We have withdrawn our disaster declaration because of the rain we received last night and this morning and the prediction for more rain and lower temperatures.

John, that is certainly the position that some are taking. Another is that in Executive Order RP-32, the governor gives to county judges the same authority and powers in their counties when they declare a disaster that he has when he declares a statewide disaster. A 1980 AG opinion (I don't recall the cite offhand) construed a similar Executive Order issued by Clements, and came to that conclusion. Therefore, if Perry has the authority to ban the sale or use of combustibles, including fireworks, when he declares a statewide disaster, a County Judge has the authority to do so in the event of a declared local disaster.

Hopefully some of the smarter lawyers from other counties that have enacted bans will chime in with their thoughts.

Russell,

I was always under the impression that a County Judge had the same authority as the Governor when declaring a local disaster, but I couldn't remember where I got that idea from.

I'll try to find that AG opinion. I haven't tracked down any case law dealing with this issue.


John

Here is some of the relevant language from RP32:

"The mayor of each municipal corporation and the county judge of each county in the state shall be designated as the Emergency Management Director for each such political subdivision in accordance with Sections 418.102, 418.103, and 418.105 of the Act,.... These mayors and county judges shall serve as the Governor's designated agents in the administration and supervision of the Act, and may exercise the powers, on an appropriate local scale, granted the Governor therein."

"This executive order supersedes all previous executive orders on emergency management...and shall remain in effect until modified, amended, rescinded, or superseded by me or by a succeeding Governor."

And the plot thickens....

Now, does RP32 grant the local representative (in our case under section 418.102) the governor's power only under a statewide declaration of disaster, or does it extend to a local declaration as well?

http://www.oag.state.tx.us/opinions/op46white/mw-140.htm

Link to the AG opinion that Russell referenced.

It appears that RP-32 used some of the language from this opinion. Therefore, it would seem that RP-32 would allow the local representative to exercise the same powers as the governor under a locally declared disaster.

To facilitate discussion and reduce confusion, the five existing threads on fireworks bans have been combined and reduced to two -- this one, and Russell's thread on the federal lawsuit. Please add future posts accordingly.

Our County Judge issued declaration of disaster this morning banning the use of fireworks. We had 2 fires last week that burned over 3,000 acres and 2 fires this morning that are still going.

We'll see how this goes.

John L. Pool

Moments ago, we won a TRO hearing. A lawyer drove in this afternoon from San Antonio, filed his case, and got it heard. We got about 10 minutes' notice once it was filed before the hearing, though we had a few hours' warning that they were en route.

It has been a hectic afternoon.

Thank you for your help.

Ann Diamond
Deputy Chief/Civil Division
Assistant Criminal District Attorney
817.884.1233

Congrats, I'm glad ya'll had a judge that would follow the law.

Could someone please fax me a copy of 49 CFR 173.100(r)(2)? My fax is (806) 669-3048. Thanks in advance!

Joshua Seabourn
County Attorney
Gray County, Texas

As I understand it:

Federal suit in Western District, TRO denied.

TRO's granted in state court in: Midland, Dawson, Andrews counties.

TRO's denied in state court in: Tarrant and Collin counties.

Any others, either way or pending?

A.D.

Ann, last December a TRO was denied in Comal county. So I guess that puts the good guys up by one.

After getting poured out in court earlier this week, John Pool and Andrews Co. were able to procure from the governor a declaration of emergency for their county earlier today that will enable them to regulate the use of the fireworks at issue before the holiday. So count that as a notch under the "win" column, too!

Congratulations, John, for leaving no stone unturned!

Yes, and I need to thank Ann Diamond, Scott Brumley, Shannon Edmonds, and Rob Kepple for allowing me to pepper you with questions over the last few days.

Also, a big thanks to the Governor's office for working with me to obtain the disaster declaration for Andrews County.

Keep in mind, it was the SAME judge that granted TRO's in Dawson, Midland, and Andrews county. (Retired visiting Judge Weldon Kirk out of Sweetwater) I respectfully disagree with Judge Kirk's interpretation of the law.

John L. Pool

We may have lost the battle, but perhaps we won the war. Apparently the media attention over our battle has convinced the public that it is too dangerous to use firworks. Our fire marshal estimates that use and sale is down over 50%. Since a certain percentage of the public is going to disregard any fireworks ban anyway, we have probably been about as successful as we would have been if our usage ban had been upheld.

In case anyone is still interested in firworks, Comal County prevailed on their summary judgment motion in the lawsuit filed against them in December.

http://www.county.org/resources/news/dynContView.asp?cid=656

I figure next year will be as dry as this - - so have made a copy for reference! Thanks!

Does anyone actually have a copy of this that they wouldn't mind sending me?