Filing Small Claims Cases
A Small Claims Case is a lawsuit brought for the recovery of money damages, personal property, or other relief allowed by law. The claim can be for no more than $10,000, including attorney fees, if any, and excluding statutory interest and court costs.
Small Claims Cases are governed by Rules 500-507 of the Rules of Practice in Justice Courts.
To begin an action in the Justice Court, the plaintiff must file Petition in writing stating the following:
(1) the name of the plaintiff;
(2) the name, address, telephone number, and fax number, if any, of the plaintiff’s attorney, if applicable, or the address, telephone number, and fax number, if any, of the plaintiff;
(3) the name, address, and telephone number, if known, of the defendant;
(4) the amount of money, if any, the plaintiff seeks;
(5) a description and claimed value of any personal property the plaintiff seeks;
(6) a description of any other relief requested;
(7) the basis for the plaintiff’s claim against the defendant; and
(8) if the plaintiff consents to email service of the answer and any other motions or pleadings, a statement consenting to email service and email contact information.
It is recommended that a plaintiff also include in the petition information showing (i) the defendant’s usual place of business or residence, or (ii) other place where the defendant can probably be found.
The plaintiff must provide to the Court enough copies of the petition to be served on each defendant. The clerk may make copies of the petition for the allowable copying cost.
Justice Court Civil Case Information Sheet
A Justice Court Civil Case Information Sheet form must be filed with the petition.
The Justice of the Peace must collect fees for the filing of a Petition in the Justice Court. Section 118.121, Texas Local Government Code governs the filing fee, and additional fees for basic civil legal services to indigents (Section 51.941, Texas Government Code) are applicable.
The Commissioners Court of Hill County sets the fee to be charged for services of the Hill County Sheriff and Constables. See Section 118.131, Texas Local Government Code.
Issuance of Citation
In order for the Justice Court to acquire jurisdiction over the defendant, the defendant must be notified of the filing of the lawsuit. When the case has been filed and the filing fee and the service fee have been paid, the clerk will issue a citation and deliver the citation as directed by the plaintiff.
The plaintiff is responsible for obtaining service of the citation. A copy of the petition is attached to the citation. The citation is directed to the defendant and informs the defendant of the filing of the petition, and warns that the defendant must timely file a written answer or a judgment by default may be rendered for the relief demanded in the petition. Rule 501.1.
Service Outside of Harris County
For citations to be served in a county other than Hill County, the constable or sheriff of that County should be contacted for the amount of the service fee and location for forwarding the citation.
Service of Citation
The citation may be served by any sheriff or constable, a process server certified under order of the Supreme Court, the clerk of the court if the citation is to be served by certified mail, or by a person who is 18 years of age or older and who is authorized by court order to serve the petition.
Citations may be served by personal delivery to the defendant, or by registered or certified mail directed to the defendant, with return receipt requested.
If attempts to serve the defendant at the defendant's usual place of business or usual place of abode or other place where the defendant can probably be found are unsuccessful, the plaintiff or the process server can ask the Court to allow service in another manner. The request for an alternative method of service must include a sworn statement describing the attempts to serve the defendant by personal delivery or certified mail, state the defendant’s usual place of residence or business, or other place where the defendant can probably be found, and describe the method of alternative service and why that method will be effective to give the defendant notice of the lawsuit. The Court may authorize service of process by mailing a copy of the citation with petition attached by first class mail and (i) by leaving a copy of the citation with anyone over 16 years of age at a specified location, or (ii) in the manner requested if it is reasonably effective to give the defendant notice of the lawsuit. Rule 501.2.
