Can a Texas county judge keep renewing a local disaster declaration without the commissioners court's consent?

Plain-English summary

The Goliad County Attorney asked the Attorney General five questions about a county judge's authority to declare and end a local disaster under section 418.108 of the Government Code. The opinion answers each in turn.

First, on who can declare a local disaster: section 418.108(a) lets the presiding officer of a political subdivision's governing body declare a local state of disaster. A county is a political subdivision, its commissioners court is the governing body, and the county judge presides over that court, so the judge may declare a local disaster. Doing so gives the judge added powers, such as ordering an evacuation and controlling movement into and out of the disaster area. But the AG stressed two limits. The commissioners court's consent is required to continue or renew a declaration for more than seven days, and the county's local disaster powers are subordinate to existing state law, including the Governor's executive orders and proclamations. The AG cited State v. El Paso Cnty. for the point that a Governor's executive order under chapter 418 supersedes a conflicting local order, and section 418.012 for the Governor's power to issue orders with "the force and effect of law."

Second, on terminating a declaration: section 418.108 talks about terminating a local disaster but does not name who does it. The AG reasoned that because the Legislature gave the county judge the power to decide a disaster exists and declare it, the judge also has the implicit power to decide it no longer exists and terminate the declaration at any time (citing Guynes v. Galveston Cnty. on county officers' broad implied powers). The commissioners court, by contrast, is not expressly given power to terminate within the first seven days, but because a declaration cannot continue past seven days without the court's consent, the court can effectively end it after seven days by withholding consent, conditioning its consent (including a time limit), or later revoking consent if it finds the disaster is over.

Third, on declaring a disaster "every seven days": the AG concluded a county judge cannot re-declare a new disaster for the same underlying circumstances, after the first seven-day period, without the commissioners court's consent. Reading the statute to allow that would let the judge circumvent the court's role and strip section 418.108(b) of effect, which the AG said could not have been the Legislature's intent (citing the Government Code's presumption that the whole statute is effective and Sneed v. Webre). Whether a later declaration is really for the same circumstances or a genuinely new disaster can be a fact question for the judge to decide first, subject to judicial review.

Fourth, on whether a border surge can be a disaster: section 418.004(1) defines "disaster" with a list of examples (fire, flood, epidemic, riot, and so on), and the Government Code says "including" is a term of enlargement, not an exhaustive list. So the AG concluded that under the right facts a surge of people unlawfully crossing the border into a county could create circumstances warranting emergency action and a local declaration, though whether the facts in a given county justify one is for the county judge to determine in the first instance, beyond the scope of an AG opinion. The AG noted the Governor had already issued (and renewed) a disaster proclamation on this subject covering several border counties, including Goliad.

Fifth, on spending: even during a declared disaster, the normal rules for county budgeting and finance still apply. The commissioners court has primary control over county finances, the county judge prepares the budget only as an officer of the court, and the court must approve expenditures (including emergency expenditures, which require "grave public necessity"). The AG concluded a county judge cannot pay county bills out of the contingent and uncommitted fund without the commissioners court's authorization or approval, citing State v. Hollins for the limited nature of county officials' authority.

What this means for you

This section describes what the opinion holds for each group. It is the AG's 2021 reading of chapter 418 and related statutes, persuasive but not binding.

County judges

The opinion recognizes the judge's power to declare and to terminate a local disaster, but it ties continuation past seven days to the commissioners court's consent and subordinates local orders to the Governor's executive orders. It also rejects re-declaring the same disaster every seven days to bypass the court, and it denies the judge unilateral spending power from the contingent fund.

Commissioners courts

The opinion describes the court's leverage: it can refuse consent to extend a declaration past seven days, attach conditions or a time limit when it consents, revoke consent later, and it controls county spending, including emergency expenditures that require a finding of grave public necessity.

County attorneys and emergency managers

The opinion treats whether a particular event (including a border surge) qualifies as a "disaster," and whether a later declaration covers the same circumstances, as fact questions for the county judge in the first instance, subject to judicial review, not questions the AG resolves.

Common questions

Q: Who can declare a local disaster in a Texas county?
A: The county judge, as presiding officer of the commissioners court, under section 418.108(a). The declaration gives the judge added powers like ordering evacuations and controlling access to the disaster area.

Q: How long does a local disaster declaration last?
A: It cannot be continued or renewed for more than seven days without the commissioners court's consent. After seven days, the court can end it by withholding or revoking consent.

Q: Can a county judge just declare a new disaster every seven days?
A: No, in the AG's view, not for the same underlying circumstances without the commissioners court's consent. That would defeat the court's statutory role and the seven-day limit.

Q: Can a Governor's order override a county's local disaster order?
A: Yes. The opinion says local disaster powers are limited by existing state law, and an executive order the Governor issues under chapter 418 supersedes a conflicting local order.

