Texas Attorney General Says Gunnison County’s Temporary Nonresident Ban Is Unconstitutional

Colorado Weather
Nathan Bilow / AP
A small snow blower machine and a snow shoveler work in the early morning to remove the snow from the sidewalk for pedestrians who will occupy the main street, Elk Avenue of Crested Butte, Colo. on Monday, Dec. 20, 2010.

Update: Gunnison County has responded to the Texas Attorney General, challenging his standing to challenge the county's policy, as well as his legal arguments against the order requiring second home owners to stay away. Read the county attorney's letter here.

The Texas attorney general has requested that a Colorado county undo part of a local health order that temporarily bans nonresidents because of COVID-19.

On April 3, Gunnison County issued an order that requires non-residents to leave the county, saying it’s a drain on resources and they pose a greater risk for contracting COVID-19. 

Texas Attorney General Ken Paxton says Gunnison County’s health order is unconstitutional and deprives nonresidents of important rights.

“It discriminates against nonresident homeowners by entirely prohibiting their ingress to the county and enjoyment of their real and personal property in the county. Resident homeowners, on the other hand, are under no such prohibition,” stated an April 9 letter from Paxton’s office emailed to Joni Reynolds, who directs the Gunnison County Department of Health and Human Services.   

Gunnison County’s order is an effort to slow the spread of the new coronavirus. Crested Butte is in the county, and the ski area and region attract many visitors and second homeowners. 

Reynolds did not immediately return a request for comment. Earlier today Arden Anderson, with the Gunnison Pandemic Command Center, told CPR’s Colorado Matters that the county has limited resources. 

“We're struggling with the high patient load that we've got to get through this on our own. So the Gunnison Valley is a wonderful place to visit, but we're asking folks to hold off on that until we get through this,” Anderson said.

The public health order also says visitors and second homeowners from lower altitudes are, “at a greater risk for complications from COVID-19 infection than residents, who are acclimatized to the high altitude environment of Gunnison County.” The Texas attorney general disputes that, though his office did not immediately respond to CPR News’ request for comment. 

Finally, the health order says reducing the population would ease the burden on health care facilities, food supplies and other essential services. There is some wiggle room: Nonresidents can ask the local health department for an exemption to be allowed to stay.

Gunnison’s order may be unique in the state, but the sentiment isn’t, particularly among Colorado’s resort communities. 

Pitkin County, which had a cluster of COVID-19 cases in Aspen, now requires nonresident homeowners and visitors returning to the area to self-quarantine for 14 days.

When Vail resorts shut down its ski areas, it asked seasonal employees living in Eagle County to return to primary residences in other places if they could. Summit County, home to Keystone, Breckenridge and other resorts, is where Colorado’s first known case of COVID-19 was found. Now it “strongly” encourages nonresidents to leave as soon as practicable. The county also restricts the sale of non-essential items in stores. 

“They are trying to do what’s best for everyone,” said Demoratic state Sen. Kerry Donovan, who grew up in Vail and represents a large swath of the mountain regions, including Gunnison.

She called the letter from the Texas Attorney General’s office “insensitive” given the constraints small communities face. She said it’s better for people to be in the place they normally live. 

“Go to your community of residence, where your health care provider probably resides, where you have a support system. To have an attorney general from another state push against some local advice seems very tone deaf in this current environment,” Donovan said.

On the television show Fox and Friends on Thursday morning Paxton said Texas has put its own restrictions on people coming in from certain states, requiring them to quarantine after they arrive. That’s meant for places like Louisiana, where there’s a high number of COVID-19 cases, but Texas has not blocked people from entering the state altogether. He said he feels that would be unconstitutional. Paxton then referenced the Gunnison County situation.

“We’ve seen it from Texans that have gone to other states like Colorado. There have been states that have tried to kick Texans out even though they have homes in other states. I don’t think that’s constitutional.” He added, “I think there are constitutional issues with targeting people and not giving them the same treatment you give your residents.”