The Texas Constitution mandates that “[a]ll courts shall be open, and every person for an injury done him, in his lands, goods, person or reputation, shall have remedy by due course of law.” (Tex. Const. art. 1, § 13). This constitutional guarantee requires that courts in this state “must actually be operating and available,” (Trinity River Authority v. URS Consultants, Inc.,—Tex., 889 S.W.2d 259, 261 (Tex. 1994)) even during times of emergency or martial law, since “[a]t no time and under no conditions” are the actions of anyone, including emergency officials or executive department leaders, “above court inquiry or court review[.]” (Constantin v. Smith, 57 F.2d 227, 237-39) (E.D. Tex. 1932).
Courts across this state are scrambling to update procedures and practices to ensure justice is done even in light of the novel coronavirus (COVID-19) pandemic and the concomitant social distancing and local public health orders that are increasingly restricting the movements of litigants, courthouse staff, and the judges themselves in an effort to “flatten the curve” and prevent the disease’s spread.
The 14 intermediate Texas Courts of Appeal are not exempt from this open courts mandate. Remaining “open” for the appellate courts, at its core, means being able to accept new filings and being able to assemble at least one three-justice panel to rule on dispositive motions and merits opinions. In the event that a court decides to exercise its discretion and hear oral argument, remaining “open” also means conducting hearings that are accessible to the public.
Fortunately for litigants, the Texas courts of appeal are well suited to continue their work remotely in the event temporary public health orders block or restrict access to the physical courthouses in which they are located. Electronic filing is already required of attorneys in all civil and criminal appeals, (Tex. R. App. P. 9.2(c)) justices may sign orders electronically, (Tex. Gov’t Code Ann. § 21.011) and the court is permitted to use videoconferencing technology if oral argument is necessary. (Tex. Gov’t Code Ann. § 22.302(a)). The appellate process also generally moves at a slower pace than the trial process, meaning that the effects of social distancing may not be immediately felt in the appellate courts.
That said, appellate emergencies do arise. The courts of appeals are required to resolve certain types of family law cases within certain rigid timeframes, and the courts have the power to issue temporary relief, stays, and extraordinary writs in emergency situations. If the path of this crisis continues, the courts of appeals may also be called on to review trial court orders that impose involuntary restrictions on persons with COVID-19; such appeals from involuntary commitment orders are accelerated and take precedence over all other matters on the docket. (Tex. Health & Safety Code Ann. §§ 81.191(a), (e)).
Disaster planning requires thinking about the unthinkable and finding workarounds for worst-case scenarios. Despite the best efforts of the courts of appeals, circumstances beyond anyone’s control may prevent the courts from meeting their constitutional duty to remain “open,” either on a short-term or a long-term basis.
Internet service disruptions or other technological glitches may prevent litigants from filing important documents. What happens then? Pro se litigants are not required to file documents electronically, and inmate pro se litigants have to file documents in paper form because they generally do not have access to the internet. What happens to mailed filings in the event mail service is disrupted, or in the event court personnel cannot physically obtain and process mail? In smaller courts with three or four justices, what happens if a justice falls ill, is unreachable, or is simply conflicted out of a decision, such that a panel cannot render an immediate decision when one is required? Are litigants in those vast appeals districts simply out of luck?
Fortunately, the Texas Rules of Appellate Procedure provide a framework that both courts of appeals and appellant litigants can reference in the event a service interruption or other disaster event either prevents litigants from filing necessary paperwork or prevents justices from being able to render timely decisions in emergency situations. And in the event that a situation is not explicitly covered by the Texas Rules of Appellate Procedure, Rule 2 of the Texas Rules of Appellate Procedure allows courts of appeal to suspend regular order based on good cause, and the joint First Emergency Order Regarding the COVID-19 State of Disaster (Supreme Court of Texas, First Emergency Order Regarding the COVID-19 State of Disaster, Misc. Docket 20-9042 (Joint Order, Texas Court of Criminal Appeals, Misc. Docket 20-007), available online at https://www.txcourts.gov/media/1446056/209042.pdf, gives courts the broad ability to fashion solutions to any administrative problem that may arise from now through at least May 8, 2020.
