Bringing Family Law Expertise To SCOTX | Justice Debra Lehrmann (Podcast) – Family Law

Justice Debra Lehrmann has served on the
Texas Supreme Court longer than any woman before her. But even
before that historic tenure, she served as a family law judge for
many years. She joins Todd Smith and Jody Sanders in this
episode to talk about her judicial experience and how her family
law knowledge has impacted her career and the Supreme Court’s
decisions. She also shares her insights about the Texas Supreme
Court and the recent changes in the Court’s orders and rules
relating to remote proceedings.

Listen to the podcast here

We’re very pleased to have as our guest Justice
Debra Lehrmann from the  Texas Supreme
Court. Welcome to our show, Justice
Lehrmann.

Thank you so much for having me. It’s a pleasure to be here
with you.

We’re excited and slowly making our way through the
members of the Texas Supreme Court. We have had the privilege of
having several of your colleagues on the show with a few more yet
to get, but it’s nice to have you with us. One thing we like to
do is ask our guests to introduce themselves to our audience. We
have a lot of trial lawyers and people who tune in from outside of
Texas as well. Let the audience get to know you a little bit. Tell
us a little bit about yourself, maybe your background, your path to
the law, and so forth.

I am Debra
Lehrmann. I am now the Senior Justice on the court and the
longest-serving woman to ever serve on the Supreme Court of Texas
in the history of the state. I’m very thrilled about that. If
you would’ve asked me years ago if I would ever be in this
position, I would’ve started laughing and maybe fallen off a
chair or something because that’s not what I envisioned for my
future, but here I am. I am so blessed and thrilled to be able to
serve the jurisprudence and the people of the State of Texas in the
third branch of government. The way that I’m so fortunate to be
able to do it is wonderful.

I went to the University of Texas as an undergraduate student. I
was getting my degree in Psychology. I thought I wanted to go on
and get a PhD in Psychology. My plan was to become a professional
counselor. I did an internship during my junior and senior years as
an undergrad at UT at the Austin State Hospital. It was very
difficult for me. The people who are in that position of having to
reside in that facility are very challenged. They have such
incredibly sad lives and stressful backgrounds that often brought
them to that place. Here I was a young undergrad student who loved
to be with people, study hard, but also have fun. On Friday
evenings after working at the state hospital, I would come home and
want to go to bed at 8:00. That was not like me.

I started looking at these people’s files. I was in the
women’s unit. I was struck by how many of these young women had
been sexually abused as children. It was a very dominant theme.
That made me start thinking as I realized that this therapist role
was not going to be for me. That’s when I got serious about
wanting to go to law school because I thought if I could reach
people sooner in their lives before things got so out of whack that
it could make a difference. That’s what drew me in the first
instance to go to law school.

I thought about it in the past. My father was a doctor and he
had encouraged me not to be a doctor, which is interesting. Not
because I was a woman or anything like that, but because doctors
worked so hard. He knew that I wanted to have a family and
children. Fast-forward, I was a young lawyer working in a large law
firm at the time. Back then, you couldn’t do much virtually.
You did everything in the library. It was very common for us to be
in the office until 10:00 or 11:00 at night. I remember thinking,
“Dad was not hitting it right on the mark when he thought this
is going to be less time-consuming.”

Did he know any lawyers?

He didn’t know any lawyers. We didn’t have any lawyers
in our family. It was an all-doctor family. My father and my
grandfather were doctors. The law was a new area for us, but
that’s what got me into it to begin with.

Your practice experience, as I recall, was geared toward
family law. I would imagine that influenced what you experienced
with the Austin State Hospital and investigating the backgrounds of
the patients. It seems like that’s a natural fit. Did that
greatly influence your decision to practice primarily in the area
of family law?

Yes. I went into it with that in mind. I first started out at
the DA’s office. I was a prosecutor in Fort Worth and was
handling those types of cases having to do with child protection
work, etc. It is interesting that I ended up liking the work. I
liked the courtroom. I was very comfortable in the courtroom, which
I didn’t particularly expect. As I say, I didn’t come from
a family of lawyers. I went to law school without any assistance in
terms of understanding what law school was going to be like or
anything like that. I never thought at all that I would be
particularly good in the courtroom or that I would like it, but I
ended up liking it a lot and being very comfortable.

I did that for a few years. I then went with a large law firm in
Fort Worth, Law Snakard & Gambil. At the time, the three
largest law firms in town were Law Snakard & Gambill, Shannon
Gracey, and Cantey Hanger. My husband was at Shannon Gracey and I
was at Law Snakard. When I was there, there was a push to
accommodate the firm’s clients with full services including
family law. That’s what I was hired to do, to help head up that
section. I also did other things as you do when you’re an
associate at a large law firm, but that’s where my focus was.
When I became a judge at a very young age, I was a family law
judge. I was a trial judge for many years.

Going back, I met my husband in law school. I grew up near
Houston in a small town called Baytown. My husband grew up in Fort
Worth. We both went to the University of Texas undergrad and law
school, and that’s where we met. At this point in time, as
young lawyers, we had gotten pretty serious. We were both
interviewed in the Houston area and the DFW area. It happens that
we both got jobs in the DFW area first. That’s why we ended up
in DFW. We were there for many years until the governor appointed
me to the Supreme Court. We went back and forth for quite a while.
We have settled in Austin. Austin is our second home. I love
Austin, but Fort Worth will always be home because we were there
for so long.

