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Episode 13 - When the Courts are Quarantined: Social Distancing Your Case


Episode 13 - When the Courts are Quarantined: Social Distancing Your Case

Welcome to the top Texas Lawyers podcast. This podcast is brought to you by the law firm Abercrombie and Sanchez PLLC.

Your hosts are Brian Abercrombie and Samuel Sanchez. Brian has been practicing law for 18 years and his board certified that sort of legal specialization in the area of family law. Sam has been practicing for 13 years, is licensed in both Texas and Florida, and is a certified mediator. This podcast is for informational purposes only and all views are the opinion of the hosts. It's not designed to provide legal advice for your particular legal matter, and it should not replace the advice of competent counsel. Welcome. And we hope you enjoy the top Texas Lawyers podcast.

Good afternoon and welcome to the top Texas Lawyers podcast.

We are here hunkered down, shelter-in-place, in Montgomery County. And I think, Sam, you're hunkered down and sheltered in place in Fort Worth, Texas. Is that all right?

I am, I am. Tarrant County in the same position of a lot of big cities.

And like I said with me, I'm your host, Brian Abercrombie. And with me, as always, is my co-host and my partner in crime, Sam Sanchez.

I guess I'm your Little John to your Robin Hood.

I guess so.

Today, we wanted to come on and talk a little bit more specifics about the COVID-19 crisis that's kind of affecting us all and talk a little bit about how it's affecting us in the courts and what's going on with civil cases, family cases, criminal cases. A little bit later, we're going to bring on a guest to talk a little bit about how it's affecting the criminal side of the ledger, since both Sam and I steer clear of the criminal cases. We do have an attorney friend that does deal with criminal cases that can tell us a little bit about what's going on over on the criminal side. But let's talk first about kind of what's going on with the family cases. What do you see in your neck of the woods?

Well, obviously, the stay home, stay safe orders have really taken control of the family law practice, in that most courts - while they're still accessible for what we would consider exigent circumstances, meaning that if there was a protective order needed, if it was an emergency removal due to abuse or neglect, or if there was some really urgent property matters - have all kind of been pushed to the side. You can still get some emergency orders, but they're going to have to really be substantial and material to the detriment of that particular asset, meaning that it's instantly going to diminish or go away or it's not recoverable for you to get access to the courts. But they are still available. You know, they're all running on fairly skeleton crews. No judges are doing typically in person hearings anymore, unless just the rarest of circumstances. Most of them are using the social platforms that we see out there. There's Zoom, there's Skype. There's even some Face Time as needed. But that does require agreement on all parties for that to be used and put in place.

Yes. That's a we're seeing we're seeing a few Zoom hearings and different things like that. Everything's kind of getting pushed to the back of the line.

Like you said, the Supreme Court of Texas for the first time, I think in its history (I may be wrong about that, but at least at least from what I can remember), this is the first time that the Supreme Court has put out so many different orders, administrative orders concerning the standard possession order that's under Texas law. And you know how to deal with that. Like, for example, the last order, I believe that was the seventh emergency order regarding the COVID-19 state disaster. And that was issued by the Supreme Court on March 24th. And basically it said that just because a shelter-in-place order is put in effect for your particular county or your particular area, that does not mean you do not have to turn the children over for a visitation period. If the two of you agree to do something different than that's fine, but you still have to follow the orders, the court orders with respect to visitation, even if there's shelter-in-place in your particular county.

Yes, absolutely. You know, most, if not all of these orders are providing exceptions for, you know, certain things. That's obviously one of them in addition to that. You know, I've had clients call and say, hey, you know, can lawyers even do anything? Well, you know, the law profession is considered an essential government function. And so that means clerks are still going work. Judges are still on where court staff is still going to work. And so those are all things that are to be considered as well.

And don't think that you can't get relief from the court, that because there's an emergency, you can't get relief and you can still file. All attorneys in Texas should be able to e-file with any particular county. So still file your lawsuit or your motion or whatever you need to file with the with the court. What's a little bit up in the air is when you need a hearing, that's what's a little bit up in the air right now. What you're going to get as the weeks go by, I think the Zoom orders, the Zoom hearings or Skype hearings are going to be a lot more and use.

Sure. And a big part of that is you've got to understand from the perspective of the law, you trial hearings, these are open to the public. They're very rare circumstances that courts have to justify closing those types of proceedings. So you remember that court proceedings are required to be open to the public under the Texas Constitutional Article 1, Section 13, and that criminal proceedings are entitled to a public trial under the Sixth Amendment of the U.S. Constitution and Article 1, Section 10 of the Texas Constitution. You gotta understand that what we're talking about when we say a Zoom meeting, it's not public. You know, Joe Q. Public can't just dial into one of these and say, "Hey, I want to listen in." So, you know, me and Brian have touched on this before. There's constitutional difficulties for the legal system that we're trying to work through, you know, as as an entire industry of how do we make that work? How are we creating this virtual courtroom? And does it have the same provisions of physical courtrooms, meaning is it available to the public? Well, no, it's not, typically. So, you know, is that something the court has to make a determination and says it's only going to be available to the public as necessary? Did there need to be specific findings in the court record? So while they're still available, understand that, you know, for lawyers, you really want to talk to your competent counsel and have them walk you through.

What does this mean if you're using Zoom as an example, as an application? You know, you can live-stream proceedings, be it YouTube or Facebook. Is that something that a court needs to authorize? Is it an objection that you can use if somebody is dragging you into court and you say, hey, look, you don't have a basis to do this? All these things are new wrinkles in the law.

Yes. And that's that's a that's a good point. The other thing would be when it comes to documents, exhibits, things you want to present to the court or present to a particular witness as evidence.

Normally, the courts like the original and they like to look at that and inspect the document before they make a ruling. And with all of this, you know, meetings online and hearings online are good, but how do you deal with it when you're talking about having to electronically show an exhibit or produce an exhibit or offer an exhibit in a potential online hearing? That's that's all kinds of stuff that the courts are having to grapple with right now.

Agreed. You know, we have some clients who have real property holdings. And obviously this has made a tremendous, tremendous impact on them because, you know, there have been executive orders that have suspended all, you know, addiction and bankruptcy proceedings and, foreclosure proceedings. So, if you're sitting out there, you're like, what is available to you? What legal remedy can I do to ensure that my rights as a property owner, as a lease holder, as a renter owner are preserved? And that really is some difficult conversations you to have with your lawyers.

Because to Brian's point, courts are absolutely available. You can still absolutely file. And what you've got to understand, and we've mentioned this before, is that everybody is getting in line right now, not just for checks from the government. You know, everybody's getting in line for access to the courts. If and when it becomes available, it opens again, which it will in the future. So you really want to talk to them and plan it out and understand that there is some value to getting something on file and getting that relief at least in process.

And then the other thing is that the courts don't want you down there, even on an emergency hearing, if you have any kind of flu-like symptoms - fever, cough, or any of that stuff. They are absolutely, absolutely adamant about not wanting this thing to spread because they're looking at the CDC reports and at everything that's coming through the news - you know, from legitimate sources, the CDC and the government, things like that. And they're really trying to avoid the spread of this thing. And so that's why they've held statute of limitations on many, many different types of lawsuits until after the governor's disaster declaration has been lifted. And who knows when that's going to be? I mean, obviously, we're still, at least in my county, we're still increasing in the number of cases that are being reported every day. So we're not even sure if we're at the apex of this thing yet or or what's going to happen.

So, let's talk a little bit about the Civil side. Let's say, I mean, you brought up a good point a minute ago. When you're talking about landlord-tenant situations, you know, you can look at it from the side of the landlord. You can also look at it from the side of the tenant.

