Texas Supreme Court Issues 29th Emergency Order: What Municipal Courts Need to Know

Issued November 11, 2020, the 29th Emergency Order is effective immediately and expires February 1, 2021. The order, signed by Chief Justice Nathan L. Hecht (with Justice Blacklock dissenting), extends the 26th Emergency Order with amendments.

All Courts

All courts may without consent of participants:
• Modify or suspend all deadlines and procedures for a stated period ending no later than February 1, 2021;
• Allow or require anyone involved in any proceeding to participate remotely;
• Consider out of court sworn statements or sworn testimony given remotely to be evidence;
• Conduct proceedings away from the court’s usual location with reasonable notice and access;
• Require every participant in a proceeding to alert the court if participant has or knows another participant who has COVID-19 or flu-like symptoms or has been in recent close contact with someone confirmed to have COVID-19 or who exhibits symptoms;
• Take any reasonable action to avoid exposing court proceedings to the threat of COVID-19.

Follow OCA Guidance

Courts must not conduct in-person proceedings contrary to OCA’s Guidance for All Court Proceedings During COVID-19 Pandemic, and must submit an operating plan consistent with the guidance.

Courts must continue to use all reasonable efforts to conduct proceedings remotely.

Justice and municipal courts may not hold in-person jury proceedings prior to February 1, 2021.

A court may not permit or require a juror to appear remotely unless the court ensures that all potential and selected jurors have access to technology to participate remotely.
OCA should issue detailed guidance to assist courts wishing to conduct remote jury proceedings and should offer assistance to those courts in conducting the proceedings.

Regional Presiding Judges

The Regional Presiding Judges must:
• Ensure that all courts in the region are operating in full compliance with Supreme Court orders and OCA Guidance;
• Ensure all trial courts in each region do not conduct in-person proceedings inconsistent Supreme Court orders and OCA guidance;
• Report to the Chief Justice of the Supreme Court any proceedings conducted that are inconsistent with Court orders and OCA guidance; and
• Assist local governments and courts to ensure that courts have the ability to conduct court business.

Guidance to Adjust with Public Health Changes

OCA with the Regional Presiding judges should monitor court proceedings as well as the Texas Department of State Health Services regarding the public health situation in Texas. OCA should adjust its guidance as necessary to ensure the health of all court participants and the public.

Virtual Regional Seminars Are In Full Swing

Here at TMCEC, we are now more than two months into the new Academic Year, and court personnel are in the midst of completing required continuing education. At the end of October, TMCEC hosted their first ever Virtual Regional Seminars. Over 140 judges and clerks attended the seminars, and everything went very smoothly. Mark Goodner sat down with TMCEC Deputy Counsel & Program Attorney, Robby Chapman, to reflect on the first virtual programs and look forward toward other programs.

MG: Robby, a couple of weeks have passed since we waded into the “virtual waters” with our regional seminars. While there is no substitute for the face-to-face contact I miss by not being in person, I think some great benefits emerged in the virtual format. For one, I loved how, through the chat feature, that we were really able to focus on local issues. At any moment, a participant could drop in a question, and the faculty as well as TMCEC staff could respond either in the class over the camera or in the chat, itself. Did anything surprise you about the virtual seminars?

RC: Mark, I agree about the chat function. I remember we were worried about this early on once it became clear over the summer that the pandemic would be disrupting our regularly scheduled programming. Nothing can replace the actual in-person experience of a seminar (or the in-person experience of conference chicken?), but the chat has been a surprisingly effective way to interact with our audience. In some ways it gives judges and clerks even greater access to speakers and TMCEC attorneys. When questions come up during class, the question is right there for either the speaker to take up or someone else to field while the class continues. I saw a lot less of, “talk to me after class” or “we need to move on” answers. I think all the questions were addressed either on the spot or in our follow-up live Q&A the next day. And as a bonus, we didn’t have to rush through an answer while running to the hotel bathroom between classes!

Judge Elaine Marshall speaks at the East Texas Virtual Regional Seminars

MG: I also loved that many of the sessions featured team-teaching. I think it helps, in a virtual environment, to have that built-in conversation and give-and-take to keep the participants engage. I also know as a faculty member it helps to not feel like I was just talking to my computer! How did you feel about the team teaching.

