Evolution of Texas Procedure

                                                           from 1836 to 2000


                                                 Professor William V. Dorsaneo, III


1.         Introduction.


As we approach the year 2000, Texas lawyers and judges will be using an entirely new rulebook.  In many ways, this codification represents the first comprehensive effort to reorganize and reform Texas procedural law since the first official recodification in 1879.  Many have contributed to growth and development of Texas procedural law which has been influenced by the ideas of indigenous procedural reformers and others from across the country.  An enormous debt is owed the leading legal citizens who have led the way.  In a small way this paper attempts to pay that debt.


As this paper explains, the path of procedural reform has historical roots that can be traced to the Republic.  Modern methods of dispute resolution by adjudication have evolved from that early period on a continuing basis.  Read on for an historical overview of the rules' evolution and a description of the major attributes of the new procedural rules.


2.         Procedural Developments Before the Adoption of the Texas Rules of Civil Procedure


A.        The Texas Pleading System.


Approximately ten years before David Dudley Field's Code was adopted in New York, the Republic of Texas passed legislation at the first Congress which rejected the common law system of pleading as well as the traditional common law approach to procedure and remedies that involved separate courts of law and equity.1  Following the pattern established by the civil law before independence was declared, formulary pleadings of the type required at common law were not required in Texas courts.2  On December 22, 1836, President Sam Houston signed the first Act of the Congress of the Republic which  provided that a petition would be satisfactory if it was a fair statement of the proceedings; if from the substance of the pleading it could be determined what the court was meant to act upon.3  Regardless of its derivation, it is clear that simple pleadings as distinguished from the common law pleading practice under the common law forms of action were authorized and required by Texas procedural law from the beginning.4  The Supreme Court of the Republic was proud of that fact and in 1844 the Court expressed the opinion that the Texas system (as it existed at that time) was far superior to the other systems.5


Unfortunately, by about 1846 through judicial decision, Texas procedural law evolved and required the pleader to state the "facts" which constituted the pleader's "cause of action."6  These troublesome terms of art which had found their way into drafts of procedural codes throughout the United States, began to influence Texas practice and to cause difficulty in Texas.  By December of 1877 when Judge, later Professor, Robert's rules were adopted as rules for the District Court in Texas, Rule 2 provided that "pleadings, with the exception of those presenting issues of law, must be a statement of facts in contradistinction to a statement of evidence, of legal conclusions and of arguments."7  Accordingly, by 1877 it would be fair to say that Texas embraced Code pleading principles that required an ever-increasing degree of technical proficiency.  By 1925, one commentator stated that Texas judicial decisions had developed a mass of technicalities that confounded practitioners.8


This same Rules of the District Court of 1877 also provided for the pleading of a "general exception" as it was called in Texas (the general demurrer),9 and a common law requirement that there be a due order of pleading by a defendant as required by statute.10

Another serious flaw in the system concerned the concept of waiver of pleading defects and the absence of the procedural concept of trial by consent because pleading  defects could be raised for the first time after trial and judgment in a new trial motion.11  Indeed, as one writer has pointed out, and as a series of cases seemed to indicate, a complaint about the pleadings could be made for the first time on appeal because of a strict attitude about the importance of pleadings.12


As Professor, later Judge, Clark explained in an influential article in the Iowa Law Journal, the promulgation of sensible pleading rules is an important prerequisite to procedural reform and the development of modern procedural devices designed to facilitate dispute resolution on the merits.13  By the late 1930s, these problems with Texas pleading practice were well recognized and the movement for procedural change which was made manifest in 1938 as a result of the adoption of the Federal Rules of Civil Procedure had a definite impact on the drafters of the Texas Rules of Civil Procedure.14


B.        Forum Selection; Venue and Jurisdiction


The first Act of Congress of the Republic of Texas also contained relatively detailed provisions concerning venue in district courts.15  The Spanish Code, Las Siete Partidas, after which the Texas venue scheme was modeled, placed venue at the defendant's domicile, subject to several exceptions.16  In 1846, in the earliest days of Texas statehood, the First Legislature adopted an act (An Act to Regulate Proceedings in the District Courts, 1846) delineating the procedures that were to govern proceedings in the district courts.17  The very first section of the 1846 statute, basically recodifying its 1836 predecessor, contained provisions regarding venue and its framework:  a general rule followed by a listing of 11 exceptions.  This section set the approach that would be taken to venue for the many decades to come.  In 1879, as Professor Townes explains, A. . . the codifiers took up the whole subject, revised and combined all the acts, materially changed the language of a number of the sections, and added eleven other exceptions."18  In subsequent years, the basic statute was revised, amended, and several new subdivisions were added.  Although the number of exceptions increased to at least 34 in the venue statute itself (plus myriad other exceptions in particular cognate statutes), the basic approach to venue questions remained substantially the same until the adoption of Senate Bill No. 898 by the 68th Legislature during the closing days of the 68th legislative session, in May, 1983.


Under this venue scheme, the basic principle was that, in the absence of an exception, venue was fixed in the county of the defendant's "domicile."19  The manner in which a defendant sought to obtain a transfer of the action to another county was by filing a sworn plea of privilege, which was substantially revised by legislation in 1907 to require a transfer of venue to a proper county, rather than dismissal of the suit, thus requiring the plaintiff to refile and to contend with the defense of limitations.20  Ordinarily, the "privilege" asserted was the basic privilege of being sued in the county where the pleader resided.  The plea was also required to contain a formal allegation that "no exception to exclusive venue in the county of one's residence provided by law exists in said cause."21  In order to maintain venue of the action in the county of suit, the plaintiff was required to controvert the Plea of Privilege by filing a Controverting Plea, under oath, setting out specifically the grounds relied upon to confer venue of the cause on the court where the action was pending.22  When the Plea of Privilege was controverted, the venue issues were determined by a trial of the venue facts, with the general rule being that the plaintiff had to establish, by a preponderance of the evidence, the application of one or more of the exceptions relied upon.23  It was frequently necessary for the plaintiff to prove a cause of action as one of the venue facts.24  At the venue hearing, live testimony was required to establish the venue facts.  At the venue hearing, live testimony was required to establish the venue facts.  Affidavits were not a permissible substitute.25


In 1846, the First Legislature also enacted a procedural statute which recognized a plea to the jurisdiction.26  The First Legislature also enacted another statute which provided that "no judgment shall in any case be rendered against any defendant unless upon service, or acceptance, or waiver of process, or upon an appearance by the defendant, as prescribed in this chapter, except where otherwise expressly provided by law."27  Under these provisions, Texas courts apparently did allow nonresidents to appear specially to challenge the exercise of in personam jurisdiction.28 


Probably as a result of the Civil War, known in the South as the War Between the States, the legal landscape was changed radically by the inclusion of "general appearance" provisions in the Revised Statutes of 1879.29  First, Article 1242 stated, "The filing of an answer constitutes an appearance of the defendant so as to dispense with the necessity for the issuance or service citation upon him."30  Second, Article 1243 provided that if service were quashed on motion, the defendant was deemed to have entered his appearance at the next term of court.31  Third, Article 1244 added that if the judgment was reversed on appeal for want of service or defects in service, the defendant was deemed to have entered his appearance to the term of the trial court where he filed the mandate."32


In 1889, these statutory provisions were interpreted by the Texas Supreme Court to mean that every appearance, even one made specially by a nonresident to challenge the exercise of jurisdiction, constituted a general appearance.  In York v. State,33 the State of Texas brought suit against York, a resident of the State of Missouri, to recover on a lease contract.  York was served in Missouri.  York appeared in the Texas court and made what he thought was a "special appearance" for the purpose of contesting personal jurisdiction.  The court overruled his plea.  When the case came to trial, York appeared, waived his demand for a jury, and relied solely on his plea to the jurisdiction for his defense.  Judgment was rendered against York.  On appeal, the Supreme Court of Texas held that articles 1242, 1243, and 1244 had abolished the special appearance.  The court further held that every defense pleading was part of the answer, and by statute the answer was a general appearance that dispensed with the necessity of valid service on the defendant.34  Hence, as a result of York's appearance the Texas trial court had jurisdiction and the judgment was affirmed.


Thereafter, York appealed his case to the Supreme Court of the United States, contending that the denial of a special appearance was a denial of due process under the Constitution's fourteenth amendment.  Somewhat surprisingly, the Supreme Court affirmed the judgment holding that "the state has full power over remedies and procedures in its own courts, and can make any order it pleases in respect thereto provided that substance of right is secured without unreasonable burden to parties and litigants.35  As Professor E. Wayne Thode has explained, in many quarters, the Texas Supreme Court's decision was considered "the ultimate in jurisdictional provincialism until it was eliminated in 1962.36

C.        Discovery and Pretrial Practice


During the Republican period of Texas history, in 1837, statutes were enacted authorizing the taking of depositions.37  But these enactments concerned depositions on written questions, not oral depositions.  Perhaps more significantly, these depositions were not discovery depositions, but were used to reduce testimony to a tangible form, for later use in trial.  The modern concept of discovery relevance as distinguished from trial relevance did not exist.38  The scope of discovery was tied to the issues made by the pleadings.  In 1846, the first Practice Act contained an "Evidence" section which carried the same idea forward for written depositions or depositions on written questions.39  The early form of written deposition was not thought of as a discovery device; it was a means to perpetuate admissible  testimony.  The purpose of the procedural device was simply different from modern deposition practice.  By 1907, the oral deposition became a part of Texas practice but when it did, its scope was confined in the same way as the scope of discovery had been confined for written depositions.40


In summary, before the adoption of the Texas Rules of Civil Procedure, there was no concept of discovery in the modern sense.  There were no interrogatories to parties of the type provided for under the predecessor federal rules or of the type we have now.41  There were no workable provisions to compel the production of documentary evidence prior to trial,42 no provisions to compel a party to submit to a mental or physical examination even if the party's condition was in controversy,43 and no requests for admission.44  Basically the only type of discovery was the deposition type of discovery designed only to perpetrate admissible testimony, which was not discovery in the modern sense at all.


Prior to 1941, pre-trial practice was extremely limited in all other respects.  There was no pre-trial conference rule.  There was no pre-trial conference practice of a recognized and regularized character from county to county and, of course, there was no summary judgment practice at all.  Professor Stayton has described Texas lawyers' attitude about summary judgment in 1941 as being one by which the lawyers thought summary judgment amounted to some sort of "snap" judgment, rather than a reasoned process.45


D.        The Trial Process.

Although formal discovery and pretrial practice was largely undeveloped before the adoption of the Texas Rules of Civil Procedure in 1940, Texas trial practice and particularly the way in which the jury was charged by the trial judge had already undergone a substantial developmental process prior to 1940.


The earliest Texas practice recognized the use of a special verdict in the form of narrative findings by the jury similar to the findings of fact made in bench trials.46  From 1846 to 1913, both the general charge and special charges and verdicts were authorized.  In the general charge, the judge stated the applicable law and it was "the province and duty of the jury to apply the facts, permitted to go before them under the rulings of the court, to the law as given them in the charge. . ., and directly and concretely decide by their verdict who shall prevail in the suit."47  Due to its inherent technicalities, the general charge was viewed as the source of numerous reversals.48  If any theory in a general charge was insupportable factually, legally, or procedurally, the entire case was reversed, even though the evidence would support one or more of the defective theories.49


By the end of the nineteenth century, due to legislative enactments and court interpretation, submission of cases by special interrogatories became mandatory on the request of the party.50  One of the principal early obstacles to the use of special issues was the rule that a verdict had to encompass all of the elements of the claim.51  Even undisputed facts had to be found by the jury because the trial court was statutorily precluded from rendering judgment if all facts raised by the pleadings were not found, even if none of the evidence presented raised a fact issue.  In 1897, the Texas Supreme Court criticized this dangerous aspect of special verdict practice.  In Silliman v. Gano,52 Chief Justice Gaines noted that the requirement that the special verdict include all findings necessary to support a judgment was too stringent.53  In answer to this criticism, the Texas Legislature passed legislation mandating that Aan issue not submitted and not requested by a party . . . shall be deemed as found by the court in such manner as to support the judgment."54


In 1913, the Texas Legislature enacted the Special Issues Act,55 the predecessor of what is presently Rule 277 of the Texas Rules of Civil Procedure.  It is commonly accepted that the legislation was enacted to provide an escape from a general charge practice that had become unmanageable because of "a gradual accumulation of instructions considered helpful to juries."56  The new procedures mandated by the Special Issues Act required the use of special issues.  The statute included language requiring that "special issues shall be submitted distinctly and separately, and without being intermingled with each other, so that each issue may be answered by the jury "separately."57  This "distinctly and separately" requirement introduced a "system of fractionalization of special issues far beyond that employed in any other jurisdiction in the common-law world."58


In Fox v. Dallas Hotel Co.59 the Texas Supreme Court mandated the submission of each issue "distinctly and separately, avoiding all intermingling" in negligence cases.60  Alexander Fox died as a result of injuries he sustained while trying to operate a defective elevator.  Although many specific acts of negligence had been alleged, the court submitted the following single question concerning the decedent's contributory negligence:


Do you find from a preponderance of the evidence that Alexander Fox was guilty of contributory negligence in his conduct in, around, or at the elevator,  or the shaft thereof, prior to or about the time he was injured?61


The Texas Supreme Court rejected the trial court's submission of contributory negligence in broad-form, construing former Article 1984a as requiring that each separate factual theory be the subject of a separate question having a separate answer.62  After Fox, the courts strictly enforced the requirement that issues be submitted "separately and distinctly" in negligence cases.


