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Justice or Small Claims:
In which court should I file?

DISCLAIMER:
This is general information only concerning uncontested procedural matters. It does not purport to cover substantive law or address the merits of your lawsuit and is not a substitute for sound legal advice from an attorney. The Court Clerks are not attorneys and are prohibited from discussing the facts of your case or answering any legal questions.

Within the limitation of certain legislation and rules, the Plaintiff (the person filing the suit) has the option to file suit against the Defendant (the person being sued) in either the Justice Court or Small Claims Court.

The filing and service fee in Small Claims for a lawsuit against one Defendant in Webb County is $111.00. The filling and service fee for an eviction case is $131.00.

Below is a list of differences between the courts. Please read this information carefully before making your decision regarding the court in which to file.

Justice Court

Monetary Jurisdiction up to $10,000
(excluding interest and attorney fees)

The Texas Rules of Civil Procedure and Texas Rules of Evidence apply

A party primarily engaged in the business of lending money at interest or a collection agent or agency must file in justice court. Failure to comply with this rule may result in the case being dismissed and the Plaintiff forfeiting all costs.

An individual or an individual doing business under an assumed name may represent themselves or may be represented by an attorney.







Small Claims Court

Monetary Jurisdiction up to $10,000
(including interest and attorney fees at time of filing)

The Court can grant a judgment only for money damages in Small Claims Court

Formal pleading is not required. Discovery is limited as permitted by the Judge. The Judge hears evidence from the parties and witnesses in an informal hearing.


A party primarily engaged in the business of lending money at interest or a collection agent may not file in Small Claims Court.

Either party may be represented by an attorney, but an attorney is not required. A non-attorney agent may file the lawsuit but may not represent either party at trial.


Filing Suit

Step 1. Decide if you are going to sue the Defendant in Justice Court or Small Claims Court.

NOTE:
You cannot file suit in either the Justice Court or Small Claims Court if your claim is for more than $10,000. Instead, you will file in a County or District Court.  If you would like to file for property it must be done at the County or District Court.

The information on “In which court should I file?” outlines the differences between the courts. Please read this information carefully before deciding in which court to file.

Step 2. Complete the form called “Plaintiff’s Original Petition.”

◦Provide a daytime phone number and notify the Court immediately of changes in your address or phone number.
◦ Be as specific as you can about the named Defendant and the capacity in which the Defendant is being sued. Your failure to properly name the Defendant could result in your losing your lawsuit or being unable to collect on a judgment. The three most common legal entities are:

1.Individual (example: John Doe)
2. Sole Proprietor or Partnership (example: John Jones dba Sparkle Cleaners)
3. Corporation (example: Superior Builders, Inc.)

Step 3. File the Plaintiff’s Original Petition and pay the court costs/filing fees.

Step 4. Services of Process. A citation attached to your filed Petition will be served on the Defendant by a Constable or Sheriff’s officer. The Citation tells the Defendant the deadline for answering the lawsuit. You should receive court notice of the date/time by mail.

Step 5. Default Judgment or Contested Hearing: Your case is decided.
If the Defendant does not file an Answer to your Petition within the allotted time, you may receive a “Default Judgment.” A Default Judgment means that a short hearing will be held before the Judge without notice to the Defendant.

It is your responsibility to call the Court and schedule a time for your Default Hearing.
◦Prepare your documents and testimony in advance to show the judge exactly how you arrived at the amount of damages that you are claiming.

The Defendant can file an answer with the Court at any time before the judgment is entered. This answer will entitle the Defendant to a “Contested Hearing.” If a Contested Hearing is held, the Plaintiff has the burden of proving his or her claims to the Court.

◦ The Court will consider only testimony and other evidence available in the Courtroom at the time of the trial.
◦ Have copies of all the documents you intend to use at the hearing available for the Court and Defendant.
◦ Be aware that notarized statements from individuals, although admissible, have little value compared to live testimony.
◦ Involuntary witnesses may need to be subpoenaed (ordered to appear in court).

Step 6. Judge’s Decision.

Step 7. Collection of the Judgment (if any).

This information is not legal advice and is no substitute for the advice of an attorney.

Note: Please don’t ask the clerks or Judges for legal advice. The Judge and the court staff are not allowed to give you legal advice or act as your attorney. When you choose to represent yourself in court, it is your responsibility to protect your rights by informing yourself of law and procedures that affect your case. Please note that evictions are only for past due rent.


Steps for Evictions

1. An eviction must be filed in the Justice precinct where the rental property is located. If you do not know the Justice precinct of the property please contact the elections office at 956-523-4055.

2.Texas Property Code, Sec. 24.005 sets out the notice requirements for eviction suits. (Unless the notice requirements are stated in the signed lease.)

3.The notice to vacate must be in writing and should be unconditional, i.e., it should tell the tenant to vacate by a specific date in no uncertain terms.

4.Unless there is an agreement between the parties shortening the notice requirements, the landlord must wait three days after the notice to vacate is served before filing the eviction.

5.When filing, the landlord should bring the following:
    a.Two copies of the lease
    b. Two copies of the notice to vacate
    c. $131.00 for filing and service on one person
    (additional service is $100.00 per person)
    d. All work and residence addresses and telephone numbers of the tenant(s)     known by the landlord.

6.Generally, all parties named in the lease should be sued and served with a citation in the eviction proceeding. Any judgment granted will run only against those who are specifically named and served.

7.The owner's agent may file any type of eviction suit and may represent the owner at any default judgment hearing. If the case is contested an agent may represent either party if the case involves non-payment of rent or holding over. The parties or their attorneys must try all other types of evictions if the case is contested.

8. A default judgment for eviction will only be granted if the defendant is not present at trial the file must contains:
    a. A return from the constable showing the defendant was properly served
    b. A copy of the notice to vacate
    c. A copy of any written lease

9. A personal appearance and sworn testimony will be required of the landlord or agent for a judgment for rent to be awarded or where the file is incomplete (see # 10 above)

10. A court date will be set at the time the eviction is filed with the court. This date will mailed to the known address of the defendant. Both parties are expected to appear at that date/time. Any continuance request must be in writing, timely and agreed to by all parties.

11.Under the Texas Rules of Civil Procedure, either party to the lawsuit has five days to appeal the courts decision. The filing of an appeal bond or paupers oath by that time completes the appeal. A properly filed appeal stops all further justice court proceedings until there is a resolution by the county court-at-law.

12. If neither party appeals, the landlord may obtain a Writ of Possession from the court after the five (5) day period for appeal has passed. The writ fee of $111.00 is payable to JP court to cause the tenant to vacate the premises. Questions involving the execution of the writ should be directed to the appropriate constable's office.

13. An Immediate Possession Bond can speed the evictions process. A corporate or affidavit of surety bond must be filed with the court. Ask the civil clerk for details.

Forms

Note:
The links to Word documents on this page will open in a new window browser. 

Eviction Petition
Plaintiff's Original Petition
Peace Bond






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