T. W. PROCTOR & ASSOCIATES
ATTORNEY & MEDIATOR SERVICES
630 UVALDE ROAD
HOUSTON, TX 77015-3766
|Terrell William "Terry" Proctor, J.D.||licensed: Supreme Court of Texas; and in the|
|Attorney/Mediator||So.Dist. Texas-Federal; U.S. 5th Circuit|
|Phones: (713) 453-8338||FAX (713) 453-3232|
|or 1-800-472-5721||eMail: firstname.lastname@example.org|
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The LAW SOURCE PAGE for ATTORNEYS
Welcome to our fellow attorneys, lawyers and barristers. Many times, as each of you knows, we know just what we need to look on a case, but have difficulty recalling just where the section of law we need is located. It is especially vexatious if your client is sitting there watching you trying to locate the part of the law you need and have just told the client essentially their position and then wish to quote the law to them, but cannot find it. This section of my web site, was originally an idea I had and had brought to the Houston Trial Lawyers Association, to allow them to publish this along with other helpful material and a Court Directory, back about 2000 or 2001. The idea was well received by many HTLA Board Members, but the then President vetoed the project. I was then the Chairman of the Litigation Cost Control Committee of the HTLA, which was originally authorized to put out the Court Directory and Litigation Assistance Manual. I wish to acknowledge with appreciation, the help of three members of the HTLA-LCCC members, who worked on the project, before our Committee was dissolved and the project shelved. Those three members were Laurie Pleasant (currently the HTLA President), Karen Semanek and Melinda Wesner. Thank you lawyers for your help.
It is my hope that this Quick Guide to areas
of Law will save my fellow attorneys many
hours of searching,
as I have done for years, trying to find the spot where some needed law is located.
(NOTE: Subjects are arranged alphabetically by common name to be sought)
Accidents And Accident Reports--Chapter 550 Trans.Code--sets out requirements on filing reports and on duty to give information and render aid.
Affirmative Defenses--Rule 94 TRCP--set out those affirmative defenses which must be pled, but does not change the burden of proof in a case.
Alternative Methods of Dispute Resolution--Chapter 151 TCPRC--as to a Special Judge, this section sets out appointment, procedure, fees, verdict and appeal.
Alternative Methods of Dispute Resolution--Chapter 154 TCPRC--provides for mediation, mini-trial, moderated settlement conference, summary jury trial, arbitration with procedures, et al.
Arbitration--Chapter 171, 172 and 173 TCPRC--sets out in detail jurisdiction, procedure, attorney fees, et al.
Assumed Name--Rule 28 TRCP--Party may sue or be sued in a partnership, unincorporated association, private corporation or individual d/b/a assumed name--on motion by any party the true name may be substituted.
Attachment--Chapter 61 TCPRC.
Attorney's Fees--Chapter 38 TCPRC--provides general means of pleading for attorney's fees, setting out the statutory general basis of the type of actions upon which one may plead for attorney's fees (except for all the special statutes which provide other means) and notice requirement.
Certified Mail--Proof of Mailing--§136.001 TCPRC--sets out use officially authorized.
Charitable Immunity and Liability--Chapter 84 TCPRC.
Contingency Fee Contract--Beware of lack of specificity--see (Levine v. Bayne, Snell & Krause, LTD-Tex. #99-0981) which holds that a contingency fee contract which states that the fee is on "any amount received by settlement or recovery", although that term would seem unambiguous, without more specificity by the attorney, will apply only to the net amount, after all offsets are taken, not on the total amount recovered, even if the client receives a benefit for the offset (here home mortgage balance, to benefit of client, was deducted from the award against the seller). Under this ruling an attorney could possibly be unable to collect a fee, if the offset wiped out the original suit amount, even if the offset was for client's benefit. See however Justices Hecht dissent, joined by Justice Abbott).
Contribution--Chapter 32 and 33 TCPRC--Chap. 32 on tort actions. Chapter 33(A) on Proportionate Responsibility & Chapter 33(B) on Contribution.