The Special Issues Act, enacted in 1913, also permitted "such explanations and definitions of legal terms as shall be necessary to enable the jury to properly pass upon and render a verdict on such issues."63  This principle of necessity was applied rigorously in an apparent effort to avoid complex jury charges.64  Accordingly, after the adoption of the Special Issues Act,65 hostility to the general charge historically meant a limited role for definitions and instructions.  Indeed, before the adoption of the Texas Rules of Civil Procedure, the use of instructions, as distinguished from definitions of legal terms, was prohibited.  The most that could be done was to define legal and technical terms used in the charge.66


3.         Rules Enabling Act


In 1939, the Legislature passed the Rules of Practice Act relinquishing to the Supreme Court of Texas full authority to make procedural rules.67  On January 10, 1940, the Court appointed a 21-member committee to assist the court in carrying out and effectuating its rule making responsibilities.68  Under the leadership of Professor Roy McDonald of Southern Methodist University, Professor Robert Stayton of the University of Texas, and Chief Justice James Alexander, the original Supreme Court Advisory Committee ("SCAC"), devised the original Texas Rules of Civil Procedure.




4.         New Rules of 1941


A.        Sources of Texas Rules of Civil Procedure


After conducting a series of meetings during 1940,69 the Supreme Court Advisory Committee proposed 820 rules taken almost entirely from the existing procedural statutes which they repealed, with a few being based on the new Federal Rules of Civil Procedure.  The procedural portions of the Revised Civil Statutes of 1925 were extricated and placed in the proposed rules in an order devised by Professor McDonald.  The proposed rules embraced a modified version of the 1937 Federal rules to deal with complex problems of permissive and compulsory joinder of parties and claims as well as the federal approach to paper discovery.70  Parts of federal rules 8 and 15 were also adopted.


B.        The Adoption of Procedural Rules


After making some significant  modifications, particularly with respect to the rules concerning the trial court's charge to the jury, the Court adopted the new Rules of Civil Procedure by court order dated October, 1940,  to be effective September 1, 1941.  As originally promulgated, the Texas Rules of Civil Procedure consisted of approximately 822 separate rules divided into eight parts:


I.          General Rules

II.        Rules of Practice in District and County Courts

III.       Rules of Procedure for the Courts of Civil Appeals

IV.       Rules of Practice for the Supreme Court

V.        Rules of Practice in Justice Courts

VI.       Rules Relating to Ancillary Proceedings

VII.     Rules Relating to Special Proceedings

VIII.    Closing Rules


Most of the original Texas Rules of Civil Procedure are one sentence or one paragraph items with relatively uninformative titles.  This is in contrast with the current federal rules of civil procedure and with the Texas rules that were based on the 1937 version of the federal rules, which are longer rules having titled subparts.  Probably, the original drafters thought it wise not to change the predecessor rules and statutes too much in 1939-1940, because of a presumed familiarity with them by the bench and bar.


C.  The Pleading System


Under prior Texas practice, as reflected in Rule 2 of Justice Robert's Rules of 1877, the pleader was required to plead "facts" constituting a "cause of action."71  The federal approach, embedded in Federal Rule 8 in the 1937 version of the federal rules, required a concise statement of a claim and the words "facts" and "cause of action" were eliminated because they involved a lot of technical rigamarole.72  The federal drafters thought it better to abandon traditional terminology rather than to try to redefine the terms.  Professor McDonald advocated that the federal approach be adopted, not in so many words, but essentially.  He recommended that the basic Texas pleading rule, the lineal descendant of the 1877 Rule, be modified in much the same manner as Federal Rule 8.73  But at the last meeting of the Advisory Committee in September of 1940, the language used in the first draft was changed such that instead of requiring the pleader to plead a ground of recovery sufficient to give fair notice of the claim, the pleader was still required to plead a cause of action.74  This backward step which was opposed by McDonald, among others, was justified in several ways, but the primary justification involved a perceived need to preserve the relationship between the issues set forth in the pleadings and the Texas "special issue" jury charge.75  In a law review article on the subject, Professor Stayton suggested that to depart from specific pleading too much would increase the difficulty being encountered in the submission of special issues.76  Whatever was intended, the failure to deemphasize the role of pleadings in fact, contributed to the perpetuation of complex special issue practice.  Professor Hodges' influential text on special issue practice as it existed before the 1973 amendments to the Texas Rules of Civil Procedure points out that pleadings had always been a blueprint for the charge.77  Technical pleadings made for technical jury charges and that is the way things remained for quite some time.78  In addition, because pleadings were a blueprint for the litigation generally, technical pleadings made the scope of discovery more restrictive.  Pleadings rules that were more restrictive than they had to be were matched by discovery rules that tracked the pleadings and that made discovery more restrictive.


More significantly, the Supreme Court Advisory Committee recommended to the Texas Supreme Court that it eliminate the general demurrer, while retaining special exception practice.79  The Committee also developed a waiver of pleading defects rule80 under the guidance of then Associate Justice James Alexander of the Waco Court of Appeals, who shortly thereafter became Chief Justice of the Texas Supreme Court.  When this rule was adopted, the traditional problem of errors being raised after verdict and judgment was virtually eliminated. 


D.        Discovery and Pretrial Practice


Several federal rules concerning pretrial discovery were adopted by the Texas Supreme Court.  The federal rule concerning production of documents was recommended for adoption.81  The federal request for admission rule was also recommended for adoption.82  A physical and mental examination rule was recommended and adopted but it was repealed before it ever went into effect, and did not find its way into the Texas rulebook until substantially later.83  The provisions of Federal Rule 37 involving sanctions were used to a certain extent to draft a Texas sanction rule,84 but the old deposition practice was retained.85  It was thought by some, including some very knowledgeable persons, that the Texas prior deposition practice was comparable to the federal deposition practice embedded in the federal rules, which of course it was not.86


The main problem with the 1941 discovery rules, as with the pleading rules, is that they moved too timidly toward modern concepts of pretrial practice.  The scope of discovery was still essentially restricted to the issues made by the pleadings as under the prior Texas deposition practice.87  Moreover, the experience of Texas lawyers with the prior Texas deposition practice made it difficult for the lawyers to see that the borrowed Federal Rule  34,88 which had a slightly broader scope, had the scope which it had at the federal level.89


With respect to the balance of pre-trial procedure, a pre-trial rule like Federal Rule 1690 was adopted in 1940, but it was left to the discretion of the local judges as to whether they would conduct pre-trial conferences.91  It is fair to say that, as a general rule, until quite recently pre-trial conferences did not happen, except perhaps for the purpose of ruling on special exceptions and pending motions.  Not surprisingly, a summary judgment (snap judgment) rule was not adopted in 1940.




E.         The Jury Charge


The Supreme Court Advisory Committee also recommended a serious and substantial revision of the procedural rules concerning the court's charge to the jury.  A review of the memoranda exchanged by the members of the Supreme Court Advisory Committee at the time the original meetings occurred in 1940 indicates that A. . .  probably no subject was more thoroughly studied, considered or debated by the Committee as a whole and the Sub-committee drafting this portion of the report concerning the jury charge rules, than the change to the jury.92


These documents and the rules recommended to the Court for adoption as well as the rules actually promulgated demonstrate dissatisfaction with the requirement of separate and distinct submission of factual theories and the separate submission of rebuttal defenses, such as unavoidable accident and sole proximate cause, in question form.93


During 1939 and 1940, the principal jury charge rules, Rules 277, 278, and 279 were drafted, revised in part and repealed in part before they became effective.  As originally promulgated, Rule 277 contained the following language which authorized a substantial departure from separate and distinct submission:


The court may submit several issues disjunctively in the same question where an affirmative finding on either of such issues would be sufficient as an element for a basis of recovery or of defense.  For example, the court may inquire in one question whether the defendant has committed any one of several acts of negligence.  Alleged acts of contributory negligence may likewise be grouped.94


In addition, prior to its repeal by the Court's order of March 31, 1941, original Rule 278, Failure to submit separately, read as follows:

The fact that an issue is multifarious or duplicitous shall not constitute ground for reversal except where it affirmatively appears from the record that the complaining party was prejudiced thereby.95


These provisions were deleted by the 1941 amendments before the original rules became effective.  Consequently, despite the substantial work of the Supreme Court Advisory Committee, the "distinct and separate" submission of factual theories mandated by the Special Issues Act of 1913 and the Texas Supreme Court's decision in Fox survived the adoption of the Texas Rules of Civil Procedure and controlled Texas charge practice in negligence cases until September 1, 1973.


As originally promulgated, Rule 277 also was intended to liberalize the use of instructions by permitting "such explanatory instructions and such definitions of legal terms as shall be necessary to enable the jury to properly pass upon and render a verdict on such issues."96  At that time, language was also added to provide that an explanatory instruction or definition did not constitute a general charge.97  As explained in the following excerpt from an unpublished memorandum prepared by Justice James McClendon, these changes were intended to allow trial judges more discretion in the use of instructions.


I am sure every member of the Committee recognized the inherent right of every litigant to have his theory of the case (where properly in issue factually) fairly presented to the jury in some proper and adequate manner.  In the respect in question this was amply taken care of by the provision in Rule 277. . . requiring the judge to give "explanatory instructions". . .


This change from "explanations" in Art. 2189 to "explanatory instructions" was intended to reach this objective.  "Explanatory instructions" is also carried into Rules 273, 274 and 276.


Still another objective is attained by this requirement of "Explanatory instructions."  It combines the special issue and general charge methods so as to preserve the advantages of both.  On the one hand it obviates subdividing the ultimate, controlling elements of grounds of recovery or defense into numerous component issues, thereby:  1) simplifying the questions required to be submitted; 2) avoiding confusion; and 3) obviating conflicting findings and double negatives.  On the other hand, it enables the court to charge the jury understandingly in regard to the findings they are called upon to make; and at the same time the value of the special issue method in requiring specific findings upon the ultimate, controlling, controverted factual issues in the case is preserved.  The special issue method, when properly administered, is generally conceded to be the best adapted to obtaining actual fact finding instrumentality only.  The rule protested combined with the requirement for "explanatory instructions" will, it is submitted, greatly improve the administration of the special issue method in this State, preserving, at the same time, every right of the litigant to a fair submission of the case.


Nevertheless, continuing hostility to the "general charge" remained a formidable obstacle to the achievement of these goals.98  Although Justice McClendon viewed the change from "explanations" to "explanatory instructions" as a way to avoid the confusing complexity then existing in the fragmented Texas "special issue" system by combining a broader form of special issue as authorized in the original versions of Rules 277 and 278, with useful explanatory instructions, this view was not shared by all of his contemporaries.99  Ultimately, the change had no significant impact on the practice.  Despite the substitution of the words "explanatory instructions" for "explanations," the 1941 version of Rule 277 permitted them only when they were "necessary to enable the jury to render a verdict."100


With the adoption of the Anew rules" Texas lawyers and judges were provided with a fairly well organized, semi-modernized half-way house in 1941, but the reins had been given to the right people -- to the Supreme Court of Texas -- and that provided Texans an opportunity to move forward.



5.         Amendments of 1941 Rules Before Recodification

After September 1, 1941, the Rules of Civil Procedure have been amended numerous times. Most notably, the rules concerning pretrial discovery, venue practice, the jury charge, and findings of fact in bench trials have been rewritten; the rules concerning the need for and the procedural mechanisms for serving papers and notices on other parties or their counsel have been changed; the rules concerning postjudgment motions and the duration and extent of the trial court's plenary power have been substantially revised; new rules have been adopted recognizing new procedural mechanisms, i.e. special appearances, summary judgments, mental and physical examinations; and a large number of rules have been repealed for a variety of reasons.  Nonetheless, despite all of this activity, many of the current rules are substantially verbatim renditions of the parts of the Revised Civil Statutes of 1925 that were deemed procedural and, therefore, appropriate for inclusion in the rules of civil procedure by the Texas Supreme Court and the original rules committee.


