By Katie Buehler

Law360 (April 15, 2021, 7:04 PM EDT) -- Texas lawmakers are workshopping changes to state law that would allow courts to continue holding remote proceedings once the coronavirus pandemic is over, a change many lawyers and judges support with certain exceptions. 

Two identical bills currently in committee in the Texas Legislature — S.B. 690 and H.B. 3611 — would change Section 21.009 of the state Government Code to allow a state court, either on its own motion or a party's motion, to conduct a hearing or other proceeding remotely without the parties' consent, unless consent is required by the U.S. and Texas Constitutions.

After hearing from more than a dozen witnesses during a public hearing on H.B. 3611 late Wednesday night, state Rep. Jeff Leach, R-Allen, the bill's author and chair of the House's Judiciary & Civil Jurisprudence Committee, said he plans to make changes to the legislation and propose a committee substitute to the bill to be voted on sometime next week.

S.B. 690 has not yet been set for a public hearing.

Leach, who is a counsel at Gray Reed & McGraw LLP, said that allowing remote proceedings in a post-pandemic world will play a "vital role" in addressing the backlog of cases in Texas courts.

"Remote proceedings have been shown to save time and money," he said. "There's been a lot of benefits, but going forward there's a lot of questions."

Texas state courts have held more than 1 million remote hearings since the Texas Supreme Court first allowed them in an emergency order issued March 13, 2020. But state Supreme Court Chief Justice Nathan L. Hecht has said statutes and rules need to be changed in order to allow virtual proceedings to continue once Gov. Greg Abbott repeals the pandemic disaster declaration.

State statutes currently allow parties and lawyers to appear telephonically in court if approved by a judge, but the laws say nothing about conducting remote hearings. Chief Justice Hecht said at an April 9 meeting of the Texas Judicial Council that while he doesn't expect the disaster declaration to be lifted anytime soon, the judiciary needs to "map out a new normal." 

"We really are determined to take what we learned in the pandemic and build on it," he said.

Results of anonymous surveys conducted by local Bar associations and judges show that attorneys who responded want to continue remote proceedings once the pandemic is over.

A San Antonio Bar Association survey showed that respondents would rather conduct most court proceedings remotely, with the exception of voir dire, jury trials and some evidentiary hearings, Bexar County District Court Judge Antonia Arteaga told the Texas Judicial Council at its April 9 meeting.

Another anonymous survey, conducted by Judge Roy Ferguson, who presides over the 394th District Court on the state's southwestern border with Mexico, showed that more than 98% of responding attorneys want to have remote proceedings in a post-pandemic world.

Judge Ferguson, a member of the 19-person Remote Proceedings Task Force created by the state Supreme Court in December, told the Texas Judicial Council on April 9 that most of the generalized pushback against continuing remote proceedings is unfounded rumors.

He said he often hears plaintiffs' lawyers state that they want to continue remote proceedings after courts reopen, but defendants' lawyers don't, and vice versa.

"There's a lot of finger-pointing, but when you ask them one-on-one they say they want it remote," Judge Ferguson said. "A lot of the pushback we're getting is rumored pushback, it's not real pushback."

He echoed those thoughts when he testified during Wednesday's public hearing, adding that the Texas Legislature should help determine who has the decision-making power to determine whether a court proceeding will be held remotely.

"The issue is not whether we should have remote proceedings in the future — of course we should. The questions are who should decide," he said.

Other witnesses at Wednesday's public hearing generally approved of the proposed bills, but voiced concern about whether it would cause Texas courts to default to conducting all proceedings remotely, as well as concerns about who would have the power to decide whether to hold in-person or remote proceedings.

Judge Ferguson was joined by Collin County District Court Judge Emily Miskell and Travis County Justice of the Peace Nicholas Chu — who are also members of the Remote Proceedings Task Force — in saying that attorneys should have the option to object to remote proceedings, but that judges should be the final decision-makers.

Judge Chu urged lawmakers to simply expand the rules and statutes that allow for telephonic court appearances to also include Zoom court appearances.

Judge Miskell suggested changing the proposed legislation to not require consent, while allowing parties to object to holding proceedings remotely. She said some of the most vulnerable parties, who often are self-represented in her court, wouldn't have the resources to consent to holding proceedings one way or the other because they don't often come in contact with the court until the day of their proceeding.

"I would ask the committee to allow courts to choose which cases are appropriate for remote and in-person," she said. "A consent requirement would chill the benefit for the vulnerable litigants."

Family law attorneys implored the committee to also consider divorce and parental rights proceedings when amending the proposed legislation.

Galveston attorney Julie Hatcher, president of the Texas Association of Family Defense Attorneys, said termination of parental rights proceedings shouldn't be held remotely because personnel present at the in-person court settings provide valuable support to the parties.

San Antonio divorce attorney Kristal Thompson, who is the chair of the State Bar of Texas' Family Law Section, also encouraged lawmakers to consider the use of YouTube in virtual proceedings. Many Texas courts have turned to YouTube during the pandemic to maintain open access to their proceedings, but Thompson said that open access can be harmful to parties.

"Although I agree we need to have open courts, I don't think open courts were ever meant to bring [proceedings] to people watching it on their couch for the fun of it," she said.

In order to become law, H.B. 3611 will have to be voted out of committee, approved by the full House, and then voted out of a Senate committee and approved by the full Senate before heading to Abbott's desk.

--Editing by Regan Estes.

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