Can a Texas district clerk reject a criminal court e-filing over a typo or wrong court designation?

Plain-English summary

The Nueces County District Attorney told the Attorney General that the county district clerk's office was returning electronically filed criminal documents for technical defects, like a misspelled party name or the wrong court designation, and would not file them in the case papers until corrected versions came in. The DA thought that practice violated the clerk's duty to file documents and the statewide rules for electronic filing in criminal cases. He asked whether a district clerk may refuse to e-file a criminal document based on the clerk's opinion that it fails to comply with the technology standards set by the Judicial Committee on Information Technology (JCIT).

The AG drew a distinction between refusing a document and returning it for correction. Under Rule 2.6 of the Statewide Rules Governing Electronic Filing in Criminal Cases, a clerk "may not refuse a document that fails to conform to these rules." But the same rule lets the clerk identify the error and set a deadline for the filer to resubmit in conforming format. The JCIT technology standards work the same way: section 4.8.3 says a clerk must accept a tendered document unless a statute or rule specifically authorizes non-acceptance (for sealed or in camera documents, or for a vexatious litigant without the required order), and section 4.8.4 lists the limited reasons a clerk may return a document for correction, including incorrect or incomplete information or being addressed to the wrong clerk or location.

So the answer has two parts. A district clerk may not flatly refuse a criminal e-filing based on the clerk's own view that it violates the JCIT standards. But returning the document for correction, with the specific error identified and a deadline to fix it, is not a prohibited refusal. The AG noted that a filer who corrects and resubmits within the allowed period (up to 72 hours) keeps the original file date, and that civil courts reading identical language have treated timely corrected filings as timely filed. This reading is consistent with the clerk's ministerial duty to "receive and file all papers" under Code of Criminal Procedure article 2.21(a)(1).

What this means for you

If you are a district clerk

The opinion holds you may not refuse a criminal e-filing because, in your judgment, it fails the JCIT technology standards. What you may do is return the document for correction under the limited reasons in JCIT standard section 4.8.4 (such as incorrect or incomplete information, or a filing addressed to the wrong clerk or location), state the specific error, and set a resubmission deadline. Returning for correction is not the same as refusing.

If you are a prosecutor or defense attorney filing documents

Based on this opinion, a clerk cannot keep your criminal filing out of the case papers simply for a technical defect. If the clerk returns it for correction with a stated error and deadline, fixing and resubmitting in conforming format within the allowed window preserves your original file date, so a timely-but-corrected filing is treated as timely.

If you administer a court's filing system

The opinion lines up the E-filing rules, the JCIT technology standards, and the clerk's article 2.21 duty to receive and file papers. The takeaway it draws is that the correction-and-deadline mechanism, not outright rejection, is the authorized way to handle a nonconforming criminal document.

Common questions

Q: Can a district clerk reject my criminal filing for a misspelled name or wrong court?
A: Not by refusing it outright. The AG concluded a clerk may not refuse a criminal e-filing based on the clerk's opinion that it fails the JCIT technology standards. The clerk may instead return it for correction with the error identified and a deadline.

Q: Is returning a document for correction the same as refusing it?
A: No. The AG concluded that returning a nonconforming document for correction under E-filing Rule 2.6 and JCIT standard section 4.8.4, with a stated error and deadline, is not a prohibited refusal.

Q: If I fix the document and resubmit, what filing date do I get?
A: The original one, if you resubmit in conforming format within the allowed period. JCIT standard section 4.8.4 lets a filer resubmit with the original file date for up to 72 hours after the document is returned for correction.

Q: Does this conflict with the clerk's duty to file all papers?
A: No. The AG explained the conclusion is consistent with the district clerk's ministerial duty to "receive and file all papers" under Code of Criminal Procedure article 2.21(a)(1).

Background and statutory framework

Article V, section 31 of the Texas Constitution makes the Supreme Court responsible for the efficient administration of the judicial branch and lets the Legislature delegate rulemaking power. The Legislature authorized the Supreme Court to adopt administrative rules (Tex. Gov't Code § 74.024(a)) and to seek the Court of Criminal Appeals' advice on rules affecting criminal justice (id. § 74.024(b)). The two high courts jointly approved the Statewide Rules Governing Electronic Filing in Criminal Cases, which require filings to comply with the JCIT technology standards (Tex. R. Crim. E-Filing 2.2(4)). The JCIT is a legislatively created body (Tex. Gov't Code §§ 77.011, 77.012(b)) directed to develop minimum standards for an electronic document system (id. § 77.031(5)).

On nonconforming documents, JCIT standard section 4.8.3 requires a clerk to accept a tendered document unless a statute or rule specifically authorizes otherwise, and section 4.8.4 lists the limited reasons a clerk may return a document for correction. E-filing Rule 2.6 says a clerk "may not refuse a document that fails to conform" but may identify the error and set a resubmission deadline. Courts reading the identical civil language (Tex. R. Civ. P. 21(f)(11)) have treated timely corrected filings as timely filed (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)). The clerk's underlying duty to "receive and file all papers" is ministerial (Tex. Code Crim. Proc. art. 2.21(a)(1); In re Escareno, 297 S.W.3d 288, 292 (Tex. Crim. App. 2009)).

Citations and references

Statutes and rules:
- Tex. Const. art. V, § 31 — Supreme Court's administrative rulemaking authority
- Tex. Gov't Code § 77.031 — JCIT duty to set electronic document standards
- Tex. Code Crim. Proc. art. 2.21 — district clerk's duty to receive and file papers
- Tex. R. Crim. E-Filing 2.6 — clerk may not refuse a nonconforming document; may return for correction

Key cases:
- Whitelock v. Stewart, 661 S.W.3d 583 (Tex. App.—El Paso 2023) — timely corrected filings are treated as timely filed
- In re Escareno, 297 S.W.3d 288 (Tex. Crim. App. 2009) — clerk's ministerial duties under article 2.21

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/ken-paxton/kp-0476
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2024/kp-0476.pdf

Original opinion text

KEN PAXTON
ATTORNEY GENERAL OF TEXAS

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

¹ See Letter from Honorable James D. Granberry, Nueces Cnty. Dist. Att'y, to Off. of Tex. Att'y Gen., Op. Comm. at 1 (June 4, 2024), https://www.texasattorneygeneral.gov/sites/default/files/request-files/request/2024/RQ0543KP.pdf ("Request Letter").

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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).

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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").

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SUMMARY

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