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There are unique circumstances where people and governments can “commandeer” private property. Sometimes it is called the theory of “public necessity.”

The standard examples taught in law school include an out-of-control fire and a local fire department’s destruction of a house near the fire in order to stop the fire from spreading.

The similar theory of “private necessity” allows ordinary, nongovernment people to use an available boat dock during an emergency, irrespective of the owner’s wishes, or to break a window and get a snake bite kit in the middle of the night when that’s the only solution. Supporters of this power will argue Tarrant’s recent emergency declaration is the same thing. In private situations, the nongovernment actor has to pay for what he takes; public situations can go either way.

Ordinary people will want to know when and what exactly it will entail. If it’s using an empty, unleased building to house the sick, and rent can be paid, that’s one thing. If it’s saying, “We need your guns to guard the hospital,” that’s something else.

In courts of law, we attorneys are required to cite statutes that support the legal answer we want. Any government document that says “I can take your stuff” should reference a specific law where that authority is claimed, particularly when a single elected official claims such power.

The Second Amended Declaration of Local Disaster Due To Public Health Emergency recently issued by Tarrant County Judge Glen Whitley cites no authorizing law but merely assumes that he has such power based on an emergency, as though a county judge gets the power to make laws in difficult times. I am aware that Article 4, Section 8 of the Texas Constitution actually mentions “disease threat” as a reason to call a special session to pass laws when necessary. I know of no such law giving county judges such powers, but I stand ready “to be learned” by Mr. Whitley of my error. I won’t hold my breath.

This is a commentary submitted and published with the author’s permission. If you wish to submit a commentary to Texas Scorecard, please submit your article to [email protected].