189th DISTRICT COURT PROCEDURES

189th COURT POLICIES AND PROCEDURES

If you have a motion not ruled on within a week of your hearing, please call the court’s clerk at 832-927-2325 to find out why the court has not ruled. The court makes every effort to rule on motions no later than 5:00 p.m. the first Friday after the hearing.

Every Monday, except legal holidays, the court conducts its oral and written submission hearings – Law Day. On oral hearings, the court makes its ruling based on (i) the papers filed with the clerk and (ii) oral statements presented to the judge in open court or via zoom. On written submission hearings, the court makes its ruling based on the papers filed with the clerk. The clerk sets all written submission hearings at 8:00 a.m. So the

Last updated and revised 5/5/2022

Updates highlighted in yellow for quick reference.

1. CONTACTING THE COURT

In pending cases, except during ongoing trials, lawyers or self-represented parties may only communicate with the judge by:

setting their matter for oral or written submission hearing, filing with the District Clerk a notice of hearing with relevant documents served on all parties,

presenting oral argument at a properly noticed oral hearing.

1. HEARINGS
   1. SETTING REGULAR HEARINGS – EVERY MONDAY

The court holds two kinds of regular hearings every Monday except on legal holidays – oral and written submission. These hearings may be set by:

emailing the court’s clerk – deandra.mosley@hcdistrictclerk.com calling the court’s clerk –    832-927-2325

scheduling online –               schedule online

1. Oral Hearings – General Practices

Notices of oral hearing must be served at least 3 days before hearing unless modified by other rule. Tex. R. Civ. P. 21(b). For example, motions for summary judgment require at least 21 days notice. Tex. R. Civ. P. 166a(c).

Until further notice, the court is conducting all oral hearings remotely via zoom technology. The court gives details of how the zoom oral hearing process works on its website –

http://www.justex.net/Courts/Civil/CourtSection.aspx?crt=15&sid=1113

Under normal conditions where oral hearings occur in the 189^th courtroom, most motions are set at 9:00 a.m., summary judgments at 10:00 a.m., hearings where evidence is put into the record at 11:00 a.m., minor settlement hearings at 11:30 a.m. and temporary injunctions at 1:30 p.m.

However, during COVID-19 conditions, the court reviews its oral hearing settings a week in advance and gives more specific times for each zoom hearing to more efficiently manage the remote hearing docket. The court’s clerk then emails a zoom link with the new time of the remote oral hearing. So keep an eye out for the zoom link and the changed time of the hearing. Please make sure your opponent is aware of the time change and the zoom link.

If for some reason a witness or lawyer cannot appear via zoom, the court can conduct the hearing telephonically using the court’s teleconference line. Please contact the court’s clerk to have the hearing set telephonically as opposed to zoom.

• Oral Hearings – Temporary Injunctions

Until further notice, the court conducts temporary Injunction hearings remotely. Before the hearing, parties shall exchange witness and exhibit lists and be prepared to discuss the anticipated length of the hearing, number of witnesses, which exhibits shall be admitted without objection and which exhibits shall need court rulings. The court will make all evidentiary rulings before the hearing if possible. Where predicates are needed or other testimony need to make an evidentiary ruling, the court will make evidentiary rulings during the course of the hearing.

Please call the court’s clerk before your scheduled Temporary Injunction hearing and advise how long the hearing is anticipated to take. Temporary Injunctions are automatically set on Mondays at 1:30 p.m. It is imperative the court knows whether or not you are ready to proceed with the hearing, how long the hearing will take and how many witnesses. If it is lengthy – more than two hours – the court may need to reschedule your hearing (depending upon other hearings or trials) and extend the TRO until an available time for the court. Do not bring your witnesses to court or remotely until you have spoken to the court’s clerk.

• Written Submission Hearings – General Practices

Notices of written submission hearings must be served at least 10 days before hearing unless modified by other rule. Local Rule 3.3.3. The court conducts written submission hearings on Mondays at 8:00 a.m.  With a

written submission hearing, the parties do not appear in any courtroom or remotely. Instead, they file their written responses only and the court makes its ruling based exclusively on what the parties file with the court in writing. If a non-moving party wants to have an in court or remote oral hearing on a matter originally set for written submission, then they need to file a request for oral hearing concerning the submission matter. The movant then has the obligation to re-set the matter on the court’s oral hearing docket with proper notice of oral hearing served on the non-moving party. See Section IV. E & F below for special rules concerning default judgment hearings.