I mean, the both people have very reasonable concerns. What with the number of people that have been furloughed or even outright laid off from their jobs because of this thing. So let's talk first from the tenant side. I mean, if you're a tenant, let's say I'm a tenant, I'm you know, I can't afford to pay my rent because I've lost my job, you know - within days, 24 hours or 48 hours notice. And let's say I'm in the food service profession, and I have no income coming in. And I have no way to pay the rent. You know, what do I do?

Yeah, I really think that you need to be aware. Obviously, you're going to need to do a little homework, make sure that you understand what orders are affecting you in the place that you live. No, these are not just statewide orders. They're federal orders. But there's also local ordinances that are being passed, emergency ordinances that are being passed by county judges by by city councils about this process.

So make sure if you have questions, obviously contact competent counsel, but do a little due diligence to understand that you have rights. You know people are infamous for drafting their own demand letters. They say, "I haven't talked to a lawyer, but you better get out because I will" or, "I'm going to come down myself and kick you out." Those are scary times, especially in situations where you look at it. You say, "I've lost my job, I can't lose my house. Where do me, my family, go?" And you have rights. You know, it may mean you have to retain an attorney. And if you're looking at it and saying, well, what if I don't have the resources to be able to obtain an attorney? You know, these are gonna be very complex situations. You just want to make sure you understand what that position is. So it may be worth paying one-hundred and seventy-five or two-hundred dollars to get a consult from an attorney that can at least give you some good insight in how best to handle a situation if it's presented.

It's the one thing that people need to understand as well with respect to evictions. Typically when you're gonna be evicted by court order, you have to go down to the justice court and you have to get an order. You know, there's a whole process that has to be followed. You have to be served and then then you have to do the eviction proceeding. Then an order is issued, and that directs you to get out or directs the sheriff to put your stuff on the curb or whatever the case may be. The Texas Supreme Court has basically said that can't can't happen right now. No, the courts cannot order it, can't issue those orders at this particular moment in time. So right now, I think, you know, if you're worried about an eviction, I think you're gonna be okay, at least for the time being, because they're not issuing orders to take property at this point.

No, absolutely not. A big part of it, like I've had clients ask how are papers getting served, right? What we would call service and notice, how are they being issued because of this shelter-in-place or, you know, the social distancing that everybody is trying to adhere to? I would say that everything is really going electronically. So under the new rules of civil procedure that is acceptable. Email, a lot of times. And so we just wanna make sure if you're getting any kind of legal documentation that gets emailed to you, legal notice that getting emailed to you don't just ignore it, okay. Because we're telling you that the court's still open and they're still available. There are a lot of things that can't happen right now. Right. Like an eviction. But that doesn't mean there aren't other things that have legal implications that can't affect you dramatically. That can happen. So, you know, don't be an ostrich. Don't put your head in the sand and think it'll be okay.

And if you get something via email contact, there are some exceptions to that, to the eviction. I mean, they're very limited. It would be under the Supreme Court's...looks like their fourth order. They're talking about not being able to do an eviction proceeding or get an order for a writ of possession until after April 26th. I'm guessing based on the president's press conference the other day where they're thinking this thing is going to go through at least the end of April, I'm thinking that's probably going to get extended. But at this particular moment in time, it's not until after April 26th and all the deadlines and things like that are told.

So you've got until at least that time. The exceptions are if you're running a criminal enterprise out of your rental house or apartment, you're involved in criminal activity or you're an imminent threat - let's say you're arming up for the apocalypse and, you know, shooting guns off and things like that. Those kinds of things will get you evicted under an emergency type of situation. But beyond that, if you're just a normal person, just trying to get by the day-to-day, I don't think you have to worry about getting evicted at least until the end of April.

But most of the time, landlords are are being pretty understanding. They're affected by this, too, because obviously the landlord side of the table, they've got potentially mortgages to pay or rent to pay to another lien holder. So that's also being affected by this. So let's talk a little bit about the landlord side.

