DIFFICULTY: Legal assistance is recommended
Initial Filing Fee: $50 to $100
Small Claims Court is the place to go in Texas when someone owes you money that is not in excess of $10,000. If your claim is over $10,000 you cannot reduce the amount just to make the claim in small claims court, but you can simplify the claim to a point where you can make it in small claims court. You can also win compensation for your legal fees that brings the amount awarded to over $10,000. Anyone over the age of 18 can make a claim in the small claims court, and minors may make a claim by having a guardian accompany them to court. A partnership, association, or corporation may also make a claim in small claims court. Banks, collection agencies, and any other organization that make loans of money for interest, however, cannot use the small claims court. The advantage of small claims court over formal litigation is that often people represent themselves and lawyers, though allowed to represent someone, are not necessary for a successful claim. It is important to remember, though, that if you want someone to do anything other than pay you the money they owe you then you will need to file in a different court. Additionally, any suit against the federal government or a federal employee for actions in regard to their job must be made in federal district court. The common types of claims made in small claims courts involve contract disputes, security deposits, personal injuries, and warranties. In general, it is better to resolve a claim without going to court if possible, such as through outside organization (like the Better Business Bureau). When that fails, however, the small claims court is your best choice. In general, Texas law tends to favor the debtor (the person who owes you money), but perseverance and employing a lawyer if necessary should provide you with your money in the end.
Step 1: Decide Whom You Should Sue
It might sound a little strange, but it is important to decide the correct person to sue in any case. If you are suing an individual, then you want to sue that person. If you are suing a business, however, or something that is related to your dealings with a business, it gets more complicated. If the business is owned by one person, you will need to sue that person. If it is a partnership, you can sue either or all of the partners. To sue a corporation, however, you must sue the corporation as a single legal entity. With businesses, check with the Assumed Name department in the county clerk’s office to see who to sue. While for corporations, contact the Secretary of State to find out who the agent for service is, as they are the one who needs to be served with the legal notice later.
Step 2: Fill Out a Small Claims Form and Gather Relevant Information
You need to fill out a simple form in order to communicate what your grievances are, and you do this in the county in which you will be trying the case. In general, you need to file in the county in which the defendant resides, the county in which the related services were performed, or the county in which the defendant’s business is registered. You should consult a county’s individual website for the form (which is often listed alongside information on the local Justices of the Peace). You will also want to gather all relevant information before going to the courthouse to file the suit, including contracts, agreements, etc. This will save you time and trouble in the days to come.
Step 3: Act Quickly
The statute of limitations in Texas generally states that you have two years in which to make a claim following the time in which you suffered the wrong for which you are suing. If you wait longer than this, then chances are that the Justice of the Peace will not accept your claim and you will not be able to get your money. If your claim concerns a problem from over two years ago, consult an attorney for advice on how to proceed. The statute of limitations is referred to as an affirmative defense, however, meaning that a defendant needs to claim the statue of limitations in order to prevent an older claim from being brought against them. If they never claim it on their own, then the case can proceed.
Step 4: Submit Forms and a Small Claims Statement
Visit the clerk of the county you are filing your suit in and ask them for a small claims statement form (these are sometimes available on a county’s website as well, but there is no general form as each county has their own version). Fill out the form with your information, the defendant’s information, the amount of the claim, and the basis of the claim. Make sure to be clear and that all information is correct. If you misspell the defendant’s name, then there is no case. Next, you will swear under oath that everything you are claiming is true and you’ll pay the clerk a filing fee.
Step 5: Serve the Defendant
After filing your claim, you will pay a service fee to the clerk and they will make sure that the defendant is informed of the claim. You will need to contact the clerk after two or three weeks to find out if the defendant has been served and what date they were served. This date is important, as it helps you calculate when the defendant must respond by. The formula for calculating this is to take the date the defendant was served, add 10 days, and then add as many days necessary to get to the next Monday. This Monday is the appearance date – and it is usually a good idea to verify this date with the local clerk. You will then discuss the date of the trial with the clerk and receive a case number (which you must hang onto).
Step 6: Trial
You will attend your trial on the date you are assigned. There you will be sworn in, testify, and the judge or jury will come to a decision regarding your claim. In general, the process will be explained to you on the day of the trial. If you are ever unclear about something, just ask the judge or clerk and you should receive an immediate explanation.
Step 7: Appeals
If you wish to appeal a decision, you will need to file a Notice of Appeal form within 10 days of the decision. These forms are available through county websites as well as through the county clerk. Appeals are much more complicated than regular claims, however, and often you will want to employ a lawyer for the purposes of appealing a decision.
Step 8: Obtain an Abstract of Judgment, Writ of Garnishment, Writ of Execution, or Turn-Over Order
Upon winning a case, you need to ask the clerk of the small claims court to provide you with an Abstract of Judgment. You will then need to file the Abstract with the County Deed Records in order to give it legal effect. This also provides you with a lien on any of the defendant’s property (other than their homestead) so that you can force the sale of that property in order to pay you, if such steps are necessary. If you want to get money that is not from property, however, such as from a bank account, you should request a Writ of Garnishment from the county’s clerk of small claims and then bring the writ to the defendant’s bank to receive your money. If the defendant refuses to pay, you can request a Writ of Execution through the same method, which authorizes a constable to sell some of a person’s property to pay their debt. Finally, you can also request a Turn-Over Order from the clerk, which authorizes the judge to force a debtor to turn over money that is owed to them by someone else in order to repay their debt to you.