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Initiating a lawsuit should be considered a last resort to be used only after all possibilities of negotiation have been exhausted. Before you file, you may want to contact various agencies to see if counseling and mediation services are available for your specific problem. If your dispute arises out of a tenant-landlord relationship, you should contact the Austin Tenants’ Council for counseling. The Dispute Resolution Center also has mediators who assist disputing parties in resolving their conflicts and reaching mutually acceptable agreements outside the courtroom. However, if mediation fails, you may desire a legal remedy.

This publication is designed to familiarize you with the procedures involved in a small claims court lawsuit but is not a substitute for legal advice. If you need legal advice, you should contact an attorney.

The state of Texas provides courts in which individuals may settle monetary disputes in a speedy, informal setting. They are known as justice of the peace courts but are sometimes referred to as small claims courts.

A party can sue in justice court for damages of up to $20,000. The justice court may also order the return of personal property if the value of the personal property items is less than $20,000.  It can also order a landlord to repair conditions that affect health and safety if the tenant shows that the tenant has complied with all the steps to get the landlord to repair before filing the suit.

To File or Not to File 

To sue another person in small claims court, one must file a sworn statement called a petition or a complaint with the justice of the peace (JP). The person who sues is the plaintiff; the person being sued is the defendant.

If you are considering filing, learn something about the defendant before you file your suit. If the defendant does not have anything (money or property) that could be seized legally by the constable, it is likely that you will never get what you are suing for. It is a terrible disappointment to find out after you have taken the time and expense to win a case and then try to collect on your judgment that the defendant is penniless. In other words, “You can’t get blood from a turnip.”

Consider whether the person you want to sue has any legal claims against you that they e might counter-sue. For example, it may not be wise to sue someone for $2,000 if you owe that person $3,000.

Determine when your cause of action arose. The time within which you must file suit — or lose your claim — is governed by a statute of limitations.   If you allege a contract violation, you have four years in which to sue.  Other claims may provide for a limitation period of only two years.  In addition, when you wait a long time to file a suit, witnesses may disappear, and memories may fade.  Thus, it is best to file your lawsuit in a prompt manner.

Who May Sue or Be Sued?

Any person over the age of 18 years may sue in small claims court.  A parent may file suit for a minor as the next friend of the minor.

A minor may be sued in small claims court. The parent or guardian is not automatically responsible for the acts of the minor. However, if you sue the parent or guardian, you must be prepared to prove why the parent or guardian should be held responsible for the acts of the minor.

An association, partnership, or corporation over which the court has jurisdiction may also be sued.

Which Court to Use 

The justices of the peace in each county sit as judges of the small claims courts. The addresses and telephone numbers of these courts may be found in an online Google search. The suit should be filed in the precinct in which the claim arose or in the precinct in which the defendant lives.

If the defendant attempts to change the venue, that is, have the case moved to another precinct or county, contact the court for information.

Filing Suit

The civil clerk in the justice of the peace court will provide you with a petition in which to describe your claim and the damages you are seeking. The clerk will accept your fee and give you a receipt.  Check the court’s website for a listing of current fees. If you cannot afford the filing fee, ask the clerk of the court to give you the form titled  Statement of Inability to Pay Court Costs.  If you file the Statement of Inability, the judge will determine whether you may proceed with your lawsuit without paying court fees..

Most cases are heard by the judge. However, either side may ask that a jury hear the case.  A party who wants a jury trial must file a written demand no later than 14 days before the date a case is set for trial and pay a jury fee of $22.00 or file a Statement of Inability to Afford Payment of Court Costs at or before the time the party files the request for a jury trial.

When you complete the petition, provide all the requested information, and describe the facts giving rise to your legal claim.  State the dollar amount of damages you are asking the court to award to you and explain how you calculated the amount.   

You will be required to provide the following information:

1. Your name, address, telephone number, and fax number, if any;

2. The name, address, and telephone number, if known, of the defendant;

3. The amount of money, if any, you are seeking;

4. A description and claimed value of any personal property you seek to recover;

5. A description of any other relief you want the court to award you;

6. A description of the facts that form the basis of your claim against the defendant; and

7. A statement consenting to email service and email contact information, if you consent to email service of the answer and any other motions or pleadings.

Determine the correct name and address of each person or business you are suing before going to the justice court office.  The correct names and addresses are vital to your case because the court cannot grant a judgment against a defendant who is improperly named in the complaint. If the business is a partnership, name both partners individually and the partnership by its correct legal name. If the business is a corporation, state its exact name including the word or abbreviation “incorporated” or “company” and state the name of the registered agent for the corporation. The registered agent’s name may be obtained by contacting the Texas Secretary of State’s Corporate Division. Remember that the address of the registered agent may be different from that of the business.

Some justice courts ask that the plaintiff swear that the facts stated in the petition are true and correct.

Once a plaintiff has filed a petition, a constable delivers a citation (notice that a lawsuit has been filed), with a copy of the petition attached to the defendant. The defendant must be properly served a citation for the case to proceed. The defendant must file a written answer with the court by the end of the 14th day after service of the lawsuit by the constable.  The defendant is required to send the plaintiff a copy of the answer.

