Understanding the 36th Emergency Order

TMCEC General Counsel Mark Goodner and Deputy Counsel Robby Chapman discuss The Supreme Court’s 36th Emergency Order and the OCA webinar offered on the topic on March 8, 2021.

MG: In the wake of the Governor’s order last week, The Supreme Court issued the 36th Emergency Order Regarding the COVID-19 State of Disaster on Friday, March 5th. On Monday, March 8th, OCA held a webinar about the changes. You and I were both able to watch this. What were the biggest takeaways for you, Robby?

RC: From a policy standpoint, it was interesting to see the Supreme Court deviate significantly from the direction that the emergency orders had been taking for the last year regarding local decisions on court operations. The 1st Emergency Order a year ago this month included many of the basic provisions that we would see in later orders. But the 26th Emergency Order in September 2020 expanded on this and added provisions specifically referencing Chapter 74 of the Government Code and the authority of regional presiding judges (RPJ) to oversee and approve the operation of municipal courts under the order.  This was supplemented by OCA Guidance in June and then December that required any municipal court to submit an operating plan for approval to the RPJ. The 36th Emergency Order completely removes these references. And as confirmed in the webinar on Monday, authority is essentially being returned to the municipal presiding judges. There are no longer requirements to submit an operating plan or recertify an operation plan to the RPJ and Office of Court Administration (OCA). Based on the trend in earlier orders, this was certainly not an expected change!

A screenshot from OCA’s March 8th webinar

MG: After the Governor’s Executive Order No. GA-34 dropped on March 2, 2020, we all were waiting to see how the emergency orders and guidance from OCA would be affected. We were impressed that we got COVID Update #20 just a few hours after GA-34, but in that update we knew something else was coming before GA-34 went into effect on March 10th. How did you feel about the timing of this 36th Emergency Order?

RC: From a purely selfish standpoint, I thought the timing was unfortunate since we had just wrapped the North Texas Virtual Regional. Many of our talking points in the Keynote became moot with the changes literally one day after we discussed them. I think one of the biggest was the directive in the 33rd Emergency Order that courts “must continue to use all reasonable efforts to conduct proceedings remotely.” (emphasis added). We spent a lot of time discussing this provision, as it was reflected not only in the emergency orders, but also the official guidance from OCA and in a memo released by the Conference of Regional Judges in July 2020. The 36th Emergency Order makes a small, but incredibly important change to that sentence. It now reads, “courts should continue to use all reasonable efforts.” (emphasis added). That is a pretty big change. As any lawyer knows, words matter! That said, the basic provisions from the 1st Emergency Order, though, largely do seem to have been renewed.

MG: You’re absolutely right—but I don’t think it’s selfish. We have worked hard to give judges and clerks the most up to date information. It is a bit disheartening when the latest information becomes obsolete so quickly. When we taught that class we were caught in between the executive order and the emergency order. We talked to them a day or two after GA-34 and a day before the 36th Emergency Order. Although our class has changed just about every time we’ve taught it so far—I imagine that will continue, and we’ll have a chance to teach it again at least 7 more times! Within the 36th order there is certainly some information that we could classify as “more of the same.” For instance, judges have had the ability to modify or suspend deadlines or procedures for some time, and now that authority has been extended until June 1st, 2021. Also, judges can still require or permit anyone to participate remotely without consent and courts are encouraged to use reasonable efforts to conduct proceedings remotely. On the flip side from requiring remote participation, a significant change is that a judge must permit remote participation by any participant other than a juror upon request and good cause. And good cause is not defined for us, so that will be up to judicial interpretation and discussion. In addition to that, is there anything that stuck out to you as a departure from earlier guidance—some new or different information?

A screenshot from OCA’s March 8th webinar

RC: As you know, we talk quite a bit in the keynote that we present at the regional seminars (What Every Judge and Clerk Should Know About the Emergency Orders) about both of the provisions that you highlighted. What struck me in the OCA webinar, however, was a comment that David Slayton made regarding continued emergency orders. One participant mentioned how hard it was for courts to plan when new orders can potentially change the ground rules every 90 days. Anyone that has considered summonsing a jury right now or tried to nail down a jury setting as either remote or in-person will agree with that sentiment. David Slayton noted two things in response to this comment. First, that he felt the Governor’s State of Disaster, which authorizes the emergency orders in the first place, could continue for some time. Possibly years. This would mean that the Governor would have to continue renewing the State of Disaster every 30 days, as provided by statute. I thought this was a surprising possibility. The second thing he noted is that he felt future emergency orders would more likely become less restrictive as time went on, rather than the other way around. If your court is trying to plan dockets 30, 60, 90 days out, I suppose that could make things a little easier in theory.

MG: That’s true. Maybe we are seeing a long and gradual easing of requirements and restrictions.

RC: I want to add that I was excited to see that David Slayton addressed one of my questions. When these types of webinars get going, it is sometimes hard to get your question in. I know that both you and I got relegated to watching the webinar on the YouTube stream when attendance on Zoom was maxed out. Fortunately, I emailed my question beforehand! I asked about a provision that has been in the last couple of emergency orders, and remains in the 36th Emergency Order, that a court “has considered on the record any objection or motion related to proceeding” with an in-person jury trial. I have also seen this language, close to verbatim, in the recently filed S.B. 690, which would codify some type of remote proceedings in the law going forward. Did they forget about the non-record municipal courts and justice courts?

MG: The number of questions that David Slayton fielded and answered was significant. You raise a good point, most municipal courts are not courts of record, yet the guidance does specify to include any objection on the record. Presumably, when dealing with a trial de novo, the objection wouldn’t matter. Slayton recommended that it be noted in the case file, and I certainly think that’s a good practice.

A screenshot from OCA’s March 8th webinar

RC: I agree. With the flood of questions both emailed and in chat, I was grateful he got to that one. Of course, I didn’t ask the question in the flippant way above! The point was, what can non-record courts do to comply with this requirement when there is no transcript of proceedings. This is certainly something a large segment of our courts will have to consider, especially if it becomes law down the line. David Slayton’s suggestion was well taken. We talk to courts all the time about “what’s in your case file” and the importance of documenting what happens in a case. This is important even when your court doesn’t have a court reporter.

MG: I encourage all municipal court personnel to read through 36th Order and watch OCA’s webinar, if possible. I don’t think it is linked to the txcourts.gov website yet. Thanks for talking through this with me, Robby.

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