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COVID-19 UPDATE No. 12

Thursday, May 21, 2020

Due to the upcoming holiday weekend, we are sending this week’s update one day early. (And don’t forget to take some time on Monday to pay your respects to those who gave the last full measure of devotion for the rest of us!)

TDCAA coronavirus resources

All our COVID-19 resources—including sample motions and orders, helpful information, and past updates like this one—are available at https://www.tdcaa.com/covid-19-information/.

If you or someone in your office has something you would like to share with your peers, consider emailing it to Shannon for inclusion. Recent additions include a screening form from the Oneida County (NY) DA’s Office to be completed by visitors (witnesses, officers, deliveries, etc.) to a prosecutor’s office.

Latest statewide executive order

On Monday, Governor Abbott rolled out Executive Order GA-23 (“Phase Two” re-openings), which replaces GA-21 (“Phase One” re-openings) and  GA-22 (no jail sentences for violating orders). The new order includes a detailed schedule for further re-openings across the state to be phased in starting on Monday, May 18, and effective through Wednesday, June 3 (barring further modification or rescission by the governor).

We’re not going to summarize the entire 10-page order for you because you can visit https://gov.texas.gov/organization/opentexas for a plain-language summary of the rolling schedule of re-openings (and because we know they are unlikely to be enforced criminally). However, some items we found interesting include:

  • “Essential” and “re-opened” services are now being called “covered” services, perhaps to avoid claims that the governor is deeming some industries “non-essential”;
  • Many types of businesses are not mentioned in the order, but the only ones still explicitly verboten are “interactive amusement venues such as video arcades, amusement parks, or water parks”;
  • Like GA-22, the new order still says that “government officials should look for the least restrictive means of combatting the threat to public health,” still bars jail time as a punishment for violations (retroactive to April 2), and still prohibits any civil or criminal penalty for failure to wear a face covering; however, it does say that businesses may require customers to “follow additional hygiene measures” (which implies that they may require masks as a policy, contrary to some mask-less customers’ claims that “Texas’s governor says you don’t need (expletive)!”);
  • The new order carves out El Paso County and four counties around Amarillo (Deaf Smith, Moore, Potter, and Randall) and imposes slower timelines for them in response to those counties’ unique situations; and
  • The new order does *not* supersede GA-13 (jail and bail releases), meaning that the suspension of the 90-day indict-or-release law is still in effect until cancelled or superseded by a future order.

More handcuffs for local authorities?

We missed something buried in GA-21 (effective May 5–18, 2020) that has the potential to impact your authority and duties during the pandemic, so please forgive us for the oversight and allow us to lay out our analysis here. (Better late than never!)

During this declared emergency—at least as far back as our COVID-19 Update No. 2 (March 20, 2020)—we’ve been referring you to pandemic-related resources kindly provided by the Health Law & Policy Institute at the University of Houston Law Center on their webpage dedicated to “COVID-19 Pandemic Legal Resources for Texas.” However, the governor’s latest orders may have made that moot by taking away some of your authority to seek testing, isolation, or quarantine of infected people or places. Here is how we have connected those dots.

Subchapter E (“Control”) of the state’s Communicable Disease Prevention and Control Act (aka Health and Safety Code Chapter 81) grants a local health authority the power to impose “control measures” such as immunization, decontamination, isolation, quarantine, or other types of prevention in response to a public health disaster (H&SC §81.082). During a declared public health disaster, some of that can be done without a court order, while other procedures may require greater due process and can be ordered only by a district court upon request of a local county or district attorney. (That’s where you come in on the front end: acting as the local health authority’s counsel).

However, previous Executive Order GA-22 and the current GA-23 both “suspend … Chapter 81, Subchapter E of the Texas Health and Safety Code, … to the extent necessary to ensure local officials do not impose restrictions in response to the COVID-19 disaster that are inconsistent with this executive order ….” In other words, the governor has suspended the control measures listed in Subch. E if they would conflict with GA-23’s long, long list of permissible conduct. For instance, this abrogation might prohibit a local health authority from asking a local prosecutor to file with a district court a request to impose a control measure on a person or place known to be infected or contaminated with COVID-19 if doing so would shut down a hair salon, gym, restaurant, or other “covered service” allowed to remain open under GA-23. There are also at least four misdemeanor or felony offenses in Subch. E for violating court-ordered control orders—that’s where you come in on the back end—but the governor has apparently taken those off the books as well by means of this language found in his two latest orders.

So, what does this all mean? Assuming a governor can actually do such a thing—which he can until a court says otherwise—this means that the governor has suspended the statutory structure the Legislature set up to respond to a communicable disease outbreak and replaced it with his own emergency orders in those situations in which the two “laws” conflict. Thus, if your local health authority brings you a complaint about someone in your jurisdiction with COVID-19 possibly infecting people, or some business with a rampant outbreak that is endangering your local community, you should check GA-23’s laundry list of permissible “covered services” and if the person or place qualifies as such, then you may be SOL. Oh, and don’t bother referring your pandemic problems to state regulatory agencies (as we have previously—and perhaps naively—suggested) because it appears that they are also not taking any action in response to the coronavirus complaints they receive.

Happy happy, joy joy.

A new TDCAA book!

From investigation through trial, the first edition of Family Violence tells prosecutors, officers, and others in the criminal justice system everything they need to know about how to handle the prosecution of family violence cases. Written by Staley Heatly, the 46th Judicial District Attorney in Vernon, the book includes checklists, forms, and sample pleadings as well as a narrative that leads readers through every step of the process and offers common-sense tips. A CD that accompanies the book contains forms from the book as well as other helpful resources. To order a copy, see our publications page or click here.

Training scholarships still available

The State Bar’s Criminal Justice Section has extended the deadline to apply for scholarships to certain CLE courses, including the Bar’s Advanced Criminal Law Seminar (Houston, July 13–16) and our own Annual Criminal and Civil Law Conference (South Padre Island, September 16–18). Only current members of the CJ Section may apply. For more information on how to join the section or apply for a scholarship, click here. The deadline for applications is now May 31, 2020.

Quotes of the Week

“(Local residents) are caught between mom and dad yelling at each other about what their orders mean. It’s not time to divide and blame. That’s a waste of precious energy.”
            —Former Travis County Judge Sarah Eckhardt, on the political bickering between state and local officials over which emergency orders are or are not enforceable.

“Are there any teenagers in the locale?”
            —An appellate judge on one of Pennsylvania’s Superior Courts, in response to a lawyer struggling to activate his camera for video oral arguments. (The camera was eventually activated with the help of the lawyer’s daughter.)

“I certainly don’t think there is going to be an easy way in the near future to have jury trials the way we’ve had them.”
            —Michigan Supreme Court Chief Justice Bridget Mary McCormack, in a Wall Street Journal article on courts around the country experimenting with virtual jury trials.

“Only a normal amount of weird stuff happened.”
            —470th District Judge Emily Miskel (Collin County), as quoted in the same WSJ story. For more on her experience facilitating the first virtual jury selection in Texas (albeit only for a civil summary jury trial), read this Texas Lawyer article.

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

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