Court Operation Guidance
Since my last update, the number of presumptive positive COVID-19 cases reported by the Department of State Health Services (DSHS) in the state has risen from 143 to 1,396 (as of 11 am). Texas has been able to test 21,424 individuals so far, up from 2,335 as of last week. You can follow updated statistics on Texas cases on a newly established DSHS website. DSHS continues to anticipate that the number of cases will increase, and more cases will be identified as testing expands. Since the last guidance issued last week, many cities and counties have issued “Stay Home – Stay Safe” or shelter in place orders restricting movement of residents. This impacts court proceedings and court participants, which is discussed below.
New Emergency Orders Issued by Supreme Court (All orders expire May 8, 2020, unless extended by the Chief Justice of the Supreme Court)
Please be aware of the emergency orders issued since our last guidance:
- Fifth Emergency Order (Issued March 20) – tolls all deadlines, whether prescribed by statute, rule, or order, related to attorney professional disciplinary and disability proceedings (retroactive to March 13)
- Sixth Emergency Order (Issued March 22) – requiring online only election for the 2020 elections for president-elect and directors of the State Bar of Texas and Texas Young Lawyers Association; extending voting period to May 29, 2020, at 5:00 pm.
- Seventh Emergency Order (Issued March 24) – clarifies that existing trial court orders control when determining a person’s right to possession of and access to a child in a Suit Affecting the Parent-Child Relationship and that possession of and access to a child is not affected by any shelter-in-place order or other order restricting movement issued by a government entity. Permits parties to alter possession by agreement if allowed by the court order(s) and courts to modify their orders on an emergency basis or otherwise.
“Stay Home – Stay Safe” and Shelter in Place Orders
With many counties and cities issuing stay-at-home or shelter-in-place orders, courts and clerks have inquired how the orders apply to them. Most, if not all, of these orders provide an exception for essential governmental functions, which includes the operation of courts and clerks’ offices. Judges, clerks, and court staff should lead by example by working in ways that, for themselves, staff, litigants, and others, allow social distancing, avoid groups larger than permitted by local and state authorities, and encourage hand-washing and sanitary practices throughout the workplace. Judges, clerks, and court staff should consider alternatives to in-person meetings, should telework and require staff to telework whenever possible, and should minimize office operations. Judges, clerks, and court staff should not engage in activities merely for convenience or personal preference when other means, such as telephone, tele- or video-conferencing, and online proceedings, are available.
But judges, clerks, and court staff must also be permitted to conduct court proceedings free from local stay-at-home orders and other restrictions on travel and business practices. Judges, clerks, and court staff may travel and engage in activities reasonably necessary to conduct court proceedings as permitted for other essential services. Judges, clerks, and court staff may travel to and attend court proceedings and perform other related court and clerk operations. Stay-at-home and similar orders do not prohibit such travel and activities involved in these duties as long as every effort is made to avoid risks to the public health.
Similar guidance and a travel authorization letter has been issued today by the Office of Court Administration for lawyers and their staff.
Guidance on Conducting Proceedings
- The Supreme Court and Court of Criminal Appeals Third Emergency Order has prohibited conducting non-essential proceedings in person contrary to local, state, and national directives, whichever is most restrictive, regarding maximum group size. The limitation on group size would apply the local stay-at-home or shelter in place order standards to court proceedings.
- OCA recommends that you delay in-person proceedings of any size until at least May 8.
- Essential proceedings should occur in-person only if:
- Holding the proceeding remotely is not possible or feasible;
- No more than 10 persons are gathered in the courtroom or in areas around the courtroom (see exception below); and
- Participants in the courtroom are separated consistent with social distancing and other precautions.
- EXCEPTION: Essential proceedings may occur in-person in excess of the 10 person maximum if the law requires more than 10 persons for the proceedings, such as grand jury deliberations.
- No non-essential proceedings should be held in-person.
- With the introduction of the new remote proceedings capability through Zoom, most non-essential proceedings, except for jury trials, can be conducted remotely, and there are no limitations on those proceedings so long as reasonable notice and access is provided to the participants and the public.
