How to File a Claim in Small Claims Court
Table of Contents
Do You Have A Claim That Qualifies
For Small Claims Court?
Procedure For Filing A Small
Claim In The Justice Of The Peace Court
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
Frequently Asked Questions
Sample Letter
Precinct List
Fee Schedule for Small Claims
Definitions
Three Different Types of Legal Capacity
DO YOU HAVE A CLAIM
THAT QUALIFIES FOR SMALL CLAIMS COURT?
Answer the following questions to determine if your claim
qualifies for small claims court.
- Are you suing for anything
other than money? For
example,
are your suing for an injunction?
- Including interest, is the amount
of money you
are suing for in excess of $5,000.00?
- Are you in the business of loaning money for profit,
such as a bank, credit union or savings and loan?
If you answered "Yes" to any
of these questions, you are ineligible to file in Small Claims
court.
If you answered "No" to all of the questions, the
following information may be helpful in filing your claim in
the Justice of the Peace court.
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PROCEDURE FOR FILING A SMALL
CLAIM IN THE JUSTICE OF THE PEACE COURT
Step
1 You should give notice to the Defendant.
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
perceive 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)
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FREQUENTLY
ASKED QUESTIONS
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.
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SAMPLE LETTER
[Date][Your Name]
1111 Main Street
Houston, Texas 77050
CMRRR No. ______________
Bad Guy Defendant
1534 Hollow Drive
Houston, Texas 77006
Re: Damage to my property at 1111 Main Street by
Bad Guy Defendant on 3/11/99.
Dear Mr. Defendant:
On March 2, 1999, I hired you to cut a
put a roof on my house while I was
away for the
weekend.
Upon
my
return, I learned you had left the
roof uncovered in a rainstorm, causing damage
to my home. Enclosed is a copy
of the receipt for the expenses I incurred
to correct
your
mistake. I am requesting reimbursement
in the amount of $4,123.00. 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.
[You may wish to include reference to the Texas Deceptive
Trade Practices Act, Section 17.46 et seq., and
give the bad buy
60 days to settle.
Thereafter, you can sue him for 3x the amount of
damages under that law.]
Very truly,
[Your Name]
Enclosure
If you do not get the matter resolved by letter, then below
are the locations and phone numbers where suit may be filed.
Try to sue the defendant in the
precinct where its company is located, or where the individual lives.
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PRECINCT
LIST
(The Judges’ names are not listed as they can change
from election to election.)
PRECINCT 1
Position 1
OR
Position 2
7300 N. Shepherd
Houston, Texas 77091
713-697-1224
301 San Jacinto
Houston, Texas 77002
713-755-5125
PRECINCT 2
Position 1
OR
Position 2
10851 Scarsdale Blvd., Suite 500
Houston, Texas 77089
713-481-9630
107 E. Shaw
Pasadena, Texas 77506
713-920-1828
PRECINCT 3
Position 1
OR
Position 2
14350 Wallisville Rd.
Houston, Texas 77049
713-450-2409701
W. Baker Rd.
Baytown, Texas 77521
713-427-7449
PRECINCT 4
Position 1
OR
Position 2
6831 Cypresswood
Spring, Texas 77379
713-376-5512
121 W. Main
Humble, Texas 77338
713-446-7191
PRECINCT 5
Position 1
OR
Position 2
6000 Chimney Rock
Houston, Texas 77081
713-661-2276
16715 Clay Road
Houston, Texas 77084
713-463-2341
PRECINCT 6
Position 1
OR
Position 2
333 Lockwood
Houston, Texas 77011
713-921-1576
1001 Sgt Macario Garcia Dr.
Houston, Texas 77011
713-921-6141
PRECINCT 7
Position 1
OR
Position 2
1646 Old Spanish Trial
Houston, Texas 77054
713-796-9696
5737 Cullen
Houston, Texas 77021
713-741-0273
PRECINCT 8
Position 1
OR
Position 2
7330 Spencer Hwy
Pasadena, Texas
713-479-6900
16603 Buccaneer
Houston, Texas 77062
713-488-8780
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FEE SCHEDULE FOR SMALL CLAIMS COURT
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DEFINITIONS
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.
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THREE DIFFERENT TYPES OF LEGAL CAPACITY AGAINST
A DEFENDENT
A. 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. You may also
find this information online for $1.00 per search at: http://www.sos.state.tx.us/corp/sosda/index.shtml
NOTE: As a plaintiff, you also must sue in the legal capacity
in which you were damaged. If your company was harmed and
it was a
corporation, it must
sue in its name, not yours.
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