CourTex

SRLs and the Bar Part Three

2012-01-26T15:08:00.000-06:00

Well, I learned something important yesterday and it changes my mind about a position I have taken in this debate and on this blog. Pasted below is an excerpt from the State Bar’s strategic plan for FY 2012-2013. This made me realize that I was wrong to resist the idea that the Bar should study the pro se issue, and I trust they will carry out that work as encouraged by Chief Justice Jefferson in his letter back to President Bob Black (reported yesterday by the Texas Tribune). On the other hand, I also read the below to severely undercut the position advanced by the Family Law Section/Foundation that the Access to Justice Commission, as an entity with Bar funding, is illegitimate to the extent that their efforts collaterally benefit anyone but the very poor.

In the same vein, I was also very glad to see that yesterday the Chair of the Family Law Section wrote to the membership: “Neither the Family Law Section nor the Texas Family Law Foundation have ever asked anyone to boycott Legal Aid events or withdraw support from Legal Aid organizations.”

STATE BAR MISSION

The mission of the State Bar of Texas is to support the administration of the legal system, assure all citizens equal access to justice, foster high standards of ethical conduct for lawyers, enable its members to better serve their clients and the public, educate the public about the rule of law and promote diversity in the administration of justice and the practice of law.

STATE BAR STRATEGIC GOALS

SERVICE TO THE PUBLIC

Statement of Purpose

The State Bar of Texas serves the public by: 1) educating the public about the Rule of Law and the role of judges, lawyers, and the public in the justice system; 2) helping lawyers provide the highest quality legal and community service; and 3) working for equitable access and participation in all aspects of the justice system by diverse groups within our society.

Goals . . .

C. Assist in efforts to better focus and increase resources by systematically identifying, prioritizing and timely addressing community needs for service, as well as developing appropriate services and programs to address the needs of under-served populations and low-income Texans. . . .

G. Continue to identify and use new methods and technologies by which pro bono services training can be made accessible to more Texas lawyers.

H. Increase access to consumer legal information for the public, using new technology and media where possible to insure consumers are informed when making decisions regarding legal services.

ACCESS TO JUSTICE

Statement of Purpose

The State Bar of Texas works to ensure access to justice for all.

Goals

A. Augment pro bono services

• Explore new and innovative methods to increase the availability of pro bono legal services to low income Texans in the more remote areas of the state.

B. Build and support partnerships to increase legal services delivery –

• Educate and engage non-legal professionals who can provide relevant resources, including mediators, dispute resolution services, and CPAs.

• Interface and develop collaborative models for service delivery with other agencies providing services for the same populations.

C. Increase efforts for specialty populations –

• Work in collaboration with key partners to increase the availability and utilization of effective high quality pro se information, education, and support materials. . . .

E. Increase the visibility of pro bono efforts and access to justice issues –

• Explore and implement new methods to increase awareness and understanding among Texas lawyers and the public about access to justice issues. . . .

SRLs and the Bar Part Two

2012-01-25T08:40:00.000-06:00

Here is some valuable additional information that was provided to the State Bar Board by the Access to Justice Commission.

State Responses on Standardized Forms

Commission staff has conducted extensive research on the availability of standardized forms in all 50 states and the District of Columbia. This information is a compilation of interviews with representatives from 22 states who were involved in the promulgation of their state’s forms.

1. Is there any evidence that forms have harmed the public?

• No state reported any evidence of harm to the public. Not one person interviewed knew of a litigant who had been hurt by using the standardized forms.

• States reported benefits to self-represented litigants. Many states echoed Kansas, which reported “There already were a wide number of forms being used by the public before we made our forms available. The public was downloading the forms off the internet or purchasing at local stores. Many of these are not Kansas specific and do more harm to the public than the forms we developed.”

2. What has been the impact of state forms on the ability of lawyers to earn a living?

• No state reported any evidence that the forms negatively impacted lawyers’ businesses.

• Many states reported that forms positively impacted attorney businesses.

• Maryland’s observations:

o Attorneys could attract more clients by cutting fees and having clients prepare their initial filings while the attorney focused on the more complex matters involved in the case.

o While forms and self-help centers are good at initiating a case, litigants still have challenges navigating the process, especially in contested trials and complex matters. Lawyers benefit from the state’s efforts with self-represented litigant by referring litigants to the self-help center to complete a portion of the case on their own and then recommend the litigant hire the lawyer to handle other portions.

3. Are the forms restricted to use by the poor?

• No state has restricted the use of state forms to the poor.

• All states report that the majority of litigants accessing various self-represented litigant services are low-income.

• Many states’ access to justice commissions helped develop the state’s forms.

4. What is the impact on judicial efficiency and economy?

• All states report an increase in judicial efficiency and economy.

• Susan Ledray, Senior Pro Se Services Manager, Hennepin County Courts, Minnesota, stated:

o “Forms result in the judge getting the information she needs, instead of struggling to make sense of free-form documents filed by self-represented litigants.

o Staff and judges get used to the forms and where to find the information, and this makes it faster and easier to review forms before and during hearings.

o Form blanks that are not filled in draw attention to the fact that information is missing – while with a customized pleading, the court might not realize at the most opportune time that something is lacking.

o Court staff save a lot of time when able to refer people to written forms and instructions, instead of trying to explain, write notes, or get into an unpleasant conversation with a person who is angry that ‘you won’t do your job and answer my questions.’”

• Every state indicated that pro se litigation is not increased by the promulgation of uniform forms; the forms only make the process more efficient for the courts. Nancy Strauss, Director of Judicial Council of Kansas stated, “They are going to be representing themselves anyway so we might as well give them some tools so it’s not a nightmare for all of us.”

5. How have state bars been involved in their state’s efforts to assist pro se litigants?

• A variety of state bars have been actively involved in efforts to address the problem of pro se litigants. State bars are involved in all levels of pro se programs.

• In Michigan, the self-help website is administered by the state bar.

• In the District of Columbia and Minnesota, the state bar actively promulgates and distributes uniform forms.

• Uniform forms were promulgated by the State Bar of Alabama. In 2005, the state bar appointed a task force to determine if there was a problem with self-represented litigants in the court system. The Task Force studied the issue and arrived at the conclusion that Alabama indeed did have a problem with pro se litigants. The Task Force recommended two courses of action that could be completed without a large expenditure: 1) creating standardized forms and 2) implementing a rule and other tools to further limited scope representation. The Bar approved the Task Force to proceed on creating standardized forms.

• In Oregon, it was the Family Law Section of the state bar that initially recommended that uniform forms be created. The forms were created as a joint effort between the Family Law Council, the State Court Administrator, and the State Court Advisory Committee. There are now over 300 family law forms in existence in that state.

• In addition, the American Bar Association has a pro se resource center located on their website to assist state bar associations with programs aimed at the pro se population.

6. Has the private bar opposed the promulgation of uniform forms in any organized fashion in other states?

• States like Nebraska and South Carolina, which have experienced significant opposition, involved their opponents in the process and in the end came up with better forms. Robin Wheeler, Director of the South Carolina Access to Justice Commission stated that the opponents’ “feedback was incorporated into the forms and ultimately made them better.”

• While some states indicated that there were grumblings here and there by individual attorneys or judges, the Commission’s research did not yield any other states that face organized opposition to uniform forms by the private bar.

School Discipline

2012-01-24T15:19:00.000-06:00

With the roll-out last summer of the "Breaking Schools' Rules" study by the Council of State Governments Justice Center, Chief Justice Jefferson signaled his interest in a topic that has been catching on nationwide, and even "across the pond." (You can view the roll-out event from July 19, 2011, on the Supreme Court's archived webcasts, hosted by St. Mary's University School of law, here.)

Next Thursday February 2nd at 2:00 in the Supreme Court courtroom, the Texas Judicial Council's new Juvenile Justice Committee will take up the issue, with a charge to "Assess the impact of school discipline and school-based policing on referrals to the municipal, justice, and juvenile courts and identify judicial policies or initiatives that: work to reduce referrals without having a negative impact on school safety; limit recidivism; and preserve judicial resources for students who are in need of this type of intervention."

And on February 20th from 1:00-5:00, the Barbara Jordan Freedom Foundation is hosting a symposium entitled "School Discipline: A Pathway to the Juvenile Justice System or an Opportunity for Effective Intervention?" The program features Chief Justice Jefferson, Senator Whitmire, and other luminaries.
An agenda with a complete list of speakers is forthcoming and will be available at: http://www.utexas.edu/lbj/events/2012/barbara-jordan-freedom-foundation-symposium.

Self-Represented Litigants and the Bar

2012-01-24T14:57:00.001-06:00

I was disappointed but not surprised by the State Bar Board's action last Friday in response to intense lobbying by the Family Law Section/Foundation, as reported in today's Texas Tribune. I spoke at the hearing and provided some new data collected by my office that shows that 21.6% of family law matters in district and county courts in Texas are initiated by a "pro se" or self-represented petitioner. (My previous post asserted that 45% of divorce cases, a subset of all family law, are self-represented, and I stand by that estimate, which was also validated by the Travis County District Clerk's office.)
I also told the Bar Board that my national group published a paper on this topic all the way back in 2000, and that the Future Trends in State Courts publication has featured the topic of SRLs in the last five editions, so it isn't like the Access to Justice Commission just came up with this problem out of the blue. I wanted to point out, but my three minutes did not allow for it as I recall, that in fact the people who are currently using forms are mostly poor; data from TexasLawHelp shows that 62% of those who access the forms on that website earn less than $26,000 per year. (The gravamen of the Family Bar's complaint seems to be that some people who aren't poor enough to be deserving of the ATJ Commission's concern and effort will benefit from forms.)

So as reported, the Bar voted to gather data regarding the pro se issue [despite my suggestion that we have plenty of data], identify any problems presented by pro se litigants as to how courts and others are currently handling pro se litigation [despite several years of work by my office and others as noted in another prior post], and work with all stakeholders to provide potential solutions to the Supreme Court. The vote had no deadline for this work but State Bar President Bob Black - whom I like and admire although we disagree on this issue - indicated a six to nine month process. Yes, this work needs to involve all stakeholders, but I continue to believe that the problem is well documented, that several strategies to address it are well established, and that it isn't really the Bar's job, from their arguably self-interested perspective, to study the self-represented and how the court system should respond.

Yesterday an email blast went out to Texas Family Lawyers over the signature of the Chair of the Family Law Section, encouraging the members to thank the Bar Board for their vote and including the following language:

The Forms Task Force is just one component in a seven-point Access to Justice Commission plan that will assist pro se litigants by re-engineering the justice system and the role of lawyers in it—using the central authority of the Supreme Court to issue a top-down order to implement the changes statewide. Our position has been and continues to be that ATJ’s seven-point plan is beyond its charter and that any such overhaul of the system should properly be led by the State Bar, its Sections, and its members.

Just to get it all out there, that dire assertion appears to be based upon their reading of a document dated July 1, 2011, reproduced in full below:

Texas Access to Justice Commission

Self-Represented Litigants Committee

The Self-Represented Litigants Committee (herein “SRL Committee”) was formed in the wake of “The Texas Forum of Self-Represented Litigants and the Courts” held in April 2010. The Forum was hosted by the ATJ Special Projects Committee and co-sponsored by the Office of Court Administration, the Texas Access to Justice Foundation, the Legal Services Corporation, and the Texas Legal Services Center. Additional support was provided by the Texas Bar Foundation and the Dallas Bar Foundation.

The SRL Committee is charged with addressing the challenges presented by the increasing number of self-represented litigants interacting with Texas courts by providing tools to help pro se litigants navigate the court system.

The SRL Committee has formed six subcommittees to improve services to pro se litigants. The subcommittees are: Uniform Rules and Guidelines, Education, Self-Help Centers, Assisted Pro Se, Limited Scope Representation and Communication & Information Dissemination.

Uniform Rules and Guidelines Subcommittee: The Uniform Rules and Guidelines Subcommittee will be recommending model court rules, legislation, and other policies to assist self-represented litigants or to clarify how various stakeholders in the court system properly interact with self-represented litigants. The Subcommittee is currently investigating which states have rules requiring their local courts to accept pleadings and orders approved by their Supreme Court. It is also researching which states have adopted a standardized policy and form on how to evaluate an Affidavit of Inability to Pay Costs filed by a self-represented litigant.

Education Subcommittee: The Education Subcommittee will inform and educate the judiciary, private bar, and the public about self-represented litigant issues, and how to more effectively serve self-represented litigants. The Subcommittee is currently devising a workshop for members of the judiciary and court personnel. This training will eventually be conducted in all nine administrative judicial regions. Clerks and court staff will be trained on how to provide legal information while remaining impartial, maintaining confidential information, and avoiding ex parte communications. Further, participants will be taught the critical difference between legal advice and legal information. The Subcommittee is also working on a series of workshops to be given to new local bar leaders at the annual Local Bar Leaders Conference held by the State Bar of Texas in Houston this July.

Self-Help Center Subcommittee: The Self-Help Center and Services Subcommittee is working towards expanding the quantity and quality of self-help centers across the state. The Subcommittee is currently assembling a comprehensive list of self-help centers and assessing what kind of technical assistance these centers need to more effectively serve litigants attempting to represent themselves.

Assisted Pro Se Subcommittee: The Assisted Pro Se Subcommittee is working towards expanding the availability of legal services for pro se litigants. Specifically, how legal service or pro bono attorneys can help pro se litigants represent themselves in court, including preparing pleadings and other court forms, advising which course of action to take, and preparing for hearings.

Limited Scope Representation: In conjunction with the Rules Subcommittee, the Limited Scope Representation Subcommittee will draft rules to allow attorneys to more easily assist people on a limited scope basis. The subcommittee will work with the private bar to help attorneys understand what limited scope representation is and how to go about developing it as a new business model of practice.

Communications and Information Dissemination Subcommittee: The Communications and Information Dissemination Subcommittee is developing a plan of how to effectively communicate with the judiciary, private bar, and the public about the self-represented litigant issues. The subcommittee will also create a clearinghouse of information regarding SRL initiatives and resources.

Supreme Court Uniform Forms Task Force: The Task Force is charged with developing proposed pleading and order forms, to be evaluated and approved by the Court, with the express purpose of enabling the courts to help pro se litigants navigate the legal system and improve court efficiencies. The Task Force meets on a monthly basis and is working on basic family law forms for a divorce without children. The Task Force is set to complete these pleadings and forms by September 2011.

That's it; six subcommittees plus a task force apparently equals a seven point ["re-engineering"] plan. If the Bar study effort forms any subcommittees, I guess the number of them will dictate the points in their plan. The dreaded "top-down order" must be a reference to the Uniform Rules and Guidelines Subcommittee, which has not come up with anything they would recommend in the way of uniform rules or legislation. Of course, there is the presenting problem, we would like the Court to adopt safe-harbor uncontested divorce forms like they already have with the Protective Order Kit. I did not hear any testimony at the Bar Board in opposition to that kit, and I would hope that it will not be attacked, but everything the family lawyers said in the hearing would apply conceptually to that prior effort.

Here's hoping that there is middle ground somewhere in this mess!

Shared Solutions Summit

2012-01-11T08:45:00.000-06:00

In the first “Shared Solutions Summit” this week in Austin, judges, clerks, prosecutors, attorneys and others involved in the courts across Texas shared best practices and procedures for handling criminal, child protection, juvenile and civil cases.
The conference and other that follow, led by Chief Justice Wallace B. Jefferson, promotes the exercise of judicial leadership at the local level, the use of data-driven strategies, and a collaborative approach to ensure that cases are disposed efficiently and with improved outcomes.
For example, Bell County courts, serving a Fort Hood population, see a high volume of divorce matters and high percentage of self-represented litigants. They already have some good procedures but at the Summit identified the idea, from Lubbock, of developing a video to orient litigants. The Fannin County team worked on enhancing their mental health diversion court, with new ideas for grant funding, and an offer to learn more from Judge Susan Hawk’s Dallas County mental health court. Conference evaluations praised the ability to interact within teams, with other teams, and with people who have “done it” and were willing to share their experience.
“This whole conference is about courts, and courts are devised for helping people with their sometimes critical problems,” Chief Justice Jefferson said. “These all-too-real human problems present major cost and management problems for all of us in the courts – and for the people of Texas. And while justice is a tiny fraction of the state budget, it is a major component of local budgets.”
As leaders working to assure justice in the state’s communities, he said, the participants in this summit show their determination to make courts work better by attending.
The Shared Solutions Summit was started by Chief Justice Jefferson and the Texas Judicial Council, a policymaking body which he chairs. The Texas Conference of Urban Counties provided primary financing, with financial or substantive support from the Court of Criminal Appeals, the Supreme Court Children’s Commission, the Texas Indigent Defense Commission, the Judicial Committee on Information Technology, the Texas Municipal Courts Education Center, the Texas Center for the Judiciary, the Texas Association of Counties, the Texas Access to Justice Commission, the National Center for State Courts, the National Council of Juvenile and Family Court Judges and the State Justice Institute. Jefferson hopes to offer the program to a new group of local teams at least every other year.

State Jail Diligent Participation

2012-01-03T14:52:00.002-06:00

In 2007, when I was using the name CourTex for a quarterly newsletter, I wrote a special issue on state sentencing, and said this (p. 4) about the state jail innovation:

[A] correctional agency has an inherent interest in maintaining some otherwised unpopular features in state sentencing laws - good conduct time and parole - that provide "back end discretion" and therefore some behavioral incentive during incarceration. This is the enduring lesson of the state jail scheme, which does not provide any such incentive, and has proved challenging to implement as a result.

Now that issue has been addressed by the legislature, and in turn by TDCJ. In order to provide an incentive for state jail felons to participate in rehabilitation in accordance with HB 2649 from the 82nd Legislature, the Texas Department of Criminal Justice will provide a progress report to the sentencing judge, which will include information such as name, date of birth, offense, sentence begin date, current discharge date, and diligent participation days. The sentencing judge may credit up to 20% of the offender's sentence for days served as long as the offender was diligently participating in a program and not subject to disciplinary action.

TDCJ's website has the following page with discussion and a link to further instructions, http://tdcj.state.tx.us/divisions/cid/cid_support_ops_class_HB2649.html, and this page can also be reached by clicking on the Online Services Tab on the TDCJ home page, http://tdcj.state.tx.us/ then choosing State Jail Diligent Participation towards the bottom of that page.

Courts Are Not Revenue Centers

2011-12-22T11:21:00.001-06:00

As foreshadowed recently, the COSCA Policy Paper for 2011, "Courts Are Not Revenue Centers," is now available online. My thanks to the Policy & Liaison Committee of COSCA, and the always helpful and skilled staff of the National Center for State Courts.

When I became director of OCA in April 2005, we were in the middle of legislative session, and it was all about money, what a surprise. My small agency's part in the drama, accounting for the first several meetings I attended, was about legislation to require large jurisdictions to follow a model collection improvement program that OCA had devised for voluntary adoption. The program was aimed at collecting the myriad costs that are imposed on conviction of a criminal offense. Of course, the purpose of the legislation was to maximize state revenue, and I only learned later about the conversations behind the scenes, where the expected additional revenue was being earmarked for various purposes, some more appropriate than others. This was my introduction to the world of court costs and fees in our state, a topic that has necessarily become much more familiar over time, leading up to my keen interest in developing this newest Policy Paper (formerly "White Paper") for COSCA.

The paper has six parts, including an introduction, definitions and a conclusion, so I am going to focus here on the meaty middle three parts. Two of them are devoted to case law from the states, and I confess that is one thing that appealed to me about this topic; both chiefs and administrators share in this issue. The first of these, Part Three of the paper, addresses the open courts problem of creating too high a barrier to filing a case by imposing filing fees in civil cases, citing cases from Texas, Louisiana, Oklahoma, Alabama, Florida, Arizona and Illinois. As stated by my favorite court, the theme of that section is "If the right to obtain justice freely is to be a meaningful guarantee, it must preclude the legislature from raising general welfare through charges assessed to those who would utilize our courts."

Part Four addresses the corollary problem, a separation of powers problem, of heaping costs and surcharges upon those convicted. Cases from Wyoming, Michigan, Virginia, Arkansas and Missouri are added to the mix. Most courts agree that costs imposed must bear a reasonable relationship to the expenses of prosecution, but courts vary widely in their application of this test.

In Part Five, we have refined and reasserted as principles a set of standards governing court costs and fees, ostensible standards that were adopted by COSCA thirty years ago. In your handout, the last page is a restatement of just those seven standards, couched as statements of policy, so you can take a look if you haven't had a chance to digest the paper. A couple are uncontroversial or so clearly based on constitutional law that they are incontestable. Others you may find more challenging, particularly as you get into the specific history and system in a given state. The committee clearly acknowledges the tension between principles and the realities we all face, but offers the policy statements as guideposts to direct reasoned conversation and the balance of competing interests.

The bottom line: Courts are not revenue centers. That is the title of this year's policy paper, and it goes to the heart of the aspiration that the Policy and Liaison Committee espouses. Because people are compelled to use the courts on occasion, there is a strong pull toward a user fee mentality, and we all feel it. But there are several problems that flow from viewing the courts as revenue centers. The three major ones are unfathomable complexity, unfair financial burdens on those unable to meet them, and inappropriate, even unconstitutional, fund allocation.

I first experienced the unfathomable complexity of the Texas regime back in 2005. That's when I learned that one of my lawyers, Ted Wood, understands the system and publishes guides for clerks, available on Texas Courts Online under the topic "For Trial Courts." Take a look at the documents under Filing Fees and Costs, to get an idea of one state's complexity.

But here in Texas I get the sense that the complexity is less of a concern to legislators than the growing impact on those who pay, and the growing sense that these are taxes by another name. Last session we tried to save indigent defense and legal services with new court costs and fees, and were rejected on that basis.

What I propose is to take this paper to our Judicial Council, and begin to formulate a new cost and fee system, built from the ground up. I want to focus on the clearly legitimate court funds that are fed by costs and fees, and work our way out in both directions from there. See what fees feed into those funds and simplify their structure and administration. And, see what court services are funded, and what else is funded with court revenue, to see if we can provoke a consensus on finding other money to take care of the executive branch programs that currently feed off the courts.

Last session I told the appropriations committee that the courts in Texas generate $450 million for the state, and the state spends $300 million on the courts. Next session I hope we can bring those numbers into a better alignment, but without tying the courts to revenue they generate. It is a difficult and dicey proposition, but as our paper advocates, state court leaders should each try to take on this problem in our respective states.

