After Gov. Greg Abbott issued an executive order in March outlining actions permitting essential services and activities during the COVID-19 disaster, Tarrant County Judge Glen Whitley issued a variety of executive orders, including the controversial order that allowed the seizure of public property.
This caught the attention of attorney Brent Webster, who suggested that Whitley has overstepped his judicial powers and applied a state law incorrectly.
That section of the order has since been removed, following outcry from Webster and others.
Whitley has both judicial and executive powers, but on March 24, when he issued the controversial order, he also issued a stay-at-home order for Tarrant County. And, as the Fort Worth Times noted, these were among five orders Whitley has put in place since March 13. The stay-at-home order says county residents must stay at home unless they have a job deemed essential by the governor’s order, or if they need to obtain food or have another vital reason. Whitley’s order also closed churches, and outlawed public gatherings. Most controversially, he ruled the county had the power to seize private property.
The controversial part of the order read:
“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.”
Webster said Whitley does not have the power to authorize property seizure.
“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,” said Webster in an interview with the Southeast Texas Record. “Gov. Greg Abbott has issued no orders to seize property. Furthermore, the Fifth Amendment to the U.S. Constitution guarantees that private property cannot be taken without just compensation and requires due process of law. The local order by the Tarrant County judge did not include those protections.”