Chapter 29-2 Effect of Amendment on Superseded Pleadings

• Jurisdiction: United States

29-2 Effect of Amendment on Superseded Pleadings

An amended pleading, as distinguished from a supplemental pleading, supersedes prior pleadings "[u]nless the [amended pleading] shall be set aside on exceptions" or "unless it be necessary to look to the superseded pleading upon a question of limitation."¹²

The latter exception refers to the relation-back rule set forth in Texas Civil Practice and Remedies Code Section 16.068: "If a filed pleading relates to a cause of action, cross action, counterclaim, or defense that is not subject to a plea of limitation when the pleading is filed, a subsequent amendment or supplement to the pleading that changes the facts or grounds of liability or defense is not subject to a plea of limitation unless the amendment or supplement is wholly based on a new, distinct, or different transaction or occurrence." This relation-back rule allows new theories of liability and defense to be raised for the first time in amended pleadings and avoid a limitations bar if the new theory has some factual overlap with what had been previously pleaded before limitations expired. The fact that the theory of liability changes from tort to contract,¹³ or that the plaintiff intentionally chose not to pursue the second claim in the initial filing,¹⁴ doesn't matter as long as both theories come...