Introduction

Just when you finally wrapped your head around the “New Rules,” along come the “New Old Discovery Rules.” Applicable to family law cases filed on or after September 1, 2023, the New Old Rules remove “required” disclosures and production of documents established by the New Rules, reinstating old rule “requests” for disclosure.

Undoubtedly, those who loathe required disclosures will cheer, while others who've grown to love mandatory initial, expert, and family law disclosures will groan. Regardless of your camp, the “New Old Rules” are here, and it's time to learn them!

A Brief History

a. The Old Rules

In 1999, the Texas Rules of Civil Procedure underwent a sweeping amendment that gave birth to TRCP 194. This overhaul of existing Texas discovery practice was implemented via orders issued by the Supreme Court in 1998 in the Supreme Court of Texas Misc. Docket No. 98–9196: Approval of Revisions to the Texas Rules of Civil Procedure. Because the rules became effective on January 1, 1999, they are often called the “1999 rules.” This paper, however, will refer to them as “the Old Rules.”

The 1999 revisions introduced Requests for Disclosures for the first time as a formal discovery tool in Texas civil litigation. Drawing inspiration from Federal Rule of Civil Procedure 26(a) regarding required disclosures, Rule 194 implemented requests for disclosures, obligating parties to reveal specific case information without objection upon receipt of a properly worded “Request for Disclosure.”

At the time, the 1999 rules were lauded as an affordable means to prevent trial by ambush and a much-needed tool to overcome discovery gamesmanship and mitigate what many perceived to be expensive, frustrating, and abusive discovery tactics. Indeed, before the implementation of disclosure rules that eliminated the right to object, discovery was an all-out tactical battle where many practitioners were slow to provide information and all too eager to lodge every objection imaginable to even the most basic discovery request.

b. The New Rules

In 2020, the Texas Supreme Court made significant changes to both TRCP 194 and 195, notably the implementation of “Required Disclosures,” automatically obligating parties in civil suits filed after January 1, 2021, to provide certain information and documents to the other parties without waiting for a discovery request.

The “New Rules,” as they became known, implemented mandatory “initial disclosures,” “expert disclosures,” and “pretrial disclosures” without any requirement to serve a “request.” In family law cases, the “New Rules” required furnishing documentation in divorce and annulment cases, including property deeds, retirement plan statements, insurance policies and statements, and bank statements. In child or spousal support cases, parties were also required to furnish documents regarding health insurance coverage, tax returns, and payroll check stubs.

The New Rules were an attempt by the Supreme Court to further eliminate discovery gamesmanship by requiring parties to exchange basic information automatically without a request. However, it quickly became evident that while exchanging all this information was helpful in many cases, the mandatory exchange was unnecessary and costly for smaller, less complicated family law cases, particularly for litigants who cannot afford an attorney.

Why Are the Rules Changing (Again)?

HB 2850 amended the Family Code to set out statutory discovery procedures applicable to suits arising under the Family Code. As noted, in 2020 the Texas Supreme Court made changes to both Rules 194 and 195, namely the implementation of automatic “Required Disclosures”, obligating parties in civil suits filed after January 1, 2021, to provide certain information and documents without waiting for a request.

Noting that “these changes relating to requests for disclosures and discoveries regarding testifying expert witnesses have placed an unneeded burden on pro se litigants and attorneys, especially in rural areas,” HB 2850 sought to address cost concerns by reversing changes made by the Supreme Court relating to required disclosures and discovery regarding testifying experts.

When the “Old Rules” were adopted in 1999, the Legislature did not fully embrace the Federal Rule approach of requiring all parties to make “initial disclosures.” Instead, the first iteration of disclosures in Texas required a formal “request.” Perhaps the Legislature purposefully chose the “request” versus “required” approach because so many state-court actions settle with little or even no discovery. This is often the case in family law actions, where issues are sometimes minimal, and the parties' budgets are often limited.

