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Rule 330. Rules of Practice and Procedure in Certain District Courts (1955)

TEXT

The following rules of practice and procedure shall govern and be followed in all civil actions in district courts in counties where the only district court of said county vested with civil jurisdiction, or all the district courts thereof having civil jurisdiction, have successive terms in said county throughout the year, without more than two days intervening between any of such terms, whether or not anyone or more of such district courts include one or more other counties within its jurisdiction.

(a) Appealed Cases.

In cases appealed to said district courts from inferior courts, the appeal, including transcript, shall be filed in the district court within thirty (30) days after the rendition of the judgment or order appealed from, and the appellee shall enter his appearance on the docket or answer to said appeal on or before ten o'clock a. m. of the Monday next after the expiration of twenty (20) days from the date the appeal is filed in the district court.

(b) Setting Cases for Trial, etc.

On the first Monday in each calendar month the judge of each court may, and as far as practicable shall, set for trial during the calendar month next after the month during which the setting is made, all contested cases which are requested to be set, and by agreement of the parties, or on motion of either party, or on the court's own motion with notice to the parties, the court may set any case for trial at any time so as to allow the parties reasonable time for preparation. Non-contested cases may be tried or disposed of at any time whether set or not, and may be set at any time for any other time.

(c) Postponement or Continuance.

Cases may be postponed or continued by agreement with the approval of the court, or upon the court's own motion or for cause. When a case is called for trial and only one party is ready, the court may for good cause either continue the case for the term or postpone and reset it for a later day in the same or succeeding term.

(d) Cases May Be Reset.

A case that is set and reached for trial may be postponed for a later day in the term or continued and reset for a day certain in the succeeding term on the same grounds as an application for continuance would be granted in other district courts. After any case has been set and reached in its due order and called for trial two (2) or more times and not tried, the court may dismiss the same unless the parties agree to a postponement or continuance but the court shall respect written agreements of counsel for postponement and continuance if filed in the case when or before it is called for trial unless to do so will unreasonably delay or interfere with other business of the court.

(e) Exchange and Transfer.

Where in such county there are two or more district courts having civil jurisdiction, the judges of such courts may, in their discretion, exchange benches or districts from time to time, and may transfer cases and other proceedings from one court to another, and any of them may in his own courtroom try and determine any case or proceeding pending in another court without having the case transferred, or may sit in any other of said courts and there hear and determine any case there pending, and every judgment and order shall be entered in the minutes of the court in which the case is pending and at the time the judgment or order is rendered, and two (2) or more judges may try different cases in the same court at the same time, and each may occupy his own courtroom or the room of any other court. The judge of any such court may issue restraining orders and injunctions returnable to any other judge or court, and any judge may transfer any case or proceeding pending in his court to any other of said courts, and the judge of any court to which a case or proceeding is transferred shall receive and try the same, and in turn shall have power in his discretion to transfer any such case to any other of said courts and any other judge may in his courtroom try any case pending in any other of such courts.

(f) Cases Transferred to Judges Not Occupied.

Where in such counties there are two or more district courts having civil jurisdiction, when the judge of any such court shall become disengaged, he shall notify the presiding judge, and the presiding judge shall transfer to the court of the disengaged judge the next case which is ready for trial in any of said courts. Any judge not engaged in his own court may try any case in any other court.

(g) Judge May Hear Only Part of Case.

Where in such counties there are two or more district courts having civil jurisdiction, any judge may hear any part of any case or proceeding pending in any of said courts and determine the same, or may hear and determine any question in any case, and any other judge may complete the hearing and render judgment in the case.

(h) Any Judge May Hear Dilatory Pleas, etc.

Where in such county there are two or more district courts having civil jurisdiction, any judge may hear and determine, motions, petitions for injunction, applications for appointment of receiver’s, interventions, pleas of privilege, pleas in abatement, all dilatory pleas and special exceptions, motions for a new trial and all preliminary matters, questions and proceedings and may enter judgment or order thereon in the court in which the case is pending without having the case transferred to the court of the judge acting, and the judge in whose court the case is pending may thereafter proceed to hear, complete and determine the case or other matter, or any part thereof, and render final judgment therein. Any judgment rendered or action taken by any judge in any of said courts in the county shall be valid and binding.

(i) Selection of Presiding Judge.

When in such county there are two or more district courts having civil jurisdiction, the judges of such courts shall twice a year, in January and July, select one of their number as Presiding Judge and may at any time cancel and annul such selection and select any other judge as Presiding Judge. Each such proceeding shall be by majority vote. Each judge shall enter on his minutes an order reciting the selection of the Presiding Judge. The Presiding Judge may assign any case in his court or any of such courts in the county to any other judge or court or may assign any judge to try any case in any of the courts, and the judge in whose court an assigned case is pending shall transfer the case to the court to which it is assigned, and the judge of the court to which it is assigned shall receive and try the case, and such judge shall hold any other court or try any case which he is requested by the Presiding Judge to try.