Terms of Court and Grand Juries - Correction

2011-12-20T09:44:00.001-06:00

The bad news is, whoops. The good news is, I have been advised that a pre-existing statute in our large garden of laws of court should cover the concern raised in my previous post:

Govt Code Sec. 24.018. CERTAIN EFFECT OF DISTRICT REORGANIZATION. If the counties that compose a judicial district or the time or place for holding terms of a district court are changed by law:

(1) the process and writs issued from the district court and made returnable to a term of court fixed by the law at the time of the issuance are returnable to the next term of the court as fixed by the amended law and are as legal and valid as if they were made returnable to the term of the court as fixed by the amended law;

(2) the grand and petit jurors selected or drawn under the prior law in any county in the judicial district are lawfully selected or drawn for the next term of the district court of the county as fixed by the amended law; and

(3) the obligees in all appearance bonds and recognizances taken in and for the district court and the witnesses summoned to appear before the district court under the prior law are required to appear at the next term of the court as fixed by the amended law.

Terms of Court and Grand Juries

2011-12-16T08:27:00.000-06:00

Judges of Texas, please take note, this is an issue that you may not be aware of and it is important!

HB 79, the Court Reorganization bill from the First Called Session, contains a provision (Sec. 3.03 of the bill) establishing two terms of court each year in every district court in the state. The first term of court begins on the first Monday in January. The second term of court begins on the first Monday in July. Each term of court continues until the day on which the succeeding term of court begins.

The provision – codified as Government Code, Section 24.012 – becomes effective January 1, 2012. HB 79 does not address the transition from the system of terms of court under current law to the new terms of court.

Under current law, different district courts have different terms of court. The terms of court in a particular district court are established by the statute creating the court. For example, the 174th District Court of Harris County has four terms of court each year. See Texas Government Code, Section 24.267. Those terms begin on the first Mondays in February, May, August, and November.

Section 24.012 states that the new general rule will control over the current specific provisions. Accordingly, all district courts will have the same two terms of court each year. We believe that all terms of court established under existing law will come to an end on Sunday, January 1. The new system of two terms of court each year will begin the next day.

Terms of court are significant with respect to grand juries. Grand juries are impaneled to serve for a particular term of court. The new law raises a question about grand juries that are in the middle of a current term of court on January 1. The specific question is whether such a grand jury retains the power to act until the end of the originally-scheduled end of that term.

We believe the answer is no. We believe that when the term of court ends, the power of the grand jury ends. The only exception would be an extension of the grand jury’s term under Article 19.07 of the Code of Criminal Procedure. Such an extension, however, can only be made to allow for the conclusion of an investigation of matters presently before the grand jury. The grand jury is not authorized to consider new matters.

COSCA White Papers

2011-11-28T12:54:00.001-06:00

As I pointed out in 2010, my national group, the Conference of State Court Administrators (COSCA) issues a policy paper each year, known to many as the "COSCA White Paper." Working on racialdisproportionality in child welfare and other systems has sensitized us to thefreighted significance of such terminology. We now refer to it as a PolicyPaper, for that is what we hope the Policy & Liaison committee will produce, a statement ofprovocative and helpful policy guidance for the leaders of the states'court systems. As the current chair of that committee, I hope to release the newest paper, "Courts Are Not Revenue Centers," in the very near future. In the meantime I thought it would be helpful to share a compilation of the last decade-plus worth of very good papers:

Position Paper on Problem-Solving Courts (1999)

Self-Represented Litigation (2000)

Access to Court Records (2000)

State Courts' Responsibility to Address Issues of Racial andEthnic Fairness (2001)

EffectiveJudicial Governance and Accountability (2001)

Court Leadership in Justice Information Sharing(2002)

Effective Management of Family Law Cases (2002)

StateJudicial Branch Budgets in Times of Fiscal Crisis (2003)

Safety and Accountability: State Courts and DomesticViolence (2004)

The Emergence of E-Everything (2005)

Emergency Preparedness in the State Courts (2006)

White Paper on Court Interpretation: Fundamental to Accessto Justice (2007)

Promoting a Culture of Accountability and Transparency:Court System Performance Measures (2008)

Digital Recording:Changing Times for Making the Record" (2009)

The Demographic Imperative: Guardianships andConservatorships (2010)

Grant Award to Lone Star Legal Aid

2011-11-02T12:50:00.000-05:00

Readers of this blog have seen a number of posts on civil access to justice, the self- or un-represented, and related topics, topics of sustained interest for me and many in my work world. Today I am pleased to echo the announcement that Lone Star Legal Aid, in partnership with the Texas Legal Services Center and OCA, received a grant award from the Legal Services Corporation's TIG (Technology Improvement Grant) program. As described in this excerpt from their press release on a total of $3.6 million in grants:

LSC-funded programs are overwhelmed with requests for civil legal assistance, in part because of the economy. Courts—especially housing and family courts—have seen an increase in the number of low-income individuals without a lawyer. Studies in several states have found that about 80 percent of the legal needs of low-income families go unmet.

The systems that LSC-funded programs use to conduct client intake—most often telephone hotlines and in-person interviews—are often swamped by requests for legal services, frustrating clients and programs. The new round of technology grants continue efforts to develop new, user-friendly online intake systems for clients who need alternatives that permit the filing of applications for legal assistance outside normal business hours. . . .

In an effort to help people who must navigate courts without a lawyer, Lone Star Legal Aid will undertake a project to merge Texas Law Help, which provides self-help forms, and Texas Courts Online, which offers information about the state court system. The project will create a one-stop, easy-to-understand information source and include Spanish and Vietnamese translations of legal forms.

This topic always reminds me of an excellent 2005 report that I've saved, called "Civil Legal Assistance for All Americans," by Jeanne Charn and Richard Zorza. It has seemed to me that the full access vision they espouse should be a template for our work in Texas, with the Census bureau recently documenting the increase of people living in poverty in our state, from 4.26 million to 4.63 million. Charn and Zorza advocate a full-access legal system with the following foundational principles:

Scope and Coverage of a Full-Access Legal Services System

An expanded delivery system should serve moderate- as well as low-income people.
The types of legal needs for which assistance will be provided should be defined as a matter of policy. Specific service priorities, within broad categories, should be determined locally.
Consumers will be entitled to advice and assistance, but an attorney’s services should be available only when lawyers provide the highest-quality and most cost-effective response.
Consumer Assurances and Responsibilities
Consumers should have a choice of providers appropriate to meet covered needs.
An expanded delivery system should be consumer-driven, clientcentered and holistic.
An expanded delivery system should protect representation of unpopular claims and insulate funders from the appearance of interference with service to individual clients.
Consumers should be responsible for copayments for many services as well as reimbursement of out-of-pocket costs related to service.
Provider Diversity and Innovation
Courts and administrative agencies should reform their rules and processes and provide information and assistance in order to reduce, wherever possible, the need for full-service attorneys.
The private bar should be the first resource for low- and moderate income people with legal needs.
Private attorneys should have opportunities to provide service, on a paid basis, when they are a cost-effective and high-quality option.
Paralegals should provide service in all areas permitted under existing rules. Policymakers and bar leaders should support expanded paralegal practice with appropriate quality assurances and consumer protections.
Technology should be fully deployed to deliver assistance directly to consumers and as an integral part of the infrastructure of a full-access delivery system.

I hope that we can have a rational conversation here in Texas and pursue a vision that will provide justice for all.

Workers' Compensation

2011-10-20T14:24:00.000-05:00

I realize the ABA is viewed as liberal in general and plaintiff-oriented in civil matters, so caveat emptor. I am a member and I read their magazine, as well as the criminal justice section magazine, which, on another topic of interest in my world, has an article in the most recent issue on Eliminating Excessive Public Defender Workloads.
The ABA Journal recently ran a pretty scathing article on the Texas Workers' Compensation System; here is a thematic sentence:

[S]everal decades of tweaking—through legislation, policy and business practices mostly meant to target scams by physicians and medical services providers—have gone beyond simple reform. Critics of the system say it has become so hostile, so skewed toward delay and denial that lawyers, physicians and even legitimate claimants have been driven away.

This is a topic that I have been around, working in the legislature back in the late 1980s/early 1990s, and I know several of the people who were intimately involved in the machinations back then, but it has never been an area of actual understanding on my part. (So I confess my ignorance.) But I found the article troubling and compelling, and if I were a legislator I might be stirred to attempted action. But in my actual role, what interests me most is the removal of matters of dispute from the system that is contemplated by our three-branch system of government, the courts. Here is a chart from OCA data that succinctly tells that story.

Judicial Compensation

2011-10-14T11:50:00.000-05:00

The reporting on the Texas Department of Transportation's new director's compensation prompts me to point out the stunning disparity between the numbers under discussion there and the compensation we pay to judges in particular (not to mention other public servants such as yours truly), and the Chief Justice in particular. The prior director of TxDOT (an engineer) received $192,500 per year and the TxDOT board wants to pay the new gentleman (an MBA) $381,000, but according to today's Statesman, he will have to settle for only $292,500. I hope that he will feel better knowing that the latter at least puts him one step closer to the top of the comparables list that the Judicial Compensation Commission published (based on the General Appropriations Act) as Table 10 in their most recent (2010) report, which has these figures for "Salaries of State Constitutional, Elected and Other High-Ranking Executive Office Holders":

Executive Director: Employees Retirement System $300,000

Executive Commissioner: Health and Human Services $210,000
Executive Director: Department of Transportation $192,500
Commissioner: Texas Education Agency $186,300
Executive Director: Department of Criminal Justice $186,300
Commissioner: Department of State Health Services $183,750
Executive Director: Department of Information Resources $175,000
Executive Director: Department of Public Safety $162,000
Executive Director: Texas Youth Commission $160,000
Comptroller of Public Accounts $150,000
Attorney General $150,000
Governor $150,000
Executive Director: Commission on Environmental Quality $145,200
Agriculture Commissioner $137,500
Commissioner of the General Land Office $137,500
Railroad Commissioner $137,500
Secretary of State $125,880

Average $169,966
Median $169,000

The Chief Justice of the Supreme Court of Texas, and the Presiding Judge of the Court of Criminal Appeals, are paid $152,500. (The Commission's report recommended increasing that amount to $168,000 but of course there was no serious talk of judicial pay raises during the last session.) Other Texas judges' salaries go down from there, except for some county court at law judges whose locally-supplemented pay puts them above their arguably higher-ranked district and appellate brethren.

And for the record, after 26 years of state service as a lawyer, general counsel and now agency director, I make $130,000 and feel privileged to make that kind of money in this economy, get to do what I do, and work for Chief Justice Jefferson.

Capital Punishment

2011-10-13T08:22:00.000-05:00

At the request of Senator Carona's staff, a few days ago I was privileged to meet with an international group, including members of parliament from Sri Lanka and Nepal. Inevitably, the conversation turned to capital punishment in Texas, and I told them that imposition of the death penalty has gone down fairly dramatically in recent years. Later on I wanted to fact check myself and asked our amazing Judicial Information manager, Angela Garcia, to run this graph for me from our data.

In addition to reassuring me that I told them correctly, one thing I find interesting about this graph is the fact that life without parole was not adopted until 2005 (S.B. 60 by Lucio), but the downward trend was well established well before then. My other thought was, "how much of this trend is driven by Harris County?" TDCJ's information shows that 106 of 308 offenders on death row are from Harris County. Here is what OCA data shows over time.

Finally, in direct comparison to the first chart, here is what our data shows for Harris County's choice of the death penalty versus other punishment in capital cases.

Leadership, Collaboration, and Data

2011-10-02T15:12:00.000-05:00

In September I had the privilege of addressing the Annual Judicial Conference, on changes facing the judiciary. Two themes were the growing significance of litigants presenting special challenges - children, the unrepresented, the Limited English Proficient, the mentally impaired, the elderly, and so on; and the diminishing significance of tort litigation as part of the state court caseload. I suggested that judges embrace their growing role as gatekeepers to services and sorters of troubled humanity, and that they should expect, and be expected, to operate as problem-solving judges and not only in the traditional, adversarial mold.

A great resource for judges on how to facilitate positive change and achieve better outcomes, is "Building a Better Collaboration - Facilitating Change in the Court and Child Welfare System," an NCJFCJ Technical Assistance Bulletin, which is not available online to my knowledge. In addition to basics of child welfare law, the book goes through learning organizations ala Peter Senge; leadership in general and judicial leadership in particular; creating a collaborative, problem-solving culture; using effective meetings and communication; the importance of data and evaluation; and the strategic achievement of planning, effecting and sustaining change. It is a digestible and yet complete guide to what we know about moving groups of well-meaning humans through a deliberative and synergistic process of improvement. For the Shared Solutions Summit and in general when pondering this work, I boil down the method into Leadership, [multidisciplinary] Collaboration, and Data.

Race and Risk II

2011-09-26T09:47:00.000-05:00

At the beginning of the month I introduced Donald Baumann on this topic of continuing interest, and have been in contact with him since then. Here is Donn's response to my post, setting out his view of the current state of the data.

"Over-representation comes from several sources and we have evidence for some of them. According to the latest National Incidence Study (NIS 4), African American families are more likely to maltreat their children under certain conditions. However, if you look closely at the Texas CPS data on substantiated maltreatment, controlling for poverty, single parenthood, young parents, number of children and other factors, a picture of racial bias emerges.

What we find is that even at lower levels of risk of future maltreatment (which includes prior reporting), workers are more likely to substantiate African Americans than Anglos. What this means is that both bias and maltreatment may play a part in all of this but no one knows what that part is. In our view, poverty is the key because it is viewed differently for African Americans than it is for Anglos and, as a result, the threshold for substantiation is lower for African Americans than Anglos. At present, however, no one knows what features of poverty are related to substantiated maltreatment and what are related to bias.

One major source of over-representation that we know about is the higher reporting rates for African Americans, relative to Anglos. This higher rate appears to move through what we refer to as the CPS Decision-Making Continuum from intake to service provision and placement of children into care. Thus, some of the higher rates of disproportionality results from reporting and that contribution to disproportionality continues to move through the system.

So why is there so much disproportionality at reporting? Some have argued that people who are low income are often under greater scrutiny through their contacts with social service programs, increased law enforcement in low-income neighborhoods, etc., so this likely increases reporting about these families - thus, we can't say with certainty whether "repeated contacts" are truly indicative of greater rates of maltreatment among African Americans or of unidentified maltreatment among other racial groups.

Others have argued from data such as infant mortality rates that the reporting rates appear similar to the fatality rates and, because the latter is not as subject to bias as reporting rates, the reporting rates are real.

Finally, we don't know much about the potential for reporting bias. It may be that, much like the substantiation decision, the decision to report contains some disparate features that are related to actual maltreatment and some that are related to bias.

Another source of over-representation is decision-making bias that contributes to the higher rates of placements into care for African American children relative to Anglos and the lower rates of reunification for African American children relative to Anglo children. Regarding the latter two sources (flow in and out of the system) we controlled for the same factors as above for substantiation and; in the case of reunification, drug abuse and inadequate housing are additional factors that are controlled for.

Our findings are similar to those with regard to substantiation. What this means is that both underlying risk of maltreatment and racial bias play a part in how cases flow in and out of the CPS system of care and disproportionality is the result."

Collection Improvement - and Job Postings

2011-09-23T12:51:00.000-05:00

Collection of court costs is an important reflection of respect for the rule of law, and an important revenue source for many programs, and I have written briefly on the topic previously. We describe OCA's collection improvement program in the Texas Administrative Code (1 TAC 175.1) thus:

The OCA Collection Improvement Program applies to criminal cases in which the defendant agrees to or is required to pay all court costs, fees, and fines under a payment plan rather than when they are assessed and payment is requested. Although the program can be utilized by a judge in virtually every criminal case to effectuate the judge’s financial orders, it is not designed to influence the judicial determination of whether to order payment of costs, fees and fines, or otherwise to affect the sentencing or other disposition decision that is within the judge’s discretion. The program is simply designed to improve the collection of court costs, fees and fines that have been imposed, while helping defendants satisfy their obligations. The program is not intended to conflict with or undermine the provision to defendants of full procedural and substantive rights under the constitution and laws of this state and of the United States.

For the full text of the existing rule, and considerably more information about the program, visit the website. With a few new counties entering the program due to the 2010 census, we want to make sure that folks are aware of the program, but also that local officials realize two things:

1. I have the authority to grant a waiver to a county for whom the program is actually not cost effective, and am willing to talk through what that computation might look like, and grant a waiver(s) if justified.

2. We have spelled out the program in great detail through the Administrative Code, and the APA says you can petition an agency for the revision of rules, but no one has requested revisions. Stay tuned for the possibility of refinements that we propose, and an opportunity to comment on those or upon the rules otherwise.

Finally, it is important to note that the Legislature has given OCA responsibility for auditing local compliance with this program (a function formerly assigned to the Comptroller). We have an opening posted and have conducted interviews for a Managing Auditor, and will be posting additional openings for this program in the near future.

Small Claims Cases

2011-09-14T14:12:00.000-05:00

Just about the only controversial feature of the major court reorganization bill, HB 79, 2nd Called Session (and SB 1717 during Regular Session) was the repeal of Chapter 28 Government Code, which designates justices of the peace as small claims courts, to be replaced with a single body of procedural requirements for civil cases in JP court, be they small claims or otherwise. Article 5 of HB 79 is the operative portion, and this is the major new provision:

Sec. 27.060. SMALL CLAIMS. (a) A justice court shall conduct proceedings in a small claims case, as that term is defined by the supreme court, in accordance with rules of civil procedure promulgated by the supreme court to ensure the fair, expeditious, and inexpensive resolution of small claims cases.

(b) Except as provided by Subsection (c), rules of the supreme court must provide that:
(1) if both parties appear, the judge shall proceed to hear the case;
(2) formal pleadings other than the statement are not required;
(3) the judge shall hear the testimony of the parties and the witnesses that the parties produce and shall consider the other evidence offered;
(4) the hearing is informal, with the sole objective being to dispense speedy justice between the parties;
(5) discovery is limited to that considered appropriate and permitted by the judge; and
(6) the judge shall develop the facts of the case, and for that purpose may question a witness or party and may summon any party to appear as a witness as the judge considers necessary to a correct judgment and speedy disposition of the case.

(c) The rules of the supreme court must provide specific procedures for an action by:
(1) an assignee of a claim or other person seeking to bring an action on an assigned claim;
(2) a person primarily engaged in the business of lending money at interest; or
(3) a collection agency or collection agent.

(d) The rules adopted by the supreme court may not:
(1) require that a party in a case be represented by an attorney;
(2) be so complex that a reasonable person without legal training would have difficulty understanding or applying the rules; or
(3) require that discovery rules adopted under the Texas Rules of Civil Procedure or the Texas Rules of Evidence be applied except to the extent the justice of the peace hearing the case determines that the rules must be followed to ensure that the proceeding is fair to all parties.

(e) A committee established by the supreme court to recommend rules to be adopted under this section must include justices of the peace.

Last week the court issued an order creating the new task force, which looks like an excellent group. It is my unofficial understanding that the first meeting will be held on October 26th in Austin.

Texas Judicial Organization

2011-09-09T14:44:00.001-05:00

I guess this will be an annual event since I made the same basic point about a year ago last May. Justice Willett's May 27, 2011 glib, scathing and comprehensive critique of our court "system" in his dissent in In re Coy Reece begins:

Intrepidity at the Alamo; entering the United States as the Republic of Texas; fifty-eight Texas-born recipients of the Medal of Honor; Bob Wills and George Strait; Nolan Ryan and Babe Didrikson Zaharias; five Super Bowl titles (sadly none this millennium); Dr Pepper and the “little creamery” in Brenham; deep-fried anything at the State Fair; a spirit of daring and rugged independence—the sources of Lone Star pride are innumerable.

Unfortunately, the juris-imprudent design of the Texas judiciary does not make the list. Today’s case is a byproduct of that recondite web, sparking a game of jurisdictional hot potato between us and our constitutional twin, the Court of Criminal Appeals. Truth be told—and this particular truth has been told repeatedly—the State’s entire Rube Goldberg-designed judicial “system” is beyond piecemeal repair; it should be scrapped and rebuilt top-to-bottom. . . .

As one might imagine, our bizarre structure has generated some fanciful factoids—practical problems and offbeat jurisdictional oddities that clog the everyday inner workings of our judiciary. Consider:

• Texas has at least nine different types of trial courts, “although that number does not even hint at the complexities of the constitutional provisions and statutes that delineate jurisdiction of those courts.”40 Whether a given trial court has jurisdiction is a five-step inquiry.41

• As Chief Justice Jefferson has pointed out: “Some counties share a multi-county district court, while others have multiple districts within the county. And some counties are part of more than one district, creating a shifting target for litigants who may not know which court’s rules prevail. Overlapping geographical jurisdiction creates confusion for litigants and increases the risk of conflicting rulings in a single area.”42

• At least one county court has no civil jurisdiction whatsoever.43

• Only eight percent of Texas’s justices of the peace are lawyers, even though they can hear cases involving multimillion-dollar claims.44

• A civil suit that would be tried before a twelve-person jury in district court would be tried before a six-person jury if filed in a county court.45

• District court vacancies are filled by appointment by the Governor46 but statutory county court vacancies are filled by appointment by the county commissioners, even though those courts frequently have jurisdiction over the same matters.47

• Whether there is a minimum monetary limit on the State’s district court jurisdiction actually remains an open question.48 While the Constitution has been amended to eliminate a monetary minimum, there is some argument that it is still implied.49

• Generally, jurisdictional limits on statutory county courts range widely by county—from $500 to $100,00050—and some such courts have no monetary limits at all.51

• “Appellate rights can vary depending on which court a case is filed in, even among trial courts with concurrent jurisdiction, and even when the same judge in the same courtroom presides over two distinct courts.”52

The legislature managed to improve upon one of those anomalies - the subject matter jurisdication of statutory county courts - with the passage of HB 79 by Rep. Tryon Lewis and Senator Robert Duncan, in the first called session this summer. Judge Gary Harger worked hard on the bill on behalf of my office and authored a nice summary in this month's Texas Bar Journal.

