13.1 Authority and Applicability.
(a) Authority. This rule is promulgated under sections 74.161-74.164 of the Texas Government Code and chapter 90 of the Texas Civil Practices and Remedies Code.
(b) Applicability. This rule applies to:
(1) civil actions that involve one or more common questions of fact and that were filed in a constitutional county court, county court at law, probate court, or district court on or after September 1, 2003;
(2) civil actions filed before September 1, 2003, that involve claims for asbestos- or silica-related injuries, to the extent permitted by chapter 90 of the Texas Civil Practice and remedies Code.
(c) Other Cases. Cases to which this rule does not apply are governed by Rule 11 of these rules.
Comment – 2005
Subsections (a) and (b) are amended and subsection (c) is added to provide procedures for cases covered by chapter 90 of the Texas Civil Practices and Remedies Code, enacted effective September 1, 2005.
13.2 Definitions. As used in this rule:
(a) MDL Panel means the judicial panel on multidistrict litigation designated pursuant to section 74.161 of the Texas Government Code, including any temporary members designated by the Chief Justice of the Supreme Court of Texas in his or her discretion when regular members are unable to sit for any reason.
(b) Chair means the chair of the MDL Panel, who is designated by the Chief Justice of the Supreme Court of Texas.
(c) MDL Panel Clerk means the Clerk of the Supreme Court of Texas.
(d) Trial court means the court in which a case is filed.
(e) Pretrial court means the district court to which related cases are transferred for consolidated or coordinated pretrial proceedings under this rule.
(f) Related means that cases involve one or more common questions of fact.
(g) Tag-along case means a case related to cases in an MDL transfer order but not itself the subject of an initial MDL motion or order.
13.3 Procedure for Requesting Transfer.
(a) Motion for Transfer; Who May File; Contents. A party in a case may move for transfer of the case and related cases to a pretrial court. The motion must be in writing and must:
(1) state the common question or questions of fact involved in the cases;
(2) contain a clear and concise explanation of the reasons that transfer would be for the convenience of the parties and witnesses and would promote the just and efficient conduct of the cases;
(3) state whether all parties in those cases for which transfer is sought agree to the motion; and
(4) contain an appendix that lists:
(A) the cause number, style, and trial court of the related cases for which transfer is sought; and
(B) all parties in those cases and the names, addresses, telephone numbers, fax numbers, and email addresses of all counsel.
(b) Request for Transfer by Judges. A trial court or a presiding judge of an administrative judicial region may request a transfer of related cases to a pretrial court. The request must be in writing and must list the cases to be transferred.
(c) Transfer on the MDL Panel’s Own Initiative. The MDL Panel may, on its own initiative, issue an order to show cause why related cases should not be transferred to a pretrial court.
(d) Response; Reply; Who May File; When to File. Any party in a related case may file:
(1) a response to a motion or request for transfer within twenty days after service of such motion or request;
(2) a response to an order to show cause issued under subparagraph (c) within the time provided in the order; and
(3) a reply to a response within ten days after service of such response.
(e) Form of Motion, Response, Reply, and Other Documents. A motion for transfer, response, reply, or other document addressed to the MDL Panel must conform to the requirements of Rule 9.4 of the Texas Rules of Appellate Procedure. Without leave of the MDL Panel, the following must not exceed 20 pages: the portions of a motion to transfer required by subparagraphs (a)(1)-(2); a response; and a reply. The MDL Panel may request additional briefing from any party.
(f) Filing. A motion, request, response, reply, or other document addressed to the MDL Panel must be filed with the MDL Panel Clerk. The MDL Panel Clerk may require that all documents also be transmitted to the clerk electronically. In addition, a party must send a copy of the motion, response, reply, or other document to each member of the MDL Panel.
(g) Filing Fees. The MDL Panel Clerk may set reasonable fees approved by the Supreme Court of Texas for filing and other services provided by the clerk.
(h) Service. A party must serve a motion, response, reply, or other document on all parties in related cases in which transfer is sought. The MDL Panel Clerk may designate a party or parties to serve a request for transfer on all other parties. Service is governed by Rule 9.5 of the Texas Rules of Appellate Procedure.
(i) Notice to Trial Court. A party must file in the trial court a notice — in the form prescribed by the MDL Panel — that a motion for transfer has been filed. The MDL Panel Clerk must cause such notice to be filed when a request for transfer by a judge has been filed.
(j) Evidence. The MDL Panel will accept as true facts stated in a motion, response, or reply unless another party contradicts them. A party may file evidence with the MDL Panel Clerk only with leave of the MDL Panel. The MDL Panel may order parties to submit evidence by affidavit or deposition and to file documents, discovery, or stipulations from related cases.
