Hello everyone. I wanted to introduce myself just a bit and then jump to my question.

I have been a felony prosecutor for several years, but have NO civil experience. About a month ago, I moved from the DA's office to the CA's office to take over CPS court. Yes, I have been told I am insane for actually WANTING to do CPS court. But I have been a foster parent for 3 years and have adopted 3 sweet children through foster care, so you can see that I really have an interest in working with these cases.

So, I am going to have lots of questions as I try to learn all the civil rules! My first question is this....

I filed an amendment to our original petition on a case last week, and my amendment was filed 15 days prior to trial. I read TRCP 63, which said I could do it up to 7 days before trial without leave of court, so I figured I was fine. This case has been set for trial before, and infact was granted a 180 extention about 5 months ago. The attorney for mom filed an objection today saying that the "7 days before trial" has to be 7 days before the first trial setting. While he didn't include them in his motion, he says he has case law to support that. I, admittedly, am not the best researcher around, but I have spent some time on Westlaw today and can't find anything to answer my question either way. This doesn't seem like it could be right, but I am so new to this I just don't know.

We are set for pre-trial on Friday, so if anyone knows, I would love to find out.

Thanks!
Jessica

Most attorneys will tell you their case law, or their thoughts if you call them. Have you called this attorney and asked?

You should get a copy of O'Connor's Civil Trials 2005. Look at pages 263-64. As I read it, you can amend more than 7 days before the original trial datewithout leave of Court if: (1) there was no pre-trial order requiring an earlier deadline and (2) there is no surprise. Citing Taiwan, 915 S.W.2d 61, 69 (ta13 1996, writ denied) & Amsav, 796 S.W.2d 482, 490 (ta14 1990, writ denied)

Thanks.

I haven't asked the attorney for this particular information, but I have worked with him for the past 4 years and he always holds things close to the vest.... Not me... I tell everything I know!

Thanks for the cite to O'Connor's. Yes, I do need to get that! Sounds like he is right. But, I can still ask for leave of court, right? I do not think he will be able to claim suprise. From what the ad litem and the intervenors attorney says, they have talked about this at all the prior hearings.

Thanks!

need a written motion for leave to amend. See Pennington, 899 S.W.2d 767, 771 (Ta2 1995, writ denied)

other side must object and show surprise. Chapin, 844 S.W.2d 664, 665 (Tex. 1992); Burrow, 997 S.W.2d 246. Lack of diligence may also be a basis to oppose amendment. AmSav, 796 S.W.2d at 790; Stevenson, 795 S.W.2d 313, 321 (Ta1 1990, writ denied).

The opposing party probably also has to seek a continuance to preserve error. Wingate, 795 S.W.2d 717, 721 & n.1 (Tex. 1990).

If the other side asks for a continuance because they allege they are disadvantaged by your supposedly late amendment, agree to give them more time.

I note that there was a 180 day extension 5 months (about 150 days) ago. So, if defense asks for continuance, you may not want to object outright, but you should make sure that the re-set date is PRIOR to your new dismissal date. I think giving the defense (probably can't show surprise anyway) 7 days from the date of the MOTION for continuance (not from the hearing, if there is one) would be more than sufficient. Also depends on the nature of your amendment -- if you are up against the dismissal date and the amendment is not essential, go forward on the last (pre-amendment) pleading.