11729 1 2 3 4 5 6 7 * * * * * * * * * * * * * * * * * * * * 8 MEETING OF THE SUPREME COURT ADVISORY COMMITTEE 9 August 13, 2004 10 * * * * * * * * * * * * * * * * * * * * 11 12 13 14 15 16 17 18 Taken before D'Lois L. Jones, Certified 19 Shorthand Reporter in Travis County for the State of Texas, 20 reported by machine shorthand method, on the 13th day of 21 August, 2004, between the hours of 9:01 a.m. and 4:49 p.m., at 22 the Texas Law Center, 1414 Colorado, Room 101, Austin, Texas 23 78701. 24 25 Anna Renken & Associates (512) 476-7474 11730 1 INDEX OF VOTES 2 Votes taken by the Supreme Court Advisory Committee during this 3 session are reflected on the following pages: 4 Vote on Page 5 6 Rule 226a 11792 Rule 103 11893 7 TRAP 25 11943 TRAP 25 11946 8 TRAP 25 11947 TRAP 25 11952 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Anna Renken & Associates (512) 476-7474 11731 1 *-*-*-*-* 2 CHAIRMAN BABCOCK: We're on the record, and 3 hello to everybody in Los Angeles down there. 4 MR. YELENOSKY: Chip, come over here again where 5 we can hear you. 6 CHAIRMAN BABCOCK: I don't know who set the room 7 up, but we'll try to make sure it doesn't get set up this way 8 next time. You need binoculars to see people at the end of the 9 table there. 10 MR. YELENOSKY: Can you come down here? 11 HONORABLE LEVI BENTON: Why don't they put you 12 in the center with the court reporter? 13 CHAIRMAN BABCOCK: Yeah. That might be a good 14 idea. Maybe at the first break we'll move. Would that be all 15 right, or should I do it now? 16 MR. YELENOSKY: Do it now. 17 CHAIRMAN BABCOCK: Okay. We'll do it now. Off 18 the record. 19 (Off the record from 9:02 a.m. to 9:03 a.m.) 20 CHAIRMAN BABCOCK: Now we're reconfigured, which 21 is a little easier for me. Welcome everybody, and I guess some 22 of you have met Lisa Hobbs, who is a great improvement over 23 Chris Griesel, I think everybody will agree. And Lisa started, 24 what, a couple months ago, three months ago? 25 MS. HOBBS: Yes, June 14th. Anna Renken & Associates (512) 476-7474 11732 1 CHAIRMAN BABCOCK: June 14th. So she is the new 2 rules attorney for the Court; and Justice Hecht will not be 3 able to be here until noon, but he'll be here then; and Justice 4 Jefferson said he's available to come over here at a moment's 5 notice if we have any trouble or a fight breaks out; and he's 6 sitting by his phone, but I think we'll try to get through 7 things without that. 8 We'll defer Justice Hecht's report from the 9 Court until he gets here obviously, and that will take us right 10 into the pattern jury charge issues that Judge Sullivan has 11 lead the subcommittee on, and they have prepared some written 12 material, which you got earlier this week and have been on the 13 website. Judge Sullivan. 14 HONORABLE KENT SULLIVAN: Well, I hope everyone 15 had an opportunity to review the written materials and if you 16 weren't here at the last meeting had an opportunity to review 17 the discussion at the last meeting because we did cover a fair 18 amount of ground the last time; and unless you think otherwise, 19 Mr. Chairman, I thought we would forego retracing any of those 20 steps and jump right into what the subcommittee considered. I 21 think we did reach a number of conclusions. 22 First, of course, is the Rule 292 and Rule 226a. 23 They will need to be amended. We've had submitted one 24 proposal, a specific proposal relative to the amendment of 292. 25 We have two alternatives for your consideration and debate Anna Renken & Associates (512) 476-7474 11733 1 relative to the amendment of 226a; and if I can digress for one 2 moment with I guess something of a paid political announcement, 3 I thought I would also make note of the fact before we went by 4 it that in doing this work we, of course, had to look at the 5 admonitory instructions in toto in 226a; and while we have no 6 proposal that we would try and make, taking it outside the 7 scope of today's work to talk about some comprehensive 8 amendment for those instructions, I think there are a 9 significant number of people on the committee who think it 10 would be a worthwhile endeavor. 11 PROFESSOR DORSANEO: Mr. Chairman? 12 CHAIRMAN BABCOCK: Yeah, Bill. 13 PROFESSOR DORSANEO: Just for the record, the 14 jury charge task force that handed in its report in 1996 or 15 1997 did that, and that material has been included in the -- 16 you may remember the recodification draft that was recommended 17 to the Court about the same -- at about the same time, so maybe 18 it should be looked at again, but a lot of work has already 19 been done on that, and it's on the shelf. 20 HONORABLE KENT SULLIVAN: Just so Professor 21 Dorsaneo doesn't think the subcommittee has been completely 22 asleep at the wheel, the Chair and I had that very discussion 23 earlier, so we came across that work product, and I think that 24 a number of us are in agreement with it. One other thing 25 before we get off that subject that I would note that I think Anna Renken & Associates (512) 476-7474 11734 1 is useful for consideration as well is whether or not as part 2 of this process of creating jury instructions -- and this is 3 something that could be applicable to the PJC process as well 4 -- is whether we should consider more of an interdisciplinary 5 approach; by that, to have people involved in this process who 6 have expertise in areas such as psychology, speech, 7 communication and the like, so that we could field test or gain 8 some scientific measurement of the effectiveness of the jury 9 instruction; that is, whether the jurors actually understand 10 the instructions and the likelihood that they will follow them. 11 Enough of the digression. As to Rule 292, I 12 thought we would start there. I hope that everyone has had a 13 chance to look at that proposal. That's the most 14 straightforward proposal that's on the table, and there are 15 actually -- excuse me -- very few changes that were proposed 16 other than to literally insert the language from the statute 17 and to divide the rule into section (a) and (b) for reasons 18 that I think are self-evident upon reading the rule or the 19 proposed rule. 20 The other change was a note that I guess Bill 21 Edwards gets the credit for, and that is you'll see the words 22 "or more" inserted because I think there was a technical 23 correction that the committee believed was necessary. And I 24 think you'll see it in boldface there. Mr. Chairman, I don't 25 know how you want to proceed. Do you want to stop at this Anna Renken & Associates (512) 476-7474 11735 1 point and take a look at 292? 2 CHAIRMAN BABCOCK: Yeah. Let's take a look at 3 292 and if anybody has any comments let's talk about it. Is 4 everybody with us? The subsection (a) starts with new language 5 "except as otherwise provided in subsection (b) of this rule" 6 and then goes on to throw in the word "10 or more" and then 7 there is a subsection (b) saying that "a verdict can be 8 rendered awarding exemplary damages only if the jury is 9 unanimous in finding liability in the amount of exemplary 10 damages." It seems straightforward. Anybody have any comments 11 on it? No objections? See, I told you this was going to be 12 easy. Paula, you on top of it? 13 MS. SWEENEY: Yes, sir. I'm all over it. Where 14 are you? 15 CHAIRMAN BABCOCK: We're talking about Rule 292 16 and the proposed amendments to 292 in order to implement House 17 Bill 4 with respect to unanimous verdict for exemplary damages. 18 Judge Patterson, everything okay? 19 HONORABLE JAN PATTERSON: Yes. 20 CHAIRMAN BABCOCK: This may be the first in the 21 history of this committee, there are no comments made. 22 HONORABLE JAN PATTERSON: I think we're all sort 23 of taken aback by the distances between us. 24 CHAIRMAN BABCOCK: Yeah, I know. Okay. Well, 25 if we don't have any comments about it then let's go on to the Anna Renken & Associates (512) 476-7474 11736 1 easy stuff. 2 MS. SWEENEY: Well, I apologize for walking in 3 just a tad late. We might as well get it on the record. There 4 is some considerable discussion about whether or not the 5 predicate questions on liability should require a unanimity 6 standard and as to whether or not that is what the Legislature, 7 A, intended, or B, wrote, but that's the -- that's the only 8 thing I know of that has a debate going on. 9 CHAIRMAN BABCOCK: Well, we talked about it to 10 some degree last meeting, and the view of the subcommittee and 11 I think the overall committee is that the House Bill 4 did 12 require a unanimous finding on the liability for exemplary 13 damages as well as exemplary damages, as to the amount. 14 MS. SWEENEY: Well, that's as to finding gross 15 negligence, but not as to finding negligence and proximate 16 cause. 17 CHAIRMAN BABCOCK: Right. Paula, are you 18 talking about 226a? 19 MS. SWEENEY: Yes. 20 CHAIRMAN BABCOCK: Okay. We're not there yet. 21 MS. SWEENEY: Someday I will come in on time and 22 then I will try and get it. 23 MR. HAMILTON: Chip? 24 CHAIRMAN BABCOCK: Yeah, Carl. 25 MR. HAMILTON: However, the use of the phrase Anna Renken & Associates (512) 476-7474 11737 1 "unanimous in finding liability" on 292, does that necessarily 2 include all predicate issues on liability? 3 HONORABLE KENT SULLIVAN: The language that was 4 chosen is directly out of the Civil Practice and Remedies Code. 5 MR. HAMILTON: Out of the statute, yeah. 6 HONORABLE TOM GRAY: Well, that's never stopped 7 us from modifying it before. 8 CHAIRMAN BABCOCK: We've never intentionally 9 overridden the Legislature, I don't think. For example, Carl, 10 in a public figure libel case where punitive damages can only 11 be awarded if there's a finding of, quote, actual malice, my 12 understanding is this would require a unanimous vote on actual 13 malice. But that is also an element of -- in a public figure 14 libel case, that is also an element of the claim, so it has -- 15 it wears two hats in that context. That may be unique, but 16 that's at least one where that would happen. 17 MR. ORSINGER: Chip? 18 CHAIRMAN BABCOCK: Yeah, Richard. 19 MR. ORSINGER: Because we've used the statutory 20 language, I think we've carried forward the ambiguity that's 21 unresolved in some of our minds, and I think that that 22 ambiguity is going to find its expression in the other 23 amendments we have here. I mean, it seems to me like we may 24 not agree on what "ununanimous in regard to finding liability" 25 means, but that is what the statute says, and we don't actually Anna Renken & Associates (512) 476-7474 11738 1 have to resolve that here, but we are going to have to resolve 2 that when we get down to the specifics of the jury charge. 3 CHAIRMAN BABCOCK: Yeah. 4 MR. LOPEZ: Yeah. 5 CHAIRMAN BABCOCK: Okay. Any more comments on 6 292? I knew we wouldn't get by it without at least some. Any 7 more comments on 292? Okay. Judge Sullivan, do you want to 8 get into 226a? 9 HONORABLE KENT SULLIVAN: Yes, sir. 10 HONORABLE LEVI BENTON: Mr. Chairman? 11 CHAIRMAN BABCOCK: Yeah. 12 HONORABLE LEVI BENTON: For one second before we 13 get to the jury charge, I don't know that I agree with what 14 Richard just suggested because the PJC, the suggestions in the 15 PJC are not binding on any court, and it might be that we might 16 want to consider adding a footnote to 292 to expressly say or 17 ask the Court to expressly say that's their construction of it, 18 because the PJC is not binding. 19 MR. ORSINGER: What I had reference to is the 20 instructions in 226a about what has to be in each jury charge, 21 and that's issued by the Supreme Court in connection with the 22 Rules of Procedure and not by PJC committee. 23 HONORABLE LEVI BENTON: Fair enough. You know 24 what, you're right. When you said "relative to the jury 25 charge" I didn't think 226a. I was thinking the PJC Anna Renken & Associates (512) 476-7474 11739 1 MR. ORSINGER: I should have been more specific. 2 I regretted it the second I said it. 3 CHAIRMAN BABCOCK: Okay. Let's go to 226a, 4 Judge Sullivan. 5 HONORABLE KENT SULLIVAN: Motion to strike. 6 CHAIRMAN BABCOCK: Yeah. 7 HONORABLE KENT SULLIVAN: A couple of 8 housekeeping matters I think relative to 226a, and I guess I 9 would go ahead and direct you to the written material so that 10 you can follow along in the specific proposal. You'll note 11 that there are several things that you received. One was a 12 background memorandum and then at least two other documents 13 containing two alternative proposals that I think both had some 14 explanation and sample jury charge with it for illustration 15 purposes. 16 In connection with the changes that are really 17 the focus of our discussion, I think if you look at Rule 226a 18 under section Roman III, paragraph (6), those are some specific 19 instructions to the jurors relative to the voting requirements 20 to reach a legal verdict, that that language will need to 21 change because obviously we are introducing the requirement of 22 a unanimous verdict under these certain specified conditions. 23 So the words "unless otherwise instructed" at a minimum would 24 have to be inserted into that particular paragraph, and there 25 are also some other technical changes in that particular Anna Renken & Associates (512) 476-7474 11740 1 paragraph. 2 As a practical matter, if you parse the existing 3 language a person could reasonably construe the existing 4 language to mean that if you had 10 persons in favor of all of 5 the set of questions in a particular verdict but 11 persons in 6 favor of one, that it was not a legal verdict. I think it's 7 simply misleading or ambiguous language, and the suggestion was 8 to change it so that it is technically correct. 9 I don't know whether I've made that clear or 10 not, but if you compare the existing language in paragraph (6) 11 to the proposed language, I think you'll see a modest change in 12 the semantics of that paragraph. 13 The other thing that I will note that is in the 14 proposal and this may go beyond the scope of what we have 15 before us today and I will rely on the Chair to say so, but the 16 language contained in the certificate several of us thought was 17 particularly obtuse; that is, it is ambiguous and unclear what 18 the jury is being instructed to do by way of the certificate 19 and what they are certifying, and there is technical changes to 20 that language that hopefully makes it clear. That is intended 21 to be completely noncontroversial and just the use of English 22 as opposed to Latin, if you will, so that the jurors understand 23 exactly what they're being asked to do. It really doesn't have 24 any substantive impact on the debate that I think we will have 25 on the question of whether or not to predicate that we're about Anna Renken & Associates (512) 476-7474 11741 1 to get into, but I did want to explicitly note that in passing 2 before we went on. 3 Now, as previously mentioned, there are two 4 different proposals on how to handle the necessary changes for 5 226a that are mandated by the HB4 unanimity requirement, and I 6 think you would frame the issue primarily on whether or not to 7 condition questions on exemplary damage liability on a 8 unanimous finding of underlying liability or actual damages. 9 Actual damage liability, of course, being the legal predicate 10 for exemplary damages. I think it's worth noting to hopefully 11 avoid confusion on this particular issue to say that the 12 proposed predication of the exemplary issues on actual damage 13 liability issues does not in any way affect the standard for 14 actual damage liability. By that I mean that it is clear and 15 there is certainly no dispute that a jury can still render a 16 verdict for actual damages by a 10 to 2 vote, so I hope that is 17 clear. And in that regard, there is a sample jury charge that 18 was provided with the materials, and hopefully that gives some 19 illustration of how this would -- would work. 20 The rationale for predication of exemplary 21 damage liability is in two basic parts. One, the thought there 22 is a legal requirement for it; and, second, the thought that 23 there are practical reasons to do so. As far as the legal 24 requirement is concerned -- and we did touch a number of these 25 bases in our last meeting, so I'll try and just touch on it Anna Renken & Associates (512) 476-7474 11742 1 just briefly. If you take the example of a case involving 2 claims of simple negligence and gross negligence and you have a 3 verdict that is returned, and on the actual damage, i.e., the 4 simple damages case, you get a 10 to 2 verdict and on exemplary 5 you get a 12 to 0 as would be required under the mandate of 6 HB4, you have what is at least arguably an ambiguous situation 7 and a potential legal conflict in those answers. That is, you 8 do not know upon what questions the two jurors dissented; and, 9 query, can a juror vote, for example, that there was no 10 negligence in the original issue and then turn around and vote 11 that the same conduct constituted gross negligence without it 12 being a legal conflict and, at least technically speaking, a 13 legally defective verdict. 14 Several of us thought that at a minimum a 10 to 15 2, 12 to 0 verdict being returned without predication would be 16 a verdict subject to legal uncertainty and attack, and I think 17 that there is at least some suggestion from fairly recent case 18 law that suggests a clear concern about the prospect of a jury 19 verdict that is based on an impermissible theory or some 20 defective legal basis. I think that is at least in part a 21 message that one can obtain from Castille and its progeny. 22 The other area that I mentioned is the concern 23 over the potential for mistrial, and I think the concern is 24 focused on fairly limited situations, but they are peculiarly 25 the ones that are in focus in the context of the rule change Anna Renken & Associates (512) 476-7474 11743 1 that we're talking about. That is, obviously if you had a 2 unanimous jury verdict, it is of no moment in the context of 3 the rule change that we're discussing. Similarly, if you have 4 a 10 to 2 verdict and 10 people, all with a consensus that 5 there is no gross negligence and/or no exemplary damage 6 liability, that is of no moment. What I think you would have 7 to be worried about is the situation where you have a 10 to 2 8 verdict with people believing -- let me step back. With the 10 9 jurors believing that there is actual damage liability and 10 those same 10 also believing that there is punitive damage 11 liability and then having a hard division between that group of 12 10 and, for the purpose of this example, the group of 2 13 dissenters, because without predication, you face the prospect 14 that that jury will, in fact, be allowed to deliberate on 15 exemplary damage liability and undermine theoretical example. 16 They will arguably never get to 12-0 because, 17 again, in my hypothetical example you have a hard division, 10 18 to 2, and the 2 are committed to the notion that there is no 19 negligence, much less no gross negligence, and you have a 20 situation where it's probably going to be difficult for them to 21 get to 10 "no" votes necessary to dispose of the exemplary 22 damage liability issue and to render a verdict, and I hope I've 23 explained the concern or framed it so that everyone understands 24 what it is. 25 The point being is that that is a situation in Anna Renken & Associates (512) 476-7474 11744 1 which at least several of us thought there was an enhanced 2 chance for a mistrial and, in fact, one in which that jury 3 shouldn't even be involved in deliberating the exemplary damage 4 liability because of the hypothetical findings they have made, 5 and one of the salutary effects of predication is they would 6 not deliberate exemplary damage liability. They would simply 7 answer by way of the first jury certificate, and the verdict 8 would be rendered. It would be a legal verdict and would be 9 acceptable to the court. 10 All right. Enough said about the first 11 proposal. The second proposal, Alistair Dawson put in a lot of 12 work on that, and I understand at the last minute he had an 13 emergency come up and was not able to be here this morning. 14 Paula, do you mind talking about that? Or I can try and phrase 15 through the outline. Hopefully everyone has it in a written 16 form. 17 MS. SWEENEY: Well, I got the e-mail this 18 morning, so I'd rather you led off. 19 HONORABLE KENT SULLIVAN: Well, I think the 20 essence of the proposal is to not predicate. You see the 21 overview that he has provided that has the rationale for that 22 with the notion that you could end up with 10-2, 12-0, that 23 that is what is mandated by the statute and no more, and the 24 question of whether or not there may be a legal defect or a 25 problem would be taken up as we currently take up any other Anna Renken & Associates (512) 476-7474 11745 1 issue. You wait until the jury renders its verdict and then 2 you look at the verdict and deal with it as such. 3 I think Alistair's point was to say that the 4 statute goes so far, goes no farther. It does not mandate the 5 sort of predication that we're discussing and that it's overly 6 aggressive for us to insert this sort of predication. I hope 7 I've done justice to his position, but there are other members 8 of the committee who may want to add to that. 9 MS. SWEENEY: The concern is that there are a 10 lot of ways that a jury could get to a 10 -- to 10-2 negligence 11 and proximate cause finding and still be unanimous on the gross 12 negligence and exemplary damage findings. Alistair's example 13 is you could easily have two jurors who agree that there is 14 negligence and agree that there is gross negligence and agree 15 that there should be exemplary damages awarded but disagree for 16 some reason on the issue of proximate cause as to the 17 underlying negligence question, and therefore, you have a 10-2 18 negligence proximate cause answer, which is perfectly 19 permissible, obviously, under existing law. 20 And there's never -- there was never any 21 discussion in any of the legislative proceedings dealing with 22 this as to making negligence and proximate cause a unanimous 23 requirement. Raising that burden was never ever the subject of 24 discussion. It was always as to gross negligence and exemplary 25 damage, and so what Alistair has encapsulated in his memo as Anna Renken & Associates (512) 476-7474 11746 1 that part of the conversation is that those of us who feel that 2 way, feel that it -- that by changing the language as to the 3 underlying submission, this committee or the Court would be 4 going even beyond what the Legislature did in raising the 5 burden of proof on plaintiffs where even this Legislature 6 didn't do so and that there are a lot of examples that could be 7 postulated as to how you could get a 10-2 finding on the 8 underlying liability with a 12-0 finding on gross and exemplary 9 damages without having a conflict that would result in 10 mistrial; and, lastly, for this committee to say, well, we're 11 going to raise the burden of proof, we're going to make it 12-0 12 on the underlying liability in order to protect plaintiffs from 13 potential mistrials or unfortunate appellate decisions is 14 putting the cart before the horse. 15 This, I think, is a process that needs to work 16 its way through the courts, and that's by the process of trial, 17 verdict, judgment, and appeal by whichever party feels 18 dissatisfied, not by this committee or the Court deciding that 19 the Legislature said exemplary damages have to be predicated on 20 a unanimous finding of gross negligence, therefore, we're going 21 to go beneath that and even require unanimity on negligence and 22 proximate cause. So that's the view of those members of the 23 committee. 24 CHAIRMAN BABCOCK: Stephen. 25 MR. YELENOSKY: Of course, in one of your Anna Renken & Associates (512) 476-7474 11747 1 examples where you could have somebody vote "no" on negligence 2 because they don't think proximate cause exists, because the 3 question entails both proof of negligence and proximate cause 4 in one question, so obviously one solution for at least that 5 example would be questions that we could perhaps work that out 6 in some way. 7 But a more fundamental issue in my mind is if 8 there is a logical conflict and if it's even one juror who 9 thinks that it -- who answers that it is not negligent, and 10 they are not referring to proximate cause, they are referring 11 to negligence, and that it is gross negligence, that's a 12 logical conflict if you understand both questions. So that 13 juror either doesn't understand one or both questions or his or 14 her mind operates illogically. Given that premise, why would 15 you necessarily then default to one or other choice? Why 16 wouldn't you then point out the conflict and get the jury to 17 resolve it, because the reason for the conflict would be a 18 misunderstanding of either or both questions or a illogical 19 mental process. 20 CHAIRMAN BABCOCK: Judge Sullivan and then 21 Justice Bland. 22 HONORABLE KENT SULLIVAN: Paula was kind enough 23 to speak for Alistair and now on very dangerous ground I will 24 try and speak for Judge Peeples who weighed in several times on 25 the question of a proximate cause issue. He made the point Anna Renken & Associates (512) 476-7474 11748 1 that if a juror felt there was underlying negligence but no 2 proximate cause, that is a fact finder who has determined that 3 there is no liability. And liability for this underlying claim 4 is an absolute legal predicate for exemplary damages, so it was 5 his view, and it's one that I share, that it is -- that it 6 would not be legally correct to say that a juror who was voting 7 "no" on proximate cause is not in a legal conflict. 8 MR. YELENOSKY: I understand that, but what 9 about the juror who says it's black and it's white? They just 10 misunderstand the question. I mean, they either don't 11 understand what gross negligence is or they don't understand 12 what negligence is, because they say something is either black 13 or white and they say it's both black and white. Why isn't 14 that a question that needs to be sent back, the conflict 15 pointed out, and resolved by the jury? 16 HONORABLE KENT SULLIVAN: I'm not sure that 17 that's a question I can answer. I think that's a question 18 that's outside the box, but the presumption is that if the 19 juror is not following instructions, for whatever reason, maybe 20 they don't understand it, but they're not following 21 instructions; and if we presume that, I think, if you will, all 22 bets are off, so I'm not sure how you -- 23 MR. YELENOSKY: Well, another way to look at it, 24 if the first question was "Is there gross negligence?" and the 25 second question was "Is there negligence?" and they answered Anna Renken & Associates (512) 476-7474 11749 1 "yes" to the first one and "no" to the second one, would you 2 default to the first answer? 3 HONORABLE KENT SULLIVAN: No, I think there is a 4 legal conflict, and in my view the law now would say that if 5 you knew that there was a legal conflict that it's not a valid 6 jury verdict. 7 CHAIRMAN BABCOCK: Justice Bland. 8 HONORABLE JANE BLAND: Stephen, under this 9 proposal would these instructions make it clearer to the jury 10 that they would have to be unanimous to get to the exemplary 11 damages and thus give them that -- or alleviate that confusion 12 that you're concerned with? I don't know where we go with this 13 discussion, but I do think that it's difficult to -- once a 14 jury has rendered a verdict, to look at the verdict and then 15 say as a trial judge off the cuff, "Here's what I think is 16 wrong with your jury form. I need you to go back in and 17 deliberate some more," because, you know, I think judges are 18 just reticent to do that for fear of giving the jury a nudge, 19 which is really frowned upon. 20 And so, you know, my view on it is wherever we 21 come out, it ought to be in such a way that the jury's 22 instructions are clear and we wouldn't be contemplating sending 23 them back for continued deliberations based on the trial 24 judge's analysis of whatever the jury verdict -- 25 MR. YELENOSKY: Well, I understand, but there's Anna Renken & Associates (512) 476-7474 11750 1 not a whole lot of analysis because we all agree that there's 2 conflict. The question is once the conflict is recognized is 3 there a default or is the jury asked to resolve the conflict? 4 That's the basic question. Maybe the answer is there's a 5 default. 6 HONORABLE JANE BLAND: Right. But on the other 7 hand, the jury presumably is instructed at least on liability 8 and gross negligence together, maybe not on the amount of 9 punitive damages. That might be bifurcated, and so having the 10 instructions in front of it, the jury should be able to 11 determine that, "Hey, if we're less than unanimous on the 12 primary liability question, we don't get to this question." 13 Now, that could be good or bad, depending on how 14 much you like a jury to know the effect of their answers, but 15 it seems to me that they're given more information under that 16 alternative than they would be otherwise. On the other hand, I 17 agree that the Legislature did not change the burden of proof 18 for the underlying liability questions. It's just a question 19 of how much information we want to give a jury. 20 CHAIRMAN BABCOCK: Lamont. 21 MR. JEFFERSON: When we talk about a conflict, 22 are we talking about a conflict in a juror's mind or a conflict 23 in the verdict? It doesn't bother me that there's a division 24 among the jurors. I think it's probably unlikely, especially 25 if there is a deep division that you're talking about, but the Anna Renken & Associates (512) 476-7474 11751 1 verdict itself would not have a conflict. I mean, there may be 2 -- you can surmise that some juror, some juror's decision, 3 isn't logical, but -- 4 MR. YELENOSKY: Right. 5 MR. JEFFERSON: -- there's not a conflict in the 6 verdict there. 7 CHAIRMAN BABCOCK: It seems to me that when 8 Alistair talks about trigger questions, there are two types of 9 triggers. One seems to me to be pretty apparent. If you've 10 got 10-2 on negligence, but then all of the sudden you jump to 11 12-2 on gross negligence, that doesn't seem to me to fit. 12 In the libel context, in the public figure libel 13 context you could have 10-2 on falsity presumably and then 12-0 14 on actual malice. Well, that wouldn't work because actual 15 malice is defined in this instance as knowledge of falsity. 16 Well, all 12 have got to agree something is false before they 17 can have knowledge of falsity. So you have a trigger -- you 18 have one trigger question, but your falsity answer is a subset 19 of that, just like negligence is a subset of gross negligence. 20 So the question is whether you carry it farther, and let's say 21 you have a bifurcated case and you get a 10-2 verdict, and does 22 the judge say, "Okay, it's 10-2. It can't possibly result in 23 punitive damages, though, because not all 12 result on all the 24 things that you need to get to a liability case." I mean, that 25 seems -- I mean, there are three possibilities, not two, is Anna Renken & Associates (512) 476-7474 11752 1 what I'm saying. 2 Yeah, Justice Duncan. 3 HONORABLE SARAH DUNCAN: What if you have a 4 simple car wreck case? Plaintiff pleads brakes and lookout 5 negligence. Brakes and lookout are submitted, but evidence is 6 introduced without objection of negligence in speed. Jury 7 answers the negligence question 10-2 because two, the two who 8 do not agree, believe there was negligence in speed but not 9 with brakes and lookout. They could easily, I think, answer 10 the gross negligence question "yes," even though the jury 11 wasn't unanimous on the underlying negligence question. 12 CHAIRMAN BABCOCK: Let's see. Bill, I think, 13 and then Carlos. And then Richard. 14 PROFESSOR DORSANEO: Well, building upon what 15 Justice Duncan said and Lamont Jefferson said, I don't think 16 necessarily that negligence and gross negligence need to be 17 thought of as involving the same material fact or facts. I 18 think we could just simply ignore the problem as we do in other 19 circumstances and say that we just don't see a conflict under 20 these circumstances. 21 Now, if you're unwilling to do that, and I 22 perceive that a number of people would have trouble doing that, 23 even though we do it in other contexts like percentages of 24 responsibility and determinations of primary liability, then I 25 think the question is what's the easiest way to do this so that Anna Renken & Associates (512) 476-7474 11753 1 the jury understands what's involved in the verdict that 2 they're giving with respect to the exemplary damage issue? 3 It seems to me that unless there's some 4 restraint imposed on lawyers arguing that the argument about 5 unanimity will come up pretty early in the game under this 6 one-step process, and I'm not sure whether it would be easier 7 for the jury to understand the issue if you do it in a one-step 8 than it would be as just if you think there's a conflict to 9 point out the conflict afterwards and say, "You have to change 10 one of these answers." And I don't know that anyone other than 11 a trial judge could speak to the question as to which one is 12 likely to present greater difficulties, but that seems to me to 13 be the question. 14 CHAIRMAN BABCOCK: Carlos. 15 MR. LOPEZ: I guess I have a somewhat similar 16 view in the sense that my question is the real -- the real 17 question is are we okay with the process. In other words, do 18 we collectively feel that it's a problem if the following 19 happens: The two dissenting jurors who don't believe that 20 there is simple negligence, 10 to 2. We now go to 21 deliberations on punitive, and they say to themselves, "Well, 22 you know, I couldn't derail this thing at the simple negligence 23 stage, I'm going to bring the damages down." So they start 24 deliberating, and they are an active part of that deliberating 25 process, perhaps influencing the others and then bringing it Anna Renken & Associates (512) 476-7474 11754 1 down to a number that's lower than what it would have been. 2 I mean, I think it's a more philosophical 3 question than anything else. Is it a conflict? I guess it is 4 if somebody says it is. I mean, if we want to look at it that 5 carefully. If not, we take a 10-2 verdict on simple 6 negligence, we let them deliberate, and if they come back with 7 a unanimous verdict on punitive then we have a verdict. I 8 mean, if they don't, we don't. We go back to our default, 9 which is we only cross those bridges when we get there. That's 10 one philosophical approach. 11 I guess my philosophical approach in writing the 12 charge always was one of the last things I always did was scan 13 it for potential conflicts that are built in. You know, if 14 they answer it this way, we're going to have a problem, and 15 then we as lawyers would get together and try to prevent that. 16 So I think it's more just a matter of are we okay with the idea 17 that these other two jurors are still part of that deliberative 18 process when it clearly wasn't unanimous? 19 CHAIRMAN BABCOCK: Richard and then Justice Gray 20 and then Justice Duncan. 21 MR. ORSINGER: This example of gross negligence 22 I think obscures the deeper difficulty about treating a finding 23 of liability and a finding of liability for exemplary damages. 24 There are three different grounds for exemplary damages in the 25 Civil Practice and Remedies Code. There's fraud, there's Anna Renken & Associates (512) 476-7474 11755 1 malice, and there's gross negligence; and malice is defined as 2 a specific intent to cause harm. So we would equate that to an 3 intentional tort. Gross negligence is no specific intent to 4 cause harm, but there's a conscious indifference to the risk of 5 harm, and ordinary negligence is just a failure to use ordinary 6 care. 7 If you look at the restatement section of torts, 8 they put all three of those recoveries on a continuum that's 9 defined by the mental state of the actor. If they were just 10 failing to pay attention in a way that an ordinary person 11 would, of reasonable prudence or ordinary prudence, then 12 they're simply negligent. If there's a high degree of risk and 13 they're aware of it and they disregard it, then that's gross 14 negligence; and if they actually intend to cause the harm, then 15 that's an intentional tort. 16 It's easy to imagine situations in which 10 17 jurors might believe that someone was acting negligently in 18 hitting an individual with a car, but two people might think 19 that they were acting intentionally in hitting an individual 20 with a car. The Legislature has told us before you can impose 21 exemplary damages you have to be unanimous in the finding that 22 exemplary damages are appropriate. In that situation 10 people 23 might think that there was just gross negligence and two might 24 think there was an intentional wrong, but they're unanimous 25 that the grounds for exemplary damages exist; and in that Anna Renken & Associates (512) 476-7474 11756 1 situation where we're not talking about ordinary negligence and 2 gross negligence, you can see that there is an important 3 distinction between the grounds for exemplary damages and the 4 underlying liability. 5 I can create the same problem with fraud and 6 malice, or fraud and negligence, where you have someone who's 7 committed a financial wrong in the management of a partnership 8 or a trustee. There might be a disagreement as to whether the 9 trustee was grossly negligent or acted in a fraudulent manner, 10 but whether they all agree as to what the underlying liability 11 theory is, they might all agree on the fact that exemplary 12 damages are appropriate. And so to me in our instruction we 13 have to account for the fact that there might be two different 14 groups of jurors who feel differently about the underlying 15 liability, but when considered together are unanimous as to the 16 exemplary nature of the damages. 17 And this is really what we got to with the E.B. 18 case, which you all remember was the first Supreme Court case 19 to put the rubber on the road about broad form submission, and 20 that was a determination case involving the parent-child 21 relationship where there were about five criteria as grounds 22 for termination, and the jury charge allowed the jury to just 23 conclude whether the grounds for termination exist, even though 24 they might not all agree as to which ground it was that 25 supported termination. And the Supreme Court said, "We don't Anna Renken & Associates (512) 476-7474 11757 1 care if two people thought they injured the child and eight 2 people thought they exposed the child to danger and two other 3 people thought that they failed to support the child for two 4 years. It doesn't matter. The grounds for termination exist." 5 Now, E.B. was a long time ago, and with Castille 6 and the Harris County case, we're starting to see the pendulum 7 swing the opposite direction, and I'm not sure that the 8 underlying liability questions are going to be global anymore. 9 And, in fact, I would probably if I were submitting it, I would 10 probably submit a separate fraud liability issue from a gross 11 negligence issue or an intentional tort versus gross 12 negligence; but whatever it is, we've got to write this 13 instruction with the sensitivity that the jury might disagree 14 on the actual liability premises, but they might all be 15 unanimous that there are grounds for exemplary damages. 16 CHAIRMAN BABCOCK: Okay. Justice Gray. 17 HONORABLE TOM GRAY: And I guess I'll push the 18 potential for the need to get to the punitive damage question 19 one step further down than Richard did back into the simple 20 negligence question. As you get more claims or more defendants 21 into the -- what has generally been referred to as the primary 22 negligence question, or the simple negligence, you wind up with 23 the possibility that -- everybody seems to be assuming that the 24 two that dissent don't agree that there was negligence. There 25 is the situation where you have multiple defendants or multiple Anna Renken & Associates (512) 476-7474 11758 1 claims, particularly multiple defendants, and you're allocating 2 responsibility that they -- all 12 agree that three of them are 3 negligent, but the two may disagree as to one. And so the 10 4 vote -- and they allocate the negligence, for simplicity we'll 5 just say a third each as to the three defendants that are 6 liable, but yet, the other two that don't join in that verdict 7 also think that those -- not only were those three liable, but 8 there was a fourth person liable that is in the charge, but the 9 other 10 don't and, therefore, they don't join the verdict. 10 It's not unanimous. 11 If you require unanimity at that level without 12 accounting for that possibility then you push it to the point 13 where they don't get to it when, in fact, all 12 did agree; and 14 Judge Sullivan is going to correct me on where my theory is 15 wrong there, but where am I wrong in that? What am I missing 16 in that explanation? 17 HONORABLE KENT SULLIVAN: The proposal takes 18 that into account. First, under this proposal there would have 19 to be an inquiry as to each particular defendant, and also I 20 want to make sure that there's no confusion over the 21 predication. You're not predicating this on a unanimous 22 verdict as to actual damage liability. You could -- the reason 23 for the predicate is specifically because it is contemplated 24 that you could have a 10 to 2 verdict on part one that, in 25 fact, did allow you to reach the exemplary damage liability Anna Renken & Associates (512) 476-7474 11759 1 issues and to award exemplary damages. 2 The reason for the predicate and the effect of 3 the predicate is to make the inquiry to the jury by way of the 4 predicate, "Were you unanimous as to the underlying liability 5 issue as to Defendant A and you point them to the particular 6 issue," so it's a question of did you answer a particular 7 question "yes," so there is no requirement here that there be a 8 12 to 0 vote and certification of the part one portion of the 9 jury verdict. Am I being clear? 10 HONORABLE TOM GRAY: Yes. Now, I had understood 11 that there would be separate questions as to each defendant 12 that was found liable. I had missed the fact that the -- it 13 only required an affirmative answer, not a unanimous answer. 14 HONORABLE KENT SULLIVAN: So to try and give an 15 example, just to make sure we're all on the same page, I'll 16 just use the negligence/gross negligence. Relative to awarding 17 exemplary damages against Defendant A there is the predicate 18 inquiry, "Were you unanimous in agreeing there was negligence 19 on the part of Defendant A," in response to whatever the 20 appropriate question is. If so -- and, of course, the 21 predicate is a little more elaborate than that. If so, you can 22 answer this, but if not, you can't. 23 HONORABLE TOM GRAY: But they would answer that 24 question -- the predicate is such that even if only 10 answered 25 the question "yes," they're still going to get to the punitive Anna Renken & Associates (512) 476-7474 11760 1 damage question with regard to an individual defendant. 2 HONORABLE KENT SULLIVAN: If they were unanimous 3 as to that defendant. 4 HONORABLE TOM GRAY: Even though there is no 5 question in the charge that said "This defendant is guilty by 6 unanimous verdict." 7 HONORABLE KENT SULLIVAN: And that really is the 8 reason for the predicate. 9 HONORABLE TOM GRAY: Okay. 10 HONORABLE KENT SULLIVAN: There is no mechanism 11 under our current form of charge to make an inquiry question by 12 question as to what the vote of the jury was; and so this is a 13 way to try and make that inquiry, given the presumption that it 14 would be a legal defect if, in fact, you had 10 to 2 on the 15 issue of underlying liability for a particular defendant and 16 then a 12 to 0 on exemplary liability as to the same defendant. 17 CHAIRMAN BABCOCK: Justice Duncan. 