167. OFFER OF SETTLEMENT; AWARD OF LITIGATION COSTS
167.1 Generally. Certain litigation costs may be awarded against a party who rejects an offer made
substantially in accordance with this rule to settle a claim for monetary damages — including a
counterclaim, crossclaim, or third-party claim — except in:
(a) a class action;
(b) a shareholder’s derivative action;
(c) an actionby or against the State, a unit of state government, or a politicalsubdivisionof the
(d) an action brought under the Family Code;
(e) an action to collect workers’ compensation benefits under title 5, subtitle A of the Labor
(f) an action filed in a justice of the peace court or small claims court.
167.2 Settlement Offer.
(a) Defendant’s declarationa prerequisite; deadline. A settlement offer under this rule may
not be made until a defendant — a party against whom a claim for monetary damages is
made—files a declaration invoking this rule. When a defendant files such a declaration,
an offer or offers may be made under this rule to settle only those claims by and against
that defendant. The declaration must be filed no later than 45 days before the case is set
for conventional trial on the merits.
(b) Requirements of an offer. A settlement offer must:
(1) be in writing;
(2) state that it is made under Rule 167 and Chapter 42 of the Texas Civil Practice
and Remedies Code;
(3) identify the party or parties making the offer and the party or parties to whom the
offer is made;
(4) state the terms by which all monetary claims — including any attorney fees,
interest, and costs that would be recoverable up to the time of the offer —
betweenthe offeror or offerors on the one hand and the offeree or offerees on the
other may be settled;
(5) state a deadline — no sooner than 14 days after the offer is served — by which
the offer must be accepted;
(6) be served on all parties to whom the offer is made.
(c) Conditions of offer. An offer may be made subject to reasonable conditions, including
the executionof appropriate releases, indemnities, and other documents. An offeree may
object to a condition by written notice served on the offeror before the deadline stated in
the offer. A condition to which no such objection is made is presumed to have been
reasonable. Rejection of an offer made subject to a condition determined by the trial court
to have been unreasonable cannot be the basis for an award of litigation costs under this
(d) Non-monetary and excepted claims not included. An offer must not include nonmonetary
claims and other claims to which this rule does not apply.
(e) Time limitations. An offer may not be made:
(1) before a defendant’s declaration is filed;
(2) within 60 days after the appearance in the case of the offeroror offeree, whichever
(3) within 14 days before the date the case is set for a conventionaltrialon the merits,
except that an offer may be made within that period if it is in response to, and
within seven days of, a prior offer.
(f) Successive offers. A party may make an offer after having made or rejected a prior offer.
A rejection of an offer is subject to imposition of litigation costs under this rule only if the
offer is more favorable to the offeree than any prior offer.
167.3 Withdrawal, Acceptance, and Rejection of Offer.
(a) Withdrawal of offer. An offer can be withdrawn before it is accepted. Withdrawal is
effective when written notice of the withdrawal is served on the offeree. Once an
unaccepted offer has been withdrawn, it cannot be accepted or be the basis for awarding
litigation costs under this rule.
(b) Acceptance of offer. An offer that has not been withdrawn can be accepted only by
written notice served on the offeror by the deadline stated in the offer. When an offer is
accepted, the offeror or offeree mayfile the offer and acceptance and may move the court
to enforce the settlement.
(c) Rejection of offer. An offer that is not withdrawn or accepted is rejected. An offer may
also be rejected by written notice served on the offeror by the deadline stated in the offer.
(d) Objection to offer made before an offeror’s joinder or designation of responsible
third party. An offer made before an offeror joins another party or designates a
responsible third party may not be the basis for awarding litigation costs under this rule
against an offeree who files an objection to the offer within 15 days after service of the
offeror’s pleading or designation.
167.4 Awarding Litigation Costs.
(a) Generally. If a settlement offer made under this rule is rejected, and the judgment to be
awarded on the monetary claims covered by the offer is significantly less favorable to the
offeree than was the offer, the court must award the offeror litigation costs against the
offeree from the time the offer was rejected to the time of judgment.
