Chapter 29-3 Time Limits for Amendment of Pleadings

• Jurisdiction: United States

29-3 Time Limits for Amendment of Pleadings

The time limits for amendment of pleadings vary depending on which discovery level governs the case.²¹

For an expedited actions case governed by Discovery Level 1,²² any "pleading, amended pleading, or supplemental pleading that removes a suit from the expedited actions process may not be filed without leave of court unless it is filed before the earlier of 30 days after the discovery period is closed or 30 days before the date set for trial. Leave to amend may be granted only if good cause for filing the pleading outweighs any prejudice to an opposing party."²³ Other amended and supplemental pleadings (which do not have the effect of removing the suit from the expedited actions process) continue to be governed by Tex. R. Civ. P. 63, requiring leave of court for any amended pleading offered within seven days of trial.

Discovery Level 2²⁴ makes no explicit provision for amended pleadings, thus Tex. R. Civ. P. 63 applies, requiring leave of court for any amended pleading offered within seven days of trial.²⁵ This means that the last day to file a pleading without leave of court is the Monday preceding a setting for the next Monday.²⁶

For cases governed by Discovery Level 3, the court is required to provide a stated deadline for the amendment or supplementation of pleadings,²⁷ after which leave of court will be required.

Although amended pleadings filed more than seven days before trial (for pleadings governed by Rule 63 rather than by a scheduling order) are still subject to the first requirement of Rule 63 that "an amendment must be made 'at such time as not to operate as a surprise to the opposite party,' a party may file an amended pleading outside seven days of the trial date freely, without leave of court."²⁸ Even if the trial court does not have discretion to deny the filing of an amendment made before the deadline,²⁹ if evidence of surprise or prejudice is provided by an opposing party due to the timing of the amendment, the court does have the power to charge a continuance of the case to the party who has filed the amendment or supplementation, including costs and attorney's fees.³⁰

For cases in which the pleading deadline is set by a scheduling order, the court has the discretion to deny a pleading amendment offered months before trial when it violates the terms of the scheduling order and the opponent provides evidence of surprise or prejudice.³¹

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Notes:

^[21] See Chapter 20.

^[22] See Tex. R. Civ...