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Rule 45. Definition and System

TEXT

Pleadings in the district and county courts shall

(a) Be by petition and answer.

(b) Consist of a statement in plain and concise language of the plaintiff's cause of action or the defendant's grounds of defense. That an allegation be evidentiary or be of legal conclusion shall not be ground for objection when fair notice to the opponent is given by the allegations as a whole.

(c) Contain any other matter which may be required by any law or rule authorizing or regulating any particular action or defense.

(d) Be in writing, signed by the party or his attorney, and be filed with the clerk.

All pleadings shall be so construed as to do substantial justice.

Source: This rule embraces in part Art. 1997, Texas Rules 1 and 32 (for the District and County Courts), and Federal Rule 8 (f).

Change: No change in Art. 1997 except the addition of the final sentence and the elimination, in paragraph two, of the requirement that the allegations be statements of fact.

Oct. 29, 1940, eff. Sept. 1, 1941.

AMENDMENTS

July 15, 1987, eff. Jan. 1, 1988

April 24, 1990, eff. Sept. 1, 1990 & Sept. 4, 1990

ADVISORY OPINIONS

(No. 89) Question: Where legal conclusions are used in a pleading, what do the rules contemplate as the proper treatment of them?

Answer: By Rules 45 and 69 the court omits, the requirement that allegations be of "facts" that had been contained in the parent statutes. In the first of these rules the court adds "that an allegation be … of legal conclusion shall not be ground for objection when fair notice to the opponent is given by the allegations as a whole."

In our opinion, therefore, allegations of conclusions of law should be treated as good pleading unless fair notice is not given by them and should even then be considered as sufficient unless objection on that ground is made to them. See Rules 67, 90 and 274.

6 Tex. B.J. 77 (1943) reprinted in 8 Tex. B.J. 33 (1945).