(k) Hearing. The MDL Panel may decide any matter on written submission or after an oral hearing before one or more of its members at a time and place of its choosing. Notice of the date of submission or the time and place of oral hearing must be given to all parties in all related cases.
(l) Decision. The MDL Panel may order transfer if three members concur in a written order finding that related cases involve one or more common questions of fact, and that transfer to a specified district court will be for the convenience of the parties and witnesses and will promote the just and efficient conduct of the related cases.
(m) Orders Signed by Chair or Clerk; Members Identified. Every order of the MDL Panel must be signed by either the chair or by the MDL Panel Clerk, and must identify the members of the MDL Panel who concurred in the ruling.
(n) Notice of Actions by MDL Panel. The MDL Panel Clerk must give notice to all parties in all related cases of all actions of the MDL Panel, including orders to show cause, settings of submissions and oral arguments, and decisions. The MDL Panel Clerk may direct a party or parties to give such notice. The clerk may determine the manner in which notice is to be given, including that notice should be given only by email or fax.
(o) Retransfer. On its own initiative, on a party’s motion, or at the request of the pretrial court, the MDL Panel may order cases transferred from one pretrial court to another pretrial court when the pretrial judge has died, resigned, been replaced at an election, requested retransfer, recused, or been disqualified, or in other circumstances when retransfer will promote the just and efficient conduct of the cases.
13.4 Effect on the Trial Court of the Filing of a Motion for Transfer.
(a) No Automatic Stay. The filing of a motion under this rule does not limit the jurisdiction of the trial court or suspend proceedings or orders in that court.
(b) Stay of Proceedings. The trial court or the MDL Panel may stay all or part of any trial court proceedings until a ruling by the MDL Panel.
13.5 Transfer to a Pretrial Court.
(a) Transfer Effective upon Notice. A case is deemed transferred from the trial court to the pretrial court when a notice of transfer is filed with the trial court and the pretrial court. The notice must:
(1) list all parties who have appeared and remain in the case, and the names, addresses, phone numbers, and bar numbers of their attorneys or, if a party is pro se, the party’s name, address, and phone number;
(2) list those parties who have not yet appeared in the case; and
(3) attach a copy of the MDL transfer order.
(b) No Further Action in Trial Court. After notice of transfer is filed in the trial court, the trial court must take no further action in the case except for good cause stated in the order in which such action is taken and after conferring with the pretrial court. But service of any process already issued by the trial court may be completed and the return filed in the pretrial court.
(c) Transfer of Files; Master File and New Files in the Pretrial Court. If the trial court and pretrial court are in the same county, the trial court must transfer the case file to the pretrial court in accordance with local rules governing the courts of that county. If the trial court and pretrial court are not in the same county, the trial court clerk must transmit the case file to the pretrial court clerk. The pretrial court clerk, after consultation with the judge of the pretrial court, must establish a master file and open new files for each case transferred using the information provided in the notice of transfer. The pretrial court may direct the manner in which pretrial documents are filed, including electronic filing.
(d) Filing Fees and Costs. Unless the MDL Panel assesses costs otherwise, the party moving for transfer must pay the cost of refiling the transferred cases in the pretrial court, including filing fees and other reasonable costs.
(e) Transfer of Tag-along Cases. A tag-along case is deemed transferred to the pretrial court when a notice of transfer — in the form described in Rule 13.5(a) — is filed in both the trial court and the pretrial court. Within 30 days after service of the notice, a party to the case or to any of the related cases already transferred to the pretrial court may move the pretrial court to remand the case to the trial court on the ground that it is not a tag-along case. If the motion to remand is granted, the case must be returned to the trial court, and costs including attorney fees may be assessed by the pretrial court in its remand order. The order of the pretrial court may be appealed to the MDL Panel by a motion for rehearing filed with the MDL Panel Clerk.
13.6 Proceedings in Pretrial Court.
(a) Judges Who May Preside. The MDL Panel may assign as judge of the pretrial court any active district judge, or any former or retired district or appellate judge who is approved by the Chief Justice of the Supreme Court of Texas. An assignment under this rule is not subject to objection under chapter 74 of the Government Code. The judge assigned as judge of the pretrial court has exclusive jurisdiction over each related case transferred pursuant to this rule unless a case is retransferred by the MDL Panel or is finally resolved or remanded to the trial court for trial.
(b) Authority of Pretrial Court. The pretrial court has the authority to decide, in place of the trial court, all pretrial matters in all related cases transferred to the court. Those matters include, for example, jurisdiction, joinder, venue, discovery, trial preparation (such as motions to strike expert witnesses, preadmission of exhibits, and motions in limine), mediation, and disposition by means other than conventional trial on the merits (such as default judgment, summary judgment, and settlement). The pretrial court may set aside or modify any pretrial ruling made by the trial court before transfer over which the trial court’s plenary power would not have expired had the case not been transferred.
