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

TRIAL & APPELATE PROCEDURE
-0UTLINE-
Prof Elaine Carlson
Fall 1997
Chapter 1 -Pretrial Preparation and Motion Practice
[A] Setting the Case for Trial iaw Local Rules
[I] Trial Settings ,
[a] Methods for Setting Trial

Scheduling Trial- getting a case set for trial is a matter of regional local rules
(not set by Tx statewide rules)
TRCP 3a -allows use of local rules
-judges guard their calendars just like us (individual docket rules)
(always get a copy of local rules!)
-10 yrs. ago –S.Ct. required local rules be in writing and approved by S.Ct. –they’re all
on file wIS.Ct. in Austin.
-background ck your judges -what kind of judge is this? hands on? sanction a lot?
(this is important,– it’s hard to change it once you’re there w/that judge)
Large counties (e.g. Harris, Dallas) -cases are randomly assigned to a ct. that will hear all
motions on that case –what kind of docket in that ct? (2 wk docket, 3 wk
docket?)
centralized docket -(e.g. San Antonio) -lottery as to who’s avail. to hear ea. motion
Galveston County -civil cases are set for trial when a party files a written request for a
setting w/theassignment clerk; (request must be for a week certain…see
Galveston County Local Rules 3.4.4,3.4.5,3.4.6;)
-*ea. county has a JP & a constitutional county judge -admin. bus.

transfer their dockets to
the county ct. @ law
( created by legis. as needed)
[b] Consequences of Failure to Set Case for Trial
&
[c] Notice of Setting for Trial
-parties must be given at least 45 davs notice of the 1st trial setting in a case (TRCP 245)

-if you drag your feet in setting for trial, ct. will dismiss for want of prosecution (DWOP)
TRCP 165a
-failure to give notice of a trial setting as required by the TRCP’s is cause for setting aside
a judgment against the non-notif ied and non-appearing party and for the granting of a new
trial; (TRCP 245, 246, 306a)
-the clerk of the ct. must give written notice of a trial setting to a nonresident atty on
written request; TRCP 246
p.10. note 1– time standards -appearance date (time when D’s supposed to answer) w/i
18 months civ. jury cases; w/i 12 months for non-jury trial
note -don’t have to have a case tried by then just requested a trial date by then
-notice of trial setting is a matter of due process
-if you’re on a 1 month docket, the question is, “where am I on the docket?”
-& does that mean you will be heard that month, or you’ll be kicked over into
next month? (what kind of judge?)
[ d] Preferential Settings -the setting of a case at an earlier or dif f. time
than would occur if standard setting procedures were followed.
Statutorily required preference:
(1) temporary injunctions
(2) certain listed crim. actions
(3) elections contests and suits
(4) orders for family protection under the Tx Family Code
(5) appeals of final rulings and decisions of the Tx Worker’s Comp. Commissi

ide rule sets preference
for conflicting setting
(usually oldest case takes preference)

problem w/attitude in fed. ct.

-“Not Ready” -in many counties, this announcement must be
accompanied by a written motion for continuance;
-in some counties the docket is not called –if you don’t object to
the setting of the case on the docket by the other side, you’re considered to be ready
-unless you timely file a continuance;
-docket call is of ten the last point before trial when motions for
continuance may be made that will be accepted by the ct. ;
-of ten if you fail to announce “Ready”, you lose control over the
setting of the case…the P’s failure to announce “Ready” could lead to dismissal;
-local rules dif fer when only one party announces…in some
counties, failure to announce is equated w/an announcement of “Ready”, and in other
counties, the appearing party’s request prevails over the no-show;

[www.courts.state.tx.us) -can get new rules on line

Hardin v. Hardin -p.4
-notice of a trial setting is a matter of due process
-failure to give adequate notice is violation of due process
Rule 245- 45 notice req’d for trial setting