Rules are not Law!
Supreme Court ruling of Arizona v. Miranda, which says rules, cannot abridge substantive rights. Arizona v. Miranda "Where rights secured by the Constitution are involved, there can be no rule making or legislation which would abrogate them."
TITLE 28 Section 2072b states: (b) Such rules shall not abridge, enlarge or modify any substantive right.
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PART II RULES OF PRACTICE IN DISTRICT and COUNTY COURTS
Section 6 Costs and Security Therefor
TRCP 125 PARTIES RESPONSIBLE
Each party to a suit shall be liable to the officers of the court for all costs incurred by himself.
American Commercial Colleges, Inc. v. Davis, 821 S.W.2d 450, 454 (Tex.App-Eastland 1991, writ denied). "[T]he jury found that the reasonable and necessary costs were ,000.00. Costs should not have been submitted as ajury question. The right to costs is based entirely on statutes or procedural rules; the trial court is the proper authority to determine and award costs."
TRCP 126 FEE FOR EXECUTION OF PROCESS DEMAND
No sheriff or constable shall be compelled to execute any process in civil cases coming from any county other than the one in which he is an officer, unless the fees allowed him by law for the service of such process shall be paid in advance; except when affidavit is filed, as provided by law or these rules. The clerk issuing the process shall indorse thereon the words "pauper oath filed," and sign his name officially below them; and the officer in whose hands such process is placed for service shall serve the same.
TRCP 127 PARTIES LIABLE FOR OTHER COSTS
Each party to a suit shall be liable for all costs incurred by him. If the costs cannot be collected from the party against whom they have been adjudged, execution may issue against any party in such suit for the amount of costs incurred by such party, but no more.
TRCP 128 REPEALED
TRCP 129 HOW COSTS COLLECTED
If any party responsible for costs fails or refuses to pay the same within ten days after demand for payment, the clerk or justice of the peace may make certified copy of the bill of costs then due, and place the same in the hands of the sheriff or constable for collection. All taxes imposed on law proceedings shall be included in the bill of costs. Such certified bill of costs shall have the force and effect of an execution. The removal of a case by appeal shall not prevent the issuance of an execution for costs.
TRCP 130 OFFICER TO LEVY
The sheriff or constable upon demand and failure to pay said bill of costs, may levy upon a sufficient amount of property of the person from whom said costs are due to satisfy the same, and sell such property as under execution. Where such party is not a resident of the county where such suit is pending, the payment of such costs may be demanded of his attorney of record; and neither the clerk nor justice of the peace shall be allowed to charge any fee for making out such certified bill of costs, unless he is compelled to make a levy.
TRCP 131 SUCCESSFUL PARTY TO RECOVER
The successful party to a suit shall recover of his adversary all costs incurred therein, except where otherwise provided.
Martinez v. Pierce, 759 S.W.2d 114, 114 (Tex. 1988). "Taxing of costs against the successful party in the trial court is contrary to [TRCP] 131...." Camarena v. Texas Employment Comm'n, 754 S.W.2d 149, 152 (Tex.l988). "[T]he court of appeals ordered that the costs of appeal be taxed equally between TEC and the farm workers.... We reverse the judgment of the court of appeals and order that all costs be assessed against the State. [TRCP] 131 provides that the successful party to a suit shall recover all costs incurred."
Laughlin v. Aectra Tradings & Transp., Inc.,__ S.W.3d __, __ (Tex-App- Houston [ 14th Dist.] 1999, n.p.h.) (No. 14-98-00368-CV; 9-23-99). "[I]n the present case, the parties settled the issues prior to trial, therefore, there is no 'successful' party. Thus, the trial court could not assess the costs of the receivership pursuant to [TRCP] 131."
Newsome v. Charter Bank Colonial, 940 S.W.2d 157, 168 (Tex.App- Houston [14th Dist.] 1996, writ denied). TRCP 131 "requires that the successful party to a suit recover costs from the adverse party, unless the trial court finds good cause to adjudge the costs otherwise and states its reasons on the record pursuant to Rule 141."
TRCP 132 REPEALED
TRCP 133 COSTS OF MOTION
The court may give or refuse costs on motions at its discretion, except where otherwise provided by law or these rules.
TRCP 134 135 REPEALED
TRCP 136 DEMAND REDUCED BY PAYMENTS
Where the plaintiffs demand is reduced by payment to an amount which would not have been within the jurisdiction of the court, the defendant shall recover his costs.
TRCP 137 IN ASSAULT and BATTERY ETC
In civil actions for assault and battery, slander and defamation of character, if the verdict or judgment shall be for the plaintiff, but for less than twenty dollars, the plaintiff shall not recover his costs, but each party shall be taxed with the costs incurred by him in such suit
TRCP 138 COST OF NEW TRIALS
The costs of new trials may either abide the result of the suit or may be taxed against the party to whom the new trial is granted, as the court may adjudge when he grants such new trial.
TRCP 139 ON APPEAL and CERTIORARI
When a case is appealed, if the judgment of the higher court be against the appellant, but for less amount than the original judgment, such party shall recover the costs of the higher court but shall be adjudged to pay the costs of the court below; if the judgment be against him for the same or a greater amount than in the court below, the adverse party shall recover the costs of both courts. If the judgment of the court above be in favor of the party appealing and for more than the original judgment, such party shall recover the costs of both courts; if the judgment be in his favor, but for the same or a less amount than in the court below, he shall recover the costs of the court below, and pay the Cost of the court above.
Keene Corp. v. Gardner, 837 S.W.2d 224,232 (Tex. App.-Dallas 1992, writ denied). "Because the appellate relief given appellant is de minimis compared to appellees' overall award affirmed on appeal, we assess all costs of this appeal against appellant."
TRCP 140 NO FEE FOR COPY
No fee for a copy of a paper not required by law or these rules to be copied shall be taxed in the bill of costs.
TRCP 141 COURT MAY OTHERWISE ADJUDGE COSTS
The court may, for good cause, to be stated on the record, adjudge the costs otherwise than as provided by law or these rules.
Rogers v. Walmart Stores, Inc., 686 S.W.2d 599, 601 (Tex.l985). TRCP 141 "permits a court to assess costs on the prevailing party for good cause as shown on the face of the record."
Laughlin v. Aectra Tradings & Transp., Inc., __ S.W.3d __, __ (Tex.App- Houston [ 14th Dist. ] 1999, n.p.h.) (No. 14-98-00368-CV; 9-23-99). "(A]l though the matter [of costs] is left to the court's discretion to resolve the issue based upon principles of equity, the court should set forth in its order the reasons which prompted it to tax the costs for good cause."
TRCP 142 SECURITY FOR COSTS
The clerk shall require from the plaintiff fees for services rendered before issuing any process unless filing is requested pursuant to Rule 145 of these rules.
TRCP 143 RULE FOR COSTS
A party seeking affirmative relief may be ruled to give security for costs at any time before final judgment, upon motion of any party, or any officer of the court interested in the costs accruing in such suit, or by the court upon its own motion. If such rule be entered against any party and he failed to comply therewith on or before twenty (20) days after notice that such rule has been entered, the claim for affirmative relief of such party shall be dismissed.
TransAmerican Nat. Gas Corp. v. Mancias, 877 S.W.2d 840, 844 (Tex.App- Corpus Christi 1994, orig. proceeding). TRCP 143 "generally allows the trial court to require a party to post security for costs that have already accrued, but not to fix a specific amount for anticipated costs which a party is required to pay or post security for prematurely." See also Hager v. Apollo Paper Corp., 856 S.W.2d 512,515 (Tex.App.-Houston [1st Dist.] 1993, no writ).
TRCP 143a COSTS ON APPEAL TO COUNTY COURT
If the appellant fails to pay the costs on appeal from a judgment of a justice of the peace or small claims court within twenty (20) days after being notified to do so by the county clerk, the appeal shall be deemed not perfected and the county clerk shall return all papers in said cause to the justice of the peace having original jurisdiction and the justice of the peace shall proceed as though no appeal had been attempted.
Farmer v. McGee Sens., Inc., 704 S.W.2d 927,929 (Tex.App.-Tyier 1986, no writ). "Since no notice [of costs] had been given, the trial court erred in applying [TRCP] 143a to dismiss Farmer's appeal."
TRCP 144 JUDGMENT ON COST BOND
All bonds given as security for costs shall authorize judgment against all the obligors in such bond for the said costs, to be entered in the Final judgment of the cause.
Mosher v. Tunnell, 400 S.W.2d 402,404 (Tex.App. -Houston [1st Dist.] 1966, writ refd n.r.e.). TRCP 144 "provides the bond shall authorize judgment against the obligors for said costs. This means such costs as shall be adjudged against the principal whatever be the amount."
TRCP 145 AFFIDAVIT OF INABILITY
In lieu of filing security for costs of an original action, a party who is unable to afford said costs shall file an affidavit as herein described. A "party who is unable to afford costs" is defined as a person who is presently receiving a governmental entitlement based on indigency or any other person who has no ability to pay costs. Said affidavit, and the party's action, shall be processed by the clerk in the manner prescribed by this rule.
1. Procedure. Upon the filing of the affidavit, the clerk shall docket the action, issue citation and provide such other customary services as are provided any party. After service of citation, the defendant may contest the affidavit by filing a written contest giving notice to all parties, provided that temporary hearings will not be continued pending the filing of the contest. If the court shall find at the first regular hearing in the course of the action that the party (other than a party receiving a governmental entitlement) is able to afford costs, the party shall pay the costs of the action. Reasons for such a finding shall be contained in an order. Except with leave of court, no further steps in the action will be taken by a party who is found able to afford costs until payment is made. If the party's action results in monetary award, and the court finds sufficient monetary award to reimburse costs, the party shall pay the costs of the action. If the court finds that another party to the suit can pay the costs of the action, the other party shall pay the costs of the action.
2. Affidavit. The affidavit shall contain complete information as to the party's identity, nature and amount of governmental entitlement income, nature and amount of employment income, other income, (interest, dividends, etc.), spouse's income if available to the party, property owned (other than homestead), cash or checking account, dependents, debts, and monthly expenses. The affidavit shall contain the following statements: "I am unable to pay the court costs. I verify that the statements made in this affidavit are true and correct." The affidavit shall be sworn before a Notary Public.
3. Attorney's Certification. If the party is represented by an attorney who is providing free legal services, without contingency, because of the party's indigency, said attorney may file an affidavit to that effect to assist the court in understanding the Financial condition of the party.
Griffin Indus., Inc. v. 13th Ct. of Appeals, 934 S.W.2d 349,354 (Tex.l996). If a contingency fee agreement between an attorney and an party "provides that the attorney is to pay or advance costs, and the [party] makes no further showing [at a hearing to determine indigency status], the agreement would be some evidence that the [party] has a source of funds from which to pay costs. But, when the facts establish that the attorney will not or cannot pay those costs, ... we cannot erect a legal Fiction that an indigent has the ability
to pay [costs]."
Creel v. D.A. for Medina Cty., 818 S.W.2d 45,46 n.2 (Tex.l991). "We note that the [CPRC] allows a court to dismiss actions Filed in forma pauperis on a Finding that the allegation of poverty is false or the action is frivolous or malicious."
Equitable Gen. Ins. Co. v. Yates, 684 S.W.2d 669, 671 (Tex.l984). "An uncontested affidavit of inability to pay is conclusive as a matter of law."
Holt v. F.F. Enterprises, 990 S.W.2d 756, 758 (Tex.App.-Amarillo 1998, no pet.). "[U]nder [TRCP] 145, the defendant is the only party who may contest an affidavit of inability to pay costs. While the case remains in the trial court, neither the trial court clerk nor the reporter have standing to contest a party's indigent status. However, after judgment, both the clerk and reporter, who may be required to provide a free appellate record, have standing to contest an affidavit of indigence."
Varkonyi v. Troche, 802 S.W.2d 63,65 (Tex.App- El Paso 1990, orig. proceeding). "The trial court's order of denial [of indigent status] failed to comply with (TRCP] 145 which requires that there should be contained in the denial order 'Reasons for such a Finding."'
TRCP 146 DEPOSIT FOR COSTS
In lieu of a bond for costs, the party required to give the same may deposit with the clerk of court or the justice of the peace such sum as the court or justice from time to time may designate as sufficient to pay the accrued costs.
Mosher v. Tunnell, 400 S.W.2d 402, 404-05 (Tex. App.-Houston [ 1st Dist.] 1966, writ refd n.r.e.). "The deposit of court costs, as distinguished from a bond as security for costs, is provided for by [TRCP] 146 and clearly contemplates a deposit only for accrued costs."
TRCP 147 APPLIES TO ANY PARTY
The foregoing rules as to security and rule for costs shall apply to any party who seeks a judgment against any other party.
Exparte Shatter, 649 S.W.2d 300,302 (Tex.l983). " [O]ne who involuntarily comes into court and does not seek any affirmative relief cannot be required to post a cost bond."
TRCP 148 SECURED BY OTHER BOND
No further security shall be required if the costs are secured by the provisions of an attachment or other bond filed by the party required to give security for costs.
Buck v. Johnson, 495 S.W.2d 291,298 (Tex. App.-Waco 1973, writ refd n.r.e.). "(T)he option lies with the party ruled for costs, and not with the court, as to whether a cost bond shall be furnished or a deposit in lieu of bond."
TRCP 149 EXECUTION FOR COSTS
When costs have been adjudged against a party and are not paid, the clerk or justice of the court in which the suit was determined may issue execution, accompanied by an itemized bill of costs, against such party to be levied and collected as in other cases; and said officer, on demand of any party to whom any such costs are due, shall issue execution for costs at once. This rule shall not apply to executors, administrators or guardians in cases where costs are adjudged against the estate of a deceased person or of a ward. No execution shall issue in any case for costs until after judgment rendered there-for by the court.
Nelon v. Thomas, 329 S.W.2d 148, 151 (Tex.App-Texarkana 1959, writ ref'd n.r.e.). "The order [for costs] was clearly an interlocutory order of the trial court and it was not one of the type of interlocutory orders made ... appealable by any of the statutes and rules of civil procedure of this state...."
Section 7 Abatement and Discontinuance of Suit
TRCP 150 DEATH OF PARTY
Where the cause of action is one which survives, no suit shall abate because of the death of any party thereto before the verdict or decision of the court is rendered, but such suit may proceed to judgment as hereinafter provided.
Palomino v. Palomino, 960 S.W.2d 899, 900-01 (Tex.App.-El Paso 1997, pet. denied). "When a party to a suit dies, the suit will not abate if the cause of action survives the death of that party. The general rule in Texas is that a cause of action for divorce is purely personal and becomes moot and abates upon the death of either spouse ... However, when a trial court has rendered judgment on the merits in a divorce case, the cause does not abate when a party dies, and the cause cannot be dismissed."
TRCP 151 DEATH OF PLAINTIFF
If the plaintiff dies, the heirs, or the administrator or executor of such decedent may appear and upon suggestion of such death being entered of record in open court, may be made plaintiff, and the suit shall proceed in his or their name. If no such appearance and suggestion be made within a reasonable time after the death of the plaintiff, the clerk upon the application of defendant, his agent or attorney, shall issue a scire facias for the heirs or the administrator or executor of such decedent, requiring him to appear and prosecute such suit. After service of such scire facias, should such heir or administrator or executor fail to enter appearance within the time provided, the defendant may have the suit dismissed.
Gracey v. West, 422 S.W.2d 913, 918 (Tex.l968). TRCP 151 "requires defendant to have a scire facias issued bringing in a deceased plaintiffs representative and his failure to appear before defendant can have the cause discontinued."
TRCP 152 DEATH OF DEFENDANT
Where the defendant shall die, upon the suggestion of death being entered of record in open court, or upon petition of the plaintiff, the clerk shall issue a scire facias for the administrator or executor or heir requiring him to appear and defend the suit and upon the return of such service, the suit shall proceed against such administrator or executor or heir.
Estate of Pollack v. McMurrey, 858 S.W.2d 388, 390 n.2 (Tex.l993). "Scire facias ... provides for substitution of any person or persons succeeding to the rights of the original party, whether executor, administrator, heir, or person holding the same practical relation."
Henson v. Estate of Crow, 734 S.W.2d 648, 649 (Tex.l987). After the death of the defendant, the plaintiff "filed an amended petition naming the Estate of Bruce L. Crow as defendant. The attorney who had represented Crow filed an amended answer on behalf of the Estate.... Trial was had on those pleadings." Held: The trial court had no jurisdiction, because the plaintiff did not sue the personal representative.
TRCP 153 WHEN EXECUTOR ETC DIES
When an executor or administrator shall be a party to any suit, whether as plaintiff or as defendant, and shall die or cease to be such executor or administrator, the suit may be continued by or against the person succeeding him in the administration, or by or against the heirs, upon like proceedings being had as provided in the two preceding rules, or the suit may be dismissed, as provided in Rule 151.
TRCP 154 REQUISITES OF SCIRE FACIAS
The scire facias and returns thereon, provided for in this section, shall conform to the requisites of citations and the returns thereon, under the provisions of these rules.
Mackintosh v. State, 845 S.W.2d 361, 363 (Tex. App- Houston [1st Dist] 1992, no writ). "[T]here is a provision for amending the scire facias documents if necessary and the court is apprised of the necessity. [If] The [TRCPs] provide that scire facias shall conform to the requisites of citations under the rules."
TRCP 155 SURVIVING PARTIES
Where there are two or more plaintiffs or defendants, and one or more of them die, upon suggestion of such death being entered upon the record, the suit shall at the instance of either party proceed in the name of the surviving plaintiffs or against the surviving defendants, as the case may be.
First Nat'l Bank v. Hawn, 392 S.W.2d 377, 379 (Tex-App.-Dallas 1965, writ refd n.r.e.). "Having elected to proceed under [TRCP] 155 against the surviving defendant, approving a judgment against that defendant ... and that judgment having become final ... (the plaintiff] had no right to ... suggest [the other defendant's] death and endeavor to reinstate the suit as to his legal representative."