Here are some general guidelines attorneys can follow in the event that unforeseeable circumstances or disasters cause disruptions to the regular order of appellate proceedings.
Rules and Procedures You Need to Know About Filing Activity
A. Electronic Filing Required
Attorneys have a mandatory duty to electronically file documents with this court in both civil cases and criminal cases. (See Tex. R. App. P. 9.2(c)(1)). This means that so long as there is not a service disruption on the part of the courts and so long as internet access is available to litigants, filing activity may be handled remotely by the courts. If for some reason there is a service disruption and a document is filed untimely due to a technical failure or a system outage, the filing party may seek appropriate relief from the court. (Tex. R. App. P. 9.2(c)(5)).
Additionally, the joint First Emergency Order requires courts to “modify or suspend any and all deadlines or procedures . . . for a stated period ending no later than 30 days after the Governor’s state of disaster has been lifted” if doing so is required “to avoid risk to court staff, parties, attorneys, jurors, and the public.” (First Emergency Order § 2(a)). Check with your local court of appeals to see if it has implemented any COVID-related deadline suspensions or procedural changes.
B. Who May Accept Filings
In the event electronic filing becomes unusable, the rules provide the courts of appeals with some leeway with how they accept filings. Rule 9.2 identifies two methods of filing documents: 1) delivery to the clerk of the court or 2) delivery to a justice of the court who is willing to accept delivery. (Tex. R. App. P. 9.2(a)(1) & (2)). Filing by delivery to a justice is extremely unusual and highly discouraged, especially since electronic filing is mandatory and parties and counsel may communicate with the appellate court about a case only through the clerk. (Tex. R. App. P. 9.6). (You should not attempt service directly on a justice, especially if the clerk’s office is open or electronic filing procedures have not been disrupted.)
That said, in theory, in the event that both the clerk and any deputies become unavailable and there is a service interruption to electronic filing, a justice who is so willing may accept hand-delivery of documents in an absolute emergency. However, as the rule makes clear, acceptance by the justice is entirely discretionary. Justices do not have to accept delivery and are free to reject such delivery. Each court and each appellate justice will have to weigh the pros and cons of this approach in the event electronic service is impossible and make a decision as to whether method of filing will be accepted or not. A justice who does opt to accept delivery must note on the document the date and time of delivery, which will be considered the time of filing, and must promptly send it to the clerk. (Tex. R. App. P. 9.2(a)(2)).
C. Paper Filings by Pro Se Litigants
Pro se litigants may file documents electronically, but they are not required to do so, and they usually do not do so. For many courts of appeals, pro se litigants are the only remaining source of paper filings. For pro se litigants who do not have access to electronic filing through eFile and who choose to send materials by mail, the ordinary filing by mail rules contained in Rule 9.1(b) of the Texas Rules of Appellate Procedure will apply:
- A document received within 10 days after the filing deadline is considered timely filed if it was deposited in the mail on or before the last day of filing. (Tex. R. App. P. 9.1(b)(1)(C)).
- Deadlines will be tolled by the Texas Rules of Appellate Procedure in the event the Clerk’s Office is closed and the mailed document cannot be physically filed by a deputy clerk. Specifically, Rule 4.1(b) states that if the clerk’s office where a document is to be filed is closed or inaccessible during regular hours on the last day for filing the document, the period for filing the document extends to the end of the next day when the clerk’s office is open and accessible. (Tex. R. App. P. 4.1(b)).
In sum, so long as the envelope has a postmark showing that the document was timely filed, a court of appeals can treat the document as being timely filed, even if the clerk’s office is unable to process it until after a crisis situation passes. (Tex. R. App. P. 9.1(b)(2)(A)).
In the event that a pro se litigant without access to eFile needs to file an emergency motion, a court of appeals may suspend regular order under Rule 2 and accept filings through email. (See Tex. R. App. 2).
Even with these time-tolling and electronic workarounds, procedural due process may likely require courts to at least periodically review paper mail to ensure that litigants who do not have internet access are not denied their “day in court.” How courts handle that situation is a matter of internal court policy.
