By: Akanksha A. Panicker
Civil procedure in the United States includes the laws regulating civil proceedings in the judiciary’s federal, state, and local structures and varies from those regulating criminal actions. Like with all of the American law, civil procedure is not restricted only to the federal government under the constitution. As a direct result, each state can run its own civil process framework, irrespective of its counterpart states and the federal judicial system. Civil litigation is broken into 3 main phases: pre-trial, trial, and post-trial. Each of these phases has certain tasks that must be completed to protect the rights of everyone involved in the lawsuit.
[1.0] FILING OF THE CASE
Cases must be filed in the proper county and court and with the proper clerk’s office since each county is different. The information included in the petition must be specific and filled out before being submitted to the Clerk of the Court’s office. It is necessary to take 3 copies of the same, whereupon the clerk will stamp them to verify the nature of one’s petition and allow the court to grant the reliefs sought after in the petition.
.A filing fee will have to be paid, often above USD 200. If the fee is not tenable, an affidavit or statement of inability to afford the same must be filed instead, called a Pauper’s Oath or Statement of Inability to Afford Payment of Court Costs
[2.0] NOTICE, SERVICE OF PROCESS AND RESPONSE
To give a legal notice, the court clerk must issue a citation and arrange for a process server to give the citation to the defendant, who cannot be served by the party issuing the summons. The only way to avoid formally serving the Respondent is if the case is uncontested, and the respondent shows their agreement by signing and filing a Waiver of Citation.
Process server requirements: Process servers must be certified to fulfill the procedure. The Process Server Certification Board regulates the Texas Process Server to serve as soon as they receive the certification card.
New standards for electronic fingerprinting for Certified Process Servers came into effect on 1 September 2014. Every fresh Certified Process Server candidate and Certified Process Servers renewing after 1 September 2014 receive electronic fingerprinting through the Texas Department of Public Safety, Fingerprint Applicant Services of Texas (FAST) Program. The one-time cost of this authentication service is $41.45 for State and National Criminal History Records. Effective July 1, 2005, the Texas Supreme Court adopted changes to Rules 103 and 536(a) of the Texas Rules of Civil Procedure (TRCP) concerning the state-wide Certification of process servers. Consequently, it is necessary to obtain [A.] a certificate of completion from an approved educational course, [B.]electronic fingerprinting through the Texas Department of Public Safety and [C.] a first-time applicants fee of USD 200. The Judicial Branch Certification Commission must approve the educational course. Usually, the course can extend between USD 75 and USD 150 for the course and must be done within a year to apply for certification as a server. Upon receipt of the application, a criminal history background check must be passed, wherein a fingerprinting appointment must be scheduled. If approved, the server will receive a blue certification card in the mail and be included on the list of certified legal process servers.
Process—including citation and other notices, writs, orders, and other papers issued by the court—may be served by [A.] any sheriff or constable, [B.] any person authorized by law or by written order of the court, or [C.] by order of the Supreme Court. All servers must be above the age of eighteen.
[2.1] SERVICE OF PROCESS
Service by registered or certified mail and citation by publication shall, if requested, be issued by the clerk of the court wherein the dispute is outstanding. However, no person who is a participant in or involved in the result of a claim will be allowed to serve any proceedings in that suit. Furthermore, unless otherwise allowed by written court order, only the sheriff or constable may serve as a summons to the action of forcible entry and detainer, a writ requiring the actual taking of possession of a person, property, or object, or a process requiring an enforcement action to be done by the individual who is responsible for the delivery. An order authorizing a person to serve the proceedings may be made without a written request, and no fee may be paid for the issuance of such an order.
A citation must be served by either [A.] delivering a true copy with the date of delivery endorsed on the same or [B.] mailing the defendant by registered or certified mail with a return receipt to be filled with a true copy of the citation. In both events, a copy of the petition should be attached.
[2.1.1] Substituted service:
If the defendant could not be served at the defendant’s usual abode and is supported by an affidavit that attests the same and shows that service has been attempted, service may be authorized by leaving a true copy with anyone over the age of sixteen or by any other manner that would be reasonably effective to give the defendant notice. Filing a Motion for Substituted Service and a Rule 106(b) Affidavit from the constable, sheriff, or private process server is then mandatory. If the judge is convinced that the respondent can be found at the location where service was attempted, the judge can sign an Order for Substituted Service that authorizes the constable, sheriff, or private process server to do the above.
[2.1.2] Service by Publication:
If the defendant cannot be located even after due diligence or not in the state or even a resident of the state, the clerk can allow for service by publication. However, the court needs to be satisfied by the diligence exerted in ascertaining the defendant’s residence or to obtain the service of non-resident notice.
