Revised Fact-Finding and Research Report and Recommendations

TEXASACCESSTOJUSTICECOMMISSION

STRATEGICPLANNING

REVISEDFACT-FINDINGANDRESEARCHREPORT ANDRECOMMENDATIONS

MARCH19,2024

EXECUTIVESUMMARY

The goalof theTexasAccess to JusticeCommission’s strategic planning is to achieve the highestlevelofaccesstojusticeforlow-incomeindividualsandfamiliesinTexas. Tohelp with thestrategic planning process, theCommission engaged the help oftwoconsultants, JohnTullandBruceBower,whoaretheauthorsofthisreport.

As a first step, the Commission undertook a fact-finding and research effort to identify elementsoftheaccesstojusticesystemthatitcanimproveonitsownorwithitspartners. This report reflects input from 292 responses to a survey conducted of individuals active inandfamiliarwithaccesstojusticeactivitiesandneedsinTexas. Italsoreflectsinsights gained from interviews by the consultants of 59 knowledgeable individuals regarding the Commissionandaccesstojusticeissuesinthestate.

Adraft report, dated February 22, 2024, was discussed at length by the full Commission on that date. This revised report reflects that discussion, clarifying some of the analysis regarding which there were questions and adding insights and emphasis from the discussion.

The Texas Supreme Court created the Commission in 2001 in an order that identified a needfor“leadership that is accepted by the various stakeholder organizations … and empowered to take action to [realize] equal justice for all in Texas.” Theorderdidnotdefine how that leadership should be exercised. It stated the expectation that the Commission would“serve as the umbrella organization for all efforts to expand access to justice”inthe stateand“as a coordinator to assist … in developing strategic alliances to effectively move ideas into action.”

The fact-finding and research stageoftheCommission’s strategic planningeffortwas not designed as an evaluation. It did, however, provide some insight into how the role of the Commissionastheumbrellaorganizationandcoordinatorhasunfoldedandhowtheplanningprocessmayfurtherdefineitsmostbeneficialrole.

TheCommissionhasa historyofsuccessfulendeavorssince itscreationby theTexas SupremeCourtin2001. Inthoseendeavors,theCommission’srolehasmostcloselyaligned withit beingthe“coordinator … [of] strategic alliances to move ideas into action.” The AccesstoJusticeCommissionworkscloselywiththeTexasAccesstoJusticeFoundation, theStateBarofTexas,andtheTexasLegalServicesCenterinconsideringaccesstojustice issues. TheTexasBarFoundationalsoinvestsinaccesstojusticeinitiativesandprograms.

The strong support the Commission receives from the Supreme Court of Texas has been keytoitssuccess.

TheCommissionhasstrongfinancialsupportfromtheleadershipoftheStateBarofTexas and is housed in the Bar with the LegalAccess Department. It could form stronger ties with components of the Bar including the Poverty Law Section, the Computer and TechnologySection,andtheYoungLawyersAssociation. ItsrelationshipwiththeFamilyLaw section has been strained over the years but has improved recently. Some initiatives suggestedintheinterviewsmayformabasisforcloserties.

ThisplanningprocessoffersanopportunityfortheCommissiontostrengthenitstieswith the Foundation and to clarify the most beneficial role for each. They have a history of successfulpartnershipeffortsinthepast. Thisplanningprocessalsooffersanopportunity andachallengefortheCommissiontoforgenewpartnershipswithotherintereststhathave notheretoforebeenwidelyactiveinaccesstojusticeeffortsinTexas.

The Commission’s role as the umbrella organization for access to justice efforts in Texas hasbeenlessclear. Theterm“umbrellaorganization”mayimplyanoversightresponsibility with a broad awareness of all access to justice activities in the state. It also suggests that stakeholders look to the Commission for guidance and insight regarding their contributionstoaccesstojusticeeffortinthestate.

Ifthatistheexpectation,theconclusionsfromthefact-findingandresearchcomponentof thisplanningprocesssuggestthattheCommissionneedstoengageinastrategytoraiseits profile. The Commission is not as widely known as might be expected in the access to justicelandscapeinTexas. Somepersonssurveyedandinterviewedprofessedtohavelittle knowledgeof the Commission and its work. Moreover, the Commissionwas reported by somenottobefamiliarwiththeworkandthechallengesofthelegalaidorganizationsthat form the core of service to low-income clients. This points to the need for a two-way communicationstrategy asonepossibleinitiativeinthestrategicplanningprocess.

Thisstrategicplanningprocess alsoaffords anopportunityfortheCommissiontocapitalizeon its operational strengths and to address someof its challengesthat are discussed in thisreport.

PotentialStrategicInitiatives

Thereportpresentsnine broadstrategicinitiativesthatitmaybeappropriatefortheCommissiontotacklethroughthisstrategicplanningprocess. Thereportdoesnotrecommend one initiative over another but does offer insights gained from the survey and interviews. ThereportleavestoalaterstageintheplanningprocessthedevelopmentofspecificstrategiestoaccomplishtheinitiativesthattheCommissiondecidestopursue.

Increased availability of lawyers for representation. Thereportnotesthatboththesurvey and the interviews raised the inherent limitations of self-help. The Supreme Court Order creating the Commission explicitly favored efforts to increase the availability of lawyers for full representation over self-help. The report suggests strategies that would increase

the availability of lawyers for representation and explore if there are ways to increase the viabilityofself-helpstrategies:

 Increasedprobonorecruitment,includingthroughlargelawfirms,corporatecounseldepartments,theFamilyLawSection,andotherSectionsoftheStateBar;

 FeeshiftinginfamilylawmatterspursuanttorelevantTexasstatutes;

 Limitedrighttocounselinitiatives,wherepossible;

 Supportforlow-feelawfirms;

 Increaseduseofdiscretetaskorunbundledrepresentation;

 Engagement of license paralegals and community justice workers, if approved by theSupremeCourt; and

 Increaseduseofmediation,whereappropriate.

Fundraising. Several fundraising initiatives are discussed, built around the compelling update to the Justice Gap to the effect that 92% of low-income persons and families who needlegalhelpcannotgetit. Thereportsuggests:

 Engaginglargecorporations,wealthyindividuals,andtheplaintiffs’bar;

 Undertakingaconcerted campaignto increase barduescheck-offsandtoimprove theprocessbywhichcheckoffsareaccomplished;

 Workingtoincrease cy pres awardsforfundinglegalaidservices;and

 Tappingintounusedcountylawlibraryfunds.

Communication and outreach. The report notes the recurring theme of the need for increased and improved communication on the part of the Commission. It cites three areas ofpotentialfocus:

 BroadcommunicationabouttheroleandactivitiesoftheCommission;

 Improved communication between the Commission and legal service providers; and

 Outreach to other institutions and interests to bring them into the access to justice foldinTexas,including o outreach to interests already aligned with access to justice efforts in the state, and o outreachtointerestsnotyetalignedwithaccesstojusticeefforts,toenlisttheir engagement.

Access to the courts. Several dimensions of the need to improve access to the courts are highlightedinthereport:

 In concert with the Office of CourtAdministration, continuation of the Commission’s efforts to address language access needs, including access for deaf persons, issuesthatthesurveyrankedsecondandthirdinimportancefortheCommissionto tackle;

 Further support for thecontinuation and expansion of remoteproceedings, the use of which has reportedly fallen off considerably to the detriment of low-income

litigantsinbothruralandurbanareas,iftheylackchildcareandtransportation,and areunabletotaketimeoffwork;and

 Supportfordevelopmentofplainlanguageincourtdocuments.

Rural access and “legal deserts.” ThenationwideandTexascrisisresultingfromthelack of lawyers in many rural areas was highlighted by many persons interviewed and ranked in the survey as the fourth most important issue for the Commission to address. Several possibleresponsesarediscussedinthereport:

 The role of law schools in supporting and encouraging graduates to work in rural areas;

 Theuseoftechnologytoallowlegalaidprogramsaswellasurbanandsemi-urban privatelawfirmstoexpandtheirpracticetoruralareas;

 Wideneduseofremoteproceedingsforlitigantsinruralareas;

 Theuseofmedical-legalpartnershipsinruralpublichealthfacilities; and

 Supportforuniformproceduresandforms.

Law schools. Eight law school deans and four clinical professors were interviewed and expressed strong support for the Commission playing a convening and coordinating role amongthe10Texaslawschools. ThereportfocusesonseveralareasofpotentialengagementbytheCommission:

 Conveningandcoordinatinganefforttodevelopanaccesstojusticecurriculumfor usebyalltenlawschoolstoencourageknowledgeofandcommitmenttoaccessto justicebylawgraduates;

 Law school pro bono, which is heralded as a significant means to instill in law studentsanappreciationforalawyer’sresponsibilityforaccesstojustice;

 Law school clinics, which are viewed by some as the most effective law school teachingtool,butalsothemostexpensive; and

 Internshipsandexternships,whichhavepotentialintheplacementoflawstudents inruralareas,aswellasotherpublic-interestactivities.

Client involvement. There was a strong interest among clients and client leaders interviewedin reviving aformerly strong tradition ofclient trainings and organizationalmeetingstosupport:

 Effectiveparticipationofclientboardmembersonproviders’boardsofdirectors;

 Effectiveengagementofclientcouncilsinthesupportofprograms;and

 Possibledevelopmentofaclients’BillofRights.

Technology. Technology is discussed in the report as a potential focus for the Commission’splanningefforts. Itinvolvedtwoseparateissues:

 Support for technology for use by legal aid providers to support their work and to reachouttoclients,includingconsiderationofthepotentialusesandrisksofAI;

 Focus on the challenge of the digital divide and how to reach out to persons who are unable to engage in computer-based access strategies, because of a lack of broadband, lack of computers and intimidation by technology, particularly among olderpersons.

Structural and operational issues. Thereportnotesthatmanyof thestructuraland operationalissuesdiscussedatitsoutsetmaybeaddressednaturallyintheconductofthestrategic planning effort. It notes, however, that there may besome value indirectly tackling someoftheissuesrelatedtothemission,visionandoperationoftheCommission,perhaps inaretreat. Amongtheissuesdiscussedare:

 ApossiblerenewalandupdatingoftheSupreme Court’sorder;

 ThefinancialeligibilitylevelofthetargetpopulationfortheCommission’swork;

 ThemakeupoftheCommissionandapossiblecommitteestructure;

 RelationshipwiththeStateBarofTexas;and

 Orientationofnewmembers.

FULLREPORT

BACKGROUNDANDINTRODUCTION

Objectivesoftheplanning

TheTexasAccess to Justice Commission has undertaken astrategic planning process, the overarchinggoalofwhichistofurtherthehighestlevelofaccesstojusticeachievablefor low-incomeindividualsandfamiliesinTexas. TheplanningapproachisdesignedtoidentifythemostcriticalneedsthattheCommissionwithitspartnerinstitutionshasthecapacity to affect and to develop strategies that the Commission can undertake to address those needs.

Fact-findingandresearch

The first stage of the process has been to identify the components of an access to justice systemthatknowledgeableindividualsidentifyas needingattention andthatare susceptible to strategies by the Commission to address on its own or with its partners. The factfinding and research have involved two steps. First, participants in the access to justice effort in Texas were surveyed to solicit their views regarding which elements of a fully

effectiveaccesstojusticesystemareimportantfortheCommissiontotackle.1 Therewere 292 responses to the survey, which was distributed to state and local bar leaders, judges, staff of legal aid programs, law schools, social service providers, public defenders, client leadersandleadersofkeyaccesstojusticeinstitutionsinTexas.

