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Rule 42. Class Actions (Dec1941)


(a) Representation. If persons constituting a class are so numerous as to make it impracticable to bring them all before the court, such of them, one or more, as will fairly insure the adequate representation of all may, on behalf of all, sue or be sued, when the character of the right sought to be enforced for or against the class is

(1) joint, or common or secondary in the sense that the owner of a primary right refuses to enforce that right and a member of the class thereby becomes entitled to enforce it;

(2) several, and the object of the action is the adjudication of claims which do or may affect specific property involved in the action; or

(3) several, and there is a common question of law or fact affecting the several rights and a common relief is sought.

(b) Dismissal or compromise. A class action shall not be dismissed nor compromised without the approval of the court. If the right sought to be enforced is one defined in paragraph (1) of subdivision (a) of this rule notice of the proposed dismissal or compromise shall be given to all members of the class in such manner as the court directs. If the right is one defined in paragraphs (2) or (3) of subdivision (a) notice shall be given only if the court requires it.

Amended by order of Sept. 1, 1941, eff. Dec. 31, 1941: Elimination of paragraph (b) from the original rule and change of paragraph (c) to read paragraph (b).

Prior Amendments Future Amendments
Oct. 29, 1940, eff. Sept. 1, 1941 May 9, 1977, eff. Sept. 1, 1977
  Dec. 5, 1983, eff. April 1, 1984
  Oct. 9, 2003, eff. Jan. 1, 2004


(No. 22) Question: Where the owner of a por­tion of a royalty under an oil lease brings suit against the lessee to recover damages because of the breach of implied contract of reasonable development, is it manda­tory that all persons who own portions of the royalty be joined?

Answer: This matter is dealt with by Rule 39 which provides that persons hav­ing a joint interest shall be joined in the suit. This rule is taken from Federal Rule 19, and under the annotations to the Fed­eral rule it has been held a number of times that the phrase, "joint interest," should be construed to mean those who would be necessary in the sense of indis­pensable parties under the previous prac­tice.

If under the previous practice all royalty owners were not necessary parties in such a suit, then it is the opinion of the com­mittee that it would not be necessary to join them because of the adoption of new rules. On the other hand, if joinder of all would have been necessary under the old practice, then it is still necessary under the new rules.

The subcommittee calls attention to pos­sible relaxations suggested by and under the conditions stated in Subdivisions (b) and (c) of Rule 39 and in Rule 42.

The subcommittee feels that the above general construction of the rule is as far as it can properly go in answering the question. In other words, the subcom­mittee feels that it should confine its interpretations to general explanation of the rules, and should not undertake to brief questions arising under the facts of specific cases.

In the above opinion the subcommittee consulted with and was aided by Roy W. McDonald.

5 Tex. B.J. 287 (1942) reprinted in 8 Tex. B.J. 19 (1945).