The State of the Judiciary in Texas
Remarks of Chief Justice Nathan L. Hecht As Prepared for Delivery to
the People of Texas
March 16, 2021 • Austin, Texas
My fellow Texans:
As chief justice of the Supreme Court of Texas, I am required by law
at the commencement of each regular legislative session to deliver a
message on the state of the Texas judiciary, evaluating the courts’
accessibility, future directions, and needs. This is my fourth occasion
to do so. Ordinarily, the State of the Judiciary address is delivered
before a joint session of the Legislature in the House chamber. This
year, the continued COVID-19 pandemic prevents that. I am pleased to
have this opportunity to speak to you through video from my chambers in
Austin.
Courts Must Remain Open
Texas’ first reported case of COVID-19 was on March 4 of last year in
Fort Bend County. Just nine days later, a state of emergency was
declared by President Trump for the nation and by Gov. Abbott for the
state. No one knew then the historic challenges that lay ahead, how they
would test us, or what we would do to meet them. In the judiciary, we
knew this: justice cannot sit out a crisis. Family friction doesn’t
disappear in a crisis; sadly, it mounts. Crime doesn’t stop in a crisis.
Housing and job needs, care for children and the elderly, veterans’
appeals for benefits, basic civil legal needs of the poor—all the things
courts handle every day in good times are even more critical in a
crisis. Closing the courts was not an option. We could limit operations
to emergencies for only a few days. Courts, like everyone else, had to
adapt.
The first step was to give courts flexibility. The Texas Supreme Court and Court of Criminal Appeals immediately issued their first emergency order, invoking authority enacted by the Legislature in 2009 following Hurricane Ike and expanded last session based on what we learned from Hurricane Harvey. That order authorized courts to change deadlines and procedures, allow those involved in a proceeding to participate remotely, and conduct proceedings in different locations. Courts could adjust routine processes to continue to function in the new reality.
At the same time, courts needed guidance. The emergency order also
required courts to use their flexibility to avoid exposing court staff,
parties, attorneys, jurors, and the public to COVID-19. Texas has 3,220
judges in 1,192 court locations, visited every day by some 325,000
people—1% of the population—most of whom don’t come by choice. Courts
are the busiest convener in the government. Courts should not force
people seeking justice to risk their health to get it. In a pandemic of
historic ferocity, courts sought the expertise of health officials,
state and local, to develop protocols for conducting court proceedings
safely.
Remote Proceedings
And courts needed new tools. Just before the disaster declaration, the
Office of Court Administration had the foresight to begin acquiring Zoom
licenses for all Texas judges. I had never used Zoom; I doubt many
judges had. I thought “zoom” meant to hurry. But remote
videoconferencing, which started statewide one year ago today, allowed
courts to continue to process cases with some efficiency while
minimizing health risks to participants.
It’s one thing to have a Zoom license; it’s another to know how to use it, as the “I am not a cat” hearing in District Judge Roy Ferguson’s court showed. Training programs and webinars developed by judges and court staff offered solutions for setting dockets and conducting hearings. Last May, Collin County District Judge Emily Miskel oversaw the first completely virtual jury trial in the country—actually, in the world, as far as we know—for which Chief Justice John Roberts presented her the Rehnquist Award for judicial excellence. Since then, Texas courts have conducted 35 virtual jury trials. Texas has been a national leader in utilizing remote proceedings, with more than 3.5 million participants so far. Last month, Johnson County Court at Law Judge Robert Mayfield conducted the one-millionth Zoom hearing in a Texas court.
Remote proceedings achieve important efficiencies. They save time and money, sparing lawyers, parties, and witnesses from having to go to the courthouse for every hearing. And here’s a benefit we didn’t expect. Lots of people involved in court proceedings often find it impossible to attend: They can’t afford to miss work, arrange for childcare, and get transportation to go downtown and sit at the courthouse waiting for hours to be heard. So they just don’t go; they default. But with remote proceedings, “going to court” is as easy as clicking on a link or dialing a number on a smartphone. We’ve watched participation rates in high-volume dockets like child custody and traffic cases flip from 80% no-shows to 80% appearances. Judges report that few parties are kept from participating by a lack of access to technology—the so-called digital divide. And Texas courts are working to close that divide by providing court participants better access to technology, like iPads to jurors. And there’s another plus. You can watch remote proceedings on YouTube, giving the public a ringside seat in every courtroom, increasing transparency and accountability.
We must bring lessons learned in this crisis to the “new normal.” Not
all court proceedings can be conducted remotely, but many can be, and
must continue to be. The Supreme Court has convened a working group to
identify best practices for remote proceedings going forward. Sen.
