Texas

Court Emergency Declared – Restrictions Imposed

Texas Supreme Court, Court of Criminal Appeals Issue Succession of Emergency Orders

The First Emergency Order (March 13) requires each court to avoid risk and gives each judge the discretion to manage their courts including using remote appearance and modifying deadlines and rules. The Second Emergency Order (March 17) clarifies that child possession schedules under existing court orders are not affected by a disruption in school. The Third Emergency Order (March 18) amends the First Order in reaction limitations on social gatherings and provides guidance on essential versus non-essential proceedings. The Fourth Emergency Order (March 18) stops and modifies evictions.

On March 20, a Fifth Emergency Order was issued concerning the tolling of deadlines in connection with attorney disciplinary and disability proceedings. This order supplements, not amends prior orders and is retractive to March 13, 2020 until May 8, 2020.

On April 9, 2020, the Texas Supreme Court issued its Tenth Emergency Order requiring that in any action to collect consumer debt as defined by Texas Finance Code Section 392.001(2): 1) A writ of garnishment under Rule 658 of the Texas Rules of Civil Procedure may issue, but service of the writ of garnishment may not occur until after May 7, 2020; 2) Receivers appointed under Chapter 31 of the Texas Civil Practice & Remedies Code may remain active but must not freeze any accounts at financial institutions as defined by Texas Finance Code Section 59.001(5) while this Order remains in effect; 3) For any accounts that are currently garnished, the parties are strongly encouraged to reach an agreement on the garnishment, and courts are encouraged to aid and facilitate a quick adjudication; 4) A request for default judgment may be filed, but no hearings shall be set and the time to respond or file an answer will be tolled until April 30, 2020; and 5) No court shall dismiss a case for want of prosecution while this Order remains in effect. The Order is in effect until April 30, 2020, except for item 1 above, which remains in effect until May 7, 2020.

In addition to emergency orders, the Office of Court Administration (OCA) issued guidance reports. The collective reports and orders may be found  in the March 19th report. Although the orders lay down a framework for courts to operate, each court has discretion to use the broad authority issued under the orders. While the OCA requested courts notify it of closures to post to the public, such is not mandatory and can’t be relied upon.

Discretionary powers

 Courts may suspend or modify deadlines.
 Civil courts may modify the statute of limitations.
 Courts may require or allow remote appearance by participates such as attorneys, court reporters, witnesses.
 No remote appearances by juries.
 Courts may consider evidence of sworn statements made out of court or sworn testimony given remotely.
 Courts may conduct proceedings away from the court’s usual location.
 Require participants to notify the court of potential exposure or illness.
 Courts may take other reasonable action to avoid exposure of COVID-19.

Essential versus Non-essential proceedings

 The 3rd Order prohibits judges from conducting non-essential proceedings that would be contrary to the most restrictive local, state, or national directives regarding maximum group size.
 No limitation on remote appearances.
 Governor’s office orders limitations on gatherings of more than 10 people; therefore, courts should not schedule any in-person proceedings that would cause more than 10 people.
 Examples of essential functions: criminal magistration proceedings, CPS removal hearings, temporary restraining orders/temporary injunctions, juvenile detention hearings, family violence protective orders.

Evictions

 The fourth order prohibits a trial, hearing, or other proceeding in an eviction to recover possession of residential property under Chapter 24 of the Property Code and Rule 510 under the Texas Rules of Civil Procedure.
 The prohibition in effect until April 26, 2020.
 The Order permits new filings of eviction cases, but prohibits issuance and service of citation until after April 19, 2020.
 Such proceeding may move forward provided all the following conditions are met:

 Plaintiff files a “sworn complaint for forcible detainer for thereat to person or for cause;
 The corrupt determines the facts and ground for evictions stated in the complaint, under oath with personal knowledge, taken as true, show that the actions of the tenant, or the tenant’s household members or guest, pose an imminent threat of (1) physical harm to the plaintiff, the plaintiff’s employees, or other tenants, or (2) criminal activity; and
 The court signs an order stating procedure for the case to proceed

Tolling – Federal – Northern District of Texas

The U.S. District Court for the Northern District of Texas entered Special Order No. 13-5 on March 13, under which “[a]ll deadlines are suspended and tolled for all purposes, including the statute of limitations, from today through May 1, 2020.”