TDCAA COVID-19 UPDATE No. 2

March 20, 2020 (updated*)

First off, what’s everyone else doing?

That might be the most common question we’ve received this week. Short answer? Your peers are doing the best they can with what they have, just like you. There are few “best practice guides”—with one exception we’ll provide below—to easily solve all the problems facing the court system at this time, but hopefully some of the information we are sharing will be useful. And if you need to talk about something or simply “think out loud” with someone on the other end of the line, we are here for you. But first, please read the information below.

If you missed our prior pandemic polemic, you can also read that here. We will continue to share information like this on an ad hoc basis going forward, but please check our website for the latest COVID-19 updates before calling—that way we can all start on the same page.

Governor declares public health disaster

Yesterday Governor Abbott declared a public health disaster. The declaration is for two weeks (Saturday March 21 through Friday April 3), subject to modification or extension. It includes various restrictions on in-person gatherings but also provides that “critical infrastructure will remain operational, domestic travel will remain unrestricted, and government entities and businesses will continue providing essential services” (emphasis added, because that’s YOU).

We’ve already received questions about whether or how such an order is to be enforced. As best we can tell from reading Gov’t Code §418.173 (Penalty for Violation of Emergency Management Plan), the governor’s disaster declaration itself may not be enforceable yet. That statute requires the declaration, or the state or local emergency management plan (EMP) of which it becomes a part, to specifically provide for a penalty, but neither the declaration nor the current state EMP does so. (Contrast that with someplace like Travis County, where a separate declaration issued earlier this week does explicitly provide a penalty of up to 180 days in jail or up to a $1000 fine, the maximum provided by statute.) Note, however, the current state EMP is being revised and future versions may include a penalty as described by §418.173. (*UPDATE: As of this afternoon, the new state EMP *does* include a punishment; see page 9 of newest plan.)

Meanwhile, the governor’s declaration incorporates by reference the public health disaster declaration issued by the state’s Public Health Commissioner, Dr. John Hellerstedt, which was also issued yesterday and which imposes various “control measures” under Health and Safety Code Chapter 81 (the Communicable Disease Prevention and Control Act). Violation of those control measures might be a criminal offense under Chapter 81 (ranging from a Class B misdemeanor to a third-degree felony—more on that below). Unfortunately, you’ll find many of the initial control measures to be a bit “loose” as a basis for criminal prosecution, but perhaps that is because they are written with public health—and not criminal prosecution—in mind. (Although if your local sheriff or constable has ever wanted to arrest someone for not properly washing their hands or covering their cough, now might be their chance.) To view a summary of both declarations and for additional links directly to the official language of each proclamation, including the new control measures, click here.

Quarantine enforcement

But wait, there’s more! Now that a public health disaster has been officially declared by the Public Health Commissioner, state and local health authorities may implement additional COVID-19 “control measures,” which could include decontaminations, isolations, or even quarantines. In anticipation of the latter, the Texas Supreme Court has issued an order assigning 31 district judges around the state to hear cases involving involuntary quarantines under H&SC Chapter 81, even those outside their judicial administrative regions. And guess who gets to initiate those actions? That’s right, it’s YOU (as well as your friendly neighborhood city attorney or the attorney general). We at TDCAA are not experts in this area of the law, but we do have some useful resources for you in this regard.

First, there are the aforementioned 31 district judges appointed to hear involuntary quarantine cases. A pair of those judges will be on call each day for any case that arises anywhere in the state. If you find yourself in need of initiating legal action on behalf of your local health authority in regard to a quarantine case, you can contact (a) the presiding judge of your applicable administrative judicial region or (b) Rob Kepple or Shannon Edmonds at TDCAA to find out which district judges are on call that day and how to get in touch with them to begin that process. Note again that under the system set up by the Supreme Court, your local district judges are not going to handle these cases; instead, it could be a judge from several counties away and the proceeding may be by video conference or similar distance technology.

Second, at the request of the Office of Court Administration (OCA), the Health Law & Policy Institute at the University of Houston Law Center has an entire webpage dedicated to “COVID-19 Pandemic Legal Resources for Texas.” That webpage currently includes two short subject matter videos posted earlier this week, and they are currently working on a video webinar specifically for prosecutors (yay!) that they hope to have online later today or this weekend.

