Thursday, April 30, 2020
Since the news continues to be all-coronavirus-all-the-time, we will roll our usual end-of-the-month interim legislative update into this weekly COVID-19 update (with one or two non-pandemic items at the end). #TwoBirdsOneStone
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 “built a better mousetrap” in response to the pandemic, consider emailing it to Shannon to share with your peers! We have re-organized the format of our curated COVID-19 page to make it more user-friendly, so check it out if you need some help.
#StayHomeTexas makes way for #OpenTexas
The governor has allowed his statewide stay-at-home order to expire as of midnight tonight and replaced it with three new executive orders that take effect tomorrow. The new orders are Executive Order GA-18 (re-opening of various retail and food services across the state), Executive Order GA-19 (restrictions on certain hospital services to maintain COVID-19 capacity); and Executive Order GA-20 (lifting restrictions on travelers from Louisiana but continuing restrictions on travelers from the states of CA, CT, NJ, NY, and WA, and the cities of ATL, CHI, DET, and MIA). And for those seeking extra credit, there is also a glossy 64-page manual called “Texans Helping Texans” that you can read for medical recommendations and health and safety guidance on implementing the orders—although not in ways that are very useful for enforcement.
From an enforcement perspective, GA-18 will be of primary interest. That order is in effect from May 1–15, 2020, and while it represents a change in social media hashtags (see the heading for this section), it maintains much of the same basic structure as the order it replaces. For instance, GA-18 still says that everyone in the state “shall” minimize social gatherings and in-person contact with non-household members (under pain of criminal prosecution), yet it has a new, expanded laundry list of exceptions. Among the enterprises that may open for business under GA-18 are:
- “Essential services” and religious services (like the previous order)
- “Re-opened services” to include retail stores, restaurants, and movie theaters, if phased in according to GA-18’s limits (25% of occupancy limit to start, or 50% occupancy if in a county with five or fewer confirmed COVID cases, with possible expansions later if infection rates decline)
- “Services provided by an individual working alone in an office” are now OK—whatever that means
- Golf courses (fore!)
- Local government operations (lucky you)
However, businesses and entities that must explicitly remain closed under GA-18 include:
- Nursing homes, assisted living facilities, etc. (for visitors)
- Bars, gyms, public swimming pools, bowling alleys, arcades, massage parlors, tattoo studios, piercing studios, and cosmetology salons
In addition, under GA-18 the governor reserves the right to shut down re-opened services in any county that sees a COVID-19 flare-up.
That tough talk aside, GA-18 undermines local emergency orders in several ways. For instance, while people are encouraged to wear face coverings, the order says that “no jurisdiction can impose a civil or criminal penalty for failure to wear a face covering.” The order also says it “shall supersede any conflicting order issued by local officials” that restricts services allowed by GA-18 or allows gatherings or services prohibited by GA-18. As with his past statewide orders, the governor has purported to accomplish this by suspending the statutes authorizing those local emergency orders “to the extent necessary to ensure that local officials do not impose restrictions inconsistent with the executive order.” (And we suppose that will continue to be the case until a court says otherwise.)
What does it all mean?
We continue to believe that local public safety officials who approach these health and safety issues primarily as a criminal justice issue are setting themselves up for disappointment. Yes, it is technically true that a violation of GA-18 or similar local orders may carry criminal penalties, but against whom? At least at the state level, the plain language of the emergency orders appear to be directed more at business patrons, not business owners or operators (see, e.g., “[E]very person in Texas shall … minimize in-person contact with people who are not in the same household”; “People shall avoid visiting bars, gyms, ….”). Furthermore, when asked about enforcement at his press conferences, the governor has repeatedly mentioned regulatory actions among the possible options. After all, many businesses are subject to registration, licensure, or inspection by your local health authorities or state agencies like the Department of State Health Services (DSHS) or the Department of Licensing and Regulation (TDLR), so consider enlisting their help when appropriate.
Keep in mind as well that GA-18 has a duration of only two weeks, after which we can expect a further loosening of restrictions (assuming this first phase doesn’t result in a rash of new COVID-19 patients). Remember to weigh that when deciding how to react to a situation that may violate an emergency order today, but not tomorrow—especially since any formal criminal action will not be resolved for many weeks or months. But ultimately, you are in the best position to know what your local community thinks is best for your local “bad actors.”
