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TEXAS RULES OF CIVIL PROCEDURE
PART II - RULES OF PRACTICE IN DISTRICT AND COUNTY COURTS
SECTION 1. GENERAL RULES
RULE 15. WRITS AND PROCESS
The style of all writs and process shall be "The State of Texas;" and unless otherwise specially
provided by law or these rules every such writ and process shall be directed to any sheriff or any
constable within the State of Texas, shall be made returnable on the Monday next after expiration
of twenty days from the date of service thereof, and shall be dated and attested by the clerk with the
seal of the court impressed thereon; and the date of issuance shall be noted thereon.
RULE 16. SHALL ENDORSE ALL PROCESS
Every officer or authorized person shall endorse on all process and precepts coming to his hand the
day and hour on which he received them, the manner in which he executed them, and the time and
place the process was served and shall sign the returns officially.
RULE 17. OFFICER TO EXECUTE PROCESS
Except where otherwise expressly provided by law or these rules, the officer receiving any process
to be executed shall not be entitled in any case to demand his fee for executing the same in advance
of such execution, but his fee shall be taxed and collected as other costs in the case.
RULE 18. WHEN JUDGE DIES DURING TERMS, RESIGNS OR IS DISABLED
If the judge dies, resigns, or becomes unable to hold court during the session of court duly convened
for the term, and the time provided by law for the holding of said court has not expired, such death,
resignation, or inability on the part of the judge shall not operate to adjourn said court for the term,
but such court shall be deemed to continue in session. If a successor to such judge shall qualify and
assume office during the term, or if a judge be transferred to said district from some other judicial
district, he may continue to hold said court for the term provided, and all motions indisposed of shall
be heard and determined by him, and statements of facts and bills of exception shall be approved by
him. If the time for holding such court expires before a successor shall qualify, and before a judge
can be transferred to said district from some other judicial district, then all motions pending,
including those for new trial, shall stand as continued in force until such successor has qualified and
assumed office, or a judge has been transferred to said district who can hold said court, and
thereupon such judge shall have power to act thereon at the succeeding term, or on an earlier day in
vacation, on notice to all parties to the motion, and such orders shall have the same effect as if
rendered in term time. The time for allowing statement of facts and bills of exception from such
orders shall date from the time the motion was decided.
RULE 18a. RECUSAL OR DISQUALIFICATION OF JUDGES
(a) At least ten days before the date set for trial or other hearing in any court other than the
Supreme Court, the Court of Criminal Appeals or the court of appeals, any party may file
with the clerk of the court a motion stating grounds why the judge before whom the case is
pending should not sit in the case. The grounds may include any disability of the judge to sit
in the case. The motion shall be verified and must state with particularity the grounds why
the judge before whom the case is pending should not sit. The motion shall be made on
personal knowledge and shall set forth such facts as would be admissible in evidence
provided that facts may be stated upon information and belief if the grounds of such belief
are specifically stated.
(b) On the day the motion is filed, copies shall be served on all other parties or their counsel of
record, together with a notice that movant expects the motion to be presented to the judge
three days after the filing of such motion unless otherwise ordered by the judge. Any other
party may file with the clerk an opposing or concurring statement at any time before the
motion is heard.
(c) Prior to any further proceedings in the case, the judge shall either recuse himself or request
the presiding judge of the administrative judicial district to assign a judge to hear such
motion. If the judge recuses himself, he shall enter an order of recusal and request the
presiding judge of the administrative judicial district to assign another judge to sit, and shall
make no further orders and shall take no further action in the case except for good cause
stated in the order in which such action is taken.
(d) If the judge declines to recuse himself, he shall forward to the presiding judge of the
administrative judicial district, in either original form or certified copy, an order of referral,
the motion, and all opposing and concurring statements. Except for good cause stated in the
order in which further action is taken, the judge shall make no further orders and shall take
no further action in the case after filing of the motion and prior to a hearing on the motion.
The presiding judge of the administrative judicial district shall immediately set a hearing
before himself or some other judge designated by him, shall cause notice of such hearing to
be given to all parties or their counsel, and shall make such other orders including orders on
interim or ancillary relief in the pending cause as justice may require.
(e) If within ten days of the date set for trial or other hearing a judge is assigned to a case, the
motion shall be filed at the earliest practicable time prior to the commencement of the trial
or other hearing.
(f) If the motion is denied, it may be reviewed for abuse of discretion on appeal from the final
judgment. If the motion is granted, the order shall not be reviewable, and the presiding judge
shall assign another judge to sit in the case.
(g) The Chief Justice of the Supreme Court may also appoint and assign judges in conformity
with this rule and pursuant to statute.
(h) If a party files a motion to recuse under this rule and it is determined by the presiding judge
or the judge designated by him at the hearing and on motion of the opposite party, that the
motion to recuse is brought solely for the purpose of delay and without sufficient cause, the
judge hearing the motion may, in the interest of justice, impose any sanction authorized by
Rule 215(2)(b).
RULE 18b. GROUNDS FOR DISQUALIFICATION AND RECUSAL OF JUDGES
(1) Disqualification. Judges shall disqualify themselves in all proceedings in which:
(a) they have served as a lawyer in the matter in controversy, or a lawyer with whom
they previously practiced law served during such association as a lawyer concerning
the matter; or
(b) they know that, individually or as a fiduciary, they have an interest in the subject
matter in controversy; or
(c) either of the parties may be related to them by affinity or consanguinity within the
third degree.
(2) Recusal. A judge shall recuse himself in any proceeding in which:
(a) his impartiality might reasonably be questioned;
(b) he has a personal bias or prejudice concerning the subject matter or a party, or
personal knowledge of disputed evidentiary facts concerning the proceeding;
(c) he or a lawyer with whom he previously practiced law has been a material witness
concerning it;
(d) he participated as counsel, adviser or material witness in the matter in controversy,
or expressed an opinion concerning the merits of it, while acting as an attorney in
government service;
(e) he knows that he, individually or as a fiduciary, or his spouse or minor child residing
in his household, has a financial interest in the subject matter in controversy or in a
party to the proceeding, or any other interest that could be substantially affected by
the outcome of the proceeding;
(f) he or his spouse, or a person within the third degree of relationship to either of them,
or the spouse of such a person:
(i) is a party to the proceeding or an officer, director, or trustee of a party;
(ii) is known by the judge to have an interest that could be substantially affected
by the outcome of the proceeding;
(iii) is to the judge's knowledge likely to be a material witness in the proceeding.
(g) he or his spouse, or a person within the first degree of relationship to either of them,
or the spouse of such a person, is acting as a lawyer in the proceeding.
(3) A judge should inform himself about his personal and fiduciary financial interests, and make
a reasonable effort to inform himself about the personal financial interests of his spouse and
minor children residing in his household.
(4) In this rule:
(a) "proceeding" includes pretrial, trial, or other stages of litigation;
(b) the degree of relationship is calculated according to the civil law system;
(c) "fiduciary" includes such relationships as executor, administrator, trustee, and
guardian;
(d) "financial interest" means ownership of a legal or equitable interest, however small,
or a relationship as director, adviser, or other active participant in the affairs of a
party, except that:
(i) ownership in a mutual or common investment fund that holds securities is not
a "financial interest" in such securities unless the judge participates in the
management of the fund;
(ii) an office in an educational, religious, charitable, fraternal, or civic
organization is not a "financial interest" in securities held by the organization;
(iii) the proprietary interest of a policyholder in a mutual insurance company, of
a depositor in a mutual savings association, or a similar proprietary interest,
is a "financial interest" in the organization only if the outcome of the
proceeding could substantially affect the value of the interest;
(iv) ownership of government securities is a "financial interest" in the issuer only
if the outcome of the proceeding could substantially affect the value of the
securities;
(v) an interest as a taxpayer or utility ratepayer, or any similar interest, is not a
"financial interest" unless the outcome of the proceeding could substantially
affect the liability of the judge or a person related to him within the third
degree more than other judges.
(5) The parties to a proceeding may waive any ground for recusal after it is fully disclosed on
the record.
(6) If a judge does not discover that he is recused under subparagraphs (2)(e) or (2)(f)(iii) until
after he has devoted substantial time to the matter, he is not required to recuse himself if he
or the person related to him divests himself of the interest that would otherwise require
recusal.
RULE 18c. RECORDING AND BROADCASTING OF COURT PROCEEDINGS
A trial court may permit broadcasting, televising, recording, or photographing of proceedings in the
courtroom only in the following circumstances:
(a) in accordance with guidelines promulgated by the Supreme Court for civil cases, or
(b) when broadcasting, televising, recording, or photographing will not unduly distract
participants or impair the dignity of the proceedings and the parties have consented,
and consent to being depicted or recorded is obtained from each witness whose
testimony will be broadcast, televised, or photographed, or
(c) the broadcasting, televising, recording, or photographing of investiture, or ceremonial
proceedings.
