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Texas Pretrial Procedure
South Texas College of Law Houston
Carlson, Elaine A.

TX Pretrial Procedure Outline- Fall 2015 Professor Carlson
Ch 2
An Overview of the Texas Court System
The Texas Appellate Courts
A Simplified Description of the Texas Trial Courts
Interim relief for Secured Creditors and Other Claimants
Sequestration
Civil Practice and Remedies Code Ch 62
Monroe v. General Motors Acceptance Corp. (TX Civ App 1978)
Notice of Lis Pendens
File a notice claiming some interest in/dispute in property in real prop records in county where property was located. Don’t lie about this because actions can be brought against you for improperly clouding someone’s title.
Helps/impedes any future bona fide purchaser because claiming interest will cause title not to clear. Gives you leverage re: debt.
Self-Help Repossession by Secured Party
Interim Relief for the General (Unsecured) Creditor
Attachment
Not secured. Asking sherrif/constable to seize up to $ amount of property, bring into custody of court, hold it until judgment. If you lose, you’ll have to pay costs for securing and holding property. Will have to put up a bond.
Civil Practice and Remedies Code Ch 61
Prejudgment Garnishment
Practice Exercise #2
Writ of sequestration if can’t self-help repossess without breaching peace
Writ of sequestration because you can’t really repo without breaching peace- can’t just block car in rendering it unusable, that’s going too far.
Need SJ and Venue. SJ can’t
Writ of sequestration: for secured creditors
Ch 3 The Subject Matter Jurisdiction of the Texas Trial Courts
An Overview of the Texas Court System
The Texas Appellate Courts
A Simplified Description of the Texas Trial Courts
Need SJ and Venue. SJ can’t be waived but venue can- sometimes P will deliberately file in wrong county hoping D waives improper venue. Worst thing that can happen when you file in improper county is case gets transferred.
JP and county judges aren’t required to be lawyers. Close to 90% of JPs aren’t lawyers.
More common (~90% of the time) look to $ in controversy to figure out SJ. Remainder (~10%) what it’s about determines SJ.
Constitutional and Statutory Provisions: An Overview
Justice Courts
Appeal from JP is trying case over again in county court if over $250 AIC.
“People’s court”- certain matters require judge to have legal training so we don’t want JPs to adjudicate these matters.
Up until ~1 year ago, TX has small claims courts. Abolished last legislative sessions and simplified JP rules.
FED= evictions. TRCP 500s. Always look at JP practice guide post-2014 or it’s wrong.
Sole issue in eviction is who gets possession. Can also be and often is an action for rent owed. Generally required to be litigated together (res judicata) but specific statutory provisions allowing those two actions to proceed as different lawsuits. Writ of possession from JP for quick procedure and litigate back rent where it’s proper depending on AIC.
Sought after position in HC. JPs are allowed to get $ from marrying people.
Constitutional County Courts
Sits as appellate court over JP judgments appealed trial de novo (all over again/do over).
Sometimes probate but varies by county.
Similar SJ restrictions as JP but can also hear injunctions.
1 per county. Vote for the county judge. In larger counties legislature allows CCJ to defer docket to County Court at Law. Time is spent presiding over Commissioner’s court- administrative running of the whole county. County Judge will hear lawsuits in medium and small counties because they don’t have as many administrative responsibilities.
Typically county judges in Harris County are licensed.
Statutory Courts
County courts at law
Certain specific courts for areas that the docket is backed up- Probate in Houston, Dallas have same jurisdiction as District Courts (unusual), Family Courts, etc. Basically created by legislature on as-needed basis.
County Courts at Law are largest group created by the legislature. Each individual CCaL is created by its own statute that will define the jurisdiction. Look to general statute and the specific statute for that court and whichever is more specific controls.
Don’t need to memorize sample county provisions just know it can be different county-to-county.
Legislature also has ability to create other specialty courts. Harris and 15 other counties have statutory probate courts.
District Courts
Jurisdiction any time other courts don’t have jurisdiction- residual jurisdiction.
Primary Texas trial courts. At least 1 per county but more in many counties.
Judge can assign your case to another judge/exchange benches
Judges can also assign visiting judges to come in for either a specific case or time period. Can be judges who didn’t get reelected or are retired.
Shared Jurisdiction; District and County Level Courts
Shared Jurisdiction; Filing and Transfer
Adjunctive Responsibility and Transfer: District Courts and Statutory Courts
Multidistrict litigation: cases that are related by their subject matter consolidated under an MDL order for pretrial purposes then go back to the judge where case was originally filed. Fairly new in TX but happened at Federal level for a long time.
MDL Court Clerk is TXSC Clerk.
MDL panel: 5 judges appointed by TXSC. Decide whether or not cases are going to be consolidated for pretrial purposes to a specific judge. Started as 5 appellate judges. Litigator or trial judge can send case/subject to MDL to consolidate for discovery, SJ, Daubert, etc. Involuntary- your case goes to judge assigned if MDL panel says so. If you survive pretrial, it’ll go back to the originally filed county for trial.
Adjunctive Responsibility and Transfer in Cases Involving Eminent Domain and Probate
Concurrent in district and county court at law if it exists BUT in Harris County CCaL have exclusive jurisdiction
Probate is about that it’s probate not $
Statutory probate court, you go there.
