Texas State Supplement to Accompany

Civil Litigation 7E
Peggy N. Kerley Joanne Banker Hames, J.D. Paul A. Sukys, J.D., Ph.D.

Prepared by Peggy N. Kerley

Updated in 2013 by Jennifer Carpenter

Australia • Brazil • Mexico • Singapore • United Kingdom • United States

i
© 2015 Cengage Learning. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

ii

PART I Introduction to Civil Litigation

Contents

Introduction ............................................................................................................................................iv

PART I INTRODUCTION TO CIVIL LITIGATION CHAPTER 1 CHAPTER 2 Litigation and the Paralegal..................................................................................................................1 The Courts and Jurisdiction .................................................................................................................2

PART II INITIATING LITIGATION CHAPTER 3 CHAPTER 4 CHAPTER 5 CHAPTER 6 CHAPTER 7 Preliminary Considerations and Procedures.......................................................................................9 Investigation and Evidence .................................................................................................................10 The Complaint......................................................................................................................................12 Responses to the Complaint ................................................................................................................18 Motion Practice ....................................................................................................................................23

PART III DISCOVERY CHAPTER 8 CHAPTER 9 CHAPTER 10 CHAPTER 11 CHAPTER 12 CHAPTER 13 CHAPTER 13 Overview of the Discovery Process.....................................................................................................27 Depositions............................................................................................................................................30 Interrogatories .....................................................................................................................................35 Physical and Mental Examinations ....................................................................................................41 Request for Documents........................................................................................................................41 Request for Admission and the Future of Discovery ........................................................................45 Addendum ............................................................................................................................................47

ii
© 2015 Cengage Learning. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

Contents CHAPTER 2 The Courts and Jurisdiction

iii

PART IV PRETRIAL, TRIAL, AND POSTTRIAL CHAPTER 14 CHAPTER 15 CHAPTER 16 APPENDIX A Settlements, Dismissals, and Alternative Dispute Resolution ..........................................................49 Trial Techniques ..................................................................................................................................52 Posttrial Practice..................................................................................................................................60 Internet Sites Relating to Litigation (Federal and Texas Specific)..................................................72

© 2015 Cengage Learning. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

iv

PART I Introduction to Civil Litigation

INTRODUCTION
The Federal Rules of Civil Procedure govern civil litigation in the federal courts. These rules are applicable for all federal courts, including those within Texas. However, not all litigation takes place in federal court. Much of civil litigation is at the state court level, where state laws rather than federal laws control. This supplement is designed to familiarize you with litigation practice in the state courts of Texas. Specific Texas rules and procedures in particular areas of civil litigation are discussed here. When state rules differ from federal rules, that fact will be indicated.

iv
© 2015 Cengage Learning. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

PART I Introduction to Civil Litigation
CHAPTER 1

Litigation and the Paralegal
KEY POINTS
Civil Litigation in Texas State Courts is regulated by the following: • Texas Rules of Civil Procedure • Texas Rules of Civil Evidence • Texas Rules of Appellate Procedure • Texas Civil Practice and Remedies Code • Local Rules of Court • Texas Statutes and Codes • Texas Case Law opening words of Tex. Civ. Prac. & Rem. Code Ann. § 154.002: “It is the policy of this state to encourage the peaceable resolution of disputes... and the early settlement of pending litigation through voluntary settlement procedures.” The act permits a court, either on its own motion or on the motion of a party, to refer a pending litigation to ADR and to appoint neutral third parties to preside over the ADR procedures. The court is responsible for conferring with the parties to determine the most appropriate ADR method and subsequently notifying the parties of its determination. Once the court’s notice is received, the parties have 10 days to file a written objection to the notice of referral. A provision in the act allows avoidance of the ADR procedure if the court finds that a reasonable basis exists for a party’s objections. The procedures permitted under ADR are outlined in Tex. Civ. Prac. & Rem. Code Ann. §154.023–.027 and include, but are not limited to the following: 1. 2. 3. 4. 5. mediation; mini-trial; moderated settlement conference; summary jury trial; and arbitration

WHAT CIVIL LITIGATION IS
FEDERAL COURTS VERSUS STATE COURTS The litigation practice in Texas state courts is quite similar in many areas to the litigation practice in the federal courts. However, there are many differences between the two systems, including the time for filing or responding and the format of pleadings. The role of the paralegal in a litigation law firm is much the same whether the practice occurs in federal or state court.

ALTERNATIVES AND LIMITATIONS TO LITIGATION
ARBITRATION The process of arbitration involves submitting a dispute to a third party for resolution. For a number of years, arbitration has increasingly been recognized as a preferable alternative to litigation in Texas. In the 1987 session, the seventieth Texas Legislature enacted a number of statutes providing for alternative dispute resolution (ADR). The purpose of the Alternative Dispute Resolution Procedures Act is found in the

One important aspect of ADR is that the results of the chosen procedure are not binding on the parties, unless the parties stipulate in advance that the award shall be binding. Qualifications for the third parties who participate in ADR are outlined in Tex. Civ. Prac. & Rem. Code Ann. § 154.052. This section requires a minimum of 40 classroom hours of training in dispute resolution and 24 additional training hours if the party participates in parent–child disputes. The court has the discretion to apply other training and experience related to dispute resolution processes toward these requirements.

1
© 2015 Cengage Learning. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

2

PART I Introduction to Civil Litigation

Refer to Tex. Civ. Prac. & Rem. Code § 171 for additional sources of requirements for arbitration.

SECONDARY SOURCES Numerous secondary sources exist for litigation practice in the Texas court system. Frequently used state-specific litigation form books are listed in Exhibit 1-1. The State Bar of Texas has compiled numerous seminar course materials into excellent guidebooks for both attorneys and paralegals. Many publishers now provide their forms on the Internet or on computer disk, in addition to the written format.

SOURCES OF THE LAW
PRIMARY SOURCES The controlling law for Texas civil litigation is found in the Texas Constitution, Texas case law, Texas statutory codes, and various local rules of court.

CHAPTER 2

The Courts and Jurisdiction
KEY POINTS
• • • The Texas court system is patterned after the federal court system. Texas has four types of trial courts: municipal courts, justice of the peace courts, county courts, and district courts. The Texas Court of Appeals has jurisdiction over both civil and criminal cases. U.S. COURTS OF APPEAL The United States is divided geographically into 11 appellate districts plus the District of Columbia Circuit, which hears appeals from decisions of federal administrative agencies and the specially created Federal Circuit Court of Appeals. Texas is located in the jurisdiction of the Fifth Circuit Court of Appeals. The other states in the Fifth Circuit are District of Canal Zone, Louisiana, and Mississippi. The Fifth Circuit Court of Appeals sits in New Orleans, Louisiana. The primary function of the federal appeals courts is to review the decisions of the district courts within their circuits. Normally reviews are conducted by three-judge panels. In some instances, however, a party may petition the court for a hearing en banc: a hearing before all the judges of the circuit.

FEDERAL COURT SYSTEM
U.S. DISTRICT COURTS Each state has at least one U.S. district court. Based on the state’s population and size, as well as the court’s caseload, it may have more than one. Texas has four districts. Exhibit 2-1 details the composition of the U.S. district courts in Texas.

© 2015 Cengage Learning. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

Copyright © 2015 Cengage Learning®

CHAPTER 2 The Courts and Jurisdiction

3

© 2015 Cengage Learning. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

Copyright © 2015 Cengage Learning®

4

PART I Introduction to Civil Litigation

STATE COURT SYSTEMS
The state court system in Texas, a dual creation of the Texas Constitution and the Texas Legislature, is patterned after the structure of the federal system. The Texas Constitution created one Supreme Court, one court of criminal appeals, courts of appeals, district courts, county courts, commissioners courts, and courts of justices of the peace. The Texas Legislature has also exercised its authority to establish additional statutory courts. TRIAL COURTS There are four types of trial courts in Texas: municipal courts, justice of the peace courts (often referred to simply as justice courts or JP courts), county courts, and district courts. A further subdivision of the justice courts is the small claims courts. MUNICIPAL COURTS. Municipal courts have jurisdiction in criminal cases only. At least one municipal court of record is established for cities with a population of 1.2 million, and additional municipal courts may be created by a municipality’s governing body. As of January 1, 2014, there are 927 municipal courts in Texas. Trial in the municipal court is before a judge or sixperson jury. Either party may request a jury trial. An appeal may be taken to a county court if a party is dissatisfied with the municipal court’s decision. At the county court level, the trial is de novo; that is, a new trial occurs. From the county court level, an appeal is taken to the district court and from there to the state court of appeals. The final appeal is to the Supreme Court of Texas.

JUSTICE OF THE PEACE COURTS. Justice of the peace courts were created by Tex. Const. Art. 5, § 19, and Tex. Gov’t Code § 27.031 and 27.032. Texas counties are divided into precincts. A justice of the peace presides over the court at the precinct level. Justice courts are not courts of record, as there is no court reporter recording the proceedings and, therefore, no written record of the proceedings. Cases appealed to county court are tried de novo. As of January 1, 2014, there are 817 justice of the peace courts in Texas. Justice courts are granted original jurisdiction, both civil and criminal, when the amount sued for, exclusive of interest or penalty, does not exceed $10,000. COUNTY COURTS. In Texas, there are two types of county courts. Tex. Const. Art. 5, § 15, created a county court for each county; these are referred to as constitutional county courts. That section of the state constitution also authorized the legislature both to create additional courts and to set the jurisdiction for those courts. Courts created by the legislature include county courts at-law, often referred to as statutory or legislative county courts. As of January 1, 2014, there are 492 county courts in Texas. For additional information on the nature of county courts, refer to the statutes that created a particular court and the general enactments under Tex. Gov’t Code Ann. § 25.0003. DISTRICT COURTS. The third type of court in the state court system is the district court, which was created by Tex. Const. Art. 5, § 1. Tex. R. Civ. P. 15–21(b) govern both county and district courts.

© 2015 Cengage Learning. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

CHAPTER 2 The Courts and Jurisdiction

5

As of September 2011 there were 456 district courts in Texas. The district courts include special criminal, probate, family, and juvenile courts, all created by statute. Certain district courts have been established by Tex. Gov’t Code Ann. § 24.601 to serve as family district courts and hear matters regarding custody, visitation, and child support. APPELLATE COURTS There are 14 district courts of appeals in Texas. Each district is referred to as a Supreme Judicial District. The only city with more than one court of appeals is Houston. The specific number of justices on each court is set by statute and ranges from 3 to 13. Appeals for both criminal and civil cases are typically heard by a panel of three justices. Decisions of this panel are normally in written form. TEXAS SUPREME COURT The highest civil court in Texas is the Texas Supreme Court, which consists of nine justices, one of whom acts as chief justice. The justices are elected to staggered six-year terms in statewide elections. Since the 1980 amendment to the state constitution, the Texas Supreme Court hears only civil cases. TEXAS COURT OF CRIMINAL APPEALS After the constitutional amendment in 1980, the Texas Court of Appeals was authorized to hear both civil and criminal cases. On appeal from the criminal district court, a criminal case may be sent to either the Texas Supreme Court or the Texas Court of Criminal Appeals.

following is a summary of the subject matter jurisdiction of the Texas state courts. MUNICIPAL COURTS. Municipal courts, which are authorized to hear only Class C criminal misdemeanors, including traffic violations for which the maximum fine upon conviction does not exceed $500, and for which no jail sentence may be assessed, have been given concurrent jurisdiction with the justice courts in cases in which the maximum penalty to be imposed is $200. (See Tex. Code Crim. Proc. Ann. Art. 4.14.) They also hear cases involving violation of city ordinances, which may have fines up to $2,000 for certain offenses. JUSTICE OF THE PEACE COURTS. Justice of the peace courts have original jurisdiction over Class C criminal misdemeanor cases and exclusive original jurisdiction over a civil case if the amount in controversy is $200, exclusive of interest, unless another court has been granted jurisdiction over the subject matter. If the amount in controversy exceeds $200, but does not exceed $10,000, exclusive of interest, the justice of the peace court shares concurrent original jurisdiction with the district and county courts. Justice of the peace courts have jurisdiction over a criminal case if the fine does not exceed $200. Original jurisdiction over forcible entry and detainer cases, involving eviction from or possession of real estate (but not title to the real estate), is vested in the justice of the peace court regardless of the value of the land in controversy. The justice courts also have jurisdiction over foreclosure of mortgages and enforcement of liens on personal property if the amount in controversy is within the court’s jurisdiction. The issuance of peace bonds—orders by the court to prevent one person from approaching another person, based on previous problems between the parties—is an important jurisdictional matter for the justice of the peace courts. A person against whom a bond has been requested is required to post a bond that states that the person will not harm or destroy the property of the other individual for a period of one year from the date of the issuance of the bond. The amount of the bond is at the discretion of the justice of the peace court issuing the bond. The justice of the peace courts do not have jurisdiction over the following types of actions: 1. 2. 3. 4. 5. 6. issuance of writs of mandamus or injunction; suits filed by the State of Texas to recover penalties, forfeitures, and escheats; suits for divorce; suits for damages because of slander or defamation of character; suits for the trial of title to land; or suits for the enforcement of liens on land.

JURISDICTION
Jurisdiction is the authority or power of a court to hear a particular case. The jurisdictional limits are set by statute. The issue of jurisdiction has two prongs. First, the court must have jurisdiction over the subject matter of the case. Second, the court must have jurisdiction over the persons involved in the litigation. SUBJECT MATTER JURISDICTION IN THE STATE COURT If a court has subject matter jurisdiction, it has the power to hear a particular type of case. In the absence of that power, any judgment rendered in the case is void. A void judgment is not enforceable and is subject to challenge at any time. The laws governing the types of cases that can be brought in state court in Texas are often complicated. The

© 2015 Cengage Learning. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

6

PART I Introduction to Civil Litigation

Each justice of the peace also presides over a small claims court. This court shares concurrent jurisdiction with the justice of the peace court in the recovery of money claims not exceeding $10,000. CONSTITUTIONAL COUNTY COURTS. Tex. Const. Art. 5, § 16, grants the constitutional county courts original jurisdiction over civil cases if the amount in controversy exceeds $200, up to a maximum of $10,000. The constitutional county court also has been given the authority to issue writs of injunction, mandamus, certiorari, and other writs required to enforce its jurisdiction. The subject matter of the legislative county courts varies, as do the limits on the amount in controversy. Many county courts are authorized to hear cases that do not exceed $5,000. However, others have a limit of $50,000. In counties without a statutory probate court, county court at-law, or other statutory court with the jurisdiction of a probate court, constitutional county courts are authorized to exercise limited original probate jurisdiction. In the event the probate matter heard in the constitutional county court is challenged, a request may be made by either the judge or any party that the proceeding be transferred to the district court. (Tex. Prob. Code Ann. § 4C). Dallas, Houston, and several other large cities in Texas have separate probate courts. Smaller cities generally do not have probate courts. Criminal jurisdiction is granted to a constitutional county court only if there is no statutory criminal court in the county. In such circumstances, the constitutional county court may exercise original jurisdiction over misdemeanors punishable by fines only. Concurrent jurisdiction with a district court is granted to a legislative county court if the amount in controversy exceeds the jurisdiction of a constitutional county court. A constitutional county court also serves as an appellate court for cases arising in either the justice courts or small claims courts when the judgment exceeds $250, exclusive of costs. The review process is a trial de novo (Tex. Civ. Prac. & Rem. Code Ann. § 51.012). Jurisdiction is denied to the constitutional county court in the following areas, according to Tex. Gov’t Code Ann. § 26.043: 1. 2. 3. 4. 5. 6. 7. 8. suit to recover damages for slander or defamation of character; eminent domain matters; suits for the recovery of land; suits on behalf of the state for escheat action; suits for divorce; suits for the forfeiture of a corporate charter; suits for the trial of a right to property valued at $500 or more and levied on by a writ of execution, sequestration, or attachment; or suit for the enforcement of a lien on land.

DISTRICT COURTS. Tex. Const. Art. 5, § 8, grants to the district courts general jurisdiction over all proceedings except those granted exclusively to other courts (probate, family law, etc.). Thus, the majority of litigation in Texas state courts occurs in the district court. Jurisdiction in the district court may be exclusive, appellate, or original. Cases in which the amount in controversy exceeds $500 are within the jurisdiction of the district court. There is no maximum limit for matters to be heard in this court. The district court also has concurrent jurisdiction with justice courts if the amount in controversy exceeds $200 up to $10,000. If the amount in controversy in a case falls within the jurisdictional limits of two or more courts, the case may be filed in any of those courts (Tex. Gov’t Code Ann. §26.042(d), and 27.031). APPELLATE COURTS. In 1980, the Texas Constitution was amended, effective in 1981, to give the Texas Court of Appeals jurisdiction over criminal appeals, which had formerly been heard by the Texas Court of Criminal Appeals. This change became necessary because of the heavy backlog of criminal appeals. The one exception is the death penalty case, which may be appealed directly to the Texas Court of Criminal Appeals. PERSONAL JURISDICTION Personal jurisdiction over the defendant in a Texas state court action is easily established if the defendant is domiciled within the state. Problems arise when the defendant is domiciled outside the state but has some type of contact with the state so as to satisfy constitutional due process requirements. Texas case law is the best source for determining if the “minimum contacts” requirements to satisfy personal jurisdiction have been met. NOTICE. The exercise of personal jurisdiction over a defendant is dependent on proper notice of the action or service of process. What constitutes proper service for defendants domiciled in Texas is detailed in Tex. R. Civ. P. 103, 106, and 107. Service of process is discussed more fully in Chapter 5. STATE LONG-ARM STATUTES. The two major categories of nonresident defendants are the following (Tex. Civ. Prac. & Rem. Code § 17.041): 1. 2. individuals who are not residents of Texas; and foreign corporations, joint-stock companies, associations, or partnerships

Tests for establishing a nonresident defendant’s minimum contacts with Texas include the following (Tex. Civ. Prac. & Rem. Code § 17.042):

© 2015 Cengage Learning. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

CHAPTER 2 The Courts and Jurisdiction

7

1.

2. 3.

the existence of contracts, by mail or otherwise, with any Texas resident when either party is to perform the contract, either in whole or in part, in Texas; the defendant’s commission of a tort, in whole or in part, in Texas; and recruitment of Texas residents, either directly or through an intermediary in Texas, for employment in Texas or outside the state.

