Part 2
In the first of this two-blog series, the key requirements for designating known RTPs were summarized. This time, the different requirements for designating unknown RTPs will be addressed.
Section 33.004(j) of the Texas Civil Practice and Remedies Code specifically allows a defendant to designate an unknown person as a RTP; however, particular requirements and limits are imposed for such a designation.
Answer. Before filing a motion for leave to designate an unknown RTP, a defendant must allege in an answer filed with the court that an unknown person committed a criminal act that was a cause of the loss or injury that is the subject of the lawsuit. The answer must also include all identifying characteristics of the unknown person, known at the time of the answer. The answer containing these allegations and statements must be filed within 60 days after the filing of the defendant’s original answer.
Motion for Leave. To designate an unknown RTP, a defendant must also file a motion for leave to designate the unknown RTP. Unlike designating a known RTP, a defendant seeking to designate an unknown RTP must plead sufficient facts for the court to determine that there is a reasonable probability that the act of the unknown RTP was criminal.
Fair Notice. As with designating a known RTP, designation of an unknown RTP requires satisfaction of the fair-notice pleading requirement.
Deadlines. Within 60 days after filing the defendant’s original answer, the defendant must file an answer containing allegations that an unknown person committed a criminal act that was a cause of the loss or injury that is the subject of the lawsuit and statements of all identifying characteristics of the unknown person, known at the time of the answer. Failure to comply with this requirement will bar designation of the unknown person as a RTP.
A defendant who complies with this initial deadline may file a motion for leave to designate the unknown person as a RTP, which must be filed on or before the 60th day before the trial date unless the court finds good cause.[1]
Key takeaways for designating an unknown RTP:
- In the original answer or in an answer filed within 60 days of the original answer, allege that an unknown person committed a criminal act that was a cause of the loss or injury that is the subject of the lawsuit and include all identifying characteristics of the unknown person, known at the time of the answer.
- When preparing the motion for leave, be sure to plead sufficient facts to support allegations that in reasonable probability the unknown person committed a criminal act.
- File the motion for leave on or before the 60th day before trial.
[1] In re Unitec Elevator Servs. Co., 178 S.W. 3d 53, n. 7 (Tex. App. – Houston [1st Dist.] 2005, no pet.)
