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.

TMCEC Unveils New and Improved Website

Mark Goodner, TMCEC General Counsel and Director of Education, sat down with Regan Metteauer, TMCEC Deputy Director, and Patty Thamez, TMCEC Information Technology & Operations Specialist, to discuss TMCEC’s new website design.

MG: March 1, 2021 marked the unveiling of TMCEC’s new website. I love the new look and organization of it, and I’ve heard nothing but rave reviews from our constituents. I know both of you spent a lot of time and energy making this happen, Regan and Patty. Can you tell us about the process? What were the primary goals for the redesign?

RM: The primary goal was efficiency. We wanted users to be able to find what they are looking for in as few clicks as possible. Less truly is more. The old website had useful information mixed with dated, less useful information. After all, TMCEC’s website has served as a repository for resources for a long time. So much of the process was filtering the most useful information and organizing it in a user-friendly way. Don’t worry. Nothing was lost. Some information just found a new home.

Part of the process resembled shopping at a home improvement store. Choosing colors reminded me of examining paint color swatches. For any font-aficionados, much time was spent selecting EB Garamond and Roboto.

PT:  The process was complex on many levels. As a team we wanted something fresh, easy to use, and still informative. We have a lot of useful information on our website that many rely on daily. One of the primary goals was to help our constituents find that information efficiently.

MG: It looks so great, and I’ve noticed a very streamlined look and feel to it. Are there any new features of the site that you’d like to highlight?

PT: What to highlight—the entire site is fresh and new!! The announcement section allows you to see the latest news at TMCEC quickly. You can browse and expand an area of interest. We also added an index feature to The Recorder; you can now search for articles by topic, month, or year.

As mentioned above, TMCEC added a new Announcements feature to the website. Click here to visit the new page.
TMCEC’s new index feature for The Recorder. Click here to explore.

RM: New features include large buttons with icons for key website pages, tabs for each constituent type (Judge, Clerk/Court Administrator, Prosecutor, Juvenile Case Manager, and Court Security Officer), TMCEC’s new logo, and more images including a new slideshow. We also reduced the amount of content on the homepage so that important information doesn’t get lost. Users should be able to quickly see where they want to go and how to get there.

TMCEC’s new homepage featuring updated logo, large icon buttons, constituent tabs, and fresh images.

MG: I know our website had (and still has) an incredible amount of content. What was the biggest challenge in this monumental undertaking?

RM: It was like cleaning out your garage. You find things that spark fond memories, things you never knew were there, things you don’t want to let go of, and things you wish you never had. The biggest challenge was the volume itself and making hard decisions on what to keep and the best place for it. However, we had a great team who worked diligently. Like cleaning the garage, it will be an ongoing endeavor. As I said before, nothing was truly thrown away. Some documents just went into the archives.

PT: Organization and simplification of the old website was a big undertaking. The final product reflects the dedication to that goal. I am grateful to all who had a hand in the process. Special thanks to my co-workers at TMCEC and the team at Pallasart.

MG: Thank you both for telling us about the new website’s features as well as the process involved in redesigning it.

TMCEC’s website is still accessed at the same address: www.tmcec.com. Please check it out!

Court Guidance After Governor Abbott Lifts Statewide COVID-19 Restrictions

Governor Abbott issued Executive Order No. GA-34 yesterday (March 2, 2021) relating to the COVID-19 disaster. For many court personnel, the new order raised questions about the effect, if any, on court operations. Thankfully, the Office of Court Administration quickly sent out COVID Update #20. If you did not receive it, I have pasted the update below in its entirety.

Judges, Clerks, and Court Staff:

As you may know, today Governor Greg Abbott issued Executive Order GA-34, relating to the opening of Texas in response to the COVID-19 disaster, that is effective on March 10 at 12:01 am. In the order, the Governor rescinded Executive Orders GA-17 (establishing Strike Force to Open Texas), GA-25 (in-person visitation at county and municipal jails), GA-29 (requiring face coverings), and GA-31 (hospital capacity). The executive order removes operating limits for businesses, encourages but does not require wearing of face coverings, and authorizes county judges to impose certain occupancy limits in businesses and certain other establishments if hospitalization rates are high. GA-10 (daily reporting) and GA-13 (detention in county and municipal jails) remain in effect.

