| The following information is not offered as legal advice,
but is offered as general information only. This information is
not exhaustive and is provided as a community service only.
The court and its staff cannot give legal advice. It is recommended
that legal advice concerning Small Claims & Justice Courts in
Texas should only be requested from an attorney licensed to practice
law within the State of Texas.
FILING A SMALL CLAIMS or JUSTICE COURT SUIT: Please read this entire Overview of Small Claims &
Justice Courts in Texas before filing your suit. There are two civil
forums over which the Justice of the Peace presides: Small Claims
Court and Justice Court. Some types of case may be filed in either
forum, while others are restricted to a certain forum. There are
other similarities and differences that you should consider prior
to filing suit.
THE TEXAS STATUTES
The Texas Statutes are available on-line at: http://www.statutes.legis.state.tx.us/
VENUE
In Texas, a suit should be filed in
the County and Precinct where one or more Defendants reside. (CPRC
15.082). However, there are exceptions to this rule. For further
information, see "Venue in Justice Court Suits."
JURISDICTION
In Texas, a Justice Court Suit is
a civil suit for money damages, possession of real property, and
enforcement of liens on personal property. The amount of controversy
must be for no more than $10,000 or less, interest
excluded.
In Texas, a Small Claims Court Suit
is a civil suit for money damages
only (you may not recover personal property). The amount in controversy
must be for no more than $10,000 or less, interest
included. For more information please read "Comparison of Justice
Court and Small Claims Court" below.
DAMAGES
The amount of money you are suing for
is called "damage". The amount of damage sought must be
supported by evidence. A plaintiff may not reduce the amount
of the underlying claim in order to maintain a suit in the Justice
Court or Small Claims Court! For example: If a Plaintiff
states that the suit is for "$10,000" and the evidence
shows that the damages are actually greater than $10,000, the court
loses jurisdiction of the case, and the lawsuit must be dismissed
and refilled in a court of competent jurisdiction. Additionally,
a Plaintiff cannot tell the court that the damages are greater than
$10,000, but the Plaintiff is willing to "settle for less".
PARTIES TO THE SUIT
NAME OF THE PLAINTIFF: This
is the party that is instituting the suit. Only the individual(s)
or company(ies) named at the top of the Petition as Plaintiff(s)
may collect a Judgment in favor of the Plaintiff.
NAME OF THE DEFENDANT:
You must sue the Defendant(s) in their
proper legal capacity. If you name the Defendant wrong or mis-spell
the Defendant(s) name you may be prevented from recovery.
Be extra cautious when naming the Defendant.
As an Individual: You
must sue the Defendant individually in the following two situations:
(1) The Defendant is personally responsible
to you for damages he/she may have caused you, and
(2) The Defendant in an individual
capacity operating a proprietorship or partnership is responsible
to you for damages he/she may have caused.
As a Proprietorship or Partnership:
A proprietorship or partnership
is a business that is not incorporated, but has filed an "Assumed
Name" with the County Clerk. For example, "John Smith,
d/b/a Smith Plumbing Company." To determine whether a company
or an individual has an assumed name you must contact the County
Clerk’s office in the County where the company is located.
As a Corporation: If the business that has injured you is incorporated,
you must contact the Texas State Comptroller’s Office
at (800) 252-1386, or the Texas Secretary of State at (512) 463-5555.
Ask for the name and address for service of the Registered Agent
for service of the corporation (the President or Vice-President
will also work). This is the person who has been authorized to receive
information regarding lawsuits filed against this corporation. For
example: when completing your complaint, the name of the Defendant
should read "ABC Corporation, by serving John
Smith, Registered Agent."
CITATION
In Texas, a Constable or Sheriff, in
the County where the Defendant is located, must serve each Defendant personally. (Notably: In Texas,
under certain circumstances a recognized private process server
may perform service.) Fees for service vary by County.
In Texas, the average service fee is $60.00 per Defendant, plus
Court cost. If the Defendant is to be served in a County other than
the Texas County where you filed your lawsuit, you will need to
call the County Courthouse in the County where the Defendant will
be served. Ask who serves Civil Citations for Justice Court suits
in that County (usually a Constable or Sheriff) and call the appropriate
office. Find out the name, address, and service fees for civil citations.
It is your responsibility to insure service of your citations. If
you obtain a better address for the Defendant, call the Court and
the Constable or Sheriff and provide the new information as soon
as possible.
NOTE: Except for citations and papers
served by personal process, you must mail a copy of all papers filed
with the court to all other parties to the lawsuit.
ESTIMATED COSTS OF
SMALL CLAIMS & JUSTICE COURTS
IN TEXAS (2008)
Filing fees + Service fees $60.00 per
Defendant (see "Citation" above)
Small Claims Filing Fees are $25.00
Justice Court Filing Fees are $25.00
(Court Clerk prefers Cash or Money
Orders only for filing fees. No checks. Credit Cards and Debit Cards are usually not accepted.)
