Last Friday, Texas Lawyer published a helpful article: “Common Blunders in Texas Supreme Court Briefs”. It was written by Martha Lackritz, who just finished a two-year clerkship with Chief Justice Jefferson. She offers solid advice.

Most of her points are applicable to any appellate court. There are two points, however, that highlight an important difference in practicing in a state’s highest court.

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Texas Department of Public Safety v. Cox Texas Newspapers, L.P., No. 09-0530 (Tex. July 1, 2011) (majority) (concurrence)

A few days ago, I saw this story in the Texas Tribune about a new open-records request about Governor Perry’s traveling security detail. The gist of the Tribune story was that DPS had actually destroyed older records, including all records for fiscal year 2007. (From the story: “Those records include documents that had been the subject of a controversial court case and previous freedom of information requests from news outlets, officials said.”)

This piqued my curiosity because — if those records had, indeed, already been destroyed — then the agency’s big win in the Texas Supreme Court just a few weeks ago might have been in a moot controversy. I wouldn’t want to be the state lawyer who had to explain that one, either to the Supreme Court (if this revelation led to a rehearing motion) or to the trial court on remand.

Now, the Tribune reports that it has been given a clarification:

While accounting records are indeed gone, the agency said Monday that it had erroneously described the extent of the records destruction. The department now says that any records that had been the subject of a lawsuit brought by newspapers trying to get more information about the expenses had been preserved.

That makes much more sense to me, given how open-records requests work. When an agency objects to a request, they are (so far as I understand) supposed to forward the documents to the Attorney General. It would be quite unusual for records in the hands of the AG to be destroyed while litigation is ongoing.

So, the jurisprudential crisis seems to be avoided. The open-records crisis? That’s now for the trial court to sort out.

I will not be posting about the Friday orders list this week or next. You are on your own until June 22nd, when I return to the blog.

As blog readers know, the Texas state appellate courts are shifting toward electronic briefs. Unlike the federal system, the Texas rules permit advocates to make use of hyperlinks and encourage the use of internal bookmarks to ease navigation. The focus is on making the briefs more useful to the ultimate readers — the judges and law clerks who will use them to decide cases and write appellate opinions.

Last Thursday, I gave a presentation about electronic briefs with Blake Hawthorne at the UT Conference on State and Federal Appeals. We covered quite a bit of ground for a thirty-minute talk — the basics of how to make these briefs, some survey results from judges and staff members who have been using them for the past year, and some clips of video interviews with Texas Supreme Court Justices on the same subject.

See the video interviews and get the slide deck

So, how often do counsel botch an e-filing by leaving in redacted information?

Tim Lee has done a study of redaction failures using a nice-sized subset of the federal PACER database. More specifically, he looked at the documents donated to the “RECAP” database, assembled as volunteers donated copies of PACER filings as they downloaded them.

Tim wrote a program that analyzed each PDF file, looking for the tell-tale hand-drawn rectangles that are a hallmark of poor redaction.

In a sample size of 1.8 million PACER documents, he found about 2000 documents with these rectangles. He narrowed that set to documents where these rectangles sat on top of text — and after checking the best candidates by hand — found 194 with failed redactions. Most of those (“about 130”) were from commercial litigation. In addition to the redaction mistakes caught by this program, there were about 1700 other redaction failures that had been caught before the documents were donated to RECAP. (( Why so many? A large number of the RECAP documents had been donated by Carl Malamud, who spent some time trying to remove the sensitive information. )) An overall ratio of 1 redaction failure per 1000 filings seems pretty low to me. I am curious how many of those 1.8 million documents were scanned from paper rather than generated as native PDFs. Native PDFs can be more challenging to redact, and the newer federal rules require them.

How courts can avoid this problem going forward

Tim has graciously donated this code to the public domain. As things stand, it requires a little technical savvy. (( If you see the word “perl” and think of a dromedary, then you should have no problems. Otherwise, you might want to wait for someone to add an interface on top of these raw scripts. )) But it’s available to any court officials who might want to fold it into their e-filing systems or to anyone else who wants to build a more user-friendly interface.

How you can redact properly

Redaction is covered in the blog’s resources page about how to make e-briefs that satisfy the Texas rules. There is a deeper discussion about strategies for redaction in the document called “Workflow for E-Briefs,” beginning at page 15 of the PDF.

The Judicial Commission on Information Technology and the Texas Office of Court Administration have issued a “Request for Information” about a new e-filing system for Texas courts. Some details are available on Carl Reynolds’ very helpful blog CourTex. I’m no expert on state procurement, but it appears this is the first step toward formulating a contract proposal with outside vendors.

The request describes a state-owned e-filing portal that would work for all Texas courts. Among other things, the Commission is said to be interested in:

A centralized document store to facilitate a subscription-based search of electronic court documents. In addition to a monthly subscription fee, the document store should also allow for a paid download of a document.

(It’s on page 4 of the PDF.)

To someone who spends quite a bit of time with open court documents — and just gave a CLE talk featuring a neat hack for searching appellate briefs — the idea of the courts putting these documents behind a pay-for-access system is pretty disheartening.

Read more about it

In March 2010, Rick Green surprised many by finishing first in a six-way race for the Republican nomination for an open Texas Supreme Court seat, forcing a runoff with Debra Lehrmann. In April 2010, Lehrmann won the runoff and serves on the Court today.

Last week, roughly a year after the April 2010 runoff, Rick Green filed a libel suit against several political detractors (including former Chief Justice Phillips and the Texas Association of Realtors), as well as the Texas Tribune and one of its reporters.

The original petition, filed in Hays County, contends that:

A damaged reputation and impressions and opinions of distrust, dishonesty and a lack of ethics and integrity has likely resulted in voters not voting for Green and in many people across Texas and the nation not wanting to have anything to do with Green.

Hat tip: Tex Parte Blog (Texas Lawyer)

I got an email today from the Clerk of the Court noting that the voluntary e-filing the Court announced last week had hit a small technical problem with the Texas.gov system.

The program was supposed to start on March 14, 2011. This technical problem will, as I understand it, push the schedule back by a few weeks.

I’ll let you know when the voluntary e-filing goes online.

Until then, counsel are still required to submit an electronic version by email (as before), along with the required number of paper copies.

I’m sorry to report that former Chief Justice Joe Greenhill, a fixture of the Texas appellate bar, passed away this morning. He was 96.

He served on the Supreme Court of Texas from 1957 to 1982, the last 10 of those years as Chief Justice. Since 1982, he had been in private practice in Austin.

The Court’s website contains this In Memoriam announcement, which contains a few colorful details.

You also can read a short biography on the UT Law School website or this longer biography from the American Inns of Court.