Several of you have reached out to determine how today’s executive order impacts the Texas courts, the Supreme Court’s Emergency Orders, and OCA’s Guidance. Since the Governor did not rescind the disaster declaration, the Supreme Court’s Emergency Orders remain in effect until the Supreme Court rescinds, amends, or allows the orders to expire. The Court’s current general emergency order, the 33rd Emergency Order, is currently set to expire on April 1, unless extended. As has been typical during the pandemic, the Court reviews its emergency orders regularly and was already planning on doing so for the 33rd Emergency Order in the coming days. We anticipate the Court will issue another general emergency order soon, and OCA will revise its Guidance to reflect any changes required by the order at that time.

I will ensure that you are provided any updated guidance or emergency orders prior to the effective date of Governor Abbott’s Executive Order (March 10).

Should you have any questions or concerns, please do not hesitate to contact us at coronavirus@txcourts.gov.

David Slayton

Administrative Director

Office of Court Administration

If you haven’t yet seen GA-34, here’s a quick summary. Effective March 10, 2021, Abbott ordered that, in all Texas counties without high hospitalizations, there are no COVID-19 operating limits for any business or other establishment, although face coverings are still strongly encouraged when it is not feasible to maintain social distancing of six feet from a person not in the same household. No jurisdiction, however, may require a person to wear or mandate face coverings.

In areas that have seven consecutive days in which the number of COVID-19 hospitalized patients exceeds 15% of total hospital capacity, a county judge may use certain mitigation strategies. The strategies include operating limits at no less than 50% of total occupancy on businesses or other establishments, but no operating limits are allowed to be imposed for religious services, public and private schools and institutions of higher education, and child-care services.

Notably, no jurisdiction may impose a penalty of any kind for failure to wear a face covering or for failure to mandate the customers or employees wear face coverings. Trespassing laws, however, may be enforced and violators may be removed at the request of a business establishment or property owner.

The full order can be viewed here.

TMCEC Announces All Virtual Training Through July 31, 2021

Mark Goodner, TMCEC General Counsel and Director of Education, sat down with Ryan Turner, TMCEC Executive Director, to discuss the rest of the TMCEC’s Academic Year.

MG: Good afternoon, Ryan. Last week, you announced to all of our constituent groups that there will be no in-person training from TMCEC through at least July 31, 2021. Why is this the best course of action right now?

RT:  Our top priority remains the safety of participants, faculty, and staff. CDC recommendations continue to discourage mass gatherings. Attending events and gatherings increases the risk of getting and spreading COVID-19. While Texas is seeing progress in its efforts to decrease the spread of COVID-19, vaccine distribution is bottlenecked, and probably will be until sometime this summer.

Current COVID-19-related limitations on in-person venues mean fewer people would have been able to attend. Furthermore, attendance would be limited to people who reside in the region. Many TMCEC events are intended to be statewide events. Under current circumstances, TMCEC can accommodate more people and accommodate them safely online.

 MG: One of the things that guided our planning for this academic year was to plan Regional Seminar agendas that could work both online virtually as well as in-person. For instance, we chose not to have breakouts because not only is teaching virtually a new challenge for our faculty, but at the onset of this year, we knew that even if the opportunity arose for us to return in-person, it would likely be a very different experience. Fewer participants. More distance. Changes to meal service. And, related to the agenda, less moving around from seat to seat in different tracks.  We have heard from constituents that they may have been waiting for an in-person seminar to fulfill their judicial education or clerk certification hours. It is clear now that there will not be any in-person Regional Seminars this year. What would you say those constituents who might be wary of a virtual training experience?

RT: Being wary of virtual training is understandable. Initially, most faculty and staff were also wary. However, after nearly a year of focusing exclusively on virtual training, two things are clear. First, TMCEC virtual events contain the same spirit our constituents have come to expect from attending in-person events.  Second, seminar evaluations show that TMCEC virtual events either meet or exceed the expectations of constituents, including those who dislike the notion of virtual training.

