Standards of Review in Texas

St. Mary's Law Journal Volume 50 Number 4 Article 4 11-2019 Standards of Review in Texas W. Wendell Hall Norton Rose Fulbright US LLP Ryan G. Anderson Law Offices of Ryan G. Anderson, PLLC Follow this and additional works at: https://commons.stmarytx.edu/thestmaryslawjournal Part of the Courts Commons, Criminal Procedure Commons, Evidence Commons, Judges Commons, Jurisdiction Commons, Jurisprudence Commons, Legal Education Commons, Legal Profession Commons, Legal Remedies Commons, and the State and Local Government Law Commons Recommended Citation W. W. Hall & Ryan G. Anderson, Standards of Review in Texas, 50 ST. MARY'S L.J. 1099 (2019). Available at: https://commons.stmarytx.edu/thestmaryslawjournal/vol50/iss4/4 This Article is brought to you for free and open access by the St. Mary's Law Journals at Digital Commons at St. Mary's University. It has been accepted for inclusion in St. Mary's Law Journal by an authorized editor of Digital Commons at St. Mary's University. For more information, please contact [email protected]. Hall and Anderson: Standards of Review in Texas ARTICLE STANDARDS OF REVIEW IN TEXAS W. WENDELL HALL* RYAN G. ANDERSON** I. Introduction . 1104 A. Standards of Review Generally . 1105 B. Distinguishing the Standard of Review from the Scope of Review . 1109 C. Typical Standards of Review in Texas . 1109 II. Abuse of Discretion . 1110 A. Abuse of Discretion Generally . 1110 B. Abuse of Discretion in Texas . 1112 C. Texas Mandamus Proceedings . 1115 1. “Clear” Abuse of Discretion . 1117 2. Adequate Remedy at Law . 1118 D. The Sliding Scale of Abuse of Discretion . 1122 III. Sufficiency of the Evidence . 1123 A. Sufficiency of the Evidence in Jury Trials . 1124 1. Legal Insufficiency . 1125 a. City of Keller v. Wilson . 1125 * W. Wendell Hall—Retired Partner, Norton Rose Fulbright US LLP.; Board Certified in Civil Appellate Law by the Texas Board of Legal Specialization; B.A., The University of Texas at Austin; J.D., St. Mary’s University School of Law. ** Ryan G. Anderson—Law Offices of Ryan G. Anderson, PLLC; Board Certified in Civil Appellate Law by the Texas Board of Legal Specialization; B.A., Rice University; J.D., The University of Texas at Austin. 1099 Published by Digital Commons at St. Mary's University, 2019 1 St. Mary's Law Journal, Vol. 50 [2019], No. 4, Art. 4 1100 ST. MARY’S LAW JOURNAL [Vol. 50:1099 i. Types of Evidence that Cannot Be Disregarded . 1126 ii. Types of Evidence that Must Be Disregarded . 1130 iii. The Reasonable Verdict Standard . 1131 2. Factual Insufficiency . 1133 a. Insufficient Evidence . 1134 b. Great Weight and Preponderance . 1135 3. The Development of the Legal and Factual Sufficiency Standards . 1136 a. An Overview of the Constitutional Conflict Between the Right to Trial by Jury and the Court of Appeals’ Jurisdiction over Issues of Fact . 1136 b. Applications of City of Keller . 1142 B. Sufficiency of the Evidence in Nonjury Trials . 1156 1. Findings of Fact Filed . 1157 a. With Reporter’s Record . 1157 b. Without Reporter’s Record . 1158 2. Findings of Fact Not Requested and Not Filed . 1158 a. With Reporter’s Record . 1158 b. Without Reporter’s Record . 1159 3. Findings of Fact Properly Requested but Not Filed . 1160 a. With Reporter’s Record . 1160 b. Without Reporter’s Record . 1161 4. Mixed Questions of Law and Fact . 1162 C. Other Evidentiary Standards . 1163 1. Clear and Convincing Evidence . 1163 2. Administrative Agency Rulings . 1165 a. Pure Trial De Novo . 1166 b. Pure Substantial Evidence . 1167 c. Substantial Evidence De Novo . 1170 IV. Pretrial Rulings . 1171 A. Abatement . 1171 B. Arbitration . 1173 1. Motion to Compel Arbitration . 1173 a. Texas Arbitration Act . 1173 https://commons.stmarytx.edu/thestmaryslawjournal/vol50/iss4/4 2 Hall and Anderson: Standards of Review in Texas 2019] STANDARDS OF REVIEW IN TEXAS 1101 b. Federal Arbitration Act . 1174 2. Motion to Confirm or Vacate an Arbitration Award . 1176 C. Class Action Certification . 1178 D. Consolidation . 1180 E. Continuance . 1181 F. Default Judgment . 1182 1. Proper Default Judgment . 1183 2. Defective Default Judgment . 1185 G. Discovery Rulings . 1186 1. Withdrawing Deemed Admissions . 1189 2. Amending Admissions . 1191 3. Supplementing Discovery Responses . 1192 a. Fact Witnesses . 1193 b. Expert Witnesses . 1195 c. Rebuttal Witnesses . 1196 4. Quashing Depositions. 1197 H. Dismissal . 1198 1. Dismissal for Defect of Parties . 1198 2. Dismissal for Defect in Pleadings . 1198 3. Dismissal for Want of Prosecution . 1199 4. Dismissal of Health Care Liability Claims for Lack of Expert Reports . 1201 5. Dismissal of In Forma Pauperis and Inmate Proceedings . 1204 I. Disqualification of Counsel . 1206 J. Disqualification of Judges . 1207 1. Disqualification and Recusal . 1207 2. Objection to Visiting Trial Judge . 1209 K. Docket Management . 1209 L. Forum Non Conveniens . 1211 M. Gag Orders . 1212 N. Injunctive Relief . 1213 O. Joinder . 1216 P. Judicial Notice . 1217 Q. Jury Demand . 1219 R. Personal Jurisdiction . 1220 Published by Digital Commons at St. Mary's University, 2019 3 St. Mary's Law Journal, Vol. 50 [2019], No. 4, Art. 4 1102 ST. MARY’S LAW JOURNAL [Vol. 50:1099 S. Pleadings . 1223 1. Special Exceptions . 1223 2. Interpleader . 1225

