Authorized Process Server

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Richard Dryden
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El Paso TX 79912

915-497-4731

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SECTION 5. CITATION
RULE 99. ISSUANCE AND FORM OF CITATION
a. Issuance. Upon the filing of the petition, the clerk, when requested, shall forthwith issue a
citation and deliver the citation as directed by the requesting party. The party requesting
citation shall be responsible for obtaining service of the citation and a copy of the petition.
Upon request, separate or additional citations shall be issued by the clerk.
b. Form. The citation shall (1) be styled "The State of Texas," (2) be signed by the clerk under
seal of court, (3) contain name and location of the court, (4) show date of filing of the
petition, (5) show date of issuance of citation, (6) show file number, (7) show names of
parties, (8) be directed to the defendant, (9) show the name and address of attorney for
plaintiff, otherwise the address of plaintiff, (10) contain the time within which these rules
require the defendant to file a written answer with the clerk who issued citation, (11) contain
address of the clerk, and (12) shall notify the defendant that in case of failure of defendant
to file and answer, judgment by default may be rendered for the relief demanded in the
petition. The citation shall direct the defendant to file a written answer to the plaintiff's
petition on or before 10:00 a.m. on the Monday next after the expiration of twenty days after
the date of service thereof. The requirement of subsections 10 and 12 of this section shall be
in the form set forth in section c of this rule.
c. Notice. The citation shall include the following notice to the defendant: "You have been
sued. You may employ an attorney. If you or your attorney do not file a written answer with
the clerk who issued this citation by 10:00 a.m. on the Monday next following the expiration
of twenty days after you were served this citation and petition, a default judgment may be
taken against you."
d. Copies. The party filing any pleading upon which citation is to be issued and served shall
furnish the clerk with a sufficient number of copies thereof for use in serving the parties to
be served, and when copies are so furnished the clerk shall make no charge for the copies.
RULE 103. WHO MAY SERVE
Process - including citation and other notices, writs, orders, and other papers issued by the court -
may be served anywhere by (1) any sheriff or constable or other person authorized by law, (2) any
person authorized by law or by written order of the court who is not less than eighteen years of age,
or (3) any person certified under order of the Supreme Court. Service by registered or certified mail
and citation by publication must, if requested, be made by the clerk of the court in which the case
is pending. But no person who is a party to or interested in the outcome of a suit may serve any
process in that suit, and, unless otherwise authorized by a written court order, only a sheriff or
constable may serve a citation in an action of forcible entry and detainer, a writ that requires the
actual taking of possession of a person, property, or thing, or process requiring that an enforcement
action be physically enforced by the person delivering the process. The order authorizing a person
to serve process may be made without written motion and no fee may be imposed for issuance of
such order.
RULE 105. DUTY OF OFFICER OR PERSON RECEIVING
The officer or authorized person to whom process is delivered shall endorse thereon the day and hour
on which he received it, and shall execute and return the same without delay.
RULE 106. METHOD OF SERVICE
(a) Unless the citation or an order of the court otherwise directs, the citation shall be served by
any person authorized by Rule 103 by
(1) delivering to the defendant, in person, a true copy of the citation with the date of
delivery endorsed thereon with a copy of the petition attached thereto, or
(2) mailing to the defendant by registered or certified mail, return receipt requested, a
true copy of the citation with a copy of the petition attached thereto.
(b) Upon motion supported by affidavit stating the location of the defendant's usual place of
business or usual place of abode or other place where the defendant can probably be found
and stating specifically the facts showing that service has been attempted under either (a)(1)
or (a)(2) at the location named in such affidavit but has not been successful, the court may
authorize service
(1) by leaving a true copy of the citation, with a copy of the petition attached, with
anyone over sixteen years of age at the location specified in such affidavit, or
(2) in any other manner that the affidavit or other evidence before the court shows will
be reasonably effective to give the defendant notice of the suit.
RULE 107. RETURN OF SERVICE
The return of the officer or authorized person executing the citation shall be endorsed on or attached
to the same; it shall state when the citation was served and the manner of service and be signed by
the officer officially or by the authorized person. The return of citation by an authorized person shall
be verified. When the citation was served by registered or certified mail as authorized by Rule 106,
the return by the officer or authorized person must also contain the return receipt with the addressee's
signature. When the officer or authorized person has not served the citation, the return shall show
the diligence used by the officer or authorized person to execute the same and the cause of failure
to execute it, and where the defendant is to be found, if he can ascertain.
Where citation is executed by an alternative method as authorized by Rule 106, proof of service shall
be made in the manner ordered by the court.
No default judgment shall be granted in any cause until the citation, or process under Rules 108 or
108a, with proof of service as provided by this rule or by Rules 108 or 108a, or as ordered by the
court in the event citation is executed under Rule 106, shall have been on file with the clerk of the
court ten days, exclusive of the day of filing and the day of judgment.
RULE 108. DEFENDANT WITHOUT STATE
Where the defendant is absent from the State, or is a nonresident of the State, the form of notice to
such defendant of the institution of the suit shall be the same as prescribed for citation to a resident
defendant; and such notice may be served by any disinterested person competent to make oath of the
fact in the same manner as provided in Rule 106 hereof. The return of service in such cases shall be
endorsed on or attached to the original notice, and shall be in the form provided in Rule 107, and be
signed and sworn to by the party making such service before some officer authorized by the laws of
this State to take affidavits, under the hand and official seal of such officer. A defendant served with
such notice shall be required to appear and answer in the same manner and time and under the same
penalties as if he had been personally served with a citation within this State to the full extent that
he may be required to appear and answer under the Constitution of the United States in an action
either in rem or in personam.
RULE 108a. SERVICE OF PROCESS IN FOREIGN COUNTRIES
(1) Manner. Service of process may be effected upon a party in a foreign country if service of
the citation and petition is made:
(a) in the manner prescribed by the law of the foreign country for service in that country
in an action in any of its courts of general jurisdiction; or
(b) as directed by the foreign authority in response to a letter rogatory or a letter of
request; or
(c) in the manner provided by Rule 106; or
(d) pursuant to the terms and provisions of any applicable treaty or convention; or
(e) by diplomatic or consular officials when authorized by the United States Department
of State; or
(f) by any other means directed by the court that is not prohibited by the law of the
country where service is to be made.
The method for service of process in a foreign country must be reasonably calculated, under
all of the circumstances, to give actual notice of the proceedings to the defendant in time to
answer and defend. A defendant served with process under this rule shall be required to
appear and answer in the same manner and time and under the same penalties as if he had
been personally served with citation within this state to the full extent that he may be
required to appear and answer under the Constitution of the United States or under any
applicable convention or treaty in an action either in rem or in personam.
(2) Return. Proof of service may be made as prescribed by the law of the foreign country, by
order of the court, by Rule 107, or by a method provided in any applicable treaty or
convention.
RULE 109. CITATION BY PUBLICATION
When a party to a suit, his agent or attorney, shall make oath that the residence of any party
defendant is unknown to affiant, and to such party when the affidavit is made by his agent or
attorney, or that such defendant is a transient person, and that after due diligence such party and the
affiant have been unable to locate the whereabouts of such defendant, or that such defendant is
absent from or is a nonresident of the State, and that the party applying for the citation has attempted
to obtain personal service of nonresident notice as provided for in Rule 108, but has been unable to
do so, the clerk shall issue citation for such defendant for service by publication. In such cases it
shall be the duty of the court trying the case to inquire into the sufficiency of the diligence exercised
in attempting to ascertain the residence or whereabouts of the defendant or to obtain service of
nonresident notice, as the case may be, before granting any judgment on such service.
RULE 109a. OTHER SUBSTITUTED SERVICE
Whenever citation by publication is authorized, the court may, on motion, prescribe a different
method of substituted service, if the court finds, and so recites in its order, that the method so
prescribed would be as likely as publication to give defendant actual notice. When such method of
substituted service is authorized, the return of the officer executing the citation shall state particularly
the manner in which service is accomplished, and shall attach any return receipt, returned mail, or
other evidence showing the result of such service. Failure of defendant to respond to such citation
shall not render the service invalid. When such substituted service has been obtained and the
defendant has not appeared, the provisions of Rules 244 and 329 shall apply as if citation had been
served by publication.
RULE 110. EFFECT OF RULES ON OTHER STATUTES
Where by statute or these rules citation by publication is authorized and the statute or rules do not
specify the requisites of such citation or the method of service thereof, or where they direct that such
citation be issued or served as in other civil actions, the provisions of these rules shall govern.
Where, however, the statute authorizing citation by publication provides expressly for requisites of
such citation or service thereof, or both, differing from the provisions of Rules 114, 115, and 116,
these rules shall not govern, but the special statutory procedure shall continue in force; provided,
however, that Rule 117a shall control with respect to citation in tax suits.
RULE 111. CITATION BY PUBLICATION IN ACTION AGAINST UNKNOWN HEIRS
OR STOCKHOLDERS OF DEFUNCT CORPORATIONS
If the plaintiff, his agent, or attorney, shall make oath that the names of the heirs or stockholders
against whom an action is authorized by Section 17.004, Civil Practice and Remedies Code, are
unknown to the affiant, the clerk shall issue a citation for service by publication. Such citation shall
be addressed to the defendants by a concise description of their classification, as "the Unknown Heirs
of A.B., deceased," or "Unknown Stockholders of _________________ Corporation," as the case
may be, and shall contain the other requisites prescribed in Rules 114 and 115 and shall be served
as provided by Rule 116.
RULE 112. PARTIES TO ACTIONS AGAINST UNKNOWN OWNERS
OR CLAIMANTS OF INTEREST IN LAND
In suits authorized by Section 17.005, Civil Practice and Remedies Code, all persons claiming under
such conveyance whose names are known to plaintiff shall be made parties by name and cited to
appear, in the manner now provided by law as in other suits; all other persons claiming any interest
in such land under such conveyance may be made parties to the suit and cited by publication under
the designation "all persons claiming any title or interest in land under deed heretofore given to
_________________ of _________________ as grantee" (inserting in the blanks the name and
residence of grantee as given in such conveyance). It shall be permissible to join in one suit all
persons claiming under two or more conveyances affecting title to the same tract of land.
RULE 113. CITATION BY PUBLICATION IN ACTIONS AGAINST
UNKNOWN OWNERS OR CLAIMANTS OF INTEREST IN LAND
In suits authorized by Section 17.005, Civil Practice and Remedies Code, plaintiff, his agent or
attorney shall make and file with the clerk of the court an affidavit, stating
(a) the name of the grantee as set out in the conveyance constituting source of title of
defendants, and
(b) stating that affiant does not know the names of any persons claiming title or interest
under such conveyance other than as stated in plaintiff's petition and
(c) if the conveyance is to a company or association name as grantee, further stating
whether grantee is incorporated or unincorporated, if such fact is known, and if such
fact is unknown, so stating.
Said clerk shall thereupon issue a citation for service upon all persons claiming any title or
interest in such land under such conveyance. The citation in such cases shall contain the
requisites and be served in the manner provided in Rules 114, 115 and 116.
RULE 114. CITATION BY PUBLICATION; REQUISITES
Where citation by publication is authorized by these rules, the citation shall contain the requisites
prescribed by Rules 15 and 99, in so far as they are not inconsistent herewith, provided that no copy
of the plaintiff's petition shall accompany this citation, and the citation shall be styled "The State of
Texas" and shall be directed to the defendant or defendants by name, if their names are known, or
to the defendant or defendants as designated in the petition, if unknown, or such other classification
as may be fixed by any statute or by these rules. Where there are two or more defendants or classes
of defendants to be served by publication, the citation may be directed to all of them by name and
classification, so that service may be completed by publication of the one citation for the required
number of times. The citation shall contain the names of the parties, a brief statement of the nature
of the suit (which need not contain the details and particulars of the claim) a description of any
property involved and of the interest of the named or unknown defendant or defendants, and, where
the suit involves land, the requisites of Rule 115. If issued from the district or county court, the
citation shall command such parties to appear and answer at or before 10 o'clock a.m. of the first
Monday after the expiration of 42 days from the date of issuance thereof, specifying the day of the
week, the day of the month, and the time of day the defendant is required to answer. If issued from
the justice of the peace court, such citation shall command such parties to appear and answer on or
before the first day of the first term of court which convenes after the expiration of 42 days from the
date of issue thereof, specifying the day of the week, and the day of the month, that such term will
meet.
RULE 115. FORM OF PUBLISHED CITATION IN ACTIONS INVOLVING LAND
In citations by publication involving land, it shall be sufficient in making the brief statement of the
claim in such citation to state the kind of suit, the number of acres of land involved in the suit, or the
number of the lot and block, or any other plat description that may be of record if the land is situated
in a city or town, the survey on which and the county in which the land is situated, and any special
pleas which are relied upon in such suit.
RULE 116. SERVICE OF CITATION BY PUBLICATION
The citation, when issued, shall be served by the sheriff or any constable of any county of the State
of Texas or by the clerk of the court in which the case is pending, by having the same published once
each week for four (4) consecutive weeks, the first publication to be at least twenty-eight (28) days
before the return day of the citation. In all suits which do not involve the title to land or the partition
of real estate, such publication shall be made in the county where the suit is pending, if there be a
newspaper published in said county, but if not, then in an adjoining county where a newspaper is
published. In all suits which involve the title to land or partition of real estate, such publication shall
be made in the county where the land, or a portion thereof, is situated, if there be a newspaper in such
county, but if not, then in an adjoining county to the county where the land or a part thereof is
situated, where a newspaper is published.
RULE 117. RETURN OF CITATION BY PUBLICATION
The return of the officer executing such citation shall be indorsed or attached to the same, and show
how and when the citation was executed, specifying the dates of such publication, be signed by him
officially and shall be accompanied by a printed copy of such publication.
