The Texas motion to compel: you can skip straight to sanctions, but not the certificate

Texas discovery motions have two features worth knowing before you file.

The first is generous: you do not have to get an order compelling discovery before asking for sanctions. Rule 215.1 says so expressly.

The second is a trap: the certificate of conference requirement is not in Rule 215 at all. It sits in Rule 191.2, several rules away, and it applies to every discovery motion.

The certificate lives somewhere else

Tex. R. Civ. P. 191.2:

Conference. Parties and their attorneys are expected to cooperate in discovery and to make any agreements reasonably necessary for the efficient disposition of the case. All discovery motions or requests for hearings relating to discovery must contain a certificate by the party filing the motion or request that a reasonable effort has been made to resolve the dispute without the necessity of court intervention and the effort failed.

"All discovery motions or requests for hearings relating to discovery" — so the requirement reaches requests for a hearing as well as the motion itself.

The certificate must state two things: that a reasonable effort was made to resolve the dispute without the court, and that the effort failed.

Because this sits in Rule 191 rather than Rule 215, a practitioner reading only the sanctions rule will not see it.

What can be compelled

Rule 215.1(b) lists the triggers — a corporate designation failure under Rules 199.2(b)(1) or 200.1(b), a failure to appear or answer at a deposition, and then the written discovery failures:

(3) if a party fails:

(A) to serve answers or objections to interrogatories submitted under Rule 197, after proper service of the interrogatories; or (B) to answer an interrogatory submitted under Rule 197; or (C) to serve a written response to a request for inspection submitted under Rule 196, after proper service of the request; or (D) to respond that discovery will be permitted as requested or fails to permit discovery as requested in response to a request for inspection submitted under Rule 196;

Note the distinction between (A) and (B): failing to serve any answers or objections is a separate trigger from failing to answer a particular interrogatory.

And as elsewhere, a bad answer counts as none. Rule 215.1(c):

Evasive or incomplete answer. For purposes of this subdivision an evasive or incomplete answer is to be treated as a failure to answer.

Two routes, and you may take either

The sentence that follows the list in Rule 215.1(b) is the one Texas practitioners rely on:

the discovering party may move for an order compelling a designation, an appearance, an answer or answers, or inspection or production in accordance with the request, or apply to the court in which the action is pending for the imposition of any sanction authorized by Rule 215.2(b) without the necessity of first having obtained a court order compelling such discovery. When taking a deposition on oral examination, the proponent of the question may complete or adjourn the examination before he applies for an order. If the court denies the motion in whole or in part, it may make such protective order as it would have been empowered to make on a motion pursuant to Rule 192.6.

Most states require an order first, then sanctions for disobeying it. Texas allows a party who ignored proper discovery requests altogether to be sanctioned at the first hearing.

That said, a denied motion can produce a protective order against you under Rule 192.6 — so the sanctions route is not free.

Where to file

Rule 215.1(a):

Appropriate court. On matters relating to a deposition, an application for an order to a party may be made to the court in which the action is pending, or to any district court in the district where the deposition is being taken. An application for an order to a deponent who is not a party shall be made to the court in the district where the deposition is being taken. As to all other discovery matters, an application for an order will be made to the court in which the action is pending.

The non-party rule is mandatory — "shall be made" — and getting it wrong means filing in the wrong court.

Fees, and the proportionality cap

Rule 215.1(d):

Disposition of motion to compel: award of expenses. If the motion is granted, the court shall, after opportunity for hearing, require a party or deponent whose conduct necessitated the motion or the party or attorney advising such conduct or both of them to pay, at such time as ordered by the court, the moving party the reasonable expenses incurred in obtaining the order, including attorney fees, unless the court finds that the opposition to the motion was substantially justified or that other circumstances make an award of expenses unjust. Such an order shall be subject to review on appeal from the final judgment. If the motion is denied, the court may, after opportunity for hearing, require the moving party or attorney advising such motion to pay to the party or deponent who opposed the motion the reasonable expenses incurred in opposing the motion, including attorney fees, unless the court finds that the making of the motion was substantially justified or that other circumstances make an award of expenses unjust. If the motion is granted in part and denied in part, the court may apportion the reasonable expenses incurred in relation to the motion among the parties and persons in a just manner. In determining the amount of reasonable expenses, including attorney fees, to be awarded in connection with a motion, the trial court shall award expenses which are reasonable in relation to the amount of work reasonably expended in obtaining an order compelling compliance or in opposing a motion which is denied.

