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:

TRCP 91a: A State Court 12(b)(6)?

frivilousAttorneys in Texas have a new weapon in the ever-constant battle against “frivolous” lawsuits. The only question that remains is whether that weapon will ever see the battlefield, or, like the often-touted (but almost never used) “loser-pays” offer of settlement, will the rule remain locked within the pages of the Texas statutes—never to see the light of a Texas courtroom?

The new dismissal rule, Texas Rule of Civil Procedure 91a, began as a bright idea within the hallowed halls of the Texas legislature. “The Legislature . . . directed that a more determined effort be made to reduce the expense and delay of litigation, while maintaining fairness to litigants.”

While certainly anyone who has had the misfortune of dealing with a vexatious litigant can sympathize with the desire to fast-track dismissals of frivolous lawsuits, as Milton Friedman once observed, “The government solution to a problem is usually as bad as the problem.”

In response to the perceived wide-spread problem, the legislature passed HB 274. HB 274 added Government Code § 22.004(g), which calls for rules “for the dismissal of causes of action that have no basis in law or fact on motion and without evidence . . . [to be] granted or denied within 45 days of the filing of the motion to dismiss.”

The Texas Supreme Court, in complying with the mandate of § 22.004(g), promulgated the new Texas Rule of Civil Procedure 91a, entitled “Dismissal of Baseless Causes of Action.”

The new rule provides: “Except in a case brought under the Family Code or a case governed by Chapter 14 of the Texas Civil Practice and Remedies Code, a party may move to dismiss a cause of action on the grounds that it has no basis in law or fact. A cause of action has no basis in law if the allegations, taken as true, together with inferences reasonably drawn from them, do not entitle the claimant to the relief sought. A cause of action has no basis in fact if no reasonable person could believe the facts pleaded.”

Anyone who has stepped foot in a federal court or a law school civil procedure course should have at least some familiarity with the language of the new Rule 91a, as the language tracks Federal Rule of Civil Procedure 12(b)(6) (as interpreted post-Twombly):

Legal Insufficiency

FRCP 12(b)(6) – “Failure to state a claim upon which relief can be granted”

TRCP 91a – “[A]llegations . . . do not entitle the claimant to the relief sought.”

Factual Insufficiency

FRCP 12(b)(6) – Must cross “the line between possibility and plausibility of entitlement to relief.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007).

TRCP 91a – “[N]o reasonable person could believe the facts pleaded.”

While the prospect of a state court 12(b)(6) sounds encouraging at first, the problems with the new rule become apparent as you continue reading. According to the rule, “the court must award the prevailing party on the motion all costs and reasonable and necessary attorney fees incurred with respect to the challenged cause of action in the trial court. The court must consider evidence regarding costs and fees in determining the award.”

That’s right, you read that correctly: mandatory attorney’s fees. If the bells and whistles in your risk-adverse mind are not going off, you just might be one of the few who has invoked the “loser-pays” offer of settlement under HB4.

It remains to be seen if attorneys will use the new dismissal rule to pare-down or eliminate groundless lawsuits, or equally important, whether judges will grant these new motions to dismiss in appropriate cases. Until some data is available, I suspect the “bite” of mandatory attorney’s fees will serve as a sufficient deterrent to widespread use.

The new rule can be found at:

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:

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:

Appellate Law for Texas Trial Lawyers

Thank you for visiting! This Blog chronicles important appellate decisions that impact all areas of Texas court practice. What is unusual about this particular blog is that it is an appellate blog created for trial lawyers instead of appellate lawyers. Why create an appellate blog for trial lawyers? Simple. Because by the time you decide it is time to call an appellate lawyer, it is often too late to preserve error or perfect an appeal. Trial lawyers face potential appellate issues from initial client contact through post-trial motions, and everything in between. From failing to include a “Mother Hubbard” clause in a summary judgment order to refusing to provide attorney’s fees invoices and waiving your right to recover attorney’s fees, costly errors and omissions await the unsuspecting trial lawyer at every turn. How is one to avoid the seemingly endless array of snares and pitfalls awaiting at every step of litigation? Preserving error since 2013.