While we are as eager as our constituents to resume in-person training, TMCEC is continuing to work hard to make the best of a challenging situation. Particularly considering the recent announcement, I hope no one will continue to wait for in-person training to resume.

MG: You mentioned in your announcement, that TMCEC has more ways than ever for court personnel to complete their training. With respect to Judicial Education, it’s important to remind judges that every judge must complete at least 16 hours of education each and every year (and new non-attorney judges must complete 32 hours in the first year). So, while our most traditional and common form of education (the in-person seminar) is missing from the options, in this year with the state of disaster and the related suspension of the Rules of Judicial Education, judges can fulfill their hours in ways that they typically cannot. For instance, a judge could complete all 16 hours via webinar this year (or until the state of disaster is lifted and 30 days thereafter), but in most years even seasoned judges must get at least 8 live and continuous hours. Is that what you mean by more ways than ever?

RT: Yes. Registration is now open for sixteen virtual events through the end of July. These events are mostly live broadcasts that allow constituents to complete their training over a period of a couple of days. Financial aid is available.

In addition to virtual seminars, TMCEC will also have 11 live webinar broadcasts. Webinars are a separate way to complete training hours. If a person does not want to attend a virtual seminar and complete their hours by attending one event, they have the option to earn those hours piecemeal. You can either watch a webinar live and participate with people around the state. Alternatively, you can watch webinars on demand, at your own pace. Each webinar is an hour long. Webinars are free.

MG: You are waiting to make the call regarding in-person training for our scheduled Legislative Updates in August, but what would you tell our constituents about next year? How is COVID-19 affecting the planning for the 2022 Academic Year?

RT:  Like this academic year, we are actively planning for a return to in-person training. We are presently in the process of requesting proposals from hotels and venues across the state. We hope to have resumed in-person training by the time of the first regional seminar in October. However, we will continue to work to bring certainty in uncertain times. If we cannot have an event in-person, we will do our best to honor those dates and accommodate our constituents online.

MG: Thanks for chatting with me today!

RT: Thank you, Mark.

To read about all of the upcoming TMCEC programs, click on the Academic Schedule below:

Local Health Authorities

Texas municipal court personnel have spent nearly a year in some form of modified operations since the COVID-19 pandemic took hold around the world. Courts planning to commence in-person proceedings must first submit an operating plan (and a plan for recertification) to the Regional Presiding Judge. Presiding judges of a municipal court must, as part of the operating plan creation, consult with the local public health authority.

Interacting with the local health authority is a new endeavor for many municipal courts, and many court personnel have wondered about who their local health authority is and what they do.

Here are three things you should know about local health authorities:

What (or Who) are Health Authorities in Texas?

The Health and Safety Code defines a health authority as a physician appointed under the provisions of Chapter 121, to administer state and local laws relating to public health within an appointing body’s jurisdiction. A health authority must be a competent physician with a reputable professional standing who is legally qualified to practice medicine in Texas and must be a resident.

Appointment of Health Authorities in Texas

Health Authorities are appointed for a two-year term of office and are considered an officer of the state when performing duties to implement and enforce laws that protect the public’s health. Health authorities can be appointed by commissioners courts, governing bodies of municipalities, local health department directors who are not physicians, or public health district directors who are not physicians. A newly appointed health authority must immediately file copies of three forms with the Regional Medical Director of their DSHS Health Service Region: Statement of Appointed/Elected Officer (often called the anti-bribery oath); Oath of Office; and Certificate of Appointment.

How Do I Find Who My Local Health Authority Is?

Hopefully, this can be answered quickly by checking with your city manager, city secretary, or city council. If you have a local health department, it should have the information, as well. Finally, you can always check with your DSHS Health Service Region Office, where appointment forms should be on file.

OCA Update Amidst Historic Winter Storm

As Texas struggles to safely emerge from an historic winter storm, we know many of you are dealing with significant challenges. On Wednesday, February 17, 2021, David Slayton, Administrative Director of the Courts with the Office of Court Administration sent the following update. We are posting here in case you did not receive it. Stay safe and stay warm.