The asymmetry is deliberate:

So a movant who wins is presumptively entitled to fees, while a movant who loses faces only a discretionary award. Texas tilts toward the party seeking discovery — the opposite of Ohio's symmetric rule.

The final sentence is a proportionality cap found in few other states: expenses must be "reasonable in relation to the amount of work reasonably expended". A large fee claim on a small motion does not survive it.

And note that a fee order under this rule "shall be subject to review on appeal from the final judgment."

A non-party's own statement

Rule 215.1(e) covers a right that is easy to overlook:

Providing person's own statement. If a party fails to comply with any person's written request for the person's own statement as provided in Rule 192.3(h), the person who made the request may move for an order compelling compliance. If the motion is granted, the movant may recover the expenses incurred in obtaining the order, including attorney fees, which are reasonable in relation to the amount of work reasonably expended in obtaining the order.

A person, not necessarily a party, may compel production of their own statement and recover fees.

The sanctions

Rule 215.2(b) applies where a party "fails to comply with proper discovery requests or to obey an order to provide or permit discovery", and lets the court make just orders including:

(1) an order disallowing any further discovery of any kind or of a particular kind by the disobedient party; (2) an order charging all or any portion of the expenses of discovery or taxable court costs or both against the disobedient party or the attorney advising him; (3) an order that the matters regarding which the order was made or any other designated facts shall be taken to be established for the purposes of the action in accordance with the claim of the party obtaining the order; (4) an order refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting him from introducing designated matters in evidence;

Sanction (1) has no federal counterpart and is distinctively Texan: cutting off the disobedient party's own discovery. A defendant who stonewalls can lose the right to take discovery at all.

Rule 215.2(a) adds that a deponent who fails to appear, be sworn, or answer after being directed to do so by the district court where the deposition is taken "may be considered a contempt of that court."

Before you file

1. Check the discovery was properly served and the deadline has run — see responding to Texas written discovery.
2. Check the discovery level. Texas caps discovery by level, and a request exceeding the limits is not one you can compel. See Texas discovery levels.
3. Confer, and record the effort.
4. Put the Rule 191.2 certificate in the motion — and in any request for a hearing.
5. Decide which route you want — an order to compel, sanctions directly, or both.

How Texas compares

A short checklist

1. Include the Rule 191.2 certificate. It is not in Rule 215, and it applies to hearing requests too.
2. Check the discovery level limits before assuming a request is enforceable.
3. Pick the right court — especially for an order against a non-party deponent.
4. Quote Rule 215.1(c) where the answer was evasive or incomplete rather than absent.
5. Consider going straight to sanctions. No prior order is required.
6. Keep the fee request proportionate. The rule caps it by the work reasonably expended.
7. At a deposition, complete or adjourn before applying for an order.
8. Expect a protective order against you if the motion is denied.

Where these rules live

• Tex. R. Civ. P. 191 — Modifying Discovery Procedures; Conference Requirement
• Tex. R. Civ. P. 192 — Permissible Discovery
• Tex. R. Civ. P. 193 — Written Discovery; Response; Objection
• Tex. R. Civ. P. 196 — Requests for Production and Inspection
• Tex. R. Civ. P. 197 — Interrogatories to Parties
• Tex. R. Civ. P. 198 — Requests for Admission
• Tex. R. Civ. P. 215 — Abuse of Discovery; Sanctions

This page explains what the rules say. It isn't legal advice, and what makes an objection substantially justified is developed in case law this site doesn't cover.