Small Claims Cases
Filing Small Claims Cases
Claim Must Be Made Under Oath
To begin an action in the Small Claims Court, the plaintiff, or claimant,
must make a statement of the claim under oath. This may be done by the
plaintiff, by the attorney for the plaintiff, or by an authorized agent
for the plaintiff, in one of two ways:
(1) by appearing in person before the Justice of the Peace or the clerk
and filing a statement of the claim under oath; or,
(2) by filing a sworn Small Claims Petition with the Justice of the Peace
or clerk of the court.
The Justice of the Peace must collect total fees of $34.00 for the filing
of a claim in the Small Claims Court. The filing fee is set out in Section
118.121 of the Texas Local Government Code. Other fees in Small Claims
Court are the same as those for cases in Justice Courts. Section 28.004,
Texas Government Code. Additional fees for basic civil legal services
to indigents (Section 51.941, Texas Government Code) and for an alternative
dispute resolution system (Section 152.005, Texas Civil Practice and Remedies
Code) are also applicable.
Issuance of Citation
In order for the Small Claims Court to acquire jurisdiction over the person
being sued the defendant must be notified of the filing of the lawsuit.
When the claim has been filed and the filing fee paid, the Justice of
the Peace or the clerk will issue a notice of the filing called a "citation."
The citation is directed to the defendant and informs the defendant of
the date of the filing of the petition, the case number assigned to the
claim, the names of the parties, and the nature of the plaintiff's demand.
The citation also warns that should the defendant fail to appear at the
trial of the claim a judgment by default may be rendered in favor of the
plaintiff for the amount of money the plaintiff is claiming.
Service of Citation
The Citation is served by an officer of the state authorized to serve
other citations and may be served in any manner authorized for service
of citation in a Justice Court. See Section 28.013, Texas Government Code
Citations may be served by personal delivery to the defendant, or by registered
or certified mail directed to the defendant, with return receipt requested.
If attempts to serve the defendant at the defendant's usual place of business or
usual place of abode or other place where the defendant can probably be found are
unsuccessful, the plaintiff can ask the Justice of the Peace to allow service in
another manner. The request for an alternative method of service must be supported
by an affidavit that states where the defendant can usually be found, that attempts
to serve the defendant were unsuccessful, and that the manner of service suggested
will be effective to give the defendant notice of the lawsuit. The Justice of the
Peace can then authorize service of process by leaving a copy of the citation with
anyone over 16 years of age at a specified location, or in any other manner that is
reasonably effective to give the defendant notice of the lawsuit. See Rule 536,
Texas Rules of Civil Procedure
Service Fees in Harris County
The Commissioners Court of Harris County sets the fee to be charged for
services of the Harris County Sheriff and Constables. See Section 118.131,
Texas Local Government Code. A fee of $65 is charged for service of process
in a Small Claims case in Harris County. See Harris County Civil Process
Service Outside of Harris County
For citations to be served in a county other than Harris County, the constable or sheriff of that County should be contacted for the amount of the service fee and location for forwarding the citation.
No judgment may be rendered against a defendant unless the defendant has
been properly served with process. Defendants may be natural persons,
individuals, or persons doing business in the form of sole proprietorships,
or partnerships, or corporations. Any individual doing business under
an assumed name, or any business operating in the form of a partnership
or corporation, may sue or be sued in the business name, but service of
process must be properly accomplished.
Service of process directed to individuals is effected by delivery directly
to the person. Service of process on business entities is more difficult
and must be accomplished by service on an agent or person authorized to
For example, if a defendant is a partnership, the citation may be directed
to one member of the partnership, and service effected on that one member
authorizes a judgment against the partnership and the partner actually
served. See Section 17.022, Texas Civil Practice and Remedies Code.
If several partners are jointly indebted under a contract and the citation
has been served on at least one but not all of the partners, judgment
may be rendered only against the partnership and against the partners
who were actually served. No personal judgment or execution may be had
against any partner who was not served. See Section 31.003, Texas Civil
Practice and Remedies Code.
If the defendant is a limited partnership, each general partner and the
registered agent of a limited partnership may be served with citation
in order to effect service of process. See Section 1.08 of the Texas Limited
Partnership Act, Art. 6132a-1, Texas Civil Statutes.
If the defendant is a corporation, citation may be served by serving the
corporation's president or any vice-president, or the corporation's registered
agent. If the corporation's registered agent cannot be found at the corporation's
registered office, then service of process may be made on the Secretary
of State. See Art. 2.11, Texas Business Corporation Act.
If the defendant is a limited liability company, the manager, if any,
and the registered agent shall be agents upon whom citation may be served.
See Art. 2.08 of the Texas Limited Liability Company Act, Art. 1528n,
Texas Civil Statutes.
