John Stride
We are rapidly becoming a paperless age—especially in the world of banking—and the legal system is adapting too, albeit in a dysfunctional sort of way. Courts across the nation are transitioning from paper documents and paper filings to electronic transmissions and electronic filing of documents. The size and diversity of Texas’ complicated court system—very likely, as the Office of Court Administration’s materials demonstrate, the most complicated in the world—is leading to the adoption of these new practices in a piecemeal, even haphazard, fashion. Possibly, though, the most unified approach in the state is occurring at the appellate level. This article will examine the appellate courts’ adoption of procedures for the electronic transfer and electronic filing of documents as they affect practitioners of Texas criminal law.
Distinguish electronic transfers from electronic filings
In starting out, it is important to distinguish between an appellate court’s requirements that copies of documents be transferred electronically and its requirements that documents be filed electronically. While a document may be transmitted electronically—for example, by e-mail or CD-Rom—only in rare cases will an electronic transfer constitute a filing of the document. Usually, paper documents must still be physically tendered, in person or by regular mail, to the court to satisfy the requirement of filing them. Some courts, however, do permit filing documents by fax, but this method, of course, is not submitting a document to the court in electronic format—the document arrives on paper. To date, no Texas appellate court accepts an e-mail attachment or submission of a CD-Rom alone as a substitute for paper filings. Any e-mail and CD-Rom submissions are in addition to the required paper filings. (See the chart on the opposite page for a quick reference.)
Electronic transfers
Electronic transfers of documents can be optional, in the courts’ terms recognized as a “courtesy,” or mandatory. Most courts have adopted a progressive approach, allowing parties to familiarize themselves with electronic transfers on a voluntary basis as they continue to tender paper documents. After a period to acclimatize everyone, the courts then require electronic copies of documents in addition to paper copies. Electronic copies may be required in the form of an e-mail attachment or in the form of CD-Rom. So far, no court officially recognizes flash drives or other vehicles as a legitimate means to transmit documents. Also, no court has adopted fax as a mandatory method of electronic communication and, with the advances in e-mail, it seems unlikely that any would do so. For purposes of convenience, expense, and precaution, I would suggest using the e-mail method of transfer—unless that method is not accepted. It is very easy to attach a document to an e-mail, no CD-Roms need be purchased, and the document is sent to the court by an alternative means than the copies transmitted by the regular mail or by hand. No court has taken the giant leap of relying on electronic copies alone.
Electronic filing
Electronic filing can also be optional or mandatory. At the time of writing this, the only court requiring electronic filing is the Fifth Circuit. As with electronic transfers, the court began by offering parties electronic filing as a choice. Starting March of this year, however, electronic filing is mandatory. Like electronic transfers, no court has transitioned to accepting electronic filing, other than faxes, in lieu of filing paper copies. But surely that is the way things are going.
Rules for electronic transfers and filings
The Texas Rules of Appellate Procedure are currently devoid of provisions governing electronic transfers or electronic filing—although they do address electronic records.# So long as the rules do not address these matters, the individual courts are left to establish their own procedures under their local rules and guidelines. The Fifth Circuit and the Texas Supreme Court are the only courts with extensive procedures for electronic transfers and filings. The remaining courts are still in the evolutionary phase of determining how best to implement their needs into requirements, but some courts have gone into greater detail than others. To the extent the courts have rules or guidelines, they are posted in their local rules and/or on their official websites. Readers should always check the current requirements and, if in doubt about them, call the clerk of the pertinent court.
Some courts have limited the size of e-mail attachments for security reasons to 5MB. According to the Texas Supreme Court website, this is 60–70 pages of a PDF file. If using a scanner, the court recommends setting it at 200 dpi or the next lowest resolution to prevent oversized files. Using PDF files is the better practice because the documents cannot be altered, unlike Word Perfect and Word files.
The most common requirement is inevitable given all the malicious interference on the internet—files in electronic format should be free of viruses and other files that could be disruptive to the courts’ networks. In addition, parties should be careful to ensure only the materials permitted in the e-mail or on the disk are included—and nothing extra.
The courts’ positions
Court of Criminal Appeals
The Court of Criminal Appeals does not yet address the electronic transfer or filing of documents except in the very limited realm of death penalty litigation or “other extraordinary matters” where emergency e-mail filings are permitted.# The term “other extraordinary matters” is not defined, but reference to the court’s usage of that term elsewhere provides guidance.# Although the e-mail procedure benefits the defense in capital cases and, presumably, in any criminal case for writs of habeas corpus, both the defense and the State can invoke it in any criminal case when seeking the other familiar writs of mandamus and prohibition. Anyway, the court must be notified in advance by telephone during business hours and paper copies must also be submitted by 9:30 a.m. the next business day. Pleadings cannot exceed 5MB and the sender must obtain telephone confirmation of the e-mailed pleading’s receipt. Pleadings must also be in standard paper format and e-mailed to other parties.