The citation shall be styled “The State of Texas” and shall be directed to the defendant by name if possible. Where there are two or more defendants or classes of defendants to be served by publication, the citation may be directed to all of them by name and classification. That service may be completed by the publication of the one citation for the required number of times. The citation shall contain the names of the parties, a brief statement of the nature of the suit (which need not contain the details and particulars of the claim), a description of any property involved, and of the interest of the named or unknown defendant or defendants, and, where the suit involves land, the requisites of Rule 115.
A district or county court can direct the party to appear and answer before 10 a.m. the Monday 42 days after the citation by publication. If issued from the justice of the peace court, such citation shall command such parties to appear and answer on or before the first day of the first term of court, which convenes after the expiration of 42 days from the date of issue thereof, specifying the day of the week, and the day of the month, that such term will meet.
If the respondent receives notice of the case but thinks that they are outside of the court’s jurisdiction, the respondent should file a Special Appearance before filing anything else. Filing any other type of response before a Special Appearance means that the respondent accepts personal jurisdiction. They should file an Answer with the court clerk to show that they are interested in the case and not ignore the court’s authority. There is generally not a fee to file an Answer.
If the respondent has their own claims against the petitioner, the respondent can tell the court about those claims in a Counter-Petition. There is usually a fee to file a Counter-Petition. An Affidavit or Declaration of Indigency can be used for a Counter-Petition to attempt to waive the filing fees.
Discovery is the legal process each side uses to get information relevant to their case but is in the other side’s possession. A discovery control plan must govern every case, wherein Plaintiff must provide for the same in the first numbered paragraph of the original petition. The Discovery Control Plan can either be Level 1 [Suits Involving $50,000 or Less], Level 2 [which is by rule], or Level 3 [which is by order of the court]
Level One discovery control plans govern suits where the plaintiff seeks only monetary relief of less than $50,000. Every other suit is subject to Level Two discovery control plans unless the court enters a tailored Level Three plan.
Under both Level One and Level Two, parties are limited to twenty-five interrogatories and a total of six hours of oral depositions for a Level One case and fifty hours per side in a Level Two case.
[4.0] RESOLUTIONS WITHOUT A TRIAL
The pre-trial conference seems to be another forum for compromise. At the pre-trial session, the counsel communicates informally to the judge and reflects on the issue’s disputed topics. The lawyers further disclose the evidence they would like to submit and the witnesses they expect to call to testify during the trial. The judge and the attorneys are then able to organize the direction of the proceedings. In convoluted litigation, several conferences can indeed be needed to orchestrate the proceedings.
A case can also be terminated by the court’s use of voluntary and involuntary dismissals. All judicial systems provide some means by which the plaintiff (the person who initiated the lawsuit) can voluntarily dismiss the case without the court’s approval. This may occur when, upon further investigation, the plaintiff realizes that she does not really have a claim worth pursuing. A court can enter an involuntary dismissal upon a defendant’s motion for dismissal because the plaintiff has not taken the appropriate steps to move the case to trials, such as not showing up at scheduled hearings or meetings. Involuntary dismissals are granted sparingly and only when a plaintiff has been particularly negligent, and the delays have put the defendant at a disadvantage.
[4.1] Motions that can be filed:
[4.1.1] Motion to Dismiss: This can be filed in the early stages of litigation, pre-discovery, wherein the complaint itself is considered legally invalid by the defendant. Consequently, the case is evaluated based on the complaint and its exhibits. It can be held invalid based on the court’s lacking in [A.] subject-matter jurisdiction. [B.] personal jurisdiction, [C.] improper venue [D.] insufficiency of process, or [E.] failure to state a claim upon which relief may grant.
In the case of subject-matter jurisdiction, the court cannot rule on the dispute if it takes over another court’s subject-matter. Additionally, if the court does not have the power over the defendant, especially if they do not qualify within the sufficient minimum contact with the initiated lawsuit, the court will also not have personal jurisdiction.
Personal jurisdiction differs from the venue’s issue, wherein the court’s particular location is in question since an individual can be sued in specific places within the state. The lawsuit’s site is of primary importance, and the suit can even be invalid if personal jurisdiction is afforded whereupon the case should be transferred.
Furthermore, either upon the plaintiff’s error or misconstruction of the facts, there might not be an actual legal relief in the circumstances. The allocation of legal responsibility is imperative and must be done right to afford relief to the injured party.
[4.1.2] Summary Judgment Motion: If there is no dispute on key facts, judgment can be entered that allows for the case to be ended before trial. A ruling favoring the individual who believes the facts are in their favor to compel the judgment files this motion, allowing for the court’s consideration and application of law and can allow for the judgment. To prevent a summary judgment, the other party must provide proof of the disputability of the facts.
[4.1.3] Motion for Default Judgment: Default proceedings are set into motion if the defendant fails to answer service or file a motion to dismiss within the time set in the summons. The plaintiff then can ask the court clerk to enter the defendant into default and means that the defendant is disallowed to contest their liability to the plaintiff. The court can then decide the number of damages that a plaintiff is entitled to dispute.