RULE 117a. CITATION IN SUITS FOR DELINQUENT AD VALOREM TAXES
In all suits for collection of delinquent ad valorem taxes, the rules of civil procedure governing
issuance and service of citation shall control the issuance and service of citation therein, except as
herein otherwise specially provided.
1. Personal Service: Owner and Residence Known, Within State. Where any defendant in
a tax suit is a resident of the State of Texas and is not subject to citation by publication under
subdivision 3 below, the process shall conform substantially to the form hereinafter set out
for personal service and shall contain the essential elements and be served and returned and
otherwise regulated by the provisions of Rules 99 to 107, inclusive.
2. Personal Service: Owner and Residence Known, Out of State. Where any such defendant
is absent from the State or is a nonresident of the State and is not subject to citation by
publication under subdivision 3 below, the process shall conform substantially to the form
hereinafter set out for personal service and shall contain the essential elements and be served
and returned and otherwise regulated by the provisions of Rule 108.
3. Service by Publication: Nonresident, Absent From State, Transient, Name Unknown,
Residence Unknown, Owner Unknown, Heirs Unknown, Corporate Officers, Trustees,
Receivers or Stockholders Unknown, Any Other Unknown Persons Owing or Claiming
or Having an Interest. Where any defendant in a tax suit is a nonresident of the State, or
is absent from the State, or is a transient person, or the name or the residence of any owner
of any interest in any property upon which a tax lien is sought to be foreclosed, is unknown
to the attorney requesting the issuance of process or filing the suit for the taxing unit, and
such attorney shall make affidavit that such defendant is a nonresident of the State, or is
absent from the State, or is a transient person, or that the name or residence of such owner
is unknown and cannot be ascertained after diligent inquiry, each such person in every such
class above mentioned, together with any and all other persons, including adverse claimants,
owning or claiming or having any legal or equitable interest in or lien upon such property,
may be cited by publication. All unknown owners of any interest in any property upon which
any taxing unit seeks to foreclose a lien for taxes, including stockholders of corporations -
defunct or otherwise - their successors, heirs, and assigns, may be joined in such suit under
the designation of "unknown owners" and citation be had upon them as such; provided,
however, that record owners of such property or of any apparent interest therein, including,
without limitation, record lien holders, shall not be included in the designation of "unknown
owners"; and provided further that where any record owner has rendered the property
involved within five years before the tax suit is filed, citation on such record owner may not
be had by publication or posting unless citation for personal service has been issued as to
such record owner, with a notation thereon setting forth the same address as is contained on
the rendition sheet made within such five years, and the sheriff or other person to whom
citation has been delivered makes his return thereon that he is unable to locate the defendant.
Where any attorney filing a tax suit for a taxing unit, or requesting the issance of process in
such suit, shall make affidavit that a corporation is the record owner of any interest in any
property upon which a tax lien is sought to be foreclosed, and that he does not know, and
after diligent inquiry has been unable to ascertain, the location of the place of business, if
any, of such corporation, or the name or place of residence of any officer of such corporation
upon whom personal service may be had, such corporation may be cited by publication as
herein provided. All defendants of the classes enumerated above may be joined in the same
citation by publication.
An affidavit which complies with the foregoing requirements therefor shall be sufficient
basis for the citation above mentioned in connection with it but shall be held to be made
upon the criminal responsibility of affiant.
Such citation by publication shall be directed to the defendants by names or by designation
as hereinabove provided, and shall be issued and signed by the clerk of the court in which
such tax suit is pending. It shall be sufficient if it states the file number and style of the case,
the date of the filing of the petition, the names of all parties by name or by designation as
hereinabove provided, and the court in which the suit is pending; shall command such parties
to appear and defend such suit at or before 10 o'clock a.m. of the first Monday after the
expiration of forty-two days from the date of the issuance thereof, specifying such date when
such parties are required to answer; shall state the place of holding the court, the nature of
the suit, and the date of the issuance of the citation; and shall be signed and sealed by the
clerk.
The citation shall be published in the English language one time a week for two weeks in
some newspaper published in the county in which the property is located, which newspaper
must have been in general circulation for at least one year immediately prior to the first
publication and shall in every respect answer the requirements of the law applicable to
newspapers which are employed for such a purpose, the first publication to be not less than
twenty-eight days prior to the return day fixed in the citation; and the affidavit of the editor
or publisher of the newspaper giving the date of publication, together with a printed copy of
the citation as published, shall constitute sufficient proof of due publication when returned
and filed in court. If there is no newspaper published in the county, then the publication may
be made in a newspaper in an adjoining county, which newspaper shall in every respect
answer the requirements of the law applicable to newspapers which are employed for such
a purpose. The maximum fee for publishing the citation shall be the lowest published word
or line rate of that newspaper for classified advertising. If the publication of the citation
cannot be had for this fee, chargeable as costs and payable upon sale of the property, as
provided by law, and this fact is supported by the affidavit of the attorney for the plaintiff or
the attorney requesting the issuance of the process, then service of the citation may be made
by posting a copy at the courthouse door of the county in which the suit is pending, the
citation to be posted at least twenty-eight days prior to the return day fixed in the citation.
Proof of the posting of the citation shall be made by affidavit of the attorney for the plaintiff,
or of the person posting it. When citation is served as here provided it shall be sufficient, and
no other form of citation or notice to the named defendants therein shall be necessary.
4. Citation in Tax Suits: General Provisions. Any process authorized by this rule may issue
jointly in behalf of all taxing units who are plaintiffs or intervenors in any tax suit. The
statement of the nature of the suit, to be set out in the citation, shall be sufficient if it contains
a brief general description of the property upon which the taxes are due and the amount of
such taxes, exclusive of interest, penalties, and costs, and shall state, in substance, that in
such suit the plaintiff and all other taxing units who may set up their claims therein seek
recovery of the delinquent ad valorem taxes due on said property, and the (establishment and
foreclosure) of liens, if any, securing the payment of same, as provided by law; that in
addition to the taxes all interest, penalties, and costs allowed by law up to and including the
day of judgment are included in the suit; and that all parties to the suit, including plaintiff,
defendants, and intervenors, shall take notice that claims for any taxes on said property
becoming delinquent subsequent to the filing of the suit and up to the day of judgment,
together with all interest, penalties, and costs allowed by law thereon, may, upon request
therefor, be recovered therein without further citation or notice to any parties thereto. Such
citation need not be accompanied by a copy of plaintiff's petition and no such copy need be
served. Such citation shall also show the names of all taxing units which assess and collect
taxes on said property not made parties to such suit, and shall contain, in substance, a
recitation that each party to such suit shall take notice of, and plead and answer to, all claims
and pleadings then on file or thereafter filed in said cause by all other parties therein, or who
may intervene therein and set up their respective tax claims against said property. After
citation or notice has been given on behalf of any plaintiff or intervenor taxing unit, the court
shall have jurisdiction to hear and determine the tax claims of all taxing units who are parties
plaintiff, intervenor or defendant at the time such process is issued and of all taxing units
intervening after such process is issued, not only for the taxes, interest, penalties, and costs
which may be due on said property at the time the suit is filed, but those becoming delinquent
thereon at any time thereafter up to and including the day of judgment, without the necessity
of further citation or notice to any party to said suit; and any taxing unit having a tax claim
against said property may, by answer or intervention, set up and have determined its tax
claim without the necessity of further citation or notice to any parties to such suit.
5. Form of Citation by Publication or Posting. The form of citation by publication or posting
shall be sufficient if it is in substantially the following form, with proper changes to make
the same applicable to personal property, where necessary, and if the suit includes or is for
the recovery of taxes assessed on personal property, a general description of such personal
property shall be sufficient:
THE STATE OF TEXAS )
COUNTY OF ________________________)
In the name and by the authority of the State of Texas
Notice is hereby given as follows:
To _________________
____________________
and any and all other persons, including adverse claimants, owning or having or claiming any legal
or equitable interest in or lien upon the following described property delinquent to Plaintiff herein,
for taxes, to-wit:
_________________
_________________
Which said property is delinquent to Plaintiff for taxes in the following amounts:
$ _________________, exclusive of interest, penalties, and costs, and there is included in this suit
in addition to the taxes all said interest, penalties, and costs thereon, allowed by law up to and
including the day of judgment herein.
You are hereby notified that suit has been brought by _________________ as Plaintiffs, against
_________________ as Defendants, by petition filed on the _________________ day of
_________________, 19_________________, in a certain suit styled _________________ v.
_________________ for collection of the taxes on said property and that said suit is now pending
in the District Court of _________________ County, Texas, _________________ Judicial District,
and the file number of said suit is _________________, that the names of all taxing units which
assess and collect taxes on the property hereinabove described, not made parties to this suit, are ______________.
Plaintiff and all other taxing units who may set up their tax claims herein seek recovery of delinquent
ad valorem taxes on the property hereinabove described, and in addition to the taxes all interest,
penalties, and costs allowed by law thereon up to and including the day of judgment herein, and the
establishment and foreclosure of liens, if any, securing the payment of same, as provided by law.
All parties to this suit, including plaintiff, defendants, and intervenors, shall take notice that claims
not only for any taxes which were delinquent on said property at the time this suit was filed but all
taxes becoming delinquent thereon at any time thereafter up to the day of judgment, including all
interest, penalties, and costs allowed by law thereon, may, upon request therefor, be recovered herein
without further citation or notice to any parties herein, and all said parties shall take notice of and
plead and answer to all claims and pleadings now on file and which may hereafter be filed in said
cause by all other parties herein, and all of those taxing units above named who may intervene herein
and set up their respective tax claims against said property.
You are hereby commanded to appear and defend such suit on the first Monday after the expiration
of forty-two (42) days from and after the date of issuance hereof, the same being the
_________________ day of _________________, A.D., 19_________________ (which is the return
day of such citation), before the honorable District Court of _________________ County, Texas,
to be held at the courthouse thereof, then and there to show cause why judgment shall not be
rendered for such taxes, penalties, interest, and costs, and condemning said property and ordering
foreclosure of the constitutional and statutory tax liens thereon for taxes due the plaintiff and the
taxing units parties hereto, and those who may intervene herein, together with all interest, penalties,
and costs allowed by law up to and including the day of judgment herein, and all costs of this suit.
Issued and given under my hand and seal of said court in the City of _________________,
_________________ County, Texas, this _________________ day of _________________, A.D.,
19_________________.
_________________
Clerk of the District Court.
_________________ County, Texas,
_________________ Judicial District.
6. Form of Citation by Personal Service in or out of State. The form of citation for personal
service shall be sufficient if it is in substantially the following form, with proper changes to
make the same applicable to personal property, where necessary, and if the suit includes or
is for the recovery of taxes assessed on personal property, a general description of such
personal property shall be sufficient:
THE STATE OF TEXAS
To _________________, Defendant,
GREETING:
YOU ARE HEREBY COMMANDED to appear and answer before the Honorable District Court,
_________________ Judicial District, _________________ County, Texas, at the Courthouse of
said county in _________________, Texas, at or before 10 o'clock a.m. of the Monday next after
the expiration of 20 days from the date of service of this citation, then and there to answer the
petition of _________________, Plaintiff, filed in said Court on the _________________ day of
_________________, A.D., 19_________________, against _________________, Defendant, said
suit being number _________________ on the docket of said Court, the nature of which demand is
a suit to collect delinquent ad valorem taxes on the property hereinafter described.
The amount of taxes due Plaintiff, exclusive of interest, penalties, and costs, is the sum of $
_________________, said property being described as follows, to-wit: _________________
__________________________________
The names of all taxing units which assess and collect taxes on said property, not made parties to
this suit, are: _________________
Plaintiff and all other taxing units who may set up their tax claims herein seek recovery of delinquent
ad valorem taxes on the property hereinabove described, and in addition to the taxes all interest,
penalties, and costs allowed by law thereon up to and including the day of judgment herein, and the
establishment and foreclosure of liens securing the payment of same, as provided by law.
All parties to this suit, including plaintiff, defendants, and intervenors, shall take notice that claims
not only for any taxes which were delinquent on said property at the time this suit was filed but all
taxes becoming delinquent thereon at any time thereafter up to the day of judgment, including all
interest, penalties, and costs allowed by law thereon, may, upon request therefor, be recovered herein
without further citation or notice to any parties herein, and all said parties shall take notice of and
plead and answer to all claims and pleadings now on file and which may hereafter be filed in this
cause by all other parties hereto, and by all of those taxing units above named, who may intervene
herein and set up their respective tax claims against said property.
If this citation is not served within 90 days after the date of its issuance, it shall be returned unserved.
The officer executing this return shall promptly serve the same according to the requirements of law
and the mandates hereof and make due return as the law directs.
Issued and given under my hand and seal of said Court at _________________, Texas, this the
_________________ day of _________________, A.D., 19_________________.
_________________
Clerk of the District Court of
_________________ County, Texas.
By _________________, Deputy.
_________________
RULE 118. AMENDMENT
At any time in its discretion and upon such notice and on such terms as it deems just, the court may
allow any process or proof of service thereof to be amended, unless it clearly appears that material
prejudice would result to the substantial rights of the party against whom the process issued.
RULE 119. ACCEPTANCE OF SERVICE
The defendant may accept service of process, or waive the issuance or service thereof by a written
memorandum signed by him, or by his duly authorized agent or attorney, after suit is brought, sworn
to before a proper officer other than an attorney in the case, and filed among the papers of the cause,
and such waiver or acceptance shall have the same force and effect as if the citation had been issued
and served as provided by law. The party signing such memorandum shall be delivered a copy of
plaintiff's petition, and the receipt of the same shall be acknowledged in such memorandum. In every
divorce action such memorandum shall also include the defendant's mailing address.