Judges, Clerks, and Court Staff:

 

The weather, power, and road condition situations have compounded difficulties in courts hearing cases. We have received many inquiries from judges, clerks, court staff, and attorneys requesting whether there will be any additional emergency orders from the Supreme Court responsive to the power/weather/road condition situations and permitting extensions of deadlines, etc. The Supreme Court wishes to remind judges, clerks, and court staff that the 33rd Emergency Order remains in effect and, subject to constitutional limitations, permits judges – and requires judges to avoid risk to court staff, parties, attorneys, jurors, and the public – without a participant’s consent to modify or suspend any and all deadlines and procedures, whether prescribed by statute, rule or order, for a period ending no later than April 1, 2021. Suspensions and modifications of deadlines in CPS child termination cases are permitted, and the dismissal date for those cases can be extended up to July 13, 2021 (6 months from the date of the 33rd Emergency Order). Parties wishing to obtain extensions should consult with the judge presiding in the case. Judges should use their discretion in determin`ing when the provisions of the 33rd Emergency Order can or should be applied.

 

Please stay safe,

David Slayton

Administrative Director of the Courts

Office of Court Administration

Driver’s License and Vehicle Registration COVID-19 Waiver End Dates Announced by DPS, DMV

In March 2020, Governor Greg Abbott announced via two press releases that, due to the pandemic, certain rules related to expired driver’s licenses and vehicle registrations were suspended. Detailed information about these waivers can be viewed on TMCEC’s COVID-19 Update page, located at http://www.tmcec.com/calendar/covid-19-novel-coronavirus-update/. In both press releases, Governor Abbott gave the applicable agencies discretion on how long the waivers would last.

On December 15, the Department of Public Safety (DPS) and Department of Motor Vehicles (DMV) separately announced that these waivers would end on April 14, 2021. DPS is in charge of administering driver’s licenses and DMV handles vehicle registrations. The DPS driver’s license announcement can be viewed at https://www.dps.texas.gov/director_staff/media_and_communications/pr/2020/1215a and the DMV vehicle registrations announcement at https://www.txdmv.gov/covid-19.

Now that the end is in sight, both agencies urge drivers to renew any expired driver’s licenses and vehicle registrations. The DMV announcement asks drivers to renew “by” April 14, 2021, which indicates that the waiver is still in effect on April 14 and expired registration citations may resume starting on April 15, 2021. As for DPS and driver’s licenses, in addition to the announcement, a letter dated December 15, 2020 became available at https://www.dps.texas.gov/DriverLicense/documents/extndExpDateDL.pdf. This letter indicates that the waiver period includes April 14. Thus, despite language from both agencies that the waivers end on April 14, it appears that they actually end at precisely 12:00 a.m. on April 15.






What’s the Current State of Registration and Driver License Offenses in Texas?

Today TMCEC General Counsel and Director of Education, Mark Goodner, sat down virtually with Ned Minevitz, TMCEC TxDOT Grant Administrator and Program Attorney, to discuss an issue that, since March, has been frequently asked on TMCEC’s 800-line for legal questions: “What’s the current state of vehicle registration and driver license offenses in Texas?”

MG: Ned, we are now in our ninth month since the Governor’s State of Disaster was declared on March 13, 2020. While many things have changed for courts with regards to in-court operations, virtual hearings and trials, and so on, certain things have been remained fairly consistent. For instance, Governor Abbott waived vehicle registration requirements on March 16, 2020, and isn’t that still in effect, Ned?

