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Standards of Review in Texas St. Mary's Law Journal Volume 50 Number 4 Article 4 11-2019 Standards of Review in Texas W. Wendell Hall Norton Rose Fulbright US LLP Ryan G. Anderson Law Offices of Ryan G. Anderson, PLLC Follow this and additional works at: https://commons.stmarytx.edu/thestmaryslawjournal Part of the Courts Commons, Criminal Procedure Commons, Evidence Commons, Judges Commons, Jurisdiction Commons, Jurisprudence Commons, Legal Education Commons, Legal Profession Commons, Legal Remedies Commons, and the State and Local Government Law Commons Recommended Citation W. W. Hall & Ryan G. Anderson, Standards of Review in Texas, 50 ST. MARY'S L.J. 1099 (2019). Available at: https://commons.stmarytx.edu/thestmaryslawjournal/vol50/iss4/4 This Article is brought to you for free and open access by the St. Mary's Law Journals at Digital Commons at St. Mary's University. It has been accepted for inclusion in St. Mary's Law Journal by an authorized editor of Digital Commons at St. Mary's University. For more information, please contact [email protected]. Hall and Anderson: Standards of Review in Texas ARTICLE STANDARDS OF REVIEW IN TEXAS W. WENDELL HALL* RYAN G. ANDERSON** I. Introduction ......................................................................................... 1104 A. Standards of Review Generally .................................................. 1105 B. Distinguishing the Standard of Review from the Scope of Review ...................................................................................... 1109 C. Typical Standards of Review in Texas ...................................... 1109 II. Abuse of Discretion ............................................................................ 1110 A. Abuse of Discretion Generally .................................................. 1110 B. Abuse of Discretion in Texas .................................................... 1112 C. Texas Mandamus Proceedings ................................................... 1115 1. “Clear” Abuse of Discretion ............................................... 1117 2. Adequate Remedy at Law .................................................... 1118 D. The Sliding Scale of Abuse of Discretion ................................ 1122 III. Sufficiency of the Evidence ............................................................... 1123 A. Sufficiency of the Evidence in Jury Trials ................................ 1124 1. Legal Insufficiency ................................................................ 1125 a. City of Keller v. Wilson ....................................................... 1125 * W. Wendell Hall—Retired Partner, Norton Rose Fulbright US LLP.; Board Certified in Civil Appellate Law by the Texas Board of Legal Specialization; B.A., The University of Texas at Austin; J.D., St. Mary’s University School of Law. ** Ryan G. Anderson—Law Offices of Ryan G. Anderson, PLLC; Board Certified in Civil Appellate Law by the Texas Board of Legal Specialization; B.A., Rice University; J.D., The University of Texas at Austin. 1099 Published by Digital Commons at St. Mary's University, 2019 1 St. Mary's Law Journal, Vol. 50 [2019], No. 4, Art. 4 1100 ST. MARY’S LAW JOURNAL [Vol. 50:1099 i. Types of Evidence that Cannot Be Disregarded ............................................................. 1126 ii. Types of Evidence that Must Be Disregarded ... 1130 iii. The Reasonable Verdict Standard ........................ 1131 2. Factual Insufficiency ............................................................ 1133 a. Insufficient Evidence ..................................................... 1134 b. Great Weight and Preponderance ............................... 1135 3. The Development of the Legal and Factual Sufficiency Standards ........................................................... 1136 a. An Overview of the Constitutional Conflict Between the Right to Trial by Jury and the Court of Appeals’ Jurisdiction over Issues of Fact ............... 1136 b. Applications of City of Keller .......................................... 1142 B. Sufficiency of the Evidence in Nonjury Trials ........................ 1156 1. Findings of Fact Filed .......................................................... 1157 a. With Reporter’s Record ................................................. 1157 b. Without Reporter’s Record ........................................... 1158 2. Findings of Fact Not Requested and Not Filed .............. 1158 a. With Reporter’s Record ................................................. 1158 b. Without Reporter’s Record ........................................... 1159 3. Findings of Fact Properly Requested but Not Filed ....... 1160 a. With Reporter’s Record ................................................. 1160 b. Without Reporter’s Record ........................................... 1161 4. Mixed Questions of Law and Fact ..................................... 1162 C. Other Evidentiary Standards ...................................................... 1163 1. Clear and Convincing Evidence ......................................... 1163 2. Administrative Agency Rulings .......................................... 1165 a. Pure Trial De Novo ....................................................... 1166 b. Pure Substantial Evidence ............................................. 1167 c. Substantial Evidence De Novo .................................... 1170 IV. Pretrial Rulings .................................................................................... 1171 A. Abatement ..................................................................................... 1171 B. Arbitration ..................................................................................... 1173 1. Motion to Compel Arbitration ........................................... 1173 a. Texas Arbitration Act .................................................... 1173 https://commons.stmarytx.edu/thestmaryslawjournal/vol50/iss4/4 2 Hall and Anderson: Standards of Review in Texas 2019] STANDARDS OF REVIEW IN TEXAS 1101 b. Federal Arbitration Act ................................................. 1174 2. Motion to Confirm or Vacate an Arbitration Award ...... 1176 C. Class Action Certification ........................................................... 1178 D. Consolidation ............................................................................... 1180 E. Continuance .................................................................................. 1181 F. Default Judgment ......................................................................... 1182 1. Proper Default Judgment .................................................... 1183 2. Defective Default Judgment ............................................... 1185 G. Discovery Rulings ........................................................................ 1186 1. Withdrawing Deemed Admissions .................................... 1189 2. Amending Admissions ......................................................... 1191 3. Supplementing Discovery Responses ................................ 1192 a. Fact Witnesses ................................................................ 1193 b. Expert Witnesses ............................................................ 1195 c. Rebuttal Witnesses ......................................................... 1196 4. Quashing Depositions.......................................................... 1197 H. Dismissal ....................................................................................... 1198 1. Dismissal for Defect of Parties ........................................... 1198 2. Dismissal for Defect in Pleadings ...................................... 1198 3. Dismissal for Want of Prosecution .................................... 1199 4. Dismissal of Health Care Liability Claims for Lack of Expert Reports ................................................................ 1201 5. Dismissal of In Forma Pauperis and Inmate Proceedings . 1204 I. Disqualification of Counsel ........................................................ 1206 J. Disqualification of Judges ........................................................... 1207 1. Disqualification and Recusal ............................................... 1207 2. Objection to Visiting Trial Judge ....................................... 1209 K. Docket Management ................................................................... 1209 L. Forum Non Conveniens ............................................................. 1211 M. Gag Orders ................................................................................... 1212 N. Injunctive Relief ........................................................................... 1213 O. Joinder ........................................................................................... 1216 P. Judicial Notice .............................................................................. 1217 Q. Jury Demand ................................................................................. 1219 R. Personal Jurisdiction .................................................................... 1220 Published by Digital Commons at St. Mary's University, 2019 3 St. Mary's Law Journal, Vol. 50 [2019], No. 4, Art. 4 1102 ST. MARY’S LAW JOURNAL [Vol. 50:1099 S. Pleadings ........................................................................................ 1223 1. Special Exceptions ................................................................ 1223 2. Interpleader ............................................................................ 1225
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