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COVID-19 UPDATE No. 7

 Friday, April 17, 2020

The coronavirus pandemic may have slowed most industries, but the sue-the-government business hasn’t skipped a beat. (Ain’t American litigiousness great?) The lawsuits are coming faster than we can count, so we must necessarily pick and choose what we pass along; read on for more details on the ones most likely to affect your daily work.

TDCAA coronavirus resources

Reminder: We are posting all our COVID-19 information—including sample motions and orders, helpful resources, and weekly updates like this one—at https://www.tdcaa.com/covid-19-information/.

#StayHomeTexas (kinda sorta)

At noon today, Governor Abbott held a press conference announcing his plans to re-open the state economy in stages. You can read his online press release here or check your news source of choice for the details about the governor’s new “strike force” and its mission, but don’t bother searching for anything courthouse-related—this was about the medical and economic strategy for letting people out and about, nothing more. The only change of note that might affect you is in Executive Order 17 (EO-17), which amends EO-14’s definition of “essential services” to include “re-opened services,” defined as retail services provided by pick-up or delivery (but no in-store browsing, etc.). However, those retailers don’t get that green light until Friday, April 24. The governor also directed state parks to re-open on Monday, April 20.

The governor has promised more revisions to his existing standing orders by the end of the month (the current statewide disaster declaration (EO-14) expires April 30), and then yet more again in May, but what those changes will be is anyone’s guess at this point.

No room at the inn?

In dual announcements earlier this week, TDCJ declared that it would no longer accept new inmates for the foreseeable future and TJJD confirmed that it would also not accept new juvenile admissions for at least two weeks. The two agencies reached the same point despite the fact that they are in very different positions in regard to the coronavirus spread—TJJD has no confirmed cases while TDCJ has locked down more than 20 prison units after roughly 300 prisoners and 150 staff members have tested positive for COVID-19, including several COVID-19-related inmate deaths, and it is also getting sued in various lawsuits over conditions behind bars. Regardless of those differences, however, the result is the same for counties with paper-ready offenders—the State is not taking them right now.

Judging from the press coverage around the state, most county jails have cut loose so many pretrial detainees that they have the excess capacity needed to absorb those offenders who are overstaying their welcome, so there doesn’t seem to be much wailing or gnashing of teeth from commissioners courts or sheriffs—yet. Note that these decisions were not emergency orders issued by the governor but mere agency decisions, so the State is still on the hook (so far) to reimburse counties for the care and feeding of paper-ready TDCJ-bound inmates who have been waiting for more than 45 days to be picked up. But as with everything these days, that too may change in the future.

Pre-trial release litigation

Court battles continue over the legitimacy or scope of Executive Order 13 (EO-13), the governor’s edict restricting personal bail. Here’s a quick summary of where things stand as of last night.

Harris County
On Tuesday, the chief federal district judge for the Southern District of Texas declined to grant a TRO in what she called a “turf war” over pretrial release decisions in Harris County, citing the Pullman abstention doctrine (and anything else she could latch onto to avoid getting stuck with this hot potato). The opinion also notes that local judges and prosecutors are doing as well as they can under the circumstances when it comes to granting detained offenders individualized pre-trial release determinations. (Kudos to them for that hard work.) You can read the judge’s full memorandum and order here.

Travis County
After a Travis County district court judge issued a TRO last Friday barring enforcement of EO-13, the attorney general got the Texas Supreme Court to stay that judge’s order the following day. The case has been returned to the lower court for further proceedings.

Dallas County
The ACLU filed a federal lawsuit in the Northern District of Texas late last week seeking the pre-trial release of certain “medically vulnerable” offenders in the Dallas County Jail. The attorney general has intervened to oppose the lawsuit, but no further action has taken place to date.

Quotes of the Week

“This is exactly what we predicted, what we were fearful of.”
            —Andy Kahan, director of victim services for Houston Crime Stoppers, referring to arrestees who were released from the Harris County jail over prosecutors’ objections and allegedly committed new crimes.

“Obviously, if you’re not concerned, you’ve got problems. If I could talk to people, I’d say keep your head on. Don’t be crazy. Be nice to your neighbors. We’re in trying times, and people’s true colors are going to shine through.”
            —Neil O’Quinn, Austin gun store customer, in an interview last month.

“A federal district court asked to wade into policy and political disagreements among State and County elected officials is in risky territory. There is no good, clearly safe, constitutionally, and jurisdictionally right solution to many of the short-term problems and disagreements the pandemic has made so acute. And when, as here, these disagreements appear to have been somewhat resolved, at least to the extent necessary to achieve a workable, voluntary process for the safe release of appropriate pretrial, not convicted, arrestees within the present pandemic constraints, that is a powerful reason for a federal court to decline to intervene through the blunt instrument of a temporary restraining order.”
            —Excerpt from Judge Rosenthal’s latest memorandum and order in Russell v. Harris County regarding pretrial detention decisions in that county.

“I believe that we’re going to return to a semi-normal life at the end of May—Memorial Day. But the other thing that I would say is that we have to prepare ourselves to go through a similar exercise in the fall, in the late fall. If you take a look at the 1918–1919 influenza pandemic, and if you take a look at how coronavirus is acting, this is not just the winter and spring of 2020. Probably late November, by December, we are going to go through this again … and we’re going to be smarter and better at doing this. And so, let’s start talking about how we make it through the next seven weeks. But then let’s talk about how we’re going to do it smarter, come the wintertime.”
            —Dr. Janis Orlowski, chief health care officer for the Association of American Medical Colleges, as quoted in a recent interview in POLITICO.

“Oink, oink, piggy, piggy.”
            —Public comment during a Leon Valley city council meeting at which the public could call in on a 1-800 number. (And that’s just what could be printed; other public comments were worse.)

“I, at this point, regret making that decision because I know a lot of people will now say: Why can’t I do that? … [I]t was not a good decision on my part.”
            —Chief Mark McAdams, Williamson County Emergency Services District No. 5, expressing his regret after loaning some firefighter gear to County Judge Bill Gravell so Gravell could be driven by another county employee to visit his grandson on his birthday (and yes, this might be the strangest coronavirus kerfuffle we’ve heard so far).

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

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