Fifth Edition
The State Bar of Texas, through its TexasBarBooks Department, publishes practice books prepared and edited by knowledgeable authors to give practicing lawyers and judges as much assistance as possible. The competence of the authors ensures outstanding professional products, but, of course, neither the State Bar of Texas, the editors, nor the authors make either express or implied warranties in regard to the use or freedom from error of this publication. In the use or modification of these materials, each lawyer must depend on his or her own expertise and knowledge of the law.
IRS CIRCULAR 230 NOTICE: To ensure compliance with requirements imposed by the IRS, we inform you that (1) this written material was not intended or written by the author(s) to be used for the purpose of avoiding federal penalties that may be imposed on a taxpayer; (2) this written material cannot be used by a taxpayer for the purpose of avoiding penalties that may be imposed on the taxpayer; (3) this written material cannot be used in promoting, marketing, or recommending to another party any tax-related transaction or matter; and (4) a taxpayer should seek advice based on the taxpayer’s particular circumstances from an independent tax advisor.
The use of the masculine gender in parts of this manual is purely for literary convenience and should, of course, be understood to include the feminine gender as well.
International Standard Book Number: 978-1-938873-82-9
Library of Congress Control Number: 2020942904
© 2020 State Bar of Texas
Austin, Texas 78711
All rights reserved. Permission is hereby granted for the copying of any part of this publication by a photocopy or other similar process or by manual transcription, by or under the direction of licensed attorneys for use in the practice of law. No other use is permitted that will infringe the copyright without the express written consent of the State Bar of Texas.
Printed in the United States of America
Fifth Edition, 2020
The State Bar of Texas, through its TexasBarBooks Department, publishes practice books prepared and edited by knowledgeable authors to give practicing lawyers and judges as much assistance as possible. The competence of the authors ensures outstanding professional products, but, of course, neither the State Bar of Texas, the editors, nor the authors make either express or implied warranties in regard to the use or freedom from error of this publication. In the use or modification of these materials, each lawyer must depend on his or her own expertise and knowledge of the law.
IRS CIRCULAR 230 NOTICE: To ensure compliance with requirements imposed by the IRS, we inform you that (1) this written material was not intended or written by the author(s) to be used for the purpose of avoiding federal penalties that may be imposed on a taxpayer; (2) this written material cannot be used by a taxpayer for the purpose of avoiding penalties that may be imposed on the taxpayer; (3) this written material cannot be used in promoting, marketing, or recommending to another party any tax-related transaction or matter; and (4) a taxpayer should seek advice based on the taxpayer’s particular circumstances from an independent tax advisor.
The use of the masculine gender in parts of this manual is purely for literary convenience and should, of course, be understood to include the feminine gender as well.
International Standard Book Number: 978-1-938873-82-9
Library of Congress Control Number: 2020942904
© 2020 State Bar of Texas
Austin, Texas 78711
All rights reserved. Permission is hereby granted for the copying of any part of this publication by a photocopy or other similar process or by manual transcription, by or under the direction of licensed attorneys for use in the practice of law. No other use is permitted that will infringe the copyright without the express written consent of the State Bar of Texas.
Printed in the United States of America
Fifth Edition, 2020
Stuart R. Schwartz, Chair
Daniel J. Goldberg, Chair (1975-2013)
Bruce A. Atkins
Donna Brown
Patrick J. Dyer
Matias "Matt" Eduardo Garcia
David W. Roth
Stuart R. Schwartz
Casey S. Stevenson
Barbara M. Barron
Roger A. Bartlett
Mike Bernstein
Mark Blenden
M. H. "Butch" Cersonsky
C. A. (Joe) Davis
David Fritsche
Matthew Fronda
W. Dean Hester
Mike Bernstein
James Lombardi
Stephanie Kaiser
John Mayer
Jacquelyn D. McAnelly
Ian A. McCarthy
Stephen L. Meador
Manuel H. Newburger
Rachel L. Noffke
Ralph Martin Novak, Jr.
