Chapter 8 

Ancillary Motions and Proceedings

Note:      While this chapter discusses in general many of the motions a family law attorney will file, many of the other chapters of this manual contain specific discussion of specialized motions. Some of these include discovery motions (chapter 5), motions in limine (chapter 19), establishment of parentage (chapter 54), and motions regarding a child (chapter 56).

I.  General Considerations

§ 8.1Requisites of Motion; Service; Electronic Filing

All motions, unless made during a hearing or trial, must be filed in writing with the clerk of the court and state the grounds and relief requested. At the same time, a true copy must be served on all other parties. The motion must be noted on the docket. Tex. R. Civ. P. 21(a). Any plea or pleading mistakenly designated shall, if justice so requires, be treated by the court as if it had been properly designated. Tex. R. Civ. P. 71; In re J.Z.P., 484 S.W.3d 924, 925 (Tex. 2016) (per curiam). An application for an order and notice of any hearing, not presented during a trial or hearing, must be served on all other parties not less than three days before the time specified for the hearing, unless otherwise provided by the rules or shortened by the court. Tex. R. Civ. P. 21(b). The party or attorney of record must certify compliance in writing over signature on the filed motion. Tex. R. Civ. P. 21(d).

Attorneys must electronically file documents in courts where electronic filing has been mandated. Electronic filing is not required by unrepresented parties or by attorneys practicing in courts where electronic filing is not mandated. Tex. R. Civ. P. 21(f)(1). The email address of an attorney or unrepresented party who electronically files must be included on the document. Tex. R. Civ. P. 21(f)(2).

Documents are timely filed if they are filed before midnight. An electronically filed document is deemed filed when transmitted to the filing party’s electronic filing service provider unless the document is transmitted on a Saturday, Sunday, or legal holiday, and then it is deemed filed on the next day that is not a Saturday, Sunday, or legal holi­day. If a document requires a motion and an order allowing its filing, the document is deemed filed on the date the motion is granted. Tex. R. Civ. P. 21(f)(5). If a document is untimely due to a technical failure or system outage, a party may seek appropriate relief from the court, including a reasonable extension of time to complete the filing. Tex. R. Civ. P. 21(f)(6).

An electronic document that is electronically served, filed, or issued by a court or clerk is considered signed if the document contains (1) a “/s/” and name typed in the space where the signature would otherwise appear, unless the document is notarized or sworn; or (2) an electronic image or scanned image of the signature. Tex. R. Civ. P. 21(f)(7).

A document filed electronically under rule 21 must be served electronically through the electronic filing manager if the email address of the party or attorney to be served is on file with the electronic filing manager. If an email address is not on file with the elec­tronic filing manager or the document is not electronically filed, rule 21a allows for ser­vice by commercial delivery service, by mail, by email, or by fax as well as in person. Tex. R. Civ. P. 21a(a)

Service by mail or commercial delivery service shall be complete on deposit of the doc­ument, postpaid and properly addressed, in the mail or with a commercial delivery ser­vice. Service by fax is complete on receipt. Service by fax completed after 5:00 p.m. local time of the recipient is deemed served the next day. Electronic service is complete on transmission of the document to the serving party’s electronic filing provider. Tex. R. Civ. P. 21a(b).

The rule also provides that whenever a party has the right or is required to do some act within a prescribed period after service of notice or other paper on him and the notice or paper is served on him by mail, three days are added to the prescribed period. Tex. R. Civ. P. 21a(c). Service may be on the party or the party’s duly authorized agent or attor­ney of record, as the case may be. Tex. R. Civ. P. 21a(a).

§ 8.2Copies of Motions

If there is more than one other party represented by different attorneys, one copy of the motion must be served on each attorney in charge. Tex. R. Civ. P. 21(c). A party may obtain another copy of the same pleading by paying for the copying and delivery. Tex. R. Civ. P. 21(e). If a party fails to serve on or deliver to the other parties a copy of a motion in accordance with rules 21 and 21a, the court has discretion, after notice and hearing, to order a sanction under rule 215.2(b). Tex. R. Civ. P. 21b.

 

 

 

 

 

 

 

 

[Sections 8.3 through 8.10 are reserved for expansion.]

II.  Attorneys and Judges

§ 8.11Attorney in Charge

Any party may prosecute or defend his rights either in person or by attorney. Tex. R. Civ. P. 7. When a party first appears through an attorney, the attorney whose signature first appears on the initial pleadings for any party is the attorney in charge, unless another attorney is specifically designated in those pleadings. That attorney in charge is responsible for the suit as to that party until the designation is changed by written notice to the court and all other parties in accordance with rule 21a. All communications from the court or from other attorneys about the suit are to be sent to that attorney in charge. Tex. R. Civ. P. 8.

§ 8.12Withdrawal of Attorney

An attorney may withdraw from representing a party only on written motion for good cause shown. Contents of the motion vary depending on whether another attorney is to be substituted. If there will be a substitution, the motion must state the substitute attor­ney’s name, address, telephone number, fax number, and State Bar identification num­ber; that the party approves the substitution; and that the withdrawal is not sought for delay only. If there will be no substitution, the motion must state that a copy of the motion has been delivered to the party, that the party has been notified in writing of his right to object to the motion to withdraw, whether the party consents to the motion, the party’s last known address, and all pending settings and deadlines. Tex. R. Civ. P. 10.

It is an abuse of discretion if the court allows an attorney to withdraw when trial coun­sel has not shown that counsel had taken reasonable steps to avoid foreseeable preju­dice by giving due notice or giving the client time to retain other counsel before seeking permission from the trial court to withdraw from the representation, had delivered to the client all papers and property to which the client was entitled, or had taken any other measures to mitigate the prejudice the client might suffer as a result of the withdrawal of representation. Caddell v. Caddell, 597 S.W.3d 10, 13 (Tex. App.—Houston [14th Dist.] 2020, no pet.) (court allowed withdrawal on day of trial but denied continuance).

COMMENT:      It is advisable to include in this information whether discovery has been requested, whether it was responded to, and a list of any deadlines for responding to or supplementing responses to requested discovery. If these matters are not contained in the motion, the client should be informed in writing.

If the motion is granted, the withdrawing attorney shall immediately give the party writ­ten notification of any additional settings or deadlines the attorney knows about at the time of withdrawal but of which he has not notified the party. The court may impose other conditions if withdrawal is granted. Notice or delivery to a party shall be either made to the party in person or mailed to the party’s last known address by both certified and first-class mail. If the attorney in charge withdraws and another attorney remains or is substituted, a new attorney in charge must be designated and notice given to all other parties in accordance with rule 21a. Tex. R. Civ. P. 10.

The withdrawal of an attorney from a case is governed by Tex. Disciplinary Rules Prof’l Conduct R. 1.15 (1989), reprinted in Tex. Gov’t Code Ann., tit. 2, subtit. G , app. A (West 2013) (Tex. State Bar R. art. X, § 9). That rule describes several situations in which withdrawal may be permitted—for example, in which withdrawal can be accom­plished without material adverse effect on the client’s interests; and in which the client fails substantially to fulfill an obligation to the attorney regarding the attorney’s ser­vices, including an obligation to pay the agreed fee, and has been given reasonable warning that the attorney will withdraw unless the obligation is fulfilled. See Tex. Dis­ciplinary Rules Prof’l Conduct R. 1.15(b). Even if cause exists to withdraw, the attor­ney must continue the representation if ordered to do so by the court. Tex. Disciplinary Rules Prof’l Conduct R. 1.15(c). If withdrawal is granted, the attorney must take steps to a reasonably practicable extent to protect the client’s interests. These steps include giving the client reasonable notice, allowing time for employment of another attorney, surrendering papers and property to which the client is entitled, and refunding any unearned advance fee payments. The attorney may keep papers relating to the client to the extent permitted by other law only if their retention will not prejudice the client in the subject matter of the representation. Tex. Disciplinary Rules Prof’l Conduct R. 1.15(d).

The client should be notified of the motion to withdraw and of the date, time, and place of any hearing in which the court is requested to take action. An order authorizing the withdrawal should be signed by the court. If the attorney fails to give notice of his motion to withdraw and there is no evidence that the client had notice or was aware of the attorney’s withdrawal, no negligence or fault is attributed to the client as cause for failure to be represented at a later hearing. See Robinson v. Risinger, 548 S.W.2d 762, 765 (Tex. App.—Tyler 1977, writ ref’d n.r.e.).

It is reversible error to refuse to allow withdrawal if there is a serious conflict of inter­est, regardless of whether the motion is tardy, the granting of the motion would cause a continuance, or the attorney is at fault for helping to create the situation. See J.W. Hill & Sons v. Wilson, 399 S.W.2d 152, 153–54 (Tex. App.—San Antonio 1966, writ ref’d n.r.e.) (citing previously enacted Canons of Ethics).

COMMENT:      The filing of a withdrawal and substitution of an attorney may expose the new attorney to liability for the actions of all preceding attorneys. The better practice is to file an appearance and designation of lead attorney.

§ 8.13Disqualification of Attorney

A motion to disqualify an attorney should state the reasons for disqualification, and, if the motion is based on a disciplinary rule or ethical consideration, the specific rule should be cited. After notice and hearing, an order should be entered reflecting the court’s ruling. See generally In re Corrugated Container Antitrust Litigation, 659 F.2d 1341 (5th Cir. 1981).

Disciplinary Rules Provide Guidelines:      The Texas Disciplinary Rules of Profes­sional Conduct provide guidelines for a court to review when making its determination regarding disqualification. See In re Epic Holdings, Inc., 985 S.W.2d 41, 48 (Tex. 1998) (orig. proceeding). In spite of the fact that “the disciplinary rules are merely guide­lines—not controlling standards—for disqualification motions,” In re Nitla S.A. de C.V., 92 S.W.3d 419, 422 (Tex. 2002) (per curiam), “it would be injudicious for this court to employ a rule of disqualification that could not be reconciled with the Texas Rules of Professional Conduct.” Ayres v. Canales, 790 S.W.2d 554, 556 n.2 (Tex. 1990) (orig. proceeding). Because the comments to the rules illustrate and explain applica­tions of the rules, they, in addition to case law and the rules themselves, are relevant. In re Robinson, 90 S.W.3d 921, 925 (Tex. App.—San Antonio 2002, orig. proceeding); see also Tex. Disciplinary Rules Prof’l Conduct preamble ¶¶ 7, 10. The Texas Supreme Court has disqualified counsel based on rule 1.09 (see In re Epic Holdings, 985 S.W.2d at 52), even absent a disciplinary violation (see National Medical Enterprises, Inc. v. Godbey, 924 S.W.2d 123, 131 (Tex. 1996) (orig. proceeding), discussed in In re Meador, 968 S.W.2d 346, 350 (Tex. 1998) (orig. proceeding)).

Disqualification is a severe remedy. See Spears v. Fourth Court of Appeals, 797 S.W.2d 654, 656 (Tex. 1990) (orig. proceeding); NCNB Texas National Bank v. Coker, 765 S.W.2d 398, 400 (Tex. 1989) (orig. proceeding). The courts must adhere to an exacting standard when considering motions to disqualify so as to discourage their use as a dila­tory trial tactic. See Spears, 797 S.W.2d at 656. The reviewing court must determine whether the trial court abused its discretion in disqualifying or refusing to disqualify a party’s counsel. See Henderson v. Floyd, 891 S.W.2d 252, 253 (Tex. 1995) (orig. pro­ceeding) (per curiam). The injury to the legal profession from representation of a party by a lawyer who should have been disqualified is presumed harmful. See In re Epic Holdings, 985 S.W.2d at 54; National Medical Enterprises, 924 S.W.2d at 133.

Motion to Disqualify Must Be Timely Made:      A party who fails to file its motion to disqualify opposing counsel in a timely manner waives the complaint, unless reason­able explanation is given. See In re Users System Services, Inc., 22 S.W.3d 331, 337 (Tex. 1999) (orig. proceeding) (explanation given for seven-month delay); In re Epic Holdings, 985 S.W.2d at 52; see also In re Taylor, 67 S.W.3d 530, 534 (Tex. App.—Waco 2002, orig. proceeding) (motion to disqualify filed approximately two months after divorce filed not untimely).

Attorney as Fact Witness:      To prevent such misuse of the rule, the trial court should require the party seeking disqualification to demonstrate actual prejudice to itself result­ing from the opposing attorney’s service in the dual roles. See Ayres, 790 S.W.2d at 558 (citing Tex. Disciplinary Rules Prof’l Conduct R. 3.08 cmt. 10). Under rule 3.08, the moving party must also present evidence that the testimony of the attorney is “neces­sary” and that it goes to an “essential fact” of the nonmovant’s case. See In re A.M., 974 S.W.2d 857, 864 (Tex. App.—San Antonio 1998, no pet.); see also Gilbert McClure Enterprises v. Burnett, 735 S.W.2d 309, 311 (Tex. App.—Dallas 1987, orig. proceed­ing) (stating disqualification not appropriate under this rule when opposing counsel merely announces intention to call attorney as fact witness; there must be genuine need for attorney’s testimony that is material to opponent’s client). Further, if the attorney promptly notifies opposing counsel of his dual role and advises him that disqualification would work a substantial hardship on his client, he may serve as counsel. See In re A.M., 974 S.W.2d at 864; Ayres, 790 S.W.2d at 557.

Rule 3.08 does not prohibit the attorney who may or will be a witness from participat­ing in the preparation of a matter for presentation to a tribunal. See Tex. Disciplinary Rules Prof’l Conduct R. 3.08 cmt. 8. Accordingly, an attorney who is disqualified from representation at trial can continue to participate in the client’s case until trial com­mences; he may continue to assist in pretrial matters such as drafting pleadings, engag­ing in settlement negotiations, and assisting in trial strategy. See Anderson Producing Inc. v. Koch Oil Co., 929 S.W.2d 416, 422 (Tex. 1996). To minimize the possibility of unfair prejudice to an opposing party, the rule only prohibits any testifying lawyer who could not serve as an advocate from taking an active role before the tribunal in the pre­sentation of the matter. In re Bahn, 13 S.W.3d 865, 873 (Tex. App.—Fort Worth 2000, orig. proceeding).