Followingcompletionofthesurvey,theconsultantsinterviewed59personswhoarefamiliar with access to justiceissuesinTexas and who would have a perspective regarding potentialstrategicplanninginitiativesundertakenbytheCommission.

Structureofthereport

ThisreportbeginswithabriefreviewofsuccessfulinitiativesoftheCommissionoverthe years to offer perspective on areas where it has excelled in the past. It then addresses structural and organic questions that were identified in the course of fact-finding and research. ItexaminestheresponsibilitiesassignedtotheCommissionbytheTexasSupreme Court and discusses areas where fact-finding and research indicate that the Commission has succeeded and areas where it has fallen short in accomplishing the Court’s charge. It considersotherorganizationalstrengthsandchallengesthatmightbedrawnonorcorrected inthestrategicplanningprocess.

The report then discusses potential broad areas of focus for strategic planning and offers insightssuggestedbyintervieweesand comments tothesurvey. Itdoesnotsuggestafull strategic approach to any of the possible initiatives since those will be developed in the nextstageoftheplanningprocess. ItisanticipatedthattheStrategicPlanningCommittee will review those initiatives in more depth and will recommend to the full Commission thoseitshouldundertakeintheplanningprocess.

SUCCESSFULUNDERTAKINGSOFTHECOMMISSION

Since its inception, the TexasAccess to Justice Commission has successfully undertaken manyinitiativesthathavefurtheredaccesstojusticeinthestate.

 Mostrecentlyin2023,attherequestoftheSupremeCourt,theCommissiondeveloped and approved recommendations for licensed paralegals to provide representation in limitedareasofpracticeandconsideredtheappropriatescopeofpracticeforparalegals in family law, housing and evictions, probate and estates, and consumer debt. It also developed, though did not approve a recommendation to the Supreme Court to allow non-attorneystohaveaneconomicinterestinentitiesthatprovidelegalservicestolowincomeTexans.

1 Thecomponentsweredrawnfromthe Justice for All criteriadevelopedbytheNationalCenterforState Courtstodefineafullyfunctioningstatewideaccesstojusticesystem. JFAGuidanceMaterials|Justice forAll(ncsc.org)

 Recently,theCommissionengagedinafilingfairnessprojectinconcertwithStanford Law School. The project was designed to increase access to justice by simplifying courtprocessesandenlistingtheuseoftechnology.

 TheCommissionhaslongchampionedtherightsofveteransthroughaVeteransCommittee that is composed of members who are very experienced and knowledgeable aboutveteransissues.

 The Commission has also, in concert with the staff of the State Bar’s Legal Access Department, supported pro bono. It offers the Corporate Counsel Pro BonoAward, sponsorstheProBonoSpringBreakandrecentlysponsoredavirtualprobonosummit.

 TheCommissionhaspromotedlawschoolcollaborationsthroughtheAccesstoJustice InternshipProgramandProBonoSpringBreak.

 TheCommissionhassupportedthedevelopmentofformsinnumerousaspectsoffamily law, such as divorce, custody, visitation, child support, paternity, legal separation, and authorization agreements for nonparent adult caregivers. Forms have also been developedinareasoflandlord-tenant,probate,andprotectiveorders. TheCommission developeda“TexasTransferToolkit”fortransferringahomesteadupondeathwithout havingtofileprobate.

 The Commissionhas worked to increasefederal funding forlegalaid servicesto lowincomeTexansthroughparticipationinABADaysandpursuedeffortstoincreasestate levelfunding for basic civillegalservices. ItsponsorstheChampionsofJusticeGala whichraisessignificantfundsforlegalaidservicesforlow-incomeTexasVeteransand supports the Champions of Justice Society as well as an annual Justice forAll Campaign.

 The Commission participated, with the Texas Access to Justice Foundation, in bulk purchasingofbasichardwareandsoftwareforalllegalaidprogramsandhassupported varioustechnologytoolsovertheyears.2

 The Commission studied and made recommendations regarding remote hearings and provisionsforindividualsunabletopaycourtcostsandsuccessfullysupportedlegislationtoincreaseaccessforlitigantswhospeakalanguageotherthanEnglish.

 TheCommissionhashonoredsupportforaccesstojusticethroughaseriesofawards.3

 The Commission, in partnership with theAmerican College of Trial Lawyers and the NationalInstituteforTrialAdvocacy,sponsorsatrainingacademyeachyearforattorneysworkinginlegalaidofficesorothernon-profitlegalservicesorganizations.

2 See,forexample,ResourcesArchive-TexasATJTechCenter

3 TheCorporateCounselProBonoAward,theDeborahG.HankinsonAwardfor localbarassociations, theLawSchoolCommitmenttoServiceAward,theLawStudentProBonoAward,theEmilyC.Jones LifetimeAchievementaward,theHarryReasonerJusticeforAllAward,andtheJamesB.SalesBootson theGroundAward.

 The LegalAccess Department with which the Commission shares staff organizes the annual Pro Bono Coordinators Retreat, for coordinators of private bar involvement. The Legal Access Division also puts on the Poverty Law Conference, which draws legal aid advocates from across thestate. ThePro Bono Coordinators Retreat and the PovertyLawConferencetraditionallyoccurinAustinwiththeConferenceimmediately followingtheRetreat.

 Overtheyears,Texashas,unfortunately,beenthetargetofnumerousnaturaldisasters, includingsuccessivehurricanes,firesandflooding. Legalaidproviders,supportedby the Commission, the Foundation and the State Bar of Texas have been exemplary in cooperatively addressing the legal and other support needs of victims of those tragedies.4

STRUCTURALANDOPERATIONALQUESTIONS

SupremeCourtExpectationsoftheCommission

TheCommissionwascreatedin2001followingastatewideplanningprocessthatbeganin 1999 and involved the Supreme Court, the State Bar ofTexas, theTexas EqualAccess to Justice Foundation, the Texas Bar Foundation and the state’s legal aid providers. The Court’sorderlaidoutasignificantandcentralrolefortheCommissioninfurtheringaccess to justice in Texas. The order noted that the statewide planning process that led to the creation of the Commission had found that “leadership that is accepted by the various stakeholder organizations committed to achieving full access, and empowered to take action is essential to realizing equal justice for all in Texas.” It did not define how that leadershipshouldmanifest,butitcalledfortheCommissiontobe“the umbrella organization for all efforts to expand access to justice … in Texas.” The order also called on the Commissionto “serve as a coordinator to assist… in developing strategic alliances to effectively move ideas into action.”

The fact-finding and research survey and interviews were not designed to evaluate the Commission. Nevertheless, they do provide some insight into the degree to which the CommissionhasachievedthevisionsetoutforitbytheSupremeCourtin2001.

Strategic coordination

The Commission has had notable successes5 and is generally well thought of. Its most successfulrolehasbeenincoordinatingwithothers.6 Ithasthreecriticalrelationshipsthat are key to its work. It is noteworthy that all three – the Supreme Court, the State Bar of

4 See,TexasDisasterLegalHelp (simplejustice.org)

5 SeethediscussionoftheCommission'sachievementsbeginningatp.6

6 TherewasconsiderablediscussionattheFebruary 22,2024meetingregardingwhattheSupremeCourt meantbytheterms"umbrellaorganization"and"coordinator."

Texas, and the Texas Access to Justice Foundation – are specifically identified on its webpage.

 TheSupremeCourt

ThereiswidespreadrecognitionofthestrongrelationshipbetweentheSupremeCourtand the Access to Justice Commission. Many persons interviewed identified it as the most important strength of the Commission. The relationship is grounded in the unflagging commitment of the Court to access to justice. The Chief Justice is recognized nationally asachampionforaccesstojusticeandthatcommitmentandtheCourt’stranslatestofirm supportfortheCommissionandforfundingforaccesstojusticeinitiatives,includingsupportforveteransandvictimsofsexualassault.

ThestrongtrustthattheSupremeCourthasintheCommissionisevidencedbyitsOctober 2022 request that the Commission develop recommendations for allowing non-attorney professionalstoprovidelimitedlegalservicesdirectlytolow-incomeTexansandfornonattorneystohaveaneconomicinterestinentitiesthatprovidelegalservicestolow-income Texans.

 TheTexasAccesstoJusticeFoundation

The Commission’s partnership with the TexasAccess to Justice Foundation has been effective over the years and stands to be strengthened further by the strategic planning process. Thereisanopportunitytoclarifythemostpropitiousroleplayedbyeachorganization andtheinterrelationshipbetweenthetwo.

The Foundation is described by many as the entity responsible for raising and dispensing moneyforaccesstojustice. TheCommission,inturn,isdescribedasthepolicyorganization,chargedwithresponsibilitytoidentifypolicyneedsandtoadvocateforthem. Infact, the demarcation is not sharp. The Commission does raise funds, for instance, with the annualGalaforwhichittakesprincipalresponsibility. Moreover,assuggestedlaterinthis report,theCommissionmaywellhaveinroadstofundraisingfromcorporationsandfoundationsthatmaygrowoutofthisstrategicplanningprocess.7

Similarly, the Foundation has been exemplary in using its credibility with programs and otherinstitutionstoinitiateprogramsthathavesignificantpolicyimplications. Anexample isitsfundingofkioskstosupportparticipationinremotehearingsbytechnologicallychallengedlitigants.

7 Seethediscussionoffundraisingatp.18.

ThisstrategicplanningprocessmayleadtheCommissiontopursueseveralstrategicgoals inwhoseoutcometheFoundationhasastronginterestandalikelyrolehelpingtoaccomplish. Cordial, supportiverelationshipsamongtheleadershipandotherkeypersonsassociatedwitheachorganizationportendastrengtheningofthepartnershipandaclarification ofthemostbeneficialroleplayedbyeach.

 TheStateBarofTexas

The State BarofTexas hashoused theAccess to JusticeCommissionand financed its operations,sinceitscreationbytheSupremeCourtin2001. TheleadershipoftheStateBar, including successivePresidents, haveconsistently supported the Commission. TheCommission shares staff and an Executive Director with the LegalAccess Department of the Bar.

The relationship with the State Bar of Texas is complicated. There are areas where there hasbeenconflictwithcomponentsoftheBaraswellasmissedopportunitiesforalliances. The historic opposition of the Family Law Section of the State Bar to the Commission’s initiatives to support underrepresented litigants in family law cases is well documented. Someintervieweesexpressedtheviewthattherelationshiphasimproved,particularlywith the involvement of members of the Section in the recent work of the Commission to developrecommendationsregardinglicensedparaprofessionals. Others,however,expressed the view that the relationship is still contentious and that a concerted effort needs to be undertakentoaddressit.

A strong suggestion was made during our interviews that the Commission should focus more resolutely on increasing the availability of lawyers, particularly through pro bono initiatives, rather than on self-help remedies.8 The focus on self-help remedies was seen by some family law lawyers as threatening to undermine the economic viability of their firms.



Newstrategicpartnerships

This strategic planning process offers an opportunity for the Commission to increase its strategicrelationshipswithotherinstitutions.