A.        Pleadings


After 1941, some technical changes were made in specific pleading rules.101  More significantly, however, since 1941 the Texas Supreme Court in a series of cases liberalized the interpretation of the basic pleading rules so that trial courts are required to interpret a party's pleadings in light of the pleader's intendments rather than against what the pleader, being a drafter, intended.102  In addition, the variance concept has been pared down to the point where variances are not even identifiable unless they are wide variances -- prejudicial departures from the pleadings.103



B.        Venue and Jurisdiction


1.         Adoption of Special Appearance Rule


Almost a century after the Civil War, by amendment of the rules of procedure nonresidents again became authorized to make special appearances in strict compliance with Civil Procedure Rule 120a.104  Prior to the adoption of Civil Procedure Rule 120a in 1962, a non-resident defendant who appeared in a Texas judicial proceeding for the purpose of challenging the court's jurisdiction was deemed to have consented to its jurisdiction by making an appearance.105  This result occurred even when the non-resident was not otherwise amenable to process.106  Although an amicus curiae practice developed under which a local attorney exercised the pretense of being a true bystander prior to 1962, by the 1960s even this subterfuge had become unavailable.107  Professor Thode has suggested that the defendant appeared in the majority of the cases and contested on the merits rather than suffer a default judgment.  Under this analysis, Texas attorneys representing defendants were undoubtedly employed by non-residents to contest more cases on merits than had been the experience of defendants' attorneys in other states.108 


2.         Changes in Venue Practice


During the final days of the 68th legislative session in 1983, the Texas Legislature adopted an amended version of Article 1995, Venue (now superseded by Chapter 15 of the Civil Practice and Remedies Code), and repealed another statute (R.C.S. Art. 2008) which granted an interlocutory appeal of venue orders before final judgment.  Shortly thereafter, the Texas Supreme Court promulgated new procedural rules to set forth the procedural application of the new venue law.109  These complementary developments marked a major departure from prior Texas venue practice which had been criticized on numerous occasions by numerous jurists and commentators.110


Virtually all aspects of the pre-September 1, 1983 procedures were modified by the amendment of Article 1995, subsequently codified in Chapter 15 of the Civil Practice and Remedies Code, and the statute's companion procedural rules.  A motion to transfer venue replaced the former plea of privilege.  Under the revised practice the basis for transfer (other than on grounds concerning inability to obtain a fair trial) was that venue was not proper in the county of suit and was proper in the county to which transfer is sought (or that venue was mandatory in a particular county, despite the fact that venue is proper where the action was filed); no response was necessary; venue was to be determined on the basis of the pleadings and affidavits (including discovery products), not live testimony; assuming the defendant does not establish the applicability of a mandatory exception justifying transfer, all plaintiff must do to maintain venue in the county where suit is pending is to make out a prima facie showing that either the "General Rule" or an exception applies; and interlocutory appeals were prohibited.


In August 1995, the 74th Texas Legislature again made wholesale revisions in the general venue statute.111  The 1995 amendments to Chapter 15 of the Civil Practice and Remedies Code generally restrict the venue choices that were made available to plaintiffs by the 1983 amendments.  The amendments changed the general venue rule by limiting venue choices available to claimants in actions against corporations, unincorporated associations and partnerships, and by providing for a venue transfer on the defendant's motion from a county of proper venue to another county for "the convenience of the parties and witnesses and in the interest of justice."  C.P.R.C. ' 15.002(b).  The amendments also require each plaintiff to establish proper venue, independently of any other plaintiff, and provide special rules for intervening plaintiffs.  C.P.R.C. ' 15.003.  The amendments also make a number of adjustments to the mandatory venue exceptions and to the permissive venue exceptions contained in the general venue statute.  As a result of these statutory amendments, it again became necessary to revise the venue rules contained in the Texas Rules of Civil Procedure.112


C.        Discovery Practice


In the discovery context, there has been continuing controversy and development.  The discovery rules were amended significantly on a number of occasions.  The first major changes were made in 1957, during Judge Robert W. Calvert's tenure on the court as the rules member of the court.  The scope of discovery was changed in 1957 such that, in the language of the 1957 rule, the general scope was extended from the issues made out by the pleadings to matters "relevant to the subject matter" involved in the action.113  More significantly, as in federal practice, the procedural rules were amended such that it no longer mattered that the information was not admissible at trial, as long as it was "reasonably calculated" to lead to the discovery of admissible information.114


But not all of the 1957 amendments were beneficial.  At the request of the Texas Supreme Court, in 1940 Professor McDonald had prepared a work product proviso that was included in the original production of documents rule that was promulgated in 1940.115  This proviso was prepared before the Supreme Court's landmark decision in Hickman v. Taylor116 and did not use the term "work product" or the more modern and comprehensive term "trial preparation materials."117  It exempted from discovery post-occurrence party communications involving the transaction or occurrence that gave rise to the claim if the communications were of a certain type.  In 1957, when  former Rule 186a was adopted, the older provision was incorporated in it, but additional language was added to the proviso exempting "information obtained in the course of an investigation of a claim or defense by a person employed to make such an investigation."118


By virtue of the 1957 amendments, the general scope of discovery was broadened but the provisos in Rules 167 and 186a exempted significant communications and information from discovery.  In fact, Rule 186a's revamped proviso may have expanded its coverage to the point that it vitiated a lot of what the broadened scope of discovery would have provided.  These restrictions were much more powerful than the Hickman work product doctrine because:  (1) the revamped proviso in Rule 186a protected all post-occurrence investigations (e.g., no Ain anticipation of litigation requirement"); (2) the investigative privilege was absolute; and (3) the investigative privilege protected the underlying facts in addition to the investigatory memoranda that memorialized the facts.119


In 1971, an exception was added to the proviso to permit discovery of information relating to the identity of any potential party or witness, thereby curing the specific Ladon and Hanlon problem in Tex. R. Civ. P. 167 and 186a.120  This was accomplished by adding the following language to the text of both rules: "information relating to the identity of any potential party or witness to the occurrence at issue may be obtained. . ."


Major Revisions were made in 1973 to Rules 167 and 186a.  Discovery was broadened to documents and things "reasonably calculated to lead to evidence material to any matter involved in the action."  Discovery was also broadened to allow discovery of the opinions and materials of a testifying expert.  The rules, however, contained exemptions for "witness statements," "work product," and the work of consulting experts.  The first time that the words "work product of an attorney" were inserted in the Texas discovery rules was in 1973!


In a series of decisions in the late 1970s the Supreme Court of Texas dealt with these provisions.121  By 1980, substantial preliminary changes were being discussed and in that year Rules 167 and 168 were rewritten.122  At that time, under the leadership of Luther H. Soules, III,123 who then was the Chairman of the Committee on the Administration of Justice of the State Bar of Texas, a discovery revision project was undertaken.  As a result of this project, which culminated in the 1984 amendments to the discovery rules, the rules were revamped entirely.


By virtue of the 1984 amendments, the following major modifications were made to the Texas discovery rules.  First, a general provisions rule like Federal Rule 26 was adopted in Texas.124  Into that rule was loaded basically all of the scope of discovery information and other generally applicable provisions concerning supplementation of discovery responses, protective orders and things of that type.  Second, a discovery abuse and sanctions rule was adopted into which most all of the information concerning sanctions was included in a manner similar to the federal model.125  The Texas rule was given more teeth than the companion federal rule.  Sanctions were toughened up.  For the first time, for example, it became permissible to impose sanctions upon attorneys, who advised misconduct.126


Third, the discovery rules were further modernized with respect to requests for admissions and interrogatories.127  Their scope was expanded.  Under the prior versions of the rules modeled on the 1937 version of the federal rules a party could only ask another party to admit facts.  Of course, this limitation led some lawyers to object by stating, AI object to that.  You are asking my client to admit a mixed question of law and fact."  This problem was corrected at the federal level several years earlier128 and finally by 1984 the problem was eliminated in Texas.


Fourth, the scope of discovery was expanded in other respects by the 1984 amendments.  Permissible discovery was expanded to include experts who would never testify, but who had prepared reports or developed opinions that formed the basis of the opinions of testifying experts.129  Also, the investigative information proviso that found its way into former Rule 186a in 1957 was repealed.130  As explained below, this seemingly simple modification increased the importance of both the work product exemption and its companion and predecessor exemption previously included in the original rules, the party communication exemption.131


A series of cases decided by the Texas Supreme Court between 1985 and 1990 construed the party communication exemption (from which the investigative information problem had been eliminated in 1984) narrowly such that the post-occurrence communication was not exempted from discovery unless the communication was clearly in anticipation of the lawsuit that was subsequently filed.  The language of the Texas Supreme Court's 1986 opinion in the Turbodyne case and in a number of other decisions embraced a "case specific" interpretation.132

In 1988 and 1990, Rule 166b(3)(d) was amended again to make the "party communication" exemption "case specific" in the language of the procedural rule.  Courts in Texas continued a strict approach in the interpretation of the exemption.  For example, in Flores v. Fourth Court of Appeals, the Court interpreted the language of Rule 166b(3)(d), as amended in 1988, to provide that a party communication is privileged if prepared Ain anticipation of the prosecution or defense of the claims made a part of the pending litigation" to require the party claiming the privilege to satisfy a two-pronged test.133  As explained in Flores, "the first prong requires an objective examination of the facts surrounding the investigation.  Consideration should be given to outward manifestations which indicate litigation is imminent.  The second prong utilizes a subjective approach.  Did the party opposing discovery have a good faith belief that litigation would ensue?  There cannot be good cause to believe a suit will be filed unless elements of both prongs are present.  Looking at the totality of the circumstances surrounding the investigation, the trial court must then determine if the investigation was done in anticipation of litigation."


Four years later, in National Tank Co. v. Brotherton, the Court modified the objective prong of Flores by eliminating the requirement that litigation be imminent.134  The Court stated that the objective prong is satisfied "whenever the circumstances surrounding the investigation would have indicated to a reasonable person that there was a substantial chance of litigation."135  That same year, the Court held that the party communication privilege does not extend to any lawsuit which does not involve claims that precipitated the communication because Rule 166b(3)(d) requires that for the party communication to be privileged, it must occur during or in anticipation of the particular suit.136


As a result of the repeal of the investigative information proviso and the adoption of a specific paragraph exempting the work product of an attorney from discovery, Texas courts began to examine the "work product" exemption as a separate exemption for the first time after 1984.  The Texas Supreme Court has referred to notes, lists and memoranda prepared by an attorney as "work product" in every sense of the term.137  Subsequent opinions suggested that only "opinion" work product was protected.138  In 1991, the Texas Supreme Court determined that the "work product" privilege is of "continuing duration" and not limited to the duration of the case in which or for which the work was done.139


Despite the fact that most of the interpretive problems in the 1984 discovery rules had been worked out by the early 1990's, a number of problems remained in the Texas rulebook.  These problems and the public perception about the misuse of discovery by counsel led the Texas Supreme Court to appoint two discovery task forces in 1991 to make suggestions for change and improvement.140


D.        Class Actions


The provisions of Civil Procedure Rule 42 were completely redrafted in 1977 as a reaction to efforts made by proponents of the Uniform Class Action Act to revivify class action practice after a series of judicial decisions had effectively closed the federal courthouse to class actions in diversity cases.141  Prior to the 1977 amendments to Rule 42, class action practice in Texas had been largely restricted to "true" class actions and "hybrid" actions involving disputed ownership interests in specific properties, despite the procedural rules' recognition of common question class actions which were given the pejorative title "spurious" class actions in the case law and legal literature.  In fact, as late as 1972, Justice Reavley suggested that the "spurious" class action had no place in Texas practice and should be eliminated from the original version of Civil Procedure Rule 42.142


Despite historical misgivings about class actions premised on the existence of common questions of law and fact, Procedure Rule 42 was amended in 1978 to embrace the essential procedural incidents of Rule 23 of the Federal Rules of Civil Procedure.  There has been a relatively small amount of judicial activity expended on class action cases until recently.