Hon. David M. Patronella
Richard J, Rabago
Peter Ruggero
Stephen Sather
Michael J. Scott
Richard Simmons
Darlene Payne Smith
Allison J. Snyder
Mark W. Stout
2020-2021
Larry P. MacDougal, President
John Charles "Charlie" Ginn, Chair of the Board
Rebekah Steely Brooker, Chair, Board Professional Development Subcommittee
Scott Rothenberg, Chair, Committee on Continuing Legal Education
Trey Apffel, Executive Director
TexasBarBooks
2020
Sharon Sandle, Director
Jill Hoefling, Assistant Director
James W. Norman, Project Publications Attorney
Elma E. Garcia, Publications Attorney
Courtney H. Giesinger, Publications Attorney
Sarah F. Henson, Publications Attorney
Susannah R. Mills, Publications Attorney
Vickie Tatum, Publications Attorney
Michael Ambrose, Senior Editor
Courtney Cavaliere, Editor
Thomas Ostmeyer, Editor
Roger Siebert, Editor
Travis Riddle, Production Supervisor
Jennifer Townsend, Production and Editorial Assistant
Cynthia Day, Meeting Coordinator
Lara Talkington, Marketing Coordinator
Conor Jensen, Website Manager
Jennifer Karlsson, Web Content Specialist
Jennifer Perez, Web Content Specialist
Throughout the years, the Texas Collections Manual has been the product of selfless volunteers—highly experienced attorneys with busy practices who have given much of their time, talent, thought, and energy to improving the quality and practice of law in Texas. The 2020 edition is no exception.
Attorneys will find the extensive revisions and new material in this new edition of great help in many different areas of Texas law practice. The value of this manual goes far beyond a collections practice. It is just as importantly an invaluable primer on Texas litigation and rules of procedure, in particular, the chapters on Causes of Action, Jurisdiction and Venue, Service of Process, Discovery, and Trial Procedure.
We are also excited to announce that Texas Collections Manual now resides online as well as in print and downloadable form. The many advantages of an online subscription include search functions, hyperlinks to statutes, cases, and other online resources, and downloadable forms. Importantly, practitioners wishing to propose changes or edits to the manual will be able to contact the editorial committee at books@texasbar.com for quick review and ongoing edits.
As before, this edition of the manual would not have been possible without the deeply appreciated work of its contributing authors. Michael Bernstein, Mark Blenden, M. H. “Butch” Cersonsky, David Fritsche, Matthew Fronda, Stephanie Kaiser, John Mayer, Jacquelyn McAnelly, Ian McCarthy, Stephen Meador, Hon. David Patronella, Peter Ruggero, Michael Scott, Richard Simmons, Allison Snyder, and Mark Stout each enhanced the manual in ways that will be highly useful to any collections practice. And we are always grateful to Judge Bill Parker for allowing us to include the invaluable and updated practice guide used in the U.S. Bankruptcy Court for the Eastern District of Texas.
Finally, the Committee would like to express its gratitude to Sharon Sandle, Jim Norman, and the Texas Bar Books Department of the State Bar of Texas for their support and dedication in producing this publication.
Stuart R. Schwartz, Chair
The Texas Collections Manual, Fifth Edition, is more than a form book. It is a practice guide for attorneys in Texas who handle collections matters. This fourth edition of the manual reflects major changes in organization from the previous edition, with significant improvements for the user. The manual is organized by the logical sequence of events that would occur while following a collections matter from beginning to end. Each chapter contains a detailed table of contents; each contains practice notes concerning the topic of the chapter. The forms take up the greater part of most chapters. The uniform format of practice notes and forms, organized according to a simpler, more logical numbering scheme, is designed to enhance readability and ready reference and to accommodate easier word-processing use of the forms.
The practice notes are short synopses of the law, designed to serve as a primer to the very basic matters involved in a particular chapter. These notes are, at most, black-letter law and do not try to resolve questions in controversial areas. For the attorney experienced with collections matters, these notes should serve as a reminder of some of the basics; for the attorney not so experienced, they should provide an orientation to the major matters with which the attorney needs to be concerned when contemplating a particular cause of action.
Although the notes are not intended as a treatise on collections matters, they contain much important information that must be understood before the forms may be used responsibly.
The forms (except those promulgated by the Office of the Secretary of State or bankruptcy courts and those derived from the Bankruptcy Code) were prepared by members of a committee of experts in the collections field, and great care has gone into their preparation. The forms represent the best thinking of the practicing attorneys on the committee. Perfection is hard to achieve, however, and each attorney using these materials must depend on his or her own expertise and knowledge of the law; there is no substitute in a particular case for the legal mind. Thus, care should be taken to ensure that any form used fits the case and treats the problems of that case.
Within major sections of the text of forms, optional paragraphs or items are usually identified by boxed instructions. Because the manual can cover only relatively common situations in collections cases, language needed to address an atypical issue in a particular case may not appear in the form. The user must take care both to eliminate language appearing in the form that is not appropriate for the particular case and to add any language needed for the particular case that does not appear in the form.
