Select Page

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

Elaine Carlson
Texas Trial and Appellate
Fall 2015
[A]            Setting the Case for Trial in Accordance With Local Rules
[1]            Trial Settings
[a]            Methods of Setting for Trial 245
Notice of Trial Setting-one rule other party gets 45 days for first setting, rule 245. After first setting, reasonable notice standard.  Don’t really have state-wide rule bc practices vary so widely.  You really must follow local rules.  In practice, you can set a case for trial, but still not have trial. The older case typically heard first, EXCEPT for preferential settings.  Soft settings means likely won’t go.  Typically there would be more settings than what could typically go.
Rule 166 gives the authority to judge to give Docket Control Orders contrary to other rules.
Scheduling the trial:
Theoretically a case can be set for trial either the party by motion, or the court or by agreement.  In practice it is usually the attorney’s task to set for trial
                -Local rules exist pursuant to TRCP 3a and Gov C 65.011  Local rules also usually state consequences for failing to set.  In Sabine and San Agustine Counties, the cts hold a docket call a day prior to the opening day of a term for the express purpose of setting trial.  Requests can be made by mail or telephone.
[b]            Consequences of Failure to Set Case for Trial [DWOP] ROL:  A Ps failure to act with diligence in setting case for trial may result in DWOP. TRCP 165a and also Veterans’ Land Bd. v Williams.
[c]            Notice of Setting for Trial
-not less than 45 days notice to opposing TRCP 245. Mansfield State Bank v Cohn. D received proper notice when he received copy of request setting for a certain date?).
ROL: Failure to notify, pursuant to 245 or local rule, is cause for setting aside a judgment against the non-notified and non-appearing party and for granting a new trial.
ROL: Clerk must give notice of a trial setting to a nonresident atty on written request.  TRCP 246. 
[d]            Expedited Trial Settings
100k or less. On any party’s request the trial court must set a case for trial wi 90 days after the Level 1 discovery (govd by 190.2b1) period has ended. 
[e]            Preferential Settings
Specific causes 23.101; general causes 23.102.
[2]            Announcements at Docket Calls
[a]            Generally
-Once set for trial, parties must usually attend docket call on Thursday or Friday before the week of the trial setting. “Sounding of the docket.” Not universal practice. Ready or not ready for trial. Consequences vary for failing to answer.  May be removed if P fails to answer; may be equated as ready; may be tried or passed at discretion of party who does answer.
[b]            Consequences of Failure to Announce [off docket] Approaches vary. May be taken off docket if P fails to announce. May be set for trial if D fails to announce. May be assumed that parties are ready for trial.
[3]            Dismissals for Want of Prosecution
Rule 3a Local Rules control as long as not inconsistent with TRCP and they are published (come effective 30 days after publication). Rule 8 On the occasion of a party's first appearance through counsel, the attorney whose signature first appears on the initial pleadings for any party shall be the attorney in charge, unless another attorney is specifically designated therein. Thereafter, until such designation is changed by written notice to the court and all other parties in accordance with Rule 21a, said attorney in charge shall be responsible for the suit as to such party. All communications from the court or other counsel with respect to a suit shall be sent to the attorney in charge
Rule 165a: DWOP rules- can be dismissed for failure to appear at any hearing of which party had notice or for not prosecuting the case wi standards of timelines set by SC [administrative rules say 18 months for jury trials and 12 months for non-jury]; motion for reinstatement: a court shall reinstate if not intentional, but was due to mistake
                                                Villarreal v. San Antonio Truck & Equipment-notice and opportunity to be heard
DWOP-Outlying case Villarreal v San Antonio.  DWOP.  The logical, literal equivalent of the wording suggested that an announcement at the hearing would not result in a DWOP. He announced and was DWOPd anyway. 
ROL: Cts authority to dismiss stems from 165a and inherent powers (Veterans land bd).  Rule 165 A case may be dismissed for want of prosecution on failure of any party seeking affirmative relief to appear for any hearing or trial of which the party had notice. Notice of the court's intention to dismiss and the date and place of the dismissal hearing shall be sent by the clerk to each attorney of record….[court does have inherent authority to DWOP, but still require that a party have notice and right to be heard…split of authority regarding whether express notice of 165a or whether local rules can control notice requriements] Villareal: A party must be provided with notice and an opportunity to be heard before dismissing. In this case, failure of the court to notify the party of its intention to dismiss required remand.  [court does have inherent authority to DWOP, but still require that a party have notice and right to be heard…split of authority regarding whether express notice of 165a or whether local rules can control notice requirements]                                                 Notes and Questions
Note 1. A motion to reinstate 165a3 with hearing could have resulted in a holding that said the party had his due process fully afforded.  So the party probably benefitted by appealing immediately.  Same even if a party receives notice AFTER dismissal but wi time to file a motion to reinstate but fails to do so (waiver). Note 3. However in Lynda’s Boutique one sentence, “failure to appear wo excuse will result in DWOP or sanctions,” was adequate notice.