• SETTING EMERGENCY OR SPECIAL HEARINGS

If both sides agree to an emergency hearing or the court has authorized a special hearing, call the court’s clerk and set up a remote hearing with the court. If only one side thinks it is an emergency, file a motion for emergency hearing and alert the court’s clerk who will bring it to the court’s attention. In either case, file a notice of hearing to document the file.

If the Monday hearing time is insufficient to properly hear a matter, the court will authorize a special hearing on a Tuesday, Wednesday, Thursday or Friday. Usually these special hearings are follow-up hearings after a Monday hearing where the court realizes the time is insufficient or there is a follow-up issue on the matter. Examples, would be a complex motion for summary judgment or detailed discovery issues.

1. PREFERRED PRACTICES
   1. FILING

Do not file a document with exhibits as a single pdf file. Instead, file the lead document as one pdf and the remaining exhibits as their own pdf as attachments. Each exhibit should be a separate attachment to make it easier to find and read. Unlike the court of appeals, trial courts typically do not read bookmarked electronic documents. Exhibits filed as separate pdfs may be labeled as Exhibit A, Exhibit B, etc. If so inclined to aid in locating the relevant exhibit, one may use short naming conventions such as Exhibit A – photos of car, Exhibit B – contract, Exhibit C – deposition of Fred Jones, etc. Keep things short and easy to read. If you choose to file your document with exhibits as one pdf

file, at least bookmark the file to make it easier to navigate through the document. Be kind to your end reader.

• NAMING PLEADINGS

When filing documents, use the exact name as it appears on the pleading because the name of the pleading appears on the search results or summary page used by the judge, trial coordinator and clerks. To simplify searching, please limit the title of documents to no more than ten words if reasonably possible unless additional words are necessary. For example, avoid naming conventions such as: “Defendant ABC International Corporation’s Reply to Plaintiff Sally Jane Smith’s First Amended Response to Defendant’s Supplemental Motion for Summary Judgment Regarding Statute of Limitations.”

• LATE ELECTRONIC FILINGS – RESPONSES/REPLIES

The court prepares for its Monday hearings through the week and over the weekend. If parties want the court to read their materials before the Monday hearing, file them before 4:00 p.m. the Friday before the hearing. Then alert the court’s clerk of your Friday filing so the image can be accepted and pushed to the image file before the close of business, 5:00 p.m., Friday. Anything filed after 4:00 p.m. on Friday before the Monday hearing will not make it to the image file until after 8:00 a.m. Monday morning, the day of the oral hearing. As a result, the court may not have time to read the last minute filing before your oral hearing.

• PROPOSED ORDERS

Every motion should have a proposed ORDER. Consider preparing your ORDER before preparing your motion or response. The court prefers ORDERS to be titled “ORDER” to avoid having to make changes to the title. Do not put “[PROPOSED]” in the title of the ORDER. Otherwise, the court will have to take time to strikeout “[PROPOSED].” Do not put a date when the motion was heard or when it was signed. The court signs everything electronically. Therefore, the system automatically inserts the date the ORDER is signed. All that is necessary is a signature line with “Presiding Judge” underneath.

• NO COURTESY PAPER COPIES

The 189^TH District Court is 100% paperless. Therefore, courtesy paper copies are not wanted. If a document is large and counsel or a party believes it would be easier for the court to read a properly bookmarked pdf from a thumb drive, counsel may deliver a thumb drive to the court clerk on the 12^th Floor provided an identical bookmarked electronic copy is served on opposing counsel or provide a dropbox link to the court’s clerk with service to counsel. However, providing a bookmarked copy is not required or expected.

1. MOTIONS
   1. AGREED MOTIONS AND NON-SUITS

Agreed motions and non-suits do not have to be placed on the court’s hearing docket. Put “AGREED” or “UNOPPOSED” in the motion title and ORDER (preferably the first word to alert the clerk) and file with the clerk for consideration. The court will accept counsel’s representation that the motion is agreed or unopposed, but prefers all agreeing parties sign the proposed ORDER. Non-suits do not have to be agreed. Non-suits are presumed to be without prejudice unless stated otherwise. Though not technically required by the rules, please file a nonsuit ORDER which acknowledges the nonsuit and then dismisses the case. Here are example nonsuit orders –

Order – Nonsuit With Prejudice Order – Nonsuit Without Prejudice.

