Untitled Texas Attorney General Opinion ( 1988 )

February 01, 1988
Jim MA-
*TroRNEY GRNRRAI.
Honorable Charles D. Houston Opinion No. JM-849
District Attorney
155th Judicial District Re: Whether amended Rule
One East Main 45, Texas Rules of Civil
Bellville, Texas 77418 Procedure, is applicable to'
criminal cases (RQ-1241)
Dear Mr. Houston:
You ask if Rule 45, Texas Rules of Civil Procedure,
as amended by order of the Texas Supreme Court of July 15,
1987, effective January 1, 1988, is applicable to criminal
cases. Rule 45 as amended provides:
Pleadings in the district and county
courts shall
. .
(a) be bv Detltlon and ans wer;
(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
grounds 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;
pi uaoer measurina
signed
by the party or his attorney, and b; filed
with the clerk.
All pleadings shall be ConStNed so as to do
substantial justice. (Emphasis added.)
p.4110
Honorable Charles D. Houston - Page 2 UM-849)
You express the concern that there should be
uniformity in the size of paper used for pleadings in
civil and criminal cases, and your inquiry appears to be
limited to section (d) of Rule 45. The underscored
portion of that section was added by the 1987 supreme
court order. M 50 Tex. B.J. 850, 852 (1987).
Section 22.004 of the Government Code (formerly
article 1731a, V.T.C.S.) sets forth the authority of the
supreme court to promulgate rules of procedure. It
provides, in pertinent part, as follows:
(a) Thee- court has the fuU
na Dower in the l2xwtice an!4
proceu in s except that its
rule may not abridge, enlakge, or modify the
substantive rights of a litigant.
(b) The supreme court
from time to time
rule or rul=s of
civil orocedure, or an amendment or amend-
ments to a specific rule or rules, to be
effective at the time the supreme court
deems expedient in the interest of a proper
administration of justice. . . .
(c) So that the supreme court has full
Nlemaking power in civil actions, a Nle
adopted by the supreme court repeals all
conflicting laws and parts of laws governing
. . . .
(d) The rules of practice and procedure
vi1 actipLlg shall be published in the
official reports of the supreme court. The
supreme court may adopt the method it deems
expedient for the printing and distribution
of the rules. (Emphasis added.)
See also Tex. Const. art. V, 525.
The
Texas Supreme Court addressed the scope of its
Nlemaking power under article 1731a, V.T.C.S. (now
section 22.004 of the Government Code) in &DD v. New, 226
S.W.Zd 116 (1950), stating:
This court, in promulgating rules of
civil procedure, was not attempting to
prescribe rules for the government of any
_,
p. 4111
Honorable Charles D. Houston - Page 3 W-849)
procedure except that pertaining to judicial
proceedings. It was acting under a statute
which conferred upon it the authority to
promulgate rules of practice and procedure
in civil actions only. The Act conferring
upon and relinquishing to this court full
rule-making power, Acts of 46th Legislature,
1939, page 201, Vernon's Civil Statutes,
a*. 1731a, invested the court with full
rule-making power in 'the practice and
procedure in civil actions.' u the first
section of that Act the intent was exnressed
Acting upon the authority of that statute,
this court, in Rule 2, defined the scope of
the rules in this language: 'These rules
shall govern the procedure in the justice,
county, district, and appellate courts of
the State of Texas in all actions of a civil
nature, . . .'
n of the
scowe of the Rules of Civil Procpdure tQ
civil actions in courts. . The filing of a
petition for the recall of city officials in
a home rule city under the powers conferred
in the charter of such city is not a civil
action, and is, therefore, not regulated' by
the Rules. (Emphasis added.)
It appears that in promulgating the present Rule 45,
the supreme court contemplated the construction of the
court 's Nlemaking power set forth in &~DD v . New.
Section (a) provides that pleading in the district and
county court shall "be by petition and answer." Article
27.01, Code of Criminal Procedure, states: "The primary
pleadings in a criminal action on the part of the State is
the indictment or information.n Article 27.02, Code of
Criminal Procedure sets forth the defendant's pleadings,
e.g., motion to set aside indictment, pleas of guilty, not
guilty, nolo contendere, application for probation.
Rule 45, Texas Rules of Civil Procedure, as amended
by order of the Texas Supreme Court of July 15, 1987,
effective January 1, 1988, is not applicable to criminal
cases.
p. 4112
Honorable Charles D. Houston - Page 4 (JW849)
SUMMARY
Rule 45, Texas Rules of Civil Procedure,
as amended by order of the Texas Supreme
Court of July 15, 1987, effective January 1,
1988, is not applicable to criminal cases.
JIM WATTOX
Attorney General of Texas
MARYKKLLKR
First Assistant Attorney General
IOU MCCREARY
Executive Assistant Attorney General
JUDGE ZOLLIE STKAKLKY
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Tom G. Davis
Assistant Attorney General
p. 4113