Additional Duties Assigned to Regional Presiding Judges During Pendency of Emergency Orders
On Monday, Chief Justice Nathan L. Hecht assigned to the 11 Regional Presiding Judges of the Administrative Judicial Regions, pursuant to Section 74.046 of the Texas Government Code, additional duties as follows:
- Ensure that all courts in each region are operating consistent with executive directives and in full compliance with the Courts’ Orders;
- Ensure that all trial court judges in each region, including justices of the peace and municipal court judges, do not conduct in-person hearings inconsistent with the Courts’ Orders or the latest guidance for limiting court proceedings issued by the Office of Court Administration;
- Assist the trial court judges in each region in determining what proceedings are essential and admonish those who are not in compliance with the Courts’ Orders or executive directives;
- Report to [his] office any proceedings that are being conducted in the regions – and the court in which the proceedings are being conducted – that are inconsistent with the Courts’ Orders and executive directives; and
Assist each region’s local governments and courts to ensure that courts have the ability to conduct essential business at the courthouse or other locations.
Open Courts & Public Trial Requirement of the U.S. and Texas Constitutions
Please remember that court proceedings are required to be open to the public (Art. 1, Section 13, Texas Constitution) and that in criminal proceedings, defendants are entitled to a public trial (6th Amendment, U.S. Constitution; Art. 1, Section 10, Texas Constitution). Therefore, courts should ensure that all proceedings are accessible to the public during the proceedings unless the judge closes the courtroom to the public pursuant to relevant statutory provisions and caselaw providing guidance on closing courtrooms to the public.
If a court is holding proceedings remotely, the “virtual courtroom” is subject to the same provisions as physical courtrooms. Courts considering closing courtrooms, either physical or virtual, should:
- Close the courtroom to the public only to the degree necessary;
- Make specific findings (on the record in a court of record) regarding the need for closing the courtroom; and
- Make specific findings that there is no less restrictive alternative than closing the courtroom.
Note: The Zoom application provides the capability to livestream proceedings on YouTube (recommended) and Facebook. See Court Guidance No. 3 issued March 19, 2020, below for more information regarding Zoom.
Remote Proceedings Capability Available Using Free Tool from OCA
OCA continues to provision licenses to courts for Zoom, and almost 800 judges are already registered. Just this week, judges have conducted over 1,000 separate court proceedings through Zoom with over 7,000 participants. You can view many courts’ livestreams by checking out our YouTube Channel Directory. Once you submit the request for a new account, you should receive an account in no more than 24 hours, as well as instructions on how to proceed with set up.
To assist judges, clerks, and court staff with conducting remote proceedings, OCA has set up a resource page. The resource page provides access to a recording of a webinar delivered earlier this week, written instructions, video tutorials, and other information to assist you.
Child Protection Visitation
Many courts handling CPS cases have suspended hearings, procedures, deadlines, and notably in person family visitation. Most, if not all, orders issued so far require the Department of Family and Protective Services (DFPS) to provide family and sibling visitation by alternate methods such as Skype, FaceTime, or the like.
When considering what virtual communication options are most accessible to the parties in a CPS case, judges should refrain from ordering that such contact occur via a specific type of technology. Computer-based options may be less available to parents than to professionals and foster parents with access to laptops, tablets, and/or Wi-Fi. Judges may also consider whether virtual visits could increase in duration or frequency since children may not see their parents in person for an extended period of time. Contact with and communication from parents may help children in foster care address their fears about what is happening in their lives such as school closures and disruptions in routine.
Email Service and Notice
Because of uncertainty regarding the feasibility of accessing documents delivered by mail, commercial delivery service, fax, or such other similar methods during the COVID-19 pandemic--particularly as so-called shelter-in-place orders take effect and large numbers of people are working from home--email service should be used, whenever feasible, as an additional or alternative method of service. Courts are also advised to use email as an additional or alternative method of notifying parties of orders, judgments, and the like, when possible.
