Part 1 - General Rules Flashcards
Rule 1 - Objective of Rules
Objective: The proper objective of rules of civil procedure is to obtain a just, fair, equitable and impartial adjudication of the rights of litigants under established principles of substantive law.
Liberal Construction: To the end that this objective may be attained with as great expedition and dispatch and at the least expense both to the litigants and to the state as may be practicable, these rules shall be given a liberal construction.
Rule 2 - Scope of Rules
These rules govern the procedure in the justice, county, district, and business courts of the State of Texas in all actions of a civil nature, with such exceptions as may be hereinafter stated.
Rule 3 - Construction of Rules
Unless otherwise expressly provided, the past, present or future tense shall each include the other; the masculine, feminine, or neuter gender shall each include the other; and the singular and plural number shall each include the other
Rule 3a - Local Rules, Forms, and Standing Orders
(a) Authority to Promulgate: An administrative judicial region or a court governed by these rules may create local rules, forms, and standing orders to govern local practice.
(b) Consistency with Other Laws and Rules: Local rules, forms, and standing orders must be consistent with:
- State and federal law.
- Rules adopted by the Supreme Court of Texas (including any time periods specified in those rules).
- Rules of the administrative judicial region in which the court is located (if adopted by a court).
(c) Publication Requirement: Local rules, forms, and standing orders must be published on the Office of Court Administration’s website to be effective.
Rule 4 - Computation of Time
Exclusion of First Day: When calculating any time period specified or allowed by these rules, a court order, or any applicable statute, the day of the act, event, or default that starts the clock is not included in the calculation.
Inclusion of Last Day (Except Weekends/Holidays): The last day of the calculated period is included, unless it falls on a Saturday, Sunday, or legal holiday. In that case, the period extends to the end of the next day that is not a Saturday, Sunday, or legal holiday.
Exclusion of Weekends/Holidays in Short Periods: Saturdays, Sundays, and legal holidays are not counted for any purpose in time periods of five days or less as defined by these rules.
Exception for Certain Three-Day Periods: Saturdays, Sundays, and legal holidays are counted for the three-day periods specified in Rules 21 and 21a, which relate to extending other periods by three days when service is made by mail.
Rule 5 - Enlargement of Time
Discretionary Extensions Before Expiration: When an act is required or permitted by these rules, a notice given under these rules, or a court order to be done at or within a specific time, the court, for good cause shown, may, at any time in its discretion, with or without a motion or notice, order the period extended. This extension may be granted if application is made before the original period expires, or before an extended period expires pursuant to a previous order.
Extensions After Expiration: Upon motion, the court may permit an act to be done after the specified period has expired if good cause is shown for the failure to act within the original timeframe.
Limitations on Extensions: The court may not extend the time for taking any action related to new trials, except as specifically provided in the rules governing new trials.
Filing by Mail: If a document is sent to the proper clerk by first-class United States mail in a properly addressed and stamped envelope or wrapper, and is deposited in the mail on or before the last day for filing, the document, if received by the clerk no more than ten days late, shall be filed by the clerk and be considered filed on time.
Proof of Mailing: A legible postmark affixed by the United States Postal Service serves as prima facie evidence of the date of mailing.
Rule 6 - Suits Commenced on Sunday
General Prohibition: No civil lawsuit may be initiated, nor may any process be issued or served on a Sunday.
Exceptions: This prohibition does not apply to the following proceedings:
- Injunctions
- Attachments
- Garnishments
- Sequestrations
- Distress proceedings
Exception to Prohibition: Citation by publication published on a Sunday is valid.
Rule 7 - May Appear by Attorney
Any party to a suit may appear and prosecute or defend his rights therein, either in person or by an attorney of the court.
Rule 8 - Attorney in Charge
Initial Designation: Upon a party’s first appearance in a case through an attorney, the attorney whose signature appears first on the initial pleading for that party will be considered the attorney in charge, unless a different attorney is specifically designated in the pleading.
Continuing Responsibility: This designated attorney in charge will remain responsible for the case on behalf of that party until the designation is formally changed.
Changing Designation: Any change in designation must be made through a written notice filed with the court and provided to all other parties, in compliance with Rule 21a.
Communication Direction: All communications regarding the lawsuit, whether from the court or from other counsel, must be directed to the designated attorney in charge.