If the defendant is a financial institution, the registered agent of the financial institution, or in the absence of a registered agent, the president or branch manager at any office of the financial institution located in this state may be served. See Section 17.028 of the Texas Civil Practice and Remedies Code.
If the defendant is a credit union organized under the laws of this state, another state, or federal law, the registered agent of the credit union or the president or vice president in the absence of such an agent may be served. See Section 17.028 of the Texas Civil Practice and Remedies Code.
To determine the exact legal nature of a business entity, the plaintiff
may look at the Assumed Name Records maintained by the Harris
County County Clerk, or contact the Corporation Division of the Office
of the Secretary of State at 512-463-5555, or the Office of the State
Comptroller at 1-800-252-1386.
"Venue" is the proper Justice of the Peace Precinct in which
the Small Claims Court may exercise its jurisdiction. As a general rule,
a suit in Small Claims Court must be brought in the county and in the
Justice of the Peace Precinct in which the defendant resides. If, however,
the defendant has contracted to perform an obligation in a certain county,
an action may be brought in the county where the obligation was to be
If there is more than one Justice of the Peace within a precinct, the
plaintiff may bring suit in any of the Small Claims Courts within the
precinct. See Section 28.011, Texas Government Code and Section 15.099,
Texas Civil Practice and Remedies Code.
Motion to Transfer Venue
A defendant may file a motion in the Small Claims Court asking that the
case be transferred to a different precinct. This request must be made
in writing at the earliest opportunity and must state why the precinct
in which the lawsuit is filed is not the proper precinct, and also state
to what precinct the action should be transferred. If the Justice of the
Peace orders that the case be transferred, the original papers will be
sent to the Small Claims Court in the proper precinct, and the parties
and witnesses will be required to appear before the Small Claims Court
to which the case was transferred. See Section 28.014, Texas Government
The Rules concerning the motion to transfer are found in the Texas Rules
of Civil Procedure, See Rule 527, Texas Rules of Civil Procedure.
Failure to Appear
If a defendant who has been served properly with citation does not file
an answer or does not appear in the Small Claims Court on the date and
at the time specified in the citation, and the plaintiff does appear,
the Justice of the Peace will enter a default judgment for the plaintiff
in the amount that the plaintiff proves is owed by the defendant.
If the plaintiff does not appear, the Justice of the Peace will enter
an order dismissing the case. This order does not prevent the plaintiff
from filing the lawsuit at a later time, if appropriate.
Either the plaintiff or the defendant who failed to appear may request
that the court set aside the decision made in their absence. This request
must be made in writing no later than the tenth (10th) day after the default
judgment or order dismissing the case was signed, and must give a good
reason for the party's failure to appear. See Section 28.031, Texas Government
Certificate of Last Known Address
The plaintiff requesting a default judgment must file a Certificate
of Last Known Address certifying to the Court the last known mailing
address of the party against whom the default judgment is taken, so that
the Court can notify the defendant of the entry of the judgment. See Rule
239a, Texas Rules of Civil Procedure.
Military Status Affidavit
The Servicemembers Civil Relief Act, 50 U.S.C. App. 501 et seq, passed
December 19, 2003, requires the plaintiff in any civil proceeding in which
the defendant does not make an appearance to file with the court a Military
Status Affidavit stating whether or not the defendant is in military
service and showing necessary facts to support the affidavit; or if the
plaintiff is unable to determine whether or not the defendant is in military
service, stating that the plaintiff is unable to determine whether or
not the defendant is in military service.
The Department of Defense maintains a website for issues pertaining to the Service member's Civil Relief Act at https://www.dmdc.osd.mil/scra/owa/home.
A person who makes or uses a military status affidavit, or statement,
declaration, verification, or certificate, knowing it to be false, shall
be fined as provided in Title 18, United States Code, or imprisoned for
not more than one year, or both.
Reasonable discovery in Small Claims Court is limited to that considered
appropriate and permitted by the judge. See Section 28.033, Texas Government
Either the plaintiff or the defendant may demand a jury trial. The request
must be made not later than one (1) day before the date on which the hearing
is scheduled. At the same time that the request is made, the party must
pay the jury fee to the justice of the peace. See Section 28.035, Texas
Government Code. The amount of the jury fee is $5.00. See Section 28.004,
Texas Government Code, and Rule 544, Texas Rules of Civil Procedure.
If either the plaintiff or the defendant is unable to attend the hearing
on the date and at the time it is scheduled, a Request
for Continuance to the court may be made to continue the hearing
to a different date. The Justice of the Peace may postpone the hearing
only for a good reason.
The goal of the Small Claims Court is to dispense speedy justice between
On the date and at the time scheduled for the hearing, the plaintiff must
appear ready to present proof of the amount he or she is claiming is owed
by the defendant. The defendant must appear ready to present proof of
any defenses he or she may have to the plaintiff's claim.
