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

TEXAS PRETRIAL PROCEDURE
CARLSON
SPRING 2016
 
 
TEXAS CIVIL PROCEDURE OUTLINE
 
I.          SMJ OF THE TX TRIAL COURTS
A.        Structure and Amount in Controversy (AIC) – court only has authority and jurisdiction to render a judgment in a case within a certain dollar amount.  A court that acts without SMJ, then that judgment is void.
                        1.         Justice Courts ($.01 – $5,000.00)
                                    a.         more relaxed in procedure and evidence rules
b.         judges not required to be lawyers (so don’t file a complex case there)
                                    c.         not a court of record
d.         if there is at least $20 on the table then you can appeal de novo to the county court
                                    e.         no jurisdiction to issue injunctions
f.          cannot hear:    suit on behalf of state to enforce penalties, forfeitures and escheats, divorce, slander or defamation, title of land or enforcement of liens on land.
g.         original jurisdiction for criminal misdemeanor cases punishable by fine only, exclusive jurisdiction for its AIC
h.         forcible entry and detainer cases, and cases for liens on personal property
                        2.         Constitutional County Courts ($200.01 – $10,000.00)
                                    a.         need not be lawyers either
                                    b.         they have limited probate jurisdiction
                                    c.         almost same “can’t”s as JP
                                    d.         may issue injunctions though
e.         juvenile jurisdiction, appeals from JP, writs of attachment and sequestration, concurrent with JP for its AIC
                        3.         District Courts  ($500.00 – infinity)
a.         given jurisdiction to all matter except those reserved for other courts
                                    b.         it hears all the “can’t”s; like all real property cases
c.         residual jurisdiction:  if SMJ is not in any other court then the only court that may hear it is the district court (ex.- $20 and injunction, b/c there is no AIC for county court and JP cannot issue an injunction).
4.         Legislative County Courts ($500.00 – $100,000.00) aka County Courts at Law
a.         created by legislature to heat specific type cases, must look at the statute that creates it
                                    b.         they are created on an as needed basis
c.         that is the general AIC, unless their empowering statute says otherwise
                        5.         Within a county cases may be transferred and shared.
6.         There is a small class of cases where SMJ is determined by the type of suit and not the AIC:
a.         eminent domain = district court has concurrent jurisdiction with CCL if there is one in your county; exception is in a county with 2 million or more then CCL has exclusive jurisdiction.
b.         probate = CCL if there is one, smaller counties’ probate is in the constitutional county courts, but contested matters transfer to the district courts.
c.         divorce = family law district courts.
                        7.         Terms for jurisdictions
                                    a.         exclusive – only
                                    b.         concurrent – overlap
                                    c.         general – all
                                    d.         limited – certain type only
                                    e.         original – trial
                                    f.          appellate – review
8.         When the face of the pleading affirmatively shows lack of jurisdiction then the only authority a trial court has is to dismiss, want of jurisdiction.
            B.        Cases for title and forcible entry/detainer
1.         Orange Laundry Co. v. Stark:  P sued D in JP court for damages to land and for possession of it.  In D’s answer they tried to raise title issues as a red herring.  JP trial court was correct to exclude the title issue b/c it has not jurisdiction to hear that type of case – the title issue was raised incidentally.
a.         It was not necessary for the court to adjudicate title to determine who had the superior right of possession.
b.         JP has original jurisdiction for forcible entry/detainer.
c.         When forcible entry and detainer is brought plus a sum for damages, then the AIC determines the court.
2.         Rodriguez v. Sullivan:  in this case the court had to adjudicate title to determine possession.  One party said he had a deed and buyer said he had paid enough to get title.  So since the title issue was determinative of possession the JP court had no jurisdiction = void judgment.
a.         District court has SMJ to enjoin execution of void lower court judgment.
            C.        Cases for Probate Jurisdiction
1.         Seay v. Hall:  P sued D for wrongful death and survival in district court and probate court.  Probate court dismissed the action and TX Supreme Court agrees.  This case was not “incident to an estate” or “appertaining to an estate.”
a.         wrongful death action is not included in the definition for the settlement, partition and distribution of the estate – and the legislature limited probate court jurisdiction to where this was the controlling issue.
                                    b.         “claims by or for an estate” refers to debt, not this
c.         at the time of this case there was no express mandate for this type of personal injury case for a probate court
i.          this has been overruled – today wrongful death cases can be brought in probate court along with settlement of adjudication of estate.
2.         In Re Graham:  in this case the TX.S.Ct. says that a statutory probate court has the authority to transfer to itself from the district court a divorce proceeding when one spouse is a ward of the probate court.  This is incident to or appertaining to a guardianship estate.
a.         asking for a divorce from an incompetent and asking for child support is appertaining to an estate b/c it is like a debt; child custody would be different and there would be no jurisdiction in a probate court.
            D.        The AIC
1.         What the P can claim in good faith and unless excluded by statute it includes actual damages, penalties, punitives, attorney fees, and interest that is an element of the damages.
2.         What is excluded by law = costs and interest in the name of interest.
3.         Peek v. Equipment & Service Co.:  P file for wrongful death and failed to allege any damages on the face of the pleading.  However, from the nature of the claim it was absolutely apparent.  When the face of a pleading affirmatively negates SMJ, then only authority is to dismiss; but when the pleading simply fails to allege AIC the court presumes jurisdiction.
            a.         the pleading was sufficient enough
            b.         D could file special exceptions to require P to allege AIC
c.         AIC is determined at the outset, amending damages does not deprive court of jurisdiction
           