RULE 119a. COPY OF DECREE
The district clerk shall forthwith mail a certified copy of the final divorce decree or order of
dismissal to the party signing a memorandum waiving issuance or service of process. Such divorce
decree or order of dismissal shall be mailed to the signer of the memorandum at the address stated
in such memorandum or to the office of his attorney of record.
RULE 120. ENTERING APPEARANCE
The defendant may, in person, or by attorney, or by his duly authorized agent, enter an appearance
in open court. Such appearance shall be noted by the judge upon his docket and entered in the
minutes, and shall have the same force and effect as if the citation had been duly issued and served
as provided by law.
RULE 120a. SPECIAL APPEARANCE
1. Notwithstanding the provisions of Rules 121, 122 and 123, a special appearance may be
made by any party either in person or by attorney for the purpose of objecting to the
jurisdiction of the court over the person or property of the defendant on the ground that such
party or property is not amenable to process issued by the courts of this State. A special
appearance may be made as to an entire proceeding or as to any severable claim involved
therein. Such special appearance shall be made by sworn motion filed prior to motion to
transfer venue or any other plea, pleading or motion; provided however, that a motion to
transfer venue and any other plea, pleading, or motion may be contained in the same
instrument or filed subsequent thereto without waiver of such special appearance; and may
be amended to cure defects. 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. Every appearance, prior to judgment, not in
compliance with this rule is a general appearance.
2. Any motion to challenge the jurisdiction provided for herein shall be heard and determined
before a motion to transfer venue or any other plea or pleading may be heard. No
determination of any issue of fact in connection with the objection to jurisdiction is a
determination of the merits of the case or any aspect thereof.
3. The court shall determine the special appearance on the basis of the pleadings, any
stipulations made by and between the parties, such affidavits and attachments as may be filed
by the parties, the results of discovery processes, and any oral testimony. The affidavits, if
any, shall be served at least seven days before the hearing, 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.
Should it appear from the affidavits of a party opposing the motion that he cannot for reasons
stated present by affidavit facts essential to justify his opposition, the court may order a
continuance to permit affidavits to be obtained or depositions to be taken or discovery to be
had or may make such other order as is just.
Should it appear to the satisfaction of the court at any time that any of such affidavits are
presented in violation of Rule 13, the court shall impose sanctions in accordance with that
rule.
4. If the court sustains the objection to jurisdiction, an appropriate order shall be entered. If the
objection to jurisdiction is overruled, the objecting party may thereafter appear generally for
any purpose. Any such special appearance or such general appearance shall not be deemed
a waiver of the objection to jurisdiction when the objecting party or subject matter is not
amenable to process issued by the courts of this State.
RULE 121. ANSWER IS APPEARANCE
An answer shall constitute an appearance of the defendant so as to dispense with the necessity for
the issuance or service of citation upon him.
RULE 122. CONSTRUCTIVE APPEARANCE
If the citation or service thereof is quashed on motion of the defendant, such defendant shall be
deemed to have entered his appearance at ten o'clock a.m. on the Monday next after the expiration
of twenty (20) days after the day on which the citation or service is quashed, and such defendant shall
be deemed to have been duly served so as to require him to appear and answer at that time, and if
he fails to do so, judgment by default may be rendered against him.
RULE 123. REVERSAL OF JUDGMENT
Where the judgment is reversed on appeal or writ of error for the want of service, or because of
defective service of process, no new citation shall be issued or served, but the defendant shall be
presumed to have entered his appearance to the term of the court at which the mandate shall be filed.
RULE 124. NO JUDGMENT WITHOUT SERVICE
In no case shall judgment be rendered against any defendant unless upon service, or acceptance or
waiver of process, or upon an appearance by the defendant, as prescribed in these rules, except where
otherwise expressly provided by law or these rules.
When a party asserts a counterclaim or a cross-claim against another party who has entered an
appearance, the claim may be served in any manner prescribed for service of citation or as provided
in Rule 21(a).
SECTION 6. COSTS AND SECURITY THEREFOR
RULE 125. PARTIES RESPONSIBLE
Each party to a suit shall be liable to the officers of the court for all costs incurred by himself.
RULE 126. FEE FOR EXECUTION OF PROCESS, DEMAND
No sheriff or constable shall be compelled to execute any process in civil cases coming from any
county other than the one in which he is an officer, unless the fees allowed him by law for the service
of such process shall be paid in advance; except when affidavit is filed, as provided by law or these
rules. The clerk issuing the process shall indorse thereon the words "pauper oath filed," and sign his
name officially below them; and the officer in whose hands such process is placed for service shall
serve the same.
RULE 127. PARTIES LIABLE FOR OTHER COSTS
Each party to a suit shall be liable for all costs incurred by him. If the costs cannot be collected from
the party against whom they have been judged, execution may issue against any party in such suit
for the amount of costs incurred by such party, but no more.
RULE 129. HOW COSTS COLLECTED
If any party responsible for costs fails or refuses to pay the same within ten days after demand for
payment, the clerk or justice of the peace may make certified copy of the bill of costs then due, and
place the same in the hands of the sheriff or constable for collection. All taxes imposed on law
proceedings shall be included in the bill of costs. Such certified bill of costs shall have the force and
effect of an execution. The removal of a case by appeal shall not prevent the issuance of an execution
for costs.
RULE 130. OFFICER TO LEVY
The sheriff or constable upon demand and failure to pay said bill of costs, may levy upon a sufficient
amount of property of the person from whom said costs are due to satisfy the same, and sell such
property as under execution. Where such party is not a resident of the county where such suit is
pending, the payment of such costs may be demanded of his attorney of record; and neither the clerk
nor justice of the peace shall be allowed to charge any fee for making out such certified bill of costs,
unless he is compelled to make a levy.
RULE 131. SUCCESSFUL PARTY TO RECOVER
The successful party to a suit shall recover of his adversary all costs incurred therein, except where
otherwise provided.
RULE 133. COSTS OF MOTION
The court may give or refuse costs on motions at its discretion, except where otherwise provided by
law or these rules.
RULE 136. DEMAND REDUCED BY PAYMENTS
Where the plaintiff's demand is reduced by payment to an amount which would not have been within
the jurisdiction of the court, the defendant shall recover his costs.
RULE 137. IN ASSAULT AND BATTERY, ETC.
In civil actions for assault and battery, slander and defamation of character, if the verdict or judgment
shall be for the plaintiff, but for less than twenty dollars, the plaintiff shall not recover his costs, but
each party shall be taxed with the costs incurred by him in such suit.
RULE 138. COST OF NEW TRIALS
The costs of new trials may either abide the result of the suit or may be taxed against the party to
whom the new trial is granted, as the court may adjudge when he grants such new trial.
RULE 139. ON APPEAL AND CERTIORARI
When a case is appealed, if the judgment of the higher court be against the appellant, but for less
amount than the original judgment, such party shall recover the costs of the higher court but shall
be adjudged to pay the costs of the court below; if the judgment be against him for the same or a
greater amount than in the court below, the adverse party shall recover the costs of both courts. If
the judgment of the court above be in favor of the party appealing and for more than the original
judgment, such party shall recover the costs of both courts; if the judgment be in his favor, but for
the same or a less amount than in the court below, he shall recover the costs of the court below, and
pay the costs of the court above.
RULE 140. NO FEE FOR COPY
No fee for a copy of a paper not required by law or these rules to be copied shall be taxed in the bill
of costs.
RULE 141. COURT MAY OTHERWISE ADJUDGE COSTS
The court may, for good cause, to be stated on the record, adjudge the costs otherwise than as
provided by law or these rules.
RULE 142. SECURITY FOR COSTS
The clerk shall require from the plaintiff fees for services rendered before issuing any process unless
filing is requested pursuant to Rule 145 of these rules.
RULE 143. RULE FOR COSTS
A party seeking affirmative relief may be ruled to give security for costs at any time before final
judgment, upon motion of any party, or any officer of the court interested in the costs accruing in
such suit, or by the court upon its own motion. If such rule be entered against any party and he failed
to comply therewith on or before twenty (20) days after notice that such rule has been entered, the
claim for affirmative relief of such party shall be dismissed.
RULE 143a. COSTS ON APPEAL TO COUNTY COURT
If the appellant fails to pay the costs on appeal from a judgment of a justice of the peace or small
claims court within twenty (20) days after being notified to do so by the county clerk, the appeal shall
be deemed not perfected and the county clerk shall return all papers in said cause to the justice of
the peace having original jurisdiction and the justice of the peace shall proceed as though no appeal
had been attempted.
RULE 144. JUDGMENT ON COST BOND
All bonds given as security for costs shall authorize judgment against all the obligors in such bond
for the said costs, to be entered in the final judgment of the cause.
RULE 145. AFFIDAVIT ON INDIGENCY
(a) Affidavit. In lieu of paying or giving security for costs of an original action, a party who is
unable to afford costs must file an affidavit as herein described. A "party who is unable to
afford costs" is defined as a person who is presently receiving a governmental entitlement
based on indigency or any other person who has no ability to pay costs. Upon the filing of
the affidavit, the clerk must docket the action, issue citation and provide such other
customary services as are provided any party.
(b) Contents of Affidavit. The affidavit must contain complete information as to the party's
identity, nature and amount of governmental entitlement income, nature and amount of
employment income, other income, (interest, dividends, etc.), spouse's income if available
to the party, property owned (other than homestead), cash or checking account, dependents,
debts, and monthly expenses. The affidavit shall contain the following statements: "I am
unable to pay the court costs. I verify that the statements made in this affidavit are true and
correct." The affidavit shall be sworn before a notary public or other officer authorized to
administer oaths. If the party is represented by an attorney on a contingent fee basis, due to
the party's indigency, the attorney may file a statement to that effect to assist the court in
understanding the financial condition of the party.
© IOLTA Certificate. If the party is represented by an attorney who is providing free legal
services, without contingency, because of the party's indigency and the attorney is providing
services either directly or by referral from a program funded by the Interest on Lawyers Trust
Accounts (IOLTA) program, the attorney may file an IOLTA certificate confirming that the
IOLTA-funded program screened the party for income eligibility under the IOLTA income
guidelines. A party's affidavit of inability accompanied by an attorney's IOLTA certificate
may not be contested.
(d) Contest. The defendant or the clerk may contest an affidavit that is not accompanied by an
IOLTA certificate by filing a written contest giving notice to all parties and, in an appeal
under Texas Government Code, section 28.052, notice to both the small claims court and the
county clerk. A party's affidavit of inability that attests to receipt of government entitlement
based on indigency may be contested only with respect to the veracity of the attestation.
Temporary hearings will not be continued pending the filing of the contest. If the court finds
at the first regular hearing in the course of the action that the party (other than a party
receiving a governmental entitlement based on indigency) is able to afford costs, the party
must pay the costs of the action. Reasons for such a finding must be contained in an order.
Except with leave of court, no further steps in the action will be taken by a party who is
found able to afford costs until payment is made. If the party's action results in monetary
award, and the court finds sufficient monetary award to reimburse costs, the party must pay
the costs of the action. If the court finds that another party to the suit can pay the costs of the
action, the other party must pay the costs of the action.
(e) Attorney's Fees and Costs. Nothing herein will preclude any existing right to recover
attorney's fees, expenses or costs from any other party.
RULE 146. DEPOSIT FOR COSTS
In lieu of a bond for costs, the party required to give the same may deposit with the clerk of court
or the justice of the peace such sum as the court or justice from time to time may designate as
sufficient to pay the accrued costs.
RULE 147. APPLIES TO ANY PARTY
The foregoing rules as to security and rule for costs shall apply to any party who seeks a judgment
against any other party.
RULE 148. SECURED BY OTHER BOND
No further security shall be required if the costs are secured by the provisions of an attachment or
other bond filed by the party required to give security for costs.
RULE 149. EXECUTION FOR COSTS
When costs have been adjudged against a party and are not paid, the clerk or justice of the court in
which the suit was determined may issue execution, accompanied by an itemized bill of costs,
against such party to be levied and collected as in other cases; and said officer, on demand of any
party to whom any such costs are due, shall issue execution for costs at once. This rule shall not
apply to executors, administrators or guardians in cases where costs are adjudged against the estate
of a deceased person or of a ward. No execution shall issue in any case for costs until after judgment
rendered therefor by the court.
SECTION 7. ABATEMENT AND DISCONTINUANCE OF SUIT
RULE 150. DEATH OF PARTY
Where the cause of action is one which survives, no suit shall abate because of the death of any party
thereto before the verdict or decision of the court is rendered, but such suit may proceed to judgment
as hereinafter provided.
RULE 151. DEATH OF PLAINTIFF
If the plaintiff dies, the heirs, or the administrator or executor of such decedent may appear and upon
suggestion of such death being entered of record in open court, may be made plaintiff, and the suit
shall proceed in his or their name. If no such appearance and suggestion be made within a reasonable
time after the death of the plaintiff, the clerk upon the application of defendant, his agent or attorney,
shall issue a scire facias for the heirs or the administrator or executor of such decedent, requiring him
to appear and prosecute such suit. After service of such scire facias, should such heir or administrator
or executor fail to enter appearance within the time provided, the defendant may have the suit
dismissed.
RULE 152. DEATH OF DEFENDANT
Where the defendant shall die, upon the suggestion of death being entered of record in open court,
or upon petition of the plaintiff, the clerk shall issue a scire facias for the administrator or executor
or heir requiring him to appear and defend the suit and upon the return of such service, the suit shall
proceed against such administrator or executor or heir.