Setting and Reviewing Bail
Earlier this week, the U.S. Centers for Disease Control and Prevention issued “Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities.” In addition to recommending that jail officials “coordinate with court officials to identify lawful alternatives to in-person court appearances, such as virtual court…to reduce the risk of COVID-19 transmission,” the guidance details the increased risks of transmission of COVID-19 in jail and detention facilities and provides other recommendations to reduce risk of transmission in an effort to “ensure continuation of essential public services and protection of the health and safety of incarcerated and detained persons, staff, and visitors.”
The Texas Judicial Council has long recommended that judges should use all available information, including a pretrial risk assessment, if available, to consider the risk to the community and the victim of releasing the arrestee and the risk of flight and that judges should set bail appropriately so that individuals who do not pose a significant risk to the community/victim or a significant risk of flight are not detained. On the other hand, the Council has also recommended that individuals who do pose a significant risk to the community/victim or of flight should be detained. Such determinations must be made on an individual basis considering all information available about the arrestee, his/her criminal history and current charge, and other relevant factors. Especially in this pandemic, with the health risks to arrestees and their families and communities, and the burdens on communities from increased detentions due to necessarily suspended jury trials and court proceedings, judges considering bail decisions on new arrests and reviewing bail decisions on incarcerated pretrial inmates must:
- Set bail and review it (subject to certain limitations if set by another judge) throughout the pendency of the case, subject, of course, to statutory provisions such as Art. 17.091, Code of Criminal Procedure, which requires that before a judge or magistrate reduces the amount of bail set for a defendant charged with an offense under Arts. 42A.054, 62.001(5), Code of Criminal Procedure, or under Section 20A.03, Penal Code, the judge or magistrate is to provide reasonable notice of the proposed bail reduction to the prosecutor and, on the request of the prosecutor, the defendant, or the defendant’s counsel, an opportunity for a hearing on the bail reduction.
- Determine bail on an individualized determination for each defendant considering the factors set out in statute. Art. 17.15, Code of Criminal Procedure, sets out the considerations for setting the amount of bail, as follows:
- The bail shall be sufficiently high to give reasonable assurance that the undertaking will be complied with.
- The power to require bail is not to be so used as to make it an instrument of oppression.
- The nature of the offense and the circumstances under which it was committed are to be considered.
- The ability to make bail is to be regarded, and proof may be taken upon this point.
- The future safety of a victim of the alleged offense and the community shall be considered.
- Detain no person longer than necessary as determined by the statutory factors.
Thank you for your continued efforts during this challenging time. As I said earlier this week, I couldn’t be prouder to be a part of the Texas Judicial Branch than I am right now.
Since the last update, the number of presumptive positive COVID-19 cases reported by the Department of State Health Services (DSHS) in the state has risen from 25 to 143 (as of noon). Texas has been able to test 2,335 individuals so far. DSHS continues to anticipate that the number of cases will increase and more cases will be identified as testing expands. Today, Governor Abbott and DSHS Commissioner Hellerstedt declared a public health disaster, and Governor Abbott issued executive orders directing every person in Texas to avoid social gatherings of more than 10 people; to avoid eating or drinking at bars, restaurants, and food courts, or visiting gyms or massage parlors; prohibiting visiting nursing homes or retirement or long-term care facilities; and closing all schools temporarily. The executive orders are effective at midnight tomorrow and continue through April 3, unless extended.
New Emergency Orders Issued by Supreme Court and Court of Criminal Appeals (All orders expire May 8, 2020, unless extended by the Chief Justice of the Supreme Court)
Please be aware of the emergency orders issued since our last guidance:
- First Emergency Order(Issued March 13) – Permits all judges in the state at their discretion, and requires all judges “to avoid risk to court staff, parties, attorneys, jurors, and the public”, without a participant’s consent:
- To modify or suspend any and all deadlines and procedures prescribed by statute, rule, or order for a stated period ending no later than 30 days after the Governor’s State of Disasterhas been lifted. NOTE: The Third Emergency Order (see below) clarified that this applies to all proceedings under Subtitle E, Title 5, of the Family Code (Child Abuse and Neglect Cases), and specifically to deadlines in Section 263.401 (dismissal deadlines in termination cases filed by the government).