TRCP 156 DEATH AFTER VERDICT OR CLOSE OF EVIDENCE
When a party in a jury case dies between verdict and judgment, or a party in a non-jury case dies after the evidence is closed and before judgment is pronounced, judgment shall be rendered and entered as if all parties were living.
Nacogdoches Mem. Hosp. v. Justice, 694 S.W.2d 204.206 (Tex.AoD- Tyier 1985. writ ref'd n.r.e.). "The obvious purpose of [TRCP] 156 is merely to avoid a mistrial in a jury case upon the death of [al party occurring after a jury has resolved all material disputed issues of fact."
TRCP 157 REPEALED
TRCP 158 SUIT FOR THE USE OF ANOTHER
When a plaintiff suing for the use of another shall die before verdict, the person for whose use such suit was brought, upon such death being suggested on the record in open court, may prosecute the suit in his own name, and shall be as responsible for costs as if he brought the suit.
TRCP 159 SUIT FOR INJURIES RESULTING IN DEATH
In cases arising under the provisions of the title relating to injuries resulting in death, the suit shall not abate by the death of either party pending the suit, but in such case, if the plaintiff dies, where there is only one plaintiff, some one or more of the parties entitled to the money recovered may be substituted and the suit prosecuted to judgment in the name of such party or parties, for the benefit of the person entitled; if the defendant dies, his executor, administrator or heir may be made a party, and the suit prosecuted to judgment.
TRCP 160 DISSOLUTION OF CORPORATION
The dissolution of a corporation shall not operate to abate any pending suit in which such corporation is a defendant, but such suit shall continue against such corporation and judgment shall be rendered as though the same were not dissolved.
TRCP 161 WHERE SOME DEFENDANTS NOT SERVED
When some of the several defendants in a suit are served with process in due time and others are not so served, the plaintiff may either dismiss as to those not so served and proceed against those who are, or he may take new process against those not served, or may obtain severance of the case as between those served and those not served, but no dismissal shall be allowed as to a principal obligor without also dismissing the parties secondarily liable except in cases provided by statute. No defendant against whom any suit may be so dismissed shall be thereby exonerated from any liability, but may at any time be proceeded against as if no such suit had been brought and no such dismissal ordered.
Osborne v. St. Luke's Episcopal Hasp., 915 S.W.2d 906, 908 (Tex.App- Houston [1st Dist] 1996, writ denied). "Although the Nov. 19 summary judgment did not explicitly dispose of the 8 nonappearing defendants that were not properly sued or served, such a judgment is normally considered final for purposes of appeal and the case stands as if there had been a discontinuance as to the parties not served."
Young v. Hunderup, 763 S.W.2d 611, 612-13 (Tex. App.-Austin 1989, no writ). "Where the judgment disposes of all named parties except those which have not been served and have not appeared ... the judgment is considered final for purposes of appeal and the case stands as if there had been a discontinuance as to those parties not served." Contra Reed v. Gum Keepsake
Diamond Center, 657 S.W.2d 524,525 (Tex.App- Corpus Christi 1983, no writ) (judgment was not final because co-defendant was not served, did not waive the service, did not make an appearance, and was not dismissed).
TRCP 162 DISMISSAL OR NON SUIT
At any time before the plaintiff has introduced all of his evidence other than rebuttal evidence, the plaintiff may dismiss a case, or take a non-suit, which shall be entered in the minutes. Notice of the dismissal or non-suit shall be served in accordance with Rule 21 a on any party who has answered or has been served with process without necessity of court order. Any dismissal pursuant to this rule shall not prejudice the right of an adverse party to be heard on a pending claim for affirmative relief or excuse the payment of all costs taxed by the clerk. A dismissal under this rule shall have no effect on any motion for sanctions, attorney's fees or other costs, pending at the time of dismissal, as determined by the court. Any dismissal pursuant to this rule which terminates the case shall authorize the clerk to tax court costs against dismissing party unless otherwise ordered by the court.
In re Bennett, 960 S.W.2d 35, 38 (Tex.l997). " [P]laintiffs have the right under [TRCP] 162 to take a nonsuit at any time until they have introduced all evidence other than rebuttal evidence. Such a nonsuit may have the effect of vitiating earlier interlocutory orders and of precluding further action by the trial court.... [11] Appellate timetables do not run from the date a nonsuit is Filed, but rather from the date the trial court signs an order of dismissal. [ If ] While ... a trial court has no discretion to refuse to sign an order of dismissal once notice of a nonsuit has been Filed, ... [the] court is free to 'impose [ ] sanctions while it retain[s] plenary jurisdiction' even when a motion for sanctions is Filed after the notice of nonsuit is Filed."
Scott & White Mem. Hosp. v. Schexnider, 940 S.W.2d 594,595 (Tex.l996). "Does the trial court have the power during its plenary jurisdiction to grant a motion for sanctions under [TRCP] 13 even though the motion was not pending when a nonsuit is Filed? [Yes.] At 596: A trial court need not reinstate a case in order to exercise its powers under Rule 13."
Farmer v. Ben E. Keith Co., 907 S.W.2d 495,496 (Tex.l995). "When a judgment is interlocutory because unadjudicated parties or claims remain before the court, and when one moves to have such unadjudicated claims or parties removed by severance, dismissal, or nonsuit, the appellate timetable runs from the signing of a judgment or order disposing of those claims or parties. ... The appellate timetable does not commence to run other than by signed, written order, even when the signing of such an order is purely ministerial."
Hyundai Motor Co. v. Alvarado, 892 S.W.2d 853, 854-55 (Tex.l995). "In Texas, our general rule is that plaintiffs have the right to take a nonsuit at any time until they introduce all evidence other than rebuttal evidence. ... Such a nonsuit may have the effect of vitiating earlier interlocutory orders. ... A decision on the merits, such as a summary judgment, however, is not vitiated.... This includes partial summary judgments."
TRCP 163 DISMISSAL AS TO PARTIES SERVED ETC
When it will not prejudice another party, the plaintiff may dismiss his suit as to one or more of several parties who were served with process, or who have answered, but no such dismissal shall in any case, be allowed as to a principal obligor, except in the cases provided for by statute.
Texas Cab Co. v. Giles, 783 S.W.2d 695, 697 (Tex App.-El Paso 1989, no writ). "Unless the settlement with the deleted defendant was properly presented to the trial court, there generally could have been no dismissal to that defendant under [TRCP] 162 or 163, a.' the dismissal would have prejudiced the codefendant."
TRCP 164 REPEALED
TRCP 165 ABANDONMENT
A party who abandons any part of his claim or defense, as contained in the pleadings, may have that fact entered of record, so as to show that the matter; therein were not tried.
In re Shaw, 966 S.W.2d 174, 177 (Tex.App- Paso 1998, no pet.). "Whether a pleading has been abandoned is a question of law which we review de novo. Formal amendment of the pleadings is not required in order to show abandonment. Indeed, a stipulation may form the basis for abandonment."
In re R.G., 865 S.W.2d 504,508 (Tex.App.--Corpis Christi 1993, no writ). TRCP 165 "permits the abandonment of claims; however, the rule has been interpreted to require abandonment 'before but not after trial of the cause and entry of the judgment.' This is the same requirement as for the non-suit."
TRCP 165a DISMISSAL FOR WANT OF PROSECUTION
1. Failure to Appear. A case may be dismissed for want of prosecution on failure of any party seeking affirmative relief to appear for any hearing or trial of which the party had notice. Notice of the court's intention to dismiss and the date and place of the dismissal hearing shall be sent by the clerk to each attorney of record, and to each party not represented by an attorney and whose address is shown on the docket or in the papers on file, by posting same in the United States Postal Service. At the dismissal hearing, the court shall dismiss for want of prosecution unless there is good cause for the case to be maintained on the docket. If the court determines to maintain the case on the docket, it shall render a pretrial order assigning a trial date for the case and setting deadlines for the joining of new parties, all discovery, Filing of all pleadings, the making of a response or supplemental responses to discovery and other pretrial matters. The case may be continued thereafter only for valid and compelling reasons specifically determined by court order. Notice of the signing of the order of dismissal shall be given as provided in Rule 306a. Failure to mail notices as required by this rule shall not affect any of the periods mentioned in Rule 306a except as provided in that rule.
2. Non-Compliance With Time Standards. Any case not disposed of within time standards promulgated by the Supreme Court under its Administrative Rules may be placed on a dismissal docket.
3. Reinstatement. A motion to reinstate shall set forth the grounds therefor and be verified by the movant or his attorney. It shall be filed with the clerk within 30 days after the order of dismissal is signed or within the period provided by Rule 306a. A copy of the motion to reinstate shall be served on each attorney of record and each party not represented by an attorney whose address is shown on the docket or in the papers on file. The clerk shall deliver a copy of the motion to the judge, who shall set a hearing on the motion as soon as practicable. The court shall notify all parties or their attorneys of record of the date, time and place of the hearing. The court shall reinstate the case upon finding after a hearing that the failure of the party or his attorney was not intentional or the result of conscious indifference but was due to an accident or mistake or that the failure has been otherwise reasonably explained.
In the event for any reason a motion for reinstatement is not decided by signed written order within seventy-five days after the judgment is signed, or, within such other time as may be allowed by Rule 306a, the motion shall be deemed overruled by operation of law. If a motion to reinstate is timely filed by any party, the trial court, regardless of whether an appeal has been perfected, has plenary power to reinstate the case until 30 days after all such timely filed motions are overruled, either by a written and signed order or by operation of law, whichever occurs first.
4. Cumulative Remedies. This dismissal and reinstatement procedure shall be cumulative of the rules and laws governing any other procedures available to the parties in such cases. The same reinstatement procedures and timetable are applicable to all dismissals for want of prosecution including cases which are dismissed pursuant to the court's inherent power, whether or not a motion to dismiss has been filed.
Villarreal v. San Antonio Truck & Equip., 994 S.W.2d 628,630 (Tex.l999). "The trial court's authority to dismiss for want of prosecution stems from two sources: (1) [TRCP] 165a... and (2) the court's inherent power. [A] party must be provided with notice and an opportunity to be heard before a court may dismiss a case for want of prosecution under either Rule 165a or its inherent authority. The failure to provide adequate notice of the trial court's intent to dismiss for want of prosecution requires reversal."
Smith v. Babcock & Wilcox Constr. Co., 913 S.W.2d 467, 468 (Tex.l995). "The operative standard (to reinstate after dismissal for want of prosecution) is essentially the same as that for setting aside a default judgment. ... A failure to appear is not intentional or due to conscious indifference within the meaning of the rule merely because it is deliberate; it must also be without adequate justification. Proof of such justification -accident, mistake or other reasonable explanation -negates the intent or conscious indifference for which reinstatement can be denied. ... Also, conscious indifference means more than mere negligence."
Thordson v. City of Houston, 815 S.W.2d 550,550 (Tex.l991). Under the language in TRCP 165a(4), "it was not within the discretion of the trial court to fail to hold an oral hearing on the motion to reinstate."
McConnell v. May, 800 S.W.2d 194, 194 (Tex. 1990). "A proper motion to reinstate must be verified and Filed with the clerk within 30 days of the signing of the order of dismissal. ... Since [the plaintiff] did not File a verified motion to reinstate within 30 days of the signing of the order of dismissal, the trial court's jurisdiction to reinstate the case expired."
Daley v. Powerscreen Tex. Holdings, Inc., __ S.W.3d__,__(Tex-App- Houston [14th Dist.] 1999, n.p.h.) (No. 14-98-00132-CV; 9-30-99). "An oral hearing is required on any timely Filed, verified, motion to reinstate even if the grounds stated in the motion do not warrant mandatory reinstatement of the case. At __ n.2: Thus, ... (1) such a motion to reinstate cannot simply be taken up on a submission docket without oral hearing; and (2) a hearing must be held on a motion to reinstate even where a hearing was already held on the dismissal."
Northbrook Prop. & Cas. Ins. Co. v. C& C Erection, Inc ., __ S.W.3d __, __ (Tex.App.-San Antonio 1999, n.p.h.) (No. 04-98-01063-CV; 9-22-99). "Whether a plaintiff has prosecuted a case with diligence is generally a question of fact. To decide the due diligence issue, the trial court may consider the entire history of the litigation. The traditional factors considered are: (1) the length of time the case was on File; (2) the extent of activity in the case; (3) whether a trial setting was requested; and (4) the existence of reasonable excuses for the delay. No single factor is dispositive. The existence of a belated trial setting or an asserted eagerness to proceed to trial is not conclusive and does not preclude the dismissal of the action."
Burton v. Hoffman, 959 S.W.2d 351, 353 (Tex. App-Austin 1998, no pet.). Under TRCP 165a "a trial court may dismiss a case for failure to appear at trial or a hearing, and the clerk is required to send notice of the court's intention to dismiss and the date and the place of the dismissal hearing to the attorney of record." Texas DPS v. Deck, 954 S.W.2d 108, III (Tex. App.-San Antonio 1997, no writ). "[A] court, on its own, can reinstate a case after dismissal."
Rohus v. Licona, 942 S.W.2d III, 112 (Tex.App- Houston [1st Dist.) 1997, no writ). "A notice of intent to dismiss does not comply with [TRCP] 165a if the notice does not also provide notice of the date and place of the dismissal hearing."
Section 8 Pretrial Procedure
TRCP 166 PRETRIAL CONFERENCE
In an appropriate action, to assist in the disposition of the case without undue expense or burden to the parties, the court may in its discretion direct the attorneys for the parties and the parties or their duly authorized agents to appear before it for a conference to consider:
(a) All pending dilatory pleas, motions and exceptions;
(b) The necessity or desirability of amendments to the pleadings;
(c) A discovery schedule;
(d) Requiring written statements of the parties' contentions;
(e) Contested issues of fact and simplification of the issues;
(f) The possibility of obtaining stipulations of fact;
(g) The identification of legal matters to be ruled on or decided by the court;
(h) The exchange of a list of direct fact witnesses, other than rebuttal or impeaching witnesses the necessity of whose testimony cannot reasonably be anticipated before the time of trial, who will be called to testily at trial, staling their address and telephone number, and the subject of the testimony of each such witness;
(i) The exchange of a list of expert witnesses who will be called to testify at trial, staling their address and telephone number, and the subject of the testimony and opinions that will be proffered by each expert witness;
(j) Agreed applicable propositions of law and contested issues of law;
(k) Proposed jury charge questions, instructions, and definitions for a jury case or proposed findings of fact and conclusions of law for a nonjury case;
(1) The marking and exchanging of all exhibits that any party may use at trial and stipulation to the authenticity and admissibility of exhibits to be used at trial;
(m) Written trial objections to the opposite party's exhibits, staling the basis for each objection;
(n) The advisability of a preliminary reference of issues to a master or auditor for Findings to be used as evidence when the trial is to be by jury;
(o) The settlement of the case, and to aid such consideration, the court may encourage settlement;
(p) Such other matters as may aid in the disposition of the action.
The court shall make an order that recites the action taken at the pretrial conference, the amendments allowed to the pleadings, the time within which same may be filed, and the agreements made by the parties as to any of the matters considered, and which limits the issues for trial to those not disposed of by admissions, agreements of counsel, or rulings of the court; and such order when issued shall control the subsequent course of the action, unless modified at the trial to prevent manifest injustice. The court in its discretion may establish by rule a pretrial calendar on which actions may be placed for consideration as above provided and may either confine the calendar to jury actions or
extend it to all actions.
Koslow's v. Mackie, 796 S.W.2d 700, 703 (Tex. 1990). TRCP 166 "obviously includes the power to order the parties through their attorneys (or through themselves if appearing pro se) to confer to narrow the issues for the written pretrial conference report."
Provident Life & Ace. Ins. Co. v. Hazlitt, 216 S.W.2d 805, 807 (Tex.l949). "The purpose of [TRCP 1661 is to simplify and shorten the trial.... [N]o controverted issues of fact could be adjudicated at [the pretrial] conference, but orders could be entered disposing of issues which are founded upon admitted or undisputed facts."
Lindley v. Johnson, 936 S.W.2d 53,55 (Tex.App-- Tyier 1996, writ denied). "When a trial court's pretrial scheduling order changes the deadlines set forth in a procedural rule, the trial court's order prevails."
Masterson v. Cox, 886 S.W.2d 436,439 (Tex.App- Houston [ 1st Dist.] 1994, no writ). There is "no rule or caselaw that authorizes the trial court to hear evidence of both liability and unliquidated damages in a pretrial conference and to dispose of a case on the merits...."
TRCP 166a SUMMARY JUDGMENT
(a) For Claimant. A party seeking to recover upon a claim, counterclaim, or cross-claim or to obtain a declaratory judgment may, at any time after the adverse party has appeared or answered, move with or without supporting affidavits for a summary judgment in his favor upon all or any part thereof. A summary judgment, interlocutory in character, may be rendered on the issue of liability alone although there is a genuine issue as to amount of damages.
(b) For Defending Party. A party against whom a claim, counterclaim, or cross-claim is asserted or a declaratory judgment is sought may, at any time, move with or without supporting affidavits for a summary judgment in his favor as to all or any part thereof.
(c) Motion and Proceedings Thereon. The motion for summary judgment shall state the specific grounds therefor. Except on leave of court, with notice to opposing counsel, the motion and any supporting affidavits shall be Filed and served at least twenty-one days before the time specified for hearing. Except on leave of court, the adverse party, not later than seven days prior to the day of hearing may File and serve opposing affidavits or other written response. No oral testimony shall be received at the hearing. The judgment sought shall be rendered forthwith if (i) the deposition transcripts, interrogatory answers, and other discovery responses referenced or set forth in the motion or response, and (ii) the pleadings, admissions, affidavits, stipulations of the parties, and authenticated or certified public records, if any, on File at the time of the hearing, or Filed thereafter and before judgment with permission of the court, show that, except as to the amount of damages, there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law on the issues expressly set out in the motion or in an answer or any other response. Issues not expressly presented to the trial court by written motion, answer or other response shall not be considered on appeal as grounds for reversal. A summary judgment may be based on uncontroverted testimonial evidence of an interested witness, or of an expert witness as to subject matter concerning which the trier of fact must be guided solely by the opinion testimony of experts, if the evidence is clear, positive and direct, otherwise credible and free from contradictions and inconsistencies, and could have been readily controverted.
