I just received my copy of "Texas Town & City" March 06, Volume XCIII, Number 3, the official publication of the Texas Municipal League. There is an article in this issue about a mayor's authority during a declared disaster.
If I'm reading this right, any preps that local citizens may have made (including my own), could be legally taken during a declared disaster by several different levels of governments: county and city (I'm mayor pro-tem of a small town near Lubbock). This make sense for any disaster that is contained or short term: hurricanes, tornadoes, wild fires etc, but not for a world wide pandemic.
Another reason not to advertise any steps that you have made to prepare for a pandemic. The real threat to your supplies may not be marauding masses with guns, but government officials with power.
May be I'm just a pessimist, but I can see it now. All levels of city/county/state/federal government workers/employees/elected officials who try to use their legal power to take what you've stocked to benefit the public (or will it be to assure that they and their family members survive).
This could be a nightmare. Here's the article:
"The Mayor's Authority During a Time of Disaster" by Scott Houston, TML Director of Legal Services.
During the hurricanes of late 2005, the TML Legal Services Department received several inquires about a mayor's authority when the govern declares a state of disaster. These questions ranged from whether a mayor may order an evacuation to whether a mayor may commandeer private property.
The answer to whether a mayor may order an evacuation was made clear in 2005, when the legislature amended Texas Government Code Section 418.108. That section now authorizes the mayor of a city to order an evacuation from an area to control the ingress and egress to and from a disaster area, if the mayor considers the action necessary for the preservation of life or other diaster mitigation, response or recovery. County judges have similar power, and to the extent of conflict between the orders to the mayor and the county judge, the orders of the county judge prevail.
The answers to other questions, such as whether a mayor may commandeer private property, are sometimes not as clear. Thus, it is essential to consult with local legal counsel prior to taking such action.
That being said, and by way of example, the following is a legal analysis that was prepared by the TML Legal Services Department regarding whether or not a mayor was authorized to commandeer private property for public use during Hurricane Rita.
Texas Government Code Chapter 418 (the Texas Disaster Act of 1975) generally governs disaster response. A "disaster" is defined by Section 418.004(1) to include essentially any imminent threat to safety from any man-made or natural cause. Section 418.012 authorizes the governor to issue executive orders an proclamations declaring a disaster. Those orders and proclamations have the force and effect of law.
Pursuant to Section 418.004(a), Governor Perry issued a proclamation on September 20, 2005, declaring Hurricane Rita a direct threat to the Texas coast. The proclamation, under the authority of Section 418.015, suspended all rules and regulations that would have inhibited or prevented prompt response to the threat for the duration of the incident.
During a declared state of disaster, the governor may, under Section 418.017(c), commandeer or use any private property if the governor finds it necessary to cope with a disaster, subject to certain compensation requirements.
In Executive Order RP32 (enacted January 28, 2004), the governor ordered that:The mayor os each municipal corporation...shall be designated as the Emergency Management Director for...[the mayor's city]... in accordance with Sections 418.102, 418.103, and 418.105 of the Act, and published rules of the Division of Emergency Management. These mayors...shall serves as the Governor's designated agents in the administration and supervision of the Act, and may exercise the powers, on an appropriate local scale, granted by the Governor therein.
Thus, RP32 arguably authorized--by itself and with no other legal authority--each mayor to "step into the governor's shoes" locally to commandeer private property.
For futher support, a city should have looked to its emergency management plan, which a city is required to adopt under Section 418.016. Many such plans contain language authorizing the city to use all resources, both publicly owned and privately owned, to respond to a disaster. The attorney general, in opinion MW-140 (1980), concluded that when a mayor declares a local state of disaster, a city's emergency management plan is activated. Thus, a plan that contemplates the use of private property adds additional support to the mayors authority to commandeer.
As outlined above, the Texas Disaster Act grants broad authority to the governor, county judges, and mayors during a state of disaster. Cwertain actions, such as the taking of private property, amy lead to lawsuits, and the decision to implement those actions should not be taken lightly. Officials should use their authority wisely to save life and property, and should always seek the advice of local legal counsel prior to taking action.