Rule 9 - Number of Counsel Heard
Not more than two counsel on each side shall be heard on any question or on the trial, except in important cases, and upon special leave of the court.
Rule 10 - Withdrawal of Attorney
Motion for Withdrawal: An attorney may withdraw from representing a party only upon written motion for good cause shown.
Required Contents of Motion (Substitution of Attorney): If another attorney is to be substituted as attorney for the party, the motion shall state:
- The name, address, telephone number, email address, telecopier number (if any), and State Bar of Texas identification number of the substitute attorney;
- That the party approves the substitution; and
- That the withdrawal is not sought for delay only.
Required Contents of Motion (No Substitution): If another attorney is not to be substituted as attorney 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 their right to object to the motion;
- Whether the party consents to the motion;
- The party’s last known address, telephone number, and email address; and
- All pending settings and deadlines.
Post-Withdrawal Notification: If the motion is granted, the withdrawing attorney shall immediately notify the party in writing of any additional settings or deadlines of which the attorney has knowledge at the time of the withdrawal and has not already notified the party.
Court’s Authority: The Court may impose further conditions upon granting leave to withdraw.
Method of Notice/Delivery: Notice or delivery to a party shall be either made to the party in person or mailed to the party’s last known address by both certified and regular first class mail.
Designation of Attorney in Charge: If the attorney in charge withdraws and another attorney remains or becomes substituted, another attorney in charge must be designated of record with notice to all other parties in accordance with Rule21a.
Rule 11 - Agreements to be in Writing
Enforceability of Agreements: Unless otherwise provided in these rules, no agreement between attorneys or parties touching any suit pending will be enforced unless it meets one of the following conditions:
- Written Agreement: The agreement is in writing, signed, and filed with the papers as part of the record.
- Oral Agreement in Open Court: The agreement is made in open court and entered of record.
Rule 12 - Attorney to Show Authority
Motion to Challenge Authority: A party in a suit or proceeding pending in a court of this state may, by sworn written motion stating that they believe the suit or proceeding is being prosecuted or defended without authority, cause the attorney to be cited to appear before the court and show their authority to act.
Notice of Motion: The notice of the motion shall be served upon the challenged attorney at least ten days before the hearing on the motion.
Burden of Proof: At the hearing on the motion, the burden of proof shall be upon the challenged attorney to show sufficient authority to prosecute or defend the suit on behalf of the other party.
Consequences of Failing to Show Authority: Upon the challenged attorney’s failure to show such authority, the court shall refuse to permit the attorney to appear in the cause, and shall strike the pleadings if no person who is authorized to prosecute or defend appears.
Timing of Motion: The motion may be heard and determined at any time before the parties have announced ready for trial, but the trial shall not be unnecessarily continued or delayed for the hearing.
Rule 13 - Effect of Signing Pleadings, Motions and Other Papers; Sanctions
Certification by Signature: The signatures of attorneys or parties constitute a certificate by them that they have read the pleading, motion, or other paper; that to the best of their knowledge, information, and belief formed after reasonable inquiry the instrument is not groundless and brought in bad faith or groundless and brought for the purpose of harassment.
Prohibition Against Fictitious Suits and Pleadings: Attorneys or parties who shall bring a fictitious suit as an experiment to get an opinion of the court, or who shall file any fictitious pleading in a cause for such a purpose, or shall make statements in pleading which they know to be groundless and false, for the purpose of securing a delay of the trial of the cause, shall be held guilty of a contempt.
Sanctions for Violations: If a pleading, motion or other paper is signed in violation of this rule, the court, upon motion or upon its own initiative, after notice and hearing, shall impose an appropriate sanction available under Rule 215-2b, upon the person who signed it, a represented party, or both.
Presumption of Good Faith; Requirements for Sanctions: Courts shall presume that pleadings, motions, and other papers are filed in good faith. No sanctions under this rule may be imposed except for good cause, the particulars of which must be stated in the sanction order.
Definition of “Groundless”: “Groundless” for purposes of this rule means no basis in law or fact and not warranted by good faith argument for the extension, modification, or reversal of existing law.
Non-Violations: A general denial does not constitute a violation of this rule. The amount requested for damages does not constitute a violation of this rule.
Rule 14 - Affidavit by Agent
Whenever it may be necessary or proper for any party to a civil suit or proceeding to make an affidavit, it may be made by either the party or his agent or his attorney.
True or False - local rules can modify a time period set forth in the TRCPs.