Current Name and Address required on Pleadings--Chapter 30 TCPRC--sets out that a party filing pleadings must provide the party's name and a current residence or business address and provides for a penalty for failure to do so.
Damages, Contribution--Chapter 32 TCPRC--sets out law on contribution--however see recent court rulings as this is a complicated area.
Damages, Exemplary--Chapter 41 TCPRC--sets out what applies and limits.
Death, Presumption--Chapter 133 TCPRC--sets out means to presume death including 7 year absence & armed services certificate.
Declaratory Judgments--Chapter 37 TCPRC--availability and procedure to obtain a Declaratory Judgment.
Discrimination Prohibited--Chapter 106 TCPRC--sets out prohibited areas and remedies.
Frivolous Pleadings & Claims--Rule 13 TRCP and Chapters 9 and 10 TCPRC--covers what is frivolous and remedies.
Frivolous Claim By State Agency--Chapter 105 TCPRC--sets out manner of suing State for filing a frivolous claim, including attorney's fees.
Full Faith & Credit clause--U.S. Constitution Art. IV Sec. 1.--basis for long arm statute and collecting judgments in other states.
Gang Membership--§125.061 et seq TCPRC-suit to abate nuisance, procedure, penalties and attorney's fees.
Garnishment--Chapter 63 TCPRC
Good Samaritan Law (Liability for Emergency Care)--Chapter 74 TCPRC
Governmental Employees, Liability--Chapter 104 TCPRC--sets out liability and persons covered.
Medical Liability and Insurance Improvement Act (medical malpractice)--Art. 4590i TRCS
Injunction--Chapter 65 TCPRC
Interest, Judgments--§304.001 Finance Code--Judgments in Texas to state interest, but if not stated, then they carry statutory rate.
Interest, Judgments--§304.003 Finance Code--Essentially 10% per annum--but follows a formula which you need to review (starting 1Sep'97).
Interest, Compounded--§304.006 Finance Code--interest on Judgments is to be compounded (starting 1 Sep'97).
Interest, Pre-Judgment--§304.103 Finance Code--same as on Judgments.
Interest, Pre-Judgment--§304.104 Finance Code--method of accrual.
Interest, Pre-Judgment on Healthcare cases--Art. 4590i Subchapter P Sec 16
Interest, Wrongful Death & P.I. cases--§304.101 Finance Code--specifically makes interest mandatory on judgments.
Interest, Judgments--when it starts--§304.006 Finance Code--runs from date Judgment is rendered to date Judgment is satisfied.
Landowner Liability--Chapter 75 TCPRC
Liability related to Fraudulent Court Record or Fraudulent Lien or Claim filed against Real or Personal Property--Chapter 11 TCPRC--sets out who may file under this section, and the costs of filing (very low), and damages.
Libel & Slander--Chapter 73 TCPRC
Limitations of Actions--Chapter 16 TCPRC--check this Chapter for limitations of various actions
Limitations of Actions--§16.069--allows Defendant to file counter-claim or cross-claims within 30 days even when limitations have run.
Long-Arm Jurisdiction--Chapter 17 TCPRC
Loss of Use of Vehicle--PJC 11.3 Comment--The Plaintiff may also recover the value of the use of the property during the time reasonably required to effect repairs or restoration. Chicago, Rock Island & Gulf Railway v. Zumwalt, 239 S.W. 912 (Tex.Comm'n App. 1922, judgm't adopted). To prove loss of use, it is not necessary to rent a replacement vehicle or show any amount actually expended for alternate transportation. Luna v. North Star Dodge Sales, Inc., 667 S.W.2d 115 (Tex. 1984).
Medical Liability and Insurance Improvement Act--Art 4590i T.R.C.S. (review and update)
Medical Malpractice--see Medical Liability and Insurance Improvement Act herein.
