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91a.1   Motion and Grounds.

Except in a case brought under the Family Code or a case governed by Chapter 14 of the Texas Civil Practice and Remedies Code, a party may move to dismiss a cause of action on the grounds that it has no basis in law or fact. A cause of action has no basis in law if the allega­tions, taken as true, together with inferences rea­sonably drawn from them do not entitle the claimant to the relief sought. A cause of action has no basis in fact if no reasonable person could believe the facts pleaded.

The Rule Does Not Apply To 

•Family Code Cases

•Inmate Litigation

Grounds for Dismissal

•No basis in Law - the allegations, together with inferences reasonably drawn from them do not entitle the claimant to the relief sought

•No basis in Facts - no reasonable person could believe the facts pled

91a.2   Contents of Motion.

A motion to dismiss must state that it is made pursuant to this rule, must identify each cause of action to which it is addressed, and must state specifically the reasons the cause of action has no basis in law, no basis in fact, or both.

Motion Must State

•It is made pursuant to TRCP 91a

•Each cause of action it addresses

•The reasons the cause of action has no basis in law, no basis in fact, or both

91a.3   Time for Motion and Ruling.

A motion to dismiss must be:

(a) filed within 60 days after the first pleading containing the challenged cause of action is served on the movant;

(b) filed at least 21 days before the motion is heard; and

(c) granted or denied within 45 days after the motion is filed.

Timing of Motion

•Filed within 60 days of when the cause of action was first served

•Filed 21 days before the motion is heard

Court Ruling

•Must be determined within 45 days after motion is filed

91a.4   Time for Response.

Any response to the motion must be filed no later than 7 days before the date of the hearing.

Response

•Filed 7 days before the motion is heard

•Not required

91a.5   Effect of Nonsuit or Amendment;
   Withdrawal of Motion.

(a) The court may not rule on a motion to dis­miss if, at least 7 days before the date of the hearing, the respondent files a nonsuit of the challenged cause of action, or the movant files a withdrawal of the motion.

Court May Not Rule on Motion to Dismiss

•If claimant nonsuits the challenged cause of action 7 days before the motion is heard

•If Movant files a withdrawal of the motion

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Summary of Rule Elements

(b) If the respondent amends the challenged cause of action at least 7 days before the date of the hearing, the movant may, before the date of the hearing, file a withdrawal of the motion or an amended motion directed to the amended cause of action.

(c) Except by agreement of the parties, the court must rule on a motion unless it has been withdrawn or the cause of action has been nonsuited in accordance with (a) or (b). In ruling on the motion, the court must not con­sider a nonsuit or amendment not filed as per­mitted by paragraphs (a) or (b).

(d) An amended motion filed in accordance with (b) restarts the time periods in this rule.

Amending the Challenged Cause

•Claimant may amend a challenged cause up to 7 days before the motion is heard

•In the event of an amendment, Movant may withdraw or amend the motion before the date of hearing

Court Must Rule

•The Court is required to rule on a Motion unless:

–The Challenged Cause of Action is non­suited

–The Motion to Dismiss is withdrawn

Effect of Amended Motion

•An Amended Motion to Dismiss filed in response to an amended cause of action restarts the time periods prescribed by the rule

91a.6   Hearing; No Evidence Considered.

Each party is entitled to at least 14 days’ notice of the hearing on the motion to dismiss. The court may, but is not required to, conduct an oral hearing on the motion. Except as required by 91a.7, the court may not consider evidence in ruling on the motion and must decide the motion based solely on the pleading of the cause of action, together with any pleading exhibits per­mitted by Rule 59.

Hearing

•Parties entitled to 14 days’ notice of hearing

•May be by Submission

Evidence

•Court may not consider evidence; Motion decided based solely on the pleadings

•Court may consider evidence for purposes of awarding attorney’s fees under Rule 91a.7

91a.7   Award of Costs and Attorney Fees             Required.

Except in an action by or against a governmental entity or a public official acting in his or her official capacity or under color of law, the court must award the prevailing party on the motion all costs and reasonable and necessary attorney fees incurred with respect to the challenged cause of action in the trial court. The court must consider evidence regarding costs and fees in determining the award.

Mandatory Award of Cost and Attorney Fees

•Prevailing party entitled to recover costs and fees incurred

•Governmental entities and public officials are exempt

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Summary of Rule Elements

91a.8   Effect on Venue and Personal Juris­diction.

This rule is not an exception to the pleading

requirements of Rules 86 and 120a, but a party does not, by filing a motion to dismiss pursuant to this rule or obtaining a ruling on it, waive a special appearance or a motion to transfer venue. By filing a motion to dismiss, a party submits to the Court’s jurisdiction in proceed­ings on the motion and is bound by the court’s ruling, including an award of attorney fees and costs against the party.

Due Order of Pleadings

•Filing of Motion does not consent to venue

•Filing of Motion does not waive any jurisdic­tional challenge raised by special exception

Jurisdiction

•Court has special jurisdiction to enforce the rule, including

–disposal of the cause of action, and

–the award of cost and attorney’s fees

91a.9   Dismissal Procedure Cumulative.

This rule is in addition to, and does not super­sede or affect, other procedures that authorize dismissal.

Motion Does Not Preclude Other Remedies

•Dismissal procedure is in addition to other available procedures and remedies

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RULE 47. CLAIMS FOR RELIEF

(a) An original pleading which sets forth a claim for relief, whether an original petition, counterclaim, cross-claim, or third party claim, shall contain (a) a short statement of the cause of action sufficient to give fair notice of the claim involved;

(b) a statement that the damages sought are within the jurisdictional limits of the court;

(c) except in suits governed by the Family Code, a statement that the party seeks:

(1) only monetary relief of $100,000 or less, including damages of any kind, pen­alties, costs, expenses, pre-judgment interest, and attorney fees; or

(2) monetary relief of $100,000 or less and non-monetary relief; or

(3) monetary relief over $100,000 but not more than $200,000; or

(4) monetary relief over $200,000 but not more than $1,000,000; or

(5) monetary relief over $1,000,000; and

(d) a demand for judgment for all the other relief to which the party deems himself enti­tled.

Relief in the alternative or of several different types may be demanded; provided, further, that upon special exception the court shall require the pleader to amend so as to specify the maximum amount claimed. A party that fails to comply with (c) may not conduct dis­covery until the party’s pleading is amended to comply.

Comment to Rule 47

Rule 47 is amended to require a more specific statement of the relief sought by a party. The amendment requires parties to plead into or out of the expedited actions process governed by Rule 169. The further specificity in paragraphs (c)(2)–(5) is to provide information regarding the nature of cases filed and does not affect a party’s substantive rights.

RULE 169. EXPEDITED ACTIONS

(a) Application.

(1) The expedited actions process in this rule applies to a suit in which all claimants, other than counter-claimants, affirmatively plead that they seek only monetary relief aggregat­ing $100,000 or less, including damages of any kind, penalties, costs, expenses, pre-
judgment interest, and attorney fees.

Pleading Requirements

•All claimants affirmatively plead that they seek only monetary relief

•Aggregate relief does not exceed $100,000, including:

–damages of any kind

–penalties

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(2) The expedited actions process does not apply to a suit in which a party has filed a claim governed by the Family Code, the Prop­erty Code, the Tax Code, or Chapter 74 of the Civil Practice & Remedies Code.

–costs

–expenses

–pre-judgment interest, and

–attorney fees.

The Rule Does Not Apply To

•Family Code Case

•Property Code Case

•Tax Code Case

•Medical Liability Cases

(b) Recovery.

In no event may a party who prosecutes a suit under this rule recover a judgment in excess of $100,000, excluding post-judgment interest.

Limit on Total Recovery

•$100,000

•Plus Post-Judgment Interest

(c) Removal from Process.

(1) A court must remove a suit from the expe­dited actions process:

(A) on motion and a showing of good cause by any party; or

(B) if any claimant, other than a counter­claimant, files a pleading or an amended or supplemental pleading that seeks any relief other than the monetary relief allowed by

(a)(1).