E.         Summary Judgment Practice


Nine years after the first Supreme Court Advisory Committee decided not to recommend a summary judgment rule, one modeled on the 1983 version of federal Rule 56 was adopted.143  Although the procedure was heralded as a means to reduce costs and to improve judicial economy by piercing unmeritious claims and untenable defenses,144 during most of the time that has elapsed since its adoption, trial and appellate courts have viewed summary judgment practice with hostility.  In 1962, the Texas Supreme Court expressed the view that summary judgment is harsh, drastic, extreme, and demands strict application and every indulgence for the non-movant.145  Thereafter, in a series of opinions, the high Court reversed summary judgments routinely by giving a restrictive interpretation of the basic summary judgment test146 and by taking a strict view of the sufficiency of the movant's summary judgment evidence.147  Not surprisingly, trial judges developed a reluctance to grant summary judgments.148  Consequently, Rule 166a was largely ineffective for the next three decades.


Civil Procedure Rule 166a was rewritten substantially effective January 1, 1978.  The principal amendments concerned both the basic test and the sufficiency of the movant's summary judgment evidence.  By virtue of the 1978 amendments, issues not expressly presented to the  trial court by written motion, answer or other response may not be considered on appeal as grounds for reversal.149  In addition, the amendments authorized summary judgment on the basis of the uncontradicted testimonial evidence of an interested witness or of an expert, when the evidence is probative and could have been readily controverted, but was not.150  By 1979, as reflected in the Texas Supreme Court's opinion in City of Houston v. Clear Creek Basin Authority,151 the procedural device was recognized as a helpful tool, rather than as an invasion of the trial process or some type of "snap" judgment.


The Texas Supreme Court amended the summary judgment rule effective September 1, 1997, to embrace the federal approach to motions that are based on challenges to a ground of recovery or defense on which the nonmovant would have the burden of proof at trial.  Formerly, in order for a defendant to be entitled to summary judgment, he or she was required, by competent proof, to disprove, as a matter of law, at least one of the essential elements of the plaintiff's cause of action152 or establish one or more affirmative defenses as a matter of law.153  By this amendment, the Texas Supreme Court is reversing the position taken in Casso v. Brand,154 rejecting the approach adopted by the United States Supreme Court in Celotex Corp. v. Catrett.155  In Celotex, Chief Justice Rehnquist wrote that A. . . the plain language of Federal Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial."156  In Casso v. Brand, the Texas Supreme Court held that A. . . we never shift the burden of proof to the non-movant unless the movant has "established his entitlement to a summary judgment on the issues expressly presented to the trial court by conclusively proving all essential elements of his cause of action. . ."157


As a result of the amendment, a defendant may obtain a summary judgment without conclusively negating an element of the plaintiff's cause of action.158

A comment to the amended rule states that "the motion must be specific in challenging the evidentiary support for an element of a claim or defense; paragraph (i) does not authorize conclusory motions or general no-evidence challenges to an opponent's case."


The Court's official comment also states that "to defeat a motion made under paragraph(i), the respondent is not required to marshal its proof; its response need only point our evidence that raises a fact issue on the challenged elements.  The existing rules continue to govern the general requirements of summary judgment practice."159 160

Although proposals for amending Civil Procedure Rule 166a to embrace the federal approach have been pending before the Texas Supreme Court for a number of years, the 1997 amendment's adoption was motivated by the filing of House Bill No. 95 "relating to summary judgments in civil actions" by Representative Joe M. Nixon of Houston, Texas.  Representative Nixon's bill (which was withdrawn due to the amendment) would have superseded Civil Procedure Rule 166a, if it had become law.161




Perhaps the most important aspect of the new provision is the "no evidence" standard.  The "no evidence" standard is a familiar part of Texas jurisprudence.  It has been applied in instructed verdict cases, cases involving objections to submission of vital fact issues and in connection with motions under Civil Procedure Rule 301 for judgment notwithstanding the verdict or in disregard of particular jury findings.162  Regardless of the context, Texas courts have followed the approach that in applying the "no evidence" standard of review the evidence is to be considered in its most favorable light in support of the nonmovant's position. 163 Thus, a "no evidence' challenge fails if some probative  testimonial or documentary evidence is identified, regardless of the number of witnesses or quantity of contrary evidence.  However, if only some weak circumstantial evidence is found the focus shifts to showing that the evidence is no more than a "scintilla" and has no probative value.164  The scintilla concept is summed up in the following excerpt from Kindred v. Con/Chem, Inc.165


When the evidence offered to prove a vital fact is so weak as to do no more than create a mere surmise or suspicion of its existence, the evidence is no more than a scintilla and, in legal effect, is no evidence.  Seideneck v. Cal Bayreuther Associates, 451 S.W.2d 752, 755 (Tex. 1970); Joske v. Irvin, 91 Tex. 574, 581-582, 44 S.W. 1059, 1062 (1898).  See Calvert, "No Evidence" and "Insufficient Evidence" Points of Error, 38 Tex. L. Rev. 361 (1960) and W. Dorsaneo, Texas Litigation Guide, Ch. 130, Motions for Judgment.  The test for application of this no evidence/scintilla rule is that if reasonable minds cannot differ from the conclusion that the evidence offered to support the existence of a vital fact lacks probative force, it will be held to be the legal equivalent of no evidence.  However, there is some evidence, more than a scintilla, if the evidence furnishes some reasonable basis for differing conclusions by reasonable minds as to the existence of the vital fact.


A true "no evidence" situation is not indicated if the clash between forms of evidence is direct testimony v. direct testimony, direct testimony v. reasonable inferences, opposing experts with varying degrees of qualification, defendant's witnesses outnumbering plaintiff's witnesses, and so on.  These situations pose only weight and credibility choices for the trier of fact.  Accordingly, in these situations summary judgment is clearly inappropriate.166


F.         The Jury Charge


The reform proposals that never became effective in 1941 resurfaced in a different for in  1973.  After sixty years, it became apparent that the Texas charge practice was overloaded with granulated issues.  The "distinctly and separately" requirement had developed into what Justice Jack Pope termed a "system of fractionalization of special issues far beyond that employed in any other jurisdiction in the common-law world.167  Effective September 1, 1973, Civil Procedure Rule 277 was amended to eliminate the former requirement that issues be submitted in separate and distinct form.  As a political compromise, however, trial courts were given discretion to submit jury questions in broad-form, combining elements and factual contentions or to submit separate questions with respect to each element and factual theory.  The 1973 amendments also eliminated the submission of "inferential rebuttal" defenses in question form and authorized the submission of "proper" explanatory instructions, rather than necessary ones.168

Following the 1973 amendments, the Texas Supreme Court made it clear that it preferred the use of broad-form questions.  For example, in his last opinion, Chief Justice Pope stated that since the 1973 amendments Abroad issues have been repeatedly approved by this court as the correct method for jury submission.169  In another landmark opinion, the Court instructed that Atrial courts are permitted, and even urged, to submit the controlling issues of a case in broad terms so as to simplify the jury's chore."170  The Court's preference for a simplified charge also extended to the use of definitions and instructions.171


Rule 277, was amended again, effective January 1, 1988 to provide that Abroad-form questions" "shall" be used "whenever feasible."172  After the 1988 amendments, the Texas Supreme Court continued to express its preference for broad-form submission by holding that, unless extraordinary circumstances exist, a court must submit issues broadly with appropriate definitions and instructions as requested.173


6.         Adoption and Unification of Rules of Civil and Criminal Evidence


Effective September 1, 1983, the Texas Supreme Court promulgated the Rules of Civil Evidence, replacing numerous statutory provisions.  The Court of Criminal Appeals has never had constitutional authority to make rules of procedure and did not have statutory authority until 1985, when the Legislature authorized the Court of Criminal Appeals to adopt rules of evidence and of posttrial, appellate, and review procedures in criminal cases.  The Court of Criminal Appeals adopted the Rules of Criminal Evidence in 1986.


In 1997, the Supreme Court and the Court of Criminal Appeals ordered the adoption of uniform rules to become effective  on March 1, 1998.174


7.         Adoption and Revision of Rules of Appellate Procedure


Effective September 1, 1986, the rules governing procedure on appeal were extracted from the Rules of Civil Procedure and promulgated as the Texas Rules of Appellate Procedure.  At that time, the appellate rules were substantially rewritten and reorganized.175  Thereafter, the Rules of Appellate Procedure were amended in 1990 and substantially rewritten 1997.




8.         1998 Recodification of Civil Procedure Rules.


A.        1998 Recodification of Civil Procedure Rules


1.The proposed structure is substantially less complicated and more in tune with modern procedural thinking on particular procedural subjects.


In June, 1991, the Texas Supreme Court appointed four task forces to study the Texas Rules of Civil Procedure.  These groups, which studied and reported on the discovery rules, discovery sanctions, the jury charge, and the desirability and the feasibility of Recodification of the Texas Rules of Civil Procedure, reported to the Court and to the SCAC.  From November 1993 through September 1997, the SCAC developed recommendations for an entirely new rulebook.  The proposed rulebook is organized as follows:


Section 1:       General Rules

Section 2: Commencement of Action; Service of Process, Pleadings, Motions, and Orders

Section 3:       Pleadings and Motions

Section 4:       Claims and Parties

Section 5:       Discovery

Section 6:Scheduling and Pretrial Conferences

Section 7:       Trial

A.Scheduling Cases for Trial; General Trial Rules

B.Jury Trial; Jury Selection

C.        The Jury Charge

D.        Jury Deliberations

E.         Nonjury Trials

Section 8:Judgments, Motions for Judgment, New Trials

Section 9:       Ancillary Proceedings

Section 10:     Special Proceedings

Section 11:Counsel, Courts, Clerks, Court Reporters, Court Records, and Court Costs

A.        Counsel

B.        Courts

C.        Clerks

D.        Court Reporters

E.         Court Records

F.         Court Costs

B.        The Need for Revision Of the Rules of Civil Procedure


1.The original organizational structure became outdated, and changes to the original rules impaired the structural utility of the original rulebook.


Many of the original civil procedure rules governing practice in district and county level courts are one sentence or one paragraph items with relatively uninformative titles. Incomplete treatment of important subjects is a problem in some areas. In others, the problem is separation of pertinent information concerning one topic into a number of rules that are not in reasonable proximity to one another. Because of this fragmentation of subjects into a large number of short rules, it is frequently difficult for lawyers and judges to see and appreciate the relationship between related matters. As a result, the current organization of the Rules results in needless complexity and uncertainty.


Furthermore, the original structure outlined above has been rendered substantially obsolete by subsequent Texas Supreme Court orders. As a result of the adoption of the Texas Rules of Appellate Procedure, Parts III and IV were completely repealed. The promulgation of the Rules of Appellate Procedure not only created a large gap in the Rules of Civil Procedure but also left the Rules with two separate sections of Ageneral rules"Cthe General Rules contained in Part I (Rules 1-14c) and the General Rules contained in the first section of Part II (Rules 15-21b).


2.Lack of change left some rules with awkward and outdated language.


Because the original rules were copied from the revised civil statutes of 1925, which were themselves copied from earlier codifications, they are poorly worded. Unlike each of the codes Arecodifying" the statutes that have been enacted in the past 25 years, the Rules, despite numerous amendments, have not been systematically restated in modern language or cleansed of duplicative, irrelevant, or otherwise ineffective language.


In addition, when the original rules were promulgated, although many of them were in fact taken from the then-existing federal rules,  a number of changes were made either organizationally or textually. For the most part, these changes were mistakes that should be reversed.

C.        Noteworthy Changes

Overall Organizational Structure. By far, the most significant change in the recodified Texas rules of civil procedure involves the basic organizational structure of the rulebook. Influenced in large measure by the overall organizational structure of the federal rules of civil procedure, the new Texas rulebook begins with a very brief set of General rules followed by a section concerning commencement of the action which also includes detailed information concerning service of process as well as the service above all pleadings, motions, other papers, and orders all in all parties to the action.  In section 3, the subject of pleadings and motions is covered.  Section 4 follows with detailed coverage of the permissive and compulsory joinder of claims and parties. Then Section 5 includes an entirely revamped set of discovery rules based largely on the work of the discovery task force and the discovery subcommittee of the Supreme Court advisory committee. A. separate and shorter section on pretrial practice is included in  Section 6 of the new rulebook. Unlike the federal rules of civil procedure, which ,as originally designed, treated pretrial practice as an extension of the pleading rules, the new Texas rulebook recognizes that pretrial practice should be given separate coverage prescribing the relationship between the rules governing the pleading process, joinder of claims and parties and the conduct of discovery during the pretrial phase of the litigation. Sections 7 governs the trial process including coverage of both jury and nonjury trials.  Section 8 covers judgments, motions for judgment, and new trial motions.  Section 9 deals with ancillary proceedings such as sequestration, garnishment,and attachment. Section 10 deals with special proceedings including forcible detainer actions, trespass to try title litigation, partition suits, among others.  The rulebook concludes with section 11, covering miscellaneous important provisions concerning Counsel, courts, clerks, court reporters, court records, and court costs.


