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Rule 175. Issue of Law and Dilatory Pleas
When a case is called for trial in which there has been no pre-trial hearing as provided by Rule 166, the issues of law arising on the pleadings, all pleas in abatement and other dilatory pleas remaining undisposed of shall be determined; and it shall be no cause for postponement of a trial of the issues of law that a party is not prepared to try the issues of fact.
Source: R. C. S. Art. 2166, with minor textual change.
Oct. 29, 1940, eff. Sept. 1, 1941.
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).
(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 The decisions based upon Article 2013 are no longer applicable.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).