Note 2. 165a2 Any case not disposed of within time standards promulgated by the Supreme Court under its Administrative Rules may be placed on a dismissal docket.  Civil jury cases 18 months from appearance date (from shorter time of REQUIRED time to file answer or ACTUAL time of appearance). Rule 6 of Judicial Administrative Procedure.
                [Court can schedule a docket control order per the rules or can choose not to].
Note 5. Proving Failure to Notify: Motion for New Trial or Bill of Review may be a better remedy than appeal bc extrinsic evidence may be admitted, especially where a clerk need not affirmatively indicate in his file that he sent notice. [Can a party appeal from a failed Motion for New Trial]? You can try to prove lack of notice in motion to reinstate.  But you can also try a bill of review, where, if you prove something, you get a new case.  In Motion to reinstate or bill of review, you can introduce new evidence.  Statute for Motion to Reinstate (165a), says “shall” reinstate for lack of intention or conscious indifference and was a result of a mistake or accident and that a hearing “shall be scheduled”, whereas a motion for new trial requires good cause. Therefore, Motion to reinstate would likely be an easier win.  Then you can have a record to take to the appellate court.  Verification is I swear with someone empowered to take oath like a notary and the facts and may verify a particular part of a pleading but not all of the facts. Affidavit required to set forth facts in the affidavit and I swear they are true? 165 a3 gives thirty days from DWOP to file a. How do you compute time, do not count day of the event (DWOP), unless last day falls on Saturday, Sunday or legal holiday, then it gets pushed to the next day that is not.  Rule 306 a 4 requires notice by 1st class mail of any order that is appealable.  When the court disposes of a case, there is a window called plenary power to change its mind.  Rule 93 says certain pleadings verified.
ICMADW intentional or conscious indifference but was instead a mistake or accident.  Intentional means both deliberate and without adequate justification.
The class had not covered extending motions at the time this was covered, but 165a3 expressly makes a motion to reinstate just like an extending motion (which of course it should be since it would substantively change the judgment.).  The motion is overruled by operation of law seventy five days after judgment. Plenary power is still retained thirty days after that overruling.
                                                Smith v. Babcock & Wilcox Construction Co., Inc-Rule 165a3 Reinstatement of DWOP
Attorney in another trial did not come to court and filed a motion for continuance without verification.  Said that he was preferentially set elsewhere.  Movant thought that the trial judge would reconsider this.  The movant no-showed and did not contact the court.  Appeals court-failure to appear was not result of conscious indifference, therefore appeals court remanded for reinstatement.  Movant lied about preferrential setting and appeals court said this was grounds for sanctions but not DWOP.
But deliberate failure is different than conscious indifference, so where an atty deliberately failed to attend a hearing bc he was in another court, he may be entitled to reinstatement if he meets the other factors. Intentional means BOTH deliberate and without adequate justification. p 12 Smith v Babcock.  The operative standard is essentially the same for setting aside default judgments. Id. citing Craddock.
ROL: 165a3 The court shall reinstate the case upon finding after a hearing that the failure of the party or his attorney was not intentional or the result of conscious indifference but was due to an accident or mistake or that the failure has been otherwise reasonably explained. Intentional means BOTH deliberate and without adequate justification.  Thus where a party files a motion to reinstate wo verification, says that he is preferentially set elsewhere when he is not, Court may sanction him, but the party is entitled to reinstatement
                                                Notes and Questions
Note 3 A different approach: Some appellate courts have held that the conscious indifference standard (from Rule 165a3) only applies in the case of failing to appear at trial or a hearing [post answer default].  Under this approach, the standard if the case was dismissed for failure to prosecute with due diligence, the standard is whether the party prosecuted the action with diligence, rather than the conscious indifference standard. 