NM: Interestingly, Governor Abbott waived certain vehicle registration requirements via press release. He did so under powers granted to him once he declared a State of Disaster three days prior. The press release does not specify when the vehicle registration requirement waiver will be lifted. Rather, the Texas Department of Motor Vehicles (DMV), which issues vehicle registrations, has provided information on the DMV website about the current status of the waivers. According to the website, it is still in effect. DMV further states on their website that it will remain in effect until 60 days after they announce that “normal operations have resumed.” I assume that this announcement will be made on the DMV website, but we will have to wait and see. Another question we have been receiving on the 800-line is which registrations this waiver applies to. My understanding, based on a letter issued by the DMV to law enforcement agencies on April 14, is that it applies to any registration regardless of when it expired. Following the March 16 press release, some people suspected that it only applied to registrations that expired on or after March 16. It is further my understanding, however, that any citations written for expired registration prior to March 16 (the date of the press release) are still valid. As a final comment, Governor Abbott’s press release suspends eight specific provisions of the Transportation Code. Courts should carefully review the press release to see which parts of Texas’s vehicle registration law are currently suspended.

MG: In addition to Abbott’s waiver of registration, he also directed the Department of Public Safety (DPS) to temporarily waive expiration dates for Driver Licenses. This suspension is in effect until 60 days after DPS provides public notice that normal Driver License operations have resumed. According to the DPS website, it doesn’t appear that normal operations have resumed.

Screengrab from DPS website

NM: Governor Abbott issued this press release on March 18, 2020, two days after the vehicle registration waiver press release. This waiver period not only applies to standard driver licenses, but also commercial driver licenses and some other forms of identification. Unlike the registration waiver press release, this one expressly provides an end point: “60 days after the DPS provides further public notice that normal Driver License operations have resumed.” As of today, you are correct that the DPS website provides that Texas is still in this waiver period. I assume that the resumption of normal operations will be announced on the DPS website, but again, we just have to wait and see. One final interesting nugget from the DPS website is that it provides that “If your Texas DL, ID, CLP, CDL or EIC card expired on or after March 13, 2020, your card is still valid and you are not required to renew at this time.” This indicates two things to me. First, as long as it did not expire before March 13, all of these identification cards are valid until a normal operations announcement is made by DPS. So, hypothetically, if an individual is using a Driver License to prove their identity in a non-traffic setting, the authenticating authority should not reject the license as expired. Second, if an individual’s license expired on or before March 12, it does not become unexpired as a result of Governor Abbott’s press release. Governor Abbott’s press release was issued on March 18, but the DPS website appears to make it retroactive to March 13.

MG: Any final thoughts?

NM: COVID-19’s impact on municipal court operations has been fluid despite the fact that the pandemic has been constant since last winter. Municipal courts really have to stay on their toes to keep up with the numerous orders and guidelines issued by various governing bodies! TMCEC will continue working diligently to provide our constituents with any updates related to vehicle registrations, Driver Licenses, and/or court processes. I enjoyed our virtual chat, Judge Goodner! Happy Thanksgiving!

MG: Thanks for discussing this with me today, Ned. Have a Happy Thanksgiving!

The Four Notice Requirements added in 2017

Three years ago this week, I posted the following content on an earlier version of Full Court Press (still accessible at blog.tmcec.com). The post did not migrate to our new address. Since this very topic came up today in our Central Texas Virtual Regional Judges and Clerks seminars, I decided to post it again (with minor edits).

____________________________________________________

Senate Bill 1913 and House Bill 351 introduced numerous important changes related to municipal courts and fine-only misdemeanors. An important procedural difference are the several new (or altered) notice requirements that all municipal court should be aware of. See the four notice requirements below:

1. On the Citation (Art. 14.06(b), C.C.P.): A citation must contain information regarding the alternatives to full payment of any fine or costs assessed, if the person is convicted of the offense and is unable to pay that amount.

a. Sample Language: The judgment and sentence for the offense you are charged is the payment of a fine and costs. If ordered to pay a fine and costs, and you cannot pay, notify the court immediately. If you are determined by the court to have insufficient resources or income to pay, the court is required to provide you other ways to discharge the fine and costs.

b. Practice Tip: If you are still using old printed citations, the new language should be incorporated as an addendum.