When the defendant has been served with citation, the defendant must file a written answer to the plaintiff's petition. The answer is due by the end of the 14th day after the day the defendant was served with citation, but if the 14th day is a Saturday, Sunday, or legal holiday, the answer is due on the next day that is not a Saturday, Sunday, or legal holiday; and if the 14th day falls on a day during which the Court is closed before 5:00 p.m., the answer is due on the Court’s next business day. Rule 502.5
No judgment may be rendered against a defendant unless the defendant has been properly served with process. Defendants may be natural persons, individuals, or persons doing business in the form of sole proprietorships, or partnerships, or corporations. Any individual doing business under an assumed name, or any business operating in the form of a partnership or corporation, may sue or be sued in the business name, but service of process must be properly accomplished.
The legal nature of the defendant determines how a citation is to be directed and upon whom the citation is to be served.
Service of process directed to an individual is effected by delivery of the citation directly to the person.
Service of process directed to a sole proprietorship is effected by delivery of the citation to the owner of the business.
A partnership may be served by serving at least one member of the partnership and service on that one member authorizes a judgment against the partnership and the partner actually served. See Section 17.022, Texas Civil Practice and Remedies Code. Only partners served can be held personally liable.
If several partners are jointly indebted under a contract and the citation has been served on at least one but not all of the partners, judgment may be rendered only against the partnership and against the partner who was actually served. No personal judgment or execution may be had against any partner who was not served. See Section 31.033, Texas Civil Practice and Remedies Code.
If defendant is a limited partnership, each general partner and the registered agent of a limited partnership may be served with citation in order to effect service of process. See Section 153.102, Texas Business Organizations Code. See also Section 5.255, Texas Business Organizations Code.
A corporation may be served by serving its registered agent, or its president or any of its vice-presidents. If the corporation’s registered agent cannot be found at the registered office, then service of process may be made on the Secretary of State. See Section 5.255, Texas Business Organizations Code.
Citation directed to a limited liability partnership (LLP) is directed to the registered agent or a general partner. See Section 152.801(e)(3), Texas Business Organizations Code.
Citation directed to a limited liability company (LLC) is directed to the registered agent or manager, or a member of the company, as appropriate. See Section 5.255, Texas Business Organizations Code.
If the defendant is a financial institution, the registered agent of the financial institution, or in the absence of a registered agent, the president or branch manager at any office of the financial institution located in this state may be served. See Sec. 17.028, Texas Civil Practice and Remedies Code.
If the defendant is a credit union organized under the laws of this state, another state, or federal law, the registered agent of the credit union or the president or vice president in the absence of such an agent may be served. See Section 17.028 of the Texas Civil Practice and Remedies Code.
"Venue" is the proper county and Justice of the Peace precinct in which the Justice Court may exercise its jurisdiction. As a general rule, a suit in Justice Court must be brought in the county and in the Justice of the Peace precinct in which the defendant resides; in the county and Justice of the Peace precinct where the incident that gave rise to the claim occurred; the county and Justice of the Peace precinct where the contract, if any, that gave rise to the claim was to be performed; or the county and Justice of the Peace precinct where the property is located if the suit is to recover personal property. Rule 502.4.
If there is more than one Justice of the Peace within a precinct, the plaintiff may bring suit in any of the Justice Courts within the precinct. See Section 15.099, Texas Civil Practice and Remedies Code.
Laws relating to venue in the Justice Courts are found in Chapter 15, Subchapter E (Suits Brought in Justice Court), Texas Civil Practice and Remedies Code.
Motion to Transfer Venue
If a plaintiff files suit in an improper venue, the defendant may file a motion to transfer venue. The motion must be filed before trial, but no later than 21 days after the day the defendant’s answer is filed. This request must contain a sworn statement that the venue chosen by the plaintiff is improper and must name the specific county and precinct of proper venue to which the transfer is sought. Rule 502.4
Fair Trial Venue Change
If a party believes that a fair trial in a specific precinct or before a specific judge is not possible, the party may file a sworn motion stating that fact and further specifying whether the party wants a change of place for trial or a change of judge. The motion must be supported by the sworn statements of two other credible persons. This motion must be filed no less than 7 days before trial. If a party wants a change of location, the case will be transferred to the nearest Justice Court in the county. If the party wants a change of judge, the judge will exchange benches with another Justice of the Peace. Rule 502.4.
