Untitled Texas Attorney General Opinion: KP-0476

December 4, 2024

The Honorable James D. Granberry
Nueces County District Attorney
901 Leopard, Room 206
Corpus Christi, Texas 78401-3681

Opinion No. KP-0476

Re: Whether a district clerk may refuse to electronically file a document in a criminal case
based on the district clerk’s opinion that the document fails to comply with the Judicial
Committee on Information Technology Standards (RQ-0543-KP)

Dear Mr. Granberry:

You ask whether a district clerk may refuse to electronically file a document in a criminal
case based on the district clerk’s opinion that the document fails to comply with technology
standards set by the Judicial Committee on Information Technology (“JCIT”). 1 You explain that
electronically filed documents in criminal cases are often returned by the Nueces County district
clerk’s office “for technical defects, such as the misspelling of a party’s name or incorrect court
designation.” Request Letter at 2. It is your understanding that the Nueces County district clerk’s
office is “refusing to file the document in the papers of the case until” the corrected documents are
submitted. Id. You believe this practice “is contrary to the duty of the District Clerk to file
documents tendered to it, and specifically violates the Texas Rules Governing Electronic Filing in
Criminal Cases.” Id. To provide context for your question, we briefly review some of the key
authorities governing electronic filing in criminal cases.

Article V, section 31, of the Texas Constitution makes the Texas Supreme Court
“responsible for the efficient administration of the judicial branch” and directs it to “promulgate
rules of administration not inconsistent with the laws of the state as may be necessary for the
efficient and uniform administration of justice in the various courts.” TEX. CONST. art. V, § 31(a).
Section 31 further provides that “[t]he legislature may delegate to the Supreme Court or Court of
Criminal Appeals the power to promulgate such other rules as may be prescribed by law or this
Constitution, subject to such limitations and procedures as may be provided by law.” Id. § 31(c).
Accordingly, the Legislature authorized the Texas Supreme Court to “adopt rules of administration
setting policies and guidelines necessary or desirable for the operation and management of the

See Letter from Honorable James D. Granberry, Nueces Cnty. Dist. Att’y, to Off. of Tex. Att’y Gen., Op.
1

Comm. at 1 (June 4, 2024), https://www.texasattorneygeneral.gov/sites/default/files/request-files/request/2024/
RQ0543KP.pdf (“Request Letter”).
The Honorable James D. Granberry - Page 2

court system and for the efficient administration of justice.” TEX. GOV’T CODE § 74.024(a). Should
such proposed rules affect the administration of criminal justice, the Legislature directs the Texas
Supreme Court to “request the advice of the court of criminal appeals before adopting” them. Id.
§ 74.024(b). The Legislature also authorized the Court of Criminal Appeals to adopt certain rules
in criminal cases, including rules that govern “the electronic filing of briefs, pleadings, and other
documents for capital cases in that court.” Id. § 22.1095(a); see also id. §§ 22.108 (regarding
appellate procedure), .109 (concerning evidence).

The Texas Supreme Court and the Texas Court of Criminal Appeals jointly approved
Statewide Rules Governing Electronic Filing in Criminal Cases (“E-filing rules”). 2 The E-filing
rules contain specific mandates, and further require all electronically filed documents to “comply
with the Technology Standards set by the [JCIT] and approved by the Supreme Court and the
Court of Criminal Appeals.” TEX. R. CRIM. E-FILING 2.2(4). The JCIT, in turn, is a legislatively
created fifteen-member body selected and appointed by the chief justice of the Texas Supreme
Court on the basis of “experience, expertise, or special interest in the use of technology in court.”
TEX. GOV’T CODE § 77.012 (b); see also id. § 77.011 (establishing the JCIT). State law directs the
JCIT, among other things, to “develop minimum standards for an electronically based document
system to provide for the flow of information within the judicial system in electronic form and
recommend rules relating to the electronic filing of documents with courts.” Id. § 77.031(5).

Both the JCIT technology standards and the E-filing rules address non-conforming
documents, which is the subject of your question. See Request Letter at 1. The JCIT technology
standards delineate the scope of a clerk’s authority regarding documents tendered for filing.
Section 4.8.3 of the JCIT technology standards provides that “[a] clerk must accept a document
tendered for e-filing unless specifically authorized not to accept the document(s) by statute” or
procedural rule for one of two listed reasons, either because: (1) the documents are filed under seal
or are presented to the court in camera; 3 or (2) the filer is a vexatious litigant and has not presented
an order from the local administrative judge permitting the filing. 4 TECH. STANDARDS, JUD. COMM.
ON INFO. TECH., § 4.8.3 (2024). In addition to acceptance or rejection for the specified reasons,
section 4.8.3 also refers to an additional option available to a clerk, which is to “return [the
documents] for correction.” Id. (noting that, “[a]bsent extraordinary circumstances, clerks must
accept, return for correction, or reject documents as so authorized” within a specified period).
Section 4.8.4 of the JCIT technology standards addresses the option of returning documents for
correction, explaining that “[a] clerk may request a filer to correct an e-filed document only for”
one of twelve specified reasons, which must be stated in the request with any supporting statutory