The principal reason for shortening the section of the rulebook covering the subject of General rules is that the incorporation of a large number rules covering disparate subjects into a lengthy section is not helpful to the user of the rulebook By the same token, the addition of new section 11 provides a better mechanism for covering its individual subjects all in one place and at the end of the rulebook.


Finally, the new rulebook includes approximately 150 separate rules of civil procedure rather than the more than 800 rules that were originally included in the 1940s version of the Texas rules of civil procedure.


The following paragraphs in this article discuss the individual sections of the new Texas rules of civil procedure emphasizing significant changes.


General rules. As explained above, the new section is very brief.  It contains only two rules.  Rule 1 explains the objective and scope of the rules of civil procedure.  Rule 2 indicates how the Texas rules of civil procedure can be supplemented by local rules of court.  This new section replaces approximately 35 rules, covering a variety of different subjects that were contained in the true General rules sections of the former rulebook.  Also, as explained above, although some rules were eliminated as unnecessary, many were moved in new Section 11.


Service rules. Probably the most significant change in section 2 of the new rulebook involves the inclusion of detailed information concerning  service of process, including regular and published citations and the service and filing the pleadings and other papers not requiring the service of citation, in the same section of the rulebook.  Formerly, the latter subject was covered by two General rules separated from the rules covering the service of pleadings requiring the use of Citation by approximately 90 intervening rules. In addition,.  Because it no longer makes sense to coordinate the defendants' answer day with the call of the court's appearance docket , answer day for regular citations is changed from 10:00 a.m. on the Monday next following the expiration of twenty days after you are served to Athirty days after you were served."  this change should present no particular difficulty to defendants who file answers in accordance with the timing requirements of the former procedural rule, because 30 days after you were served is always more than the Monday next following the expiration of twenty days after you are served.  A similar modification was made in the rules concerning citation by publication. The new citation by publication rule not only requires publication "one time" for "at least twenty-eight (28) days," it must "command the parties to appear and answer at or before the expiration of 60 days from the date of issuance."



Pleading Rules.  The pleading system has been modified and  clarified in a number of significant ways. First, the relationship between the use of motions and pleadings is explained in Rule 20 which contains  a descriptive list of the pleadings allowed in Texas civil litigation or as well as an authorization for the use of separate pleas and motions containing applications to the court for an order. More significantly,  by indicating that  certain pleas may, at the option of the pleader be made in a responsive pleading or by a separate motion , Rule 25 explains the use of motion practice in the presentation of defenses in a manner that resembles but does not copy Rule 12 of the Federal Rules of Civil Procedure .


Technical requirements for pleadings are modernized and clarified. For example, the term Acomplaint" is used in lieu of Apetition."  In addition, instead of referring to  a response to aid defendants answer as a " supplemental petition," the responsive pleading is referred to simply as "a reply to an answer , including a reply to a counterclaim." However, the former practice of requiring a plaintiff to respond to defensive pleas contained in the defendant's answer has been retained. In other words, unlike federal practice, a plaintiff is required to expressly plead a matter in avoidance of an affirmative defense contained in the defendant's answer, even if the answer does not contain a counterclaim "denominated as such."


Undoubtedly, the most significant change in the revised pleading rules is the elimination of the former requirement that a claimant's pleading  state a " cause of action."  Under the revised procedural rules, claims for relief will be required to consist of "a short statement of the claims, stating the legal theories and describing in general the factual bases of the claims sufficient to give fair notice."  A more precise description of the proper level of factual detail is given in a Comment which states that "The factual circumstances supporting a claim may be described generally, but in sufficient detail so that the opposing party can determine from the pleading the circumstances sued upon.  The claimant is not required to allege specific acts or omissions giving rise to the claim for liability."  The comment also gives the following examples. "Plaintiff sues defendant for negligent operation of a motor vehicle," or "Plaintiff' sues defendant for negligence per se for violating section 544. 008 of the Transportation Code," or "Plaintiff seeks recovery of attorneys fees under Tex. Civ. Prac.  & Rem. Code, ch.38," or "Plaintiff was contributorily negligent, and defendant invokes the comparative responsibility provisions of chapters 33 of the Tex. Civ. Prac. & Rem. Code," or " Defendant asserts the statute of limitations, Tex. Civ. Prac . & Rem. Code."The comment also indicates that an example of specifying the maximum amount of damages claimed would be: "The maximum amount of all damages claimed is $100,000." Accordingly, the new method for pleading claims for relief has a strong resemblance to federal practice in accordance with rule 8 of the federal rules civil procedure and the federal forms promulgated by the Supreme Court in water to assist practitioners compliance with federal procedural requirements.  In other words, a half century after Professor McDonald's suggestions were rejected by the original Supreme Court advisory committee, they were embraced by the Texas Supreme Court.


A number of changes were also made in the leading rules that apply to defenses.  With respect to denial defenses, the general dial was retained, unless a specific denial is required by rule or an explicit procedural rule.  However, specific denials need not be verified. In addition, the specific denial provisions are reduced from 15 separate subdivisions to four separate categories.





--          Although the provisions of federal Rule 12 were considered helpful in some respects, the Advisory Committee specifically rejected suggestions for a adoption of  federal procedural devices calling for the dismissal love a complaint on the basis that it fails to state the claim upon which relief can be granted or requiring the pleader to make a more definite statement of pleaded allegations. Instead, under the revised procedural rules Texas special exception practice is retained, including the provision concerning the waiver of pleading defects originally drafted by Chief Justice Alexander in 1940.  However, unlike Chief Alexander's rule, under the revised rule waiver principles are made applicable to all parties, not only, as in the original rule, to "the party seeking reversal on such account."  In addition, the time for making an exception to the pleadings is corrected and set at a reasonable time before trial.


--The recodification also modifies the classification and description of affirmative defenses and their uses by claimants to reply to defenses contained in answers . The original provision was based upon subdivision  c of Rule 8 of the federal rules of civil procedure. As such, the examples love matters and avoidance given the end the original federal rule do not exactly match the classification above such defenses under Texas substantive wall.  Moreover, probably because the federal rules do not call for a reply to an answer that includes an affirmative defense in order to deny or to avoid that defense, no examples were given that apply particularly to claimants who are responding to answers . Thus, the new Texas provision modifies the original list of affirmative defenses in order to make it more meaningful to Texas practitioners.


Significant changes were also made in the procedural rule governing third-party practice. Specifically, the third party practice rule was modified to clarify when leave of court is required by a defendant.  Leave of court is not required to serve a third-party defendant if the third-party complaint is filed not later than ninety (90) days after the appearance day of the third-party plaintiff, as a defending party. But if a new plaintiff is added by amendment or intervention, the third-party plaintiff need not obtain leave to make service of a third-party complaint if it is filed not later than sixty (60) days after the amended complaint or intervention is served.


Additional changes in the leading rules were made to conform the rules of procedure to recent legislation. Sanctions for frivolous pleadings are left to chapter 10 of the civil practice and remedies code.  Finally, the procedural rules concerning venue practice were rewritten to conform them to the 1995 amendments to chapter 15 of the civil practice end remedies code.


Pretrial Practice. 


--    The dismissal for want of prosecution (DWOP) rule has also been  rewritten and simplified.  Dismissal  now requires a noticed hearing by first class mail. Additionally, reinstatement requires a verified motion filed within thirty days after the dismissal order is signed, unless the timetable is extended because of a lack of notice or knowledge of the order.


--    The default judgment rule is also rewritten and simplified.  The availability of interlocutory and final default judgments, the procedures for obtaining a default judgment and for assessing the amount of unliquidated damages as well as the method for setting defaults aside are described in one clear rule. In addition, the use of affidavits to prove unliquidated claims is specifically allowed.


Claims and Parties.  Other than reorganization, there are no major changes in the rules concerning claims and parties. However, a real party in interest rule similar to federal Rule 17 has been added, the class action rule is changed to make "common question" class actions (b)(3) actions rather than (b) (4) actions, as in other jurisdictions, and the intervention rule is expanded and clarified so that counsel can understand when intervention is appropriate given the nature of an intervenor's interest.

The separate trial rule has been redrafted to provide the bench and bar with more guidance concerning the conduct of bifurcated trials..



Discovery Rules.


--Undoubtedly, the most controversial part of the recodification concerns the rules of discovery practice. Although the general scope of discovery remains unchanged from the standard of relevance to be subject matter involved in the pending action  the scope of discovery for documents and tangible things is restricted to items relevant to the parties claims or defenses, except that "the court may order discovery of such materials that constitute or contain matters relevant to the subject matter of the action upon the motion of a party demonstrating that the likely benefits of such additional discovery outweigh the burden or expense of production, taking into account the needs of the case, the amount in controversy, the importance of the issues at stake in the litigation, and the importance of the proposed discovery in resolving the issues."


--    Significant changes were also made in the rules are concerning the privileged status of trial preparation materials.  For example, the former work product and party communication privileges have been unified. Additionally, the separate privileged status for witness statements has been eliminated. All the other hand, counsel's notes, and in  the vast majority of cases, trial counsel's file will be considered privileged without the need to make a claim of privilege.


--    Privileged information is protected by withholding the information when it would otherwise be provided in answering a discovery request or question and by notifying the opposing party that a claim of privilege is being made accordingly. At that point, the opposing party can obtain a description of the information that has been withheld in a form that is sufficient to test the claim of privilege in court.

All discovery must be completed in accordance with a "Litigation Control Plan" to correct wasteful overdiscovery. The plan varies both with respect to the extent of discovery permitted and the duration of the "discovery period" depending on whether the case is classified as a "Level 1" case, a "Level 2" case or a "Level 3" case.


--    The Standard Request for Disclosure is included in the revised discovery rule. A party may use this device to request disclosure of commonly discoverable information.  Such as the identity of potential parties and witnesses.


Prophylactic objections are outlawed; objections must be made only when there is a good faith factual and legal basis for the objection. Making privilege claims when there is, in fact, nothing to claim privilege over is prohibited.





--    The continuance rules are rewritten and clarified. 

--    The jury selection rules are changed in several significant respects: (1) jury shuffle rule is made applicable to all courts, not just larger counties; (2) admonitory instructions are revised and modernized based on report of Jury Charge Task Force and (3) specific procedures for Batson/Edmonson challenges are included in the peremptory challenge rule. 


Jury Charge.  The jury charge rules are rewritten and revised, particularly the preservation rule. 


--    Objections and Requests May be Combined.  Under the proposed rules and in keeping with the Court's recent approach to preservation issues, requests and objections do not need to be kept separate. As a practical matter, this will mean the current object/request approach to preservation will be merged into a one-step practice that incorporates the information the judge may need to become aware of the complaint of charge error and how to deal with it.


Objections are Required to Preserve Complaints. It is anticipated that the request/object practice in all of its forms will be replaced by an object only preservation practice that requires counsel to provide reasonable guidance to the court as part of the objection.  However, if counsel has previously made or contemporaneously makes a request that provides non-responsibility to make a request that provides"reasonable guidance" and may be sanctioned for refusing to do so in the face of a judicial request, but does not need to do so to preserve the complaint.  An objection suffices.


 Another potentially significant change in the proposed rules concerns disjunctive submission.  "The court may submit a question disjunctively when the evidence shows that only one of the matters inquired about necessarily exists.  A proper disjunctive question that submits a defensive theory as an alternative to a claimant's theory is not an impermissible inferential rebuttal question.  However, inferential rebuttal questions shall not be submitted."  These sentences are part of the legacy of special issue practice as it was conducted prior to September 1, 1973.  The second sentence could be construed to reverse the Texas Supreme Court's landmark decision in Lemos v. Montez, 7680 S.W.2d 798 (Tex. 1984).  This is not, however, how these puzzling words should be interpreted.


. Finally, the sentence recognizing that the trial court may predicate the damage question(s) upon affirmative findings of liability has been omitted from the proposed rules.  It appears that this deletion is not meant to change existing practice.  However, it can be expected that defense counsel will argue that damage questions may not be predicated when the practice will have the effect of advising the jury of the effect of their verdict on the court's judgment.  See generally Grieger v. Vega, 271 S.W.2d 85 (1954).