If an agreed motion is denied without a hearing, one may request an oral hearing for reconsideration of the motion.

• CONTINUANCES

The court expects counsel as officers of the court to be ready for trial so the court’s docket does not fall apart because of last minute continuances. To that end, continuances should be filed at least 30 days in advance of the two week trial setting. Continuances on cases with three year old cause#s (and older) will not be granted absent extra-ordinary circumstances. For example, in 2022, 2018 cases and before would require extra-ordinary circumstances.

THE 189^TH IS TRYING CASES – BE READY

Since October of 2020, the 189^th has been trying cases during COVID conditions consistent with Supreme Court of Texas ORDERS and approval of the Office of Court Administration. State and county health officials have approved the protocols. The court staff including the judge have been vaccinated. The court encourages counsel, parties and witnesses to get vaccinated too, but vaccination is not a condition of trying cases.

Please be aware there is a high probability of your case being reached. Be ready. Complete your mediation as agreed or ordered, supplement your discovery, take what depositions you need to try the case, share and file witness lists, exhibit lists, motions in limine, jury charge and otherwise do what is necessary to be ready to try your case.

Motions for continuance must be verified, represent whether the client consents to the continuance, the preferred new trial date and whether the parties desire a new docket control/scheduling order. Joint motions may be granted in due course, but are not automatically granted especially when multiple motions have been filed with little work done between settings to get the case ready for trial or when filed after being called to trial. The more detail in the motion, the better the chance for granting. If lack of mediation is one of the grounds for the continuance, then the parties need to file an agreed order to mediate the case naming the mediator and date of mediation.

If the parties want a new SCHEDULING AND DOCKET CONTROL ORDER, they may put this directive in their proposed ORDER and the trial coordinator will issue a new ORDER. Be aware, the system auto populates the dates based on the new trial setting. So, if the parties want to pick their own scheduling dates, they may present their own ORDER. Here is the form used by the trial coordinator – SCHEDULING AND DOCKET CONTROL ORDER.

• SUBSTITUTED SERVICE

Motion. All motions for substituted service under Tex. R. Civ. P. 106 must be accompanied by an affidavit that includes at least four (4) attempts and the following information:

Steps taken to verify defendant lives or works at the subject address; Each of the four or more attempts at service with date and time;

Identification of cars in the driveway and who owns them or other indications defendant resides or works at the subject address.

Substituted service motions do not require a hearing. The court’s clerk will put the motion and order on the court’s judge ready list for review and signing. If the record does not demonstrate the substituted service address is a good address, plaintiff must move to have defendant served by publication and have an attorney ad litem appointed. It is in plaintiff’s interest to perform a diligent search for defendant in hopes of avoiding service by publication.

Order. The court has a preferred form ORDER on its webpage – Substitued Service – Preferred Order. However, ORDERS which substantially comply with the court’s preferred ORDER may be used. The preferred ORDER requires amongst other things additional service via regular mail and CMRRR and limits the time frame for substituted service to within 45 days of the signing of the substituted service ORDER.

• DISCOVERY

Certificate of Conference is required for all discovery motions whether set for oral hearing or submission. Always confer before filing any motion related to discovery. Be sure to attach a copy of the discovery response at issue or state verbatim the request and answer in the body of your motion. Proposed orders should list each discovery issue separately with room to rule on objections and modify the request. Several examples are posted on the court’s website under “Forms – DISCOVERY – ORDER – Compel – Table 1 or Table 2.” Counsel may email their proposed table ORDER to the Trial Coordinator to make it easier for the court to use in its rulings. Counsel are encouraged to answer discovery subject to any objections that need to be made. Objections have a tendency to give rise to suspicions about what is being withheld. So please confer, consider withdrawing unnecessary objections, let your opposition do their due diligence, make full disclosures. Reciprocal full disclosures build trust between parties and counsel. This trust is the foundation of reasonable dispute resolution. Remember: the rules of discovery are minimum standards of compliance. There is nothing preventing parties from voluntarily sharing information to enable each side to fairly evaluate their positions.