Race and Risk

2011-09-01T12:34:00.000-05:00

Yesterday the Statesman reported on the continuing saga of "The seven [capital murder] cases identified by [then Attorney General] Cornyn [that] were all tainted by testimony by psychologist Walter Quijano, who regularly told juries that defendants were more likely to commit future criminal acts because they were black or Hispanic." I remember well when this saga was much younger, I was with TDCJ, and I hosted a group of Argentinian students in a discussion of the American death penalty and Victor Saldano, on death row in Texas from Argentina and one of the seven cases. I showed them his page on the death row website and they said something to effect of "why do you even list his race? You Americans are totally hung up on race." That really stayed with me.

And yes, we are indeed, but not without good cause at this point in our history, as Quijano's fairly recent testimony suggests. I am among those who are hung up on racial disproportionality in criminal justice and all of the systems we design to intervene in people's lives from one angle or another. I find it ironic that we have realized it is illegitimate to use race as a proxy for risk in imposing the death penalty, but there is a raging debate in child welfare about whether race is legitimately correlated with higher risk so that we should actually expect disproportionality, or whether racisim in the system itself has a role that we need to be addressing. My friend Donald Bauman, now retired from DFPS, recently provided me with the following abstract of some cutting-edge research he has conducted:

Findings indicate an important interaction between race, income, and risk of maltreatment. First, we found that poverty is associated with higher risk assessment scores. We also found that African American families involved in both substantiated and unsubstantiated cases were assessed by caseworkers as having lower risk than White families. Finally, when controlling for poverty, race is not a significant predictor of substantiated maltreatment. However, when controlling for risk, poverty was not a significant predictor of substantiation, while race did emerge as a significant predictor. This suggests that although income may influence risk assessment, it is not a factor that influences the threshold for the substantiation decision. Rather, the findings suggest that there are racial differences in the risk threshold used by caseworkers in making the substantiation decision. Specifically, the risk threshold for substantiation is higher for Whites than it is for African Americans. One possible explanation for this (as also suggested by Rivaux et al., 2008 regarding the decision to place children in care) is the fundamental attribution error (Ross, 1977), a concept from social psychology that refers to the tendency to undervalue situational explanations for the observed behaviors of others and to overvalue personal explanations, such as traits and attitudes. In the context of the substantiation decision, this would suggest that poverty (a situational factor) is underestimated in favor of race (a personal factor). Thus, although poverty may be an important factor to address when assessing risk, caseworkers may be assessing the risk associated with poverty differentially for poor African American families than for poor White families.

In other words, race matters in that initial decision to intervene in the child abuse and neglect system. In the other camp - though we need to find a way to bring these two views harmoniously together - is the work of Elizabeth Bartholet of Harvard, summarized this June by Chapin Hall at the University of Chicago.

This debate is a huge challenge faced by those of us who work to reduce disproportionality by facing the issue of race and racism head-on.

We believe that the evidence presented at this conference signals that it is time for reconsideration of certain past assumptions and conclusions. It indicates that generally there is a significant black/white maltreatment gap, one that roughly parallels the gap in official maltreatment reports. This evidence contradicts the belief that black children are included at high rates in the child welfare system because of racial bias. This is not to say that the evidence presented removes the possibility of bias. Bias may well exist in pockets of the system, operating in ways that lead black children to be either over- or underserved, and it is present more generally within the larger society. But we find no evidence that initiatives that emphasize reducing the high representation of black children will provide a path to more equitable services.

Task Force on Preservation of Court Records

2011-08-31T11:43:00.000-05:00

As I have previously written, the Supreme Court has created a Task Force on preservation of court records, which has been doing really fine work. The Task Force Report has been issued in anticipation of a September 26, 2011 hearing (2:00-5:00) before the Supreme Court, in the courtroom. The Task Force has also issued the following publications:

District and county clerks in particular are encouraged to review the report and other materials, and the task force chair, Bill Kroger, has asked me to thank them for their help with this project. Clerks are invited to contact Bill with any comments or feedback.

Supreme Court of Texas

2011-08-30T14:43:00.002-05:00

Last Friday the Court made news with a decision upholding the "pole tax" (a fee per patron on strip clubs that serve alcohol), a decision I was glad to see because one beneficiary of this revenue source is basic civil legal services, a chronically underfunded program that is a high priority for people in the business of seeing that justice is provided to the citizens of Texas. That decision came down on a day when the Court released 19 opinions, a very busy summer's work. The Court should be proud, with the start of a new term they carried over just four argued cases from last term, which is the lowest number since at least 1989 (we do not have statistics for causes carried over prior to 1989).

Shared Solutions Summit

2011-08-26T14:41:00.000-05:00

This title refers to the first of what we hope will be many Texas Judicial Council convenings of local leaders in justice administration, to share promising practices, plan collaborative local strategies, analyze data and identify opportunities, and chart a collaborative and economical course for Texas courts. The event is Jan. 8-10, 2012, in Austin, and interested judges should contact me. We still have a few slots open for local teams.

Attendees will be motivated and equipped to launch and sustain local justice system improvements in the context of criminal, child protection, mental health, and self-represented civil cases. They will:

hear, observe and practice three themes, common to all such improvements - leadership, collaboration, and the use of data;
understand the basics of caseflow management as an organizing concept for all court case types, and the benefits and basics of online, automated case processing;
understand criminal justice examples of the use of data to identify problem areas in case processing and outcomes;
have the opportunity to understand and apply data analysis to criminal justice or another of the other three case types;
understand the current availability of a wide variety of cost-saving and performance-enhancing resources;
collaborate and share ideas within and among their local teams;
practice the use of a collaboration tool provided by OCA to sustain their effort and continue the linkages within and across counties.

The summit is open to twenty local teams of 4-6 participants, including a county judge or commissioner, district or county court at law judge, and district or county clerk; other participants, depending on the local focus, could include a district or county attorney, county CIO or administrator, court administrator or coordinator, chief probation officer or pretrial services officer, domestic relations or child welfare staff, CASA, local bar representative, or legal services provider.

Procedural Fairness

2011-08-16T14:59:00.000-05:00

This phrase came to prominence in the court world with the work of Judges Kevin Burke and Steve Leben, as set out in their very worthwhile 2007 "white paper" for the American Judges Association. They use a framework from psychology professor Tom Tyler, who suggests that there are four basic expectations that encompass procedural fairness:

Voice: the ability to participate in the case by expressing their viewpoint;
Neutrality: consistently applied legal principles, unbiased decision makers, and a “transparency” about how decisions are made;
Respectful treatment: individuals are treated with dignity and their rights are obviously protected;
Trustworthy authorities: authorities are benevolent, caring, and sincerely trying to help the litigants—this trust is garnered by listening to individuals and by explaining or justifying decisions that address the litigants’ needs.

The Judicial Branch of California has recently published their own excellent report (written by the Center for Court Innovation) on this subject, with recommendations to make their courts "understandable, accessible, respectful and trustworthy in the eyes of the people who use them." I particularly like the report's emphasis on the myriad of opportunities to demonstrate and "signal that the justice system is capable of meting out fair and impartial justice," and the focus on key venues - traffic, small claims, family, and juvenile, and key users - self represented, limited English, and culturally diverse. I have long been a fan of the work of the California Administrative Office of the Courts, they have unbelievable resources compared to an office like ours in Texas, and very capable senior management; this report is another excellent resource they are sharing with the rest of us.

Courts are Different

2011-08-16T13:22:00.001-05:00

Last week I had the pleasure of accompanying UT School of Law Dean Larry Sager to the Legislative Summit in San Antonio, the big annual conference by the National Conference of State Legislatures. (As readers know, I am very involved with the National Center for State Courts; well, back in "the day" when I was a legislative staffer [late 80s], I was very involved with NCSL, and last week I was very pleased to run into my NCSL mentor, Betty King, Secretary of the Texas Senate for 24 years.)

Dean Sager spoke about the Supreme Court and the litigation over the Health Care Reform Act in the context of our federal constitutional system. Very interesting, but what gratified me most was the background he provided to the audience of legislators, describing a couple of important distinguishing features of courts, in contrast to legislatures. He first pointed out a source of national pride, that most countries in the world have joined with the American concept of a written constitution, interpreted and applied by judges. The powerful and distinguishing feature of courts in our common law system is that they explain the reasons for their decisions, in writing. This exercise entails looking at precedent - the way that similar cases were resolved in the past - and thinking about the precedent being set for the future. This process, and the mental exercise of reaching "reflective equilibrium," or reconciling the judge's general moral principles with their outcome based on specific factual circumstances, have the inherent effect of making judicial decisions more fair. The fact that in principle all litigants can appeal to a scheme of principles rather than to their own political strength has a democratizing effect.

International Law

2011-08-11T16:24:00.002-05:00

Highlighting the work of Chief Justice Jefferson's former law clerk Martha Lackritz, I am pleased to point out a very interesting article she prepared on The Role of International Law in Texas Jurisprudence, which is now posted on our website. The topic is very timely. As Martha points out in the opening paragraph:

The past two decades have witnessed the emergence of a new debate among legal scholars, namely, the propriety of citing international and foreign law in United States courts. The opposing viewpoints have been labeled "nationalist" and "transnationalist," arising largely from a series of cases in the U.S. Supreme Court that invoked international standards to aid in interpretations of the Constitution (accompanied by several denunciatory dissents from Justice Scalia). Generally speaking, nationalists advocate a complete disavowal of the use of international law as even persuasive authority in this country’s courts, while transnationalists embrace international law as an unavoidable component of a global society. Nationalists fear that any citation to international law "undermines self-governance by giving incentives to interest groups, domestic and foreign to frame international and foreign law with a view toward influencing our domestic law." Transnationalists counter that, like early cases from the U.S. Supreme Court, an examination of other countries’ approaches to novel issues, and the resulting consequences, provides practical insight into our own interpretation of similar issues.

And for those who may be concerned about the Texas angle on this topic, the report may be reassuring:

In more recent years, Texas courts tend to address foreign and international law in only three principal situations: (1) when interpreting an international treaty at issue; (2) when responding to death penalty appeals that invoke international human rights law (here, only to a limited extent); and (3) when deciding the choice of forum and the appropriate law to apply. Representative cases in each category demonstrate the way that the courts are directed to invoke foreign and international law.

One reason I was interested is the concern we keeping hearing about Sharia law, such as the discussion in an Adam Liptak piece in the New York Times from 2008, and another very recent article in the Times, which has reported a lot on this topic. The first of these articles mentions a 2003 case in the 2nd (Fort Worth) Court of Appeals in Texas, in which the parties signed an arbitration agreement that said any dispute would be sent to arbitration at the Texas Islamic Court. The COA analyzed the agreement under Texas arbitration law and said the agreement was enforceable. In another case, from 2008, the 14th (Houston) COA looked at an Islamic marriage certificate that a husband and wife had signed. The court analyzed it under Texas family law to determine if it was a valid prenuptual agreement and concluded it was not (because it was signed after the couple was legally married). (My thanks to Heather Holmes, staff attorney to Justice Phil Johnson, for helping me find these cases.) Not surprising results, and not really an avalanche of Sharia law in our courts.

Addendum: Information on Sharia law bans from Gavel to Gavel, National Center for State Courts:
List and chart of 22 states with 49 active bills in 2011

General overview of 2010 efforts

Legislation

2011-08-10T16:49:00.002-05:00

As we do after every session, my office has released a Judicial Council report identifying all of the recently passed bills that affect the courts. It is not exciting reading but it is a really good resource if you are giving a presentation or just need to check on what happened.

Eyewitness Identification

2011-08-01T11:48:00.000-05:00

I am in Atlanta with Chief Justice Jefferson, attending our annual meeting of the Conference of Chief Justices and the Conference of State Court Administrators. On Sunday night I walked to dinner with six colleagues, at a nearby restaurant here in Buckhead, a high-end retail area of town. Returning at about ten, chatting and walking, I noticed that we were passed on the sidewalk by a group of young men. I confess, I noticed they were African-American. The next thing I knew, one man rushed forward and grabbed the purse of one of my colleagues. She resisted mightily, shouted "no," and he pulled a pistol from his waistband. They pulled back and forth, about ten feet in front of me and most of the group. I was transfixed. I studied the gun, watching to see if he was going to point it at anyone, which he never did. I had a fleeting thought of dialing 911 on the phone in my pocket. I was alarmed and felt cowardly when one of my male colleagues rushed forward, and I thought he was going to get shot; he stopped short and nothing happened. I imagined having the gun turned on me. Somehow another female colleague suddenly sat down, I think the same one man tried to grab her purse too and pulled her off balance. But as quickly as it had started, it ended, the gun wielder gave up, said "step off," and began walking quickly away. His three cohorts were left behind, very close to where I was standing, sort of cowering beside a big retail sign; it was almost comical, one raised his hands and said "we don't have guns, we're not with him," as we gathered ourselves and began walking quickly back to the hotel, shaken but unhurt. The women who had been actually assaulted were later interviewed by the police, but I was not. Had I been, my information would have been quite useless, in spite of the singularity and vividness of those few moments. I could not recreate anything more than a generic description of any of the four young men, nor describe their clothes. I think I could've picked out the gun if there was such a thing as a gun lineup, but that is about it. I learned later that my colleagues and I did not even agree on the number of young men.

Courts and Kids

2011-06-24T15:38:00.000-05:00

Back in October I noted the kick-off meeting for the Supreme Court Children's Commission - Education Committee. That group and its many components and staff have been working away at the educational challenges faced by foster kids, and I enjoyed an update on that work today; a lot is happening both in Texas and nationally to improve the way these different systems interact with each other so that the kids can be kept safe, but also receive the education they need and are entitled to. For example, in early November, the federal Department of Education and the Administration for Children and Families are co-hosting an event that will highlight and spur more collaboration between child welfare, education and the courts.
Here in Texas, Chief Justice Jefferson's 2011 State of the Judiciary address has helped keep me focused on issues of juvenile justice. We memorialized his interest in these topics for the 82nd Legislature on a Children's Commission webpage, and I believe it is safe to say that his interest is starting to catch on with other chief justices around the country, as he enjoys the bully pulpit of chairing the Conference of Chief Justices this year.

One result of his interest is an upcoming event that readers will want to note. On the morning of July 19th, Chief Justice Jefferson and Judge Jeanne Meurer will host an event in the Supreme Court Courtroom, the presentation of a massive new report, by the Council of State Governments Justice Center. The report uses data only available in Texas to track the school disciplinary treatment of almost 1 million Texas middle school children, delving deeper into the relationships between suspension, expulsion, and involvement in the juvenile justice system. If you can't attend in person, as with the Court's oral arguments you can view a webcast, courtesy of St. Mary's University School of Law.

The Unrepresented

2011-06-08T15:57:00.000-05:00

The unrepresented, or self represented as we perhaps mis-name them, are a topic of high interest, as previously mentioned. I was recently asked what we know about the volume of people in the courts attempting to handle their own legal problems (which all of us lawyers think is a very bad idea). Here is some of what I learned.

We do not (yet) have good systemic data on the extent of pro se/self represented litigation in Texas, and the National Center for State Courts advises that no one else has it either (which still surprised me, as many states have more consolidated case management systems capable of gathering better data than we get); what NCSC says is “lots of anecdotal evidence but no consistent data.” Richard Zorza, a national consultant on these issues, agrees that the data is chaotic. In lieu of better data, he has previously cited the following information in the 2009 Future Trends in State Courts report that NCSC produces (see http://www.ncsconline.org/WC/Publications/Trends/Archives.html):

It is no surprise that the economic crisis is dramatically impacting both the numbers and proportion of self-represented litigants. In a 2009 survey conducted by the Self-Represented Litigation Network, between 50 and 60 percent of judges reported higher caseloads and a higher percentage of the self-represented as a result of the crisis (with many reporting both). Only 27 percent reported no impact, and many of those were criminal-court judges (see figure below). Some courts and judges are also seeing many more middle-class litigants coming to court without lawyers. Some of these litigants are reported to have higher expectations of how they will be treated and to be more prone to frustration with the situation and how courts are managing it.

Last week a judge estimated that pro se divorces run about 45% of all his divorce filings. I have recent data point from another Texas county that squarely supports this estimate. So, applying that 45% estimate as a statewide assumption for that case type, there were approximately 61,000 pro se divorces in 2010. If you make the same 45% assumption for all other family law matters, add another 112,000 to that. (And by the way, divorces in Texas are declining per capita over the last 20 years, a 7% increase in filings over that time, despite 43% population growth.)

We do have one area of very good statewide data on pro se litigation, in small claims courts, which are pro se by definition. Filings are down some over time, and certainly down per capita. Evictions may be a countervailing trend but we don’t have good data on pro se representation. My counterparts in California advise that 90% of tenants go unrepresented in their courts.

Funding Crisis

2011-05-29T09:00:00.000-05:00

It looks like the state budget will not cover fundamental legal needs identified by the leadership of the Judicial Branch. During session I have refrained from using the blog for commentary on bills, except to explain the many bills that would raise criminal court costs. At this point - apparently too late - I am obliged to at least point out the irony of what has happened.

Basic Civil Legal Services, the fund supporting the bare-bones infrastructure for fundamental legal services, ended up $20 million short. The Indigent Defense Fund, supporting county efforts to provide constitutionally required defense in criminal cases, ended up $8.6 million short. Both programs already dramatically underserve their target populations due to budgetary decisions, including the continued large-scale redirection of revenue generated from the Judicial Branch.

The Legislative Budget Board reports that the Judicial Branch generated $185 million more in revenue (through criminal court costs and civil filing fees, much more the former), than the Legislature appropriated for the Judicial Branch, last biennium. We brought this information to the forefront in the appropriations process, and in an ideal world the response would have been to reallocate funds already generated to meet the critical needs identified by the leadership of the Judicial Branch. In the world we live in, holding our noses, we proposed several ways to raise the additional revenue those critical needs require, and it was only yesterday that we learned that the Legislature ultimately failed to adopt them - a $5 additional cost in criminal cases (added to $98 currently), and a $10 increase in civil filing fees (added to $5 or $10 current fees, depending on case type).

Caselaw suggests that civil fees cannot be redirected to support functions outside the courts, under the Open Courts doctrine. The same result holds true in criminal cases under the Separation of Powers doctrine. For obvious reasons the court system and its individual actors cannot be expected to generate revenue to ensure their own existence. But by the same token, the Legislature must address the mismatch between court revenue generated and, at a minimum, the critical needs identified by our leadership. Having watched the appropriations process closely on both sides during session, I am honestly impressed by the people who are making these difficult decisions. But I am bitterly disappointed and worried about this particular decision.

eFiling Request for Information

2011-04-21T08:29:00.000-05:00

OCA, on behalf of the Judicial Committee on Information Technology, has just released a request for information for a statewide eFiling system. Here is an excerpt and below are links for the interested:

JCIT is, therefore, considering developing a partnership with a company with proven electronic filing experience to construct, deploy, and operate a public facing Internet electronic filing portal that integrates with court automation systems and comports with JCIT’s directives. JCIT is considering seeking a partner that can:
• Provide a robust Electronic Filing Manager that can support multiple, unique jurisdictions and integrate into the courts case management systems (that use the NIEM or OASIS Legal XML standard).
• Comply with national electronic filing standards (ECF) and any extensions required to support the initiative.
• Deploy and support an easy to use Internet-based portal that supports both free-form pleadings and form based filings. This includes ad hoc reporting for the filer to review previous submissions.
• Market the system to courts to increase participation.
• Provide support to users of the system in the form of documentation and help-desk (call center) support.
• Collect and distribute all fees using a PCI compliant method.
• Provide assistance to courts when needed to ensure that eFiling can be reconciled with financial and case management systems.
• Provide other value-added services to users (e.g. Intelligent/Assistive Forms, Public Access to Court Documents, Application Development for Specialized Filer Needs)

Link to the RFI: http://www.courts.state.tx.us/jcit/Efiling/pdf/eFilingRFI.pdf
Link to the page where we’ll post answers to any questions: http://www.courts.state.tx.us/jcit/Efiling/eFilingRFI.asp

Costs on Conviction

2011-03-21T08:54:00.000-05:00

Ted Wood at OCA helps us all make sense of filing fees and court costs; he maintains a body of manuals for clerks on our page of Publications & Forms. Below I am providing his guide to bills that would raise fees upon conviction of various offenses.
Speeding
A typical speeding conviction in municipal court results in $97.10 in mandatory court costs. In justice court the costs are a dollar more. These court costs do not include fines. (The amount of the fine is up to the judge or jury and can range from $1 to $200.)
Seven bills would serve to increase court costs in speeding cases. If all seven pass, court costs will rise $39 to $137.10 in most justice courts and $32 to $129.10 in most municipal courts:
HB 258 $15 increase in “state traffic fine” (actually a court cost) from $30 to $45.
2/3 of revenue to State’s General Fund; 1/3 to State for trauma and emergency medical services.
HB 331 $1 new cost in municipal courts. Money used for interpreter services, mental health and counseling, ADA modifications, attorney fees for indigent defendants, and judicial education.
HB 395 $5 increase in courthouse security fee (from $4 to $9) and municipal court building security fee ($3 to $8). Money used for court security. HB 777, SB 606, HB 904, & SB 1677 are similar.
HB 1261 $1 increase in municipal court technology fund (from $4 to $5).
HB 2344 $2 new cost in justice courts. money directed to county law enforcement technology fund.
SB 607 $7 new cost in counties with at least 100,000 population (except for Harris County which already can assess this cost). Counties choose whether to impose the cost – most probably will. Money stays with county - no limitations on use.
SB 726 $10 new cost in municipal and justice courts (in cases other than parking and pedestrian cases). Money directed to State “Judicial Access and Improvement Account” to support civil legal services for indigents, indigent defense, state court e-filing, and the state law library.
HB 2174 is an alternative to SB 726 that would direct $5 instead of $10 to the same places.

DWI
A typical Class B Misdemeanor DWI charge will set a person back $397.10 for court costs alone. A fine can be as much as $2,000 on top of the court costs. And a defendant must generally pay a “surcharge” of $1,000 per year for three years to keep his or her driver’s license. (Several bills have been filed that would eliminate the surcharges.)
Two bills would add $50 to DWI court costs. If both bills pass, the court costs for a DWI would increase from $397.10 to $447.10.
HB 395 has already been mentioned in the discussion of speeding cases above. The second bill is:
HB 933 $45 new court cost assessed in DWI and certain other intoxication cases. Money retained by county for certified breath alcohol testing program.

