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RULE 197. INTERROGATORIES TO PARTIES
197.1 Interrogatories.
A party may serve on another party - no later than 30 days before the end of the discovery period -
written interrogatories to inquire about any matter within the scope of discovery except matters
covered by Rule 195. An interrogatory may inquire whether a party makes a specific legal or factual
contention and may ask the responding party to state the legal theories and to describe in general the
factual bases for the party's claims or defenses, but interrogatories may not be used to require the
responding party to marshal all of its available proof or the proof the party intends to offer at trial.
197.2 Response to Interrogatories.
(a) Time for response. The responding party must serve a written response on the requesting
party within 30 days after service of the interrogatories, except that a defendant served with
interrogatories before the defendant's answer is due need not respond until 50 days after
service of the interrogatories.
(b) Content of response. A response must include the party's answers to the interrogatories and
may include objections and assertions of privilege as required under these rules.
(c) Option to produce records. If the answer to an interrogatory may be derived or ascertained
from public records, from the responding party's business records, or from a compilation,
abstract or summary of the responding party's business records, and the burden of deriving
or ascertaining the answer is substantially the same for the requesting party as for the
responding party, the responding party may answer the interrogatory by specifying and, if
applicable, producing the records or compilation, abstract or summary of the records. The
records from which the answer may be derived or ascertained must be specified in sufficient
detail to permit the requesting party to locate and identify them as readily as can the
responding party. If the responding party has specified business records, the responding party
must state a reasonable time and place for examination of the 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.
(d) Verification required; exceptions. A responding party - not an agent or attorney as
otherwise permitted by Rule 14 - must sign the answers under oath except that:
(1) when answers are based on information obtained from other persons, the party may
so state, and
(2) a party need not sign answers to interrogatories about persons with knowledge of
relevant facts, trial witnesses, and legal contentions.
197.3 Use.
Answers to interrogatories may be used only against the responding party. An answer to an
interrogatory inquiring about matters described in Rule 194.2(c) and (d) that has been amended or
supplemented is not admissible and may not be used for impeachment.
RULE 198. REQUESTS FOR ADMISSIONS
198.1 Request for Admissions.
A party may serve on another party - no later than 30 days before the end of the discovery period -
written requests that the other party admit the truth of any matter within the scope of discovery,
including statements of opinion or of fact or of the application of law to fact, or the genuineness of
any documents served with the request or otherwise made available for inspection and copying. Each
matter for which an admission is requested must be stated separately.
198.2 Response to Requests for Admissions.
(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. Unless the responding party states an objection or asserts a privilege,
the responding party must specifically admit or deny the request or explain in detail the
reasons that the responding party cannot admit or deny the request. A response must fairly
meet the substance of the request. The responding party may qualify an answer, or deny a
request in part, only when good faith requires. Lack of information or knowledge is not a
proper response unless the responding party states that a reasonable inquiry was made but
that the information known or easily obtainable is insufficient to enable the responding party
to admit or deny. An assertion that the request presents an issue for trial is not a proper
response.
(c) Effect of failure to respond. If a response is not timely served, the request is considered
admitted without the necessity of a court order.
198.3 Effect of Admissions; Withdrawal or Amendment.
Any admission made by a party under this rule may be used solely in the pending action and not in
any other proceeding. A matter admitted under this rule is conclusively established as to the party
making the admission unless the court permits the party to withdraw or amend the admission. The
court may permit the party to withdraw or amend the admission if:
(a) the party shows good cause for the withdrawal or amendment; and
(b) the court finds that the parties relying upon the responses and deemed admissions
will not be unduly prejudiced and that the presentation of the merits of the action will
be subserved by permitting the party to amend or withdraw the admission.
RULE 199. DEPOSITIONS UPON ORAL EXAMINATION
199.1 Oral Examination; Alternative Methods of Conducting or Recording.
(a) Generally. A party may take the testimony of any person or entity by deposition on oral
examination before any officer authorized by law to take depositions. The testimony,
objections, and any other statements during the deposition must be recorded at the time they
are given or made.
(b) Depositions by telephone or other remote electronic means. A party may take an oral
deposition by telephone or other remote electronic means if the party gives reasonable prior
written notice of intent to do so. For the purposes of these rules, an oral deposition taken by
telephone or other remote electronic means is considered as having been taken in the district
and at the place where the witness is located when answering the questions. The officer
taking the deposition may be located with the party noticing the deposition instead of with
the witness if the witness is placed under oath by a person who is present with the witness
and authorized to administer oaths in that jurisdiction.
(c) Non-stenographic recording. Any party may cause a deposition upon oral examination to
be recorded by other than stenographic means, including videotape recording. The party
requesting the non-stenographic recording will be responsible for obtaining a person
authorized by law to administer the oath and for assuring that the recording will be
intelligible, accurate, and trustworthy. At least five days prior to the deposition, the party
must serve on the witness and all parties a notice, either in the notice of deposition or
separately, that the deposition will be recorded by other than stenographic means. This notice
must state the method of non-stenographic recording to be used and whether the deposition
will also be recorded stenographically. Any other party may then serve written notice
designating another method of recording in addition to the method specified, at the expense
of such other party unless the court orders otherwise.
199.2 Procedure for Noticing Oral Depositions.
(a) Time to notice deposition. A notice of intent to take an oral deposition must be served on
the witness and all parties a reasonable time before the deposition is taken. An oral
deposition may be taken outside the discovery period only by agreement of the parties or with
leave of court.
(b) Content of notice.
(1) Identity of witness; organizations. The notice must state the name of the witness,
which may be either an individual or a public or private corporation, partnership,
association, governmental agency, or other organization. If an organization is named
as the witness, the notice must describe with reasonable particularity the matters on
which examination is requested. In response, the organization named in the notice
must - a reasonable time before the deposition - designate one or more individuals
to testify on its behalf and set forth, for each individual designated, the matters on
which the individual will testify. Each individual designated must testify as to matters
that are known or reasonably available to the organization. This subdivision does not
preclude taking a deposition by any other procedure authorized by these rules.
(2) Time and place. The notice must state a reasonable time and place for the oral
deposition. The place may be in:
(A) the county of the witness's residence;
(B) the county where the witness is employed or regularly transacts business in
person;
(C) the county of suit, if the witness is a party or a person designated by a party
under Rule 199.2(b)(1);
(D) the county where the witness was served with the subpoena, or within 150
miles of the place of service, if the witness is not a resident of Texas or is a
transient person; or
(E) subject to the foregoing, at any other convenient place directed by the court
in which the cause is pending.
(3) Alternative means of conducting and recording. The notice must state whether
the deposition is to be taken by telephone or other remote electronic means and
identify the means. If the deposition is to be recorded by nonstenographic means, the
notice may include the notice required by Rule 199.1(c).
(4) Additional attendees. The notice may include the notice concerning additional
attendees required by Rule 199.5(a)(3).
(5) Request for production of documents. A notice may include a request that the
witness produce at the deposition documents or tangible things within the scope of
discovery and within the witness's possession, custody, or control. If the witness is
a nonparty, the request must comply with Rule 205 and the designation of materials
required to be identified in the subpoena must be attached to, or included in, the
notice. The nonparty's response to the request is governed by Rules 176 and 205.
When the witness is a party or subject to the control of a party, document requests
under this subdivision are governed by Rules 193 and 196.
199.3 Compelling Witness to Attend.
A party may compel the witness to attend the oral deposition by serving the witness with a subpoena
under Rule 176. If the witness is a party or is retained by, employed by, or otherwise subject to the
control of a party, however, service of the notice of oral deposition upon the party's attorney has the
same effect as a subpoena served on the witness.
199.4 Objections to Time and Place of Oral Deposition.
A party or witness may object to the time and place designated for an oral deposition by motion for
protective order or by motion to quash the notice of deposition. If the motion is filed by the third
business day after service of the notice of deposition, an objection to the time and place of a
deposition stays the oral deposition until the motion can be determined.
199.5 Examination, Objection, and Conduct During Oral Depositions.
(a) Attendance.
(1) Witness. The witness must remain in attendance from day to day until the deposition
is begun and completed.
(2) Attendance by party. A party may attend an oral deposition in person, even if the
deposition is taken by telephone or other remote electronic means. If a deposition is
taken by telephone or other remote electronic means, the party noticing the
deposition must make arrangements for all persons to attend by the same means. If
the party noticing the deposition appears in person, any other party may appear by
telephone or other remote electronic means if that party makes the necessary
arrangements with the deposition officer and the party noticing the deposition.
(3) Other attendees. If any party intends to have in attendance any persons other than
the witness, parties, spouses of parties, counsel, employees of counsel, and the officer
taking the oral deposition, that party must give reasonable notice to all parties, either
in the notice of deposition or separately, of the identity of the other persons.
(b) Oath; examination. Every person whose deposition is taken by oral examination must first
be placed under oath. The parties may examine and cross-examine the witness. Any party,
in lieu of participating in the examination, may serve written questions in a sealed envelope
on the party noticing the oral deposition, who must deliver them to the deposition officer,
who must open the envelope and propound them to the witness.
(c) Time limitation. No side may examine or cross-examine an individual witness for more
than six hours. Breaks during depositions do not count against this limitation.
(d) Conduct during the oral deposition; conferences. The oral deposition must be conducted
in the same manner as if the testimony were being obtained in court during trial. Counsel
should cooperate with and be courteous to each other and to the witness. The witness should
not be evasive and should not unduly delay the examination. Private conferences between
the witness and the witness's attorney during the actual taking of the deposition are improper
except for the purpose of determining whether a privilege should be asserted. Private
conferences may be held, however, during agreed recesses and adjournments. If the lawyers
and witnesses do not comply with this rule, the court may allow in evidence at trial
statements, objections, discussions, and other occurrences during the oral deposition that
reflect upon the credibility of the witness or the testimony.
(e) Objections. Objections to questions during the oral deposition are limited to "Objection,
leading" and "Objection, form." Objections to testimony during the oral deposition are
limited to "Objection, non-responsive." These objections are waived if not stated as phrased
during the oral deposition. All other objections need not be made or recorded during the oral
deposition to be later raised with the court. The objecting party must give a clear and concise
explanation of an objection if requested by the party taking the oral deposition, or the
objection is waived. Argumentative or suggestive objections or explanations waive objection
and may be grounds for terminating the oral deposition or assessing costs or other sanctions.
The officer taking the oral deposition will not rule on objections but must record them for
ruling by the court. The officer taking the oral deposition must not fail to record testimony
because an objection has been made.
(f) Instructions not to answer. An attorney may instruct a witness not to answer a question
during an oral deposition only if necessary to preserve a privilege, comply with a court order
or these rules, protect a witness from an abusive question or one for which any answer would
be misleading, or secure a ruling pursuant to paragraph (g). The attorney instructing the
witness not to answer must give a concise, non-argumentative, non-suggestive explanation
of the grounds for the instruction if requested by the party who asked the question.
(g) Suspending the deposition. If the time limitations for the deposition have expired or the
deposition is being conducted or defended in violation of these rules, a party or witness may
suspend the oral deposition for the time necessary to obtain a ruling.
(h) Good faith required. An attorney must not ask a question at an oral deposition solely to
harass or mislead the witness, for any other improper purpose, or without a good faith legal
basis at the time. An attorney must not object to a question at an oral deposition, instruct the
witness not to answer a question, or suspend the deposition unless there is a good faith
factual and legal basis for doing so at the time.
199.6 Hearing on Objections.
Any party may, at any reasonable time, request a hearing on an objection or privilege asserted by an
instruction not to answer or suspension of the deposition; provided the failure of a party to obtain
a ruling prior to trial does not waive any objection or privilege. The party seeking to avoid discovery
must present any evidence necessary to support the objection or privilege either by testimony at the
hearing or by affidavits served on opposing parties at least seven days before the hearing. If the court
determines that an in camera review of some or all of the requested discovery is necessary to rule,
answers to the deposition questions may be made in camera, to be transcribed and sealed in the event
the privilege is sustained, or made in an affidavit produced to the court in a sealed wrapper.
RULE 200. DEPOSITIONS UPON WRITTEN QUESTIONS
200.1 Procedure for Noticing Deposition Upon Written Questions.
(a) Who may be noticed; when. A party may take the testimony of any person or entity by
deposition on written questions before any person authorized by law to take depositions on
written questions. A notice of intent to take the deposition must be served on the witness and
all parties at least 20 days before the deposition is taken. A deposition on written questions
may be taken outside the discovery period only by agreement of the parties or with leave of
court. The party noticing the deposition must also deliver to the deposition officer a copy of
the notice and of all written questions to be asked during the deposition.
(b) Content of notice. The notice must comply with Rules 199.1(b), 199.2(b), and 199.5(a)(3).
If the witness is an organization, the organization must comply with the requirements of that
provision. The notice also may include a request for production of documents as permitted
by Rule 199.2(b)(5), the provisions of which will govern the request, service, and response.
200.2 Compelling Witness to Attend.
A party may compel the witness to attend the deposition on written questions by serving the witness
with a subpoena under Rule 176. If the witness is a party or is retained by, employed by, or otherwise
subject to the control of a party, however, service of the deposition notice upon the party's attorney
has the same effect as a subpoena served on the witness.
200.3 Questions and Objections.
(a) Direct questions. The direct questions to be propounded to the witness must be attached to
the notice.
(b) Objections and additional questions. Within ten days after the notice and direct questions
are served, any party may object to the direct questions and serve cross-questions on all other
parties. Within five days after cross-questions are served, any party may object to the crossquestions
and serve redirect questions on all other parties. Within three days after redirect
questions are served, any party may object to the redirect questions and serve re-cross
questions on all other parties. Objections to re-cross questions must be served within five
days after the earlier of when re-cross questions are served or the time of the deposition on
written questions.
(c) Objections to form of questions. Objections to the form of a question are waived unless
asserted in accordance with this subdivision.
200.4 Conducting the Deposition Upon Written Questions.
The deposition officer must: take the deposition on written questions at the time and place
designated; record the testimony of the witness under oath in response to the questions; and prepare,
certify, and deliver the deposition transcript in accordance with Rule 203. The deposition officer has
authority when necessary to summon and swear an interpreter to facilitate the taking of the
deposition.
RULE 201. DEPOSITIONS IN FOREIGN JURISDICTIONS FOR USE IN
TEXAS PROCEEDINGS; DEPOSITIONS IN TEXAS FOR USE IN
FOREIGN PROCEEDINGS
201.1 Depositions in Foreign Jurisdictions for Use in Texas Proceedings.
(a) Generally. A party may take a deposition on oral examination or written questions of any
person or entity located in another state or a foreign country for use in proceedings in this
State. The deposition may be taken by:
(1) notice;
(2) letter rogatory, letter of request, or other such device;
(3) agreement of the parties; or
(4) court order.
