Practice Alert–Watch Those Local Rules

Patrick J. Dyer

           Civil trial lawyers in Texas know that you always check to see if a court has local rules.  If you do not, you may find out that your request for relief has been denied, not because it lacked merit, but because you failed to comply with a local rule.  All county and state district courts apply the Texas Rules of Civil Procedure of course, but there are other rules that may also apply, and they may well differ.  For example, many Texas counties have local rules that apply to all civil district courts.  These rules may deal with the manner in which motions are decided and cases are assigned, transferred, or set for trial.  But there frequently is also a third layer, colloquially called the “local local” rules, developed by individual courts to manage their own dockets. A trial lawyer should always become familiar with the various levels of rules that may apply in any particular court, but the trial lawyer should also be aware that the interplay of the Texas rules, the local rules and the “local local” rules may sometimes result in conflict.

            A recent case demonstrates the point.  In Approximately $1,589.00 v. State of Texas, No. 14-06-0006 CV, 2007 Tex.App. Lexis 5635 (Tex. App.–Houston [14th Dist.] July 19, 2007), the State of Texas sought to forfeit cash as contraband.  The owner of the cash filed a motion to strike deemed admissions and a notice of hearing four days prior to trial.  The trial court refused to hear the motion because the local court rule (a “local local” rule) required motions to be filed at least ten days prior to oral hearing.  Based on the deemed admissions, the court entered judgment forfeiting the money.

            The court of appeals reversed and remanded.  It held that the local rule applied by the trial court impermissibly expanded the three-day period prescribed by Rule 21 of the Texas Rules of Civil Procedure.  Under Rule 21, a motion and notice of hearing must be served not less than three days prior to hearing.  Effectively, the court continued, this means the motion and notice must be filed three days before the hearing.  Although a district court is permitted to make local rules, there are certain limitations.  Rule 3a(2) absolutely prohibits the application of a local rule that alters a time period set forth in the rules.  Thus, the ten-day period required by the “local local”rule of the 133rd District Court improperly expanded the three-day period prescribed by the rules of procedure.  Accordingly, the trial court abused its discretion in refusing to hear the motion.

            Lesson of the story: Always check for local rules and “local local” rules, and be prepared to address any inconsistencies or conflicts.