Removal from Process Required

•On Motion and Showing of Good Cause by any party, or

•Any claimant amends or supplements pleading to seek relief other than the monetary relief allowed by (a)(1).

•Claims of counter-claimant and relief sought are not relevant to the issue of removal other than in the context of “Good Cause”

(2) A pleading, amended pleading, or supple­mental pleading that removes a suit from the expedited actions process may not be filed without leave of court unless it is filed before the earlier of 30 days after the discovery period is closed or 30 days before the date set for trial. Leave to amend may be granted only if good cause for filing the pleading outweighs any prejudice to an opposing party.

Pleading Amendments and Supplements that Operate to Remove a Case from Expedited Actions

•If Timely Filed - removes the case automati­cally

•If Not Timely Filed - requires leave of court prior to filing

Timeliness; the Earlier of:

•Before 30 days after close of discovery period

•Before 30 days prior to trial date

Leave of Court

•Must show Good Cause for filing outweighs any prejudice to an opposing party

(3) If a suit is removed from the expedited actions process, the court must reopen discov­ery under Rule 190.2(c).

Discovery Rules Following Removal

•Case proceeds under Level 1 Discovery Control Plan, including Level 1 limitations (as revised)

(d) Expedited Actions Process.

(1) Discovery.

Discovery is governed by Rule 190.2.

Level 1 Discovery Control Plan

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Summary of Rule Elements

(2) Trial Setting; Continuances.
On any party’s request, the court must set the case for a trial date that is within 90 days after the discovery period in Rule 190.2(b)(1) ends. The court may continue the case twice, not to exceed a total of 60 days.

Trial Setting

•Rule requires that trial be set if requested by party

•Upon request, trial must be set within 90 days after close of discovery period (180 days after the first request for discovery of any kind is served)

Continuances

•Limited to 2 Continuances

•Not to exceed 60 days combined

(3) Time Limits for Trial.
Each side is allowed no more than eight hours to complete jury selection, opening state­ments, presentation of evidence, examination and crossexamination of witnesses, and clos­ing arguments. On motion and a showing of good cause by any party, the court may extend the time limit to no more than twelve hours per side.

(A) The term “side” has the same definition set out in Rule 233.

(B) Time spent on objections, bench con­ferences, bills of exception, and challenges for cause to a juror under Rule 228 are not included in the time limit.

Time Limit Is Eight (8) Hours per Side

•The following activities count against the time allotment:

–Jury selection

–Opening statements

–Presentation of evidence

–Examination

–Crossexamination of witnesses, and

–Closing arguments

Time Limit May Be Extended

•On Motion and showing of good cause

•Cannot be extended to more than 12 hours per side

Housekeeping Matters

•“Side” defined

•The following activities do not count against the time allotment:

–Objections

–Bench conferences

–Bills of exception, and

–Challenges for cause to a juror

(4) Alternative Dispute Resolution.

(A) Unless the parties have agreed not to engage in alternative dispute resolution, the court may refer the case to an alternative dispute resolution procedure once, and the procedure must:

(i) not exceed a half-day in duration, excluding scheduling time;

(ii) not exceed a total cost of twice the amount of applicable civil filing fees; and

Alternative Dispute Resolution Allowed

•Court may refer the case to ADR only once

ADR Requirements/Limitations

•Time not to exceed one-half day

•Cost not to exceed twice the civil filing fee

•Completed at least 60 days prior to initial trial setting

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Summary of Rule Elements

(iii) be completed no later than 60 days before the initial trial setting.

(B) The court must consider objections to the referral unless prohibited by statute.

(C) The parties may agree to engage in

alternative dispute resolution other than that provided for in (A).

Court Must Consider Objections to Referral

ADR Limitations May be Modified by Agree­ment

(5) Expert Testimony.
Unless requested by the party sponsoring the expert, a party may only challenge the admis­sibility of expert testimony as an objection to summary judgment evidence under Rule 166a or during the trial on the merits. This para­graph does not apply to a motion to strike for late designation.

Challenging Expert

•No Robinson Challenges

•Challenges may only occur:

–To summary judgment expert testimony

–At trial on the merits

Saving Provision

•Sponsoring party may request ruling on admis­sibility of expert testimony

•Party can challenge late designation of expert

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Summary of Rule Elements

(a) Application. This subdivision applies to:

(1) any suit in which all plaintiffs affirmatively plead that they seek only monetary relief aggregating $50,000 or less, excluding costs, pre-judgment interest and attorney’s fee any suit that is governed by the expedited actions process in Rule 169; and

(2) any suit for divorce not involving children in which a party pleads that the value of the marital estate is more than zero but not more than $50,000.

Scope

•Any suits governed by the expedited action process

(b) Exceptions. This subdivision does not apply if.

(1) the parties agree that Rule 190.3 should apply;

(2) the court orders a discovery control plan under Rule 190.4; or any party files a plead­ing or an amended or supplemental pleading that seeks relief other than that to which this subdivision applies.

A pleading, amended pleading (including trial amendment), or supplemental pleading that renders this subdivision no longer applicable may not be filed without leave of court less than 45 days before the date set for trial. Leave may be granted only if good cause for filing the pleading outweighs any prejudice to an oppos­ing party.

Agreed Opt-Out

•No longer allowed

Modification by Court Order

•No longer allowed

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Summary of Rule Elements

(b) Limitations. Discovery is subject to the limitations provided elsewhere in these rules and to the following additional limitations:

(1) Discovery Period. All discovery must be conducted during the discovery period, which begins when the suit is filed and con­tinues until 30 days before the date set for trial 180 days after the date the first request for discovery of any kind is served on a party.

(2) Total Time for Oral Depositions. Each party may have no more than six hours in total to examine and cross-examine all wit­nesses in oral depositions. The parties may agree to expand this limit up to ten hours in total, but not more except by court order. The court may modify the deposition hours so that no party is given unfair advantage.

(3) Interrogatories. Any party may serve on any other party no more than 25 15 written interrogatories, excluding interrogatories asking a party only to identify or authenti­cate specific documents. Each discrete sub­part of an interrogatory is considered a separate interrogatory.

(4) Requests for Production. Any party may serve on any other party no more than 15 written requests for production. Each dis­crete subpart of a request for production is considered a separate request for produc­tion.

(5) Requests for Admissions. Any party may serve on any other party no more than 15 written requests for admissions. Each dis­crete subpart of a request for admission is considered a separate request for admission.

(6) Requests for Disclosure. In addition to the content subject to disclosure under Rule 194.2, a party may request disclosure of all documents, electronic information, and tan­gible items that the disclosing party has in its possession, custody, or control and may use to support its claims or defenses. A request for disclosure made pursuant to this paragraph is not considered a request for production.

Calculation of Discovery Period

•Old: 30 days before trial date

•New: 180 days after service of first request for discovery

Old Scope of Limitation

•Limit on Interrogatories (25, including sub-parts)

•Limit on Depositions

New Scope of Limitations

•Changes limit on Interrogatories (15)

•Adds limit on Requests for Production (15)

•Adds limit on Admissions (15)

•Expands Disclosures

Expanded Disclosures

•Not mandatory; must be requested by party

•If to be used at trial, it must be produce

•Does not constitute a Request for Production

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Summary of Rule Elements

(c) Reopening Discovery. When the filing of a pleading or an amended or supplemental plead­ing renders this subdivision no longer applica­ble, If a suit is removed from the expedited actions process in Rule 169 or, in a divorce, the filing of a pleading renders this subdivision no longer applicable, the discovery period reopens, and discovery must be completed within the limitations provided in Rules 190.3 or 190.4, whichever is applicable. Any person previously deposed may be redeposed. On motion of any party, the court should continue the trial date if necessary to permit completion of discovery.

Effect of Removal from Expedited Action

•Court must reopen discovery

•Witnesses can be redeposed

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Summary of Rule Elements

Note: Rules of Civil Procedure 500–510 govern cases filed on or after August 31, 2013, and cases pending on August 31, 2013, except to the extent that in the opinion of the court their application in a case pending on August 31, 2013, would not be feasible or would work injustice, in which event the formerly applicable proce­dure applies. An action taken before August 31, 2013, in a case pending on August 31, 2013, that was done pursuant to any previ­ously applicable procedure must be treated as valid. Where citation or other process was issued or served prior to August 31, 2013, in compliance with any previously applicable procedure, the party served has the time provided for under the previously applicable procedure to answer or otherwise respond.

