text: 16158 1 2 3 4 5 6 * * * * * * * * * * * * * * * * * * * * 7 MEETING OF THE SUPREME COURT ADVISORY COMMITTEE 8 August 24, 2007 9 (FRIDAY SESSION) 10 11 * * * * * * * * * * * * * * * * * * * * 12 13 14 15 16 17 18 Taken before D'Lois L. Jones, Certified 19 Shorthand Reporter in Travis County for the State of 20 Texas, reported by machine shorthand method, on the 24th 21 day of August, 2007, between the hours of 9:02 a.m. and 22 5:02 p.m., at the Texas Law Center, 1414 Colorado, Room 23 101, Austin, Texas 78701. 24 25 D'Lois Jones, CSR (512) 751-2618 16159 1 INDEX OF VOTES 2 Votes taken by the Supreme Court Advisory Committee during 3 this session are reflected on the following pages: 4 Vote on Page 5 JP e-filing rules 16213 6 JP e-filing rules 16357 JP e-filing rules 16403 7 JP e-filing rules 16412 Proposed TRCP 159a 16454 8 9 10 11 12 13 14 Documents referenced in this session 15 07-15 Draft e-filing rules for JP courts 16 07-16 Memo from Mike Hatchell, MDL remand Rule 13.7 17 07-17 Complex cases draft 18 07-18 Letter from Steve Bresnen, re: complex cases 19 07-19 Letter from Tommy Bastian, re: home equity loan foreclosure task force 20 07-20 Proposed TRCP, re: automatic substitution of current 21 state officers as successors in suits 22 *-*-*-*-* 23 24 25 D'Lois Jones, CSR (512) 751-2618 16160 1 *-*-*-*-* 2 CHAIRMAN BABCOCK: Okay. We are on the 3 record. Welcome, everybody, to the August 24th meeting of 4 the Supreme Court Advisory Committee. Is that Buddy down 5 there yapping? All right, Buddy, come on. 6 All right. Welcome, everybody. Justice 7 Hecht, as usual, will lead off with a report, although 8 maybe not much to report over the summer. 9 HONORABLE NATHAN HECHT: No, not much to 10 report, but I just -- we'll get to it in just a moment it 11 looks like, it's first up, but I want to say how pleased 12 we are with the hard work that Judge Lawrence's task force 13 has done on these justice court e-filing rules, and we 14 really are trying to get these in place by January the 15 1st. They'll cover a lot of cases and a lot of different 16 kinds of cases. 17 The -- I went to part of the meeting that 18 they had, and we had a lot of good input into these, and 19 it just reminds me again that we call on so many people to 20 volunteer to make these processes work and they do such a 21 good job, and, of course, the Court's indebted to them for 22 agreeing to do it and for completing their work, but also 23 the whole system is in their debt, so I just want to say 24 that before we start, but that's all I think I have. 25 CHAIRMAN BABCOCK: Okay. Well, let's get D'Lois Jones, CSR (512) 751-2618 16161 1 right to JP e-filing rules. I know we have a couple of 2 guests, Mike Griffith and Alan Martin, who are here as 3 resources for us, and I'll turn it over to Judge Lawrence, 4 wherever he is. There he is. 5 HONORABLE TOM LAWRENCE: Okay. You have in 6 your handouts something from Jody Hughes about e-filing, a 7 fairly thick document. There is an introduction, but 8 basically last May 11th -- no, when did they appoint this? 9 It was about seven or eight weeks ago, I guess, the 10 Supreme Court appointed an e-filing committee, and it was 11 a combination of some very experienced JPs in the state 12 plus technical people and some clerks, county and district 13 clerks, and others that have had some experience with 14 e-filing rules to respond to a legislative mandate to come 15 up with e-filing rules to be promulgated by the Court by 16 January the 1st. So Justice Hecht kindly gave us a full 17 seven weeks to get this project up and going. So we -- 18 and we met the deadline, and we have a finished version. 19 What you have in the first few pages is kind 20 of an explanation, and then after that is the order 21 appointing the task force, and then we get into what we 22 call the clean version of the rules. After we had gone 23 through all of our discussions and changes, we have a 24 clean version, and then at the end of that is kind of a 25 redline version showing some of the changes that we went D'Lois Jones, CSR (512) 751-2618 16162 1 through. We were greatly assisted in that there are, of 2 course, as you know, e-filing rules in effect now for the 3 county and district courts that have been in effect for 4 sometime that Jody Hughes administers as part of his job, 5 and we also have two guests here today that were 6 instrumental in formulating these rules and also have a 7 lot to do with the e-filing rules, and that is Mike 8 Griffith, who I'll ask to stand, with Bearing Point -- 9 he's with TexasOnline, and then the next one is Alan 10 Martin with the Texas DIR, which actually oversees all of 11 this, and they were at an initial meeting that we had in 12 Austin, and they participated in all of the various 13 e-mails that we had. 14 We started out with the premise that we 15 would try to piggyback as much as possible on the existing 16 e-filing rules for county and district court, knowing that 17 there would have to be some changes, and we had a full-day 18 meeting here in Austin where we actually formulated a plan 19 and went through the rules one by one. Realizing that 20 some of the things would have to be changed, we made those 21 changes. Some of the changes that are made were actually 22 changes that probably the county and district court 23 e-filing rules may want to change themselves, some 24 suggestions that they made that would improve it. Others 25 were changes that needed to be made simply because of the D'Lois Jones, CSR (512) 751-2618 16163 1 nature of the JP courts. 2 And then we initially had a plan that the 3 acceptance of these rules would be on a county-by-county 4 basis like the existing e-filing rules are, and we would 5 have some accommodation of a majority vote or some other 6 type of a vote by the JPs within that county to decide to 7 do it, and then only those courts that wanted to opt in 8 could opt in, and when we left the meeting that was the 9 plan, but when we got back the next week we started 10 thinking about it and realized that a better way to do it 11 was to establish simply a statewide e-filing rule that 12 would not -- probably not be amended as it is done now 13 sometimes on a county-by-county basis, but it would be 14 statewide e-filing rule that each JP court in the state 15 could choose to opt in or opt out voluntarily, and it 16 would not depend on what other courts in that county 17 wanted to do, each court could make their own decision. 18 We thought that was a better system, and 19 that's the way the rule ended up being devised. We had a 20 few other problems as we got into it, but actually the 21 process went pretty good. It was an excellent committee, 22 and I guess if there are no preliminary questions, we'll 23 go ahead and get started. Anybody have any preliminary 24 questions? Jody, you want to add anything else? 25 MR. HUGHES: We have a question -- D'Lois Jones, CSR (512) 751-2618 16164 1 HONORABLE SARAH DUNCAN: We have a question. 2 MR. HUGHES: -- from Sarah over here. 3 HONORABLE SARAH DUNCAN: What is it in the 4 legislation, Tom, that you think enables an opt-in system 5 as opposed to a mandatory system for all JP courts? 6 HONORABLE TOM LAWRENCE: Well, the 7 legislation just simply tells the -- well, the county and 8 districts now are essentially opt-in. They don't have to 9 participate now in the e-filing if they don't want to, and 10 the Legislature didn't speak to whether or not it was 11 mandatory or silent, so we are simply parroting the 12 existing framework of that. Also, there is another factor 13 involved, and the silent partner in this are the county 14 commissioners courts. Nothing is going to happen unless 15 they vote the money to approve the e-filing for that 16 individual county, so they really are a -- you couldn't 17 mandate a statewide system where the counties had to 18 provide money unless you had some framework for doing 19 that, so this was what made sense under the existing 20 rules. 21 Okay. If you'll turn to page six of the 22 handout, we'll just go through this one-by-one. "General 23 Provisions, Part 1, Rule 1.1, scope. These rules govern 24 the electronic filing and service of court documents in 25 civil cases in all justice of the peace courts that accept D'Lois Jones, CSR (512) 751-2618 16165 1 electronic filing. These rules are adopted pursuant to 2 Texas Government Code 22.004(f) and may be known as the 3 statewide rules concerning the electronic filing of 4 documents in participating justice of the peace courts." 5 There was some initial discussion as to 6 whether or not the small claims court was considered in 7 the definition of justice of the peace courts. We 8 resolved that. It is our opinion that this would apply to 9 a small claims court case, a justice court case filed 10 under the Rules of Civil Procedure, as well as an eviction 11 case, and in the definitions we further define that and we 12 exclude criminal cases, exclude cases where the JP is 13 acting as a magistrate. If I don't hear anything I'll 14 assume that I'll just keep moving. 15 HONORABLE TOM GRAY: Okay, I'll say 16 something then. The use of the term "court documents," I 17 think you could strike the term "court," because they're 18 at some point party's documents or other's documents and 19 not necessarily court documents. That's just a -- court 20 document has a very specific use of whether or not it's 21 become a state record, and it probably has not, at least 22 with regard to many of the documents that will be 23 referenced throughout the rest of these rules. But other 24 than that comment, please proceed. 25 HONORABLE TOM LAWRENCE: Okay. All right. D'Lois Jones, CSR (512) 751-2618 16166 1 "Rule 1.2, electronic filing, (a), except as provided by 2 subsection (b) below and subject to Rule 5.1(b), the 3 electronic filing and service of court documents is wholly 4 optional." That is wholly optional both on the part of 5 the Court to accept it and wholly optional on the part of 6 the parties; and then part (b), though, says that "A 7 justice of the peace court may order any party or parties 8 in a particular case to electronically file, serve, or 9 file and serve court documents that are permitted to be 10 electronically filed under Rule 3.1." So we are giving 11 the JP court the ability if they want to in a particular 12 case to order all parties to file some or all of the 13 documents or serve some or all of the documents. 14 CHAIRMAN BABCOCK: Justice Duncan. 15 HONORABLE SARAH DUNCAN: So what happens if 16 a party or an attorney doesn't have the ability to e-file 17 and is ordered to e-file in a particular case? 18 HONORABLE TOM LAWRENCE: I think we talked 19 about that, Jody. I think it was just assumed that the 20 court would not order someone in that situation to do that 21 if they didn't have the ability. Correct me if I'm wrong, 22 my resource guys right here. 23 HONORABLE SARAH DUNCAN: For the record, I 24 wouldn't make that assumption. 25 MR. HUGHES: Yeah, I think that's right, it D'Lois Jones, CSR (512) 751-2618 16167 1 was that this does give the court some discretion, but it 2 was presumed that the court would not abuse the discretion 3 in that regard. 4 HONORABLE SARAH DUNCAN: It would certainly 5 be an easy way to dispense with a pro se case. 6 HONORABLE TOM LAWRENCE: I'm sorry, what? 7 CHAIRMAN BABCOCK: What kind of case? 8 HONORABLE SARAH DUNCAN: A pro se case. 9 CHAIRMAN BABCOCK: Pro se case. 10 HONORABLE SARAH DUNCAN: Is just to order 11 somebody that can't e-file to e-file and then they 12 couldn't file any documents and then you render judgment 13 against them. 14 CHAIRMAN BABCOCK: Elaine. 15 PROFESSOR CARLSON: We ran across that issue 16 years ago when we were looking at fax filing, and I 17 believe we put in "if feasible" or "if available," that 18 you could accomplish service party to party, if feasible. 19 And if a person wants to give their fax, telecopier 20 number, I think we called it, "if available," so we could 21 try something like that. 22 CHAIRMAN BABCOCK: How does everybody feel 23 about that? Justice Bland. 24 HONORABLE JANE BLAND: I agree with Sarah. 25 I don't -- I don't think ordering people to e-file in the D'Lois Jones, CSR (512) 751-2618 16168 1 justice courts is good to be in the rule this way, because 2 so many people in justice courts don't have access to 3 computers. You know, libraries are full of people waiting 4 to get on the computer because they don't have a computer, 5 and justice courts are predominantly pro se people. 6 HONORABLE TOM LAWRENCE: Well, I don't know 7 about predominantly, certainly a majority, but we have an 8 awful lot of attorneys, and with the jurisdictional limit 9 going up to 10,000, the percentage of attorneys probably 10 will increase, but substantially pro se, no question about 11 that. 12 HONORABLE JANE BLAND: Well, and certainly 13 they can e-file if they want to, but it seems like for 14 people that can't e-file -- 15 HONORABLE SARAH DUNCAN: I also have to say 16 I think it's ironic that we're not going to make this a 17 mandatory system for the justice courts, but they can make 18 it mandatory for any party or attorney they want to make 19 it mandatory for, for whatever reason. That's just ironic 20 to me. 21 HONORABLE TOM LAWRENCE: Well, of course, 22 that parallels the county and district court e-filing 23 rules, doesn't it, Jody, where the court can order it to 24 be mandatory then? 25 MR. HUGHES: Yeah. D'Lois Jones, CSR (512) 751-2618 16169 1 HONORABLE TOM LAWRENCE: So that's why this 2 is here, is because that's part of the county and district 3 court. 4 CHAIRMAN BABCOCK: Elaine. 5 PROFESSOR CARLSON: Tom, can I ask you a 6 question? Over on 4.5, it kind of ties into Sarah's 7 comment, "The justice of the peace court may maintain and 8 make available electronically filed documents in any 9 manner allowed by law." What are the manners allowed by 10 law? So let's say you do have a pro se litigant and the 11 other side files electronically. How do they check that? 12 HONORABLE TOM LAWRENCE: We have electronic 13 docket books now or most courts have -- let me rephrase 14 that. Courts are allowed by law to have electronic docket 15 books, so if they would -- someone would be able to come 16 in and get a printout or if they have a dumb terminal they 17 could come in and we could put something on the screen 18 that they could look at. The other alternative is that if 19 there are no electronic dockets, they could come in and 20 look at the paper dockets, the paper files. And most 21 courts probably have a combination of both, both 22 electronic and paper. 23 PROFESSOR CARLSON: Thank you. 24 CHAIRMAN BABCOCK: Anybody else think that 25 this is a problem, that the ability of a judge to make it D'Lois Jones, CSR (512) 751-2618 16170 1 mandatory for a litigant in JP court to file by electronic 2 filing? Yeah. 3 HONORABLE JAN PATTERSON: I agree with 4 the -- oh, did you call on me? 5 CHAIRMAN BABCOCK: Yeah, I did. 6 HONORABLE JAN PATTERSON: I agree with the 7 concerns raised, but if -- but I at least think that if 8 we're going to go with this draft that we ought to remove 9 the word "wholly," because it almost could be ridiculed, 10 "It's wholly optional, but a judge may order," so at least 11 say it's optional but there's a (b). It's not wholly 12 optional in any event. 13 CHAIRMAN BABCOCK: Okay. Richard. 14 MR. ORSINGER: I would ask the question 15 about what -- what is the court clerk or the judge 16 supposed to do when a pro se litigant offers a document in 17 writing after they've been ordered to submit it only 18 electronically? Does the court refuse to accept the 19 document or does the court hold the litigant in contempt? 20 HONORABLE TOM LAWRENCE: Well, I would hope 21 that a court would not refuse to accept the document in 22 that situation. 23 MR. ORSINGER: So then the only enforcement 24 mechanism would be to punish the litigant in some way, 25 right? D'Lois Jones, CSR (512) 751-2618 16171 1 HONORABLE TOM LAWRENCE: Well, we never 2 discussed what would happen if someone -- the committee 3 never got into that detail. 4 MR. ORSINGER: Well, if the practicality of 5 it is that no court is going to put a litigant in jail for 6 hand-filing a document and contrary to an order and if the 7 court is going to accept a paper filing even though it's 8 been ordered to file only electronically, then as a 9 practical matter we don't have a problem that a litigant 10 will be denied due process because of this order. 11 HONORABLE TOM LAWRENCE: Well, the 12 discussion at the committee meeting from the clerks and 13 some of the people involved in this is that this happens 14 generally when the parties want it to happen because there 15 are so many documents in a case that the parties don't 16 want to have to file things mechanically, they want to do 17 it electronically. So it usually happens in response to 18 all the parties saying, "Please let us do it like that." 19 That's what we're told. 20 HONORABLE KENT SULLIVAN: Then in my 21 estimation the rule should say that the parties can agree 22 to do so. I share the concerns that were expressed 23 earlier. This is a court that is most likely to see pro 24 se litigants and least likely to produce sophisticated 25 litigants because the amount of controversy required are D'Lois Jones, CSR (512) 751-2618 16172 1 the lowest in our system. It should be the most 2 user-friendly category of courts that we have in our 3 judicial system, and the notion that a court in this 4 category of courts can order litigants who are 5 predominantly pro se litigants to electronically file, to 6 me is completely inconsistent with the model of the court 7 system that we have. 8 CHAIRMAN BABCOCK: Okay. Yeah. Justice 9 Gaultney. 10 HONORABLE DAVID GAULTNEY: Under this rule, 11 could a particular court in a busy county decide that 12 they're going to have a standing order in every case, that 13 all filings will be electronic? And if so, I think then 14 you do have a problem where in small claims court or 15 something like that, you have an accessibility problem. 16 HONORABLE TOM LAWRENCE: Well, I suppose 17 that that could happen, but it could also happen now in 18 county and district court under those rules. 19 HONORABLE DAVID GAULTNEY: Right. And I 20 guess that's part of my concern, is I think there might be 21 clerks or perhaps -- who may refuse to file a written 22 document if there is an order from a district court that 23 says "all filings will be electronic" and if this were -- 24 so I think there is some concern with making -- with not 25 having an out for those who have inability to file D'Lois Jones, CSR (512) 751-2618 16173 1 electronically in my -- 2 CHAIRMAN BABCOCK: Jody's got the answer for 3 us. 4 MR. HUGHES: Just to address Justice 5 Gaultney's point in 1.2(b), the language on that first 6 line, "A party or parties in a particular case," I think 7 is intended to preclude kind of a broad standing order and 8 make it be that the judge would have to order it in a -- 9 you know, those particular parties in the case that's 10 before the judge. 11 HONORABLE DAVID GAULTNEY: Yeah, I 12 understand that, but if it's the routine of the judge to 13 make that order in every case -- or you're saying that 14 that language would preclude him from doing that? 15 MR. HUGHES: At least in terms, I think, of 16 a standing order that says the judge puts out and tacks up 17 in the -- you know, the bulletin board of the courthouse 18 that says "in all cases or all certain kinds of cases the 19 parties shall e-file," I think that would be contrary to 20 the particular case language. 21 CHAIRMAN BABCOCK: Does Elaine's suggestion 22 fix it if we put in "feasible" in there? Any harm in 23 doing that, Tom? 24 HONORABLE TOM LAWRENCE: I don't think so, 25 no. That's fine. D'Lois Jones, CSR (512) 751-2618 16174 1 CHAIRMAN BABCOCK: Richard Munzinger. 2 MR. MUNZINGER: Without intending to offend 3 any judge present -- 4 CHAIRMAN BABCOCK: You mean this in the 5 nicest possible way. 6 HONORABLE TRACY CHRISTOPHER: Just say, 7 "with all due respect." 8 MR. MUNZINGER: The problem is that the 9 judge is the person who determines the feasibility, and if 10 the judge is intent that there will be no electronic 11 filings in his or her court, the judge simply states, "I 12 find it's feasible." I have practiced a long time, and I 13 have run into a lot of different judges at different 14 levels from the Federal court to the justice court, and 15 I've found that they're all human and the less discretion 16 that you give them to deprive a pro se litigant of 17 justice, the better for the state. 18 CHAIRMAN BABCOCK: You know, over the years 19 I've noticed you have a rougher practice than most of us. 20 MR. ORSINGER: He's out on the frontier. 21 CHAIRMAN BABCOCK: You're absolutely with 22 this frontier justice. 23 Okay. Yeah, Judge Christopher. 24 HONORABLE TRACY CHRISTOPHER: I have ordered 25 electronic filing in some cases, and I'll just kind of D'Lois Jones, CSR (512) 751-2618 16175 1 tell you what I did and the order that I sent out, and 2 it's not a standing order, but it was -- I basically went 3 through all my new case filings and looked at the type of 4 case and the parties involved, and I automatically 5 excluded anyone that was pro se, because I thought it was 6 too difficult to require a pro se to do electronic filing, 7 and I also for the most part excluded solo practitioners 8 because I felt that they perhaps weren't up to speed on 9 electronic filing also, and so then I sent out an order 10 that says, "You're going to have to electronically file 11 unless you file an objection within ten days." So, you 12 know, I think that you need some of those sort of 13 safeguards in this kind of an order, so I think it's very 14 difficult for pro ses to be, you know, forced to do that, 15 and I think people ought to be able to object to it. 16 CHAIRMAN BABCOCK: Okay. Carlos. 17 MR. LOPEZ: I'm going to stand up because 18 I'm kind of over here in the peanut gallery, but, you 19 know, obviously as a county court I used to do JP appeals, 20 so I would see the litigants that were there, but I 21 wouldn't actually see them while they were in JP court, 22 but earlier as a prosecutor I would cover some JP courts, 23 and so I know that it's somewhat subject to local flavor, 24 but certainly in the Dallas JP courts, I would -- I would 25 urge everybody to think about the fact that most of the D'Lois Jones, CSR (512) 751-2618 16176 1 people in my experience don't have PCs, don't have 2 internet access. It's changing obviously, and maybe five 3 years from now that won't be the case, but I would be 4 vehemently opposed to any system that doesn't contain a 5 complete opt-out for whoever wants to opt out. 6 In other words, I like the idea of there 7 being a structure in place, a predetermined structure that 8 says if we're going to do it, if everybody agrees, then 9 this is what it's going to look like so that you don't 10 have an ad hoc version of electronic filing in each 11 individual case like I used to have when I was on the 12 district court. We had electronic -- much like Judge 13 Christopher, but we did it differently every way. It was 14 just kind of cobbled together by what the parties wanted 15 to do, and I can see why that's not a great idea. I like 16 the idea of having a preset framework so that if the 17 parties opt into it, here's what it looks like, but if 18 they don't opt into it it can't be forced on them, 19 certainly not in JP court. 20 CHAIRMAN BABCOCK: Kent. 21 HONORABLE KENT SULLIVAN: The need to file 22 objections or even opt-outs I think is problematic. The 23 more that you have to do to avoid falling into some trap 24 as a litigant, particularly a pro se litigant, the less 25 user-friendly the court is, and I think that the key D'Lois Jones, CSR (512) 751-2618 16177 1 ingredient, particularly for a JP court, is 2 user-friendliness. 3 CHAIRMAN BABCOCK: Okay. Sarah. 4 HONORABLE SARAH DUNCAN: I completely agree 5 with what's been said, and there's also just the 6 constitutional problem. There are incarcerated civil 7 litigants who don't have necessarily -- Professor Carlson 8 is correcting me that they probably have the best access. 9 Since they have a hard time getting a postmark I find that 10 hard to believe. I just -- I think what Judge 11 Christopher's system is is a good place to start, but I 12 have to say I agree with Judge Sullivan that I'm concerned 13 about putting the burden on a pro se litigant to object 14 and get the grounds that might convince the judge not to 15 order electronic filing, heaven forbid, prevail on appeal 16 to show an abuse of discretion for an e-filing order. 17 CHAIRMAN BABCOCK: Well -- 18 HONORABLE JAN PATTERSON: Don't we agree on 19 this? 20 CHAIRMAN BABCOCK: So if everybody -- what I 21 think, if people think "if feasible" is not strong enough, 22 it sounds like you're moving toward "if the parties 23 agree." Justice Gray. 24 HONORABLE TOM GRAY: I was just going to say 25 to add into the mix that many pro se parties are paupers, D'Lois Jones, CSR (512) 751-2618 16178 1 and I didn't entirely understand or didn't begin to 2 understand how a pauper pays the online fees and the third 3 party service provider fee if they fall into one of these 4 mandatory orders. 5 CHAIRMAN BABCOCK: Yeah. Yeah. Hayes. 6 MR. FULLER: Chip, why would it be important 7 for a justice to be able to order electronic filing in a 8 particular case? If it's optional, it's optional, and, I 9 mean, I can understand that perhaps in district court, but 10 I'm not sure why -- why a justice court would need to 11 order electronic filing in a particular case. 12 HONORABLE TOM LAWRENCE: Well, because this 13 is the rule in county and district court of e-filing, and 14 the clerks that were there -- we had clerks I think from 15 three -- we had Dianne Wilson from Fort Bend County, we 16 had somebody from San Antonio and somebody from Travis 17 County. They argued and some of the judges and attorneys 18 that had dealt with it argued that it was a good thing 19 because it gave the judge the ability to order that and 20 the parties wanted that. They said it's -- that it works 21 out well, that there was no indication of abuse. If you 22 want to take it out, that's fine. It's not -- you know, 23 it's not a problem. It was something that some of the 24 clerks argued would be helpful, but we can take it out. 25 CHAIRMAN BABCOCK: Yeah. D'Lois Jones, CSR (512) 751-2618 16179 1 MR. HARWELL: It seems to me that if you 2 take it out, the "optional" covers your bases with that. 3 And also, are we going to revisit the county and district 4 clerk e-filing rules after we go through this? 5 CHAIRMAN BABCOCK: Not today. 6 MR. HARWELL: No, not today, but I mean, it 7 seems like we're going to have a really good discussion on 8 this, and some things, some parts of those e-filing rules 9 may be able to be upgraded once we go through this 10 process. 11 CHAIRMAN BABCOCK: Yeah. Good point. Well, 12 it seems to me like there's consensus, unless there is a 13 silent majority who really want this language, that it 14 ought to be with the agreement of the parties, the judge 15 can order it but only if the parties agree. 16 PROFESSOR HOFFMAN: Why is it agreement? I 17 mean, I don't -- I hate to distinguish between things that 18 are filed and things that are served. I mean, obviously 19 if we're talking about service, you would want agreement, 20 but if it's just filing, why couldn't that be unilateral 21 so that the option would be if you want to file that way 22 you can, you know, if the other side hasn't opted in 23 you're going to have to serve them the good, old-fashioned 24 way. 25 CHAIRMAN BABCOCK: Well, because I think D'Lois Jones, CSR (512) 751-2618 16180 1 we're talking about 1.2(b) here, which is where the judge 2 orders it, and the way it's written now it looks like the 3 judge can order it just if the judge wants to, and people 4 have suggested that that's not fair in JP court. 5 HONORABLE SARAH DUNCAN: I think, Professor 6 Hoffman, why do they need to order it if the people agree 7 to do it? If we're going to say you can only order it if 8 the parties agree, well, if the parties agree, why do you 9 need an order, because then somebody's computer could be 10 down, they can't e-file that day, and they get held in 11 contempt. You have contempt proceedings because they 12 couldn't -- just let them agree to do it, and they do it. 13 CHAIRMAN BABCOCK: Richard. 14 MR. ORSINGER: I think that the point that 15 was being made is, is that you should always have the 16 right to electronic filing if you want to, and you should 17 only be able to electronic serve by agreement. You 18 wouldn't want to say that a person cannot electronically 19 file unless the opposing party permits it because, what 20 the heck, the system is there, it's a unilateral act, the 21 other side will get a paper copy, and so they need to 22 break the two apart, and it ought to be always e-filing 23 should be available and the dispute is over e-service. 24 MR. WATSON: Correct. 25 HONORABLE SARAH DUNCAN: Good point. D'Lois Jones, CSR (512) 751-2618 16181 1 PROFESSOR HOFFMAN: Correct. 2 CHAIRMAN BABCOCK: Okay. So is the solution 3 to just take (b) out of this? 4 HONORABLE TOM LAWRENCE: Well, I think you 5 would have to take (b) out and then you'd have to take 6 everything in (a) out up to (b), electronic filing. 7 HONORABLE TERRY JENNINGS: You would have to 8 rephrase it somehow. 9 HONORABLE TOM LAWRENCE: Let's see if we've 10 got a rule. 11 CHAIRMAN BABCOCK: Well, is that what people 12 think is the best thing to do? Carl. 13 MR. HAMILTON: Yes. 14 CHAIRMAN BABCOCK: Carl thinks so. Well, 15 then it's unanimous. The great dissenter. 16 HONORABLE SARAH DUNCAN: I'm sorry. Take 17 out everything -- 18 HONORABLE TOM GRAY: It would say, "The 19 electronic filing and service of court documents is wholly 20 optional." Although you could take out some of that 21 language as well. 22 HONORABLE TOM LAWRENCE: Will that work, 23 Jody? 24 HONORABLE SARAH DUNCAN: Don't you take out 25 "and service"? D'Lois Jones, CSR (512) 751-2618 16182 1 MR. HUGHES: Well, service is covered under 2 Rule 5, and maybe Rule 1.2 is a little awkward in the 3 sense that it's purporting to cover both filing and 4 service, but then it really says that the service part is 5 covered under Rule 5, and I think part of the intent on 6 that was to get it up front so that people when they're 7 just looking at the beginning of the rule can at least see 8 where it's covered, but it might make more sense, I think 9 as Richard suggested, to just wholly separate them and 10 say, "Filing is completely optional. Service is covered 11 under Rule 5." 12 CHAIRMAN BABCOCK: Okay. Justice Jennings. 13 HONORABLE TERRY JENNINGS: Would it be 14 possible when someone is filing their papers that there 15 could be a check off point where someone could check off, 16 "I'd like to file my papers electronically," and would 17 that help the clerks maybe? 18 HONORABLE TOM LAWRENCE: Well, if they file 19 it then they've already made that decision when they file 20 it. 21 HONORABLE TERRY JENNINGS: When they file 22 their initial papers. 23 HONORABLE TOM LAWRENCE: Well, we're going 24 to get to the service with the responses a little bit 25 later in the rules. D'Lois Jones, CSR (512) 751-2618 16183 1 HONORABLE TERRY JENNINGS: No, no. I'm not 2 talking about service. If a party wants to file 3 everything they have electronically, can they just when 4 they initially file their suit just have like a document 5 they could check off "I'm going to file everything 6 electronically" and if the other party doesn't do that 7 then, of course, we could talk about service later. 8 HONORABLE TOM LAWRENCE: Well, I mean, I 9 don't think they have to check anything. They just simply 10 file it if they want to do it electronically. 11 HONORABLE TERRY JENNINGS: I'm talking about 12 subsequent documents. 13 HONORABLE TOM LAWRENCE: Well, I mean, I 14 think they would have the ability to file whatever they 15 want to file electronically once the initial suit is filed 16 if they choose to do it. 17 CHAIRMAN BABCOCK: So would it be 18 appropriate in this Rule 1.2 to say, "The electronic 19 filing of court documents is wholly optional"? Does that 20 cause any heartburn for anybody? 21 PROFESSOR HOFFMAN: Just the "wholly." 22 MR. ORSINGER: I just think you ought to say 23 wholly optional with who because if it's wholly optional 24 with the judge then you may be denying to the parties the 25 option, so can we -- I mean, is it necessary to say that D'Lois Jones, CSR (512) 751-2618 16184 1 it's optional with the party, or does everyone understand 2 that that means the party? 3 CHAIRMAN BABCOCK: Well, it means both, 4 doesn't it? 5 MR. ORSINGER: Well, it shouldn't be 6 optional with the judge. The judges ought to be required 7 to accept electronic filing. I think at least -- 8 HONORABLE TOM LAWRENCE: No. 9 HONORABLE SARAH DUNCAN: That was my point 10 initially, and I got shut down. 11 CHAIRMAN BABCOCK: Yeah. 12 MR. ORSINGER: We're not going to -- okay. 13 HONORABLE SARAH DUNCAN: It's an opt-in 14 system. 15 MR. ORSINGER: Well, I know that it's 16 optional as to whether you force everybody to file, but 17 you're saying it's optional whether you allow anybody to 18 file? Okay. I understand now. 19 HONORABLE SARAH DUNCAN: Right. It's an 20 opt-in system by the court. 21 MR. ORSINGER: Okay. 22 HONORABLE NATHAN HECHT: Because of funding. 23 MR. ORSINGER: Then it's not wholly 24 optional, is it? 25 PROFESSOR CARLSON: No. D'Lois Jones, CSR (512) 751-2618 16185 1 MR. ORSINGER: For a litigant. So then we 2 better not say "optional by a party." 3 HONORABLE TERRY JENNINGS: That's what I'm 4 trying to get at, is can a party notify the court "I'd 5 like to do this" and the court says "okay"? 6 CHAIRMAN BABCOCK: Professor Hoffman. 7 PROFESSOR HOFFMAN: Okay, so, first, 8 whatever language -- again, I agree with Jan we should 9 take out the word "wholly." So if it's optional, it's 10 optional. We ought not to make it super double optional, 11 whatever that means. It's a strange word, so that's one. 12 Then what about -- so let me just sort of 13 throw out some language to fix it. I think this gets at 14 what Judge Lawrence was talking about. "Except as 15 provided," so-and-so, "subject to 5.1, where the court 16 allows electronic filing and service to take place," you 17 know, "where permissible by the Court, the electronic 18 filing and service of court documents is optional by the 19 parties." 20 CHAIRMAN BABCOCK: No, Elaine? You don't 21 like that? 22 PROFESSOR CARLSON: Well, I don't think 23 that's what the rules suggest in 1.3 or the discussion we 24 just had about service being upon agreement of the 25 parties. D'Lois Jones, CSR (512) 751-2618 16186 1 CHAIRMAN BABCOCK: Jody. 2 MR. HUGHES: I think that because these 3 rules only apply to, you know -- under 1.1, under "scope," 4 it only applies to the JP courts that accept electronic 5 filing, so I think that it probably should be clarified to 6 say that it's optional on the party's part, but I would be 7 wary about putting in further restrictions that make it 8 sound like a court that already participates in electronic 9 filing can make it optional as to whether a party can 10 file, because once a court has indicated participation, I 11 think that it's wholly -- and I agree with striking 12 "wholly," but I think it should just say in 1.2(a), 13 "optional on the party's part" or something like that, and 14 I think that it's -- because the rules otherwise limit it 15 only to participating courts, I think that solves the 16 issue. 17 CHAIRMAN BABCOCK: Okay. Elaine. 18 PROFESSOR CARLSON: Jody, why doesn't 1.3(a) 19 suffice without 1.2? 20 MR. HUGHES: I think it does with regard to 21 the court accepting, but 1.2 would be clarifying that it 22 is always at a party's option, I guess that they certainly 23 have a right to e-file in a court that participates. 24 CHAIRMAN BABCOCK: Sarah. 25 HONORABLE SARAH DUNCAN: How about if we D'Lois Jones, CSR (512) 751-2618 16187 1 moved -- if we made 1.3, 1.2? 2 CHAIRMAN BABCOCK: Uh-huh. 3 HONORABLE SARAH DUNCAN: And then add a 1.3, 4 "If a judge elects to participate in e-filing pursuant to 5 1.3, any party may e-file any document to be filed in that 6 court," "may e-file any document." 7 CHAIRMAN BABCOCK: Did you catch that, 8 Judge? 9 HONORABLE TOM LAWRENCE: 1.2 is really 10 designed to be for the parties. Maybe it's not as clear. 11 1.3 is supposed to be for the JP courts, so I think 1.2, 12 if we're -- needs to be about the party's ability. 13 HONORABLE SARAH DUNCAN: But first the court 14 has to elect to participate in e-filing. Once that's true 15 then any party may e-file, but unless that's true, no 16 party may e-file. 17 CHAIRMAN BABCOCK: Sarah says you've got the 18 cart before the horse. 1.3 ought to be 1.2, and 1.2 ought 19 to be 1.3. 20 HONORABLE SARAH DUNCAN: Except 1.3 ought 21 not to be in its current form. 22 CHAIRMAN BABCOCK: Well, we'll get to that. 23 By the way, we're going to be here Saturday. 24 PROFESSOR HOFFMAN: Did you say Sunday or 25 did you say Saturday? D'Lois Jones, CSR (512) 751-2618 16188 1 CHAIRMAN BABCOCK: We're sticking at 2 Saturday right now. Richard. 3 MR. ORSINGER: I would suggest this: "In a 4 participating court, any party may electronically file any 5 court document" and then we define a "participating court" 6 as one that has elected to permit electronic filing. "In 7 a participating court any party may electronically file 8 any court document." 9 CHAIRMAN BABCOCK: Okay. Well, it does seem 10 to me to make some sense, Judge Lawrence, to have -- to 11 set it up so that everybody knows that there are going to 12 be certain courts that you can electronically file in it 13 and to start with that, so 1.3 ought to be 1.2, and then 14 you ought to say, "but, by the way, even in those courts 15 where it's allowed or permitted the parties don't have to 16 do it if they don't want to." Sarah, isn't that where 17 you're headed? 18 HONORABLE SARAH DUNCAN: Yeah, but I -- yes. 19 CHAIRMAN BABCOCK: Okay. So structurally 20 that's how we -- 21 HONORABLE SARAH DUNCAN: But what Richard 22 then has done is precisely that, too, and it's just a 23 matter of preference. 24 HONORABLE TOM LAWRENCE: That's fine. I 25 don't have any problem with that. We followed the same D'Lois Jones, CSR (512) 751-2618 16189 1 format as the county and district court, and that's why 2 it's in that order. 3 CHAIRMAN BABCOCK: Well, we'll get to them. 4 HONORABLE JANE BLAND: They're going to 5 start following your format. 6 MR. ORSINGER: By the way, Chip, Jody points 7 out to me we already defined "participating justice of the 8 peace court" to mean a court that has set up a TexasOnline 9 account, so we can use the phrase "participating" -- 10 CHAIRMAN BABCOCK: "Justice of the peace 11 court." 12 MR. ORSINGER: Yeah. 13 CHAIRMAN BABCOCK: Okay. Why don't we go to 14 current 1.3? 15 HONORABLE TOM LAWRENCE: What are we doing 16 with 1.2? Are we coming back to that or -- 17 CHAIRMAN BABCOCK: Well, what I hear is that 18 we're going to revise 1.2 to say basically that filing is 19 optional by the parties. 20 MR. ORSINGER: In a participating court. 21 CHAIRMAN BABCOCK: In a participating court. 22 MR. ORSINGER: I think you ought to make 23 that explicit rather than leave that implicit. 24 CHAIRMAN BABCOCK: In a participating 25 justice of the peace. D'Lois Jones, CSR (512) 751-2618 16190 1 HONORABLE TOM LAWRENCE: When you say "we" 2 does that mean Jody is going to do this after the meeting 3 next week? 4 CHAIRMAN BABCOCK: Yeah. He's furiously 5 writing. 6 HONORABLE TOM LAWRENCE: All right. "1.3, 7 justice of the peace to individually determine 8 participation in electronic filing. (a), Each justice of 9 the peace in Texas may determine whether the court over 10 which the justice of the peace presides will accept 11 electronically filed documents. These rules do not 12 require any individual justice of the peace to accept 13 electronically filed documents. Documents may be 14 electronically filed and served only in those justice of 15 the peace courts that have set up a TexasOnline account to 16 accept electronically filed documents and have notified 17 the county clerk in the county where the justice of the 18 peace court is located that the court participates in 19 electronic filing." 20 So, first of all, the court must decide to 21 allow electronic filing. Secondly, they must set up an 22 account with TexasOnline, which of course, is going to 23 come through the county, the county is going to have to do 24 that, and Mike Griffith is here and DRI to talk about that 25 if there are any questions. And then, furthermore, in D'Lois Jones, CSR (512) 751-2618 16191 1 order for people to be able to figure out which courts are 2 doing it we're going to require the county clerk to 3 maintain a list of those courts that are doing it. Later 4 on in the rules there is a requirement that if you opt out 5 you notify the county clerk, etc., but for right now 6 that's simply the mechanism by which you decide to do it 7 and let everybody know what you're doing. Yes. 8 PROFESSOR HOFFMAN: My thought would be that 9 a lot of that is logistical detail that probably doesn't 10 fit in a rule and that I would just have that first 11 sentence of (a) and drop everything else. 12 HONORABLE TOM LAWRENCE: Well, if you drop 13 everything else then you wouldn't have any mechanism by 14 which someone would know if a court accepts e-filing or 15 not other than by calling an individual court, so we would 16 require that it be on the county clerk's website, if they 17 have a website, that the county clerk maintain a list. 18 PROFESSOR HOFFMAN: I guess, maybe, but that 19 doesn't seem very likely. I mean, I would think that any 20 court that does accept electronic filing, that it's in the 21 clerk's -- it's in everybody's interest to put that on the 22 website and that in any event that, again, sounds like 23 kind of a logistical how do we operationalize this and 24 less like a rule. 25 HONORABLE TOM LAWRENCE: Well, but that's D'Lois Jones, CSR (512) 751-2618 16192 1 what these rules are. I mean, these are the logistics and 2 the nuts and bolts of how it occurs. This is the only set 3 of rules that will be in existence that talk about this, 4 and, you know, again, the county and district court rules 5 are just about as detailed as this, if not more so in some 6 respects. 7 CHAIRMAN BABCOCK: Okay. Any other comments 8 about this? Richard Orsinger. 9 MR. ORSINGER: Yes, sir. On 1.3(a), I see 10 that that concept of file and serve has crept in there 11 also, and I think it would be wise for us to take the "and 12 served" out of there in the fifth line, fourth line, and 13 deal with service in a rule that's entirely related to 14 service because of its optional nature. 15 HONORABLE TOM LAWRENCE: Well, Rule 5 talks 16 about service. We're going to get to that a little bit 17 later. 18 MR. ORSINGER: That's why I'm saying why are 19 you talking about service in Rule 1.3. 20 CHAIRMAN BABCOCK: Well, because 1.3, this 21 rule is just setting up mechanically about which courts 22 are going to allow it at all. 23 HONORABLE TOM LAWRENCE: We're just saying 24 the general scope of these rules, and we're trying to be 25 as general as -- so everybody has a clear understanding. D'Lois Jones, CSR (512) 751-2618 16193 1 That's why that's in there. 2 CHAIRMAN BABCOCK: Sarah. 3 HONORABLE SARAH DUNCAN: If that's all this 4 is designed to do is determine scope then let's just have 5 a section or a subsection or a rule that says "scope of 6 these rules." 7 HONORABLE TOM GRAY: That would be Rule 1.1. 8 HONORABLE SARAH DUNCAN: I thought so. I 9 think the second sentence of (a) is redundant and 10 unnecessary and ought to come out. I think the third 11 sentence ought to be modified somewhat to say -- to follow 12 the first sentence. "If the court elects to participate 13 in e-filing, the court must set up a TexasOnline account," 14 if that sentence -- mechanical, operation sentences is 15 going to stay in. 16 CHAIRMAN BABCOCK: Lamont. 17 MR. JEFFERSON: I was just going to echo 18 Richard's concern. I'm concerned about that "and served" 19 and what that does to -- the Court really doesn't need to 20 get involved in that part of it at this point. I think 21 what they're saying is if something -- I think what we're 22 trying to get at here by the rule is if something is 23 electronically filed, what's the appropriate method for 24 service, but what this seems to say is parties can't agree 25 to serve each other electronically unless it's authorized D'Lois Jones, CSR (512) 751-2618 16194 1 by rule, and I don't think what's what the rule is 2 intended to do. 3 HONORABLE SARAH DUNCAN: Right. Good point. 4 CHAIRMAN BABCOCK: Okay. 5 HONORABLE TOM LAWRENCE: Well, we're trying 6 to give all the pro ses, all the attorneys, and everybody 7 else as much information as possible. 8 CHAIRMAN BABCOCK: Alan wants to say 9 something behind you, Judge. 10 HONORABLE TOM LAWRENCE: Oh, I'm sorry. 11 Excuse me. 12 MR. MARTIN: That's okay. Somebody 13 mentioned logistics a minute ago, and the cooperation of 14 the county is key to the success of this for the JP 15 courts. My understanding is the budget for JP courts and 16 many other things and the flow of any fees that would 17 support those JP courts and the county that we would pass 18 that would allow them to collect an additional $2 or 19 whatever it is to cover their costs for electronic filing 20 has to go through the county, so there needs to be some 21 kind of language in there that ties that JP court to their 22 county to make this thing work right. So, you know, 23 again, you-all can finesse the language, but the county 24 component in there is going to have to be a necessity, the 25 way we look at it. D'Lois Jones, CSR (512) 751-2618 16195 1 CHAIRMAN BABCOCK: Sarah. 2 HONORABLE SARAH DUNCAN: So if I want to 3 e-serve someone I have to go through TexasOnline? 4 MR. HUGHES: No. 5 HONORABLE TRACY CHRISTOPHER: No. 6 HONORABLE SARAH DUNCAN: No. 7 MR. HUGHES: Although that was something 8 that the group, that the task force debated, and that -- 9 and I think Richard's point about "and served" may be a 10 vestige of that original writing that it had to go through 11 TexasOnline. The group talked about it and then decided 12 the parties ought to be able to agree just to send it my 13 e-mail to yours directly, although there is -- 14 HONORABLE SARAH DUNCAN: Without cost. 15 MR. HUGHES: Without cost, although there 16 are some issues about that that we'll get to, but I think 17 that for simplicity it might be better to take out "and 18 served" in 1.3(a) just because service is dealt with 19 elsewhere, and, I mean, but there is a policy question 20 here of do we want this rule to restrict the ability of 21 parties even in JP courts that aren't participating to be 22 able to e-serve with each other by agreement? 