If the defendant does not answer or appear in court, the plaintiff can then call the court clerk to schedule a hearing to obtain a judgment by default against the defendant. The plaintiff should go to the default judgment hearing fully prepared to present all the evidence in support of the claim to the court.

A defendant against whom a default judgment is granted may file a motion to set aside the default judgment no later than 14 days after the judgment is signed.  The court may set aside the judgment and set the case for trial if the defendant shows good cause.  The judge has a limited time to rule on the motion to set aside a default judgment.  The judge must rule by 5:00 p.m. on the 21st day after the judgment was signed or the motion to set aside is automatically denied. 

Once the defendant files an answer to the lawsuit petition, the court will eventually schedule a trial date.   Depending on how busy the court is, it may be months before the trial date is scheduled.  It is best to stay in touch with the court clerk so that the court knows you are interested in your case. 

On the day of the trial, TAKE  WITH YOU TO THE COURT any evidence of your claim — such as receipts, invoices, canceled checks, and correspondence — and any witnesses who will testify on your behalf. You should show up 15 – 30 minutes early.  DO NOT BE LATE, or the judge may dismiss your case or grant the other party a default judgment.

It is perfectly acceptable to try and “work something out” with the other side.  If you are the defendant, you should always file a written answer with the court.  This will protect you from a default judgment in the event you are unable to resolve the matter. 

Counterclaims

If a defendant has a claim of damage or liability (responsibility) against the plaintiff, the defendant can file a counterclaim petition against the plaintiff in the justice court under the same suit the plaintiff originally filed.  The defendant must pay a filing fee or file a Statement of Inability to Afford Payment of Court Costs. The defendant must serve a copy of the counterclaim petition on the plaintiff.  This may be done by hand delivery, fax, or certified mail, return receipt requested.  Service by email is allowed if the plaintiff has provided an email address and consented to email service in writing.   

Save a copy of the counterclaim petition and the receipt for the counterclaim filing fee for your records

If the defendant files a counterclaim, the defendant has “the burden of proof” to convince the judge or jury that the defendant should win on the counterclaim... The justice of the peace has to decide cases by a preponderance of the evidence.

Preparing for Court 

The courts must send notice of the date, time, and place of the trial to all parties no less than 45 days before the trial date unless the judge determines that an earlier setting date is required in the interest of justice.

Small claims courts are designed to be accessible to the layperson. For this reason, technical rules of evidence and civil procedure are not applicable in higher courts. Either party may choose to have an attorney represent him/her, but it is not required in this court.

The plaintiff has “the burden of proof.” That means that the plaintiff must convince the judge or jury through his presentation that he should win.

Written documents, photographs, and/or witnesses will make your case more convincing than if you rely only on your argument.

Take your witnesses and records to court for the hearing. If witnesses are unwilling to come voluntarily, the court will subpoena (order) them to appear if requested. If you ask the constable to deliver the subpoena, the court will tell you the fee you must pay for service by the constable. You should contact the court clerks or the court website for current fees and information.

• A CONTINUANCE is a court-approved postponement of a hearing. If you or an important witness or document will not be available on the date of the hearing, you should request a continuance.  If you need a continuance, you should file a written request for the continuance.  Your written request must explain why you are asking for a postponement. The judge may postpone the trial for good cause for a reasonable time.  A continuance will generally be granted when the other party notifies the court that he does not oppose the postponement.

• If the other party notifies you of a reasonable need to postpone the hearing, you will save yourself some inconvenience by agreeing to the continuance.

If you need a language interpreter or you are hearing-impaired and need an interpreter, tell the clerk several weeks before trial.  You should also file a written motion requesting an interpreter.  You should file the motion for an interpreter as soon as the court sets the case for trial to give the court enough time to arrange for an interpreter.

Practice explaining your case to a friend. Write down a few notes or a brief outline to follow in court to make sure you touch on all the points in your favor. Try to anticipate what the other side will say and be prepared to meet those arguments. You might sit in on another case like yours to get an idea of what to expect. The civil clerk can tell you when a case like yours is scheduled to be heard.

Remember, the plaintiff may, at any time, drop the suit.

Once You Get to Court: The Hearing 

The plaintiff will present his side first. Then the defendant can present his side.

You may testify yourself. You may call your witnesses to testify. You may also call the other side and any of the witnesses to the stand to testify. Anyone called to testify may be cross-examined (questioned) by the other side.

Explain your case to the judge. You cannot expect to win unless you make the court understand (1) the kind of case you have; (2) exactly what amount you are requesting; and (3) why you believe you are entitled to that amount.

REMEMBER: The judge must decide the case by a preponderance of the evidence based on the documents and sworn testimony presented in court on the day of the trial. It will not help you if you do not bring the documents or witnesses necessary to prove your case.

