Supreme Court of Texas Issues 43rd Emergency Order

We are a year and a half into the COVID-19 pandemic, and there is no clear end in sight. As long as the state of disaster endures, the Supreme Court is empowered to issue emergency orders. Last week, on September 21, 2021, the Supreme Court of Texas issued the 43rd Emergency Order Regarding the COVID-19 State of Disaster. TMCEC attorneys took time to review and discuss the order.

MG: This seems to be much the same as guidance that we’ve had for the last year or more. Notably, all courts can still (without a participant’s consent) allow or require anyone to participate remotely through video or telephone. This order goes into effect on October 1, 2021 and expires on December 1, 2021. Are there any new wrinkles that we should be aware of?

ER: Something that caught my eye was the change to provisions related to extending deadlines (#4 in the new order). Older emergency orders permitted courts to “modify or suspend any and all deadlines and procedures, whether prescribed by statute, rule, or order” up to April 1, 2022. Now the types of deadlines that may be extended are expressly limited to (1) trial-related deadlines and procedures; and (2) deadlines and procedures for pretrial hearings.

MG: That’s an interesting tweak, Elizabeth. I know we (TMCEC) talked over the last year about examples of things that could be modified or suspended including DSC and Deferred Disposition deadlines. Judges may want to rethink that now and ask themselves “Are probation-related deadlines trial-related? Are they pre-trial hearings?” These are the questions that courts will need to carefully consider.

,RC: I’d be curious to know the reason for the change in this order and if it is part of a gradual pulling back of the authority. Not the end, but the beginning of the end, so to speak. It is clearly a narrower authority than what we have seen in every order since the provision was originally added. For municipal and justice courts, “pretrial” does generally have a broader meaning than in the higher courts where that reference typically means a 28.01, CCP pretrial. But like Mark, I think this is a bit of a gamechanger from what we discussed in our Keynote at Regional Judges and Clerks all last year. The current provision no longer appears to contemplate anything not directly related to trial or pretrial like DSC or probation. Judges who were hanging their hats on the emergency orders for deadline modifications that fall outside existing statutory authority may want to give these changes some thought.

NM: There has definitely been an effort to narrow and itemize those deadlines that may be extended starting October 1st. Echoing Mark’s point, there will still be some potential gray areas – but they will be less gray than before. Other than this, I do not see any significant changes for municipal courts stemming from the 43rd Emergency Order.

To keep up with COVID-19-related updates, see TMCEC’s page here or txcourts.gov/court-coronavirus-information/

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