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Texas Pretrial Procedure
South Texas College of Law Houston
Davis, Bryon Preston

Chapter 1: Introduction to the Texas Courts
 
Rule 3a Local Rules
Each administrative judicial region, district court, county court, county court at law, and probate court may make and amend local rules governing practice before such courts, provided:
(1) That any proposed rule or amendment shall not be inconsistent with these rules or with any of the administrative judicial region in which the court is located;
                                (2) No time period provided by these rules may be altered by local rules;
(3) Any proposed local rule or amendment shall not become effective until it is submitted and approved by the Texas Supreme Court
(4) Any proposed local rule or amendment shall not become effective until at least 30 days after it is published
(5) All local rules or amendments adopted and approved in accordance herewith are made available upon request to the members of the bar
(6) No local rule, order, or practice of any court, other than local rules and amendments, shall ever be applied to determine the merits of any matter.
 
Local Rules
o    Every county has them. Some for both county and district courts (ex. Harris)
o    At one time, the local rules were not written down and were a “legal trap” for outside counsel. Now all the local rules must be approved by the Texas Supreme Court and cannot be in conflict with the Texas Rules of Civil Procedure.
o    When rules of Civil Practice and Remedies Code conflict with the Texas Rules of Civil Procedure, then the CPRC trump.
 
Overview of Texas Trail and Appellate Procedure
o    Preserving Error
·         General Rule of Thumb: only complain if you’re being harmed, not ever error every time.
·         There are few errors that will actually reverse a case.
 
Chapter 2: The Texas Trail Courts
A.      Court Structure of Texas
·         Every county is divided into prescient and every prescient has at least one Justice of the Peace who is also the small claims judge.
·         County Judge is also head of Commissioners Court, which runs the counties business. 
·         By statute, every Probate and County Court @ Law Judge must be an attorney, but JP or County Judges do not. 
 
1.       Civil Subject Matter Jurisdiction of the Texas Trail Courts
·         First determine whether it is a TYPE of case
o   Ex: landlord/ tenant dispute; admiralty; title to real property; eminent domain; trespass to try title; defamation of character; divorce.
·         If it is a TYPE of case, then the amount in controversy doesn’t matter. If its not a type of case, then ask “What is the amount in controversy?”
o   Justice Courts [Government Code 27.031, .032, .033] § Have exclusive jurisdiction over foresable entry and detainer
§ $0.01 – $10,000
§ Exclusive jurisdiction for amounts under $200
§ Appeal from a Justice Court is to the county court where a trail is de novo held, which can then be appealed to the court of appeals. 
§ Also function as small claims courts, however small claims cannot appeal past the trial de novo.
o   Municipal Courts [Government Code 28.001, .002, .003, 30.003] § Serve primarily as the lowest-ranking criminal courts.
§ Punishable by a fine not to exceed $2,000
o   (Constitutional) County Courts [Government Code 26.021, .022, .041, .044, .050, .051] § $200.01- $10,000
§ Cannot hear suits for defamation, divorce, eminent domain, for forfeiture of a corporate charter, for the right to property valued at $500 or more and levied on under a writ of execution, for sequestration or attachment, for recovery of land, to enforce liens on lands, or suits by the state for escheat.
§ Has exclusive jurisdiction on uncontested probate cases in which no other court in the county can hear the probate case (not possible).
o   County Courts at Law [Government Code 25.0001, .0003, .0004] § $200.01- $100,000
§ Jurisdiction over workers comp cases regardless of amount in controversy
o   Probate Courts [Probate Code 3(e),(f),(g), 4, 5, 5a, 5b] § No set amount in controversy requirement
§ “dominant jurisdiction” over any matters “appertaining to or incident to an estate pending” in that court.
o   District Courts [Government Code 24.007-.011] § $200.01- highest amount
§ A minority of CoA in Texas say the minimum is $500.01
§ Have “residual jurisdiction”
 
2.Calculating Amount in Controversy
·         47(b) requires the petition to state that the damages sought are within the jurisdictional limits of the court, which is sufficient to put the case within the court’s jurisdiction. 
·        

disqualify themselves in all proceedings in which:
(a) they have served as a lawyer in the matter in controversy, or a lawyer with whom they previously practiced law served during such association as a lawyer concerning the matter; or
(b) they know that, individually or as a fiduciary, they have an interest in the subject matter in controversy; or
         (c) either of the parties may be related to them by affinity or consanguinity within the 3rd degree.
 
o    3 ways to reverse a Trial Judge
·         Appeal after final judgment (most common)
·         Writ of Mandamus
§ Extraordinary remedy.
§ Used for force an official to do some particular act
§ To obtain, must show (1) an abuse of discretion and that (2) appeal after final judgment is not adequate
·         Interlocutory Appeal- (usually by statute)
o    Notes
                    Constitutional Disqualification. “No judge shall sit in any case wherein he may be interested, or where either of parties may be connected with him, either by affinity or consanguinity, within such a degree as may be prescribed by law, or when he shall have been counsel in the case.”
                    Recusal. 18b(2) a judge shall recuse himself in any proceeding in which:
(a) his impartiality might reasonably be questioned;
(b) he has a personal bias or prejudice concerning the subject matter or a party, or personal knowledge of disputed evidentiary facts concerning the proceeding;
(c) he or a lawyer with whom he previously practiced law has been a material witness concerning it;
(d) he participated as counsel, adviser or material witness in the matter in controversy, or expressed an opinion concerning the merits of it, while acting as an attorney in government service;
(e) has a financial interest;
(f) degree of relationship with either party