23 CHAIRMAN BABCOCK: Sarah. 24 MR. ORSINGER: The answer to that was "of 25 course not." D'Lois Jones, CSR (512) 751-2618 16196 1 HONORABLE SARAH DUNCAN: I'm sorry, Richard, 2 what did you say? 3 MR. HUGHES: Then maybe -- 4 MR. ORSINGER: Of course we don't want to 5 preclude people from serving each other by consent outside 6 the e-filing system. 7 HONORABLE SARAH DUNCAN: Right. 8 MR. HUGHES: Because it's not otherwise 9 covered under 21a, and so but I think if we leave -- 10 again, I think this is your point, if we -- that language 11 right now would preclude it, so I would suggest we take it 12 out and deal with service in 5.1. 13 CHAIRMAN BABCOCK: Sarah. 14 HONORABLE SARAH DUNCAN: I would suggest 15 that the title of this 1.3 should just be "Electronic 16 filing by election of the court and parties" or something 17 like that. It shouldn't have anything to do with service. 18 CHAIRMAN BABCOCK: The heading on 1.3 is 19 limited to filing. 20 HONORABLE SARAH DUNCAN: The heading of 1.3 21 right now says "Electronic filing and service optional 22 unless ordered by court." 23 CHAIRMAN BABCOCK: On 1.3? 24 HONORABLE SARAH DUNCAN: Oh, I'm sorry. 25 CHAIRMAN BABCOCK: That's 2. D'Lois Jones, CSR (512) 751-2618 16197 1 HONORABLE SARAH DUNCAN: That's 1.2. Okay. 2 Sorry. 3 HONORABLE TOM LAWRENCE: The captions on 4 these different parts was, again, taken from the county 5 and district court rules in an attempt to try to make 6 these as consistent as possible with those, so it would 7 not be too confusing for attorneys or parties that file in 8 all three levels, so that's why we -- that's really where 9 these captions come from. 10 HONORABLE SARAH DUNCAN: I've missed a few 11 meetings, I know. Have we voted on adoption of statewide 12 county and district court e-filing rules? 13 HONORABLE NATHAN HECHT: No. 14 CHAIRMAN BABCOCK: No. 15 HONORABLE SARAH DUNCAN: Then I'm not in 16 favor of patterning these rules -- 17 HONORABLE NATHAN HECHT: Well, but we have 18 the pattern in 27 counties? 19 MR. HUGHES: More than that. 29 or 30. 20 HONORABLE NATHAN HECHT: So most -- I think 21 which covers like 80 percent of the litigation in the 22 state or something. 23 MR. HUGHES: All the big counties. 24 HONORABLE NATHAN HECHT: All the big 25 counties are using the pattern rules at this point. D'Lois Jones, CSR (512) 751-2618 16198 1 HONORABLE SARAH DUNCAN: Okay. 2 CHAIRMAN BABCOCK: Richard. 3 MR. ORSINGER: Are we limited to just 4 paragraph (a) or can we talk about (b) also? 5 CHAIRMAN BABCOCK: Well, I think everybody 6 seems to think that taking service out of (a) is a good 7 idea. Anything else about (a)? And then we can talk 8 about (b). Professor Dorsaneo. 9 PROFESSOR DORSANEO: I had a question based 10 upon what was just said to Judge Christopher, who 11 apparently carefully reworked the rules for her court. Is 12 everybody doing that? Do we have any information about 13 what other judges are doing? 14 HONORABLE TOM LAWRENCE: With regard to 15 ordering e-filing in their courts? 16 PROFESSOR DORSANEO: Pro se people, etc. I 17 mean, do we have any -- is this working well in 27, 28, 30 18 counties? 19 MR. ORSINGER: You're talking at the 20 district level, he's talking at the JP level. 21 PROFESSOR DORSANEO: Yeah. 22 HONORABLE TOM LAWRENCE: Well, we had -- the 23 district clerks that were there indicated that it was 24 working pretty well, Travis County and -- you might 25 contradict that, but Travis County, Bexar County. D'Lois Jones, CSR (512) 751-2618 16199 1 HONORABLE STEPHEN YELENOSKY: I'm happy to 2 contradict whatever you want me to. 3 CHAIRMAN BABCOCK: That's his role in this 4 meeting. 5 HONORABLE TOM LAWRENCE: They all said it 6 was working. Bonnie, you had it in Williamson County? 7 MS. WOLBRUECK: No, we did not do it in 8 Williamson County. 9 HONORABLE TOM LAWRENCE: Oh, you don't have 10 it? I don't think that there are any significant 11 problems. There is some modifications. There is the 12 template, which is the statewide rule, but in the county 13 and district courts there is a mechanism that you can 14 through the local rules process amend that and change it 15 slightly, but Rule 3(a) doesn't apply to JP courts. So 16 except for Harris County, which has legislative authority, 17 no other JP courts in the State of Texas can promulgate 18 local rules, so we had to figure out a different way to do 19 this that didn't go through the local rule process. Also, 20 these rules are not in the Rules of Civil Procedure. 21 Now, Peter Vogel, who is the head of the 22 JCIT committee, thinks that they ought to be -- thinks the 23 county and district court rules and these rules ought to 24 be somewhere in the Rules of Civil Procedure, but I'm sure 25 that's something the Court will look at later, but these D'Lois Jones, CSR (512) 751-2618 16200 1 are currently on the JCIT website, and I presume -- I 2 don't know what the Court's going to do with these, but I 3 presume these are going to be there also or maybe they're 4 going to be somewhere else. I don't know. 5 CHAIRMAN BABCOCK: Justice Hecht. 6 HONORABLE NATHAN HECHT: You know, just 7 maybe we need to recap just a second that a few courts 8 started using electronic filing about 10 or 12, 15 years 9 ago, mostly in Beaumont. 10 MR. LOW: Yeah. 11 HONORABLE NATHAN HECHT: Judge Mahaffy, but 12 elsewhere in Montgomery County and some other places, and 13 so then the state wanted to move in that direction more 14 generally and that involved TexasOnline, and this 15 committee adopted the template for county and district 16 court procedures for electronic filing after it was 17 proposed by the Office of Court Administration, and we 18 talked about it a couple of times. No? 19 MR. HUGHES: This predated me, but -- 20 HONORABLE NATHAN HECHT: Anyway, and then it 21 has been implemented in these various counties, and 22 Professor Dorsaneo asked whether it's working well. Well, 23 it's hard to know what well means. It seems to be working 24 largely without complaint, but the idea, the hope of JCIT 25 and TexasOnline, of course, which is helping facilitate D'Lois Jones, CSR (512) 751-2618 16201 1 all of this, is that we will move the bar in this 2 direction more forcefully as time passes, so that just as 3 the Federal courts are going to e-filing, we, too, will 4 migrate in that direction, not in a way that keeps these 5 courts or others from being user-friendly or anything like 6 that, but we need to sort of get everybody thinking about 7 this being a way of -- principal way of filing and serving 8 papers in the future. 9 But we're a ways off from that, and we have 10 hesitated in asking this committee to think about 11 statewide rules that would be more or less mandatory, just 12 because we're sort of waiting for the culture to develop, 13 if you will, that this is a good idea and this is the way 14 it works and we're okay with that. 15 HONORABLE TOM LAWRENCE: We have Mike 16 Griffith here from TexasOnline who might be able to 17 respond to that. 18 MR. GRIFFITH: Just about the question about 19 how our mandate's working, we had -- Judge Christopher 20 noted she has certain case types, selected cases that she 21 has mandated in. In Hidalgo County the multi-district 22 litigation case for the Hurricane Rita bus fire, that was 23 mandated as electronic filing/electronic service case, and 24 within Travis County there is a pilot ongoing right now 25 with the Travis district courts civil cases, hand-selected D'Lois Jones, CSR (512) 751-2618 16202 1 case types that they require electronic filing and 2 electronic service in. That's as far as I know the extent 3 of what we have right now within Texas. 4 CHAIRMAN BABCOCK: Sarah. 5 HONORABLE SARAH DUNCAN: Judge Christopher, 6 do the people in your cases that have to do the e-filing 7 or get to do e-filing, do they do it through TexasOnline? 8 HONORABLE TRACY CHRISTOPHER: Yes. 9 HONORABLE NATHAN HECHT: You have to do it 10 through TexasOnline. 11 HONORABLE TRACY CHRISTOPHER: You have to do 12 it through TexasOnline by the rules that we've adopted, 13 that the Supreme Court said we had to adopt. 14 HONORABLE NATHAN HECHT: That's the 15 interface between -- it's not just us. I mean, it's 16 the -- 17 HONORABLE TOM LAWRENCE: That's the 18 Legislature. 19 HONORABLE NATHAN HECHT: That's the 20 interface that the State itself has set up to facilitate 21 this. So it's an arrangement that -- between TexasOnline 22 and the State, too. 23 CHAIRMAN BABCOCK: Andy. 24 MR. HARWELL: And if I remember the 25 discussion we had several years ago, that was for the D'Lois Jones, CSR (512) 751-2618 16203 1 uniformity -- 2 MR. ORSINGER: Yeah. 3 MR. HARWELL: -- part of it. Now, in 4 McClennan County we offer electronic filing on our land 5 records, and we don't have anyone that we go through with 6 that. Title companies can sign up and work with us on 7 that. I do not have it on our court site just yet, but I 8 was curious about that same issue, if you have the -- what 9 is it called -- electronic service provider and you have 10 all of these rules and you have fees at different levels 11 as it meets -- goes to different levels, then why -- and 12 with all respect, why is there a middle man involved? 13 With TexasOnline. 14 HONORABLE TOM LAWRENCE: I think Mike can 15 probably answer that. 16 MR. GRIFFITH: The system of TexasOnline 17 e-filing system was set up really by the JCIT a few years 18 ago. They wanted to use TexasOnline, but they also 19 wanted, based upon some previous experiences in Texas, to 20 not tell attorneys which service provider they had to file 21 through, so that's why they created a tier of service 22 providers, and it would be a competitive market that the 23 attorneys could then shop it around and get whatever 24 services they required. That's how the framework was 25 created. D'Lois Jones, CSR (512) 751-2618 16204 1 CHAIRMAN BABCOCK: Sarah. 2 HONORABLE SARAH DUNCAN: Well, this is just 3 my ignorance. Judge Christopher, why does my assistant 4 keep talking about filing through Lexis/Nexis if what he's 5 really going through is TexasOnline? Does he have to go 6 to Lexis/Nexis before he gets to TexasOnline or 7 TexasOnline before he gets to Lexis/Nexis? 8 MR. ORSINGER: Lexis/Nexis is your ESP. 9 HONORABLE TOM LAWRENCE: That's the service 10 provider. 11 MR. ORSINGER: It's your ESP. 12 HONORABLE TOM LAWRENCE: The service 13 provider files it with TexasOnline. 14 MR. ORSINGER: Every ESP has to go to 15 TexasOnline. You chose Lexis/Nexis as your ESP. I don't 16 have Lexis/Nexis as my ESP, but I still have to connect to 17 TexasOnline. 18 HONORABLE SARAH DUNCAN: Why do I need an 19 ESP to get to TexasOnline? 20 MR. ORSINGER: Because TexasOnline is a 21 government agency that receives electronic filings for all 22 of the courts in Texas. It's not a service that provides 23 a format for you to send documents that then get put into 24 uniform condition to file with the state, so you may be 25 sending Word Perfect documents, you may be sending Word D'Lois Jones, CSR (512) 751-2618 16205 1 documents, he may be sending PDF files. 2 HONORABLE NATHAN HECHT: We don't want 254 3 counties to have to set up systems to -- 4 HONORABLE SARAH DUNCAN: Standardize. 5 HONORABLE NATHAN HECHT: To either -- that 6 will force the lawyers to use it one way or else or to 7 accept whatever gets sent in. So they have -- TexasOnline 8 provides them the information, and they -- so they only 9 have to go about it one way. The lawyers can pick anybody 10 they want to to send the information -- 11 HONORABLE SARAH DUNCAN: I see. 12 HONORABLE NATHAN HECHT: -- and then it's up 13 to TexasOnline and the service provider to work out the 14 details about how to get it. 15 HONORABLE SARAH DUNCAN: But there's a fee 16 at both ends; is that right? 17 HONORABLE NATHAN HECHT: Well, I don't know. 18 I guess there is probably. 19 MR. ORSINGER: There is. 20 HONORABLE SARAH DUNCAN: I'm just thinking 21 about the cost of this. 22 MR. ORSINGER: There is no way to eliminate 23 that cost, Sarah, because every district and county clerk 24 had their own computer system and was unwilling to change 25 to any other computer system. So in my personal opinion D'Lois Jones, CSR (512) 751-2618 16206 1 -- and I was on the committee in a liaison capacity -- the 2 Legislature made a decision that everybody is going to 3 have to conform to one standard, and that's TexasOnline. 4 Now then, how do you connect to TexasOnline? 5 Are we going to force everyone in Texas to subscribe to 6 the state agency? No. We're going to let private 7 providers connect you to the state agency. 8 HONORABLE SARAH DUNCAN: Gotcha. 9 MR. ORSINGER: And there is no way to avoid 10 that money because this has to be a self-funding effort. 11 The Legislature wasn't willing to throw very many millions 12 of dollars at this project. Do you agree with that? 13 HONORABLE NATHAN HECHT: Yes. 14 CHAIRMAN BABCOCK: Carlos had his hand up 15 and then Judge Christopher and then -- 16 MR. LOPEZ: Just a comment on what Sarah was 17 saying. Lexis is like one of your -- you can choose any 18 different kind of courier to take the courthouse. Lexis 19 is the electronic courier that you chose and then 20 TexasOnline is the actual electronic clerk, so I don't 21 know how you get rid of the fees. 22 CHAIRMAN BABCOCK: Judge Christopher. 23 HONORABLE TRACY CHRISTOPHER: Well, I was 24 just going to say that I was initially skeptical of the 25 fees also, but for most cases that use it on a regular D'Lois Jones, CSR (512) 751-2618 16207 1 basis, they believe that it saves them money in terms of 2 certified mail, copy costs, service costs. 3 HONORABLE SARAH DUNCAN: And I have no doubt 4 about that. That was part of my concern about mandating 5 it, a judge being able to mandate it -- 6 HONORABLE TRACY CHRISTOPHER: Right. 7 HONORABLE SARAH DUNCAN: -- in a smaller 8 case. If I'm going to be my own courier in a small case 9 and I'm going to take it and get the signature, as a pro 10 se, it could be pretty much cost-free, but we're out of 11 that. 12 CHAIRMAN BABCOCK: Alan. 13 MR. MARTIN: The problem we have here for 14 this whole system is how do we provide a standard system 15 for the state and still give the the attorneys and all the 16 other parties that are -- to litigation the flexibility to 17 provide their documents however they want to, so -- and 18 the keyword that you said up there just a moment ago was 19 "self-funded." The only reason that there's fees involved 20 with this is that that's what funds e-filing and part of 21 TexasOnline. We try to keep those fees very, very small 22 so that these attorneys and the courts can enjoy some 23 savings over what would be normal courier costs and things 24 like that. 25 So how do you put out a standard without D'Lois Jones, CSR (512) 751-2618 16208 1 forcing people through a, you know, smaller funnel than 2 we're already forcing them through? That's the reason we 3 left the EFSPs outside for the competition, because there 4 is always a sensitivity for all the things that the state 5 does whenever we start limiting the way people can do 6 business, and we just don't like to do that if we don't 7 have to. So we can say, yeah, let's give a standard to 8 the state, let's provide a fixed way that the state and 9 the courts can enjoy getting electronic filing but not 10 limit the competition or the availability of people to 11 provide other services to you along the lines of EFSP. 12 They may be providing you other services that are outside 13 the actual filing itself. 14 CHAIRMAN BABCOCK: Judge Lawrence. 15 HONORABLE TOM LAWRENCE: The Legislature set 16 up the Department of Information Resources to control all 17 of this. They supervise TexasOnline. There is a 18 mechanism in effect for the filing of these documents, and 19 we can't change that. Our rules have to conform with 20 that, so some of what is in these rules can't be changed, 21 if we want to have e-filing, just as the county and 22 district court rules have to comply with that. So, you 23 know, we have had to write this in such a way that it 24 conforms to the existing set of filing parameters that the 25 Legislature and DIR has set up and TexasOnline has set up, D'Lois Jones, CSR (512) 751-2618 16209 1 so we -- you know, we have tried to comply with those so 2 the system is going to work. 3 CHAIRMAN BABCOCK: With that in mind, are 4 there any comments on 1.3(b)? Richard. 5 MR. ORSINGER: I'll note that in the first 6 line it says that "the county clerk must" and then down 7 five lines, "the justice of the peace must continue" and 8 then on the next page, second line, "the county clerk must 9 promptly update," but then the last sentence says, "Each 10 justice of the peace statewide is responsible for 11 notifying." First of all, I think each justice of the 12 peace is statewide, so we don't need the word, and 13 secondly, I don't like this kind of vague responsibility 14 of being responsible for something when everybody else 15 must do something. So I don't know if this was a special 16 delicate way to place a requirement on a judge, but I 17 think we ought to just say, "Each justice of the peace 18 must notify the county clerk." 19 CHAIRMAN BABCOCK: Judge Lawrence, did you 20 follow that? 21 HONORABLE TOM LAWRENCE: Yeah. Well, that's 22 fine. I guess we were trying to be polite. 23 MR. ORSINGER: Well, if the county clerks 24 can handle it, certainly the judges can handle it. 25 HONORABLE TOM LAWRENCE: I don't know. D'Lois Jones, CSR (512) 751-2618 16210 1 MR. ORSINGER: Telling them that they "must" 2 do something. 3 HONORABLE TOM LAWRENCE: Well, that's fine, 4 if you want to change it to "must." 5 MR. ORSINGER: I just think it's a little 6 vague, and it's peculiar that all of these other 7 responsibilities are must do responsibilities and then 8 suddenly the key one is somebody is responsible to do 9 something. 10 CHAIRMAN BABCOCK: So you want to change "is 11 responsible for" to "must"? 12 MR. ORSINGER: Yeah. 13 CHAIRMAN BABCOCK: "Must notify"? 14 MR. ORSINGER: Yeah. 15 CHAIRMAN BABCOCK: Jody. 16 MR. HUGHES: The reason that's in there -- 17 and I am probably responsible for the poor language -- is 18 that it is "must" in the sense that it says that the JP 19 has to keep accepting e-filings until they notify the 20 clerk and TexasOnline that they're out of it, not 21 participating, and the reason for the "responsible for" 22 was not trying to soft-pedal it or be polite as much as it 23 was simply to clarify is -- and I think it's pretty clear 24 in the preceding sentence, but it is to make it doubly 25 clear that it is up to the court, it's the court's D'Lois Jones, CSR (512) 751-2618 16211 1 responsibility, to sever that tie and just to avoid the 2 situation where somebody goes in to e-file a document and 3 the court says, "Well, you know, I decided I wasn't going 4 to accept e-filing anymore and so your document is not 5 properly filed" and then they get into a debate where the 6 judge says, "Well, I told so-and-so I wasn't going to do 7 it anymore" and there was just some lack of clarity as to 8 exactly when the judge stopped participating in e-filing, 9 and the only purpose was to clarify it's up to the JP to 10 do it and to make it clear when it's done. 11 CHAIRMAN BABCOCK: Professor Hoffman. 12 PROFESSOR HOFFMAN: I didn't really like 13 this sentence the first time I saw it, but I'm not seeing 14 it again. I guess I don't get why we need it in two 15 places. The last part of the last sentence of (a) already 16 says that the JP courts that want to do this have to 17 notify the clerk. If you want to address your particular 18 last point, Jody, about, you know, if you're -- when 19 you're going to stop doing it you have to tell them that, 20 too, I would just incorporate that into that sentence, if 21 we're going to keep it. So, in other words, it seems like 22 we already said it and now we've said it again. 23 CHAIRMAN BABCOCK: Richard Munzinger. 24 MR. MUNZINGER: If I am a litigant who has 25 relied on the justice of the peace court's past acceptance D'Lois Jones, CSR (512) 751-2618 16212 1 of electronic filing and the justice of the peace then 2 unilaterally determines that it will no longer accept 3 electronic filing and gives that notice, there seems to be 4 no time limit that would notify the litigant that that 5 decision has been made, and I don't know -- I don't 6 practice in the justice court, but are there filings that 7 are time-sensitive that have cut-offs so that a litigant 8 can be deprived of the right to timely file something that 9 must be timely filed by the decision of the justice court 10 to opt out of the program without notice to those who have 11 used it in the past? That may be a potential problem. I 12 don't know. 13 CHAIRMAN BABCOCK: Judge Lawrence. 14 HONORABLE TOM LAWRENCE: Well, I would think 15 that typically this is going to come up when somebody has 16 gone out of office and a new judge has come in and the new 17 judge decides they either want to stop doing electronic 18 filing or they want to begin doing it. I don't -- no JP 19 on the committee anticipated that anything was going to be 20 done so quickly that it would cut things off. There would 21 have to be some type of a deadline given, I would assume. 22 We didn't anticipate this as being a problem. I guess it 23 could theoretically come up. 24 CHAIRMAN BABCOCK: Okay. Is everybody in 25 favor of changing "is responsible for notifying" to "must D'Lois Jones, CSR (512) 751-2618 16213 1 notify"? Any controversy about that? 2 MR. ORSINGER: There is a strong argument 3 can be made that that sentence does the same thing as the 4 last sentence in subpart (a) and that maybe in (a) you 5 ought to just add on there the concept of changing your 6 status. 7 CHAIRMAN BABCOCK: Okay. What else? Yeah, 8 Justice Gray. 9 HONORABLE TOM GRAY: I was just sitting here 10 working on some language to replace that last sentence 11 that can convey only the concept that Richard just 12 referred to, something along the lines, "A JP court cannot 13 refuse an electronic filing until 30 days after the county 14 clerk has been provided written notice that the JP court 15 no longer accepts electronic filing." 16 CHAIRMAN BABCOCK: Do you have to notify the 17 parties, too? 18 HONORABLE TOM GRAY: I would hope that you 19 would not have to do that individually, but -- 20 MR. ORSINGER: Have them send an e-mail to 21 all of them. 22 CHAIRMAN BABCOCK: Okay. Andy. 23 MR. HARWELL: It talks about in here 24 notifying the county clerk, and the point I want to make 25 is if -- are we to keep a notice or an official type D'Lois Jones, CSR (512) 751-2618 16214 1 record? I think it might be something that we might want 2 to look at changing from county clerk to commissioners 3 court. 4 HONORABLE TOM GRAY: Spoken like a true 5 county clerk. 6 MR. HARWELL: Well, I mean, no, because if 7 it's filed through commissioners court it would be then in 8 the court records, which in effect is in our -- I keep the 9 commissioners court records. Also, the timeliness of it, 10 aren't the JP fees addressed each year -- 11 HONORABLE TOM LAWRENCE: Yeah, each two 12 years. 13 MR. HARWELL: -- through the commissioners 14 court? 15 HONORABLE TOM LAWRENCE: Well, most of them 16 are addressed by Legislature. Some on occasion the 17 commissioners court can change a fee, but usually it's 18 legislatively mandated. 19 MR. HARWELL: Well, and the only point I 20 would make there is if there was a timing issue with when 21 the JP court decided to drop the electronic filing, that 22 it can be done at a time when everybody might anticipate 23 that that could happen each year, but then you might have 24 a problem with computer -- their computers may be having 25 problems or something and they don't want to deal with D'Lois Jones, CSR (512) 751-2618 16215 1 their vendor anymore or what have you. 2 HONORABLE TOM LAWRENCE: Well, but the court 3 costs that the court gets is going to be the same 4 regardless of whether something is handed over the counter 5 or mailed or filed electronically. The court is going to 6 get the same money. The convenience fee and the fee that 7 the service provider, TexasOnline, would charge, of 8 course, that wouldn't be there if it was not 9 charged electronically -- filed electronically. 10 MR. HARWELL: Well, I'm just talking about 11 the timing of when the JP court might decide that they 12 would want to cease taking documents electronically and 13 that that may be better handled through commissioners 14 court, and then it would be an official action then that 15 we would have on record in our files. I just don't know. 16 This just references that the county clerk will be 17 notified, and where am I going to -- where am I going to 18 keep that record? So if you tie it through commissioners 19 court it would be an official court -- an official 20 document. That's the only point I want to make. 21 MR. ORSINGER: 1.3(b) requires you to 22 maintain that in the clerk's office and to also -- if you 23 have a website, to put it on your website. The start of 24 (b) makes the county clerk maintain that. 25 MR. HARWELL: Right, but where will I D'Lois Jones, CSR (512) 751-2618 16216 1 maintain it as? 2 MR. ORSINGER: I don't know, but you're 3 going to need to eliminate the first sentence of (b) if 4 you want to push this off on the commissioners court. 5 MR. HARWELL: Well, and I don't want to push 6 it off on the commissioners court. I'm just saying that 7 if it went through commissioners court it would be an 8 action that would be kept in our commissioners court 9 minutes in our office. 10 MR. HUGHES: But do they have websites? 11 MR. HARWELL: Ours has a website. 12 MR. HUGHES: Your commissioners court does? 13 MR. HARWELL: Yeah. I mean, our county has 14 a website. 15 MR. HUGHES: But that's why we didn't -- I 16 mean, do county clerks have separate websites or is it 17 usually just the county? 18 MR. HARWELL: They can. 19 MR. HUGHES: Yeah. 20 CHAIRMAN BABCOCK: A lot of them do. 21 MR. HARWELL: And if you do it through 22 commissioners court it would be a record in our office. 23 Otherwise I would just have a notice of a list of JPs that 24 would qualify? 25 CHAIRMAN BABCOCK: Alan had his hand up and D'Lois Jones, CSR (512) 751-2618 16217 1 then Judge Christopher. 2 MR. MARTIN: The language needs to say when 3 they opt in and opt out, whether you put it in one clause 4 or two or whatever doesn't matter, but if a JP court were 5 to notify us, we could turn off their ability for people 6 to file with them in a heartbeat. The problem is, is 7 there may be people in between there like you're alluding 8 to that need to know that that's happened, and the reason 9 we kind of prefer it to go through the county is because 10 then the county at least knows and they're notifying us. 11 We've already had situations where we've 12 been queried on a day of record as to when something was 13 filed by attorneys that are not part of e-filing because 14 of a court case, and I could see in the future where we 15 might have a situation where a JP might say, "I'm not 16 going to use this anymore" but doesn't notify anybody but 17 us, we turn it off, and then, of course, somebody else 18 that's involved in the litigation didn't get some sort of 19 notice. 20 So, you know, establishing that chain of 21 notification, whether -- and to figure out how the county 22 or the JP court might notify litigants is really in 23 you-all's court, but as a program we would like to know 24 that at least the chain that we operate through, JP 25 courts, counties and whatever, that those are at least D'Lois Jones, CSR (512) 751-2618 16218 1 notified. So that's important to us that the counties are 2 a part of that equation. 3 CHAIRMAN BABCOCK: Judge Christopher. 4 HONORABLE TOM LAWRENCE: The county court 5 was the obvious -- county clerk was the obvious place for 6 something like this to be filed, but nobody wanted to 7 dictate to the county clerk how they do it or where they 8 keep it and because that will probably be different from 9 county to county. We had a county clerk on our committee 10 that met and didn't seem to have a problem with that, 11 so -- but I don't know if the Court can dictate to the 12 county clerk how to do this, but we're hoping that the 13 county clerks will cooperate and maintain some type of 14 list for us. 15 MR. HARWELL: I think that they will. I 16 just think that the best mechanism to have it in the 17 county clerk's office is through the commissioners court. 18 HONORABLE TOM LAWRENCE: Well, then you're 19 adding another difficult part to that equation when you do 20 that. 21 CHAIRMAN BABCOCK: Carl. I'm sorry, Judge 22 Christopher had her hand up earlier. 23 HONORABLE TRACY CHRISTOPHER: Can I ask a 24 very dumb question? Why if the county has spent the 25 resources to -- and worked with the JP to get the D'Lois Jones, CSR (512) 751-2618 16219 1 electronic filing system set up in their county why would 2 we ever let a JP say, "I don't want to do it anymore"? 3 HONORABLE TOM GRAY: Elected officials. 4 HONORABLE TRACY CHRISTOPHER: I mean, I as a 5 district court judge don't really have control over how 6 the court clerk keeps my records. So why should a JP 7 suddenly be able to change his or her mind once they've 8 opted into the system? I'm just asking. Why? 9 HONORABLE TOM LAWRENCE: Well, because the 10 JP doesn't have a county or district clerk. The JP has 11 their employees that function as clerks. In some cases 12 the JP does not have any employees. They are it. It is a 13 one person office. 14 HONORABLE TRACY CHRISTOPHER: Well, who 15 keeps the records? 16 HONORABLE TOM LAWRENCE: The JP does, and if 17 they're fortunate enough to have -- 18 HONORABLE TRACY CHRISTOPHER: Then why do 19 you have to go through the county clerk in this 20 procedure -- 21 HONORABLE TOM LAWRENCE: Someone has -- 22 HONORABLE TRACY CHRISTOPHER: -- if the JP 23 is keeping the records? 24 HONORABLE TOM LAWRENCE: Someone has to set 25 up the account with TexasOnline. Someone has to pay for D'Lois Jones, CSR (512) 751-2618 16220 1 the infrastructure to allow this filing, this electronic 2 filing. 3 HONORABLE TRACY CHRISTOPHER: Okay. So the 4 county has paid for it -- 5 HONORABLE TOM LAWRENCE: Right. 6 HONORABLE TRACY CHRISTOPHER: -- for the JP, 7 so why would we let the JP opt out at that point? 8 HONORABLE TOM LAWRENCE: Because the JP is 9 an independently elected official, and by what mechanism 10 would you tell that JP how to run his office and under 11 what authority? 12 HONORABLE SARAH DUNCAN: The same way we 13 tell the Supreme -- the Supreme Court of Texas tells the 14 Supreme Court of Texas how it's going to process a 15 petition. I mean, what we're talking about are rules, and 16 judges are governed -- Judge Christopher, Judge Bland, 17 they're governed by rules, and that's what we're talking 18 about, is are we going to have a rule that governs JPs. 19 They are no more independently elected than Justice Hecht, 20 so I just don't see that as an issue here. 21 I agree with Judge Christopher, and I would 22 also say I don't think the point here is to notify the 23 county clerk. The point is to notify the party who wants 24 to file something tonight at 11:00 o'clock and there's a 25 deadline at midnight. That's the point. And if the D'Lois Jones, CSR (512) 751-2618 16221 1 county clerk -- if the JP wants to discontinue e-filing in 2 his or her court, they can damn well send notice to every 3 litigant in every case in their court that's used 4 e-filing, in my opinion. 5 CHAIRMAN BABCOCK: Richard Munzinger. 6 HONORABLE TOM GRAY: No, you can't limit it 7 to just those who have used it. You would have to do it 8 to every litigant. 9 HONORABLE SARAH DUNCAN: That's fine. I 10 think that's a great idea, Chief Justice Gray. 11 CHAIRMAN BABCOCK: Richard. 12 MR. MUNZINGER: Well, unless I'm wrong, a 13 justice of the peace isn't told by the state where his or 14 her court will be held. I have been in JP courts that 15 have been in the living room of the judge, and so the 16 judge today is Judge Munzinger and he likes to hold court 17 in his living room because he doesn't have to put anything 18 on but his pajamas and a bathrobe, and tomorrow the judge 19 is a different judge who doesn't want to spend the money 20 on a computer and says, "To heck with that, I don't know 21 how to run computers." We've got 254 counties and God 22 knows how many JPs -- 23 CHAIRMAN BABCOCK: 835. 24 MR. MUNZINGER: -- and how many of them know 25 how to use a computer or -- D'Lois Jones, CSR (512) 751-2618 16222 1 HONORABLE NATHAN HECHT: But I'm not God. 2 MR. MUNZINGER: So on Monday you've got a JP 3 that used one. On Tuesday you don't have and you have a 4 rule that says you have to have. I don't think it's a 5 rule -- if you were to make it mandatory that once a court 6 does it it must always do it, I don't think that that is 7 an enforceable rule given the realities of the state. 8 CHAIRMAN BABCOCK: Carl. 9 MR. HAMILTON: If a litigant files, e-files, 10 or tries to e-file something and the JP has said, "I don't 11 want to accept it anymore" -- 12 CHAIRMAN BABCOCK: Right. 13 MR. HAMILTON: -- is there something going 14 to come up on the computer that says, "This can't be 15 filed," or how do we know that it's not going to be filed? 16 HONORABLE TOM LAWRENCE: Well, I'm assuming 17 that the court would have told TexasOnline to turn it off, 18 so it wouldn't go through. It's a practical matter. 19 MR. ORSINGER: How do you know it didn't go 20 through is Carl's question. 21 MR. MARTIN: Well, they would never get the 22 file. Once we turn off that JP or district clerk or 23 county clerk or whatever, the person that goes in to try 24 to file it, it's going to be rejected. 25 MR. ORSINGER: And you don't know why. You D'Lois Jones, CSR (512) 751-2618 16223 1 don't know why. You're going through an electronic 2 service provider -- 3 MR. MARTIN: Right. 4 MR. ORSINGER: -- and you can't get it 5 through, so you try it again, you try it again. You try 6 it for 30 minutes, you try it for an hour and a half, and 7 you're never told that the court has cut you off, so 8 you're calling your computer IT guy to run over on an 9 emergency basis to find out what's wrong with your 10 computer. Right? That's the way it works? 11 MR. MARTIN: Well, yes, basically, but the 12 EFSP knows that we can't accept it with the filer that -- 13 with the court it's being filed with. So, again, the same 14 concern I raised earlier is that we need to -- the process 15 of notifying all the different people that somebody is no 16 longer accepting filing, we can turn it off, but we don't 17 necessarily have the visibility into who all is notified, 18 with the exception of the county. So, you know, there is 19 no other people we can notify. It's really at a lower 20 level that you-all have the visibility and all the 21 different people that might be involved in a case. 22 CHAIRMAN BABCOCK: Carlos. 23 MR. LOPEZ: I've got three separate 24 comments. First one would be in terms of notifying, which 25 kind of dovetails what you said. If you never signed up D'Lois Jones, CSR (512) 751-2618 16224 1 for it, why do you need to be notified that it no longer 2 works because when you do go to sign up for it there won't 3 be anything to sign up for anymore? So my suspicion is 4 that as a practical matter when you send out electronic 5 notice to everyone who is currently signed out, which 6 ought to be easy to do because you're only sending it to 7 the universe of people that you can do it electronically, 8 you tell them it's no longer available. The ones who 9 never signed up, if you don't get that notice it's because 10 you never signed up. If you never signed up and it's no 11 longer working, how do you sign up? So I think as a 12 practical matter that's not as big a problem as it seems 13 like in theory. 14 My second comment is with regard to the 15 judge's comments about sort of forcing the JP, if you 16 will. In the limited counties that have signed on, not 17 giving the JP discretion to opt out, I kind of like that. 18 I mean, everybody has gone to the trouble, the taxpayers 19 have been billed for it, the system is there, why not -- 20 if the argument is that the JP might not know how to run a 21 computer, that doesn't -- in today's world doesn't sit all 22 that well with me. 23 And with regards to retroactively taking it 24 off, once that JP does sign onto it, let's say someone 25 else runs for the office the next year. Well, they ran D'Lois Jones, CSR (512) 751-2618 16225 1 for the office knowing that it ran this way, that it had 2 this computer, that it accepted electronic filing, so I 3 don't think that prospective litigant -- elected official 4 can say, "Gosh, I don't know how to run this, so I'm 5 turning it off." Well, you knew that's how it worked when 6 you ran for the position, so I don't see the huge problem. 7 CHAIRMAN BABCOCK: Okay. Judge Christopher, 8 then Hayes. 9 HONORABLE TRACY CHRISTOPHER: Again, just to 10 kind of understand, you can electronically file something 11 without agreeing to get electronic notices sent to you, so 12 it would not actually be as easy as pushing a button 13 saying, "Anybody who's filed with me I'm sending them 14 notice that they're not getting it," because it doesn't 15 work that way. You have to -- you can file electronically 16 without agreeing to accept services electronically. There 17 are two different things, and sending notices back out is 18 not an easy procedure under the current system. 19 CHAIRMAN BABCOCK: Hayes. 20 MR. FULLER: A version of this rule is 21 currently being used by the county and district courts now 22 who are using electronic filing; is that correct? Have 23 any of those courts quit using it, having decided to use 24 it, and if so, what has happened? 25 HONORABLE NATHAN HECHT: The current rule D'Lois Jones, CSR (512) 751-2618 16226 1 doesn't say that they can opt out, but it doesn't say they 2 can't, but nobody has, I don't think. 3 MR. HUGHES: Well, under the district and 4 county court template it's done as a local rule that the 5 county applies for for all of the courts on a certain 6 level within that county, usually divided by district -- 7 district courts and county courts because it's the 8 district clerks who handle filing for the district courts 9 and the county clerks who handle it for the county courts. 10 There are some slight variations on that because there are 11 courts where -- there is some statutory county courts, for 12 example, where the district clerk handles the filings in 13 family law cases for those courts, and so they will 14 usually apply as their own subset, but all those courts 15 are bound by it. They all come and go together, but there 16 is nothing in the rules that specifically talks about the 17 process of getting out. They would have to, I think -- 18 well, I mean, they would have to ask to have their rule 19 rescinded. 20 MR. FULLER: But that has never happened? 21 MR. HUGHES: It's never happened that I know 22 of. 23 MR. FULLER: So we're worried about 24 something that has never occurred? 25 MR. HUGHES: Mike, has that ever happened? D'Lois Jones, CSR (512) 751-2618 16227 1 Do you know? 2 MR. GRIFFITH: We've had no counties opt out 3 of electronic filing. 4 MR. HUGHES: But that's on a much -- I think 5 it's more likely to happen on the JP basis because it's 6 individual, but we talked originally about having it be 7 all or none kind of thing, and it was decided that that 8 would never fly. 9 CHAIRMAN BABCOCK: Sarah, then Judge 10 Lawrence. 11 HONORABLE SARAH DUNCAN: It was decided, the 12 famous passive voice. 13 MR. HUGHES: If you want to open up that 14 discussion, I -- 15 HONORABLE SARAH DUNCAN: Well, and I guess I 16 kind of do, but first I want to show my ignorance again. 17 Who funds the JP's office? 18 HONORABLE TOM LAWRENCE: The county 19 commissioners. 20 HONORABLE SARAH DUNCAN: Do they buy the 21 equipment and the filing and pay for the storage and the 22 computers and -- Gary is shaking his head. 23 HONORABLE TOM LAWRENCE: That's right, and 24 if the judge is meeting in his living room it's because 25 the commissioners court hasn't provided him with a D'Lois Jones, CSR (512) 751-2618 16228 1 courtroom, which they frequently don't do, or they haven't 2 given him a computer or hired any employees for him. 3 HONORABLE SARAH DUNCAN: And I accept that 4 division of funding, but my question then is why isn't 5 this the same, if the -- if what we're doing with the 6 counties courts, for instance, is that the county decides 7 whether the county courts in that county will accept 8 e-filing or participate in the e-filing system and then 9 funds that venture, why isn't the same true for JPs, if 10 the county is funding them to begin with? 11 HONORABLE NATHAN HECHT: Well, it's slightly 12 more complicated than that. 13 HONORABLE SARAH DUNCAN: I figured it was. 14 HONORABLE NATHAN HECHT: The county judges 15 decide if they want to do this or not. The judges who are 16 using the clerk to file cases decide would we like to do 17 this or not. 18 HONORABLE SARAH DUNCAN: All of the county 19 court-at-law judges? 20 HONORABLE NATHAN HECHT: If it's the 21 district court, it's the district judges; the county 22 judges, the county judges. If the county judges are using 23 the district clerk then they have to get together. The 24 clerk and the judges have to say, "Okay, we'd like to do 25 this." Okay. That's fine, but they don't have any money, D'Lois Jones, CSR (512) 751-2618 16229 1 so then they've got to go to the county and say, "Would 2 you pay for this," and the county says "yes" or "no," and 3 if the county says "yes" then the judges adopt a local 4 rule that's like this template and then off we go. 5 HONORABLE SARAH DUNCAN: But it applies to 6 all the county judges. 7 HONORABLE NATHAN HECHT: We've never let -- 8 MR. HUGHES: Within that subset. And, for 9 example, there can be like statutory county courts in 10 family cases can be their own subset of e-filing rules 11 that is different from the county courts generally in a 12 particular county, because of the way they're tied into 13 the clerk, because otherwise the other county courts 14 use -- can't use the county clerk for their filings. In 15 some counties statutory county courts use the district 16 clerk to handle family law filings. I'm not sure why, but 17 in some counties that's the way it is. 18 HONORABLE NATHAN HECHT: But the reason that 19 it's different is because -- which may not be a good 20 reason, but the difference is you have five courts that 21 are using one clerk to file, and so they all agree that 22 what goes to them through this clerk will come to them if 23 the county will pay for it; whereas, here the justice 24 courts have their own -- each justice court has its own 25 filing system. D'Lois Jones, CSR (512) 751-2618 16230 1 HONORABLE SARAH DUNCAN: Filing system. 2 Okay. Thank you. 3 MR. ORSINGER: Once the county funds the 4 process does it become self-funding after that or does the 5 county have to put money into the system every year? 6 HONORABLE NATHAN HECHT: Probably the 7 latter, and probably it's justified, I'm just guessing, 8 that the justice of the peace goes over to the 9 commissioner's court and says, you know, "If you'll let us 10 do this and provide us the technology and stuff, everybody 11 will be happier and you'll be heroes and maybe we won't 12 need to grow the FTEs as much as we have over the years 13 and this will all benefit everybody and it's a good 14 government thing and you should do it," and then maybe the 15 county will do it and maybe they won't. 16 HONORABLE SARAH DUNCAN: I would think it's 17 also an offset by the storage costs. 18 HONORABLE NATHAN HECHT: Storage costs. The 19 JP courts generate a lot of fees, and so it can come out 20 of there, but, you know, it's a typical county budgeting 21 issue. And, you know, in the big counties, it's basically 22 a no brainer. There's just not any resistance to it at 23 the county level that we've found so far, but in the 24 smaller counties, you know, every $10 is a big deal. 25 MR. HUGHES: And we started -- the task D'Lois Jones, CSR (512) 751-2618 16231 1 force started on this with the idea that the counties 2 would essentially apply for it and then the question would 3 be how many JPs in a county would have to sign on, because 4 it would be a question of we don't want to be approving 5 under a local rule different versions of the JP rules for 6 each individual JP court that wanted to do it across the 7 state. We wanted to do it by county; and then there was a 8 debate about, well, should it be the majority of the JPs; 9 and then there was the issue, well, some JPs, even though 10 they could opt into the system, they might have a pocket 11 veto on the whole process in order to get some of their -- 12 stop me, Judge, if I'm getting out of line on this, but 13 basically political issues of one judge being able to hold 14 up the whole system. 15 HONORABLE SARAH DUNCAN: Right. 16 MR. HUGHES: That was when the concept was 17 -- the task force voted to abandon the county approach and 18 just do it as a statewide set of rules with individual 19 opt-in for each court. 20 HONORABLE SARAH DUNCAN: Very helpful. 21 Thank you. 22 CHAIRMAN BABCOCK: Frank. 23 MR. GILSTRAP: There seem to be two 24 competing visions around here. One is the vision of the 25 JP conducting court in his living room, and most people D'Lois Jones, CSR (512) 751-2618 16232 1 don't like that, and we have the vision of replacing it by 2 the vision of all these pro se litigants using this 3 wonderful user-friendly system, litigating from their 4 living rooms, and I'm not sure that's such a good thing 5 frankly. 6 CHAIRMAN BABCOCK: It's certainly homey. 7 MR. GILSTRAP: And I'm a little concerned 8 about the possibility for abuse, and maybe this is outside 9 our kin here, but has any other state tried this or is 10 this something completely new? I mean, I've never heard 11 of anything like this. Do they do this in California or 12 Nebraska or anything like that? Or is this a pilot 13 project for planet earth? 14 MR. HUGHES: But the Legislature has said we 15 shall do this. 16 HONORABLE NATHAN HECHT: By January the 1st. 17 MR. GILSTRAP: Well, you know, and we're 18 trying to adopt the scope of the rules, and one of the 19 things we're trying to decide is, you know, how broadly we 20 institute this system, and there is something to be said 21 for putting it out there and letting some people opt in 22 and see if it works, because I'm not sure how it's going 23 to work, and I don't think anybody else is either. 