Step 1 You should give notice to the
Defendant.
Step 2 Determine in which Justice of the Peace
Precinct it is appropriate to file your claim.
Step 3 Obtain a Petition from the appropriate
Precinct
Step 4 Fill out the Petition
Step 5 File the Petition
Step 6 Defendant is served
Step 7 Defendant must file a written answer.
Step 8 Hearing is set by the Court
Step 9 Request Subpoena of witnesses
Step 10 Hearing
Step 11 Judgment
In most cases, the courts recommend first sending
the opposing party a letter by certified mail, giving
them notice that if they fail to pay damages within
30 days, legal action will be initiated. (See sample
letter)
Step 2 Determine in which Justice of the Peace
Precinct it is appropriate to file your claim.
There are eight precincts in Harris County.
You
need to file in the appropriate courthouse for the
precinct where the defendant lives or in the precinct
where the controversy occurred. If you’re not
sure what precinct is appropriate, call the precinct
nearest you and ask. (See Precinct List)
Step 3 Obtain a Petition from the appropriate
Precinct.
Pick up the one-page small claims petition at the
appropriate Precinct, or call them and ask them to
mail you one. A helpful information packet is also
available at some courts. (See Precinct information
page)
Step 4 Fill out the Petition
The one-page small claims petition is easy to fill
out. Be sure to fill it out completely before you
file it with the courthouse. The following
information must be in the petition.
Plaintiff: The legal name of the person or entity
bringing the suit.
It is important that you provide the court with
your day-time phone number and/or address. You must
also notify them of any changes in your phone number
or address.
Defendant: The legal name of the person or entity
you are suing.
It is your burden as a plaintiff and it is
important that you understand that for any potential
judgment you may preceive to be valid, it is
necessary for you to sue the defendant in his or her
proper legal capacity, of which there are typically
three. Should you file against the wrong entity, you
will have to begin again and possibly have to pay
trial expenses caused by filing against the wrong
party. (See Legal Capacity page)
Name of individual serving: This is always
a
person’s name. If you are suing a corporation or
other entity you must obtain the name of the agent
for service. (See Legal Capacity page for information
on how to locate an agent)
Damages: This is the amount you are suing for.
This must be a dollar amount, and it cannot exceed
$5,000.00. This is the relief you are asking the
court to grant you, so it must be in the petition.
Cause of Action: The act causing debt or damage.
When filling out the petition, you must give a full
description of the cause of action. The Defendant
must be totally aware of why he is being sued. Be
comprehensive enough with the allegations so that a
third party having no knowledge of the suit could
read the petition and understand your claim for
damages. State the nature of the claim in a concise
form without technicality, including important dates.
Signature: You must sign your name. If you file
the petition in person, there is no need to notarize
your signature. However, if you decide to mail in
your petition, you must have you signature notarized.
Proof: You may attach copies of invoices, receipts
or documents you intend to bring to the court.
However, it is advisable that you keep personal
copies of everything you turn over to the court.
NOTE: Before turning the petition in to the clerk,
be certain that the petition is complete.
Step 5 File the Petition
File the petition in the appropriate precinct and
pay the $10 service fee. An additional $45 fee is
required to reach each defendant named in the lawsuit
who needs to be served with a petition by the court.
You must pay with in cash or money order. No personal
checks are accepted. (See Fee Schedule)
Step 6 Defendant is served
When you have completed and filed the petition, a
citation along with a copy of your petition will be
served to the defendant notifying him that a suit has
been filed against him in J. P. court.
Citation: The citation is an order signed by the
judge. It orders the defendant to appear in court to
file a written answer to the lawsuit on or before the
Monday following the expiration of ten days from his
receipt of the citation at 10:00 a.m.
Step 7 Defendant must file a written answer.
After the defendant is served, the defendant must
file a written answer either denying any civil
liability or acknowledging the debt. If he does not
contest the petition, the defendant can make a
separate agreement with the plaintiff that the judge
will sign either before or at the hearing. If the
defendant does not answer, the court will more than
likely render judgment in your favor.
Step 8 Hearing is set by the Court
The earliest date on which a trial can be set is
the 1st Monday following the expiration of 45 days.
The court usually sets it within three to six months
after the defendant is served whith the citation.
Step 9 Request Subpoena of witnesses
If you have witnesses to your law suit who will
not come to the court voluntarily, you may ask the
court to subpoena those individuals prior to trial.
Allow at least a week for service of the subpoena.
Subpeona: An order signed by the judge, ordering a
person to appear in court as a witness or to bring
documents. However, the order is limited to a
200-mile radius.
Notarized statements from individuals are of very
little value. Personal appearances and testimony are
much more beneficial. Any expert witnesses whose
testimony you are going to need, should be in court.
Step 10 Hearing
As a plaintiff, you have the burden of proof to
show by the preponderance of the evidence. This means
that you must demonstrate to the court that more
likely than not, the defendant you are suing is the
proximate cause of your damages in the legal capacity
in which defendant is sued. All damages and evidence
necessary to meet your burden should all be available
at the time of filing and not later than the date of
trial.
A judgment is nearly always made the same day of
the hearing. If the defendant does not answer, the
court will more than likely render judgment in your
favor.