Interaction With the Public
A. Communicating with the court
Parties and counsel may communicate with the appellate court about a case only through the clerk. (Tex. R. App. P. 9.6). To facilitate communication during an emergency in which the courthouse phones are unavailable for use, individual courts of appeals may issue orders requiring communication with the court to take place through email, or contact phone numbers may change. Again, check with your local court of appeals to see if its regular routine for answering questions has changed in response to COVID-19, and know whom to contact in the case of an emergency.
B. Oral Argument Situs and Teleconferencing
An appellate court’s internal decision whether to grant, deny, or require oral argument is “absolutely discretionary and unreviewable.” (Polasek v. State, 16 S.W.3d 82, 94 (Tex.App.—Houston [1st . Dist] 2000, pet. denied). For now, most if not all courts of appeals have canceled upcoming oral arguments in response to the COVID-19 outbreak and have either announced an intention to reset them at a later date or else submitted cases as waivers. In the event of prolonged social distancing, courts of appeals are exploring ways to hold oral argument via videoconference if necessary.
Even before the outbreak, each court of appeals’ chief justice had the statutory discretion to order that oral argument be presented through the use of teleconferencing technology. When so ordered, the court and the parties or their attorneys may participate in oral argument from any location through the use of teleconferencing technology. (Tex. Gov’t Code Ann. § 22.302(a)). In the event that oral argument is granted, the joint First Emergency Order requires that for the duration of the governor’s emergency declaration the courts must “[a]llow or require anyone involved in any hearing . . . to participate remotely, such as by teleconferencing, videoconferencing, or other means” if doing so is necessary to avoid risk to court staff, parties, attorneys, jurors, and the public. (First Emergency Order § 2(b)).
The joint First Emergency Order also allows courts of appeals to conduct oral arguments “away from the court’s usual location, but in the county of venue, and only with reasonable notice and access to the participants and the public.” (First Emergency Order § 2(d)). In the joint Third Emergency Order issued on March 19, 2020, the two high courts removed the “county of venue” requirement and now allow judges to hold court proceedings away from the court’s usual location, even outside the county of venue. (https://www.txcourts.gov/media/1446178/209044.pdf). In a press release, the Texas Supreme Court explained that the “change omits reference to the county-venue limitation in the original order so, for example, a judge assigned to an involuntary-quarantine challenge may preside from a location across the state.” (https://www.txcourts.gov/supreme/news/texas-supreme-court-coronavirus-update/).
In the Event of Total Shutdown
In the event that an event renders a court of appeals completely unable to take immediate action when immediate panel action is required, Rule 17 of the Texas Rules of Appellate Procedure governs. Rule 17 states that when a court cannot assemble a panel because members of the court are ill, absent, or unavailable, the court’s inability to act immediately may by established by certificate of the clerk, a member of the court, or a party’s counsel, or by affidavit of a party. (Tex. R. App. P. 17.1).
If a court of appeals is unable to take immediate action, the nearest court of appeals that is able to take immediate action may do so with the same effect as this court. (Tex. R. App. P. 17.2). The “nearest court of appeals” is the one whose courthouse is nearest—measured by a straight line—the courthouse of the trial court. (Id.).
A map of the Texas Courts of Appeals district is available online at txcourts.gov/media/10872/COA05_map2012.pdf. It may not always be clear which is the nearest court of appeals to a particular trial court. If there is confusion as to which alternate court of appeals will act in place of the ordinary court of appeals, a linear distance comparison may be required. An easy way to calculate the linear distance between a trial court’s courthouse and the courthouse of the next nearest court of appeals is to open Google Maps, right click on the location of the trial court courthouse, select “Measure Distance” to set the first point of measurement, and the click on the location of the appellate court’s courthouse to get an exact linear distance.
Texas has a very robust judicial system filled with dedicated people who are committed to keeping the doors of appellate justice open. However, in times like these, an ounce of prevention may (literally) be worth a pound of cure. For appellate practitioners and courts alike navigating the choppy waters of COVID-19, it is better to know these rules and not need them than it is to need them and not know them.
Kirk Cooper is the chief staff attorney for the 8th Court of Appeals in El Paso. He is board certified in civil appellate law by the Texas Board of Legal Specialization. He is a member of the Texas Bar Journal’s Board of Editors, is the District 14 director for the Texas Young Lawyers Association, and is a past president of the El Paso Young Lawyers Association.