24 HONORABLE TOM GRAY: What was the language 25 of the statute? I mean, it may eliminate the opt-in D'Lois Jones, CSR (512) 751-2618 16233 1 provision. Does it? 2 HONORABLE NATHAN HECHT: No. 3 MR. HUGHES: No. 4 HONORABLE NATHAN HECHT: It says the Supreme 5 Court shall provide for -- 6 MR. HUGHES: I pulled it out over there. 7 Here it is. 8 HONORABLE NATHAN HECHT: "The Supreme Court 9 shall adopt rules governing the electronic filing of the 10 documents in civil cases in justice of the peace courts, 11 not later than January 1st, 2008." 12 MR. ORSINGER: They probably assumed we 13 would adopt rules that apply. 14 HONORABLE NATHAN HECHT: Yeah. If we go 15 back and tell them the opposite, I don't know how that 16 would be received. 17 MR. GILSTRAP: It sounds to me like 18 extremely broad discretion has been given to the Court 19 about how fast to go with this thing, and that's what 20 we're talking about here, and maybe we just need to put 21 out a set of rules, let some JPs opt in and see if it 22 works out. The opting out is another question, but I 23 think that's the first question we're talking about here. 24 CHAIRMAN BABCOCK: Judge Lawrence. 25 HONORABLE TOM LAWRENCE: When the D'Lois Jones, CSR (512) 751-2618 16234 1 Legislature passed this all they did was direct the 2 Supreme Court to come up with these rules. There was 3 nothing in the legislative history that said it would be 4 mandatory for the JP courts. Had there been there would 5 have been no bill. It would not have passed. So the 6 political realities are such that it's going to be 7 difficult to mandate a system where you're going to tell 8 every JP court they have to participate in this because 9 the counties are not going to want to fund that in many 10 cases. 11 A lot -- I shouldn't say a lot, but there 12 are a number of JPs that do not have computers or the JPs 13 may have computers in some courts, not others, but the 14 courts are not tied in with a central computer system for 15 every court. Now, many systems like Harris County and 16 Dallas are very sophisticated, and e-filing will be no 17 problem at all for those, but that's not the case for all 18 counties. A lot of what we've been talking about for the 19 last 15 minutes, there are political considerations to 20 that, and if we're trying to devise a system to encourage 21 the JPs to participate in this and to encourage the 22 counties to fund it, then we need to not try to make it a 23 mandatory provision. We need to allow them to opt in and 24 opt out, and that's what the subcommittee tried to do when 25 we passed this. D'Lois Jones, CSR (512) 751-2618 16235 1 I think it's a very workable system we've 2 come up with. The notification, if you want to opt out, I 3 don't have a problem with putting some notification in 4 that. Nobody in the subcommittee perceived that as being 5 a particular problem. The political realities are such 6 that no JP is going to want to do anything arbitrary 7 that's going to upset his constituents that vote for him. 8 So I don't foresee that the JP is going to act in that 9 arbitrary manner, so if you want to put some protection 10 for that, that's fine, but I would urge you not to try to 11 make it mandatory. 12 CHAIRMAN BABCOCK: Okay. Let's take our 13 morning break for ten minutes, and when we come back let's 14 go on to Rule 2.1, specific terms. 15 (Recess from 10:33 a.m. to 10:50 a.m.) 16 CHAIRMAN BABCOCK: All right. Judge 17 Lawrence, we are moving right along to Rule 2.1, specific 18 terms. You want to take us through that? 19 HONORABLE TOM LAWRENCE: Sure. 20 HONORABLE NATHAN HECHT: Let me -- Judge, 21 just a second. I don't know that this point was made 22 clear earlier, but the thought was that if the task force 23 used what the committee had already approved for the 24 district and county courts, it would be smoother going 25 through, but obviously that was a mistaken idea, but keep D'Lois Jones, CSR (512) 751-2618 16236 1 in mind that we are -- we do have a set of rules that the 2 district and county courts, a whole lot of them are 3 operating under that this system was patterned on to try 4 to make the differences as few as possible, so I just 5 wanted to say that. 6 CHAIRMAN BABCOCK: Sarah. 7 HONORABLE SARAH DUNCAN: I had a very 8 disturbing break. 9 CHAIRMAN BABCOCK: Sarah, I don't know if -- 10 HONORABLE TOM GRAY: With reality? 11 CHAIRMAN BABCOCK: -- you want this on the 12 record or not. 13 HONORABLE SARAH DUNCAN: Yeah, with reality 14 that we all should know about before we even consider 15 adopting any of these rules, I think. Apparently 16 TexasOnline is unable to interface with clerks' offices. 17 As a result, when Carl e-files a document into the Harris 18 County system that document has to be scanned and then 19 it's printed for a paper file, and Judge Christopher can't 20 access that document for several days while it's in the 21 scanning, at least. I don't know that printing would 22 interfere. 23 HONORABLE TRACY CHRISTOPHER: Actually, they 24 print first and then scan. 25 HONORABLE SARAH DUNCAN: They print first D'Lois Jones, CSR (512) 751-2618 16237 1 and then the scanning process, and apparently the district 2 clerk in Bexar County, Mr. Hutton tells me, is getting 3 ready to adopt the same system but also pay for an imaging 4 system so that these documents can be imaged, but then 5 they can't interface with TexasOnline, so all we are doing 6 is shifting the cost of paper and printing supplies to the 7 counties and the states. 8 HONORABLE STEPHEN YELENOSKY: Not in Travis 9 County. We don't have to print it. It goes straight in. 10 HONORABLE TOM LAWRENCE: Well, Mike can 11 respond to that I think. 12 MR. GRIFFITH: If I may, TexasOnline 13 provides a standard export package of the document and all 14 of the details of the docketing piece. We in several 15 counties right now are interfaced with their back end 16 system, whether it be a case management or a docketing 17 management system. It varies by county because each 18 county may have its own unique case management or docket 19 management that they then have to build that bridge to 20 bring the documents in. We've worked with Harris County 21 district clerk's office to define what they want us to put 22 in our export. We've done that. They are building the 23 bridge into their document management system, but, yes, it 24 is -- there are cases and Harris is one of those where 25 they have to print and then scan the input. That's not -- D'Lois Jones, CSR (512) 751-2618 16238 1 HONORABLE SARAH DUNCAN: That's not the 2 ultimate goal. And Bexar County and Dallas County? 3 MR. GRIFFITH: Bexar County right now, you 4 can correct me if I'm wrong, they are still waiting to 5 make a decision as to what case management system they're 6 going to buy. Once that's in place we can interface with 7 it. 8 HONORABLE SARAH DUNCAN: And Dallas County? 9 MR. GRIFFITH: Dallas County bought the 10 Odyssey system during the previous district clerk's time 11 there. We were working with his vendor to build that 12 interface to them and then they decided for whatever 13 reason to halt that work. We're working now with that 14 vendor to make that interface in place in Collin County, 15 which also has Odyssey, and then that will be available 16 for everyone else. 17 HONORABLE SARAH DUNCAN: And are you 18 prepared to work with each of the justice of the peace in 19 the State of Texas to interface with their particular 20 system? 21 MR. GRIFFITH: We are prepared to provide 22 the export package. We can't build the interface to all 23 the proprietary systems that are out there, but we can 24 provide a hand off point that says this is how we're 25 presenting it to you, all you need to do is put that in D'Lois Jones, CSR (512) 751-2618 16239 1 your system. 2 HONORABLE SARAH DUNCAN: And it's taken, I 3 understand, somewhere around two years thus far with 4 Mr. Bacarisse's office in Harris County to get to the 5 point you're at? 6 HONORABLE TRACY CHRISTOPHER: We still don't 7 have the interface system, even though it's been promised 8 for a long time. 9 HONORABLE TOM LAWRENCE: But that's a county 10 issue. That's not -- 11 HONORABLE SARAH DUNCAN: It's an -- 12 HONORABLE TRACY CHRISTOPHER: But that's -- 13 HONORABLE SARAH DUNCAN: -- interface issue. 14 HONORABLE TRACY CHRISTOPHER: -- the flaw in 15 this system. I mean, I don't mean to be -- I like 16 electronic filing. I like having my documents in an 17 electronic file, but unlike the state system -- or the 18 Federal system that has, you know, a case management 19 system that, you know, all Federal courts use, we've got 20 this cobbled together, county-by-county system and, you 21 know, who knows what the JPs are going to be able to do. 22 HONORABLE SARAH DUNCAN: That's my point, is 23 why are we -- given that we can't even seem to mandate 24 this for all the JPs in the state, how do we really think 25 that we're going to have -- be able to interface as D'Lois Jones, CSR (512) 751-2618 16240 1 opposed to just shift the printing costs to the individual 2 JPs. 3 CHAIRMAN BABCOCK: Andy. 4 MR. HARWELL: Mike, how many vendors in 5 Texas offer a complete case management system? Do you 6 know? 7 MR. GRIFFITH: I would say it's probably 40 8 to 50 different case management systems. 9 MR. HARWELL: Really, that many? 10 MR. GRIFFITH: Probably a handful of 11 document management systems, but there are certainly 12 leaders actually -- 13 HONORABLE TRACY CHRISTOPHER: It's the 14 document management system that provides the interface, 15 and that's where the money is, and that's what our 16 commissioners court refused to fund because it was $6 17 million plus yearly/monthly fees to the document 18 management company. Now, you know, maybe prices have gone 19 down, but that was the rub. 20 CHAIRMAN BABCOCK: Professor Dorsaneo. 21 PROFESSOR DORSANEO: These -- so these rules 22 don't really get to the question of document management 23 systems. 24 HONORABLE TOM LAWRENCE: No. It has nothing 25 to do with it. D'Lois Jones, CSR (512) 751-2618 16241 1 PROFESSOR DORSANEO: Well, it has a lot to 2 do with it because I'm wondering what's going to happen to 3 the documents if they're just going to be kept in some 4 electronic file by an amateur. 5 HONORABLE TOM LAWRENCE: Well, I don't think 6 the Legislature gave the Supreme Court the right to 7 dictate to the counties how they do their document 8 management. All the Supreme Court can do is to promulgate 9 these e-filing rules, and correct me if I'm wrong, but 10 that's what we're working from. 11 HONORABLE NATHAN HECHT: The Supreme Court 12 is an awesomely powerful institution, but we can't tell 13 county commissioners what to do, so -- and that should be 14 obvious over the years, and so this -- I hear the 15 criticism of the system, but if you look at it from a 16 political perspective and from the Legislature's 17 perspective, there is no other way to do this, because 18 you'll never pass a law that says 254 counties have to do 19 this by week after next unless you give them the money, 20 and the state doesn't want to give them the money. So 21 they want the counties to come up with the money, but if 22 you tell the counties they have to come up with the money, 23 they'll go tell their Legislators to vote against it, and 24 I don't blame them. 25 So it's what you -- the operation thus far D'Lois Jones, CSR (512) 751-2618 16242 1 has been to provide a mechanism that both sides, both the 2 users and the government can opt into and then hope that 3 if we build it they will come, but, you know, it's going 4 to be slow because you can't -- it is exactly true. It's 5 not like the Federal system where the AO says it's going 6 to be this way no matter what you think, and that's the 7 end of that. 8 CHAIRMAN BABCOCK: Judge Christopher, and 9 then Sarah. 10 HONORABLE TRACY CHRISTOPHER: But if 11 TexasOnline had the document management system, if the 12 cost was shifted to the state entity, then more counties 13 would be able to use it in a better way. Each county 14 could still have their individual case management system 15 that they either buy or build themselves, but it's the 16 document -- I don't understand it, but, you know, I keep 17 asking, "Can we get it electronically? Why can't you put 18 it electronically in my file" and they say, "Well, there's 19 this, you know, interface problem." 20 CHAIRMAN BABCOCK: Sarah. 21 HONORABLE SARAH DUNCAN: I'm not sure if we 22 build it they may come, but what it's sounding like to me 23 is we don't want them to come, if all we're doing is 24 shifting the cost. I mean, it's just like this committee. 25 You know, when I was at the court I was using a ream of D'Lois Jones, CSR (512) 751-2618 16243 1 paper just about, half a ream, for every meeting to print 2 what used to be provided to me by the committee. If all 3 we're doing is shifting to the counties and the JPs, by 4 these rules, the cost of printing all of these documents 5 until 15 years from now when we finally get everybody 6 interfaced, that sounds like really backwards cost 7 efficiency to me, but it may be that we won't build the 8 interfaces until we do this, but I'm just not sure we want 9 them to come. 10 CHAIRMAN BABCOCK: Okay. Well, you think 11 the rule should say, "Sorry, Legislature, but we think 12 this is a bad idea, so there are no rules"? I mean, what 13 can we say? 14 HONORABLE SARAH DUNCAN: I'm thinking it 15 should be even -- what we can say is "pilot project" and 16 start looking at how we're going to interface with any 17 JP's computer system that isn't currently. 18 CHAIRMAN BABCOCK: Okay. Richard. 19 MR. ORSINGER: I think obviously we need to 20 design several rules. We've been told we have to, and 21 they need to be workable, and we already have a model of 22 workable rules. We just don't know how well the 23 understaffed and undersupplied JPs can do it, but we've 24 decided to allow them to opt in if they have the resources 25 and the willingness, and if they don't, they don't have D'Lois Jones, CSR (512) 751-2618 16244 1 to, but we have to do something because the future is 2 forcing itself on us, and the rest of the world is going 3 electronic, and commerce is electronic. International 4 finance or even national finance is electronic. 5 Entertainment is electronic. I just read an article 6 yesterday that CD sales are down 50 percent because 7 everybody is running around with little digital music all 8 the time. 9 As often, the legal profession is way, way 10 behind the rest of the society, and this is a first step, 11 and we have to take it, and it's not going to be where we 12 end up, and it's not even going to be where we are going 13 to be in five years, but if we don't take the first step 14 we're just going to get left behind, and it's going to be 15 dysfunctional, and we end up with the private legal system 16 that operates through the -- through arbitration in an 17 effective manner and then we can just retire. 18 CHAIRMAN BABCOCK: Judge Yelenosky. 19 HONORABLE STEPHEN YELENOSKY: Is Judge Dietz 20 still coming on that MDL question today? Are we having 21 that? 22 CHAIRMAN BABCOCK: What? 23 HONORABLE STEPHEN YELENOSKY: Because I'm 24 just wondering if he's going to be here because -- 25 MR. ORSINGER: Look behind you. D'Lois Jones, CSR (512) 751-2618 16245 1 HONORABLE STEPHEN YELENOSKY: Because if 2 anybody can explain -- 3 CHAIRMAN BABCOCK: The great Judge Dietz has 4 arrived. 5 HONORABLE STEPHEN YELENOSKY: -- can answer 6 any technical questions about electronic filing, this is 7 your man. 8 CHAIRMAN BABCOCK: Yeah. Judge Dietz, you 9 may have wandered into something that you're not ready 10 for. Okay. Well, yeah, Sarah. 11 HONORABLE SARAH DUNCAN: But doesn't -- it 12 certainly affects my view of whether a JP should be able 13 to opt out of this system once I know that I am shifting 14 the cost to the county and the JP's office to print all of 15 this stuff until an interface is developed, which may or 16 may not be within that JP's term and a new JP coming into 17 that office, and I do think we need to be very clear about 18 offices versus occupant of offices. Even if that office 19 and that county have devoted the resources necessary to 20 e-filing for one JP's term, if a new JP comes in and looks 21 at the system -- and, frankly, I think I would and realize 22 that all I've done is shift the cost from the lawyers and 23 their clients to the county to pay for paper and the 24 printing and the printers and the people to stand at the 25 printers, I might very well decide to discontinue e-filing D'Lois Jones, CSR (512) 751-2618 16246 1 in my court, and it has completely changed my view of that 2 question that I think we were talking about before the 3 break. 4 CHAIRMAN BABCOCK: All right. Judge 5 Lawrence, Jim Perdue, and then we're going to shift over 6 to Hatchell for a second because Judge Dietz is here to 7 talk about that issue. Jim. 8 MR. PERDUE: I just -- my own -- is it 9 really the difference between Montgomery County, which has 10 full e-filing, and the difference between Harris County 11 just a commissioners court funding, and that's the 12 distinction? Then, I mean, you can have a philosophical 13 problem with unfunded mandates, but the Legislature does 14 it all the time. 15 CHAIRMAN BABCOCK: Yeah. 16 MR. PERDUE: And if they've told us you have 17 to -- it seems like we could have a philosophical 18 objection to what it is, but they do it and then you're 19 stuck with it, and it's a commissioners court question. 20 CHAIRMAN BABCOCK: Judge Lawrence, last word 21 for the moment. We'll be back. 22 HONORABLE TOM LAWRENCE: Well, the 23 Legislature told the Court to promulgate these rules. The 24 Court appoints a task force. We have an eight and a half 25 page document that went through a lot of consideration by D'Lois Jones, CSR (512) 751-2618 16247 1 a lot of smart people, not me, but a lot of other smart 2 people, and now we're trying to get this done today 3 because the Court wants to meet the 60-day deadline to 4 publish it in the Bar Journal to give 60 days of comments, 5 which means you have to get it in September I guess to 6 meet the Bar Journal deadline, right? 7 So a lot of what we've been discussing is 8 interesting, but it doesn't have much to do with these 9 e-filing rules. We have to get these rules out or Jody is 10 going to have to do it all himself next week, so I think 11 the Court would like to know what we think about these, 12 and the idea of whether or not it's a good idea is really 13 kind of beyond our paper. The Legislature has already 14 decided we're going to do it, and the Court's got to do 15 it, so I would like to go ahead and get through these. 16 CHAIRMAN BABCOCK: Yeah. Well, Sarah's 17 point is that on the issue of opting in or opting out that 18 she's influenced by how the mechanics work, so that 19 there's been benefit to talking about the mechanics. 20 Judge Patterson, could you hold your comment until 21 Hatchell hatches through his point, because Judge Dietz, 22 the great Judge Dietz, I might add, is here to help us do 23 that? 24 HONORABLE JOHN DIETZ: It's because you won 25 one time, Babcock. D'Lois Jones, CSR (512) 751-2618 16248 1 CHAIRMAN BABCOCK: That's true. There was 2 one victory. 3 MR. HATCHELL: Some weeks back the 4 subcommittee on the Rules of Judicial Administration 5 received a referral from Justice Hecht on two matters 6 involving the MDL rules, and I think that this is a matter 7 that should not occupy much length before the committee, 8 but -- 9 CHAIRMAN BABCOCK: Famous last words. 10 MR. HATCHELL: -- you've proved us wrong on 11 many occasions. The first of those matters can be summed 12 up very quickly. The referral to us said an interim 13 meeting of the House Civil Practices Committee last summer 14 made a suggestion that Rule 13.6 of the Rules of Judicial 15 Administration be amended to permit a pretrial judge to 16 use a special master on the theory that special masters 17 might be helpful on small discovery and evidentiary 18 rulings. 19 When we received this referral we 20 immediately sought comments and input from our two MDL 21 judges, one of whom sits on this committee, Judge 22 Christopher, and we received the following response: 23 "Neither Mark Davidson, who handles the asbestos, nor I" 24 -- this is Judge Christopher -- "think a master is a good 25 idea in the MDL cases since the rule allows the panel to D'Lois Jones, CSR (512) 751-2618 16249 1 appoint a second judge if needed." 2 Now, we think that is preferable. The 3 subcommittee voted unanimously with six members voting to 4 recommend that the rules not be amended to permit the use 5 of a master, with this caveat. The committee as a whole 6 did not see any particular disadvantage to amending the 7 rules in that regard, but we believe that the judges who 8 administer the MDL rules are in a much better position 9 than us to decide what is best, so the committee is 10 recommending unanimously that that suggestion be denied. 11 And that, I suppose, Mr. Chairman, is on the floor. 12 CHAIRMAN BABCOCK: All right. Judge Dietz, 13 any comments you'd like to make? 14 HONORABLE JOHN DIETZ: On the appointment of 15 the master? 16 CHAIRMAN BABCOCK: Yes, sir. 17 HONORABLE JAMES DIETZ: No, sir. 18 CHAIRMAN BABCOCK: Judge Christopher. 19 HONORABLE TRACY CHRISTOPHER: No. 20 CHAIRMAN BABCOCK: Okay. 21 HONORABLE NATHAN HECHT: Could I ask, is 22 there a thought that an MDL judge does not have the 23 authority that's under 173 or 83 or whatever the rule is 24 to appoint a special master if he or she wants to, that 25 you would need specific authority in the Rule of Judicial D'Lois Jones, CSR (512) 751-2618 16250 1 Administration? 2 HONORABLE TRACY CHRISTOPHER: Because of 3 some language in the -- in Rule 13 that says I'm the only 4 one who can do it, that I can't, like, have someone else 5 preside for me, I think that was probably the concern. 6 I'm not really sure who, you know, brought this issue up 7 to begin with, but that would be where I think the rub 8 might possibly be, that we're not allowed to have someone 9 sit in our spot. 10 HONORABLE NATHAN HECHT: And, of course, the 11 reason for that was to not have the sitting-for system 12 that we have in all the counties. 13 HONORABLE TRACY CHRISTOPHER: Right. 14 MR. HATCHELL: Well, I think the 15 subcommittee was also, your Honor, not convinced that the 16 power was not inherent. 17 The second matter is a little more 18 substantive. Although, let me tell you at the beginning 19 that the subcommittee is also recommending no change to 20 the rules, but the description of the referral is "Judge 21 Mark Davidson, whom the MDL panel assigned as pretrial 22 judge in asbestos MDL cases, has suggested that the Court 23 consider amending Rule 13.7 to allow a pretrial judge to 24 remand a case to a particular court in those counties that 25 use a central docket system to assign cases. Judge D'Lois Jones, CSR (512) 751-2618 16251 1 Davidson indicates that it could be difficult to set a 2 trial date under Rule 13.6 of the RJA that works for a 3 particular trial judge if the pretrial judge doesn't know 4 which trial judge will hear the case. The Court seeks the 5 committee's recommendation." 6 We, again, were benefited by input from 7 Judge Christopher, and her response on this was somewhat 8 longer. She said, "The local rules of those counties with 9 central docket systems mandate that all trials go on the 10 central docket. A judge assigned the asbestos case from 11 the central docket may not have set enough time to try the 12 case. They are not setting it number one on the central 13 docket either, essentially ignoring the rule that requires 14 these cases to have priority. Some central dockets like 15 Austin allow for an assignment to a particular judge, but 16 apparently the presiding judge in Austin refuses" -- and 17 I'm going to tell you that's not true -- "to do that for 18 the asbestos case. What an MDL judge needs is something 19 in the rule that specifically says that when remanded to 20 the trial court that case will be tried by the judge in 21 which the case was originally filed, trumping any local 22 rules as to trial settings." 23 We did some investigation on this point, and 24 I think perhaps, like many urban legends, the problem has 25 been blown somewhat out of proportion. I had a very D'Lois Jones, CSR (512) 751-2618 16252 1 useful conversation with Judge Dietz, who was candid to 2 say that the one incident seems to have prompted this 3 concern by -- and a legitimate concern, I'm sure, by our 4 MDL judges, but it was simply a matter of unfamiliarity 5 with the remand procedures and some misunderstanding, 6 perhaps, on the part of his staff that one case did not 7 proceed perhaps at the priority level that it should. 8 The committee took Judge Christopher's 9 comments, Judge Davidson's comment, and Judge Dietz's 10 comments into consideration at a telephone meeting this 11 week and -- or, actually, two weeks ago, and we decided at 12 that time that because of the nature of the referral we 13 should have a draft rule. Judge Gray was very forthcoming 14 in volunteering to do that rule. He spent a considerable 15 amount of time drafting a very complex rule, and we have 16 put that before you. It looks like this. I hope you have 17 it in your papers, but let me say, again, in a telephone 18 conference on Wednesday of this week, while we made some 19 fine-tuning to Judge Gray's otherwise very comprehensive 20 rule, the committee voted unanimously not to recommend its 21 adoption. 22 CHAIRMAN BABCOCK: Fair enough. Judge 23 Christopher, anything on this proposed rule? 24 HONORABLE TRACY CHRISTOPHER: No, other than 25 to say, I was just repeating Judge Davidson's comments D'Lois Jones, CSR (512) 751-2618 16253 1 because I haven't yet had this problem myself. 2 MR. HATCHELL: So the committee understands, 3 there are only two central docket counties, and we are 4 fortunate to have both Judge Dietz and Judge Peeples who 5 administer those central dockets today, and I'm going to 6 get out of the way. 7 CHAIRMAN BABCOCK: Judge Dietz. 8 HONORABLE JOHN DIETZ: This is the facts, at 9 least as we know them. Mark made a referral, the first 10 one to us, and it was snake bit from the beginning, and 11 that was on May the 22nd, 2006. Unfortunately the file 12 from Houston did not make it to Austin on that Monday, and 13 it made trying the case very difficult, and Judge Cooper 14 reset the case, and it was at that time that Mark and I 15 had this discussion about the cooperative nature and what 16 we needed to be doing. The case was retried in June 7th. 17 Originally May the 22nd we set it for June the 7th, and 18 the jury deadlocked on the trial. Ultimately it settled. 19 Since that time we've set up a procedure for 20 Mark to call the court administrator directly. He has 21 given us six cases, none of which have ever announced 22 ready, and so I think it's if we need to move those cases 23 then it's more that those people need to announce ready on 24 our docket, and we will make sure or ensure that they will 25 be heard the week that they're given to us. D'Lois Jones, CSR (512) 751-2618 16254 1 CHAIRMAN BABCOCK: Judge Peeples. 2 HONORABLE DAVID PEEPLES: I'm not aware that 3 we've had experience with this remanded cases that didn't 4 get taken care of. If that's happened, it has not come to 5 my attention. 6 CHAIRMAN BABCOCK: Judge Christopher, are 7 either yourself or Judge Davidson in favor of amending 8 Rule 13.7 either in accordance with this draft or in any 9 other way? 10 HONORABLE TRACY CHRISTOPHER: You know, I 11 feel like I'm sort of in between Judge Davidson and Judge 12 Dietz, and perhaps they've had some discussions since then 13 and have solved the problem. I'm not really sure what 14 this announcement of ready is. My understanding under the 15 rules is we call up, we say, you know, "We've got this 16 case, it's ready for trial. It needs to go to trial. 17 Here's the date," and the trial judge is supposed to give 18 it priority. So I'm not really sure what this 19 announcement of ready situation is and whether there's a 20 continuing problem, and I'm sorry. I tried to get a hold 21 of Judge Davidson before I came, but he had been out of 22 the office for a week due to a death in the family and 23 didn't get any further update from him. 24 CHAIRMAN BABCOCK: Okay. Well, how do you 25 personally feel about the need for an amendment to the D'Lois Jones, CSR (512) 751-2618 16255 1 rule? 2 HONORABLE TRACY CHRISTOPHER: I don't like 3 to step on people's toes with a central docket system, but 4 it does seem to me that if a case is filed in one judge's 5 court that it ought to go back to that court, but, you 6 know, I know that's not the way it is in the central 7 docket system counties, but -- which was what we were 8 initially asking for, and I haven't looked at this draft 9 yet. It was just that, you know, if the case was set in 10 the 295th, regardless of whether there was a central 11 docket system in place or not, when the 295th was told 12 that the case is ready for trial on June 1, I could call 13 the 295th and say, "Are you available June 1" and work it 14 out with that individual judge versus here in the central 15 docket system, not knowing who that judge would be, which 16 of the judges it would be. 17 HONORABLE JOHN DIETZ: Mr. Chairman? 18 CHAIRMAN BABCOCK: Yes. 19 HONORABLE JOHN DIETZ: Judge Davidson and I 20 have good rapport. I have taken some matters from him off 21 of the MDL to hear in Austin and then given them back to 22 him. If you will allow us, I think we can work out any 23 problems that he's got, and if he wants to do and have 24 them announce ready there before him, then we'll take that 25 as an announcement of ready and we'll take care of it. I D'Lois Jones, CSR (512) 751-2618 16256 1 just don't, quite frankly, see any need for a rule because 2 we've had heretofore really good rapport, and we don't 3 want to give up any more discretion than we have to. 4 CHAIRMAN BABCOCK: Thank you. Mike, was 5 there any additional thought of the subcommittee in its 6 unanimous recommendation not to amend the rule? 7 MR. HATCHELL: No. We just voted 8 unanimously based on our investigation of the problem, and 9 we determined that there was no problem and that these 10 matters are intricate enough that the cooperation that's 11 already been built we thought sufficed, and we don't 12 believe a rule would really be very useful. 13 CHAIRMAN BABCOCK: Okay. Justice Hecht, do 14 you need any further elaboration beyond what we've said 15 and the fact that you got a draft rule if you want one? 16 HONORABLE NATHAN HECHT: No. This is all we 17 asked you to do. 18 CHAIRMAN BABCOCK: How about this master in 19 chancery thing, which I had never heard of until last 20 week? 21 MR. HATCHELL: That's the first thing we 22 voted on. 23 CHAIRMAN BABCOCK: Oh, we didn't -- I'm 24 sorry. 25 MR. HATCHELL: And that completes our D'Lois Jones, CSR (512) 751-2618 16257 1 referral. 2 CHAIRMAN BABCOCK: It wasn't a special 3 master, it was a chancery master. 4 MR. HATCHELL: Well, they're used 5 interchangeably sometimes. 6 CHAIRMAN BABCOCK: So it's a 117 issue. 7 Good. If there's nothing more on that -- 8 MR. HATCHELL: We didn't vote, but -- 9 CHAIRMAN BABCOCK: Huh? Well, do we need a 10 vote? 11 MR. HATCHELL: I don't know. You're the 12 chair. 13 CHAIRMAN BABCOCK: Anybody else got anything 14 on this issue? If not, Judge Dietz, thank you for joining 15 us, and you're welcome to stay for the JP electronic 16 filing rules, which we'll go back to right now, Rule 2.1. 17 HONORABLE TOM LAWRENCE: All right. Rule 18 2.1, covering some definitions. For the most part these 19 definitions are identical to those definitions in the 20 county and district court e-filing rules, and we tried to 21 keep those as identical as we could to avoid confusion 22 among those who file. 23 (a) is different, civil cases. Because of 24 the diverse jurisdiction of the JP courts we felt the need 25 to define a civil case. "All cases filed in small claims D'Lois Jones, CSR (512) 751-2618 16258 1 court and all noncriminal cases filed in the justice 2 courts. The term does not include matters by a justice of 3 the peace acting as a magistrate." 4 Convenience fee, there was a little bit of 5 discussion about this. It's a fee that is charged in 6 connection with electronic filing that is in addition to 7 the regular filing fee. So you have the court costs that 8 Texas -- that are paid through TexasOnline, and then 9 TexasOnline sends that to the counties, and the county may 10 also charge a convenience fee, and this convenience fee as 11 charged by the justice of the peace court will be 12 considered as a court cost, and, Alan, I'll let you 13 explain the convenience fee because really DIR has to 14 approve that. 15 MR. MARTIN: Yes, we know that whenever we 16 put up something in place that either agencies or counties 17 or whoever has to work with, that those entities incur 18 costs, and so we've got a mechanism here for us to 19 reimburse the county by transactions. It's a transaction 20 fee over a period of time to recoup those costs. DIR 21 approves it based on what the county has sent us telling 22 us what their expenses are. I have one on my desk right 23 now which is all printing costs. I have another one which 24 we received several months ago which includes some 25 computer equipment and the like that they needed to put in D'Lois Jones, CSR (512) 751-2618 16259 1 place for a different court. 2 There are some limitations to that, what 3 that fee can be used for. It cannot be used for employees 4 of the court. In other words, if you already employ 5 somebody to process this and we're giving you a different 6 method of processing it then you can't count that 7 employee's time as new costs; but if you have to bring in 8 a consultant to build an interface, for instance, for your 9 existing system, that would be able to be counted. So 10 what happens is we get what we call a CFO letter from the 11 political entity, in this case the courts, saying, "Here's 12 what these costs are to us, what we project for the next 13 two years," and then we will set the fee based on what we 14 will do to do the cost recovery of that. 15 Generally we have a two-dollar fee 16 pre-approved for any courts that need to use it. Now, 17 some courts have had up to a five-dollar fee. I know in 18 the case of Fort Bend County we had a two-dollar fee for 19 several years, and that was just recently rescinded 20 because the cost recovery had been completed. We do have 21 to review those every year to make sure that the counties 22 have reached that cost recovery, and so at whatever point 23 that they do then we will have to rescind that fee. Any 24 questions that I can answer on that? 25 CHAIRMAN BABCOCK: Richard Orsinger. D'Lois Jones, CSR (512) 751-2618 16260 1 MR. ORSINGER: I guess I don't know when to 2 raise this, so I'll raise it now, and I wasn't clear what 3 we did about indigents in this system, but if someone 4 qualifies as an indigent litigant are they entitled to 5 e-file for no charge or are they just supposed to file by 6 mail or personal delivery to the court? 7 MR. MARTIN: I think that's by mail. 8 MR. ORSINGER: So there is no concept here 9 that charges for electronic filing are waived. If you 10 can't afford them then you just file conventionally, 11 right? 12 MR. MARTIN: At this time. I know we're 13 talking to OAG about indigent filings. We've had a fairly 14 long conversation about this, what we can do to help the 15 attorney general's office to move toward something that 16 could be done. 17 MR. ORSINGER: Do you think we ought to 18 mention at some point that if a court has opted in, that 19 the indigents -- that they're not obliged to provide the 20 electronic service free of charge, because I don't see 21 that that's mentioned anywhere how an indigent either fits 22 or doesn't fit into this set of rules? 23 MR. MARTIN: I think that idea should be 24 entertained. In other words, it's really up to you-all 25 whether you-all want that to be in there, because it D'Lois Jones, CSR (512) 751-2618 16261 1 really affects the counties and what their costs are. You 2 know, we want to make sure that we help you-all reach the 3 ability to use the system, but how you use the system 4 within the county and how you apply it to the different 5 types of cases and the like is really not in our purview 6 to make that decision, but, you know, we do want to work 7 -- we have to work with the counties on an individual 8 basis to make sure that we address all of their issues, 9 and that may be one of them that they will need to look 10 at, and you may need to address it, too. 11 CHAIRMAN BABCOCK: Alan, I've got a 12 question. I was looking for it while you were talking. 13 There's nothing in these rules that sets out the amount of 14 the convenience fee or kind of what you said, what it's 15 intended to be; is that right? 16 MR. MARTIN: No. There's nothing in there. 17 I mean, again, there could be counties that would never 18 come to us for a fee. They are already in the process of 19 doing internal changes to their IT environment, and we 20 are -- you know, we're just meshing in with that very 21 well. There's other counties, as have been pointed out 22 here today, that really don't have a good IT 23 infrastructure, so for them to take advantage of e-filing 24 they need some additional equipment or consulting to help 25 them get to that place. And that's the whole idea behind D'Lois Jones, CSR (512) 751-2618 16262 1 the convenience fee, is to give them an opportunity to 2 say, yes, we're going to have to pay to do this, but we 3 have a recovery mechanism for a period of time with which 4 to be reimbursed. 5 HONORABLE TOM LAWRENCE: The convenience fee 6 is in the DIR rules, right? 7 MR. MARTIN: It's in the DIR rules, and it's 8 considered to be a fee over and above the court fees. It 9 is a TexasOnline fee. The court portion of it, like the 10 e-filing fee of $4, is our fee. The $2 or whatever we 11 would allow for the courts is considered a court fee, and 12 it's done under our jurisdiction, and we have to pass it, 13 and we also have to rescind it. 14 CHAIRMAN BABCOCK: Jody. 15 MR. HUGHES: I was just going to point out 16 that in these rules this Rule 4.1(h) talks about it. It 17 doesn't say what the fee is. It just says it's approved 18 by the DIR board, but it gives a little more of the detail 19 that Alan just went into there about authorizing the -- 20 the court can charge, that it's set by the DIR board and 21 in addition to other fees. 22 CHAIRMAN BABCOCK: Okay. Great. Okay. Any 23 other comments about -- thank you, Alan -- about the 24 convenience fee? 25 HONORABLE TOM LAWRENCE: All right. (c) D'Lois Jones, CSR (512) 751-2618 16263 1 through (k) are identical to the county and district court 2 definitions, no change on those. (l), we define that a 3 justice of the peace court means a justice court or a 4 small claims court, because small claims court is defined 5 separately by the Legislature and the Government Code, 6 whereas the justice court rules are set in the Rules of 7 Civil Procedure. 8 (m), we get back into participating justice 9 of the peace court means one that has set up a TexasOnline 10 account. This is consistent with what we talked about 11 earlier. (n), we define "party." (o), "Registered 12 e-mailed address means an e-mail address registered 13 through TexasOnline for the transmission and receipt of 14 electronically filed documents." 15 "Regular filing fees, rules," it just 16 defines what these rules are. "Traditional court order" 17 is identical to the county and district court rules, and 18 "traditional filing" is additional to the county and 19 district court rules. 20 CHAIRMAN BABCOCK: Richard Munzinger. 21 MR. MUNZINGER: In definition (n), as in 22 November, you define "party." I have two questions about 23 it. The first is at the end of the definition you say 24 that an attorney is a party, and I don't -- that seems to 25 me to be unusual and would certainly expand upon an D'Lois Jones, CSR (512) 751-2618 16264 1 attorney's liability, and I wonder if it would have 2 substantive effects elsewhere in the rules and possibly in 3 the matter before the court; and, secondly, party is 4 limited to person, which is an undefined term, and you may 5 want to do something about including nonhuman parties, but 6 entities, corporations, etc. But I am concerned about 7 making the definition of "party" include an attorney. I 8 don't know why it's done. 9 HONORABLE TOM LAWRENCE: Well, I think, we 10 did it that way to recognize the pro ses. We're not 11 trying to change any definitions of parties in the rules 12 of procedure, but within the rules we're trying to make it 13 clear that a party can either be a pro se or it can be the 14 attorney for that person, for that entity. 15 CHAIRMAN BABCOCK: Judge Lawrence, would it 16 be -- would you satisfy that concern then if you said, 17 "whether represented by an attorney or appearing pro se," 18 period? That would solve Richard's problem. 19 HONORABLE TOM LAWRENCE: Is that in the 20 county and district court rules, or is that something we 21 added? 22 HONORABLE TRACY CHRISTOPHER: It's in there. 23 HONORABLE TOM LAWRENCE: Yeah, actually, 24 party is. It's identical in the county and district court 25 rules. We just parroted the same language. D'Lois Jones, CSR (512) 751-2618 16265 1 CHAIRMAN BABCOCK: Richard wasn't here then 2 to spot that. 3 HONORABLE TOM LAWRENCE: So, you know, I 4 guess it kind of begs the question if we change this and 5 leave the other it's going to be confusing. We tried not 6 to do that. 7 CHAIRMAN BABCOCK: Justice Gray. 8 HONORABLE TOM GRAY: I was trying to place 9 this in the context of what was recorded in my memory and 10 was trying to remember if subsection (c), digitized 11 signature, was where we got in a long discussion of what 12 it meant to have a wet signature or a digitized signature. 13 Do you -- is that the context of subsection (c)? 14 HONORABLE TRACY CHRISTOPHER: I think that 15 was in connection with Rule 11. 16 HONORABLE TOM GRAY: Was that Rule 11? 17 Okay. I just could not remember where that occurred. 18 Thank you. That's fine. 19 CHAIRMAN BABCOCK: Any other comments about 20 the definitions? 21 HONORABLE TOM LAWRENCE: All right. 2.2, 22 application to pro se litigants, and that is identical to 23 the -- actually, we changed one word, I think. "The term 24 'attorney' shall apply to an individual litigant in the 25 event a party appears pro se." I think in the other rules D'Lois Jones, CSR (512) 751-2618 16266 1 it's "counsel," and I don't remember why we changed it to 2 "attorney" other than the fact that it -- 3 MR. HUGHES: I think the reason we changed 4 it was in the definition it said "counsel," but then we 5 realized sprinkled throughout the rule it used "attorney," 6 and we just tried to make it consistent. 7 HONORABLE TOM LAWRENCE: Okay. That's 8 right. 9 CHAIRMAN BABCOCK: Any comments about that? 10 HONORABLE TOM LAWRENCE: Okay. 3.1, 11 documents that may be filed, that may be electronically 12 filed, and basically we -- what we do is just like they do 13 in the county and district court rules. We set out that 14 anything may be filed except for and then we list the 15 documents that can't be filed; and those things that are 16 excluded out are identical, I believe, to what is in the 17 county and district court rules. Citations, return of 18 citation, bonds, subpoenas, proof of service of subpoenas, 19 in camera documents, and documents sealed. And that's 20 identical to county and district; and then part (b), 21 although I can't recall any document ever having been 22 sealed in JP court, nonetheless, I guess theoretically it 23 could happen, so part (b) is also identical to county and 24 district court. 25 CHAIRMAN BABCOCK: Okay. Any comments on D'Lois Jones, CSR (512) 751-2618 16267 1 3.1? 2 HONORABLE TOM LAWRENCE: All right. 3.2, 3 documents containing signatures. I'm comparing. This 4 looks like it is also, I think, identical to -- it's 5 identical to the county and district court rules except in 6 (d). We have two sentences that's slightly different than 7 the county and district court. "Where a filer has 8 electronically filed a scanned image under this rule, the 9 court may require a filer to file a document in a 10 traditional manner" and "a party may request the court in 11 which the matter is pending to allow inspection of a 12 document maintained by the filer." And that's really no 13 different than the common law or the Rules of Judicial 14 Administration. If you've got a document filed then 15 somebody can come in and look at it, and you're just 16 saying that if it's filed electronically then you've got 17 to give them the ability to look at that electronically. 18 MR. MUNZINGER: Chip? 19 CHAIRMAN BABCOCK: Yeah. 20 MR. MUNZINGER: The last sentence of 21 subparagraph (d) of 3.2, is that intended to apply only to 22 documents that were e-filed? 23 HONORABLE TOM LAWRENCE: Well, yeah, because 24 we already have all sorts of other rules that apply to 25 documents that are traditionally filed. D'Lois Jones, CSR (512) 751-2618 16268 1 MR. MUNZINGER: The intent of that sentence 2 is if I filed something with your court electronically my 3 adversary has the right to force me to show my adversary 4 the document I filed? 5 HONORABLE TOM LAWRENCE: No, it's that the 6 court has to let that person come in and view it if they 7 come into the court. 8 MR. MUNZINGER: As it was electronically 9 filed? 10 HONORABLE TOM LAWRENCE: Yes. 11 HONORABLE TRACY CHRISTOPHER: No, no, no. 12 That second sentence is to allow you to look at the other 13 party's original document. 14 HONORABLE TOM LAWRENCE: Oh, I'm sorry. 15 Yeah, you're right. That's correct. 16 MR. MUNZINGER: Well, there's no limitation 17 that the right to view a document be limited to the 18 document that I filed electronically in the sentence. 19 That may be the intent of the paragraph, but it's not the 20 only interpretation one could draw from it. 21 HONORABLE TOM LAWRENCE: Well, that's the 22 same language we use in county and district. We tried to 23 -- once again, we tried to parrot that. 24 HONORABLE TRACY CHRISTOPHER: Well, by the 25 fact that it says "document maintained by the filer," that D'Lois Jones, CSR (512) 751-2618 16269 1 does imply that because you are maintaining the original 2 when you electronically file something. 