Finally, the testifying attorney’s law firm can continue to represent the client even though the attorney will testify, as long as the client gives informed consent. See Tex. Disciplinary Rules Prof’l Conduct R. 3.08 cmt. 8; see also Anderson Producing, 929 S.W.2d at 424; Spears, 797 S.W.2d at 658. The issue of informed consent is not a mat­ter to be decided by the court at a disqualification hearing but is a matter to be decided between the client and the attorneys. See Anderson Producing, 929 S.W.2d at 424; see also Tex. Disciplinary Rules Prof’l Conduct R. 3.08 cmt. 10 (“[A] lawyer should not seek to disqualify an opposing lawyer under this Rule merely because the opposing lawyer’s dual roles may involve an improper conflict of interest with respect to the opposing lawyer’s client, for that is a matter to be resolved between lawyer and client or in a subsequent disciplinary proceeding.” (emphasis added)).

Representation of Another Party in Matter Adverse to Former Client:       Disciplinary rule 1.09 prohibits a lawyer, without the consent of his former client, from representing another party in a matter adverse to the former client if the lawyer repre­sented the former client in the same matter or a substantially related matter. Tex. Disci­plinary Rules Prof’l Conduct R. 1.09(a)(3); In re Cap Rock Electric Co-op, Inc., 35 S.W.3d 222, 230 (Tex. App.—Texarkana 2000, orig. proceeding). Rule 1.09(b) prohib­its all lawyers in a firm from representing a client that any one of them could not repre­sent because of rule 1.09(a). Tex. Disciplinary Rules Prof’l Conduct R. 1.09(b); In re Epic Holdings, 985 S.W.2d at 52. (Rule 6.05 provides exceptions to the conflicts-of-interest provisions in rule 1.09 for nonprofit and limited pro bono legal services. See Tex. Disciplinary Rules Prof’l Conduct R. 6.05.)

It is not necessary to show that a lawyer personally and substantially participated in the matter. Henderson, 891 S.W.2d at 254. A conclusive presumption arises that lawyers in the same law firm share confidential secrets, and members of a law firm cannot dis­avow access to confidential information of any one attorney’s client. See In re Epic Holdings, 985 S.W.2d at 49; Petroleum Wholesale, Inc. v. Marshall, 751 S.W.2d 295, 300–301 (Tex. App.—Dallas 1988, orig. proceeding) (erection of Chinese wall did not rebut presumption of shared confidences). The reason for this presumption is that it would always be virtually impossible for a former client to prove that attorneys in the same firm had not shared confidences. In re Epic Holdings, 985 S.W.2d at 49; National Medical Enterprises, 924 S.W.2d at 131; Henderson, 891 S.W.2d at 254. In addition, the presumption helps guard the integrity of the legal practice by removing undue sus­picion that clients’ interests are not being fully protected. In re Epic Holdings, 985 S.W.2d at 49.

The movant for disqualification must establish a substantial relationship between the two representations. NCNB Texas National Bank, 765 S.W.2d at 400; In re Cap Rock, 35 S.W.3d at 230. Two matters are “substantially related” within the meaning of rule 1.09 when a genuine threat exists that a lawyer may divulge in one matter confidential information obtained in the other because the facts and issues involved in both are so similar. In re Epic Holdings, 985 S.W.2d at 51.

The movant need not prove an actual disclosure of confidences. The issue is the exis­tence of a genuine threat of disclosure because of the similarity of the matters. In re Epic Holdings, 985 S.W.2d at 51; see also Henderson, 891 S.W.2d at 253–54.

Where knowledge of a client’s confidences has been only imputed to an attorney, that attorney’s departure from a firm will normally remove the imputation of knowledge, and the attorney is free to undertake representation adverse to that client. Tex. Disci­plinary Rules Prof’l Conduct R. 1.09 cmt. 7. Comment 7, however, should not be inter­preted to suddenly permit the use of confidential information to the disadvantage of a former client in violation of rule 1.05(b)(3) after an attorney departs from a firm. Pol­lard v. Merkel, 114 S.W.3d 695, 701 (Tex. App.—Dallas 2003, pet. denied) (trial court abused discretion when it failed to disqualify wife’s attorney after she revealed infor­mation learned from husband’s former lawyer and wife’s attorney’s former employer in her opening argument to jury).

For additional case law on attorney representation of another party in a matter adverse to a former client, see In re Bell Helicopter Textron, Inc., 87 S.W.3d 139 (Tex. App.—Fort Worth 2002, orig. proceeding [mand. denied]).

Joint Defense:      An attorney has a duty under a joint-defense agreement to protect the codefendant’s confidences. See National Medical Enterprises, 924 S.W.2d at 129–32. A written joint-defense agreement is not necessary. Participation in a joint defense could be cause for counsel’s disqualification. This determination is in keeping with the joint-defense privilege found in rule 503(b)(1)(C) of the Texas Rules of Evidence, which does not require that written agreement exist in order for confidential communi­cations to be protected under the rule. See In re Skiles, 102 S.W.3d 323, 326 (Tex. App.—Beaumont 2003, orig. proceeding) (per curiam); see also Tex. R. Evid. 503(b)(1)(C).

Legal Assistant Who Has Worked for Opposing Counsel:      The presumption that a legal assistant obtained confidential information is not rebuttable; the presumption that information was shared with a new employer may be overcome. In this regard, the courts have recognized a distinction between lawyers and nonlawyers. The courts were motivated to create this distinction by a concern that the mobility of a nonlawyer could be unduly restricted.

The only way the rebuttable presumption can be overcome is (1) to instruct the legal assistant “not to work on any matter on which the paralegal worked during the prior employment, or regarding which the paralegal has information relating to the former employer’s representation” and (2) to “take other reasonable steps to ensure that the paralegal does not work in connection with matters on which the paralegal worked during the prior employment, absent client consent.” These precautions minimize the danger that a legal assistant will convey inappropriate information, even inadvertently. In re American Home Products Corp., 985 S.W.2d 68, 74–75 (Tex. 1998) (orig. pro­ceeding) (disqualification of firm required because plaintiffs did not rebut presumption that legal assistant shared confidential information received while previously working on underlying litigation at opposing counsel’s firm with members of their firm); Grant v. Thirteenth Court of Appeals, 888 S.W.2d 466, 467–68 (Tex. 1994) (orig. proceeding) (per curiam) (law firm disqualified because it temporarily employed legal secretary who had previously worked for opposing counsel); Phoenix Founders, Inc. v. Marshall, 887 S.W.2d 831, 834 (Tex. 1994) (orig. proceeding) (paralegal or legal assistant who has worked on case “must be subject to . . . a conclusive presumption that confidences and secrets were imparted”).

Receipt of Privileged Documents:      To determine whether an attorney who received an opponent’s privileged documents by means other than discovery should be disquali­fied, the trial court should consider—

1.whether the attorney knew or should have known that the material was priv­ileged;

2.the promptness with which the attorney notifies the opposing side that he or she has received its privileged information;

3.the extent to which the attorney reviews and digests the privileged informa­tion;

4.the significance of the privileged information—the extent to which its dis­closure may prejudice the movant’s claim or defense and the extent to which return of the documents will mitigate that prejudice;

5.the extent to which the movant may be at fault for the unauthorized disclo­sure; and

6.the extent to which the nonmovant will suffer prejudice from the disqualifi­cation of his or her attorney.

In re Meador, 968 S.W.2d at 351–52; In re Marketing Investors Corp., 80 S.W.3d 44, 51 (Tex. App.—Dallas 1998, orig. proceeding) (trial court abused discretion in not dis­qualifying attorney for not returning privileged documents).

Anticontact Rule:      Rule 4.02(a) prohibits a lawyer from initiating or even orchestrat­ing through another individual any contact with a represented person unless that per­son’s attorney consents to the contact. Tex. Disciplinary Rules Prof’l Conduct R. 4.02(a). This rule does not apply, however, when the represented person is seeking a second opinion from another lawyer. Tex. Disciplinary Rules Prof’l Conduct R. 4.02(d).

Any person represented by counsel may terminate that representation. When this occurs, the lawyer is free to communicate with the now-unrepresented person within the guidelines of rule 4.03. See Tex. Disciplinary Rules Prof’l Conduct R. 4.03. How­ever, the communicating attorney is obligated to resist the temptation to give advice in this situation, other than to advise the unrepresented party to obtain independent coun­sel. See Tex. Comm. on Professional Ethics, Op. 461 (1989); Tex. Disciplinary Rules Prof’l Conduct R. 4.03 cmt. 1; Barbara Hanson Nellermoe & Fidel Rodriguez, Jr., Pro­fessional Responsibility and the Litigator: A Comprehensive Guide to Texas Disci­plinary Rules 3.01 Through 4.04, 28 St. Mary’s L.J. 443, 496 (1997).

As a practical matter, a sensible course for the communicating lawyer would generally be to confirm whether in fact the representing lawyer has been effectively discharged. For example, the lawyer might ask the person to provide evidence that the lawyer has been dismissed. The communicating lawyer can also contact the representing lawyer directly to determine whether he has been informed of the discharge. The communicat­ing lawyer may also choose to inform the person that he does not wish to communicate further until he gets another lawyer. See In re News America Publishing, Inc., 974 S.W.2d 97, 103 (Tex. App.—San Antonio 1998, orig. proceeding) (trial court abused discretion in not disqualifying law firm for violating anticontact rule).

Collaborative Agreement:      A final basis of disqualification of an attorney exists when a collaborative law agreement has been entered into by the parties. With a few exceptions, a collaborative lawyer and a lawyer in a firm with which the collaborative lawyer is associated are disqualified from appearing in court to represent a party in a proceeding related to the collaborative family law matter. This disqualification gener­ally does not apply to the lawyer’s making a request that the court approve an agree­ment resulting from the collaborative family law process or his seeking or defending an emergency order to protect a party or family. See Tex. Fam. Code §§ 15.106–.108.

§ 8.14Attorney’s Authority

If a party files a sworn written motion stating that he believes the suit or proceeding is being prosecuted or defended without authority, the attorney for the other party will be cited to appear before the court and show his authority to act. Notice of the motion must be served on the challenged attorney at least ten days before the hearing. The burden of proof is on the challenged attorney to show sufficient authority to prosecute or defend the suit. If he fails to do so, the court shall refuse to permit him to appear in the case and shall strike the pleadings if no one authorized to prosecute or defend the suit appears. The motion may be heard any time before the parties have announced ready for trial, but the trial shall not be unnecessarily continued or delayed for the hearing. Tex. R. Civ. P. 12.

§ 8.15Motion to Recuse or Disqualify Judge

Rule 18a governs motions to recuse or disqualify a trial court judge. See Tex. R. Civ. P. 18a.

A motion to recuse is to be filed as soon as practicable after the movant knows of the ground stated in the motion and must be filed at least ten days before the date set for trial or hearing unless, before that day, the movant neither knew nor reasonably should have known that the judge would preside at the trial or hearing or that the ground stated in the motion existed. Tex. R. Civ. P. 18a(b)(1); see Byars v. Evans, No. 07-14-00064-CV, 2016 WL 105671, at *3–4 (Tex. App.—Amarillo Jan. 8, 2016, no pet.) (mem. op.). A motion to disqualify should be filed as soon as practicable after the movant knows of the ground stated in the motion. Tex. R. Civ. P. 18a(b)(2).

The motion must state one or more of the grounds for removal listed in rule 18b and may not be based solely on the judge’s rulings in the case. It must be verified and must state the grounds with particularity. The motion is to be made on personal knowledge and must set forth facts that would be admissible in evidence and that, if proved, would be sufficient to justify removal, provided that facts may be stated on information and belief if the basis for the belief is specifically stated. Tex. R. Civ. P. 18a(a).

A party may waive recusal if it is not raised in a proper motion. McElwee v. McElwee, 911 S.W.2d 182, 185–86 (Tex. App.—Houston [1st Dist.] 1995, writ denied); Humble Exploration Co. v. Browning, 677 S.W.2d 111, 114 (Tex. App.—Dallas 1984, writ ref’d n.r.e.). The procedural requirements for recusal set out in rule 18a of the Texas Rules of Civil Procedure are mandatory, and a party who fails to follow these requirements waives his right to complain of a judge’s failure to recuse himself. Pena v. Pena, 986 S.W.2d 696, 701 (Tex. App.—Corpus Christi–Edinburg 1998), pet. denied per curiam, 8 S.W.3d 639 (Tex. 1999).

Any party may file a response before the motion is heard, but the judge should not file a response. Tex. R. Civ. P. 18a(c). A party who files a motion or response must serve a copy on every other party; the method of service must be the same as the method of fil­ing, if possible. Tex. R. Civ. P. 18a(d). The clerk of the court must immediately deliver a copy of the motion or response to the judge and to the presiding judge of the adminis­trative judicial district (the regional presiding judge). Tex. R. Civ. P. 18a(e)(1).

Within three business days after the motion is filed, and regardless of whether the motion complies with the rule, the judge shall either recuse or disqualify himself or refer the motion to the regional presiding judge. Tex. R. Civ. P. 18a(f)(1). When the judge signs an order of recusal or referral, the clerk must immediately deliver a copy to the regional presiding judge. Tex. R. Civ. P. 18a(e)(2). If the motion was filed before evidence has been offered at trial, the judge may take no further action in the case until the motion has been decided, except for good cause stated in writing or on the record. Tex. R. Civ. P. 18a(f)(2)(A). If the motion was filed after evidence has been offered, the judge may proceed, subject to stay by the regional presiding judge. Tex. R. Civ. P. 18a(f)(2)(B). If the judge fails to comply with a duty imposed by rule 18a, the movant may notify the regional presiding judge. Tex. R. Civ. P. 18a(f)(3).

The regional presiding judge must rule on a referred motion or assign a judge to rule. The ruling must be by written order. A motion to recuse that does not comply with rule 18a may be denied without an oral hearing, but a motion to disqualify may not be denied on the ground that it was not filed or served in compliance with the rule. Interim or ancillary orders in the pending case may be issued. Discovery may not be required of the respondent judge except on order of the regional presiding judge or assigned judge. The motion must be heard as soon as practicable and may be heard immediately after it is referred. Notice of the hearing must be given to all parties. The hearing may be con­ducted by telephone on the record, and documents submitted by fax or email may be considered. If the motion is granted, the regional presiding judge must transfer the case to another court or assign another judge to the case. Tex. R. Civ. P. 18a(g).

After notice and hearing, the judge who hears the motion may order the party or attor­ney who filed the motion, or both, to pay the reasonable attorney’s fees and expenses incurred by other parties if the judge finds that the motion was groundless and filed in bad faith or for the purpose of harassment or that it was clearly brought for unnecessary delay and without sufficient cause. Tex. R. Civ. P. 18a(h).

A “tertiary recusal motion” means a third or subsequent motion for recusal or disquali­fication filed against a district court or statutory county court judge by the same party in a case. Tex. Civ. Prac. & Rem. Code § 30.016(a); see Gonzalez v. Guilbot, 315 S.W.3d 533, 541 (Tex. 2010) (text of statute does not mean third recusal motion against same judge).

A judge who declines recusal after a tertiary recusal motion is filed shall comply with applicable rules of procedure for recusal and disqualification, except that the judge shall continue to preside over the case, sign orders in the case, and move the case to final dis­position as though a tertiary recusal motion had not been filed. Tex. Civ. Prac. & Rem. Code § 30.016(b).

A judge hearing a tertiary recusal motion against another judge who denies the motion shall award reasonable and necessary attorney’s fees and costs to the party opposing the motion. The party making the motion and that party’s attorney are jointly and severally liable for the award of fees and costs, which must be paid before the thirty-first day after the date the order denying the tertiary recusal motion is rendered, unless the order is properly superseded. Tex. Civ. Prac. & Rem. Code § 30.016(c).

The denial of a tertiary recusal motion is reviewable only on appeal from final judg­ment. Tex. Civ. Prac. & Rem. Code § 30.016(d). If a tertiary recusal motion is finally sustained, the new judge assigned to the case shall vacate all orders signed by the sitting judge during the pendency of the tertiary recusal motion. Tex. Civ. Prac. & Rem. Code § 30.016(e).

Denial of a motion to recuse may be reviewed only for abuse of discretion on appeal from the final judgment, but an order granting the motion is final and not reviewable by any means. An order granting or denying a motion to disqualify may be reviewed by mandamus and may be appealed. Tex. R. Civ. P. 18a(j).

The Texas Constitution prescribes disqualification if a judge has an interest, is related to a party within the third degree of consanguinity or affinity, or has previously been an attorney in the case. See Tex. Const. art. V, § 11. The Texas Government Code pre­scribes disqualification if the judge is related to either party within the third degree of consanguinity or affinity, as determined under Government Code chapter 573. See Tex. Gov’t Code § 21.005.

The Texas Rules of Civil Procedure provide that a judge must disqualify himself in all proceedings in which he has served as an attorney in the matter in controversy or an attorney with whom he previously practiced law served during their association as an attorney concerning the matter, or if the judge knows that he has an interest in the sub­ject matter in controversy either individually or as a fiduciary, or if either of the parties may be related to him by affinity or consanguinity within the third degree. Tex. R. Civ. P. 18b(a). A judge must recuse himself in proceedings in which (1) his impartiality might reasonably be questioned; (2) he has a personal bias or prejudice concerning the subject matter or a party or has personal knowledge of disputed evidentiary facts con­cerning the proceeding; (3) he or an attorney with whom he previously practiced has been a material witness concerning the proceeding; (4) he participated in the matter in controversy as attorney, adviser, or material witness or expressed an opinion concerning its merits while a government attorney; (5) he knows that he (individually or as a fidu­ciary) or his spouse or minor child living in his household has a financial interest in the subject matter or in a party or has any other interest that could be substantially affected by the outcome of the proceeding; (6) he or his spouse, or a person within the third degree of relationship to either of them, or the spouse of such a person, is a party or an officer, director, or trustee of a party, is known by the judge to have an interest that could be substantially affected by the outcome of the proceeding, or is to the judge’s knowledge likely to be a material witness in the proceeding; or (7) he or his spouse, or a person within the first degree of relationship to either of them, or the spouse of such a person, is an attorney in the proceeding. Tex. R. Civ. P. 18b(b).

Rule 16 of the Texas Rules of Appellate Procedure covers recusal or disqualification of appellate judges. See Tex. R. App. P. 16. A motion must be filed promptly after the fil­ing party has reason to believe the justice or judge should not participate in deciding the case. Tex. R. App. P. 16.3(a). The justice must either recuse himself or certify the matter to the entire court for consideration, during which the challenged justice shall not sit. Tex. R. App. P. 16.3(b). An order of recusal is not appealable; a denial of a recusal motion is appealable. Tex. R. App. P. 16.3(c).

A justice or judge must recuse on grounds provided in the Texas Rules of Civil Proce­dure, as well as in a proceeding that presents a material issue that the justice or judge participated in deciding while serving on another court in which the proceeding was pending. Tex. R. App. P. 16.2.

§ 8.16Trial before Assigned Judge

The Court Administration Act, chapter 74 of the Government Code, divides the state into nine administrative judicial regions and empowers the presiding judge of each region to assign visiting judges to the courts in the region. See Tex. Gov’t Code ch. 74; In re Canales, 52 S.W.3d 698, 701 (Tex. 2001) (orig. proceeding). Section 74.053 of the Act allows the parties to a civil case to object to an assigned judge and sets out the procedure for doing so:

(a)When a judge is assigned to a trial court under this chapter:

(1)the order of assignment must state whether the judge is an active, former, retired, or senior judge; and

(2)the presiding judge shall, if it is reasonable and practicable and if time permits, give notice of the assignment to each attorney rep­resenting a party to the case that is to be heard in whole or part by the assigned judge.

(b)If a party to a civil case files a timely objection to the assignment, the judge shall not hear the case. Except as provided by Subsection (d), each party to the case is only entitled to one objection under this sec­tion for that case.

(c)An objection under this section must be filed not later than the seventh day after the date the party receives actual notice of the assignment or before the date the first hearing or trial, including pretrial hearings, commences, whichever date occurs earlier. The presiding judge may extend the time to file an objection under this section on written motion by a party who demonstrates good cause.

(d)An assigned judge or justice who was defeated in the last primary or general election for which the judge or justice was a candidate for the judicial office held by the judge or justice may not sit in a case if either party objects to the judge or justice.

(e)An active judge assigned under this chapter is not subject to an objec­tion.

(f)For purposes of this section, notice of an assignment may be given and an objection to an assignment may be filed by electronic mail.

(g)In this section, “party” includes multiple parties aligned in a case as determined by the presiding judge.

Tex. Gov’t Code § 74.053. See also Mitchell Energy Corp. v. Ashworth, 943 S.W.2d 436 (Tex. 1997) (orig. proceeding).

A party may not object to an assigned judge before the assignment is made, and a pro forma blanket objection in the party’s initial pleading is not sufficient. In re Carnera, No. 05-16-00055-CV, 2016 WL 323654, at *2 (Tex. App.—Dallas Jan. 27, 2016, orig. proceeding) (mem. op.).

If an objection is timely, the assigned judge’s disqualification is automatic. Tex. Gov’t Code § 74.053(b). When an assigned judge overrules a timely objection to his assign­ment, all of the judge’s subsequent orders are void, and the objecting party is entitled to mandamus relief. In re Canales, 52 S.W.3d at 701.

The assigned judge must have a valid assignment. When an assigned judge’s action exceeds the scope of the assignment, the judgment is void. Ex parte Eastland, 811 S.W.2d 571, 572 (Tex. 1991) (orig. proceeding) (per curiam); In re B.F.B., 241 S.W.3d 643, 647 (Tex. App.—Texarkana 2007, no pet.) (after denying motion to recuse, assigned judge went forward with trial on merits although assignment order limited assignment “for the purpose of the assigned judge hearing a Motion to Recuse”).

§ 8.17Associate Judge

The judge of a court having jurisdiction of suits under title 1, 4, or 5 or chapter 45 of the Texas Family Code may appoint a full-time or part-time associate judge if the commis­sioners court of a county in which the court has jurisdiction has authorized employment of an associate judge. Tex. Fam. Code § 201.001(a). The judge may refer to the associ­ate judge any aspect of a suit involving a matter in the court’s jurisdiction under title 1, 4, or 5 or chapter 45, including any matter ancillary to the suit. Tex. Fam. Code § 201.005(a).

A party must file an objection to an associate judge hearing a trial on the merits or pre­siding at a jury trial not later than the tenth day after the date the party receives notice that the associate judge will hear the trial. If an objection is filed, the referring court must hear the trial on the merits or preside at a jury trial. Tex. Fam. Code § 201.005(c).

Hearing before Judge:      Any party may request a de novo hearing before the referring court by filing with the clerk of the referring court a written request not later than the third working day after the date the party receives notice of the substance of (1) the associate judge’s report or (2) the rendering of the temporary order, if the request con­cerns a temporary order rendered by an associate judge appointed under subchapter A, chapter 201, of the Family Code. Tex. Fam. Code § 201.015(a). Request for a de novo hearing under subchapter B of chapter 201 of the Family Code (title IV-D associate judges) must be filed not later than the third working day after the associate judge signs the proposed order or judgment. Tex. Fam. Code § 201.1042(b). See In re R.A.O., 561 S.W.3d 704, 710 (Tex. App.—Houston [14th Dist.] 2018, no pet.). In calculating the period, the Code Construction Act rather than rule 4 of the Texas Rules of Civil Proce­dure applies in cases involving the appeal of an associate judge’s report. See Peacock v. Humble, 933 S.W.2d 341, 343 (Tex. App.—Austin 1996, orig. proceeding) (per curiam). In calculating the period under the applicable Code Construction Act provi­sions, the first day is excluded, and the last day is included. Tex. Gov’t Code § 311.014. The right to a de novo hearing before the referring court may be waived. However, any waiver must be made in writing or on the record before the start of a hearing by an asso­ciate judge. Tex. Fam. Code § 201.015(g); see In re J.A.P., 510 S.W.3d 722, 724 (Tex. App.—San Antonio 2016, no pet.) (nothing in record indicated right to de novo hearing was waived before start of hearing, and waiver of any objection to associate judge hear­ing case was not waiver of de novo hearing).

A request for a de novo hearing must specify the issues that will be presented to the referring court. Tex. Fam. Code § 201.015(b). Notice must be given to the opposing attorney. Tex. Fam. Code § 201.015(d). The referring court, after notice to the parties, must hold the de novo hearing within thirty days of the filing of the initial request. Tex. Fam. Code § 201.015(f). The requirement of a de novo hearing within thirty days is not jurisdictional and does not prohibit a referring court from conducting such a hearing more than thirty days after the filing of the request. See Harrell v. Harrell, 986 S.W.2d 629, 631 (Tex. App.—El Paso 1998, no pet.). Even if timely filed, if the notice of appeal did not contain the appealing party’s objections to any specific findings or con­clusions, that party is not entitled to a de novo hearing of the appeal of the associate judge’s recommendation. In re E.M., 54 S.W.3d 849, 851–52 (Tex. App.—Corpus Christi–Edinburg 2001, no pet.) (party not entitled to de novo hearing because his request, though timely filed, failed to state specific findings or conclusions of associate judge to which he objected); In re H.F., No. 02-16-00347-CV, 2016 WL 6706324 (Tex. App.—Fort Worth Nov. 14, 2016, orig. proceeding) (mem. op.).

At the de novo hearing the parties may present witnesses and the referring court may also consider the record from the hearing before the associate judge. Tex. Fam. Code § 201.015(c); In re N.V., 554 S.W.3d 217, 221 (Tex. App.—Amarillo 2018, pet. denied). The court may not limit the evidence at the de novo hearing to only the tran­script of the hearing in front of the associate judge. The referring court must hold a hearing in which the parties may present witnesses, should they choose to do so. In re R.R., 537 S.W.3d 621, 624 (Tex. App.—Austin 2017, orig. proceeding). If a jury trial was waived at the trial in front of the associate judge the court may, but is not required to, grant a jury trial at the de novo hearing. In re A.L.M.-F., 593 S.W.3d 271 (Tex. 2019).

Except as provided by Family Code section 201.007(c) (default, agreed, or temporary orders or final order where notice, appearance, or right to de novo hearing is waived), if a request for a de novo hearing before the referring court is not timely filed, the pro­posed order or judgment of the associate judge becomes the order or judgment of the referring court only on the referring court’s signing the proposed order or judgment. Tex. Fam. Code § 201.013(b); see also Tex. Fam. Code § 201.007(c). If the record does not reflect that the waiver of the de novo hearing was signed before the hearing in front of the associate judge, the report of the associate judge is not a rendition for purposes of preventing a nonsuit of the case. Alwazzan v. Alwazzan, 596 S.W.3d 789, 804 (Tex. App.—Houston [1st Dist.] 2018, pet. denied). Pending a de novo hearing before the referring court, a proposed order or judgment of the associate judge is in full force and effect and is enforceable as an order or judgment of the referring court, except for an order providing for the appointment of a receiver. Tex. Fam. Code § 201.013(a). Sec­tion 201.013(c) concerns orders by an associate judge for the temporary detention or incarceration of a witness or party. See Tex. Fam. Code § 201.013(c). A party’s failure to request, or a party’s waiver of the right to request, a de novo hearing before the refer­ring court does not deprive the party of the right to appeal to or seek other relief from an appellate court. Tex. Fam. Code § 201.016(a).

