Plaintiff’s First Amended 

Complaint for Declaratory

Relief

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UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF TEXAS

PECOS DIVISION

J. P. Bryan, §

§

Plaintiff, §

§

v. § Case No. 4:20-cv-00025-DC-DF 

§

County Judge Eleazar §

R. Cano, §

§

Defendant. §

PLAINTIFF’S FIRST AMENDED ORIGINAL

COMPLAINT FOR DECLARATORY RELIEF AND DAMAGES

J. P. Bryan, Plaintiff files this First Amended Original Complaint for

declaratory relief and damages within 21 days after service upon County Judge 

Eleazar R. Cano, Defendant, as follows:

INTRODUCTION

1. On March 17, 2020, Defendant County Judge Eleazar R. Cano signed 

and promulgated a Declaration of Local Disaster under Tex. Gov’t Code § 418.108. 

As of the date of the filing of this Amended Complaint, the Declaration is still in full 

force and effect.

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2. On March 20, 2020, Defendant County Judge, by amendment to the 

Declaration, ordered all hotels, motels and short-term rentals in Brewster County, 

Texas to close and vacate their guests through April 2, 2020.

3. Defendant County Judge’s order closing all hotels, motels and shortterm rentals in Brewster County was extended and modified by various new orders 

such that all hotels, motels and short-term rentals must remain closed through April 

30, 2020, subject to extension, but may admit guests who fall into certain 

employment categories as fully set out in an Order Extending Amended Order that 

was signed on April 7, 2020. 

4. Defendant County Judge’s Order Extending Amended Order closing all 

hotels, motels and short-term rentals in Brewster County except for guests who fall 

into certain employment categories, expired at 11:59 p.m. on April 30, 2020 and was 

not renewed. Hotels, motels and short term rentals in Brewster County opened on 

May 1, 2020 subject to applicable restrictions set forth in Executive Order GA-18 

issued by Governor Gregg Abbott on April 27, 2020 and subject to Defendant 

County Judge’s warning that he reserves the right to issue “any necessary orders to 

prevent any threat to the health and safety of the citizens of Brewster County.”

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5. Defendant County Judge’s orders closing hotels, motels and short-term

rentals were signed pursuant to the authority purportedly granted to him under Tex. 

Gov’t Code §418.108(g).

6. Plaintiff J. P. Bryan is a resident of Brewster County and the owner of 

the Gage Hotel in Marathon, Brewster County, Texas. 

7. Defendant County Judge’s Declaration of Local Disaster and orders 

closing hotels, motels and short term rentals deprived Plaintiff of his rights to equal 

protection and due process under the Fourth, Fifth and Fourteenth Amendments to 

the U.S. Constitution as well as the Commerce Clause in the United States 

Constitution and violated his civil rights under 42 U.S. C. §1983.

8. Accordingly, Plaintiff requests a declaratory judgment that Defendant 

County Judge’s Declaration of Local Disaster under Tex. Gov’t Code §418.108(a) 

and his orders closing all hotels, motels and short term rentals in Brewster County 

under Tex. Gov’t Code §418.108(g) constituted an unconstitutional exercise of his 

powers and a violation of Plaintiff’s civil rights under 42 U.S.C. §1983 and entitle 

Plaintiff to recover damages and attorneys’ fees.

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JURISDICTION, VENUE

AND GOVERNMENTAL IMMUNITY

9. This Court has subject matter jurisdiction over this case pursuant to 28 

U.S.C. § 1331, as this action arises under the Fourth, Fifth and Fourteenth 

Amendments to the United States Constitution and the Commerce Clause in the 

United States Constitution; under 28 U.S.C. § 1343(a)(3), in that it is brought to 

redress deprivations, under color of state law, of rights, privileges, and immunities 

secured by the United States Constitution; under 42 U.S.C. § 1983, which provides 

a cause of action for the protection of civil and constitutional rights; under 28 U.S.C. 