RULE 19. NON-ADJOURNMENT OF TERM
Every term of court shall commence and convene by operation of law at the time fixed by statute
without any act, order, or formal opening by a judge or other official thereof, and shall continue to
be open at all times until and including the last day of the term unless sooner adjourned by the judge
thereof.
RULE 20. MINUTES READ AND SIGNED
On the last day of the session, the minutes shall be read, corrected and signed in open court by the
judge. Each special judge shall sign the minutes of such proceedings as were had by him.
RULE 21. FILING AND SERVING PLEADINGS AND MOTIONS
Every pleading, plea, motion or application to the court for an order, whether in the form of a
motion, plea or other form of request, unless presented during a hearing or trial, shall be filed with
the clerk of the court in writing, shall state the grounds therefor, shall set forth the relief or order
sought, and at the same time a true copy shall be served on all other parties, and shall be noted on
the docket.
An application to the court for an order and notice of any hearing thereon, not presented during a
hearing or trial, shall be served upon all other parties not less than three days before the time
specified for the hearing, unless otherwise provided by these rules or shortened by the court.
If there is more than one other party represented by different attorneys, one copy of such pleading
shall be delivered or mailed to each attorney in charge.
The party or attorney of record, shall certify to the court compliance with this rule in writing over
signature on the filed pleading, plea, motion or application.
After one copy is served on a party that party may obtain another copy of the same pleading upon
tendering reasonable payment for copying and delivering.
RULE 21a. METHODS OF SERVICE
Every notice required by these rules, and every pleading, plea, motion, or other form of request
required to be served under Rule 21, other than the citation to be served upon the filing of a cause
of action and except as otherwise expressly provided in these rules, may be served by delivering a
copy to the party to be served, or the party's duly authorized agent or attorney of record, as the case
may be, either in person or by agent or by courier receipted delivery or by certified or registered mail,
to the party's last known address, or by telephonic document transfer to the recipient's current
telecopier number, or by such other manner as the court in its discretion may direct. Service by mail
shall be complete upon deposit of the paper, enclosed in a postpaid, properly addressed wrapper, in
a post office or official depository under the care and custody of the United States Postal Service.
Service by telephonic document transfer after 5:00 p.m. local time of the recipient shall be deemed
served on the following day. Whenever a party has the right or is required to do some act within a
prescribed period after the service of a notice or other paper upon him and the notice or paper is
served upon him by mail or by telephonic document transfer, three days shall be added to the
prescribed period. Notice may be served by a party to the suit, an attorney of record, a sheriff or
constable, or by any other person competent to testify. The party or attorney of record shall certify
to the court compliance with this rule in writing over signature and on the filed instrument. A
certificate by a party or an attorney of record, or the return of the officer, or the affidavit of any other
person showing service of a notice shall be prima facie evidence of the fact of service. Nothing
herein shall preclude any party from offering proof that the notice or instrument was not received,
or, if service was by mail, that it was not received within three days from the date of deposit in a
postoffice or official depository under the care and custody of the United States Postal Service, and
upon so finding, the court may extend the time for taking the action required of such party or grant
such other relief as it deems just. The provisions hereof relating to the method of service of notice
are cumulative of all other methods of service prescribed by these rules.
RULE 21b. SANCTIONS FOR FAILURE TO SERVE OR DELIVER COPY OF
PLEADINGS AND MOTIONS
If any party fails to serve on or deliver to the other parties a copy of any pleading, plea, motion, or
other application to the court for an order in accordance with Rules 21 and 21a, the court may in its
discretion, after notice and hearing, impose an appropriate sanction available under Rule 215-2b.
SECTION 2. INSTITUTION OF SUIT
RULE 22. COMMENCED BY PETITION
A civil suit in the district or county court shall be commenced by a petition filed in the office of the
clerk.
RULE 23. SUITS TO BE NUMBERED CONSECUTIVELY
It shall be the duty of the clerk to designate the suits by regular consecutive numbers, called file
numbers, and he shall mark on each paper in every case the file number of the cause.
RULE 24. DUTY OF CLERK
When a petition is filed with the clerk he shall indorse thereon the file number, the day on which it
was filed and the time of filing, and sign his name officially thereto.
RULE 25. CLERK'S FILE DOCKET
Each clerk shall keep a file docket which shall show in convenient form the number of the suit, the
names of the attorneys, the names of the parties to the suit, and the nature thereof, and, in brief form,
the officer's return on the process, and all subsequent proceedings had in the case with the dates
thereof.
RULE 26. CLERK'S COURT DOCKET
Each clerk shall also keep a court docket in a permanent record that shall include the number of the
case and the names of the parties, the names of the attorneys, the nature of the action, the pleas, the
motions, and the ruling of the court as made.
RULE 27. ORDER OF CASES
The cases shall be placed on the docket as they are filed.
SECTION 3. PARTIES TO SUITS
RULE 28. SUITS IN ASSUMED NAME
Any partnership, unincorporated association, private corporation, or individual doing business under
an assumed name may sue or be sued in its partnership, assumed or common name for the purpose
of enforcing for or against it a substantive right, but on a motion by any party or on the court's own
motion the true name may be substituted.
RULE 29. SUIT ON CLAIM AGAINST DISSOLVED CORPORATION
When no receiver has been appointed for a corporation which has dissolved, suit may be instituted
on any claim against said corporation as though the same had not been dissolved, and service of
process may be obtained on the president, directors, general manager, trustee, assignee, or other
person in charge of the affairs of the corporation at the time it was dissolved, and judgment may be
rendered as though the corporation had not been dissolved.
RULE 30. PARTIES TO SUITS
Assignors, endorsers and other parties not primarily liable upon any instruments named in the
chapter of the Business and Commerce Code, dealing with commercial paper, may be jointly sued
with their principal obligors, or may be sued alone in the cases provided for by statute.
RULE 31. SURETY NOT TO BE SUED ALONE
No surety shall be sued unless his principal is joined with him, or unless a judgment has previously
been rendered against his principal, except in cases otherwise provided for in the law and these rules.
RULE 32. MAY HAVE QUESTION OF SURETYSHIP TRIED
When any suit is brought against two or more defendants upon any contract, any one or more of the
defendants being surety for the other, the surety may cause the question of suretyship to be tried and
determined upon the issue made for the parties defendant at the trial of the cause, or at any time
before or after the trial or at a subsequent term. Such proceedings shall not delay the suit of the
plaintiff.
RULE 33. SUITS BY OR AGAINST COUNTIES
Suits by or against a county or incorporated city, town or village shall be in its corporate name.
RULE 34. AGAINST SHERIFF, ETC.
Whenever a sheriff, constable, or a deputy or either has been sued for damages for any act done in
his official character, and has taken an indemnifying bond for the acts upon which the suit is based,
he may make the principal and surety on such bond parties defendant in such suit, and the cause may
be continued to obtain service on such parties.
RULE 35. ON OFFICIAL BONDS
In suits brought by the State or any county, city, independent school district, irrigation district, or
other political subdivision of the State, against any officer who has held an office for more than one
term, or against any depository which has been such depository for more than one term, or has given
more than one official bond, the sureties on each and all such bonds may be joined as defendants in
the same suit whenever it is difficult to determine when the default sued for occurred and which set
of sureties on such bonds is liable therefor.
RULE 36. DIFFERENT OFFICIALS AND BONDSMEN
In suits by the State upon the official bond of a State officer, any subordinate officer who has given
bond, payable either to the State or such superior officer, to cover all or part of the default sued for,
together with the sureties on his official bond, may be joined as defendants with such superior officer
and his bondsmen whenever it is alleged in the petition that both of such officers are liable for the
money sued for.
RULE 37. ADDITIONAL PARTIES
Before a case is called for trial, additional parties necessary or proper parties to the suit, may be
brought in, either by the plaintiff or the defendant, upon such terms as the court may prescribe; but
not at a time nor in a manner to unreasonably delay the trial of the case.
RULE 38. THIRD-PARTY PRACTICE
(a) When Defendant May Bring in Third Party. At any time after commencement of the
action a defending party, as a third-party plaintiff, may cause a citation and petition to be
served upon a person not a party to the action who is or may be liable to him or to the
plaintiff for all or part of the plaintiff's claim against him. The third-party plaintiff need not
obtain leave to make the service if he files the third-party petition not later than thirty (30)
days after he serves his original answer. Otherwise, he must obtain leave on motion upon
notice to all parties to the action. The person served, hereinafter called the third-party
defendant, shall make his defenses to the third-party plaintiff's claim under the rules
applicable to the defendant, and his counterclaims against the third-party plaintiff and crossclaims
against other third-party defendants as provided in Rule 97. The third-party defendant
may assert against the plaintiff any defenses which the third-party plaintiff has to the
plaintiff's claim. The third-party defendant may also assert any claim against the plaintiff
arising out of the transaction or occurrence that is the subject matter of the plaintiff's claim
against the third-party plaintiff. The plaintiff may assert any claim against the third-party
defendant arising out of the transaction or occurrence that is the subject matter of the
plaintiff's claim against the third-party plaintiff, and the third-party defendant thereupon shall
assert his defenses and his counterclaims and cross-claims. Any party may move to strike the
third-party claim, or for its severance or separate trial. A third-party defendant may proceed
under this rule against any person not a party to the action who is or who may be liable to
him or to the third-party plaintiff for all or part of the claim made in the action against the
third-party defendant.
(b) When Plaintiff May Bring in Third Party. When a counterclaim is asserted against a
plaintiff, he may cause a third party to be brought in under circumstances which under this
rule would entitle a defendant to do so.
(c) This rule shall not be applied, in tort cases, so as to permit the joinder of a liability or
indemnity insurance company, unless such company is by statute or contract liable to the
person injured or damaged.
(d) This rule shall not be applied so as to violate any venue statute, as venue would exist absent
this rule.
RULE 39. JOINDER OF PERSONS NEEDED FOR JUST ADJUDICATION
(a) Persons to Be Joined If Feasible. A person who is subject to service of process shall be
joined as a party in the action if
(1) in his absence complete relief cannot be accorded among those already parties, or
(2) he claims an interest relating to the subject of the action and is so situated that the
disposition of the action in his absence may
(i) as a practical matter impair or impede his ability to protect that interest or
(ii) leave any of the persons already parties subject to a substantial risk of
incurring double, multiple, or otherwise inconsistent obligations by reason of
his claimed interest. If he has not been so joined, the court shall order that he
be made a party. If he should join as a plaintiff but refuses to do so, he may
be made a defendant, or, in a proper case, an involuntary plaintiff.
(b) Determination by Court Whenever Joinder Not Feasible. If a person as described in
subdivision (a)(1)-(2) hereof cannot be made a party, the court shall determine whether in
equity and good conscience the action should proceed among the parties before it, or should
be dismissed, the absent person being thus regarded as indispensable. The factors to be
considered by the court include: first, to what extent a judgment rendered in the person's
absence might be prejudicial to him or those already parties; second, the extent to which, by
protective provisions in the judgment, by the shaping of relief, or other measures, the
prejudice can be lessened or avoided; third, whether a judgment rendered in the person's
absence will be adequate; fourth, whether the plaintiff will have an adequate remedy if the
action is dismissed for non-joinder.
(c) Pleading Reasons for Nonjoinder. A pleading asserting a claim for relief shall state the
names, if known to the pleader, of any persons as described in subdivision (a)(1)-(2) hereof
who are not joined, and the reasons why they are not joined.
(d) Exception of Class Actions. This rule is subject to the provisions of Rule 42.
RULE 40. PERMISSIVE JOINDER OF PARTIES
(a) Permissive Joinder. All persons may join in one action as plaintiffs if they assert any right
to relief jointly, severally, or in the alternative in respect of or arising out of the same
transaction, occurrence, or series of transactions or occurrences and if any question of law
or fact common to all of them will arise in the action. All persons may be joined in one
action as defendants if there is asserted against them jointly, severally, or in the alternative
any right to relief in respect of or arising out of the same transaction, occurrence, or series
of transactions or occurrences and if any question of law or fact common to all of them will
arise in the action. A plaintiff or defendant need not be interested in obtaining or defending
against all the relief demanded. Judgment may be given for one or more of the plaintiffs
according to their respective rights to relief, and against one or more defendants according
to their respective liabilities.
(b) Separate Trials. The court may make such orders as will prevent a party from being
embarrassed, delayed, or put to expense by the inclusion of a party against whom he asserts
no claim and who asserts no claim against him, and may order separate trials or make other
orders to prevent delay or prejudice.
RULE 41. MISJOINDER OR NON-JOINDER OF PARTIES
Misjoinder of parties is not ground for dismissal of an action. Parties may be dropped or added, or
suits filed separately may be consolidated, or actions which have been improperly joined may be
severed and each ground of recovery improperly joined may be docketed as a separate suit between
the same parties, by order of the court on motion of any party or on its own initiative at any stage of
the action, before the time of submission to the jury or to the court if trial is without a jury, on such
terms as are just. Any claim against a party may be severed and proceeded with separately.
RULE 42. CLASS ACTIONS
(a) Prerequisites to a Class Action. One or more members of a class may sue or be sued as
representative parties on behalf of all only if
(1) the class is so numerous that joinder of all members is impracticable,
(2) there are questions of law or fact common to the class,
(3) the claims or defenses of the representative parties are typical of the claims or
defenses of the class, and
(4) the representative parties will fairly and adequately protect the interests of the class.
(b) Class Actions Maintainable. An action may be maintained as a class action if the
prerequisites of subdivision (a) are satisfied, and in addition:
(1) the prosecution of separate actions by or against individual members of the class
would create a risk of
(A) inconsistent or varying adjudications with respect to individual members of
the class which would establish incompatible standards of conduct for the
party opposing the class, or
(B) adjudications with respect to individual members of the class which would
as a practical matter be dispositive of the interests of the other members not
parties to the adjudications or substantially impair or impede their ability to
protect their interests; or
(2) the party opposing the class has acted or refused to act on grounds generally
applicable to the class, thereby making appropriate final injunctive relief or
corresponding declaratory relief with respect to the class as a whole; or
(3) the questions of law or fact common to the members of the class predominate over
any questions affecting only individual members, and a class action is superior to
other available methods for the fair and efficient adjudication of the controversy. The
matters pertinent to these issues include:
(A) the interest of members of the class in individually controlling the
prosecution or defense of separate actions;
(B) the extent and nature of any litigation concerning the controversy already
commenced by or against members of the class;
(C) the desirability or undesirability of concentrating the litigation of the claims
in the particular forum;
(D) the difficulties likely to be encountered in the management of a class action
(c) Determination by Order Whether to Certify a Class Action; Notice and Membership
in Class.
(1) (A) When a person sues or is sued as a representative of a class, the court must --
at an early practicable time -- determine by order whether to certify the action
as a class action.
(B) An order certifying a class action must define the class and the class claims,
issues, or defenses, and must appoint class counsel under Rule 42 (g).
(C) An order under Rule 42 (c)(1) may be altered or amended before final
judgment. The court may order the naming of additional parties in order to
insure the adequacy of representation.
(D) An order granting or denying certification under Rule 42(b)(3) must state:
(i) the elements of each claim or defense asserted in the pleadings;
(ii) any issues of law or fact common to the class members;
(iii) any issues of law or fact affecting only individual class members;
(iv) the issues that will be the object of most of the efforts of the litigants
and the court;
(v) other available methods of adjudication that exist for the controversy;
(vi) why the issues common to the members of the class do or do not
predominate over individual issues;
(vii) why a class action is or is not superior to other available methods for
the fair and efficient adjudication of the controversy; and
(viii) if a class is certified, how the class claims and any issues affecting
only individual members, raised by the claims or defenses asserted in
the pleadings, will be tried in a manageable, time efficient manner.
(2) (A) For any class certified under Rule 42(b)(1) or (2), the court may direct
appropriate notice to the class. For any class certified under Rule 42(b)(3),
the court must direct to class members the best notice practicable under the
circumstances including individual notice to all members who can be
identified through reasonable effort. The notice must concisely and clearly
state in plain, easily understood language:
(i) the nature of the action;
(ii) the definition of the class certified;
(iii) the class claims, issues, or defenses;
(iv) that a class member may enter an appearance through counsel if the
member so desires;
(v) that the court will exclude from the class any member who requests
exclusion, stating when and how members may elect to be excluded;
and
(vi) the binding effect of a class judgment on class members under Rule
42 (c)(3).
(3) The judgment in an action maintained as a class action under subdivisions (b)(1) or
(b)(2), whether or not favorable to the class, shall include and describe those whom
the court finds to be members of the class. The judgment in an action maintained as
a class action under subdivision (b)(4), whether or not favorable to the class, shall
include and specify or describe those to whom the notice provided in subdivision
(c)(2) was directed, and who have not requested exclusion, and whom the court finds
to be members of the class.
(d) Actions Conducted Partially as Class Actions; Multiple Classes and Subclasses. When
appropriate
(1) an action may be brought or maintained as a class action with respect to particular
issues, or
(2) a class may be divided into subclasses and each subclass treated as a class, and the
provisions of this rule shall then be construed and applied accordingly.
(e) Settlement, Dismissal or Compromise.
(1) (A) The court must approve any settlement, dismissal, or compromise of the
claims, issues, or defenses of a certified class.