RULE 500. GENERAL RULES

RULE 500.1. CONSTRUCTION OF RULES

Unless otherwise expressly provided, in Part V of these Rules of Civil Procedure:

(a) the past, present, and future tense each includes the other;

(b) the term “it” includes a person of either gender or an entity; and

(c) the singular and plural each includes the other.

Housekeeping Language

RULE 500.2. DEFINITIONS

In Part V of these Rules of Civil Procedure:

(a) “Answer” is the written response that a party who is sued must file with the court after being served with a citation.

(b) “Citation” is the court-issued document required to be served upon a party to inform the party that it has been sued.

(c) “Claim” is the legal theory and alleged facts that, if proven, entitle a party to relief against another party in court.

(d) “Clerk” is a person designated by the judge as a justice court clerk, or the judge if there is no clerk available.

(e) “Counterclaim” is a claim brought by a party who has been sued against the party who filed suit, for example, a defendant suing a plaintiff.

(f) “County court” is the county court, statutory county court, or district court in a particular county with jurisdiction over appeals of civil cases from justice court.

(g) “Cross-claim” is a claim brought by one party against another party on the same side of a lawsuit. For example, if a plaintiff sues two defendants, the defendants can seek relief against each other by means of a cross-claim.

(h) “Default judgment” is a judgment awarded to a plaintiff when the defendant fails to answer and dispute the plaintiff’s claims in the lawsuit.

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Summary of Rule Elements

(i) “Defendant” is a party who is sued, including a plaintiff against whom a counterclaim is filed.

(j) “Defense” is an assertion by a defendant that the plaintiff is not entitled to relief from the court.

(k) “Discovery” is the process through which parties obtain information from each other in order to prepare for trial or enforce a judgment. The term does not refer to any information that a party is entitled to under applicable law.

(l) “Dismissed without prejudice” means a case has been dis­missed but has not been finally decided and may be refiled.
(m) “Dismissed with prejudice” means a case has been dismissed and finally decided and may not be refiled.

(n) “Judge” is a justice of the peace.

(o) “Judgment” is a final order by the court that states the relief, if any, a party is entitled to or must provide.

(p) “Jurisdiction” is the authority of the court to hear and decide a case.

(q) “Motion” is a request that the court make a specified ruling or order.

(r) “Notice” is a document prepared and delivered by the court or a party stating that something is required of the party receiving the notice.

(s) “Party” is a person or entity involved in the case that is either suing or being sued, including all plaintiffs, defendants, and third parties that have been joined in the case.

(t) “Petition” is a formal written application stating a party’s claims and requesting relief from the court. It is the first docu­ment filed with the court to begin a lawsuit.

(u) “Plaintiff” is someone who sues, including a defendant who files a counterclaim.

(v) “Pleading” is a written document filed by a party, including a petition and an answer, that states a claim or defense and outlines the relief sought.

(w) “Relief” is the remedy a party requests from the court, such as the recovery of money or the return of property.

(x) “Serve” and “service” are delivery of citation as required by Rule 501.2, or of a document as required by Rule 501.4.

(y) “Sworn” means signed in front of someone authorized to take oaths, such as a notary, or signed under penalty of perjury. Filing a false sworn document can result in criminal prosecution.

(z) “Third party claim” is a claim brought by a party being sued against someone who is not yet a party to the case.

Included to help guide pro se parties

RULE 500.3. APPLICATION OF RULES IN JUSTICE COURT CASES

(a) Small Claims Case. 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 fees, if any. Small claims cases are gov­erned by Rules 500–507 of Part V of the Rules of Civil Proce­dure.
(b) Debt Claim Case. A debt claim case is a lawsuit brought to recover a debt by an assignee of a claim, a debt collector or col­lection agency, a financial institution, 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. Debt claim cases in justice court are governed by Rules 500–507 and 508 of Part V of the Rules of Civil Procedure. To the extent of any con­flict between Rule 508 and the rest of Part V, Rule 508 applies.

(c) Repair and Remedy Case. 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. Repair and remedy cases are governed by Rules 500–507 and 509 of Part V of the Rules of Civil Procedure. To the extent of any conflict between Rule 509 and the rest of Part V, Rule 509 applies.

(d) Eviction Case. 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 costs and attorney fees, if any. Eviction cases are governed by Rules 500–507 and 510 of Part V of the Rules of Civil Procedure. To the extent of any con­flict between Rule 510 and the rest of Part V, Rule 510 applies.

(e) Application of Other Rules. The other Rules of Civil Proce­dure and the Rules of Evidence do not apply except:

(1) when 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) when otherwise specifically provided by law or these rules.

(f) Examination of Rules. The court must make the Rules of Civil Procedure and the Rules of Evidence available for examination, either in paper form or electronically, during the court’s business hours.

Jurisdictional Limit of $10,000

•Includes:

–Damages

–Penalties

–Property

–Attorney’s Fees

•Excludes:

–Statutory Interest

–Court Cost

Debt Claim Case Defined

•Assignee of a Claim

•A Financial Institution

•A Debt Collector or Collec­tion Agency

•A person or entity primarily engaged in the business of lending money at interest

Repair and Remedy Case Defined

•Alleged failure of a landlord to remedy or repair a condi­tion as required by Chapter 92 of the Texas Property Code

Eviction Cases

•lawsuit brought to recover possession of real property

•May include a claim for rent

Note: Effective September 1, 2020, the jurisdictional limit of the justice courts under Tex. Gov’t Code § 27.031 increases to $20,000. See Acts 2019, 86th Leg., R.S., ch. 696, §§ 2, 32 (S.B. 2342). As of the publica­tion date of the latest supple­ment of this manual, chapter 500 of the Texas Rules of Civil Procedure has not been revised to reflect the increase.

RULE 500.4. REPRESENTATION IN JUSTICE COURT CASES

(a) Representation of an Individual. An individual may:

(1) represent himself or herself;

(2) be represented by an authorized agent in an eviction case; or

(3) be represented by an attorney.

(b) Representation of a Corporation or Other Entity. A corpora­tion or other entity may:

(1) be represented by an employee, owner, officer, or partner of the entity who is not an attorney;
(2) be represented by a property manager or other authorized agent in an eviction case; or

(3) be represented by an attorney.

(c) Assisted Representation. The court may, for good cause, allow an individual representing himself or herself to be assisted in court by a family member or other individual who is not being compensated.

No Substantive Change from Prior Rules

RULE 500.5. COMPUTATION OF TIME; TIMELY FILING

(a) Computation of Time. To compute a time period in these rules:

(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; or

(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.

(b) Timely Filing by Mail. 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 10 days of the due date. A legible postmark affixed by the United States Postal Service is evidence of the date of mailing.

(c) Extensions. The judge may, for good cause shown, extend any time period under these rules except those relating to new trial and appeal.

Follows District Court Rules

RULE 500.6. JUDGE TO DEVELOP THE CASE

In order to develop the facts of the case, a judge may question a wit­ness or party and may summon any person or party to appear as a witness when the judge considers it necessary to ensure a correct judgment and a speedy disposition.

Applies to All Cases - This substantially changes the role of the judge

RULE 500.7. EXCLUSION OF WITNESSES

The court must, on a party’s request, or may, on its own initiative,  order witnesses excluded so that they cannot hear the testimony of other witnesses. This rule does not authorize the exclusion of:

(a) a party who is a natural person or the spouse of such natural person;

(b) an officer or employee designated as a representative of a party who is not a natural person; or

(c) a person whose presence is shown by a party to be essential to the presentation of the party’s case.

Follows District Court Rules

RULE 500.8. SUBPOENAS

(a) Use. A subpoena may be used by a party 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.

(b) Who Can Issue. A subpoena may be issued by the clerk of the justice court or an attorney authorized to practice in the State of Texas, as an officer of the court.

