Updated: Apr 16, 2020
Just watching what is going on online and listening to news, it appears that more and more of the people of Texas are ready to throw off the chains of the lockdowns imposed on their livelihoods and liberty by their governor and by their county and city governments.
This article makes the case that the orders by Texas state and local officials are not allowed by current Texas law, and they certainly are not allowed by the Texas Bill of Rights.
The lockdowns make us ask fundamental questions about the nature of the government created by the constitutions of Texas and the United States. What is the legitimate function of our government in Texas? What is the government permitted to do and what is it prohibited from doing under our Constitution?
The framers of Texas formed our government to allow us to gain the benefits from interacting with others while being protected from aggression by others under fixed rules of law. Because they realized that the force of government could be abused, making government, itself, the aggressor/tyrant, the Texas Bill of Rights was created to limit the power of government while it was going about lawfully protecting citizens from the threats of other citizens.
Judicial opinions in the Texas and federal judiciary often talk about balancing the “police power” of Texas against the liberties protected in the Texas Bill of Rights. But when I read my Texas Constitution, when I search for the word, “police,” I find references to pensions and benefits for surviving spouses, but no definition or discussion of police power. I find no overarching principles discussing safety or health or welfare or the common good. I only find a full-throated dedication to liberty and a “free government” in the preamble to the Texas Bill of Rights, as well as absolute, no-exception statements about habeas corpus and the Bill of Rights in general.
As Justice Don Willett said in the 2015 case, Patel v Texas Department of Licensing and Regulation, “The Texas Constitution – then and today – exists to secure liberty.” Liberty and justice for all are our highest political values in Texas. In other words, in Texas, we err on the side of liberty over safety and emergency.
So, what is a legitimate police power that is authorized by the Constitution that is to be balanced against the liberties protected by the Texas Bill of Rights? Legitimate, constitutional police power is justified when it is used against force, fraud, or threats by one citizen against another.
If someone murders, or robs, or sexually assaults another, that is clearly actionable under the police power. It is even acceptable to use law and law enforcement to retaliate against those who threaten others. We have lots of constitutional laws implementing that idea: DWI, terroristic threats, harassment, mental health evaluations and commitment if a person is determined to be a threat to others, etc. To deny liberty to individuals under all of those threats requires due process for each individual, requiring proof that they indeed have threatened others.
Note that police power is NOT legitimate against potential threats or low likelihood threats. Our law and our Constitution requires that individuals have to have actually harmed someone or knowingly threatened someone to legitimately have the awesome power of the police brought to bear against them. Pre-crime thinking is not allowed under our system of government. We as individuals don’t get to speculate that someone MIGHT harm someone else, therefore their liberty should be curtailed. To do so would completely swallow up the principle that liberty is our highest value.
It is the threat of harm (not the mere potential or possibility of harm) by an individual to another that justifies the police power in a pandemic situation. In the Texas Health and Safety Code, we have the Communicable Disease Chapter 81 (enacted in 1989) that says if the government “has reasonable cause to believe that an individual is ill with, has been exposed to, or is the carrier of a communicable disease, the department or health authority may order the individual . . . to implement control measures that are reasonable and necessary to prevent the introduction, transmission, and spread of the disease in this state.” Violation of such orders is a Class B misdemeanor. (Section 81.083)
Note that the statute as applied to individuals is a legitimate use of the police power of Texas because it focuses on someone who either is proven to be or has a high likelihood of being a threat to others. What this statute does not address, and what would NOT be a legitimate use of police power is the situation we face with COVID-19 – the fact that there is a low likelihood that EVERYONE might be a threat to others because the disease makes people contagious for a period of time without them (or anyone) knowing it.
Note that it is NOT the Communicable Disease statute that is being invoked by Texas officials for the lockdown. The reason is that the rationale for the lockdown is not a legitimate one for the use of the police power. We are being locked down and people’s liberty and natural rights to meet the obligation of contracts, to earn a living, to peaceably assemble, to worship, and to travel are being violated because each one of us MIGHT be a threat to others.
Because Texas courts balance legitimate police power against burdens on liberty, any attorney suing on behalf of Texans over this issue will have to persuade the Texas judiciary that the pre-crime thinking that people’s liberty ought to be restricted because they MIGHT be a threat to someone else is not a legitimate use of the police power. Since the rationale for the use of force is completely illegitimate under our system, there is nothing to balance against the guaranteed liberties of Texans. Something (liberty) beats nothing (illegitimate attempt at the use of police power) every time.
The statute being invoked by the governor, the counties, and cities is the Texas Disaster Act, passed in 1975, and codified in the Texas Government Code as Chapter 418, called Emergency Management.
Before we look at what that code says, it is important to know that the Texas Bill of Rights says about whether emergencies justify the violation of our natural rights in Texas. Stated completely and simply, they don’t. See these absolute statements in the Texas Bill of Rights:
Sec. 29. BILL OF RIGHTS EXCEPTED FROM POWERS OF GOVERNMENT AND INVIOLATE. To guard against transgressions of the high powers herein delegated, we declare that everything in this "Bill of Rights" is excepted out of the general powers of government, and shall forever remain inviolate, and all laws contrary thereto, or to the following provisions, shall be void.
Sec. 12. HABEAS CORPUS. The writ of habeas corpus is a writ of right, and shall never be suspended. The Legislature shall enact laws to render the remedy speedy and effectual.
Section 418.185 in the Emergency Management Chapter of the Government Code allows the governor, a county judge, or a mayor to order an evacuation of a disaster area. Section 418.018 empowers the governor to control ingress and egress to and from a disaster area and Section 418.018 empowers county judges and mayors to do the same. Section 418.173 allows the state and localities to set a $1,000 fine or confinement in jail for up to 180 days for violating emergency management plans.
But I can find no authorization in the cited law for the draconian orders issued by the governor and localities to shut down businesses, disallowing assemblies, or worship in the Texas Disaster Act. Even if they did, if they do not cite individuals for being a known or likely threat to others, those actions are likewise not legitimate police actions in Texas.
To those who are thinking that we desperately NEED to save lives by restricting the liberty of people who might be threats to others, I say several things. First, the medical community has told us that this disease is mostly a threat to those with known issues of compromised immune systems, including the elderly. Given that, the people most at risk need to have that information and can self-isolate if they choose.
Second, many will voluntarily follow recommendations by public health officials. It is just that a one-size-fits-all government mandate is not constitutionally permissible.
Third, we are being told that three clinical trials show an antidote/mitigating regimen to COVID-19. We just got the news, today that the nursing home in Texas City has successfully stopped COVID-19 with that hydroxychloroquine treatment.It appears the threat of COVID-19 is now much less than it was.
Fourth, Representative Steve Toth has reminded us that deaths occur from economic collapse, maybe more than deaths caused by this disease. Focus on one threat to the exclusion of others is not responsible policymaking.
Fifth, when appropriate, let’s use the individual restrictions with due process in the Communicable Disease statute against those who are proven to be threats by being actually ill or who are known to have been exposed to COVID-19.
Liberty allows a free people to more flexibly and rapidly adapt to threats from nature. Command and control is not only morally offensive and unconstitutional, it is not as practical as liberty, either.
It is time that the people of Texas tell our elected officials that it is past time to honor their oaths and act in a constitutional way in the face of the COVID-19 outbreak. It is time to end the lockdown and set Texans free to responsibly manage their environment.
Tom Glass lives in Northwest Harris County. Click here to reach his email. He is also on Facebook as Tom G Glass. He leads a group called Texas Constitutional Enforcement which can be explored at its website or Facebook group.