RULE 153. WHEN EXECUTOR, ETC. DIES
When an executor or administrator shall be a party to any suit, whether as plaintiff or as defendant,
and shall die or cease to be such executor or administrator, the suit may be continued by or against
the person succeeding him in the administration, or by or against the heirs, upon like proceedings
being had as provided in the two preceding rules, or the suit may be dismissed, as provided in Rule
151.
RULE 154. REQUISITES OF SCIRE FACIAS
The scire facias and returns thereon, provided for in this section, shall conform to the requisites of
citations and the returns thereon, under the provisions of these rules.
RULE 155. SURVIVING PARTIES
Where there are two or more plaintiffs or defendants, and one or more of them die, upon suggestion
of such death being entered upon the record, the suit shall at the instance of either party proceed in
the name of the surviving plaintiffs or against the surviving defendants, as the case may be.
RULE 156. DEATH AFTER VERDICT OR CLOSE OF EVIDENCE
When a party in a jury case dies between verdict and judgment, or a party in a non-jury case dies
after the evidence is closed and before judgment is pronounced, judgment shall be rendered and
entered as if all parties were living.
RULE 158. SUIT FOR THE USE OF ANOTHER
When a plaintiff suing for the use of another shall die before verdict, the person for whose use such
suit was brought, upon such death being suggested on the record in open court, may prosecute the
suit in his own name, and shall be as responsible for costs as if he brought the suit
RULE 159. SUIT FOR INJURIES RESULTING IN DEATH
In cases arising under the provisions of the title relating to injuries resulting in death, the suit shall
not abate by the death of either party pending the suit, but in such case, if the plaintiff dies, where
there is only one plaintiff, some one or more of the parties entitled to the money recovered may be
substituted and the suit prosecuted to judgment in the name of such party or parties, for the benefit
of the person entitled; if the defendant dies, his executor, administrator or heir may be made a party,
and the suit prosecuted to judgment.
RULE 160. DISSOLUTION OF CORPORATION
The dissolution of a corporation shall not operate to abate any pending suit in which such corporation
is a defendant, but such suit shall continue against such corporation and judgment shall be rendered
as though the same were not dissolved.
RULE 161. WHERE SOME DEFENDANTS NOT SERVED
When some of the several defendants in a suit are served with process in due time and others are not
so served, the plaintiff may either dismiss as to those not so served and proceed against those who
are, or he may take new process against those not served, or may obtain severance of the case as
between those served and those not served, but no dismissal shall be allowed as to a principal obligor
without also dismissing the parties secondarily liable except in cases provided by statute. No
defendant against whom any suit may be so dismissed shall be thereby exonerated from any liability,
but may at any time be proceeded against as if no such suit had been brought and no such dismissal
ordered.
RULE 162. DISMISSAL OR NON-SUIT
At any time before the plaintiff has introduced all of his evidence other than rebuttal evidence, the
plaintiff may dismiss a case, or take a non-suit, which shall be entered in the minutes. Notice of the
dismissal or non-suit shall be served in accordance with Rule 21a on any party who has answered
or has been served with process without necessity of court order.
Any dismissal pursuant to this rule shall not prejudice the right of an adverse party to be heard on
a pending claim for affirmative relief or excuse the payment of all costs taxed by the clerk. A
dismissal under this rule shall have no effect on any motion for sanctions, attorney's fees or other
costs, pending at the time of dismissal, as determined by the court. Any dismissal pursuant to this
rule which terminates the case shall authorize the clerk to tax court costs against dismissing party
unless otherwise ordered by the court.
RULE 163. DISMISSAL AS TO PARTIES SERVED, ETC.
When it will not prejudice another party, the plaintiff may dismiss his suit as to one or more of
several parties who were served with process, or who have answered, but no such dismissal shall in
any case, be allowed as to a principal obligor, except in the cases provided for by statute.
RULE 165. ABANDONMENT
A party who abandons any part of his claim or defense, as contained in the pleadings, may have that
fact entered of record, so as to show that the matters therein were not tried.
RULE 165a. DISMISSAL FOR WANT OF PROSECUTION
1. Failure to Appear. A case may be dismissed for want of prosecution on failure of any party
seeking affirmative relief to appear for any hearing or trial of which the party had notice.
Notice of the court's intention to dismiss and the date and place of the dismissal hearing shall
be sent by the clerk to each attorney of record, and to each party not represented by an
attorney and whose address is shown on the docket or in the papers on file, by posting same
in the United States Postal Service. At the dismissal hearing, the court shall dismiss for want
of prosecution unless there is good cause for the case to be maintained on the docket. If the
court determines to maintain the case on the docket, it shall render a pretrial order assigning
a trial date for the case and setting deadlines for the joining of new parties, all discovery,
filing of all pleadings, the making of a response or supplemental responses to discovery and
other pretrial matters. The case may be continued thereafter only for valid and compelling
reasons specifically determined by court order. Notice of the signing of the order of dismissal
shall be given as provided in Rule 306a. Failure to mail notices as required by this rule shall
not affect any of the periods mentioned in Rule 306a except as provided in that rule.
2. Non-Compliance With Time Standards. Any case not disposed of within time standards
promulgated by the Supreme Court under its Administrative Rules may be placed on a
dismissal docket.
3. Reinstatement. A motion to reinstate shall set forth the grounds therefor and be verified by
the movant or his attorney. It shall be filed with the clerk within 30 days after the order of
dismissal is signed or within the period provided by Rule 306a. A copy of the motion to
reinstate shall be served on each attorney of record and each party not represented by an
attorney whose address is shown on the docket or in the papers on file. The clerk shall deliver
a copy of the motion to the judge, who shall set a hearing on the motion as soon as
practicable. The court shall notify all parties or their attorneys of record of the date, time and
place of the hearing.
The court shall reinstate the case upon finding after a hearing that the failure of the party or
his attorney was not intentional or the result of conscious indifference but was due to an
accident or mistake or that the failure has been otherwise reasonably explained.
In the event for any reason a motion for reinstatement is not decided by signed written order
within seventy-five days after the judgment is signed, or, within such other time as may be
allowed by Rule 306a, the motion shall be deemed overruled by operation of law. If a motion
to reinstate is timely filed by any party, the trial court, regardless of whether an appeal has
been perfected, has plenary power to reinstate the case until 30 days after all such timely filed
motions are overruled, either by a written and signed order or by operation of law, whichever
occurs first.
4. Cumulative Remedies. This dismissal and reinstatement procedure shall be cumulative of
the rules and laws governing any other procedures available to the parties in such cases. The
same reinstatement procedures and timetable are applicable to all dismissals for want of
prosecution including cases which are dismissed pursuant to the court's inherent power,
whether or not a motion to dismiss has been filed.
SECTION 8. PRE-TRIAL PROCEDURE
RULE 166. PRE-TRIAL CONFERENCE
In an appropriate action, to assist in the disposition of the case without undue expense or burden to
the parties, the court may in its discretion direct the attorneys for the parties and the parties or their
duly authorized agents to appear before it for a conference to consider:
(a) All pending dilatory pleas, motions and exceptions;
(b) The necessity or desirability of amendments to the pleadings;
(c) A discovery schedule;
(d) Requiring written statements of the parties' contentions;
(e) Contested issues of fact and the simplification of the issues;
(f) The possibility of obtaining stipulations of fact;
(g) The identification of legal matters to be ruled on or decided by the court;
(h) The exchange of a list of direct fact witnesses, other than rebuttal or impeaching
witnesses the necessity of whose testimony cannot reasonably be anticipated before
the time of trial, who will be called to testify at trial, stating their address and
telephone number, and the subject of the testimony of each such witness;
(i) The exchange of a list of expert witnesses who will be called to testify at trial, stating
their address and telephone number, and the subject of the testimony and opinions
that will be proffered by each expert witness;
(j) Agreed applicable propositions of law and contested issues of law;
(k) Proposed jury charge questions, instructions, and definitions for a jury case or
proposed findings of fact and conclusions of law for a nonjury case;
(l ) The marking and exchanging of all exhibits that any party may use at trial and
stipulation to the authenticity and admissibility of exhibits to be used at trial;
(m) Written trial objections to the opposite party's exhibits, stating the basis for each
objection;
(n) The advisability of a preliminary reference of issues to a master or auditor for
findings to be used as evidence when the trial is to be by jury;
(o) The settlement of the case, and to aid such consideration, the court may encourage
settlement;
(p) Such other matters as may aid in the disposition of the action.
The court shall make an order which recites the action taken at the pretrial conference, the
amendments allowed to the pleadings, the time within which same may be filed, and the agreements
made by the parties as to any of the matters considered, and which limits the issues for trial to those
not disposed of by admissions, agreements of counsel, or rulings of the court; and such order when
issued shall control the subsequent course of the action, unless modified at the trial to prevent
manifest injustice. The court in its discretion may establish by rule a pretrial calendar on which
actions may be placed for consideration as above provided and may either confine the calendar to
jury actions or extend it to all actions.
Pretrial proceedings in multidistrict litigation may also be governed by Rules 11 and 13 of the Rules
of Judicial Administration.
RULE 166a. SUMMARY JUDGMENT
(a) For Claimant. A party seeking to recover upon a claim, counterclaim, 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 his favor
upon all or any part thereof. A summary judgment, interlocutory in character, may be
rendered on the issue of liability alone although there is a genuine issue as to amount of
damages.
(b) For Defending Party. A party against whom a claim, counterclaim, or cross-claim is
asserted or a declaratory judgment is sought may, at any time, move with or without
supporting affidavits for a summary judgment in his favor as to all or any part thereof.
(c) Motion and Proceedings Thereon. The motion for summary judgment shall state the
specific grounds therefor. Except on leave of court, with notice to opposing counsel, the
motion and any supporting affidavits shall be filed and served at least twenty-one days before
the time specified for hearing. Except on leave of court, the adverse party, not later than
seven days prior to the day of hearing may file and serve opposing affidavits or other written
response. No oral testimony shall be received at the hearing. The judgment sought shall be
rendered forthwith if (i) the deposition transcripts, interrogatory answers, and other discovery
responses referenced or set forth in the motion or response, and (ii) the pleadings,
admissions, affidavits, stipulations of the parties, and authenticated or certified public
records, if any, on file at the time of the hearing, or filed thereafter and before judgment with
permission of the court, show that, except as to the amount of damages, there is no genuine
issue as to any material fact and the moving party is entitled to judgment as a matter of law
on the issues expressly set out in the motion or in an answer or any other response. Issues not
expressly presented to the trial court by written motion, answer or other response shall not
be considered on appeal as grounds for reversal. A summary judgment may be based on
uncontroverted testimonial evidence of an interested witness, or of an expert witness as to
subject matter concerning which the trier of fact must be guided solely by the opinion
testimony of experts, if the evidence is clear, positive and direct, otherwise credible and free
from contradictions and inconsistencies, and could have been readily controverted.
(d) Appendices, References and Other Use of Discovery Not Otherwise on File. Discovery
products not on file with the clerk may be used as summary judgment evidence if copies of
the material, appendices containing the evidence, or a notice containing specific references
to the discovery or specific references to other instruments, are filed and served on all parties
together with a statement of intent to use the specified discovery as summary judgment
proofs: (i) at least twenty-one days before the hearing if such proofs are to be used to support
the summary judgment; or (ii) at least seven days before the hearing if such proofs are to be
used to oppose the summary judgment.
(e) Case Not Fully Adjudicated on Motion. If summary judgment is not rendered upon the
whole case or for all the relief asked and a trial is necessary, the judge may at the hearing
examine the pleadings and the evidence on file, interrogate counsel, ascertain what material
fact issues exist and make an order specifying the facts that are established as a matter of law,
and directing such further proceedings in the action as are just.
(f) Form of Affidavits; Further Testimony. Supporting and opposing affidavits shall be made
on personal knowledge, shall set forth such facts as would be admissible in evidence, and
shall show affirmatively that the affiant is competent to testify to the matters stated therein.
Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be
attached thereto or served therewith. The court may permit affidavits to be supplemented or
opposed by depositions or by further affidavits. Defects in the form of affidavits or
attachments will not be grounds for reversal unless specifically pointed out by objection by
an opposing party with opportunity, but refusal, to amend.
(g) When Affidavits Are Unavailable. Should it appear from the affidavits of a party opposing
the motion that he cannot for reasons stated present by affidavit facts essential to justify his
opposition, the court may refuse the application for judgment or may order a continuance to
permit affidavits to be obtained or depositions to be taken or discovery to be had or may
make such other order as is just.
(h) Affidavits Made in Bad Faith. Should it appear to the satisfaction of the court at any time
that any of the affidavits presented pursuant to this rule are presented in bad faith or solely
for the purpose of delay, the court shall forthwith order the party employing them to pay to
the other party the amount of the reasonable expenses which the filing of the affidavits
caused him to incur, including reasonable attorney's fees, and any offending party or attorney
may be adjudged guilty of contempt.
(i) No-Evidence Motion. After adequate time for discovery, a party without presenting
summary judgment evidence may 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 motion unless the respondent produces
summary judgment evidence raising a genuine issue of material fact.
RULE 167. OFFER OF SETTLEMENT; AWARD OF LITIGATION COSTS
167.1 Generally.
Certain litigation costs may be awarded against a party who rejects an offer made substantially in
accordance with this rule to settle a claim for monetary damages - including a counterclaim,
crossclaim, or third-party claim - except in:
(a) a class action;
(b) a shareholder's derivative action;
(c) an action by or against the State, a unit of state government, or a political subdivision
of the State;
(d) an action brought under the Family Code;
(e) an action to collect workers' compensation benefits under title 5, subtitle A of the
Labor Code; or
(f) an action filed in a justice of the peace court or small claims court.
