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Rule 87. Hearing on Plea
Upon the filing of such controverting plea the judge or justice of the peace shall note on same a time for a hearing on the plea of privilege. Such hearing, unless the parties agree upon the date, shall not be had until a copy of such controverting plea, including a copy of such notation thereon, shall have been mailed by registered mail to the defendant or his attorney at the postoffice address stated in such plea of privilege at least ten days before the date set for hearing, after which the court shall promptly hear such plea of privilege and enter judgment thereon.
Source: Art. 2008 (part).
Change: Service of notice of the controverting affidavit by registered mail is substitute for service by officer. Provision for appeals from orders sustaining or overruling pleas of privilege is made in Art. 2008, which is deemed jurisdictional insofar as it grants the right to appeal, and hence not repealed. This part of 2008 is carried for context following Rule 384. See also Rule 385, which prescribes the procedure for appeals, when allowed, from interlocutory orders.
Oct. 29, 1940, eff. Sept. 1, 1941.
Sept. 20, 1941, eff. Dec. 31, 1941
June 16, 1943, eff. Dec. 31, 1943
Aug. 18, 1947, eff. Dec. 31, 1947
June 15, 1983, eff. Sept. 1, 1983
July 15, 1987, eff. Jan. 1, 1988
April 24, 1990, eff. Sept. 1, 1990
(No. 43) Question: Are Articles 4662 and 2008 repealed? If so does an appeal lie in temporary injunctions and pleas of privilege?
Answer: It is the opinion of the subcommittee that those portions of Articles 4662 and 2008 which authorize appeals in the specified situations were not repealed by the adoption of the new rules. Accordingly, an appeal will lie from an order granting or refusing a temporary injunction or from an order sustaining or overruling a plea of privilege.
This conclusion is based upon the fact that said portions of the articles are jurisdictional and not procedural. It will be noted that Rule 816 expressly provides that the new rules shall not be construed so as to extend or limit the jurisdiction of any courts. Furthermore the enumeration of repealed statutes indicates that the aforesaid articles were not repealed in their entirety; and in the note following Rule 384 it will be seen that those portions of Articles 2008 and 4662 which authorize appeals are carried for context so as to indicate that said portions of the articles were not repealed; and in the note following Rule 87 it is expressly stipulated that the portion of Article 2008 authorizing appeals is not repealed.
5 Tex. B.J. 287 (1942) reprinted in 8 Tex. B.J. 20 (1945).
(No. 48) Question: Is a plea of privilege wherein the defendant fails to "state ... the post office address of himself or his attorney" as required by Rules 86 and527, sufficient to require a controverting affidavit, in view of the provisions of Rule 87 providing that "such … hearing shall not be had until a copy of such controverting plea ... shall have been mailed by registered mail to the defendant o r his attorney at the post office address stated in such plea of privilege at least 10 days before the date set for the hearing"?
Answer: In our opinion the question should be answered in the affirmative, provided the plea of privilege states the county of the defendant's residence and has all the other requisites prescribed by Rule 86 and merely fails to state the post office address of the defendant or his attorney.
The provision of the rule which requires the plea of privilege to state the post office address of the defendant or his attorney does not relate to the sufficiency of the plea as to venue, but was merely inserted in order to facilitate the delivery to the defendant of the controverting affidavit. Therefore the failure to give such post office address might tend to excuse the plaintiff's failure to mail his controverting affidavit to the defendant, but it would not constitute such a fatal defect in the plea of privilege as to eliminate the necessity of the plaintiff's filing a controverting affidavit.
5 Tex. B.J. 287 (1942) reprinted in 8 Tex. B.J. 20 (1945).
(No. 58) Question: What is the effect of the repeal of Article 2013 on Rule 87 pertaining to a hearing on a plea of privilege? Is it necessary to have the hearing upon the date noted by the judge on the controverting plea in the absence of an agreement to the contrary? After the judge notes the date for the hearing, can it be reset without a formal order if the parties agree upon another date?
Answer: It is the opinion of the subcommittee that the repeal of Article 2013 has the effect of doing away with the previous rule that a plea of privilege is waived if not heard at the term of court at which it is filed. The decisions based upon Article 2013 are no longer applicable.
Under the new rules, if there is no agreement to the contrary, a plea of privilege should be determined before the trial of the case upon its merits (Rule 175). Furthermore, under Rule 87 the court should "promptly" hear the plea; but this general term is directory and does not affect the validity of a delayed hearing.