3 HONORABLE TOM LAWRENCE: See, (d) is scanned 4 images. (d) is not the original electronic document. (d) 5 is something that you've got the hard copy in hand and 6 you've scanned it and you've sent the scanned document in. 7 What this is saying is that you have to maintain the right 8 -- someone's right to come in and look at that original 9 document that you have scanned in as an attachment. 10 MR. JEFFERSON: I guess I've got a problem 11 with that, because once you've submitted a document 12 electronically the electronic version of the document 13 becomes the court document, I assume, and so if you want 14 to know what the document is you don't go back to the 15 filer. You go to the court document and print it off 16 whatever the court file is or look at it on whatever the 17 computer image is. 18 HONORABLE TRACY CHRISTOPHER: Well, you want 19 to be able to inspect the original to make sure it's a 20 real signed document, because all you see is a copy of it, 21 a scanned in -- you want to be able -- you have the 22 original if you've notarized something. You scan it and 23 file it, and your opponent ought to be able to come look 24 at the original notarized document. 25 MR. JEFFERSON: To my office? D'Lois Jones, CSR (512) 751-2618 16270 1 HONORABLE TRACY CHRISTOPHER: To make sure 2 it was really notarized, just like they can look at the 3 court file to see a notarized document. 4 MR. JEFFERSON: To me that's completely 5 eliminating all of the advantages that you get from 6 e-filing something electronically in the first place. 7 You're turning something into a court document when you 8 submit it electronically, and now the electronic version 9 is the official version of the document. 10 HONORABLE TRACY CHRISTOPHER: It's just 11 the -- 12 MR. JEFFERSON: And if you've not complied 13 with the rules in submitting it electronically then you 14 may be able to challenge the procedure, but you shouldn't 15 be able to challenge the integrity of the document that 16 has been accepted as a court document. 17 HONORABLE TRACY CHRISTOPHER: It's only the 18 verified, acknowledged, sworn-to document. 19 HONORABLE TOM LAWRENCE: We're talking about 20 scanned documents only here. 21 HONORABLE TRACY CHRISTOPHER: Documents 22 containing signatures, so that I can look at your 23 affidavit to see that your client actually signed it. 24 MR. LOPEZ: Or that he signed it before you 25 started looking at it. D'Lois Jones, CSR (512) 751-2618 16271 1 CHAIRMAN BABCOCK: Carlos and then Pete. 2 HONORABLE TOM LAWRENCE: If you don't want 3 to maintain the document you can just file the document 4 itself with the court and not do it electronically, if you 5 don't want to have to maintain it. That's what you would 6 have to do otherwise. 7 CHAIRMAN BABCOCK: Carlos. 8 MR. LOPEZ: I'm not sure what the import of 9 this is. What if there is a discrepancy? You know, then 10 what happens then? I mean, whose version is right and how 11 does the person who, quote, maintained it prove that, in 12 fact, it hasn't been monkeyed with? 13 MR. MUNZINGER: Maybe it affects its 14 admissibility into evidence or authenticity or affects 15 whether the contract was signed on the date that it claims 16 it was signed. It could have substantive ramifications. 17 MR. LOPEZ: I agree with you that it does. 18 I'm saying how does whoever is asked to call upon that 19 dispute decide? I mean, how do we know who has the 20 official version and if the party, an interested party, is 21 somehow the custodian of what is considered to be the 22 official version? I think that, at least theoretically, 23 raises another whole set of problems. In highly contested 24 adversarial litigation you're going to say that my 25 opponent -- I'm supposed to trust them as to what it D'Lois Jones, CSR (512) 751-2618 16272 1 looked like and that the notary really did notarize it on 2 that page? I've had issues in my court where the issue is 3 was the notary really there, did they follow the proper 4 procedures, and it gets heavily contested, and this just 5 seems to put the -- kind of put the fox in the hen house. 6 MR. JEFFERSON: It creates all kinds of, I 7 think -- it seems to me it creates all kinds of issues, 8 because if I maintain the document even if I'm the one 9 that submitted it electronically if I don't like the way 10 it looks in the court record then I can say -- I should be 11 able to say to the court, "That's not the real document, 12 I've got the real document, and so substitute"? 13 I mean, you know, once you've followed the 14 procedure, once you've gone through all of the electronic 15 submission procedures that are applied for in the rule, 16 then the document that is accepted is the document. 17 That's the court document, and you may be able to 18 challenge it, the weight of it or the persuasive ability 19 of it somehow, but you shouldn't be able to challenge the 20 fact that that is the document. 21 MR. MUNZINGER: I don't know that that rule 22 says that you can challenge the document, but what it does 23 say is the JP could say to me, "You go look at Lamont's 24 file," and "I want to look at Lamont's file, Judge. He 25 filed this document, and I think that notary signature is D'Lois Jones, CSR (512) 751-2618 16273 1 fraudulent. I think that's Lamont's signature." Okay, 2 the JP under this rule says, "Go look at the original 3 document." Lamont has to show it to me, and now you and I 4 can have a fight in the trial before the JP as to the 5 authenticity of the document, but I have had the 6 opportunity to look at the document and satisfy myself 7 that what you filed with the judge is what the document 8 contains. That's the purpose of the rule. 9 HONORABLE TERRY JENNINGS: Yeah, and if you 10 can prove it's a forgery, it's tampering with government 11 records case. 12 MR. MUNZINER: Yeah, I mean, it preserves 13 evidence and it's a healthy rule. My only question was 14 the rule as written doesn't limit itself to scanned 15 documents that were filed. 16 CHAIRMAN BABCOCK: Gene, did you have a 17 comment? 18 MR. STORIE: Yeah, I did, and I think it was 19 maybe what Richard just mentioned, that the last sentence 20 there seems pretty open as to what a document is. In 21 theory that could allow inspection of your opponent's 22 computer if it was an original word processing document. 23 I think it certainly means just a scanned document or 24 paper document. 25 CHAIRMAN BABCOCK: Carlos. D'Lois Jones, CSR (512) 751-2618 16274 1 MR. LOPEZ: Is the real issue we're arguing 2 about is how faithful a copy it is when it gets somehow 3 turned into the electronic version that Lamont suggests 4 should be the court version? I mean, if it is limited to 5 scanned documents I guess I fail to see -- unless the 6 argument is that it's not a faithful copy, in which case 7 any -- 8 HONORABLE TOM LAWRENCE: This whole section 9 deals with scanned documents. We've got original 10 signatures on a docket, and you have to be able to get 11 that document somehow to the court so you scan it. That's 12 what this section deals with are those documents. 13 MR. JEFFERSON: What document is not a 14 scanned document? 15 MR. LOPEZ: I think that's a great idea, but 16 why shouldn't -- 17 HONORABLE STEPHEN YELENOSKY: Pleading. 18 HONORABLE TOM LAWRENCE: Well, a pleading. 19 HONORABLE TRACY CHRISTOPHER: Pleadings, you 20 put an electronic signature on it versus signing it and 21 scanning it. The only things we're talking about here is 22 like an affidavit attached to a summary judgment or 23 something else that, you know, you're supposed to keep the 24 original of it for inspection. 25 HONORABLE TERRY JENNINGS: All this seems to D'Lois Jones, CSR (512) 751-2618 16275 1 be doing, and correct me if I'm wrong, is it's allowing 2 you to see something that you would have normally seen 3 under the old ways of doing it when you just filed a hard 4 copy. 5 HONORABLE TOM LAWRENCE: Exactly. 6 HONORABLE TERRY JENNINGS: It's just 7 allowing you to see the hard copy that would have normally 8 been filed. 9 HONORABLE TOM LAWRENCE: In other words, 10 you're saying if you scan something, you can't destroy 11 your original. You have to keep the original in case the 12 other party wants to look at the original, and then in a 13 paper world it's going to be filed so it's going to be in 14 the court's record. You wouldn't have to worry about it. 15 They're just saying don't destroy the original signed 16 document. If you scan it electronically, keep it on file. 17 MR. LOPEZ: Which is only meaningful or 18 necessary unless there's some much bigger problem, which 19 is that the person that's going to the court's file is 20 somehow not trustworthy. 21 CHAIRMAN BABCOCK: Frank. 22 MR. LOPEZ: You're going to have a blue 23 signature instead of a black one when it gets scanned 24 anyway. 25 MR. GILSTRAP: Judge Lawrence, where does it D'Lois Jones, CSR (512) 751-2618 16276 1 say that you've got to maintain the original? 2 HONORABLE TOM LAWRENCE: Well, I think the 3 implication, "A party may request the court in which the 4 matter is pending to allow inspection of a document 5 maintained by the filer." 6 MR. GILSTRAP: When you take that sentence, 7 that sentence is always true. I can ask the Court to see 8 a privileged document. It just doesn't have to give it to 9 me. I mean, that second sentence is bad. It needs to be 10 rewritten, and the fact that it's in the old rules I don't 11 think is a reason to keep it, not to change it. If there 12 is a requirement that you maintain the original, I think 13 it ought to be there. 14 CHAIRMAN BABCOCK: Yeah, I think we've 15 wandered away from stare decisis on the old rules, so -- 16 MR. MUNZINGER: The rule as written only 17 requires the party to request the court to order an 18 examination. It doesn't require an examination or 19 production. It doesn't waive privilege. To me at least 20 it's a healthy thing to allow litigants to look at 21 underlying documents that have been filed with the court 22 which are claimed to be valid which may not be valid, if I 23 had a sincere doubt about it. We have FEDs that have lots 24 of money involved in them, you can, and that's a serious 25 litigation, and it's not a -- something you do in your D'Lois Jones, CSR (512) 751-2618 16277 1 sleep. 2 CHAIRMAN BABCOCK: Justice Jennings. 3 HONORABLE TERRY JENNINGS: Well, I think 4 Frank's point is well-taken about the idea that there 5 ought to be something in the rule requiring the party 6 who's filing the scanned image to either file it, a hard 7 copy with the court, or the original with the court or 8 maintain it for inspection, and maybe that could be a 9 sentence added to subparagraph (a). 10 HONORABLE TRACY CHRISTOPHER: Just maintain 11 it. We don't want it filed separately. That would be a 12 mess. 13 HONORABLE TERRY JENNINGS: A document such 14 as that may be filed only as a scanned image and then the 15 second sentence, "The party must maintain the original in 16 their files or for inspection." 17 HONORABLE TOM LAWRENCE: Well, these 18 e-filing rules don't change the rules of procedure. I 19 mean, you wouldn't be able to destroy a document like this 20 under the rules of procedure, would you? I mean -- 21 HONORABLE TRACY CHRISTOPHER: The original 22 is in the court file, though. You only keep a copy under 23 a traditional system. Now, you, the filer, have the 24 original, and the original needs to be made available for 25 inspection. Possibly. D'Lois Jones, CSR (512) 751-2618 16278 1 HONORABLE TOM LAWRENCE: So you want to put 2 a sentence in saying that any scanned document must be 3 maintained? 4 MR. GILSTRAP: No, just certain scanned 5 documents, like the ones that have an affidavit. 6 HONORABLE TRACY CHRISTOPHER: Just the 7 verified, notarized, acknowledged -- 8 HONORABLE TERRY JENNINGS: Under 9 subparagraph (a), "such a document must be maintained by 10 that party for inspection" or words to that effect. 11 CHAIRMAN BABCOCK: Carlos. 12 MR. LOPEZ: I guess if there's a raised 13 seal, you know, like the old days, there I see a physical 14 difference, but, absent that, I think the only difference 15 is the color of the ink. I mean, when you scan it it 16 looks like it's black. 17 HONORABLE TERRY JENNINGS: Well, if it's a 18 forgery and you have reasonable suspicion that it's a 19 forgery, I mean, your expert is going to want to look at 20 that original signature. 21 HONORABLE TRACY CHRISTOPHER: Signed 22 document, right. 23 MR. LOPEZ: In terms of how hard he pressed? 24 HONORABLE TERRY JENNINGS: Yeah, the 25 forensics person is not going to be able to tell from a D'Lois Jones, CSR (512) 751-2618 16279 1 copy of a scanned image. 2 CHAIRMAN BABCOCK: Munzinger, then 3 Jefferson. 4 MR. MUNZINGER: Traditional subordination 5 rules ought to apply if it's an evidentiary issue, which 6 is the way I see this problem coming up. Lamont files his 7 lease, and I question the signature. The first sentence 8 says I could ask the judge to make him file the document 9 in the traditional manner. That's one way I could protect 10 myself. I still would be dealing with a photocopy of the 11 lease because people don't give up their original leases. 12 "A party may request the court in which the matter is 13 pending to allow the inspection of a document maintained 14 by the filer." 15 "I want to see the original, Judge, and I 16 want my forensics guy to look at the signature." 17 "Oh, well, I don't have that anymore." 18 Spoliation. 19 HONORABLE TERRY JENNINGS: Well, it's not 20 just spoliation, though. If someone is filing a forged 21 document there's also been a crime committed, and you need 22 to be -- if you can get that hard copy with the signature 23 on it and get proper expert testimony you can prosecute 24 them for tampering with or filing a forged document with 25 the court. D'Lois Jones, CSR (512) 751-2618 16280 1 HONORABLE STEPHEN YELENOSKY: Aren't we 2 talking about things that are created for the purpose of 3 litigation like a verification on a temporary injunction? 4 Those aren't the things that usually get done 5 fraudulently. It's the contract, and that's the discovery 6 material, not this. 7 CHAIRMAN BABCOCK: Lamont. 8 HONORABLE TERRY JENNINGS: I don't 9 understand what the controversy is about making that party 10 who wants to take advantage of this system, wants to file 11 the scanned image, I don't understand the controversy or 12 the onerous burden placed upon them to make them maintain 13 the original. 14 MR. JEFFERSON: To me -- 15 HONORABLE TERRY JENNINGS: For future 16 inspection. 17 MR. JEFFERSON: To me the question is what 18 is a court document, and if we say that the person 19 submitting the document has to -- has an obligation to 20 maintain custody of it then that says that what's filed 21 with the court is not as important as what he has in his 22 possession. What he has in his possession trumps what's 23 filed with the court, right? I think what -- the 24 suggestion that I'm hearing is what you've -- once it's -- 25 I mean, if you scan it, scanned it and submitted it to the D'Lois Jones, CSR (512) 751-2618 16281 1 court, to me that ought to be the document as it appears 2 in court. If you think that there's something wrong with 3 that, you have many other ways to attack the weight of the 4 evidence that has been submitted to -- 5 HONORABLE TERRY JENNINGS: I'm not talking 6 about the weight of the evidence. What is the onerous 7 burden that's being placed on the person that's taking 8 advantage of this rule of saying if you're going to take 9 advantage of this rule for your ease, where is the burden 10 on you to maintain that original in your file? 11 MR. JEFFERSON: My concern is not a burden 12 concern. I'm not concerned about the burden that it 13 places on a litigant. My concern is the suggestion that 14 what's filed with the court is somehow less -- has less 15 integrity because you have to refer to some source outside 16 of the court document to determine whether or not it's 17 authentic. 18 CHAIRMAN BABCOCK: Carlos, then Judge 19 Yelenosky. 20 MR. LOPEZ: I'm kind of with Lamont in the 21 sense of that if it's that important maybe for those types 22 of papers we ought to mandate that the original get filed 23 with the court, because let me ask you a question. What 24 if in the old days before electronic filing you've got 25 this original signature that is somehow going to become D'Lois Jones, CSR (512) 751-2618 16282 1 forensically important? Are you going to file that with 2 the court clerk and hope that it doesn't get lost, 3 misplaced, et cetera? 4 MR. ORSINGER: No. 5 MR. LOPEZ: You're going to file a copy. 6 HONORABLE STEPHEN YELENOSKY: How do 7 verifications ever become forensically important? 8 MR. LOPEZ: Back then before there was 9 electronic filing, was there some rule that told us we had 10 a duty to maintain the original? 11 HONORABLE STEPHEN YELENOSKY: But these are 12 verifications. This isn't -- tell me when you've ever had 13 a forensic examination of a verification on a temporary 14 injunction or anything like it. 15 HONORABLE TERRY JENNINGS: This is any 16 document containing a signature. Not just a verified 17 pleading. Any document. 18 HONORABLE STEPHEN YELENOSKY: Does it say 19 that? 20 HONORABLE TERRY JENNINGS: It says 21 "documents containing signatures." 22 MR. LOPEZ: I'm thinking about the 23 underlying contract in FED, for example. You know, in the 24 old days before electronic filing if I wanted to file a 25 copy because I wanted to make sure the original was D'Lois Jones, CSR (512) 751-2618 16283 1 intact -- 2 HONORABLE STEPHEN YELENOSKY: Well, but you 3 can get it through discovery. 4 MR. LOPEZ: If it exists. 5 HONORABLE STEPHEN YELENOSKY: Right. But 6 we're talking about filed documents, not if it also exists 7 as a discovery material then you're entitled to discover 8 it and look at the original. If we're talking about 9 something that only exists as a pleading, like a 10 verification, I don't know of any instance in which 11 somebody would look forensically at that kind of 12 verification, because all that ever happens is people 13 forget to verify and they come back and do it again. 14 CHAIRMAN BABCOCK: Well, and I can imagine 15 some circumstances, it might be rare, but if an affidavit 16 is filed in support of one party's position and later, you 17 know, somebody goes and talks to that witness and the 18 witness says, "I never signed any affidavit, what are you 19 talking about?" You might want to forensically look at 20 that signature to, number one, make sure it's a forgery to 21 substantiate what the witness says, "I never signed that," 22 and number two, figure out who did sign it. 23 MR. LOPEZ: But how is that original less 24 important now that we do electronic filing than it ever 25 was? D'Lois Jones, CSR (512) 751-2618 16284 1 CHAIRMAN BABCOCK: Well, it's not any less 2 important, but isn't the point that it's being filed 3 electronically and so somebody in order to examine it 4 would need access to the original. 5 MR. LOPEZ: They needed access to the 6 original back in the old days, too. 7 HONORABLE TRACY CHRISTOPHER: It was in the 8 court's file. 9 MR. LOPEZ: No, not necessarily. 10 HONORABLE TRACY CHRISTOPHER: Well, that's 11 what we're talking about, is things that are filed in the 12 court's file that have this that's verified, notarized, 13 acknowledged, or sworn to. 14 HONORABLE STEPHEN YELENOSKY: So it isn't 15 just signed. 16 CHAIRMAN BABCOCK: Maybe I'm missing it, but 17 isn't the problem that my affidavit, an example would be 18 if it's filed electronically the original would not be in 19 the court file? 20 HONORABLE TRACY CHRISTOPHER: Right. 21 CHAIRMAN BABCOCK: Right? So you want to 22 keep it and be able to inspect it. That's the point, 23 right? 24 HONORABLE TRACY CHRISTOPHER: Right. 25 HONORABLE TOM LAWRENCE: Right. D'Lois Jones, CSR (512) 751-2618 16285 1 CHAIRMAN BABCOCK: I'm slow. Sorry. 2 MR. LOPEZ: I mean, I've been in a lot of 3 cases where, real estate, the underlying contract was 4 Exhibit A, and it wasn't an original that was filed with 5 the court because they didn't trust the court to keep the 6 original. They filed a copy, and if you wanted to see the 7 original signature you had to get it through discovery or 8 whatever. 9 HONORABLE STEPHEN YELENOSKY: Well, if it's 10 evidence then you're usually not -- I mean, if you're 11 filing it with the court it's subject to being examined. 12 People don't throw away the contract that's the subject of 13 the dispute, so I don't know why you need the rule. 14 MR. LOPEZ: And I'm not sure they're going 15 to start now. 16 HONORABLE TRACY CHRISTOPHER: No, but -- 17 sure they will. I mean, the intent is we're not talking 18 about an original contract here. The intent behind this 19 was a particular pleading or document that had to be 20 verified, like an affidavit in support of a summary 21 judgment or certain pleadings that have to be verified, 22 and those are the sort of things that unless I require you 23 to keep the original and make it available for inspection, 24 there would be no other original anywhere else, but that 25 was the intent. Now, perhaps it's not well written in D'Lois Jones, CSR (512) 751-2618 16286 1 terms of an original contract between the parties that was 2 notarized. 3 CHAIRMAN BABCOCK: Jody. 4 MR. HUGHES: I was just going to suggest 5 some language that might address some of these concerns. 6 At the end of the first sentence, inserting a new sentence 7 that says, "When a document filed as a scanned image under 8 Rule 3.2(a) or (b)" -- I'm sorry, "When a document is 9 filed as a scanned image under Rule 3.2(a) or (b), the 10 filer must maintain the original document," and then 11 adding a second sentence immediately after that that says 12 -- or replacing the last sentence in the existing rule 13 that starts "A party may request," replacing that with a 14 sentence that says, "Upon a party's request a court shall 15 require a party that electronically filed a scanned image 16 of a document under Rule 3.2(a) or (b) to allow another 17 party to inspect the original document." 18 CHAIRMAN BABCOCK: Lamont. 19 MR. JEFFERSON: Have we been down this road 20 before, Bill? I mean, with respect to just copies? Was 21 there a time when you had to have the original signed 22 document available in order to have a copy even admissible 23 in evidence? I mean, isn't this that same principle? 24 HONORABLE TRACY CHRISTOPHER: Lamont, when 25 you file a motion for summary judgment and you have an D'Lois Jones, CSR (512) 751-2618 16287 1 affidavit attached you file the original with the court, 2 and now we're just requiring you to keep that so somebody 3 can look at it. 4 MR. JEFFERSON: You don't file your -- I 5 mean, in Federal court, for instance -- 6 HONORABLE TRACY CHRISTOPHER: You sure 7 should. 8 MR. JEFFERSON: -- you file an electronic 9 version of your motion, and it's as good as the original. 10 HONORABLE TRACY CHRISTOPHER: It's not in 11 state court. That's the point. We're trying to keep the 12 authenticity of a signature through this point. 13 CHAIRMAN BABCOCK: Elaine. 14 PROFESSOR CARLSON: Rule 45 that deals with 15 pleadings does have at the last paragraph dealing with 16 copies, Lamont, in response to your question, "When a copy 17 of a signed original is tendered for filing copy, the 18 party or his attorney filing such copy is required to 19 maintain a signed original for inspection by the court or 20 any party incident to the suit should a question be raised 21 as to its authenticity." 22 MR. JEFFERSON: "Should a question be raised 23 as to its authenticity," and I think the default ought to 24 be there is no question raised as to authenticity, so 25 presume the court document to be the document unless there D'Lois Jones, CSR (512) 751-2618 16288 1 is a reasonable reason to doubt that. 2 MR. LOPEZ: Elaine, can you tell us where 3 you're reading from? 4 PROFESSOR CARLSON: I'm sorry. It's Rule 5 45, which deals with pleadings, in the Texas Rules of 6 Civil Procedure, the last paragraph. 7 CHAIRMAN BABCOCK: Frank. 8 MR. GILSTRAP: I don't think we ought to get 9 hung up on what's the real court document. I mean, if 10 I -- if someone produces a pleading with my name on it I 11 can say it's a forgery, I mean, and that is the court 12 document, but I can still question it. I think we're 13 dealing with a situation in which we've got an unfamiliar 14 procedure. We've got electronically produced copies of 15 documents, and we're in some cases allowing electronic 16 signatures, and we've got a bunch of pro se litigants, and 17 it seems to me that, you know, maybe there might be some 18 capacity for chicanery here, and maybe we ought to do -- 19 maybe we put these in place and it's no problem, but, you 20 know, I'm a little concerned by it, and I -- it doesn't 21 bother me to require the litigants to maintain the 22 original signature. You know, it's not forever. It's 23 just through the JP court case. 24 CHAIRMAN BABCOCK: Jody, could you read your 25 language again? D'Lois Jones, CSR (512) 751-2618 16289 1 MR. HUGHES: It was to add a new sentence 2 after the existing first sentence. 3 CHAIRMAN BABCOCK: On 3.2? 4 MR. HUGHES: 3.2(d). 5 CHAIRMAN BABCOCK: Right. 6 MR. HUGHES: That says, "When a document is 7 filed as a scanned image under Rule 3.2(a) or (b)," comma, 8 "the filer must maintain the original document" and then 9 replacing -- adding a new sentence immediately after that 10 that replaces the last sentence of existing 3.2(d) that 11 says, "Upon a party's request a court shall require a 12 party that electronically filed a scanned image of a 13 document under Rule 3.2(a) or (b) to allow another party 14 to inspect the original document." 15 CHAIRMAN BABCOCK: What's wrong with that? 16 Judge Yelenosky. 17 HONORABLE STEPHEN YELENOSKY: Well, nothing 18 wrong with that. I was just going to argue against 19 myself. I was with Lamont and then I thought about this. 20 The verification, the other side should be able to rely on 21 the fact that what you say and verify to in a summary 22 judgment or whatever, if you're lying is enforceable as 23 perjury, and I don't think you could ever enforce a 24 perjury claim against somebody solely based on an 25 electronic version. Because, I mean, how would you, if D'Lois Jones, CSR (512) 751-2618 16290 1 their lawyer filed it? They can just say, "I never 2 authorized that." 3 CHAIRMAN BABCOCK: Carlos. 4 MR. LOPEZ: I think perhaps if everybody is 5 philosophically agreed perhaps a quicker logistical fix 6 would be to make it clear that when you electronically 7 file a copy it is a copy for purposes of Rule 45 that 8 Elaine just read and then you have the safeguard that's in 9 Rule 45 which says -- which is news to some people -- that 10 you have to keep it. It says you have to keep it. 11 CHAIRMAN BABCOCK: That's another way to do 12 it. What do you think about Jody's language? 13 HONORABLE TRACY CHRISTOPHER: Good. 14 MR. LOPEZ: I mean, that's fine. I just 15 think let's not -- Rule 45 is there. Maybe there is a 16 disagreement as to whether Rule 45 covers this scenario. 17 It says if a copy is filed the party has to keep it. 18 CHAIRMAN BABCOCK: Jody. 19 MR. HUGHES: My only -- I think that's a 20 good point, but I think Frank made an excellent point 21 about the prevalence of pro se litigants here, and I think 22 the more we could spell it out in this rule, a pro se 23 litigant is not necessarily going to have a copy of Rule 24 45 or go look at it; whereas, if it's actually in these 25 rules, you know, they would be more likely to follow it. D'Lois Jones, CSR (512) 751-2618 16291 1 HONORABLE TERRY JENNINGS: Chip? 2 CHAIRMAN BABCOCK: Yes. 3 HONORABLE TERRY JENNINGS: Just one more 4 comment about what Jody and Frank were talking about these 5 pro se litigants and so forth. 6 CHAIRMAN BABCOCK: Right. 7 HONORABLE TERRY JENNINGS: I don't want to 8 open up another can of worms here, but since this is going 9 to be a pilot program and the idea is to adopt rules that 10 could be applied throughout the state eventually, has any 11 thought been given to limiting this situation, allowing 12 this kind of filing only where a party is represented by 13 counsel? 14 CHAIRMAN BABCOCK: That would be another can 15 of worms for sure. 16 HONORABLE TOM LAWRENCE: You're going to cut 17 out one of the biggest constituencies of e-filing, which 18 are apartment complexes which are typically not 19 represented by counsel. 20 HONORABLE TERRY JENNINGS: But that's 21 probably, you know, as this program goes forward, you 22 know, if you want to just kind of stick your foot in the 23 bathtub so to speak to test the waters and then after it's 24 up and running and working and then maybe allow it. 25 HONORABLE TOM LAWRENCE: No, we like to jump D'Lois Jones, CSR (512) 751-2618 16292 1 all the way in. 2 HONORABLE TERRY JENNINGS: Okay. Just a 3 suggestion. 4 CHAIRMAN BABCOCK: Okay. Any more comments 5 about Jody's language? Justice Gaultney. 6 HONORABLE DAVID GAULTNEY: I like Jody's 7 language rather than a reference to a rule of procedure 8 for another reason, and I'm not sure the rules apply, Tom, 9 do they, to small claims court cases? 10 HONORABLE TOM LAWRENCE: Well, some Rules of 11 Procedure apply and some don't. 12 HONORABLE DAVID GAULTNEY: I think for that 13 reason as well I would like to have the language specific. 14 MR. LOPEZ: Rule 45 by its terms is limited 15 to district and county courts. Yeah, I was assuming we 16 could kind of -- 17 CHAIRMAN BABCOCK: Okay. Let's move on to 18 4.1. 19 HONORABLE TOM LAWRENCE: All of part 4 are 20 filing mechanics. This is the mechanics by which you file 21 this, and in all regards every one of those or most of 22 these are set by statute or set by procedure through 23 DIR/TexasOnline. The only change is where it used to say 24 "county clerk" or "district clerk" and now it says 25 "justice of the peace." Otherwise they're identical. D'Lois Jones, CSR (512) 751-2618 16293 1 CHAIRMAN BABCOCK: Comments about 4.1? 2 HONORABLE TOM LAWRENCE: Pardon me? 3 CHAIRMAN BABCOCK: Are there any? Carl. 4 MR. HAMILTON: Is there somewhere in 5 here where it -- oh, yeah. DIR, Department of Information 6 Resources. Okay. I found it. 7 MR. GILSTRAP: Chip? 8 CHAIRMAN BABCOCK: Yes, Frank. 9 MR. GILSTRAP: I mean, it's not mechanics. 10 It's electronics. I think we ought to take the 11 "mechanics" out of there and just call it "filing." 12 Really. I mean, you don't need it. 13 CHAIRMAN BABCOCK: You want to call it 14 "filing electronics"? 15 MR. GILSTRAP: Just call it "filing." 16 CHAIRMAN BABCOCK: Just call it "filing." 17 Okay. 18 HONORABLE TOM GRAY: "How to file." 19 CHAIRMAN BABCOCK: Richard, surely you have 20 comments. 21 MR. ORSINGER: I have a comment on 4.3. 22 I'll just wait. 23 CHAIRMAN BABCOCK: Well, bide your time 24 then. 25 HONORABLE TOM GRAY: This may be a good D'Lois Jones, CSR (512) 751-2618 16294 1 section in which to add the clarification that fee-free 2 filing by indigent litigants is not available when 3 utilizing electronic filing. 4 CHAIRMAN BABCOCK: Say that again, Judge, 5 I'm sorry. 6 HONORABLE TOM GRAY: We were talking about 7 earlier whether or not a indigent person could use this 8 filing mechanism, and due to the fee requirements for the 9 convenience fee there appears to be no mechanism through 10 which you could do that. This may be a good place to put 11 a specific statement that says, "Fee-free filing by 12 indigent litigants is not available when utilizing 13 electronic filing." 14 CHAIRMAN BABCOCK: It was that phrase, 15 "fee-free filing" that -- 16 HONORABLE TOM GRAY: Easy for you to say. 17 HONORABLE STEPHEN YELENOSKY: Say that ten 18 times. 19 HONORABLE TOM GRAY: But just a thought, if 20 they want to make it clear. 21 CHAIRMAN BABCOCK: Okay. What's everybody 22 think about that? Judge Lawrence, is that a good idea? 23 HONORABLE TOM LAWRENCE: Well, it doesn't 24 hurt anything to put it in. 25 CHAIRMAN BABCOCK: Well, it does if you're D'Lois Jones, CSR (512) 751-2618 16295 1 not going to -- if you're going to allow indigents to 2 electronically file, but if you're going to do that then 3 you're going to have to have some other rules. 4 HONORABLE TOM LAWRENCE: Well, I don't think 5 the Legislature has provided for indigents to have the fee 6 waived, so it's kind of a moot point. They're not going 7 to file because they're not going to get it past 8 TexasOnline or the service provider. 9 CHAIRMAN BABCOCK: Yeah. Okay. So do you 10 think it would be a good idea to mention something here? 11 HONORABLE TOM LAWRENCE: Well, it may be 12 helpful to some indigents. There is really a relative 13 small percentage of people trying to file original suits 14 as indigents in the justice courts. 15 CHAIRMAN BABCOCK: Okay. 16 HONORABLE TOM LAWRENCE: I mean, we didn't 17 even think about putting something -- I think we talked 18 about indigents and then we didn't put anything in there 19 because you can't get past the threshold of TexasOnline. 20 CHAIRMAN BABCOCK: Buddy. 21 MR. LOW: Chip, I don't think we can just 22 strike and say "filing" because this is "filing 23 electronically" and there are other type filings. So you 24 would have to put "electronically" or something, because 25 "filing" just the traditional way wouldn't be covered in D'Lois Jones, CSR (512) 751-2618 16296 1 this, so I would be careful when I strike out a word to 2 see what you've got when you do it. 3 CHAIRMAN BABCOCK: Yeah. Good point. All 4 right. Any other questions about 4.1? Let's go on to 5 4.2. 6 HONORABLE TOM LAWRENCE: 4.2 is identical to 7 the county and district court rules. This deals with the 8 digital signatures, explains the mechanism for how that 9 occurs, and that's done through -- you register through 10 TexasOnline and then there is a code I guess that you're 11 given, correct, Mike? 12 MR. GRIFFITH: That's correct. 13 HONORABLE TOM LAWRENCE: When you file you 14 would input that code and then your digital signature with 15 the computer. 16 CHAIRMAN BABCOCK: Okay. Richard Orsinger. 17 MR. ORSINGER: Tom, I notice that throughout 18 these rules there are a lot of cross-references to the 19 Rules of Civil Procedure, which made sense in the district 20 and county context, but here in 4.2(b) we cross-refer to 21 Rules 8, 13, and 57; 4.3 cross-refers to Rule 145; 4.6 to 22 Rule 57; 4.7 to Rule 45; 5.1 to Rule 21a. Are all of 23 those valid cross-references in the context of JP 24 procedure? 25 HONORABLE TOM LAWRENCE: Well, that's a good D'Lois Jones, CSR (512) 751-2618 16297 1 question. Rule 523 says that the rules of the county and 2 district courts will apply insofar as they're applicable. 3 I don't know what that means. I've never been able to 4 find out from anybody what that actually means. You can 5 make an argument that these rules could be applicable. 6 Some specifically in county and district specifically say 7 county or district. Others you tend to apply and some you 8 don't apply. Where there's a void in the five hundred 9 series you sometimes apply those. Sometimes the five 10 hundred series are specific, so I would have to say 11 probably not, to answer your question. 12 MR. ORSINGER: Well, then we may be giving 13 you the authority you've been looking for, at least as to 14 the rules we specifically cross-refer to because these 15 rules essentially incorporate those rules, and so that 16 would theoretically mean they apply. However, some of 17 them are very generic. Like 5.3, "In addition to any 18 other requirements imposed by the Texas Rules of Civil 19 Procedure." I think there is one other real generic 20 referral to the entire rules, yeah, in 4.2(b), "imposed by 21 the Texas Rules of Civil Procedure or any other law." 22 So I'm totally okay with incorporating those 23 procedures into JP actions, but I think we should just be 24 sure that that's what we intend to do because I think 25 we're effectively doing that, and then when you globally D'Lois Jones, CSR (512) 751-2618 16298 1 refer to all other rules or any other rule, then I don't 2 know, that may be incorporating all of the rules as to 3 that issue. 4 HONORABLE TOM LAWRENCE: Well, I think 13 5 and 57 are okay. And that's all we've got to so far, 6 right? 7 MR. ORSINGER: Yeah, that's right. 8 HONORABLE TOM LAWRENCE: I think 13 and 57 9 are okay. 10 PROFESSOR DORSANEO: Eight's okay, too, 11 right? 12 HONORABLE TOM LAWRENCE: Pardon me? 13 PROFESSOR DORSANEO: Attorney in charge 14 rule, not a great rule, but 8's okay, too, right? 15 HONORABLE TOM LAWRENCE: Yeah. I think 8's 16 okay. I don't think that would cause a problem. 17 CHAIRMAN BABCOCK: Frank. 18 MR. GILSTRAP: Well, I mean, you know, we 19 are preparing these for use by pro se litigants and 20 probably a cross-reference isn't too helpful to them. Do 21 the existing JP court rules contain this type of frequent 22 cross-referencing? I know that the rule says that the 23 district and county court rules apply to a certain extent, 24 but if you go through them are you referred to Rule 8 or 25 Rule 15? D'Lois Jones, CSR (512) 751-2618 16299 1 HONORABLE TOM LAWRENCE: No. No. There are 2 a few references to some of the earlier rules in the five 3 hundred series, but I think that's only for summary 4 judgments, I think, and that may be it. No, there's not 5 much in the way of cross-reference. 6 MR. GILSTRAP: Probably it's too late to do 7 anything about this, but, you know, it seems to me that if 8 we are going to have pro se litigants use these that's not 9 a good thing to be doing, is frequently referencing the 10 Rules of Civil Procedure. 11 CHAIRMAN BABCOCK: Buddy. 12 MR. LOW: Chip? 13 CHAIRMAN BABCOCK: Yeah. 14 MR. LOW: This rule refers to a signature of 15 attorney. It doesn't say Rule 57 refers to signature of 16 attorney or a party representing himself, so this kind of 17 implies that this only applies to an attorney. It would 18 apply to a person, a pro se as well, would it not? 19 HONORABLE TOM LAWRENCE: Well, I think it 20 says "filer." 4.2 refers to "filers," and we define 21 "filers" under the rule, under the definition. 22 MR. LOW: Okay. But so -- 23 HONORABLE TOM LAWRENCE: "A person who files 24 a document including an attorney." 25 MR. LOW: A pro se could not file D'Lois Jones, CSR (512) 751-2618 16300 1 electronically if they wanted to? 2 HONORABLE TOM LAWRENCE: Yes. Yes, they 3 could. Pro se could file. 4 MR. LOW: But here it says "been deemed the 5 signature of the attorney." What deems it the signature 6 of the pro se? 7 MR. ORSINGER: Well, look at Rule 2.2. The 8 term "attorney" means an individual litigant if they're 9 pro se. 10 MR. LOW: Okay. 11 MR. ORSINGER: So we kind of defined our way 12 around that problem, haven't we? 13 HONORABLE TOM LAWRENCE: Yeah. That's why 14 we put that in there was for the pro ses. 15 MR. LOW: Okay. All right. 16 MR. JACKSON: Chip? 17 CHAIRMAN BABCOCK: Yeah, David. 18 MR. JACKSON: I'm looking in our 19 definitions, and we have this digitized signature, and I'm 20 reading this definition of that, but yet over here we talk 21 about digital signatures -- 22 CHAIRMAN BABCOCK: Right. 23 MR. JACKSON: -- and those are two 24 completely different animals that we haven't defined 25 "digital signature," and that's probably a more important D'Lois Jones, CSR (512) 751-2618 16301 1 definition than a digitized signature. 2 CHAIRMAN BABCOCK: Do we define that? 3 HONORABLE TOM LAWRENCE: Is there a 4 difference to TexasOnline? Would you elaborate? 5 MR. GRIFFITH: The digitized signature is to 6 be a graphic representation of your signature or a photo 7 basically that you append to the document. The digital 8 signature is by virtue of having logged on and 9 authenticated yourself you don't have to actually put a 10 wet signature on the document. 11 MR. HUGHES: And just to clarify, that's -- 12 in the end of the last sentence of 4.2(a) defines "digital 13 signature," whereas, "digitized signature" is defined in 14 2.1(c). 15 MR. GILSTRAP: They're different? 16 MR. HUGHES: They are different. 17 MR. JACKSON: There is a big difference. 18 MR. GILSTRAP: Well, pro ses will pick that 19 up. 20 CHAIRMAN BABCOCK: Okay. Anything else on 21 4.2? All right. 4.3. 22 HONORABLE TOM LAWRENCE: 4.3, the timing and 23 filing of the documents. (a) talks about filing it 24 through an EFSP to TexasOnline 24 hours a day. That's the 25 same as the county and district clerk. (b) is I think the D'Lois Jones, CSR (512) 751-2618 16302 1 same -- no, is this where we made a change in that? Let's 2 see. 3 MR. HUGHES: The big change was in (e). 4 HONORABLE TOM LAWRENCE: Yeah, I think (b), 5 (c), and (d) -- (e) was where we -- where we decided to -- 6 what was the change in (e), Jody? 7 MR. HUGHES: That was the one where the -- 8 it had to do with the court having an active duty to make 9 a decision on whether the document is filed and the 10 problem being that JP courts, due to their different 11 levels of staffing, would not be as a practical matter 12 able to be processing documents within that time period, 13 and so we eliminated the first sentence of the old rule 14 that said "not later than the first business day after 15 receiving the document the clerk has to decide whether the 16 document is accepted for filing." 17 We kept the one-day period in place in order 18 to satisfy the parties and lawyers who wanted to know that 19 their document that they e-filed was -- you know, that it 20 was properly filed, but we took away the burden on the 21 court to do it -- to actually examine it within the day 22 and just made it a default rule that if it's not rejected 23 within a day then it's deemed accepted. 24 HONORABLE TOM LAWRENCE: Yeah, some of the 25 larger courts had a concern that their clerks would have D'Lois Jones, CSR (512) 751-2618 16303 1 to sit there and read every document within a one-day time 2 period and accept them or reject them, and they complained 3 that they just didn't have the time for their clerks to do 4 that with their case load. We removed it from being an 5 affirmative duty. If you don't reject it it's deemed to 6 be accepted. 7 MR. HUGHES: Or actually deemed filed. We 8 got rid of "accepted" because we also had a big debate 9 about what does it mean for a document to be accepted for 10 filing, and we thought it would be simpler to use the term 11 "filed." 12 CHAIRMAN BABCOCK: Andy. 13 MR. HARWELL: Tom, I think (b) did change. 14 I remember that on the county and district side that it 15 was deemed filed at the time it -- that TexasOnline 16 received the document. Is that not -- and the clerk had 17 like 10 days -- was that changed? 18 HONORABLE TOM LAWRENCE: On (b)? 19 MR. HARWELL: On (b). 20 MR. HUGHES: Yes, that 10-day provision was 21 taken out. 22 MR. HARWELL: I remember the 10-day, and I 23 thought also that it was deemed filed whenever TexasOnline 24 received it, not the vendor that was sending it to 25 TexasOnline. Yes. D'Lois Jones, CSR (512) 751-2618 16304 1 CHAIRMAN BABCOCK: Buddy. 2 MR. GRIFFITH: The way that -- I'm sorry. 3 Go ahead. 4 MR. LOW: No, the Appendix C reflects the 5 changes; is that correct? Isn't that the original draft 6 applied to district and county courts and then you've 7 shown -- you've struck out and underlined what you've 8 added. Isn't that the purpose of Appendix C, to see what 9 the changes were? 10 HONORABLE TOM LAWRENCE: Well, Appendix C is 11 kind of the draft after our meeting, wasn't it, Jody? 12 MR. HUGHES: No, Buddy is correct, I think. 13 Appendix C is a redlined version showing the differences 14 between our recommendation and the district and county 15 court template. 16 MR. LOW: So if you have a question of 17 what's changed, I've been looking at that, and if I'm 18 looking at the wrong thing, well, that won't be the first 19 time. 20 MR. HUGHES: You're correct, Buddy. 21 MR. LOW: Okay. 22 CHAIRMAN BABCOCK: Yeah, Bill. 23 PROFESSOR DORSANEO: Accepting other 24 comments about (e)? 25 CHAIRMAN BABCOCK: Yes. D'Lois Jones, CSR (512) 751-2618 16305 1 PROFESSOR DORSANEO: I really have a 2 question. What's that second sentence all about? I don't 3 see anything in Rule 145 that talks about handling 4 documents other than a sentence that says, "Upon the 5 filing of the affidavit the clerk must docket the action, 6 issue citation, and provide such other customary services 7 as provided any party." I don't understand what that 8 sentence is meant to mean. The justice of the peace, and 9 I realize it says the same, says "the clerk" in their 10 template, but I don't understand it. 11 MR. HUGHES: I think the purpose of it was 12 to say, basically, that you -- under these rules, the 13 clerk, in this case it's actually the court, is not to 14 treat electronically filed documents that are filed by an 15 indigent filer differently solely because they're 16 electronically filed, if they had the wherewithal to 17 e-file but were otherwise indigent. 18 PROFESSOR DORSANEO: I think it ought to say 19 that then. Because when you go to look at Rule 145, 20 you're not -- it doesn't really say what it implies, that 21 "by documents" -- I mean, it says you're going to handle 22 the case the same way and presumably until the contest is 23 sustained or whatever, but it doesn't fit together well. 24 MR. HUGHES: Well, I thought -- and maybe 25 this wasn't very well done, was that 145 has a number of D'Lois Jones, CSR (512) 751-2618 16306 1 provisions in it, and rather than try to incorporate all 2 of them we were trying to incorporate the whole rule by 3 reference, but if there's pieces of it that are 4 particularly important, maybe we should look at 5 incorporating that. 6 CHAIRMAN BABCOCK: Are you going to have a 7 potential conflict by what you -- what we talked about 8 adding earlier where you say that if you're indigent, 9 don't bother messing with these rules? 10 MR. HUGHES: Well, we didn't have that in 11 the original. 12 CHAIRMAN BABCOCK: I know, but if you add 13 that is this going to be in conflict with that? 14 MR. HUGHES: Yes. 15 CHAIRMAN BABCOCK: Seems like it is. Gene. 16 MR. STORIE: I think there is another 17 cross-reference issue, too, because Rule 572 provides an 18 affidavit of inability for an appeal, so you may want to 19 add that in. 20 CHAIRMAN BABCOCK: Right. 21 HONORABLE TOM LAWRENCE: But I think this 22 refers to the initial filing. 23 MR. STORIE: Does it? 24 CHAIRMAN BABCOCK: Richard Orsinger. 