18 HONORABLE SARAH DUNCAN: That's, I guess, my 19 point of disagreement with what's been said. I don't think 20 it -- you only have a legal conflict in a jury's verdict if two 21 answers can't be reconciled uder any imaginable state of facts, 22 and it's entirely possible, I think, that a juror could answer 23 "no" to a negligence question and then in the next stage of the 24 trial say, "You know, I was wrong and there is -- I should have 25 answered that question 'yes,' but I didn't, but that's okay Anna Renken & Associates (512) 476-7474 11761 1 because now that I think about it, it was grossly negligent." 2 And I don't think we sitting around this table can begin to 3 predict all of the possible circumstances that could come up in 4 this context, and that's why I think the conditioning goes 5 entirely too far. 6 HONORABLE KENT SULLIVAN: Brief response, just 7 to add a little bit of data to this, is I think our concern 8 there was Castille and its progeny. There are a number of 9 cases where if the standard was is there any way to reconcile 10 the jury's verdict with a legally permissible verdict, then, 11 quite frankly, those cases could have been affirmed. I think 12 everybody knows the circumstances of those cases where there 13 were intermingled between certain acceptable theories of 14 liability or acceptable theories of damage some that were 15 legally impermissible, and because there was no clear road map 16 of what the jury had done and whether or not it had relied on 17 something that was permissible or impermissible, those cases -- 18 I'm sorry, go ahead. 19 HONORABLE SARAH DUNCAN: But, Kent, the error 20 was preserved in that case; and error is not preserved in most 21 cases most of the time for most errors; and that's one of the 22 circumstances I don't think we sitting around this table are 23 entitled to assume and base a predicate conditioning 24 instruction on, is that error will be preserved. 25 HONORABLE KENT SULLIVAN: I guess our assumption Anna Renken & Associates (512) 476-7474 11762 1 was that it would be routine, given the circumstances. I mean, 2 you would have it, I would predict, offered up in every CLE 3 seminar in the state of Texas to object to a failure to 4 predicate, that this would be a routine issue that is going to 5 have to be resolved 6 CHAIRMAN BABCOCK: Paula, then Carlos, then 7 Harvey, and then Levi. 8 MS. SWEENEY: There are lots of practical 9 examples. Think of a psychiatrist malpractice case where the 10 negligence issues have to do with whether or not the medication 11 was proper, whether it was within or not within the standard of 12 care, and your expert so testifies, and 10 jurors are persuaded 13 that the psychiatrist was negligent in his care and his 14 management of the medications. Two jurors aren't so sure about 15 that, but he also engaged in -- we are getting ready to try 16 this case -- in inappropriate sexual relationships with the 17 patient, which is the basis of a gross negligence allegation, 18 and everybody agrees that that's gross negligence. And here 19 you've got, yes, that's part of your underlying negligence, but 20 some people just don't think that qualifies or in the jury's 21 mind is what we think of as negligence below the standard of 22 care because it's even worse than that. It's gross negligence, 23 so they answer differently on the two issues. 24 I don't think you've got a conflict there. 25 You've got two valid verdicts. You've got a valid verdict for Anna Renken & Associates (512) 476-7474 11763 1 damages, proximate cause of damages, and you've got a valid 2 verdict for exemplary damages on gross negligence; and for us 3 to be changing the requirement for the regular negligence 4 allegations is beyond -- we're do-gooding. We're trying to fix 5 something that the Legislature messed up by rule-making without 6 letting the normal process of the judicial system work its way 7 through what they did. 8 CHAIRMAN BABCOCK: Carlos. 9 MR. LOPEZ: I guess one practical solution or 10 recommendation would be -- I agree there's going to be cases -- 11 I think if we sit here and think long enough we're going to be 12 able to come up with cases where it's not inherently a 13 conflict; and, therefore, I think the discussion ends there, 14 because the predicate in those cases cuts off what would 15 otherwise be a valid deliberation. So I think right there you 16 have to say "no" to the predicate question because the harder 17 question is going to be in Chip's cases where because of the 18 way the elements of the underlying claim, because of the 19 elements you are headed for or potentially headed for, you 20 know, an irresolvable conflict. I think in those cases, which 21 I think, I think, are going to be the minority of the cases, I 22 think the default is to say that's what charge conferences are 23 for, and, you know, good lawyers bring that up to the trial 24 judge's attention. If they don't, they waived it; and if they 25 do, there it is; and, you know, it's going to be a nice Anna Renken & Associates (512) 476-7474 11764 1 headache for the charge conference, but you come up with 2 something that works and you move on. 3 But certainly the lawyers and the trial judge in 4 that particular case are in a much better position, I think, to 5 come up with a workable solution for that case than for us to 6 try to sit here and think about all of the, I would say, 7 hundreds of possible scenarios and sort of figure out where 8 that would leave us. You know, we default back into the cross 9 that bridge when we get there. There's no real -- I don't see 10 a need across the board to have this predicate language in 11 there. I do think there are going to be cases where not having 12 it in there, there's going to have to be some other solution 13 there, and I think it's up to the lawyers and the trial judge 14 in that case in the charge conference 15 CHAIRMAN BABCOCK: Harvey and then Judge Benton, 16 unless you -- 17 HONORABLE HARVEY BROWN: It seems to me that 18 there is a good process question that Paula has alluded to, and 19 that is whether this is properly done by rule-making. It seems 20 to me that what we're really try to do in a sense is to 21 interpret a statute, and it seems to me that there's a pretty 22 good argument that the interpretation of a statute should be 23 done through a case, not through a debate on the rules. I 24 think the courts wisely don't need advisory opinions; and it 25 seems to me that this is an advisory opinion put into a rule Anna Renken & Associates (512) 476-7474 11765 1 without having debates from both sides in the context of a 2 case. 3 And if the Court was to change the rule, I don't 4 know if they're changing the rule because they think it's a 5 matter of common law right that there should be unanimity 6 required or whether they're changing it because they view 7 they're required to in a statute; but I'd sure like to see an 8 opinion that talks about all those issues after a debate within 9 the Court after briefs from all the parties that are interested 10 in the issues, so I think we should at least talk a little bit 11 about the processes of whether we want to get into this level 12 of minutia in a rule 13 CHAIRMAN BABCOCK: Judge Benton, do you still 14 have a comment? 15 HONORABLE LEVI BENTON: Yes, sir. I do think 16 that in trial, as a trial judge, I do believe that some 17 predicate would be necessary, but Sarah said something about 18 having a way to determine whether there would be irreconcilable 19 answers, and it seems to me -- and I think the subcommittee has 20 provided for this, is maybe what we have to do, not by way of 21 rule, but is just submit more certificates for the jury to 22 indicate their signatures on each theory of liability that is 23 submitted. And you still have a predicate, but that's the only 24 way when you would be receiving a verdict is whether -- that's 25 the only way for you to have a way to determine that there's a Anna Renken & Associates (512) 476-7474 11766 1 reconcilable answer. 2 Now, having said that, I want to touch on what 3 Harvey said, and I said this earlier, it does seem to me we're 4 going far beyond -- this whole discussion is far beyond what 5 ought to be in the rules. I can understand why the PJC 6 committee when we get into the pattern jury charge text might 7 want to have some of this in there, but I don't know that we 8 need this in the rules. So I talked out of both sides of my 9 mouth there, so pick which one you like. 10 CHAIRMAN BABCOCK: Richard and then Skip. I'm 11 sorry, then Judge Christopher, then Skip. 12 MR. ORSINGER: I would like to pose Judge 13 Sullivan a question. If a jury comes back 10 to 2 because 10 14 jurors think that the defendant acted with malice, but two 15 think that they just acted with gross negligence, under this 16 instruction do you go forward to an exemplary damage question? 17 HONORABLE KENT SULLIVAN: I'm not sure I 18 understand your example, but it sounds like you're talking 19 about two exemplary damage liability theories. 20 MR. ORSINGER: Right, but they're not unanimous 21 on either one, so you've got 12 people that feel like an act 22 occurred that warrants exemplary damages, but they haven't 23 agreed whether it was an intentional act or whether it was a 24 grossly negligent act. 25 HONORABLE KENT SULLIVAN: I presume that you Anna Renken & Associates (512) 476-7474 11767 1 would have had a finding of underlying liability on at least 2 one theory of 12 to 0 3 MR. ORSINGER: Okay. I've just given you a 4 scenario where there wasn't. There were 10 jurors that felt 5 the defendant acted with malice and 2 felt like the defendant 6 acted with gross negligence, but you get a verdict based on 7 malice, but it's not unanimous and, therefore, under this 8 instruction you don't go forward to exemplary damages, although 9 all 12 jurors agree that a ground for exemplary damages exists, 10 so under this instruction, do you go forward to the exemplary 11 damage question or not? 12 HONORABLE KENT SULLIVAN: I confess I'm somewhat 13 confused by your example because our debate has been whether or 14 not to predicate relative to 12-0 on an actual damage 15 liability, so I'm -- 16 MR. ORSINGER: Well, I'll throw the question out 17 to anybody here. Under that scenario -- 18 HONORABLE KENT SULLIVAN: I think that's an 19 issue you have now. I mean, you can change the voting 20 requirement to the present or to the previous 10-2, but you'd 21 have the same issue. Now, presumably, if you have people who 22 are looking at the same factual conduct and they think on the 23 one hand that it's gross negligence and on the other hand it's 24 intentional misconduct, I would find that a very difficult 25 situation to understand. I would think that one would subsume Anna Renken & Associates (512) 476-7474 11768 1 the other. In other words, I don't know how you -- if the 2 jurors are being rational and consistent, I don't know how you 3 would reach that situation 4 MR. ORSINGER: Well -- 5 CHAIRMAN BABCOCK: Judge Christopher. 6 HONORABLE TRACY CHRISTOPHER: I find a technical 7 problem with the predication. Basically we have to take the 8 jurors' word for it that they have answered unanimous for A to 9 a defendant in the liability question. I mean, if we have a, 10 you know, eight question verdict in part one that's 10-2 and 11 then we're instructing them to focus back on Question No. 1, 12 which is negligence, and subpart (a), which was the negligence 13 of Defendant A, "Now, I'm taking your word for it that you-all 14 were unanimous on that since you're now answering this next 15 question." You know, from a predicate point of view, I just 16 don't think that works. I mean, normally we can double-check 17 that a juror has followed the predicate because we have an 18 answer. "If you've answered 'yes' to Question 1, then answer 19 Question 2." Here we will have absolutely no way to know if 20 the jury has really followed the instruction. 21 CHAIRMAN BABCOCK: Skip. 22 MR. WATSON: Well, I just have two questions. 23 Excuse me. The first is, is just the underlying theory of 24 we're assuming the premise that it's legally impossible for 25 there to be a 10-2 verdict on underlying liability on actual Anna Renken & Associates (512) 476-7474 11769 1 damages and 12-0 for exemplary damages. That's true in common 2 law, but it would appear that the Legislature has changed the 3 common law on that point. This may be an unintended 4 consequence of that change, but they have changed it, and the 5 assumption for there to be exemplary damages awarded that there 6 must be liability and damages found before you can do that may 7 no longer be in play because of this amendment, and that's a 8 fundamental premise that we're assuming that I think has 9 changed. 10 Second, and more practical, I think we have a 11 bit of a disconnect on what constitutes liability. Liability 12 is the existence of a duty, a breach of that duty that caused 13 injury or damage, but we submit today damages, both the fact of 14 causation of damages and the amount of damages, in one question 15 when really it's two. Did it cause some damage or injury and 16 then what amount? 17 Here we've got the predicate after Question 3, 18 which is the amount of damages. It is entirely possible that 19 12 jurors agreed on all counts of the liability. I mean all 20 counts of underlying duty and breach of duty, causation, and 21 the fact that the wrong caused injury, which is the only 22 predicate in common law for exemplary damages. They disagreed 23 on the amount of damages for pain and suffering. I mean, this 24 is why I think it's unworkable. 25 Whenever you're dealing with soft damages where Anna Renken & Associates (512) 476-7474 11770 1 the jury has the ability to come in and say, you know, "We're 2 going to pull a number out of the air and we're going to put 3 that number in this blank for pain and suffering" or mental 4 anguish or whatever it is, there is the potential for 5 disagreement, and there is the potential to end up with a 10-2 6 verdict because of the difference in the amount in the damages 7 CHAIRMAN BABCOCK: Judge Sullivan and then Buddy 8 and then Judge Patterson. 9 HONORABLE KENT SULLIVAN: Just a brief 10 explanation. That is a point of confusion I've tried to clear 11 up before and I have not succeeded. For some people it is not 12 correct with respect to this proposal. It specifically 13 contemplates what you just posited as an example. In other 14 words, it would be perfectly appropriate to end up with a 10-2 15 verdict and for that jury to get to proceed to punitive damages 16 and award punitive damages 12 to 0 with your assumption that 17 they were -- that there were two dissenters on the amount of 18 damages. They can do that. 19 MR. WATSON: Got it. Sorry. 20 HONORABLE KENT SULLIVAN: That's why the 21 predicate is intended to be very narrow. I understand Judge 22 Christopher's concern, and this proposal was something of a 23 balancing act to make the inquiry that was felt to be legally 24 necessary so that the jury would have made a certification that 25 there is no legal defect, but as Judge Christopher points out, Anna Renken & Associates (512) 476-7474 11771 1 it does not provide a trial judge with comfort, the sort of 2 comfort that you might have if you had a vote count as to each 3 answer, but the intent was to at least require the jury to 4 certify that it had rendered a verdict that was entirely 5 consistent with the law. That was the intent. 6 CHAIRMAN BABCOCK: Buddy. 7 MR. LOW: Lamont brought up a point that I would 8 like to state again, that we should really look to the verdict, 9 not what this one might have thought and that one, and we 10 construe that under cases like Suggs, Arkansas Furniture, and 11 those where specific controls over general, and we don't know a 12 lot of things here, and that comes back to Harvey's point. Let 13 the court determine what is a conflict, let that court and the 14 appellate court, because every time we submit a case to the 15 jury, there is a potential for a conflict when you talk about 16 percentages and multiple defendants and so forth. So I think 17 Lamont raises a point I come back to, if we look at the 18 verdict; and we don't decide that here. 19 CHAIRMAN BABCOCK: Okay. Judge Patterson. 20 HONORABLE JAN PATTERSON: I come back to that 21 point as well because I think that the question really is a 22 very narrow one; and the question is, is there a universe of 23 cases in which there may be a conflict, but not an 24 impermissible conflict; and if there is such a universe of 25 cases, then we shouldn't predicate it because -- and I think we Anna Renken & Associates (512) 476-7474 11772 1 would really throw it out. But that's what I haven't heard 2 from Judge Sullivan and Judge Peeples, is whether they -- I 3 think everybody seems to think that there is that universe of 4 cases, but do you-all think that there is not that universe of 5 cases, and that seems to be the very narrow point from which 6 you-all diverge? 7 HONORABLE KENT SULLIVAN: We couldn't come up 8 with an example. 9 HONORABLE JAN PATTERSON: Well, and so are we 10 talking about conflicts or impermissible conflicts? I think 11 that's -- and undue scrutiny into the verdict, which we don't 12 allow now. 13 HONORABLE KENT SULLIVAN: Well, and I think 14 there's some debate over that in terms of the level of scrutiny 15 the jury verdict gets, and that was the reason for raising the 16 issue of Castille and its progeny, because some people believe 17 it ought to have undergone any scrutiny, relative scrutiny, in 18 jury verdicts in the last three years, but the intent of this 19 proposal was to say when claims arise from the same underlying 20 facts, then this sort of predicate is necessary to avoid 21 conflict. 22 HONORABLE JAN PATTERSON: Well, it may be in 23 certain circumstances advisable, I think is what I would 24 respond. 25 CHAIRMAN BABCOCK: Judge Benton. Anna Renken & Associates (512) 476-7474 11773 1 HONORABLE LEVI BENTON: Did you-all discuss at 2 all whether you would want to have a vote count on each 3 question? 4 HONORABLE KENT SULLIVAN: There was a brief 5 discussion. Judge Peeples raised it with me just as another 6 possible alternative, but to be candid, we just didn't go any 7 further. 8 HONORABLE LEVI BENTON: It does increase the 9 amount of time in deliberations. Arguably it would add some 10 time to argument where a trial court would permit it, but it 11 does seem to me that would solve many of the problems we're 12 discussing, and it seems to me we've got -- in most cases we've 13 got to have a predicate; otherwise, we have jurors deliberating 14 where they need not, and they just -- 15 HONORABLE KENT SULLIVAN: One of the practical 16 issues that we discussed, but understanding we did not give 17 much scrutiny to this and really the subcommittee didn't 18 discuss it at any length. This was just a couple of people 19 batting that idea around, was the certification process, 20 because arguably you can have 10, 11, or 12 answering any 21 particular question; and would you need, if you go that 22 direction, to have a jury certificate, not just a tally but a 23 certificate of who is answering each question? And at some 24 point it becomes very unwieldy. So we were just uncomfortable 25 with it, and we didn't really go anywhere with that idea. I Anna Renken & Associates (512) 476-7474 11774 1 hope that answers your question 2 CHAIRMAN BABCOCK: Kent, can I ask a question, 3 which is probably going to reveal my ignorance so late in the 4 debate, but is the issue here that one faction believes that if 5 you're going to get punitive damages in a case then all 6 liability questions have to be answered unanimously, 7 unanimously? 8 HONORABLE KENT SULLIVAN: No. 9 CHAIRMAN BABCOCK: That's not one of the 10 factors? 11 HONORABLE KENT SULLIVAN: No. I think that the 12 belief is that there must be one underlying or predicate theory 13 of actual damage liability 14 CHAIRMAN BABCOCK: What Alistair calls the 15 trigger question. 16 HONORABLE KENT SULLIVAN: Yes. And then the 17 jury needs to be unanimous on at least one to provide the legal 18 predicate for answering the questions on exemplary damages and 19 awarding exemplary damages 20 CHAIRMAN BABCOCK: And so -- go ahead, Harvey. 21 HONORABLE HARVEY BROWN: I was going to say, 22 what if you have a products case, and in the products case you 23 have a negligent misrepresentation theory, you've got an 24 ordinary negligence theory, two separate issues. You've got a 25 proximate liability damage, say marketing defect or design Anna Renken & Associates (512) 476-7474 11775 1 defect, and you've got a fraud theory that there was 2 intentional misrepresentation; and the jury, you get 10-2, 3 10-2, 10-2, but it's a different 10-2 on all of them, but 4 you've got all 12 jurors saying liability on one of those four. 5 All 12 jurors believe there is gross, but not all 12 jurors 6 agree to any one liability theory. That could easily happen. 7 HONORABLE KENT SULLIVAN: Well, I think you're 8 already having to deal with similar situation, and that's 9 already contemplated to some extent by the instructions. When 10 we tell the jurors that they have to be 10-2, it must be the 11 same 10; otherwise, you do face the prospect of what you're 12 saying. 13 HONORABLE HARVEY BROWN: Oh, you're right. 14 HONORABLE KENT SULLIVAN: That, you know, you 15 could have this evolving or constantly changing majority that 16 reaches 10 each time, but that is not a legal verdict. We 17 instruct the jury that it must be -- 18 HONORABLE HARVEY BROWN: You're right. 19 HONORABLE KENT SULLIVAN: -- the same verdict 20 that votes 10, 11, or 12 in favor of all of the answers that 21 make up the verdict. So hopefully that answers your question 22 CHAIRMAN BABCOCK: I'm still struggling to see 23 where the fight is. We have one group of people that think 24 there has to be a unanimous verdict on the trigger question, or 25 trigger question or questions; and it's the other side of the Anna Renken & Associates (512) 476-7474 11776 1 fight that, no, House Bill 4 only requires a unanimous vote on 2 the amount of punitive damages? 3 MR. TIPPS: No. 4 MS. SWEENEY: No 5 CHAIRMAN BABCOCK: Anybody believe that? Paula. 6 MS. SWEENEY: On the gross negligence question 7 CHAIRMAN BABCOCK: Huh? 8 MS. SWEENEY: On the gross negligence question. 9 CHAIRMAN BABCOCK: Which wouldn't that be a 10 trigger question? 11 MS. SWEENEY: They're going back and saying the 12 trigger to the trigger is negligence of both. 13 CHAIRMAN BABCOCK: Okay. So it's not part of 14 the trigger question? 15 MS. SWEENEY: No, it's how many there are. How 16 many layers of this do I have to -- and hoops do I have to jump 17 through to get there, and you're adding another big old hoop. 18 CHAIRMAN BABCOCK: Well, that's what I was 19 trying to articulate, which, frankly, I hear the argument being 20 made that every question on liability is a trigger question 21 because if you're missing one element of your cause of action 22 by a unanimous vote you can't possibly have punitive damages. 23 That's the argument. 24 MS. SWEENEY: Right. 25 CHAIRMAN BABCOCK: So it's a dispute between how Anna Renken & Associates (512) 476-7474 11777 1 many triggers there have to be. 2 MS. SWEENEY: Yes. 3 PROFESSOR DORSANEO: Mr. Chairman? 4 CHAIRMAN BABCOCK: Yeah. 5 PROFESSOR DORSANEO: That's the one layer of the 6 dispute. The other layer is how you're going to deal with it. 7 If you put it all -- put Part A and Part B before the jury and 8 you don't receive a verdict on Part A and kind of put that in 9 the closet then it seems to me what any plaintiff's lawyer who 10 won a punitive damages would argue would be, well, you need 11 here to look at Part B along with Part A, and we need to get 12 unanimous answers to the negligence question and to the gross 13 negligence question in order to get punitive damages. 14 Now, you know, that's how I understood Judge 15 Sullivan's proposal to begin with, but then maybe I have a 16 question in the middle of this comment. Judge Christopher said 17 that you kind of make the assumption that the two jurors who 18 didn't vote for negligence changed their mind if you got 12 on 19 punitive damages, but I thought, Judge Sullivan, you suggested 20 in your response to her that the verdict wouldn't need to be 21 changed on the negligence question; is that right? 22 HONORABLE KENT SULLIVAN: I'm not sure I 23 understand your question. 24 PROFESSOR DORSANEO: Do they have to change the 25 10-2 question to unanimous in order for the verdict to look Anna Renken & Associates (512) 476-7474 11778 1 right to you, or do you take it on faith, as Judge Christopher 2 said, that when they got to 12 they changed their mind? Isn't 3 that right? 4 HONORABLE TRACY CHRISTOPHER: No, it wasn't a 5 matter of changing their mind. Say you have eight questions in 6 the first issue. Liability of Defendant A, B, C, damages, 7 several other theories, and among all those theories the jury 8 comes up with a 10-2 verdict, but as to -- suppose we were 9 going to ask the jury about gross negligence as to Defendant A. 10 The instruction says, "Okay, go back to Question No. 1a and 11 think of your answer to Question 1a, and if it was unanimous 12 then you can answer the gross negligence question as to that 13 defendant." 14 That's the current construction, and what I'm 15 saying is we just have to sort of take it on faith that it was 16 unanimous back there. I'm not saying that the jury has to 17 change their mind or anything because they can have a 10-2 at 18 the end of eight questions for whatever reason. They don't 19 agree on the damages, they don't agree on some other 20 defendant's liability, they agree it's negligence and they 21 don't think it's fraud. There could be plenty of reasons 22 without an actual change of mind. 23 PROFESSOR DORSANEO: Okay. So you have a 24 problem with the certificate in Part A not being -- 25 HONORABLE TRACY CHRISTOPHER: Right. Anna Renken & Associates (512) 476-7474 11779 1 PROFESSOR DORSANEO: -- fully informative. 2 HONORABLE TRACY CHRISTOPHER: Right. 3 PROFESSOR DORSANEO: Okay. Now I understand, 4 but that takes me back to the first comment. Somebody is going 5 to get the jury to focus on the effect of a 10-2 answer to 6 Question 1a, and I think that will happen relatively early in 7 the game in some cases, perhaps all cases. So it seems to me, 8 does it make sense to do that in the opening process or does it 9 make sense to do it after somebody points out the existence of 10 what you perceive to be a conflict and a number of other people 11 don't necessarily perceive to be a conflict to begin with? 12 Frankly, I think the best thing to do would be 13 just to ignore this problem and just say it's not a conflict 14 and forget about it, because we just spend a lot of time and 15 energy fooling with it. Probably not very many cases are going 16 to come up, and I think we're making too much out of something 17 that could be ignored altogether without doing any real harm to 18 anyone. 19 CHAIRMAN BABCOCK: Justice Duncan. Then Carl. 20 I'm sorry, Carl. 21 HONORABLE SARAH DUNCAN: Go ahead. 22 MR. HAMILTON: Go ahead. 23 HONORABLE SARAH DUNCAN: You go ahead. 24 MR. HAMILTON: I was just going to say that 25 mechanically we now have it where we have Certificate 1 and Anna Renken & Associates (512) 476-7474 11780 1 Certificate 2. Mechanically both of those could be combined 2 and put at the end so that the jury knows that if they haven't 3 done something right in the first part to answer the second 4 part they need to go back and fix it instead of making them do 5 the first part first and sign the certificate and then go to 6 the next part. 7 PROFESSOR DORSANEO: I agree with that, too. 8 HONORABLE KENT SULLIVAN: Could I speak to that 9 briefly, because we did consider that? And practically 10 speaking, of course, the instructions will be read to the jury 11 in toto, even in a bifurcated case. The question of exemplary 12 damage liability would be before the jury together with 13 underlying liability. So the jury will understand what they 14 are being asked, and they will understand what the effect is of 15 a particular answer. That will all be part of what is in 16 essence a combined process. 17 CHAIRMAN BABCOCK: Justice Duncan. 18 HONORABLE SARAH DUNCAN: As I understand, to go 19 back, you were trying to paraphrase what the disagreement is. 20 As I understand what the disagreement is, Judge Sullivan and 21 Judge Peeples believe that if the liability finding on 22 negligence, let's say, is 10-2, there cannot be a unanimous 23 verdict on an exemplary damages liability finding or amount 24 finding, and that's the position I disagree with and I think 25 several people around the table disagree with. I think there Anna Renken & Associates (512) 476-7474 11781 1 are circumstances in which a jury could logically and without a 2 fatal conflict answer a negligence question 10-2 and still have 3 a liability finding in conflict. 4 CHAIRMAN BABCOCK: And so you're in the camp 5 that thinks there has to be one trigger, you've got to get 6 unanimous on gross negligence in order to get to punitive 7 damages, right? 8 HONORABLE SARAH DUNCAN: Right. 9 CHAIRMAN BABCOCK: But you don't think there has 10 to be two triggers, which is the negligence. 11 HONORABLE SARAH DUNCAN: No. And I think it 12 would be generalizing from the E.B. case to all cases to do 13 that. 14 CHAIRMAN BABCOCK: Yeah. I'm just thinking, 15 again outloud, which is dangerous, but maybe it depends on the 16 kind of case because -- 17 HONORABLE SARAH DUNCAN: Absolutely. 18 CHAIRMAN BABCOCK: -- I think, again, in a 19 public official libel case, in order to get to punitive damages 20 you have to prove a lot of things, but one of the things the 21 Constitution says you have to prove is actual malice; that is, 22 knowledge of falsity or reckless disregard of the truth. 23 That's the test. Well, so that's your trigger. 24 That's one trigger you've got to have, but 25 another question that the jury has to answer is, "Do you find Anna Renken & Associates (512) 476-7474 11782 1 that the complained of statements are materially false?" So 2 you get 10-2 on that. It doesn't seem to me there's any room 3 there for those two dissenting jurors to then say, "But they 4 knew it was false," or "they were in reckless disregard of the 5 truth." So you need two triggers in that case at least. 6 HONORABLE SARAH DUNCAN: And I think that's sort 7 of the problem, is because there are cases we can envision in 8 which there would be a fatal conflict between a 10-2 underlying 9 liability and a 12-0 exemplary, that that is necessarily true 10 for all cases; and that's what we're doing, is we are writing a 11 rule for all cases; and I think the subcommittee has done a 12 marvelous job of crafting the instruction that you're going to 13 request in your public official libel case, but I don't think 14 you can extrapolate from your case to all cases. 15 CHAIRMAN BABCOCK: Richard Munzinger. 16 MR. MUNZINGER: Give me an example of a case 17 where the jury finds 10-2 on the first issue and then finds 18 unanimity on the second issue and there is not a conflict in 19 the two answers. 20 HONORABLE SARAH DUNCAN: Well, I've mentioned 21 two. If the negligence pleadings pleads brakes and lookout but 22 doesn't plead speed. Evidence is introduced at trial without 23 objection on speed. 24 MR. MUNZINGER: That assumes that if there's one 25 issue on negligence. That's distinct from three issues on the Anna Renken & Associates (512) 476-7474 11783 1 specific act of negligence. 2 HONORABLE SARAH DUNCAN: That's correct. Right. 3 A broad form charge on negligence. The only two negligent acts 4 that are submitted, because they're the only two that are 5 pleaded and they're the only two the plaintiff's attorney 6 remembers to put into the charge, are brakes and lookout. The 7 two jurors who don't answer "yes" to that question think there 8 was negligence in speed. 9 HONORABLE TRACY CHRISTOPHER: We don't put 10 brakes and lookout in the charge 11 PROFESSOR DORSANEO: Well, Harris County might 12 put it in there eventually. 13 HONORABLE TRACY CHRISTOPHER: Right now we don't 14 do it 15 CHAIRMAN BABCOCK: Okay. Orsinger. 16 MR. ORSINGER: I would like to suggest an 17 alternative to this fight. 18 CHAIRMAN BABCOCK: Oh, Justice Duncan wasn't 19 finished. 20 MR. ORSINGER: Well, can I go next then, please? 21 HONORABLE SARAH DUNCAN: And decides they were 22 wrong in answering. Let's say you've got a bifurcated trial. 23 Decides they were wrong in answering the negligence question. 24 MR. MUNZINGER: If they change their mind, 25 presumptively if the certificate is included in the charge they Anna Renken & Associates (512) 476-7474 11784 1 would be required to say it was a unanimous verdict the second 2 time they reach that question. 3 CHAIRMAN BABCOCK: Okay. Orsinger. 4 MR. ORSINGER: I think we can avoid all of this 5 and be true to the E.B. case, which is still good law, if we 6 blow off this instruction and instead give an instruction that 7 exemplary damages can be assessed only if you unanimously find 8 that the plaintiff's injuries resulted from the defendant's 9 fraud, malice, or gross negligence and then ask, "Do you find 10 that the grounds for exemplary damage exist, exemplary damages 11 exist?" 12 That's exactly what they did in E.B., only it 13 was termination. They said, "The grounds for termination are 14 one, two, and three. Do you find that the grounds for 15 termination exist?" That allows you to get to exemplary 16 damages if 10 people feel like there was fraud and two people 17 feel like there was malice. All of them feel like the grounds 18 for exemplary damages exist, but which ground they disagree on, 19 but E.B. says it doesn't matter which ground they disagree on. 20 So why don't we just say that exemplary damages are available 21 only if you find fraud, malice, or gross negligence. "Do you 22 find that the grounds for exemplary damages exist?" And that 23 avoids this whole debate. 24 CHAIRMAN BABCOCK: Justice Duncan. 25 HONORABLE SARAH DUNCAN: If I could just respond Anna Renken & Associates (512) 476-7474 11785 1 to what was said about the fraud, if you don't present that 2 question then you do have a Castille problem if I'm on the 3 other side because that's my right on appeal, is to be able to 4 determine whether there is factually sufficient evidence to 5 support the finding that underlies the jury's verdict. So 6 whatever the pattern jury charge may say, that is the Castille 7 problem. And I'm just saying that there could be instances in 8 which someone would find -- would believe that there was 9 negligence without answering either of those blanks "yes." 10 CHAIRMAN BABCOCK: Carlos. 11 MR. LOPEZ: I think -- I go back to what I said 12 earlier. I think the solution is that in the cases where -- in 13 individual types of cases where it's necessary, that sounds 14 like a properly worded predicate question to put in the PJC for 15 that type of case or as a comment or as a potential actual 16 question, but it doesn't -- I think it's clear that -- I know 17 Paula mentioned a case of a psychiatrist where it was clear to 18 me that at least in that situation it would be absolute error 19 to not let them go on to deliberate the exemplary damage 20 question. And if that happens even once then you can't have a 21 blanket that says you have to have this predicate all the time. 22 HONORABLE SARAH DUNCAN: Right. 23 MR. LOPEZ: And so you can't fix them -- we're 24 not going to be able to fix them all here, and because of that, 25 I don't think we can fix any of them here. And so we let the Anna Renken & Associates (512) 476-7474 11786 1 PJC do that in the cases where the elements themselves create 2 the problem in a way that is absolutely not reconcilable, and 3 then Chip is going to -- he gets paid a lot per hour to figure 4 out how to make that work or figure out how to not make it 5 work. 6 CHAIRMAN BABCOCK: You're supposed to solve it 7 right now. 8 MR. LOW: Is that a third alternative? In other 9 words, the Chairman had an alternative or had one; Alistair had 10 another; and is that a third, do nothing? 11 MR. LOPEZ: Well, I guess. 12 HONORABLE TRACY CHRISTOPHER: No, the minority 13 report is no predicate. 14 MR. LOW: Alistair said let the conflict, you 15 know, work, the courts work through that. That's not what was 16 first suggested, and I'm just -- it sounds like you're saying 17 that this committee vote not to do anything on that. Is that 18 basically right? 19 MR. LOPEZ: I'm just saying that we -- 20 MR. LOW: No, I'm not disagreeing with you. I 21 just want to know whether I agree or disagree. 22 MR. LOPEZ: My position is that we can't put 23 that predicate in. 24 MR. LOW: Okay. 25 MR. LOPEZ: We can't mandate. It can certainly Anna Renken & Associates (512) 476-7474 11787 1 be used in some cases. 2 MR. LOW: But let me ask a question. We're 3 talking about proximate cause. If General Motors makes cars, 4 there's a suit that involves cars; and I mean, it's terrible, 5 but probably not gross, but the evidence comes in of their 6 conduct and they make airplanes as well, but the airplane had 7 nothing to do with the accident. You mean exemplary damages 8 don't have to do -- the evidence on that doesn't have to do 9 anything with causing the accident or related to it? Which 10 brings back what Richard says. It might not be proximate 11 cause, but doesn't it have some relation? I mean, your 12 exemplary conduct, so what's wrong with what Richard says? 13 CHAIRMAN BABCOCK: Kent. 14 HONORABLE KENT SULLIVAN: I think the point of 15 disagreement probably falls in two categories. One is what 16 constitutes a legal conflict or a potentially fatal conflict. 17 We talk about that in the example of negligence and gross 18 negligence, and I think we've played out what the two sides 19 are, although I want to confess I don't totally understand how 20 you can have a 10 to 2 negligence, 12 to 0 gross negligence 21 from the same underlying set of facts. I truly don't 22 understand that, but I understand that there are people who 23 believe that. That's Question No. 1. 24 Question No. 2 in my mind is much like the issue 25 posed by Bill Dorsaneo, I think, and that is the issue of what Anna Renken & Associates (512) 476-7474 11788 1 is the reach of Castille and its progeny, what is currently 2 required of a valid jury verdict. If I can be very informal 3 about it, do you have to have a road map from the objective 4 jury finding that it complied fully with the law in order for 5 the verdict to be a valid jury verdict? I think that 15 years 6 ago the answer was you did not need that road map if there was 7 any way to reconcile the jury's answer that was acceptable and 8 the verdict was a valid jury verdict. I think at a minimum 9 that is subject to substantial question now in light of 10 Castille, Harris County vs. Smith, and some of the other cases 11 involving similar situations. 12 CHAIRMAN BABCOCK: Justice Duncan, and then 13 Justice Patterson. 14 HONORABLE SARAH DUNCAN: As I understand 15 Castille it's not a question of reconciling jury answers. It's 16 a question of whether the appellant has the ability to 17 determine what the jury decided so that the appellant can 18 challenge the legal and factual sufficiency of the evidence to 19 support that finding. So I don't -- I don't see that Castille 20 really has a lot to do with what we're talking about here; and 21 further, as I mentioned earlier, if you're going to assert 22 Castille error on appeal you've got to preserve it, and it 23 isn't preserved in most of the cases I see. 24 CHAIRMAN BABCOCK: Justice Patterson. 25 HONORABLE JAN PATTERSON: I think there is a Anna Renken & Associates (512) 476-7474 11789 1 third question to add to the two, Judge Sullivan, and that is 2 the one that I think Richard's question or statement raises 3 starkly, and that is one on legislative intent. Appellate 4 courts say all the time, "The Legislature spoke in this matter. 5 They knew how to speak with a clearer voice." Here they say 6 exemplary damages. They knew how to say something other than 7 that, but they didn't, and so I think this does fall into a 8 matter of -- and I think Richard's suggestion addresses that 9 point and does exactly what the Legislature suggests without 10 more, and this does a great deal more, and it may be necessary 11 in many cases, but it may not be necessary in all cases, and 12 that seems to be the open question 13 CHAIRMAN BABCOCK: I want to take a straw vote 14 here in a second, but one thing that hasn't been said, and I 15 don't know if it needs to inform our discussions or not, but in 16 a broader sense, you know, there is a great deal of skepticism 17 about juries and, you know, jury verdicts; and justice -- Judge 18 Higginbotham of the Fifth Circuit just gave a speech about how 19 horrible it is that people are opting out of the jury system 20 and we don't have jury trials anymore. And one of the things 21 that I think about anyway, is if we create a system where you 22 have a -- you have a result where two jurors say that there's 23 not negligence but then they go and say but there's gross 24 negligence, or in the public official libel case that I've been 25 talking about two jurors say that the complained of statements Anna Renken & Associates (512) 476-7474 11790 1 were false but then turn around and say, "But the defendants 2 knew they were false." I mean, that -- I mean, you can just 3 see how that plays out with businesspeople in the general 4 population. 5 And so in thinking about this, it seems to me 6 that we have to advise the Supreme Court that they should try 7 to have a rule that prevents that kind of facial inconsistency 8 in terms of implementing this legislative mandate. 9 Having said that, I don't know that that's 10 particularly apropos to anything other than the big picture; 11 and, Richard, I'll recognize you in two seconds. But the straw 12 vote I think we ought to take before our break is in a general 13 sense do people think that we ought to move toward the majority 14 or at least Judge Sullivan's proposal that I guess the majority 15 of your subcommittee supported or whether -- which is the 16 multiple trigger approach, or whether we should adopt what 17 Alistair's first choice was, which was just a single predicate 18 trigger as requiring unanimity because, as Justice Duncan 19 points out, there's a way you can get there consistent with the 20 law and with what a jury may be doing. 21 MS. SWEENEY: Chip, I don't think the majority 22 of the subcommittee -- yeah, I don't think we ever took a vote. 23 I don't think we have a majority/minority view. I don't want 24 the record to later be misconstrued. 25 HONORABLE KENT SULLIVAN: And I agree with Paula Anna Renken & Associates (512) 476-7474 11791 1 on that. 2 CHAIRMAN BABCOCK: So we'll call it the 3 Sullivan/Dawson debate. Sullivan proposal versus the Dawson 4 proposal. 5 HONORABLE KENT SULLIVAN: I'd like to have a 6 vote on whether or not to call it that 7 CHAIRMAN BABCOCK: Too late. So before we take 8 that straw vote, Richard Munzinger, last comment. 9 MR. MUNZINGER: I only wanted to speak to what I 10 felt was a sentiment among some that we ought to finesse the 11 issue and avoid it. I think the Legislature has spoken, and 12 the Supreme Court ought to write a rule that attempts to comply 13 with whatever it perceives to be the legislative intent. I 14 don't think it's something for the pattern jury charge 15 committee or anybody else for this thing to percolate over the 16 years without the Supreme Court addressing it. I think we need 17 to give them some guidance. 18 HONORABLE KENT SULLIVAN: Yeah. And if I could 19 add to that very briefly, I did serve as Vice-Chair of the 20 Pattern Jury Charge Oversight Committee last year, and in all 21 candor, the committee that was dealing with this issue was 22 divided much like our own. There are different viewpoints, and 23 everyone thought they would look to this committee and the 24 Supreme Court for guidance before they took action. So we're 25 in something of a circular situation here. Anna Renken & Associates (512) 476-7474 11792 1 CHAIRMAN BABCOCK: Okay. So -- and this is not 2 binding. It's not deciding anything. It's just to give us a 3 sense of where we are. How many people think that the Sullivan 4 proposal is preferable? Sullivan. 5 HONORABLE TOM GRAY: I object to Sullivan not 6 voting in favor of his own proposal. 