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Civil Litigation in Texas: The Pretrial Phase

Court How-Tos (Civil Procedure)

This article explains the work that happens before a trial in a Texas civil case.

A lot of work must occur before you take a civil case to trial in Texas. You must (1) research your claim (2) file the lawsuit, and (3) notify the other party, who will respond. These steps can be time-consuming, but essential to a successful case. 

First: Researching Your Claim

Preparing a legal claim includes learning whether or not you have a viable claim that can be heard by a judge, what laws apply to the facts of your case, what facts are relevant to your claim, and what type of remedy you can ask for in court.

For the specific steps to follow to prepare a legal claim, see TexasLawHelp's Legal Research Guide.

Can you settle the case out of court?

As part of your research, investigate Alternative Dispute Resolution Even experienced attorneys regularly settle their cases outside of court using ADR. This might be the best option for you too. It could save you time, money, and even unnecessary damage to your personal relationships. Read Ending a Case Before Trial.

Learn more in this video:Alternative Dispute Resolution (Are there Other Ways to Work Out the Problem?).

Are There Other Ways to Work Out the Problem? (TexasCourtHelp)

Second: Filing the Lawsuit

Use your research to tell you what specific information you are required to include in your petition. A petition is a document you write that asks the court to give you a certain outcome To file, take 3 copies of your petition to the Clerk of the Court. The clerk will stamp them to show that you are officially asking the court for the things listed in your petition. Which courts do which things is explained in this chart.

When you give your petition to the clerk, you should be ready to pay a filing fee. Filing fees are often $200 or more. If you cannot afford to pay the filing fee, you may file a statement of inability to afford costs to ask the court to waive the fee for you. This form may also be called a Pauper’s Oath or Statement of Inability to Afford Payment of Court Costs. Read Court Fees and Court Costs.

Keep in mind: The court will not contact you with a court date or decision. Instead, you must complete the next steps until you have a court order signed by a judge.

Learn more about where to file in this video: Where do I File My Lawsuit?

Where Do I File My Lawsuit? (TexasCourtHelp)

Third: Giving the Other Side Notice

After you file your petition with the court, you are required to tell the person, people, or businesses that could be affected by your case that you have filed. This is called giving legal notice. 

Your research should tell you who the law requires you to notify in your specific type of case. If you are unsure of who needs to be notified, you should research the notice requirements of your type of case more specifically.

The person who files the Petition is called the Petitioner or Plaintiff. See Texas Rule of Civil Procedure 22. The other side is usually called the Respondent in a civil case, but may be referred to as the Defendant. See Texas Rule of Civil Procedure 99.)  

To give legal notice, ask the court clerk to issue citation, and arrange for a process server to give the citation to the person (or business) you’re suing.  You may not serve the respondent yourself

The only way to avoid formally serving the Respondent is if your case is uncontested and the respondent shows their agreement by signing and filing a Waiver of Citation. Learn more by watching this video: What is Service of Citation?

What is Service of Citation? (TexasCourtHelp)

After Notice, the Response

 If the respondent receives notice of the case but thinks that they are outside of the court’s jurisdiction, then the respondent should file a Special Appearance before filing anything else.

Filing any other type of response before a Special Appearance will tell the court that the respondent submits to the court’s jurisdiction.

If the respondent does not have a jurisdictional challenge, they should file an Answer with the court clerk to show that they are interested in the case and are not ignoring the court’s authority. There is generally no fee to file an Answer. 

If the respondent has their own claims against the petitioner, then the respondent can tell the court about those claims in a Counter-Petition. There is usually a fee to file a Counter-Petition. statement of inability to pay costs can be used for a Counter-Petition to try to waive the filing fees. 

Discovery, Responding to Discovery, and Gathering Evidence

During the pre-trial phase of a suit, you and the other party will engage in discovery, which is the process of gathering and exchanging evidence for a court case from the other side. Read Discovery in Texas and Gathering and Presenting Evidence. 

If you’ve been sent discovery requests, answer them within the time that the court orders or the civil procedure rules require. Answer completely, based on all information reasonably available to you.SeeTexas Rules of Civil Procedure, Rule 192.7 – 193.1Ask a lawyer for help when you answer discovery.

Discovery has certain limits and deadlines. If you do not know these limits and deadlines, research them. See Texas Rules of Civil Procedure, Rules 192.1 and 192.2.

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