Felony Property Offenses (Arson, Burglary, Robbery, Theft)
Current court costs total $214. Any fine assessed is on top of the court costs.
Three bills would add $45 to the court costs for a new total of $259. The three bills include the previously-mentioned HB 395. The two other bills are:
HB 2065 $15 new court cost on property offenses such as arson, robbery, burglary, and theft. Money would be go to both the State and county for pretrial victim- offender mediation programs.
SB 1616 $25 new court cost on all felonies. Money would go to State’s “biological evidence preservation account.”

Drug Offenses
Court costs for a typical felony drug offense already total $294. This does not include the amount of any fine that may be assessed.
There are three bills that would nearly double the amount of the court costs in this type of case. The new court cost total would be $524, a $230 increase.
HB 395 has been discussed previously as has SB 1616.
SB 994 $200 new court cost on any felony drug offense. Money would be directed to the State for general law enforcement purposes.

Compelling Prostitution
Court costs for this offense are already quite high - $484. If four relevant bills pass, that amount will
climb $140 higher to $624, a 29% increase.
HB 395 and SB 1616 have been mentioned before. The following two bills have not yet been
mentioned:
HB 3746 $10 new court cost on crimes for which the defendant is required to register as a sex offender. Money goes to State for deposit in the “Internet Crimes Against Children Fund” which would be used to support the administration of the activities of three existing Internet Crimes Against Children task forces that are operated by the attorney general and other law enforcement entities. SB 1843 does the same thing.
HB 2014 $100 new court cost on offense of compelling prostitution or trafficking of persons. 50% of money would be retained by county for deposit in a “trafficking of persons and compelling prostitution prevention fund”; 50% of money to State for unspecified purposes]

Performance Guidelines for Non-Capital Criminal Defense Representation

2011-03-10T15:29:00.000-06:00

I am happy to serve on the State Bar's Standing Committee on Legal Services to the Poor in Criminal Matters. That committee has developed and just released a digestible but comprehensive guide to criminal practice in Texas state court from the time of initial representation in trial-level proceedings to the exhaustion of direct review before the Court of Criminal Appeals. The guidelines seek to encourage defense attorneys to perform to a high standard of representation and to promote professionalism in the representation of indigent defendants. The committee previously published Guidelines and Standards for Texas Capital Counsel and is on the verge of releasing a brochure for distribution statewide, to provide information to defendants considering representing themselves in misdemeanor criminal cases.

Disproportionality in Texas Systems

2011-01-28T13:52:00.000-06:00

To start off the blogging in 2011, this chart speaks for itself, but a little more explanation. . . Racial disproportionality, specifically the impact of being African-American, pervades the child welfare, school discipline, juvenile justice, and criminal justice systems. For every bad outcome, from having a child removed from the home to being on death row, African Americans are represented significantly more than they are represented in our state population, and the exact reverse is true for Whites.
Data Sources:

• State Population: Estimate of the Population by Age, Sex, and Race/Ethnicity for July 1, 2009 for State of Texas, Texas State Data Center, http://txsdc.utsa.edu/tpepp/2009ASREstimates/alldata.pdf.
• FY 2009 CPS Data: Texas Department of Family and Protective Services, Data Book 2009, http://www.dfps.state.tx.us/About/Data_Books_and_Annual_Reports/2009/default.asp.
• Students Expelled 2008–2009, Mandatory and Discretionary Expulsions 2007–2008: Texas’ School-to-Prison Pipeline: School Expulsion The Path from Lockout to Dropout, Texas Appleseed, 2010, http://www.texasappleseed.net/index.php?option=com_docman&task=doc_download&gid=380&Itemid.
• Juvenile Justice Data: The State of Juvenile Probation Activity in Texas—Calendar Year 2008, http://www.tjpc.state.tx.us/publications/reports/RPTSTAT2008.pdf, published July 2010.
• Prison/State Jail Population: TDCJ On Hand as of August 31, 2009: Texas Department of Criminal Justice, Fiscal Year 2009 Statistical Report, http://www.tdcj.state.tx.us/publications/executive/Statistical_Report_FY09.pdf.
• Felony Revocations: FY 2010 Statewide Felony Revocations to Texas Department of Criminal Justice, data received from Texas Department of Criminal Justice, December 27, 2010.
• Drug Arrests: Arrest Data by Race, 2009 Crime in Texas, http://www.txdps.state.tx.us/administration/crime_records/pages/crimestatistics.htm
• Death Row Offenders: Gender and Racial Statistics of Death Row Offenders, http://www.tdcj.state.tx.us/stat/racial.htm, last updated November 22, 2010.

The Courthouse Square

2010-12-28T14:52:00.000-06:00

This Christmas, as a well-known map freak, I received a cool book by Frank Jacobs, called Strange Maps. (The link is to his blog, not the book.) One of the many interesting pages has a map of the various counties in Texas, with the key showing the typology of the courthouse square in each county. Apparently many courthouse squares follow the "Shelbyville" model of how the buildings and roads are arranged around the square, showing the influence of Tennesseans in particular. I wish I could give you a link to the map, but it is not available online as far as I can tell. It does appear that the map was borrowed from a scholarly text on The Courthouse Square in Texas (Veselka, UT Press), a journal article description of which is excerpted here:

Texas is indeed unique as the only state to retain its public lands on entering the union. This fostered state land policies which encouraged land ownership and the formation of counties and county seats, which once selected led, in turn, to construction of courthouses to house local government. This was facilitated by Anglo-American town plans that were prevalent in Texas and designed specifically to accommodate courthouses. The author examines and analyzes the several types of the courthouse squares derived from Anglo-American planning traditions (Shelbyville, Lancaster, Harrisonburg, and Four-, Two-, and Six-Block Squares), as well as their origins. These square types occur in about three-fourths of Texas' counties. In addition, he examines the remaining one-fourth of Texas town plans that had their origin in Hispanic or other planning traditions (Plaza, Railroad-Influenced, Half- and Quarter-Block, and Irregular Block Squares). These latter types had to be modified to allow location of a courthouse.

In perhaps the most important chapter, Veselka discusses the significant centripetal role of the courthouse square in attracting business activities and public and ceremonial events important to the community. . . .

As I have previously noted, the movement toward e-everything, as described in one of the better COSCA "white papers" (this one from 2005), challenges the centrality of the county courthouse as a place where people still must come together to do their legal business and resolve their disputes.

Technology has also changed the scope of the judiciary’s responsibility to preserve the American tradition of open courts. Now, thanks to the World Wide Web, courts have the opportunity to enhance the public’s ability to meaningfully observe and participate in the judicial process. In this modern age, citizens have the option of going to the courthouse to access court records or documents, or visiting a virtual courthouse where information is available at the click of a mouse. Parties can participate in virtual hearings and meetings, retrieve court records, track the progress of their cases, complete and file complaints and other court documents online, obtain legal information if they are unrepresented, and pay fees and fines via credit card - all without having to leave their homes or businesses.

Equal Justice Under the Law

2010-12-11T07:39:00.000-06:00

This plaque hangs outside the courtroom and clerk's office of the Supreme Court of Texas. As I have written about previously, some remarkable work on racial disproportionality in the child welfare part of our justice system is underway in the Texas health and human services world. Since I last wrote, the Health and Human Services Commission has elevated work that was going on specifically in the child welfare area, to embrace the entire enterprise, with the creation of the Center for the Elimination of Disproportionality and Disparities. One of my goals is to bring that work, which has a growing contingent of child welfare judges on board, into the criminal justice conversation. On January 13 the Judicial Advisory Council to TDCJ-Community Justice Assistance Division will hear a presentation by Joyce James, who is the director of the new Center and the driving force behind this courageous work in Texas.

2010 Annual Report

2010-12-03T09:09:00.000-06:00

This week our amazing judicial information staff completed and posted online the Annual Report for which the Judicial Council and OCA are probably most known. It is the single best source of information on Texas courts, "IMHO." Just one interesting fact in the report, last year only 3 percent of capital convictions resulted in the death penalty, down from a high of 24 percent in 1992.
Check it out.

Courts Respond to Domestic Violence

2010-12-01T17:04:00.001-06:00

Today was the conclusion of the National Leadership Summit on State Court Responses to Domestic Violence, where 38 states sent teams to build collaboration so that courts can do a better job for those they are charged to protect. I feel very good about the plans we have made for Texas, but wanted to share highlights from the address by Professor Sarah Buel, formerly of UT Law School and a hero of the domestic violence movement. She outlined nine simple steps that courts can take to improve conditions for victims of violence:
1. Provide a safe waiting area. One example, Judge Denton in Travis County gave up most of his own office space so a safe area could be created.
2. Provide signage and informational brochures in the waiting area. Examples are available at www.instituteforsafefamilies.org. Safety plan information should be provided with every victim contact; see www.abanet.org/domviol.
3. Train designated DV clerks and court staff.
4. Provide a pre-court briefing for victims and accused batterers so they will know what to expect in the hearing. Travis County uses volunteers for Project Options, and UT has a survivor support network, see www.utexas.edu/ors/dvssn.
5. Seat victim and accused on opposite sides of the courtroom to prevent witness tampering (an area of particular emphasis for Professor Buel).
6. Let the victim leave court 30 minutes before the batterer.
7. Use volunteers for everything - to help the clerks, help probation staff, monitor halls (to watch out for tampering), provide the pre-court briefing, keep brochures supplied, etc.
8. Have court staff participate in a local domestic violence task force.
9. Support a court culture that prioritizes model practices.

Preserving the Record

2010-11-17T09:15:00.000-06:00

Awhile back I pointed out the adoption of a "white paper" on this topic by my national group of court administrators, COSCA. More recently I visited with my good friends who lobby for the state court reporter association, and assured them that by bringing attention to the white paper I was not foreshadowing an effort to promote legislation in their arena. I said that there is just a natural, built-in tension between practitioners of court adminstration and the traditional, one-steno-court-reporter-per-judge model.

More recently, I met a Texas senior district judge, John Delaney from Bryan, who is interested in the use of electronic recording, ER in the following excerpt of some advice he provides to other judges. My apologies to my friends in the court reporting profession, and their representatives, but this is good information for those judges considering their alternatives:

My purpose here is to help you find answers to the questions that occur to judges once they start considering ER. It’s not my purpose to try to convince you to replace a good steno reporter. I strongly believe that every trial judge should have the choice between ER and steno reporting. But sometimes it’s hard to know which choice to make because there is a lot of misinformation around. I will give you the truth as I know it.

How does it work?

There are many questions about how ER actually works in practice in the courtroom. The simplest way to deal with that is to log on the website of The American Association of Electronic Reporters and Transcribers, http://www.aaert.org/, There you will find a comprehensive “Overview” of ER, including excerpts from many of the studies that have proved how successful it’s been.

How do I get the legal authority?

Then there’s the question of how you get the legal authority to use ER in Texas. The answer to that has become fairly easy. All you have to do is ask, by sending a letter and proposed local rules (see below) to the Clerk of the Supreme Court of Texas (and the Court of Criminal Appeals if you also handle criminal cases), and you will receive authority in the form of a “Local Rule” they approve for your court or all the courts in your county.

Who will run the ER system and how do they get trained?

Next is the question of who you will select to use the ER system, and how do they get trained. There are no schools training ER operators in Texas yet. You’ll most likely have to recruit a legal assistant or deputy clerk, someone with good clerical skills. Part of the training will come from the equipment vendors. Part of it will come from studying the “local rule” text below and the TRAP Rules. Some can come from actually doing an on-site visit to one of the courts already using ER (state and federal).

Who does the transcribing?

The next question is “how do I get the testimony transcribed for appeal?” You have two choices: let the “Court Recorder” do it, or send it out to a transcription service. In the digital age you send audio files over the internet, and the transcription can be done anywhere. There are form books and rules to go by. It takes some study to do it according to the format requirements of the appellate courts, but it’s something that a competent person can master.

Are there special rules about using ER?

It’s important to know there are some special rules about ER that appear in our Texas Rules of Appellate Procedure: Rules 13, 34.6, and 38.5 that cover this. As you can see, ER is firmly recognized by our appellate courts.

What kind of equipment should I get, and who will pay for it?

There are several vendors in the market. Some are audio only; one is audio plus video. Almost all equipment is digital (computerized) versus tape these days. It won’t be hard to find a vendor anxious to get your business. The commissioners court will almost certainly fund the purchase when you show them how much money you expect to save in comparison to having a steno reporter.

(Suggested local rule, modify as necessary to apply to criminal proceedings)

RULES GOVERNING THE PROCEDURE FOR MAKING A RECORD OF CIVIL COURT PROCEEDINGS IN ___________________ BY ELECTRONIC AUDIO OR VIDEO RECORDING

1. Application. The following rules govern the procedures in the __________________ in proceedings in civil matters in which a record is made by electronic audio or video recording, and appeals from such proceedings.
2. Duties of Court Recorders. No stenographic record shall be required of any civil proceedings electronically recorded. The court shall designate one or more persons as court recorders, whose duties shall be:
a. Assuring that the recording system is functioning and that a complete, distinct, clear, and transcribable recording is made;
b. Making a detailed, legible log for all proceedings while recording, indexed by time of day, showing the number and style of the proceeding before the court, the correct name of each person speaking, the nature of the proceeding (e.g., voir dire, opening, examination of witnesses, cross-examination, argument, bench conferences, whether in the presence of the jury, etc.), and the offer, admission, or exclusion of all exhibits;
c. Filing with the clerk the original electronic recording including all exhibits;
d. Storing or providing for storing of the electronic audio or video recording to assure its preservation as required by law;
e. Prohibiting or providing for prohibition of access by any person to the original recording without written order of the presiding judge of the court;
f. Preparing or obtaining a certified copy of the original recording of any proceeding, upon full payment of any charge imposed therefor, at the request of any person entitled to such recording, or at the direction of the presiding judge of the court, or at the direction of any appellate judge who is presiding over any matter involving the same proceeding, subject to the laws of this state, rules of procedure, and the instructions of the presiding judge of the court; and
g. Performing such other duties as may be directed by the judge presiding.
3. Reporter’s Record. The reporter’s record on appeal from any proceeding of which an electronic recording has been made shall be labeled to reflect clearly the numbered contents certified by the court recorder to be a clear and accurate copy of the original recording of the entire proceeding. Any exhibits designated by the parties for inclusion in the reporter’s record shall be arranged in numerical order and firmly bound together so far as practicable, together with an index consisting of a brief description identifying each exhibit.
4. Time for Filing. The court recorder shall file the reporter’s record with the court of appeals within fifteen days after the perfection of an appeal. No other filing deadlines as set out in the Texas Rules of Appellate Procedure are changed.
5. Appendix. Each party shall file with his brief an appendix containing a written transcription of all portions of the recorded reporter’s record and a copy of all exhibits relevant to the issues raised on appeal. Transcriptions shall be presumed to be accurate unless objection is made. The form of the appendix and transcription shall conform to any specifications of the Supreme Court.
6. Presumption. The appellate court shall presume that nothing omitted from the transcriptions in the appendices is relevant to any issues raised or to the disposition of the appeal. The appellate court shall have no duty to review any part of an electronic audio or video recording.
7. Supplemental Appendix. The appellate court may direct a party to file a supplemental appendix containing a written transcription of additional portions of the recorded reporter’s record.
8. Paupers. Texas Rule of Appellate Procedure 20.1(j) shall be interpreted to require the court recorder to transcribe or have transcribed the recorded reporter’s record and file it as appellant’s appendix.
9. Accuracy. Any inaccuracies in the transcriptions of the recorded reporter’s record may be corrected by agreement of the parties. Should any dispute arise after the reporter’s record or appendices are filed as to whether an electronic audio or video recording or any transcription of it accurately discloses what occurred in the trial court, the appellate court may resolve the dispute by reviewing the audio or video recording, or submit the matter to the trial court, which shall, after notice to the parties and hearing, settle the dispute and make the reporter’s record or transcription conform to what occurred in the trial court.
10. Costs. The expense of appendices shall be taxed as costs at the rate prescribed by law. The appellate court may disallow the cost of portions of appendices that it considers surplusage or that do not conform to any specifications prescribed by the Supreme Court.
11. Other Provisions. Except to the extent inconsistent with these rules, all other statutes and rules governing the procedures in civil actions shall continue to apply to those proceedings of which a record is made by electronic audio or video recording.

Justice for Veterans

2010-11-11T10:45:00.001-06:00

Today is a state holiday, and I have time to write about why. Ron Castille was a Marine lieutenant in Vietnam, and today is the Chief Justice of the Supreme Court of Pennsylvania. He made the New York Times this morning, in a terrific op-ed that I commend to you, A Special Court for Veterans, on the movement toward veterans courts and statewide efforts to better provide justice for veterans and those who currently serve.

Texas is in the forefront as well, and on several fronts at once. Bar President Terry Tottenham, a former Marine captain, has launched the wildly successful Texas Lawyers for Texas Veterans initiative. It is a state-wide effort to recruit lawyers who will provide pro bono legal services to veterans who cannot afford those services. The initiative has received an overwhelming response from Texas lawyers, with Veterans Clinics operational in Houston, Dallas, San Antonio, El Paso, Fort Worth, Austin, and every other veterans-centric area of Texas. To further assist access to justice for veterans, by order the Supreme Court of Texas has recently amended the Rules Governing Admission to the Bar of Texas to allow Judge Advocates who are not members of the Texas bar to represent soldiers and their dependents in specific instances.

On the legislative side, SB 1940 from last session established veterans court programs in Texas. There was a great article about this in the Texas Tribune back in May, and the implementation of the bill is the subject of a joint interim study by the House Committee on Criminal Jurisprudence and House Committee on Defense and Veterans' Affairs, which are also charged to examine the link between combat stress disorders of war veterans, including post-traumatic stress disorder and traumatic brain injury, and the onset of criminal behavior. They had a very compelling hearing on July 13 with testimony from judges (and veterans) Brent Carr and Michael Snipes. Bexar, Dallas, El Paso, Harris, Tarrant and Travis counties all have veterans courts, and Smith County is close. So courts have been implemented in the major jurisdictions in Texas, but from the testimony in the hearing it seems safe to say that obstacles, such as adequate resources and local collaboration, remain.

We can do more. For starters, why aren't holidays like Veterans Day an occasion for public service rather than a mandatory state holiday? And on the court administration side, we must do more. We can better collaborate at the state level to ensure that all the agencies and stakeholders seeking to expand these services are working together. And on the court technology front - never far from my mind - it seems to me that ensuring access to courts for veterans and service people overseas is one of the most compelling reasons that we need to achieve the capability for universal eFiling in any Texas court, for any case type.

Courthouse Design

2010-11-10T16:50:00.000-06:00

The rule of law and courthouses are the cornerstone of our democracy. The National Center for State Courts has recently published the third edition of Retrospective of Courthouse Design 2001-2010, describing noteworthy federal and state projects across the country and a few from overseas. 96 projects are published in the volume, 94 are courthouses, plus a judicial training center in New York and a statewide IT center for the Arizona Supreme Court - I am jealous. There are some beautiful and highly functional facilities featured, including the Ohio Judicial Center in my home town, Columbus, which I have heard is fabulous from several people, and the Brooklyn Supreme and Family Courthouse, which is notable as a public-private partnership with 180,000 square feet of speculative office space included.

In an introductory article, my friend Marcus W. Reinkensmeyer makes a point that I have been wondering about lately. He contrasts the emergence of the virtual courthouse - the rapid evolution of 24/7 access to case information and court services in many places - with the need for physical facilities where humans can come together, concluding: "Courts mus plan and budget for not only a large investment in sustainable and scalable technology infrastructure to support remote court services, but physical justice centers that are co-located with trial courts for one-stop resolution of stakeholder-intensive cases (e.g., family, juvenile, criminal, and mental health cases.)"

Prison Population

2010-11-09T09:49:00.000-06:00

Mike Ward's article in the Statesman this morning, about the budget crisis and whether treatment and rehab programs will stay funded, prompts me to chime in, as I did in the CourTex newsletter back in 2007:

The state’s continuing ability to match capacity with demand currently depends largely on the parole board’s release and revocation practices. The options for addressing population pressure, short of new commitments to capacity, would appear to be: attempt to affect parole approval and revocation rates; affect sentence lengths and release laws through legislation; reduce penalties or judicial discretion directly through legislation; dramatically increase funding for alternatives and hope for minimal “net widening”; or adopt a sentencing commission/guidelines model that was implicitly rejected in 1993. These choices are timely this session, but longer term they are cyclical and incessant. To meet this continuing challenge, and consistent with much that is happening and recommended around the country, Texas policymakers should develop a more consistent focus on sentencing policy and data collection, in some form.

As Ward reports today, the legislature responded in 2007 by funding alternatives to revocation of probation parole; more detail can be found in a report from Tony Fabelo and the CSG Justice Center in 2009:

In 2007, the legislature rejected plans to spend $523 million in additional prison construction and operations and instead, through its Justice Reinvestment Initiative, appropriated $241 million to expand the capacity of substance abuse, mental health, and intermediate sanction facilities and programs that focused on people under supervision who would otherwise likely be revoked to prison.

The piece that continues to be missing is what we had in 1993 and have not had since: reliable, case-level data on what is happening at the front end of the state criminal justice system:

A critical companion to our [1993] work was the parallel effort by the Criminal Justice Policy Council to develop meaningful, case-level information about actual sentences in Texas. This was a first in modern times, and has not been replicated since 1993. The PSC’s work was thus uniquely informed by current, powerful information that everyone agreed was valid[.]

I am very pleased that Tony Fabelo has found a way to spread his inimitable work around the country (helping states like Indiana with incaraceration rates that are only two-thirds of the rate that Texas has achieved, so that our "equilibrium" is a more expensive one than many other states could achieve). And, no offense to my friends at the LBB who now handle projections of the prison population for purposes of informing the budget debate. But, I continue to be convinced that rational analysis of the policy alternatives will ultimately require consistent and reliable data collection on the sentence, offense, criminal history, and a few other salient characteristics, of felony cases across the state.