Zaffirini’s SB 690 and Chairman Leach’s HB 3611 will ensure that scores
of statutes on the books, written without technology in mind, will not
impede improved access and efficiency in the justice system.
Jury Trials
We’ve shown that jury trials can be virtual in many cases—like traffic
offenses, other simple misdemeanors, and civil cases with few witnesses
and issues. Those cases accounted for some 40% of all jury trials in
2019. For parties waiting to be reached for an in-person jury trial, a
virtual jury trial offers them their day in court. Virtual trials will
continue to play a role in the “new normal” as a more cost-effective and
convenient way for parties to present their case to a jury of their
peers.
Jury trials in felonies and other serious criminal cases, as well as more complex civil cases, will still be in person. In 2019, Texas courts tried roughly 9,000 cases to verdict; in the past year of the pandemic, we tried 239. We’ve gone from some 186 jury trials per week to four. This is not for want of effort by courts. Courtrooms aren’t built for social distancing, which requires lots of space to qualify and question scores of potential jurors in each case, and modifications to spread everyone out. Judges have worked very hard to convene juries safely. Participants in state court proceedings have only occasionally tested positive, and there have been no reports of spreading. But the danger is still there. In one federal jury trial in Texas last fall, at least 15 participants became infected, including jurors, attorneys, and court staff. We are working hard to resume in-person jury trials, but we must also work safely.
You can choose for yourself whether to risk greater exposure to
COVID-19, but courts cannot thrust that increased risk on jurors and
others who have no choice about appearing in court and would stay away
if they could. As vaccinations increase, so will the number of jury
trials, and soon.
Backlogs
The future beckons. Except for jury trials, Texas courts have mostly
kept current. Fewer civil cases, small claims, and traffic cases are
pending today than before the pandemic. Backlogs have increased somewhat
in criminal cases and family cases, but all courts are working hard to
reduce them. More backlogs will come, with jury trials that courts must
work through, and an expected surge in new case filings held off during
the pandemic. With only current resources, we estimate it may take three
years to completely catch up. This is unacceptable, and I have asked the
Legislature for increased funding for retired and former judges to help
us move more quickly.
Access to Justice
Some 5.2 million of our poorest Texans qualify for basic civil legal
services—help with things like housing, jobs, children’s welfare,
guardianships, domestic violence, and sexual assault. The pandemic has
only sharpened these needs. Last fall, Gov. Abbott designated $4 million
in federal relief funds for legal aid. For the next biennium, the
Supreme Court’s budget funds basic civil legal services at the same
level as in past years and includes $10 million from dedicated funds for
sexual assault victims, as well as $6 million for legal aid for
veterans. The Supreme Court has asked for an additional $4 million per
year, $1 million per year of which will be designated for veterans’
legal aid. We estimate the extra appropriation will help more than 7,000
additional people obtain essential legal services, including some 1,800
veterans. We cannot allow access to justice for the very poor to falter
just when they need it most. And we can expect that as criminal jury
trials resume, the need for funding indigent criminal defense required
by the Constitution will also increase. I urge the Legislature to fully
fund all these needs.
Bail Reform
We have a bail crisis in Texas. Gov. Abbott has declared reform an
emergency. In many Texas courts, a criminal defendant too poor to afford
cash bail remains in jail, even if charged with a minor, non-violent
offense and no threat to the public. The vast majority of people in jail
are awaiting trial and have not been found guilty. In the past 27 years,
the percentage of the Texas county jail population awaiting trial has
more than doubled, from around 32% to over 83%. Who pays to keep these
defendants in jail? Taxpayers.
At the same time, a criminal defendant who can afford cash bail can buy his release, even if he is charged with a serious, violent offense and has several priors, without regard to whether he is a danger to the public. And when he re-offends while on release, who pays? Victims, society, all of us.
Haywire? Yes. But worse, it’s wrong to lock up people only because they’re poor. It offends basic notions of liberty and humanity. And it’s dangerous to release defendants only because they can afford to make bail. There is a straightforward fix. First, give courts validated, pretrial, risk-assessment information for all defendants so judges can make better-informed decisions about bail. Second, ask voters to amend the Texas Constitution to allow judges to hold high-risk, potentially violent defendants without bail. Third, provide pretrial supervision for those released. And fourth, collect data to verify that the system is working as it should. I continue to urge the Legislature to reform the criminal pretrial release system following these four principles.