(c) Case Management. The pretrial court should apply sound judicial management methods early, continuously, and actively, based on its knowledge of each individual case and the entire litigation, in order to set fair and firm time limits tailored to ensure the expeditious resolution of each case and the just and efficient conduct of the litigation as a whole. After a case is transferred, the pretrial court should, at the earliest practical date, conduct a hearing and enter a case management order. The pretrial court should consider at the hearing, and its order should address, all matters pertinent to the conduct of the litigation, including:
(1) settling the pleadings;
(2) determining whether severance, consolidation, or coordination with other actions is desirable and whether identification of separable triable portions of the case is desirable;
(3) scheduling preliminary motions;
(4) scheduling discovery proceedings and setting appropriate limitations on discovery, including the establishment and timing of discovery procedures;
(5) issuing protective orders;
(6) scheduling alternative dispute resolution conferences;
(7) appointing organizing or liaison counsel;
(8) scheduling dispositive motions;
(9) providing for an exchange of documents, including adopting a uniform numbering system for documents, establishing a document depository, and determining whether electronic service of discovery materials and pleadings is warranted;
(10) determining if the use of technology, videoconferencing, or teleconferencing is appropriate;
(11) considering such other matters the court or the parties deem appropriate for the just and efficient resolution of the cases; and
(12) scheduling further conferences as necessary.
(d) Trial Settings. The pretrial court, in conjunction with the trial court, may set a transferred case for trial at such a time and on such a date as will promote the convenience of the parties and witnesses and the just and efficient disposition of all related proceedings. The pretrial court must confer, or order the parties to confer, with the trial court regarding potential trial settings or other matters regarding remand. The trial court must cooperate reasonably with the pretrial court, and the pretrial court must defer appropriately to the trial court’s docket. The trial court must not continue or postpone a trial setting without the concurrence of the pretrial court.
13.7 Remand to Trial Court.
(a) No Remand if Final Disposition by Pretrial Court. A case in which the pretrial court has rendered a final and appealable judgment will not be remanded to the trial court.
(b) Remand. The pretrial court may order remand of one or more cases, or separable triable portions of cases, when pretrial proceedings have been completed to such a degree that the purposes of the transfer have been fulfilled or no longer apply.
(c) Transfer of Files. When a case is remanded to the trial court, the clerk of the pretrial court will send the case file to the trial court without retaining a copy unless otherwise ordered. The parties may file in the remanded case copies of any pleadings or orders from the pretrial court’s master file. The clerk of the trial court will reopen the trial court file under the cause number of the trial court, without a new filing fee.
13.8 Pretrial Court Orders Binding in the Trial Court After Remand.
(a) Generally. The trial court should recognize that to alter a pretrial court order without a compelling justification would frustrate the purpose of consolidated and coordinated pretrial proceedings. The pretrial court should recognize that its rulings should not unwisely restrict a trial court from responding to circumstances that arise following remand.
(b) Concurrence of the Pretrial Court Required to Change Its Orders. Without the written concurrence of the pretrial court, the trial court cannot, over objection, vacate, set aside, or modify pretrial court orders, including orders related to summary judgment, jurisdiction, venue, joinder, special exceptions, discovery, sanctions related to pretrial proceedings, privileges, the admissibility of expert testimony, and scheduling.
(c) Exceptions. The trial court need not obtain the written concurrence of the pretrial court to vacate, set aside, or modify pretrial court orders regarding the admissibility of evidence at trial (other than expert evidence) when necessary because of changed circumstances, to correct an error of law, or to prevent manifest injustice. But the trial court must support its action with specific findings and conclusions in a written order or stated on the record.
(d) Unavailability of Pretrial Court. If the pretrial court is unavailable to rule, for whatever reason, the concurrence of the MDL Panel Chair must be obtained.
13.9 Review.
(a) MDL Panel Decision. An order of the MDL Panel, including one granting or denying a motion for transfer, may be reviewed only by the Supreme Court in an original proceeding.
(b) Orders by the Trial Court and Pretrial Court. An order or judgment of the trial court or pretrial court may be reviewed by the appellate court that regularly reviews orders of the court in which the case is pending at the time review is sought, irrespective of whether that court issued the order or judgment to be reviewed. A case involving such review may not be transferred for purposes of docket equalization among appellate courts.
(c) Review Expedited. An appellate court must expedite review of an order or judgment in a case pending in a pretrial court.
Comment – 2005
Subsection (b) is amended and subsection (c) is added to clarify the handling of appeals by appellate courts. Subsection (b) forbids transfer for docket equalization but not for other purposes that might arise. Subsection (c) does not require that an appeal from an order or judgment of a case pending in a pretrial court be treated as an accelerated appeal under the Texas Rules of Appellate Procedure if it would otherwise not be accelerated. Rather, subsection (c) requires expedited consideration by the appellate court regardless of whether review is sought by an appeal that is or is not accelerated, or by mandamus.