Capitol Polish

2010-11-02T11:37:00.002-05:00

I will be glad when the work on the capitol's exterior is finished. It looks, from the shine under the scaffolding, like it will be worth the wait. Here is the view from the bike this morning, and a link to a story about the restoration work: http://www.kxan.com/dpp/news/texas/capitol-dome-being-restored

4th National Symposium on Court Management

2010-10-27T10:12:00.000-05:00

Chief Justice Jefferson and I, along with Chief Justice Sherry Radack from the 1st Court of Appeals, Bob Wessels from Harris County, and David Slayton from Lubbock, are attending this symposium today and tomorrow in Williamsburg, sponsored by the State Justice Institute and the Bureau of Justice Assistance, and hosted by the National Center for State Courts. The topic is state court governance and organization, and we are discussing a set of ten principles of court system governance articulated by the leadership of the Utah state courts, Chief Justice Christine Durham and AOC Director Dan Becker:
1. A well-defined governance structure for policy formulation and administration for the entire court system.
2. Meaningful input from all court levels into the decision-making process.
3. A system that speaks with a single voice.
4. Selection of judicial leadership based on competency, not seniority or rotation.
5. Commitment to transparency and accountability.
6. Authority to allocate resources and spend appropriated funds independent of the legislative and executive branches.
7. A focus on policy level issues; delegation with clarity to administrative staff; and a commitment to evaluation.
8. Open communication on decisions and how they are reached.
9. Positive institutional relationships that foster trust among other branches and constituencies.
10. Clearly established relationships among the governing entity, presiding judges, court administrators, boards of judges, and court committees.

Utah has a very centralized court system that nicely dovetails with these principles. Query how well the highly decentralized Texas system can reflect such principles.

Self-Represented Litigants

2010-10-25T11:09:00.000-05:00

As I have previously discussed, more than once, my office is working on a statewide collaboration to advance access to justice for self-represented litigants, and ameliorate their impact on court staff and judges. The statewide work reflects the fact that local court staff and judges, legal service providers and bar associations have been improving their services in this arena for some time; we are just catching up and hoping to provide added value through coordination and spreading promising practices. Here is, no doubt a partial listing of all that is in place that we know of, let me know if you have additions or enhancements (such as web links) for this compilation.

Existing Programs and Resources

Self-Help Centers

1. Travis County Self-Help Center – Provides assistance in simple, uncontested family law cases. Provides free forms and free reference attorney appointments.
2. Smith County Self-Help Center – Partnership between County Law Library and local bar. Provides assistance with forms and court processes.
3. Harris County Courthouse Information Booth – Gives SRLs information about their pleadings and court processes. Operated by Houston Volunteer Lawyers Program.
4. Nacogdoches County – Touch-screen Self-Help Kiosk – Provides assistance with creating pleadings and orders. Staffed by LSLA attorney.
5. Fort Bend County – Provides self-help centers in libraries.
6. Lutheran Ministries and Social Services of Waco, Legal Assistance Project – Gets referrals from district and county clerks. Helps with forms and court processes.
7. Hidalgo County Self Help Kiosk – Provides a computer that connects SRLs to www.texaslawhelp.org and a printer.

Assisted Pro Se Programs
1. Dallas Volunteer Attorneys Program – Sponsors four Assisted Divorce Clinics per month. Uses volunteer attorneys to help low-income clients with uncontested family law cases.
2. Texas Legal Services Center: Self Represented Litigants Project – Operates a live chat service on TexasLawHelp.org to provide information, resources, and on a case by case basis legal advice to self-represented litigants. Also, developing an informative video in cooperation with the Lubbock County Bar Association to provide guidance to the legal system for self-represented litigants.
3. Texas Advocacy Project, Assisted Pro Se Program – Provides individualized legal assistance in simple family law matters to victims of domestic violence. Includes recent installation of videoconferencing equipment in Montgomery County law library for meetings between clients in county and attorneys in Austin.
4. Volunteer Legal Services of Central Texas, Assisted Pro Se Project – Available to clients with uncontested cases.
5. Bell County Assisted Pro Se Program
6. Court Order Parenting Education Project (OAG, LSLA, TEAJF) – Recent pilot project involving clinics attended by litigants prior to hearings in divorce cases.
7. Nacogdoches County Help Desk – Provides assistance to financially-eligible SRLs two days each week at the Nacogdoches Public Library. Staffed by LSLA attorneys.

Limited Scope Representation
1. Lawyer Referral of Central Texas – Recently started limited scope representation program for family law cases.
2. Texas Legal Services Center: Parenting Order Legal Clinic (POLC) – Provides limited scope representation to non-custodial parents in matters involving their parenting orders. Take referrals from LANWT.

Forms
1. Protective Order Kit in English and Spanish – Currently, the only forms approved by the Supreme Court of Texas.
2. Texas Legal Services Center: Self-Represented Litigants Project – Automated forms. Making fill-in-the-blank forms and instructions available in user friendly format. Forms are posted on http://www.texaslawhelp.org/. Petition and Decree in uncontested divorce without children are available for use, and other forms are in development.
3. Others – e.g., Bell County District Clerk’s divorce website; Williamson County Justice of the Peace, Precinct 1 website, Collin County Law Library website.

Other Resources
1. TexasLawHelp.org
2. Legal Information vs. Legal Advice: Guidelines and Instructions for Clerks and Court Personnel Who Work with Self-Represented Litigants in Texas State Courts – On OCA website, http://www.courts.state.tx.us/pubs/LegalInformationVSLegalAdviceGuidelines.pdf.
3. Texas SRL Listserv for Court System Stakeholders – Membership is free, but the site requires registration: www.texaslawyershelp.org/civil_law/groups/.
4. SelfHelpSupport.org – A national website with a clearinghouse of information for judges, clerks, administrators, etc. on working with SRLs. Membership is free, but the site requires registration.
5. Supplemental Instructions for Self-Represented Litigants completing new Civil Case Information Sheet – Contains a glossary to explain terms used on Civil Case Information Sheet, which must accompany the filing of an original petition in a civil case and certain post-judgment petitions and motions. Available on OCA’s website: http://www.courts.state.tx.us/tjc/pdf/SupplementalInstructionsForSRLs.pdf.
6. Texas Access to Justice Commission’s Pro Se Information page: http://www.texasatj.org/SRL.

Projects under development
Lubbock County – (1) automated document assembly; (2) informational video; (3) limited scope representation program.
Montgomery County – Self-help center.
Angelina County – (1) Touch-screen Self-Help Kiosk – Provides assistance with creating pleadings and orders. (2) SRL Help Desk two days per week, staffed by LSLA attorney.
Travis County SRL Work Group – Processes related to orders in family law cases.
Hays County SRL Work Group – Organizing.
Williamson County – Just starting to consider whether they want to implement any programs.

Mastering the Unpredictable

2010-10-13T15:51:00.002-05:00

This is the title of a new (2010) book I've been reading, checked out from the library of the National Center for State Courts, which I'd never done before. Subtitled "How Adaptive Case Management Will Revolutionize the Way that Knowledge Workers Get Things Done," it is by Keith D. Swenson, with a number of other contributors, all from companies like Fujitsu America, Cordys, Singularity, ISIS Papyrus Group, Handysoft, Global 360, and ActionBase. One other (non profit sector) contributor is John T. Matthias, who works for NCSC, and authored the chapter entitled Technology for Case Management, which describes the evolution of court case management systems and would be good background reading for a number of people I know. (He actually cites an OCA work product, our detailed functional requirements for developing child protection court case management systems, which I commend to you. His point was that systems need to manage data in both "case-centric" and "people-centric" ways, and as an example, that we identified 21 different roles for people in child protection cases - mother, child, alleged father, CASA, caseworker, attorney, etc. - and 17 different possible relationships between people - child/parent, attorney/client, etc.)

But that subtitle caught my eye and is the reason I'm reading this book. I want to understand this whole arena much better than I do, ponder the implications for a new generation of court case management, and imagine the ultimate "adaptive case management" (ACM) system for my own "knowledge work." As Swenson states in the Introduction, ACM means "Systems that are able to support decision making and data capture while providing the freedom for knowledge workers to apply their own understanding and subject matter expertise to respond to unique or changing circumstances within the business environment."

To give you a little more feel for where they are headed, in Chapter 5, Max Pucher proposes (p. 97) to define ACM as involving three paradigm shifts:

ACM is a productive system that deploys the organization and process structure from defined architecture that through back-end interfaces becomes the system of record for the business data entities and content involved. All processes are completely transparent, as per access authorization, and fully auditable.
ACM enables nontechnical business users in virtual organizations to seamlessly create/consolidate structured and unstructured processes from base predefined business entities, GUI components, content, social interactions, and business rules.
ACM moves the knowledge-gathering process in the lifecycle from the template analysis phase to the process execution phase. The ACM system collects actionable knowledge-without an intermediate analysis phase-based on process patterns created by business users.

This reading is at the outer limit of my non-technical background, and not easy going, but I am learning.

In response to Keith's comment below, I did not finish the book, it was over my head in many places. I did enjoy several chapters and parts of chapters, and I know at least one of the developers in our office, Ron Clark, purchased the book and liked it. I will be interested to look at Taming the Unpredictable, thanks for writing and for letting me know. What I really need is some case studies of knowledge workers actually using these newer systems, something concrete.

Teach the Children Well

2010-10-08T12:24:00.003-05:00

Children and youth in foster care are, unfortunately, a highly mobile population. Their movement from placement to placement is typically mirrored by movement from school to school, with records lagging behind them and academic achievement stunted at every step. The end up at high risk for school discipline, dropping out, juvenile and criminal justice involvement, homelessness, and other grim outcomes. Current research reveals that a large proportion of young people in foster care are in educational crises. States clearly need to do more.

Last week was the kick-off meeting of the Education Committee of our Supreme Court Children's Commission, the Permanent Judicial Committee for Children, Youth and Families. Created by order of the Supreme Court, the committee is chaired by Judge Patricia Macias of El Paso, has great representation from the Texas judiciary, education world, and child welfare world, has support from the ABA Legal Center for Foster Care and Education, and a charge to do the following (among several mandates):

Identify and assess challenges to educational success of children and youth in the Texas foster care system;
Identify and recommend judicial practices to help achieve better educational outcomes for children and youth in foster care; [and]
Seek to improve collaboration, communication, and court practice through partnerships with the Department of Family and Protective Services, the Texas education system, and stakeholders in the education and child-protection community.

The committee reached consensus to focus on the following nine goals:

Children and youth in care are entitled to remain in the same school when feasible.
Children and youth in care are guaranteed seamless transitions between schools.
Young children in care (0-5 years) receive services and interventions to be ready to learn.
Children and youth in care have the opportunity and support to fully participate in all developmentally appropriate activities and all aspects of the education experience.
Children and youth in care have supports to prevent school dropout, truancy, and disciplinary actions and re-engage in the education experience.
Children and youth in care are involved and empowered in all aspects of their education.
Youth in care are prepared to self advocate in all aspects of their education.
Children and youth in care have consistent adult support to advocate for and make education decisions.
Children and youth in care have support to enter into and complete post-secondary education.

These goals will look familiar to anyone with background in this area and exposure to the Center's Blueprint for Change, a remarkable report that I commend to your attention. I hope to report more on this compelling topic, as it develops.

Justice in Numbers

2010-09-24T07:56:00.001-05:00

I am privileged this week to be attending an international conference by this name, held in Brasilia, Brazil. It is hosted by the National Council of Justice, an entity created under the Brazilian Constitution in 2004, with administrative, financial and disciplinary roles and jurisdiction over all courts except the Federal Supreme Court. The President (Chief Justice) of the Federal Supreme Court, Cezar Peluso, is also the President of the National Council of Justice. (Interestingly, Brazil has two special central courts, the aforementioned FSC, which has jurisdiction over constitutional cases, and the Superior Court of Justice, which is the court of last resort in non-constitutional matters. My friend Antonio Benjamin, who teaches part-time at UT Law School, is a minister on the latter court.)

The occasion for the event is the release of "Justice in Numbers 2009," the flagship product of the National Judiciary Statistics System. One important finding is that approximately one third of the 86.6 million cases in the Brazilian courts are fiscal enforcement proceedings, contributing greatly to a backlog. Apparently many of these cases, maybe all, I am not quite sure, are prosecuted by the executive branch, so this is an area where collaboration across branches of government - a common theme in our work in the US - seems critical for the Brazilian courts.

Also at the conference is Mary McQueen, President of the (US) National Center for State Courts, who invited me to attend with her. We are encouraging Brazil - and they appear very receptive - to become involved with the International Framework for Court Excellence, a broad international agreement regarding core court values such as impartiality and transparency. This has been a wonderful opportunity to share information across national boundaries, on the use of data in judicial administration, and we are excited at the prospect of future engagement with the leadership of the courts of Brazil.

Office of Capital Writs

2010-09-16T09:19:00.000-05:00

As I described in April, my office has been very involved in starting up the Office of Capital Writs created by SB 1091 last session, to represent condemned defendants in state habeas corpus proceedings under Art. 11.071, Code of Criminal Procedure. Director Brad Levenson has been appointed and is in Austin setting up the new agency. Judges are required by 11.071 to appoint the OCW to represent defendants sentenced to death on or after September 1, 2010 (unless OCW declines or is prohibited from representing, such as a conflict of interest because they represent another defendant in the same incident). We are working with OCW to create a webpage, and the office will have telephone service soon, at 512.463.8502. In the meantime those needing to contact Mr. Levenson may email to brad.levenson@ocw.texas.gov.

Multi-County District Courts

2010-09-02T12:39:00.002-05:00

Texas has 454 district courts, and outside of the cities, 96 of the district judges serve in multiple counties. For example, Judge Camile DuBose presides in the 38th Judicial District in Uvalde, Real and Medina counties and Judge Barbara Walther presides in the 51st Judicial District in Tom Green, Schliecher, Irion, Sterling, and Coke counties. One problem for such judges is that many of their counties have siloed case management systems that do not communicate across county lines, and it is difficult to keep all their multi-county calendars in order.

Judge DuBose's court coordinator, Lela Ballesteros, came up with a nifty way to help her keep her scheduled and accessible. She opened up a yahoo calendar, which has since become a google calendar, which allows the attorneys in the 38th district to schedule time on Judge DuBose's docket, when she will be in their county. Simple and free, here is Judge DuBose's calendar.

New Media and the Courts

2010-08-26T12:45:00.001-05:00

The Conference of Court Public Information Officers (CCPIO) just released the results of a year-long study on the effects of new media on the courts, including an extensive survey. The full report is available on the website of CCPIO, http://www.ccpio.org/. I am just starting to look over it but I thing it looks very interesting for readers in the court community and beyond.

Court Interpreters III

2010-08-17T12:33:00.001-05:00

On August 16, the Department of Justice issued a letter to all chief justices and state court administrators. A lengthy excerpt:

Language services expenses should be treated as a basic and essential operating expense, not as an ancillary cost. Court systems have many operating expenses -judges and staff, buildings, utilities, security, filing, data and records systems, insurance, research, and printing costs, to name a few. Court systems in every part of the country serve populations of LEP individuals and most jurisdictions, if not all, have encountered substantial increases in the number of LEP parties and witnesses and the diversity of languages they speak. Budgeting adequate funds to ensure language access is fundamental to the business of the courts.

We recognize that most state and local courts are struggling with unusual budgetary constraints that have slowed the pace of progress in this area. The DOJ Guidance acknowledges that recipients can consider the costs of the services and the resources available to the court as part of the determination of what language assistance is reasonably required in order to provide meaningful LEP access. See id. at 41,460. Fiscal pressures, however, do not provide an exemption from civil rights requirements. In considering a system's compliance with language access standards in light oflimited resources, DOJ will consider all of the facts and circumstances of a particular court system. Factors to review may include, but are not limited to, the following:

• The extent to which current language access deficiencies reflect the impact of the fiscal crisis as demonstrated by previous success in providing meaningful access;

• The extent to which other essential court operations are being restricted or defunded;

• The extent to which the court system has secured additional revenues from fees, fine s, grants, or other sources, and has increased efficiency through collaboration, technology, or other means;

• Whether the court system has adopted an implementation plan to move promptly towards full compliance; and

• The nature and significance of the adverse impact on LEP persons affected by the existing language access deficiencies.

DOJ acknowledges that it takes time to create systems that ensure competent interpretation in all court proceedings and to build a qualified interpreter corps. Yet nearly a decade has passed since the issuance of Executive Order 13166 and publication of initial general guidance clarifYing language access requirements for recipients. Reasonable efforts by now should have resulted in significant and continuing improvements for all recipients. With this passage of time, the need to show progress in providing all LEP persons with meaningful access has increased. DOJ expects that courts that have done well will continue to make progress toward full compliance in policy and practice. At the same time, we expect that court recipients that are furthest behind will take significant steps in order to move promptly toward compliance.

Included with the letter were the following links:

Executive Order 13166 Tips and Tools Document

Maine Court Rule and Memorandum of Agreement

Future Trends in State Courts 2010

2010-08-05T16:31:00.000-05:00

As I noted last year, I always spend time with the latest "Future Trends" publication by the National Center for State Courts. This year the articles are particularly interesting, dealing with budgetary constraints and reengineering the courts. You can see the full report of Future Trends in State Courts, but it is a big document to download. I recommend you browse the individual articles located on the Trends Index page.

The Next Generation II

2010-07-30T07:09:00.000-05:00

As I wrote in April, those involved with the courts are very concerned about the widespread lack of knowledge and appreciation for our system of government and the rule of law. (E.g., a large majority of Americans can't name the three branches of government, much less understand what they each do, and many high school seniors can't pass the test that applicants for citizenship must pass.)
Well, I just learned what retired Supreme Court Justice Sandra Day O'Conner is doing about it. She has started an organization that creates really fun and educational computer games, and is spreading it throughout schools in our country. Originally branded as OurCourts.org, they have expanded the games to cover the other branches of government, under the banner http://www.icivics.org/. I just sent an email to my 11-year old to ask him to check it out. If you know a young person you should do the same, and if you are interested in helping further this cause let me know, I am touch with the volunteers in Texas who are taking on this cause in our schools.

Race and Disproportionality

2010-07-26T09:25:00.000-05:00

Reading the NYT Week in Review article on Race, perhaps I should be reticent about engaging in this topic. But, it is important, and it isn't all just hand-wringing.

The Texas Department of Family and Protective Services, in partnership with Casey Family Programs, has done some remarkable, ground-breaking work on the issue of disproportionality in the child welfare (child abuse and neglect) system. Check out the DFPS website on this topic, where I got this:

Data from 2007 shows African-American children in Texas were almost twice as likely as Anglo or Hispanic children to be reported as victims of child abuse or neglect. Even after adjusting for this higher number of reports the number of substantiated reports of abuse and neglect involving African-American children was also disproportionately high. So was the number of African American children removed from their families. Even when other factors are taken into account African American children spend significantly more time in foster care or other substitute care, are less likely to be reunified with their families, and wait longer for adoption than Anglo or Hispanic children.

I heard more about national work in this area at the recent conference of the National Council of Juvenile and Family Court Judges, under the program banner "Courts Catalyzing Change: Achieving Equity and Fairness in Foster Care Initiative (CCC)", funded by Casey Family Programs and supported by the U.S. Department of Justice, Office of Juvenile Justice and Delinquency Prevention (OJJDP), brings together judicial officers and other systems’ experts to set a national agenda for court-based training, research, and reform initiatives to reduce the disproportionate representation of children of color in dependency court systems.

As is commonly understood, the criminal justice system has parallel issues, perhaps in even starker statistical terms. The last time I checked, African-Americans were about 11.5% of Texans, and about 48% of the prison population. I hope to develop this angle further.

Attention Jury Managers

2010-07-23T09:03:00.000-05:00

There is a new online diagnostic tool designed to help state court administrators and jury managers evaluate and improve jury management operations and procedures, just released from the National Center for State Courts - Center for Jury Studies. It is called Jury Managers Toolbox, check it out. Use of the Jury Managers’ Toolbox is restricted to court administrators, clerks of court, jury managers, and other administrative staff of state and local courts in the United States.

Process Server Certification

2010-07-15T17:40:00.000-05:00

In 2005, shortly after I came into this role, the Supreme Court of Texas advised me that they had approved amendments to Rules 103 and 536(a) of the Texas Rules of Civil Procedure, effective July 1, 2005, governing statewide certification of process servers. The Court also issued a companion order to establish the framework for certification of those approved to serve process under the revised rules, creating a Process Server Review Board, and ordering my office to provide "clerical support" to the new board. Later the Court adopted Rule 14, Rules of Judicial Administration, to formalize the governance of this program.

Recent reports of systemic problems of service of process in New York and elsewhere have reinforced to me the value of having some regulation around the statewide service of process. The Federal Trade Commission just released a new report entitled "Repairing a Broken System: Protecting Consumers in Debt Collection Litigation and Arbitration," which highlights the anecdotal information available (pp. 8-9, footnotes omitted):

Although no empirical data were presented or submitted, panelists from throughout the country estimated that sixty percent to ninety-five percent of consumer debt collection lawsuits result in defaults, with most panelists indicating that the rate in their jurisdictions was close to ninety percent. . . .

Roundtable participants differed as to whether inadequate or improper service is prevalent. Many consumer advocates and judges who adjudicate debt collection cases stated that inadequate or improper service occurs frequently. One local official reported that her agency’s comprehensive investigation of process servers in New York City revealed that “many are not performing service. They are filling out false affidavits of service. They are not going to the addresses. They are not sufficiently checking the addresses." A Chicago judge explained similarly that one of his colleagues had conducted a “spot audit” of one process server and found that he “claimed to be in areas thirty miles apart in the Chicago-land area within minutes . . . . And we [asked,] ‘Is he Superman?’”

So I think the Supreme Court of Texas was prescient in taking on some minimal qualifications check for people who will be permitted to serve process for courts throughout Texas. But not all are fans; there seems to be one or two citizens out there in particular who have complained to the legislature, filed a federal lawsuit (which was dismissed), complained to the State Auditor, and who knows what else, about the very existence of the PSRB. Meanwhile, the number of process servers in the program has gone from 1,200 grandfathered in 2005, to 5,300 this month. Clearly there are people who want to do this work, and equally clear, we need to know and approve of who they are.