The denial of relief to a party after a de novo hearing under section 201.015 or a party’s waiver of the right to a de novo hearing before the referring court does not affect a party’s right to file a motion for new trial, motion for judgment notwithstanding the ver­dict, or other posttrial motion. A party may not demand a second jury in a de novo hear­ing before the referring court if the associate judge’s proposed order or judgment resulted from a jury trial. Tex. Fam. Code § 201.015(h), (i).

 

 

 

 

[Sections 8.18 through 8.20 are reserved for expansion.]

III.  Service of Citation

§ 8.21Substituted Service—Rule 106

If personal service, service by registered mail, or service by certified mail has been unsuccessful, substituted service may be allowed. The record must show strict compli­ance with the rules governing service of process. See Primate Construction, Inc. v. Sil­ver, 884 S.W.2d 151, 152 (Tex. 1994) (per curiam); Singh v. Gill, No. 05-19-01146-CV, 2021 WL 194114, at *3 (Tex. App.—Dallas Jan. 20, 2021, no pet. h.) (mem. op.). A statement—sworn to before a notary or made under penalty of perjury—must be attached to a motion for substituted service listing any location where the defendant can probably be found and stating specific facts showing that service has been unsuccess­fully attempted by personal delivery or by registered or certified mail at this location. An affidavit must “positively and unqualifiedly represent the facts as disclosed in the affidavit to be true and within the affiant’s personal knowledge.” In re M.M.M.A., 583 S.W.3d 632, 636 (Tex. App.—El Paso 2018, no pet.). The court may then authorize ser­vice by leaving a copy of the citation and of the petition with anyone older than sixteen at the location specified in the statement or in any other manner, including electroni­cally by social media, email, or other technology, that the statement or other evidence shows will be reasonably effective to give the defendant notice. Tex. R. Civ. P. 106(b). In determining whether to permit electronic service of process, a court should consider whether the technology actually belongs to the defendant and whether the defendant regularly uses or recently used the technology. Tex. R. Civ. P. 106 cmt.

COMMENT:      The amendment to rule 106 of the Texas Rules of Civil Procedure effec­tive January 1, 2021, replaced the requirement of an affidavit with that of a statement sworn before a notary or made under penalty of perjury.

The object of process is to give a person to be affected by a judgment notice and an opportunity to defend. Whether due process of law has been accorded depends on whether or not the form of service is reasonably calculated to give the defendant actual notice and an opportunity to be heard. See Sgitcovich v. Sgitcovich, 241 S.W.2d 142, 146–48 (1951). An officer’s affidavit stating that service has been “difficult or impracti­cal” is not sufficient to sustain the granting of a motion for substituted service. Style­mark Construction, Inc. v. Spies, 612 S.W.2d 654, 656–57 (Tex. App.—Houston [14th Dist.] 1981, no writ); see also Harrison v. Dallas Court Reporting College, 589 S.W.2d 813, 815–16 (Tex. App.—Dallas 1979, no writ) (sheriff’s affidavit stating that he had “made several attempts” to serve defendant but not showing how many attempts or at what time they were made was insufficient to establish that personal service was impractical; therefore, substituted service was unauthorized, and no personal jurisdic­tion over defendant was acquired). See also Cancino v. Cancino, No. 03-14-00115-CV, 2016 WL 234514 (Tex. App.—Austin Jan. 13, 2016, no pet.) (mem. op.). An affidavit showing three attempts at service to an address where the appellant’s car was present and a young woman told the process server the appellant was not home was held to be sufficient to sustain service under rule 106. In re C.L.W., 485 S.W.3d 537, 542 (Tex. App.—San Antonio 2015, no pet.).

§ 8.22Other Substituted Service—Rule 109a

The court may, on motion, prescribe a different method of substituted service whenever citation by publication is authorized. Tex. R. Civ. P. 109a. (Regarding citation by publi­cation, see Tex. R. Civ. P. 109; Tex. Fam. Code §§ 3.305, 6.409, 102.010; Tex. Civ. Prac. & Rem. Code § 17.032.) To prescribe a different method of substituted service, the court must find and recite in its order that the prescribed method would be as likely as publication to give the defendant actual notice. The officer’s return shall state partic­ularly the manner in which service is accomplished, and any return receipt or other evi­dence showing the result of service must be attached. The defendant’s failure to respond shall not render the service invalid. If the defendant does not appear, provisions of rule 244, which require appointment of an attorney to defend the suit on the defendant’s behalf and a statement of evidence approved and signed by the judge, apply; rule 329, which deals with motions for new trials and judgments following citation by publica­tion, also applies. Tex. R. Civ. P. 109a; see Tex. R. Civ. P. 244, 329.

§ 8.23Amending Citation—Rule 118

If there is a defect in the process or proof of service, a motion may be brought to amend the process or proof of service. At any time in its discretion and on such notice and terms as it deems just, the court may allow any process or proof of service to be amended, unless it clearly appears that material prejudice would result to the substantial rights of the party against whom the process issued. Tex. R. Civ. P. 118. Amending a proof of service after a motion for new trial is filed does not have the effect of restarting the appellate timetable. In re Spinks, No. 04-19-00785-CV, 2020 WL 86214, at *3 (Tex. App.—San Antonio Jan. 8, 2020, no pet.) (mem. op.).

§ 8.24Service of Amended Petition

When a petition is amended to ask for more onerous relief, the amended petition may be served under rule 21a of the Texas Rules of Civil Procedure. In re E.A., 287 S.W.3d 1, 4 (Tex. 2009).

 

 

 

 

 

 

[Sections 8.25 through 8.30 are reserved for expansion.]

IV.  Judicial Notice and Joinder of Causes

§ 8.31Judicial Notice

Rule 203 of the Texas Rules of Evidence provides a method by which a party may request the trial court to determine the law of a foreign country. The requesting party must give notice in the pleadings or by other reasonable written notice and, at least thirty days before trial, provide all parties copies of any written materials or sources intended for use as proof of the foreign law. Tex. R. Evid. 203(a). If the materials are in a language other than English, the party intending to rely on them must supply all par­ties copies of both the foreign language text and the English translation. Tex. R. Evid. 203(b). (Subsections (a) and (b) of rule 203 do not apply to an action to which rule 308b of the Texas Rules of Civil Procedure (Determining the Enforceability of a Judgment or Arbitration Award Based on Foreign Law in Certain Suits under the Family Code) applies. Tex. R. Evid. 203(e).)

In determining the foreign law, the court may consider any material or source, whether or not admissible. If the court considers any material or source not submitted by a party, it must give all parties notice and reasonable opportunity to comment and submit addi­tional materials. Tex. R. Evid. 203(c).

A court may on its own, or must if a party requests it and the court is supplied with the necessary information, take judicial notice of the constitutions, public statutes, rules, regulations, ordinances, court decisions, and common law of every other U.S. state, ter­ritory, or jurisdiction and of the ordinances of Texas municipalities and counties, the contents of the Texas Register, and agency rules published in the Texas Administrative Code. The court may require the requesting party to notify all other parties of the request so they may respond to it. Tex. R. Evid. 202(a), (b), (c)(1), 204(a), (b), (c)(1).

The court, not the jury, must determine the law of which it is taking judicial notice, and the court’s determination must be treated as a ruling on a question of law. Tex. R. Evid. 202(e), 203(d), 204(d).

§ 8.32Severance

Actions improperly joined may be severed. Each ground of recovery that has been improperly joined may be docketed as a separate suit between the same parties by court order on the motion of any party or on the court’s own initiative. Severance may occur at any stage of the action before submission to the jury or to the court and on such terms as the court deems just. Any claim against a party may be severed. Tex. R. Civ. P. 41.

Severance is proper if a suit involves two or more separate and independent causes of action, each of which may be tried as a separate claim. See Rose v. Baker, 183 S.W.2d 438, 441 (Tex. 1944). Severance divides lawsuits into two or more independent causes of action, and a judgment that disposes of all parties and issues in one of the severed causes is final and appealable. Hall v. City of Austin, 450 S.W.2d 836, 837–38 (Tex. 1970). A trial court may not sever property issues from a cause of action for divorce. Garrison v. Texas Commerce Bank, 560 S.W.2d 451, 453 (Tex. App.—Houston [1st Dist.] 1977, writ ref’d n.r.e.). The issue of parties’ property rights is part of the divorce suit itself and cannot be severed from it. Angerstein v. Angerstein, 389 S.W.2d 519, 520–21 (Tex. App.—Corpus Christi–Edinburg 1965, no writ). It is not error to sever a personal injury claim involving separate property issues. See Johnson v. Johnson, No. 09-19-00329-CV, 2021 WL 1306396, at *5–6 (Tex. App.—Beaumont Apr. 8, 2021, no pet. h.) (mem. op.). If a motion for severance is granted, an order should be entered and a new docket number assigned to the cause or causes severed.

§ 8.33Consolidation

When actions involve a common question of law or of fact, the trial court may order a joint hearing or trial on any or all the matters, order all the actions consolidated, and make such other orders as may tend to avoid unnecessary costs or delay. Tex. R. Civ. P. 174(a); see Alice National Bank v. Corpus Christi Bank & Trust, 431 S.W.2d 611, 624 (Tex. App.—Corpus Christi–Edinburg 1968), aff’d, 444 S.W.2d 632 (Tex. 1969) (where both cases involved same subject matter and parties, motion to consolidate granted).

Because the Texas Rules of Civil Procedure provide the courts with broad discretion in the matter of consolidation, agreements of counsel to consolidate causes are not binding on the court. Hamilton v. Hamilton, 280 S.W.2d 588, 591 (Tex. 1955). The court’s deci­sion to consolidate causes will not be disturbed on appeal except for abuse of discretion. See Ruthart v. First State Bank, 431 S.W.2d 366, 368 (Tex. App.—Amarillo 1968, writ ref’d).

§ 8.34Separate Trial

The court may, for convenience or to avoid prejudice, order a separate trial of any claim, cross-claim, counterclaim, or third-party claim or issue or of any separate issue or of any number of claims, cross-claims, counterclaims, third-party claims, or issues. Tex. R. Civ. P. 174(b).

Rule 174(b) should not be confused with rule 41, which deals with severance. See Tex. R. Civ. P. 41. Severance divides a case into two or more separate and independent causes, with each cause resulting in its own final, appealable judgment. When separate trials are ordered, the lawsuit is not severed, but the court can hear and determine one or more issues without trying all controverted issues at the same hearing. Generally, until all matters are disposed of, orders entered at the conclusion of a separate trial are inter­locutory and not appealable. Hall v. City of Austin, 450 S.W.2d 836, 838 (Tex. 1970) (per curiam); Wright v. Payne, No. 02-19-00147-CV, 2019 WL 6003243, at *2 (Tex. App.—Fort Worth Nov. 14, 2019, no pet.) (mem. op.).

Separate trials may be sought to avoid delay and expense. For example, in cases where resolution of one issue, such as the existence of an informal marriage, may end the entire litigation, a separate trial may be desirable. See Chatman v. Ferd Staffel Co., 362 S.W.2d 173, 174 (Tex. App.—Waco 1962, writ ref’d n.r.e.) (plea of release); Meridith v. Massie, 173 S.W.2d 799, 800 (Tex. App.—Amarillo 1943, writ ref’d) (limitations).

The application of rule 174(b) rests in the court’s discretion. See Bolin v. Smith, 294 S.W.2d 280, 284 (Tex. App.—Fort Worth 1956, writ ref’d n.r.e.) (court did not abuse discretion in overruling motion for separate trials). The court has a duty to order a sepa­rate trial when all the facts and circumstances of a case unquestionably require it to pre­vent injustice, no fact or circumstance supports a contrary conclusion, and the parties’ legal rights will not be prejudiced. Womack v. Berry, 291 S.W.2d 677, 683 (Tex. 1956) (orig. proceeding). At the conclusion of all the separate trials, a single final judgment should be entered. This final judgment is appealable. See Grossenbacher v. Burket, 427 S.W.2d 595, 597 (Tex. 1968).

 

 

 

 

 

 

[Sections 8.35 through 8.40 are reserved for expansion.]

V.  Ancillary Relief

§ 8.41Master in Chancery

The court may, in exceptional cases, for good cause, appoint a master in chancery. Tex. R. Civ. P. 171. Court congestion in itself is not an exceptional circumstance that will warrant referral to a master, nor is the length of time a trial will take. See Bell v. Bell, 540 S.W.2d 432, 437 (Tex. App.—Houston [1st Dist.] 1976, no writ). “The ‘excep­tional condition’ requirement of rule 171 cannot be met by showing that a case is com­plicated or time-consuming or that the trial court is busy.” In re King, No. 01-13-00434-CV, 2013 WL 4007798, at *2 (Tex. App.—Houston [1st Dist.] Aug. 6, 2013, orig. pro­ceeding) (mem. op.). Further, rule 171 states that the master shall be a citizen of Texas and not an attorney for or related to either party. The parties’ consent is not required for appointment of a master. Appointment and assessment of fees for a master in chancery are within the trial court’s discretion, and the court will be reversed only for clear abuse of discretion. The fact that a party requests a jury trial does not preclude appointment of a master. Either party is entitled to a jury trial after the master has filed his report. Mann v. Mann, 607 S.W.2d 243, 246 (Tex. 1980).

Powers and Duties:      A master derives authority in each particular case from the order of appointment. Fowzer v. Huey & Philp Hardware Co., 99 S.W.2d 1100, 1102 (Tex. App.—Dallas 1936, writ dism’d). This order of reference to the master may specify or limit his powers; may direct him to report only on particular issues, to do or perform particular acts, or to receive and report evidence only; and may fix the time and place for beginning and closing the hearings and for filing the master’s report. Tex. R. Civ. P. 171.

Subject to the limitations and specifications in the order, the master has the power to regulate all proceedings in hearings before him and to do everything necessary or proper for the efficient performance of his duties under the order, including requiring the production of evidence on matters embraced in the reference and, unless the order specifies otherwise, ruling on the admissibility of evidence. He can examine witnesses and the parties on oath. When a party requests it, the master shall make a record of the evidence offered and excluded. The parties may procure the attendance of witnesses before the master by the usual issuance and service of process. Tex. R. Civ. P. 171.