Medical Record Fees allowed by law--for what DOCTORS may charge by law for their records see 22 TAC §165.1, for the new rule promulgated by the Texas State Board of Medical Examiners (TSBME) regarding matters covered in Art. 4495 §5.08(j) & (k) TRCS; for Hospitals, see §241.151 et seq Texas Health and Safety Code (and especially §241.154). (THESE WERE LIMITATIONS IMPOSED BY THE LEGISLATURE ON HOSPITALS AND ON DOCTORS BY THE TEXAS BOARD OF MEDICAL EXAMINERS, IN 1995, UPON THE INITIATION OF THE HOUSTON TRIAL LAWYERS, LITIGATION COST CONTROL COMMITTEE) The HTLA was assisted by the Texas Trial Lawyers Association, in the Legislature. This Legislation and Rule-Making benefitted everyone except the few doctors who were gouging on charges for the patient's Medical Records. Those who benefitted were the ethical doctors who now feel more free to charge a reasonable fee for their records, Defense firms, Insurance companies and Plaintiff's attorneys, all of whom pay for a lot of medical records and ultimately the clients, who have to reimburse for the medical records. Terry Proctor is pleased to have been chairman of the Litigation Cost Control Committee of the HTLA which initiated this beneficial law.
Mental Health Treatment, Declaration--Chapter 137 TCPRC--sets out definitions, procedures, forms et al.
"Mother Hubbard" clause--this is a clause which recites something to the effect "this judgment disposes of all parties and issues and all relief not specifically granted, is denied" Mafrige v. Ross, 866 S.W.2d 590, 590 n.1 (Tex. 1993) HOWEVER, in that same case the Texas Supreme Court admonished the bench and bar that "a Mother Hubbard has 'no place' in a partial summary judgment and should not be used". If a judgment does not dispose of all parties and issues, then it is not a final judgment and should not contain such language making it appear that it does.
New Trial--Rules 320-329b TRCP--(no affidavit is normally required in a motion for new trial, but it is necessary when the motion for new trial is based on the grounds listed in Rule 324(b)(1) TRCP, per O'Connor's Texas Rules Civil Trial 2001.
Notary--requirements and forms--Chapter 121 TCPRC--sets out details on being a Notary, duties and various acceptable forms.
Nuisance, common & public--Chapter 125 TCPRC--suits to abate etc.
Permission To Sue State--Chapter 107 TCPRC-sets out exclusive means to do this.
Personnel file--request to obtain personnel file during discovery approved Tri-State Wholesale Associated Grocers, Inc. v. Barrera, 917 S.W.2d 391, 399 (Tex.App.--El Paso 1996, writ dism'd) and In re Lavernia Nursing Facility, Inc., 12 S.W.3rd 566, 670 (Tex.App.--San Antonio 1999, ori. proceeding)
Post-Judgment Discovery--Rules 620 and 621a TRCP. Provides separate rule to enforce judgments which adopts essentially the same ability to do discovery and gives the Court jurisdiction, after plenary powers have normally elapsed to hear discovery motions and enforce discovery as during trial.
Power of Attorney, Durable for Health Care--Chapter 135 TCPRC.
Production--Expenses incident to--Rule 196.6--provides that unless ordered by the Court for good cause, the expense in producing items will be by the responding party and the expense of inspecting, sampling, testing photographing and copying items is on the requesting party.
Production of Financial Institution Records--§ 30.007 TCPRC--provides means to obtain records from financial institutions.
Production options--There are four options under a Request for Production, according to O'CONNOR's Texas Rules * Civil Trials 2001: (1) produce the requested documents; (2) object to the request; (3) file a withholding statement to assert privileges; or (4) deny the existence of the requested documents, citing Wal-Mart Stores, Inc. v. Cordova, 856 S.W.2d 768, 772 (Tex.App.--El Paso 1993, writ denied).
Products Liability--Chapter 82 TCPRC
Proportionate Responsibility--Chapter 33 TCPRC--can't collect if party is over 50% and provides the law on exceptions, determination and joinder of third parties.
Quo Warranto--Chapter 66 TCPRC
Reasonableness and Necessity Affidavit--Chapter 18 TCPRC--sets out means of proving up reasonableness and necessity and provides form affidavit for use to comply & means of challenging same.
Receivership--Chapter 64 TCPRC
Reviving Dormant Judgments--§31.006 TCPRC.
