Rules & Forms

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Excerpted from Nathan L. Hecht & E. Lee Parsley, Procedural Reform: Whence and Whither (Sept. 1997), updated by Robert H. Pemberton (Nov. 1998)

This paper explains how the Texas Supreme Court has derived its authority to promulgate procedural rules like the 1999 discovery rules revisions, the new combined Rules of Evidence and the new Rules of Appellate Procedure and describes the process by which the Court drafts such rules. It also briefly surveys the historical origins of the more important sets of Texas procedural rules.

§ 1.01 The Supreme Court's Rulemaking Authority

[1] The Texas Constitution

Some rules of procedure being essential to the operation of the judiciary, the Supreme Court adopted a few before it had any constitutional or statutory authority to do so. See 1 George D. Braden, et al., The Constitution of the State of Texas 471 (1977) (citing Texas Land Co. v. Williams, 48 Tex. 602 (1878)). Apparently the Court relied on the judiciary's inherent power, at least in the absence of legislated rules, to promulgate a few rules of procedure. See also Ashford v. Goodwin, 131 S.W. 535, 538 (Tex. 1910).

The 1876 Constitution authorized the Court to "make rules and regulations for the government of said court, and the other courts of the State, to regulate proceedings and expedite the dispatch of business therein." Tex. Const. art. V, § 25 (amended 1891, repealed 1985). Under this provision, the Supreme Court had the exclusive power to regulate the judiciary, both as to administration and procedure. This power was short-lived. In 1891 the provision was amended to give the Court "power to make and establish rules of procedure not inconsistent with the laws of the State for the government of said court and the other courts of this State to expedite the dispatch of business therein." Tex. Const. art. V, § 25 (repealed 1985) (emphasis added). The amended provision required judicial deference to the Legislature. In 1985, Section 25 was repealed and replaced by Section 31, which states:

(a) The Supreme Court is responsible for the efficient administration of the judicial branch and shall promulgate rules of administration not inconsistent with the laws of the state as may be necessary for the efficient and uniform administration of justice in the various courts.

(b) The Supreme Court shall promulgate rules of civil procedure for all courts not inconsistent with the laws of the state as may be necessary for the efficient and uniform administration of justice in the various courts.

(c) The legislature may delegate to the Supreme Court or Court of Criminal Appeals the power to promulgate such other rules as may be prescribed by law or this Constitution, subject to such limitations and procedures as may be provided by law.

Thus, the Constitution now empowers the Supreme Court to adopt rules of administration and procedure, and authorizes the Legislature to delegate to the Court and to the Court of Criminal Appeals other rulemaking power.

[2] Statutory Authority

Soon after the 1891 amendment to Article V, Section 25 of the Texas Constitution, which gave the Legislature a role in making court procedural rules, the bench and bar became dissatisfied with the Legislature's piecemeal approach to rulemaking and with the difficulty in achieving any improvement in court procedure through the legislative process. Restoring broader rulemaking authority to the Supreme Court became the first priority of the bar. In 1934, the Congress empowered the United States Supreme Court to prescribe general rules of practice and procedure in federal courts consistent with Acts of Congress. 28 U.S.C. § 2071. The first Federal Rules of Civil Procedure approved by the Supreme Court became effective September 16, 1938.

In 1939 the Texas Legislature enacted the Rules of Practice Act giving the Supreme Court "full rulemaking power in the practice and procedure in civil actions." Act of May 15, 1939, H.B. 108, 46th Leg., R.S., ch. 25, 1939 Tex. Gen. Laws 201 (formerly codified as Tex. Rev. Civ. Stat. Ann. art. 1731a, now codified as Tex. Gov't Code § 22.004). In so doing, the Legislature found that --

the rules of practice and procedure in the Civil Courts, as prescribed by legislative enactment, often result in much unnecessary delay to litigants and in great and unnecessary expense to litigants and to the State, and in unnecessary reversals and new trials upon technical grounds, with consequent further delay and expense; and as a result the Courts are subjected to criticism calculated to weaken and undermine in the public estimate their prestige so essential to the stability of our democratic form of government; and that it is essential to place the rule-making power in civil actions in the Supreme Court, whose knowledge, experience, and intimate contact with the problems of judicial administration render that Court particularly well qualified to mitigate and cure these evils . . . .

The power conveyed by statute is plenary; the Act provides that rules adopted by the Court repeal all conflicting laws on procedure in civil cases, including statutes enacted by the Legislature. The Court must notify the bar of rules changes and must deliver a copy to the Secretary of State for transmission to the Legislature.