Yeah. Obviously, you know, if you got a mortgage outstanding, you're not receiving rent payments that we're normally covering that mortgage. The first thing you want to do is contact your mortgage holder. There's a lot of flexibility that's not necessarily dictated but recommended at this point in the mortgage industry. So, you know, a lot of them are trying to be understanding that they might be pushing mortgage payments without penalties and interest to, you know, a month down the road or adding to the term of the loan to give you an opportunity to not have to pay. We don't have an income, but none of this is going to happen automatically.

So the ostrich defense doesn't work in this particular situation.

No, you've absolutely got to reach out to the people who are in the in the position of lean holder or mortgage holder and let them know what's going on and really work. And you're right, and if you're a landlord, I mean, most landlords are reasonable people, but you're not going to be able to evict somebody during this crisis unless there's criminal activity or some sort of imminent threat or emergency going on on the property. So for most normal instances, that's not going on. But on the landlord side, yeah. I mean you're in a tricky position too, because everything kind of filters up. But yeah, getting in contact with those lean holders is probably the safest, safest course of action because I guarantee you you're not their first phone call.

No. No, absolutely not. No. Oh, yeah. But if you're looking at your real property, your apartment complexes, bootlegging or whatever's going on in your house that you rent, you're not getting funds unless you have concerns about what may be transpiring.

So to Brian's point, if you feel that it's a criminal enterprise, then you obviously have to bring in law enforcement officials.

Now, I will tell you that there have been some concerning types of statements made by police forces that are feeling the strain of either  sick police officers who are not showing up to work or, you know, heavy volumes of calls because obviously they're unprecedented issues, I would say. Dallas County, I guess they put out a notice and said, hey, you know, we're not going to respond to any type of theft call. So, you know, we've done in the past podcasts about if you're a firearm owner, you know how to be careful about that. These are the kinds of things that you want to know because, self-help is definitely not going to be something I would recommend at this point, because, you know, things are very tense. Things are super stressful. And you may not normally have the availability to have a police officer out there to help you kind of effectuate something like that.

You may not get it, and the best advice, you know, for you is to pay attention to what's going on. Check your news sources, check reliable news sources, find out what's going on in a local area. And, you know, use a reasonable mind and protect your family and stay safe. I mean, nobody's gonna fault you in this in this particular situation for protecting your family or staying safe.

The best thing you can probably do at this point in time is probably stay home. I know we got school running out of my house, that we've got all kinds of things. I've got school, we got PE, we got everything running out of my house right now, school work, everything you could think of. But you know, nobody's gonna fault you for doing what you think is best for your family during this time.

This is like we said, it's completely unprecedented. Heck, and you know, most of these things you have. Now, let's talk a little bit about civil stuff. You have a car loan or you have some other kind of loan or you have a mortgage that's due and you've lost your job or whatever the case may be. Call your lenders and and talk to them, because most of them are are getting help from the government and most of them are taking unprecedented action to help out people during this crisis. I mean, you know, if you're a person who normally pay their bills two days before the due date or ten days before the due date or whatever, because you're, you know, a responsible person and everything like that, stuff like this happens that people can't control. And they're, they're and they're there to help. But you got to let them know what's going on, because I know almost every car dealer and every car loan is offering unprecedented help during this time, whether they're adding it onto the term, your loan or whatever the case may be, they are they are trying to help during this crisis. So there is help available and there. And like I said, if we were having real trouble and a real concern, I think getting the advice of competent counsel is absolutely critical.

Without a doubt, and remember along those same lines look stressful situations, you know, they can bring out the best or the worst in people. And, you know, you're going to be judged and the decisions that you make right now. It's always hindsight. You know, when you're Monday morning quarterbacking, it's really easy to look back and apply very stringent rules and regulations from a judge's perspective. And so you just want to take the high road to know if you can take the high road and be flexible and give some deference to the people that are around. Definitely kind. And I would recommend that you do it. And if you need that kindness, you know, it's okay to ask for it. And if somebody is not willing to give it to you, you know, they're treating you with a lack of respect or they're just not really taking into account your very difficult situation. Absolutely you need a lawyer, guys. I mean, there's a reason that all these people went to school for the most part. It's to help people. And in a situation like this, you know, get the help if you can't get out of it on your own.