(j) Acts in Succeeding Terms

If a case or other matter is on trial, or in the process of hearing when the term of court expires, such trial, hearing or other matter may be proceeded with at the next term of court and no motion or plea shall be considered as waived or overruled, because not acted upon at the term of court at which it was filed, but may be acted upon at any time the judge may fix or at which it may have been postponed or continued by agreement of the parties with leave of the court. This subdivision is not applicable to original or amended motions for new trial which are governed by Rule 329-b.

Note: New Rule. The provisions of old Rule 330(j) are incorporated in Rule 329-b. Rule 330(k) is repealed. The provisions of old Rule 330(k) are incorporated in Rule 329-b. Rule 330 (l) is repealed. The provisions of old Rule 330(l) are incorporated in Rule 329-b.

Amended by order of July 20, 1954, eff. Jan. 1, 1955.

ADVISORY OPINIONS

(No. 31) Question: In order to preserve his right to be further heard in the event a judgment non obstante veredicto in his favor is reversed on appeal, is it necessary for a party to file a motion for new trial in the alternative at the time he files the motion for judgment non obstante veredicto? If such motion is necessary, when does the time begin to run for filing the amended motion for new trial under amend Rule 330(k)?

Answer: It is not necessary for the appellee to file an alternative motion for new trial at the time he files his motion for judgment non obstante veredicto in order to preserve his right to be further heard with respect to any matter shown by the record if the judgment non obstante veredicto in his favor is reversed on appeal. If appellee desires to complain in the trial court or in the appellate court of any matter which will not appear in the record unless through the filing of a motion for new trial, such, motion should be filed (Rule 325). The time for filing the motion or amended motion in courts having a continuous term as defined in Rule 330 (counties like Harris) is regulated by Rule 330(k). Where the term of court is not continuous as defined in Rule 330, the matter is regulated by Rule 320(a). The necessary prerequisite to the right of appellee to be further heard in the event the judgment non obstante veredicto in his favor is reversed on appeal is that he must bring forward in his brief the points of error committed against him on the trial and shown by the record (i.e., those matters required by Rule 325 to be set out in a motion for new trial, and those matters otherwise appearing in the record) which would prevent the affirmance of the judgment even if one had been entered by the trial court in harmony with the verdict. See the decision of the Supreme Court in Le Master v. Fort Worth Transit Co., 138 Tex. 512, 160 S.W.2d 224 (1942).

5 Tex. B.J. 170 (1942) reprinted in 8 Tex. B.J. 15 (1945).

(No. 64) Question: In requiring that Motions for New Trial be "presented" within 30 days after being filed, is it essential under Rule 330(j) that the losing party have the merits of his motion, actually considered by that time; or, without suffering the consequences of such motion being overruled by operation of law, on, the thirtieth day, may, he safely submit it only formally in such period, and have the argument and consideration occur so that the motion is acted on, by the 45 th day after it is filed?

Answer: Subdivision (j) of Rule 330 is an exact copy of Article 2092 subdivision 28, and the provisions of said statute have heretofore been construed a number of times by our courts. Dallas Storage & Warehouse Co. v. Taylor, 124 Tex. 315, 77 S.W.2d 1031 (1934); Millers Mut. Fire Ins. Co. v. Wilkirson, 124 Tex. 312, 77 S.W.2d 1035 (1934); Independent Life Ins. Co. v. Work, 124 Tex. 281, 77 S.W.2d 1036 (1934).

The subcommittee is of the opinion that the provision of the Rule is mandatory that the Motion for New Trial or amended motion must be presented within thirty days after it is filed. The question asks whether a litigant may safely submit the motion "only formally" within such thirty day period and then submit argument to the judge later. In our opinion the presentation, of the motion within the thirty day period, must be unqualified and without reservation. However, the Rule expressly provides that the judge shall have forty-five days from the filing of the original or amended motion within which he may determine the motion, and this forty-five day period may be extended by written agreement of the parties in the case; and we feel that at any time before the judge has handed down his decision upon the motion it would clearly be within his discretion to hear argument from counselor consider authorities should he see fit to do so in order to assist him in arriving at his decision. We do not feel that the hearing of argument or the consideration of authorities after the expiration of thirty days would be inconsistent with the fact that the motion had actually been presented within the thirty day period, if the record showed that as a matter of fact the motion was presented without any qualification or reservation within the thirty day period.

5 Tex. B.J. 427 (1942) reprinted in 8 Tex. B.J. 26 (1945).

(No. 128) Question: Do the provisions of Rules 330 and 331 apply to district courts having successive and continuous terms and civil jurisdiction, even though they also have criminal jurisdiction?

Answer: We think the answer should be in the affirmative.

The enabling act (H. B. 108, 46th Leg.) conferred upon the Supreme Court "full rule-making power in the practice and procedure in civil actions." Rule 2 defined the scope of the rules to embrace and govern the procedure in the justice, county, district and appellate courts of the State of Texas "in all actions of a civil nature" with certain exceptions not now material. The rules did not purport to deal with questions of either jurisdiction or venue (Rule 816). The fact that the particular court in which the civil action was pending had both civil and criminal jurisdiction could not affect or impair the application of the rules to the civil action.

