TBJ DECEMBER 2022
Texas Supreme Court
Seeks Comments on
Remote Participation Rules
Recognizing the challenges of remote participation in some proceedings, the rules include guidance for good cause.
Written by Amy Starnes
The Texas Supreme Court has proposed new rules—built on a “pilot
program” made necessary by the COVID-19 pandemic—to govern remote
participation in civil proceedings going forward. The court invites
written comments on the rules by email to rulescomments@txcourts.gov by
January 1, 2023.1
Under the proposed rules, courts may allow or require a court
participant to appear remotely. However, the rules prohibit a district
or county court from requiring a lawyer, party, or juror to appear
remotely in a jury trial unless the parties agree. Similarly, when a
district or county court hears oral testimony, it cannot require a
lawyer or party to appear remotely absent the parties’ agreement or good
cause.
Recognizing the challenges of remote participation for complex,
multi-party, multi-witness proceedings, the rules include guidance for
determining good cause. The guidance emphasizes important
access-to-justice considerations, such as lack of transportation and
barriers to in-person attendance for some court participants who often
were overlooked before the pandemic.
Texas Supreme Court Chief Justice Nathan L. Hecht said, “As we
examined remote proceedings in thousands of cases throughout our state’s
diverse judicial system, we learned that they increase participation
rates among those without access to counsel or the ability to appear in
person in court for their hearing.”
According to the Texas Access to Justice Commission, despite legal aid
services and the pro bono efforts of many Texas lawyers, our legal
system meets only about 10% of the civil legal needs of low-income
Texans. In a December 2021 study of 12 months of remote proceedings in
Texas, the National Center of State Courts discovered a dramatic
increase in party participation in some kinds of remote court
proceedings because appearing remotely reduced obstacles to attendance.
The court’s proposal is the culmination of two years of work. In
September 2020, the Texas Judicial Council recommended that the court
remove barriers to continuing remote proceedings beyond the pandemic. In
response, the court created the Remote Proceedings Task Force and named
Chief Justice Tracy Christopher, of the 14th Court of Appeals, to chair
it. The task force, composed of 19 judges and lawyers from around the
state, evaluated existing statutes before submitting draft proposals to
the court in November 2021.
In December 2021, the court referred these draft proposals to its
55-member Supreme Court Advisory Committee, a standing committee of
judges, lawyers, and academics who are appointed by the court to study,
draft, and make recommendations on rules, as the court directs.
By the time the advisory committee began its work, Texas had already
recorded more than 2.1 million remote court proceedings, involving more
than 7.1 million participants, according to Office of Court
Administration data between April 2020 and January 2022.
The advisory committee reviewed the task force’s proposal at length
during four meetings in 2022.2 Before publishing the
preliminary rules for public comment, the court carefully weighed the
advisory committee’s discussions, along with correspondence from
interested lawyers.
The court plans to issue an order finalizing the rules after the comment
period closes and expects the final rules to take effect on February 1,
2023. The proposed rules are preliminary—the court may modify them in
response to comments received.TBJ
AMY STARNES
is the director of public affairs for the Texas Supreme Court. Before
joining the court in February 2022, Starnes served the State Bar of
Texas as director of public information for almost seven years
COMMENTS REQUESTED:
The Texas Supreme Court invites public comments on proposed new Texas
Rules of Civil Procedure 21d and 500.10 and on proposed amendments to
Texas Rules of Civil Procedure 21, 500.2, 501.4, and 505.1. Comments
regarding the proposed new and amended Texas Rules of Civil Procedure
should be submitted in writing to rulescomments@txcourts.gov
by January 1, 2023.