(B) Notice of the material terms of the proposed settlement, dismissal or
compromise, together with an explanation of when and how the members
may elect to be excluded from the class, shall be given to all members in such
manner as the court directs.
(C) The court may approve a settlement, dismissal, or compromise that would
bind class members only after a hearing and on finding that the settlement,
dismissal, or compromise is fair, reasonable, and adequate.
(2) The parties seeking approval of a settlement, dismissal, or compromise under Rule
42(e)(1) must file a statement identifying any agreement made in connection with the
proposed settlement, dismissal, or compromise.
(3) In an action previously certified as a class action under Rule 42(b)(3), the court may
not approve a settlement unless it affords a new opportunity to request exclusion to
individual class members who had an earlier opportunity to request exclusion but did
not do so.
(4) (A) Any class member may object to a proposed settlement, dismissal, or
compromise that requires court approval under Rule 42(e)(1)(A).
(B) An objection made under Rule 42(e)(4)(A) may be withdrawn only with the
court's approval.(f) Discovery. Unnamed members of a class action are not
to be considered as parties for purposes of discovery.
(g) Class Counsel.
(1) Appointing Class Counsel.
(A) Unless a statute provides otherwise, a court that certifies a class must appoint
class counsel.
(B) An attorney appointed to serve as class counsel must fairly and adequately
represent the interests of the class.
(C) In appointing class counsel, the court
(i) must consider:-- the work counsel has done in identifying or
investigating potential claims in the action;-- counsel's experience in
handling class actions, other complex litigation, and claims of the
type asserted in the action;-- counsel's knowledge of the applicable
law; and-- the resources counsel will commit to representing the
class;
(ii) may consider any other matter pertinent to counsel's ability to fairly
and adequately represent the interests of the class;
(iii) may direct potential class counsel to provide information on any
subject pertinent to the appointment and to propose terms for attorney
fees and nontaxable costs; and
(iv) may make further orders in connection with the appointment.
(2) Appointment Procedure.
(A) The court may designate interim counsel to act on behalf of the putative class
before determining whether to certify the action as a class action.
(B) When there is one applicant for appointment as class counsel, the court may
appoint that applicant only if the applicant is adequate under Rule 42(g)(1)(B)
and (C). If more than one adequate applicant seeks appointment as class
counsel, the court must appoint the applicant or applicants best able to
represent the interests of the class.
(C) The order appointing class counsel may include provisions about the award
of attorney fees or nontaxable costs under Rule 42(h) and (i).(h) Procedure
for determining Attorney Fees Award. In an action certified as a class action,
the court may award attorney fees in accordance with subdivision (i) and
nontaxable costs authorized by law or by agreement of the parties as follows:
(1) Motion for Award of Attorney Fees. A claim for an award of attorney
fees and nontaxable costs must be made by motion, subject to the
provisions of this subdivision, at a time set by the court. Notice of the
motion must be served on all parties and, for motions by class
counsel, directed to class members in a reasonable manner.
(2) Objections to Motion. A class member, or a party from whom
payment is sought, may object to the motion.
(3) Hearing and Findings. The court must hold a hearing in open court
and must find the facts and state its conclusions of law on the motion.
The court must state its findings and conclusions in writing or orally
on the record.
(i) Attorney's Fees Award.
(1) In awarding attorney fees, the court must first determine a lodestar figure by
multiplying the number of hours reasonably worked times a reasonable hourly rate.
The attorney fees award must be in the range of 25% to 400% of the lodestar figure.
In making these determinations, the court must consider the factors specified in Rule
1.04(b), Tex. Disciplinary R. Prof. Conduct.
(2) If any portion of the benefits recovered for the class are in the form of coupons or
other noncash common benefits, the attorney fees awarded in the action must be in
cash and noncash amounts in the same proportion as the recovery for the class.
(j) Effective Date. Rule 42(i) applies only in actions filed after September 1, 2003.
RULE 43. INTERPLEADER
Persons having claims against the plaintiff may be joined as defendants and required to interplead
when their claims are such that the plaintiff is or may be exposed to double or multiple liability. It
is not ground for objection to the joinder that the claims of the several claimants or the titles on
which their claims depend do not have a common origin or are not identical but are adverse to and
independent of one another, or that the plaintiff avers that he is not liable in whole or in part to any
or all of the claimants. A defendant exposed to similar liability may obtain such interpleader by way
of cross-claim or counterclaim. The provisions of this rule supplement and do not in any way limit
the joinder of parties permitted in any other rules.
RULE 44. MAY APPEAR BY NEXT FRIEND
Minors, lunatics, idiots, or persons non compos mentis who have no legal guardian may sue and be
represented by "next friend" under the following rules:
(1) Such next friend shall have the same rights concerning such suits as guardians have,
but shall give security for costs, or affidavits in lieu thereof, when required.
(2) Such next friend or his attorney of record may with the approval of the court
compromise suits and agree to judgments, and such judgments, agreements and
compromises, when approved by the court, shall be forever binding and conclusive
upon the party plaintiff in such suit.
SECTION 4. PLEADING
A. General
RULE 45. DEFINITION AND SYSTEM
Pleadings in the district and county courts shall
(a) be by petition and answer;
(b) consist of a statement in plain and concise language of the plaintiff's cause of action
or the defendant's grounds of defense. That an allegation be evidentiary or be of legal
conclusion shall not be grounds for objection when fair notice to the opponent is
given by the allegations as a whole;
(c) contain any other matter which may be required by any law or rule authorizing or
regulating any particular action or defense;
(d) be in writing, on paper measuring approximately 8 ½ inches by 11 inches, and signed
by the party or his attorney, and either the signed original together with any
verification or a copy of said original and copy of any such verification shall be filed
with the court. The use of recycled paper is strongly encouraged.
When a copy of the signed original is tendered for filing, the party or his attorney filing such copy
is required to maintain the signed original for inspection by the court or any party incident to the suit,
should a question be raised as to its authenticity.
All pleadings shall be construed so as to do substantial justice.
RULE 46. PETITION AND ANSWER; EACH ONE INSTRUMENT OF WRITING
The original petition, first supplemental petition, second supplemental petition, and every other, shall
each be contained in one instrument of writing, and so with the original answer and each of the
supplemental answers.
RULE 47. CLAIMS FOR RELIEF
An original pleading which sets forth a claim for relief, whether an original petition, counterclaim,
cross-claim, or third party claim, shall contain
(a) a short statement of the cause of action sufficient to give fair notice of the claim
involved,
(b) in all claims for unliquidated damages only the statement that the damages sought are
within the jurisdictional limits of the court, and
(c) a demand for judgment for all the other relief to which the party deems himself
entitled.
Relief in the alternative or of several different types may be demanded; provided, further, that upon
special exception the court shall require the pleader to amend so as to specify the maximum amount
claimed.
RULE 48. ALTERNATIVE CLAIMS FOR RELIEF
A party may set forth two or more statements of a claim or defense alternatively or hypothetically,
either in one count or defense or in separate counts or defenses. When two or more statements are
made in the alternative and one of them if made independently would be sufficient, the pleading is
not made insufficient by the insufficiency of one or more of the alternative statements. A party may
also state as many separate claims or defenses as he has regardless of consistency and whether based
upon legal or equitable grounds or both.
RULE 49. WHERE SEVERAL COUNTS
Where there are several counts in the petition, and entire damages are given, the verdict or judgment,
as the case may be, shall be good, notwithstanding one or more of such counts may be defective.
RULE 50. PARAGRAPHS, SEPARATE STATEMENTS
All averments of claim or defense shall be made in numbered paragraphs, the contents of each of
which shall be limited as far as practicable to a statement of a single set of circumstances; and a
paragraph may be referred to by number in all succeeding pleadings, so long as the pleading
containing such paragraph has not been superseded by an amendment as provided by Rule 65. Each
claim founded upon a separate transaction or occurrence and each defense other than denials shall
be stated in a separate count or defense whenever a separation facilitates the clear presentation of the
matters set forth.
RULE 51. JOINDER OF CLAIMS AND REMEDIES
(a) Joinder of Claims. The plaintiff in his petition or in a reply setting forth a counterclaim and
the defendant in an answer setting forth a counterclaim may join either as independent or as
alternate claims as many claims either legal or equitable or both as he may have against an
opposing party. There may be a like joinder of claims when there are multiple parties if the
requirements of Rules 39, 40, and 43 are satisfied. There may be a like joinder of cross
claims or third-party claims if the requirements of Rules 38 and 97, respectively, are satisfied.
(b) Joinder of Remedies. Whenever a claim is one heretofore cognizable only after another
claim has been prosecuted to a conclusion, the two claims may be joined in a single action;
but the court shall grant relief in that action only in accordance with the relative substantive
rights of the parties. This rule shall not be applied in tort cases so as to permit the joinder of
a liability or indemnity insurance company, unless such company is by statute or contract
directly liable to the person injured or damaged.
