Chapter 20-1 The Requirement to Plead Discovery Level

• Jurisdiction: United States

20-1 The Requirement to Plead Discovery Level

Every case filed in a Texas district or county court must be governed by a discovery control plan.¹ "A plaintiff must allege in the first numbered paragraph of the original petition whether discovery is intended to be conducted under Level 1, 2, or 3 of [Rule 190]." Immediately following the preamble paragraph of the Plaintiff's original petition, paragraph number one should state: "plaintiff intends to conduct discovery in this case under Level [1, 2, or 3] of Texas Rule of Civil Procedure 190."

The allegation language is very simple, but the considerations are potentially more complex.

Level 1 is the discovery control plan set forth in Tex. R. Civ. P. 190.2 for a category of small cases, specifically:

"Any suit that is governed by the expedited actions process in Rule 169,"² which essentially means any suit seeking only monetary relief (i.e. seeking no equitable or other non-monetary relief) of $100,000 or less (including damages of any kind, penalties, costs, expenses, prejudgment interest and attorney fees), but not including any suit with a claim governed by the Family Code, the Property Code, the Tax Code, or Chapter 74 of the Civil Practice & Remedies Code.³
"Any suit for divorce not involving children in which a party pleads that the value of the marital estate is more than zero but not more than $50,000," unless the parties agree that Level 2 should apply or the court orders a Level 3 discovery control plan.⁴

Note that changes are upcoming due to the passage of Texas Senate Bill 2342 and its requirement that the Supreme Court of Texas adopt expedited rules "to promote the prompt, efficient, and cost-effective resolution of civil actions."⁵ Effective September 1, 2020, the Supreme Court of Texas shall adopt rules to promote the prompt, efficient, and cost-effective resolution of civil actions filed in county courts at law in which the amount in controversy does not exceed $250,000.⁶

Level 2 is the default discovery control plan set forth in Tex. R. Civ. P. 190.3 to govern all other cases unless a party requests the court to customize a Level 3 discovery control plan (or the court decides to do so on its own motion).⁷

Level 3 is the customizable discovery control plan tailored to fit the circumstances of a particular case.⁸ Although many cases ultimately are controlled by Level 3, there is a potential advantage for plaintiffs who initially plead into a Level 2 discovery control plan, as explained in...