Service requirements for nonresidents are discussed in Chapter 5. CHALLENGING PERSONAL JURISDICTION In Texas, personal jurisdiction must be challenged by a special appearance, that is, an appearance made solely for the purpose of challenging the jurisdiction (Tex. R. Civ. P. 120a). The special appearance must be by a sworn motion filed prior to a motion to transfer venue or any other plea, pleading, or motion. However, a motion to transfer venue and any other plea, pleading, or motion may be part of the same instrument or filed subsequent thereto without waiver of such special appearance. “The issuance of process for witnesses, the taking of depositions, the serving of requests for admissions, and the use of discovery processes shall not constitute a waiver of such special appearance” (Tex. R. Civ. P. 1 20a(l)). The court determines the special appearance on the basis of pleadings, stipulations, affidavits filed by the parties, results of discovery, and any oral testimony. Any affidavits filed on behalf of a special appearance must be served at least seven days before the hearing and must be made on personal knowledge.

VENUE
STATE COURT VENUE The issue of venue in Texas has undergone drastic changes over the past 10 years. New procedural rules (Tex. R. Civ. P. 86–89) were developed to reflect the latest changes. The earlier Texas venue laws were patterned after the state’s Spanish civil law heritage and established venue in the county of the defendant’s domicile. Current venue law is reflected in Tex. Civ. Prac. & Rem. Code Ann. § 15.002(a). VENUE: GENERAL RULE. Except as otherwise provided by this subchapter of Subchapter B or C, all lawsuits shall be brought in the county in which all or part of the cause of action accrued or in the county of defendant’s residence if defendant is a natural person; in the county of the defendant’s principal office in this state, if the defendant is not a natural person; or if none of those apply, the county in which the plaintiff resided at the time of the cause of action.

However, there are numerous exceptions to this general rule setting forth venue in Texas. Refer to Tex. Civ. Prac. & Rem. Code Ann. § 15 for a partial listing of those exceptions. Nonresidents, corporations, partnerships, and counties, for example, enjoy exception status. This code section also establishes mandatory filing requirements, in the county where the land is located, for actions for recovery of real property; for establishment of interest in real property; for partition of title to real property; for removal of encumbrances from title to real property; or to quiet title to real property. Under Tex. Civ. Prac. & Rem. Code Ann. § 15.017, the plaintiff in a libel, slander, or invasion-of-privacy matter may elect to file in any of the following: (1) in the county where the plaintiff resides at the time of accrual of the cause of action; (2) in the county where the defendant resides at the time of filing suit; (3) in the county of any defendant’s residence; or (4) in the county of domicile of a corporation. Permissive venue is granted under Tex. Civ. Prac. & Rem. Code Ann. § 15.031, to an executor, administrator, or guardian. Such an action may be brought in the county where the estate is administered or in the county in which a negligent act or omission occurred. Tex. Civ. Prac. & Rem. Code Ann. § 15.032 establishes venue in insurance matters. A suit against a fire, marine, or inland company may be brought in the county where the insured property is situated. In the case of life, accident, or health claims, the suit may be brought in the county where the insurance company’s home office is located, the county where the loss occurred, or the county where the policyholder or beneficiary instituting the suit resides. An action for breach of warranty by a manufacturer may be brought in the county where all or a part of the cause of action accrued; where the manufacturer has an agency, representative, or principal office; or where the plaintiff resides. Tex. Civ. Prac. & Rem. Code Ann. § 15.035 regulates venue for contracts in writing and provides that, unless the contract permits performance in a particular county, suit may be brought in that county or the county in which the defendant is domiciled. If the action is based on the defendant’s contractual obligation arising out of the purchase of consumer goods, services, loans, or extensions of credit for personal, household, family, or agricultural use, suit may be filed either in the county where the defendant signed the contract or in the county where the defendant resides at the time of the suit. Venue for a corporation or association is based in the county where its principal office is situated; where all or part of the cause of action arose; or the county of the plaintiff’s residence at the time all or part of the cause of action arose if the company has an agency or representative there. However, if the company does not have an agency or representative in the county of the plaintiff’s residence at the time all or part of the action arose, then venue is in the county nearest where the plaintiff resided where the company did have an agency or representatives.

© 2015 Cengage Learning. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

8

PART I Introduction to Civil Litigation

In the case of foreign corporations doing business in Texas, suit may be filed in the county where all or part of the action arose or where the foreign corporation has an agency, representative, or principal office. If the business has no such agency, representative, or office in the state, then venue is in the county of the plaintiff’s residence. Texas case law holds that the county where the registered agent is located is the principal office. Venue of the main cause of action also controls the filing of counterclaims, cross-claims, and third-party claims. Tex. R. Civ. P. 255 provides that the parties may consent to venue. CHANGING VENUE Under the appropriate circumstances, venue can be changed. Tex. R. Civ. P. 86–89 set forth the requirements for a motion to transfer venue and the required accompanying affidavits. The defendant’s motion to transfer must be filed and served concurrently or prior to the filing of any other plea, pleading, or motion, except for a special appearance.

The motion to transfer must recite the reasons the action should be transferred to another county of proper venue. Reasons for transfer include the following: 1. 2. the county where the action is pending is not a proper county or mandatory venue of the action in another county is prescribed by a specific statutory provision, such as those discussed previously.

Verification of the motion to transfer is not required. However, the defendant may supply affidavits based on personal knowledge. A plaintiff need not respond to a motion to transfer. However, the defendant’s sworn allegations are taken as true unless specifically denied by the plaintiff. After venue allegations are denied, the plaintiff has the burden of presenting prima facie proof of the allegations by pleadings or supporting affidavits based on personal knowledge. Discovery is permitted in transfer-of-venue matters. The hearing is based on prior pleadings, affidavits, and discovery documents. No live testimony is presented.

© 2015 Cengage Learning. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

CHAPTER 2 The Courts and Jurisdiction

9

PART II Initiating Litigation
CHAPTER 3

Preliminary Considerations and Procedures
KEY POINTS
• • • • • An attorney must determine the existence of a cause of action prior to filing a suit. The statutes should be checked for the limitations on filing a particular type of lawsuit. An attorney’s conduct is governed by rules promulgated by the State Bar of Texas. Paralegals must be supervised by attorneys. An attorney may not split fees with a paralegal. The time frame within which a suit must be brought is contained in the statutes. Exhibit 3-1 lists several types of action and the requisite filing time. A statute of limitations may be suspended under certain conditions. For example, if a defendant is temporarily absent from the state, the running of the statute of limitations is suspended (Tex. Civ. Prac. & Rem. Code §16.063). The death of a plaintiff or defendant suspends the running of the statute for 12 months. However, if an executor or administrator of the decedent’s estate is approved and qualified by the court, the statute of limitations begins to run again from the time of the court’s approval (Tex. Civ. Prac. & Rem. Code § 16.062). The statutes provide for filing a counterclaim or crossclaim after the time for filing a separate action has expired (Tex. Rev. Civ. Stat. Ann. Art. 16.069).

DETERMINING THE EXISTENCE OF A CAUSE OF ACTION
Chapter 3 of the textbook discusses the necessity of determining that a case filed in federal court has merit and is not a “frivolous” law suit as defined by Fed. R. Civ. P. 11. State court practice mandates the same careful consideration prior to filing a lawsuit. Rule 3.01 of the state bar rules regulating the professional conduct of attorneys requires that “A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless the lawyer reasonably believes that there is a basis for doing so that is not frivolous.” The comments to the rule state that a lawsuit is frivolous if it contains knowingly false statements or facts. It is not frivolous simply because the facts have not been first substantiated fully or because the attorney anticipates developing vital evidence only by discovery.

ETHICAL CONSIDERATIONS IN ACCEPTING A CASE
The conduct of attorneys in Texas is governed by the state bar rules relating to professional conduct. An attorney who fails to comply with these rules is subject to the Texas Rules of Disciplinary Procedure. Additional rules regarding ethical considerations for attorneys are found in The Texas Lawyer Creed—A Mandate for Professionalism, adopted November 7, 1989. ETHICAL CONSIDERATIONS AFTER ACCEPTING A CASE State Bar Rule 1.15 details the ethical concerns an attorney should consider before accepting a case. An attorney should not accept representation in a case unless the attorney can perform the requisite services competently, promptly, and without improper conflict of interest.

TIME LIMITATIONS
The statutes of limitation adopted by the Fifth Congress of the Republic of Texas on February 5, 1841, were patterned after those of common law states. This concept prescribes certain periods for initiating a particular type of lawsuit.

© 2015 Cengage Learning. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

9

10

PART II Initiating Litigation

This rule also states the conditions under which an attorney may resign or be discharged from a representation. These conditions include the following: 1. 2. The attorney’s physical, mental, or psychological condition materially impairs the lawyer’s fitness to represent the client. The representation will violate State Bar Rule 3.08 (which prohibits the attorney’s representation in certain cases if the attorney knows or believes he or she may also be a fact witness in a case). The client has used the attorney’s services to perpetuate a crime or fraud. The client has failed substantially to fulfill an obligation to the attorney, such as payment of agreed-upon attorney fees, and has been given reasonable warning that the attorney will withdraw unless the obligation is fulfilled. The representation will result in an unreasonable financial burden on the lawyer or has been rendered unreasonably difficult by the client. The client insists upon pursuing an objective that the lawyer considers repugnant or imprudent or with which the lawyer has fundamental disagreement.

ATTORNEY FEES Texas Rule of Disciplinary Procedure 1.06 defines “reasonable attorneys’ fees” as a fee that would be reasonable for a competent private attorney under the circumstances. Relevant facts that may enter into the definition of “reasonable” include the time and labor required, the difficulty of the legal issues, the requisite skills for that service, a customary fee, the amount of the matter in controversy, the results involved, and the experience, reputation, and ability of the attorney performing the service. FEE-SHARING State Bar Rule 5.05 strictly prohibits the unauthorized practice of law. Only licensed attorneys may perform legal services and receive fees therefore. Paralegals may not participate in the fees earned by an attorney. SUPERVISING NON LAWYER ASSISTANTS State Bar Rule 5.03 governs the attorney’s responsibilities regarding the supervision of paralegals. This rule basically holds the attorney responsible for the paralegal’s violation of the State Bar Rules of Professional Conduct if the attorney orders, encourages, or permits the conduct.

3. 4.

5. 6.

CHAPTER 4

Investigation and Evidence
KEY POINTS
• In Texas, partnerships and corporations must furnish the secretary of state with the names and addresses of officers and agents for service of process. • • Assumed-name certificates must be filed in the county in which the business using the fictitious or assumed name is located. Interview techniques do not vary from one jurisdiction to another.

© 2015 Cengage Learning. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

Copyright © 2015 Cengage Learning®

CHAPTER 4 Investigation and Evidence

11

LOCATING FACT WITNESSES OR ELUSIVE DEFENDANTS
STEPS FOR LOCATING THE AGENT OF CORPORATIONS OR PARTNERSHIPS In Texas, corporations and partnerships are required to provide the secretary of state with the name and address of an agent for service of process. This information is readily available to anyone and can be obtained from the secretary of state’s office in Austin or by Internet services listed in Appendix A. ASSUMED-NAME CERTIFICATES When individuals, partners, or corporations operate a business under a fictitious or assumed name, they are required to file an assumed-name certificate with the clerk in the county in which the business operates. This certificate contains the name and address of the principals of the business and the name and address of the corporate agent for service. Information regarding assumed-name certificates is also available through Internet services listed in Appendix A. Exhibit 4-1 is an example of an assumed-name certificate offered for public use on the Harris County Clerk’s Office website.

EXPERT WITNESSES
Tex. R. Civ. P. 192.3(e) addresses the issue of expert witnesses in discovery and at trial, including the disclosure of the expert’s identity and subjects about which the expert will testify. This rule closely parallels the companion federal court rules, particularly in the distinction between testifying and consulting experts. Rule 192.3(e) contains major changes from the prior discovery rule relating to expert witnesses. This rule does not permit the discovery of the identity, mental impressions, or opinions of a consulting expert whose mental impressions and opinions have not been reviewed by a testifying expert. However, a party may discover the following information regarding an expert whose mental impressions or opinions have been reviewed by a testifying expert: 1. 2. 3. the expert’s name, address, and telephone number; the subject matter on which the testifying expert will testify; the facts known by the expert that relate to or form the basis of the expert’s mental impressions and opinions formed or made in connection with the case in which discovery is sought, and any methods used to derive them; the expert’s mental impressions and opinions formed or made in connection with the case in which discovery is sought, and any methods used to derive them; any bias of the witness; all documents, tangible things, reports, models, or data compilations that have been provided to, reviewed by, or prepared by or for the expert in anticipation of a testifying expert’s testimony; and the expert’s current resume and bibliography.

4.

TECHNIQUES FOR INTERVIEWING FACT WITNESSES
In general, techniques for interviewing fact witnesses do not vary from one jurisdiction to another. Paralegals should be sure to obtain permission when tape-recording statements of witnesses because of the criminal implications of tape recording without the prior knowledge and consent of the witness.

5. 6.

7.

Exhibit 4-1 Assumed-Name Certificate __________________________________________________________________________________________________

continued
© 2015 Cengage Learning. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

12

PART II Initiating Litigation

Source: www.cclerk.htx.net

CHAPTER 5

The Complaint
KEY POINTS
• • • • The initial pleading in Texas state courts is a petition. The petition must include a statement of the plaintiff’s cause of action. Service of process is regulated by Tex. R. Civ. P. 99–124. Service of process in Texas state courts is through a citation. • Amendment of a petition must occur at least seven days prior to trial. Special leave of court is required for later amendments.

THE NATURE AND PURPOSE OF PLEADINGS
The form of pleadings varies greatly among the state courts in Texas. Therefore, special attention should be

© 2015 Cengage Learning. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

CHAPTER 5 The Complaint

13

given to Rules 45(a) and (b) of the Texas Rules of Civil Procedure. Local rules of court and case law also govern. All pleadings in the district and county courts must be on 8½ by 11 inch paper and signed by the party or the party’s attorney. Either the signed original and any verification or a copy of each may be filed with the court. If a copy of the signed original is tendered for filing, the procedural rules require that the party or the party’s attorney maintain the original for inspection by the court or any party to the suit if a question is raised as to its authenticity. Tex. R. Civ. P. 45 provides for the filing of pleadings without original signature to permit the filing of pleadings transferred by facsimile (fax) or other electronic means. Tex. R. Civ. P. 57 suggests the inclusion of the attorney’s fax number on pleadings. Generally, a fax number is incorporated into the signature block for pleadings. No pleading forms are prescribed for use in the Texas courts. However, the form books listed in Exhibit 1-1 offer an excellent selection of state court pleading forms. Local court rules, such as those of the Dallas district courts, require that pleadings be hole-punched at the top before filing. ELECTRONIC FILING (E-FILING) Rule 21 was revised in 2013 to incorporate rules for electronic filing, in accordance with the Supreme Court’s order–Misc. Docket No. 12-9206, amended by Misc. Docket Nos. 13-9092 and 13-9164–mandating electronic filing in civil cases beginning on January 1, 2014. The mandate will be implemented according to the schedule in the order and will be completed by July 1, 2016. Tex. R. Civ. P. 21(f)(1) mandates that “Except in juvenile cases under Title 3 of the Family Code, attorneys must electronically file documents in courts where electronic filing has been mandated. Attorneys practicing in courts where electronic filing is available but not mandated and unrepresented parties may electronically file documents, but it is not required.”… “Electronic filing must be done through the electronic filing manager established by the Office of Court Administration and an electronic filing service provider certified by the Office of Court Administration.” Two categories of documents should not be filed electronically. Documents filed under seal or presented to the court in camera or documents to which access is otherwise restricted by law or court order should not be filed electronically. Additionally, Rule 21(f)(5) provides: “a document is considered timely filed if it is electronically filed at any time before midnight (in the court’s time zone) on the filing deadline. An electronically filed document is deemed filed when transmitted to the filing party’s electronic filing service provider, except: (A) if a document is transmitted on a Saturday, Sunday, or legal holiday, it is deemed filed on the next day that is not a Saturday, Sunday, or legal holiday; and

(B) if a document requires a motion and an order allowing its filing, the document is deemed filed on the date that the motion is granted.” Unless a local rule requires otherwise, no paper copy is required for an electronically filed document. THE PETITION The initial pleading in Texas state courts is referred to as a petition, rather than the complaint used in federal court. However, these two pleadings are substantially the same. The petition must “consist of a statement in plain and concise language of the plaintiff’s cause of action” (Tex. R. Civ. P. 45). A short statement of the cause of action must be sufficient to give fair notice of the claim under Tex. R. Civ. P. 47(a). Separate causes of action are denoted by separately numbered paragraphs, as mandated by Tex. R. Civ. P. 50.

IDENTIFYING AND DESCRIBING THE PARTIES
Section 3 of the Texas Rules of Civil Procedure governs the parties to lawsuits filed in Texas courts. Many of these sections are analogous to the pertinent Federal Rules of Civil Procedure. MINORS AND INCOMPETENTS Minors and incompetents who have no legal guardian may file suit through the use of a next friend, who has the same rights concerning the lawsuit as a guardian would, but must give security for costs or affidavits in lieu thereof, when required (Tex. R. Civ. P. 44). PARTNERSHIPS, UNINCORPORATED ASSOCIATIONS, PRIVATE CORPORATIONS, AND ASSUMED NAMES In Texas a partnership, unincorporated association, private corporation, or individual doing business under an assumed name may file suit in its partnership, assumed name, or company name. JOINING MULTIPLE PARTIES Provisions for joinder of parties in a Texas state court action appear in Tex. R. Civ. P. 39 and 40. These rules are similar to the federal rules of permissive and compulsory joinder. INTERPLEADER Interpleader in Texas is controlled by Tex. R. Civ. P. 43.

© 2015 Cengage Learning. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

14

PART II Initiating Litigation

ALLEGING JURISDICTION AND VENUE
A petition in state court must state facts that affirmatively show the subject matter jurisdiction of the court in which the lawsuit is filed. Properly pleading venue in the petition is critical because venue is accepted as true unless specifically denied by the defendant (Tex. R. Civ. P. 87(3)).

