Friday, July 10, 2020

COVID-19 Update No. 19? Gotta be honest, when we started these updates four months ago, we never even considered we might still be doing them in July. Thank goodness we didn’t start out using Roman numerals to count them or we’d be approaching Super Bowl-levels of confusion right now.

More mystifying mask mandates

Less than one hour (!) after we sent out our pre-holiday update last week, Governor Abbott made two changes to his standing statewide emergency orders in preparation for the Independence Day weekend. First, he issued a proclamation amending Executive Order GA-28 to prohibit most outdoor gatherings in excess of 10 people unless approved by the local mayor or county judge. (That order will remain in effect until rescinded or amended by the governor.) But the edict that gathered most of the attention was new Executive Order GA-29, which kinda-sorta-maybe requires people to wear face coverings outside their homes. We say “kinda-sorta-maybe” because this new statewide mask mandate has 11 enumerated exceptions, and even if none of those exceptions apply, it still appears to be legally unenforceable; however, it also includes a loophole to allow local governments to impose their own fineable mask mandates. Allow us to break that down for you in more detail.

Limitations of statewide mask mandate

For starters, GA-29’s mask mandate has a laundry list of exceptions (age, medical condition, eating/drinking, swimming, etc.—see the order itself for the details). That list includes an opt-out for counties with fewer than 20 confirmed COVID-19 cases, and as of today it appears that almost 80 local commissioners courts have exercised that option to exempt their counties from the mandate.

For those in the remaining counties who cannot find an enumerated exception to excuse their masklessness, the order includes a graduated sanction that begins with a warning for a first offense and increases to a fine of up to $250 for subsequent violations. However, the order specifically states that “no law enforcement or other official may detain, arrest, or confine in jail any person for a violation of this executive order ….” (emphasis added). That language does perhaps leave the door open for a consensual encounter and a warning—although the word “perhaps” is doing a lot of work in that statement—but we cannot for the life of us figure out how a law enforcement officer is supposed issue a citation to someone they are not allowed to detain for that purpose. (Maybe some city can repurpose its mothballed red-light cameras as mask sentries around town and just mail letters to anyone walking around sans mask? Who knows.) Not only is this a problem for enforcing the statewide mask edict, but if an officer’s initial mask-based encounter elevates to an investigation of a jailable offense (POM, POCS, UCW, etc.), that type of contraband evidence may be suppressed before trial if the sole basis for the encounter was a mask violation under GA-29.

And there is at least one more problem with enforcement of the statewide mask mandate: A fine under GA-29 is an option only for a repeat offender, but there is no way for agencies to track any initial warnings, nor to conclusively identify a person who cannot be detained for the purposes of a warning or fine, making the fine for repeat offenders a practical nullity.

The loopholes

Just as every mask has two loopholes for your ears, GA-29 has two loopholes for potentially getting around the problems it creates, if you or your community are so inclined.

First, by its own terms, GA-29 still allows officers to “enforce trespassing laws and remove violators at the request of a business establishment or other property owner.” That has been the preferred practice under GA-28, which in paragraph 15 said:

“Nothing in this executive order or the DSHS minimum standards precludes requiring a customer to follow additional hygiene measures when obtaining services. Individuals are encouraged to wear appropriate face coverings, but no jurisdiction can impose a civil or criminal penalty for failure to wear a face covering;

This was the original loophole that allowed local governments to rely on—or in some places, require—businesses to enforce mask requirements, and it remains one avenue for enforcement under GA-29. However, GA-29 also includes the following new provision:

Executive Order GA-28 is hereby amended to delete from paragraph number 15 [see above] the phrase: ‘, but no jurisdiction can impose a civil or criminal penalty for failure to wear a face covering.’”

As a result, even though the statewide mask mandate may largely be a sham, local jurisdictions MAY now impose direct penalties for failure to wear a face covering, in addition to penalties on businesses that fail to enforce their own mask mandates on their premises. And furthermore, the limitation on detentions in GA-29 says, “No law enforcement or other official may detain, arrest, or confine in jail any person for a violation of this executive order” (emphasis added), but it silent as to detention, arrest, or confinement for the purposes of enforcing a local mask order. So, while the local penalties for violating local orders must still be limited to fines or other non-jailable remedies under other language in GA-28 that bars jail as a punishment for violating any executive order during the pandemic, the “no detention” language apparently does not apply to local mask orders, making them enforceable. As of yesterday, this is apparently what the City of Austin will do, and the same governor who overrode Austin and other urban jurisdictions’ local mask ordinances back in April is apparently on board with them now.

Let the finger-pointing begin

For a further indication that the governor now wants local officials to step back into that role from which he previously barred them, we refer you to this excerpt from his interview on Monday with KFDM (CBS Channel 6 in Beaumont):

“I’ve thought about it a whole lot. If you look at the county judges or mayors who are asking for more authority to take action or to really shut things down completely back into lockdown mode that would really force Texans into poverty, I found one thing to be consistent: All of those local officials who are asking Texas to shut back down—they’ve absolutely refused to enforce the current executive orders that are already in place. What they need to show is action, not absenteeism. They need to show up, enforce the law as it is, before they’re given any further authority. They ask for more and more, but they do absolutely nothing. Here’s the reality: Every single one of these executive orders that have been issued were done based upon the advice of doctors to ensure that if these executive orders were enforced as local authorities have had the authority to do so, it would stop the spread of the coronavirus, especially this most recent order. If local officials enforce the mask order, it will slow the spread of the coronavirus. They just now need to step up and begin to enforce the orders that are already in place.”