(c) Form. Every subpoena must be issued in the name of the “State of Texas” and must:

(1) state the style of the suit and its case number;

(2) state the court in which the suit is pending;

(3) state the date on which the subpoena is issued;

(4) identify the person to whom the subpoena is directed;

(5) state the date, time, place, and nature of the action required by the person to whom the subpoena is directed;

(6) identify the party at whose instance the subpoena is issued, and the party’s attorney of record, if any;

(7) state that “Failure by any person without adequate excuse to obey a subpoena served upon that person may be deemed a contempt of court from which the subpoena is issued and may be punished by fine or confinement, or both”; and

(8) be signed by the person issuing the subpoena.

(d) Service: Where, By Whom, How. 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 18 years of age or older. A subpoena must be served by deliv­ering a copy to the witness and tendering to that person any fees required by law. If the witness is a party and is represented by an attorney of record in the proceeding, the subpoena may be served on the witness’s attorney of record. 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.

Follows District Court Rules

Text of Rule of Civil Procedure

Summary of Rule Elements

(e) Compliance Required. A person commanded by subpoena to appear and give testimony must remain at the hearing or trial from day to day until discharged by the court or by the party summoning the witness. 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.

(f) Objection. A person commanded to attend and give testimony at a hearing or trial may object or move for a protective order before the court at or before the time and place specified for com­pliance. A party causing a subpoena to issue must take reason­able steps to avoid imposing undue burden or expense on the person served. In ruling on objections or motions for protection, the court must provide a person served with a subpoena an ade­quate time for compliance and protection from undue burden or expense. The court may impose reasonable conditions on com­pliance with a subpoena, including compensating the witness for undue hardship.
(g) Enforcement. Failure by any person without adequate excuse to obey a subpoena served upon that person may be deemed a contempt of the court from which the subpoena is issued or of a district court in the county in which the subpoena is served, and may be punished by fine or confinement, or both. A fine may not be imposed, nor a person served with a subpoena attached, for failure to comply with a subpoena without proof of service and proof by affidavit of the party requesting the subpoena or the party’s attorney of record that all fees due the witness by law were paid or tendered.

RULE 500.9. DISCOVERY

(a) Pretrial Discovery. 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.The discovery request must not be served on the responding party unless the judge issues a signed order approving the request. 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.

No Automatic Right to Dis­covery

Discovery only available after court order

•Request presented by written motion, served on all parties

•Requires signed order

•Limited to what is reason­able and necessary

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Summary of Rule Elements

(b) Post-judgment Discovery. Post-judgment discovery is not required to be filed with the court. The party requesting discov­ery must give the responding party at least 30 days to respond to a post-judgment discovery request. The responding party may file a written objection with the court within 30 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.

Discovery Order enforceable by sanctions

Post-Judgment Discovery allowed without necessity of Court Order

RULE 501. CITATION AND SERVICE

RULE 501.1. CITATION

(a) Issuance. When a petition is filed with a justice court to initi­ate a suit, the clerk must promptly issue a citation and deliver the citation as directed by the plaintiff. 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. Upon request, separate or additional citations must be issued by the clerk. The clerk must retain a copy of the citation in the court’s file.

(b) Form. The citation must:

(1) be styled “The State of Texas”;
(2) be signed by the clerk under seal of court or by the judge;

(3) contain the name, location, and address of the court;

(4) show the date of filing of the petition;

(5) show the date of issuance of the citation;

(6) show the file number and names of parties;

(7) be directed to the defendant;

(8) show the name and address of attorney for plaintiff, or if the plaintiff does not have an attorney, the address of plaintiff;

(9) notify defendant that if the defendant fails to file an answer, judgment by default may be rendered for the relief demanded in the petition.

(c) Notice. The citation must include the following notice to the defendant in boldface type:

Generally follows District Court rules, except -

•Answer Date is 14 days from service date

Text of Rule of Civil Procedure

Summary of Rule Elements

“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.”

(d) Copies. The plaintiff must provide enough copies to be served on each defendant. If the plaintiff fails to do so, the clerk may make copies and charge the plaintiff the allowable copying cost.

RULE 501.2. SERVICE OF CITATION

(a) Who May Serve. 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 the enforcement action be physically enforced by the person delivering 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 18 years of age or older.

(b) Method of Service. 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.

(c) Service Fees. A plaintiff must pay all fees for service unless the plaintiff has filed a sworn statement of inability to pay the fees with the court. If the plaintiff has filed a sworn statement of inabil­ity to pay, the plaintiff must arrange for the citation to be served by a sheriff, constable, or court clerk.

Generally follows District Court rules, except -

•Request for Alternative Ser­vice may come from the con­stable, sheriff or process server

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Summary of Rule Elements

(d) Service on Sunday. A citation cannot be served on a Sunday except in attachment, garnishment, sequestration, or distress pro­ceedings.

(e) Alternative Service of Citation. If the methods under (b) are insufficient to serve the defendant, the plaintiff, or the constable, sheriff, 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 (b) and stating the defendants’ 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 16 years of age; or

(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.

(f) 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.

RULE 501.3. DUTIES OF OFFICER OR PERSON RECEIV­ING CITATION

(a) Endorsement; Execution; Return. The officer or authorized person to whom process is delivered must:

(1) endorse on the process the date and hour on which he or she received it;

(2) execute and return the same without delay; and

(3) complete a return of service, which may, but need not, be endorsed on or attached to the citation.

(b) Contents of Return. The return, together with any document to which it is attached, must include the following information:

(1) the case number and case name;
(2) the court in which the case is filed;

(3) a description of what was served;

(4) the date and time the process was received for service;

(5) the person or entity served;

(6) the address served;

(7) the date of service or attempted service;

(8) the manner of delivery of service or attempted service;

(9) the name of the person who served or attempted service;

Generally follows District Court rules

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Summary of Rule Elements

(10) if the person named in (9) is a process server certified under Supreme Court Order, his or her identification number and the expiration date of his or her certification; and

(11) any other information required by rule or law.

(c) Citation by Mail. When the citation is served by registered or certified mail as authorized by Rule 501.2(b)(2), the return by the officer or authorized person must also contain the receipt with the addressee’s signature.

(d) Failure to Serve. When the officer or authorized person has not served the citation, the return must show the diligence used by the officer or authorized person to execute the same and the cause of failure to execute it, and where the defendant is to be found, if ascertainable.

(e) Signature. The officer or authorized person who serves or attempts to serve a citation must sign the return. If the return is signed by a person other than a sheriff, constable, or clerk of the court, the return must either be verified or be signed under pen­alty of perjury. A return signed under penalty of perjury must contain the statement below in substantially the following form:

“My name is (First) (Middle) (Last), my date of birth is (Month) (Day), (Year), and my address is (Street), (City), (State) (Zip Code), (Country). I declare under penalty of perjury that the fore­going is true and correct.

Executed in ________ County, State of ________, on the ________ day of (Month), (Year).

__________________ Declarant”

(f) Alternative Service. Where citation is executed by an alterna­tive method as authorized by 501.2(e), proof of service must be made in the manner ordered by the court.

(g) Filing Return. The return and any document to which it is attached must be filed with the court and may be filed electroni­cally or by fax, if those methods of filing are available.

(h) Prerequisite for Default Judgment. No default judgment may be granted in any case until proof of service as provided by this rule, or as ordered by the court in the event citation is executed by an alternative method under 501.2(e), has been on file with the clerk of the court 3 days, exclusive of the day of filing and the day of judgment.

RULE 501.4. SERVICE OF PAPERS OTHER THAN CITA­TION

(a) Method of Service. Other than a citation or oral motions made during trial or when all parties are present, every notice required by these rules, and every pleading, plea, motion, application to the court for an order, or other form of request, must be served on all other parties in one of the following ways.

Generally follows District Court rules

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Summary of Rule Elements

(1) In person. A copy may be delivered to the party to be served, or the party’s duly authorized agent or attorney of record, in person or by agent.

(2) Mail or courier. A copy may be sent by courier-receipted delivery or by certified or registered mail, to the party’s last known address. Service by certified or registered mail is com­plete when the document is properly addressed and deposited in the United States mail, postage prepaid.

