TBJ JUNE 2022
Access to Justice Transformed
Texas courts look to new strategies to narrow the access to justice gap during the COVID-19 pandemic.
Written by Nathan L. Hecht and Brett Busby
We thank the Texas Bar Journal for focusing this issue on
access to justice. Texas lawyers understand the importance of helping
our most vulnerable neighbors meet their civil legal needs, and they
donate substantial time and money each year to assist. Yet the needs far
outstrip available resources, and they have only grown during the
pandemic. Fortunately, the pandemic has also provided an opportunity to
explore new strategies that will help narrow the justice gap. Two
strategies that have shown particular promise are remote access and
eviction diversions.
Remote Access to Courts and Counsel
Throughout our nation’s history, citizens and their lawyers who
desired an impartial civil resolution of disputes had to go in person to
the courthouse, typically in the center of town, where their cases would
be decided by judges and juries in courtrooms. Navigating this system is
challenging for many low-income Texans who cannot afford to hire lawyers
to help them address their basic civil legal needs. It is estimated only
10% of the civil legal needs of poor Texans are being met through legal
aid, pro bono, and the private bar. Even those who make more than the
income eligibility guidelines for legal aid find it very difficult to
afford representation. As a result, the number of self-represented
litigants in our courts has increased substantially. According to a 2018
report by the National Center for State Courts, or NCSC, a majority of
cases (72%) involved at least one self-represented litigant.
This system, with its promise and challenges, continued until March
2020, when COVID-19 led to a wide-ranging shut-down in our country. In
many ways, our legal system will never be the same. The Texas Supreme
Court and Court of Criminal Appeals immediately issued the “First
Emergency Order Regarding the COVID-19 State of Disaster” on March 13,
2020. That order, building upon experience with Hurricane Harvey,
authorized courts to change deadlines and procedures, allow those
involved in a proceeding to participate remotely, and conduct
proceedings in different locations. This flexibility to alter routine
processes has allowed courts to continue administering justice in the
new reality. Since that time, the Texas Supreme Court has issued 50
emergency orders related to the pandemic.
By necessity, almost overnight, access to the courts transformed. With
outstanding help from the Texas Office of Court Administration, or OCA,
which had already acquired Zoom licenses for all Texas courts, local
judges and court personnel transitioned quickly to hearing cases
virtually. Incredibly, 2,113,368 virtual hearings took place in Texas
from April 2020 through January 2022 with 7,145,219 participants
attending, according to data compiled by the OCA. Thanks to the hard
work of our judges, court staff, and administrators and the help and
patience of our attorneys, Texas has led the nation in keeping the
wheels of justice turning during the pandemic.
Although some kinds of proceedings are best conducted in person, the
option of remote hearings has provided enormous benefits for expanding
access to justice. A December 2021 study by the NCSC explored the use of
remote hearings in Texas courts during a 12-month period. The study
showed that some major advantages of virtual hearings for litigants
include the ability to participate without taking time off from work,
finding childcare, or dealing with transportation issues. Remote video
technology also allows clients to access lawyers anywhere in the state
who are willing to provide free or low-cost legal services, and it
allows those lawyers to provide representation more quickly and
efficiently without the need to travel.
Significantly, the NCSC study shows that litigant attendance at remote
hearings in civil and family cases tends to be higher, and there are
fewer default judgments. The same is true of criminal cases, which have
seen a decrease in failures to appear. Additionally, more
participants—such as family members—are able to attend hearings.
Anecdotally, judges report that there is more engagement by litigants
and participants in the hearings.
The study also found that remote proceedings can take longer than
in-person hearings, largely due to technology-related issues and lack of
preparation by participants. But another reason for longer remote
proceedings is that they increase access to justice, as litigants and
witnesses can more easily attend and participate in hearings.
Creative ideas are emerging in courts throughout the country to help
bridge the digital divide identified in the report and make remote
hearings more efficient. For example, courts can use “technology
bailiffs” to better prepare remote hearing participants for their
hearings and handle technology glitches that may occur. Additionally,
some Texas courts have loaned computer equipment and tablets to court
participants, and others have set up remote hearing stations for those
who may not have access to personal computer equipment.
The Courts and Legal Aid Diverting Evictions for
Texans
The pandemic has impacted every part of our society. It has destroyed
lives and livelihoods and has highlighted the serious problem of housing
insecurity. Many Texans lost their jobs at the beginning of the pandemic
and found themselves struggling to pay rent and make ends meet. Many
more were unable to make their mortgage payments, risking foreclosure.
To address this challenge, the Texas Supreme Court established the Texas
Eviction Diversion Program through its Twenty-Seventh Emergency Order,
which has been renewed several times (most recently in the Fiftieth
Order). With funding allocated by Gov. Greg Abbott through the Texas
Department of Housing and Community Affairs, or TDHCA, this voluntary
program sought to reduce evictions due to non-payment of rent by
enabling landlords and tenants to agree upon a resolution. If
eligibility requirements were met, past-due rent obligations and utility
delinquencies could be covered in full and the eviction case dismissed.
The program became available in all Texas counties on February 15, 2021.
Justice of the peace courts throughout the state transformed to deal
with the tsunami of evictions facing Texas families.
The Texas program has been widely successful, with more than 300,000
households receiving rent and utility payment relief. The program
benefited families facing evictions as well as landlords who were owed
rent payments, and it has become a national model. As of January 2022,
almost all of the available funds have been expended to help Texans.
The TDHCA also provided the Texas Access to Justice Foundation with $20
million to establish an Emergency Rental Assistance Program, which
provides funding that enables legal aid programs, pro bono programs, and
law school clinics to represent low-income Texans facing eviction. These
programs are working to find creative solutions to the eviction crisis
in the new environment of online hearings and trials. These funds have
been used to develop housing stability clinics and a full range of legal
services as part of an effort to maintain housing and improve housing
stability for Texas families.
The pandemic also increased the need for legal help with other serious
problems, such as domestic abuse. Children and the elderly facing
domestic violence had to quarantine in their homes with the people who
were attacking their safety and well-being.
Legal aid providers have reinvented themselves to meet these increased
needs for basic civil legal services. Legal aid programs help more than
100,000 families annually. The providers had to change their service
models to meet the needs of low-income communities that often lack
digital access. No longer could people physically go to a legal aid
office to seek services, so providers have built an infrastructure to
ensure that those who needed assistance could get the help they needed.
During the fall of 2020, Gov. Abbott’s Office provided $4.2 million in
Coronavirus Aid, Relief and Economic Security, or CARES, Act funds to
help legal aid programs create the necessary infrastructure to meet
these new challenges.
It has also been challenging for veterans to obtain legal aid at VA
clinics or hospitals, which had been very efficient delivery points but
were closed during the pandemic to all but patients. We appreciate the
support of the Texas Legislature, which understood the need and provided
additional funding to serve veterans impacted by COVID-19.
In summary, justice in this country looks very different than it did
just two years ago, and it continues to change as we blend remote and
in-person hearings. During this transformation, the courts look forward
to working with the bar to ensure that access to our courts is available
to all Texans, regardless of means.TBJ
NATHAN L. HECHT
is the chief justice of the Texas Supreme Court.
BRETT BUSBY
is a justice of the Texas Supreme Court.