RC: I thought the team teaching was a very effective shift in our approach to virtual learning. You and I have team taught various clerk and judge sessions together for what – 7 years? – now, and I think the audience appreciates hearing different voices during the hour. This is not to say sessions with a single speaker are problematic in any way. Rather, it breaks up what is likely a long day with a slightly different teaching method. Remember that participants may be sitting in front of the computer listening for 8 hours. The shift from one type of delivery to another at different points helps the listener “reset” their brain and maintain focus.

Judge Matthew Wright speaks about eCourts at the East Texas Virtual Regional Seminars

MG: This year knowing that the virtual environment would be different, and that any possibility of returning to in-person training may have limits on the number of attendees, we designed agendas that are a little different than typical. We do not have breakouts for one thing. How do you think our changed agendas affect the experience?

RC: That was a big change. I know we debated this at length, with part of the reason being the limits of our technology and budget! In a way, though, the virtual format neutralizes some of the downsides to having breakouts. I remember a time back in the in-person days, I think last academic year at the San Antonio Regional, where the breakout room was completely packed. We couldn’t add any more seats without risking some type of fire code violation. On the evaluations afterwards, we heard that the breakout topics were incredibly interesting to many and they were (A) disappointed they couldn’t get a seat or (B) disappointed that they couldn’t attend more than one breakout at the same hour. Our virtual sessions don’t have those limitations. By going all general session, though, we are limited as to how many topics we can touch on during the seminar. To address this, we outlined a theme for the seminar and each general session ties back and is relevant to that theme. In that way, we make sure each class is going to give participants some takeaway that will help them when they return to court. Our theme this year is “Finding Certainty in Uncertain Times.” We want to help find even a little bit of certainty! There are still a lot of unanswered questions – you and I spend more than an hour in the Keynote discussing them! – but hopefully this is helpful to participants.

Judge Robby Chapman answers a question in the Q&A session at the East Texas Virtual Regional Seminars

MG: With COVID-19 apparently growing in numbers, there may not be an end to virtual programming for some time. TMCEC has already determined that all seminars through February 2021 will be virtual, and the remaining programs are still up in the air. I am thankful that we’ve done at least 10 virtual programs now and we seem to be getting the hang of it. And Monday marks the beginning of our Central Texas Virtual Regional Seminars. Thanks for your time today, Robby and stay safe!

RC: Always a pleasure! I’m looking forward to seeing everyone in-person eventually. But for now, I’ll be chatting with everyone at a regional. Stay safe!

TMCEC Opens Registration for Fall Events!

The 2021 Academic Year began this month, and TMCEC is busy with preparations for another year of excellent educational offerings. Due to the uncertainties of face-to-face training possibilities because of COVID-19, TMCEC has shifted from a single Academic Catalog to quarterly Academic Schedules.

The first installment, AY 2021 Fall TMCEC Academic Schedule (September 1, 2020 – December 31, 2020), was released last week.

Municipal Judges and court personnel are encouraged to read about this year’s academic offerings. Notably, all educational offerings through December 31, 2020 will be virtual and are now open for registration.

Virtual Regional Seminars begin the last week of October and both the clerks (October 26-28, 2020) and judges (October 28-30, 2020) programs will focus on issues and concerns prevalent in East Texas. The November 16-18, 2020 Virtual Regional Seminars will have a Central Texas focus.

The Virtual Low Volume Court Seminar (November 4-6, 2020) features TMCEC’s recently relaunched curriculum brought into the digital realm. This popular program offers opportunities for non-attorney judges and clerks to collectively examine issues and problems commonly experienced in smaller courts that adjudicate fewer cases.

The final programs of 2020 will be the Virtual New Judges and Clerks Seminars December 7-11, 2020. These programs offer 32-35 hours of judicial education or clerk certification credit.

Check out the new Academic Schedule to learn all of the details or click here to register.

New Rule Regarding Firearm Admonishments Effective Today 9/1/2020

The Texas Judicial Council adopted a new Chapter (176) and a new rule regarding firearm admonishments in the Texas Administrative Code. Under the new rule, a trial court must inform a person of his or her ineligibility to possess a firearm or ammunition when the person, by entry of an order of judgment, becomes by state law ineligible to possess them.

Under the new §176.1 of the Texas Administrative Code, a person appearing in court must be admonished orally and in writing. If the person is not appearing before the court when the person is or becomes ineligible, the court must provide the person with a written admonishment informing the person of the person’s ineligibility to possess a firearm or ammunition by a method reasonably likely to provide notice to the person. The admonishment must clearly inform the person that possession of a firearm or ammunition could lead to additional charges.

OCA is required to publish model admonishment language on its website. The model admonishments are available below.