7 CHAIRMAN BABCOCK: No, he did. 8 HONORABLE TOM GRAY: Oh, okay. 9 CHAIRMAN BABCOCK: He sort of raised his hand. 10 All right. The Dawson proposal? 11 MR. LOPEZ: Is that to not have it? 12 MR. ORSINGER: Well, Chip, there's a difference 13 between the Dawson proposal and voting against the Sullivan 14 proposal, so this is a little bit of a misconstrued vote. 15 CHAIRMAN BABCOCK: Well, this has decided a lot. 16 The Sullivan proposal has gotten 15 votes and the Dawson 17 proposal has gotten 15 votes. We'll take our morning break. 18 (Recess from 10:40 a.m. to 10:59 a.m.) 19 CHAIRMAN BABCOCK: Okay. We have a number of 20 distinguished visitors, led by Jack London, who are here for 21 the purposes of talking about the evidence rule that Buddy has 22 been working with his subcommittee on and that we've discussed 23 here a number of times. Yeah, we're going to leave Judge 24 Sullivan for the moment in deference to our visitors; and, 25 Buddy, why don't you bring us up to date on where we are? Anna Renken & Associates (512) 476-7474 11793 1 MR. LOW: Yeah. All right. Let me -- just to 2 focus back on what gave rise to this, as you know, the Federal 3 courts have condemned ex parte conferences with the doctor in 4 the Rule 509. 5 MR. HAMILTON: Can't hear you, Buddy. 6 MR. LOW: All right. State courts of appeal 7 have allowed it, and Bill Edwards -- 509 and 510 provide for -- 8 509 is the doctor-patient privilege. 510 is professional and 9 patient privilege, and professional includes a doctor, so we 10 took a look at that. HIPAA is on everybody's mind, and I will 11 tell you before I start, I'm not going to tell you I understand 12 HIPAA, but I will tell you I probably know -- I can add that to 13 my vast knowledge of useless information, and that's the most 14 recent useless information. 15 HIPAA came about -- we discussed this earlier 16 before, and John Martin was concerned and we all were concerned 17 with the peer review and the ability of hospitals and doctors 18 and committees to review the conduct of other doctors. There's 19 a Federal statute on that, resident peer review, and the state 20 statute adopts that, so it is in principle favorable that we 21 have that. John came up with a provision, and you have all of 22 these. I say John. John sat on the committee with us, and he 23 came up with a rule which had a footnote that amended the rules 24 -- we amended the rule basically to have a footnote, and you 25 can -- I don't have it right before me right now, but it points Anna Renken & Associates (512) 476-7474 11794 1 out to the lawyer that, you know, you need to look out for 2 HIPAA. 3 The State Bar has worked considerably on this, 4 and you have their reports and their rule, and basically the 5 State Bar revised their rule to take care of our concern about 6 the peer review. 7 Now, first of all, let me explain HIPAA. There 8 have been a number of articles written about what HIPAA does 9 and what HIPAA does not do. HIPAA is very broad and pertains 10 basically to all medical information. Many of the articles 11 that were written were written when HIPAA had its first 12 version. For instance, Barbara Radnofsky, her article was 13 written back on the first version when there was the lawsuit 14 exception in 510. Now 510 pertains only to getting information 15 when consent is given. 16 512 pertains to when the information can be 17 given without consent, and it has a section in there that 18 pertains to administrative and lawsuit proceedings, but it says 19 you can get it through the legal process if -- and all through 20 there it has notice and how you have to document everybody. So 21 I think there's no question, none at all, to suggest you can 22 get information without notice. 23 Jeff, I talked to Jeff, and he had let me know 24 that the Attorney General is looking into this; and, I guess, 25 Jeff, isn't it whether there's conflicts or -- between state Anna Renken & Associates (512) 476-7474 11795 1 law and -- 2 MR. BOYD: Preemption. Right. 3 MR. LOW: Now, Jeff wrote to me, and I asked him 4 to be on -- and Jeff said he does not believe that HIPAA is 5 inconsistent or preempts 509 and 510. I agree with that. 509 6 and 510 apply, but HIPAA tells you then how you can get the 7 information. 509 and 510 just provide for the lawsuit waiver. 8 They don't say you can get it by what method. So I agree that 9 it does not preempt. 10 Now, presently there is a conflict between -- 11 like 510 pertains to mental health. Well, the Safety Code -- 12 let me find it here. The Safety Code was passed and it 13 pertains to mental health, passed in '79, and it had the 14 lawsuit exception waiver. In '95 it was amended and it took it 15 out, so that places a conflict between 510 which pertains to 16 health and that. There is no waiver under the current version, 17 the 1995 version, 611.006 of the Health Code. 18 The Occupation Code pertaining to physician and 19 patient, Section 159, has the exception. So there's a lot to 20 be answered, and to amend as we did doesn't answer 510. 21 Now, the State Bar version is broader than the 22 exceptions. Excuse me, broader than the privilege. 510 23 pertains to doctor-patient. No, 509 does. 510 pertains to the 24 professionals. That means licensed. But HIPAA includes other 25 information. It might be a trainer or other medical Anna Renken & Associates (512) 476-7474 11796 1 information besides a professional. And I pointed out to them 2 that their exception is broader than the privilege. It's my 3 understanding their intent was to take care of HIPAA, and if 4 you do that, you might have to put that rule under a discovery 5 rule rather than evidence rule. They have reasons for that. 6 So they have been kind enough to come here, and 7 I would ask Jack to speak to you and anyone he has, because 8 they've done a lot of work on this over about a year and a 9 half, haven't you, Jack? 10 MR. LONDON: We first began this back in 2001, 11 which the question at that time was whether or not there should 12 be a rule to address the emerging issue of ex parte contacts 13 with who essentially were defendant lawyers contacting the 14 patients' physicians ex parte, and there were split decisions 15 in the courts on that, and the question then was whether the 16 rules of privilege should be amended or modified to exclude 17 from evidence any ex parte -- any information gotten in an ex 18 parte contact and to make that privileged and, therefore, 19 inadmissible. 20 And we had two long and intensive sessions. 21 They sounded like PJC sessions this morning where all the 22 defense lawyers on the Rule of Evidence Committee would get 23 together and say it's not fair for the plaintiff's lawyer to 24 talk to the plaintiff's doc and the defense lawyers don't get 25 to. Plaintiffs' lawyers would all say, no, it is fair because Anna Renken & Associates (512) 476-7474 11797 1 plaintiffs' lawyers need to have a big picture about their 2 client's health, about their information being compromised. 3 You know, we would snap back and forth, and the criminal 4 lawyers would all buff their nails, and the divorce lawyers 5 would all sleep, but before we ever voted on that rule -- no, I 6 think a -- I'm hard of hearing anyway, but before we ever voted 7 on a rule, HIPAA was passed, and from our perspective the first 8 thing HIPAA did was it prohibited ex parte contact and wiped 9 out that entire line of inquiry. 10 But then the second thing HIPAA did, was that it 11 incorporated exceptions in how even an ex parte contact might 12 be had within the lawsuit context. So we all started from 13 scratch all over again. We formed subcommittees; and the 14 subcommittees met three times, twice before your committee met 15 last spring, once after Mr. Martin's report came raising the 16 questions that your committee had; and what we tried to do was 17 recognize a couple of things. 18 First, we're talking about an exception, a 19 privilege; and once you talk about a privilege you're then 20 talking about a rule of evidence, not a rule of discovery. It 21 may delineate the scope of what is discoverable, but we're only 22 dealing with it because it is a privilege. 23 And then secondly, we understand that lawyers 24 and judges ought to recognize what the applicable rule of 25 privilege is, but the problem with HIPAA is that doctors and Anna Renken & Associates (512) 476-7474 11798 1 healthcare providers are the ones who are having to make the 2 call when they're contacted out of court, whether it's by a 3 subpoena, by deposition, or by an approved ex parte contact, 4 what may be divulged; and the rule that we saw coming from your 5 committee really just said "Except for prevailing state and 6 Federal law, here are the privileges"; and they don't tell the 7 doctors, they don't tell the hospitals, "Here's what you can 8 and here's what you cannot give," even though it's very clear 9 that not all medical information may be disclosed in every 10 lawsuit. 11 The example that I think our committee kept 12 getting hung up on, no pun intended, was the administration of 13 a drug overdose. If you have a patient who has a medical 14 complication because he was given too much Demerol and died or 15 nearly died, all of the pulmonary records may be discoverable 16 to see whether he had a condition that was appropriate, but if 17 his name is Bobbitt, the fact that he was given Viagra probably 18 isn't discoverable and shouldn't be disclosed. We as lawyers 19 and judges ought to know that. A doctor would not know that, 20 but a doctor who disclosed that would be exposed to penalties 21 under HIPAA. 22 So we approached this with the view that we want 23 to give guidance to judges, we want to protect the HIPAA 24 privilege, and we want to protect the healthcare providers who 25 are being called upon to disclose information appropriately. Anna Renken & Associates (512) 476-7474 11799 1 On the other hand, we didn't want to restrict 2 with some rule of evidence the disclosure of nonprivileged 3 information, and that, finally, we wanted to give trial judges 4 the authority to make the call for these somewhat unforeseeable 5 circumstances that come up in every case. 6 Now, Chip and Buddy talked about how we had 7 distinguished guests from out of town. I want Steve and Terry 8 to talk, not because they're smarter or know more than me, but 9 because they drove here through rush hour traffic past 10 Georgetown, and no one should ever have to come to Austin on 11 Friday morning and drive through Georgetown without talking to 12 your committee, and so I want to start with Steve, and give 13 your perspective on our rule and then I really want to let 14 Terry talk. Terry was the lead draftsman with Professor Steve 15 Goode of both the previous version of our draft rule and the 16 rule that we have given to you. 17 I think that in the final analysis our rule 18 comes down to this question: The draft rule we've seen from 19 the SCAC is simply putting on top of Rule 509 "Except for 20 prevailing state and Federal law here are some exceptions to 21 the rule of privilege," and they only apply to doctors in 509 22 and professionals under 510, as Buddy pointed out. Rather than 23 having an exception to an exception, our rule really addresses 24 the scope of the evidentiary issue. 25 So let me start with Steve. Steve, why don't Anna Renken & Associates (512) 476-7474 11800 1 you go, and then, Terry, you go. I'll answer questions. I 2 don't really have a lot more to say because these guys really 3 are more distinguished than I. 4 MR. STEVE HARRISON: It doesn't take me long to 5 get my I-35 frustration talked out, so I will be very brief. 6 We have gone back and forth with this for two years now, and we 7 think what we've presented to you is a very good compromise 8 that eliminates the possible mischief that can come from ex 9 parte communications but provides a solution, court 10 administered, where in those situations where ex parte 11 communications may be appropriate they can at least be noticed 12 and monitored by the court. 13 So I won't belabor the point. I'm sure all of 14 you have read the rule that we have proposed. That is the 15 compromise that we have laid out and propose to the committee, 16 so thank you for your consideration. 17 MR. JACOBSON: My name is Terry Jacobson, and I 18 practice in and around Corsicana, Texas, which is probably a 19 little different than some of the venues you-all get to. I was 20 the subcommittee chairman on the original ex parte issue. We 21 had two defense lawyers, two plaintiffs lawyers, one judge, 22 Judge Lopez at the time, and one academic; and as Jack said, we 23 found ourselves as primarily docket-oriented. Defense lawyers 24 wanted unfettered contact with physicians. Plaintiff's lawyers 25 wanted to put a stop to it, and I do a little bit of plaintiffs Anna Renken & Associates (512) 476-7474 11801 1 law and I do a little bit of defense law, and I represent 40 2 physicians in Navarro County, Texas, on a noninsurance basis. 3 So I sort of had the physician's perspective as well. 4 And we did a lot of research. We looked at what 5 other states had done. Some of the materials you may have 6 received include some cases from other jurisdictions. We 7 looked at the Federal cases here in Texas, which seemed to say 8 that ex parte contact was not allowed. We looked at the San 9 Antonio court of appeals cases that seem to say it is allowed, 10 even though I think in one of the opinions one of the justices 11 said, "Please, somebody deal with this. You know, we need to 12 have a little help here." They're asking for some legislative 13 or rule-making intervention. 14 And then HIPAA, of course, was coming out before 15 we reached our final conclusion, but it really solved the 16 question for us because I think HIPAA in its current form, 17 which is the law, number one, absolutely preempts any state law 18 which is less restrictive than HIPAA. It just says it that 19 clearly. It's not implied where there's a little wiggle room 20 about fields and stuff like that. It's express preemption, and 21 it just says it. 22 So, that being the case, then the question 23 became should we create a mechanism that allows for ex parte 24 contact; and what we have done, because we had a lot of people, 25 Barbara Radnofsky, some other folks. I think John's point was Anna Renken & Associates (512) 476-7474 11802 1 well-taken, John Martin's, too, that there are situations where 2 an ex parte contact between a defense lawyer and a physician 3 can go a long way towards taking away unnecessary depositions, 4 for example. Defense lawyer is asking, "Will you be critical 5 of my client's treatment in care of your patient?" Stuff like 6 that. Barbara Radnofsky made a good point about how it's 7 massively in the cases of mass tort litigation to not have ex 8 parte contact when you have 500 hundred plaintiffs and 2,000 9 doctors. That's a lot of depos to take. 10 So we crafted a rule that we think sort of tries 11 to meet both circumstances. One being allowing some 12 court-administered ex parte contact; and number two, also 13 protecting the physician, who really is sort of innocent; and, 14 number three, gives some guidance to the Bar. In the five 15 county area where I practice -- and Judge Gray can, I think, 16 confirm this -- there might be 10 lawyers of the 250 in Ellis, 17 in Henderson, Navarro, Freestone, Limestone, and Hill County 18 who might know what HIPAA is; and of those 10, five of them 19 might know where to find it. So the rule that we proposed is 20 something that actually gives more definition and structure to 21 the average practitioner who doesn't have access to quite the 22 libraries or the other legal resources that other people do 23 have. 24 So the rule we think is a good compromise. It 25 allows for it to happen, but it's court-administered. Steve Anna Renken & Associates (512) 476-7474 11803 1 Harrison was often saying during our subcommittee meetings that 2 probably 80 percent of the defense lawyers he deals with, with 3 the structure of the order we have, there's going to be a 4 hearing on it. They will just agree as to what can be 5 discussed with the physician, and he'll send the defense 6 lawyers on their way. 20 percent of the lawyers he doesn't 7 trust, and he will want some court administration as to what's 8 going to go into the order. 9 We patterned the order or the rule on a concept 10 that Judge David Godbey has used in his court in Dallas. You 11 all know David. He's now on the Federal bench. He actually 12 used this and had good success with it where the order 13 delineates what is and what is not discussable between the 14 physician and the other attorney. It tells the physician they 15 can talk to anybody they want to and then the judge kind of 16 holds everybody's feet to the fire and makes sure that what's 17 appropriate gets discussed and what's shielded doesn't. So 18 that's what we think is the best approach for Texas, I guess, 19 actually. I'd be glad to answer any questions you might have. 20 Yes, sir. 21 MR. LOW: Yeah. Now, one thing. Your rule only 22 pertains to civil, only pertains to I believe you said civil 23 cases. 24 MR. JACOBSON: Yes, sir. 25 MR. LOW: Now, the Rule 509 and 510 pertains Anna Renken & Associates (512) 476-7474 11804 1 also to administrative proceedings. Why didn't you include 2 administrative proceedings in that as well? 3 MR. JACOBSON: I think we had a draft and one of 4 the versions we sent up did have administrative proceeding in 5 that, I think, and I don't know that we have any objection to 6 it. Some issues that come to mind are licensing issues and 7 also stuff like peer review between hospitals and clinics. 8 HIPAA itself actually lets ex parte contact occur in those 9 circumstances, so we left it out. We didn't include criminal 10 stuff in there because there is a very broad law enforcement 11 exception to HIPAA and some of the criminal attorneys on our 12 committee said, "Don't mess with it. It's working fine." 13 MR. LOW: No, I understand. But what I'm saying 14 is HIPAA is very broad. I mean, it doesn't distinguish between 15 administrative, civil lawsuits, or what. It doesn't do that, 16 but Rule 509 and 510 both say "civil lawsuits and 17 administrative proceedings," and I'm just wondering. I mean, I 18 don't know what administrative proceedings you would have, but 19 are you saying then that your rule would not apply in 20 administrative proceedings? Was that your intent? 21 MR. JACOBSON: No. No. That wasn't the intent. 22 MR. LOW: Okay. Then -- 23 MR. JACOBSON: Like I say, one draft that we 24 sent up to you-all did include the civil and administrative 25 proceedings, sort of quoted the language in 509. Anna Renken & Associates (512) 476-7474 11805 1 MR. LOW: Okay. So -- 2 MR. JACOBSON: We aren't opposed to that. I 3 don't think there's a reason for it. 4 MR. LOW: So should we adopt your rule and want 5 it to be consistent with 509, 510, you would have no objection 6 to that? 7 MR. JACOBSON: None whatsoever. 8 MR. LOW: Now, I also noticed that your rule -- 9 these rules pertain to doctors and professionals and your rule 10 pertains to all, so it is broader than the privilege, but it 11 was your intent to give guidance in the scope of HIPAA; is that 12 correct? 13 MR. JACOBSON: Well, yeah, in a sense, yes, sir, 14 the intent was to embody what HIPAA preemptively provides for 15 everybody. That's part of it, and also it's sort of an anomaly 16 in the rule. 509 applies to physician-patient but frequently 17 gets applied to chiropractors, or at least in practice people 18 assume chiropractors and hospitals and whatnot are also sort of 19 included within it. So we just kind of wanted to wrap our arms 20 around the entire universe of people who might follow HIPAA, if 21 that's a better way to approach it. 22 MR. LOW: Well, 510 pertains to all 23 professionals, which include doctors as well. And 509 and 510 24 aren't quite the same, but they both have the lawsuit 25 exception, and 509 for some reason includes peer review but 510 Anna Renken & Associates (512) 476-7474 11806 1 doesn't. You know, it excepts that from it. I don't 2 understand that. 3 MR. JACOBSON: We didn't either. We just 4 thought the easy thing to do was to take what HIPAA 5 preemptively provides and make that the standard rather than 6 trying to figure out all the nuances of some of the other 7 rules. 8 MR. LOW: Now, let me explain what this 9 committee was trying to do, and I'm going to let John speak 10 further on it. I'm not trying to disagree with you. I'm 11 saying what we were trying to do is to say, look, we don't know 12 about HIPAA. We don't know everything. I mean, we read it. 13 We see what it says, but it's changed about four times; and 14 even the articles that were written, like Barbara's article, is 15 no longer -- and it's not like they have to pass a new law. 16 This is -- I've forgotten what agency, you know, drew the -- 17 they were mandated to draw this, and they can change it. 18 So the committee's idea was, well, let's just 19 tell people to beware. Let's inform them of that. Let's don't 20 try to codify HIPAA in the rule, so it may change and then we 21 have to change. Let's just let it be a flowing thing, and I'll 22 let John address further. 23 MR. MARTIN: First let me say, I think that the 24 current version from the evidence committee clears up a whole 25 lot of what I was concerned about. Anna Renken & Associates (512) 476-7474 11807 1 MR. LOW: The committee over here? 2 MR. MARTIN: And I'll get to where I still have 3 some concerns; but the two biggest concerns I had were the peer 4 review investigation and other committee privileged 5 investigations; and I believe the last sentence of this takes 6 care of that, although, Buddy, in your letter that's in the 7 materials here you suggested having a footnote or a comment or 8 something saying this means that peer review isn't covered by 9 this and cite the statutes and so forth; and I'm certainly fine 10 with that. 11 But I would -- I also had some other concerns 12 about the last draft, some of which are -- some of which have 13 been taken care of in here, but the concerns I still have are 14 mostly set out in an e-mail I sent to Buddy that's in the 15 materials. It's right before Buddy's letter near the back of 16 the materials, and I'll try to summarize those very briefly. 17 The rule that they're proposing refers to 18 "healthcare information," and that term is not defined here or 19 in HIPAA or anywhere else to my knowledge. HIPAA uses over and 20 over the term "protected health information," the shorthand for 21 that has become "PHI"; and it seems to me that with HIPAA out 22 there with the use of the term "protected health information" 23 and if we're going to use in our rule "health information," 24 somebody somewhere is going to argue that those are two 25 different things and that health information is a broader term Anna Renken & Associates (512) 476-7474 11808 1 than protected health information. And so I think either we 2 should use "protected health information" as defined by HIPAA 3 or we ought to have a definition of what "healthcare 4 information" here means, because I think it's -- that argument 5 is going to be made that they are two different things, and 6 that's going to have to be something that would be sorted out. 7 Another concern I have about this, and maybe 8 there is an answer to this, but the first sentence of the rule 9 refers to "a party or party's representative." The last 10 sentence of the rule does not prohibit a party, a physician, or 11 a healthcare provider, and I'm not clear why we use "party or 12 party's representative" in the first line and "party, 13 physician, or healthcare provider" in the last line. Certainly 14 it seems to me in the last line you would mean "party's 15 representative" to include the lawyers who might be involved in 16 some of these communications, so I have that concern there. 17 Another concern I have, and I'm not sure what 18 people think this rule and HIPAA means with regard to this. 19 I've raised several examples of situations where there are just 20 basic underlying facts that were not privileged before and I 21 would argue are not privileged under HIPAA. In a medical 22 malpractice case the example I used over and over was the 23 situation of where there is a dispute about whether the doctor 24 left the emergency -- left the operating room during an 25 operation or not, and why should a lawyer not be able to go ask Anna Renken & Associates (512) 476-7474 11809 1 somebody, "Well, did Dr. Babcock stay in the OR the whole time, 2 or did he go out for a smoke for 30 minutes and come back?" 3 That's not a privileged communication, and yet 4 I'm not sure when we're just talking about something as broad 5 as healthcare information here whether that would be covered or 6 not. I think at our committee meeting that we had at Stephen 7 Tipps' office that there was pretty broad agreement that you 8 ought to be able to ask about things like that, and I would 9 also suggest that -- and I think Buddy's letter agrees with 10 this, that you ought to be able to -- a defense lawyer for a 11 healthcare provider ought to be able to ask another healthcare 12 provider, "Do you have any criticism of my client?" Again, I 13 don't think that would be a violation of this rule or of HIPAA. 14 Another issue that I just want to flag, and I 15 don't claim to know the answer to this, when House Bill 4 was 16 passed, 74.052 of the Civil Practice and Remedies Code requires 17 a specific form of authorization that uses language -- I don't 18 have it right before me, but it uses language "this includes 19 the verbal as well as the written" or something to that effect. 20 I have heard lawyers contend that that allows once an 21 authorization is signed -- and it has to be signed and provided 22 before the suit is filed, I think, Paula, right? 23 MS. SWEENEY: Right. 24 MR. MARTIN: That that allows an ex parte 25 conduct. I'm not expressing an opinion on that. I don't know Anna Renken & Associates (512) 476-7474 11810 1 whether it does or it doesn't, but that argument is out there, 2 and I think people need to be aware of that. 3 Finally, I've suggested in my e-mail that it's 4 pretty obvious from reading this, but the last two sentences 5 were added later at some point in the drafting process, and I 6 think the last sentence ought to have a "however" in front of 7 it or something to show -- because as it reads now the last 8 sentence is directly opposite to the first sentence, and it 9 needs a "however" or an "unless" or an "except" or something in 10 the drafting process I think just to be consistent. 11 MR. LOW: That's the State Bar, the State Bar 12 version? 13 MR. MARTIN: Right. Right. Right. So I think 14 if some of those changes would be made I would be comfortable 15 with their version. Having said all that, I still prefer what 16 I propose, but Justice Hecht doesn't like it, so I'm not going 17 to push that 18 MR. LOW: Now, he didn't tell me that. He 19 didn't seem too enthused about it, but that is -- that's my 20 interpretation, but the last time I interpreted what he was 21 going to do I got reversed, so beware of that. 22 MR. MARTIN: Well, it's a very subtle change. 23 MR. LOW: But before we go, let me -- I agree 24 with what John said, and I propose some answers, I mean, to 25 that. I think 74.052 is in a malpractice case, but John raises Anna Renken & Associates (512) 476-7474 11811 1 some good points, and I'm going to make a suggestion, but I 2 need -- Jeff Boyd is somewhat familiar with this because the 3 Attorney General has been asked to look into this, haven't 4 they, Jeff? And you and I have corresponded. Do you have any 5 update on that? 6 MR. BOYD: No, I don't. To give you, again, the 7 background, the Legislature in the last session required the 8 Attorney General to put together a task force of people from 9 around the state of specialties and practices, lawyers, 10 doctors, and others, healthcare providers, to review all of 11 Texas law, statutory, rules and case law, and prepare and 12 provide to the Legislature with the Attorney General's 13 signature a report on what state laws are preempted by HIPAA 14 and for which none of HIPAA's preemption exceptions apply and 15 for those laws to make recommendations on how they should be 16 changed in order not to be preempted by HIPAA. 17 The subcommittee of that group that I'm a part 18 of included these Rules 509 and 510, and in that group, the 19 group concluded that HIPAA does not preempt 509 and 510 because 20 a physician or healthcare provider can comply with both. 509 21 and 510 do not require the provider to disclose protected 22 health information, but instead address only whether or not 23 there is a waiver of that under Texas privilege law, and so my 24 purpose for sort of getting into this mix was to make sure that 25 Buddy knew that at least our recommendation to the Attorney Anna Renken & Associates (512) 476-7474 11812 1 General would be that he should not report that 509 and 510 are 2 in any way preempted by HIPAA. 3 In my view what this issue comes down to for us 4 is not -- is only minimally impacted by HIPAA, if at all. I 5 think HIPAA complicates the analysis but doesn't dictate the 6 result. I think the result is a question of do we want to 7 adopt a rule that by rule addresses the question of whether ex 8 parte communications with treating physicians should be allowed 9 or not. By way of example, if we wanted to, the Court could 10 adopt a rule that just requires every plaintiff in a personal 11 injury case to sign an authorization at the beginning of the 12 case saying that they authorize the opposing counsel to have 13 communications with any treating physician in which information 14 for which the privilege is waived can be disclosed. I'm 15 just -- I'm not proposing that rule. I'm just saying that 16 would solve any HIPAA problem. So it's really a policy issue, 17 do we or do we not want to adopt a rule that restricts the ex 18 parte communications? 19 MR. LOW: And I agree. In my letter I agreed 20 with you that it didn't change it. It just provides a 21 procedure of how you get it. 510 is with permission and how 22 you get it without permission, and basically all of them are 23 interwoven in there with notice. Judge Godbey and I have 24 spoken several times about this and he raised the question what 25 if there was a rule that said that you have to sign a consent, Anna Renken & Associates (512) 476-7474 11813 1 a HIPAA consent, when you filed the lawsuit, but of course 2 there would be arguments that that's not opening, that's 3 closing the door to the courthouse or something, but you arrive 4 at that. 5 But that is an issue, and again, as I understand 6 it, John -- what I would propose we do, I agree with John, but 7 I'd also agree that the State Bar approach takes care of 510. 8 It takes care of the conflict between the Safety Code and 5 -- 9 and 510 now, which there is a conflict. There is no way -- one 10 of them provides a lawsuit exception, and the other one 11 doesn't. 12 And I would think that if they could address or 13 maybe if John would not mind communicating with Jack to try to 14 address those to bring that fight to the evidence subcommittee, 15 I think that might be the answer to that, but if you want to 16 vote today on whether you just have what we have done or want 17 to modify the State Bar, I'm glad to do that, but my 18 recommendation would be that John get with Jack and they work 19 something because it sounds like to me it would answer more 20 problems, even though I think certainly my committee did an 21 excellent job. Is that okay? 22 CHAIRMAN BABCOCK: That sounds good to me. 23 Anybody have any problem with that? Yeah, Judge Christopher. 24 HONORABLE TRACY CHRISTOPHER: I don't understand 25 the intent of the last sentence in the subcommittee's rule, the Anna Renken & Associates (512) 476-7474 11814 1 State Bar's rule. 2 MR. LOW: All right. You don't understand it? 3 HONORABLE TRACY CHRISTOPHER: Beyond the way 4 it's written, so I think it needs to be a lot clearer. 5 MS. SWEENEY: Are you-all talking about 510? 6 HONORABLE TRACY CHRISTOPHER: I mean, if we're 7 sending it back, which I'm happy to do, I'm just throwing out 8 to you that that last sentence doesn't make sense to me. 9 MR. LONDON: Let me ask you for some guidance. 10 The reason that sentence is in there is to address John 11 Martin's concern about intercommunications between peer review 12 committees and doctors and hospitals who are separate entities, 13 but not parties. So there's no lawsuit in the last instance. 14 We're talking about a case in which there is no lawsuit on 15 file, but you still have people with possession of medical 16 information who are communicating. So there is a dissemination 17 of healthcare information that is outside the lawsuit process. 18 Well, this rule would not prohibit that. It brings it within 19 the -- 20 HONORABLE TRACY CHRISTOPHER: But why do we -- I 21 don't understand why we have to have it in this rule. 22 MR. LONDON: To address John's concern with 23 that. To take care of people who are communicating privileged 24 information even though they may not even have an attorney at 25 that stage. Anna Renken & Associates (512) 476-7474 11815 1 MR. MARTIN: The problem with the rule that they 2 submitted the first time was that if you read it literally the 3 hospital could not conduct a peer review investigation or 4 committee investigation or a root cause investigation of the 5 event if a lawsuit got filed. They would have to bring it all 6 to a screeching halt. They couldn't conduct the investigation, 7 and that's not -- that's not a good thing for our public if 8 hospitals can't investigate doctors. 9 The other thing is that -- and this is a very 10 real situation that happens very often, particularly at 11 hospitals where certain high risk procedures are done. People 12 who are plaintiffs in lawsuits are being treated in that 13 hospital while they're suing the hospital for something that 14 happened before, and the hospital personnel need to be able to 15 communicate about the person's healthcare information with 16 their doctors. And the rule as drafted before would -- if you 17 read it literally, it would have been kind of an absurd reading 18 of it, would have prevented that. 19 So they have -- and, Tracy, it's not just the 20 first part of this. This has gone through several revisions 21 since we discussed this several meetings ago, but I think what 22 they've done -- I agree with Judge Christopher that the last 23 sentence needs to be made more clear. One of the suggestions I 24 made was this "party, physician, or healthcare provider" 25 doesn't jive with the first sentence. I think the last Anna Renken & Associates (512) 476-7474 11816 1 sentence needed to be made more clear. Buddy suggested a 2 footnote from that sentence citing the peer review statutes and 3 so forth. 4 HONORABLE TRACY CHRISTOPHER: I mean, if that's 5 what you're worried about, that they can't have peer review 6 communications, I mean, it seems to me if we're talking about, 7 you know, a situation where the way you're reading it -- maybe 8 I'm just a little confused about the whole idea behind this 9 exception. I mean, if you're worried that a plaintiff is in 10 the hospital and the nurse can't talk to the doctor about the 11 care given to the plaintiff? Under the rule? I mean -- 12 MR. LONDON: There's a second reason behind it. 13 HONORABLE TRACY CHRISTOPHER: -- that wouldn't 14 necessarily be peer review communication. It wouldn't 15 necessarily be privileged communication, so I don't understand 16 your little exception. 17 MR. LONDON: There's a second reason for that, 18 and that's joint defense communication. 19 HONORABLE TRACY CHRISTOPHER: I remember the 20 joint defense discussion. 21 MR. LONDON: We wanted to be sure and address 22 that. If this or a similar qualifier weren't in there then I 23 think we're back to John's problem. Literalistically read, you 24 could object to communications between coparties who wanted to 25 be cooperating in joint defense communications. Anna Renken & Associates (512) 476-7474 11817 1 HONORABLE TRACY CHRISTOPHER: Well, I understand 2 if we're talking about when a lawsuit is filed and we want to 3 include the plaintiff. 4 MR. LONDON: Right. 5 HONORABLE TRACY CHRISTOPHER: That's perfectly 6 understandable, but it sounds like you're talking about when to 7 address, you know, peer review information where there may or 8 may not be a lawsuit at all. 9 MR. MARTIN: This only applies if there's a 10 lawsuit. 11 MR. LONDON: That's right. 12 MR. MARTIN: But if there's a peer review 13 investigation going on and the lawsuit gets filed, one of the 14 earlier versions that the Rules of Evidence committee or State 15 Bar committee proposed, if you read it literally, would have 16 meant that there couldn't be any peer review investigation. 17 MR. LONDON: Could have been read to stop the 18 investigation. 19 MR. LOW: Judge Gaultney, I believe you had your 20 hand up. 21 HONORABLE DAVID GAULTNEY: I was just going to 22 follow up on what my concern is, and one of them is, as I 23 understand the proposal, it's to implement HIPAA. It's not to 24 create a new privilege under state law. 25 MR. LONDON: That's correct. Anna Renken & Associates (512) 476-7474 11818 1 HONORABLE DAVID GAULTNEY: Okay. Why would this 2 not -- as I understand it, it creates a procedure for the 3 discovery of medical information. Why would it not more 4 appropriately be a procedural rule rather than an evidence 5 rule, number one, and we already do have a provision in our 6 procedural rules in which in response to a request for a 7 disclosure a medical authorization can be provided for medical 8 records. 9 The rule as I see presented doesn't simply deal 10 with the verbal communication of medical information. It, I 11 think, deals with written and any communication, and I'm just 12 wondering if our procedure currently complies with HIPAA for 13 obtaining the written information, but I'm wondering if the 14 focus should not be on an evidentiary rule on what comes into 15 evidence and what doesn't but how the information is gathered, 16 whether it's written or oral and separating discovery. 17 MR. JACOBSON: That argument was raised, and the 18 privileges do two things, as Jack noted. No. 1, they control 19 what a trial judge admits into evidence, and that doesn't 20 preclude a physician from answering a question by a lawyer. I 21 mean, it specifically says it's okay to do that, but the 22 privilege is also to a large extent to control when it's 23 discoverable, and so since there is sort of a dual purpose of 24 the privileges we felt like we needed to look into it. It may 25 very well be more appropriately put in a procedural rule, I Anna Renken & Associates (512) 476-7474 11819 1 think. I don't think we have a -- I didn't have a real problem 2 with that, but the reason that we addressed it was because the 3 Rules of Evidence have this trial -- what gets into evidence 4 before a jury as well as a what is discoverable kind of aspect 5 to it, and HIPAA really did impact the issue, and the ex parte 6 issue came to us for resolution or at least asked for our 7 input, and because HIPAA answered that question I think fairly 8 early, we thought we would be better off saying something 9 rather than just sending a memo back saying, "Sorry, it's 10 outside of our jurisdiction." 11 HONORABLE DAVID GAULTNEY: Well, do you agree 12 with -- Jeff's comment I think was that really the question is 13 not ex parte is not governed so much by HIPAA, that a written 14 authorization could be provided or some thing around it, but 15 it's really more of a policy question of do we want to permit 16 ex parte communication? 17 MR. LONDON: Well, I think the short answer is 18 absent there being a policy decision, our draft is at least a 19 mischief control draft. You can always voluntarily authorize 20 ex parte communication by signing an authorization, but at the 21 present you can't force someone to sign one. The rules allow 22 you to sign an authorization or provide the records. I think 23 most plaintiffs provide the records, so you can't force someone 24 to agree to ex parte contact absent a court order. At the same 25 time, the rule addresses the situation where someone might come Anna Renken & Associates (512) 476-7474 11820 1 into information outside the formal discovery process. Then 2 the judge has to decide what to do about it. He may let it in; 3 she may let it in. That's a case by case call. Buddy. 4 MR. LOW: See, and 512 has a provision, standard 5 disclosure for judicial and administrative proceedings. Now, 6 that's the reason I wanted to add administrative to yours, and 7 it says, "Permitted disclosure. A covered may disclose 8 protected health information in the course of any initial or 9 administrative proceeding in response to an order of a court or 10 administrative tribunal provided," and go on, "in response to a 11 subpoena, discovery request, or other lawful process that is 12 not accompanied by an order." 13 Now, that -- and, I mean, "provided if" and 14 there are a lot of ifs down there. All of them pertain to 15 notice. You have to give all kinds of notice and all that, so 16 I think the question if we go to this and then somebody 17 proposes that we have a rule that says when you file a lawsuit 18 you have to give a HIPAA permission then that would be another 19 issue, but I want to get over this step and then get to the 20 next. 21 HONORABLE KENT SULLIVAN: I just want to briefly 22 echo the comments from Judge Christopher and Justice Gaultney 23 with respect to the proposed 514. As I read it through, my 24 perception was that that last portion in the exception was 25 intended to say certain conduct would not constitute a waiver Anna Renken & Associates (512) 476-7474 11821 1 of the privilege, and that would be the issue for a rule of 2 evidence, and I agree with Justice Gualtney with respect to 3 regulating conduct of the parties and the broader issue of just 4 disclosure as opposed to the potential admissiblity of evidence 5 in a proceeding. It seems to me that's something for the Rules 6 of Civil Procedure. 7 MR. LONDON: We had one other difficulty that 8 this rule would address which your question doesn't quite 9 solve. We're seeing increasing instances in which someone 10 other than a plaintiff's medical condition is an issue. Truck 11 drivers on drugs, doctors on OxyContin, parents, airline 12 pilots. HIPAA applies to all of the medical records, not just 13 plaintiff's records, and our rule theoretically would solve 14 that issue for X in each of those instances. 15 MR. YELENOSKY: Just a minor point, Buddy, but 16 the rule -- 17 THE REPORTER: I can't hear. I'm sorry. I 18 can't hear you. 19 MR. YELENOSKY: The rule purports to deal with 20 administrative proceedings, and the Rules of Evidence don't 21 apply to all administrative proceedings. They don't even apply 22 in small claims court, which is a problem that existed before, 23 but we should just at least know -- I imagine in those 24 administrative proceedings it's just HIPAA and the Health and 25 Safety Code would apply. Anna Renken & Associates (512) 476-7474 11822 1 MR. LOW: But, see, the only reason I said that 2 is Rule 509 says "administrative proceedings" and 510 doesn't; 3 and as I said, I don't even know what administrative 4 proceedings, whether they would use it or not. 5 MR. YELENOSKY: Well, you could have an 6 employment compensation claim. I don't know if there's any 7 worker's comp stuff going on anymore, but in those proceedings 8 Rules of Evidence don't apply. 9 MR. LOW: All right. Is -- now, I think we can 10 also face the issue once we get the rule drafted, does it 11 belong -- where it belongs, but I think I'd like to try to work 12 on the rule before I work on that. Is that agreeable with 13 everybody that we do as I suggested and then we come back and 14 present it to you? 15 We can decide at that point, number one, where 16 it belongs; and if somebody wants to provide a rule that before 17 you can file a lawsuit we can argue you have to do that. We 18 can face that issue, but is it all right if we face this issue 19 the way I've proposed with John and Jack working something for 20 my committee or our committee and then present it back to you? 21 CHAIRMAN BABCOCK: Yeah. I think that's good. 22 Have we gotten enough discussion on Judge Christopher's concern 23 that the last sentence doesn't say to her what we're trying to 24 achieve? 