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Texas Supreme Court Proposes Rules for Expedited Actions and Dismissals
By:  Dan Worthington, Atlas Hall & Rodriguez L.L.P., McAllen, Texas

In 2011, the 82nd Texas Legislature passed House Bill 274, which directed the Texas Supreme Court to adopt proposed rules for dismissals and expedited actions.

The proposed rules were published in December’s Texas Bar Journal. The Texas Supreme Court is currently accepting comments which must be delivered by February 1, 2013 to Marisa Secco, Rules Attorney, Texas Supreme Court, PO Box 12248, Austin, Texas 78711.

Below are short summaries of the new rules, which are currently scheduled to take affect on March 1, 2013.

Proposed Expedited Trial Rules

Mandatory for claims under $100,000.00 per plaintiff. A stipulation by each Plaintiff that it will not seek damages greater than 100K, exclusive of post-judgment interest makes the case initially subject to the expedited trial rules.

Excluded Claims. Suits in which a claim brought under the tax code, property code, family code or Chapter 74 of the CPRC is asserted are excluded from the expedited action process.

Removal from System. Upon a showing of "good cause" the case may be removed from the expedited trial rules. The rules do not provide for interlocutory appeals following the denial of a motion to remove from expedited trial rules.

Discovery. Written discovery is limited to 15 interrogatories, 15 requests for production, 15 requests for admission, requests for disclosure and a requirement that each side produce all documents supporting a claim or defense. Depositions are limited to a total of 6 hours per party.

Experts. No Daubert challenges prior to trial unless offering party requests.

Trial. Each side is limited to 5 hours to put on the entire case from voir dire to closing argument.

Motion to Dismiss

Grounds. A motion may be filed to dismiss a claim on the grounds that the claim has no basis in law or fact. A claim has no basis in law if the allegations (and all reasonable inferences) do not entitle the claimant to relief, and a claim has no basis in fact if no reasonable person could believe the facts pleaded.

Deadline to File. The motion must be filed within 60 days after service of the offending pleading.

Hearing Deadline. The Court must set the matter for hearing no earlier than 21 days and no more than 45 days after the motion is filed. The Court must give at least 14 days notice of the hearing. The response must be filed no less than 7 days from the date of the hearing. The Court must grant or deny the motion within 45 days after the motion is filed.

Nonsuits to Avoid Hearing. A claimant may non-suit a claim, made the subject of this motion, no later than 7 days before the hearing, and if timely non-suited, the motion cannot be heard.

Withdrawing Motion. A movant may withdraw the motion no less than 7 days before the hearing and if timely withdrawn, the motion cannot be heard.

No Evidence. No evidence may be considered at the hearing.

Cost Shifting. The Court must award the attorney's fees incurred in bringing or responding to the motion to the prevailing party.

Rule 47 Claims for Relief

Plaintiffs and Counter-plaintiffs must include within their pleading a statement that the claims sought either: (1) are less than 100K; (2) are less than 100K without a claim for non-monetary relief; (3) are between 100k-500K; (4) are between 500K and 1 million; or (5) exceed 1 million. All of these statements are inclusive of all damages except post-judgment interest. No discovery may be conducted until the pleading contains the above damage statement.

While slightly unclear, it appears as if Rule 47 is retroactive to all pending lawsuits. Further, Rule 47 applies to all suits for all claims.

Dan Worthington is a partner with Atlas Hall Rodriguez, L.L.P., in McAllen, Texas. He represents defendants and plaintiffs in various litigation with a focus on premises liability, personal injury and commercial disputes.