167.2 Settlement Offer.
(a) Defendant's declaration a prerequisite; deadline. A settlement offer under this rule may
not be made until a defendant -- a party against whom a claim for monetary damages is made
-- files a declaration invoking this rule. When a defendant files such a declaration, an offer
or offers may be made under this rule to settle only those claims by and against that
defendant. The declaration must be filed no later than 45 days before the case is set for
conventional trial on the merits.
(b) Requirements of an offer. A settlement offer must:
(1) be in writing;
(2) state that it is made under Rule 167 and Chapter 42 of the Texas Civil Practice and
Remedies Code;
(3) identify the party or parties making the offer and the party or parties to whom the
offer is made;
(4) state the terms by which all monetary claims - including any attorney fees, interest,
and costs that would be recoverable up to the time of the offer - between the offeror
or offerors on the one hand and the offeree or offerees on the other may be settled;
(5) state a deadline - no sooner than 14 days after the offer is served - by which the offer
must be accepted;
(6) be served on all parties to whom the offer is made.
(c) Conditions of offer. An offer may be made subject to reasonable conditions, including the
execution of appropriate releases, indemnities, and other documents. An offeree may object
to a condition by written notice served on the offeror before the deadline stated in the offer.
A condition to which no such objection is made is presumed to have been reasonable.
Rejection of an offer made subject to a condition determined by the trial court to have been
unreasonable cannot be the basis for an award of litigation costs under this rule.
(d) Non-monetary and excepted claims not included. An offer must not include nonmonetary
claims and other claims to which this rule does not apply.
(e) Time limitations. An offer may not be made:
(1) before a defendant's declaration is filed;
(2) within 60 days after the appearance in the case of the offeror or offeree, whichever
is later;
(3) within 14 days before the date the case is set for a conventional trial on the merits,
except that an offer may be made within that period if it is in response to, and within
seven days of, a prior offer.
(f) Successive offers. A party may make an offer after having made or rejected a prior offer.
A rejection of an offer is subject to imposition of litigation costs under this rule only if the
offer is more favorable to the offeree than any prior offer.
167.3 Withdrawal, Acceptance, and Rejection of Offer.
(a) Withdrawal of offer. An offer can be withdrawn before it is accepted. Withdrawal is
effective when written notice of the withdrawal is served on the offeree. Once an unaccepted
offer has been withdrawn, it cannot be accepted or be the basis for awarding litigation costs
under this rule.
(b) Acceptance of offer. An offer that has not been withdrawn can be accepted only by written
notice served on the offeror by the deadline stated in the offer. When an offer is accepted,
the offeror or offeree may file the offer and acceptance and may move the court to enforce
the settlement.
(c) Rejection of offer. An offer that is not withdrawn or accepted is rejected. An offer may also
be rejected by written notice served on the offeror by the deadline stated in the offer.
(d) Objection to offer made before an offeror's joinder or designation of responsible third
party. An offer made before an offeror joins another party or designates a responsible third
party may not be the basis for awarding litigation costs under this rule against an offeree who
files an objection to the offer within 15 days after service of the offeror's pleading or
designation.
167.4 Awarding Litigation Costs.
(a) Generally. If a settlement offer made under this rule is rejected, and the judgment to be
awarded on the monetary claims covered by the offer is significantly less favorable to the
offeree than was the offer, the court must award the offeror litigation costs against the offeree
from the time the offer was rejected to the time of judgment.
(b) "Significantly less favorable" defined. A judgment award on monetary claims is
significantly less favorable than an offer to settle those claims if:
(1) the offeree is a claimant and the judgment would be less than 80 percent of the offer;
or
(2) the offeree is a defendant and the judgment would be more than 120 percent of the
offer.
(c) Litigation costs. Litigation costs are the expenditures actually made and the obligations
actually incurred - directly in relation to the claims covered by a settlement offer under this
rule - for the following:
(1) court costs;
(2) reasonable fees for not more than two testifying expert witnesses; and
(3) reasonable attorney fees.
(d) Limits on litigation costs. The litigation costs that may be awarded under this rule must not
exceed the following amount:
(1) the sum of the noneconomic damages, the exemplary or additional damages, and onehalf
of the economic damages to be awarded to the claimant in the judgment; minus
(2) the amount of any statutory or contractual liens in connection with the occurrences
or incidents giving rise to the claim.
(e) No double recovery permitted. A party who is entitled to recover attorney fees and costs
under another law may not recover those same attorney fees and costs as litigation costs
under this rule.
(f) Limitation on attorney fees and costs recovered by a party against whom litigation costs
are awarded. A party against whom litigation costs are awarded may not recover attorney
fees and costs under another law incurred after the date the party rejected the settlement offer
made the basis of the award.
(g) Litigation costs to be awarded to defendant as a setoff. Litigation costs awarded to a
defendant must be made a setoff to the claimant's judgment against the defendant.
167.5 Procedures.
(a) Modification of time limits. On motion, and for good cause shown, the court may -- by
written order made before commencement of trial on the merits -- modify the time limits for
filing a declaration under Rule 167.2(a) or for making an offer.
(b) Discovery permitted. On motion, and for good cause shown, a party against whom
litigation costs are to be awarded may conduct discovery to ascertain the reasonableness of
the costs requested. If the court determines the costs to be reasonable, it must order the party
requesting discovery to pay all attorney fees and expenses incurred by other parties in
responding to such discovery.
(c) Hearing required. The court must, upon request, conduct a hearing on a request for an
award of litigation costs, at which the affected parties may present evidence.
167.6 Evidence Not Admissible.
Evidence relating to an offer made under this rule is not admissible except for purposes of enforcing
a settlement agreement or obtaining litigation costs. The provisions of this rule may not be made
known to the jury by any means.
167.7 Other Settlement Offers Not Affected.
This rule does not apply to any offer made in a mediation or arbitration proceeding. A settlement
offer not made under this rule, or made in an action to which this rule does not apply, cannot be the
basis for awarding litigation costs under this rule. This rule does not limit or affect a party's right to
make a settlement offer that does not comply with this rule, or in an action to which this rule does
not apply.
RULE 171. MASTER IN CHANCERY
The court may, in exceptional cases, for good cause appoint a master in chancery, who shall be a
citizen of this State, and not an attorney for either party to the action, nor related to either party, who
shall perform all of the duties required of him by the court, and shall be under orders of the court,
and have such power as the master of chancery has in a court of equity.
The order of references to the master may specify or limit his powers, and may direct him to report
only upon particular issues, or to do or perform particular acts, or to receive and report evidence only
and may fix the time and place for beginning and closing the hearings, and for the filing of the
master's report. Subject to the limitations and specifications stated in the order, the master has and
shall exercise the power to regulate all proceedings in every hearing before him and to do all acts and
take all measures necessary or proper for the efficient performance of his duties under the order. He
may require the production before him of evidence upon all matters embraced in the reference,
including the production of books, papers, vouchers, documents and other writings applicable
thereto. He may rule upon the admissibility of evidence, unless otherwise directed by the order of
reference and has the authority to put witnesses on oath, and may, himself, examine them, and may
call the parties to the action and examine them upon oath. When a party so requests, the master shall
make a record of the evidence offered and excluded in the same manner as provided for a court
sitting in the trial of a case.
The clerk of the court shall forthwith furnish the master with a copy of the order of reference.
The parties may procure the attendance of witnesses before the master by the issuance and service
of process as provided by law and these rules.
The court may confirm, modify, correct, reject, reverse or recommit the report, after it is filed, as the
court may deem proper and necessary in the particular circumstances of the case. The court shall
award reasonable compensation to such master to be taxed as costs of suit.
RULE 172. AUDIT
When an investigation of accounts or examination of vouchers appears necessary for the purpose of
justice between the parties to any suit, the court shall appoint an auditor or auditors to state the
accounts between the parties and to make report thereof to the court as soon as possible. The auditor
shall verify his report by his affidavit stating that he has carefully examined the state of the account
between the parties, and that his report contains a true statement thereof, so far as the same has come
within his knowledge. Exceptions to such report or of any item thereof must be filed within 30 days
of the filing of such report. The court shall award reasonable compensation to such auditor to be
taxed as costs of suit.
RULE 173. GUARDIAN AD LITEM
173.1 Appointment Governed by Statute or Other Rule.
This rule does not apply to an appointment of a guardian ad litem governed by statute or other
rules.
173.2 Appointment of Guardian ad Litem.
(a) When Appointment Required or Prohibited. The court must appoint a guardian ad litem
for a party represented by a next friend or guardian only if:
(1) the next friend or guardian appears to the court to have an interest adverse to the
party, or
(2) the parties agree.
(b) Appointment of the Same Person for Different Parties. The court must appoint the same
guardian ad litem for similarly situated parties unless the court finds that the appointment of
different guardians ad litem is necessary.
173.3 Procedure.
(a) Motion Permitted but not Required. The court may appoint a guardian ad litem on the
motion of any party or on its own initiative.
(b) Written Order Required. An appointment must be made by written order.
(c) Objection. Any party may object to the appointment of a guardian ad litem.
173.4 Role of Guardian ad Litem.
(a) Court Officer and Advisor. A guardian ad litem acts as an officer and advisor to the court.
(b) Determination of Adverse Interest. A guardian ad litem must determine and advise the
court whether a party's next friend or guardian has an interest adverse to the party.
(c) When Settlement Proposed. When an offer has been made to settle the claim of a party
represented by a next friend or guardian, a guardian ad litem has the limited duty to
determine and advise the court whether the settlement is in the party's best interest.
(d) Participation in Litigation Limited. A guardian ad litem:
(1) may participate in mediation or a similar proceeding to attempt to reach a settlement;
(2) must participate in any proceeding before the court whose purpose is to determine
whether a party's next friend or guardian has an interest adverse to the party, or
whether a settlement of the party's claim is in the party's best interest;
(3) must not participate in discovery, trial, or any other part of the litigation unless:
(A) further participation in necessary to protect the party's interest that is adverse
to the next friend's or guardian's, and
(B) the participation is directed by the court in a written order stating sufficient
reasons.
173.5 Communications Privileged.
Communications between the guardian ad litem and the party, the next friend or guardian, or their
attorney are privileged as if the guardian ad litem were the attorney for the party.
173.6 Compensation.
(a) Amount. If a guardian ad litem requests compensation, he or she may be reimbursed for
reasonable and necessary expenses incurred and may be paid a reasonable hourly fee for
necessary services performed.
(b) Procedure. At the conclusion of the appointment, a guardian ad litem must file an
application for compensation. The application must be verified and must detail the basis for
the compensation requested. Unless all parties agree to the application, the court must
conduct an evidentiary hearing to determine the total amount of fees and expenses that are
reasonable and necessary. In making this determination, the court must not consider
compensation as a percentage of any judgment or settlement.
(c) Taxation as Costs. The court may tax a guardian ad litem's compensation as costs of court.
(d) Other Benefit Prohibited. A guardian ad litem may not receive, directly or indirectly,
anything of value in consideration of the appointment other than as provided by this rule.
173.7 Review.
(a) Right of Appeal. Any party may seek mandamus review of an order appointing a guardian
ad litem or directing a guardian ad litem's participation in the litigation. Any party and a
guardian ad litem may appeal an order awarding the guardian ad litem compensation.
(b) Severance. On motion of the guardian ad litem or any party, the court must sever any order
awaiting a guardian ad litem compensation to create a final, appealable order.
(c) No Effect on Finality of Settlement of Judgment. Appellate proceedings to review an
order pertaining to a guardian ad litem do not affect the finality of a settlement or judgment.
RULE 174. CONSOLIDATION; SEPARATE TRIALS
(a) Consolidation. When actions involving a common question of law or fact are pending
before the court, it may order a joint hearing or trial of any or all the matters in issue in the
actions; it may order all the actions consolidated; and it may make such orders concerning
proceedings therein as may tend to avoid unnecessary costs or delay.
(b) Separate Trials. The court in furtherance of convenience or to avoid prejudice may order
a separate trial of any claim, cross-claim, counterclaim, or third-party claim, or of any
separate issue or of any number of claims, cross-claims, counterclaims, third-party claims,
or issues.
RULE 175. ISSUE OF LAW AND DILATORY PLEAS
When a case is called for trial in which there has been no pretrial hearing as provided by Rule 166,
the issues of law arising on the pleadings, all pleas in abatement and other dilatory pleas remaining
indisposed of shall be determined; and it shall be no cause for postponement of a trial of the issues
of law that a party is not prepared to try the issues of fact.
SECTION 9. EVIDENCE AND DISCOVERY
A. EVIDENCE
RULE 176. SUBPOENAS
176.1 Form.
Every subpoena must be issued in the name of "The State of Texas" and must:
(a) state the style of the suit and its cause number;
(b) state the court in which the suit is pending;
(c) state the date on which the subpoena is issued;
(d) identify the person to whom the subpoena is directed;
(e) state the time, place, and nature of the action required by the person to whom the
subpoena is directed, as provided in Rule 176.2;
(f) identify the party at whose instance the subpoena is issued, and the party's attorney
of record, if any;
(g) state the text of Rule 176.8(a); and
(h) be signed by the person issuing the subpoena.
176.2 Required Actions.
A subpoena must command the person to whom it is directed to do either or both of the following:
(a) attend and give testimony at a deposition, hearing, or trial;
(b) produce and permit inspection and copying of designated documents or tangible
things in the possession, custody, or control of that person.
176.3 Limitations.
(a) Range. A person may not be required by subpoena to appear or produce documents or other
things in a county that is more than 150 miles from where the person resides or is served.
