The Texas Supreme Court enacted amendments to the Texas Rules of Civil Procedure effective January 1 that will have a big impact on family law attorneys. We all will need to calendar deadlines differently and our pleadings and orders are going to look different. Service by e-mail is now allowed and service by delivery services is now recognized.
These big changes in rules include:
1. Mandatory Electronic Filing. New Rule 21(f) requires attorneys in civil cases to electronically file court documents “in courts where electronic filing has been mandated.” E-filing is mandatory in Harris and Fort Bend Counties and permissive in Galveston, Brazoria, Montgomery and Chambers Counties. Electronic filing will be mandatory in all Texas counties by 2016.
2. E-filed documents must be in searchable PDF format. Electronically filed documents are required to be in text-searchable PDF format (most documents scanned at the copier are not in this format) per Rule 21(f)(8)(A). Electronic documents “must” be directly converted to PDF rather than scanned, if possible. Rule 21(f)(8)(B). Recent versions of Word and Word Perfect allow you to convert a document to searchable PDF from within the word processor. Some efiling service providers, such as ProDoc, can convert scanned PDF documents to searchable PDF as can the full version of Adobe Acrobat.
3. Electronic Signatures. Rule 21(f)(7) states that electronic signatures can either be an electronic image of the signature or a “/S/” followed by the typed name on the same line. Example: /S/ Greg B. Enos.
4. Service By E-mail. Rule 21a(a) requires that documents filed electronically with the court must be served electronically through the electronic filing manager if the attorney or party has an e-mail address on file with the electronic file manager. If the opposing attorney does not have an email address on file with the electronic file manager, documents filed electronically with the court can be served using any other approved method. Documents that are not filed with the court (such as discovery) can now be served via e-mail, commercial delivery service, in person, by mail or fax or by “such other manner as the court in its discretion may direct.”
5. Signature blocks on pleadings must include the email address of attorneys or pro se litigants. Rule 57.
6. Service by Delivery Service. Rule 21a(a)(2) now recognizes service by “commercial delivery service” as an acceptable form of service. This would include FedEx but probably also your local courier service which is “commercial” if they charge you.
7. Service by Fax No Longer Extends Deadlines by 3 days. The Texas Supreme Court revised Rules 4 and 21a to remove the the provision that added three days to any deadline when service of the document was made by fax. When receiving service via fax, the applicable response deadline is simply what the Rules prescribe without any three-day addition. The three-day extension of a deadline authorized in Rule 21a(c) now only applies when service is accomplished by old fashioned snail mail.
8. When is service complete? Rule 21a(b) says that service by mail is effective upon deposit of the postpaid, properly addressed document in the mail. This “mailbox” rules has now been extended to the newly allowed service by commercial delivery services. Service by fax is complete upon receipt. As before, a fax received after 5:00 p.m. local time of the recipient is deemed served the next day. Electronic service is complete upon transmission to the serving party’s electronic service provider. Rule 21(f)(5) says that a document filed with the court electronically is timely filed if it is electronically filed at any time before midnight (in the court’s time zone) on the filing deadline. If a document is filed electronically on a Saturday, Sunday or legal holiday, it is deemed filed on the next day that is not a weekend or holiday.
9. Sensitive Data Must Redacted from Court Filings. A new Rule 21c defines “sensitive data” and prohibits its inclusion in any document filed with the court unless specifically required by statute, court rule, or administrative regulation. Sensitive data includes driver’s license numbers, passport numbers, social security numbers, tax identification numbers, bank account numbers, credit card numbers, or a minor’s name, address or birth date. Sensitive data must be redacted prior to filing, but the filing party must retain a copy of the unredacted version. If a document containing sensitive data is improperly filed, Rule 21c does not permit a clerk to refuse to file the document. But, the rule does allow a clerk to give the filing party a deadline to resubmit a redacted, substitute document. The prohibition of sensitive data in Court filings does not apply to wills and documents filed under seal. This new rule will require family lawyers to stop using the names of minors in case captions and in pleadings. Presumably, we should always be using a child’s initials. However, Texas Family Code Sec. 102.008(b) specifically states that a petition in a suit affecting the parent child relationship “must include: …(2) the name and date of birth of the child…” New Rule 21c(d) requires notice to the clerk if a document must be filed that contains sensitive data. Family Code Sec. 102.008(a) says that SAPCR pleadings shall be entitled “In the interest of ___, a child.” That section does not say the child’s full name must be used so presumably the child’s initials can always be used in the caption. Rule 21c would apply to affidavits we often file along with pleadings as well as exhibits to pleadings. Business records filed with affidavits with the clerk under Evidence Rule 803(6) or 902(10), such as school, medical or financial records would be filled with information that must be redacted.