Posted: April 24, 2020
The only lead-pipe-cinch prediction we will make during this coronavirus pandemic is that state and local leaders will re-open barber shops and hair salons before they start to look like a model from a 1970s-era Sears catalog. Social media is forever, and no one wants those images floating around come campaign time, do they?
TDCAA coronavirus resources
This week, we have added the following COVID-19 resources and information to our website:
- Harris County’s successful CCP Art. 16.16 emergency motion to increase bail (including a link to background on the specific case in which it was granted)
- Revised sample forms from Galveston County for the testing of persons for communicable diseases, including a handy guide for the process
Remember, all our COVID-19 resources—including sample motions and orders, helpful information, and weekly updates like this one—are available at https://www.tdcaa.com/covid-19-information/.
As we told you last week, today is the day Executive Order 17 (EO-17) authorizes retail services provided by pick-up or delivery (but no in-store browsing, etc.). The governor has promised more revisions to his existing standing orders on Monday, ahead of the April 30 deadline for the current statewide disaster declaration (EO-14) to expire. We expect that new statewide order to purport to overrule any local emergency orders that are more restrictive. How that will all be hashed out remains to be seen, but hey, it won’t be the first time y’all have had to dance to that tune, will it?
In related news, the attorney general’s and governor’s offices jointly issued guidance for houses of worship earlier this week which seemed as much directed to local governments as it did churches and synagogues and the like. In the memo, those state officials recommend various health and safety measures for houses of worship to consider—including conducting services remotely—but the memo also includes a veiled warning against any local emergency order or enforcement action that closes down a church or prohibits people from worshipping in person. While this memo does not have the force of law like the executive order on which it is based (Executive Order GA-16), it does make crystal clear on which side of a court action those two state officials will weigh in should it come to that.
Gentlemen, stall your engines!
In the Office of Court Administration’s latest “Court Operation Guidance” update issued last Friday, the state’s two high courts recommend against holding any in-person court proceedings “of any size” until at least June 1, and further recommend that all in-person participants in any “essential” court proceedings wear face coverings and observe social distancing best practices. Our bet is that any relaxation of social distancing in the future will come with recommendations (or perhaps requirements?) to wear face masks in court at all times, so if you haven’t started shopping for face coverings that match your other courtroom attire and accessories, now is the time to visit Etsy.com to beat the crowd.
On a related note, we have received some questions about the use of video-conferencing technology for “virtual” grand jury meetings. We don’t have a good answer to those questions, but we do think that anyone exploring that option needs to beware of the dangers of violating CCP Art. 20.01 (Grand Jury Room) or CCP Art. 20.02 (Proceedings Secret) or ignoring the concerns addressed by CCP Art. 20.151 (Certain Testimony by Video Conferencing). The technology certainly exists to hold a grand jury proceeding virtually, but the real question is whether such an indictment will survive scrutiny later.
Pre-trial release litigation
Yesterday, the Texas Supreme Court granted a mandamus action striking down a Travis County district court judge’s TRO against application of Executive Order 13 (GA-13), the governor’s edict restricting personal bail, at least to the extent it applies to local judges’ bail decisions. The high court did not decide the case on the merits, but instead found that the plaintiffs—who were Harris County trial judges (plus the NAACP and various criminal defense lawyer associations), not actual inmates—lacked standing to contest the emergency order. As a result, the issues raised by that lawsuit will have to await another action brought by a jailed offender, not judges or lawyers. For a preview of that next fight (wherever that might be), you can read the mandamus order and various briefs on separation of powers, disaster authority, and the like here.
Litigation also continues in Dallas, where the ACLU filed a federal lawsuit on behalf of several jail inmates who seek their release due to coronavirus fears. The court was still taking testimony yesterday afternoon, and any resulting order may be limited in scope to conditions in that county jail, but we will pass along anything of statewide interest if it happens.
Medical drama ends
For those of you who have lost track of the flurry of litigation over Executive Order No. 9 (GA-09) (delay of unnecessary medical procedures) and how it impacts abortion, the good news is that you don’t have to get caught up because it’s over. (Who says procrastination isn’t useful sometimes?)
On Wednesday, the State told the federal courts that Executive Order 15 (GA-15) effectively ended the controversy. That order went into effect on Tuesday and loosened the restrictions on certain medical procedures previously prohibited by GA-09 in a manner that allows abortion providers to resume their business. However, the last full opinion issued by the Fifth Circuit regarding GA-09 (known as Abbott IV, available here) contains at least two interesting items to pass along before we turn this page:
- First, the court granted relief to the governor and attorney general under the 11th Amendment (Sovereign Immunity Clause) because it found both state officials lack the required connection to the enforcement of GA-09 required for injunctive relief to be issued. But you know who does have that required connection? If not, turn to the nearest mirror for your answer, and then keep that answer in mind next time you hear about litigation on this topic.
- Second, the Fifth Circuit re-emphasized its belief that the federal courts should defer to non-judicial authorities when crafting “measures responsive to a public health emergency” and should limit their judicial review to asking only whether those state and local authorities’ responses are “arbitrary” or “unreasonable.” Keep this deference in mind when considering other pandemic-related litigation, such as the various lawsuits over pre-trial jail release or mask ordinances.
TDCAA training update
We are continuing to revise our upcoming training schedule in response to the limitations enforced upon us by the pandemic and related emergency orders. As a result, we regret that we must announce the cancellation of our regional Mental Health Conferences in Houston and Rockwall in June. We must also postpone our 2020 Advanced Trial Advocacy Course at Baylor Law School to August 2021. But on the brighter side of the news, we will soon be opening online registration for our Prosecutor Trial Skills Course (Austin, July 2020), and our Annual Criminal and Civil Law Conference is still scheduled for September 2020 in South Padre Island.
We also hope to start rolling out some high-quality online CLE offerings by this time next month! We appreciate your patience as we work hard to make sure everything we produce continues to meet the high standards you have come to expect from TDCAA trainings. After all, when it comes to seminar productions—especially visual ones—we always try to follow the legendary Orson Welles’ advice.
For the latest seminar information, check out our full training calendar here.
Quotes of the Week
“[T]he executive branch cannot criminally prosecute judges for deciding cases based on what they understand the law to be. We appeal judicial decisions we don’t like; we don’t jail the judges. Nor can one judge file a lawsuit against the executive branch that asks another judge to clarify the rule of decision the plaintiff judge should apply in his or her courtroom, as the judicial plaintiffs have done here.”
—From SCOTX’s per curiam opinion in the Travis County litigation over GA-13, the governor’s order limiting certain pre-trial releases on personal bond.
“Do you think I am going to stultify myself here against the wishes of 99½ percent of the doctors; against the officials of the army and navy? The people felt a great relief when the masking ordinance was put in effect. … We should give our minds to serious matters instead of fighting the little inconvenience occasioned by the wearing of a mask for the protection of the general public.”
—James Rolph, San Francisco mayor … as quoted in 1919, when a local “anti-mask” league opposed their mandatory use in that city, which was hit hard by the 1918 flu pandemic.
“It is on and popping. People can’t deal with each other under normal circumstances. Can you please tell me how the hell they’re going to deal with each other while everybody’s locked down? … You ever see Rocky 3? What Clubber Lang says when asked about his prediction for the fight? ‘Pain.’ My prognosis is grim for all of this.”
—Trent Redman, an attorney in West Virginia, when asked to give his prediction for family law actions in post-pandemic courthouses around the country.