DRAFTING THE PETITION
Technical requirements for a petition are found primarily in Tex. R. Civ. P. 45 and 78. A petition must meet the general requirements for all papers filed with the court. As discussed previously, the petition must be in writing, on 8½ by 11 inch paper. The petition and supplemental petitions must be endorsed to show their position in the pleading process, such as “Original Petition” or “Plaintiff’s First Supplemental Petition.” When drafting a petition for filing in a Texas court, you must be careful to allege facts that support each element of the cause of action. Separate causes of action must be numbered in the petition, followed by the prayer, date, state bar number, signature of the attorney, and the attorney’s facsimile number.

REQUEST FOR DAMAGES OR OTHER RELIEF
A “demand for judgment for all the other relief to which the party deems himself entitled” is required by Tex. R. Civ. P. 47(c). This rule was amended in 2013 to require a more specific statement of the relief requested by a party, as reflected below: (1) only monetary relief of $100,000 or less, including damages of any kind, penalties, costs, expenses, pre-judgment interest, and attorney fees; or (2) monetary relief of $100,000 or less and nonmonetary relief; or (3) monetary relief over $100,000 but not more than $200,000; or (4) monetary relief over $200,000 but not more than $1,000,000; or (5) monetary relief over $1,000,000; and (6) a demand for judgment for all the other relief to which the party deems himself entitled. The typical prayer in state court requests the following: 1. 2. 3. 4. 5. 6. 7. 8. issuance and service of citation; actual damages; punitive damages; equitable relief; attorney fees; prejudgment and postjudgment interest at the highest rate allowed by law; costs; and other and further relief.

VERIFICATION
A verification is a statement under penalty of perjury that the contents of a document are true and correct. In Texas, petitions that must be verified include a suit on sworn account (Tex. R. Civ. P. 93), and an application for sequestration of property (Tex. R. Civ. P. 696). The party, the party’s agent, or the party’s attorney may verify a state court petition. A sample verification appears at the end of Exhibit 5-1.

FILING THE COMPLAINT
The clerk of court assigns a consecutive file number, and endorses the petition with the date and time of filing. You should furnish sufficient copies of the petition for use in serving the parties. Remember that local court rules may require that the petition be two hole punched at the top.

THE SUMMONS
In state court, a citation instead of a summons is used for service of process. Upon the filing of the petition, the clerk of court issues a citation. The party requesting the citation is responsible for obtaining service of the citation and a copy of the petition. Exhibit 5-2 shows a state court citation.

© 2015 Cengage Learning. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

CHAPTER 5 The Complaint

15

© 2015 Cengage Learning. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

Copyright © 2015 Cengage Learning®

16

PART II Initiating Litigation

SERVING THE PETITION
The rules regarding service of process are covered by Tex. R. Civ. P. 99–124. “A document filed electronically under Rule 21 must be served electronically through the electronic filing

manager if the email address of the party or attorney to be served is on file with the electronic filing manager. If the email address of the party or attorney to be served is not on file with the electronic filing manager, the document may be served on that party or attorney under subparagraph (2).

© 2015 Cengage Learning. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

Copyright © 2015 Cengage Learning®

CHAPTER 5 The Complaint

17

(2) Documents Not Filed Electronically. A document not filed electronically may be served in person, by mail, by commercial delivery service, by fax, by email, or by such other manner as the court in its discretion may direct.” “Electronic service is complete on transmission of the document to the serving party’s electronic filing service provider. The electronic filing manager will send confirmation of service to the serving party.” PERSONAL SERVICE Personal service involves personally delivering a copy of the citation and petition to the defendant. Any sheriff or constable, any person authorized by law, and any person authorized by written court order who is not less than 18 years of age may serve citations, pursuant to Tex. R. Civ. P. 103. Sheriffs or constables are not restricted to service in their counties. SUBSTITUTED SERVICE Substituted service may be used in lieu of personal service under certain conditions. If diligent attempts to serve an individual defendant have been unsuccessful, substituted service can be made. Substituted service involves leaving a true copy of the citation, with petition attached, with anyone over 16 years of age at the defendant’s usual place of business or residence. SERVICE BY MAIL Service by mail is made by mailing copies of the citation and petition to the defendant by registered or certified mail, return receipt requested. Any person authorized by Tex. R. Civ. P. 103 to serve the citation in person may institute service by mail. Tex. R. Civ. P. 21a provides that service by mail is complete upon deposit of the petition in a postpaid, properly addressed wrapper in a post office depository of the U.S. Post Office. SERVICE BY PUBLICATION If the defendant cannot be served in another manner, service may be made by publication. (See Tex. R. Civ. P. 109–117(a), 244, and 329.) Specific circumstances that warrant service by publication involve the following: 1. 2. 3. 4. 5. unknown heirs or stockholders of a defunct corporation (Tex. R. Civ. P. 111); unknown owners or claimants of interests in land (Tex. R. Civ. P. 112, 113); suits for collection of delinquent ad valorem taxes (Tex. R. Civ. P. 117a); divorce action or annulment of marriage proceeding in which the defendant cannot be notified either by personal service or by service by mail; partition actions when some part of the land to be partitioned is owned by a person who is either

6.

unknown to the plaintiff or that person’s address is unknown (Tex. R. Civ. P. 758); and a defendant’s address is unknown and cannot be determined after reasonable diligence, or the defendant is a transient, or the defendant is out of the state or a nonresident of the state and service has been unsuccessful under Tex. R. Civ. P. 108, 109.

SERVICE ON PERSON OUTSIDE THE STATE Tex. R. Civ. P. 108 provides for the same methods of service on a person outside of Texas, as may be utilized under Tex. R. Civ. P. 106. SERVICE ON A BUSINESS The manner of service on a business varies according to the type of business. A corporation can be served by serving its agent, identified as president, vice president, or registered agent for service. Service on a partnership may be effected upon the partner or local agent of the partnership where the local agent transacts business (Tex. Civ. Prac. & Rem. Code Ann. § 17.021, 17.022). Unincorporated associations may be served through agents, the president, the secretary, or the general agent (Tex. Civ. Prac. & Rem. Code. Ann. § 17.023). In the case of municipalities, service agents include the mayor, the town clerk, the secretary, or the city treasurer (Tex. Civ. Prac. & Rem. Code Ann. § 17.024(b)). Service on a school board may be made on either the president of the school board or the superintendent. In cases against the State of Texas, service must be made on its service agent, the Secretary of State (Tex. Civ. Prac. & Rem. Code Ann. § 101.102(c)). PROOF OF SERVICE The extent of proof of service varies according to the type of service. Personal service returns must include the day and hour on which the citation was received, the day on which the citation was served, and the manner of service (Tex. R. Civ. P. 105 and 107). If service is made by mail, the return must also include the return receipt signed by the addressee (Tex. R. Civ. P. 107). The electronic filing manager will furnish proof of service to the filing party for electronic filings.

AMENDING THE COMPLAINT
A petition can be amended to add something or to withdraw something from that which was previously pleaded so as to perfect that which is or may be deficient, or correct that which was incorrectly stated previously, or to plead new matters. Leave of court is required for an amendment. Amendments should be filed at least seven days before trial. Tex. R. Civ. P. 63 states that special leave of court is necessary for later filing.

© 2015 Cengage Learning. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

18

PART II Initiating Litigation

CHAPTER 6

Responses to the Complaint
KEY POINTS
• • • In state court, an answer may not be used to challenge personal jurisdiction. The demurrer that is used in many states is not permitted in Texas state courts. An affirmative defense creates a separate ground to defeat the plaintiff’s claim. STIPULATIONS ENLARGING TIME In Texas, the court may at any time in its discretion order the period of time to answer enlarged if application is made before the time for answer elapses, or, upon motion, permit the act to be done after the expiration of the specified period where good cause is shown for the failure to act (Tex. R. Civ. P. 5).

RESPONDING TO THE INITIAL PLEADING
TIME LIMITS The calculation of answer dates in Texas is unique. A defendant must respond to the plaintiff’s petition by filing a written answer at or before 10:00 a.m. on the next Monday after the expiration of 20 days after the date of service of the petition (Tex. R. Civ. P. 99). In computing the answer date, Tex. R. Civ. P. 4 states that the day of service is not to be included in the calculation, but the last day of the period is to be included, unless it is a Saturday, Sunday, or legal holiday, in which event the period for answer runs until the end of the next day which is not a Saturday, Sunday, or legal holiday. See Exhibit 6-1 for a listing of court holidays. In the event of service by mail or by telephonic document transfer, three days are added to the period for answering the petition.

THE ANSWER
Answers are specifically covered by Tex. R. Civ. P. 83–98. The use of the answer in state court is similar to that in federal court. One exception is that in Texas courts an answer may not be used to challenge personal jurisdiction. Such a challenge must be in the form of a special appearance. The filing of an answer is deemed a general appearance and is construed to be a waiver of defects in personal jurisdiction. In addition, a demurrer, which is used in many states, is not permitted in Texas under Tex. R. Civ. P. 90. GENERAL DENIAL A general denial is a denial of any matters pleaded by the adverse party, which are not required to be denied under oath and is sufficient to put the adverse party’s allegations at issue. Tex. R. Civ. P. 92 governs the use of a general denial in state court.

© 2015 Cengage Learning. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

Copyright © 2015 Cengage Learning®

CHAPTER 6 Responses to the Complaint

19

SPECIAL EXCEPTIONS Both plaintiff and defendant may raise, as a special exception, any “defect, omission, or fault in a pleading either of form or of substance” (Tex. R. Civ. P. 90). Special exceptions are made on a written motion filed with the clerk of court. A major function of special exceptions is to question the sufficiency of the alleged claims. For example, does the petition state a cause of action or defense? A second function of the special exception is to point out formal defects in allegations, such as omissions, improper matters, or unclear pleadings. The special exception serves the same purpose as, and is used instead of, a motion to dismiss for failure to state a claim or a motion for more definite statement, which are utilized in federal court. From a practical standpoint, special exceptions are used in the following cases: 1. 2. 3. 4. 5. 6. when the party does not understand the pleading; to limit the admissibility of evidence; to limit special issues; if the party does not believe the opposition can plead a claim or defense in good faith; to limit discovery; or to educate the judge.

4. 5. 6.

denial of genuineness of endorsement or assignment of written instrument; denial of sworn account; and denial of the plaintiff’s legal capacity to sue or the defendant’s legal capacity to be sued. Once the defendant meets the burden of pleading special denials, the burden of proof falls on the plaintiff. PLEA IN ABATEMENT

A plea in abatement asks the court to abate or dismiss the plaintiff’s case without prejudice. Under Tex. R. Civ. P. 85, the plea in abatement may be on the basis of the plaintiff’s lack of capacity, defect of parties, or pendency of another action. If the basis for a plea in abatement is that the lawsuit is improperly brought, the plea must also recite how the action should have been brought. Some matters in a plea in abatement require an affidavit or verification. Even without the mandatory provision for such a verification, the plea in abatement is normally verified. Once the court has considered a plea in abatement, the court will not generally order a dismissal of a matter until the plaintiff is given a reasonable time to amend its petition, if it is possible to do so. AFFIRMATIVE DEFENSES Tex. R. Civ. P. 94 governs the use of an affirmative defense, which creates a separate ground to defeat, in whole or in part, the plaintiff’s claim. It does not act as a denial. A defendant is required to plead affirmatively in an answer (Tex. R. Civ. P. 94): 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14. 15. 16. 17. 18. 19. accord and satisfaction; arbitration and award; assumption of risk; contributory negligence; discharge in bankruptcy; duress; estoppel; failure of consideration; fraud; illegality; laches; license; payment; release; res judicata; statute of frauds; statute of limitations; waiver; and any other matter constituting an avoidance or affirmative defense.

From a negative perspective, special exceptions do educate the opponent and waste precious litigation time that might be better spent in aggressively pursuing discovery methods. The defect, obscurity, duplicity, generality, omission, or other insufficiency in the pleading allegations excepted to must be pointed out with particularity (Tex. R. Civ. P. 91). In the prayer for relief, requests should be made to sustain the exceptions, strike the offending allegations, and require the opponent to replead within a specified time. Following a hearing on the motion for special exceptions, the court will enter an order either denying or granting the special exceptions. A suit may be dismissed by use of special exceptions if, after striking the offending allegations, no cause of action remains, and the plaintiff fails to amend its petition or amends but does not cure the defect. SPECIAL DENIAL Another form of answer available in Texas is the special denial, covered by Tex. R. Civ. P. 93. This rule sets forth special denials that must be verified, including the following: 1. 2. 3. denial of partnership or incorporation; denial of assumed or trade name; denial of execution of instrument by a party or by the party’s authority;

The burden of proof is on the party asserting the affirmative defense. The defendant must state the affirmative defenses in

© 2015 Cengage Learning. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

20

PART II Initiating Litigation

sufficient detail that the plaintiff will be aware of the proof required to counter the affirmative defenses.

number, address, telephone number and, if available, a fax number. Exhibit 6-2 is an example of an answer in Texas state court. SERVICE AND FILING Tex. R. Civ. P. 21 governs the service and filing of all pleadings in state court. The certificate of service, as shown in Exhibit 6-2, verifies the date and manner of service.

DRAFTING THE ANSWER
Texas has no prescribed form of answer. The format selected depends to a great extent upon the response options discussed previously. Generally the format of the answer follows that of the petition. The answer is signed by one attorney of record, with the attorney’s State Bar of Texas identification

© 2015 Cengage Learning. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

Copyright © 2015 Cengage Learning®

CHAPTER 6 Responses to the Complaint

21

AMENDING The answer or other responsive pleadings may be amended at any time so “as not to operate as a surprise to the opposite party” (Tex. R. Civ. P. 63). Any amended answer filed less than seven days before trial requires leave of the court.

the counterclaim is filed. Exhibit 6-3 is an example of a counterclaim that might be filed in a Texas court. CROSS-CLAIMS A pleading may state as a cross-claim “any claim by one party against a co-party arising out of the transaction or occurrence that is the subject matter either of the original action or of a counterclaim therein” (Tex. R. Civ. P. 97(e)). Service of the cross-claim is required if the codefendant has not previously made an appearance in the main action. If the codefendant has appeared, that appearance is sufficient for all claims before the court, including cross-claims. THIRD-PARTY PETITION Tex. R. Civ. P. 38 governs third-party practice in Texas. This rule provides that a defendant party, as a third-party plaintiff, may at any time after commencement of the action cause a citation and petition to be served upon a person who is not a party to the action who is or may be liable to the defendant or the plaintiff for all or any part of the plaintiff’s claim against the defendant. Permission of the court is not required to file a thirdparty petition if the third-party petition is filed not later than 30 days after service of the original answer. After that time, a party must prepare a motion for permission to file a third-party petition and give notice to all parties.

COUNTERCLAIMS, CROSSCLAIMS, AND THIRD-PARTY PETITION
COUNTERCLAIMS Tex. R. Civ. P. 97 discusses both compulsory and permissive counterclaims. Compulsory counterclaims consist of any claim against an opposing party within the jurisdiction of the court, not the subject of the pending action, arising out of the same transaction or occurrence. They do not require the presence of third parties over whom the court cannot acquire jurisdiction. The defendant is precluded from recovery in a subsequent action if he or she fails to file a compulsory counterclaim. Permissive counterclaims consist of “any claim against an opposing party, whether or not arising out of the transaction or occurrence that is the subject matter of the opposing party’s claim” (Tex. R. Civ. P. 97(b)). The normal rules relating to service of process apply to counterclaims. The plaintiff must either be served with process, waive service, or make an appearance voluntarily, such as coming into court to seek affirmative relief after

© 2015 Cengage Learning. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

Copyright © 2015 Cengage Learning®

22

PART II Initiating Litigation

LEGAL CHALLENGES TO THE PETITION
MOTIONS The defendant may challenge the propriety of service by a motion to quash citation. However, this procedure is only nominally effective, as it merely results in a delay in the appearance day. This motion to quash constitutes a general appearance and should not be used by a nonresident who contests personal jurisdiction (Tex. R. Civ. P. 122).

FAILURE TO ANSWER
Defaults and default judgments in Texas are controlled by Tex. R. Civ. P. 239–244. The practice in Texas closely resembles that of federal court. If a defendant fails to answer in the time prescribed, the plaintiff may take judgment by default against the defendant, provided that the citation with the officer’s return has been on file for the 10-day time period, exclusive of the day of filing and the day of judgment, prescribed by Tex. R. Civ. P. 107.

When (or immediately before) a default judgment is rendered, the plaintiff must certify to the clerk of court in writing the last known mailing address of the party against whom the default judgment is taken. This certificate is then filed with the court. Immediately upon the signing of the default judgment, the clerk mails written notice of the default judgment to the party against whom the default was taken, at the address furnished on the certificate, and indicates the mailing on the court docket. However, a provision in Tex. R. Civ. P. 239a states that failure to comply with the provision of this rule shall not affect the finality of the judgment. In cases in which there are several defendants, some of whom have answered and some of whom have defaulted, an interlocutory judgment by default may be entered against those who defaulted, and the case may proceed as to the others (Tex. R. Civ. P. 240). The court assesses damages on liquidated claims that are proved by an instrument in writing and renders final judgment, unless the defendant demands and is entitled to a trial by jury (Tex. R. Civ. P. 241). In the event that service was made by publication and no answer was filed nor appearance entered within the prescribed time, the court hears evidence as to damages and renders judgment (Tex. R. Civ. P. 244).

© 2015 Cengage Learning. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

CHAPTER 7 Motion Practice

23

SETTING ASIDE DEFAULTS The procedure for setting aside defaults is found in Tex. R. Civ. P. 329(b). This rule provides that the trial court has plenary power to vacate, modify, correct, or reform a judgment within 30 days after the judgment is signed. After the expiration of the time period in which the trial court has plenary power, the court cannot set aside a

judgment except by bill of review for sufficient cause, filed within the time allowed by law. If a motion to modify, correct, or reform a judgment is not determined by a written order signed within 75 days after the judgment was signed, the motion is considered overruled by operation of law.