(d) Appendices, References and Other Use of Discovery Not Otherwise on File. Discovery products not on File with the clerk may be used as summary judgment evidence if copies of the material, appendices containing the evidence, or a notice containing specific references to the discovery or specific references to other instruments, are Filed and served on all parties together with a statement of intent to use the specified discovery as summary judgment proofs: (i) at least twenty-one days before the hearing if such proofs are to be used to support the summary judgment; or (ii) at least seven days before the hearing if such proofs are to be used to oppose the summary judgment.
(e) Case Not Fully Adjudicated on Motion. If summary judgment is not rendered upon the whole case or for all the relief asked and a trial is necessary, the judge may at the hearing examine the pleadings and the evidence on file, interrogate counsel, ascertain what material fact issues exist and make an order specifying the facts that are established as a matter of law, and directing such further proceedings in the action as are just.
(f) Form of Affidavits; Further Testimony. Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the afFiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith. The court may permit affidavits to be supplemented or opposed by depositions or by further affidavits. Defects in the form of affidavits or attachments will not be grounds for reversal unless specifically pointed out by objection by an opposing party with opportunity, but refusal, to amend.
(g) When Affidavits Are Unavailable. Should it appear from the affidavits of a party opposing the motion that he cannot for reasons stated present by affidavit facts essential to justify his opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just.
(h) Affidavits Made in Bad Faith. Should it appear to the satisfaction of the court at any time that any of the affidavits presented pursuant to this rule are presented in bad faith or solely for the purpose of delay, the court shall forthwith order the party employing them to pay to the other party the amount of the reasonable expenses which the filing of the affidavits caused him to incur, including reasonable attorney's fees, and any offending party or attorney may be adjudged guilty of contempt.
(i) No-Evidence Motion. After adequate time for discovery, a party without presenting summary judgment evidence may move for summary judgment on the ground that there is no evidence of one or more essential elements of a claim or defense on which an adverse party would have the burden of proof at trial. The motion must state the elements as to which there is no evidence. The court must grant the motion unless the respondent produces summary judgment evidence raising a genuine issue of material fact.
SJ Hearing
Martin v. Martin, Martin & Richards, Inc., 989 S.W.2d 357, 359 (Tex.l998). "An oral hearing on a motion for summary judgment may be helpful ... just as oral argument is often helpful on appeal, but since oral testimony cannot be adduced in support of or opposition to a motion for summary judgment, an oral hearing is not mandatory. Notice of hearing or submission of a summary judgment motion, however, is required, although as the court of appeals said, it is not 'jurisdictional'. The hearing date determines the time for response to the motion; without notice of hearing, the respondent cannot know when the response is due."
SJ Notice
Lenert v. State Farm Lloyds Ins. Co., __ S.W.3d __, __ (Tex-App- Corpus Christi 1999, n.p.h.) (No. 13-97-422-CV; 8-26-99). "The 21 day notice requirement does not apply to a resetting of the motion provided the non-movant had 21 days notice."
Traditional SJ
Rhone-Poulenc, Inc. v. Steel, 997 S.W.2d 217,224 (Tex.l999). " [N] either of the agreed case management orders facially purports to shift the burden of raising fact issues on limitations, the discovery rule, or causation to the [Ps]. The [Ps] only agreed to and the orders only obligated them to provide, on a day certain, the affidavits described above. We conclude that neither case management order served to shift the burden of proof under [TRCP] 166a(c)."
Park Place Hasp. v. Estate of Milo, 909 S.W.2d 508, 510 (Tex.l995). For defendants "to prevail, they were required to prove that there was no genuine issue as to any material fact and that they were entitled to judgment as a matter of law.... In reviewing a summary judgment, we must accept as true evidence favoring the nonmovant, indulging every reasonable inference and resolving all doubts in the nonmovant's favor."
Cathey v. Booth, 900 S.W.2d 339, 341 (Tex.l995). "A defendant who conclusively negates at least one of the essential elements of each of the plaintiffs causes of action or who conclusively establishes all of the elements of an affirmative defense is entitled to summary judgment."
No-Evidence SJ
Thomas v. Clayton Williams Energy, Inc., __ S.W.3d __, __ n.l (Tex.App- Houston [14th Dist.] 1999, n.p.h.) (No. 14-98-00583-CV; 9-23-99). "[A]fter reviewing the record, it is unclear whether [D] moved for summary judgment under [TRCP] 166a(b) or [TRCP] 166a(i). As a result, [D] failed to give [P] 'fair notice' that it was moving for summary judgment under rule 166a(i)."
Saenz v. Southern Un. Gas Co., 999 S.W.2d 490, 493-94 (Tex.App-El Paso 1999, n.p.h.) (No. 08-98- 00175-CV; 7-29-99). "To marshal one's evidence is to arrange all of the evidence in the order that it will be presented at trial. A party is not required to present or arrange all of its evidence in response to a summary judgment motion."
Aguirre v. South Tex. Blood & Tissue Ctr., ___ S.W.3d __, __ (Tex.App.-San Antonio 1999, n.p.h.) (No. 04-98-00688-CV; 7-21-99). "A no-evidence summary judgment is the functional equivalent of a pretrial directed verdict...."
Grant v. Southwestern Elec. Power Co., 998 S.W.2d 383, 387-88 (Tex.App.-Texarkana 1999, n.p.h.). "[D's] motion contained both a no-evidence summary judgment motion under [TRCP] 166a(i) and an ordinary summary judgment motion, under [TRCP] 166a(b) & (c). The rules do not prohibit such a hybrid motion, but we think the better practice is either to File two separate motions, one containing the no evidence summary judgment and one containing the ordinary summary judgment, or to File one document containing both motions but with the arguments and authorities for each clearly delineated and separate from one another."
Denton v. Big Spring Hasp. Corp., 998 S.W.2d294, 298 (Tex.App- Eastland 1999, n.p.h.). "The motion must specifically state the elements for which there is no evidence. ... The rule requires a motion to be specific in alleging a lack of evidence on an essential element of a plaintiffs cause of action, but it does not require that the motion specifically attack the evidentiary components that may prove an element of the cause of action."
Abraham v. Ryland Mtg. Co., 995 S.W.2d 890,892 (Tex.App.-El Paso 1999, n.p.h.). "There is no reference to any element of [P's] cause of action as [TRCPI 166a(i) requires, nor is there any reference to any specific allegation contained in [P's] petition. Accordingly, [D's] motion did not meet the requirements of the Rule and the trial court could not have appropriately granted summary judgment on that ground."
Lampasas v. Spring Ctr" Inc., 988 S.W.2d 428,432 (Tex.App.-Houston [HthDist.] 1999, n.p.h.). "The new no evidence summary judgment shifts the burden of proof to the nonmovant to present enough evidence to be entitled to a trial. If the nonmovant is unable to provide enough evidence, then trial court must grant the motion."
Macias v. Fiesta Mart, Inc., 988 S.W.2d 316,316- 17 (Tex.App- Houston [1st Dist.] 1999, n.p.h.). "In a no-evidence summary judgment, the movant must specifically state the elements as to which there is no evidence. The burden then shifts to the non-movant to bring forth evidence that raises a fact issue on the challenged elements."
Esco OU& Gas, Inc. v. Sooner Pipe & Sap. Corp., 962 S.W.2d 193,197 n.3 (Tex.App.-Houston [1st Dist] 1998, pet. denied). Under TRCP 166a(i) "the plaintiff as the nonmovant [has] the burden to raise a triable issue on each element essential to the plaintiffs case against each defendant."
Form of the Motion or Response Abbott Lab., Inc. v. Segura, 907 S.W.2d 503, 507 (Tex.l995). "[A] motion for summary judgment 'shall state the specific grounds [and] issues not expressly presented by written motion, answer, or other response shall not be considered on appeal as grounds for reversal.'"
In re B.LV., 870 S.W.2d 12, 13 (Tex.l994). "A summary judgment should not be based on a pleading deficiency that could be cured by amendment."
McConnell v. Soathside ISD, 858 S.W.2d 337,341 (Tex.l993). "In determining whether grounds are expressly presented, reliance may not be placed upon briefs or summary judgment evidence."
City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex.l979). "The trial court may not grant a summary judgment by default for lack of an answer or response to the motion by the non-movant when the movant's summary judgment proof is legally insufficient."
Digby v. Texas Bank, 943 S.W.2d 914, 928 (Tex. App.-El Paso 1997, writ denied). "Because the rules do not require a written reply to a non-movant's response on summary judgment, substantive objections to the non-movant's affidavits may be raised for the first time on appeal."
SJ Evidence
Wadewitz v. Montgomery, 951 S.W.2d 464, 466 (Tex. 1997). "An expert's testimony will support summary judgment only if it is 'clear, positive and direct, otherwise credible and free from contradictions and inconsistencies, and could have been readily controverted.' Conclusory statements by an expert are insufficient to support or defeat summary judgment."
Trico Tech. Corp. v. Montiel, 949 S.W.2d 308,310 (Tex.l997). "The mere fact that the affidavit is self serving does not necessarily make the evidence an improper basis for summary judgment. Summary judgment based on the uncontroverted affidavit of an interested witness is proper if the evidence is clear, positive, direct, otherwise credible, free from contradictions and inconsistencies, and could have been readily controverted. 'Could have been readily controverted' does not mean that the summary judgment evidence could have been easily and conveniently rebutted, but rather indicates that the testimony could have been effectively countered by opposing evidence."
United Blood Servs. v. Longoria, 938 S.W.2d 29,30 (Tex.l997). "When a party relies on expert testimony, this requirement includes proof of the expert's qualifications. [II] Whether a witness is qualified to offer expert testimony is a matter committed to the trial court's discretion."
Benchmark Bank v. Crowder, 919 S.W.2d 657,663 (Tex.l996). "McCool's testimony is not part of the summary judgment record. McCool's affidavit was filed 2 days before the summary judgment hearing. Summary judgment evidence may be Filed late, but only with leave of court.... There is no order in this record granting the Crowders leave to File McCool's affidavit late."
Wilson v. Burford, 904 S.W.2d 628,629 (Tex.l995). "Defendants moved for summary judgment [but their] motion did not incorporate or refer to any specific summary judgment evidence. However, an accompanying brief referred to a deposition attached to the brief.... [ It ] The deposition transcript ... was ... proper summary judgment evidence on which both the movant and the respondent could rely...."
McConathy v. McConathy, 869 S.W.2d 341, 341 (Tex-1994). "(D]eposition excerpts [and other discovery] submitted as summary judgment evidence need not be authenticated. At 342: All parties have ready access to depositions taken in a cause, and thus deposition excerpts submitted with a motion for summary judgment may be easily veriFied as to their accuracy."
Casso v. Brand, 776 S.W.2d 551,558 (Tex.l989). "If the credibility of the affiant ... is likely to be a dispositive factor in the resolution of the case, then summary judgment is inappropriate. On the other hand, if the non-movant must, in all likelihood, come forth with independent evidence to prevail, then summary judgment may well be proper in the absence of such controverting proof."
Watts v. Hermann Hasp., 962 S.W.2d 102, 105 (Tex.App- Houston [IstDist.] 1997, no pet.). "Without a proper objection, defects in the authentication of attachments in support of a motion for summary judgment or response are waived."
Final vs. Partial SJ
Newco Drilling Co. v. Weyand, 960 S.W.2d 654, 656 (Tex.l998). "[A] plaintiff cannot avoid the effects of a partial summary judgment by subsequently filing a nonsuit, and any issues decided in the partial summary judgment are dismissed with prejudice. (A] plaintiff, who after suffering an adverse summary judgment allows his claims to be dismissed for want of prosecution, should likewise be barred from having a second bite at the apple."
Inglish v. Union State Bank, 945 S.W.2d 810, 811 (Tex-1997). "In the present case, the court of appeals held that the [summary] judgment was interlocutory, even though it appears on its face to be Final. The court of appeals interpreted Mafrige v. Ross, 866 S.W.2d 590 (Tex.l993)] as instituting merely a presumption of finality when a summary judgment purporting to be Final is presented for appellate review. Reading Mafrige narrowly, the court of appeals refused to apply it to a situation in which the summary judgment appeared Final but was not appealed. This was error."
Page v. Geller, 941 S.W.2d 101, 102 (Tex.l997). "[W]hen a trial court grants more relief than requested and, therefore makes an otherwise partial summary judgment Final, that judgment, although erroneous, is final, and it is appealable. On appeal, the court of appeals must treat the judgment as any other Final judgment. It is to consider all matters raised on appeal and reverse only those portions of the judgment that were rendered in error."
Cincinnati Life Ins. Co. v. Gates, 927 S.W.2d 623, 625(Tex.l996). "Under [TRCP] 166a, a trial court cannot grant summary judgment for a reason that the movant does not present to the trial court in writing. ... [R]ule 166a does not prevent an appellate court from affirming the judgment on other grounds the parties properly raised before the trial court, when the trial court grants summary judgment specifically on fewer than all grounds asserted. Rather, our rules of appellate procedure give appellate courts the authority, when reviewing judgments of lower courts, to render the judgment or decree that the court below should have rendered."
Hyundai Motor Co. v. Alvarado, 892 S.W.2d 853, 855 (Tex.l995). "A partial summary judgment is a decision on the merits unless set aside by the trial court. ... It becomes Final upon the disposition of the other issues of the case. ... Once a judge announces a decision that adjudicates a claim, that claim is no longer subject to the plaintiffs right to nonsuit. ... A nonsuit sought after such a judicial pronouncement results in a dismissal with prejudice as to the issues pronounced in favor of the defendant."
Mafnge v. Ross, 866 S.W.2d 590,592 (Tex.l993). "If a summary judgment order appears to be Final, as evidence by the inclusion of language purporting to dispose of all claims or parties, the judgment should be treated as Final for purposes of appeal. If the judgment grants more relief than requested, it should be reversed and remanded, but not dismissed."
Pleadings in SJ Cases
Sosa v. Central Power & Light, 909 S.W.2d 893, 895 (Tex.l995). "Because the Sosas timely filed their second amended original petition, it superseded their first amended original petition containing the statements on which the defendants based their motion for summary judgment. Contrary to statements in live pleadings, those contained in superseded pleadings are not conclusive and indisputable judicial admissions. ... Therefore, the basis for the defendants' motion no longer existed and summary judgment was improper."
Laidlaw Waste Sys., Inc. v. City of Wilmer, 904 S.W.2d 656, 660 (Tex.l995). "Generally, pleadings are not competent evidence, even if sworn or verified." Natividad ". Alexsis, Inc., 875 S.W.2d 695, 699 (Tex.l994). "A review of the pleadings [when a summary judgment is based on the pleadings] is de novo, with the reviewing court taking all allegations, facts, and inferences in the pleadings as true and viewing them in a light most favorable to the pleader. The reviewing court will affirm the summary judgment only if the pleadings are legally insufficient."
Motion for Continuance
Tenneco, Inc. v. Enterprise Prods. Co., 925 S.W.2d 640, 647 (Tex.l996). "When a party contends that it has not had an adequate opportunity for discovery before a summary judgment hearing, it must file either an affidavit explaining the need for further discovery or a verified motion for continuance. [ If ] The determination to allow the Enterprise Parties more time for discovery was within the trial court's discretion."
Flores v. Snelling, __ S.W.3d __, __ (Tex. App-Texarkana 1999, n.p.h.) (No. 06-98-00046-CV; 9- 14-99). "We do not find that [TRCP 166a(i)] places a burden of proof on the movant to show that adequate time for discovery has passed. If a Rule 166a(i) motion is filed and the nonmovant feels there has not been adequate time for discovery, the nonmovant should file a motion for continuance and has the burden of supporting the need for the motion for continuance."
TRCP 166 170 REPEALED
TRCP 171 MASTER IN CHANCERY
The court may, in exceptional cases, for good cause appoint a master in chancery, who shall be a citizen of this State, and not an attorney for either party to the action, nor related to either party, who shall perform all of the duties required of him by the court, and shall be under orders of the court, and have such power as the master of chancery has in a court of equity.
The order of reference to the master may specify or limit his powers, and may direct him to report only upon particular issues, or to do or perform particular acts, or to receive and report evidence only and may Fix the time and place for beginning and closing the hearings, and for the filing of the master's report. Subject to the limitations and specifications stated in the order, the master has and shall exercise the power to regulate all proceedings in every hearing before him and to do all acts and take all measures necessary or proper for the efficient performance of his duties under the order. He may require the production before him of evidence upon all matters embraced in the reference, including the production of books, papers, vouchers, documents and other writings applicable thereto. He may rule upon the admissibility of evidence, unless otherwise directed by the order of reference and has the authority to put witnesses on oath, and may, himself, examine them, and may call the parties to the action and examine them upon oath. When a party so requests, the master shall make a record of the evidence offered and excluded in the same manner as provided for a court sitting in the trial of a case.
The clerk of the court shall forthwith furnish the master with a copy of the order of reference.
The parties may procure the attendance of witnesses before the master by the issuance and service of process as provided by law and these rules.
The court may confirm, modify, correct, reject, reverse or recommit the report, after it is filed, as the court may deem proper and necessary in the particular circumstances of the case. The court shall award reasonable compensation to such master to be taxed as costs of suit.
Academy of Model Aeronautics, Inc. v. Packer, 860 S.W.2d 419,419 (Tex.l993). "[T]he trial court abused its discretion in entering an order referring all pending and future discovery matters to a master."
Republic Ins. Co. v. Davis, 856 S.W.2d 158, 160 (Tex.l993). "Republic did not have the opportunity to object [to the master's report before the trial court adopted it]. Consequently, without reaching the question of whether an objection is required, we conclude that Republic has not waived error...."
Simpson v. Canales, 806 S.W.2d 802, 811 (Tex. 1991). TRCP 171 "permits appointment of a master only 'in exceptional cases, for good cause'.... [T]his requirement cannot be met merely by showing that a case is complicated or time-consuming, or that the court is busy."