Automated Registry

2010-07-14T17:00:00.000-05:00

Are you a judge hearing criminal cases, or do you work for such a judge? If so you need to check out the Automated Registry (AR), a secure browser-based system provided by OCA, that allows authorized individuals to submit a query for a person appearing before the court. The query is submitted to multiple state agency databases and all results are returned to the AR system in real-time. The user is able to view the results in a consolidated format, and is accessing great data: information related to state and national criminal history, state and national warrants, concealed handgun licenses, citizenship status, state and national driver’s history, vehicle registration, sex offender alerts, probation violators, protection order status, and threat to law enforcement alerts; information on probation, parole, and incarceration for an individual (Texas only); and information about an individual who has had mental health care services provided by the State of Texas mental health system.

There is no cost to gain access to the AR system. However, each user must have a computer that is connected to the internet, and a security token (which we provide). Users will need to complete an AR User Agreement and submit the signed agreement to OCA for approval. Once the user’s request has been approved, OCA will provide the user with a security token, AR user-id and AR password. Non-judge users requesting access to DPS and TDCJ data will need a criminal background check performed. All users accessing the DPS data will be required to take a TCIC (Texas Crime Information Center) Certification class, if not already TCIC certified.

Interested? Check out the website and call Thomas Sullivan at (512) 463-8109 or Jeannette McGowan at (512) 936-1806.

State Jails Redux

2010-07-10T17:14:00.000-05:00

I have been following with interest the suggestion by House Corrections Committee Chairman McReynolds that the state jail concept be reconsidered, as reported in Grits and the Statesman. If Chairman Whitmire and District Attorney Bradley were the architects of the system, I was the contractor, as the director of the Punishment Standards Commission, which identified the 4th degree felonies that became state jail felonies and proposed a more community-focused system for those offenders; and then as the general counsel for the Board of Criminal Justice when the state jails were implemented. (And by the way, in the 1993 session John Bradley had been hired by me as the prosecutor consultant to the commission, my recall is it was later that he became a consultant to Sen. Whitmire's committee directly.) Not to say that I scooped everyone, because these issues are not new, but this is from 2007 in the newsletter version of CourTex:

[A] correctional agency has an inherent interest in maintaining some otherwise unpopular features in state sentencing laws - good conduct time and parole - that provide "back end discretion," and therefore some behavioral incentive during incarceration. This is the enduring lesson of the state jail sentencing scheme, which does not provide any such incentive, and has proved challenging to implement as a result. Other problems with the state jail innovation were (and remain): inadequate funding for rehabilitation of the low-level offenders targeted; prison-like state jails rather than smaller, community based facilities; and minimal judicial use of the ability to review an offender's progress in custody.

So I think this is a healthy debate to have, and I basically agree with today's Statesman editorial, "fine tune and fund, don't scrap." The key commitment that was made in 1993 was to achieve dramatically more "truth in sentencing" for violent offenders, enabled by facility construction and the diversion of the state jail population to state jails. The other key component that was at least partially achieved was the location of some of the state jails in greater proximity to the communities of origin. It may be significant to note that the two large jurisdictions that utilize state jails to a greater extent than their population or prison admissions would suggest (see bar chart below), are Harris County and Travis County. Harris has Kegans and Lychner state jails, and Travis has the Travis state jail. (It is ironic that Harris County testimony about the limitations of the state jail system triggered this debate, with their very high utilization.)

If the debate is to continue, I suggest the legislature focus on the problems to be addressed and not on whether the system should be abandoned. Certainly the identification of the state jail category of felonies was significant and should not be undone, but must the punishment scheme be set in stone? Perhaps some form of incentive for behavior can be built in, to replace the judicial option that no judges use, and allow a state jail felon some ability to accelerate his release. Perhaps there should be a short period of supervision at the end of the state jail term. Perhaps we should revisit the idea of isolating all state jail felons in their own facilities, as though they will be infected by felons convicted of higher degree offenses. Perhaps we should revisit the state governance of facilities that were originally conceived as "community corrections." And undoubtedly, there should be additional resources to support successful reintegration.

John R. Justice Student Loan Repayment Program

2010-07-06T12:33:00.001-05:00

As you may know the John R. Justice Student Loan Repayment Program (JRJ) will provide 10 million dollars in loan repayment assistance to state and federal public defenders and state prosecutors who agree to remain employed as public defenders and prosecutors for at least three years. JRJ will be administered by Governor-designated state agencies that must register and apply July 27, 2010. Funds will be available to states based on the total population of each state with a minimum base allocation of $100,000. It is important that you work to ensure that your governor designates a state agency in advance of the deadline. For more information and application forms visit BJA's website.

Last week the Governor designated the Texas Higher Education Coordinating Board to administer the John R. Justice Program (a student loan repayment program) in Texas. Texas is eligible for a $700,000 grant to be split evenly between the Texas prosecutors and public defenders. Our office, specifically the Task Force on Indigent Defense, met with representatives from the Texas District & County Attorney Associations and the Coordinating Board to develop the criteria and plan for the administration of this loan forgiveness program. The application is due on July 27th.

Independence Day

2010-07-05T12:33:00.000-05:00

I am among the 90% of those in my age bracket - let's leave it at that - who are at least very proud, maybe even extremely proud, to be an American, according to a recent Pew survey of patriotism. Most of us are pretty darn proud - those two categories make up 83% of Americans overall - but this catches my attention:

Most people (59%) say they are about as patriotic as others. Just a third (33%) claim to be more patriotic than most other Americans. Notably, those who take a particularly dim view of the federal government - including those who agree with the Tea Party movement - are among the most likely to consider themselves more patriotic than most people in this country.

In the mode of 4th of July ruminations, and as someone who works for and believes in the potential of the government, I find myself a little troubled by the upsurge in being down on it. I make a plea for the recognition that there are good, earnest people working throughout government, for the public's benefit, and in particular for appreciation of the weakest branch of government.

As I pointed out in April, those in the judicial branch already fear that our reverence for the rule of law (and the safety and prosperity it enables) may not transcend the generations. In times of budget stress particularly, we have more prosaic concerns with routine threats to our resources and ability to provide strong courts, access to judice, a fair and impartial system, and so on. As Alexander Hamilton put it in Federalist No. 78, the judiciary "will always be the least dangerous [department] to the political rights of the constitution" and "is in continual jeopardy of being overpowered, awed, or influenced by its coordinate branches . . . . "

So for Independence Day, or at least the work week right after it, thank your court system for being there. We are thankful to have meaningful work providing for the administration of justice.

Gender of Judges

2010-06-30T16:33:00.001-05:00

One the great perks of this job is the opportunity to get to know the very impressive Chief Justices of many other states. I was pleased to see some faces I recognize on the cover of the July 2010 ABA Journal, in an article called "Tipping the Scales," about the gender diversity of high courts in the south:

"Nine of the 13 state supreme courts in the South have multiple women as justices, as does the District of Columbia. Five states have three or more—the Texas Court of Criminal Appeals, which is that state’s court of last resort on criminal matters, has four female judges. Tennessee is one of three states with a majority of women on its supreme court. Michigan and Wisconsin are the other two. Two states have no women as justices, and neither—Idaho and Indiana—is in the South."

To round out the article, here is some more information on the courts in Texas, mostly from our Profile of Appellate and Trial Judges page. (One exception, I can just tell you that 5 of the 14 intermediate appellate courts have a woman chief justice.) On those same courts there are 33 women justices out of 80 total. On the district bench, 124 of 440 are women. On the county courts of law, 72 of 231 are women. And in the justice of peace courts, 278 of 822 are women. (Note that not every judge tells us this detail, so the numbers are not quite definitive.)

eFiling and Harris County

2010-06-28T12:14:00.000-05:00

Harris County District Clerk Loren Jackson continues to beat the drum for a free eFiling system specifically for Harris County, with a news release on June 17 and some uncritical coverage in the Houston Chronicle and Texas Lawyer. He is absolutely right, up to a point, and quite wrong after that point.

My office supports the Judicial Committee on Information Technology, which reports to the Supreme Court of Texas on these issues. The major objectives of JCIT and OCA are to secure sufficient funding to transition from “pay-as-you-file” to free eFiling and support local document management systems to enable paper on demand. Courts and counties clearly have to move toward more efficient systems of moving, storing, and giving access to the information that is at the core of their business - dispute resolution.

eFiling should be free. The pay-to-file model is really geared toward private attorneys and civil cases with existing filing fees, but in the courts there are also government filers, indigent filers, self-represented filers, and criminal defense eFilers. Texas courts have had electronic filing since 2003, and in the seven years since, adoption around the state has been relatively slow, but a lot of courts and counties are on board. Handling, storing, and retrieving paper court documents remains a large and rising expense to the courts. While strong usage of eFiling would save state and local government money, an obstacle to eFiling is cost to the filers, which may range from $6 to $16 per filing.

The current model, Texas Online, also depends upon the courts using a vendor (currently NIC USA) under a contract with a separate, executive branch agency (the Department of Information Resources). This is not to say that vendor-based eFiling is the wrong idea. The processing of fees (for court costs, not convenience fees) by credit card is complex, and continuing the obligation of 24x7 help desk operations is a difficult obligation for the government staffing model (presumably Loren Jackson has thought through these complexities). But depending upon a vendor with no direct contractual link is highly problematic as a practical matter, and presents a separation of powers concern as a principled matter.

So Jackson, the JCIT and OCA all support movement away from the current business model for eFiling. But what I envision is a free, state-supported system that provides a single portal for filing any kind of case in any Texas court from anywhere in the world. Jackson is impatient, insisting that Harris County judges and litigants demand and deserve their own free portal ahead of everyone else, and in fact to the detriment of everyone else. The following communities, which currently use Texas Online system, are among those who stand to suffer if Harris County pulls out of the current system: El Paso, Amarillo, Lubbock, Midland, San Angelo, Laredo, McAllen, Brownsville, Corpus Christi, San Antonio, Austin, Waco, Fort Worth, Dallas, Denton, and Tyler. Starts to look like everyone in the state versus the good citizens of Houston. Let's work together on getting where everyone agrees we need to go.

Bike to Work

2010-06-26T11:59:00.002-05:00

The people in my office know that I prefer to bike to work, and usually do. While I ride, like on the sidewalk trail along Lamar where all the cars are creeping along, I often wonder why more people don't. The main reason I do is, I just like it - the sensation of gliding through the air, hearing birds, connected to the world and doing comfortable work that stimulates my mind, instead of sitting in an effortless bubble and resenting the other bubbles. My preferred destination on weekends and before work when I can, is Barton Springs; nothing like a ride and swim to start the day. So I mostly just like it, but the health benefits are obvious, the traffic avoidance is peaceful, parking problems and carbon imprint are nonexistent. I also enjoy knowing the geography of Austin from a bicycle, biking with friends, and even the small amount of planning that is added to my day to include everything I need - change of clothes for work, swimsuit/towel/goggles, work itself, cell phone/wallet/sunglasses/keys - in panniers and fanny pack. Someday I'll get a trailer and do even the dog food by bike.

Many people don't live 4 miles from work, I know; (I used to ride about 8, and that was quite doable too). And many people feel more self-conscious than I about getting to work a little sweaty (or they have more complicated hair issues after wearing a helmet). But work isn't the only place you can and should bike. All our lives we make little loops from home, to work, to the store, to the pool, to the gym, to the hike and bike trail. (A pet peeve - those who feel virtuous driving their Tahoes downtown to exercise.) Why not bike to the gym and to the trail, and on every loop under 4 miles that doesn't involve kids or major cargo?

State government could do considerably more to promote a bicycling cultuer among state employees. The state has wellness initiatives and every incentive to promote employee health, less traffic, and fewer parkers (porkers?). I would certainly volunteer to evangelize - here I am - and even to coach individuals on picking a route and getting it done. I encourage the Texas Facilities Commission to look for opportunities to provide suitable shower and changing facilities (like the legislative staff enjoys in the Robert E. Johnson Building).

Self-Represented Litigants

2010-06-25T16:01:00.001-05:00

I first wrote about this topic in July last year, right after starting to blog. Now I am happy to report that the Texas Forum on Self-Represented Litigants and the Courts was held April 8 and 9, 2010 in Dallas at the Belo Mansion. Sponsored by the Texas Access to Justice Commission, Texas Access to Justice Foundation, Texas Legal Services Center, Office of Court Administration, and Legal Services Corporation, the Forum launched a statewide effort to provide Texas courts tools to help them deal with self-represented litigants. Over 120 participants attended, including members of the judiciary, legal services attorneys, court clerks and administrators, law librarians, and access to justice groups. Panelists from various segments of the Texas court system discussed the challenges posed by the increasing numbers of self-represented litigants as well as some of the strategies that have been developed in Texas to address these challenges. Several speakers highlighted successful programs that have been implemented in other states, including self-help centers, distance services, limited scope representation, and training for court clerks and administrators.

The Texas Access to Justice Commission’s Special Projects Committee, which coordinated the Forum, met after the Forum to evaluate the effort and determine next steps. Based on the Committee’s recommendation, the Commission decided at its May 4 meeting:

The Commission will request that the Supreme Court create a statewide Task Force to develop Supreme Court approved pleading and order forms for statewide use. An initial objective will be to determine what other efforts in this regard are currently underway and what is happening on a local level throughout the state, and then to bring all of these efforts under one umbrella.
The Commission will establish a committee that is dedicated solely to assisted pro se issues. The committee’s charge will include:

Considering legislative proposals that may direct financial resources for assisted self-help programs
Engaging in the education of clerks, law librarians, the judiciary, and the private bar, and advising stakeholders of financial and other resources available to assist with their efforts
Identifying best practices and communicating those to all interested parties
Coordinating/Serving as statewide clearinghouse for available resources
Continuing to monitor and assist the development of programs on a local level.

Those interested should monitor the listserv and the Access to Justice Commission’s website for information about self-represented litigant issues and projects.

And most important (I buried the lead again), today the Office of Court Administration, Texas Access to Justice Commission, Texas Access to Justice Foundation, and Texas Legal Services Center published a manual for clerks and court personnel who work with self-represented litigants: "Legal Information vs. Legal Advice: Guidelines and Instructions for Clerks and Court Personnel Who Work with Self-Represented Litigants in Texas State Courts." It is available on our Publications, Forms and Online Information page (which has a ton of material, look under Manuals and Handbooks towards the bottom). The manual is intended to help clerks and court personnel understand the difference between legal information and legal advice. It explains why clerks and court personnel must not give advice but should give legal information. It also contains examples of permissible and impermissible ways to answer questions from the public and a list of resources and referral information.

Legislative Proposals

2010-06-14T15:03:00.000-05:00

Every interim the Texas Judicial Council develops a series of proposals for changes to statute that will improve the administration of justice. In 2009, as I recall, about half of the bills we proposed were enacted, which is a pretty good batting average considering how many bills always die, and of course considering what happened on the House floor last session. This interim we have resurrected those proposals that did not pass and begun to add more. You can view the current list of ideas on a new page on the Judicial Council's website. Legislators and staff are encouraged to let me know if they are interested in authoring any of these ideas.

Strategic Planning

2010-06-09T16:18:00.001-05:00

My office is in the midst of developing our next strategic plan, which is due to be turned in on June 18th. Our current plan is already on the web if anyone is interested. I have been developing the text for that portion of the plan labelled "External/Internal Assessment," where we have the ability to frame some issues, describe strategic initiatives, and so on. The current draft of this portion of our new document is posted on the OCA website just below the current strategic plan, here is the link directly to my draft. I welcome input on this document, as soon as possible.

Justice Reinvestment

2010-06-02T10:34:00.001-05:00

I think I first heard this phrase used by Tony Fabelo at the CSG Justice Center, in reference to their work which eventually led to a national summit in January 2010, and which is summarized as "a data-driven strategy to reduce spending on corrections, increase public safety, and improve conditions in the neighborhoods to which most people released from prison return." Their work has been with state governments in places like Texas, Kansas, Wisconsin, Ohio, North Carolina, and Nevada.

My friend and former colleague Nancy LaVigne, at the Urban Institute's Justice Policy Center, has just launched their website to connect justice reinvestment to the local level of government (JRLL).
The JRLL model includes five obvious but critical elements that any local justice initiative should follow:

Collect and analyze relevant criminal justice data: aids stakeholders in targeting interventions based on risks to public safety.
Develop and implement alternative strategies: enables the county to identify interventions that address the key drivers of criminal justice costs.
Document costs and potential savings: clarifies the financial impact of the criminal justice population on various agencies' budgets.
Reinvest in the community and the jail: measures the impact of activities to increase savings and improve public safety.
Assess the impact of reinvestment strategies: reinvestment can be focused on prevention strategies in the jail or specific neighborhoods.

I have a couple of ideas for a new species of "justice reinvestment" in Texas. The beginning point is to identify sustainable funding strategies to support the growth and performance management of problem-solving courts: drug courts, family drug courts, veterans courts, mental health courts, prostitution courts, etc. Currently the governor's Criminal Justice Division spends about $7.3 million on this program, but recent requests for grants for new courts exceeded $10 million. The first idea is to look at reinvesting some or all of the funding that currently supports any excess capacity in the SAFP (Substance Abuse Felony Punishment Facility) regime.

Second, look for strategies to promote larger jurisdictions establishing problem-solving courts by persuading civil judges to transition to this new calling. It is my belief that most or all urban areas in Texas have more judges than they need for the civil caseload, and often too few judges in the criminal or family realms. As I noted back in January, the workload overall is only 20% civil, so if 30% of a locality's judges do civil cases, there is probably a mismatch of judicial resources.

Evidence-Based Sentencing

2010-05-26T11:23:00.000-05:00

Everywhere you turn there is talk of evidence-based practices in criminal justice, in fact I talked about this on February 8 when the model curriculum for judges came out from the National Center for State Courts, The National Judicial College, and the Crime and Justice Institute.

More recently an NIC-funded report came out from the Center for Effective Public Policy, in partnership with the Pretrial Justice Institute, the Justice Management Institute, and The Carey Group, entitled "A Framework for Evidence-Based Decision Making in Local Criminal Justice Systems." It looks like a good document, but I must say that everywhere I look at this issue, I see unresolved the problem of reconciling EBP with plea bargaining. The NIC report nicely summarizes the issue (but ultimately punts) thus:

[F]ew jurisdictions have available to them information about an offender’s risk to reoffend or criminogenic needs at the point of plea negotiation, meaning that key decisionmakers—prosecutors and defenders—negotiate these agreements absent information about how best to influence future criminal behavior based on the unique characteristics of the offender being sentenced. As a result, in most jurisdictions, cases are passed along to corrections and/or probation, which then assess risk/needs and, in many cases, work to retrofit research-based interventions to court-imposed sentencing parameters. Arguably, the introduction of risk/need information at the plea stage—and perhaps earlier—could have a profound effect on judicial decisions, and yet this is not without its due process and resource challenges. This is another of the important issues the initiative will address in Phase II.

Promising Court Practices

2010-05-11T15:13:00.006-05:00

In this time of budget cuts, courts across Texas should be looking for solutions to deliver justice more efficiently and effectively. Last Friday my office and our Judicial Council Committee on Court Resources met with representatives of the Travis County Court system for a lively briefing on several promising initiatives that they have implemented. Our enormous thanks to District Clerk Rodriquez-Mendoza and Judges Naranjo, Dietz, Lynch and Earle, and their talented staff. We learned more about:

The Law Library's self help program;
I-Jury Online jury impaneling;
Travis County Impact Supervision;
paperless courtroom practice in the civil courts, including Efiling, document management, and the brand new Civil Courts Online site which lawyers can use to schedule hearings;
and the broad variety of problem-solving courts they operate: drug diversion, DWI, misdemeanor and felony mental health, and veterans court.

Other promising Texas court practices that are documented on the Internet include:

Counties such as Harris and El Paso that use direct electronic filing of criminal cases, see “Evaluating the Impact of Direct Electronic Filing in Criminal Cases: Closing the Paper Trap,” Task Force on Indigent Defense (2006).

Recent study results on mental health courts and mental health public defender offices in Tarrant, Dallas and Travis counties. These programs create means through which an arrest can be used to address therapeutic needs. From its findings the study concludes that these specialty interventions offer good alternatives to incarceration that save money and address fundamental problems leading to criminal behavior.

The use of court performance measures to become “radically transparent” in Lubbock County, see “Radical Transparency in Action,” Lubbock County Board of Judges (2007), and other materials available on their website.

Based in Lubbock, the Regional Capital Public Defender Office, which is serving 65 counties and hopes to expand to serve 240.

The Committee on Court Resources also recently surveyed county auditors on their court budget situations, and learned (or learned more) about the following local initiatives, many motivated by jail population:

Williamson County: the County Attorney's 2007 direct-file case screening system to speed up adult misdemeanor dockets and alleviate jail crowding, and implementation of Tyler Odyssey's Prosecutor software.

Tom Green County: systemwide meetings to expedite processing times for jail inmates, cutting out of county housing costs by 96%.

Tarrant County: Differentiated Felony Court Management in the Tarrant County system, resulting fewer pending cases and reduced numbers awaiting trial in the jail; and the Tarrant District Attorney's Efiling and electronic open access to case files for defense counsel.

Nacogdoches County: video magistration by justices of the peace and a paper-ready position in the district clerk's office to speed the process of getting an inmate ready to transfer to TDCJ (from 38 days down to 3!), yielding a 32% decrease in jail population and allowing elimination of one jail shift.

Kerr County: a new weekly plea docketand video teleconferencing between courthouse and jail, and exploration of more video connections for the counties around Kerr that share judicial districts.

Hunt County: An intake prosecutor to eliminate a backlog; bar code scanning for tracking of court evidence; and audio/video technology for courtroom presentation of evidence.

Harris County: Creation of the Harris County Criminal Justice Coordinating Council to implement recommendations from a Justice Management Institute report involving jail population, indigent defense, special needs offenders, and other systemic issues; and a State Jail Impact Court for early and meaningful intervention on drug offenders.

Grimes County: Video magistration, streamlined attorney ad litem compensation; and clustering child protection and IV-D courts for greater efficiency.

Fayette County: Moving to Tyler Odyssey case management.

Dallas County: Several varieties of specialty courts and an updated system for attorney appointments.

Castro County: More frequent hearings to reduce jail population, and regular checks of criminal cases to discover those that may have slipped past due to out-of-county bonding.

Cass County: Construction of a criminal justice center with space to allow both district and county court to operate simultaneously.

Camp County: Adding scanning capability and a computer to the district court room for access to case records from the bench.

Cameron County: County-wide information technology implementation.

Caldwell County: Additional district attorneys, and judges receiving a weekly jail roster to help move cases.

