In a March 24 press conference, Tarrant County Judge Glen Whitley announced an order allowing the seizure of public property. According to attorney Brent Webster, this may be an overstep of judicial powers from applying a state law incorrectly. Only the governor has the authority to make that declaration, said Webster. It is also against the fifth amendment of the American constitution, which states private property shall not "be taken for public use, without just compensation."
According to the Ft. Worth Times, during the press conference with Fort Worth Mayor Betsy Price and Arlington Mayor Jeff Williams, Judge Whitley announced that residents would be required to stay home unless leaving for an essential job or to obtain essential items for the home. After that announcement, he presented the property seizure order.
“That the county is authorized to commandeer or use any private property, temporarily acquire, by lease or other means, sites required for temporary housing units or emergency shelters for evacuees, subject to compensation requirements, pursuant to § 418.020(c) of the Texas Government Code,” the order stated.
Webster says Whitley used executive power he does not legally possess.
“It is not legal and it is unconstitutional. The statute does not provide that power to the local authorities — only the governor has this authority, and the governor’s authority is limited because it requires compensation to the private citizen,” Webster said. “Gov. Greg Abbott has issued no orders to seize property. Furthermore, the Fifth Amendment to the U.S. Constitution guarantees that private property can not be taken without just compensation, and requires due process of law. The local order by the Tarrant County judge did not include those protections.”
Webster said there are statutes in place that give the county judges powers similar to the governor in states of emergency. Those powers allow them to evacuate and control the movement of the people, but they do not include property seizure. By his observation, this is most likely due to a misinterpretation of the statute that gives the judge his powers. Webster also provided reassurance by letting citizens know they are still protected by law.
“In the event that the government does seize your private property, you should contact an attorney immediately to stand up for your rights,” Webster said. “Lawsuits and injunctions can be filed to either prevent the seizure, or make sure that you are justly compensated for the actions taken by a government official.”