A frequent complaint about the “New Rules” of 2021 was that many cases were essentially uncontested with minimal issues to resolve. Many family law cases have no children, no significant assets, and no budget for costly discovery. Rule 11 Agreements to suspend the obligation to exchange mandatory disclosures and produce a long list of documents quickly became standard.  

Introducing Family Code Title 6 and Chapter 301

HB 2850 implemented Family Code Title 6, entitled “Civil Procedure,” and Chapter 301, entitled “Discovery Procedures for Civil Actions.” Chapter 301 applies exclusively to actions brought under the Family Code. All other civil suits are still governed by TRCP 194 (with minor tweaks).

While HB 2850 created TFC Chapter 301, it did not create the Rules of Procedure necessary to implement the new legislation. Accordingly, the Texas Supreme Court immediately began implementing the new law by making revisions and additions to the Rules of Civil Procedure under its rule-making powers outlined in Section 22.004, Texas Government Code.

The provisions of Chapter 301 have now been preliminarily implemented by the Texas Supreme Court's creation of new Texas Rules of Civil Procedure 194a and 195a.  

The new rules essentially track the provisions of Chapter 301, but there are notable “general provisions” that are not part of the preliminarily approved Rules 194a and 195a, including:

• Section 301.001. Applicability of Chapter. This chapter applies only to a civil action brought under this code (in other words, under the Family Code). Such actions include cases filed under Title 1 (The Marriage Relationship), Title 2 (Child in Relation to the Family), Title 4 (Protective Orders), Title 5 (The Parent-Child Relationship & the Suit Affecting the Parent-Child Relationship). All other “civil actions” are not affected by Chapter 301.
• Section 301.002. CONFLICT WITH TEXAS RULES OF CIVIL PROCEDURE. Notwithstanding Section 22.004, Government Code, this chapter may not be modified or repealed by a rule adopted by the Supreme Court (more below).
• Section 301.003. DRAFT EXPERT REPORTS AND DISCLOSURES PROTECTED. A draft expert report or draft disclosure required under this chapter is protected from discovery, regardless of the form in which the draft is recorded (think email discussions between counsel and their experts about creating reports, what to include in the reports, or even mark-ups and multiple revisions to initial report drafts).

The Supreme Court's Role and Limitations on its Rule-making Power

The Texas Supreme Court must “adopt rules to promote the prompt, efficient, and cost-effective resolution of civil actions” [Government Code 22.004(h)]. The court is vested with full rule-making power in the practice and procedure of civil actions, “except that its rules may not abridge, enlarge, or modify the substantive rights of a litigant” [Government Code 22.004(a)].

While the Supreme Court may occasionally revise or promulgate rules of civil procedure that it deems expedient and in the interest of a proper administration of justice, its power to do so is not absolute. Indeed, any rules or amendments adopted by the Supreme Court can and will remain in effect “unless and until disapproved by the legislature” [Government Code 22.004(b)].

Interestingly, Chapter 301 explicitly includes a provision stating it may not be modified or repealed by a rule adopted by the Supreme Court, apparently a direct reaction to the court's adoption of the “New Rules” in 2021.

Clarifying that the Supreme Court has no power under Texas Government Code 22.004 to change or repeal Chapter 301, the new law specifically states, “Notwithstanding Section 22.004, Government Code, this chapter may not be modified or repealed by a rule adopted by the supreme court.” [TFC Section 301.002]. In other words, the Supreme Court cannot adopt rules that conflict with the Texas Family Code.

Significant TRCP Changes for Cases Governed by the Family Code

a. Discovery Period (Level 1 – Divorces Involving $250,000 or Less) [TRCP 190.2(b)(1)(B)].

All discovery must be conducted during the discovery period, which begins when the suit is filed and continues until 180 days after the date the first request for discovery of any kind is served on a party (Compare this to non-Family Code suits, where the discovery period begins when the first initial disclosures are due and continues for 180 days thereafter).

b. Discovery Period (Level 2) [TRCP 190.3(b)(1)(B)].