I can understand that.

I can too because Fort Worth is my hometown. We have a
lot of affinity for Fort Worth here on the show.

I always tell people that Fort Worth is a small town with a
whole lot of people. When you look at Tarrant County, there are a
lot of people there, but we all know and support each other.
It’s a wonderful place to be. The legal community is very
tight-knit. The legal community in Austin reminds me quite a bit of
Fort Worth. It’s very tight-knit also, even though there are
more lawyers. I’ve enjoyed that about coming back to Austin
after so many years being gone practicing law and raising a family
in Fort Worth.

Family Law: Fort Worth is a small town with a tight-knit legal
community full of people who support each other.

You mentioned going on the trial bench. That’s one
of the things we wanted to talk about. How did you get from the
private practice to the trial bench?

As I said, I enjoyed the courtroom. As I’m in the courtroom,
I started realizing that being a part of the judiciaries would
probably be a good fit for me and that I would enjoy it. When I was
first appointed, I was appointed as an associate judge. Those are
judges who do comparable work as the district judges, but
they’re appointed by the board of district judges. At least,
that’s how it was in Fort Worth and in most places. Any
decision that’s made by the associate judge could be appealed.
Now, it’s called a trial de novo, but it’s the same concept
as the district court. I did that for a number of years.

There was a vacancy on the trial court where I was an associate
judge. Governor Bush, at the time, appointed me to that bench as a
district judge. I was a trial judge for 23 years. It has been a
long time. I had always been interested in appellate work. I always
thought that I probably would become an appellate judge. I was
doing a lot of writing. I wrote many law review articles. The Texas
Bar Foundation recognized one of my works as The Best Law Review
Article of the Year. I wrote for LexisNexis. I would annotate the
family code for them. I wrote another legal treatise on the
representation of children.

I was always writing and publishing. That’s where my love
has been for many years. People knew it because I was published. I
was also published nationally. I’ve been very involved in
the American Bar
Association, the Uniform Law Commission,
the ALI, and all these
different national organizations. I was doing a lot of writing in
those areas as well. It was always assumed in Fort Worth that I
would go to the intermediate appellate bench, but what happened was
all of the other justices on the Fort Worth Court of Appeals were
my age. We all had young children and I wasn’t going to run
against one of my colleagues. That’s not something I ever had
any desire to do, nor would I ever do that.

There never was an opening to run for the intermediate courts of
appeals. When Justice Harriet O’Neill announced that she was
going to step down, it was perfect timing. Greg and I have two boys
and they were getting ready to go off to college, so we
wouldn’t have to be taking them out of their schools in Fort
Worth and take them to Austin. It was a perfect time. There was a
real need in the court for family law expertise, and the court knew
it at that time. It was a good fit. That’s when I decided to
put my name in the hat for that position. Fortunately, I was
successful.

How was the process of going from running locally in
Tarrant County to running a statewide election?

It’s quite crazy. Texas is big. The thing about it is
you’re always going back and forth. You have a breakfast
meeting in Austin, a lunch meeting in Houston, and a dinner meeting
back in Austin. The next morning you’ve got to be in Dallas.
You’re crisscrossing constantly. The question someone would ask
is, “Why in the world would you do that? Set it up so that
you’ll go to this part of the state and then you’ll stay
there.” It doesn’t work that way. You go where the people
are, especially when you were first starting and nobody knows who
any of us are still. They certainly didn’t back then. You go
where the people are having big events, and it was never ever in
the same place. There is lots of travel.

I tell a story about the one time we were in my hometown of
Baytown. We had an event. It was one of those events that lasted
pretty late into the evening. It probably didn’t end until
about 9:00. Greg has been a wonderful companion, supporter, and
soulmate. He and I have done this together. We weren’t able to
leave Baytown until about 9:30 in the evening. As we were coming
into Fort Worth, Greg fell asleep and we ended up in a ditch.
Luckily, we were very close to our home. Thank goodness that’s
all it was and it was no big deal, but it could have been a big
deal.

I often think, “Why in the world did we do that to get back
to Fort Worth?” It’s a small town with a lot of people and
everybody already knew us, but somehow we were compelled. We had to
go to every single thing. It’s big and it’s a challenge,
but we got to meet lots of wonderful people. I don’t
particularly think that the way we select judges in the state is
the correct way to do it. I think there are better ways to select
judges, but I love the work I do and this is the way we do it in
Texas so we play by the rules. That means doing the things that
I’ve talked about.

You have the good fortune of having been elected and
re-elected to your bench. Most recently, back in November, you were
re-elected again. I suppose you can take a little bit of a pause
before the election cycle ramps up again for the next go-round. Our
Supreme Court justices are elected to six-year terms so you have
that level of job security. You mentioned that you and Greg had
made Austin your second home, but you’re here the majority of
the time. Having an election behind you right before you make that
decision seems like a smart choice too.