§ 2201, to secure declaratory relief; and under 42 U.S.C. §1988 for an award of 

damages and attorneys’ fees. 

10. Venue is proper because Plaintiff’s claims arose in Brewster County, 

Texas which is within the Pecos Division of the United States District Court for the 

Western District of Texas. 

11. Defendant County Judge is not entitled to governmental or official 

immunity because his acts are unconstitutional and ultra vires.

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PARTIES

12. Plaintiff J. P. Bryan is a citizen of the State of Texas, is a resident of 

Brewster County, Texas and is the owner of record of the Gage Hotel in Marathon, 

Texas. 

13. Defendant Eleazar R. Cano is the County Judge of Brewster County, 

Texas and is being sued in that capacity. He was served on April 16, 2020 but has 

not yet answered.

FACTS

14. Plaintiff has owned and operated the Gage Hotel in Marathon, 

Brewster County, Texas since 1978. The Gage Hotel was designed in 1926 by 

famed El Paso Architect, Henry C. Trost and is recognized as an historic 

structure by the award of an Official Historic Medallion by the Texas Historical 

Commission. The Gage Hotel has been the hotel of choice for thousands of 

visitors from Texas and other states who have used it as a base to explore the 

Big Bend and for celebrations and gatherings of all types. The Gage Hotel has 

been a successful business operation for many years and enjoys an enviable 

reputation as an oasis in a remote part of West Texas. The Gage Hotel has been 

the principal source of income for Marathon for many years. Additionally, the 

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Gage Hotel, as well as other Brewster County hotels and short-term rentals in 

Alpine, Terlingua and Lajitas are major income generators for Brewster County, 

Texas. Plaintiff was forced to close the Gage Hotel on March 23, 2020 due to 

unconstitutional actions taken by Defendant County Judge as described below. 

Prior to being forced to close, the Gage Hotel had reservations that placed it on 

a projected trajectory of earning its highest net profit ever. After being notified 

that the Gage Hotel was ordered to close on March 23, 2020, Plaintiff’s General 

Manager notified guests with reservations for periods after March 23, 2020 of 

the closure. Plaintiff’s General Manager is now in the process of notifying 

guests who had reservations for periods beginning on May 1, 2020 that the Gage 

Hotel will again be open on and after that date subject to Defendant County 

Judge’s warning that he reserves the right to issue “any necessary orders to 

prevent any threat to the health and safety of the citizens of Brewster County.”

Most of the guests who made reservations for periods on and after March 23, 

2020 and before May 1, 2020 will in all probability not make new reservations

for the remainder of this year. Plaintiff has had no room income from renting 

hotel rooms to guests between March 23, 2020 and May 1, 2020 but has to incur 

fixed costs to maintain the Gage Hotel property in good condition in order to 

preserve its value and future as a hotel property. Plaintiff estimates that his net 

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profit for 2020 will be reduced in excess of $75,000.00 and that the decline in 

net profit has been proximately caused by Defendant County Judge’s actions. 

15. On March 13, 2020, Governor Greg Abbott issued a Proclamation 

declaring that COVID-19 poses an imminent threat of disaster and declared a 

state of disaster for all counties in Texas. A copy of the Proclamation is attached 

as Exhibit A.

16. On March 17, 2020, Defendant County Judge signed and 

promulgated a Declaration of Local State of Disaster due to Public Health 

Emergency pursuant to Texas Government Code, Chapter 418. A copy of the 

Declaration is attached as Exhibit B. This Declaration expired and was 

terminated by operation of law on March 24, 2020 because it was never 

approved by the Brewster County Commissioners Court as required by Tex. 

Gov’t Code §418.108(b). On March 17, 2020, there were no reported cases of 

COVID-19 in Brewster County, Jeff Davis County, Terrell County, Presidio 

County, Reeves County, Culberson County and Hudspeth County on the Texas 

Health and Human Services website that tracks cases by county. 

