Comparison of Justice Court And Small Claims Court
GC = Government Code
CP & RC = Civil Practice and Remedy Code
ROE = Rules of Evidence
RCP = Rules of Civil Procedure Topic Justice Court Small Claims Court Jurisdiction Amount $10,000.00 exclusive of interest (G.C. 27.031) $10,000.00 including interest (G.C. 28.003) Type of Case AUTHORIZED AUTHORIZED A. civil matters within jurisdictional amount
B. forcible entry and detainer
C. foreclosure of mortgage and enforce lien on personal property A. action for recovery of money only Venue 15.082 to 15.097 (CP&RC)
A. generally county and precinct where one or more defendants reside
B. 14 exceptions
A. county and precinct where defendant lives
B. where the defendant has contracted to perform
CONTINUANCE for good cause shown and affidavit Rule 541 "only for good cause shown" (GC 28.032) DISCOVERY YES limited, with prior court approval (GC 28.033e) JURY TRIAL YES YES TRIALS & HEARINGS FORMAL - must follow RCP INFORMAL RULES OF EVIDENCE APPLY (ROE 101) does not apply (ROE 101) APPEAL YES if in excess of $20.00 - yes then just like justice court General Rule (CP & RC 15.082 County and precinct where one or more of the defendants resides Forcibles (15.084) County and precinct in which all or part of the property is located (no exceptions) Suit for Rent (15.091) County and precinct in which all or part of the property is located Suit for Tort (15.093) County and precinct in which the injury occurred Suit on a Contract (15.092) A. Suit on a written contract that promises performance may be brought in the precinct where the work was to be performed
B. Suit on an oral or written contract for labor actually performed
C. Suit on a contract for goods, services or loans for personal, family or household use may be brought where contract was signed or where defendant resides Suit to recover personal property (15.090) Precinct in which the property is located Suit against Corporation or Association (15.094) Precinct where:
A. All or part of the cause of action arose;
B. The corporation has an agency or representative; OR
C. The principal office is located
Insurance Companies (15.096) Precinct where:
A. All or part of the insured property is located in the case of a property claim;
B. the injured person resided when the injury or death occurred
For other specific venue provisions 15.081 to 18.100 CP & RC = Civil Practice and Remedy Code
- When you are sued and served with a citation from the Justice/Small Claims Court, you must file a written answer to the suit on or before the Monday, which follows the tenth day from the date of service. You must answer in writing and advise the Court if you wish to contest the suit and have a trial by judge or jury or if you wish the Plaintiff to recover a consent judgment.
- If you contest the suit and desire a jury trial, you must request it and pay a $10.00 jury fee.
- You may represent yourself or hire an attorney to represent you. (Check with the Clerk of the Court for exceptions to this rule.)
- If you do not desire to contest the suit, and you agree that the plaintiff recover the full amount he is seeking, you may request in writing the Court to enter a consent judgment against you.
- You should prepare a proper defense if you go to trial even though the burden is on the Plaintiff to prove his allegation against you.
- If witnesses are required and will not appear voluntarily, you may subpoena them to Court by asking for the subpoena and paying the required fee. The subpoena must be requested ten (10) days prior to the trial.
- After the Plaintiff presents his case at the trial as to his right to recover, you are then allowed to present your defense as to why he should not recover.
- You should remember that hearsay evidence is inadmissible and cannot be used if objected to by the Plaintiff. Examples of hearsay evidence are affidavits, garage estimates, police reports, and what other people, not in court, orally said or wrote.
- When the Plaintiff and you have both rested your case, the Court will enter a judgment - which the Plaintiff recovers from you, all, part or nothing.
- If a judgment is rendered against you, you may appeal the ruling of this Court to the County Court at Law within ten (10) days.
- Should the Court rule the Plaintiff recover nothing from you, the Plaintiff must appeal within ten (10) days, or his right to recover from you is forever lost.
- Should the Plaintiff recover a judgment from you and you do not appeal it, the Plaintiff may take further legal action against you to collect the amount of judgment plus court costs.