AlU lns. Co. v. Mehaffy, 942 S.W.2d 796,803 (Tex. App.-Beaumont 1997, orig. proceeding). "The cases construing [TRCP] 171 provide that if a party timely and formally objects to a master's ruling, that party is entitled to a de novo hearing before a judge or jury. We conclude this right is automatic and not subject to a harmless error analysis."
TRCP 172 AUDIT
When an investigation of accounts or examination of vouchers appears necessary for the purpose of justice between the parties to any suit, the court shall appoint an auditor or auditors to state the accounts between the parties and to make report thereof to the court as soon as possible. The auditor shall verify his report by his affidavit staling that he has carefully examined the state of the account between the parties, and that his report contains a true statement thereof, so far as the same has come within his knowledge. Exceptions to such report or of any item thereof must be filed within 30 days of the filing of such report. The court shall award reasonable compensation to such auditor to be taxed as costs of suit.
AlU lns. Co. v. Mehaffy, 942 S.W.2d 796, 800-01 (Tex. App.-Beaumont 1997, orig. proceeding). "[T]he order does not state what authority the court relied upon in appointing the auditor. ... Although the word 'auditor' is used, it does not appear [TRCP] 172 was the basis since this was not 'an investigation of accounts or examination of vouchers.'"
Lovelace v. Sabine Consol., Inc., 733 S.W.2d 648, 656 (Tex.App- Houston [14th Dist.] 1987, writ denied). "The audit report before this court contains no ... affidavit as is required by [TRCP] 172. ... Further, 6 days before trial Sabine filed an objection to the audit. Therefore, the trial court did not err in admitting evidence that contradicted and supplemented the auditor's report."
TRCP 173 GUARDIAN AD LITEM
When a minor, lunatic, idiot or a non-compos mentis may be a defendant to a suit and has no guardian within this State, or where such person is a party to a suit either as plaintiff, defendant or intervenor and is represented by a next friend or a guardian who appears to the court to have an interest adverse to such minor, lunatic, idiot or non-compos mentis, the court shall appoint a guardian ad litem for such person and shall allow him a reasonable fee for his services to be taxed as a part of the costs.
Garcia v. Martinez, 988 S.W.2d 219, 222 (Tex. 1998). "A guardian ad litem is entitled to a reasonable fee for his services to be taxed as a part of the costs. ... Generally, trial courts employ the same factors used to determine the reasonableness of attorney's fees to ascertain an appropriate guardian ad litem fee. These factors include: (1) the time and labor required, the novelty and difficulty of the questions involved, and the skill required to perform the legal service properly; (2) the likelihood ... that the acceptance of the particular employment will preclude other employment by the lawyer; (3) the fee customarily charged in the locality for similar legal services; (4) the amount involved and the results obtained; (5) the time limitations imposed by the client or by the circumstances; (6) the nature and length of the professional relationship with the client; (7) the experience, reputation, and ability of the lawyer or lawyers performing the services; and (8) whether the fee is fixed or contingent on results obtained or uncertainty of collection before the legal services have been rendered."
American Gen. Fire & Cas. Co. v. Vandewater, 907 S.W.2d 491, 493 n.2 (Tex.l995). "A guardian ad litem is not an attorney for the child but an officer appointed by the court to assist in properly protecting the child's interests.... A guardian ad litem is the personal representative of the minor appointed to protect the interests of the minor in a lawsuit in which the minor is a party.... The guardian ad litem is required to participate in the case to the extent necessary to protect the minor."
Brownsville Valley Reg. Med. Cent. v. Gamez, 894 S.W.2d 753, 755 (Tex.l995). "The trial court can appoint a guardian ad litem pursuant to [TRCP] 173 only when there is a conflict of interest between the minor and next friend. ... When the conflict of interest no longer exists, the trial court should remove the guardian ad litem."
Korn v. Simmons, __ S.W.3d __, __ (Tex. App-Dallas 1999, n.p.h.) (No. 05-96-01777-CV; 9-3- 99). "Although a guardian ad litem has considerable latitude in determining what activities, including hearings and conferences, are necessary to adequately protect the minor's interest, the trial court has discretion to determine whether a guardian ad litem's activities were beyond the scope of his duties."
TRCP 174 CONSOLIDATION SEPARATE TRIALS
(a) Consolidation. When actions involving a common question of law or fact are pending before the court, it may order a joint hearing or trial of any or all the matters in issue in the actions; it may order all the actions consolidated; and it may make such orders concerning proceedings therein as may tend to avoid unnecessary costs or delay.
(b) Separate Trials. The court in furtherance of convenience or to avoid prejudice may order a separate trial of any claim, cross-claim, counterclaim, or third-party claim, or of any separate issue or of any number of claims, cross-claims, counterclaims, third-party claims, or issues.
In re Ethyl Corp., 975 S.W.2d 606, 611-12 (Tex. 1998). "The maximum number of claims that can be aggregated is not an absolute, and the particular circumstances determine the outer limits beyond which trial courts cannot go. I If] While considerations of judicial economy are a factor, '[c]onsiderations of convenience and economy must yield to a paramount concern for a fair and impartial trial.'"
Liberty Nat'l Fire Ins. Co. v. Akin, 927 S.W.2d 627, 630 (Tex.l996). "A severance may ... be necessary in some bad faith [and contract] cases. A trial court will ... confront instances in which evidence admissible only on the bad faith claim would prejudice the insurer to such an extent that a fair trial on the contract claim would become unlikely. One example would be when the insurer has made a settlement offer on the disputed contract claim."
Transportation Ins. Co. v. Moriel, 879 S.W.2d 10, 30 (Tex.l994). "[A] trial court, if presented with a timely motion, should bifurcate the determination of the amount of punitive damages from the remaining issues.... Under this approach, the jury First hears evidence relevant to liability for actual damages, the amount of actual damages, and liability for punitive damages... and then returns Findings on these issues."
Owens-Corning Fiberglas Corp. v. Martin, 942 S.W.2d 712, 716 (Tex.App-Dallas 1997, no writ). TRCP 174 "gives the trial court broad discretion to consolidate cases with common issues of law or fact. [ If ] In deciding whether to consolidate, the trial court must balance the judicial economy and convenience that may be gained by the consolidation against the risk of an unfair outcome because of prejudice or jury confusion. [ If ] Even if the cases share common questions of law and fact, an abuse of discretion may be found if the consolidation results in prejudice to the complaining party."
TRCP 175 ISSUE OF LAW and DILATORY PLEAS
When a case is called for trial in which there has been no pretrial hearing as provided by Rule 166, the issues of law arising on the pleadings, all pleas in abatement and other dilatory pleas remaining undisposed of shall be determined; and it shall be no cause for postponement of a trial of the issues of law that a party is not prepared to try the issues of fact.
Garcia v. TEIA, 622 S.W.2d 626, 630 n.3 (Tex. App.-Amarillo 1981, writ refd n.r.e.). "The language of [TRCP] 175 imposes on the partly relying upon a dilatory plea a duty to demand action by the court thereon at the time the rule requires action by the court, and his failure to do so is a waiver of the plea."
Section 9 Evidence and Discovery
A Evidence
TRCP 176 SUBPOENAS
176.1 Form. Every subpoena must be issued in the name of "The State of Texas" and must:
(a) state the style of the suit and its cause number:
(b) state the court in which the suit is pending;
(c) state the date on which the subpoena is issued;
(d) identify the person to whom the subpoena is directed;
(e) state the time, place, and nature of the action required by the person to whom the subpoena is directed, as provided in Rule 176.2;
(f) identify the party at whose instance the subpoena is issued, and the party's attorney of record, if any;
(g) state the text of Rule 176.8(a); and
(h) be signed by the person issuing the subpoena.
176.2 Required Actions. A subpoena must command the person to whom it is directed to do either or both of the following:
(a) attend and give testimony at a deposition, hearing, or trial;
(b) produce and permit inspection and copying of designated documents or tangible things in the possession, custody, or control of that person.
176.3 Limitations.
(a) Range. A person may not be required by subpoena to appear or produce documents or other things in a county that is more than 150 miles from where the person resides or is served. However, a person whose appearance or production at a deposition may be compelled by notice alone under Rules 199.3 or 200.2 maybe required to appear and produce documents or other things at any location permitted under Rules 199.2(b)(2).
(b) Use for discovery. A subpoena may not be used for discovery to an extent, in a manner, or at a time other than as provided by the rules governing discovery.
176.4 Who May Issue. A subpoena may be issued by:
(a) the clerk of the appropriate district, county, or justice court, who must provide the party requesting the subpoena with an original and a copy for each witness to be completed by the party;
(b) an attorney authorized to practice in the State of Texas, as an officer of the court; or
(c) an officer authorized to take depositions in this State, who must issue the subpoena immediately on a request accompanied by a notice to take a deposition under Rules 199 or 200, or a notice under Rule 205.3, and who may also serve the notice with the subpoena.
176.5 Service.
(a) Manner of service. A subpoena may be served at any place within the State of Texas by any sheriff or constable of the State of Texas, or any person who is not a party and is 18 years of age or older. A subpoena must be served by delivering a copy to the witness and tendering to that person any fees required by law. If the witness is a party and is represented by an attorney of record in the proceeding, the subpoena may be served on the witness's attorney of record.
(b) Proof of service. Proof of service must be made by Filing either:
(1) the witness's signed written memorandum attached to the subpoena showing that the witness accepted the subpoena; or
(2) a statement by the person who made the service staling the date, time, and manner of service, and the name of the person served.
176.6 Response.
(a) Compliance required. Except as provided in this subdivision, a person served with a subpoena must comply with the command stated therein unless discharged by the court or by the party summoning such witness. A person commanded to appear and give testimony must remain at the place of deposition, hearing, or trial from day to day until discharged by the court or by the party summoning the witness.
(b) Organizations. If a subpoena commanding testimony is directed to a corporation, partnership, association, governmental agency, or other organization, and the matters on which examination is requested are described with reasonable particularity, the organization must designate one or more persons to testify on its behalf as to matters known or reasonably available to the organization.
(c) Production of documents or tangible things. A person commanded to produce documents or tangible things need not appear in person at the time and place of production unless the person is also commanded to attend and give testimony, either in the same subpoena or a separate one. A person must produce documents as they are kept in the usual course of business or must organize and label them to correspond with the categories in the demand. A person may withhold material or information claimed to be privileged but must comply with Rule 193.3. A nonparty's production of a document authenticates the document for use against the nonparty to the same extent as a party's production of a document is authenticated for use against the party under Rule 193.7.
(d) Objections. A person commanded to produce and permit inspection or copying of designated documents and things may serve on the party requesting issuance of the subpoena-before the time specified for compliance-written objections to producing any or all of the designated materials. A person need not comply with the part of a subpoena to which objection is made as provided in this paragraph unless ordered to do so by the court. The party requesting the subpoena may move for such an order at any time after an objection is made.
(e) Protective orders. A person commanded to appear at a deposition, hearing, or trial, or to produce and permit inspection and copying of designated documents and things, and any other person affected by the subpoena, may move for a protective order under Rule 192.6(b)-before the time specified for compliance- either in the court in which the action is pending or in a district court in the county where the subpoena was served. The person must serve the motion on all parties in accordance with Rule 21 a. A person need not comply with the part of a subpoena from which protection is sought under this paragraph unless ordered to do so by the court. The party requesting the subpoena may seek such an order at any time after the motion for protection is filed.
(f) Trial subpoenas. A person commanded to attend and give testimony, or to produce documents or things, at a hearing or trial, may object or move for protective order before the court at the time and place specified for compliance, rather than under paragraphs (d) and (e).
176.7 Protection of Person from Undue Burden and Expense. A party causing a subpoena to issue must take reasonable steps to avoid imposing undue burden or expense on the person served. In ruling on objections or motions for protection, the court must provide a person served with a subpoena an adequate time for compliance, protection from disclosure of privileged material or information, and protection from undue burden or expense. The court may impose reasonable conditions on compliance with a subpoena, including compensating the witness for undue hardship.
176.8 Enforcement of Subpoena.
(a) Contempt. Failure by any person without adequate excuse to obey a subpoena served upon that person may be deemed a contempt of the court from which the subpoena is issued or a district court in the county in which the subpoena is served, and may be punished by fine or confinement, or both.
(b) Proof of payment of fees required for fine or attachment. A fine may not be imposed, nor a person served with a subpoena attached, for failure to comply with a subpoena without proof by affidavit of the party requesting the subpoena or the party's attorney of record that all fees due the witness by law were paid or tendered.
Automatic Drilling Machs., Inc. v. Miller, 515 S.W.2d 256, 259 (Tex.l974). "On motion ... made ... the court is authorized by [now TRCP 176.7] to quash or modify the subpoena if it is unreasonable or oppressive or condition denial of the motion on advancement of reasonable costs by the party in whose behalf the subpoena was issued."
St. Luke's Episcopal Hasp. v. Garcia, 928 S.W.2d 307, 310 (Tex.App- Houston [14th Dist.] 1996, orig. proceeding). "In determining whether a deposition notice or subpoena duces tecum is unreasonable and oppressive, the following factors are relevant: '(1) the quantity of materials subpoenaed, (2) the ease or difficulty of collecting and transporting the materials, (3) the length of time before the deposition, (4) the availability of the information from other sources, and (5) the relevance of the materials.'"
Dr. Pepper Co. v. Davis, 745 S.W.2d 470,471 (Tex. App.-Austin 1988, orig. proceeding). "The uncontroverted proof is that [ the witness ] is a resident of Dallas and that the distance between Austin and Dallas is approximately 200 miles. It follows that [the witness] is beyond the subpoena power of the district court of Travis County."
Kieffer v. Miller, 560 S.W.2d 431,432 (Tex.App- Beaumont 1977, writ ref'd n.r.e.). "Plaintiffs' motion for a writ of attachment for [the witness] contained no affidavit that 'all lawful fees' had been paid or tendered to [the witness]. This, in and of itself, was adequate grounds for the trial judge to deny plaintiffs' request for a writ of attachment for [ the witness ]."
TRCP 177 179 REPEALED
TRCP 180 REFUSAL TO TESTIFY
Any witness refusing to give evidence may be committed to jail, there to remain without bail until such witness shall consent to give evidence.
TRCP 181 PARTY AS WITNESS
Either party to a suit may examine the opposing party as a witness, and shall have the same process to compel his attendance as in the case of any other witness.
TRCP 182 182a REPEALED
TRCP 183 INTERPRETERS
The court may appoint an interpreter of its own selection and may fix the interpreter's reasonable compensation. The compensation shall be paid out of funds provided by law or by one or more of the parties as the court may direct, and may be taxed ultimately as costs, in the discretion of the court.
TRCP 184 184a REPEALED
TRCP 185 SUIT ON ACCOUNT
When any action or defense is founded upon an open account or other claim for goods, wares and merchandise, including any claim for a liquidated money demand based upon written contract or founded on business dealings between the parties, or is for personal service rendered, or labor done or labor or materials furnished, on which a systematic record has been kept, and is supported by the affidavit of the party, his agent or attorney taken before some officer authorized to administer oaths, to the effect that such claim is, within the knowledge of affiant, just and true, that it is due, and that all just and lawful offsets, payments and credits have been allowed, the same shall be taken as prima facie evidence thereof, unless the party resisting such claim shall file a written denial, under oath. A party resisting such a sworn claim shall comply with the rules of pleading as are required in any other kind of suit, provided, however, that if he does not timely file a written denial, under oath, he shall not be permitted to deny the claim, or any item therein, as the case may be. No particularization or description of the nature of the component parts of the account or claim is necessary unless the trial court sustains special exceptions to the pleadings.
Vance v. Holloway, 689 S.W.2d 403, 403-04 (Tex. 1985). "The petition and affidavit filed by Vance clearly met the requirements of [TRCP] 185. Holloway answered by way of an unverified general denial only. He failed to meet the requirements of [TRCP] 185 and 93(10) which state that a written denial of the plaintiffs action must be verified. [If] Holloway ... therefore, waived his right to dispute the amount and ownership of the account."
Rizk v. Financial Guardian Ins. Agency, Inc., 584 S.W.2d 860,862 (Tex.l979). "In the absence of a sworn denial meeting the requirements of the rule, the account is received as prima facie evidence as against a defendant sued thereon, and the defendant may not dispute the receipt of the items or services, or the correctness of the stated charges...."
Powers v. Adams, __ S.W.3d __, __ (Tex.App-- Houston [14th Dist] 1999, n.p.h.) (No. 14-97-01246- CV; 8-5-99Y "Under [TRCP 185]. a plaintiffs petition on sworn account must contain a systematic, itemized statement of the goods or services sold, reveal offsets made to the account, and be supported by an affidavit staling the claim is within the affiant's knowledge, and that it is 'just and true.'"
Bird v. Forst Deposit Nat'1 Bank, 994 S.W.2d 280, 282 (Tex-App- El Paso 1999, n.p.h.). "We find that a credit card issued by a financial institution does not create the sort of debtor-creditor relationship required in order to bring suit under [TRCP] 185."
Worley v. Butler, 809 S.W.2d 242,245 (Tex.App- Corpus Christi 1990, no writ). "To prevail in a cause of action on sworn account, a party must show: (1) that there was a sale and delivery of the merchandise or performance of the services; (2) that the amount of the account is just, that is, that the prices were charged in accordance with an agreement or in the absence of an agreement, they are the usual, customary and reasonable prices for that merchandise or services; and (3) that the amount is unpaid."
B Discovery
TRCP 186 189 REPEALED
TRCP 190 DISCOVERY LIMITATIONS
190.1 Discovery Control Plan Required. Every case must be governed by a discovery control plan as provided in this Rule. A plaintiff must allege in the first numbered paragraph of the original petition whether discovery is intended to be conducted under Level 1,2, or 3 of this Rule.
190.2 Discovery Control Plan-Suits Involving ,000 or Less (Level 1).
(a) Application. This subdivision applies to:
(1) any suit in which all plaintiffs affirmatively plead that they seek only monetary relief aggregating ,000 or less, excluding costs, pre-judgment interest and attorneys' fees, and
(2) any suit for divorce not involving children in which a party pleads that the value of the marital estate is more than zero but not more than ,000.
