In one sentenceRule 266 gives the plaintiff the right to open and conclude the evidence and argument unless the defendant bears the burden on the whole case or admits the plaintiff's case except for an affirmative defense, which shifts that right to the defendant.
Full Text of Rule 266
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Except as provided in Rule 269 the plaintiff shall have the right to open and conclude both in adducing his evidence and in the argument, unless the burden of proof on the whole case under the pleadings rests upon the defendant, or unless the defendant or all of the defendants, if there should be more than one, shall, after the issues of fact are settled and before the trial commences, admit that the plaintiff is entitled to recover as set forth in the petition, except so far as he may be defeated, in whole or in part, by the allegations of the answer constituting a good defense, which may be established on the trial; which admission shall be entered of record, whereupon the defendant, or the defendants, if more than one, shall have the right to open and conclude in adducing the evidence and in the argument of the cause. The admission shall not serve to admit any allegation which is inconsistent with such defense, which defense shall be one that defendant has the burden of establishing, as for example, and without excluding other defenses: accord and satisfaction, adverse possession, arbitration and award, contributory negligence, discharge in bankruptcy, duress, estoppel, failure of consideration, fraud, release, res judicata, statute of frauds, statute of limitations, waiver, and the like.
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Plain-English Summary
Rule 266 sets who opens and closes. The plaintiff normally has the right to open and conclude both in putting on evidence and in argument. That changes in two situations: where the burden of proof on the whole case rests on the defendant under the pleadings, or where the defendant admits, after the fact issues are settled and before trial, that the plaintiff is entitled to recover as pleaded except as the defendant may defeat the claim by a defense it must establish. On that admission, entered of record, the defendant gains the right to open and conclude.
The admission does not concede anything inconsistent with the defense, and the defense must be one the defendant carries the burden to prove — the rule lists examples such as accord and satisfaction, adverse possession, contributory negligence, estoppel, fraud, release, res judicata, statute of limitations, and waiver.
Frequently Asked Questions
Who gets to open and close at a Texas trial?
Usually the plaintiff. Under Rule 266, the defendant gains that right only if it bears the burden on the whole case or admits the plaintiff's case except for an affirmative defense it must prove.
What kinds of defenses can shift the right to open and close under Rule 266?
Ones the defendant must prove. Rule 266 lists examples like accord and satisfaction, adverse possession, arbitration and award, contributory negligence, discharge in bankruptcy, duress, estoppel, failure of consideration, fraud, release, res judicata, statute of frauds, statute of limitations, and waiver — defenses the defendant carries the burden to establish.
When must a defendant make the Rule 266 admission?
After the fact issues are settled and before trial begins. Rule 266 also requires the admission to be entered of record, not just stated informally, before the defendant gains the right to open and conclude.
Source & verification. Rule text and the official Notes and Comments are reproduced verbatim from the
Texas Rules of Civil Procedure (Tex. R. Civ. P. 266), published by the Texas Judicial Branch (txcourts.gov).
Promulgated by the Supreme Court of Texas. The plain-English summary is original and draws on official sources. Last verified June 28, 2026. ·
Official source
Also known as:open and closeright to open and concludedefendant's admissionburden of proofTRCP 266