CHAPTER 16 Filing Procedures

• Jurisdiction: United States

CHAPTER 16

Filing Procedures

16-1 Introduction

The filing of documents has changed more than any other aspect of Texas appellate practice in the last decade. The new rules governing electronic filing now apply statewide. In some respects, they make appellate practice easier. In other respects, they make it more challenging.

As practitioners, we need to keep in mind the needs of judges and court staff who may read our filings on screen, rather than paper. The reading experience is different when the audience is reading on paper versus a PC screen. And the experience differs when the audience is reading on a PC screen versus a tablet. It is important to communicate with the courts in which you practice and find out how judges are reading briefs. Then, make sure you review your documents before filing, keeping in mind the media in which it is likely to be read.

16-2 Electronic Filing Rules

16-2:1 Attorneys Must E-File in Civil Appeals

Attorneys must e-file all documents through eFileTexas.gov, the e-filing portal provided by the Office of Court Administration. E-filing is still new in some appellate courts, and the rules remain in flux. Refer to the Texas Rules of Appellate Procedure (the most current version is available on the Texas Supreme Court website) and the applicable court's website for any requirements that may post-date this chapter.

Most e-filing rules are contained in the Texas Rules of Appellate Procedure. Minor differences remain. For example, a handful of courts still require paper copies. It is important to look at all of the local rules of the particular court to make sure that your brief will comply. And, it is always a good idea to call the clerk's office if you have any questions.

16-2:2 Exceptions

There are a few exceptions to mandatory e-filing.

16-2:2.1 Pro Se Parties

Pro se filers may e-file but are not required to do so.¹

16-2:2.2 Emergencies

Attorneys may be permitted to use alternative electronic transmission systems (e.g., fax) in the event of emergency. Check the local rules of your court.

16-2:2.3 Sealed Materials

Documents filed under seal, or subject to a pending motion to seal, or presented to the court in camera, or to which access is restricted by law or court order must not be e-filed.² If you plan to file sealed or restricted documents, contact the clerk's office, as each court has its own procedures.

Some clerks will instruct counsel to e-file sealed documents notwithstanding the prohibition in the rules. If you do not want to be found in contempt of a sealing order, or find your client's private information inadvertently posted on the court's website, insist on compliance with the rules and file your documents in hard copy only.

16-2:2.4 By Permission

Appellate courts may grant a motion for leave to file in paper form for a particular case if good cause is shown.³

16-2:3 Mechanism

16-2:3.1 Use eFileTexas.gov

E-filing must be done through eFileTexas.gov, the portal established by the Office of Court Administration.⁴

16-2:3.2 Select an EFSP

You must first register with an Electronic Filing Service Provider (EFSP), an approved list of which is on the eFileTexas.gov website. You will receive a confidential, secure username and password.

16-2:3.3 File Your Document

EFSPs have step-by-step instructions to guide you through the e-filing process. Only minimal technical knowledge is necessary, e.g., how to browse through your own computer files to locate your document. Following these directions will transmit your document to the EFSP, which will send it to eFileTexas.gov, which will in turn transmit it to the clerk of the court. Unless you use the State's free EFSP, eFile.TXCourts.gov, a fee is charged for e-filing in addition to the customary filing fee.

Finally, plan ahead. Even though filing is not technically complex, problems sometimes arise that need technical assistance. Do not leave your filing until the last minute.

16-2:3.4 Receive Confirmation

The e-filer should receive up to four emails after filing:

• the EFSP's acknowledgment of the e-filing;

• confirmation that the document was successfully transmitted to the court;

• proof of service, if used; and

• confirmation of the clerk's acceptance of the filing (which will include a link to the file-stamped copy) or a notice of rejection.

16-2:4 Format

Texas Rule of Appellate Procedure 9.4 governs the format of e-briefs, paper briefs, and paper copies of e-briefs.

16-2:4.1 Paper and Printing

Use white paper, 8½ by 11 inches. Printing must be a "distinct black image."

16-2:4.2 Margins

One-inch margins are required on both sides, top, and bottom.

16-2:4.3 Spacing

Double spacing is required for all text except block quotations, footnotes, short lists, and issues presented, which may be single-spaced.

16-2:4.4 Typeface

Proportionally spaced fonts must be no smaller than 14 point, except that footnotes can be as small as 12 point.⁵

16-2:4.5 PDF Requirements

Texas Rule of Appellate Procedure 9.4(j) requires a text-searchable portable document format (PDF). If you create the document with a word processing program, then the e-filed document may not be a scan of the original. Rather, you must convert the electronic version of the document directly into PDF format. If you must use scanned documents, make them text searchable using optical-character-recognition (OCR) software, such as Adobe Acrobat, and use a resolution of 300 dots per inch (dpi). The document must not be locked.

16-2:4.6 Technology Standards

All e-filed documents must comply with the Technology Standards promulgated by the Judicial Committee on Information Technology and approved by the Texas Supreme Court. These can be found on the Court's website.

16-2:4.7 Maximum Word Count

Texas appellate courts now use word limits (not page limits) for briefs produced on a computer.⁶

In the courts of appeals:

• Appellant's and appellee's briefs; petitions and responses in original proceedings—15,000 words

• Reply briefs (including original proceedings)—7,500 words

• Motions for rehearing and responses—4,500 words

• Aggregate of all briefs filed by a party—27,000 words

In the Supreme Court:

• Petitions for review and responses, petitions and responses in original proceedings—4,500 words

• Reply briefs at petition stage and in original proceedings—2,400 words

• Opening briefs and response briefs on the

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