All discovery must be conducted during the discovery period, which begins when suit is filed and continues until 30 days before the date set for trial (Compare this to non-Family Code suits, where the discovery period begins when the initial disclosures are due and continues until the date set for trial).

c. Forms of Discovery[TRCP 192.1(b)(1)(B)].

Permissible forms of discovery include requests for disclosure versus required disclosures in suits in non-Family Code cases. All other forms of discovery, including interrogatories, production requests, admissions, depositions, etc., remain permissible (Compare this to non-Family Code suits, where required disclosures are still alive and well).

d. Timing of Discovery[TRCP 192.2(a)(2)].

You may now serve discovery with your initial pleading. The once-common practice of including a request for disclosure paragraph in your initial pleading is back (Compare this to non-Family Code cases, where you cannot serve any discovery on another party until after their initial disclosures are due).

e. Content in Certain Suits Under the Family Code[former TRCP 194.2(c)].

The “New Rules” requirement to automatically produce documentation in divorce and SAPCR cases “without awaiting a discovery request” is now gone. Under the “New Old Rules,” you are no longer automatically required to furnish deeds, retirement statements, health insurance statements and policies, bank statements (divorce suits), tax returns, and pay stubs (spousal and child support suits). Of course, you can still seek this information, but you must do so via a Request for Production or subpoena duces tecum.

f. Proceedings Exempt from Initial Disclosure[former TRCP 194.2(d)].

Under the “New Rules,” the Supreme Court specifically exempted certain actions under the Family Code from the requirement to make automatic initial disclosures. For example, the Office of the Attorney General (OAG) was exempted from completing required initial disclosures in a Title IV-D action [former 194.2(d)(4)]. DFPS actions under Subtitle E, Title 5 of the Family Code [former 194.2(d)(5)], and protective order actions under Title 4 of the Family Code [former 194.2(d)(6)] were likewise exempted from mandatory disclosure requirements.

Under the newly revised Rule 194.2(c), these actions have been stricken by the exemption rule. This is consistent with the adoption of Chapter 301, which applies to any civil action brought under the Family Code.

g. Pretrial Disclosures [TRCP 194.4].

Chapter 301 is silent regarding a requirement to make “Pretrial Disclosures” for cases filed under the Family Code after September 1, 2023. The Supreme Court's amendments to Rule 194, demonstrated in redline form shown below, shed light on whether Pretrial Disclosures are still “required disclosures” for family law cases filed after September 1, 2023:

RULE 194. REQUIRED DISCLOSURES

IN SUITS NOT GOVERNED BY THE FAMILY CODE (Redline Form)

Clearly, “required disclosures,” which included “pretrial disclosures,” are no longer required in suits governed by the Family Code. Moreover, there is no “Pretrial Disclosures” requirement contained within the newly enacted TRCP 194a (which is the “New Old Rule” regarding disclosures in cases brought under the Family Code after September 1, 2023). Therefore, it is reasonable to conclude that Pretrial Disclosures are not mandatory in family law cases filed after September 1, 2023.

Introducing TRCP 194a and 195a

To implement the discovery changes enacted by Chapter 301, the Supreme Court has preliminarily promulgated two entirely new Rules of Civil Procedure, Rules 194a and 195a, that pertain exclusively to suits governed by the Family Code for cases filed after September 1, 2023.

IMPORTANT: TRCP 194a and 195a are not published in the 2023-2024 edition of O'Connor's Texas Family Code Plus. Because of this, the full text of Supreme Court Order 23-9052, entitled “Preliminary Approval of Texas Rules of Civil Procedure 194a and 195a and of Amendments to Texas Rules of Civil Procedure 190, 192, 194, 195, 196, 197, and 198”, is attached as Appendix A (also viewable online at: https://www.txcourts.gov/media/1456903/239052.pdf).