17. On March 19, 2020, Governor Greg Abbott issued Executive Order 

No. GA-08, which directed Texans to avoid eating or drinking at bars, 

restaurants, and food courts, or visiting gyms or massage parlors. Executive 

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Order No. GA-08 did not order or direct that hotels be closed. A copy of the 

Executive Order GA-08 is attached as Exhibit C.

18. On March 20, 2020, County Judge Cano amended the Declaration 

of March 17, 2020. The amendment ordered all hotels/motels and short-term 

rentals close and vacate their guests beginning on March 23, 2020 through April 

2, 2020 except for guests who use a rental unit as their primary residence. On 

March 20, 2020, there were no reported cases of COVID-19 in Brewster County, 

Jeff Davis County, Terrell County, Presidio County, Reeves County, Culberson 

County and Hudspeth County on the Texas Health and Human Services website 

that tracks cases by county. A copy of the amendment is attached as Exhibit D.

19. On March 23, 2020, County Judge Cano again amended the 

Declaration of March 17, 2020. The amendment ordered all hotels/motels and 

short-term rentals close and vacate their guests through April 2, 2020 except for 

guests who use a rental unit as their primary residence and except for guests who 

were (a) active duty military, law enforcement and national guard reserve, (b) 

emergency service personnel to support city, county, state, Sul Ross State 

University and school district operations or customers and (c) healthcare 

professionals and employees. On March 23, 2020, there were no reported cases 

of COVID-19 in Brewster County, Jeff Davis County, Terrell County, Presidio 

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County, Reeves County, Culberson County and Hudspeth County on the Texas 

Health and Human Services website that tracks cases by county. A copy of the 

Amendment is attached as Exhibit E.

20. On March 25, 2020, at an Emergency Meeting of the Brewster 

County Commissioners Court, Defendant County Judge signed and promulgated 

a new Declaration of Local State of Disaster Due to Public Health Emergency, 

a copy of which is attached as Exhibit F. This new Declaration was targeted at 

the “imminent threat of spread of from outside the County through visitors, 

including but not limited to, recreational visitors/travelers;”. The new 

Declaration was signed without hearing any testimony or receiving any 

documentary evidence that there was an imminent threat that COVID-19 would 

spread into Brewster County through visitors, including but not limited to, 

recreational visitors/travelers. After the Declaration of March 25, 2020 was 

signed by Defendant County Judge, the Commissioners present at the meeting 

approved the Declaration. The Declaration was promulgated by placing it on 

the County’s website. On March 25, 2020, there were no reported cases of 

COVID-19 in Brewster County, Jeff Davis County, Terrell County, Presidio 

County, Reeves County, Culberson County and Hudspeth County on the Texas 

Health and Human Services website that tracks cases by county. There was one 

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reported case in Pecos County.

21. After the new Declaration was signed and approved by the 

Commissioners Court, County Judge Cano then signed an Order, dated March 

25, 2020, a copy of which is attached as Exhibit G. The Order is nominally 

divided into Order No. 1 and Order No. 2. Order No. 1 is entitled “Hotels, Motels 

and Short-Term Rentals” and orders all hotels, motels and short term rental to 

close and vacate their guests through Thursday, April 2, 2020 except for (a) 

guests that have a primary residence in the hotel, motel or short term rental or 

customers (b) who are active duty military, law enforcement and national guard 

reserve, or (c) who are emergency service personnel to support city, county, 

state, Sul Ross State University and school district operations or customers or 

who are (d) healthcare professionals and employees. By its terms, the Order 

remained in effect until April 2, 2020 unless terminated or modified by a 

subsequent Order. The Order was promulgated by being placed on the Brewster 

County website on March 25, 2020.

22. On March 31, 2020, Governor Greg Abbott signed Executive Order 

GA-14, a copy of which is attached as Exhibit H. Executive Order GA-14 

expressly superseded Executive Order GA-08. Executive Order GA-14 did not 

mandate the closure of hotels or ban travel between counties or within counties. 