25 HONORABLE DAVID GAULTNEY: I think that -- I Anna Renken & Associates (512) 476-7474 11823 1 think the point she raises is the concern that we're creating 2 or we're dealing with a privilege that I don't think the 3 rule -- I don't think the rule was designed to try to define 4 privileges. It was designed to implement HIPAA, and so I think 5 that's where the rule gets some ambiguity, is that it begins to 6 look like a state privilege and, you know, like a state rule of 7 privilege. 8 MR. LONDON: Of course, the last sentence was 9 intended not to -- not with the committee thinking, "Hmm, can 10 we create a state privilege" so much as "Hmm, John Martin has 11 got a very good point." If we read our previous draft 12 literalistically, it could be interpreted by hospitals, 13 doctors, peer review folk, to say, "We can't talk anymore, a 14 lawsuit's been filed." That's the vice we wanted to correct or 15 address. 16 HONORABLE DAVID GAULTNEY: Right. 17 MR. LONDON: And we're certainly open to 18 continuing to draft that to solve that problem without creating 19 some previously unknown rule of privilege. That's not our 20 goal. 21 HONORABLE DAVID GAULTNEY: Right. But I think, 22 as I understand John's concern, it's not under HIPAA. 23 MR. MARTIN: Yeah. 24 HONORABLE DAVID GAULTNEY: I mean, you can do 25 whatever they can do under HIPAA. If this is intending to Anna Renken & Associates (512) 476-7474 11824 1 implement that and go broader and more restrictive than HIPAA 2 then you are -- because I think that's one of the problems with 3 it being in an evidentiary rule; and it's also, I think -- I 4 think if it's not intending to change the state privilege rule 5 where you waive when you file and it's not intending to change 6 HIPAA and as I understand John he's comfortable under existing 7 state privilege and he's comfortable under HIPAA, then we've 8 got a new animal here that someone is going to read, since it's 9 in the evidence thing, as perhaps creating a state privilege. 10 MR. MARTIN: I certainly don't want it to be any 11 more restrictive than HIPAA, and I think our goal should be to 12 draft a rule or write a rule that is not more restrictive and 13 gives some guidance as to what they ought to be doing in this 14 situation. 15 CHAIRMAN BABCOCK: Ralph had his hand up, and 16 Richard. 17 MR. HARRISON: If I could just speak to that for 18 just one moment, the reason that we added the language where 19 the communication would be privileged is that we did not seek 20 to create any new privilege. We were just saying that this 21 rule doesn't prohibit these identified people as being in 22 violation of this rule if their conversation -- if their 23 communication is privileged in some other respect, created by 24 some other rule. So the language -- and it may not be artfully 25 drafted, but it was intended not to create a new privilege but Anna Renken & Associates (512) 476-7474 11825 1 to recognize that there may be other privileges that apply. 2 MR. LOW: I talked to Barbara, and she says she 3 does not attempt -- she wrote the article in the Law Review, 4 you know, and nobody else is now attempting ex parte, so I 5 think we need to make it clear in the rule that she doesn't do 6 that. She used to take the position she could under state law 7 and after HIPAA she can't, so I think John's point is 8 well-taken that we're just trying to draft something that's 9 consistent and gives guidance to the lawyers but yet doesn't 10 cut off something that a lawyer has or hospital has a right to 11 do 12 CHAIRMAN BABCOCK: Ralph and Richard want to say 13 something urgently. Go ahead, Ralph. 14 MR. DUGGINS: Jack, in your -- on page eight of 15 your letter to Buddy, I think that's where you discuss the 16 majority of your committee wanted to tie this proposed evidence 17 rule to Rule 215. Are there any other evidence rules that are 18 tied to the sanctions rule? 19 MR. LONDON: I don't think there were any 20 literally tied to the sanctions rule. If there are, I'm 21 willing to be corrected, but not that I recall. 22 MR. DUGGINS: Okay. 23 CHAIRMAN BABCOCK: Richard. 24 MR. LONDON: In the original proposal it was 25 going to be an automatic exclusion as a violation of HIPAA. Anna Renken & Associates (512) 476-7474 11826 1 When this language was drafted to let people know that the 2 trial judge could but did not necessarily have to invoke a 3 sanction such as exclusion or a 215 excluding sanction. 4 CHAIRMAN BABCOCK: Richard, then Bill. 5 MR. ORSINGER: I'm especially troubled by 6 everything you've written that precedes the word "except"; and 7 I would suggest to you that you not try to -- I would suggest 8 that you not try to restate what the privilege is, but allow 9 the privilege to be stated in the existing rule of evidence, 10 the state law, and the Federal law; and what you draft is an 11 exception to Rule 509 and 510, add another exception onto the 12 end of those two rules, and then let us worry about defining 13 what the exception is, because current 509 and 510 are out of 14 phase in my opinion with both the Health & Safety Code and 15 HIPAA. But that's not your problem. 16 Your problem, I think is to create an additional 17 exception to Rule 509 and 510 to permit this procedure you 18 want; and if you guys are going to try to write a restatement 19 of the privilege as part of your exception then you're 20 involving yourselves in a much larger dispute, which is how 21 should the privilege be described. So it would make your job 22 easier and accomplishes what you want to just create an 23 additional exception to the rule and not try to amend Rule 509 24 and 510 to be compliant with HIPAA or the Safety Code. 25 CHAIRMAN BABCOCK: Bill, you had a comment, and Anna Renken & Associates (512) 476-7474 11827 1 then Stephen. 2 PROFESSOR DORSANEO: I think I may agree with 3 what Richard said, but my comment -- 4 CHAIRMAN BABCOCK: But you're cautious about it? 5 PROFESSOR DORSANEO: Yes. I'm always cautious 6 about it. First, I'm not altogether sure I understand what 7 he's saying and then I'm not sure whether I agree with it once 8 I master it; but if the last sentence is going to be redrafted, 9 I think it ought to be (1), (2), (3), move it up; and that 10 assumes that you're not going to do what Richard said, and 11 that's try to create specific exceptions. You could add it in 12 as a third category by making a third category of exception by 13 just some simple language adjustments, it seems to me. 14 CHAIRMAN BABCOCK: Okay. Stephen. 15 MR. YELENOSKY: I do agree with Richard. I 16 don't know if another way to say it is that by making the first 17 sentence in a negative here, I mean, you could flip that. You 18 don't really need the last sentence if you start by saying 19 something like "A communication that would otherwise violate a 20 privilege or HIPAA is permitted, (1), by release; (2), by form 21 of discovery; (3)," by whatever, but don't we need to make some 22 reference to HIPAA, Richard, because we are trying to basically 23 flesh out what in HIPAA is not clear? 24 MR. ORSINGER: Well, here's what -- we have a 25 whole rule subsection (f) on consent. It's already written, Anna Renken & Associates (512) 476-7474 11828 1 and written authorization is consent. So if we write this in 2 addition to consent we've got two different consent standards, 3 and I would argue we don't need a different consent standard. 4 We need a consent standard that fits state and Federal law, so 5 I really feel like we need to rewrite the entirety of Rule 509 6 and 510, but on your issue whether we ought to mention "subject 7 to HIPAA or state law" -- 8 MR. YELENOSKY: Well, not subject to, but 9 basically what might otherwise be considered a violation of 10 HIPAA we're laying out what you can do. 11 MR. ORSINGER: The problem I have with that is 12 it might take us a year to even agree how to put HIPAA into one 13 paragraph and then we've got to cope with the practice -- or 14 the safety, Health & Safety Code, which is different from HIPAA 15 but is binding to the extent that it's more restrictive, so the 16 most I would favor personally if I was on that drafting process 17 is to refer to them by reference 18 MR. YELENOSKY: Right. That's what I mean. 19 MR. ORSINGER: And especially because the 20 Federal law may change or regs may issue, rather than trying to 21 simplify HIPAA in one sentence and then also reconcile it to 22 the state statutes 23 MR. LONDON: That's why we tried not to define 24 it in the rule, because once you define it in the rule they 25 will change it. Anna Renken & Associates (512) 476-7474 11829 1 MR. ORSINGER: But I really do think that you 2 guys don't need to involve yourself in a fight on what's 3 privileged. You just want one special exception to the 4 privilege. Isn't that really what you want? There's an 5 exception that applies if this procedure is invoked. 6 MR. LOW: What they're trying to do is give 7 guidance to the lawyers as best we can. We have something that 8 the rule refers to, and we're trying to give guidance that's 9 consistent with HIPAA, the rules, and everything. There's 10 already in 509, section (5) about disciplinary proceedings. 11 It's not in 510. But what they propose is not inconsistent 12 with section (5), the fifth exception in 509, so what we're 13 trying to do is when people look at this and they -- and what's 14 given rise to the problem, they look at it and they say, 15 "Uh-oh, lawsuit, exception. Man, let's grab it." All right. 16 We're trying to tell people that see that, when they look at 17 that they're going to say, "Well, wait a minute. Here's what 18 I'm bound by," and we need to draft something that's not 19 inconsistent with Federal or state law, but gives the same 20 protections that John is talking about. 21 MR. ORSINGER: Well, Buddy, if you want to give 22 guidance, I would suggest that you take the procedure part of 23 this and put it in the discovery rules and that you write an 24 exception to the doctor-patient privilege that's not encumbered 25 with procedural rules, because this, this fuses state law, Anna Renken & Associates (512) 476-7474 11830 1 Federal law, rules of privilege, and rules of procedure all 2 into one paragraph. 3 MR. LOW: Okay. That's the very point I raised 4 earlier. Let's draft the substance of something and then 5 decide what needs to go where and what part. I'm not arguing 6 with you, but I want to know, I want to know what it is before 7 I know where to put it. 8 MR. ORSINGER: Okay. 9 MR. JACOBSON: And the question we were asked to 10 answer is are ex parte contacts, unfettered ex parte contacts, 11 allowed under -- or should they be allowed under Texas law. 12 The answer is "No, unless you do this." That's -- I mean, if 13 you could take all of this and distill it down, that's the 14 answer to the question. So in a sense it is substantive. We 15 don't think under the current 509 ex parte contacts are allowed 16 unless you follow a process like one we have laid out for you. 17 So, I mean, it is substantive in that sense. 18 CHAIRMAN BABCOCK: Okay. So, Buddy, your 19 proposal is that -- 20 MR. LOW: Let Jack and John get -- 21 MR. LONDON: I would like to have John and maybe 22 Richard meet with our committee 23 MR. LOW: Then, John, our committee would want 24 you-all to come up with something or some differences or 25 something and come back. But our committee, you and our Anna Renken & Associates (512) 476-7474 11831 1 committee, will meet and make some proposals here. Is that 2 okay with you? 3 MR. MARTIN: That's fine. 4 CHAIRMAN BABCOCK: Is that okay? All right. 5 Harvey. 6 HONORABLE HARVEY BROWN: When you do that, I do 7 think John's point about the "healthcare information" being 8 defined in some way is an important point that it doesn't 9 define that. 10 MR. LOW: I totally agree with that. 11 MR. LONDON: We have discussed that, and our 12 concept is to either refer to HIPAA or put it in the note, too. 13 MR. ORSINGER: Well, I would reiterate, though, 14 that if all your drafting is an exception, you're going to take 15 the definition that 509 gives to what's confidential or what 16 510 gives to what's confidential. If we don't like what 509 17 says is confidential, we ought to write the first part of 509 18 that defines confidentiality, but what's happening is that 19 we're creating a special use and then we're revising the 20 fundamental concept of what's privileged in one little subpart 21 when we leave the 99 percent of the rest of the rule with what 22 we now say is a dysfunctional definition of what's privileged. 23 I don't think you guys ought to write what's privileged. I 24 think we ought to write what's privileged, and you ought to 25 write a special exception to that privilege. Anna Renken & Associates (512) 476-7474 11832 1 MR. LONDON: I wanted to make a statement, but I 2 do think that's what the Rules of Evidence committee thinks it 3 ought to do is address privileges, and we try -- 4 MR. ORSINGER: But if you want to do that then 5 you ought to rewrite the definition of privilege. 6 MR. LONDON: We bring them back to you-all and 7 you-all can fix them, but that is within the scope of our 8 research mission. 9 MR. ORSINGER: See, what you've done is you've 10 redefined what's privileged for purpose of one use, and it 11 seems more sensible to me for us all to agree on that the 12 definition of medical privilege, which is up in the front of 13 509, is the same for all litigation and all uses, same for 510 14 on mental health; and if you guys want to participate in that, 15 I think it's great; but don't define a special definition of 16 privilege for this one application and leave the rest of it 17 uncorrected. 18 MR. LONDON: Two quick answers. One, if you-all 19 want to expand our mandate, I'm sure the committee will do it, 20 but, number two, we've been at this for three years, and I 21 envision what you're describing taking another couple of 22 contentious years to get it back to you. 23 MR. LOW: Let's please try to do this and then 24 when -- then if Richard has some suggestions we can get 25 another, you know, either patch it or just redo it, but it's Anna Renken & Associates (512) 476-7474 11833 1 been only two years, I'd like to get something, even if it's 2 wrong. 3 MS. SWEENEY: I would like to thank the members 4 of the committee because I really appreciate you-all's work. I 5 don't want anything that's been said here to be construed as 6 anything other than that. You-all have done a great job, and 7 Buddy has done a great job, and I think this is a really, 8 really good effort, and thank you for bringing it. 9 MR. LONDON: Thank you very much. Actually, 10 Steve Harrison's feelings were hurt right until you said that. 11 I don't take a lot of credit for what's there, but Terry, 12 Steve, Professor Goode, the subcommittees have really worked 13 their cans off, and the full committee has done a lot. We have 14 really negotiated this out pretty hard. Thanks for comments. 15 Thank you. 16 CHAIRMAN BABCOCK: Judge Christopher. Bill 17 PROFESSOR DORSANEO: I frankly would like to see 18 or get your input on whatever problems there are with 509 and 19 510 because when we come back to this we will not just deal 20 with this little piece, and if we have your advice and 21 information, we're less likely to screw up. 22 MR. LONDON: Well, the reason this is in a 23 proposed new rule, because of very finite distinctions that 24 Buddy pointed out. 509 is only physicians and HIPAA is broader 25 than that. Anna Renken & Associates (512) 476-7474 11834 1 MR. JACOBSON: Chiropractors, all kinds of 2 stuff. 3 MR. LONDON: That's why we initially opted to 4 put it in a separate rule altogether. We don't mind taking a 5 whack at the 509 modification to match HIPAA, if that's what 6 you-all think you'd like to see us try, but let's -- 7 CHAIRMAN BABCOCK: Let's go step by step. The 8 Court asked us to deal with the ex parte issue, and we have 9 been a long time at it. So let's just stick to that. 10 MR. LONDON: All right. 11 CHAIRMAN BABCOCK: And, Buddy, your idea of 12 having them tinker with the issues that have been brought up 13 here would be good. 14 MR. LOW: Right. Right. And thank you. Thank 15 you. 16 CHAIRMAN BABCOCK: Yeah, we all thank you for 17 what you've done. 18 MR. LOW: And Mark Sales, too. 19 MR. LONDON: Mark had a death in the family and 20 couldn't be here. 21 MR. LOW: I understand, but he has put a lot of 22 time in on this. He and I have put a lot of time. He has met 23 with our committee and he's done a lot 24 CHAIRMAN BABCOCK: Okay. Thanks, guys, and, 25 Buddy, are there other evidence issues that are ready for Anna Renken & Associates (512) 476-7474 11835 1 discussion today? 2 MR. LOW: Okay. Let me -- thank you, Jack. All 3 right. Let me get my stuff up. Jack, we're fixing to go next 4 into 407b. 5 MR. LONDON: Okay. 6 MR. LOW: And this came to us from you 7 MR. LONDON: What happened was that HB4, the 8 Legislature mandated an amendment to 407a in products cases, 9 and the Supreme Court implemented that mandate. Nobody 10 mentioned 407b, and the defense lawyers on our committee 11 pointed out that 407b wasn't amended as we sent it to you, that 12 there was some fairly clear question whether or not 13 intermediate suppliers and -- 14 MR. LOW: For the reason being that the 15 provision said, "This shall not change products liability 16 cases" was taken out. 17 MR. LONDON: That's right. 18 MR. LOW: So when you take that out and you look 19 at section (b) -- I'm sorry to interrupt. 20 MR. LONDON: No, you can take it away. That's 21 fine. 22 MR. LOW: So it was felt that an innocent seller 23 in the chain wouldn't be taken care of because they couldn't 24 prove a recall or certain other things because they had said, 25 "No, this doesn't pertain to" -- products is out now, and so Anna Renken & Associates (512) 476-7474 11836 1 you had a provision, and our committee voted unanimously to 2 adopt to take care of that, and you'll see it's on draft two of 3 the proposed amendment. You'll find the purchase and purchaser 4 we include and take care of that. There was no controversy in 5 the committee. Let's see how much controversy we've got now. 6 CHAIRMAN BABCOCK: Anybody have any comments on 7 that? Richard, surely? 8 MR. ORSINGER: You know, Chip, I don't know 9 enough about the issue to have an opinion, so maybe that's true 10 on more than just this. 11 CHAIRMAN BABCOCK: Never stopping him before. 12 MR. LOW: You should have been the chairman of 13 the committee then, because that's me. 14 CHAIRMAN BABCOCK: Anybody else? Okay. 15 MR. LOW: The other thing is 705 -- let me get 16 refocused. There's a problem in that our 705 is Federal 703, 17 and there is language -- the Federal rule was amended. I've 18 given you the Federal rules, and then the State Bar committee 19 adopted the Federal rule except they did not use the words 20 "substantially," you know, outweighs. Our committee chose to 21 use "substantially outweighs" for two reasons. Number one, the 22 Federal rule said that. Number two, our 403 said that, 23 substantially outweighs, prejudicial substantially outweighs, 24 and so we adopted the State Bar rule with one word change, 25 basically. In fact, ours is verbatim the Federal rule Anna Renken & Associates (512) 476-7474 11837 1 So to underline the expert's opinion and so 2 forth. So we adopted verbatim the Federal rule. The State Bar 3 did basically the same thing, other than they said "outweighs," 4 and we put "substantially outweighs," and I told you why, was 5 because the Federal rule did it. 403 does it, and we wanted to 6 be consistent. No controversy in our committee over that, and 7 I'm assuming none today 8 CHAIRMAN BABCOCK: You're assuming because 9 nobody said anything, so you're assumption carries. 10 MR. LOW: All right. I'm through. 11 CHAIRMAN BABCOCK: Okay. 12 MR. LOW: Thank you, again. 13 CHAIRMAN BABCOCK: Thanks. There's probably 14 some lunch out there if you want to -- 15 MR. LONDON: Well, we've just had ours eaten a 16 little bit, but -- 17 MR. LOW: Welcome to the committee. 18 MR. LONDON: Thank you, again. 19 CHAIRMAN BABCOCK: There's a short item that we 20 can cover I think relatively quickly before lunch. Is lunch 21 here? Do you know? 22 MS. SENNEFF: I don't know. 23 CHAIRMAN BABCOCK: You might check on that. And 24 that is Justice Hecht sent a letter about a year ago in the 25 wake of House Bill 4, and there was a table that was attached Anna Renken & Associates (512) 476-7474 11838 1 to that that dealt with all the things that Justice Hecht and 2 the Court could see in House Bill 4 that needed dealing with, 3 but as you can tell from the letter that he sent me, he also 4 asked us to think about whether there were any other rules that 5 needed discussion or change in the wake of House Bill 4, and I 6 think the first thing we need to accomplish is to determine 7 whether in the -- first, in the view of the Court, we have 8 gotten through the summary of the rule changes to examine and 9 then, secondly, for the chairs of the subcommittees to report 10 in as to whether or not they have determined whether there's 11 any rules that we perhaps missed. 12 Lisa, you probably haven't had a chance to go 13 through the summary to determine, but -- or maybe you have. 14 No? 15 MS. HOBBS: No. 16 CHAIRMAN BABCOCK: Okay. I think that's 17 something that before the next meeting we ought to try to do, 18 so, Angie, write a note that Lisa and I are going to try to go 19 through the chart. And is there any subcommittee chair here -- 20 Pam just left on Rule 1 through 114. Richard, have you looked 21 at your rules to see if there's anything that needs to be done? 22 MR. ORSINGER: You know, Chip, I haven't looked 23 at it within the last 48 hours, but I've looked at it before, 24 and I'm confident that between Rules 15 and 165a we addressed 25 all of the changes that were required. Anna Renken & Associates (512) 476-7474 11839 1 CHAIRMAN BABCOCK: Okay. Judge Peeples is not 2 here. We'll ask him the same question. 3 Bobby, on 171 through 205, is there anything 4 that -- or do you need some time to look further? 5 MR. MEADOWS: I'd like a little more time. I 6 know this came up last year when I was in trial and Tracy 7 looked for me. Did you look to see whether or not there was 8 anything outstanding by way of letter or request? 9 HONORABLE TRACY CHRISTOPHER: No. 10 MR. MEADOWS: I think we'd like more time just 11 to scrub that down. 12 CHAIRMAN BABCOCK: Okay. Let's at the next 13 meeting report on that; and, frankly, if you spot something, 14 the charge is to go ahead and look at it and recommend, so let 15 us know. Ralph, how about on 215? 16 MR. DUGGINS: Well, I talked with Lisa about 17 this last night, and over on page five of the table at the 18 bottom of the page the comment from Chris about a new system of 19 notice and pleadings in what used to be 4590(i) cases, but 20 we're not aware that the Court has ever promulgated the 21 standards of discovery, and so I don't know how at this point 22 there's anything for us to do. 23 MS. SWEENEY: They have not. 24 MR. DUGGINS: That's what I'm saying. So I 25 don't think that at this point there's anything for the Rule Anna Renken & Associates (512) 476-7474 11840 1 215 committee to do until those are promulgated 2 CHAIRMAN BABCOCK: Okay. Paula, on 216 through 3 299a, do you need some time or have you looked at it? 4 MS. SWEENEY: Let me do another quick 5 run-through of it. I'm not aware of anything else that needs 6 doing. If anybody else is, let me know, and I'll take it 7 underway, but certainly no other specific mandates. 8 CHAIRMAN BABCOCK: Okay. Sarah Duncan is Chair 9 of the 300 through 330, and she is not here. Will somebody 10 just make a note to see what she thinks about things? 11 MR. YELENOSKY: Pam's back. 12 MS. SWEENEY: Is it a "yes" or "no", Pam? 13 MS. BARON: I have no idea. 14 CHAIRMAN BABCOCK: Pam, the charge of Justice 15 Hecht to us about a year ago was to look through -- 16 MS. BARON: Well, Steve's here. 17 MR. YELENOSKY: I was out of the room, too, but 18 I heard we were wanted. 19 MS. BARON: Yeah, we reviewed it and determined 20 that our rules would not be affected. 21 CHAIRMAN BABCOCK: Great. Thank you. Mike 22 Hatchell, maybe you could check with Sarah, tell Sarah that we 23 need to -- 24 MR. HATCHELL: Sure. 25 CHAIRMAN BABCOCK: -- look at those rules. Anna Renken & Associates (512) 476-7474 11841 1 Judge Lawrence, anything on 523 through 734? 2 HONORABLE TOM LAWRENCE: Well, yes. 3 CHAIRMAN BABCOCK: Okay. 4 HONORABLE TOM LAWRENCE: There is a conflict 5 between House Bill 4 that requires a jury charge for exemplary 6 damages and Rule 554 which says that a justice of the peace 7 shall not charge the jury in any cause tried in his court 8 before a jury. To further complicate this problem is the fact 9 that part of the cases that a JP tries are filed under what we 10 refer to as justice court rules, which means the Rules of 11 Procedure in 500 and the Rules of Evidence apply, but probably 12 a half to two thirds are filed under what are referred to as 13 small claims court, which is under the auspices of Chapter 28 14 of the Government Code. 15 There is no provision in Chapter 28 of the 16 Government Code that speaks to a jury charge one way or the 17 other, so presumably House Bill 4 could require a jury charge 18 in small claims court because there's no prohibition about it, 19 but yet be prohibited in a justice court suit, which typically 20 are cases where you tend to have attorneys. 21 Exemplary damages does come up. It's not -- 22 it's not an everyday occurrence. It does come up. I believe 23 that generally speaking that most JPs are not charging the jury 24 in any type of civil suit because of Rule 554, and they tend to 25 just generally apply that to small claims court. I don't think Anna Renken & Associates (512) 476-7474 11842 1 that there is an exemplary damage charge as far as I know 2 that's being given out. I don't think the training center is 3 teaching that, but we do have a conflict. 4 CHAIRMAN BABCOCK: Okay. Could you sort of give 5 us -- give the full committee some sort of written outline of 6 that conflict, and we'll discuss it at the next meeting and 7 have your subcommittee propose what our recommendation would 8 be -- 9 HONORABLE TOM LAWRENCE: Okay. 10 CHAIRMAN BABCOCK: -- with respect to that 11 conflict? That would be great. Elaine, 735 through 822? 12 PROFESSOR CARLSON: Well, there may be a 13 conflict. It occurred to me the other day. House Bill 4 14 changed the appeal bonds. 15 CHAIRMAN BABCOCK: Right. 16 PROFESSOR CARLSON: And there's provisions in 17 both Tom's rules, Rule 571 for JP proceedings and forcible 18 entry and detainer, so we need to take a look at that. I think 19 the statute reads "in all civil cases." It does not carve out 20 any proceedings, JP or otherwise. 21 CHAIRMAN BABCOCK: Okay. Could you, as with 22 Judge Lawrence, could you write a little outline of the problem 23 for our next meeting and have your subcommittee propose a 24 resolution? 25 PROFESSOR CARLSON: Yes, I can. Anna Renken & Associates (512) 476-7474 11843 1 CHAIRMAN BABCOCK: Great. Thanks. Bill 2 Dorsaneo still here? Any appellate rules? I know we've gone 3 over a lot of appellate material on that, but anything left? 4 PROFESSOR DORSANEO: I don't think so, but let 5 me run through this one more time. I noticed some of the -- 6 there's a little remedial work that needs to be done with 7 respect to the comment to Rule 29, the original one. We ought 8 to spell some of the words correctly that are not spelled 9 correctly. 10 CHAIRMAN BABCOCK: Yeah. 11 PROFESSOR DORSANEO: But as far as House Bill 4, 12 let me just take one other look. 13 CHAIRMAN BABCOCK: Okay. With respect to the 14 people who are looking, Bobby and Paula and Bill, if you spot 15 something -- Paula is out of the room, somebody tell her. If 16 you spot something then do the same thing that Judge Lawrence 17 and Elaine are going to do, which is to write up a little 18 summary of what it is and propose a solution for recommendation 19 to the Court. 20 Buddy, we're going over the issue of whether 21 House Bill 4 requires changes in the rules that the various 22 subcommittee chairs are responsible for, and some of the 23 subcommittee chairs have looked at it and said their rules are 24 okay, some have said, no, there's a conflict and we need to 25 talk about it, and a couple have said we need to look further. Anna Renken & Associates (512) 476-7474 11844 1 On evidence rules have you looked at it and everything's okay, 2 or do you know? 3 MR. LOW: Well, as far as I know everything's 4 okay, and I apologize. I was meeting with them on what things 5 they need to kind of work on, you know 6 MR. MARTIN: You were having an ex parte 7 communication with them? 8 MR. LOW: Well, it was more than one person, so 9 if that's ex parte. 10 CHAIRMAN BABCOCK: Richard was not there, would 11 that be safe to say? 12 MR. ORSINGER: In the back part of the table 13 that was in Justice Hecht's letter he lists a number of other 14 House bills and Senate bills that might present the possibility 15 that my subcommittee should suggest added to the existing 16 rules. I don't see that there are any that conflict, but we 17 have special statutes that in a sense create a peculiar 18 circumstance that it might be helpful to clarify the rule. So 19 we have not analyzed that, but we will analyze that. 20 MR. LOW: I have not looked at that, but I will 21 CHAIRMAN BABCOCK: Okay. Yeah, if you spot 22 anything, Buddy, do a little memo to us -- 23 MR. LOW: Yeah, I sure will 24 CHAIRMAN BABCOCK: -- and then have your 25 subcommittee propose a solution. Great. That will take care Anna Renken & Associates (512) 476-7474 11845 1 of that. Another sort of administrative item is -- and you-all 2 can just be thinking about this, but we have this proposal from 3 the Judicial Committee on Information Technology, which I'm 4 very impressed with because they have their own seal, and they 5 have proposed some rules, and Justice Hecht suggests that we 6 have a sort of a select committee, a subcommittee of this 7 group, to deal with this because the rules traipse over, you 8 know, several of our existing subcommittees. 9 I've already had one person ask -- Andy Harwell 10 has asked to be on this committee, and so if anybody else is 11 interested in this, it's a project that has really got some 12 legs to it, and this group led by Peter Vogel is working very 13 hard and they've made tremendous progress, and I think they 14 feel that they're at the point where some statewide rules 15 are -- it's time for it. So this is going to be a big issue 16 that's going to come forward, so anybody that wants to be on 17 that subcommittee let me know. 18 MR. JEFFERSON: I'm in. 19 CHAIRMAN BABCOCK: Lamont. Okay. And you can 20 just let me know over lunch, but I gotcha. Thank you. 21 Okay. So let's be recessed for lunch. We'll be 22 back about 1:20 let's say. 23 (Recess from 12:20 p.m. to 1:28 p.m.) 24 CHAIRMAN BABCOCK: We briefly had Justice Hecht 25 trapped, but now he's escaped again, but he is just in from Anna Renken & Associates (512) 476-7474 11846 1 Alaska and I'm sure will be back in a second. I don't know if 2 you-all got Lisa's letter that we received regarding Rule 103 a 3 couple of days ago, but she has been in contact with some of 4 the district judges, specifically Judge Lindsey from the 280th. 5 MS. SWEENEY: I'm sorry, this has been bothering 6 me all day. Who is Lisa? 7 CHAIRMAN BABCOCK: If you had been here on time 8 you would know that Lisa Hobbs is the new rules attorney 9 MS. SWEENEY: Hi, Lisa. 10 MS. HOBBS: Hi. 11 CHAIRMAN BABCOCK: Lisa, this is Paula. 12 MR. LOPEZ: She already knows who you are. 13 HONORABLE TOM GRAY: The lady with the very red 14 face at the end of the room is Paula. 15 MS. McNAMARA: I was here on time, and my bad 16 memory caused me not to remember her name. 17 MS. SWEENEY: Yeah, I asked Anne. She set me 18 up. She said, "I don't know, ask." 19 CHAIRMAN BABCOCK: And this distinguished 20 gentleman is Justice Hecht. You may remember him. 21 MS. SWEENEY: Oh, yeah, I've read about him. 22 MR. MEADOWS: He knows her, too. 23 CHAIRMAN BABCOCK: Lisa, it's not usually this 24 bad. Okay. Tracy is saying, "Yes, it is." 25 She has a two-page letter that was on the Anna Renken & Associates (512) 476-7474 11847 1 website regarding Rule 103 process service, and we have some 2 guests here who are available for discussion if we need it, and 3 so, Lisa, why don't you tell us what you've done? 4 MS. HOBBS: Okay. Well, I tried to get in touch 5 with Richard to talk about this, too, but we weren't able to 6 touch base, but Judge Hecht and I went to Houston. I guess 7 we've looked at the process service issue before, and there 8 seems to be an agreement that a statewide standard would be 9 beneficial for the state. Currently, for a little bit of 10 background, and I don't know how much background I need to 11 give, but each county can have their own rule; and so if you 12 have a private process service business, you have to comply 13 with, you know, 264 counties rules. 14 PROFESSOR DORSANEO: 254. 15 MS. HOBBS: 254? 16 PROFESSOR DORSANEO: Uh-huh. 17 MS. HOBBS: I've been quizzed on this a number 18 of times since I got here. And so the idea is to have a 19 statewide standard. Harris County currently has a program set 20 up by the Houston Young Lawyers Association to educate and then 21 certify process servers to serve for Harris County, and this is 22 put on by Judge Lindsey and some of the judges there in Harris 23 County, and we went down and talked to her about that program, 24 and based on those discussions as well as numerous discussions 25 with the -- many of the private process servers across the Anna Renken & Associates (512) 476-7474 11848 1 state, we have drafted three alternative rules. And they're 2 alternatives based on how easily we could react to changes that 3 we foresee coming up or don't foresee at this point coming up, 4 but could come up. 5 The first one, alternative A, would be an 6 amendment to the Rules of Civil Procedure, and that could be 7 quite difficult to amend if something that we didn't think of 8 came up. And alternative B would be a more vague Rule of Civil 9 Procedure that would allow the Court to issue an administrative 10 order to set up the specifics, and then alternative C would be 11 a rule of judicial administration. But the basic idea is if 12 you take the Harris County course you can serve for any court 13 in any county in the state; and if you take the course that's 14 given by the Texas Process Servers Association, then you can 15 serve anywhere but for Harris County; and so you have two 16 options on how you would do that. 17 And then I put down in there reviewing the rules 18 we would probably want to consider if there needs to be sort of 19 a third tier that allows a judge to -- discretion to allow a 20 noncertified private process server to serve for his court or 21 her court. And like I say, it's one thing to say if Jane is 22 served -- if Jane is certified, you must let her serve, and 23 it's another thing to say if Jane is certified, you can't let 24 her serve. And so do we want to talk about whether there 25 should be some third tier to this rule. Anna Renken & Associates (512) 476-7474 11849 1 And then, finally, we want to talk about -- and 2 I think that the process servers in general agree that there 3 could be some sort of background check and fingerprints for 4 private process servers, and indeed Harris County does require 5 that, and so that's sort of another item for the committee to 6 consider. And that's what I have. 7 CHAIRMAN BABCOCK: Okay. Any comments from any 8 of our process servers here? 9 MR. THORNTON: We would like to comment and 10 appreciate it. 11 CHAIRMAN BABCOCK: Sure. 12 MR. THORNTON: My name is Gary Thornton. I'm 13 the president of the Texas Process Servers Association; and 14 also I own Professional Civil Process of Tarrant County, 15 Incorporated; and with the Texas Process Servers Association, 16 our consistent main goal has been to raise the level of 17 professionalism in the private process servers industry through 18 training and education, so it gives us a great opportunity to 19 come here and thank the rules committee, Justice Hecht, and you 20 folks for recognizing this and help us to further that 21 particular goal of ours, so we thank you for that. 22 We have read and appreciate what you have that 23 you are proposing, and we do agree with you that the process 24 should be directed by the Court and would totally agree with 25 that. We also, what Lisa just said, we would agree that Anna Renken & Associates (512) 476-7474 11850 1 regardless of whether it's Harris County or the Texas Process 2 Servers Association, we would like for the requirement for a 3 criminal background check to be consistent with both 4 situations, and we would include that in ours. 5 Now, the only suggestions that we might offer in 6 what you're proposing here is that we have some requirement 7 that certification and training courses be held at least twice 8 per year. We don't have an exact count, but we know we have 9 something over a thousand process servers in the state of 10 Texas. This, if we make a proposal of this sort and it does go 11 into the Texas Rules of Civil Procedure, then we are going to 12 have a fairly significant logistical situation in getting our 13 people trained and through the classes, so we're going to have 14 to consider that for the future. 15 Now, we would like to offer some considerations 16 that recognize Harris County for their contribution to 17 education in the private process industry because they've done 18 a tremendous job in Harris County. We would suggest that 19 perhaps we consider that certification and training through 20 Harris County as well as the Texas Process Servers Association. 21 In the proposal, as we've read it, if I understand correctly, 22 if an individual goes through the Harris County process, that 23 individual would be able to serve papers from Harris County and 24 in the state of Texas, and that's certainly our objective that 25 we're trying to accomplish. Anna Renken & Associates (512) 476-7474 11851 1 The other side of it is if, as proposed, this 2 goes through the Texas Process Servers Association then those 3 people going through that training and education would serve 4 papers from any court with the exception of Harris County. So 5 what we've written to you and that we would propose as a 6 consideration is that perhaps process servers residing in 7 Harris County and the seven counties adjacent to Harris County 8 take the Harris County course to serve papers issued from 9 Harris County. 10 Our logical reason for that is probably 90 11 percent of the papers out of Harris County are probably served 12 within those counties, and additionally we would ask that 13 process servers in the other 246 counties may take either the 14 Harris County course or the Texas Process Servers Association 15 course and then be able to serve papers from any county, and 16 our concern is this certainly resolves a great deal of our 17 problem in having to apply with all of the different courts for 18 either standing orders or individual 103, but it puts us 19 somewhat back in the same situation because we'll still have 20 indviduals in the state that can serve some papers but still 21 have to go through additional training in Harris County to 22 serve those papers. 23 What we would offer there, if that were 24 accepted, is that the Texas Process Servers Association can 25 certainly incorporate in our curriculum anything that Harris Anna Renken & Associates (512) 476-7474 11852 1 County would require that they felt is necessary to pass on to 2 the process servers who go through that training. I've been 3 through both training, and as a matter of fact, am a trainer 4 for the Texas Process Servers Association classes, and probably 5 90 percent of what we discuss is no different from what Harris 6 County discusses in their classes. 7 The main point of difference in Harris County is 8 a particular affidavit that the county requires and their 9 courts require that they require to be attached to each one of 10 the returns that we file back with the court, and I think that 11 we can incorporate that and recognize Harris County in our 12 training and hopefully avoid having the conflict between the 13 two counties and who can serve from those counties. So that's 14 all we would have to offer, and we appreciate you allowing us 15 the time to speak to that. 16 CHAIRMAN BABCOCK: Thank you for coming. We 17 did, of course, do some work on the topic several meetings ago, 18 I think. 19 HONORABLE NATHAN HECHT: Yes. 20 CHAIRMAN BABCOCK: And Orsinger's subcommittee, 21 as I recall, was -- he was here, but we abused him so badly 22 that I think perhaps he -- 23 MR. LOW: He's regenerating 24 CHAIRMAN BABCOCK: Regenerating. 25 HONORABLE NATHAN HECHT: Let me add a word. The Anna Renken & Associates (512) 476-7474 11853 1 committee recommended that we change the rule to let any notary 2 be a private process server. The reason for the change was to, 3 one, come up with some statewide threshold that you could meet 4 and then serve process so the private process wouldn't have to 5 be meeting all sorts of different requirements in various 6 different counties, and we couldn't think of another one, as I 7 recall, other than notary, which was already in place that we 8 could take advantage of that without trying to be too specific 9 otherwise. 10 We've gotten a lot of letters, the Court has, 11 from lawyers saying either do that or something else like that, 12 and when I visited with Judge Lindsey -- and Tracy or others 13 can speak to this, too -- she claims that the Harris County 14 system is working awfully well, and we hate to tickle with 15 anything that's working, but we're trying to figure out some 16 way to work that in with the other counties in the state. 17 The only other requirement that we know about 18 that the counties impose is an insurance requirement that is 19 imposed by four or five counties, Bexar being one of them, 20 because Richard talked about it when he was here before, the 21 good of which was kind of difficult for me to see, because I 22 don't know -- the process servers tell me that the beneficiary 23 is the county, so I don't see how the county is ever going to 24 be out anything by what a private process server does, because, 25 as I understand it, they have immunity, but there is that issue Anna Renken & Associates (512) 476-7474 11854 1 hanging out there about what to do about that, and these 2 proposals would just cast that aside. 3 So the idea -- the reason we've come back to the 4 committee is because it's not clear that the notary rule is 5 enough in the direction we were trying to go, and this is a 6 proposal that is a little unique in that it takes Harris County 7 and then everybody else, but maybe that's a good solution. 8 CHAIRMAN BABCOCK: Okay. Justice Hecht, do you 9 want Richard's subcommittee to study this further, or do you 10 want to just talk about it now, or do you want to have the 11 subcommittee look at it and then talk about it at our next 12 subcommittee meeting? 13 HONORABLE NATHAN HECHT: I would rather talk 14 about it some now, because we'd like to at least have a 15 proposal in the fall. 16 CHAIRMAN BABCOCK: Okay. Buddy. 17 MR. LOW: Is there any rule or any statute that 18 penalizes somebody that's unauthorized, you know, to serve? I 19 get served by a guy, I might not say, "Well, show me your 20 credentials," and it doesn't matter whether he's certified or 21 not in Federal court. Once I get that I've got 30 days to 22 remove. I don't care if he's illegal, and so what protects the 23 person that's being served? Is there any penalty for being -- 24 for serving when you're not authorized, or is there any rule 25 that says, because I mean, that's another issue to me. I don't Anna Renken & Associates (512) 476-7474 11855 1 know whether the person is authorized or not, and what if I'm 2 served by somebody that's unauthorized, and then I answered. I 3 have -- I mean, what are the consequences? 