§ 30.1Justice Courts in General
Collection cases filed in justice courts can provide attorneys an opportunity to have their causes of action heard more timely and resolved less expensively than in the county or district courts where there is competition for hearings on motions and trial time with many high-dollar, more complex cases.
The legislature in 2011 extensively revised the rules governing justice courts, effective September 2013. See Acts 2011, 82d Leg., 1st C.S., ch. 3, § 5.06 (HB 79), eff. Sept. 1, 2013. Rules 500–510 of the Texas Rules of Civil Procedure now govern all civil cases filed in justice courts. See Tex. R. Civ. P. 500.3.
Tex. R. Civ. P. 500.3 describes four types of justice court cases to which the rules apply: small claims cases, debt claim cases, repair and remedy cases, and eviction cases. A collection case is generally filed either as a small claims case or as a debt claim case.
Small Claims Cases: A small claims case is a lawsuit brought for the recovery of money damages, civil penalties, personal property, or other relief allowed by law. The claim can be for no more than $10,000, excluding statutory interest and court costs but including attorney’s fees, if any. Tex. R. Civ. P. 500.3(a).
Debt Claim Cases: Debt claims cases are defined as claims for the recovery of a debt brought by an assignee of a claim, a financial institution, a debt collector or collection agency, or a person or entity primarily engaged in the business of lending money at interest. The claim can be for no more than $10,000, excluding statutory interest and court costs but including attorney fees, if any. Tex. R. Civ. P. 500.3(b); see also Tex. R. Civ. P. 508.1. Those collection cases not covered by the debt claim definition would be filed as small claims cases. Debt claims cases do not include all suits making a claim for payment of a debt owed. Generally, most credit card cases would be filed as debt claim cases while money owed to individuals not normally engaged in the practice of lending money would be filed as small claim cases.
Repair and Remedy Cases: A repair and remedy case is a lawsuit filed by a residential tenant under chapter 92, Subchapter B, of the Texas Property Code to enforce the landlord’s duty to repair or remedy a condition materially affecting the physical health or safety of an ordinary tenant. The relief sought can be for no more than $10,000, excluding statutory interest and court costs but including attorney fees, if any. Tex. R. Civ. P. 500.3(c). Repair and remedy cases are beyond the scope of this manual.
Eviction Cases: An eviction case is a lawsuit brought to recover possession of real property under chapter 24 of the Texas Property Code, often by a landlord against a tenant. A claim for rent may be joined with an eviction case if the amount of rent due and unpaid is not more than $10,000, excluding statutory interest and court costs but including attorney fees, if any. Tex. R. Civ. P. 500.3(d). See section 28.21 in this manual for general information about evictions and sections 28.26–.30 for procedures for evictions in justice courts.
§ 30.1:2Application of Other Rules
The other Rules of Civil Procedure and the Rules of Evidence do not apply except when (1) the judge hearing the case determines that a particular rule must be followed to ensure that the proceedings are fair to all parties, or (2) otherwise specifically provided by law or these rules. Tex. R. Civ. P. 500.3(e).
§ 30.1:3Computation of Time; Timely Filing
To compute a time period under Tex. R. Civ. P. 500–510:
1.exclude the day of the event that triggers the period;
2.count every day, including Saturdays, Sundays, and legal holidays; and
3.include the last day of the period, but
a.if the last day 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
b.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.
Tex. R. Civ. P. 500.5(a). Any document required to be filed by a given date is considered timely filed if deposited in the U.S. mail on or before that date and received within ten days of the due date. A legible postmark affixed by the United States Postal Service is evidence of the date of mailing. Tex. R. Civ. P. 500.5(b). A judge may, for good cause shown, extend any time period under rules 500–510 except those relating to new trial and appeal. Tex. R. Civ. P. 500.5(c).
Currently, the statutory limit for cases filed in justice courts is $10,000. See Tex. R. Civ. P. 500.3. Practitioners should be mindful that this jurisdictional ceiling is inclusive of attorney’s fees. Therefore, if an attorney seeks an award of attorney’s fees and the amount in controversy is very close to this jurisdictional limit, it may be more prudent to file the case in county or district court. Additionally, it is well settled under Texas law that a party may not have jurisdiction conferred by petitioning the court to award an amount less than the amount in controversy to keep the case within the justice court’s jurisdiction. See Rodney R. Elkins & Co. v. Immanivong, 406 S.W.3d 777, 780 (Tex. App.—Dallas 2013, no pet.); Bakery Equipment & Service Co., Inc., v. Aztec Equipment Co., 582 S.W.2d 870, 873 (Tex. Civ. App.—San Antonio 1979, no writ) (citing Gordon v. Carver, 409 S.W.2d 878, 879 (Tex. Civ. App.—Amarillo 1966, no writ)). For example, if a party is truly owed $11,000, that party may not reduce the debt to $10,000 in order to confer jurisdiction on the justice court.
