In contrast to many businesses opening around the state, Texas courts will not be able to hold jury trials until at least August 1, according to the Texas Supreme Court in its “Seventeenth Emergency Order Regarding the COVID-19 State of Disaster” issued on May 26.
The order further requires all courts to “continue to use all reasonable efforts to conduct proceedings remotely.”
Judge Patricia Baca Bennett of the 360th Judicial District Court, a family law court in Tarrant County, is concerned about continuing to operate remotely and wants to get back to more in-person hearings.
“This was fine for a six-week fix,” Bennett told The Texan, but asserted that the remote “Zoom” hearings are not an adequate substitute long-term.
She explained several challenges that come with remote hearings like dropped connections and poor audio that cause delays and interruptions to hearings. It is also a challenge for attorneys to privately communicate with their clients during the hearing if they aren’t in the same room.
“The body language is also missing in a remote hearing,” Bennett explained.
Judge Brooke Allen, a probate court judge in Tarrant County, also has concerns. For essential hearings regarding mental commitments and guardianships where people are subject to losing their personal liberty and fundamental control over their lives, she sees in-person hearings as critical to due process.
“We need to be able to see and read body language and see if a witness is being prompted,” Allen explained to The Texan. “People who are having their fundamental liberties affected ought to be able to confront witnesses and have their attorneys question the witnesses in person.”
Both Bennett and Allen have been conducting in-person “essential” hearings since the coronavirus-related closures began.
“It feels like the rules have been tightened,” Bennett said.
“We are opening up Texas, but now courtrooms are more restricted than they have been for the last two months,” Allen added.
Allen has been conducting essential hearings for temporary restraining orders, temporary injunctions, and temporary guardianships during the last two months’ coronavirus lockdown.
“We consulted with a medical provider from John Peter Smith. We had people socially distanced, we clean the courtroom before and after, we limit the courtroom to ten people, and we allow people to wear masks if they prefer,” Allen said. “But now we are told no more until we have a plan.”
Allen said that she was threatened with a judicial ethics complaint if she continued having in-person hearings before a county-wide plan was approved.
The Supreme Court orders that a court submit an operating plan detailing how it will meet requirements for in-person proceedings that take place on or after June 1.
However, the Office of Court Administration’s guidelines don’t allow for individual court plans, but require the local administrative district judge to submit a plan for operating all courts in the county after conferring with the local judges, health officials, and county judge.
The plan must include (1) screening procedures for those entering the courthouse, (2) scheduling to reduce the number of people in the courthouse at once, (3) protective measures for vulnerable populations, (4) social distancing guidelines, (5) adequate supplies of hand sanitizers, (6) requirements for face coverings, and (7) cleaning routines between hearings.
Tarrant County had not yet issued its plan on June 1. According to Judge Bennett, they are still waiting on decisions by the Tarrant County Commissioners Court on Tuesday, June 2 about procedures for entering the county buildings where the courts sit. Local administrative Judge Jerry Hennigan could not be reached for comment about the local plans at the time of publication.
Bennett had a plan for opening her court for jury trials on July 13. She believes each case should be considered individually, an approach she takes for every decision she makes in her courtroom.
“We are elected to do our job as judges; we already look at cases individually. There are definitely ways to make this work,” she said. Bennett added that she has plenty of space in her courtroom to maintain safe distances between parties.
Both judges have multiple concerns about screening everyone who wants to enter the courthouse.
“The courthouse is a public building and should be open. Limiting access to the courts is a problem. There are greater restrictions here than in a movie theater or bar,” Bennett added.
“These guidelines feel arbitrary and not based on good science. The New England Journal of Medicine has determined masks are not very useful. Temperature isn’t a good indicator of coronavirus either because many people are mildly symptomatic or asymptomatic,” Allen said.
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Kim Roberts is a 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.