§ 26.002.Mandatory Guidelines

A one-line constraint on rulemaking, and it is a constitutionally interesting one.

Rules adopted under the rulemaking provision must comply with the mandatory guidelines established by this chapter.

The Texas Supreme Court promulgates the rules of civil procedure, and class actions are governed by Rule 42, modelled on the federal rule. This chapter directs the court to adopt rules on the subject and then tells it what those rules must contain.

That is the Legislature constraining the rulemaking power, which is the recurring tension between the two branches over civil procedure in Texas. The Legislature grants the rulemaking authority and can qualify it; the court exercises it.

The mandatory guidelines are what the rest of the chapter supplies, and the substantive one is the attorney’s fee provision — which regulates contingent fee awards in class actions and requires the court to consider specified factors.

So the chapter is short because it is not a class action code. It is a small number of legislative requirements sitting on top of a rule the court writes.

Read it with the state agency provision at the end of the chapter, which is the other substantive constraint: where a state agency has exclusive or primary jurisdiction over the subject matter, that is addressed separately.

A practitioner looking for the law of class certification in Texas reads Rule 42 and the case law under it. This chapter answers the narrower question of what the Legislature required the rule to say.