Friday, October 9, 2020

The thing about an “October surprise” is, it’s a surprise. If you saw it coming, it wouldn’t be a surprise.

Drink ’em if you got ’em

The governor issued an executive order further expanding the scope of business activities throughout most of the state to 75 percent of capacity starting next week. However, Executive Order GA-32 might be most notable for finally authorizing bars to offer on-premises services at 50 percent of capacity as of Wednesday, October 14—but only if the county’s hospitalization rate is below a certain threshold and the local county judge also consents and files the appropriate paperwork with TABC, who will be asked to police the issue. As of this morning, only one of the county judges in Texas’ ten largest counties indicated he would give his consent, but it’s still early in the process. If your county judge wants to go down that path, visit TABC’s new webpage dedicated to this topic for more information.

The rest of GA-32 appears consistent with past recent edicts from Austin, but you can read the full text by clicking on the link above for all the details.

What will a #txlege session look like?

Back in August we described how the coronavirus has impacted the legislature during its interim and then took a swing at predicting how it might impair the legislative process during the 87th Regular Session that starts in January 2021. As that session approaches—and it’s now less than 100 days away—those details are becoming increasingly important yet not any clearer. The situation is also complicated by an absence of leadership from the next House Speaker because … well, no one knows who that person will be. Add that complication to the prospect of having to tackle a budget deficit, record unemployment, a still-raging pandemic, and political and social unrest, and it would appear that the Fates are brewing up a nasty caldron of legislative gruel for everyone in 2021.

As for logistical specifics, the most extreme scenario would be that one or both legislative chambers remain closed to the public, press, and lobbyists, there will be strict limits on what or how many bills can be filed, and the legislature will tackle only the narrowest and most pressing of issues—such as the state budget, redistricting, and agency sunset continuations—and punt the rest to later in the year (or perhaps even 2022). That doomsday scenario seems unlikely, but more will be known in the next few months. Certain standing committees have volunteered to serve as guinea pigs and experiment with holding interim hearings online. That will kick off with some Senate education-related committee hearings next week during which only online video testimony from invited witnesses will be accepted; no one other than legislators and staff will be permitted in the hearing room. If works out, look for other committees to begin experimenting after the November elections with online or hybrid hearings that would permit certain invited witnesses to appear in person. After that, the future is anyone’s guess—although with the House announcing that a capitol staffer tested positive for COVID-19 earlier this week, this process will almost certainly be a two-steps-forward-one-step-back kind of thing.

Regardless of circumstances on the ground, however, the calendar marches on. Despite the lack of interim hearings and the fact that many legislative staffs are months behind where they would normally be at this stage of an interim, bill filings will still begin the Monday after next month’s election. For more insight into these unknowns, we recommend this recent article from the Texas Tribune. It’s still entirely speculative, but at least it shows that we are not the only ones in the dark about the future!

Guns in courthouses

After years of litigation, it looks like we might finally have some clarity on the authority of cities and counties to exclude handguns from their public courthouse complexes.

Last week, a Travis County district court granted summary judgment in favor of Waller County, which was being sued by the Attorney General over its courthouse no-gun policy and related signage. If you recall, much of the confusion over this issue was created by inexact bill drafting which the Lege subsequently refused to fix, hoping instead that the courts would do it for them—and perhaps they finally have. You can read more about the court decision in this Houston Chronicle article while we wait to find out if the ruling will be appealed by the AG.

Mental health law conferences

There will be two opportunities to get free training on mental health issues next month.

The Texas Judicial Commission on Mental Health will host its 3rd Annual Judicial Summit on Mental Health on November 9­‑10, 2020. The program will be offered online and is free for those who pre-register. More details are available HERE.

The Texas Tech Law Review is hosting its biennial Mental Health Law Symposium via Zoom on November 20, 2020. This MCLE program is free, but attendees must pre-register online. For more details, click HERE.

TDCAA coronavirus resources

All our COVID-19 resources—including sample motions and orders, helpful information, and past updates like this one—are available HERE. If you find or create something useful that you’d like to share with your peers, send it our way!

Quotes of the Week

“I don’t understand why they think the citizens of Texas are idiots when they elect us, but geniuses when they elect them. The voters can turn us out of office if they don’t like what we’re doing.”
            —Tarrant County Judge Glen Whitley (R), referring to certain statewide officials in Austin who have criticized various actions taken by local government officials.

“The Charlottesville attack, it killed one person, but it stuck in everybody’s mind because you have the spectacle of bodies flying. It’s catchy. And that’s what a lot of extremists pursue. It terrorized people.”
            —Lorenzo Vidino, director of George Washington University’s Program on Extremism, in an article exploring the use of motor vehicles as deadly weapons during protests.

“Never has the atmosphere, the environment, been better for true criminal justice reform [and] police accountability.”
            —State Sen. John Whitmire (D-Houston), chairman of the Senate Criminal Justice Committee, when asked how high-profile events like the death of George Floyd would impact criminal justice legislation in the upcoming session. Among the reforms mentioned as priorities by him and State Rep. Garnet Coleman (D-Houston), chairman of the House County Affairs Committee, at a recent Texas Tribune Festival panel discussion were banning pretext traffic stops and arrests for most Class C misdemeanors.

“I think we’re headed for a special session on redistricting regardless.”
            —State Rep. Phil King (R-Weatherford), chairman of the House Redistricting Committee, noting that the federal census data needed by lawmakers to re-draw political maps is not expected to arrive until June 2021, after the 87th Regular Session must adjourn.

“Opening bars does not mean that COVID-19 is no longer a threat, and most Texans are still susceptible to the virus. As bars and similar businesses begin to open, we all must remain vigilant and show personal responsibility to protect ourselves and our loved ones.”
            —Governor Greg Abbott (R), announcing his decision to allow bars to re-open in certain counties.

“We suspected all along that something fishy was behind the AG’s intervention in our case. There is no legitimate reason why they would be helping Mr. Paul’s companies at the expense of a charity.”
            —Ray Chester, Austin lawyer, in an article exploring one of the many examples now coming to light of Attorney General Ken Paxton (R) taking unusual actions that benefitted Austin real estate mogul Nate Paul. (Those stories are coming faster than we can follow them, but this tweet thread includes four of them from the Austin American-Statesman this week.)

“This office’s continued use of the criminal process, in a matter already determined to be without merit, to benefit the personal interests of Nate Paul, is unconscionable.”
            —Excerpt from an email to Attorney General Paxton by several of his senior employees, as reported in a recent Houston Chronicle story.