However, a person whose appearance or production at a deposition may be compelled by
notice alone under Rules 199.3 or 200.2 may be required to appear and produce documents
or other things at any location permitted under Rules 199.2(b)(2).
(b) Use for discovery. A subpoena may not be used for discovery to an extent, in a manner, or
at a time other than as provided by the rules governing discovery.
176.4 Who May Issue.
A subpoena may be issued by:
(a) the clerk of the appropriate district, county, or justice court, who must provide the
party requesting the subpoena with an original and a copy for each witness to be
completed by the party;
(b) an attorney authorized to practice in the State of Texas, as an officer of the court; or
(c) an officer authorized to take depositions in this State, who must issue the subpoena
immediately on a request accompanied by a notice to take a deposition under Rules
199 or 200, or a notice under Rule 205.3, and who may also serve the notice with the
subpoena.
176.5 Service.
(a) Manner of service. A subpoena may be served at any place within the State of Texas by any
sheriff or constable of the State of Texas, or any person who is not a party and is 18 years of
age or older. A subpoena must be served by delivering a copy to the witness and tendering
to that person any fees required by law. If the witness is a party and is represented by an
attorney of record in the proceeding, the subpoena may be served on the witness's attorney
of record.
(b) Proof of service. Proof of service must be made by filing either:
(1) the witness's signed written memorandum attached to the subpoena showing that the
witness accepted the subpoena; or
(2) a statement by the person who made the service stating the date, time, and manner
of service, and the name of the person served.
176.6 Response.
(a) Compliance required. Except as provided in this subdivision, a person served with a
subpoena must comply with the command stated therein unless discharged by the court or
by the party summoning such witness. A person commanded to appear and give testimony
must remain at the place of deposition, hearing, or trial from day to day until discharged by
the court or by the party summoning the witness.
(b) Organizations. If a subpoena commanding testimony is directed to a corporation,
partnership, association, governmental agency, or other organization, and the matters on
which examination is requested are described with reasonable particularity, the organization
must designate one or more persons to testify on its behalf as to matters known or reasonably
available to the organization.
(c) Production of documents or tangible things. A person commanded to produce documents
or tangible things need not appear in person at the time and place of production unless the
person is also commanded to attend and give testimony, either in the same subpoena or a
separate one. A person must produce documents as they are kept in the usual course of
business or must organize and label them to correspond with the categories in the demand.
A person may withhold material or information claimed to be privileged but must comply
with Rule 193.3. A nonparty's production of a document authenticates the document for use
against the nonparty to the same extent as a party's production of a document is authenticated
for use against the party under Rule 193.7.
(d) Objections. A person commanded to produce and permit inspection or copying of
designated documents and things may serve on the party requesting issuance of the subpoena
- before the time specified for compliance - written objections to producing any or all of the
designated materials. A person need not comply with the part of a subpoena to which
objection is made as provided in this paragraph unless ordered to do so by the court. The
party requesting the subpoena may move for such an order at any time after an objection is
made.
(e) Protective orders. A person commanded to appear at a deposition, hearing, or trial, or to
produce and permit inspection and copying of designated documents and things, and any
other person affected by the subpoena, may move for a protective order under Rule 192.6(b)-
-before the time specified for compliance--either in the court in which the action is pending
or in a district court in the county where the subpoena was served. The person must serve the
motion on all parties in accordance with Rule 21a. A person need not comply with the part
of a subpoena from which protection is sought under this paragraph unless ordered to do so
by the court. The party requesting the subpoena may seek such an order at any time after the
motion for protection is filed.
(f) Trial subpoenas. A person commanded to attend and give testimony, or to produce
documents or things, at a hearing or trial, may object or move for protective order before the
court at the time and place specified for compliance, rather than under paragraphs (d) and (e).
176.7 Protection of Person from Undue Burden and Expense.
A party causing a subpoena to issue must take reasonable steps to avoid imposing undue burden or
expense on the person served. In ruling on objections or motions for protection, the court must
provide a person served with a subpoena an adequate time for compliance, protection from
disclosure of privileged material or information, and protection from undue burden or expense. The
court may impose reasonable conditions on compliance with a subpoena, including compensating
the witness for undue hardship.
176.8 Enforcement of Subpoena.
(a) Contempt. Failure by any person without adequate excuse to obey a subpoena served upon
that person may be deemed a contempt of the court from which the subpoena is issued or a
district court in the county in which the subpoena is served, and may be punished by fine or
confinement, or both.
(b) Proof of payment of fees required for fine or attachment. A fine may not be imposed,
nor a person served with a subpoena attached, for failure to comply with a subpoena without
proof by affidavit of the party requesting the subpoena or the party's attorney of record that
all fees due the witness by law were paid or tendered.
RULE 180. REFUSAL TO TESTIFY
Any witness refusing to give evidence may be committed to jail, there to remain without bail until
such witness shall consent to give evidence.
RULE 181. PARTY AS WITNESS
Either party to a suit may examine the opposing party as a witness, and shall have the same process
to compel his attendance as in the case of any other witness.
RULE 183. INTERPRETERS
The court may appoint an interpreter of its own selection and may fix the interpreter's reasonable
compensation. The compensation shall be paid out of funds provided by law or by one or more of
the parties as the court may direct, and may be taxed ultimately as costs, in the discretion of the
court.
RULE 185. SUIT ON ACCOUNT
When any action or defense is founded upon an open account or other claim for goods, wares and
merchandise, including any claim for a liquidated money demand based upon written contract or
founded on business dealings between the parties, or is for personal service rendered, or labor done
or labor or materials furnished, on which a systematic record has been kept, and is supported by the
affidavit of the party, his agent or attorney taken before some officer authorized to administer oaths,
to the effect that such claim is, within the knowledge of affiant, just and true, that it is due, and that
all just and lawful offsets, payments and credits have been allowed, the same shall be taken as prima
facie evidence thereof, unless the party resisting such claim shall file a written denial, under oath.
A party resisting such a sworn claim shall comply with the rules of pleading as are required in any
other kind of suit, provided, however, that if he does not timely file a written denial, under oath, he
shall not be permitted to deny the claim, or any item therein, as the case may be. No particularization
or description of the nature of the component parts of the account or claim is necessary unless the
trial court sustains special exceptions to the pleadings.
SECTION 9. EVIDENCE AND DISCOVERY
B. Discovery
RULE 190. DISCOVERY LIMITATIONS
190.1 Discovery Control Plan Required.
Every case must be governed by a discovery control plan as provided in this Rule. A plaintiff must
allege in the first numbered paragraph of the original petition whether discovery is intended to be
conducted under Level 1, 2, or 3 of this Rule.
190.2 Discovery Control Plan - Suits Involving $50,000 or Less (Level 1)
(a) Application. This subdivision applies to:
(1) any suit in which all plaintiffs affirmatively plead that they seek only monetary relief
aggregating $ 50,000 or less, excluding costs, pre-judgment interest and attorneys'
fees, and
(2) any suit for divorce 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.
(b) Exceptions. This subdivision does not apply if:
(1) the parties agree that Rule 190.3 should apply;
(2) the court orders a discovery control plan under Rule 190.4; or
(3) any party files a pleading or an amended or supplemental pleading that seeks relief
other than that to which this subdivision applies.
A pleading, amended pleading (including trial amendment), or supplemental pleading that renders
this subdivision no longer applicable may not be filed without leave of court less than 45 days before
the date set for trial. Leave may be granted only if good cause for filing the pleading outweighs any
prejudice to an opposing party.
(c) Limitations. Discovery is subject to the limitations provided elsewhere in these rules and
to the following additional limitations:
(1) Discovery period. All discovery must be conducted during the discovery period,
which begins when the suit is filed and continues until 30 days before the date set for
trial.
(2) Total time for oral depositions. Each party may have no more than six hours in
total to examine and cross-examine all witnesses in oral depositions. The parties may
agree to expand this limit up to ten hours in total, but not more except by court order.
The court may modify the deposition hours so that no party is given unfair advantage.
(3) Interrogatories. Any party may serve on any other party no more than 25 written
interrogatories, excluding interrogatories asking a party only to identify or
authenticate specific documents. Each discrete subpart of an interrogatory is
considered a separate interrogatory.
(d) Reopening discovery. When the filing of a pleading or an amended or supplemental
pleading renders this subdivision no longer applicable, the discovery period reopens, and
discovery must be completed within the limitations provided in Rules 190.3 or 190.4,
whichever is applicable. Any person previously deposed may be redeposed. On motion of
any party, the court should continue the trial date if necessary to permit completion of
discovery.
190.3 Discovery Control Plan - By Rule (Level 2)
(a) Application. Unless a suit is governed by a discovery control plan under Rules 190.2 or
190.4, discovery must be conducted in accordance with this subdivision.
(b) Limitations. Discovery is subject to the limitations provided elsewhere in these rules and
to the following additional limitations:
(1) Discovery period. All discovery must be conducted during the discovery period,
which begins when suit is filed and continues until:
(A) 30 days before the date set for trial, in cases under the Family Code; or
(B) in other cases, the earlier of
(i) 30 days before the date set for trial, or
(ii) nine months after the earlier of the date of the first oral deposition or
the due date of the first response to written discovery.
(2) Total time for oral depositions. Each side may have no more than 50 hours in oral
depositions to examine and cross-examine parties on the opposing side, experts
designated by those parties, and persons who are subject to those parties' control.
"Side" refers to all the litigants with generally common interests in the litigation. 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 court
may modify the deposition hours and must do so when a side or party would be given
unfair advantage.
(3) Interrogatories. Any party may serve on any other party no more than 25 written
interrogatories, excluding interrogatories asking a party only to identify or
authenticate specific documents. Each discrete subpart of an interrogatory is
considered a separate interrogatory.
190.4 Discovery Control Plan - By Order (Level 3)
(a) Application. 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 parties may submit an agreed order to the court for
its consideration. The court should act on a party's motion or agreed order under this
subdivision as promptly as reasonably possible.
(b) Limitations. The discovery control plan ordered by the court may address any issue
concerning discovery or the matters listed in Rule 166, and may change any limitation on the
time for or amount of discovery set forth in these rules. The discovery limitations of Rule
190.2, if applicable, or otherwise of Rule 190.3 apply unless specifically changed in the
discovery control plan ordered by the court. The plan must include:
(1) a date for trial or for a conference to determine a trial setting;
(2) a discovery period during which either all discovery must be conducted or all
discovery requests must be sent, for the entire case or an appropriate phase of it;
(3) appropriate limits on the amount of discovery; and
(4) deadlines for joining additional parties, amending or supplementing pleadings, and
designating expert witnesses.
190.5 Modification of Discovery Control Plan
The court may modify a discovery control plan at any time and must do so when the interest of
justice requires. The court must allow additional discovery:
(a) related to new, amended or supplemental pleadings, or new information disclosed in
a discovery response or in an amended or supplemental response, if:
(1) the pleadings or responses were made after the deadline for completion of
discovery or so nearly before that deadline that an adverse party does not
have an adequate opportunity to conduct discovery related to the new matters,
and
(2) the adverse party would be unfairly prejudiced without such additional discovery;
(b) regarding matters that have changed materially after the discovery cutoff if trial is set
or postponed so that the trial date is more than three months after the discovery
period ends.
190.6 Certain Types of Discovery Excepted
This rule's limitations on discovery do not apply to or include discovery conducted under Rule 202
("Depositions Before Suit or to Investigate Claims"), or Rule 621a ("Discovery and Enforcement of
Judgment"). But Rule 202 cannot be used to circumvent the limitations of this rule.
RULE 191. MODIFYING DISCOVERY PROCEDURES AND LIMITATIONS;
CONFERENCE REQUIREMENT; SIGNING DISCLOSURES;
DISCOVERY REQUESTS, RESPONSES, AND OBJECTIONS;
FILING REQUIREMENTS
191.1 Modification of Procedures
Except where specifically prohibited, the procedures and limitations set forth in the rules pertaining
to discovery may be modified in any suit by the agreement of the parties or by court order for good
cause. An agreement of the parties is enforceable if it complies with Rule 11 or, as it affects an oral
deposition, if it is made a part of the record of the deposition.
191.2 Conference.
Parties and their attorneys are expected to cooperate in discovery and to make any agreements
reasonably necessary for the efficient disposition of the case. All discovery motions or requests for
hearings relating to discovery must contain a certificate by the party filing the motion or request that
a reasonable effort has been made to resolve the dispute without the necessity of court intervention
and the effort failed.
191.3 Signing of Disclosures, Discovery Requests, Notices, Responses, and Objections
(a) Signature required. Every disclosure, discovery request, notice, response, and objection
must be signed:
(1) by an attorney, if the party is represented by an attorney, and must show the attorney's
State Bar of Texas identification number, address, telephone number, and fax
number, if any; or
(2) by the party, if the party is not represented by an attorney, and must show the party's
address, telephone number, and fax number, if any.
(b) Effect of signature on disclosure. The signature of an attorney or party on a disclosure
constitutes a certification that to the best of the signer's knowledge, information, and belief,
formed after a reasonable inquiry, the disclosure is complete and correct as of the time it is
made.
(c) Effect of signature on discovery request, notice, response, or objection. The signature
of an attorney or party on a discovery request, notice, response, or objection constitutes a
certification that to the best of the signer's knowledge, information, and belief, formed after
a reasonable inquiry, the request, notice, response, or objection:
(1) is consistent with the rules of civil procedure and these discovery rules and warranted
by existing law or a good faith argument for the extension, modification, or reversal
of existing law;
(2) has a good faith factual basis;
(3) is not interposed for any improper purpose, such as to harass or to cause unnecessary
delay or needless increase in the cost of litigation; and
(4) is not unreasonable or unduly burdensome or expensive, given the needs of the case,
the discovery already had in the case, the amount in controversy, and the importance
of the issues at stake in the litigation.
