Introduction to Texas Courts (Part I)

Question 1

Plaintiff Must Decide…

Answer 1

A. In which court to Bring Action
*Determine who has SMJD over dispute
*If non-res, PJD must be considered
B. Venue
*In Which of the 254 Tx counties suit must be filed in
C. File Pleadings “P’s Original Petition”
*Identifies D
*Gives D notice of claim
*Rule 47b requires it to state that damages sought are within the JD limits of the court
*can bring multiple claims against multiple parties
*D is under power once Served

Question 2

D must respond (Petition and Answer)

Answer 2

• Usually denying allegations
• Can ask P to plead more specifically
• Can ask for Special exception
• Contest SMJD, PJD, or Venue (use special pleadings

Question 3

Two goals of lawyers

Answer 3

Win cases, record errors

Question 4

criteria for overturning a jmt

Answer 4

a. only /fair/ trial, not /imperfect/ one

b. unless mistake could change the outcome of case, it’s not harmful

Question 5

Two main types of trial courts

Answer 5

Constitutional and Statutory

Question 6

4 Tiers of Trial Courts

Answer 6

Local JP/Municipal Court
District
Constitutional County Courts
Statutory County

Question 7

How are trial courts divided?

Answer 7

• Every county is divided into precincts

* Every precinct has at least one JP

Question 8

How to determine JD for a specific court?

Answer 8

• Is it a type of case required in a specific court?
• if yes, then use that one (AIC doesn’t matter)
• If no, use AIC- if it’s within the court’s limits, it has SMJD unless the particular controversy is excluded from its jd or another court has Exclusive JD
• If court does not have JD, any Decision is void

Question 9

Justice Courts

Answer 9

• Judge doesn’t have to be attny
• Lowest ranking civil court
• AIC up to 10k
• Exclusive JD for:
• Civil Cases: 200 or less
• Forcible entry and detainer cases-right of possession, landlord/tenant-no aic (Not unpaid rent disputes)
• Concurrent JD in civil cases with county court for cases with more than 200 & District for more than 200
• Small claims: Simplified procedure so parties can represent without attny
• Appeals:
• 1st goes to county court
• 2nd COA
• 3rd S.Ct (rare)

Question 10

Municipal Courts

Answer 10

• Lowest ranking Criminal court
• Exclusive JD: for cases that arise under the ordinance of the municipality and are punishable by a fine not to exceed 2k in cases that govern fire, safety, zoning or public health and sanitation; or 500 in all other
• Concurrent JD with Justice Court in criminal cases, punishable by fine only
• Narrow civil JD for certain municipal ordinanaces

Question 11

Constitutional County Courts

Answer 11

• Judge doesn’t have to be an attny
• AIC: 200.0`-10k
• Exclusive JD: uncontested probate cases in a county that does not have probate courts
• Concurrent JD: Justice courts and District courts for AIC
• *Appellate JD cases from justice and small claims courts that are over 20
• Can grant relief for: Injuctions, mandamus, eminent domain, forfeiture of corperate charter, right to property valued at 500 or more
• Judge also head of the commissioners court, rarely dues judicial stuff

Question 12

District Courts

Answer 12

• Judge must be an attn
• 3 Types: Constitutional, Legislative (Mostly family law), JuV
• AIC: majority min 200.01; minority 500.01
• General JD: presumed to have JD unless contrary showing can be made
• Exclusive JD: Title to real property disputes

Question 13

Statutory or Leg. Courts

Answer 13

1. County Court at Law:
   * Judge req to be att
   * Civil and crim cases
   * Each one created y separate statute
   * All statutory courts have JD over
   - civil cases
   - worker’s comp AIC 500-100k
2. Probate Courts: VERY Specialized
   * Counties with No statutory probate court
   - probate matters handled in the constituational county court until the matter becomes contested and then the judge may, or must if party motions, assign case to statutory probate court
   * Counties with SPC:
   - Court hears probate matters
   * JD of SPC: “appertaining to or incident to an estate pending”

Question 14

Calculating the AIC

Answer 14

Determined by the pleadings, all damages included: 
Include: 
*Attorney's fees (except in CC@L)
*Pun. Dmgs (except at CC@L)
*Interest

Do not include:
*Court Cost

Question 15

Foreclosure AIC

Answer 15

Greater of FMV or the debt

Question 16

Multiple Parties AIC

Answer 16

Multiple P, single D: Added together

Single P, multiple D: Not added together, each must meet requirements

Question 17

Raising lack of SMJD

Answer 17

a. Plea to JD: Can be raised at any time, court must dismiss, SOL is tolled for 60 days from dismissal so P can refile
b. Appeal/mandamus:
1. Appeal
- only if court was erroneous in dismissal
- only remedy after final jmt
2. Mandamus
- not available before trail on its merits

Question 18

3 Ways to revers a Judge’s Ruling

Answer 18

a. Appeal after Final Jmt
b. Writ of mandamus
c. interlocutory appeal (Mostly from statute)

Question 19

Discretion

Answer 19

Signifies a power to choose among alternatives within legal bounds

Question 20

Abuse of discretion

Answer 20

1. Discretionary: A court clearly abuses its discretion if it reaches a decision so arbitrary and unreasonable as to amount to a clear and prejudicial error of law
2. Ministerial: Duties required to perform. A clear failure by the court to analyze or apply the law correctly will constitute an abuse of discretion
3. If a judge exercised power of choice given to him by law, and does so in a way that is lawful in every respect, he has not committed error
4. if error is not prejudicial or does not result in injury - not abuse
5. it is prejudicial or injurious where it probably caused an improper jmt in the case or prevented the appellant from making a proper presentation from appeal

Question 21

When appealing “Discretion”

Answer 21

relator must show that the trial court could reasonably have reached only one decision for it to be changed.

(The court has no discretion about /which/ law to apply, only /how/ it can be applied)

Question 22

Process for Filing Motion for Recusal/ Disqualification of Judges (Rule 18)

Answer 22

a. 10 days before trial or hearing
1. any party may make a motion stating grounds why why the judge should not sit in the case
2. motion must be verified and specific
3. must have personal knowledge and state facts admissible in evidence, can be based upon info and a belief if specifically stated
4. excluding the supreme ct. and court of crim ap or coa
b. on the day the motion is filed
1. copies must be served on all other parties/cousel of record, with a notice that it’s expected to be presented to the judge 3 days unless judge orders otherwise
2. any other party may file iwth the cler an opposing order or concurring statement at atny time before the motion is heard.
c. if the judge declines to recuse himself
1. he shall forward to the presiding judge of the administrative judicial district, in either original form or certified copy, an order of referral, the motion, and all opposing and concurring stmts.
2. except for good cause, the judge shall make no further orders and shall take no further action in the case after filing of the mtn and prior to a hearing on the mtn
3. the presiding judge of the administrative judicial district shall immediately set a hearing before himself, give notice of hearing to all parties, counsel.

Question 23

Grounds for removing a judge

Answer 23

Constitutional Disqualification: No judge shall sit in any case wherein the judge may be interested, or where either of the parties may be connected with the judge, either by affinity or consanguinity, within such a degree as may be prescribed by law, or when the judge shall have been counsel in the case.
1. if continues to sit in violation:
-mandamus available
-orders are void
-not waivable
-can be raised at any point
2. How much interest?: Interest, however small, which rests upon a direct pecuniary or personal interest in the case presented to judge or court
3. if found out too late? -still void
4. Types:
Degrees of kinship: Judge can’t be related by affinity (marriage) or consanguinity (blood) within the third degree nor to an attny in the case within the first degree
Judge as cousel: the disqualification affecting a judge who has been a counsel in the case operated to disqualify a judge whose law firm has been a counsel while he was a member.

Question 24

Recusal

Answer 24

A judge who is biased or prejudiced concerning the subject matter or party involved is not disqualified, but can be grounds for recusal

1. Proof of judicial bias: bias relevant to recusal must be from an extra-judicial source that is it can’t be proven from the judge’s conduct during the case in which the question is raised
2. once denied, the judge shall continue to:
   - preside over the case
   - sign orders in the case
   - move the case to final disposition as though tertiary recusal motion had not been filed
3. if erroneously denied
   - jmts are not void, may be reversed by appeal
   - the error is not fundamental and can be waived without timely objection

Question 25

Statutory Strike (Visiting Judge)

