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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

 



Michael TruesdaleAMY 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.


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