Address your statement to the JUDGE or JURY, not to the other side. Do not interrupt the judge and always address the judge respectfully as  “Your Honor.” After both sides have concluded, the judge will sign a JUDGMENT stating whether the plaintiff or defendant wins and the amount of any damages, if any that the court is awarding. You should ask for a copy of the written judgment.  If the judge takes the case “under advisement” it means that the judge wants to think some more about the case before signing a judgment. Telephone the court a few days later to find out if the judge has made a decision in your case.

If the Plaintiff Wins

If the judgment in the case is for the plaintiff, the defendant will be ordered to pay the amount ordered by the court plus court costs. Court costs include all fees collected by the court.

Both parties have 21 days from the date the judgment is signed to appeal. Both parties also have 14 days from the date the judgment is signed to file a motion for a new trial.

Collecting on the Judgment

If no motion for a new trial is filed and no appeal is filed within 21  days from the date of the judgment, you may get a copy or an abstract of the judgment from the justice court and file it in the county clerk’s Real Property Records. As long as the judgment is unpaid, the other party will generally not be able to sell real estate in the counties in which the judgment abstract is filed without paying the judgment.

You may also get a WRIT OF EXECUTION from the court after 21 days which orders the constable to seize certain kinds of property belonging to the defendant. Check with the court for fees.  The constable may not seize items that are exempt from execution.  The list of exempt personal property is set forth in section 42.002 of the Texas Property Code.  Non-exempt property may be sold by the constable to satisfy an unpaid judgment. This order is generally much more effective against a business than an individual because ordinarily, the majority of personal property is exempt. Therefore, it cannot be seized.

You may, through an attorney, obtain a WRIT OF GARNISHMENT from the court to garnish money the defendant may have in a bank account.  But Texas does not allow garnishment of wages.

If a defendant files bankruptcy, all efforts at the collection of the judgment must stop.  A claim must be filed in the federal bankruptcy court. You should be notified by the bankruptcy court of the filing of the bankruptcy and the steps to take to file a claim with the bankruptcy court.

Appeals

If the amount at issue, exclusive of costs, exceeds $250, either party may appeal to the county court of law for a new trial. Any appeal must be filed within 21 days after the judgment is signed or the motion for a new trial, if any, is denied.

A party may appeal in one of three ways:

1. Paying a Bond – A plaintiff must file a $500 bond.  A defendant must file a bond in an amount equal to twice the amount of the judgment.  The bond must be supported by a surety or sureties approved by the judge.

2. Paying a cash deposit to the clerk of the court in the amount of the bond; or

3. Filing a Statement of Inability to Afford Payment of Courts Costs of Appeal Bond, if the party cannot afford to furnish a bond or pay a cash deposit.

If you believe that you are entitled to a NEW TRIAL (really a retrial) in the justice court, you must request one in writing within 14 days of the date the judgment is signed If the judge does not rule on the motion for a new trial, it is automatically denied at 5:00 p.m. on the 21st day after the judgment was signed. A judge will not grant a new trial unless you convince the judge that justice was not done in the trial of the case.  Thus, you must carefully explain in the motion why the judgment is wrong.

If neither side appeals to the county court at law within 21 days of the date the judgment or order overruling a motion for a new trial is signed, the judgment becomes final. If the judgment says that the other side owes you money and he does not pay you, follow the “COLLECTING ON THE JUDGMENT” procedures outlined above.

If during the investigation, CPI believes there are dangers in the home and that the children need a safety intervention, then the case could be referred to Family Based Safety Services, which is an extrajudicial program under CPS. To avoid the risk of involuntary child removal from the home and court intervention, a family may agree to complete services that address identified safety risks under the oversight of an FBSS caseworker. 

Parents involved with FBSS often face an overbroad list of services, conflicting statements about how long CPS will be involved with their family, and devastating repercussions for not “voluntarily” participating. FDP can support parents in negotiating FBSS services, providing accountability for DFPS commitments, and mediating communication between fearful parents and FBSS caseworkers.

After an investigation by CPI is concluded, a parent will receive a letter from DFPS confirming the investigation is complete and whether an investigative disposition or finding was made. If the investigation disposition is Reason to Believe neglect or abuse occurred, then the parent will be given the option to contest this finding by requesting an ARIF within 45 days. If left unchallenged, a parent’s finding of Reason to Believe will place them on the DFPS Central Registry, often leading to collateral consequences for employment and future abilities to support DFPS-involved family members. 

FDP offers parents legal advocacy in these agency proceedings in which a DFPS employee will review the evidence – including evidence provided by the parent – to determine whether the Reason to Believe finding should be overturned.

As of September 2021, some parents whose rights were previously terminated are now able to petition the court to reinstate their parental rights. In order to be eligible, at least two years must have passed since the order terminated the parent’s rights, an appeal cannot be pending, the child cannot have been adopted, and the child cannot be the subject of an adoption placement agreement. In addition, the parent must show the court they have remedied the conditions that were grounds for the order terminating parental rights and are able to maintain their child’s health, safety, and welfare. FDP offers representation for eligible parents seeking to reinstate their parental rights.

PLEASE NOTE: This information is a summary of the subject and other pertinent matters. It should not be considered conclusive or a substitute for legal advice.