- The Plaintiff may ask that a Writ of Execution be issued to the Constable or the Sheriff to collect the judgment from you by levying on certain belongings that you own.
- The Plaintiff may obtain an Abstract of Judgment from the Court and file it with the County Clerk.
Justice Court/Small Claims Court Judgments
THIS COURT DOES NOT COLLECT THE JUDGMENT FOR YOU, OR FORCE THE DEFENDANT TO PAY THE JUDGMENT.
- ABSTRACT OF JUDGMENT: Puts a lien on any real property the defendant may own in a particular county where the abstract is recorded. The abstract is only good in the county or counties where it is recorded. This can be obtained after ten (10) days from the date the judgment is signed, good for ten (10) years.
- WRIT OF EXECUTION: May be obtained thirty (30) days after the judgment is signed. Authorizes the Sheriff or Constable to seize any assets belonging to the defendant that are subject to this writ. Those assets are then auctioned at a public sale and the proceeds are applied to the judgment. The Court suggests that you visit with the proper Sheriff or Constable before the execution is issued.
Specific assets must be identified. There are many exemptions. (See Chapter 42 of the Texas Property Code.)
- Other legal actions are available to find out what assets the defendant has and pursue them, but an attorney is usually used to get them accomplished correctly.
- CREDIT REPORTING: Send a certified copy of the judgment to any credit bureau where defendant may seek credit, with all information about defendant - name, address, social security number, drivers license number, date of birth, etc. They probably will not list the judgment without this information about the defendant. This remains on their record for seven (7) years. Call Credit Bureau for further information first.
Instructions and Information for Filing an Eviction
- An INDIVIDUAL OWNER can represent himself “pro se” at any time and in any aspect of the eviction process.
- Any NON-LAWYER AGENT of the owner can “file” any kind of eviction case by filling out the sworn complaint, signing it and filing it with the Justice of the Peace, Clerk of the Court - even if the agent is not the owner and NOT A LAWYER
- Any NON-LAWYER AGENT of the owner can obtain a “default judgment” in any kind of eviction case.
- Any NON-LAWYER AGENT of the owner can handle the trial of an eviction suit from beginning to end if the case is BASED ON NON-PAYMENT OF RENT OR HOLDING OVER.
- OTHERWISE, a property owner in an eviction case must be represented by a licensed attorney during the actual trial of the eviction case.
- Suit must be filed under the property owner’s name or as identified on the “Assumed Name Certificate.”
LANDLORD AND TENANT The law of landlord tenant is found in the Texas Property Code, and the procedure to evict persons from property is found in the Rules of Civil Procedure. The law is explained in to many cases to be printed in this booklet and this is only a general statement of the law.
If there is a lease, the terms of the lease control most of the duties of the parties to each other. You should read the lease to see what your rights and duties are. TERMINATION If there is no lease or some kind of rental contract between the parties, the landlord or tenant can terminate the lease without cause by giving notice to the other. The lease terminates at the later of the date stated in the notice or a time equal to the rental period from the notice. If there is a lease or rental contract, it can only be terminated for reasons stated in the lease, breach of the lease contract or other unreasonable conduct of one of the parties, nuisance, or non payment of rent by the renter or failure to repair, etc. by the landlord. There is no requirement that the landlord renew the lease beyond its term or and option period. In addition, the landlord may terminate a lease if the renter is convicted of public indecency.
NOTICE: The landlord must give the tenant at least three (3) days written notice before filing his suit to evict the tenant for breach of the lease. If the tenant is holding over and the termination is not for breach of the lease, the notice must be at least an amount of time equal to the rental period, i.e. monthly, weekly, etc. The notice period starts on the day the notice is delivered.
FILING SUIT: If the tenant refuses to move, the landlord may file suit in the Justice Court asking for an order that the Constable move the tenant out, for any rent due and for any other damages he has suffered, so long as the rent and damages in controversy is not over $10,000.00.
The tenant will be served with a citation, giving him notice of the suit, and when it is to be heard. If the tenant does not show up, the Court can enter a judgment for the landlord for all damages he can prove and remedies he request. If the landlord does not show up, the Court can dismiss the suit.
