TDCAA COVID-19 UPDATE No. 3

Wednesday, March 25, 2020

Where we’ve been

Before we move forward with new COVID-19 information, let’s quickly review what we’ve put out so far:

  • Coronavirus Update #1 (March 16, 2020; click the link to view the full doc): TDCAA meeting and seminar cancellations and postponements; SCOTX/CCA first emergency order; Penal Code §12.50 punishment enhancements.
  • Coronavirus Update #2 (March 20, 2020): Enforcement of governor’s statewide declaration and public health commissioner’s public health disaster declaration; how to enforce quarantine orders; open meetings laws subject to temporary suspension; SCOTX/CCA first through fourth emergency orders; sample motion to extend grand jury deadlines; “emergency carry” (non-)defense during disaster declaration.

If you have a question for us but haven’t already read those two prior updates, please do so before calling or emailing us with a question. We have limited functionality during Austin’s shelter-in-place order and we don’t want you to have to wait on a reply from us when your answer may already be available on our website. Also, consider sharing these updates with your office at large—we are posting them all online under the “Announcements” section of the front page of our website, but not everyone thinks to look on our website before calling us with questions.

Enforceability of disaster declarations and related orders

Almost immediately after last Friday’s Update #2 went out with a notation about the questionable enforcement of the state’s emergency management plan (EMP), the plan was revised to include an enforcement provision as provided by Gov’t Code §418.173. We updated the online version of Update #2 accordingly, but if you haven’t checked it since, be assured that a violation of the statewide disaster declaration and related executive orders are technically enforceable by local law enforcement officials just like any other misdemeanor crime under state law. However, as we’ve previously mentioned, these restrictions and control measures are likely being drafted by health care experts, not criminal law practitioners, so criminal enforcement may not be their first concern when drafting these declarations and orders. For instance, on Sunday the governor issued an emergency order on hospital capacity that may restrict certain elective medical procedures depending on a variety of factors, but we have no existing cases or other legal authority on point with which to interpret the terms and factors used in the order—not to mention the potential constitutional issues related to certain applications of that order—so you may have to iron out the kinks as you go along if you decide to initiate an action related to some of these orders. But the good news is that you can find a list of the various declarations, emergency orders, and waivers issued by the governor at his office’s coronavirus webpage, so it should be easier to keep up with the latest changes going forward.

Meanwhile, many cities and counties are adopting their own disaster declarations, shelter-in-place orders, and the like under Gov’t Code §418.108. If your county needs help in that regard, our friends at TAC have posted some useful resources on their Legal Resources for County COVID-19 Response webpage, including a PDF of a white paper on disaster declarations and emergency orders. Note that §418.108 limits a county judge’s declaration to only seven days’ duration, but the commissioners court can extend the duration of that declaration for any amount of time it determines necessary. Accordingly, some counties are including language that the declaration continues until terminated by either the county judge or commissioners court so that they do not have to approve extensions on an ongoing basis.

We’ve received several questions about enforcing these various disaster declarations and orders. To date, it appears that most local authorities have successfully avoided resorting to arrests—after all, who wants more non-violent people booked into jail right now? But if push comes to shove, a best practice for the enforcement of these orders might be to make sure (a) your local emergency management plan (EMP) contains the maximum penalty range as described by Gov’t Code §418.173, and (b) each order issued by the county lists a specific penalty for its violation, whether that be the maximum authorized under statute or something less, such as a fine-only penalty for more minor violations. Some jurisdictions (such as Travis County) are even providing a cite-and-release option in their latest orders, which is not something contemplated by CCP Art. 14.06(c)-(d), but hey—who’s going to complain about *not* being arrested, right?

PIA deadline waivers

One of the new disaster laws enacted in the wake of Hurricane Harvey was Gov’t Code §552.233 (Temporary Suspension of Requirements for Governmental Bodies Impacted by Catastrophe), which allows local governmental entities to suspend various Public Information Act (PIA) deadlines and other requirements, but *only* if the entity provides the necessary notice of the Office of Attorney General (OAG). All the forms and instructions for doing so are available this OAG webpage, and if you have questions about the process you can call their Open Government hotline number (877/673-6839), so please be sure to check that out if you need relief from current PIA deadlines.

Indictment deadline extension

Again, if you need to extend the 90-day deadline under CCP Art. 17.151 (Release Because of Delay), we have a sample motion and order on the front page of our website.

SCOTX/CCA emergency orders

For a list of all the high courts’ emergency orders related to COVID-19, as well as related guidance, visit Court Procedures for the 2019 Novel Coronavirus (COVID-19) on the Office of Court Administration’s website. The most recent additions to that page include a primer on using Zoom and YouTube to host and stream court proceedings.

CLE extensions

Our friends at the State Bar (SBOT) finally got around to granting attorneys with recent or impending birthdays an automatic 30- to 60-day extension on completing their annual MCLE requirements. For details, see Monday’s edition of SBOT’s Coronavirus update on the Texas Bar Blog, and check out SBOT’s Response to Coronavirus Pandemic for related resources and updates.

Remember, until our next update, keep check our website and Twitter feed for the latest COVID-19 news that might affect you.

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