Remote Possibilities: Post-Emergency Zoom Hearings

On January 27, 2023, the Supreme Court of Texas issued the Final General Emergency Order Regarding the COVID-19 State of Disaster. The Final Order renewed and amended the Fifty-Ninth Emergency Order and granted special rules pursuant to Governor Abbott’s declared state of disaster. The Final Order was effective February 1, 2023, and expired March 1, 2023.

The Final Order continued the practice of the previous orders, and provided specific authority for courts to operate remotely. All courts in Texas in any criminal case were authorized to require participants involved in a hearing to participate remotely, such as by teleconferencing, videoconferencing, or other means.  After consideration on the record or in a written order, municipal courts were authorized to require a lawyer, party, or juror to appear remotely. Courts were also authorized to conduct proceedings away from the courts’ usual location, if certain criteria were met.

Now that the Order has expired, courts have the same ability to conduct remote proceedings that they had prior to the first order, issued on March 13, 2020. If that ability exists, a court must find it in statutory authority or, arguably, its own inherent power. But if a court could not conduct a proceeding remotely prior to March 13, 2020, how can it today?

There is no general authority for courts to conduct proceedings remotely. Court processes have, for decades, been organized around a presumption that a court is a physical location, and a court proceeding is a process that occurs in that location. Court jurisdiction is described by the court’s physical location. Several important rights have been shaped by the concept of a physical gathering place for court, such as the right to confront witnesses, the right to a public trial, the rules of hearsay, and the process of voir dire. While none of those rights absolutely requires physical presence, the history and case law surrounding them has been shaped by the idea of it. With that in mind, beyond constitutional limitations, there are few times in law when conducting remote or videoconference proceedings is expressly prohibited.

Before the Emergency Orders, there was certainly some express authority in the Code of Criminal Procedure for conducting remote or videoconference proceedings:

  • Article 15.17 expressly allows a magistrate to deliver required warnings and information by two-way electronic videoconference, with image and sound. This proceeding is required for any person arrested, whether they are subsequently brought to the jail or released for a later appearance before a magistrate under Article 14.06.
  • Article 27.18 allows acceptance of a plea by videoconference, with the written agreement of the defendant and the State, provided the videoconference allows simultaneous full motion video and interactive communication of image and sound and the defendant can communicate privately with the defendant’s attorney without being recorded or overheard.
  • Proceedings in municipal courts are governed by Chapter 45 of the Code of Criminal Procedure. In Chapter 45, there is some express authority to conduct remote and videoconference proceedings and possible implied authority:
    • Article 45.0201 expressly allows appearance by telephone or videoconference for hearings under Article 45.0445 (Reconsideration of Satisfaction of Fine or Costs) and Article 45.045 (Capias Pro Fine). Article 45.046 allows videoconferencing for commitment hearings.
    • Some practitioners find implied authority for videoconference or other remote proceedings in Articles 45.001 and 45.002. Under those articles, courts are directed to construe Chapter 45 to ensure appropriate dignity in court procedure without undue formalism, and to process cases without unnecessary expense or delay. Where the chapter does not provide a rule, courts are directed to apply other general provisions of the Code of Criminal Procedure “to the extent necessary to achieve the objectives” of the chapter. Although this obviously does not use the term “videoconference,” some practitioners read into this article a permissiveness for municipal courts.

Without the clear and specific authority previously offered to courts in the Emergency Orders, courts must continue under authority offered in the Code of Criminal Procedure. Some courts see many benefits to virtual proceedings but have halted the practice absent specific authority from the Legislature or caselaw. Others may find enough permissive authority in Chapter 45 or their inherent power to carry on with virtual proceedings. All courts, however, would benefit from clear guidance regarding virtual hearings coming out of the 88th Legislature. As of now, TMCEC has identified no bills filed that would expressly authorize virtual hearings for municipal courts. The filing deadline for legislation this session is March 10, 2023. Courts should always remember that any process employed must conform to due process and respect the rights of the accused at every step of the process.

Published by markgoodner

General Counsel & Director of Education, TMCEC

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