The statute states that the Legislature may disapprove rules adopted by the Court, but it has never done so. For fifty years the Legislature did not interfere with the rulemaking power given the Court. Beginning in 1989, however, the Legislature has enacted several statutes prescribing procedure in civil cases and prohibiting the Court from changing them through its power under the Rules of Practice Act. These include: Tex. Civ. Prac. & Rem. Code §§ 10.001-.006 (sanctions for frivolous pleadings and motions); §§ 14.001-.014 (inmate litigation); § 30.07 (personal identifying information privileged from discovery by inmate); §§ 52.001-.005 (security for judgments pending appeal); § 64.091 (service of process in suit for appointment of a receiver for mineral interests owned by nonresidents or absentees); §§ 65.041-.045 (injunction bond not required of indigents); Tex. Fam. Code §§ 111.001-.002 (guidelines for possession and child support); Tex. Gov't Code § 52.047 (official court reporter cannot be paid for preparing record for indigent if substitute reporter is being paid to perform official duties); Tex. Lab. Code § 410.305 (judicial review of issues regarding compensability or income or death benefits); Tex. Rev. Civ. Stat. Ann. art. 4590i, § 13.01 (cost bond, deposit, and expert report in health care liability claims).

In 1985, concurrent with the adoption of Article V, Section 31 of the Texas Constitution, the Legislature also authorized the Supreme Court to "adopt rules of administration setting policies and guidelines necessary or desirable for the operation and management of the court system and for the efficient administration of justice." Tex. Gov't Code § 74.024.

§ 1.02 The Supreme Court's Rulemaking Process

[a] The Supreme Court Advisory Committee

Following the U.S. Supreme Court's example, upon passage of the Rules of Practice Act, the Texas Supreme Court appointed an Advisory Committee to recommend Rules of Civil Procedure. The SCAC was comprised of 21 members -- lawyers, judges, and academics from all regions of the State. The committee completed its task and reported to the Court in September 1940.

The Court has kept the SCAC in existence throughout the intervening years to advise on revisions to the rules, although presently the group is not meeting and the terms of its members technically expired on December 31, 1997. This is because after completing the herculean tasks of advising the Court on new appellate, evidence, and discovery rules, there was little for the group to do until the Court promulgated each of these sets of rules. The Court anticipates reconstituting the SCAC after the 1999 discovery rules revisions take effect on January 1, 1999.

The structure of the SCAC has changed over the years. Most recently, it has had 36 members each appointed for a term of three years. In addition, there have been 11 ex officio members representing various elements of the bench and bar.

When the SCAC meets, its meetings are held at the Bar Center in Austin and are open to the public. In addition to revisions suggested by members, the SCAC considers every proposal it receives, whether from the Court itself, from the Executive and Legislative Departments, from bar groups interested in rules of procedure, from individual judges and lawyers, and from the public.

The SCAC is not the only group which studies revisions to procedural rules. Two State Bar committees -- the Court Rules Committee and the Administration of the Rules of Evidence Committee -- conduct their own studies of the rules. The Appellate Section of the State Bar is active in reviewing appellate rules, as is the Litigation Section in reviewing trial rules. Other groups, such as the Family Law Section, are very active in recommending changes to rules of procedure. The Court welcomes all input but refers it to the SCAC for initial consideration.

Since May 31, 1985, a record of the debates of the SCAC has been made by a court reporter. Transcriptions of debates and copies of proposals received by the committee are kept in the State Law Library and at the Supreme Court. All these materials are available to the public.

[b] The Rules of Civil Procedure

In 1940, the SCAC proposed 820 rules taken almost entirely from the existing procedural statutes which they repealed, with a few based on the new Federal Rules of Civil Procedure. After making some minor modifications, the Court adopted the new Rules of Civil Procedure to be effective September 1, 1941. Since 1941, the Rules of Civil Procedure have been amended numerous times, most recently when the Supreme Court promulgated the 1999 discovery rules revisions. Although the substance of the rules has changed significantly over the years, they remain in substantially the same form as originally promulgated, with one major exception: the separation of the Rules of Appellate Procedure.

[c] The 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.

In 1997, the Supreme Court promulgated an entirely new set of Rules of Appellate Procedure. The new rules were intended to make appellate practice more user-friendly, refocus appellate procedure on the merits rather than technicalities, and reduce cost and delay.

[d] The Rules of Civil Evidence

Effective September 1, 1983, the Court promulgated Rules of Civil Evidence, replacing numerous statutory provisions. In 1997, the Court, together with the Court of Criminal Appeals, jointly promulgated uniform Rules of Evidence to govern both civil and criminal cases.

[e] The Rules of Judicial Administration

Effective February 4, 1987, the Supreme Court adopted Rules of Judicial Administration providing for a Council of Regional Presiding Judges, prescribing duties for presiding judges and local administrative judges, and setting time standards for disposition of cases. § 1.03 The Court of Criminal Appeals

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 procedure in criminal cases. Tex. Gov't Code §§ 22.108-.109. The Court of Criminal Appeals participated in the adoption of the Rules of Appellate Procedure in 1986, and it adopted the Rules of Criminal Evidence the same year. More recently, it participated in the adoption of the new Rules of Appellate Procedure and the Rules of Evidence. The Court of Criminal Appeals must also be consulted on administrative rules affecting criminal cases. Tex. Gov't Code § 74.024.

§ 1.04 Local Rules

Individual courts have adopted local rules mostly to provide docket control and often to prescribe standing pretrial procedures. These rules differ widely. Local rules governing civil cases are subject to Supreme Court and/or Court of Criminal Appeals approval. Tex. R. Civ. P. 3a; Tex. R. App. P. 1.2.