You may draw your own conclusions from that statement, but allow us to point out that his comment that these orders are “based upon the advice of doctors” partially confirms what we presumed three months ago in Update No. 5 when explaining how to interpret GA-14, the initial statewide “stay-at-home” order, when we said:

“[R]emember that the details in this order are intended to be *health and safety* directives. They are meant to slow or stop the current pandemic, full stop; everything else is secondary. We’ve already received multiple questions asking us to legally parse the wording, but frankly, that’s probably approaching the question from the wrong perspective. These kinds of orders are likely written more by doctors than lawyers.”

In conclusion, GA-29 and the 10-person cap on outdoor gatherings were intended to prevent the Independence Day holiday weekend from becoming a repeat of the “What, me worry?” approach that many Texans apparently took to the Memorial Day holiday, which many blame (at least in part) for the situation the state now finds itself in. It will be another week or two before we know if these attempts were effective. If not, then we’re all about to have to change any fall and winter post-coronavirus plans we may have been making.

Polling results

We enjoy following the periodic polling done by the Texas Politics Project at UT-Austin, and every few months they churn out thought-provoking new results on the political and policy issues of the day. The coronavirus and police accountability are some of the more recent topics they have tackled, the details of which can be found HERE. Among the more interesting results of the June 2020 poll are these nuggets:

  • After a long reign at the top of the list of most important issues facing Texas, border security and immigration have finally been displaced by COVID-19
  • Health care professionals have the best job approval rating (75%) during the pandemic, followed by local government (53%), state government (47%), the feds (40%), and the news media (only 29%—yikes!)
  • The protests following George Floyd’s death have an overall favorability/unfavorability score of 43/44 and the Black Lives Matter movement has an overall score of 42/43, with drastic differences among various crosstabs (race, party affiliation, etc.)
  • Strong partisan divides also exist on issues like police favorability, whether recent deaths in police encounters are isolated incidents or signs of systemic problems, and whether Texas is more generally on the right or wrong track
  • More than half (51%) of black respondents said they had been treated unfairly by police because of their race, compared to 29% of Hispanics and only 11% of whites

Again, for those of you who are into this kind of thing, all the Texas-centric poll details and results can be viewed HERE.

Coronavirus and courts

In response to the Texas Supreme Court’s change of course in Emergency Order No. 18 to allow judges to put parties to a jury trial without their consent, the board of directors for the Texas Criminal Defense Lawyers Association (TCDLA) approved a resolution this week asking that court to rescind that change and restore parties’ ability to object to a jury trial during the pandemic. No word yet on how that went over with the court, but as we noted last week, many judges seem increasingly uncomfortable with their docket backlogs, so with no end to this pandemic in sight as of now, this no-consent rule may become the new normal. (Which is really a return to the old normal, but in a riskier way in some counties.)

Second TDCAA webinar now available online

The second in our new series of multiple presenter online courses, Caseload Management addresses what has been perhaps the most requested training topic from our membership. Dockets are getting larger, deadlines loom, and discovery is a constant complication, putting prosecutors at constant risk of drowning in a sea of cases. In response, our newest training module features experienced prosecutors from all over the state discussing the methods they employ to stay afloat. The fee for this course is $25, and participants will receive 1.75 hours of MCLE credit upon completion. For more details or to access the webinar, click HERE.

Mental health training

The Judicial Commission on Mental Health (JCMH) has announced that its Third Annual Judicial Summit on Mental Health will be a virtual event to be held November 9–10, 2020. Summit participants will still receive tools to help them navigate the complex mental health laws, including the first edition of the Texas Juvenile Mental Health and Intellectual and Developmental Disabilities Law Bench Book. There is no fee to participate, but pre-registration is required. Click HERE to visit the event website and register for the virtual summit.

TDCAA coronavirus resources

Remember, all of 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.

Quotes of the Week

“When a team member confronts them that could potentially turn into a violent situation. … We can’t really be the police on this. I was on a phone call and one retailer said that they’ve called the police for their stores 100 times in the last week.”
            —Paul Hardin, CEO of the Texas Food and Furl Association, on gas station and convenience store employees facing unruly customers refusing to wear face coverings.

“[The shooters think] that the cops can’t do anything anymore, that no one likes the police, that they can get away with things, that it’s safe to carry a gun out on the street.”
            —Chief Terence Monahan, NYPD, on why his (and many other) large cities are seeing a dramatic increase in shootings and murders this summer.

“When the cat is away, the mice will play. Drivers will take advantage of that, which leads to bad things.”
            —Sgt. Stephen Woodard, spokesman for the Houston-area office of DPS, on the local increase in high-speed crash fatalities during the pandemic, when fewer speeding tickets are being issued.

“On the one hand, she’s already paid a steep price. That’s not enough of a deterrent to others? Bringing her more misery just seems like piling on. So, if the DA feels the need to pursue charges, he should pursue charges. But he can do that without me.”
            —Christian Cooper, the target of the Amy Cooper, aka the “Central Park Karen,” who falsely called 9-1-1 and claimed that Mr. Cooper (who is black) was threatening her after he asked her to keep the dog on a leash (as required by park rules). After video of the incident went viral, Ms. Cooper (who is white) was fired from her job and widely ridiculed on social media. She is currently charged with false report.

“Were news stories courtroom exhibits, surely many of them would be barred for their prejudicial impact on the jury.”
            —Steve Salerno, professor of media ethics, in his recent op-ed offering “Five Goals for the Restoration of Honest Journalism.” (Tip o’ the hat to Ellis C&DA Patrick Wilson for sharing that article with us.)

“We can make change, but it doesn’t occur by actions like this. We need to sit down together and talk about what we want to change and do it thoughtfully, with consideration, with both sides talking.”
            —Mike Brown, Salt Lake City (UT) Police Chief, referring to protestors who vandalized the local district attorney’s office after it announced no charges would be brought in an officer-involved shooting. [Link above includes video.]

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