RULE 52. ALLEGING A CORPORATION
An allegation that a corporation is incorporated shall be taken as true, unless denied by the affidavit
of the adverse party, his agent or attorney, whether such corporation is a public or private corporation
and however created.
RULE 53. SPECIAL ACT OR LAW
A pleading founded wholly or in part on any private or special act or law of this State or of the
Republic of Texas need only recite the title thereof, the date of its approval, and set out in substance
so much of such act or laws as may be pertinent to the cause of action or defense.
RULE 54. CONDITIONS PRECEDENT
In pleading the performance or occurrence of conditions precedent, it shall be sufficient to aver
generally that all conditions precedent have been performed or have occurred. When such
performances or occurrences have been so plead, the party so pleading same shall be required to
prove only such of them as are specifically denied by the opposite party.
RULE 55. JUDGMENT
In pleading a judgment or decision of a domestic or foreign court, judicial or quasi-judicial tribunal,
or of a board or officer, it shall be sufficient to aver the judgment or decision without setting forth
matter showing jurisdiction to render it.
RULE 56. SPECIAL DAMAGE
When items of special damage are claimed, they shall be specifically stated.
RULE 57. SIGNING OF PLEADINGS
Every pleading of a party represented by an attorney shall be signed by at least one attorney of record
in his individual name, with his State Bar of Texas identification number, address, telephone
number, and, if available, telecopier number. A party not represented by an attorney shall sign his
pleadings, state his address, telephone number, and, if available, telecopier number.
RULE 58. ADOPTION BY REFERENCE
Statements in a pleading may be adopted by reference in a different part of the same pleading or in
another pleading or in any motion, so long as the pleading containing such statements has not been
superseded by an amendment as provided by Rule 65.
RULE 59. EXHIBITS AND PLEADING
Notes, accounts, bonds, mortgages, records, and all other written instruments, constituting, in whole
or in part, the claim sued on, or the matter set up in defense, may be made a part of the pleadings by
copies thereof, or the originals, being attached or filed and referred to as such, or by copying the
same in the body of the pleading in aid and explanation of the allegations in the petition or answer
made in reference to said instruments and shall be deemed a part thereof for all purposes. Such
pleadings shall not be deemed defective because of the lack of any allegations which can be supplied
from said exhibit. No other instrument of writing shall be made an exhibit in the pleading.
RULE 60. INTERVENOR'S PLEADINGS
Any party may intervene by filing a pleading, subject to being stricken out by the court for sufficient
cause on the motion of any party.
RULE 61. TRIAL: INTERVENORS: RULES APPLY TO ALL PARTIES
These rules of pleading shall apply equally, so far as it may be practicable to intervenors and to
parties, when more than one, who may plead separately.
RULE 62. AMENDMENT DEFINED
The object of an amendment, as contra-distinguished from a supplemental petition or answer, is to
add something to, or withdraw something from, that which has been previously pleaded so as to
perfect that which is or may be deficient, or to correct that which has been incorrectly stated by the
party making the amendment, or to plead new matter, additional to that formerly pleaded by the
amending party, which constitutes an additional claim or defense permissible to the suit.
RULE 63. AMENDMENTS AND RESPONSIVE PLEADINGS
Parties may amend their pleadings, respond to pleadings on file of other parties, file suggestions of
death and make representative parties, and file such other pleas as they may desire by filing such
pleas with the clerk at such time as not to operate as a surprise to the opposite party; provided, that
any pleadings, responses or pleas offered for filing within seven days of the date of trial or thereafter,
or after such time as may be ordered by the judge under Rule 166, shall be filed only after leave of
the judge is obtained, which leave shall be granted by the judge unless there is a showing that such
filing will operate as a surprise to the opposite party.
RULE 64. AMENDED INSTRUMENT
The party amending shall point out the instrument amended, as "original petition," or "plaintiff's first
supplemental petition," or as "original answer," or "defendant's first supplemental answer" or other
instrument file by the party and shall amend by filing a substitute therefor, entire and complete in
itself, indorsed "amended original petition," or "amended first supplemental petition," or "amended
original answer," or "amended first supplemental answer," accordingly as said instruments of
pleading are designated.
RULE 65. SUBSTITUTED INSTRUMENT TAKES PLACE OF ORIGINAL
Unless the substituted instrument shall be set aside on exceptions, the instrument for which it is
substituted shall no longer be regarded as a part of the pleading in the record of the cause, unless
some error of the court in deciding upon the necessity of the amendment, or otherwise in superseding
it, be complained of, and exception be taken to the action of the court, or unless it be necessary to
look to the superseded pleading upon a question of limitation.
RULE 66. TRIAL AMENDMENT
If evidence is objected to at the trial on the ground that it is not within the issues made by the
pleading, or if during the trial any defect, fault or omission in a pleading, either of form or substance,
is called to the attention of the court, the court may allow the pleadings to be amended and shall do
so freely when the presentation of the merits of the action will be subserved thereby and the
objecting party fails to satisfy the court that the allowance of such amendment would prejudice him
in maintaining his action or defense upon the merits. The court may grant a postponement to enable
the objecting party to meet such evidence.
RULE 67. AMENDMENTS TO CONFORM TO ISSUES
TRIED WITHOUT OBJECTION
When issues not raised by the pleadings are tried by express or implied consent of the parties, they
shall be treated in all respects as if they had been raised in the pleadings. In such case such
amendment of the pleadings as may be necessary to cause them to conform to the evidence and to
raise these issues may be made by leave of court upon motion of any party at any time up to the
submission of the case to the Court or jury, but failure so to amend shall not affect the result of the
trial of these issues; provided that written pleadings, before the time of submission, shall be
necessary to the submission of questions, as is provided in Rules 277 and 279.
RULE 68. COURT MAY ORDER REPLEADER
The court, when deemed necessary in any case, may order a repleader on the part of one or both of
the parties, in order to make their pleadings substantially conform to the rules.
RULE 69. SUPPLEMENTAL PETITION OR ANSWER
Each supplemental petition or answer, made by either party, shall be a response to the last preceding
pleading by the other party, and shall not repeat allegations formerly pleaded further than is
necessary as an introduction to that which is stated in the pleading then being drawn up. These
instruments, to wit, the original petition and its several supplements, and the original answer and its
several supplements, shall respectively, constitute separate and distinct parts of the pleadings of each
party; and the position and identity, by number and name, with the indorsement of each instrument,
shall be preserved throughout the pleadings of either party.
RULE 70. PLEADING: SURPRISE: COST
When either a supplemental or amended pleading is of such character and is presented at such time
as to take the opposite party by surprise, the court may charge the continuance of the cause, if
granted, to the party causing the surprise if the other party satisfactorily shows that he is not ready
for trial because of the allowance of the filing of such supplemental or amended pleading, and the
court may, in such event, in its discretion require the party filing such pleading to pay to the surprised
party the amount of reasonable costs and expenses incurred by the other party as a result of the
continuance, including attorney fees, or make such other order with respect thereto as may be just.
RULE 71. MISNOMER OF PLEADING
When a party has mistakenly designated any plea or pleading, the court, if justice so requires, shall
treat the plea or pleading as if it had been properly designated. Pleadings shall be docketed as
originally designated and shall remain identified as designated, unless the court orders redesignation.
Upon court order filed with the clerk, the clerk shall modify the docket and all other clerk records
to reflect redesignation.
RULE 74. FILING WITH THE COURT DEFINED
The filing of pleadings, other papers and exhibits as required by these rules shall be made by filing
them with the clerk of the court, except that the judge may permit the papers to be filed with him,
in which event he shall note thereon the filing date and time and forthwith transmit them to the office
of the clerk.
RULE 75. FILED PLEADINGS; WITHDRAWAL
All filed pleadings shall remain at all times in the clerk's office or in the court or in custody of the
clerk, except that the court may by order entered on the minutes allow a filed pleading to be
withdrawn for a limited time whenever necessary, on leaving a certified copy on file. The party
withdrawing such pleading shall pay the costs of such order and certified copy.
RULE 75a. FILING EXHIBITS: COURT REPORTER TO FILE WITH CLERK
The court reporter or stenographer shall file with the clerk of the court all exhibits which were
admitted in evidence or tendered on bill of exception during the course of any hearing, proceeding,
or trial.
RULE 75b. FILED EXHIBITS: WITHDRAWAL
All filed exhibits admitted in evidence or tendered on bill of exception shall, until returned or
otherwise disposed of as authorized by Rule 14b, remain at all times in the clerk's office or in the
court or in the custody of the clerk except as follows:
(a) The court may by order entered on the minutes allow a filed exhibit to be withdrawn
by any party only upon such party's leaving on file a certified, photo, or other
reproduced copy of such exhibit. The party withdrawing such exhibit shall pay the
costs of such order and copy.
