Sep 24

September 24, 2020 TML Coronavirus Update #127

Posted on September 24, 2020 at 1:48 PM by TML Staff

Urgent Updates

 

Will there be an update tomorrow?

 

In recent weeks, we’ve tried to avoid sending Coronavirus Update emails on Fridays, if at all possible. Unless something major pops up, we’ll stick with our new custom tomorrow.

 

What are the details of the most recent election lawsuit filed with the Texas Supreme Court?

 

If you didn’t already know it was election season, the growing number of election-related lawsuits should be a dead giveaway. Add a global pandemic to highly contentious state house elections (and a somewhat high-profile presidential election), and you’ve got a recipe for lots of litigation.

 

Yesterday, several Republican state officials—including the chairman of the state party, the sitting agriculture commissioner, and multiple state senators and representatives—filed a lawsuit with the Texas Supreme Court claiming that Governor Abbott lacks the authority to expand the early voting period and the window for a voter to deliver a ballot voted by mail. (Note: At the time this update is being published, it appears as though the Texas Supreme Court rejected the plaintiffs’ petition because it was improperly filed. The petition’s deficiencies will presumably be remedied in the near future.) Remember that back in July, Governor Abbott issued a proclamation pursuant to his disaster authority that both extended the early voting period by a week and expanded the period in which marked mail-in ballots may be delivered in person to the early voting clerk’s office to allow for delivery before Election Day. The stated purpose of those extensions was to give Texas voters “greater flexibility to cast their ballots, while at the same time protecting themselves and others from COVID-19.”

 

The plaintiffs in the lawsuit argue that Governor Abbott must consult the Texas Legislature in order to make changes to the early voting process: “If ever a special session was justified, now is the time. Abbott’s Executive Orders are unprecedented and have had life and death implications, destroyed small businesses and family’s livelihoods, have had a crippling effect on every single community, and now have the ability to impact local, state and national elections.”

 

As always, the League will monitor the litigation and provide updates as they become available.

 

Further Updates

 

How should cities treat COVID-19 health screening records?

 

Luckily, the Texas State Library and Archives Commission (TSLAC) is here to help with the answer. Earlier this week, TSLAC posted on their blog, The Texas Record, some helpful guidance on how cities handle COVID-19 screening records.

 

Where can I access a summary of the key topics you’ve covered in these Updates?

 

TML staff launched these Coronavirus Updates in mid-March when our cities started feeling the effects of COVID-19. Since then, we’ve produced more than 350 pages of archived information.

 

We know it’s hard to digest it all, so we’re offering a comprehensive update at the TML Virtual Annual Conference and Exhibition on October 14 at 1:30 p.m. Scott Houston, TML Deputy Executive Director and General Counsel, will lead the discussion, and will be joined by Assistant General Counsels Christy Drake-Adams, Amber McKeon-Mueller, and Evelyn Njuguna. Register here to listen in on this update, and view more than 30 other conference sessions related to disaster recovery and resilience.

 

Where can I find archived issues of the TML Coronavirus Updates?

 

TML Coronavirus Updates are archived by date here and by subject here.


Sep 23

September 23, 2020 TML Coronavirus Update #126

Posted on September 23, 2020 at 2:53 PM by TML Staff

Urgent Updates

 

What guidance has the Texas Supreme Court provided to municipal courts regarding in-person and remote proceedings? 

 

On September 18, the Supreme Court of Texas issued their 26th Emergency Order Regarding the COVID-19 State of Disaster, which provides limitations and criteria related to jury trials across the state, including for municipal courts. This new executive order replaces the 22nd Emergency Order, and is effective beginning October 1, 2020, and running through December 31, 2020.

 

Specific to municipal courts, the Emergency Order No. 26 provides the following:

 

-“A justice or municipal court must not hold an in-person jury proceeding, including jury selection or a jury trial, prior to December 1.”

 

-“In criminal cases where confinement in jail or prison is a potential punishment, remote jury proceedings must not be conducted without appropriate waivers and consent obtained on the record from the defendant and prosecutor. In all other cases, including cases in justice and municipal courts, remote jury proceedings must not be conducted unless the court has complied with paragraph 6(d).” (Note: Paragraph 6(d) provides that “the court has considered on the record any objection or motion related to proceeding with the jury proceeding at least seven days before the jury proceeding or as soon as practicable if the objection or motion is made or filed within seven days of the jury proceeding.” It is unclear if a non-record municipal court must consider any objections or motions “on the record.”)

 

-That the regional presiding judge must “ensure that all trial court judges in each region, including justices of the peace and municipal court judges, do not conduct in-person proceedings, including in-person jury proceedings, inconsistent with the Court’s Orders and the latest Guidance issued by the Office of Court Administration” and “assist each region’s local governments and courts to ensure that courts have the ability to conduct court business.”

 

In addition to the above, municipal court staff must also consider the following requirements for any non-jury proceeding: “Courts must not conduct in-person proceedings contrary to the Guidance for All Court Proceedings During COVID-19 Pandemic (“Guidance”) issued by the Office of Court Administration, which may be updated from time to time, regarding social distancing, maximum group size, and other restrictions and precautions. Prior to holding any in-person proceedings, a court must submit an operating plan that is consistent with the requirements set forth in the Guidance. Courts must continue to use all reasonable efforts to conduct proceedings remotely.”

 

Interested city officials can access more COVID-19 municipal court information from the Texas Municipal Courts Education Center (TMCEC). Municipal court personnel can also contact TMCEC’s legal department with questions about the application of the new order.

 

Further Updates

 

Do the governor’s motor vehicle registration statute suspensions affect junked vehicle ordinance enforcement?

 

That’s a good question, and even the experts aren’t sure. The ordinance enforcement issue relates to the use of an expired motor vehicle registration as evidence that a vehicle is “junked.” But the Texas Department of Licensing and Regulation says towing from private property is suspended, which may render enforcement moot. 

 

Back in March, the governor suspended various statutes and rules requiring registration for motor vehicles that operate on public highways. (The idea is – presumably – that registration isn’t necessarily a safety issue, and the requirement to do so would lead to long lines and crowds at DMV offices.) 

 

The statutory definition of a “junked vehicle” is a motor vehicle that is self-propelled, displays an expired license plate or does not display a license plate, and is: (1) wrecked, dismantled or partially dismantled, or discarded; or (2) inoperable and has remained inoperable for more than 72 consecutive hours, if the vehicle is on public property, or 30 consecutive days, if the vehicle is on private property. Transportation Code § 683.0711 allows a city to adopt a more inclusive definition of a “junked vehicle” than the statutory definition. Prosecutors typically use expired registration as evidence to prove that a vehicle meets the definition. Without it, the elements become much more difficult to prove.

 

None of that may matter, however, because TDLR has advised that the governor’s suspensions prevent a towing company from towing vehicles from private property for expired registration or renewals:

 

“Due to the extension granted for obtaining the initial registration or renewal of registration for a vehicle, tow companies may not tow vehicles from private property for expired registration or renewals until further notice.”

 

The bottom line is that the suspensions could be read to have created a sort of “grace period” for vehicle registration, making enforcement of a junked vehicle ordinance questionable. As with all complex legal matters, each city official should consult with their city attorney prior to acting (or not acting) on the above.

 

City attorneys with questions should contact Amber McKeon-Mueller, TML assistant general counsel, at amber@tml.org.


Sep 22

September 22, 2020 TML Coronavirus Update #125

Posted on September 22, 2020 at 3:23 PM by TML Staff

Urgent Updates

 

What is NLC reporting on the U.S. Treasury Department CRF guidance related to public safety expenditures?

 

The National League of Cities (NLC) sent the following update today:

 

“Earlier this month, the Treasury Department Office of Inspector General (OIG) attempted to backtrack on reasonable reporting requirements for state and local governments using Coronavirus Relief Funds under the CARES Act.  

 

The OIG guidance would have overruled a prior presumption that all payroll costs for public health and public safety employees would be treated by federal regulators as payments for services to mitigate the impact of COVID-19, as required by the CARES Act. 

 

The OIG guidance would have imposed burdensome new reporting requirements after cities had already relied on the presumption to support budgeting, payroll, and employment decisions. More consequentially, the change would have made it more likely that the OIG could attempt to claw back expended CRF funds, possibly years later, similar to FEMA funds.

 

NLC quickly brought together a coalition to convince Treasury to reverse course on new reporting requirements, which they did this week in an updated guidance published yesterday that dropped the new burdensome reporting requirements and reinforced the original presumption guidance. (Editor’s note: The guidance is not yet posted on the Treasury Department’s CRF webpage.) 

 

The updates requested by NLC are found in FAQs 63 and 70-72, which are related to the recordkeeping requirements for public health and public safety employees significantly dedicated to mitigating or responding to the COVID-19 public health emergency.”

 

Further Updates

 

What action did the Texas Supreme Court recently take with regard to evictions?

 

Last Thursday (September 17), the Texas Supreme Court issued an administrative order clarifying certain aspects of the federal nationwide eviction moratorium.

 

As reported on September 2, the Centers for Disease Control and Prevention (CDC) issued an order to temporarily halt residential evictions to prevent the further spread of COVID-19. Effective September 4, 2020, through December 31, 2020, the CDC order provides “rent deferral” for qualifying individuals. As reported by The Texas Tribune, the federal moratorium left several unanswered questions.

 

The Texas Supreme Court’s administrative order addresses three primary issues relating to the federal moratorium. The order:

 

-requires that, in an action for eviction to recover possession of residential property under Chapter 24 of the Texas Property Code and Rule 510 of the Texas Rules of Civil Procedure, the petition and citation include certain information to ensure that tenants are notified about the federal eviction moratorium;

-includes certain information to ensure that tenants are notified about the federal eviction moratorium;

-clarifies that the federal moratorium could prevent an eviction where the eviction has been granted, but the order to have the constable remove a person (the writ of possession) has not yet been issued; and

-provides a procedure for landlords to contest a tenant’s declaration that he or she is qualified for rent deferral under the federal moratorium.

 

What is TxDOT doing to help cities with transportation projects during the pandemic?

 

The Texas Department of Transportation is providing favorable Texas State infrastructure Bank terms for certain new and existing projects and loans. The agency provided the following:

 

“The Texas State Infrastructure Bank (SIB) is a low-cost revolving loan program within TxDOT that offers financial assistance in the form of at or below market rate loans to public or private entities authorized to construct, maintain or finance an eligible public highway project.

 

Eligible projects must be eligible for assistance under existing federal highway rules (Title 23, United States Code), environmentally cleared, consistent with the Statewide Transportation Improvement Program (STIP) and consistent with the transportation plan developed by the local metropolitan planning organization (MPO).

 

To assist local governments in navigating this difficult time, the Texas SIB will be waiving interest during the first 3 years of approved SIB loans for current applicants and new applications received from now until the end of the year (December 31, 2020). Some examples where this may be beneficial to your community include:

 

-Outstanding or upcoming funding contribution(s) to a TxDOT project.

-Outstanding or upcoming costs for right-of-way (ROW) acquisitions and/or utility relocation for a TxDOT project.

-Funding eligible, local project letting within the next 12 months.

 

The TxDOT State Infrastructure Bank Webinar will take place as follows:

 

Date: September 29, 2020

Time: 11:00 am

Registration: Register Here

Purpose: To learn more about the SIB program and TxDOT’s SIB-related COVID-19 efforts to assist local governments in this challenging time.”

 

Where can I find archived issues of the TML Coronavirus Updates?

 

TML Coronavirus Updates are archived by date here and by subject here.