Inside Track: Fort Bend County Judge fails in his 'cloak and dagger' attempt

On Dec. 1, Fort Bend County Commissioners Court had consulted the attorney in closed session on “Potential challenges to county-level orders enacted to reduce the spread of COVID-19.”

No action followed and the County Judge KP George said it was for information purposes.

Again, this week, Dec. 15, the commissioners court agenda had the following item for discussion in closed session: “Potential challenges to county-level orders enacted to reduce the spread of COVID-19; potential litigation concerning federal relief funds and vaccine distribution.”

There again was no action and George said it was for information purposes.

Why does the county judge adopt this cloak and dagger approach towards the Covid-19 pandemic?

This paper has already revealed the background in an earlier article “Inside Track : County Judges Lose Legal Battle Over Governor's Executive Powers.”

KP George, in his capacity as county judge, had filed an amicus curiae brief in a lawsuit before the Eighth Texas Court of Appeals in El Paso. The case was styled State of Texas, Pizza Properties, Inc., et al versus El Paso County, Texas and Ricardo A. Samaniego, in his official capacity as County Judge, El Paso County.

George intervened in the appeal as Fort Bend County Judge as the matter was not submitted formally to the Fort Bend Commissioners Court.

Conversely, if there is a need for the county to intervene in a future litigation, George can always bring it before the commissioners court and get them sign on to the litigation.

But, George wants the commissioners court give him the authority to file a response in a litigation representing other commissioners, without actually receiving their input.

One excuse for this egregious demand is that the county may have to respond quickly and there would be no time for calling a commissioners court meeting.

It is hard to imagine a litigation involving the county that can’t wait for 72 hours to respond. If there is a necessity for instant action, the county judge already has the authority, as the director of emergency services, to implement emergency actions.

And George has not hesitated to enact his own orders after declaring an emergency.

Early in March, when George declared a medical emergency and disaster declaration due to the pandemic, he had the authority to do so only for the first seven days and any extension had to be approved by a majority of the commissioners court. The commissioners court was split on party line and voted 3-2 to extend the disaster declaration further.

On December 8, Dr. Jacquelyn Minter, Fort Bend county Health and Human Services Director spoke about the “widespread and uncontrolled” spread of the virus and George, stating that the positivity rate was “surging in the wrong direction”, said the next day he would make some important announcement regarding the COVID-19 mitigation during the holidays.

The next day, George called a press conference and said: Due to the uncontrolled community spread, we are now in the red “High Risk” category moving up from the orange “moderate/significant” risk category. We are in a dangerous situation as our case counts soar and ICU beds fill up at unacceptable rates. This holiday season, let us get Texas Tough and fight COVID-19 by wearing our masks, getting tested, and cancel gatherings so we can protect ourselves and our loved ones.”

George reiterated that he was taking this step because it was “his job to save lives.”

George could have made the commissioners court aware of his exact order and got their consent. If not, he could have made the announcement in the same meeting, following Dr. Minter’s report.

It should be noted that George continued his attempt to get additional authority, after failing in the El Paso litigation. The court rejected El Paso County Judge’s claim that his regulatory order overrides the governor’s executive order, especially when there is a conflict between the two and that that the governor’s order prevails over the county judge’s order.

George seeks to arm himself with additional ammunition to fight the governor.

Take for example, his latest order upgrading the risk category to high risk level, Red. That there is no real data to support his order is another issue. But, more relevant is the fact that his Red alert level means or does nothing other than reiterating his public appeal to the community follow the guidelines.

The highest level of risk for community spread requires “Individuals to avoid dine-in eating and limit to drive-through, curbside takeout or delivery.” But the governor’s order allows dine-in eating at 25 percent capacity of a restaurant.

In the early days of the pandemic, he introduced the mask mandate which remained on paper for a couple of days before the governor enforced his own mask order, less punitive mask order.

In an attempt to aggrandize his power, George added the potential litigation over “federal relief funds and vaccine distribution.”

If there is any discrimination against Fort Bend in federal relief funds or vaccines, it will be legitimate for the county to challenge it legally, after exhausting other methods.

But to conjure up a problem over federal funds, which the county is already struggling to spend, is somewhat of a stretch.

The county health department is barely equipped to monitor the pandemic and collect real time data. It has contracted clinical services to provide indigent health care. Unlike the healthcare systems or major hospitals, the county has no expertise in handling or distributing the vaccine, let alone assess the demand for it.

Elected officials are prone to making big political statements, and often justifiably so, but one should not sound like too big to one’s britches.

Finally, why there was no action on George’s demand? He needs at least two of the four commissioners to support him. It can be surmised that he just had one commissioner supporting him or none at all.

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John Torgersen[email protected]
DEC 19, 2020  •  Trying to raise his profile for a run for higher office, at the expense of Republican Commissioners, instead of focusing on fighting the COVID battle.