In considering a party’s plea to the jurisdiction alleging the amount in controversy is beyond the jurisdiction of the justice court, the judge will first look at the petition and attached affidavits, and, if the petition does not affirmatively demonstrate the absence of jurisdiction, it will be liberally construed in favor of jurisdiction. Garza v. Chavarria, 155 S.W.3d 252, 256 (Tex. App.—El Paso 2004, no pet.). If the original petition is within the court’s jurisdictional limits, but an amendment increases the amount in controversy above the jurisdictional limits, the court continues to have jurisdiction if the additional amount accrued because of the passage of time. Continental Coffee Products Co. v. Cazarez, 937 S.W.2d 444, 449 (Tex. 1996). A motion to dismiss for lack of jurisdiction will fail unless the debtor proves that the creditor’s pleading as to the amount in controversy was merely a sham for the purpose of wrongfully obtaining jurisdiction or that the amount in controversy did not fall within the court’s jurisdictional limits when filed. Rodney R. Elkins & Co., 406 S.W.3d at 780.
Once the collection practitioner has determined that jurisdiction would be appropriate in a justice court, the proper court must be selected. There are 254 counties in Texas, each with at least one justice of the peace.
Proper venue for justice courts is set forth in Tex. R. Civ. P. 502.4 and Tex. Civ. Prac. & Rem. Code §§ 15.081–.100. Generally, a defendant in a small claims case as described in Tex. R. Civ. P. 500.3(a) or a debt claim case as described in Tex. R. Civ. P. 500.3(b) is entitled to be sued in one of the following venues:
1.The county and precinct where the defendant resides.
2.The county and precinct where the incident or the majority of incidents that gave rise to the claim occurred.
3.The county and precinct where the contract or agreement, if any, that gave rise to the claim was to be performed.
4.The county and precinct where the property is located, in a suit to recover personal property.
Tex. R. Civ. P. 502.4(b). If the defendant is a nonresident of Texas or if the defendant’s residence is unknown, the plaintiff may file the suit in the county and precinct where the plaintiff resides. Tex. R. Civ. P. 502.4(c). See also Tex. Civ. Prac. & Rem. Code §§ 15.001–.100 for further guidance in selecting venue.
§ 30.3:1Motion to Transfer Venue
If a plaintiff files suit in an improper venue, a defendant may challenge the venue selected by filing a motion to transfer venue. The motion must be filed before trial, no later than twenty-one days after the day the defendant’s answer is filed. Unlike in district and county courts, it does not have to be filed prior to or contemporaneous with an original answer. See Tex. R. Civ. P. 86. The motion must contain a sworn statement that the venue chosen by the plaintiff is improper and state the specific county and precinct of proper venue to which transfer is sought. If the defendant fails to name a county and precinct, the court must instruct the defendant to do so and allow the defendant seven days to cure the defect. If the defendant fails to correct the defect, the motion will be denied, and the case will proceed in the county and precinct where it was originally filed. Tex. R. Civ. P. 502.4(d).
If a defendant files a motion to transfer venue, the judge must set a hearing on the motion. A plaintiff may file a response to a defendant’s motion to transfer venue. The parties may present evidence at the hearing. A witness may testify at a hearing, either in person or with permission of the court, by means of telephone or an electronic communication system. If the motion is granted, the judge must sign an order designating the court to which the case will be transferred. If the motion is denied, the case will be heard in the court in which the plaintiff initially filed suit. Motions for rehearing and interlocutory appeals of the judge’s ruling on venue are not permitted. No trial may be held until at least the fourteenth day after the judge’s ruling on the motion to transfer venue. An order granting a motion to transfer venue must state the reason for the transfer and the name of the court to which the transfer is made. Tex. R. Civ. P. 502.4(d)(1)(A)–(F).
When such an order of transfer is made, the judge who issued the order must immediately make out a true and correct transcript of all the entries made on the docket in the case, certify the transcript, and send the transcript, with a certified copy of the bill of costs and the original papers in the case, to the court in the precinct to which the case has been transferred. The court receiving the case must then notify the plaintiff that the case has been received and, if the case is transferred to a different county, that the plaintiff has fourteen days after receiving the notice to pay the filing fee in the new court or file a statement of inability to afford payment of court costs. The plaintiff is not entitled to a refund of any fees already paid. Failure to pay the fee or file a statement will result in dismissal of the case without prejudice. Tex. R. Civ. P. 502.4(d)(1)(G).