 It has already reached out to Texas’s ten law schools. The interviews identified numerouspotentialinitiativesinvolvingthecooperativeeffortsoftheCommission and the state’s law schools. Law school deans who were interviewed commonly embraced the idea of the Commission as a coordinator and convenor to support theirengagementinaccesstojusticeefforts.9

 Three groups in the State Bar of Texas were also identified in the interviews as having significant common interest with the Commission: The Poverty Law

8 Potentialinitiativestoaccomplishthisarediscussedlaterinthisreportatp.15.

9 Potentialstrategicinitiativesinvolvingthelawschoolsarediscussedbelowatp.25.

Section, the Computer andTechnology Section and theTexasYoung LawyersAssociation.10

 Two seniors groups also share possibly overlapping interests: the state and local areaagenciesonagingandtheTexasSilver-HairedLegislature,whichisauthorized bytheTexaslegislaturetodeveloplegislativerecommendationsrelatedtotheneeds ofseniors.11

 Anotherareawherethestrategicplanningprocessmayseeknewstrategicrelationshipsiswithlargecorporations,includingtheircorporatecounseloffices.12

Leadership role as the umbrella organization.

While the Commission has successfully carried out a coordinating role and is poised to expand that role, its role as “the umbrella organization for all efforts to expand access to justice in civil matters in Texas”islessclear. WhiletheworkoftheCommissionisknown bymanyintheaccesstojusticecommunity,asignificantminorityarerelativelyunfamiliar with it.13 More importantly, it is not perceived as being familiar with the work and challengesofthelegalaidserviceproviders.

The survey and interviews both reflected the lack of familiarity with the Commission’s workbysomeengagedinaccesstojusticeeffortsinthestate.

 One comment to the survey by a respondent working in a legal aid organization observed: “I only see a small amount of relevant info regarding your organization …. I do see the entire justice system though and no one is available to try to understand and implement necessary but unpopular solutions for the broken system.”

 Anothersaid:“When I read the report of the work of the Commission, I do not think that it is making significant progress in the areas outlined above. Further, the Commission is supposed to be the "umbrella" organization in the state and I don't see the Commission working with other legal aid or pro bono providers to enhance access to justice.”

 Anothersaid: “I do not know how to rate you on many of these questions. Perhaps this is on me for not knowing all that you do. Do you have a social media presence?”

 Yet another said: “I do not recall receiving any reports from the Texas Access to Justice Commission.”

10 Thepotentialfornewalliances,includingwiththesebarcomponentsisdiscussedbelowatp.21.

11 Seethediscussionatp.22

12 Potentialstrategicinitiativesinvolvingcorporationsandcorporate counselarediscussedbelowatpp.19 and16.

13 Morethantwothirdsofthesurveyrespondentsself-identifiedeitheras“Very familiar with all its work” (18.56%)or“Familiar with some but not all that it does”(49.48%). Butathird rangedfrom“Only know[ing] generally what it does”(19.93%)to“Know[ing] the Commission exists but not what it does” (6.87%)to“Hav[ing] not heard of the Commission”(5.15%). Morethan25%oftherespondentswho workfor alegalaidproviderexpressedlittlefamiliaritywiththeCommission.

 Andsimilarly:“I don't know enough of what the Commission does.”

 Arespondent from asocial service organization, put it succinctly: “This organization is not well known.”

SomeintervieweesandsurveyrespondentsalsoconfusedtheTexasAccesstoJusticeCommission with the TexasAccess to Justice Foundation. One comment to the survey made thisclear: “I am more aware of Texas Access to Justice Foundation, but I do not know how TAJC and TAJF relate nor where they differ.” The same confusion was demonstrated in someoftheinterviews. GreaterfamiliaritywiththeFoundationamongstaffoflegalaidis notsurprising,sinceitisamajorfunder.

Not every comment in the survey expressed a lack of appreciation for the work of the Commission. One person who works for a legal aid organization commented: “I see the Texas Access to Justice Commission as an entity that has statewide knowledge and reach. While legal aid serving organizations like ours work on the frontlines, the Commission can gather information and work to address the systemic issues and help disseminate information to the legal community and the community at large about the local organizations providing services.” Anotherrespondentfromalegalaidorganization,whoself-identified asbeingveryfamiliarwiththeworkoftheCommission,saidsimply:“Excellent at working to reduce barriers.”

WithregardtoCommissionmembers’knowledgeofwhatishappeningonthegroundwith legalaidproviders,theinterviewsencounteredasimilarperceivedlackofawareness. Both Commissionersandpersonsinfieldprogramsacknowledgedthatitwouldbebeneficialfor Commissionerstobemoreawareofwhatfieldprogramsdoandofthechallengestheyand theirclientcommunitiesface. Onepersonobservedthatthereis“no real way to report to the Commission what we do.” A related concern was expressed about the need for the Commission to be more familiar with what legal aid organizations cannot do because of federal and staterestrictions. Some current and formerCommissioners also lamented the general unfamiliarity with program operations and challenges. One Commissioner observed: “When I look at who is at the table, I just don’t see people who are actually doing the work.” CommissionersnotedthebenefitofrecentpresentationstotheCommissionby legalaidstaffonaspectsoftheirwork.

ThemutuallackofawarenessbysomeoftheCommission’swork,ontheonehand,andof the efforts and challenges of the legal aid providers, on the other, is a challenge. At a minimum, it limits the Commission’s ability to “identify and assess current and future needs for access to justice”and“monitor the effectiveness of the statewide system and services provided”aschargedbythe2001SupremeCourtorder.

It is important to note thatthesurvey and interviews found no inimical feelings about the Commission. TheobservationsregardingamutuallackofknowledgeoftheCommission’s and field programs’work points to a communication issue, not an underlying criticism of

whateachdoes. Improvingcommunicationsisonepotentialstrategicinitiativethatisdescribedlaterinthisreport.14

Specific charges given to the Commission by the Supreme Court.

The2001SupremeCourtOrdersetfortheightspecificresponsibilitiesofthenewlyformed commission:

“The Texas Access to Justice Commission will:

 identify and assess current and future needs for access to justice in civil matters by low-income Texans;

 develop and publish a strategic plan for statewide delivery of civil legal services to low-income Texans;

 foster the development of a statewide integrated civil legal-services delivery system;

 work to increase resources and funding for access to justice in civil matters and to ensure that the resources and funding are applied to the areas of greatest need;

 work to maximize the wise and efficient use of available resources, including the development of local, regional, and statewide coordination systems and systems that encourage the coordination or sharing of resources or funding;

 develop and implement initiatives designed to expand civil access to justice;

 work to reduce barriers to the justice system by addressing existing and proposed court rules, procedures, and policies that negatively affect access to justice for low-income Texans; and

 monitor the effectiveness of the statewide system and services provided and periodically evaluate the progress made by the Commission in fulfilling the civil legal needs of low-income Texans.”

Two suggestions were made during theinterviews that pertain to these assignedresponsibilities. The first was that the Commission should formally evaluate the degree to which it has accomplished these charges. This fact-finding and research stage of strategic planningwasnotdesignedasanevaluation,althoughitdididentifysomesuccessesandfailures relatedtothesecharges. TheCommissionhasworked“to increase resources and funding for access to justice in civil matters and to ensure that the resources and funding are applied to the areas of greatest need.” It has also developed and implemented “initiatives designed to expand civil access to justice”andhassuccessfullyworked“to reduce barriers to the justice system by addressing existing and proposed court rules, procedures, and policies that negatively affect access to justice for low-income Texans.”

Ontheotherhand,theCommissionhasnotundertakenaformalneedsassessmentto“identify and assess current and future needs for access to justice in civil matters by low-income Texans.” Nor has it developed and published a “strategic plan for the statewide delivery

14 Seethediscussionofcommunicationandoutreachatp.22.

of civil legal services to low-income Texans.” Theresponsibilityto“monitor the effectiveness of the statewide system and services provided” haslargely fallento theTexasAccess to JusticeFoundation in the course of its assuring proper expenditure and use of its funds inaccordancewithitsadoptedstandards.

The second suggestion, whichflows from this cursory reviewofthe eight Supreme Court charges,istoconsiderwhethertheSupremeCourt’sordershouldberenewedandupdated. Thissuggestionisconsistentwithsimilarconsiderationsmadein2021by Commissioners considering“AStrategicVisionandActionPlan.”15

OperationoftheCommission

The survey and interviews identified some areas where, as part of its strategic planning effort,theCommissionmaywanttoconsideroperationalandstructuralchanges.16

OnethemeinvolvedacriticismthatCommissionmeetingshavenotstrucktherightbalance between receiving reports from partners and discussing the information and possible actions to be taken. Several interviewees expressed that they felt too much time has been spentonreportsinthemeetings. Commentstothesurveyreflectedasimilarconcern,with onenoting: “The Commission devotes extensive meeting time to hearing reports from partners. Being well-informed, however, does not equal action.” Another suggested: “The Commission should be action-oriented. Reports from partners should be submitted in writing and limited to five minutes, unless there is a justifiable reason to extend that time.”

Theamountoftimedevotedtoreceivinginformationfrompartners–whichisanimportant dimension of the Commission’s work – and to reacting to the information and discussing if and how to act in response is a question of balance. That balance may shift naturally toward greater substantive and action focused discussion as a result of this planning process. This may occur both as the Commission decides where and how to focus its future workandasitreceivesandactsonprogressreportsregardingthestrategicplan. Itwillbe importanttomonitorthedegreetowhichCommissionersfeelithasstrucktherightbalance and that it continues to receive necessary information from his partners while also maintaininganactionfocus.

Another theme reflected a view that, while the Commission has many committed, highly intelligent and engaged members, it does not have sufficient diversity of outlook or opinion. Some suggested a robust committee structure that invites participation from a broad spectrum of persons with professional, geographic, institutional, and personal diversity. Others suggested that if the Supreme Court Order is revisited and updated, consideration maybegiventoreevaluatingthemembershipoftheCommission.

15 Seethediscussionbelowatp.31.

16 Afulldiscussionofapotentialapproachtoaddressingtheseissuesinstrategicplanningcanbefound belowatp.30.

Athirdthemewasthatthereisagreaterneedfororientationanddeliberateon-boardingof newCommissionmembers. Memberswhodonothaveday-to-dayexperiencewithaccess to justice issues may bring a diversity of outlook, orientation. It is critical, however, to bring them up to speed, so they do not have to spend the first several meetings “figuring out what is going on,”asoneCommissionerputit.

POTENTIALSTRATEGICINITIATIVES

Increasedavailabilityoflawyersforrepresentation

ItisnotablethattheSupremeCourtOrderthatcreatedtheCommissionspecificallyfound that“poor people in Texas are underrepresented in that they receive limited advice … when they would in fact be better served by full representation….” The Commission’s website evokesthisideal:“All litigants should be represented by competent counsel. Itgoesonto note: “Until we can achieve that ideal, however, we must find ways to simplify our system for those who lack the money to hire a lawyer.”17

The research efforts of this planning process shed somelight on the challenging interplay between the obvious value of increasing the availability of lawyers for litigants and the appeal ofincreasingresourcesto assistunrepresentedlitigants. Astarkreality isthatlawyersarenotreadilyavailabletoprovidefullrepresentationtolow-incomeandmanymoderate-income people in need of legal help. In Texas and elsewhere, an increasingly large percentage of litigants are unrepresented on both sides of the matter.18 As a result, there has been increasing emphasis on support for unrepresented litigants.19 The survey and interviewsconductedaspartofthisplanningprocessfoundastrongconcernthatself-help materials are inherently inadequate to level the playing field for unrepresented litigants wheretheotherpartyisrepresentedbyanattorney.

