A new legal frontier: Navigating the 2021 Texas Rules of Civil Procedure

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Eversheds Sutherland (US) LLPFrom rules detailing what must be included in a lawsuit and what discovery is allowed in the lawsuit, to rules outlining the requirements for certain pretrial motions, trials, and post-judgment relief, the Texas Rules of Civil Procedure govern nearly every aspect of litigation in Texas. While these rules may be amended slightly from year to year, the changes that took effect on January 1, 2021 materially impact the practice of litigation in Texas – and worth a close read. The following alert details the new changes and considerations for practitioners under the 2021 Amended Texas Rules of Civil Procedure.

Rule 194: Required Disclosures

Perhaps the most noticeable development in the new Texas Rules of Civil Procedure is the change of the former “Requests for Disclosure” to “Required Disclosures.”

Now, instead of waiting to receive the standard Request for Disclosure notice, the Texas Supreme Court created an affirmative duty to disclose the “the information or material described in Rule 194.2, 194.3, and 194.4.” Tex. R. Civ. Pro. 194.1(a).

When Due: Required Disclosures are due at or within 30 days after the filing of the first answer. Parties who were served or joined after the filing of the first answer have 30 days after being served or joined to file their Required Disclosures. Tex. R. Civ. Pro. 194.2(a). Rule 194.3, which previously governed the response deadline, has been removed.

Content: The new Required Disclosures incorporate some elements of the old Requests for Disclosure (shown in standard font) and include new disclosures, modeled after Federal Rule of Civil Procedure 26(a)(1)(A), which are bolded below.

  1. The correct names of the parties to the lawsuit;
  2. The name, address, and telephone number of any potential parties;
  3. The legal theories and, in general, the factual bases of the responding party’s claims or defenses;
  4. Instead of the “amount and any method of calculating economic damages,” the rules now require “a computation of each category of damages” and the production of the non-privileged “documents or other evidentiary material on which each computation is based, including materials bearing on the nature and extent of injuries suffered;”
  5. The name, address, and telephone number of persons having knowledge of relevant facts, and a brief statement of each identified person’s connection with the case;
  6.  A copy—or a description by category and location—of all documents, electronically stored information, and tangible things that the responding party has in its possession, custody, or control, and may use to support its claims or defenses, unless the use would be solely for impeachment.
  7. any indemnity and insuring agreements described in Rule 192.3(f);
  8. any settlement agreements described in Rule 192.3(g);
  9. any witness statements described in Rule 192.3(h);
  10. in a suit alleging physical or mental injury and damages from the occurrence that is the subject of the case, all medical records and bills that are reasonably related to the injuries or damages asserted or, in lieu thereof, an authorization permitting the disclosure of such medical records and bills;
  11. in a suit alleging physical or mental injury and damages from the occurrence that is the subject of the case, all medical records and bills obtained by the responding party by virtue of an authorization furnished by the requesting party; and
  12. the name, address, and telephone number of any person who may be designated as a responsible third party.

Tex. R. Civ. Pro. 194.2(b).

Notably absent from the Required Disclosures is previous Rule 194.2(f), which required certain disclosures related to testifying experts. Now, Amended Rule 195.5(a) lists the disclosures for any testifying expert, which are now required without awaiting a discovery request, and were formerly listed in Rule 194(f). Amended Rule 195.5(a) also includes three new disclosures based on Federal Rule of Civil Procedure 26(a)(2)(B). They are (i) the witness's qualifications, including a list of all publications authored in the previous 10 years; (ii) a list of all other cases in which, during the previous 4 years, the witness testified as an expert at trial or by deposition; and (iii) a statement of the compensation to be paid for the study and testimony in the case

Importantly, actions for review on an administration record, forfeiture actions arising from a state statute, and petitions for habeas corpus are exempt from the Required Disclosure requirements. Tex. R. Civ. Pro. 194.2(d). Certain suits under the Family Code, however, now have their own Required Disclosures under Rule 194.2(c).

Relation to Other Discovery: Unless otherwise agreed to by the parties or ordered by the court, a party cannot serve discovery until after the initial disclosures are due. Tex. R. Civ. Pro. 192.2.

Pre-Trial Disclosures. In addition to the disclosures required by Rules 194.2 and 195 (experts), within 30 days before trial, a party must provide to the other parties and promptly file the following information about the evidence that it may present at trial other than solely for impeachment:

  1. the name and, if not previously provided, the address, and telephone number of each witness—separately identifying those the party expects to present and those it may call if the need arises; and
  2. an identification of each document or other exhibits, including summaries of other evidence—separately identifying those items the party expects to offer and those it may offer if the need arises.

Tex. R. Civ. Pro. 194.4.

Rule 194’s amendments are based on Federal Rule of Civil Procedure 26(a), which requires the disclosure of basic discovery automatically, without awaiting a discovery request. Under new Rule 194, a party is not excused from making its disclosures because it has not fully investigated the case, because it challenges the sufficiency of another party’s disclosures, or because another party has not made its disclosures. Nor can a party assert a work product privilege to a Required Disclosure. Tex. R. Civ. Pro. 194.5. As with other written discovery responses, Required Disclosures must be signed under Rule 191.3, completed under Rule 193.2, served under Rule 191.5, and timely amended or supplemented under Rule 193.5.

