10 Steps to Filing a Small Claim in Texas

Scenario One: Kathy was in her car, sitting at a stoplight when she was rear-ended by a rusted-out Sentra, circa 1985. Sally, the driver of the other car, admitted to Kathy that she didn't have any insurance on the vehicle because she and her family were "plum broke." Sally assured Kathy she would make monthly payments to cover the amount of the damages, whatever those were. Kathy reticently agreed. After collecting Sally's contact information, Kathy had her car towed to an auto shop, where $2000 worth of dings were hammered out. Kathy attempted to contact Sally by phone and then by mail. Sally never responded.

Scenario Two: Carl signed a $7000 contract with his old college buddy, Joe Bob, to create a dazzling website for Joe Bob's start-up business. Joe Bob assured Carl that he would pay for any software upgrades required to complete the project. After the website was done, Carl requested payment, but Joe Bob shrugged and told Carl that there was no money in the till to pay him. Joe Bob owned three successful rental properties, and aside from that, he'd just taken his entire family on an expensive trip to Europe. Carl wasn't buying it.

Both Kathy and Carl could file a small claim against the people who promised them reimbursement, as long as that claim was no more than $10,000. But should they? First, let's review Chapter 28 of the Texas Government Code (Small Claims) and get started!

1. Pick your battles

The questions to ask yourself before filing a small claim are as follows: Is the person I'm bringing suit against financially solvent? Do I have enough persuasive evidence to win? Is the amount in question worth all the time and effort I'm putting into this? Kathy probably knows that Sally doesn't have many assets -- she can't even afford liability insurance, she has already told Kathy that she's "plum broke," and look at that clunker she was driving! Even if Kathy does get a judgment against Sally, what is the likelihood that Sally can pay it? Carl is sitting pretty; he knows that Joe Bob has assets. A judgment in his favor would be far easier to collect. (Remember: If you lose your claim, you can only appeal if the amount in question is $250 or more. If not, game over. If you wish to file a small claim that's really small, ask yourself if it's worth your time and effort.)

If you've decided to proceed, do the math. In Carl's case, he can include the amount of his services, plus the amount Joe Bob promised to pay him for upgrading the computer program. If Sally decides to file, she might include the expense incurred for the rental car she used while her car was in the shop. Take thorough inventory and see just how much you are out of pocket. (Some attorneys will advise you to claim the entire $10,000 if you anticipate using legal counsel.)

2. Try to work it out

Consider alternative methods of hammering it all out. For example, landlord-tenant associations mediate between lessors and lessees. If the matter involves a business, attempt to engage the Better Business Bureau. A growing area of law is mediation, which keeps the parties out of the courtroom entirely. Check your city listings to see if there is a mediation center in your area. Then if this fails ...

3. Who, What, When, Where: Just the facts, ma'am (or sir)!

Gather the pertinent information you need to file your small claim. You will need the name and address of your defendant (who) and their mailing address. It goes without saying that you must file suit against the correct person or entity. Say your property manager, Ted, promised that you'd receive your deposit back, per instruction of the apartment owners, after you vacated, but the apartment owners never followed through. The key word here is agent. The property owner is the subject of your suit -- not Ted.

Consider the nature of your claim (what) and if it falls under the purview of the small claims court. A small claims court probably won't consider a claim you make against the volatile neighbor who beats you into Silly Putty because you accidentally stepped on the petunias that border your joint property -- this is assault (a criminal charge), and you would first report that to the police.

Dates (when) are important for one very big reason: Statute of limitations. In Texas, you have up to two years to file a small claim; however, it is advised that you put the pedal to the metal and get your suit filed within the first year. This allows you to go into court with a fresh memory of everything that transpired.

Know your jurisdiction (where). With few exceptions, this will be the county where you reside. However, say you contracted to do work in a neighboring county. You have the option of selecting your venue -- the county in which the contracted work took place; or the county in which you reside.

4. Gather your "evidence"

This includes copies of contracts, records, correspondence, and photographs that you will submit to the court when you file your claim. Make two "evidence" files, one for yourself, and one for the court's use. Kathy might include several pictures of the damages to her car, copies of the receipt from her mechanic, and the receipt from the rental car company. Make it look nice! A legal binder with tabs that identify each piece of documentation makes it easier for a judge to locate specific documents.

5. File a sworn statement

To file your claim, you must fill out a statement and submit it in person, along with your "evidence" file, and a small filing fee, at the clerk's office. In large cities, there will be a number of clerks' offices, so you might have to phone around to make sure you find the one that serves your area. In smaller towns, small claims might be filed with the justice of the peace.

Many small claims courts will mail you a statement form so that you can prepare it in advance. This is helpful because it permits you to write down your grievance when you are in an objective frame of mind. The court wants to hear a concise argument as to why you are filing the claim, so your statement isn't the place to write, "... and that donkey's behind of a property manager LIED through his nicotine-stained teeth when he told me he'd give me back my deposit!"

After your sworn statement is filed, the subject of your claim will be served with a notice, either in person sheriff or constable, or sometimes through certified mail, within 90 days. It's a good idea to keep in contact with the court clerk and see if your prospective defendant has been served, and to find out how your court date will be set, as procedure varies from county to county.

6. Summon your witnesses

If you have one or more people to corroborate what transpired between you and the defendant, ask them if they would be willing to appear in court on your behalf. Make sure your witnesses are relevant and actually witnesses to what transpired. Say Kathy had a passenger in her car at the time of her accident. The passenger might be able to confirm what transpired between Kathy and Sally to prove an oral agreement between them.

7. Your day in court

Dress appropriately for the occasion -- suit and tie for men, dresses or a skirt and a blouse for the ladies. Courtrooms aren't paintball courts, so definitely no jeans or shorts! Following protocol is important when establishing rapport with the judge. Courtesy goes a long way -- stand when the judge enters, and always remember to say, "Yes ma'am," "No sir," "Thank you," and "Please." It goes without saying that decorum should be maintained at all times. The sight of a defendant who bilked you out of all that money probably wants to make you spit nails, but the courtroom is not the place to show it. Present your case in a neutral tone and use objective language. Thank you!

8. Woo-hoo! I won!

Good job! But don't collect your chickens before they've hatched. First thing to ascertain is if the defendant will appeal the judgment. If he or she does, the trial is heard by the county court, and it is heard de novo ("new"). This means that you get to show up in court again dressed in your Sunday finest and present your case ... all over again. And because county cases are more elaborate, you'll probably want the assistance of an attorney. Alternately, say you received a default judgment in your favor because your lazy scoundrel of a defendant just didn't show up for trial. The defendant still has 10 days in which to file a written motion asking that the judgment be set aside.

9. Show me the money

In a perfect world, after you win your small claim, every defendant would have a come-to-Jesus moment and write you a check on the spot. But the recalcitrant defendant might storm out of the courtroom snarling, "I don't care what that Jello-for-brains judge thinks, I'm not giving you one copper penny!" A court can only render a decision; it cannot force a defendant to pay a judgment. So now what?

Get an abstract of judgment from the court (again, for a small fee). The abstract is used to impose a lien against any non-exempt property the defendant owns in the county. Alternately, a writ of garnishment can be taken directly to the bank where the defendant has an account. Finally, there's a writ of execution, which mandates the sale of the defendant's non-exempt property to pay the judgment. That is, if you can even find all of the defendant's property that's not subject to exemption!

10. Ask for help

Here's where it gets tricky. Texas is a "debtor's state," and provides many exemptions for parties who have outstanding judgments against them. Laws that provide for collection of a judgment are difficult to navigate, and if you haven't done so already, now might be the time to hire an attorney to help collect your judgment.