Untitled Texas Attorney General Opinion

The Attorney General of Texas
February 7, 1986
MARK WHITE
Attorney General
Honorable Henry Wade Opinion No. MW-&40
District Attorney
Sixth Floor. Records Buildin Re: Authority of county officials
Dallas, Texas 75202 - to act in an emergency, and related
questions.
Dear Mr. Wade:
You pose several questions regardingthe power of county officials to
act in ceses of natural disaster or other emergency, partieularly with
respect to the use of county equipment on private land. Our opinion is
directed to the authority granted by the Disaster Act of 1975, article
6669-7, V.T.C.S., and we do not address any broad constitutionat questtonS
affectiw the Act generally.
The Disaster Act of 1975, article 6889-7, V.T.C.S., is designed to
enable the State of Texas and its political s&divisions to p2an for, respond
to, and recover fmm natural or man-made disasters and the emegencies
such calamities create. To ‘that end section.5 of .tbe .Act cmtfers upon the
governor of the state extremely broad powers to declares disaster
emergencies and todealtwith``them. Among other things, it gives executive
orders, proclamations, and regulations “the force and effect of law” and
directs the governor to delegate or assign command authority embodiedin
appropriate executive orders or plans “to the greatest ~extent pra#zable.”
In addition to other powers conferred by law lpon the governor, section 5(g)
of the Act empowers him to suspend the provisions of any regulatory statute
that would hinder necessary action in coping with the emergency. See also
V.T.C.S. arts. 989a-k (emeqency funds); 589Oe (use of militia &ring state
of emergency). It also authorizes him to commandeer ar utilize any private
property if he finds it necessary to cope with the dbaster emergency,
stiject to any applicable requirements for compensation.
Executive Order No. WPC-11, issued August l5, 1979, superseded prior
executive orders of the governor implementing the Disaster Act of 1975. In
recognitkn of the fact thet the Act autkkee a eeuM+ 4tzmmhdoners
court to declare a local disaster emergency but fails to expressly confer
upon zany local offR%Di% extraordinary powers it ConYers upon ‘the governor
when he, rather than the local body, declares a disaster emergency, the
current executive order follows precedents, established by prior governors
p. 450
Honorable Henry Wade - Page Two (Mb’-1401
and designates the county judge of each county as the Disaster Director/Coordinator for
the county.
We think it is the intent of Executive Order WPC-11 to delegate to the county judge
in locally declared disaster emergencies the same powers, on an appropriate local scale,
that it delegates and assigns to the Director of the Division of Disaster Emergency
Service co a statewide basis. It intends that the county judge serve as the governor’s
designated agent in the administration and supervision of the Ter,as Disaster Act of 1975,
and that he may exercise the powers granted the governor therein. The executive order
expressly gives comparable authority to the statewide Director.
Under the Act and executive order, the county judge, by employing the delegated
power in a disaster emergency that has been locally declared by the commissioners Court,
may commandeer cr utilize any private property if he finds it necessary to do so in crder
to cope with the disaster emergency as long as his order is consistent with tha appliceble
disaster emergency plan. When he acts reasonably and justly in response to an impending
disaster or its spread, i.e., to meet an impending peril that threatens the public health and
safety when the public need greatly outweighs the private loss, the constitutional
requirement that property shall not be “taken, damaged or destroyed for or applied to
publfc use without adequate compensation” is not appIicable, tholrgh compensation may be
paid later if other law permits. Tex. Const. art. I, S 17; KeIler v. City of Corpus ChrIsti,
50 Tex. 614 (1879); Petty v. City of San Antonio, 181 S.W. 224 (Tex. Civ. App. - San
Antonio 1915, writ rePd1. Se City of Austin v. Teagu e, 570 S.W.2d 389 (Tex. 1978);
Crossman v. Cit ‘of Galvegn 247 S.WT. 23); Daven t v. East Texas
--la7 Civ. App. - Texarkanfel939, writ sdl. The Disaster
ct o 975, section 13, recognizes the obligation of every person to manage hw affairs and
property in ways that will not unreasonably detract from the ability of the public
SuccessfuIly to meet disaster emergencies, and specifies that compensation for the taking
or use of property shall be made only to the extent such obligations “are exceeded”
There are specific references in the Disaster Act of I975 regarding the clearing of
debris or wreckage from private property as well as from public property, but they are
cumulative of the provision allowing the commandeering or utilization of any private
property necessary to cope with the emergency. Section S(gl(13) allows the use of state
departments, agencies and instrumentalities to clear debris and wreckage in certain
instances, while section 5(j) requires certain authorizations or indemnifications before
debris can be removed. The latter, section 5(j), is applicable only in the recovery stage of
a disaster emergency when the immediate danger has passed. See 42 U.S.C. 5 5173. It
does not inhibit necessary action in t~he response strrge, when immediate action to avert
disaster is necessary. See Keller v. City of Corpus Christi, s.
