By JOSEPH SOLIZ THE SOLIZ LAW FIRM, P.L.L.C. 723 Main St., Suite 902 Houston, Texas HMPA CLE LUNCHEON – August 13, 2013 OPPORTUNITIES AND CHALLENGES IN THE NEW TEXAS RULES OF CIVIL PROCEDURE

Relevant background The Soliz Law Firm, P.L.L.C., Managing Member ( ; 2003-present) The Soliz Law Firm, P.L.L.C., Managing Member ( ; 2003-present) Lone Star College – North Harris, Adjunct Professor (Paralegal Studies Program) (2007-present) Lone Star College – North Harris, Adjunct Professor (Paralegal Studies Program) (2007-present) El Paso Corp., Senior Counsel ( ) El Paso Corp., Senior Counsel ( ) Energulf Resources, Inc., Director ( ) Energulf Resources, Inc., Director ( ) Brill, Sinex & Stephenson, Of Counsel ( ) Brill, Sinex & Stephenson, Of Counsel ( ) South Texas College of Law – Adjunct Professor (Oil and Gas Law) ( ) South Texas College of Law – Adjunct Professor (Oil and Gas Law) ( ) Chamberlain, Hrdlicka, White, Williams & Martin - Associate ( ); Partner ( ) Chamberlain, Hrdlicka, White, Williams & Martin - Associate ( ); Partner ( ) Gulf Oil Corporation, Staff Attorney ( ) Gulf Oil Corporation, Staff Attorney ( ) Certified, Oil, Gas & Mineral Law by Texas Bd. Of Legal Specialization (1985 – present) Certified, Oil, Gas & Mineral Law by Texas Bd. Of Legal Specialization (1985 – present) Harvard Law School, J.D. (1979) Harvard Law School, J.D. (1979) Texas State University – San Marcos, B.A. (1976) Texas State University – San Marcos, B.A. (1976) 2

NEW RULES – DISTRICT & COUNTY Courts On February 12, the Texas Supreme Court adopted new new and amended rules of the Texas Rules of Civil Procedure for District and County Courts which: On February 12, the Texas Supreme Court adopted new new and amended rules of the Texas Rules of Civil Procedure for District and County Courts which: (1) allow defendants, for the first time in Texas state court practice, to file the equivalent of a Federal Rule 12(b)(6) motion for dismissal of baseless causes of action, and (2) provide an expedited trial procedure for cases involving less than $100,000 in controversy. (2) provide an expedited trial procedure for cases involving less than $100,000 in controversy. The new rules became effective on March 1, Some of the new rules apply to all new and pending cases as of the effective date, while others apply to new cases only. The new rules became effective on March 1, Some of the new rules apply to all new and pending cases as of the effective date, while others apply to new cases only. 3

New rules – JUSTICE COURTS On April 15, 2103, the Texas Supreme Court adopted new new and amended rules for Justice Courts (abolishing Small Claims Courts in Texas). The new Justice Court rules become effective August 31, They govern cases filed on or after that date, and apply to pending cases, except if unfeasible or work injustice. 4

Claims for relief – 47 Rule 47 now requires a party, in an original pleading that sets forth a claim for relief, to make a more specific statement of the relief sought.Rule 47 now requires a party, in an original pleading that sets forth a claim for relief, to make a more specific statement of the relief sought. Rule 47(c): a claimant must specify a range of monetary relief sought. In a multi-claimant case, each claimant must plead that he or she seeks monetary relief of $100,000 or less for the case to be considered an expedited action.Rule 47(c): a claimant must specify a range of monetary relief sought. In a multi-claimant case, each claimant must plead that he or she seeks monetary relief of $100,000 or less for the case to be considered an expedited action. A party that does not comply with this requirement cannot conduct discovery until his or her pleading is amended to comply.A party that does not comply with this requirement cannot conduct discovery until his or her pleading is amended to comply. 5