4 CHAIRMAN BABCOCK: Well, you might be able to 5 bust the service, but I don't know if -- 6 MR. LOW: Well, then it's not removal because 7 Federal court says once you get a copy of that lawsuit, man, 8 you've got 30 days. I don't care if it drops out of an 9 airplane 10 CHAIRMAN BABCOCK: Well, it's not quite that 11 bad. 12 PROFESSOR DORSANEO: They don't say that 13 anymore, Buddy. 14 MR. LOW: When did they change it? 15 CHAIRMAN BABCOCK: They changed it by decision a 16 couple of years ago. 17 MR. LOW: The rule was changed by decision. 18 What does it say now, that you have to be -- 19 CHAIRMAN BABCOCK: They construed the statute -- 20 it used to be everybody worried that if you had notice, and the 21 court construed that and said, if I'm remembering right, Bill, 22 it said that mere notice that you read it in a newspaper or 23 that, you know, one of your outside law firms sent it to you, 24 that wasn't enough. It had to be properly served, but you 25 would run the risk of not removing because you wouldn't know if Anna Renken & Associates (512) 476-7474 11856 1 it was proper or not. 2 MR. LOW: Yeah. 3 CHAIRMAN BABCOCK: So same problem. Maybe not 4 as bad as dropping out of an airplane, but all right. What 5 other comments about the proposed rule? Any thoughts? Justice 6 Duncan. 7 HONORABLE SARAH DUNCAN: I just have a question. 8 If the Texas Process Servers Association agrees to adopt the 9 affidavit that Harris County requires to be attached to the 10 return, could we just have the Texas Process Servers 11 Association as the certifying agency? 12 CHAIRMAN BABCOCK: I'm sorry. I couldn't hear 13 you, Sarah. 14 HONORABLE SARAH DUNCAN: If the Texas Process 15 Servers Association agreed to adopt the affidavit that Harris 16 County requires to be attached to the return, could we just 17 have certification by the Texas Process Servers Association 18 only? To exempt Harris County from what looks like a statewide 19 rule just runs against my nature, so I'm asking if there's a 20 basis for the two groups to agree on what the certification 21 process ought to be. 22 MR. THORNTON: We believe there is. 23 CHAIRMAN BABCOCK: Justice Gray. 24 HONORABLE TOM GRAY: What is Texas Process 25 Servers Association? Is it a for profit organization? Is it a Anna Renken & Associates (512) 476-7474 11857 1 state agency? What is it? 2 MR. THORNTON: No, sir. We are a nonprofit 3 organization, and again, the goals of our organization are to 4 improve the professionalism of this particular industry through 5 education and training and to provide a network that we can 6 share the rules of proper service and help educate our members 7 across the state, so we are nonprofit 8 HONORABLE TOM GRAY: But it's a private 9 organization, it's not state-affiliated. 10 MR. THORNTON: That is correct. It's a private 11 organization. In fact, under our charter an individual does 12 have to be a member of the association to go through the 13 training 14 HONORABLE TOM GRAY: Okay. 15 HONORABLE TRACY CHRISTOPHER: How much does that 16 cost? 17 HONORABLE SARAH DUNCAN: Is that in addition to 18 Harris County? 19 MR. THORNTON: No, that has nothing to do with 20 Harris County. It has to do with the legality of licenses to 21 provide this training and particularly with the association 22 that we're affiliated with private servers. 23 HONORABLE SARAH DUNCAN: But my question is 24 would Harris County object to Harris County private process 25 servers having to be members of the Texas Process Servers Anna Renken & Associates (512) 476-7474 11858 1 Association to get certified? 2 MR. THORNTON: Well, I can't answer for Harris 3 County. I would hope not, because many of our members 4 certainly are from Harris County. 5 CHAIRMAN BABCOCK: Judge Christopher. 6 HONORABLE TRACY CHRISTOPHER: Well, just by way 7 of background, if you want to hear a little background on it, 8 current Rule 103 as it stands requires a written order of the 9 court for a process server; and so what we started in Harris 10 County was a standing order where the process servers could get 11 on the standing order; and if they were on the standing order 12 then they were certified to serve process; and this helped the 13 lawyers and the process servers because they didn't have to 14 file a motion in every court to get an order from every judge 15 in every case they wanted to serve something in. 16 And then when we started to have problems with 17 shaky services we started requiring our process servers to go 18 through an education process before they could get on our 19 standing order, so that's how we started it, and I don't know 20 whether other people or other counties have had similar 21 problems with, you know, just not good service procedures, so 22 we started the certification process. I actually agree that I 23 think it would be a mistake to have a rule that excepts Harris 24 County, despite the fact that I like our service process and -- 25 CHAIRMAN BABCOCK: But you want the state to Anna Renken & Associates (512) 476-7474 11859 1 come to you? 2 HONORABLE TRACY CHRISTOPHER: No. No. I would 3 be perfectly happy to have I guess alternative B, which would 4 be directed by the Supreme Court, and -- in terms of rules, but 5 I think there needs to be some oversight, and whether it's the 6 judges in a county or whether it's the Supreme Court or the 7 Supreme Court wants that, we just want to have the ability to 8 make sure that the process servers do have a certain level of 9 knowledge about what they're supposed to do, which is why when 10 this committee, whenever that was, before I got on it a couple 11 of years ago, suggested that we change it to any notary, all 12 the judges in Harris County were very unhappy about it because 13 it would essentially end our oversight over the quality of 14 service. 15 And you-all here probably don't realize, but we 16 sign an incredible number of defaults on a weekly basis; and 17 when we sign so many defaults, you know, we're taking away 18 people's homes, you know, we're doing a lot of Draconian 19 things; and we want to know that the service of process has 20 been an adequate and correct service of process. All of you 21 here probably don't -- you know, maybe one or two times you've 22 had to run down and try to set aside a default on behalf of a 23 client; but, you know, on a routine basis we're doing that; and 24 we want to make sure that -- we have wanted to make sure that 25 there was some oversight over the process servers, so that's Anna Renken & Associates (512) 476-7474 11860 1 the background and why we started what we did. 2 CHAIRMAN BABCOCK: Another apologist for Harris 3 County, Stephen Tipps. 4 MR. TIPPS: No, I'm just inquiring about what 5 Harris County does. What are the differences between what 6 Harris County requires by way of certification and what the 7 Texas Process Servers Association requires? 8 HONORABLE TRACY CHRISTOPHER: I don't know that. 9 HONORABLE NATHAN HECHT: Well, Harris County has 10 their own course. They offer a course once a year that you 11 have to attend and pass basically, although Judge Lindsey says 12 it's not very hard to pass as long as you're there. You have 13 to plunk down a hundred dollars for it and you have to submit 14 to a criminal background check, which is not on the table. 15 Nobody objects to that. 16 MR. TIPPS: What does the Texas Process Servers 17 Association -- 18 HONORABLE NATHAN HECHT: They have their own 19 course. 20 MR. TIPPS: Are they similar? 21 MR. THORNTON: It doesn't differ significantly. 22 As I said, there's a specific Harris County requirement in 23 terms of a particular affidavit that need to be discussed in 24 Harris County. Past that, we don't see a great deal of 25 difference in the two courses of instruction. Anna Renken & Associates (512) 476-7474 11861 1 CHAIRMAN BABCOCK: Carl. 2 MR. HAMILTON: I have a question about the -- is 3 there something that these process servers learn that ought to 4 be learned by sheriffs or constables, too, or are they just 5 exempt because of their title? 6 CHAIRMAN BABCOCK: I think we might pass on 7 commenting on that. 8 MR. DENNER: That's why we serve a lot of 9 papers. 10 CHAIRMAN BABCOCK: Carlos. 11 MR. LOPEZ: In Dallas we had pretty similar 12 issues. We were having some trouble, let's put it that way, 13 and so we had to -- Judge Evans kindly agreed to be sort of the 14 centralized guy to have all the affidavits come to him instead 15 of having 13 different judges. You know, you may be authorized 16 in six courts and not seven, so he would just -- his term 17 became forever. I don't know how that happened, but so it's 18 kind of centralized a little. 19 CHAIRMAN BABCOCK: Yeah. But do they have to 20 take an exam? 21 MR. LOPEZ: No, but we do have an affidavit. 22 MR. THORNTON: Yes, sir. Dallas does require 23 it. 24 MR. LOPEZ: Right. But it wasn't as onerous as 25 this in terms of training, but I can't speak for them, but I Anna Renken & Associates (512) 476-7474 11862 1 know them well enough to know they would probably be in favor 2 of that. 3 CHAIRMAN BABCOCK: Judge Lawrence and then 4 Buddy. 5 HONORABLE TOM LAWRENCE: Two questions. Did 6 Harris County do this through a local rule or something less 7 than that? 8 HONORABLE TRACY CHRISTOPHER: Well, 103 says 9 that you're authorized to serve if you have a written order, 10 and so through a -- I guess it was a local rule between all of 11 us we all said -- you know, we signed that said, "If you're on 12 the standing order then you're authorized to serve process in 13 our court." 14 HONORABLE TOM LAWRENCE: But it wasn't a local 15 rule that went through the Supreme Court for approval? Well, 16 if A or C were adopted, would there be anything that would 17 preclude another county from passing something similar to 18 Harris County and establishing their own requirements? 19 HONORABLE NATHAN HECHT: Well, we're only 20 contemplating having a two-part system because that's the 21 status quo. That's what we have encountered, but we certainly 22 wouldn't want there to be a 254-part system. The object is to 23 get closer back to one, not closer to 5 or 10. 24 HONORABLE TOM LAWRENCE: But would A or C 25 actually prohibit that? Anna Renken & Associates (512) 476-7474 11863 1 HONORABLE NATHAN HECHT: Well, I don't know that 2 they would, but, I mean, the idea is to make this the system; 3 and the only questions, as Lisa pointed out earlier, is we 4 would say as -- the rule would say something like to the 5 effect, as Harris County does, if you're on this list you can 6 serve, irrespective of what the judge thinks, unless maybe 7 there's a good cause or something like that; and then the other 8 question would be if you're not on the list, could a judge in 9 Maverick County or someplace say, "I don't care. I want this 10 guy to serve it even though he's not on the list." 11 CHAIRMAN BABCOCK: Buddy. 12 MR. LOW: Chip, what would be wrong with having 13 a state rule that's like our Rules of Procedure and then treat 14 it like a local rule and say unless a county got an order of 15 the Supreme Court allowing it so the Court could supervise it, 16 they might not allow any. If they felt it was consistent with 17 the overall state and they would want a different rule for 18 process and the Supreme Court could review it and they couldn't 19 use it unless the Court authorized it 20 CHAIRMAN BABCOCK: That's sort of this 21 alternative B. That's the process of that alternative B on 22 there. 23 MR. LOW: Okay. I haven't read that, so 24 somebody was thinking. 25 CHAIRMAN BABCOCK: Judge Bland. Anna Renken & Associates (512) 476-7474 11864 1 HONORABLE JANE BLAND: I was going to say that 2 the Harris County education program came up because not just of 3 shaky service, but also I think the difference between the 4 sheriff service and the private process servers is that there 5 was a computer generation of an affidavit for attempting it; 6 and it would change the place where the verification was in the 7 affidavit; and in some instances it appeared as though the only 8 thing that the process server was swearing to was that they 9 indeed were the process server, not that they had served this 10 person at this time, at this place; and so we were getting a 11 lot of different form affidavits. 12 And so I think the education course was 13 developed to try to emphasize the importance of exactly what 14 needs to be verified, and I think that was a reason there was a 15 focus on the private process servers, and I don't think that -- 16 and I can't speak on behalf of the Harris County judges, but I 17 think it's, you know -- I don't think that they would have a 18 problem with other courses that would meet these needs; but I 19 don't think that we should have the only oversight be the 20 private process servers organization in terms of meeting what 21 the judges' requirements for service are; and that's because 22 the private process servers association is comprised of private 23 process servers; and that doesn't really meet, I think, the 24 concern of some of the Harris County judges, which is, you 25 know, the need for judicial oversight of private process Anna Renken & Associates (512) 476-7474 11865 1 service, given that we rely on these affidavits to sign 2 Draconian default judgments, or sometimes Draconian default 3 judgments. 4 So, you know, if the Texas Supreme Court or 5 whatever organization wanted to endorse the course of a private 6 process servers association as adequately meeting the 7 educational needs of a court then I think that would probably 8 be fine along with the course offered in Harris County or 9 offered in any other county in the state. 10 CHAIRMAN BABCOCK: Justice Gray. 11 HONORABLE TOM GRAY: I share Justice Duncan's I 12 guess you would say knee-jerk reaction to anything that 13 identifies a specific county as an exception or their 14 curriculum. I have grave concerns about also in the prospect 15 of a rule, notwithstanding that they may be very qualified to 16 do it now, it is a private entity. It is not part of the 17 state, not regulated as such by the state. It does not appear 18 to me to have some of the openness that we would like to see. 19 There is a fee to join the association. 20 I think there's some issues with freedom of -- 21 if these are the only people in the state that are going to be 22 allowed to serve process other than sheriffs and constables, 23 given that we have a greater range of people that can do that 24 now, are there implications on freedom of association clause. 25 I don't know who pays the fees in these things, but my Anna Renken & Associates (512) 476-7474 11866 1 understanding is that you pay the fee to the clerk and the 2 clerk pays the process server. Is that -- or just the party 3 pays the process server directly? 4 MR. THORNTON: The party. 5 HONORABLE TOM GRAY: So maybe there's not a 6 problem with the use of public emoluments for private 7 individuals, but there are a lot of concerns, and I think if 8 you don't have the -- more on the nature of alternative B where 9 there are exceptions and each county can in effect opt out of 10 this rule, and it seems to me that what -- there are very 11 specific problems in some of the larger counties, Dallas 12 County, Harris County, that generates the need for some type of 13 overall administration of this process; whereas, Navarro 14 County, where I was originally and even McClennan County now, 15 there are people recognized that do this and it's their 16 livelihood. They're not part of one of these associations. 17 They're good. Why knock them out of their livelihood doing 18 this in these smaller counties where it's not a problem? 19 CHAIRMAN BABCOCK: Yeah, Harvey. 20 HONORABLE HARVEY BROWN: I think a course is a 21 good idea regardless of where you are in the state. Just like 22 lawyers take courses, doctors take courses, et cetera. I don't 23 know that we want to have the Supreme Court have to certify the 24 course. I think the Court probably has got enough on their 25 plate already, but maybe an alternative would be to have the Anna Renken & Associates (512) 476-7474 11867 1 State Bar look at courses like what's offered in Harris County 2 and what's offered by the association right now and kind of 3 bless those courses, but somebody -- I think Jane's point is 4 that somebody needs to make sure those are adequate courses and 5 they do what the judges think needs to be done. 6 CHAIRMAN BABCOCK: Okay. Lamont. 7 MR. JEFFERSON: I would echo the comments of 8 Justice Gray and Justice Duncan, but I'd also say that -- and I 9 think Justice Gray already touched on this. Anybody who does a 10 lot of litigation has a relationship with a process server that 11 they've been using for a long time and that they're happy with 12 and have not produced problems. If they're involved in a lot 13 of litigation then they have an interest in seeing that process 14 is served correctly and that there aren't issues that come up. 15 And I just don't have a handle on -- I mean, I 16 suspect that the problems that we're talking about are not from 17 process servers who make their livelihood as process servers. 18 Now, that may be new entrants into the area or just ad hoc 19 individuals who don't really know what they're doing and they 20 haven't done it before, but I share the concern of, you know, 21 all of the folks who are not now a part of the problem having 22 to conform to whatever, you know, we're trying to establish. 23 Or at least we should make that as seamless as we can so that 24 everyone would just agree that, yeah, this is something that's 25 good for us all, is for kind of the integrity of the industry. Anna Renken & Associates (512) 476-7474 11868 1 CHAIRMAN BABCOCK: Robert. 2 MR. VALADEZ: I just had a question. Maybe 3 you-all can answer it. Does any of this fall within the scope 4 of the Texas commission that regulates the private 5 investigators? 6 MR. THORNTON: No, it doesn't. As a matter of 7 fact, we've been working now for over 10 years with the 8 Legislature to look at a process that would license and 9 regulate our industry. In fact, we see this as a possible very 10 positive first step to further those efforts. So the answer to 11 your question is "no." 12 CHAIRMAN BABCOCK: Justice Duncan. 13 HONORABLE SARAH DUNCAN: I think I must be 14 confused now on alternative B in light of what Buddy said. I 15 thought the whole point of this was that if you are certified 16 by Harris County or the Texas Process Servers Association you 17 can serve process anywhere in the state. If you give the 18 Supreme Court the power to opt -- to permit a county to opt out 19 of this then you've defeated the whole purpose of what we're 20 trying to do, so I don't -- I don't understand that to be what 21 alternative B is saying, and if that is what alternative B is 22 saying, I need to know that to intelligently exercise my vote. 23 HONORABLE NATHAN HECHT: Well, it could go 24 either way. It could be a component of B or not. It could be 25 in the order or not, because there are two sides. One is if Anna Renken & Associates (512) 476-7474 11869 1 your name is on the list a judge can't turn you down unless he 2 or she has got a good reason, so you come in and say, "I want 3 to serve this process in this case" in Navarro County and the 4 judge out there who doesn't know you, but your name is on the 5 list, he's got to let you do it. The other side, the other 6 issue is if he wants -- if the judge wants to let someone serve 7 process who is not on the list, can the judge do that? And, I 8 mean, those are two separate issues. 9 HONORABLE SARAH DUNCAN: And alternative B 10 doesn't decide between those two? 11 MR. THORNTON: No. 12 HONORABLE NATHAN HECHT: There's still an issue 13 -- I mean, B is just a way to treat -- to treat the 14 rule-making. Should we just have a clause in the rule that 15 says, "As the Supreme Court directed by order," or whatever, 16 and then you have an order which theoretically you could change 17 more easily than you could change a rule, or should you put the 18 whole thing in the rule, which makes it harder to change. 19 CHAIRMAN BABCOCK: David Jackson and then 20 Carlos. 21 MR. JACKSON: I think absent a process servers 22 certification board you have to have alternatives because you 23 could create a situation with a private association where they 24 could charge whatever they wanted to and basically control the 25 industry by saying, "Pay these fees to be a member of our Anna Renken & Associates (512) 476-7474 11870 1 association or you can't be a process server"; and we have 2 process servers that we use everyday in our court reporting 3 firm; and I would hate to have to see them be required to join 4 a private association to keep doing their job. 5 CHAIRMAN BABCOCK: Carlos. 6 MR. LOPEZ: I've got a question about some of 7 the specifics of the implementation. Is the good cause 8 requirement that might lead a judge to deny someone who's 9 already been through whatever certification we end up, if any, 10 putting there, is that just to make sure that he's not related 11 to the parties or something that's case specific or would there 12 be something else I'm missing, too? Because if they've been 13 certified and if there's a course that everybody agrees is 14 either administered by the Supreme Court or by whoever and 15 they've done a criminal check and they've passed everything 16 else, why do we even need the district -- you know, why not 17 just let them automatically be approved sort of ahead of time? 18 HONORABLE NATHAN HECHT: Well, the concern would 19 be that he's on the list, but the judge gets up for breakfast 20 and reads the paper and he's killed five people yesterday and 21 then goes to work and as a private process server comes in and 22 says, "Well, I'm on the list. Let me serve." And the judge 23 says, "I don't want to do that. I think I've got good reason 24 to take you off the list at this point." 25 MR. LOPEZ: Well, I guess -- okay. Anna Renken & Associates (512) 476-7474 11871 1 CHAIRMAN BABCOCK: Judge Christopher. 2 HONORABLE TRACY CHRISTOPHER: Could I ask a 3 question since I wasn't here the first time we discussed this? 4 What was the impetus to change it to a notary to begin with, 5 that it was too hard to get a judge's order, or why were we 6 tinkering with the way it is now? 7 HONORABLE NATHAN HECHT: Because the Harris 8 County judges require you to be on their list to serve process 9 out of their courts; and if other counties do that or don't do 10 that, it runs -- you run the risk that each county will set up 11 its own requirements and people will be required to meet a 12 whole bunch of different requirements, even though there's no 13 reason for that. 14 HONORABLE TRACY CHRISTOPHER: But the rule as it 15 is currently written requires a written order of a judge to 16 allow you to serve process, so -- 17 MR. LOPEZ: That's kind of what we're getting 18 at. 19 HONORABLE TRACY CHRISTOPHER: So, you know, a 20 judge in a small town knows people and knows that they're good, 21 you know, people, you know, I assume he's got some sort of 22 standing order, you know, assigns them automatically and lets 23 that person, you know, go out and serve. In a bigger county 24 where you don't know the people, you know, we set up a process 25 so that we have some control over them, because otherwise, you Anna Renken & Associates (512) 476-7474 11872 1 know, you have no idea when one of these 103 motions come in, 2 you know, who this person is that wants to request service. 3 I'd leave it the way it is, but and -- but 4 unless there's some, you know, clamor out there that there 5 aren't enough private process servers, you know, being 6 permitted. I mean, we have a huge list. I mean, I assume the 7 other people, other counties, you know, manage this. I mean, 8 did someone come to the committee and say, "There aren't enough 9 private process servers. We can't -- you know, we can't get 10 into it"? 11 HONORABLE NATHAN HECHT: Yes. I mean, they 12 raised the issue, but the Court has got about 150 letters. We 13 could go back over and bring them over here, but from lawyers 14 that would prefer it changed to the notary public, which is 15 what the committee recommended, so it's a big stack of letters. 16 MR. THORNTON: May I add to help answer her 17 question, if it's appropriate. Let me give you an example of 18 Tarrant County and the barriers that we have now across the 19 state, but Tarrant County is a perfect example. In Tarrant 20 County I apply with the Tarrant County civil district courts by 21 application and affidavit. I go over to the Tarrant County 22 family district court, and I have to apply totally separately, 23 and I have to have six different judges' individual signatures, 24 and I have to apply for those in person. 25 I go down to county court and do an affidavit Anna Renken & Associates (512) 476-7474 11873 1 for them, and I have to have E&O insurance in a minimum amount. 2 I go to the justice court there in Tarrant County, and I have 3 to interview with that particular judge, and it's all different 4 for each of the justice courts. We have to get a 103 for each 5 of those and provide insurance through that particular court. 6 None of those require education. You go to Dallas there's an 7 education requirement. 8 So that's what we're up against even with the 9 standing orders, and Tarrant County is the classic example. 10 There are five or six different applications and ways to get 11 those standing orders. It is a nightmare at this point. 12 CHAIRMAN BABCOCK: Yeah, Judge Bland. 13 HONORABLE JANE BLAND: To address Judge Gray's 14 concern, could we add to alternative B, (1), (2), and (3), by 15 order of the court, so that if somebody did not get on the 16 central list or the list that's being contemplated, they then 17 could go seek out an individual order for that so they wouldn't 18 have to necessarily join the process servers association or 19 take a Supreme Court approved course if they could get a trial 20 judge to go along with it? 21 Would that -- that way you still have the 22 ability to become part of the Supreme Court's standing order 23 and not have to go to individual courts to seek permission, but 24 for those that choose to go that route they can seek permission 25 from the local judiciary? Anna Renken & Associates (512) 476-7474 11874 1 HONORABLE TOM GRAY: You may need that for 2 clarity, but the phrase "other person authorized by law in 3 subsection (a)(1) may be all that is needed as long as that -- 4 if I understand that phrase, it would be -- the other persons 5 would be those specifically authorized by the trial court 6 judge, but I mean, alternative B is obviously the one of the 7 three that is somewhat palatable to me because it's the least 8 variance from the existing rule and it allows for, I guess, 9 free access of people that aren't -- that don't go through the 10 association training or the Harris County training. 11 HONORABLE JANE BLAND: And really, that would 12 allow -- we wouldn't necessarily have to put it in a rule 13 because the Supreme Court could issue in their order -- you 14 know, could direct that the following people are entitled to 15 serve process, those that comply with this course, that course, 16 or those that received an order from a trial court. So you 17 wouldn't have to put it in the rule, now that I think about it. 18 HONORABLE TOM GRAY: It would seem to me that 19 under alternative B if an organization wanted to make 20 application for the ability to do it statewide, there should be 21 a process that they could apply to the Supreme Court, and the 22 Supreme Court under (a)(1), other person authorized by law, 23 would issue an order, the equivalent to a current standing 24 order in a county that that person is authorized to do it 25 statewide, or a person that's affiliated with that Anna Renken & Associates (512) 476-7474 11875 1 organization, but it doesn't require the court reporter that -- 2 like Lamont was saying, that I've used for 10 years in Navarro 3 County and very happy with to go become a member of that 4 organization, because she already has the standing order from 5 the district judge in Navarro County and can still do it and no 6 problems there, but doesn't have to go to the Supreme Court to 7 get it. 8 All it really does, as I see it, is allows the 9 Supreme Court the ability to issue a statewide order that 10 authorizes them to do it anywhere in the state, 254 counties. 11 MR. LOW: Richard, did you have your hand up? 12 MR. ORSINGER: Yes. Two things. I wanted to 13 address Judge Christopher's general inquiry. I have been 14 through this debate over a number of years, and it seemed to me 15 the fundamental problem is the authorization to serve process 16 under the rule is individual in every single court, and we have 17 hundreds of them, and theoretically they could each have their 18 own standards that would make it impossible to do a business 19 statewide. I know they don't. I know that in a county like 20 Dallas or Bexar they tend to aggregate together, but apparently 21 in Tarrant County they haven't aggregated enough. So you still 22 have six different levels of courts with different orders 23 there, but the solemnity of serving process in a justice court, 24 county court, and a district court really are the same, so they 25 shouldn't be aggregated. I mean, they should be aggregated. Anna Renken & Associates (512) 476-7474 11876 1 Secondly, the problem is that although under the 2 present system it's the court that issues the process that sets 3 the standards by which process will be served, that process may 4 be sent from Houston to El Paso, or Houston to Texarkana or to 5 Amarillo, and all of the Houston courts are thinking in terms 6 of the Houston course, which is taught once a year, but the 7 process may be served in Amarillo by somebody that doesn't 8 attend the Houston course, and so the authorization logically 9 probably should be done on the county where the process is 10 served rather than the county out of which the process is 11 issued, or should I say the court out of which it's issued. 12 So I think that we have a problem here that if 13 you try to -- if you have a local process serving practice in 14 San Antonio and you get process out of Fort Worth, you probably 15 won't be compliant with it, none of your employees in San 16 Antonio would be compliant with it unless you put them in a car 17 to go up and take their course, but then they've got to go to 18 Houston to take their course and then in San Antonio they've 19 got to post a bond. And so it becomes impossible, really, I 20 think to do this on a statewide basis, and what should happen, 21 the Legislature should step in, and they ought to say, "Okay, 22 we're going to have certain minimum requirements and if you 23 meet them, our government agency is going to approve you and 24 you're authorized statewide," so that's my perspective on the 25 problem. Anna Renken & Associates (512) 476-7474 11877 1 Secondly, if we adopt this amendment of Rule 2 103, we're taking out the authority of the court to appoint 3 because under current Rule 103, subdivision (2), is "by any 4 person authorized by law or by written order of the court," and 5 this amendment takes out the "or by written order of the court" 6 language. So if you want to continue the "or by written order 7 of the court" avenue to power this authority, we need to be 8 sure that that gets included in our amended language. 9 HONORABLE SARAH DUNCAN: No, I don't know that I 10 want to. I mean, I don't do trial work, so I'm not familiar 11 with all the horrible things that process servers do, but it 12 seems to me that the Harris County judges have it right, that 13 there ought to be some minimal level of education for everybody 14 that's going to serve process, and just because I happen to 15 like Carl a lot and think he's a good guy doesn't mean that 16 he's had the training that ought to be required by a judicial 17 system to serve process, it seems to me. 18 MR. LOW: Richard, let me ask you a question. 19 Don't you think this committee could draw a rule just as well 20 as the Legislature would have some uniform practice what is 21 required so that it would be in this rule, it's been in 103, 22 and the judge up there in Tenaha couldn't issue an order that 23 you've got to live in Tenaha County for 10 years before you can 24 serve, and so the court -- people don't have to keep going to 25 the Supreme Court for every little thing and just draw a rule Anna Renken & Associates (512) 476-7474 11878 1 statewide. You don't think we could draw such a rule on 103? 2 MR. ORSINGER: Yeah, we could clearly do that, 3 and we have to eliminate opting out of it locally or else it 4 won't have the uniform effect; but remember, Buddy, that we 5 don't have the power here to pay for anybody to perform the 6 oversight service, so we either have to just deputize a private 7 organization to do the oversight or we have to have an 8 administrative order that's sufficiently detailed that a 9 private process could go to a private school in Dallas or Fort 10 Worth or wherever and meet the minimum criteria that we put in 11 this standard and then say to somebody, which under one 12 suggestion was the clerk of the Supreme Court, "Look, I've got 13 my 12 hours, I've got my 50,000-dollar bond or whatever the 14 requirements are, so issue me a passport that allows me to 15 serve process everywhere in the state." 16 MR. LOW: What about the State Bar? Couldn't 17 you involve them? I mean, that's not a private organization. 18 It's supervised -- 19 MR. ORSINGER: I mean, you know, nobody is going 20 to want to take this administrative responsibility on top of 21 what they're already doing. It reminds me of what the 22 Legislature did with MDL. They authorized this whole new layer 23 of procedure and then didn't provide any money for anybody to 24 do it, so the Supreme Court was gracious enough to take that on 25 as their administrative responsibility. Anna Renken & Associates (512) 476-7474 11879 1 Since the Legislature won't appropriate any 2 money to afford to do this we've got to find somebody to be in 3 oversight, and I agree it shouldn't be a private organization, 4 because this is a state function, but I don't see the district 5 -- any one district clerk stepping forward to do it for the 6 state, and I don't know whether the Supreme Court clerk would 7 step forward to do it for the whole state. 8 MR. LOW: Well, it sounds like to me you really 9 can't do anything when nobody wants to work. Just basically, I 10 mean, you're saying we've got to come up with somebody that 11 will agree to do a little work. 12 MR. THORNTON: If I may offer a suggestion along 13 those lines to move the discussion forward, and that is that 14 the various courts are having to deal with this issue now, and 15 it's taking a great deal of their time and effort and funds to 16 deal with this, and today I know we're talking about what 17 should we do and next steps are how should we do it, but one of 18 the suggestions that we came up with before is that once we get 19 this certification and our criminal background check then that 20 process server goes to the district clerk of the county where 21 he resides, presents those credentials, and they are issued 22 that standing order from that county in which they reside. 23 MR. ORSINGER: So that spreads the load around 24 the state, and it doesn't overwhelm any one employee 25 MR. THORNTON: Yes. And we think that's a Anna Renken & Associates (512) 476-7474 11880 1 reasonable solution to that issue 2 MR. LOW: But if the standards that each one of 3 those counties first have to abide by is uniform, I mean, 4 that's fine. 5 MR. THORNTON: Absolutely. 6 MR. ORSINGER: Right. 7 MR. LOW: And they certify, then there would be 8 a lot of district clerks working, and, I mean, why couldn't 9 that be done? 10 MR. ORSINGER: It could be. 11 MR. LOW: If we set the standards and then it 12 has to be certified by the district clerk, and, I mean, even if 13 you wanted to I guess you could have it like a local rule that 14 if somebody else had something more, you know, that operated 15 better and they wanted that's not inconsistent the Supreme 16 Court, you know, on approval, could do it, but why couldn't we 17 just draw a rule where the district clerk has to certify and 18 they do it under the same rule in every county? So then it 19 looks like to me we need to draw up the rules for the clerk. 20 Bonnie. And no reflection on district clerks 21 not working. I didn't mean that. 22 MS. WOLBRUECK: I guess I have to speak up for 23 the district clerks on the same issue that everybody has 24 spoken, is just the additional workload that's placed on a 25 clerk that's already strapped for budget needs and adding an Anna Renken & Associates (512) 476-7474 11881 1 additional function and duty. I mean, I know that that will 2 always be a concern for district clerks. 3 Now, having said that, if there are specific 4 guidelines, within, you know, does the clerk -- you know, what 5 kind of funding will the county have to provide for that type 6 of certification, that type of passport document or something, 7 you know, there's some funding issues here for the county also. 8 MR. LOW: You do that with regard to you decide 9 whether you're going to accept bonds, you look at the angle. A 10 lot of times you decide, and I don't know of anybody that knows 11 more about the rules of the court and so forth than the 12 district clerk. I'm not suggesting that you've got plenty of 13 work, but who else? I mean, we don't have any state agency, 14 and Richard and I can't make the Legislature pass something. 15 Yeah. 16 MR. JACKSON: Maybe you could make the fee 17 relative to the cost and expense of the district clerk and it 18 be paid to the district clerk to offset those services. 19 MR. ORSINGER: Great idea. 20 MR. THORNTON: Absolutely. 21 MR. LOW: And then -- but I think the main two 22 objectives is you want to have something uniform, something 23 that works, and something that doesn't make the Supreme Court 24 have to look at every I and every T and see if it's crossed. 25 Now, who's in charge of drawing that? Anna Renken & Associates (512) 476-7474 11882 1 HONORABLE NATHAN HECHT: Lisa. 2 MR. LOW: Chip just walked out and I see why he 3 walked out, but I -- until Judge Hecht punched me I didn't know 4 what was going on. 5 MR. ORSINGER: We already have drafts of stuff 6 like this that could be adapted, but I will tell you right now 7 that the real problem is not drafting something that makes 8 sense. The real problem was going to Bexar County and talking 9 them out of their bonding requirement or going to Houston and 10 asking them to allow them to have a school in any part of the 11 state, not just a school in Houston. We have to really get 12 buy-in probably as part of this process, I would think. At 13 least that's the way the Supreme Court has done it when they've 14 been doing other things that would overturn a bunch of local 15 rules. I mean, I'm speaking for you, Justice Hecht. I don't 16 know if you agree that that's part of it or not. 17 HONORABLE NATHAN HECHT: No. I mean, we're 18 trying to be the least disruptive and accommodate what a number 19 of good benches around the state have said is a worthy goal to 20 try to get more education, but we don't want to do it in such a 21 way that it volcanizes the status quo of judges as it always 22 does with one group doing one thing and another group doing 23 another thing. 24 MR. LOW: Bill. 25 PROFESSOR DORSANEO: Richard, didn't we make Anna Renken & Associates (512) 476-7474 11883 1 some progress on this the last time around? 2 MR. ORSINGER: Yeah. 3 PROFESSOR DORSANEO: Why are we starting over? 4 HONORABLE NATHAN HECHT: Well, because number 5 doesn't work. 6 MR. LOW: Right. 7 HONORABLE NATHAN HECHT: And so I guess we need 8 some sense of whether -- it sounds to me like people prefer B 9 rather than A or C, if they prefer anything at all. 10 PROFESSOR DORSANEO: B just passes the ball onto 11 the next team. 12 HONORABLE NATHAN HECHT: Right. Right. But I 13 don't have a good feel for whether the group thinks it's 14 acceptable to let Harris County do their thing for Harris 15 County and everybody else would take the association course 16 since that's the status quo. 17 MR. LOW: But the problem is that you may be 18 authorized by Harris County, but the suit may be in Fort Worth 19 or something, so would they -- would Fort Worth require 20 something different? 21 HONORABLE NATHAN HECHT: Well, we would say that 22 they couldn't. We would stop the wording and say nobody can 23 put any more requirements on it than exist currently, and we 24 would do away with some of the requirements which are like the 25 bond. Anna Renken & Associates (512) 476-7474 11884 1 MR. LOW: And would you grandfather Harris 2 County and -- 3 HONORABLE NATHAN HECHT: Yeah. 4 MR. LOW: I've never seen a rule that -- 5 MR. ORSINGER: Well, if you grandfather Harris 6 County, you don't knock the guys out that are serving Harris 7 County process in the other counties in the state. I mean, 8 it's not just a Harris County problem. Even though the court 9 is in Harris County, they're serving process in all the other 10 counties in Texas. 11 MR. LOPEZ: But you don't have to -- 12 HONORABLE NATHAN HECHT: But there are only two 13 courses, the one in Harris County and the association course. 14 That's the only -- nobody else has gone to the trouble of 15 putting a course together, and I doubt anybody wants to, but, 16 you know, nobody -- 17 MR. LOPEZ: You don't have to jump through any 18 additional hoops based on where you're serving it. 19 HONORABLE NATHAN HECHT: Right. 20 MR. LOPEZ: I mean, if you've got the order of 21 the court where it came out of, you can serve it wherever you 22 want, and that's all there is. 23 HONORABLE NATHAN HECHT: Right. 24 MR. LOW: Richard. 25 MR. MUNZINGER: Where and how often does the Anna Renken & Associates (512) 476-7474 11885 1 association offer its courses? 2 MR. THORNTON: We, as a matter of fact -- and 3 that's one of the issues that we've had in Harris County. They 4 offer theirs one time a year. We offer ours as a minimum four 5 times a year. Now -- 6 MR. MUNZINGER: Where? 7 MR. THORNTON: We have moved them around the 8 state. Typically we have them in Dallas, we have them in 9 Austin, Houston, and San Antonio. 10 MR. MUNZINGER: That's a long way from El Paso. 11 PROFESSOR DORSANEO: Everything is. 12 MR. MUNZINGER: That's what I'm saying, but if 13 some fellow wants to get a job to serve process and he's got to 14 go to Dallas to get there, I can tell you there's not a whole 15 lot of folks in El Paso that have got the money to go to 16 Dallas. 17 HONORABLE TOM GRAY: That are perfectly capable 18 of being process servers. 19 MR. MUNZINGER: I would be very, very loathed to 20 say that I have to take a course in Dallas sponsored by a 21 private organization to do something that is being done 22 efficiently and acceptably in El Paso, Texas, today. That 23 doesn't make sense. 24 MR. LOW: Well, what are you suggesting we do? 25 What do you suggest? Anna Renken & Associates (512) 476-7474 11886 1 MR. MUNZINGER: Well, make them offer their 2 course in El Paso, in Pecos, and what have you if you're going 3 to use them. I'm not meaning it in an ugly way. I just mean, 4 hey, my folks are citizens of the state. 5 MR. LOW: I'm not arguing with you. I mean, I'm 6 just wanting the answer. If they do that, that would be all 7 right? 8 MR. ORSINGER: Buddy, let me make a suggestion. 9 Why don't we -- why don't we do a list of what has to be 10 covered in a course, no matter who the sponsor is, county, 11 private, or whatever. It's got to be this many hours, it's got 12 to cover these topics, and then let's let the local group -- 13 like if the process servers in El Paso want to pay for an 14 organization to come to their community once a year to 15 authenticate everybody in that town or maybe the guys in West 16 Texas all want to meet over in San Angelo or someplace, let 17 them bring the course to them. We don't specify who has to be 18 the course provider. We just specify what has to be the course 19 content and then let them put the courses together themselves. 