Master’s Report:      In the absence of exception or objection, a master’s report will be regarded as conclusive. Richardson v. McCloskey, 276 S.W. 680, 684–85 (Tex. Comm’n App. 1925, judgm’t adopted). However, a master’s report is not conclusive with respect to one not a necessary party to the suit into whose interest the master is without authority to inquire. See generally Arlington Heights Realty Co. v. Citizens’ Railway & Light Co., 160 S.W. 1109 (Tex. App.—Amarillo 1913, no writ). When the report is approved, it is equivalent to a special verdict of a jury and is given the force and effect of a final judgment. Lloyds Investment Co. v. State, 158 S.W.2d 98, 102 (Tex. App.—Galveston 1941, writ ref’d w.o.m.).

The court may also confirm, modify, correct, reject, reverse, or recommit the report after it is filed, as the court may deem proper and necessary in the particular circum­stances of the case. Tex. R. Civ. P. 171. A party dissatisfied with the report has the bur­den to make specific objections before the report is adopted by the court. When exceptions to a master’s report have been filed, the parties are entitled to present evi­dence on the issues specified in the objections and have the court or jury decide those issues on the basis of the evidence presented in court. Thus, on appeal, the judgment cannot be attacked on the ground that the evidence before the master was insufficient to support the master’s findings. Whitehead v. Perie, 15 Tex. 7, 11–15 (1855); Cameron v. Cameron, 601 S.W.2d 814, 815 (Tex. App.—Dallas 1980, no writ).

Litigants are entitled to a trial by jury when demanded, and this right may not be denied by the court’s referring the case to a master. Garrison v. Garrison, 568 S.W.2d 709, 710 (Tex. App.—Beaumont 1978, no writ).

§ 8.42Auditor

When an investigation of accounts or examination of vouchers appears necessary for the purpose of justice between the parties to any suit, the court shall appoint an auditor or auditors to state the accounts between the parties and to make a report to the court as soon as possible. Tex. R. Civ. P. 172. Rule 172 does not limit the appointment to any particular types of actions. Auditors’ reports have been found necessary in different types of actions involving the settling of accounts between parties, including divorce suits involving the division of community property and determination of separate prop­erty. See, e.g., Daniel v. Daniel, 30 S.W.2d 801 (Tex. App.—Fort Worth 1930, no writ).

Whether an auditor should be appointed is within the trial court’s discretion, and its action is revised only on a showing of gross abuse. See Padon v. Padon, 670 S.W.2d 354, 360 (Tex. App.—San Antonio 1984, no writ). Request for an auditor must be made in a timely fashion. See Dudley Hodgkins Co. v. Grant, 261 S.W.2d 229, 231 (Tex. App.—Fort Worth 1953, writ ref’d n.r.e.) (motion made after parties rested case with­out any reservation properly overruled).

Report:      The auditor shall verify his report by affidavit stating that he has carefully examined the state of the account between the parties and that the report contains a true statement thereof, as far as the same has come within his knowledge. Exceptions to the report or any item in it must be filed within thirty days of its filing. Tex. R. Civ. P. 172.

Verified auditors’ reports prepared under rule 172 are admissible in trial, notwithstand­ing any other evidence rule. If exceptions to the report have been filed, a party may present controverting evidence. Tex. R. Evid. 706.

§ 8.43Receiverships

Rule 695 of the Texas Rules of Civil Procedure provides that no receiver shall be appointed without notice to take charge of property that is fixed and immovable, except when otherwise provided by statute. (See Tex. Civ. Prac. & Rem. Code ch. 64 concern­ing receivership.) When application for appointment of a receiver to take possession of property of this type is filed, the court shall set it down for hearing and notify the adverse party of the hearing not less than three days before it is to be held. Tex. R. Civ. P. 695.

If the defendant is a nonresident or his whereabouts are unknown, notice may be served by affixing the notice in a conspicuous manner and place on the property or in such other manner as the court may require. Tex. R. Civ. P. 695.

A receiver for property located entirely or partly in Texas is required to be a bona fide citizen and qualified voter of Texas. If this requirement is not met, his appointment is void as to property in Texas. He must maintain actual residence in Texas throughout the receivership. No party, attorney, or person interested in any way in an action for the appointment of a receiver will be qualified for the position. Tex. Civ. Prac. & Rem. Code § 64.021. The receiver must take an oath to faithfully perform his duties and post a bond. Tex. Civ. Prac. & Rem. Code §§ 64.022, 64.023. In a divorce case, the court may dispense with the necessity of a bond by the spouse applying for the appointment of a receiver. Tex. R. Civ. P. 695a.

While a suit for divorce or annulment or to declare a marriage void is pending and on the motion of a party or on the court’s own motion after notice and hearing, the court may appoint a receiver for the preservation and protection of the property of the parties. Tex. Fam. Code § 6.502(a)(5). Such an order may also be made to preserve and protect the parties’ property during pendency of an appeal. Tex. Fam. Code § 6.709(a)(3). The trial court retains jurisdiction to enforce such an order unless the appellate court super­sedes the order. Tex. Fam. Code § 6.709(b). In Mussina v. Morton, 657 S.W.2d 871, 874 (Tex. App.—Houston [1st Dist.] 1983, no writ), the court stated that the predeces­sor to these provisions, former Texas Family Code section 3.58, “is limited to an order directed to one or both ‘parties’, which we hold to mean ‘spouses’.” The pendency of a divorce does not diminish or limit a creditor’s right to proceed against either or both spouses for payment of community debts incurred before the divorce decree. Mussina, 657 S.W.2d at 874; Commonwealth Mortgage Corp. v. Wadkins, 709 S.W.2d 679, 680 (Tex. App.—Houston [14th Dist.] 1985, no writ) (per curiam).

A court may not appoint a receiver for an individual on the petition of the individual. Tex. Civ. Prac. & Rem. Code § 64.002. However, nothing in section 64.002 prevents a spouse in a suit filed under title 1 or title 5 of the Family Code from having a receiver appointed over all or part of the marital estate. Tex. Civ. Prac. & Rem. Code § 64.002(c).

The appointment of a receiver transfers rights in property from the owner to the court. The receiver acts as the court’s agent, and the property in the receivership remains in the custody of the law. Texas Trunk Railway v. Lewis, 16 S.W. 647, 648–49 (Tex. 1891). The appointment does not permanently affect the owner’s rights in the property but merely preserves the status quo. The enforcement of third-party liens or other rights is suspended until their enforcement is approved by the court. See First Southern Proper­ties, Inc. v. Vallone, 533 S.W.2d 339, 343 (Tex. 1976). The order appointing the receiver must be directly attacked in the cause in which the appointment was made, if the order is allegedly voidable. Helton v. Kimbell, 621 S.W.2d 675, 678 (Tex. App.—Fort Worth 1981, no writ). The trial court is authorized to order, concurrently with a divorce pro­ceeding, a partition of a residence jointly owned by husband and wife by sale through a receiver. Allen v. Allen, No. 02-17-00031-CV, 2018 WL 547586, at *6 (Tex. App.—Fort Worth Jan. 25, 2018, no pet.) (mem. op.). If a homestead is sold by a receiver, the proceeds have the same protection from creditors as the homestead itself. Delaney v. Delaney, 562 S.W.2d 494, 495–96 (Tex. App.—Houston [14th Dist.] 1978, writ dism’d).

Although an order appointing an ancillary receiver is usually interlocutory, it is appeal­able. See Tex. Civ. Prac. & Rem. Code § 51.014; see also Tex. R. App. P. 28, 29. Orders under Family Code chapter 6, subchapter F, appointing a receiver are subject to inter­locutory appeal, although other orders under that subchapter are not. See Tex. Fam. Code § 6.507.

Appointment of a receiver may amount to abuse of discretion. For example, appointing a receiver to file tax returns and to sell a residence on a contingency that may occur in the future was held an abuse of discretion in Whitehill v. Whitehill, 628 S.W.2d 148, 151 (Tex. App.—Houston [14th Dist.] 1982, no writ). The terms of the order appointing the receiver may not modify the terms of the decree. Shultz v. Shultz, No. 05-18-00876-CV, 2019 WL 2511245, at *3 (Tex. App.—Dallas June 18, 2019, no pet.) (mem. op.) (order appointing receiver allowed receiver to set price, but decree said parties must agree on price).

A receiver has derived judicial immunity for all acts done under the authority granted by the order appointing the receiver. Logsdon v. Owens, No. 02-15-00254-CV, 2016 WL 3197953, at *4 (Tex. App.—Fort Worth June 9, 2016, no pet.) (mem. op.). Activi­ties protected by derived immunity are activities where the person exercised discretion­ary judgment comparable to a judge, as opposed to ministerial or administrative tasks. These activities involve personal deliberation, decision, or judgment. “Derived judicial immunity has been extended to court officers and appointees, including trustees and receivers, for acts they are required to do under court order or at a judge’s direction.” Manning v. Jones, No. 05-18-01140-CV, 2019 WL 6522183, at *5 (Tex. App.—Dallas Dec. 4, 2019, no pet.) (mem. op.).

Lis Pendens by Receiver:      When the court appoints a receiver, the property is placed in custodia legis. Moody v. State, 538 S.W.2d 158, 160–61 (Tex. App.—Waco 1976, writ ref’d n.r.e.). No one has the authority, even under a prior deed of trust or execution, to sell property held in custodia legis by a duly appointed receiver, unless the sale is authorized by the court in which the receivership is pending. Vallone, 533 S.W.2d at 341. Compliance with statutes modifying the common law of lis pendens (old Tex. Rev. Civ. Stat. arts. 6640–6642, now repealed and replaced with Tex. Prop. Code § 12.007) is not required to prevent lands in receivership from being acquired under attempted sales by third parties acting under powers not conferred or approved by the court having custody of the property. Nor do such statutes have the intent or effect of ousting courts of their exclusive custody and jurisdiction of receivership property or of creating inno­cent purchasers of such property without court approval when the receiver does not file a lis pendens notice. However, to lessen controversy and inconvenience, the recom­mended practice is to file a notice of receivership and designation of the land and liti­gants in the deed or lis pendens records of the county or counties wherein the property is located. Vallone, 533 S.W.2d at 343.

Receiver’s Sales Report and Confirmation:      A receiver may sell or transfer estate property only with court approval on terms specified by the court. Mergenthaler Lino­type Co. v. McClure, 16 S.W.2d 280, 282 (Tex. Comm’n App. 1929, judgm’t affirmed). The rules of equity govern all matters relating to receivers. Tex. Civ. Prac. & Rem. Code § 64.004. In conformity with the rules of equity, before a receiver’s sale is approved there should be an application for sale pertaining to a specific buyer, notice to all interested parties, and a hearing conducted on the sale. See Harrington v. Schuble, 608 S.W.2d 253, 256 (Tex. App.—Houston [14th Dist.] 1980, no writ).

In a receivership proceeding regarding sale of a homestead, an application for sale, complete with definite terms, price, and parties, should be filed. After sufficient notice has been given to all interested parties, a hearing should be held on the application, with a court order of approval or disapproval of the sale following the hearing. After reason­able notice to all interested parties, the report of the approved sale should be filed, and, before the distribution of any funds, the sale should be confirmed to ensure that it com­plied with the original approved order and to authorize the distribution of proceeds. Finally, customary and reasonable expenses should be paid. Harrington, 608 S.W.2d at 256–57.

Final Accounting and Discharge:      On completing his duties, the receiver should file an accounting with the court and apply for an order discharging him and directing the disposition of the funds or property in his custody. The accounting should be suffi­ciently detailed to allow the parties to the action to determine whether to object to the receiver’s stewardship of the estate. See Mid-Continent Supply Co. v. Conway, 240 S.W.2d 796, 808 (Tex. App.—Texarkana 1951, writ ref’d n.r.e.).

§ 8.44Mental or Physical Examination

No later than thirty days before the end of the applicable discovery period, a party may move for an order compelling another party or a child the subject of the suit to submit to a physical or mental examination by a qualified physician or a mental examination by a qualified psychologist. Tex. R. Civ. P. 204.1(a). The motion and notice of hearing must be served on the person to be examined and on all parties. Tex. R. Civ. P. 204.1(b). The order must be in writing and must specify the time, place, manner, conditions, and scope of the examination and the person or persons by whom it is to be made. Tex. R. Civ. P. 204.1(d).

The court may issue an order for such an examination under rule 204.1 only for good cause shown and only in specified circumstances. Tex. R. Civ. P. 204.1(c). The purpose of rule 204.1’s good-cause requirement is to balance the movant’s right to a fair trial and the opposing party’s right to privacy. In re H.E.B. Grocery Co., 492 S.W.3d 300, 303 (Tex. 2016) (orig. proceeding) (per curiam); In re Grohman, 640 S.W.3d 347, 350 (Tex. App.—San Antonio 2022, orig. proceeding).

In cases arising under title 2 and title 5 of the Family Code, the court may on its own motion or on the motion of a party appoint a psychologist or psychiatrist to make a mental examination of the children who are the subject of the suit or of any other par­ties. Tex. R. Civ. P. 204.4(a). The court may also appoint an expert who is qualified in paternity testing to take blood, body fluid, or tissue samples to conduct paternity tests. Tex. R. Civ. P. 204.4(b).

Selection of the examining doctor, psychiatrist, or psychologist is generally left to the discretion of the court. May v. Lawrence, 751 S.W.2d 678, 679 (Tex. App.—Tyler 1988, orig. proceeding [leave denied]) (per curiam); Employers Mutual Casualty Co. v. Street, 707 S.W.2d 277, 278 (Tex. App.—Fort Worth 1986, orig. proceeding). However, it may be error for a court to refuse to order an independent examination by a doctor, psychia­trist, or psychologist if only one party’s experts have had an opportunity to perform an examination. See Sherwood Lane Associates v. O’Neill, 782 S.W.2d 942, 945 (Tex. App.—Houston [1st Dist.] 1990, orig. proceeding).

