January 20, 2021 510 PM
BREWSTER COUNTY — The Gage lawsuit has been pushed back again. In a filing last week, lawyers for both Gage Hotel owner J.P. Bryan and Brewster County Judge Eleazar Cano asked for more time to file objections.
Objections in the case were due on Friday — but in their joint filing, lawyers asked for another week. Judge David B. Fannin, who’s overseeing the case, granted the request, giving lawyers until this Friday, January 22, to make their arguments.
Originally, these filings were due by the end of December. But in a previous joint filing from that month, lawyers for both sides also asked for more time.
Bryan’s lawyers cited the winter holidays and said they “would like to be able to meet with family and friends to the extent possible.” Cano’s lawyer, J. Eric Magee, also cited the holiday and said he wanted more time to build his case.
This legal fight, which The Big Bend Sentinel first reported on in April, concerns emergency measures that Brewster County officials took at the start of the coronavirus crisis. Like other officials throughout the tri-county, officials in Brewster County temporarily shuttered hotels and short-term rentals last year near the start of the pandemic. Those rules affected Bryan’s Gage Hotel in Marathon.
Bryan’s lawyers have argued those emergency closures violated his constitutional rights. In March, he sued several Brewster County officials, including Cano, the top county executive.
Bryan later dropped that case, instead suing Cano specifically. Cano, for his part, has argued he acted within his legal authority and was just trying to keep Brewster County residents safe.
This legal fight has exposed the fault lines over Texas’ handling of the coronavirus crisis, as The Big Bend Sentinel previously reported. The initial lawsuit didn’t name Brewster County Health Authority Dr. Ekta Escovar as a party, but it did cast aspersions on her, saying the medical doctor was acting “without scientific support” and “should not be regarded as an expert.”
Facing backlash from residents and businesses owners, Dr. Escovar resigned her position as health authority in September. Dr. Escovar had been working for free in the advisory role, and Brewster County has not had a county health authority since.
Governor Abbott, who also faced backlash from business interests, banned local officials from issuing health orders that were stricter than his own in May. That order overturned temporary bans on hotels and short-term rentals and prevented local officials from adopting new restrictions.
Coronavirus cases soon spiked in Brewster County, going from zero in mid-June to well over 100 by July 1. At press time, almost 900 Brewster County residents have fallen ill with coronavirus. At least eight county residents have died.
While the lawsuit shows no signs of ending soon and could well drag on past the end of the pandemic, last week’s filing provides a window on the arguments both sides intend to make.
Bryan’s lawyers are focusing on what they say are due process violations and argue that Cano also violated the commerce clause of the Constitution. They acknowledge that Governor Abbott also issued emergency orders but say that Cano’s orders were “based on a statute that is entirely separate and independent of the statute under the which [sic] Governor Abbott acted.” They also argue that Judge Fannin “did not properly consider the interstate commerce aspects of the Gage Hotel’s business” in his initial decision, since the Gage Hotel has been open to visitors from all across the country and world throughout most of the pandemic.
Magee, Cano’s lawyer, said he plans to argue that Bryan’s Fourth and Fourteenth Amendments were not violated. But in the filing last week, Magee is more circumspect, not offering details on the arguments he will make. Those will come in a later filing.
Instead, Magee said he would like more time to meet with Cano and discuss the case. But that will be “difficult to arrange,” he wrote, “due to the continued restrictions and concerns related to the COVID-19 outbreak.”
“Defendant’s request is not made for any delay,” Magee added in the filing, “but so that justice may be done.”