IN THE SUPREME COURT OF TEXAS AND THE TEXAS COURT OF CRIMINAL APPEALS Supreme Court Misc. Docket No. 18-9025 Court of Criminal Appeals Misc. Docket No. 18-004 ORDER ESTABLISHING JUDICIAL COMMISSION ON MENTAL HEALTH ______________________________________________________________________________ Recognizing that improving the lives of Texans who are affected by mental health issues and are involved in the justice system requires judicial leadership at the highest level, in June 2016 the Supreme Court of Texas directed the Texas Judicial Council to establish a Mental Health Committee. The Court charged the Mental Health Committee with examining best practices in the administration of civil and criminal justice for persons with mental illness. The Mental Health Committee determined that Texas requires additional resources to ensure that: (1) mental health providers and professionals are able to provide timely and complete mental health assessments; (2) community-based mental health services are available to defendants; (3) outpatient treatment services and education services are available to those providing competency restoration services; (4) inpatient mental health facilities other than those operated by the Department of State Health Services are available for purposes of competency restoration; and (5) jail-based competency restoration programs, either state-funded or county-funded or both, are available. The Texas Legislature invests heavily each year in behavioral and mental health systems to address mental illness and associated disorders. Yet the criminal justice system still serves as a default provider of mental health services for many Texans. This impact is most often felt at the local level where jail costs related to mental illness exceed $50 million each year in some counties.

Venue: An Abridged Legal Analysis of Where a Federal Crime May Be Tried Updated December 6, 2018 Congressional Research Service https://crsreports.congress.gov RS22361 Venue: An Abridged Legal Analysis of Where a Federal Crime May Be Tried Summary The United States Constitution assures those charged with a serious federal crime that they will be prosecuted in the state and district in which the crime occurred. A crime occurs in any district in which any of its “conduct” elements are committed. Some offenses are committed entirely within a single district; there they may be tried. Other crimes have elements that have occurred in more than one district. Still other crimes have been committed overseas and so have occurred outside any district. Statutory provisions, court rules, and judicial interpretations implement the Constitution’s requirements and dictate where multi-district crimes or overseas crimes may be tried. Most litigation involves either a question of whether the government’s selection of venue in a multi-district case is proper or whether the court should grant the accused’s request for a change of venue. The government bears the burden of establishing venue by a preponderance of the evidence. The defendant may waive trial in a proper venue either explicitly or by failing to object to prosecution in an improper venue in a timely manner. Section 3237 of Title 18 of the U.S. Code supplies three general rules for venue in multi-district cases. Tax cases may be tried where the taxpayer resides. Mail and interstate commerce offenses may be tried in any district traversed during the course of a particular crime.

