CourTex - November 2012

OCA recently signed an agreement with Tyler Technologies to use its Odyssey File & Serve product to provide statewide eFiling and eService starting in the summer of 2013. Once implemented, filers can expect to see a reduction of up to 48% in the fee charged by the vendor to provide those services. The new system also provides an ECF 4.0 interface that allows for easier integration into any case management system. Clerks not currently eFiling can start with the new system next summer, while those using the Texas.gov eFiling services will begin switching in September 2013. Expect more information as we progress towards implementing the new system.

Supreme Court Approves Forms in Uncontested Divorces without Children or Real Property

The Texas Supreme Court this week approved self-directed forms intended for uncontested divorces for couples without children or real property. The is accepting public comment on the forms through February 1.

In a per curiam statement explaining the divorce forms, the Court reiterated its intent to assist indigent parties. "While it is clear that forms will not work in every circumstance," the statement said, "the Court firmly believes that forms are an integral part of any effort to aid indigent litigants."

The Court noted that 48 states have implemented standardized family-law forms and that the Texas forms should help alleviate problems posed by nearly 58,000 family-law cases filed without an attorney's assistance in the state in the 2011 fiscal year. "While the Court recognizes that obtaining legal representation, pro bono or otherwise, for every pro se litigant would be ideal, the resources needed to meet the demand are simply not available."

Justice Johnson, joined by Justice Willett, dissented in part from the Court's per curiam statement. Justice Lehrmann, joined in part by Justice Johnson, also dissented.

Supreme Court Rules on Expedited Actions Provide for Modified Caseflow Management

During the last legislative session, the Legislature directed the Supreme Court to adopt rules to "promote the prompt, efficient, and cost-effective resolution of civil actions" in district courts, county courts at law, and statutory probate courts in which the amount in controversy does not exceed $100,000 (including all claims for damages of any kind, whether actual or exemplary, a penalty, attorney's fees, expenses, costs, interest, or any other type of damage of any kind). The rules are meant to lower discovery costs in these actions and expedite the cases in the civil justice system. The rules do not apply to claims governed by the Family Code, the Property Code, the Tax Code or Chapter 74 of the Civil Practice and Remedies Code (Medical Liability Torts).

Highlights of the Rules for Dismissals and Expedited Actions are:

Original pleadings must contain a statement regarding the monetary relief sought so that the Court can determine whether the case will proceed under the expedited actions rules;
A party who does not provide the statement of monetary relief sought may not conduct discovery until the pleading is amended to comply;
If the monetary relief sought is $100,000 or less (including damages of any kind, penalties, costs, expenses, pre-judgment interest, and attorney's fees), the case must proceed under the expedited actions rules unless the Court removes the suit from the expedited actions process;
Discovery must be completed within 180 days after the first request for discovery of any kind is served on a party;
On any party's request, the Court must set the case for a trial date within 90 days after the discovery period ends;
Each side is allowed five hours to complete jury selection, opening statements, presentation of evidence, examination and cross-examination of witnesses, and closing arguments (excluding objections, bench conferences, and challenges for cause to a juror); and
Unless the parties have agreed to engage in alternative dispute resolution or are required to do so by contract, the Court must not - by order or local rule - require the parties to engage in alternative dispute resolution.

Final approval of the dismissal rules are subject to public comment through February 1.

Courts, court personnel and clerks should consider how these new rules will affect the current caseflow management process and prepare for alternative procedures for expedited cases should the rules be finally adopted in March 2013.

Supreme Court Approves Rules on Dismissal of Baseless Causes of Action

On Tuesday, the Texas Supreme Court approved rules to provide dismissal of suits that have no basis in fact or law.

Highlights of the Rules for Dismissals and Expedited Actions are:

The motion to dismiss must be filed within 60 days after the first pleading containing the challenged cause of action is served on the movant;
The hearing on the motion must be set at least 21 days after the motion is filed (oral hearing not required);
Each party is entitled to 14 days notice of the hearing;
Any response to the motion must be filed at least 7 days before the date of the hearing;
The Court may not consider evidence in ruling on the motion and must decide the motion based solely on the pleading of the cause of action, together with any pleading exhibits; and
The motion must be granted or denied within 45 days after the motion is filed.

Final approval of the dismissal rules are subject to public comment through February 1.

