Back to Main Page / Back to List of Rules
Rule 75. Filed Pleadings; Withdrawal
All filed pleadings shall remain at all times in the clerk's office or in the court or in custody of the clerk, except that the court may by order entered on the minutes allow a filed pleading to be withdrawn for a limited time whenever necessary, on leaving a certified copy on file. The party withdrawing such pleading shall pay the costs of such order and certified copy.
Source: The last sentence of Acts 1939, 46th Leg., p. 203, Sec. 1, appearing in Vernon's Statutes as Art. 2002a, unchanged. The balance of such article is incorporated in Rule 72.
Caveat: The statute took effect subsequent to the effective date of the Rule Making Act.
Oct. 29, 1940, eff. Sept. 1, 1941.
(No. 36) Question: In view of Rules 72 and 75 are attorneys entitled to withdraw the original drafts of judgments and orders which are on file but which have therefore been placed in the minutes of the court?
Answer: We are of the opinion that since Rules 72 and 75 specify the particular papers to which they apply, and since papers of the type that you mention are not included or fairly implied in those so specified, there is under those rules no prohibition of the withdrawal. However, we know of no authority whereunder an attorney is entitled to withdraw papers of the type now under consideration. As the clerk is the custodian of file papers, it would seem that, except by sufferance of the clerk, nothing in his possession can rightfully be withdrawn by an attorney. It may become very important for the draft of a judgment or order to remain in his custody to the end that the clerk may complete his fee bill (Article 3930), that his accounts may be fully audited, or that the entry may be corrected if not in accordance with the draft. The trial judge can always expressly regulate a matter of this sort by local rules promulgated under Rule 817.
5 Tex. B.J. 171 (1942) reprinted in 8 Tex. B.J. 16 (1945).