STATING YOUR CLAIM
State the nature of your claim fully,
listing specific facts and circumstances about your claim. You must
itemize how you obtained the total amount of your claim if it involves
more than one item.
AFTER SUIT IS FILED
SERVICE OF CITATION
In Texas, after you have filed your
petition the Small Claims or Justice Court, the Court will issue
and forward the Citation(s) to the Texas Constable or Sheriff’s
office you have indicated for service on the Defendant(s). Although
the Citation will leave the Court promptly, it can take several
weeks or more for the Citation to be personally served. It is your
responsibility to ensure service of your Citation. Check periodically
by telephone either with the Clerk of the Court or the Constable
or Sheriff’s office directly.
ANSWER
Once the Citation has been served the
Defendant must file a written answer to the suit on or before the Monday next following the expiration of ten
(10) days, beginning with the date of service. Take Note * Sworn
accounts must have a sworn answer *
and answer all Discovery (see below) If he/she fails to do so, you
(Plaintiff) will be notified by the Court to appear for a "Default
Hearing." You will be asked to briefly state the facts of your
case and present any documentation to substantiate those damages.
Most Courts prefer and in some Courts you MUST prepare
a written itemization of your damages.
ADDRESSES AND ADDRESS CHANGES
Each party or the party’s attorney
must provide the Clerk of the Court with written notice of the party’s
name and current residence or business address. In some Courts failure
to provide this information may result in a fine of not more than
$50.00. The notice must be provided at the time the party files
its initial pleadings with the court or not later than seven (7)
days after the Clerk of the Court requests the information. If the
party’s address changes during the course of a civil action,
the party, or the party’s attorney must provide the clerk
of the court with written notice of the party’s new address.
Information provided to the Clerk of a Court under this section
is confidential and may not be disclosed to the public without the
express authorization of the Court.
SERVICEMEMBERS' CIVIL RELIEF ACT
(SCRA)
If the Defendant does not file an answer
to the lawsuit, or does not appear in court, the Plaintiff will
NOT be able to receive a "default judgment" unless the
Plaintiff first files with the Court a Service members' Civil
Relief Act Affidavit stating, under oath, that the Defendant
is not in the military service
on active duty status. A false statement in this affidavit
is a violation of Federal Law!
If a Plaintiff does not have personal knowledge of the Defendant's
military status, the Department of Defense maintains a secure website
where the Plaintiff can obtain a status record. This website requires
registration of name and address, fax and telephone numbers, email
address and mother's maiden name, in order to use the website. This
form may be downloaded from some Court’s websites, or requested
from the address below:
Department of Defense
Manpower Data Center (DMDC)
Military Verification Service
1600 Wilson Boulevard, Suite 400
Arlington, VA 22209-2593
Telephone 703-696-5790
FAX: 703-696-4156
REPRESENTATION
In Texas Small Claims and Justice Courts,
a party may represent himself/herself regardless of whether he/she
is an individual, proprietorship, or corporation. The Texas Rules
of Evidence and Texas Rules of Civil Procedure are in effect in
Justice Court suits, but not in Small Claim Court suits.
TRIAL PREPARATION
TRIAL
If the Defendant files a written answer
in a Justice Court case, some Local Rules require that Forty Five
(45) days pass before the case can be set for trial. You will receive
written notice of your Court date. If you change your address or
phone number please notify the Court immediately. Please arrive
on time for your scheduled trial or hearing.
Parties who are not represented by attorneys
should prepare carefully for trial. Failure to prepare may result
in loss of the case due to failure of proof.
DISCOVERY
Discovery is a broad term used to describe
many different ways of obtaining information and evidence prior
to trial, to be used at trial. While discovery is common in Justice
Court cases, the permission of the judge must be sought for limited
discovery in Small Claims cases. Examples of discovery include:
• Interrogatories (written questions
requiring sworn answers);
• Requests for Admissions (written
statements requiring sworn admission or denial);
• Requests for Production (written
requests to produce evidentiary items for examination by the opposing
party prior to trial) less common at the Justice Court level, oral
depositions of witnesses are taken before a court reporter. Most
discovery documents come with directions attached. Read them carefully!
Failure to respond to discovery in a timely manner may result
in the loss of the case.
NO WRITTEN RECORD
The Justice of the Peace forums are
not "courts of record." There is no court reporter recording
witness testimony. In ALL
Small Claims and Justice Courts recording devices are not permitted
without the judge’s prior consent.
PROPER DRESS IS REQUIRED
In ALL Small Claims and Justice Courts
proper dress is required. All requirements pertain to both
adult and juvenile males and females unless otherwise noted. Failure
to comply may result in the resetting of the case to a later date,
or in the extreme, contempt of court:
-- Shoes are required.
-- No sleeveless shirts
-- No shorts (women are permitted to
wear dress shorts with hosiery)
-- No exposed midriffs
-- No clothing displaying offensive
words or pictures (the Court retains the exclusive right to define
"offensive" on an individual basis.
