The New Normal in Texas Courtrooms

On Sept. 23, Sen. Judith Zaffirini (D-Laredo) co-hosted an informational session via Zoom with the Hispanic Issues Section of the State Bar of Texas to discuss the COVID-19 pandemic’s permanent impact on Texas courtrooms.

October 13, 2020

Legislative News

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On Sept. 23, Sen. Judith Zaffirini (D-Laredo) co-hosted an informational session via Zoom with the Hispanic Issues Section of the State Bar of Texas to discuss the COVID-19 pandemic’s permanent impact on Texas courtrooms. Sen. Zaffirini discussed Zoom’s impact on communication and presentation skills in the courtroom. Afterward, David Slayton of the Texas Office of Court Administration (OCA) talked about the virtual courtrooms of the future, and Justice Rebeca Martinez of the 4th Court of Appeals provided her perspective from the bench. The meeting was recorded and may be viewed here.

Sen. Zaffirini, in addition to holding office as a state legislator, is an award-winning communications specialist. She shared many valuable tips for litigants who plan to appear virtually in court hearings. For example, she recommended using the same hand signals in Zoom hearings as are used in the Legislature: one finger for “yes,” two fingers for “no.” And for the purposes of Zoom, she recommended three fingers for “you’re muted” and four fingers for “you’re frozen.” Sen. Zaffirini also gave tips on how to properly handle documents, how to plan your setting and how to best present yourself remotely.

Slayton began his presentation by pointing out that courts in the state are involuntarily the largest convener of people in government. Roughly 325,000 people were entering our courtrooms every day before the onset of the COVID-19 pandemic. His presentation covered a timeline of the judiciary’s response to the pandemic.

Slayton stated that Texas courts are leading the country in the number of virtual hearings. Texas judges have held 550,000 remote hearings, totaling up to 1.1 million hours. However, case filings in the state have dramatically declined — down 46%. Furthermore, while the clearance rate for civil cases has improved during this period, clearance rates for family, felony, misdemeanor and juvenile cases have all declined. These rates are trending upward month by month, as judges become more comfortable with the virtual format.

As for jury trials, 30 have been conducted during the pandemic — 27 resulted in a verdict, two resulted in a settlement or plea bargain, and one ended in a mistrial. In accordance with the Texas Supreme Court’s 26th emergency order, effective on Oct. 1, in-person jury trials are limited to district and county courts between Oct. 1 and Dec. 1 of this year. In order for those courts to hold an in-person jury proceeding, the court must comply with the procedures set forth in the order. In criminal cases where jail time or prison is a potential punishment, remote jury proceedings may not go forward without appropriate waivers and consent obtained on the record from the defendant and the prosecutor.

Slayton noted that no Texas courtrooms have jury boxes large enough to seat a full jury while complying with social distancing measures. Most juries will have to be moved to another area in the courthouse. This is simply one of the many challenges that judges have faced and will have to face in adapting to the new normal. However, important takeaways from Slayton’s presentation were that the adaption can certainly be done and that the judiciary has been extremely successful in rising to the challenge. For assistance, courts can refer to OCA’s updated Guidance for All Court Proceedings During COVID-19 Pandemic.

Offering her perspective from the bench, Martinez made suggestions to judges for improving legal proceedings by embracing technology. She urged judges to ensure due process is protected by abiding by the following principles: making sure litigants receive proper notice of hearings; using plain language to present legal information; designing systems that connect litigants with legal help; and reviewing online dispute resolution agreements before hearings.

She also recognized that there is currently a backlog of jailable criminal offenses and cases that require jury trials. She has noticed increased interlocutory appeals and writs of mandamus, though case filings overall are decreasing. Martinez stressed that there is an emerging need for judges to accept technology in order to eliminate this backlog. She echoed Slayton’s statements that a willingness to adapt is the key to success in virtual courtrooms. She encouraged courts to “test and adapt, try and fail, and move on from technology that isn’t solving problems.”

Sen. Zaffirini is continuing to host such Zoom sessions on other important topics.

For additional information on this article, please contact Amy Befeld.