Rule 169: Expedited actions cap increased to $250,000

Previously, certain cases seeking relief of $100,000 or less, including damages, penalties, costs, expenses, pre-judgment interest, and attorney fees were eligible to be resolved on an expedited basis, i.e., with limited discovery (discussed further in this alert’s section on Rule 190) and trial settings within 90 days after discovery ends.

The new rules have increased the number of cases eligible to be resolved on an expedited basis, by increasing the cap from $100,000 to $250,000, excluding interest, statutory or punitive damages and penalties, and attorney fees and costs. Tex. R. Civ. Pro. 169(a). By increasing the expedited actions cap to $250,000 and excluding interest, punitive damages, costs, and fees from the $250,000 limit, the Texas Supreme Court has removed the need for plaintiffs to forecast their expected recovery with precision, making it easier to resolve smaller cases quickly.

In addition to resolving smaller cases quickly, the revised Rule 169 also expedites the resolution of Family Code, Property Code, Tax Code, and CPRC Ch. 74 (medical liability) claims, which were previously ineligible for expedited resolution under Rule 169(a)(2). See Tex. R. Civ. Pro. 169(a).

Rule 47: Claims for relief – the $100,000 categories replaced with $250,000 categories

Consistent with the change to Rule 169, the Texas Rules of Civil Procedure no longer distinguish between suits for less than $100,000 from suits for less than $250,000. Previously, Rule 47(c) required non-Family Code claims for relief to include a statement that the party sought:

  1. Only monetary relief of $100,000 or less;
  2. Monetary relief of $100,000 or less and non-monetary relief;
  3. Monetary relief between $100,000.01 and $250,000;
  4. Monetary relief between $250,000.01 and $1,000,000; or
  5. Monetary relief over $1,000,000.

Under the revised Rule 4(c), only four categories remain, removing the category between $100,000.01 and $250,000:

  1. Only monetary relief of $250,000 or less;
  2. Monetary relief of $250,000 or less and non-monetary relief;
  3. Monetary relief between $250,000.01 and $1,000,000; or
  4. Monetary relief over $1,000,000.

Tex. R. Civ. Pro. 47(c).

By streamlining the categories of relief, new Rule 47(c), like the updated Rule 169, reflects the Texas Supreme Court’s desire to promote the prompt, efficient, and cost-effective resolution of civil actions filed in county courts at law in which the amount in controversy does not exceed $250,000.

Rule 190.2: Updated Level 1 Discovery limitations

Previously, expedited actions and divorces involving $50,000 or less were subject to Level 1 Discovery limitations under Rule 190.2, including (1) discovery beginning when the suit was filed and ending 180 days after the date of the first discovery request; (2) a total of 6 hours per party to examine and cross-examine all witnesses in oral depositions; and (3) the ability, via Requests for Disclosure, to request all documents, information, and tangible items that may be used to support a claim or defense.

New Rule 190.2 applies to suits governed by Rule 169 ($250,000 or less) and suits for divorces which do not involve children and in which a party pleads that the value of the marital estate is more than $0 and less than $250,000. New Rule 190.2 contains the following updates:

  1. Discovery begins when initial disclosures are due and continues for 180 days after that date;
  2. Each party is allotted 20 hours to examine and cross-examine all witnesses in oral depositions; and
  3. Parties are no longer permitted to request “all documents, electronic information, and tangible items that the disclosing party has in its possession, custody or control and may use to support its claims or defenses” as part of its Requests for Disclosure.

Tex. R. Civ. Pro. 190.2.

These changes were enacted to balance the need for lower discovery costs against the discovery needs in these actions.

Rule 190.3: Updated Level 2 Discovery limitations

Rule 190.3 governs the permissible discovery for all cases except those seeking relief of $250,000 or less (the new Rule 190.2) and those a court permits, on a case-by-case basis, to have discovery tailored to the circumstances of the suit (Rule 190.4).

Under new Rule 190.3, discovery begins when initial disclosures are due (as opposed to when suit is filed under the old rules) and continues until:

  1. 30 days before the trial date in Family Code cases; or
  2. In other cases, the earlier of
    1. 30 days before the trial date, or
    2. Nine months after initial disclosures are due.

Tex. R. Civ. Pro. 190.3

Conclusion

As the Texas Rules are amended to reflect more of the substance and practice of the Federal Rules of Civil Procedure, it is critical for practitioners to adapt to the new rules and modify their current discovery practices. While the former practice of waiting for discovery requests may have helped a party buy time, it certainly did not increase the efficient resolution of cases. As these new rules become the standard in Texas, hopefully, we will see a decrease in frivolous litigation and legal gamesmanship that frustrates the purpose of the Texas Rules of Civil Procedure.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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