(b) Exceptions. This subdivision does not apply if:
(1) the parties agree that Rule 190.3 should apply;
(2) the court orders a discovery control plan under Rule 190.4; or
(3) any party files a pleading or an amended or supplemental pleading that seeks relief other than that to which this subdivision applies.
A pleading, amended pleading (including trial amendment), or supplemental pleading that renders this subdivision no longer applicable may not be filed without leave of court less than 45 days before the date set for trial. Leave may be granted only if good cause for filing the pleading outweighs any prejudice to an opposing party.
(c) Limitations. Discovery is subject to the limitations provided elsewhere in these rules and to the following additional limitations:
(1) Discovery period. All discovery must be conducted during the discovery period, which begins when the suit is filed and continues until 30 days before the date set for trial.
(2) Total time for oral depositions. Each party may have no more than six hours in total to examine and cross-examine all witnesses in oral depositions. The parties may agree to expand this limit up to ten hours in total, but not more except by court order. The court may modify the deposition hours so that no party is given unfair advantage.
(3) Interrogatories. Any party may serve on any other party no more than 25 written interrogatories, excluding interrogatories asking a party only to identify or authenticate specific documents. Each discrete subpart of an interrogatory is considered a separate interrogatory.
(d) Reopening discovery. When the filing of a pleading or an amended or supplemental pleading renders this subdivision no longer applicable, the discovery period reopens, and discovery must be completed within the limitations provided in Rules 190.3 or 190.4, whichever is applicable. Any person previously deposed may be redeposed. On motion of any party, the court should continue the trial date if necessary to permit completion of discovery.
190.3 Discovery Control Plan-By Rule (Level 2).
(a) Application. Unless a suit is governed by a discovery control plan under Rules 190.2 or 190.4, discovery must be conducted in accordance with this subdivision.
(b) Limitations. Discovery is subject to the limitations provided elsewhere in these rules and to the following additional limitations:
(1) Discovery period. All discovery must be conducted during the discovery period, which begins when suit is filed and continues until:
(A) 30 days before the date set for trial, in cases under the Family Code; or
(B) in other cases, the earlier of
(i) 30 days before the date set for trial, or
(ii) nine months after the earlier of the date of the first oral deposition or the due date of the first response to written discovery.
(2) Total time for oral depositions. Each side may have no more than 50 hours in oral depositions to examine and cross-examine parties on the opposing side, experts designated by those parties, and persons who are subject to those parties' control. "Side" refers to all the litigants with generally common interests in the litigation. If one side designates more than two experts, the opposing side may have an additional six hours of total deposition time for each additional expert designated. The court may modify the deposition hours and must do so when a side or party would be given unfair advantage.
(3) Interrogatories. Any party may serve on any other party no more than 25 written interrogatories, excluding interrogatories asking a party only to identify or authenticate specific documents. Each discrete subpart of an interrogatory is considered a separate interrogatory.
190.4 Discovery Control Plan-By Order (Level 3).
(a) Application. The court must, on a party's motion, and may, on its own initiative, order that discovery be conducted in accordance with a discovery control plan tailored to the circumstances of the specific suit. The parties may submit an agreed order to the court for its consideration. The court should act on a party's motion or agreed order under this subdivision as promptly as reasonably possible.
(b) Limitations. The discovery control plan ordered by the court may address any issue concerning discovery or the matters listed in Rule 166, and may change any limitation on the time for or amount of discovery set forth in these rules. The discovery limitations of Rule 190.2, if applicable, or otherwise of Rule 190.3 apply unless specifically changed in the discovery control plan ordered by the court. The plan must include:
(1) a date for trial or for a conference to determine a trial setting;
(2) a discovery period during which either all discovery must be conducted or all discovery requests must be sent, for the entire case or an appropriate phase of it;
(3) appropriate limits on the amount of discovery;
and
(4) deadlines for joining additional parties, amending or supplementing pleadings, and designating expert witnesses.
190.5 Modification of Discovery Control Plan. The court may modify a discovery control plan at any time and must do so when the interest of justice requires. The court must allow additional discovery:
(a) related to new, amended or supplemental pleadings, or new information disclosed in a discovery response or in an amended or supplemental response, if:
(1) the pleadings or responses were made after the deadline for completion of discovery or so nearly before that deadline that an adverse party does not have an adequate opportunity to conduct discovery related to the new matters, and
(2) the adverse party would be unfairly prejudiced without such additional discovery;
(b) regarding matters that have changed materially after the discovery cutoff if trial is set or postponed so that the trial date is more than three months after the discovery period ends.
190.6 Certain Types of Discovery Excepted. This rule's limitations on discovery do not apply to or include discovery conducted under Rule 202 ("Depositions Before Suit or to Investigate Claims"), or Rule 621a ("Discovery and Enforcement of Judgment"). But Rule 202 cannot be used to circumvent the limitations of this rule.
In re Alford Chevrolet-Geo, 997 S.W.2d 173, 181 (Tex.l999). " [C]ourts may limit discovery pending resolution of threshold issues like venue, jurisdiction, forum non conveniens, and official immunity."
TRCP 191 MODIFYING DISCOVERY PROCEDURES and LIMITATIONS. CONFERENCE REQUIREMENT SIGNING DISCLOSURES DISCOVERY REQUESTS RESPONSES OBJECTIONS FILING REQUIREMENTS
191.1 Modification of Procedures. Except where specifically prohibited, the procedures and limitations set forth in the rules pertaining to discovery may be modified in any suit by the agreement of the parties or by court order for good cause. An agreement of the parties is enforceable if it complies with Rule II or, as it affects an oral deposition, if it is made a part of the record of the deposition.
191.2 Conference. Parties and their attorneys are expected to cooperate in discovery and to make any agreements reasonably necessary for the efficient disposition of the case. All discovery motions or requests for hearings relating to discovery must contain a certificate by the party filing the motion or request that a reasonable effort has been made to resolve the dispute without the necessity of court intervention and the effort failed.
191.3 Signing of Disclosures, Discovery Requests, Notices, Responses, and Objections.
(a) Signature required. Every disclosure, discovery request, notice, response, and objection must be signed:
(1) by an attorney, if the party is represented by an attorney, and must show the attorney's State Bar of Texas identification number, address, telephone number, and fax number, if any; or
(2) by the party, if the party is not represented by an attorney, and must show the party's address, telephone number, and fax number, if any.
(b) Effect of signature on disclosure. The signature of an attorney or party on a disclosure constitutes a certification that to the best of the signer's knowledge, information, and belief, formed after a reasonable inquiry, the disclosure is complete and correct as of the time it is made.
(c) Effect of signature on discovery request, notice, response, or objection. The signature of an attorney or party on a discovery request, notice, response, or objection constitutes a certification that to the best of the signer's knowledge, information, and belief, formed after a reasonable inquiry, the request, notice, response, or objection:
(1) is consistent with the rules of civil procedure and these discovery rules and warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law;
(2) has a good faith factual basis;
(3) is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation; and
(4) is not unreasonable or unduly burdensome or expensive, given the needs of the case, the discovery already had in the case, the amount in controversy, and the importance of the issues at stake in the litigation.
(d) Effect of failure to sign. If a request, notice, response, or objection is not signed, it must be stricken unless it is signed promptly after the omission is called to the attention of the party making the request, notice, response, or objection. A party is not required to take any action with respect to a request or notice that is not signed.
(e) Sanctions. If the certification is false without substantial justification, the court may, upon motion or its own initiative, impose on the person who made the certification, or the party on whose behalf the request, notice, response, or objection was made, or both, an appropriate sanction as for a frivolous pleading or motion under Chapter 10 of the Civil Practice and Remedies Code.
191.4 Filing of Discovery Materials.
(a) Discovery materials not to be filed. The following discovery materials must not be filed:
(1) discovery requests, deposition notices, and subpoenas required to be served only on parties;
(2) responses and objections to discovery requests and deposition notices, regardless on whom the requests or notices were served;
(3) documents and tangible things produced in discovery; and
(4) statements prepared in compliance with Rule 193.3(b) or (d).
(b) Discovery materials to be filed. The following discovery materials must be filed:
(1) discovery requests, deposition notices, and subpoenas required to be served on nonparties;
(2) motions and responses to motions pertaining to discovery matters; and
(3) agreements concerning discovery matters, to the extent necessary to comply with Rule 11.
(c) Exceptions. Notwithstanding paragraph
(a)-
(1) the court may order discovery materials to be filed;
(2) a person may File discovery materials in support of or in opposition to a motion or for other use in a court proceeding; and
(3) a person may File discovery materials necessary for a proceeding in an appellate court.
(d) Retention requirement for persons. Any person required to serve discovery materials not required to be filed must retain the original or exact copy of the materials during the pendency of the case and any related appellate proceedings begun within six months after judgment is signed, unless otherwise provided by the trial court.
(e) Retention requirement for courts. The clerk of the court shall retain and dispose of deposition transcripts and depositions upon written questions as directed by the Supreme Court.
191.5 Service of Discovery Materials. Every disclosure, discovery request, notice, response, and objection required to be served on a party or person must be served on all parties of record.
In re Alford Chevrolet-Geo, 997 S.W.2d 173, 184 (Tex.l999). "[W]e expect class-action litigants to cooperate on discovery plans and make any agreements reasonably necessary for the efficient disposition of the case."
Groves v. Gabriel, 874 S.W.2d 660, 661 n.3 (Tex. 1994). Plaintiff "complains that [D's] motion to compel discovery did not contain the certificate of conference required under (nowTRCP 191.2]. Because this rule is for the beneFit of the trial court, the court's failure to require a certificate of conference does not justify mandamus relief."
USAA v, Thomas, 893 S.W.2d 628,629 (Tex.App-Corpus Christi 1994, writ denied). TRCP 191.2 "ensures that parties will make good faith efforts to settle discovery disputes before Filing sanctions motions and that sanctions motions will be Filed only when court intervention is absolutely necessary. At 630: We hold that the trial court abused its discretion by granting the motion for sanctions without the required certificate of conference."
TRCP 192 PERMISSIBLE DISCOVERY: FORMS & SCOPE; WORK PRODUCT; PROTECTIVE ORDERS; DEFINITIONS
192.1 Forms of Discovery. Permissible forms of discovery are:
(a) requests for disclosure;
(b) requests for production and inspection of documents and tangible things;
(c) requests and motions for entry upon and examination of real property;
(d) interrogatories to a party;
(e) requests for admission;
(f) oral or written depositions; and
(g) motions for mental or physical examinations.
192.2Sequence of Discovery. The permissible forms of discovery may be combined in the same document and may be taken in any order or sequence.
192.3 Scope of Discovery.
(a) Generally. In general, a party may obtain discovery regarding any matter that is not privileged and is relevant to the subject matter of the pending action, whether it relates to the claim or defense of the party seeking discovery or the claim or defense of any other party. It is not a ground for objection that the information sought will be inadmissible at trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.
(b) Documents and tangible things. A party may obtain discovery of the existence, description, nature, custody, condition, location, and contents of documents and tangible things (including papers, books, accounts, drawings, graphs, charts, photographs, electronic or videotape recordings, data, and data compilations) that constitute or contain matters relevant to the subject matter of the action. A person is required to produce a document or tangible thing that is within the person's possession, custody, or control.
(c) Persons with knowledge of relevant facts. A party may obtain discovery of the name, address, and telephone number of persons having knowledge of relevant facts, and a brief statement of each identified person's connection with the case. A person has knowledge of relevant facts when that person has or may have knowledge of any discoverable matter. The person need not have admissible information or personal knowledge of the facts. An expert is "a person with knowledge of relevant facts" only if that knowledge was obtained firsthand or if it was not obtained in preparation for trial or in anticipation of litigation.
(d) Trial witnesses. A party may obtain discovery of the name, address, and telephone number of any person who is expected to be called to testify at trial. This paragraph does not apply to rebuttal or impeaching witnesses the necessity of whose testimony cannot reasonably be anticipated before trial.
(e) Testifying and consulting experts. The identity, mental impressions, and opinions of a consulting expert whose mental impressions and opinions have not been reviewed by a testifying expert are not discoverable. A party may discover the following information regarding a testifying expert or regarding a consulting expert whose mental impressions or opinions have been reviewed by a testifying expert:
(1) the expert's name, address, and telephone number;
(2) the subject matter on which a testifying expert will testify;
(3) the facts known by the expert that relate to or form the basis of the expert's mental impressions and opinions formed or made in connection with the case in which the discovery is sought, regardless of when and how the factual information was acquired;
(4) the expert's mental impressions and opinions formed or made in connection with the case in which discovery is sought, and any methods used to derive them;
(5) any bias of the witness;
(6) all documents, tangible things, reports, models, or data compilations that have been provided to, reviewed by, or prepared by or for the expert in anticipation of a testifying expert's testimony;
(7) the expert's current resume and bibliography.
(f) Indemnity and insuring agreements. Except as otherwise provided by law, a party may obtain discovery of the existence and contents of any indemnity or insurance agreement under which any person may be liable to satisfy part or all of a judgment rendered in the action or to indemnify or reimburse for payments made to satisfy the judgment. Information concerning the indemnity or insurance agreement is not by reason of disclosure admissible in evidence at trial.
(g) Settlement agreements. A party may obtain discovery of the existence and contents of any relevant portions of a settlement agreement. Information concerning a settlement agreement is not by reason of disclosure admissible in evidence at trial.
(h) Statements of persons with knowledge of relevant facts. A party may obtain discovery of the statement of any person with knowledge of relevant facts-a "witness statement"-regardless of when the statement was made. A witness statement is (1) a written statement signed or otherwise adopted or approved in writing by the person making it, or (2) a stenographic, mechanical, electrical, or other type of recording of a witness's oral statement, or any substantially verbatim transcription of such a recording. Notes taken during a conversation or interview with a witness are not a witness statement. Any person may obtain, upon written request, his or her own statement concerning the lawsuit, which is in the possession, custody or control of any party.
(i) Potential parties. A party may obtain discovery of the name, address, and telephone number of any potential party.
(j) Contentions. A party may obtain discovery of any other party's legal contentions and the factual bases for those contentions.
192.4 Limitations on Scope of Discovery. The discovery methods permitted by these rules should be limited by the court if it determines, on motion or on its own initiative and on reasonable notice, that:
(a) the discovery sought is unreasonably cumulative or duplicative, or is obtainable from some other source that is more convenient, less burdensome, or less expensive; or
(b) the burden or expense of the proposed discovery outweighs its likely benefit, taking into account the needs of the case, the amount in controversy, the parties' resources, the importance of the issues at stake in the litigation, and the importance of the proposed discovery in resolving the issues.
192.5 Work Product.
(a) Work product defined. Work product comprises:
(1) material prepared or mental impressions developed in anticipation of litigation or for trial by or for a party or a party's representatives, including the party's attorneys, consultants, sureties, indemnitors, insurers, employees, or agents; or
(2) a communication made in anticipation of litigation or for trial between a partly and the party's representatives or among a party's representatives, including the party's attorneys, consultants, sureties, indemnitors, insurers, employees, or agents.
(b) Protection of work product.
(1) Protection of core work product-attorney mental processes. Core work product-the work product of an attorney or an attorney's representative that contains the attorney's or the attorney's representative's mental impressions, opinions, conclusions, or legal theories-is not discoverable.
(2) Protection of other work product. Any other work product is discoverable only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of the party's case and that the party is unable without undue hardship to obtain the substantial equivalent of the material by other means.
(3) Incidental disclosure of attorney mental processes. It is not a violation of subparagraph (1) if disclosure ordered pursuant to subparagraph (2) incidentally
discloses by inference attorney mental processes otherwise protected under subparagraph (1).
(4) Limiting disclosure of mental processes. If a court orders discovery of work product pursuant to subparagraph (2), the court must-insofar as possible-protect against disclosure of the mental impressions, opinions, conclusions, or legal theories not otherwise discoverable.
(c) Exceptions. Even if made or prepared in anticipation of litigation or for trial, the following is not work product protected from discovery:
(1) information discoverable under Rule 192.3 concerning experts, trial witnesses, witness statements, and contentions;
(2) trial exhibits ordered disclosed under Rule 166 or Rule 190.4;
(3) the name, address, and telephone number of any potential party or any person with knowledge of relevant facts;
(4) any photograph or electronic image of underlying facts (e.g., a photograph of the accident scene) or a photograph or electronic image of any sort that a party intends to offer into evidence; and
(5) any work product created under circumstances within an exception to the attorney-client privilege in Rule 503(d) of the Rules of Evidence.
(d) Privilege. For purposes of these rules, an assertion that material or information is work product is an assertion of privilege.
192.6 Protective Orders.
(a) Motion. A person from whom discovery is sought, and any other person affected by the discovery request, may move within the time permitted for response to the discovery request for an order protecting that person from the discovery sought. A person should not move for protection when an objection to written discovery or an assertion of privilege is appropriate, but a motion does not waive the objection or assertion of privilege. If a person seeks protection regarding the time or place of discovery, the person must state a reasonable time and place for discovery with which the person will comply. A person must comply with a request to the extent protection is not sought unless it is unreasonable under the circumstances to do so before obtaining a ruling on the motion.
(b) Order. To protect the movant from undue burden, unnecessary expense, harassment, annoyance, or invasion of personal, constitutional, or property rights, the court may make any order in the interest of justice and may-among other things-order that:
(1) the requested discovery not be sought in whole or in part;
(2) the extent or subject matter of discovery be limited;
(3) the discovery not be undertaken at the time or place specified;
(4) the discovery be undertaken only by such method or upon such terms and conditions or at the time and place directed by the court;
(5) the results of discovery be sealed or otherwise protected, subject to the provisions of Rule 76a.
192.7 Definitions. As used in these rules-
(a) Written discovery means requests for disclosure, requests for production and inspection of documents and tangible things, requests for entry onto property, interrogatories, and requests for admission.
(b) Possession, custody, or control of an item means that the person either has physical possession of the item or has a right to possession of the item that is equal or superior to the person who has physical possession of the item.