(b) “Significantly less favorable” defined. A judgment award on monetary claims is
significantly less favorable than an offer to settle those claims if:(1) the offeree is a claimant and the judgment would be less than 80 percent of the
(2) the offeree is a defendant and the judgment would be more than 120 percent of
(c) Litigation costs. Litigation costs are the expenditures actually made and the obligations
actually incurred — directly in relation to the claims covered by a settlement offer under
this rule — for the following:
(1) court costs;
(2) reasonable fees for not more than two testifying expert witnesses; and
(3) reasonable attorney fees.
(d) Limits on litigation costs. The litigation costs that maybe awarded under this rule must
not exceed the following amount:
(1) the sum ofthe noneconomic damages, the exemplary or additional damages, and
one-half of the economic damages to be awarded to the claimant in the judgment;
(2) the amount of any statutory or contractual liens in connectionwiththe occurrences
or incidents giving rise to the claim.
(e) No double recovery permitted. A party who is entitled to recover attorney fees and
costs under another lawmay not recover those same attorney fees and costs as litigation
costs under this rule.
(f) Limitation on attorney fees and costs recovered by a party against whom litigation
costs are awarded. A party against whom litigation costs are awarded maynot recover
attorney fees and costs under another law incurred after the date the party rejected the
settlement offer made the basis of the award.
(g) Litigation costs to be awarded to defendant as a setoff. Litigation costs awarded to
a defendant must be made a setoff to the claimant’s judgment against the defendant.
(a) Modification of time limits. On motion, and for good cause shown, the court may—
by written order made before commencement of trial on the merits — modify the time
limits for filing a declaration under Rule 167.2(a) or for making an offer.
(b) Discovery permitted. On motion, and for good cause shown, a party against whom
litigationcosts are to be awarded may conduct discovery to ascertain the reasonableness
of the costs requested. If the court determines the costs to be reasonable, it must order
the party requesting discovery to pay all attorney fees and expenses incurred by other
parties in responding to such discovery.
(c) Hearing required. The court must, upon request, conduct a hearing on a request for an
award of litigation costs, at which the affected parties may present evidence.
167.6 Evidence Not Admissible. Evidence relating to an offer made under this rule is not admissible
except for purposes of enforcinga settlement agreement or obtaininglitigationcosts. The provisions
of this rule may not be made known to the jury by any means.
167.7 Other Settlement Offers Not Affected. This rule does not apply to any offer made in a
mediation or arbitration proceeding. A settlement offer not made under this rule, or made in an
action to whichthis rule does not apply, cannot be the basis for awarding litigation costs under this
rule. This rule does not limit or affect a party’s right to make a settlement offer that does not
comply with this rule, or in an action to which this rule does not apply.
IN THE SUPREME COURT OF TEXAS
Misc. Docket No. 03– 9145
THE TEXAS RULES OF CIVIL PROCEDURE,
THE TEXAS RULES OF APPELLATE PROCEDURE,
THE TEXAS RULES OF EVIDENCE, AND
THE TEXAS RULES OF JUDICIAL ADMINISTRATION
1. As required by the Act of June 2, 2003, 78th Leg., R.S., ch. 204, 2003 Tex. Gen.
Laws ___ (“HB 4), and in accordance with its mandatory deadlines:
a. Rule 166 of the Texas Rules of Civil Procedure is amended as follows,
effective September 1, 2003;
b. Rules 24.2(a)(1), 24.2(b), and 24.4(a) of the Texas Rules of Appellate
Procedure are amended, and Rules 24.2(c)-(d) are added, as follows, effective in all cases in
which a final judgment is signed on or after September 1, 2003 (see HB 4 §§ 7.02, 7.03,
c. Rule 407(a) of the Texas Rules of Evidence is amended as follows, effective
in all cases filed on or after July 1, 2003 (see HB § 5.03, 23.02(c));
d. Rule 11.1 of the Texas Rules of Judicial Administration is amended, and Rule
11.7 is added, as follows, effective in all cases pending on August 31, 2003; and
e. Rule 13 of the Texas Rules of Judicial Administration is added as follows,
effective in all cases filed on or after September 1, 2003 (see HB 4 §§ 3.03, 23.02(a)).