(3) Fax. A copy may be faxed to the recipient’s current fax number. Service by fax after 5:00 p.m. local time of the recipi­ent will be deemed to have been served on the following day.

(4) Email. A copy may be sent to an email address expressly provided by the receiving party, if the party has consented to email service in writing. Service by email after 5:00 p.m. local time of the recipient will be deemed to have been served on the following day.

(5) Other. A copy may be delivered in any other manner directed by the court.

(b) Timing. If a document is served by mail, 3 days will be added to the length of time a party has to respond to the document. 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.

(c) Who May Serve. Documents other than a citation may be served by a party to the suit, an attorney of record, a sheriff or constable, or by any other person competent to testify.

(d) Certificate of Service. The party or the party’s attorney of record must include in writing on all documents filed a signed statement describing the manner in which the document was served on the other party or parties and the date of service. A cer­tificate by a party or the party’s attorney of record, or the return of the officer, or the sworn statement of any other person show­ing service of a notice is proof of service.

(e) Failure to Serve. A party may offer evidence or testimony that a notice or document was not received, or, if service was by mail, that it was not received within 3 days from the date of mail­ing, and upon so finding, the court may extend the time for taking the action required of the party or grant other relief as it deems just.

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Summary of Rule Elements

RULE 502. INSTITUTION OF SUIT

RULE 502.1. PLEADINGS AND MOTIONS MUST BE
WRITTEN, SIGNED, AND FILED

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 Rule 21.

Pleading to be In Writing

RULE 502.2. PETITION

(a) Contents. To initiate a lawsuit, a petition must be filed with the court. A 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 email service of the answer and any other motions or pleadings, a statement consenting to email service and email contact information.

(b) Repealed effective February 26, 2019.

Contents of Petition Described

Pleading Requirement

•Name, address, telephone number, and fax number, if any, of the plaintiff and the plaintiff’s attorney, if appli­cable;

•Name, address, and tele­phone number, if known, of the defendant;

•amount of money, if any, the plaintiff seeks;

•description and claimed value of any personal prop­erty the plaintiff seeks;

•the basis for the plaintiff’s claim against the defendant; and

•the plaintiff’s email address, if consenting to service via email

RULE 502.3. FEES; INABILITY TO PAY

(a) Fees and Statement of Inability to Pay. On filing the petition, the plaintiff must pay the appropriate filing fee and service fees, if any, with the court. A plaintiff who is unable to afford to pay the fees must file a sworn statement of inability to pay. Upon fil­ing the statement, the clerk must docket the action, issue citation, and provide any other customary services.

Generally follows District Court rules

(b) Contents of Statement of Inability to Pay.

(1) The statement must contain complete information as to the party’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 to the party, property owned (other than homestead), cash or checking account, dependents, debts, and monthly expenses.
(2) 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.

(c) IOLTA Certificate. If the party is represented by an attorney who is providing free legal services because of the party’s indi­gence, without contingency, and the attorney is providing ser­vices either directly or by referral from a program funded by the Interest on Lawyers Trust Accounts (IOLTA) program, the attor­ney may file an IOLTA certificate confirming that the IOLTA funded program screened the party for income eligibility under the IOLTA income guidelines. A party’s statement of inability to pay accompanied by an attorney’s IOLTA certificate may not be contested under (d).

(d) Contest. Unless an IOLTA certificate is filed, the defendant may file a contest of the statement of inability to pay at any time within 7 days after the day the defendant’s answer is due. If the statement attests to receipt of government entitlement based on indigence, the statement may only be contested with regard to the veracity of the attestation. If contested, the judge must hold a hearing to determine the plaintiff’s ability to pay. At the hearing, the burden is on the party who filed the statement to prove its inability to pay. The judge may, regardless of whether the defen­dant contests the statement, examine the statement and conduct a hearing to determine the plaintiff’s ability to pay. If the judge determines that the plaintiff is able to afford the fees, the judge must enter a written order listing the reasons for the determina­tion, and the plaintiff must pay the fees in the time specified in the order or the case will be dismissed without prejudice.

RULE 502.4. VENUE — WHERE A LAWSUIT MAY BE BROUGHT

(a) Applicable Law. Laws specifying the venue – the county and precinct where a lawsuit may be brought – are found in Chapter 15, Subchapter E of the Texas Civil Practice and Remedies Code, which is available online and for examination during the court’s business hours.

(b) General Rule. Generally, a defendant in a small claims case as described in Rule 500.3(a) or a debt claim case as described in Rule 500.3(b) is entitled to be sued in one of the following ven­ues:

Generally follows Civil Prac­tice and Remedies Code Chapter 15

•The rule makes it clear that it does not replace CPRC Chapter 15; merely summa­rizes the basic venue issues for purposes of a pro se liti­gant

No Substantial Change from prior venue process

Text of Rule of Civil Procedure

Summary of Rule Elements

(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; or

(4) the county and precinct where the property is located, in a suit to recover personal property.

(c) Non-Resident Defendant; Defendant’s Residence Unknown. If the defendant is a non-resident of Texas, or if defendant’s resi­dence is unknown, the plaintiff may file the suit in the county and precinct where the plaintiff resides.
(d) Motion 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 21 days after the day the defendant’s answer is filed, and must contain a sworn statement that the venue chosen by the plaintiff is improper and a 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 7 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.

(1) Procedure.

(A) Judge to Set Hearing. If a defendant files a motion to transfer venue, the judge must set a hearing on the motion.

(B) Response. A plaintiff may file a response to a defen­dant’s motion to transfer venue.

(C) Hearing. 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.

(D) Judge’s Decision. 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.

(E) Review. Motions for rehearing and interlocutory appeals of the judge’s ruling on venue are not permitted.

(F) Time for Trial of the Case. No trial may be held until at least the 14th day after the judge’s ruling on the motion to transfer venue.

Text of Rule of Civil Procedure

Summary of Rule Elements

(G) Order. 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. 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 14 days after receiving the notice to pay the filing fee in the new court, or file a sworn statement of inability to pay. The plaintiff is not entitled to a refund of any fees already paid. Failure to pay the fee or file a sworn statement of inability to pay will result in dismissal of the case without prejudice.

(e) 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 such, 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 7 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, then 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.

(f) 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.

RULE 502.5. ANSWER

(a) Requirements. 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

Defendant’s Answer

•Due 14 days from date of service

•Must be in writing

•Rule allows for a general denial

Text of Rule of Civil Procedure

Summary of Rule Elements

(3) if the defendant consents to email service, a statement con­senting to email service and email contact information.

(b) General Denial. An answer that denies all of the plaintiff’s allegations and demands that they be proven without specifying the reasons is sufficient to constitute an answer or appearance and does not bar the defendant from raising any defense at trial.

(c) Answer Docketed. The defendant’s appearance must be noted on the court’s docket.

(d) Due Date. Unless the defendant is served by publication, the defendant’s answer is due by the end of the 14th day after the day the defendant was served with the citation and petition, but

(1) 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; or

(2) 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.

(e) Due Date When Defendant Served by Publication. If a defen­dant is served by publication, the defendant’s answer is due by the end of the 42nd day after the day the citation was issued, but

(1) if the 42nd 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; or

(2) if the 42nd 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.

What is Not Required

•Affirmative Defenses need not be pled

RULE 502.6. COUNTERCLAIM; CROSS-CLAIM; THIRD-PARTY CLAIM

(a) Counterclaim. A defendant may file a petition stating as a counterclaim any claim against a plaintiff that is within the juris­diction of the justice court, whether or not related to the claims in the plaintiff’s petition. The defendant must file a counterclaim petition as provided in Rule 502.2, and must pay a filing fee or provide a sworn statement of inability to pay the fees. The court need not generate a citation for a counterclaim and no answer to the counterclaim need be filed. The defendant must serve a copy of the counterclaim as provided by Rule 501.4.