TRCP 194a

Newly created Rule 194a., entitled “Requests for Disclosure in Suits Governed by the Family Code,” replaces all prior disclosure rules and controls “requests for disclosures” in suits filed under the Family Code after September 1, 2023. Critical features of 194a include:

194a.1 Request. [TFC Sec. 301.051]

No later than 30 days before the end of any applicable discovery period, a party may obtain disclosure from another party of the information or material described in Rule 194a.2 by serving the other party the following request: “Under Rule 194a, you are requested to disclose, within 30 days of service of this request, the information or material described in Rule [state rule, e.g., 194a.2, or 194a.2(a), (c), and (f), or 194a.2(d)–(g)].”

194a.2 Content. [TFC Sec. 301.052]

A party may “request disclosure” under Rule 194a.1, all of the familiar information that was available by request under the “Old Rule” and mandated for disclosure under the “New Rule.”

Such information includes disclosure of the correct names of the parties, identifying information for potential parties, legal theories and the factual basis for claims and defenses, amount and method of economic damages, identifying information for persons with knowledge of relevant facts, information regarding testifying experts, settlement agreements, witness statements, medical records and authorizations, and identification of any person who may be designated as a responsible third party.

194a.3 Response. [TFC Sec. 301.053]

Written responses to a request for disclosures must be made within 30 days after service of the request, except a defendant served with a request before their answer is due is not required to respond until 50 days after service of the request. Responses to requests regarding testifying experts are governed by Rule 195a.

194a.4 Production of Documents and Tangible Items. [TFC Sec. 301.054]

This is a new provision regarding production of documents in response to a Request for Production. Under this new rule, the responding party must provide copies of documents and tangible items requested with the response unless all the following criteria are met:

(a)  the responsive documents must be “voluminous”;

(b)  the response states a reasonable time and place for production;

(c)  the responding party produces the documents at the time and place stated; and

(d)  the responding party provides a reasonable opportunity to inspect the documents.

194a.5 Work Product Objection Prohibited. [TFC Sec. 301.055]

Assertion of work product privilege or objection on that basis is prohibited regarding a request served under Rule 194a.1.

194a.6 Certain Responses Not Admissible. [TFC Sec. 301.056]

A response to a request under 194a.2(c) [legal theories and factual bases] or (d) [amount and method of calculating economic damages] that has been changed by amended or supplemental response is not admissible and may not be used for impeachment.

TRCP 195a

Newly created Rule 195a., entitled “Discovery Regarding Testifying Experts in Suits Governed by the Family Code,” replaces all prior expert disclosure rules for suits filed under the Family Code after September 1, 2023. Critical features of 195a include:

195a.1 Permissible Discovery Methods. [TFC Sec. 301.101]

A request to designate and disclose information concerning testifying expert witnesses may only be made through a disclosure request served under Rule 194a.1 or a deposition or expert report permitted by this rule.

195a.2 Deadline for Response. [TFC Sec. 301.102]

Unless otherwise ordered by the court, a response for disclosure regarding testifying experts [made under 194a.2(f)] must be made by the later of the following dates:

(a)  30 days after the request is served; or

(b)  either, as applicable:

(1)  with respect to an expert testifying for a party seeking affirmative relief, 90 days before the end of the discovery period; or

(2)  with respect to an expert not described by paragraph (b)(1), 60 days before the end of the discovery period.

195a.3 Deposition Availability. [TFC Sec. 301.103]

(a)  A party seeking affirmative relief must make an expert retained by, employed by, or otherwise under the control of the party available for a deposition in accordance with this rule.

(b)  If a party seeking affirmative relief does not provide a report of the party's expert's factual observations, tests, supporting data, calculations, photographs, and opinions when the party designates the expert, the party must make the expert available for a deposition reasonably promptly after the designation. If the deposition cannot be reasonably concluded more than 15 days before the deadline for designating other experts due to the actions of the party who designated the expert, the court must extend the deadline for other experts testifying on the same subject.