Early Dismissal of Meritless Cases: Rule 91a The Basics Under new Rule 91a, a party may move to dismiss a cause of action that has “no basis in law or fact.” A claim has no basis in law if the allegations, taken as true, together with any reasonable inferences, “do not entitle the claimant to relief.” A claim has no basis in fact if “no reasonable person could believe the facts as pleaded.”Under new Rule 91a, a party may move to dismiss a cause of action that has “no basis in law or fact.” A claim has no basis in law if the allegations, taken as true, together with any reasonable inferences, “do not entitle the claimant to relief.” A claim has no basis in fact if “no reasonable person could believe the facts as pleaded.” A motion to dismiss a baseless case under Rule 91a must:A motion to dismiss a baseless case under Rule 91a must: state that it is made pursuant to Rule 91a; identify each cause of action to which it is addressed; and specifically state the reasons that the cause of action has no basis in law, fact, or both. 6

Early Dismissal of Meritless Cases: Rule 91a Timing of Motion A Rule 91a motion must be filed within 60 days after the first pleading that contains the cause of action at issue is served on the movant and at least 21 days before the hearing on the motion. Each party is entitled to 14 days’ notice of the hearing, although the court may decide the motion on the written submissions. The response is due 7 days before the hearing. If the respondent amends the cause of action at least 3 days before the hearing, the movant may withdraw or amend the motion. If the movant amends the motion, the Rule 91a time periods begin again. If the respondent nonsuits at least 3 days before the hearing, the court may not rule on the motion to dismiss. If the respondent’s amendment or nonsuit is not timely, however, the court must rule on the motion and may not consider the amendment or nonsuit.A Rule 91a motion must be filed within 60 days after the first pleading that contains the cause of action at issue is served on the movant and at least 21 days before the hearing on the motion. Each party is entitled to 14 days’ notice of the hearing, although the court may decide the motion on the written submissions. The response is due 7 days before the hearing. If the respondent amends the cause of action at least 3 days before the hearing, the movant may withdraw or amend the motion. If the movant amends the motion, the Rule 91a time periods begin again. If the respondent nonsuits at least 3 days before the hearing, the court may not rule on the motion to dismiss. If the respondent’s amendment or nonsuit is not timely, however, the court must rule on the motion and may not consider the amendment or nonsuit. 7

Early Dismissal of Meritless Cases: Rule 91a Timing of the Court’s Ruling The court must generally rule on the Rule 91a motion within 45 days after its filing. This appears to invite movants to seek mandamus relief if the court fails to timely rule. The court may not consider any evidence in deciding the motion. The court must generally rule on the Rule 91a motion within 45 days after its filing. This appears to invite movants to seek mandamus relief if the court fails to timely rule. The court may not consider any evidence in deciding the motion. 8

Early Dismissal of Meritless Cases: Rule 91a Mandatory Fee Award Except in litigation by or against the government, the prevailing party on a Rule 91a motion is entitled to an award of fees and costs incurred on the challenged cause of action.Except in litigation by or against the government, the prevailing party on a Rule 91a motion is entitled to an award of fees and costs incurred on the challenged cause of action. The trial court must consider evidence in deciding the amount of the mandatory award.The trial court must consider evidence in deciding the amount of the mandatory award. 9

Early Dismissal of Meritless Cases: Rule 91a Application of Rule 91a Rule 91a applies to all cases, including those pending on March 1, 2013, other than cases brought under the Texas Family Code or in inmate litigation.Rule 91a applies to all cases, including those pending on March 1, 2013, other than cases brought under the Texas Family Code or in inmate litigation. 10

Early Dismissal of Meritless Cases: Rule 91a Effect on Order of Pleadings Rule 91a does not affect the order of pleadings under the Texas Rules of Civil Procedure.Rule 91a does not affect the order of pleadings under the Texas Rules of Civil Procedure. A party seeking to make a special appearance or motion to transfer venue must still file those pleadings before filing a Rule 91a motion to dismiss.A party seeking to make a special appearance or motion to transfer venue must still file those pleadings before filing a Rule 91a motion to dismiss. 11