§ 8.45Child Custody Evaluation

In a suit affecting the parent-child relationship, the court may order the preparation of a child custody evaluation regarding (1) the circumstances and conditions of the child, a party to the suit, and, if appropriate, the residence of any person requesting conservator­ship of, possession of, or access to the child and (2) any issue or question relating to the suit at the request of the court before or during the evaluation process. Tex. Fam. Code § 107.103(a). 

Child custody evaluations are discussed in section 40.19 in this manual.

 

 

 

 

 

[Sections 8.46 through 8.50 are reserved for expansion.]

VI.  Motions for Summary Judgment

§ 8.51Basics of Summary Judgment

Two types of motions for summary judgment may be filed: a traditional motion for summary judgment and a no-evidence motion for summary judgment.

§ 8.51:1Traditional Motion for Summary Judgment

In General:      A court may render a summary judgment only if the pleadings, deposi­tions, admissions, and affidavits show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. See Tex. R. Civ. P. 166a(c). The movant has the burden of demonstrating the lack of any genuine issues of material fact. The court must take all evidence favoring the nonmovant as true, must indulge every reasonable inference therefrom in favor of the nonmovant, and must resolve any doubts in the nonmovant’s favor. Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548–49 (Tex. 1985).

A defendant who moves for a traditional summary judgment assumes the burden of showing as a matter of law that the plaintiff has no cause of action against the defen­dant. Citizens First National Bank v. Cinco Exploration Co., 540 S.W.2d 292, 294 (Tex. 1976). Traditional summary judgment for a defendant is proper only if the defendant negates at least one element of each of the plaintiff’s theories of recovery or pleads and conclusively establishes each element of an affirmative defense. Science Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex. 1997).

The court may grant a motion for summary judgment that shows that the nonmovant has no viable cause of action or defense based on the nonmovant’s pleadings. See, e.g., National Union Fire Insurance Co. v. Merchants Fast Motor Lines, Inc., 939 S.W.2d 139, 141 (Tex. 1997) (per curiam). In this type of motion, the court must allow the non­movant adequate opportunity to plead a viable cause of action. See In re B.I.V., 870 S.W.2d 12, 13–14 (Tex. 1994) (per curiam).

Requirements:      The motion must be in writing. City of Houston v. Clear Creek Basin Authority, 589 S.W.2d 671, 677 (Tex. 1979). It may be filed at any time after the adverse party answers the lawsuit or, in the case of a defendant, at any time. Tex. R. Civ. P. 166a(a), (b). The motion must state the specific grounds on which it is made. McConnell v. Southside ISD, 858 S.W.2d 337, 341 (Tex. 1993). A trial court may not grant a summary judgment for more relief than was requested in the motion. See Sci­ence Spectrum, Inc., 941 S.W.2d at 912. The trial court shall render summary judgment based on the pleadings on file at the time of the hearing if there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. See Tex. R. Civ. P. 166a(c). A party may file an amended pleading during the pendency of the summary judgment. See Cluett v. Medical Protective Co., 829 S.W.2d 822, 825–26 (Tex. App.—Dallas 1992, writ denied). The trial court must accept an amendment unless the oppos­ing party objects to the amendment and (1) the party demonstrates surprise or prejudice or (2) the amendment asserts a new cause of action or defense and thus is prejudicial on its face. Herschberg v. Herschberg, No. 13-19-00045-CV, 2020 WL 6788938, at *4 (Tex. App.—Corpus Christi–Edinburg Nov. 19, 2020, no pet.) (mem. op.). For the order to be final, as opposed to being merely a partial summary judgment, the motion must ask the court to dispose of all issues and all parties. See Continental Airlines, Inc. v. Kiefer, 920 S.W.2d 274, 276–77 (Tex. 1996). On appeal, the summary judgment may not be affirmed on a ground not presented to the trial court in the motion. Haase v. Glazner, 62 S.W.3d 795, 799–800 (Tex. 2001); Stiles v. Resolution Trust Corp., 867 S.W.2d 24, 26 (Tex. 1993).

§ 8.51:2No-Evidence Motion for Summary Judgment

A court may grant a no-evidence motion for summary judgment if the movant can show that an adequate time for discovery has passed and the nonmovant has no evidence to support one or more essential elements of his claim or defense. Tex. R. Civ. P. 166a(i).

Burden of Proof:      A party seeking a no-evidence summary judgment must assert that no evidence exists as to one or more of the essential elements of the nonmovant’s claims on which it would have the burden of proof at trial. Holmstrom v. Lee, 26 S.W.3d 526, 530 (Tex. App.—Austin 2000, no pet.). Once the movant specifies the elements on which there is no evidence, the burden shifts to the nonmovant to raise a fact issue on the challenged elements. The nonmovant is not required to marshal its proof, but it must point out evidence that raises a fact issue. See Tex. R. Civ. P. 166a cmt. 

To raise a genuine issue of material fact, the nonmovant must set forth more than a scin­tilla of probative evidence as to an essential element of the nonmovant’s claim or defense on which the nonmovant would have the burden of proof at trial. See Tex. R. Civ. P. 166a(i); Merrell Dow Pharmaceuticals, Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997).

When a nonmovant presents summary judgment evidence in response to a no-evidence motion, that party must specifically identify the supporting proof it seeks to have con­sidered by the trial court. General citation to voluminous records is not a proper response to a no-evidence motion for summary judgment, and the trial court is not required to search the record for evidence raising a material fact issue without more specific guidance from the nonmovant. In re A.J.L., No. 14-16-00834-CV, 2017 WL 4844479, at *4 (Tex. App.—Houston [14th Dist.] Oct. 26, 2017, no pet.) (mem. op.).

Conclusory declarations are not competent summary judgment proof. See Tex. R. Civ. P. 166a(f); Brownlee v. Brownlee, 665 S.W.2d 111, 112 (Tex. 1984) (affidavits consist­ing of conclusions do not raise genuine issue of material fact; facts must be stated with sufficient specificity to allow perjury to be assigned to false representations); Tran v. Ngo, No. 01-17-00138-CV, 2018 WL 4126577, at *3 (Tex. App.—Houston [1st Dist.] Aug. 30, 2018, no pet.) (mem. op.).

If the evidence supporting a finding rises to a level that would enable reasonable, fair-minded persons to differ in their conclusions, then more than a scintilla of evidence exists. Havner, 953 S.W.2d at 711. Less than a scintilla of evidence exists when the evi­dence is “so weak as to do no more than create a mere surmise or suspicion” of fact, and the legal effect is that there is no evidence. Jackson v. Fiesta Mart, 979 S.W.2d 68, 70 (Tex. App.—Austin 1998, no pet.) (quoting Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex. 1983)).

If the nonmovant fails to present evidence raising a genuine issue of material fact as to the challenged element, the trial court must grant the motion. Tex. R. Civ. P. 166a(i). A no-evidence summary judgment is essentially a directed verdict granted before trial, to which is applied a legal sufficiency standard of review. Jackson, 979 S.W.2d at 70.

Requirements:      Like the traditional motion for summary judgment, the no-evidence motion must be in writing. Unlike the traditional motion, it does not require supporting evidence. The no-evidence motion should not be filed until after an “adequate time for discovery” has passed. See Tex. R. Civ. P. 166a(i).

§ 8.52Use of Summary Judgment to Dispute Existence of Marriage Relationship

Summary judgment may be used to dispose of a divorce action entirely if the existence of the marriage relationship is disputed at the outset. If a party alleges an informal mar­riage, the party must allege that (1) the parties agreed to be married, (2) after the agree­ment, they lived together in Texas as spouses, and (3) after the agreement, they represented to others in Texas that they were married. Tex. Fam. Code § 2.401(a)(2). Although the elements may occur at different times, there is no informal marriage until all three exist. Flores v. Flores, 847 S.W.2d 648, 650 (Tex. App.—Waco 1993, writ denied) (per curiam); Winfield v. Renfro, 821 S.W.2d 640, 646 (Tex. App.—Houston [1st Dist.] 1991, writ denied). In a traditional motion for summary judgment, a movant respondent would need to disprove at least one element of informal marriage. In a no-evidence motion for summary judgment, a movant respondent need only assert that an adequate time for discovery has passed and that the petitioner has no evidence to sup­port one or more essential elements of informal marriage.

Agreement to Be Married:      To prove the first element of an informal marriage, there must be evidence of a present agreement between the parties to be married. Shelton v. Belknap, 282 S.W.2d 682, 684 (Tex. 1955); In re Marriage of Caldwell-Bays & Bays, No. 13-20-00202-CV, 2021 WL 3777143, at *4 (Tex. App.—Corpus Christi–Edinburg Aug. 26, 2021, pet. filed) (mem. op.) (wife’s testimony that there was agreement to be married raises fact issue). Proof of cohabitation and representations to others that the couple is married may constitute circumstantial evidence of an agreement to be mar­ried. Russell v. Russell, 865 S.W.2d 929, 933 (Tex. 1993).

Cohabitation:      Subsequent to an agreement to be married, the couple must live together in Texas as spouses. Tex. Fam. Code § 2.401(a)(2). This has been interpreted to mean that the couple must live together under the same roof, maintain a household, and otherwise conduct themselves as spouses. See Grimsby v. Reib, 153 S.W. 1124, 1129–30 (Tex. 1913); Claveria v. Estate of Claveria, 597 S.W.2d 434, 438 (Tex. App.—Dallas 1980), rev’d on other grounds, 615 S.W.2d 164 (Tex. 1981).

“Cohabitation” does not encompass mere frequent overnight visits or even a storage of personal property at the home in question. Allen v. Allen, 966 S.W.2d 658, 661 (Tex. App.—San Antonio 1998, pet. denied). Further, living together as spouses involves more than merely having sexual relations with one another. See Ex parte Threet, 333 S.W.2d 361, 364 (Tex. 1960) (orig. proceeding).

Purchasing property and executing secured transactions jointly (see Rodriguez v. Avalos, 567 S.W.2d 85, 86 (Tex. App.—El Paso 1978, no writ)) and filing joint tax returns (see Day v. Day, 421 S.W.2d 703, 705 (Tex. App.—Austin 1967, no writ)) are examples of the type of evidence to which Texas courts look to determine whether a couple is functioning as spouses for purposes of establishing an informal marriage. The designation of one member of the couple as the beneficiary of the other member’s life insurance policy is also relevant evidence. See Grigsby v. Grigsby, 757 S.W.2d 163, 164 (Tex. App.—San Antonio 1988, no writ); Ortiz v. Santa Rosa Medical Center, 702 S.W.2d 701, 704 (Tex. App.—San Antonio 1985, writ ref’d n.r.e.). On the other hand, evidence that a party insisted with the Texas Health and Human Services and federal agencies that she was not married is evidence the parties are not married. See In re Mar­riage of Mohamed, No. 14-18-01029-CV, 2021 WL 3629245, at *8 (Tex. App.—Hous­ton [14th Dist.] Aug. 17, 2021, no pet. h.) (mem. op.).

“Holding Out” Requirement:      The final element in proving an informal marriage is that after agreeing to be married, the couple represented to others, in Texas, that they are married. Tex. Fam. Code § 2.401(a)(2). This element is commonly referred to as “holding out.” The Texas Supreme Court has stated that under Texas law “there can be no secret common law marriage.” Ex parte Threet, 333 S.W.2d at 364–65. Conse­quently, evidence of a casual holding out, such as occasional introductions in public as spouses, will not suffice to establish this element. Flores, 847 S.W.2d at 653; Winfield, 821 S.W.2d at 651. If a couple’s agreement to be married is shared only with close rela­tives or friends, while the couple acts to conceal the agreement from the community at large, no informal marriage exists. Winfield, 821 S.W.2d at 649–50.

COMMENT:      If a party prevails on a motion for summary judgment related to the exis­tence of the marriage relationship, the rest of the issues related to the divorce action become moot. Issues may still exist regarding children. It may be wise to sever these issues out if there are children involved. Additionally, if the motion for summary judg­ment will dispose of all issues of the cause, attorney’s fees should be pleaded in the motion and included in the order granting summary judgment; otherwise, they are waived. A motion for summary judgment that is intended to dispose of all issues does just that—disposes of all issues related to the divorce, including attorney’s fees. Accordingly, the moving party must attach summary judgment evidence regarding attorney’s fees in the form of an affidavit, usually with the attorney’s invoices attached.

§ 8.53Marital Property Agreements

§ 8.53:1Summary Judgment and Enforceability of Marital Property Agreements

Summary judgment may also be used to determine the enforceability of marital prop­erty agreements. Often parties enter into marital property agreements to simplify mat­ters in the event of a dissolution of their marriage. This “simplification” can be defeated if one party decides to challenge the enforceability of a marital property agreement. A divorce that should have been clear-cut can become even more complex than if the par­ties had not entered into an agreement at all. To limit the damage brought on by a chal­lenge to a marital property agreement, a motion for partial summary judgment may be filed. However, if a motion for partial summary judgment is granted on the enforceabil­ity of a marital property agreement, the case is not necessarily disposed of in its entirety. The actual interpretation of the agreement and division of the estate still remains. Addi­tionally, if children are involved, there may be additional litigation, even if the motion for partial summary judgment is granted.

§ 8.53:2Types of Agreements

Three types of marital property agreements are sanctioned by the Texas Family Code: (1) premarital agreements (including property agreements affirming premarital agree­ments), (2) partition or exchange agreements, and (3) agreements to convert separate property to community property. For a discussion of the enforceability of these agree­ments, see the practice notes in chapter 63 of this manual.

§ 8.54Characterization of Property: Separate or Community

A spouse’s separate property consists of (1) the property owned or claimed by the spouse before marriage; (2) the property acquired by the spouse during the marriage by gift, devise, or descent; and (3) the recovery for personal injuries sustained by the spouse during the marriage, except any recovery for loss of earning capacity during marriage. Tex. Fam. Code § 3.001. Property possessed by either spouse during or on dissolution of marriage is presumed to be community property. Tex. Fam. Code § 3.003(a).

