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Urgent Updates
What guidance has the Texas Supreme Court provided to
municipal courts regarding in-person and remote proceedings?
On September 18, the Supreme Court of Texas issued their 26th Emergency Order Regarding the COVID-19 State of Disaster,
which provides limitations and criteria related to jury trials across the
state, including for municipal courts. This new executive order replaces the
22nd Emergency Order, and is effective beginning October 1, 2020, and running
through December 31, 2020.
Specific to municipal courts, the Emergency Order No. 26
provides the following:
-“A justice or municipal court must not hold an in-person jury
proceeding, including jury selection or a jury trial, prior to December 1.”
-“In criminal cases where confinement in jail or prison is a
potential punishment, remote jury proceedings must not be conducted without
appropriate waivers and consent obtained on the record from the defendant and
prosecutor. In all other cases, including cases in justice and municipal
courts, remote jury proceedings must not be conducted unless the court has
complied with paragraph 6(d).” (Note: Paragraph 6(d) provides that “the court
has considered on the record any objection or motion related to
proceeding with the jury proceeding at least seven days before the jury
proceeding or as soon as practicable if the objection or motion is made or
filed within seven days of the jury proceeding.” It is unclear if a
non-record municipal court must consider any objections or motions “on the
record.”)
-That the regional presiding judge must “ensure that all trial
court judges in each region, including justices of the peace and municipal
court judges, do not conduct in-person proceedings, including in-person jury
proceedings, inconsistent with the Court’s Orders and the latest Guidance
issued by the Office of Court Administration” and “assist each region’s local
governments and courts to ensure that courts have the ability to conduct
court business.”
In addition to the above, municipal court staff must also
consider the following requirements for any non-jury proceeding: “Courts must
not conduct in-person proceedings contrary to the Guidance for All Court Proceedings During COVID-19 Pandemic
(“Guidance”) issued by the Office of Court Administration, which may be
updated from time to time, regarding social distancing, maximum group size,
and other restrictions and precautions. Prior to holding any in-person
proceedings, a court must submit an operating plan that is consistent with the
requirements set forth in the Guidance. Courts must continue to use all
reasonable efforts to conduct proceedings remotely.”
Interested city officials can access more COVID-19 municipal
court information from the Texas Municipal Courts Education Center (TMCEC).
Municipal court personnel can also contact TMCEC’s legal department with
questions about the application of the new order.
Further Updates
Do the governor’s motor vehicle registration statute
suspensions affect junked vehicle ordinance enforcement?
That’s a good question, and even the experts aren’t
sure. The ordinance enforcement issue relates to the use of an expired
motor vehicle registration as evidence that a vehicle is “junked.” But
the Texas Department of Licensing and Regulation says towing from private
property is suspended, which may render enforcement moot.
Back in March, the governor suspended various statutes and rules requiring registration
for motor vehicles that operate on public highways. (The idea is –
presumably – that registration isn’t necessarily a safety issue, and the
requirement to do so would lead to long lines and crowds at DMV
offices.)
The statutory definition of a “junked vehicle” is a motor
vehicle that is self-propelled, displays an expired license plate or does not
display a license plate, and is: (1) wrecked, dismantled or partially
dismantled, or discarded; or (2) inoperable and has remained inoperable for
more than 72 consecutive hours, if the vehicle is on public property, or 30
consecutive days, if the vehicle is on private property. Transportation Code
§ 683.0711 allows a city to adopt a more inclusive definition of a “junked
vehicle” than the statutory definition. Prosecutors typically use expired
registration as evidence to prove that a vehicle meets the definition.
Without it, the elements become much more difficult to prove.
None of that may matter, however, because TDLR has advised that the governor’s suspensions prevent a
towing company from towing vehicles from private property for expired
registration or renewals:
“Due to the extension granted for obtaining the initial
registration or renewal of registration for a vehicle, tow companies may not
tow vehicles from private property for expired registration or renewals until
further notice.”
The bottom line is that the suspensions could be read to have
created a sort of “grace period” for vehicle registration, making enforcement
of a junked vehicle ordinance questionable. As with all complex legal
matters, each city official should consult with their city attorney prior to
acting (or not acting) on the above.
City attorneys with questions should contact Amber
McKeon-Mueller, TML assistant general counsel, at amber@tml.org.
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