Fair Trial Venue Change: If a party believes it cannot get a fair trial in a specific precinct or before a specific judge, the party may file a sworn motion stating that, supported by the sworn statements of two other credible persons, and specifying if the party is requesting a change of location or a change of judge. Except for good cause shown, this motion must be filed no less than seven days before trial. If the party seeks a change of judge, the judge must exchange benches with another qualified justice of the peace, or, if no judge is available to exchange benches, the county judge must appoint a visiting judge to hear the case. If the party seeks a change in location, the case must be transferred to the nearest justice court in the county that is not subject to the same or some other disqualification. If there is only one justice of the peace precinct in the county, the judge must exchange benches with another qualified justice of the peace, or, if no judge is available to exchange benches, the county judge must appoint a visiting judge to hear the case. In cases where exclusive jurisdiction is within a specific precinct, as in eviction cases, the only remedy available is a change of judge. A party may apply for relief under this rule only one time in any given lawsuit. Tex. R. Civ. P. 502.4(e).
Transfer of Venue by Consent: On the written consent of all parties or their attorneys, filed with the court, venue must be transferred to the court of any other justice of the peace of the county or any other county. Tex. R. Civ. P. 502.4(f).
Judgment Valid Where Venue Not Contested: If no objection to venue is raised, a final judgment entered against a defendant residing in a county other than the county where the transaction arose would be a valid judgment. However, under the Fair Credit Reporting Act, a debt collector might exercise caution in suing defendants outside their place of residence. See section 15.15:4 in this manual for a discussion of venue rules under the Fair Credit Reporting Act.
§ 30.4Representation in Justice Courts
An individual in a justice court may represent himself, be represented by an authorized agent in an eviction case, or be represented by an attorney. Tex. R. Civ. P. 500.4(a). Additionally, unique to justice courts, pro se litigants may for good cause be “assisted” in justice courts by nonlawyers, such as family members or other individuals. Tex. R. Civ. P. 500.4(c). The intent of this 2013 change would be to make some reasonable accommodation in justice courts such as permitting an elderly and infirm party to be assisted by their children or a fairly young and/or unsophisticated party to be assisted by their older siblings or parents or friends. These pro se assistants may not receive compensation and the judge has broad discretion as a gatekeeper in these matters to permit, deny, or limit the representation. See Tex. R. Civ. P. 500.4(c). A nonlawyer who attempts to assist a litigant for a fee may face unauthorized practice of law charges. See Tex. Penal Code §§ 38.122–.123.
§ 30.4:2Corporations and Other Entities
Corporations no longer need to be represented by counsel. A corporation or other entity may now be represented by an employee, owner, officer, or partner of the entity who is not an attorney; a property manager or other authorized agent in an eviction case; or an attorney. Tex. R. Civ. P. 500.4(b). A prudent and cautious judge might request proof of authority for an officer or senior employee to act on behalf of the corporation, such as corporate minutes or a letter of authority signed by the president.
The general requirements for petitions in justice courts are set forth in Tex. R. Civ. P. 502.2. An initial petition must contain—
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 e-mail service of the answer and any other motions or pleadings, a statement consenting to e-mail service and e-mail contact information.
Except for oral motions made during trial or when all parties are present, every pleading, plea, motion, application to the court for an order, or other form of request must be written and signed by the party or its attorney and must be filed with the court. A document may be filed with the court by personal or commercial delivery, by mail, or electronically, if the court allows electronic filing. Electronic filing is governed by Tex. R. Civ. P. 21. Tex. R. Civ. P. 502.1.
§ 30.5:2Petitions in Debt Claims Cases
Petitions in debt claims cases, in addition to the general information required by Tex. R. Civ. P. 502.2, must contain the following information in accordance with rule 508.2.
Credit Accounts: In a claim based on a credit card, revolving credit, or open account, the petition must state—
1.the account name or credit card name;
2.the account number (which may be masked);
3.the date of issue or origination of the account, if known;
4.the date of charge-off or breach of the account, if known;
5.the amount owed as of a date certain; and
6.whether the plaintiff seeks ongoing interest.
Personal and Business Loans: In a claim based on a promissory note or other promise to pay a specific amount as of a date certain, the petition must state—
1.the date and amount of the original loan;
2.whether the repayment of the debt was accelerated, if known;
3.the date final payment was due;
4.the amount due as of the final payment date;
5.the amount owed as of a date certain; and
6.whether plaintiff seeks ongoing interest.
Ongoing Interest: If a plaintiff seeks ongoing interest, the petition must state—
1.the effective interest rate claimed;
2.whether the interest rate is based on contract or statute; and
3.the dollar amount of interest claimed as of a date certain.
Assigned Debt: If the debt that is the subject of the claim has been assigned or transferred, the petition must state—
1.that the debt claim has been transferred or assigned;
2.the date of the transfer or assignment;
3.the name of any prior holders of the debt; and
4.the name or a description of the original creditor.
Tex. R. Civ. P. 508.2(a). Small claims case petitions require less information than debt claim cases. See section 30.5:1 above.