(b) By notice. A party may take the deposition by notice in accordance with these rules as if the
deposition were taken in this State, except that the deposition officer may be a person
authorized to administer oaths in the place where the deposition is taken.
(c) By letter rogatory. On motion by a party, the court in which an action is pending must issue
a letter rogatory on terms that are just and appropriate, regardless of whether any other
manner of obtaining the deposition is impractical or inconvenient. The letter must:
(1) be addressed to the appropriate authority in the jurisdiction in which the deposition
is to be taken;
(2) request and authorize that authority to summon the witness before the authority at a
time and place stated in the letter for examination on oral or written questions; and
(3) request and authorize that authority to cause the witness's testimony to be reduced to
writing and returned, together with any items marked as exhibits, to the party
requesting the letter rogatory.
(d) By letter of request or other such device. On motion by a party, the court in which an
action is pending, or the clerk of that court, must issue a letter of request or other such device
in accordance with an applicable treaty or international convention on terms that are just and
appropriate. The letter or other device must be issued regardless of whether any other manner
of obtaining the deposition is impractical or inconvenient. The letter or other device must:
(1) be in the form prescribed by the treaty or convention under which it is issued, as
presented by the movant to the court or clerk; and
(2) must state the time, place, and manner of the examination of the witness.
(e) Objections to form of letter rogatory, letter of request, or other such device. In issuing
a letter rogatory, letter of request, or other such device, the court must set a time for objecting
to the form of the device. A party must make any objection to the form of the device in
writing and serve it on all other parties by the time set by the court, or the objection is
waived.
(f) Admissibility of evidence. Evidence obtained in response to a letter rogatory, letter of
request, or other such device is not inadmissible merely because it is not a verbatim
transcript, or the testimony was not taken under oath, or for any similar departure from the
requirements for depositions taken within this State under these rules.
(g) Deposition by electronic means. A deposition in another jurisdiction may be taken by
telephone, video conference, teleconference, or other electronic means under the provisions
of Rule 199.
201.2 Depositions in Texas for Use in Proceedings in Foreign Jurisdictions.
If a court of record of any other state or foreign jurisdiction issues a mandate, writ, or commission
that requires a witness's oral or written deposition testimony in this State, the witness may be
compelled to appear and testify in the same manner and by the same process used for taking
testimony in a proceeding pending in this State.
RULE 202. DEPOSITIONS BEFORE SUIT OR TO INVESTIGATE CLAIMS
202.1 Generally.
A person may petition the court for an order authorizing the taking of a deposition on oral
examination or written questions either:
(a) to perpetuate or obtain the person's own testimony or that of any other person for use
in an anticipated suit; or
(b) to investigate a potential claim or suit.
202.2 Petition
The petition must:
(a) be verified;
(b) be filed in a proper court of any county:
(1) where venue of the anticipated suit may lie, if suit is anticipated; or
(2) where the witness resides, if no suit is yet anticipated;
(c) be in the name of the petitioner;
(d) state either:
(1) that the petitioner anticipates the institution of a suit in which the petitioner
may be a party; or
(2) that the petitioner seeks to investigate a potential claim by or against
petitioner;
(e) state the subject matter of the anticipated action, if any, and the petitioner's interest
therein;
(f) if suit is anticipated, either:
(1) state the names of the persons petitioner expects to have interests adverse to
petitioner's in the anticipated suit, and the addresses and telephone numbers
for such persons; or
(2) state that the names, addresses, and telephone numbers of persons petitioner
expects to have interests adverse to petitioner's in the anticipated suit cannot
be ascertained through diligent inquiry, and describe those persons;
(g) state the names, addresses and telephone numbers of the persons to be deposed, the
substance of the testimony that the petitioner expects to elicit from each, and the
petitioner's reasons for desiring to obtain the testimony of each; and
(h) request an order authorizing the petitioner to take the depositions of the persons
named in the petition.
202.3 Notice and Service.
(a) Personal service on witnesses and persons named. At least 15 days before the date of the
hearing on the petition, the petitioner must serve the petition and a notice of the hearing - in
accordance with Rule 21a - on all persons petitioner seeks to depose and, if suit is
anticipated, on all persons petitioner expects to have interests adverse to petitioner's in the
anticipated suit.
(b) Service by publication on persons not named.
(1) Manner. Unnamed persons described in the petition whom the petitioner expects
to have interests adverse to petitioner's in the anticipated suit, if any, may be served
by publication with the petition and notice of the hearing. The notice must state the
place for the hearing and the time it will be held, which must be more than 14 days
after the first publication of the notice. The petition and notice must be published
once each week for two consecutive weeks in the newspaper of broadest circulation
in the county in which the petition is filed, or if no such newspaper exists, in the
newspaper of broadest circulation in the nearest county where a newspaper is
published.
(2) Objection to depositions taken on notice by publication. Any interested party may
move, in the proceeding or by bill of review, to suppress any deposition, in whole or
in part, taken on notice by publication, and may also attack or oppose the deposition
by any other means available.
(c) Service in probate cases. A petition to take a deposition in anticipation of an application
for probate of a will, and notice of the hearing on the petition, may be served by posting as
prescribed by Section 33(f)(2) of the Probate Code. The notice and petition must be directed
to all parties interested in the testator's estate and must comply with the requirements of
Section 33(c) of the Probate Code insofar as they may be applicable.
(d) Modification by order. As justice or necessity may require, the court may shorten or
lengthen the notice periods under this rule and may extend the notice period to permit service
on any expected adverse party.
202.4 Order.
(a) Required findings. The court must order a deposition to be taken if, but only if, it finds that:
(1) allowing the petitioner to take the requested deposition may prevent a failure or delay
of justice in an anticipated suit; or
(2) the likely benefit of allowing the petitioner to take the requested deposition to
investigate a potential claim outweighs the burden or expense of the procedure.
(b) Contents. The order must state whether a deposition will be taken on oral examination or
written questions. The order may also state the time and place at which a deposition will be
taken. If the order does not state the time and place at which a deposition will be taken, the
petitioner must notice the deposition as required by Rules 199 or 200. The order must contain
any protections the court finds necessary or appropriate to protect the witness or any person
who may be affected by the procedure.
202.5 Manner of Taking and Use.
Except as otherwise provided in this rule, depositions authorized by this rule are governed by the
rules applicable to depositions of non-parties in a pending suit. The scope of discovery in depositions
authorized by this rule is the same as if the anticipated suit or potential claim had been filed. A court
may restrict or prohibit the use of a deposition taken under this rule in a subsequent suit to protect
a person who was not served with notice of the deposition from any unfair prejudice or to prevent
abuse of this rule.
RULE 203. SIGNING, CERTIFICATION AND USE OF ORAL
AND WRITTEN DEPOSITIONS
203.1 Signature and Changes.
(a) Deposition transcript to be provided to witness. The deposition officer must provide the
original deposition transcript to the witness for examination and signature. If the witness is
represented by an attorney at the deposition, the deposition officer must provide the transcript
to the attorney instead of the witness.
(b) Changes by witness; signature. The witness may change responses as reflected in the
deposition transcript by indicating the desired changes, in writing, on a separate sheet of
paper, together with a statement of the reasons for making the changes. No erasures or
obliterations of any kind may be made to the original deposition transcript. The witness must
then sign the transcript under oath and return it to the deposition officer. If the witness does
not return the transcript to the deposition officer within 20 days of the date the transcript was
provided to the witness or the witness's attorney, the witness may be deemed to have waived
the right to make the changes.
(c) Exceptions. The requirements of presentation and signature under this subdivision do not
apply:
(1) if the witness and all parties waive the signature requirement;
(2) to depositions on written questions; or
(3) to non-stenographic recordings of oral depositions.
203.2 Certification.
The deposition officer must file with the court, serve on all parties, and attach as part of the
deposition transcript or non-stenographic recording of an oral deposition a certificate duly sworn by
the officer stating:
(a) that the witness was duly sworn by the officer and that the transcript or nonstenographic
recording of the oral deposition is a true record of the testimony given
by the witness;
(b) that the deposition transcript, if any, was submitted to the witness or to the attorney
for the witness for examination and signature, the date on which the transcript was
submitted, whether the witness returned the transcript, and if so, the date on which
it was returned.
(c) that changes, if any, made by the witness are attached to the deposition transcript;
(d) that the deposition officer delivered the deposition transcript or nonstenographic
recording of an oral deposition in accordance with Rule 203.3;
(e) the amount of time used by each party at the deposition;
(f) the amount of the deposition officer's charges for preparing the original deposition
transcript, which the clerk of the court must tax as costs; and
(g) that a copy of the certificate was served on all parties and the date of service.
203.3 Delivery.
(a) Endorsement; to whom delivered. The deposition officer must endorse the title of the
action and "Deposition of (name of witness)" on the original deposition transcript (or a copy,
if the original was not returned) or the original nonstenographic recording of an oral
deposition, and must return:
(1) the transcript to the party who asked the first question appearing in the transcript, or
(2) the recording to the party who requested it.
(b) Notice. The deposition officer must serve notice of delivery on all other parties.
(c) Inspection and copying; copies. The party receiving the original deposition transcript or
non-stenographic recording must make it available upon reasonable request for inspection
and copying by any other party. Any party or the witness is entitled to obtain a copy of the
deposition transcript or non-stenographic recording from the deposition officer upon payment
of a reasonable fee.
203.4 Exhibits.
At the request of a party, the original documents and things produced for inspection during the
examination of the witness must be marked for identification by the deposition officer and annexed
to the deposition transcript or non-stenographic recording. The person producing the materials may
produce copies instead of originals if the party gives all other parties fair opportunity at the
deposition to compare the copies with the originals. If the person offers originals rather than copies,
the deposition officer must, after the conclusion of the deposition, make copies to be attached to the
original deposition transcript or non-stenographic recording, and then return the originals to the
person who produced them. The person who produced the originals must preserve them for hearing
or trial and make them available for inspection or copying by any other party upon seven days'
notice. Copies annexed to the original deposition transcript or non-stenographic recording may be
used for all purposes.
203.5 Motion to Suppress.
A party may object to any errors and irregularities in the manner in which the testimony is
transcribed, signed, delivered, or otherwise dealt with by the deposition officer by filing a motion
to suppress all or part of the deposition. If the deposition officer complies with Rule 203.3 at least
one day before the case is called to trial, with regard to a deposition transcript, or 30 days before the
case is called to trial, with regard to a non-stenographic recording, the party must file and serve a
motion to suppress before trial commences to preserve the objections.
203.6 Use.
(a) Non-stenographic recording; transcription. A non-stenographic recording of an oral
deposition, or a written transcription of all or part of such a recording, may be used to the
same extent as a deposition taken by stenographic means. However, the court, for good cause
shown, may require that the party seeking to use a non-stenographic recording or written
transcription first obtain a complete transcript of the deposition recording from a certified
court reporter. The court reporter's transcription must be made from the original or a certified
copy of the deposition recording. The court reporter must, to the extent applicable, comply
with the provisions of this rule, except that the court reporter must deliver the original
transcript to the attorney requesting the transcript, and the court reporter's certificate must
include a statement that the transcript is a true record of the non-stenographic recording. The
party to whom the court reporter delivers the original transcript must make the transcript
available, upon reasonable request, for inspection and copying by the witness or any party.
(b) Same proceeding. All or part of a deposition may be used for any purpose in the same
proceeding in which it was taken. If the original is not filed, a certified copy may be used.
"Same proceeding" includes a proceeding in a different court but involving the same subject
matter and the same parties or their representatives or successors in interest. A deposition is
admissible against a party joined after the deposition was taken if:
(1) the deposition is admissible pursuant to Rule 804(b)(1) of the Rules of Evidence, or
(2) that party has had a reasonable opportunity to redepose the witness and has failed to
do so.
(c) Different proceeding. Depositions taken in different proceedings may be used as permitted
by the Rules of Evidence.
RULE 204. PHYSICAL AND MENTAL EXAMINATION
204.1 Motion and Order Required.
(a) Motion. A party may - no later than 30 days before the end of any applicable discovery
period - move for an order compelling another party to:
(1) submit to a physical or mental examination by a qualified physician or a mental
examination by a qualified psychologist; or
(2) produce for such examination a person in the other party's custody, conservatorship
or legal control.
(b) Service. The motion and notice of hearing must be served on the person to be examined and
all parties.
(c) Requirements for obtaining order. The court may issue an order for examination only for
good cause shown and only in the following circumstances:
(1) when the mental or physical condition (including the blood group) of a party, or of
a person in the custody, conservatorship or under the legal control of a party, is in
controversy; or
(2) except as provided in Rule 204.4, an examination by a psychologist may be ordered
when the party responding to the motion has designated a psychologist as a testifying
expert or has disclosed a psychologist's records for possible use at trial.
(d) Requirements of order. The order must be in writing and must specify the time, place,
manner, conditions, and scope of the examination and the person or persons by whom it is
to be made.
204.2 Report of Examining Physician or Psychologist.
(a) Right to report. Upon request of the person ordered to be examined, the party causing the
examination to be made must deliver to the person a copy of a detailed written report of the
examining physician or psychologist setting out the findings, including results of all tests
made, diagnoses and conclusions, together with like reports of all earlier examinations of the
same condition. After delivery of the report, upon request of the party causing the
examination, the party against whom the order is made must produce a like report of any
examination made before or after the ordered examination of the same condition, unless the
person examined is not a party and the party shows that the party is unable to obtain it. The
court on motion may limit delivery of a report on such terms as are just. If a physician or
psychologist fails or refuses to make a report the court may exclude the testimony if offered
at the trial.
(b) Agreements; relationship to other rules. This subdivision applies to examinations made
by agreement of the parties, unless the agreement expressly provides otherwise. This
subdivision does not preclude discovery of a report of an examining physician or
psychologist or the taking of a deposition of the physician or psychologist in accordance with
the provisions of any other rule.
204.3 Effect of No Examination.
If no examination is sought either by agreement or under this subdivision, the party whose physical
or mental condition is in controversy must not comment to the court or jury concerning the party's
willingness to submit to an examination, or on the right or failure of any other party to seek an
examination.