Expedited Actions: Rule 169 The Basics The Basics Cases (other than those filed in Justice Court or brought under the Texas Family Code, Property Code, or Tax Code, or healthcare liability claims brought under Chapter 74 of the Texas Civil Practice & Remedies Code) where the amount of controversy is $100,000 or less (including penalties, costs, expenses and attorney fees) and no non- monetary relief will now be governed by expedited trial procedures, which include streamlined discovery and a trial schedule aimed at swift resolution.Cases (other than those filed in Justice Court or brought under the Texas Family Code, Property Code, or Tax Code, or healthcare liability claims brought under Chapter 74 of the Texas Civil Practice & Remedies Code) where the amount of controversy is $100,000 or less (including penalties, costs, expenses and attorney fees) and no non- monetary relief will now be governed by expedited trial procedures, which include streamlined discovery and a trial schedule aimed at swift resolution. Rule 169 is mandatory, absent the exceptions discussed below.Rule 169 is mandatory, absent the exceptions discussed below. 12

Expedited Actions: Rule 169 Removal of Cases from the Expedited Process Removal of Cases from the Expedited Process Cases must be removed from the expedited process for any of the following reasons:Cases must be removed from the expedited process for any of the following reasons: a claimant amends his or her pleading to seek more than $100,000;a claimant amends his or her pleading to seek more than $100,000; a claimant amends his or her pleading to seek non-monetary relief; ora claimant amends his or her pleading to seek non-monetary relief; or “for good cause shown.”“for good cause shown.” 13

Expedited Actions: Rule 169 The comments to Rule 169 provide some guidance on whether “good cause” exists, which may include:The comments to Rule 169 provide some guidance on whether “good cause” exists, which may include: cases where damages sought by multiple claimants against the same defendant total more than $100,000;cases where damages sought by multiple claimants against the same defendant total more than $100,000; cases where a defendant has filed a compulsory counterclaim in good faith that exceeds $100,000;cases where a defendant has filed a compulsory counterclaim in good faith that exceeds $100,000; cases that require an interpreter; andcases that require an interpreter; and cases where the number of parties and witnesses or the complexity of the legal and factual issues warrants removal from the expedited process.cases where the number of parties and witnesses or the complexity of the legal and factual issues warrants removal from the expedited process. 14

Expedited Actions: Rule 169 Referral of the Expedited Case to ADR Under Rule 169(d), the court may refer the case to ADR unless the parties have agreed not to engage in ADR. The ADR procedure must meet the following parameters:Under Rule 169(d), the court may refer the case to ADR unless the parties have agreed not to engage in ADR. The ADR procedure must meet the following parameters: it may not exceed a half-day in length;it may not exceed a half-day in length; it may not exceed a total cost of twice the amount of the applicable civil filing fees; andit may not exceed a total cost of twice the amount of the applicable civil filing fees; and it must be completed no later than 60 days before the initial trial setting.it must be completed no later than 60 days before the initial trial setting. The parties may agree to engage in a form of ADR other than as provided for in the Rule.The parties may agree to engage in a form of ADR other than as provided for in the Rule. 15

Expedited Actions: Rule 169 Continuances of Expedited Actions A court may continue an expedited case twice, not to exceed a total of 60 days.A court may continue an expedited case twice, not to exceed a total of 60 days. 16

Expedited Actions: Rule 169 Trial of Expedited Actions On any party’s motion, the court must set the case for trial to begin within 90 days after the discovery deadline.On any party’s motion, the court must set the case for trial to begin within 90 days after the discovery deadline. Each side has 8 hours at trial, a change from 5 hours under the previous version of the Rule.Each side has 8 hours at trial, a change from 5 hours under the previous version of the Rule. The court may extend additional time to “no more than 12 hours per side” on motion for good cause.The court may extend additional time to “no more than 12 hours per side” on motion for good cause. 17

Level 1 discovery – All expedited actions are subject to Level 1 discovery and parties may no longer opt out of Level 1 by agreement.All expedited actions are subject to Level 1 discovery and parties may no longer opt out of Level 1 by agreement. Discovery period ends 180 days after the first discovery request is served.Discovery period ends 180 days after the first discovery request is served. Limits interrogatories, requests for production, and requests for admissions to 15 each (down from 25 interrogatories and unlimited production and admissions requests).Limits interrogatories, requests for production, and requests for admissions to 15 each (down from 25 interrogatories and unlimited production and admissions requests). Permits request for disclosure of all documents, electronic information, and tangible items.Permits request for disclosure of all documents, electronic information, and tangible items. 18