Practice Note: Attach any underlying written agreements with the debtor as exhibits to the petition, along with a sworn statement from the plaintiff that the documents are true and accurate copies, the relief sought is owed, and all payments, offsets, or credits due to the defendant are accounted for. These steps will support default judgment for a debt claim case in the event the defendant fails to answer. See section 30.10:1 below.
A party may withdraw something from or add something to a pleading, as long as the amended pleading is filed and served as provided by Tex. R. Civ. P. 501.4 not less than seven days before trial. The court may allow a pleading to be amended less than seven days before trial if the amendment will not operate as a surprise to the opposing party. Tex. R. Civ. P. 502.7(a).
The plaintiff is responsible for obtaining service on the defendant of the citation and a copy of the petition with any documents filed with the petition. Tex. R. Civ. P. 501.1(a). The citation must include the following notice in boldface type:
“You have been sued. You may employ an attorney to help you in defending against this lawsuit. But you are not required to employ an attorney. You or your attorney must file an answer with the court. Your answer is due by the end of the 14th day after the day you were served with these papers. If the 14th day is a Saturday, Sunday, or legal holiday, your answer is due by the end of the first day following the 14th day that is not a Saturday, Sunday, or legal holiday. Do not ignore these papers. If you do not file an answer by the due date, a default judgment may be taken against you. For further information, consult Part V of the Texas Rules of Civil Procedure, which is available online and also at the court listed on this citation.”
Tex. R. Civ. P. 501.1(c). The plaintiff must provide enough copies to be served on each defendant. Tex. R. Civ. P. 501.1(d).
No person who is a party to or interested in the outcome of the suit may serve citation in that suit, and, unless otherwise authorized by written court order, only a sheriff or constable may serve a citation in an eviction case, a writ that requires the actual taking of possession of a person, property, or thing, or process requiring that an enforcement action be physically enforced by the person delivering the process. Other citations may be served by—
1.a sheriff or constable;
2.a process server certified under order of the supreme court;
3.the clerk of the court, if the citation is served by registered or certified mail; or
4.a person authorized by court order who is eighteen years of age or older.
Tex. R. Civ. P. 501.2(a). Citation must be served by (1) delivering a copy of the citation with a copy of the petition attached to the defendant in person, after endorsing the date of delivery on the citation, or (2) mailing a copy of the citation with a copy of the petition attached to the defendant by registered or certified mail, restricted delivery, with return receipt or electronic return receipt requested. Tex. R. Civ. P. 501.2(b). A citation cannot be served on a Sunday except in attachment, garnishment, sequestration, or distress proceedings. Tex. R. Civ. P. 501.2(d).
§ 30.6:3Alternate Service; Service by Publication
Alternative Service of Citation: If the methods under Tex. R. Civ. P. 501.2(b) are insufficient to serve the defendant, the plaintiff, the constable, the sheriff, the process server certified under order of the supreme court, or other person authorized to serve process, may make a request for alternative service. This request must include a sworn statement describing the methods attempted under rule 501.2(b) and stating the defendant’s usual place of business or residence or other place where the defendant can probably be found. The court may authorize the following types of alternative service:
1.Mailing a copy of the citation with a copy of the petition attached by first-class mail to the defendant at a specified address and also leaving a copy of the citation with petition attached at the defendant’s residence or other place where the defendant can probably be found with any person found there who is at least sixteen years of age.
2.Mailing a copy of the citation with a copy of the petition attached by first-class mail to the defendant at a specified address and also serving by any other method that the court finds is reasonably likely to provide the defendant with notice of the suit.
Service by Publication: In the event that service of citation by publication is necessary, the process is governed by the rules in county and district court. Tex. R. Civ. P. 501.2(f).
A defendant must file with the court a written answer to a lawsuit as directed by the citation and must also serve a copy of the answer on the plaintiff. The answer must contain—
1.the name of the defendant;
2.the name, address, telephone number, and fax number, if any, of the defendant’s attorney, if applicable, or the address, telephone number, and fax number, if any, of the defendant; and
3.a statement consenting to e-mail service, if the defendant consents to e-mail service, and e-mail contact information.
Tex. R. Civ. P. 502.5(a). An answer that denies all of the plaintiff’s allegations without specifying the reasons is sufficient to constitute an answer or appearance and does not bar the defendant from raising any defense at trial. Tex. R. Civ. P. 502.5(b).
The answer is due by the end of the fourteenth day after the day the defendant was served with the citation and petition. If the fourteenth 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. If the fourteenth 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. Tex. R. Civ. P. 502.5(d). If the defendant was served by publication, the answer is due by the end of the forty-second day after the day the citation was issued. Tex. R. Civ. P. 502.5(e). Computation of time and timely filing rules are addressed in Tex. R. Civ. P. 500.5. See section 30.1:3 for computation of time and timely filing rules in justice courts.