204.4 Cases Arising Under Titles II or V, Family Code.
In cases arising under Family Code Titles II or V, the court may - on its own initiative or on motion
of a party - appoint:
(a) one or more psychologists or psychiatrists to make any and all appropriate mental
examinations of the children who are the subject of the suit or of any other parties,
and may make such appointment irrespective of whether a psychologist or
psychiatrist has been designated by any party as a testifying expert;
(b) one or more experts who are qualified in paternity testing to take blood, body fluid,
or tissue samples to conduct paternity tests as ordered by the court.
204.5 Definitions.
For the purpose of this rule, a psychologist is a person licensed or certified by a state or the District
of Columbia as a psychologist.
RULE 205. DISCOVERY FROM NON-PARTIES
205.1 Forms of Discovery; Subpoena Requirement.
A party may compel discovery from a nonparty--that is, a person who is not a party or subject to a
party's control--only by obtaining a court order under Rules 196.7, 202, or 204, or by serving a
subpoena compelling:
(a) an oral deposition;
(b) a deposition on written questions;
(c) a request for production of documents or tangible things, pursuant to Rule
199.2(b)(5) or Rule 200.1(b), served with a notice of deposition on oral examination
or written questions; and
(d) a request for production of documents and tangible things under this rule.
205.2 Notice.
A party seeking discovery by subpoena from a nonparty must serve, on the nonparty and all parties,
a copy of the form of notice required under the rules governing the applicable form of discovery. A
notice of oral or written deposition must be served before or at the same time that a subpoena
compelling attendance or production under the notice is served. A notice to produce documents or
tangible things under Rule 205.3 must be served at least 10 days before the subpoena compelling
production is served.
205.3 Production of Documents and Tangible Things Without Deposition.
(a) Notice; subpoena. A party may compel production of documents and tangible things from
a nonparty by serving - reasonable time before the response is due but no later than 30 days
before the end of any applicable discovery period - the notice required in Rule 205.2 and a
subpoena compelling production or inspection of documents or tangible things.
(b) Contents of notice. The notice must state:
(1) the name of the person from whom production or inspection is sought to be
compelled;
(2) a reasonable time and place for the production or inspection; and
(3) the items to be produced or inspected, either by individual item or by category,
describing each item and category with reasonable particularity, and, if applicable,
describing the desired testing and sampling with sufficient specificity to inform the
nonparty of the means, manner, and procedure for testing or sampling.
(c) Requests for production of medical or mental health records of other non-parties. If
a party requests a nonparty to produce medical or mental health records of another nonparty,
the requesting party must serve the nonparty whose records are sought with the notice
required under this rule. This requirement does not apply under the circumstances set forth
in Rule 196.1(c)(2).
(d) Response. The nonparty must respond to the notice and subpoena in accordance with Rule
176.6.
(e) Custody, inspection and copying. The party obtaining the production must make all
materials produced available for inspection by any other party on reasonable notice, and must
furnish copies to any party who requests at that party's expense.
(f) Cost of production. A party requiring production of documents by a nonparty must
reimburse the nonparty's reasonable costs of production.
RULE 215. ABUSE OF DISCOVERY; SANCTIONS
215.1 Motion for Sanctions or Order Compelling Discovery.
A party, upon reasonable notice to other parties and all other persons affected thereby, may apply
for sanctions or an order compelling discovery as follows:
(a) Appropriate court. On matters relating to a deposition, an application for an order
to a party may be made to the court in which the action is pending, or to any district
court in the district where the deposition is being taken. An application for an order
to a deponent who is not a party shall be made to the court in the district where the
deposition is being taken. As to all other discovery matters, an application for an
order will be made to the court in which the action is pending.
(b) Motion.
(1) If a party or other deponent which is a corporation or other entity fails to
make a designation under Rules 199.2(b)(1) or 200.1(b); or
(2) if a party, or other deponent, or a person designated to testify on behalf of a
party or other deponent fails:
(A) to appear before the officer who is to take his deposition, after being
served with a proper notice; or
(B) to answer a question propounded or submitted upon oral examination
or upon written questions; or
(3) if a party fails:
(A) to serve answers or objections to interrogatories submitted under Rule
197, after proper service of the interrogatories; or
(B) to answer an interrogatory submitted under Rule 197; or
(C) to serve a written response to a request for inspection submitted under
Rule 196, after proper service of the request; or
(D) to respond that discovery will be permitted as requested or fails to
permit discovery as requested in response to a request for inspection
submitted under Rule 196; the discovering party may move for an
order compelling a designation, an appearance, an answer or answers,
or inspection or production in accordance with the request, or apply
to the court in which the action is pending for the imposition of any
sanction authorized by Rule 215.2(b) without the necessity of first
having obtained a court order compelling such discovery.
When taking a deposition on oral examination, the proponent of the question may
complete or adjourn the examination before he applies for an order.
If the court denies the motion in whole or in part, it may make such protective order
as it would have been empowered to make on a motion pursuant to Rule 192.6.
(c) Evasive or incomplete answer. For purposes of this subdivision an evasive or
incomplete answer is to be treated as a failure to answer.
(d) Disposition of motion to compel: award of expenses. If the motion is granted, the
court shall, after opportunity for hearing, require a party or deponent whose conduct
necessitated the motion or the party or attorney advising such conduct or both of
them to pay, at such time as ordered by the court, the moving party the reasonable
expenses incurred in obtaining the order, including attorney fees, unless the court
finds that the opposition to the motion was substantially justified or that other
circumstances make an award of expenses unjust. Such an order shall be subject to
review on appeal from the final judgment.
If the motion is denied, the court may, after opportunity for hearing, require the
moving party or attorney advising such motion to pay to the party or deponent who
opposed the motion the reasonable expenses incurred in opposing the motion,
including attorney fees, unless the court finds that the making of the motion was
substantially justified or that other circumstances make an award of expenses unjust.
If the motion is granted in part and denied in part, the court may apportion the
reasonable expenses incurred in relation to the motion among the parties and persons
in a just manner.
In determining the amount of reasonable expenses, including attorney fees, to be
awarded in connection with a motion, the trial court shall award expenses which are
reasonable in relation to the amount of work reasonably expended in obtaining an
order compelling compliance or in opposing a motion which is denied.
(e) Providing person's own statement. If a party fails to comply with any person's
written request for the person's own statement as provided in Rule 192.3(h), the
person who made the request may move for an order compelling compliance. If the
motion is granted, the movant may recover the expenses incurred in obtaining the
order, including attorney fees, which are reasonable in relation to the amount of work
reasonably expended in obtaining the order.
215.2 Failure to Comply with Order or with Discovery Request.
(a) Sanctions by court in district where deposition is taken. If a deponent fails to appear or
to be sworn or to answer a question after being directed to do so by a district court in the
district in which the deposition is being taken, the failure may be considered a contempt of
that court.
(b) Sanctions by court in which action is pending. If a party or an officer, director, or
managing agent of a party or a person designated under Rules 199.2(b)(1) or 200.1(b) to
testify on behalf of a party fails to comply with proper discovery requests or to obey an order
to provide or permit discovery, including an order made under Rules 204 or 215.1, the court
in which the action is pending may, after notice and hearing, make such orders in regard to
the failure as are just, and among others the following:
(1) an order disallowing any further discovery of any kind or of a particular kind by the
disobedient party;
(2) an order charging all or any portion of the expenses of discovery or taxable court
costs or both against the disobedient party or the attorney advising him;
(3) an order that the matters regarding which the order was made or any other designated
facts shall be taken to be established for the purposes of the action in accordance with
the claim of the party obtaining the order;
(4) an order refusing to allow the disobedient party to support or oppose designated
claims or defenses, or prohibiting him from introducing designated matters in
evidence;
(5) an order striking out pleadings or parts thereof, or staying further proceedings until
the order is obeyed, or dismissing with or without prejudice the action or proceedings
or any part thereof, or rendering a judgment by default against the disobedient party;
(6) in lieu of any of the foregoing orders or in addition thereto, an order treating as a
contempt of court the failure to obey any orders except an order to submit to a
physical or mental examination;
(7) when a party has failed to comply with an order under Rule 204 requiring him to
appear or produce another for examination, such orders as are listed in paragraphs
(1), (2), (3), (4) or (5) of this subdivision, unless the person failing to comply shows
that he is unable to appear or to produce such person for examination.
(8) In lieu of any of the foregoing orders or in addition thereto, the court shall require the
party failing to obey the order or the attorney advising him, or both, to pay, at such
time as ordered by the court, the reasonable expenses, including attorney fees, caused
by the failure, unless the court finds that the failure was substantially justified or that
other circumstances make an award of expenses unjust. Such an order shall be
subject to review on appeal from the final judgment.
(c) Sanction against nonparty for violation of Rules 196.7 or 205.3. If a nonparty fails to
comply with an order under Rules 196.7 or 205.3, the court which made the order may treat
the failure to obey as contempt of court.
215.3 Abuse of Discovery Process in Seeking, Making, or Resisting Discovery.
If the court finds a party is abusing the discovery process in seeking, making or resisting discovery
or if the court finds that any interrogatory or request for inspection or production is unreasonably
frivolous, oppressive, or harassing, or that a response or answer is unreasonably frivolous or made
for purposes of delay, then the court in which the action is pending may, after notice and hearing,
impose any appropriate sanction authorized by paragraphs (1), (2), (3), (4), (5), and (8) of Rule
215.2(b). Such order of sanction shall be subject to review on appeal from the final judgment.
215.4 Failure to Comply with Rule 198
(a) Motion. A party who has requested an admission under Rule 198 may move to determine
the sufficiency of the answer or objection. For purposes of this subdivision an evasive or
incomplete answer may be treated as a failure to answer. Unless the court determines that an
objection is justified, it shall order that an answer be served. If the court determines that an
answer does not comply with the requirements of Rule 198, it may order either that the
matter is admitted or that an amended answer be served. The provisions of Rule 215.1(d)
apply to the award of expenses incurred in relation to the motion.
(b) Expenses on failure to admit. If a party fails to admit the genuineness of any document or
the truth of any matter as requested under Rule 198 and if the party requesting the admissions
thereafter proves the genuineness of the document or the truth of the matter, he may apply
to the court for an order requiring the other party to pay him the reasonable expenses incurred
in making that proof, including reasonable attorney fees. The court shall make the order
unless it finds that (1) the request was held objectionable pursuant to Rule 193, or (2) the
admission sought was of no substantial importance, or (3) the party failing to admit had a
reasonable ground to believe that he might prevail on the matter, or (4) there was other good
reason for the failure to admit.
215.5 Failure of Party or Witness to Attend to or Serve Subpoena; Expenses.
(a) Failure of party giving notice to attend. If the party giving the notice of the taking of an
oral deposition fails to attend and proceed therewith and another party attends in person or
by attorney pursuant to the notice, the court may order the party giving the notice to pay such
other party the reasonable expenses incurred by him and his attorney in attending, including
reasonable attorney fees.
(b) Failure of witness to attend. If a party gives notice of the taking of an oral deposition of
a witness and the witness does not attend because of the fault of the party giving the notice,
if another party attends in person or by attorney because he expects the deposition of that
witness to be taken, the court may order the party giving the notice to pay such other party
the reasonable expenses incurred by him and his attorney in attending, including reasonable
attorney fees.
215.6 Exhibits to Motions and Responses.
Motions or responses made under this rule may have exhibits attached including affidavits, discovery
pleadings, or any other documents.
SECTION 10. - THE JURY IN COURT
RULE 216. REQUEST AND FEE FOR JURY TRIAL
a. Request. No jury trial shall be had in any civil suit, unless a written request for a jury trial
is filed with the clerk of the court a reasonable time before the date set for trial of the cause
on the non-jury docket, but not less than thirty days in advance.
b. Jury Fee. Unless otherwise provided by law, a fee of ten dollars if in the district court and
five dollars if in the county court must be deposited with the clerk of the court within the
time for making a written request for a jury trial. The clerk shall promptly enter a notation
of the payment of such fee upon the court's docket sheet.
RULE 217. OATH OF INABILITY
The deposit for a jury fee shall not be required when the party shall within the time for making such
deposit, file with the clerk his affidavit to the effect that he is unable to make such deposit, and that
he can not, by the pledge of property or otherwise, obtain the money necessary for that purpose; and
the court shall then order the clerk to enter the suit on the jury docket.
RULE 218. JURY DOCKET
The clerks of the district and county courts shall each keep a docket, styled "The Jury Docket," in
which shall be entered in their order the cases in which jury fees have been paid or affidavit in lieu
thereof has been filed as provided in the two preceding rules.
RULE 219. JURY TRIAL DAY
The court shall designate the days for taking up the jury docket and the trial of jury cases. Such order
may be revoked or changed in the court's discretion.
RULE 220. WITHDRAWING CAUSE FROM JURY DOCKET
When any party has paid the fee for a jury trial, he shall not be permitted to withdraw the cause from
the jury docket over the objection of the parties adversely interested. If so permitted, the court in its
discretion may by an order permit him to withdraw also his jury fee deposit. Failure of a party to
appear for trial shall be deemed a waiver by him of the right to trial by jury.
RULE 221. CHALLENGE TO THE ARRAY
When the jurors summoned have not been selected by jury commissioners or by drawing the names
from a jury wheel, any party to a suit which is to be tried by a jury may, before the jury is drawn
challenge the array upon the ground that the officer summoning the jury has acted corruptly, and has
wilfully summoned jurors known to be prejudiced against the party challenging or biased in favor
of the adverse party. All such challenges must be in writing setting forth distinctly the grounds of
such challenge and supported by the affidavit of the party or some other credible person. When such
challenge is made, the court shall hear evidence and decide without delay whether or not the
challenge shall be sustained.
RULE 222. WHEN CHALLENGE IS SUSTAINED
If the challenge be sustained, the array of jurors summoned shall be discharged, and the court shall
order other jurors summoned in their stead, and shall direct that the officer who summoned the
persons so discharged, and on account of whose misconduct the challenge has been sustained, shall
not summon any other jurors in the case.
RULE 223. JURY LIST IN CERTAIN COUNTIES
In counties governed as to juries by the laws providing for interchangeable juries, the names of the
jurors shall be placed upon the general panel in the order in which they are randomly selected, and
jurors shall be assigned for service from the top thereof, in the order in which they shall be needed,
and jurors returned to the general panel after service in any of such courts shall be enrolled at the
bottom of the list in the order of their respective return; provided, however, after such assignment
to a particular court, the trial judge of such court, upon the demand prior to voir dire examination
by any party or attorney in the case reached for trial in such court, shall cause the names of all
members of such assigned jury panel in such case to be placed in a receptacle, shuffled, and drawn,
and such names shall be transcribed in the order drawn on the jury list from which the jury is to be
selected to try such case. There shall be only one shuffle and drawing by the trial judge in each case.