2. The Clerk is directed to:
a. file a copy of this Order with the Secretary of State;
b. cause a copy of this Order to be mailed to each registered member of the State
Bar of Texas by publication in the Texas Bar Journal;
c. send a copy of this Order to each elected member of the Legislature; and
d. submit a copy of the Order for publication in the Texas Register.
3. These amendments may be changed in response to comments received before
December 1, 2003. Any interested party may submit comments in writing as follows:
by mail addressed to Rules Attorney
The Supreme Court of Texas
P.O. Box 12248
Austin TX 7871
by fax to the attention of the Rules Attorney at 512-463-1365
by email to email@example.com.
SIGNED AND ENTERED this 29th day of August, 2003.
Thomas R. Phillips, Chief Justice
Nathan L. Hecht, Justice
Craig T. Enoch, Justice
Priscilla R. Owen, Justice
Harriet O’Neill, Justice
Wallace B. Jefferson, Justice
Michael H. Schneider, Justice
Steven Wayne Smith, Justice
J. Dale Wainwright, Justice
1. Rule 166, Texas Rules of Civil Procedure, is amended by adding the following paragraph to
the end of the rule:
Pretrial proceedings in multidistrict litigation may also be governed by Rules 11 and
13 of the Rules of Judicial Administration.
2. Rule 24.2(a)(1) of the Texas Rules of Appellate Procedure is amended as follows:
24.2. Amount of Bond, Deposit or Security
(a) Type of Judgment.
(1) For Recovery of Money. When the judgment is for money, the amount of the
bond, deposit, or security must be at least equal the amount sum of
compensatory damages awarded in the judgment, interest for the estimated
duration of the appeal, and costs awarded in the judgment. But the amount
must not exceed the lesser of:
(A) 50 percent of the judgment debtor’s current net worth; or
(B) 25 million dollars.
3. Rule 24.2(b) of the Texas Rules of Appellate Procedure is amended as follows:
24.2. Amount of Bond, Deposit or Security
* * *
(b) Lesser Amount. The trial court may order a lesser amount than must lower the
amount of security required by (a) to an amount that will not cause the judgment
debtor substantial economic harm if, after notice to all parties and a hearing, the court
(1) that posting a bond, deposit, or security in the amount required by (a) will
irreparably harm is likely to cause the judgment debtor substantial economic
(2) that posting a bond, deposit, or security in a lesser amount will not
substantially impair the judgment creditor’s ability to recover under the
judgment after all appellate remedies are exhausted.
4. Rules 24.2(c)-(d) of the Texas Rules of Appellate Procedure are added as follows:
24.2. Amount of Bond, Deposit or Security
* * *
(c) Determination of Net Worth.
(1) Judgment Debtor’s Affidavit Required; Contents; Prima Facie Evidence. A
judgment debtor who provides a bond, deposit, or security under (a)(2) in an
amount based on the debtor’s net worth must simultaneously file an affidavit
that states the debtor’s net worth and states complete, detailed information
concerning the debtor’s assets and liabilities from which net worth can be
ascertained. The affidavit is prima facie evidence of the debtor’s net worth.
(2) Contest; Discovery. A judgment creditor may file a contest to the debtor’s
affidavit of net worth. The contest need not be sworn. The creditor may
conduct reasonable discovery concerning the judgment debtor’s net worth.
(3) Hearing; Burden of Proof; Findings. The trial court must hear a judgment
creditor’s contest promptly after any discovery has been completed. The
judgment debtor has the burden of proving net worth. The trial court must
issue an order that states the debtor’s net worth and states with particularity
the factual basis for that determination.
(d) Injunction. The trial court may enjoin the judgment debtor from dissipating or
transferring assets to avoid satisfaction of the judgment, but the trial court may not
make any order that interferes with the judgment debtor’s use, transfer, conveyance,
or dissipation of assets in the normal course of business.