2. Upon Receipt of Plea and Waiver of Jury Trial by Mail (Art. 27.14(b), C.C.P.): Upon receiving a plea and a waiver of jury trial by mail, the court shall notify the defendant either in person or by regular mail of the amount of any fine or costs assessed in the case, information regarding the alternatives to the full payment of any fine or costs assessed against the defendant, if the defendant is unable to pay that amount, and, if requested by the defendant, the amount of an appeal bond the court will approve.

a. Regular Mail: A court, justice, judge, magistrate, or clerk may send any notice or document using mail or electronic mail. This section applies to all civil and criminal statutes requiring delivery of a notice or document. Sec. 80.02, G.C.

3. Notice Prior to Warrant (Art. 45.014(e-f), C.C.P.): A justice or judge may not issue an arrest warrant for the defendant’s failure to appear at the initial court setting, unless: (1) the judge provides by telephone or regular mail notice that includes: (A) a date and time when the defendant must appear before the judge (defendant may request an alternative date); (B) the name and address of the court with jurisdiction in the case; (C) information regarding alternatives to the full payment of any fine or costs, if the defendant is unable to pay that amount; and (D) an explanation of the consequences if the defendant fails to appear; and (2) the defendant fails to appear. Two versions of this statute still exist. Under the S.B. 1913 version, the date and time when the defendant must appear must be set within 30 days of when notice is provided.

a. Gray Areas: While the language of the statute specifies that notice is required prior to issuing a warrant for the defendant’s failure to appear, many, if not most, courts are extending the same protection prior to issuing a warrant for the underlying charge, as well.

b. Notice can be sent prior to nonappearance: Many courts are sending notice for all citations as there is no statutory need to wait for a nonappearance to offer an additional, initial appearance setting.

4. Notice Prior to Capias Pro Fine (Art. 45.045(a-2), C.C.P.): This fourth notice provision is the one that has changed the most. Initially, what I wrote below was added to the law with the passage of House Bill 351.

Before a court may issue a capias pro fine for the defendant’s failure to satisfy the judgment, (1) the court must provide notice by regular mail that includes a statement that the defendant has failed to satisfy the judgment and the date and time of the show cause hearing; and (2) either the defendant fails to appear at the hearing or based on evidence presented at the hearing, the court determines that the capias pro fine should be issued.

a. Irreconcilable?: Senate Bill 1913 was also passed in 2017, but it did not include notice language. Instead, it just included language about the hearing. Perhaps because its last record vote occurred two days after House Bill 351’s last record vote, the notice language may have never appeared in the published statute. See the following excerpt from the Code Construction Act (Chapter 311 of the Government Code).

Sec. 311.025. IRRECONCILABLE STATUTES AND AMENDMENTS. (a) Except as provided by Section 311.031(d), if statutes enacted at the same or different sessions of the legislature are irreconcilable, the statute latest in date of enactment prevails.(b) Except as provided by Section 311.031(d), if amendments to the same statute are enacted at the same session of the legislature, one amendment without reference to another, the amendments shall be harmonized, if possible, so that effect may be given to each. If the amendments are irreconcilable, the latest in date of enactment prevails.(c) In determining whether amendments are irreconcilable, text that is reenacted because of the requirement of Article III, Section 36, of the Texas Constitution is not considered to be irreconcilable with additions or omissions in the same text made by another amendment. Unless clearly indicated to the contrary, an amendment that reenacts text in compliance with that constitutional requirement does not indicate legislative intent that the reenacted text prevail over changes in the same text made by another amendment, regardless of the relative dates of enactment.(d) In this section, the date of enactment is the date on which the last legislative vote is taken on the bill enacting the statute.(e) If the journals or other legislative records fail to disclose which of two or more bills in conflict is latest in date of enactment, the date of enactment of the respective bills is considered to be, in order of priority:(1) the date on which the last presiding officer signed the bill;(2) the date on which the governor signed the bill; or(3) the date on which the bill became law by operation of law.

The two provisions did not seem irreconcilable to me, although they were different. In fact, a valid show cause hearing should include notice. So with the passage of Senate Bill 1913 in 2017 and later Senate Bill 346 in 2019, it is clear that a show cause hearing is required prior to the issuance of a capias pro fine. See Article 45.045(a-2 through a-5) for more guidance on the hearing. Of course, notice to the defendant prior to the show cause hearing should be a prerequisite.

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.