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Executive Order No. GA-14 also did not prohibit people from visiting parks, 

hunting or fishing or engaging in physical activity like jogging or bicycling so 

long as in person contact with persons in the same household were minimized. 

This Order became effective on April 2, 2020.

23. On April 1, 2020, Defendant County Judge signed an Amended 

Order, a copy of which is attached as Exhibit I. The Amended Order is identical 

to the Order signed on March 25, 2020 closing hotels except that it continues in 

effect until April 9, 2020 unless terminated or modified by a subsequent Order. 

The Amended Order was promulgated by being placed on the Brewster County 

website on April 1, 2020. On April 1, 2020, there were no reported cases of 

COVID-19 in Brewster County, Jeff Davis County, Terrell County, Presidio 

County, Reeves County, Culberson County and Hudspeth County on the Texas 

Health and Human Services website that tracks cases by county. There was one 

reported case in Pecos County.

24. On April 7, 2020, Defendant County Judge signed an Order 

Extending Amended Order, a copy of which is attached as Exhibit J. The Order 

Extending Amended Order is identical to the Order signed on April 1, 2020 

except that it continues in effect until April 30, 2020 unless terminated or 

modified by a subsequent Order. The Amended Order was promulgated by being 

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placed on the Brewster County website on April 7, 2020. On April 7, 2020, 

there were no reported cases of COVID-19 in Brewster County, Jeff Davis 

County, Terrell County, Presidio County, Reeves County, Culberson County 

and Hudspeth County on the Texas Health and Human Services website that 

tracks cases by county. There was one reported case in Pecos County.

25. On April 7, 2020, Defendant County Judge also signed an Order 

Extending Supplemental Order, a copy of which is attached as Exhibit K. The 

Order Extending Supplemental Order contains a paragraph entitled Order No. 5. 

Travel. This Order bans all travel, whether by foot, car, bicycle, scooter, 

motorcycle, automobile or public transportation in Brewster except for purposes 

of Essential Activities or to perform or obtain services from an Essential 

Business, Essential Governmental Function or Critical Infrastructure and 

continues in effect until April 30, 2020 unless terminated or modified by a 

subsequent Order. The Order Extending Supplemental Order was promulgated 

by being placed on the Brewster County website on April 7, 2020. 

26. On April 27, 2020, Governor Gregg Abbott signed Executive Order 

GA-18, a copy of which is attached as Exhibit L Executive Order GA- expressly 

superseded Executive Order GA-16 but does not supersede Executive Orders 

Nos. GA-10,11,12, 13, 15, or 17. Executive Order GA-18 did not mandate the 

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closure of hotels or ban travel between counties or within counties. Executive 

Order No. GA-18 permitted certain businesses to open on a restricted basis.

27. On April 30, 2020, Defendant County Judge issued a News Release, 

a copy of which is attached as Exhibit M. In the News Release, he announced 

that all Brewster County Executive Orders would expire at 11:59 p.m. on April 

30, 2020 subject to further orders under the Declaration if he deemed it necessary

to do so to protect the health and safety of Brewster County citizens.

28. On April 25, 2020, Defendant County Judge issued a second News 

Release, a copy of which is attached as Exhibit N. In the News Release, he 

announced Brewster County had been notified that one person has been tested 

positive for COVID 19.

COUNT I

VIOLATION OF DUE PROCESS UNDER THE FOURTEENTH 

AMENDMENT TO THE UNITED STATES CONSTITUTION

(42 U.S.C. § 1983)

29. Plaintiff re-alleges and incorporates by reference every allegation set 

forth in Paragraphs 14 through 28 as though fully set forth herein. In the new

Declaration signed by Defendant County Judge on March 25, 2020, he made the 

following findings to support his Order closing hotels, motels and short-term rentals:

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WHEREAS, Brewster County, Texas is taking extraordinary 

measures to prevent the spread of the this potentially devasting 

disease within our community and the imminent threat of

spread from outside the County through visitors, including but 

not limited to recreational visitors/travelers; and

WHEREAS, said state of disaster requires that certain 

emergency protective measures taken pursuant to the Texas 

Disaster Act of 1975 relating to Emergency Management and 

Public Health, pursuant to Chapter 418 of the Texas 

Government Code.