Rule 11 TRCP Agreements--Rule 11 TRCP. You settled your case and sent a letter saying you had done so and so you are safe to ignore the Statute of Limitations about to run, right? WRONG. "No agreement between the attorneys or parties to a suit is enforceable under Rule 11 unless it is in writing, signed, and filed with the papers as part of the record, or unless it is made in open court and entered of record". James Prevost et al v. Insurance Advisors of Texas, Inc. et al, (Civ.App. Ft. Worth 2000) citing Kosowska v. Kahn, 929 S.W.2d 505,507 (Tex.App.-San Antonio 1996, writ denied)
Sanctions--Rule 215.2(b) TRCP--other Rules refer to this section for the list of what sanctions can be imposed.
Sequestration--Chapter 62 TCPRC
Signature requirements and effects--Rule 11 TRCP (agreements between attorneys); Rule 13 TRCP (effect of signing Pleadings); Rule 45(d) TRCP (Pleadings must be in writing and signed); Rule 57 TRCP (every pleading shall be signed by the party or attorney with other identification set out); Rule 93 TRCP (pleas which must be signed and verified by affidavit); Rule 191.3(a) TRCP (every disclosure, discovery request, notice, response, and objection must be signed).
Special Appearance--Challenge to jurisdiction of court by non-resident--Rule 120a TRCP
Summary Judgment--Attorney signing as expert witness--An attorney who signs an affidavit on a Motion for Summary Judgment may not continue to represent client [Mauze vs. Curry, 861 S.W.2nd 869 (Sup.Crt. 1993 Reh Ovrld)]. In this case, attorney was only witness for client.
Theft, Civil liability--Chapter 134 TCPRC--person who commits and or parent or custodian of a child who commits theft is liable for damages and attorney's fees.
Tort Claims-State--Chapter 101 TCPRC--sets out Texas Tort Claims Act.
Tort Claims-Local Govt--Chapter 102 TCPRC--sets out Local Government liability for Torts.
Trial exhibits--a party may not request copies of the other party's trial exhibits Texas Tech Univ. Health Sciences Ctr. v. Schilde, 828 S.W.2d 502, 504 (Tex.App.--El Paso 1992). However, under a discovery control order or pretrial order, the Court may order the parties to mark and exchange exhibits and to stipulate as to their authenticity and admissibility per Rules 166(l) and 192.5(c)(2) TRCP.
Vehicle Size And Weight--Chapter 621 Trans.Code--gives information on truck regulations, fees and enforcement
Vehicle violations--Chapter 545 Trans.Code--called "Operation And Movement Of Vehicles" use for specific acts of negligence per se
Venue--Chapter 15 TCPRC--Sets out details on venue §15.092 for contracts; §15.093 for Torts; §15.094 for Corporations
Verified Pleadings--Rule 93 TRCP (pleas which must be verified); Rule 166a TRCP (summary judgment affidavits--not the pleading itself); Rule 185 TRCP (suit on sworn account--must be supported by an sworn affidavit AND the Defendant, to avoid judgment, must timely file a sworn written denial); Rule 197.2(d) TRCP (signature and verification required on Interrogatories [but not admissions, production or request for disclosure) Rule 199.5 (3)(b) TRCP (Oral deposition deponents are to be placed under oath before deposition is taken); Rule 200.4 TRCP (officer taking deposition by written question is to record testimony of the witness under oath); Rule 324(b)(1) TRCP (no affidavit is normally required in a motion for new trial, but it is necessary when the motion for new trial is based on the grounds listed in Rule 324(b)(1) TRCP, per O'Connor's Texas Rules Civil Trial 2001.Wrongful Death and Survival Statutes--Chapter 71 TCPRC--Subchapter (A) is wrongful death statutes and Subchapter (B) is the Survival with other Subchapter (C) dealing with out of state situations and Subchapter (D) dealing with Forum Non Conveniens.
Wrongful imprisonment, Compensation--Chapter 103 TCPRC--sets out the manner of collecting for wrongful imprisonment.