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Texas Trial and Appellate Procedure
South Texas College of Law Houston
Carlson, Elaine A.

Preliminary Matters
                Motion: an application for an order of some kind from the court
                To appeal anything, must show:
                                (1) trial court erred;
                                (2) error was preserved; and
                                (3) the error was harmful/reversible (probably resulted in improper judgment)
                                                TRAP 44 Standard for Reversible Error:
i.         Error probably resulted in improper judgment, OR prevents a party from properly presenting their case on appeal
        Issues-grounds, procedure, preserving error, standard of review, test for whether error was harmful
        Parties are entitled to a FAIR trial, not a perfect one
A.       Setting the Case in Accordance With Local Rules
1.       Trial Settings
a.        Methods of setting initial trial:
ú TRCP 245. Three ways to get initial trial setting:
i.         Motion made by either party,
ii.       By the court on its own motion, or
iii.     By agreement of the parties
b.       Consequences of Failure to Set Case for Trial
ú  May result in case’s dismissal for want of prosecution (below)
ú  Counsel is not entitled to have case reinstated unless failure of party to obtain trial setting was not intentional and was due to accident or mistake
c.        Notice of Trial Setting: required by Constitutional due process
ú  Court must give “reasonable notice” to the parties of trial setting—45 days notice
i.         Applies only to the first notice
ii.       Notice is a constitutional right but it CAN be waived if attny shows up and announces ready, or fails to object
iii.     FAILURE to give notice is cause for setting aside a judgment and granting new trial
ú  If court fails to give at least 45 days notice:
i.         File motion to strike trial setting on grounds that the 45-day mandatory notice of trial setting was not given; litigant’s right to the notice is protected by due process.
৹   By failing to object à waive right to complain
ii.       If court refuses to strike the trial setting, to preserve the complaint:
৹   Counsel should object to proceeding at trial on the same basis.
d.       Court may reset the case to a later date:
ú  On any reasonable notice to the parties, or
ú  By agreement of the parties
e.        TRCP 3a empowers trial and appellate judges to enact local rules to fill in the gaps left by the state rules
ú  Must be in writing and approved by S.Ct
ú  Must be approved by judges in the county
ú  Local rules CANNOT impose different timing rules
2.       Docket Calls
a.        Generally
ú  Takes place the week before when case is set for trial (but differs w/ local rules!)
ú  Purpose is to make sure each party is ready for trial
ú  Generally the LAST point before trial when motions for continuance may be made
b.       Order
ú  Preferentially set cases
ú  Older numbered cases
ú  Recently filed cases
c.        Motion for a preferential setting may be made for good reason:
ú  Temporary injunctions
ú  Certain criminal actions
ú  Election contests
ú  Family protection orders under family code
ú  Appeals of final Worker’s Comp rulings
ú  Federal Employer’s Liability Act & Jones Act claims
ú  Appeals of final order of the commissioner of the General Land Office
ú  Priorities of a general nature (delay will case physical or economic harm)
d.       Options at docket call
ú  Ready
ú  Conditionally ready
ú  Not ready/motion for continuance
3.       Dismissal for Want of Prosecution (DWOP)
a.        TRCP 165a. When party seeks affirmative relief they have the obligation to move the case forward and show up for all scheduled hearings. If party fails to do this then case can be DWOP’d.
ú  The dismissal is WITHOUT prejudice (the only obstacle with re-filing is SOL)
b.       3 ways to get DWOP’d
ú  Plaintiff fails to appear at hearing they had notice of (165a)
ú  Party fails to timely obtain a trial setting (165a)
ú  Court’s inherent power to dismiss for lack of due diligence
c.        Procedural safeguards
ú  Party must be provided with notice and an opportunity to be heard before a trial court may DWOP a case
d.       Generally
ú  If π does not appear à risk getting DWOP’d
ú  If r does not appear à risk a judgment (post-answer default judgment)
e.        165a(3) Motion to Reinstate may overcome a DWOP
ú  Requirements
i.         Verified motion (containing affidavit)
ii.       Filed with court, and
iii.     Served on all parties
ú  Case shall be reinstated IF:
i.         Failure of party was not intentional nor the result of conscious indifference but was due to accident or mistake or o/w reasonably explained
৹   If order is not signed w/in 75 days the motion is overruled by operation of law
৹   TC’s plenary power ends at 30 days from the signing of the DWOP, so party has to file motion to reinstate w/in that 30 days
B.       Continuances TRCP 251-254
1.       General Rules for Motions for Continuance
a.       General Rule: MFC must be made before an unconditional announcement of “ready”
ú  Such announcement waives the right to seek subsequent delay
i.         EXCEPTION (mfc made after ready anncmt) à unforeseeable emergency arises thru no fault of the movant
b.       TRCP 251. Motion for Continuance
ú  Continuance should be granted if:
i.         In writing, Supported by affidavit, and Sets forth sufficient cause; or
ii.       By consent of parties; or
iii.     By operation of law.
