Order GA-21 supersedes any conflicting order issued by local officials in response to the COVID-19 disaster to the extent that such a local order restricts essential services, such as obtaining residential housing. GA-21 therefore prohibits a local governmental entity, acting under the authority of its emergency powers, from issuing an order that limits occupancy of housing based on length of the occupancy's term.

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 Letter from Honorable Dade Phelan, Chair, House Comm. on State Affairs, to Honorable Ken Paxton, Tex. Att'y Gen. at 1 (rec'd Apr. 24, 2020) ("Request Letter"), https://www2.texasattorneygeneral.gov/opinions/opinions/51paxton/rq/2020/pdf/RQ0352KP.pdf.

[2] While the Texas and federal Constitutions differ in that Texas refers to "due course" rather than "due process," Texas courts regard these terms as without substantive distinction unless and until a party demonstrates otherwise. See University of Tex. Med. Sch. at Houston v. Than, 901 S.W.2d 926, 929 (Tex. 1995) (citing Mellinger v. City of Houston, 68 Tex. 37, 3 S.W. 249, 252-53 (1887)).

[3] In addition to due process concerns, a local order restricting occupancy only for owners of second homes or property owners utilizing their homes for short-term rentals raises significant Equal Protection concerns. However, such questions are currently the subject of pending litigation and are therefore not appropriate for the opinion process. See Bryan v. Cano, No. 4:20-cv-00025-DC-DF (W.D. Tex. filed Apr. 10, 2020); see also Tex. Att'y Gen. Op. No. KP-0118 (2016) at 2 (declining to opinion on a question subject to pending litigation).

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

[5] Exec. Order GA-21 (May 5, 2020).

[6] U.S. Dep't of Homeland Security, Advisory Memorandum on Identification of Essential Critical Infrastructure Workers During COVID-19 Response (Apr. 17, 2020).