Earlier this month, the Supreme Court of Texas officially lifted its statewide ban on in-person courtroom proceedings and jury trials, following Gov. Greg Abbott’s order to reopen the state. But a closer look at the Supreme Court order’s language and interviews with judges in a few of the state’s busiest counties reveals it’s not that simple: People can’t just flock to the courthouse immediately.
The Supreme Court’s 36th pandemic-related order, signed March 5 by Chief Justice Nathan Hecht, now puts decisions for how and when to resume in-person proceedings in the hands of each county’s local administrative judge. These judges are charged with satisfying two requirements before in-person proceedings may continue: 1) identify the health and safety protocols that every judge in the county needs to implement in the courtrooms and 2) confer with the other judges in the county to develop a trial schedule.
The Texas Lawbook checked in with the administrative judges in Dallas, Austin and Houston to see what their game plans are.
In Dallas, Jury Trials Could Resume as Early as April
Dallas County local administrative district judge Maricela Moore is cautiously optimistic about how soon jury trials could resume in the Big D.
Emphasis on the word cautiously.
Judge Moore told The Texas Lawbook last week that if the county is able to move out of Code Red in the next couple of weeks, the court system could see its first criminal trial of the year go forward April 26, with a second criminal trial proceeding May 3.
“If the criminal court[house] begins trials late April, May and has more in June, I foresee civil courts probably will follow suit and start to have trials,” she said.
But the judge emphasized that this entirely depends on whether Dallas moves out of the red zone. She’s been told by county officials that it’s possible this will become a reality in the next couple of weeks, but that the estimation was made before Gov. Greg Abbott removed the statewide mask mandate — and before anyone knows the implications of spring break and whether that leads to another surge in Covid cases.
“We’ve been consistent with the policy that as long as Dallas County health authorities indicate we’re at the red level, which is ‘stay home and stay safe,’ we’re not bringing people in for in-person proceedings,” she said.
Moreover, if there’s any inkling that the system won’t allow for people to properly social distance, “We’ll shut it down.
“I’m not going to put the health and safety of anybody on the line,” she said. “If I’m not comfortable with our ability to provide a safe environment for people to congregate in small numbers, socially distanced, with protections in place … then we should not be summoning people down to the courthouse.”
Judge Moore said that with guidance from Dallas County health officials (because “I’m not a scientist, I’m a judge”), she is currently finalizing the safety protocols and courtroom procedures that each court will need to adopt in order to safely resume jury trials. She said she’s meeting with the other civil district judges this week to discuss those protocols as well as her other recommendations.
Although the timing of when to make the call that it’s safe to resume in-person proceedings in Dallas remains a fluid situation, the act of summoning jurors is about to get a huge upgrade.
Moore said Dallas County is currently in the process of finalizing a reboot of its jury summons system, which will enable the county to summon jurors directly to the courtroom they’ve been assigned. This will eliminate the need for hundreds of people to congregate in the same central jury room for two hours when they report for jury duty.
Judge Moore said she’s been told by the vendor spearheading the reboot that the new system should be ready to go July 1. She said jurors will be able to opt in to receiving text message and email communications from jury services rather than using “snail mail services and a website that most of the time doesn’t work.”
Dale Tillery, the presiding judge over jury services for Dallas County’s civil district courts, said the new jury services system will also allow Covid-related questionnaires to be incorporated into summons “much more than they could before,” which will allow the courts to more easily assess whether a particular potential juror should report for duty at all.
Dallas County saw its first virtual jury trial — a car wreck case — in November in District Judge Martin Hoffman’s court. After it concluded, Judge Moore said she had the county’s budgeting office conduct a report on the resources incurred to conduct the trial.
Judge Tillery is also familiar with this study. He is currently spearheading a committee that — in addition to the budgetary aspect — is studying how the experience was for every player involved in the virtual jury trial.
Since January, the committee — made up of a group of prominent local trial lawyers that includes Jeff Tillotson, William Toles and Amy Witherite — has been conducting weekly meetings with the trial’s jurors, judges who have tried out other virtual platforms, the Office of Court Administration and soon the clients involved in the car wreck case, in order to provide the most in-depth assessment in the state for how viable of an option for virtual jury trials are in terms of efficiently, adequately and affordably resolving disputes.
The study comes at a time when, as of Jan. 31, there are 1,937 civil cases awaiting jury trial in Dallas district courts, according to county data obtained by The Texas Lawbook. If you add car wreck cases, county court at law cases and family cases, the total number of pending civil disputes in the county adds up to 8,127.
The committee is aiming to complete a report on its findings next month.
Based on what the committee has learned so far, both Judge Tillery and Judge Moore agree that while virtual jury trials could be part of the solution in clearing the courts’ backlog, they won’t be the solution.
“It’s a viable solution for some cases,” Judge Tillery said, “but for the large number of more complicated, multiparty cases, it’s just not the answer.”
Something else telling that the committee has learned through the process, Judge Tillery pointed out, is that “jurors love the convenience” of the virtual trial, “but almost all said, ‘If it were my case, I wouldn’t want it remote.’”
When looking at the costs alone to conduct a virtual jury trial, Judge Moore said her recommendation to the other judges is “going to be that we not take our resources away from trying to get back to in-person trials.”