It’s nice to have that behind you at least for another six
years because there is a lot going on when you’re trying to get
from here to there. Also, the work of the court is very intense.
We’re dealing with the most significant issues, touching real
people, and having to do with the jurisprudence of the State of
Texas. We’re very aware of the importance of the work. The
campaign always takes a backseat to the real work of the court.
That means oftentimes we’ll be traveling and I’ll be in the
backseat. We would joke in an SUV that I’d be in the trunk
because I’m small and I’ll fit. It wasn’t the trunk,
but it seemed like it.

There I am with all my papers, laptop, iPhone, or whatever
I’m working on at the time. The good news is nowadays, you can
do this stuff away from the office. In a lot of ways, it’s
better than being in the office to do it because you do have quiet
solitude so that you can seriously study and contemplate these very
heavy important issues to make. It’s so important that we get
the law right and not just do it to get it out. That’s so
important.

One thing you mentioned was you brought a wealth of
family law experience that the court didn’t have. It seems like
that’s coincided with the court taking more family law and
parental termination-type cases. I know you don’t want to take
credit for that, but it seems like there has been more of a focus
in the last decade or so on family law at the court than there had
been previously.

Do you remember in San Angelo when they had a big event where so
many children had to be taken from that compound or were taken
because of allegations of serious sexual abuse? It was a pretty
overwhelming situation for the court because there were so many
children who had allegedly been abused at very young ages. All of a
sudden, there’s a whole need for a lot of family law. It’s
not just expertise but also manpower because all of these children
were entitled to court-appointed lawyers.

In any of these CPS cases, the parents are entitled to lawyers.
Oftentimes, there are multiple fathers involved. The children are
entitled to legal representation and then you have CASAs involved.
There’s a lot going on there. When you multiply that by the
many children that were involved, it was very overwhelming to the
system and the court. That was the start of it. We had some
appellate rules that have changed in terms of appellate rights
having to do with CPS and terminations.

All of that has contributed to the increase in the number of
cases that we have taken. It’s not necessarily in family law
generally. Although I am always looking for those particular issues
because there are issues that need to be settled that you may not
know about that much if you weren’t in the trenches. I do keep
up with it a lot. I’m always looking for those, but I
wouldn’t say those are any different than other areas of the
law like oil and gas, sovereign immunity, and all the other things
that we do. In the CPS realm, it is different. We do take a lot of
those cases.

We have a mandamus lawyer and we call that our emergency docket.
Now, it’s also not just the mandamus. It’s all kinds of
things, especially since the pandemic, that have come up. This CPS
docket is close to half of that entire docket. I don’t mean our
entire docket, but that entire emergency docket. That’s a lot.
There are a lot of those cases that come in front of us. We are
taking quite a few of those.

You mentioned the San Angelo situation and how it
impacted the court. For those who don’t know about it, that was
the Yearning for Zion Ranch going back more than ten years now. One
thing that’s worth mentioning there is that was an impressive
pro bono effort on the bar’s part in getting those kids
represented. That was one of those moments where you felt good
about being a lawyer, even though this terrible situation was going
on out in West Texas.

The Supreme Court, as it tends to do, took leadership in
a difficult situation. The bar took on a significant role in
representing the folks that needed help back then. I hadn’t
thought about that in quite some time, but you mentioned it and it
made me think that was one of those shining moments that you’re
proud of being a lawyer in Texas.

It was wonderful how the bar stepped up. We had no shortage of
lawyers who were volunteering to assist in this crisis. As always,
we ask and the lawyers step up as they always do, and they did
again. It was a great thing.

Family Law: It is wonderful to see the bar step up, and there
was no shortage of lawyers who were volunteering to assist in a
time of crisis.

When we have your colleagues on the show, we always like
to ask about their liaison assignments because you’ve got a
very good and deep comfort level with family law. Family lawyers
are their own tight-knit bunch. Their annual CLE program down in
San Antonio makes all the rest of us a little bit jealous because
they’re getting together and having a good time. As appellate
lawyers, we have pretty good CLE programs too, but that one is
famous in its own way. Other than your continued involvement in
family law matters and the Family Law Bar, what liaison assignments
are you serving at the court that are interesting or that you would
like to talk about?

They are all interesting, but the position that I enjoy so much
is being the liaison to the State Bar of Texas. It’s so
important and it’s something that I enjoy. I love lawyers.
I’m married to a lawyer. We have two sons that are lawyers.
Most of my friends are lawyers. Professionally, I’ve been
around lawyers all my life. Coming from a family of no lawyers, I
went to the other extreme. I appreciate the third branch of
government so much and what we do as lawyers, and its importance in
our society. It can never be overstated. It’s something that I
firmly believe. It’s a joy to be able to serve in that
role.

It’s also a natural fit because I have been involved in bar
politics since I was a very young lawyer, starting with going up
the ranks in Tarrant County and becoming the President of Tarrant
County Young Lawyers. I’ve gotten very involved in the American
Bar Association and worked through the ranks there. I eventually
became the Chair of the Family Law Section of the American Bar
Association.