Severalcommentstothesurveyspoketothisissue:

 Alegalaidadvocateobserved: “Study after study shows that litigants without counsel are at a severe disadvantage in every type of legal matter. This necessarily means that those who cannot afford counsel and are relegated to ‘self-help’ are largely doomed to fail. TAJC, indeed, Texas should lead the way in a right to counsel for everyone. If it is important enough for someone to litigate, then each side should have a trained, licensed advocate-- otherwise, it isn't justice.”

 Ajudge responding to the survey commented: “I work with many pro se litigants. They rarely understand what is happening in court. They do not know how to represent themselves in court. …. Pro se litigants do not know how to behave, get in exhibits, when to talk, how to ask questions, or even that they need to present "evidence" not conjecture. They are also confused about what relief they want.”

17 ProSeLitigants|TexasAccesstoJusticeCommission(texasatj.org)

18 See,Self-RepresentedLitigants|NCSC

19 See,forexample,theSelf-RepresentedLitigationNetwork,SRLN.

 Another judge observed: “There is inherent conflict between working to minimize the percentage of unrepresented poor litigants …[by providing representation] and working to improve the ability of self-represented people to feel they are effectively representing themselves…. …The former is far more important for improving access to justice.”

 Aleaderinalegalaidorganizationcommented: “While I realize that ‘right to counsel’is probably cost prohibitive …, [j]ustice cannot prevail in this system until the playing field is truly level, and as long as pro se litigants exist that field will continue to be unfair.”

 Alegalaidadvocatesaid: “Low-income communities need adequately-funded, fullservice legal assistance from real, professionally-specialized advocates, more than inexpensive limited-service measures like hotlines/kiosks etc. and short-term volunteer pro bono attorneys.”

Thechallengefacedbyunrepresentedlitigantswasemphasizedbyoneofthejudgesinterviewed, who observed that in 70% of the cases where tenants were represented, they avoidedeviction. Incontrast,mostunrepresenteddefendantswereunsuccessfulinprotectingtheirhome. Debtclaimcaseswereidentifiedasanotherareawhereitmakesademonstrabledifferencetohavealawyernegotiatingforthedefendant.

Theseconcerns arepart of a largerdebate regarding changesin thepractice oflawgenerally.20 Aconcernwasexpressedintheinterviewsthatalthoughself-helpmaterialsaretargetedforlow-incomelitigants,theyhavebecomeatoolusedbymany,includingsomewho arguablycouldaffordalawyer. Onepersoninterviewedobservedthatmanypersonsusing the forms, particularly if they involve division of property, pensions, custody and child support,donotarriveatanequitableresult. Sometimes,itisbecauseofadifferenceinthe power relationship in a marriage, where the dominant partner, often the husband, dictates whatgoesintheformstotheotherparty’sdetriment. Othertimes,itisbecausetheparties donotunderstandsubtlelegalissues,suchasthoseaffectingpensionsand property.

Avarietyofwaysweresuggestedtoincreasetheavailabilityoflegalrepresentationinboth familyandothermatters. Thefirst,ofcourse,istoincreasefundingforlegalaid,somore lawyerscanbehired. Strategiestoaccomplishthatarediscussedasaseparateinitiativein this report.21 Recent data regarding the growing justice gap confirm, however, that there is unlikely in the foreseeablefutureto be adequate funding to pay forall thelawyers necessarytofilltheneed.

A second approach is to increase pro bono substantially. Two other possible initiatives were alsosuggestedduringthefact-findingandresearch: a)substantiallyincreaseduseof feeshiftingstatutes; andb)experimentationwiththerighttocounsel.

Other strategies to increase the availability of lawyers might also be explored as vehicles toovercomewhatsomeperceivetobetheweaknessofself-help. Thoseinvolvestrategies,

20 See,forexample,RichardSusskind,TheEndofLawyers?(OxfordUniversityPress,2008;revisedpaperback,2010);andRichardSusskind,Tomorrow'sLawyers:AnIntroductiontoYourFuture(OxfordUniversityPress,2013).

21 Strategiestoincreasefundingarediscussedatp.18.

forexample,toencouragewideruseoflawyersforlimitedrepresentationtoassistlitigants tohandletheircasewithprofessionalhelpatkeystages,whilehandlingthematterontheir ownwhentheyareable. Twostrategiesdiscussedareexpansionofsupportforsustainable, low-feelawfirms(incubators)andincreaseduseofdiscretetaskorunbundledrepresentation.

AttherequestoftheSupremeCourt,theCommissiondevelopedadetailed studyandrecommendationtopermittrainedparaprofessionals to providelimitedlegalservicesto lowincomeclientsindefinedpracticeareas. TheSupremeCourtisconsideringtherecommendation which contemplates licensing paralegals or community justice workers to provide legal representation in family law, probate and estates, and consumer-debt law. IftheSupreme Court adopts or modifies the recommendations, the Commission’s strategic planning efforts may consider specific ways that the licensed paralegals or community justice workersmightbeusedtomeettheneedsdiscussedinthissection.

Finally, a planning initiative to explore ways to address the problem of the lack of representationandtheperceivedlimitationofself-helpmaterialsmaydevelopplanstoincrease theuseofmediationinappropriateareas.

Eachofthesestrategiesisdiscussedbelow.

Increased pro bono. Earnesteffortstoincreasetheavailabilityofprobonolegalhelpwill continue to be an essential ingredient of efforts to increase access to justice in Texas. Strongsupportwasvoicedinboththesurveyandintheinterviewsforstrivingtoincrease probono. Onecommenttothesurveystated:“Expanding Support for Pro Bono Assistance is and should be a priority as there are not enough service providers to offer services to the number of individuals who require services.” Another suggested: “Requiring a minimum number of hours of pro bono service per attorney to keep their license in good standing should be added as an annual criterion similar to CLE hour requirements.” Another suggestedalesscontroversialapproach:“…perhaps include a talk at every CLE event concerning the need to provide legal assistance and help for underserved populations - many attorneys know about this but many others simply don't think about it because they don't cross paths with the people who need these services.”

The greatest need for lawyers is in the family law area, the area with the greatest amount of controversy regarding self-help materials. Several persons interviewed thought that it wouldbefruitfulfortheCommissiontoengagetheFamilyLawSectioninajointchallenge to help solvetheproblemof the lack oflawyers by exploring how toincreaseits lawyers’ probonoinvolvement.

Several other ideas for increasing pro bono engagement in Texas were suggested by persons interviewed. One idea would be to recruit well-known lawyers with recognized expertiseinfieldssuchasfamilyortaxlaworwillsandestatestoserveasmentorsforyoung lawyerswhohaveagreedtotakeprobonocases. Thoughtfuluseoftechnologycouldmake suchmentorshipavailableoutsideoflargercitieswhichhousethelargerlawfirms.

Another suggestion is to convene a meeting of pro bono counsel from large law firms to shareinformationaboutwhattheydoandwhatissuccessful. Notonlymightsuchaneffort share best practices, but it might enlist a collective commitment to addressing the justice gap.

Asimilarideais toconvene corporatecounselto discussthejusticegapandtoenlist their support in undertaking pro bono projects to respond. Notably, the website ofthenational Association of Corporate Counsel (ACC.COM) has 30 pages of links related to pro bono effortsbycorporatecounsel. Therearemodelsnationallyofcorporatecounseldepartments adoptingaproject,suchasbankruptcies(Merck &Co.inUnionCounty,NewJersey)and foodstampeligibility(FordMotorCompanyinDetroit,Michigan).

Fee shifting. AnideathatemergedduringtheinterviewsistoencouragewideuseofTexas’ codeprovisionsthatpermitacourtinfamilylawproceedingstoorderthepartywithgreater resources to pay the attorney fees for the other party, if that party is unable to afford an attorney. TheFamilyCodeauthorizesbothtemporaryorders22 andfinalorders23 directing payment of attorney’s fees by one party to the other. The same is true in child custody matters.24

ThereisnotacultureinTexasofusingthesefeeshiftingstatutestoincreasetheavailability of private lawyers to provide representation. Nevertheless, there are other states where it iscommonpractice,anditsimpactispalpable. TherearemanyfactorsinTexasthatmight inhibitthewidespreadapplicationofthestatuteincaseswhereit mightbeused. Itwould take thoughtful strategies to engage the Supreme Court, members of the bar, trial judges, andjudicialeducatorsto encourage awideruseof thispotentialtooltoincrease representation. It is an area wheretheCommission could engage with the Family Law Section of the State Bar to consider the concept and whether it would be beneficial to encourage its wideruse.

ItshouldbenotedaswellthatTexashasaprovisionthatallowsacountyjudgeto“appoint counsel to represent a party who makes an affidavit that he is too poor to employ counsel.”25 Similarly, “A district judge may appoint counsel to attend to the cause of a party who makes an affidavit that he is too poor to employ counsel to attend to the cause 26 Such representation is unreimbursed, so presumably is likely to be ordered by a judge only in exceptionalcircumstances. Nevertheless,theseprovisionsmaybeusedtoappointcounsel incaseswherealow-incomepartyfacessubstantialrisk,ifunrepresented.

22 Tex.Fam.CodeAnn.§6.502. TEMPORARYINJUNCTIONANDOTHERTEMPORARYORDERS. “(a) Whileasuitfordissolutionofamarriageispendingandonthemotionofapartyoronthecourt's ownmotionafternoticeandhearing,thecourtmayrenderanappropriateorder,…(4) orderingpayment ofreasonableattorney'sfeesandexpenses.”

23 Tex.Fam.CodeAnn.§6.708. COSTS;ATTORNEY'SFEESANDEXPENSES. “(c) Inasuitfordissolutionofamarriage,thecourtmayawardreasonableattorney'sfeesandexpenses.”

24 Tex.Fam.CodeAnn.§106.002. ATTORNEY'SFEESANDEXPENSES. “(a) Inasuitunderthistitle, thecourtmayrenderjudgmentforreasonableattorney'sfeesandexpensesandorderthejudgmentand postjudgmentinterestto bepaiddirectlytoanattorney. (b) Ajudgmentforattorney'sfeesandexpensesmaybeenforcedintheattorney'snamebyanymeans availablefortheenforcementofajudgmentfordebt.”

25 Tex.Gov’tCodeAnn.§ 26.049.

26 Tex.Gov’tCodeAnn.§ 24.016.

In addition to these statutory provisions, a Texas statute authorizes the appointment of counsel in eviction appeals in certain circumstances, including were the party “has perfected the appeal on a paupers affidavit.” The appointed attorney is to serve pro bono “from a list provided by pro bono legal services program.”27

Right to counsel. Somestateshaveadoptedapolicyofprovidingattorneysforallindigent partiesinmatterswhereasubstantialrightisatstake. Texashasarighttocounselincases involving termination of parental rights. Some states have adopted a right to counsel in evictions. Acomment to thesurvey pointed out that in Harris County, Emergency Rental Assistance Program (ERAP) funds were used to create “an innovative ‘right to counsel’ initiative in JP eviction courts.… [T]his concept should be expanded statewide. It has been beneficial to both tenants and landlords.” A JP court created a program, which was described in the interviews, through which all indigent defendants in eviction matters were entitled to representation provided through local pro bono programs that agree to support theplan.