Municipal courts should keep this rule and new model admonishments in mind as they do go hand in hand with recent changes brought about in 2019 by House Bill 1528 pertaining to family violence offenses. You may remember that, prior to the changes, municipal courts could rely on a statement printed on a citation in place of a required court admonishment–this may be partially because before House Bill 1528, defendants did not have to appear in open court for class C family violence offenses. House Bill 1528 added Art. 45.0211 requiring judges to take a family violence plea in open court, and additionally the bill struck language allowing the citation to serve as the court admonishment, and now Art. 27.14(e)(2) simply says the court may provide the admonishment orally or in writing. This requirement is now further emphasized and clarified in the new rule. The model admonishments should also prove helpful.

TMCEC Wraps Up Its First Virtual Traffic Safety Conference

TMCEC’s first Virtual Traffic Safety Conference comes to an end tomorrow. It was a new experience for us and for most of the participants. Mark Goodner sat down (virtually) with TxDOT Grant Administrator & Program Attorney, Ned Minevitz, to ask some questions about the conference.

MG: Ned, the Virtual Traffic Safety Conference is wrapping up this week. I know you and other TMCEC staff, especially Matthew Kelling, put a lot of time and effort into it. Are you pleased with the result?

NM: Absolutely! With this conference being, to my knowledge, TMCEC’s first full-blown online conference, I was a bit nervous that we would not be able to pull it off—I feared that it may end up being the proverbial “guinea pig” that future TMCEC conference planners looked at as how not to host a virtual conference (laughter). TMCEC’s exemplary staff made sure that this did not happen. I think we all feel a great sense of pride and achievement that we were able to offer such a great conference on the first go. One participant comment stuck out to me. It said “TMCEC has this virtual conference thing DOWN!” How cool is that?

MG: How does this conference differ from other TMCEC virtual offerings?

NM: TMCEC is experimenting with a bunch of different virtual conference formats right now. The Virtual Traffic Safety Conference is a “hybrid” conference that blends synchronous (live) and asynchronous (pre-recorded) content. The sessions were primarily pre-recorded, but we offered two live Q&A sessions with the faculty. Participants were given a window of two weeks (July 27 through August 7) to complete the 12-hour conference at their own pace. We also offered “watch parties” where participants could interact with each other through a chat feature while all watching the same course. Other TMCEC virtual conferences may be 100% synchronous. There are really a lot of different virtual conference formats and at this point we are trying them and seeing what works and doesn’t work. 

MG: Does virtual training have any benefits over live, in-person training? What are the drawbacks?

NM: The most obvious benefit is probably convenience: participants can get the credit they need from the comfort of their living room! And for asynchronous events they can get this credit when they want, so if a conflict arises one day, they can just watch it the next day or that evening. Of course, there is no substitute for face-to-face interaction between participants, TMCEC staff, and faculty. We hope to get back to that soon. But if I were to make a prediction, I do not think virtual conference offerings will go away once the COVID-19 pandemic subsides. For all of the negatives stemming from the pandemic, I think one positive is that it gave TMCEC the opportunity to explore new and different ways to provide our constituents with the best education possible.

Thanks for the insight, Ned!

Municipal Judge Kirk Noaker Shares COVID-19 Experience

Burnet County Magistrate, Municipal Judge, and TMCEC faculty member Kirk Noaker spoke with Austin radio station KBEY yesterday about his experiences of falling ill and recovering from COVID-19.

Judge Noaker experienced a multitude of symptoms starting with a loss of taste and smell. After being tested, it took about a week to get the test result back. It was a very frustrating experience for Judge Noaker as medications didn’t seem to work. The illness lasted about two weeks for him (and also spread to his wife), and his most troubling symptom was uncontrolled rapid breathing that would last for up to five hours after going to bed. In addition to breathing issues, Judge Noaker experienced joint pain, nausea, diarrhea, sweating, weakness, fatigue, fever, and loss of appetite. The return of his senses of taste and smell seemed to indicate a turn for the better. We are so glad to hear that Judge Noaker is feeling better. Thankfully, he has recovered, but it sounds like it was quite an intense illness.

Listen to Judge Noaker’s experience at the link below, and stay safe!


TMCEC to Focus Exclusively on Distance Learning for Remainder of AY 2020

No More Waiting on COVID-19: More Certainty in Uncertain Times

Dear Judges and Court Personnel:

Because your safety, and the safety of our faculty and staff remain our top concern, TMCEC will not conduct “in-person” events for the remainder of this academic year (ending on August 31, 2020).