In a Sign of the Digital Briefs Age, Supreme Court Adopts Rules Switching from Page Limits to Word Limits

As the Texas courts continue to move toward reviewing briefs in an electronic form (e.g., on iPads and laptops), it is more important that font size be appropriate rather than total length in pages. The newly adopted rule that goes into effect on December 1 makes this shift and sets out word limits and mandates that the font must be at least 14-point, except for footnotes, which must be at least 12-point. Counsel or a self-represented litigant must now include a certificate of compliance stating the number of words in the document. These changes apply in the Supreme Court, Court of Criminal Appeals and all Courts of Appeals.

Judicial Compensation Commission Recommends Increase in Compensation for Texas Judges

At its meeting on October 25, the Judicial Compensation Commission unanimously adopted a recommendation that the Texas Legislature increase the compensation of the justices and district judges by approximately 21.5%. This increase would return judicial compensation to its 1991 levels (when factoring in consumer price index increases) plus raise the compensation 12.5% over the 1991 level. The Commission found that the increase was merited because:

Judges in Texas have not received a raise since 2005;
Inflation has risen by 17.4% since 2005;
Current judicial salaries have not kept up with the rate of inflation and will continue to be eroded by inflation; and
Salaries are now lower than salaries paid to judges in 1990 when factoring in inflation.

If the recommendation of the Commission is enacted by the Legislature, the state portion of compensation of the justices and district judges will be:

District Judges - $151,909
Court of Appeals Justices - $167,100
Supreme Court/Court of Criminal Appeals Justices - $182,291

The Commission is expected to approve its Final Report tomorrow. The Final Report will be transmitted to the Governor and Legislature by the Commission prior to its December 1 deadline for transmission.

Texas Judicial Council Adopts Resolutions for Legislative Action

On November 9, the Texas Judicial Council, the statutorily-created policy-making body of the state judiciary, adopted eleven resolutions for potential legislative action. Each of those resolutions is briefly described below.

Ensuring Adequate Court Funding - This resolution recognizes the dependence of the Judiciary upon the Executive and Legislative Branches for funding to allow it to fulfill its Constitutional and statutorily-mandated responsibilities. It urges the Legislature and Commissioners Courts to provide adequate funding to courts to carry out those purposes.
Adequate Funding for the Court eFiling System - While the court eFiling system has been in existence since 2003, adoption remains very low. One of the most common complaints with the current system is the cost structure - a "toll road model" where each filed document is charged a fee. This resolution recommends that the Legislature shift the payment of eFiling fees from a per document fee to a per case fee, which would result in a tremendous decrease in the cost of eFiling in Texas.
Additional State Funding for Indigent Defense - Since the passage of the Fair Defense Act of 2001, the overall cost of providing criminal indigent defense has increased by 120 percent. Most of the increased cost has been shouldered by counties. This resolution recommends that the Legislature provide sufficient funding to the Indigent Defense Commission so that the "unfunded" gap being borne by counties is closed.
Collection of Fines and Court Costs after End of Community Supervision Period - Attorney General Opinion GA-0413 (2006) opined that defendants are no longer responsible for paying fines and court costs once their community supervision period ends. This resolution recommends that the Legislature amend the Code of Criminal Procedure to recognize that the obligation of defendants to pay fines and court costs extends beyond their period of community supervision.
Assessment of Criminal Court Costs in Effect on Date of Conviction - Texas' criminal court cost structure is extremely complicated and difficult to administer. One of the factors contributing to the complexity is the assessment of court costs based upon date of offense, rather than date of conviction. This resolution recommends that the Legislature enact Legislation that would provide for the assessment of criminal court costs based upon those that are in effect on the date of conviction.
Single Effective Date for New Criminal Court Costs and Civil Filing Fees - Also contributing to Texas' complex criminal court cost and civil filing fee structure is the impact of effective dates on newly created or amended costs and fees. The Legislature is able to set the effective dates of the costs and fees at different times through the summer and fall after the session if a specific provision of statute is utilized. This resolution recommends that the Legislature repeal that provision in statute, Government Code Section 51.607(d), so that all fees become effective on January 1, regardless of the effective date of the bill.
Consistent Fee Amounts in Compliance Dismissals - Oftentimes, persons charged with certain traffic-related offenses such as driving with an expired driver's license obtain a dismissal of the offense by remedying the defect (e.g. renewing one's driver's license) within a certain time and paying an administrative fee called a compliance dismissal fee. However, the compliance dismissal fees range from discretionary to mandatory and are set at differing amounts. This resolution recommends that the Legislature set a uniform mandatory fee of not less than $20 for all compliance dismissals.
Interim Study on Criminal Court Cost Consolidation - Despite valiant efforts by the various stakeholders affected by the complex criminal court cost system, and despite widespread agreement among the stakeholders that a less complicated structure is desirable, the stakeholders were unable to determine an appropriate method of simplification. This resolution recommends that the Legislature create a legislative interim study committee to examine this issue and make recommendations to the next Legislature.
Judicial Compensation Commission Recommendations - As described in another article in this edition of CourTex, the Judicial Compensation Commission recently recommended an increase in compensation for Texas' justices and district judges. This resolution urges the Legislature to provide funding to increase state judicial compensation to the levels recommended by the Compensation Commission.
Juvenile Justice Committee Recommendations - After having studied the issue of school ticketing and other related juvenile justice problems for months, the Judicial Council adopted several specific recommendations to address these issues. This resolution recommends that the Legislature enact the statutory recommendations of the Juvenile Justice Committee.
Informing the Attorney General of Constitutional Challenges to Texas Statutes - During the last legislative session, a bill was passed requiring courts and clerks to notify the attorney general of constitutional challenges to Texas statutes filed by parties in their court. Despite their best efforts, most clerks find it difficult to comply with the directive due to resource limitations. This resolution recommends that the Legislature remove the obligation from the clerks and place the obligation on the party raising the constitutional question.