Burleson County: Court compliance officer to aid in collection of fines, fees and costs.

Bexar County: Magistration system, rocket docket, and movement toward credit card acceptance for all courts to expedite payments.

Bastrop County: Special attention to processing cases in compliance with indigent defense requirements.

Law.Gov

2010-05-06T10:26:00.001-05:00

Earlier this week I attended an interesting workshop put on by UT Law Library and Public.Resource.Org, to promote "a proposed registry and repository of all primary legal materials of the United States." There were lots of librarians, including those from Tarlton, the Legislative Reference Library, and the State Law Library, people from the legal publishing industry including law bloggers, bar and court representatives, and the conveners. We reviewed the current offerings in Texas at the state legislative and judicial levels,as well as the Administrative Code and several options for viewing municipal ordinances. We talked about authentication and the definition of "primary legal materials"; see the law.gov website for their definition of the latter, which I note includes appellate briefs. As for the former, one thing we did not discuss about authentication of primary sources was a project that might be of interest to my friends in the law school world:

"A Note on Authenticity: With the law, close just isn't good enough. Primary legal materials need to be authentic and digitally signed. As the American Association of Law Librarians said in their ground-breaking report at the AALL National Summit on Authentic Legal Information in the Digital Age, 'it is time to save the legal information system.' We propose to enlist the law students of America as auditors during the startup phase of Law.Gov, asking students to systematically compare on-line to printed materials. The students would gain reputation points in the registry, which they could use to demonstrate their public service when applying for jobs or clerkships. Would such a system work? When we tour the law schools, we intend to dig in and ask that very question."

The most stimulating part of the day was provided by two practitioners of computational legal studies(TM), who used techniques I cannot pretend to describe, to present topics I could understand, such as "Visualizing Temporal Patterns in the United States Supreme Court’s Network of Citations," "The Development of Structure in the Citation Network of the United States Supreme Court," and "Six Degrees of Marbury v. Madison : A Sink Based Visualization." Fascinating stuff, check it out.

Texas Judicial Organization

2010-05-03T13:48:00.000-05:00

As a strategic challenge, the most significant and pervasive issue from a state perspective is the high degree of decentralization, complexity, and shared local/state responsibility within the Texas court “system.” The (1993) Citizen’s Commission on the Texas Judicial System said:

"Texas has no uniform judicial framework to guarantee the just, prompt and efficient disposition of a litigant’s complaint. The framers of our Constitution deliberately designed a system to 'localize' justice, establishing a multiplicity of largely autonomous, conveniently located courts across the state. With the passage of time, the organization of the courts has become more, not less, cumbersome."

More recently (2007), the tort reform group Texans for Lawsuit Reform described the system thus:

"The Texas judicial system is complicated, inefficient, and poorly structured to handle modern litigation. Since its basic structure was created in the late 1800s, it has been expanded periodically on a purely ad hoc basis. As a result, the system is replete with anomalies and peculiarities. Problems exist at every level and extend to the administration and funding of the courts. Comprehensive reform is needed to produce greater coherence, efficiency and accountability."

In the system as described in these excerpts, there are a lot of actors. Along with everyone else in 254 counties (by far the largest number in the United States), many of them independently elected officials such as district and county clerks, there are over 3,700 judges currently working in Texas:
98 appellate judges on 16 appellate courts
453 district judges in 453 districts
129 associate judges, magistrates etc. (non-elected judges)
280 visiting judges eligible for assignment (previously elected judges)
254 constitutional county judges (not all of whom hear cases)
249 county court at law and statutory probate judges
822 justices of the peace
+1463 municipal judges (non-elected judges)
= 3,748 judges

The system is not only localized, it is administratively fragmented at the state level. Several functions that should naturally fall within the administrative office of the courts as an arm of the Supreme Court, which has constitutional responsibility for administration of the judicial branch, do not: administration of drug courts, which resides in the Office of the Governor under Ch. 469, Health & Safety Code; administration of adult probation, which resides in the Department of Criminal Justice under Ch. 509, Government Code; and certification of court interpreters, which is handled by the Department of Licensing and Regulation under Ch. 57, Government Code. The power of appointing the nine regional presiding judges, who in turn appoint visiting judges and hear recusal motions, rests with the Governor instead of with the Chief Justice or the Supreme Court. And although the Supreme Court has constitutional responsibility for the administration of the judicial branch, judicial education was legislated away from the Supreme Court in 1993, to be administered by the Court of Criminal Appeals.

The high degree of decentralization, complexity, and shared local/state responsibility within the Texas court system creates a challenge for any who would strive for greater efficiency, uniformity, or standardization. However, shared governance of the mechanics of justice is embedded in the Texas Constitution and carried forward by the Philosophy of Texas State Government: “Decisions affecting individual Texans, in most instances, are best made by those individuals, their families, and the local government closest to their communities.”

Judges Joining Together

2010-04-28T16:31:00.003-05:00

As I mentioned last July, Chief Justice Jefferson and I are active in our respective national associations. Personally I have always found there to be great value,and comfort, in connecting with people who do what you do, but in other states. The National Center for State Courts supports our groups (which are limited to chiefs and state court administrators) but also a number of other groups that may be of interest to judges in Texas. See the whole list on their website, and the one I wanted to single out today, because they have a brand new website, is the American Judges Association. They also publish Court Review, a very useful magazine; for example, the current issue has an article on how to have an effective commission to address racial and ethnic bias in the courts. Another group that I have been very impressed with, which is not supported by NCSC, is the National Council of Juvenile and Family Court Judges; El Paso District Judge Patricia Macias is the current President, and I know several other Texas judges who are very active with them, including our Jurist in Residence, John Specia, and District Judge Darlene Byrne, here in Travis County.

Kids in Court

2010-04-27T10:07:00.000-05:00

I notice that Senator Whitmire has a Criminal Justice committee hearing scheduled for May 13, partly to discuss their interim charge #10 on "facilitating the fair and accurate courtroom testimony of children and reducing the trauma associated with testifying, particularly for children who are victims of sexual abuse." But my current interest in children in court is more on the civil side, meaning child abuse and neglect or "CPS" cases, and is animated by the Beyond the Bench conference for Houston that I recently described. There I learned of a widespread consensus in Houston against bringing children to court in CPS cases; in fact the Family Division of the District Courts has a local rule stating:

"3.5 Interview of Child / Child's Testimony. In all cases in which the court deems testimony of a child to be necessary or required by statute, the attorney wishing to have the child interviewed shall arrange a specific time through the court coordinator for the court to interview the child. No party is to bring a child to the courthouse to testify without prior arrangement pursuant to this rule, unless the child's attendance is required by court order including a writ of habeas corpus or attachment. The attorney or pro se party who is responsible for the child's attendance at court shall immediately notify the court coordinator of the child's presence in the courthouse. The child shall not be brought into the courtroom without the express consent of the judge or associate judge."

Contrast that consenus with the Texas Family Code, §263.302: “The child shall attend each permanency hearing unless the court specifically excuses the child’s attendance.” And §263.501(f) (placement review hearings) states: “The court shall consult with the child in a developmentally appropriate manner regarding the child’s permanency or transition plan, if the child is four years of age or older.”

In an article in the Texas CASA newsletter, Judge Karin Bonicoro discusses why she believes the Family Code makes the appropriate call on this issue, in spite of the difficulties of bringing children to court:

"Both the court and the child benefit from the child’s participation. As a judge, I have found that the child’s attendance and voice add an indispensable component to the hearings and my decision making process. When I am able to observe the child, I get a sense of that child’s condition and abilities (physical, intellectual, social, verbal). I sometimes see the effects of the psychotropic medications the child is prescribed, something I would miss entirely if the child was absent. In some instances this has led to orders for an independent medication review, resulting in changes in, or discontinuation of, the child’s psychotropic medications. In talking to the child, I learn their wishes regarding permanency, and their plans upon leaving care. I may learn about a previously unidentified relative or kinship placement option. The child can tell me in her own words how she feels she is doing in her placement or in school, or why she has engaged in a particular behavior. She may request services or other accommodations she thinks might benefit her. A child may request information on the location or well-being of a sibling in care, or request the opportunity to communicate with specific family members. When a youth informs me he plans to return to a particular person when he leaves care, I have the opportunity to try to have that person located and, if appropriate, included in the transition planning for the youth."

One thing that will help the children and judges in Houston is construction of a new, much more suitable courthouse for these cases, making it much more feasible and less stressful for the children to come to court. Apparently bonds have been approved by the voters, but not issued by the commissioners court.

MeMeMe

2010-04-26T14:06:00.000-05:00

I used to have someone who worked for me who said "MeMeMe" in the subject line of her e-mails requesting time off; it always brought a smile to my face. But enough about anonymous her, let's talk about me.

The occasion? Five years ago yesterday was my official first day in this job. For the record and otherwise, it has been wonderful. I owe Chief Justice Jefferson and the Supreme Court of Texas a huge debt for bringing me into the world of courts. I have an awesome staff, fascinating and meaningful work, and great contacts with others in Texas and around the nation. So thanks to all with whom and for whom I work, I appreciate you!

The Next Generation

2010-04-25T05:52:00.002-05:00

International organizations, seeking to bring stability and economic prosperity to the developing world, constantly emphasize the importance of the rule of law. Societies where disputes are resolved according to an orderly framework of law, administered by neutral and professional officials, are safer and more prosperous, pure and simple. More on this idea and its promotion at websites like the United States Institute of Peace, the International Law Institute, and the World Justice Project (which is sponsoring a Rule of Law conference for the Middle East and North Africa in June).

Closer to home, American judges and court professionals share a deep-seated reverence for the value of the rule of law, and frankly a deep-seated fear that their reverence may not transcend the generations. But much effort goes to preserving and extending this value, and we hope that American teachers utilize high-quality resources available to teach the next generation about civics and our constitutional order. For example, the National Center for State Courts provides a graphic novel series called Justice Case Files to help educate the public about how the courts work and to remind them of the critical role courts play in a democratic society. Another terrific teaching tool is the "Justice by the People" curriculum offered by the American Board of Trial Advocates, a group devoted to preserving the right to a civil jury trial.

In Texas, ABOTA and the State Bar of Texas Law-Related Education Department, along with the Texas Bar Foundation, the Western Judicial District of Texas, and Law Focused Education, Inc., launched a pilot program in 2009 called the Teachers Law School. Teachers learned Texas criminal and civil law procedures, and participated in discussions designed to prepare them to return to their classrooms well-equipped to provide an introduction to the world of law. Texas civics teachers will also want to visit the wealth of resources available for Law Focused Education and Law Related Education.

Beyond the Bench

2010-04-24T06:09:00.000-05:00

Last week I had the privilege of attending most of a "Beyond the Bench" conference sponsored by the Supreme Court's Permanent Judicial Commission for Children, Youth and Families, my first but by no means the first one conducted by the Texas Center for the Judiciary. These conferences bring together all of the people and all of the disciplines involved in conducting child abuse and neglect cases in a particular locale, in this case Harris County (Houston). The format is to watch a video that depicts the evolution of a single "CPS" case, pausing at intervals to deconstruct what has happened and, with skilled moderators, query a multidisciplinary panel about what they saw and how it would play out in their locale. So, the panel had representation from the judiciary, prosecution, law enforcement, CPS, child advocacy, counsel for the parents and children, substance abuse treatment, mental health treatment, housing, workforce, education, and the parents and child. This itself was extraordinary. But the format continues with breakout sessions where each judge has assembled a multidisciplinary team of people who work in their courtroom, to troubleshoot the process and look for opportunities to improve the way the system works.

In Harris County, twelve elected judges and twelve more associate judges handle CPS cases. (Some also handle juvenile justice cases while other also handle family law cases, so this diffusion between so many judges, with many different modes of practice, is one of the issues for them to consider.) Not all those judges were present, but many were, along with an amazing cross-section of the resources and talent in the third largest city in the country. The synergy and energy that I witnessed, and the willingness to take a look at local practices and improve them, were inspiring and hopefully a harbinger of great things to come. I hope so for the children of Harris County, but also for the sake of Texas. Our foster care system is 60% funded by the federal government, and they grade us every few years by looking, in part, at Harris County as the largest jurisdction in the state, in the process known as the Child and Family Services Review or "CFSR." Texas-specific information on the CFSR is available on the CPS website, including the 2009 Final Report.

Court Records Task Force

2010-04-19T11:55:00.000-05:00

As I mentioned on February 8, recently the Supreme Court commissioned a new task force dedicated to the preservation of court records. Their work has begun in earnest and I must say it is fascinating to witness.

These are records that have been generally underappreciated and in some instances, ignored, for over 150 years. These archives include documents pertaining to the Republic of Texas; slavery; the Civil War; Reconstruction; early conflicts between ranchers and farmers; the early days of the railroads and the energy industry, and numerous documents involving famous Texans from Sam Houston to Leon Jaworski. Some of these records are being stolen and put on ebay. Others are crumbling or being eaten by pests.

For example, a task force member reports that he found in the Harris County court archives a deposition on written questions of Charlotte Allen from 1870, when she was very old. Her money was used to purchase the land that became the City of Houston, and she was the first woman to live in Houston (and she was the one who named the town "Houston"). The deposition centered on her recollections of the early property ownership of the City, and how the Allen Brothers (one of whom was her husband) sold off their land rights.

Soon the task force will send out a survey to the court clerks around the state, as a major part of information gathering on the current state of affairs. They are also working to engage university students to write papers based on court case records from different counties, illustrating the rich history that is available from these records.

Office of Capital Writs

2010-04-01T12:40:00.000-05:00

SB 1091 established the Office of Capital Writs to provide legal representation for indigent capital murder defendants who are sentenced to death. The bill also created a Capital Writs Committee appointed by the State Bar of Texas president to recommend candidates for director of the capital writs office. The director is then to be appointed by the Court of Criminal Appeals. The first two implementation milestones below have been met and the Capital Writs Committee has issued a job posting, available on Texas Courts Online.

On or before January 1, 2010: The presiding judges of the administrative judicial regions shall complete and administer the statewide list of competent counsel available for appointment to represent defendants in applications for writs of habeas corpus.

On or before January 15, 2010: The president of the State Bar of Texas shall appoint the members of the capital writs committee.

On or before May 15, 2010: The capital writs committee shall submit to the Texas Court of Criminal Appeals the list of candidates for the position of the director of the office of capital writs.

On or before September 1, 2010: The Texas Court of Criminal Appeals shall appoint the director of the office of capital writs.

The funding for the office of capital writs begins in FY2011 and was included in the Office of Court Administration’s portion of the state budget. Our staff has met to begin planning the startup of the office, including finding office space to house the expected staff of 9.5 FTEs when it is fully implemented. We are also beginning to look at how to submit a Legislative Appropriations Request in August of this year, on behalf of an office that will not yet exist at that time.

Treatment of Prisoners

2010-03-08T11:38:00.000-06:00

As noted on September 29th, I have been involved in this project for some time. In February 2010, the ABA House of Delegates approved the new ABA Criminal Justice Standards on Treatment of Prisoners . These Standards supplant the previous ABA Criminal Justice Standards on the Legal Status of Prisoners and, in addition, new Standard 23-6.15 supplants Standards 7-10.2 and 7-10.5 through 7-10.9 of the ABA Criminal Justice Mental Health Standards. The new standards can be viewed on the ABA's website.

Mental Health Care

2010-02-23T17:03:00.000-06:00

Recently I became involved in a Task Force led by the Department of State Health Services, and prompted by the approach of full capacity at the state hospitals.
In that context I became aware of an upcoming public hearing that may be of interest:
Rural Strategies for Jail and Hospital Diversion
March 3rd, 2010, 9AM-3PM
Czech Heritage Center, La Grange, Texas

AGENDA

9:00 AM Continental Breakfast

9:20 AM Welcome
Judge Dan R. Beck, Mike Maples, Andrea Richardson

9:25 AM Overview of the Day
Susan Stone

9:30 AM Mental Health Jail Diversion Strategies
Henry Steadman, Dan Abreu
Description of Session: An overview of successful mental health and criminal justice diversion strategies across the national spectrum will be described, along with discussion of rural implementation issues.

10:00 AM National Perspective on Mental Health Courts
Henry Steadman, Dan Abreu
Description of Session: Specialized court based jail diversion strategies have been growing in numbers across the country. Highlights of successes and challenges of mental health courts will be described.

10:30 AM Break

10:45 AM Using Data to Drive Policy
Henry Steadman, Dan Abreu, Susan Stone
Description of Session: As the reliability of meaningful data is dependent upon commitment of stakeholders to develop systems to gather, report and analyze local data, this session offers a practical approach to performance measurement supporting policy making decisions.

11:15 AM Collaboration Among Criminal Justice and Behavioral Health Entities in Rural Areas
Susan Stone, Henry Steadman, Dan Abreu
Description of Session: Meaningful outcomes are dependent upon commitment and collaboration. Rural areas with a relatively sparse population density in a large geographic area realize significant barriers for the development and sustainability of mental health jail diversion. Rural initiatives in other jurisdictions, cost implications and funding strategies will be discussed.

12:00 Lunch (Provided)

12:45 PM Reactor Panel
Description of Session: Invited local and state representatives will be asked to discuss implications and applicability of information provided in the morning session to local and state policy and planning efforts.

1:30 PM Break

1:45 PM Public Psychiatric Hospital Bed Capacity Crisis: Preliminary Recommendations of the Continuity of Care Task Force
Susan Stone
Description of Session: As the increasing need for forensic beds places added pressure on the scarce resource of public psychiatric beds in Texas, practical recommendations based upon national successes are presented and public feedback is solicited.

3:00 PM Adjourn

Changing Times for Making the Record

2010-02-08T09:53:00.000-06:00

The Conference of State Court Administrators (COSCA) has issued perhaps the most hard-hitting white paper that I've seen, as this excerpt will show:

If court administrators were to describe the current model for creating the verbatim court record to anyone unfamiliar with court operations, would their confidence in the court system's efficient use of staff and technological resources be lessened? What would they say if they learned that thousands of staff are assigned to individual courtrooms to make this manual record even though few cases are appealed? How might they react if they learned that the manual recording of those proceedings is made in a media that could be interpreted into written English only by the individual making the record? How would we explain that in most states the recording is the property of the employee and not the court? What reason would we provide for the fact many employees receive a fee beyond their government salary from litigants requiring transcription for appeal purposes and that the timely preparation of these records is not under a court’s control? How would we explain that public access to the official court record can be obtained only by paying this fee to a public employee? If this process were complicated by the declining supply of reporters and by the current economic crisis, how would we respond to their questions on how we intend to improve and strengthen the business of creating, producing, and maintaining the court record? These questions demonstrate that change is necessary.

Texas Court Records Preservation Task Force

2010-02-08T09:07:00.000-06:00

On Nov. 16, 2009, the Supreme Court of Texas established this much-needed task force via Misc. Docket No. 09-9183, to chart a course for preservation of the historical treasures to be found (and sometimes stolen from) in Texas courthouse records. The 19 member task force is chaired by Bill Kroger of Baker Botts and has a meeting this Wednesday Feb. 10 at 1:00 in Austin.

Juror Use of Electronic Communications

2010-02-08T09:00:00.000-06:00

At its December 2009 meeting, the U.S. Courts Judicial Conference Committee on Court
Administration and Case Management (CACM) endorsed a set of suggested jury
instructions that district judges should consider using to help deter jurors from using electronic technologies to research or communicate about cases on which they serve. They developed these instructions to address the increasing incidence of juror use of such devices as cellular telephones or computers to conduct research on the Internet or communicate with others about cases. Such use has resulted in mistrials, exclusion of jurors, and imposition of fines. The suggested instructions specifically inform jurors that they are prohibited from using these technologies in the courtroom, in deliberations, or outside the courthouse to communicate about or research cases on which they currently serve. Here they are in their entirety:

Proposed Model Jury Instructions
The Use of Electronic Technology to Conduct Research on
or Communicate about a Case
Prepared by the Judicial Conference Committee on
Court Administration and Case Management
December 2009

Before Trial:

You, as jurors, must decide this case based solely on the evidence presented here within the four walls of this courtroom. This means that during the trial you must not conduct any independent research about this case, the matters in the case, and the individuals or corporations involved in the case. In other words, you should not consult dictionaries or reference materials, search the internet, websites, blogs, or use any other electronic tools to obtain information about this case or to help you decide the case. Please do not try to find out information from any source outside the confines of this courtroom. Until you retire to deliberate, you may not discuss this case with anyone, even your fellow jurors. After you retire to deliberate, you may begin discussing the case with your fellow jurors, but you cannot discuss the case with anyone else until you have returned a verdict and the case is at an end. I hope that for all of you this case is interesting and noteworthy. I know that many of you use cell phones, Blackberries, the internet and other tools of technology. You also must not talk to anyone about this case or use these tools to communicate electronically with anyone about the case. This includes your family and friends. You may not communicate with anyone about the case on your cell phone, through e-mail, Blackberry, iPhone, text messaging, or on Twitter, through any blog or website, through any internet chat room, or by way of any other social networking websites, including Facebook, My Space, LinkedIn, and YouTube.

At the Close of the Case:

During your deliberations, you must not communicate with or provide any information to anyone by any means about this case. You may not use any electronic device or media, such as a telephone, cell phone, smart phone, iPhone, Blackberry or computer; the internet, any internet service, or any text or instant messaging service; or any internet chat room, blog, or website such as Facebook, My Space, LinkedIn, YouTube or Twitter, to communicate to anyone any information about this case or to conduct any research about this case until I accept your verdict.

Evidence-Based Sentencing

2010-02-08T08:13:00.000-06:00

The Center for Sentencing Initiatives has available a new model curriculum developed by the National Center for State Courts, The National Judicial College, and the Crime and Justice Institute to assist trial judges in developing sentencing practices that improve public safety and reduce the risk of offender recidivism. Intended as a six-hour course, the program was developed to help judges:

- identify those offenders who are the most appropriate candidates for recidivism reduction strategies;

-target conditions of probation at relevant offender characteristics to achieve effective sentencing outcomes;

-improve responses to violations of probation;

-identify the components of effective probation supervision practices and treatment programs;

-reduce the risk of re-offense through positive interactions with offenders; and

-work effectively with other criminal justice agencies to adopt effective sentencing and corrections practices.