RULE 224. PREPARING JURY LIST
In counties not governed as to juries by the laws providing for interchangeable juries, when the
parties have announced ready for trial the clerk shall write the name of each regular juror entered of
record for that week on separate slips of paper, as near the same size and appearance as may be, and
shall place the slips in a box and mix them well. The clerk shall draw from the box, in the presence
of the court, the names of twenty-four jurors, if in the district court, or so many as there may be, if
there be a less number in the box; and the names of twelve jurors if in the county court, or so many
as there may be, and write the names as drawn upon two slips of paper and deliver one slip to each
party to the suit or his attorney.
RULE 225. SUMMONING TALESMAN
When there are not as many as twenty-four names drawn from the box, if in the district court, or as
many as twelve, if in the county court, the court shall direct the sheriff to summon such number of
qualified persons as the court deems necessary to complete the panel. The names of those thus
summoned shall be placed in the box and drawn and entered upon the slips as provided in the
preceding rules.
RULE 226. OATH TO JURY PANEL
Before the parties or their attorneys begin the examination of the jurors whose names have thus been
listed, the jurors shall be sworn by the court or under its direction, as follows: "You, and each of you,
do solemnly swear that you will true answers give to all questions propounded to you concerning
your qualifications as a juror, so help you God."
RULE 226a. ADMONITORY INSTRUCTIONS TO JURY PANEL AND JURY
The court must give instructions to the jury panel and to the jury as prescribed by order of the
Supreme Court under this rule.
Approved Instructions
To implement Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 13.04, 2003 Tex. Gen. Laws 847, 888,
codified as Tex. Civ. Prac. & Rem. Code § 41.003, Part III of the jury instructions prescribed under
Rule 226a, Texas Rules of Civil Procedure, by orders dated July 20, 1966 (effective January 1,
1967); July 21, 1970 (effective January 1, 1971); October 3, 1972 (effective February 1, 1973);
December 5, 1983 (effective April 1, 1984); March 10, 1987 (effective January 1, 1988); December
16, 1987 (effective January 1, 1988); and January 28, 1988 (effective January 1, 1988), is amended
as follows.
I.
That the following oral instructions, with such modifications as the circumstances of the particular
case may require, shall be given by the court to the jurors after they have been sworn as provided in
Rule 226 and before the voir dire examination:
Ladies and Gentlemen of the Jury Panel:
The case that is now on trial is _________________ vs. _________________. This is a civil action
which will be tried before a jury. Your duty as jurors will be to decide the disputed facts. It is the
duty of the judge to see that the case is tried in accordance with the rules of law. In this case, as in
all cases, the actions of the judge, parties, witnesses, attorneys and jurors must be according to law.
The Texas law permits proof of any violation of the rules of proper jury conduct. By this I mean that
jurors and others may be called upon to testify in open court about acts of jury misconduct. I instruct
you, therefore, to follow carefully all instructions which I am now going to give you, as well as
others which you will receive while this case is on trial. If you do not obey the instructions I am
about to give you, it may become necessary for another jury to re-try this case with all of the
attendant waste of your time here and the expense of the litigants and the taxpayers of this county
for another trial. These instructions are as follows:
1. Do not mingle with nor talk to the lawyers, the witnesses, the parties, or any other person
who might be connected with or interested in this case, except for casual greetings. They
have to follow these same instructions and you will understand it when they do.
2. Do not accept from, nor give to, any of those persons any favors however slight, such as
rides, food or refreshments.
3. Do not discuss anything about this case, or even mention it to anyone whomsoever, including
your wife or husband, nor permit anyone to mention it in your hearing until you are
discharged as jurors or excused from this case. If anyone attempts to discuss the case, report
it to me at once.
4. The parties through their attorneys have the right to direct questions to each of you
concerning your qualifications, background, experiences and attitudes. In questioning you,
they are not meddling in your personal affairs, but are trying to select fair and impartial jurors
who are free from any bias or prejudice in this particular case.
a. Do not conceal information or give answers which are not true. Listen to the
questions and give full and complete answers.
b. If the attorneys ask some questions directed to you as a group which require an
answer on your part individually, hold up your hand until you have answered the
questions.
Do you understand these instructions-- If not, please let me know now.
Whether you are selected as a juror for this case or not, you are performing a significant
service which only free people can perform. We shall try the case as fast as possible
consistent with justice, which requires a careful and correct trial. If selected on the jury,
unless I instruct you differently, you will be permitted to separate at recesses and for meals,
and at night.
The attorneys will now proceed with their examination.
II.
That the following oral and written instructions, with such modifications as the circumstances of the
particular case may require shall be given by the court to the jury immediately after the jurors are
selected for the case:
Oral Instructions
Ladies and Gentlemen:
By the oath which you take as jurors, you become officials of this court and active participants in the
public administration of justice. I now give you further instructions which you must obey throughout
this trial.
It is your duty to listen to and consider the evidence and to determine fact issues later submitted to
you, but I, as judge, will decide matters of the law. You will now receive written instructions which
you will observe during this trial, together with such other instructions as I may hereafter give, or
as heretofore I have given to you.
(A copy of the written instructions set out below in this Section II shall thereupon be handed to each
juror.)
As you examine the instructions which have just been handed to you, we will go over them briefly
together. The first three instructions have previously been stated, and you will continue to observe
them throughout the trial. These and the other instructions just handed to you are as follows:
(The written instructions set out below in this Section II shall thereupon be read by the court to the
jury.)
Counsel, you may proceed.
Written Instructions
1. Do not mingle with nor talk to the lawyers, the witnesses, the parties, or any other person
who might be connected with or interested in this case, except for casual greetings. They
have to follow these same instructions and you will understand it when they do.
2. Do not accept from, nor give to, any of those persons any favors however slight, such as
rides, food or refreshments.
3. Do not discuss anything about this case, or even mention it to anyone whomsoever, including
your wife or husband nor permit anyone to mention it in your hearing until you are
discharged as jurors or excused from this case. If anyone attempts to discuss the case, report
it to me at once.
4. Do not even discuss this case among yourselves until after you have heard all of the
evidence, the court's charge, the attorneys' arguments and until I have sent you to the jury
room to consider your verdict.
5. Do not make any investigation about the facts of this case. Occasionally we have a juror who
privately seeks out information about a case on trial. This is improper. All evidence must be
presented in open court so that each side may question the witnesses and make proper
objection. This avoids a trial based upon secret evidence. These rules apply to jurors the
same as they apply to the parties and to me. If you know of, or learn anything about, this case
except from the evidence admitted during the course of this trial, you should tell me about
it at once. You have just taken an oath that you will render a verdict on the evidence
submitted to you under my rulings.
6. Do not make personal inspections, observations, investigations, or experiments nor
personally view premises, things or articles not produced in court. Do not let anyone else do
any of these things for you.
7. Do not tell other jurors your own personal experiences nor those of other persons, nor relate
any special information. A juror may have special knowledge of matters such as business,
technical or professional matters or he may have expert knowledge or opinions, or he may
know what happened in this or some other lawsuit. To tell the other jurors any of this
information is a violation of these instructions.
8. Do not discuss or consider attorney's fees unless evidence about attorney's fees is admitted.
9. Do not consider, discuss, nor speculate whether or not any party is or is not protected in
whole or in part by insurance of any kind.
10. Do not seek information contained in law books, dictionaries, public or private records or
elsewhere, which is not admitted in evidence.
At the conclusion of all the evidence, I may submit to you a written charge asking you some
specific questions. You will not be asked, and you should not consider, whether one party
or the other should win. Since you will need to consider all of the evidence admitted by me,
it is important that you pay close attention to the evidence as it is presented.
The Texas law permits proof of any violation of the rules of proper jury conduct. By this I
mean that jurors and others may be called upon to testify in open court about acts of jury
misconduct. I instruct you, therefore, to follow carefully all instructions which I have given
you, as well as others which you later receive while this case is on trial.
You may keep these instructions and review them as the case proceeds. A violation of these
instructions should be reported to me.
III.
COURT'S CHARGE
Before closing arguments begin, the court must give to each member of the jury a copy of the charge,
which must include the following written instructions with such modifications as the circumstances
of the particular case may require:
Ladies and Gentlemen of the Jury:
This case is submitted to you by asking questions about the facts, which you must decide from the
evidence you have heard in this trial. You are the sole judges of the credibility of the witnesses and
the weight to be given their testimony, but in matters of law, you must be governed by the
instructions in this charge. In discharging your responsibility on this jury, you will observe all the
instructions which have previously been given you. I shall now give you additional instructions
which you should carefully and strictly follow during your deliberations.
1. Do not let bias, prejudice or sympathy play any part in your deliberations.
2. In arriving at your answers, consider only the evidence introduced here under oath and such
exhibits, if any, as have been introduced for your consideration under the rulings of the
Court, that is, what you have seen and heard in this courtroom, together with the law as given
you by the court. In your deliberations, you will not consider or discuss anything that is not
represented by the evidence in this case.
3. Since every answer that is required by the charge is important, no juror should state or
consider that any required answer is not important.
4. You must not decide who you think should win, and then try to answer the questions
accordingly. Simply answer the questions, and do not discuss nor concern yourselves with
the effect of your answers.
5. You will not decide the answer to a question by lot or by drawing straws, or by any other
method of chance. Do not return a quotient verdict. A quotient verdict means that the jurors
agree to abide by the result to be reached by adding together each juror's figures and dividing
by the number of jurors to get an average. Do not do any trading on your answers; that is, one
juror should not agree to answer a certain question one way if others will agree to answer
another question another way.
6. Unless otherwise instructed, you may answer a question upon the vote of ten or more jurors.
If you answer more than one question upon the vote of ten or more jurors, the same group
of at least ten of you must agree upon the answers to each of those questions.
These instructions are given you because your conduct is subject to review the same as that of the
witnesses, parties, attorneys and the judge. If it should be found that you have disregarded any of
these instructions, it will be jury misconduct and it may require another trial by another jury; then
all of our time will have been wasted.
The presiding juror or any other who observes a violation of the court's instructions shall
immediately warn the one who is violating the same and caution the juror not to do so again.
[Definitions, questions and special instructions given to the jury will be transcribed here. If
exemplary damages are sought against a defendant, the jury must unanimously find, with respect to
that defendant, (i) liability on at least one claim for actual damages that will support an award of
exemplary damage, (ii) any additional conduct, such as malice or gross negligence, required for an
award of exemplary damages, and (iii) the amount of exemplary damages to be awarded. The jury's
answers to questions regarding (ii) and (iii) must be conditioned on a unanimous finding regarding
(i), except in an extraordinary circumstance when the conditioning instruction would be erroneous.
The jury need not be unanimous in finding the amount of actual damages. Thus, if questions
regarding (ii) and (iii) are submitted to the jury regarding defendants D1 and D2, instructions in
substantially the following form must immediately precede such questions:
Preceding question (ii):
Answer Question (ii) regarding D1 only if you unanimously answered "Yes" to
Question[s] (i) regarding D1. Otherwise, do not answer Question (ii) regarding D1.
[Repeat for D2.]
You are instructed that in order to answer "Yes" to [any part of] Question (ii) , your
answer must be unanimous. You may answer "No" to [any part of] Question (ii) only
upon a vote of 10 or more jurors. Otherwise, you must not answer [that part of] Question
(ii) .
Preceding question (iii):
Answer Question (iii) regarding D1 only if you unanimously answered "Yes" to Question
(ii) regarding D1. Otherwise, do not answer Question (iii) regarding D1. [Repeat
for D2.]
You are instructed that you must unanimously agree on the amount of any award of
exemplary damages.
These examples are given by way of illustration.]
After you retire to the jury room, you will select your own presiding juror. The first thing the
presiding juror will do is to have this complete charge read aloud and then you will deliberate upon
your answers to the questions asked.
_________________
Judge Presiding
[The jury must certify to every answer in the verdict. The presiding juror may, on the jury's behalf,
make the required certificate for any answers on which the jury is unanimous. For any answers on
which the jury is not unanimous, the jurors who agree must each make the required certificate. If
none of the jury's answers must be unanimous, the following certificate should be used:
CERTIFICATE
We, the jury, have answered the above and foregoing questions as herein indicated, and herewith
return same into court as our verdict.
(To be signed by the presiding juror if unanimous.)
__________________________
Presiding Juror
__________________________
Printed Name of Presiding Juror
(To be signed by those rendering the verdict if not unanimous.)
Jurors' Signatures Jurors' Printed Names
[Insert the appropriate number of lines - 11 or 5 - for signatures and for printed names.]
If some of the jury's answers must be unanimous and others need not be, the court should obtain the
required certificate in a clear and simple manner, which will depend on the nature of the charge. The
court may consider using the following certificate at the end of the charge:
CERTIFICATE
We, the jury, have answered the above and foregoing questions as herein indicated, and herewith
return same into court as our verdict.
I certify that the jury was unanimous in answering the following questions:
Answer "All" or list questions: ______________________________________________
_____________________________
Presiding Juror
_____________________________
Printed Name of Presiding Juror
(If answers to some questions were not unanimous, the jurors who agreed to those answers must
certify as follows:)
We agree to the answers to the following questions:
List questions: ___________________________________________________________
Jurors' Signatures Jurors' Printed Names
[Insert the appropriate number of lines - 11 or 5 - for signatures and for printed names.]
The court may also determine that a clearer way of obtaining the required certificate is to segregate
the questions to which the jury's answers must be unanimous and request a certificate for each part
of the charge.]
IV.
That the following oral instructions shall be given by the court to the jury after the verdict has been
accepted by the court and before the jurors are discharged:
The court has previously instructed you that you should observe strict secrecy during the trial and
during your deliberations, and that you should not discuss this case with anyone except other jurors
during your deliberations. I am now about to discharge you. After your discharge, you are released
from your secrecy. You will then be free to discuss the case and your deliberations with anyone.
However, you are also free to decline to discuss the case and your deliberations if you wish.
After you are discharged, it is lawful for the attorneys or other persons to question you to determine
whether any of the standards for jury conduct which I have given you in the course of this trial were
violated and to ask you to give an affidavit to that effect. You are free to discuss or not to discuss
these matters and to give or not to give an affidavit.
RULE 227. CHALLENGE TO JUROR
A challenge to a particular juror is either a challenge for cause or a peremptory challenge. The court
shall decide without delay any such challenge, and if sustained, the juror shall be discharged from
the particular case. Either such challenge may be made orally on the formation of a jury to try the
case.
