Summary

The Texas Supreme Court issued a new administrative order on January 27, 2023, finalizing rule changes regarding notice and appearances at court proceedings. Effective February 1, 2023, the order completes implementation of TRCP 21d, a new rule entitled "Appearances at Court Proceedings."

The order also amends TRCP 21(b) regarding service of notice, changing terminology from "Service of Notice of Hearing" to "Service of Notice of Court Proceeding." Notice of any court proceeding must now contain information needed for "participants," as defined in Rule 21d(a), to participate in the proceeding, including providing a location of the proceeding or instructions for joining a proceeding electronically, the court's designated contact information, and instructions for submitting evidence. Courts must also publish information needed for participants to participate in its proceedings.

This link will take you to the full text of the order approving new Rule 21d and changes to 21(b).

Background

For almost two years during the pandemic, court hearings in Texas were conducted remotely via Zoom. Despite a return to in-person proceedings, the use of Zoom continues to play a significant role in our court system. Rule 21d aims to ensure consistency and fairness in all court appearances, whether in person or remotely.

Rule 21d lays out guidelines for appearances at "court proceedings," including definitions of critical terms, the method of appearance for participants, and the ability for judges to appear electronically. Additionally, the rule addresses the procedure for objecting to certain methods of appearance and the factors for determining good cause for an objection.

The rule also reiterates the public's right to access court proceedings and circumstances under which a proceeding may be closed to the public. This blog post delves into new Rule 21d and its implications for court proceedings in the digital age.

New Definitions in Rule 21d

A "court proceeding" is defined in Rule 21d as an appearance before the court, such as a hearing or trial. This includes any legal matter before a judge or other court official, including court trials, hearings, and motions.

The rule defines a "participant" as any party, attorney, witness, court reporter, or juror participating in a court proceeding. Anyone involved in a legal matter in front of a judge is considered a participant and is, therefore, subject to the new rule's provisions.

Method of Appearance by a Participant

Rule 21d(b)(1) states that unless the notice of court proceeding states otherwise, a person who participates in a court proceeding does so by physical presence in the courtroom. This means the default method of appearance for a court proceeding is for all participants to be physically present in the courtroom. However, the rule also provides that the court may allow (or require) alternative appearance methods, such as videoconference or teleconference, upon appropriate notice by a party or the court, except as provided below.

Cases in which oral testimony is heard: Rule 21d(b)(2)(A) states that a court must not require a party or lawyer to appear electronically for a court proceeding in which oral testimony is heard absent good cause or agreement of the parties.

Jury trials: Rule 21d(b)(2)(B) states that a court must not require a lawyer, party, or juror to appear electronically for a jury trial absent agreement of the parties.

Method of Appearance and Location for Judges

A judge may appear at a court proceeding by videoconference, teleconference, or other available electronic means. However, even if appearing electronically, the judge must conduct the court proceeding from a "location required by law."

The Comment to the 2023 rule states the judge may appear by electronic means but requires the judge to conduct the court proceeding from a "location required by law" as defined by TEX. CONST. Art. V, § 7(d); and TEX. GOV'T CODE §§ 24.030(a), 26.002(c), each of which states that a district court shall conduct its proceedings at the county seat in which the case is pending.

A judge appearing electronically from within the physical courthouse would qualify, whether inside the courtroom or from within the court's chambers, but what about another location, such as the residence of the judge?

Objections to Method of Appearance

Under Rule 21d, a party has the right to object to a method of appearance for good cause shown. The objection must be made within a "reasonable time" after a party receives notice of the method of appearance. The court may but is not required to conduct a hearing on the objection but must rule on the objection with communication to the parties by written order or on the record.

Good Cause Factors

In determining whether to sustain an objection to a method of appearance, the court must weigh good cause factors, including the nature of the case, type of proceeding, number of parties and witnesses involved, the complexity of the legal and factual issues, and evidence to be presented. Factors such as limited access to or proficiency with technology, transportation challenges, distance, and work schedules must also be taken into account, as well as the availability of language access services and accommodations for individuals with disabilities.

Open Courts

The Open Courts Provision of the Texas Constitution guarantees the public the right to access and observe court proceedings. Found in Article I, Section 13 of the Texas Constitution, this provision states, "all courts shall be open, and every person for an injury done him, in his lands, goods, person or reputation, shall have remedy by due course of law." This means all court proceedings must be conducted in a public forum, and the public has the right to attend and observe court proceedings, subject to certain exceptions.

Under 21d (f), if a court conducts a court proceeding in which all participants will appear electronically, the court must provide the public with reasonable notice of how to observe and an opportunity to observe the court proceeding unless the court determines it must close the court proceeding to protect an overriding interest, after considering less-restrictive alternatives to closure, and making findings on the record adequate to support closure.

During Covid, the open courts provision was complied with by broadcasting the proceedings to a court's dedicated YouTube channel.

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