This article was updated on April 14, 2020.
Day-to-day life has been dramatically impacted by the coronavirus disease 2019 (COVID-19), and many courts in Louisiana and Texas have been forced to close or limit operations in conjunction with stay-at-home orders. A brief discussion of how COVID-19 has affected Louisiana and Texas courts is discussed here.
Louisiana stay-at-home order
- Governor John Bel Edwards issued a Stay-At-Home Order on March 22, limiting business operations in Louisiana to reduce the spread of the disease. The Order requires closure of certain nonessential businesses, such as entertainment venues, personal care and grooming businesses, and retail shopping businesses. The Order specifically excludes businesses identified as critical to infrastructure, including oil and refining, and manufacturers, distributors, and supply chain companies producing and supplying products and services for industries such as energy, petroleum, and fuel. Businesses that do not fall within either classification (nonessential or critical to infrastructure) are required (1) to reduce operations to essential employees, and (2) to operate with minimal contact with the public.
Status of Louisiana state courts
- As of March 30, 2020, the Louisiana Supreme Court has issued four orders in response to the COVID-19 pandemic. Among other provisions, these orders continued all jury trials, both civil and criminal, and all civil trials, hearings and court appearances scheduled through April 13, 2020 to be reset no earlier than April 14, 2020; extended filing deadlines in the Louisiana Supreme Court and allowed parties to submit motions with the Louisiana Supreme Court if unable to meet deadlines due to COVID-19.
- The Louisiana Supreme Court’s most recent Order provides that all essential state court functions—both civil and criminal (such as civil protective orders, child custody matters, etc.) set forth in the previous orders should be conducted via video and/or telephone conferencing. Further, all matters that are resolved by agreement of the parties and with the approval of the court that do not involve any appearance at the court may proceed during the pendency of this order. This authority does not extend to any matters suspended by executive action by the Governor, including but not limited to evictions.
- Many Louisiana civil district courts have issued individual orders regarding court closures, extending deadlines, postponing trials, limiting office hours, and incorporating provisions of Orders from the Louisiana Supreme Court.
- A list of court orders and announcements in response to COVID-19 issued by each civil district court, Louisiana courts of appeal, and the Louisiana Supreme Court, can be found under the “Louisiana court orders and information” tab at lasc.org.
Texas stay-at-home orders
- Although Texas has not issued a statewide stay-at-home order, on March 19 Governor Abbott issued Executive Order GA-08, which placed the following restrictions on Texans through April 3: (1) no social gatherings of more than 10 people; (2) bars and restaurants may only operate by drive-thru, pickup, or delivery; (3) a prohibition on visiting nursing homes and retirement or long-term care facilities unless to provide critical assistance; and (4) the closure of schools (not daycares), gyms, and massage parlors.
- On March 31, Governor Abbot issued Executive Order GA-14 expanding the restrictions of Executive Order GA-08 through April 30. In addition to the places of business enumerated above, the new Order also provides that persons shall avoid visiting tattoo and piercing parlors and cosmetology salons. The Order exempts “essential services,” defined to include all services identified as such by the U.S. Department of Homeland Security in its Guidance on the Essential Critical Infrastructure Workforce, Version 2.0, plus religious services. The Order also provides requires those in Texas to “minimize social gatherings and . . . in-person contact with people who are not in the same household.”
- On April 12, Governor Abbot issued a Disaster Proclamation extending the March 13 disaster proclamation for another thirty days.
- On March 26, Governor Abbott issued Executive Order GA-11 requiring individuals traveling by plane from New York, New Jersey, Connecticut, or New Orleans to self-quarantine for 14 days.
- Under Section 418.173 of the Texas Government Code, failure to comply with any executive order issued during the COVID-19 crisis is punishable by a fine not to exceed $1,000, confinement in jail for a term not to exceed 180 days, or both.
- As of April 2, sixty Texas counties and eighteen cities have issued their own stay-at-home orders which generally require all citizens to stay at their place of residence except for “essential activities,” which include obtaining medical supplies and visiting healthcare professionals, obtaining food supplies, and outdoor activities complying with social distancing rules. The orders also require all non-essential businesses to cease. Essential businesses include healthcare operations, law enforcement, public works, and critical infrastructure businesses such as energy, oil refinement, water, and roads and highways. Orders have been issued in the following counties and cities: Austin, Bell, Bexar, Bowie, Brazoria, Brazos, Brooks, Burnet, Cameron, Cass, Castro, Chambers, Collin, Comal, Culberson, Dallas, Denton, Duval, El Paso, Ellis, Erath, Fort Bend, Galveston, Gregg, Harris, Hardin, Hays, Hildalgo, Hood, Hunt, Jasper, Jefferson, Kaufman, Klegberg, Lee, Liberty, Marion, McLennan, Milam, Montgomery, Nacogdoches, Navarro, Newton, Nueces, Orange, Parker, Polk, Robertson, Rockwall, San Jacinto, Smith, Scurry, Starr, Stephens, Tarrant, Travis, Tyler, Valverde, Willacy, and Williamson Counties; and the cities of Austin, Beaumont, Corsicana, Edinburg, El Paso, Fort Worth, Hideaway, Lakeway, Lampasas, Laredo, Longview, McKinney, New Braunfels, Richardson, Rockport, San Antonio, and Waco.
Status of Texas state courts
- The Texas Supreme Court has issued eight emergency orders in response to the COVID-19 pandemic. Among other things, these orders allow Texas courts to modify or suspend deadlines without consent of the parties; allow parties, witnesses, court reporters, and witnesses to participate in trial, hearings, and depositions remotely; and extend statutes of limitations. On April 1, the Court issued its eighth order, tolling the statutes of limitations for all civil cases from March 13 until June 1, 2020. In addition, no residential eviction cases may proceed until after April 19, 2020.
- Various Texas state courts have issued individual orders and announcements closing courts, extending deadlines and postponing trials, and imposing electronic filing requirements. A list containing links to each court’s order is maintained by the Texas Office of Court Administration, and up-to-date information can be obtained by visiting the individual courts’ and district clerks’ websites or by calling the court directly. Texas courts of appeal announcements and orders are available on the Texas Judicial Branch website. For district courts in Houston, county-wide information and court- and judge-specific information and notices are available on the Harris County District Court website. As not all Texas counties have operating websites, counsel should contact the courts in those counties by telephone.
Federal courts in Louisiana and Texas
Links to COVID-19 announcements and orders for the federal district courts in Louisiana and Texas can be found here:
Eastern District of Louisiana: http://www.laed.uscourts.gov/coronavirus-covid-19-orders-and-notices
Middle District of Louisiana: https://www.lamd.uscourts.gov/
Western District of Louisiana: https://www.lawd.uscourts.gov/
Southern District of Texas: https://www.txs.uscourts.gov/page/covid-19-general-and-special-orders
Northern District of Texas: http://www.txnd.uscourts.gov/
Eastern District of Texas: http://www.txed.uscourts.gov/
Western District of Texas: https://www.txwd.uscourts.gov/coronavirus-covid-19-guidance/
Status of Louisiana land records offices
- In all sixty-four (64) parishes, Louisiana clerks of court maintain land records offices which real estate closing attorneys rely upon to record sales and mortgages and conduct title examinations. Currently, all land records offices are either closed to the public or have limited hours in response the COVID-19 pandemic. However, nearly all of these offices have kept in place some type of alternative method for accepting the filing of instruments by mail, overnight courier, drop box, facsimile, or electronic recording (or some combination of the foregoing). These acceptable alternative filing methods vary from parish to parish and remain fluid at this time.
- While most real estate closings are still able to proceed in normal course with instruments filed for recording, not all parishes are currently able (1) to regularly log the date, time, and order of filing and (2) to update the index maintained by each office. Efforts are underway to maintain the recording indices in various parishes, and at least two-thirds (2/3) of parishes are now able to regularly update their index, which is critical to performing title searches required for real estate closings. While nearly all parish record rooms customarily used to conduct title searches remain closed, over eighty (80%) percent of the parishes offer the ability to conduct title searches through some type of remote online access to records. Title insurance underwriters have implemented additional procedures and safeguards that may allow for the conducting of insured closings in some parishes that are not fully operational, but these procedures vary depending upon the circumstances and must be carefully navigated on a case-by-case basis.
Status of Remote Online Notarization in Louisiana
The ability to notarize documents has become more challenging as a result of the COVID-19 pandemic. Remote Online Notarization, more commonly known as RON, is an alternative procedure where documents are notarized by video conference, rather than in person. Specifically in response to the COVID-19 pandemic, Louisiana Governor John Bel Edwards issued Proclamation No. 37 JBE 2020 which authorizes Louisiana notaries to use RON on a temporary and limited basis for instruments other than authentic acts, donations, and certain other excluded acts. Some, including the Louisiana Secretary of State and the Louisiana Notaries Association, have questioned the legality of the executive order relating to RON without legislative action. Indeed, there have been failed attempts to pass legislation in Louisiana which would have authorized and regulated the use of RON, as has been done in several other states. A bill (HB 122) to authorize and regulate the use of RON in certain limited circumstances was introduced this legislative session, however the Louisiana Legislature is now in recess as a result of the COVID-19 pandemic. Further legislative action on the RON bill—or action to ratify the Governor’s executive order—cannot be addressed until the Legislature reconvenes. In addition to these efforts at the state level, there are bills (S. 3533 and H.R. 6364) pending in the United States Congress that would allow notaries commissioned in any state to perform a remote notarization that occurs in or affects interstate commerce. While some title insurance underwriters are authorizing the use of RON under limited circumstances if certain procedures are followed, certain lenders are prohibiting its use. Whether or not RON will become an acceptable alternative for real estate closings will depend upon actions at the state and federal level and by lenders and title insurance underwriters in the coming days and months. This issue remains fluid at this time.
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