30. In order for Defendant to lawfully issue a Declaration of a Local State 

of Disaster and issue orders, he must be able to reasonably conclude or find that a 

Disaster as defined in Tex. Gov’t Code §418. 004(1) exists in Brewster County. In 

Tex. Gov’t Code §418.004(1) a Disaster means:

the occurrence or imminent threat of widespread or severe 

damage, injury, or loss of life or property resulting from any 

natural or man-made cause, including fire, flood, earthquake, 

wind, storm, wave action, oil spill or other water 

contamination, volcanic activity, epidemic, air contamination, 

blight, drought, infestation, explosion, riot, hostile military or 

paramilitary action, extreme heat, other public calamity 

requiring emergency action, or energy emergency.

Defendant County Judge declared that a Disaster existed in Brewster County without 

any evidence to support that declaration. On March 25, 2010, there was no evidence 

that COVID-19 virus had infected any residents of Brewster County and there was 

no evidence of an imminent threat that COVID-19 would infect residents of 

Brewster County, Texas. There was also no evidence that visitors to Brewster 

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County constitute an imminent threat to the residents of Brewster County because 

they would spread COVID-19. There was also no evidence that the persons 

described in the Order Extending Amended Order who, based on their occupations,

were allowed to stay in hotels in Brewster County, would not constitute a threat to 

the residents of Brewster County that would be no different from visitors who were

not in the specified occupations. The findings were made without receiving or 

considering any credible expert testimony that there was an imminent threat that 

COVID-19 would spread into Brewster County. On April 30, 2020, for the first 

time, one COVID-19 case was reported in Brewster County, Texas.

31. Defendant County Judge’s original and new Declarations signed on 

March 17, 2020 and March 25, 2020 respectively, deprived Plaintiff of his right 

to due process under the Fourteenth Amendment because they were signed and 

promulgated with no evidence that a local disaster had occurred in Brewster 

County and no evidence that a local disaster was imminently threatened. 

32. Plaintiff requests that the Court declare null and void Defendant County 

Judge’s original Declaration signed on March 17, 2020 and his new Declaration 

signed on March 25, 2020 because they deprived Plaintiff of his right to Due Process 

under the Fourteenth Amendment to the United States Constitution.

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COUNT II

VIOLATION OF EQUAL PROTECTION UNDER THE FOURTEENTH 

AMENDMENT TO THE UNITED STATES CONSTITUTION

(42 U.S.C. § 1983)

33. Plaintiff re-alleges and incorporates by reference every allegation set 

forth in Paragraphs 14 through 28 as though fully set forth herein. Under the Equal 

Protection Clause of the Fourteenth Amendment to the United States Constitution, 

“no State shall . . . deny to any person within its jurisdiction the equal protection of 

the laws. U.S. Const. Amend. XIV, §1. Plaintiff is a person who has been 

intentionally treated differently by Defendant County Judge from other persons who 

are similarly situated when there is no rational basis for the difference in treatment. 

Specifically, under the Order signed on March 20, 2020 and other orders ending 

with the Order Extending Amended Order signed on April 7, 2020, Plaintiff could 

not rent hotel rooms to guests other than (1) guests that have a primary residence in 

his hotel, or (2) guests who are active duty military, law enforcement and national 

guard reserve, or (3) guests who are emergency service personnel to support city, 

county, state, Sul Ross State University and school district operations or (4) guests 

who are healthcare professionals and employees. The Order signed on March 20, 

2020 and the Order Extending Amended Order signed on April 7, 2020 should be 

reviewed under a strict scrutiny standard since they target visitors from outside 

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Brewster County and tramples on Plaintiff’s constitutional rights. There is no 

evidence that the Order of March 20, 2020 or the Order Extending Amended Order 

of April 7, 2020 serve a compelling state interest. The four categories of guests who 

were allowed to stay in Brewster County Hotels were just as likely to be infected 

with COVID-19 as other visitors who were prohibited from staying in hotels. 

