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Texas Pretrial Procedure
South Texas College of Law Houston
Davis, Byron

Byron Davis, Texas Pretrial Procedure, Spring 2012
Chapter 1
 
Court Structure in Texas à [4 types of jurisdiction: 1) SMJ; 2) PJ; 3) Jurisdiction to enter a particular order, i.e., relief they can grant] ·         6 Places to Look to determine Court Jurisdiction
o   Texas Constitution
o   General Statutory Provisions for courts on a particular level
o   Specific statutory provision that authorizes the individual court
o   Statutes creating other courts in the county
o   Statutes dealing with specific subject matters
o   Local rules that may  specify a subject matter preference for particular courts
 
·         Justice Courts (not courts of record and review is de novo in county level courts, and sometimes district courts)
o   Amount in Controversy – $.01 -$10,000
§  Exclusive Jurisdiction under $200
§  More than $200 – concurrent with County Courts
§  More than $500 – concurrent with District Courts
o   Subject Matter Jurisdiction
§  Exclusive – Forcible Entry and Detainer (FED)[right of possession of the premises] ú  Unpaid rent or damages? Not part of FED (if amt in controversy > 10K à no jurisdiction)
ú  Title to real property? NO (this is district court exclusive jurisdiction)
o   Proper Relief
§  Foreclose mortgages, enforce liens on real property, issue writs of attachment, garnishment, and sequestration
o   Improper Relief
§  Injunctions, mandamus, or suits on behalf of state for penalties, forfeitures, or escheats.
§  Cant hear suits for divorce, defamation, declaration to title to land, or enforcement of liens on land.
·         County Level Courts
o   Constitutional County Courts
§  Amt in Controversy – $200-10K
§  Subject Matter Jurisdiction – Appellate Review of Justice/Small Claims greater than 20$
§  Proper Relief – injunctions, mandamus, certiorari, and all other writs to enforce jurisdiction
§  Improper Relief – defamation, divorce, eminent domain, sequestration, suits by state for escheat.
o   County Court at Law
§  Amt in Controversy – $200-100K
§  No Exclusive Jurisdiction
·         District Court Courts
o   Amt in Controversy – $500-No Top End
 
Calculating Amount In Controversy à All Damages are included in the amount in controversy, even though some of the claimed damages are speculative and not likely to be recovered.
·         Multiple Parties
o   Multi p’s v. D = aggregate damages
o   p v. Multi D’s (with counter claims) = aggregation of D’s counter claims cant divest court of jurisdiction
o   p v. Multi D’s = each claim judged solo, and must meet $ limit
·         General Rules
o   Include Atty Fees and Punitive Damages (some statutes exclude these amounts from amount in controversy)
o    Interest Rules (Rules say exclude)
§  Eo Nomine – (Excluded) interest sought in litigation that is provided for by specific agreement or a statute for the detention of money
§  “As damages” – (included) interest recoverable in adition to the amount of debt as damages resulting from the failure to pay a sum when due.
ú  Equitable prejudgment interest is considered “as damages”
o   Don’t Include Costs of Court
o   Multiple Claims –Court can take jurisdiction below its minimum levels when they arise from the same T/O, but cant go above their limits
o   Amendments Increasing/Decreasing Claim
§  No effect if due to the passage of time
§  If it was for claims that could have been filed with original petition, then it will defeat jurisdiction
 
 
Procedure for Raising Lack of SMJ
·         Plea to the Jurisdiction and Sum. J.
o   NOT a motion to dismiss
o   Can be raised at any time by parties or sua sponte
·         Appeal/Mandamus
o   p can appeal TCt determination of no jurisdiction (app ct will remand for trial) à b/c if the TCt says no juris, its like a final judgment
o   D can only appeal from final judgment
o   Govt D can get an interlocutory appeal
o   Mandamus isn’t available for TCt determination of SMJ before trial on merits (might have changed)
·         NO WAIVER
o   SMJ can never be waived
o   A Ct without jurisdiction cannot xfer the case, but can only dismiss so that it can be refilled.
·         Standing, Ripeness, Immunity
 
Judges in Texas à Recusal and Disqualification
·         Constitutional Disqualification
o   If judge is interested in case, parties are connected with him, or

ict
·         Filing Documents
o   R. 21 – filing is effective upon delivery to the clerk, who will notes the date and time of the filing on the document, insert the document into the court’s file, and the filing “shall be noted on the docket.”
·         Serving Documents
o   R. 21 requires all filed documents contain a “certificate of service” certifying that the document was served in accordance with the rule.
o   Methods of Service in 21a
§  Delivery – complete wen delivered to agent or atty of record
§  Certified/registered mail, return receipt requested – complete upon deposit in USPS mailbox
§  Fax – complete upon receipt of the fax, or if after 5PM, the next day.
§  Response date is calculated from the date of service, and service provided by mail or fax, 3 DAYS ARE ADDED TO THE REPONSE TIME
ú  EXCEPT for FED EX – no 3 days added
·         Responding to Filed and Served Documents
o   Response date is calculated from date of service or date of filing, depending upon the type of document to which response is made.
o   Date of service, filing, or court order is DAY 0!!! (don’t count this day!!)
o   If the last day is a Saturday, Sunday, or Legal Holiday (when the clerks office is closed, regardless of whether it is an official holiday listed in the statute), time period runs until the next day that isn’t one of these days.
o   Motion to Enlarge – Extends timing by court for anything
o   Saturdays, Sundays, and Legal holidays are counted when calculating the response date…
§  EXCEPT! If there are 5 days or less to respond…
ú  EXCEPT! For the 3 day notice of a hearing period in R. 21, the 3 days extension of time for service by mail or fax, and 5 day periods governing forcible entry and detainer actions.