[In conflicting trial settings, look at local rules. Some local rules say that they will grant continuance if other setting is older]  
Note 4 Some motions (Motion to Reinstate) to be verified or accompanied by affidavit.  An affidavit is sworn to, but since Sept 1, 2011 an unsworn declaration can take the place of a sworn declaration.  This started by needs of prisoners who dont have access to notary.
[B]            Continuances
[1]            Continuance for Absence of Counsel: The Scheduling Dilemma
TRCP 247. Shall be tried when set, except if continued by agreement, for good cause or by motion AND NOTICE to other party.
These rules show different reasons for continuance.
[251 Continuance generally: No application for a continuance shall be heard before the defendant files his de

ed to show the expected testimony of the the client.
[4]            Legislative Continuance
Texas lege has created for itself a unique and usually mandatory ground for continuance TCPRC 30.0003, TRCP 254 and case law Waites v Sondock. When a party or atty for a party is to be in legislative session, constitutional convention etc. a court must generally allow a 30 day continuance.  However, Waites v Sondock abrogates this bc “a legislative continuance is mandatory except in those cases in which the party opposing the continuance alleges that a substantial existing right will be defeated or abridged by delay.  In cases of this type, the trial court has a duty to conduct a hearing on the allegations.”  Other exceptions include when legislator was not employed 10 days before trial or in the case of a TRO. In Re Ford Motors-wo such a lege exception, a constitutional crisis could arise or a legislator might have to choose between representing a party or his constituents.  However, abrogating the legislative continuance can not occur where a right is in dispute and to be litigated.  It must be an existing right. 
                                                Practice Exercise #1
                Problem 2.  Check out the local rules for continuances on conflicts.  Some rules say that older cases will control.  Some say handle it at docket call or before. 
[5]            Expedited Actions
On any party’s request, the trial court must set an expedited action governed by TRCP 168 for trial within 90 days after the Level 1 discovery period ends. TRCP 190.2.b1. The court may continue the case twice but the continuances must not exceed a total of 60 days.
Rules enabling act (c 1938) allowed TX Supreme Ct? to make rules that are not substantive and do not enlarge the rights of the Courts.
Webpage in Harris County for local rules.  Dead week.  Each court can have its own rules.
Rules of judicial administration. About 14 rules that might apply.
Savings clause in Civil Practice and Remedy Code-very much affects procedure
McDonald and Carlson Treatise on Civil Procedure.  TXCP is the name of the database
Trial lawyers will sometimes bring in the appellate lawyer at differing points, sometimes at pleadings, sometimes at jury selection, sometimes at jury charge, sometimes at post-verdict. 
Merit based review of New Trial is now the law in Texas, whereas before it was non-reviewable.  They would sometimes grant it for error that even was not preserved, for example a lawyer with cancer.  In another case, the jury instructions were wrong and the trial judge did not catch it until later.  Now it is more technical.
Closed book final-Two objective parts and two other parts-Part a and b MC 70-80. Objectives Essay, 20 short essay question worth 4 points each.  Appendix and former bar questions.  Last one is what would you file or urge, a one line question and one line answer. Procedural mechanisms
Rule 245 is not that helpful.  Just says 45 days notice is required on the first setting.  Once a request for trial is made, parties are required to appear at docket call.  Some allow a call.  Others require a physical presence.  And some say rules say that the person who must appear must be the atty in charge w authority to settle.  Also time to notify of need to continuance.  Some don’t have a dockett call and assume you are ready.  Consequence of failure to call ready: if seeking affirmative relief you can be DWOPd.  can also be dwopd when not set in time period requried by SC guidelines. Also by inherent authority.  DWOPs are without prejudice (mean w out prejudice to P to file a new law suit). What about limitations? are they tolled? no.  165a liberal rule to reinstate, shall gran motion to reinstate unless done from conscious indifference.  Must be greater than negligence. 
Only the first setting requries 45 days, the second setting just requries reasonable notice. Source?
Can ask for preferential setting. and there is some statutory authority.  and even local rules for  complex settings.  This goes at the front of the dockett. 
Trial setting:
Harris County no longer has docket calls. Look at the local rules bc many other counties still have docket call.  FOr the court to assess the readiness of the parties. Some require the atty in charge with authority to settle.
[A]           The Right to a Jury Trial in Texas [Texas has a very expansive right to a jury trial (not pretrial)]                
State of Texas v. Credit Bureau of Laredo, Inc