Texas Pretrial Procedure Outline

Texas Pre-Trial – Carlson – Fall 2008
 
1)      Chapter 2: Emergency and Interim Relief àSpecial Remedies: Interim relief is used to preserve the status quo pending a determination of the primary proceeding.
a)      Temporary Restraining Orders (TRO’s) = usually given under ex parte proceedings. Because of this, they are hard to get.
i)        Due Process protects the party who is not there and it must be perfect.
ii)      TRO’s life span is only 14 days
iii)    Party seeking must THEN seek temporary injunction
iv)    Courts can grant this on any day at any time, not 9-5. A judge will always be available. 
 
v)      TRO v. Temp Injunction: TRO last only 14 days, Temp Injunction can last as long as the court says, but can NEVER be ordered ex parte.
 
2. Justice cts. lack SMJD for injunction. Assuming you ID a district or county ct. that is appropriate, what do you need?
a.   Petition or complaint
b.   Temporary Restraining Order itself
c.   Restraining Order Bond (to protect the D if the grounds are fond invalid)
d.   Filing fee
e.   Order granting the TRO (typically included in the TRO itself)
3. Std to grant ex parte:(DP implication to ex parte b/c DP requires notice & opp. to be heard)
1)      
Rule 680
A TRO may not be granted w/o notice to the other side (i.e., ex parte)
2)       unless the petitioner shows by a verified petition or affidavit that
3)       immediate and irreparable injury will result if must notify other side, and
4)       Every order granted w/o notice to the other side must be signed, dated and to the hour, filed
5)       in clerk’s office, and define injury and state why irreparable, and the facts showing injury.
****Procedural requirements are severe – strict compliance Rule 680 – 692. Must state when it will expire, not over 14 days. Court can extend it once for like period of time, therefore 28 days max (14 x 2).
 
4. When to obtain TRO
§ Sought when no lawsuit is pending. 
§ Start lawsuit thru appropriate procedures.
§ You represent landowner who has 3 acres but some other co. is cutting down their trees. Irreparable injury follows if trees are cut down. You need emergency relief. Go to Dist. or Cty cts. Harris Co. – 1 judge is designated for a period of time in ancillary docket for emergency relief weekly. Look if there’s a particular judge assigned or if just file it & it falls in a ct. Weekend go thru procedures who to contact. Ct.house steps may have list. 
5. Procedure
1st – call dist. clerk’s office – tell her you need TRO, ask who’s judge. Clerk issues it after judge signs it. 
2nd – give ct. heads up summary of the issue. Judge may decline to hear matter unless you bring opposing side. 
                                                – Serve to opposing party & agent – line up sheriff.
                                                – Get a feeling from ct. to see what is required for a bond.
3rd – Petition & complaintà Petition must be supported by affidavit proof in support of why we need TRO.
 
7.       If TRO granted w/o notice, Temp Inj application needs to be set for earliest possible hearing. Every rest order must include an order setting a certain date for a hearing on the temporary or permanent injunction sought. 
8.       On 2 day’s notice to the party who obtained the TRO w/o notice, adverse party may appear & move its dissolution or modification & the TC. will proceed expeditiously. Motion for Dissolution
 
vi)    Rule 680 à no temp retraining order can be granted w/o notice of other party unless IRREPARABLE DAMAGE/INJURY will occur. If given ex parte, must state date, time, why its irreparable, and why court proceeded without notice. (include all that supports ex. Parte)
(1)   Should include duration, not exceeding 14 days. 
(a)    Court can extend this period ONCE.
(i)     Must be in writing and reason for extension given.
(b)   Motion for dissolution should be presented/heard as soon as practicable.
 
b)      Temporary Injunction (TI) – when TI is issued which doesn’t conform with requirements of the rule, it necessarily constitutes an abuse of the trial court’s discretion and requires reversal. 
i)        Charter Medical Corp. v. Miller à TI limiting right to practice podiatry in a hospital was invalid because it didn’t set out reasons for its issuance. 
(1)   Failure of TRO is an abuse of discretion
ii)      If party disobeys injunction à can go to a hearing for contempt
 
c)     Interim Relief for Secured Creditors and Other Claimants – 3 different writs.
Interim relief (IR) – PURPOSE – ask ct. to issue relief thru these 3 writs before ct. hears merit & before final judgment is entered.
2.  Constitutional Standard – Common procedural requirements for all 3 pre-judgment writs:
a.   Post bond – If adversary obtains relief, they obtain it through the bond you posted. 
b.   Judge issues writ – after a hearing (may be ex parte) after party proves ground for support, after verified petition (lawsuit filed) with affidavit swearing under penalty of perjury to support writ.
c. Δ must be advised of rt. to regain prop’y by (1) moving to dissolve it or (2) putting up their own bond – replevy bond.
 
3. IMPETUS/REASON – Only narrow grounds for issuance, if Δ trying to judgment-proof themselves (by leaving state, concealing prop’y, wasting) so we need protection of ct. so that there can be something to look for after judgment.
 
i)        Writ of Sequestration à purpose is to take specified property, where claimant assert preexisting property interest, out of the possession of a party to a suit and places it in the custody of the court pending final judgment.
(1)   Asking the court to have designated property that creditor has preexisting right to, seized and held by the court. 
(2)   Only available when provided for by statute, and strict compliance with the statute and applicable rules are required. 
(3)   Right to regain possession by filing a replevy or motion to dissolve this writ. 
(a)    If motion to dissolve is granted, then reasonable attorney’s fees and damages can be awarded.
(b)   Replevy requires defendant give bond with sufficient sureties. 
(4)   EXAMPLE: A sells B a car, secured by promissory note. B signs note promising $300/mo. for 5 yrs. & car is collateral (A takes SI in B’s car). B stops making payment. A can sue for breach of K but it may be a year until trial. Buyer may have accident meanwhile, sell it, ill-treat it, depreciates rapidly. So they will get writ of sequestration. 
(a)    When you have option of S, you may have option for self-help. Think about expenses for writ
 
ii)      Writ of Attachment à Seize non-exempt property up to a certain dollar amount (X)
(1)   Purpose is to impound and fix a lien on nonexempt property, to prevent a debtor from making themselves judgment proof
 
iii)    Garnishment à name the bank as garnishee, and they take the money out automatically before it becomes available to the debtor. 
(1)   Available when:
(a)    when an original attachment has issued, but not satisfied OR
(b)   Suit is brought for debt owed and an affidavit is made by the P to the effect that the debt is just, due, and unpaid, and the D doesn’t possess enough property in Texas which could satisfy this debt. 
(2)   Requires a prejudgment bond
(3)   Can not get exemplary damages for wrongful garnishment unless can prove don