Filing Suit in Small Claims Court

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 small claims courts.

A small claims court is a judicial forum for civil cases involving claims for MONEY ONLY in amounts of $10,000 or less. The small claims court cannot order someone to return, replace, or repair property; to do some act; or to refrain from doing some act.

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 he might counter-file. It may not be wise to sue someone for $100 if that person could prove that you owe him/her $200.

Determine when your cause of action arose. The time within which you must file suit — or lose your claim — is governed by law. In small claims court, the statute of limitations is two years. If you do not file within that time period, you will probably lose your opportunity to file a claim.

Who May Sue or Be Sued?
Any person over the age of 18 years may sue in small claims court. A minor may use the court by having a parent, relative, or “next friend” over the age of 18 go with him/her to file a claim and later go with him/her to the trial.

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.

The court has the power to enter judgment against the defendant if he is present in the state of Texas or makes his permanent home in the state. In the case of a business entity, it must have done business with you in the county in which you sue.

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 the local telephone directory. A small claim is normally filed in the court of the precinct which covers the area where the defendant lives. There are some exceptions to this such as when the defendant lives in one county but has contracted to provide services in another, in which case either location may be chosen.

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 small claims court will provide you with a petition in which to state your claim. The clerk will accept your fee and give you a receipt. Check with your local justice of the peace precinct for current fees. If you cannot afford the fee, ask the clerk of the court about a pauper’s affidavit.

Most cases are heard by the judge. However, either side may ask that a jury hear the case. This request must be made no later than one day before the case is set for trial. The fee for jury trial is $5.

Give the clerk the following information:

  1. Your complete name, address(es), and phone number(s).
  2. The complete name and address of each person or business your claim is against. Determine this before going to the clerk; 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.
  3. The exact amount of money your claim is for.
  4. The basis of your claim, stated plainly and without technicalities, including the date your claim arose.

You will be asked to swear that the content of your petition is true.

Tell the clerk where the defendant may be found and when he is likely to be there. Once a plaintiff has filed a petition, a constable delivers a citation (notice that a lawsuit has been filed) to the defendant. The defendant must be served a citation before the suit can commence.

Call the clerk in 10 to 14 days to make sure the defendant has been served, and find out the exact date he was served. Some courts will mail you a postcard which contains this information. The date of service is important because it must be used to calculate the date by which the defendant must answer the court. If the defendant has not been served within 90 days, the plaintiff must ask the clerk to have a new citation issued.

Calculate the appearance date as follows: Start counting from the first day after the date of service (when the constable delivered the notice to the defendant ) and count forward 10 days including weekends and holidays.

The Monday following the expiration of the 10 days at 10:00 a.m. is the deadline for the defendant to answer the court. If that Monday falls on a legal holiday, the answer date is the next day. Verify this date with the clerk.

If the defendant does not answer or appear in court, the plaintiff can then call to make an appointment to obtain a judgment by default against the defendant. The plaintiff should come to the default judgment hearing fully prepared to present all his evidence to the court.

If the defendant believes that he has a good defense against the default judgment, the court should be contacted IMMEDIATELY. A defendant can ask that a default judgment against him/her be set aside and a new trial granted by filing a written request with the court within five days from the date the default judgment is signed.

The date the defendant answers the court is generally not the date of the trial. Check with the clerk to determine when the trial will be held. Some courts send a notice to all parties advising them of the trial setting. On that date, BRING WITH YOU TO THE COURT any evidence of your claim — such as receipts, invoices, cancelled checks, and correspondence — and any witnesses who will testify on your behalf. DO NOT BE LATE!

It is perfectly acceptable to try and “work something out” with the other side, but it is still best for the defendant to answer the court in case the negotiations fall through and the plaintiff still wants to go to court.

Counterclaims
If a defendant has a claim of damage or liability (responsibility) against the plaintiff, the defendant can file a counterclaim against the plaintiff in the small claims court under the same suit the plaintiff originally filed. The defendant may send the counterclaim to the plaintiff by certified mail with return receipt requested. Save a copy of the counterclaim and the receipt for your records. If the defendant has the constable serve the other party (just as the defendant was served), there will be a fee for service. Check with the court to determine if it charges a separate filing fee and/or fee for service.