Judgments; Motions for Judgments; New Trials. 


--    The final judgment rule is made clearer and more user friendly. 


--    Motion practice "before and after judgment" is clearly set forth and reorganized to clarify the purpose of each motion. 


--    The "motion for judgment as a matter of law" concept replaces directed verdict and JNOV terminology. 


--    The use of motion to modify "after a judgment has been rendered" is authorized for all types of attacks on judgments. 


--    The use of motion for new trial is spelled out, including a much more complete list of the grounds for summary judgment.


--    The timetable requirements for motions before and after judgment are spelled out and when to use which type of posttrial motion is made explicit.


--    Additions include a general preservation of complaints rule and a rule explaining the concept of plenary power.


Counsel, Courts, etc.  Rules concerning counsel, courts, clerks, court reporters, court records, and costs are revised, modernized, and reorganized to make them easier to find and use.





Despite the fact that the current rules are workable, and notwithstanding the overall contributions of the fine lawyers and jurists who have worked for the improvement of the rules over the years, after more than 50 years of service, the rulebook needs and deserves this type of special attention. 




1                                              "The common law of England, as now practiced and understood, shall in its application to juries and to evidence, be followed and practiced by the courts of this Republic, so far as the same may not be inconsistent with this act, or any other law passed by this congress."  Gammel, The Laws of Texas 1822-1897, Vol. I, pp. 1216-1217; J.C. Hutcheson, The Spirit of the New Federal Rules, 3 DALLAS BAR SPEAKS 209, 215 (1938), -- explaining that neither the common law system of pleading nor the separation of law and equity was adopted.

2                                              The laws of Coahuila and Texas regarding pleadings limited the parties to two writings; a petition by the plaintiff, a contestation by the defendant, a replica by the plaintiff, and a duplica by the defendant.  In these pleadings, the parties were respectively allowed and required to set forth, in a plain and intelligible manner, the facts upon which they respectively relied to sustain their position before the court; in short, to state to the court the real truth of the matter in controversy, so far as they might be able.  J. Townes, TOWNES TEXAS PLEADING, p. 84 (2d ed. 1913).

3                                              "It shall be the duty of the plaintiff or his attorney, in taking out a writ or process, to file his petition with a full and clear statement of the names of the parties, whether plaintiff or defendant, with the causes of action and the nature of the relief he requests of the Court." Gammel, The Laws of Texas 1822-1897, Vol. I, p. 1261.  Subsequently in 1840, legislation enacted by the Fourth Congress provided "That the adoption of the common law shall not be construed to adopt the common law system of pleading, but the proceedings in all civil suits shall, as heretofore, be conducted by petition and answer . . . In every civil suit in which sufficient matter of substance may appear upon the petition, to enable the court to proceed upon the merits of the cause, and suit shall not abate for want of form."  Gammel, The Laws of Texas 1822-1897, Vol. II, pp. 262-263.

4                                              See Coles v. Kelsey, 2 Tex. 542 (1847) -- "Our system of bringing suits by petition bears no analogy to the common law practice, but there is more striking similarity in our forms to the English bill and answer in Chancery; so much so as to leave no doubt of their kindred origin.  They are both derived from the Roman law, out of which grew up the civil law.  Ours came to us through the laws of Spain;" see generally, J. McKnight, The Spanish Influence on the Texas Law of Civil Procedure, 38 Tex. L. Rev. 24, 26-31 (1959).

5                                              Hamilton v. Black, Dallam, 587 (1844).  "The object of our statutes on the subject of pleading is to simplify as much as possible, that branch of the proceedings in courts which by the ingenuity and learning of both common and civil lawyers and judges, has become so refined in its subtleties as to substitute, in many instances, the shadow for the substance."  See also Forbes v. Poor, Dallam, 403 (1841)  "Our system of proceeding in civil suits differs from that known in England and adopted in most of the States of the United States.  The mode of conducting proceedings in civil suits by petition and answer is so highly appreciated by the legislative power of the Republic that it is expressly enacted that the adoption of the common law shall not be construed to adopt the common law system of pleading, but the proceedings in all civil suits shall, as heretofore, be conducted by petition and answer."

6                                              See e.g. Mims v. Mitchell, 1 Texas 443, 447 (1846).  "The pleadings are extremely defective in respect to certainty, perspicuity and accuracy in setting forth the facts which constitute the cause of action and grounds of defense.  Facts are not stated directly with the time, place and circumstances attending and giving character to them; but indirectly and by reference and conclusions drawn from assumed facts are stated, rather than the facts upon which the conclusions arise. . . . Our pleadings really are or are intended to be, what the English pleadings are defined to be:  the statement in a legal and logical manner of the facts which constitute the plaintiff's cause of action, or the defendant's ground of defense, or the written statement of those facts, intended to be relied on, as the support or defense of the party in evidence."  See also Coles v. Kelsey, 2 Texas 542 (1847) and Wright v. Wright, 3 Texas 168 (1848).

7                                              "Pleadings, with the exception of those presenting issues of law, must be a statement of facts, in contradistinction to a statement of evidence, of legal conclusions, and of arguments.  Facts are adequately represented by terms and modes of expression, wrought out by long judicial experience, perpetuated in books of form, in law and equity, which, though not authoritatively requisite, may generally be adopted as safe guides in pleading.  In case of a violation of this rule, to such an extent as to produce confusion, uncertainty, and unnecessary length in pleading, the court may require the matter set up to be repleaded, so as to exclude the superfluous parts of it from the record."  RULES FOR THE DISTRICT COURT, Rule 2, 47 Tex. 615, 615-616 (1877).

8                                              See Franklin, Simplicity in Procedure, 4 Tex. L. Rev. 83, 84 (1925).  "The practicing lawyer of today does not file any pleading without consulting a number of court decisions for the purpose of determining whether he has made a plain statement of his cause of action or defense. . . The pleadings in a case having thus been made intricate by court decisions, is it any wonder that our court reports are filled with decisions on procedure, the final adjudication of cases delayed and the real justice of the cause submerged in a sea of technical rulings?"

9                                              See Rule 17, Id. at 619.

10                                           See Rule 7, Id. at 617; R.C.S. art. 2012 Pleas to be filed in due order.  "Pleas shall be filed in due order of pleading, and shall be heard and determined in such order under the direction of the court."

11                                           See e.g. Gulf, C. & S. Ry. Co. v. Vieno, 26 S.W. 230, 231 (Tex. Civ. App. 1894); cf. Southwestern Life Ins. Co. v. Powers, 122 S.W.2d 1056, 1057 (Comm. App. Sec. A 1939) (opinion adopted) - insufficiency of answer could not be raised for first time on appeal.

12                                           See Ritchie, Appeal and Error - Issues not Raised by Pleadings -- Construction of New Rule 67, 23 Tex. L. Rev. 396, 397 (1945).  Complaint could be made for the first time on appeal, even though appellant admitted the truth of the evidence received without support in the pleading."  (Citing San Antonio & A.P. Ry. v. Flato, 35 S.W. 859 (Tex. Civ. Ap. 1896).)  See also Gulf, C. & S.F. Ry. Co. v. Vieno, 26 S.W. 230, 231 (Tex. Civ. App. 1894).  "Many decisions may be found coming from the supreme court of this state announcing and applying the principle that facts not alleged, though proven, cannot form the basis of a judgment.  (citing Supreme Court cases). . .  The verdict and the judgment would not cure this defect in the petition, nor was it waived because a demurrer was not addressed to it when the fact omitted was a matter of substance."

13                                           "Simplified pleading is basic to any program of civil procedural reform.  With it, the modern remedies of discovery, pre-trial, and summary judgment acquire meaning and value.  Without it, they can accomplish comparatively little. . . because they are geared to the prompt disclosure of all facts and matters in dispute and likewise prompt adjudication where possible." Clark, Simplified Pleading, 27 Iowa L. Rev. 272 (1942).

14                                           See Clark, "The Texas and Federal Rules of Civil Procedure," 20 Tex. L. Rev. 5 (1941); Stayton, "The Scope and Function of Pleading Under the New Federal and Texas Rules:  A Comparison," 20 Tex. L. Rev. 16 (1941).

15                                           See 1836 Tex. Gen. Laws, "An Act Establishing the Jurisdiction and Powers of the District Courts," at page 198, 1 H. Gammel, Laws of Texas 1258, 1260 (1898).

16                                           Frazier, "Venue Procedure in Texas:  An Analysis of the 1983 Amendments to the Rules of Civil Procedure Governing Venue Practice Under the New Venue Statute," 36 Baylor L. Rev. 241 (1984).

17                                           See 1846 Tex. Gen. Laws, "An Act to Regulate Proceedings in the District Courts," at page 363, 2 H. Gammel, Laws of Texas 1669 (1898).

18                                           Townes, Texas Pleading (2d ed. 1913); see also Tex. Rev. Civ. Stat., 1879, art. 1198.

19                                           As noted by Professor McKnight in "The Spanish Influence on the Texas Law of Civil Procedure," 38 Texas L. Rev. 24, 36 (1959), "Spanish law greatly insisted on fixing venue at the defendant''s domicile.  Texas, in turn, drew its venue statute from the Spanish model and has always adhered to the basic Spanish principle, though statutory exceptions are ever increasing."

20                                           See Tex. Rev. Civ. Stat., 1911, art. 1903.


22                                           See Tex. R. Civ. P. 84 through 89.




26                                           It provided in part: "That no plea in abatement, except a plea to the jurisdiction of the court . . . shall be received . . . unless the party pleading the same . . . shall make affidavit to the truth thereof."  (cite)

27                                           Acts of Texas, sec. 18.  This statute was carried forward into the rules of procedure as Tex. R. Civ. P. 124.

28                                           See e.g. In De Witt v. Monroe, 20 Tex. 289, 293 (1857).

29                                           These statutes did not appear in Pascall's original codification and appear to have been added by the codifiers in the 1879 statutes.

30                                           Tex. Rev. Civ. Stat. art. 1242 (1879).

31                                           Tex. Rev. Civ. Stat. art. 1243 (1879).

32                                           Tex. Rev. Civ. Stat. art. 1244 (1879).


34                                           Id. at ____.

35                                           York v. State, 137 U.S. 15 (1890).

36                                           E. Wayne Thode, "In Personam Jurisdiction; Article 2031B, the Texas >Long Arm' Jurisdiction Statute; And the Appearance to Challenge Jurisdiction in Texas and Elsewhere, 42 Tex. L. Rev. 278, 2

37                                           Gammel, The Laws of Texas 1822-1897, Vol. I, p. 206.  The statutes allows for what would now be termed a deposition on written questions, such a mechanism to be used to obtain the testimony of women (who were not allowed in courtrooms at the time) and witnesses who resided outside the county in which the suit was pending.  In addition, to perpetuate testimony for an anticipated suit in which he would have an interest, a person could take the depositions of witnesses who were aged, infirm, or about to leave the Republic.

38                                           See Fed. R. Civ. P. 26.

39                                           The legislature designated the conditions under which a deposition could be taken as: "Depositions of witnesses in civil suits, residing in the State, may be taken in the following cases:  first, where the witness is about to leave the State, or the county where the suit is to be tried; second, where a witness by reason of age, sickness or official duty shall be unable to attend the court; third, where the witness resides without the county in which the suit is pending; fourth, where the witness is female. . . Gammel, The Laws of Texas 1822-1897, Vol. II p. 1685.

40                                           In 1907, the Texas legislature enacted a statute providing that the testimony of "any witness" could be taken by oral deposition, that is, by oral questions propounded by the parties at the deposition proceeding to which oral answers were given.  Texas Session Laws, 1907, Ch. 91.  See W. JORDAN, MODERN TEXAS DISCOVERY, Sect. 3.01, at 172 (1974); Art. 2291 General Laws of the State of Texas, Vol. 13, p. 186-188.

41                                           Fed. R. Civ. P. 33; Tex. R. Civ. P. 168.

42                                           See J. Franki, Discovery, 13 Tex. B. J. 447, 448 (1950) discussing prior case law including Sayles v. Bradley & Metcalf Co., 92 Tex. 406, 49 S.W. 209 (1899); Texas Co. v. Honaker, 282 S.W. 879, 880-882 (Tex. Civ. App.--Fort Worth 1926, writ ref'd).