CHAPTER 7

Motion Practice
KEY POINTS
• • • • • Motion practice in state court is similar to that in federal court. Unless presented during a hearing or trial, motions must be written, filed with the clerk, and served upon all parties. The motion and notice of hearing must be served at least three days prior to a hearing. A motion to dismiss is not used to challenge personal or subject matter jurisdiction in state court. There is no motion to dismiss for failure to state a claim or motion for a more definite statement in Texas state courts. evidence and arguments relied on, and a discussion of the statutes, cases, and legal authorities cited. SERVICE AND FILING Every motion, unless presented during a hearing or trial, must be filed with the clerk of court in writing and must state the grounds for the motion and the relief sought. Motions that require an order and notice of hearing must be served on all parties not less than three days prior to the hearing, unless otherwise provided by procedural rules or shortened by the court (Tex. R. Civ. P. 21). Service of a motion is governed by Tex. R. Civ. P. 21a, which provides that a motion may be served by the same method as any pleading. Refer to Chapter 5 of this supplement for state court procedures relating to service. Failure to serve a motion subjects the attorney presenting the motion to possible sanctions under Tex. R. Civ. P. 215.

MOTIONS GENERALLY
Motion practice in state court does not differ significantly from motion practice in federal court. Motions are discussed in the rules covering the specific subject matters (for example, directed verdict or summary judgment). Local rules of court also apply.

COURT PROCEDURES INVOLVING MOTIONS
HEARINGS A motion and notice of hearing must be served at least three days prior to the court hearing. The court may enter the order presented with the motion, deny the order, or modify the language of the order.

PREPARING, SERVING, AND RESPONDING
The general format for motions is the same as that for pleadings. A notice of hearing on the motion is incorporated into the motion. MEMORANDUM OF POINTS AND AUTHORITIES Motions may be supported by a memorandum of points and authorities. This memorandum should contain a statement of the facts, a concise statement of the law,

SPECIFIC MOTIONS
The following is a list of commonly used pretrial motions in state court, along with references to procedural rules governing those motions:

© 2015 Cengage Learning. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

24

PART II Initiating Litigation

Motion Motion to Amend Motion to Dismiss Motion for Change of Venue Motion to Quash Discovery Motion for Summary Judgment Motion for Jury Trial

Tex. R. Civ. P. 63 162, 165a 84 et seq. 122 190, 215 166a 216

heard; and (c) granted or denied within 45 days after the motion is filed.” Motions to dismiss are generally made when a party, usually the plaintiff, unreasonably delays the prosecution of the case. There is no motion to dismiss for failure to state a claim or motion for more definite statement in state court. Special exceptions take the place of these two federal court motions. Exhibit 7-1 is an example of a motion to dismiss in state court. DISCOVERY MOTIONS Motions relating to discovery are discussed in subsequent chapters regarding discovery in Part III of this supplement. MOTION FOR SUMMARY JUDGMENT The congestion in the courts accounts for the increased use of the important motion for summary judgment in Texas state courts. Tex. R. Civ. P. 166(a) controls the motion for summary judgment, which is similar to its federal counterpart. A party seeking to recover upon a claim, counter claim, or cross-claim, or to obtain a declaratory judgment, may at any time, after the adverse party has appeared or answered, move with or without supporting affidavits for a summary judgment in whole or in part. A party against whom such a motion is made may also, at any time, move with or without supporting affidavits for partial or complete summary judgment.

These motions are similar to their federal counterparts, with only minor distinctions. MOTION TO DISMISS In state practice, unlike federal practice, a motion to dismiss is not used to challenge personal or subject matter jurisdiction. Questions of personal jurisdiction are usually raised by a motion to quash service of citation (Tex. R. Civ. P. 122). Rule 91a was added in 2013 to permit dismissal of claims that have no basis in law or in fact, and states, “A cause of action has no basis in law if the allegations, taken as true, together with inferences reasonably drawn from them do not entitle the claimant to the relief sought. A cause of action has no basis in fact if no reasonable person could believe the facts pleaded.” Additionally, it requires that “A motion to dismiss must be (a) filed within 60 days after the first pleading containing the challenged cause of action is served on the movant; (b) filed at least 21 days before the motion is

© 2015 Cengage Learning. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

Copyright © 2015 Cengage Learning®

CHAPTER 7 Motion Practice

25

The motion for summary judgment should state the specific grounds on which the motion is sought. The motion and any supporting affidavits must be filed and served at least 21 days before the time specified for the hearing, except on leave of court, with notice to opposing counsel. Rule 166a(i) provides for a radical new type of summary judgment—a no evidence summary judgment. Rule 166a(i) states that after adequate time for discovery, a party may, without presenting summary judgment evidence, move for summary judgment on the ground that there is no evidence of one or more essential elements of a claim or defense on which an adverse party would have the burden of proof at trial. The motion must state the elements as to which there is no evidence. The court must grant the no evidence summary judgment motion unless the respondent produces summary judgment evidence raising a genuine issue of material fact. An adverse party may file and serve opposing affidavits or a written response not less than seven days prior to the day of hearing, unless the court gives permission for a later filing. Summary judgment may be granted if the pleadings, discovery, affidavits, and stipulations show that, except as to the amount of damages, there is no genuine issue as to

any material fact. Exhibit 7-2 gives an example of a motion for summary judgment. TRIAL AND POSTTRIAL MOTIONS Trial and posttrial motions are more fully discussed in Chapters 15 and 16 of this supplement. Trial motions in state court include the following: Motion Nonsuit Instructed Verdict Judgment Notwithstanding Findings Tex. R. Civ. P. 162 268 324(c)

Common posttrial motions in state court include the following: Motion Motion for Judgment NOV Motion for New Trial Tax Costs Tex. R. Civ. P. 301 320 et seq. 133

© 2015 Cengage Learning. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

Copyright © 2015 Cengage Learning®

26

PART II Initiating Litigation

© 2015 Cengage Learning. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

CHAPTER 7 Motion Practice

27

PART III Discovery
CHAPTER 8

Overview of the Discovery Process
KEY POINTS
• • • • • The discovery rules in Texas are patterned after the federal court discovery rules. E-discovery in Texas. Sanctions for failure to cooperate with discovery are the same as in federal court. Protective orders are covered by Tex. R. Civ. P. 192.6. Discovery conferences are not specifically provided for in Texas courts. However, discovery matters are generally discussed at the pretrial conference. levels, or the court may change or modify those levels on either a party’s motion or on its own. LEVEL 1. Rule 190.2 relates to Level 1, suits involving $50,000 or less, excluding costs, prejudgment interest and attorneys’ fees, and any divorce suit not involving children, in which a party pleads that the value of the marital estate is more than zero but not more than $50,000. A pleading, amended pleading, or supplemental pleading that renders this level no longer applicable may not be filed without leave of court less than 45 days before the date set for trial. All discovery must be conducted during the discovery period, which begins when the suit is filed and continues until 180 days after the date the first request for discovery of any kind is served on a party. Each party is limited to six hours in total to examine and cross-examine all witnesses in oral depositions. The parties may agree to expand this limit to 10 hours in total, but no more, except by court order. Any party may serve on any other party no more than 15 written interrogatories, excluding interrogatories asking a party to identify or authenticate specific documents only. Each discrete sub-part of an interrogatory is considered a separate interrogatory. Discovery in Level 1 ends 30 days before trial. LEVEL 2. Rule 190.3 regulates discovery for all lawsuits not governed by Rules 190.2 or 190.4 (Level 3). Family law cases involving children are included in this subdivision. The discovery period begins when a suit is filed and continues until 30 days before the trial date; in cases under the Family Code, or in other cases, the earlier of 30 days before the trial date, or nine months after the earlier of the date of the first oral deposition or the due date of the first response to written discovery. Each side is allowed no more than 50 hours in oral depositions to examine and cross-examine parties on the opposing side, experts designed by those parties, and

THE NATURE OF DISCOVERY
The discovery rules in Texas have been patterned after the rules in federal court and in many respects are quite similar. The basic discovery rules for Texas courts are found in Tex. R. Civ. P. 166–215. Local court rules and case law also play an important role in the law of discovery. Disclosure is not required unless requested. Thus it does not burden the smaller, less-complicated cases in which it is not sought. The three levels of discovery plans are intended to focus courts and parties on both the need for discovery and its cost in each case. DISCOVERY CONTROL PLANS—LEVELS 1, 2, AND 3 Rule 190, Discovery Limitations, applies only to cases filed on or after January 1, 1999, and requires that every case be governed by a discovery control plan. A plaintiff must allege in the first numbered paragraph of the original petition whether discovery is to be conducted under Level 1, 2, or 3 of this rule. The parties may agree to change or modify the discovery

27
© 2015 Cengage Learning. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

28

PART III Discovery

persons who are subject to those parties’ control. If one side designates more than two experts, the opposing side may have an additional six hours of total deposition time for each additional expert designated. The interrogatory limitation is the same as for Level 1 cases. LEVEL 3. Rule 190.4 regulates cases that require special attention. The court must, on a party’s motion, and may on its own initiative, order that discovery be conducted in accordance with a discovery control plan tailored to the circumstances of the specific suit. The discovery control plan must include a date for trial or for a conference to determine a trial setting; a discovery period; appropriate limits on the amount of discovery; and deadlines for joining additional parties, amending or supplemental pleadings, and designating expertwitnesses.

SERVICE OF DISCOVERY MATERIALS
Every disclosure, discovery request, notice, response, and objection required to be served on a party or person must be served on all parties of record.

FORMS OF DISCOVERY
Rule 192.1 lists permissible forms of discovery: • • • • • • • requests for disclosure; requests for production and inspection of documents and tangible things; requests and motions for entry upon and examination of real property; interrogatories to a party; requests for admission; oral or written depositions; and motions for mental or physical examination.

FILING OF DISCOVERY MATERIALS
DISCOVERY MATERIALS NOT TO BE FILED The following discovery materials must not be filed: 1. 2. 3. 4. discovery requests, deposition notices, and subpoenas required to be served only on parties; responses and objections to discovery requests and deposition notices, regardless on whom the requests or notices were served; documents and tangible things produced in discovery; and statements prepared in compliance with Rule 193.3(b) or (d). DISCOVERY MATERIALS TO BE FILED The following discovery materials must be filed: 1. 2. 3. discovery requests, deposition notices, and subpoenas required to be served on nonparties; motions and responses to motions pertaining to discovery matters; and agreements concerning discovery matters, to the extent necessary to comply with Rule 11. RETENTION REQUIREMENTS Any person required to serve discovery materials not required to be filed must retain the original or exact copy of the materials during the pendency of the litigation and any related appellate proceedings begun within six months after judgment is signed, unless otherwise provided by the trial court. The clerk of court shall retain and dispose of deposition transcripts and depositions upon written questions as directed by the Supreme Court.

The forms of discovery listed above may be combined in the same document and may be taken in any order or sequence. REQUEST FOR DISCLOSURE—RULE 194 A party may obtain disclosure from another party of the information or material listed in Rule 194.2 by serving the other party, no later than 30 days before the end of any applicable discovery period, with a simple request for information described in Rule 194.2 (a)–(l). Rule 194 introduces a new discovery tool that allows parties to obtain a “laundry list” of basic discoverable information without objection, work product claims, or unnecessary expense, or inconvenience. This discovery procedure is patterned after the federal discovery rules. However, unlike federal disclosures, which are required in every case, regardless of whether the parties want the disclosures or not, Texas disclosures are obtainable only on request, thus avoiding unnecessary burden and expense in cases where they are not needed. Among materials and information that can be obtained through the request for disclosure are legal theories and, generally, the factual bases of the responding party’s claims or defenses, as well as basic damage theories. To encourage parties to disclose their basic legal and factual assertions early in the case, Rule 194.6 provides that responses to disclosures concerning liability and damage contentions cannot be used as admissions if the responses are later changed by amendment or supplementation.

SCOPE OF DISCOVERY
Rule 192.3 outlines the scope of discovery. Several changes from the prior discovery rules are found in this rule, including 192.3(c), which allows a party to discover not only the name,

© 2015 Cengage Learning. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

CHAPTER 8 Overview of the Discovery Process

29

address, and telephone number of persons having knowledge of relevant facts, but a brief statement of each identified person’s connection with the case. The person need not have admissible information or personal knowledge of the facts. Another change from the prior discovery rules is Rule 192.3(d), which permits discovery of the name, address, and telephone number of any person who is expected to be called to testify at trial. This paragraph does not apply to rebuttal or impeachment witnesses, as the necessity of that testimony cannot reasonably be anticipated before trial. Under Rule 192.3(h), a party may obtain discovery of the statement of any person with knowledge of relevant facts (witness statement) regardless of when the statement was made. Notes taken during a conversation or interview with a witness are not a witness statement. LIMITATIONS ON SCOPE OF DISCOVERY Rule 192.4 tracks Rule 26.2 of the Federal Rules of Civil Procedure to proportionately limit the burden of discovery if the discovery sought is unreasonably cumulative or duplicative, or if it is obtainable from some other, more convenient, less burdensome or less expensive source, or if the burden or expense of the proposed discovery outweighs its likely benefit.

WORK PRODUCT DEFINED Work product comprises: 1. material prepared or mental impressions developed in anticipation of litigation or for trial by or for a party or a party’s representatives, including the party’s attorneys, consultants, sureties, indemnitors, insurers, employees, or agents or a communication made in anticipation of litigation or for trial between a party and the party’s representatives or among a party’s representatives, including the party’s attorneys, consultants, sureties, indemnitors, insurers, employees, or agents. PROTECTION OF WORK PRODUCT Core work product, the work product of an attorney or an attorney’s representative that contains the attorney’s or the attorney’s representative’s mental impressions, opinions, conclusions, or legal theories, is not discoverable. Any other work product is discoverable only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of the party’s case and that the party is unable, without undue hardship, to obtain the substantial equivalent of the material by other means. CHOICE OF DISCOVERY METHODS In Texas, an attorney may select from the same discovery techniques used in federal court. Exhibit 8-1 summarizes the procedural rules relating to each type of discovery.

2.

WORK PRODUCT
Work product is defined for the first time in Rule 192.5, and its exceptions stated. This definition of work product replaces the prior attorney work product and party communication discovery exemptions under former Rule 166b.

© 2015 Cengage Learning. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

Copyright © 2015 Cengage Learning®

30

PART III Discovery

AMOUNT OF TIME Absent a stipulation or court order to the contrary, discovery must be completed 30 days before the trial date. Specific time limits that apply to each method of discovery are discussed in subsequent chapters in this supplement. ETHICAL CONSIDERATIONS IN DISCOVERY The discovery rules clearly prohibit unreasonable behavior in requesting or responding to discovery. Tex. R. Civ. P. 215 provides for monetary or other sanctions for this behavior.

COOPERATING WITH DISCOVERY
The Texas rules and courts encourage cooperation among the attorneys involved in the discovery process. Before filing a motion to compel discovery, the attorneys must try to resolve the problems amicably. Tex. R. Civ. P. 215 outlines the court’s powers to impose sanctions for failure to cooperate with discovery. The same discovery sanctions are available in Texas courts as in the federal courts. ORDERS TO COMPEL DISCOVERY The court has the power to grant or deny orders to compel discovery. Motions to compel are used when a party fails to respond to a discovery request. If a party responds incompletely or improperly, then a motion to compel further response may also be filed. SANCTIONS AGAINST NONCOMPLYING PARTIES Sanctions for discovery abuse include the award of reasonable expenses and attorney fees to the party who brings the motion for sanctions. In some cases, failure to appear or to answer a deposition question may be considered a contempt of the court.

THE EXTENT OF ALLOWABLE DISCOVERY
The extent of discovery in Texas parallels that of federal discovery. Any matter that is relevant to the subject matter of the action and that is admissible or may lead to admissible evidence is discoverable, unless it is privileged (Tex. R. Civ. P. 192.1). PROTECTIVE ORDERS Protective orders are covered in Tex. R. Civ. P. 192.6. Refer to the subsequent chapters on discovery in this supplement for the roles of protective orders in the specific methods of discovery.

CHAPTER 9

Depositions
KEY POINTS
• • Tex. R. Civ. P. 199–203 regulate depositions in Texas state courts. Depositions permitted in Texas courts are: the oral deposition the deposition upon written questions the telephone deposition the deposition of an organization the deposition before suit, or to investigate claims and depositions in foreign jurisdictions for use in Texas proceedings before suit. Depositions may be used to obtain information or documents from nonparties. Depositions may be taken at any time after commencement of the action. • Unavailability of a witness at trial is not required for use of a deposition in lieu of live testimony at trial.

THE DEPOSITION
The use of depositions in Texas state courts is governed by Tex. R. Civ. P. 190–215. Depositions in the state courts are quite similar to those in federal court, including both the scope of inquiry and the procedures by which depositions are taken. In Texas, the types of depositions permitted include the oral deposition, the deposition upon written question, the telephone deposition, the deposition of an organization, and the deposition to perpetuate testimony. Depositions may be used to obtain information or documents from parties and nonparties.

• •

© 2015 Cengage Learning. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

CHAPTER 9 Depositions

31

TIMING A party may take the deposition of any person, including another party, after commencement of the action. Leave of court is needed only if the deposition is scheduled prior to appearance day. The court may, upon motion of a party, shorten or enlarge the time for taking depositions. SANCTIONS An organization or corporation may be sanctioned for failing to make a designation of a representative for the deposition or for the representative’s failure to answer questions as required by Tex. R. Civ. P. 215.

before the deposition or if the court orders the taxing as a cost, upon proper motion and notice to the court. Videotaping the deposition does not dispense with the requirement for a stenographic transcription of the deposition unless the court allows such a waiver, upon motion and order, before the deposition is taken.

LIMITATIONS ON DEPOSITION CONDUCT
Tex. R. Civ. P. 199 introduced several new provisions designed to reduce dispute in oral depositions, curtail dilatory and obstructive tactics by witnesses and their lawyers, and enable the deposing party to obtain the witness’s testimony rather than that of the witness’s lawyer. These rules are patterned in part on previous reforms in federal discovery rules. Rule 199.5(d) mandates that oral depositions are to be conducted in the same manner as if the testimony were being obtained in court at trial. Counsel are warned to be courteous to each other and the witness, and the witness is warned not to be evasive or to unduly delay the examination. Private conferences between the witness and the witness’s lawyer are prohibited except for the purpose of determining whether a privilege should be asserted. If the lawyers and the witnesses do not comply with these rules, the court may admit into evidence at trial any statements, discussions, or other occurrences that reflect upon the credibility of the witness or the testimony. Both “coaching” objections and colloquy are strictly prohibited. Objections to questions during the deposition are limited to “objection: form” or “objection: leading,” and objections to testimony are limited to “objection: nonresponsive.” These objections are waived if not stated as phrased during the deposition. The witness’s attorney may instruct the witness not to answer a question if it calls for privileged information, is abusive, or if any answer to the question would be misleading (Rule 199.5(f )). The deposing party, however, may require the objecting party to give a concise explanation of the basis for the objection or instruction to enable the deposing party to rephrase the question. However, argumentative or suggestive objections or explanations are prohibited, waive the objection, and may be grounds for terminating the deposition (Rules 199.5(e) and (f )). TIME LIMITS ON DEPOSITIONS In addition to the aggregate time limits of Rule 190, Rule 199.5(c) limits each side to six hours to examine and crossexamine an individual witness in an oral deposition. Breaks do not count against this limitation. For purposes of this rule, each person designated as a corporate representative under Rule 199.2(b)(1) is a separate witness.

