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Rule 63. Amendments (1961)

TEXT

Parties may amend their pleadings, file suggestions of death and make representa­tive parties, and file such other pleas as they may desire by filing such pleas with the clerk at such time as not to operate as a surprise to the opposite party; provided, that any amendment offered for filing within seven days of the date of trial or thereafter, or after such time as may be ordered by the judge under Rule 166, shall be filed only after leave of the judge is obtained, which leave shall be granted by the judge unless there is a showing that such amendment will operate as a surprise to the opposite party.

Amended by order of July 26, 1960, eff. Jan. 1, 1961: Language "or after such time as may be ordered by the judge under Rule 166" added.

ADVISORY OPINIONS

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).