As partof an initiative to exploreand implement ways to increase the availability of lawyers for full representation, the Commission may find it fruitful to examine where civil righttocounselinitiativeshavesucceededinotherstates.28

Low-fee law firms. AnotherinitiativethattheCommissionmightconsideristoencourage lawfirmsthataredesignedtoproviderepresentationtoclientsonalowfeeorslidingscale basis. TheStateBarofTexascurrentlysupportstheTexasOpportunity&JusticeIncubator (txoji.com)whichseeksto“fill that gap between the citizens’need for justice and our profession’s need for employment opportunity—in brief, to meet the need for justice with the need for opportunity.” Its mission is to “Expand access to justice by supporting Texas lawyers who are building sustainable law practices serving low incomeand modest-income Texans.” Themodeluses technology, alternative fee arrangements and otheroptions “beyond the traditional billable hours.” So-called incubator models havegained national attention in recent years and the lessons learned may provide valuable supportive guidance foranexpandedeffortinTexas.29

Increased use of discrete task or unbundled representation. Arelatedinquirywouldexamine the viability of increased discrete task (unbundled) representation as a feature of a practice that seeks to serve low-income and modest income clients. Aprobono initiative might be built around a plan that offers the volunteer attorneys a means to provide assistance for a limited purpose. Nationally, there are firms and legal aid programs that regularly offer representation for discrete tasks, agreeing with the client in which parts of a matter the attorney will directly represent the client and for which parts the client will be responsible, with the support and help of the attorney. The Texas State Law Library

27 Tex.Gov’tCodeAnn.§ 25.0020.

28 WashingtonState,for example,hascreatedanevictiondefenseprogramunderwhicheveryindigenttenantsubjecttoevictionhasarighttocounsel. EvictionDefensePrograms|OCLA(wa.gov). Seealso, About|CivilRighttoCounsel|NCCRC.

29 See,LegalIncubators(americanbar.org)

30

describes this as a “concept [that] is fairly new in Texas, so there are not many resources yet.”

Theviabilityofdiscretetasksrepresentationdependsonitsacceptabilityundercourtrules, the expectations of judges in the courtroom and the clarity of expectations between the clientandtheattorney.

Limited license paraprofessionals. TheSupremeCourthasonlyrecentlyreceivedtherecommendations of the Commission regarding the possibility of permitting trained and licensed paraprofessionals or community justice workers to provide representation in discreteareasoffamilylaw,probateandestatesandconsumer-debt. Theareawiththegreatest unmet need is family law. If the court acts on the Commission’s recommendations, the Commission,aspartofitsplanningprocess,mayexplorewaysforthenewlycreatedclass oflegalworkerstobeusedtoaddresstheneedsinthisarea.

Mediation. Texaslawstronglysupportsalternativedisputeresolution(ADR),including mediation. TheCivilPracticeandRemediesCode states:“It is the policy of this state to encourage the peaceable resolution of disputes, with special consideration to disputes involving the parent-child relationship, including the mediation of issues involving conservatorship, possession, and support of children, and the early settlement of pending litigation through voluntary settlement procedures.”31

Mediationservicesaregenerallyavailableinlargercommunities.32 EveryTexaslaw schoolisinacountythatisservedbyapublic-facingdisputeresolutioncenter. The TexasRuralMediationServicesreportedlyprovidesmediationservicesstatewideina widearrayofcivilmatters.

Askilledmediatorcanhelpaddresspowerimbalancesandcanspotandattempttoaddressvariousexploitativebehaviorsofthekindnotedearlierinthisreport.33 Whenused incasesinwhichtherehasbeendisclosureofinformationasrequiredbyorsoughtunder theTexasRulesofCivilProcedure,mediationfromanexpertmediatorofapublicmediationservicemayresultinajustoutcome. Courtshavetheauthoritytoreferamatterto mediationandmaybeencouraged,throughjudicialtraining,todosowhenanapparent uncontesteddivorceappearstobeleadingtoanunjustorexploitiveresult.34 Amatter

30 GeneralInformation-LimitedScopeRepresentation-GuidesatTexasStateLawLibrary

31 Tex.Civ.Prac.&Rem.CodeAnn.§154.002. ThecourtsaddressedbyTexas’policyofsupportforalternativedisputeresolutionincludetheappellate,district,constitutionalcounty,statutorycounty,family law,probate,municipal,andjusticeofthepeacecourts. Tex.Civ.Prac.&Rem.CodeAnn.§154.001(1).

32 TheTexasStateLawLibrarymaintainsinformationaboutnumerouspublic-facingdisputeresolutionservices. See DisputeResolutionCenters-LegalAssistanceOrganizations-GuidesatTexasStateLawLibraryathttps://guides.sll.texas.gov/legal-assistance-organizations(lastupdatedFeb.22,2024,3:57PM).

33 Seethediscussiononp.16.

34 Tex.Civ.Prac.&Rem.CodeAnn.§154.021.

maybereferredformediationbyacourtorattherequestofapartyatvariouspointsin theprocedure,includingpretrialconference.35

Explorationofthepossibilityofexpandeduseofmediationmightalsoencourageconsiderationofmediationbylegalaidprogramsasawayofdealingwithcontestedfamilylaw matters,includingthosewithcontestedcustodyissues. ThereareavarietyofonlineCLE programsontheuseofmediationthatareavailablefreeofchargetostafflawyersofthe fivelargestlegalaidprogramsinTexas.36 ThehundredsofonlineCLEclassesspanfiftythree(53)practiceareas,includingADR.

Theremayalsobeopportunitiestoofferparticipationinrepresentationoflow-income partiesinmediationasaprobonoservicebycorporatecounselandattorneysinlargelaw firms,bysupervisedlawstudents,andbyotherprobonomembersofthelegalprofession. Giventheuseofmetricsfordeterminingchildsupportobligations,andgiven knownformulasforvaluingpensions,realproperty,vehicles,andotherassets,andgiven theavailabilityofdisclosuresundertheTexasRulesofCivilProcedure,theremayalsobe aroleforprobonocounseltoserveasprovidersofsecondopinions,beforeamediation agreementissigned. Thatwouldbeanextraprecautionagainstadvantagetakingprejudicingthelesspowerfulparticipantinmediation. Themediationagreementisalsosubjecttoreviewbythecourt.

Fundraising

In the survey conducted as part of this process, “Working to increase public and private funding for legal aid for low-income persons”wastheinitiativethatwasdeemedtobethe mostimportantfortheCommissiontotakeonintheplanningprocess. Therewasarecognition among many interviewees that although raising monies is a primary responsibility oftheTexasAccesstoJusticeFoundation,thisisanareawheretheCommissiononitsown orinconcertwiththeFoundationhasanimportantrole. Inadditiontoitscurrentresource developmentefforts,severalideasweresuggested.

One such initiative would be to reach out to large corporations to enlist their support for addressingtheJusticeGap,whichshowsthat92%oflow-incomeTexanswithalegalproblem do not have any help addressing it. One interviewee suggested Texas create its own “LeadershipCouncil,”akintothenationalgroupofbusinessinterestsbroughttogetherby theLegalServicesCorporation.

Anotherinitiativethatwassuggestedmorethanonceistoundertakeaseriouscampaignto increase the percentage of attorneys who participate in the bar dues check off to support legal aid. The percentage is very low and a joint campaign with the Access to Justice Foundation could be undertaken to educate lawyers about the shocking 92% justice gap andtherelativelypainlesswaytheycouldcontributetoaddressingit. Themeansbywhich

35 See,Tex.R.Civ.P.166(o).

36 DisabilityRightsTexas,LegalAidofNorthWestTexas,LoneStarLegalAid,TexasLegalServicesCenter,andTexasRioGrandeLegalAid.

dues are collected electronically that as a practical matter inhibits lawyers opting for the duescheckoffneedstoberedesigned.

Similarly, some suggested reaching out to a wider audience (like hedge fund billionaires) to explain the Justice Gap and enlist their financial support. The idea was suggested of enlistinga,perhapsunlikely,championwhoisawell-knownpersonage.

It was also suggested that more could be done to enlist support from private attorneys. It might be fruitful, for example, to cultivate more support from the plaintiffs’bar, which is agenerallywealthygroupofattorneys.

Court-approved cy pres awards are a further potential source of funding. Notably, TexasLawHelpwasoriginallyfundedbya cy pres award requestedbytheTexasequaljustice programs.37 ThereisexpertiseontheCommissioninrelationtoalandmarkTexas cy pres case.38 TheSupremeCourtAdvisoryCommitteeisconsideringachangetoRule42ofthe TexasRulesofCivilProcedure. IntheFebruary 22,2024meetingwheretheoriginalversionofthisreportwasconsidered,theCommissionapprovedamotiontorecommendthat Rule42toberevisedtorequirethatcypresawardsbegiventotheTexasAccesstoJustice Foundationfordistributiontoitsgrantees.

Finally, it was noted that an untapped source of money are unspent County Law Library funds that may be spent in certain circumstances to assist in the representation of lowincomepeople.39

Communicationandoutreach

Theneedforimprovedcommunicationwasarecurringthemeintheinterviewsandsurvey comments. Improvedcommunicationwas suggestedinthreediscrete,thoughinterrelated areas. ThefirstisbettercommunicationgenerallyabouttheroleandactivitiesoftheCommission. The second is communication between the Commission and legal aid providers regardingtheroleandoperationofboth. Thethirdareainvolvesoutreachtootherinstitutions and interests to bring them into the fold of those who care about and support access tojustice.

Broad communication about the role and activities of the Commission. Theauthorityof the Commission is largely hortatory. It seeks change on a variety of fronts that improves access to justice in Texas, but it has little direct authority to cause the change to happen. Its success, therefore, significantly depends on the degreeto which it is seen as an honest andcompetentbrokerregardingaccesstojusticeissues. Thelesswellitisknown,theless effectiveitcanbeencouragingchange. Itisparticularlyimportantthatitberecognizedby

37 Northrup v. Southwestern Bell Telephone Company,72S.W.3d16,22(Tex.App.–CorpusChristi2002, pet.dism’d).

38 See, Highland Homes Ltd. v. State of Texas,448S.W.3d403(Tex.2014).

39 Tex.Loc.Gov’tCodeAnn.§323.023.

the decision-makers that will affect the access to justice landscape on a statewide and a locallevel.

As a part of this strategic planning effort, the Commission may wish to examine ways to ensure an effective communication strategy. That generally involves a deliberate considerationoftheintendedoutcomeofthemessage,thetargetaudiencesand messagesappropriateforthem,theappropriatemediumtodeliverthemessagesandthepreferredmessengers.40

Improved communication between the Commission and service providers. Earlier this reportoutlinedtheneedforagreaterflowofinformationbetweentheCommissionandthe legal aid service providers.41 Some of the strategic initiatives outlined in this report may provideavehicleforanincreaseinsuchinformationthroughtheinvolvementofavariety offieldprogrampersonnelintheworkinggroupsthatdevelopthestrategic initiatives.

Inaddition,otherstrategieswerementionedduringtheinterviews.

 One idea is for the Commission periodically to hold its meetings in different parts of thestateandschedulevisitstolocalserviceproviders.

 Anotheristohavestafffromserviceprovidersofferpresentationsregardingtheirwork andtoinvitediscussionfromtheCommissionregardingtheissuesinvolved.42

 Athird is toinvolve staffof serviceproviders in the working committees of theCommission.