THE NATURE OF THE ORAL DEPOSITION
Tex. R. Civ. P. 199 states the primary procedural rules regulating oral depositions in Texas courts. DOCUMENT PRODUCTION THROUGH DEPOSITION If a party serves a request for production of documents with a deposition notice to a party, regulated by Rule 199.2(b) (5), the request, response, objections, and privilege claims are governed by the requests for production rule, Rule 197, including the deadline of 30 days for responding, as well as the general standards governing written discovery set forth in Rule 193. ADVANTAGES OF THE ORAL DEPOSITION Tex. R. Evid. 801(e)(3) permits depositions to be used in lieu of live testimony, without any requirement that the deponent be unavailable to testify at trial. A party may read any admissible part of a deposition into evidence during a trial. Additionally, Tex. R. Evid. 607 permits a party to impeach its own witness through deposition testimony. TRENDS IN ORAL DEPOSITIONS VIDEOTAPED DEPOSITIONS. Tex. R. Civ. P. 199.1(c) provides for non-stenographic recording of a deposition, including videotape recording, without leave of court. This non-stenographic recording may be used at trial in lieu of reading from a stenographic transcription of the deposition. The party requesting the non-stenographic recording must give five days’ notice of intent to all parties by certified mail, return receipt requested, and must specify in the notice the type of non-stenographic recording that will be used. This information is normally incorporated in the formal notice of intent to take a deposition. The expense of the videotape may not be taxed as a cost in the case, unless mutually agreed upon by the parties

© 2015 Cengage Learning. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

32

PART III Discovery

THE PARALEGAL’S ROLE BEFORE THE ORAL DEPOSITION
NOTICE REQUIREMENT What constitutes the “reasonable notice” required by the state court rule on deposition notice depends on the individual circumstances of a case. Service of the notice upon the deponent/party’s attorney has the same effect as a subpoena served upon the party (Tex. R. Civ. P. 199.3). This rule also provides that notice is sufficient if the deponent is an agent or employee who is subject to the control of a party. CONTENT OF NOTICE Tex. R. Civ. P. 199.2(b)(1) states that the notice of deposition must incorporate the following information: 1. 2. 3. 4. 5. 6. name of the deponent time and place of deposition alternative means of conducting and recording identity of persons who will attend designation of any documents or tangible things to be produced at deposition if the deponent is a corporation, partnership, association, or governmental agency, a description with reasonable particularity of the matters on which examination is requested

the subpoena is directed, but any person affected by the subpoena, to seek a protective order under Rule 192.6(b). PREPARATION FOR DEFENDING THE DEPOSITION MOTION TO QUASH AND MOTION FOR PROTECTIVE ORDER. Tex. R. Civ. P. 199.4 permits a party or witness to object to the time and place designated for an oral deposition by motion for protective order or by motion to quash the notice of deposition. If the motion is filed by the third business day after service of the notice of deposition, an objection to the time and place of a deposition stays the oral deposition until the motion can be heard. Tex. R. Civ. P. 192.6 establishes the guidelines for obtaining a motion for protective order. The failure of a party to obtain a ruling on any objection or motion for protective order does not waive that objection or motion. OBJECTIONS. Tex. R. Civ. P. 199.5(e) provides that objections to the form of a question or nonresponsiveness of answers are waived if not made on the record. However, other objections are not waived by failure to make the objections on the record. MOTION TO COMPEL. If a witness refuses to answer a deposition question, the attorney conducting the deposition may prepare a motion to compel an answer to the question. An evasive or incomplete answer is treated as a failure to answer. The attorney asking the question has the option of either completing the examination before applying for an order to compel the answer or recessing the deposition to obtain the order.

Exhibit 9-1 shows a deposition notice for Texas state court. SERVICE OF NOTICE A party may take the testimony of any person, including a party, after commencement of the action. Leave of court must be obtained if a party seeks to take a deposition prior to the appearance day of any defendant. SUBPOENA REQUIREMENTS A subpoena must be served on a nonparty witness to compel attendance at a deposition. Notice must be given to all parties. The clerk or court reporter is normally asked to arrange for service of the subpoena upon the witness. Tex. R. Civ P. 176 consolidates and clarifies the rules governing trial and discovery subpoenas and is structured loosely on Fed. R. Civ. P. 45. Rule 176.4(b) also seeks to reduce costs associated with the issuance of subpoenas by enabling attorneys to issue both trial and discovery subpoenas. This rule expressly permits officers authorized to take depositions to serve the deposition notice along with the subpoena. Rules 176.6 and 176.7 include a provision expressly permitting not only the person to whom

THE PARALEGAL’S ROLE DURING THE ORAL DEPOSITION
DEPOSITION EXHIBITS Tex. R. Civ. P. 203.4 offers two options for deposition exhibits. A party may offer copies of exhibits to be marked for identification. These copies serve as originals, provided that all parties have a fair opportunity to verify the copies by comparing them against the originals. Alternatively, a party may offer originals to be marked, in which case the court reporter makes copies, annexes the copies to the original deposition, and returns the originals to the parties. If the latter is selected, the producing witness or party must preserve the original exhibits and produce them for hearing or trial upon seven days’ notice from any party.

© 2015 Cengage Learning. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

CHAPTER 9 Depositions

33

THE PARALEGAL’S ROLE AFTER THE ORAL DEPOSITION
TRANSCRIPT ARRANGEMENTS After the original deposition transcript has been prepared, the court reporter places the deposition and exhibits in a wrapper (normally an envelope) containing the name of the action. The reporter then marks the deponent’s name on the wrapper and delivers or mails it—postpaid, properly addressed, wrapped, and certified, with return receipt requested—to the attorney or party who asked the first question in the transcript. The reporter gives notice of the delivery to all parties in the case (Tex. R. Civ. P. 203.3(a)).

SIGNATURE OF DEPOSITION A party has 20 days to make any necessary changes to his or her testimony and sign, under oath, and return to the court reporter the original deposition transcript. If the deponent does not sign the transcript during that time, the court reporter is authorized to sign a true copy of the transcript and state on the record that examination and signature have been waived or the reason for the witness’s refusal to sign. The copy of the deposition transcript may then be used at trial as though it had been signed unless, on a motion to suppress provided for under Tex. R. Civ. P. 203.5, the court determines that the reasons the witness gave for refusing to sign require rejection of part or all of the deposition. The deponent is not permitted to make erasures or obliterations on the original testimony. The changes and

© 2015 Cengage Learning. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

Copyright © 2015 Cengage Learning®

34

PART III Discovery

reasons for the changes must be forwarded to the court reporter and must subsequently be attached to the deposition. MOTION TO SUPPRESS Tex. R. Civ. P. 203.5 specifies that once the deposition is filed with the court, and such notice is given at least one full day before the date the case is called for trial, all objections to the technical sufficiency of the deposition process are waived unless a motion to suppress the deposition is made before trial begins.

Any defendant in a foreign country who is served with notice must appear and answer in the same manner and under the same penalties as if the defendant had been personally served with the citation within the state. However, this rule further provides that the method for service of process in a foreign country must be reasonably calculated to give actual notice of the proceedings to the defendant in time to answer and defend. DEPOSITION TO PERPETUATE TESTIMONY Tex. R. Civ. P. 202.1(a) sets out lengthy provisions governing depositions to perpetuate testimony. Requirements for the verified petition for such a deposition include: • • • • • • a statement that the petitioner anticipates the institution of an action in which he or she may be a party the subject matter of the anticipated action and the petitioner’s interest in that action the names and residences, if they are known, or a description of the persons expected to have an interest adverse to that of the petitioner the names and addresses of the persons to be deposed and the substance of the testimony the petitioner expects to secure the petitioner’s reasons for desiring to perpetuate the testimony a request for a court order to authorize the deposition

SPECIAL TYPES OF DEPOSITIONS
DEPOSITIONS UPON WRITTEN QUESTIONS Tex. R. Civ. P. 200 regulates the deposition upon written questions in state court. This type of deposition may be noticed at any time after commencement of the action but may be taken outside the discovery period only by agreement of the parties or with leave of court. Notice must be served on the witness and all parties at least 20 days prior to the deposition. The party noticing the deposition must also deliver to the deposition officer a copy of the notice and of all written questions to be asked during the deposition. Rule 200.3 specifies a detailed timetable for objecting to questions or serving responsive questions. Within 10 days after the notice and direct questions are served, any party may object to the direct questions and serve cross-questions on all other parties. Within five days after cross-questions are served, any party may object to the cross-questions and serve redirect questions on all other parties. Within three days after redirect questions are served, any party may object to the redirect questions and serve recross questions on all other parties. Objections to recross questions must be served within five days after the earlier recross questions are served or at the time of the deposition on written questions. Objections to the form of a question are waived unless asserted in accordance with Rule 200.3. Rule 200.4 provides the manner in which the deposition upon written questions must be conducted. The deposition officer must take the deposition on written questions at the time and place designated, record the testimony of the witness under oath in response to the questions, prepare, certify, and deliver the deposition transcript in accordance with Rule 203. The deposition officer has the authority, when necessary, to summon and swear an interpreter to facilitate the taking of the deposition. DEPOSITIONS IN FOREIGN JURISDICTIONS Because of the mobile nature of litigation, it is often necessary to take a deposition in another state or even in a foreign country. The procedures for this type of deposition are set out in Tex. R. Civ. P. 201.1 and include a commission, letter rogatory, or letter of request. These complicated provisions require careful review of the rule.

At least 15 days before the hearing date, the petitioner must serve the witness and parties with notice of the hearing, together with a copy of the petition. If the petitioner does not know the address of a potential party, the clerk of court must publish notice in the newspaper of the county of the litigation or a nearby county once a week for two consecutive weeks. THE TELEPHONE DEPOSITION Tex. R. Civ. P. 199.1(b) and 199.5(a)(2) establish new rules for taking depositions by telephone or other remote electronic means (e.g., closed-circuit television or the Internet) and permit lawyers to attend the deposition through those means. Under these new rules, the officer taking the deposition may be located with the party noticing the deposition instead of with the witness, if the witness is placed under oath by a person who is present with the witness and authorized to administer oaths in that jurisdiction. The party noticing the deposition must make arrangement for all parties to attend the deposition by the same means. If the party noticing the deposition appears in person, any other party may appear by telephone or other remote electronic means if that party makes the necessary arrangements with the deposition officer and the party noticing the deposition.

© 2015 Cengage Learning. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

CHAPTER 10 Interrogatories

35

CHAPTER 10

Interrogatories
KEY POINTS
• • Use of interrogatories in Texas state courts is governed by Tex. R. Civ. P. 197. Interrogatories may be served upon the plaintiff after commencement of the action and upon any other party with or without service of the citation and petition upon that party. Interrogatories may not require more than 15 answers in Level 1 discovery matters, and 25 in Levels 2 and 3. Interrogatory answers must be served within 30 days after service, unless the interrogatories were served with the citation, in which case responses are due in 50 days. Interrogatory answers must be signed and verified by the party answering, except those concerning persons with knowledge of relevant facts, trial witnesses, and legal contentions. Interrogatories must be restated before the response. SERVICE OF INTERROGATORIES “A party may serve on another party—no later than thirty days before the end of the discovery period—written interrogatories to inquire about any matter within the scope of discovery except matters covered by Rule 195” (Tex. R. Civ. P. 197). NUMBER OF INTERROGATORIES Any party may serve no more than 15 written interrogatories, excluding interrogatories in Level 1 discovery and 25 in Levels 2 and 3, asking a party only to identify or authenticate specific documents, as set out in Rule 190. Each discrete subpart of an interrogatory is considered a separate interrogatory. There is no limit to the number of sets of interrogatories that may be propounded—only the limit on the number of interrogatories.

• •

•

•

DRAFTING INTERROGATORIES
FORMAT AND CONTENT OF INTERROGATORIES There is no mandatory format or content for interrogatories filed in state court. However, custom dictates that the interrogatory format track that of federal court interrogatories, including the caption of the case, title of discovery, the name of the propounding party, the set number, the identity of the responding party, instructions, and definitions. Exhibit 10-1 is an example of an interrogatory format for use in state court. INTERROGATORIES THAT IDENTIFY PEOPLE EXPERT WITNESSES. Rule 192.3(e) contains major changes from the prior discovery rules. This rule does not permit the discovery of the identity, mental impressions, and opinions of a consulting expert whose mental impressions and opinions have not been reviewed by a testifying expert. However, a party may discover the following information regarding a testifying expert or a consulting expert whose mental impressions or opinions have been reviewed by a testifying expert: • • the expert’s name, address and telephone number; the subject matter on which a testifying expert will testify;

INTERROGATORIES
Tex. R Civ. P. 197 governs interrogatories, in conjunction with the overall discovery plan outlined in Rule 190. The key changes from the former rule, Rule 188, is a new provision addressing contention interrogatories. Interrogatories about specific legal or factual assertions— such as whether a party claims a breach of contract—are proper, but an interrogatory that asks a party to state all legal and factual assertions is improper. As with requests for disclosure, interrogatories may be used to ascertain basic legal and factual claims and defenses but may not be used to force a party to marshal evidence. The verification requirement has been changed in recognition of the practical reality that parties often do not have personal knowledge of much of the information in interrogatory responses to which they formerly were required to attest. Under Rule 197.2(d), parties must verify all responses except those concerning persons with knowledge of relevant facts, trial witnesses, and legal contentions. Where an interrogatory response is based on information obtained from other persons, the party may so state. As is the case with verification of supplemental interrogatory responses, failure to sign or verify initial interrogatory responses is merely a formal defect that may be corrected within a reasonable time after it is pointed out, and not a failure to timely respond that may serve as a basis for exclusion of evidence.

© 2015 Cengage Learning. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

36
•

PART III Discovery

•

• •

•

the facts known by the expert that relate to or form the basis of the expert’s mental impressions and opinions formed or made in connection with the case in which discovery is sought, regardless of when and how the factual information was acquired; the expert’s mental impressions and opinions formed or made in connection with the case in which discovery is sought, and any methods used to derive them; any bias of the witness; all documents, tangible things, reports, models, or data compilations that have been provided to, reviewed by, or prepared by or for the expert in anticipation of a testifying expert’s testimony; and the expert’s current resume and bibliography

DRAFTING ANSWERS TO INTERROGATORIES
DETERMINING TIME LIMITS Interrogatory answers must be filed not less than 30 days after service, unless the interrogatories were filed with the citation, in which case responses are due 50 days after service. The court, on motion and notice of good cause, may enlarge or shorten the time for serving answers to interrogatories or objections. ANSWERING THE INTERROGATORIES Interrogatory answers may only be used against the party answering the interrogatories. In Texas state court cases, just as in federal court cases, interrogatories addressed to a public or private corporation, partnership, association, or governmental agency may be answered by an officer or agent, to the extent information to the answer is “available to the party.” The answers must be signed and verified by the party answering; they may not be signed by the attorney. FORM OF THE ANSWERS It is necessary to restate the interrogatory before the response in state court. See Exhibit 10-3 for one form of an answer to interrogatories in state court.

MOTION TO COMPEL
If a responding party fails to serve answers or objections to interrogatories after proper service of the interrogatories, or fails to answer an interrogatory submitted under Tex. R. Civ. P. 197, the propounding party must file a motion to compel answers. An evasive or incomplete answer to an interrogatory is to be treated as a failure to answer. A motion to compel is regulated by Tex. R. Civ. P. 215. Exhibit 10-2 is a motion to compel answers to interrogatories in state court.

© 2015 Cengage Learning. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

Copyright © 2015 Cengage Learning®

CHAPTER 10 Interrogatories

37

FULFILLING THE DUTY TO SUPPLEMENT Tex. R. Civ. P. 193 moderates the former discovery rules’ rigid exclusion of evidence not timely disclosed or supplemented in discovery. Parties are not required to formally supplement materials or information requested in discovery, except for persons with knowledge of relevant facts, trial witnesses, or experts, if the materials or information have previously been made known to other parties in writing, on the record during a deposition or through other discovery responses (Tex. R. Civ. P. 193.5(a)). Where formal supplementation is required, late supplementation can be excused if there is either good cause for the failure to disclose or the failure to timely disclose will not unfairly surprise or unfairly prejudice the other parties (Tex. R. Civ. P. 193.6).

The changes to the supplementation requirements seek only to prevent the exclusion of witnesses or evidence on technical grounds, where the information has already been disclosed, or exclusion due to relatively minor and inadvertent errors in disclosure of witnesses’ telephone numbers or addresses, for example. USING BUSINESS RECORDS INSTEAD OF A WRITTEN RESPONSE Tex. R. Civ. P. 197.2(c) contains a provision similar to that found in Fed. R. Civ. P. 33, permitting a responding party to simply identify and allow inspection of documents that contain answers to interrogatories.

© 2015 Cengage Learning. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

38

PART III Discovery

© 2015 Cengage Learning. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

Copyright © 2015 Cengage Learning®

CHAPTER 10 Interrogatories

39

OBJECTING TO INTERROGATORIES
Rule 193.2 imposes a duty upon a responding party to comply with the interrogatory to the extent no objection is made. If the responding party objects to the requested time or place of production, the responding party must state a reasonable time and place for complying with the request and must comply at that time and place without further request or order. Rule 193.2(f) states that a party should not object to a request for written discovery on the grounds that it calls for production of material or information that is privileged, but should instead comply with Rule 193.3 for the proper method of asserting a privilege. ASSERTING A PRIVILEGE Rule 193.3 governs the designation of all privileges, including work product. It dispenses with objections to

written discovery requests on the basis that responsive information or materials are protected by a specific privilege from discovery. Instead, the rule requires parties to state that information or materials that have been withheld and to identify the privilege upon which the party relies. Rule 193.3(d) is a new provision that allows a party to assert a claim of privilege to material or information produced inadvertently without intending to waive the privilege. That claim of privilege must be made within 10 days (or a shorter period if ordered by the court) after the producing party actually discovers that such production was made by amending the response, identifying the material or information produced, and stating the privilege asserted. If the producing party thus amends the response to assert a privilege, the requesting party must promptly return the specified material or information and any copies, pending any ruling by the court denying the privilege.