Answer 25

1. May be used only to disqualify a retired or former judge who has been assigned to a particular court as a visiting judge 2. Must be timely objection, filed no later than the 7th day after the date the party receives actual notice of the assignment or before the date of the first hearing or trial, including pretrial hearings, commences, whichever occurs earlier (may extend the time to file for good cause)

Question 26

4 types of visiting judge (and numbers of strikes)

Answer 26

1. Assigned (Active Judge): Allowed 0 strikes because not subject to objection 2. Former Judge: Subject to unlimited strikes (if judge overrules timely objection to this assignment, judges subsequent orders are void and subject to mandamus) 3. Retired Judge: 1 strike 4. sitting judge: 1 strike

Question 27

Professionalism

Answer 27

a. don't be mean b. get along c. if the court feels that a meaningful conference has not been held, it may order the attnys to meet in person, or even grant a motion, before a response tot he motion is filed

Question 28

Rule 8 Attny in Charge

Answer 28

On party's first appearance through counsel, the attny whose signature first appears on the initial pleadings is the attny in charge and will be responsible for the suit until charged by written notice, unless another attny is specifically designated (all communications sent to attny in charge)

Question 29

Rule 9, number of counsel heard

Answer 29

Not more than two counsel shall, on each side, be heard on any question or the trial, except in important cases and upon special leave of the court

Question 30

Rule 10 Withdrawal of Attny

Answer 30

An attorney may withdraw from representing a party only upon a written motion for good cause. 1. if another attorney is to be substituted as A for the party, the motion shall state: * *The name, address, phone number, telecopier number, if any and state bar id number of the sub A; that the party approves the substitution and that the withdrawal is not sought for delay only 2. if another A is not to be subbed at the A for the party; the motion shall state: * *that a copy of the motion has been delivered to the party; that the party has been notified in writing of his right to object to the motion; whether the party consents to the motion; the party's last known address and all pending settings and deadlines. 3. if motion is granted: the withdrawing A must immediately notify the party in writing of any additional settings or deadlines of which the A has knowledge of at the time of withdrawal. 4. the court may impose further conditions 5. notice or delivery to a party shall either be made to the party in person or mailed to the party's last known address by both certified and regular first class mail. 6. if the A in charge withdraws and another A remains or becomes subbed, another A in charge must be designated of record with notice to all other parties in accordance with rule 21a

Question 31

Right to counsel

Answer 31

If unwarranted, denial is reversible error. 1. therefore when a trial court allows an A to vol. withdraw it must give the party time to secure new counsel and time for the new cousel to investigate case and prepare for trial. 2. to show abuse of discretion: movant must show that the failure to be representated at trial was not due to his own fault or negligence

Question 32

Client Discharge of Counsel

Answer 32

Different from vol. withdrawal. Client has absolute right to fire you. 1. you don't have an absolute right to fire them, can only withdraw if rule 10 is satisfied

Question 33

Texas Disiplinary Rules for Withdrwl

Answer 33

Requires a A who terminates representation to take reasonable steps to protect the client's interest including: * Giving reasonable notice to client * Allowing time for employment of other A * Surrendering papers and property to which client is entitled * Refunding any advance payments not yet earned

Question 34

Rulings on Pretrial Matters and App Review

Answer 34

1. Application of Rules a. the judge does not have discretion to refuse to hear or rule on a motion within a reasonable amt of time 2. appeal or writ of error to court of appeals: In a civil case in which the jmt or AIC exceeds 250, exclusive of interest and costs, a person may take an appeal or writ of error to the COA from a from a fial jmt of the district or CC 3. Interlocutory Appeal: Allowed by statute to have case appealed immediately tot he court of appeals before jmt rendered a. only ones specified in statute may be appealed before final jmt b. it MUST be decided on the merits

Question 35

Mandamus

Answer 35

used to force officials to do some particular act, can be ministerial or discretionary a party must show: 1. clear abuse of discretion and -discretionary or ministerial 2. That there is not an adequate remedy by appeal *Not inadaquate simply because it may cost more or delay *Justified only when parties stand to lose substantial rights *When any benefits to mandamus are outweighed by detrimetns *Element is not required when: Judge sits in violation(constitutionally), disqualification of non-retired assigned judge, venue b. Granted only in limited and very extraordinary circumstances c. a delay in getting questions answered by app. rev. will not justify this d. venue determinations are not rev. by mandamus (not true anymore)

Question 36

Process of Mandamus

Answer 36

1. COA determines if Mandamus is even available 2. If granted: if the losing party wants the S. Ct. to determine if the trial court abused its discretion and there is not adequate remedy on appeal, or it is not required by case law or statute. -if COA erred- S Ct. will grant writ and direct COA to set aside order, reinstating trial court's ruling -If COA was correct, S Ct will deny writ 3. If Denied: *Can't appeal ruling, must file new mandamus in S.Ct

Question 37

Record in Pretrial Hearings

Answer 37

If evidentiary: Record is required If not: Record is not req. * Pretrial hearings presumed to be non-ev absent specific indication to the contrary

Question 38

Record

Answer 38

Parties request courts to act through pleadings, motions and other requests, most of which are covered in the rules of procedure. Courts in turn act through orders, judgments and rulings. These are the record and is only what the appellat court has access to.

Question 39

Preserving Error

Answer 39

Required as a prereq to presenting a complaint for apprev that the record must show that: * The complaining party presented the matter to the cour in a timely request, objection or motion * that states the grounds for uling with sufficient spec. to make th etrial court aware of the complaint and that the tc ruled

Question 40

Reversible Error

Answer 40

Can't reverse unless the error complained of probably caused an improper jmt. Most cases are affirmed

Question 41

Filing Doc

Answer 41

Party must properly file the docs with the clerk so that it is included in the record

Question 42

Serving Docs

Answer 42

When you file a doc, you must serve it upon opposing parties. Must file certificate of service, no less than 3 days before hearing

Question 43

Responding to filed and served doc

Answer 43

Calculated by either: Date of Service: Date the docs were served to the opposing party Date of Filing: date the docs were filed with the court Date court order signed:

Question 44

Rule 4: Computation of Time

Answer 44

1. In computing any period of time, the date used to calculate your response time is not to be included * That day is always 0 2. Then coutn the # of days to respond, the last day IS included 3. if the last day is a saturday, sunday, or legal holiday, then the time runs until the next day that is not a s, sn, or H. * Holiday: Any day the court is officially closed, get affidavid from the clerk that the court was oficially closed. Must ask /clerk/. 4. Intervening saturdays, Sundays and Legal holidays are counted when calculating a response date. * EXCEPTION: When the response time is less than 5 days, do not count them.

Question 45

Rule 5, Enlargement of Time

Answer 45

the court, for cause may show, at any time in its discretion: * with or without motion, allow it to be done after the expiration of the period; or*Upon motion, allow it to be done after the expiration of the specified period where good cause is shown for the failure to act. * The court may not enlarge the period for taking any action under the rules relating to new trials except as stated in these rules 2. If sent to clerk by first class mail and is properly addressed and stamped and is deposited in the mail on or before the last day for filing, if received by the clerk not more than 10 days tardily, shall be filed by the clerk and be deemed filed in time. A legible postmark affixed by the Postal Service is Prima Facie evidence of the date of mailing.

Question 46

Rule 21: Filing and Serving Pleading and motions

Answer 46

Everything submitted to the court for an order, unless presented during a hearing or trial shall, * Be filed with the clerk of court in writing * State the grounds * State the relief or orders sought * send a tru copy to all other parties, atty in charges, and note it on the docket * *Must give no less than 3 days notice to other party of the time specified for hearing, unless otherwise provided * *failure to send is sanctionable

Question 47

Rule 21a: Methods of service

Answer 47

Delivery, certified or registered mail, return rec. requested; Fax

Question 48

Service by delivery(21a)

Answer 48

complete when the doc is delivered to the party's agent or att of record

Question 49

Service by mail (21a)

Answer 49

complete upon deposit into the custody of the US postal service

Question 50

Fax (21a)

Answer 50

Is complete upon rec. of fax, except rec. after 5pm is complete the following day.If the ressponse date is caculated from date of service and service was provided by mail or fax, rule 21a adds 3 days to the response time.

Question 51

Rule 75: Filed Pleadings: Withdrawal

Answer 51

All Filed Pleadings are to remain, at all times in the clerk's office, in the court or in custody of the clerk, except that the court may allow a filed pleading to be withdrawn for a limited time whenever necessary on leavind a certiffied copy on file 2. The party withdrawing such pleading shall pay the costs of such order and cert. copy.