 AfourthapproachmightbetoincludemembersoftheCommissioninapartorallofa sitevisitconductedbytheAccesstoJusticeFoundationofitsgrantees.

 Afifthstrategy,discussedinthefollowingsubsection,istoestablishamoreformaland ongoingrelationshipwiththePovertyLawSectionoftheState BarofTexas, whichis comprisedsignificantlyoflegalaidstafflawyers.

 Asixth approach might be for the Commission to be provided with data gathered by theTexasAccesstoJusticeFoundationfromitsgrantees. TheFoundation,throughthe “Self-Assessment Report” (“SAR”), annually collects client-anonymous data regardingtheactivitiesofitsgrantees. TheSARcontainsinformationaboutthesubjectmatter of cases closed during the prior calendar year by each grantee, the level of services provided,and howmany caseswereclosedpercounty. Italsoreports how manyvolunteerattorneysclosedcasesfortheprogram. Inthepast,theFoundationhascollected datatrackingthereasonsthatlimitedrepresentationcaseswereclosedwithoutextended services. TheSARalsotracksthelanguagecapabilitiesofthegrantees. Ataminimum, the commission might benefit from a summary of the services being delivered statewideandcounty-by-county.

40 Seee.g.,How-Tos|VoicesforCivilJustice.

41 Seethediscussionaboveatp.8.

42 Thishashappenedrecently,andwasheraldedintheinterviewsashavingbeenveryuseful.

ArelatedstrategythatwassuggestedintheinterviewsandraiseaswellintheFebruary 22,2024Commissionmeetingistoundertakeastatewidelegalneedsassessment. Such aneffortwouldinvolvecommunicationabouttheworkoftheserviceprovidersandthe changesthatmightbeappropriatetoaddressunmetneedsthatareidentified.

Outreach to other institutions and interests to bring them into the access to justice fold in Texas. Suchaninitiativemayinvolvetwotypesofoutreach. Thefirstistoinstitutions that already have a potential connection with access to justice efforts inTexas, but which arenotnecessarilyinsyncwiththeCommission. Thesecondistoinstitutionsandinterests thatarenotconnectedwithaccesstojustice,butwhoseinvolvementmaybebeneficial.

Outreachtointerestsalreadyalignedwithaccesstojusticeefforts. Asnotedabove, therearetwosectionsoftheStateBarofTexasthatwouldseemtohaveacommoninterest withtheAccesstoJusticeCommission. ThesearethePovertyLawSectionandtheComputer and Technology Section. The former is made up principally of legal aid staff attorneysand addressesissues thataregermanetothem. Its interests,therefore,would appear tobeonallfourswithimportantareasoffocusoftheCommission.

The intersection with the ComputerandTechnology Section may bemore attenuated, but theimportanceoftechnologytoaccesstojusticeisclear,asevidencedbyalaterdiscussion in this report.43 The Section has reached out to the legal aid community by making its recentCLEprogramavailablecost-freetolegalaidstaff. Theprogramaddressedthelatest developmentsinartificialintelligenceinthepracticeoflaw,remotehearings,andtechtips, allrelevanttolegalaidlawyers.

Relationswith theFamilyLawSectionare morecomplicated,butasrecentdevelopments haveshown canbe more insyncthan theyhavebeenin the past. Members oftheFamily Law Section participated in the Commission’s Legal Services Working Group, which at the request of the Supreme Court considered proposed rules easing the participation of paralegals in the representation of clients without direct supervision of an attorney. That participation was beneficial in shaping the recommendation that was formally recommendedbytheCommissiontothehighCourt,andthathadthetacitsupportoftheFamily LawSection. Assuggestedearlierinthisreport,supportoftheFamilyLawSectionmight fruitfully be sought in pursuit ofthe increase of pro bono lawyers in the representation of clientswasmatrimonialissues.44

TheTexasYoung Lawyers association was also mentioned several times during the interviews as being a potential partner with the Commission. It was described as particularly effective in addressing issues that are within areas of concern of the Commission. There is an annual meeting of local bar leaders and it was remarked that that annual meeting wouldbeagoodeventfortheCommissiontoattendandbevisible.

43 Seethediscussionoftechnologybelowatp.28.

44 Seethediscussionaboveatp.16.

Outreachtointerestsnotyetalignedwithaccesstojusticeefforts. Anotherareaof potentialfocusoftheCommissioninitsstrategicplanninginitiativesistoreachouttoother interests, which have not been intimately involved in the pursuit of access to justice, but havepotentialsignificantsupporttooffer. Outreach,whichwasbeguntolawschools,has already pointed to significantly valuable participation by them in the effort, as discussed elsewhereinthisreport.45

Thesametrajectorymaybepossiblethroughoutreachtootherinterests. TheTexasHealth andHumanServicesCommissionhasalegalservicesdeveloperwhoseresponsibilityisto provide leadership in the development of legal services for persons sixty years or older. TheTexasSilver-Haired Legislatureis authorizedbytheTexaslegislaturetodeveloplegislativerecommendationsrelatedtotheneedsofseniors.

Elsewhere, this report discusses outreach to large corporations in Texas for fundraising46 and the engagement with corporate counsel to increase pro bono efforts.47 Those efforts may be undertaken as a part of a general outreach effort to increase the engagement of thoseinterestsinbroadssupportofaccesstojustice.

Accesstocourts

Language access. In the planning survey, language access and access for persons with a disabilitywereidentifiedasthesecondandthirdmostimportantareasfortheCommission toaddress. Thereisanintersectionbetweenlanguageaccessandtheneedforinterpreters forhearing-impairedlitigants. Theirimportancewashighlightedbothasanaccessto justiceandasacourtroom-efficiencyissue.

The Commission has long workedto address languageaccess challengesin thecourts. It successfullysupportedlegislationin2023thatexemptspartiesfromhavingtopaythecosts ofaninterpreteriftheyfileaRule145statementofinabilitytopaycourtcosts.

Althoughtheeffortsin2023weresuccessful,muchworkremainstobedonetoassurethat certifiedinterpretersareavailableineverycountyinresponsetothestate’slegislativemandate. Advocates supporting the access rights of persons with limited English proficiency or who are hearing-impaired report that it is a county-by-county process, since theTexas courtsystemisnotunified. ThechallengeisexacerbatedbytheshortageofcertifiedinterpretersandthemultiplicityoflanguagesextantinmanyofTexas’surbanareas,notablyin Houston. One thoughtful observer suggested that strategic efforts should be undertaken firstincountieswithahighlevelofneedlikeHarrisCountyorintheValley.

TheOfficeofCourtAdministration(OCA)hasaLanguageAccessDepartmentthatoffers resourcesandinformationtoassistcourtsinusinginterpreterseffectively. Italsoruns the Texas Court Remote Interpreter Services that provides free Spanish language interpreter

45 Seethediscussionbelowatp.25

46 Seethediscussionaboveatp.19.

47 Seethediscussionaboveatp.16.

servicesbytelephoneorvideoconferencinginshortnon-evidentiaryhearings. OCAisalso charged with monitoring the expenses of each county in providing certified interpreters. OCA appears to be a natural ally of the Commission to work with others to address the issue.

Remoteproceedings. Other issues associated with access to the courts were highlighted intheplanningsurvey. Supportfortheexpansionandeffectiveuseofremoteproceedings wasidentifiedasthetenthmostimportantissuefortheCommissiontoaddressintheplanning process. In spite of compelling evidence of the dramatic impact of remote hearings on access to the courts for litigants, many judges – even in rural areas – were reported to havegonebacktorequiringin-personappearancesinallproceedingsandallmatters. Dramatic evidence from Texas and other states during the pandemic demonstrates unequivocally that the need to obtain childcare, transportation, and to takeoff work prevents many litigants from appearing in civil, orevenin criminal matters. Given what is known about thestrikingimpactofremoteproceedingsonincreasingaccesstothecourts,theCommission’scontinuedsupportoftheircontinuationandexpansionappearswarranted.

Plain Language. The need for plain language in court documents also implicates meaningful access to the courts. It was noted in the survey that many low-income individuals do not read above sixth grade level. Given the fact that many low-income persons are unrepresentedincourtmattersinvolvingfamilylaw,evictionsanddebt,thereisincreasing national attention to have court documents written in plain language.48 The planning survey ranked “Supporting the conversion of court documents into “plain language” as the 15thoutof30thmost-importantinitiativefortheCommissiontoaddressinplanning.

Ruralaccess/“legaldeserts”

A challenge confronting the many rural counties in Texas is the lack of lawyers to meet generallegalneeds,letalonethoseoflow-incomepersons. A2018reportoftheStateBar of Texas found that 67 of Texas’s 245 counties have five lawyers or fewer, of which 17 counties have just one lawyer and six have no lawyers at all. Respondents to the survey conducted as part of this planning process ranked “Supporting the capacity of the system to meet the needs of rural Texas, including ‘legal deserts’” as the fourth most important issuefortheCommissiontoaddressinitsplanningefforts. Itisaproblemthatisnational inscopeandhasgarneredsignificantattention.49

Law schools. Therewasarecognitionamonglawschoolpersonnelwhowereinterviewed ofthepotentialimpactlawschoolsmighthaveontheproblem,althoughitisseenasbeing well beyond the reach of fellowships, externships and summer placements to solve. St. Mary’s College of law has recently developed the firstABAaccredited online law school inthecountry. Manyofitsstudentsrequireonlineaccessbecauseoflivinginmoreremote

48 SeeNationalCenterforStateCourtsdiscussionoftheimportanceofplainlanguageat PlainLanguage| NCSC.

49 LegalDeserts:AMulti-StatePerspectiveonRuralAccesstoJusticebyLisaR.Pruitt,AmandaL.Kool, LaurenSudeall,MicheleStatz,DanielleM.Conway,HannahHaksgaard::SSRN TheColoradoAccess toJusticeCommissionrecentlyobtaineda$650,000two-yearfederalgranttotacklethechallenge.

rural areas that are distant from the cities in Texas that have law schools. The online law school has just recently opened, so its impact remains to beseen. It is possible, however, that it will result in some lawyers from rural areas remaining in their communities, mitigatingthelackoflawyersthere.

Technology. Technology is seen as one important tool to bring legal resources to remote counties with few or no legal resources. It was noted, however, that areas that qualify as legaldesertsoftenhavelimitedwebaccesswithlowbandwidthandlimitedavailabilityof computers.50

Medical-legal partnerships. Medical-legal partnerships to deploy legal assistance to address thesocialdeterminants ofhealthhaveincreasinglybeenemployednationally and in Texas. Giventherural expertiseoftheTexasA&MSchoolofPublicHealth andthelegal expertiseoftheTexasA&MSchoolofLaw,theCommissioncouldexplorewhetherasynergy could be developed to address the lack of access to justice in legal deserts by means ofmedical-legalpartnershipsinruralhealthclinics.