Juvenile Justice Recommendations Receive Good Review in Legislative Hearing

The Texas Judicial Council Juvenile Justice Recommendations were highlighted at a recent joint hearing of the Senate Criminal Justice and Education Committees. The committees held a hearing on October 30 on their Interim Charge No. 7 ("Conduct a comprehensive review of school discipline practices"). Judicial Council Executive Director David Slayton, joined by Judicial Council Juvenile Justice Committee Chair Orlinda Naranjo, provided the testimony to the senators. (See testimony at 1:42 in the recording). Testimony by other advocates provided additional support for the Council's recommendations.

Addressing Human Trafficking in the Texas Courts Initiative Kicks Off
Through an initiative sponsored by the State Justice Institute, OCA kicked off its effort this week to provide information and resources to judges, clerks and court personnel regarding human trafficking. The initiative is being conducted in partnership with the Center for Public Policy Studies and is expected to be completed in Summer 2013.

Texas National Instant Criminal Background Check System (NICS) Mental Health Record Improvement Plan

The Texas NICS Mental Health Record Improvement Plan is a strategic plan for the improvement of the quality and availability of prohibiting mental health adjudication and commitment records in Texas used by NICS. The plan, created by the Texas NICS Record Improvement Task Force, is now available online.

The Texas NICS Mental Health Record Improvement Plan provides a review of the progress Texas has made on improving the reporting of prohibiting mental health adjudication and commitment records, the challenges encountered, and the recommendations identified to continue the improvement of mental health records reporting. The establishment of the Task Force and the creation of the Plan are requirements of the $545,414 grant that OCA received in FY 2012 from the Bureau of Justice Statistics, U.S. Department of Justice to provide direct assistance to the district and county clerks with the implementation of H.B. 3352.

H.B. 3352, which was passed by the Texas Legislature in 2009 to comply with and implement the requirements of the federal NICS Improvement Amendments Act of 2007, requires clerks to report information on mental health, guardianship, and other prohibiting cases (including historical cases for the period September 1, 1989 through August 31, 2009) to the Criminal Justice Information System maintained by the Texas Department of Public Safety. This information is used in background checks performed by the Federal Bureau of Investigation to determine whether a person is disqualified from possessing or receiving a firearm.

Court Teams Work to Get Foster Children into Permanent Homes Faster

Some 20 teams of Texas judges, attorneys and caseworkers from all over the state met this October to work on a pressing issue concerning thousands of Texas children who are stuck in foster care and to determine what they can do to get the children into permanent homes.

Almost half of the 28,000 abused and neglected children in Texas whose legal parent is the Department of Family and Protective Services have been in state custody at least a year. Those who are still in foster care after another six months stand a good chance of lingering a year or two more because often the urgency of finding them permanent homes all but vanishes once their legal case ends at the 18-month deadline. Texas Appleseed's findings in its two-year study released in November 2010 confirm that children languish in foster care because court oversight diminishes, advocates and attorneys are routinely dismissed, and the roles of those who remain legally involved become unclear.

