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Pre-Trial Procedure
South Texas College of Law Houston
Davis, Byron

TEXAS PRE-TRIAL

1- The Texas Civil Justice System
A. Polaris Investment v. Abascal
1. 3 ways to review T. Ct rulings:
a. Appellate review of final ruling
b. Interlocutory appeal
c. Writ of mandamus
2. *In abatement of discovery, for mandamus to lie, the egregious nature must go to the heart f the plaintff’s case/ i.e. “permanently deprive the plaintiff of substantial rights.”
3. Writ of mandamus—allows an immediate review of a court action which is not otherwise reviewable
a. Mandamus is for limited circumstances—
1. ministerial acts—the Ct must do / has a duty to do
i. all had to show was judge violated ministerial duty
ii. resulting in an abuse of discretion or where appeal on final jgmt would not be adequate
2. discretionary acts—judge has discretion to act
3. Not incidental rulings
4. venue determinations are not reviewable by mandamus
i. Power to make venue changes is purely statutory. If you have a problem with it, the take it up with the legislature.
ii. EXCEPTIONS:
4. Review in a mandamus action is de novo
5. Davis Note- do not seek a writ of mandamus without first telling the judge.
6. Notes
a. A party may not obtain immediate appellate review, unless allowed by statute
1. Interlocutory appeal allows immediate review (by statute) of:
i. orders ruling upon the special appearance
ii. plea to the jurisdiction
iii. venue rulings
b. Writ of Mandamus—an original proceeding in an appellate ct that seeks an order compelling a state official to refrain from acting contrary to law
1. Party must show:
i. a clear abuse of discretion or legal error, and
ii. no adequate remedy by appeal
1. EXCEPTONS: failure to do a ministerial act; statutory strike of judge; constitutional disqualification of judge

Rulings on Pretrial Matters

1. Requesting Action from the Court: Motions, Pleas and Other Requests
a. Safety Kleen v. Garcia (judge refused to set hearing on motion)
1. A T Ct is required to consider and rule upon a motion within a reasonable time
i. The act of giving consideration to and ruling on a motion is a ministerial act
1. mandamus may issue to compel a judge to act
b. Michiana Easy Livin’ v. Holten
1. IN THE PAST, the court presumed that pretrial hearings were non-evidentiary absent a specific indication or assertion to the contrary
2. NOW, If the proceedings nature, the T. Cts order, the party’s briefs or other indications show that an evidentiary hearing took place, the complaining party must present a record of that hearing to establish harmful error
i.

h attorney
2. all filed documents require a “certificate of service” certifying that you complied with the rule
3. If requesting a hearing—muse also serve notice not less than 3 days before the hearing
ii. TCRP 21a—sets forth the methods of service
1. Delivery–complete when document is delivered;
2. Certified / Registered mail–complete upon deposit into the custody of the US Postal Service; or
3. Fax–complete upon receipt unless received after 5pm in which case it is considered received on the next day
iii. TCRP 21b—if any party fails to serve on or deliver a copy of any pleading, or motion, in accordance to these rules, the ct may at its discretion impose an appropriate sanction
4. Responding to Filed and Served Documents
i. TRCP 4—Computation of Time
1. the day of the act / event from which you are calculating response time is not included in the time you have to respond
if the last day is a Saturday, Sunday or a legal holiday, the time period runs until the next day that is not a Saturday, Sunday or legal holiday