If I'm reading this right, any preps that local citizens may have made (including my own), could be legally taken during a declared disaster by several different levels of governments: county and city (I'm mayor pro-tem of a small town near Lubbock). This make sense for any disaster that is contained or short term: hurricanes, tornadoes, wild fires etc, but not for a world wide pandemic.
Another reason not to advertise any steps that you have made to prepare for a pandemic. The real threat to your supplies may not be marauding masses with guns, but government officials with power.
May be I'm just a pessimist, but I can see it now. All levels of city/county/state/federal government workers/employees/elected officials who try to use their legal power to take what you've stocked to benefit the public (or will it be to assure that they and their family members survive).
This could be a nightmare. Here's the article:
"The Mayor's Authority During a Time of Disaster" by Scott Houston, TML Director of Legal Services.
During the hurricanes of late 2005, the TML Legal Services Department received several inquires about a mayor's authority when the govern declares a state of disaster. These questions ranged from whether a mayor may order an evacuation to whether a mayor may commandeer private property.
The answer to whether a mayor may order an evacuation was made clear in 2005, when the legislature amended Texas Government Code Section 418.108. That section now authorizes the mayor of a city to order an evacuation from an area to control the ingress and egress to and from a disaster area, if the mayor considers the action necessary for the preservation of life or other diaster mitigation, response or recovery. County judges have similar power, and to the extent of conflict between the orders to the mayor and the county judge, the orders of the county judge prevail.
The answers to other questions, such as whether a mayor may commandeer private property, are sometimes not as clear. Thus, it is essential to consult with local legal counsel prior to taking such action.
That being said, and by way of example, the following is a legal analysis that was prepared by the TML Legal Services Department regarding whether or not a mayor was authorized to commandeer private property for public use during Hurricane Rita.
Texas Government Code Chapter 418 (the Texas Disaster Act of 1975) generally governs disaster response. A "disaster" is defined by Section 418.004(1) to include essentially any imminent threat to safety from any man-made or natural cause. Section 418.012 authorizes the governor to issue executive orders an proclamations declaring a disaster. Those orders and proclamations have the force and effect of law.
Pursuant to Section 418.004(a), Governor Perry issued a proclamation on September 20, 2005, declaring Hurricane Rita a direct threat to the Texas coast. The proclamation, under the authority of Section 418.015, suspended all rules and regulations that would have inhibited or prevented prompt response to the threat for the duration of the incident.
During a declared state of disaster, the governor may, under Section 418.017(c), commandeer or use any private property if the governor finds it necessary to cope with a disaster, subject to certain compensation requirements.
In Executive Order RP32 (enacted January 28, 2004), the governor ordered that:The mayor os each municipal corporation...shall be designated as the Emergency Management Director for...[the mayor's city]... in accordance with Sections 418.102, 418.103, and 418.105 of the Act, and published rules of the Division of Emergency Management. These mayors...shall serves as the Governor's designated agents in the administration and supervision of the Act, and may exercise the powers, on an appropriate local scale, granted by the Governor therein.
Thus, RP32 arguably authorized--by itself and with no other legal authority--each mayor to "step into the governor's shoes" locally to commandeer private property.
For futher support, a city should have looked to its emergency management plan, which a city is required to adopt under Section 418.016. Many such plans contain language authorizing the city to use all resources, both publicly owned and privately owned, to respond to a disaster. The attorney general, in opinion MW-140 (1980), concluded that when a mayor declares a local state of disaster, a city's emergency management plan is activated. Thus, a plan that contemplates the use of private property adds additional support to the mayors authority to commandeer.
As outlined above, the Texas Disaster Act grants broad authority to the governor, county judges, and mayors during a state of disaster. Cwertain actions, such as the taking of private property, amy lead to lawsuits, and the decision to implement those actions should not be taken lightly. Officials should use their authority wisely to save life and property, and should always seek the advice of local legal counsel prior to taking action.