Judges from a cross-section of Texas courts each brought a multi-disciplinary team from their local jurisdiction to the Permanency Summit this October sponsored by the Supreme Court of Texas Children's Commission and presented by the Texas Center for the Judiciary. Texas Judges are responding to the call to lead efforts to get children into a permanent home before they transition to the state's Permanent Managing Conservatorship (PMC).

In her comments welcoming judges and their court teams, Children's Commission Chair and Texas Supreme Court Justice Eva Guzman told participants she admired their courage in handling such difficult cases. "I'm sure you look at these children and youth in your courts and know they desperately need and want a family - someone who will be there for them as they face the prospect of years in foster care and a journey toward uncertainty that may include homelessness, drug addiction or mental illness," Justice Guzman said.

"You know that without a permanent connection to someone, it is unlikely they will reach their potential or experience a bright future," she added. "You know this because you've seen it time and time again in your courts."

Court team members learned from the Appleseed study and from one another that the Texas law mandating children in foster care attend their review hearings is sometimes ignored, and that notice of the hearings is inconsistently given, meaning the people closest to the children often have no opportunity to attend the hearings. Conference speakers urged judges to bring children to court for their hearings to have their voices heard and participate in plans for their lives. "Once I started insisting children attend court, I was amazed at the difference in the quality of hearings and the progress we could make," said Harris County Associate Judge Angela Ellis, who told participants that like many judges, she thought bringing children to court was unnecessary and didn't even consider doing it for years. Now, she credits it for children having better outcomes in her court.

"There's just something about a child being able to talk to a judge," Judge Ellis said. "They'll tell you things they won't tell anyone else." A Houston Chronicle column this October quoted Judge Ellis as saying her black robe to children in foster care is "the great uncorker."

Beaumont District Judge Larry Thorne said he intends to start consistently ordering children to attend their hearings in his court. "Not only because doing so can help us reach permanency faster," Judge Thorne said. "But because it's just the right thing to do."

TAMES Continues through the Appellate Courts

OCA is continuing to deploy a new appellate case management system to the appellate courts. This month, OCA deployed the system to the 4th Court of Appeals (San Antonio) and the 12th Court of Appeals (Tyler). OCA expects to have all appellate courts implemented by next summer. TAMES provides a path for a case to be initiated, processed, and disposed of in a completely electronic medium.

As OCA implements TAMES, clerks and court reporters also get to take advantage of a more robust report submission portal. This portal allows clerks and court reporters to submit their records electronically to the appellate court.

Two Reports Highlight Efficacy of Public Defender Offices

Two recently released reports considered the efficacy of public defender offices in Texas. The Public Policy Research Institute at Texas A&M University led a study of the Wichita County Public Defender that found evidence that the county's public defender can provide high-quality indigent defense counsel while also containing cost. A study of the Harris County Public Defender by the Council of State Governments Justice Center found that "establishing a public defender office was an appropriate decision for Harris County and the Texas Indigent Defense Commission." Both studies were conducted with the participation of the Indigent Defense Commission.

Bill of Costs - Direction and Advice to Clerks
The Office of Court Administration has published an article advising clerks on the bill of costs in criminal cases. It will remain accessible on the Publications, Forms and Online Information page of the OCA website under the section on "Clerk Manuals and Handbooks".

FY 2012 Statistical Reports for Appellate Courts Posted

Appellate court statistics for FY 2012, as well as judge profile, compensation, and other information have been posted for the 2012 Annual Statistical Report for the Texas Judiciary. Staff are currently working on compiling the information for county and district courts, which should be available in the next couple of weeks.

In addition, the Summary of Security Incidents reported by courts during FY 2012 has been posted.

Resources

Report Questions Services to Victims
The Texas Criminal Justice Coalition recently released a new report that reveals insufficient support for victims of domestic violence and other trauma.

New Executive Session Article Focuses on Increased Social Media Engagement by Court Leaders

A new article written by social media expert Garret Graff and published by the Harvard Executive Session for State Court Leaders in the 21st Century encourages state court leaders that they "must not only learn how to communicate with new tools; they must also envision new means of judicial engagement with the public through the new social media that can further advance the legitimacy of courts in a democratic society." Five other articles from the Executive Session have currently been published as follows:

Eight additional articles are expected over the next few months.

About the OCA

OCA is a state agency in the judicial branch that operates under the direction and supervision of the Supreme Court of Texas and the chief justice and is governed primarily byChapter 72 of the Texas Government Code. www.txcourts.gov

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