Remote proceedings. Texaswastheepicenterofdemonstratingthevalue ofremotehearingsasmakingcourtaccessavailableinruralareas,whererequiringin-personparticipation hasbeenshowntoeliminateahighpercentageoflitigantsfromappearing. Inspiteofthis, however, it was reported that many judges have gone back to requiring in-person appearancesformostoralloftheirproceedings.51

Uniform forms and procedures. Another factor inhibiting the availability of legal representationinruralareasisthelackofuniformformsandproceduresacrossthestate. Alaw firm that may wish to locate in an urban or semi-urban area and represent clients across multipleruralcounties,includingthosethatqualifyasalegaldesert,findsitdifficulttodo sobecauseoftheplethoraofdifferentformsandproceduresineachcounty. Notwithstandingtheimpact,manyreportthestrongresistancetothedevelopmentofuniformformsand procedures that might facilitate access in rural areas. The fact thatTexas does not have a unifiedcourt systemexacerbatesthechallengeof developinguniformitythatmight facilitate the use of technology to support more rural practice. It is an area in which the Commission might work with others, including the Office of CourtAdministration, to encouragemeaningful change.

Texas Rule of JudicialAdministration 10 may afford the Commission an opportunity to work with the Office of CourtAdministration to increase the consistency of rules, forms, andstandingordersamongthecountiesofTexas. Paragraph(g)ofthatRule,andthecomment to it make clear, “a court cannot reject forms approved by the Supreme Court or organizations that report to the Supreme Court.” Astute,incrementaluseofRule10could lessen the difficulty posed by variances among counties regarding forms and procedures. Over time, some counties may appreciate new forms and procedures being developed for them,ratherthanhavingtocreate andmaintaintheirown

50 Challengesassociatedwiththedigitaldividearediscussedbelowatp.29

51 Remotehearingsarediscussedaboveatp.23.

Lawschools

AmajorityoftheTexaslawschooldeansandarepresentativegroupofclinicalprofessors wereinterviewedaspartofthefact-findingandresearchstageofstrategicplanning. There wasgeneralrecognitionthatwhiletheCommissionhasnothistorically beenanimportant playerwith thelaw schools, recently its presence has beenfelt. For some time, the Commission has offered two awards that honor law schools and law students.52 There was general recognition among the persons interviewedthattheCommissioncan have amore assertiveroleconveningthelawschoolsandcoordinatinginitiativesthatwillbenefitaccess tojusticeinthestate.

Texas has 10 law schools, which are very different from each other in their approach to education,themakeupoftheirstudentbodies,howpotentialemployersviewthemandhow well they are funded. There is universal agreement among them, however, that an important responsibility of legal education is to impart an appreciation for access to justice and for the professional obligations that lawyers have to society, including their pro bono responsibilities.

UntilCovid,thelawschooldeansdidnotmeetand,althoughalldescribetheirrelationships as cordial, they did not know each other well. The pandemic led to more frequent Zoom meetings to address issues associated with the bar exam. More recently, at the invitation of Harriet Miers, the Commission’s Chair, the law school deans, and others have participatedinonlinemeetings. Theconnectionswhichhavebeenmadethroughthosemeetings will supportfuture strategies involving the lawschools if the Commissiondecides to pursuethem.

Access to justice curriculum. Therewaswideagreementamongthelawschoolinterviewees that a possible project for the Commission in concert with law schools would be to support and coordinate the development of an access to justice module that could be used byalltenofthelawschools. Themodulewould“fit nicely”intothelawschools’requirementforABAAccreditationthatthey“provide substantial opportunities to students for the development of professional identity.” TheABAStandard303(b)encouragesreflectionby lawstudentson“what it means to be a lawyer and the special obligation lawyers have for their clients and society.”

The law school deans and clinical professors who were interviewed noted that different law schools might use such a module differently. It would be most useful, therefore, if it were “plug-and-play” that would have versatile uses. For example, such a module might be used in orientation for clinical practice, in first-year orientation, or as part of a fullblownpovertylawcurriculum. Amongotherthings,suchacurriculumpiececouldaddress the nature of poverty, the justice gap, and the commonality and cascading impact of legal problemsthataffectthepoor,andthemeansbywhichlawyerscanrespondtotheneed.

52 TheLawSchoolCommitmenttoServiceAward“honors a Texas law school for exemplary efforts in promoting pro bono service and educating their students about the many barriers in our justice system for low-income Texans.” TheCommission’sLawStudentProBonoAwardrecognizes“a Texas law student whose strong commitment to pro bono serves as an exemplar to other students and has a tangible impact on their community.”

Thedevelopmentofsuchacurriculummodulemightalsoleadsomeofthelawschoolsto develop a fuller curriculum on poverty law or access to justice. It is an area that seems idealfortheCommissionto functionas aconvenorand coordinator workingwiththelaw schools.

Pro Bono. Severallawschoolactivitiesdirectly supportaccessto justice. Thefirstisthe offeringofprobonoopportunitiesforlawstudents. Fiveofthelawschools,TexasA&M, TexasTech, St. Mary’s Law School, UNT Dallas College of Law, and SMU have a mandatoryrequirementandtheothersencourageit. In1996,SMUbecamethefirstlawschool inTexas to establish a pro bono requirement for graduation. Students are reported to frequentlyexceedthemandatoryrequirementastheybecome engagedinthework. Onepro bono program described the law school pro bono requirement as having had a “tidal impact”ontheprogram’sabilitytorecruitprobonolawyers.

TheUniversityofTexasasksstudentstosignthevoluntaryProBonoPledgetoprovide50 hours of pro bono work prior to graduation. Baylor Law, in its third year StudentAward Ceremony, specifically recognizesstudents as Pro Bono Honors for50 to99 hours of pro bono, Pro Bono Champions for over 100 hours, and Public Interest Fellows for over 200 hoursofprobonowork.

SeveralwayswereidentifiedthattheCommissioncansupportprobonoeffortsatthestate’s lawschools. OnepersoninterviewedopinedthattheschoolshavedoneapoorjobofsharingwhattheydowiththeirProBonoprojects. ItmaybeoneareawheretheCommission in its convening role can improve the quality of pro bono efforts in all the schools by orchestrating thesharing of successful policies and practices. It may also identify localpro bonoopportunitiesforlawschoolstudentsthatservelow-incomecommunitiesinTexas.

Legal Clinics. All of thelawschools offeran opportunity fortheir students to participate in a legal clinic as a part of their legal education. Some clinics are aimed at serving lowincome persons, like landlord-tenant, family law, consumer protection, immigration and veteransrights. Severalhaveinnocenceclinics. Otherclinicsofferexperienceintransactionallawsuchasbusinessformation,patents,trademarksandcopyrights. TheUNTDallas College of Law operates two Community Learning Centers in low-income neighborhoods in conjunction with LegalAid of NorthwestTexas. They provide services in landlord-tenant,familylaw,childsupport,childcustody,immigrationandwillsandprobate.

Manyfeltthatclinicsarethemosteffectivehands-onwaytoeducatelawstudentsandthat participating in them can have a lifelong impact on their commitment to public service work. Theyareachallenge,however, inthattheyare themostexpensivewaytoeducate. Oneprofessorcaneducateeighttotenstudentsinaclinic,whilemanymorecanbetaught inaseminaror lecture. Lawschools with a large endowment can absorbsuchcostsmore easilythanlesswell-fundedones,whichmustpaymoredirectlyfromtuition.

Several approaches were identified by which the Commission might assist in increasing the availability of clinics. Since the higher cost of clinics results from the supervisory responsibilities of theprofessor, one idea suggestedwashaving largelaw firms “adopt” a

clinicandprovidesupervisionforthelawschoolclinicians. Inotherstates,therehavebeen examplesofalegalaidprogramsponsoringaclinic.

Therewasalso discussion ofthepotential benefit oftheCommission seeking achangein thecourtruleregardingclinicalpractice.

Internships and externships. Law schools also provide their students with opportunities tobeplacedinlegalaidoffices,governmentlawoffices,publicdefendersandotherplaces wheretheygainhands-onexperience,andcanbeexposedtoaccesstojusticeissues. Paid externshipswerenotedasawaytoplacelawstudentsinruralareaswiththehopethatsome mightfindruralpracticeattractiveupongraduation.53

Clientinvolvement

Clientsandclientleaderswereinterviewedandwereaskedtocompletetheplanningsurvey asapartofthefact-findingandresearchstageofthisplanningprocess. Acommontheme in those interviews was a perceived lack of clarity about the role of client councils and clientsonproviders’ boards ofdirectors. Inthe past,there have beenrobust trainingsand organizationalmeetingsofclientcouncil andclientboardmemberslocally and statewide, but those have fallen off in recent years, in part due to the pandemic. The goal of having membersoftheclientcommunityonboardsofdirectorsistoensurethatastheboardsets policiesandoverseestheoperationoftheprogram,itisawareoftheperceptionsandneeds oflow-incomepersonsbeingserved.

The trainings that were held served the purpose of supporting client leaders in their leadershiproleandeducatingthemaboutthepossibilitiesandlimitationsofthelawinresolving issues experienced by low-income individuals, families, and communities. The trainings also empowered clients to be community advocates for support for legal aid. In the past, clients have been successfully enlisted to testify before the legislature regarding the importanceoflegalaidfunding. Clientleaderscanalsobeasourceofinformationaboutnew and emerging issues affecting low-income communities that might be addressed by legal aidorganizations.

Theinterviewssuggestedthatastrainingshavefallenoff,clientboardmembershaveoften served as liaisons between members of the client community seeking assistance and the legal aid programs from which they seek help. The role may be useful in helping some potential clients better understand how to seek services and, in the event, they are turned away, the reason they are not being helped. The role, however, does not fully serve the leadershipexpectationsandopportunitiesofhavingfullyengagedclientboardmembers.

Therewasastronginterestonthepartofclientleaderswhowereinterviewedinrestoring thetraditionofclienttrainingsandorganizationalmeetings. Suchtrainingscouldaddress itemssuchastheroleofaboardmember,financialoversight,howtoreadandusestatistical

53 Seethediscussionoflegaldesertsatp.23.***

reports regarding casework of the program, the role of client councils, and how to communicateandconnectwithorganizationsservingthelow-incomecommunity.

Onesuggestion proffered during theinterviews was for the Commission, with theparticipation of clients and perhaps in concert with the Foundation, to develop and adopt a Clients’BillofRights.

Technology

Another area for a potential initiative to be undertaken as a part of the strategic planning process is technology. The fact-finding and research efforts in this process identified two important themes. The first is the inherent valueof technology in supporting thework of legalaidprovidersandtheireffectiveinteractionwithcommunitiestheyserve. Thesecond isthechallengeofthedigitaldividethatinhibitstheparticipationofasignificantsegment of the low-income population, as technology becomes a more integral part of service deliveryandcourtoperations.

Supporting the effective use of technology in access to justice. TheTexasAccesstoJusticeCommissionhashadarichhistorysupportingtheeffectiveuseoftechnologybylegal aid providers inTexas. In thepast, itsolicitedthesupportof the ITsections ofmajor law firmsinthestatetodoaninventoryoftechnologicalcapacityamongthelegalaidprograms. ItthenpartneredwiththeTexasAccesstoJusticeFoundation,whichprovidedthefundsto bringtheprovidersinthestateuptodatetechnologically. Thesophisticationandfunction oftechnologyhascontinuedtoacceleratesincethatinitiativeandasimilarefforttosupport andexpandtheproviders’technologicalcapacitymightbeinorder.

During interviewing, support was expressed for centralized referral and intake portal to lessen the experienceof thosecalling legal aid bouncing from onesource of assistanceto another. The Foundation was reported to be considering such an undertaking. Effective technologywillberequiredtocreateandmaintainsuchasystem.