(d) Effect of failure to sign. If a request, notice, response, or objection is not signed, it must
be stricken unless it is signed promptly after the omission is called to the attention of the
party making the request, notice, response, or objection. A party is not required to take any
action with respect to a request or notice that is not signed.
(e) Sanctions. If the certification is false without substantial justification, the court may, upon
motion or its own initiative, impose on the person who made the certification, or the party
on whose behalf the request, notice, response, or objection was made, or both, an appropriate
sanction as for a frivolous pleading or motion under Chapter 10 of the Civil Practice and
Remedies Code.
191.4 Filing of Discovery Materials.
(a) Discovery materials not to be filed. The following discovery materials must not be filed:
(1) discovery requests, deposition notices, and subpoenas required to be served only on
parties;
(2) responses and objections to discovery requests and deposition notices, regardless on
whom the requests or notices were served;
(3) documents and tangible things produced in discovery; and
(4) statements prepared in compliance with Rule 193.3(b) or (d).
(b) Discovery materials to be filed. The following discovery materials must be filed:
(1) discovery requests, deposition notices, and subpoenas required to be served on
nonparties;
(2) motions and responses to motions pertaining to discovery matters; and
(3) agreements concerning discovery matters, to the extent necessary to comply with
Rule 11.
(c) Exceptions. Notwithstanding paragraph (a):
(1) the court may order discovery materials to be filed;
(2) a person may file discovery materials in support of or in opposition to a motion or for
other use in a court proceeding; and
(3) a person may file discovery materials necessary for a proceeding in an appellate
court.
(d) Retention requirement for persons. 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 case and any related appellate proceedings begun within six months after
judgment is signed, unless otherwise provided by the trial court.
(e) Retention requirement for courts. The clerk of the court shall retain and dispose of
deposition transcripts and depositions upon written questions as directed by the Supreme
Court.
191.5 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.
RULE 192. PERMISSIBLE DISCOVERY: FORMS AND SCOPE;
WORK PRODUCT; PROTECTIVE ORDERS; DEFINITIONS
192.1 Forms of Discovery.
Permissible forms of discovery are:
(a) requests for disclosure;
(b) requests for production and inspection of documents and tangible things;
(c) requests and motions for entry upon and examination of real property;
(d) interrogatories to a party;
(e) requests for admission;
(f) oral or written depositions; and
(g) motions for mental or physical examinations.
192.2 Sequence of Discovery.
The permissible forms of discovery may be combined in the same document and may be taken in any
order or sequence.
192.3 Scope of Discovery.
(a) Generally. In general, a party may obtain discovery regarding any matter that is not
privileged and is relevant to the subject matter of the pending action, whether it relates to the
claim or defense of the party seeking discovery or the claim or defense of any other party. It
is not a ground for objection that the information sought will be inadmissible at trial if the
information sought appears reasonably calculated to lead to the discovery of admissible evidence.
(b) Documents and tangible things. A party may obtain discovery of the existence,
description, nature, custody, condition, location, and contents of documents and tangible
things (including papers, books, accounts, drawings, graphs, charts, photographs, electronic
or videotape recordings, data, and data compilations) that constitute or contain matters
relevant to the subject matter of the action. A person is required to produce a document or
tangible thing that is within the person's possession, custody, or control.
(c) Persons with knowledge of relevant facts. A party may obtain discovery of the name,
address, and telephone number of persons having knowledge of relevant facts, and a brief
statement of each identified person's connection with the case. A person has knowledge of
relevant facts when that person has or may have knowledge of any discoverable matter. The
person need not have admissible information or personal knowledge of the facts. An expert
is "a person with knowledge of relevant facts" only if that knowledge was obtained first-hand
or if it was not obtained in preparation for trial or in anticipation of litigation.
(d) Trial witnesses. A party may obtain 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 impeaching witnesses the necessity of whose testimony cannot reasonably be
anticipated before trial.
(e) Testifying and consulting experts. The identity, mental impressions, and opinions of a
consulting expert whose mental impressions and opinions have not been reviewed by a
testifying expert are not discoverable. A party may discover the following information
regarding a testifying expert or regarding a consulting expert whose mental impressions or
opinions have been reviewed by a testifying expert:
(1) the expert's name, address, and telephone number;
(2) the subject matter on which a testifying expert will testify;
(3) 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 the
discovery is sought, regardless of when and how the factual information was
acquired;
(4) 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;
(5) any bias of the witness;
(6) 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;
(7) the expert's current resume and bibliography.
(f) Indemnity and insuring agreements. Except as otherwise provided by law, a party may
obtain discovery of the existence and contents of any indemnity or insurance agreement
under which any person may be liable to satisfy part or all of a judgment rendered in the
action or to indemnify or reimburse for payments made to satisfy the judgment. Information
concerning the indemnity or insurance agreement is not by reason of disclosure admissible
in evidence at trial.
(g) Settlement agreements. A party may obtain discovery of the existence and contents of any
relevant portions of a settlement agreement. Information concerning a settlement agreement
is not by reason of disclosure admissible in evidence at trial.
(h) Statements of persons with knowledge of relevant facts. A party may obtain discovery
of the statement of any person with knowledge of relevant facts--a "witness statement"--
regardless of when the statement was made. A witness statement is (1) a written statement
signed or otherwise adopted or approved in writing by the person making it, or (2) a
stenographic, mechanical, electrical, or other type of recording of a witness's oral statement,
or any substantially verbatim transcription of such a recording. Notes taken during a
conversation or interview with a witness are not a witness statement. Any person may obtain,
upon written request, his or her own statement concerning the lawsuit, which is in the
possession, custody or control of any party.
(i) Potential parties. A party may obtain discovery of the name, address, and telephone number
of any potential party.
(j) Contentions. A party may obtain discovery of any other party's legal contentions and the
factual bases for those contentions.
192.4 Limitations on Scope of Discovery.
The discovery methods permitted by these rules should be limited by the court if it determines, on
motion or on its own initiative and on reasonable notice, that:
(a) the discovery sought is unreasonably cumulative or duplicative, or is obtainable from
some other source that is more convenient, less burdensome, or less expensive; or
(b) the burden or expense of the proposed discovery outweighs its likely benefit, taking
into account the needs of the case, the amount in controversy, the parties' resources,
the importance of the issues at stake in the litigation, and the importance of the
proposed discovery in resolving the issues.
192.5 Work Product.
(a) 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
(2) 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.
(b) Protection of work product.
(1) Protection of core work product--attorney mental processes. 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.
(2) Protection of other work product. 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.
(3) Incidental disclosure of attorney mental processes. It is not a violation of
subparagraph (1) if disclosure ordered pursuant to subparagraph (2) incidentally
discloses by inference attorney mental processes otherwise protected under
subparagraph (1).
(4) Limiting disclosure of mental processes. If a court orders discovery of work
product pursuant to subparagraph (2), the court must--insofar as possible--protect
against disclosure of the mental impressions, opinions, conclusions, or legal theories
not otherwise discoverable.
(c) Exceptions. Even if made or prepared in anticipation of litigation or for trial, the following
is not work product protected from discovery:
(1) information discoverable under Rule 192.3 concerning experts, trial witnesses,
witness statements, and contentions;
(2) trial exhibits ordered disclosed under Rule 166 or Rule 190.4;
(3) the name, address, and telephone number of any potential party or any person with
knowledge of relevant facts;
(4) any photograph or electronic image of underlying facts (e.g., a photograph of the
accident scene) or a photograph or electronic image of any sort that a party intends
to offer into evidence; and
(5) any work product created under circumstances within an exception to the attorneyclient
privilege in Rule 503(d) of the Rules of Evidence.
(d) Privilege. For purposes of these rules, an assertion that material or information is work
product is an assertion of privilege.
192.6 Protective Order.
(a) Motion. A person from whom discovery is sought, and any other person affected by the
discovery request, may move within the time permitted for response to the discovery request
for an order protecting that person from the discovery sought. A person should not move for
protection when an objection to written discovery or an assertion of privilege is appropriate,
but a motion does not waive the objection or assertion of privilege. If a person seeks
protection regarding the time or place of discovery, the person must state a reasonable time
and place for discovery with which the person will comply. A person must comply with a
request to the extent protection is not sought unless it is unreasonable under the
circumstances to do so before obtaining a ruling on the motion.
(b) Order. To protect the movant from undue burden, unnecessary expense, harassment,
annoyance, or invasion of personal, constitutional, or property rights, the court may make any
order in the interest of justice and may - among other things - order that:
(1) the requested discovery not be sought in whole or in part;
(2) the extent or subject matter of discovery be limited;
(3) the discovery not be undertaken at the time or place specified;
(4) the discovery be undertaken only by such method or upon such terms and conditions
or at the time and place directed by the court;
(5) the results of discovery be sealed or otherwise protected, subject to the provisions of
Rule 76a.
192.7 Definitions.
As used in these rules
(a) Written discovery means requests for disclosure, requests for production and
inspection of documents and tangible things, requests for entry onto property,
interrogatories, and requests for admission.
(b) Possession, custody, or control of an item means that the person either has physical
possession of the item or has a right to possession of the item that is equal or superior
to the person who has physical possession of the item.
(c) A testifying expert is an expert who may be called to testify as an expert witness at
trial.
(d) A consulting expert is an expert who has been consulted, retained, or specially
employed by a party in anticipation of litigation or in preparation for trial, but who
is not a testifying expert.
RULE 193. WRITTEN DISCOVERY: RESPONSE; OBJECTION;
ASSERTION OF PRIVILEGE; SUPPLEMENTATION AND AMENDMENT;
FAILURE TO TIMELY RESPOND; PRESUMPTION OF AUTHENTICITY
193.1 Responding to Written Discovery; Duty to Make Complete Response.
A party must respond to written discovery in writing within the time provided by court order or these
rules. When responding to written discovery, a party must make a complete response, based on all
information reasonably available to the responding party or its attorney at the time the response is
made. The responding party's answers, objections, and other responses must be preceded by the
request to which they apply.
193.2 Objecting to Written Discovery
(a) Form and time for objections. A party must make any objection to written discovery in
writing - either in the response or in a separate document - within the time for response. The
party must state specifically the legal or factual basis for the objection and the extent to
which the party is refusing to comply with the request.
(b) Duty to respond when partially objecting; objection to time or place of production. A
party must comply with as much of the request to which the party has made no objection
unless it is unreasonable under the circumstances to do so before obtaining a ruling on the
objection. 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.
(c) Good faith basis for objection. A party may object to written discovery only if a good faith
factual and legal basis for the objection exists at the time the objection is made.
(d) Amendment. An objection or response to written discovery may be amended or
supplemented to state an objection or basis that, at the time the objection or response initially
was made, either was inapplicable or was unknown after reasonable inquiry.
(e) Waiver of objection. An objection that is not made within the time required, or that is
obscured by numerous unfounded objections, is waived unless the court excuses the waiver
for good cause shown.
(f) No objection to preserve privilege. 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.
193.3 Asserting a Privilege
A party may preserve a privilege from written discovery in accordance with this subdivision.
(a) Withholding privileged material or information. A party who claims that material
or information responsive to written discovery is privileged may withhold the
privileged material or information from the response. The party must state--in the
response (or an amended or supplemental response) or in a separate document--that:
(1) information or material responsive to the request has been withheld,
(2) the request to which the information or material relates, and
(3) the privilege or privileges asserted.
(b) Description of withheld material or information. After receiving a response
indicating that material or information has been withheld from production, the party
seeking discovery may serve a written request that the withholding party identify the
information and material withheld. Within 15 days of service of that request, the
withholding party must serve a response that:
(1) describes the information or materials withheld that, without revealing the
privileged information itself or otherwise waiving the privilege, enables other
parties to assess the applicability of the privilege, and
(2) asserts a specific privilege for each item or group of items withheld.
(c) Exemption. Without complying with paragraphs (a) and (b), a party may withhold
a privileged communication to or from a lawyer or lawyer's representative or a
privileged document of a lawyer or lawyer's representative
(1) created or made from the point at which a party consults a lawyer with a view
to obtaining professional legal services from the lawyer in the prosecution or
defense of a specific claim in the litigation in which discovery is requested,
and
(2) concerning the litigation in which the discovery is requested.
(d) Privilege not waived by production. A party who produces material or information
without intending to waive a claim of privilege does not waive that claim under these
rules or the Rules of Evidence if - within ten days or a shorter time ordered by the
court, after the producing party actually discovers that such production was made -
the producing party amends 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.
193.4 Hearing and Ruling on Objections and Assertions of Privilege.
(a) Hearing. Any party may at any reasonable time request a hearing on an objection or claim
of privilege asserted under this rule. The party making the objection or asserting the privilege
must present any evidence necessary to support the objection or privilege. The evidence may
be testimony presented at the hearing or affidavits served at least seven days before the
hearing or at such other reasonable time as the court permits. If the court determines that an
in camera review of some or all of the requested discovery is necessary, that material or
information must be segregated and produced to the court in a sealed wrapper within a
reasonable time following the hearing.
(b) Ruling. To the extent the court sustains the objection or claim of privilege, the responding
party has no further duty to respond to that request. To the extent the court overrules the
objection or claim of privilege, the responding party must produce the requested material or
information within 30 days after the court's ruling or at such time as the court orders. A party
need not request a ruling on that party's own objection or assertion of privilege to preserve
the objection or privilege.
(c) Use of material or information withheld under claim of privilege. A party may not use--
at any hearing or trial--material or information withheld from discovery under a claim of
privilege, including a claim sustained by the court, without timely amending or
supplementing the party's response to that discovery.