5. Rules 24.4(a) of the Texas Rules of Appellate Procedure is amended as follows:
24.4. Appellate Review
(a) Motions; Review. On a party’s motion to the appellate court, that court may review:
(1) the sufficiency or excessiveness of the amount of security, but when the
judgment is for money, the appellate court must not modify the amount of
security to exceed the limits imposed by rule 24.2(a)(1);
(2) the sureties on any bond;
(3) the type of security;
(4) the determination whether to permit suspension of enforcement; and
(5) the trial court’s exercise of discretion under 24.3(a).
6. Rules 407(a) of the Texas Rules of Evidence is amended as follows:
RULE 407. Subsequent Remedial Measures; Notification of Defect
(a) Subsequent Remedial Measures. When, after an injury or harm allegedly caused by an
event, measures are taken which that, if taken previously, would have made the event injury or harm
less likely to occur, evidence of the subsequent remedial measures is not admissible to prove
negligence, or culpable conduct, a defect in a product, a defect in a product’s design, or a need for
a warning or instruction in connection with the event. This rule does not require the exclusion of
evidence of subsequent remedial measures when offered for another purpose, such as proving
ownership, control, or feasibility of precautionary measures, if controverted, or impeachment.
Nothing in this rule shall preclude admissibility in products liability cases based on strict liability.
7. Rule 11.1 of the Texas Rules of Judicial Administration is amended as follows:
11.1 Applicability. This rule applies to any case filed before September 1, 2003, that involves
material questions of fact and law in common with another case pending in another court in
another county on or after October 1, 1997.
8. Rule 11.7 of the Texas Rules of Judicial Administration is added as follows:
11.7 Relationship to Rule 13.
(a) Generally. This rule is to be construed and applied so as to facilitate the
implementation of Rule 13 to the greatest extent possible.
(b) Application of Rule 13 by Agreement of the Parties. Parties may agree to the
application of Rule 13. Such an agreement must be in writing and must be joined by
all parties to the case. An agreement is effective and irrevocable when it is filed with
the trial court if:
(1) no pretrial judge has been appointed in the case, or
(2) a pretrial judge has been appointed in the case, and the parties in all related
cases to which the same pretrial judge has been assigned have likewise agreed
to the application of Rule 13.
(c) Assignments of Pretrial Judges After September 1, 2003. An assignment of a pretrial
judge to any case after September 1, 2003, must be made in consultation with the
Chair of the Multidistrict Litigation Panel.
(d) Consultation of Pretrial Judges. In conducting pretrial proceedings and deciding
pretrial matters, a pretrial judge assigned under this rule must consult with the judge
of a pretrial court to which related cases have been transferred under Rule 13.
9. Rule 13 of the Texas Rules of Judicial Administration is added as follows:
Rule 13. Multidistrict Litigation
13.1 Authority and Applicability.
(a) Authority. This rule is promulgated under sections 74.161-.164 of the Texas
(b) Applicability. This rule applies to civil actions that involve one or more common
questions of fact and that were filed in a constitutional county court, county court at
law, probate court, or district court on or after September 1, 2003. Cases filed before
that date are governed by Rule 11 of these rules.
13.2 Definitions. As used in this rule:
(a) MDL Panel means the judicial panel on multidistrict litigation designated pursuant
to section 74.161 of the Texas Government Code, including any temporary members
designated by the Chief Justice of the Supreme Court of Texas in his or her discretion
when regular members are unable to sit for any reason.
(b) Chair means the chair of the MDL Panel, who is designated by the Chief Justice of
the Supreme Court of Texas.
(c) MDL Panel Clerk means the Clerk of the Supreme Court of Texas.
(d) Trial court means the court in which a case is filed.
(e) Pretrial court means the district court to which related cases are transferred for
consolidated or coordinated pretrial proceedings under this rule.
(f) Related means that cases involve one or more common questions of fact.
(g) Tag-along case means a case related to cases in an MDL transfer order but not itself
the subject of an initial MDL motion or order.