- Allow or require anyone involved in any hearing, deposition, or other proceeding of any kind – including a party, attorney, witness, or court reporter, but not a juror – to participate remotely, such as by teleconferencing, videoconferencing, or other means (see below on OCA-provided tool).
- Consider as evidence sworn statements made out of court or sworn testimony given remotely, out of court, such as by teleconferencing, videoconferencing, or other means.
- Conduct proceedings away from the court’s usual location, but in the county of venue, and only with reasonable notice and access to the participants and the public. NOTE: Third Emergency Order strikes the requirement that the proceeding must be conducted in the county of venue but still requires notice and public access.
- Require every participant in a proceeding to alert the court if the participant has, or knows of another participant who has, COVID-19 or flu-like symptoms, or a fever, cough, or sneezing.
- Take any other reasonable action to avoid exposing court proceedings to the threat of COVID-19.
- Permitting judges to extend the statute of limitations in any civil case for a period ending no later than 30 days after the Governor’s state of disaster has been lifted.
- Second Emergency Order(Issued March 17) – Clarifies that child possession schedules establishing access to a child under a court-ordered possession schedule are not affected by the school’s closure that arises from an epidemic or pandemic and that the original published school schedule controls.
- Third Emergency Order(Issued March 18)
- Modifies First Emergency Order as described above.
- Prohibits judges from conducting non-essential proceedings in person contrary to local, state, or national directives, whichever is most restrictive, regarding maximum group size.
- Governor Abbott’s Executive Order limits groups to 10 or less, so courts should not schedule any in person proceedings that would cause more than 10 people to gather in a courtroom or area in the courthouse. Proceedings that are conducted remotely have no limit.
- Examples of essential functions include: criminal magistration proceedings, CPS removal hearings, temporary restraining orders/temporary injunctions, juvenile detention hearings, family violence protective orders. If you want to inquire whether you believe a proceeding is an essential function, please feel free to email (see below).
- Fourth Emergency Order(Issued March 18)
- Prohibits a trial, hearing, or other proceeding in an evictionto recover possession of residential property under Chapter 24 of the Property Code and Rule 510 of the Texas Rules of Civil Procedure until after April 19, 2020.
- Prohibits the posting of the written warning required by Sec. 24.0061(d)(1) of the Property Code and the execution of a writ of possession until after April 26, 2020.
- Permits new filings of eviction cases, but prohibits issuance and service of citation until after April 19, 2020.
- Permits one of these proceedings to proceed only if the following three actions are met:
- the plaintiff files a "sworn complaint for forcible detainer for threat to person or for cause";
- the court determines the facts and grounds for eviction stated in the complaint, under oath with personal knowledge, taken as true, show that the actions of the tenant, or the tenant's household members or guests, pose an imminent threat of (i) physical harm to the plaintiff, the plaintiff's employees, or other tenants, or (ii) criminal activity; and
- the court signs an order stating procedure for the case to proceed.
Recommendations on Delaying Proceedings
- Previous guidance had been to delay non-essential proceedings to at least April 1, including jury trials. The Supreme Court and Court of Criminal Appeals Third Emergency Order has prohibited conducting non-essential proceedings in person contrary to local, state, and national directives, whichever is most restrictive, regarding maximum group size. OCA recommends that you continue to delay in-person proceedings of any size until at least May 1. However, with the introduction of the new remote proceedings capability described below, some of these non-essential proceedings, except for jury trials, can be conducted remotely.
Remote Proceedings Capability Now Available Using Free Tool from OCA
In an effort to assist judges to hold both essential and non-essential proceedings remotely, OCA has tested and procured licenses from Zoom to permit any judge in the state to host and provide public access to the proceedings. The system has been tested by several judges at each level of court, and the feedback from the judges has been very positive. Here are some highlights of using Zoom:
- The tool is widely available and free for use by the public. Individuals can download for free the app using a cell phone, tablet, or a computer device. The only requirement on their end is an internet connection. If the person does not have access to the internet or a video-capable device, they can join using a telephone.
- The tool is easy to use by judges and court staff.