The case must be set for trial not less than six (6) , nor more than ten (10) days, from the date of service of the citation on the tenant. If the Constable is unable to serve the tenant personally, the court can give him permission to serve the tenant by leaving a copy of the citation at the leased premises or by mail. If either party wants a jury trial, it must be requested within five (5) days of service on the tenant, along with payment of the jury fee. The case can only be continued or put off, at the discretion of the Judge, for good cause, and then not more than six (6) days.
If the landlord wins, he can obtain an order for possession of the premises, court cost and attorney’s fees in addition to any unpaid rent or other statutory or actual damages. If the tenant wins, he can obtain judgment for court costs and attorney’s fee in addition to any other actual or statutory damages.
WRIT OF POSSESSION: If the landlord wins, the Court can issue a writ of possession at the expiration of five (5) days from the date the judgment is signed.
The Writ of Possession orders the Constable to take possession of the premises from the tenant and deliver the premises to the landlord. The officer must instruct the tenant and all other occupants on the premises to leave immediately or they will be physically removed by him. The tenant is to remove or allow the landlord to remove all of the tenant’s personal property from the rental unit. The property not removed by the tenant will be placed outside the premises, but not blocking a public street or sidewalk and not during rain, sleet or snow.
LANDLORD’S LIEN: The landlord has a lien on the property of the tenant for unpaid rent that is in the residence or storage on the premises, except for: wearing apparel, tools and books of a trade or profession, schoolbooks, family library, family pictures, couch, two living chairs, and a dining table and chairs, beds and bedding, kitchen furniture and utensils, food, medicine and medical supplies, one car and one truck, agricultural implements, children’s toys, goods known by the landlord to be owned by others or are subject to recorded liens.
PROPERTY MAY ONLY BE TAKEN IF AUTHORIZED BY A WRITTEN LEASE AND WITHOUT A BREACH OF THE PEACE. The landlord must leave a written notice of his entry and itemized list of things taken, the amount of delinquent rent, and that the property will be returned on payment of the rent. There are other provisions in the law for the sale of the property by the landlord, and recovery of the property by the tenant and these must be strictly followed.
CLOSING THE PREMISES A Landlord may close residential premises, and terminate the tenancy, by giving certified mail notice to the tenant; local health office and building inspector, and either demolish the premises or no longer use it for residential rental. If the landlord gives notice to repair and the landlord closes the premises, the landlord is liable to the tenant fore reasonable moving expenses and pro-rate rent. The closing of one unit does not prohibit the occupancy of other units in the same complex.
RETALIATION: If either party attempts to retaliate against the other for actions taken pursuant to the repair section, the law provides for specific damages and remedies against the offending party.
SECURITY DEPOSITS The landlord must ordinarily refund a security deposit or give the tenant an accounting of the security deposit, within thirty (30) days after the tenant surrenders the premises. A requirement that a tenant give advance notice of surrender of the premises as condition of refund of the security deposit is effective only if underlined or printed in conspicuous bold print in the lease.
The landlord may deduct damages and other charges for which the tenant is legally liable, except for ordinary wear and tear. The landlord must give the tenant an itemized list of all deductions from the security deposit, along with the balance of the security deposit, if any, unless the tenant owes rent when he surrenders possession of the premises, and there is no controversy about the amount of rent owed.
If the tenant does not give the landlord a written statement of his forwarding address for the refund, the landlord is not required to make a refund or furnish an itemized list of deductions until he knows where to send the refund.
If the premises are sold, the previous owner is liable for all security deposits, until the new owner delivers a written notice to the tenants that the new owner is liable. The new owner is also liable from the time the deal is completed and title is passed. This section does not apply to lien holders who acquire ownership by foreclosure.
WITHHOLD RENT FOR SECURITY DEPOSIT: Tenant may not withhold rent on grounds that the security deposit covers the last month’s rent. A tenant, who does so, is liable to the landlord for damages, and attorney’s fees.