Texas Supreme Court
Effective February 15, 2010, the Texas Supreme Court requires that electronic copies of all petitions, responses, replies, briefs on the merits, amicus briefs, post-submission briefs, motions for rehearing, and emergency motions be mailed or e-mailed the same day as the paper copies.# The rule applies to pleadings in cases on direct review as well as those in original proceedings. Previously, the court had merely requested electronic copies of briefs on the merits, amicus briefs, and post-submission briefs. Emailing the documents does not constitute filing them. Electronic copies must be in PDF with the latest version of Adobe Acrobat. The briefs are posted on the court’s website—although redaction or removal can be requested. Any file larger than 10MB (under the prior voluntary scheme, the file size was limited to 5MB) must be divided into smaller files. Specific labeling and a certificate of compliance and required. Oddly, the rules do not expressly require service of the electronic copies on other parties.#
Second Court of Appeals
In the Second Court of Appeals, “as a courtesy to the court,” parties may submit electronic briefs by e-mail or on CD-Rom.# When submitted these “ebriefs” are not considered a filing. Paper copies of briefs must be filed prior to the ebrief’s submission. Any ebrief larger than 20MB must divided into different files and the files e-mailed separately. PDF files are preferred, although updated Word Perfect and Word are accepted. Specific labeling and certificates of compliance are expected.
The court also accepts fax filings for any document under 10 pages.# If received after business hours, the documents will be filed next business day. Other parties must be similarly expeditiously served, and the sender must retain the original document faxed with the original signature affixed.
Third Court of Appeals
The Third Court of Appeals is “now accepting electronic courtesy copies of filings in addition to the paper copies.” Filing by e-mail is not accepted and, apparently, the use of e-mail is not permitted for transmitting documents.# Electronic files should be on a CD or DVD. Basic labeling of the disks is required. Files must in searchable PDF format in letter-page setup. Hyperlinks to appendices are permitted.
Fourth Court of Appeals
In the Fourth Court of Appeals, “[p]arties may now submit as a courtesy to the court an electronic brief.” The court prefers to receive electronic copies. A party may submit an ebrief by e-mail or by CD, but the submission of an ebrief is not considered a filing.# Labeling and a certificate of compliance are required. A searchable PDF file is preferred, otherwise the latest version of Word Perfect and Word will be accepted.
Filing by fax is permitted for documents of ten pages or less both during and after business hours.# If filing by fax, the court “encourages” service on the other parties by the same method.
Fifth Court of Appeals
Effective October 1, 2009, the Fifth Court of Appeals has instructed that “electronic copies of briefs are required.” Electronic copies of briefs can be transmitted by e-mail or CD, but e-mail is not an effective method of filing a brief.#
Filing documents by fax permitted.# The original paper copy of the faxed document must be received by the court within seven days of the fax. PDFs are preferred, but Word and Word Perfect documents are accepted, and a certificate of compliance is required.
Tenth Court of Appeals
The Tenth Court of Appeals “requests that written briefs on the merits filed before submission also be submitted electronically on a CD-Rom or as an email attachment.”# Searchable PDF is preferred and labeling required. The court directs practitioners to the Texas Supreme Court’s website for additional details on electronic briefing. Electronic filings of briefs are not considered.
Filing by fax is available for motions to extend time to file a notice of appeal; motions to extend time to file a brief; notices changing the designation of lead counsel; motions to extend time to file a motion for rehearing; and, upon the clerk’s prior approval, any other document.# The original paper copy of the fax must be forwarded to the court on the same day as the fax. If the original is not received within five days of the fax, the document will be stricken. The date the fax is successfully transmitted during business hours is the day the document is filed or, if transmitted after business hours, the next day the court is open to the public for timeliness purposes.
Fourteenth Court of Appeals
The Fourteenth Court of Appeals home webpage bluntly states: “No briefs, motions, or other documents will be accepted for filing by email.” But behind that dire warning, the court’s local rules are less hostile. While original paper copies of documents must be filed with the court, in lieu of the multiple copy requirements, a party may file with the original document just one copy of the document on a standard floppy (3½-inch, 1.44MB) or compact disk (700MB).# (Is someone really still using floppy disks?) This rule does not apply to petitions for discretionary review. Text files must be searchable and can be in Word, Word Perfect, Rich Text Format, Adobe Acrobat 5.0 or higher PDF, or ASCII.
First, Sixth, Seventh, Eighth, Ninth, Eleventh, Twelfth, and Thirteenth Court of Appeals
So far, with the single exception of the Eighth Court of Appeals which permits the transmission and filing of documents by fax, these eight intermediate courts do not address electronic document transfers or electronic filing. In the Eighth Court of Appeals, if a document is faxed, the party must retain the original paper copy with the original signature affixed.#
Court of Appeals for the Fifth Circuit
Effective March 15, 2010, the Fifth Circuit requires mandatory electronic filing. Since December 10, 2009, the court has offered “electronic filing to attorneys on a voluntary basis.” Pre-registration for electronic filing is required—allow at least four days to complete this preliminary step.# Also learning modules must be completed and certification of accomplishment provided. Registration is performed through the PACER Service Center.# An untimely registration is not an acceptable reason for an extension of time.