20 HONORABLE NATHAN HECHT: But let me -- I'm not 21 sure I have a sense of the group's thinking on the issue of 22 whether even though you might think it's a good idea to have 23 this training for private process servers generally, it isn't 24 going too far to tell the trial judges that they can't keep 25 doing what they've been doing, which is approving anybody they Anna Renken & Associates (512) 476-7474 11887 1 want. 2 Are we going to tell trial judges now -- it 3 seems to me a pretty big step to tell a whole lot of trial 4 judges who don't know anything about this issue, "From now on 5 you can't do it except this way," and that's why it seems to me 6 that down toward the bottom of page two that second issue is 7 going pretty far. 8 MR. LOW: But, Judge, anything you do, that's in 9 there; and then if we're just going to leave it up to the trial 10 judges why wouldn't you just stop there and say leave it up to 11 the trial judges? 12 HONORABLE NATHAN HECHT: Well, because already 13 we have requirements on the other end, and the trial judges are 14 getting together and saying, "Well, we're not going to do it -- 15 none of us are going to do it, is going to do it until these 16 requirements are met." But, now, if you try to accommodate 17 that as a group, shouldn't you let the judge in Navarro County 18 or El Paso County appoint Joe Smith if he's comfortable with 19 Joe Smith, even though he hasn't taken the course? It seems to 20 me it's pretty tough to tell the trial judges we're going to 21 change this when I don't see a compelling reason for it. 22 MR. LOW: Then -- 23 HONORABLE SARAH DUNCAN: I don't have a problem 24 with that. I think it -- 25 MR. LOW: Bill. Anna Renken & Associates (512) 476-7474 11888 1 PROFESSOR DORSANEO: Well, years ago Elaine and 2 I worked on a uniform local rules project, and I never saw a 3 more disgruntled group of people than the trial judges when 4 they were told things were going to be uniform, and I learned a 5 lot about how judges got to be judges and who voted for them 6 and who knew best and -- 7 PROFESSOR CARLSON: It was very lovely. 8 PROFESSOR DORSANEO: I don't know who appointed 9 me to that project, but it wasn't a very enjoyable experience. 10 HONORABLE NATHAN HECHT: Kind of like being on 11 the curriculum committee at law school? 12 PROFESSOR DORSANEO: Yes. 13 MR. LOW: Anybody have anything new to add, or, 14 Judge, what -- 15 PROFESSOR CARLSON: I just want to ask a 16 question. This is a one-time test one day, or a one-time 17 course one day? 18 MR. THORNTON: Right now it's an eight-hour 19 course and that's whether you go to Harris County or the Texas 20 Process Servers Association. Now, under current requirements 21 we would also suggest that certainly that be held on a 22 recurring basis to recertify. 23 PROFESSOR CARLSON: How often would you 24 recommend that? 25 MR. THORNTON: We're using as a rule of thumb Anna Renken & Associates (512) 476-7474 11889 1 two years at this point, and that allows us for a two-year 2 period to get an additional criminal records check if something 3 has happened in that two-year period. 4 MR. ORSINGER: So you recertify every two years? 5 MR. THORNTON: That's what we suggest. 6 PROFESSOR CARLSON: Judge Christopher, is that 7 true in Harris County? 8 HONORABLE TRACY CHRISTOPHER: To tell you the 9 truth, I don't know. I don't think you have to do it every 10 year, but I could be wrong. I think it lasts for two or three 11 years. 12 HONORABLE JANE BLAND: I thought it was three 13 years. 14 HONORABLE LEVI BENTON: Yeah, we do have a 15 recertification requirement, but I don't know the period. 16 HONORABLE TRACY CHRISTOPHER: I think it's 17 three. 18 HONORABLE NATHAN HECHT: I don't want to 19 misrepresent Judge Lindsey, but I think she told me that 20 they've never recertified anybody, they've just always 21 re-upped. 22 HONORABLE JANE BLAND: Well, we're only in our 23 second year of offering the course. 24 HONORABLE TRACY CHRISTOPHER: No, it's been 25 longer than that. Anna Renken & Associates (512) 476-7474 11890 1 HONORABLE JANE BLAND: Well, I know we've been 2 planning the course for longer than that, but I thought the 3 first course was only a couple of years ago. 4 HONORABLE LEVI BENTON: I will e-mail Judge 5 Lindsey now. 6 MR. LOW: Looking at the problem, what is the 7 problem with the way it is now and then go from there. Is one 8 of the problems, Judge, that it's not uniform in each -- well, 9 if you allow every district judge to do it, it's not going 10 going to be uniform again, will it? 11 HONORABLE TRACY CHRISTOPHER: Well -- 12 MR. LOW: Go ahead. 13 HONORABLE TRACY CHRISTOPHER: I think if we took 14 alternative B, and we had (1) and we had (2) and then we have 15 (3), by order of the court, that that would solve the problem 16 because it would allow people in the smaller counties who 17 wanted to use the people that they had always used to go ahead 18 -- that they were comfortable with to go ahead and certify with 19 them. 20 We could have the Supreme Court say, okay, as 21 far as we're concerned Harris County's course is acceptable, 22 the private process servers association's course is acceptable; 23 and if you've taken one of those two courses, you're on the 24 list. And then if a new company comes up and says, "Hey, I 25 want to start offering this course," you could look at it and Anna Renken & Associates (512) 476-7474 11891 1 decide whether you would want to approve their course. And 2 then some private process servers who wanted to get, you know, 3 basically certified statewide could go through that process. 4 Then if you didn't want to get certified statewide, then you 5 would just go back and get your order from your trial judge 6 like you always did. 7 MR. LOW: Can we have a show of hands as to who 8 agrees with that? 9 MR. LOPEZ: Can I ask a question about it first 10 to clarify? 11 MR. LOW: Okay, just don't ask it to me. 12 MR. LOPEZ: Would that include -- would that 13 grandfather in the people -- not statewide, but grandfather 14 them in if they've already got an order out of a specific court 15 in order to serve out of that court? Right? 16 MR. TIPPS: It would depend on what the order 17 said. 18 HONORABLE TRACY CHRISTOPHER: I don't know how 19 the orders work in other places. 20 MR. LOPEZ: Well, I don't either, but in a small 21 county where you've been doing it for 10 years and the judge 22 doesn't have a problem with it -- 23 MR. ORSINGER: Can we decide that question 24 separately? Because we may have a difference of opinion on 25 whether we ought to make everybody do a new certification or Anna Renken & Associates (512) 476-7474 11892 1 not, but to me your proposal has validity. 2 MR. LOW: Let's sever that out and let's vote on 3 Jane's -- 4 HONORABLE NATHAN HECHT: Tracy. 5 HONORABLE TRACY CHRISTOPHER: That's all right. 6 MR. LOW: I'm sorry. They always sit together. 7 Excuse me. I didn't even know that Jane was here today. 8 HONORABLE JANE BLAND: I didn't hear that, and 9 I'm probably glad I didn't. 10 MR. DENNER: Would you restate that? 11 MR. THORNTON: Would you recapitulate that? 12 HONORABLE TRACY CHRISTOPHER: Okay. Well, my 13 proposal is to take alternative B, but to add No. (3), which is 14 back to our old "or by written order of the court" that's in 15 the current Rule 103, and then the Supreme Court would look at 16 Harris County's system and say, "Yeah, that course is good, so 17 if you take their course you're certified" and the private 18 process service association's course, "That's good, and if 19 you've taken that course, you're certified." 20 And then if some new entity wants to apply to 21 the Supreme Court and the Supreme Court says, "Yeah, it looks 22 like you've got a good course going there, so you're good, 23 too," to allow for a little free enterprise and capitalism on 24 the courses. So that's my plan. 25 MR. LOW: All in favor of Tracy's plan, raise Anna Renken & Associates (512) 476-7474 11893 1 your hand. 2 All against that? 3 MR. THORNTON: Can we vote? 4 MR. LOW: Only two people against, three. All 5 right. Now, Richard, do you have another proposition you 6 wanted to do? 7 MR. ORSINGER: No. I like hers, but I think 8 that we need to work with the language that goes in the 9 administrative order about are we just going to name these two 10 courses and then say "and anyone else that applies" or are we 11 going to put some standards in there? 12 MR. LOW: You asked the question, now answer it. 13 MR. ORSINGER: Well, I mean, my inclination 14 would be to put down the fundamentals that you would have to 15 have in order to get a course approved, just so if someone 16 wants to start one they have a road map to go by, just as an 17 aid, and that wouldn't be that hard. We could work with Harris 18 County and others and come up with criteria for a course that 19 would be legitimate and long enough to ensure instruction. 20 MR. LOW: Anybody have any suggestions to that? 21 Bill. 22 PROFESSOR DORSANEO: I think that's a good idea. 23 I think probably most people will. One thought of potential 24 modifications, maybe it's unwise, but how about "written order 25 of the trial court signed before the effective date of this Anna Renken & Associates (512) 476-7474 11894 1 rule" or some way to grandfather everybody so as not to, you 2 know, cancel court orders that have been made, which I think 3 would irritate any judge if there just was an order from above 4 that some of your orders are no longer valid. We can kind of 5 work the people into the new process. That doesn't satisfy 6 Richard's problem of where the test should be taken, and I 7 don't know enough about it. Is it possible to give this test 8 on the internet? 9 MR. THORNTON: It is possible. 10 MR. ORSINGER: Is it a test, or is it a course 11 of study? 12 MR. THORNTON: Well, currently in the Texas 13 Process Servers it's a course of study. We offer a test for 14 certification now. 15 MR. ORSINGER: Are you recommending that -- does 16 Harris County have a test at the end of their course? 17 MR. THORNTON: They do. 18 MR. ORSINGER: So you have to have a test to be 19 sure they were listening and not reading? 20 HONORABLE TRACY CHRISTOPHER: Right. 21 MR. ORSINGER: So it would be like a driver's 22 test. 23 MR. THORNTON: Let me just add that you are 24 talking about alternative B, and don't forget that there is a 25 footnote to alternative B that still segregates Harris County Anna Renken & Associates (512) 476-7474 11895 1 and doesn't allow process service in their county. I just want 2 to point that out. 3 HONORABLE TRACY CHRISTOPHER: Well, my plan did 4 not include footnote B. I mean, I personally think that if -- 5 and I'm sure Tony disagrees with me, but I personally think 6 that if we get one certification there shouldn't be a separate 7 requirement that it's only the Harris County certification for 8 Harris County. 9 HONORABLE NATHAN HECHT: If we could drive a 10 wedge through the Houston judges, that would be -- 11 HONORABLE TRACY CHRISTOPHER: I'm willing to 12 accept the Supreme Court's rule that says this person is 13 certified. 14 HONORABLE JANE BLAND: We just put up a good 15 front. 16 MR. JACKSON: I'm still a little concerned with 17 this requirement that they be retested every two years. I 18 don't know of any profession that requires you to pass a test 19 to stay employed every two years. 20 MR. LOW: I mean, that doesn't -- that's not 21 within -- we've gotten past Tracy's proposal and now we're to 22 the second one and you're saying that that -- 23 MR. JACKSON: Well, what I heard them say is 24 that you have to pass another test every two years or retest 25 every two years. Anna Renken & Associates (512) 476-7474 11896 1 MR. THORNTON: I was asked the question, and 2 that was just a recommendation. 3 MR. ORSINGER: That's really not part of the 4 rule that was proposed. So as literally adopted, you get 5 certified once and you stay certified forever. I'm not sure I 6 agree with that, but, I mean, we didn't address that in that 7 motion. 8 MR. LOW: Yeah. If the Court wants to hear it 9 further about whether how that kind of thing, but I think they 10 want the overall concept I believe. 11 HONORABLE NATHAN HECHT: Well, I'm sympathetic 12 to what Bill said earlier. We've talked about this at great 13 length, and we're just kind of coming back because there have 14 been some new developments, but I think I have a sense of what 15 the committee likes 16 MR. LOW: You think you've heard enough? 17 HONORABLE NATHAN HECHT: Well, I'm willing to 18 listen to more, but -- 19 MR. ORSINGER: Well, Buddy, does -- Justice 20 Hecht, do you want our subcommittee to try to put together some 21 standards, or do you want to just work on that internally? 22 HONORABLE NATHAN HECHT: No, I wish you would. 23 MR. ORSINGER: Okay. 24 MR. LOW: And then, Jane, you'll finalize -- 25 HONORABLE NATHAN HECHT: Tracy. Anna Renken & Associates (512) 476-7474 11897 1 MR. LOW: How old do you have to be before you 2 have Alzheimer's? 3 HONORABLE JANE BLAND: A lot younger than you 4 are. 5 MR. LOPEZ: Can we take judicial notice of that? 6 MR. LOW: Can you finalize without the footnote? 7 Anything else on that? Okay. 8 HONORABLE NATHAN HECHT: What's next? 9 MR. LOW: Appellate rule changes. Bill, I 10 believe. 11 PROFESSOR DORSANEO: Oh. Okay. The first thing 12 is that you probably don't have the last version, so let me 13 pass those around. I hope I have enough copies. 14 MS. SWEENEY: Bill, when was the last one 15 e-mailed? 16 PROFESSOR DORSANEO: Huh? 17 HONORABLE TOM GRAY: It wasn't. 18 MS. SWEENEY: It wasn't? 19 HONORABLE TOM GRAY: No. He's handing it out 20 now. 21 PROFESSOR DORSANEO: Well, it's not that 22 incredibly different. 23 MR. HAMILTON: What's the date on it, Bill? The 24 date? 25 PROFESSOR DORSANEO: It's the date of August Anna Renken & Associates (512) 476-7474 11898 1 11th, 2004. I think the one that was e-mailed was dated August 2 6th. 3 MS. SENNEFF: No, we changed that. We changed 4 that. 5 PROFESSOR DORSANEO: Well, you and my secretary 6 did things that I don't know about. At any rate, what's being 7 passed out, I had 40 copies, so there should be enough. It's a 8 little different. If you are using the other one it's not 9 really going to make that much difference. 10 MS. SWEENEY: So, Bill, if we have something 11 dated August 11th, that's what you're passing out? 12 PROFESSOR DORSANEO: Well, as I understand what 13 Angie just said, there are two things dated August 11th, and 14 what is being passed out with more exhibits to it is the one 15 that I'm going to use. Trust me, it's not going to make very 16 much difference in the discussion. 17 There are basically four items, each one 18 somewhat complicated. The first one involves the Civil 19 Practice and Remedies Code Section 51.014(d) through (f), which 20 was passed in 2001, and as the cover memo says, it authorizes 21 courts of appeals to permit immediate interlocutory appeals of 22 nonfinal orders if they're not otherwise immediately 23 appealable. 24 The first point is I think this is the only 25 statute passed by the Legislature that gives courts of appeals Anna Renken & Associates (512) 476-7474 11899 1 the ability to permit or not to permit appeals. It is more 2 complicated than that because the statute also provides that 3 the trial court must make an order which talks about the 4 underlying order that will be the subject of the appeal in 5 compliance with the statute, and the statute could be read and 6 has been read to require the trial court to find that 7 there's -- that there's substantial ground for disagreement 8 with respect to the underlying order's correctness, and beyond 9 that that the appeal -- if the appeal is taken, that will have 10 the effect -- and I don't have the statutory language in front 11 of me, but that that will materially advance the ultimate 12 termination of the litigation. 13 There is yet another requirement that the 14 parties agree to the immediate appeal, which makes our statute 15 different from the Federal statute from which it was largely 16 drawn. 17 Now, the problem, beyond the fact that the 18 statute is less than crystal clear that we're seeking to 19 address, is that there is no appellate rule which explains how 20 you go about filing one of these appeals, perfecting one of 21 these appeals if you like, and getting permission from the 22 court of appeals; and as far as I can tell in the four or five 23 times that people have attempted to take advantage of this 24 statute, no one has done so successfully. That's perhaps 25 because the Rules of Appellate Procedure don't say how to go Anna Renken & Associates (512) 476-7474 11900 1 about this, and there are a couple of cases where people 2 couldn't read the statute to conclude that agreement of the 3 parties is necessary. Those cases are probably not that big of 4 a deal. 5 There are more cases where someone filed a 6 notice of appeal, but the notice of appeal complied with the 7 requirements of appellate Rule 25 and didn't say enough about 8 the issues that would need to be addressed by the court of 9 appeals in order to decide whether to grant permission. And 10 that's why we began to work on this draft rule. 11 Now, if I can go through attachment A, which is 12 immediately after the three-page memo, you get the idea of what 13 I had in mind, and we didn't take a vote of the entire 14 committee, and I didn't hear back from people, so I think it's 15 just right now what I had in mind both in terms of where to put 16 this in the rule and how to go about it. Frankly, it doesn't 17 want to fit into our rulebook under the current appellate 18 rules. 19 When I drafted the first appellate rules, I 20 copied the Federal Rules of Civil Procedure -- Federal Rules of 21 Appellate Procedure in many respects, and our original 22 appellate rules had, as they do now, two rules about perfecting 23 the appeal. One was how, how an appeal would be perfected; and 24 the second one, which became appellate Rule 26, would be the 25 time for perfecting it, when perfected. Anna Renken & Associates (512) 476-7474 11901 1 Our current rules still kind of mirror that, but 2 the headings have changed such that the heading to appellate 3 Rule 25 now is just "perfecting appeal," and what I would 4 suggest in order to try to fit this into the rulebook would be 5 to change the subheading to 25.1 from "civil cases" to "civil 6 cases - appeal as of right." The structural change would be to 7 keep all of what is in 25.1 with the new heading and to add a 8 new 25.2, which is drafted along with some minor adjustment to 9 25.1, and entitle that civil -- no, I -- what did I do here? 10 PROFESSOR CARLSON: Is it "appeal by 11 permission"? 12 PROFESSOR DORSANEO: Yeah, "appeal by 13 permission." 14 Yeah. There's a mistake in this draft here. I 15 apologize for that. The idea, at any rate, is to have a 25.2, 16 which would be entitled "civil cases -- appeal by permission," 17 and that would -- I don't know how I managed to do this, and 18 that would begin with "petition for permission to appeal," 19 which would not be (b). It would be (a), and (c), "contents of 20 petition" would be (b). I've got my iteration wrong basically. 21 Let me try to work through with it despite the deficiencies in 22 my own draft. 23 25.1, which contains a number of provisions, 24 including notice of appeal, okay, I would make a slight change 25 in 25.1(a), and the only reason for making this change is to Anna Renken & Associates (512) 476-7474 11902 1 make 25.1(a) and 25.2(a) look like they're drafted with the 2 same information in them. Right now an appeal is perfected 3 when a written notice of appeal is filed with the trial court 4 clerk, but it doesn't say in 25.1(a) "within the time allowed 5 by Rule 26," which strikes me as odd to begin with. 6 The Federal rule which bears a strong 7 resemblance to 25.1(a) talks about the -- Federal Rule 3, I 8 believe, talks about "within the time allowed by Rule 4," so I 9 would suggest adding that language into 25.1(a) and doing 10 nothing else with 25.1 other than changing the title from 11 "civil cases" to "civil cases - appeal as of right." 12 Now, if you go to page two, what I attempted to 13 do and I messed up in this draft, was to begin a new 25.2, 14 which would be instead of "criminal cases," which would move 15 down to 25.3, it would be "civil cases - appeal by permission." 16 In Federal Appellate Rule 5, that is the heading, "appeal by 17 permission," and this first subparagraph, which would be (a), 18 would indicate the method for appealing by permission. It 19 would be by petition, and aside from the heading, "permission 20 for petition to appeal," the draft mirrors Federal appellate 21 Rule 5. "To request permission to appeal an interlocutory 22 order that is not otherwise appealable as of right, a party 23 must file a petition for permission to appeal not later than 24 the 10th day after the date a district court signs a written 25 order granting permission to appeal." Anna Renken & Associates (512) 476-7474 11903 1 Now, actually, in addition to mirroring or being 2 modeled on Federal Appellate Rule 5, and perhaps more 3 importantly, the language with respect to the timing comes from 4 the statute. 51.014(f) talks about this: "If an application 5 is made to the court of appeals that has appellate jurisdiction 6 over the section not later than the 10th date after the date an 7 interlocutory order under subsection (d) is entered the 8 appellate court may permit an appeal. So this first 9 subparagraph, which, again, would be (a) talks about using a 10 petition and copies the statutory time period, I think, 11 verbatim or nearly verbatim from the statutory provision, 12 which, of course, gives us a different time for attempting to 13 appeal under these circumstances under this statute than is 14 normal, but the statute says what it says. 15 Now, with respect to the contents of the 16 petition, what I did was to look at the notice of appeal, 17 because it doesn't say anything in the statute really directly 18 in (f) about the petition, but to look at the appellate rule 19 and to pick out from 25.1 the things that are in the notice of 20 appeal it would seem to me to be things that also want to go 21 into this -- also ought to go into this petition, and perhaps 22 not all of these need to be in there, but it seemed to me that 23 these would be the things to be included. To an extent this 24 matches the Federal rule, but it's really an amalgamation of 25 what's in a notice of appeal and what's identified in the Anna Renken & Associates (512) 476-7474 11904 1 Federal rules as appropriate in Federal practice with a few 2 little exceptions. 3 The (5), "state that all parties agree to the 4 order granting permission to appeal," is based on the statute. 5 The Federal rule does not require that. The statute does. 6 Obviously the notice of appeal provisions don't require that 7 either. (7) is one that could involve some debate because it 8 more clearly mirrors the Federal rule with respect to the 9 petitions in Federal court than it does the -- than it does the 10 Texas statute. 11 Now, I have, if you have the draft that I have 12 brought with me today, an alternative to (7) over in the next 13 memo, which would more closely track what our courts have been 14 interpreting the statute to mean. Instead of saying "state 15 concisely the issues or points presented," which both of them 16 say, the Federal rule talks about the facts necessary to 17 understand the issues or points presented and the reasons why 18 the appeal is authorized and should be allowed. That's more 19 general language than the language that we could use, which 20 I've put in alternative (7), which more closely mirrors the 21 statute and, frankly, the language in cases such as the Stolte 22 case, written by Justice Duncan, which sets forth what the 23 petition would say. 24 This raises an additional layer of complexity 25 from my standpoint that I won't go into at this point that Anna Renken & Associates (512) 476-7474 11905 1 doesn't really appear to have been addressed by any opinion 2 that I've read that maybe the statute doesn't require as much 3 as the courts have been saying on the issues because of the way 4 the statute is worded, but at any rate, that's the contents of 5 the petition. 6 The Federal rule talks about other papers; and, 7 monkey-see monkey-do, I put in a subsection on that allowing 8 another party to file a response or another petition not later 9 than seven days after the initial petition is served. As I 10 read the statute, all parties must agree to the -- all parties 11 must agree to the order granting permission, so presumably 12 unless somebody decided to take it back, if you could take it 13 back, their petition or their response would just be extra -- 14 extra information of some kind. I'm not really sure what it 15 would be or whether that's necessary. 16 The length of petitions subparagraph, which 17 again would be (d), since I started with (b) rather than the 18 (a) in my miscrafted document here is something that's in the 19 Federal rule and the length in the Federal rule is "a paper 20 must not exceed 20 pages." And the justices on our committee 21 who were there and voting thought that that was too many pages. 22 Frankly, what these look like in Federal practice are petitions 23 for review, are petitions for review to the Texas Supreme 24 Court. I'm doing one right now in the Ninth Circuit in Dukes 25 vs. Wal-Mart, and it looks exactly like that, and it is a Anna Renken & Associates (512) 476-7474 11906 1 pretty lengthy item. 2 I'm not sure profitably if all of this can be 3 reduced to five pages if someone is going to need to cover the 4 issues that are in 51.014(d), substantial difference of 5 opinion, and the second issue, substantial difference of 6 opinion as to a controlling question of law and an immediate 7 appeal may materially advance the ultimate determination of the 8 litigation. Well, our subcommittee thought shorter would be 9 better than longer, and five is certainly shorter. 10 I made the five pages exclusive of things in our 11 normal way of things. "Exclusive of pages containing identity 12 of parties and counsel, any table of contents," because I don't 13 know whether there would need to be one, "any index of 14 authorities," for the same reason. The issues presented, the 15 issues presented are required to be stated in the contents 16 provision and the signature and proof of service, so I guess 17 this would really be about 10 pages long in terms of the actual 18 number of pages, but the so-called brief of the argument would 19 be pretty short. 20 And then bringing up the rear, if the petition 21 is granted, how do we keep going, and it seemed to me that what 22 we ought to do to keep going is for the appellant to do the 23 things that an appellant would need to do at or before -- at or 24 simultaneous with, or whatever the rules say, with the 25 perfection of appeal by notice of appeal, which is request in Anna Renken & Associates (512) 476-7474 11907 1 writing that the official reporter prepare the reporter's 2 record, notify the trial court clerk appropriately, and 3 including filing any written designations, specifying items for 4 the clerk's record. I have "pay any required fees," rather 5 than "pay any required fees or make arrangements with the court 6 clerk and the court reporter that are satisfactory to them for 7 payment of the fees." I made it "payment of any required 8 fees." Maybe that needs some change. 9 No notice of appeal. That's consistent with the 10 Federal rule. I don't know whether we need this sentence, 11 which is copied from the Federal rule. It doesn't hurt for it 12 to be in there. And then the appellate record must be filed; 13 and I put "within 10 days after entering the order granting 14 permission to appeal," because that seemed to me to be 15 consistent with accelerated appeals; and I don't know how long 16 this is going to take; but, you know, if not 10 days maybe some 17 other number of days, but we have in I guess appellate Rule 35 18 that kind of a menu. I think accelerated appeals I think it is 19 10 days. This looks more like an ordinary accelerated appeal 20 except it's a permission and by agreement accelerated appeal 21 than it looks like anything else. 22 Now, there's one other issue that I'll raise 23 that occurred to me at about the same time it occurred to me 24 that (7) and contents could be different and more specific to 25 our statute than to copy the Federal rule, and that is the Anna Renken & Associates (512) 476-7474 11908 1 extension of time principle, and the Stolte case and a case out 2 of Dallas called D.B. reach opposite conclusions with respect 3 to whether you can file a motion for extension of time under 4 26.3 in this kind of statutory appeal. The D.B. case says 5 "no," and that also by implication means that you won't have 6 any implied motions for extension of time under the rule of 7 Robert vs. Dorner. 8 Justice Duncan's Fourth Court's opinion in 9 Stolte disagrees with that, and I think the members of the 10 committee don't think it's a good idea to make it a hard and 11 fast 10-day requirement without filing a motion for extension 12 of time, and probably some way or another that concept ought to 13 be put into the rulebook. I'd say consider adding it into new 14 25.2, but I really don't like that because it doesn't look as 15 neat if you tried to fit it somehow into 26.3 where it appears. 16 Maybe something could be written into the new 17 25.2, if that's how you want to go, that would cross-refer 18 to -- cross-refer to 26. But then it's starting to look like 19 discovery rules to me where I have to go from rule to rule to 20 rule and get lost along the way occasionally, so I would say we 21 could put this in a new 25.2, but it looks a little bit like 22 remodeling a house that wasn't designed to have this particular 23 feature in it. There might be some other way to go. 24 At any rate, that's my -- was my best effort, 25 and I apologize for screwing it up in terms of where 25.2 Anna Renken & Associates (512) 476-7474 11909 1 begins and the iteration (a), (b), (c), (d), instead of (b), 2 (c), (d), (e), (f). I hope I'm not confusing people about that 3 at this point. 4 CHAIRMAN BABCOCK: Justice Hecht. 5 HONORABLE NATHAN HECHT: I haven't gone back to 6 look at the Federal practice, but since this has to be agreed 7 to by the parties, what is the thinking about why one -- 8 someone should be a petitioner and someone in a respondent 9 position? It seems to me it's quite likely they would have 10 different positions on why the issues are important or what 11 significance they might have, so they probably couldn't go 12 together on it, but if you were thinking, "Well, we just agreed 13 yesterday. We got the trial judge to sign the order, and he 14 says it's fine," it looks to me like there's going to have to 15 be some agreement, but who's going to be the petitioner because 16 otherwise you're scrambling around and on the ninth day the 17 other side files their petition, and where are you? 18 CHAIRMAN BABCOCK: Wouldn't the petitioner be 19 the party against whom the ruling went? 20 HONORABLE NATHAN HECHT: It could be. 21 CHAIRMAN BABCOCK: It wouldn't necessarily have 22 to be, I suppose. 23 PROFESSOR DORSANEO: Well, yeah, it's pretty 24 clear in the Wal-Mart case who the petitioner is in the class 25 certification order, for example. Anna Renken & Associates (512) 476-7474 11910 1 CHAIRMAN BABCOCK: Yeah, but I mean, you move 2 for an interlocutory relief and you win it. It would be a rare 3 case where you would say "but I'm not so sure about that." 4 HONORABLE NATHAN HECHT: And the other side 5 agrees, and so the person that wants different relief would be 6 the petitioner. 7 CHAIRMAN BABCOCK: Right. Yeah. That's right. 8 HONORABLE TOM GRAY: And if they both wanted 9 relief, we have that problem now from the appeal of judgment. 10 Can you have two appellants from the same judgment now that are 11 crossways with each other, and so we have two petitioners, and 12 the same thing as well in this proceeding? 13 PROFESSOR DORSANEO: All I did was say -- I 14 didn't pick the first petitioner. We could do that by saying 15 something like "agreed by the order," but still both parties 16 could be agreed, I suppose. 17 MR. LOW: Let me ask you this. This is 18 different from the Federal rule in one way. The Federal rule 19 doesn't require any kind of agreement. It just says if 20 somebody wants to they can petition and by order. Our rule 21 says that the judge can do it only if both parties agree. Now, 22 why isn't that an interlocutory appeal, which is governed by 23 all the same rules as other interlocutory appeals, and any 24 other appeal you don't have to ask the court of appeals for 25 permission. Anna Renken & Associates (512) 476-7474 11911 1 PROFESSOR DORSANEO: Because the statute says 2 the court of appeals may permit the appeal, suggesting strongly 3 that the court of appeals doesn't have to permit the appeal. 4 PROFESSOR CARLSON: And they haven't. 5 MR. LOW: In Beaumont -- okay. Well, I guess 6 I'm governed by what I get. 7 PROFESSOR DORSANEO: People have filed notices 8 of appeal in compliance with 25, and they have basically been 9 either sent back to the drawing board or thrown out 10 MR. LOW: But it -- 11 PROFESSOR DORSANEO: Depending upon what court 12 of appeals you're in. 13 MR. LOW: But very easily like the case where 14 the question -- Louisiana law says an agreement on certain 15 things, void, signed in Louisiana. The question is will they 16 be bound by Louisiana law or Texas. The trial judge rules, and 17 the way he rules is going to determine whether we want to try a 18 lawsuit, if it's one way or the other side, and we just agree, 19 and we had no -- and Judge Gaultney took it, and I wasn't aware 20 of the fact that he didn't have to. 21 HONORABLE TOM GRAY: You need to thank him. 22 CHAIRMAN BABCOCK: Justice Gray. 23 HONORABLE TOM GRAY: Since it does have to be 24 done by agreement of the parties, and it is supposed to be 25 something that's going to be advancing the litigation, I don't Anna Renken & Associates (512) 476-7474 11912 1 understand why we would want to impose (a), within 10 days 2 after the" -- 3 HONORABLE SARAH DUNCAN: It's in the statute. 4 HONORABLE TRACY CHRISTOPHER: It's in the 5 statute. 6 HONORABLE TOM GRAY: Is it in the statute? 7 HONORABLE SARAH DUNCAN: Yes. 8 HONORABLE TOM GRAY: Never mind. 9 HONORABLE SARAH DUNCAN: Which causes the 10 problem that 10 days is nowhere close to a procedure, but 11 that's what the Legislature picked. 12 PROFESSOR DORSANEO: One point that I want to 13 make that's a hidden -- that I alluded to is the thing that's 14 been bothering me about this statute that doesn't appear to 15 have been addressed, that in (d), which is the provision of the 16 statute. I'm sorry I didn't copy it. It talks about what the 17 trial court order needs to say. It talks -- the order saying 18 that the underlying order should be subject to an interlocutory 19 appeal. It says -- there are three parts. The first part is 20 the parties agree that the order involves a controlling 21 question of law for which there is a substantial ground for 22 difference of opinion. It doesn't say the trial court finds 23 that the underlying order involves a controlling question of 24 law for which there is a substantial ground for difference of 25 opinion. It says that the order needs to say that the parties Anna Renken & Associates (512) 476-7474 11913 1 agree that the order involves a controlling question of law and 2 that the judge might have got it wrong. 3 Okay. Then the next one says, (2), doesn't talk 4 about the parties, so it's talking about the judge, "An 5 immediate appeal from the order may materially advance the 6 ultimate determination of the litigation," something which I 7 think the trial judge would be in a position to advise the 8 court of appeals, because, you know, if I rule this way then 9 things turn out differently than if I rule the other way; and 10 then (3), the parties agree to the order; and I think all the 11 court of appeals have done two things with this statute. One, 12 they've assumed that the trial judge has to find not that the 13 parties agree that the order involves a controlling question, 14 but that the order involves a controlling question of law as to 15 which there is substantial ground for difference of opinion and 16 an immediate appeal from the order may materially advance the 17 ultimate determination of the litigation, and the third thing, 18 and the parties agree to the order. Okay. Which is an order 19 granting permission to appeal. 20 Now, I don't know why, you know, this doesn't 21 appear on the face of any of the opinions. Maybe it wasn't 22 argued, but on the face of the statute it seems to me that 23 maybe what the trial court's job is, is less onerous than 24 what's being assumed. And the second part is of more 25 significance. It's assumed that when the appellate court is Anna Renken & Associates (512) 476-7474 11914 1 deciding whether to permit an appeal it will address those same 2 things, the trial court's finding that there's a controlling 3 question of law and substantial ground for difference of 4 opinion, getting to the controlling question, and not whether 5 the parties agree the order involves a controlling question, 6 and then getting to the second and third items. 7 The statute is completely silent on what the 8 court of appeals would use as a basis for granting or denying 9 permission, and I think it would make sense to go back to (d) 10 to see what the considerations would be, but when I go back to 11 (d) I get confused about what the trial judge is finding; and 12 if I look at the literal wording, it is at least an alternative 13 interpretation that neither the trial court nor the court of 14 appeals is to be giving detailed consideration about the 15 controlling question of law and substantial difference of 16 opinion issues. 17 Now, maybe that doesn't make any sense that 18 that's the way you would do things, but you know, that's an 19 issue on the face of the statute. I just want to throw that 20 out. Maybe people would say all the court of appeals are right 21 and it's not drafted all that well, but what we're talking 22 about in (1) is what trial court finds, okay, and that extra 23 requirement of the parties agree or that extra language is just 24 a redundancy of (3). 25 So I find this all quite confusing, and I think Anna Renken & Associates (512) 476-7474 11915 1 what we attempted to do was draft something so we could 2 actually see somebody get to the finish line in one of these 3 cases. I guess some of these cases where people have been told 4 to start over they managed to satisfy what the court of appeals 5 said the requirements are, but, you know, that first issue 6 involves a lot of issues, including page length, the complexity 7 of the analysis the court of appeals would go through, and that 8 would affect how the petition rule is drafted. 9 CHAIRMAN BABCOCK: Bill, you have here in 25.2, 10 renumbered (b)(7), you say "the reasons why the appeal is 11 authorized and should be allowed and the relief sought." 12 PROFESSOR DORSANEO: That's one version of it, 13 yes 14 CHAIRMAN BABCOCK: Okay. And that's kind of 15 leaving it up for whatever they can think of to persuade the 16 court. 17 PROFESSOR DORSANEO: Well, the reason why -- and 18 the reason why I don't exactly like that language now, I took 19 that from the Federal rule. Now, in the Federal practice there 20 are more statutes that provide for permission to appeal than 28 21 United States Code 1292(b), which is what our statute is taken 22 from, so when Federal Appellate Rule 5 was redrafted a couple 23 of years ago the language was made more general. Okay. I 24 don't think this general language is necessarily as good as the 25 more specific language, which, again, is a couple of pages Anna Renken & Associates (512) 476-7474 11916 1 over. 2 "The reasons why the order complained of 3 involves a controlling question of law as to which there is 4 substantial ground for difference of opinion, why an immediate 5 appeal may materially advance the ultimate termination of the 6 litigation, and the relief sought." The second alternative 7 goes to the statute, but it goes to the statute under the 8 courts of appeals' current interpretation of it, which makes 9 whether it's "controlling question of law as to which there is 10 substantial ground for difference of opinion" a subject of a 11 judicial finding in the first instance in the trial court and 12 then as part of the decision to permit the appeal in the second 13 instance in the court of appeals. 14 CHAIRMAN BABCOCK: Bill, if you do it this way, 15 though, if you do the alternative, there are cases -- I'm 16 thinking declaratory judgment cases -- where there may be a 17 partial summary judgement, and the parties need that issue 18 resolved one way or the other because if time progresses, time 19 marches on, bad things will happen to them substantively; 20 whereas at the time of the summary judgement or the declaratory 21 judgment, it's only perceived harm that will happen. I'm 22 thinking of a breach of contract case where some event is going 23 to happen two years from now. We say that when that event 24 happens we have these rights and responsibilities; and I could 25 foresee parties getting together and saying, "We understand Anna Renken & Associates (512) 476-7474 11917 1 what the judge did, but we need that finally resolved now"; and 2 your alternative wouldn't allow for that kind of a 3 circumstance. You understand what I'm saying? Probably not. 4 PROFESSOR DORSANEO: No, I don't understand it. 5 It's probably my fault, but I don't understand. 6 CHAIRMAN BABCOCK: No, I'm sure it's my fault. 7 You have a dec action filed, and the request for relief is that 8 upon the happening of these events we will not be in breach of 9 contract. The events to occur, you know, in a couple of years, 10 so the litigation is marching forward to that two-year period, 11 and you litigate it and the court says one way or the other but 12 doesn't resolve all the other issues in the lawsuit. You might 13 want to -- you might want to get an appellate decision on that 14 issue, even though the rest of the case isn't resolved and all 15 parties might agree to it. But it wouldn't fit the standard 16 you have in the alternative here. 17 HONORABLE SARAH DUNCAN: Why not? 18 PROFESSOR DORSANEO: Why wouldn't it? 19 CHAIRMAN BABCOCK: Because it's not involving a 20 controlling question of law in which there's a substantial 21 ground for difference of opinion. I mean, the law itself is 22 just application of the facts to the law. 23 PROFESSOR DORSANEO: Well, that's going to take 24 you right back to the statute, Chip, because in (d)(1), that 25 controlling question of law -- there's an extra "s" in my Anna Renken & Associates (512) 476-7474 11918 1 draft, so more flaws. 2 CHAIRMAN BABCOCK: Which one, your new (d)? 3 PROFESSOR DORSANEO: New alternative (7) tracks 4 the statute, assuming that a controlling question of law to 5 which there is a substantial ground for difference of opinion 6 is a matter for judges and not just a matter for the parties to 7 agree. 8 HONORABLE SARAH DUNCAN: Yeah, I think your 9 scenario, Chip, comes squarely within (7). 10 CHAIRMAN BABCOCK: You think it does? 11 HONORABLE SARAH DUNCAN: That's what a 12 controlling question of law is, is a question that depends on 13 which way the facts are. 14 CHAIRMAN BABCOCK: Okay. 15 HONORABLE SARAH DUNCAN: So if you file a 16 petition and say "I say the facts are A" -- 17 CHAIRMAN BABCOCK: Right. 18 HONORABLE SARAH DUNCAN: -- "and, therefore, I 19 win"; and the other side comes in and says, "Oh, no, no, no. 20 The facts are B, and, therefore, Chip loses," we're not taking 21 that. 22 CHAIRMAN BABCOCK: Right. 23 HONORABLE SARAH DUNCAN: And that's -- it's only 24 a controlling question of law if the facts are relatively 25 undisputed. Anna Renken & Associates (512) 476-7474 11919 1 CHAIRMAN BABCOCK: Well, I withdraw my comments 2 then. I always thought in the Federal system, which has 3 similar language, that it had to be some, you know, kind of 4 almost like a split in the circuits type of thing. 