- It is easy to publish the electronic proceeding to YouTube, so that the public can have access to the proceeding away from the courthouse, which permits compliance with the Open Courts provision of the Texas Constitution and the orders of the Supreme Court and Court of Criminal Appeals.
- No cost to local government or courts.
OCA has been informed that some counties are considering closing courthouse facilities. As you are aware, it is imperative that the clerks' offices and courts remain available for emergency matters or for other proceedings which cannot be conducted remotely. OCA has been in contact with the County Judges and Commissioners Association regarding this potential. While there may be a way in which public access can be reduced, judges are advised to communicate with their constitutional county judge or mayor/city council regarding the need for the building to remain open in certain situations.
Judges and clerks are advised to extend teleworking options to the degree possible to reduce the risk of transmission of COVID-19. You should consider what options are available to you and use them to the greatest extent feasible.
Many of you have contacted OCA about how to proceed with grand juries. It is our recommendation that you not terminate grand jury proceedings completely. You should be aware that grand juries can continue during the entire length of your court’s term. Sec. 24.012(a), Government Code, provides that the terms of district courts in each county are from January-June and July-December. Therefore, your existing grand jury can continue until the end of June, unless there is a statute that provides for a separate term for your court (Harris County, Armstrong County have specific subsections in 24.012). If you have an issue with your term of court, you may consider using Section 24.0125, Government Code, which permits the Regional Presiding Judge, with the approval of the affected district court, to designate the terms and sessions of court during a disaster.
Judges Assigned to Ch. 81 Quarantine Proceedings
As has been previously discussed, 31 district judges across the state have been assigned to hear quarantine proceedings under Ch. 81, Health and Safety Code. These judges have received specific training on the proceedings. With the Public Health Emergency Declaration, the proceedings change a bit. OCA is distributing contact information for these judges to the municipal, county, and district attorneys, as well as the attorney general. It is our expectation that these 31 judges will be able to handle the cases that come in, no matter the court in which the proceedings are filed. Should you wish to handle the proceedings yourself, please contact your Regional Presiding Judge to discuss.
- If a court deems that non-essential (see below), in-person proceedings may pose an unnecessary or unreasonable risk to participants, court staff, or the public, the court should avoid that risk, when possible, by simple delay or by a telephone or video remote appearance. Our suggestion is that you follow this practice until at least April 1.
Essential proceedings include, but are not limited to, criminal magistration proceedings, CPS removal hearings, temporary restraining orders / temporary injunctions, juvenile detention hearings, family violence protective orders, and certain mental health proceedings.
Courts should schedule or suspend proceedings to avoid the gathering of large groups of people until at least April 1, including jury trials and large docket calls.
- Courts should publicly encourage persons with COVID-19 or flu-like symptoms, a fever, or who are coughing or sneezing, to contact the court before appearing. Courts should also publicly encourage attorneys who know that clients, witnesses, or others have such a condition to alert the court in advance. The court should make reasonable accommodations and reschedule appearances and hearings as needed.
- You may wish to consult with your local health authority for additional guidance on the timing of the suspension of proceedings as conditions in the local community may vary from jurisdiction to jurisdiction.
- Courts should implement telephonic or video remote appearances for all proceedings which may occur remotely.
- Please be aware that the Open Courts provision of the Constitution will generally require that the public have access to proceedings. If you hold telephonic or video remote hearings, you should consider a method by which the public can have access.
Request for Notice
Should your court choose to suspend proceedings for a period of time, please notify OCA by email at firstname.lastname@example.org with information about the closure or fill out the webform. OCA will post the information on our court closure website in an effort to provide public notice of the suspension.
Previous Preparation Work: The Supreme Court of Texas established the Task Force to Ensure Judicial Readiness in Times of Emergencies (JRITE) in 2008 and charged the Task Force with reviewing and updating its plan in 2016. Included in JRITE’s work is an interim plan and other resources, including resources for preparing and responding to pandemics such as COVID-19. To view these resources, please visit http://txcourts.gov/organizations/policy-funding/task-force-on-judicial-emergency-preparedness/jrite-resource-archives/. The ultimate goal of the preparedness plan is to allow courts to operate in a way that protects the health and safety of everyone at the court facilities and to keep courts open to ensure the justice system continues.