Transfer of Venue by Consent
If all of the parties consent, in writing, and file the consent with the Court, venue will be transferred to the Justice Court designated by the parties as the place of proper venue. Rule 502.4.
Failure to Appear
If a defendant who has been served properly with citation does not file a written answer as required by the citation, the judge will proceed to render a default judgment in the following manner:
(1) if the plaintiff's claim is based on a written document signed by the defendant, a copy of which was served on the defendant along with a sworn statement that the claim is owed and all payments, offsets or credits due to the defendant have been accounted for, the judge will render judgment in favor of the plaintiff without a hearing;
(2) in all other cases, following a request for hearing by the plaintiff, and evidence of damages, the judge will render judgment in the amount proven by plaintiff. If plaintiff is unable to prove damages, the judge will render judgment in favor of the defendant. Rule 503.1.
Certificate of Last Known Address
The plaintiff requesting a default judgment must file a Certificate of Last Known Address certifying to the Court the last known mailing address of the party against whom the default judgment is taken, so that the Court can notify the defendant of the entry of the judgment. Rule 503.1.
Military Status Affidavit
The Servicemembers Civil Relief Act, 50 U.S.C. App. 501 et seq, passed December 19, 2003, requires the plaintiff in any civil proceeding in which the defendant does not make an appearance to file with the court a Military Service Affidavit stating whether or not the defendant is in military service and showing necessary facts to support the affidavit; or if the plaintiff is unable to determine whether or not the defendant is in military service, stating that the plaintiff is unable to determine whether or not the defendant is in military service.
The Department of Defense maintains a website for issues pertaining to the Servicemember's Civil Relief Act at https://www.dmdc.osd.mil/scra/owa/home.
Pleadings and Motions Must be Written
Every pleading, motion, application for a court order, or other request to the court, must be in writing and signed by the party or the party’s attorney and filed with the court. Documents may be filed with the court by personal or commercial delivery, by mail, or electronically if allowed by the court. Rule 502.1.
Service of Papers (other than Citation)
Every notice, and every pleading, motion, application for court order, or other request to the court, must be served on all other parties: (1) in person to the party to be served, or the party’s attorney of record or authorized agent, (2) by certified mail or courier delivery to the party’s last known address, (3) by fax to the party’s current fax number, (4) by e-mail if the party has consented to e-mail service in writing, or (5) in any other manner directed by the court. Service by certified mail is complete when the document is properly addressed and deposited in the mail with postage prepaid. Service by fax or e-mail after 5:00 p.m. is deemed to have been served on the following day. Documents other than a citation may be served by a party, the party’s attorney of record, a sheriff or constable, or by any other person competent to testify. Persons who have personal knowledge are competent to testify. Children and persons who are mentally incompetent are not competent to testify. Rule 601 et seq, Texas Rules of Evidence.
If a document is served by mail, the length of time a party has to respond to the document is extended by 3 days. Rule 501.4.
Service of Notice of Hearing
Notice of any hearing requested by a party must be served on all other parties not less than 3 days before the time specified for the hearing. Rule 501.4.
Certificate of Service
A certificate of service must be included on all documents filed with the court. The certificate of service must describe the manner in which the document was served on opposing parties and the date of service. A certificate signed by a party or the party’s attorney of record, or a return signed by a sheriff or constable showing service on the opposing parties is proof of service. A sworn statement must be included in the certificate of service made by any other person serving documents on opposing parties. Rule 501.4.
Computation of Time; Timely Filing
To compute a time period under the Rules of Practice in Justice Courts, you must: (1) exclude the day of the event that begins the period; (2) count every day, including Saturdays, Sundays, and legal holidays; and (3) include the last day of the period. If the last day of the period is a Saturday, Sunday, or legal holiday, the time period is extended to the next day that is not a Saturday, Sunday, or legal holiday; and if the last day for filing falls on a day during which the court is closed before 5:00 p.m., the time period is extended to the court’s next business day.
