Thursday, May 7, 2020

See, what did we tell you about haircuts? Of course, at the current rate this news cycle is going, next week another order could make haircuts mandatory and then three days later the punishment will be reversed. Who knows anymore?

TDCAA coronavirus resources

All our COVID-19 resources—including sample motions and orders, helpful information, and past updates like this one—are available at If you or someone in your office has “built a better mousetrap” in response to the pandemic, consider emailing it to Shannon to share with your peers.

OCA guidelines for courthouse re-openings

We’ll get to the fun stuff in a moment, but first, let’s talk about an opportunity to save yourselves some major headaches in the future.

On Monday, the Office of Court Administration (OCA) issued its guidance for the re-opening of courthouses and the resumption of non-essential in-person court proceedings as of June 1, 2020. This latest Court Operation Guidance (5/4/2020) is quite detailed and deserves your attention. In it, the OCA is requiring the judge in charge of each city and county courthouse to submit to that agency a safety plan that must be approved by the agency before non-essential proceedings may be held in person. (Or else …? To be honest, we don’t really know what OCA could or would do if non-complying proceedings were held, but we assume most of your judges will fall in line.) The recommended plan is quite extensive, and its mandates will apply to all courtroom participants, including prosecutors, so read the link above (including the downloadable PDF and Word documents) to get the full gist of what will be required.

While OCA had gotten input from health experts on how to safely re-open courthouses, there are still many unanswered questions about a return to something approaching normal court operations that are outside that agency’s bailiwick. Those “Big Questions” include:

  • How will your courthouse handle the backlog of cases that have built up?
  • When should jury trials start up again, and will anyone show up for jury duty when summons do go out?
  • When will TDCJ and TJJD start accepting transfers again?
  • Will there be a rise in crime when society re-opens, and if so, how will local communities handle it?

We don’t have answers to these questions either, but now is probably a good time to start educating yourself on what the courts are considering so that you can make your opinions known to your local judiciary as they plan for the future.

#OpenTexas plan accelerates to ramming speed

Things have been wild on the statewide emergency order front, so let’s see if we can cut through some of the (political) heat and share with you the (policy) light instead.

Deviating almost immediately from his planned schedule, on Tuesday the governor replaced Executive Order GA-18 (re-opening of various retail and food services across the state) with Executive Order GA-21 (even more re-openings). This new statewide emergency order includes all these re-openings we told you about in our last update plus the following “Phase Two” changes:

  • Effective Tuesday (May 5), wedding and wedding reception venues can re-open under the 25-percent threshold announced in GA-18;
  • Effective tomorrow (Friday, May 8), barbershops, hair salons, gyms, tanning salons, and swimming pools can re-open to varying degrees (read the order for details) [NOTE: See next section for acceleration of this re-opening retroactively];
  • Starting Monday next (May 18), business offices, manufacturing services, gyms, and exercise facilities can re-open using the 25-percent threshold; and
  • These new 25-percent threshold openings are increased to 50 percent for counties with five or fewer COVID-19 cases on file with DSHS.

Still on the outside looking in are bars, massage parlors, tattoo studios, piercing studios, sexually oriented businesses (SOBs), and amusement venues (bowling alleys, video arcades, etc.). And, no doubt in response to this Houston strip club that tried to re-brand itself as a restaurant so it could re-open, GA-19 says that any prohibited business that tries a similar stunt may offer only the permitted food service (or whatnot) and not engage in conduct prohibited by the order.

That being said, based on this week’s events in Dallas,* it’s pretty clear that the governor and the attorney general will not stand behind any attempted prosecutions for violating the governor’s emergency orders, so proceed accordingly. (*Yeah, we know that link is 36 hours old and woefully outpaced by events since then, but frankly, we can’t keep up with this nutty news cycle! You all know what we’re talking about anyway.)

Latest edict from Austin

As the Salon a la Mode kerfuffle reached its crescendo earlier today (Thursday, May 7), the governor issued Executive Order GA-22 (haircuts for all!) to:

  • Retroactively allow hair salons, barbershops, and nail salons to operate as of April 2, 2020 (Which is weird, right? But it is apparently an attempt to invalidate any prosecutions of them under prior orders that forbid their operation); and
  • Amend “all existing orders relating to COVID-19” to eliminate jail confinement as a penalty for any violation, also retroactive to April 2, 2020.

As we’ve pointed out on multiple prior occasions, the authority for the gubernatorial suspension of such laws—including the statutory punishment range for a criminal offense established by the Legislature—is both dubious and beside the point because these edicts from on high are unlikely to ever be challenged in court.