2
Joint Order Approving Rules Governing Electronic Filing in Criminal Cases, Misc. Docket No. 15-9205
(Tex. Oct. 1, 2015), Misc. Docket No. 15-004 (Tex. Crim. App. Oct. 5, 2015), https://www.txcourts.gov/media
/1104788/159205.pdf, amended by Joint Order Amending Statewide Rules Governing Electronic Filing in Criminal
Cases, Misc. Docket No. 17-9039 (Tex. Apr. 27, 2017), Misc. Docket No. 17-005 (Tex. Crim. App. Apr. 24, 2017),
https://www.txcourts.gov/media/1438082/179039.pdf; Joint Order Amending Rule 2.7, Statewide Rules Governing
Electronic Filing in Criminal Cases, Misc. Docket No. 24-9030 (Tex. May 28, 2024), Misc. Docket No. 24-004 (Tex.
Crim. App. May 28, 2024), https://www.txcourts.gov/media/1458615/249030.pdf.
3
See TECH. STANDARDS, JUD. COMM. ON INFO. TECH., § 4.8.3 (2024) (chart citing TEX. R. CIV. P. 21(f)(4)
and TEX. R. APP. P. 9.10).
4
See id. (citing TEX. CIV. PRAC. & REM. CODE § 11.103).
The Honorable James D. Granberry - Page 3

or procedural authority. Id. § 4.8.4. Relevant to your request, the clerk may return the document
for correction because it contains incorrect or incomplete information or because it is addressed to
the wrong clerk or location. See id.

Rule 2.6 of the E-filing rules provides that a clerk “may not refuse a document that fails to
conform to these rules.” TEX. R. CRIM. E-FILING 2.6. A clerk is permitted, however, to “identify
the error to be corrected and state a deadline for the party to resubmit the document in a conforming
format.” Id. Commentary to Rule 2.6 provides background:

The intent of this rule is to establish that a clerk may not refuse a
document for any perceived violation of [the E-filing rules.]
However, the rule permits a clerk the limited authority to identify
errors the clerk perceives with whether a filing complies with the
[JCIT] Technology Standards currently in effect. . . . The purpose of
the [correction] deadline is to allow for a non-conforming document
to be conformed to these rules.

Id. Rule 2.6 cmt. Thus, returning a non-conforming document for correction and providing a
deadline for the error to be corrected does not constitute a prohibited refusal.

Indeed, section 4.8.4 of the JCIT technology standards ensures that a filer making
corrections may “resubmit the filing with the original file date for a period not to exceed 72 hours
from the time the filing is returned for correction.” TECH. STANDARDS, JUD. COMM. ON INFO.
TECH., § 4.8.4 (emphasis added). Courts construing language identical to e-filing Rule 2.6 in the
civil context have concluded that while a clerk may not reject a filing due to formatting issues,
documents resubmitted in a conforming format in accordance with a clerk’s instructions are treated
as having been timely filed. 5 See, e.g., Whitelock v. Stewart, 661 S.W.3d 583, 594 (Tex. App.—El
Paso 2023, pet. denied); Nevarez L. Firm, P.C. v. Inv. Land Servs., L.L.C., 610 S.W.3d 567, 570
(Tex. App.—El Paso 2020), opinion after reinstatement of appeal, 645 S.W.3d 870 (Tex. App.—
El Paso 2022, no pet.) (explaining that “the ‘chain’ [is] not broken for purposes of calculating the
date of filing” when a corrected filing is returned according to the clerk’s instructions).

To summarize, a district clerk may not refuse an e-filed document in a criminal case based
on the district clerk’s opinion that the document fails to comply with JCIT technology standards.
However, a clerk’s return of documents for correction pursuant to e-filing Rule 2.6 and JCIT
technology standard section 4.8.4 does not constitute a refusal of such documents. This conclusion
is not inconsistent with a district clerk’s ministerial duty in a criminal case to “receive and file all
papers.” TEX. CODE CRIM. PROC. art. 2.21(a)(1); see also In re Escareno, 297 S.W.3d 288, 292
(Tex. Crim. App. 2009) (referring to a clerk’s “ministerial duties” and citing to article 2.21 of the
Code of Criminal Procedure).

5
See TEX. R. CIV. P. 21(f)(11) (providing that a “clerk may not refuse to file a document that fails to conform
with this rule” but instead may “identify the error to be corrected and state a deadline for the party to resubmit the
document in a conforming format”).
The Honorable James D. Granberry - Page 4

S U M M A R Y

A district clerk may not refuse an electronically filed
document in a criminal case based on the district clerk’s opinion that
the document fails to comply with technology standards set by the
Judicial Committee on Information Technology (JCIT). However, a
clerk’s return of documents for correction pursuant to JCIT
technology standard section 4.8.4 and Rule 2.6 of the Statewide
Rules Governing Electronic Filing in Criminal Cases does not
constitute a refusal of such documents.

Very truly yours,

KEN PAXTON
Attorney General of Texas

BRENT WEBSTER
First Assistant Attorney General

LESLEY FRENCH
Chief of Staff

D. FORREST BRUMBAUGH
Deputy Attorney General for Legal Counsel

JOSHUA C. FIVESON
Chair, Opinion Committee

BECKY P. CASARES
Assistant Attorney General, Opinion Committee