If the defendant files an answer or otherwise appears in a case before a default judgment is signed by the judge, the judge must not render a default judgment and must set the case for trial. Tex. R. Civ. P. 508.3(d).
Practice Note: Under rule 508.3(d), an unsworn general denial is sufficient to avoid a default judgment in a debt claim in justice court. However, if a debt claim suit is appealed de novo to the county court as a suit on a sworn account, the defendant’s denial will need to be under oath and specific. See section 14.21:5 in this manual.
Pretrial discovery is limited to that which the judge considers reasonable and necessary. Any requests for pretrial discovery must be presented to the court for approval by written motion. The motion must be served on the responding party. Unless a hearing is requested, the judge may rule on the motion without a hearing. Failure to comply with a discovery order can result in sanctions, including dismissal of the case or an order to pay the other party’s discovery expenses. Tex. R. Civ. P. 500.9(a).
In contrast to other trial courts, rule 500.9 prohibits plaintiffs from attaching any discovery, admissions, interrogatories, disclosures, production, depositions on written questions, or oral deposition requests to plaintiff’s petition. Some judges may be amenable to the parties’ submitting agreed orders of discovery and dispense with an oral hearing on the matter. It is a good idea to check with the clerk of the individual court to see how the court prefers to set discovery matters. Practitioners should inquire whether the judge prefers that specific proposed discovery be propounded and provided to the court in advance of a hearing or whether the judge will likely grant permission to conduct discovery without reviewing particular discovery requests in advance of their being presented to the other party. Often, judges may admonish parties conducting discovery to be sure that their discovery is easily understandable where the opposing party is acting pro se.
Subpoenas: Subpoenas may be used by parties or the judge to command a person or entity to attend and give testimony at a hearing or trial. A person may not be required by subpoena to appear in a county that is more than 150 miles from where the person resides or is served. Tex. R. Civ. P. 500.8(a). The clerk of the justice court or an attorney authorized to practice in Texas, as an officer of the court, may issue a subpoena, which must meet the requirements of rule 500.8. Tex. R. Civ. P. 500.8(b), (c). A subpoena may be served at any place within the state of Texas by any sheriff or constable of the state of Texas or by any person who is not a party and is eighteen years of age or older. If the witness is represented by an attorney of record in the proceeding, the subpoena may be served on that attorney. Proof of service must be made by filing either—
1.the witness’s signed written memorandum attached to the subpoena showing that the witness accepted the subpoena; or
2.a statement by the person who made the service stating the date, time, and manner of service and the name of the person served.
Tex. R. Civ. P. 500.8(d). If a subpoena commanding testimony is directed to a corporation, partnership, association, governmental agency, or other organization and the matters on which examination is requested are described with reasonable particularity, the organization must designate one or more persons to testify on its behalf as to matters known or reasonably available to the organization. Tex. R. Civ. P. 500.8(e).
§ 30.8:2Postjudgment Discovery
Postjudgment discovery is not required to be filed with the court. The party requesting discovery must give the responding party at least thirty days to respond to a postjudgment discovery request. The responding party may file a written objection with the court within thirty days of receiving the request. If an objection is filed, the judge must hold a hearing to determine if the request is valid. If the objection is denied, the judge must order the party to respond to the request. If the objection is upheld, the judge may reform the request or dismiss it entirely. Tex. R. Civ. P. 500.9(b).
§ 30.9Other Preliminary Motions
The intent of the 2013 changes in the rules of procedure for justice courts was to provide a less cumbersome and less hypertechnical forum for parties to resolve less complex and lower dollar cases more quickly and with less cost than in county and district courts. A major concern was to prevent unrepresented parties from feeling ambushed by procedures employed by legal counsel on the other side. Wise counsel for the plaintiff or defendant might be more judicious in filing preliminary motions in justice courts than they would in other trial courts. While it might be advisable always to raise the issue of a defect in parties or motions to clarify or correct insufficient pleadings (the justice court version of special exceptions), motions should be used sparingly. Courts may be reluctant to have a pro se party replead when it is clear what the basic damages are and what relief is being sought or what the defense is—even where legal terms are not clearly invoked.
Nevertheless, a party may file a motion with the court asking that another party be required to clarify a pleading. The court must determine if the pleading is sufficient to place all parties on notice of the issues in the lawsuit and may hold a hearing to make that determination. If the court determines a pleading is insufficient, the court must order the party to amend the pleading and set a date by which the party must amend. If a party fails to comply with the court’s order, the pleading may be stricken. Tex. R. Civ. P. 502.7(b).
Parties may amend their pleadings up to seven days before trial. If the matter raised in the amendment would not be a surprise to the other side, the court, at its discretion, could allow an amendment offered less than seven days before trial. Tex. R. Civ. P. 502.7(a).