The decision was carefully made considering the most recent federal and state health guidelines and the alarming spread of COVID-19 statewide.

We have known since the beginning that no one knows how long the slow, scary carnival ride of COVID-19 is going to last. We recognized early on that the pandemic generates tension between “what was,” “what is,” and “what shall be.”

In April, I told you that TMCEC was planning for two possibilities. One entailed distance learning, the other “in-person” events. By May, we began to understand that as long as COVID-19 haunts us, for logistical and other reasons, TMCEC is not likely, any time soon, to be able to conduct in-person training like we did pre-pandemic. In early June, the last time I wrote you, it seemed like Texas was turning a corner. TMCEC was preparing to gradually resume in-person events. We would begin by “dipping a toe in the water” in early July and hoped to be “waist deep” by August. Since then, however, it has become self-evident, that presently “it is not safe to go back in the water.”

Setting disappointment aside, we are relieved that there is no longer uncertainty regarding in-person training for the rest of the academic year. Sooner or later we will resume in-person training (and it will be awesome). However, at this moment, going forward, TMCEC will focus 100 percent of its energy on distance learning. And though we may have some trepidations, we are excited about beginning this new chapter in the TMCEC saga. (Because it is going to be awesome.)

As a reminder, you can complete your mandatory judicial education or clerk certification hours online (at your own pace) through webinars on the Online Learning Center (OLC). Are you new to the OLC? Do you have questions or need technical assistance? We are here to help. Call 800.252.3718 or drop us an email at info@tmcec.com.

In addition to our newly expanded OLC webinar offerings, which have received high marks and praise, TMCEC has been hard at work planning different virtual events for the next three months. Details on these events are outlined in the attached TMCEC Online Education Guide (July – September 2020). Registration is now open. To register, click here. To stay up to date, visit our schedule of events.

Whether through in-person training or through the internet, TMCEC is committed to making unique learning opportunities for judges and court personnel that are practical and engaging. TMCEC pioneered the use of webinars in Texas judicial education, and we are also ready to blaze a new path in distance learning. We hope you will join us!

Take care. Stay safe.

Ryan Kellus Turner

Executive Director

Texas Municipal Courts Education Center

No, Not THAT Citation! Municipal Courts Not Required to Enter Criminal Citations into New Website

A new website offering citation by publication went live on July 1, 2020, but it doesn’t pertain to the type of citation we are used to handling in Texas municipal courts. Citations (as class C misdemeanor charging instruments) are not required to be entered into the website. Rather, the website pertains to civil matters.

Article 20 of Senate Bill 891 required OCA to develop a searchable website that includes certain types of notices to be posted by law. For clarity, OCA offers the “Laws & Rules” pertaining to this website, which can be seen below.

Notably, the rules requiring change are rules of civil procedure, not rules of criminal procedure. This website does not pertain to criminal citations, as there is not a statute or rule requiring publication of criminal citations.

Some courts grew concerned after receiving a June 29, 2020 email from OCA (COVID-19 Update #11) that included this section:

A quick glance and the fact that citation has multiple meanings under the law led some to believe that this was a new requirement for municipal courts with regard to criminal citations. Rest assured–this does not apply to criminal citations.

Important COVID-19 Resources from OCA

COVID-19 led to significant changes for Texas municipal courts. One excellent resource for information from the Office of Court Administration (OCA) is the Texas Judicial Branch home page at txcourts.gov. On the page, you will find links to all COVID-19 information at the top of the Announcements Box.

Picture of Announcements box on txcourts.gov website.

Included in the Announcements box are links to:

  • All Emergency Orders still in effect
  • Information on Zoom Hearings
  • Court Guidance
  • Operating Plans
  • Court YouTube Channels

Emergency Order 17

Of the five emergency orders still in effect, Emergency Order 17 contains pertinent information for municipal courts. Read the full order here. Some especially important portions for municipal courts are:

  • Municipal courts may modify or suspend any and all deadlines and procedures until no later than September 30, 2020.
  • Municipal courts may allow or require anyone involved in any proceedings of any kind to participate remotely, such as by teleconferencing, videoconferencing, or other means.
  • Prior to holding any in-person proceedings on or after June 1, 2020, all courts must submit an operating plan consistent with OCA’s Guidance for All Court Proceedings During COVID-19 Pandemic. Even after submitting a plan, courts must continue to use all reasonable efforts to conduct proceedings remotely.