(c) A testifying expert is an expert who may be called to testify as an expert witness at trial.
(d) A consulting expert is an expert who has been consulted, retained, or specially employed by a party in anticipation of litigation or in preparation for trial, but who is not a testifying expert.
Scope of Discovery
G.M. Corp. v. Gayle, 951 S.W.2d 469,474-76 (Tex. 1997). "'The policy behind the consulting expert privilege is to encourage parties to seek expert advice in evaluating their case and to prevent a party from receiving undue benefit from an adversary's efforts and diligence.' [If] Without the consulting-expert privilege, parties would be reluctant to test an uncertain theory, for fear that it would provide evidence for the other side. [If] [T]he consulting-expert privilege is intended to allow 'a consultant to investigate an accident without the risk of furnishing a potential expert witness or at least a theory of recovery or defense to the opposing party.' [If] [W]e conclude that the trial court's crash test order constitutes an abuse of discretion by infringing on General Motors' consulting-expert privilege."
K-Mart Corp. v. Sanderson, 937 S.W.2d 429, 431 (Tex.l996). No "discovery device can be used to 'fish."'
lrving Healthcare Sys. v. Brooks, 927 S.W.2d 12, 18 (Tex.l996). "[R]outine business records of a health-care entity such as a patient's medical records do not become privileged and are not shielded from discovery simply because a medical peer review committee has reviewed or considered them."
Ford Motor Co. v. Leggat, 904 S.W.2d 643, 649 (Tex.l995). "Settlement agreements are discoverable, to the extent they are relevant. Settlement agreements themselves, of course, are not admissible at trial to prove liability."
Monsanto Co. v. May, 889 S.W.2d 274, 276 (Tex. 1994). "A party is entitled to discovery that is relevant to the subject matter of the claim, and which appears reasonably calculated to lead to the discovery of admissible evidence." See also Volkswagen, A.G. v. Valdez,
909 S.W.2d 900,902 (Tex.l995); Texaco, Inc. v. Sanderson, 898 S.W.2d 813,814 (Tex.l995).
Aluminum Co. v. Bullock, 870 S.W.2d 2, 4 (Tex. 1994). TRCP 192.3(e) "provides for discovery of not only the identity, but also the expected substance of the testimony of expert witnesses who will testify at trial. ... When [the expert's] opinion concerning [D's] negligence changed due to the review of additional facts, the [Ps] then had a duty to supplement their discovery responses to disclose the material change."
HousingAuth. ofElPaso v. Rodriguez-Yepez, 843 S.W.2d 475,476 (Tex-1992). "The broad scope of discovery is tempered by the trial court's discretion, properly invoked under [TRCP 192.6], to narrow the scope of discovery on a case by case basis with a protective order."
Jampole v. Touchy, 673 S.W.2d 569, 573 (Tex. 1984), overruled on other grounds. Walker v. Packer, 827 S.W.2d 833, 842 (Tex.l992). "[T]he ultimate purpose of discovery is to seek the truth, so that disputes may be decided by what the facts reveal, not by what facts are concealed. For this reason, discovery is not limited to information that will be admissible at trial. To increase the likelihood that all relevant evidence will be disclosed and brought before the trier of fact, the law circumscribes a significantly larger class of discoverable evidence to include anything reasonably calculated to lead to the discovery of material evidence."
In re Doctors' Hasp., __ S.W.3d __, __ (Tex. App.-San Antonio 1999, orig. proceeding) (No. 04-99- 00465-CV; 8-11-99). We read TRCP 192.3(e)(5) "to permit discovery of bias evidence, other than the personal financial records and appointment books of nonparty witnesses. By ordering the production of these personal records, the trial court abused its discretion."
In re W&G Trucking, Inc., 990 S.W.2d 473,475-76 (Tex.ADD.-Amarillo 1999. n.o.h.). "Relators contended that because the investigator obtained Jamison's statement believing that it was and would remain privileged under former [TRCP] 166b(3)(c), [TRCP] 192 should not be applied to 'this transition case.' (If] As a general rule procedural rules apply to suits filed before the effective date of the rules, provided no vested right is impaired. In this instance the repeal of Rule 166b and the adoption of Rule 192 have not deprived relators of a defense or other substantive right. ... Accordingly, we hold that Rule 192 is applicable to cases pending on Jan. 1, 1999 and that its application in this case has neither violated nor caused relators undue prejudice."
Limitations on Scope of Discovery
In re Alford Chevrolet-Geo, 997 S.W.2d 173, 182 (Tex.l999). " [l]t is within the trial court's discretion to schedule discovery and decide whether and how much discovery is warranted to determine any [class] certification questions. Factors in determining the scope of precertification discovery include the importance, benefit, burden, expense, and time needed to produce the proposed discovery."
Protective Orders
General Tire, Inc. v. Kepple, 970 S.W.2d 520, 524 (Tex.l998). "To the extent that discovery, whether filed or unfiled, is a 'court record' under [TRCP] 76a, the court must follow the stricter standards of that rule to limit its dissemination. At 525: [W]e hold that when a party seeks a protective order under [TRCP 192.6] to restrict the dissemination of unfiled discovery, and no party or intervenor contends that the discovery is a 'court record,' a trial court need not conduct a hearing or render any findings on that issue. If a party or intervenor opposing a protective order claims that the discovery is a 'court record,' the court must make a threshold determination on that issue. However, public notice and a Rule 76a hearing are mandated only if the court finds that the documents are court records."
Crown Central Petro. Corp. v. Garcia, 904 S.W.2d 125, 128 (Tex-1995). "When a party seeks to depose a ... high level corporate official ["apex deposition"] and that official (or the corporation) files a motion for protective order ... denying any knowledge of relevant facts, the trial court should first determine whether the party seeking the deposition has arguably shown that the official has any unique or superior personal knowledge of discoverable information. If the party seeking the deposition cannot [so] show ... the trial court should grant the motion for protective order and first require the party seeking the deposition to attempt to obtain the discovery through less intrusive methods."
Work Product
Goode v. Shoukfeh, 943 S.W.2d 441, 449 (Tex-1997). "Work product of counsel may not be considered by the factfinder unless the privilege has been waived or one of the [TRE] 503 (d) exceptions applies."
Occidental Chem. Corp. v. Banales, 907 S.W.2d 488,490 (Tex.l995). "The attorney work product privilege protects two related but different concepts. First, the privilege protects the attorney's thought process, which includes strategy decisions and issue formulation, and notes or writings evincing those mental processes. Second, the privilege protects the mechanicalcompilation of information to the extent such compilation reveals the attorney's thought processes. The workproduct exemption is of continuing duration."
National Un. Fire Ins. Co. v. Valdez, 863 S.W.2d 458,461 (Tex.l993). "[N]o legitimate purpose is served by allowing a party to discover an opponent's litigation file. Our decision today does not prevent a party from requesting specific documents or categories of documents relevant to issues in a pending case, even though some or all of the documents may be contained in an attorney's files."
National Tank Co. v. Brotherton, 851 S.W.2d 193, 195 (Tex.l993). "[T)he investigatory privileges ... may be overcome where the requesting party demonstrates a substantial need for the materials and undue hardship in obtaining the substantial equivalent of the materials by other means. At 202: We ... conclude that the term 'work product' as used in [TRCP 192.5] applies only to material prepared in anticipation of litigation. At 204: [T]he objective prong [of the test] is satisfiedwhenever the circumstances surrounding the investigation would have indicated to a reasonable person that there was a substantial chance of litigation."
In re Monsanto Co., 998 S.W.2d 917, 929 (Tex. App.-Waco 1999, orig. proceeding). "Both the attorney-client privilege and the work product privilege have been recently expanded-the former by changing from the control-group test to the subject-matter test and the latter by combining privileges and eliminating of the 'subsequent to the occurrence' and 'particular pendingsuit' requirements."
In re Team Transp., Inc., 996 S.W.2d 256, 259 (Tex-App- Houston [14th Dist.] 1999, n.p.h.). "The work product privilege protects 'core work product,' which includes the attorney's 'mental impressions, opinions, conclusions or legal theories.' It also protects 'other work product' unless the party seeking discovery shows a 'substantial need' for the materials and 'undue hardship' in obtaining the substantial equivalent of the materials by other means. 'Witness statements' are not work product, however, even if made or prepared in anticipation of litigation or trial."
Definition
GTE Comm. Sys. Corp. v. Tanner, 856 S.W.2d 725, 729 (Tex.l993). "The phrase, 'possession, custody or control,' within the meaning of [TRCP 192.7(b)], includes not only actual physical possession, but constructive possession, and the right to obtain possession from a third party, such as an agent or representative."
TRCP 193 WRITTEN DISCOVERY: RESPONSE; OBJECTION; ASSERTION OF PRIVILEGE; SUPPLEMENTATION
& AMENDMENT; FAILURE TO TIMELY RESPOND; PRESUMPTION OF AUTHENTICITY
193.1 Responding to Written Discovery; Duty to Make Complete Response. A party must respond to written discovery in writing within the time provided by court order or these rules. When responding to written discovery, a party must make a complete response, based on all information reasonably available to the responding party or its attorney at the time the response is made. The responding party's answers, objections, and other responses must be preceded by the request to which they apply.
193.2 Objecting to Written Discovery.
(a) Form and time for objections. A party must make any objection to written discovery in writing-either in the response or in a separate document-within the time for response. The party must state specifically the legal or factual basis for the objection and the extent to which the party is refusing to comply with the request.
(b) Duty to respond when partially objecting; objection to time or place of production. A party must comply with as much of the request to which the party has made no objection unless it is unreasonable under the circumstances to do so before obtaining a ruling on the objection. If the responding party objects to the requested time or place of production, the responding party must state a reasonable time and place for complying with the request and must comply at that time and place without further request or order.
(c) Good faith basis for objection. A party may object to written discovery only if a good faith factual and legal basis for the objection exists at the time the objection is made.
(d) Amendment. An objection or response to written discovery may be amended or supplemented to state an objection or basis that, at the time the objection or response initially was made, either was inapplicable or was unknown after reasonable inquiry.
(e) Waiver of objection. An objection that is not made within the time required, or that is obscured by numerous unfounded objections, is waived unless the court excuses the waiver for good cause shown.
(f) No objection to preserve privilege. A party should not object to a request for written discovery on the grounds that it calls for production of material or information that is privileged but should instead comply with Rule 193.3. A party who objects to production of privileged material or information does not waive the privilege but must comply with Rule 193.3 when the error is pointed out.
193.3 Asserting a Privilege. A party may preserve a privilege from written discovery in accordance with this subdivision.
(a) Withholding privileged material or information. A party who claims that material or information responsive to written discovery is privileged may withhold the privileged material or information from the response. The party must state-in the response (or an amended or supplemental response) or in a separate document-that:
(1) information or material responsive to the request has been withheld,
(2) the request to which the information or material relates, and
(3) the privilege or privileges asserted.
(b) Description of withheld material or information. After receiving a response indicating that material or information has been withheld from production, the party seeking discovery may serve a written request that the withholding party identify the information and material withheld. Within 15 days of service of that request, the withholding party must serve a response that:
(1) describes the information or materials withheld that, without revealing the privileged information itself or otherwise waiving the privilege, enables other parties to assess the applicability of the privilege, and
(2) asserts a specific privilege for each item or group of items withheld.
(c) Exemption, Without complying with paragraphs (a) and (b), a party may withhold a privileged communication to or from a lawyer or lawyer's representative or a privileged document of a lawyer or lawyer's representative-
(1) created or made from the point at which a party consults a lawyer with a view to obtaining professional legal services from the lawyer in the prosecution or defense of a specific claim in the litigation in which discovery is requested, and
(2) concerning the litigation in which the discovery is requested.
(d) Privilege not waived by production. A party who produces material or information without intending to waive a claim of privilege does not waive that claim under these rules or the Rules of Evidence if-within ten days or a shorter time ordered by the court, after the producing party actually discovers that such production was made-the producing party amends the response, identifying the material or information produced and staling the privilege asserted. If the producing party thus amends the response to assert a privilege, the requesting party must promptly return the specified material or information and any copies pending any ruling by the court denying the privilege.
193.4 Hearing and Ruling on Objections and Assertions of Privilege.
(a) Hearing. Any party may at any reasonable time request a hearing on an objection or claim of privilege asserted under this rule. The party making the objection or asserting the privilege must present any evidence necessary to support the objection or privilege. The evidence may be testimony presented at the hearing or affidavits served at least seven days before the hearing or at such other reasonable time as the court permits. If the court determines that an in camera review of some or all of the requested discovery is necessary, that material or information must be segregated and produced to the court in a sealed wrapper within a reasonable time following the hearing.
(b) Ruling. To the extent the court sustains the objection or claim of privilege, the responding party has no further duty to respond to that request. To the extent the court overrules the objection or claim of privilege, the responding party must produce the requested material or information within 30 days after the court's ruling or at such time as the court orders. A party need not request a ruling on that party's own objection or assertion of privilege to preserve the objection or privilege.
(c) Use of material or information withheld under claim of privilege. A party may not use-at any hearing or trial-material or information withheld from discovery under a claim of privilege, including a claim sustained by the court, without timely amending or supplementing the party's response to that discovery.
193.5 Amending or Supplementing Responses to Written Discovery.
(a) Duty to amend or supplement. If a party learns that the party's response to written discovery was incomplete or incorrect when made, or, although complete and correct when made, is no longer complete and correct, the party must amend or supplement the response:
(1) to the extent that the written discovery sought the identification of persons with knowledge of relevant facts, trial witnesses, or expert witnesses, and
(2) to the extent that the written discovery sought other information, unless the additional or corrective information has been made known to the other parties in writing, on the record at a deposition, or through other discovery responses.
(b) Time and form of amended or supplemental response. An amended or supplemental response must be made reasonably promptly after the party discovers the necessity for such a response. Except as otherwise provided by these rules, it is presumed that an amended or supplemental response made less than 30 days before trial was not made reasonably promptly. An amended or supplemental response must be in the same form as the initial response and must be verified by the party if the original response was required to be verified by the party, but the failure to comply with this requirement does not make the amended or supplemental response untimely unless the party making the response refuses to correct the defect within a reasonable time after it is pointed out.
193.6 Failing to Timely Respond-Effect on Trial.
(a) Exclusion of evidence and exceptions. A party who fails to make, amend, or supplement a discovery response in a timely manner may not introduce in evidence the material or information that was not timely disclosed, or offer the testimony of a witness (other than a named party) who was not timely identified, unless the court finds that:
(1) there was good cause for the failure to timely make, amend, or supplement the discovery response; or
(2) the failure to timely make, amend, or supplement the discovery response will not unfairly surprise or unfairly prejudice the other parties.
(b) Burden of establishing exception. The burden of establishing good cause or the lack of unfair surprise or unfair prejudice is on the party seeking to introduce the evidence or call the witness. A finding of good cause or of the lack of unfair surprise or unfair prejudice must be supported by the record.
(c) Continuance. Even if the party seeking to introduce the evidence or call the witness fails to carry the burden under paragraph (b), the court may grant a continuance or temporarily postpone the trial to allow a response to be made, amended, or supplemented, and to allow opposing parties to conduct discovery regarding any new information presented by that response.
193.7 Production of Documents Self-Authenticating. A party's production of a document in response to written discovery authenticates the document for use against that party in any pretrial proceeding or at trial unless-within ten days or a longer or shorter time ordered by the court, after the producing party has actual notice that the document will be used-the party objects to the authenticity of the document, or any part of it, staling the specific basis for objection. An objection must be either on the record or in writing and must have a good faith factual and legal basis. An objection made to the authenticity of only part of a document does not affect the authenticity of the remainder. If objection is made, the party attempting to use the document should be given a reasonable opportunity to establish its authenticity.
193.2 Objections
GM. Corp. v. Tanner, 892 S.W.2d 862, 863 (Tex. 1995). "As the party objecting to the request, [P] was required to provide evidence in support of his objection."
193.3 Privileges
Humphreys v. Caldwell, 888 S.W.2d 469,470 (Tex. 1994). "A party who seeks to exclude any matter from discovery on the basis of an exemption or immunity from discovery, must specifically plead the particular exemption or immunity relied on and produce evidence supporting such claim in the form of affidavits or live testimony at a hearing."
In re Monsanto Co., 998 S.W.2d 917, 926 (Tex. App.-Waco 1999, n.p.h.). "The mere listing of a specific privilege in a response or a privilege log does not prove that privilege. The response and log are the vehicles by which the privilege is claimed. Proof of the facts that justify the claim of privilege is necessary."
193.5 Supplementing Discovery
Titus Cty. Hasp. Dist. v. Lucas, 988 S.W.2d 740, 740 (Tex.l998). TRCP 193.5 "requires supplementation of a response to a request for discovery. An interrogatory answer is a response to a request for discovery, but testimony in a deposition is not. A general duty to supplement deposition testimony (as opposed to a narrow duty for certain expert testimony, for example) would impose too great a burden on litigants. We therefore disapprove the court of appeals, holding that deposition testimony must be supplemented."
State Farm Fire & Cas. Co. v. Morua, 979 S.W.2d 616, 619 (Tex.l998). "[Supplemental answers to interrogatories must be verified."
Exxon Corp. v. West Tex. Gathering Co., 868 S.W.2d 299,304 (Tex.l993). "Our rules do not prevent experts from refining calculations and perfecting reports through the time of trial. The testimony of an expert should not be barred because a change in some minor detail of the person's work has not been disclosed a month before trial. The additional supplementation requirement of [TRCP 193.5] does require that opposing parties have sufficient information about an expert's opinion to prepare a rebuttal with their own experts and cross-examination, and that they be promptly and fully advised when further developments have rendered past information incorrect or misleading."
Sharp v. Broadway Nat'1 Bank, 784 S.W.2d 669, 671 (Tex-1990). "Identification of witnesses in response to discovery must be in writing; oral notice is not proper...."