Parties in justice court civil suits, as in other trial courts, can file cross-claims, counter claims, and third party claims. See Tex. R. Civ. P. 502.6.
Probably a majority of collection cases in justice court are resolved by default judgments. However, it is prudent to thoroughly inspect your file prior to seeking judgment.
•Before filing suit, check to make sure you have a copy of the demand letter sent; check the spelling of names; verify dates of birth, addresses, account information, and affidavits; and check the amount pled in the petition with all supporting documents.
•After filing suit, verify that the filing was received by the court either electronically, by mail, by messenger, or in person.
•Once service is made, confirm that the proper person was served and that the citation return is accurate.
If the defendant fails to file an answer by the date stated in Tex. R. Civ. P. 502.5, the judge must ensure that service was proper and may hold a hearing for this purpose. If it is determined that service was proper, the judge must render a default judgment in the following manner:
1.Claim Based on Written Document. If the claim is based on a written document signed by the defendant and a copy of the document has been filed with the court and served on the defendant, along with a sworn statement from the plaintiff that this is a true and accurate copy of the document and the relief sought is owed and all payments, offsets, or credits due to the defendant have been accounted for, the judge must render judgment for the plaintiff in the requested amount, without any necessity for a hearing. The plaintiff’s attorney may also submit affidavits supporting an award of attorney fees to which the plaintiff is entitled, if any.
2.Other Cases. Except as provided in the above paragraph, a plaintiff who seeks a default judgment against a defendant must request a hearing, orally or in writing. The plaintiff must appear at the hearing and provide evidence of its damages. If the plaintiff proves its damages, the judge must render judgment for the plaintiff in the amount proven. If the plaintiff is unable to prove its damages, the judge must render judgment in favor of the defendant. With the permission of the court, a party may appear at a hearing by means of telephone or an electronic communication system.
Tex. R. Civ. P. 503.1(a). If a defendant files an answer or otherwise appears in a case before a default judgment is signed by the judge, the judge must not enter a default judgment and the case must be set for trial as described in rule 503.3.
If a defendant who has answered fails to appear for trial, the court may proceed to hear evidence on liability and damages and render judgment accordingly. Tex. R. Civ. P. 503.1(c).
§ 30.10:3Notice of Default Judgment
The plaintiff requesting a default judgment must provide to the clerk in writing the last known mailing address of the defendant at or before the time the judgment is signed. When a default judgment is signed, the clerk must immediately mail written notice of the judgment to the defendant at the address provided by the plaintiff and note the fact of such mailing on the docket. The notice must state the number and style of the case, the court in which the case is pending, the names of the parties in whose favor and against whom the judgment was rendered, and the date the judgment was signed. Failure to comply with the provisions of rule 503.1(d) does not affect the finality of the judgment. Tex. R. Civ. P. 503.1(d).
§ 30.10:4Additional Requirements for Debt Claims
Default judgments in debt claim cases have additional requirements beyond what is required in other collection cases. Those rules are clearly outlined in rule 508.3. Generally, if the defendant does not file an answer to a claim by the answer date or otherwise appear in the case, the judge must promptly render a default judgment on the plaintiff’s proof of the amount of damages. Tex. R. Civ. P. 508.3(a).
Proving Damages: Evidence of plaintiff’s damages must either be attached to the petition and served on the defendant or submitted to the court after the defendant’s failure to answer by the answer date. Tex. R. Civ. P. 508.3(b)(1). Evidence of plaintiff’s damages may be offered in a sworn statement or in live testimony. The evidence offered may include documentary evidence. Tex. R. Civ. P. 508.3(b)(2). The amount of damages is established by evidence—
1.that the account or loan was issued to the defendant and the defendant is obligated to pay it;
2.that the account was closed or the defendant breached the terms of the account or loan agreement;
3.of the amount due on the account or loan as of a date certain after all payment credits and offsets have been applied; and
4.that the plaintiff owns the account or loan and, if applicable, how the plaintiff acquired the account or loan.
Tex. R. Civ. P. 508.3(b)(3).
Practice Note: Include as much information about damages as possible in the initial petition, including the elements listed in rule 508.3(b)(3). A petition detailed enough to support summary disposition should support a default judgment. Additionally, information about the initial owner of the debt and all assignees and transferees can help the debtor recall the original debt arrangement that supports the claim.
Documentary evidence may be considered if it is attached to a sworn statement made by the plaintiff or its representative, a prior holder of the debt or its representative, or the original creditor or its representative, that attests that—
1.the documents were kept in the regular course of business;
2.it was the regular course of business for an employee or representative with knowledge of the act recorded to make the record or to transmit information to be included in such record;
3.the documents were created at or near the time or reasonably soon thereafter; and
4.the documents attached are the original or exact duplicates of the original.