Additionally, the Order Extending Amended Order does not prohibit other 

businesses in Brewster County that are similarly situated with respect to Plaintiff 

from selling goods and services to all customers including visitors and travelers from 

outside Brewster County. This invidious classification is made more obvious by the 

fact that guests employed as described in the Order Extending Amended Order who 

were allowed to rent rooms from Plaintiff could have been visitors or travelers to 

Brewster County and be just as likely to spread COVID-19 as visitors who were not 

so employed. The Order Extending Amended Order did not even require that the 

allowed employee classes of active military, law enforcement, national reserve, 

healthcare professionals and employees be in Brewster County for any purpose 

related to COVID-19. Persons employed as described in the Order Extending 

Amended Order could rent a room at a hotel just by verifying their employment 

classification and are in no different position than visitors and travelers who wanted

to rent rooms but are not so employed.

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34. Defendant County Judge’s Order dated March 20, 2020 and ending 

with his Order Extending Amended Order signed on April 7, 2020 deprive Plaintiff

of his right to equal protection under the Fourteenth Amendment to the United States 

Constitution because they failed to serve a compelling state interest to overcome 

strict scrutiny and should be declared null and void.

COUNT III

VIOLATION OF DUE PROCESS UNDER THE FOURTEENTH 

AMENDMENT TO THE UNITED STATES CONSTITUTION 

(42 U.S.C. § 1983)

35. Plaintiff re-alleges and incorporates by reference every allegation set 

forth in Paragraphs 14 through 28 as though fully set forth herein. Plaintiff has a 

fundamental right under the Fourteenth Amendment to the United States 

Constitution to own and operate a hotel in Marathon, Texas so long as he complies 

with lawful local regulations over businesses. Between March 23, 2020 and April 

30, 2020 Plaintiff was complying with all lawful regulations of Brewster County 

applicable to hotels.

36. Defendant County Judge’s Order dated March 20, 2020 and ending 

with his Order Extending Amended Order dated April 7, 2020 closing all hotels, 

motels and short-term rentals also deprived Plaintiff’s right to due process because 

closing hotels, motels and short-term rentals except to certain classes of employed 

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persons in order to prevent the spread of COVID-19 is unconstitutionally overbroad

and overreaching instead of being narrowly tailored to serve a compelling state 

interest. 

37. There is now only one reported case of COVID-19 in Brewster County

and that report was made on April 30, 2020. When he closed all hotels, motels and 

short-term rentals, Defendant County Judge had no factual basis from which to 

conclude that this action serves a compelling state interest of Brewster County. 

Governor Greg Abbott has not ordered the closure of hotels. Defendant County 

Judge’s Order of March 20, 2020 and his Order Extending Amended Order of April 

7, 2020 should have been narrowly tailored to only require hotels, motels and shortterm rentals to comply with any applicable requirements in executive orders issued

by Governor Abbott. 

38. Defendant County Judge’s Order dated March 20, 2020 and ending 

with his Order Extending Amended Order signed on April 7, 2020 deprived Plaintiff

of his right to due process under the Fourteenth Amendment to the United States 

Constitution, 0failed to serve a compelling governmental interest sufficient to 

overcome strict scrutiny and should be declared null and void.

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COUNT IV

UNREASONABLE SEIZURE IN VIOLATION OF THE 

FOURTH AND FOURTEENTH AMENDMENTS 

TO THE UNITED STATES CONSTITUTION

(42 U.S.C. § 1983)

39. Plaintiff re-alleges and incorporates by reference every allegation set 

forth in Paragraphs 14 through 28 as though fully set forth herein. Defendant County 

Judge’s Order dated March 20, 2020 and ending with his Order Extending Amended 

Order signed on April 7, 2020 violated the Fourth and Fifteenth Amendments in that 

they were a meaningful interference with Plaintiff’s possessory interests in his 

property, which is unreasonable because the interference is unjustified by law or, if 

justified, was not being compensated. 

40. Defendant County Judge’s Order dated March 20, 2020 and ending 

with his Order Extending Amended Order signed on April 7, 2020 created a 

meaningful interference with Plaintiff’s possessory interest in the Gage Hotel by

prohibiting him from renting guest rooms except to persons who were in certain 

employment classifications. 

41. Additionally, the Defendant County Judge’s Order dated March 20, 

2020 and ending with his Order Extending Amended Order signed on April 7, 2020 

created a meaningful interference with the Plaintiff’s possessory interest in the Gage 

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Hotel by prohibiting him from staying in his hotel unless it was his primary resident, 

which it is not.

42. Neither of the above interferences with Plaintiff’s property interests 

have been compensated.

43. These interferences with Plaintiff’s property rights were not reasonable.

44. Accordingly, the Defendant County Judge’s Order dated March 20, 

2020 and ending with his Order Extending Amended Order signed on April 7, 2020

constituted an unreasonable seizure in violation of the Fourth and Fourteenth 

Amendments.

45. Defendant County Judge’s Defendant County Judge’s Order dated 

March 20, 2020 and ending with his Order Extending Amended Order signed on 

April 7, 2020 deprived Plaintiff of his right to be protected from unreasonable 

seizure under the Fourth and Fourteenth Amendments to the United States 

Constitution, failed to serve a compelling governmental interest sufficient to 

overcome strict scrutiny and should be declared null and void.

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COUNT V

VIOLATION OF THE PRIVELGES AND IMMUNITIES 

CLAUSE OF THE FOURTEENTH AMENDMENT TO THE

UNITED STATES CONSTITUTION 

(42 U.S.C. § 1983)

46. Plaintiff re-alleges and incorporates by reference every allegation set 

forth in Paragraphs 14 through 28 as though fully set forth herein. Defendant County 

Judge’s Order No. 5 signed on April 7, 2020 banning all travel encompasses all 

travel into and all travel out of Brewster County by all persons, whether or not such 

persons are residents of Brewster Count, with the exception of persons traveling for 

Essential Activities, Essential Business, Essential Governmental Functions or 

Critical Infrastructure. 

47. The travel ban was all encompassing and directly prevented persons 

who were not infected with COVID 19 or who had recovered from staying at 

Plaintiff’s hotel. The travel ban was unconstitutionally overbroad and did not serve 

any compelling state interest sufficient to overcome strict scrutiny. The travel ban

was unconstitutional under the privileges and immunities clause of the Fourteenth

Amendment to the United States Constitution and should be declared null and void.

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COUNT VI

VIOLATION OF THE COMMERCE CLAUSE OF ARTICLE I,

SECTION 8 OF THE UNITED STATES CONSTITUTION 

(42 U.S.C. §. 1983)

48. Plaintiff re-alleges and incorporates by reference every allegation set 

forth in Paragraphs 14 through 28 as though fully set forth herein. Defendant County 

Judge’s Defendant County Judge’s Order dated March 20, 2020 and ending with his 

Order Extending Amended Order signed on April 7, 2020, prohibited Plaintiff from 

renting rooms to visitors from outside of Brewster County other than the four 

categories of guests who are described in the Order Extending Amended Order.

49. Article I, Sec. 8 of the United States Constitution (“Commerce Clause”) 

confers “rights, privileges, or immunities” within the meaning of Sec. 1983.

50. Plaintiff is a member of the protected class the Commerce Clause was 

intended to benefit.

51. The prohibitions in the Defendant County Judge’s Order dated March 

20, 2020 and ending with his Order Extending Amended Order signed on April 7, 

2020 constituted an interference with Plaintiff’s trade, were an undue burden on 

interstate commerce, were unconstitutional, and should be declared null and void.

