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As Shelter-in-Place Orders Expire, Big Bend Governments Grapple with Regulating Lodging Businesses

By Diana Nguyen and Carlos Morales

Businesses have begun to reopen in West Texas and across the state, but a lack of clarity on whether local governments can regulate lodging facilities caused confusion among officials, who this week have grappled with what legal authority local governments actually have on the issue.

On Monday, Gov. Greg Abbott revealed his latest series of executive orders to reopen the Texas economy. As of Friday, the Big Bend region’s stores, restaurants, and single movie theater could open up at 25% occupancy if the individual business owners so choose. 

The governor’s mandates supersede local orders that are more restrictive, but gave little direction on the reopening of hotels, motels, short-term rentals and RV parks. This left many Big Bend-area governments questioning whether or not they could regulate lodging businesses as shelter-in-place orders expired Thursday night.

In the tri-county area, local disaster declarations and shelter-in-place ordinances went into effect about a month ago in an attempt to curb the spread of the coronavirus to the Big Bend region. 

At the time, Brewster, Jeff Davis and Presidio Counties implemented ordinances that were stricter than the state’s orders. The counties prohibited travel outside of the tri-county area except for essential business, implemented curfews and, most notably, ordered hotels, motels, short-term rentals and RV parks to cease operations. The only exception for the last provision was lodging for essential workers or places that were a person's permanent residence.

By the end of the week, Brewster and Jeff Davis counties relaxed their restrictions on those businesses, and in these counties, lodging businesses are able to reopen their doors with no limitations on occupancy. The Gage Hotel in Marathon has already said it plans to open. Owners of the historic hotel sued Brewster County officialsover the emergency hotel closures.

As part of his plan, Gov. Abbott has said in counties with fewer than five confirmed cases of COVID-19, the county judge may apply for attestation which would allow businesses to open up at 50% occupancy, with approval from the Texas Department of State Health Services. 

Some area-counties may seek to apply, pending test results from the recent mobile units that came to Far West Texas.

In a statement to the Big Bend Gazette, Brewster County Judge Eleazar Cano said, “[Lodging businesses] can open for business since the governors prior or current orders did not shut down the hotels/motels and our local order cannot supersede the governor's order." 

Although Jeff Davis County officials were unsure of exactly how to interpret the governor’s orders, they felt there was little they could do to restrict hotels, motels and short-term rentals. Fearing potential litigation, Jeff Davis county commissioners on Thursday decided to allow these businesses to reopen to the capacity they’re comfortable with. 

“It does seem to me that right now this is on our hoteliers to create a safe environment for their guests and employees,” said Commissioner Todd Jagger. “The county’s out of it at this point.” 

Jagger said he originally felt the county needed to put the restrictions in place since there wasn’t a uniform approach or any statewide guidance from the governor. 

Presidio County says “wait a minute”

The confusion over whether or not counties had the authority to regulate who could make reservations at lodging businesses was most palpable in Presidio County. 

Leading up to the county’s emergency meeting on Thursday afternoon, Presidio County Attorney Rod Ponton sent a memorandum to the county judge and commissioners on April 29, writing that local entities are now forbidden from implementing measures stricter than the governor’s, including imposing limitations on lodging businesses.

Ponton added, “A spokesperson for the Governor’s office plainly confirmed this prohibition when asked on April 28 th whether local entities may continue to order hotels and motels closed…” and recommended letting local orders lapse.

At the meeting on Thursday, after an arduous discussion about the gray areas in Abbott’s orders, the court voted 3 to 2 to continue allowing only essential workers to stay at hotels, motels, short-term rentals and RV parks through May 15, against the advice of Ponton. Commissioners Brenda Bentley, Eloy Aranda, and Jose Cabezuela voted in favor, with Judge Cinderela Guevara and Commissioner Frank "Buddy" Knight voting against the measure.

“I’d rather have a thousand lawsuits for remaining closed than to feel like one person’s death was [because of] having opened...” said Commissioner Brenda Bentley, who made the motion.

The court's decision to limit lodging reservations to essential workers mirrors the amendments to Marfa's local disaster ordinance passed at an emergency city council meeting Wednesday night.

Presidio County Judge Cinderela Guevara told Marfa Public Radio and the Big Bend Sentinel she was unsure what enforcement of the restrictions would look like. 

Reopening moves forward, but concerns linger

Even before the first case of COVID-19 was confirmedThursday in south Brewster County, some area officials expressed reticence about Governor Abbott’s plan to reopen the economy leading up to shelter-in-place orders expiring.

In the past, Dr. Ekta Escovar, the head of the regional COVID-19 task force and health authority for Brewster County, has said that rural communities need to be on guard when restrictions in nearby metropolitan areas are eased.

“I am worried that we are at high risk of importing a case of COVID into our area,” Dr. Escovar told Marfa Public Radio.

“Tourism is a really big part of our economy, and there's no way that we can stop that,” said Escovar. “But that is definitely an area where we need to stay hyper-vigilant. We need to ensure that we're taking care of our tourists while still taking care of our community.”

In an area spanning some 12,000 square miles, there’s a single 25-bed hospital in Alpine along with a string of clinics throughout the region. There are two ventilators on hand for the whole region, and local healthcare authorities said they would reach a critical situation if even just four patients need ventilators.

Retiring Texas Sen. José Rodriguez has also pushed back on Abbott’s plans.

“I am very concerned about restrictions being loosened for the state, and especially the Big Bend region,” wrote Rodriguez in an email to Marfa Public Radio. “It's premature.”

“The lack of critical health care infrastructure coupled with the remoteness of the region could very quickly result in a health care crisis, straining resources and potentially costing lives,” said Rodriguez, whose district includes Presidio County.

Some businesses can open, but won’t for now

Although retail stores, restaurants, movie theaters, malls, museums, and libraries may open at an initial 25% capacity, many tri-county businesses and institutions are waiting until they feel they’ve established the proper protocols to keep their workers and patrons safe. Many of the Big Bend region’s primary tourist attractions have yet to set a reopening date.

During a recent emergency Marfa city council meeting, representatives with Chinati Foundation, Judd Foundation and Ballroom Marfa say they don’t have plans to reopen immediately. Some Marfa restaurants, including the popular barbeque stop Convenience West, are also forgoing opening their dining rooms this weekend and are instead sticking to takeaway.

And while state parks in the area have slowly begun reopening and lifting restrictions, the heavily-visited Big Bend National Park is still closed. Officials there say they don’t have a timeline for reopening but are watching state and local efforts and are drafting a plan for “careful phased reopening of the park.”

McDonald Observatory also remains closed to the public for the time being.