Filing # 74015120 E-Filed 06/25/2018 08:48:03 AM IN THE SUPREME COURT OF FLORIDA Case No. SC18-398 Lower Tribunal No(s).: Fourth District Court of Appeals: 4D17-2141 15th Judicial Civil Circuit: 2016 CA 009672 ALISON RAMPERSAD and LINDA J. WHITLOCK, Petitioners, vs. COCO WOOD LAKES ASSOCIATION, INC. Respondent. PETITION FOR DISCRETIONARY REVIEW OF A DECISION OF THE DISTRICT COURT OF APPEAL OF FLORIDA, FOURTH DISTRICT PETITIONERS’ AMENDED BRIEF ON JURISDICTION STRICKENPetitioners Represented Propria Persona Filer: Linda J. Whitlock, pro se RECEIVED, 06/25/2018 08:48:29 AM, Clerk, Supreme Court 14630 Hideaway Lake Lane Delray Beach, Florida 33484 TABLE OF CONTENTS TABLE OF CONTENTS…………………………………………………. i TABLE OF CITATIONS…………………………………………. ii - x PREFACE / INTRODUCTION . 1 JURISDICTIONAL STATEMENT. 5 STATEMENT OF THE CASE AND FACTS . 7 SUMMARY OF THE ARGUMENT . 8 CONCLUSION . 10 CERTIFICATE OF SERVICE . 10 CERTIFICATE OF COMPLIANCE . 10 STRICKEN Case No. SC2018-398 Amended Jurisdictional Brief Page [ i ] TABLE OF CITATIONS AND AUTHORITIES Supreme Court Cases: Board of City Commissioners of Madison City. v. Grice 438

Chap. 8.] REMEDIES FOR WRONGS IN COMMON LAW COURTS. 114 writ of consullation may also be, and is frequently, granted by the court with- out any action brought; when, after a prohibition issued, upon more mature consideration the court are of opinion that the matter suggested is not a good and sufficient ground to stop the proceedings below. Thus careful has the law been, in compelling the inferior courts to do ample and speedy justice; in preventing them from transgressing their due bounds; and in allowing them the undisturbed cognizance of such causes as by right, founded on the usage of the kingdom or act of parliament, do properly belong to their jurisdiction. CHAPTER VIII. OF WRONGS AND THEIR REMEDIES, RESPECTING THE RIGHTS OF PERSONS. THE former chapters of this part of our Commentaries having been employed in describing the several methods of redressing private wrongs, either by the mere act of the parties, or the mere operation of law; and in treating of the nature and several species of courts; together with the cognizance of wrongs or injuries by private or special tribunals, and the public ecclesiastical, military, and maritime jurisdictions of this kingdom; I come now to consider at large, and in a more particular manner, the respective remedies in the public and general courts of common law, for injuries or private wrongs of any denomina- tion whatsoever, not exclusively appropriated to any of the former tribunals. And herein I shall, first, define the several injuries cognizable by the courts of common law, with the respective remedies applicable to each particular injury: and shall, secondly, describe the method of pursuing and obtaining these reme- dies in the several courts.

Nos. 06-1195, 06-1196 IN THE Supreme Court of the United States LAKHDAR BOUMEDIENE, ET AL., Petitioners, v. GEORGE W. BUSH, ET AL., Respondents. KHALED A.F. AL ODAH, ET AL., Petitioners, v. UNITED STATES OF AMERICA, ET AL., Respondents. On Writ of Certiorari to the United States Court of Appeals for the District of Columbia BRIEF OF LEGAL HISTORIANS AS AMICI CURIAE IN SUPPORT OF PETITIONERS Michael J. Wishnie James Oldham Hope R. Metcalf (Counsel of Record) Allard K. Lowenstein St. Thomas More Professor International Human of Law & Legal History Rights Clinic—National Georgetown University Litigation Project Law Center Yale Law School 600 New Jersey Avenue, 127 Wall Street N.W. New Haven, CT 06510 Washington, D.C. 20001 (203) 432-1660 (202) 662-9090 Jonathan Hafetz Brennan Center for Justice at N.Y.U. School of Law 161 Avenue of the Americas, 12th Floor New York, NY 10013 (212) 998-6289 August 2007 Counsel for Amici i TABLE OF CONTENTS TABLE OF AUTHORITIES . ii STATEMENT OF AMICI. 1 SUMMARY OF ARGUMENT . 1 ARGUMENT. 3 I. At Common Law, Habeas Corpus Jurisdiction Followed the Jailer, Not the Detainee, to any Territory Under the De Facto Control of the Crown. 3 1. Habeas writs issued directly by the King’s Bench in Westminster to persons detained outside the realm of England. . 8 2. Habeas writs issued by English law courts located in overseas territories . 12 II. The Writ Provided for Meaningful and Independent Judicial Inquiry Regarding the Factual Basis for Detention, Including Consideration of Additional Evidence. . 16 A. At common law, judicial scrutiny was greatest outside the context of post-criminal convictions. 17 B.