But she clarified that she’s not ruling out the possibility that the county will use virtual trial proceedings in any capacity, such as hybrid proceedings.
At this point, she said, “Everything is on the table.”
In Houston, Judges Are Already One Step Ahead
If you’re in a civil dispute in Harris County and both sides want to proceed with an in-person jury trial, that option is already available for resolving your case.
In fact, it has been since August, and since then Houston courts have tried between 75 and 80 in-person civil and criminal jury trials, Harris County local administrative judge Robert Schaffer told The Texas Lawbook last week.
The reason is because the Harris County courts have been conducting jury selection in NRG Stadium, which is owned outright by the county. Judge Schaffer said the 125,000-square-foot facility allows jury pools spread out in a “wide-open space” to adequately carry through with social distancing. Once juries are selected they return to the health-official-inspected courtrooms, which, in similar fashion to some of the state’s federal courts, are equipped with plexiglass and hand sanitizer, and offer ample space to spread the jury out in the gallery.
The use of the NRG Stadium and socially distance-equipped courtrooms were part of a plan Harris County submitted to the Office of Court Administration for approval last year to show that it could conduct in-person jury trials safely.
“It’s actually been going quite well,” Judge Schaffer said of its current system. “The judges who have been conducting jury trials are very serious about keeping things safe. The litigants, I think, are glad to have gotten their cases resolved.”
Figuratively speaking, if the courthouse was a restaurant, Judge Schaffer estimated that the courtroom proceedings are running at about 25% capacity as things currently stand, but he’s not sure they can currently operate on a much larger scale than that.
With use of the NRG Stadium, Schaffer said the Houston courts are able to pick “four juries at a time in any one day.” But jury trials are currently on pause because the stadium was being used by the Houston Livestock Show & Rodeo, which ended Sunday.
Judge Schaffer didn’t have an available figure for how large the case backlog is in Harris County, but he said the civil dockets have “increased markedly” because of the double-whammy of Covid-19 and Hurricane Harvey — which put many civil trials at a standstill so that criminal judges, who were deprived of their courthouse due to hurricane damage, could keep their dockets rolling in the civil courthouse.
When asked about virtual trials, Judge Schaffer said he was aware of just one taking place recently in civil District Judge R.K. Sandill’s court, and that he understands “it went well.” He said the case “involved a single issue” and that he believes Judge Sandill is planning to conduct another virtual trial “within the next month or so.”
Judge Schaffer said SCOTX’s 36th order will “probably not” affect the jury trial system in place at this time but that it will affect in-person proceedings.
He said most of the Houston courts will likely continue conducting nontrial proceedings virtually unless it’s a matter that needs to be in-person, such as inmate fingerprinting in criminal cases.
Last time he counted, Judge Schaffer’s role as local administrative judge requires him to collaborate with 116 judges in Harris County, so he has asked each division to provide him with their in-person proceeding schedule and other logistics for him to evaluate.
“The idea is that if we’re going to conduct in-person proceedings,” he said, “they are staggered so large numbers of people aren’t coming into the courthouse.”
In Austin, No Immediate Changes Planned
Travis County local Administrative Judge Lora Livingston said that the Austin courts will keep their current, all-virtual system in place until at least June 1. She said that’s when the Texas Supreme Court’s executive order expires, but she also gauged it as a good timeframe to figure out what the new system will be.
“Even if I had a crystal ball and could figure out what should happen next, it will take until June 1 to implement,” Judge Livingston told The Texas Lawbook. “What I want the public to know is … we are trying to be as thoughtful as possible to keep every [courthouse] participant safe. We’re doing our best to make sure that coming back in person doesn’t jeopardize someone’s health.”
She said she currently has more questions than answers for how to do that and what it will mean.
For example: Will the Austin judges have to change their jury week/nonjury week format to accommodate the influx of cases? Will the civil courts need to provide space to the criminal courts to get caught up? Will Travis County bring in visiting judges to help with civil work? Should the Austin courthouse adopt an approach similar to the Dallas federal courts, in which there’s only one trial per floor so that people can spread out into multiple courtrooms? Will all the safety protocols stretch out a two-day trial into a six-day trial?
“I don’t have any idea what this is going to look like,” she said. “It’s what I stay awake at night thinking about — what I spend my time trying to plot out, plan out, spreadsheet out and capture graphically so we can understand what needs to happen to accommodate the public’s needs and get cases resolved.”
But she said she has a series of meetings set up to “work through the issues” and didn’t rule out the possibility that there might be a testing period to evaluate how to reopen the courts and that the county might implement a hybrid system.
In the meantime, Travis County has been embracing the virtual jury trial. Judge Livingston said the Austin courts have conducted “four or five” virtual trials since the fall, with a couple of more trials scheduled to resume Monday.
She said so far the virtual trials have been successful in helping disputes get resolved — primarily because whether virtual or in-person, the trial setting promotes an openness to settlement.
“One of the reasons we’ve been so committed to being available in a virtual environment is that cases have to go to trial, and it’s less important in my mind that they happen in person or virtually,” she said. “It’s more important that they happen. The fact that a trial will happen Monday will encourage parties to prepare for trial or to settle.”