TX Trial and Appellate Procedure -
Carlson Latest Questions And Answers
Must give at least ____ days notice of initial trial setting. - A45
If case is reset after a previous setting, must only give reasonable notice. Rule 245n
Not a lot of rules on how cases get set for trial.
Happens because there are so many variations among the 254 counties in TX. Local rules are
really important.
Local rules - - Aregional judges get together, make gap-filer rules. Send to TXSC for approval.
Posted online on the court's webpage.
Rules advisory - recent changes; prospective changes.
You can find them under TXSC webpage.
Sets forth what you need to do in that county to get on docketn
Methods of Setting for Trial
How can cases be for trial? Three option - A1) party's motion - any party can file a "request for
trial setting"
2) court can set a case for trial through its own motion (order of the court)
3) agreement of the parties to a trial setting
Lawyers must check the local rules and the individual judge's web page for and "standing
orders" and meet any requirements for obtaining or changing a trial setting
Different courts have different terms of dockets: two week docket, one month, etc.
Whatever they have decided locally.
EX: If they have a two week docket, you would then ask for a trial setting in one of those two
weeks in whatever month you want, and now you're on the docket.
Have to give other side 45 days notice (unless it's an agreed setting).
,And the court has to give the parties 45 days notice of he initial trial setting if it's done on the
court's own motion.n
Scheduling orders - TRCP 166
What are pretrial scheduling or docket control orders? How might such an order affect the
setting of a case for trial? (See TRCP 166) - AIn a lot of cases, particularly municipalities, the
trial court will use scheduling orders (AKA docket control orders, pretrial conference orders - all
the same thing).
Under TRCP 166, trial courts can set a schedule for a case that is customized to that case;
those deadlines prevail.
166 lists a ton of things that a court might consider it its scheduling order, and ends with a "catch
all" provision of any other matters that might aid in the disposition of the matter.
Can set deadlines for pleadings, motions, discovery, time to designate experts, lists of
witnesses, proposed jury charge, date of trial, etc.
Usually there are more cases on the docket than could possibly be dealt within that time.
Why would the court put more cases on the two week docket than it could possibly handle?
Many cases are settled on the courthouse steps as trial nears.
A lot of times your case is just not reached; but you never know.n
Order of docket: - AThe court is supposed to first try any cases in the docket that are
preferentially set.
Then courts go to the oldest cases next. You can tell by the docket number.
Most clerks are involved in scheduling the docket, and most will let you see the docket. Are you
#3 or #40?
Sometimes lawyers from other cases will let you know status of their case.
It's very expensive to get your witnesses, exhibits, etc. together. So it can be important to know:
"is this a real setting or not?" (i.e. is the trial really happening)n
Notice of Setting for Trial
TRCP 245: all parties are entitled to not less than 45 days' notice of an initial trial setting. If the
case is not reached or reset, the parties must be afford ... - Areasonable notice of the
subsequent hearing.
If the party requested the setting themselves they obviously have notice.
,If the parties agree to a trial setting, they have notice.
So it's only when one party requests the trial setting, the other side is entitled to 45 days notice.
Or, if the court sets the trial setting, all parties are entitled to 45 days notice.
This is a matter of due process.
This notice is mandatory, but it can be waived by the failure of counsel to object to the court's
failure to give at least 45 days notice of the trial setting.n
Failure to Give Notice
Failure to give notice of a trial setting as required by the TRCP or by local rule, is cause for ... -
Asetting aside a judgment against the non-notified and non-appearing parties or granting the
party a new trial, provided the party objects on that basis to going forward.
TRCP 245-6, 306a:
The failure to give this notice deprives a party of due process rights.
Procedural due process = notice and an opportunity to be heard.
if you object and the court proceeds anyway, that's grounds for seeking a new trial. Can happen
on appeal - reverse and remand for new trial.n
Docket Call
Assuming the case is now set for trial, counsel may be required to attend the docket call (check
local rules)
Docket call - sounding of the docket
Order of the cases:
1) any cases preferential set
2) eldest cases
Local rules: many counties require as part of their local rules for counsel to appear at docket
call.
Usually on the Friday before the Monday that the docket starts.
What happens at docket call: - AThe court/bailiff reads out the docket number and parties one at
a time, and asks counsel "ready" or "not ready" or seeking continuance, etc.
Plaintiff counsel goes first, then defense counsel.
That's how the court knows if you're really ready to go.
, If you say "not ready" you better have a motion for continuance ready to go and get a ruling from
the court so you're not on the docket.
A lot of local rules say that you have to appear at docket call in person and you have to be the
trial counsel with authority to settle.
In other words, the lead lawyer has to go. Seems like a big waste of time, especially if you have
to travel to El Paso, Brownsville, etc. just to say "ready" or "not ready".
But some judges use that system because they want to ask "you're really going to trial on THIS
case? You sure you don't want to try to settle?"
Court can't force you to settle, but can give you big hints.
More modern rules don't have docket call. Will assume all lawyers are ready unless continuance
motion is filed.
Have to look at local rules to see what you have to do to preserve your trial setting.
Harris County has done away with them in civil cases in the District Courts.n
Preferential Setting
Preferential (Special) Setting - - AA setting at an earlier or differential time than would occur if
standard setting procedures were followed.
-No matter how new your case is, you move to front of the line of that docket with a preferential
setting.n
How do you get a preferential setting? - AMake a motion for a preferential setting.
By statute, TX trial courts must give preference to hearing of certain specific types of cases.
-Matters that will cause physical or economic harm to the public or the parties
-Matters involving substantive or constitutional rights
-Matters involving the public or the public welfare
Local rules can affect the basis for preferential setting.
-Likely especially if it is a huge case with lots of witnesses, cost a lot of money to try, etc.
-In Harris county you are likely to get itn
Preferential Settings - ASpecial setting of a case is a setting at an earlier or different time than
would occur if standard setting procedures were followed.
TX courts must give preference to hearings and trials of certain types of cases:
Temporary injunctions
Certain criminal actions
Election contests