When precipitate action is necessary in the response stage, neitherarticle I, section
17 of the Constitution, nor article III, sect,ion 51, prevents the utilization of county
equipment on private property - the first for the reasons already discumed, and the
second because the action is taken to directly accomplish a legitimate public purpose, not
to benefit the property owner. -See w 338 S.W.2d 133 (Tex. 1960).
p. 451
Honorable Henry Wade - Page Three (Mw-140)
Article HI, section 51 is no bar to a use, otherwise authorized, of county equipment on the
property of individuals, associations or corporations to aid in recovery from public
calamities, because the section itself declares that it “shall not be construed to prevent
the grant of aid in public calamities.” Attorney General Opinion WW-1248 (1962). &se Tex.
Co&t. art. VIII, S l6; art. XI, S 8. Cf. Brazes River Conservation and Reclamatiotiit. v.
McCraw, 91 S.W.2d 665 (Tex. 1936ra Attorney General Letter Advisory No. 92 (19751
7ikiZiiergency situation).
Absent authority similar to that delegated under the 1975 Act, county officials would
be greatly hampered in responding to many emergencies, for counties do not posseas the
general police power available to home rule cities Nevertheless, they have implied
authority to exercise a broad discretion in accomplishing the particular objectives
entrusted to them. Anderson v. Wood, 152 S.W.Bd 1084 {Tex. 194% Commissioners Court of
Harris County v. Kaiser, 23 S.W.2d 840 (Tex. Civ. App. - Galveston 1929, writ ref’dl. See
e.p,. V.T.C S 190 - l92b (destruction of animals) 695c S 39 (relief aervices~ Id
addibonal*~w~orcement officers); 1659. 1659a. li59b (kmergency purchases); 2351
(specified powers); 235la - 2351a-5 (fire fighting); 2372m (rabies -epidemics 4434 (public
health cooperation); 4459; 4480 (quarantine); 4477-7 (waste d@osal); 4478 (medical
facilitiess);~ 6687-S (abandoned vehicles); 6699 (traffic officers); 6701g (traffic regulations);
Code Grim. Proc. arts. 8.01- 8.09 (riots). And the county ju@, of course, is individually
a ,ma&trate and a conservator of the oeace ooesesainx all the nowers of a oeace officer.
Tex. Const. art. V, SS 12, l5; Code Crik Proc: arts. 2.1%, 2.10; Jbnes v. Stat;, 62 S.W. 758
(Tex. Crim. 19OD.
Under the 1975 Act as implemented by Executive Order No. WPC-ll, the county
judge may use county equipment on private land if he reasona bly deems it necessary to
meet or prevent a locally declared disaster emergency, asPuming his action is consistent
with the local disaster plan so activated. We have examined the Emergency Operations
Pian of Dallas County approved by the commissioners court November 8, 1976, and find
that its 9th section provides:
During the emergency only, all resources within the limits of Dallas
County and its municipalities, both publicly and privately owned,
will be used when deemed necessary by local government officials
and upon orders of the County Judge/Mayor. Accurate records will
be kept concerning the use of privately owned resources for
purpose of possible reimbursement.
SUMMARY
Under the Disaster Act of 1975 as implemented by Executive Order
No. WPC-11 and the Emergency Operations Plan of Dallas County,
the county judge of Dal!as County may use county equipment on
private land if he reasonably &ems it necessary to meet or prevent
a locally declared disaster emergency.
mfi
MARK WHITE
Attorney General of Texas
P. 452
Honorable Henry Wade - Page Pour NW-140)
JOHN W. FAINTER, JR.
First Assistant Attorney General
TED L. HARTLRY
Executive Assistant Attorney General
Prepared by Bruce Youngblood
Aasbtnnt Attorney Geneml
APPROVED:
OPINION COMMI’lTEB
C. Rtit Heath, Chairman
David B. Brooks
Walter Davis
Bob Gammage
Swan Garrison
BruceYoungblood