TRCP 47: The Overlooked Rule That Can Ruin Your Discovery Plan

prohibitedMuch ado is being made about the recent changes to the Texas Rules of Civil Procedure, especially the new dismissal rule (TRCP 91a, for more information see and the expedited action rule (TRCP 169). But one often overlooked procedural rule implemented with the dismissal and expedited action rules has some attorneys wondering why their discovery is not being answered.

Texas Rule of Civil Procedure 47, entitled (innocuously enough) “Claims for Relief,” was revised as part of an implementation package to allow courts to triage cases into expedited and non-expedited actions:

Rule 47. Claims for Relief

An original pleading which sets forth a claim for relief, whether an original petition, counterclaim, cross-claim, or third-party claim, shall contain:

(a) a short statement of the cause of action sufficient to give fair notice of the claim involved;

(b) a statement that the damages sought are within the jurisdictional limits of the court;

(c) except in suits governed by the Family Code, a statement that the party seeks:

(1) only monetary relief of $100,000 or less, including damages of any kind, penalties, costs, expenses, pre-judgment interest, and attorney fees; or

(2) monetary relief of $100,000 or less and non-monetary relief; or

(3) monetary relief over $100,000 but not more than $200,000; or

(4) monetary relief over $200,000 but not more than $1,000,000; or

(5) monetary relief over $1,000,000; and

(d) a demand for judgment for all the other relief to which the party deems himself entitled.

With the exception of subsection (c)—the procedural rule for implementing the expedited action rule—this should all sound very familiar to Texas practitioners. However, it is the text after the rule that carries the “bite”:

. . . A party that fails to comply with (c) may not conduct discovery until the party’s pleading is amended to comply.

You read that correctly. No discovery until your pleading (filed after March 1, 2013) is brought into compliance with the new rule. More than a few attorneys have been confounded in recent months by the objection “Discovery is not permitted at this time in accordance with the Texas Rules of Civil Procedure.” Thankfully, you will not be among them.

The full text of the rule can be found here:

El Apple: A Delicious Spanish Fruit or a New Pitfall for Attorneys Seeking Fees?

apples2Although the Texas Supreme Court handed down its El Apple opinion over 10 months ago, attorneys continue to submit inadequate affidavits and fail to provide redacted fee bills in discovery, causing a number of trial courts to outright deny the recovery of attorney’s fees even in cases where such fees are available under the various statutes authorizing recovery of attorney’s fees.

The pitfall is an easy one to fall into. That is because for nearly 30 years an attorney could submit an affidavit containing the number of hours worked, the rate charged, and an obligatory statement that the fees are “reasonable and necessary,” and this would be sufficient evidence for an award of attorney’s fees. Alas, not any more.

The Texas Supreme Court now requires, at least in cases utilizing the Lodestar Method to calculate attorney’s fees, that an attorney submit “contemporaneous billing records or other documentation recorded reasonably close to the time when the work is performed.” El Apple I, Ltd. v. Olivas, 370 S.W.3d 757, 763 (Tex. 2012). These billing records must include “at a minimum, documentation of the services performed, who performed them and at what hourly rate, when they were performed, and how much time the work required.” Id. at 764.

There is an open question as to whether these new requirements for detailed, contemporaneous billing records apply in cases not relying on the Lodestar Method for calculating attorney’s fees. Given the broad language of the El Apple opinion, however, it is likely that the reasoning is applicable in all instances where an attorney is seeking “reasonable and necessary” attorney’s fees, encompassing nearly all attorney’s fees awards in Texas. A prudent trial attorney would be well-advised not only to keep reasonably-detailed contemporaneous billing records, but to provide redacted copies of those records to opposing counsel before the discovery deadline to avoid issues of admissibility at trial.

While El Apple will continue to be a poisonous fruit to unwitting trial lawyers in their efforts to recover attorney’s fees, savvy trial lawyers will savor the sweet taste of victory when they use this appellate gem to obtain a well-documented and reasoned fee award rightfully belonging to the client.

The full El Apple case can be found here: