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Rule 166. Pre-Trial Procedure; Formulating Issues
In any action, the court may in its discretion direct the attorneys for the parties and the parties or their duly authorized agents to appear before it for a conference to consider:
(a) All dilatory pleas and all motions and exceptions relating to a suit pending;
(b) The simplification of the issues;
(c) The necessity or desirability of amendments to the pleadings;
(d) The possibility of obtaining admissions of fact and of documents which will avoid unnecessary proof;
(e) The limitation of the number of expert witnesses;
(f) The advisability of a preliminary reference of issues to a master or auditor for findings to be used as evidence when the trial is to be by jury;
(g) Such other matters as may aid in the disposition of the action. The court shall make an order which recites the action taken at the pre-trial conference, the amendments allowed to the pleadings, and the agreements made by the parties as to any of the matters considered, and which limits the issues for trial to those not disposed of by admissions or agreements of counsel; and such order when entered shall control the subsequent course of the action, unless modified at the trial to prevent manifest injustice. The court in its discretion may establish by rule a pre-trial calendar on which actions may be placed for consideration as above provided al1d may either confine the calendar to jury actions or extend it to all actions.
Source: Federal Rule 16.
Change: Subsection 1 has been added. The court has been given the power to compel the appearance of the parties or their agents as well as the attorneys. Reference to an auditor is also authorized.
Oct. 29, 1940, eff. Sept. 1, 1941.
July 26, 1960, eff. Jan. 1, 1961
April 24, 1990, eff. Sept. 1, 1990
Aug. 29, 2003, eff. Sept. 1, 2003
Question: Was the repeal of Article 2013 at the time of the adoption of the Rules on September 1, 1941, intentional?
Answer: Yes. Article 2013 required that dilatory pleas be disposed of during the term at which they were filed. Rules 84, 166, and 175 require them to be disposed of before the trial on the merits. The tendency is to depart from term time as a limitation upon procedural steps, and the requirement of disposition before the trial on the merits is thought to be a sufficient deterrent of dilatory tactics.
5 Tex. B.J. 53 (1942) reprinted in 8 Tex. B.J. 7 (1945).
Question: "In construing Rule 63 and Rule 166 would an order under Rule 166, on the pre-trial of the case, to the effect that such pre-trial was the beginning of the trial and that no amendment would be permitted thereafter without permission of the court, conflict with the provisions of Rule 63, which provides that amendments may be made without leave of the court prior to seven days before the trial of the case?"
Answer: It is the opinion of the Committee that such an order would be in conflict with Rule 63, and that the pre-trial procedure does not fix the date of the beginning of the trial, and a party would have the right to file amended pleadings up until seven days prior to the actual trial. When Rule 63 is read in connection with Rule 66, permitting trial amendments, it appears clear that it is the spirit of the rules that there should be little, if any, stricture imposed upon the filing of amendments. Rule 166 is limited to preliminary matters and is not intended to fix a date to be taken as the actual beginning of the trial of the case.
11 Tex. B.J. 276 (1948).