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Comments to Proposed Rule 155 505


April 10, 2013                                                            Bulletin 2013-No. 02




The State Office of Administrative Hearings (SOAH) has proposed amendments to Summary Disposition rule 155.505. The rule was published in the Texas Register on March 14, 2013, and the earliest possible date of adoption is April 14, 2013. John D. Pringle has commented on the proposed amendments by letter.


A portion of the comments from page 3 of the letter are set out below:


A Movant’s pleadings are not evidence for the movant.  Elmakiss v. Hughes, No. 12-09-00269-CV, 2010 Tex. App. LEXIS 6185 * 6 (Tex. App. Tyler July 30, 2010, pet. denied) citing Ball v. Neel, No. 12-03-00205-CV, 2004 Tex. App. LEXIS 5973, 2004 WL 1475106, at *2 (Tex. App.- Tyler June 30, 2004, no pet.).  As stated in Elmakiss v. Hughes at *5-6:


“Pleadings may contain judicial admissions through which a party pleads himself out of court." [Citing Denson v. Tex. Dep't Crim. Justice--Institutional Div., No. 12-02-00099-CV, 2003 Tex. App. LEXIS 10957, 2003 WL 21254862, at *3 (Tex. App.--Tyler May 30, 2003, no pet.)]  Summary judgment is proper when the plaintiff pleads facts that affirmatively negate his cause of action. Id. Similarly, if the pleading deficiency is of the type that cannot be cured by an amendment, a special exception is unnecessary and a summary judgment based on the pleading's failure to state a legal claim is appropriate. Id. When a party's pleadings contain statements admitting facts or conclusions directly contrary to the party's theory of recovery or defense, the pleadings may constitute summary judgment proof for the opposing party.



To see the entire letter click here




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