COMMENT:      If there is a dispute between the parties as to the separate character of certain items of property, a motion for partial summary judgment may be in order to establish the separate nature of that property. However, if a motion for partial summary judgment regarding alleged separate property is not granted, that does not mean that the property is not separate property. It merely means that there may not be enough summary judgment evidence to prove as a matter of law that it is, in fact, separate property. The burden for a motion for partial summary judgment is not exactly the same as the burden for proving the separate character of certain property. If there is a fact issue to be determined, the trier of fact may still consider character on final hearing. This type of motion is most helpful if the court makes a specific ruling that property is either community or separate.

§ 8.55Children’s Issues

§ 8.55:1Texas Family Code Section 153.004

Most children’s issues cannot be determined by summary judgment practice. However, Texas Family Code section 153.004 provides:

(a)In determining whether to appoint a party as a sole or joint managing conservator, the court shall consider evidence of the intentional use of abusive physical force, or evidence of sexual abuse, by a party directed against the party’s spouse, a parent of the child, or any person younger than 18 years of age committed within a two-year period preceding the filing of the suit or during the pendency of the suit.

(b)The court may not appoint joint managing conservators if credible evi­dence is presented of a history or pattern of past or present child neglect, or physical or sexual abuse by one parent directed against the other parent, a spouse, or a child . . . .

Tex. Fam. Code § 153.004(a), (b).

§ 8.55:2Mandatory Prohibition

Texas Family Code section 153.004 sets out the criteria to determine whether a manda­tory prohibition is warranted against the appointment of parents as joint managing con­servators, if credible evidence is introduced that one of them has a “history or pattern of past or present child neglect, or physical or sexual abuse by one parent directed against the other parent, a spouse, or a child.” See Tex. Fam. Code § 153.004(b).

COMMENT:      Filing a summary judgment motion based on this provision of the Family Code can eliminate the option of joint managing conservators. However, it does not provide a complete solution to the issue of conservatorship, because as it currently stands, an abusive parent may still theoretically be appointed sole managing conserva­tor of a child. However, if the client is a primary parent for the children and a battered spouse, the provisions of section 153.004(d) work in the client’s favor.

§ 8.56Other Causes of Action

Other causes of action that may be included against a spouse or third party in a divorce are (1) assault or intentional infliction of emotional distress, (2) fraud/conversion, (3) transmitting sexual disease, (4) invasion of privacy by unlawful interception of oral or electronic communication, (5) tortious interference with business relations, (6) wrong­ful interference with an existing contract, (7) interference with custody, (8) parentage action if someone other than a spouse is alleged to be the biological father of a child born during the marriage, (9) cause of action alleging third-party corporation to be alter ego of respondent, (10) request for relief from third-party cotenant, (11) request for relief from third party for fraudulent transfer, (12) request to void fraudulent obligation to third party, (13) request for relief from third-party trustee, and (14) civil conspiracy. See sections 3.61 through 3.75 in this manual. A party is not entitled to final judgment on a summary judgment unless the summary judgment disposes of all claims. Philips v. McNease, 467 S.W.3d 688, 694 (Tex. App.—Houston [14th Dist.] 2015, no pet.). A declaratory judgment may also be sought. See section 61.10 in this manual.

To the extent that a party would be entitled to summary judgment on any of these causes of action outside the divorce context, a spouse should also be entitled, at the very least, to summary judgment on the issue of liability. That is, if a party can establish each element of its claim as a matter of law, that party is entitled to summary judgment relief. MMP, Ltd. v. Jones, 710 S.W.2d 59, 60 (Tex. 1986) (per curiam); Fry v. Commission for Lawyer Discipline, 979 S.W.2d 331, 334 (Tex. App.—Houston [14th Dist.] 1998, pet. denied).

COMMENT:      As to causes of action that apply to third parties, there should be no question that summary judgment would be available if a party can prove judgment as a matter of law. This applies to third-party defendants as well. That is, a third-party defen­dant is entitled to summary judgment on its defenses, as in any other case.

Damages:      In Schlueter v. Schlueter, the supreme court held that fraud on the commu­nity is a factor for division of the community estate, but that it was not an independent tort cause of action between spouses for damages to the community estate. Schlueter v. Schlueter, 975 S.W.2d 584, 587–89 (Tex. 1998); see Tex. Fam. Code § 7.009. If the damages are unliquidated (not yet determined or calculated), the court may grant an interlocutory summary judgment on liability and hold a hearing on damages. Tex. R. Civ. P. 166a(a). But see State v. Roberts, 882 S.W.2d 512, 514 (Tex. App.—Austin 1994, no writ) (summary judgment rarely appropriate in cases regarding unliquidated damages).

COMMENT:      If summary judgment is filed on claims where damages cannot be addressed, the motion should be based solely on the issue of liability.

§ 8.57Postdecree Issues

§ 8.57:1Texas Family Code Chapter 9

Chapter 9 of the Texas Family Code governs postdecree proceedings. The types of liti­gation that may be dealt with include a postdecree division of property and dispositions of undivided beneficial interests. With regard to both of these issues, the same summary judgment tools can be used to determine the character of the property as are used in pre­decree cases. Once character of the property is determined, a just and equal division can be achieved concerning community property. If the property is the separate property of either of the parties, it is not subject to division by the court.

§ 8.57:2Bill of Review

A bill of review is an equitable proceeding brought by a party seeking to set aside a prior judgment that is no longer subject to challenge by a motion for new trial or appeal. Transworld Financial Services Corp. v. Briscoe, 722 S.W.2d 407, 407 (Tex. 1987). The bill of review is discussed in section 61.1 in this manual.

§ 8.58Affidavits and Verifications

If a motion or pleading includes facts that are outside the record of the case, it may be necessary for the filing party to verify the facts by sworn proof. Depending on the type of pleading, this proof may be accomplished either by verification of the pleading or by attachment of an affidavit as an exhibit to the pleading.

A verification is a witnessed or notarized statement at the end of a pleading in which either the client or the attorney swears that the statements in the pleading are true and correct.

An affidavit is a statement in writing of a fact or facts signed by the party making it, sworn to before an officer authorized to administer oaths, and officially certified to by the officer under his seal of office. Tex. Gov’t Code § 312.011(1); Ford Motor Co. v. Leggat, 904 S.W.2d 643, 645–46 (Tex. 1995) (orig. proceeding). An affidavit must show that it is made by a person who is of sound mind, over the age of eighteen years, and competent to testify. See Tex. R. Evid. 601.

An affidavit must positively and unequivocally represent that the facts disclosed in the affidavit are true and within the affiant’s personal knowledge. Humphreys v. Caldwell, 888 S.W.2d 469, 470 (Tex. 1994) (orig. proceeding) (per curiam); see also Tex. R. Evid. 602. Any qualification of the affiant’s personal knowledge renders the affidavit legally invalid. Humphreys, 888 S.W.2d at 470 (statements based on knowledge affiant learned through inquiry are not based on personal knowledge). The affidavit must also show how the affiant became familiar with these facts. Jordan v. Geigy Pharmaceuti­cals, 848 S.W.2d 176, 181 (Tex. App.—Fort Worth 1992, no writ); Fair Woman, Inc. v. Transland Management Corp., 766 S.W.2d 323, 323 (Tex. App.—Dallas 1989, no writ). Unless authorized by statute, an affidavit is insufficient unless the allegations contained in it are direct and unequivocal and perjury can be assigned upon it. Brownlee v. Brownlee, 665 S.W.2d 111, 112 (Tex. 1984). Statements as to the affiant’s state of mind cannot be readily controverted. Beaumont Enterprise & Journal v. Smith, 687 S.W.2d 729, 730 (Tex. 1985). An affidavit must set forth facts, not legal conclusions; in other words, it may not contain information that is a unilateral and subjective determi­nation of the facts or an opinion about those facts. Querner Truck Lines v. Alta Verde Industries, 747 S.W.2d 464, 468 (Tex. App.—San Antonio 1988, no writ). A legal con­clusion in an affidavit is insufficient to raise an issue of fact in response to a motion for summary judgment. Mercer v. Daoran Corp., 676 S.W.2d 580, 583 (Tex. 1984); Hidalgo v. Surety Savings & Loan Ass’n, 487 S.W.2d 702, 703 (Tex. 1972) (per curiam).

Under certain specific statutes or rules, some affidavits may be based on “knowledge and belief.” See Tex. Fam. Code § 153.432(c) (grandparent’s affidavit alleging that denial of possession or access would significantly impair child’s physical health or emotional well-being); Tex. Fam. Code § 156.006(b–1) (affidavit alleging that tempo­rary order is necessary because child’s present circumstances would significantly impair child’s physical health or emotional well-being (personal knowledge or belief based on representations of person with personal knowledge)); Tex. R. Civ. P. 18a(a) (motion to recuse); Tex. R. Civ. P. 93(8), (13), (15) (certain verified denials). An affida­vit may not be based on “knowledge and belief” except in these limited circumstances. See Burke v. Satterfield, 525 S.W.2d 950, 954–55 (Tex. 1975); Wimmer v. Hanna Prime, Inc., No. 05-08-01323, 2009 WL 3838867 (Tex. App.—Dallas Nov. 18, 2009, no pet.) (mem. op.).

Unsworn Declarations:      In many circumstances, an unsworn declaration may be used in lieu of a written sworn declaration, verification, certification, oath, or affidavit required by statute or required by a rule, order, or requirement adopted as provided by law. This provision does not apply to an oath of office or an oath required to be taken before a specified official other than a notary public. Such an unsworn declaration must be in writing and subscribed by the person making the declaration as true under penalty of perjury, and it must include a prescribed jurat. Tex. Civ. Prac. & Rem. Code § 132.001.

This provision does not apply to a waiver of the issuance or service of citation in a suit for dissolution of marriage, a suit for change of name of a child, or a suit affecting the parent-child relationship. These waivers must be sworn before a notary public who is not an attorney in the suit unless the party executing the waiver is incarcerated. Tex. Fam. Code §§ 6.4035(c), 45.0031, 102.0091. This provision also does not apply in cer­tain other circumstances specified in Tex. Civ. Prac. & Rem. Code § 132.001(b) or to acknowledgments.

 

 

[Sections 8.59 and 8.60 are reserved for expansion.]

VII.  Maintaining Suit

§ 8.61Nonsuit

At any time before a party finishes presenting his evidence, that party may dismiss or nonsuit his case. Notice should be served in accordance with rule 21a of the Texas Rules of Civil Procedure without necessity of a court order. The dismissal does not prej­udice an adverse party’s right to pursue that party’s claims and has no effect on any pending motions for sanctions, attorney’s fees, or costs. Tex. R. Civ. P. 162; In re M.B.D., No. 09-18-00278-CV, 2020 WL 1879474, at *2 (Tex. App.—Beaumont Apr. 16, 2020, no pet.) (mem. op.).

If the record does not reflect that the waiver of a de novo hearing was signed before a hearing in front of an associate judge, the report of the associate judge is not a rendition for purposes of preventing a nonsuit of the case. Alwazzan v. Alwazzan, 596 S.W.3d 789, 804 (Tex. App.—Houston [1st Dist.] 2018, pet. denied).

§ 8.62Dismissal

Rule 165a of the Texas Rules of Civil Procedure provides a procedure for dismissal for want of prosecution that is cumulative of the rules and laws governing any other proce­dures available to the parties in such cases. Tex. R. Civ. P. 165a(4).

A case may be dismissed for want of prosecution under rule 165a on failure of any party seeking affirmative relief to appear for any hearing or trial of which he had notice. Notice of intention to dismiss must be sent by the clerk to each attorney of record and to each party not represented by an attorney. At the dismissal hearing, the court shall dis­miss for want of prosecution unless there is good cause for the case to be maintained on the docket. If the court determines to maintain the case on the docket, it shall render a pretrial order assigning a trial date for the case and setting deadlines for the joining of new parties, all discovery, the filing of all pleadings, the making of a response or sup­plemental responses to discovery, and other pretrial matters. The case may be continued thereafter only for valid and compelling reasons specifically determined by court order. Notice of the signing of the order of dismissal must be given as provided in rule 306a of the Texas Rules of Civil Procedure. See Tex. R. Civ. P. 306a. Failure to mail notices as required by rule 165a does not affect any of the periods mentioned in rule 306a except as provided in that rule. Tex. R. Civ. P. 165a(1).

Any case not disposed of within the time standards promulgated by the supreme court under its administrative rules may be placed on a dismissal docket. Tex. R. Civ. P. 165a(2).

If one party dies before the divorce is granted, the case should be dismissed, including claims by third parties. Whatley v. Bacon, 649 S.W.2d 297, 299 (Tex. 1983) (orig. pro­ceeding); Janner v. Richardson, 414 S.W.3d 857, 858 (Tex. App.—Houston [1st Dist.] 2013, no pet.); see Garrison v. Texas Commerce Bank, 560 S.W.2d 451, 453 (Tex. App.—Houston [1st Dist.] 1977, writ ref’d n.r.e.). However, if judgment has been ren­dered the court may proceed to enter the decree. Dunn v. Dunn, 439 S.W.2d 830, 833 (Tex. 1969).

§ 8.63Reinstatement

One whose suit has been dismissed for want of prosecution may appeal to the equitable powers of the court to have the judgment set aside and the case reinstated for cause. The court must balance the equities in each case in making its determination. Moody & Tips Lumber Co. v. South Dallas Bank & Trust Co., 246 S.W.2d 263, 265 (Tex. App.—Dal­las 1952, writ dism’d). Granting or refusing the motion for reinstatement rests in the sound discretion of the trial court, subject to review for abuse of discretion. Moss v. State, 361 S.W.2d 408, 409 (Tex. App.—Eastland 1962, no writ).

Under rule 165a(3), to reinstate a case, a verified motion setting forth the grounds shall be filed within thirty days after the signing of the order of dismissal for want of prose­cution or within the period prescribed by rule 306a. See Tex. R. Civ. P. 306a.