13.10 MDL Panel Rules. The MDL Panel will operate at the direction of its Chair in accordance with rules prescribed by the panel and approved by the Supreme Court of Texas.
13.11 Civil Actions Filed Before September 1, 2003, Involving Claims for Asbestos- and Silica-Related Injuries.
(a) Applicability. To the extent permitted by chapter 90 of the Texas Civil Practice and Remedies Code, Rule 13.11 applies to civil actions filed before September 1, 2003, that involve claims for asbestos- or silica-related injuries.
(b) Statutory Reference; Definitions. Statutory references in Rule 13.11 are to chapter 90 of the Texas Civil Practice and Remedies Code. “Claimant” has the meaning assigned in section 90.001(6). “Report” has the meaning assigned in section 90.001(24).
(c) Notice to Transfer Under Section 90.011(b). A notice of transfer under section 90.010(b) must be filed in the trial court and the pretrial court and must:
(1) be titled “Notice of Transfer Under Section 90.010(b)”;
(2) list all parties who have appeared and remain in the case, and the names, addresses, phone numbers, and bar numbers of their attorneys or, if a party is pro se, the party’s name, address and phone number;
(3) state the name of each claimant transferred;
(4) attach to the notice filed in the pretrial court a copy of the claimant’s live petition; and
(5) if filed by a defendant, contain a certificate stating that the filing party conferred, or at least made a reasonable attempt to confer, with opposing counsel about whether the notice of transfer is appropriate as to each individual claimant transferred.
(d) Effect on Pending Motion for Severance. If, when a notice of transfer is filed in the trial court, a motion for severance has been filed but the trial court has not ruled, the trial court must rule on the motion within 14 days of the date the notice of transfer is filed, or the motion is deemed granted by operation of law.
(e) When Transfer Effective. A case is deemed transferred from the trial court to the pretrial court when a notice of transfer is filed with the trial court unless a motion for severance is pending. If a motion for severance is pending when a notice of transfer is filed with the trial court, a case is deemed transferred when the trial court rules on the motion or the motion is deemed granted by operation of law.
(f) Further Action in Trial Court Limited. After a notice of transfer is filed, the trial court must take no further action in the case except:
(1) to rule on a motion for severance pending when the notice of transfer was filed, or
(2) for good cause stated in the order in which such action is taken and after conferring with the pretrial court.
But service of any process already issued by the trial court may be completed and the return filed in the pretrial court.
(g) Severed Case File. If a claim is severed from a case that includes one or more claimants covered by section 90.010(a), the file for the severed claims in the trial court should be numerically linked to the original case file and should contain only the live petition containing the severed claim. The severed case file is deemed to include all papers in the original case file. The pretrial court may require a different procedure in the interests of justice and efficiency.
(h) Transfer of Files. The pretrial court may order the trial court clerk to transfer a case file to the pretrial court. A case file must not be transferred to the pretrial court except as ordered by that court.
(i) Filing Fees and Costs. A defendant who files a notice of transfer must pay the cost of filing the case in the pretrial court, including filing fees and other reasonable costs. If the pretrial court remands the case to the trial court, the pretrial court may order that costs be allocated between the parties in a way that encourages just and efficient compliance with this rule, and may award appropriate and reasonable attorney fees.
Comments – 2005
- Rule 13.11 is added to provide procedures for cases covered by chapter 90 of the Texas Civil Practice and Remedies Code, enacted effective September 1, 2005.
- The rule does not require a statement in the notice of transfer that no report has been served under chapter 90, or that a report has been served but does not comply with the provisions of that statute. The omission of such a requirement in the notice of transfer is not intended to limit the pretrial court’s authority under Rule 166 of the Texas Rules of Civil Procedure to employ appropriate procedures to ascertain a party’s position on the issue.
- It is anticipated that the party filing a notice of transfer will usually be a defendant, and that the party filing a motion for severance will usually be a claimant. Ordinarily, a party filing the notice of transfer is responsible for filing fees and costs in the pretrial court, although there may be exceptions. See Rule 13.5(d). Also, a party who successfully moves to sever a claim into a separate proceeding in the trial court is customarily responsible for filing fees and costs, although severance is “on such terms as are just”, Tex. R. Civ. P. 41, and again, there may be exceptions. The intent of this rule is that severance and transfer procedures minimize costs and burdens on parties and the courts.
- A pretrial court has discretion under Rule 13.11(g)-(i) to order the maintenance and transfer of physical case files and to allocate costs and fees so as to minimize costs and burdens on parties and the courts.