Each party may offer written records, photographs, other tangible evidence,
or the testimony of witnesses who have personal knowledge of the transaction
made the basis of the lawsuit. A concise presentation, without repetitive
testimony is the best way to present the case. The Justice of the Peace
may allow each party to make a short argument on why that party should
The hearing is informal and the Justice of the Peace may ask questions
to develop the facts of the case.
See Section 28.033 and Section 28.034, Texas Government Code.
At the conclusion of the hearing, the Justice of the Peace must make the
judgment as the justice of the case demands.
Under the law, if the judgment is in favor of the plaintiff and against
the defendant, the defendant must pay the judgment immediately. See Section
28.051, Texas Government Code.
Right to Appeal
If either the plaintiff or the defendant is dissatisfied with the decision
of the Justice of the Peace, and the amount in controversy is more than
$250.00, the dissatisfied party may appeal the final judgment to Harris
County Civil Courts at Law. The procedures for appeal are the same as
if the party were appealing from a decision of the Justice Court.
If the appeal is by the defendant, within ten (10) days from the date
of the judgment, the defendant must file an Appeal Bond, with two or more
sureties, in double the amount of the judgment. The bond is in favor of
the adverse party and must promise that the defendant will prosecute the
appeal to conclusion and pay any judgment that may be rendered by the
County Civil Court at Law.
If the appeal is by the plaintiff because the Justice of the Peace denied
the plaintiff's claim, the plaintiff, within ten (10) days from the date
of the judgment, must file an Appeal Bond, with two or more sureties,
in double amount of the costs incurred in the Small Claims Court and the
estimated costs in the county court, less any amounts that the plaintiff
may have already paid. The bond is in favor of the adverse party and must
promise that the plaintiff will prosecute the appeal to conclusion. See
Rule 571, Texas Rules of Civil Procedure.
"Sureties" are persons who guarantee that their principal will
perform the promise made, or pay the amount of the bond. To be a good
and sufficient surety, the surety should be worth at least the amount
of the bond after deducting the value of the surety's property that is
exempt from execution or forced sale, and the amount of all outstanding
debts owed by the surety. The surety should have property worth more than
the amount of the bond that is subject to execution.
If the party wanting to appeal is unable to pay the costs of appeal or
give any security for those costs, he or she is entitled to appeal by
filing a pauper's affidavit (stating such inability with the Justice of
the Peace within five (5) days from the date of the judgment. Notice must
be given to the other party of the filing of the affidavit, and the facts
of the party's inability to pay costs can be contested. See Section 28.052,
Texas Government Code and Rule 572, Texas Rules of Civil Procedure.
The Affidavit of Inability to Pay must satisfy the requirements of Rule
145 of the Texas Rules of Civil Procedure. Rule 145 requires that the
affidavit 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. The affidavit must also
state that the party is unable to pay the court costs, and that the statements
made in the affidavit are true and correct. The affidavit must be sworn
before a notary public.
The appeal must be accomplished within the times specified and follow
the procedures specified by the applicable rules of procedure. The rules
applicable to appeal from Justice Courts can be found in Part V, Section
6, Texas Rules of Civil Procedures.
When the appeal has been perfected and the transcript sent to the County
Civil Court at Law, the party appealing will be notified to pay the costs
on appeal to the County Civil Court at Law. Those costs must be paid within
twenty (20) days after being notified to do so by the County Clerk, or
the County Clerk will return all of the papers to the Justice of the Peace.
The party in whose favor the judgment was rendered may then proceed to
collect the judgment. See Rule 143a, Texas Rules of Civil Procedure.
Hearing on Appeal
Once the appeal to County Civil Court at Law has been perfected, the Small
Claims Court judgment becomes a nullity, and the County Civil Court at
Law must try the case "de novo," or over again. This means that
the parties must present their respective claims, evidence, and testimony
to the judge of the County Civil Court at Law. No further pleadings in
the County Civil Court at Law are required.
The judgment of the County Civil Court at Law may be appealed to the Court of Appeals.
See Section 28.053, Texas Government Code.
Information about Small Claims Cases
This information is furnished to you to provide basic information
relative to the law governing procedures for small claims cases in the
Harris County Justice Courts.
The Harris County Justices of the Peace and the Clerks of
the Harris County Justice Courts are not allowed to give legal advice.
You are urged to review the applicable laws and to consult an attorney
of your choice for further information or answers to specific legal questions.
You have the right to a trial by a jury and to be represented
by an attorney of your choice, or to represent yourself..
Disclaimer: The law is constantly changing and there may
be times when the information on this web site will not be current. This
information is provided for general informational purposes only and is
not intended as legal advice. This information is not a comprehensive
treatment of the subject and is not a substitute for advice from an attorney.