The most important steps in responding to the virus is prevention. The CDC has issued the following prevention tips:
- Avoid close contact with people who are sick.
- DSHS has recommended to OCA that you maintain at least 6-8 feet between you and a person who is symptomatic to reduce the risk of spread of the virus.
- DSHS has indicated that evidence shows that the virus is not able to survive in the ventilation system.
- If you have a proceeding involving a person who is symptomatic and the proceeding must continue, attempt to isolate that proceeding to reduce the risk of interaction with others.
- Avoid touching your eyes, nose, and mouth.
- Stay home when you are sick.
- Judges, court employees, attorneys, or litigants who are sick should be encouraged to stay home and to seek medical attention.
- Cover your cough or sneeze with a tissue (or into your arm if a tissue is not available); then throw the tissue in the trash.
- Clean and disinfect frequently touched objects and surfaces using a household cleaning spray or wipe. A list of products recommended by DSHS for this purpose is available at https://www.americanchemistry.com/novel-coronavirus-fighting-products-list.pdf.
- While some might think that the use of a facemask is necessary or advisable, CDC does not recommend the use of a mask for people who are well, as they are less effective at preventing infection and are in short supply for health care workers. However, CDC and DSHS has recommended that courts consider providing facemasks (the common surgical masks can be used) to individuals who are showing symptoms of COVID-19 to help avoid spread of the virus to others.
- Wash your hand often with soap and water for at least 20 seconds, especially after going to the bathroom; before eating; and after blowing your nose, coughing, or sneezing.
- If soap and water are not available, use an alcohol-based hand sanitizer with at least 60% alcohol.
While there is currently no need for alarm, courts should prepare now to ensure a proper response if an outbreak occurs.
- Courts should consider and identify who is authorized to make decisions in an emergency including evacuation (partial or total) and the closing of court operations.
- Courts should consider which functions are essential and must continue if an outbreak occurs.
- Essential functions are typically divided into those that are necessary in the first 7 days, 7-30 days, 30-90 days, and 90+ days.
- Examples of essential functions that must occur in the first 7 days include: criminal magistration proceedings, CPS removal hearings, temporary restraining orders/temporary injunctions, juvenile detention hearings, family violence protective orders.
- Courts are encouraged to delay non-essential functions in the event of an outbreak and to reduce the need for large numbers of possibly infected people to congregate. This may include the need to consider delay of jury trials.
- Courts should consider which staff are essential and which staff could stay home if court functions are to be continued.
- Courts should prepare now for the possibility of permitting staff to work remotely, including considering the technology needs for that to occur.
- Courts should consider which proceedings could occur by telephonic or video remote appearances. This may include using “low-tech” solutions such as teleconferencing, Facetime, Skype, or some other common remote appearance tool.
- Courts should plan how to notify self-represented litigants, witnesses, and others of the remote appearance technology.
- Some courts have begun to place wording on orders setting hearing and docket notices reminding attorneys/parties to contact the court if they are ill.
- Courts should consider how to promptly communicate the activation of plans to judges, courts staff, and the public.
- The Office of Court Administration and the State Bar of Texas have a communication plan that allows for prompt notification of the bar and public notices; however, additional local notifications will likely be necessary.
- Some courts have posted notices or entered orders encouraging or requiring attorneys and parties to notify the court if they (or their clients) are experiencing symptoms.
While the state and local health authorities generally have responsibility for establishing quarantine control methods, a court may need to become involved if a person does not comply with those control orders from the health authority. Chapter 81, Health and Safety Code, sets out the procedures in such cases. A bench book at https://www.law.uh.edu/healthlaw/HLPIBenchBook.pdf provides guidance and forms for district judges who are responsible for hearing these cases.
To ensure quick response and continuity, the Regional Presiding Judges and Chief Justice Nathan Hecht have identified several judges from each region of the state who are being assigned to hear proceedings under Chapter 81, Health and Safety Code. These judges will be on-call for the proceedings should the need arise in an emergency or after-hours situation. Your regional presiding judge can provide you additional information on the assignments in your region.