I’m also very involved in the Uniform Law Commission. That
is a commission comprised of lawyers, judges, and law professors
from around the country who work very diligently on the uniform
laws that we all use as models or as uniform acts for our various
legislatures to adopt. That has been a very rewarding experience
also. Also, as a member of the American Law Institute, I’m
working on the re-statement of Children and the Law. That’s all
very important and fascinating work that’s very bar related.
The fit between me as the liaison in the State Bar of Texas is a
good one. It’s also one that I hope to continue to do for many
years.

Prior to that, I was the liaison on BODA, which is the Board of
Disciplinary Appeals. I enjoyed that also because that’s very
important in terms of the whole disciplinary system with regard to
attorneys and the service that we provide to the public. Whenever
an opening came up at the State Bar of Texas, when Justice Phil
Johnson stepped down, I expressed to the chief that I would be
interested in that liaison position. There’s no way that I
could do the Board of Disciplinary Appeals and the State Bar of
Texas. I’m also the Chair of the Children’s Commission, The
Permanent Commission on Children, Youth, and Families. That’s a
big-league liaison role also.

I had to give up the liaison-ship with BODA, which I hate to
give up anything like that, but there are only so many hours in a
day. I loved that. That’s part of the work that people
don’t realize. Lawyers know intellectually, but people
don’t realize how much time those liaison roles take and their
importance. It’s stuff that we need to devote a lot of time to,
and we all do.

Will you talk a little bit about the Children’s
Commission and the work that it does? I bet a lot of people
don’t know what they do.

The commission was created when Harriet O’Neill was stepping
down or during that period of time from her transition. She was
there for a few years. She was the mastermind behind it. It did
grow from this experience that came out of San Angelo in an attempt
to try to fill whatever void may have existed with regard to those
kinds of cases.

The commission is comprised of primarily lawyers who are
assisting judges. It’s to assist the judicial branch of
government to make sure that judges have the training. It’s not
the facilities so much, but the tools that they need so that they
can make sure that these children and families that are affected so
tragically when there have been allegations of abuse or neglect by
them against their children, to make sure that the professionals
from the judicial side are equipped to deal with that
adequately.

The commission does a lot of work looking at resources
throughout the state and throughout the country. We are now doing a
project on developing standards for the representation of parties,
including parents and children, who represent these individuals in
these types of cases. Standards are important so that we can make
sure that we’re not just doing the bare minimum, but we are in
fact implementing best practices so that we can be the best we can
be for this very challenged segment of our society. It has been
very successful.

You mentioned the Uniform Law Commission. Family law is
one of those areas, especially when you’re talking about child
custody issues, where you do need that uniformity in the law
between the states. That’s a hugely litigated issue when
you’ve got custody and support issues. In our current society
where people move around a lot and they move between states, it
does make a lot of sense that there would need to be a big effort
made. I’m not a family lawyer. I don’t practice family law
at all. From what I’ve observed, that work does seem to be
super important because of the need to preserve stability in the
party’s expectations across the state lines.

That’s where the UCCJEA came from, which is the act that has
to do with jurisdiction. There are a lot of jurisdictional issues
in terms of whether a parent can leave a state and go to another
state in order to avoid whatever they want to avoid from that
particular state. That’s one of the reasons that it’s so
important.

We also have a uniform act that has to do with the military.
It’s the same idea. When you have a military spouse that has
been deployed to another state, can that spouse somehow take
advantage of certain laws that may be more friendly to them in that
other state? We have an act that many states have adopted that
clarifies when that can and when that cannot happen to avoid that
game-playing that can go on.

The commission does all kinds of things. One of the jewels of
the Uniform Law Commission is the UCC, which is always being
updated. We are always in the process of having a drafting
committee deal with that. When I first got involved many years ago,
I was an ABA advisor. I had been appointed by the American Bar
Association to a drafting committee. Through that process, I saw
how the whole ULC process works. It’s unlike many state
legislatures where you have a lot of personal interests going on
and there are a lot of negotiations. It’s not particularly to
get to the right answer but it’s like, “You give me this
and I’ll give you that,” and then you end up with who
knows what.

This process is very different in the sense that you’ve got
experts and law professors from different areas of the law,
depending on whatever that particular issue is. They are going to
come in and give their expert opinions. We then bring in
stakeholders from different areas to make sure that we are dealing
with competing views about what public policy should be. It’s
vetted. It goes through a process of at least two years of intense
study and discussion of what should go into these uniform laws. It
goes to the committee of the whole, which is all the commissioners
throughout the states. There are about 300 and something.

Every summer, we meet for about seven days. We read through
every act that’s on the table line by line. You can imagine
it’s a very intense process that takes a lot of time, but
it’s a very good process to come up with a uniform act that had
been vetted by objective experts. They have debated the issue a
lot, and then come up with what that commission has determined is
the best policy decision for that area of the law. That’s why I
got involved because I thought the process was so well done, and
not just a bunch of arguing or special interest that we know goes
on in the various legislatures when they’re coming up with
legislation. I will come in as a twenty-year member. I’ve been
doing this for a long time. It’s very rewarding.

I forgot what we exactly call it, but we have a uniform act on
the faithful of electoral college members. We do all kinds of
things. We have a uniform act on the Anti-SLAPP statute, which we
see a lot of that before us now, and so do other states. It’s
for a very good reason that we have these statutes, but it had
become so broad that almost anything was being subjected to
dismissal at the very front end of the lawsuit simply by bringing a
motion to dismiss under the TCPA or whatever it is in the various
states. There are acts on all kinds of issues like that.

I want to talk about some recent developments at the
Supreme Court a few weeks ago and some things that are happening in
our state. Before I do that, I did want to ask you generally, what
was something that you learned after joining the Supreme Court that
you maybe didn’t expect or that was surprising or different to
you?

When you’re a trial judge, you’re the boss. You make a
ruling. You make the decision, affirm, overrule, or whatever you
do, and that’s it. There’s no negotiation. You negotiate in
your own mind to make sure that you get it right in every case.
It’s just as important to get it right at that level as it is
at the appellate level, but you’re the one making that final
decision.

On the Supreme Court, you are trying to convince a majority of
the court, depending on what level of the process we’re at. To
grant review, I try to convince three of my colleagues that this is
something we need to take if I believe it is, and then four
colleagues to have a majority on any opinion. That entails a lot of
negotiation skills going back to being a lawyer that you don’t
have to deal with when you’re a trial judge. I hadn’t
thought about it that much.

Reading all of these cases and being involved at the level I
was, you think of it more in terms of researching, writing,
studying, and getting it right. There is a lot of that that goes
on. For example, right after we have an oral argument, we all know
by a random assignment which case we’ve gotten by the time we
get into that phase of the lawsuit. We know the case by that time
very well. We’ve read all the petitions. We’ve done a lot
of research. We’ve done our own internal research. We’ve
gotten a full briefing by all parties. We’ve gotten quite a bit
of amicus lots of times. We’ve read all of that stuff.

One thing they ask me a lot of time is, “Why even have an
oral argument?” You would be surprised how oral argument does
help a lot in the terms of maybe redirecting the focus or making
you think about something in a different light. It’s probably
not something we haven’t thought about because we’ve read
all this stuff so thoroughly by the time we get to that phase, but
we may not be thinking of it in the way that the lawyer is
articulating it. That was not obvious from the briefing. That can
change things quite a bit.

You go into the first conference after an oral argument, after
we have already done what we call a post-sub memo expressing our
views to the other eight justices. We then talk about it. During
that discussion as we’re talking about it, you get a feel at
that point of time if you’re going to have to move, how much
you’re going to have to move in order to keep the majority,
whether you are going to be able to keep the majority and all those
kinds of things that I hadn’t thought about before I got on the
court. It’s a major part of what you do.

Over the years, I’ve learned more and more that I would
prefer to keep the majority if I can because that is going to mean
that the law is going to be written more in accordance, which I
believe is the correct application of the law. However, that means
I’m going to maybe have to shift quite a bit so it wouldn’t
be exactly what I believe would be the correct application. If I
don’t do that, the alternative is that you give the majority
up. You become the dissent. What is that? That’s Debra
Lehrmann’s opinion.

Family Law: Keeping the Supreme Court majority means writing the
law in accordance to its correct application while having to shift
a bit.

Those are the things you learn while you’re doing it and how
much that becomes a big part of the entire process, in a way as
much as the studying, writing, and reading part of it. Although
that’s involved too because to get to that point where you can
shift a little bit, you’re not going to shift to the point
where the law is not applied correctly. That takes a lot of doing
in the process to get to that point also, but I didn’t expect
that.

It’s hard from the outside because nobody sees that.
We send our briefs or maybe we go to an oral argument, and then you
get an opinion, but we don’t see everything that goes from the
point you get our briefs. Out of curiosity, when you pick up a
petition or a brief, where do you start when you read? What’s
the first thing you go to?

It’s the statement of the case because you get from that a
very condensed version of what’s going on. You can tell what
issue this is. Is this an issue that has to do with the Tort Claims
Act? Is this an issue that has to do with First Amendment issues or
Anti-SLAPP? You get through that in a very brief way what’s
going on and what the lower courts have done.

I have a template that I use for every case where I’m
outlining those kinds of things. Remember, we read so much.
There’s a lot of reading going on. We have to be able to
assimilate what’s going on in this particular case quickly
because we have so many other things to read. We all read every
single petition that comes in. We made that assurance to the
Appellate Bar years ago. We have lived up to that. We read a lot.
The good news is we all like to read. If not, this is not a job for
you.

You learn also how to get to it quickly. Immediately, I can go
through and know what I have to fill in so that I have a good
concept of what this issue is, and then go to the Court of
Appeals’ opinion and read it to figure out their legal analysis
of what was going on. That’s the most efficient way that
I’ve figured out how to do it.

Your discussion reminded me that you may be the author
of an opinion that winds up being a majority, but it’s worth
remembering or being reminded that it’s the opinion of the
court. It’s you and at least four other justices, generally.
I’m sure that the first draft of an opinion may not look a
whole lot like what the final draft that’s published looks like
because you’ve got eight other elected justices on that court
that have very strong opinions about the law. I can imagine that
process of collaboration couldn’t strengthen opinions
sometimes.

It does. There’s no doubt about it. I always talk about how
we challenge each other, but we challenge each other in a very
respectful way. Both of those parts of it are very important. When
I’ve spoken at CLE sometimes, especially younger lawyers will
ask me, “What do you mean we disagree, but we do it
agreeably?” If I read an opinion that one of my colleagues has
put on the table, I may agree with the outcome, but I don’t
agree with a certain part of the analysis.

