Supreme Court

Texas Supreme Court Coronavirus Update 

TEXAS SUPREME COURT advisory

Contact: Osler McCarthy
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TEXAS SUPREME COURT CORONAVIRUS UPDATE

Chief Justice Nathan L. Hecht has ordered eviction proceedings for residential property and filing deadlines in eviction cases be delayed until after April 30, extending the original deadline set in the fourth emergency order.

The ninth emergency order, issued Monday, establishes:

¶ Trials, hearings or other proceedings under Texas Property Code chapter 24 and civil procedure Rule 510 may not be conducted and all deadlines tolled until after April 30, 2020.

¶ A writ of possession may issue, but the posting of the written warning required by Property Code section 24.0061(d)(1) and the writ’s execution may not occur until after May 7 and deadlines in Rules 510.8(d)(1)-(d)(2) are tolled while the order remains in effect; and

¶ New filings may be accepted, but the time in Rule 510.4(a)(10) is suspended, and issuance and service of citation may not occur until after April 30, 2020.

¶ An eviction case may proceed if, but only if, a court orders the eviction to proceed and stating its procedures upon the plaintiff’s showing a tenant or a tenant’s household members or guests pose imminent threat of physical harm to the plaintiff, the plaintiff's employees, or other tenants, or criminal activity.

The ninth order, effective immediately, and expires April 30 unless extended by the chief justice.

Other orders so far:

The first (jointly issued with the Texas Court of Criminal Appeals): clears the way for video- and teleconference proceedings and to postpone certain deadlines affecting cases.

The second: orders that child-custody schedules following school calendars shall follow the original school schedule as published despite school closings.

The third (amending the first emergency and jointly issued with the Court of Criminal Appeals): establishes court proceedings may be conducted “away from the court’s usual location with reasonable notice and access to the participants and the public,” eliminating the venue limitation to allow a judge assigned to an involuntary-quarantine challenge to preside from afar.


The fourth: superseded by ninth emergency order: addressing hearings, trials and other proceedings and deadlines for residential-property evictions.

The fifth: delaying all deadlines in attorney professional-disciplinary and disability proceedings until May 8.

The sixth: ordering certain State Bar elections only by electronic balloting.

The seventh: existing court orders in child-possession cases shall control “in all instances” to determine rights to and access to children, regardless of so-called shelter-in-place mandates or other restriction on movement

The eighth: delays limitations in civil cases from March 13 until June 1, subject to extension.

The ninth: extends the fourth emergency order and extends evictions deadline to April 30.

► All service and statute-of-limitations deadlines have been delayed in civil cases from March 13 until June 1 unless the chief justice extends it, under a Texas Supreme Court order issued Wednesday, April 1.

The tolling does not affect deadlines for filing appeals or other appellate proceedings, but the order notes that requests for any such relief should be “generously granted” by the particular court.

The order amends the third paragraph of the first order, addressing problems raised by the sweeping coronavirus pandemic, and removes discretionary language on limitations. In a letter to the Court last week, nine bar association and section leaders requested the mandatory language.

“The use of the term ‘may’ leaves courts, the bar, and parties with no understanding of how to address the potentially dispositive issue of limitations that are arising while the nation is in this moment of unprecedented crisis,” the letter stated. “The practical effect of the language suggests there could be various application or enforcement of statute of limitations for cases filed in Dallas County as opposed to filed in Williamson County, effectively allowing different rules for all 254 counties.”

Bar exam. The Board of Law Examiners continues to prepare to offer the Texas bar examination in July and will postpone it to comply with state and national directives for protection of the health and safety of those who take the exam and examination staff, according to the board’s executive director, Susan Henricks. Any decision to postpone the July examination will be made in consultation with the Court and no later than May 5. If the examination is postponed, it would be postponed to September 29-October 1, 2020, at venues to be determined.

► The Texas Supreme Court issued a seventh emergency order Tuesday, March 24, stating that existing court orders in child-possession cases shall control “in all instances” to determine rights to and access to children, regardless of so-called shelter-in-place mandates or other restriction on movement by governments during the COVID-19 pandemic.

This order notes that parties may alter a possession schedule by agreement if allowed by court order, or courts from modifying their orders.

Effective March 24, the order expires May 8, 2020, unless extended by the chief justice.

► In an order approved Monday, March 23 the Texas Supreme Court has amended State Bar rules to allow the bar’s meetings and those of its board and committees to be conducted remotely and not in person. The order covers all proceedings at State Bar meetings, those of its directors, executive committee and all other committees and sections.

Voting will be allowed without being physically present.

The order stipulates that such remote meetings must be founded on existence of an emergency or public necessity under Texas Government Code chapter 551 – the state’s open-meetings act – and a quorum at one location is “difficult or impossible.”

The order is the latest in a series responding to the spread of the novel coronavirus.

► Elections for State Bar president-elect and bar directors will be conducted exclusively by electronic vote to guard against the threat of coronavirus contamination of paper ballots, the Texas Supreme Court ordered Sunday, March 22.

The order applies also to elections for Texas Young Lawyers Association directors. The Court’s sixth emergency order following the governor’s COVID-19 disaster declaration also extends voting to 5 p.m. May 29.

The order expires at the end of the State Bar’s 2020 elections unless extended by the chief justice.

► In a fifth emergency order issued Friday, March 20, the Supreme Court delayed all deadlines in attorney professional-disciplinary and disability proceedings from March 13 until May 8, unless extended by the chief justice. The order supplements previous emergency orders.