The hearing on the plea can be had (1) upon the date noted by the judge on the controverting plea, or (2) upon any subsequent date to which the judge may postpone the hearing, or (3) upon any date agreed to by all parties subject to the approval of the judge. In our opinion a separate order approving a postponement is not absolutely essential to the validity of a postponed hearing, but it is certainly the better practice to have any postponement or agreement of the parties shown of record either in a separate order or in the order disposing of the plea.
5 Tex. B.J. 322 (1942) reprinted in 8 Tex. B.J. 23 (1945).
(No. 60) Question: At term time the court noted on the controverting plea a date for hearing on the plea of privilege which would fall in vacation, although the business of the court would have permitted a hearing in term time. On the date fixed for the hearing the defendant did not appear. There was no agreement between the parties and the court made no order with respect to the matter. (1) Did the plaintiff waive his right to contest the plea of privilege by not securing the disposition of the issue at term time? (2) Did the court lose jurisdiction except to transfer the case to the proper court as was held under Art. 2013 (Norris v. Gulf Prod. Co., 149 S.W.2d 681 (Tex. Civ. App.-Galveston 1941))? (3) What action should the district court take in the case at the next term?
Answer: (1) and (2). The plaintiff did not waive his right to contest the plea of privilege. Art. 2013 was repealed at the time of the adoption of the new rules (Franki's Vernon's Texas Rules of Civil Procedure, page 629), and the decisions based on that article are no longer applicable. While Rule 87 provides that the court should "promptly" hear the plea of privilege the requirement is directory and does not affect the validity of the delayed hearing. The parties not having agreed to a hearing in vacation on the date fixed by the court (Art. 1915), it necessarily was continued to the next term. (3) At the next term, the case will be pending business. The plea of privilege should then be disposed of before the trial upon the merits (Rule 175).
5 Tex. B.J. 322 (1942) reprinted in 8 Tex. B.J. 24 (1945).
(No. 50) Question: Does the plaintiff show good cause in not filing his controverting affidavit within the ten days period (Rules 86 and 87) by proving that defendant failed to furnish him with a copy of the plea of privilege (Rules 72 and 73)? The question is stated in another form: After filing suit can the plaintiff disregard it until he is furnished with a copy of the plea of privilege?
Answer: Rule 72 providing for delivery or mailing to the adverse party or, his attorney of record of any pleading, plea, or motion "which is not by law or by these rules required to be served upon the adverse party" is a wholesome rule and ought to be, and we think will be, readily complied with by the attorneys because of its mutual advantage to them. Nevertheless, the Committee thinks that the Rule is directory and failure to deliver to the plaintiff a copy of the plea of privilege does not dispense with the necessity of the plaintiff's filing a controverting plea; but it may constitute grounds for an extension of the time within which plaintiff should file the controverting plea. Although attorneys have a duty to keep in touch with the developments in their cases, the extent to which they should inspect the records is naturally affected to some extent by Rule 72 requiring the delivery to them by their adversaries of copies of all pleadings, pleas or motions filed in the case.
Under Rule 5, which permits the enlargement of the time within which a specified act is required or allowed to be done, and the liberal construction required by Rule 1 to be given to all the rules in order to adjudicate "the rights of litigants under established principles of substantive law," a wide discretion is vested in the courts in dealing with questions of the character raised in your inquiry. We are of opinion that the courts have the power, upon consideration of all the facts and circumstances, and in the interest of justice, to permit a controverting affidavit to be filed after the expiration of ten days from appearance day upon compliance by the plaintiff with the provisions of Rule 5. When requests for enlargement are applied for under this Rule each case, must necessarily be determined by the court upon its own facts in accordance with the right of the case.
Ordinarily, where the plaintiff and his attorney have no notice or knowledge of the fact that a plea of privilege has been filed, and the defendant has failed to deliver a copy thereof as required by Rule 72, we would be inclined to feel that this would constitute good cause under Rule 5 for granting of an extension of time for the filing of a controverting plea. This would not render nugatory and void that part of Rule 86 quoted in correspondent's letter, as the filing of a controverting plea would still be a prerequisite to the overruling of a proper plea of privilege. It would merely have a bearing upon the time within which the controverting plea could be filed.
5 Tex. B.J. 426 (1942) reprinted in 8 Tex. B.J. 24 (1945).
(No. 73) Question: Where the time within which a defendant must answer falls in vacation, and the defendant accordingly files a plea of privilege in vacation, does Rule 87 give the plaintiff ten days after appearance day within which to file a controverting plea, or does the plaintiff merely have ten days after the day on which the defendant was required to plea?
