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UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF TEXAS

PECOS DIVISION

J. P. Bryan, x

x

Plaintiff, x

x

v. x Case No. _________________

x

County Judge Eleazar x

R. Cano, x

x

Defendant. x

PLAINTIFF’S ORIGINAL COMPLAINT

FOR A DECLARATORY JUDGMENT 

NOW COMES J. P. Bryan, Plaintiff and files this Original Complaint for a 

Declaratory Judgment, as follows:

I. PARTIES

1. 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. 

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

Texas and may be served at his office in the County Courthouse, Brewster County, 

Texas, 201 West Avenue E, Alpine, Texas 79830.

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II. JURISDICTION AND VENUE

3. This Court has jurisdiction under 28 U.S. C. 1331 because this suit 

involves a federal question, namely a violation of Plaintiff’s right to equal 

protection under the Fourteenth Amendment to the United States Constitution.

4. Venue is proper because the Pecos Division includes Brewster 

County, Texas.

III. FACTUAL BACKGROUND

5. 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 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. 

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

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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.

7. 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. 

8. On March 19, 2020, Governor Greg Abbott issued Executive 

Order No. GA-08, which contained Orders Nos. 1 through 4. Order No. 2 

directed people to avoid eating or drinking at bars, restaurants, and food courts, 

or visiting gyms or massage parlors. Executive 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.

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

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of March 17, 2020. The amendment mandated that all hotels/motels and shortterm rentals close and vacate their guests through April 2, 20020 except of 

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.

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

Declaration of March 17, 2020. The amendment mandated that 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. This 

amendment also created exceptions for certain categories of persons who, 

notwithstanding the closure order, were permitted to use the hotels: (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 e) 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 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 

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Amendment is attached as Exhibit E.

11. 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. 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 reported case in Pecos County.

12. After the 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. Oder No. 1 is entitled “Hotels, 

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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.

13. On March 31, 2020, Governor Greg Abbott signed Executive 

Order GA-14, a copy of which is attached as Exhibit H. Executive Order GA14 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. 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.

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

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

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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.

15. 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 placed on the Brewster County website on April 7, 2020. On April 9, 

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.

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16. 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 form 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. On April 9, 

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.

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IV. DECLARATORY JUDGMENT

17. In the 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:

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.

18. In order for Defendant County Judge to issue a Declaration of a local 

state of disaster and issue orders, he must be able to reasonably be able to 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 

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

there was no imminent threat that COVID-19 would infect residents of Brewster 

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

allowed to come into Brewster County under the Amended Order, as extended, and 

stay in hotels based on their occupations, are not a threat to the residents of 

Brewster County. 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. As of the date this Complaint is being filed, no 

COVID-19 cases have been reported in Brewster County, Texas on the Texas State 

Health and Human Services website.

19. 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 

Extending Amended Order signed on April 7, 2020, Plaintiff cannot rent hotel 

rooms to guests other than (1) guests that have a primary residence in his hotel, or 

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(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. Other similarly situated businesses in 

Brewster County are not prohibited from selling goods and services to visitors 

including recreational visitors and travelers from outside of Brewster County, 

Texas. There is no rational basis to prohibit Plaintiff from renting rooms to visitors 

from outside of Brewster County other than the four categories of guests who are 

described in Amended Order and, at the same time, allowing other businesses in 

Brewster County that are similarly situated to sell goods and services to all 

customers including visitors and travelers from outside Brewster County. The 

irrational classification is made more prominent by the fact that guests employed 

as described in the Amended Order who are allowed to rent rooms from Plaintiff 

may all be visitors or travelers to Brewster County and be just as likely to spread 

COVID-19 as visitors who are not so employed. The Amended Order does not 

even require that the allowed 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 Amended 

Order can rent a room at a hotel just be verifying their employment classification

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and are in no different a position than visitors and travelers who want to rent rooms 

but are not so employed.

20. Defendant County Judge’s Oder Extending Amended Order signed on 

April 7, 2020 violates Plaintiff’s right to equal protection under the Fourteenth 

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

void.

21. Defendant County Judge’s Supplemental Order No. 5 signed on April 

7, 2020 banning all travel encompasses travel into and out of Brewster County 

except for Essential Activities, Essential Business, Essential Governmental 

Functions or Critical Infrastructure. The travel ban is unconstitutional under the 

privileges and immunities clause of the Fourteenth Amendment to the United 

States Constitution and should be declared null and void.

VI. ATTORNEY’S FEES

22. Plaintiff J.P. Bryan requests that, after compliance with FRCP 54, 

he be awarded his costs and reasonable attorneys’ fees. 

VII. PRAYER

23. Plaintiff requests the Court to issue a Declaratory Judgment declaring 

that the Order Extending Amended Order and the Supplemental Order No. 5, 

both signed on April 7, 2020, be declared void because they violate Plaintiff’s 

constitutional rights to equal protection and privileges and immunities, 

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respectively, under the Fourteenth Amendment to the United States Constitution; 

to award him his costs and attorneys’ fees and to award him such other and 

further relief to which he may be justly entitled at law or equity.

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

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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