5 PROFESSOR DORSANEO: Well, Chip, if anything, I 6 would bet that there's a split in the circuits on what a 7 controlling question of law is, like there is usually. 8 CHAIRMAN BABCOCK: Okay. Sorry. 9 PROFESSOR DORSANEO: But I think what you said 10 -- now I understand what you said, and I think you may well be 11 right, that our Legislature copied Federal language, which 12 might -- you know, might be interpretted narrowly as you have 13 done rather than broadly as Sarah has done. 14 CHAIRMAN BABCOCK: Justice Gray. 15 HONORABLE TOM GRAY: I deal sometimes on the 16 more mundane aspects of this, but I want to know what it is 17 that is being filed, and the reason I want to know what it is, 18 is because it controls two things that I've got to do, collect 19 a fee for the state. Do I collect $75 as a petition, another 20 $75 if it's granted like the Supreme Court does on petitions 21 for reviews? Is it an original proceeding that I only get one 22 $75, or is it a direct appeal where I get $125? 23 The next question that is also relevant to what 24 is it, is how do I have to rule? On an original proceeding, 25 when it's there I can enter an order that says "denied." Do I Anna Renken & Associates (512) 476-7474 11920 1 get to write on this one "affirmed" or "reversed" and leave it 2 there, or do I have to write a full blown opinion on the issue 3 granted? 4 PROFESSOR DORSANEO: I would say you charge 5 whatever fees you like 6 HONORABLE TOM GRAY: No. And there's actually 7 -- which leads to another question. 8 PROFESSOR DORSANEO: Or we have to change 9 whatever else fees. 10 HONORABLE TOM GRAY: Because Rule 12.1 requires 11 the clerk to collect the fee when the document is filed, and 12 you're giving them 10 days to do it, but that's a gnat. I 13 wasn't -- but anyway. 14 CHAIRMAN BABCOCK: Richard, then Sarah. 15 MR. ORSINGER: You know, we really have three 16 tread-ons we could follow. We could follow -- in terms of 17 what's filed. We could follow an ordinary appeal with 50-page 18 brief. We could follow the original proceeding where we attach 19 an appendix without a record, or we could follow the petition 20 for review process in the Supreme Court where we have something 21 more like a 15-page statement saying, "This is why we think you 22 ought to grant review, and if you do, we would like to have 50 23 pages worth of briefing because you're going to be handling it 24 like a real appeal." 25 Of those choices, actually, I would tend toward Anna Renken & Associates (512) 476-7474 11921 1 a petition process because you're soliciting the consent of the 2 court of appeals to give you the opportunity to present your 3 case on the merits, and we don't necessarily want to spend the 4 money and force the courts of appeals to read the 50-page brief 5 if they're not even really interested in it, so that doesn't 6 answer all your fundamental questions, but it seems to me like 7 maybe we ought to consider the petition for review paradigm. 8 PROFESSOR DORSANEO: That's really what this is. 9 MR. ORSINGER: Okay, and kind of mimic the 50, 10 only instead of having an official appellate record, because I 11 can tell you that the court clerk is going to have problems 12 meeting a 10-day deadline, why don't we allow them to do an 13 appendix like they do in mandamus where they can just attach 14 certified copies of orders and things and not have to fool 15 around with an official transcript 16 CHAIRMAN BABCOCK: Stephen. 17 MR. TIPPS: Well, the fourth paradigm is really 18 the Federal model, which is a petition to the court of appeals 19 asking the court of appeals to take the case, and I think 20 that's what Bill is proposing. 21 MR. ORSINGER: What does it look like? 22 PROFESSOR DORSANEO: It looks like petition for 23 review. 24 MR. TIPPS: It looks like what you have here. 25 It looks like petition for review. Anna Renken & Associates (512) 476-7474 11922 1 MR. ORSINGER: Is it 50 pages long and like a 2 brief and what have you? 3 MR. TIPPS: Well, I mean, I've filed one, and 4 the one I filed was simply a short argument that the parties 5 and the judge had agreed that this case presented a controlling 6 question of law, the resolution of which would facilitate a 7 disposition of the case; but, I mean, it seems to me that the 8 Legislature clearly was trying to follow the Federal model when 9 it enacted the statute; and for that reason the logical thing 10 for the Supreme Court to do in terms of rules promulgation is 11 what Bill is proposing, and that is promulgate a rule that 12 follows the analogous Federal rule. 13 MR. ORSINGER: If it's accepted do you file a 14 full brief after that -- 15 MR. TIPPS: Yeah. 16 MR. ORSINGER: -- or is your petition your 17 brief? 18 PROFESSOR DORSANEO: This is about permission, 19 not about the validity of the underlying order, although that's 20 reasonable -- 21 MR. TIPPS: And as far as the record is 22 concerned there is no need to file an appellate record until 23 the court of appeals has initially decided that this case is 24 worthy of its attention. 25 MR. ORSINGER: But can you file an appendix that Anna Renken & Associates (512) 476-7474 11923 1 contains the pleadings or motion for summary judgment or 2 whatever or not? 3 HONORABLE SARAH DUNCAN: You -- 4 MR. TIPPS: That would need to be addressed in 5 the rule, I suppose. 6 HONORABLE SARAH DUNCAN: My view has always 7 been, even before we had our appendix rule, you can always file 8 an appendix if you want to include copies of the -- a copy of 9 the contract. 10 CHAIRMAN BABCOCK: Harvey, did you have 11 something? 12 HONORABLE HARVEY BROWN: I was just going to say 13 that I agree with Stephen that this is modeled on the Federal 14 rule. In fact, I know because I was involved in drafting, for 15 better or worse, that came out of Houston. Craig Eiland I 16 think was the original sponsor, and the first draft was even 17 closer to the Federal rule than the final draft, so I think 18 Bill's rule is really good. 19 The only major concern I have is I do think that 20 the length of the petition is too short given the importance of 21 the court taking the briefs. I think that 15 pages like you 22 have in appellate court is a better idea. You may be able to 23 do it shorter, but I -- when it was drafted originally I was 24 concerned that some court of appeals might say, "Well, we don't 25 think it's important enough to really mess with," and I think Anna Renken & Associates (512) 476-7474 11924 1 the parties should have an opportunity to convince the court 2 that it really is important enough for them to take the time 3 CHAIRMAN BABCOCK: Mike Hatchell. 4 MR. HATCHELL: A couple of things, one of the 5 smallest ones being I know this is totally self-evident, but 6 there is nowhere in the draft rule that says where the petition 7 is filed, and I can assure you somebody is going to file it in 8 the trial court, or maybe that's where it's supposed to be 9 filed, but that's a small matter. 10 The issue of who goes first is in this instance 11 probably a little more complicated because, first of all, it's 12 got to have a title; and so are we just going to move the trial 13 court title up, which may not reflect the agreement. I would 14 suggest that the basic fundamental right to appeal has always 15 been assigned to the party aggrieved by a ruling or order. In 16 this instance it may well be both parties, but we also have 17 that in our traditional thing as well. 18 So I would suggest that somehow or another we 19 indicate that the same concept go forward, and it may well be a 20 good idea to in some way or another, perhaps by comment or 21 otherwise, permit the courts of appeals in granting this to 22 assign the right to file first brief or establish a briefing 23 order or something of that nature, because it can get a little 24 strange in terms of identifying who goes first. 25 PROFESSOR DORSANEO: To identify who the Anna Renken & Associates (512) 476-7474 11925 1 appellant is? 2 MR. HATCHELL: It could. I don't know. I mean, 3 I personally think that our standard rules will take care of 4 this or should take care of it, but I just hate to see us have 5 to go through, you know, gnashing our teeth and having some 6 opinions written about it. 7 CHAIRMAN BABCOCK: Ralph. 8 MR. DUGGINS: Well, Mike's point brings up a 9 question I had about subpart (6), which says, "states the court 10 of appeals to which the appeal is taken," and I didn't 11 understand how it works when it's in one of the two courts in 12 Houston. Could you explain how that's intended to work? 13 HONORABLE TOM GRAY: The two courts in Houston 14 by statute when they file a notice of appeal with the clerk, 15 they pick randomly out of pieces of paper. It's a statute. 16 MR. DUGGINS: I'm not sure this says that, 17 though. That's the reason I'm raising it. 18 HONORABLE TOM GRAY: I think your point's 19 well-taken. It also presents a problem in Northeast Texas 20 where you have overlapping counties still, and you may have two 21 aggrieved parties from one of these, and they may go to 22 separate court of appeals. 23 MR. DUGGINS: Maybe Mike's point is you've got 24 to specify that it's the district clerk and then the district 25 clerk will handle it from there. Anna Renken & Associates (512) 476-7474 11926 1 PROFESSOR DORSANEO: I think that language is 2 the same language -- and maybe it does need some modification 3 -- that's in the notice of appeal rule, but -- 4 CHAIRMAN BABCOCK: You mean you'd file a -- 5 you'd file a petition in the Dallas court of appeals that says, 6 "We want the Tyler court of appeals to consider this judgment 7 from Kaufman County"? I mean, that wouldn't make any sense to 8 me. Sarah. 9 HONORABLE SARAH DUNCAN: I think all of these 10 problems bring up -- refer back to what Mike just said, and it 11 was my problem with Bill's take on this in our subcommittee 12 meeting. If we try to incorporate into a new 25.2 every rule 13 that applies to an appeal right now, we're going to be here for 14 weeks. In my view, all this is is a motion requesting 15 permission to appeal. That's all it is. If that motion is 16 granted, it is an appeal like any other appeal, and I would 17 treat the motion or the petition for permission to appeal just 18 like anything else in the appellate rules. 19 I mean, I was shocked to discover that the 20 Dallas court of appeals in D.B. had denied -- had said there is 21 no extension of time to file a petition for permission to 22 appeal. That just goes against everything we've been doing, 23 the Supreme Court has been doing in civil cases for 15 years. 24 So and I still think our clerks are going to have terrible 25 trouble if we never have a notice of appeal, but that's another Anna Renken & Associates (512) 476-7474 11927 1 argument. 2 I just think we need to treat this as an appeal 3 just like any other appeal and say so in the rule, that they 4 are governed by the same rules that any other appeal is 5 governed by, and I'd say that from the moment the motion is 6 filed or the petition. 7 MR. ORSINGER: Can I ask why you prefer an 8 appeal to an original proceeding? 9 HONORABLE SARAH DUNCAN: It's not an original 10 proceeding. 11 MR. ORSINGER: It is an original proceeding. 12 HONORABLE SARAH DUNCAN: It's not. 13 MR. HATCHELL: No. 14 HONORABLE SARAH DUNCAN: It's not. 15 MR. HATCHELL: No way. 16 HONORABLE SARAH DUNCAN: It's not seeking to 17 compel or prohibit a trial court from taking particular action 18 CHAIRMAN BABCOCK: Stephen. 19 HONORABLE SARAH DUNCAN: It's simply reviewing 20 the correctness of the trial court's order, and that's an 21 appeal. It's not an original proceeding. 22 CHAIRMAN BABCOCK: Stephen Tipps. 23 MR. TIPPS: Well, I have two points. First, I 24 agree with Sarah that what we need -- what this statute calls 25 for is something instead of a notice of appeal that the party Anna Renken & Associates (512) 476-7474 11928 1 that wants to complain files with the court of appeals, and the 2 only difference is that unlike a notice of appeal in which you 3 have the right to have your case reviewed if you properly file 4 a notice of appeal, this petition is something that the court 5 of appeals has to affirmatively accept. So I think 6 conceptually that's what we're talking about. 7 And the other observation I'd make is to second 8 what Harvey said about length. According to my secretary, the 9 petition for review that I filed in the one of these that I've 10 done was eight pages long, and as I recall that didn't seem to 11 be too complicated an undertaking, so I think probably we would 12 be better off with like 15 pages rather than the 5 that Bill 13 proposes. 14 CHAIRMAN BABCOCK: Richard. 15 MR. MUNZINGER: I agree with what Justice Duncan 16 said, except I do think there could be some confusion at the 17 appellate level where you have, let's say, six parties to a 18 case, and all the parties agree that whatever order it was 19 ought to be appealed, and the order may cut more than one party 20 adversely. There ought to be something in the rule that allows 21 the appellate court to designate who is the appellant and set 22 the time limits and what have you for various briefs; 23 otherwise, it's going to be confusing as to who has the 24 obligation to file the first brief and go forward, but I agree 25 with the general idea that you ought to treat it like an appeal Anna Renken & Associates (512) 476-7474 11929 1 with the remainder of the rules. 2 CHAIRMAN BABCOCK: Justice Duncan. 3 HONORABLE SARAH DUNCAN: I don't think we -- 4 with all deference to Mike and Richard, I don't think we should 5 say "designate who files the petition for permission to 6 appeal." If I'm a plaintiff's lawyer and the judge has ruled 7 that a statute of limitations applies that's in my favor and 8 the defendant is unhappy about it, I ought to have the right to 9 get that decided immediately and not have to use my time and my 10 law firm's money to litigate that question; whereas, the 11 defendant might be just tickled pink to have the wrong answer, 12 because he knows he's going to get it reversed on appeal and by 13 then I'll be out of money. So I think anybody should be able 14 to file a petition for permission to appeal. 15 On the page length, if this is part of just the 16 TRAP rules, you always have the right to ask for additional 17 page limits, to ask to file additional pages. What I'm 18 concerned about is like in Stolte, we're going to have people 19 trying to use the statute, besides you and Harvey and Bill and 20 Mike, we're going to have people that have no business trying 21 to get an interlocutory appeal, but they think they do, and 22 they want it, and I would just like to tell those people, 23 "Nope, five pages, that's it." Now, Richard, if you come in 24 and ask to file 15 pages or 10 pages, I'm going to say "yes." 25 MR. MUNZINGER: Well, but my concern is, as I Anna Renken & Associates (512) 476-7474 11930 1 understand this rule, it requires the agreement of all parties 2 to even get to the court of appeals. It requires the trial 3 court to agree. In other words, without saying so the trial 4 judge must determine that this is an order which will 5 materially advance the ultimate termination of the case and 6 involves a question of law upon which there is not unanimity. 7 That's implicit in the statute. 8 The parties then must so promise the appellate 9 court and they must agree to that point and then they 10 themselves must agree among themselves that an appeal is 11 necessary. So, now, having done all these things, taking the 12 case where you have six parties or five parties and it may not 13 be a limitations point, it could be a discovery point, and the 14 discovery point can cut multiple ways. Products liability, 15 there's a parts supplier, this, that, and so forth. All I'm 16 saying is somehow or another give the appellate court the 17 authority to designate who's going to be the appellant and when 18 the brief is due and this and that and so forth so that you go 19 forward because right now it's nobody knows who's what. 20 HONORABLE SARAH DUNCAN: You mean before you 21 file a petition for permission to appeal? 22 MR. MUNZINGER: No. After the court of appeals 23 has said that. 24 HONORABLE SARAH DUNCAN: We could do it. It 25 would be just like a habeus corpus. We say, "Here's the Anna Renken & Associates (512) 476-7474 11931 1 briefing schedule," and we can say, you know, "Here is who is 2 going to file the first brief, here's when it's due, here's the 3 page limits" or whatever, but that's a step down the road. 4 MR. MUNZINGER: Well, I think that was Mike's 5 point that he was raising. 6 MR. HATCHELL: Well, yeah, but I think that -- 7 first of all, I think the parties can start that out. The 8 court has the power, and that's what I was referring to, to 9 make such an order. Richard, I don't think that the court 10 ought to have to try to sit down and sort out who gets to go 11 first and who has the burden. The petition has got to be by 12 somebody, doesn't it? 13 PROFESSOR DORSANEO: Yeah. 14 MR. HATCHELL: So that person is the petitioner, 15 and, theoretically, they have been aggrieved. They're the ones 16 who want it. If anybody else, I suppose, wants the right to 17 also file an opening brief and the right to close, they can 18 follow our two-track appeal or parallel appeal process we have 19 now of filing a parallel petition with the court, I suppose. 20 And then in that instance they could get together and they 21 could ask the court for a briefing schedule or the court could 22 impose one. We've had Dallas and other courts do that on a 23 regular basis. But I don't think the courts ought to be 24 required to do that. 25 HONORABLE SARAH DUNCAN: But what if the party Anna Renken & Associates (512) 476-7474 11932 1 aggrieved doesn't want an interlocutory appeal, so he doesn't 2 file anything within 10 days? Then what is now subsection (c) 3 never comes into play, so nobody else can file another 4 petition. 5 MR. ORSINGER: Well, it requires their agreement 6 anyway, doesn't it, so if they won't play ball, nobody is going 7 to be filing. 8 HONORABLE SARAH DUNCAN: It only requires an 9 agreement in trial court, and I can agree to all the orders in 10 the trial court all day long and still not file a petition for 11 permission to appeal. 12 MR. ORSINGER: Well -- 13 HONORABLE SARAH DUNCAN: I'm not saying that 14 would be terribly ethical, but I could do that. 15 MR. ORSINGER: The party who won in the trial 16 court might want to have the court of appeals confirm that 17 ruling before they decide to go all the way through a jury 18 trial. 19 HONORABLE SARAH DUNCAN: Right. That's my 20 point. 21 MR. HAMILTON: That's the whole point. It's 22 usually going to be the party who wins who's going to want it 23 affirmed by the court. 24 HONORABLE SARAH DUNCAN: Want it affirmed, but 25 not necessarily reviewed. Anna Renken & Associates (512) 476-7474 11933 1 PROFESSOR DORSANEO: Well, let me respond first 2 to Mike's first point. There should be an additional sentence 3 that says it's filed in the court of appeals, and there is such 4 a sentence in the Federal rule. 5 MR. HATCHELL: Yeah. 6 PROFESSOR DORSANEO: I just seem to be becoming 7 more and more imperfect as time passes, and I didn't put it in 8 there. I didn't call the person who files the petition the 9 petitioner in the latest draft. It is in some of the earlier 10 drafts because I thought that person would be the same person 11 who would be the appellant, but after your comment I see that 12 may not be so. So I would change the person's name to 13 "petitioner" until we get down to the point where the appellant 14 is identified. 15 Third comment, if we use -- I'm not sure I was 16 following what you were actually suggesting, Sarah, but if we 17 use the notice of appeal mechanism in this context and don't 18 start this process in some other way, you start a whole bunch 19 of other things happening, like the record getting -- having to 20 be requested, the record getting prepared, the record getting 21 filed, even the briefs being written even before we would have 22 permission granted to appeal. 23 So I think there's more engineering if you don't 24 do it like this than if you do it the way you're suggesting. I 25 may be wrong. Anna Renken & Associates (512) 476-7474 11934 1 HONORABLE SARAH DUNCAN: I'm not saying that the 2 notice of appeal gets filed and starts the process. I'm saying 3 when permission for appeal is granted a notice of appeal should 4 be filed. I mean, what I would probably do -- 5 PROFESSOR DORSANEO: Why? 6 HONORABLE SARAH DUNCAN: -- is attach a notice 7 of appeal to my petition for permission to appeal so it would 8 be ready to file when the court grants it. I talked to some of 9 the people at the court. You know, teaching people new things 10 is very difficult, and teaching deputy clerks around the state 11 of Texas to start the appellate procedure when an order is 12 signed granting permission to appeal is going to be very 13 difficult. 14 It's going to be very difficult for our staff 15 attorneys to understand that, you know, this isn't an appeal up 16 to the point an order is signed, but now all of the sudden it's 17 an appeal because what they're trained to do is notice of 18 appeal and civil docketing statement, that's an appeal, or 19 criminal docket, whatever docketing statement; and that's my 20 concern, is that it needs to be something other than us signing 21 one more order that turns this into an appeal. So I would say 22 attach a notice of appeal to the petition. When the court 23 signs the order granting permission to appeal it orders that 24 notice of appeal filed. 25 MR. HAMILTON: In the trial court? Anna Renken & Associates (512) 476-7474 11935 1 HONORABLE SARAH DUNCAN: A copy to the trial 2 court. 3 CHAIRMAN BABCOCK: Yeah, Harvey. 4 HONORABLE HARVEY BROWN: Or on page three we 5 could just say "a notice of appeal shall be filed" and then the 6 notice is filed within so many days after the court order. I 7 mean, if you're trying to get a notice of appeal in there, it 8 seems like you're really not appealing until you get 9 permission, so if you filed, you know, within a short time 10 after the court gives permission and that way the clerks know 11 what to look for and that way we know who the appellant is. 12 PROFESSOR DORSANEO: I can do it that way. 13 HONORABLE HARVEY BROWN: So it's not required 14 notice, but it's required within a certain number of days after 15 the order 16 PROFESSOR DORSANEO: I can do it that way. 17 That's not hard. 18 CHAIRMAN BABCOCK: Yeah, Bonnie. 19 MS. WOLBRUECK: I had made myself a couple of 20 notes, and one of my concerns was how soon I would receive that 21 the order was signed, and I was looking in here about the 22 appellate court notifying the trial court and if that's going 23 to be done or immediately be done so that I can trigger that 24 10-day period for preparation of the record, and I don't know 25 if the person, the petitioner, then notifies the clerk, and I Anna Renken & Associates (512) 476-7474 11936 1 think that's what I've interpretted in this, if that's the way 2 it was written, but the notice of appeal would certainly be 3 much more helpful 4 CHAIRMAN BABCOCK: Yeah, Elaine. 5 PROFESSOR CARLSON: Bill, on top of page two in 6 what you have delineated as (b), petition for permission to 7 appeal. 8 PROFESSOR DORSANEO: Yeah, should be (a). 9 PROFESSOR CARLSON: Yeah, I understand. Fourth 10 line down you refer to the date the district court signs a 11 written order. 12 PROFESSOR DORSANEO: Uh-huh. 13 PROFESSOR CARLSON: And I can't remember, it's 14 been a while since I looked at the statute. Does the statute 15 limit the discretionary appeal from a district court? 16 PROFESSOR DORSANEO: Yes. When they were 17 copying it from the Federal statute they copied the Federal 18 trial court system. District courts only. 19 MR. LOW: Bill, can I ask you a question? I 20 mean, we have a procedure right now at the Supreme Court that 21 you can file with the Supreme Court for petition for review, 22 and it's permissive, just like the Court may take it, just like 23 this. How is that so different, and why wouldn't the same 24 procedure work if you petition the court of appeals for review? 25 I mean, and then they either -- the contents of the petition Anna Renken & Associates (512) 476-7474 11937 1 and all that. Why couldn't you treat it just like you 2 petitioned the Court, the Supreme Court, for review and use the 3 same terminology? 4 It's not by right and they can deny it or do 5 what they want to. Why do we follow the Federal rule when 6 we've got a similar thing here, and the Supreme Court knows how 7 to handle it. They do it. The court of appeals would know how 8 to handle it. Why don't we do the same thing here? I mean, I 9 know that's a stupid question, but maybe that's my question. 10 PROFESSOR DORSANEO: Well, I did not go look at 11 the petition for review rule to copy things, but I bet if I 12 did, it would look pretty similar to this. 13 MR. LOW: It says, "The Supreme Court may review 14 a court of appeals final judgment" and so forth and that, I 15 mean, that thing has been followed hundreds of times and most 16 everybody understands that. 17 CHAIRMAN BABCOCK: Justice Bland. 18 HONORABLE JANE BLAND: I suggest under what's 19 now (b), permission for petition to appeal, we say, "To request 20 permission to appeal an interlocutory order that is not 21 otherwise appealable as of right, a party" and then I would 22 insert "who seeks to alter the trial court's judgment or 23 order," tracking the language of what we require for a party 24 filing a notice of appeal, "must file a petition for permission 25 to appeal with the clerk of the appropriate appellate court," Anna Renken & Associates (512) 476-7474 11938 1 which tracks Rule 52's requirement for original proceedings 2 since I think we contemplate that this would be presented to 3 the appellate court, and then continue on, "not later than the 4 10th day after the date a district court signs a written 5 order." 6 I realize that there may be slightly different 7 motives for seeking appellate review of the trial court's 8 order, depending on whether or not you want to uphold the trial 9 court's judgment or not, but since the rule -- I mean, since 10 the statute requires that the parties agree to pursue the 11 appeal, it would seem like the burden should be placed on the 12 party who seeks to alter the trial court's judgment or order to 13 pursue and obtain an appellate court ruling granting the 14 permission for them to appeal, and that would apply to a party 15 who sought to alter the trial court's order in any manner so 16 that, you know, if both sides wanted to alter the trial court's 17 order, both sides could seek permission to appeal. 18 That would be my proposal that we would insert 19 those two clauses to clarify who files the petition and where 20 it should be filed. 21 PROFESSOR DORSANEO: Done. It's already done. 22 HONORABLE SARAH DUNCAN: Well, then you have a 23 minority report from your cochair. 24 PROFESSOR DORSANEO: Maybe it will be undone 25 then. Anna Renken & Associates (512) 476-7474 11939 1 CHAIRMAN BABCOCK: Ralph, and then Richard. 2 MR. DUGGINS: I'm still unclear where you file 3 the application. The statute says in (f) "the application is 4 made to the court of appeals that has appellate jurisdiction 5 over the action," so I'm not clear where you file it in Houston 6 or in -- I guess you've got East Texas there are a couple of 7 counties that are overlapping. I just think we need -- I want 8 to be clear about what we do in those two circumstances. 9 CHAIRMAN BABCOCK: Stephen. 10 MR. TIPPS: In Houston, I think by statute, if 11 not by statute, by rule, if it's during the first six months of 12 the year you physically file it in the first court, and if it's 13 in the second six months of the year, you physically file it in 14 the 14th Court, but it then gets randomly assigned because 15 those courts have concurrent jurisdiction over appeals from 16 that 13-county area, so I think that's sort of in place. 17 PROFESSOR DORSANEO: And there are a number of 18 other places where there is overlapping jurisdiction, but that 19 same procedure hasn't yet been implemented there. It's been 20 talked about, but other than that -- 21 HONORABLE TOM GRAY: And whoever gets to the 22 courthouse first, whether they want to go to Dallas, Tyler, or 23 Texarkana, gets to do it under Miles vs. Ford, and so if two 24 parties are aggrieved by this you're going to have the race to 25 the courthouse in those overlapping counties. Anna Renken & Associates (512) 476-7474 11940 1 CHAIRMAN BABCOCK: Richard. 2 MR. ORSINGER: I'm a little concerned about 3 Judge Bland's suggestion that by rule we limit who can seek the 4 relief when the statute doesn't. Now, that may, in fact, be 5 what we do with the case on the merits. I'm not sure that the 6 statute requires that you be the aggrieved party to seek it, 7 but I know there's no logic in it if you win in the trial 8 court, but here I can tell you that in my practice this 9 probably will get used a lot if we ever figure out how to do it 10 and people who are on the upside of the court's ruling are just 11 as nervous about the court ruling as the people on the bottom 12 side of it are dissatisfied with it. And I know that 13 everything is more or less consensual anyway and so you can 14 probably agree -- two consensual persons, you can agree to do 15 it at all, but I would hate by rule to restrict the 16 availability and the remedy that the Legislature didn't 17 restrict. 18 PROFESSOR DORSANEO: But if you can file -- if 19 you can just file something right on the back heels of it, a 20 response or another petition, what difference does it make? 21 MR. ORSINGER: Well, because if the -- if you 22 can only file the petition if you want to change the ruling and 23 everybody has agreed to take it up, but -- 24 PROFESSOR DORSANEO: I see. 25 MR. ORSINGER: -- the other side doesn't file it Anna Renken & Associates (512) 476-7474 11941 1 within 10 days, then you can't utilize this remedy that the 2 Legislature made availabe and you've already agreed on and the 3 court approved, trial court approved. 4 PROFESSOR DORSANEO: That's a very good answer. 5 HONORABLE SARAH DUNCAN: Strategy. 6 MR. JEFFERSON: Doesn't the term "appeal" just 7 suggest that you're complaining about what the trial court did? 8 MR. ORSINGER: Well, but, you know, the function 9 of this is not to reverse the trial court. The function of 10 this is to find out whether the trial court's ruling is 11 reliable or not because if this is a partial summary judgement, 12 you're going to be trying the rest of your case to the jury on 13 an erroneous legal theory. It's in everybody's interest to 14 figure that out before you try the case. 15 MR. JEFFERSON: I'm with you there, but it just 16 seems to me the statute does seem to imply that an appeal is 17 going to be taken, not to confirm what the trial court did, but 18 to contest what the trial court did. 19 MR. ORSINGER: Well, maybe so, but I promise you 20 that once the lawyers figure it out it's going to be used. I 21 mean, the only reason that the winner in the trial court would 22 even go along with this is because they want to learn 23 themselves and send a message to the other side that their 24 appeal is no good, or they want to know that themselves before 25 they invest a hundred thousand dollars in a jury trial that may Anna Renken & Associates (512) 476-7474 11942 1 get reversed on a legal point that could have been resolved 2 before you ever picked a jury. 3 MR. JEFFERSON: I agree with you on those 4 chords, and that's why even the prevailing party would agree to 5 go along with this, because they need some certainty so that 6 they know where they stand on things, but it does seem to me 7 that, you know, the fact that it's an appeal suggests that the 8 person complaining, as Judge Bland suggested, would 9 appropriately be the petitioner. 10 CHAIRMAN BABCOCK: Bill, what do we want to do? 11 Do we want to do some more drafting or -- 12 PROFESSOR DORSANEO: Well, somebody needs to 13 tell me about Judge Bland's point. I think the second part 14 about where it's filed, there's no controversy there, but do we 15 need to have the same standard as for notice of appeal in the 16 petition if we're going to use petition, or are we going to 17 just let anybody file the petition who was a party in the trial 18 court if we get consent? I need an answer to that question. I 19 can draft it without the answer, and you can vote on it next 20 time. I need an answer -- 21 CHAIRMAN BABCOCK: Let's go one question at a 22 time. You need to know whether anybody can petition, even a 23 winner can petition. 24 PROFESSOR DORSANEO: Yeah. 25 CHAIRMAN BABCOCK: Okay. How does everybody Anna Renken & Associates (512) 476-7474 11943 1 feel about that? 2 MR. HAMILTON: Yes. 3 HONORABLE SARAH DUNCAN: No. 4 CHAIRMAN BABCOCK: Okay. There's one "no" vote. 5 How many people think "yes"? 6 HONORABLE TRACY CHRISTOPHER: It's an appeal. 7 CHAIRMAN BABCOCK: How many people think "yes"? 8 HONORABLE HARVEY BROWN: I don't think we heard 9 the question. 10 CHAIRMAN BABCOCK: All right. The question is 11 how many people think, yes, anybody can appeal even if you've 12 won in the court below? Raise your hand. 13 MR. BOYD: Anybody can seek application to 14 appeal? 15 CHAIRMAN BABCOCK: Seek application, right. 16 Seek permission to appeal. Levi? 17 Okay. How many people think "no" on that? 14 18 yes, 11 no, the Chair not voting, so I guess that gives the 19 Court some sense, and then for drafting purposes you draft it 20 for everybody. 21 PROFESSOR DORSANEO: Draft it either way? Let 22 us discuss it again? You want to talk about it again next 23 time? We're going to talk about it again next time anyway I 24 bet. 25 MR. HAMILTON: It's already drafted that way, Anna Renken & Associates (512) 476-7474 11944 1 Bill. 2 PROFESSOR DORSANEO: Okay. The next thing I 3 need to know is about alternative (7). Should I copy the Texas 4 statute's specific language about the reasons for granting 5 permission or should I model this on the Federal rule? I would 6 recommend copying the Texas statute myself 7 CHAIRMAN BABCOCK: Let's be sure we know what 8 we're voting on. I have on page two of your memo under, as 9 renumbered, (b)(7), some language that says, "State concisely 10 the issues or points presented, the facts necessary to 11 understand the issues or points presented, the reasons why the 12 appeal is authorized and should be allowed, and the relief 13 sought." What are we calling that? 14 PROFESSOR DORSANEO: That's first alternative 15 (7). 16 CHAIRMAN BABCOCK: Okay. Let's call that first 17 alternative (7). 18 PROFESSOR DORSANEO: The Federal model 19 CHAIRMAN BABCOCK: Federal model. 20 PROFESSOR DORSANEO: And then if you turn two 21 pages forward, if you have the right memo you'll see an 22 alternative (7). 23 CHAIRMAN BABCOCK: "State concisely the issues 24 of points presented, the facts necessary to understand the 25 issues or points presented, the reasons why the order Anna Renken & Associates (512) 476-7474 11945 1 complained of involves a controlling questions of law" -- 2 PROFESSOR DORSANEO: Take the "s" out. It's 3 clear to me that my secretary who has been doing all this work 4 so well for a great many years had a bad day since she's been 5 largely responsible for better work on other days. 6 CHAIRMAN BABCOCK: "A controlling question of 7 law as to which there is substantial ground for difference of 8 opinion, why an immediate appeal may materially advance the 9 ultimate termination of the litigation, and the relief sought." 10 What are we calling that? 11 PROFESSOR DORSANEO: That's the current court of 12 appeals interpretation of what the courts of appeals need to do 13 in order to grant permission under 51.014. 14 HONORABLE TRACY CHRISTOPHER: Well, I thought 15 you said that tracked the statutory language? 16 PROFESSOR DORSANEO: It does. 17 MR. TIPPS: That, too. 18 PROFESSOR DORSANEO: Well, it doesn't quite. 19 All right. Let me just ask -- let me ask people to think -- to 20 go read the statute and look at that (d)(1). 21 CHAIRMAN BABCOCK: We're just giving you 22 direction. We're just labeling right now. 23 PROFESSOR DORSANEO: Well, you're not -- okay. 24 CHAIRMAN BABCOCK: So the first one we're going 25 to call the first alternative, Federal model, and the second Anna Renken & Associates (512) 476-7474 11946 1 one we're going to call current Texas court of appeals. 2 PROFESSOR DORSANEO: Yeah. Is that fair, Sarah? 3 HONORABLE SARAH DUNCAN: What's the current 4 Texas court of appeals? 5 PROFESSOR DORSANEO: Is this what your opinion 6 says? 7 HONORABLE SARAH DUNCAN: No. 8 PROFESSOR DORSANEO: Yeah, it is. I just copied 9 it right out. 10 CHAIRMAN BABCOCK: All right. Let's call the 11 second one the Cubs then. All right. Everybody that's in 12 favor of the first alternative, raise your hand. 13 MS. SWEENEY: Oooh. 14 CHAIRMAN BABCOCK: Everybody in favor of the 15 Cubs. On acclamation the Cubs win. 16 MR. TIPPS: That's a hard vote for Houstonians 17 to cast. 18 CHAIRMAN BABCOCK: That may be the only thing 19 the Cubs win this year. All right. What's the next thing you 20 need to know? 21 PROFESSOR DORSANEO: How many pages. 22 CHAIRMAN BABCOCK: And the alternatives are 5 or 23 15. 24 MR. SCHENKKAN: Split the difference, 10, and 25 let's all go home. Anna Renken & Associates (512) 476-7474 11947 1 MR. JEFFERSON: 10. 2 MS. SWEENEY: 15. 3 CHAIRMAN BABCOCK: All right. Everybody for 4 five raise your hand. 5 Everybody for 10? All right. 10 wins. What 6 else do you need to know? 7 MS. SWEENEY: A minority vote for 15 here 8 CHAIRMAN BABCOCK: All right. 15 is down there. 9 HONORABLE LEVI BENTON: If we're going to 10 regulate the page limit, can we also deal with the font size? 11 PROFESSOR DORSANEO: No. I left that. The font 12 size will be the normal font size under the pertinent rule, 13 which will be applicable to this. 14 CHAIRMAN BABCOCK: What else do you need to 15 know? 16 PROFESSOR DORSANEO: I need to know whether 17 we're going to do a notice of appeal, Justice Duncan's 18 approach, or whether we're going to explain what happens in 19 this (e), labeled (f). I probably need to say something about 20 briefs if we're going to do the latter. 21 CHAIRMAN BABCOCK: Okay. Wait a second. The 22 Duncan approach is one alternative. What's that? 23 PROFESSOR DORSANEO: That is when we get 24 permission we file a notice of appeal and keep going in 25 accordance with the rules Anna Renken & Associates (512) 476-7474 11948 1 CHAIRMAN BABCOCK: All right. That's the Duncan 2 approach, and the other approach is -- 3 PROFESSOR DORSANEO: You don't have to file a 4 notice of appeal ever, but we have to explain how we get back 5 on track. 6 CHAIRMAN BABCOCK: Okay. That's on page three 7 of your memo, what is now labeled (e), used to be labeled (f). 8 PROFESSOR DORSANEO: Yes. 9 CHAIRMAN BABCOCK: Okay. 10 PROFESSOR DORSANEO: And I think it's not quite 11 done yet because of briefing issues. It should say something 12 about the briefs. 13 CHAIRMAN BABCOCK: Everybody in favor of the 14 Duncan approach. 15 PROFESSOR CARLSON: Can I ask a question? 16 CHAIRMAN BABCOCK: Sure. 17 PROFESSOR CARLSON: So is the petition for 18 permission to appeal under the second alternative the 19 jurisdictional implication? 20 PROFESSOR DORSANEO: Well, that's why I don't 21 like doing it the other way. I don't know -- I don't -- 22 PROFESSOR CARLSON: I don't either. 23 PROFESSOR DORSANEO: I can make this work, but 24 I'm not sure that the other thing will work. It probably will. 25 It's going to be harder to stick in here. Anna Renken & Associates (512) 476-7474 11949 1 PROFESSOR CARLSON: And that's your concern, 2 we've got competing jurisdictional schemes 3 PROFESSOR DORSANEO: Part of it, yeah. 4 CHAIRMAN BABCOCK: Okay. 5 HONORABLE SARAH DUNCAN: I don't understand that 6 explanation. 7 PROFESSOR DORSANEO: I didn't give you a very 8 good explanation because I didn't try to do it that way, and to 9 try to fit this into the rulebook requires a consideration of a 10 whole bunch of things that aren't immediately on the front of 11 my mind, so I have to look over all of the details of it and 12 see if there are any problems created. I don't think that 13 there will be 14 MR. ORSINGER: Bill, let me ask this question. 15 Is there a docketing statement that's required if the court 16 signs an order permitting the appeal to go forward? 17 HONORABLE SARAH DUNCAN: That's part of the 18 problem. 19 MR. ORSINGER: I mean, let's just ask ourselves 20 that question. Is the court of appeals going to be able to 21 function without a docketing statement? 22 HONORABLE SARAH DUNCAN: We functioned without 23 docketing statements in the courts for decades. 24 MR. ORSINGER: But you don't function anymore 25 without docketing statements. Anna Renken & Associates (512) 476-7474 11950 1 HONORABLE SARAH DUNCAN: But my concern is that 2 what the docketing statement has enabled is that a deputy clerk 3 can sit there with one document and enter everything that needs 4 to be entered into case management, and if all of the sudden 5 there's an order here and a petition here, plus or minus an 6 appendix, it's going to get like it used to be. 7 MR. ORSINGER: But, you know, Sarah, I would 8 prefer that instead of attaching a conditional notice of appeal 9 that we just say that the court will permit you to file a 10 notice of appeal and then you file one rather than attaching a 11 conditional one that's attributed -- the effective date is the 12 day the order is signed, but you don't find that until four 13 days, so your first four days are gone. I mean, it would be 14 cleaner if we're going to require an appellate notice that the 15 court says, "We're giving you permission to file a notice of 16 appeal" and then go file it in the trial court like everybody 17 else's 18 HONORABLE SARAH DUNCAN: That's fine 19 MR. ORSINGER: Just copy the court of appeals 20 like everybody else's -- 21 CHAIRMAN BABCOCK: Let's see what everybody else 22 thinks. 23 HONORABLE TOM GRAY: If I could add one 24 procedural thing that's going to happen there which actually 25 mechanically works very well, is when that notice of appeal Anna Renken & Associates (512) 476-7474 11951 1 hits the trial court and then the court -- excuse me -- hits 2 the trial court and then the court of appeals, it's going to 3 get a new docket number than the original permission granted, 4 just mechanically it's going to happen, and I personally think 5 that's a good thing, so because then everything is triggered 6 from that date of that notice of appeal in the normal 7 fashion -- 8 CHAIRMAN BABCOCK: Right. 9 HONORABLE TOM GRAY: Briefing, records, 10 everything rolls from that 11 MR. ORSINGER: And the timetable under our 12 accelerated appeal rule is going to be invoked, though. 13 HONORABLE TOM GRAY: No, regular appeal. 14 CHAIRMAN BABCOCK: So who's in favor of the 15 Duncan approach? 16 HONORABLE HARVEY BROWN: Are you proposing 17 Richard's modification there? 18 CHAIRMAN BABCOCK: We're talking about in a 19 general philosophical sense. 20 HONORABLE TRACY CHRISTOPHER: Having a real 21 notice of appeal? 22 CHAIRMAN BABCOCK: Yeah. 23 HONORABLE TRACY CHRISTOPHER: Okay. 24 CHAIRMAN BABCOCK: Duncan approach got Duncan's 25 vote. Anna Renken & Associates (512) 476-7474 11952 1 HONORABLE NATHAN HECHT: Two more over here. 2 CHAIRMAN BABCOCK: Wait a minute. Let me go 3 again 4 All right. The Dorsaneo approach? 5 PROFESSOR DORSANEO: Well, I'm not sure that 6 that's my approach. I guess I'll vote for my own approach. 7 CHAIRMAN BABCOCK: Okay. So by an overwhelming 8 vote of 18 to 2 the Duncan approach prevails. What else do you 9 need to know? 10 MR. ORSINGER: Well, we need to resolve the 11 question. I see this as an accelerated appeal under that rule. 12 Justice Gray sees it as an ordinary appeal with ordinary 13 deadlines, so I think we probably need to decide whether we're 14 invoking the accelerated appeal rule or the ordinary appeal. 15 HONORABLE SARAH DUNCAN: Please don't make 16 another -- I can't get below the black line on my docket. 