Default proceedings may be set aside if the defendant has an adequate excuse, whereupon they can try to convince the court to set aside or vacate the entry of default from the file. However, this option is highly discretionary, and while courts are allowed to evaluate cases even after default is declared on a casewise basis. However, the court is likely to adjudge that the defendant’s reasons are not sufficient and will refuse to set aside the default entry.
[4.1.4] Sua Sponte Dismissal: Dismissal of ‘one’s own accord’ refers to a motion of dismissal as issued by the court rather than the parties, seen when there may be glaring errors in the trial.
For information on serving legal papers, click here or call (800) 774-6922. Representatives are available Monday-Friday 8 am – 8 pm EST. If you found this article helpful, please consider donating. Thank you for following our blog, A space dedicated to bringing you news on breaking legal developments, interesting articles for law professionals, and educational material for all. We hope that you enjoy your time on our blog and revisit us! We also invite you to check out Frequently Asked Questions About Process Servers.
1. Rule 166 – Pre-trial Conference, Tex. R. Civ. P. 166
2. (a)General Rule. A party who files a Statement of Inability to Afford Payment of Court Costs cannot be required to pay costs except by the court’s order as provided by this rule. After the Statement is filed, the clerk must docket the case, issue citation, and provide any other service that is ordinarily provided to a party. The Statement must either be sworn to before a notary or made under penalty of perjury. In this rule, “declarant” means the party filing the Statement.
Rule 145 – Payment of Costs Not Required, Tex. R. Civ. P. 145
3. Rule 106 – Method of Service [Effective until December 31, 2020]
4. “The officer or authorized person to whom process is delivered shall endorse thereon the day and hour on which he received it, and shall execute and return the same without delay.” Rule 105 – Duty of Officer or Person Receiving, Tex. R. Civ. P. 105
5. The return, together with any documents to which it is attached, must include the following information:(1) the cause number and case name;(2) the court in which the case is filed;(3) a description of what was served;(4) the date and time the process was received for service;(5) the person or entity served;(6) the address served;(7) the date of service or attempted service;(8) the manner of delivery of service or attempted service;(9) the name of the person who served or attempted to serve the process;(10) if the person named in (9) is a process server certified under the order of the Supreme Court, his or her identification number and the expiration date of his or her certification; and(11) any other information required by the rule of law.
Rule 107 – Return of Service, Tex. R. Civ. P. 107
6. “Whenever citation by publication is authorized, the court may, on motion, prescribe a different method of substituted service, if the court finds, and so recites in its order, that the method so prescribed would be as likely as a publication to give defendant actual notice” Rule 109a – Other Substituted Service, Tex. R. Civ. P. 109a
7. Tex. R. Civ. P. 190 As amended through August 21, 2020 Rule 190 – Discovery Limitations [Effective January 1, 2021]
8. 190.2 Discovery Control Plan – Expedited Actions and Divorces Involving $250,000 or Less (Level 1)(a)Application. This subdivision applies to:
(1) any suit that is governed by the expedited actions process in Rule 169; and(2) unless the parties agree that rule 190.3 should apply or the court orders a discovery control plan under Rule 190.4, any suit for divorce not involving children in which a party pleads that the value of the marital estate is more than zero but not more than $ 250,000.
(b)Limitations. Discovery is subject to the limitations provided elsewhere in these rules and to the following additional limitations:
(1)Discovery period. All discovery must be conducted during the discovery period, which begins when initial disclosures are due and continues until 180 days after the initial disclosures are due.
(2)Total time for oral depositions. Each party may have no more than 20 hours in total to examine and cross-examine all witnesses in oral depositions. The court may modify the deposition hours so that no party is given an unfair advantage.
(3)Interrogatories. Any party may serve on any other party no more than 15 written interrogatories, excluding interrogatories asking a party only to identify or authenticate specific documents. Each discrete subpart of an interrogatory is considered a separate interrogatory. (4)Requests for Production. Any party may serve on any other party no more than 15 written requests for production. Each discrete subpart of a request for production is considered a separate request for production.
(5)Requests for Admissions. Any party may serve on any other party no more than 15 written requests for admissions. Each discrete subpart of a request for admission is considered a separate request for admission.
(c)Reopening Discovery. If a suit is removed from the expedited actions process in Rule 169 or, in a divorce, the filing of a pleading renders this subdivision no longer applicable, the discovery period reopens, and discovery must be completed within the limitations provided in Rules 190.3 or 190.4, whichever is applicable. Any person previously deposed may be deposed. On the motion of any party, the court should continue the trial date if necessary to permit completion of discovery.
Rule 190 – Discovery Limitations [Effective January 1, 2021], Tex. R. Civ. P. 190
9. Rule 166a – Summary Judgment, Tex. R. Civ. P. 166a