Thursday, May 28, 2020

Is anyone else feeling a strange combination of (a) surprise that it is already almost June and (b) exasperation that this damnable year still isn’t over? We don’t know what to call this odd feeling, but we bet the Germans have a word for it.

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 something you would like to share with your peers, consider emailing it to Shannon for inclusion. Recent additions include:

On your marks, get set, … wait?

On Wednesday (May 27, 2020), the Texas Supreme Court (SCOTX) issued Emergency Order No. 17 to remind local judges what they may/should/shall/shall not do as courthouses re-open for business. The order is written in a manner that only an appellate lawyer could love, so allow us to try to parse the order’s numerous pronouncements in a manner more useful to practitioners:

  • As with previous SCOTX orders during the pandemic, local courts “may” continue to suspend deadlines, accept evidence and testimony remotely, hold court elsewhere, or take related actions to avoid spreading COVID-19;
  • However, local courts also “must [do those things] to avoid risk to court staff, parties, attorneys, jurors, and the public”—which makes one wonder why they initially state it in a discretionary manner, because that’s the whole point of taking those actions, isn’t it?;
  • Local courts may start holding in-person proceedings on June 1, but those courts “must not” conduct them contrary to the Office of Court Administration’s (OCA) guidelines, “must” get OCA approval of its operating plan before doing so, and “must” use all reasonable efforts to conduct proceedings remotely—which should result in very few in-person proceedings if taken literally;
  • Grand juries may meet remotely (pro tip: that’s probably a bad idea unless you really enjoy pre-trial and appellate writ practice), or they may meet in-person “as long as adequate social distancing and other restrictions and precautions are taken to ensure the health and safety of court staff, parties, attorneys, jurors, and the public” (which is the less drastic alternative, although it is unclear if or how these conditions will be policed);
  • As necessary, SCOTX reminds everyone that a district court may extend its term—and by operation of law, its grand jury—under Government Code §24.0125 (sample order available here) or may reassemble discharged grand jurors under CCP Art. 19.41 if they were discharged before the end of the court’s term (which for almost all district courts will not be until Sunday, July 5);
  • A court must not hold jury proceedings before August 1, except that jury proceedings may be held if OCA participates and reports back to SCOTX on how it went; and
  • The state’s 11 regional administrative presiding judges are given the duty to ensure compliance with these new mandates/suggestions (but without any details on what will be done if a local court ignores them—other than to tattle to OCA, of course).

As we mentioned three weeks ago in COVID-19 Update No. 10, the OCA’s guidelines for re-opening are quite extensive and the mandates apply to all courtroom participants, including prosecutors, so read their proposed procedures to get the full scope of what will be required. And if your local judges re-open for business without taking the proper precautions to protect your employees or the community at large, this latest SCOTX order gives you the green light to snitch them out to your regional presiding judge or OCA’s Court Security Director; however, only you can decide whether that juice is worth the squeeze, so choose wisely.

Two other tidbits to pass along from OCA (taken from information sent to the judiciary earlier this week):

  • The agency considers the use of face coverings a best practice based on expert medical advice, but OCA court guidelines do not mandate the use of face coverings in court. Each judge has the discretion to mandate (or not) the wearing of face coverings in court.
  • The agency is working with TDCJ to ensure that all prison inmates can participate in virtual court proceedings via Zoom technology. If you know of a facility in need of such a technological upgrade, send an email with the relevant details to OCA at  [email protected].

Latest statewide executive orders

On Thursday of last week (May 21, 2020), the governor issued Executive Order GA-24 ending air travel restrictions on those arriving from certain high-risk locations outside Texas.

Late on Friday of last week (May 22), the governor issued Executive Order GA-25 closing county and municipal jails to in-person visitation by the public. Previous orders had relieved those jails from the statutory requirement to allow in-person visitation, but this new order prohibits jails from enacting such policies even if they wish to (with exceptions for visits by detainees’ legal counsel and members of the clergy). This order is in effect until the governor rescinds or supersedes it.

On this past Tuesday (May 26), the governor issued a proclamation expanding the list of “covered services” in original Executive Order GA-23 (“Phase Two” re-openings) to permit the re-opening of shopping mall food courts, water parks (but not their video arcades), recreational sports leagues for adults, and driver’s ed programs. (See the text of the proclamation for more details).

Finally, note that GA-23 (as amended) is in effect through Wednesday, June 3, so you can expect further edicts emanating from Austin before then.

Longevity pay revenue takes another hit

The use of surety bonds has dramatically decreased since the pandemic began, and as a result, the collection of costs attached to those bonds that supports assistant prosecutor longevity pay and indigent defense has also tanked. The comptroller’s office has supplemented the longevity pay program with about $1 million of general revenue so far this fiscal year, but due to the governor’s recent request that (most) state agencies cut their FY2020–21 budgets by five percent, it is uncertain how much more general revenue will be available to continue propping up the longevity pay fund. We are told that state agencies must submit their budget reduction plans by June 15 and that the comptroller plans to prioritize judicial and prosecutor salaries and other statutorily-mandated programs, but all that we can say for certain as of now is that longevity pay payments could be subject to a reduction at some point during this current state funding cycle. We will continue to monitor the issue and report any actionable news when it happens.

Funding opportunity

The Texas Department of Emergency Management (TDEM) is making federal money from the COVID Relief Fund (CRF) available for cities and counties with a population below 500,000, as authorized by the Coronavirus Aid, Relief, and Economic Security (CARES) Act. Of the $11.24 billion in CRF money earmarked for Texas, the state has dibs on more than $6 billion of it, large (500,000+ pop.) jurisdictions are getting $3.2 billion, and the remaining $1.85 billion is to be apportioned among the rest of the state *if* those jurisdictions claim reimbursements for unexpected costs incurred due to the pandemic—such as for housing paper-ready TDCJ inmates in your jails. The available amounts vary by jurisdiction (details available here). To learn more about applying for funds this program, email Wise CA James Stainton (who kindly offered to share what he learned after running these traps for his county—thank you, James!).

Prosecutor Trial Skills Course cancelled

Unfortunately, we must cancel our upcoming July 2020 Prosecutor Trial Skills Course (aka “Baby School”) in Austin due to the ongoing pandemic. These decisions are never made lightly, but our concern for the health and safety of our speakers and attendees is too high at this time to go through with the event. Fortunately, this is a course that we hold twice a year, so we will plan on accommodating a larger attendee group in January of 2021.

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.

Quotes of the Week

“It was a fiasco. Not only was it a waste of time, it was possibly infringing on the criminal defendant’s rights, and in any event, was threatening the participants’ safety. The preeminent issue is always the safety of the participants—and principally the jurors, who are not volunteers. They are forced to be there.”
            —Texas Supreme Court Chief Justice Nathan Hecht, criticizing a recent criminal jury trial in Ohio that was scrubbed after the defendant exhibited COVID-19 symptoms during voir dire.

“[The recent decrease in crime] runs contrary to common perception that as misery spreads, crime rates should go up. When there are fewer potential victims on the streets, there will be few potential crimes, regardless of the increases of the level of economic distress or misery.”
            —Richard Rosenfeld, a criminologist at the University of Missouri-St. Louis, in a NY Times story on the general decrease in criminal activity across the country during the pandemic.

“They subject themselves to potential litigation as well as potential licensing-based issues if they fail to comply, so it’s a potentially business dangerous process for them to proceed forward knowing they are subjecting themselves to litigation if they open up and anyone contracts COVID-19.”
            —Governor Abbott, engaging in an act of coronavirus saber-rattling toward water parks and other businesses still barred by his emergency orders from re-opening until recently.

“It was a good learning experience. You’ve got to bite it off in increments. You got to go in and ask for more than you know you can get, so that what you end up with hasn’t been whittled down to where it’s totally irrelevant.”
            —Doug Deason, GOP megadonor and criminal justice reform advocate, discussing in a D Magazine profile a lobbying lesson he learned from passing the “Second Chances Act” in 2015 to expand non-disclosure eligibility. (A “Second Second Chances Act” passed the following session.)

“We have strictly adhered to the stay-at-home order since early March. … We were just extremely careful—and then we get it. How in the world would that happen? We have no idea. All I know is it must be very contagious.”
            —Texas Supreme Court Justice Deborah Lehrmann, who (along with her husband) tested positive for COVID-19 last week. (As for her confusion over how it was contracted, perhaps other facts in this article yield a clue?)

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