I have one of two ways to deal with that. I could say,
“This is the silliest thing I’ve ever read in my life.
Where in the world have you come up with this?” or I can point
out that I certainly respect the work that they’ve done, and
I’m just trying to understand why is it that they have come up
with this answer and I’ve come up with another answer.
Let’s try to work through that. We do work through that a lot
of times. We end up with a much better product.

One of the scariest things that ever happens to any of us is
when we put a writing on the table, it goes around, and everybody
agrees with it immediately. Everyone is like, “We might want a
few more eyes to be looking at this a little bit on the same level
that we looked at it.” You don’t want that. When
that’s happened, many times, we’ll pull it ourselves and
say, “Let’s give it one more go-through and make
sure.” There are things when we’re drafting that we’ll
be thinking, “What about this or that?”

I cannot stress enough how much challenging each other, as long
as it’s done in a respectful way, is important to end up with a
better product. It’s not just being argumentative for the sake
of arguing, but to challenge each other in a healthy way, which
everyone on the court does. We do have a very good court right now.
Our court is very respectful of each other and very constructive
instead of destructive. It does end up with opinions that are much
better and more valuable to the jurisprudence of the State of
Texas.

Let’s transition as we wind down to the recent
developments that I was alluding to. The Supreme Court issued now
60 emergency orders beginning in March 2020. Those orders allowed
judges to continue doing business during the pandemic. That
included adopting remote proceedings. All of our judges got a Zoom
account and learned how to use Zoom very quickly. At least on the
civil side, which is what your court deals with exclusively, they
were able to successfully implement Zoom to have hearings,
evidentiary hearings, and even virtual jury trials.

We’ve had a lot of discussion on our show about
remote proceedings, generally. Folks who have tuned in to us maybe
know a little bit of that history. They say, “All good things
must come to an end.” Your court announced, committed itself,
and issued what it titled as the final emergency order in response
to Governor Abbott’s Declaration of Disaster. One thing that
might be worth mentioning here is the significance of the
Declaration of Disaster as far as the court issuing emergency
orders and permitting trial courts to go forward.

My recollection and understanding of it are we have
certain requirements in our Constitution about how courts can
operate. Some of those requirements carry forward into statutes.
One of those is district courts must conduct business in their
local county seat. I haven’t thought too much about this over
the last few years which is funny, but there was no constitutional
authority for courts to conduct remote proceedings without not only
the Supreme Court’s emergency order but also, as I understand
it, Governor Abbott’s Declaration of a State of Disaster.
Without it, there was no way that the constitution and those
statutes could effectively be set aside on a temporary basis and
allow courts to proceed virtually. Do I have that
right?

Sort of.

I would love to be corrected.

We were playing it by ear. If you remember, it all happened so
quickly. Everything is fine. We’d heard maybe a few stray cases
from wherever that there was something called COVID, but it did not
hit home until Tom Hanks came down with it. It was a basketball
game.

The NCAA tournament.

They had to shut it down, and then our own University of Texas
President’s wife came down with it, who had been in New York
City. All of a sudden, in a very short period of time, here we
were. We were getting together at all hours of the day and night to
figure out what we were going to do even before the governor had
issued it. We knew at that time we needed to start staying at home.
Everybody was figuring that out. Even before Governor Abbott said,
“You need to stay at home.”

We were trying to figure out, “What do we do?” Trials
have to continue. People are still entitled to justice regardless
of what’s going on in our environment. We never dealt with
anything like this. At the time, we didn’t know that it was
going to go on for years. Who would’ve had a clue that we would
do 60 emergency orders? We did know that we needed to do something.
Through the leadership of Chief Justice Hecht and the Head of
Office of Court Administration at the time, David Slayton, the
court got together and came up with this idea of Zoom, which many
of us had not even heard of before then.

We started playing around with the idea that we needed to start
doing things via Zoom. We were the first court in the country to
start doing that and have been a model for all the other states. It
was largely through the work of David Slayton, Chief Justice Hecht,
and all of us getting together and putting our heads together. We
decided to do our first appellate argument that was scheduled right
after this all started, and we did it by Zoom. We never missed one
appellate argument. We never skipped a beat.

For appellate work, that’s worked well because appellate
work doesn’t have the issues that you may have in terms of
evidentiary issues in terms of making sure that things are
authentic and accurate, and all those kinds of things. We don’t
have those issues. It worked very well for listening to oral
arguments. I’m so thankful that we have that as a tool.

Even though we haven’t been doing anything by Zoom since
September of 2021, we were able to use Zoom because of the ice
storm that we had. We had people coming in from Dallas and Fort
Worth who couldn’t fly because everything was shut down. They
couldn’t drive to get to the airport, even if they could fly,
and they certainly couldn’t drive here because of the bad
driving conditions. So we used that.

We used it in 2022 when we had a similar ice situation. I’m
glad that we have the tool. It ended up being something that we
have felt out as we’ve gone. It helped when Governor Abbott
issued the State of Emergency Declaration because then we had a
little bit more authority than just issuing emergency orders for
the third branch of government. We have cases that are coming
before us right now in terms of how we deal with them in the
future. Does the local government take priority or do they have the
final say as opposed to what the governor says? Those kinds of
issues are still coming before us and have yet to be determined.
There were no clear rules on how to deal with it.

I was in a meeting with ABA practitioners on this whole virtual
world that we find ourselves in. One of the attorneys from another
state was saying that they are doing everything by Zoom still. I
said, “That’s interesting because, in Texas, we just
issued our final emergency order that is set to expire in
March.” The reason that we continued with those emergency
orders even after the real danger of the pandemic had passed us is
we believed that we had to have some authority in order to allow
proceedings to go on by Zoom or virtually.

In this other state, they’ve been doing it. They don’t
have an emergency order. They didn’t change their rules as we
did. We got a rule out a couple of weeks ago. They’re just
doing it. As I said, we’re playing this by ear. The
constitutional issue that you’re talking about has to do not so
much with the ability to do things virtually. Our problem with that
was more that there wasn’t any authority for it. We wanted the
rule in place before we got rid of the emergency orders. The
Constitution has to do with a trial judge, county or district
judge, having to be in the county seat where the case is being
heard.

For a lot of larger metropolitan areas, that wasn’t a
problem because even though they were at their home, they were in
the county seat probably. It wasn’t a constitutional issue, but
it was an issue that had to do with a lack of authority. Are we
making it up? Sometimes at the beginning of an emergency like that,
you have to do the best you can. You have to know that the greater
need for our citizens’ constitutional rights to justice and
access to the courts to protect their due process rights, whatever
rights are at issue, took priority over the fact that we didn’t
have the authority for it.

It could even possibly take priority over some constitutional
limits, which it did in those cases. There were judges who were
able to hear things virtually, particularly in these areas out in
West Texas where a judge will be the district judge over courts
over many counties. They were able to hold court from one area
within the county seat and that did violate the Constitution, but
we allowed that by emergency order.

We couldn’t change it by rule because of the constitution
and we no longer have that emergency. We just figured out it’s
a good tool that we need to be able to use. It’s important that
people realize that the new rule does not allow jury trials to be
held virtually absent the agreement of the parties. If the parties
agree, then they are able to have a jury trial virtually. If anyone
objects, then there are no jury trials virtually. Other than that,
the court does have the authority to have things done virtually,
and all appellate courts do if they see that there’s good cause
to do so.

Family Law: Despite the new rules, jury trials are not allowed
to hold virtually absent agreement of the parties. If they agree,
they can have a jury trial virtually. But if anyone objects, there
are no jury trials virtually.

We’re talking about the new rule of Civil Procedure
21(d) primarily. There are some other amendments that were
necessary when the court adopted that such as changes to notice
requirements and so forth because parties have to be notified of
the method by which the court is going to hold the hearing.
I’ll hold that rule though.

You mentioned Texas being a leader in the pandemic time
by creating Zoom accounts and getting everyone up and running on
Zoom. I haven’t seen a rule like this in another jurisdiction.
As you said, other courts are still doing whatever in other states.
The Texas Supreme Court, in particular, has been proactive not only
with the release of 60 emergency orders to help our justice system
continue as it needed to but also in now figuring out a path
forward.

What this rule seems to do is it tries to take the good
that came out of using remote technology and make it available and
set some parameters for that. One of which is what you’ve
already mentioned, which was there’s no jury trial that can be
held virtually unless everyone agrees. There are some procedural
processes built into the rule. There’s a process for objecting
to virtual appearances.

The one overarching theme that I get out of the new rule
is that it assumes that proceedings will be in person, but there
are ways to go about doing it differently, either at the
court’s notification to the parties or by a party’s
request. That’s a new one. It hasn’t been presumed that
we’re going to be live in a lot of these things for a long
time.

That is the idea. One thing that we learned as we were going
through this emergency situation was that there were some good
things that came out of it. I was up for election in 2022. I was
going around the state, talking to different members of the legal
profession lawyers about how these virtual hearings had helped them
and what they didn’t like about it. We got a lot of feedback
that there were some important areas where we needed to keep
virtual trials or hearings to be available.

In December 2021, we appointed a committee that was headed by
Chief Justice Tracy Christopher and her assistant chair, Emily
Miskel, who had done a lot of exceptional work with regard to
jumping in on the whole Zoom bandwagon early on. They had a
Blue-Ribbon Committee that went through every single rule in our
entire system, rules of civil procedure, rules of appellate
procedure, etc., and identified every single thing that was
affected by these virtual proceedings.

We had a very good blueprint of what needed to be done. They
came out with recommendations. It was a very thorough report that
then went to our Supreme Court Advisory Committee or what we call
SCAA. That is where all our proposed rules go before we implement
any change. Any time we’re going to have any change at all to
our rules, we don’t do it without thinking about it a lot. It
all goes to SCAA and there are a lot of studies and investigations
that go into those determinations. They then report back to us. We
may tweak it or send it back, but we never change rules without it
going through this very intense process of study and
deliberation.

That happened with these rules before they were able to come to
fruition. That finally happened a few weeks ago, but we had been
working on it since December 2021. If it’s going to be
thoroughly done, it’s not going to be done overnight. We may be
the first state in the country that has implemented a rule that is
allowing for this type of virtual proceeding. I talked to some
people from other states who said that they’re still working on
emergency orders. I talked to another who said that they are doing
it. Hopefully, this will be a blueprint for other states to also go
through the process of figuring out a rule that will work for
them.

Family Law: Texas may be the first state that has implemented a
rule that allows virtual proceedings. Other states are still
working on emergency orders, and they can use this as a
blueprint.

As with any new rule, there are typically growing pains.
This is so new that there will be some development. Courts are
going to be asked to hear objections to virtual appearances or I
suppose live appearances too. It will be interesting to see how
that shakes out. There is a process built into the rule for the
court to decide those objections. We’ll see what happens after
that. There are some open questions at this point.

There always are.

What would we do as appellate lawyers specifically if
there were no open questions or no gray areas in the law? I am
super excited about this development because putting an end to
emergency orders was a very worthy goal and a worthy thing to do.
Releasing this rule, piggybacking on the end of emergency orders
made a lot of sense. We may have to do a whole episode on this
change because it’s going to be interesting how it develops
later on.

Thank you for that. We got so much input from many lawyers
around the state who did have opinions about it. We were in San
Angelo on the campaign trail and we had a lot of rural lawyers that
attended one of our luncheons. They very much expressed the view
that it made their lives and their ability to help their clients so
much better because they live in the middle of nowhere. They
didn’t have to travel so much. It was more cost-saving to their
clients and more efficient in terms of what they were able to
deliver to their clients.

There were a lot of discussions about whether or not jury trials
would be mandated over objections. That’s what kept the
committee from going forward for a while because everybody got
stuck into that discussion, even though internally the court had
already recognized the problems with that. We weren’t at
liberty to discuss that publicly, but we knew that there were a lot
of problems with forcing jury trials to be held virtually over
objection.

Finally, we decided that we would issue publicly that our
consensus was we weren’t going to have that. Once we did that,
people were able to get over what they were so afraid of and talk
about all these other issues that we’re talking about having to
do with what you’ve brought notice to, and all the things that
had to be dealt with to finally get a finished product. As the
statutes come before us, we’ll have the rules come before us.
We’ll see what happens.

We are so grateful for this time, but before we let you
go, our tradition is always to wrap up with a tip or a war story if
you have one you’d like to share.

The first thing that comes to mind is our court is very formal.
It’s not because we’re full of ourselves, but it’s
because of what we do and what we represent and the importance of
that to the people of our great state. With that, we are very
prompt. We’re never late. We don’t ever start after the
time we should. If you have a case that’s set for 9:00, you
better be there at 9:00. If it’s set for 10:00, you might want
to be in there 20 minutes early because sometimes we’ll go in
early, but we never go in late.

We have a television inside our robing room where we can see the
courtroom. We know what’s going on inside the courtroom for
safety purposes. We’re getting ready and it’s approaching
9:00, and the lawyer for the petitioner is not there. We’re
like, “What do we do?” At the time, Justice Wallace
Jefferson was the Chief Justice. We go out and the table is empty.
We proceeded with the respondent who made his argument. About five
minutes into that argument, this lawyer comes running in a little
bit frazzled. She runs in front of the opposing counsel’s
table. She sits in her seat and waits for her turn. I’m
watching this thinking, “She’s going to be so nervous and
out of whack. This isn’t going to work.”

She started and she did not skip a beat. She was as eloquent and
prepared. It didn’t seem to frazzle her at all. It was very
impressive. It turns out she was one of these lawyers who had come
several hours ahead of time and had gone to the state law library
to be sure she read everything over again and get super on top of
everything, and she lost track of time. She got a call from
somebody who was over her where she was working saying,
“You’re not there,” because everything is televised
and they were watching it. They’re going, “You need to get
into that courtroom.”

The answer is number one, be sure you put a timer on your phone
for at least 30 minutes before you’re supposed to be in the
courtroom. Be aware that if you are late, we’re not going to
wait. The parade will go on. I want to thank you all for doing
this. It’s so wonderful that we can do these things again
virtually so that we can reach more people and communicate.

One thing we try to do as justices on the court is to humanize
the court, not just for members of the public that’s important
but also to lawyers and even appellate lawyers who know us more
than the average citizen on the street. That’s a big thing we
try to do so that people can understand that this is not just some
court up on an ivory tower that’s issuing opinions and not
working, not studying, and not caring. That is not the case.

The more that we can explain that to people and help non-members
of the legal profession understand that these are real issues that
affect their lives all the time. Whether it has to do with
taxation, public education, and all kinds of issues, they affect
them every single day of their lives. It’s important to be
engaged and understand the importance of the rule of law, and that
it’s not just talk.

It is important that the shop owner down the street can know
that when he or she goes and buys those mattresses or whatever that
they want to sell to the public, they can count on the fact that
they will be delivered because they’ve entered into a contract.
If that isn’t done, they have recourse to the courts as long as
those courts adhere to the rule of law. It does affect every single
person. Thank you all for doing this. We appreciate it very
much.

It was our pleasure. Thank you for spending the time
with us, Judge. We appreciate it.

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