(b) The court reporter or stenographer of the court conducting the hearing, proceedings,
or trial in which exhibits are admitted or offered in evidence, shall have the right to
withdraw filed exhibits, upon giving the clerk proper receipt therefor, whenever
necessary for the court reporter or stenographer to transmit such original exhibits to
an appellate court under the provisions of Rule 379 or to otherwise discharge the
duties imposed by law upon said court reporter or stenographer.
RULE 76. MAY INSPECT PAPERS
Each attorney at law practicing in any court shall be allowed at all reasonable times to inspect the
papers and records relating to any suit or other matter in which he may be interested.
RULE 76a. SEALING COURT RECORDS
1. Standard for Sealing Court Records. Court records may not be removed from court files
except as permitted by statute or rule. No court order or opinion issued in the adjudication
of a case may be sealed. Other court records, as defined in this rule, are presumed to be open
to the general public and may be sealed only upon a showing of all of the following:
(a) a specific, serious and substantial interest which clearly outweighs:
(1) this presumption of openness;
(2) any probable adverse effect that sealing will have upon the general
public health or safety;
(b) no less restrictive means than sealing records will adequately and effectively protect
the specific interest asserted.
2. Court Records. For purposes of this rule, court records means:
(a) all documents of any nature filed in connection with any matter before any civil
court, except:
(1) documents filed with a court in camera, solely for the purpose of obtaining
a ruling on the discoverability of such documents;
(2) documents in court files to which access is otherwise restricted by law;
(3) documents filed in an action originally arising under the Family Code.
(b) settlement agreements not filed of record, excluding all reference to any monetary
consideration, that seek to restrict disclosure of information concerning matters that
have a probable adverse effect upon the general public health or safety, or the
administration of public office, or the operation of government.
(c) discovery, not filed of record, concerning matters that have a probable adverse effect
upon the general public health or safety, or the administration of public office, or the
operation of government, except discovery in cases originally initiated to preserve
bona fide trade secrets or other intangible property rights.
3. Notice. Court records may be sealed only upon a party's written motion, which shall be open
to public inspection. The movant shall post a public notice at the place where notices for
meetings of county governmental bodies are required to be posted, stating: that a hearing will
be held in open court on a motion to seal court records in the specific case; that any person
may intervene and be heard concerning the sealing of court records; the specific time and
place of the hearing; the style and number of the case; a brief but specific description of both
the nature of the case and the records which are sought to be sealed; and the identity of the
movant. Immediately after posting such notice, the movant shall file a verified copy of the
posted notice with the clerk of the court in which the case is pending and with the Clerk of
the Supreme Court of Texas.
4. Hearing. A hearing, open to the public, on a motion to seal court records shall be held in
open court as soon as practicable, but not less than fourteen days after the motion is filed and
notice is posted. Any party may participate in the hearing. Non-parties may intervene as a
matter of right for the limited purpose of participating in the proceedings, upon payment of
the fee required for filing a plea in intervention. The court may inspect records in camera
when necessary. The court may determine a motion relating to sealing or unsealing court
records in accordance with the procedures prescribed by Rule 120a.
5. Temporary Sealing Order. A temporary sealing order may issue upon motion and notice
to any parties who have answered in the case pursuant to Rules 21 and 21a upon a showing
of compelling need from specific facts shown by affidavit or by verified petition that
immediate and irreparable injury will result to a specific interest of the applicant before
notice can be posted and a hearing held as otherwise provided herein. The temporary order
shall set the time for the hearing required by paragraph 4 and shall direct that the movant
immediately give the public notice required by paragraph 3. The court may modify or
withdraw any temporary order upon motion by any party or intervenor, notice to the parties,
and hearing conducted as soon as practicable. Issuance of a temporary order shall not reduce
in any way the burden of proof of a party requesting sealing at the hearing required by
paragraph 4.
6. Order on Motion to Seal Court Records. A motion relating to sealing or unsealing court
records shall be decided by written order, open to the public, which shall state: the style and
number of the case; the specific reasons for finding and concluding whether the showing
required by paragraph 1 has been made; the specific portions of court records which are to
be sealed; and the time period for which the sealed portions of the court records are to be
sealed. The order shall not be included in any judgment or other order but shall be a separate
document in the case; however, the failure to comply with this requirement shall not affect
its appealability.
7. Continuing Jurisdiction. Any person may intervene as a matter of right at any time before
or after judgment to seal or unseal court records. A court that issues a sealing order retains
continuing jurisdiction to enforce, alter, or vacate that order. An order sealing or unsealing
court records shall not be reconsidered on motion of any party or intervenor who had actual
notice of the hearing preceding issuance of the order, without first showing changed
circumstances materially affecting the order. Such circumstances need not be related to the
case in which the order was issued. However, the burden of making the showing required by
paragraph 1 shall always be on the party seeking to seal records.
8. Appeal. Any order (or portion of an order or judgment) relating to sealing or unsealing court
records shall be deemed to be severed from the case and a final judgment which may be
appealed by any party or intervenor who participated in the hearing preceding issuance of
such order. The appellate court may abate the appeal and order the trial court to direct that
further public notice be given, or to hold further hearings, or to make additional findings.
9. Application. Access to documents in court files not defined as court records by this rule
remains governed by existing law. This rule does not apply to any court records sealed in an
action in which a final judgment has been entered before its effective date. This rule applies
to cases already pending on its effective date only with regard to:
(a) all court records filed or exchanged after the effective date;
b) any motion to alter or vacate an order restricting access to court records, issued
before the effective date.
RULE 77. LOST RECORDS AND PAPERS
When any papers or records are lost or destroyed during the pendency of a suit, the parties may, with
the approval of the judge, agree in writing on a brief statement of the matters contained therein; or
either party may supply such lost records or papers as follows:
a. After three days' notice to the adverse party or his attorney, make written sworn
motion before the court stating the loss or destruction of such record or papers,
accompanied by certified copies of the originals if obtainable, or by substantial
copies thereof.
b. If, upon hearing, the court be satisfied that they are substantial copies of the original,
an order shall be made substituting such copies or brief statement for the originals.
c. Such substituted copies or brief statement shall be filed with the clerk, constitute a
part of the cause, and have the force and effect of the originals.
SECTION 4. PLEADING
B. Pleadings of Plaintiff
RULE 78. PETITION: ORIGINAL AND SUPPLEMENTAL; INDORSEMENT
The pleading of plaintiff shall consist of an original petition, and such supplemental petitions as may
be necessary in the course of pleading by the parties to the suit. The original petition and the
supplemental petitions shall be indorsed, so as to show their respective positions in the process of
pleading, as "original petition," "plaintiff's first supplemental petition," "plaintiff's second
supplemental petition," and so on, to be successively numbered, named, and indorsed.
RULE 79. THE PETITION
The petition shall state the names of the parties and their residences, if known, together with the
contents prescribed in Rule 47 above.
RULE 80. PLAINTIFF'S SUPPLEMENTAL PETITION
The plaintiff's supplemental petitions may contain special exceptions, general denials, and the
allegations of new matter not before alleged by him, in reply to those which have been alleged by
the defendant.
RULE 81. DEFENSIVE MATTERS
When the defendant sets up a counter claim, the plaintiff may plead thereto under rules prescribed
for pleadings of defensive matter by the defendant, so far as applicable. Whenever the defendant is
required to plead any matter of defense under oath, the plaintiff shall be required to plead such
matters under oath when relied on by him.
RULE 82. SPECIAL DEFENSES
The plaintiff need not deny any special matter of defense pleaded by the defendant, but the same
shall be regarded as denied unless expressly admitted.
SECTION 4. PLEADING
C. Pleadings of Defendant
RULE 83. ANSWER; ORIGINAL AND SUPPLEMENTAL; INDORSEMENT
The answer of defendant shall consist of an original answer, and such supplemental answers as may
be necessary, in the course of pleading by the parties to the suit. The original answer and the
supplemental answers shall be indorsed, so as to show their respective positions in the process of
pleading, as "original answer," "defendant's first supplemental answer," "defendant's second
supplemental answer," and so on, to be successively numbered, named and indorsed.
RULE 84. ANSWER MAY INCLUDE SEVERAL MATTERS
The defendant in his answer may plead as many several matters, whether of law or fact, as he may
think necessary for his defense, and which may be pertinent to the cause, and such matters shall be
heard in such order as may be directed by the court, special appearance and motion to transfer venue,
and the practice thereunder being excepted herefrom.
RULE 85. ORIGINAL ANSWER; CONTENTS
The original answer may consist of motions to transfer venue, pleas to the jurisdiction, in abatement,
or any other dilatory pleas; of special exceptions, of general denial, and any defense by way of
avoidance or estoppel, and it may present a cross-action, which to that extent will place defendant
in the attitude of a plaintiff. Matters in avoidance and estoppel may be stated together, or in several
special pleas, each presenting a distinct defense, and numbered so as to admit of separate issues to
be formed on them.
