Since Texas Governor Greg Abbott declared a state of disaster in all 254 counties of the State of Texas in response to the Covid-19 pandemic in March of 2020, the Texas Supreme Court (the Court) has issued a series of Emergency Orders designed to protect individuals appearing before a Texas court from infection while allowing proceedings to continue. As of December 31, 2022, the Court had issued fifty-nine Emergency Orders allowing court participants to, among other things, appear for any hearing, deposition, or other proceeding remotely; consider as evidence sworn statements or testimony given remotely; and conduct court proceedings away from the court’s usual location with reasonable notice and access to the participants and the public.¹

On January 27, 2023, the Court published a “Final General Emergency Order Regarding the COVID-19 State of Disaster” (the Final Order), renewing as amended the Fifty-Ninth Emergency Order, which was set to expire on February 1, 2023.² While prior Emergency Orders applied the guidance to “any case, civil or criminal,” the Final Order’s rules for remote appearances and testimony only apply to “any criminal case.” Finally, as implied by the order’s title, the Final Order states it is intended to be the final renewal of the Emergency Order related to remote appearances in the wake of the state of disaster, and will expire on March 1, 2023.

The Final Order necessarily raises questions from stakeholders regarding civil court remote practices once the Order has expired. In answer, on January 27, the Court also released the “Final Approval of Texas Rules of Civil Procedure 21d and 500.10 and of Amendments to Texas Rules of Civil Procedure 21, 500.2, 501.4, and 505.1” (the New Rules), effective February 1, 2023.³ The New Rules permanently adopt standards for conducting remote proceedings. Going forward, all Notices of Court Proceedings must include information needed for participants to appear, including the location of the proceeding or instructions for joining electronically, the court’s contact information, and instructions for submitting evidence. Most notably, the New Rules implement Rule 21d, which states that while the default for civil court proceedings will be for court participants to appear in person, “upon notice by a party or the court, a court may allow or require a participant to appear at a court proceeding by videoconference, teleconference, or other available electronic means.” Remote appearances are, however, limited. A court must not require (1) a party or lawyer to appear electronically for a proceeding in which oral testimony is heard, absent good cause or agreement; or (2) a lawyer, party, or juror to appear electronically absent agreement. Rule 21d also provides a party the opportunity to object to any method of appearance, and provides factors for the court to consider in determining good cause. Finally, the rule allows judges to appear electronically, but the judge must conduct the court proceeding from a location required by law.

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For many individuals, the Covid-19 pandemic began a period marked by ever-changing rules. The same can be said for attorneys and anyone with business before the courts, where interim orders and extended delays became the norm. Now, with the Final Order and the New Rules, Texas courts offer some long sought predictability and stability by permanently enshrining—at least for civil cases—the option for court participants to appear for proceedings remotely. Attorneys participating in proceedings before any state court in the State of Texas should make note of this newly permanent option for civil matters, and particularly its limitations, as they strategize going forward.

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