© 2015 Cengage Learning. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

Copyright © 2015 Cengage Learning®

40

PART III Discovery

PROTECTIVE ORDERS Rule 192.6 governs protective orders. It is essentially identical to former Tex. R. Civ. P. 166(b)(7), but with two important modifications. First, a person seeking a protective order now has an affirmative duty to respond to the discovery request at issue to the extent protection is not sought unless it is unreasonable to do so before obtaining a ruling on the motion.

Second, Rule 192.6 clarifies that persons should not move for a protective order when an objection or assertion of privilege under other rules is appropriate, but a motion for protective order does not waive the objection or assertion of privilege. In addition, in a manner similar to Rule 176.6(e), this rule clarifies that any person affected by discovery, not merely a person or party to whom discovery is directed, may seek a protective order.

© 2015 Cengage Learning. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

CHAPTERCHAPTER 12 Request for Documents 11 Physical and Mental Examinations

41

CHAPTER 11

Physical and Mental Examinations
KEY POINTS
• • • Tex. R. Civ. P. 204 regulates physical and mental examinations in Texas state court. The Texas state court rule is similar to the federal rule governing physical and mental examinations. The requirements for the court’s granting a request for a physical or mental examination are good cause and a condition in controversy. period. The motion includes the time, place, manner, conditions, and scope of the examination and the identity of the person who is to conduct the examination. The motion and notice of hearing must be served on the person to be examined and on all parties. With the exception of family law cases covered under Tex. R. Civ. P. 204.4, no examination by a psychologist may be ordered unless the party responding to the motion has identified a psychologist as an expert who will testify or has disclosed a psychologist’s records for possible use at trial. The party against whom an order for examination is made may request a detailed written report of the examining physician or psychologist’s findings, tests, results, and reports of all earlier examinations of the same condition. Such requests must be honored by the person to whom the requests are made. However, as is true in federal court, the delivery of such reports entitles the party requesting the examination to ask that the party against whom the order is made furnish similar reports of any examinations either made previously or subsequently, if the reports concern the same condition. One exception to this rule is if the person being examined is not a party and the party shows that he or she is unable to furnish such a report.

THE PHYSICAL AND MENTAL EXAMINATION
The physical and mental examination is regulated by Tex. R. Civ. P. 204. This rule is similar to the companion federal rule in that it permits the examination of any party or person in the custody, conservatorship, or under the legal control of a party, in any case in which the mental or physical condition of that party is in controversy. An order for such an examination may be made only on motion for good cause and upon notice to the person to be examined and to all parties.

FILING A MOTION FOR COMPULSORY EXAMINATION
A motion for physical and mental examination must be filed no later than 30 days before the end of the discovery

CHAPTER 12

Request for Documents
KEY POINTS
• • • Tex. R. Civ. P. 196 governs a request or demand to inspect documents. Requests for production of documents may be served upon parties or nonparties. In Texas state courts, the request for documents to parties may be served upon the plaintiff after commencement of the lawsuit and upon any other party with or after the petition and citation. • Requests for production and responses to parties are not filed with the court. However, requests for production and responses to nonparties are filed with the court. Documents produced in discovery are now presumed to be authentic for use against the party producing them, avoiding cost of proving authentication.

•

© 2015 Cengage Learning. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

42

PART III Discovery

THE REQUEST FOR DOCUMENTS
A request or demand to inspect documents or tangible things in the possession or under the control of a party is governed by Tex. R. Civ. P. 196. A similar request to a nonparty is governed by Rule 205.3. However, this is not the only method of obtaining documents in a case. Documents can also be discovered through the deposition process, as discussed in Chapter 9, or in response to interrogatories, as discussed in Chapter 10. Requests for production and responses to parties are not filed with the court. However, requests for production and responses to nonparties are filed with the court. Documents produced in discovery are now presumed to be authentic for use against the party producing them, thus avoiding the cost of proving authentication. REQUEST FOR DOCUMENTS TO PARTIES A party may serve on another party, no later than 30 days before the end of the discovery period, a request for production or for inspection, to inspect, sample, test photograph, and copy documents or tangible things within the scope of discovery. Following the amendment of Rule 190 in 2013, Level 1 discovery cases are limited to 15 document requests to parties and Level 2 cases are limited to 25 document requests. REQUEST FOR DOCUMENTS TO NONPARTIES In Texas, the court may order a person, organizational entity, corporation, or governmental agency that is not a party to the lawsuit to produce documents (Tex. R. Civ. P. 205.3). Rules 205.1 and 205.2 permit a party to obtain documents from a nonparty without the need for a motion or deposition. A party requesting production of documents from a nonparty, however, must reimburse the nonparty’s reasonable cost of production (Rule 205.3(f)). A notice to produce documents or tangible things under Rule 205.3 must be served at least 10 days before the subpoena compelling production is served.

requesting party may make a motion to compel response under Rule 215. MOTION WITH RESPECT TO PRODUCTION If a party fails to permit inspection of the documents, the demanding party can make a motion to compel compliance under the same rule.

REQUESTING THE PRODUCTION OF DOCUMENTS
FORM AND CONTENT OF THE REQUEST The request must specify the items to be produced or inspected, either by individual item or by category, and describe with reasonable particularity each item and category. The request must specify a reasonable time (on or after the date on which the response is due) and place for production. If the requesting party will sample or test the requested items, the means, manner, and procedure for testing or sampling must be described with sufficient specificity to inform the producing party of the means, manner, and procedure for testing or sampling. Exhibit 121 is an example of a request for production of documents that might be used for an action filed in Texas state court. SERVICE OF THE REQUEST Copies of the request for production must be served on all parties to the action. Responses to request for production by parties are not filed with the court. However, responses by nonparties are filed with the court.

RESPONDING TO A REQUEST FOR DOCUMENTS
Texas law requires a written response to a request for production, in addition to actual production, of the documents. The written response must be served on all parties within 30 days after service of the request for production, except when the request accompanied the citation, in which case a defendant may serve a written response to the request within 50 days after service of the petition and citation. The response must include objections to particular items or categories of items in the request and state specific grounds for the objections. A party should not object to a request for written discovery on the grounds that it calls for production of material or information that is privileged, but should instead comply with Rule 193.3. A party who objects to production of privileged material or information does not waive the privilege but must comply with Rule 193.3 when the error is pointed out.

PROTECTION OF DOCUMENTS
Tex. R. Civ. P. 215 grants protection of documents from inspection under certain conditions through a protective order, as discussed in Chapter 8. Another major form of document protection is through written objections to the request. This is discussed later in this chapter of the supplement. MOTIONS TO COMPEL REGARDING THE WRITTEN RESPONSE If no written response is served upon the requesting party within the 30- or 50-day time period prescribed, the

© 2015 Cengage Learning. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

CHAPTER 12 Request for Documents

43

FORMAT OF RESPONSE Normally the format of the response resembles that of the request. Exhibit 12-2 is an example of the response to the request for production shown in Exhibit 12-1. ORGANIZATION OF THE DOCUMENTS The documents may be produced either as they are kept in the usual course of business or according to the categories of the document request (Tex. R. Civ. P. 196.3(c)).

INSPECTION OF PROPERTY
Tex. R. Civ. P. 196 is substantively similar to former Rule 167, except for a few notable refinements. For example, if the requesting party seeks to sample or test the requested items, the means, manner, and procedure for testing or sampling must be described with sufficient specificity in

the request to inform the responding party of the means, manner, and procedure for testing or sampling (Rule 196.1(b)). Testing or sampling that is destructive or materially alters an item is not permitted without prior court approval (Rule 196.5). There is a new notice requirement applicable to requests for a nonparty’s medical or mental health records (Rule 196.1(c)). This rule does not imply that such records are or should be discoverable in every case. Rule 196.7 sets forth the procedures for obtaining entry upon property. If the landowner is a party, entry may be by request. If the landowner is not a party, the party requesting entry must obtain a court order (Rule 196.7(a)). To facilitate discovery on land owned by a nonparty who cannot be located, a new provision permits motions and orders permitting such discovery upon any form of notice permissible under Tex. R. Civ. P. 21(a).

© 2015 Cengage Learning. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

Copyright © 2015 Cengage Learning®

44

PART III Discovery

© 2015 Cengage Learning. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

CHAPTER 13 Request for Admission and Request forof Discovery CHAPTER 12 the Future Documents

45

CHAPTER 13

Request for Admission and the Future of Discovery
KEY POINTS
• • Admissions in state court are governed by Tex. R. Civ. P. 198. There is a limit of 15 requests for admission in Level 1 cases, and 25 requests for Level 2 cases. Level 3 case limitations may be established by agreement of the parties or order of the court. Failure to respond to a request for admission results in a deemed admission. Verification of the response to the request for admissions is not required.

THE REQUEST FOR ADMISSION
In Texas state courts, the request for admission is regulated by Tex. R. Civ. P. 198, which is similar to the federal rule regulating requests for admission. A request for admission can be served by the plaintiff at any time after commencement of the action but no later than 30 days before the end of the discovery period. Requests and responses to request for admission are not filed with the court. There is a limit of 1a requests for admission in Level 1 cases, and 25 requests for Level 2 cases. Level 3 case limitations may be established by agreement of the parties or order of the court. From a practical standpoint, a smaller number of requests for admission, if carefully drafted, may accomplish more than a larger number of poorly drafted requests.

• •

© 2015 Cengage Learning. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

Copyright © 2015 Cengage Learning®

46

PART III Discovery

ADVANTAGES OF THE REQUEST FOR ADMISSION Any matter admitted by a party is considered proven for trial under Rule 198. In Texas, the failure of a party to respond automatically results in the matter being deemed admitted.

RESPONDING TO THE REQUEST FOR ADMISSIONS
A response to a request for admissions must be served on the propounding party within 30 days of service of the request, unless the parties have agreed otherwise or unless a prior court order has been entered. Rule 198 extended the time to respond to no less than 50 days after service of the citation on the responding party. This amendment also provided that the parties may agree to extend or shorten the time for responding to a request. In Texas, the response to a request for admissions need not be verified. ALTERNATIVE RESPONSES TO THE REQUEST FOR ADMISSIONS In Texas, a party has four choices of response to a request for admissions: (1) admit; (2) deny; (3) refuse to admit or deny; or (4) object. Lack of information or knowledge cannot be cited as a reason for failure to admit or deny unless the responding party states that he or she has made reasonable inquiry and that the information known or “easily obtainable” by the party is insufficient to enable him or her to admit or deny (Tex. R. Civ. P. 198.2(b)). If a party considers that a matter on which an admission is requested presents a genuine issue for trial, the party may not, on that ground alone, object to the request. He or she may deny the matter or list the reasons why it cannot be admitted or denied, subject to the provisions of paragraph 3 of Tex. R. Civ. P. 215.

DRAFTING THE REQUEST FOR ADMISSION
FORM AND CONTENT OF THE REQUEST FOR ADMISSION There is no prescribed form and content set forth in Rule 198 for a request for admission. However, the same format used for interrogatories is used in the preparation of the request for admission: introduction, instructions, definitions, and requests. This practice clarifies the intent of the party making the request and avoids problems with or objections to the use of vague or confusing terminology. Each request for admission must be made separately. The basis for this procedural rule is that part of a combined request may not be disputed, but all of it may be denied. See Exhibit 13-1 for an example of a request for admissions used in the Texas courts.

© 2015 Cengage Learning. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

Copyright © 2015 Cengage Learning®

CHAPTER 13 Request for Admission and the Future ofAddendum CHAPTER 13 Discovery

47

When a party qualifies an answer or denies only a part of the matter about which an admission is requested, the party must specify so much of the request as is true and qualify or deny the remainder.

OBJECTIONS TO THE REQUEST FOR ADMISSIONS
The same objections available under Tex. R. Civ. P. 193.2 for other discovery techniques are available in response to a request for admissions.

CHAPTER 13

Addendum
MOTIONS REGARDING ADMISSIONS
MOTION FOR PROTECTIVE ORDER Refer to Tex. R. Civ. P. 192.6 for the procedure that must be followed to obtain a protective order regarding requests for admissions. MOTION TO COMPEL FURTHER RESPONSE If the response to the request for admissions contains incomplete or evasive answers or an objection that has no merit, the requesting party may make a motion to compel further response. Unless the court determines that an objection is justified, it shall order that an answer be served. If the court determines that an answer does not

© 2015 Cengage Learning. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

48

PART III Discovery

comply with Tex. R. Civ. P. 198, it may order either that the matter be deemed admitted or that an amended answer be served. However, this provision for withdrawal or amendment is subject to the provisions of Tex. R. Civ. P. 193.5(a) governing the duty to supplement discovery responses. MOTION TO AMEND OR WITHDRAW AN ADMISSION The court may permit withdrawal or amendment of responses and deemed admissions upon a showing of good cause for such withdrawal or amendment if the court determines that the parties relying upon the responses and

deemed admissions “will not be unduly prejudiced and that the presentation of the merits of the action will be subserved by permitting the party to amend or withdraw the admission” (Tex. R. Civ. P. 198.3(b)). MOTION TO RECOVER EXPENSES INCURRED IN PROVING MATTERS NOT ADMITTED If a party denies a matter in a request for admissions and that matter is subsequently proven at trial, the court has the authority to award reasonable expenses incurred, including reasonable attorney fees (Tex. R. Civ. P. 215.4(b)).

© 2015 Cengage Learning. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

CHAPTER 13 Request for Admission and the Future of Discovery

49

PART IV Pretrial, Trial, and Posttrial
CHAPTER 14

Settlements, Dismissals, and Alternative Dispute Resolution
KEY POINTS
• • • • The structured settlement is used in cases with extensive damages and ongoing medical expenses. Installment payments in settlements are often in the form of an annuity or trust. The structured settlement involving an annuity may be drafted to provide for percentage increases to cover the cost of inflation. Under a “Mary Carter” agreement, the plaintiff and a defendant settle the litigation among themselves, but the defendant remains as a party to the lawsuit and retains a financial interest in the plaintiff’s recovery. Court approval is required for settlements involving minors, incompetents, and class actions. Workers’ compensation settlements between an employee and the company’s insurance carrier require court approval. Lloyds Ins. Co., 787 S.W.2d 938 (Tex. 1990), does not apply if a jury awards damages in excess of $100,000 to the party. STRUCTURED SETTLEMENT A structured settlement is often reached in cases with extensive damages and ongoing medical expenses that require installment payments. Normally the installment payments are in the form of an annuity or trust purchased or established by either the defendant or its liability carrier. In the case of an annuity, the defendant or its insurance carrier purchases an annuity from a life insurance carrier that makes the periodic payments. The defendant owns the annuity and has both the right to receive monthly payments from the annuity and a duty to make payments to the plaintiff. However, the annuity carrier is generally instructed to make such payments directly to the plaintiff. The structured settlement involving an annuity may be drafted to provide for percentage increases to cover the cost of inflation. Guaranteed annuities can be purchased to make payments over a guaranteed duration rather than the lifetime of an individual plaintiff. At the time of purchase of the annuity, the plaintiff normally releases all claims against the defendant. However, specific provisions should be made for the possibility of a default. A settlement is often structured to include a fixed trust. Through this investment vehicle, the defendant purchases U.S. government bonds or similar secured investments. Interest payments from the bonds are paid either to a trust account at a bank or to an individual trustee who makes the payments to the plaintiff. The principal from the trust is paid to the plaintiff or his or her estate. Structured settlements are very complex and require careful drafting.

• •

THE SETTLEMENT
Most legal disagreements do not reach the litigation stage. The majority of lawsuits are settled short of trial. Discovery activity often initiates or speeds up settlement discussions. Many cases involving money damages are sealed when the defendant agrees to pay the plaintiff a set amount of money. Generally, the agreement requires a lump-sum payment. However, some settlements contemplate installment payments. Tex. R. Civ. P. 169 was added in 2011 and calls for rules to promote the prompt, efficient, and cost effective resolution of civil actions when the amount in controversy does not exceed $100,000. This expedited actions process created by Rule 169 is mandatory. Rule 169(b) specifies that a party who prosecutes a suit under this rule cannot recover a judgment in excess of $100,000. Thus, the rule in Greenhalgh v. Service

© 2015 Cengage Learning. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

49

50

PART IV Pretrial, Trial, and Posttrial

MARY CARTER” AGREEMENT A second type of settlement in Texas is the “Mary Carter” agreement. The “Mary Carter” designation comes from the 1967 Florida case of Booth v. Mary Carter Paint Co., 202 So. 2d 8 (Fla. Dist. Ct. App. 1967). Under this type of agreement, the plaintiff and a defendant settle the litigation between themselves, but the defendant remains as a party to the lawsuit and retains a financial interest in the plaintiff’s recovery. Refer to Exhibit 14-1 for an example of a Mary Carter settlement agreement.

SETTLEMENT AGREEMENTS AND RELEASES
SETTLEMENTS FOR MINORS OR INCOMPETENTS If one of the parties to the lawsuit is either a minor or an incompetent, court approval of the settlement agreement and subsequent investment of settlement proceeds is required. A guardian ad litem is appointed for purposes of settlement negotiations.

© 2015 Cengage Learning. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

Copyright © 2015 Cengage Learning®

CHAPTER 14 Settlements, Dismissals, and Alternative Dispute Resolution

51

CLASS ACTIONS Compromise or settlement of a class action suit requires approval of the court. Notice of the proposed compromise must be given to all members of the class (Tex. R. Civ. P. 42). WORKERS’ COMPENSATION Settlements between an employee and the employer’s workers’ compensation carrier must be approved by the court. For more information on workers’ compensation, refer to The Texas Workers’ Compensation Act of 2011. UNINSURED MOTORIST INSURANCE The standard Texas automobile insurance policy has an exclusion in the uninsured motorist provision that renders settlements inapplicable to bodily injury when the injured party has settled with the party responsible for those injuries without the written consent of the insurance company. (Tex. Ins. Code Ann. § 1952.101). Tex. Ins. Code Ann. § 1952.108 provides that settlement between a plaintiff injured party and an insurer representing a motorist may not bar a subsequent suit by that motorist for his or her own personal injuries unless the settlement specifically disposes of all asserted and potential claims by the motorist, or the motorist consents in writing that a judgment in the primary suit bars any subsequent claim by the motorist.

