“A failure to plan on your part does not constitute an emergency on my part.” That saying applies to lawyers in Travis County district courts who attempt to use the emergency docket, which is called the duty docket, and are sometimes turned away. The duty docket can be an attorney’s saving grace, or it can be riddled with pitfalls. Understanding the duty docket can be an attorney’s greatest asset in an emergency.
Each week, a different judge is assigned to the duty docket, which handles emergency matters, such as temporary restraining orders, and routine matters, such as uncontested and agreed orders. An uncontested docket occurs twice daily for agreed orders, uncontested divorces and other matters upon which the parties have agreed that require a judge’s signature. The duty judge also handles motions for continuance on Thursday mornings on a first-come, first-served basis.
Here are three pointers to follow when client needs arise on an emergency basis.
• Do not assume the duty judge will grant a hearing on the duty docket. Pursuant to the local rules, the duty judge will hear emergency matters such as temporary restraining orders. By definition, TROs are mostly emergencies. However, not all requests for a hearing to appear on the duty docket are actually emergencies, and the judge will not grant all requests for a hearing. The staff attorney and judge review most requests first to determine whether the matter is appropriate for the duty docket or whether the parties instead should have set it on the central docket.
For example, when I was a staff attorney in the Travis County District Court, I would sometimes get calls from counsel who had waited until the last minute prior to trial to ask a judge hear a pretrial matter; then, they would request a hearing on the matter from the duty judge. Again, a failure to plan on a lawyer’s part does not constitute an emergency on a judge’s or court staffers’ part; therefore, the duty judge will not necessarily hear the matter.
The duty judge is not required to hear a matter where counsel failed to take action in time to obtain a ruling prior to trial — or prior to any other deadline, for that matter. Counsel’s failure to plan is not an excuse to obtain an emergency hearing on the matter. However, if new evidence arises or circumstances change that are out of the parties’ control, then the likelihood that the duty judge will hear the matter increases.
Each week, a different judge handles the duty docket. Some weeks, several judges might split the duty docket. Either way, a lawyer trying to determine who to call for a hearing should check the Travis County District Court website to see who the duty judge is that week.
Typical emergency hearings are those seeking ex parte or contested TROs, writs of attachment of minor children or writs of habeas corpusto return minor children, for example. Each judge has the discretion to determine whether a matter is indeed an emergency and therefore needs a hearing on the duty docket.
• Respect the uncontested docket. The duty judge handles agreed orders during the uncontested docket, which occurs twice daily from 8:30 a.m. to 9:20 a.m. and again from 1:30 p.m. to 2:20 p.m. The duty judge also handles uncontested divorces during this docket, and Travis County provides a staff attorney to review paperwork for pro se parties seeking a divorce. Also at the uncontested docket, parties may provide evidence required to obtain a judge’s signature on a default judgment.
The local rules provide for these two daily time slots for the hearing of routine matters, and they are the only times attorneys should seek a signature from a judge for uncontested matters. Previously, the local rules simply outlined the times for uncontested matters. But, savvy and clever attorneys who were apparently not available during those daily docket times would find a judge in chambers for a signature — or even in the hallway. Judges tried to dissuade attorneys from seeking a signature outside the uncontested docket times, and they eventually changed the rules to require it.
Local Rule 7.4 now states that all agreed orders must be presented “only at the times allotted” for the uncontested docket. Attempting to hunt down a judge in the courthouse hallways is officially a violation of the local rules.
• Agree, agree, agree. When parties need a hearing on the duty docket, the setting will be one that might violate the notice rules. Generally, setting a hearing requires an attorney to give three days of notice to opposing counsel. However, by its very nature, the duty docket might require less notice. To avoid violating this rule, a lawyer’s best option is to notify opposing counsel that she is seeking a hearing and obtain agreement to the setting.
Counsel should contact court staff with the estimated time announcement for the matter (the parties’ estimate of the total amount of the judge’s time they will need for both sides) and obtain from the court staff at least three times when the judge is available to hear the matter. The lawyer seeking the hearing should relay the court’s available times to opposing counsel, so they can choose one that fits within their schedules. This avoids the setting itself distracting from the merits of the emergency matter.
A lawyer who cannot obtain an agreement from opposing counsel should make as much effort as possible to notify opposing counsel and should be prepared to show the judge the notification attempts. The judge may try to call opposing counsel from the bench during the hearing to try to get a response over the phone. I’ve seen it happen, so counsel would be well-advised to do due diligence in attempting to get an agreement from opposing counsel.
The duty docket is inherently hectic due to the emergency nature of the matters. Attorneys should understand how this docket works and how to obtain hearings on it for their clients. Having these tips on hand will help when the emergency arises and time is limited.