NONPARTISAN ELECTION MATERIAL VOTERS GUIDE LEAGUE OF WOMEN VOTERS OF HOUSTON EDUCATION FUND NOVEMBER 6, 2018 • GENERAL ELECTION • POLLS OPEN 7AM TO 7PM INDEX THINGS VOTERS United States Senator . 5. SHOULD NOW United States Representative . .5 K PHOTO ID IS REQUIRED TO VOTE IN PERSON IN ALL TEXAS ELECTIONS Governor . .13 Those voting in person, whether voting early or on Election Day, will be required to present a photo Lieutenant Governor . .14 identification or an alternative identification allowed by law. Please see page 2 of this Voters Guide for additional information. Attorney General . 14. LWV/TEXAS EDUCATION FUND EARLY VOTING PROVIDES INFORMATION ON Comptroller of Public Accounts . 15. Early voting will begin on Monday, October 22 and end on Friday, November 2. See page 12 of this Voters CANDIDATES FOR U.S. SENATE Guide for locations and times. Any registered Harris County voter may cast an early ballot at any early voting Commissioner of General Land Office . .15 AND STATEWIDE CANDIDATES location in Harris County. Our thanks to our state organization, Commissioner of Agriculture . 16. the League of Women Voters of VOTING BY MAIL Texas, for contacting all opposed Railroad Commissioner . 16. Voters may cast mail ballots if they are at least 65 years old, if they will be out of Harris County during the candidates for U.S. Senator, Supreme Court . .17 Early Voting period and on Election Day, if they are sick or disabled or if they are incarcerated but eligible to Governor, Lieutenant Governor, vote. Mail ballots may be requested by visiting harrisvotes.com or by phoning 713-755-6965.

TEXAS RULES OF APPELLATE PROCEDURE Table of Contents SECTION ONE. (c) Where to File. GENERAL PROVISIONS (d) Order of the Court. Rule 1. Scope of Rules; Local Rules of Courts of Rule 5. Fees in Civil Cases Appeals Rule 6. Representation by Counsel 1.1. Scope. 6.1. Lead Counsel 1.2. Local Rules (a) For Appellant. (a) Promulgation. (b) For a Party Other Than Appellant. (b) Copies. (c) How to Designate. (c) Party's Noncompliance. 6.2. Appearance of Other Attorneys Rule 2. Suspension of Rules 6.3. To Whom Communications Sent Rule 3. Definitions; Uniform Terminology 6.4. Nonrepresentation Notice 3.1. Definitions (a) In General. (b) Appointed Counsel. 3.2. Uniform Terminology in Criminal Cases 6.5. Withdrawal (a) Contents of Motion. Rule 4. Time and Notice Provisions (b) Delivery to Party. (c) If Motion Granted. 4.1. Computing Time (d) Exception for Substitution of (a) In General. Counsel. (b) Clerk's Office Closed or Inaccessible. 6.6. Agreements of Parties or Counsel 4.2. No Notice of Trial Court’s Judgment Rule 7. Substituting Parties in Civil Case (a) Additional Time to File Documents. 7.1. Parties Who Are Not Public Officers (1) In general. (a) Death of a Party. (2) Exception for restricted appeal. (1) Civil Cases. (b) Procedure to Gain Additional Time. (2) Criminal Cases. (c) The Court’s Order. (b) Substitution for Other Reasons. 4.3. Periods Affected by Modified 7.2. Public Officers Judgment in Civil Case (a) Automatic Substitution of Officer. (a) During Plenary-Power Period. (b) Abatement. (b) After Plenary Power Expires.

