Texas Rules of Civil Procedure 21 and 21(d) (2023)

February 08 2023| News| | By Samantha Torres

In response to the more common use of remote proceedings and concerns that followed, the Texas Supreme Court approved an amended Texas Rule of Civil Procedure 21 and new Rule 21(d) regarding notices and appearances for court proceedings; both effective on February 1, 2023.

Rule 21(b) was amended to clarify notice requirements for court proceedings (e.g., hearing or trial). Other than an application presented during a court proceeding, an application to a court for an order and notice of the proceeding must be served on all parties not less than three days before the date of the proceeding, unless otherwise provided by the Texas Rules of Civil Procedure or the court’s local rules. The notice must state information needed for participants, including any party, attorney, witness, court reporter, or juror, to participate. The required information, to be published by the court, includes the location or instructions to electronically join, the court’s designated contact information, and instructions for submitting evidence.

The new Rule 21(d) clarifies procedures for appearing by physical or electronic means and an objection to a method of appearance. Unless the notice states otherwise or if a governing statute prohibits electronic appearances, Rule 21(d) allows the court to permit or require participants to appear electronically after appropriate notice. Otherwise, participants must physically appear in the courtroom. However, a court cannot require electronic appearance by a party or lawyer when oral testimony is heard, absent good cause or party agreement, or by a lawyer, party, or juror in a jury trial, absent party agreement.

After receiving notice, a party may, within a reasonable time, object to a method of appearance by stating good cause. Good cause may include the case or court proceeding type, number of parties and witnesses, complexity of the case, technological or travel restrictions (e.g., lack of access to or proficiency of technology), whether a method of appearance is best suited to provide necessary language services to accommodate those with limited English proficiency or a disability, and any previous abuse of a method of appearance. While the court is not required to conduct a hearing, it must rule on the objection before proceeding and timely communicate the ruling to the parties by written order or on the record.

If all participants appear electronically, the court must provide the public with the opportunity to observe a proceeding and reasonable notice on how to do so unless it closes proceedings to protect an overriding interest, considered less-restrictive alternatives, and made findings on the record to support closure. A court should rarely close a proceeding, and in such an exceptional case, it must use the least restrictive means to protect the overriding interest.

Rule 21(d) also addresses a judge’s appearance, permitting a judge to appear electronically from a location required by law. Relevant law requires court proceedings to be held from the county seat in which the case is pending.