(b) Cross-Claim. A plaintiff seeking relief against another plain­tiff, or a defendant seeking relief against another defendant may file a cross-claim. The filing party must file a cross-claim peti­tion as provided in Rule 502.2, and must pay a filing fee or pro­vide a sworn statement of inability to pay the fees. A citation must be issued and served as provided by Rule 501.2 on any party that has not yet filed a petition or an answer, as appropriate. If the party filed against has filed a petition or an answer, the fil­ing party must serve the cross-claim as provided by Rule 501.4.

Counterclaims

•Must follow pleading requirements set forth in 502.2

•Must pay a fee or file an sworn statement of inability to pay

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Summary of Rule Elements

(c) Third Party Claim. A defendant seeking to bring another party into a lawsuit who may be liable for all or part of the plain­tiff’s claim against the defendant may file a petition as provided in Rule 502.2, and must pay a filing fee or provide a sworn state­ment of inability to pay the fees. A citation must be issued and served as provided by Rule 501.2.

RULE 502.7. AMENDING AND CLARIFYING PLEADINGS

(a) Amending Pleadings. 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 Rule 501.4 not less than 7 days before trial. The court may allow a pleading to be amended less than 7 days before trial if the amendment will not operate as a surprise to the opposing party.

(b) Insufficient Pleadings. 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.

Pleading Amendments

•Up until 7 days before trial without leave of Court

•7 days before trial or sooner, upon a showing that the amendment would not oper­ate as a surprise

Special Exception

•The issue is the sufficiency of pleading to place all par­ties on notice of the issues

•A hearing is not required

RULE 503. DEFAULT JUDGMENT; PRE-TRIAL MATTERS; TRIAL

RULE 503.1. IF DEFENDANT FAILS TO ANSWER

(a) Default Judgment. If the defendant fails to file an answer by the date stated in Rule 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.

Default Judgment

•Judge must determine suffi­ciency of service and may hold hearing

•Appearance may be by tele­phonic or electronic commu­nication, at the judge’s discretion

Sworn Account/Liquidated Damage Cases

•Requires Sworn Statement

•May be granted on submis­sion

Non-Sworn Accounts/ Unliq­uidated Damage Cases

•Requires request for hearing

•May not be granted on sub­mission

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Summary of Rule Elements

(2) Other Cases. Except as provided in (1), 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.

(b) Appearance. 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.

(c) Post-Answer 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.

(d) Notice. 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 this rule does not affect the finality of the judgment.

Judge Must Render Judg­ment

•Rule makes no allowances for curing a deficiency in plaintiff’s proof of damages

Clerk to Mail Notice of Judg­ment

RULE 503.2. SUMMARY DISPOSITION

(a) Motion. 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 set out all supporting facts. All documents on which the motion relies must be attached. 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.

(b) Response. The party opposing the motion may file a sworn written response to the motion.

(c) Hearing. The court must not consider a motion for summary disposition until it has been on file for at least 14 days. The judge may consider evidence offered by the parties at the hearing. By agreement of the parties, the judge may decide the motion and response without a hearing.

Summary Judgment Proce­dure

•Requires “sworn motion”

•Requires evidence be attached

•Provides for “sworn written response”

Hearing

•After Motion on file for 14 days

•Response time line not stated, only required prior to hearing

•May be on submission if agreed to by the parties

Motion to be Granted if:

•There are no “genuinely dis­puted facts”

•There is “no evidence” of one or more essential ele­ments of a defense

Text of Rule of Civil Procedure

Summary of Rule Elements

(d) Order. 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.

•There is “no evidence” of one or more essential ele­ments of a plaintiff’s claim

RULE 503.3. SETTINGS AND NOTICE; POSTPONING TRIAL

(a) Settings and Notice. After the defendant answers, the case will be set on a trial docket at the discretion of the judge. The court must send a notice of the date, time, and place of this set­ting to all parties at their address of record no less than 45 days before the setting date, unless the judge determines that an earlier setting is required in the interest of justice. Reasonable notice of all subsequent settings must be sent to all parties at their addresses of record.

(b) Postponing Trial. A party may file a motion requesting that the trial be postponed. The motion must state why a postpone­ment is necessary. The judge, for good cause, may postpone any trial for a reasonable time.

Notice of Trial Date Required

•Requires 45 day notice

•Resetting of trial date only requires “reasonable notice”

Continuances

•Requires sworn motion

•Requires showing of “good cause”

RULE 503.4. PRETRIAL CONFERENCE

(a) Conference Set; Issues. 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 Rule of Civil Procedure not in Part V or a Rule of Evidence; and

(11) any other issue that the court deems appropriate.

(b) Eviction Cases. The court must not schedule a pretrial confer­ence in an eviction case if it would delay trial.

Pre-Trial Conference

•Court may set on own motion or that of a party

Conference Topic List

•(See Rule)

Text of Rule of Civil Procedure

Summary of Rule Elements

RULE 503.5. ALTERNATIVE DISPUTE RESOLUTION

(a) State Policy. The policy of this state is to 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.

(b) Eviction Cases. The court must not order mediation or any other alternative dispute resolution process in an eviction case if it would delay trial.

Alternative Dispute Resolu­tion

•Court may order ADR

RULE 503.6. TRIAL

(a) Docket Called. On the day of the trial setting, the judge must call all of the cases set for trial that day.

(b) If Plaintiff Fails to Appear. If the plaintiff fails to appear when the case is called for trial, the judge may postpone or dis­miss the suit.

(c) If Defendant Fails to Appear. 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 proven. If the plaintiff fails to prove its case, judgment must be rendered against the plaintiff.

Failure to Appear

•Court may continue the case

•Court may proceed and call the case to trial

–If plaintiff fails to prove its case, the Court must enter a take-nothing judgment

RULE 504. JURY

RULE 504.1. JURY TRIAL DEMANDED

(a) Demand. Any party is entitled to a trial by jury. A written demand for a jury must be filed no later than 14 days before the date a case is set for trial. If the demand is not timely, the right to a jury is waived unless the late filing is excused by the judge for good cause.

(b) Jury Fee. Unless otherwise provided by law, a party demand­ing a jury must pay a fee of $22.00 or must file a sworn statement of inability to pay the fee at or before the time the party files a written request for a jury.

(c) Withdrawal of Demand. If a party who demands a jury and pays the fee withdraws the demand, the case will remain on the jury docket unless all other parties present agree to try the case without a jury. A party that withdraws its jury demand is not enti­tled to a refund of the jury fee.

(d) No Demand. If no party timely demands a jury and pays the fee, the judge will try the case without a jury.

No Substantive Change from Prior Rules

Text of Rule of Civil Procedure

Summary of Rule Elements

RULE 504.2. EMPANELING THE JURY

(a) Drawing Jury and Oath. If no method of electronic draw has been implemented, the judge must write the names of all pro­spective jurors present on separate slips of paper as nearly alike as may be, place them in a box, mix them well, and then draw the names one by one from the box. The judge must list the names drawn and deliver a copy to each of the parties or their attorneys.

(b) Oath. After the draw, the judge must swear the panel as fol­lows: “You solemnly swear or affirm that you will give true and correct answers to all questions asked of you concerning your qualifications as a juror.”

(c) Questioning the Jury. The judge, the parties, or their attorneys will be allowed to question jurors as to their ability to serve impartially in the trial but may not ask the jurors how they will rule in the case. The judge will have discretion to allow or disal­low specific questions and determine the amount of time each side will have for this process.

(d) Challenge for Cause. A party may challenge any juror for cause. A challenge for cause is an objection made to a juror alleging some fact, such as bias or prejudice, that disqualifies the juror from serving in the case or that renders the juror unfit to sit on the jury. The challenge must be made during jury questioning. The party must explain to the judge why the juror should be excluded from the jury. The judge must evaluate the questions and answers given and either grant or deny the challenge. When a challenge for cause has been sustained, the juror must be excused.

(e) Challenges Not for Cause. After the judge determines any challenges for cause, each party may select up to 3 jurors to excuse for any reason or no reason at all. But no prospective juror may be excused for membership in a constitutionally pro­tected class.

(f) The Jury. After all challenges, the first 6 prospective jurors remaining on the list constitute the jury to try the case.

(g) If Jury Is Incomplete. If challenges reduce the number of pro­spective jurors below 6, the judge may direct the sheriff or con­stable to summon others and allow them to be questioned and challenged by the parties as before, until at least 6 remain.

(h) Jury Sworn. When the jury has been selected, the judge must require them to take substantially the following oath: “You sol­emnly swear or affirm that you will render a true verdict accord­ing to the law and the evidence presented.”

No Substantive Change from Prior Rules

RULE 504.3. JURY NOT CHARGED

The judge must not charge the jury.

No Substantive Change from Prior Rules

RULE 504.4. JURY VERDICT FOR SPECIFIC ARTICLES

When the suit is for the recovery of specific articles and the jury finds for the plaintiff, the jury must assess the value of each article separately, according to the evidence presented at trial.

No Substantive Change from Prior Rules

RULE 505. JUDGMENT; NEW TRIAL

RULE 505.1. JUDGMENT

(a) Judgment Upon Jury Verdict. Where a jury has returned a verdict, the judge must announce the verdict in open court, note it in the court’s docket, and render judgment accordingly. The judge may render judgment on the verdict or, if the verdict is contrary to the law or the evidence, judgment not withstanding the verdict.

(b) Case Tried by Judge. When a case has been tried before the judge without a jury, the judge must announce the decision in open court, note the decision in the court’s docket, and render judgment accordingly.

(c) Form. A judgment must:

(1) clearly state the determination of the rights of the parties in the case;

(2) state who must pay the costs;

(3) be signed by the judge; and

(4) be dated the date of the judge’s signature.

(d) Costs. The judge must award costs allowed by law to the suc­cessful party.

(e) Judgment for Specific Articles. Where the judgment is for the recovery of specific articles, the judgment must order that the plaintiff recover such specific articles, if they can be found, and if not, then their value as assessed by the judge or jury with inter­est at the prevailing post-judgment interest rate.

No Substantive Change from Prior Rules

RULE 505.2. ENFORCEMENT OF JUDGMENT

Justice court judgments are enforceable in the same method as in county and district court, except as provided by law. When the judg­ment is for personal property, the court may award a special writ for the seizure and delivery of such property to the plaintiff, and may, in addition to the other relief granted in such cases, enforce its judg­ment by attachment or fine.

No Substantive Change from Prior Rules

RULE 505.3. MOTION TO SET ASIDE; MOTION TO REINSTATE; MOTION FOR NEW TRIAL

(a) Motion to Reinstate after Dismissal. A plaintiff whose case is dismissed may file a motion to reinstate the case no later than 14 days after the dismissal order is signed. The plaintiff must serve the defendant with a copy of the motion no later than the next business day using a method approved under Rule 501.4. The court may reinstate the case for good cause shown.

No Substantive Change from Prior Rules, Except

•Enlarges time period for request to 14 days

Motion Denied as a Matter of Law if no Order is signed within 21 days after the Judg­ment was signed

Text of Rule of Civil Procedure

Summary of Rule Elements

(b) Motion to Set Aside Default. A defendant against whom a default judgment is granted may file a motion to set aside the judgment no later than 14 days after the judgment is signed. The defendant must serve the plaintiff with a copy of the motion no later than the next business day using a method approved under Rule 501.4. The court may set aside the judgment and set the case for trial for good cause shown.
(c) Motion for New Trial. A party may file a motion for a new trial no later than 14 days after the judgment is signed. The party must serve all other parties with a copy of the motion no later than the next business day using a method approved under Rule 501.4. The judge may grant a new trial upon a showing that jus­tice was not done in the trial of the case. Only one new trial may be granted to either party.

(d) Motion Not Required. Failure to file a motion under this rule does not affect a party’s right to appeal the underlying judgment.

(e) Motion Denied as a Matter of Law. If the judge has not ruled on a motion to set aside, motion to reinstate, or motion for new trial, the motion is automatically denied at 5:00 p.m. on the 21st day after the day the judgment was signed.

RULE 506. APPEAL

RULE 506.1. APPEAL

(a) How Taken; Time. A party may appeal a judgment by filing a bond, making a cash deposit, or filing a sworn statement of inability to pay with the justice court within 21 days after the judgment is signed or the motion to reinstate, motion to set aside, or motion for new trial, if any, is denied.

(b) Amount of Bond; Sureties; Terms. 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. The bond 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.

(c) Cash Deposit in Lieu of Bond. In lieu of filing a bond, an appellant may deposit with the clerk of the court cash in the amount required of the bond. The 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.

(d) Sworn Statement of Inability to Pay.

(1) Filing. An appellant who cannot furnish a bond or pay a cash deposit in the amount required may instead file a sworn statement of inability to pay. The statement must meet the requirements of Rule 502.3 and may be the same one that was filed with the petition.

Timetable for Appeal is Enlarged

•Within 21 days after the judgment is signed

Bond Requirements for Appeal

•Plaintiff: $500

•Defendant: Twice the amount of the judgment

•Payable to Appellee

•Pauper’s Bond described

Text of Rule of Civil Procedure

Summary of Rule Elements

(2) Contest. The statement may be contested as provided in Rule 502.3(d) within 7 days after the opposing party receives notice that the statement was filed.

(3) Appeal If Contest Sustained. If the contest is sustained, the appellant may appeal that decision by filing notice with the justice court within 7 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 14 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.
(4) If No Appeal or If Appeal Overruled. 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.

(e) Notice to Other Parties Required. If a statement of inability to pay is filed, the court must provide notice to all other parties that the statement was filed no later than the next business day. Within 7 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 Rule 501.4.

(f) No Default on Appeal Without Compliance With Rule. The county court to which an appeal is taken must not render default judgment against any party without first determining that the appellant has fully complied with this rule.

(g) No Dismissal of Appeal Without Opportunity for Correction. An appeal must not be dismissed for defects or irregularities in procedure, either of form or substance, without allowing the appellant, after 7 days’ notice from the court, the opportunity to correct such defect.

(h) Appeal Perfected. An appeal is perfected when a bond, cash deposit, or statement of inability to pay is filed in accordance with this rule.

(i) Costs. The appellant must pay the costs on appeal to a county court in accordance with Rule 143a.

RULE 506.2. RECORD ON APPEAL

When an appeal has been perfected from the justice court, the judge must immediately send to the clerk of the county court a certified copy of all docket entries, a certified copy of the bill of costs, and the original papers in the case.

No Substantive Change from Prior Rules

RULE 506.3. TRIAL DE NOVO

The case must be tried de novo in the county court. A trial de novo is a new trial in which the entire case is presented as if there had been no previous trial.

No Substantive Change from Prior Rules

Text of Rule of Civil Procedure

Summary of Rule Elements

RULE 506.4. WRIT OF CERTIORARI

(a) Application. Except in eviction cases, after final judgment in a case tried in justice court, a party may apply to the county court for a writ of certiorari.

(b) Grounds. An application must be granted only if it contains a sworn statement setting forth facts showing that either:

(1) the justice court did not have jurisdiction; or

(2) the final determination of the suit worked an injustice to the applicant that was not caused by the applicant’s own inex­cusable neglect.

(c) Bond, Cash Deposit, or Sworn Statement of Indigency to Pay Required. If the application is granted, a writ of certiorari must not issue until the applicant has filed a bond, made a cash deposit, or filed a sworn statement of indigency that complies with Rule 145.

(d) Time for Filing. An application for writ of certiorari must be filed within 90 days after the date the final judgment is signed.

(e) Contents of Writ. The writ of certiorari must command the justice court to immediately make and certify a copy of the entries in the case on the docket, and immediately transmit the transcript of the proceedings in the justice court, together with the original papers and a bill of costs, to the proper court.

(f) Clerk to Issue Writ and Citation. When the application is granted and the bond, cash deposit, or sworn statement of indi­gency have been filed, the clerk must issue a writ of certiorari to the justice court and citation to the adverse party.

(g) Stay of Proceedings. When the writ of certiorari is served on the justice court, the court must stay further proceedings on the judgment and comply with the writ.

(h) Cause Docketed. The action must be docketed in the name of the original plaintiff, as plaintiff, and of the original defendant, as defendant.