SCOTX renews orders
On Monday, Chief Justice Hecht issued a Twelfth Emergency Order renewing, clarifying, and amending past emergency orders from the Texas Supreme Court. Among the clarifications and changes, this latest order:
- allows (but does not require) grand jurors to participate in grand jury proceedings by video;
- repeatedly encourages, cajoles, and darn near threatens judges to stop holding in-person proceedings that violate OCA guidance on social distancing, group size, and other precautions; and
- extends certain civil statutes of limitation and attorney professional discipline deadlines and MCLE deadlines to July 15, 2020.
As for the change to grand jury procedures, while this latest emergency order may provide grand juries a dispensation from having to meet in a grand jury room as specified by CCP Art. 20.01, it does still not address issues relating to secrecy, confidentiality, and the like, nor do we have easy answers to any of those questions. So, as we like to say in these situations … good luck with that!
Pre-trial release litigation
After a week-long hearing, a federal district court judge denied the TRO requested by the ACLU seeking the release of certain “high risk” inmates in the Dallas County Jail. (Her opinion is still not public, but if it is of general interest, we will share that final product when it is available.) That was the last active lawsuit we know of related to the scope of Executive Order GA-13 (jail and bail procedures), so barring future challenges, it appears that the federal courts have decided to punt on those issues while our state’s high courts are waiting on a true party in interest to raise relevant concerns about the source or scope of the authority claimed in that emergency order.
Ethics input wanted
The Professional Ethics Committee for the State Bar of Texas is accepting public comments on the following question:
Proposed Opinion 20-2 (Revised): Whether a lawyer who represents a defendant in a criminal matter violates the Texas Disciplinary Rules of Professional Conduct if, after receiving tangible evidence from the lawyer’s client, the lawyer does not reveal the existence of the evidence until trial and refuses to allow the prosecuting attorney to inspect the evidence until the court orders the lawyer to do so.
As of now, the proposed opinion would find that concealing that kind evidence from the State is permissible. Go to texasbar.com/pec to read the proposed opinion and provide comments if you disagree with that conclusion.
Quotes of the Week
“We are going to have to look at all these emergency powers and see if they have to be scrubbed down.”
—State Sen. Paul Bettancourt (R-Houston), as quoted in a story about promises by some GOP state legislators to try to reign in local governments’ emergency powers next session.
“If [businesses] ask you to wear a mask, you must wear a mask, and if you fail to leave the premises, you are subject to a criminal trespass warning or a criminal trespass arrest.”
—Houston Police Chief Art Acevedo, explaining how a lack of face coverings will be handled in that city after the governor effectively overruled a local mask ordinance.
“Whoever is caught on the street will learn how to respect the measure. We want the best for the population. If the government is unable to manage, organized crime resolves [to do so].”
—WhatsApp message from a Brazilian street gang threatening to enforce a government curfew in one of Brazil’s many favelas (slums); across the globe, organized crime groups are enforcing coronavirus measures to protect themselves and their markets.
“If we get to the point where there’s rapid testing, then they could set up roadblocks and run a spot-test and turn around people who are sick. But in the absence of that, these roadblocks are way overbroad and are interfering with the right to travel.”
—Meryl Chertoff, adjunct professor at Georgetown Law School, questioning the constitutionality of state-entry roadblocks like the one Texas had set up along the Louisiana border (until today).
“You can’t produce it, you can’t refine it, and you can’t sell it. That ain’t a good situation to be in.”
—Catherine Reheis-Boyd, president of the Western States Petroleum Association, discussing the current state of the oil industry in a NY Times article highlighting the current and future economic problems facing the Houston area.
“How do you preserve secrecy [through Zoom], and how do you prevent juries from engaging in misconduct like conducting their own investigations? I don’t think the framers of the Constitution had foreseen this situation we would be in, that we would be judging someone’s guilt or innocence by electronic means.”
—Bexar County Criminal DA Joe Gonzales, discussing jury trial delays caused by the coronavirus.
“Open your business. They can’t put us all in jail.”
—Shelley Luther, owner of Salon a la Mode, a hair salon in Dallas that Luther is refusing to close despite receiving a citation and a court order to do so.