RULE 86. MOTION TO TRANSFER VENUE
1. Time to File. An objection to improper venue is waived if not made by written motion filed
prior to or concurrently with any other plea, pleading or motion except a special appearance
motion provided for in Rule 120a. A written consent of the parties to transfer the case to
another county may be filed with the clerk of the court at any time. A motion to transfer
venue because an impartial trial cannot be had in the county where the action is pending is
governed by the provisions of Rule 257.
2. How to File. The motion objecting to improper venue may be contained in a separate
instrument filed concurrently with or prior to the filing of the movant's first responsive
pleading or the motion may be combined with other objections and defenses and included
in the movant's first responsive pleading.
3. Requisites of Motion. The motion, and any amendments to it, shall state that the action
should be transferred to another specified county of proper venue because:
(a) The county where the action is pending is not a proper county; or
(b) Mandatory venue of the action in another county is prescribed by one or more
specific statutory provisions which shall be clearly designated or indicated.
The motion shall state the legal and factual basis for the transfer of the action and request
transfer of the action and request transfer of the action to a specific county of mandatory or
proper venue. Verification of the motion is not required. The motion may be accompanied
by supporting affidavits as provided in Rule 87.
4. Response and Reply. Except as provided in paragraph 3(a) of Rule 87, a response to the
motion to transfer is not required. Verification of a response is not required.
5. Service. A copy of any instrument filed pursuant to Rule 86 shall be served in accordance
with Rule 21a.
RULE 87. DETERMINATION OF MOTION TO TRANSFER
1. Consideration of Motion. The determination of a motion to transfer venue shall be made
promptly by the court and such determination must be made in a reasonable time prior to
commencement of the trial on the merits. The movant has the duty to request a setting on the
motion to transfer. Except on leave of court each party is entitled to at least 45 days notice
of a hearing on the motion to transfer.
Except on leave of court, any response or opposing affidavits shall be filed at least 30 days
prior to the hearing of the motion to transfer. The movant is not required to file a reply to the
response but any reply and any additional affidavits supporting the motion to transfer must,
except on leave of court, be filed not later than 7 days prior to the hearing date.
2. Burden of Establishing Venue.
(a) In General. A party who seeks to maintain venue of the action in a particular county
in reliance upon Section 15.001 (General Rule), Sections 15.011-15.017 (Mandatory
Venue), Sections 15.031-15.040 (Permissive Venue), or Sections 15.061 and 15.062
(Multiple Claims), Civil Practice and Remedies Code, has the burden to make proof,
as provided in paragraph 3 of this rule, that venue is maintainable in the county of
suit. A party who seeks to transfer venue of the action to another specified county
under Section 15.001 (General Rule), Sections 15.011-15.017 (Mandatory Venue),
Sections 15.031-15.040 (Permissive Venue), or Sections 15.061 and 15.062
(Multiple Claims), Civil Practice and Remedies Code, has the burden to make proof,
as provided in paragraph 3 of this rule, that venue is maintainable in the county to
which transfer is sought. A party who seeks to transfer venue of the action to another
specified county under Sections 15.011-15.017, Civil Practice and Remedies Code
on the basis that a mandatory venue provision is applicable and controlling has the
burden to make proof, as provided in paragraph 3 of this rule, that venue is
maintainable in the county to which transfer is sought by virtue of one or more
mandatory venue exceptions.
(b) Cause of Action. It shall not be necessary for a claimant to prove the merits of a
cause of action, but the existence of a cause of action, when pleaded properly, shall
be taken as established as alleged by the pleadings. When the defendant specifically
denies the venue allegations, the claimant is required, by prima facie proof as
provided in paragraph 3 of this rule, to support such pleading that the cause of action
taken as established by the pleadings, or a part of such cause of action, accrued in the
county of suit. If a defendant seeks transfer to a county where the cause of action or
a part thereof accrued, it shall be sufficient for the defendant to plead that if a cause
of action exists, then the cause of action or part thereof accrued in the specific county
to which transfer is sought, and such allegation shall not constitute an admission that
a cause of action in fact exists. But the defendant shall be required to support his
pleading by prima facie proof as provided in paragraph 3 of this rule, that, if a cause
of action exists, it or a part thereof accrued in the county to which transfer is sought.
(c) Other Rules. A motion to transfer venue based on the written consent of the parties
shall be determined in accordance with Rule 255. A motion to transfer venue on the
basis that an impartial trial cannot be had in the courts where the action is pending
shall be determined in accordance with Rules 258 and 259.
3. Proof.
(a) Affidavits and Attachments. All venue facts, when properly pleaded, shall be taken
as true unless specifically denied by the adverse party. When a venue fact is
specifically denied, the party pleading the venue fact must make prima facie proof
of that venue fact; provided, however, that no party shall ever be required for venue
purposes to support prima facie proof the existence of a cause of action or part
thereof, and at the hearing the pleadings of the parties shall be taken as conclusive
on the issues of existence of a cause of action. Prima facie proof is made when the
venue facts are properly pleaded and an affidavit, and any duly proved attachments
to the affidavit, are filed fully and specifically setting forth the facts supporting such
pleading. Affidavits shall be made on personal knowledge, shall set forth specific
facts as would be admissible in evidence, and shall show affirmatively that the affiant
is competent to testify.
(b) The Hearing. The court shall determine the motion to transfer venue on the basis
of the pleadings, any stipulations made by and between the parties and such affidavits
and attachments as may be filed by the parties in accordance with the preceding
subdivision of this paragraph 3 or of Rule 88.
(c) If a claimant has adequately pleaded and made prima facie proof that venue is proper
in the county of suit as provided in subdivision (a) of paragraph 3, then the cause
shall not be transferred but shall be retained in the county of suit, unless the motion
to transfer is based on the grounds that an impartial trial cannot be had in the county
where the action is pending as provided in Rules 257-259 or on an established ground
of mandatory venue. A ground of mandatory venue is established when the party
relying upon a mandatory exception to the general rule makes prima facie proof as
provided in subdivision (a) of paragraph 3 of this rule.
(d) In the event that the parties shall fail to make prima facie proof that the county of suit
or the specific county to which transfer is sought is a county of proper venue, then
the court may direct the parties to make further proof.
4. No Jury. All venue challenges shall be determined by the court without the aid of a jury.
5. Motion for Rehearing. If venue has been sustained as against a motion to transfer, or if an
action has been transferred to a proper county in response to a motion to transfer, then no
further motions to transfer shall be considered regardless of whether the movant was a party
to the prior proceedings or was added as a party subsequent to the venue proceedings, unless
the motion to transfer is based on the grounds that an impartial trial cannot be had under
Rules 257-259 or on the ground of mandatory venue, provided that such claim was not
available to the other movant or movants.
Parties who are added subsequently to an action and are precluded by this Rule from having
a motion to transfer considered may raise the propriety of venue on appeal, provided that the
party has timely filed a motion to transfer.
6. There shall be no interlocutory appeals from such determination.
RULE 88. DISCOVERY AND VENUE
Discovery shall not be abated or otherwise affected by pendency of a motion to transfer venue.
Issuing process for witnesses and taking depositions shall not constitute a waiver of a motion to
transfer venue, but depositions taken in such case may be read in evidence in any subsequent suit
between the same parties concerning the same subject matter in like manner as if taken in such
subsequent suit. Deposition transcripts, responses to requests for admission, answers to
interrogatories and other discovery products containing information relevant to a determination of
proper venue may be considered by the court in making the venue determination when they are
attached to, or incorporated by reference in, an affidavit of a party, a witness or an attorney who has
knowledge of such discovery.
RULE 89. TRANSFERRED IF MOTION IS SUSTAINED
If a motion to transfer venue is sustained, the cause shall not be dismissed, but the court shall transfer
said cause to the proper court; and the costs incurred prior to the time such suit is filed in the court
to which said cause is transferred shall be taxed against the plaintiff. The clerk shall make up a
transcript of all the orders made in said cause, certifying thereto officially under the seal of the court,
and send it with the original papers in the cause to the clerk of the court to which the venue has been
changed. Provided, however, if the cause be severable as to parties defendant and shall be ordered
transferred as to one or more defendants but not as to all, the clerk, instead of sending the original
papers, shall make certified copies of such filed papers as directed by the court and forward the same
to the clerk of the court to which the venue has been changed. After the cause has been transferred,
as above provided for the clerk of the court to which the cause has been transferred shall mail
notification to the plaintiff or his attorney that transfer of the cause has been completed, that the
filing fee in the proper court is due and payable within thirty days from the mailing of such
notification, and that the case may be dismissed if the filing fee is not timely paid; and if such filing
fee is timely paid, the cause will be subject to trial at the expiration of thirty days after the mailing
of notification to the parties or their attorneys by the clerk that the papers have been filed in the court
to which the cause has been transferred; and if the filing fee is not timely paid, any court of the
transferee county to which the case might have been assigned, upon its own motion or the motion
of a party, may dismiss the cause without prejudice to the refiling of same.