Q: Can the county judge spend from the contingent fund during a disaster without the court?
A: No. The AG concluded the normal budget rules still apply, and the judge cannot pay county bills from the contingent and uncommitted fund without the commissioners court's approval.

Background and statutory framework

Chapter 418 of the Government Code governs emergency management and disasters. Section 418.108 governs local disaster declarations: subsection (a) authorizes the presiding officer of a political subdivision's governing body to declare one; subsection (b) requires the governing body's consent to continue or renew it beyond seven days; subsection (c) requires prompt publicity for declaring, continuing, or terminating a declaration; subsection (d) activates emergency management plans; and subsections (f)-(g) grant evacuation and access-control powers. Section 418.004(1) defines "disaster," section 418.012 empowers the Governor to issue executive orders with the force of law, section 418.014 governs the Governor's own declarations, and section 418.107 addresses local emergency-management finance. The Government Code's construction rules supply interpretive presumptions: section 311.021(2) presumes the entire statute is effective, and section 311.005(13) makes "including" a term of enlargement. The county's status as a political subdivision rests on the Texas Constitution (article V, section 18(b); article XI, section 1) and Local Government Code section 81.001(b); county budget and finance rules appear in Local Government Code sections 111.002, 111.003, 111.008, 111.010, and 130.910.

The AG relied on State v. El Paso Cnty. (an El Paso court of appeals decision) and City of San Antonio v. City of Boerne (Texas Supreme Court) on limits to local power, Guynes v. Galveston Cnty. (Texas Supreme Court) on county officers' implied powers, Sneed v. Webre (Texas Supreme Court) on statutory construction, Meyers v. JDC/Firethorne, Ltd. (Texas Supreme Court) on the commissioners court acting as a body, and State v. Hollins (Texas Supreme Court) on the limited authority of county officials. It also cited its own opinion GA-0051 (2003) for the point that the existence of an emergency is a fact question.

Citations and references

Statutes:

• Tex. Gov't Code § 418.108 (local state of disaster)
• Tex. Gov't Code § 418.004 (definition of disaster)
• Tex. Loc. Gov't Code § 111.010 (county budget expenditures)

Key cases:

• State v. El Paso Cnty., 618 S.W.3d 812 (Tex. App.—El Paso 2020, no pet.) (Governor's chapter 418 order supersedes a conflicting local order)
• Guynes v. Galveston Cnty., 861 S.W.2d 861 (Tex. 1993) (county officers' broad implied powers)
• State v. Hollins, 620 S.W.3d 400 (Tex. 2020) (county officials' authority is limited to what statute grants or implies)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/ken-paxton/kp-0393
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2021/kp-0393.pdf

Original opinion text

PAXTON
ATTORNEY GENERAL OF TEXAS

November 17, 2021

The Honorable Rob Baiamonte
Goliad County Attorney
Post Office Box 24
Goliad, Texas 77963

Opinion No. KP-0393

Re: Authority of county judges to declare and terminate local disasters pursuant to section 418.108 of the Government Code (RQ-0408-KP)

Dear Mr. Baiamonte:

You ask several questions related to a county judge's authority to declare a disaster pursuant to section 418.108 of the Government Code.¹

I. Section 418.108 of the Government Code provides political subdivisions, including counties, limited authority to declare a local state of disaster.

Section 418.108 of the Government Code authorizes "the presiding officer of the governing body of a political subdivision [to] declare a local state of disaster." TEX. GOV'T CODE § 418.108(a). A county is a political subdivision of the State, and the commissioners court serves as its governing body. TEX. CONST. arts. V, § 18(b); XI, § 1. The county judge serves as the presiding officer of the commissioners court and is thereby authorized to declare a local state of disaster under section 418.108(a). TEX. GOV'T CODE § 418.108(a); see also TEX. LOC. GOV'T CODE § 81.001(b). Upon declaring a local state of disaster, the county judge obtains certain additional powers, including the ability to order the evacuation of a threatened area and to control ingress to and egress from the disaster area. TEX. GOV'T CODE § 418.108(f)–(g).

The Legislature limited the county judge's disaster authority by requiring the commissioners court's consent to continue or renew any local disaster declaration for a period of more than seven days. Id. § 418.108(b). Local disaster powers of a county are also limited by any existing state law, including any executive orders or proclamations issued by the Governor. See State v. El Paso Cnty., 618 S.W.3d 812, 822–25 (Tex. App.—El Paso 2020, no pet.) (concluding that to the extent of a conflict, an executive order of the Governor issued under chapter 418 supersedes a local order); City of San Antonio v. City of Boerne, 111 S.W.3d 22, 27–28 (Tex. 2003) (discussing limitations on commissioners courts' powers); TEX. GOV'T CODE § 418.012 (authorizing the Governor to issue executive orders having "the force and effect of law").

¹ See Letter from Honorable Rob Baiamonte, Goliad Cnty. Att'y, to Honorable Ken Paxton, Tex. Att'y Gen. (May 18, 2021) at 1 ("Request Letter").

II. The county judge may terminate a local disaster declaration at any time, and the commissioners court may prevent the extension of the declaration beyond seven days or revoke consent for its continuation thereafter.

You ask whether the county judge or the commissioners court possesses authority to terminate a local disaster declaration. See Request Letter at 1. We first address the authority of the county judge. Section 418.108 contemplates termination of local disaster declarations but does not expressly identify which official or entity terminates a local disaster declaration. TEX. GOV'T CODE § 418.108(c) ("An order or proclamation declaring, continuing, or terminating a local state of disaster shall be given prompt and general publicity . . . ." (emphasis added)). The Legislature authorized the county judge to make an initial determination that a disaster exists and declare it, and implicit in that authority is the county judge's ability to determine a disaster no longer exists and terminate the declaration at any time so determined by the county judge. Id. § 418.108(a), (c); see also Guynes v. Galveston Cnty., 861 S.W.2d 861, 863 (Tex. 1993) (explaining that county officers possess "broad implied powers" to accomplish their legitimate directives).

With regard to the authority of a commissioners court to terminate a local disaster declaration, section 418.108 does not expressly grant the commissioners court authority to terminate such a declaration within the initial seven-day period. Compare TEX. GOV'T CODE § 418.108, with id. § 418.014(c) (authorizing the Legislature to terminate a disaster declaration of the Governor at any time). But a local disaster declaration may extend beyond the seven-day period only with consent of the commissioners court. Id. § 418.108(b) ("A declaration of local disaster may not be continued or renewed for a period of more than seven days except with the consent of the governing body of the political subdivision[.]"). After seven days, the commissioners court may effectively terminate the disaster declaration by denying consent to continue or renew the disaster declaration. And the commissioners court could place conditions in its order consenting to the disaster declaration, including a limitation on the time period of consent. Furthermore, it could revoke its consent by subsequent order if it determined the disaster no longer existed, effectively terminating the disaster declaration. Thus, the county judge may terminate a local disaster declaration at any time, and a commissioners court may deny its consent to continue or renew the declaration after seven days, effectively authorizing the commissioners court to terminate the declaration at any point thereafter.

III. A county judge lacks authority to declare a new disaster for the same underlying circumstances without the consent of the commissioners court following the first seven-day period.

You also ask whether a county judge may "declare a disaster every seven days." Request Letter at 1. Section 418.108(b) establishes that if a commissioners court withholds consent, effectively terminating a declaration of a local state of disaster after seven days, a county judge may not renew or continue a declaration of a local state of disaster following that initial seven-day period. TEX. GOV'T CODE § 418.108(b). Section 311.021 of the Government Code provides that "[i]n enacting a statute, it is presumed that . . . the entire statute is intended to be effective." Id. § 311.021(2); see also Sneed v. Webre, 465 S.W.3d 169, 191–92 (Tex. 2015) (stating that courts construing the statute attempt to give effect to legislative intent and generally reject a narrow interpretation that would allow a party to circumvent that intent). If a county judge were permitted to declare a disaster every seven days for the same disaster, he would circumvent the authority of the commissioners court and remove all effect from section 418.108(b). Such an interpretation could not have been the intent of the Legislature and is not a permissible reading of section 418.108. Thus, a county judge may not declare successive disasters for the same underlying circumstances without the consent of the commissioners court following the first seven-day period. Whether a second disaster declaration is for the same underlying circumstances or a new disaster may involve fact questions and is a matter for the county judge to determine in the first instance, subject to judicial review. See Tex. Att'y Gen. Op. No. GA-0051 (2003) at 3 (explaining that the existence of an emergency is a fact question).

IV. A surge of individuals unlawfully crossing the border into the county could create circumstances warranting emergency action and a local disaster declaration.

In your third question, you ask whether "an influx of illegal aliens" could qualify as a disaster under section 418.108, authorizing the county judge to declare a disaster on that basis. Request Letter at 1. Section 418.004 defines "disaster" for purposes of chapter 418:

"Disaster" means the occurrence or imminent threat of widespread or severe damage, injury, or loss of life or property resulting from any natural or man-made cause, including fire, flood, earthquake, wind, storm, wave action, oil spill or other water contamination, volcanic activity, epidemic, air contamination, blight, drought, infestation, explosion, riot, hostile military or paramilitary action, extreme heat, cybersecurity event, other public calamity requiring emergency action, or energy emergency.

