The information contained herein is FOR YOUR INFORMATION and is offered as a guide to all interested parties. As always, we recommend that you consult an attorney. THIS INFORMATION IS FOR PROCEDURE ONLY. IT IS NOT INTENDED FOR LEGAL ADVICE OR TO TAKE THE PLACE OF AN ATTORNEY. THIS OFFICE CANNOT GIVE LEGAL ADVICE.
Small Claims Court is a court in which parties can settle disputes in which a money judgment is sought. The Plaintiff, by attorney or authorized agent may appear in person to file a claim, or may file a sworn statement of the claim by mail.
Suit should be filed in the county and precinct where one or more Defendant(s) reside. If the suit is based on a contract or tort, the Defendant may also be sued in the county where the contract was entered into or to be performed, or where the tort occurred. If suit is filed in this court and the Defendant files a Motion to Transfer Venue (a request that the suit be transferred to another county or precinct), the Plaintiff will be liable for any additional filing fee if the suit is transferred.
Jurisdiction (an issue over which Court has authority) in Small Claims Court suits is for the recovery of money damages, civil penalties, personal property, or other relief allowed by law, where the amount in controversy does not exceed $10,000.00. This includes attorney fees and pre-judgment interest. Court costs may be added to that amount.
The responsibility for completing the petition rests with the Plaintiff. PLEADINGS MUST BE FILED IN DUPLICATE. The Court Clerks will assist with procedural questions. The Plaintiff should understand that for a potential judgment to be valid, it is necessary to sue the Defendant in their legal capacity. They are as follows:
1. INDIVIDUAL - a party personally responsible for damages.
2. SOLE PROPRIETOR OR PARTNERSHIP - a business that is not incorporated but has filed an assumed name certificate with the County Clerk in the county of business that lists the owner(s). The County Clerk's office for Burnet County is located at 220 S. PIerce, Burnet, Texas. For more information, see the County Clerk's Web site.
3. CORPORATION - a business that is incorporated. To sue a corporation, the Plaintiff must find the name of the REGISTERED AGENT, PRESIDENT OR VICE PRESIDENT of the corporation before filing the suit. The Secretary of State has that information. Phone: (512) 463-5555
The Plaintiff will also need the ADDRESS of the REGISTERED AGENT, PRESIDENT OR VICE PRESIDENT for service of citation. When the suit is filed, the Plaintiff will be filing against the corporation and serving the citation on one of the above mentioned officers of the corporation. It is also possible for an incorporated entity to have an assumed name, e.g. John's Auto Shop, Inc. dba John's Garage.
COSTS IN BURNET COUNTY:
The filing fee is $54.00. A counterclaim filing fee is $54.00. Certified Mail Fee of $11.00. In addition, there is a fee for serving the Defendant, which is $80.00 per Defendant if served in Burnet County. If the Defendant is to be served outside of Burnet County, Texas,
1. Call the county courthouse in the county where the Defendant is to be served.
2. Ask for the name of the Constable or Sheriff in the precinct where the Defendant is to be served; then call that office and find out the service fee for serving a Small Claims Court Citation.
3. Get the address of the Constable or Sheriff who will be serving the citation.
Unless the Court is informed by the Plaintiff of the election of another entity for service, the Court will forward the citation to the Constable. Citations that will be served in a county other than Burnet will be returned to Plaintiff, Plaintiff's agent or attorney to forward to the appropriate agency for service.
The Defendant(s) in the suit must file a written answer with the Court by the Monday following the expiration of ten days from the date the citation was served upon the Defendant(s).
Small Claims Court was designed for individuals to be able to file suits without the assistance of an attorney, however, either party may be represented by an attorney if they choose to do so. The Rules of Evidence are not in effect in Small Claims Court and The Rules of Procedure apply only in certain situations.
PREPARING YOUR CASE FOR TRIAL:
The Plaintiff has the burden of proof and must meet that burden by showing through evidence that the Defendant is at fault. The Plaintiff should bring to trial all proof of damages and evidence necessary to substantiate the claim. It is the Plaintiff's or Defendant's responsibility to furnish copies of information to the Court and all parties involved.
If the Defendant in the suit fails to answer to the Court, the Plaintiff needs to appear on the Default Judgment Docket. THE PLAINTIFF STILL MUST PROVE THE CASE TO THE JUDGE. Briefly state the facts of the case and present any written evidence to support your case.
TRIAL BY JUDGE OR JURY:
If the Defendant in the suit files an answer, the Court will set a trial date. A notice will be mailed to both the Plaintiff and Defendant stating the time and date to appear in Court. A jury trial must be requested in writing and a fee of $22.00 paid. IT IS NECESSARY FOR BOTH PARTIES TO BRING ALL WITNESSES AND ANY EVIDENCE TO SUPPORT THE CASE TO THE COURT AT THIS TIME.
After judgment is entered, the losing party has ten days to appeal the case to the County Court at Law in Burnet County. Should the Court rule the Plaintiff recover nothing or should the Plaintiff receive a judgment for less than requested, the Plaintiff may appeal the case to the County Court within ten days. If an appeal is not filed within ten days from the date the judgment is signed, or if a Motion to Set Aside a Default Judgment or a Motion For New Trial is not filed within 5 days from the date the judgment is signed, the judgment becomes final.
THIS COURT DOES NOT COLLECT THE JUDGMENT FOR YOU:
Some remedies to collect a judgment are as follows:
1. ABSTRACT OF JUDGMENT
The winning party may obtain an Abstract of Judgment after the judgment is final. The fee for obtaining an Abstract of Judgment is $5.00. The Abstract will be mailed to the party requesting it. The Abstract of Judgment may be filed with the County Clerk's office in any county the losing party may have real property. After the Abstract of Judgment is filed with the County Clerk, if the losing party sells any real property within 10 years from the date of judgment, the amount of the judgment should be paid. The County Clerk may charge an additional fee for filing the Abstract of Judgment.
2. WRIT OF EXECUTION:
A Writ of Execution may be obtained any time after 30 days from the date of judgment. A Writ of Execution allows a Constable or Sheriff to seize non-exempt property from the losing party. If property is seized, an auction is held and the proceeds from the sale are credited toward your judgment. The cost for obtaining a Writ of Execution in Burnet County is $200.00. There may be other remedies available, which are not covered here. PLEASE CONSULT AN ATTORNEY FOR ANY OTHER REMEDIES TO COLLECT A JUDGMENT. SHOULD THE LOSING PARTY PAY THE AMOUNT OWED IT IS NECESSARY TO NOTIFY THE COURT IN WRITING. ADDRESS CHANGES SHOULD BE REPORTED TO THE COURT.
The Defendant in a Small Claims Court suit should be served personally by the Constable or Sheriff of the county. Sometimes, service is avoided by the Defendant and an alternate method of service is necessary. The Constable, Sheriff or process serving entity may file an affidavit with the Court stating that service has not been obtained upon the Defendant for various reasons. The Plaintiff may make a motion to the Court that the Defendant be served by alternate service after the Court receives the officer's affidavit. The alternate service may be as provided by statute. The Plaintiff will be notified to come to the Court to sign the motion for alternate service. If this is approved, the Judge will sign the order and the citation is returned to the process serving entity.
APPLICABLE STATUTES GOVERNING SMALL CLAIMS COURT INCLUDE BUT ARE NOT LIMITED TO THE GOVERNMENT CODE, CHAPTER 28, RULES OF COURT, CIVIL PRACTICES AND REMEDIES CODE.