We have gone on record several times over the past two months—such as here and here and here and … well, you get the idea—to recommend that criminal enforcement of these orders should be a last option, but this latest cause célèbre should effectively put an end to any further debate over the wisdom of that option. As it’s been pointed out before, if the governor is going to keep changing the tune he plays as he leads the state out of this pandemic, there is little incentive to put your own necks on the line to enforce an order that could be invalidated the next day. If you do that, you may simply be making someone else’s problem your problem, and that rarely ends well for the one at the bottom of the marionette’s strings. But as always, the ultimate decision is up to you—after all, that’s why you ran for this job, right? LOL

Emergency order litigation

Elsewhere, various legal challenges are being raised to state and local orders in courthouses throughout the state, none of which seem to be getting very far. Of particular note is a scattershot mandamus action direct-filed in the Texas Supreme Court last week on behalf of the aforementioned Dallas salon owner and various other non-essential businesses (salons, vape shops, etc.) challenging the enforcement of GA-18 and similar local emergency orders. The case was summarily rejected by the high court, which held that such actions need to be filed in a district court just like everything else, but it also included a short concurring opinion by Justice Blacklock (and joined by three other justices) which cryptically noted that the judicial branch retains the right to “judge the constitutional validity of the government’s anti-virus actions” in cases that are properly presented to it.

(Side note: While the governor touted GA-22 as a way to release Shelley Luther, the Salon a la Mode owner, she was actually sprung from the Dallas County jail by the Texas Supreme Court’s acceptance of her writ application challenging the contempt finding, for which the high court ordered her release while the parties brief issues relating to her challenge to the validity of the order underlying her contempt finding. Also, say your prayers to whoever has to answer the phones for the Dallas County Criminal DA’s Office; the DA, John Creuzot, had to take to Twitter to correct people on social media who have been mistakenly led to believe that his office had anything to do with this whole debacle.)

Assuming the state succeeds in tamping down the coronavirus to an acceptable level of morbidity, it’s likely that most of the issues raised by these lawsuits will be moot before the high court can rule on them. That will disappoint those hoping for some clarification on all this mess, but don’t worry—the “¿Quien Es Mas Macho?” questions we raised more than a month ago will be ripe for debate in the Legislature in 2021 even if the courts don’t have their say first.

Protective order confidentiality

As you know, many courts have their own YouTube channels and are live-streaming their proceedings—including some sensitive protective order hearings. Many prosecutors and judges may not realize that the law allows courts to limit public access to these kinds of hearings, so the OCA has provided both directions for doing so and a legal memo justifying those limitations. (H/t to 46th DA Staley Heatly for the resources!)

Punishment reminder

Earlier this week we saw a local criminal defense lawyer’s TV commercial warning his potential customers clients that some crimes have increased punishments during a declared disaster, which we thought was a really clever hook. It’s been almost eight weeks since we mentioned that same fact in our first coronavirus update—which seems like eons ago!—so we thought we’d remind you that state and local disaster declarations increase the punishment range for the following offenses committed during that disaster:

  • Penal Code §22.01 (assault)
  • PC §28.02 (arson)
  • PC §29.02 (robbery)
  • PC §30.02 (burglary)
  • PC §30.03 (burglary of coin-operated or coin collection machines)
  • PC §30.04 (burglary of vehicles)
  • PC §30.05 (criminal trespass)
  • PC §31.03 (theft)

According to PC §12.50 (Penalty if Offense Committed in Disaster Area or Evacuated Area), the punishment for these offenses is increased one degree, with exceptions for Class A misdemeanors—for which the minimum punishment is merely increased to 180 days—and first-degree felonies, which are unaffected. As with any punishment enhancement, of course, the decision on whether to allege that circumstance in a case rests within the sound discretion of your office. (Assuming the governor doesn’t suspend this statute as well. Who knows.)

Quotes of the Week

“These folks are just looking for attention, and they’ll do anything to get it and get their 15 seconds in the light. Then they’ll be gone and they’ll be forgotten.”
            —Tarrant County Judge Glen Whitley, in response to a planned “HonkeyTonk (sic) Crawl for Freedom” in Fort Worth last weekend to protest bar closures. (The pub crawl was later cancelled for lack of interest from the bar owners, most of whom kept their businesses closed.)

“I’m getting calls from all over the country threatening to shoot me. I mean, it’s just been crazy.”
            —Ector County Sheriff Mike Griffis, after his deputies arrested several heavily-armed out-of-town protesters for carrying firearms at a licensed premises—a bar which his office also shut down after it tried to re-open in violation of the statewide emergency order.

“The simplest thing to do in technology when you get a virus is you disconnect your computer. The same thing happened in the county: You disconnect your county from everyone else, so the virus doesn’t spread from everywhere else.”
            —Alberto Perez, city manager for Rio Grande City in Starr County, which successfully adopted mask orders, business closures, and adult curfews early in the pandemic to limit its spread.

“If you ask me today, what’s the percentage chance we come back in August? I have no idea. Somewhere between 0 and 100 percent.”
            — Brian Woods, superintendent of Northside ISD in San Antonio, being truthful—but not very helpful!—in a story about how schools are approaching the fall semester.

“The rule of law governs us. People cannot take it upon themselves to determine what they will and will not do.”
            —Dallas Civil District Judge Eric Moyé, finding Salon a la Mode owner Shelley Luther guilty of contempt of court for ignoring court orders to close her business. (The Texas Supreme Court has since ordered her released on a writ pending resolution of the matter.)

“Leadership is tough. Clear to all now that the real leader of Texas is a salon owner, the Gov simply follows her lead. I guess someone has to lead. Well done salon lady. Well done.”
            —Tweet from @DFWPol after the governor’s latest order barring certain punishments for violating emergency orders.

Until our next update, keep checking our website and Twitter feed for the latest COVID-19 news.