52. Defendant County Judge’s Order signed on March 20, 2020 and ending 

with his Order Extending Amended Order signed on April 7, 2020 violated the 

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Plaintiff’s First Amended 

Complaint for Declaratory

Relief

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Commerce Clause, Article 1, Section 8. of the United States Constitution, failed to 

serve a compelling governmental interest sufficient to overcome strict scrutiny and 

should be declared null and void.

DECLARATORY RELIEF

53. Plaintiff hereby re-alleges and incorporates by reference every

allegation set forth in Paragraphs 14 through 28 as though fully set forth herein.

54. An actual and substantial controversy exists between Plaintiff and

Defendant County Judge as to their legal rights and duties with respect to whether 

the original and new Declarations of Local State of Disaster and the various Orders 

closing hotels, motels and short-term rentals deprived Plaintiff of his rights under 

the Fourth, Fifth and Fourteenth Amendments to the United States Constitution and 

the Commerce Clause of Article I, Section 8, of the United States Constitution, and 

proximately caused him to suffer damages.

55. This case is presently justiciable because the Declaration of Local State 

of Disaster is still in effect and the Orders closing hotels, motels and short-term 

rentals deprived Plaintiff of his rights under the Fourth, Fifth and Fourteenth 

Amendments to the United States Constitution and proximately caused him to suffer 

damages.

56. Declaratory relief is therefore appropriate to resolve this controversy.

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Plaintiff’s First Amended 

Complaint for Declaratory

Relief

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DAMAGES

57. Defendant County Judge’s deprivation of Plaintiff’s constitutional 

rights as aforesaid has proximately caused Plaintiff to suffer damages in excess of 

$75,000.00 exclusive of costs and attorneys’ fees.

ATTORNEY’S FEES

58. Plaintiff requests that, after compliance with FRCP 54, the court 

award him his costs and reasonable attorneys’ fees.

PRAYER

59. Plaintiff prays for judgment against Defendant County Judge Eleazar 

R. Cano and that the Court: 

(1) declare that Defendant County Judge’s original and new Declarations

of Local State of Disaster null and void because they were unconstitutional under 

the due process clause of the Fourteenth Amendment to the United States 

Constitution; and, 

(2) declare that all of Defendant County Judge’s orders closing hotels, 

motels and short-term rentals in Brewster County null and void because they 

were unconstitutional under the due process and equal protection clauses of the

Fourteenth Amendment, Fourth Amendment, and Fifth Amendment to the 

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Plaintiff’s First Amended 

Complaint for Declaratory

Relief

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United States Constitution and the Commerce Clause of the United States 

Constitution; and, 

(3) declare that Defendant County Judge’s Order No. 5 prohibiting travel 

into and out Brewster County null and void because it deprived Plaintiff of his 

rights under the Privileges and Immunities clause of the Fourteenth Amendment 

to the U. S. Constitution.; and

(4) award Plaintiff compensatory damages for his losses that were

proximately caused by the unconstitutional actions of Defendant County Judge.

(5) award Plaintiff his costs and expenses incurred in bringing this 

action, including reasonable attorney fees pursuant to 42 U.S.C. § 1988; and 

(6) grant Plaintiff such other and further relief as the Court deems 

equitable, just, and proper. 

Respectfully submitted,

/s/Francis S. Ainsa, Jr. 

Francis S. Ainsa, Jr.

State Bar No. 00949000

Attorney at Law

3801 N. Capital of Texas Hwy

Suite E240, PMB 653

Austin, Texas 78746

Tel: (915) 726- 3681

Fax: (512) 532-6614

fain@ainsalaw.com

/s/ Carlos E. Cardenas

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Plaintiff’s First Amended 

Complaint for Declaratory

Relief

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Carlos E. Cardenas 

Attorney at Law

State Bar No. 03787700

717 E. San Antonio

3

rd Floor

El Paso, Texas 79901

(915) 544-7860

(915) 532-4768 Fax

cecardenaslaw@gmail.com

ATTORNEYS FOR J.P. BRYAN

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