NOT the same thing as a County Court at Law exercising probate jurisdiction. If there are CCaL, look there to see if they have probate jurisdiction. CCaL don’t have same jurisdiction as Statutory Probate Courts when it comes to “Pull Down” authority (Gonzales vs. Reliant)
Summary
MDL cannot modify pretrial rulings of judge once it goes back to home court for trial except for very limited circumstances
“Take it under advisement” sometimes judge just doesn’t want to rule on it now/ever. Can technically madamus a judge for a ruling but that’s a really poor life decision.
Practice Exercise #3
Determining Jurisdiction
Exclusive jurisdiction- district court. UNLESS specific statute creating CCaL gives jurisdiction.
Prop. code allows justice court to hear FED part without res judicada issues. District court or statutory county courts for rest of it.
Same as 1A. AiC doesn’t control for family/divorce, it’s just determined by subject matter without regard to $.
Concurrent statutory courts and district courts. BUT pay attention to specific county.
Justice court as well as others. Breach of K case for small $ so JC makes sense.
Title suit so district court, maybe CCaL if it’s within statutory jurisdiction. Ch 23 of Prop. Code.
District court because no other courts can hear liens unless there’s a CCaL given that jurisdiction.
District bc title
See p100/101, figure out county and it’s scheme for probate
Justice courts can’t do injunctions, no amount in controversy so district court. If there had been an amount in controversy, maybe another one of the courts but that isn’t the case. This is residual jurisdiction of district court.
Look at venue (what counties can I properly sue? What kind of jury/judges?),
expense (so within jurisdiction of all courts), JP court least expensive because generally no discovery (have to get court’s permission to conduct discovery), quick dockets so not a lot of pretrial just straight to trial. Consider complexity of case and training of your likely judge. Also consider your own experience (have you done JP? Familiarity with rules?) Appeals- JP you basically get a do-over vs other courts it’s normal appeals.
Federal requires 2 pretrial conferences. If client says taking it on principle get your $ upfront. More expensive and more formal. Also business of federal judges with crim docket border state narcotics.
Promissory note used to secure land and foreclose on lien- can’t do that in JP.
Jurisdictions
Limited vs general: fed are limited (AiC or fed question); gen jur can hear anything that walks in the door within a range of $ (district courts); stat probate = limited
Exclusive vs concurrent: exclusive one court can hear it (dist. But exception for CCaL if leg. Gives exception); concurrent means overlapping between several
Original vs. appellate
Residual: catch-all- if no other court has been given jurisdiction over that type of case, then jurisdiction in district court
Amou

rategically you wouldn’t let go of making P plead $ amount. Gives D some idea of what is on the table, esp. important for insurance/caps. Ins. Co. under duty to settle case where reasonably prudent person would do so and if they don’t you can sue them later for excess amount.
If trial proof doesn’t establish jur, TC should dismiss for want of jurisdiction.
Competing Jurisdictional Grants: Particular Controversies
The District Court Land-Title Grant Collides With the Justice Court: Forcible Entry and Detainer
Typically between LL with title and renter not paying rent LL has superior title. JP has no jurisdiction over case where court must determine questions of title to determine who has superior right of possession.
Dass, Inc. v. Benjie Smith DBA Oak Cliff Metals
Problems with Probate Jurisdiction
Statutory Probate Courts
Generally
Estates Codes
Allows Probate court to bring case properly pending in another jurisdiction into probate if related to probate proceeding or personal rep of estate is a party, consolidates everything re: probate assets in one place. Also gets more info in probate court about what’s going on with assets. EX: survivorship action.
Pull-Down Jurisdiction vs. Venue
Gonzales v. Reliant Energy, Inc. (TX SC 2005)
Venue needs to be proper for that claim in county where statutory probate court is located to use pull-down jurisdiction.
Didn’t really go much into probate stuff.
Justiciability, Standing, and Related Doctrines
Needs to be a justiciable controversy before court has SMJ. No advisory opinions (but one exception). BUT Can have dec. action- can seek to adjudicate real controversy between parties determined by judicial ruling.
Fed ct. exercises jur under Eerie principles state substantive law applies. Fed Ap Ct trying to adjudicate issue of state substantive law that’s unclear or undecided can ask TX SC to answer certified question. TX SC can choose to either accept and answer or decline. Both courts of independent jurisdiction. Fed Ap Ct not bound by TX SC answer either.
Moot= no longer have case or controversy. Court lacking SMJ because claim isn’t ripe yet should dismiss.
Bottom 132/top 133 standing discussion- IMPORTANT. No standing= lack of SMJ.
Consequences
Can’t use savings statute unless original suit filed in good faith/not in intentional disregard of jurisdiction
Vale v. Ryan (Tx App 1991)
Original disposition on the merits so res judicata means can’t refile. TC didn’t want to adjudicated but tried to say they didn’t have to just dismiss without prejudice/wanted to adjudicate on merits. 5th Cir. Said you have to dismiss without merits.
Parallel proceedings- state can’t stop feds and feds can’t stop state. Usually 1st to get final judgment controls, assuming jurisdiction.
Went to fed ct, dismissed D’s claims, fed date of dismissal pending state claims would be day 0 for 60 days to refile in state court. 
Chapter 3 The Subject Matter Jurisdiction of the Texas Trial Courts
An Overview of the Texas Court System
The Texas Appellate Courts
Courts of Appeal: consider both factual and legal issues. Must rule on timely appeals from cases in which county or district courts have or assume original jurisdiction and the judgment or AIC exceeds $250. Not discretionary review.
Texas Supreme Court: questions of law only. Discretionary review. May deny review if it believes COA error, if any, is not sufficiently important to the jurisprudence of the state. Has jurisdiction in few situations to hear appeal directly from trial court order.