Answer: It is the opinion of the subcommittee that under the express terms of Rule 87 the plaintiff has ten days after "appearance day" within which he may file a controverting plea. Appearance day is the first day of' the next term when the day upon which the citation directs the defendant to answer falls in vacation (Rule 237).
Under the statute, before the adoption of the Rules, it was held that even though the defendant filed his plea of privilege before appearance day, the plaintiff still had the stipulated time after appearance day within which to file a controverting plea, and the same is true under the rules.
We feel that in Rule 87 the statutory provision giving the plaintiff a stipulated period after appearance day within which he can file a controverting plea was intentionally retained.
If the citation requires the defendant to answer upon a day that falls in term time, then that day is appearance day (Rule 237), and Rule 87 allows ten days thereafter for the filing of a controverting plea. If, on the other hand, the citation requires the defendant to answer upon a day in vacation, then appearance day is the first day of the next term, and the plaintiff accordingly has ten days from the first day of the term within which to file a controverting plea.
5 Tex. B.J. 465 (1942) reprinted in 8 Tex. B.J. 29 (1945).
(No. 98) Question: In regard to Rule 87 concerning the notice to be given after the filing of a controverting plea: (1) Did the rule appeal the former statute, Article 2008; (2) Does the rule require service of notice upon each defendant in the case; (3) Is notice required only as to the defendant filing the plea of privilege?
Answer: In our opinion the first question should be answered in the affirmative, that is that Article 2008 has been repealed except for the portion of the article providing that "Either party may appeal from the judgment sustaining or overruling the plea of privilege." Said quoted part of the statute was considered jurisdictional and it was not repealed when the new rules were enacted, and said unrepealed portion is set out for context only following Rule 384. The remaining portion of Article 2008 was repealed and supplanted by Rule 87, and also partly by Rule 385. See list of repealed statutes enumerated in the Supreme Court order and published at the close of the rules in the Bar Journal.
In response to the second and third questions, it is the opinion of the sub-committee under Rule 87 that formal notice by mailing by registered mail of a copy of the controverting plea together with the judge's notation thereon is only required to be given to the defendant or defendants filing the plea of privilege. This conclusion is reached because the provisions of the former statute which required service "on each defendant" were changed by the rule so as to require the mailing of the notice to "the defendant ... at the post office address stated in such plea of privilege."
Although we feel that the formal notice required in the rule need only be given to the defendant filing the plea of privilege, nevertheless it is obvious that the other defendants in the case can be affected by the disposition of the plea of privilege, and therefore we feel that they should be advised of the date upon which the hearing will be had so that they may be present if they so desire at the time of the hearing. This is not because of any express provision in the rule, but merely because every party to a suit should be advised of the time that the court is going to hear a motion or take up any other matter in the case that might affect his interests.
While the subject is not directly within the questions, we feel that we should call attention to the fact that by amendment effective December 31, next, the method of service has been extended to include a mere delivery to the defendant or his attorney of the controverting plea with the notation thereon of date of hearing. In other words, service may be had by manual delivery of the controverting plea as well as by registered mail.
6 Tex. B.J. 276 (1943) reprinted in 8 Tex. B.J. 35 (1945).
(No. 117) Question: Does the repeal of Article 2013 without carrying this article forward in the new rules dispense with the requirement that dilatory pleas must be determined during the term at which they are filed if the business of the court will permit; and does the plaintiff waive his right to contest a plea of privilege if he fails to have the court pass upon the plea at the term at which it is filed or have it continued without prejudice?
Answer: An opinion heretofore given by the subcommittee relates to this same matter. See 5 Tex. B.J. 53. Our views as expressed in that opinion also apply to pleas of privilege. There is now no rule or statute requiring the trial court to pass upon a plea of privilege during the term at which it is filed, and therefore it is our opinion that the decisions are no longer applicable which held that a plaintiff waives his right to have the court pass upon the plea of privilege if he does not have it heard during the first term of court or have it continued without prejudice.
We call attention, however, to the fact that Rule 87 provides that when the controverting affidavit is filed the trial judge should note thereon the date set for the hearing of the plea of privilege, and if the hearing is not held upon the specified date it is certainly better practice to have an order entered showing the reason for the postponement. Furthermore, Rule 87 enjoins upon the court the duty to “promptly hear” the plea of privilege, and we are not undertaking to express an opinion as to the effect of an unreasonable delay. We merely voice the opinion that the expiration of the term as an absolute limitation upon the time for holding the hearing no longer exists.
7 Tex. B.J. 45 (1944) reprinted in 8 Tex. B.J. 43 (1945).