Rosenthal Barbieri

(972) 369-0577

We Pick Up the Phone Every Time; Call 24 Hours a Day, 7 Days a Week

What Happens If I Violate the Shelter-in-Place Order

by Kyle Therrian

My soliloquy.

We are living in an unprecedented moment in US history. As this global pandemic spreads and threatens our lives and livelihoods, some of our leaders have risen and met the challenge. As a result, many of us are now the subject of “stay-at-home” or “shelter-in-place” orders. And as a result, I write this article not from the luxury of the Rosenthal Barbieri criminal law offices, but instead from Law Office Command Center South (or as my wife calls it, the barstool I choose to sit on in our kitchen). Here, I have transacted business for the past eight days discussing new court procedures with fellow leaders of the criminal defense bar, waxing eloquent in legal briefs, and occasionally yelling at elected officials via Facebook.

While I’ve mostly looked at our government’s response to our predicament as a scared lawyer, I realize many others are looking at it just plain scared. Some are eager for our government to step in and “flatten the curve” but others see this as freedom restricted in the land of freedom. I stand with those calling for the former. But, it’s easier to dismiss the latter when thinking with a lawyer’s brain. This is not martial law, nor the unraveling of American Democracy. Our American Democracy, as well as our Texas Democracy, envisions strong executive powers in a time of emergency and disaster. And, we are no strangers to being called upon by our country. It’s a little harder than jury service, but we are certainly capable of rising to the challenge. And when we do, we should take solace in the strength of the American Rule of Law.

So, here goes my lawyer brain again. Before we take solace in the Rule of Law, we should know it.

Who has authority to issue disaster orders in Texas?

Chapter 418 of the Government Code gives authority to issue executive orders in Texas during a time of emergency or disaster. Section 418.011 assigns to the governor the responsibility of meeting “the dangers to the state and people presented by a disaster,” and Section 418.012 grants the authority to issue executive orders, proclamations, and regulations . . . [that] have the force and effect of law.”

Section 418.108 of the Government Code also gives local authority to declare a disaster: “the presiding officer of the governing body of a political subdivision may declare a local state of disaster.” These are your mayors and your county judges (think of the “county judge” as a mayor of the county – not a judge who wears a robe). The authority granted by state law to mayors and county judges includes the authority to evacuate areas, to restrict access to areas, and to “control the movement of persons and the occupancy of premises.” A local declaration of disaster also triggers the local jurisdiction’s emergency management plan – many of which grant powers as broad and sweeping as those granted to the governor.

How long can a disaster order last? Where are the checks and balances?

Government Code Section 418.014 provides that a governor’s declaration of disaster lasts for 30 days unless the governor terminates the order sooner. The governor may renew a disaster order and “[t]he legislature by law may terminate a state of disaster at any time.”

Government Code Section 418.108 provides that a mayor or county judge’s declaration lasts seven days before it must be submitted to the governing body (council or commissioners court) for approval or disapproval. The governing body must continue to vote upon the continuation of the disaster declaration every seven days.

Orders to address the disaster may be issued, amended, and rescinded at will by the issuing official. To the extent a conflict exists between the orders of a mayor and a county judge, the decision of the county judge prevails.

What are the penalties for violating an emergency order?

It is a crime to violate an emergency disaster order. Section 418.173 of the Government Code provides penalties for violation of emergency disaster orders, whether issued by governor, mayor, or county judge. It provides that an emergency management plan “may prescribe a punishment for the offense but may not prescribe a fine that exceeds $1,000 or confinement in jail for a term that exceeds 180 days.”

When the municipality or county emergency management plan authorizes punishment in excess of $500 or any amount of jail time, the case must be filed and prosecuted in the county courts. In scenarios where a 180-day sentence is authorized, it is the equivalent of a Class B Misdemeanor offense.

What else should I know?

A disaster order triggers enhanced penalties in certain situations. When a federal, state, or local disaster is declared, the following offenses are enhanced by one level: Assault, Arson, Robbery, Burglary, Burglary of Vehicle, Criminal Trespass, and Theft. By way of example, this means your typical misdemeanor assault would become a felony if committed during a declared disaster.

The stay-at-home or shelter-in-place orders I’ve seen all carve out an exception for conducting “essential business.” On the more extreme end of the panic spectrum are fears that the police will exercise authority to stop whomever they please and require proof that the person is conducting essential business. I’m aware of no agency which has instructed their officers to conduct such stops. Moreover, the Constitution remains intact. An officer still needs reasonable suspicion that criminal activity is afoot before he or she may stop and detain someone. Mere presence outside of your home probably does not rise to this level.

Having conducted a more-than-cursory amount of digging, it seems that several local government bodies have neglected to publish their emergency management plan. When it comes to enforcement, this presents Constitutional problems including lack of Notice and Due Process. You can’t be punished for a crime the government didn’t announce existed. Merely stating in a proclamation that something is a crime is probably not enough.

Despite these nuanced, wonky aspects of the law, it’s probably best to simply follow your orders. Hopefully, your sense of duty and patriotism compels you. Our collective health is in your hands, and yours is in ours. Try to remember that this will pass, America is not over, and the rule of law remains strong.