-- No hats (exception: religion)
-- Cleanliness. (If necessary, washrooms
are available in the building)
-- Officers of the court are held to
the higher standards generally recognized in Texas Courts.
INFANTS AND SMALL CHILDREN should
be left with a sitter or at home in the care of a competent adult.
There are no childcare facilities in the courthouse. Loud or crying
children should be taken out of the courtroom.
SUBPOENAS
Witnesses: If there are witnesses who will not come to Court voluntarily,
you may request that a Subpoena be prepared and served to secure
their presence in Court. This should be done at least two weeks
before trial in order to allow for service of the Subpoena. The
Court does not guarantee that service will be obtained. Successful
service of witness subpoenas is your responsibility. There is not
a charge for the Court to issue a Subpoena, but there is a service
fee of approximately $60.00 and a witness fee of Ten Dollars ($10.00).
Normally a Ten Dollar ($10.00) must be attached to the top of the
Subpoena.
Evidentiary Subpoenas: If
the Defendant or any other witness has documentation that you do
not have, and that is necessary to prove your case, you may have
the person who has control of the evidence subpoenaed to bring the
documentation to Court. The items you want must be listed clearly
and attached to the Subpoena. All of the other information mentioned
above is also applicable to evidentiary subpoenas.
JURY REQUEST
If you desire a trial by jury you must
pay a jury fee of Five Dollars ($5.00) at time you file your petition.
Requests for a jury trial ordinarily require the trial date to be
reset. Jury trials often last several hours longer.
MOTIONS FOR CONTINUANCE
In Texas, most Small Claims and Justice
Courts require all Motions for Continuance, or requests to reset
the Court date, must be in writing and
received by the Court no later than three (3) working
days prior to your Court date.
Weekends and Holidays are excluded. The Plaintiff and the Defendant
are each entitled to request one reset "only for good cause,"
and all other reset requests must be made by agreement of both parties.
(Gov’t. Code 28.033)
WHAT HAPPENS AFTER TRIAL?
APPEAL INFORMATION
Either party has ten (10) days in which
to appeal the Judge’s decision. An appeal bond must
be filed with the Court on or before 4:30pm on the 10th day after
the date of Judgment. Appeals filed after this date will be denied.
• Contact the Court and find out
the amount of the appeal bond required for your appeal.
• Prepare a Surety Bond for the
entire amount of the Appeal Bond required by the Court.
• Pay a $10.00 Transcript fee
The Small Claims or Justice Court will
then prepare a Transcript of the pleadings on file in your case
and send it to the County Court Clerk for the County where the initial
Small Claims or Justice Court lawsuit was filed. All Court contact
from this point on will be with the County Court. There will be
filing fees required from the County Court, and they will contact
the party who is appealing regarding payment of those fees.
MOTION FOR NEW TRIAL
Motions for New Trial must be filed
in writing within five (5) days from the date of the Judgment
COLLECTION OF JUDGMENTS
If you receive a Judgment against the
Defendant and the Defendant does not file a Motion for New Trial
within five (5) days, does not file an Appeal within ten days, or
does not pay the Judgment within ten (10) days you may seek other
remedies to collect your Judgment. The Justice Court cannot assist
you in collection of your Judgment. Below are listed some remedies
that are available to you, and that may assist you in the collection
of the Judgment.
ABSTRACT OF JUDGMENT: You
may obtain an Abstract of Judgment any time after the 11th day from
the date of Judgment. The cost of an original Abstract is Five Dollars
($5.00), and you may obtain them from the Small Claims or Justice
Court. The Abstract may then be filed in the office of the County
Clerk in any County where you think the Judgment Debtor may own
real property. The Small Claim or Justice Court can also provide
a short list of the surrounding County Clerk’s offices where
you could file the Abstract.
WRIT OF EXECUTION: You
may obtain a Writ of Execution any time after the 30th day from
the date of Judgment. A Writ of Execution allows a Sheriff or Constable
to try and seize certain non-exempt property from the Defendant.
If property is seized, an auction will be held and the proceedings
from the sale will satisfy your Judgment. The cost of a Writ of
Execution varies from County to County, and you may also want to
contact the Constable or Sheriff in that
County to discuss what items are considered
non-exempt and may be subject to execution.
WRIT OF GARNISHMENT: A
Writ of Garnishment is available 30 days after the date of Judgment.
This is a new lawsuit and is a complicated procedure. We recommend
that you consult an attorney.
TURNOVER WRIT: This process requires a Court hearing. We recommend
that you consult an attorney.
HOW TO PAY JUDGMENTS WHEN THE JUDGMENT
HOLDER CANNOT BE FOUND
If one party to whom a judgment is owed
cannot be located, it is possible to pay the judgment into the registry
of the court on a showing of good faith attempts by the judgment
debtor to locate the prevailing party. Once the court is satisfied
that the party cannot be located, the payment can be accepted and
the court can issue a release. The money is then held until claimed
by the party to whom it is owed, or the money is forfeited to the
State of Texas. |