Level 1 plan modification – Rule now prohibits the modification of a discovery control plan in an expedited action.Rule now prohibits the modification of a discovery control plan in an expedited action. The Judge may still allow additional discovery in expedited actions if certain conditions are met.The Judge may still allow additional discovery in expedited actions if certain conditions are met.. 19

Medical expenses affidavit – TRE 902(10)(c) New self-authenticating form affidavit for medical expenses.New self-authenticating form affidavit for medical expenses. Custodian of Billing Records.Custodian of Billing Records. To be distinguished from non-billing medical records.To be distinguished from non-billing medical records. 20

Justice courts - Rules Adopted Rules Adopted Rules Repealed Rules and Repealed Rules and Repealed Section (d) of the Texas Property Code pertaining to the time in which a hearing shall be held on a tenant suit seeking certain judicial remedies.Repealed Section (d) of the Texas Property Code pertaining to the time in which a hearing shall be held on a tenant suit seeking certain judicial remedies. All changes are effective August 31, 2013.All changes are effective August 31,

Justice Court – case types Small claims ($10,000 or less, excluding statutory interest and court costs, but including attorneys fees)Small claims ($10,000 or less, excluding statutory interest and court costs, but including attorneys fees) Debt claims (same limits as above)Debt claims (same limits as above) Repair and Remedy (same limits as above)Repair and Remedy (same limits as above) Eviction (possession: rent – same limits as above)Eviction (possession: rent – same limits as above) 22

Application of TRCP and TRE The other Rules of Civil Procedure and the Rules of Evidence do not apply except:The other Rules of Civil Procedure and the Rules of Evidence do not apply except: When the Judge hearing the case determines that a particular rule must be followed to ensure that the proceedings are fair to all parties; orWhen the Judge hearing the case determines that a particular rule must be followed to ensure that the proceedings are fair to all parties; or When otherwise specifically provided by law or the new rules.When otherwise specifically provided by law or the new rules. 23

Judge develops case Rule 500.6:In order to develop the facts of the case, a judge may question a witness or party and may summon any person or party to appear as a witness when the judge considers it necessary to ensure a correct judgment and a speedy disposition.Rule 500.6:In order to develop the facts of the case, a judge may question a witness or party and may summon any person or party to appear as a witness when the judge considers it necessary to ensure a correct judgment and a speedy disposition. No jury trial exception to Rule No jury trial exception to Rule

Pretrial discovery Pretrial discovery is limited to what the Judge considers reasonable and necessary.Pretrial discovery is limited to what the Judge considers reasonable and necessary. Pretrial discovery requests must be presented to the court for approval by written motion.Pretrial discovery requests must be presented to the court for approval by written motion. Pretrial discovery can’t be served unless the Judge issues a signed Order approving the request.Pretrial discovery can’t be served unless the Judge issues a signed Order approving the request. Rule Rule

CONCLUSION Texas lawyers handling cases in state court should consider filing a Rule 91a motion to dismiss if the circumstances support one. Given the 60-day deadline, a relatively prompt decision should be made about the viability of a Rule 91a motion.Texas lawyers handling cases in state court should consider filing a Rule 91a motion to dismiss if the circumstances support one. Given the 60-day deadline, a relatively prompt decision should be made about the viability of a Rule 91a motion. In light of the mandatory fee award provision of Rule 91a, due consideration should be given to the viability of the motion and likelihood that the moving party will prevail.In light of the mandatory fee award provision of Rule 91a, due consideration should be given to the viability of the motion and likelihood that the moving party will prevail. The expedited action rules and the new Justice Court rules should allow resolution of relatively low-dollar cases more efficiently and cost-effectively.The expedited action rules and the new Justice Court rules should allow resolution of relatively low-dollar cases more efficiently and cost-effectively. 26