LANDLORD’S FAILURE TO REFUND SECURITY DEPOSIT: A landlord who fails in bad faith, to refund a security deposit or provide an itemized list of deductions, is liable to the tenant for additional damages and attorney’s fees. LOCK OUT AND SHUTTING UTILITIES OFF Landlord’s cannot shut off utilities if they are paid directly by the tenant to the utility company, and cannot prevent entry into the premises by the tenant, except for bona fide repairs, or emergency.
Landlord’s can change locks if the tenant is delinquent in paying rent, but the landlord must leave a written notice on the front door of the premises, with the name and address of person who has a key, and must provide the key to a residential tenant at any hour, regardless of whether rent is paid or not. The landlord must only provide a key to a commercial tenant during regular business hours. The lockout is for the purpose of requiring the delinquent tenant to confront the landlord. ABANDONMENT OF COMMERCIAL PREMISES A commercial tenant is presumed to have abandoned the premises, if enough personal property is or has been removed to indicate that the tenant is abandoning the premises. The landlord may remove and store any left over equipment after abandonment by a commercial tenant. REPAIR OF CLOSING THE PREMISES A landlord must make a diligent effort to repair if the tenant reports the needed repairs to the landlord, the tenant is not delinquent in paying rent, and the condition materially affects the physical health or safety of an ordinary tenant. The landlord does not have any duty to repair a condition cause by the tenant, except for ordinary wear and tear.
If the condition results from an insured casualty loss, such as fire, smoke, hail, explosion or similar causes, the period for repair does not begin until the landlord receives the insurance proceeds.
If the premises are wholly unsuitable for residential purposes, and the condition is not caused by the tenant, the tenant or landlord may terminate the lease by giving written notice to the other at any time before the repairs are completed. If the premises are partially unsuitable for occupancy, the tenant is entitled to a pro-rata reducing the rent, but only on judgment by the district court. The parties in a written lease may modify this section. TO THOSE FILING FORCIBLE ENTRY AND DETAINER SUITS:
- Forcible Entry and Detainer Suits and Writs of Possession may be filed between the hours of 9:00 a.m. and 4:00 p.m., Monday through Friday.
- FILLING OUT YOUR PETITION:
• Must be typed or printed neatly in ink.
• Be sure to use only one tenant's name and all occupants.
• The attached petition covers all causes of action except that of Forcible Entry.
• State tenant's full address, including apartment number (if applicable).
WHAT MUST BE FILED:
- One (1) original and two (2) copies of petition. (Court will not make copies)
- One (1) original and two (2) copies of notice to vacate.(Must be in proper form, and properly served, and the necessary time must have elapsed.) ( If constable served notice to vacate the court will have original.)
- Plaintiff must furnish the Court two (2) copies of the contract signed by tenant.
- Fees for filing are payable when the petition is filed. (See fee Schedule)
- ALWAYS keep track of your case numbers so that you can refer to them when calling our office or purchasing writs of possession. (Case number is recorded on your receipt.)
- Evictions may be dismissed only in open court or by letter. We encourage you as management to do this when a disposition of this nature has occurred to avoid the Constable attempting service to those where service is not necessary.
- You should be familiar with the new Texas Supreme Court ruling regarding representation and service in forcible entry and detainer cases. (Texas Rules Civil Procedure, Rules 742a, 747a, and 749c) as well as the new Texas Property Code. A non-attorney agent may represent the plaintiff in causes of action for non-payment of rent or holding over.
- As a plaintiff, you will be notified by this office as to the time and date of the trial setting. Be sure to give us your daytime telephone number.
- If you have any questions, involved in filing your case, please call our Civil Clerk at 936/634-8334. THIS COURT MAY NOT ANSWER ANY LEGAL QUESTIONS.
- You may obtain a petition to file an Eviction by downloading the Eviction Form from our web site http://www.angelinacounty.net, by contacting our office located at 2311 East Lufkin Ave. in Lufkin, Texas or written request by mail at P. O. Box 43, Lufkin, Texas 75902. You must enclose a self-addressed stamped envelope.