Texas Courts Re-Closing Amid COVID-19 Spike

By Michelle Casady
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Law360 (June 29, 2020, 11:53 AM EDT) -- The Texas Supreme Court on Monday afternoon extended the prohibition on jury trials in the state through Sept. 1, just days after the chief federal judge in Houston shut down public access to courthouses in Houston and Galveston amid a regional COVID-19 spike.

Jury trials in state court were already barred from happening before Aug. 1 except for a few, pre-approved test trials, but the court pushed that start date back a month. Several federal courts in Texas closed courthouses and delayed trial proceedings in response to the surge of COVID-19 cases.

Chief U.S. District Judge Lee Rosenthal signed an order Friday mandating the closure of the Southern District of Texas courthouse and the closure of the U.S. Post Office and federal courthouse in neighboring Galveston County through July 10. The Western District of Texas won't hold jury trials in July and is likely to extend that order another month, Chief U.S. District Judge Orlando Garcia told Law360 on Monday. And in the Northern District of Texas, the chief judge plans to push back jury trials so they don't begin in July.

In Houston and Galveston, the federal buildings will remain open for "official business," according to Judge Rosenthal's order.

"The courts continue to encourage remote or virtual proceedings when feasible and in the interests of justice," she wrote. "During the closure to the public, employees and contractors who enter either the Houston or Galveston courthouses must wear masks or face coverings in public areas and in shared workspaces where safe social distancing is not possible."

Also on Friday, the Laredo Division of the Southern District of Texas extended an earlier order that closed public access to the courthouse and pushed back the start date for any jury trials to Aug. 3 at the earliest. The Brownsville Division of the Southern District of Texas separately announced its courthouse would close to the public Monday, with reopening evaluated on a weekly basis.

Chief Judge Orlando Garcia, of the Western District of Texas, decided two weeks ago to extend an earlier order and push jury and non-jury trials back to July 31 at the earliest.

"At the end of the day, I think, and this is no surprise, I think we're going to extend it another 30 days," he told Law360. "If the number of confirmed cases are higher now than they were in March and April, I don't see how we don't extend it another 30 days."

Judge Garcia urged collaboration between state courts and federal courts on reopening schedules, saying it could lead to juror confusion.

"If a juror in San Antonio gets a state jury summons and doesn't have to come in until Sept. 1, then gets a federal summons that we're proceeding Aug. 1, we're saying to that juror it's safer to go to trial in federal court," he said. "And that, to me, doesn't make any sense. It's either safe or it's not safe."

Chief Judge Barbara M.G. Lynn, of the Northern District of Texas, told Law360 that because the courthouse in Dallas is inside a federal building that houses other entities she couldn't issue an order similar to Judge Rosenthal's that would shut the building to public access. Her latest order pushes any jury trials back to a July 17 start date, and she said she believes she'll soon be extending the order to push trials back to July 31 at the earliest.

But Judge Lynn also noted she presided over a criminal jury trial earlier this month that started June 1 with a three-round, socially distanced jury selection process, and ended June 3.

"I did it as sort of an experiment, as the chief, to see if we could get a trial done," she said. "I was mindful of whether we could get a jury, particularly one that's a cross-representation of our community."

With socially distanced jurors sitting in the gallery, and witnesses testifying from what is typically the jury box, Judge Lynn explained the procedure took up three courtrooms — one for the proceedings, one for jury deliberations, and another where proceedings were livestreamed for any members of the public to observe.

"Everyone in trial was wearing a mask or face shield except witnesses when testifying," she said, adding she felt the trial worked "quite well" and jurors reported being pleased with the safety precautions undertaken.

David Slayton, administrative director of Texas' Office of Court Administration, told Law360 on Monday that most courts in Texas continue to do as much as possible remotely, via phone calls and video conferencing, so the recent surge of cases in Texas hasn't impacted their game plan.

"What we know from looking at data and talking to judges is most judges are conducting virtually everything remotely," he said.

The judiciary's response to the public health crisis, much like the spread of the virus across the state, hasn't been uniform.

Chief Judge Rodney Gilstrap, of the Eastern District of Texas, told Law360 via email on Monday that the spike in cases in more populated metro areas of Texas aren't being seen in rural areas like the six counties that comprise the Marshall Division where he sits.

"Texas is a large and diverse state, and while we are attempting to follow the public health guidance from the CDC, the state and the Administrative Office of the US Courts, our circumstances have not forced us (at this time) to substantially curtail addressing the Constitutional mandate we have of providing justice within our district," he said. "The challenge of living up to that mandate while being mindful of the public's health (as well as that of our own employees and staff) is unlike any ever experienced."

--Editing by Alyssa Miller.

Update: This story has been updated with more details about the closures.

For a reprint of this article, please contact reprints@law360.com.

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