At the time the rules were formulated, there was a distinct trend toward successive and continuous terms of courts, as far as was permissible under the Constitution. That trend still persists. It was hoped at the time that the legislature would provide for successive and continuous terms and it did so in many cases. The rules in their general scope were devised to meet such a development.

Article 2092, which was repealed at the time the rules were adopted, provided certain rules of practice and procedure in civil district courts in counties having two or more district courts with civil jurisdiction only. In formulating Rule 330, it is significant that the word "only,” which appeared in Article 2092, was omitted, because the manifest intention was that the rules should apply to civil actions not only in courts having civil jurisdiction only but also in courts having both civil and criminal jurisdiction.

7 Tex. B.J. 282 (1944) reprinted in 8 Tex. B.J. 48 (1945).

Questions: In counties where there is one District Court of general jurisdiction having continuous terms, and there is another District Court having criminal jurisdiction and civil jurisdiction only as to divorce and tax suits, which court does not have continuous terms;

I. Does Rule 330 apply to the court having general jurisdiction and continuous terms?

II. Does "civil jurisdiction" as used in Rule 330 mean general civil jurisdiction or does the term apply to courts having limited jurisdiction such as set out above?

Answers: I. Rule 330 applies to all civil actions in District Courts in counties where:

1. The only District Court having civil jurisdiction has continuous terms.

2. All District. Courts having civil jurisdiction have continuous terms.

Since both of such courts have civil jurisdiction and one of them does not have continuous terms, then Rule 330 would not apply to either of such courts in such county.

II. It is our opinion that the words "civil jurisdiction" as used in Rule 330 would apply to all courts having civil jurisdiction regardless of how limited the civil jurisdiction may be.

The object of the rule is to prevent having different rules of procedure in the same county. In other words, if Rule 330 applies to the Court of General Civil Jurisdiction and not to the Court of Limited Jurisdiction, then as to divorce and tax suits, there would be different rules of procedure in such cases depending on which court tried the case which would result in confusion and would probably result in prejudice to a litigant's right of appeal by errors made by his attorney.

9 Tex. B.J. 262 (1946).

Question: The District Courts of McLennan County have continuous terms except for the following provisions: "unless the business of the court shall be sooner disposed of." (Article 199, -19, 54, 74, as amended May 22, 1937.)

Do these courts come within Rule 330, "Rules of Practice in Certain District Courts," or do these courts come within Rule 320 in regard to the time in which to file motions for new trial?

Answer: In the opinion of the Committee, the District Courts of McLennan County are governed by Rule 330 and not Rule 320. Article 199, Sections 19, 54 and 74 as amended by the 45th Legislature in 1937 provides "each of said terms may continue until and including the Saturday next preceding the date for the beginning of the next succeeding term unless the business of the term shall be sooner disposed of." Article 199, Sections 17, 48, 67 and 79, provides that the District Courts of Tarrant County "shall continue until the business is disposed of." In the case of Super-Cold Southwest Co. v. Green & Romans, 185 S.W.2d 749 (Tex. Civ. App.-Fort Worth 1945), the Fort Worth Court of Civil Appeals held that the District Courts of Tarrant County are regulated by Rule 330. Also see Gillete Motor Transp. Co. v. Wichita Falls & S. R.R. Co. , 170 S.W.2d 629 (Tex. Civ. App.-Fort Worth 1943).

The Legislature, in creating continuous terms for the District Courts in Judicial Districts Nos. 1, 2, 3, 7, 10, 12, 16, 18, 21, 22, 24, 27, 29, 30, 31, 32, 33, 35, 36, 38, 47, 49, 50, 51, 52, 56, 63, 64, 69, 70, 72, 81, 84, 85, 86, 90, 103, 106, 107, 108, 109, 110, 112 and 119, uses substantially the following language: "each term ... may continue until the date herein fixed for the beginning of the next succeeding term." That language was construed by the Dallas Court of Civil Appeals in the case of Federal Underwriters Exch. v. Bailey, 175 S.W.2d 618 (Tex. Civ. App.-Dallas 1943), as bringing the 86th District Court of Kaufman County under Rule 330. Likewise in the case of Traders & General Ins. Co. v. Scott, 189 S.W.2d 633 (Tex. Civ. App.-Fort Worth 1945), the Fort Worth Court of Civil Appeals said that the 30th Judicial District Court of Wichita County, whose terms are substantially the same as Kaufman County, comes under Rule 330.

In a few instances the Legislature uses the term "shall continue" insteadof "may continue" but obviously the Legislature intended for these Courts to come under Rule 330 even though by the language "may continue" the term of Court could, as it may in the District Courts of McLennan County, come to an end when the business of the Court is disposed of before the end of the term.

10 Tex. B.J. 155 (1947).