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Pre-Trial Procedure
South Texas College of Law Houston
Carlson, Elaine A.

Texas Trial and Appellate — Elaine Carlson — Spring 2004


TRAP 33: To perfect appeal, you must show [1] error [2] preservation and [3] harm.
TRAP 44.1: Reversible Error is [1] probably caused rendition of an improper judgment or [2] probably prevented the proper presentation of the case to the ct of appeal.
To go to the jury you must have PLEADINGS + SOME EVIDENCE = JURY


Setting the case for trial: 245 allows setting by motion of either party, court on its own motion, or by agreement. It is the L’s job to set the trial on the docket and Π’s choice as to when. This is done at a docket call; usually L must “appear” and announce ready.

Parties must be afforded 45 days notice. Lack of notice is due process violation and the ct abuses its discretion if it does not grant a motion for continuance due to faulty notice—per se grounds for reversal. Judgment will be set aside. You have a right to a new trial.

i. Waived if L appears and announces “ready.” If you announce ready you better be; otherwise you can announce conditionally ready or move for continuance. Also waived by agreement.
1. Local rules cannot impose different time limits, but they can dictate processes for setting. For example, many judges require actual appearance to encourage settlement.
a. In Harris Co. you set for a particular judge, but in Bexar and Travis the docket is centralized, meaning you get whoever is available.
ii. Preferential setting is appropriate w/ physical or economic injury, constitutional rights, or public welfare issues—temporary injunctions, election contests, family protective orders, workers comp, FELA and Jones Act.
1. You are set for a 2 week period, you get a number.
iii. TXSC timelines for dist cts to try cases (starting from the date of appearance): 18 months for civil jury, 12 for civil non-jury, 6 for contested family law, 3 for uncontested family law.

Dismissal for Want of Prosecution 165a: You get a DWOP for [1] failure to comply w/ ct timelines [2] failure to appear [3] ct determines you are not diligently prosecuting your case—inherent authority. If the ct is acting under its inherent power, the ct must give you notice that your case will be DWOP b/f it can DWOP. DWOP is generally on a Π.

DWOP is w/o prejudice, meaning you can have the case reset for trial, but the SOL does not toll. To reinstate, you must [1] re-file verified motion in 30 days [2] show accident, mistake or other reasonable explanation that DWOP was not the result of conscious indifference. You have to put on evidence at a hearing. If ct finds you meet the test, it is abuse of discretion to not reinstate the case.

i. The ct only has plenary power to reinstate for 30 days, but if you file correctly plenary power is extended. But if the motion is not ruled on, it is overruled by operation of law after 75 days.
1. If you realize you are not going to be ready for trial, show up and explain it—announce “conditionally ready” or move for continuance. You may get sanctioned but you won’t get DWOP.
2. Rule 8 requires notice to attorneys of record. But cts are split as to whether local rules can impute notice.

Continuance 251–254: You must file a sworn motion setting out grounds for continuance (252: want of testimony, 253: absence of counsel, 254: legislators). Parties must have 3 days notice of hearing.

Standard of review for continuance ruling is abuse of discretion. If you do not comply with formal requirements, it is presumed that the TC acted within its discretion.

i. You cannot show up and announce ready and then seek delay. Motion for continuance should be urged at docket call. You may only ask for continuance after announcing unconditionally ready if you can show unforeseeable event or emergency.

Want of Testimony 252: You must file a motion supported by affidavit stating that [1] testimony is material [2] cannot be acquired thru other source (only if this is your 2nd request for continuance) [3] statement of diligence in trying to obtain witness [4] what the testimony will include [5] why you can’t get the witness [6] name/address of witness [7] that the continuance is “not being sought merely for delay but that justice may be done.” If you show the elements, it is abuse of discretion for TC not to grant continuance.

i. To show due diligence for a witness outside the subpoena power of the ct (150 miles) you better have taken a deposition.
ii. Pay the $10 subpoena fee if in range.
1. If your motion does not comply w/ formalities, ask to amend right there.
a. If you have absence of a party, you have to motion under 252, but that will be difficult, so outline client responsibilities in retainer.

Absence of Counsel 253: It is within the discretion of the ct whether to grant continuance if you show good cause. Send another L and get it on record.

i. When TC allows voluntary w/d, then it is an abuse of discretion to deny continuance and dismiss the case w/o allowing reasonable time for movant to get new counsel.

Legislative Continuance 254: Mandatory continuance for 30 days b/f, during, or 30 days after a legislative session when party or L is legislator, except when it will produce irreparable harm or when legislator was employed within 10 days of trial.

Obtaining a Trial by Jury: TX has broad constitutional right to trial by jury if you have a fact issue. You must have a “cause.” But no right to jury in civil contempt, election contests, habeas corpus, removal of sheriff, appeals of administrative proceedings, or venue rulings.

To invoke your right to a jury when you have a cause, you must [1] pay fee [2] demand a jury trial b/f appearance (original petition for Π, answer for Δ.
216 creates a rebuttable presumption that your demand for a jury trial was proper if you demand a jury 30 days b/f trial. It is reversible error to deny properl

mention inadmissible evidence [2] comment on personal lives of parties or attorneys [3] attempt to foster sympathy or prejudice [4] attempt to commit the jury to a particular result.
1. If you are prevented from asking questions, to preserve, you must object and make sure the subject matter of your proposed questions is clear in the record.

Challenges for bias (inclination to one side) and prejudice (prejudgment):

Jurors who answer questions in a shady manner can be rehabilitated but a juror who admits bias is disqualified as a matter of law and TC has no discretion.

i. To preserve when a juror is left on the panel, you must show harm in that an objectionable juror was left on the panel.
1. If you will appeal based on the fact that you were forced to use a peremptory strike b/c the TC refused to strike for cause, you must object b/f you exercise your peremptory strike. So while it is harm to have to seat an objectionable juror b/c you are out of strikes, but you must inform the TC of the error and have the ct reporter record it.
a. If the other side strikes the objectionable juror for you, harm is eliminated.
i. A relaxed standard of review is used. You must show a “materially unfair trial” by showing that it was “hotly contested” with “sharply conflicting evidence.”

Constitutional Limitations on Peremptory Strikes: Jurors have an equal protection right to serve and there is state action in the ct conducting the case, so you cannot exclude a juror when the sole reason is race/gender. (In TX race can be a factor, just not the motivating factor.) Religion is not a protected class for purposes of equal protection.

Once a Batson-style challenge is timely raised (b/f panel is sworn in), the burden is with the striking party to show a race-neutral, credible explanation. Then the complainant must prove that allegations were in fact true.

i. Use juror card, strike list, record, and voir dire notes of opposing counsel if they rely on them for defense to establish a record.
1. Remedy is for the ct to either allow the juror to serve or start voir dire over.
A. Quick Summary:
a. Empanelling the Jury: [1] rise and swear [2] instructions [3] once empanelled no removal except for incapacity
b. Opening Statements 265: party w/ burden begins and continues for a reasonable time
Instituting the Rule: witnesses mus