► The Court issued a fourth emergency order Thursday, March 19, supplementing three previous orders, addressing hearings, trials and other proceedings and deadlines for residential-property evictions.

The order establishes:

¶ Trials, hearings or other proceedings under Texas Property Code chapter 24 and civil procedure Rule 510 may not be conducted and all deadlines tolled until after April 19, 2020.

¶ A writ of possession may issue, but the posting of the written warning required by Property Code section 24.0061(d)(1) and the writ’s execution may not occur before April 27, 2020, and deadlines in Rules 510.8(d)(1)-(d)(2) are tolled while the order remains in effect; and

¶ New filings may be accepted, but the time in Rule 510.4(a)(10) is suspended, and issuance and service of citation may not occur until after April 19, 2020.

¶ An eviction case may proceed if, but only if, a court orders the eviction to proceed and stating its procedures upon the plaintiff’s showing a tenant or a tenant’s household members or guests pose imminent threat of physical harm to the plaintiff, the plaintiff's employees, or other tenants, or criminal activity.

► In a third emergency order Thursday, March 19, the Court and the Court of Criminal Appeals amended the original joint order to establish court proceedings may be conducted “away from the court’s usual location with reasonable notice and access to the participants and the public.” The change omits reference to the county-venue limitation in the original order so, for example, a judge assigned to an involuntary-quarantine challenge may preside from a location across the state.

That third order also clarifies that court deadlines and procedures subject to modification or suspension apply specifically to the Texas Family Code’s one-year deadline for dismissing parental-rights-termination suits under Family Code section 263.401.

And the order notes courts must not conduct “non-essential proceedings in person contrary to local, state, or national directives, whichever is most restrictive, regarding maximum group size.”

The order ends no later than 30 days after the governor’s disaster declaration ends.

► In other related developments Chief Justice Nathan L. Hecht ordered the Supreme Court Building indefinitely closed to the public Wednesday, March 18, in expanding efforts to thwart spread of COVID-19. The State Preservation Board also closed the adjacent Capitol complex.

► Under an order issued late Tuesday, March 17, the Texas Supreme Court emphasized that court-ordered child-custody schedules following school calendars shall follow the original school schedule as published even as so many schools close to constrain the developing coronavirus pandemic.

“Possession and access shall not be affected by the school’s closure that arises from an epidemic or pandemic, including what is commonly referred to as the COVID-19 pandemic,” the order clarified. But parties were not barred by the order from altering a possession schedule by agreement if allowed by the foundational court order, or courts from modifying their orders.

The latest order follows one Monday, March 16, that postponed four cases set for oral argument March 25 in Austin. The Court last week earlier canceled oral argument set for April 9 in El Paso.

► The Supreme Court has issued two other orders and joined with the Texas Court of Criminal Appeals in a fourth to address potential judicial ramifications from the coronavirus threat in Texas.

Original joint emergency order

In efforts to protect court participants and court staff because of coronavirus concerns, the Supreme Court and Court of Criminal Appeals issued a joint emergency order that clears the way for video- and teleconference proceedings and to postpone deadlines affecting cases.

The order follows Gov. Greg Abbott’s statewide disaster declaration and runs no later than 30 days after the governor’s disaster order ends.

The joint order follows two others by Chief Justice Nathan L. Hecht assigning district and court of appeals judges to hear enforcement cases challenging involuntary quarantines. Both were issued under emergency powers in the Texas Health and Safety Code for controlling infectious disease.

Under the order, state courts may modify or suspend any and all deadlines and procedures, “whether prescribed by statute, rule, or order,” and may extend limitations statutes in any civil case. Court proceedings may be conducted outside a court’s usual location in the venue county but must provide reasonable notice and access to the participants and the public. Any such modifications and limitations may be discretionary and without a participant’s consent but are required when “risk to court staff, parties, attorneys, jurors and the public” exists.

In court proceedings, sworn statements made out of court or sworn testimony given remotely, such as by teleconferencing, videoconferencing or other means, may be considered as evidence. The order allows anyone involved in any hearing, deposition, or other proceeding of any kind – “including but not limited to a party, attorney, witness, or court reporter, but not including a juror” – to participate remotely.

The order notes that its provisions are subject only to constitutional limitations.

The order also:

¶ Requires every participant in a proceeding to alert the court if the participant has, or knows of another participant who has, COVID-19 or flu-like symptoms, or a fever, cough or sneezing and that courts take any other reasonable action to avoid exposing court proceedings to the threat of COVID-19.

¶ Take any other reasonable action to avoid exposing court proceedings to the threat of COVID-19.

Orders assigning judges and appellate justice in involuntary-quarantine cases

On March 6 the Supreme Court issued a first order assigning 31 district judges to hear cases involving involuntary quarantines outside their judicial administrative regions and followed that March 13 by assigning 21 Texas appeals court judges to hear appeals in any court-of-appeals district from involuntary quarantine cases.

No challenges to ordered quarantines had been reported by March 16.

The joint emergency order runs until May 8, unless extended by the chief justice. Both judicial-assignment orders are scheduled to end September 30.

Bar exam. The Board of Law Examiners continues to prepare to offer the Texas bar examination in July and will postpone it to comply with state and national directives for protection of the health and safety of those who take the exam and examination staff, according to the board’s executive director, Susan Henricks. Any decision to postpone the July examination will be made in consultation with the Court and no later than May 5. If the examination is postponed, it would be postponed to September 29-October 1, 2020, at venues to be determined.