TEX. GOV'T CODE § 418.004(1). The Legislature has advised that the term "including" is a term "of enlargement and not of limitation or exclusive enumeration." Id. § 311.005(13). Thus, while the definition of disaster identifies specific examples that could create widespread or severe damage, injury, or loss of life or property, those examples are not an exhaustive list. Id. (explaining that use of the term including "does not create a presumption that components not expressed are excluded"). Whether the events occurring within a county are sufficient to warrant a local disaster declaration under section 418.108 is a determination for the county judge in the first instance. That determination will require evaluating the factual circumstances that exist within the county, something beyond the scope of an Attorney General opinion. But under certain facts, a surge of individuals crossing the border into the county could create circumstances warranting emergency action and a local disaster declaration under section 418.108.

We note that the Governor issued a disaster proclamation under section 418.014 that "the ongoing surge of individuals unlawfully crossing the Texas-Mexico border poses an ongoing and imminent threat" of disaster for several specified counties, including Goliad County, along the border.² He most recently renewed that disaster proclamation on September 28, 2021.³ In addition, the Legislature has also recognized in a similar context that a sudden migration of individuals into a jurisdiction can create an emergency or urgent public necessity requiring immediate action by a governing body. See id. § 551.045(e) (specifying examples of circumstances that allow for an emergency meeting under the Open Meetings Act).

V. A county judge lacks authority to pay bills incurred by the county out of the contingent and uncommitted fund without the commissioners court's approval.

In your final question, you ask whether a county judge may "pay bills incurred by the county out of the contingent and uncommitted fund without the commissioners court approval." Request Letter at 1. While a local disaster declaration activates emergency management plans and "authorizes the furnishing of aid and assistance under the declaration," political subdivisions make appropriations for emergency management services just as they would for ordinary expenses. TEX. GOV'T CODE § 418.108(d); see also id. § 418.107 (providing for local finance concerning emergency management). Thus, even during a disaster declaration, the normal rules for budgeting, accounting, and management of county finances apply. While the county judge may prepare the budget, he acts only as an officer for the commissioners court in doing so, and the budget only becomes effective upon approval by the commissioners court. TEX. LOC. GOV'T CODE §§ 111.002, .003, .008.

The commissioners court has primary control over county finances. Under normal circumstances, "the commissioners court may spend county funds only in strict compliance with the budget" and may "transfer an amount budgeted for one item to another budgeted item." Id. at § 111.010(b), (d). In emergencies, "[t]he commissioners court may authorize an emergency expenditure as an amendment to the original budget only in a case of grave public necessity," and the commissioners court has the authority to provide aid to disaster victims. Id. §§ 111.010(c), 130.910. A commissioners court acts as a body and generally no one member has independent authority to bind the county. Meyers v. JDC/Firethorne, Ltd., 548 S.W.3d 477, 488–89 (Tex. 2018). Though the county judge may spend funds allotted to him under the county budget for the purposes named in that budget, the county judge lacks authority to unilaterally spend county funds without commissioners court authorization or approval. See State v. Hollins, 620 S.W.3d 400, 406 (Tex. 2020) ("The authority vested in Texas counties—and county officials—is limited" to that which is expressly granted in statute or implied due to being "indispensable" regarding an express grant of authority.). Thus, a county judge lacks authority to pay bills incurred by the county out of the contingent and uncommitted fund without the commissioners court's authorization or approval.

² GOVERNOR OF THE STATE OF TEXAS, DISASTER PROCLAMATION (May 31, 2021). Office of the Governor, Proclamation 41-3822, 46 Tex. Reg. 3657, 3658 (2021).

³ GOVERNOR OF THE STATE OF TEXAS, DISASTER DECLARATION RENEWAL (September 28, 2021).

S U M M A R Y

Pursuant to section 418.108 of the Government Code, a county judge may declare a local state of disaster. Local disaster powers of a county are limited by any existing state law, including any executive orders or proclamations issued by the Governor.

The county judge may terminate a local disaster declaration at any time, and the commissioners court may prevent the extension of the declaration beyond seven days or revoke consent for its continuation thereafter.

A county judge lacks authority to declare a new disaster for the same underlying circumstances without the consent of the commissioners court following the first seven-day period.

A surge of individuals crossing the border into the county could and has created circumstances warranting emergency action and a local disaster declaration.

A county judge lacks authority to pay bills incurred by the county out of the contingent and uncommitted fund without the commissioners court's approval.

Very truly yours,

KEN PAXTON
Attorney General of Texas

BRENT E. WEBSTER
First Assistant Attorney General

LESLEY FRENCH
Chief of Staff

MURTAZA F. SUTARWALLA
Deputy Attorney General for Legal Counsel

VIRGINIA K. HOELSCHER
Chair, Opinion Committee