502 - Institution of Suit

Contents

To initiate a suit, 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.

Justice Court Civil Case Information Sheet

A justice court civil case information sheet, in the form promulgated by the Supreme Court of Texas, must accompany the filing of a petition and must be signed by the plaintiff or the plaintiff’s attorney. The justice court civil case information sheet is for data collection for statistical and administrative purposes and does not affect any substantive right. The court may not reject a pleading because the pleading is not accompanied by a justice court civil case information sheet.

Fees & Statement of Inability to Afford Payment of Court Costs

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 Statement of Inability to Afford Payment of Court Costs. Upon filing the Statement, the clerk must docket the action, issue citation, and provide any other customary services.

Supreme Court Form / Contents of Statement

The plaintiff must use the form Statement approved by the Supreme Court, or the Statement must include the information required by the Court-approved form. The clerk must make the form available to all persons without charge or request.

Certificate of Legal-Aid Provider

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 legal-aid provider described in Rule 145(e)(2), the attorney may file a certificate confirming that the provider screened the party for eligibility under the income and asset guidelines established by the provider. A Statement that is accompanied by the certificate of a legal-aid provider may not be contested under (d).

Contest

Unless a certificate is filed under (c), the defendant may file a contest of the Statement 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 afford the fees. At the hearing, the burden is on the plaintiff to prove the inability to afford fees. 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 afford fees. 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.

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.

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:

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.

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.

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.

Procedure

• Judge to Set Hearing - If a defendant files a motion to transfer venue, the judge must set a hearing on the motion.
• Response- A plaintiff may file a response to a defendant’s motion to transfer venue.
• 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.
• 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.
• Review - Motions for rehearing and interlocutory appeals of the judge’s ruling on venue are not permitted.
• 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.
• 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.

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.

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.

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
3. If the defendant consents to email service, a statement consenting to email service and email contact information.

General Denial

An answer that denies all of the plaintiff’s allegations without specifying the reasons is sufficient to constitute an answer or appearance and does not bar the defendant from raising any defense at trial.

Answer Docketed

The defendant’s appearance must be noted on the court’s docket.

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; and
2. If the 14th day falls on a day during which the court is closed before 5 pm, the answer is due on the court’s next business day.

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 pm, the answer is due on the court’s next business day.

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 Statement of Inability to Afford Payment of Court Costs. 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.

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 Statement of Inability to Afford Payment of Court Costs. 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.

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 Statement of Inability to Afford Payment of Court Costs. A citation must be issued and served as provided by Rule 501.2.

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.

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.