So we did promise you some discussion about the criminal side of this. So we're going to take a quick break. And when we come back, we'll be joined by Jonathan Bailey, who's going to talk to us a little bit about the criminal side of this thing. So give us a little bit of time and we'll be right back...

Welcome back to the top Texas Lawyers podcast.

Sam and I are happy that Jonathan Bailey has decided to join us today. He's a criminal attorney who practices in Dallas and Denton counties. But he can do criminal cases basically all over the state. So he's with the law office of J.B. Bailey and he's here to talk to us about this COVID-19 crisis and what's going on in the criminal world. So we have a couple of questions for you. Our biggest and first question is, you know, if you're a guy who's been arrested, you know, those situations.

Well, it's it's been a real challenge. I know that a bunch of us have got a special motion that we can file for an expedited arraignment and get people out on bail due to the COVID-19. That's what a lot of us have been using to get people out quickly. Unfortunately, if it's an assault family violence case, there's a mandatory 24-hour hold. But we still want to get you out as quickly as possible.

What do they do? Where do they go? What do they see being done at the courthouses with with criminal cases and things like that?

Well, at the courthouse, they're letting us pass the case or getting new court date remotely for the most part. It's only essential items that we're down at courthouse for right now.

So you are a you had to go down to the court last week to do some kind of a plea or something. What was what was that situation like?

The courthouse looked like a ghost town. I was actually shocked that the judge had us down there because most of the judges didn't. But there are still some outliers who decide they want to drag everyone down to the courthouse. And in spite of all the warnings and the shelter order place for people that are currently in custody, they're trying to release people fairly rapidly.

So I believe we've got one down here in Harris County, our first reported cases of COVID-19 at the jail. I'm not sure how it is up in your neck of the woods. Do you know any information on that?

I have been keeping track of it statewide for the most part, mainly in the Dallas-Fort Worth Metroplex. And also I went to Houston because the major metropolitan cities kind of tell us what's going on. What's going on is they're trying to release everyone from the jails. Not the prisons - and there's a difference. The jail is just at the county level with, you know, usually that it's either temporary holding or very, very minor offenses. Anyone that's nonviolent. Meaning, you know, marijuana case or DWI. So I guess something, you know, kind of petty where they're not really a threat to society. They're letting everyone out as rapidly as possible to try and slow the spread of this virus that's going on.

Are you seeing that the bail amounts are being substantially reduced as you're getting these hearings?

They are. We're getting a lot of reduction in bails. Some of the candidates like Dallas have moved almost exclusively to a personal recognizance bond situation where they even take the bondsman out after you get arraigned at the jail. They're going to look they are taking everyone, giving them what's called a personal recognizance bond and just released. That's happening a lot in Tarrant County.

Also, so are they are they doing arrests for cases with people violating these curfews or anything like that yet?

Not yet. There is a statute in place that allows for up to a $1,000 fine and up to six months in jail if you're caught violating the statute. It's a state emergency order violation.

I can anticipate that if that if this stay-at-home order is around much longer, we're going to have quite a few of those cases coming about. You know, if law enforcement tells you to go home, don't argue with the law.

That's absolutely good advice.

What do you see on the trial settings? I mean, like obviously on the family and civil side, we're seeing things getting kicked down the road, you know, those timelines. Are you seeing those extended jury trials being pushed out? Are you guys considering or contemplating other things?

Well, they are. They're pushing the jury trials back. They're actually having leads that happen. If you're set for a plea. Some of them, they're doing the Skype or Microsoft team or Zoom - any of those those interactive social media mediums, and they're scheduling people in. They've got to move people constitutionally, you know, as a result of the constitutional violations out of the jail.