A document is considered timely filed if the document is deposited in the United States mail on or before the date the document is required to be filed and is received by the court within 10 days of the due date. The legible Postal Service postmark is evidence of the date of mailing. Rule 500.5.
Judge to Develop the Case
In order to develop the facts of the case in Justice Court, the judge may question a witness or a party and may summon any person or party to appear as a witness when the judge considers such action necessary to insure a correct judgment and a speedy disposition. Rule 500.6.
Discovery is the process through which parties obtain information from each other in order to prepare for trial. In Justice Courts, pretrial discovery is limited to that which the judge considers reasonable and necessary. No request for discovery may be served on an opposing party without permission of the court. The party asking for discovery must first present a written motion to the court and serve a copy of the motion on the responding party. Unless a hearing is requested, the judge may rule on the motion without a hearing. If the discovery request is approved, the judge will issue a signed order and the party seeking discovery may proceed to serve the discovery on the responding party.
Failure to comply with a discovery order can result in sanctions, which may include dismissing the case or the issuance of an order to pay an opposing party’s discovery expenses. Rule 500.9.
A party may file a sworn motion for summary disposition of all or part of a claim or defense without a trial. The motion must include all facts in support of the party’s position and all documents on which the party relies must be attached. The court will grant the motion (1) if there are no genuinely disputed facts that would prevent a judgment in favor of the party; (2) there is no evidence of one or more essential elements of a defense which the defendant must prove to defeat the plaintiff’s claim; or (3) there is no evidence of one or more essential elements of the plaintiff’s claim.
The party opposing the motion may file a written response.
The motion must be on file for at least 14 days before the hearing. At the hearing, the judge may consider evidence offered by the parties. The judge may decide the motion and any response without a hearing if all parties agree.
The judge may enter judgment as to the entire case or may specify the facts that are established and direct such further proceedings in the case as are just. Rule 503.2
After all parties have appeared in the lawsuit, the court may set a case for a pretrial conference at which the following issues may be decided:
(2) the amendment or clarification of pleadings;
(3) the admission of facts and documents to streamline the trial process;
(4) a limitation on the number of witnesses at trial;
(5) the identification of facts, if any, which are not in dispute between the parties;
(6) mediation or other alternative dispute resolution services;
(7) the possibility of settlement;
(8) trial setting dates that are amenable to the court and all parties;
(9) the appointment of interpreters, if needed;
(10) the application of a Rule of Civil Procedure not in Part V, Rules of Practice in Justice Courts, or a Rule of Evidence; and
(11) any other issue that the court deems appropriate. Rule 503.4.
Any party is entitled to a jury trial. A written demand for a jury trial must be filed no later than 14 days before the date a case is set for trial. At the same time that the demand is filed, the jury fee in the amount of $22.00 must be paid.
If a party withdraws the jury demand, the case will remain on the jury docket unless all other parties agree to try the case without a jury. There is no refund of a jury fee. Rule 504.1.
A party requesting that a trial be postponed must file a written motion stating why a postponement is necessary. If the judge finds good cause for the postponement, the judge may continue the case for a reasonable time. Rule 503.3.
When the case has been tried, either by a jury or by the judge, the judge will announce the decision in open court and will render a judgment. The judgment, if appropriate, will direct the issuance of such process as may be necessary to carry the judgment into execution.
If the judgment includes the recovery of specific articles, the value of the article must be separately assessed. The judgment will direct the plaintiff to recover the article, if it can be found, and if not, then the plaintiff will recover the value of the article. Rule 505.1.
Motion to Set Aside, Motion to Reinstate, and Motion for New Trial
A party may request the court to reinstate a case after dismissal, to set aside a default judgment, or to grant a motion for new trial by filing a motion no later than 14 days after the judgment was signed. The motion must be served on the opposing parties no later than the next business day. The court may reinstate a case or set asdie a judgment for good cause. The court may grant a new trial upon a showing that justice was not done in the trial of the case.
