TRCP 270: A Post-Trial Evidentiary Mulligan


In golf, a mulligan is a stroke that is replayed from the spot of the previous stroke without penalty, due to an errant shot made on the previous stroke. The result is, as the hole is played and scored, as if the first errant shot had never been made. Mulligans are disallowed entirely by the rules of golf and players who attempt it or agree to let it happen may be disqualified from sanctioned competitions.

Unlike the rules of golf, the Texas Rules of Civil Procedure allow for attorneys to introduce evidence that was not originally introduced at trial before a judgment is rendered—a post-trial evidentiary mulligan. Under Texas Rule of Civil Procedure 270, “[w]hen it clearly appears to be necessary to the due administration of justice, the court may permit additional evidence to be offered at any time; provided that in a jury case no evidence on a controversial matter shall be received after the verdict of the jury.” Tex. R. Civ. P. 270.

Such an evidentiary mulligan was at issue in the recent 14th Court of Appeals case, Harvest Life Foundation v. Harris County Appraisal Dist., 2013 WL 2456867 (Tex. App.—Hous. [14th Dist.] 2013). Harvest Life applied for exemptions for two tracts of property for tax years 2007–2009 and seven tracts for tax years 2008–2009 on the ground that the properties were used for charitable purposes. At the close of evidence, HCAD argued that Harvest Life failed to present evidence that any of the properties were certified as a halfway house by the pardons and paroles division of TDCJ—the exemption for which Harvest Life applied—and HCAD had presented a page from the TDCJ’s website showing Harvest Life was not one of seven certified halfway houses in Texas.

Due to a dispute over the scope of a pre-trial stipulation, and given the motion for directed verdict, the trial court re-opened the evidence to review Harvest Life’s applications, which had not been offered. Subsequently, HCAD filed supplemental exhibits, consisting of the complete applications for tax years 2007–2009, and additional briefing. In its responses, Harvest Life objected to the filing of supplemental evidence. On August 19, 2011, the trial court conducted another hearing and admitted the supplemental evidence. The Court ultimately ruled, based in large part on the supplemental evidence, that Harvest Life failed to qualify for an exemption for all but one tract of land.

This rule is certainly not new. In Texas Emp. Ins. Ass’n v. Elder, 282 S.W.2d 371, 375–76 (Tex. 1955), the Texas Supreme Court opined that evidence may be entered at any time before the Court of Appeals disposes of the appeal of the trial court judgment:

“It will be observed that at the time that motion was filed in the trial court the case had already been affirmed by the Court of Civil Appeals. The trial court did not err in refusing to consider that evidence, for it had lost jurisdiction of the case. While the rule does provide that the court may permit additional evidence to be offered ‘at any time,’ that language should not be construed to mean that new evidence should be considered by the trial court after a case has been affirmed by the Court of Civil Appeals.”

The rule is not an absolute guarantee that the trial court will allow additional evidence. The decision to reopen the evidence is within the sound discretion of the trial court. In re Hawk, 5 S.W.3d 874, 876–77 (Tex. App.—Houston [14th Dist.] 1999, no pet.). In deciding whether to exercise this discretion, the court may consider a number of factors, including (1) the diligence of a party in presenting its evidence, (2) whether reopening the evidence will cause undue delay, (3) whether reopening the evidence “will do an injustice,” and (4) whether the evidence to be introduced is decisive. Id. at 877. The trial court should exercise its discretion liberally “in the interest of permitting both sides to fully develop the case in the interest of justice.” Id.

Given the standard above, Rule 270 mulligans, like mulligans in golf, should be used rarely, if at all, and only when absolutely necessary to ensure a full and fair trial court proceeding. However, one should be aware of this underutilized and oft-forgotten rule, if only for those times when your first (evidentiary) shot finds the water, the trees, or the backyard of a home adjacent to the golf course.

Sex, Drugs & Attorney-Qualified Immunity

You don’t have to fire the private investigator you hired to spy on the opposing party. The 14th Court of Appeals at Houston has recently released a new opinion clarifying the bounds of attorney-qualified immunity as it relates to privacy torts.

Professor Deana Pollard Sacks filed suit against the Houstonian back in 2009 alleging a host of improper acts (including ignoring reports of sexual activity and drug use at the Houstonian) after the Houstonian terminated her club membership (more information regarding the suit can be found at During the suit, Professor Sacks turned her ire to the attorneys for the Houstonian, alleging that the attorneys “improperly and illegally” obtained her medical records from another attorney representing a defendant in a different case brought by Sacks, who allegedly “improperly and illegally” obtained the records from Sacks’ dentist.

The attorneys for the Houstonian answered, asserting the affirmative defense of attorney-qualified immunity and arguing that they were qualifiedly immune from Sacks’ suit because she was seeking to hold them liable for their litigation conduct in a pending suit. The trial court granted summary judgment in favor of the attorneys. Sacks appealed.

Because Sacks alleged that attorneys committed the intentional tort of invasion of privacy, the 14th Court considered “whether Sacks’ allegations of invasion of privacy fall into the class of torts recognized by Texas involving fraudulent or malicious conduct so as to preclude [the attorneys for the Houstonian] from litigation immunity.” The Court held that the claims did not.

The Court of Appeals noted that “[c]ourts have consistently held that attorneys should not be liable for statements made or actions taken in the course of representing their clients, because they would then be forced to balance their own potential exposure against their clients’ best interests . . . . However, this litigation immunity does not apply to alleged torts based on the attorney‘s fraudulent or malicious conduct.” The Court held that “an invasion-of-privacy claim is not one of the recognized types of behavior that falls into the category of fraudulent or malicious conduct identified by courts of this state.” The Court reasoned that “the conduct about which Sacks complains is the type of conduct in which attorneys routinely engage when zealously defending their clients: they conduct discovery to assist in representing their clients in pending litigation, often hiring investigators to inquire into many aspects of an adversary’s life.” The Court finally noted that “if [Sacks] had any evidence that opposing counsel were abusing the discovery process, discovery sanctions would be available to her.”

This ruling by the 14th Court of Appeals clarifies the contours of attorney-qualified immunity as it relates to invasion of privacy torts and will undoubtedly serve as a bulwark in protecting attorneys engaged in zealous representation during the discovery process.

[Editors Note: Congratulations to Dawn S. Holiday and the Appellate Team at Roberts Markel Weinberg PC for obtaining a victory in favor of the attorneys for the Houstonian]

The full opinion can be found at: