Small Claims & Justice Court Suits
ATTENTION:
NEITHER THE COURT NOR ITS PERSONNEL CAN GIVE LEGAL ADVICE.
The information contained in this packet is not offered as legal advice. The information is not exhaustive.
There may be other remedies and procedures not contained in these packets.
You should seek professional, licensed, legal counsel for advice.
Filing a Small Claims or Justice Court Suit: Please read this packet completely before filing your suit. Legal advice can only be obtained from an attorney. Our Court Clerks are trained in procedure only, and cannot give any legal advice. This is for the clerk’s protection as well as your own. The following procedural instructions are the only information you will receive from this office. You may need to consult an attorney to protect your interests.
There are two civil forums over which the Justice of the Peace presides: Small Claims and Justice Court. Some types of cases may be filed in either forum, while others are restricted to a certain forum. There are other similarities and differences that you should consider prior to filing suit.
THE TEXAS STATUTES
The Texas Statutes are available on-line at http://www.capitol.state.tx.us/statutes/statutes.html.
VENUE
A suit should be filed in the County and Precinct where one or more Defendants reside. (CPRC 15.082). However, there are exceptions to this rule. For further information, see “Venue in Justice Court Suits.”
JURISDICTION
A Justice Court Suit is a civil suit for money damages, possession of real property, and enforcement of liens on personal property. The amount of controversy must total $10,000 or less, interest excluded.
A Small Claims Court Suit is a civil suit for money damages only (you may not recover personal property). The amount in controversy must total $10,000 or less, interest included. For more information pleas read “Comparison of Justice Court and Small Claims Court”.
DAMAGES
The amount of money you are suing for is called “damages”. The amount of damage sought must be supported by evidence. A plaintiff may not diminish the amount of the underlying claim in order to maintain a suit in the Justice Court or Small Claims Court! For example, if a Plaintiff states that the suit is for “$10,000” and the evidence shows that the damages are actually greater than $10,000, the Court loses jurisdiction of the case, and the lawsuit must be dismissed and refilled in a Court of competent jurisdiction. Additionally, a Plaintiff cannot tell the court that the damages are greater than $10,000, but the Plaintiff is willing to “settle for less”.
PARTIES TO THE SUIT
NAME OF THE PLAINTIFF: This is the party that is instituting the suit. Only the individual(s) or company(s) named at the top of the Petition as Plaintiff(s) may collect a Judgment in favor of the Plaintiff. You must sue the Defendant(s) in their proper legal capacity.
As an Individual: You must sue the Defendant individually in the following two situations: (1) the Defendant is personally responsible to you for damages he/she may have caused you, and (2) the Defendant as an individual operating a proprietorship or partnership is responsible to you for damages he/she may have caused.
As a Proprietorship or Partnership: A proprietorship or partnership is a business that is not incorporated, but has filed an “Assumed Name” with the County Clerk. For example, “John Smith, d/b/a Smith Plumbing Company.” To determine whether a company or an individual has an assumed name you must contact the County Clerk’s office in the County where the company is located.
As a Corporation: If the business that has injured you is incorporated, you must contact the State Comptroller’s Office at (800)252-1386, or the Secretary of State at (512) 463-5555. Ask for the name and address for service of the Registered Agent for service of the corporation (the President or Vice-President will also work). For example: when completing your complaint, the name of the Defendant should read “ABC Corporation, by serving John Smith, Registered Agent.
CITATION
Each Defendant must be served personally, usually by a Constable or Sheriff, in the County where the Defendant is located. Fees for service vary by County: Hays County charges $65.00 per Defendant and payment can be included with payment of the filing fee to the Court.
If the Defendant is to be served in a County other than Hays, you need to call the Sheriff’s Office or Constable for the County in which the Defendant will be served. Ask who serves civil citations for Justice Court suits in that County and call the appropriate office. Find out the name, address, service fees for civil citations, and what form of payment is acceptable. Payment must be separate from the filing fee to the Court.
It is your responsibility to ensure service of your citations. If you obtain a better address for the Defendant, call the agency and provide the new information as soon as possible.
NOTE: Except for citations and papers served by personal process, you must mail a copy of all papers filed with the Court to all other parties to the lawsuit.
COST OF COURT
Filing fees + Service fees (see “Citation” above)
Small Claims Filing Fees are $51.00 Justice Court Filing Fees are $51.00
If paying by check please make them payable to: Hays County
STATING YOUR CLAIM
State the nature of your claim briefly; summarize in as little words as possible the reason for your claim.
AFTER SUIT IS FILED (SERVICE OF CITATION)
After you have filed your petition the Court will issue and forward the Citation(s) to the Constable or Sheriff’s office you have indicated for service on the Defendant(s). It is your responsibility to ensure service of your Citation. Check periodically by telephone with the Constable or Sheriff’s office directly.
ANSWER
Once the Citation has been served the Defendant must file a written answer to the suit on or before the Monday next following the expiration of ten days, beginning with the date of service, or as directed by the citation. If he/she fails to do so, you may be notified by the Court to appear for a “Default Hearing”. You will be asked to briefly state the facts of your case and present any documentation to substantiate those damages. You MUST prepare a written itemization of your damages. In some instances a default judgment can be issued solely off a sworn account.
ADRESSES AND ADDRESS CHANGES
Each party or the party’s attorney must provide the Clerk of the Court with written notice of the party’s name and current residence or business address. Failure to provide this information may result in a fine of not more than $50.00.
The notice must be provided at the time the party files its initial pleadings with the Court or not later than 7 days after the Clerk of the Court requests the information.
If the party’s address changes during the course of a civil action, the party, or the party’s attorney must provide the Clerk of the Court with written notice of the party’s new address.
Information provided to the Clerk of a Court under this section is confidential and may not be disclosed to the public without the express authorization of the Court.
SERVICE MEMBER’S CIVIL RELIEF ACT (SCRA)
If the Defendant does not file an answer to the lawsuit, or does not appear in Court, the Plaintiff will NOT be able to receive a “default judgment” unless the Plaintiff first files with the Court a Service members’ Civil Relief Act Affidavit stating, under oath, that the Defendant is not in the military service on active duty status. A false statement in this affidavit is a violation of Federal Law. If a Plaintiff does not have personal knowledge of the Defendant’s military status, the Department of Defense has a procedure for obtaining a status record. You may call Defense Manpower Data Center at (703) 696-6762.
REPRESENTATION
In Small Claims Court, a party may represent himself regardless of whether he is an individual, proprietorship, or corporation. In Justice Court, however, a corporation must retain counsel (an attorney). Parties cannot be represented by non-attorney agents in either venue. The Texas Rules of Evidence and Texas Rules of Civil Procedure are in effect in Justice Court suits, but not in Small Claim suits.
TRIAL PREPARATION
TRIAL
If the Defendant files a written answer your case should be set for trial depending on the availability of the Court. You will receive written notice of your court date. If you change your address or phone number please notify the Court immediately. Please arrive on time for your scheduled trial or hearing.
Parties who are not represented by attorneys should prepare carefully for trial. Please refer to the
Small Claims Hearings Trial Preparation Tool enclosed.
DISCOVERY
Discovery is a broad term used to describe many different ways of obtaining information and evidence prior to trial, to be used at trial. While discovery is common in Justice Court cases, the permission of the Judge must be sought for limited discovery in Small Claims cases.
Examples of discovery include:
∙ Interrogatories (written questions requiring sworn answers);
∙ Requests for Admissions (written statements requiring sworn admission or denial);
∙ Requests for Production (written requests to produce evidentiary items for examination by the opposing party prior to trial)
Less common at the Justice Court level, oral depositions of witnesses are taken before a court reporter. Most discovery documents come with directions attached. Read them carefully! Failure to respond to discovery in a timely manner may result in the loss of the case.
NO WRITTEN RECORD
The Justice of the Peace forums are not “courts of record”. There is no court reporter recording witness testimony. Recording devices are not permitted without the Judge’s prior consent.
SUBPOENAS
Witnesses: If there are witnesses who will not come to Court voluntarily, you may request that a Subpoena be prepared and served to secure their presence in Court. This should be done at least two weeks before trial in order to allow for service of the Subpoena. The Court does not guarantee that service will be obtained. Successful service of witness subpoenas is your responsibility. There is not a charge for the Court to issue a Subpoena, but there is a service fee (See “Citation” above), and a $10.00 bill must be attached to the top of the Subpoena.
Evidentiary Subpoenas: If the Defendant or any other witness has documentation, that you do not have, and that is necessary to prove your case, you may have the person who has control of the evidence subpoenaed to bring the documentation to Court. The items you want must be listed clearly and attached to the Subpoena. All of the other information mentioned above is also applicable to evidentiary subpoenas.
JURY REQUEST
If you desire a trial by jury you must pay a jury fee of $5.00 at least two working days (48 hours) prior to trial. Requests for a jury trial ordinarily require the trial date to be reset. Jury trials often last several hours longer. You will be required to attend a pretrial conference with the Judge and the other party to determine what the issues for the jury will be.
MOTIONS FOR CONTINUANCE
All motions for Continuance, or requests to reset the Court date, must be in writing and received by the Court no later than five working days prior to your Court date. Weekends and Holidays are excluded. The Plaintiff and the Defendant are each entitled to request one reset “only for good cause”, and all other reset requests must be made by agreement of both parties. (Gov’t. Code 28.033)
WHAT HAPPENS AFTER TRIAL?
APPEAL INFORMATION
Either party has five days in which to file an appeal in the case of a Forcible Entry and Detainer case and ten days to file an appeal in a Justice Civil or Small Claims case. An appeal bond and “Notice of Appeal” must be filed with the Court on or before 4:30 p.m. on the last day the appeal can be filed. Appeals filed after this date will be denied.
∙ Contact the Court and find out the amount of the appeal bond required for your appeal.
∙ Prepare a Notice of Appeal, file it with the Court and mail a copy to the opposing party by certified mail, return receipt requested.
∙ Prepare a Surety Bond for the entire amount of the Appeal Bond required by the Court.
The Court will then prepare a Transcript of the pleadings on file in your case and send it to the County Clerk’s Office. All Court contact from this point will be with them at (512) 393-7330. There will be filing fees required from them, and they will contact the party who is appealing regarding the payment of those fees.
MOTION FOR NEW TRIAL
Motions for New Trial must be filed in writing within five (5) days from the date of the Judgment. No motion for new trial is allowed by Statute in an Eviction suit.
COLLECTION OF JUDGMENTS
If you receive a Judgment against the Defendant and the Defendant does not file a Motion for New Trial within five days, does not file an Appeal within the time allotted, or does not pay the Judgment within ten days you may seek other remedies to collect your Judgment. The Justice Court can not assist you in collection of your Judgment. Below are listed some remedies that are available to you, and that may assist you in the collection of the Judgment.
∙ ABSTRACT OF JUDGMENT: You may obtain an Abstract of Judgment any time after the 11th day from the date of Judgment. The cost of an original Abstract is $5.00, and you may obtain them from the Court. The Abstract may then be filed in the office of the County Clerk in any County where you may think the Judgment Debtor may own real property.
∙ WRIT OF EXECUTION: You may obtain a Writ of Execution any time after the 30th day from the date of Judgment. A Writ of Execution allows a Sheriff or Constable to try and seize certain non-exempt property from the Defendant. If property is seized, an auction will be held and the proceedings from the sale will satisfy your Judgment. The cost of a Writ of Execution varies from County to County, and you may also want to contact the Constable or Sheriff in that County to discuss what items are considered non-exempt and my be subject to execution.
∙ WRIT OF GARNISHMENT: A Writ of Garnishment is available 30 days after the date of Judgment. This is a new lawsuit and is a complicated procedure. We recommend that you consult an attorney.
MEDIATION
The Court and its staff cannot negotiate settlement for you. Some disputes--like those between relatives and neighbors--are best handled by an agreement reached through mediation as an alternative to litigation. Other cases that lend themselves to mediation are suits where the relationship between the parties is likely to outlive the judgment—or where performance is desired, such as completion of a construction job. Even if mediation is unsuccessful, it serves as an opportunity for the parties to determine what the issues are before appearing in Court.
Some mediators work for profit, and others operate as non-profit agencies. Some mediators are licensed attorneys and some are not.
Mediation is private, faster and often less expensive that the court system, deals with both feelings and issues, helps restore peace and improve and restore relationships.
Mediators can be located through the local Bar Association or the telephone book under “Mediators”. Occasionally the Judge of the Justice Court will order parties to mediation as part of the Court process.
USEFUL TELEPHONE NUMBERS
TEXAS:
Secretary of State 512-463-5701 Comptroller 1-800-252-8880
HAYS COUNTY:
Constable, Pct.1 512-393-7730 Constable, Pct. 2 512-268-0785
Constable, Pct.3 512-847-5532 Constable, Pct. 4 512-858-7605
Constable, Pct.5 512-295-3030 County Clerk 512-393-7330
District Clerk 512-393-7660
Basic Information Necessary for Civil Hearings
Pro Se Plaintiff
Organize your documents and practice what you want to say before coming to court. You will have a maximum of 10 minutes to present your basic case. (The Judge will allow you to respond to the Defendant’s evidence, if any, and the judge may ask questions, if necessary. There will be NO opportunity for cross-examination.)
1. Identify yourself.
∙ By name
∙ By status (President of the Company; Bookkeeper; Business Owner)
2. State the nature of your claim in one sentence.
Unpaid bill for services, property damage, balance of a loan, etc.
3. State the pertinent dates, for example:
∙ The date a loan was made, the dates payments were due and the date of default
∙ The date a contract or lease was made, the dates for performance, the date the contract was breached
∙ The date of an auto accident or when other property damage occurred
4. State the details of any agreements, for example:
∙ There was an oral agreement, made between Jim and me that I would lend Him $500 to be paid back at $100 a week, beginning June 1, 2001 and ending July 7, 2001
∙ The defendant owned the garage where I took my car to have a new water pump installed. They gave me a written estimate of $300 for parts and labor and said it would be finished in 2 days.
∙ We signed a written contract for the defendant to remodel my bathroom by tearing out the existing tile, purchasing and installing new tile, and cleaning up the construction debris. The total price was $1,000, and I paid a deposit of $500 before the job started. I paid for the materials at the hardware store. The job was supposed to start on June 4 and finish by June 27.
5. State the details of liability (fault), for example:
∙ The defendant failed to pay the last two payment of $100.
∙ The defendant installed a pump and I paid him $300. The pump failed the next day and the garage refused to replace it.
∙ The defendant never showed up to work on the bathroom and kept my deposit.
∙ My car was stopped at the light and the defendant rear-ended my car.
6. State the details of how you calculated your damages, for example:
∙ The two payments the defendant failed to make total $200.
∙ I had to purchase another pump for $150, and paid a different garage $200 to install it. I think the defendant should have to return the $300 I paid for the first faulty pump.
∙ Since no work was done, and my check was cashed, I am asking for my $500 deposit back.
∙ The defendant has no auto liability insurance and I had to pay $1,000 to Jim’s garage to replace the bumper and paint the fender.
7. Produce the documents that support your claim, for example:
∙ Contracts, estimates, work orders or promissory notes.
∙ Photographs of damaged property (before and after, if available) (NOTE: Videotapes are rarely of a quality good enough to be helpful to the court and are extremely time-consuming. The Judge will decide if you will be able to show a video. If you must show a videotape, please have it rewound to the proper starting point).
∙ Bills for repair or replacement and repair estimates.
∙ Cancelled checks or bank records.
∙ Title documents.
∙ Accident reports.
8. Witness testimony, only if necessary
∙ Witness testimony is helpful if there is a dispute about the terms of an oral agreement or the condition of property when no photos are available.
THIS IS NOT A SCRIPT!
IT IS A TOOL TO ASSIST A NON-LAWYER IN MAKING
AN ORDERLY PRESENTATION