Breaking Down The Texas Courts' COVID-19 Response

By Eric Johnston and William Grubb
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Law360 (March 19, 2020, 9:02 PM EDT) --
Eric Johnston
Eric Johnston
William Grubb
William Grubb
On March 13, Texas Gov. Greg Abbott declared a state of disaster for all Texas counties. The governor's declaration gives the Texas Supreme Court the authority to "modify or suspend procedures for the conduct of any court proceeding affected by a disaster during the pendency of a disaster."[1]

On the same day as Abbott's declaration, the Texas Supreme Court issued its "First Emergency Order Regarding The COVID-19 State of Disaster." The first order is effective as of March 13 and expires May 8, unless extended by the chief justice of the Texas Supreme Court.

Since the first order, the Texas Supreme Court has entered second, third and fourth emergency orders on COVID-19.[2] The subsequent orders amend and clarify how the first order applies to specific situations. Additionally, the third emergency order provides that "[c]ourts must not conduct non-essential proceedings in person contrary to local, state, or national directives, whichever is most restrictive, regarding maximum group size."

As lawyers, litigants, courts, and citizens react and adapt to this evolving pandemic, it is important to understand the ways in which the first order and its amendments may affect pending and future cases.

The Potential Extension of the Statute of Limitations

For unfiled or future cases, the first order allows all courts in Texas to "extend the statute of limitations in any civil case for a stated period ending no later than 30 days after the Governor's state of disaster has been lifted." For example, if the two-year time period to file a personal injury claim is set to expire on March 19, then the plaintiff's time to file that claim may be extended under the first order until 30 days after the governor's state of disaster declaration expires.

As courts, county and district clerks, and other state agencies face disruptions to normal operations, this provision allows courts to extend the statute of limitations, potentially limiting harsh consequences caused by any delays.

Notably, the first order says courts "may" take this step, so lawyers and litigants should carefully monitor the applicable court(s) to determine whether the statute of limitations have been extended.

Pending Cases

For pending cases, the first order provides six categories of actions that "all courts in Texas may [take] in any case ... and must [take] to avoid risk to court staff, parties, attorneys, jurors, and the public — without a participant's consent."

Based on the language of the first order, these actions are generally optional, but they may become mandatory to the extent necessary to "avoid risk." Also, the first order is exceptionally broad, as it is "[s]ubject only to constitutional limitations."

1. Modification and Extension of Deadlines

The first order provides for the modification or suspension of any and all deadlines and procedures (whether by statute, rule, or order) for a stated period ending no later than 30 days after the governor's state of disaster has been lifted.

This could apply to things like discovery procedures, trial settings and motion deadlines. However, given that the modification or suspension of deadlines may be optional, lawyers and litigants should be careful to examine court procedures on a case-by-case basis.

2. Remote Appearances

The first order authorizes courts to "[a]llow or require anyone involved in any hearing, deposition, or other proceeding of any kind ... to participate remotely, such as by teleconferencing, videoconferencing, or other means."

While different courts have different policies regarding telephonic hearings, the first order makes it clear that courts can now require litigants to appear remotely. As the legal system grapples with the COVID-19 pandemic, video or telephonic hearings, bench trials, and depositions could become the norm for the foreseeable future.

Importantly, this portion of the first order expressly does not apply to jurors, although many counties have suspended jury trials in response to COVID-19.

3. Out-of-Court Testimony

Relatedly, the first order also seeks to expand the use of sworn out-of-court testimony, allowing (and perhaps in some instances mandating) courts to "[c]onsider as evidence sworn statements made out of court or sworn testimony given remotely, out of court, such as by teleconferencing, videoconferencing, or other means."

The first order could lead to the increased reliance on sworn, written testimony, such as affidavits or declarations; however, the current examples contained in the first order contemplate virtual witness attendance through sworn testimony by telephone, video or other means.

4. Changing the Location of Court Proceedings

Recognizing that the availability of courtroom space may change as the state adapts to the COVID-19 pandemic, the first order, as amended, provides that courts may (an in some situations must) "[c]onduct proceedings away from the court's usual location." The first order is careful to note that any change in location must be accompanied by reasonable notice and access to the participants and the public.

In theory, this portion of the first order could clear the way for judges to conduct video proceedings from home or other locations, so long as they provide reasonable notice to participants and the public.

Additionally, the third order provides that courts "must" not conduct "non-essential proceedings in person" if they are "contrary to local, state, or national directives, whichever is most restrictive, regarding maximum group size."

5. Potential Required Reporting

The first order provides that courts may 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."

6. Other Reasonable Steps

The first order also contains a catch-all provision allowing courts to "[t]ake any other reasonable action to avoid exposing court proceedings to the threat of COVID-19."

Obviously, different counties, courts and judges will adjust and react differently to the varying needs of their communities in dealing with the COVID-19 pandemic. This portion of the first order appears intended to give courts the flexibility to deal with the rapidly evolving situation.

As a whole, the Texas Supreme Court's emergency orders embrace the use of technology to assist in the social distancing recommended to combat the spread of COVID-19. Hopefully, these orders will provide courts the tools to operate as best they can amid the pandemic.

Tips and Considerations for Dealing With the Changes

To determine how specific courts and judges implement these available procedures, attorneys should carefully review any special orders or procedures in the courts in which they have pending matters. The Texas Supreme Court's first order leaves many of the details up to individual judges. To be careful, a party relying on the first order should consider a motion or other filing expressly asking the court to extend deadlines or alter other procedures.

It may also be helpful to contact deposition service providers to determine the availability of video depositions and other services. Many companies that provide deposition services also have video capabilities. As courts begin to conduct more proceedings on a remote basis, these services may be able to help facilitate remote access.

Finally, it is important to discuss these changes with your clients and opposing counsel. Many companies have already instituted health and safety protocols that affect in-person meetings. These policies can have a direct impact on things like witness preparation, depositions and other meetings. Discussing how changes to court procedures might affect upcoming case events and deadlines will help all parties deal with the evolving situation with as little disruption as possible.

Eric A. Johnston is a partner and William K. Grubb is an associate at McGinnis Lochridge LLP.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

[1] Tex. Gov. Code § 22.0035(b).

[2] The Second Emergency Order applies to and clarifies possession schedules in Suits Affecting the Parent Child—Relationship. The Fourth Emergency Order Applies to any action for eviction to recover possession of residential property under Chapter 24 of the Texas Property Code and Rule 510 of the Texas Rules of Civil Procedure.

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