(a) Definitions.
- (1) “Court proceeding” means an appearance before the court, such as a hearing or trial.
- (2) “Participant” means any party, attorney, witness, court reporter, or juror who participates in a court proceeding.
(b) Participant Method of Appearance.
- (1) Unless the notice of court proceeding states otherwise, a person who participates in a court proceeding does so by physical presence in the courtroom. Upon appropriate 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, except as otherwise provided in (2).
- (2) A court must not require:
- (A) a party or lawyer to appear electronically for a court proceeding in which oral testimony is heard, absent good cause or the agreement of the parties; or
- (B) a lawyer, party, or juror to appear electronically for a jury trial, absent the agreement of the parties.
(c) Judge Method of Appearance; Location. A judge may appear at a court proceeding by videoconference, teleconference, or other available electronic means. However, even if appearing electronically, a judge must conduct the court proceeding from a location required by law.
(d) Objection. A party may object to any method of appearance, stating good cause for the objection. The objection must be made within a reasonable time after the party receives notice of the appearance. The court may, but is not required to, conduct a hearing on the objection. Before proceeding by the objected-to method of appearance, the court must rule on the objection and timely communicate the ruling to the parties in a written order or on the record.
(e) Factors. In determining good cause under this rule, the court should consider factors such as:
- (1) case type;
- (2) court proceeding type;
- (3) the number of parties and witnesses;
- (4) the complexity of the legal and factual issues;
- (5) the type of evidence to be submitted, if any;
- (6) technological restrictions such as lack of access to or proficiency in necessary technology;
- (7) travel restrictions such as lack of transportation, distance, or inability to take off work;
- (8) whether a method of appearance is best suited to provide necessary language access services for a person with limited English proficiency or accommodations for a person with a disability; and
- (9) any previous abuse of a method of appearance.
(f) Open Courts. If a court conducts a court proceeding in which all participants appear electronically, the court must:
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(1) provide reasonable notice to the public of how to observe the court proceeding; and
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(2) provide the public the opportunity to observe the court proceeding, unless the court has determined that it must close the court proceeding to protect an overriding interest, considered all less-restrictive alternatives to closure, and made findings on the record adequate to support closure.
Official Notes and Commentary
Comment to 2023 change: New Rule 21d clarifies procedures for appearances at court proceedings. Paragraph (a) defines “court proceeding” and “participant.” Paragraph (b) governs a participant’s method of appearance. Certain statutes expressly prohibit or further permit electronic appearances, in which case the governing statute applies. Paragraph (c) provides that the judge may appear by electronic means, but it requires the judge to appear electronically from a location required by law. See, e.g., T EX. C ONST. art. V, § 7(d); TEX. GOV ’ T C ODE §§ 24.030(a), 26.002(c). Nothing in paragraph (c) permits the judge to conduct a proceeding away from a location required by law. Paragraph (d) addresses objections to any method of appearance, and paragraph (e) addresses good-cause factors. Paragraph (f) recognizes the public’s right to reasonable notice of and access to a fully electronic proceeding unless there is an overriding interest. A court should rarely close a court proceeding from public observation, and in such an exceptional case, the court must use the least restrictive measure to protect the overriding interest. S ECTION 2. I NSTITUTION OF S UIT