DISMISSALS, CONSENT DECREES, AND DISTRIBUTION OF FUNDS
DISMISSALS STIPULATED DISMISSALS. Parties to a lawsuit may stipulate to a dismissal at any time and on any terms. In such a situation, a request to dismiss the case, with prejudice, should be filed. VOLUNTARY DISMISSAL ON NOTICE. Tex. R. Civ. P. 162 permits the plaintiff to voluntarily dismiss its case, or take a nonsuit, at any time before the plaintiff has introduced all of its evidence other than rebuttal evidence. Such an action is entered in the minutes of the court. Notice of the dismissal or nonsuit must be served in accordance with Tex. R. Civ. P. 21(a) on any party who has answered or has been served with process. Any dismissal pursuant to this rule that terminates the case must authorize the clerk to tax court costs against the dismissing party unless otherwise ordered by the court. Exhibit 14-2 is an example of a voluntary dismissal by nonsuit. COURT-ORDERED INVOLUNTARY DISMISSAL. In Texas, a court has the power to dismiss a case for a number of reasons. Tex. R. Civ. P. 165(a) lists as bases for dismissal: want of prosecution, failure to appear, and noncompliance with time standards.

© 2015 Cengage Learning. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

Copyright © 2015 Cengage Learning®

52

PART IV Pretrial, Trial, and Posttrial

CHAPTER 15

Trial Techniques
KEY POINTS
• • • • • A 45-day notice of court setting is required for a first trial setting. Leave of court is required for any amendment to pleadings made less than seven days before trial. A motion in, if granted, precludes the introduction of prejudicial matters at trial. A jury trial must be requested not less than 30 days in advance of the setting on the nonjury docket. Either party may invoke the rule to exclude witnesses from the courtroom. 1. 2. 3. 4. 5. a discovery schedule; amendments to pleadings; the possibility of obtaining stipulations of fact; the exchange of a list of direct fact witnesses, including the address, telephone number, and subject of the witness’s testimony; the exchange of a list of expert witnesses who will be called to testify at trial, including the address, telephone number, subject of the testimony, and opinions to be offered by the expert witness; proposed jury charge questions, instructions, and definitions for a jury case, or proposed findings of facts and conclusions of law for a nonjury case; the marking and exchange of all exhibits to be used at trial and stipulation as to the authenticity and admissibility of the exhibits; written objections to the opposite party’s exhibits, stating the basis for each objection; the identification of legal matters to be ruled on or decided by the court; contested issues of fact and simplification of the issues; all pending dilatory pleas, motions, and exceptions; the advisability of a preliminary reference of issues to a master or auditor for findings to be used as evidenced when the trial is to be by jury; and settlement of the case Refer to Tex. R. Civ. P. 166 for additional matters to be considered at the pretrial conference. PRETRIAL MOTIONS Chapter 7 of this supplement discusses a number of motions that might be presented to the court before trial. MOTION FOR CONTINUANCE. A motion for continuance may be needed if a party’s counsel is unable to prepare for trial by the trial date. The motion must be substantiated by affidavits and allege good cause for the continuance. Exhibit 15-1 is an example of a motion for continuance in state court.

6. 7. 8. 9. 10. 11. 12.

PRELIMINARY PREPARATION FOR TRIAL
TRIAL SETTING The court may set contested cases for trial on the written request of any party or on the court’s own motion, with reasonable notice of not less than 45 days to parties in the case of a first setting for trial, or by agreement of the parties. The clerk must give notice of setting and inform any nonresident attorney of the setting if the attorney provides a stamped, self-addressed envelope. Failure to furnish the requested trial date information is sufficient grounds for a continuance or new trial if it appears to the court that this action prevented the attorneys from preparing or presenting their claims or defenses (Tex. R. Civ. P. 246). AMENDING THE PLEADINGS Any amendments to pleadings should be made no later than seven days prior to trial. Any amendment after that time requires leave of court. However, the court will normally allow a party to amend after that time unless there is a showing that such filing “will operate as a surprise to the opposite party” (Tex. R. Civ. P. 63). PRETRIAL CONFERENCE The court may in its discretion require a pretrial conference to consider a number of critical matters, including the following:

13.

© 2015 Cengage Learning. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

CHAPTER 15 Trial Techniques

53

MOTION IN LIMINE The motion in limine is an important pretrial motion because, if approved, it precludes the introduction of prejudicial matters at trial. Prior to the beginning of the trial, careful consideration must be given to harmful facts or documents in your case that would not be admissible under the rules of evidence, such as settlement offers, a party’s previous criminal record, pending lawsuits, or numerous marriages of a party. This motion streamlines the trial process by avoiding delays to excuse the jury, while the attorneys argue privately in the judge’s chamber and then reassemble the jury in the courtroom. The motion in limine is normally filed before jury selection begins. Ideally, it should be worded so that the court may either grant it before the beginning of trial or

postpone a ruling until the time of trial. In some instances, a motion in limine may be granted after the trial has begun. Information in the motion should include the fact that opposing counsel’s conduct and/or facts discovered indicate that it is eminently probable that counsel intends to present the contested evidence at trial. The items and/or inferences that a party seeks to exclude must be specifically identified in a manner sufficient to show prejudice and harm. The motion should preclude mention of the motion in limine to the jury. A memorandum of authorities and order are generally presented to the court simultaneously with the motion in limine. JURY REQUEST A written request for jury trial must be filed with the clerk of court a “reasonable time” before the date set for trial on

© 2015 Cengage Learning. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

Copyright © 2015 Cengage Learning®

54

PART IV Pretrial, Trial, and Posttrial

the nonjury docket, but not less than 30 days in advance (Tex. R. Civ. P. 216(a)). Normally a $10 jury fee for district court ($5 for county court) must be deposited with the clerk of the court within the time for making a written request for a jury trial (Tex. R. Civ. P. 216(b)). Notation of the jury fee payment is entered on the docket sheet.

4. 5. 6. 7.

able to read and write; not have served as juror six days during preceding six months in district court or preceding three months in county court; not have been convicted of a misdemeanor theft or felony; and not be under indictment or legal accusation of misdemeanor theft or any felony.

PREPARATION OF WITNESSES
SUBPOENA OF WITNESSES The subpoena process for depositions, discussed in Chapter 9, is the same procedure utilized to make certain that witnesses are in attendance at trial. INVOKING THE RULE Either party may request that the witnesses on both sides be sworn and removed from the courtroom so that they cannot hear the testimony delivered by other witnesses. This practice is known as invoking the rule and is discussed in Tex. R. Civ. P. 267. Parties, their spouses, and, in some instances, representatives of the parties may not be excluded.

A legally blind person is not disqualified solely due to legal blindness but is subject to challenge for cause if in the court’s opinion the blindness renders the juror unfit to serve. This challenge for cause due to legal blindness does not count as a peremptory challenge. JURY SELECTION PROCEDURE Tex. R. Civ. P. 223–225 govern the selection of the particular jury members, based on the qualifications previously listed. The court’s initial instructions are described in Tex. R. Civ. P. 226(a), as reproduced in Exhibit 15-2. These instructions may be modified as necessary. VOIR DIRE Voir dire is the method by which the attorneys for the parties garner background information on the individual jurors, on the basis of which they can challenge a particular juror. The two types of jury challenges are the following: 1. 2. challenge to the array (to the entire jury panel) on the basis of defect or irregularity in selection or jury summons; and challenge to the individual jurors (cause or peremptory challenge).

THE JURY PROCESS
JUROR QUALIFICATIONS Tex. Gov’t Code Ann. § 62.102 lists the qualifications necessary to serve on a state court jury. A juror must be: 1. 2. 3. eighteen years or older; citizen of state, domiciliary of county, and qualified to vote; of sound mind and good moral character;

© 2015 Cengage Learning. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

Copyright © 2015 Cengage Learning®

CHAPTER 15 Trial Techniques

55

© 2015 Cengage Learning. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

56

PART IV Pretrial, Trial, and Posttrial

© 2015 Cengage Learning. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

CHAPTER 15 Trial Techniques

57

© 2015 Cengage Learning. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

58

PART IV Pretrial, Trial, and Posttrial

© 2015 Cengage Learning. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

CHAPTER 15 Trial Techniques

59

Tex. Gov’t Code Ann. § 62.105, which sets forth the procedures for voir dire in state court, allows a challenge for cause if the prospective juror is any of the following: 1. 2. 3. 4. 5. a witness in the case a person interested, directly or indirectly, in the subject matter of the suit a person related by consanguinity or affinity within the third degree to the parties a person with bias or prejudice in favor of or against either of the parties anyone who was a petit juror in the former trial of the same or another case involving the same questions of fact

VIDEOTAPING AT THE TRIAL Testimony and evidence in videotape format may be used at trial. Deposition testimony excerpts are often more effective in videotape form than when read orally to the jury. The expenses of videotaping are taxed as costs (Tex. R. Civ. P. 264). The paralegal may be asked to investigate and retain a videotape technician to edit deposition testimony for use at trial. Another function the paralegal might perform at trial is comparing the hard copy of the testimony or evidence with the videotape to ensure the accuracy of the videotaped submission. JURY CHARGE Tex. R. Civ. P. 271–279 govern the court’s charge to the jury and the preservation of error. The charge may consist of questions, definitions, and instructions. All charges requested are submitted to the court. If the trial court refuses an instruction, question, or definition, the judge must endorse that item as “Refused” and sign the refusal. The same process must be followed for charges that the court modifies. Refused or modified instructions, questions, or definitions constitute a bill of exceptions; no formal bill of exceptions is required (Tex. R. Civ. P. 276). If the court refuses to sign and endorse its refusal on a question, a formal bill of exceptions is required to preserve error. The Texas Rules of Civil Procedure provide that the trial court will prepare a charge for submission to the jury at the conclusion of the evidence. The court’s proposed charge must be delivered to the attorneys so that they can prepare and present their objections and additional requests. Tex. R. Civ. P. 273 is clear that a party must make objections and requests with regard to the charge that the court is submitting to the jury. Normally the trial judge requests the submission of the attorneys’ requests for the charge at the pretrial stage or at the beginning of the trial. However, some courts do not ask for and do not expect to receive requested issues and instructions until the conclusion of the evidence. In other instances, the court will initially prepare the charge and then submit it to the attorneys for review and objections or additional requests. The court must mark its ruling on an issue, date the issue, and sign the issue. A file-stamped copy should be obtained from the clerk of court before submission of the charge to the jury. Exhibit 15-3 contains objections to the charge as a whole and to specific questions, definitions, and instructions, as governed by Tex. R. Civ. P. 271–279. The request for a jury charge must be made in writing or a waiver occurs, for which there is no ground for appeal (Tex. R. Civ. P. 279).

Disqualification on one of these grounds is nondiscretionary. In addition, the trial court, in its discretion, may remove for cause any juror who in the court’s opinion is unfit to sit on the jury. As in federal court, peremptory challenges may be made without the statement of any reason for the challenge (Tex. R. Civ. P. 232). Each party has six peremptory challenges. An agreement as to the challenges must be reached by all parties (Tex. R. Civ. P. 233). The voir dire should be recorded to assist the parties in the preservation of errors.

THE PARALEGAL’S ROLE AT TRIAL
KEEPING TRACK OF EXHIBITS The number of exhibits offered at trial is often quite voluminous. Many exhibits will not be introduced because of objections granted by the court. For example, if a witness uses a writing on the stand to refresh his memory for the purpose of testifying, the other side may object to the use of the exhibit unless the witness furnishes a copy of the writing. If opposing counsel objects to production of the exhibit, the court may not permit the introduction of that exhibit into evidence (Tex. R. Evid. 612). The original of an exhibit is required, but under certain circumstances (such as loss or destruction of the original) a copy may be used in place of the original. Summaries of voluminous exhibits may be introduced in lieu of the exhibits. The summary may be in the form of a chart or calculation.

© 2015 Cengage Learning. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

60

PART IV Pretrial, Trial, and Posttrial

CHAPTER 16

Posttrial Practice
KEY POINTS
• • • • • A motion for new trial must be filed within 30 days after the judgment or other order complained of is signed. The appellate practice in state court is regulated by Tex. R. App. P. 1–234. An appeal is normally perfected with the filing of the notice of appeal. The transcript of the trial proceedings is the statement of facts. The enforcement of judgments in Texas is regulated by Tex. R. Civ. P. 621 et seq.

POSTTRIAL MOTIONS
Trial and posttrial motions in state court matters are similar to those in federal court. The types and number of motions made normally depend on whether the case is tried with or without a jury. ENTRY OF JUDGMENT Tex. R. Civ. P. 306(a) governs the entry of judgments in state courts. The timing for most posttrial motions generally depends on when the judgment was entered and when and if notice of entry of the judgment was given to all parties. The official entry of judgment is the date the judge signed the order.

© 2015 Cengage Learning. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

Copyright © 2015 Cengage Learning®

CHAPTER 16 Posttrial Practice

61

In district and county courts, the clerk of court is required to immediately give notice to the parties or their attorneys of record, by first-class mail, that the judgment or order was signed. If a party against whom the judgment was rendered has not received the required notice nor acquired actual knowledge of the order, the effective date of the judgment is the date that the party receives notice or acquires knowledge of the judgment, but in no event shall these periods begin more than 90 days after the original judgment or other appealable order was signed. MOTION FOR A DIRECTED VERDICT Tex. R. Civ. P. 268 provides for a motion for directed verdict. Normally the motion for directed verdict is made after all parties have presented their evidence at trial of the case. In some instances the motion is made with respect to the entire case; in other cases the motion may relate only to certain issues in the case. For example, in the Paragon Centre case discussed in the text, the attorneys for Paragon Centre might have made a motion for directed verdict limited to the issue of liability. MOTION FOR A JUDGMENT NOTWITHSTANDING THE VERDICT Tex. R. Civ. P. 301 allows a party to raise a motion for a judgment notwithstanding the verdict in a case tried in state court. This motion essentially asks the court to disregard the jury’s verdict and make its own determination in the matter. REQUEST FOR FINDINGS OF FACT AND CONCLUSIONS OF LAW In a district or county court nonjury case, any party may file a request for findings of fact and conclusions of law within 20 days after the judgment is signed. The clerk of court must immediately call such request to the attention of the judge who tried the case. The party making the request serves the request

on all parties. Tex. R. Civ. P. 296 governs the request for findings of fact and conclusions of law. The court must file its findings of fact and conclusions of law within 20 days after receipt of the request and cause a copy to be mailed to each party to the suit. If the court fails to file its response within that period, the party making the request must, within 30 days after filing the original request, file with the clerk and serve on all parties a notice of past due findings of fact and conclusions of law, which the clerk must immediately call to the court’s attention. With this filing, the time for the court to file its response is extended to 40 days from the date of the original request. Within 10 days after the court files its original findings of fact and conclusions of law, any party may file with the clerk of court a request for additional or amended findings of fact or conclusions of law, to which the court must respond within 10 days. The request and response must be served on all parties. MOTION FOR A NEW TRIAL Tex. R. Civ. P. 320–329(b) regulate motions for new trials in state court proceedings. The grounds for such a motion are found in Tex. R. Civ. P. 320 and are basically the same as in federal court. A motion for new trial is required to raise these points on appeal: 1. 2. 3. 4. 5. a complaint on which evidence must be heard, such as jury misconduct, newly discovered evidence, or failure to set aside a judgment by default; a complaint of factual insufficiency of the evidence to support a jury finding; a complaint that a jury finding is against the overwhelming weight of the evidence; a complaint of inadequate or excessive damages found by the jury; and incurable jury argument if not otherwise ruled on by the trial court.

© 2015 Cengage Learning. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

Copyright © 2015 Cengage Learning®

62

PART IV Pretrial, Trial, and Posttrial

© 2015 Cengage Learning. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

CHAPTER 16 Posttrial Practice

63

© 2015 Cengage Learning. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

64

PART IV Pretrial, Trial, and Posttrial

© 2015 Cengage Learning. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

CHAPTER 16 Posttrial Practice

65

Tex. R. Civ. P. 326 limits to two the number of new trials that may be granted to either party in the same cause because of insufficiency or weight of the evidence. Any motion for a new trial must be filed within 30 days after the judgment or other order complained of is signed.

THE PRELIMINARY STEPS IN THE APPEAL
Appellate practice in state court is regulated by Tex. R. App. P. 1–234 and numerous procedural rules of the Texas Rules of Civil Procedure.

© 2015 Cengage Learning. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

66

PART IV Pretrial, Trial, and Posttrial

STEPS IN APPEAL The appellate rules govern appeals at all levels, from the county court to an appeal to the Texas Supreme Court or court of criminal appeals. Exhibit 16-1 is a chart of the steps that must be followed to perfect an appeal in state court. The pertinent rules are cited for each step. Normally, an appeal is perfected with the filing of a notice of appeal with the trial court clerk. Tex. R. Civ. P. 168 is a new rule, added to implement amendments to section 51.014(d)–(f) of the Texas Civil Practice and Remedies Code and applies only to cases filed on or after September 1, 2011. Rule 168 clarifies that the trial court’s permission to appeal should be included in the order to be appealed rather than in a separate order. NOTICE OF APPEAL The notice of appeal is the only document necessary to perfect an appeal. The requirements for a notice of appeal are quite simple. Tex. R. App. P. 25.1(d) merely provides that the notice should contain the number and style of the case, the court in which it is pending, and that the appellant desires to appeal from the judgment or some designated portion of the judgment. Service requirements for the notice of appeal are the same as for an appeal bond. TERRITORIAL JURISDICTION FOR FILING AN APPEAL Tex. Gov’t Code Ann. § 22.201 assigns the territorial jurisdiction of each of the fourteen courts of appeals to “court of appeals districts.” Exhibit 16-2 lists the jurisdiction and primary seats for the court of appeals districts in Texas. Notice that two courts of appeals districts are listed for Houston. Cases are assigned at random in this district. In East Texas, a few counties are in more than one court of appeals district. There an appellant may choose from either of the two available courts of appeals districts. DOCKETING THE APPEAL Each case filed in a court of appeals must be assigned a docket number that consists of the following four parts, separated by hyphens: 1. 2. 3. 4. the number of the supreme judicial district; the last two digits of the year in which the case is filed; the number assigned to the case; and the designation “CV” for a civil appeal or “CR” for criminal cases.

