The judiciary committee that crafts new court rules in Texas has a new issue to mull: whether litigators who are expecting babies or adopting them should automatically get trial continuances.

Parental leave continuances are an emerging trend in the country: Florida's Supreme Court is currently weighing a rule change to allow them, and the American Bar Association passed a resolution in January urging other state supreme courts and federal courts to allow new litigator-parents to get trial continuances.

Many courts in Harris County already have local rules to grant automatic continuances for attorneys having or adopting babies. But if the Texas Supreme Court eventually approved a new rule of procedure on the topic, then these continuances would be expanded statewide.

Randy Sorrels State Bar of Texas President Randy Sorrels

"Trying to have a family and practice law is not easy. Trying to juggle that is a real art, [and] mostly the burden falls on the women in our profession," said State Bar of Texas President Randy Sorrels, who's raising an infant with his wife, and has been working on the initiative for more than a year. "This is one area that we can help relieve stress on Texas lawyers who are trying to have a child, or adopt a child. It's a common-sense approach."

The Supreme Court Advisory Committee must now consider the Texas Bar proposal, which says that regardless of gender, an attorney could get a continuance of a trial setting in connection with the birth or adoption of a child. The continuances would normally span for three months, but for good cause, an attorney could get an extension. If the expecting parent were the lead attorney in the case, then the continuance would be mandatory. But if that lead attorney were hired within just 10 days of a trial setting, judges would have discretion to grant or deny the continuance. Judges would also retain their discretion when the expecting parent was not the lead attorney.

The proposal explains what would happen if another litigant opposed the non-lead attorney's parental leave continuance. If the challenger showed substantial prejudice from the continuance, then the lawyer-parent would have to prove that he or she would face even more prejudice if his or her continuance were denied. A court would then have to issue a written order with its decision, explaining why it either granted or denied the continuance.

In Florida, opponents have emerged, saying that state's rule is too vague and takes discretion away from judges. On the other hand, supporters have argued the rule will curb a systemic, statewide problem with denial and opposition to parental leave continuances. The state's high court hasn't yet issued a decision.

The ABA's resolution on this issue said that all state supreme courts and federal courts should allow parental leave continuances if all parties consented, or if not, when granting the continuance would not cause substantial prejudice to another party, interfere with criminal speedy trial rights and more.

Inspired by Florida's debate on parental leave continuances, 127th District Judge R.K. Sandill of Houston issued a local court rule in July 2018 that allows any lead counsel to seek a continuance of a trial date for up to 120 days after the birth or adoption of a child. He said a crop of judges who won election in 2018 have issued similar local rules. Sandill said only a handful of attorneys have requested parental leave continuance so far. It's a great idea for the practice to expand statewide with a new rule of procedure, he added.

"I think most judges do it as a matter of course without a written rule," Sandill said. "The only reason we put it in writing and put it out there is to take away the anxiety."

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Read the proposed rule:

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