Certification Under the Texas Rule

Under Texas law, there are four prerequisites to class certification, which are similar in content to the federal prerequisites. First, the class must be so large that joinder of all the parties is impractical. This is the simplest prerequisite to satisfy and seldom is disputed. Like federal court judges, state court judges look at the number of claimants, the location of the class members, the amount of the claims, and the ability of individual members to sue on their own, as well as the likelihood that they would do so.

The second prerequisite under the Texas rule is that the members of the class have questions of law or fact in common. This issue becomes the subject of litigation if a defendant demonstrates that he or she could assert a defense against some, but not all, of the members of the class--the defense is separate and independent from the common issues. Although defendants use this argument to challenge class certification, such challenges seldom are successful. Courts usually determine that the use of the class action will not impair the defendant's ability to assert the appropriate defenses, and that the defendant will not be harmed by having to do so within one large proceeding, as opposed to individual hearings.

The third prerequisite to class certification under Texas law is that the claims or defenses of the class representative are typical of the class. The final factor is that the class representative is able to fairly and adequately protect the interests of the class members. These last two factors incorporate from the Federal Rule the requirement that the named representative have common interests with the members of the class so he or she will be motivated to vigorously fight for the common rights. Because the representative must speak for all absent class members, the court must be assured that the representative shares their interests sufficiently to advocate for them.

If the court determines that these first four prerequisites for class certification are met, under Texas law the court then must determine if a class action may be maintained. In making this determination, the court looks to many of the same factors set forth in the Federal Rule. First, the court must determine whether the denial of the class action would cause prejudice to the class or to non-class members. For example, a class action lawsuit will be held to be proper if there is a possibility that a defendant will run out of money after the first few individual claims are settled so that some individuals are not compensated. A defendant also could be prejudiced by the denial of certification, in that a defendant would be required to respond to individual claimants. A second ground for maintaining a class action is if the suit is for injunctive or declaratory relief, as in cases of employment discrimination, consumer protection, or environmental issues. In these cases, the class is seeking to halt some practice of the defendant that affects the entire group of people and therefore makes class action litigation an appropriate method of adjudication. A third ground for maintaining a class action in Texas is that the objective of a suit is adjudication over specific property. The final, and most common, ground for granting a class certification is that the common questions of law or fact predominate over those the class members do not share and class action litigation is "superior" to other methods available for the fair and efficient resolution of the controversies. This two-part test mirrors factors set forth in the Federal Rule for "predominance" and "superiority." In making this determination, the courts will consider the extent and nature of any individual lawsuits about the same issues that already have been started by or against members of the class. The court also considers the difficulty of managing the case as a class action, as well as the desirability of bringing all parties together in the Texas courts. Finally, the court will consider the interest class members may have in personally controlling the prosecution or defense of separate cases. In the Dalkon Shield cases, for example, the court denied certification of the class on the ground that the injuries and trauma suffered were so great that each injured woman should have an opportunity to present her case to the court.

In addition to the general rules governing class actions, Texas also has special rules governing lawsuits in which a shareholder sues on behalf of a corporation ("derivative" suits). While many of the provisions for these special types of class action suits are similar to the general rules, a full discussion of their specific provisions is beyond the scope of this chapter.