The court already requires electronic copies of documents in addition to paper copies. All documents submitted must be in PDF, and documents are limited to 10MB per file for uploading and 50MB total. Some hyperlinks are permitted. Documents filed electronically must be retained for three years after the mandate issues or the case is closed by order. The Fifth Circuit has the most developed and detailed set of rules of any of the courts.# If in doubt, check out the website.#
Supreme Court of the United States
The Supreme Court of the United States (the court does not want to be addressed as the United States Supreme Court) requires that electronic versions of briefs be filed with the court and opposing counsel in addition to, and at the same time as, the booklet-format briefs.# The electronic briefs must be in text-searchable PDF with the latest version of adobe Acrobat. They should be specifically labeled and are to be e-mailed to the court. The court emphasizes that “e-mailing a brief does not obviate the requirement that a hard copy be timely filed.”
Conclusion and a suggestion
The courts have already required e-transmission of some of you, provided a choice to others, and still others do not yet acknowledge it procedurally. In time, though, everyone will be subject to the requirements to transmit and file documents electronically. It is happening in the appellate courts, some prosecutor’s offices have already committed to becoming paper-free, and trial courts are accepting e-mail communications. It is likely only a short time before all courts will require the filing of all legal documents in electronic format, even if they do not totally dispense with paper.
Although those who practice before several appellate courts might desire that a single set of rules for electronic transmission and filing govern in all courts, perhaps the two high courts are awaiting to learn what they can from the procedures of the intermediate courts before establishing a unified set of hard-and-fast rules for incorporation in the rules of appellate procedure. Nevertheless, when cases wind their way up through the courts, unification of the rules would benefit the bench as much as the bar, especially when cases are transferred between the intermediate courts. And before the appellate courts’ procedures become any more diverse, the time is ripe for consolidating the procedures into a single, streamlined set of rules applicable in all appellate courts. Given their pioneering efforts and comprehensive approach, maybe the Fifth Circuit’s rules can serve as a loose model from which we can build our specific state appellate rules governing the electronic transmission and filing of legal documents. We need to construct some and switch to them soon.
Endnotes
1 The variety of trial courts in Texas is probably without compare anywhere else in the world. The OCA lists the panoply of trial courts’ subject-matter jurisdiction at www.courts.state.tx.us/pubs/ AR2008/jud_branch/2a-subject-matter-jurisdiction-of-courts.pdf.
2 Tex. R. App. Proc. 38.5.
3 See Court of Criminal Appeals Emergency E-mail Filing Seeking Relief in Death Penalty Execution Cases or Other Extraordinary Emergency Matters, available at cca.courts.state.tx.us/rules/ ememail.htm.
4 Extraordinary matters include writs of: habeas corpus, mandamus, prohibition, procedendo, and certiorari. See Tex. R. App. P. 72.1; see also Ex parte Jones, 97 S.W.3d 586, 588 (Tex. Crim. App. 2003).
5 Order Requiring Electronic Documents in the Supreme Court, Misc. Docket No. 09-9193, signed December 15, 2009, available at www .supreme.courts.state.tx.us.miscdocket/09/099919300.pdf.
6 At the time of writing this article in early February, the Texas Supreme Court’s website displays both the new mandatory rules and the previous voluntary requests. It may be that after the rules become mandatory, the website information will change.
7 2nd Tex. App. (Fort Worth) Loc. R. 1(K).
8 Id. Loc. R. 7(B).
9 Information available at www.3rdcoa.courts .state.tx.us/rules/efiling.asp.
10 Information available at www.4thcoa.courts .state.tx.us/ebriefs/ebriefs.asp.
11 4th Tex. App. (San Antonio) Loc. R. 3.2.
12 5th Tex. App. (Dallas) Proposed Loc. R. 10, available at courtstuff.net/5th/eBrief/Rule%2010 %20amended%20change.pdf.
13 5th Tex. App. (Dallas) Loc. R. 3.
14 10th Tex. App. (Waco) Loc. R. 12(g).
15 Id. Loc. R. 8.
16 14th Tex. App. (Houston [14th Dist.]) Loc. R. 2.3.
17 8th Tex. App. (El Paso) Loc. R. 9.1(b).
18 The Fifth Circuit’s standards for Electronic Case Filing (ECF) are available at www.ca5.uscourts .gov/cmec/ECFf%20Filing%Standards.pdf.
19 Application for a PACER account is available at pacer.psc.uscourts.gov/psco/cgi-bin/register.pl.
20 The Fifth Circuit Rules, incorporated in the Federal Rules of Appellate Procedure, are available at ca5.uscourts.gov/clerk/docs/frap2007.pdf.
21 www.ca5.uscourts.gov/.
22 Supreme Court R. 25.9 (revised effective February 16, 2010). The guidelines are available at www.supremecourtus.gov/oral_arguments/2008ElectronicMertisBriefsSubmissionGuidelines.pdf.