Amending pleadings in Texas state court
A party may amend by filing the amended pleading with the clerk "at such time as not to operate as a surprise to the opposite party." Leave of court is required only for a pleading filed within seven days of trial, or after a deadline set under Rule 166. That leave "shall be granted by the judge unless there is a showing that such filing will operate as a surprise to the opposite party." Tex. R. Civ. P. 631
- What counts as an amendment. An amendment adds to or withdraws from what was previously pleaded: it can perfect a deficient pleading, correct a misstatement, or plead "new matter" that "constitutes an additional claim or defense permissible to the suit." Tex. R. Civ. P. 621 A supplemental pleading is different: it responds to "the last preceding pleading by the other party." Tex. R. Civ. P. 691
- Watch the court's deadline. A Rule 166 pretrial conference may address "[t]he necessity or desirability of amendments to the pleadings," and a cutoff set under Rule 166 triggers the leave requirement of Rule 63 earlier than seven days before trial. Tex. R. Civ. P. 1661
- Form. The amended pleading must identify the instrument it amends and be a substitute "entire and complete in itself," titled accordingly (for example, "amended original petition"). Tex. R. Civ. P. 641
- Effect. The superseded instrument is "no longer be regarded as a part of the pleading in the record," except in limited situations, including where it is "necessary to look to the superseded pleading upon a question of limitation." Tex. R. Civ. P. 651
- Trial amendments. When evidence is objected to as outside the pleadings, the court "shall do so freely" (allow the amendment) if the merits are served and the objecting party fails to show prejudice. The court may grant a postponement. Tex. R. Civ. P. 661 Issues tried by express or implied consent are treated as pleaded, and an amendment to conform may be made up to submission. Tex. R. Civ. P. 671
- Relation back. An amendment that changes the facts or grounds of liability is not barred by limitations "unless the amendment or supplement is wholly based on a new, distinct, or different transaction or occurrence." Tex. Civ. Prac. & Rem. Code § 16.0682
Practice notes
- Rule 91a timing. If a Rule 91a motion to dismiss is pending, amend the challenged cause of action at least 3 days before the hearing. The court "must not consider a nonsuit or amendment not filed as permitted." Tex. R. Civ. P. 91a.51