UNIFORM TRIAL COURT RULES Including Amendments Effective August 1, 2016 (Including Out-of-Cycle Amendments to UTCR 5.100, UTCR Chapter 21 Title, UTCR 21.040, 21.060, 21.070, and 21.100) This document has no copyright and may be reproduced. In the Matter of the Adoption of ) CHIEF JUSTICE ORDER Amendments to the Uniform Trial ) No. 16-019 Court Rules ) ) ADOPTION OF AMENDMENTS TO THE ) UNIFORM TRIAL COURT RULES I HEREBY ORDER, pursuant to ORS 1.002, UTCR 1.030, and UTCR 1.050, the following: 1. The Uniform Trial Court Rules, as amended below, are adopted and are effective August 1, 2016, pursuant to ORS 1.002. 2. All current local rules inconsistent with the Uniform Trial Court Rules as amended will be deemed ineffective on August 1, 2016, pursuant to UTCR 1.030. 3. Local rules that are consistent with the Uniform Trial Court Rules as amended remain in effect and are subject to review as provided under UTCR 1.050. 4. Those local rules that are not amended or repealed and are not disapproved on review under UTCR 1.050 remain in effect until so amended, repealed, or disapproved. Dated this \ 1 Recusation of Federal Judges

Buffalo Law Review Volume 17 Number 3 Article 11 4-1-1968 Recusation of Federal Judges Lester B. Orfield Indiana University Follow this and additional works at: https://digitalcommons.law.buffalo.edu/buffalolawreview Part of the Civil Procedure Commons Recommended Citation Lester B. Orfield, Recusation of Federal Judges, 17 Buff. L. Rev. 799 (1968). Available at: https://digitalcommons.law.buffalo.edu/buffalolawreview/vol17/iss3/11 This Article is brought to you for free and open access by the Law Journals at Digital Commons @ University at Buffalo School of Law. It has been accepted for inclusion in Buffalo Law Review by an authorized editor of Digital Commons @ University at Buffalo School of Law. For more information, please contact [email protected]. RECUSATION OF FEDERAL JUDGES LESTER B. O1m~rLD* CHANGE or VENUE DISTINGUISHE RECUSATION refers to disqualification of a judge and is to be sharply dis- tinguished from change of venue which as to criminal cases is governed by Rules 20 through 22 of the Federal Rules of Criminal Procedure. It is a misuse of terms to say that the venue is changed when the trial is had in the court where the suit was brought and some other than the regular judge is called in to preside on the trial, in the very court in which the record has all the while remained.' DE FACTO JUDGE DISTINGUISHED The actions of a de facto judge, so far as they affect third persons, are not open to question.2 THE CommoN LAW RULE At common law the major causes for disqualification of a judge were "sub- stantial or direct interest in the event of the litigation, or close ties of blood or affinity .

E-FILED 2018 MAR 19 11:53 AM MUSCATINE - CLERK OF DISTRICT COURT IN THE IOWA DISTRICT COURT IN AND FOR MUSCATINE COUNTY LAURIE FREEMAN, SHARON MOCKMORE, BECCY BOYSEL, GARY D. Case No. LACV021232 BOYSEL, LINDA L. GOREHAM, GARY R. GOREHAM, KELCEY BRACKETT, and BOBBIE LYNN WEATHERMAN RULING ON PLAINTIFFS’ Plaintiffs, MOTION FOR CHANGE OF v. VENUE GRAIN PROCESSING CORPORATION, Defendant. On December 15, 2017, Plaintiffs, the Freeman Class, by and through their counsel, filed their Motion for Change of Venue. In brief, Plaintiffs claim that they cannot receive a fair trial in Muscatine County due to pervasive bias against the Freeman Class and undue influence possessed by the Defendant, Grain Processing Corporation (“GPC”). Accordingly, Plaintiffs request that the Court transfer venue for trial pursuant to Iowa Rule of Civil Procedure 1.801(3). GPC filed its Resistance on January 31, 2018, to which Plaintiffs replied on February 12, 2018. The Plaintiffs’ Motion came before the Court for oral argument in a hearing held on February 14, 2018. Plaintiffs were represented by Attorneys James Larew, Sara Siskind, and Scott Entin. GPC was represented by Attorneys Kelsey Knowles, Eric Knoernschild, and John Kuhl. The Court, having considered the written and oral arguments of counsel for both sides, and the applicable law, enters the following ruling on Defendants’ Motion for Change of Venue. 1 E-FILED 2018 MAR 19 11:53 AM MUSCATINE - CLERK OF DISTRICT COURT Factual Background and Proceedings GPC is a large business located in Muscatine County. Along with its parent company, the Kent Corporation, it employs over 1,000 Muscatine residents.1 GPC is a major economic force to the Muscatine area, spending an estimated $1 million per day in local and state economies and reporting more than $1 billion in sales.