25 MR. ORSINGER: On a slightly different D'Lois Jones, CSR (512) 751-2618 16307 1 point, does subdivision (e) fit with subdivision (b), 2 because I always thought if you electronically file that 3 you're deemed filed when it's received by the EFSP, but 4 (e) suggests to me that it's not deemed filed until after 5 the court accepts it or one day has passed, and if you're 6 filing an answer on Monday morning, that could make a 7 difference, and so I'm wondering if -- are these two 8 different timetables; or does it appear to be that we have 9 deemed filing occurring at two different times; or does 10 (e) mean that it's not deemed filed by extending (b) 11 unless the court says it's deemed? I mean, what if the 12 court doesn't doesn't accept it? Is it deemed filed or is 13 it not deemed filed? So is there a -- is there a cross? 14 MR. HUGHES: I think the way they work 15 together is that (b) says for purposes of your timing of 16 filing it, its filing time is when it's received by the 17 EFSP, but (e) gives the court a day to reject it even if 18 it was timely filed for other reasons. Although, the task 19 force, we had a pretty good debate about what are the 20 reasons a court or a clerk -- because they're acting 21 really in the capacity that a clerk acts in in other 22 courts, what reasons they could legitimately sort of 23 bounce a document. 24 MR. ORSINGER: Well, let's assume that 25 somebody files through an EFSP and the justice court does D'Lois Jones, CSR (512) 751-2618 16308 1 nothing. What day is it deemed filed? Is it deemed filed 2 on the day it was received by the EFSP or is it -- 3 PROFESSOR DORSANEO: Yes. 4 MR. ORSINGER: -- deemed filed one business 5 day later? 6 MR. HUGHES: The former. 7 PROFESSOR DORSANEO: Former. 8 MR. ORSINGER: Why is that? 9 MR. HUGHES: Under (b). 10 MR. ORSINGER: Under (b), right. But it 11 says, "If the justice of the peace court fails to reject 12 or accept a document within one business day the document 13 is deemed to have been filed." 14 MR. HUGHES: But it doesn't say it's deemed 15 to have been filed on that -- 16 MR. ORSINGER: It's retroactive to when it 17 was filed with the EFSP? 18 MR. HUGHES: Correct. 19 MR. ORSINGER: Okay. 20 MR. HUGHES: I mean, if that's not clear 21 maybe we should -- 22 MR. ORSINGER: It may be just me. 23 PROFESSOR CARLSON: I think we are clear. 24 MR. WATSON: It's not clear. 25 CHAIRMAN BABCOCK: Justice Hecht. D'Lois Jones, CSR (512) 751-2618 16309 1 HONORABLE NATHAN HECHT: Let me ask, I know 2 we debated this before, but now that we've had some 3 experience, has a clerk ever refused to accept a filing 4 within a day or however much time they've got? 5 HONORABLE TOM LAWRENCE: I remember you had 6 said something about that, and I asked that question at 7 the task force meeting, and the answer was, yes, that they 8 had refused acceptance because it's not the right county 9 or something like that. That was one of the examples 10 given I remember, Jody. Do you remember anything else 11 or -- 12 MR. HUGHES: That was the one I remember. 13 MR. HARWELL: What about fees were not paid? 14 MR. HUGHES: The fees, though -- 15 HONORABLE TOM LAWRENCE: The fees aren't a 16 problem because TexasOnline collects those and remits them 17 to the county. So if you don't pay the fees properly then 18 it never gets to the county. 19 MR. HUGHES: And aren't those picked up by 20 the EFSP, and if the party doesn't ultimately pay the EFSP 21 that's an issue between those two? I mean, the county is 22 not the one who gets left holding the shorter stick, it's 23 the EFSP. 24 MR. MARTIN: If someone misfiles with the 25 wrong jurisdiction, I think it's considered that they made D'Lois Jones, CSR (512) 751-2618 16310 1 the mistake and those fees are not refundable; and just 2 the county not accepting it, I mean, "Well, this isn't our 3 jurisdiction, you should have been filing over here." 4 That's a matter for the courts to make the ruling on. 5 With us, it's -- we were going to deliver it to wherever 6 they told us to deliver it. 7 HONORABLE TOM LAWRENCE: Generally, it's the 8 practice in the justice courts for the clerks not to 9 operate as a gatekeeper. We tell them simply to accept 10 for filing; and if there's a problem it will be resolved 11 later; but we typically don't allow the clerks to tell the 12 parties, "No, you can't file this. We're going to reject 13 it," so usually if they come in and want to file something 14 then we accept it, and if there's a problem with it it's 15 resolved later. 16 CHAIRMAN BABCOCK: Bill. 17 PROFESSOR DORSANEO: I'm going back to that 18 145 sentence. I think it should say, "The justice of the 19 court must accept electronically transmitted documents in 20 connection with a 145." 21 MR. HUGHES: Instead of "shall handle"? 22 PROFESSOR DORSANEO: Instead of "shall 23 handle," because I think that's what has to happen. You 24 can't just throw them away. 25 MR. GILSTRAP: I handled it. D'Lois Jones, CSR (512) 751-2618 16311 1 PROFESSOR DORSANEO: Well, 145, it's more in 2 connection with 145 because 145 doesn't say anything about 3 how to handle documents except for that thing that I read, 4 which says you act as if somebody paid until you get this 5 resolved. 6 CHAIRMAN BABCOCK: Skip. 7 MR. WATSON: I don't understand the point of 8 the last sentence. I'm sorry. I was trying to figure out 9 why it was changed from "accepted" to "filed" and then I 10 was trying to figure out why is it in there. I mean, if 11 it's -- if from (b) it's filed, it's filed, and I -- I 12 don't know why we're saying that any -- what have I 13 missed? 14 CHAIRMAN BABCOCK: If the JP court fails to 15 accept a document within one business day the document is 16 deemed to have been filed, but if they don't accept it 17 then they don't accept it right away. 18 MR. HUGHES: The idea was sort of that 19 district and county clerks -- oh, go ahead. 20 CHAIRMAN BABCOCK: No, go ahead. 21 MR. HUGHES: They serve a role as acting as 22 this gatekeeper function that's sort of harder for the JP 23 courts to do because they may have a clerk that's their 24 employee, but they don't necessarily have this separate 25 office set up. And there are certain circumstances where D'Lois Jones, CSR (512) 751-2618 16312 1 obviously a document can be filed and that doesn't imply 2 anything about what the court is going to grant relief 3 under or anything later on, but there are also 4 circumstances where a district or county clerk would not 5 allow somebody to file something, maybe because of a fee 6 issue without an indigency certificate or maybe because it 7 was so obviously in the wrong jurisdiction or something, 8 they would say, "Hey, bud, you need to take this to the 9 other county." 10 MR. WATSON: What does that have to do with 11 filing it? If it's filed in the wrong jurisdiction, then 12 it's filed. The court just doesn't have the authority to 13 do anything except sign an order saying, "I'm dismissing 14 this for want of jurisdiction," but I don't understand 15 where the notion of accepting and filing comes in. To me 16 it's an alien concept to me, and I know it's there for a 17 reason, but for the life of me I can't figure it out. 18 MR. HUGHES: Well, in terms of accepting, we 19 tried to -- I think for the reasons you're discussing, 20 we -- the task force voted to eliminate accepting, the 21 concept of accepting, because it raises this question of 22 what does it mean to accept the document. So the 23 accepting language came from the old template. It's not 24 in, I don't think, the language of the JP. 25 MR. WATSON: I'm going back to Richard's D'Lois Jones, CSR (512) 751-2618 16313 1 question except I'm going a step further. I mean, to me 2 (e) and (b) are inherently contradictory. It's either 3 filed when it's done or it's filed a day later retroactive 4 to when it was done, and I still don't get why we're 5 saying it's filed a day later retroactive when it was 6 originally done. What is the object of that sentence? 7 CHAIRMAN BABCOCK: Well, part of it I can 8 understand, but I understand your point. But if I hit the 9 send button and it goes and it goes through and I get a 10 receipt that says, you know, it's been filed and the JP a 11 couple of hours later looking at this and says, "No, no, 12 no, no, no, I'm not going to accept this," and hits some 13 button that says, "This is unfiled," then it's unfiled; 14 but if the JP waits 24 hours and, you know, 28 hours after 15 it's been filed hits the button and says, "This is 16 unfiled," then this rule says, "No, huh-uh, that's not 17 right." 18 MR. WATSON: Well, when would you do that? 19 Let's say it's in the wrong court, he doesn't have 20 jurisdiction. He suddenly gets jurisdiction after 24 21 hours when he doesn't have it otherwise? 22 HONORABLE TOM LAWRENCE: Well, let's say a 23 case is filed and it's not signed. The Small Claims Court 24 Act says that the petition has to be signed, so what if 25 it's filed and not signed? Arguably that could be a D'Lois Jones, CSR (512) 751-2618 16314 1 situation where you might not accept it. 2 MR. WATSON: Wouldn't -- 3 CHAIRMAN BABCOCK: But Skip's point about 4 not accepting is I hit my send button, and it goes -- 5 MR. WATSON: It's either there or it's not. 6 CHAIRMAN BABCOCK: Yeah, and if you refuse 7 to accept it then there's no one day about it. It's just 8 not accepted right away. 9 HONORABLE TOM LAWRENCE: Well, but the 10 concept is if you walk up to the counter then the clerk is 11 immediately going to see that there's a problem and tell 12 you "no." So you don't get a free pass to try to slip 13 something through just because you do it electronically. 14 There's got to be some opportunity to correct that 15 problem. 16 HONORABLE NATHAN HECHT: But Skip's point is 17 you do get a free pass. 18 HONORABLE TOM LAWRENCE: Pardon? 19 HONORABLE NATHAN HECHT: As I hear it, it is 20 that you do get a free pass because if nobody catches it 21 for 24 hours then you can do what the guy who walked up to 22 the window couldn't do. 23 MR. WATSON: I'm just saying you ought to be 24 able to enter an order saying that we're kicking this back 25 at any time, but you do need to enter an order to do that, D'Lois Jones, CSR (512) 751-2618 16315 1 you see. 2 HONORABLE TOM GRAY: What about that Federal 3 stamp that goes over the file stamp that just says 4 "unfiled"? I mean, they have them. I've seen them. 5 MR. WATSON: Oh, I've gotten them. 6 CHAIRMAN BABCOCK: They've got a bunch of 7 them. Carlos and then -- 8 MR. LOPEZ: The passage of 24 hours in Judge 9 Lawrence's example doesn't automatically put a signature 10 on the document. It's still a defective document that we 11 can argue about when it was really filed. I mean, what if 12 -- what if the answer -- the litigant says, "Sure, it was 13 signed, I don't know what -- I don't know what their 14 clerks did with it, but it was signed when I filed it." 15 How do you prove it wasn't if you rejected it? I mean, 16 that document that you've got in your file now says, "Here 17 it is." I mean, you've just rejected it. You kind of 18 have -- you open up a swearing match about what was and 19 wasn't intended to be filed. 20 CHAIRMAN BABCOCK: Richard, then Bill. 21 MR. ORSINGER: I know that my comment 22 applies equally to the district court rules, but when you 23 produce or present a document to the district or county 24 clerk and they reject it, they'll just hand it right back 25 to you and you know that there is some deficiency, but I D'Lois Jones, CSR (512) 751-2618 16316 1 don't see any mechanism in here for the party that filed 2 electronically to be advised that a document has been 3 rejected by the court. 4 HONORABLE TOM LAWRENCE: Well, there is in 5 the county and district court rules. It's the same 6 language. We took this language -- 7 MR. ORSINGER: I know. But my criticism or 8 my concern is the same for these rules as the other rules, 9 even though they're already enforced and there's nothing 10 we can do about them, and that is how does someone know 11 that their document has not been accepted when it's been 12 filed electronically since we have no -- we have nobody 13 handing it back to them and we have nobody sending an 14 e-mail and we have nobody sending a letter and -- 15 HONORABLE NATHAN HECHT: (g). 16 MR. ORSINGER: -- we have nobody making a 17 phone call. 18 HONORABLE NATHAN HECHT: (g). The answer is 19 (g). 20 HONORABLE TOM LAWRENCE: Mike can answer 21 that. 22 MR. ORSINGER: (g)? Okay. 23 HONORABLE TOM LAWRENCE: Mike can answer 24 that. 25 MR. GRIFFITH: The question on how does a D'Lois Jones, CSR (512) 751-2618 16317 1 filer know if a document has been filed or rejected, if 2 it's rejected the clerk, or in this case the court, will 3 send a comment back to the filer telling them why that 4 document has not been accepted. 5 MR. ORSINGER: At the e-mail address listed 6 on the document then? 7 MR. GRIFFITH: Right. 8 MR. HARWELL: And you're saying it goes back 9 to the filer. Does it go through TexasOnline and then 10 back to the EFSP? 11 MR. GRIFFITH: That's correct. Yes. 12 MR. HARWELL: Is there a time lag between 13 when it leaves TexasOnline and could be sent back to 14 the -- 15 MR. GRIFFITH: Nothing significant, no. You 16 know, it's a matter of seconds. It generates an e-mail 17 message back to the filer. 18 CHAIRMAN BABCOCK: Okay. Who's hungry? 19 Everybody's hungry. Let's take a lunch break. 20 (Recess from 12:31 p.m. to 1:39 p.m.) 21 CHAIRMAN BABCOCK: Judge Lawrence, if you'll 22 stand at ease for just two seconds, we have a -- we're 23 going to try to jump over to item six real quickly, even 24 though Jeff Boyd is not here right now, but maybe he'll be 25 here in a second. As everybody knows, a couple of months D'Lois Jones, CSR (512) 751-2618 16318 1 ago, a couple of meetings ago, Chief Justice Jefferson and 2 Justice Hecht asked us to look at different ways we might 3 be able to make the civil justice system in Texas more 4 user-friendly and stop this outflow of dispute resolutions 5 to alternatives such as arbitration or other forms of ADR 6 and, frankly, cases being sent to other states, so Jeff's 7 subcommittee has been looking at different things. 8 They have looked at the rocket docket, 9 focusing on the Eastern District of Virginia and the 10 Eastern District of Texas and other rocket dockets, and 11 we've discussed that two or three times at our meetings, 12 and it looks like there's not a whole bunch of enthusiasm 13 among the broad committee or even the subcommittee for 14 that proposal. Last week Justice Jefferson and Justice 15 Hecht asked -- Chief Justice Jefferson and Justice Hecht 16 asked Jeff's subcommittee to look at this complex 17 litigation, complex case issue that is used in some 18 states. I'm personally familiar with that system in 19 Philadelphia, where the Philadelphia Court of Common Pleas 20 has two judges who are designated for, quote, complex 21 cases. 22 If anybody else is on the subcommittee, you 23 can tell me, but I think there has been no substantive 24 work done on that yet, but that we had a telephone 25 conference with Jeff, me, Justice Hecht, and Chief Justice D'Lois Jones, CSR (512) 751-2618 16319 1 Jefferson Wednesday or Thursday of last week; and the 2 Chief asked the subcommittee to just look and study and 3 see what other states are doing in that regard and report 4 back to us, hopefully by our October meeting; and since 5 that time I've gotten a couple of letters from members of 6 the Legislature saying they think it's kind of a bad idea 7 since they considered it, it was very controversial, and 8 they didn't implement it into legislation and, you know, 9 what the hell are we doing studying it if they thought it 10 was a bad idea. 11 I know the Chief and Justice Hecht have 12 talked to Senator Wentworth and told him what we're doing, 13 and I've talked to some people that have called me, so 14 that's where we stand on it. Is there anybody here from 15 the subcommittee in Jeff's absence? Yeah, Judge 16 Yelenosky, and, Judge Bland, was that your arm -- 17 HONORABLE JANE BLAND: Yes. 18 CHAIRMAN BABCOCK: -- that went up? You got 19 any comments about this? Justice Bland, you're the -- 20 HONORABLE STEPHEN YELENOSKY: She's senior 21 to me, I think she should speak. 22 CHAIRMAN BABCOCK: You can -- you're the 23 appellate judge. 24 HONORABLE JANE BLAND: The subcommittee was 25 uncertain of our charge, and we had lots of reservations D'Lois Jones, CSR (512) 751-2618 16320 1 about jumping in and creating some rule when there was 2 demonstrated legislative inaction, and so -- is that fair, 3 Stephen? 4 HONORABLE STEPHEN YELENOSKY: Absolutely. 5 HONORABLE JANE BLAND: So we -- I think 6 that's why Jeff called you, to get some guidance about 7 whether we were to do research, which I think we're more 8 than happy to do, and report back research or whether you 9 wanted advice about a rule or actually just wanted us to 10 draft a rule. 11 CHAIRMAN BABCOCK: Yeah. Yeah. There was 12 considerable misinformation, undoubtedly spread by the 13 ill-informed press, that we were going to take up a rule 14 today, and that was never -- that was never the case 15 unless you guys work quicker than our subcommittees are 16 customarily working. 17 HONORABLE JANE BLAND: Well, our committee's 18 charge might have given that misimpression because the 19 memos that we were reviewing were more looking like rule 20 memos than research and discussion memos, but we are happy 21 to do whatever the chair asks us to do. 22 CHAIRMAN BABCOCK: Well, and I'm just doing 23 what the Court asks us to do, so just so there is clarity 24 here, you guys look at the issue of complex case referrals 25 and see what other states are doing and whether they're D'Lois Jones, CSR (512) 751-2618 16321 1 doing it by rule or by legislation or a combination, 2 combination thereof, and see if it's working anywhere. As 3 I say, I've got experience with it in Philadelphia where 4 it seemed very visentine to me, but maybe that's just 5 because I was an outsider. 6 MR. KELLY: Chip? 7 CHAIRMAN BABCOCK: Yeah, Hugh Kelly. 8 MR. KELLY: The Legislature never voted on 9 the bill because it was killed in the latter stages 10 through a point of order. 11 CHAIRMAN BABCOCK: Through a point of order? 12 MR. KELLY: A point of order. 13 CHAIRMAN BABCOCK: Okay. 14 MR. KELLY: There was no vote, no anything. 15 The bill was not going to pass because it just had 16 tremendous hair on it, but -- 17 CHAIRMAN BABCOCK: Unlike yourself. 18 MR. KELLY: But one other point I might add, 19 during the research I did and connected with that there 20 may be about 15 states that have something like this, and 21 all of them did it by rule. Legislature has never done 22 it. So they also tell you that you shouldn't take -- you 23 shouldn't take your furniture-making to a guy with a 24 chainsaw. So -- 25 CHAIRMAN BABCOCK: I've always tried to D'Lois Jones, CSR (512) 751-2618 16322 1 follow that rule myself. Judge Yelenosky. 2 HONORABLE STEPHEN YELENOSKY: Well, in 3 looking at it, one of the things we have to do in looking 4 at other states is see where there are parallels and where 5 there are not, and so that's one thing we've already 6 discussed. I don't know how many of those 15 states have 7 an elected judiciary, for instance. 8 CHAIRMAN BABCOCK: Yeah, well, Philadelphia, 9 for example, they elect their judges. I mean Pennsylvania 10 does, and the way Philadelphia has organized its court 11 systems, they've got a special guy for class actions and 12 they've got two guys for complex cases and then they have 13 a number of people for commercial cases, and it's very -- 14 it's very bizarre the way they do it, but anyway, Richard. 15 MR. ORSINGER: I'm going largely on what 16 I've been told, but I just want to lay this out for the 17 subcommittee's assessment and to also explore the charge. 18 What you said was how do they handle referrals on the 19 complex cases, and there is an assumption there that the 20 case needs to be assigned around because it's complex and 21 it's in a certain court, and that certainly is what Senate 22 Bill 1204 did. It made the assumption that somebody was 23 in a position to decide that an elected judge was not 24 knowledgeable enough to handle a certain kind of case. I 25 don't know how they would determine that. I don't know D'Lois Jones, CSR (512) 751-2618 16323 1 whether the judges are going to take a test. 2 CHAIRMAN BABCOCK: Well, if you were a 3 judge, for example. 4 MR. ORSINGER: Yeah, okay. All right. And 5 anyway, there is a lot of problems with Senate Bill 1204, 6 but it's my understanding that in the Senate, as this bill 7 went through the committee process it evolved into a 8 different approach to complex litigation, which was if a 9 case is complex and a court is overwhelmed that they were 10 going to provide additional resources for that judge, who 11 is a duly constitutionally elected or whatever, to handle 12 the complex litigation, and that it actually passed the 13 Senate, I have been told. Someone here may know 14 differently, and I don't want the record to be inaccurate 15 if you know, but it's my understanding that as the bill 16 evolved away from a transfer concept to a send resources 17 to help the judge concept, that it actually got the vote 18 of the Senate. 19 So it goes over to the House, and as it's 20 evolving through the House it picks up a bunch of 21 amendments by people who would like to have their own pet 22 projects stuck on the back of that bill, and by the time 23 it gets to the floor of the House -- which, by the way, is 24 an achievement of its own for the bill to get to the floor 25 of the House -- it had so much stuff on it that it died to D'Lois Jones, CSR (512) 751-2618 16324 1 a point of order because there was a lot of stuff stuck in 2 there that wasn't in the caption or whatever the rule is 3 where you can kill it on a point of order. 4 So I'm not sure that we should say that the 5 Legislature has taken no action. Admittedly there is no 6 bill that passed both houses and was signed by the 7 Governor, but it does appear that the Senate passed a 8 bill, and that's noteworthy. I think that whatever 9 version the Senate voted out is worth looking at, and 10 secondly, verify that what I'm saying is right in the 11 House, and if I am right, then there does seem to be a 12 legislative willingness to consider that the solution to a 13 particular judge being overwhelmed by a certain kind of 14 lawsuit is to give him or her additional resources rather 15 than to set up a super committee of peers to decide that 16 they're not knowledgeable enough to handle the case and 17 then send somebody they consider to be smarter or more 18 knowledgeable. Now, Lisa, you were going to say 19 something. 20 MS. HOBBS: Well, I would just add to your 21 description of what the engrossed version that passed the 22 Senate, Senate Bill 1204, included in that judicial 23 resources provision was the allowance for a visiting 24 judge, an active or retired judge, to take over that case, 25 but I believe that it required the consent of the trial D'Lois Jones, CSR (512) 751-2618 16325 1 judge. 2 HONORABLE STEPHEN YELENOSKY: That's 3 correct. 4 CHAIRMAN BABCOCK: Yeah, Bill. 5 MR. WADE: If I might say something, I 6 visited at some length with my partner, Senator Duncan, 7 yesterday about this, and he said that I had his 8 permission to state to the committee that his opinion of 9 that is far from a dead issue in the Legislature, and he 10 feels that they made a great deal of progress, and he 11 thinks it's, you know, something that they're going to 12 revisit and get something done on. 13 CHAIRMAN BABCOCK: Judge -- Justice Bland, 14 and then Buddy. 15 HONORABLE JANE BLAND: If I could get some 16 guidance or if we could get some guidance about which 17 direction you want us to look. I mean, obviously I think 18 you want us to research other jurisdictions and see how 19 it's done other places, look at the interplay between the 20 fact that we're constitutionally elected officials. Do 21 you want us to look at solutions that are more along the 22 line of the final product that came out, which involved 23 resources and a visiting judge with the consent of the 24 trial judge or some earlier version of that bill? Because 25 I think there probably wasn't as much concern on the D'Lois Jones, CSR (512) 751-2618 16326 1 subcommittee with the latter, but we were thinking that 2 our charge was more to look at the former. 3 CHAIRMAN BABCOCK: Well, not as far as I was 4 concerned, but I'll defer to Justice Hecht on that issue, 5 but it seems to me that we ought to see how it works in 6 other places, and Judge Yelenosky raises a good point. I 7 mean, it might be different in a jurisdiction that elects 8 its judges versus appoints them. For example, in the 9 Federal system there's -- I know I've got experience with 10 a case where they just took one judge from a Federal 11 district court and gave him like these 200 cases. They 12 gave him an extra law clerk, they gave him extra 13 resources, they dedicated a U.S. magistrate to him, but 14 they, quote, took all those cases from other judges, 15 which, you know, may be appropriate, maybe not, but that's 16 the type of thing that goes on. But, Justice Hecht, does 17 that -- 18 HONORABLE NATHAN HECHT: Yeah, I mean, the 19 concern -- the Court's concern is that we investigate 20 everything we can to be sure that the civil justice system 21 is operating as efficiently and as helpfully to the public 22 as it should; and just as with the rocket docket, when we 23 started, sort of the initial inquiry is what does this do, 24 how does it help, what are its objectives, and what are 25 its benefits and detriments; and then if we had gotten D'Lois Jones, CSR (512) 751-2618 16327 1 further, which we didn't, it would have been to work 2 hammering out the details, like many would, point by point 3 by point, how it would operate in a given place. 4 So I think we start the same way here and 5 just look at the question of how cases which are -- which 6 require more judicial time and energy, are they being 7 handled as efficiently as they could be and not really 8 look at any particular version of the legislation, but 9 just try to look at the problem. 10 And I talked to Senator Wentworth about this 11 yesterday, and it may be, as they seem convinced now or 12 some seem convinced now, that this is a legislative matter 13 rather than a rule matter; but as most of the members of 14 this committee will recall, we have been called upon in 15 the last several years to help implement legislative 16 policies through rules that we had been studying for a 17 year or two before that directive came; and if we hadn't 18 been, it really would not have been possible to comply 19 with the request within the time frame specified. 20 What we're working on now, the e-filing is 21 an example of that. If we didn't have the templates for 22 the district and county courts already working in 23 essentially 30 counties and have some idea what the 24 experience was, it would not be possible to provide for 25 electronic filing at 835 courts with all sorts of D'Lois Jones, CSR (512) 751-2618 16328 1 jurisdiction, all sorts of counties between now and 2 January the 1st. So we need to be sure that we're 3 thinking about this and have discussed it enough that if 4 it does look appropriate at some point to propose rule 5 solutions that we're in a position to do that. 6 Now, one other factor is that the bar, State 7 Bar of Texas, wants to look at this, too, and I understand 8 has formed or will shortly form a group to do so; and Gib 9 Walton, the president of the bar, came by this week and 10 said that they expect to work very hard at this, not just 11 from a research kind of position, but also from trying to 12 bring together differing views on the issues and see where 13 they can find consensus. So they sort of have a broader 14 view of the problem, if there is one, than others might, 15 and I think because the bar has resources to do that and a 16 number of people who are willing to do that, we should 17 take advantage of their work and monitor it and not try to 18 duplicate it or do work that they're already going to 19 undertake, and Jeff Boyd was on our conference call this 20 week, and he's amenable to being part of the State Bar 21 group and performing that function. 22 So I think our goal is to stay abreast of 23 those developments and to have in mind the advantages and 24 disadvantages of various approaches and whether they 25 require legislation or don't and so we would be in a D'Lois Jones, CSR (512) 751-2618 16329 1 position to assist in this process if called upon to do 2 so. 3 CHAIRMAN BABCOCK: Jeff Boyd has joined us. 4 Jeff, sorry, we jumped your committee here. 5 MR. BOYD: I don't want to be here for this 6 discussion anyway. 7 CHAIRMAN BABCOCK: That's what we figured. 8 Anything you want to add to what Justice Hecht said? 9 MR. BOYD: I'm sorry that I was gone. I had 10 another meeting I couldn't miss, and I only caught the 11 very end of what he said, but so I don't want to repeat 12 whatever may have been said. The assignment was relayed 13 to us, and I put a draft memo together for the committee 14 to chew on, and we had our first meeting as a subcommittee 15 and, as we always do, raised issues about, now, what is it 16 exactly we're being asked to do and why are we being asked 17 to do it. 18 We have started gathering background 19 information as a subcommittee to -- as subcommittee 20 members to understand the various issues that this concept 21 has raised and in particular understand what other states 22 have done in addressing those issues, and that's really 23 all we've done, and then we did have the conference call 24 with Justice Hecht and Chief Justice Jefferson for me to 25 clarify further what -- and what I heard Justice Hecht D'Lois Jones, CSR (512) 751-2618 16330 1 just say is what he told me on the phone a couple of days 2 ago. 3 CHAIRMAN BABCOCK: And while you were out 4 Hugh Rice Kelly said that he had done some research on 5 this, and so he may be able to shortcut what you-all have 6 done. Tom, and then Carl. 7 MR. RINEY: I'm on the State Bar committee, 8 as is Alex, Alistair Dawson, perhaps other members from 9 this committee. It was actually formed during the last 10 legislative session as part of the litigation section 11 that's now being continued. It's a large committee that 12 has a lot of enthusiasm. There have been countless 13 numbers of e-mails this week on the topic when they found 14 out this committee was going to consider it. 15 By the way, it's much like deciding to 16 modify Social Security. It generates a lot of interest 17 rather quickly, but I think it's a good committee. I 18 think they have very much the intent of being very 19 thorough in their study, and I think the proposal of Jeff 20 working with that committee is a very good idea. 21 CHAIRMAN BABCOCK: When you get done with 22 this would you take on Social Security and get that fixed? 23 MR. ORSINGER: But get us out of Iraq first. 24 CHAIRMAN BABCOCK: Yeah, right, get us out 25 of Iraq. D'Lois Jones, CSR (512) 751-2618 16331 1 MR. HAMILTON: I'm not sure that I 2 understand what the problem is that you referred to. Is 3 it one of resources to handle complex cases or one of the 4 ability of the judge or just what is it? 5 HONORABLE NATHAN HECHT: I don't know. I 6 don't know enough about it to know. I know in some 7 states, as Chip has said and as came out during the 8 legislative session, that there are states that have more 9 specialized courts than Texas does, and I don't know if 10 that's a good idea or a bad idea, if it helps move cases 11 that are otherwise a burden on the system. I know when I 12 was on the trial bench in Dallas if somebody got stuck 13 with a big case and the judge didn't want the case, we 14 talked among ourselves and transferred it to somebody that 15 did. We set up an asbestos docket because we didn't think 16 it made sense for 13 of us to be handling asbestos cases, 17 before there was an MDL. When the South Texas Nuclear 18 Power Plant case came to Dallas County for trial because 19 of transfer from Travis County, we had a number of 20 meetings trying to find a judge who wanted to spend four 21 months working on nothing but that case and how were we 22 going to help that judge with his docket if that happened. 23 So I don't know if it's resources or maybe 24 there's not a problem at all, but if more resources would 25 help expedite those cases or prevent inefficiencies, waste D'Lois Jones, CSR (512) 751-2618 16332 1 of time, then that's something we ought to report back to 2 the Legislature. If any other changes in procedures or 3 statutes could help that part of our system then I think 4 we need to explore those, but at this point, it's hard to 5 know whether anything needs to be done and if so, what, as 6 far as I'm concerned. 7 CHAIRMAN BABCOCK: Anybody have any 8 experience with a specialized court like that anywhere 9 else in the country? 10 MR. GILSTRAP: We've all got experience with 11 family law and criminal law courts. Those are 12 specialized. 13 MR. ORSINGER: You know, occasionally in 14 some of the counties that I practice in -- 15 CHAIRMAN BABCOCK: All you had to do was say 16 "family court." 17 MR. ORSINGER: Occasionally in some of the 18 counties I practice in they've decided that they would 19 specialize the juvenile cases in one judge, and in my 20 experience that hasn't been done by the Legislature 21 designating the court. It's been more one of the local 22 district judges would volunteer. I think, Steve, that 23 you-all went through this phase in Travis County where you 24 had somebody to step up and take all of the juvenile cases 25 for awhile? I think they've done that in San Antonio a D'Lois Jones, CSR (512) 751-2618 16333 1 couple of times, and somebody does it until they get 2 burned out on it and then they go back to spreading it 3 around again, and there is no doubt that if you are 4 familiar with Child Protective Services or something like 5 that that there's going to be a lot of efficiencies 6 because you'll see the same professionals, you'll see the 7 same prosecutors and whatnot, but then there's also 8 implications about our governments and about the elected 9 process and constitutionality and that kind of thing. 10 CHAIRMAN BABCOCK: Lisa, and then Hugh. 11 MS. HOBBS: I would just point out that -- 12 and there maybe others, but at least Travis County and 13 Bexar County have some sort of local complex litigation 14 local rule kind of procedure whereby they designate 15 something as complex and it gets some sort of special 16 treatment. 17 MR. ORSINGER: But it gets assigned out at 18 random. It doesn't get assigned to what a committee of 19 five judges thinks may be the best judge for the case, and 20 pick from those who are sitting, those who are retired, or 21 those who -- I don't know whether under this bill you 22 could have even lost an election and still be qualified -- 23 be better qualified than the assigned judge. 24 MR. BOYD: Do we have -- Judge Yelenosky, we 25 have a complex -- D'Lois Jones, CSR (512) 751-2618 16334 1 HONORABLE STEPHEN YELENOSKY: Yes. Local 2 Rule 2.6 essentially allows anybody to ask the local 3 administrative judge, Judge Dietz, to specially assign a 4 case to a judge, and Judge Dietz then makes that 5 determination on his own or in consultation with other 6 judges, and if it is to be assigned, there is a rotation 7 that's kept by staff, and it's simply the next judge who's 8 up to get a 2.6 assignment. 9 MR. BOYD: But it's really a feature of the 10 central docket. It's a way to take it off the central 11 docket and have it assigned to a particular judge, not 12 really a complex case special judge type of assignment. 13 HONORABLE STEPHEN YELENOSKY: Yes. It is to 14 take it off the central docket, and it is not based on the 15 assumption that any of the ten sitting civil district 16 judges have more resources or capabilities. It's simply 17 to take it off the central docket and allocate it at 18 random to one particular judge because the case merits 19 having one particular judge all the way through for 20 whatever reason. 21 MR. BOYD: And the exception to that is that 22 at one point Judge Paul Davis was designated as the 23 asbestos judge, similar to what happened in Dallas, where 24 he handled all the pretrial matters on asbestos cases. 25 CHAIRMAN BABCOCK: Okay. Hugh, you had your D'Lois Jones, CSR (512) 751-2618 16335 1 hand up a long time ago. 2 MR. KELLY: Well, I was going to say in the 3 1970s I don't know how they went about doing it, but only 4 certain district judges in Travis County heard complex 5 administrative appeals. Certain judges, I suspect it was 6 preference because those cases could be very boring if you 7 don't have any background in, say, rate base of Houston 8 Lighting & Power Company or rate base of gas pipeline and 9 company, but there were just a certain number of those 10 judges that heard those cases. They would be assigned and 11 they would stick to it, so they were doing something that 12 was complex. 13 HONORABLE STEPHEN YELENOSKY: I can't speak 14 to the 1970s because I was in junior high and high school. 15 CHAIRMAN BABCOCK: Thanks for pointing that 16 out. Frank. 17 MR. GILSTRAP: It's been said. 18 CHAIRMAN BABCOCK: Okay. Steve Bresnen has 19 been here. You want to -- I know we're passing out your 20 letter. You want to -- 21 MR. BRESNEN: Yes, sir, I just want to say 22 briefly because you've got the letter, and I know this 23 e-filing deal is going to bog you down. I apologize I 24 missed the early part of the conversation, because I 25 thought you were still bogged down, but I'm here. D'Lois Jones, CSR (512) 751-2618 16336 1 CHAIRMAN BABCOCK: This is a welcome relief, 2 so -- 3 MR. BRESNEN: I'm here on behalf of the 4 Family Law Foundation. We opposed Senate Bill 1204 as 5 filed during the session. I worked -- followed that bill 6 all the way through. One of the reasons we opposed it is 7 because there are ways under current law that you-all are 8 all identifying now to address these by local elected 9 judges making choices rather than having an administrative 10 judge somewhere up the chain of command pull the case from 11 them. The approach that we supported had broad support in 12 the Legislature. I don't think the support that the bill 13 as filed in the complex case provisions or the approach 14 outlined in the document that I saw that had talked about 15 what the assignment was, I don't think that had very much 16 support at all in the Legislature. The Legislature's 17 approach was to direct additional resources to the courts 18 when they needed them. 19 There was recognition that some courts might 20 need additional briefing attorneys, file cabinets, 21 whatever, in the case of -- in a given case, and that is 22 the approach that we support. We work with elected judges 23 all over the state, our members do. We think it's most 24 appropriate for them to exercise the jurisdiction as 25 granted to them by the constitution and statutes of the D'Lois Jones, CSR (512) 751-2618 16337 1 state and not have a case plucked administratively from 2 them. Thank you. 3 CHAIRMAN BABCOCK: Buddy. 4 MR. LOW: We had one case that lasted four 5 months. It was in Federal court, and we had one judge 6 that ruled on all objections, preliminary matters. They 7 do that the day before, so there were no objections during 8 the trial. We had another judge that took care of the 9 legal points, and we had a trial judge, so but the trial 10 judge was the same trial judge that we started out with, 11 so we just added, and it went rather smoothly. 12 CHAIRMAN BABCOCK: Great. Anybody else? 13 Okay. Tracy. Sorry. 14 HONORABLE TRACY CHRISTOPHER: Well, I think 15 what's important to note in all of the ideas that have 16 been thrown around is that they for the most part 17 originated from the judges and not from the parties, and I 18 would be opposed to any system where the parties were in a 19 position to change their judge. 20 CHAIRMAN BABCOCK: Okay. I don't -- well, 21 maybe that's part of this. I know there are many 22 jurisdictions that the parties get to strike judges. I 23 mean, they get -- 24 HONORABLE TRACY CHRISTOPHER: I would be 25 opposed to that, too. D'Lois Jones, CSR (512) 751-2618 16338 1 CHAIRMAN BABCOCK: I'm not saying it's a 2 good thing, but there are a lot of jurisdictions where you 3 can do that. Justice Bland. 4 HONORABLE NATHAN HECHT: In fact, Chief 5 Justice Phillips was making a speech last week, just 6 coincidentally, he said there were nine states that allow 7 strikes of acting judges. I was not aware of that, and 8 California was one. I was not aware of the other ones. 9 CHAIRMAN BABCOCK: Illinois is another one. 10 Justice Bland. 11 HONORABLE JANE BLAND: I was just going to 12 say that a couple of my trial court colleagues suggested 13 that we should first take a look at developing a complex 14 litigation appellate panel. 15 They were kidding. I'm laughing. It's a 16 joke. 17 CHAIRMAN BABCOCK: I was thinking maybe you 18 were running for chief of that court. 19 HONORABLE JANE BLAND: No, to get away from 20 me. 21 HONORABLE NATHAN HECHT: That's what the 22 word "reversed" is used for. 23 HONORABLE JANE BLAND: Oh, they did. Their 24 thinking is, you know, before we look at taking any cases 25 away from trial judges, you know, what about the appellate D'Lois Jones, CSR (512) 751-2618 16339 1 judges, so -- 2 PROFESSOR HOFFMAN: Isn't that the Federal 3 circuit? 4 CHAIRMAN BABCOCK: Yeah, that's the Federal 5 circuit. Good point. Any other comments about this? 6 Enough good quotes for you, Mary Alice? 7 MS. ROBBINS: It wasn't the media that 8 started it, though, Chip. 9 CHAIRMAN BABCOCK: Just the media reporting 10 on it. 11 HONORABLE NATHAN HECHT: Are you going to 12 put that in the story, Mary Alice? 13 CHAIRMAN BABCOCK: Okay. Moving along, and 14 not to denigrate at all the hard work that Judge Lawrence 15 and his task force put into the e-filing rules, let's get 16 back to them. 17 HONORABLE TOM LAWRENCE: For the record, I 18 prefer the term "carefully analyzed" over "bogged down." 19 CHAIRMAN BABCOCK: Carefully analyzed. 20 HONORABLE TOM LAWRENCE: All right. We are 21 at 4.3 over on page 11 of the handout. (f) talks about 22 what happens if a JP decides that they're going to accept 23 it. (g) talks about what happens if the JP decides 24 they're going to not accept the filing, and (h) talks 25 about attachments, garnishments, sequestrations, distress D'Lois Jones, CSR (512) 751-2618 16340 1 proceedings that may not be filed on a Sunday, but that's 2 all consistent with the county and district court rules. 3 CHAIRMAN BABCOCK: Yeah, Bill. 4 PROFESSOR DORSANEO: Well, notwithstanding 5 the template, and I remember talking about this at some 6 point and making the same point then, I have a lot of 7 difficulty with the concept that a clerk or a justice of 8 the peace acting as his own clerk has any authority to 9 reject something that's submitted for filing. I think 10 that notion is unacceptable within most circumstances. 11 CHAIRMAN BABCOCK: Elaine, and then Sarah. 12 PROFESSOR CARLSON: I absolutely agree with 13 Bill on that point. 14 CHAIRMAN BABCOCK: Sarah. 15 HONORABLE SARAH DUNCAN: I would like to ask 16 the clerk -- well, Andy's left. Bonnie, my understanding 17 is that it was the law -- and I was using a Splenda packet 18 at lunch, and if I walk into your office and I want to 19 file my Splenda packet in a particular cause number, you 20 have no discretion to refuse to file my little Splenda 21 packet. Is that your understanding? 22 MS. WOLBRUECK: To my knowledge there is 23 some case law that says whatever document is tendered the 24 clerk shall file. 25 HONORABLE SARAH DUNCAN: Whether it's on D'Lois Jones, CSR (512) 751-2618 16341 1 toilet paper or a Splenda packet, whatever. 2 MS. WOLBRUECK: In fact, I had a clerk that 3 had one filed on toilet paper. 4 HONORABLE SARAH DUNCAN: Okay. I completely 5 agree with the professors. 6 MS. WOLBRUECK: But, again, one of the 7 reasons that that's in the rule is for misdirected 8 filings, and let's say you had an original answer that was 9 due today and you filed it with me and it was supposed to 10 be in Travis County. You would know -- you would want to 11 know that that's been rejected or that this was a 12 misfiling. The purpose of it is to take care of 13 clerical error on submitting a document for electronic 14 filing. I think that's the main purpose of that being in 15 the rule. 16 CHAIRMAN BABCOCK: Okay. Yeah, Justice 17 Gray. 18 HONORABLE TOM GRAY: I don't see what the JP 19 courts see, but at the appellate level we are routinely 20 faced with the question of -- and, of course, we don't 21 have the electronic filing, but we are routinely faced 22 with the question of whether or not the litigant has sent 23 us a document that they want filed. We don't even know 24 they want it filed. It may be a communication to the 25 clerk. It may be anything, and I mean, we get a lot of D'Lois Jones, CSR (512) 751-2618 16342 1 pro se, a lot of prisoner stuff, indigent appeal, and so 2 at the threshold, we're -- and, of course, it's a little 3 bit easier in the electronic area because obviously 4 they've gone through the mechanics of getting it 5 electronically filed; and I can understand the professors' 6 point of view in connection with something that's gone 7 through this process of where they have actively sought to 8 file it, much like somebody standing at the counter who 9 says, "I want to file it." But there is and I think has 10 to remain room in the filing or presentation of documents 11 at the counter primarily through the mail system that an 12 initial determination has to be made whether or not they 13 intend to file something in the first instance. 14 CHAIRMAN BABCOCK: Justice Hecht. 15 HONORABLE NATHAN HECHT: Let me add to that 16 if I may. Some of the premise of our discussion has been 17 that the clerk is going to deny you some opportunity or 18 right to file something, which is a problem that we need 19 to think about. But most of the time our experience is 20 like Judge Gray's. We're trying to help people. They 21 file stuff in our court that they mean to file in the 22 Court of Criminal Appeals, and rather than just let it sit 23 there or deny it or send them on their way, we send it 24 over to the Court of Criminal Appeals so that they will -- 25 so the Court of Criminal Appeals can deny it. D'Lois Jones, CSR (512) 751-2618 16343 1 And we get -- we routinely get things that 2 prisoners want filed in the Fifth Circuit, and we can't do 3 anything about that, but we do usually notify them that 4 they filed something that they probably -- that looks on 5 its face to be intended to have been filed in the Fifth 6 Circuit and if that's what they want, that's not what they 7 did. And then another, we get things that people want -- 8 they say they want filed, but do they really want filed? 9 We had a pro se this week send us her tax return because 10 she claimed that she really was injured and, see, she 11 couldn't make any money, and so, you know, you don't have 12 to file your tax return to prove that, and maybe you don't 13 really want to, and so the clerk is going to write her 14 back and say, you know, "You don't have to file this if 15 you don't want to. This doesn't do any good, and you may 16 not want your Federal income tax return to be a matter of 17 public record," so you do get a lot of mistakes where the 18 clerks are just trying to point out to you that if it just 19 sits there and you don't know and nobody tells you, the 20 clock may be ticking on some right. 21 CHAIRMAN BABCOCK: Bill. 22 PROFESSOR DORSANEO: Notwithstanding the 23 attempt to make this sentence about acceptance into kind 24 of a friendly thing, it does pretty strongly suggest the 25 first sentence in (e) that a justice of the peace can D'Lois Jones, CSR (512) 751-2618 16344 1 reject something that doesn't comply with all filing 2 requirements, you know, whatever filing requirements 3 you're talking about. I think earlier someone suggested 4 that it's -- if a document wasn't signed, well, that might 5 be a basis for not accepting it, and I just don't think 6 that's right. I think that a much better way is what 7 Justice Hecht suggested. If something is misdirected, 8 maybe have it sent and have some -- I don't know if I want 9 to call it duty, but some way to get it to the proper 10 court, and we have a rule like that in our appellate rules 11 for notices of appeal, and that seems like a much better 12 way to do things than to have it not accepted, whatever 13 that ends up meaning. 14 CHAIRMAN BABCOCK: Judge Lawrence. Any 15 thoughts about that? 16 HONORABLE TOM LAWRENCE: Well, I don't want 17 to have any duty or burden whatsoever on myself to have to 18 try to figure out where something is supposed to go. I 19 don't think tha tthe courts want to accept any type of 20 burden if something is misdirected or misfiled to figure 21 out who we're supposed to send it to or forward it to. 22 That needs to be the filer that has that burden. I think 23 there may be a perception that the judges are going to use 24 this provision as a way to disenfranchise filers or 25 prevent them from filing, and I don't think that there is D'Lois Jones, CSR (512) 751-2618 16345 1 anybody that can suggest that that's the case now. 2 A clerk can reject something for someone 3 that comes to the window or send something back in the 4 mail now in the justice courts just as they could reject 5 this, but that's just not the practice. I think that very 6 rarely, if ever, happens. Anecdotally I don't hear 7 anybody telling me about uniformly rejecting stuff, and 8 it's taught at the JP schools that whatever is filed you 9 accept and, you know, you sort it out later, so I don't 10 perceive this as being some tool to try to disenfranchise 11 people. 12 CHAIRMAN BABCOCK: Sarah had her hand up 13 first, if you still want to speak, Sarah. And then Skip 14 and then Justice Jennings and then Justice Gray. 15 HONORABLE SARAH DUNCAN: Just a couple of 16 things. I appreciate how well-intentioned and decent 17 everybody around this table is and their employees, their 18 clerks; and I'm all for getting things filed where they 19 need to be filed; but at the same time, I'm really big on 20 people bearing consequences of their actions; and what I 21 would like to see and I don't know if it's technically 22 doable, but I would think that it is, is if I tried to 23 file something and it's rejected, for whatever reason, 24 that there's just a popup window that says my filing's 25 been rejected and if I have an issue with that, here's who D'Lois Jones, CSR (512) 751-2618 16346 1 to talk to. 2 And as well-intentioned as everybody around 3 this table and all of their employees are, the fact 4 remains that in the history of the world and the judicial 5 system there have been people who have not been as 6 well-intentioned, and the taking care of other people is 7 so frequently a justification for doing bad things to 8 people, and I don't want to see us get in the situation 9 with the rules where we're going to decide because we care 10 so much about you where this thing -- we're not going to 11 file it. We'll decide where it needs to be filed, and 12 we'll send it there, because then somebody bad can get in 13 and say, "I'm going to take care of you. I'm not going to 14 file it in my court. I'm going to send it over to 15 Professor Dorsaneo's court where it has no business being 16 because then it's not on file in my court." That's the 17 problem with paternalism, is it can be used for 18 illegitimate purposes. 19 CHAIRMAN BABCOCK: A bad daddy. 20 HONORABLE SARAH DUNCAN: They exist. 21 CHAIRMAN BABCOCK: Did I say Skip next? 22 Skip. 23 MR. WATSON: My concern is just how we deal 24 with the thing that shouldn't have been filed, but the 25 premise that we seem to be dealing with is we're standing D'Lois Jones, CSR (512) 751-2618 16347 1 at the clerk's window deciding whether it should be filed, 2 that the clerk is making that decision. My premise is 3 just the opposite, that in (b) we have made that decision. 4 It has been file stamped when the send button was sent. 5 We are no longer presenting it to the clerk. It has been 6 filed. I understand this problem arises because the JP 7 wears both the clerk and the judge's hat, and that's what 8 we're trying to grasp, but when we made the decision that 9 it's filed when the button is sent, the clerk's hat went 10 away. It is now in the judge's hands and the operative 11 point is what do we do when something should not have been 12 filed but was filed? 13 And the way we traditionally handle that is 14 to say, "We're sending you a message back. You filed this 15 on such and such a day. It is invalid, or it has these 16 problems because it should have been in another court or 17 it wasn't signed or you didn't send in the money," and you 18 say, "You have 36 hours," or some reasonable period of 19 time, "to correct this deficiency with a proper document 20 or an order striking the filing will be entered." That's 21 all I'm trying to address, is just we deal with this 22 situation the way we deal with every other situation in 23 which something has been filed but has a problem. We give 24 notice, we give opportunity to cure, and then if it 25 doesn't happen we strike, period. D'Lois Jones, CSR (512) 751-2618 16348 1 CHAIRMAN BABCOCK: Justice Jennings and then 2 Justice Gray and then Bill. 3 HONORABLE TERRY JENNINGS: Just looking at 4 the appellate rules, I don't know if this will provide 5 some guidance, but under appellate Rule 9.2, "A document 6 is filed in an appellate court by delivering it to the 7 clerk of the court in which the document is to be filed" 8 or, of course, you can deliver it to a justice who is 9 willing to accept delivery, so under the appellate rules 10 if you've delivered it to the clerk it is filed. And 11 then, of course, in regards to the clerk's duties, "The 12 clerk must safeguard the record and every other item filed 13 in the case." So it seems to me that -- that seems to be 14 working in the appellate rules. 15 I'm assuming that there is probably a 16 similar rule in place with regard to district court clerks 17 and so forth, but by definition as soon as you deliver it 18 to the clerk it is filed and then at that point in time 19 the clerk has a duty to safeguard it. And then, of 20 course, the appellate rules do provide that if it's a 21 nonconforming document, et cetera, then and only then can 22 the judges strike it, but they have to send out the letter 23 saying what's wrong with the document and giving you an 24 opportunity to fix it. 25 CHAIRMAN BABCOCK: Yeah, Sarah. D'Lois Jones, CSR (512) 751-2618 16349 1 HONORABLE SARAH DUNCAN: And then I have 2 something to appeal. I have an order striking my document 3 that I wanted filed to appeal; whereas, if it's just the 4 clerk or a machine somewhere deciding not to file 5 something I have nothing to appeal. 6 HONORABLE TERRY JENNINGS: Under our rules 7 it's -- 8 HONORABLE SARAH DUNCAN: I'm SOL. 9 HONORABLE TERRY JENNINGS: It's filed when 10 delivered and the clerk has a duty to safeguard it. 11 CHAIRMAN BABCOCK: I jumped Justice Gray. 12 I'm sorry, Judge. 13 HONORABLE TOM GRAY: My turn? 14 CHAIRMAN BABCOCK: Yeah, it's your turn. 15 HONORABLE TOM GRAY: Under 9.5 of the TRAPs 16 there's a phrase that kind of goes contrary to what the 17 rule that Justice Jennings read and it says, "Proof of 18 service may appear on or be affixed to the filed document. 19 The clerk may permit a document to be filed without proof 20 of service, but will require the proof to be served 21 properly." Certainly that indicates that the clerk does 22 not have to allow it to be filed if it doesn't have the 23 proof of service. 24 The two rules in the appellate procedures 25 that basically kind of deal with the issue like Skip wants D'Lois Jones, CSR (512) 751-2618 16350 1 to do it, which I support, is 38.9(a), which addresses it 2 with regard to briefs that are not in substantial 3 conformity and the process for striking those; and then 4 Rule 4.3, which deals with defects in procedure, and you 5 can't dispose of an appeal based upon a defect in 6 procedure without notice and opportunity for the litigant 7 to cure it; and so I think that would deal with a lot of 8 the problems of both the use of the term "accepted for 9 filing," that type language, and then what do you do with 10 a document that is defective. 11 Because as Skip said, what we have done here 12 is we have removed the window, and the document has 13 already passed that threshold and is filed at the moment 14 that the send button is clicked, and we've just got to 15 deal with it electronically at that point of what are we 16 going to do and how are we going to get it out of the 17 process, if it's defective. 18 CHAIRMAN BABCOCK: Okay. Bill. 19 PROFESSOR DORSANEO: Well, what -- Skip, 20 what kind of things were you thinking about that shouldn't 21 have been filed? Or what kind of problems? Because there 22 are a lot of documents that would -- that are filed that 23 don't satisfy the rules that govern the documents. In 24 fact, probably better than half have some difficulty 25 satisfying the requirements of pleading a cause of action D'Lois Jones, CSR (512) 751-2618 16351 1 or some other matter. It seems to me that there's no 2 stopping point if you say, well, you look at the Rules of 3 Civil Procedure to see whether this document measures up, 4 and I find that unacceptable. 5 MR. WATSON: That wasn't the point. My 6 point was that if there is a document that the judge, the 7 justice of the peace in this instance, believes should not 8 have been filed, not that it's defective, that he believes 9 should not have been filed, whether it's because it wasn't 10 signed -- well, electronic signing, because the money 11 didn't come with it, because it was in the wrong court, or 12 any of the examples that have been used where -- as an 13 example where something would not be accepted under the 14 current rule, but the not being accepted only has a 15 24-hour window or it's going to stay. 16 That judge at that point sua sponte can say 17 48 hours later or four years later, whatever it is, "We 18 have found this document. This is a problem with it. Fix 19 the problem or it's going to be stricken." The problem is 20 going to get fixed, or if it's not, the case goes away, 21 but there's notice and opportunity to cure. That's all 22 I'm saying. 23 PROFESSOR DORSANEO: I don't see why the 24 judges get involved with this kind of worrying about 25 whether the document measures up. I mean, filing fees, D'Lois Jones, CSR (512) 751-2618 16352 1 that's a different matter altogether. But I'm -- I mean, 2 documents are filed frequently -- 3 MR. WATSON: Bill, it's not going to come up 4 unless the judge raises it. 5 PROFESSOR DORSANEO: -- without the filing 6 fees being paid. 7 CHAIRMAN BABCOCK: Richard. 8 MR. ORSINGER: I can't find any trial court 9 rule that gives the clerk or the court the explicit 10 authority to refuse to accept a filed document, so I'm 11 assuming that what we're doing is we're creating a 12 different regime for the JP courts where their clerk or 13 their judge can refuse to accept it. 14 HONORABLE TOM LAWRENCE: No. This rule is 15 exactly the same as the county and district court. 16 MR. ORSINGER: I know that, but I'm talking 17 about the Rules of Civil Procedure, so what's happened is 18 through the electronic filing process, rather than it 19 being identical to the physical filing process, we've 20 actually introduced some kind of unmentioned discretionary 21 act on the part of someone who's not specifically given 22 that duty to refuse to accept the document, and then if 23 you look at the term here, "misdirected," I think the most 24 frequently misdirected document is one that has the wrong 25 cause number on it. D'Lois Jones, CSR (512) 751-2618 16353 1 That's certainly been my experience in my 2 practice, that somebody hits an extra digit in the cause 3 number or whatever and it goes into the wrong file, or, 4 you know, maybe it has too many numbers on there and it 5 doesn't have any file assigned to it. It's my 6 understanding that if you file the document with the right 7 clerk, even if it's got the wrong cause number on it, it's 8 still a valid filing and considered timely. Is that not 9 right, Sarah? Isn't that right? 10 So it seems to me like what we ought to be 11 discussing here is whether electronic filing should be 12 treated as somehow so different from physical filing that 13 we have this step of the acceptance and rejection process, 14 because if we're not going to have that then let's quit 15 debating who's going to reject it based on what ground and 16 what notice they have to give when they reject it, and 17 let's just treat it like it was physically filed, for 18 better or worse. 19 CHAIRMAN BABCOCK: Skip, your proposal was 20 to get rid of (e)? 21 MR. WATSON: Yeah. 22 HONORABLE NATHAN HECHT: And (g). 23 MR. WATSON: Well, and a lot of (f). 24 CHAIRMAN BABCOCK: Okay. First things 25 first. Okay. Judge Patterson, you had your hand up, I D'Lois Jones, CSR (512) 751-2618 16354 1 thought. 2 HONORABLE JAN PATTERSON: I did. I do think 3 there may be additional information that the clerks might 4 provide us, because I think there is a universe of 5 documents that are received, not filed, which may be a -- 6 if not a rejection, it's a temporary hold, but it's not a 7 filing. It's something different than that which is 8 filed. 9 CHAIRMAN BABCOCK: Okay. 10 HONORABLE JAN PATTERSON: For example, 11 something that is -- somebody tries to file without 12 permission, either they don't file a motion to submit a 13 supplementary brief, that might be received but not filed 14 until a judge rules on it. Various kinds of motions may 15 be received, not filed, and so I think we're probably 16 proceeding under not an entirely correct assumption, but I 17 don't know what that rule is. 18 CHAIRMAN BABCOCK: Judge Christopher, and 19 then Sarah. 20 HONORABLE TRACY CHRISTOPHER: Well, I mean, 21 we do have a Rule of Civil Procedure about discovery 22 materials not being filed, and when people show up at my 23 clerk's office with discovery materials, we give it back 24 to them and say, "Go away, we don't want these things. 25 You're not supposed to file them anymore." So, I mean, D'Lois Jones, CSR (512) 751-2618 16355 1 there are things that we do reject by rule. 2 HONORABLE TERRY JENNINGS: But they are 3 specific things. 4 HONORABLE SARAH DUNCAN: It's a class of 5 documents. 6 HONORABLE TRACY CHRISTOPHER: It is, but I 7 mean, that would be an example of something that walks in 8 that we refuse. 9 HONORABLE SARAH DUNCAN: Right, and I don't 10 have any problem if there's a class of documents that 11 we're not going to file, but my problem is when it's not 12 an entire class, it's a person making individual 13 determinations of what he or she will and won't file. The 14 only rule I'm aware of, and it kind of ties in with what 15 you're saying, is TRAP Rule 37.2 that gives the court -- 16 the clerk discretion of what to file and that's in judging 17 whether the clerk and reporter's record conforms to the 18 Supreme Court/Court of Criminal Appeals requirements for 19 records. The clerk has discretion to say this does or 20 doesn't conform to those requirements and I will or I 21 won't file it, but to me it's a completely different thing 22 when it's a class of documents. 23 And I have to follow up a little bit. There 24 was some not inconsiderable disagreement at the Fourth 25 Court of Appeals when I got there over whether a document D'Lois Jones, CSR (512) 751-2618 16356 1 that shouldn't have been filed, and I'm putting that in 2 quotes, was going to get received or filed or given back. 3 The court cannot consider whatever it doesn't think was 4 properly filed, but to say that it doesn't get filed 5 gives -- puts the cart before the horse. 6 CHAIRMAN BABCOCK: Judge Lawrence, and then 7 I think after he talks maybe we should vote on Skip's 8 motion to delete (e). 9 HONORABLE TOM LAWRENCE: Well, one example 10 that comes to mind in the JP courts is the issue 11 of evictions. It's not just a venue problem because the 12 Government Code -- and I can't recall if there is any in 13 the constitution, but the Government Code specifically 14 says that you can't try an eviction case unless it's in 15 your precinct, unless the property is in your precinct, so 16 I suspect that across the state there probably are more 17 than a few occurrences where some clerk would not take 18 that eviction case in because nothing would ever happen to 19 it, and they would probably tell them "You're in the wrong 20 precinct. You need to go to a different precinct," so 21 because otherwise nothing's going to happen on the case 22 and they will have wasted the filing fee. So that's one 23 example off the top of my head I can think of. 24 I think the example Bonnie gave where that's 25 not even in your court would be another good example of D'Lois Jones, CSR (512) 751-2618 16357 1 why it would be nice to have that ability to reject that 2 just to prevent that mistake from being made. 3 CHAIRMAN BABCOCK: Precisely Sarah's point. 4 Okay. Everybody that's in favor of deleting subparagraph 5 (e) raise your hand. 6 Okay. Everybody in favor of keeping it, 7 raise your hand. Vote of 13 to 8 in favor of keeping it. 8 So let's march on. 9 HONORABLE TOM LAWRENCE: Do we want to march 10 on to 4.4? Did we beat 4.2 to death? 11 CHAIRMAN BABCOCK: I think 4.4 needs some 12 discussion, maybe not much, but -- 13 HONORABLE TOM LAWRENCE: 4.4 says that -- 14 and this is really probably more a TexasOnline issue. "A 15 filer may include only one document in an electronic 16 transmission to TexasOnline," but that document under (b) 17 may include another attachment, and this is also right out 18 of the -- right out of the county and district court 19 e-filing rules. 20 CHAIRMAN BABCOCK: What do people think 21 about this? Any problems? Any issues? Bill. 22 PROFESSOR DORSANEO: Well, what is it meant 23 to mean? I mean, a document -- we talk about instruments 24 and pleading, and document is defined earlier to cover 25 about anything you would want to talk about. We have a D'Lois Jones, CSR (512) 751-2618 16358 1 rule in our civil procedure rules that says that petitions 2 and answers should be in one instrument. What is meant to 3 be accomplished here is what I'm asking about? Is this 4 some sort of a fee thing or what? 5 MR. HUGHES: Yes. 6 HONORABLE TOM LAWRENCE: We'll let 7 TexasOnline answer that. 8 MR. GRIFFITH: It is. That's exactly 9 correct. It's tied to the fees that go with these 10 particular type of filings, so the intent was not to not 11 provide a means for a filer to skip fees by filing 12 multiple documents or multiple pleadings, petitions, 13 whatever, on one filing. 14 PROFESSOR DORSANEO: So let's say I had a 15 pleading, in terms of pleadings I wanted to file -- I want 16 to file a special appearance motion, and I don't want to 17 include it in my answer. I want to do it as a stand-alone 18 document, and I'm going to file an answer along with that. 19 If I staple them differently they're two documents, is 20 that it? How do you tell that there is a different 21 document? 22 MR. GRIFFITH: Well, it's really part of the 23 clerk review process when they're looking at the documents 24 that have been filed. If you have, for example, two 25 counterclaims on one filing then that's not allowed. D'Lois Jones, CSR (512) 751-2618 16359 1 MR. ORSINGER: What does a clerk do if that 2 happens? 3 MR. GRIFFITH: That would be an opportunity, 4 I guess, for a -- 5 MR. ORSINGER: They refuse to accept it 6 then? 7 MR. GRIFFITH: And they send the notice 8 back, an e-mail message back to the client. 9 MR. ORSINGER: So this is all a revenue 10 issue then, huh? Sorry. If you had told me that, I 11 wouldn't have even debated it. 12 PROFESSOR DORSANEO: But it's an irrational 13 revenue issue because a document can be, you know, really 14 thick or consist of -- or several documents that 15 accomplish essentially the same thing can be just a few 16 pages. 17 CHAIRMAN BABCOCK: Okay. Any other 18 comments? 19 HONORABLE TOM GRAY: Am I right in thinking 20 from what is written that, for example, they couldn't 21 combine a motion to compel and a motion for protection and 22 a motion to strike and a plea to the jurisdiction and a 23 motion to transfer venue, a special exception and original 24 answer all in the same pleading? 25 MR. ORSINGER: No. If you do it in the same D'Lois Jones, CSR (512) 751-2618 16360 1 pleading it's one document, but if you do it in separate 2 motions and pleas then it's more than one document. 3 PROFESSOR DORSANEO: It must be if you 4 repeat the style and caption. 5 HONORABLE TOM GRAY: So if I have multiple 6 captions and signatures and proof of certificates of 7 service then it's multiple documents and prohibited? 8 CHAIRMAN BABCOCK: Sounds like it. 9 HONORABLE TOM GRAY: But I can group it all 10 together in one document and it's a-okay. 11 MR. HUGHES: Isn't that the case now? I 12 mean, in filings if you -- the clerk might charge you two 13 motion filings if you charge a motion for this and a 14 motion for that, if you put it into a motion for this and 15 that they'll say that's $10 and you just file it that way. 16 CHAIRMAN BABCOCK: Yeah, Richard Munzinger. 17 MR. MUNZINGER: I'm not sure I understood 18 the response. If you include multiple pleadings in one 19 filing, does TexasOnline accept it or reject it? 20 MR. ORSINGER: They won't even know what it 21 is, they're just getting a digital file that complies with 22 their standards and they turn around and deliver it to the 23 clerk. It's the clerk that would reject it. Isn't that 24 right, Mike? 25 MR. GRIFFITH: Right. D'Lois Jones, CSR (512) 751-2618 16361 1 MR. ORSINGER: So the clerk is expected 2 to -- the TexasOnline is an automatic process. They don't 3 have somebody that looks at it and puts it from here to 4 there. So the clerk is the first person that will 5 evaluate the contents of what got filed unless it's the 6 JP, in which event it's the judge. 7 CHAIRMAN BABCOCK: Okay. Any other comments 8 about this? Before we go onto 4.5, I just wanted to see 9 if Mr. Bastian was here to talk to us about the home 10 equity loan foreclosure task force. We could talk for 11 probably another 20 minutes or so, Mr. Bastian, about the 12 Rule 4 and then take a break and hear from you and then go 13 to rule -- go back to Rule 5? Is that okay with you? 14 It's probably going to take another 20 or 30 minutes. 15 MR. BASTIAN: I'm at your disposal. 16 CHAIRMAN BABCOCK: Well, if that -- 17 HONORABLE TOM LAWRENCE: I don't think the 18 rest of Rule 4 is going to take that long. Famous last 19 words. 20 CHAIRMAN BABCOCK: Famous last words. 21 Tommy, if you don't mind waiting until we get through Rule 22 4, that will be a natural break for us, so let's see if we 23 can get through Rule 4. 24 HONORABLE TOM LAWRENCE: All right. 4.5 is 25 very simple. A JP court's file for a particular case may D'Lois Jones, CSR (512) 751-2618 16362 1 contain a combination of electronically filed documents 2 and traditionally filed documents, and then (b), the JP 3 court may maintain and make available electronically filed 4 documents in any manner allowed by law, which may mean 5 coming in and physically inspecting the file or looking at 6 the electronically filed document in a dumb terminal, 7 whatever is provided for in that court, and that's 4.5. 8 CHAIRMAN BABCOCK: Any comments about 4.5? 9 HONORABLE TOM LAWRENCE: 4.6, in addition to 10 the -- 11 CHAIRMAN BABCOCK: Moving right along to 12 4.6. 13 HONORABLE TOM LAWRENCE: I'm sorry. Did -- 14 CHAIRMAN BABCOCK: No, nobody said anything. 15 HONORABLE NATHAN HECHT: Go for it. 16 CHAIRMAN BABCOCK: Quick. 17 HONORABLE TOM LAWRENCE: All right. "In 18 addition to the information required on a pleading by Rule 19 57 a filer must include the filer's registered e-mail 20 address on any electronically filed document." Remember, 21 the filer is choosing to file it electronically. They're 22 making that decision, so what we're saying is that if you 23 choose to do it then put your e-mail address on that 24 document that you file. 25 And 4.7 is just simply that anything filed D'Lois Jones, CSR (512) 751-2618 16363 1 must meet the TexasOnline format, and electronically filed 2 pleading under 4.7 is deemed to comply with Rule 45. 3 MR. GILSTRAP: Whoa. 4 CHAIRMAN BABCOCK: Frank. 5 MR. GILSTRAP: Well, (b) needs to come out 6 of there, because the 45 doesn't apply to justice court, 7 and I don't think that the pleadings in the justice court 8 should have to meet the requirements of 45, which, for 9 example, says there is a certain form and content 10 requirements of 45 like it's got to state a concise 11 statement of the claim or something like that, because in 12 justice court I don't think that's the rule. I think the 13 law is still that you should plead in justice court 14 orally. 15 HONORABLE TOM LAWRENCE: Well, actually, the 16 law is that you must be plead orally in a justice court 17 suit, although that is ignored uniformly throughout the 18 state. Nobody does that. 19 No, there is no equivalent rule in the 20 justice courts. Remember, this rule that says you shall 21 plead orally goes back to about 1876, I think. It hasn't 22 been changed since then, so we still have a few older 23 rules in our system, but as a practical matter, if you 24 came and tried to file something orally, the JP would 25 accept it and they would just simply reduce it to writing D'Lois Jones, CSR (512) 751-2618 16364 1 and put it in the docket book, but I haven't heard of 2 anybody filing anything orally in 20 years. 3 MR. GILSTRAP: Well, at the same time I 4 don't think there's any need to impose the requirements of 5 45. Indeed I'm not even sure that (b) should even be in 6 the district and county court rules because you could read 7 it to say that a pleading that says "Kilroy was here" 8 meets 45. I mean, that's what it says, if it's filed 9 electronically it meets 45. 10 CHAIRMAN BABCOCK: Sarah. 11 HONORABLE SARAH DUNCAN: Following on what 12 Frank said, how do you deem something filed electronically 13 to comply with the second sentence of 45(b) that an 14 allegation be evidentiary or be a legal conclusion, shall 15 not be grounds for objection when fair notice to the 16 opponent is given by the allegations as a whole. How is 17 an electronic filing in and of itself going to decide that 18 an evidentiary or legal conclusion gives fair notice to 19 the opponent? 20 MR. GILSTRAP: I think the -- I think the 21 intent was to say that it will comply with 45(b), which 22 says it's got to be in writing and on paper, and obviously 23 that's not going to be a requirement. It certainly 24 doesn't need to say that it complies with 45. But, again, 25 why do we even need it in justice court? I mean, do you D'Lois Jones, CSR (512) 751-2618 16365 1 ever throw pleadings out? You can't throw pleadings out 2 because they don't comply with 45 because 45 doesn't apply 3 to justice courts. 4 HONORABLE TOM LAWRENCE: Well, I think that 5 they're trying to give the attorneys an indication that if 6 you file it like that you're going to comply with 45(d), 7 which is the eight and a half by eleven provision. I 8 don't know that it's intended -- and, Jody, I don't know 9 if you have dealt with this, but I don't know that that's 10 intended to apply to anything other than that one 11 provision about the size, is it? Is it, Mike? 12 MR. GRIFFITH: The size is a key issue. If 13 a document is formatted for legal size when it's shrunk 14 down in the clerk's system the file stamp all but 15 disappears. 16 HONORABLE TOM LAWRENCE: I think we're just 17 trying to tell the attorneys that if you file it like this 18 you're going to be okay with that size provision. It's 19 not meant to imply anything else. 20 PROFESSOR DORSANEO: Well, why don't we say 21 what it's meant to mean rather than say something that it 22 doesn't say? 23 HONORABLE TOM LAWRENCE: Well, because we 24 followed the language that this committee approved several 25 years ago and thought that was okay. D'Lois Jones, CSR (512) 751-2618 16366 1 HONORABLE NATHAN HECHT: I mean, the answer 2 to your question is what idiot wrote this? 3 PROFESSOR DORSANEO: Who did it? 4 CHAIRMAN BABCOCK: The idiots are us. 5 PROFESSOR DORSANEO: Let's go back and check 6 the records to see whether we need to nunc pro tunc this. 7 CHAIRMAN BABCOCK: Richard Orsinger. 8 MR. ORSINGER: Admittedly the 9 cross-reference that was originally made is a clumsy one, 10 but at least it made sense because we were governing 11 pleadings filed electronically in district and county 12 courts, so it's natural to cross-refer to the pleadings 13 rule that applies to those courts, but we've now picked up 14 that cross-reference and used it for a court where the 15 pleadings rule doesn't apply, and that's even more clumsy, 16 and so what we ought to do is we ought to just take the 17 45(d) part that we like and say that you have to comply 18 with eight and a half by eleven, signed by a party, and 19 everything and just leave it be, because cross-referring 20 to a pleading rule that doesn't apply, it just doesn't 21 make any sense. 22 CHAIRMAN BABCOCK: There we go. 23 MR. ORSINGER: Simple enough. 24 CHAIRMAN BABCOCK: Got that, Jody? 25 Okay. Let's take another break from the JP D'Lois Jones, CSR (512) 751-2618 16367 1 e-filing rules, and this is item five, I think, on our 2 agenda, and some of you will remember that a number of 3 years ago we had a special task force on home equity and 4 reverse mortgage rules, chaired by Mike Baggett, and they 5 did a bunch of really good work and came and talked to us, 6 and we made some recommendations. Tommy Bastian, excuse 7 me, who is from the Dallas area, is here, and he wrote 8 Chief Justice Jefferson suggesting that perhaps it was 9 time to update those rules and that perhaps another task 10 force was in order. The chief wrote Tommy back and said, 11 "Well, we're having an SCAC meeting August 24th, why don't 12 you come talk to them about it," and so that's what he's 13 here to do. So if you've got a minute to share your 14 thoughts, that would be great. 15 MR. BASTIAN: Yes. My name is Tommy 16 Bastian. Mike Baggett, who I'm sure most of you-all know, 17 wished he was here making the presentation, but he just 18 had his hip replaced and he's kind of immobile. Plus 19 every organization has to have its generals and then 20 somebody has to be kind of the first sergeant, and I'm the 21 first sergeant, so he figured he would send me to the 22 lines. 23 If you recall, home equity came to Texas 24 about nine years ago. The Legislature passed the home 25 equity. When it got passed by the citizens of Texas D'Lois Jones, CSR (512) 751-2618 16368 1 everybody kind of looked at the home equity law, and there 2 was a provision that says the Supreme Court had to come up 3 with the rules on how you're going to foreclose one of 4 these things, and I think it was a surprise to a lot of 5 folks. Well, the Supreme Court put together a task force 6 and said you've got about two months to get together and 7 put a rule in place that's going to work, and that 8 original task force was chaired by Mike Baggett. I think 9 it had about 12 different people. That task force really 10 ended up being -- I think when it started out there were 11 folks that represented just about every part of the 12 industry that might be affected by home equity foreclosure 13 rule. There were title people there, there was the 14 consumer bar people there. The secondary market 15 representative was there. There were judges, there were 16 trade associations. 17 When it first started I think a lot of 18 people had agendas, but before it was all over this group 19 operated as statesmen, everybody trying to figure out what 20 kind of rule can we put in place that works for everybody. 21 The idea is it's not going to be a good rule unless it's 22 good for everybody, and that rule has been in place for 23 about nine years. There has been a couple of pieces of 24 legislation that have taken place since then. For 25 example, we had reverse mortgage, and there was a task D'Lois Jones, CSR (512) 751-2618 16369 1 force put together to take care of the foreclosure of the 2 reverse mortgage, which is a subset of home equity. That 3 task force was made up of basically the same people. The 4 rule has been in place on reverse mortgages I think for 5 about seven years. 6 In this legislative session the Legislature 7 came up with a provision that deals with investor tax 8 liens or transferred tax liens. A lot of people call them 9 a lot of different things, but it may be a surprise to the 10 folks in this room in Senate Bill 1520 it says if you're 11 going to foreclose under these investor tax liens it's 12 going to have to be under Rule 736, and there is nothing 13 under Rule 736, which is the home equity foreclosure rule, 14 that would even -- I don't even know if you could 15 manipulate it to take care of one of these investor tax 16 liens. 17 There have been a number of changes over in 18 the foreclosure statute. Its definitions that probably 19 would be applicable. Now people are using words like 20 mortgage servicer. Mortgage servicer is the entity that 21 basically handles all of the low level information that's 22 over in the foreclosure statute, but it's not over in the 23 home equity, and it might be time to kind of make those 24 two -- those two provisions kind of coincide. 25 And then over a nine-year period there's D'Lois Jones, CSR (512) 751-2618 16370 1 been unintended consequences that have shown up. The rule 2 has shown a little bit of age, and it might be, again, 3 time to sit down and take a look at it and make some more 4 recommendations to the Supreme Court and come back and see 5 if people would be happy with it, and I would be open to 6 any of your questions. I see a whole lot of judges in 7 this room who probably have handled home equity 8 foreclosures. Our particular law firm keeps kind of a 9 list of all the different requirements of different judges 10 in the state when it comes to a home equity. I mean, we 11 have this rule where we have a hundred -- well, it's 12 really 104 different courts that have different 13 requirements that you have to go through if you're going 14 to file a home equity application in their court, so I'm 15 open to any questions that you have. 16 CHAIRMAN BABCOCK: Yeah, Carl. 17 MR. HAMILTON: You mentioned some rules were 18 written on the reverse mortgage foreclosure? 19 MR. BASTIAN: Yes, it's all part of Rule 735 20 and 736, really just adding the term "reverse mortgage." 21 Right now we have the constitutional provision. There is 22 four maturing events that allow you to do a foreclosure. 23 In two of those if somebody -- if both obligors are dead 24 you can do a nonjudicial foreclosure, if you will, and if 25 the loan sold to somebody, you can do a judicial D'Lois Jones, CSR (512) 751-2618 16371 1 foreclosure. That never happens because at closing 2 somebody is going to pay that off, but then if you have 3 the situation where the obligor has abandoned the property 4 or they have failed to pay the taxes or the insurance, in 5 those particular cases you can come in and foreclose, and 6 you have to get a court order, so that's where the reverse 7 mortgage comes in upon Rule 735 and 736. 8 And I failed to mention -- and I think 9 that's the first thing if you have the letter in front of 10 you. We also have home equity lines of credit. Home 11 equity lines of credit aren't even mentioned in Rule 735 12 and 736. It surprises a lot of folks that -- who really 13 don't get involved in this area of the law, and they go to 14 Rule 735 and 736 and they don't see the word "home equity 15 line of credit," and so they go do a nonjudicial 16 foreclosure, and it's real clear that you have to have a 17 court order to foreclose upon a home equity line of 18 credit. It's just not listed in 735 and 736. 19 CHAIRMAN BABCOCK: Justice Hecht. 20 HONORABLE NATHAN HECHT: The Court is 21 inclined to appoint a task force like we did before and 22 get a recommendation for this committee. We just wanted 23 to get the committee's view on that before we did it, and 24 we would be inclined to go back to the original membership 25 or something like it, which as Tommy says, represented a D'Lois Jones, CSR (512) 751-2618 16372 1 wide range of interests, and certainly Tommy and his firm 2 are maybe the state's experts on this, and Mike Baggett's 3 done a lot of real estate law for a long time, and so we 4 don't have any reason not to use that input again, but we 5 just wanted to see if the court -- if the committee had 6 any reaction to it. 7 CHAIRMAN BABCOCK: Any reaction or thoughts 8 or further questions? As opposed to this task force doing 9 it and reporting to us or us doing it and reporting to us, 10 you want to take a vote on that? So that's good. 11 Anything else? 12 Tommy, thank you very much for coming. I 13 hope we didn't inconvenience you too much. 14 MR. BASTIAN: Not at all. 15 CHAIRMAN BABCOCK: So let's get back to the 16 e-filing in the JP rules. And we're onto Rule 5 now. 17 HONORABLE TOM LAWRENCE: 5.1 starts on page 18 12, goes over to page 13. All right. (a) talks about 19 that in addition to the traditional means of serving 20 documents under Rule 21a a filer may also serve documents 21 upon another party by electronically transmitting the 22 document to that party. We're now getting into not the 23 initial filing of the documents but serving of documents 24 after that initial filing. They can either do it through 25 TexasOnline to the party's registered e-mail address or D'Lois Jones, CSR (512) 751-2618 16373 1 directly to the party at the e-mail address provided by 2 that party upon agreement to receive electronic service. 3 So you wouldn't have to necessarily go through 4 TexasOnline. You could go directly to the other party if 5 the other party has agreed to that and has provided the 6 e-mail address. And that's (a). 7 CHAIRMAN BABCOCK: Any comments about (a)? 8 Richard. 9 MR. ORSINGER: I have a question, Tom. It's 10 purely voluntary to expose yourself to service by e-mail, 11 right? 12 HONORABLE TOM LAWRENCE: Yes. 13 MR. ORSINGER: And is there a special thing 14 called "agreeing to receive" or is this something that 15 could occur in a letter or a telephone, or is it something 16 you sign and file with the court? 17 HONORABLE TOM LAWRENCE: Jody, help me with 18 this. We had some discussion about having some sort of a 19 document or mechanism, but as I recall what we ended up 20 deciding was that the party would agree through the court, 21 wasn't it, Jody, that they would be amenable to electronic 22 service? 23 MR. HUGHES: No, I think what we ended up 24 agreeing with is you can simply agree in whatever format 25 you wanted to, and you provided an e-mail address and D'Lois Jones, CSR (512) 751-2618 16374 1 said, "I agree to receive e-mail service in this case," I 2 think, or multiple cases. 3 The issue I think that came up that Mike 4 raised was he suggested it would be helpful that even if 5 you weren't going to electronically file documents, you 6 should have to register with TexasOnline if you wanted to 7 receive e-service, and you wouldn't pay any cost to do so 8 because it would allow the court and the parties then to 9 have this list of registered e-mail addresses for everyone 10 that was kind of handy, and you wouldn't then have 11 possible disputes about, "I gave permission to e-serve, 12 receive e-service" and "No, I didn't." 13 The concern I had is that if you do that 14 then does that create a trap where one party says to 15 another, "Here, I agree to e-service," give the other 16 party their e-mail address but they don't then turn around 17 and register with TexasOnline. The other party then 18 electronically serves them and that party turns around 19 later and says, "That wasn't valid service because I never 20 registered with TexasOnline." We were just trying to, I 21 think, make this as simple as possible and, you know, to 22 allow for people to do direct e-mail service between each 23 other and leave the exact mechanism of how they prove that 24 up to individual circumstances. 25 HONORABLE TOM LAWRENCE: But it's all D'Lois Jones, CSR (512) 751-2618 16375 1 voluntary. I mean, you don't have to agree to do that. 2 CHAIRMAN BABCOCK: Sarah. 3 HONORABLE SARAH DUNCAN: So I'm reading this 4 wrong. There is not such a thing as court-ordered 5 participation in e-service? 6 MR. MUNZINGER: Paragraph (b) says the court 7 can order it. 8 HONORABLE TOM LAWRENCE: Well, that's 9 correct. That was what was in the task force draft, and 10 we discussed this earlier this morning about court-ordered 11 service. 12 MR. HUGHES: Right. 13 CHAIRMAN BABCOCK: Richard. 14 MR. MUNZINGER: Well, my question was 15 whether or not that remains. The phrase "or where the 16 court has ordered the serving party to electronically 17 serve parties," does that remain the rule or has that been 18 removed? 19 CHAIRMAN BABCOCK: Well, I think that the 20 consensus this morning was pretty much that that's not a 21 good idea, right? 22 HONORABLE TOM LAWRENCE: Yeah. 23 MR. HUGHES: If that's the case that should 24 come out. 25 HONORABLE TOM LAWRENCE: So wherever it says D'Lois Jones, CSR (512) 751-2618 16376 1 "court-ordered" in the rules, that's going to be -- Jody, 2 you will have to do a search on that. 3 MR. HUGHES: Right. 4 CHAIRMAN BABCOCK: Okay. 5 HONORABLE TOM LAWRENCE: (b), "documents may 6 be electronically served upon a party only where the party 7 has agreed to receive electronic service or where the 8 court has ordered" and obviously "the court has ordered" 9 has to come out. 10 (c) talks about where we -- 11 MR. ORSINGER: Before we go on, can I say 12 that, of course, that's already in the model rule for 13 district and county courts, that the judge can require you 14 to accept service by e-mail. We're just treating JP 15 courts differently from district and county courts, right? 16 CHAIRMAN BABCOCK: And as the discussion 17 this morning I think revealed, the character of the JP 18 docket and its litigants is much different than district 19 or county court. I mean -- 20 HONORABLE TOM LAWRENCE: Now, you know, I 21 heard that and it depends on where you are. If you're in 22 Harris County or Dallas County you're going to have a 23 substantial percentage of attorney cases. If you're in a 24 smaller county then you may have very few attorneys 25 involved in it. It depends on where you are. You can't D'Lois Jones, CSR (512) 751-2618 16377 1 make that characterization across the state. 2 CHAIRMAN BABCOCK: Well, you know, but even 3 in Harris County, Judge Lawrence, where you have a lot of 4 attorneys appearing in JP court, the percentage as 5 compared to county or district court I would think would 6 be still significant. 7 HONORABLE TOM LAWRENCE: Oh, of course. Of 8 course, yeah. 9 CHAIRMAN BABCOCK: And that's the point I 10 think that was raised this morning. Richard. 11 MR. ORSINGER: Can I ask another question? 12 Do justices of the peace ever have multiparty cases? 13 HONORABLE TOM LAWRENCE: Oh, yeah. 14 MR. ORSINGER: Well, multiparty cases in my 15 experience are the ones where the district judges require 16 you to serve by e-mail because it just gets too difficult 17 to keep track of it sending out 20 or 30 and all that. Do 18 they sometimes get cases of that magnitude where you'd be 19 sending 20 or 30 copies of the same thing out to different 20 people? 21 HONORABLE TOM LAWRENCE: Yeah. Sometimes my 22 cases consist of the pleading, the citation, and the 23 answer, and that's about it. Other times my file is that 24 thick. It's two inches or three inches thick because I've 25 got multiple parties, multiple motions, and it goes on D'Lois Jones, CSR (512) 751-2618 16378 1 forever and ever, and being able to order electronic 2 filing is something that the parties would like because 3 there are attorneys on all sides and something that I 4 would like, but admittedly, that is a small percentage of 5 the cases I try. 6 MR. ORSINGER: What if we were to have a 7 rule that said the court could order that you could have 8 e-mail service on any party represented by a lawyer so 9 that we protect the pro ses, but we allow the rest of the 10 litigants who are in your court to be handled efficiently? 11 CHAIRMAN BABCOCK: Sarah. 12 HONORABLE SARAH DUNCAN: Does every lawyer 13 have an e-mail address in Texas? Is that required? 14 MR. ORSINGER: Well, I mean, if they're 15 practicing in district and county court they're exposed to 16 that, so why shouldn't they be exposed to that in JP 17 court? 18 HONORABLE SARAH DUNCAN: Only if they're in 19 an electronic filing case. 20 MR. ORSINGER: No. I mean a judge can order 21 that you -- I have judges do this. They can order that 22 you serve stuff by e-mail under the rules that are in 23 effect under the model rules. Well, I've had judges do it 24 that aren't even under the model rules. I'm not going to 25 tell them they can't do that. Maybe you might. D'Lois Jones, CSR (512) 751-2618 16379 1 HONORABLE TOM LAWRENCE: Well, that lawyer 2 would then have to have a TexasOnline account, which they 3 may or may not -- 4 MR. ORSINGER: No, no, no. Everybody is 5 required to submit an e-mail address, and they keep it up 6 to date, and that's the one you send your notices to. 7 HONORABLE TOM LAWRENCE: Well, that's going 8 a little beyond the scope of what we're supposed to be 9 doing. 10 MR. ORSINGER: I guess my only point is the 11 experience I've had where you do have a court order is 12 where there are multiple parties to the same lawsuit, and 13 if you have those in JP court maybe we ought to allow the 14 JP to do that for people who are represented by lawyers 15 and when there's 20 or 30 parties on one side and just 16 ought to protect the pro ses because those are the ones 17 that may not have the computers and the e-mail accounts. 18 That's all I'm saying. 19 HONORABLE TOM LAWRENCE: Yeah, it would be 20 nice to have that. I don't know that I would use it much. 21 I'd like to have it. I probably can accomplish the same 22 thing just by getting the parties together and saying, 23 "How would you-all like to do this electronically as 24 opposed to filing it?" 25 CHAIRMAN BABCOCK: I'm not ordering you to D'Lois Jones, CSR (512) 751-2618 16380 1 do this, but I sure would be pleased. Yeah, Buddy. 2 MR. LOW: Richard, there are lawyers up in 3 Kuntz and different places, they don't have e-mail, they 4 don't plan to get e-mail. They just handle a few cases 5 and so forth, and why would you require them to do 6 something by e-mail? There are lawyers that are kind of 7 retired, they don't -- they just handle a few things, but 8 they still have a law license. I mean, I know lawyers 9 that way. Country lawyers. 10 CHAIRMAN BABCOCK: Okay. 11 MR. GILSTRAP: That's getting about as much 12 sympathy as the judge holding court in his living room. 13 HONORABLE SARAH DUNCAN: I'm not sure that's 14 true. 15 CHAIRMAN BABCOCK: Well, no, you got a lot 16 of sympathy for that, whoever said that. Munzinger said 17 that, and you seconded, Frank, as I remembered. 18 MR. GILSTRAP: I stand corrected. 19 CHAIRMAN BABCOCK: Tom, on subsection (c)? 20 HONORABLE TOM LAWRENCE: All right. If you 21 choose to electronically file or serve a document or agree 22 to receive electronic service then you're also agreeing to 23 provide information regarding any change of your e-mail 24 address to TexasOnline, to the courts, and to any other 25 parties within 24 hours of the change. D'Lois Jones, CSR (512) 751-2618 16381 1 CHAIRMAN BABCOCK: Any comments on this 2 rule? 3 HONORABLE TOM LAWRENCE: E-mails change so 4 much it doesn't do anybody any good if you don't notify of 5 changes. 6 CHAIRMAN BABCOCK: Right. 7 MR. HUGHES: It should say "the party," not 8 "the filer." 9 HONORABLE TOM LAWRENCE: (d), "a party who 10 electronically files a document is not required to 11 electronically serve documents upon other parties unless 12 the court has ordered the party to electronically serve 13 documents," so I'm not sure we need that in view of what 14 we did earlier. 15 CHAIRMAN BABCOCK: Right. 16 HONORABLE TOM LAWRENCE: (e), "a filer may 17 electronically serve a document in instances where the 18 document is traditionally filed as well as the instances 19 where the document is electronically filed." 20 CHAIRMAN BABCOCK: Yeah, Frank, on that. 21 MR. GILSTRAP: There's got to be a better 22 word than "traditionally filed." I mean, does that mean 23 oral pleadings? 24 HONORABLE TOM LAWRENCE: Well, we -- 25 "traditionally filed" is in our definitions. D'Lois Jones, CSR (512) 751-2618 16382 1 MR. GILSTRAP: Is it in the definitions? 2 HONORABLE TOM LAWRENCE: Yes. 3 MR. HAMILTON: I don't understand what that 4 means. 5 CHAIRMAN BABCOCK: Carl. 6 MR. HAMILTON: I don't understand what that 7 means, "the filer may serve," "may electronically serve." 8 MR. HUGHES: It just means that you can 9 e-serve documents -- the documents you can e-serve are not 10 only the ones that you e-file. You could traditionally -- 11 you could file a paper document and then e-serve it if the 12 other side has agreed to e-service. 13 MR. ORSINGER: That qualification isn't on 14 the other side, assuming the other side has agreed to 15 e-service. This appears to be a stand-alone authorization 16 to e-serve something you've filed traditionally. 17 MR. HUGHES: Well, but that's -- (e) -- 18 MR. ORSINGER: Subordinate to some other 19 rule? 20 MR. HUGHES: -- is limited by the general 21 rule in (b) that says you can only electronically serve 22 where it's been agreed to. All (e) is really trying to do 23 is expand the universe of documents that can be 24 electronically served and say it's not limited to the ones 25 you e-file. Because a party might want to traditionally D'Lois Jones, CSR (512) 751-2618 16383 1 file something but then for cost reasons they've got 2 everyone's agreement to send it out by e-mail, for 3 whatever reason they chose not to e-file it. 4 CHAIRMAN BABCOCK: Alan. 5 MR. MARTIN: You may have a situation where 6 something that's filed in a court or jurisdiction that 7 does not have e-filing yet, that's been filed the 8 traditional way, but the litigants to that particular case 9 may be on e-filing and use that service in an adjoining 10 county or whatever. You know, there's an attempt to say 11 you can still serve us a copy to those individuals even 12 though the original case may not have been filed in that 13 county. I mean, this is a service to get the documents to 14 all the appropriate parties, not necessarily just to serve 15 the county in these things. 16 CHAIRMAN BABCOCK: Frank. 17 MR. GILSTRAP: Well, I know that traditional 18 court order and traditional filing, I now know that they 19 are in the definitions, but that still doesn't make them 20 good usage. You could say "paper filing" or something. 21 It's like "traditional summary judgment," which isn't 22 traditional at all. It refers to a codified procedure 23 that's existed since the 1930s. It's hardly traditional. 24 CHAIRMAN BABCOCK: Where's Dorsaneo? 25 MR. ORSINGER: When does it become D'Lois Jones, CSR (512) 751-2618 16384 1 traditional, when it's 90 years old? 2 MR. GILSTRAP: Well, I don't know. It's 3 just not a tradition. When you say traditional you put a 4 lot of baggage on this. Well, we used to do this that 5 way, and that makes it the law. 6 CHAIRMAN BABCOCK: You could make a broadway 7 show tune out of that. 8 MR. GILSTRAP: I mean, I just don't -- if we 9 can keep it out, I think we ought to keep it out at this 10 point and not let it creep in the way "traditional summary 11 judgment" crept into the cases. 12 CHAIRMAN BABCOCK: Okay. Any more comments 13 about (e)? All right. How about 5.2? 14 HONORABLE TOM LAWRENCE: Completion of 15 service and date of service. "Service shall be complete 16 when electronic transmission is -- of the filer to the 17 party. Except as provided the date of service shall be 18 the date the electronic service is complete." When it's 19 after 5:00 p.m. then the date of service will be deemed to 20 be the next day that's not a Saturday, Sunday, or legal 21 holiday. So you can't file something on 5:10 and have it 22 on that date. It will be deemed the next day. 23 CHAIRMAN BABCOCK: How about late filing in 24 places like Harris County, Judge Lawrence? 25 HONORABLE TOM LAWRENCE: What do you mean, D'Lois Jones, CSR (512) 751-2618 16385 1 late filing? 2 CHAIRMAN BABCOCK: Well, if you go down to 3 the district clerk in Harris County at 7:00 o'clock at 4 night it's deemed filed that day, isn't it? 5 HONORABLE TOM GRAY: Filing versus service. 6 MR. ORSINGER: Yeah, this is service. 7 CHAIRMAN BABCOCK: Oh, service. Okay. I'm 8 with you. I'm with you. 9 HONORABLE TOM LAWRENCE: Most JP courts 10 close at 5:00 o'clock, the civil departments at least. 11 CHAIRMAN BABCOCK: Richard. 12 MR. ORSINGER: Maybe we ought to have in the 13 record what happens if the e-mail transmission bounces 14 back and you can see that it was not received. 15 HONORABLE TOM LAWRENCE: Is that an issue? 16 MR. GRIFFITH: It can be an issue if the 17 filer or the party does not keep a current e-mail address 18 and the service goes to an e-mail address that's no longer 19 valid. 20 MR. ORSINGER: Well, I mean, I have problems 21 periodically with my server being down and my e-mail 22 address is as valid as can be, but I can't get e-mails for 23 24 hours, and this says -- this creates if not a 24 presumption maybe it's an irrebuttable presumption that 25 when you send it it's received and yet you have evidence D'Lois Jones, CSR (512) 751-2618 16386 1 back that it was not received, and so my question is what 2 happens when you send it but then it comes back and so you 3 know that it was never received, the other side doesn't 4 know about it? What happens then? 5 HONORABLE TOM LAWRENCE: But it's the date 6 the service provider gets it, right? 7 MR. ORSINGER: No, this is service. This is 8 not e-filing. This is service. So I can have service 9 directly to their e-mail if they have no TexasOnline 10 account. So now I've just sent somebody an e-mail, and so 11 under this rule they've been served, and I've got a 12 hearing at 9:00 o'clock three days from now and then I get 13 an e-mail bounced back in 45 minutes saying that it didn't 14 go through because of something is wrong with the e-mail 15 system. I don't know what all the technology is, but 16 there's reasons why e-mails bounce, and it's not just 17 because you change your e-mail address. So my question is 18 what happens when you find out that they weren't served? 19 Does this not go away? 20 HONORABLE TOM LAWRENCE: Well, that was one 21 of the arguments for only having service through 22 TexasOnline, so you wouldn't have this problem, as I 23 recall. Wasn't that correct, Jody? 24 MR. HUGHES: I think that's right, but under 25 the scenario Richard raises I think service there is not D'Lois Jones, CSR (512) 751-2618 16387 1 complete, and so the serving party hasn't discharged their 2 duty to -- 3 MR. ORSINGER: Why is it not complete? 4 MR. HUGHES: Because it has not been 5 transmitted by the filer to the party. 6 MR. ORSINGER: I don't interpret (a) to mean 7 that at all. I interpret (a) to mean the mailbox rule, 8 that when you put the envelope in the mailbox with the 9 postage it's served; and when I say electronic 10 transmission, admittedly this is ambiguous, but to me that 11 means when you send the electronic signal, not when the 12 other side receives the electronic signal. You're 13 interpreting transmission to be a complete connection 14 between the sender and receiver, and I see this as a 15 mailbox rule that service is complete upon pressing the 16 send button. 17 MR. HUGHES: I certainly agree that it's 18 ambiguous. 19 MR. ORSINGER: Well, do you see how it could 20 be interpreted? 21 MR. HUGHES: I agree. I mean, I agree it's 22 ambiguous. 23 MR. ORSINGER: Well, then we ought to decide 24 if this is really a mailbox rule applied to e-mail boxes. 25 MR. HUGHES: But I don't think we want a D'Lois Jones, CSR (512) 751-2618 16388 1 mailbox rule for the reason that you raise, because then 2 what happens if it bounces back? And can the sender just 3 raise up their arms and say, "Well, I tried. I did my 4 part, and even though it bounced back, it's no longer -- 5 you know, I completed service"? 6 MR. ORSINGER: Then we should say, "Service 7 shall be complete upon a party's receipt of an electronic 8 transmission of documents." 9 MR. HUGHES: That would be better. 10 MR. ORSINGER: Is that the rule we really 11 want? 12 HONORABLE SARAH DUNCAN: So if I'm the 13 lawyer for the party and I just don't give it to my 14 client, it will never be served? 15 CHAIRMAN BABCOCK: Alan. 16 MR. MARTIN: We've already had one situation 17 where a service of copy went to an EFSP and an attorney 18 failed to pick it up. It's the same scenario as if you 19 put something in the mail, you legally stamped it, so with 20 the proper postage. It's properly addressed. It's been 21 going through the legitimate recognized delivery service 22 of the United States Postal Service. It gets to the 23 person's address and they don't open it or it sits on 24 their desk or their receptionist desk or whatever. 25 We guarantee the delivery to this point, and D'Lois Jones, CSR (512) 751-2618 16389 1 it's time/date stamped and all that business, but, you 2 know, many times electronic delivery gets held to a higher 3 standard than our older standards of the manual processes, 4 and we just have to be careful that, you know, it's your 5 intention to get this out and get it filed and get it 6 presented and you've done everything that you should do by 7 the handling of the physical mail. 8 This is kind of the same situation for the 9 electronic. You've sent it, it's gotten through the 10 system, but you can't make them read it. So, you know, 11 just because it got there or if you get a bounce back 12 saying their address is no good, that's far more 13 information than you might have had if you had mailed it 14 off. You know, they may have moved from that address and 15 they're not there anymore. So it's really kind of the 16 same situation off to the side where that demark is, and 17 we've traditionally -- we've looked at it from the side of 18 saying you legitimately provided it in the manner that's 19 prescribed. 20 MR. ORSINGER: That is a mailbox rule. See, 21 he's interpreting this as a mailbox rule. 22 CHAIRMAN BABCOCK: Professor Hoffman. 23 PROFESSOR HOFFMAN: I'm sympathetic that we 24 ought to treat e-service as much as possible like paper 25 service so that I think we ought to track the mailbox rule D'Lois Jones, CSR (512) 751-2618 16390 1 as best we can, but actually, what I was thinking of was 2 you send this e-mail and you immediately get this bounce 3 back that says it didn't get through. That's the 4 equivalent of -- there's a case that came out of the U.S. 5 Supreme Court a couple of years ago called Jones vs. 6 Flowers and this is a Mullane due process case, and the 7 issue that they raise is, well, what would happen if you 8 put your -- you know, your service into the hands of the 9 postal worker and you watched that postal worker drop it 10 into the gutter or something, you know. You know that 11 your letter ain't going to get there. Can you say it was 12 reasonably calculated to effect service? 13 And the Court says, "No, no, no, no way. 14 That wouldn't work," even though you sort of did what you 15 needed to do, and I would say a bounce back seems a whole 16 lot like, you know, the post -- you know, you have 17 information; and so what I would suggest is I like the 18 idea of having the rule consistent with the mailbox rule 19 so that transmission is what you need to do; and if you 20 address that letter wrong, just like if you typed the 21 e-mail address wrong, well, that's on you and you've got 22 to be careful about how you type that e-mail address; but 23 if you've got information like a bounce back that says it 24 didn't get through, you're on notice that something was 25 wrong right then and there, and you can't rely on that D'Lois Jones, CSR (512) 751-2618 16391 1 being a defect at their end that's their problem. 2 MR. MARTIN: Well, in this case with the 3 electronic you can prove that you've done what you need to 4 do. If nobody saw you drop that in the mailbox, you know, 5 and put the proper postage on it and address it properly 6 and it goes off into the ether and it never gets 7 delivered, you've got no audit trail. In our case you 8 have an audit trail. You know when it went in and you 9 know when it got to the EFSP, and if it didn't get picked 10 up from the EFSP or it got picked up but not read by the 11 receiving party, that's a different problem. Okay. So 12 that's the way we've always addressed it. 13 CHAIRMAN BABCOCK: Sarah. 14 HONORABLE SARAH DUNCAN: I thought we were 15 just going to do this with e-mail and not with an EFSP. 16 MR. ORSINGER: Well, the EFSPs will handle 17 e-mails also. 18 HONORABLE SARAH DUNCAN: But they don't have 19 to. 20 MR. ORSINGER: No, I know that. 21 HONORABLE SARAH DUNCAN: You can just use an 22 ISP. 23 MR. ORSINGER: You're exactly right. They 24 had considered requiring everyone to use an EFSP so there 25 would be a paper trail for all of these disputes, but D'Lois Jones, CSR (512) 751-2618 16392 1 without that how am I going to know that you sent me an 2 e-mail that bounced back because I never got it? 3 HONORABLE SARAH DUNCAN: Right. How are you 4 going to know that my law firm had pretty significant 5 e-mail problems this last 10 days? I don't know which one 6 of my e-mails went through. I know which ones I got an 7 e-mail message back from the help desk saying "your 8 message has been delayed," but I don't know if it ever 9 ultimately went through, and at this point I don't know if 10 it's bounced because everybody's holding up our e-mails. 11 So if I don't have to go through an IFSP? 12 HONORABLE NATHAN HECHT: EFSP. 13 HONORABLE SARAH DUNCAN: EFSP, but I can 14 just use my own e-mail account, why can't I just delete 15 all of those bounce back e-mails and say, "Well, I never 16 got notice that my e-mail bounced back, I pressed send and 17 it got sent, so they must have deleted it on their end"? 18 MR. ORSINGER: You know, sometimes -- 19 CHAIRMAN BABCOCK: Because you're an honest 20 person. 21 MR. ORSINGER: Sometimes you can request a 22 confirmation to see if your e-mail was opened. 23 HONORABLE SARAH DUNCAN: You can always 24 request. 25 MR. ORSINGER: The way I do this, and I do D'Lois Jones, CSR (512) 751-2618 16393 1 probably 90 percent of my service on other lawyers by 2 e-mail, is I only send it by e-mail -- or I send it by 3 e-mail alone only to lawyers that I trust. If it's a 4 lawyer I don't trust, I send it to him by e-mail, plus fax 5 or hand-delivery. 6 PROFESSOR HOFFMAN: Is that before the 7 e-mail got there? 8 MR. ORSINGER: That's the way I police it. 9 CHAIRMAN BABCOCK: What percentage? 10 MR. ORSINGER: 90 percent. 11 CHAIRMAN BABCOCK: You don't trust? 12 MR. ORSINGER: No, 90 percent I do trust. 13 CHAIRMAN BABCOCK: Oh. 14 HONORABLE SARAH DUNCAN: But he works in one 15 area of the law. 16 MR. ORSINGER: Admittedly, with people I see 17 over and over again. 18 HONORABLE SARAH DUNCAN: And we're creating 19 a statewide system, and can I make one other comment? 20 CHAIRMAN BABCOCK: Certainly. 21 HONORABLE SARAH DUNCAN: On (a), why are we 22 going to start serving parties instead of lawyers? 23 MR. ORSINGER: A party is a lawyer if 24 they're pro se. 25 HONORABLE SARAH DUNCAN: It includes? Okay. D'Lois Jones, CSR (512) 751-2618 16394 1 Under the definition. That answers that question. 2 CHAIRMAN BABCOCK: Judge Lawrence. 3 HONORABLE TOM LAWRENCE: If you're concerned 4 that the other side is going to play some game then you 5 don't send them the e-mail directly to them. You send it 6 through the service provider through TexasOnline because 7 then you've got a record of it. You've got a way to prove 8 that it was sent and that they received it. 9 MR. MARTIN: Yeah. You may not have as easy 10 a time getting records from an internet service provider 11 because of privacy issues about whether or not your e-mail 12 was delivered or whether or not you received an e-mail, 13 and these bounce backs that we talked about, those are 14 reported just like any other e-mails. So, I mean, the 15 records are generally there, but your ability to get at 16 them is far more limited with a private internet service 17 provider that's sorting your e-mails going through than it 18 is from a public entity like TexasOnline, because we are 19 subject to Open Records. 20 CHAIRMAN BABCOCK: Carl. 21 MR. HAMILTON: If you send an e-mail without 22 going through the provided service how do you prove that 23 the recipient got it? Is there some kind of a -- 24 MR. GILSTRAP: That's the question that 25 Richard raised, is should we require proof of receipt and D'Lois Jones, CSR (512) 751-2618 16395 1 we -- 2 MR. HAMILTON: But how do you know it 3 generally if you send somebody an e-mail? 4 MR. ORSINGER: There are some instances in 5 which when they open the e-mail it will send back a signal 6 telling you that the e-mail was open, but I think there is 7 ways to get around that. 8 MR. GILSTRAP: But we don't do that with 9 regular mail. It's served when it's sent, and you've got 10 a mailbox rule, and the problem with proving receipt is 11 you can't prove it. I mean, what if it wound up in a spam 12 filter or something, he didn't get it. I mean, what is 13 that? I don't think we can put in a requirement that 14 requires you to prove that they received the e-mail. 15 CHAIRMAN BABCOCK: And, I mean, there are a 16 lot of times when you've got somebody, as Richard says, 17 you don't trust, and you send them a letter or send them a 18 certified letter and they won't pick it up, and then 19 you've got to find out another method of serving them so 20 you can prove that you served them. Yeah, Jody. 21 MR. HUGHES: Well, the analogy that the task 22 force was thinking of when it decided to include just 23 straight e-mail transmission between parties was sort of 24 between just dropping a pleading in the mail to somebody 25 versus sending it by registered or certified mail, which D'Lois Jones, CSR (512) 751-2618 16396 1 is the same way here, you get that added documentation if 2 you go through TexasOnline; but the group thought, well, 3 if it's between lawyers that trust each other and they 4 don't want to be forced to incur the extra expense, just 5 like you might not want to incur the extra expense of 6 certified mail to somebody that you know and trust, 7 there's the cheaper option. But I'm troubled by your 8 example of where the address is correct but it still 9 bounces back and whether -- 10 MR. ORSINGER: That happens periodically to 11 everybody. 12 MR. HUGHES: Right, and whether the rules 13 should impose a duty to do something further. 14 MR. ORSINGER: Well, I like the suggestion 15 that was made down here, which is that we ought to have a 16 mailbox rule unless you have evidence that the mailbox 17 rule failed, in which event you have a duty or you then 18 have an ethical obligation as well as an obligation under 19 the rules to find some other way to give them notice; and 20 if you're going to do it in any way based on receipt we're 21 going to have to have a real long discussion here about 22 what constitutes receipt, because for purposes of criminal 23 prosecution for intercepting e-mails receipt occurs at 24 your ISP level, like AOL or hotmail.com or even if it's 25 your own server inside of your own law firm. Even if you D'Lois Jones, CSR (512) 751-2618 16397 1 don't open the e-mail message up or download it from the 2 remote receiver, it's still considered received, or are we 3 going to say receipt is only when you download your 4 e-mails and then that's receipt or is it when you download 5 your e-mails and look at them, is that receipt? 6 If we don't want to get into that debate, 7 which I think would take us more time than we have the 8 rest of the afternoon, it would be better to do it on the 9 basis of sent and then if you receive notice that the 10 sending is a failure then it's not sent. Otherwise assume 11 that it is. 12 CHAIRMAN BABCOCK: Lamont, then Carlos. 13 MR. JEFFERSON: I was going to say that I 14 think just about the same thing. You should always be 15 able to show that you sent something electronically. 16 You're not going to be able to show that the other side 17 received it, and you can't have -- at least through 18 Outlook you can ask for a read receipt, but the other side 19 doesn't have to give you a read receipt. If you say, "I 20 don't want to give" -- even if you got the e-mail you can 21 still read the e-mail and accept the e-mail and say, "I 22 don't want the other side to get a read receipt." 23 So I think we ought to track the mailbox 24 rule as closely as we can. The party serving 25 electronically can always show that they -- and the other D'Lois Jones, CSR (512) 751-2618 16398 1 thing to keep in mind is this is all by agreement, right? 2 I mean, so first of all, the parties are going to all have 3 to have agreed to this electronic service process and 4 presumably agreed to e-mail address, so as long as you can 5 show that you served something electronically to a 6 designated e-mail address and you can do that through your 7 own computer with no cooperation from the other side, then 8 you should be able to show that that's -- that should be 9 effective service. 10 The one instance that makes it interesting 11 is the immediate bounce back, and if you get an immediate 12 bounce back then what's your obligation, and you can go 13 one of two ways. You can say you've got an obligation 14 then to do something else, but if you don't do that 15 something else because you don't get the bounce back 16 because you're out of the office or whatever, does that 17 mean that you haven't served in the first place? And I 18 think that creates problems that maybe we don't want to 19 create, and so the other option is to say -- is to just 20 track the Rule 21a and say even if you can show that you 21 served it, that from your end everything looks like it was 22 fine, nothing prevents the other side from proving that 23 they didn't get it, which is the typical fight that you 24 have if someone says, "You may say you sent it, but I 25 never got it. I don't care if you do have a signed green D'Lois Jones, CSR (512) 751-2618 16399 1 card. " 2 CHAIRMAN BABCOCK: Carlos. 3 MR. LOPEZ: Well, I'm struggling to try to 4 figure out what to do with Lamont's very, very last 5 example where the signed green card has got obviously a 6 signature and they're still saying they didn't get it. 7 You know, I kind of focus on what he talked about, which 8 is it's by agreement, and so, I mean, if you affirmatively 9 said, "Here's my e-mail address for which I agree to be 10 bound for service purposes," and it bounces back because 11 there is a problem on their end, but you have clearly sent 12 it to the right e-mail address at which they told you to 13 send it, I don't see how that's the sender's problem or 14 why it should be the sender's problem. 15 I mean, I think it's a little different than 16 the analogy of you watched the post office guy drop it in 17 the gutter. I think it's a little bit different because 18 here they caused the problem, presumably. I mean, there 19 may be some cases where they didn't, but I think it's 20 different where -- I think it's analogous to the postman 21 is trying to knock on the door, they're inside, they won't 22 open it, so they finally got tired and then threw it in 23 the gutter. 24 MR. JEFFERSON: But I don't think it's as 25 simple as knowing that it's the sender's problem or the D'Lois Jones, CSR (512) 751-2618 16400 1 recipient's problem. I mean, it might be the sender's 2 problem. It might be your exchange server on your end 3 that's not getting the e-mail out like you thought it was, 4 and so -- 5 MR. LOPEZ: Right. 6 MR. JEFFERSON: -- you as a sender hitting 7 send, as far as you know it's gone -- 8 MR. LOPEZ: I'm limiting my example, and 9 that's just one application, to where you've done 10 everything right and it still didn't get there at the 11 place they pre-ordained for you to send it. There I have 12 a real problem with why that wouldn't be considered 13 service, at least constructively. 14 CHAIRMAN BABCOCK: Are we pretty much agreed 15 that we ought to try to have a mailbox rule? I mean, is 16 there a consensus on that? 17 MR. GILSTRAP: But what portion of the 18 mailbox, the one that says you can prove you didn't get 19 it? That part of the mailbox rule? Not the three-day 20 rule. 21 CHAIRMAN BABCOCK: I was thinking -- 22 PROFESSOR HOFFMAN: "Shall be complete upon 23 deposit of the paper." 24 CHAIRMAN BABCOCK: Sarah. 25 HONORABLE SARAH DUNCAN: When we first D'Lois Jones, CSR (512) 751-2618 16401 1 resolved the Jody/Richard disagreement on what electronic 2 transmission is, I note that it's not defined, and I 3 considered them both to be reasonable individuals. 4 CHAIRMAN BABCOCK: I think it is defined. 5 MR. ORSINGER: No, it isn't. 6 HONORABLE SARAH DUNCAN: I consider them 7 both to be reasonable people, so have I electronically 8 transmitted something when I pressed send or when it's 9 received? 10 MR. ORSINGER: Well, if you say received 11 we're going to have to debate what received is because 12 it's not like a letter dropped in your mailbox. There's 13 about three or four different ways or levels. There's 14 successive levels of receipt. 15 CHAIRMAN BABCOCK: You know, it plays into 16 the electronic services that I was thinking of, which is 17 defined, and this may have been said before, but the 18 definition is "electronically transmitting the document to 19 that party's e-mail address," which sounds sort of like 20 the mailbox rule to me. 21 HONORABLE SARAH DUNCAN: It depends on how 22 you define "electronically transmitted." 23 CHAIRMAN BABCOCK: "To that party's e-mail 24 address." 25 HONORABLE SARAH DUNCAN: Jody interprets D'Lois Jones, CSR (512) 751-2618 16402 1 that to mean that it was received in the mailbox -- 2 CHAIRMAN BABCOCK: Right. 3 HONORABLE SARAH DUNCAN: -- of the 4 recipient. Richard interprets that to mean it was sent to 5 the mailbox. 6 CHAIRMAN BABCOCK: That's the way I -- 7 Richard and I are on the same page on that, so -- 8 HONORABLE SARAH DUNCAN: Neither one of 9 y'all was on the task force. 10 MR. HUGHES: And I'm coming around to it, 11 too. 12 CHAIRMAN BABCOCK: We're convincing him. 13 MR. HUGHES: But I wonder if pro ses and 14 others who read this are going to appreciate that. I 15 mean, I think part of the reason everyone here appreciates 16 it is because we're used to the mailbox rule, but I don't 17 know. I mean, if there is a way -- I'm not disagreeing 18 there should be a mailbox rule. I'm just trying to think 19 of a way to phrase it to make it clear. 20 MR. ORSINGER: When I first read that I 21 thought it meant that the transmission was successfully 22 completed, and that was why I asked the question, was are 23 you meaning send or received and you meant received and I 24 thought it meant sent, but I agree that you could 25 interpret it either way, and I don't think we should send D'Lois Jones, CSR (512) 751-2618 16403 1 this out. We ought to take a position. It's either sent 2 or it's received. 3 HONORABLE SARAH DUNCAN: And I think they 4 both made a good point. If someone who wasn't familiar 5 with the mailbox rule had just listened to the last three 6 minutes of discussion, they would think we were crazy, 7 that there is a -- that there is a difference between and 8 significance of sent versus received. 9 CHAIRMAN BABCOCK: Well, how many people are 10 sent people, as opposed to received people? 11 HONORABLE TRACY CHRISTOPHER: Are you still 12 on sent? 13 HONORABLE JANE BLAND: Sent. Sent people. 14 CHAIRMAN BABCOCK: How many people are 15 received people? 16 So 21 to 1, with the chair not voting. 17 MR. ORSINGER: There's one that can't make 18 up her mind. 19 CHAIRMAN BABCOCK: Feels strongly both ways. 20 HONORABLE SARAH DUNCAN: And part of why I 21 can't make up my mind is because there is not at present a 22 definition of "electronic transmission." 23 CHAIRMAN BABCOCK: The reason for that vote 24 I think is to give Jody and Judge Lawrence a sense of the 25 committee's view that it ought to be sent and not received D'Lois Jones, CSR (512) 751-2618 16404 1 so the language can be drafted to reflect that -- to 2 reflect that feeling if the Court thinks that's 3 worthwhile. Judge Christopher. 4 HONORABLE TRACY CHRISTOPHER: I just don't 5 think we should worry too much about the bounce back rule. 6 It's just like if you mail something to someone's address 7 and, you know, it comes back to you a week later, you know 8 they haven't gotten it, and there's nothing in our rules 9 that says, "Oh, well, go try to find out a good address 10 for them," but that's what we do as lawyers. So if you 11 get a bounce back e-mail address you'll call them up. 12 This is all by agreement anyway and say, "What's the deal, 13 your e-mail bounced?" 14 HONORABLE TOM GRAY: Or you're going to go 15 to a hearing and they're not going to be there and you're 16 going to call them from the courthouse and say, "Where are 17 you?" 18 HONORABLE TRACY CHRISTOPHER: "Why aren't 19 you here?" 20 CHAIRMAN BABCOCK: Carl. 21 MR. HAMILTON: Frank mentioned a moment ago 22 about the three-day rule not applying, but I think it 23 should apply. It's the same thing as a fax transmission, 24 and the three-day rule applies to that. 25 CHAIRMAN BABCOCK: Yeah. D'Lois Jones, CSR (512) 751-2618 16405 1 MR. HAMILTON: But we don't say anything 2 about that. 3 MR. ORSINGER: It sure doesn't, and there is 4 an after 5:00 p.m. add one day rule on the faxes, too. 5 HONORABLE SARAH DUNCAN: Speaking of the 6 after 5:00 p.m. how can (b) and (c) co-exist? But then 7 this problem was not a problem back -- 8 CHAIRMAN BABCOCK: Is that existential or -- 9 HONORABLE SARAH DUNCAN: -- on filed but not 10 filed, not accepted for filing. 11 MR. ORSINGER: Before we go on to that, for 12 the old mailbox rule for what we call traditional service, 13 if you don't mind my using that term, Rule 21a has a 14 sentence saying, "Nothing herein shall preclude a party 15 from offering proof that it was not received." They say 16 that service shall be complete upon deposit and postpaid, 17 properly addressed wrapper, but we allow somebody to come 18 in. Here we're saying service is complete and we don't 19 allow them to come in and prove and I'm wondering if we 20 shouldn't. 21 CHAIRMAN BABCOCK: Yeah. Good point. Dee 22 Dee's squirming, according to Angie, and so let's take our 23 afternoon break and be back in 10, 15 minutes. 24 (Recess from 3:33 p.m. to 4:04 p.m.) 25 CHAIRMAN BABCOCK: Judge Lawrence, you got D'Lois Jones, CSR (512) 751-2618 16406 1 anymore in you? 2 HONORABLE TOM LAWRENCE: I do. 3 CHAIRMAN BABCOCK: All right. Where are we? 4 HONORABLE TOM LAWRENCE: 5.3, page 13. 5 CHAIRMAN BABCOCK: 5.3 on page 13. 6 HONORABLE TOM LAWRENCE: This is simply the 7 certificate of service and the parameters. There are four 8 things that you have to put on it, the filer's e-mail 9 address and the fax if it's available, recipient's e-mail 10 address, daytime electronic service, and the last 11 statement that the document has been electronically served 12 and that the electronic transmission was reported as 13 complete or that the document is being electronically 14 served concurrent with the electronic filing of the 15 document. So either you serve the document, then do a 16 certificate of service afterwards, or you can do it all at 17 the same time. So that's consistent both with the regular 18 certificate of service and with the county and district 19 court. 20 CHAIRMAN BABCOCK: Comments? Yeah, Justice 21 Gray. 22 HONORABLE TOM GRAY: Yes, since we have 23 spent a good deal of today focused on the template, I 24 think it's worth noting that Rule 5.3 in the template had 25 been deleted in its entirety, which is the adding three D'Lois Jones, CSR (512) 751-2618 16407 1 days, and just make sure that everybody is aware of that. 2 I personally would leave that in there. 3 CHAIRMAN BABCOCK: Why was it taken out, 4 Judge? 5 HONORABLE TOM GRAY: I think that was the 6 one that was taken out because electronic service is 7 viewed as being somewhat immediate, and the three days was 8 in there for the mailbox or the time of mailing, and 9 that's my recollection of the explanation, but -- 10 HONORABLE TOM LAWRENCE: Well, the task 11 force talked about it, and the task force -- because the 12 transmission is made and the service is effected 13 instantaneously, the three days didn't seem to make any 14 sense to us. That's why we took it out. 15 CHAIRMAN BABCOCK: Well, but when you fax 16 something that's instantaneous, and don't you get three 17 days on that? 18 HONORABLE STEPHEN YELENOSKY: And that's as 19 backward. 20 HONORABLE TRACY CHRISTOPHER: That's just as 21 dumb, too. 22 CHAIRMAN BABCOCK: Sarah. 23 HONORABLE SARAH DUNCAN: You can turn the 24 fax machine off at 5:00 o'clock. I can't turn off my 25 e-mail at 5:00 o'clock. I'm getting it right now. I'm D'Lois Jones, CSR (512) 751-2618 16408 1 required to carry this, so -- 2 CHAIRMAN BABCOCK: By whom? 3 HONORABLE SARAH DUNCAN: The firm. 4 CHAIRMAN BABCOCK: Really? 5 HONORABLE SARAH DUNCAN: Yeah. 6 CHAIRMAN BABCOCK: Oh. 7 MR. ORSINGER: That's life at the 8 plantation, Sarah. 9 HONORABLE SARAH DUNCAN: It's a whole new 10 world. 11 MR. ORSINGER: You can be a sole 12 practitioner if you want to. 13 HONORABLE SARAH DUNCAN: What? 14 MR. ORSINGER: You can be a sole 15 practitioner if you want to. 16 CHAIRMAN BABCOCK: Richard likes bossing 17 himself around. 18 HONORABLE SARAH DUNCAN: We had this same 19 discussion when we adopted fax service, and I believe it 20 was Carl, but I'm not going to name names, there is a 21 concern -- 22 CHAIRMAN BABCOCK: Other than Carl's. 23 HONORABLE SARAH DUNCAN: I didn't say any 24 last names. There is a concern of invidious attempts to 25 serve when everybody will know that there is not going -- D'Lois Jones, CSR (512) 751-2618 16409 1 the lights may be home, but no one's home. 2 CHAIRMAN BABCOCK: Judge Yelenosky reacts 3 strongly to that. 4 HONORABLE STEPHEN YELENOSKY: I said to 5 somebody, I think Lamont, during the break that the 21a 6 for fax machines is sort of judging how long it takes to 7 get somewhere today by how long it would take by horse, 8 and that still does apply for snail mail, but it really 9 doesn't make a lot of sense if -- and at some point we 10 look at the three-day rule, which is probably too short, 11 not because of transmission problems, and were to lengthen 12 that to like 10 days and then cut the fax rule and the 13 electronic service to instantaneous, like hand-delivery, 14 that would make more sense to me. 15 HONORABLE JAN PATTERSON: But, of course, 16 that's not before us today. 17 HONORABLE STEPHEN YELENOSKY: Oh. 18 MR. ORSINGER: Well, but since everyone here 19 really is interested in technological issues or they 20 wouldn't be here, this is probably the best time for us to 21 take a vote on getting rid of the three-day rule for 22 faxes. 23 HONORABLE TOM GRAY: My point was we have it 24 in the rules for faxes, we have it in the rules for 25 district and county court proceedings under e-filing. D'Lois Jones, CSR (512) 751-2618 16410 1 This would be the exception rather than the rule, and I 2 think we ought to fix it all at the same time and to have 3 to put it in here. We know it's there and then when we 4 come back and revisit the three-day rule we fix it all at 5 the same time. That was my observation. Now we can move 6 on. 7 HONORABLE SARAH DUNCAN: And the 8 counter-argument to me is that as long as you've got (c) 9 it shouldn't matter when it lands on the floor in the fax 10 room or the floor of the e-mail -- you're protected by 11 5.2(c), right? That's what gives you time off. Isn't 12 that right? 13 CHAIRMAN BABCOCK: Richard. 14 MR. ORSINGER: I'd like to leave it in here 15 so that when we debate this again in two or three years we 16 can say, "Look, we've already made this change in the JP 17 court and it didn't destroy the judicial system as we know 18 it, so let's go ahead and implement it for district and 19 county courts." 20 MR. HUGHES: And, actually, when this came 21 up in the task force the whole history of the fax filing 22 rule and presence, the task force deliberately took it out 23 of this rule, recognizing that it would be different; and 24 the argument was raised it should be consistent, it's 25 going to cause problems; and the proponents on the task D'Lois Jones, CSR (512) 751-2618 16411 1 force who wanted to change it said, "Let's be the pilot, 2 let's be the ones who break the, you know" -- 3 CHAIRMAN BABCOCK: You said a bad word. 4 HONORABLE TOM LAWRENCE: We wanted to raise 5 a voice of common sense in these rules. 6 CHAIRMAN BABCOCK: Sarah. 7 HONORABLE SARAH DUNCAN: That's what 8 concerns me about all of these, is I have a feeling -- I'm 9 going to sound like a conspiracy theorist, but I predict 10 that when the district and county court e-filing rules 11 come to this group, the courts in which people around this 12 table actually practice, that we will be told we've 13 already approved this in the JP court rules. 14 MR. ORSINGER: I'll be sure to say that if 15 I'm here. 16 HONORABLE SARAH DUNCAN: Okay. That way I 17 would be a prognosticator. 18 CHAIRMAN BABCOCK: Well, are you a leave 19 5.3, the old 5.3 out, or you a leave it in? 20 MR. ORSINGER: I think it makes no sense to 21 add three days for faxes, so I think it doesn't make any 22 sense to add three days for e-mail. 23 HONORABLE SARAH DUNCAN: So this is his 24 beginning assault on the three-day fax rule. 25 CHAIRMAN BABCOCK: Okay. And are you a D'Lois Jones, CSR (512) 751-2618 16412 1 leave it in person? 2 HONORABLE SARAH DUNCAN: Yeah, I think I 3 probably am. 4 CHAIRMAN BABCOCK: Okay. Well, let's take a 5 vote on that, because that would be interesting. How many 6 people think we should not add three days for e-filing, 7 raise your hand? 8 MR. HAMILTON: Just in the JP rule we're 9 talking about. 10 HONORABLE SARAH DUNCAN: Just in the JP 11 rules, Carl, so it's okay if it's just in the JP rules, 12 right? 13 CHAIRMAN BABCOCK: And how many people think 14 that we should have the three days added when you 15 electronically serve? 16 HONORABLE SARAH DUNCAN: Just in the JP 17 rules. 18 CHAIRMAN BABCOCK: Just in the JP rules. 19 HONORABLE SARAH DUNCAN: I don't practice in 20 JP court. 21 MR. ORSINGER: Okay. All you guys in the 22 big cities. 23 CHAIRMAN BABCOCK: 21 to 2 in favor of doing 24 what the task force recommended, which is delete the old 25 5.3 from the district court and county court rules. So D'Lois Jones, CSR (512) 751-2618 16413 1 that answers that. 2 So we're back to the new 5.3, which Judge 3 Lawrence was going through, and any other comments about 4 it? 5 Yeah, Judge Christopher. 6 HONORABLE TRACY CHRISTOPHER: Well, I think 7 the use of the word "completion" is a little unclear, 8 especially in light of all of our sending verses 9 receiving, so I think we should -- when we change it it 10 should say "sent," not "completed." 11 HONORABLE TOM LAWRENCE: In 4 point -- 12 HONORABLE TRACY CHRISTOPHER: In 5.2, 13 completion of service. 14 CHAIRMAN BABCOCK: Okay. 15 HONORABLE TOM LAWRENCE: Oh, 5.2. 16 HONORABLE TRACY CHRISTOPHER: "Service shall 17 be complete upon electronic transmission." Just if we're 18 going to change it to have it mirror the mailbox rule then 19 we should use that sort of language. 20 CHAIRMAN BABCOCK: Okay. 21 HONORABLE TRACY CHRISTOPHER: Whatever it 22 is. 23 CHAIRMAN BABCOCK: Any comments -- thanks. 24 Any comments on 5.3, certification of service? 25 MR. MUNZINGER: Well, given the discussion D'Lois Jones, CSR (512) 751-2618 16414 1 that just took place, what's the reason to talk about 2 completion in subparagraph (iv)? 3 HONORABLE TOM LAWRENCE: Well, what you're 4 saying by use of the word "complete" is that the document 5 has been -- whatever the document is, has been sent and 6 received, what you're saying. 7 MR. MUNZINGER: Well, but that's the problem 8 about the mailbox rule. You're bringing the concept of 9 receipt back into the question of service. 10 HONORABLE TRACY CHRISTOPHER: Right. I 11 think we should delete that first sentence in (iv). 12 CHAIRMAN BABCOCK: Yeah. Any other 13 comments? Going once. 14 HONORABLE TOM GRAY: Well, consistent with 15 you-all's prior vote, why on earth would you want the 16 filer's telecopier number? 17 MR. ORSINGER: Because if the e-mail bounces 18 back we want to be able to fax it conveniently. 19 CHAIRMAN BABCOCK: Okay. Next, Judge. 20 HONORABLE TOM LAWRENCE: 6.1. This deals 21 with the court and how the court signs electronic 22 documents. (a) says that a JP may electronically sign an 23 order by applying his or her digitized signature to the 24 order, but they are not required to electronically sign 25 orders. So if the judge just wants to physically sign D'Lois Jones, CSR (512) 751-2618 16415 1 orders and not electronically sign it, they can do it. If 2 they want to do it electronically then they can do that 3 also. 4 (b) talks about upon electronically signing 5 an order the JP may maintain the electronic order as an 6 official copy of the order or print it and treat the 7 printed order as an official copy of the order. 8 (c), "The JP court may electronically scan a 9 traditional court order." So you can either leave the 10 paper document in the file or you can scan the paper 11 document if you want to, and the scanned court order may 12 then serve as the official copy of the court order. "The 13 court is not required to electronically scan traditional 14 court orders in order to create official electronic court 15 orders. Electronic scanning of the traditional court 16 orders is at the option of the court." So it just gives 17 the court a lot of options as to how they're going to 18 maintain their orders. 19 CHAIRMAN BABCOCK: Any comments on that? 20 MR. HAMILTON: Question. 21 CHAIRMAN BABCOCK: Yeah, Carl. 22 MR. HAMILTON: What do we see on the order 23 that's electronically signed? What does it say? 24 HONORABLE TOM LAWRENCE: Mike. 25 MR. GRIFFITH: With digitized signature D'Lois Jones, CSR (512) 751-2618 16416 1 you'll actually see a facsimile of the judge's signature, 2 just a graphic image on there. 3 MR. ORSINGER: It's like a rubber stamp, 4 only it's an electronic stamp. 5 CHAIRMAN BABCOCK: Richard Munzinger. 6 MR. MUNZINGER: Are the computers that the 7 justices of the peace use either for their clerks or for 8 themselves, are they owned by the county or are they the 9 personal property of the justice of the peace? 10 HONORABLE TOM LAWRENCE: They're owned by 11 the county. 12 MR. MUNZINGER: All over the state? 13 HONORABLE TOM LAWRENCE: Yeah. I mean, some 14 JPs may have a personal computer in their office, but the 15 official computers they use, I don't know of any that are 16 personally owned. They're all going to be purchased by 17 the county. 18 CHAIRMAN BABCOCK: Okay. Judge Patterson. 19 HONORABLE JAN PATTERSON: Well, if Frank is 20 not going to speak up against "traditional" here, I'm not 21 sure what that adds and would suggest that we just delete 22 the word "traditional" in both of those. 23 CHAIRMAN BABCOCK: I'm sorry, I didn't hear 24 what you said, Judge. 25 HONORABLE JAN PATTERSON: Delete the word D'Lois Jones, CSR (512) 751-2618 16417 1 "traditional" in those two sentences in (c). 2 CHAIRMAN BABCOCK: Okay. 3 HONORABLE TOM LAWRENCE: How are you going 4 to distinguish an electronic court order from a paper 5 court order then? 6 MR. TIPPS: Say "paper." 7 HONORABLE JAN PATTERSON: Because you can't 8 scan -- you can only scan one of those, right? 9 HONORABLE TOM LAWRENCE: One of them? 10 HONORABLE STEPHEN YELENOSKY: You scan 11 paper. 12 HONORABLE JAN PATTERSON: You scan paper. 