Step 11 Judgment
Once you have a judgment, the court does not
collect the money for you, nor can the court force an
indigent to pay the judgment. If you receive a
judgment against the defendant, the court can issue
various instruments to assist you in collecting the
judgment. You may request an Abstract of Judgment,
Writ of Execution, Writ of Garnishment and Turnover
Order. (See Fee Schedule)
1. Do I need an attorney to represent me in small
claims court?
Answer:
This type of suit does not warrant hiring an
attorney; however, you are free to do so if you wish,
as is the defendant. As the amount of the lawsuit
increases, so does the need for having an attorney.
2. What is a Petition?
Answer:
On the petition, you name the party or parties you
are suing, the amount of the damages you are seeking
and give an explanation of the lawsuit. It is
recommended to attach copies of invoices or documents
you intend to bring to the court so the defendant has
an idea of the basis of the lawsuit, especially when
you are suing a business.
In addition to making you swear in the petition
that your claims are true, some courts will require
you to sign a sworn acknowledgment that you
understand the rules and process.
3. What happens if I file in the wrong precinct?
Answer:
If you file in the wrong precinct, there is the
possibility the defendant will challenge the location
of the court hearing. If the case is transferred, you
are responsible for the $10.00 transfer fee.
4. Do I have to notarize the Petition?
Answer:
If you file the petition in person, there is no need
to notarize it. If you mail your petition, then it
must be notarized.
5. Whose responsibility is it to serve the Defendant?
Answer:
It is the court’s responsibility. However, in
your petition you must give the address where the
defendant can be found. The more accurate the
information in your petition, the more likely that
the court will be serve the defendant.
6. How important is it for the Defendant to be served?
Answer:
It is essential. The defendant must have notice of
the lawsuit and be given an opportunity to defend
himself.
7. What should I do if I am not contacted regarding my
court date?
Answer:
You should wait about six weeks. If you have not
heard anything within six weeks, call the precinct
and check on the status of your case.
8. How long will it take to get a judgment?
Answer:
A judgment is nearly always made the same day of the
hearing.
Bad Guy
Defendant
1254 Hickory Drive
Houston, Texas 77056
Re: Damage to my property at 1113 Main
Street by Bad Guy Defendant on 1/1/96.
Dear Mr. Defendant:
On January 1 1996 I hired you to cut a
maple tree in my front yard while I was
away for the weekend. Upon my return, I
learned you had cut the wrong tree. The
tree that was cut, was a pecan tree that
was planted by my great-grandfather many
years ago. As a result, I had to hire
another company to cut the right tree and
plant a new one. Enclosed is a copy of
the receipt for the expenses I incurred
to correct your mistake. I am requesting
reimbursement in the amount of $123.65.
Contact me if you have any questions.
If I do not hear from you within 30 days
from receipt of this letter, I will file
a petition with the Justice of the Peace
Small Claims court in Harris County.
I look forward to working with you toward
a resolution of this matter.
The following are documents you may file after you
have obtained a judgment from the court. These documents
are designed to help you collect the money awarded to you
in you judgment.
Abstract:
An abstract puts a lien on any
real property the defendant may own in a
particular county where the Abstract is recorded.
This can be obtained ten days after the judgment
has been signed.
Writ of Execution:
The Writ of Execution my be
obtained thirty days after the judgment has been
signed. This document 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
those proceeds are applied to the judgment.
Writ of Garnishment:
The Writ of Garnishment is also
available thirty days after the final judgment
has been signed. This Garnishment proceeding is a
separate suit where you are the plaintiff and
defendant's bank and/or a third party holdings
assets of judgment debts becomes the defendant.
You are actually suing the bank and\or assets.
You are ordering the bank or third party to
freeze the monetary assets or non-exempt property
and to appear and make answer to the Garnishment
suit. An attorney is recommended for this.
Turnover Order:
A Turnover order is available
before and or after the judgment is signed and
its purpose is to provide a court-ordered means
of reaching property which cannot easily be
reached through ordinary legal process and which
is not exempt from attachment, execution, etc. An
attorney should be used because the courts
clerical staff will not be able, by law, to
assist you in drafting the documents that are
necessary. This post judgment collection remedy
is the most effective way of collecting judgment
in most cases.
Personally:
Where an individual is responsible to you for
damage he may have caused you as an individual.
B.
Proprietor or
Partnership: A business that is not
incorporated, but does have on file with the
County Clerk as assumed name, e.g. John Smith dba
Greenhouse Supplies.
* Records of assumed names certificates are
kept in the Harris County Administration Building
on the Fourth Floor. The address is as follows:
Harris County Administration Building
1001 Preston
Houston, Texas 77002
C.
Corporation:
The business which has allegedly caused you
damage is incorporated and therefore, it is
necessary to know the individual’s name who
is able to accept service on behalf of the
corporation.
*To obtain this information you must call the
Secretary of State whose phone number is
1-800-252-1386, ask for the Corporate Charter
Division. Also for updated information, you may
call the Secretary of State, The
Comptroller’s Office, whose number is
512-463-5555.
NOTE: As a
plaintiff, you also must sue in the legal
capacity in which you were damaged.
Jim L. Culpepper & Associates,
A Professional Corporation
Attorneys at Law
9821 Katy Freeway, Suite 110
Houston, Texas, 77024
(713) 463-6300; Fax (713) 463-6301thefirm@culpepperlaw.com
Copyright 1998 - 2003,
Jim L. Culpepper & Associates, P.C.