• DEFAULT JUDGMENTS

Unless a hearing is necessary to prove-up damages, default judgment motions should be set on the written submission docket. Notice to the non-movant is required. If it appears defendant was served at an old address (for example, the CMRRR and regular mail were returned as undeliverable), then plaintiff must perform a skip trace on defendant, file the results of the skip trace, make a reasonable effort to serve defendant at the newly found address and demonstrate defendant has been given fair notice of the suit and hearing.

the rules.

• DEFAULT JUDGMENTS – EXPEDITED FORECLOSURES

Plaintiff must make a reasonable effort to serve defendant at a good address. If it appears defendant was served at an old address (for example, the CMRRR and regular mail were returned as undeliverable), then plaintiff must perform a skip trace on defendant, file the results of the skip trace, make a reasonable effort to serve defendant at the newly found address. Service on abandoned property is insufficient to perfect service. In cases where it appears the property has been abandoned, plaintiff must seek service by publication and appointment of an Attorney Ad litem.

• SPECIAL EXCEPTIONS

Attach as an exhibit a copy of the pleading or quote the paragraph excepted to unless only excepting to the amount of damages sought. Proposed orders should list each exception separately giving an option for sustaining or overruling the exception.

• SEVERANCES

An ORDER of severance must include the following:

1. New cause number derived by adding “-A” to the original,

e.g. “2020-32041-A”

• Case style
  • Parties to be included in the severed case
  • Documents to be included in the severed case

• Whether or not the severed case is resolved, abated or shall remain active
  • Party paying the cost of severance.

1. SUBSTITUTION OF COUNSEL

All motions to substitute counsel must strictly comply with TEX. R. CIV. P. 10. As to substitution with client’s consent and no party objections, file the motion/order and alert the court’s clerk of your filing. The court will sign the order in due course without oral or submission hearing. The substitution ORDER should have the complete signature block of the new lawyers in the body of the ORDER and designate the attorney in charge if more than one attorney is listed. Tex. R. Civ. P. 8.

As to substitution without client’s consent or objection, the matter should be set for hearing.

• WITHDRAWAL OF COUNSEL

All motions to withdraw must strictly comply with TEX. R. CIV. P. 10. As to withdrawal with client’s consent (as evidenced by the client’s signature) file the motion/order and alert the court’s clerk to your filing. The court will sign the motion in due course without a hearing.

In all motions to withdraw whether consented to by client or not, the attorney who is withdrawing must provide the client’s last known address, phone number and email, if any, and put this information in the proposed ORDER. Don’t make the clerk go hunt down the motion to get the necessary information.

As to withdrawal without the client’s consent, the matter should be set for hearing. If the attorney is asserting a contingent attorney fee lien, the attorney shall file within 30 days of the motion, a petition in intervention seeking the claimed contingency fee lien. Otherwise, the court will presume the attorney is forfeiting any contingency fee claims concerning the matter and will so ORDER all contingency fee claims forfeited. The withdrawing attorney shall provide the original or a copy of the client’s file at no cost to the client, along with a true and correct copy of the ORDER authorizing withdrawal. The copy may be an electronic file provided on thumb drive, c.d. or other storage medium the client can use and read. The withdrawing attorney shall advise the client in writing

contemporaneously with the motion whether or not the attorney is making a claim for attorney fees or expenses.

Motions for withdrawal shall use the court’s preferred ORDER found here: Order – Motion to Withdraw.

• ADMISSION PRO HAC VICE – TEXAS

To be admitted into a Texas state court pro hac vice, counsel must comply with: Texas Board of Law Examiners, Rule 19 and

TEX. GOV. CODE § 82.0361 and

File motions and proposed ORDER with desired Texas court of admis

Helpful links:

Texas Board of Law Examiners – Homepage Texas Board of Law Examiners – Rules

Non-Resident Attorney Fee Information Application – pro hac vice

• APPOINTMENT OF GUARDIAN AD LITEM

The court’s guardian ad litem appointment policies are more specifically set out on the court’s website here: Guardian/Attorney Ad litem, Mediator and Other Appointments. Please read these policies before filing your GAL motion.