If the judge has not ruled on a motion to reinstate the case, to set aside the judgment, or to grant a new trial, the motion is automatically denied at 5:00 p.m. on the 21st day after the date the judgment was signed. Rule 505.3.
Right to Appeal
Within 21 days from the date of judgment or the date the motion to reinstate a case, the motion to set aside the judgment or the motion for new trial is granted or denied or overruled by operation of law, a party may appeal by filing a bond, making a cash deposit, or filing a sworn statement of inability to pay with the Justice Court.
Bond. A plaintiff-appellant who is appealing must file a bond in the amount of $500.00. A defendant-appellant who is appealing 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, be payable to the appellee and must be conditioned on the appellant’s prosecution of the appeal to effect and payment of any judgment and all costs rendered against the appellant on appeal. The appellant must serve written notice of the appeal on all other parties within 7 days of filing the bond.
Cash Deposit in Lieu of Bond. Instead of filing a bond, an appellant may deposit with the Justice Court cash in the amount of the bond. The deposit must be payable to the appellee and must be conditioned on the appellant’s prosecution of the appeal to effect and the payment of any judgment and all costs rendered against the appellant on appeal. The appellant must serve written notice of the appeal on all other parties within 7 days of making the cash deposit.
Sworn Statement of Inability to Pay. If an appellant cannot furnish a bond or make a cash deposit, the appellant may instead file a Sworn Statement of Inability to Pay containing complete information as to the appellant’s identity, nature and amount of governmental entitlement income, nature and amount of employment income, other income (interest, dividends, etc.), spouse’s income if available, property owned (other than homestead), cash or checking account, dependents, debts, and monthly expenses. The statement must contain the following: “I am unable to pay court fees. I verify that the statements made in this statement are true and correct.” The statement must be sworn before a notary public or other officer authorized to administer oaths or be signed under penalty of perjury. The court will provide notice of the filing of a Statement of Inability to Pay to all other parties no later than the next business day.
Contest of Sworn Statement of Inability to Pay. Within 7 days after the opposing party (appellee) receives notice of the filing of the Statement of Inability to Pay, the appellee may contest the Statement but only if (i) there is no IOLTA certificate attached or (ii) the Statement does not attest to the receipt of government entitlements based on indigence. If the Sworn Statement of Inability to Pay is contested, the judge will hold a hearing. The burden is on the party filing the Sworn Statement of Inability to Pay to prove that party’s inability to furnish a bond or make a cash deposit in order to appeal.
If the contest is sustained, the appellant may appeal the decision on the contest to the County Civil Courts at Law by filing a notice of appeal of decision on the contest within 7 days of the court’s written order. The Justice Court will forward the documents related to the contest to the County Civil Courts at Law for resolution. Within 14 days, the contest will be heard de novo by the County Civil Courts at Law. If the appeal by filing the Statement of Inability to Pay is allowed, the County Civil Courts at Law will direct the Justice Court to transmit the papers in the case. If the contest is sustained in the County Civil Courts at Law, the appellant must return to the Justice Court to post an appeal bond or make a cash deposit within 5 days.
When the appeal has been perfected by the filing of a bond or making a cash deposit in lieu of bond, and the transcript has been sent to the County Civil Courts at Law, the party appealing will be notified by the County Clerk to pay the costs on appeal to the County Civil Courts at Law. The appellant must pay the costs on appeal within twenty (20) days after being notified to do so or the County Clerk will return all of the papers to the Justice Court and the party in whose favor the judgment was rendered may then proceed to collect the judgment. See Rule 143a, Texas Rules of Civil Procedure.
Hearing on Appeal
Once the appeal to County Civil Courts at Law has been perfected, the Justice Court judgment becomes a nullity, and the County Civil Courts at Law must try the case "de novo," or over again as if there had been no previous trial. Rule 506.3