Did Texas Rule of Civil Procedure 45 and its pleading paper-size requirement apply to criminal cases?

Texas AG Opinion JM-849: Civil Rule 45 in Criminal Cases

Plain-English summary

The district attorney for the 155th Judicial District asked whether the 1988 amendment to Texas Rule of Civil Procedure 45 applied to criminal cases. His concern focused on the new requirement concerning the size of paper used for pleadings.

The Attorney General concluded that Rule 45 did not apply to criminal proceedings. Government Code section 22.004 gave the Texas Supreme Court full rulemaking power over practice and procedure in civil actions, not criminal cases.

Nunn v. New had interpreted the predecessor statute the same way. It explained that the Supreme Court's civil rules governed judicial proceedings of a civil nature and did not extend beyond civil actions.

The text of Rule 45 also confirmed that scope. It described pleadings as petitions and answers. By contrast, Code of Criminal Procedure article 27.01 identified indictments and informations as the State's primary criminal pleadings, and article 27.02 listed a defendant's criminal motions and pleas.

The civil rule's paper-size requirement therefore did not govern criminal filings.

Currency note

This opinion was issued in 1988. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Did Rule 45 govern criminal pleadings?

No. The opinion concluded that the Rules of Civil Procedure were limited to civil actions.

Did the answer include Rule 45's paper-size requirement?

Yes. The request focused on that provision, and the opinion said it did not apply to criminal cases.

What gave the Texas Supreme Court procedural rulemaking authority?

Government Code section 22.004 and Texas Constitution article V, section 25, supplied the relevant authority, with section 22.004 framed in terms of civil actions.

How did the criminal statutes define pleadings?

Article 27.01 named the indictment or information as the State's primary pleading, while article 27.02 listed the defendant's motions and pleas.

Why did Nunn v. New matter?

It held that the Supreme Court's procedural rules under the predecessor statute were confined to civil actions.

Background and statutory framework

The Texas Supreme Court amended Rule 45 by order dated July 15, 1987, effective January 1, 1988. The amendment added a paper specification to subsection (d).

Government Code section 22.004 authorized the Supreme Court to adopt and amend civil procedure rules. It allowed those rules to supersede conflicting procedural statutes in civil actions and required publication of rules governing civil practice.

Rule 2 stated that the Rules of Civil Procedure governed actions of a civil nature in Texas justice, county, district, and appellate courts. Nunn relied on that limitation when holding that a home-rule recall petition was not governed by the civil rules.

Rule 45's reference to petitions and answers differed from the Code of Criminal Procedure's express framework for indictments, informations, motions, and pleas. JM-849 relied on both the rulemaking statute and those textual differences.

Citations

Constitutional, statutory, and rule materials:

• Texas Rules of Civil Procedure 2 and 45
• Government Code section 22.004
• Texas Constitution article V, section 25
• Code of Criminal Procedure articles 27.01 and 27.02
• Former V.T.C.S. article 1731a

Case:

• Nunn v. New, 226 S.W.2d 116 (Tex. 1950)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-849
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1988/jm0849.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Obvious character-level OCR errors have been corrected, but minor errors may remain; the linked PDF is authoritative.

February 1, 1988

JIM MATTOX
ATTORNEY GENERAL

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 by petition and answer;

(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;

(d) be in writing, on paper measuring approximately 8-1/2 inches by 11 inches, signed by the party or his attorney, and be filed with the clerk.

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

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. See 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) The supreme court has the full rulemaking power in the practice and procedure in civil actions, except that its rules may not abridge, enlarge, or modify the substantive rights of a litigant.

(b) The supreme court may from time to time promulgate a rule or rules of civil procedure, or an amendment or amendments 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 rulemaking power in civil actions, a rule adopted by the supreme court repeals all conflicting laws and parts of laws governing practice and procedure in civil actions. . . .

(d) The rules of practice and procedure in civil actions 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, § 25.

The Texas Supreme Court addressed the scope of its rulemaking power under article 1731a, V.T.C.S. (now section 22.004 of the Government Code) in Nunn v. New, 226 S.W.2d 116 (1950), stating:

This court, in promulgating rules of civil procedure, was not attempting to prescribe rules for the government of any 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, art. 1731a, invested the court with full rule-making power in 'the practice and procedure in civil actions.' In the first section of that Act the intent was expressed to give the Supreme Court of the State of Texas full rule-making power in civil actions. 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, . . .' This is an express limitation of the scope of the Rules of Civil Procedure to 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 rulemaking power set forth in Nunn 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." 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.

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 MATTOX
Attorney General of Texas

MARY KELLER
First Assistant Attorney General

LOU McCREARY
Executive Assistant Attorney General

JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Tom G. Davis
Assistant Attorney General