RULE 228. "CHALLENGE FOR CAUSE" DEFINED
A challenge for cause is an objection made to a juror, alleging some fact which by law disqualifies
him to serve as a juror in the case or in any case, or which in the opinion of the court, renders him
an unfit person to sit on the jury. Upon such challenge the examination is not confined to the answers
of the juror, but other evidence may be heard for or against the challenge.
RULE 229. CHALLENGE FOR CAUSE
When twenty-four or more jurors, if in the district court, or twelve or more, if in the county court,
are drawn, and the lists of their names delivered to the parties, if either party desires to challenge any
juror for cause, the challenge shall then be made. The name of a juror challenged and set aside for
cause shall be erased from such lists.
RULE 230. CERTAIN QUESTIONS NOT TO BE ASKED
In examining a juror, he shall not be asked a question the answer to which may show that he has been
convicted of an offense which disqualifies him, or that he stands charged by some legal accusation
with theft or any felony.
RULE 231. NUMBER REDUCED BY CHALLENGES
If the challenges reduce the number of jurors to less than twenty-four, if in the district court, or to
less than twelve, if in the county court, the court shall order other jurors to be drawn from the wheel
or from the central jury panel or summoned, as the practice may be in the particular county, and their
names written upon the list instead of those set aside for cause. Such jurors so summoned may
likewise be challenged for cause.
RULE 232. MAKING PEREMPTORY CHALLENGES
If there remain on such lists not subject to challenge for cause, twenty-four names, if in the district
court, or twelve names, if in the county court, the parties shall proceed to make their peremptory
challenges. A peremptory challenge is made to a juror without assigning any reason therefor.
RULE 233. NUMBER OF PEREMPTORY CHALLENGES
Except as provided below, each party to a civil action is entitled to six peremptory challenges in a
case tried in the district court, and to three in the county court.
Alignment of the Parties. In multiple party cases, it shall be the duty of the trial judge to
decide whether any of the litigants aligned on the same side of the docket are antagonistic
with respect to any issue to be submitted to the jury, before the exercise of peremptory
challenges.
Definition of Side. The term "side" as used in this rule is not synonymous with "party,"
"litigant," or "person." Rather, "side" means one or more litigants who have common
interests on the matters with which the jury is concerned.
Motion to Equalize. In multiple party cases, upon motion of any litigant made prior to the
exercise of peremptory challenges, it shall be the duty of the trial judge to equalize the
number of peremptory challenges so that no litigant or side is given unfair advantage as a
result of the alignment of the litigants and the award of peremptory challenges to each litigant
or side. In determining how the challenges should be allocated the court shall consider any
matter brought to the attention of the trial judge concerning the ends of justice and the
elimination of an unfair advantage.
RULE 234. LISTS RETURNED TO THE CLERK
When the parties have made or declined to make their peremptory challenges, they shall deliver their
lists to the clerk. The clerk shall, if the case be in the district court, call off the first twelve names on
the lists that have not been erased; and if the case be in the county court, he shall call off the first six
names on the lists that have not been erased; those whose names are called shall be the jury.
RULE 235. IF JURY IS INCOMPLETE
When by peremptory challenges the jury is left incomplete, the court shall direct other jurors to be
drawn or summoned to complete the jury; and such other jurors shall be impaneled as in the first
instance.
RULE 236. OATH TO JURY
The jury shall be sworn by the court or under its direction, in substance as follows: "You, and each
of you, do solemnly swear that in all cases between parties which shall be to you submitted, you will
a true verdict render, according to the law, as it may be given you in charge by the court, and to the
evidence submitted to you under the rulings of the court. So help you God."
SECTION 11. TRIAL OF CAUSES
A. Appearance and Procedure
RULE 237. APPEARANCE DAY
If a defendant, who has been duly cited, is by the citation required to answer on a day which is in
term time, such day is appearance day as to him. If he is so required to answer on a day in vacation,
he shall plead or answer accordingly, and the first day of the next term is appearance day as to him.
RULE 237a. CASES REMANDED FROM FEDERAL COURT
When any cause is removed to the Federal Court and is afterwards remanded to the state court, the
plaintiff shall file a certified copy of the order of remand with the clerk of the state court and shall
forthwith give written notice of such filing to the attorneys of record for all adverse parties. All such
adverse parties shall have fifteen days from the receipt of such notice within which to file an answer.
No default judgment shall be rendered against a party in a removed action remanded from federal
court if that party filed an answer in federal court during removal.
RULE 238. CALL OF APPEARANCE DOCKET
On the appearance day of a particular defendant and at the hour named in the citation, or as soon
thereafter as may be practicable, the court or clerk in open court shall call, in their order, all the cases
on the docket in which such day is appearance day as to any defendant, or, the court or clerk failing
therein, any such case shall be so called on request of the plaintiff's attorney.
RULE 239. JUDGMENT BY DEFAULT
Upon such call of the docket, or at any time after a defendant is required to answer, the plaintiff may
in term time take judgment by default against such defendant if he has not previously filed an
answer, and provided that the citation with the officer's return thereon shall have been on file with
the clerk for the length of time required by Rule 107.
RULE 239a. NOTICE OF DEFAULT JUDGMENT
At or immediately prior to the time an interlocutory or final default judgment is rendered, the party
taking the same or his attorney shall certify to the clerk in writing the last known mailing address of
the party against whom the judgment is taken, which certificate shall be filed among the papers in
the cause. Immediately upon the signing of the judgment, the clerk shall mail written notice thereof
to the party against whom the judgment was rendered at the address shown in the certificate, and
note the fact of such mailing on the docket. The notice shall state the number and style of the case,
the court in which the case is pending, the names of the parties in whose favor and against whom the
judgment was rendered, and the date of the signing of the judgment. Failure to comply with the
provisions of this rule shall not affect the finality of the judgment.
RULE 240. WHERE ONLY SOME ANSWER
Where there are several defendants, some of whom have answered or have not been duly served and
some of whom have been duly served and have made default, an interlocutory judgment by default
may be entered against those who have made default, and the cause may proceed or be postponed
as to the others.
RULE 241. ASSESSING DAMAGES ON LIQUIDATED DEMANDS
When a judgment by default is rendered against the defendant, or all of several defendants, if the
claim is liquidated and proved by an instrument in writing, the damages shall be assessed by the
court, or under its direction, and final judgment shall be rendered therefor, unless the defendant shall
demand and be entitled to a trial by jury.
RULE 243. UNLIQUIDATED DEMANDS
If the cause of action is unliquidated or be not proved by an instrument in writing, the court shall
hear evidence as to damages and shall render judgment therefor, unless the defendant shall demand
and be entitled to a trial by jury in which case the judgment by default shall be noted, a writ of
inquiry awarded, and the cause entered on the jury docket.
RULE 244. ON SERVICE BY PUBLICATION
Where service has been made by publication, and no answer has been filed nor appearance entered
within the prescribed time, the court shall appoint an attorney to defend the suit in behalf of the
defendant, and judgment shall be rendered as in other cases; but, in every such case a statement of
the evidence, approved and signed by the judge, shall be filed with the papers of the cause as a part
of the record thereof. The court shall allow such attorney a reasonable fee for his services, to be
taxed as part of the costs.
RULE 245. ASSIGNMENT OF CASES FOR TRIAL
The court may set contested cases on written request of any party, or on the court's own motion, with
reasonable notice of not less than forty-five days to the parties of a first setting for trial, or by
agreement of the parties; provided, however, that when a case previously has been set for trial, the
Court may reset said contested case to a later date on any reasonable notice to the parties or by
agreement of the parties. Non-contested cases may be tried or disposed of at any time whether set
or not, and may be set at any time for any other time.
A request for trial setting constitutes a representation that the requesting party reasonably and in
good faith expects to be ready for trial by the date requested, but no additional representation
concerning the completion of pretrial proceedings or of current readiness for trial shall be required
in order to obtain a trial setting in a contested case.
RULE 246. CLERK TO GIVE NOTICE OF SETTINGS
The clerk shall keep a record in his office of all cases set for trial, and it shall be his duty to inform
any non-resident attorney of the date of setting of any case upon request by mail from such attorney,
accompanied by a return envelope properly addressed and stamped. Failure of the clerk to furnish
such information on proper request shall be sufficient ground for continuance or for a new trial when
it appears to the court that such failure has prevented the attorney from preparing or presenting his
claim or defense.
RULE 247. TRIED WHEN SET
Every suit shall be tried when it is called, unless continued or postponed to a future day or placed
at the end of the docket to be called again for trial in its regular order. No cause which has been set
upon the trial docket of the court shall be taken from the trial docket for the date set except by
agreement of the parties or for good cause upon motion and notice to the opposing party.
RULE 248. JURY CASES
When a jury has been demanded, questions of law, motions, exceptions to pleadings, and other
unresolved pending matters shall, as far as practicable, be heard and determined by the court before
the trial commences, and jurors shall be summoned to appear on the day so designated.
RULE 249. CALL OF NON-JURY DOCKET
The non-jury docket shall be taken up at such times as not unnecessarily to interfere with the
dispatch of business on the jury docket.
SECTION 11. TRIAL OF CAUSES
B. Continuance and Change of Venue
RULE 251. CONTINUANCE
No application for a continuance shall be heard before the defendant files his defense, nor shall any
continuance be granted except for sufficient cause supported by affidavit, or by consent of the
parties, or by operation of law.
RULE 252. APPLICATION FOR CONTINUANCE
If the ground of such application be the want of testimony, the party applying therefor shall make
affidavit that such testimony is material, showing the materiality thereof, and that he has used due
diligence to procure such testimony, stating such diligence, and the cause of failure, if known; that
such testimony cannot be procured from any other source; and, it if be for the absence of a witness,
he shall state the name and residence of the witness, and what he expects to prove by him; and also
state that the continuance is not sought for delay only, but that justice may be done; provided that,
on a first application for a continuance, it shall not be necessary to show that the absent testimony
cannot be procured from any other source.
The failure to obtain the deposition of any witness residing within 100 miles of the courthouse or
the county in which the suit is pending shall not be regarded as want of diligence when diligence has
been used to secure the personal attendance of such witness under the rules of law, unless by reason
of age, infirmity or sickness, or official duty, the witness will be unable to attend the court, or unless
such witness is about to leave, or has left, the State or county in which the suit is pending and will
not probably be present at the trial.
RULE 253. ABSENCE OF COUNSEL AS GROUND FOR CONTINUANCE
Except as provided elsewhere in these rules, absence of counsel will not be good cause for a
continuance or postponement of the cause when called for trial, except it be allowed in the discretion
of the court, upon cause shown or upon matters within the knowledge or information of the judge
to be stated on the record.
RULE 254. ATTENDANCE ON LEGISLATURE
In all civil actions, including matters of probate, and in all matters ancillary to such suits which
require action by or the attendance of an attorney, including appeals but excluding temporary
restraining orders, at any time within thirty days of a date when the legislature is to be in session, or
at any time the legislature is in session, or when the legislature sits as a Constitutional Convention,
it shall be mandatory that the court continue the cause if it shall appear to the court, by affidavit, that
any party applying for continuance, or any attorney for any party to the cause, is a member of either
branch of the legislature, and will be or is in actual attendance on a session of the same. If the
member of the legislature is an attorney for a party to the cause, his affidavit shall contain a
declaration that it is his intention to participate actively in the preparation and/or presentation of the
case. Where a party to any cause, or an attorney for any party to a cause, is a member of the
legislature, his affidavit need not be corroborated. On the filing of such affidavit, the court shall
continue the cause until thirty days after adjournment of the legislature and the affidavit shall be
proof of the necessity for the continuance, and the continuance shall be deemed one of right and shall
not be charged against the movant upon any subsequent application for continuance.
The right to a continuance shall be mandatory, except only where the attorney was employed within
ten days of the date the suit is set for trial, the right to continuance shall be discretionary.
RULE 255. CHANGE OF VENUE BY CONSENT
Upon the written consent of the parties filed with the papers of the cause, the court, by an order
entered on the minutes, may transfer the same for trial to the court of any other county having
jurisdiction of the subject matter of such suit.
RULE 257. GRANTED ON MOTION
A change of venue may be granted in civil causes upon motion of either party, supported by his own
affidavit and the affidavit of at least three credible persons, residents of the county in which the suit
is pending, for any following cause:
(a) That there exists in the county where the suit is pending so great a prejudice against
him that he cannot obtain a fair and impartial trial.
(b) That there is a combination against him instigated by influential persons, by reason
of which he cannot expect a fair and impartial trial.
(c) That an impartial trial cannot be had in the county where the action is pending.
(d) For other sufficient cause to be determined by the court.
RULE 258. SHALL BE GRANTED
Where such motion to transfer venue is duly made, it shall be granted, unless the credibility of those
making such application, or their means of knowledge or the truth of the facts set out in said
application are attacked by the affidavit of a credible person; when thus attacked, the issue thus
formed shall be tried by the judge; and the application either granted or refused. Reasonable
discovery in support of, or in opposition to, the application shall be permitted, and such discovery
as is relevant, including deposition testimony on file, may be attached to, or incorporated by
reference in, the affidavit of a party, a witness, or an attorney who has knowledge of such discovery.
RULE 259. TO WHAT COUNTY
If the motion under Rule 257 is granted, the cause shall be removed:
(a) If from a district court, to any county of proper venue in the same or an adjoining
district;
(b) If from a county court, to any adjoining county of proper venue;
(c) If (a) or (b) are not applicable, to any county of proper venue;
(d) If a county of proper venue (other than the county of suit) cannot be found, then if
from
(1) A district court, to any county in the same or an adjoining district or to any
district where an impartial trial can be had;
(2) A county court, to any adjoining county or to any district where an impartial
trial can be had; but the parties may agree that venue shall be changed to
some other county, and the order of the court shall conform to such
agreement.
RULE 261. TRANSCRIPT ON CHANGE
When a change of venue has been granted, the clerk shall immediately make out a correct transcript
of all the orders made in said cause, certifying thereto officially under the seal of the court, and send
the same, with the original papers in the cause, to the clerk of the court to which the venue has been
changed.
SECTION 11. TRIAL OF CAUSES
C. The Trial
RULE 262. TRIAL BY THE COURT
The rules governing the trial of causes before a jury shall govern in trials by the court in so far as
applicable.
RULE 263. AGREED CASE
Parties may submit matters in controversy to the court upon an agreed statement of facts filed with
the clerk, upon which judgment shall be rendered as in other cases; and such agreed statement signed
and certified by the court to be correct and the judgment rendered thereon shall constitute the record
of the cause.
RULE 264. VIDEOTAPE TRIAL
By agreement of the parties, the trial court may allow that all testimony and such other evidence as
may be appropriate be presented at trial by videotape. The expenses of such videotape recordings
shall be taxed as costs. If any party withdraws agreement to a videotape trial, the videotape costs that
have accrued will be taxed against the party withdrawing from the agreement.
RULE 265. ORDER OF PROCEEDINGS ON TRIAL BY JURY
The trial of cases before a jury shall proceed in the following order unless the court should, for good
cause stated in the record, otherwise direct:
(a) The party upon whom rests the burden of proof on the whole case shall state to the
jury briefly the nature of his claim or defense and what said party expects to prove
and the relief sought. Immediately thereafter, the adverse party may make a similar
statement, and intervenors and other parties will be accorded similar rights in the
order determined by the court.
(b) The party upon whom rests the burden of proof on the whole case shall then
introduce his evidence.
(c) The adverse party shall briefly state the nature of his claim or defense and what said
party expects to prove and the relief sought unless he has already done so.
(d) He shall then introduce his evidence.
(e) The intervenor and other parties shall make their statement, unless they have already
done so, and shall introduce their evidence.
(f) The parties shall then be confined to rebutting testimony on each side.
(g) But one counsel on each side shall examine and cross-examine the same witness,
except on leave granted.
RULE 266. OPEN AND CLOSE - ADMISSION
Except as provided in Rule 269 the plaintiff shall have the right to open and conclude both in
adducing his evidence and in the argument, unless the burden of proof on the whole case under the
pleadings rests upon the defendant, or unless the defendant or all of the defendants, if there should
be more than one, shall, after the issues of fact are settled and before the trial commences, admit that
the plaintiff is entitled to recover as set forth in the petition, except so far as he may be defeated, in
whole or in part, by the allegations of the answer constituting a good defense, which may be
established on the trial; which admission shall be entered of record, whereupon the defendant, or the
defendants, if more than one, shall have the right to open and conclude in adducing the evidence and
in the argument of the cause. The admission shall not serve to admit any allegation which is
inconsistent with such defense, which defense shall be one that defendant has the burden of
establishing, as for example, and without excluding other defenses: accord and satisfaction, adverse
possession, arbitration and award, contributory negligence, discharge in bankruptcy, duress, estoppel,
failure of consideration, fraud, release, res judicata, statute of frauds, statute of limitations, waiver,
and the like.
RULE 267. WITNESSES PLACED UNDER RULE
a. At the request of either party, in a civil case, the witnesses on both sides shall be sworn and
removed out of the courtroom to some place where they cannot hear the testimony as
delivered by any other witness in the cause. This is termed placing witnesses under the rule.
b. This rule does not authorize exclusion of (1) a party who is a natural person or the spouse of
such natural person, or (2) an officer or employee of a party that is not a natural person and
who is designated as its representative by its attorney, or (3) a person whose presence is
shown by a party to be essential to the presentation of the cause.
c. If any party be absent, the court in its discretion may exempt from the rule a representative
of such party.
d. Witnesses, when placed under Rule 614 of the Texas Rules of Civil Evidence, shall be
instructed by the court that they are not to converse with each other or with any other person
about the case other than the attorneys in the case, except by permission of the court, and that
they are not to read any report of or comment upon the testimony in the case while under the
rule.
e. Any witness or other person violating such instructions may be punished for contempt of
court.
RULE 268. MOTION FOR INSTRUCTED VERDICT
A motion for directed verdict shall state the specific grounds therefor.
RULE 269. ARGUMENT
(a) After the evidence is concluded and the charge is read, the parties may argue the case to the
jury. The party having the burden of proof on the whole case, or on all matters which are
submitted by the charge, shall be entitled to open and conclude the argument; where there
are several parties having separate claims or defenses, the court shall prescribe the order of
argument between them.
(b) In all arguments, and especially in arguments on the trial of the case, the counsel opening
shall present his whole case as he relies on it, both of law and facts, and shall be heard in the
concluding argument only in reply to the counsel on the other side.
(c) Counsel for an intervenor shall occupy the position in the argument assigned by the court
according to the nature of the claim.
(d) Arguments on questions of law shall be addressed to the court, and counsel should state the
substance of the authorities referred to without reading more from books than may be
necessary to verify the statement. On a question on motions, exceptions to the evidence, and
other incidental matters, the counsel will be allowed only such argument as may be necessary
to present clearly the question raised, and refer to authorities on it, unless further discussion
is invited by the court.
(e) Arguments on the facts should be addressed to the jury, when one is impaneled in a case that
is being tried, under the supervision of the court. Counsel shall be required to confine the
argument strictly to the evidence and to the arguments of opposing counsel. Mere personal
criticism by counsel upon each other shall be avoided, and when indulged in shall be
promptly corrected as a contempt of court.
(f) Side-bar remarks, and remarks by counsel of one side, not addressed to the court, while the
counsel on the other side is examining a witness or arguing any question to the court, or
addressing the jury, will be rigidly repressed by the court.
(g) The court will not be required to wait for objections to be made when the rules as to
arguments are violated; but should they not be noticed and corrected by the court, opposing
counsel may ask leave of the court to rise and present his point of objection. But the court
shall protect counsel from any unnecessary interruption made on frivolous and unimportant
grounds.
(h) It shall be the duty of every counsel to address the court from his place at the bar, and in
addressing the court to rise to his feet; and while engaged in the trial of a case he shall remain
at his place in the bar.
RULE 270. ADDITIONAL TESTIMONY
When it clearly appears to be necessary to the due administration of justice, the court may permit
additional evidence to be offered at any time; provided that in a jury case no evidence on a
controversial matter shall be received after the verdict of the jury.
SECTION 11. TRIAL OF CAUSES
D. Charge to the Jury
RULE 271. CHARGE TO THE JURY
Unless expressly waived by the parties, the trial court shall prepare and in open court deliver a
written charge to the jury.
RULE 272. REQUISITES
The charge shall be in writing, signed by the court, and filed with the clerk, and shall be a part of the
record of the cause. It shall be submitted to the respective parties or their attorneys for their
inspection, and a reasonable time given them in which to examine and present objections thereto
outside the presence of the jury, which objections shall in every instance be presented to the court
in writing, or be dictated to the court reporter in the presence of the court and opposing counsel,
before the charge is read to the jury. All objections not so presented shall be considered as waived.
The court shall announce its rulings thereon before reading the charge to the jury and shall endorse
the rulings on the objections if written or dictate same to the court reporter in the presence of
counsel. Objections to the charge and the court's rulings thereon may be included as a part of any
transcript or statement of facts on appeal and, when so included in either, shall constitute a sufficient
bill of exception to the rulings of the court thereon. It shall be presumed, unless otherwise noted in
the record, that the party making such objections presented the same at the proper time and excepted
to the ruling thereon.
RULE 273. JURY SUBMISSIONS
Either party may present to the court and request written questions, definitions, and instructions to
be given to the jury; and the court may give them or a part thereof, or may refuse to give them, as
may be proper. Such requests shall be prepared and presented to the court and submitted to opposing
counsel for examination and objection within a reasonable time after the charge is given to the
parties or their attorneys for examination. A request by either party for any questions, definitions,
or instructions shall be made separate and apart from such party's objections to the court's charge.
RULE 274. OBJECTIONS AND REQUESTS
A party objecting to a charge must point out distinctly the objectionable matter and the grounds of
the objection. Any complaint as to a question, definition, or instruction, on account of any defect,
omission, or fault in pleading, is waived unless specifically included in the objections. When the
complaining party's objection, or requested question, definition, or instruction is, in the opinion of
the appellate court, obscured or concealed by voluminous unfounded objections, minute
differentiations or numerous unnecessary requests, such objection or request shall be untenable. No
objection to one part of the charge may be adopted and applied to any other part of the charge by
reference only.
RULE 275. CHARGE READ BEFORE ARGUMENT
Before the argument is begun, the trial court shall read the charge to the jury in the precise words in
which it was written, including all questions, definitions, and instructions which the court may give.
RULE 276. REFUSAL OR MODIFICATION
When an instruction, question, or definition is requested and the provisions of the law have been
complied with and the trial judge refuses the same, the judge shall endorse thereon "Refused," and
sign the same officially. If the trial judge modifies the same the judge shall endorse thereon
"Modified as follows: (stating in what particular the judge has modified the same) and given, and
exception allowed" and sign the same officially. Such refused or modified instruction, question, or
definition, when so endorsed shall constitute a bill of exceptions, and it shall be conclusively
presumed that the party asking the same presented it at the proper time, excepted to its refusal or
modification, and that all the requirements of law have been observed, and such procedure shall
entitle the party requesting the same to have the action of the trial judge thereon reviewed without
preparing a formal bill of exceptions.
RULE 277. SUBMISSION TO THE JURY
In all jury cases the court shall, whenever feasible, submit the cause upon broad-form questions. The
court shall submit such instructions and definitions as shall be proper to enable the jury to render a
verdict.
Inferential rebuttal questions shall not be submitted in the charge. The placing of the burden of proof
may be accomplished by instructions rather than by inclusion in the question.
In any cause in which the jury is required to apportion the loss among the parties the court shall
submit a question or questions inquiring what percentage, if any, of the negligence or causation, as
the case may be, that caused the occurrence or injury in question is attributable to each of the persons
found to have been culpable. The court shall also instruct the jury to answer the damage question or
questions without any reduction because of the percentage of negligence or causation, if any, of the
person injured. The court may predicate the damage question or questions upon affirmative findings
of liability.
The court may submit a question disjunctively when it is apparent from the evidence that one or the
other of the conditions or facts inquired about necessarily exists.
The court shall not in its charge comment directly on the weight of the evidence or advise the jury
of the effect of their answers, but the court's charge shall not be objectionable on the ground that it
incidentally constitutes a comment on the weight of the evidence or advises the jury of the effect of
their answers when it is properly a part of an instruction or definition.
RULE 278. SUBMISSION OF QUESTIONS, DEFINITIONS, AND INSTRUCTIONS
The court shall submit the questions, instructions and definitions in the form provided by Rule 277,
which are raised by the written pleadings and the evidence. Except in trespass to try title, statutory
partition proceedings, and other special proceedings in which the pleadings are specially defined by
statutes or procedural rules, a party shall not be entitled to any submission of any question raised
only by a general denial and not raised by affirmative written pleading by that party. Nothing herein
shall change the burden of proof from what it would have been under a general denial. A judgment
shall not be reversed because of the failure to submit other and various phases or different shades
of the same question. Failure to submit a question shall not be deemed a ground for reversal of the
judgment, unless its submission, in substantially correct wording, has been requested in writing and
tendered by the party complaining of the judgment; provided, however, that objection to such failure
shall suffice in such respect if the question is one relied upon by the opposing party. Failure to
submit a definition or instruction shall not be deemed a ground for reversal of the judgment unless
a substantially correct definition or instruction has been requested in writing and tendered by the
party complaining of the judgment.
RULE 279. OMISSIONS FROM THE CHARGE
Upon appeal all independent grounds of recovery or of defense not conclusively established under
the evidence and no element of which is submitted or requested are waived. When a ground of
recovery or defense consists of more than one element, if one or more of such elements necessary
to sustain such ground of recovery or defense, and necessarily referable thereto, are submitted to and
found by the jury, and one or more of such elements are omitted from the charge, without request
or objection, and there is factually sufficient evidence to support a finding thereon, the trial court,
at the request of either party, may after notice and hearing and at any time before the judgment is
rendered, make and file written findings on such omitted element or elements in support of the
judgment. If no such written findings are made, such omitted element or elements shall be deemed
found by the court in such manner as to support the judgment. A claim that the evidence was legally
or factually insufficient to warrant the submission of any question may be made for the first time
after verdict, regardless of whether the submission of such question was requested by the
complainant.
SECTION 11. TRIAL OF CAUSES
E. Case to the Jury
RULE 280. PRESIDING JUROR OF JURY
Each jury shall appoint one of their body presiding juror.
RULE 281. PAPERS TAKEN TO JURY ROOM
The jury may, and on request shall, take with them in their retirement the charges and instructions,
general or special, which were given and read to them, and any written evidence, except the
depositions of witnesses, but shall not take with them any special charges which have been refused.
Where part only of a paper has been read in evidence, the jury shall not take the same with them,
unless the part so read to them is detached from that which was excluded.
RULE 282. JURY KEPT TOGETHER
The jury may either decide a case in court or retire for deliberation. If they retire, they shall be kept
together in some convenient place, under the charge of an officer, until they agree upon a verdict or
are discharged by the court; but the court in its discretion may permit them to separate temporarily
for the night and at their meals, and for other proper purposes.
RULE 283. DUTY OF OFFICER ATTENDING JURY
The officer in charge of the jury shall not make not permit any communication to be made to them,
except to inquire if they have agreed upon a verdict, unless by order of the court; and he shall not
before their verdict is rendered communicate to any person the state of their deliberations or the
verdict agreed upon.
RULE 284. JUDGE TO CAUTION JURY
If permitted to separate, either during the trial or after the case is submitted to them, the jury shall
be admonished by the court that it is their duty not to converse with, or permit themselves to be
addressed by any other person, on any subject connected with the trial.
RULE 285. JURY MAY COMMUNICATE WITH COURT
The jury may communicate with the court by making their wish known to the officer in charge, who
shall inform the court, and they may then in open court, and through their presiding juror,
communicate with the court, either verbally or in writing. If the communication is to request further
instructions, Rule 286 shall be followed.
RULE 286. JURY MY RECEIVE FURTHER INSTRUCTIONS
After having retired, the jury may receive further instructions from the court touching any matter of
law, either at their request or upon the court's own motion. For this purpose they shall appear before
the judge in open court in a body, and if the instruction is being given at their request, they shall
through their presiding juror state to the court, in writing, the particular question of law upon which
they desire further instruction. The court shall give such instruction in writing, but no instruction
shall be given except in conformity with the rules relating to the charge. Additional argument may
be allowed in the discretion of the court.
RULE 287. DISAGREEMENT AS TO EVIDENCE
If the jury disagree as to the statement of any witness, they may, upon applying to the court, have
read to them from the court reporter's notes that part of such witness' testimony on the point in
dispute; but, if there be no such reporter, or if his notes cannot be read to the jury, the court may
cause such witness to be again brought upon the stand and the judge shall direct him to repeat his
testimony as to the point in dispute, and no other, as nearly as he can in the language used on the
trial; and on their notifying the court that they disagree as to any portion of a deposition or other
paper not permitted to be carried with them in their retirement, the court may, in like manner, permit
such portion of said deposition or paper to be again read to the jury.
RULE 288. COURT OPEN FOR JURY
The court, during the deliberations of the jury, may proceed with other business or recess from time
to time, but shall be deemed open for all purposes connected with the case before the jury.
RULE 289. DISCHARGE OF JURY
The jury to whom a case has been submitted may be discharged by the court when they cannot agree
and the parties consent to their discharge, or when they have been kept together for such time as to
render it altogether improbable that they can agree, or when any calamity or accident may, in the
opinion of the court, require it, or when by sickness or other cause their number is reduced below
the number constituting the jury in such court.
The cause shall again be placed on the jury docket and shall again be set for trial as the court directs.
SECTION 11. TRIAL OF CAUSES
F. Verdict
RULE 290. DEFINITION AND SUBSTANCE
A verdict is a written declaration by a jury of its decision, comprehending the whole or all the issues
submitted to the jury, and shall be either a general or special verdict, as directed, which shall be
signed by the presiding juror of the jury.
A general verdict is one whereby the jury pronounces generally in favor of one or more parties to the
suit upon all or any of the issues submitted to it. A special verdict is one wherein the jury finds the
facts only on issues made up and submitted to them under the direction of the court.
A special verdict shall, as between the parties, be conclusive as to the facts found.
RULE 291. FORM OF VERDICT
No special form of verdict is required, and the judgment shall not be arrested or reversed for mere
want of form therein if there has been substantial compliance with the requirements of the law in
rendering a verdict.
RULE 292. VERDICT BY PORTION OF ORIGINAL JURY
(a) Except as provided in subsection (b), a verdict may be rendered in any cause by the
concurrence, as to each and all answers made, of the same ten or more members of an
original jury of twelve or of the same five or more members of an original jury of six.
However, where as many as three jurors die or be disabled from sitting and there are only
nine of the jurors remaining of an original jury of twelve, those remaining may render and
return a verdict. If less than the original twelve or six jurors render a verdict, the verdict must
be signed by each juror concurring therein.
(b) A verdict may be rendered awarding exemplary damages only if the jury was unanimous in
finding liability for and the amount of exemplary damages.
RULE 293. WHEN THE JURY AGREE
When the jury agree upon a verdict, they shall be brought into the court by the proper officer, and
they shall deliver their verdict to the clerk; and if they state that they have agreed, the verdict shall
be read aloud by the clerk. If the verdict is in proper form, no juror objects to its accuracy, no juror
represented as agreeing thereto dissents therefrom, and neither party requests a poll of the jury, the
verdict shall be entered upon the minutes of the court.
RULE 294. POLLING THE JURY
Any party shall have the right to have the jury polled. A jury is polled by reading once to the jury
collectively the general verdict, or the questions and answers thereto consecutively, and then calling
the name of each juror separately and asking the juror if it is the juror's verdict. If any juror answers
in the negative when the verdict is returned signed only by the presiding juror as a unanimous
verdict, or if any juror shown by the juror's signature to agree to the verdict should answer in the
negative, the jury shall be retired for further deliberation.
RULE 295. CORRECTION OF VERDICT
If the purported verdict is defective, the court may direct it to be reformed. If it is incomplete, or not
responsive to the questions contained in the court's charge, or the answers to the questions are in
conflict, the court shall in writing instruct the jury in open court of the nature of the incompleteness,
unresponsiveness, or conflict, provide the jury such additional instructions as may be proper, and
retire the jury for further deliberations.
SECTION 11. TRIAL OF CAUSES
G. Findings by the Court
RULE 296. REQUESTS FOR FINDINGS OF FACTS AND CONCLUSIONS OF LAW
In any case tried in the district or county court without a jury, any party may request the court to state
in writing its findings of fact and conclusions of law. Such request shall be entitled "Request for
Findings of Fact and Conclusions of Law" and shall be filed within twenty days after judgment is
signed with the clerk of the court, who shall immediately call such request to the attention of the
judge who tried the case. The party making the request shall serve it on all other parties in
accordance with Rule 21a.
RULE 297. TIME TO FILE FINDINGS OF FACT AND CONCLUSIONS OF LAW
The court shall file its findings of fact and conclusions of law within twenty days after a timely
request is filed. The court shall cause a copy of its findings and conclusions to be mailed to each
party in the suit.
If the court fails to file timely findings of fact and conclusions of law, the party making the request
shall, within thirty days after filing the original request, file with the clerk and serve on all other
parties in accordance with Rule 21a a "Notice of Past Due Findings of Fact and Conclusions of Law"
which shall be immediately called to the attention of the court by the clerk. Such notice shall state
the date the original request was filed and the date the findings and conclusions were due. Upon
filing this notice, the time for the court to file findings of fact and conclusions of law is extended to
forty days from the date the original request was filed.
RULE 298. ADDITIONAL OR AMENDED FINDINGS OF FACT AND
CONCLUSIONS OF LAW
After the court files original findings of fact and conclusions of law, any party may file with the clerk
of the court a request for specified additional or amended findings or conclusions. The request for
these findings shall be made within ten days after the filing of the original findings and conclusions
by the court. Each request made pursuant to this rule shall be served on each party to the suit in
accordance with Rule 21a.
The court shall file any additional or amended findings and conclusions that are appropriate within
ten days after such request is filed, and cause a copy to be mailed to each party to the suit. No
findings or conclusions shall be deemed or presumed by any failure of the court to make any
additional findings or conclusions.
RULE 299. OMITTED FINDINGS
When findings of fact are filed by the trial court they shall form the basis of the judgment upon all
grounds of recovery and of defense embraced therein. The judgment may not be supported upon
appeal by a presumed finding upon any ground of recovery or defense, no element of which has been
included in the findings of fact; but when one or more elements thereof have been found by the trial
court, omitted unrequested elements, when supported by evidence, will be supplied by presumption
in support of the judgment. Refusal of the court to make a finding requested shall be reviewable on
appeal.
RULE 299a. FINDINGS OF FACT TO BE SEPARATELY FILED
AND NOT RECITED IN A JUDGMENT
Findings of fact shall not be recited in a judgment. If there is a conflict between findings of fact
recited in a judgment in violation of this rule and findings of fact made pursuant to Rules 297 and
298, the latter findings will control for appellate purposes. Findings of fact shall be filed with the
clerk of the court as a document or documents separate and apart from the judgment.
SECTION 11. TRIAL OF CAUSES
H. Judgments
RULE 300. COURT TO RENDER JUDGMENT
Where a special verdict is rendered, or the conclusions of fact found by the judge are separately
stated the court shall render judgment thereon unless set aside or a new trial is granted, or judgment
is rendered notwithstanding verdict or jury finding under these rules.
RULE 301. JUDGMENTS
The judgment of the court shall conform to the pleadings, the nature of the case proved and the
verdict, if any, and shall be so framed as to give the party all the relief to which he may be entitled
either in law or equity. Provided, that upon motion and reasonable notice the court may render
judgment non obstante veredicto if a directed verdict would have been proper, and provided further
that the court may, upon like motion and notice, disregard any jury finding on a question that has no
support in the evidence. Only one final judgment shall be rendered in any cause except where it is
otherwise specially provided by law. Judgment may, in a proper case, be given for or against one or
more of several plaintiffs, and for or against one or more of several defendants or intervenors.
RULE 302. ON COUNTERCLAIM
If the defendant establishes a demand against the plaintiff upon a counterclaim exceeding that
established against him by the plaintiff, the court shall render judgment for defendant for such
excess.
RULE 303. ON COUNTERCLAIM FOR COSTS
When a counterclaim is pleaded, the party in whose favor final judgment is rendered shall also
recover the costs, unless it be made to appear on the trial that the counterclaim of the defendant was
acquired after the commencement of the suit, in which case, if the plaintiff establishes a claim
existing at the commencement of the suit, he shall recover his costs.
RULE 304. JUDGMENT UPON RECORD
Judgments rendered upon questions raised upon citations, pleadings, and all other proceedings,
constituting the record proper as known at common law, must be entered at the date of each term
when pronounced.
RULE 305. PROPOSED JUDGMENT
Any party may prepare and submit a proposed judgment to the court for signature.
Each party who submits a proposed judgment for signature shall serve the proposed judgment on all
other parties to the suit who have appeared and remain in the case, in accordance with Rule 21a.
Failure to comply with this rule shall not affect the time for perfecting an appeal.
RULE 306. RECITATION OF JUDGMENT
The entry of the judgment shall contain the full names of the parties, as stated in the pleadings, for
and against whom the judgment is rendered.
RULE 306a. PERIODS TO RUN FROM SIGNING OF JUDGMENT
1. Beginning of Periods. The date of judgment or order is signed as shown of record shall
determine the beginning of the periods prescribed by these rules for the court's plenary power
to grant a new trial or to vacate, modify, correct or reform a judgment or order and for filing
in the trial court the various documents that these rules authorize a party to file within such
periods including, but not limited to, motions for new trial, motions to modify judgment,
motions to reinstate a case dismissed for want of prosecution, motions to vacate judgment
and requests for findings of fact and conclusions of law; but this rule shall not determine
what constitutes rendition of a judgment or order for any other purpose.
2. Date to Be Shown. Judges, attorneys and clerks are directed to use their best efforts to cause
all judgments, decisions and orders of any kind to be reduced to writing and signed by the
trial judge with the date of signing stated therein. If the date of signing is not recited in the
judgment or order, it may be shown in the record by a certificate of the judge or otherwise;
provided, however, that the absence of a showing of the date in the record shall not invalidate
any judgment or order.
3. Notice of Judgment. When the final judgment or other appealable order is signed, the clerk
of the court shall immediately give notice to the parties or their attorneys of record by firstclass
mail advising that the judgment or order was signed. Failure to comply with the
provisions of this rule shall not affect the periods mentioned in paragraph (1) of this rule,
except as provided in paragraph (4).
4. No Notice of Judgment. If within twenty days after the judgment or other appealable order
is signed, a party adversely affected by it or his attorney has neither received the notice
required by paragraph (3) of this rule nor acquired actual knowledge of the order, then with
respect to that party all the periods mentioned in paragraph (1) shall begin on the date that
such party or his attorney received such notice or acquired actual knowledge of the signing,
whichever occurred first, but in no event shall such periods begin more than ninety days after
the original judgment or other appealable order was signed.
5. Motion, Notice and Hearing. In order to establish the application of paragraph (4) of this
rule, the party adversely affected is required to prove in the trial court, on sworn motion and
notice, the date on which the party or his attorney first either received a notice of the
judgment or acquired actual knowledge of the signing and that this date was more than
twenty days after the judgment was signed.
6. Nunc Pro Tunc Order. When a corrected judgment has been signed after expiration of the
court's plenary power pursuant to Rule 316, the periods mentioned in paragraph (1) of this
rule shall run from the date of signing the corrected judgment with respect of any complaint
that would not be applicable to the original document.
7. When Process Served by Publication. With respect to a motion for new trial filed more
than thirty days after the judgment was signed pursuant to Rule 329 when process has been
served by publication, the periods provided by paragraph (1) shall be computed as if the
judgment were signed on the date of filing the motion.
RULE 306c. PREMATURELY FILED DOCUMENTS
No motion for new trial or request for findings of fact and conclusions of law shall be held
ineffective because prematurely filed; but every such motion shall be deemed to have been filed on
the date of but subsequent to the time of signing of the judgment the motion assails, and every such
request for findings of fact and conclusions of law shall be deemed to have been filed on the date of
but subsequent to the time of signing of the judgment.
RULE 307. EXCEPTIONS, ETC., TRANSCRIPT
In non-jury cases, where findings of fact and conclusions of law are requested and filed, and in jury
cases, where a special verdict is returned, any party claiming that the findings of the court or the jury,
as the case may be, do not support the judgment, may have noted in the record an exception to said
judgment and thereupon take an appeal or writ of error, where such writ is allowed, without a
statement of facts or further exceptions in the transcript, but the transcript in such cases shall contain
the conclusions of law and fact or the special verdict and the judgment rendered thereon.
RULE 308. COURT SHALL ENFORCE ITS DECREES
The court shall cause its judgments and decrees to be carried into execution; and where the judgment
is for personal property, and it is shown by the pleadings and evidence and the verdict, if any, that
such property has an especial value to the plaintiff, the court may award a special writ for the seizure
and delivery of such property to the plaintiff; and in such case may enforce its judgment by
attachment, fine and imprisonment.
RULE 308a. IN SUITS AFFECTING THE PARENT-CHILD RELATIONSHIP
When the court has ordered child support or possession of or access to a child and it is claimed that
the order has been violated, the person claiming that a violation has occurred shall make this known
to the court. The court may appoint a member of the bar to investigate the claim to determine
whether there is reason to believe that the court order has been violated. If the attorney in good faith
believes that the order has been violated, the attorney shall take the necessary action as provided
under Chapter 14, Family Code. On a finding of a violation, the court may enforce its order as
provided in Chapter 14, Family Code.
Except by order of the court, no fee shall be charged by or paid to the attorney representing the
claimant. If the court determines that an attorney's fee should be paid, the fee shall be adjudged
against the party who violated the court's order. The fee may be assessed as costs of court, or
awarded by judgment, or both.
RULE 309. IN FORECLOSURE PROCEEDINGS
Judgments for the foreclosure of mortgages and other liens shall be that the plaintiff recover his debt,
damages and costs, with a foreclosure of the plaintiff's lien on the property subject thereto, and,
except in judgments against executors, administrators and guardians, that an order of sale shall issue
to any sheriff or any constable within the State of Texas, directing him to seize and sell the same as
under execution, in satisfaction of the judgment; and, if the property cannot be found, or if the
proceeds of such sale be insufficient to satisfy the judgment, then to take the money or any balance
thereof remaining unpaid, out of any other property of the defendant, as in case of ordinary
executions.
RULE 310. WRIT OF POSSESSION
When an order foreclosing a lien upon real estate is made in a suit having for its object the
foreclosure of such lien, such order shall have all the force and effect of a writ of possession as
between the parties to the foreclosure suit and any person claiming under the defendant to such suit
by any right acquired pending such suit; and the court shall so direct in the judgment providing for
the issuance of such order. The sheriff or other officer executing such order of sale shall proceed by
virtue of such order of sale to place the purchaser of the property sold thereunder in possession
thereof within thirty days after the day of sale.