43                                           See Fed. R. Civ. P. 35 and Tex. R. Civ. P. 167a.

44                                           See Fed. R. Civ. P. 36 and Tex. R. Civ. P. 169.

45                                           Stayton, The Plastic Code, 29 Tex. L. Rev. 764, 787 (1951).

46                                           See Claiborne v. Tanner, 18 Tex. 68, 73-76 (1856); for further discussion of the Texas jury charge practice prior to the 1973 amendments, see Gus M. Hodges, Special Issue Submission in Texas (1959); Richard L. Collier, Submission of Special Issues in Slip and Fall Cases, 5 Baylor L. Rev. 161 (1953); J. B. Dooley, Special Issues Under the New Rules, 20 Tex. L. Rev. 32 (1941); Coleman Gay, "Blindfolding" the Jury:  Another View, 34 Tex. L. Rev. 368 (1956); J.A. Gooch, Submission to the Jury, 18 Tex. B.J. 155 (1955); Leon Green, Blindfolding the Jury, 33 Tex. L. Rev. 273 (1955); Leon Green, Special Issues, 14 Tex. B.J. 521 (1951); Albert P. Jones, Special Issue Submission, 16 Tex. BJ. 323 (1952); W. Page Keeton, Personal Injuries Resulting from Open and Obvious Conditions -- Special Issue Submission in Texas, 33 Tex. L. Rev. 1 (1954); William D. Masterson, Jr., Preparation and Submission of Special Issues in Texas, 6 Sw. L.J. 163 (1952); William O. Neal & William A. Poddick, Submission of Issues in Uncontrolled-Intersection Collision Cases in Texas, 44 Tex. L. Rev. 1 (1965); A.R. Stout, Our Special Issue System, 36 Tex. L. Rev. 44 (1957); Hon. Suggs, Jury Submission Under the New Rules, 6 Dallas B. Speaks 229 (1941).

47                                           McFaddin v. Hebert, 15 S.W.2d 213, 216 (Tex. Comm'n App. 1929), rev'd, 44 S.W.2d 938 (Tex. Comm'n App. 1932).

48                                           See 3 Roy McDonald, Texas Civil Practice Sect. 12.39 (1970).

49                                           Lancaster v. Fitch 246 S.W.1015 (Tex. 1923); see also Tisdale v. Panhandle & S.F.Ry. Co., 228 S.W.133, 137 (Tex. Comm'n App. 1921, judgm't adopted).

50                                           See Galveston, H. & S.A. Ry. Co. v. Jackson, 50 S.W. 1012, 1013 (Tex. 1899).

51                                           See, e.g., Paschal v. Cushman, 26 Tex. 74, 75 (1861) ("This verdict is not sufficient to sustain the decree, inasmuch as the fact is omitted that appellants had recovered a judgment, etc. as alleged in the petition.").

52                                           39 S.W. 559 (Tex. 1897).

53                                           Id. at 561-562.

54                                           Act approved June 18, 1897, 25th Leg., C.S., ch. 7 sect. 1, 1897 Tex. Gen. Laws 15, 15, reprinted in 10 H. Gammel, Laws of Texas 1441, 1455 (1898).

55                                           Act of March 27, 1913, 33d Leg., R.S., ch. 59, sect. 1, 1913 Tex. Gen. Laws 113, repealed by Act of May 12, 1939, 46th Leg. R.S., ch. 25, sect. 1, 1939 Tex. Gen. Laws 201.

56                                           Lemos v. Montez, 680 S.W.2d 798, 801 (Tex. 1984).

57                                           Act of March 27, 1913, 33d Leg., R.S., ch. 59, sect. 1, 1913 Tex. Gen. Laws 113, repealed by Act of May 12, 1939, 46th Leg. R.S., ch. 25, sect. 1, 1939 Tex. Gen. Laws 201.

58                                           Jack Pope & William G. Lowerre, ARevised Rule 277 -- A Better Special Verdict System for Texas," 27 Sw. L.J. 577, 579 (1973).

59                                           240 S.W. 517 (1922), overruled by Burk Royalty Co. v. Walls, 616 S.W.2d 911, 925 (Tex. 1981); see infra notes 46-49 and accompanying text for discussion of Burk Royalty.

60                                           Fox, 240 SW. at 522.

61                                           Id.

62                                           Id. at 521-522.

63                                           Act of Mar. 27, 1913, 33d Leg., R.S., ch. 59, sect. 1, 1913 Tex. Gen. Laws 113, repealed by Act of May 12, 1939, 46th Leg., R.S., Ch. 25, sect. 1, 1939 Tex. Gen. Laws 201.

64                                           See Texas & N.O. Ry. Co. v. Martin, 32 S.W.2d 363, 366-67 (Tex. Civ. App. -- Beaumont 1930, writ ref'd); see also J.M. Radford Grocery Co. v. Andrews, 15 S.W.2d 218, 219 (Tex. Comm'n App. 1929, holding approved) (in automobile collision case, instruction as to duties of drivers approaching and passing other vehicles on public streets was a general charge and not an explanation and definition of the legal term negligence).

65                                           Act approved June 18, 1897, 25th Leg., C.S., ch. 7, sect. 1, 1897 Tex. Gen. Laws 15, 15, 10 H. Gammel, Laws of Texas 1441, 1445 (1898).

66                                           See Texas & N.O. Ry. Co. v. Martin, 32 S.W.2d 363, 366-67 (Tex. Civ. App. -- Beaumont 1930, writ ref'd).  "This assignment does not in the least complain of the court's refusing or failing to define any term used in the charge."  Id. at 367.

67                                           On May 12, 1939, the legislature passed House Bill 108, the Rules of Practice Act.  Through express provision of the Act, full authority to make rules governing civil case was relinquished to the Supreme Court, subject to the limitation that the rules not "abridge, enlarge or modify the substantive rights or any litigant."  The court was ordered to promulgate rules and file them with the Secretary of State within a specified time frame such that the rules would become effective on September 1, 1941.  Tex. Rev. Civ. Stat. Ann., art. 1731a (Vernon 1962) now codified as Gov. C. Sec. 22.004.  See Wilson, The Texas Rules of Civil Procedure, 29 Tex. L. Rev. 766, 766-767 (1951).

68                                           See Wilson, supra, at 769-770 for members of Supreme Court Advisory Committee.  The Committee was especially fortunate to have Roy McDonald, a mid-thirtiesh law professor from Southern Methodist University among its membership.  Roy McDonald served as the reporter for the committee.  Roy McDonald developed the structure of the present day rule book.  Roy McDonald was the one who brought to the attention of the rest of the membership that various portions of the federal rules could be employed usefully in the Texas rule book without doing any damage to the structure of Texas practice as a whole.  Roy McDonald, unfortunately, left Texas in 1942 during World War II to serve his country.  He later went on to become a member of the New York lawfirm of Donovan, Leisure, Newton and Irvine.  He wrote a great deal and continued to contribute to Texas practice, but for the most part we lost him shortly after the adoption of the 1941 rules, at a time when we needed him perhaps the most.

69                                           For a discussion of this activity see Wilson, supra at 768-780.

70                                           See Tex. R. Civ. P. 38, 39, 40, 41, 51, 60 and 97.

71                                           See note 7, supra.

72                                           See Fed. R. Civ. P. 8(a).

73                                           See McDonald, supra at 180.

74                                           See Wilson, supra, at 777-778.

75                                           See Tex. R. Civ. P. 277, 279.

76                                           Stayton, The Scope and Functions of Pleading under the New Federal and Texas Rules:  A Comparison, 20 Tex. L. Rev. 16, 22 (1942).

77                                           G. Hodges, Special Issue Submission in Texas 4 (1959).

78                                           The 1973 amendments to Tex. R. Civ. P. 277 eliminated the requirement that special issues be submitted separately and distinctively.  See cite; W. Dorsaneo, 5 Texas Litigation Guide, Sect. 122.03 5.

79                                           See R. McDonald, "Civil Rules Begin to Take Form," 3 Tex. B.J. 179, 180 (1940).

80                                           Tex. R. Civ. P. 90.

81                                           Fed. R. Civ. P. 34.  The motion to produce, as originally adopted, was derived directly from Federal Rule 34, except that Texas expressly prohibited pre-trial discovery of communications or reports incident to handling the case and entry upon land for inspection.  Tex. R. Civ. P. Ann. 167 (1955).  See McGlinchey, Sanctions Available to Parties in Texas Discovery Procedures, 19 Sw. L.J. 740, 744 (1965).

82                                           Fed. R. Civ. P. 36.

83                                           Id., Rule 35.  See McGlinchey supra at 745.

84                                           Tex. R. Civ. P. 170 (1941).

85                                           Tex. R. Civ. P. 176-215 (1941).

86                                           See Stayton's Plastic Code article.

87                                           See Franki, supra at 479.

88                                           Fed. R. Civ. P. 34.

89                                           See Franki, supra at 477.

90                                           Fed. R. Civ. P. 16.

91                                           Tex. R. Civ. P. 166.

92                                           Unpublished Memorandum "To the Supreme Court" dated 10/15/40 from Justice James W. McClendon, Chief Justice of the Austin Court of Appeals.

93                                           Id; Unpublished Memoranda dated 10/1/40 from Justice James P. Alexander of the Waco Court of Appeals and 10/15/40 from Randolph Carter of San Antonio, Texas.

94                                           Rules of Practice and Procedure in Civil Actions, Rule 277, 3 Tex. B.J. 525, 566 (1940).

95                                           Rules of Practice and Procedure in Civil Actions, Rule 278, 3 Tex. B.J. 525, 566 (1940).

96                                           Tex. R. Civ. P. 277 as originally promulgated in October, 1940, 3 Tex. B.J. 522 (1940).

97                                           3 Tex. B.J. at 567.

98                                           See Boaz v. White's Auto Stores, 172 S.W.2d 481, 484 (Tex. 1943).

99                                           See J.B. Dooley, "The Use of Special Issues Under the New State and Federal Rules," 20 Tex. L. Rev. 32, 36-37 (1941).

100                                         Tex. R. Civ. P. 277 as originally promulgated in October, 1940, 3 Tex. B.J. 522, 566-67 (1940).

101                                         Tex. R. Civ. 185 was amended, effective April 1, 1984 to reduce technical requirements.  Tex. R. Civ. P. 63 was amended effective September 1, 1990, to require that all trial pleadings be on file at least seven days before trial.

102                                         See Yowell v. Piper Aircraft. Co., 703 S.W.2d 630 (Tex. 1986); See also Roark v. Allen, 633 S.W.2d 804, 809-810 (Tex. 1982).

103                                         See Brown v. American Transfer & Storage Co., 601 S.W. 2d 931 (Tex. 1980).


105                                         Read Rules 121-124.

106                                         See York v. State of Texas, 137 U.S. 15, 11 S.Ct. 9, 34 L.Ed. 604 (1890).

107                                         See Nicklas v. Ajax Elec. Co., Inc., 337 S.W.2d 163 (Tex. Civ. App. -- Austin 1960, no writ).

108                                         Thode, "In Personam Jurisdiction, Article 20231b, the Texas "Long-Arm" Jurisdiction Statute; and the Appearance to Challenge Jurisdiction in Texas and Elsewhere," 42 Tex. L. Rev. 279, 293 (1964).

109                                         See Tex. R. Civ. P. 86-89.

110                                         See, e.g., Spradley, "Texas Venue:  The Pathology of the Law," 36 Sw. L.J. 645 (1982); Guittard and Tyler, "Revision of the Texas Venue Statute:  A Reform Long Overdue," Baylor L. Rev. 561 (1980); Greenhill, "State of the Judiciary," 42 Tex. B.J. 379, 383 (1979).

111                                         The 1995 venue amendments apply only to a suit commenced on or after September 1, 1995, except that section 15.018 (mandatory venue exception for FELA and Jones Act claims) applies only to suits filed after January 1, 1996.

112                                         These changes were discussed and developed by the Supreme Court Advisory Committee in 1996 and 1997 and are contained in new Civil Procedure Rule 25.

113                                         Tex. R. Civ. P. 186a (1957) -- The original version of former Rule 186a defined the scope of inquiry for a deposition and subpoena duces tecum used in conjunction therewith as follows: "Unless otherwise ordered by the court as provided by Rule 186b the deponent may be examined regarding any matter, not privileged, which is relevant to the subject involved in the pending action,. . ."

114                                         Tex. R. Civ. P. 186a (1957).

115                                         Tex. R. Civ. P. 167 (1941) A. . . provided that the rights herein granted shall not extend to the written communications passing between agents or representatives or the employees of either party to the suit, or communications between any party and his agents, representatives, or their employees, where made subsequent to the occurrence or transaction upon which the suit is based, and made in connection with the prosecution, investigation or defense of such claim or the circumstances out of which same has arisen."  This provision was part of the Texas rule since its original adoption.  The wording does not appear in Federal Rule 34.  See Ex Parte Ladon 160 Tex. 7, 325 S.W.2d 121 (1959).

