Texas discovery levels: what Level 1, 2 and 3 actually limit

Rule 190.1 opens with a sentence that has no equivalent in the federal rules:

Every case must be governed by a discovery control plan as provided in this Rule. A plaintiff must allege in the first numbered paragraph of the original petition whether discovery is intended to be conducted under Level 1, 2, or 3 of this Rule.

Not somewhere in the petition. The first numbered paragraph. If you're reading a Texas petition and want to know how much discovery the case allows, that's where to look.

The three levels aren't degrees of complexity so much as three different sources of authority. Level 1 comes from the size of the case, Level 2 is the default the rule supplies, and Level 3 is whatever a judge orders.

Level 1 — expedited actions and small divorces

Rule 190.2 applies to two categories: any suit governed by the expedited actions process in Rule 169, and — unless the parties agree Rule 190.3 should apply or the court orders a Level 3 plan — any divorce not involving children where a party pleads the marital estate is worth more than zero but not more than $250,000.

Rule 169(a) defines the first category: a suit in which all claimants other than counter-claimants affirmatively plead that they seek only monetary relief aggregating $250,000 or less, excluding interest, statutory or punitive damages and penalties, and attorney fees and costs. Rule 169(b) caps the recovery to match: a party who prosecutes a suit under Rule 169 may not recover a judgment above $250,000, with the same exclusions.

The Level 1 limits:

Each discrete subpart counts as a separate request — the rule says so for interrogatories, requests for production and requests for admission alike. Interrogatories asking a party only to identify or authenticate specific documents don't count against the 15.

The period starts differently depending on the case. In a suit not governed by the Family Code, it begins when the first initial disclosures are due and runs 180 days. In a Family Code suit, it begins when the suit is filed and runs until 180 days after the first request for discovery of any kind is served on a party.

Getting out. Rule 190.2(c): if a suit is removed from the expedited actions process, or a pleading makes the divorce provision no longer applicable, the discovery period reopens and discovery must be completed within Level 2 or Level 3 limits. Anyone previously deposed may be redeposed, and on motion the court should continue the trial date if that's needed to finish.

Rule 169(c) governs removal itself. The court must remove a suit from the expedited process on motion and a showing of good cause, or if a claimant files a pleading seeking relief beyond the monetary relief Rule 169(a) allows. A pleading that removes the case can't be filed without leave unless it's filed before the earlier of 30 days after the discovery period closes or 30 days before trial — and leave may be granted only if good cause outweighs prejudice to the other side.

Level 2 — the default

Rule 190.3 applies unless the suit is governed by Level 1 or a Level 3 order. Most Texas cases live here.

The discovery period in a non-Family Code suit begins when the first initial disclosures are due and continues until the earlier of 30 days before the trial date or nine months after the first initial disclosures are due. In a Family Code suit it runs from filing until thirty days before trial.

Two features of Level 2 catch people out.

Deposition hours are per side, not per party. Each side gets 50 hours in oral depositions to examine and cross-examine parties on the opposing side, experts those parties designated, and persons subject to those parties' control. Rule 190.3(b)(2) defines "side" as "all the litigants with generally common interests in the litigation." Three co-defendants with common interests share one 50-hour allowance.

If one side designates more than two experts, the opposing side gets an additional six hours of total deposition time for each additional expert. The court may modify the hours, and must do so when a side or party would be given an unfair advantage.

Only interrogatories are capped. Rule 190.3(b)(3) limits written interrogatories to 25 per party, again excluding those that only ask a party to identify or authenticate specific documents, and again counting each discrete subpart separately. The rule sets no numeric limit at Level 2 on requests for production or requests for admission. Other limits still apply — scope, proportionality and the court's power to intervene — but the number isn't in Rule 190.3.

Level 3 — by order

Rule 190.4 lets the court order a plan tailored to the case. The court must do it on a party's motion and may do it on its own initiative, and should act "as promptly as reasonably possible." The parties may submit an agreed order.

A Level 3 plan may address any discovery issue or any matter listed in Rule 166, and may change any time or amount limit in the rules. Where it doesn't specifically change something, Level 1's limits (if applicable) or otherwise Level 2's continue to apply.

Rule 190.4(b) requires every Level 3 plan to include four things:

1. a date for trial or for a conference to set one;
2. a discovery period during which all discovery must be conducted, or all discovery requests sent, for the whole case or an appropriate phase;
3. appropriate limits on the amount of discovery; and
4. deadlines for joining additional parties, amending or supplementing pleadings, and designating expert witnesses.

What starts the clock

At Levels 1 and 2 in a non-Family Code case, the discovery period doesn't begin at filing or at service. It begins when the first initial disclosures are due.

Rule 194.2(a) sets that date: a party must make initial disclosures within 30 days after the filing of the first answer or general appearance, unless the parties agree otherwise or the court orders a different time. A party first served or joined later has 30 days from being served or joined.

So the whole discovery calendar in a typical Texas case traces back to the day the first defendant answered. Rule 194.2(c) exempts some proceedings from initial disclosures entirely: review on an administrative record, a state-statute forfeiture action, habeas corpus, an action involving domestic violence, and an appeal from justice court.

Expert deadlines run backward from the end

Rule 195.2 sets the designation schedule by counting back from the close of discovery, unless the court orders otherwise:

• experts for a party seeking affirmative relief — 90 days before the end of the discovery period;
• all other experts — 60 days before the end of the discovery period.

Rule 195.4 requires pretrial disclosures — witnesses and exhibits the party may present at trial other than solely for impeachment — at least 30 days before trial unless the court orders otherwise.

Changing the plan

Rule 190.5 lets the court modify a discovery control plan at any time, and requires it to do so when the interest of justice requires.

The rule then makes additional discovery mandatory in two situations — unless the suit is governed by the expedited actions process:

New pleadings or new information. The court must allow additional discovery related to new, amended or supplemental pleadings, or new information disclosed in a discovery response, if the pleading or response came after the discovery deadline or so near it that the other party lacked an adequate opportunity to conduct discovery on the new matters — and the other party would be unfairly prejudiced without it.

Changed circumstances after cutoff. The court must allow additional discovery about matters that changed materially after the discovery cutoff, if trial is set or postponed so the trial date falls more than three months after the discovery period ends.

What the limits don't reach

Rule 190.6: the limits in Rule 190 don't apply to discovery under Rule 202 (depositions before suit or to investigate claims) or Rule 621a (discovery in aid of enforcing a judgment). The rule adds one guard: "Rule 202 cannot be used to circumvent the limitations of this rule."

Where these rules live

• Rule 169 — Expedited Actions
• Rule 190 — Discovery Limitations
• Rule 194 — Required Disclosures
• Rule 195 — Discovery Regarding Testifying Expert Witnesses

For forms and step-by-step help, the Texas courts point to TexasLawHelp.org. This page explains what the rules say. It isn't legal advice, and a court's scheduling order in a particular case controls over the defaults described here.