JudicialConstitutional Concerns Raised by Lack of In-Person Jury Trials in Parts of Texas

The Constitution guarantees the accused a right to a fair and speedy trial, but it has been almost a year since jury trials have taken place regularly across Texas.
January 12, 2021
Justice delayed is justice denied. In Texas, most jury trials have been delayed for nearly a year.

The Texas Supreme Court suspended all jury trials on March 19 due to concerns surrounding the spread of coronavirus. They began to be allowed on a very limited basis over the summer.  Between June and October, Texas courts held 44 jury trials, both civil and criminal.

The resulting impact on plaintiffs and criminal defendants is considerable.

In contrast, the State of New York resumed trials in September and held 47 trials from September to November, with an added 12 in New York City. Trials were stopped again in New York in November. 

Kendall Castello is a criminal defense attorney in Dallas who practices in most of the counties in North Texas. He says the lack of jury trials presents a significant disadvantage for his clients who want to have the case against them heard and decided.

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“It has the potential for speedy trial issues. The right to a fair and speedy trial is guaranteed by the constitution and that is jeopardized by not being able to get to trial,” Castello explained to The Texan.

Likewise, Dallas personal injury trial lawyer Charles Bennett hasn’t participated in any trials since the COVID-19 pandemic began. Because there are no jury trials, there is no incentive for defendants, often insurance companies, to settle claims with the injured plaintiffs.  

“I’ve been able to settle some smaller cases, but larger cases are stalled,” he told The Texan

Tim O’Hare, an attorney in Carrollton, says his clients are frustrated. “A lot of our clients have significant medical bills and can’t pay them. The bills are getting sent to collections, resulting in dings on their credit scores.”

O’Hare pointed out that most cases usually settle in about a year, but because there is “no fear of trial, there is no pressure on the insurance company to settle right now.”

One of his clients couldn’t work for two months due to an injury and received no pay while she was off work. She then lost her job, and it took her three months to find a new one. She had bills racking up so she had to take what O’Hare considered an unreasonable offer, about half of what she would have received as a settlement under normal circumstances.

“She just couldn’t wait any longer,” O’Hare explained.

He believes the COVID-19 suspension of jury trials will likely have an impact on courts for years to come due to the back-up of court dockets.

All of the attorneys mentioned concerns they have about the concept of virtual trials.

“Can the defendant constitutionally confront his accusers? How can we ensure the jurors are paying attention via Zoom?” Castello asked.

“They are certainly not ideal,” O’Hare told The Texan, “but I would rather see that than no trial. If we can fly in airplanes, go to Disneyworld, eat in restaurants, then we can have jury trials.”

Bennett thinks the biggest problem with virtual trials would be selecting the jury. The need for internet access would prevent some jurors from participating, and parties are entitled to a jury of their peers.

“We are trying hard to figure out how to do this without leaving the Constitution in the rearview mirror, but it has proven to be difficult,” Castello added.

On the other hand, Bennett appreciates the efficiency and time savings of having hearings on procedural motions via Zoom.  

“It has actually been more efficient. I hope that it continues,” Bennett told The Texan.

Tarrant County Probate Judge Brooke Allen is still waiting for in-person trials to resume in her court. 

According to the Office of Court Administration’s website, only one trial has been conducted in Tarrant County since June. 

In December, the Office of Court Administration updated its “guidance for all court proceedings during the COVID-19 pandemic.” 

It required that all operating plans for in-person proceedings around the state be updated and re-certified after two criteria were met: (1) consultation with the public health authority about local pandemic conditions and (2) identifying the criteria courts will use to determine when to conduct in-person hearings.

The Tarrant County administrative region was not approved for in-person proceedings after consulting with the public health official, due to the current rise in COVID-19 cases and hospitalizations.  

The denial doesn’t say when in-person proceedings like jury trials can begin or under what conditions.

Allen said that the previous plan in place since summer allowed for some in-person proceedings, but the standard for conducting them was unclear. The new plan clarified these standards but was not approved.

Additionally, Allen is concerned about how some Texas citizens have in-person access to courts while others do not, given the constitutional issues at play.

Other counties around the state had their in-person plans re-certified and will proceed with administering justice. Cameron County, located on the border with Mexico, Brazoria County in southeastern Texas, Lubbock County in West Texas, and San Saba County in Central Texas are examples of counties that were re-certified for in-person proceedings because local health officials determined that “local pandemic conditions are conducive to in-person proceedings under precautions…contained in the plan.”

Yet all of these counties lie in “trauma service areas” with reduced operations for businesses and restaurants due to levels of COVID-19 hospitalization rates.

Tarrant County also lies in a restricted “trauma service area,” but its re-certification for in-person proceedings was denied. No expected date for allowing in-person proceedings was included with the denial.


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Kim Roberts

Kim Roberts is a regional reporter for the Texan in the DFW metroplex area where she has lived for over twenty years. She has a Juris Doctor from Baylor University Law School and a Bachelor's in government from Angelo State University. In her free time, Kim home schools her daughter and coaches high school extemporaneous speaking and apologetics. She has been happily married to her husband for 23 years, has three wonderful children, and two dogs.