                                     February 01, 1988


Jim   MA-
*TroRNEY       GRNRRAI.



            Honorable  Charles D. Houston             Opinion    No.     JM-849
            District Attorney
            155th Judicial   District                 Re:   Whether     amended   Rule
            One East Main                             45, Texas     Rules    of Civil
            Bellville,  Texas    77418                Procedure,    is applicable   to'
                                                      criminal cases (RQ-1241)

            Dear   Mr.    Houston:

                  You ask if Rule 45,  Texas Rules of Civil                  Procedure,
            as amended by order of the Texas Supreme Court                  of July 15,
            1987, effective  January 1, 1988, is applicable                 to criminal
            cases.   Rule 45 as amended provides:

                         Pleadings    in    the      district      and    county
                     courts shall
                                         . .
                           (a) be bv Detltlon       and ans wer;

                         (b) consist of a       statement    in plain   and
                     concise language of the plaintiff's           cause of
                     action    or     the   defendant's       grounds     of
                     defense.     That an allegation      be   evidentiary
                     or be    of   legal    conclusion     shall    not   be
                     grounds   for    objection   when    fair notice     to
                     the opponent     is given by the allegations         as
                     a whole:

                         (c) contain any other matter which may be
                     required by any law     or rule authorizing   or
                     regulating   any particular  action or defense;

                                                      pi   uaoer    measurina
                                                                        signed
                     by the party or       his    attorney,     and b;   filed
                     with the clerk.

                     All pleadings   shall be ConStNed            so as to do
                     substantial   justice.  (Emphasis           added.)




                                           p.4110
Honorable      Charles    D. Houston          - Page   2    UM-849)



      You  express    the   concern     that  there    should     be
uniformity  in    the size   of paper    used for   pleadings     in
civil and criminal cases, and       your inquiry appears to       be
limited to   section     (d) of    Rule   45.   The   underscored
portion of   that section     was added    by the   1987    supreme
court order.    M    50 Tex. B.J. 850, 852 (1987).

      Section    22.004   of    the Government   Code   (formerly
article 1731a, V.T.C.S.)      sets  forth the authority   of   the
supreme    court   to   promulgate   rules    of procedure.     It
provides,   in pertinent    part, as follows:

                (a) Thee-          court    has   the    fuU
                     na   Dower   in the     l2xwtice     an!4
            proceu      in s               except that    its
            rule may not abridge, enlakge,     or modify the
            substantive   rights of a litigant.

                (b) The   supreme        court
                                            from time to    time
                                             rule or rul=s    of
            civil orocedure,    or   an amendment     or amend-
            ments to    a specific     rule or    rules, to   be
            effective   at  the    time    the   supreme  court
            deems expedient    in the interest of a proper
            administration    of justice.     . . .

                (c) So that   the supreme   court has   full
            Nlemaking   power   in civil   actions,   a Nle
            adopted by   the   supreme court    repeals  all
            conflicting  laws and parts of laws governing

                                                           . . . .

                (d) The rules of    practice   and   procedure
                  vi1 actipLlg shall    be published   in   the
            official reports of the supreme court.          The
            supreme court may adopt the method it         deems
            expedient  for the printing    and   distribution
            of the rules.    (Emphasis added.)

See   also    Tex.   Const.   art.       V,   525.

       The
         Texas Supreme    Court addressed   the   scope of    its
Nlemaking    power  under   article   1731a,    V.T.C.S.     (now
section 22.004 of the Government    Code) in &DD     v. New, 226
S.W.Zd 116 (1950), stating:

                This   court,       in  promulgating     rules         of
            civil    procedure,       was   not   attempting           to
            prescribe    rules      for the   government   of         any
                                                _,



                               p. 4111
Honorable    Charles   D. Houston    - Page   3   W-849)



        procedure   except that pertaining       to judicial
        proceedings.     It was acting under a statute
        which conferred      upon    it the    authority    to
        promulgate   rules of     practice   and    procedure
        in civil actions      only.    The Act     conferring
        upon and    relinquishing     to   this court     full
        rule-making   power, Acts of 46th Legislature,
        1939, page    201,    Vernon's     Civil    Statutes,
        a*.   1731a,    invested     the court    with    full
        rule-making    power     in   'the   practice      and
        procedure   in civil     actions.'    u   the    first
        section of that Act the intent was exnressed


        Acting upon the   authority   of that    statute,
        this court, in Rule 2, defined the scope         of
        the rules   in this   language:    'These    rules
        shall govern the    procedure   in the   justice,
        county, district,    and appellate     courts   of
        the State of Texas in all actions of a civil
        nature,  . . .'

                                              n   of   the
        scowe of   the Rules    of Civil   Procpdure    tQ
        civil actions in     courts. . The  filing of     a
        petition  for the recall of city officials       in
        a home rule city under the powers       conferred
        in the charter of such      city is not a    civil
        action, and is, therefore,     not regulated'   by
        the Rules.    (Emphasis added.)

      It appears that in promulgating       the present Rule      45,
the supreme    court contemplated     the construction       of   the
court 's Nlemaking      power    set  forth     in &~DD    v . New.
Section   (a) provides that     pleading    in the district       and
county court shall "be      by petition and answer."         Article
27.01, Code of    Criminal   Procedure,   states:    "The    primary
pleadings   in a criminal action on the part of the State is
the indictment   or   information.n     Article    27.02, Code     of
Criminal Procedure    sets   forth the defendant's       pleadings,
e.g., motion to set aside indictment,        pleas of guilty, not
guilty, nolo contendere,     application    for probation.

      Rule   45, Texas Rules   of Civil Procedure,    as  amended
by order     of the   Texas Supreme   Court of   July 15,    1987,
effective    January 1, 1988,    is not applicable   to  criminal
cases.




                           p. 4112
Honorable   Charles    D. Houston     - Page    4   (JW849)




                             SUMMARY
           Rule 45, Texas Rules of Civil      Procedure,
        as amended   by order   of the  Texas     Supreme
        Court of July 15, 1987, effective     January   1,
        1988, is not applicable   to criminal   cases.




                                          JIM      WATTOX
                                          Attorney  General   of Texas

MARYKKLLKR
First Assistant   Attorney     General

IOU MCCREARY
Executive  Assistant     Attorney     General

JUDGE ZOLLIE STKAKLKY
Special Assistant  Attorney         General

RICK GILPIN
Chairman,  Opinion     Committee

Prepared by Tom G. Davis
Assistant Attorney General




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