(c) If a party seeking affirmative relief provides a report of the party's expert's factual observations, tests, supporting data, calculations, photographs, and opinions when the party designates the expert, the party is not required to make the expert available for a deposition until reasonably promptly after all other experts have been designated.

(d) A party not seeking affirmative relief must make an expert retained by, employed by, or otherwise under the control of the party available for a deposition reasonably promptly after the party designates the expert and the experts testifying on the same subject for the party seeking affirmative relief have been deposed.

195a.4 Content of Oral Depositions and Court-Ordered Reports. [TFC Sec. 301.104]

In addition to a disclosure request served under Rule 194a.1, a party may obtain discovery by oral deposition and a report prepared in accordance with Rule 195a.5 of:

(a)  the subject matter on which a testifying expert is expected to testify;

(b)  the expert's mental impressions and opinions;

(c)  the facts known to the expert, regardless of when the factual information is acquired, that relate to or form the basis of the expert's mental impressions and opinions; and

(d)  other discoverable items, including documents not produced in response to a disclosure request.

195a.5 Court-Ordered Reports. [TFC Sec. 301.105]

If the discoverable factual observations, tests, supporting data, calculations, photographs, or opinions of an expert are not recorded and reduced to tangible form, the court may order that information be reduced to tangible form and produced in addition to the deposition.

195a.6 Amendment and Supplementation of Discovery. [TFC Sec. 301.106]

A party's duty to amend and supplement written discovery regarding a testifying expert is governed by Rule 193.5. If a party retains, employs, or otherwise controls an expert witness, the party must amend or supplement the expert's deposition testimony or written report only concerning the expert's mental impressions or opinions and the basis for those impressions or opinions.

195a.7 Cost of Expert Witnesses. [TFC Sec. 301.107]

When a party takes the oral deposition of an expert witness retained by an opposing party, the party retaining the expert must pay all reasonable fees charged by the expert for time spent preparing for, giving, reviewing, and correcting the deposition.

195a.8 Expert Communications Protected. [TFC Sec. 301.108]

Communications between a party's attorney and a testifying expert witness in an action subject to this chapter are protected from discovery regardless of the form of the communications, except to the extent that the communications:

(a)  relate to compensation for the expert's study or testimony;

(b)  identify facts or data that the party's attorney provided and that the expert considered in forming the opinions the expert will express; or

(c)  identify assumptions that the party's attorney provided and that the expert relied on in forming the opinions the expert will express.

Conclusion

Our journey began with the introduction of “the Old Rules” in 1999, which brought Requests for Disclosures as a formal discovery tool, aiming to curb discovery gamesmanship and ensure a more transparent litigation process. In 2021, “the New Rules” emerged, ushering in the era of Required Disclosures, mandating parties to share specific information without requiring requests. While this move aimed to eliminate discovery gamesmanship, it raised concerns, particularly in family law cases, where mandatory exchanges seemed unnecessary and costly for many.

Fast forward to 2023, when HB 2850 introduced Chapter 301 and the “New Old Rules.” With this change, the pendulum returns to a request-based approach, potentially reducing the burden on pro se litigants and attorneys, especially in rural areas. These “New Old Rules” bring a more tailored approach to discovery in family law cases, allowing parties to utilize Requests for Disclosures and Requests for Production as needed.

As we navigate shifts in the discovery landscape, it's essential to remember the role of the Texas Supreme Court in procedural rule-making and the limitations imposed by the Legislature. Indeed, preliminary approval of the rules is not set in stone and may evolve based on public comments regarding the preliminary changes. In fact, you can play a role in this developing area by submitting your comments to [email protected] by November 1, 2023.

In conclusion, the family law community must adapt to these changes and embrace the “New Old Rules.” Whether you applaud the return of Requests for Disclosures or miss the simplicity of Required Disclosures, the key to effective advocacy is to stay informed and prepared for whatever rules come our way. It is my sincere hope that this article will help you navigate these changes effectively.

If you have any feedback you'd like to provide, whether positive or negative, please email me at [email protected].