TRCP 194 REQUESTS FOR DISCLOSURE
194.1 Request. A party may obtain disclosure from another party of the information or material listed in Rule 194.2 by serving the other party-no later than 30 days before the end of any applicable discovery period-the following request: "Pursuant to Rule 194,
you are requested to disclose, within 30 days of service of this request, the information or material described in Rule [state rule, e.g., 194.2, or 194.2(a), (c), and (f), or 194.2(d)-(g)]."
194.2 Content. A party may request disclosure of any or all of the following:
(a) the correct names of the parties to the lawsuit;
(b) the name, address, and telephone number of any potential parties;
(c) the legal theories and, in general, the factual bases of the responding party's claims or defenses (the responding party need not marshal all evidence that may be offered at trial);
(d) the amount and any method of calculating economic damages;
(e) the name, address, and telephone number of persons having knowledge of relevant facts, and a brief statement of each identified person's connection with the case;
(f) for any testifying expert:
(1) the expert's name, address, and telephone number;
(2) the subject matter on which the expert will testify;
(3) the general substance of the expert's mental impressions and opinions and a brief summary of the basis for them, or if the expert is not retained by, employed by, or otherwise subject to the control of the responding party, documents reflecting such information;
(4) if the expert is retained by, employed by, or otherwise subject to the control of the responding party:
(A) all documents, tangible things, reports, models, or data compilations that have been provided to, reviewed by, or prepared by or for the expert in anticipation of the expert's testimony; and
(B) the expert's current resume and bibliography;
(g) any indemnity and insuring agreements described in Rule 192.3(f);
(h) any settlement agreements described in Rule 192.3(g);
(i) any witness statements described in Rule 192.3(h);
(j) in a suit alleging physical or mental injury and damages from the occurrence that is the subject of the case, all medical records and bills that are reasonably related to the injuries or damages asserted or, in lieu thereof, an authorization permitting the disclosure of such medical records and bills;
(k) in a suit alleging physical or mental injury and damages from the occurrence that is the subject of the case, all medical records and bills obtained by the responding party by virtue of an authorization furnished by the requesting party.
194.3 Response. The responding party must serve a written response on the requesting party within 30 days after service of the request, except that:
(a) a defendant served with a request before the defendant's answer is due need not respond until 50 days after service of the request, and
(b) a response to a request under Rule 194.2 (f) is governed by Rule 195.
194.4 Production. Copies of documents and other tangible items ordinarily must be served with the response. But if the responsive documents are voluminous, the response must state a reasonable time and place for the production of documents. The responding party must produce the documents at the time and place stated, unless otherwise agreed by the parties or ordered by the court, and must provide the requesting party a reasonable opportunity to inspect them.
194.5 No Objection or Assertion of Work Product. No objection or assertion of work product is permitted to a request under this rule.
194.6 Certain Responses Not Admissible. A response to requests under Rule 194.2(c) and (d) that has been changed by an amended or supplemental response is not admissible and may not be used for impeachment.
Castellanos v. Littlejohn, 945 S.W.2d 236, 239 (Tex.App.-San Antonio 1997, orig. proceeding). "Dr. Perez was retained as a consulting-only expert and was designated as a testifying expert only because of a clerical error. The issue presented ... is whether a party who has inadvertently listed a consulting-only expert as a testifying expert may 'de-designate' him to reflect his proper status. We believe the party can do so, so long as the 'de-designation' does not constitute 'an offensive and unacceptable use of discovery mechanisms' or 'violate [ ] the clear purpose and policy underlying the rules of discovery."'
TRCP 195 DISCOVERY REGARDING TESTIFYING EXPERT WITNESSES
195.1 Permissible Discovery Tools. A party may request another party to designate and disclose information concerning testifying expert witnesses only through a request for disclosure under Rule 194 and through depositions and reports as permitted by this rule.
195.2 Schedule for Designating Experts.
Unless otherwise ordered by the court, a party must designate experts-that is, furnish information requested under Rule 194.2(f)-by the later of the following two dates:
30 days after the request is served, or -
(a) with regard to all experts testifying for a party seeking affirmative relief, 90 days before the end of the discovery period;
(b) with regard to all other experts, 60 days before the end of the discovery period.
195.3 Scheduling Depositions.
(a) Experts for party seeking affirmative relief. A party seeking affirmative relief must make an expert retained by, employed by, or otherwise in the control of the party available for deposition as follows:
(1) If no report furnished. If a report of the expert's factual observations, tests, supporting data, calculations, photographs, and opinions is not produced when the expert is designated, then the party must make the expert available for deposition reasonably promptly after the expert is designated. If the deposition cannot-due to the actions of the tendering party-reasonably be concluded more than 15 days before the deadline for designating other experts, that deadline must be extended for other experts testifying on the same subject.
(2) If report furnished. If a report of the expert's factual observations, tests, supporting data, calculations, photographs, and opinions is produced when the expert is designated, then the party need not make the expert available for deposition until reasonably promptly after all other experts have been designated.
(b) Other experts. A party not seeking affirmative relief must make an expert retained by, employed by, or otherwise in the control of the party available for deposition reasonably promptly after the expert is designated and the experts testifying on the same subject for the party seeking affirmative relief have been deposed.
195.4 Oral Deposition. In addition to disclosure under Rule 194, a party may obtain discovery concerning the subject matter on which the expert is expected to testify, the expert's mental impressions and opinions, the facts known to the expert (regardless of when the factual information was acquired) that relate to or form the basis of the testifying expert's mental impressions and opinions, and other discoverable matters, including documents not produced in disclosure, only by oral deposition of the expert and by a report prepared by the expert under this rule.
195.5 Court-Ordered Reports. If the discoverable factual observations, tests, supporting data, calculations, photographs, or opinions of an expert have not been recorded and reduced to tangible form, the court may order these matters reduced to tangible form and produced in addition to the deposition.
195.6 Amendment and Supplementation. A party's duty to amend and supplement written discovery regarding a testifying expert is governed by Rule 193.5. If an expert witness is retained by, employed by, or otherwise under the control of a party, that party must also amend or supplement any deposition testimony or written report by the expert, but only with regard to the expert's mental impressions or opinions and the basis for them.
195.7 Cost of Expert Witnesses. When a party takes the oral deposition of an expert witness retained by the opposing party, all reasonable fees charged by the expert for time spent in preparing for, giving, reviewing, and correcting the deposition must be paid by the party that retained the expert.
TRCP 196 REQUESTS FOR PRODUCTION and INSPECTION TO PARTIES; REQUESTS & MOTIONS FOR ENTRY UPON PROPERTY
196.1 Request for Production and Inspection to Parties.
(a) Request. A party may serve on another party-no later than 30 days before the end of the discovery period-a request for production or for inspection, to inspect, sample, test, photograph and copy documents or tangible things within the scope of discovery.
(b) Contents of request. The request must specify the items to be produced or inspected, either by individual item or by category, and describe with reasonable particularity each item and category. The request must specify a reasonable time (on or after the date on which the response is due) and place for production. If the requesting party will sample or test the requested items, the means, manner and procedure for testing or sampling must be described with sufficient specificity to inform the producing party of the means, manner, and procedure for testing or sampling.
(c) Requests for production of medical or mental health records regarding nonparties.
(1) Service of request on nonparty. If a party requests another party to produce medical or mental health records regarding a nonparty, the requesting party must serve the nonparty with the request for production under Rule 21a.
(2) Exceptions. A party is not required to serve the request for production on a nonparty whose medical records are sought if:
(A) the nonparty signs a release of the records that is effective as to the requesting party;
(B) the identity of the nonparty whose records are sought will not directly or indirectly be disclosed by production of the records; or
(C) the court, upon a showing of good cause by the party seeking the records, orders that service is not required.
(3) Confidentiality. Nothing in this rule excuses compliance with laws concerning the confidentiality of medical or mental health records.
196.2 Response to Request for Production and Inspection.
(a) Time for response. The responding party must serve a written response on the requesting party within 30 days after service of the request, except that a defendant served with a request before the defendant's answer is due need not respond until 50 days after service of the request.
(b) Content of response. With respect to each item or category of items, the responding party must state objections and assert privileges as required by these rules, and state, as appropriate, that:
(1) production, inspection, or other requested action will be permitted as requested;
(2) the requested items are being served on the requesting party with the response;
(3) production, inspection, or other requested action will take place at a specified time and place, if the responding party is objecting to the time and place of production; or
(4) no items have been identified-after a diligent search-that are responsive to the request.
196.3 Production.
(a) Time and place of production. Subject to any objections stated in the response, the responding party must produce the requested documents or tangible things within the person's possession, custody or control at either the time and place requested or the time and place stated in the response, unless otherwise agreed by the parties or ordered by the court, and must provide the requesting party a reasonable opportunity to inspect them.
(b) Copies. The responding party may produce copies in lieu of originals unless a question is raised as to the authenticity of the original or in the circumstances it would be unfair to produce copies in lieu of originals. If originals are produced, the responding party is entitled to retain the originals while the requesting party inspects and copies them.
(c) Organization. The responding party must either produce documents and tangible things as they are kept in the usual course of business or organize and label them to correspond with the categories in the request.
196.4 Electronic or Magnetic Data. To obtain discovery of data or information that exists in electronic or magnetic form, the requesting party must specifically request production of electronic or magnetic data and specify the form in which the requesting party wants it produced. The responding party must produce the electronic or magnetic data that is responsive to the request and is reasonably available to the responding party in its ordinary course of business. If the responding party cannot-through reasonable efforts-retrieve the data or information requested or produce it in the form requested, the responding party must state an objection complying with these rules. If the court orders the responding party to comply with the request, the court must also order that the requesting party pay the reasonable expenses of any extraordinary steps required to retrieve and produce the information.
196.5 Destruction or Alteration. Testing, sampling or examination of an item may not destroy or materially alter an item unless previously authorized by the court.
195.6 Expenses of Production. Unless otherwise ordered by the court for good cause, the expense of producing items will be borne by the responding party and the expense of inspecting, sampling, testing, photographing, and copying items produced will be borne by the requesting party.
196.7 Request or Motion for Entry Upon Property.
(a) Request or motion. A party may gain entry on designated land or other property to inspect, measure, survey, photograph, test, or sample the property or any designated object or operation thereon by serving-no later than 30 days before the end of any applicable discovery period-
(1) a request on all parties if the land or property belongs to a party, or
(2) a motion and notice of hearing on all parties and the nonparty if the land or property belongs to a nonparty. If the identity or address of the nonparty is unknown and cannot be obtained through reasonable diligence, the court must permit service by means other than those specified in Rule 21 a that are reasonably calculated to give the nonparty notice of the motion and hearing.
(b) Time, place, and other conditions. The request for entry upon a party's property, or the order for entry upon a nonparty's property, must state the time, place, manner, conditions, and scope of the inspection, and must specifically describe any desired means, manner, and procedure for testing or sampling, and the person or persons by whom the inspection, testing, or sampling is to be made.
(c) Response to request for entry.
(1) Time to respond. The responding party must serve a written response on the requesting party within 30 days after service of the request, except that a defendant served with a request before the defendant's answer is due need not respond until 50 days after service of the request.
(2) Content of response. The responding party must state objections and assert privileges as required by these rules, and state, as appropriate, that:
(A) entry or other requested action will be permitted as requested;
(B) entry or other requested action will take place at a specified time and place, if the responding party is objecting to the time and place of production; or
(C) entry or other requested action cannot be permitted for reasons stated in the response.
(d) Requirements for order for entry on nonparty's property. An order for entry on a nonparty's property may issue only for good cause shown and only if the land, property, or object thereon as to which discovery is sought is relevant to the subject matter of the action.
G.M. Corp. v. Gayle, 951 S.W.2d 469,475-76 (Tex. 1997). Plaintiffs "rely on [TRCP 196.7(a)] to support their claim to attend General Motors' [crash] testing. ... The rule allowing entry upon land does not render discoverable items which are privileged under [TRCP 193.3]. For example, [TRCP 196.7(a)] obviously does not authorize a party to enter into opposing counsel's office to inspect privileged work product documents. Similarly, it does not authorize the [Ps] to enter into testing facilities under General Motors' control to view privileged tests."
Dillard Dept. Stores, Inc. v. Hall, 909 S.W.2d 491, 492 (Tex.l995). "As presently postured, this is a simple false arrest case. Parker admits that he wants the document production to explore whether he can in good faith allege racial discrimination. This is the very kind of 'fishing expedition' that is not allowable under [TRCP 196.1 ]...."
Schein v. American Rest. Group, Inc., 852 S.W.2d 496,497 (Tex.l993). "If a party does not comply with a discovery request pursuant to [TRCP 196 & 197], the party may be prohibited from introducing a requested document or evidence at trial."
Sears, Roebuck & Co. v. Ramirez, 824 S.W.2d 558, 559 (Tex.l992). The trial court ordered Sears to produce its annual reports and its federal income tax statements. The Supreme Court held there was "no justification for requiring Sears to produce the same information in different form."
TRCP 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 supple mented is not admissible and may not be used for impeachment.
Smith v. Southwest Feed Yards, 835 S.W.2d 89,9: (Tex.l992). " [W] here the answer to another query in a single, short set of interrogatories plainly indicated that the individual responding had knowledge of relevant facts, the trial court abused its discretion by failing to find 'good cause' to permit that parly's testimony."
Ticor Title Ins. Co. v. Lacy, 803 S.W.2d 265, 261 (Tex.l991). "A party must be able to rely on the interrogatories and answers of other parties in the same suit. Otherwise, a multi-party case would require redundant interrogatories with identical questions and answers." (Internal quotations omitted).
TRCP 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.
Wat-Mart Stores, Inc. v. Deggs, 968 S.W.2d 354, 356 (Tex.l998). "'Good cause' is established when the failure to respond is accidental or the result of a mistake, rather than intentional or the result of conscious indifference."
Sanders v. Harder, 227 S.W.2d 206,208 (Tex.l950). "The primary purpose of [now TRCP 198) is to simplify trials by eliminating matters about which there is no real controversy, but which may be difficult or expensive to prove. It was never intended to be used as a demand upon a plaintiff or defendant to admit that he had no cause of action or ground of defense."
Final v. Carnevale, 964 S.W.2d 311, 313-14 (Tex. App.-Corpus Christi 1998, no pet). "Because the language of [now TRCP 198] provides no basis for requiring verification of answers to requests for admission, we hold that the requested matters could not be deemed admitted and summary judgment could not be granted on the ground that the answers were not verified."
TRCP 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 maybe 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) Nonstenographic 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 nonstenographic 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 Deposition.
(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 testily. Each individual designated must testily 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)(l);
(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, nonresponsive." 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, nonargumentative, nonsuggestive 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.
199.5 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.
Wal-Mart Stores, Inc. v. Street, 754 S.W.2d 153, 155 (Tex.l988). "The trial court abused its discretion when it ordered Sam Walton, the former president of the defendant corporation, to travel to Ft. Worth from Arkansas to be deposed. [TRCP 199] required the deposition to be taken in the Arkansas county where Walton lived."
Lindsey v. O'Neill, 689 S.W.2d 400,402 (Tex.l985). TRCP 199.2(b)(l) "requires that a deposition notice of a corporation describe with reasonable particularity the matters on which examination is requested."
TRCP 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 cross-questions 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 recross questions on all other parties. Objections to recross questions must be served within five days after the earlier of when recross 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.
St. Luke's Episcopal Hosp. v. Garcia, 928 S.W.2d 307, 310 (Tex.App- Houston [14th Dist.] 1996, orig. proceeding). "Because relator has no objection to the form ofTMC's written questions, relator claims the provision in [TRCP 200] regarding timeliness of objections is inapplicable. We agree. In its objections to the deposition notice and subpoena duces tecum, relator's primary objections are substantive objections relating to privilege. We hold that the ten-day limitation in [TRCP 200] is inapplicable to substantive objections."
Fibreboard Corp. v. Pool, 813 S.W.2d 658, 677 (Tex.App.-Texarkana 1991, writ denied). " [T]he trial court limited appellant's examination of [two witnesses] to 50 cross-questions. [ If ] Until the appellants exhaust the number of questions allotted to them ...,they cannot be heard to complain that they were denied the right to ask additional questions."
TRCP 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 maybe 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, videoconference, 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.
Clone Component Distrib., Inc. v. State, 819 S.W.2d 593, 598 (Tex.App- Dallas 1991, no writ). Regarding a telephone deposition in another state: "we hold that the requirement of [TRCP 201.1(b)] that the deposition be taken 'before' a person authorized to take oaths was satisfied by the court reporter's being in the vocal and aural presence of the deponent through the use of the telephone."
Latham v. Thornton, 806 S.W.2d 347,349-50 (Tex. App.-Fort Worth 1991, orig. proceeding). "(A]s regards the person whose deposition is sought, if that person is not a party, the order may only be sought in the court where the deposition is to be taken. In this particular case under the authority of (TRCP] 201, that place is the county of the witness's residence...."
TRCP 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 2 la-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(0(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 nonparties 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.
U.S. v. Marks, 949 S.W.2d 320, 322 (Tex.l997) TRCP 202 "authorizes a court to order the taking of a deposition to perpetuate testimony in anticipation of litigation.
Office Employees Infl Un. v. Southwestern Drug Corp., 391 S.W.2d 404,406 (Tex.l965). "[A] proceeding to perpetuate testimony is not of itself an independent suit, but is in aid of and incident to an anticipated suit."
Valley Baptist Med. Ctr. v. Gonzalez, __ S.W.3d __, __ (Tex.App- Corpus Christi 1999, n.p.h.). TRCP 202 "allows a person to petition the court for an order authorizing the taking of an oral or written deposition to either: (1) perpetuate testimony for use in an anticipated suit, or (2) to investigate a potential claim or suit. The proceeding is not, in itself, a separate lawsuit, but is incident to and in anticipation of a suit. It is an ancillary proceeding."
TRCP 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 nonstenographic 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 nonstenographic recording of an oral deposition a certificate duly sworn by the officer staling:
(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 nonstenographic 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 nonstenographic 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 nonstenographic 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 nonstenographic 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 nonstenographic 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 nonstenographic recording, the party must file and serve a motion to suppress before trial commences to preserve the objections.
203.6 Use.
(a) Nonstenographic recording; transcription.