193.5 Amending or Supplementing Responses to Written Discovery.
(a) Duty to amend or supplement. If a party learns that the party's response to written
discovery was incomplete or incorrect when made, or, although complete and correct when
made, is no longer complete and correct, the party must amend or supplement the response:
(1) to the extent that the written discovery sought the identification of persons with
knowledge of relevant facts, trial witnesses, or expert witnesses, and
(2) to the extent that the written discovery sought other information, unless the additional
or corrective information has been made known to the other parties in writing, on the
record at a deposition, or through other discovery responses.
(b) Time and form of amended or supplemental response. An amended or supplemental
response must be made reasonably promptly after the party discovers the necessity for such
a response. Except as otherwise provided by these rules, it is presumed that an amended or
supplemental response made less than 30 days before trial was not made reasonably
promptly. An amended or supplemental response must be in the same form as the initial
response and must be verified by the party if the original response was required to be verified
by the party, but the failure to comply with this requirement does not make the amended or
supplemental response untimely unless the party making the response refuses to correct the
defect within a reasonable time after it is pointed out.
193.6 Failing to Timely Respond - Effect on Trial
(a) Exclusion of evidence and exceptions. A party who fails to make, amend, or supplement
a discovery response in a timely manner may not introduce in evidence the material or
information that was not timely disclosed, or offer the testimony of a witness (other than a
named party) who was not timely identified, unless the court finds that:
(1) there was good cause for the failure to timely make, amend, or supplement the
discovery response; or
(2) the failure to timely make, amend, or supplement the discovery response will not
unfairly surprise or unfairly prejudice the other parties.
(b) Burden of establishing exception. The burden of establishing good cause or the lack of
unfair surprise or unfair prejudice is on the party seeking to introduce the evidence or call the
witness. A finding of good cause or of the lack of unfair surprise or unfair prejudice must be
supported by the record.
(c) Continuance. Even if the party seeking to introduce the evidence or call the witness fails
to carry the burden under paragraph (b), the court may grant a continuance or temporarily
postpone the trial to allow a response to be made, amended, or supplemented, and to allow
opposing parties to conduct discovery regarding any new information presented by that
response.
193.7 Production of Documents Self-Authenticating
A party's production of a document in response to written discovery authenticates the document for
use against that party in any pretrial proceeding or at trial unless - within ten days or a longer or
shorter time ordered by the court, after the producing party has actual notice that the document will
be used - the party objects to the authenticity of the document, or any part of it, stating the specific
basis for objection. An objection must be either on the record or in writing and must have a good
faith factual and legal basis. An objection made to the authenticity of only part of a document does
not affect the authenticity of the remainder. If objection is made, the party attempting to use the
document should be given a reasonable opportunity to establish its authenticity.
RULE 194. REQUESTS FOR DISCLOSURE
194.1 Request.
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 -
the following request: "Pursuant to Rule 194, you are requested to disclose, within 30 days of service
of this request, the information or material described in Rule [state rule, e.g., 194.2, or 194.2(a), (c),
and (f), or 194.2(d)-(g)]."
194.2 Content.
A party may request disclosure of any or all of the following:
(a) the correct names of the parties to the lawsuit;
(b) the name, address, and telephone number of any potential parties;
(c) the legal theories and, in general, the factual bases of the responding party's claims
or defenses (the responding party need not marshal all evidence that may be offered
at trial);
(d) the amount and any method of calculating economic damages;
(e) the name, address, and telephone number of persons having knowledge of relevant
facts, and a brief statement of each identified person's connection with the case;
(f) for any testifying expert:
(1) the expert's name, address, and telephone number;
(2) the subject matter on which the expert will testify;
(3) the general substance of the expert's mental impressions and opinions and a
brief summary of the basis for them, or if the expert is not retained by,
employed by, or otherwise subject to the control of the responding party,
documents reflecting such information;
(4) if the expert is retained by, employed by, or otherwise subject to the control
of the responding party:
(A) 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 the expert's testimony; and
(B) the expert's current resume and bibliography;
(g) any indemnity and insuring agreements described in Rule 192.3(f);
(h) any settlement agreements described in Rule 192.3(g);
(i) any witness statements described in Rule 192.3(h);
(j) in a suit alleging physical or mental injury and damages from the occurrence that is
the subject of the case, all medical records and bills that are reasonably related to the
injuries or damages asserted or, in lieu thereof, an authorization permitting the
disclosure of such medical records and bills;
(k) in a suit alleging physical or mental injury and damages from the occurrence that is
the subject of the case, all medical records and bills obtained by the responding party
by virtue of an authorization furnished by the requesting party;
(l) the name, address, and telephone number of any person who may be designated as
a responsible third party.
194.3 Response.
The responding party must serve a written response on the requesting party within 30 days after
service of the request, except that:
(a) a defendant served with a request before the defendant's answer is due need not
respond until 50 days after service of the request, and
(b) a response to a request under Rule 194.2(f) is governed by Rule 195.
194.4 Production.
Copies of documents and other tangible items ordinarily must be served with the response. But if the
responsive documents are voluminous, the response must state a reasonable time and place for the
production of documents. The responding party must produce the documents at the time and place
stated, unless otherwise agreed by the parties or ordered by the court, and must provide the
requesting party a reasonable opportunity to inspect them.
194.5 No Objection or Assertion of Work Product.
No objection or assertion of work product is permitted to a request under this rule.
194.6 Certain Responses Not Admissible.
A response to requests under Rule 194.2(c) and (d) that has been changed by an amended or
supplemental response is not admissible and may not be used for impeachment.
RULE 195. DISCOVERY REGARDING TESTIFYING EXPERT WITNESSES
195.1 Permissible Discovery Tools.
A party may request another party to designate and disclose information concerning testifying expert
witnesses only through a request for disclosure under Rule 194 and through depositions and reports
as permitted by this rule.
195.2 Schedule for Designating Experts.
Unless otherwise ordered by the court, a party must designate experts - that is, furnish information
requested under Rule 194.2(f) - by the later of the following two dates: 30 days after the request is
served, or
(a) with regard to all experts testifying for a party seeking affirmative relief, 90 days
before the end of the discovery period;
(b) with regard to all other experts, 60 days before the end of the discovery period.
195.3 Scheduling Depositions.
(a) Experts for party seeking affirmative relief. A party seeking affirmative relief must make
an expert retained by, employed by, or otherwise in the control of the party available for
deposition as follows:
(1) If no report furnished. If a report of the expert's factual observations, tests,
supporting data, calculations, photographs, and opinions is not produced when the
expert is designated, then the party must make the expert available for deposition
reasonably promptly after the expert is designated. If the deposition cannot--due to
the actions of the tendering party--reasonably be concluded more than 15 days before
the deadline for designating other experts, that deadline must be extended for other
experts testifying on the same subject.
(2) If report furnished. If a report of the expert's factual observations, tests, supporting
data, calculations, photographs, and opinions is produced when the expert is
designated, then the party need not make the expert available for deposition until
reasonably promptly after all other experts have been designated.
(b) Other experts. A party not seeking affirmative relief must make an expert retained by,
employed by, or otherwise in the control of the party available for deposition reasonably
promptly after the expert is designated and the experts testifying on the same subject for the
party seeking affirmative relief have been deposed.
195.4 Oral Deposition.
In addition to disclosure under Rule 194, a party may obtain discovery concerning the subject matter
on which the expert is expected to testify, the expert's mental impressions and opinions, the facts
known to the expert (regardless of when the factual information was acquired) that relate to or form
the basis of the testifying expert's mental impressions and opinions, and other discoverable matters,
including documents not produced in disclosure, only by oral deposition of the expert and by a report
prepared by the expert under this rule.
195.5 Court-Ordered Reports.
If the discoverable factual observations, tests, supporting data, calculations, photographs, or opinions
of an expert have not been recorded and reduced to tangible form, the court may order these matters
reduced to tangible form and produced in addition to the deposition.
195.6 Amendment and Supplementation.
A party's duty to amend and supplement written discovery regarding a testifying expert is governed
by Rule 193.5. If an expert witness is retained by, employed by, or otherwise under the control of
a party, that party must also amend or supplement any deposition testimony or written report by the
expert, but only with regard to the expert's mental impressions or opinions and the basis for them.
195.7 Cost of Expert Witnesses.
When a party takes the oral deposition of an expert witness retained by the opposing party, all
reasonable fees charged by the expert for time spent in preparing for, giving, reviewing, and
correcting the deposition must be paid by the party that retained the expert.
RULE 196. REQUESTS FOR PRODUCTION AND INSPECTION TO PARTIES;
REQUESTS AND MOTIONS FOR ENTRY UPON PROPERTY
196.1 Request for Production and Inspection to Parties.
(a) Request. 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.
(b) Contents of 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.
(c) Requests for production of medical or mental health records regarding nonparties.
(1) Service of request on nonparty. If a party requests another party to produce
medical or mental health records regarding a nonparty, the requesting party must
serve the nonparty with the request for production under Rule 21a.
(2) Exceptions. A party is not required to serve the request for production on a nonparty
whose medical records are sought if:
(A) the nonparty signs a release of the records that is effective as to the requesting
party;
(B) the identity of the nonparty whose records are sought will not directly or
indirectly be disclosed by production of the records; or
(C) the court, upon a showing of good cause by the party seeking the records,
orders that service is not required.
(3) Confidentiality. Nothing in this rule excuses compliance with laws concerning the
confidentiality of medical or mental health records.
196.2 Response to Request for Production and Inspection.
(a) Time for response. The responding party must serve a written response on the requesting
party within 30 days after service of the request, except that a defendant served with a request
before the defendant's answer is due need not respond until 50 days after service of the
request.
(b) Content of response. With respect to each item or category of items, the responding party
must state objections and assert privileges as required by these rules, and state, as
appropriate, that:
(1) production, inspection, or other requested action will be permitted as requested;
(2) the requested items are being served on the requesting party with the response;
(3) production, inspection, or other requested action will take place at a specified time
and place, if the responding party is objecting to the time and place of production; or
(4) no items have been identified - after a diligent search - that are responsive to the
request.
196.3 Production.
(a) Time and place of production. Subject to any objections stated in the response, the
responding party must produce the requested documents or tangible things within the
person's possession, custody or control at either the time and place requested or the time and
place stated in the response, unless otherwise agreed by the parties or ordered by the court,
and must provide the requesting party a reasonable opportunity to inspect them.
(b) Copies. The responding party may produce copies in lieu of originals unless a question is
raised as to the authenticity of the original or in the circumstances it would be unfair to
produce copies in lieu of originals. If originals are produced, the responding party is entitled
to retain the originals while the requesting party inspects and copies them.
(c) Organization. The responding party must either produce documents and tangible things as
they are kept in the usual course of business or organize and label them to correspond with
the categories in the request.
196.4 Electronic or Magnetic Data.
To obtain discovery of data or information that exists in electronic or magnetic form, the requesting
party must specifically request production of electronic or magnetic data and specify the form in
which the requesting party wants it produced. The responding party must produce the electronic or
magnetic data that is responsive to the request and is reasonably available to the responding party
in its ordinary course of business. If the responding party cannot - through reasonable efforts -
retrieve the data or information requested or produce it in the form requested, the responding party
must state an objection complying with these rules. If the court orders the responding party to comply
with the request, the court must also order that the requesting party pay the reasonable expenses of
any extraordinary steps required to retrieve and produce the information.
196.5 Destruction or Alteration.
Testing, sampling or examination of an item may not destroy or materially alter an item unless
previously authorized by the court.
196.6 Expenses of Production.
Unless otherwise ordered by the court for good cause, the expense of producing items will be borne
by the responding party and the expense of inspecting, sampling, testing, photographing, and copying
items produced will be borne by the requesting party.
196.7 Request of Motion for Entry Upon Property.
(a) Request or motion. A party may gain entry on designated land or other property to inspect,
measure, survey, photograph, test, or sample the property or any designated object or
operation thereon by serving - no later than 30 days before the end of any applicable
discovery period -
(1) a request on all parties if the land or property belongs to a party, or
(2) a motion and notice of hearing on all parties and the nonparty if the land or property
belongs to a nonparty. If the identity or address of the nonparty is unknown and
cannot be obtained through reasonable diligence, the court must permit service by
means other than those specified in Rule 21a that are reasonably calculated to give
the nonparty notice of the motion and hearing.
(b) Time, place, and other conditions. The request for entry upon a party's property, or the
order for entry upon a nonparty's property, must state the time, place, manner, conditions, and
scope of the inspection, and must specifically describe any desired means, manner, and
procedure for testing or sampling, and the person or persons by whom the inspection, testing,
or sampling is to be made.
(c) Response to request for entry.
(1) Time to respond. The responding party must serve a written response on the
requesting party within 30 days after service of the request, except that a defendant
served with a request before the defendant's answer is due need not respond until 50
days after service of the request.
(2) Content of response. The responding party must state objections and assert
privileges as required by these rules, and state, as appropriate, that:
(A) entry or other requested action will be permitted as requested;
(B) entry or other requested action will take place at a specified time and place,
if the responding party is objecting to the time and place of production; or
(C) entry or other requested action cannot be permitted for reasons stated in the
response.
(d) Requirements for order for entry on nonparty's property. An order for entry on a
nonparty's property may issue only for good cause shown and only if the land, property, or
object thereon as to which discovery is sought is relevant to the subject matter of the action.

General Rules Rules of Practice in District and County Courts p.1 Rules of Practice in District and County Courts p.2 Rules of Practice in District and County Courts p.3
Rules of Practice in Justice Courts Rules Relating to Ancillary Proceedings Rules Relating to Special Proceedings Closing Rules