In Flood Emergencies, Must I Obey a Mandatory Evacuation Order?

By now, everyone has seen the news reports concerning the severe damage along the Texas coastline caused by Hurricane Harvey. At the Doan Law Firm, we too were impacted by the flooding in the Buffalo Bayou area but we are still at work serving our personal injury clients throughout the area. In today’s post, drowning accident lawyer Jimmy Doan will discuss a question that has been on the minds of many Texas coast residents: “Do I have to obey a mandatory evacuation order?”

In legal philosophy, the power to issue a mandatory evacuation order rises from the duty of the sovereign (the state or local government) to protect its citizens. In other words, the citizens pay taxes and other fees to the state and, in return, the state provides services such as police and fire departments that the citizens could not provide for themselves. If the sovereign foresees a clear and present danger to the health and safety of its residents, it has the legal authority to first issue a voluntary evacuation order. Should the situation deteriorate to the point that lives are endangered, the sovereign can then issue a mandatory evacuation order.

Before Hurricane Harvey slammed into the Corpus Christie – Houston – Port Arthur area, one of the largest mandatory evacuation orders to be issued in the United States (other than those issued during wartime) occurred earlier this year when California authorities order the evacuation of nearly 200,000 residents who were in danger if the Oroville Dam spillway should fail. The evacuations caused by Harvey will probably shatter that record.

Although an evacuation order may be “mandatory,” the citizens’ civil rights must be respected. This means that a citizen has the right to refuse removal from their homes, even if their lives are endangered. However, the police power of the sovereign may come into play if the state has passed legislation that makes it a crime (usually a misdemeanor) to disobey a lawful order from a police officer during a mandatory evacuation. Such laws are on the books in states such as California, Ohio, Maryland, and in Texas.

Under Texas law (Government Code §418.185), local authorities to have the power to "… compel persons who remain in the evacuated area to leave and authorize the use of reasonable force to remove persons from the area.” [Emphasis added] Since Texas law makes it a misdemeanor to resist an evacuation order, the police can legally arrest someone who refuses to leave. The police cannot, however, forcibly enter a residence or business unless there is a reasonable suspicion that the occupants are unable to respond due to illness or injury; or unless the risk of injury or death is immediate and obvious (e.g. a fire or a gas leak). Furthermore, any arrests must be made on an individual basis and there can no “blanket arrests” of residents in structures such entire apartment building to compel an evacuation.

In states without a specific evacuation order, the powers of the state are derived from the common law principle that the sovereign power of the state allows it to temporarily override the rights of the individual to achieve a greater good. Thus, the common law allows involuntary removal of a citizen so long as it is accomplished with as little invasion of the basic civil rights of an individual as is possible.

As a drowning accident attorney, Jimmy Doan is acutely aware that mandatory evacuations are sometimes necessary to save lives and he praises the long hours of arduous work that local and state authorities, and the thousands of civilian volunteers, have endured to rescue endangered Texas citizens. Jimmy also realizes that what may become the greatest natural disaster in our country’s history may be made worse in some areas by a lack of disaster planning and a well-coordinated response. In most cases, this is understandable due to the unprecedented amount of flood damage. However, lack of planning may contribute to unnecessary suffering and even deaths among those forced from their homes.

When a mandatory evacuation order is in effect, the sovereign (local or state government) must provide the basic necessities of life to the evacuees. This includes a safe shelter, food, and access to medical care. If these services are not available through either the local or state agencies, or not provided by volunteers working in coordination with a central emergency management agency, the sovereign may have breached its duty to protect its residents. There may also be cases where emergency response personnel may be overly enthusiastic in discharging their duties and infringe on the civil rights of flood victims. Hopefully there will be few such incidents but, should one suspect that they have been injured by the negligence of a rescuer it would be advisable to consult a personal injury and drowning accident lawyer to review any legal actions that may apply in your particular case.

In closing, drowning lawyer Jimmy Doan would again like to thank the emergency response workers of the Houston – Harris County area, and the thousands of volunteers who have freely given their time and financial resources to rescue endangered citizens, their pets, and farm livestock. To all who have helped the citizens of the Texas coast, Jimmy Doan and the staff of the Doan Law firm salute you and wish you nothing but success when your noble work is done.