Eviction Diversion
The inability to pay rent hurts tenants and landlords alike. Twenty
percent of Texas’ renting households report being behind on rent; 1.5
million of them doubt they can pay next month’s rent. Gov. Abbott’s
Eviction Diversion Program, operated through the Texas Department of
Housing and Community Affairs, is using $1.2 billion in federal stimulus
money to provide Texans rent relief. About 25% has been spent,
benefiting landlords, tenants, and whole communities, as well as
reducing the burdens on the court system. You can learn about the
program and apply for benefits at this website: texasrentrelief.com. The Supreme
Court will continue to provide procedures to encourage landlords and
tenants to take advantage of the program and to facilitate distribution
of the funds.
Garnishment
The Texas Constitution of 1876 exempted basic wages paid by cash or
check from seizure by creditors to safeguard their use for basic living
expenses. Today, because payments are often by direct deposit, they do
not have the protection our state’s founders believed was important.
Threatened seizures of federal stimulus funds paid to cover basic living
expenses during the pandemic only called attention to the need to
modernize wage protections. The Judicial Council has proposed an update
to the basic constitutional exemption. I urge the Legislature to enact
HB 3613 by Chairman Leach and SB 644 by Sen. Zaffirini to provide this
needed modernization.
Mental Health
For years, the Judicial Council and the Legislature have
worked together for meaningful reforms in our mental health system. With
legislative support, the Judicial Commission on Mental Health has
collaborated with stakeholders statewide, including Sen. Joan Huffman
and Rep. Joe Moody, to make further recommendations for ensuring that
those with mental health conditions in our justice and municipal courts
are mentally competent, that our successful jail competency restoration
programs continue to work well, and that those with mental health
conditions are placed in the least restrictive facilities to safely
receive treatment. Those recommendations are contained in HB 4212 by
Rep. Moody and SB 1739 by Sen. Zaffirini. The commission has also made
recommendations for improving the use of emergency detention in mental
health crises. I urge the Legislature to pass these important bills.
Juvenile Justice
Children who commit Class C misdemeanors are in the criminal system,
not the juvenile system. If a 12 year old steals a real car, he is
adjudicated as a juvenile in the civil justice system and faces no
criminal penalty. But if he steals a $10 toy car from a general store,
he is prosecuted in the criminal system for a Class C misdemeanor. This
makes no sense. The juvenile justice system provides judges,
prosecutors, and law enforcement many tools to set a child on the right
path that the adult criminal justice system does not. A child who breaks
the law must certainly face the consequences, but the reason for the
juvenile justice system is to keep children from being treated as
criminals. The Judicial Council has worked with representatives of the
justice and municipal courts, juvenile prosecutors, and defense
attorneys to propose statutory changes that will help keep children from
spiraling deeper into the criminal justice system while holding them
accountable for their actions. Sen. Perry has filed SB 512, and Rep.
White HB 3660, to enact these recommendations. I urge the Legislature to
consider them.
Racial Prejudice
Amidst the pandemic, we have been reminded, again, that the justice
system faces a far worse disease than COVID-19, a disease that is not
novel but all too chronic and familiar: the disease of racial prejudice.
Outcries last summer charged that the justice system is not fair, and
just as importantly, not perceived to be fair. The charges cannot be
ignored. They demand self-examination and response from all who serve
justice. Texas courts are taking a hard, clear look at themselves, and
we will keep doing so. We will gather data to determine how the justice
system is working in fact. We will encourage better training of judges.
We will work to improve the public trust and confidence in the courts
that is absolutely essential to the administration of justice.
Challenges Met
I am in my 40th year of judicial service, president of the national
Conference of Chief Justices, and chair of the National Center for State
Courts. Every day I work with judges across the country to ensure the
justice system is working. I will tell you this: The people of Texas can
take deep pride in their judges—municipal judges, justices of the peace,
county judges, district judges, the courts of appeals, and my colleagues
on the high courts. They have stood to the historic challenges of the
COVID-19 pandemic. The courts are open and dispensing justice.
Judges and court staff have served at personal sacrifice. Many have
contracted COVID-19 themselves. At least four of my colleagues have
died: Lubbock County District Judge Ruben Reyes, Wise County Court at
Law Judge Melton Cude, Falls County Justice of the Peace Jack Smith, and
Jasper Justice of the Peace Jimmy Miller. All were just and fair
jurists, highly regarded in their communities. In addition, several
court clerks, court staff, and constables have also succumbed to
COVID-19. For them, and for others for whom COVID-19 has been more than
a risk, has been a tragic reality, I ask that we observe a moment of
silence.
Conclusion
We will defeat the pandemic. We will return to normal. For the
judiciary, it will be a new normal, one with even greater promises of
justice for all. My fellow Texans: The state of the judiciary is strong,
resilient, moving ahead, and committed to the innovations a fair,
efficient system of justice for all demands.
God bless you, and may God bless Texas.TBJ