So the people that are getting to see the judge, whether it be live or by video or telephone call, are mainly people that are currently incarcerated, people out on bond. Most of the courts are are just pushing the case back, kind of like you said, they weren't the civil courts.

Okay, so what does a person do if they find themselves in the unenviable position of being arrested during this thing, this problem?

Well, I would I would rapidly call a lawyer because, depending upon the county, there are some things we can do to get you out more rapidly.

I know that in Collin County if it's small misdemeanors there, they set bail amounts and if the lawyer goes down and files writ of habeas corpus, they can do what's called a writ bond and get out without having to be arraigned by a judge, which is really nice because then it's just the whole process in and process out time. And you don't even see the main the main part of the jail.

So you're seeing that where you would get get hung up would be in situations where there's a violent offense or you're being charged with some kind of a family violence situation or something like that, correct?

Absolutely. That's all the sheriff's say, and I've talked to a couple of them. And people, the sheriff's office, they're there in most of the counties. They're under orders to get rid of everyone that's not a threat to society and try to reduce the numbers in the county jails. But, yes, I've had people ask me the question, you know, are they, you know, should we be worried they're letting everyone out of jail? And I would say no.

And what about minor situations? Are you seeing people getting arrested for petty offenses or getting arrested for things like theft and different things like that? Or they are the police even responding to those calls at this point or, you know, what's going on with those types of things?

Most of the less aggressive petty theft and petty marijuana offenses, things of that nature where they're trying to conserve the resources towards, you know, more violent offenses.


So if somebody has a criminal issue and they need to get a hold of you. How do they get a hold of you?

Oh, you can. You can either go to my website, which is the law office of J.B. Bailey, or they you can just call me directly at 469-248-6430. Okay.

And you've got a website. So Jonathan has been practicing criminal law for almost 20 years, maybe over 20 years at this point. My days are running together, but he's got a tremendous amount of experience in both felony and misdemeanor. He's your go-to guy if you have a criminal issue you need dealt with. Yeah. Don't wait. Give him a call. Well, Mr. Bailey, I appreciate your time coming on with us today.

Great insights. Thank you guys very much. I appreciate it.

All right. Thank you, sir. Thank you. Well, all right.

There you heard it. You've now we've covered the civil side, the criminal side and the family side of this.

You know, we think we've got you pretty much up to date with respect to this COVID-19 crisis. But like you said, and I have reiterated the on this podcast before, the important thing right now is that you keep yourself safe and your family's safe. If the county or state authority issues in order, follow it. And get yourself medical treatment if you need it. Because this is nothing to joke around about.

I agree. If you can, stay home, stay safe. That's what we want. If you need help, you know, we've heard it from multiple people and different sources - don't hesitate to reach out and try to, you know, rely on the goodness of people. But if you need help beyond that and you need a good lawyer, then don't hesitate to reach out to competent counsel. They're there for that reason. Of course, they're still available and accessible if necessary and get things done.

And we thank you again for your time today. We will be following up with you again shortly. It looks like looks like this stuff is changing by the hour because I just got...just got an update that school's closed until the first part of May. So, as you know, a good example how this stuff changes by the hour. And so it's important.

Ditto and like I said, if you need help, there are plenty of resources available to help you if you need. If you need a good attorney, don't wait. Go ahead and reach out. Most attorneys are doing conferences or Skype or phone consultations. You can get that help. The help is available. And by all means, just please stay safe.

That's all I got. I'll talk to you soon. Take care, Sam.

Thank you so much. You, too. Bye.

Thank you for listening, and we hope you enjoyed the Top Texas Lawyers Podcast. If you'd like to schedule a consultation with either Bryan or Sam, please call 1-888-981-7509. Or visit us on the web at Once again, that's Thank you very much.

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