Zoom Information and YouTube Support

OCA has provided Zoom accounts for all State of Texas Judges. On the Zoom information page, judges can request access, watch a webinar on using Zoom (also avaliable on TMCEC’s OLC here, for Judicial Credit), and find an impressive bank of resources for handling remote court appearances successfully.

Court Guidance

This page offers guidance for courts, as well as an operating plan template. If you haven’t completed your operating plan yet, the operating plan template is a wonderful place to start. Essentially, it is a word document with clickable fields where you can enter specifics regarding your court. Important takeaways from the court guidance are as follows:

  • All municipal courts must submit an operating plan to the Regional Presiding Judge for the appropriate administrative judicial region in order to hold non-essential in-person proceedings. This is the responsibility of the court’s presiding judge. If the court only has one judge, then consider that judge to be the presiding judge. This is a requirement for all courts, not just courts of record.
  • Plans should be developed with and approved by mayors and the city’s local health authority.
  • Plans must be submitted prior to holding in-person proceedings.
  • All proceedings should occur remotely unless court users are unable to successfully participate in a remote hearing for reasons beyond the court’s control. In other words, the court itself should not be the reason remote proceedings don’t occur.

Links to all municipal and county operating plans are available along with a YouTube channel directory where live feeds and recorded proceedings may be viewed.

Please get to know these resources and use them, along with TMCEC’s own COVID-19 resources!

Waiver of Fines and Costs: A Recent History

The waiver of fines and costs has long been a tool for judges when dealing with defendants that have an inability to pay. When and how waiver can be used, however, has changed drastically in the last two legislative sessions. In this entry, we will look at the evolution of waiver before and after recent legislative sessions.

Waiver prior to September 1, 2017

For a judge to be able to waive fines or costs:

1. The defendant had to default;
2. The defendant had to be indigent or have been a child at the time of the offense; and
3. Discharging the fine and costs through community service or another method would have to impose an undue hardship.

While the statute anticipated the waiver of fines or costs, the general consensus prior to the 2017 change was that waiver was an all or nothing proposition at the time of waiver. Partial waiver was not contemplated, and would only have been realistically possible if a defendant was on a payment plan and after making some payments the judge waived the remainder—likely after a change in financial circumstances.

Further, due to the requirement of default, a judge didn’t have clear authority to waive until after there was an order to pay or discharge—because without that order in the judgment, the defendant could not default. So, even if a judge considered a defendant indigent and thought waiver may be appropriate, they would still have to wait until default.

Waiver on or after September 1, 2017

A few important changes happened with the passage of H.B. 351 and S.B. 1913 in 2017. First, the bills authorized courts to waive “all or part of a fine or costs” imposed on a defendant. Second, they removed the requirement for a defendant to default. Third, courts could order waiver if the defendant was indigent or did not have sufficient resources or income to pay all or part of the fine or costs.

For a judge to waive all or part of fines or costs:

1. The defendant had to be indigent or not have sufficient resources or income to pay or have been a child at the time of the offense; and
2. Discharging the fine and costs through community service or other method would have to impose an undue hardship.

These changes also coincided with the requirement for courts to inquire into a defendant’s ability to pay with any in-court plea. With this new requirement and the removal of default as a prerequisite, judges could determine indigence and hardship at the time of judgment. This allowed judges to waive fines or costs “on the front end” so to speak. Additionally, the “all or part” addition clearly permitted judges to be very specific about what they were waiving. For instance, a judge could waive specific court costs that were assessed, but leave some costs and the fine in place. Alternatively, the judge could waive the fine, yet require the payment or discharge of all or part of the costs.

Waiver on or after January 1, 2020

With the passage of S.B. 346 in 2019, waiver changed again on January 1, 2020. Now, under Art. 45.0491, the waiver of fines is distinct from the waiver of costs. Importantly, the requirements for waiver are different for fines vs. costs now.

For a judge to waive all or part of a fine:

1. The defendant has to be indigent or not have sufficient resources or income to pay or have been a child at the time of the offense; and
2. Discharging the fine and costs through community service or other method imposes an undue hardship.

For a judge to waive all or part of the costs:

1. The defendant has to be indigent or not have sufficient resources or income to pay or have been a child at the time of the offense.

Notably, undue hardship is no longer a requirement for a judge to waive costs. With one less hoop to jump through, it is now easier to waive costs than it is to waive fines.

How have these changes altered the practice in your court?