That webpage also includes their 120-page 2020 Texas Bench Book, a PDF version of which is available here. That bench book includes a list of Chapter 81 offenses, flow-charts for various processes under that chapter, and sample forms and orders, so be sure to familiarize yourself with it if you anticipate handling one of these cases under H&SC Chapter 81. Word document versions of the legal forms and proposed orders are available for download, editing, and use on their general resource webpage (bottom of left-hand column).

Open meetings

The governor has been promulgating emergency orders at a prodigious rate. One we will highlight here is a recent suspension of the part of the Open Meetings Act that would otherwise require governmental bodies (like a commissioners court) conducting a meeting by phone or video conference to provide a physical space and mechanism for the public to watch or listen. That requirement is now void for the duration of the disaster declaration. For a review of that and other provisions of the Open Meetings Act that have been suspended, click here.

SCOTX/CCA emergency orders

Not to be outdone by their rival executive department, our high courts have been pumping out emergency orders this week like the conveyor belt of chocolates in that famous I Love Lucy episode. Here’s a run-down for you:

  • March 13, 2020: Initial emergency order modifying or suspending various court procedures (effective until May 8, 2020 unless extended) and granting local courts wide latitude to modify or suspend various deadlines and court procedures.
  • March 17, 2020: Second emergency order regarding child custody agreements on Spring Break.
  • March 19, 2020: Third emergency order amending the first emergency order to clarify that judges “must not conduct non-essential proceedings in person contrary to local, state, or national directives, whichever is most restrictive, regarding maximum group size.”
  • March 19, 2020: Fourth emergency order suspending all eviction trials.

What is not included in that list is clear guidance on how to handle problems resulting from the inability or unwillingness of grand jurors to meet, deliberate, and return indictments, especially on serious felony jail cases in which the 90-day clock is about to run under CCP Art. 17.151 (Release Because of Delay). As of now, it appears that the high courts intend for any relief to be granted (if at all) by local district judges on a case-by-case basis under the first emergency order referenced above. The good news is that our friends at the Harris County District Attorney’s Office already went through a similar challenge in the wake of Hurricane Harvey and they have updated a sample motion to extend the deadlines under Art. 17.151 for this pandemic. For a Word document copy of that motion, click here. The ultimate decision will still be up to the discretion of your local district judge(s), but you can assure them that we have anecdotal information of some judges granting similar extensions elsewhere in the state. (Of course, we have also heard that some judges have refused to do so, in which case you might consider having your grand jury forepersons take up their health and safety concerns directly with the district judges who impaneled them.)

UCW during evacuation

Our final item returns to another potential collateral consequence of the governor’s statewide disaster declaration. The first one we told you about earlier this week was the punishment range increases for certain offenses committed during the pendency of that declaration pursuant to PC §12.50 (Penalty if Offense Committed in Disaster Area or Evacuated Area), a statute that was expanded in scope by the most recent legislative session due to events during Hurricane Harvey. However, another Hurricane Harvey-related legislative change involved a new defense to unlawful carrying of a weapon (and related offenses) during a declared disaster. Apparently, some gun advocates are under the impression that the governor’s statewide disaster declaration for COVID-19 has now authorized a form of “permitless carry” in Texas under that new law (enacted by House Bill 1177, aka the “Emergency Carry” bill).

Unfortunately for those wishful thinkers, none of them must have attended our summer legislative update seminars, because if they had, they might remember how we noted that the peculiar language of new PC §46.15(k) only applies to people evacuating from a disaster area or returning to such an area after evacuating; it never mentions someone who shelters in place and does not evacuate, which is what is happening now. And because this current disaster declaration applies statewide but does not include an evacuation order, those eager to test the scope of this new defense will probably have to wait until (God forbid) a more localized natural disaster occurs somewhere else. Keep this analysis in mind in case you start to hear rumors about this in your neck of the woods.

OK, that’s all for now, friends. Keep calm and carry on!

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