ú  Must provide copy/notice to all parties
c.        Notice Requirement TRCP 21
ú  Must notify all counsel anytime something is filed, including co-counsel. Must also file a certificate of service saying that you have done this.
ú  Must notify lead counsel.
i.         Parties can agree beforehand to give all notice RE motions thru certain email address
ú  TRCP 21b Sanctions—court may in its discretion impose sanctions for failing to give notice to other parties of pleadings or motions
d.       Standard of Review
ú  Abuse of discretion
i.         If do not comply with notice or affidavit requirements, appellate court presumes the TC did not abuse its discretion in denying it
2.       Specific Continuance Rules
a.        TRCP 253. Absence of Counsel
ú  This is the most common ground for MFC – attorney scheduling conflict
i.         253 General Rule:
৹   Absence of counsel is not good cause for continuance, find s/o to stand in
৹   However, it is within the court’s discretion
ú  Withdrawal of Counsel
i.         Counsel does have right to voluntarily withdraw, but is w/in court’s discretion upon counsel showing ‘good cause’
ii.       When TC permits counsel to withdraw:
৹   Movant moving for continuance must show his failure to be represented was not due to his own fault or negligence; and
৹   Court must give the party time to secure new counsel (i.e., either deny the withdrawal or grant the continuance)
ú  Priority between conflicting trial settings
i.         There is NO priority, but some local rules DO set priority
b.       TRCP 252

made w/in reasonable time:
ú  Whether resetting would result in unnecessary delay in court’s docket;
ú  Whether resetting would interfere w/ handling of court’s biz;
ú  Whether resetting would cause prejudice to other parties.
d.       Rule:  resetting the case restarts the timeline
ú  If case is reset on the non-jury docket more than 30 days later, an otherwise untimely  request becomes timely
e.        Computing time (under ALL trcps)
ú  First day is excluded and last day is included
3.       Waiver
a.        Right is waived if not requested, or if party making demand does not show at trial
b.       Waiver in the original trial does NOT carry over when case is remanded for 2nd trial (even if the original trial was a bench trial)
C.       The Choice Between Trial by Jury & Trial to the Court
1.       Must consider advantages and disadvantages of a juiry
a.        Whether judge or jury would be more sympathetic
b.       Length and cost of jury trial
c.        Complexity of case (maybe too complex for jurors)
d.       Personal background of the judge
e.        Reputation of client or attorney and effect on judge or jury
f.         Amount of doubtfully admissible evidence (more relaxed in bench)
g.        Burden of proof
2.       Examples
a.        Representing large biz which govt has charged w/ pollution à NO jury
b.       Representing widow whose husband’s body was mishandled by funeral home, causing severe mental distress à judgment call because this is a NON-physical injury. Jury’s skeptical.
c.        Representing r in prod liab case, π was paralyzed, evidence of contrib. à NO jury
§3     MOTION IN LIMINE & Other Motions on the Eve of Trial
A.       Nature & Use of the Motion in Limine
1.       Motion in limine—precludes reference to the subject of the motion without first obtaining a ruling on the admissibility of the matter outside the presence of the jury
a.        Optional motion made “at the threshold”
b.       Can be oral or written
c.        Common law motion; not listed in TRCP or TRE
d.       Ruling is NOT a binding evidentiary ruling and thus is NEVER a basis for reversal
2.       Contents
a.        (1) exactly what evidence party anticipates its opponent will introduce, and
b.       (2) why the evidence is inadmissible.
3.       Timing
a.        If pretrial order contains a cutoff date for making MILs, that date controls. Otherwise it is usually made before voir dire
4.       Functions
a.        Educates judge on the issue
b.       Used to control the conduct of opposing counsel regarding prejudicial information that should not be presented to the jury
c.        Forces opponent to be secretive in the presence of the jury
5.       Procedure
a.        Pre-trial
ú  MIL is made by party seeking to keep the evidence out on grounds that it is irrelevant and/or highly prejudicial—granted or denied