Here is the preferred ORDER to be used with the GAL motion: Order – Appointing GAL.

Before the court will appoint a guardian ad litem, the court requires one or more of the parties to present to the clerk of the court via email the court’s Guardian Ad-litem Questionnaire. The questionnaire should not be filed in the clerk’s public record to maintain confidentiality. Instead, after completing, email it to the court’s clerk with “cc” to opposing counsel. The clerk will provide the completed questionnaire to the court for consideration. Thereafter, the court will appoint a guardian ad litem (GAL).

Ideally, the parties will file the questionnaire contemporaneously with the motion to appoint the GAL. But in no event shall the questionnaire be presented any later than 30 days from the filing of the GAL motion.

Eventually, the court will need details as to amounts. But the court does not want lien resolution or other issues to delay presentment of the questionnaire and thereby delay the appointment of the GAL. Most importantly, the court needs to know the gross settlement amount, whether there will be an investment other than deposit into the registry of the court and whether a bilingual GAL is needed. These are enough to make the appointment. Please make every effort to get the questionnaire to the court’s clerk in a timely manner.

• FORMS

The court is regularly adding to its form list on its website. Parties are encouraged to check the court’s website at www.justex.net to see if the court has a form related to a particular motion or request.

• TRIALS
  • DOCKET CALL/TRIAL ORDER

Unless preferentially set, the court generally tries cases in cause# order from oldest to newest on the docket. Please click the following link to check where your case is on the court’s two week trial docket using the first Monday date of the two week setting: Trial Docket Inquiry. The court does not conduct an in court docket call. The trial coordinator will email and call counsel advising the case has been assigned to trial with the date of pre-trial conference and jury selection. All cases are automatically set for trial after the answer of a defendant. Once set for trial, the court will presume the parties are ready for trial unless they file a motion for continuance. See Section IV. B above for continuance policies and practices. If not reached in a setting, most cases are reset within two to four months.

• PREFERENTIAL SETTINGS

The court will set matters preferentially. To obtain a preferential setting by agreement, contact the court’s trial coordinator via email or phone – Arionne_McNeal@Justex.net 832-927-2346 – to get available dates.  File the

agreed motion for preferential setting and set it for oral hearing. The court will consider the preferential setting at oral hearing.

• PRE-TRIAL EXCHANGE BETWEEN PARTIES

Motions in limine, witness lists, exhibit lists, marked exhibits, deposition cuts (line and page), deposition objections, proposed jury charge and any other pre- trial documents must be exchanged between parties one week before trial. This can be extended by agreement. The court will read all pre-trial filings before the pre-trial conference. The sooner pre-trial materials are filed the better. Please provide a USB of the exhibits in pdf format for the court reporter. Please provide a paper copy of the exhibits for the jury during deliberations. If the parties have video evidence to show a jury, the video can be admitted into evidence. The court has computers that enable the jury to review any video evidence introduced at trial. However, counsel is responsible for making sure court computers are available. If not, counsel must provide the computer the jury uses to view computer evidence.

During COVID-19, the court allows use of the elmo, but asks lawyers to present a master notebook of exhibits for the court reporter and which will go back to the jury room. Then counsel should work off of their separate trial copies to avoid counsel touching the same exhibits over and over.

• PRE-TRIAL CONFERENCE

When called to trial, the court will schedule a pretrial conference where parties should be prepared to discuss and be informed of:

1. Logistics. Days of testimony excluding jury selection; number of witnesses; number of witnesses appearing remotely via zoom; number of lawyers and parties who will be at counsel table throughout the trial, size of jury panel needed. The court is limited to having 48 people in its courtroom at any one time which includes the jury, judge, court staff, lawyers, parties and witness. If the total needed in the courtroom is greater than 48, special request must be made for the ceremonial courtroom well in advance. This number may change depending upon COVID-19 alert levels.

• Voir Dire, Opening, Closing. How much time wanted.

• Motions in Limine. Share and advise which need rulings and which are agreed.

• Pre-admission of Exhibits. Share and advise which need rulings and which are agreed.

• Deposition cuts. File objections to cuts with transcript and the court will make rulings. The court can read electronic depositions. Email those electronic files to the court’s trial coordinator or send a dropbox link.