13.3 Procedure for Requesting Transfer.
(a) Motion for Transfer; Who May File; Contents. A party in a case may move for
transfer of the case and related cases to a pretrial court. The motion must be in
writing and must:
(1) state the common question or questions of fact involved in the cases;
(2) contain a clear and concise explanation of the reasons that transfer would be
for the convenience of the parties and witnesses and would promote the just
and efficient conduct of the cases;
(3) state whether all parties in those cases for which transfer is sought agree to
the motion; and
(4) contain an appendix that lists:
(A) the cause number, style, and trial court of the related cases for which
transfer is sought; and
(B) all parties in those cases and the names, addresses, telephone
numbers, fax numbers, and email addresses of all counsel.
(b) Request for Transfer by Judges. A trial court or a presiding judge of an
administrative judicial region may request a transfer of related cases to a pretrial
court. The request must be in writing and must list the cases to be transferred.
(c) Transfer on the MDL Panel’s Own Initiative. The MDL Panel may, on its own
initiative, issue an order to show cause why related cases should not be transferred
to a pretrial court.
(d) Response; Reply; Who May File; When to File. Any party in a related case may file:
(1) a response to a motion or request for transfer within twenty days after service
of such motion or request;
(2) a response to an order to show cause issued under subparagraph (c) within the
time provided in the order; and
(3) a reply to a response within ten days after service of such response.
(e) Form of Motion, Response, Reply, and Other Documents. A motion for transfer,
response, reply, or other document addressed to the MDLPanel must conform to the
requirements of Rule 9.4 of the Texas Rules of Appellate Procedure. Without leave
of the MDLPanel, the following must not exceed 20 pages: the portions of a motion
to transfer required by subparagraphs (a)(1)-(2); a response; and a reply. The MDL
Panel may request additional briefing from any party.
(f) Filing. A motion, request, response, reply, or other document addressed to the MDL
Panel must be filed with the MDL Panel Clerk. The MDL Panel Clerk may require
that all documents also be transmitted to the clerk electronically. In addition, a party
must send a copy of the motion, response, reply, or other document to each member
of the MDL Panel.
(g) Filing Fees. The MDL Panel Clerk may set reasonable fees approved by the
Supreme Court of Texas for filing and other services provided by the clerk.
(h) Service. A party must serve a motion, response, reply, or other document on all
parties in related cases in which transfer is sought. The MDL Panel Clerk may
designate a party or parties to serve a request for transfer on all other parties. Service
is governed by Rule 9.5 of the Texas Rules of Appellate Procedure.
(i) Notice to Trial Court. A party must file in the trial court a notice — in the form
prescribed by the MDLPanel—that a motion for transfer has been filed. The MDL
Panel Clerk must cause such notice to be filed when a request for transfer by a judge
has been filed.
(j) Evidence. The MDL Panel will accept as true facts stated in a motion, response, or
reply unless another party contradicts them. A party may file evidence with the MDL
Panel Clerk only with leave of the MDL Panel. The MDL Panel may order parties
to submit evidence by affidavit or deposition and to file documents, discovery, or
stipulations from related cases.
(k) Hearing. The MDL Panel may decide any matter on written submission or after an
oral hearing before one or more of its members at a time and place of its choosing.
Notice of the date of submission or the time and place of oral hearing must be given
to all parties in all related cases.
(l) Decision. The MDL Panel may order transfer if three members concur in a written
order finding that related cases involve one or more common questions of fact, and
that transfer to a specified district court will be for the convenience of the parties and
witnesses and will promote the just and efficient conduct of the related cases.
(m) Orders Signed by Chair or Clerk; Members Identified. Every order of the MDL
Panel must be signed by either the chair or by the MDL Panel Clerk, and must
identify the members of the MDL Panel who concurred in the ruling.
(n) Notice of Actions by MDL Panel. The MDL Panel Clerk must give notice to all
parties in all related cases of all actions of the MDL Panel, including orders to show
cause, settings of submissions and oral arguments, and decisions. The MDL Panel
Clerk may direct a party or parties to give such notice. The clerk may determine the
manner in which notice is to be given, including that notice should be given only by
email or fax.
(o) Retransfer. On its own initiative, on a party’s motion, or at the request of the pretrial
court, the MDL Panel may order cases transferred from one pretrial court to another
pretrial court when the pretrial judge has died, resigned, been replaced at an election,
requested retransfer, recused, or been disqualified, or in other circumstances when
retransfer will promote the just and efficient conduct of the cases.
