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Rule 166. Pretrial Conference (2003)

TEXT

In an appropriate action, to assist in the disposition of the case without undue expense or burden to the parties, the court may in its discretion direct the attorneys for the parties and the parties or their duly authorized agents to appear before it for a conference to consider:

(a) All pending dilatory pleas, motions and exceptions;

(b) The necessity or desirability of amendments to the pleadings;

(c) A discovery schedule;

(d) Requiring written statements of the parties' contentions;

(e) Contested issues of fact and simplification of the issues;

(f) The possibility of obtaining stipulations of fact;

(g) The identification of legal matters to be ruled on or decided by the court;

(h) The exchange of a list of direct fact witnesses, other than rebuttal or impeaching witnesses the necessity of whose testimony cannot reasonably be anticipated before the time of trial, who will be called to testify at trial, stating their address and telephone number, and the subject of the testimony of each such witness;

(i) The exchange of a list of expert witnesses who will be called to testify at trial, stating their address and telephone number, and the subject of the testimony and opinions that will be proffered by each expert witness;

(j) Agreed applicable propositions of law and contested issues of law;

(k) Proposed jury charge questions, instructions, and definitions for a jury case or proposed findings of fact and conclusions of law for a nonjury case;

(l) The marking and exchanging of all exhibits that any party may use at trial and stipulation to the authenticity and admis­sibility of exhibits to be used at trial;

(m) Written trial objections to the opposite party's exhibits, stating the basis for each objection;

(n) The advisability of a preliminary reference of issues to a master or auditor for findings to be used as evidence when the trial is to be by jury;

(o) The, settlement of the case, and to aid such consideration, the court may encourage settlement;

(p) Such other matters as may aid in the disposition of the action.

The court shall make an order that recites the action taken at the pretrial conference, the amendments allowed to the pleadings, the time within which same may be filed, and the agreements made by the parties as to any of the matters considered, and which limits the issues for trial to those not disposed of by admissions, agreements of counsel, or rulings of the court; and such order when issued shall control the subsequent course of the action, unless modified at the trial to prevent manifest injustice. The court in its discretion may establish by rule a pretrial calendar on which actions may be placed for consideration as above provided and may either confine the calendar to jury actions or extend it to all actions.

Pretrial proceedings in multidistrict litigation may also be governed by Rules 11 and 13 of the Rules of Judicial Administration.

Amended by order of Aug. 29, 2003, eff. Sept. 1, 2003: Last paragraph added.

ADVISORY OPINIONS

Question: Was the repeal of Article 2013 at the time of the adoption of the Rules on September 1, 1941, intentional?

Answer: Yes. Article 2013 required that dilatory pleas be disposed of during the term at which they were filed. Rules 84, 166, and 175 require them to be disposed of before the trial on the merits. The tendency is to depart from term time as a limitation upon procedural steps, and the requirement of disposition before the trial on the merits is thought to be a sufficient deterrent of dilatory tactics.

5 Tex. B.J. 53 (1942) reprinted in 8 Tex. B.J. 7 (1945).

Question: "In construing Rule 63 and Rule 166 would an order under Rule 166, on the pre-trial of the case, to the effect that such pre-trial was the beginning of the trial and that no amendment would be permitted thereafter without permission of the court, conflict with the provisions of Rule 63, which provides that amendments may be made without leave of the court prior to seven days before the trial of the case?"

Answer: It is the opinion of the Committee that such an order would be in conflict with Rule 63, and that the pre-trial procedure does not fix the date of the beginning of the trial, and a party would have the right to file amended pleadings up until seven days prior to the actual trial. When Rule 63 is read in connection with Rule 66, permitting trial amendments, it appears clear that it is the spirit of the rules that there should be little, if any, stricture imposed upon the filing of amendments. Rule 166 is limited to preliminary matters and is not intended to fix a date to be taken as the actual beginning of the trial of the case.

11 Tex. B.J. 276 (1948).