The clerk shall deliver a copy of the motion to the judge, who shall set a hearing as soon as possible. Tex. R. Civ. P. 165a(3). The failure of the court to hold a hearing on a timely filed and properly verified motion is an abuse of discretion. Bonifazi v. Birch, No. 09-14-00136-CV, 2015 WL 8476572, at *2 (Tex. App.—Beaumont Dec. 10, 2015, no pet.) (mem. op.).

If the motion for reinstatement is not decided by written order within seventy-five days after the judgment is signed or within such other time as allowed by rule 306(a), the motion is deemed overruled by operation of law. If the motion to reinstate is timely filed, the trial court, regardless of whether an appeal has been perfected, has plenary power to reinstate the case until thirty days after all timely filed motions are overruled either by written and signed order or by operation of law, whichever occurs first. Tex. R. Civ. P. 165a(3).

The court shall reinstate the case on finding after hearing that the failure of the party or his attorney was not intentional or the result of conscious indifference but was due to accident or mistake or that the failure has been otherwise reasonably explained. Tex. R. Civ. P. 165a(3).

The reinstatement procedure is cumulative of the rules and laws governing any other procedures available to the parties in such cases. The same reinstatement procedure and timetable apply to all dismissals for want of prosecution, including cases dismissed under the court’s inherent power, whether or not a motion to dismiss has been filed. Tex. R. Civ. P. 165a(4). See Martin v. Sanders, No. 01-18-00726-CV, 2019 WL 2750598, at *4 (Tex. App.—Houston [1st Dist.] July 2, 2019, no pet.) (mem. op.) (court abused discretion in not reinstating case when attorney forgot to attend hearing because he had been witness giving deposition in federal case on day before and had gone back to deposition instead of going to hearing).

§ 8.64Bankruptcy

The filing of a bankruptcy petition automatically stays any judicial, administrative, or other action or proceeding against a debtor and his property. See 11 U.S.C. § 362(a). The stay applies automatically, regardless of whether a party to the stayed action or the court in which the action is filed learns of the bankruptcy before taking action against the debtor. The stay specifically applies to divorce proceedings, at least to the extent they seek to divide the marital estate. The stay abates any judicial proceeding against the debtor and, until lifted or modified, deprives state courts of jurisdiction over the debtor and his property. Any action taken in violation of the stay is void, not merely voidable. Adeleye v. Driscal, 544 S.W.3d 467, 473–74 (Tex. App.—Houston [14th Dist.] 2018, no pet.).

Federal law contains exceptions to the automatic stay rule that affect family law cases. Those exceptions include the commencement or continuation of a civil action or pro­ceeding (1) for the establishment of paternity; (2) for the establishment or modification of an order for domestic support obligations; (3) concerning child custody or visitation; (4) for the dissolution of a marriage, except to the extent that such proceeding seeks to determine the division of property that is property of the estate; or (5) regarding domes­tic violence. 11 U.S.C. § 362(b)(2)(A).

The filing of the petition also does not operate as a stay (1) of the collection of a domes­tic support obligation from property that is not property of the estate; (2) with respect to the withholding of income that is property of the estate or property of the debtor for payment of a domestic support obligation under a judicial or administrative order or a statute; (3) of the withholding, suspension, or restriction of a driver’s license, a profes­sional or occupational license, or a recreational license, under state law, as specified in section 466(a)(16) of the Social Security Act; (4) of the reporting of overdue support owed by a parent to any consumer reporting agency as specified in section 466(a)(7) of the Social Security Act; (5) of the interception of a tax refund, as specified in sections 464 and 466(a)(3) of the Social Security Act or under an analogous state law; or (6) of the enforcement of a medical obligation, as specified under title IV of the Social Secu­rity Act. 11 U.S.C. § 362(b)(2)(B)–(G).

 

 

 

 

 

 

[Sections 8.65 through 8.70 are reserved for expansion.]

VIII.  Witnesses

§ 8.71Exclusion of Expert Witness

Under Tex. R. Evid. 702, the trial court determines the qualifications of an expert wit­ness and whether the expert’s opinion is admissible into evidence. E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549, 556 (Tex. 1995).

An expert witness may testify regarding scientific, technical, or other specialized mat­ters if the expert is qualified, the expert’s opinion is relevant, the opinion is reliable, and the opinion is based on a reliable foundation. Tex. R. Evid. 702; Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 578 (Tex. 2006); Robinson, 923 S.W.2d at 556. An expert may satisfy the requisites of one test but fail in others, making the expert’s testimony inad­missible.

Robinson provides a list of nonexclusive factors that may be considered in making the threshold determination of admissibility under rule 702: (1) the extent to which the the­ory has been or can be tested, (2) the extent to which the technique relies on the subjec­tive interpretation of the expert, (3) whether the theory has been subjected to peer review and/or publication, (4) the technique’s potential rate of error, (5) whether the theory or technique has been generally accepted as valid by the relevant scientific com­munity, and (6) the nonjudicial uses that have been made of the theory or technique. Robinson, 923 S.W.2d at 557.

However, the supreme court has recognized that the Robinson-factor analysis may not be the appropriate test for all experts—indeed, the Robinson-factor analysis does not properly measure the reliability of “nonscientific” experts who testify based on training or experience. Gammill v. Jack Williams Chevrolet, Inc., 972 S.W.2d 713, 726 (Tex. 1998). The Gammill court held that in cases where the Robinson-factor analysis is inap­propriate, trial courts may apply the “analytical gap” test: expert testimony is unreliable if “there is simply too great an analytical gap between the data and the opinion prof­fered.” Gammill, 972 S.W.2d at 727. In making this determination the court should consider whether the expert’s field is legitimate, whether the subject matter of the expert’s testimony falls within the scope of that field, and whether the expert’s testi­mony properly relies on the principles in the expert’s field. In re J.R., 501 S.W.3d 738, 748 (Tex. App.—Waco 2016, no pet.). Further, the expert must show a connection between the data relied on and the opinion offered. Southwestern Energy Production Co. v. Berry-Helfand, 491 S.W.3d 699, 717 (Tex. 2016).

It has been held that evaluation of an expert’s reliability need not rely solely on either the Robinson factors or the analytical gap analysis, but that a hybrid evaluation of all available factors may be appropriate in some cases. Whirlpool Corp. v. Camacho, 298 S.W.3d 631, 639–40 (Tex. 2009).

When expert testimony is involved, courts must rigorously examine the validity of facts and assumptions on which the testimony is based, as well as the principles, research, and methodology underlying the expert’s conclusions and the manner in which the expert applied the principles and methodologies to reach the conclusions. Whirlpool Corp., 298 S.W.3d at 637; see Exxon Pipeline Co. v. Zwahr, 88 S.W.3d 623, 629 (Tex. 2002). Conclusory or speculative opinion testimony is not relevant evidence because it does not tend to make the existence of material facts more probable or less probable. Coastal Transport Co. v. Crown Central Petroleum Corp., 136 S.W.3d 227, 232 (Tex. 2004); see Tex. R. Evid. 401. An expert’s opinion might be unreliable, for example, if it is based on assumed facts that vary from the actual facts, Burroughs Wellcome Co. v. Crye, 907 S.W.2d 497, 499 (Tex. 1995), and in that instance it is not probative evi­dence. Whirlpool Corp., 298 S.W.3d at 637. Likewise, expert testimony is unreliable if it fails to rule out other plausible causes. Robinson, 923 S.W.2d at 559; Merrill Dow Pharmaceuticals, Inc. v. Havner, 953 S.W.2d 706, 720 (Tex. 1997).

To object to an expert, the party should make a written pretrial objection to the admissi­bility of the expert’s opinion pursuant to Tex. R. Evid. 104(a). The motion must identify each expert and the opinion or conclusion that it seeks to exclude and should allege that the expert is not qualified to give the opinion, the subject of the testimony is not special­ized knowledge, the opinion of the expert is not reliable, or the opinion of the expert is not relevant. See Gammill, 972 S.W.2d 713.

The trial court has the discretion to determine if a hearing will be held or if the matter will be decided by submission. Piro v. Sarofim, 80 S.W.3d 717, 720 (Tex. App.—Hous­ton [1st Dist.] 2002, no pet.).

Once a party objects to the expert’s testimony, the party sponsoring the expert bears the burden of responding to each objection and showing by a preponderance of the evi­dence that the testimony is admissible. Robinson, 953 S.W.2d at 557.

COMMENT:      It is good practice (and many courts require) that the objection be filed well in advance of the trial and not at the time the expert is called to testify.

§ 8.72Presence of Dog to Assist Witness

Any party may petition the court in which a proceeding will be held for an order autho­rizing a qualified facility dog or qualified therapy dog to be present with a witness who is testifying before the court in person or by closed-circuit video teleconferencing. The party must petition for the order not later than the fourteenth day before the date of the court proceeding. Tex. Gov’t Code § 21.012(b), (e).

The strict requirements for a dog to be considered a qualified facility dog or qualified therapy dog are set forth in the statute. See Tex. Gov’t Code § 21.012(a).

The court may enter an order authorizing such a dog to accompany a witness testifying at the court proceeding if the presence of the dog will assist the witness in providing testimony and the party seeking the order provides proof of liability insurance coverage in effect for the dog. Tex. Gov’t Code § 21.012(c).

A handler trained to manage the dog must accompany the dog, and the court may impose restrictions on the presence of the dog and issue instructions to the jury, as applicable, regarding the dog’s presence. Tex. Gov’t Code § 21.012(d), (f).

 

 

 

 

 

 

 

 

[Sections 8.73 through 8.80 are reserved for expansion.]

IX.  Indigence

§ 8.81Claiming Indigence in Trial Court

Rule 145 of the Texas Rules of Civil Procedure provides rules under which a party may proceed without paying costs, meaning any fee charged by the court or an officer of the court, including filing fees, fees for issuance and service of process, fees for copies, fees for a court-appointed professional, and fees charged by the clerk or court reporter for preparation of the appellate record. See Tex. R. Civ. P. 145(a).

A party who cannot afford payment of court costs must file the Statement of Inability to Afford Payment of Court Costs approved by the Texas Supreme Court or another sworn document containing the same information. The statement must be signed before a notary or made under penalty of perjury. Tex. R. Civ. P. 145(b).

The court clerk must make the statement available to any person for free without request. The clerk may return a statement for correction only if it is not sworn—not for failure to attach evidence or any other reason. After the sworn statement is filed, the clerk must docket the case, issue citation, and provide any other service that is ordi­narily provided to a party. Tex. R. Civ. P. 145(c).

The declarant—the person filing the statement—should submit with the statement any available evidence of the declarant’s inability to afford payment of costs. An attachment that demonstrates any of the following is prima facie evidence: (1) that the declarant or the declarant’s dependent receives benefits from a means-tested government entitle­ment program; (2) that the declarant is being represented by an attorney providing legal services through a provider funded by the Texas Access to Justice Foundation or the Legal Services Corporation or through a nonprofit providing civil legal services to those meeting certain poverty standards; or (3) that the declarant has applied for free legal services through a provider described in (2) and was found financially eligible but was declined representation. Tex. R. Civ. P. 145(b), (d).

A motion to require the declarant to pay costs must meet certain requirements. A motion filed by the clerk, the court reporter, or a party must contain sworn evidence—not merely allegations—that the statement was materially false when made or that, because of changed circumstances, it is no longer true. The court on its own may require the declarant to prove the inability to afford costs if evidence comes before the court that the declarant may be able to afford costs or when an officer or professional must be appointed in the case. Tex. R. Civ. P. 145(e).

Before the declarant may be required to pay costs, certain procedural requirements must be satisfied. There must be an oral evidentiary hearing, with ten days’ notice to the declarant, either written and served in accordance with rule 21a or given in open court. At the hearing, the burden is on the declarant to prove the inability to afford costs. An order requiring payment of costs must be supported by detailed findings that the declar­ant can afford to pay costs. The court may order that the declarant pay part of the costs or pay in installments, but the court may not delay the case if payment is made in installments. An order requiring the declarant to pay costs must contain, in conspicuous type, a prescribed notice of the right to appeal. Tex. R. Civ. P. 145(f).

Only the declarant may challenge a trial court order under rule 145. On this challenge, accomplished by motion filed in the court of appeals, filing fees may not be charged. The motion must be filed within ten days after the trial court’s order is signed, although the court of appeals may extend the deadline by fifteen days for good cause demon­strated in writing. Tex. R. Civ. P. 145(g)(1)–(2).

After the motion challenging the trial court’s order is filed, the court of appeals must promptly send notice to the trial court clerk and the court reporter requesting prepara­tion of the record of all trial court proceedings on the indigence claim. The court may set a deadline for filing the record, which must be provided without charge. The court of appeals must rule on the motion as early as practicable. Tex. R. Civ. P. 145(g)(3)–(4).

The trial court judgment may not require the declarant to pay costs—and a provision in the judgment purporting to do so is void—unless the court has issued an order that complies with rule 145(f) or the declarant has obtained a monetary recovery and the court orders the recovery to be applied toward payment of costs. Tex. R. Civ. P. 145(h).

When the declarant requests preparation of the reporter’s record, the court must desig­nate the portions of the record to be transcribed. Tex. R. Civ. P. 145(i).

Provisions in the Family Code for the appointment of counsel for indigent parents in a suit for termination or appointment of a conservator brought by a governmental entity are discussed in sections 13.3 and 50.31 of this manual.

§ 8.82Indigence on Appeal

Rule 20.1 of the Texas Rules of Appellate Procedure provides rules under which indi­gent parties may proceed without payment of filing fees in the appellate court. See Tex. R. App. P. 20.1. A determination of indigence in the trial court carries forward to appeal in all cases, and there are also some other circumstances in which a party may be allowed to proceed in the appellate court without paying filing fees. The provisions of rule 20.1 regarding appellate filing fees, as well as further requirements regarding pro­vision of the appellate record, are discussed in section 26.18 of this manual.