RULE 90. WAIVER OF DEFECTS IN PLEADING
General demurrers shall not be used. Every defect, omission or fault in a pleading either of form or
of substance, which is not specifically pointed out by exception in writing and brought to the
attention of the judge in the trial court before the instruction or charge to the jury or, in a non-jury
case, before the judgment is signed, shall be deemed to have been waived by the party seeking
reversal on such account; provided that this rule shall not apply as to any party against whom default
judgment is rendered.
RULE 91. SPECIAL EXCEPTIONS
A special exception shall not only point out the particular pleading excepted to, but it shall also point
out intelligibly and with particularity the defect, omission, obscurity, duplicity, generality, or other
insufficiency in the allegations in the pleading excepted to.
RULE 92. GENERAL DENIAL
A general denial of matters pleaded by the adverse party which are not required to be denied under
oath, shall be sufficient to put the same in issue. When the defendant has pleaded a general denial,
and the plaintiff shall afterward amend his pleading, such original denial shall be presumed to extend
to all matters subsequently set up by the plaintiff.
When a counterclaim or cross-claim is served upon a party who has made an appearance in the
action, the party so served, in the absence of a responsive pleading, shall be deemed to have pleaded
a general denial of the counterclaim or cross-claim, but the party shall not be deemed to have waived
any special appearance or motion to transfer venue. In all other respects the rules prescribed for
pleadings of defensive matter are applicable to answers to counterclaims and cross-claims.
RULE 93. CERTAIN PLEAS TO BE VERIFIED
A pleading setting up any of the following matters, unless the truth of such matters appear of record,
shall be verified by affidavit.
1. That the plaintiff has not legal capacity to sue or that the defendant has not legal
capacity to be sued.
2. That the plaintiff is not entitled to recover in the capacity in which he sues, or that the
defendant is not liable in the capacity in which he is sued.
3. That there is another suit pending in this State between the same parties involving the
same claim.
4. That there is a defect of parties, plaintiff or defendant.
5. A denial of partnership as alleged in any pleading as to any party to the suit.
6. That any party alleged in any pleading to be a corporation is not incorporated as
alleged.
7. Denial of the execution by himself or by his authority of any instrument in writing,
upon which any pleading is founded, in whole or in part and charged to have been
executed by him or by his authority, and not alleged to be lost or destroyed. Where
such instrument in writing is charged to have been executed by a person then
deceased, the affidavit shall be sufficient if it states that the affiant has reason to
believe and does believe that such instrument was not executed by the decedent or
by his authority. In the absence of such a sworn plea, the instrument shall be received
in evidence as fully proved.
8. A denial of the genuineness of the indorsement or assignment of a written instrument
upon which suit is brought by an indorsee or assignee and in the absence of such a
sworn plea, the indorsement or assignment thereof shall be held as fully proved. The
denial required by this subdivision of the rule may be made upon information and
belief.
9. That a written instrument upon which a pleading is founded is without consideration,
or that the consideration of the same has failed in whole or in part.
10. A denial of an account which is the foundation of the plaintiff's action, and supported
by affidavit.
11. That a contract sued upon is usurious. Unless such plea is filed, no evidence of
usurious interest as a defense shall be received.
12. That notice and proof of loss or claim for damage has not been given as alleged.
Unless such plea is filed such notice and proof shall be presumed and no evidence
to the contrary shall be admitted. A denial of such notice or such proof shall be made
specifically and with particularity.
13. In the trial of any case appealed to the court from the Industrial Accident Board the
following, if pleaded, shall be presumed to be true as pleaded and have been done
and filed in legal time and manner, unless denied by verified pleadings:
(a) Notice of injury.
(b) Claim for Compensation.
(c) Award of the Board.
(d) Notice of intention not to abide by the award of the Board.
(e) Filing of suit to set aside the award.
(f) That the insurance company alleged to have been the carrier of the workers'
compensation insurance at the time of the alleged injury was in fact the
carrier thereof.
(g) That there was good cause for not filing claim with the Industrial Accident
Board within the one year period provided by statute.
(h) Wage rate.
A denial of any of the matters set forth in subdivisions (a) or (g) of paragraph 13 may
be made on information and belief.
Any such denial may be made in original or amended pleadings; but if in amended
pleadings the same must be filed not less than seven days before the case proceeds
to trial. In case of such denial the things so denied shall not be presumed to be true,
and if essential to the case of the party alleging them, must be proved.
14. That a party plaintiff or defendant is not doing business under an assumed name or
trade name as alleged.
15. In the trial of any case brought against an automobile insurance company by an
insured under the provisions of an insurance policy in force providing protection
against uninsured motorists, an allegation that the insured has complied with all the
terms of the policy as a condition precedent to bringing the suit shall be presumed to
be true unless denied by verified pleadings which may be upon information and
belief.
16. Any other matter required by statute to be pleaded under oath.
RULE 94. AFFIRMATIVE DEFENSES
In pleading to a preceding pleading, a party shall set forth affirmatively accord and satisfaction,
arbitration and award, assumption of risk, contributory negligence, discharge in bankruptcy, duress,
estoppel, failure of consideration, fraud, illegality, injury by fellow servant, laches, license, payment,
release, res judicata, statute of frauds, statute of limitations, waiver, and any other matter constituting
an avoidance or affirmative defense. Where the suit is on an insurance contract which insures against
certain general hazards, but contains other provisions limiting such general liability, the party suing
on such contract shall never be required to allege that the loss was not due to a risk or cause coming
within any of the exceptions specified in the contract, nor shall the insurer be allowed to raise such
issue unless it shall specifically allege that the loss was due to a risk or cause coming within a
particular exception to the general liability; provided that nothing herein shall be construed to change
the burden of proof on such issue as it now exists.
RULE 95. PLEAS OF PAYMENT
When a defendant shall desire to prove payment, he shall file with his plea an account stating
distinctly the nature of such payment, and the several items thereof; failing to do so, he shall not be
allowed to prove the same, unless it be so plainly and particularly described in the plea as to give the
plaintiff full notice of the character thereof.
RULE 96. NO DISCONTINUANCE
Where the defendant has filed a counterclaim seeking affirmative relief, the plaintiff shall not be
permitted by a discontinuance of his suit, to prejudice the right of the defendant to be heard on such
counterclaim.
RULE 97. COUNTERCLAIM AND CROSS-CLAIM
(a) Compulsory Counterclaims. A pleading shall state as a counterclaim any claim within the
jurisdiction of the court, not the subject of a pending action, which at the time of filing the
pleading the pleader has against any opposing party, if it arises out of the transaction or
occurrence that is the subject matter of the opposing party's claim and does not require for
its adjudication the presence of third parties of whom the court cannot acquire jurisdiction;
provided, however, that a judgment based upon a settlement or compromise of a claim of one
party to the transaction or occurrence prior to a disposition on the merits shall not operate as
a bar to the continuation or assertion of the claims of any other party to the transaction or
occurrence unless the latter has consented in writing that said judgment shall operate as a bar.
(b) Permissive Counterclaims. A pleading may state as a counterclaim 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.
(c) Counterclaim Exceeding Opposing Claim. A counterclaim may or may not diminish or
defeat the recovery sought by the opposing party. It may claim relief exceeding in amount
or different in kind from that sought in the pleading of the opposing party, so long as the
subject matter is within the jurisdiction of the court.
(d) Counterclaim Maturing or Acquired After Pleading. A claim which either matured or
was acquired by the pleader after filing his pleading may be presented as a counterclaim by
amended pleading.
(e) Cross-Claim Against Co-Party. 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. Such cross-claim may include a
claim that the party against whom it is asserted is or may be liable to the cross-claimant for
all or part of a claim asserted in the action against the cross-claimant.
(f) Additional Parties. Persons other than those made parties to the original action may be
made parties to a third party action, counterclaim or cross-claim in accordance with the
provisions of Rules 38, 39 and 40.
(g) Tort shall not be the subject of set-off or counterclaim against a contractual demand nor a
contractual demand against tort unless it arises out of or is incident to or is connected with
same.
(h) Separate Trials; Separate Judgments. If the court orders separate trials as provided in
Rule 174, judgment on a counterclaim or cross-claim may be rendered when the court has
jurisdiction so to do, even if the claims of the opposing party have been dismissed or
otherwise disposed of.
RULE 98. SUPPLEMENTAL ANSWERS
The defendant's supplemental answers may contain special exceptions, general denial, and the
allegations of new matter not before alleged by him, in reply to that which has been alleged by the
plaintiff.