(i) Motion to Dismiss. Within 30 days after the service of citation on the writ of certiorari, the adverse party may move to dismiss the certiorari for want of sufficient cause appearing in the affida­vit, or for want of sufficient bond. If the certiorari is dismissed, the judgment must direct the justice court to proceed with the execution of the judgment below.

(j) Amendment of Bond or Oath. The affidavit or bond may be amended at the discretion of the court in which it is filed.

(k) Trial De Novo. The case must be tried de novo in the county court and judgment must be rendered as in cases appealed from justice courts. A trial de novo is a new trial in which the entire case is presented as if there had been no previous trial.

No Substantive Change from Prior Rules

RULE 507. ADMINISTRATIVE RULES FOR JUDGES AND COURT PERSONNEL

RULE 507.1. PLENARY POWER

A justice court loses plenary power over a case when an appeal is perfected or if no appeal is perfected, 21 days after the later of the date judgment is signed or the date a motion to set aside, motion to reinstate, or motion for new trial, if any, is denied.

Expanded Plenary Powers

•Plenary Power enlarged to 21 days, consistent with enlarged appeal time frame

RULE 507.2. FORMS

The court may provide forms to enable a party to file documents that comply with these rules. No party may be forced to use the court’s forms.

No Substantive Change from Prior Rules

Text of Rule of Civil Procedure

Summary of Rule Elements

RULE 507.3. DOCKET AND OTHER RECORDS

(a) Docket. Each judge must keep a civil docket in a permanent record containing the following information:

(1) the title of all suits commenced before the court;

(2) the date when the first process was issued against the defendant, when returnable, and the nature of that process;

(3) the date when the parties, or either of them, appeared before the court, either with or without a citation;

(4) a description of the petition and any documents filed with the petition;

(5) every adjournment, stating at whose request and to what time;

(6) the date of the trial, stating whether the same was by a jury or by the judge;

(7) the verdict of the jury, if any;

(8) the judgment signed by the judge and the date the judg­ment was signed;

(9) all applications for setting aside judgments or granting new trials and the orders of the judge thereon, with the date;

(10) the date of issuing execution, to whom directed and deliv­ered, and the amount of debt, damages and costs and, when any execution is returned, the date of the return and the man­ner in which it was executed; and

(11) all stays and appeals that may be taken, and the date when taken, the amount of the bond and the names of the sureties.

(b) Other Records. The judge must also keep copies of all docu­ments filed; other dockets, books and records as may be required by law or these rules; and a fee book in which all costs accruing in every suit commenced before the court are taxed.
(c) Form of Records. All records required to be kept under this rule may be maintained electronically.

No Substantive Change from Prior Rules

Text of Rule of Civil Procedure

Summary of Rule Elements

RULE 507.4. ISSUANCE OF WRITS

Every writ from the justice courts must be in writing and be issued and signed by the judge officially. The style thereof must be “The State of Texas.” It must, except where otherwise specially provided by law or these rules, be directed to the person or party upon whom it is to be served, be made returnable to the court, and note the date of its issuance.

No Substantive Change from Prior Rules

RULE 508. DEBT CLAIM CASES

RULE 508.1. APPLICATION

Rule 508 applies to a claim 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.

Debt Claim Case Defined

•Assignee of a Claim

•A Financial Institution

•A Debt Collector or Collec­tion Agency

•A person or entity primarily engaged in the business of lending money at interest

RULE 508.2. PETITION

(a) Contents. In addition to the information required by Rule 502.2, a petition filed in a suit governed by this rule must contain the following information:

(1) Credit Accounts. In a claim based upon a credit card, revolving credit, or open account, the petition must state:

(A) the account or credit card name;

(B) the account number (which may be masked);

(C) the date of issue or origination of the account, if known;

(D) the date of charge-off or breach of the account, if known;

(E) the amount owed as of a date certain; and

(F) whether the plaintiff seeks ongoing interest.

(2) Personal and Business Loans. In a claim based upon a promissory note or other promise to pay a specific amount as of a date certain, the petition must state:

(A) the date and amount of the original loan;

(B) whether the repayment of the debt was accelerated, if known;

(C) the date final payment was due;

(D) the amount due as of the final payment date;

(E) the amount owed as of a date certain; and

(F) whether plaintiff seeks ongoing interest.

(3) Ongoing Interest. If a plaintiff seeks ongoing interest, the petition must state:

(A) the effective interest rate claimed;

(B) whether the interest rate is based upon contract or stat­ute; and

All Pleadings to Include the Information Described in Rule 502.2

Pleading Standards (Credit Acct)

•Account or card name;

•Account number (masked)

•Date of issue (if known)

•Date of charge-off (if known)

•Amount owed on date cer­tain; and

•Whether plaintiff seeks inter­est

Pleading Standard (Loan)

•Date and amount of original loan;

•Whether loan was acceler­ated;

•Date final payment was due;

•Amount due on payment date;

•Amount owed on date cer­tain; and

•Whether plaintiff seeks inter­est

Text of Rule of Civil Procedure

Summary of Rule Elements

(C) the dollar amount of interest claimed as of a date cer­tain.

(4) Assigned Debt. If the debt that is the subject of the claim has been assigned or transferred, the petition must state:

(A) that the debt claim has been transferred or assigned;

(B) the date of the transfer or assignment;

(C) the name of any prior holders of the debt; and

(D) the name or a description of the original creditor.

Ongoing Interest

•The effective interest rate;

•Whether interest rate is based upon contract or stat­ute; and

•The dollar amount of interest claimed as of a date certain

Assigned Debt Cases

•Statement that debt claim has been transferred or assigned;

•Date of the transfer/assign­ment;

•Names of any prior holders; and

•Name or description of the original creditor

RULE 508.3. DEFAULT JUDGMENT

(a) 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 upon the plaintiff’s proof of the amount of damages.

(b) Proof of the Amount of Damages.

(1) Evidence Must Be Served or Submitted. Evidence of plain­tiff’s damages must either be attached to the petition and served on the defendant or submitted to the court after defen­dant’s failure to answer by the answer date.

(2) Form of Evidence. Evidence of plaintiff’s damages may be offered in a sworn statement or in live testimony. The evi­dence offered may include documentary evidence.

(3) Establishment of the Amount of Damages. The amount of damages is established by evidence:

(A) that the account or loan was issued to the defendant and the defendant is obligated to pay it;

(B) that the account was closed or the defendant breached the terms of the account or loan agreement;

(C) 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) Documentary Evidence Offered By Sworn Statement. 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 to the following:

(A) the documents were kept in the regular course of busi­ness;

Requires the court to “promptly render a default judgment”

Requires that Proof of Dam­age Amount be either:

•Served on the Defendant

•Submitted to the Court

Forms of Evidence

•Sworn Statement

•Live Witness

•Documents

Requirements of Proof

•Defendant’s Account and obligation to pay

•Breach

•Amount Due

•Plaintiff if Owner of the Account

–If Acquired, then How

If Proof Relies on Documents

•Requires a Business Records Affidavit (BRA)

Requirements of a BRA

•Affidavit may be made by person other than the origi­nal issuer

Text of Rule of Civil Procedure

Summary of Rule Elements

(B) 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;

(C) the documents were created at or near the time or rea­sonably soon thereafter; and

(D) the documents attached are the original or exact dupli­cates of the original.

(5) Consideration of Sworn Statement. 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 upon by the business of the plaintiff.

(c) 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 proven. If the plaintiff is unable to prove its damages, the judge must render judgment in favor of the defendant.

(d) 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.

(e) Post-Answer 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.

•Attests to:

–Documents kept in regular course of business

–Employee obligation to make the record

–Records created at or near the time of the event

–Documents attached are originals or exact duplicates of the original.

Sworn Statements

•Judge is not required to accept if source of informa­tion or method/circumstance of preparation indicates lack of trustworthiness

•Judge cannot reject simply because the sworn statement is not made by the original creditor

Hearing May Be by Submis­sion, but Court Is Not Required to Do So

Plaintiff May Request a Hearing

•May be telephonic (Court is encouraged to minimize cost)

•Hearing must result in a judgment (No Continu­ance??)