April 24, 2020

Republican Rides to Rescue of Resort Home Owners
Despite Colorado Suspicion and Hypocrisy Insinuation

By Mike Hailey
Capitol Inside Editor

A powerful state lawmaker from a Texas coastal area contended on Friday that some local leaders had overstepped their bounds dramatically with prohibitions on people sheltering in place at homes that aren't their primary residences during the corinavirus crisis.

State Rep. Dade Phelan - a Beaumont Republican who chairs the State Affairs Committee in the Texas House - requested a formal opinion from Attorney General Ken Paxton on the question on whether cities and counties can keep folks who own second homes from hunkering down in them while state and local lockdowns are in place to slow the COVID-19 spread.

Phelan might assume that he knows what the answer will be in light of Paxton's experience in a recent clash with local officials in the Rocky Mountains where the popular Colorado ski resort of Crested Butte is located. Paxton's office declared in a letter to Gunnison County authorities two weeks ago that a temporary ban on tourists had been unconstitutional because it discriminated against people who own second homes.

The top Texas lawyer who's also a Republican scored a partial victory with a compromise that he struck with Gunnison officials who agreed to let nonresidents to remain in the mountain homes and condos that they own if they'd been there for at least two weeks before the public health order that prompted Paxton's intervention.

Paxton raised the specter of a potential court challenge at a time when local leaders in resort areas around the nation were adopting restrictions that were designed to protect the permanent residents in their jurisdictions from being exposed to the coronavirus by outsiders who'd decided to flee bigger cities in hopes of riding out the storm in areas that aren't as congested and potentially dangerous as a result.

Phelan is on the basic page with Paxton as a lawmaker who represents a district that's an hour drive or less to island towns like Crystal Beach on the Bolivar Peninsula near Galveston.

"Some local officials in Texas have taken advantage of the uncertainty created by the current crisis and used that uncertainty to impose laws within their jurisdiction that are blatantly unconstitutional," Phelan argued. "This is a private property rights issue. The government does not, and should not, have the power to deny a lawful homeowner access to their property."

But Phelan is wading into a gray area nonetheless in the midst of a pandemic during which Governor Greg Abbott and local officials across Texas have wielded unprecedented clout with emergency declarations that they've cited as the source of their authority for lockdowns since the coronavirus outbreak in Texas early last month.

A significant number of local government leaders from coast to coast have sought to keep people who aren't yearlong residents from importing the disease into mountain resorts, beach towns and lakeside communities where people from major cities have second homes as getaways. The blockades on people coming in from out of town has sparked a growing debate on whether the official emergency tags give cities and counties the right to make the public health and safety a higher priority than the rights of property owners.

Deputy Gunnison County Attorney Matthew Hoyt and Paxton both indicated that they'd been satisfied with the terms of the truce that they reached last week. But Hoyt had appeared to be prepared initially to reject the Texas AG's demands on the grounds that they'd been suspicious and hypocritical.

Hoyt questioned in a five-page response to Paxton assistant David Hacker whether the Texas attorney general had been truly representing the people of Texas or shilling for someone outside of state government with the threat of legal action if Gunnison County refused to back down.

"As a threshold matter, please 1) identify your client(s), and 2) please provide us the authority under which you make your inquiry. Do you purport to represent the State of Texas, the Governor of the State of Texas, or some other person or entity?" Hoyt demanded in the initial reply to Paxton. "Please disclose the person(s) for whom you are making your inquiry and the legal authority that you contend empowers you to make such an inquiry of Gunnison County."

The Colorado official also pointed out that Abbott had blocked travelers from flying into Texas from destinations that had been coronavirus hot spots with an additional ban on people driving here from Louisiana where News Orleans had been a breeding ground for the contagion with the Mardi Gras festival in late February.

Hoyt cited a litany of court rulings that reaffirmed in his opinion the rights that government leaders have public health emergencies before Gunnison County agreed to meet Paxton halfway with the amending of the local order that the Texas AG had sought to have overturned.


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