APPEAL BOND An appeal bond secures the ultimate payment of all costs that have accrued in the trial court and the costs to be incurred on appeal. In lieu of a surety bond, the appellant may deposit with the trial court clerk either cash or a cashier’s check payable to the clerk or, with leave of court, a negotiable obligation of the federal government or of any federally insured and federally or state chartered bank or savings and loan association (Tex. R. App. P. 24.2). The bond must have sufficient surety. In the event of a cash deposit, the clerk prepares a certificate of cash deposit, which is included in the transcript as a substitute for the appeal bond. When security for costs is required, the bond or affidavit in lieu must be filed with the clerk of court within 30 days after the judgment is signed, or within 90 days after the judgment is signed if a timely motion for new trial has been filed or if any party has timely filed a request for findings of fact and conclusions of law in a case tried without a jury. Notification of the filing of the bond or certificate of deposit must be promptly given by the appellant by serving a copy on all parties to the litigation. Failure to serve the notice of filing may be grounds for dismissal of the appellant’s appeal or other appropriate action if an appellee is prejudiced by the failure to provide notice of filing. AFFIDAVIT OF INABILITY TO PAY COSTS In some cases, the person desiring to bring an appeal is unable to pay the attendant costs. An appellant may file in the trial court an affidavit stating that the appellant is unable to pay or give the security for the costs of appeal. The provisions for contesting such an affidavit are governed by Tex. R. App. P. 20.1(a)(1). ORDERING THE REPORTER’S RECORD In state courts, the transcript of the trial proceedings is referred to as the reporter record. Unlike the transcript of the court record, the reporter’s record is not a prerequisite to an appeal. However, from a practical standpoint, it is an important part of the appeals process. The appellant must make a written request to the court reporter at or before the time for perfecting the appeal, designating the evidence or other proceedings to be included. A copy of the request must be filed with the clerk of the trial court and a copy served on the appellee (Tex. R. App. P. 34.6(b)). The appellee has 10 days from the date of the appellant’s request for the reporter’s record to request that additional portions of the evidence or proceedings be included. The court reporter is responsible for filing the reporter’s record in the appellate court. If the attorney discovers after the expiration of the 15-day grace period that the court reporter has not filed the reporter’s record, the court cannot grant an extension.

For example, the docket number “11-03-00484-CV” indicates that the appeal was in the third district, filed in 2011, case number 00484, and is a civil matter.

© 2015 Cengage Learning. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

CHAPTER 16 Posttrial Practice

67

© 2015 Cengage Learning. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

Copyright © 2015 Cengage Learning®

68

PART IV Pretrial, Trial, and Posttrial

Generally the appellant will request a complete reporter’s record. An appellant may also request a partial record but must include with the request to the court reporter a list of the appellate points it intends to raise. Tex. Gov’t Code Ann. § 52.041 and 52.046 and Tex. R. App. P. 34.6 outline the duties of a court reporter in the preparation of a reporter’s record. The reporter’s record should include the following: front cover; an index of each volume, consisting of an alphabetical and chronological index referring to the pages of direct, cross, redirect, and re-cross-examination; an index of the exhibits by number, description, and page in the reporter’s record in which the

exhibit is identified, offered, omitted, or excluded; and a certification by the court reporter. The appellant must pay or make satisfactory arrangements to pay the court reporter upon completion and delivery of the reporter’s record. TRANSMITTING THE RECORD In state court, the clerk’s record includes all pleadings on which the trial was held; the judgment; the appeal bond; the docket sheet, and similar documents (Tex. R. App. P. 34.5). The reporter’s record consists of the court reporter’s

© 2015 Cengage Learning. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

CHAPTER 16 Posttrial Practice

69

transcribed notes of the evidence, objections, rulings made in open court, and the voir dire and jury argument, if requested. Only live pleadings are included in the transcript. This specifically excludes pleadings that were superseded by subsequently filed amended pleadings and briefs. As in the federal court, the burden is on the appellant to ensure that a sufficient record is presented to establish the error that requires the appellate court’s reversal. Any party may file with the clerk a written designation of matters for inclusion in the transcript. Under Rule 34.5, certain materials must be included in the transcript if the parties do not designate the matters to be incorporated into the transcript. These materials are listed in Exhibit 16-1. If the appellant desires any materials to be included in the clerk’s record other than those listed in Rule 34.5, a letter must be sent to the clerk, at or before the clerk’s record is prepared, with a copy to opposing counsel, listing the documents desired in the record. Normally this request is in the form of a pleading to ensure that the designation itself becomes a part of the record. The clerk’s record and reporter’s record are due in the appellate court within 60 days after the judgment is signed, unless a motion for new trial has been filed or any party has timely filed a request for findings of fact and conclusions of law in a nonjury trial. In these two situations, the transcript and statement of facts must be filed within 120 days after the judgment is signed. The record may be supplemented or amended if any item material to a party’s case is omitted from the clerk’s record or reporter’s record. This addition may be by stipulation of the parties, by order of the trial court, or by order of the appellate court (Tex. R. App. P. 34.5(c)).

of the argument, argument, prayer, signature, proof of service, and the appendix.

COORDINATING THE ORAL ARGUMENT
PREPARING FOR THE ORAL ARGUMENT Tex. R. App. P. 39 directs that a party who desires oral argument must make a request for same when the party’s brief is filed. Failure to make the request generally waives the right to argue. Some state appellate courts prefer that the request be typed on the cover of the brief: “ORAL ARGUMENT REQUESTED.” Other appellate courts prefer that the request be in the form of a letter. The court will set the time that will be allowed for argument.

FINAL PROCEDURES
APPEAL PROCEDURES MOTION FOR REHEARING. Under Tex. R. App. P. 49, a party may file a motion for rehearing within 15 days after rendition of the judgment or decision of the court. No reply to a motion for rehearing is necessary unless requested by the court. If the majority of the justices of the court of appeals or of the panel that was assigned the case are of the opinion that the case should be reheard, the motion for rehearing is granted. If the majority is of the opinion that it should not be reheard, the motion for rehearing is denied. A second motion for rehearing must be filed within 15 days after the court’s decision on the prior motion for rehearing. The Texas Supreme Court does not have jurisdiction over a complaint in an application for a writ of review unless the complaint was made in a motion for rehearing. APPLICATION FOR WRIT OF REVIEW IN THE SUPREME COURT Most appearances before the Texas Supreme court involve appellate review of court of appeals’ decisions in cases appealed from trial courts’ judgments. Tex. R. App. P. 53 provides that an application for writ of review must be filed with the clerk of the court of appeals within 45 days after the date the court of appeals rendered judgment, if no motion for rehearing is timely filed, or the date of the court of appeals’ last ruling on all timely filed motions for rehearing. The writ of error process is two-tiered. It involves a ruling on the application followed by a judgment if the application is granted. If the application is not granted, the Supreme

THE APPELLATE BRIEF
DRAFTING THE APPELLATE BRIEF The format for an appellate brief is described in detail in Tex. R. App. P. 38. An appellant or an appellee’s brief must be no longer than 50 pages, exclusive of pages containing the identity of parties and counsel, the table of contents, the index of authorities, the statement of the case, the issues presented, the signature, the proof of service, and the appendix. A reply brief must be no longer than 25 pages, exclusive of the items stated above. The aggregate number of pages of all briefs filed by a party must not exceed 90, exclusive of the items stated above. The court may, on motion, permit a longer brief. The brief may be typewritten or printed. If typewritten rather than printed, the brief must be double-spaced. CONTENTS OF BRIEF The appellate brief includes an identity of parties and counsel, table of contents, index of authorities, statement of the case, issues presented, statement of facts, summary

© 2015 Cengage Learning. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

70

PART IV Pretrial, Trial, and Posttrial

Court’s review is completed at the application stage and the court of appeals’ judgment stands. The granting of the application generally indicates that the required number of justices believe a possibility exists that the court of appeals committed error that should be corrected. When an application is granted, the court normally sets the matter for oral argument, following which it enters a judgment of reversal or affirmation (or a combination) and delivers an opinion. The standard components of a petition for review are contained in Tex. R. App. P. 53.2. Twelve copies of the application must be filed. The application may not exceed 50 pages, exclusive of the table of contents, index of authorities, points of error, and addendum. A motion for extension of time to file the application must be filed within 15 days after the last date for filing the motion. The request for additional time should contain the reasons that additional time is needed. POSTTRIAL JUDGMENT PROCEDURES The enforcement of judgments in Texas is regulated by Tex. R. Civ. P. 621 et seq. These rules provide methods for discovering the financial condition of a judgment debtor and the procedures for satisfying a judgment. Immediately after a judgment has been entered, the judgment creditor should create a judgment lien on the debtor’s nonexempt real property by recording and indexing an abstract of judgment—an index of the lien—in the county or counties in which the debtor has real property. A lien on the debtor’s nonexempt personal property in a particular county is created through the levy of a writ of execution. The timing of the filing of an abstract of judgment is critical, since the first to record an abstract of judgment has a priority lien on present and future real property holdings of the debtor. An abstract of judgment may be issued immediately upon entry of a final judgment in the court’s minute book, even if a motion for new trial is filed or the judgment is appealed. The essential requirements for an abstract of judgment are contained in Tex. Prop. Code Ann. § 52.003 and include the following: 1. 2. the name(s) of plaintiff(s) and defendant(s); the birth date(s) of defendant(s), if available; if not, the notation should be “birth date(s) and driver’s license number(s) of defendant(s) unknown to the clerk of the court at this time”; the last three numbers of the driver’s license of the defendant(s), if available; the last three numbers of the social security number of defendant(s), if available; the number of the suit in which the judgment was rendered; the defendant’s address or, if the address is not shown in the lawsuit, the nature of the citation and the date and place of service of the citation; the date on which the judgment was entered; the amount of the judgment and the balance due;

9. the rate of interest specified in the judgment; and 10. the signature and seal of the clerk of court. Extreme caution is necessary when securing an abstract of judgment, as the failure to correctly index the abstract can render the judgment lien void. WRIT OF EXECUTION A writ of execution may be issued 30 days after the entry of a final judgment or 30 days after a motion for new trial is overruled, if no supersedeas bond or notice of appeal has been filed and approved. The writ may be issued before the expiration of the 30-day period if it is accompanied by an affidavit from the creditor or its attorney stating that the debtor is about to remove its personal property from the county or transfer the property for the purpose of defrauding the creditor (Tex. R. Civ. P. 628). Any writ of execution must be issued within 12 months of the judgment so that the judgment can be renewed within the prescribed 10-year period. Refer to Tex. R. Civ. P. 629 and 622 for the requirements for a writ of execution. DISCOVERING JUDGMENT DEBTOR’S ASSETS Tex. R. Civ. P. 621a provides that pretrial discovery procedures can be used after judgment to enforce collection of the judgment. Pretrial discovery rules also apply to postjudgment discovery. Postjudgment discovery need not be delayed for the 30 days after which the judgment becomes final. It may begin any time after the judgment is signed. ORAL DEPOSITION BY NONSTENOGRAPHIC MEANS An efficient and inexpensive postjudgment discovery technique is the oral deposition by nonstenographic means. This deposition may be taken without a court reporter, with only a tape recorder or dictating machine. In the event the debtor fails to appear for the deposition, a motion for sanctions and a hearing are appropriate. If the debtor is found to be in contempt of court, the clerk of court issues a writ of attachment and the sheriff or constable arrests the defendant and brings the defendant to court. POSTJUDGMENT GARNISHMENT Tex. R. Civ. P. 657–679 govern postjudgment garnishment. A writ of garnishment may be obtained after judgment under the following conditions (Tex. Civ. Prac. & Rem. Code Ann. § 63.001): 1. The creditor has a valid and final judgment against the debtor. (It is not necessary to wait 30 days or until the judgment is no longer appealable.)

3. 4. 5. 6. 7. 8.

© 2015 Cengage Learning. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

CHAPTER 16 Posttrial Practice

71

2. 3.

The debtor has not filed an approved supersedeas bond to suspend execution on the judgment. The creditor files an affidavit that to his or her knowledge, the judgment debtor does not have in his or her possession in Texas sufficient property subject to execution to satisfy the judgment.

SUPERSEDING THE JUDGMENT A writ of execution may not be issued on a judgment until the expiration of 30 days after the judgment is signed, or if a timely motion for new trial is filed, until the expiration of 30 days after the motion is overruled either by order or by operation of law (Tex. R. Civ. P. 627). However, there is no automatic stay of the judgment in relation to the issuance of a writ of garnishment, which may be granted at any time after the judgment is signed unless a supersedeas bond has been filed and approved (Tex. R. Civ. P. 657). An automatic stay is also not available for any discovery in aid of enforcement of the judgment or other postjudgment remedies (Tex. R. Civ. P. 621). SUPERSEDEAS BOND The filing and approval of a supersedeas bond suspends execution on the judgment (Tex. R. App. P. 24.1(f)) and suspends the execution of a writ of garnishment or postjudgment discovery (Tex. R. Civ. P. 621a). There is no statutory deadline for filing a supersedeas bond. The trial court may, even after the expiration of its plenary power over the judgment, fix the amount, type, and sufficiency of the surety. A supersedeas bond must be payable to the judgment creditor and contingent upon the judgment debtor prosecuting the appeal or writ of error with effect. The bond must be sufficient to pay any judgment, sentence, or decree and damages and costs as the court may award (Tex. R. App. P. 24.2). The amount of the supersedeas bond depends on the nature of the relief awarded by the judgment. If the judgment grants a monetary recovery, the amount of the bond must be at least equal to the amount of the judgment, interest, and costs (Tex. R. App. P. 24.2). A supersedeas bond must be approved by the trial court clerk, subject to review by the trial court at a hearing (Tex. R. App. P. 24.2). If the judgment awards nonmonetary relief, the trial court is not required to approve the actual bond but must set the amount and terms of the bond. A supersedeas bond also often operates as an appeal bond. The supersedeas bond must be sufficient to secure the costs and must be filed within the prescribed time frame for an appeal bond (Tex. R. App. P. 24.2). As an alternative to filing a supersedeas bond, the judgment debtor may deposit cash or a negotiable obligation of the United States or a federal agency or, with leave of court, a negotiable obligation of a state-chartered or federally chartered agency (Tex. R. App. P. 24.1 (c)(1)). In this type of deposit, the clerk’s certificate reflecting the deposit is a substitution for the actual supersedeas bond.

A postjudgment garnishment is a separate suit but should be brought in the court that entered the judgment to be enforced. The garnishment action is brought against the third party garnishee as defendant; the judgment debtor usually is not a necessary party to the garnishment. All nonexempt personal property of the judgment debtor held by the garnishee may be attached by the judgment creditor through garnishment, including, for example, bank accounts, safety deposit boxes, stock, promissory notes, and trust funds of which the debtor is a beneficiary. TURNOVER ORDERS The turnover statute permits a judgment creditor to reach property of a judgment debtor that cannot be readily attached or levied on through ordinary legal process, such as property outside the jurisdiction or state, or intangible property rights such as copyrights or rights to payments under a contract (Tex. Civ. Prac. & Rem. Code Ann. § 31.002). RECEIVERSHIP The court may appoint a receiver for the judgment debtor’s property to take possession of and sell the nonexempt property and pay the proceeds to the judgment creditor in an amount sufficient to satisfy the judgment (Tex. Civ. Prac. & Rem. Code Ann. § 31.002(b)(3)). Normally three days’ notice and a hearing are required for the appointment of a receiver. A bond is required before the appointment of a receiver and is regulated by Tex. R. Civ. P. 695(a). TEMPORARY RESTRAINING ORDERS AND INJUNCTIONS Tex. Civ. Prac. & Rem. Code Ann. § 31.002(a) permits injunctions and temporary restraining orders to assist a judgment creditor in reaching a judgment debtor’s property to satisfy the judgment.

© 2015 Cengage Learning. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

72

PART IV Pretrial, Trial, and Posttrial

APPENDIX A Internet Sites Relating to Litigation (Federal and Texas Specific)
SUBJECT
American Bar Association Americans with Disabilities Act Bureau of Labor Statistics ERISA Code of Federal Regulations Congressional Telephone, Fax, and E-Mail Information Expert Witness Directories Federal Rules of Civil Procedure Federal Rules of Evidence Fifth Circuit Court of Appeals FindLaw ’Lectric Law Library Library of Congress Municipal Codes Occupational Safety and Health Administration Opinions of the Attorney General—TX Securities and Exchange Commission (EDGAR) Social Security Administration State Bar of Texas—CLE Information Supreme Court Cases Texas Administrative Code Texas Constitution Texas Government Home Page Texas Legislative Reference Library Texas Legislature Online Texas Register Texas Rules of Appellate Procedure Texas Rules of Civil Evidence Texas Rules of Civil Procedure Texas Rules of Criminal Evidence Texas Secretary of State Texas Statutes Th e White House U.S. Census Bureau U.S. Constitution U.S. Department of Labor

SITE http://www.abanet.org http://www.ada.gov http://www.stats.bls.gov http://www.dol.gov/topic/health-plans/erisa.htm http://www.gpoaccess.gov/cfr http://www.contactingthecongress.org/ http://www.expertwitness.com http://www.law.cornell.edu/rules/frcp/ http://www.law.cornell.edu/rules/fre/ http://www.ca5.uscourts.gov/ http://www.fi ndlaw.com http://www.lectlaw.com http://www.loc.gov http://www.municode.com http://www.osha.gov http://www.oag.state.tx.us http://www.sec.gov http://www.ssa.gov http://www.texasbarcle.com http://supct.law.cornell.edu/supct/ http://www.sos.state.tx.us/tac/ http://www.statutes.legis.state.tx.us http://www.texas.gov http://www.lrl.state.tx.us http://www.capitol.state.tx.us http://sos.state.tx.us http://www.supreme.courts.state.tx.us/rules http://www.supreme.courts.state.tx.us/rules http://www.supreme.courts.state.tx.us/rules http://www.supreme.courts.state.tx.us/rules http://www.sos.state.tx.us http://www.statutes.legis.state.tx.us http://www.whitehouse.gov http://www.census.gov/ http://www.law.cornell.edu/constitution http://www.dol.gov

© 2015 Cengage Learning. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

72