.001, a writ to         seize the collateral.  A party must have a pre-existing property interest of specified property and place it in the custody of the court pending final judgment.  Court holds it to preserve the property.  Can be issued ex parte, but there are lots of procedures to follow.  The property must be in danger to issue this writ.
                                    b.         lis pendens
                                    c.         self-help repossession
                        4.         Unsecured
a.         attachment:  CPRC §61.001, seize specified amount of non-exempt property to bring it before the court to secure satisfaction of potential judgment.
b.         garnishment:  CPRC §63.001, seek to have person’s property seized that is in the hands of a third party to secure a potential judgment.  Can be a pre-judgment action between the garnishor (creditor) and the garnishee (the third person in possession of the debtor’s property).
i.          obligation of garnishee to file an answer setting forth the property it holds of the debtor (and cannot release property, only to sheriff)
ii.         must possess property in TX sufficient to satisfy the debt (there are not grounds for garnishment if the debtor has $)
iii.        can also garnish after judgment, and don’t need a bond b/c there has been a day in court (must have a valid judgment and the debtor has no assets)
iv.        Bank One TX v. Moody:  D must answer, and if not then there is a default judgment.  They risk a default in the full amount of the original judgment and not just the amount sought to be garnished.  A garnishee could be OK for filing an equitable motion for new trial.
                        5.         Procedural protections
a.         a party seeking any of these must post bond, writ issued after hearing, supported by verified affidavit, and must be advised in writ itself of right to regain property by putting up a replevy bond, and also be advised of his right to dissolve it.
b.         burden of proof is on the party who obtained writ to show its issuance was proper
                                    c.         a tort action lies if any writ is wrongfully obtained
                                    d.         must comply with TRCP and CPRC
6.         Chandler:  P seeks damages for wrongful garnishment, default against P in original suit.  Tort action lies if the facts in the affidavit are untrue.  Here the numbers in the affidavit for the $ did not correspond with actual judgment.  A tort lies every time a party makes an untrue statement in an affidavit o support a writ of garnishment.
7.         Barfield:  when can party recover punitives in this tort?  Need to show more than just wrongful, also need to prove malice (bad motive and reckless disregard for rights).  Good faith is a defense to punitives.  Any false affidavit creates a tort action.