• Whether Court Reporter is Required for Jury Selection. The court prefers to not have its court reporter present if not necessary to minimize the number of people in the courtroom. But if a court reporter is desired, ask at pre-trial conference.

• Shuffle. Once a panel is assigned to the 189^th, the court’s clerk will share the panel list. Lawyers will have 10 minutes to decide if they want a shuffle. Only one shuffle is allowed regardless of who requests it. Tex. R. Civ. P. 223 (“There shall be only one shuffle and drawing by the trial judge in each case.”) After the shuffle, the panel will be brought into the courtroom. This method avoids moving the panel in, then moving them out to shuffle, then moving back in. The goal is to keep human movement as simple as possible and maintain all safety protocols.

• Alternate. During COVID-19, the court will use one alternate per week of trial up to a maximum of four alternates unless parties agree to accept a jury verdict of 10 or 11. In addition to the six peremptory challenges per side, if one or two alternates are chosen, each side will be allowed one additional strike. If three or four alternates are chosen, each side will be allowed two additional strikes. The first six peremptory challenges per side, may only be used in the first 24 available jurors.  The alternate

peremptory challenges may only be used after the first 24 available jurors. For example, if one alternate is chosen, the alternate preemptory strikes can only be used against the 25^th, 26^th or 27^th next available jurors. The formula for calculating the alternate strike zone after the first available 24, is adding the total number of alternates to be chosen to the total number of additional strikes. See TEX. GOV’T CODE § 62.020(e). Th

alternate strikes based on double striking.

1. Mask and Shield. Everyone may appear with only a mask. Shields may be used in lieu of a mask as long as the person is sitting or standing and not moving around. For example, sitting at counsel table or standing at a podium while addressing a jury or panel. Counsel, parties and witnesses are expected to provide their own mask and shield. The court encourages having both mask and shield because it gives options. To keep one’s mask from slipping down off the nose, one may get wardrobe tape – double sided tape – and insert a small piece in the mask to keep the mask from slipping. When witnesses take the stand, they may take down their mask or shield.

1. COVID Issues. When called to trial, if a party, lawyer, or witness has tested positive for COVID; has been exposed to an individual that has tested positive for COVID within 14 days; or is experiencing COVID symptoms, the court will gather additional information and offer remote options. The court has tried cases where all witnesses appeared remotely and only the lawyers appeared in the courtroom. If safe alternatives are not acceptable, the court will consider postponing the trial until the COVID issues are resolved.

Lawyers and parties are strongly urged to following safe practices to avoid possibly mis-trying the case because of COVID exposures during trial. Should these problems arise, the court will address these issues on a case by case basis.

Once COVID-19 restrictions are lifted, the above instructions may be modified as needed.

• CHALLENGE TO EXPERTS

The parties are expected to comply with the Scheduling Order controlling challenges to expert witnesses. Do not wait until the first day of trial as your challenges will likely have been waived as untimely.

• JURY CHARGE

Except in routine automobile cases, in addition to filing a proposed jury change, please provide the judge with a proposed jury charge in word format by emailing the trial coordinator at arionne_mcneal@justex.net at least one day before trial. Carbon copy opposing counsel on all emails.

• VOIR DIRE

Time for voir dire depends on the complexity of the case. After the general voir dire, individual jurors can be questioned at the bench for cause. Do not bring a jury questionnaire to the first day of trial. Discuss this with the court at an earlier hearing. Counsel may ask a panel if anyone has or had a job of processing claims.

• FEEDING THE JURY

Harris County has now started to buy boxed lunches for juries during trial, not voir dire, but trial.

1. INCREASING JURY PAY

For trials lasting five days or more, the court encourages the parties to voluntarily increase jury pay by $60 a day for a total of $100 a day. If agreed, the court will sign an ORDER directing how the funds are to be paid before trial.

• BATSON CHALLENGES

After the parties make their strikes and the court rules on all motions for cause, the court will announce to the lawyers the proposed panel and entertain any Batson motions before the court calls the jury chosen to hear evidence. After ruling on any Batson motions, the court will call out the jurors selected, swear them in and then release the larger panel not chosen.

For more information about the 189th Civil Court Follow the link below: