Baker Donelson

Harris County District Court Local Rules versus Judge’s Court Procedures (2024)

Local Rule 3.3.3 has not been adopted by rogue judge(s) and as such, they are acting beyond their judicial capacities by policymaking.

LIT COMMENTARY

LIT analyzed all the District Judge’s web pages specific to their own court procedures.

Three out of 24 Judges in Conflict over Submission Rule (12.5%)

All judge’s comply with LR 3.3.3 with the exception of Judge Hawkins and there’s confusion over Judge Davis’s and Judge Morris’s status.

Judge Hawkins

11TH DISTRICT COURT PROCEDURES

1. HEARINGS

The 11th District Court conducts oral hearings on Mondays in the 11th District Court’s courtroom.
Hearings are conducted in person.

The Court does not have a submission docket.

All contested motions must be set for an in-person oral hearing.

Judge Davis

On her home page, in super bold it states:

EFFECTIVE IMMEDIATELY

Motion For Summary Judgments

1.  All MSJs must be put on the MSJ submission docket.
2. The MSJ submission docket is only accessed via the District Clerk’s online E-hearing portal.
3. MSJ submission dockets are on Tuesdays.
4. No oral arguments for MSJs.
If you have any questions, please contact the District Clerk’s Office at 832-927-2270.

But, further down, bold and highlighted in yellow;

The 270th Court announces that we now offer e-hearings for the setting of ALL hearings except trial settings.

There is no submission docket for the 270th Court.    

And to confuse matters more, since there is no effective date noted in these front page announcements…

Here’s a case set for submission in a Jan. 30, 2024 filing.

Judge Morris

There’s no mention of the submission docket on her court procedures (.pdf).

However, here’s a case where it was set for submission in a July 7, 2023 filing.

Tex. Gov.’t Code Adoption

When the majority of judges approve the Code, and then apply it to the local court rules, then it is clear that Judge’s own court “procedures” cannot overshadow the rule by rejecting it. Otherwise, the rule of orderliness is discretionary and that could not and should not stand.

As we have shown, at least one judge is clearly violating the LR (Hawkins), with two other’s who appear to be in conflict.

This should be resolved by Harris County immediately.

The Fifth Circuit has discussed this in length, pertaining to Dallas, but the same principles apply here.

“The District Judges have used their local rule setting authority, Tex. Gov’t Code Ann. § 74.093(c), to issue a bond schedule that in practice controls their subordinates. It is clear from both Plaintiffs’ complaint and from the district court’s fact-finding that the District Judges effectively ensure that their schedule is applied.”

and (discussing county rather than district judges, but ultimately it also applies to district judges);

So, they are county officials acting on behalf of the county—but are they also engaged in policymaking ?

Yes.

To be sure, most of the time and in most contexts, they are not; their primary job is to decide cases and controversies, a classic judicial function.

See Johnson v. Moore , 958 F.2d 92, 93–94 (5th Cir. 1992) ; see also, e.g., Adams v. Governor of Del. , 922 F.3d 166, 178–79 (3d Cir. 2019), rev’d on other grounds and vacated sub nom. Carney v. Adams , ––– U.S. ––––, 141 S. Ct. 493, 208 L.Ed.2d 305 (2020).

But the question here is conduct-specific.

The operative inquiry focuses on whether, as a practical matter, the judges act as policymakers in this particular context —not whether the judges act as policymakers for Dallas County “in some categorical, ‘all or nothing’ manner.”

McMillian , 520 U.S. at 785, 117 S.Ct. 1734.

The question is simply whether they set policy “in a particular area, or on a particular issue.” Id.

Thus, we need not “make a characterization … that will hold true for every type of official action the [judges] engage in”—we must simply determine whether the County Judges are county policymakers with respect to the specific conduct at issue in this case. Id.

With that framing, the specific conduct at issue here—setting a bond schedule for others to apply and then acquiescing in its rigid application—is policy-setting conduct that is not undertaken in the County Judges’ judicial capacity.

Judges typically act beyond their judicial capacities (and thereby can both act as policymakers and be directly enjoined under § 1983 ) whenever their conduct is untethered from any particular “controversy which must be adjudicated.”

Sup. Ct. of Va. v. Consumers Union of U.S., Inc. , 446 U.S. 719, 731, 100 S.Ct. 1967, 64 L.Ed.2d 641 (1980) (internal quotation marks and citation omitted); cf. Davis v. Tarrant Cnty. , 565 F.3d 214, 227 (5th Cir. 2009) (noting that acts taken in a judicial capacity do not create county liability).

Consistent with these principles, in Davis , we identified a four-factor test for determining whether conduct is judicial in nature, looking to whether the conduct at issue:

(1) is “a normal judicial function”;

(2) “occurred in the courtroom or appropriate adjunct spaces”;

(3) “centered around a case pending before the court”;

and

(4) “arose directly out of a visit to the judge[s] in [their] official capacity.”

565 F.3d at 222.

We have likewise identified that issuing general orders regarding how to process stages of litigation does not qualify as a judicial act.

Id. at 222 & n.3

(citing for that proposition Morrison v. Lipscomb , 877 F.2d 463, 465–66 (6th Cir. 1989) ).

Balancing the Davis factors, the County Judges were not engaged in judicial conduct here because they were merely directing other judges in a manner divorced from any given case.

First, it is indisputable that setting bail in a particular case is a normal judicial function in the abstract.

See Garza v. Morales , 923 S.W.2d 800, 803 (Tex. App.—Corpus Christi, 1996, no writ).

But it is not a normal judicial function for the County Judges to set generic bail for the Magistrate Judges, who are the ones who generally set conditions of release in Dallas County’s bail system.

See Ex parte Clear , 573 S.W.2d 224, 229 (Tex. Crim. App. 1978) (en banc)

(noting that Magistrate Judges can have “[s]ole jurisdiction” over bail determinations in some circumstances).

Second, nothing indicates that the bond schedules were prepared by the County Judges in the Magistrate Judges’ chambers or any other “adjunct” spaces to the Magistrate Judges’ courtrooms. Davis , 565 F.3d at 222.

Perhaps most significant are the third and fourth factors: setting a generally applicable bond schedule is definitively not “centered around” any individual case and does not, as a consequence, result “directly out of a visit” to the County Judges in any sort of judicial capacity. Id.

Considering these factors, the County Judges are not acting in a judicial function in this context; they are setting policy on how others should process cases.

Daves v. Dall. Cnty., 22 F.4th 522, 563, 559-60 (5th Cir. 2022)

IN SUMMARY

Judge Hawkins and perhaps 2 other Harris County District Judges are acting outwith their judicial capacity by failing to follow LR 3.3.3, in violation of the rules, the rule of orderliness and the Constitution (inc. due process).

LIT notes that orderliness is usually an appellate standard, (Herczeg v. City of Dallas, No. 05-19-01023-CV, at *4 n.4 (Tex. App. Mar. 29, 2021) (“Under the rule of orderliness, panels of the court lack the ability to reverse each other. ”)) but it is equally applicable here, as the Gov’t Code in question specifically states that it is agreed and adopted by the majority of judges.

Court response pending….

Thank you for the expedient response.

I am aware that district judges enjoy somewhat liberal discretion, but I have reason to believe – in my humble pro se opinion – that this violates Tex. Gov’t Code as it oversteps the local rules, and thus, due process protections.

Could you please point me to the law if I am mistaken?

Good morning. Per Judge Hawkins, she does not have a submission docket.

Anais Aguirre
11th Lead Clerk

Good morning

202386973 – BURKE, JOANNA vs. DEUTSCHE BANK NATIONAL TRUST COMPANY (Court 011)

LOCAL RULES VERSUS COURT 011 PROCEDURES

I wonder if you could be of assistance.

I read this court’s local rule pertaining to motions, and in particular, LR 3.3.3.

This court’s own procedures at 1 conflicts with LR 3.3.3.

As such, I respectfully request the legal authority, statute and/or rules which would prevent me from setting a motion for submission, rather than in person.

This is a time sensitive request. I respectfully request a timely response.

Thank you.

Sincerely,

Tex. Gov’t Code § 74.093

(a) The district and statutory county court judges in each county shall, by majority vote, adopt local rules of administration.

(b) The rules must provide for:

(1) assignment, docketing, transfer, and hearing of all cases, subject to jurisdictional limitations of the district courts and statutory county courts;

Daves v. Dall. Cnty., 22 F.4th 522, 563 (5th Cir. 2022)

“ The District Judges have used their local rule setting authority, Tex. Gov’t Code Ann. § 74.093(c), to issue a bond schedule that in practice controls their subordinates.

It is clear from both Plaintiffs’ complaint and from the district court’s fact-finding that the District Judges effectively ensure that their schedule is applied. ”

Tex. Gov’t Code § 74.093 (c)

The rules may provide for:

(1) the selection and authority of a presiding judge of the courts giving preference to a specified class of cases, such as civil, criminal, juvenile, or family law cases;
(2) other strategies for managing cases that require special judicial attention;
(3) a coordinated response for the transaction of essential judicial functions in the event of a disaster; and
(4) any other matter necessary to carry out this chapter or to improve the administration and management of the court system and its auxiliary services.
(c-1) The rules may provide for the establishment and maintenance of the lists required by Section 37.003, including the establishment and maintenance of more than one of a list required by that section that is categorized by the type of case, such as family law or probate law, and the person’s qualifications.
(d) Rules relating to the transfer of cases or proceedings shall not allow the transfer of cases from one court to another unless the cases are within the jurisdiction of the court to which it is transferred. When a case is transferred from one court to another as provided under this section, all processes, writs, bonds, recognizances, or other obligations issued from the transferring court are returnable to the court to which the case is transferred as if originally issued by that court.

B. District Judges

Much of the foregoing analysis concerning County Judges applies to the District Judges as well.

There is, though, a different constitutional section to consider.

It makes clear that district courts are part of a statewide system:

“The State shall be divided into judicial districts, with each district having one or more Judges as may be provided by law or by this Constitution.” TEX. CONST. art. V, § 7.

Additional relevant analysis was in the panel opinion in this case.

Daves , 984 F.3d at 397, vacated , 988 F.3d 834.

We do not see error in the panel’s discussion.

We summarize some of it here.

It is evident that the state district courts are one level of the state judicial system, with appeals in most cases to a state court of appeals and possible review by Texas’s Supreme Court or Court of Criminal Appeals. For an understanding of district courts, we quote the official Texas Judicial Branch website, which states:

The district courts are the trial courts of general jurisdiction of Texas. The geographical area served by each court is established by the Legislature, but each county must be served by at least one district court. In sparsely populated areas of the State, several counties may be served by a single district court, while an urban county may be served by many district courts.

About Texas Courts, District Courts, supra note 7.

Ten of the seventeen defendant District Judges are identified in the pleadings as judges of District Courts and seven as judges of Criminal District Courts.

Also relevant is our earlier holding that for purposes of appointing counsel for indigent criminal defendants, the state district court judges act for the State.

See Clanton v. Harris Cnty. , 893 F.2d 757, 758 (5th Cir. 1990).

We relied on a precedent which held that Texas district judges “are undeniably elected state officials.” Id. (quoting Clark v. Tarrant Cnty. , 798 F.2d 736, 744 (5th Cir. 1986) ).

We conclude that when these district judges made a bail schedule, they acted as officers of the state judicial system.

The federal district court, though, held that these judges were county officers.

The court relied on our earlier rulings about statutory county judges in Harris County and found no need to reason further about this additional category of judges.

See ODonnell I , 892 F.3d at 155–56.

We have already explained our disagreement with the ODonnell holding, and we reject applying similar reasoning to District Judges.

Because these District Judges acted for the State when addressing bail, we reverse the lower court’s contrary holding.

LOCAL RULES – CIVIL COURT RULES

RULES of the CIVIL TRIAL DIVISION

Harris County District Courts

4/28/2014

Rule 1.  OBJECTIVE OF RULES.

The objective of the rules of the Civil Trial Division of the District Courts of Harris County is to obtain a just, fair, equitable and impartial adjudication of the rights of litigants under established principles of substantive law and established rules of procedural law. To the end that this objective may be attained with as great expedition and dispatch and at the least expense, both to the litigants and to the state, as may be practicable, the rules shall be applied to ensure that, so far as reasonably possible, all matters are brought to trial or final disposition in conformity with the following standards:

(a) Civil jury cases within 18 months from appearance date;

(b) Civil non-jury cases within 12 months from appearance date.

Rule 2.  REPORTS TO ADMINISTRATIVE  JUDGE.

The district clerk shall supply to the Administrative Judge of the Civil Trial Division, on a monthly basis, information concerning the number of filings, dispositions, trials and other judicial activities in each court in the Civil Trial Division.

Rule 3.  FLOW OF CASES.

3.1 FILING AND ASSIGNMENT.

On being filed, a case in the Civil Trial Division shall be assigned randomly to the docket of one of the courts in that Division. Once assigned to a court, a case will remain on the docket of that court for all purposes unless transferred as provided in Rule 3.2.

3.2 TRANSFER.

3.2.1 Prior Judgment.

Any claim for relief based upon a prior judgment shall be assigned to the court of original judgment.

3.2.2  Prior filings.

Any matter filed after a non-suit, dismissal for want of prosecution, or other disposition of a previous filing involving substantially-related parties and claims shall be assigned by the Administrative Judge of the Civil Trial Division to the court where the prior matter was pending.

3.2.3 Consolidation.

(a) Consolidation of Cases.

Subject to subpart c, a motion to consolidate cases must be heard in the court where the first filed case is pending. If the motion is granted, the consolidated case will be given the number of the first filed case and assigned to that court.

(b) Consolidation of Discovery.

Subject to subpart c, a motion to consolidate discovery in separate cases must be heard in the court where the first filed case is pending. If the motion to consolidate discovery is granted, the case will not transfer, but the case management will be conducted by the consolidating court.

(c) Consolidation to Special Dockets.

Special dockets for the management of multi-court cases may be created by order of the Administrative Judge of the Civil Trial Division according to policies approved by the judges of the Civil Trial Division.

3.2.4 Severance.

If a severance of a claim or a defendant in a case is ordered, the new case will be assigned to the court where the original case pends, bearing the same file date and the same number as the original case with a letter designa­tion. If a severance of multiple plaintiffs or intervenors in a case is ordered, the new case(s) may be randomly reassigned by the Administrative Judge of the Civil Trial Division. If not randomly reassigned, the case(s) will stay in the same court. When a severed case has previously been consoli­dated from another court, the case shall upon severance be assigned to the court from which it was consolidated.

3.2.5 Agreement.

Any case may be transferred from one court to another court by written order of the Administrative Judge of the Civil Trial Division or by written order of the judge of the court from which the case is transferred; provided, however, that in the latter instance the transfer must be with the written consent of the court to which the case is transferred.

3.2.6 Presiding for Another.

In all cases where a court presides for another court, the case shall remain pending in the original court. If available, the judge who signed an order shall preside over any motion for contempt of that order, except as otherwise provided in Sec. 21.002, Tex. Gov. Code.

3.2.7 Administrative Transfers.

The Administrative Judge of the Civil Trial Division may transfer cases between courts or may assign cases from one court to another court for hearing due to illness, trial schedule, or other sufficient reasons.

3.2.8 Improper Court.

If a case is on the docket of a court by any manner other than as prescribed by these rules, the Administrative Judge of the Civil Trial Division shall transfer the case to the proper court.

3.3 MOTIONS.

3.3.1 Form.

Motions shall be in writing and shall be accompanied by a proposed order granting the relief sought. The proposed order shall be a separate instrument, unless the entire motion, order, signature lines and certificate of service are all on one page.

3.3.2 Response.

Responses shall be in writing and shall be accompanied by a proposed order. Failure to file a response may be considered a representation of no opposition.

3.3.3 Submission.

Motions may be heard by written submission. Motions shall state Monday at 8:00 a.m. as the date for written submission. This date shall be at least 10 days from filing, except on leave of court. Responses shall be filed at least two working days before the date of submission, except on leave of court.

3.3.4 Oral Hearings.

Settings for oral hearings should be requested from the court clerk. The notice of oral hearing shall state the time and date.

3.3.5 Unopposed Motions.

Unopposed motions shall be labeled “Unopposed” in the caption.

3.3.6 Extension of Certificates of Conference.

The certificates of conference required by the Texas Rules of Civil Procedure are extended to all motions, pleas and special exceptions except summary judgments, default judgments, agreed judgments, motions for voluntary dismissal or non-suit, post-verdict motions and motions involving service of citation.

3.4 TRIALS.

3.4.1 Manner of Setting.

Cases shall be set for trial by order of the court.

3.4.2 Date of Setting.

Cases shall be set for trial for a date certain. If a case is not assigned to trial by the second Friday after the date it was set, whether because of a continuance or because it was not reached, the court shall reset the case to a date certain. Unless all parties agree otherwise, the new setting must comply with all requisites of T.R.C.P. 245.

3.4.3 Assignment to Trial.

A case is assigned to trial when counsel are called to the court to commence the jury or non-jury trial on the merits. For purposes of engaged counsel, no court may have more than one case assigned to trial at any one time.

3.4.4 Dead Weeks.

Except with the consent of all parties, no court will assign cases to trial on the merits, or set oral hearings on motions, during:

(a) The week of the spring state or regional judicial conference

(b) The week of the State Bar Convention;

(c) The week of the Conference of the Judicial Section (September); and

(d) Any December week or weeks where the Monday of that week begins with the dates, Dec. 22-31.

3.5 ANCILLARY DOCKET.

3.5.1 Ancillary Docket. The ancillary docket consists of the following :

a) Applications for temporary restraining orders;

b) Motions to dissolve or modify temporary restraining orders;

c) Motions to modify the bond for a temporary restraining order;

d) Motions to authorize emergency medical treatment;

e) Requests before any suit has been filed to appoint umpires or arbitrators;

f) The following matters, when brought under Chapter 81 of the Texas Health & Safety Code:

i.   Motions for orders of protective custody;

ii.  Motions for orders of temporary protective custody;

iii. Motions for orders for temporary detention pending a hearing on a motion to modify an order for outpatient treatment;

iv. Appointment of attorneys for persons subject to protective custody or detention orders; and

v.  Probable cause hearings.

3.5.2 Ancillary Judge.

The Ancillary Judge is responsible for hearing all matters on the ancillary docket. Each judge will serve as Ancillary Judge for one-half of a calendar month according to a schedule adopted by the judges of the Civil Trial Division. The Ancillary Judge will be available at the courthouse on business days during regular business hours, and will provide the county switchboard with the means to locate the Ancillary Judge at all other times.

If not available to serve at any time during the term, the Ancillary Judge will designate, in writing, another judge to serve ad interim, and will notify the Administrative Judge of the Civil Trial Division, the ancillary clerk, and the county switchboard of that designation.

In the absence or unavailability of the Ancillary Judge or designee under the rule, matters requiring judicial attention will be presented to the Administrative Judge of the Civil Trial Division for ruling or assignment to another judge for ruling.

3.5.3 Authority to Grant Ancillary Relief.

No judge other than the Ancillary Judge may grant ancillary relief without a written order from the Ancillary Judge or Administrative Judge of the Civil Trial Division. However, either the Presiding Judge or the Ancillary Judge may grant an extension of a temporary restraining order. In requests for ancillary relief, the Ancillary Judge shall hear the matters as “Judge Presiding” for the court in which the case is pending.

3.6 DISMISSAL DOCKETS.

The following cases are eligible for dismissal for want of prosecution pursuant to T.R.C.P. 165a:

(a) Cases on file for more than 120 days in which no answer has been filed or is required by law;

(b) Cases which have been on file for more than eighteen months and are not set for trial;

(c) Cases in which a party or his attorney has failed to take any action specified by the court.

Rule 10.         CONFLICTING ENGAGEMENTS.

10.1 INTER-COUNTY.

The Rules of the Second Administrative Judicial Region control conflicts in settings of all kinds between a Harris County court and a court not in Harris County. The Rules of the Second Administrative Judicial Region are available in the District Clerk’s office.

10.2 INTRA-COUNTY.

Among the trial courts sitting in Harris County:

(a) Trial/Non-Trial. Trial settings take precedence over conflicting non-trial settings; and

(b) Trial/Trial. A trial setting that is assigned takes precedence over a conflicting trial setting not yet assigned.

10.3 WAIVER.

The court with precedence may yield.

10.4 LEAD COUNSEL.

This rule operates only where lead counsel, as defined by T.R.C.P. 8, is affected, unless the court expands coverage to other counsel.

Rule 11.  VACATIONS  OF COUNSEL.

11.1 DESIGNATION OF VACATION.

Subject to the provision of subparts .2 and .3 of this Rule, an attorney may designate not more than four weeks of vacation during a calendar year as vacation, during which that attorney will not be assigned to trial or required to engage in any pretrial proceedings. This rule operates only where lead counsel, as defined by T.R.C.P. 8, is affected, unless the trial court expands coverage to other counsel.

11.2 SUMMER VACATIONS.

Written designation for vacation weeks during June, July, or August must be filed with the district clerk by May 15. Summer vacation weeks so designated will protect the attorney from trials during those summer weeks, even if an order setting the case for trial was signed before the vacation designation was filed.

11.3 NON-SUMMER VACATIONS.

Written designation for vacation in months other than June, July, or August must be filed with the district clerk by February 1. Non-summer vacation weeks may not run consecutively for more than two weeks at a time. Non-summer vacation weeks so designated will not protect an attorney from a trial by an order signed before the date the designation is filed.

Rule 12.         ADMINISTRATIVE JUDGE OF THE CIVIL TRIAL DIVISION.

12.1 ELECTION.

The Administrative Judge of the Civil Trial Division shall be elected for a term of one calendar year by the judges of the Civil Trial Division at the regular December meeting of the judges of the Civil Trial Division. No judge may serve more than two consecutive terms as Administrative Judge. If a vacancy occurs in the office of Administrative Judge, the judges of the Civil Trial Division must hold an election to fill the vacancy at their next monthly meeting.

12.2 DESIGNEE.

The Administrative Judge of the Civil Trial Division may by written order designate any other judge of the Division to act for the judge when the Administrative Judge is absent or unable to
act. The judge so designated shall have all the duties and authority granted by these Rules to the Administrative Judge of the Civil Trial Division during the period of the designation.

Rule 15.         UNIFORMITY.

15.1 TRIAL AND DISMISSAL DOCKETS.

The judges of the Civil Trial Division shall only use those docket management form letters and form orders which have been approved by the judges of the Civil
Trial Division.

15.2 APPOINTEE FEE REPORT.

Each person appointed by a judge in the Civil Trial Division to a position for which any type of fee may be paid shall file the designated uniform report before any judgment, dismissal, or nonsuit is signed. This report is required for every appointment made whether or not a fee is charged.

15.3 RECORDING AND BROADCASTING OF COURT PROCEEDINGS.

Recording or broadcasting court proceedings in the Civil Trial Division is governed by uniform rules adopted by the judges of the Civil Trial Division.

Rule 16.  MEETINGS.

The judges of the Civil Trial Division shall meet regularly on the first Tuesday of each month from 12:15 until 1:15 p.m. The Administrative Judge of the Civil Trial Division may call a special meeting by written notice distributed at least 72 hours in advance of the meeting. Any special meeting called will state an ending time for the meeting. The judges may vote to reschedule or cancel any monthly meeting. No more than two meetings in any calendar year may be canceled.

Rule 17.  EFFECTIVE DATE.

Effective October 20, 1987; amended 1/22/90; 7/1/90; 8/31/91; 1/3/96; 7/2/97; 4/27/98; 5/26/99; 5/4/04, 4/28/14

HARRIS COUNTY DISTRICT COURT JUDGES (CIVIL)

MAR 10, 2024

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Harris County District Court Local Rules versus Judge’s Court Procedures (2024)
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