On Monday, November 1 a remote jury trial was scheduled to commence in a Travis County district court. The case arose from a 2018 apartment fire in San Marcos in which five people died and many others injured. The plaintiffs (14 in all) sued 12 defendants for negligence and gross negligence, including CBRE Loan Services, Inc. On June 2, 2021, the trial court entered an agreed scheduling order setting the case for trial on November 1. On September 24, CBRE and other defendants moved to continue the trial on the basis that a remote jury trial would be impracticable and impair their constitutional rights to due process. By the time the trial court heard the motion, it was unopposed. Nevertheless, the trial court denied the continuance and ordered the remote trial to proceed, while admitting it did not have a procedure for conducting remote voir dire with an enlarged panel.
CBRE’s co-defendants filed a petition for writ of mandamus with the Austin Court of Appeals on October 20. On October 25, those defendants settled with the plaintiffs and moved to dismiss the petition. CBRE subsequently filed its petition on October 28, which the court of appeals denied. On November 1, the date the trial was scheduled to commence, CBRE sought mandamus review from SCOTX, which on November 2 issued an emergency stay and requested response to the petition by November 12. The same day, CBRE filed a motion to dismiss its petition as moot on the basis that it had reached a settlement with the plaintiffs.
Had the case not settled, SCOTX may have considered whether its own emergency orders permit a trial judge to conduct a fully remote jury trial over the objections of one or more of the parties. Those orders have given courts fairly broad discretion to “allow or require” participants in civil and criminal cases to participate remotely, subject to “constitutional limitations.” In its petition, CBRE construes these orders to preclude a trial court from compelling a fully remote jury trial and only authorizing remote proceedings on hearings, depositions, and similar pre-trial proceedings. CBRE further argues that the trial court’s order infringed separation of powers, citing the Legislature’s determination that witness testimony at trial may only be conducted electronically with the agreement of the parties (§30.012(a), CPRC).
Finally, CBRE argued that a remote jury trial would violate its rights to due course and due process of law under the Texas and U.S. Constitutions. Specifically, a remote trial would deprive them of the ability to confront and cross-examine witnesses, introduce distractions and outside influence to the jury process, create significant potential for user error and technological deficiencies, prevent the court from adequately controlling the virtual environment, and deprive the parties of the ability to observe prospective jurors during voir dire. CBRE additionally argued that a remote jury trial would deprive them of equal protection of the law, since similar cases have either been tried in person or continued until in-person trials were feasible.
TCJL and other organizations raised all of these concerns when during the regular session the Legislature considered a bill authorizing fully remote jury trials without the consent of the parties. The Texas Chapters of the American Board of Trial Advocates (TEX-ABOTA) echoed these concerns in an amicus brief filed with the Court in In re Willis (No. 21-0472) last summer. That case was abated when the trial court agreed to continue the trial until an in-person jury trial could be held. Consequently, we still don’t have the definitive word of whether SCOTX’s emergency powers can be used authorize trial courts to hold remote jury trials on their own motion and without unanimous consent. Now that the pandemic appears to be easing, the issue may well become moot before that word is given.