False. Rule 3(a)(2) absolutely prohibits application of a local rule that alters a time period set forth in the TRCPs.
Approximately $1,589.00 v. State, 230 S.W.3d 871, 874 (Tex. App.—Houston [14th Dist.] 2007, no pet.).
When there is a conflict between the TRCP and a legislative enactment, which wins?
When a rule of procedure conflicts with a statute, the rule yieds to the legislative enactment.
Peacock v. Humble, 933 S.W.2d 341, 342 (Tex. App.—Austin 1996, no writ)
Which rule is the mailbox rule and what does it say?
TRCP 5 contains the mailbox rule, which states:
Filing by Mail: If a document is sent to the proper clerk by first-class United States mail in a properly addressed and stamped envelope or wrapper, and is deposited in the mail on or before the last day for filing, the document, if received by the clerk no more than ten days late, shall be filed by the clerk and be considered filed on time.
Proof of Mailing: A legible postmark affixed by the United States Postal Service serves as prima facie evidence of the date of mailing.
True or False - a court can grant an extension sought after the deadline without good cause.
False. If the request for extension is not made until after the deadline, then the party must file a motion and demonstrate “good cause” for its failure to act within the deadline. Parker Barber & Beauty Supply, Inc. v. The Wella Corp., No. 03-04-00623-CV, 2006 WL 2918571, at 6 (Tex. App.—Austin Oct. 11, 2006, no pet.)
What are the presumptions and burdens of proof for the Rule 5 mailbox rule?
Does the mailbox rule apply to filings with no set deadline?
When the date of mailing is undisputed, compliance with Rule 5 is presumed. If the non-mailing party disputes compliance in a timely and specific manner, the burden of producing proof of complainc eshifts to the mailing party. Akinwamide v. Transp. Ins. Co., 147 S.W.3d 623, 625 (Tex. App.—Corpus Christi–Edinburg 2004, no pet.)
No, the mailbox rule does not apply to filings with no set deadline. FP Asset Group, LP v. Providence Bank, No. 05-12-01728-CV, 2014 WL 3605770, at 2 (Tex. App.—Dallas July 22, 2014, no pet.)
True or False - Although a client can discharge his attorney at any time, an attorney can only withdraw from representation if the requirements of Rule 10 are met.
True.
Rogers v. Clinton, 794 S.W.2d 9, 10 n.1 (Tex. 1990)
What constitutes good cause an attorney’s withdrawal from a case under TRCP 10?
TRCP 10 does not define “good cause,” but courts view the Texas Disciplinary Rules as guidelines for determining good cause.
However, simply alleging that “good cause” exists for the withdrawal, without more, is insufficient to justify a withdrawal. Spiller v. Tex. A&M Univ. Sys., No. 13-16-00041-CV (Tex. App. 2016).
What is the purpose of TRCP 11?
Does a Rule 11 agreement need to be in writing?
Who signs the rule 11 agreement?
How are rule 11 agreements interpreted?
The purpose of TRCP 11 is to ensure agreements between the parties regarding the case do not become sources of controversy, impeding the cases’ resolution. Kennedy v. Hyde, 682 S.W.2d 525 (Tex. 1984).
Yes, a rule 11 agreement must be in writing (although it need not be a single document) and contain all the material details of the agreement (so that no oral testimony is necessary). Padilla v. LaFrance, 907 S.W.2d 454, 460 (Tex. 1995).
A rule 11 agreement may be signed by the attorneys for the parties or the parties themselves. Sims v. Fitzpatrick, No. 01-13-00176-CV (Tex. App. 2014).
Rule 11 agreements are interpreted like other contracts and must conform to those requirements and forms. Shamrock Psychiatric Clinic, 540 S.W.3d 553, 560-61 (Tex. 2018).
Is a rule 11 agreement enforceable as an agreed judgment?
Even if the parties enter into a valid rule 11 agreement to settle a case, the parties must consent to the agreement at the time the trial court renders judgment. Meaning a prior writing evidencing the parties’ agreement cannot be enforced as an agreed judgment if a party does not presently consent on the record. Cooper v. Cooper, No. 05-20-00507-CV (Tex. App. 2021).
However, a rule 11 or settlement agreement can nonetheless be enforced as a contract. You just have to follow the rules for enforcing a contract. Staley v. Herblin, 188 S.W.3d 334 (Tex. App. 2006).