17 Everything above the black line is accelerated appeal or 18 original proceeding, and everything below the black line are 19 regular appeals. I can't get to regular appeals anymore. 20 MR. ORSINGER: But you understand you have a 21 trial court proceeding -- just like an otherwise accelerated 22 appeal, you have a trial court proceeding that's waiting for 23 you-all to get to it, and you're going to treat it like it's a 24 final judgment, and in some courts you're going to get an oral 25 argument a year after they -- Anna Renken & Associates (512) 476-7474 11953 1 HONORABLE TOM GRAY: They better think about 2 that when they agree to one of these. 3 MR. ORSINGER: But you don't have to accept it 4 unless you want to do the work. 5 PROFESSOR CARLSON: Bill, does the statute say 6 anything about that? 7 PROFESSOR DORSANEO: Well, how much time do you 8 want to file the notice of appeal? Do you want to file it in 9 10 days? 10 HONORABLE SARAH DUNCAN: Yeah, that's fine. 11 PROFESSOR DORSANEO: And then the rest of it, 12 whether it's an accelerated appeal or an ordinary appeal, 13 mostly just kind of depends on what the court of appeals wants 14 to do, but the record has to get there faster. Probably the 15 record time is extended in accelerated appeals 16 CHAIRMAN BABCOCK: Okay. We're doing good, 17 Bill. What else do you need to know in order to come back to 18 us with a rule? 19 PROFESSOR DORSANEO: Well, I need to know about 20 all the other problems in the appellate rules that have been 21 created by this 18 to 2 vote, but we'll find out about that 22 later, so nothing. 23 CHAIRMAN BABCOCK: Judge Bland. 24 HONORABLE JANE BLAND: One of the reasons I was 25 in favor of the way that it's written now is because when you Anna Renken & Associates (512) 476-7474 11954 1 go back and you file a notice of appeal in the trial court, if 2 it does get another docketing number it could go to a different 3 court of appeals than the court of appeals that gave the 4 permission to appeal. So why are we putting this burden on the 5 parties to have to go file -- go back to the trial court, file 6 another piece of paper. Why can't the order just serve as the 7 notice? 8 And as far as the clerks being able to determine 9 it, all they have to do is look at the date of the order to 10 determine all the other deadlines. The only thing that's 11 jurisdictional is the notice or, in this case, the order. So 12 the parties can get additional time to file briefs. Their 13 appeal won't be dismissed without them getting notice. If 14 we're going to say that in addition to this a notice of appeal 15 can be filed, my concern is that that paper, that notice of 16 appeal is what becomes the jurisdictional document that you get 17 to perfect your appeal with, and we invite all of the problems 18 that, you know, often occur with filing a notice of appeal, 19 like the D.B. case and all these other cases; whereas, we've 20 already got, you know, a request for appellate relief on file 21 and apparently the court of appeals has said, "We want to take 22 it." Why would you need to go back and do some more stuff down 23 at the trial court? Why can't we just proceed at pace? 24 HONORABLE DAVID GAULTNEY: I agree with that. 25 In fact, there were three votes in favor of that, because I Anna Renken & Associates (512) 476-7474 11955 1 think the proposal is that the petition include everything that 2 the notice would have, but Rule 12.1 be modified to include the 3 petition as the initiating docketing instrument and that once 4 the order is entered your time line starts to run from that. I 5 don't think -- I think the filing of the notice is just going 6 to be an unnecessary additional duplication, and I think it 7 will be a competition as to whether or not it invokes the 8 jurisdiction or what invokes the jurisdiction, and then a final 9 comment while I've got the floor -- 10 PROFESSOR DORSANEO: Clearly one of my best 11 students. 12 HONORABLE DAVID GAULTNEY: Since this is an 13 interlocutory appeal, you know, I'm sympathetic to the fact 14 that we have all these accelerated appeals, particularly since 15 we don't transfer out accelerated appeals, we get to keep all 16 of them, but I think this has to be treated like an accelerated 17 appeal. You've got a case that's getting ready to -- or trying 18 to go to trial, the parties are trying to figure out what the 19 ruling is. 20 CHAIRMAN BABCOCK: Okay. Carl. 21 MR. HAMILTON: Is this the kind of appeal that 22 stops everything in the trial court, or can the trial court 23 continue with other matters pending the outcome of this appeal? 24 PROFESSOR CARLSON: Or rescind the order. 25 MR. BOYD: The statute addresses that Anna Renken & Associates (512) 476-7474 11956 1 MR. DUGGINS: It does as to some of the orders, 2 but not as to all. 3 MR. HAMILTON: Huh? 4 MR. DUGGINS: It does as to -- it wouldn't under 5 this section. There's a provision of the statute that says it 6 does. 7 MR. BOYD: The statute says -- 8 PROFESSOR DORSANEO: The statute addresses that. 9 MR. DUGGINS: Pardon? 10 PROFESSOR DORSANEO: There is an -- "An 11 immediate appeal" -- "an appeal under subsection (d) does not 12 stay the proceedings unless the parties agree in the district 13 court or the court of appeals or the judge of the court of 14 appeals orders a stay of the proceedings." So anybody can stay 15 the proceedings. 16 MR. ORSINGER: No, actually it takes everybody. 17 CHAIRMAN BABCOCK: Justice Gray. 18 HONORABLE TOM GRAY: I have to say that Justice 19 Bland raised the issue, and I agree with her on the notice of 20 appeal issue triggering a different proceeding. I had thought 21 about it in the context of my own court where it's a three 22 judge court, same judges are going to hear it. There's not 23 going to be any chance of it going to a different panel. The 24 way to handle it and do both things would require, as you had 25 originally suggested, I think, Bill, with having a notice of Anna Renken & Associates (512) 476-7474 11957 1 appeal -- or maybe you did, but have a notice of appeal 2 attached to the motion or the petition and as part of the 3 agreement to accept it order the notice of appeal filed, and 4 one of the requirements of the petition then would be that the 5 notice of appeal be attached to it when the order got filed 6 CHAIRMAN BABCOCK: Justice Duncan. 7 HONORABLE SARAH DUNCAN: I agree. 8 CHAIRMAN BABCOCK: Oh. Yeah, Buddy. 9 MR. LOW: Carl asked a question about what would 10 happen to the trial court's power and so forth. Wouldn't Rule 11 29.5 on the court may do all these things, he can set aside and 12 ordinary things -- is that not going to apply? Wouldn't this 13 be considered under the same scope as an interlocutory appeal 14 or not? 15 CHAIRMAN BABCOCK: 29? 16 MR. LOW: Yeah, 29.5. When an appeal is 17 interlocutory it extends the trial court's same jurisdiction 18 and all that. 19 PROFESSOR DORSANEO: We've got a proposal to 20 change that rule, too. 21 MR. LOW: Okay. But -- all right. Then I 22 wasn't aware of that, but I'm going to say we've been calling 23 it that, and somebody asked the question, and that's already 24 answered by the rule, unless you change the name of what we do 25 it, not an interlocutory appeal. And I don't know how you can Anna Renken & Associates (512) 476-7474 11958 1 call it anything but an interlocutory appeal. 2 CHAIRMAN BABCOCK: Okay. Well, Bill? 3 PROFESSOR DORSANEO: Well, I'll draft it both 4 ways. I think people will change their mind back to having no 5 notice of appeal. I don't know what else to do other than to 6 draft it both ways at this point 7 CHAIRMAN BABCOCK: Is that okay with you, Sarah, 8 having overwhelmingly won the vote? 9 HONORABLE SARAH DUNCAN: Sure. You may convince 10 me. And we're just going to add a sentence. 11 CHAIRMAN BABCOCK: What about Buddy's question? 12 MR. LOW: I'm not giving an answer, but I don't 13 know, but all I'm saying is that somebody raised the question, 14 Carl did, of the power of the trial court; and if we considered 15 this an interlocutory appeal and we still have 29.5 then the 16 trial court can do all of these things; and if that's what we 17 want, that's fine; but if it's not -- 18 PROFESSOR DORSANEO: Well, our committee's 19 recommendation is to just basically -- 20 MR. LOW: Say that it doesn't -- 29.5 doesn't 21 apply or what? 22 PROFESSOR DORSANEO: Well, you'll see. It's on 23 the bottom of page two of the second appendix, but I personally 24 think that 51.014 has done so much to all of these issues that 25 it would be unprofitable to try to track the statute in 29.5; Anna Renken & Associates (512) 476-7474 11959 1 and, you know, whenever the statute, you know, deals with this 2 question it seems to deal with it in a detailed and complicated 3 way. 4 Now, granted, there are other appeals from 5 interlocutory orders under different statutes that don't have 6 all these special requirements, but I took the heart out of 7 29.5 for the most part in this draft. 8 MR. LOW: Okay. As long as it's clear that 9 somebody doesn't argue what you're saying and somebody else 10 says, "No, 29.5 applies because it's interlocutory appeal," and 11 say, "Wait a minute. There's a conflict." I just raise the 12 question. 13 CHAIRMAN BABCOCK: Bill, what else? 14 PROFESSOR DORSANEO: I don't have anything on 15 that other thing, but I've got other rules. You want to go 16 through those? 17 CHAIRMAN BABCOCK: What's everybody's 18 preference? We've been going for a while. Do you want to take 19 a short break or do you want to slog right through and quit at 20 a quarter till 5:00? 21 MS. SWEENEY: Slog on 22 CHAIRMAN BABCOCK: Slog through? 23 MR. LOW: Yeah. 24 CHAIRMAN BABCOCK: Okay. Keep going, Bill. 25 PROFESSOR DORSANEO: Well, I think I'm going to Anna Renken & Associates (512) 476-7474 11960 1 -- because of the importance of the issue and with your 2 permission, go to Rule 28. I'll mention, the 12.1 we've 3 already talked about. You can look at attachment B. Rule 4 26.1, that's self-explanatory as to what was suggested there. 5 Rule 28 I think is -- an issue is whether we ought to add to 6 the accelerated appeals rule another subsection dealing 7 principally with termination of parental rights cases, but the 8 more I read these statutes I think the matter is more 9 complicated than that. 10 Right now in the Family Code, there are -- there 11 is a chapter and a section in Chapter 109 that treats 12 termination of parental rights orders or appeals in a suit in 13 which termination of the parental rights -- parent-child 14 relationship is an issue as accelerated appeals. Now, the 15 statutes -- and I didn't bring 109.002, but it's quoted in the 16 memo at the beginning. It basically says an appeal -- it 17 basically says what I copied into the draft proposed rule 18 change. "An appeal in a suit in which termination of 19 parent-child relationship is in issue shall be given precedence 20 over other civil cases and shall be accelerated by the 21 appellate courts." 22 And then another sentence to kind of explain 23 what the first sentence means, "The procedures for an 24 accelerated appeal under the Texas Rules of Civil Procedure 25 apply to an appeal in which the termination of the parent-child Anna Renken & Associates (512) 476-7474 11961 1 relationship is at issue." Now, the procedures for an 2 accelerated appeal in the current -- in our rulebook are not 3 numerous, okay, but the one key point is that you have 20 days 4 in terms of a timetable under Rule 26; and by reading the 5 remainder of the rules, motion for new trial doesn't have any 6 effect. So it's 20 days, and that's what Justice Gaultney was 7 explaining at the last meeting either on the record or off the 8 record, is that people are not used to the idea that final 9 orders are subject to accelerated appeal timetables and that 10 that is causing a lot of trouble. 11 Now, it's slightly more complicated than that 12 because in another chapter of the Family Code, which deals with 13 other orders, and I think maybe other orders beyond what my 14 draft talks about that you have a similar statement, but these 15 are cases where we have the Department of Protective and 16 Regulatory Services, which is sometimes called other things, 17 appointed as the managing conservator without terminating 18 parental rights. That's accelerated appeals, and I guess under 19 that Chapter 263 some of those other orders under Chapter 263 20 might be accelerated appeals, too, when you read 263.405 21 together with 263.401. 22 So the key question is -- I think the key points 23 are, one, should we put a special section in the rulebook 24 dealing with these particular kinds of now accelerated by 25 statute appeals in order to keep people from screwing up; and Anna Renken & Associates (512) 476-7474 11962 1 then the second point would be how do we do that in a way that 2 is faithful to the statutes; and I don't think I have 3 completely performed that latter task yet. I at least want to 4 go back and look at Chapter 263 from beginning to end. My 5 current belief is that you have to look at 401 in order to 6 understand what 405 really covers. I think I can figure this 7 out. Maybe Richard can help me since he's our designated 8 family law expert occasionally. 9 So the first issue I think we're ready to deal 10 with. The second one probably has to wait till more drafting. 11 CHAIRMAN BABCOCK: Okay. Any comments on the 12 first issue? Skip. 13 MR. WATSON: What do you propose to fix it, 14 Bill? That's what escapes me. 15 PROFESSOR DORSANEO: I propose to copy language 16 from at least 109.002 into the procedural rulebook under a 17 heading "termination of parental rights." So if somebody 18 doesn't read the statute because they're thinking under normal 19 accelerated appeal logic that that's only for interlocutory 20 orders and not final orders, they won't commit malpractice 21 basically. 22 MR. WATSON: I've done that. I've been in those 23 and cut people off on that. Your proposal makes it sound like 24 that the statute which says it should be treated as any other 25 accelerated appeal might not be effective if we don't amend the Anna Renken & Associates (512) 476-7474 11963 1 rule to say, "Lookout, this statute is out there," and there's 2 always going to be a gap there, but before the time comes up 3 when we get the rule amended when the Legislature meets and 4 adds another statute to this list of accelerated appeals by 5 statute. 6 PROFESSOR DORSANEO: Well, they may do that. 7 They may add -- what the Legislature is doing in classes of 8 cases, they're changing the the time for perfecting the appeal 9 not by cross-referencing the accelerated appeal rules but just 10 by putting a date down. 11 MR. WATSON: Right. 12 PROFESSOR DORSANEO: Now, my proposed change to 13 26.1 is intended to give notice that you better be wary of 14 that, but I'm not sure that they're going to be doing, you 15 know, "This is governed by accelerated appeal." It doesn't 16 seem to be their style of making them go faster. It doesn't 17 really make them go much faster anyway. 18 MR. WATSON: Couldn't this be the kind of thing 19 where we just drop a comment down or something and, you know, 20 that puts the "Watch out, gotcha"? 21 PROFESSOR DORSANEO: My view was that -- you 22 know, I read all of the cases that are printed in hard copy, 23 and there are a lot of these cases, a lot of termination of 24 parental rights cases. I mean, there are three or four every 25 advance sheet, I think, and I think this is a real problem. If Anna Renken & Associates (512) 476-7474 11964 1 I thought it was just some technical oddball thing, you know, 2 something about election contests or something like that, I 3 might -- where people are more likely to be aware of the 4 specific requirements, I might be less concerned about it, but 5 I think this is a big problem 6 CHAIRMAN BABCOCK: Justice Hecht. 7 HONORABLE NATHAN HECHT: I agree it's a problem, 8 and I agree it's going to be a bigger problem as the 9 Legislature keeps putting different deadlines on that, on the 10 time for appeal. One way -- you might think more than one way 11 to deal with it is by changing Rule 26.3 to make the giving of 12 extensions of time for filing the notice of appeal under 13 different conditions or more leniently. It now says you can 14 get an extension if within 15 days you file the notice. Well, 15 that would take care of the parental notification cases because 16 nobody thinks they've got 35 days to file it. Everybody thinks 17 they've got to do it -- 18 PROFESSOR CARLSON: What if they file a motion 19 for new trial? 20 HONORABLE NATHAN HECHT: Well, you might have 21 to -- one way to do it might be to tinker with that. I'm just 22 worried that there are going to be so many different variations 23 on this theme that the only way you're ever going to be able to 24 deal with it is by giving people -- cutting them some slack, 25 because the notice of appeal time does not speed the case up Anna Renken & Associates (512) 476-7474 11965 1 appreciably 2 CHAIRMAN BABCOCK: Justice Gaultney. 3 HONORABLE DAVID GAULTNEY: I think giving 4 extension of time would help in some instances, but for some 5 reason -- and I read a lot of these cases, too. It seems to me 6 the problem may have been the recent amendment of the Family 7 Code or whatever; but you're seeing a lot of instances or 8 several instances in which termination I guess is viewed as a 9 final judgment, a final order; and these statutes provide that 10 these are final orders, these are final judgments; and so you 11 get motions for new trial filed and the notice is not filed 12 till, you know, substantially later and beyond the time where a 13 motion for extension of time could help usually. So my only 14 feeling on this was that perhaps in this instance, given -- 15 really, given the importance of the issue, that we could 16 actually point it out in the rule. 17 CHAIRMAN BABCOCK: Yeah, Elaine. 18 PROFESSOR CARLSON: Justice Gaultney, is the 19 source that a motion for new trial does not extend the time to 20 perfect the accelerated appeal of a termination ruling, is that 21 a matter of the Family Code or is that a matter of our 22 appellate rules? 23 HONORABLE DAVID GAULTNEY: I think it's a matter 24 of perhaps both. As I recall, first of all, the accelerated 25 appeal is not going to do it, and the statute says the Anna Renken & Associates (512) 476-7474 11966 1 accelerated rules are going to apply. Also, I believe in one 2 of the statutes, I'm not sure which one, I think it's the one 3 dealing with the Department of Protective and Regulatory 4 Services -- 5 PROFESSOR DORSANEO: 263.045. 6 HONORABLE DAVID GAULTNEY: It does say, as I 7 recall, that motion for new trial will not extend time, as I 8 recall. 9 PROFESSOR CARLSON: Thank you. 10 CHAIRMAN BABCOCK: Yeah, Richard. 11 MR. ORSINGER: Even if we don't have a whole 12 separate subpart for termination cases I think we ought to at 13 least change appellate Rule 26 to have a separate line item to 14 say that these termination cases you have to give your notice 15 of appeal within 20 days. Right now it just says it's within 16 30 days unless you fit in one of the following categories, and 17 (b) is in an accelerated appeal, and apparently the people who 18 are handling these appeals who are typically not appellate 19 lawyers or they may even be appointed lawyers who are mostly 20 trial lawyers, and this might be the first appeal they've ever 21 done. I don't know that they're snapping onto that, and at the 22 very least we ought to say, "In a termination case governed by 23 Chapter so-and-so of the Family Code," so at least the deadline 24 -- when they go look for deadlines they will see it. 25 To me we ought to agree to do that, whether we Anna Renken & Associates (512) 476-7474 11967 1 agree to have a whole subpart on all the rest of it, because I 2 think a lot of these, I'm hearing from the staff attorneys on 3 the various courts of appeals a lot of them they're dismissing 4 for want of jurisdiction. 5 MR. WATSON: Oh, yeah, they are. 6 MR. ORSINGER: And that's the worst -- I mean, 7 we're talking about a constitutional right here. Heck, three 8 members of our Supreme Court want to find fundamental error to 9 reach issues that are not preserved. What's more fundamental 10 than the right to appeal at all? So I would say regardless of 11 how we feel about the larger issue of what Bill has said, at 12 the very least we ought to give everybody a clear heads-up that 13 their appellate deadlines are -- their perfection deadline is 14 20 days. 15 CHAIRMAN BABCOCK: Skip. 16 MR. WATSON: The big problem is -- the little 17 bit I've seen of it, and I'm not trivializing what's happening. 18 It is a big deal, and it's one that we need to find a way to 19 fix. It's a matter of how. My experience has been it's the 20 fact that the rules on the accelerated appeals say that the 21 time that filing the motion for new trial or to alter or amend, 22 you know, the judgment do not affect the time for filing the 23 notice of appeal. 24 That's the one that's killing them, and so we 25 need to deal with it somehow in both places, and that's -- in Anna Renken & Associates (512) 476-7474 11968 1 my trying to think through what Bill was trying to do, you 2 know, I was coming up with, okay, do we put it in both rules 3 that this isn't going to affect it or do we just drop a comment 4 down or do we put it in the accelerated appeal one and then put 5 a comment down in the motion for new trial? I don't know which 6 is the best way to do it, but the one that's killing people is 7 that they think that they just filed a motion for new trial 8 after the final judgment ordering the termination, and by that 9 time the 15 days to request a late-filed notice of appeal is 10 long gone. It's all over. 11 PROFESSOR DORSANEO: After hearing what people 12 have to say, I think that all of this stuff is not greatly 13 drafted. The cross-reference in the statutes looks like it's 14 trying to be a cross-reference to 28.1, which is about 15 interlocutory orders. So it's really just, I guess, the second 16 two sentences that the Legislature means to have applicable to 17 termination orders that are final orders, but that's to a 18 certain extent guesswork because they must have had something 19 in mind. That's probably it. 20 Quo warranto, in quo warranto, filing a motion 21 for new trial will not extend the time to perfect the appeal 22 either, but then there's a big "but" and some other stuff. 23 Maybe it would be good to have a separate section about effect 24 a motion for new trial, huh? Before record and briefs. 25 MR. WATSON: Bill, I think that's as important Anna Renken & Associates (512) 476-7474 11969 1 as the first thing you're talking about. I really do. 2 MR. ORSINGER: Really what Skip is saying is 3 that since this is a final judgment they're looking at Rule 4 329b. 5 MR. WATSON: Correct. 6 MR. ORSINGER: And so what we ought to do to 7 really get the signal to the people where they read it is to 8 either put a comment or a subdivision in 329b saying that the 9 filing of a motion for new trial will not extend the time for 10 perfecting an appeal in the following cases: Accelerated 11 appeals under Rule 20a, you know, termination cases under 12 Family Code section so-and-so. That's where -- if Skip is 13 right and they're blowing it because it's a final judgment and 14 they're filing a motion for new trial, that's where we need to 15 say it. 16 PROFESSOR DORSANEO: Well, you know, I thought 17 for years we ought to take that appellate stuff out of 329b 18 myself, but -- 19 MR. WATSON: That's the reason I said comment, 20 Bill. 21 MR. LOW: But, Richard, if we put one in there 22 like that then we've got to include every other thing like 23 that, because if we overlook one or one is put in we don't know 24 about it, then it's misleading. So if you name one, it's like 25 you've got to be sure and name them all, and, you know, that's Anna Renken & Associates (512) 476-7474 11970 1 fine if we can do that. 2 MR. YELENOSKY: There's one in here you 3 mentioned, mental health commitments. That's a 10-day 4 appeal -- 5 PROFESSOR DORSANEO: Yes. 6 MR. YELENOSKY: -- and the judgment can be 7 commitment for a year to the mental hospital, 10 days to appeal 8 that. 9 PROFESSOR DORSANEO: Well, I tried to deal with 10 that in the comment; and I understand there's another one in 11 the Elections Code that has five days, from a footnote in D.B.; 12 and I don't know if there are many more of these animals out 13 there; but the 329b problem, I think that does need to be -- 14 does need to be fixed, but I think there may be other things 15 that need to be done to 329b. That appellate language is in 16 there, it's in there from before appellate rules really. 17 CHAIRMAN BABCOCK: Justice Duncan. 18 HONORABLE SARAH DUNCAN: That's my problem, is 19 while I recognize the constitutional dimension of termination 20 cases, whomever is appealing, their case is important. It may 21 be just as important to them as a termination case, and I'm not 22 in favor of doing it for one, and I've been in favor for ten 23 years of having a comment that collects all the cases and that 24 the Supreme Court knows we've got to go through this comment 25 every legislative session and see if anything else has been Anna Renken & Associates (512) 476-7474 11971 1 added to it by statute. 2 CHAIRMAN BABCOCK: Anybody else got any 3 comments? Bill. 4 MR. LOW: If you're going to put a comment, you 5 might just put there are orders that appear to be final that 6 may, you know, be governed by that and then the statutes must 7 be referred to that involve it or something like that, but 8 don't name one, I mean, and if people don't know what statutes 9 affect it then, you know, I don't know. 10 PROFESSOR DORSANEO: Well, you could -- I mean, 11 it's easy to put comments to Rule 26. Then you go why is quo 12 warranto over here singled out to have a special paragraph? I 13 mean, that really seems like a thing that will never happen. 14 MR. LOW: It really is, but -- 15 HONORABLE SARAH DUNCAN: It's a whole different 16 type of proceeding. 17 PROFESSOR DORSANEO: But it's accelerated 18 primarily because of the statute, isn't it? 19 HONORABLE SARAH DUNCAN: I don't think so. I 20 think it's -- 21 MR. LOW: By putting it there, maybe that's what 22 misled all these other people. They don't see the other 23 things, so maybe that's causing a problem. 24 PROFESSOR DORSANEO: You could either change 28 25 or change 26 or both. You either -- the way the Legislature Anna Renken & Associates (512) 476-7474 11972 1 has speeded things up, sometimes they said, "This is governed 2 by the rules for accelerated appeals," and I agree with Justice 3 Gaultney that they probably do mean no motion for new trial to 4 extend anything, no necessity to make findings of fact, but you 5 can if you want. On other occasions they just say, "Well, you 6 just have to file a notice of appeal within 10 days" or 7 something shorter, picking their own new, shorter timetable. 8 My plan or suggestion was to deal with those 9 different approaches in different rules, to deal with the 10 shortened timetable in 26.1 by adding a (d) that said, you 11 know, like Hillstreet Blues, you know, "Be careful out there 12 because you might be on a faster track than you think you're 13 on" and give some notice in the comment, which presumably we 14 could write at least once to be reasonably comprehensive and 15 not be able to correct it every time. 16 You know, what it takes me -- I do remedial work 17 on my own stuff when statutes come out. It usually takes me 18 two sessions, right, to get things straight. You know, you get 19 them straight, but then by the time you get everything down it 20 takes another two years or another year before you catch up, 21 and I think that's happened to a lot of people in a lot of 22 different contexts. 23 CHAIRMAN BABCOCK: Okay. Is the sense of our 24 committee, full committee, that 28.3 with the comment is a 25 worthwhile thing to have? Is there any dissent from that? Anna Renken & Associates (512) 476-7474 11973 1 Okay. Is there any specific language that we don't like in the 2 rule that Bill has drafted? 3 PROFESSOR DORSANEO: I have a question of 4 whether you -- how closely you want me to track it. Do I need 5 to put in the precedence language, which really doesn't do 6 anything other than encourage the court of appeals to give this 7 special attention but doesn't mandate any particular time. My 8 thought would be that that language, although it's in the 9 statute, maybe is not necessary and -- 10 CHAIRMAN BABCOCK: Well, this is just an 11 advisory rule, really. 12 PROFESSOR DORSANEO: Huh? 13 CHAIRMAN BABCOCK: Isn't this just really an 14 advisory rule that "Hey, watch out"? 15 PROFESSOR DORSANEO: Well, no, it's an advisory 16 -- the statute is some advisory to the court of appeals and 17 then some you have your -- it will be 20 days and other 18 procedures will apply, and that's what's creating the problem, 19 and these are mandatory appeal perfection requirements. 20 CHAIRMAN BABCOCK: Justice Hecht. 21 HONORABLE NATHAN HECHT: But I assume that the 22 purpose of the Legislature in choking times and making 23 accelerated appeal rules applicable is to speed things up, and 24 that's a legitimate concern, but you -- I doubt their concern 25 is or I doubt that their goal is that people can take strategic Anna Renken & Associates (512) 476-7474 11974 1 advantage of this and lie behind the log, particularly repeat 2 litigants like -- I'm not criticizing DPRS, but they do these 3 cases all the time, so they know the rules and they can sit 4 there and wait until the time has run and then say, "Well, 5 King's X. You blew it." 6 And maybe some consideration should be given to 7 saying that the same procedures apply, and if somebody wants to 8 pursue -- if somebody wants to speed it up, they should 9 complain about that. They should say, "Don't wait for the 10 motion for new trial to be ruled on." They should call it to 11 the court's or the appellate court's attention in some way so 12 that if a person is not gunning fast enough because he just 13 doesn't know any better, then this would call it to their 14 attention; and if he's not going fast enough because he's 15 dragging his feet, then it would force the mechanism to go 16 faster. 17 But there ought to be some way to take out the 18 "gotcha" part of it where it never happens. And other than 19 just, you know, abject incompetence and bad faith, but I 20 wouldn't -- I'm worried about just trying to marginalize it and 21 saying, "Well, we'll make a note here and then it's going to 22 only happen to the people who can't read the rule"; but, you 23 know, a lot of those people are not going to think to read this 24 rule about that. They're not even going to look at the 25 comment, and I wonder if we shouldn't look -- at least consider Anna Renken & Associates (512) 476-7474 11975 1 a more aggressive mechanism that says, "Yes, if you want things 2 to move along quickly, all you have to do is say so and by law 3 they will move quickly," but if nobody says anything, we're 4 just going to chug along by the ordinary rules and nobody is 5 getting hurt because that's the best anybody wants. 6 And I'm not sure whether the Legislature has by 7 referencing the accelerated rule, accelerated appeals rules, 8 intended to incorporate those procedures as they stand into the 9 statute or whether they mean for the rules process to make sure 10 that these are accelerated in the appropriate way, if you see 11 the difference. In other words, they can say, "Apply the rules 12 that you usually use for accelerated appeals," but then if we 13 go back in and change those rules then arguably we've changed 14 the status that they were trying to incorporate in the statute, 15 but I doubt they were trying to do that. I imagine what they 16 were trying to do instead was to say this thing should go fast, 17 and it's up to you to figure out how to make it go fast. 18 MR. LOW: Are you suggesting that, in other 19 words, it's an accelerated appeal, but unless somebody files 20 notice that they are going to take advantage of that, that it's 21 not invoked and then you would go under the other? 22 HONORABLE NATHAN HECHT: Right. 23 MR. LOW: In other words, propose a little -- 24 the Legislature said, and that's what it is. You've got it, 25 but you don't have to take advantage of everything you've got. Anna Renken & Associates (512) 476-7474 11976 1 So in order to take advantage of it, you've got to file a 2 notice. 3 HONORABLE NATHAN HECHT: For example, we get 4 petitions all the time where for one reason or another the 5 parties aren't interested in moving it along, but there's a 6 statute that says you will stop everything else you're doing 7 and rule on this before you quit work that day, literally. I 8 mean, it just says "Stop and rule on it," but the parties 9 haven't called it to anybody's attention. Well, maybe it's 10 because they're trying to settle or maybe it's because, you 11 know, they want something -- waiting for something else to 12 happen, so there may be reasons, because usually if somebody is 13 in a big tooth they come in and say, "We need to know by day 14 after tomorrow and we're entitled to know that because we've 15 got a statute here that tells us that we get that." 16 So I wonder whether this automatic stuff that's 17 hidden in the rules and is made worse by accelerated appeals 18 from final judgments shouldn't have to be invoked, somebody 19 ought not to have to come up and say, "Look, we're putting this 20 on a fast track. Now you know. It better be done by this 21 deadline." 22 CHAIRMAN BABCOCK: You think you do that by 23 rule? 24 HONORABLE NATHAN HECHT: Yeah. 25 MR. LOW: Because under the Government Code, if Anna Renken & Associates (512) 476-7474 11977 1 we say to the extent this may be inconsistent, if we pass 2 something like that and it is inconsistent and under the 3 Government Code that trumps over, you know, the Legislature, 4 I've forgotten what section. I don't think it's inconsistent, 5 but if the Legislature does, we have to give them notice we've 6 done that, and then once we do that, they don't like that, they 7 can do something about it. I don't think they would, and to 8 that extent it wouldn't be a conflict, so we can do it, don't 9 you think? 10 CHAIRMAN BABCOCK: Stephen. 11 MR. YELENOSKY: Well, if we can do it by rules, 12 it seems only to make sense because surely the Legislature 13 didn't intend to create a "gotcha" for parents who have just 14 lost their parental rights or the person who has just been 15 committed. They intended to give that person an opportunity to 16 more quickly potentially reverse that decision. So it should 17 be a situation where the lawyer knowingly can move quickly, and 18 if the lawyer doesn't move quickly because he or she doesn't 19 know, perhaps their client has a malpractice claim that they 20 didn't do it more quickly, but they don't have a claim they 21 lost their opportunity to get the kids back. They just have a 22 problem that it was too slow 23 CHAIRMAN BABCOCK: Skip. 24 MR. WATSON: I want to be clear on what Justice 25 Hecht is thinking about. Everything Steve said I'm sure is Anna Renken & Associates (512) 476-7474 11978 1 absolutely correct. I also think in the point about the kids 2 that it's not just for the parents. It's for the kids to find 3 out as quickly as possible who mama and papa are and not be in 4 limbo. 5 Now, if that's the case and the statute says you 6 are going to use the rules on accelerated appeals and there's 7 no way to finesse that, then it sounds to me like what perhaps 8 you're suggesting is to say you go into the accelerated appeals 9 rules and make them an opt in/opt out type of thing where you 10 invoke the accelerated appeal for it to happen, otherwise I 11 don't see how you line up with the statute that says these 12 rules shall apply. 13 HONORABLE NATHAN HECHT: No. What I'm saying is 14 the Legislature is doing one of two things. When it says, 15 "Treat this as an accelerated appeal," whatever that means, 16 then as the rules stand now that means 1, 2, 3, 4, 5; and so 17 they either mean by that reference 1, 2, 3, 4, 5, or they mean 18 treat this as an accelerated appeal, whatever that may come to 19 mean from time to time, which may be 1, 2, 3, 4, 5, 6, or we 20 may take 3 out, so that it's not a static thing. 21 And because they're trying to lift this process 22 out of the rules to fit different kinds of litigation, it may 23 be necessary to adjust those procedures in response to that, 24 and I'm not sure that that's contrary to the legislative 25 purpose. So I'm not saying you could opt in or opt out. Anna Renken & Associates (512) 476-7474 11979 1 You've got no choice. But unless somebody complains, we're 2 going to go -- we're going to assume that everybody wants to go 3 by the normal process; and surely there's an ad litem in a 4 parental termination case, and you have the parents, and you 5 have the department; and so everybody has got a seat at the 6 table; and if somebody wants to go faster, all they have to do 7 is say, "Go faster" and they would be entitled to that. But 8 until somebody said that, you wouldn't lose you're rights by 9 filing a motion for new trial. Maybe the other side wishes 10 that a new trial would be granted and doesn't mind waiting to 11 see what the judge wants to do 12 PROFESSOR DORSANEO: The problem is you can't go 13 faster after you've already not gone fast enough. 14 HONORABLE NATHAN HECHT: Well, you have to say 15 from that point forward 16 PROFESSOR DORSANEO: I would like to draft it 17 like that, because, frankly, despite the language in these 18 statutes when we had this discussion, I think based on your 19 interpretation of legislative intent you could just simply say 20 that you can do it this way or you can do it the other way 21 unless somebody complains, and I won't call it optional because 22 that would be the wrong thing to call it, but I'll draft it 23 like that. 24 HONORABLE SARAH DUNCAN: Well, I have a 25 question. Are you saying that if a statute gives a party five Anna Renken & Associates (512) 476-7474 11980 1 days to perfect an appeal that we can somehow write the 2 interlocutory appeals rules to obviate that? 3 HONORABLE NATHAN HECHT: Well, we've already got 4 in the accelerated appeals rules that you can file for an 5 extension of time within a certain period of time under certain 6 conditions. 7 MR. ORSINGER: But you set that at 90 days. 8 HONORABLE NATHAN HECHT: I think if the 9 Legislature says five days, no bounty, if they go through in 10 detail and say, "We want it like this and there's no two ways 11 about it" then I don't know there's anything you can do about 12 that. But I think if they just incorporated the accelerated 13 appeals rule and say, "This should be treated as an accelerated 14 appeal" then they're leaving it up to the rules to say what 15 those procedures were. So if we came in and said, "Well, we 16 think -- it's always been 15 days to file a motion for 17 extension, but we've thought about it some more and now we 18 think it should be 20 or 10," that the statute, having been 19 passed while it was 15, doesn't keep us from changing it 20 CHAIRMAN BABCOCK: Well, Bill, do you think you 21 can take a run at that languagewise? 22 PROFESSOR DORSANEO: Yes. But I -- yes, I do 23 CHAIRMAN BABCOCK: Okay. Well, listen, we've 24 absolutely worn out our court reporter. Sorry about that. 25 THE REPORTER: That's okay. Anna Renken & Associates (512) 476-7474 11981 1 CHAIRMAN BABCOCK: One order of business before 2 we adjourn, I've had several people come up to me and volunteer 3 for the special subcommittee on the electronic filing, and I've 4 also thought that it was important to maybe have a couple of 5 either court of appeals judge or at least a former district 6 judge. So I thought Orsinger, since he's already Chair and he 7 volunteered, could continue as Chair, and Lamont Jefferson can 8 be vice-chair, and Andy Harwell and David Jackson and Bonnie 9 Wolbrueck and Justice Bland and Carlos Lopez, and anybody else 10 who wants to join that group just let me know. 11 There will also be a couple of ex officio 12 members, Peter Vogel, who is Chair of the committee; and, Lisa, 13 you told me somebody else. 14 MS. HOBBS: Maybe Margaret Bennett. 15 CHAIRMAN BABCOCK: Mary Margaret Bennett? 16 MS. HOBBS: Margaret Bennett. 17 CHAIRMAN BABCOCK: Margaret Bennett. If you'll 18 take into account those people and give Richard the 19 information, and so hopefully you-all can report to us on that 20 at our next meeting, and Justice Hecht. 21 HONORABLE NATHAN HECHT: Did we talk about 22 destruction of court records? 23 CHAIRMAN BABCOCK: We haven't talked about that 24 HONORABLE NATHAN HECHT: Can I just take two 25 minutes? Anna Renken & Associates (512) 476-7474 11982 1 CHAIRMAN BABCOCK: Sure, yeah. 2 HONORABLE NATHAN HECHT: And say back in the 3 late Nineties we had a task force to consider when and under 4 what conditions the trial courts could destroy records, 5 everything they've got, which is court filed pleadings and 6 things like that, discovery, when sometimes it was filed and 7 sometimes it went over the years, and exhibits that were maybe 8 used at trial or offered in motion for summary judgement or 9 whatever. 10 The committee reported back that we ought to be 11 pretty free in allowing the clerks to do that if they want to, 12 and Judge Mark Davidson filed a dissent, and there was some 13 concern on the Court that we might be moving too fast here and 14 we might be destroying a bunch of stuff that we shouldn't be 15 throwing away, so we didn't do anything. And now time has 16 passed us by, and it is possible for the clerk -- for some of 17 the clerks at least to digitally image the court file itself, 18 the pleadings and orders and that sort of thing. It's possible 19 for them to do everything except for the exhibits, but they 20 don't want to go to the trouble of doing discovery, and there's 21 nothing left to do about exhibits. 22 So, anyway, the problem has now reduced itself 23 somewhat, at least in major cases, and the Harris County 24 District Clerk, Charles Bacarisse, has proposed a little 25 different document destruction and exhibit destruction policy Anna Renken & Associates (512) 476-7474 11983 1 that perhaps the clerks would give notice and it would be 2 printed in the Bar Journal that if the lawyers don't come get 3 their exhibits within a certain amount of time they're going to 4 be destroyed, except a judge could stop it if it was a historic 5 file or some other reason like that. 6 But, anyway, we need to get that back on track 7 because while the clerks are doing what they can to try to 8 minimize the storage expense of records, this is still a 9 problem. So back here on the back shelf before you leave, 10 please, are some proposals in that regard, and we'll want to 11 get feedback on that at the next meeting. 12 CHAIRMAN BABCOCK: Great. All right. We'll do 13 it. 14 Well, if there's nothing else, we'll be 15 adjourned; and thanks, everybody, for coming; and there's no 16 meeting tomorrowing as we've previously told everybody. 17 (Meeting adjourned at 4:49 p.m.) 18 19 20 21 22 23 24 25 Anna Renken & Associates (512) 476-7474 11984 1 * * * * * * * * * * * * * * * * * * * * 2 CERTIFICATION OF THE MEETING OF THE SUPREME COURT ADVISORY COMMITTEE 3 4 * * * * * * * * * * * * * * * * * * * * 5 6 7 I, D'LOIS L. JONES, Certified Shorthand 8 Reporter, State of Texas, hereby certify that I reported the 9 above meeting of the Supreme Court Advisory Committee on the 10 13th day of August, 2004, and the same was thereafter reduced 11 to computer transcription by me. 12 I further certify that the costs for my services 13 in the matter are $______________. 14 Charged to: Jackson Walker, L.L.P. 15 Given under my hand and seal of office on this 16 the _________ day of _________________, 2004. 17 18 ANNA RENKEN & ASSOCIATES Firm Registration No. 299 19 610 West Lynn Austin, Texas 78703 20 (512)476-7474 21 ________________________ 22 D'LOIS L. JONES, CSR Certification No. 4546 23 Certificate Expires 12/31/2004 24 #005,258DJ 25 Anna Renken & Associates (512) 476-7474