13 HONORABLE TRACY CHRISTOPHER: Just say 14 "paper." 15 HONORABLE TOM LAWRENCE: Well, but, I mean, 16 we've defined "traditional" as being a paper document in 17 the definitions. 18 HONORABLE STEPHEN YELENOSKY: Well, I guess 19 the suggestion is to go back and change the definitions. 20 HONORABLE TRACY CHRISTOPHER: Wants it out. 21 CHAIRMAN BABCOCK: Yeah. 22 MR. TIPPS: I just like "paper" better than 23 "traditional." I don't know why we're defining paper as 24 traditional and using the word "traditional" rather than 25 just say "paper order" as opposed to a electronic order. D'Lois Jones, CSR (512) 751-2618 16418 1 HONORABLE TOM LAWRENCE: Well, I don't know 2 why we did that four years ago, but we're trying to keep 3 it consistent so as to not cause confusion among the 4 attorneys that file in all three. It's not a big deal one 5 way or the other, but we're just trying to keep everything 6 as consistent as possible. 7 MR. TIPPS: Okay. 8 CHAIRMAN BABCOCK: Any other comments? 9 Okay. Judge, you want to go to 6 point -- 10 HONORABLE TOM LAWRENCE: 6.2, viewing of 11 electronically filed documents. (a) simply says that the 12 court has to maintain those documents and ensure that they 13 can be viewed in some format. "(b), independent of the 14 TexasOnline system the requirement of viewing access 15 described in (a) above, the JP court may choose to provide 16 for both filers and the general public to electronically 17 view documents or court orders that have been 18 electronically filed or scanned. Where such provisions 19 have been made, persons may electronically view documents 20 or court orders that have been electronically filed or 21 scanned." And "nothing in this rule allows for the 22 viewing of documents or court orders in any form that are 23 legally confidential, like mental health proceedings, or 24 otherwise restricted by a judicial rule or order." 25 So that's pretty straightforward. Basically D'Lois Jones, CSR (512) 751-2618 16419 1 whatever documents you have you can look at if they've 2 been filed electronically, and we've got all sorts of 3 Judicial Administration Act and the Open Records Act that 4 apply to what you have anyway, so this is consistent with 5 all of that and consistent with county and district court 6 e-filing rules. 7 HONORABLE JAN PATTERSON: I think we usually 8 say "without charge" instead of "for free." 9 HONORABLE TOM LAWRENCE: Okay. 10 CHAIRMAN BABCOCK: Sarah. 11 HONORABLE SARAH DUNCAN: The -- I can't 12 remember what we called them, all those rules designed to 13 present identity theft that the court adopted. 14 HONORABLE TOM GRAY: Sensitive data. 15 HONORABLE SARAH DUNCAN: Sensitive data. 16 Those haven't been adopted? 17 CHAIRMAN BABCOCK: Have not been adopted, 18 right. 19 HONORABLE SARAH DUNCAN: Okay. 20 MR. ORSINGER: When they are adopted there 21 will be a rule that makes them confidential. By that time 22 there will a be rule making that separate information 23 sheet confidential. 24 CHAIRMAN BABCOCK: This subpart (c), 25 "Nothing in this rule allows for the viewing of documents D'Lois Jones, CSR (512) 751-2618 16420 1 or court orders in any form that are legally 2 confidential." So if I e-mail somebody a pleading that 3 might have something subject to a protective order, this 4 doesn't apply, I take it, if I e-mail to my opponent -- 5 MR. ORSINGER: If it's a protective order it 6 will be restricted by judicial rule or order. 7 CHAIRMAN BABCOCK: So my opponent can't read 8 it? 9 MR. ORSINGER: No, your opponent, 10 theoretically your opponent would be within the scope of 11 people that can read it by the terms of the order. 12 CHAIRMAN BABCOCK: Okay. 13 HONORABLE STEPHEN YELENOSKY: Why can't we 14 just say in (a) "by law or statute or court order"? 15 HONORABLE SARAH DUNCAN: Is the -- 16 HONORABLE TOM LAWRENCE: I don't know where 17 (c) came from. This is, again, an existing county and 18 district e-filing rule, but to me what they're trying to 19 say is, you know, if it's something that the public cannot 20 look at like a mental health proceeding, since the JP 21 court's do that, and notwithstanding anything else, you 22 can't allow the public access to that. I think it's just 23 setting up some restrictions. 24 HONORABLE STEPHEN YELENOSKY: But (a) says 25 that. D'Lois Jones, CSR (512) 751-2618 16421 1 CHAIRMAN BABCOCK: Yeah, it just -- 2 MR. ORSINGER: It doesn't really say that. 3 (a) says that you're required to do it for 4 nonconfidential, but it doesn't prohibit you from doing it 5 for confidential. You can infer that that's prohibited. 6 CHAIRMAN BABCOCK: You just except those. 7 Now, the thing that jumped out at me on (c) was could you 8 restrict a party who would be entitled to see it through 9 (c), but that's not a reasonable interpretation. 10 MR. ORSINGER: If there was a court order 11 you could. 12 HONORABLE SARAH DUNCAN: But -- 13 MR. ORSINGER: I've had judges that would 14 say that certain psychological test results or drug test 15 results can't be shown to the parties. It may be 16 unconstitutional, but it happens. 17 HONORABLE STEPHEN YELENOSKY: This is a rule 18 as to access to the court file. It doesn't even speak to 19 communications or transfers between attorneys, is my 20 understanding, and so why are you worried about that? 21 CHAIRMAN BABCOCK: Sarah. 22 HONORABLE SARAH DUNCAN: I just hesitate to 23 even hold up my hand anymore, but I have a similar 24 question. How can (a) and (c) co-exist? (a) says they've 25 got to enable viewing in some format unless it's D'Lois Jones, CSR (512) 751-2618 16422 1 confidential or privileged by law or statute. (c) says 2 this rule doesn't permit people to look at things that are 3 legally confidential or restricted or access is restricted 4 by rule or order. Well, those aren't coterminus bodies of 5 law. Law and statute over here, legally confidential -- I 6 think that probably incorporates law or statute, judicial 7 rule or order. 8 HONORABLE STEPHEN YELENOSKY: Well, order, 9 that's why I was saying just add in (a) "court order," you 10 know, if you don't consider that to be law, and then they 11 are coterminus or completely synonymous. 12 HONORABLE SARAH DUNCAN: Okay. 13 HONORABLE STEPHEN YELENOSKY: Because a 14 judicial rule certainly is law, and we have to spell out 15 regulations and everything else that are law. 16 HONORABLE SARAH DUNCAN: Well, to avoid 17 confusion, why don't we just use the same terms in (a) and 18 (c)? 19 HONORABLE STEPHEN YELENOSKY: Well, I'm just 20 saying why do we to add them? Why do you need (c) at all? 21 HONORABLE SARAH DUNCAN: Maybe I misread it. 22 I thought what (c) was trying to say is if you can't look 23 at the piece of paper because it's legally confidential or 24 is protected by judicial rule or order, this rule doesn't 25 authorize viewing of it because it was filed D'Lois Jones, CSR (512) 751-2618 16423 1 electronically. 2 HONORABLE STEPHEN YELENOSKY: Well, how 3 could a rule do that anyway if the exception in (a) is 4 it's made confidential by law, statute, or court order? 5 The rule couldn't override that. 6 HONORABLE SARAH DUNCAN: But I think that's 7 precisely what this rule is saying, is that it's not 8 intended to trump a pre-existing law or statute that makes 9 something legally confidential or judicial rule or order 10 that makes something confidential. 11 HONORABLE STEPHEN YELENOSKY: Well, and it's 12 not important to what -- 13 HONORABLE SARAH DUNCAN: Is that what it was 14 intended -- 15 HONORABLE STEPHEN YELENOSKY: I'm saying 16 it's unnecessary to say that. 17 HONORABLE SARAH DUNCAN: -- to do, was say 18 nothing in this rule is going to enable access of 19 something to which I couldn't have had access before? Is 20 that what it's meant to do in the pilot rules? 21 MR. HUGHES: I think that's what the 22 original one was, but I wasn't around when they did the 23 template for district and county, but that's my 24 understanding of what the provision says. I think you're 25 correct. D'Lois Jones, CSR (512) 751-2618 16424 1 CHAIRMAN BABCOCK: Carl. 2 MR. HAMILTON: Does that mean that if we 3 file something electronically that's not for public 4 viewing we have to somehow tell the filing people they've 5 got to put that in a separate file or something so people 6 can't see it? 7 CHAIRMAN BABCOCK: I would guess so. I 8 mean, just like when you file something under seal, you've 9 got to make sure the clerk knows that. 10 HONORABLE TOM LAWRENCE: If something is 11 filed in a civil suit then the court is going to presume 12 that the public can see whatever it is. 13 CHAIRMAN BABCOCK: Right. 14 HONORABLE TOM LAWRENCE: There would be no 15 way that we would necessarily know that some document was 16 privileged that a plaintiff files. 17 MR. HAMILTON: But if we file something and 18 we tell you it's not to be seen, what do you physically do 19 with it? 20 HONORABLE TOM LAWRENCE: Well, I guess my 21 first question would be under what authority can I not let 22 someone look at it? 23 MR. HAMILTON: Maybe it's a trade secret or 24 something. 25 MR. ORSINGER: Better have a court order if D'Lois Jones, CSR (512) 751-2618 16425 1 you're going to file a trade secret. 2 HONORABLE STEPHEN YELENOSKY: Yeah. 3 CHAIRMAN BABCOCK: Buddy. 4 MR. LOW: Chip, how does all of this come 5 within 76a, you know, 75 and 76a, they say everything is 6 open to the public unless, you know, it's sealed, and you 7 have to go through a procedure of sealing it. How does 8 this comport to that? 9 HONORABLE STEPHEN YELENOSKY: It's no 10 different from "traditional," or as we like to call it, 11 "paper." 12 MR. LOW: But 75a says that, you know, that 13 anybody interested in it can see all the papers and orders 14 in the court that are part of the records, except then 76a 15 makes an exception. 16 HONORABLE STEPHEN YELENOSKY: Right. I 17 mean, well, interpreting 76a with respect to paper is 18 sometimes a problem even for lawyers, who can just bypass 19 it by agreement, but it's the same problem. And what the 20 clerk does, the clerk looks for an order. 21 MR. LOW: But, see, like if something is 22 confidential I claim, I'll mark it "privileged." We'll 23 agree, the parties will agree, it will be privileged. It 24 really won't be filed or something, and until we go 25 through the process then it doesn't become a part, but D'Lois Jones, CSR (512) 751-2618 16426 1 once -- I've always been of the opinion once it becomes of 2 record the only way I can keep Adam and Eve and everybody 3 else from seeing it is to seal it. And here -- and I'm 4 sure there must be in family cases or health cases orders 5 that are confidential. I have a lot of trouble finding 6 any order unless it's by statute confidential. 7 CHAIRMAN BABCOCK: Judge Lawrence. 8 HONORABLE TOM LAWRENCE: Well, to me there's 9 a difference between (a) and (c). (a), "except those made 10 confidential or privileged by law or statute." That's 11 narrower to me, so there's got to be either a law or a 12 statute that says that something is confidential or 13 privileged. 14 (c) is a little broader. It just says that 15 are legally confidential. To me there's a little more 16 room to argue something should be confidential under (c). 17 HONORABLE STEPHEN YELENOSKY: Well, as a 18 practical matter, what does the clerk do? The clerk looks 19 for an order that says "sealing," right? 20 MS. WOLBRUECK: That's right. Unless it's 21 confidential by law. 22 HONORABLE STEPHEN YELENOSKY: Unless it's 23 confidential by law. 24 HONORABLE TOM LAWRENCE: Well, I don't know 25 if this makes any difference, but I can't ever remember D'Lois Jones, CSR (512) 751-2618 16427 1 having a document filed by a plaintiff or defendant in a 2 civil case that was confidential or privileged. Now, 3 other records that I maintain, like mental health stuff 4 would be, but that's not going to be part of a civil suit 5 that I can think of. So I don't know what -- as a 6 practical matter I can't think of what would come under 7 this. 8 MR. BOYD: Doesn't Rule 12 of the Rules of 9 Judicial Administration address all court records and 10 confidentiality? 11 MR. HUGHES: No. That only applies to -- 12 that applies to noncase records. That's only 13 administrative records. 14 HONORABLE STEPHEN YELENOSKY: 76a is -- 15 MR. BOYD: 76a is sealing. 16 HONORABLE STEPHEN YELENOSKY: Sealing. 17 MR. LOW: 76 says they're all open to -- 18 HONORABLE STEPHEN YELENOSKY: It defines, 19 yeah, what's a court record and then the exceptions, all 20 family law cases. Anything arising under the Family Code 21 is an exception and then they get certain others. 22 MR. LOW: Yeah, but that's by statute or by 23 code. 24 CHAIRMAN BABCOCK: Alex. Alex, did you have 25 a comment? D'Lois Jones, CSR (512) 751-2618 16428 1 PROFESSOR ALBRIGHT: It just seems like this 2 is not a problem that's created by these rules. This is a 3 problem that's there with the paper record, too, is if you 4 file something and it's confidential, whoops, you 5 shouldn't have done that, and so you have to get an order 6 sealing it, and it would be the same thing when you file 7 it electronically or in paper. Right? 8 HONORABLE STEPHEN YELENOSKY: That's right. 9 CHAIRMAN BABCOCK: Well, is there a problem 10 with (c) or not? 11 HONORABLE TOM LAWRENCE: No. 12 CHAIRMAN BABCOCK: Judge Lawrence says "no." 13 Anybody else say "yes"? 14 MR. ORSINGER: In my view the problem is 15 with (a) and not with (c). 16 CHAIRMAN BABCOCK: Well, the question was 17 (c). 18 MR. ORSINGER: I know. 19 HONORABLE SARAH DUNCAN: I think there's a 20 problem with the interface between (a) and (c). 21 CHAIRMAN BABCOCK: The interface between. 22 You guys have a solution? Richard? 23 MR. ORSINGER: I would make them parallel, 24 similar to (c), because it seems to me like (c) is broader 25 than (a), and it seems to me they ought to be coterminus, D'Lois Jones, CSR (512) 751-2618 16429 1 to borrow that word. 2 HONORABLE SARAH DUNCAN: I can't imagine 3 providing for viewing in some format of a document that's 4 made confidential by court order. 5 MR. ORSINGER: That's why I think "order" 6 ought to be added to (a) and then that brings (a) into 7 alignment with (c), even though "legally confidential" is 8 not the same as "confidential or privileged by law or 9 statute." 10 HONORABLE STEPHEN YELENOSKY: Well, if you 11 want the substance of (c) in there and you don't want to 12 take it out, although I still think it's suspenders to 13 (a)'s belt, just put it in (a), rather than separating it 14 by (b) that has nothing to do with it. 15 CHAIRMAN BABCOCK: Yeah. That's not a bad 16 idea. 17 HONORABLE TOM LAWRENCE: That will be fine. 18 CHAIRMAN BABCOCK: Okay. Let's go to 7.1. 19 HONORABLE TOM LAWRENCE: 7.1 says that if 20 there is a dispute the JP who presides over that court 21 will resolve it. 7.2 is the rule I've been looking for 22 all day. "These rules shall be liberally construed so as 23 to avoid undue prejudice to any person on account of using 24 electronic filing system or sending or receiving 25 electronic service in good faith." Kind of a catch-all, D'Lois Jones, CSR (512) 751-2618 16430 1 do the right thing. 2 CHAIRMAN BABCOCK: Richard Munzinger. 3 MR. MUNZINGER: The only concern I have with 4 7.2 is that it doesn't say that you can't prejudice a 5 person who doesn't electronically file, and we've been 6 concerned all day long about the constituents of the 7 people that use justice courts in many instances not using 8 or having computers or what have you, and the prejudice 9 portion here tends to tilt toward the use of the 10 electronic filing, distinct from whether you use it or 11 not. 12 CHAIRMAN BABCOCK: Justice Gray. 13 HONORABLE TOM GRAY: Well, I was just going 14 to say, but this is consistent with the template. 15 HONORABLE NATHAN HECHT: Which this 16 committee wrote. 17 MR. ORSINGER: Which is, by the way, the 18 traditional version of this rule. 19 HONORABLE NATHAN HECHT: Which this 20 committee wrote. 21 MR. GILSTRAP: Chip? 22 CHAIRMAN BABCOCK: Yes? 23 MR. GILSTRAP: We're in the last stages. 24 CHAIRMAN BABCOCK: Are we in the last 25 stages? D'Lois Jones, CSR (512) 751-2618 16431 1 MR. GILSTRAP: We're in the last stages. 2 CHAIRMAN BABCOCK: Yeah, we are in the last 3 stages. It's true. Okay. Well, Judge Lawrence, thank 4 you. Thank you very much. Sorry about all the 5 wisecracks. 6 HONORABLE TOM LAWRENCE: Well, I want to add 7 one thing, that really the key person in all of this is 8 Jody Hughes. He did a tremendous job in putting all of 9 these documents together, taking notes, and working on it. 10 He was just invaluable through the whole process. 11 CHAIRMAN BABCOCK: So the beating will be 12 administered to -- 13 MR. HUGHES: All the problems in it are 14 caused by me. 15 MR. ORSINGER: Was that a compliment or were 16 you just passing the blame? 17 HONORABLE JAN PATTERSON: He just wants you 18 to keep working, Jody. 19 HONORABLE STEPHEN YELENOSKY: Thanks for 20 your work. 21 CHAIRMAN BABCOCK: He will be the subject of 22 the beatings tomorrow. By the way, I know that we are on 23 a very short time fuse. Jody, I know you're going to go 24 and revise the rules based on these comments. Does 25 anybody want to see another draft of these things before D'Lois Jones, CSR (512) 751-2618 16432 1 they go out for public comment? 2 MR. BOYD: Can we plan a special meeting? 3 MR. TIPPS: Special meeting for now. 4 HONORABLE JAN PATTERSON: I think a 5 conference call would suffice. 6 HONORABLE DAVID PEEPLES: Special Saturday 7 meeting. 8 CHAIRMAN BABCOCK: Justice Gaultney. 9 HONORABLE DAVID GAULTNEY: I didn't want to 10 see a copy of the rules. I did want to make the point for 11 the record that I think one problem with using the 12 template is that it was -- it is a supplement in the 13 district courts to rules they already have and apply, so 14 to the extent the rules reference a Texas Rule of Civil 15 Procedure, we need to be mindful that Rule 523 in the 16 justice of the peace court doesn't make all the rules 17 applicable, and secondly, in the small claims court I'm 18 not sure any of these rules are applicable. So my 19 suggestion would be that when a rule is referenced that 20 perhaps the intent of the rule, the reason it's being 21 referenced, be stated rather than actually referencing the 22 rule number itself. 23 CHAIRMAN BABCOCK: Okay. 24 HONORABLE STEPHEN YELENOSKY: What about 25 attaching the rule? D'Lois Jones, CSR (512) 751-2618 16433 1 HONORABLE DAVID GAULTNEY: I don't know. 2 Just small claims courts litigants are not generally going 3 to have or work off Rules of Procedure and the justices 4 don't apply them in those circumstances. 5 HONORABLE STEPHEN YELENOSKY: Well, there's 6 only, what, how many rules referenced in there? 7 MR. ORSINGER: About a dozen. 8 HONORABLE TOM LAWRENCE: In the e-filing? 9 MR. ORSINGER: About a dozen, I think. 10 HONORABLE TOM LAWRENCE: Not that many. I 11 didn't count. Five or six maybe. I'm not sure. The same 12 one is referenced more than once. 13 HONORABLE DAVID GAULTNEY: But the 14 implication there is that those rules may apply in small 15 claims court. If there is a specific part of the rule 16 that is intended to apply and still maintain the easy 17 access involved in small claims, perhaps that could be 18 stated. That's all I'm suggesting. I didn't mean to open 19 up this discussion for another hour, but I think that is 20 an important distinction between small claims courts, JP 21 courts, and what -- and the template that's being applied 22 in district courts. 23 CHAIRMAN BABCOCK: Okay. To the extent Jody 24 feels comfortable in sending a redraft out to everybody he 25 will do it, and if you don't get it then you'll know he D'Lois Jones, CSR (512) 751-2618 16434 1 didn't feel comfortable doing it. 2 HONORABLE SARAH DUNCAN: How do I know that 3 he didn't feel comfortable doing it as opposed to it 4 bounced back? I'm serious. 5 CHAIRMAN BABCOCK: You're just going to have 6 to take it on faith. 7 MR. HUGHES: If I see it bounce back I'll 8 resend it. 9 CHAIRMAN BABCOCK: Okay. Let's see what 10 we've got left. Richard, you've got this -- 11 MR. ORSINGER: I can get a partial 12 presentation out if you'd like. 13 CHAIRMAN BABCOCK: Yeah, that'd be good. 14 MR. ORSINGER: This is on 3 -- this is on -- 15 pardon me. 16 CHAIRMAN BABCOCK: Draft 7.2, right? 17 MR. ORSINGER: No. Well, you could call it 18 that. Would you-all look at the document that's titled 19 "Proposed TRCP regarding automatic substitution of current 20 state officers as successors in suits." 21 CHAIRMAN BABCOCK: And before you get going 22 on that, let's just see what else we have. Rule 6 got 23 taken care of. Jody, are you going to handle proposed new 24 Rule 9.8? 25 MR. HUGHES: I can, because I think Bill D'Lois Jones, CSR (512) 751-2618 16435 1 told me he's not going to be here. 2 CHAIRMAN BABCOCK: He's not going to be 3 here, but you can handle that? Judge Lawrence, are you 4 prepared to go into these garnishment rules? Tomorrow, of 5 course, but -- 6 HONORABLE TOM LAWRENCE: Oh, yeah. I'm 7 ready. 8 CHAIRMAN BABCOCK: And, Alex, you have some 9 stuff from the oversight committee? 10 PROFESSOR ALBRIGHT: Yeah, I do. We're 11 ready to go. 12 CHAIRMAN BABCOCK: Richard, let's get 13 started on your -- 14 MR. ORSINGER: Okay. The problem is someone 15 had noticed that our appellate rules provide for lawsuits 16 involving public officers when the identity of the officer 17 changes while the suit is proceeding, like a class action 18 against the attorney general and the new attorney general 19 is sworn in. You don't deal with that in the trial rules 20 even though we deal with it in the appellate rules. The 21 Federal Rules of Civil Procedure deal with it, and the 22 Federal Rules of Appellate Procedure deal with it, and my 23 particular subcommittee was fairly indifferent to the 24 oversight. 25 So what I had tried to do is to bring to you D'Lois Jones, CSR (512) 751-2618 16436 1 the alternatives, because I think we could rapidly reach a 2 consensus, and my suggestion of the way to approach this 3 problem is for you to open pages two and three so that 4 they're side by side, and let's look at the Federal civil 5 procedure rule and the Federal appellate rule so that we 6 can see those concepts. Then look at the Texas appellate 7 rule and decide on the Texas trial rule. 8 On the left-hand side of the page two is 9 Federal Rule of Civil Procedure 25. Subdivision (d) has 10 to do with public officers, death or separation from 11 office. On the right-hand page is appellate Rule 43, 12 Federal appellate Rule 43, and you can see that 13 subdivision (c) is for public officers, identification, 14 and substitution. I want to show you some parallels in 15 here and then point out how we really differ in Texas 16 practice. The first thing I note is that the trial rules 17 on the left, subdivision (2), (d)(2), is the same as 18 subdivision (c)(1) in the appellate rules. So they really 19 provide the same concept, they just change the location. 20 Another thing I'd like to point out is they 21 use the term "public officer" without defining it, but the 22 Federal people seem to be satisfied that "public officer" 23 includes the people we should be concerned with about 24 moving in and out of office. I would also point out that 25 in both the Federal trial rule and the Federal appellate D'Lois Jones, CSR (512) 751-2618 16437 1 rule they describe the proceeding as an action. Not a 2 cause or a suit, it's an action. That's what the Federal 3 rules relate it to. The Federal trial rule on the left 4 triggers when the public officer dies, resigns, or 5 otherwise ceases to hold office, and the appellate rule on 6 the right, subdivision (2), does the same thing, "dies, 7 resigns or otherwise ceases to hold office." 8 There is another concept that's important, 9 and that is that both the trial rule in the second line 10 and the appellate rule, subdivision (2), third line, 11 provides that the suit does not abate, and then the 12 appellate rule breaks into two sentences about not abating 13 and about the successor being automatically substituted. 14 The trial rule has them all in one sentence, so generally 15 speaking, these rules are very, very similar with this 16 concept of public officer dies, resigns, or otherwise 17 ceases, the use of the word "action," the statement it 18 does not abate, the concept that if you don't -- you don't 19 have to mention them by name, but if you do, the court can 20 order you to mention the attorney general or the public 21 officer by name, but if you fail to do it, it doesn't make 22 any difference. 23 Okay. If you'll take those concepts in mind 24 and flip back to the first page, we have attempted to 25 address this in our Texas Rules of Appellate Procedure, D'Lois Jones, CSR (512) 751-2618 16438 1 and you can see that instead of calling them "Public 2 officers, death or separation or substitution," it's 3 called "Public officers, automatic substitution of 4 officer." 5 "When a public officer is a party in an 6 official capacity to an appeal or original proceeding" -- 7 now, it doesn't say "action" like either one of the 8 Federal rules. It says "appeal or original proceeding." 9 "If that person ceases to hold office before the appeal or 10 original proceeding is finally disposed of, the public 11 officer's successor is automatically substituted as a 12 party, if appropriate." 13 I would like to say at this point that we do 14 not say that the suit does not abate and the public 15 officer successor is automatically substituted. That 16 concept of having it that it's not abated and is 17 automatically substituted is not in subdivision -- is not 18 in TRAP 7.2(a). The reason is, is that we have a special 19 abatement rule in 7.2(b), and that special abatement rule 20 is that if you have an original proceeding, which 21 primarily is going to mean mandamus, then the appellate 22 court is required to abate the mandamus proceeding and to 23 send the matter back down to the trial court so that the 24 new judge, who is now an -- is a public officer who is a 25 litigant because a mandamus is against them, the new judge D'Lois Jones, CSR (512) 751-2618 16439 1 has to be given an opportunity to rule again on the order 2 that led to the mandamus. 3 Now, that's a concept that we introduced 4 into the Texas appellate rules that are not in the Federal 5 trial rules or in the Federal appellate rules, this idea 6 that a mandamus must be abated to give the new 7 officeholder to rerule on the order, because the mandamus 8 will issue against the new judge even if it was a ruling 9 from the old judge, but other than that you'll see that 10 the appellate rule on the Texas side is conceptually 11 similar to both the Federal trial rule and to the Federal 12 appellate rule. 13 Having said all that, you go back to the 14 Texas trial level and you find out we don't have a trial 15 rule for substituting official or public officers. It's 16 just missing, and it's the series of Rules 151 through 161 17 that talks about all the substitution of parties and death 18 of parties and everything else that we just simply have 19 never included what happens when you have a public officer 20 that's a party to a lawsuit and then they're replaced. So 21 if you care to do something about this oversight we could 22 take the language of the Texas appellate rule, which is a 23 little bit modernized from either the Federal trial rule 24 or the Federal appellate rule, but fold the concept of the 25 suit does not abate back into it and use our Texas D'Lois Jones, CSR (512) 751-2618 16440 1 language at the trial level that's like our Texas language 2 at the appellate level. 3 Now, actually, any of these rules would be a 4 serviceable substitute, but remember, on the Federal side 5 they use the word "action" to describe the court 6 proceeding, and in Texas Rules of Procedure 151, 152, 153, 7 155, 158, 159, 160, and 161 we refer to it as a "suit." 8 So if we were to use the Federal pattern we would use the 9 word "suit." If we wanted to pick up the TRAP rule, we 10 would not use "an appeal or original proceeding." We 11 would use "in an official capacity to a suit," "as a party 12 in an official capacity to a suit." 13 So my proposal, which doesn't have the 14 support of my subcommittee, which doesn't have an official 15 position on this change, is that we would take the TRAP 16 rule and make a few changes to it, and I think it would be 17 serviceable. We could say, "Automatic substitution of 18 officer. When a public officer is a party in an official 19 capacity to a suit," comma, "and if that person ceases to 20 hold office before the suit is finally disposed of," 21 comma, "the suit does not abate, and the public officer's 22 successor is automatically substituted as a party, if 23 appropriate. Proceedings following substitution are to be 24 in the name of the substituted party, but any misnomer 25 that does not affect the substantial rights of the parties D'Lois Jones, CSR (512) 751-2618 16441 1 may be disregarded. Substitution may be ordered at any 2 time, but failure to order substitution of the successor 3 does not affect substitution," and then obviously we would 4 have no subdivision (b) regarding abatement of original 5 proceedings, because although technically a district judge 6 can mandamus the city clerk or the mayor or something, I 7 don't think we really want to involve ourselves in that 8 esoteric lawsuit. 9 So that's my proposal, is they're all kind 10 of conceptually similar, but the Federal language is a 11 little bit different and that we ought to just use our 12 TRAP rule as a model, take it back down to the trial court 13 level, call it a suit, include the concept that the suit 14 does not abate, and then let's adopt that as 159a, TRCP 15 159a. That's what I have to say. 16 CHAIRMAN BABCOCK: All right. Carl. 17 MR. HAMILTON: Will we still need that word 18 "if appropriate" in there? 19 MR. ORSINGER: You know, if we took it out 20 it would still be in the appellate rules and not in the 21 trial rules, so I don't know why it's in the appellate 22 rules. It's kind of like Jody being blamed for the stuff 23 that we did two years ago. It's in the appellate rules. 24 We thought they were great when we promoted them. 25 MR. HAMILTON: When would it not be D'Lois Jones, CSR (512) 751-2618 16442 1 appropriate to substitute? 2 MR. ORSINGER: I wish Dorsaneo was here. 3 I'm sure he could tell us. We've lost all our law 4 professors. Oh, no. 5 HONORABLE STEPHEN YELENOSKY: Hey, hey. 6 MR. ORSINGER: Okay, Alex. When would it 7 not be appropriate? 8 PROFESSOR ALBRIGHT: There's Lonny, too. 9 MR. ORSINGER: I withdraw my statement. 10 Would you-all help us and tell us? 11 PROFESSOR HOFFMAN: I have no idea. 12 MR. ORSINGER: When would it not be 13 appropriate? 14 PROFESSOR ALBRIGHT: Well, Lonny, I'll let 15 you answer that one. 16 PROFESSOR HOFFMAN: Thank you, Professor 17 Albright. 18 HONORABLE NATHAN HECHT: Well, when it's 19 going out the door, when it's on a motion for rehearing, 20 and the court's still got jurisdiction but don't want to 21 fool with it anymore. There are lots of instances. Say 22 somebody's filed a motion for rehearing and you're going 23 to deny it. Are you going to change the caption? 24 Probably not. 25 CHAIRMAN BABCOCK: Professor Hoffman. D'Lois Jones, CSR (512) 751-2618 16443 1 PROFESSOR HOFFMAN: The only thing I would 2 add to what you said earlier would be that you've got the 3 old version of the Federal rules that you were reading 4 from. 5 MR. ORSINGER: Uh-oh. 6 PROFESSOR HOFFMAN: The restyled rules that 7 are about to go in effect in December are almost exactly 8 what you just read that you wanted the rule to be except 9 the word "action" is in there. So I guess I would just 10 direct you to the restyled rules. I think they do exactly 11 what you want them to do, and there were a whole lot of 12 wise wordsmiths who tried to clean it up already. 13 HONORABLE NATHAN HECHT: But the restyled 14 appellate rules are already in effect, right? 15 PROFESSOR HOFFMAN: The appellate rules are 16 in, yes. 17 MR. ORSINGER: Are you talking about the 18 restyled trial rules, Federal trial rules? 19 PROFESSOR HOFFMAN: Yeah, right, the Federal 20 Rules of Civil Procedure. 21 HONORABLE NATHAN HECHT: Right. I think we 22 took the Texas appellate rule from the restyled Federal 23 appellate rule, which is what you quoted there. 24 PROFESSOR HOFFMAN: And it's almost 25 identical. D'Lois Jones, CSR (512) 751-2618 16444 1 MR. ORSINGER: Well, yeah, to me personally 2 I would rather pattern my trial rule after my appellate 3 rule than after a new Federal trial rule, but that's just 4 personal. To me I would rather see a consistency between 5 our state and appellate rules rather than to see an 6 inconsistency that might give rise to all kinds of 7 arguments and committees and courts. 8 CHAIRMAN BABCOCK: Judge Yelenosky. 9 HONORABLE STEPHEN YELENOSKY: It may not 10 matter based on what you are proposing, Richard, I'm not 11 sure, but the rule as it exists now for appellate courts 12 says it must abate, but it doesn't say how long, and is 13 that an issue and why would it abate? 14 MR. ORSINGER: No, it doesn't abate. I'm 15 proposing that there be no subdivision (b) at the trial 16 level and that instead it say that the suit does not 17 abate. 18 HONORABLE STEPHEN YELENOSKY: Right. I'm 19 just curious at the appellate level. 20 MR. ORSINGER: The reason they want an 21 abatement at the appellate level is that trial judge No. 22 1, I should say the older one or the traditional trial 23 judge, is the one that makes the wrong ruling on the 24 discovery, and so the mandamus is against him or her. 25 HONORABLE STEPHEN YELENOSKY: Right. I D'Lois Jones, CSR (512) 751-2618 16445 1 mean, now they say "in re," right? 2 MR. ORSINGER: Now they do, but they're 3 still the respondent, aren't they? 4 HONORABLE STEPHEN YELENOSKY: Right. 5 MR. ORSINGER: Okay. So the lawsuit is 6 against them, and I know that a lot of district judges 7 don't like getting mandamused for a decision they never 8 had a chance to make. 9 HONORABLE STEPHEN YELENOSKY: We only get 10 conditionally mandamused. 11 MR. ORSINGER: Well, that's true. But 12 that's the purpose for the abatement, is just -- 13 HONORABLE STEPHEN YELENOSKY: But my point 14 is just it may be time sensitive, and if the new judge can 15 act quickly and change the decision perhaps it becomes 16 moot, but what's the direction to the appellate court? 17 And maybe it doesn't matter because this rule's been 18 around forever. 19 MR. ORSINGER: No, it's not an issue for us 20 because we're not changing the appellate rule, we're 21 changing the trial rule, and there's no reason to -- 22 HONORABLE STEPHEN YELENOSKY: I know. I 23 just want to bring up things today that we're not supposed 24 to work on. 25 MR. ORSINGER: Okay. Oh, you're saying D'Lois Jones, CSR (512) 751-2618 16446 1 maybe the appellate rule ought to be changed? 2 HONORABLE STEPHEN YELENOSKY: Yeah. 3 MR. ORSINGER: I'm sorry. I missed that. 4 CHAIRMAN BABCOCK: Richard Munzinger. 5 MR. ORSINGER: Not my department. 6 MR. MUNZINGER: Is there problem or a 7 potential problem if a public officer is a party in his 8 official capacity and in his individual capacity? 9 Suppose, for example, that a person who is in charge of 10 a -- of the prison or of the juvenile detention home is 11 alleged to have had carnal knowledge with one of the 12 inmates as well as permitting others to do so, and so 13 there are official issues, but now there are also personal 14 issues, and he dies or she dies. Should the rule somehow 15 recognize that possibility and account for it? 16 MR. ORSINGER: Well, does it, because it 17 starts out by saying, "When a public officer is a party in 18 an official capacity"? 19 MR. MUNZINGER: No, I understand, but then 20 that raises the question to the practitioner when you've 21 limited it to the official capacity, so I'm sitting here 22 and I'm saying what if I've sued somebody in his official 23 and individual, how does this affect it? We don't say in 24 his individual capacity Rules 151, et cetera. I'm not 25 saying you have to. I'm just wondering whether we need to D'Lois Jones, CSR (512) 751-2618 16447 1 at least think about it. 2 CHAIRMAN BABCOCK: Judge Christopher, and 3 then Gene Storie. 4 HONORABLE TRACY CHRISTOPHER: I think that's 5 a good point, too, and I was unclear on whether we were 6 going to make this 159 big A as in another rule or 159 7 little a. 8 MR. ORSINGER: No, it has to be a separate 9 rule, Judge, because -- 10 HONORABLE TRACY CHRISTOPHER: Because I 11 think we ought to rewrite 159 to make it parallel with the 12 TRAP rule. 13 CHAIRMAN BABCOCK: Gene. 14 MR. STORIE: You know, I think that may be 15 what the "if appropriate" language is for. You would 16 substitute the new official for the ex-per diem or 17 official liability claim, but the previous official would 18 stay in the suit, of course, for the individual claim. 19 CHAIRMAN BABCOCK: Anybody else? Yeah, 20 Judge Gray. 21 HONORABLE TOM GRAY: In both of the Federal 22 rules they contain a major provision that has always 23 seemed reasonable to me that -- this has always been 24 frustrating to me that it's not in the state rules and 25 that's you can sue them by their title only and not have D'Lois Jones, CSR (512) 751-2618 16448 1 to worry about their death or subsequent substitution, and 2 our rule does not provide for that, and it should. You 3 can sue the Governor of the State of Texas by that caption 4 and not have to put who the Governor is, and then if they 5 change offices or, you know, whatever, you don't have that 6 problem. 7 The words in the trial court are "by the 8 officer's official title rather than by name" and in the 9 appellate rule it says "may be described as a party by the 10 public officer's official title rather than by name," so 11 both of them have essentially the same concept in the 12 Federal rule that's completely absent in the state rule. 13 MR. ORSINGER: Good point. It's absent in 14 our TRAP rule as well as -- I mean, it's absent in our 15 TRAP rule. 16 MR. MUNZINGER: But isn't there case law 17 that suggests that you have to sue -- for example, the 18 chairman of the Department of Transportation, you have to 19 name that person as an individual as well as in their 20 official capacity to have jurisdiction over the agency. I 21 think there is some cases that cause some problems about 22 that. I'm not sure the committee should just immediately 23 adopt a rule that says sue by title and it's okay without 24 somebody doing some legal research to make certain that 25 that's correct. D'Lois Jones, CSR (512) 751-2618 16449 1 I once avoided a malpractice case by asking 2 someone to look that up, and they came back and said, "God 3 almighty, you have to sue the person individually," and I 4 was stunned by it, and I can't remember the agency at the 5 moment. It was some years ago, but there were cases that 6 address this, and we need to be careful. We need to think 7 about it. 8 MR. LOW: You know, I've never seen a suit 9 like that that didn't include in their official capacity 10 as individually as well. I've never seen one that didn't 11 do that. 12 MR. MUNZINGER: We need to be careful about 13 saying we can just wholesale rewrite the Texas rule 14 without looking at some of those older cases -- 15 MR. LOW: Right. 16 MR. MUNZINGER: -- in my opinion. 17 MR. BOYD: Are you talking about declaratory 18 judgment actions? 19 MR. MUNZINGER: No. 20 MR. BOYD: I know there is old cases that 21 say you have to name the agency. I mean, that you have to 22 name the individual agency head, but the more recent cases 23 have said that it's sufficient to name just the agency. 24 MR. MUNZINGER: I confess it was some years 25 ago, and I'm just concerned that we not believe that we D'Lois Jones, CSR (512) 751-2618 16450 1 can wholesale amend a rule that may cause some confusion 2 if some cases are read. 3 HONORABLE STEPHEN YELENOSKY: I guess you 4 could have a Federal claim that's not removed under 1983, 5 but you ought to know then that you have to name the 6 individual regardless of what the Texas rule says, but 7 that's an example. 8 HONORABLE JAN PATTERSON: Isn't it really 9 more endorsing a current practice? Isn't what we're 10 doing? 11 MR. ORSINGER: My proposal is to take what's 12 functioning at the TRAP level, except for the abatement to 13 allow a new ruling, which makes no sense at the trial 14 court level, just buy into it totally. I would do it just 15 take out "appeal on original proceeding" and replace it 16 with "suit" and then take out the subdivision (b) on 17 abatement to let the trial judge rule on the mandamus 18 matter again and put in "the suit does not abate" and then 19 the rules are identical except for those two areas. 20 MR. LOW: But, Richard, would that be 21 misleading to somebody that sued someone in their 22 individual capacity as well and you don't even mention 23 that? 24 MR. ORSINGER: Well, you know, nobody else 25 is mentioning it on the Federal side either. D'Lois Jones, CSR (512) 751-2618 16451 1 MR. LOW: No, just because somebody hadn't 2 done it before -- a lot of things I haven't done before, 3 but doesn't mean that, you know, we're right. 4 MR. GILSTRAP: Yeah, but the suit, I mean, 5 the suit -- if an officeholder leaves the office and you 6 sued him individually for some wrong, that suit continues 7 against him even though he's out of office. 8 MR. LOW: But like you'd sue a prison 9 warden, say, individually and in his official capacity 10 then to follow and so forth and then this comes up and you 11 say, "Well, it's abated, now we go to the new warden." 12 The new warden says, "Wait a minute. I'm not individually 13 liable." 14 MR. GILSTRAP: So you want to make sure that 15 this does not apply to an individual capacity? 16 MR. LOW: I don't want it confused like to 17 mean that, well, you can't sue somebody in the individual 18 capacity. 19 MR. ORSINGER: Well, this only applies to 20 them in their official capacity. It says so. 21 MR. LOW: I know it. I know it. I know it 22 says that, and maybe that is -- 23 MR. ORSINGER: You want to add another 24 sentence on there that says this doesn't apply to somebody 25 in their individual capacity? D'Lois Jones, CSR (512) 751-2618 16452 1 MR. LOW: I'm not answering the question. 2 I'm just raising it. I don't know. I'm asking you for an 3 answer. 4 CHAIRMAN BABCOCK: Gene, what do you think? 5 MR. STORIE: Well, I had the idea 6 originally, so everyone who is bored by it can blame me, 7 but honestly, I just saw it as a simple housekeeping sort 8 of matter because what we do in my practice at the 9 attorney general's office is we simply put in the 10 successor. So I get a suit that's filed against Carol 11 Strayhorn, she's not comptroller anymore, so when I file 12 pleadings or especially if I'm filing a judgment I'm just 13 going to say "Susan Combs, as successor to Carol 14 Strayhorn, Comptroller of Public Accounts," and what this 15 will do will do a couple of things potentially. It will 16 keep an appellate court from wondering if all the parties 17 have been disposed of if I forget to put that little bit 18 of language into my judgment, and I think it's just going 19 to make everyone's life easier to know who's really in 20 charge of the suit. I doubt there is any political 21 consequence to it, but it was really that simple of an 22 idea. 23 CHAIRMAN BABCOCK: Well, Buddy and Frank are 24 worried that if Carol Strayhorn in your example has been 25 sued individually and because of this rule some lawyer D'Lois Jones, CSR (512) 751-2618 16453 1 just substitutes Susan Combs and then drops Carol 2 Strayhorn out altogether, that they will lose a claim that 3 they intended to bring, and the answer to that seems to me 4 that if you're a lawyer that's smart enough to know that 5 you've got two claims against Strayhorn, one individually 6 and one in an official capacity, this rule change is not 7 going to cause you to all of the sudden get stupid and 8 drop her out of the lawsuit if you've got an individual 9 claim against her. 10 MR. LOW: Well, I just don't want somebody 11 to think that this -- that once that happened it merges 12 now into one official because I defended Bill Hobby and 13 Clarence Cain and all of them when Waggoner Carr sued when 14 they closed down Artesia Hall. Every one of them got sued 15 in their -- Hobby, everybody, in their official capacity 16 and individually. 17 CHAIRMAN BABCOCK: Right. 18 MR. LOW: And some of them changed and the 19 individual -- well, okay, maybe I'm not as smart as I 20 might be. 21 CHAIRMAN BABCOCK: Judge Patterson. 22 HONORABLE JAN PATTERSON: I'm not aware that 23 it's been a problem in the appellate courts. This seems 24 to have worked fine, so that leads me to believe that it 25 would work -- D'Lois Jones, CSR (512) 751-2618 16454 1 CHAIRMAN BABCOCK: In the state. 2 HONORABLE JAN PATTERSON: -- the same in the 3 trial courts. 4 CHAIRMAN BABCOCK: All right. It's a 5 legitimate question, though, so does everybody -- let's 6 vote on Richard's proposal, which would not contain this 7 language that Buddy and Frank are worried about. So 8 everybody in favor of Richard's proposal raise your 9 hand. 10 MR. LOW: I'll vote on it. There ought to 11 be a note anyway. 12 MR. ORSINGER: It's in the record, Buddy, 13 now. 14 MR. LOW: Huh? 15 MR. ORSINGER: It's in the record, and they 16 put this on the internet, so it will exist forever. 17 CHAIRMAN BABCOCK: Who is opposed? 18 Well, that's a good way to end the day, with 19 a 23 to nothing unanimous vote. Nicely done, Richard. So 20 we'll be back tomorrow at 9:00, and we'll go on from 21 there. 22 (Meeting was recessed at 5:02 p.m. and 23 continued the following day, as reflected in 24 the next volume.) 25 D'Lois Jones, CSR (512) 751-2618 16455 1 * * * * * * * * * * * * * * * * * * * * 2 REPORTER'S CERTIFICATION MEETING OF THE 3 SUPREME COURT ADVISORY COMMITTEE 4 5 * * * * * * * * * * * * * * * * * * * * 6 7 8 I, D'LOIS L. JONES, Certified Shorthand 9 Reporter, State of Texas, hereby certify that I reported 10 the above meeting of the Supreme Court Advisory Committee 11 on the 24th day of August, 2007, Friday Session, and the 12 same was thereafter reduced to computer transcription by 13 me. 14 I further certify that the costs for my 15 services in the matter are $______________. 16 Charged to: The Supreme Court of Texas. 17 Given under my hand and seal of office on 18 this the _________ day of _________________, 2007. 19 20 ________________________ D'LOIS L. JONES, CSR 21 Certification No. 4546 Certificate Expires 12/31/2008 22 3215 F.M. 1339 Kingsbury, Texas 78638 23 (512) 751-2618 24 25 #DJ-188 D'Lois Jones, CSR (512) 751-2618