One of the least debated and noticed provisions of House Bill 4 of the 78th Legislature in 2003 was Section 3.01, which authorized the Texas Supreme Court to adopt rules relating to Multi-District Litigation (“MDL”). Venue rights are inherently constitutional; therefore the act limited the MDL authority to pretrial matters. Beyond that limitation, the legislature left a blank canvas for the Supreme Court to adopt rules to further its mandate.

Based on review by the Supreme Court’s Task Force on Rules, the court adopted Rule 13 of the Texas Rules of Judicial Administration on August 29, 2003. It made some groundbreaking regulations covering MDLs that were unique compared to those in the federal MDL system and in other states:

1. The Multi-District Litigation Panel (“Panel”) was established to determine which cases would, and would not, be subject to the MDL process. Unlike the federal MDL panel, the Texas panel consists solely of justices of the Courts of Appeals and one Regional Administrative Judge appointed by the Texas Supreme Court.
2. Similar to most MDLs around the nation, Texas MDL judges are generally authorized to hear all pretrial matters. The provisions of the Texas Rule, however, have had the effect of expanding the tasks assigned to the pretrial judges. They include motions in limine, introduction of documentary evidence and ruling on objections to deposition excerpts. This appears to envision a remand shortly before trial.
3. Rule 13 specifies that the ruling of the pretrial judge is binding on the trial judge, and that rulings made may not be changed by the trial judge without the written consent of the pretrial judge. This was by far the most controversial portion of the rule proposed by the task force, and consumed a lot of debate. For the most part, it has not been an issue since adoption of the rule.

Procedural requirements for the submission of a case to an MDL pretrial court are unequivocally set forth in Rule 13.3 of the Texas Rules of Judicial Administration. Motions must be in writing and must comply with the format and size requirements of Rule 9.4 of the Rules of Appellate Procedure. The Clerk of the Panel is the Clerk of the Supreme Court of Texas, and all motions or responses relevant to the creation of an MDL should be filed there.

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