Arelated areaforinvestigation involves the potential impact, risks, and opportunity associated with AI. The survey’s responses rated “Examining the potential use of artificial intelligence to facilitate access and problem-solving” last in importance for the Commission to consider in strategicplanning. Several interviewees, however, disagreed and considered it important to pay close attention to it. The State Bar of Texas has a task force examiningtheissue,soabroadinquirywouldseemduplicative. Nevertheless,somenoted the risks and opportunities that are unique to low-income, unrepresented persons that shouldbeconsidered.

Onecomment in the survey painted anambitious picture. “I appreciate any study into AI and how it can help to solve some basic access to justice issues. It would be wonderful to have an LLM that is ‘trained’ with the statu[t]es of Texas (inclusive of local codes and ordinances) and the rules of each court/jurisdiction. A client could describe their legal issue, and it would assess the level of legal complexity. It could advise them on whether pro se representation is appropriate and/or refer them to a local law library and rules. It

could advise them that their issue was more complex and that they need to speak to an attorney and then it could ask some simple income questions, and then it could refer to legal aid/pro bono, a referral service, or a local bar. I know that this is pie in the sky, but that would lift a load off of local legal aid/pro bono organizations and could help us better use our resources.”

Arelated challenge and opportunity may exist in the courts. Texas was exemplary in the nation during the COVID crisis in adjusting to the need for remote hearings and in supportingthetechnologytoaccomplishthat. Sincethepandemichaseased,however,many courtshavegonebackentirelytoin-personhearings. Onecommentinthesurveyfocused on the challenge. “Courts need standardized procedures across the state. More importantly, they need to move forward and accommodate to what technology can offer. The insistence in not using technology cripples access to justice and the ability of people to resolve their legal matters without attorneys. People should be able to use Zoom to attend court, they should be able to message and chat with clerks to get questions answered easily.”

Obviously, the resources for technology and policy changes for its use in the courts will come through the Office of CourtAdministration and the Supreme Court. Nevertheless, the Commission may work with these partners to support the expanded useof technology toincreasecourtaccess.

WiththecoordinationoftheCommission,theannualPovertyLawConferencecouldhave asessiontoupdateattendeesonrecentdevelopmentsintechnology,andtheComputerand TechnologySectioncouldassistwithorpresentthatsession.

Support across the digital divide, including in remote rural areas and legal deserts. Technology is often touted as a tool to expand access to legal services for persons who have difficultyaccessingit,includinginremotelegalareasand“legaldeserts.”54 Texashasbeen atthecuttingedgeofmakingonlineservicesavailablethroughTexasLawHelpwhichprovidesguidance, includinginstructions,checklistsandcourtformsacross avarietyoflegal issues.55 TexasLawHelpalsoofferspersonswhoqualifyanopportunitytochatlivewitha lawstudent,paralegalor volunteerattorney.56 TheTexasLegalServicesCenterwith support from the Texas Access to Justice Foundation is developing a network of kiosks to allow persons without a computer to attend a virtual court hearing or video meeting, as wellastogetinformationaboutlegalproblemsandgetlegalhelp.57

Thesurveyandinterviewsnotedthe“digitaldivide”isasignificantchallengeinanyeffort tousetechnologytoincreaseaccesstojustice. Severalcommentstothesurveyemphasized thischallenge:

54 Seethediscussionoflegaldesertsatp.24.

55 See,Frontpage|TexasLawHelp.

56 See,AskaQuestion|TexasLawHelp.

57 See,VirtualCourtKiosks|TLSC.

 “Technology is most important on the provider-side of services because low-income clients often struggle with technology and because those that are competent with technology often have poorer quality / reliability connectivity and thus sometimes rely on in-person access to services”.

 “I think areas that emphasize access to courts and legal resources are crucial. I think it's important to keep the digital divide in mind especially when working with seniors”.

 “Not sure about technology as most of the low-income individuals, especially the older adults do not have access to technology or do they understand it. Might be a waste of time.”

 “As you expand technology, be cognizant of digital information accessibility (device and software based) for people with identified and unidentified disabilities.”

The concern with the digital divide led many persons interviewed to emphasize the importanceofthekiosksthatarefundedbytheTexasAccesstoJusticeFoundationandbeing developedbytheTexasLegalServicesCenter. Thesamesentimentwasexpressedincommentstothesurvey:

 “If remote hearings and online resources are to be increased, there must be a way for low-income Texans to have access to the technology to make this happen, and not just at the courthouse. Libraries, community centers, shelters, and other community locations will need to be equipped with technology to connect and conduct online legal business.”

 “A major issue is the access to technology. A lot of the clients that we serve do not have the knowledge to use some of the technology. Also, the lack of access to the technology without the burden of cost. So, the ability to print, fax, scan and copy documents to get them to the court is an issue to a lot of pro se litigants.”

Several options for placement of kiosks or similar capacities were suggested during the interviews. Oneinterestingideathatwaswidelyheraldedwouldinvolveplacementinthe TexasA&MAgriLife Extension Offices that are administered by TexasA&M University and are located in nearly every county. Those offices were described as being generally receptive to serving their counties in a variety of ways consistent with supporting such technology.

Other areas for possible placement of supported technology included law firms, law schools, bingo halls, senior centers, and barber and beauty shops. It is also noted that in someareas,accesstotheinternetforfamilieshasbeenincreasedbytheexistenceoftablets andcomputersprovidedbyschooldistricts.

Structuralandoperationalissues

At the outset, this report discussed several structural and operational issues regarding the Commission. Those included the degree to which it meets the leadership expectations of

theSupremeCourt,58 thestrengthsandchallengeswithitsprimarystrategicrelationships,59 and some operational issues.60 Many of the challenges, particularly those involving relationships withotherinstitutions, may beaddressed through a robust planning process that undertakessomeoftheinitiativesidentifiedinthisreport.

Somewhowereinterviewed,however,feltthatitmightbebeneficialtoengagedirectlyin conversationsabout the Commission’smission,vision,andmodeofoperation. Somefelt thattheCommissionshouldformallyevaluatethedegreetowhichithasaccomplishedthe charges assigned to it by the Supreme Court. There was some sentiment that the time is right to have a retreat. As one Commissioner put it “This is a time to be reflective about the Commission. The more we are integrated and clear about what we are, the better we can make decisions.”

These are not new questions for the Commission. In 2021, members of the Executive Committee considered a “Strategic Vision andAction Plan” that raised some of the same issuesthatarepresenttoday. Amongthequestionsthatthegroupconsideredwaswhether the Supreme Court’s Order needs to be renewed and updated. Similarly, the group contemplated the benefit of reevaluating the Commission’s stated mission and whether it fits withtheCommission’sactivities.

ThegroupalsoraisedthequestionofthepropertargetincomegroupfortheCommission’s work, the focus of which has been “the poor.” Two questions regarding the target group also surfaced in the recent interviews. The first is what income group constitutes “the poor?” Ambiguity in thedefinition ofindigencywas seenas creating tensions among the Commission’partners. Several comments to the surveysuggested thatcapping eligibility guidelinesat125%offederalpoverty,asopposedto200%,detrimentallylimitedtheCommission’sfocus. Thequestionwassometimesraisedintermsofabroaderquestionwhether the Commission’s purview should include moderate-income as well as low-income persons.

Asecondsetofquestionsraisedbythegroupin2021–whichwerealsoraisedintherecent interviews–involveswhetheritisdesirable tomaintainthecurrentstructure. Oneaspect of the question is whether the composition of the Commission provides a broad enough spectrum of opinion and input. The concern was raised in the context of three perceived needs:1)thevalueofmoreinputfromhands-onprovidersoflegalservices;2) greatergeographic distribution, particularly for a more rural presence; 3)and increased representation from both sides of the aisle in the legislature. Some in the interviews suggested that theseneedscouldbeaddressedbyamorerobustCommitteestructurethatinvolvespersons who are not Commissioners and includes a broad spectrum of experience and interests. Rural judges were identified in the February 22, 2024 discussion as a group that it would beparticularlybeneficialtohaveinputwiththeCommission.

58 Seethediscussionbeginningatp.7.

59 Seethediscussionbeginningatp.11

60 Seethediscussionbeginningatp.13.

Another question raised by some interviewees is whether the Commission should have more institutional independence from the State Bar in light of the limitations imposed by the 5th Circuit Decisions. This question implicates the staffing structure for the Commission and its long-range funding. The staffing and funding questions do not necessarily dependon agreaterindependence from theBar,theclose connectionwith whichwasfrequentlyidentifiedassignificantstrengthoftheCommission.

One operational need identified in the interviews is the development of a better means of orienting and on-boarding new Commissioners. It was suggested that it would be very helpfultohaveathree-ringbinderwithmaterials thatexplaintheroleoftheCommission. Such a bindercould include the Supreme CourtOrder, its missionand vision, its strategic alliances,itshistoricandcurrentinitiatives,thebackgroundofcurrentCommissioners,and its staff. An orientation package can bedeveloped irrespective ofthedegreeto whichthe otherstructuralandoperationalissuesareformallyaddressedinthisstrategicplanningeffort.

CONCLUSION

Thepurposeofthisreportistoprovideacompleterecordoftheinformationgatheredduringthefact-findingandresearchstageoftheTexasAccesstoJusticeCommission’sstrategicplanning. Oneimportantdimensionofthatinformationistooffercandidobservations abouttheCommission’sstrengthsandchallengesthatwillaffectthedevelopmentandimplementation of strategic initiatives to improve access to justice in Texas. Asecond is to presentpossible areasof focusfortheCommission’snextsteps. Thereportdoesnotsuggest which initiatives should be undertaken by the Commission – that is for the Commissiontodecide. Nordoesthereportdelineatethespecificstrategiesthatmightbedeveloped andimplementedtopursuetheinitiatives. The ideaspresentedinthisreportaredesigned tosuggestpotentialstrategicapproachestoeachinitiative. Thespecificstrategicstepswill bedevelopedinthenextstageoftheprocess.

ThegoalofthemeetingoftheStrategicPlanningCommitteeonMarch19,2024istoagree on which strategicinitiatives should be recommended to the Commission for its adoption asitsAprilmeeting. UponadoptionbytheCommission,workinggroupswillberecruited todevelopspecificstrategiestoaccomplishtheagree-uponinitiatives. Theworkinggroups willbeaskedtodetermine:

 Theobjectivefortheinitiative(WhatwillbedifferentforaccesstojusticeinTexas iftheinitiativeissuccessful?);

 Theactionstepstobetakentoaccomplishtheobjective;

 Whowillberesponsibleforeachactionstep;

 Thetimetablefortheirachievement;and

 Howsuccessinaccomplishingtheobjectivewillbemeasured.

The working groups will present their recommendations to the Strategic Planning CommitteeinAugust. TheStrategicPlanningCommitteemayasksomeoftheworkinggroups

to revise or further develop their report and recommendations, if the objectives, strategic steps,assignmentofresponsibilities,timetable,andmeanstomeasuresuccessarenotclear.

The working group’s reports will be considered by the full Commission in its October meeting. Based on the Commission’s discussion in its October meeting, a final strategic plan will be developed in the month of November with a clear delineation of objectives, actionstepsandbywhom,timetableandmeanstomeasuresuccessforeachinitiative. The strategicplanwillbeconsideredandadoptedbytheCommissioninitsDecembermeeting.