RULE 311. ON APPEAL FROM PROBATE COURT
Judgment on appeal or certiorari from any county court sitting in probate shall be certified to such
county court for observance.
RULE 312. ON APPEAL FROM JUSTICE COURT
Judgment on appeal or certiorari from a justice court shall be enforced by the county or district court
rendering the judgment.
RULE 313. AGAINST EXECUTORS, ETC.
A judgment for the recovery of money against an executor, administrator or guardian, as such, shall
state that it is to be paid in the due course of administration. No execution shall issue thereon, but
it shall be certified to the county court, sitting in matters of probate, to be there enforced in
accordance with law, but judgment against an executor appointed and acting under a will dispensing
with the action of the county court in reference to such estate shall be enforced against the property
of the testator in the hands of such executor, by execution, as in other cases.
RULE 314. CONFESSION OF JUDGMENT
Any person against whom a cause of action exists may, without process, appear in person or by
attorney, and confess judgment therefor in open court as follows:
(a) A petition shall be filed and the justness of the debt or cause of action be sworn to
by the person in whose favor the judgment is confessed.
(b) If the judgment is confessed by attorney, the power of attorney shall be filed and its
contents be recited in the judgment.
(c) Every such judgment duly made shall operate as a release of all errors in the record
thereof, but such judgment may be impeached for fraud or other equitable cause.
SECTION 11. TRIAL OF CAUSES
I. Remittitur and Correction
RULE 315. REMITTITUR
Any party in whose favor a judgment has been rendered may remit any part thereof in open court,
or by executing and filing with the clerk a written remittitur signed by the party or the party's attorney
of record, and duly acknowledged by the party or the party's attorney. Such remittitur shall be a part
of the record of the cause. Execution shall issue for the balance only of such judgment.
RULE 316. CORRECTION OF CLERICAL MISTAKES IN JUDGMENT RECORD
Clerical mistakes in the record of any judgment may be corrected by the judge in open court
according to the truth or justice of the case after notice of the motion therefor has been given to the
parties interested in such judgment, as provided in Rule 21a, and thereafter the execution shall
conform to the judgment as amended.
SECTION 11. TRIAL OF CAUSES
J. New Trials
RULE 320. MOTION AND ACTION OF COURT THEREON
New trials may be granted and judgment set aside for good cause, on motion or on the court's own
motion on such terms as the court shall direct. New trials may be granted when the damages are
manifestly too small or too large. When it appears to the court that a new trial should be granted on
a point or points that affect only a part of the matters in controversy and that such part is clearly
separable without unfairness to the parties, the court may grant a new trial as to that part only,
provided that a separate trial on unliquidated damages alone shall not be ordered if liability issues
are contested. Each motion for new trial shall be in writing and signed by the party or his attorney.
RULE 321. FORM
Each point relied upon in a motion for new trial or in arrest of judgment shall briefly refer to that part
of the ruling of the court, charge given to the jury, or charge refused, admission or rejection of
evidence, or other proceedings which are designated to be complained of, in such a way that the
objection can be clearly identified and understood by the court.
RULE 322. GENERALITY TO BE AVOIDED
Grounds of objections couched in general terms - as that the court erred in its charge, in sustaining
or overruling exceptions to the pleadings, and in excluding or admitting evidence, the verdict of the
jury is contrary to law, and the like - shall not be considered by the court.
RULE 324. PREREQUISITES OF APPEAL
(a) Motion for New Trial Not Required. A point in a motion for new trial is not a prerequisite
to a complaint on appeal in either a jury or a nonjury case, except as provided in subdivision
(b).
(b) Motion for New Trial Required. A point in a motion for new trial is a prerequisite to the
following complaints on appeal:
(1) A complaint on which evidence must be heard such as one of jury misconduct or
newly discovered evidence or failure to set aside a judgment by default;
(2) A complaint of factual insufficiency of the evidence to support a jury finding;
(3) A complaint that a jury finding is against the overwhelming weight of the evidence;
(4) A complaint of inadequacy or excessiveness of the damages found by the jury; or
(5) Incurable jury argument if not otherwise ruled on by the trial court.
(c) Judgment Notwithstanding Findings; Cross-Points. When judgment is rendered non
obstante verdicto or notwithstanding the findings of a jury on one or more questions, the
appellee may bring forward by cross-point contained in his brief filed in the Court of Appeals
any ground which would have vitiated the verdict or would have prevented an affirmance of
the judgment had one been rendered by the trial court in harmony with the verdict, including
although not limited to the ground that one or more of the jury's findings have insufficient
support in the evidence or are against the overwhelming preponderance of the evidence as
a matter of fact, and the ground that the verdict and judgment based thereon should be set
aside because of improper argument of counsel.
The failure to bring forward by cross-points such grounds as would vitiate the verdict shall
be deemed a waiver thereof; provided, however, that if a cross-point is upon a ground which
requires the taking of evidence in addition to that adduced upon the trial of the cause, it is
not necessary that the evidentiary hearing be held until after the appellate court determines
that the cause be remanded to consider such a cross-point.
RULE 326. NOT MORE THAN TWO
Not more than two new trials shall be granted either party in the same cause because of insufficiency
or weight of the evidence.
RULE 327. FOR JURY MISCONDUCT
a. When the ground of a motion for new trial, supported by affidavit, is misconduct of the jury
or of the officer in charge of them, or because of any communication made to the jury, or that
a juror gave an erroneous or incorrect answer on voir dire examination, the court shall hear
evidence thereof from the jury or others in open court, and may grant a new trial if such
misconduct proved, or the communication made, or the erroneous or incorrect answer on voir
dire examination, be material, and if it reasonably appears from the evidence both on the
hearing of the motion and the trial of the case and from the record as a whole that injury
probably resulted to the complaining party.
b. A juror may not testify as to any matter or statement occurring during the course of the jury's
deliberations or to the effect of anything upon his or any other juror's mind or emotions as
influencing him to assent to or dissent from the verdict concerning his mental processes in
connection therewith, except that a juror may testify whether any outside influence was
improperly brought to bear upon any juror. Nor may his affidavit or evidence of any
statement by him concerning a matter about which he would be precluded from testifying be
received for these purposes.
RULE 329. MOTION FOR NEW TRIAL ON JUDGMENT FOLLOWING
CITATION BY PUBLICATION
In cases in which judgment has been rendered on service of process by publication, when the
defendant has not appeared in person or by attorney of his own selection:
(a) The court may grant a new trial upon petition of the defendant showing good cause,
supported by affidavit, filed within two years after such judgment was signed. The
parties adversely interested in such judgment shall be cited as in other cases.
(b) Execution of such judgment shall not be suspended unless the party applying therefor
shall give a good and sufficient bond payable to the plaintiff in the judgment, in an
amount fixed in accordance with Appellate Rule 47 relating to supersedeas bonds,
to be approved by the clerk, and conditioned that the party will prosecute his petition
for new trial to effect and will perform such judgment as may be rendered by the
court should its decision be against him.
(c) If property has been sold under the judgment and execution before the process was
suspended, the defendant shall not recover the property so sold, but shall have
judgment against the plaintiff in the judgment for the proceeds of such sale.
(d) If the motion is filed more than thirty days after the judgment was signed, the time
period shall be computed pursuant to Rule 306a(7).
RULE 329a. COUNTY COURT CASES
If a case or other matter is on trial or in the process of hearing when the term of the county court
expires, such trial, hearing or other matter may be proceeded with at the next or any subsequent term
of court and no motion or plea shall be considered as waived or overruled, because not acted upon
at the term of court at which it was filed, but may be acted upon at any time the judge may fix or at
which it may have been postponed or continued by agreement of the parties with leave of the court.
This subdivision is not applicable to original or amended motions for new trial which are governed
by Rule 329b.
RULE 329b. TIME FOR FILING MOTIONS
The following rules shall be applicable to motions for new trial and motions to modify, correct, or
reform judgments (other than motions to correct the record under Rule 316) in all district and county
courts:
(a) A motion for new trial, if filed, shall be filed prior to or within thirty days after the
judgment or other order complained of is signed.
(b) One or more amended motions for new trial may be filed without leave of court
before any preceding motion for new trial filed by the movant is overruled and within
thirty days after the judgment or other order complained of is signed.
(c) In the event an original or amended motion for new trial or a motion to modify,
correct or reform a judgment is not determined by written order signed within
seventy-five days after the judgment was signed, it shall be considered overruled by
operation of law on expiration of that period.
(d) The trial court, regardless of whether an appeal has been perfected, has plenary power
to grant a new trial or to vacate, modify, correct, or reform the judgment within thirty
days after the judgment is signed.
(e) If a motion for new trial is timely filed by any party, the trial court, regardless of
whether an appeal has been perfected, has plenary power to grant a new trial or to
vacate, modify, correct, or reform the judgment until thirty days after all such timelyfiled
motions are overruled, either by a written and signed order or by operation of
law, whichever occurs first.
(f) On expiration of the time within which the trial court has plenary power, a judgment
cannot be set aside by the trial court except by bill of review for sufficient cause,
filed within the time allowed by law; provided that the court may at any time correct
a clerical error in the record of a judgment and render judgment nunc pro tunc under
Rule 316, and may also sign an order declaring a previous judgment or order to be
void because signed after the court's plenary power had expired.
(g) A motion to modify, correct, or reform a judgment (as distinguished from motion to
correct the record of a judgment under Rule 316), if filed, shall be filed and
determined within the time prescribed by this rule for a motion for new trial and shall
extend the trial court's plenary power and the time for perfecting an appeal in the
same manner as a motion for new trial. Each such motion shall be in writing and
signed by the party or his attorney and shall specify the respects in which the
judgment should be modified, corrected, or reformed. The overruling of such a
motion shall not preclude the filing of a motion for new trial, nor shall the overruling
of a motion for new trial preclude the filing of a motion to modify, correct, or reform.
(h) If a judgment is modified, corrected or reformed in any respect, the time for appeal
shall run from the time the modified, corrected, or reformed judgment is signed, but
if a correction is made pursuant to Rule 316 after expiration of the period of plenary
power provided by this rule, no complaint shall be heard on appeal that could have
been presented in an appeal from the original judgment.
SECTION 11. TRIAL OF CAUSES
K. Certain District Courts
RULE 330. RULES OF PRACTICE AND PROCEDURE IN
CERTAIN DISTRICT COURTS
The following rules of practice and procedure shall govern and be followed in all civil actions in
district courts in counties where the only district court of said county vested with civil jurisdiction,
or all the district courts thereof having civil jurisdiction, have successive terms in said county
throughout the year, without more than two days intervening between any of such terms, whether
or not any one or more of such district courts include one or more other counties within its
jurisdiction.
(a) Appealed Cases. In cases appealed to said district courts from inferior courts, the
appeal, including transcript, shall be filed in the district court within thirty (30) days
after the rendition of the judgment or order appealed from, and the appellee shall
enter his appearance on the docket or answer to said appeal on or before ten o'clock
a.m. of the Monday next after the expiration of twenty (20) days from the date the
appeal is filed in the district court.
(b) Postponement or Continuance. Cases may be postponed or continued by
agreement with the approval of he court, or upon the court's own motion or for cause.
When a case is called for trial and only one party is ready, the court may for good
cause either continue the case for the term or postpone and reset it for a later day in
the same or succeeding term.
(c) Cases May Be Reset. A case that is set and reached for trial may be postponed for
a later day in the term or continued and reset for a day certain in the succeeding term
on the same grounds as an application for continuance would be granted in other
district courts. After any case has been set and reached in its due order and called for
trial two (2) or more times and not tried, the court may dismiss the same unless the
parties agree to a postponement or continuance but the court shall respect written
agreements of counsel for postponement and continuance if filed in the case when or
before it is called for trial unless to do so will unreasonably delay or interfere with
other business of the court.
(d) Exchange and Transfer. Where in such county there are two or more district courts
having civil jurisdiction, the judges of such courts may, in their discretion, exchange
benches or districts from time to time, and may transfer cases and other proceedings
from one court to another, and any of them may in his own courtroom try and
determine any case or proceeding pending in another court without having the case
transferred, or may sit in any other of said courts and there hear and determine any
case there pending, and every judgment and order shall be entered in the minutes of
the court in which the case is pending and at the time the judgment or order is
rendered, and two (2) or more judges may try different cases in the same court at the
same time, and each may occupy his own courtroom or the room of any other court.
The judge of any such court may issue restraining orders and injunctions returnable
to any other judge or court, and any judge may transfer any case or proceeding
pending in his court to any other of said courts, and the judge of any court to which
a case or proceeding is transferred shall receive and try the same, and in turn shall
have power in his discretion to transfer any such case to any other of said courts and
any other judge may in his courtroom try any case pending in any other of such
courts.
(e) Cases Transferred to Judges Not Occupied. Where in such counties there are two
or more district courts having civil jurisdiction, when the judge of any such court
shall become disengaged, he shall notify the presiding judge, and the presiding judge
shall transfer to the court of the disengaged judge the next case which is ready for
trial in any of said courts. Any judge not engaged in his own court may try any case
in any other court.
(f) Judge May Hear Only Part of Case. Where in such counties there are two or more
district courts having civil jurisdiction, any judge may hear any part of any case or
proceeding pending in any of said courts and determine the same, or may hear and
determine any question in any case, and any other judge may complete the hearing
and render judgment in the case.
(g) Any Judge May Hear Dilatory Pleas. Where in such county there are two or more
district courts having civil jurisdiction, any judge may hear and determine motions,
petitions for injunction, applications for appointment of receivers, interventions,
pleas of privilege, pleas in abatement, all dilatory pleas and special exceptions,
motions for a new trial and all preliminary matters, questions and proceedings and
may enter judgment or order thereon in the court in which the case is pending without
having the case transferred to the court of the judge acting, and the judge in whose
court the case is pending may thereafter proceed to hear, complete and determine the
case or other matter, or any part thereof, and render final judgment therein. Any
judgment rendered or action taken by any judge in any of said courts in the county
shall be valid and binding.
(h) Acts in Succeeding Terms. If a case or other matter is on trial, or in the process of
hearing when the term of court expires, such trial, hearing or other matter may be
proceeded with at the next or any subsequent term of court and no motion or plea
shall be considered as waived or overruled, because not acted upon at the term of
court at which it was filed, but may be acted upon at any time the judge may fix or
at which it may have been postponed or continued by agreement of the parties with
leave of the court. This subdivision is not applicable to original or amended motions
for new trial which are governed by Rule 329b.

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