Two typefaces are used in the forms. Material in Times Roman (like most of this page) is appropriate for inclusion in a finished form. In contrast, Arial type is used for boxed instructions. When Arial type is used within the form itself (rather than in a box), it appears in boldface for emphasis.
Several types of bracketed material appear in the forms.
Choice of terms. In a bracketed statement such as “[a writ of execution/an order of sale],” the user must choose between the terms or phrases within the brackets. The choices are separated by forward slash marks.
Optional words. In a phrase such as “Note [and Security Agreement],” the user must determine whether to include the phrase “and Security Agreement.”
Substitution of terms. In a bracketed statement such as “[name of judgment debtor],” the user is to substitute the name of the judgment debtor rather than typing the bracketed material verbatim.
Instructions for use. Material such as “[include if applicable: . . . ]” and “[set out venue facts]” provides instructions for completing the finished form and should not be typed verbatim in the document. Bracketed instructions at the beginning of almost all the forms refer the user to section 3 of this introduction for instructions about composing the caption of the form.
Subtitles. The titles of some forms are followed by a bracketed subtitle that is not to be typed as part of the form title. In the title “Judgment [Based on Jury Verdict],” for example, the bracketed words simply distinguish the form from another similarly titled form in the same chapter for ease of reference.
Signature lines appear as blank lines. Spaces for dates, times, and amounts that would be filled in after the document is prepared also appear as blank lines. (If an actual date, time, or amount should be inserted in the form when it is prepared, “[date],” “[time],” or “$[amount]” appears instead.)
Language in boxes is not to be typed in the finished document but constitutes instructions, usually either telling the user whether to use the form language following the box, describing what information should be included at that point in the finished document or attached to it, or providing cautionary reminders about use of the form language.
Forms are numbered in sequence within each chapter. All forms begin with the number of the chapter, which is followed by a hyphen and the number of the form within the chapter. Some forms in chapter 9 consist only of clauses to be inserted in other forms. In these instances the clauses are numbered in sequence using the form number, followed by the number of the clause—for example, clause 14-27-1 in form 14-27. This system is used to permit future expansion of any chapter without requiring the rearrangement of the entire book.
An example of the caption that should precede the form title is not reprinted in the forms that require it. Typical case styles are discussed in section 3 below.
The online subscription version of the Texas Collections Manual contains electronic versions of all State Bar of Texas–copyrighted forms from the manual as editable Word files as well as printable or downloadable PDF files of selected forms linked from those forms’ pages for easy retrieval.
Applicable Texas and federal case and statute citations in the practice notes and forms instructions are linked to case reports and main code sections cited via Casemaker online.
Caveat: Note that the word-processing forms included with the online subscription contain instructional language as hidden text. Be aware that this language will be included in your completed forms unless you specifically delete it.
1. Court designations for caption of petition
Although no statute or rule prescribes the form for identifying in the caption the state court in which the petition is filed, the court and county should be named. If one of several courts may hear the case, as in counties with several district courts and county courts at law, the caption should have a blank on which the clerk can write the appropriate number when the petition is filed. The court designations set out below are recommended for captions.
The generally accepted appearance for captions in Texas pleadings has the cause number at the top center of the first page, the parties on the left, the court designation on the right, and a dividing line between the two, as set out below. Some counties may reverse the appearance of the court and cause number.
If a document filed in a civil case is required to contain sensitive data, the filer must notify the clerk by (1) designating the document as containing sensitive data when it is electronically filed or (2), if the document is not electronically filed, including on the upper left-hand side of the first page, the phrase: “NOTICE: THIS DOCUMENT CONTAINS SENSITIVE DATA.” Tex. R. Civ. P. 21c(d). See section 1.40 in chapter 1 of this manual for additional information concerning sensitive data.
In drafting the manual, the members of the committee devoted a great deal of effort to making it error free, but it undoubtedly contains some errors. We would appreciate your pointing out any errors you find in the manual, as well as any revisions you believe are advisable. Please mail any corrections or suggestions to the following address:
Director, TexasBarBooks
State Bar of Texas
P.O. Box 12487
Austin, TX 78711-2487 books@texasbar.com
Periodic updating of the manual is planned to reflect changes in the law. It is also expected that, over time, additional topics will be covered and the scope of coverage of existing topics will be expanded. We welcome your suggestions about new topics that you would find helpful. Please send your suggestions to the address shown above.