A nonstenographic 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 nonstenographic 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 nonstenographic 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)(l) 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.
Jones v. Colley, 820 S.W.2d 863, 866 (Tex.App- Texarkana 1991, writ denied). "No rule requires that a deposition be read into the record or played before the jury in chronological order. A party, as a matter of trial strategy, is entitled to present his evidence in the order he believes constitutes the most effective presentation of his case, provided that it does not convey a distinctly false impression."
Klorer v. Block, 717 S.W.2d 754, 759 (Tex.App- San Antonio 1986, writ refd n.r.e.). "The statement in [TRCP 203.5] that a deposition shall have been Filed at least one entire day before the day of trial is a condition precedent to the Filing of a written motion to suppress. This rule does not require that all depositions must be Filed at least one entire day before the day of trial."
TRCP 204 PHYSICAL and MENTAL EXAMINATIONS
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.
204.4 Definition. 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.
Coates v. Whittington, 758 S.W.2d 749, 751 (Tex. 1988). TRCP 204, "by its express language, places an affirmative burden on the movant to meet a two pronged test: (1) the movant must show that the party's mental condition is 'in controversy'; and (2) the movant must demonstrate that there is 'good cause' for a compulsory mental examination. In the absence of an affirmative showing of both prongs of the test, a trial court may not order an examination pursuant to [TRCP 204.1]."
Laab v. Millard, 925 S.W.2d 363, 365 (Tex.App- Houston [IstDist.] 1996, orig. proceeding). "If (petitioner] plans to call these experts as witnesses, [respondent] should be given the opportunity to have a mental health expert, other than those employed by [petitioner] , examine [her] to evaluate her mental competency during the years in question. ... [Other- wise, [respondent] will be at a severe disadvantage in the 'battle of experts.'"
TRCP 205 DISCOVERY FROM NONPARTIES
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-a 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 nonparties. 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 partly 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.
Automatic Drilling Macks., Inc. v. Miller, 515 S.W.2d 256, 259 (Tex.l974). "Under the general provisions of [TRCP 205], a subpoena may be issued in a proper case to require a witness to produce, at the time and place of giving his deposition, documents and other tangible things which constitute or contain evidence relating to any of the matters.... The subpoena is, however, subject to the provisions of [TRCP 176 & 192]."
TRCP 206 209 REPEALED
TRCP 210 214 REPEALED
TRCP 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)(l) or 200.1 (b); or
(2) if a party, or other deponent, or a person designated to testily 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)(l) 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 or to 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.
Hamillv. Level, 917 S.W.2d 15, 16 (Tex.l996). "At issue in this case is whether the trial court properly dismissed the plaintiffs claims with prejudice for failing to comply with the defendant's discovery requests. ... Because the imposition of a 'death penalty' sanction in this case is excessive, we reverse the judgment of the court of appeals and remand this case to the trial court for further proceedings consistent with this opinion. [If] Here, the sanction of dismissal with prejudice conflicts with TransAmerican and its progeny because the sanction imposed in this case is more severe than necessary to satisfy its legitimate purpose and the sanctioned conduct does not justify the presumption that Hamill's claims are meritless."
Occidental Chem. Corp. v. Banales, 907 S.W.2d 488,490 (Tex.l995). "The sanction imposed for discovery abuse should be no more severe than necessary to satisfy the legitimate purposes of the discovery process offended. ... The work product privilege is essential to the attorney-client relationship. ... Requiring the production of the attorney's notes from interviews of witnesses is a severe sanction and should receive an appropriately strict review. Piercing the work product privilege, like the 'death penalty' sanction, should apply only when lesser sanctions are inadequate to correct the discovery abuse that has occurred, i.e., when it is the only appropriate sanction. ... Here the record does not reflect why lesser traditional sanctions might not cure the discovery abuse."
Global Sen)., Inc. v. Bianchi, 901 S.W.2d 934,938 (Tex.l995). "We recognize that it is often difficult to prove that a party has withheld documents from discovery. Direct evidence of such conduct is seldom available, and it may be necessary to rely entirely upon circumstantial evidence. But an imposition of sanctions cannot be based merely on a party's bald assertions. There must be some evidence to show an abuse of discovery before sanctions can be imposed. [The district] court ordered GSI to keep trying to produce all the documents requested, and prohibited GSI from conducting any discovery of its own until it complied. ... Thus, the effect of the sanction is to prohibit GSI from conducting any discovery."
Department of Pub. Safety Officers Ass 'n v. Denton, 897 S.W.2d 757,763 (Tex.l995). "A trial court has limited authority to dismiss a cause of action on its own initiative. ... [ S ] auctions imposed by a trial court must be just, there must be a direct relationship between the offensive conduct and the sanction imposed, and the sanction must not be excessive."
Remington Arms Co. v. Caldwell, 850 S.W.2d 167, 170 (Tex.l993). "[l]f pretrial discovery abuse is not revealed until after the trial has begun, or even after trial, a party cannot be said to have waived a claim for sanctions."
Chrysler Corp. v. Blackmon, 841 S.W.2d 844,849 (Tex.l992). "Two factors mark the bounds of the trial court's discretion in order for sanctions to be just: First, a direct relationship between the offensive conduct and the sanction imposed must exist; and second, the sanction imposed must not be excessive. [If] A permissible sanction should, therefore, be no more severe than required to satisfy legitimate purposes. This means that a court must consider relatively less stringent sanctions first to determine whether lesser sanctions will fully promote compliance, deterrence, and discourage further abuse."
Smith v. Southwest Feed Yards, 835 S.W.2d 89,91 (Tex.l992). " [W] here the answer to another query in a single, short set of interrogatories plainly indicated that the individual responding had knowledge of relevant facts, the trial court abused its discretion by failing to find 'good cause' to permit that party's testimony."
Walker v. Packer, 827 S.W.2d 833,843 (Tex.l992). A party does not have an adequate remedy to appeal a discovery order: (1) "[W] hen the appellate court would not be able to cure the trial court's discovery error...." (2) "[W] here the party's ability to present a viable claim or defense at trial is vitiated or severely compromised by the trial court's discovery error...." (3) "[W]here the trial court disallows discovery and the missing discovery cannot be made part of the appellate record, or the trial court... refuses to make it part of the record, and the reviewing court is unable to evaluate the effect of the trial court's error...."
TransAmerican Nat. Gas Corp. v. Powell, 811 S.W.2d 913,917 (Tex.l991). "The punishment [for discovery abuse] should fit the crime. At 918: Discovery sanctions cannot be used to adjudicate the merits of a party's claims or defenses unless a party's hindrance of
the discovery process justifies a presumption that its claims or defenses lack merit."
TRCP 215a 215c REPEALED
Section 10 The Jury in Court
TRCP 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.
G.M. Corp. P. Gayle, 951 S.W.2d 469, 476 (Tex. 1997). "Even where a party does not timely pay the jury fee, courts have held that a trial court should accord the right to jury trial if it can be done without interfering with the court's docket, delaying the trial, or injuring the opposing party. At 477: [GM] established that a 30-day continuance to perfect [GM's] jury trial demand would cause [Ps] any injury or delay. [T]he trial court's seriatim trial schedule seems only a sham to hold [GM] to its mistake in not paying the jury fee without penalizing the other side. Under these particular and unusual circumstances, we hold that the trial court abused its discretion by not granting a continuance to allow [GM's] jury request and fee to become timely."
Mercedes-Benz Credit Corp. v. Rhyne, 925 S.W.2d 664,666 (Tex.l996). "Only when a party demands a jury and pays the fee can the opposing party rely on those actions. ... In such a case, the trial court may not remove the case from the jury docket over the objections of the opposing party."
Ricardo N" Inc. v. Tarcios deArgaeta, 907 S.W.2d 423, 429 (Tex.l995). "Assuming Ricardo N.'s request for a jury in advance of the First trial setting was not timely made, that request had certainly become timely when the case was remanded from federal court 4 years later."
Halsell v. Deffoyos, 810 S.W.2d 371, 371 (Tex. 1991). "A [jury] request in advance of the 30-day deadline [ofTRCP 216] is presumed to have been made a reasonable time before trial."
Bell Helicopter Textron, Inc. v. Abbott, 863 S.W.2d 139, 140 (Tex.App.-Texarkana 1993, writ denied). "The... court must give at least 45 days' notice of a First setting for trial, but may reset the case to a later date on any reasonable notice. [II] As the First trial setting here gave only 24 days' notice, it did not comply with [TRCP] 245. At 141: It was not harmless ... because it made it impossible for Bell, after receiving notice of the setting, to comply with the time limit for paying the jury fee."
TRCP 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 cannot, 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.
TRCP 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.
Higginbotham v. Collateral Protection, Inc., 859 S.W.2d 487, 488 n.3 (Tex.App- Houston [1st Dist.] 1993, writ denied). "The clerk is required to enter a notation on the court's docket sheet that the jury fee was paid."
TRCP 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.
TRCP 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 July.
Mercedes-Benz Credit Corp. v. Rhyne, 925 S.W.2d 664,666 (Tex.l996). "Only when a party demands a jury and pays the fee can the opposing party rely on those actions."
Green v. Grace Mfg. Co., 422 S.W.2d 723, 726 (Tex.l968). "We hold that a party, who does not timely demand a jury and pay the fee must object to the withdrawal of the case from the jury docket under [TRCP] 220."
TRCP 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 willfully 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.
State ex rel Hightower v. Smith, 671 S.W.2d 32,36 (Tex.l984). "The courts of Smith County operate under the interchangeable jury system of [Gov't Code Section 62.016]. Objections to the jury panel therefore must be presented to the judge charged with organizing and impaneling the jurors for the week. [The defendant's] motion to the trial judge after the panels were organized was not timely."
Mann v. Ramirez, 905 S.W.2d 275,280 (Tex-App- San Antonio 1995, writ denied). "It is undisputed that irregularities in the granting and documentation of exemptions and excuses occurred. At 283: We conclude that the trial court abused its discretion in denying a mistrial and erred in failing to grant a new trial, in light of the totality of the record and the evidence adduced at the post trial hearings."
TRCP 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.
Martinez v. City of Austin, 852 S.W.2d 71,73 (Tex. App.-Austin 1993, writ denied). A challenge to the array "alleges a defect in the juror selection and summons procedure or a violation of the jury-wheel statute. ... If the movant is successful, the entire array is dismissed and a new array summoned.... The challenge [to the array] must be presented in a written motion supported by affidavit to the particular judge in charge of the local jury system."
TRCP 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.
Rivas v. Liberty Mat. Ins. Co., 480 S.W.2d 610,612 (Tex.l972). "The court of civil appeals recognized the listing and reshuffle provisions of [TRCP] 223 are designed to insure a random selection of jurors. While the method used here did not conform to the method prescribed by the rule, it did insure a degree of randomness in the listing of the jurors."
TRCP 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.
Southwestern Pub. Serv. Co. v. Morris, 380 S.W.2d 648, 649 (Tex.App.-Amarillo 1964, no writ). "[E]rror was committed by the court in refusing condemnor's request that the jury panel be drawn before the selection of the jury." Such error may be harmless.
TRCP 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.
TRCP 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."
Barren v. State, 378 S.W.2d 144, 147 (Tex.App- San Antonio 1964, no writ). "[F]ailure to swear the jury panel prior to the voir dire examination as required by [TRCP] 226 ... was waived by appellant's failure to timely complain of same."
TRCP 226a ADMONITORY INSTRUCTIONS TO JURY PANEL and JURY
The court shall give such admonitory instructions to the jury panel and to the jury as may be prescribed by the Supreme Court in an order or orders entered for that purpose.
APPROVED INSTRUCTIONS
Pursuant to the provisions of Rule 226a, Texas Rules of Civil Procedure, it is ordered [July 20, 1966] by the Supreme Court of Texas,
effective January 1, 1967; January 1, 1971; February 1, 1973; Decembers, 1983, effective April 1, 1984;
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 to 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 re- cesses 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 11 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 ofany 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.
That the following written instructions, with such modifications as the circumstances of the particular case may require, shall be given by the court to the jury as part of the charge:
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. You may render your verdict upon the vote often or more members of the jury. The same ten or more of you must agree upon all of the answers made and to the entire verdict. You will not, therefore, enter into an agreement to be bound by a majority or any other vote of less than ten jurors, If the verdict and all of the answers therein are reached by unanimous agreement, the presiding juror shall sign the verdict for the entire jury. if any juror disagrees as to any answer made by the verdict, those jurors who agree to all findings shall each sign the verdict.
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.)
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
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
(To be signed by those rendering the verdict if not unanimous.)
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.
Pharo v. Chambers Cty., 922 S.W.2d 945,949 (Tex. 1996). "[N]ot every employee of a county is automatically 'interested' in a case in which the county is a party. At 949: Collier, however, was a member of the Sheriffs Department, the division of county government whose conduct was being scrutinized at trial. ... D]etermining whether Collier was connected with or interested in the case within the meaning of Rule 226a is a factually intensive inquiry, committed to the sound discretion of the trial court."
Woods v. Crane Carrier Co., 693 S.W.2d 377, 379 (Tex.l985). "(W]hen terms requiring definitions are used more than once in a charge, it is preferable that the definition or instruction occur immediately after the general instructions required by [TRCP] 226a...."
Phippen v. Deere & Co., 965 S.W.2d 713,718 (Tex. App- Texarkana 1998, no pet.). TRCP 226a "provides in relevant part that if a verdict is unanimous, it shall be signed by the presiding juror, and if not unanimous, then those jurors who agree with all of the Findings shall sign the verdict. At 719: Because the appellants... failed to raise their objections to the exemplary damages verdict at trial before the jury was discharged, so that the trial court could have instructed the jury to enter a corrected verdict, we conclude that appellants waived their objection...."
TRCP 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.
Lopez v. Southern P.T. Co., 847 S.W.2d 330, 333 (Tex.App.-El Paso 1993, no writ). "A party exercises its peremptory challenges by delivering its list of peremptory challenges to the court."
TRCP 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.
Compton v. Henrie, 364 S.W.2d 179, 182 (Tex. 1963). "[T]he statutory disqualification of bias or prejudice extends not only to the litigant personally, but to the subject matter of the litigation as well."
TRCP 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.
Hallett v. Houston NWMed. Ctr., 689 S.W.2d 888, 890 (Tex.l985). To preserve error in the denial of challenges for cause, "[i]t was incumbent upon [P], prior to exercising her peremptory challenges, to advise the trial court of two things: (1) that she would exhaust her peremptory challenges; and, (2) that after exercising her peremptory challenges, specific objectionable jurors would remain on the jury list."
Lucas v. Titus Cty. Hasp. Dist., 964 S.W.2d 144, 157-58 (Tex.App- Texarkana 1998), pet. denied, 988 S.W.2d 740 (Tex.l998). "[A] trial court's refusal to excuse an unqualified juror does not necessarily constitute harmful error. Harm occurs only if the party uses all of their peremptory challenges and is thus prevented from striking other objectionable jurors because he has no additional peremptory challenges. Additionally, the complaining party must inform the court that objectionable jurors will be chosen. Failure to notify the trial court of these two facts constitutes a waiver of the right to complain of the trial court's refusal to discharge a juror challenged for cause."
TRCP 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.
Palmer Well Sens., Inc. v. Mack Trucks, Inc., 776 S.W.2d 575, 576 (Tex.l989). Gov't Code Section 62.102 "disqualifies a person to serve as a petit juror if he is 'under indictment or other legal accusation of misdemeanor or felony theft, or any other felony.'"
TRCP 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.
Williams v. State, 631 S.W.2d 955,957 (Tex App.-- Austin 1982, no writ). TRCP 231 "authorizes the calling of additional individuals to supplement a jury panel rendered insufficient (by disqualifications or peremptory strikes) to supply a jury of twelve."
TRCP 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.
Goode v. Shoukfeh, 943 S.W.2d 441, 4546 (Tex. 1997). "At the first step of the {Batson} process, the opponent of the peremptory challenge must establish a prima facie case of racial discrimination. (If] During the second step of the process, the burden shifts to the
party who has exercised the strike to come forward with a race-neutral explanation. ... The issue ... at this juncture is the facial validity of the explanation. ... It is not until the third step that the persuasiveness of the justification for the challenge becomes relevant. At the third step of the process, the trial court must determine if the party challenging the strike has proven purposeful racial discrimination, and the trial court may believe or not believe the explanation offered by the party who exercised the peremptory challenge. It is at this stage that implausible justifications for striking potential jurors 'may (and probably will) be found [by the trial court] to be pretexts for purposeful discrimination."'
Powers v. Palacios, 813 S.W.2d 489, 491 (Tex. 1991). "We hold that equal protection is denied when race is a factor in counsel's exercise of a peremptory challenge to a prospective juror."
TRCP 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 issued 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.
Garcia v. Central Power & Light Co., 704 S.W.2d 734, 736 (Tex.l986). "The existence of antagonism [between litigants on the same side of a lawsuit] is a question of law. If no antagonism exists, each side must receive the same number of strikes. At 737: [l]n determining whether antagonism exists, the trial court must consider the pleadings, information disclosed by pretrial discovery, information and representations made during voir dire of the jury panel, and any other information brought to the attention of the trial court before the exercise of the strikes by the parties."
TRCP 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.
Lopez v. Southern P.T. Co., 847 S.W.2d 330, 333 (Tex.App.-El Paso 1993, no writ). To preserve error when the court refuses to strike a panelist for cause, the party must name the objectionable panelist before giving its peremptory strikes to the clerk..
TRCP 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.
Thomas v. City of O'Donnell, 811 S.W.2d 757,759 (Tex.App.-Amarillo, 1991, no writ). "Under the mandatory provisions of [TRCP 235], the onus is on the court to direct that additional prospective jurors be drawn or summoned. The trial court erred in overruling Thomas's motion to call additional jurors in accordance with Rule 235."
TRCP 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."
Traders & Gen. Ins. Co. v. Diebel, 188 S.W.2d 411, 414 (Tex.App.-Dallas 1945, writ refd). "Jurors are sworn to render a verdict according to submitted evidence...."
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