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Opinion: Permanent Virtual Court in Texas Is Win for Justice

Proponents are hopeful that after yet another extension earlier this month of the pandemic-era rule that expanded its use, virtual proceedings will find a more permanent place in the courtroom.

(TNS) — The pandemic-era move to virtual courtrooms wasn't always seamless. Between the lawyer who couldn't turn off a cat face filter and defendants who couldn't manage to keep their clothes on, every judge has a story. And Brian Warren, a Harris County criminal district court judge who won a second term last week, has heard them all.

Overwhelmingly, though, Warren said the ability to conduct some court proceedings virtually has introduced a new efficiency to his courtroom. And he's hopeful that after yet another extension earlier this month of the pandemic-era rule that expanded its use, virtual proceedings will find a more permanent place in the courtroom.

Fortunately, things seem to be headed in that direction. The Texas Supreme Court preliminarily approved a new rule in October that preserves pandemic-era opportunities for virtual proceedings for some courtrooms and that is now open for comments. On the nonprofit side, legal aid group Texas Legal Services Center is working to place up to 300 virtual access kiosks across the state to help participants who may still face barriers logging in from home.

The switch to virtual early in the pandemic was more disruptive for some courts than others. It wasn't until March 2021 when the state allowed in-person hearings to proceed without a state safety review. Certain high-stakes proceedings for jailable criminal offenses, Warren explained, often had to happen in person and so they were just put on pause initially, contributing to a backlog of cases.

But under the difficult circumstances, virtual hearings seemed to have gone well for those making the change and kept courts from a total standstill.

"We pivoted pretty quickly," Ed Wells, court manager for Harris County Courts with the Office of Court Management, explained. "Within I think it was the third day after the real restrictions from the pandemic were put in place in the spring of 2020, we had Zoom rooms set up for each of our county courts and justice courts and just a few days after that had a livestream set up."

Over time, the state renewed its emergency orders and courts increasingly moved to hybrid options. The Office of Court Administration provided best practices and guidelines. Today, Warren works from his court, but for many of the more administrative proceedings, he allows participants to attend virtually.

At the start of the month, the state again renewed its emergency order but Warren and others are hopeful that the possibility of virtual court becomes a more permanent part of the legal system.

"We have this wonderful technology that has a lot of benefits and we need to figure out a way to use it as a judiciary to make our lives easier and more efficient," Warren told the editorial board.

While many elements move more smoothly, a 2021 study from the National Center for State Courts that looked at data and focus groups from eight Texas counties found that virtual court tended to extend the overall length of hearings. Importantly, however, the report noted that "proceedings take longer because they increase access to justice, as litigants can more easily attend and participate in hearings."

Criminal courts can present unique challenges in the hybrid-era. "I usually don't have defendants on Zoom," Warren explained. "I use it mainly for lawyers and that makes it run a little more efficiently." Otherwise, things can get crowded and complicated. "It's very hard to kind of navigate it all, people get stuck in waiting rooms." Plus, making sure defendants facing criminal charges understand the gravity of the case and can ask questions is easier in person, Warren said.

Still, Warren said, making it easier for lawyers to log on, handle a quick update on discovery, and then move on to their next appearance cuts down on the uncounted in-between time.

Getting to court is a bigger challenge than some might realize. Though Warren said he takes the bench "almost religiously" at 9 a.m., he often has to delay his in-person docket work for more than an hour because it is so difficult to even get in the building, up the elevators — even with two new ones — and to his courtroom.

Not only can the hybrid proceedings speed some things up, they can also make a major difference for defendants who may have struggled to make it to court otherwise.

A recent study of Harris County eviction proceedings, for example, estimated that some 900 residents annually could have avoided eviction rulings if they had been more easily able to get to court. The analysis, published by the University of Pennsylvania's Institute for Law and Economics, considered the role of long commute times on a tenant's ability to get to court.

"That is something that we hear from judge after judge is the transportation issue," Megan LaVoie, the executive director of the Texas Judicial Council, told the editorial board.

It's not just an issue in sprawling Harris County but also for rural courts that serve multiple counties. And it isn't just a concern in eviction court, where not appearing can result in a default judgement.

"Throughout the pandemic we did see appearance rates go up," LaVoie said, especially in certain case types, including child protection and child support. In sensitive cases, where one party might feel uncomfortable being physically close to another, virtual options can offer some relief.

"The courts are built for all of us to participate in and receive justice," Karen Miller, executive director for the Texas Legal Services Center, told the editorial board. But if the hurdles, primarily for poor people to take off work, to find transportation, or to secure childcare, for example, prevent them from even attending, the system isn't working.

"The easier that we can make it for people to be able to access the courtroom and participate in the legal proceedings that affect their lives, I think that's our responsibility." Miller said.

The current emergency order allows courts to "require or allow remote hearings, depositions, or other proceedings and to consider sworn statements made out of court or sworn testimony given remotely." It extends through the end of the year.

But more permanent options are on the horizon, including a rule, preliminarily approved and open to public comment, from the state for district, county courts and justice courts.

Meanwhile nonprofit efforts look to build out critical infrastructure.

The Texas Legal Services Center's kiosk effort is just getting started, thanks to a grant from Texas Access to Justice Foundation that will support the installation of 25 virtual court kiosks where users can attend hearings, upload documents and more. They'll be located in local libraries, community centers and other convenient locations. Two are planned for the Harris County area.

The state, which supports many of the Texas Access to Justice Foundation's services, should do everything it can to empower courts to offer virtual access for interested participants, including supporting efforts such as the virtual court kiosks to ensure that not only is it allowed but feasible.

"It's just been an amazing opportunity for our clients to participate more meaningfully without having to take time off of work, arrange childcare in many cases," Miller said.

There are few silver linings to the pandemic, but the shift to virtual and the recognition that the courts across the state can in fact do it, seems to be one.

© 2022 the Houston Chronicle. Distributed by Tribune Content Agency, LLC.