If the defendant files a counterclaim, the defendant has “the burden of proof” to convince the judge or jury that the defendant should win. If the evidence in the defendant’s favor is only equal to and not greater than the evidence in favor of the plaintiff, the defendant will lose on that counterclaim.

Preparing for Court
Small claims court is designed to be accessible to the layperson. For this reason, technical rules of evidence and civil procedure are not applicable as 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. If the judge or jury thinks the evidence is equal, the plaintiff may lose.

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

Bring your witnesses and records to court for the hearing. If witnesses will not come voluntarily, the court will subpoena (order) them to appear if requested. If the court must deliver the subpoena, there will be a fixed cost plus a $1-fee in cash. In some circumstances, the court will allow a disinterested party to serve the subpoena for $1. Please contact the court 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.

  1. A continuance will generally be granted when the other party notifies the court by telephone that he agrees to the postponement.
  2. If the other party will not agree to a postponement, you must make a MOTION (request in writing) for continuance. Your written request must include a sworn statement (notarized affidavit) explaining why you cannot go to trial. A hearing may be ordered by the court to determine if the delay should be granted.
  3. 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 Spanish or deaf interpreter, tell the clerk several days before trial.

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 his 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 based on the sworn testimony presented in court on the day of the trial. DO NOT tell the judge you have witnesses not present or papers at home that would support your side.

Address your statement to the JUDGE or JURY, not to the other side. Do not interrupt the judge and always address him/her respectfully: “Your Honor.” After both sides have concluded, the judge will enter a JUDGMENT as to who wins and what amount he is entitled to. You may ask for a copy of the judgment in writing. If the judge takes the case “under advisement” it means that he is withholding a decision. 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.

If the defendant does not pay the money ordered by the court, the plaintiff may go back to the court 10 days from the date the judgment was made. If the defendant has not appealed the case to the county court at law or asked the judge for a retrial, the plaintiff may take the steps to have the court assist him/her in collecting on the judgment.

Collecting on the Judgment
Ten days from the date of the judgment, you may get a copy or an abstract of the judgment from the small claims court and file it with the county clerk’s deed 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. The fee for recording the abstracts is subject to change. Check with your local JP court for current amounts.

You may also get a WRIT OF EXECUTION from the court after 30 days which orders the constable to seize certain kinds of property belonging to the defendant. Check with the court for fees. Most luxury items such as TVs, stereos, radios, cameras, and second cars are subject to execution. This 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 which attaches the defendant’s assets in the amount of the unpaid judgment. There is no garnishment of wages for debt collection in Texas.

If a defendant is bankrupt, a claim must be made in the federal bankruptcy court. Contact the clerk of the small claims court to see if he has on file the formal case (cause) number for the bankruptcy. Your next step would be to check with an attorney on rights and remedies with regard to bankruptcy claims.

Appeals
If the amount of issue, exclusive of costs, exceeds $250, either party may appeal to the county court at law for a new trial. To appeal, you must post a BOND with the JP court within 10 days from the date of the judgment or order overruling a motion for new trial or file an affidavit of inability to pay costs of appeal within five days from the date of judgment or order overruling a motion for new trial. Check with the court for the cost of an appeal.

If you believe that you are entitled to a NEW TRIAL (really a retrial) in the JP court, you must request one in writing within five days of the judgment. These deadlines cannot be extended. Do not expect to be granted a new trial unless your written request states facts showing that “justice has not been done in the trial.”

If neither side appeals to the county court at law within 10 days of the judgment or order overruling a motion for new trial, it 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.

The information in this brochure is a summary of the subject and other pertinent matters. It should not be considered conclusive or a substitute for legal advice. Unique facts can render broad statements inapplicable. Anyone needing legal assistance should contact an attorney.

Austin Tenants’ Council • 1640-B East 2nd Street • Austin, TX 78702 • 512.474.7006