13.4 Effect on the Trial Court of the Filing of a Motion for Transfer.
(a) No Automatic Stay. The filing of a motion under this rule does not limit the
jurisdiction of the trial court or suspend proceedings or orders in that court.
(b) Stay of Proceedings. The trial court or the MDL Panel may stay all or part of any
trial court proceedings until a ruling by the MDL Panel.
13.5 Transfer to a Pretrial Court.
(a) Transfer Effective upon Notice. A case is deemed transferred from the trial court to
the pretrial court when a notice of transfer is filed with the trial court and the pretrial
court. The notice must:
(1) list all parties who have appeared and remain in the case, and the names,
addresses, phone numbers, and bar numbers of their attorneys or, if a party
is pro se, the party’s name, address, and phone number;
(2) list those parties who have not yet appeared in the case; and
(3) attach a copy of the MDL transfer order.
(b) No Further Action in Trial Court. After notice of transfer is filed in the trial court,
the trial court must take no further action in the case except for good cause stated in
the order in which such action is taken and after conferring with the pretrial court.
But service of any process already issued by the trial court may be completed and the
return filed in the pretrial court.
(c) Transfer of Files; Master File and New Files in the Pretrial Court. If the trial court
and pretrial court are in the same county, the trial court must transfer the case file to
the pretrial court in accordance with local rules governing the courts of that county.
If the trial court and pretrial court are not in the same county, the trial court clerk
must transmit the case file to the pretrial court clerk. The pretrial court clerk, after
consultation with the judge of the pretrial court, must establish a master file and open
new files for each case transferred using the information provided in the notice of
transfer. The pretrial court may direct the manner in which pretrial documents are
filed, including electronic filing.
(d) Filing Fees and Costs. Unless the MDL Panel assesses costs otherwise, the party
moving for transfer must pay the cost of refiling the transferred cases in the pretrial
court, including filing fees and other reasonable costs.
(e) Transfer of Tag-along Cases. A tag-along case is deemed transferred to the pretrial
court when a notice of transfer—in the form described in Rule 13.5(a)—is filed in
both the trial court and the pretrial court. Within 30 days after service of the notice,
a party to the case or to any of the related cases already transferred to the pretrial
court may move the pretrial court to remand the case to the trial court on the ground
that it is not a tag-along case. If the motion to remand is granted, the case must be
returned to the trial court, and costs including attorney fees may be assessed by the
pretrial court in its remand order. The order of the pretrial court may be appealed to
the MDL Panel by a motion for rehearing filed with the MDL Panel Clerk.
13.6 Proceedings in Pretrial Court.
(a) Judges Who May Preside. The MDL Panel may assign as judge of the pretrial court
any active district judge, or any former or retired district or appellate judge who is
approved by the Chief Justice of the Supreme Court of Texas. An assignment under
this rule is not subject to objection under chapter 74 of the Government Code. The
judge assigned as judge of the pretrial court has exclusive jurisdiction over each
related case transferred pursuant to this rule unless a case is retransferred by theMDL
Panel or is finally resolved or remanded to the trial court for trial.
(b) Authority of Pretrial Court. The pretrial court has the authority to decide, in place
of the trial court, all pretrial matters in all related cases transferred to the court.
Those matters include, for example, jurisdiction, joinder, venue, discovery, trial
preparation (such as motions to strike expert witnesses, preadmission of exhibits, and
motions in limine), mediation, and disposition by means other than conventional trial
on the merits (such as default judgment, summary judgment, and settlement). The
pretrial court may set aside or modify any pretrial ruling made by the trial court
before transfer over which the trial court’s plenary power would not have expired had
the case not been transferred.
(c) Case Management. The pretrial court should apply sound judicial management
methods early, continuously, and actively, based on its knowledge of each individual
case and the entire litigation, in order to set fair and firm time limits tailored to
ensure the expeditious resolution of each case and the just and efficient conduct of
the litigation as a whole. After a case is transferred, the pretrial court should, at the
earliest practical date, conduct a hearing and enter a case management order. The
pretrial court should consider at the hearing, and its order should address, all matters
pertinent to the conduct of the litigation, including:
(1) settling the pleadings;
(2) determining whether severance, consolidation, or coordination with other
actions is desirable and whether identification of separable triable portions of
the case is desirable;
(3) scheduling preliminary motions;
(4) scheduling discovery proceedings and setting appropriate limitations on
discovery, including the establishment and timing of discovery procedures;
(5) issuing protective orders;
(6) scheduling alternative dispute resolution conferences;
(7) appointing organizing or liaison counsel;
(8) scheduling dispositive motions;
(9) providing for an exchange of documents, including adopting a uniform
numbering system for documents, establishing a document depository, and
determining whether electronic service of discovery materials and pleadings
(10) determining if the use of technology, videoconferencing, or teleconferencing
(11) considering such other matters the court or the parties deem appropriate for
the just and efficient resolution of the cases; and
(12) scheduling further conferences as necessary.
(d) Trial Settings. The pretrial court, in conjunction with the trial court, may set a
transferred case for trial at such a time and on such a date as will promote the
convenience of the parties and witnesses and the just and efficient disposition of all
related proceedings. The pretrial court must confer, or order the parties to confer,
with the trial court regarding potential trial settings or other matters regarding
remand. The trial court must cooperate reasonably with the pretrial court, and the
pretrial court must defer appropriately to the trial court’s docket. The trial court must
not continue or postpone a trial setting without the concurrence of the pretrial court.
13.7 Remand to Trial Court.
(a) No Remand If Final Disposition by Pretrial Court. A case in which the pretrial court
has rendered a final and appealable judgment will not be remanded to the trial court.
(b) Remand. The pretrial court may order remand of one or more cases, or separable
triable portions of cases, when pretrial proceedings have been completed to such a
degree that the purposes of the transfer have been fulfilled or no longer apply.
(c) Transfer of Files. When a case is remanded to the trial court, the clerk of the pretrial
court will send the case file to the trial court without retaining a copy unless
otherwise ordered. The parties may file in the remanded case copies of any pleadings
or orders from the pretrial court’s master file. The clerk of the trial court will reopen
the trial court file under the cause number of the trial court, without a new filing fee.
13.8 Pretrial court orders binding in the trial court after remand.
(a) Generally. The trial court should recognize that to alter a pretrial court order without
a compelling justification would frustrate the purpose of consolidated and
coordinated pretrial proceedings. The pretrial court should recognize that its rulings
should not unwisely restrict a trial court from responding to circumstances that arise
(b) Concurrence of the Pretrial Court Required to Change Its Orders. Without the
written concurrence of the pretrial court, the trial court cannot, over objection, vacate,
set aside, or modify pretrial court orders, including orders related to summary
judgment, jurisdiction, venue, joinder, special exceptions, discovery, sanctions
related to pretrial proceedings, privileges, the admissibility of expert testimony, and
(c) Exceptions. The trial court need not obtain the written concurrence of the pretrial
court to vacate, set aside, or modify pretrial court orders regarding the admissibility
of evidence at trial (other than expert evidence) when necessary because of changed
circumstances, to correct an error of law, or to prevent manifest injustice. But the
trial court must support its action with specific findings and conclusions in a written
order or stated on the record.
(d) Unavailability of Pretrial Court. If the pretrial court is unavailable to rule, for
whatever reason, the concurrence of the MDL Panel Chair must be obtained.
(a) MDLPanel Decision. Orders of the MDL Panel, including those granting or denying
motions for transfer, may be reviewed only by the Supreme Court in original
(b) Orders by the Trial Court and Pretrial Court. Orders and judgments of the trial
court and pretrial court maybe reviewed by the appellate court that regularly reviews
orders of the court in which the case is pending at the time review is sought,
irrespective of whether that court issued the order or judgment to be reviewed.
13.10 MDL Panel Rules. The MDL Panel will operate at the direction of its Chair in accordance
with rules prescribed by the panel and approved by the Supreme Court of Texas.
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