Let's hope this curriculum is noted by the Court of Criminal Appeals, the Texas Center for the Judiciary, and other entities concerned with educating Texas judges and attorneys in criminal justice. And take note, legislative staff, the closest thing in current law (1991) in Texas focuses attention (as we did back then) on diversions, it is (mis)placed in Government Code ch. 22 (Appellate Courts):

Sec. 22.012. TRAINING RELATED TO DIVERSIONS. (a) Each attorney representing the state in the prosecution of felonies and each district court judge shall, as an official duty, each year complete a course of instruction related to the diversion of offenders from confinement in the institutional division.
(b) The supreme court shall adopt rules to provide for the training required by Subsection (a). In adopting the rules, the court shall consult with the Texas Department of Criminal Justice to obtain the department's recommendations for instruction content.
(c) The instruction must include information relating to:
(1) case law, statutory law, and procedural rules relating to felony diversions; and
(2) available community and state resources for diversions.

Added by Acts 1991, 72nd Leg., 2nd C.S., ch. 10, Sec. 11.09(a), eff. Aug. 29, 1991

CM/ECF

2010-01-30T08:34:00.000-06:00

This is the United States Administrative Office of the Courts' Case Management/Electronic Case Files software used by the federal courts. The Mississippi Supreme Court and its Administrative Office of the Courts have been implementing this system in some of their state courts, and Texas just sent a team from our Judicial Committee on Information Technology to see how that is going. In a nutshell, their pilot is going well, we were quite impressed; check it out at http://www.mssc.state.ms.us/mec/mec.html. They imposed a new $10 filing fee on all civil filings to fund the effort and have a contractual arrangement with their state IT office (like our Department of Information Resources) to assist in the effort.
Coincidentally, we were there on the day when the Mississippi Supreme Court issued an administrative order ruling that the most recent budget cutting order by the executive branch cannot be applied, under separation of powers, to the judiciary.

Workload of District Courts

2010-01-18T12:16:00.000-06:00

One component of information that has only recently become available to Texas is the weighted caseload (or “judicial needs”) study conducted for the Office of Court Administration by the National Center for State Courts in 2007. District judges across the state participated in the study, tracking their time by case category and activity type for a full month. This effort allows measurement, not just of the number of filings in various categories, but the differential workload associated with those filings. The time study was conducted during the entire month of October 2007. Throughout the month, judicial officers were asked to track and record the time they spent handling cases by both case type and case-related event. The case weights are calculated by summing all judicial officer time recorded for each case type and dividing by a three-year average of the number of cases filed for each case type during FY 2005-2007. This result provides a picture of current practice: the average amount of time currently spent by judicial officers in Texas handling each type of case. For example, a high level felony takes 186 minutes, while a misdemeanor takes 12 minutes.

Applying those case weights to the filings for fiscal year 2008, the following workload distribution is derived.

Criminal 40.6%
Civil 20.7%
Family 34.0%
Juvenile 4.7%

Within the category of civil cases, the higher-profile civil areas of judging (the tort and contract cases that presumably are near and dear to those who make most campaign contributions to elected judges?) constitute only 3.2% and 5.2%, respectively, of the total workload of the district judges in Texas. Another way to view this information is that (only) about one-fifth of the work of district courts is involved with civil cases other than family law; the other almost 80% is criminal, juvenile and family.

Vanishing Jury Trials

2010-01-07T08:43:00.000-06:00

The decline in trials in the trial courts of America has been called “the most profound change in our jurisprudence in the history of the Republic.” As summarized in 2005 by Supreme Court of Texas Justice Nathan Hecht [The Vanishing Jury Trial: Trends in Texas Courts and an Uncertain Future, 47 S.Texas Law Review 2005], the annual number of jury trials in federal civil cases declined by 52%, 1985-2002, and in Texas civil cases declined by 49%, 1986-2004. As reported in a widely cited 2004 article by Marc Galanter [The Vanishing Trial: An Examination of Trials and Related Matters in Federal and State Courts, 1 J.Empirical Legal Stud. 459 (2004.]:

"The data provide a picture of trends in the state courts that overall bear an unmistakable resemblance to the trends in federal courts we have been examining. The portion of cases reaching jury trial declined from 1.8 percent to 0.6 percent of dispositions and bench trials fell from 34.3 percent to 15.2 percent. The absolute number of jury trials is down by one-third and the absolute number of bench trials is down 6.6 percent."

The Office of Court Administration recently updated Justice Hecht’s data, which ended in 2004, to see how the trends look in Texas. First a note on methodology: OCA reports contain data for the “criminal docket,” “civil docket,” and “juvenile docket.” Since 1986, family law cases have comprised about half of the civil docket. Family law cases (Reciprocals, Divorce, and All other Family Law Matters) are excluded from this analysis, as they were excluded from Justice Hecht’s. He reasoned that the rights to a jury trial and to a binding verdict are limited in family law cases, and jury trials are therefore much less frequent than in other civil cases; and, such cases cannot be brought in federal court, and an important purpose of Judge Hecht’s original article was to compare the situations in the Texas and federal systems. For simplicity, “civil” in this analysis should be read to mean “non-family civil.”

First, all dispositions of civil cases overall declined from 1986 to 1995 and then steadily increased until 2008, with a slight decline in 2009; the net of these two trends over 20 years was a 1.3 increase. Over just the past decade, civil case dispositions show a 29.6 percent increase. Annual dispositions in criminal cases rose 16.2 percent from 1999 to 2009 and 39.3 percent from 1989 to 2009. Criminal cases show a steady increase from 1986 to 2007 and then a slight drop from 937,722 to 891,290 in 2009.

Civil and criminal jury trials dropped during the 20 year period, both absolutely and as a rate of dispositions. The absolute number of jury trials, civil and criminal, in district and county court at law, dropped 20.4 percent. Criminal jury trials dropped 7.2 percent, and civil jury trials led the decline with a 43 percent decrease. The minimum occurred in 2006 when 1,708 trials occurred. The number climbed to 1,991 in 2009, which does not begin to approach the 3,492 jury verdicts from 1989. The decline in civil jury trials in Texas courts continues to follow the trends noted by Judge Hecht in 2004; interestingly, at the time of his article, criminal jury trials had increased by 20% from 1986 to 2004, but that has now reversed as noted above.

Trials as a percentage of dispositions, the “rate of disposition,” dropped an overall 41.7 percent. The difference between civil and criminal trials was less pronounced in this category. The rate of disposition for criminal cases dropped 33.4 percent from 1.05 percent of dispositions in 1989 to .7 percent of dispositions in 2009. This category has a smooth drop with the rate in 1989 as the maximum and the rate in 2009 as the minimum. The civil disposition rate dropped 43.7 percent, but the drop is more erratic. In 1989 the rate was 1.07 percent of dispositions, which fell to .6 percent of dispositions in 2009. The maximum occurred in 1992 with 1.2 percent, and the minimum of .5 percent occurred in both 2007 and 2008.

Thanks to OCA research specialist Jessica Tyler for her help with this data set.

Collection Improvement

2009-12-14T12:36:00.001-06:00

Lack of compliance in paying fines and fees denies a jurisdiction revenue and, more important, calls into question the authority and efficacy of the court and the justice system. Tight operating budgets, the search for additional funding for courts, and a continuing desire that court orders command the respect of defendants have combined in recent years to increase interest nationwide in collection of fines and fees.
Courts that have been the most successful in collecting have (1) adopted a philosophy that active, if not aggressive, collection is the right approach to take; (2) decided to improve community perceptions; and (3) dedicated some staff and other resources to the collection effort. Courts that have not made progress in fine collection have probably not yet grappled with these issues.
The preceding paragraphs are excerpts from a new publication by the National Center for State Courts entitled "Current Practices in Collecting Fines and Fees in State Courts: A Handbook of Collection Issues and Solutions" (2nd Ed.). It is available on the Center's website, www.ncsc.org, and more specifically here.
The OCA Collection Improvement Program, which is featured in the National Center's report, is another resource.

Annual Statistical Report

2009-12-14T08:30:00.001-06:00

As noted on November 10, we delayed publication of this report so that it could be previewed by Judicial Council and we would have time to add in some new features. Those features are salary and turnover information on Texas judges, pp. 17-20; Annual Reports of Judicial Boards, Agencies and Commissions (OCA, Judicial Council, TFID, JCIT etc.), pp. 63-79, and summary information on several areas of required reporting to OCA, pp. 61-62:

Hate crimes
Vexatious Litigants
Appointments and Fees
Capital Case Jury Charges, and
Security Incidents.

Check out the 2009 report at http://www.courts.state.tx.us/pubs/AR2009/AR09.pdf.

State Budgets and Courts

2009-12-04T07:33:00.000-06:00

The Center of Budget and Policy Priorities is projecting that state deficits will total $178 billion in 2010 with 41 states looking at shortfalls. State court budget reductions have been widespread, as reported recently with regard to Massachusetts in particular, in the New York Times editorial page. Ten states are actively looking at reengineering their services: Alabama, Florida, Minnesota, Michigan, New Hampshire, Iowa, Nebraska, Rhode Island, Utah and Vermont. They are looking at staffing to the most efficient level, using technology to the utmost, and tackling structural and governance issues that might be politically untouchable in better times.

Utah is a particularly interesting and dramatic example. Doubling filing fees there in the last legislative session allowed them to sustain "only" a 5% decrease in their unified state court budget, but they have gone much further to examine every aspect of their delivery of court services. They have accelerated e-filing, e-payments, e-documents and e-warrants; radically reorganized their clerk of court operations; downsized by 12% and reorganized their administrative office of the courts (the counterpart to OCA); instituted remote hearings, meetings and training; automated administrative functions in human resources, payroll and purchasing; required evidence-based practices in the provision of services, particularly juvenile justice treatment; and eliminating court reporters in favor of digital recording. Their Judicial Council has begun to look closely at contoversial judicial productivity issues, such as moving judicial vacancies to areas of greatest need, restructuring the use of senior judges by building them into the regular calendar, training judges in mediation and structured judicial settlement conferences to move their civil dockets more rapidly, and providing judges with cross-jurisdiction for domestic and juvenile cases. They propose to mandate by rule that all citation cases be filed electronically by law enforcement by a date certain in the near future, tied to automating their justice of the peace courts. They are going to contract with interpreters for a 40 hour week rather than case-by-case, working remotely and saving travel costs. They are consolidating all jury coordination services, and eliminate seperate clerk counters for district and juvenile courts. And, the are going to limit filing sites to one per county and eliminate or transfer personnel, and are further looking at reducing from 54 sites to 8 sites statewide. They are studying jurisdictional changes to use justice courts more efficiently, consolidating administrative districts to provide better distribution of resources and eliminate duplicate administration, and consolidating warrant issuance to a statewide function.

With the Texas Comptroller of Public Accounts advising that our sales tax revenue in October 2009 is down almost 13% from 2008, these issues may become increasingly relevant for us. Much more information is available on this topic at the National Center for State Courts' Budget Resource Center.

Travels

2009-12-04T07:25:00.000-06:00

I have been deblogged lately by travel. The week before Thanksgiving I had the opportunity to go to D.C. for my first meeting on the board of the Conference of State Court Administrators, and to attend the Rehnquist Dinner where an outstanding state jurist is honored each year in the reception hall of the Supreme Court of the United States. (The honoree was Timothy Evans, the Chief Judge of the Circuit Court of Cook County Illinois.) The week of Thanksgiving my family and a family of friends visited Athens, Greece and Istanbul, Turkey, an amazing trip. And this week I have my COSCA midyear meeting in St. Augustine, Florida. But I am getting back in the swing, hopefully to post more soon.

Annual Statistical Report

2009-11-10T15:46:00.000-06:00

As any readers probably know, OCA collects and publishes statistics on judicial activity in Texas. Probably the best web page to refer you to is:
http://www.courts.state.tx.us/oca/required.asp

Please be advised that the published version of the Annual Statistical Report for the Texas Judiciary will be released later than the usual (statutory) date of December 2. I have asked staff to make a variety of changes this year, including consolidating reports and incorporating content from other reports also produced by OCA. These changes will take a little extra time to implement. In addition the Texas Judicial Council meets on December 11 and I would like to have them adopt the consolidated report. We anticipate publishing the report in January and hope that you will find it even more informative and useful. In the meantime if you have any questions please contact me at 463-1626 or carl.reynolds@courts.state.tx.us, or our manager of judicial information, Angela Garcia, at 936-1358 or angela.garcia@courts.state.tx.us.

Ethics Advisory Opinion 484

2009-11-06T16:42:00.000-06:00

An issue that has my attention this week is an opinion that came out of the Texas Ethics Commission in August, EAO-484, which casts doubt on the legitimacy of reimbursing elected officials (judges, for my purposes) for their expenses to attend or speak at educational conferences. To quote the opinion, "the provision of transportation, meals, and lodging to an officeholder to facilitate the officeholder’s attendance at the event would constitute an officeholder contribution if the expenses are not reimbursable with public money."
[Emphasis added]

So the key is whether the expenses in question are reimbursable with public money. The hardest part of that regimen is reimbursing food expenses. As the Comptroller's "Purchase Policies & Procedures Guide" states: "The attorney general has said that the Texas constitution prohibits a state agency from purchasing food, coffee, cream, sugar and similar items that employees of or visitors to the agency would consume."

I will advise if I hear more on this issue, which has sent a shiver through the purveyors of judicial branch education.

Local Administrative Judges

2009-10-21T10:58:00.000-05:00

As you may know, there are nine regional presiding judges in Texas, who are the backbone of judicial administration in the state. In addition, every county in Texas has a local administrative district judge and, if there is a county court at law, a local administrative CCL judge, serving a two-year term in that position. Most duties of LAJs are enumerated in §74.092 Government Code:

1.implement and execute the local rules of administration, including the assignment, docketing, transfer, and hearing of cases;
2.appoint any special or standing committees necessary or desirable for court management and administration;
3.promulgate local rules of administration if the other judges do not act by a majority vote;
4.recommend to the regional presiding judge any needs for assignment from outside the county to dispose of court caseloads;
5.supervise the expeditious movement of court caseloads, subject to local, regional, and state rules of administration;
6.provide the supreme court and the office of court administration requested statistical and management information;
7.set the hours and places for holding court in the county;
8.supervise the employment and performance of nonjudicial personnel;
9.supervise the budget and fiscal matters of the local courts, subject to local rules of administration;
10.coordinate and cooperate with any other local administrative judge in the district in the assignment of cases in the courts' concurrent jurisdiction for the efficient operation of the court system and the effective administration of justice; and
11.perform other duties as may be directed by the chief justice or a regional presiding judge.

See more on the duties of LAJs on Texas Courts Online.

Third National Judicial Leadership Summit on the Protection of Children

2009-10-18T14:31:00.000-05:00

Texas just finished hosting this major national work Summit for state leaders in child welfare, and we are feeling very good about the successful conclusion of the event. The proof will be in the pudding of ensuing work (more on this later) that we and 47 other states perform, carrying out plans developed at the Summit to improve judicial leadership and decisions affecting children in foster care, their families, and a universe of stakeholders.

Congratulations to Justice Harriet O'Neill and the Texas Permanent Judicial Commission for Children, Youth & Families, and many thanks to the National Center for State Courts, Casey Family Programs, the National Council of Juvenile and Family Court Judges, the Pew Charitable Trusts, RGK Foundation and a number of other generous sponsors. My personal thanks as well as congratulations go out to Dick Van Duizend, Kay Farley, Lee Suskin, Val Hansford, Myra Miranda and Nora Sydow of NCSC, under the leadership of Mary McQueen; Tina Amberboy, Kristi Taylor, Teri Moran and Bryan Wilson of the Children's Commission; Justice O'Neill and her assisant Sylvia Griego; security detail led by Tawana Henderson of the Department of Public Safety and Terry Cobbs of the Department of Criminal Justice - Office of Inspector General; and the Texas team made up of Judges John Specia, Dean Rucker, Patricia Macias, Darlene Byrne, Robin Sage, Camile DuBose and Karen Bonicoro, Texas Center for the Judiciary staff Anissa Vila and Ginny Woods, Carolyne Rodriguez of Casey, and HHSC/DFPS leadership Anne Heiligenstein, Joyce James, Fairy Rutland and Audrey Deckinga. Finally I wanted to say thanks to Bruce Robison and his band for a great show at the Bob Bullock Museum on Friday night.

William Wayne Justice

2009-10-14T08:55:00.000-05:00

Federal District Judge William Wayne Justice, a Texas hero, died yesterday. He was a great jurist, a supreme gentleman, a caring human, and a good friend to my partner Eden Harrington, who runs the William Wayne Justice Center for Public Interest Law at UT Law School.

My primary connection to Judge Justice was through the epic Ruiz class action prison conditions lawsuit. [Initial reported decisions at Ruiz v. Estelle, 503 F. Supp. 1265(S.D. Tex. 1980) aff'd in part and vacated in part, 679 F.2d 1115, amended in part, 688 F.2d 266 (5th Cir. 1982), cert. denied, 460 U.S. 1042, 103 S. Ct. 1438, 75 L. Ed. 2d 795 (1983).] In December of 1986, I attended my first meeting as counsel to the Texas Senate Committee on Criminal Justice, where Assistant Attorney General F. Scott McCown briefed us on a recent ruling. Judge Justice found the state in contempt for failing to meet terms of the Crowding Stipulation and ordered fines up to $800,000 a day, or $24 million a month, to be levied upon the state beginning April 1, 1987. Judge Justice stipulated the fines could be avoided if the state would hire more medical and security personnel, segregate violent and nonviolent offenders, improve inmate classification system, provide more recreational facilities and care for handicapped offenders, and provide single cells for some classes of inmates. The 70th Legislature enacted SB 215 (by McFarland/Hightower, and my first big bill to staff) which was designed to tighten provisions of the Prison Management Act (PMA) to ease population pressures by expanding the pool of nonviolent offenders eligible for release The bill also required that intensive supervision programs for inmates on parole be expanded, and approved a $12.6 million emergency appropriation to be applied toward bringing TDC into compliance. In March 1987, Judge Justice acknowledged the swift action by the state to move TDC toward compliance and suspended the fines set out in the December 1986 order, which were later vacated.

Thus began my 15 year involvement with what ended up as a 30 year-long lawsuit (beginning in 1972), and my observation of Judge Justice. In October of 2001, Judge Justice issued an order detailing remedial actions in the three remaining areas he had identified in the final (1999) round of litigation, and set a target date for the end of jurisdiction on July 1, 2002. The state appealed the order but did not seek a stay pending the appeal. Another round of site visits by plaintiffs’ counsel and experts ensued, as well as significant document discovery and reports filed with the court. In the weeks before the Plaintiff’s June 1, 2002 deadline to object to termination, Plaintiffs’ counsel Donna Brorby engaged in extensive discussions with TDCJ management and the Office of the Attorney General. The deadline was extended by agreement to June 10th, and on June 7th, the parties met with Judge Justice to convey Plaintiffs’ counsel’s decision not to object to termination. On June 17, 2002, the judge signed a one-page order dismissing the case.

William Wayne Justice cared about all Texans and he cared about the rule of law. He took many courageous stands as a judge, and he and his family suffered the consequences. He left an indelible mark on Texas criminal justice and the law of prisoner rights nationwide, as well as in many other areas of law with which I am much less familiar. He will not be forgotten.

Timothy Cole Advisory Panel on Wrongful Convictions

2009-09-28T13:27:00.000-05:00

Timothy Cole was convicted and sentenced to 25 years in prison for the 1985 rape of 20-year-old Michele Mallin. He maintained his innocence, but it was not confirmed by DNA until years after his 1999 death, when another inmate confessed to the rape.

Based on this young man’s story the Texas Legislature passed HB 498 establishing the Timothy Cole Advisory Panel on Wrongful Convictions. This legislation went into effect September 1, 2009. The advisory panel was established to assist the Task Force on Indigent Defense to study and prepare a report regarding the causes of wrongful convictions, procedures and programs that may be implemented to prevent future wrongful convictions, the effects of state law on wrongful convictions, and whether the creation of an innocence commission to investigate wrongful convictions is necessary. Members of the advisory panel can be viewed under the members section of this page.

The director of the Task Force on Indigent Defense, Jim Bethke, is designated as the presiding officer of the advisory panel. The legislation also provides that advisory panel shall meet at the call of the presiding officer but not less than three times in person and as needed by telephone conference call.

An initial planning meeting is expected be held in the Fall of 2009, to discuss the scope of the study and develop a work plan to accomplish the directives of the legislation. A second meeting is expected to be held to review the work completed to date sometime in April/March 2010 with a final meeting sometime in October/November 2010. The final recommendations will be presented to the full Task Force on Indigent Defense at its November/December 2010 meeting. A final report will be sent to the Governor, Lt. Governor, the Speaker of the House, and the standing committees of each house of the legislature with a representative serving on the Advisory Panel.

Jim and I will keep you informed as this effort develops.

Integrated Justice

2009-09-28T12:53:00.000-05:00

No, this does not refer to racial integration or addressing disproportionality in the justice system (perhaps a future topic here). I am referencing the need for a new local-state, judicial-executive, public-private partnership supporting justice system data exchanges to increase efficiency, improve key decisions, and promote positive outcomes in criminal, juvenile, and family justice.

The National Information Exchange Model (NIEM) and its predecessor effort (“GJXDM”) define a method for developing information exchanges across disparate justice entity databases, using Information Exchange Package Documentation (IEPDs) to define exchanges of information that need to occur as cases and people pass through a justice process. The Texas Path to NIEM began with TIJIS and criminal justice agencies, and has led to adoption of a rule by JCIT and the Judicial Council, 1 TAC §177.2, directing conformance to NIEM and the IEPD construct. It also led to the development of IEPDs for 28 criminal justice business processes, focused on the hand-off of a sentenced prisoner from county to prison, and production of the “pen packet” information that accompanies the prisoner under article 42.09, Section 8, Code of Criminal Procedure.
The NIEM model is expanding to include the Texas version of national efforts to share data between courts and child welfare agencies (DFPS in Texas), and courts and child support agencies (OAG in Texas).

Alongside and intertwined with the emergence of standards for sharing information are the evolution of e-filing , and the movement toward second and third generation case management systems for courts and counties. The JCIT will discuss these related topics at its first meeting under new Chair, Justice Rebecca Simmons, on Wednesday Sept. 30, 1:00, at the Texas Law Center.