Texas Appellate Law Blog : Texas Appellate Lawyer & Attorney : Smith Law Group, P.C. : Appeals, Sanctions, Summary Judgment : Austin, Texas

This afternoon at 2:00, the Texas Supreme Court will hold a public hearing to explore the feasibility of a statewide uniform system for electronic court filings.  The hearing will take place in the Supreme Court Courtroom and will be webcast live here.

The Court is considering whether Texas ought to implement a system modeled to some degree after Public Access to Court Electronic Records (PACER), the federal courts’ electronic document portal.  In conjunction with the Case Management-Electronic Case Filing (CM-ECF) feature, PACER allows litigants to file documents electronically at no charge, 24 hours a day.  Parties and the public may access the docket online and may view and download listed documents for a fee.

Followers of this blog know that I have advocated e-filing for years and have watched closely as our state e-filing processes have developed.  Texas has made great strides in this area, but the current system is far from perfect.  PACER/CM-ECF has its flaws too, but it has been implemented successfully in federal trial and appellate courts and provides a reference point to something other than the state courts' filing-fee driven model.

A system that is not fee-based at the filing stage would level the playing field for everyone with access to a computer and an internet connection, and a uniform approach to e-filing and online document access would be inherently valuable.  We should applaud the Supreme Court for considering the need for and benefits of a uniform system and for taking the initiative to gather more information about the options going forward.

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Texas appellate e-filing continues to evolve at a rapid pace.  Effective September 12, 2011, attorneys filing documents in the Texas Supreme Court must do so electronically.  Pro se parties may e-file, or they may submit paper documents.

View the Court's latest e-filing order here.  Don Cruse has broken down the new order over at the Supreme Court of Texas Blog.

Aside from SCOTX, e-filing is available in the following state appellate courts:  Austin, Dallas, Eastland (new as of August 8), Houston (1st District), and Houston (14th District).  The Texarkana court may be next in line, as its website states that e-filing will be available there soon.

For background on this development, see the following posts:

• When Will Appellate Courts Catch Up on E-Filing? (1/3/07)
• Appellate Court E-Filing Becoming a Reality (2/15/10)
• More on Appellate E-Filing (4/9/10)
• At Last, E-Filing Is Coming to Texas Appellate Courts (3/3/11)
• Texas Appellate E-Filing Goes Live (3/28/11)
• The Adaptable (Appellate) Lawyer (6/28/11)

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I recently attended the 2011 State Bar of Texas Annual Meeting in San Antonio.  As mentioned here before, the Bar asked me to come back as a presenter this year.  It was quite an honor.

My subject was e-filing in state and federal appellate courts.  In conjunction with my talk, I published a short article in the June issue of the Texas Bar Journal outlining some recent developments.

My presentation was part of the Computer and Technology Section's "Adaptable Lawyer" track.  The track had its own mobile app allowing easy access to the schedule, speaker and exhibitor info, maps, and the conference Twitter feed (#sbot11).  

The outline of my talk appears below in case anyone is interested in a quick overview.  I have inserted some useful links to enhance its value as a resource for those venturing down the path of appellate e-filing.

6/30/11 Update:  The Texas Supreme Court has released the final version of new TRAPs 9.2 and 9.3, which become effective today.  The final version allows the Supreme Court and Court of Criminal Appeals to set the number of paper copies by separate order.

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Here is the text of an e-mail I received from SCOTX Clerk Blake Hawthorne this morning, along with links he included in the message:

Effective March 28, 2011, you may electronically file documents, pay your fees, and serve opposing counsel using the Texas.gov electronic filing system. To use the electronic filing system you must first choose an electronic filing service provider and register. Please remember to send two paper copies of your filing to the Court when you use the electronic filing system.

If you choose to file using the traditional paper filing method, you must still e-mail electronic copies of petitions, responses, replies, briefs on the merits, amicus briefs, post-submission briefs, motions for rehearing, and emergency motions to the Clerk of the Court on the same day that the paper copies are filed. The electronic copies must be e-mailed to scebriefs@txcourts.gov.

For more details, see the Electronic Copy and Electronic Filing Rules for the Supreme Court of Texas. For more information about creating electronic briefs, please read this Guide to Creating Better Electronic Briefs. You can also watch a video that shows step-by-step instructions for using Adobe Acrobat to create an electronic brief.

For background, see my three previous posts.

The First and Fourteenth Courts of Appeals have gone live as well, with others to follow throughout the year.

I filed a reply in the Texas Supreme Court late last week and would like to have taken advantage of the new system.  I expect to file another brief there fairly soon and will report on the experience afterward.  If Tex.gov has fixed the bugs and the system works like trial-court e-filing does now, it should go smoothly.

5/9/11 Update:  The Third Court of Appeals is accepting e-filing as of today.  According to its website, e-filing is now the "preferred method for filing" in the Third Court.

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So say the programming people, according to TexParte.  See my last two posts for more information.

That should give us plenty of time to try the system out before I speak on appellate e-filing at the 2011 State Bar of Texas Annual Meeting in San Antonio in late June.  The State Bar has invited me back, this time as a presenter.  It should be another great program.

Meanwhile, if you're going to be in Austin on March 31, make plans to attend the Austin Bar Association Solo/Small Firm Section's annual Half-Day CLE.  I will be participating in a panel discussion entitled "Improve Your Business Model:  Practice Tips for Running Your Practice More Efficiently and Profitably."  More information about the program and registration information is available here.

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Texas.gov has pushed back the previously announced March 14, 2011 launch for Texas appellate e-filing, according to Texas Supreme Court Clerk Blake Hawthorne.  In the process of addressing performance issues in Harris County, technical problems have arisen regarding electronic payments.  A new roll-out date has yet to be announced.

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Four years ago, I first asked when appellate courts would catch up on e-filing.  Since then, the Fifth Circuit has successfully implemented an e-filing program, which has been mandatory for almost a year now.  In state appellate courts, however, the process has been painfully slow.

The Texas Supreme Court took a giant step in the right direction this week by releasing amendments to the Texas Rules of Appellate Procedure that expressly allow the Supreme Court, the Court of Criminal Appeals, and the intermediate courts of appeals to "permit[] or require[] [documents] to be filed, signed, or verified by electronic means . . . ."  Amended TRAPs 9.2 and 9.3 are open to public comment through May 31, 2011 and, with any modifications, will take effect June 30, 2011.

The amending order promulgated templates for local rules governing electronic copies and electronic filings in the courts of appeals.  These templates mirror e-copy and e-filing rules the Supreme Court adopted by separate order, which take effect March 14, 2011.  The second order supersedes the Supreme Court's current e-copy practices, but retains features that have become familiar to those who routinely file documents with the Court.

The e-filing rules represent the most significant change.  Through the Texas.gov portal familiar to many trial-court practitioners, parties will be able to submit PDF documents to the Supreme Court and other registered users for filing and service.  This functionality was supposed to be wrapped up in the Texas Appeals Management and E-Filing System (TAMES) project, but the TAMES rollout dates have been pushed back repeatedly.  Apparently unwilling to wait any longer, the Supreme Court has effectively separated e-filing from TAMES.  With the local-rule templates, the Court has laid the groundwork for e-filing in other appellate courts as well.

Unlike the Fifth Circuit, the Texas Supreme Court's e-filing program is voluntary.  Like the Fifth Circuit, paper copies are still required.  The day is coming when submissions to appellate courts will be electronic only.  It's just not here yet.

Related Posts:

• When Will Appellate Courts Catch Up on E-Filing?
• Lawyers to Push CCA for E-Filing in Death Penalty Cases
• Appellate E-Filing Update
• Third Court Taking Courtesy E-Copies
• Appellate Court E-Filing Becoming a Reality
• More on Appellate E-Filing

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The Texas Supreme Court has amended its recent order requiring submission of documents in electronic form.  Among the changes to the previous version are requirements that attorneys (1) provide an e-mail address when submitting e-copies, (2) e-mail courtesy copies to opposing lead counsel, and (3) register for CaseMail in cases in which they are lead counsel.  The order—which takes effect on May 31, 2010—also reduces the number of paper copies required whenever a party files a motion with the Court.

For background information on this development, see these related posts:

• Appellate Court E-Filing Becoming a Reality
• More on Appellate E-Filing

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Early this year, I accepted an offer from Texas Lawyer to write a quarterly column on technology issues affecting the publication’s namesake audience.  The first article in this series—an update on appellate e-filing in Texas—appeared in this week’s issue. I am happy to report that Law.com picked it up as well.

I've received some nice feedback about the article since it came out.  One particular commenter, Houston’s Scott Rothenberg (who, by the way, gives great ethics CLE presentations and is one of the funniest appellate lawyers you could ever meet) pointed out to me that the Supreme Court Advisory Committee has been considering how the appellate rules should be modified in conjunction with the TAMES program’s forthcoming launch.  The SCAC’s initial rule re-draft and a proposed order directing the form of the record in civil cases are available through the links provided.

The SCAC thoroughly debated this initial proposal about a year ago (the meeting transcripts are here and here), but apparently has not come back to it since then. Though not an item on the current SCAC meeting agenda, the working re-draft provides a glimpse of the kinds of rule changes we should expect to hear more about soon.

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Three years ago, I asked when appellate courts were going to catch up on e-filing. At the time, I noted some of the advantages e-filing presents over traditional methods and observed that appellate courts had been slow to meet the trend.

Times are finally changing.

Effective today, the Texas Supreme Court requires parties to e-mail searchable PDF copies of just about every kind of filing other than a motion for extension of time. Sending e-copies is not yet sufficient to constitute filing; for now, the Court still requires the regular paper versions. 

In the Fifth Circuit, voluntary e-filing has been available since December through the Court’s electronic case filing (ECF) system.  However, the Fifth Circuit will be converting to mandatory ECF filing on March 15, 2010. As of that date, unless excused for good cause, counsel must register as an approved filer and comply with the Court’s electronic filing standards, which will be familiar to existing PACER users.  More information is available through this link.

Full-blown e-filing is on the horizon in Texas state appellate courts as well.  As previously discussed here, the Office of Court Administration has been working on the Texas Appeals Management and E-Filing System (also known as TAMES) for some time.

Third Court of Appeals Chief Justice Woodie Jones discussed TAMES in detail during his recent talk to the Austin Bar Civil Appellate Law Section.  Essentially, TAMES will work much like Texas trial-court e-filing does now, with litigants submitting documents in PDF format to a site that will transmit them to the appellate court and other registered users for filing and service.  According to Chief Justice Jones, TAMES will roll out in the Dallas and Houston courts of appeals this May, with the Austin court following shortly thereafter.  I would expect the Texas Supreme Court to be part of this early initiative as well.

As the appellate courts begin the inevitable transition to bona fide e-filing, trial-court clerks and court reporters must find ways to provide appellate records to the parties and courts in digital form.  Jurisdictions that mandate e-filing at the trial-court level have an advantage in that process.  Others will have to catch up.

Update:  Don Cruse has some additional thoughts on the Texas Supreme Court's e-copy initiative over at the Supreme Court of Texas Blog.

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Following up on this post, about 300 Texas lawyers have petitioned the Court of Criminal Appeals to adopt a rule permitting the e-filing of petitions, motions, and other documents in death penalty cases.  (UPDATE:  Per this news report, the CCA has agreed to allow e-mail filingfor emergency motions in death penalty cases and other "extraordinary matters.")

As mentioned here, the Texas Supreme Court allows parties to e-mail documents in emergency situations, although it doesn't consider them filed until it receives paper copies.  Change is on the horizon, however, as the state legislature appropriated $2.3 million in the current budget cycle for the State Office of Court Administration to start working on the Texas Appeals Management and E-Filing System.  As with anything government-related, it won't happen quickly, but it will happen.

(Hat tip to the Tex Parte Blog.)

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Austin Lawyer Chuck Herring is circulating a petition to be submitted to the Court of Criminal Appeals (download PDF here), along with the following message:

RE: Rule-Making Petition To Permit E-Filing in Death Penalty Cases

You may have seen the extensive press reports concerning the recent actions of Presiding Judge Sharon Keller of the Texas Court of Criminal Appeals.  In a death-penalty case (Richard), she allegedly refused to permit Mr. Richards lawyers to file papers after 5:00 p.m. on the very day when he was scheduled to be executed.  The lawyers computer had crashed, and they asked for only a twenty minute extension of time to permit the filing which ordinarily the Court grants routinely in death penalty cases when execution is imminent.  On that same day the United States Supreme Court had granted certiorari review on the same point that Mr. Richards's lawyers attempted to raise on his behalf concerning the constitutionality of lethal injection.  Thus, almost certainly a stay of execution would have been granted if Judge Keller had permitted the filing.  She also concealed her unilateral ruling from other judges on the Court, some of whom have publicly criticized her conduct.  As a result, Mr. Richard was executed at 6:00 p.m.on a day when he should have lived.

The press has reported that some twenty prominent Texas lawyers—including a former Bar president and various law professors—have filed a judicial disciplinary complaint against Judge Keller.  Press coverage and editorials across Texas, the country, and even in other nations, have condemned both Judge Keller's actions and the Texas system of justice. . . .

The Richard case dramatizes a glaring deficiency in the Courts procedures:  the Court does not permit e-filing (filing by electronic means).  Many courts and agencies, of course, permit e-filing.  Some require e-filing.  If the Court of Criminal Appeals had permitted e-filing in the Richard case, his lawyers would have been able to file the papers even by the 5:00 p.m. deadline that Judge Keller unilaterally imposed.

Therefore, to help avoid a recurrence of such a tragic, unnecessary execution, lawyers across Texas are joining together to petition the Court to adopt a rule to permit e-filings in death-penalty cases.

Please take a moment to review, sign, and return the attached petition, so that we can help avoid another similar malfunction of justice—and please circulate this petition to other attorneys who may be willing to sign the petition.

Please mail or email (pdf) completed petitions for delivery by Wednesday, October 24th, to:

Chuck Herring
Herring & Irwin, L.L.P.
1105 W. 12^th Street
Austin, Texas 78703
email: cherring@herring-irwin.com

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I don't practice criminal appellate law, and I don't ordinarily follow the the Texas Court of Criminal Appeals, but even I notice when the CCA makes front-page news for the wrong reasons.

In case you haven't heard, the media is lambasting the CCA (more specifically, Presiding Judge Sharon Keller) for refusing to keep the clerk's office open past 5:00 to accept a last-minute filing in a death penalty appeal.  Earlier the same day, the U.S. Supreme Court granted certiorari in a Kentucky case challenging lethal injections as cruel and unusual punishment, and Texas death row inmate Michael Richard was scheduled to die by lethal injection that evening.  The media coverage provides the details, but because of Presiding Judge Keller's decision, the Richard execution went forward without the possibility of court intervention on potentially meritorious grounds.

The Texas Supreme Court doesn't make life-or-death decisions, and it is receiving its share of negative press these days.  But one of the things that court does right is allow electronic or after-hours submissions (with an advance call to the clerk's office, as apparently occurred in the Richard case) to get emergencies in front of the Court when its decisions can still make a difference.  One would think that if a civil court can accommodate litigants when money is the only thing at stake, a criminal court could do the same in matters of life and death.

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Since opening my practice, I have tried to take advantage of technology whenever possible.  One of the best developments has been the advent of electronic court filing.  Sitting at my desk, I can e-file a document for less than what it would cost to have a hard copy delivered to the Travis County Courthouse a few blocks away.  This is a powerful tool for fairly computer-literate practitioners looking to streamline their office procedures and capitalize on new technology as a means of becoming more efficient.

I recently filed an appeal from a Dallas County judgment using my e-filing service, which provides near-immediate electronic confirmation that the clerk has received and accepted the filing.  In the old days, I would have sent the initial appeal papers by regular or overnight mail and waited a few days before receiving a file-stamped copy as confirmation.  As with other forms of technology, e-filing is helping to break down geographic barriers in the practice of law.

Unfortunately, both federal and state appellate courts have been slow to meet this trend.  While they have developed very helpful web sites that make orders and opinions available online and through e-mail notification, parties cannot yet file appellate briefs electronically.  The Texas Supreme Court has made strides by posting briefs and oral arguments on its site.  More work is needed to make e-filing in appellate courts a reality.

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