116                                         329 U.S. 495 (1946).

117                                         See e.g. Fed. R. Civ. P. 26(b).

118                                         Tex. R. Civ. P. 186a (1957); see W. Thode, Some Reflections on the 1957 Amendments to the Texas Rules of Civil Procedure Pertaining to Witnesses at trial, Depositions and Discovery, 37 Tex. L. Rev. 33, 38 (1958).

119                                         Ex parte Ladon, 160 Tex. 7, 325 S.W.2d 121 (1959), holding that original proviso to Tex. R. Civ. P. 167 precluded an injured passenger from obtaining the names of persons on bus from defendant transit company.; Ex parte Hanlon, 406 S.W.2d 204 (Tex. 1966), interpreting Tex. R. Civ. P. 186a to shield identity of potential party defendant because that information was obtained by claim manager and investigator for insurer of another party to the collision.

120                                         Tex. R. Civ. P. 167 and 186a (1971).

121                                         Allen v. Humphreys, 559 S.W.2d 798 (Tex. 1977); Werner v. Miller), 579 S.W.2d 455 (Tex. 1979).

122                                         Tex. R. Civ., P. 167, 168 (1981).

123                                         Mr. Soules is the current Chairman of the Advisory Committee to the Supreme Court of Texas.

124                                         Tex. R. Civ. P. 166b.

125                                         Tex. R. Civ. P. 215.

126                                         Tex. R. Civ. P. 215(1), (2)(b).

127                                         Tex. R. Civ. P. 166b(2)(a) -- "It is . . .  not ground for objection that an interrogatory propounded pursuant to Rule 168 involves an opinion or contention that relates to factor the application of law to fact . . . . It is also not ground for objection that a request for admission propounded pursuant to Rule 169 relates to statements or opinions of fact or of the application of law to fact or mixed questions of law and fact or that the documents referred to in a request may not be admissible at trial."  See Laycox v. Jaroma, Inc., 709 S.W.2d 2 (Tex. App. - Corpus Christi 1986).

128                                         See Fed. R. Civ. P. 33, 35.

129                                         Tex. R. Civ. P. 166b(2)(e)(1).

130                                         See Tex. R. Civ. P. 166b(3).

131                                         Tex. R. Civ. P. 166b(3)(d).

132                                         Turbodyne v. Heard, 720 S.W.2d 802 (Tex 1986), holding that documents prepared by casualty insurer in connection with settlement of claims with its insured are not protected from discovery in later subrogation suit; Vikki B. Stringer v. Eleventh Court of Appeals, 720 S.W.2d 801 (Tex. 1986), holding "only information obtained by a party after there is good cause to believe a suit will be filed or after the institution of a lawsuit is privileged; "Robinson v. Harkins & Company, 711 S.W.2d 619 (Tex. 1986), holding that an investigator's report prepared in connection with a workers' compensation claim was discoverable in a later personal injury action; Terry v. Lawrence, 700 S.W.2d 912 (Tex. 1985), reaffirming holding that photographs are not within "party communications" exemption.

133                                         777 S.W.2d 38 (Tex. 1989).

134                                         851 S.W.2d 193, 203 (Tex. 1993).

135                                         Id.

136                                         Republic Ins. Co. v. Davis, 856 S.W.2d 158, 164 (Tex. 1993).

137                                         Garcia v. Peeples, 734 S.W.2d 343, 348 (Tex. 1987).

138                                         See, e.g., Axelson, Inc. v. McIlhany, 798 S.W.2d 550, 554 (Tex. 1990), holding that attorney work product privilege protects "only the mental impression, opinions, and conclusions of the lawyer and not the facts;" see also Leede Oil and Gas, Inc. v. McCorkle, 789 S.W.2d 686 (Tex. App. -- Houston 1st Dist. 1990, orig. proceeding).

139                                         Owens-Corning Fiberglas Corp. v. Caldwell, 818 S.W.2d 749 (Tex. 1991), disapproving Dewitt & Rearick, Inc. v. Ferguson, 699 S.W.2d (Tex. App. -- El Paso 1985, orig. proceeding).


141                                         See, e.g., Zahn v. International Paper Co., 414 U.S. 291 (1973); but see, In re Abbott Laboratories 51 F.3d 524 (5th Cir. 1995).

142                                         Commercial Travelers Life Ins. Co. v. Spears, 484 S.W.2d 577, 579 (Tex. 1972) quoting Louis Frumer, "Multiple Parties and Claims in Texas," 6 Sw.L.J. 135, 160 (1952); see generally Joseph Jaworski and Shelton E. Padgett, "The Class Action in Texas:  An Examination and a Proposal," 12 Houst. L. Rev. 1005, (1975).

143                                         Tex. R. Civ. P. 166a adopted as a new rule, effective March 1, 1950. 

144                                         R. McDonald, Summary Judgments, 30 Texas L. Rev. 285, 286 (1952); Gulbenkian v. Penn, 151 Tex. 412, 252 S.W.2d 929, 931 (1951).

145                                         Gaines v. Hamman, 163 Tex. 618, 625, 358 S.W.2d 557, 561-562 (1962).  Somewhat interestingly, earlier appellate decisions had treated the procedure more favorably after its adoption in 1950.  See Rolfe v. Swearingen, 241 S.W.2d 236, 239-240 (Tex. Civ. App. -- San Antonio 1951, writ ref'd n.r.e.) (per Pope, J.) -- holding that a nonmovant could not raise a disputed issue of fact by remaining silent and announcing ready for trial.  Justice Pope's opinion contains the following interesting language: "While appellees were shouting their facts, appellants elected to remain mute . . ." " To holding otherwise, ". . . will sound the requiem to a rule that has hardly been christened."  See also Fowler v. Texas Employers' Ins. Ann'n, 237 S.W.2d 373, 375 (Tex. Civ. App. -- Fort Worth 1951, writ ref'd) -- relying on following general rule from Cochran v. Woolgrowers Central Storage Co., 140 Tex. 184, 166 S.W.2d 904, 908 (1942):  A. . . where the testimony of an interested witness is not contradicted by any other witness, or attendant circumstances, and the same is clear, direct and positive, and free from contradiction, inaccuracies and circumstances tending to cast suspicion thereon, it is taken as true as a matter of law."

146                                         See Gibbs v. General Motors Corp., 450 S.W.2d 827 (Tex. 1970).

147                                         See Texas National Corp. v. United Systems International, Inc., 493 S.W.2d 738 (Tex. 1973).

148                                         A study revealed that during a six-year period, only two percent of civil cases in Texas were handled successfully by summary judgment, Pittsford & Russel, Summary Judgment in Texas:  A Selective Survey, 14 Hous. L. Rev. 854, (1977).  Another revealed that seventy percent of the summary judgment cases decided by the Texas Supreme Court from 1968 to 1976 resulted in reversals.  Sheehan, Summary Judgment:  Let the Movant Beware, 8 St. Mary's L.J. 253, 254 (1976).

149                                         Tex. R. Civ. P. 166a(c).

150                                         Tex. R. Civ. P. 166a(c), (d).

151                                         589 S.W.2d 671 (Tex. 1979).

152                                         Lear Siegler, Inc. v. Perez, 819 S.W.2d 470, 471 (Tex. 1991).

153                                         Jennings v. Burgess, 917 S.W.2d 790, 793 (Tex. 1996).

154                                         776 S.W.2d 551 (Tex. 1989).

155                                         477 U.S. 317 (1986).

156                                         477 U.S. at 322.

157                                         776 S.W.2d at 556.

158                                         Subdivision (i) of amended Civil Procedure Rule 166a provides:


(i) No Evidence Motion.  After adequate time for discovery, a party without presenting summary judgment evidence may move for summary judgment on the ground that there is no evidence of one or more essential elements of a claim or defense on which an adverse party would have the burden of proof at trial.  The motion must state the elements as to which there is no evidence.  The court must grant the motion unless the respondent produces summary judgment evidence raising a genuine issue of material fact.

159                                                    It is interesting to note that Chief Rehnquist's majority opinion in Celotex provides:


"We do not mean that the nonmoving party must produce evidence in a form that would be admissible at trial in order to avoid summary judgment.  Obviously, Rule 56 does not require the nonmoving party to depose her own witnesses.  Rule 56(e) permits a proper summary judgment motion to be opposed by any of the kinds of evidentiary materials listed in Rule 56(c), except the mere pleadings themselves, and it is from this list that one would normally expect the nonmoving party to make the required showing. . ."

160                                         477 U.S. at 324.

161                                         Under the bill, which would have become Chapter 40 of the Civil Practice and Remedies Code:


If a motion by a defendant is based on absence of proof on a claim or issue with respect to which the claimant has the burden of proof, the claimant must respond with evidence sufficient to entitle the claimant to submission of the claim or issue to the jury.  If the claimant does not respond as required by this subsection, the court shall grant summary judgment in favor of the defendant.


Proposed C.P.R.C. ' 40.001(c) (H.B. 95 by Nixon).

162                                         See Tex. R. Civ. P. 301.  See also Robert W. Calvert, "No Evidence" and "Insufficient Evidence" Points of Error, 38 Tex. L. Rev. 361 (1960); William Powers, Jr. & Jack Ratliff, Another Look at "No Evidence" and "Insufficient Evidence," 69 Tex. L.Rev. 515 (1991).

163                                         See, e.g., Havner v. E-Z Mart Stores, Inc., 825 S.W.2d 456, 458 (Tex. 1992); see also W. Wendall Hall, Revisiting Standards of Review on Civil Appeals, 24 St. Mary's L.J. 1045, 1133 (1993).  A different approach is taken in "bad faith" insurance litigation because the elements of the plaintiff's case include "a negative fact," i.e., "the absence of a reasonable basis for denying or delaying payment of the benefits of the policy."  Lyons v. Millers Cas. Ins. Co. of Texas, 866 S.W.2d 597, 600 (Tex. 1993).  In Lyons, the Court devised A... a particularized application of our traditional no evidence scope of review" under which a review of A... the legal sufficiency of the evidence supporting a bad faith finding must focus ... on the evidence arguably supporting a bad faith finding."  Id. In other words, the evidence of the insurer's basis for denial of the claim cannot be disregarded and, if probative and uncontroverted, can be conclusive.

164                                         See Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex. 1983).

165                                         650 S.W.2d 61, 63 (Tex. 1983).

166                                         It must be noted that the federal standard and scope of review not only varies from circuit to circuit, federal authority may not be particularly instructive in applying the new Texas rule because the scope of review in a particular circuit may require a consideration of the entire record or a different method for evaluating the probative value of circumstantial evidence.  See, e.g., Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).

167                                         Jack Pope & William G. Lowerre, "Revised Rule 277 - A Better Special Verdict System for Texas," 27 Sw.L.J. 577, 579 (1973).

168                                         Former Chief Justice Jack Pope, clearly the most influential figure in the simplification of Texas charge practice in the latter part of the twentieth century, minimized the significance of the change in a law review article by stating that,"although the submission of instructions has been expanded to give the trial judge more discretion in his use of instructions, this discretion is not unfettered.  Instructions are limited to those that should enable the jury to render its verdict."  Jack Pope & William G. Lowerre, "The State of the Special Verdict - 1979, 11 St. Mary's Law Journal 1, 39 (1979).

169                                         Lemos v. Montez, 680 S.W.2d 798, 801 (Tex. 1986); see also Burk Royalty Co. v. Walls, 616 S.W.2d 911, 924 (Tex. 1981) ("This court has repeatedly written that Rule 277 will be applied as written").

170                                         Island Recreational Dev. Corp. v. Republic of Texas Sav. Ass'n, 710 S.W.2d 551, 555 (Tex. 1986).

171                                         Lemos v. Montez, 680 S.W.2d 798, 801 (Tex. 1986) ("This court's approval and adoption of broad issue submission was not a signal to devise new or different instructions and definitions . . . Judicial history teaches that broad issues and accepted definitions suffice and that a workable jury system demands strict adherence to simplicity in jury charges.")

172                                         Tex. R. Civ. P. 277.

173                                         Texas Dept. of Human Serv. v. E.B., 802 S.W.2d 647, 649 (Tex. 1990).

174                                         Orders of Texas Supreme Court and Court of Criminal Appeals, Approval of Revisions of Texas Rules of Civil and Criminal Evidence, Oct. 20, 1997, Effective March 1, 1998.