Tex. R. Civ. P. 508.3(b)(4).
A judge is not required to accept a sworn statement if the source of information or the method or circumstances of preparation indicate lack of trustworthiness. But a judge may not reject a sworn statement only because it is not made by the original creditor or because the documents attested to were created by a third party and subsequently incorporated into and relied on by the business of the plaintiff. Tex. R. Civ. P. 508.3(b)(5).
Hearing: The judge may enter a default judgment without a hearing if the plaintiff submits sufficient written evidence of its damages and should do so to avoid undue expense and delay. Otherwise, the plaintiff may request a default judgment hearing at which the plaintiff must appear, in person or by telephonic or electronic means, and prove its damages. If the plaintiff proves its damages, the judge must render judgment for the plaintiff in the amount proved. If the plaintiff is unable to prove its damages, the judge must render judgment in favor of the defendant. Tex. R. Civ. P. 508.3(c).
Appearance: If the defendant files an answer or otherwise appears in a case before a default judgment is signed by the judge, the judge must not render a default judgment and must set the case for trial. Tex. R. Civ. P. 508.3(d).
Postanswer Default: If a defendant who has answered fails to appear for trial, the court may proceed to hear evidence on liability and damages and render judgment accordingly. Tex. R. Civ. P. 508.3(e).
Rule 166a no longer applies in justice courts. In place of summary judgment, the summary disposition procedure is set out in rule 503.2. Summary disposition is in some ways similar to the summary judgment procedures outlined in rule 166a, but there are significant differences. First, a motion for summary disposition may be heard as soon as fourteen days after filing with the court. Tex. R. Civ. P. 500.3(c). Second, a response to a summary disposition may be filed at any time—including on the day of hearing. Tex. R. Civ. P. 503.2(b). Third, the hearing on summary disposition must be an oral hearing unless both parties agree to dispense with the hearing and allow it to be done by submission. Tex. R. Civ. P. 500.3(c). Fourth, and probably most significant, a respondent may make an appearance at the summary disposition hearing and for the first time raise defenses and facts which had not been raised previously, and the judge may consider that evidence in determining whether or not to grant summary disposition.
Recognizing these distinctions between summary judgments and summary dispositions, movants in summary disposition matters nonetheless should probably treat the drafting of the motion the same as a motion for summary judgment. All pertinent affidavits, documents, and records should be attached to support the motion to prove that there are no material fact issues and that movant is entitled to judgment as a matter of law. The motion must be granted if it shows that—
1.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.
Tex. R. Civ. P. 503.2(a). Respondents, although not required, should file a written response raising fact issues or indicating which elements of movant’s claim are omitted or insufficient. See Tex. R. Civ. P. 503.2(b). It is better to file the response before hearing, but if that is not practical, have courtesy copies available for the court and opposing parties at the oral hearing. The court may require respondents who fail to file a written response to a summary disposition and raise new facts or defenses at the hearing to file that additional testimony in writing.
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. Tex. R. Civ. P. 503.2(d).
The rules permit judges to set cases for pretrial conferences. Some judges, particularly in lower volume courts, view pretrial conferences as a productive use of court time and regularly schedule pretrial conferences for every case prior to placing it on the court’s trial docket. Other judges view pretrial conferences as a waste of time, citing that the frequent changing and discharging of attorneys in justice court cases make it difficult to hold individuals to pretrial conference agreements in which they were not present.
If all parties have appeared in a lawsuit, the court, at any party’s request or on its own, may set a case for a pretrial conference. Reasonable notice must be sent to all parties at their addresses of record. Appropriate issues for the pretrial conference include—
1.discovery;
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 Texas Rule of Civil Procedure not in Part V or a Texas Rule of Evidence; and
11.any other issue that the court deems appropriate.
§ 30.13Alternative Dispute Resolution
The Texas Rules of Civil Procedure encourage the peaceable resolution of disputes through alternative dispute resolution, including mediation, and the early settlement of pending litigation through voluntary settlement procedures. For that purpose, the judge may order any case to mediation or another appropriate and generally accepted alternative dispute resolution process. The court must not order mediation or any other alternative dispute resolution process in an eviction case if it would delay trial. Tex. R. Civ. P. 503.5.
Many justice courts make extensive use of mediation to resolve collection matters. Some courts arrange mediation as a free or low cost service for litigants. Some courts arrange for mediation in advance of setting the trial date and may, through settlement, avoid having to place those matters on a trial docket.
Other courts set cases for mediation and trial on the same date, understanding that they will go to trial immediately if the matter is not settled in mediation. It is a good idea to contact the particular court where your collection case is filed to ascertain whether the judge permits or requires mediation.
The trial of a collection case in justice court is similar to trial in county courts. At trial, the judge can summon and question witnesses. Tex. R. Civ. P. 500.6. A previously filed and completed sworn business record affidavit may reduce the court time needed to try a collection matter. It is important to remember in debt claim cases that all the elements required for debt claim outlined in Tex. R. Civ. P. 508.2 must be proved at trial either through affidavit properly filed or through live testimony. If handling a transferred or acquired credit card debt case, the practitioner should be prepared to identify the original creditor and the dates and names of all subsequent transfers and/or assignments and verify that the account was closed or the defendant breached the terms of the contract. While justice court cases by definition involve smaller amounts than in other trial courts, counsel should always confer in advance of trial with any witnesses intended to be called. It is a waste of time for everyone when a business sends a representative to court who is not familiar with the company’s records and no sworn business affidavit was previously filed.
The judge may set the case for trial with at least forty-five days’ notice to all parties that states the date, time, and place of the setting. Trial may be set with less notice if the judge determines that an earlier setting is required in the interest of justice. Tex. R. Civ. P. 503.3(a).
On the day of the trial setting, the judge must call all of the cases set for trial that day. If the plaintiff fails to appear when the case is called for trial, the judge may postpone or dismiss the suit. If the defendant fails to appear when the case is called for trial, the judge may postpone the case or may proceed to take evidence. If the plaintiff proves its case, judgment must be awarded for the relief proved. If the plaintiff fails to prove its case, judgment must be rendered against the plaintiff. Tex. R. Civ. P. 503.6.
Any of the parties who want to proceed to trial by jury must file a request in writing and make payment in the amount of $22. Tex. R. Civ. P. 504.1(a), (b). The jury panel consists of six jurors selected similarly to jury trials in county courts. Tex. R. Civ. P. 504.2(f); see also Tex. R. Civ. P. 234. The only major difference from other trial courts is the judge cannot charge the jury in a justice court trial. Tex. R. Civ. P. 504.3; see also Tex. R. Civ. P. 271.
§ 30.15Motions for New Trial, to Set Aside Default Judgment, or to Reinstate
Movants have fourteen days from judgment or dismissal to file any of these motions, and the judge has twenty-one days to rule. Tex. R. Civ. P. 505.3. After the twenty-first day after judgment or dismissal if the judge has not ruled, the motion is denied by operation of law. Tex. R. Civ. P. 505.3(e).
A party has a right to appeal a judgment—even an agreed judgment—from a justice court. The appeal is timely if done within twenty-one days from the date of signing of the judgment or twenty-one days after the denial of a motion for new trial, a motion setting aside a default judgment, or a motion to reinstate. Tex. R. Civ. P. 506.1(a). For plaintiffs appealing a judgment granted for defendant, the appeal bond amount is $500. For a defendant appealing a judgment the amount is calculated at twice the amount of the judgment. The appeal bond needs to be “payable to the appellee and conditioned on the appellant’s prosecution of the appeal to effect and payment of any judgment and all costs rendered against it on appeal.” Tex. R. Civ. P. 506.1(b).
In lieu of a surety bond, the appellant can appeal by depositing a cash bond with the court or file a sworn affidavit of inability to pay. A cash deposit must be payable to the appellee and must be conditioned on the appellant’s prosecution of its appeal to effect and payment of any judgment and all costs rendered against it on appeal. Tex. R. Civ. P. 506.1(c).
An appellant who cannot furnish a bond or pay a cash deposit in the amount required may instead file a statement of inability to afford payment of court costs. The statement must be on the form approved by the supreme court or include the information required by the court-approved form and may be the same one that was filed with the petition. The statement may be contested as provided in Tex. R. Civ. P. 502.3(d) within seven days after the opposing party receives notice that the statement was filed. If the contest is sustained, the appellant may appeal that decision by filing notice with the justice court within seven days of that court’s written order. The justice court must then forward all related documents to the county court for resolution. The county court must set the matter for hearing within fourteen days and hear the contest de novo, as if there had been no previous hearing, and, if the appeal is granted, must direct the justice court to transmit to the clerk of the county court the transcript, records, and papers of the case, as provided in these rules. If the appellant does not appeal the ruling sustaining the contest or if the county court denies the appeal, the appellant may, within five days, post an appeal bond or make a cash deposit in compliance with this rule. Tex. R. Civ. P. 506.1(d).
If a statement of inability to afford payment of court costs is filed, the court must provide notice to all other parties that the statement was filed no later than the next business day. Within seven days of filing a bond or making a cash deposit, an appellant must serve written notice of the appeal on all other parties using a method approved under Tex. R. Civ. P. 501.4. Tex. R. Civ. P. 506.1(e).
Appeals from justice courts to county courts are by trial de novo. Tex. R. Civ. P. 506.3. After a case is appealed or after twenty-one days from the signing of a judgment that is not appealed, the justice court loses plenary jurisdiction over the case. Tex. R. Civ. P. 507.1.