One year ago next week, the Texas Supreme Court entered its first emergency order related to the Covid-19 pandemic. For 12 months, state judges across Texas have been nearly prohibited from conducting in-person jury trials for fear of spreading the deadly virus.
The result is a backlog of thousands and thousands of civil and criminal jury trials that continue to sit on court dockets waiting for jurors to be summonsed, Texas Supreme Court Chief Justice Nathan Hecht told The Texas Lawbook in an interview this weekend.
Juries decided more than 9,000 disputes in 2019. Last year, the number fell to only 200. And it wasn’t because there were fewer cases.
On Friday, the state’s highest court took the first major step in addressing the issue when it lifted the statewide ban on in-person court proceedings and trials.
In a six-page order – its 36th pandemic-related emergency order issued since last March 14 – the justices decided that local administrative and presiding judges now have the authority to determine if health and safety protocols have been met to conduct in-person hearings.
The appellate courts across Texas are also permitted to conduct in-person oral arguments, though Chief Justice Hecht said that the state Supreme Court will continue to have remote arguments until the fall term.
“Nobody knows what the answers are, but we are going to be very careful.” — Chief Justice Nathan Hecht
That being said, Chief Justice Hecht said he strongly encouraged judges to continue to conduct remote hearings and to require face masks and social distancing when in-person proceedings.
The order states that Texas judges should “take any reasonable action to avoid exposing court proceedings to the threat of Covid-19, including requiring compliance with social distancing protocols and face coverings worn over the nose and mouth.”
“Upon request and good cause shown by a court participant other than a juror — including but not limited to a party, an attorney, a witness, or a court reporter — a court must permit the participant to participate remotely in any proceeding, subject to constitutional limitations,” the order states.
The Friday order was signed by six justices. Justices Jeff Boyd, John Devine and James Blacklock dissented, but they gave no reason.
“There are times when remote or Zoom hearings are just not going to work,” the chief justice said. “Nobody knows what the answers are, but we are going to be very careful.”
Chief Justice Hecht said judges need to set up communication protocols that ensure that no lawyers, parties to the litigation or juries have tested positive for Covid-19 and haven’t had any related symptoms.
“The idea is to get judges to think about clean and safe courts,” he said.
During the past year, about 200 courts in Texas submitted detailed proposals for in-person proceedings that included all the necessary health safety protocols, and all 200 were approved by the administrative office of the Texas courts.
But the backlog of jury trials remains a huge problem.
Texas courts averaged 180 jury verdicts weekly in 2019, but it was only four verdicts a week last year.
“It is hard to tell exactly where we are on this,” Chief Justice Hecht said. “The criminal felony trials are clearly stacking up and those will put other kinds of jury trials even further behind.”
He said he has asked the Texas legislature for $11.5 million in funding for extra visiting judges – up from $5 million in the last budget. He said courts may need to consider doubling up the number of judges assigned to each courtroom.
“Jury trials will steadily pick up across the state,” he said. “Judges are figuring it out.”
The remote court hearings have had one positive impact.
“Participation is way up,” Chief Justice Hecht said. “If people can just click on a link, they show up more because they don’t have to take off time to drive to the courthouse.”