Sued in Texas, But Don't Live There?

People sometimes file lawsuits in the wrong state. For example, someone might file a case against you in a state where you have never lived. In situations like that, you may be able to make a special appearance.

After a case has been filed, the law assumes that unless you challenge a judge’s power to hear the case you agree that the judge can decide the case. If you are being sued in a state where you have no connections, you must file a special appearance before you file anything else in the case. This is how you alert the court that you don’t think it has jurisdiction over you.

A special appearance is a court document that lets a party in a lawsuit argue that the court does not have power over them. See Texas Rule of Civil Procedure 120a.

Someone who files a special appearance can object to appearing in either the entire case or just one part of the case.

A special appearance must be filed before you file anything else in the case. The biggest mistake people make regarding special appearances is filing an answer first. If the special appearance is not filed first, you can no longer challenge the judge’s authority to hear the case.

You may file your special appearance with other motions, such as an answer or a counterpetition, but it must be the first document in line, or your right to file the special appearance goes away forever.

A special appearance is important because it challenges a judge’s authority to exercise personal jurisdiction over a party (or their property) in a lawsuit. If a judge does not have personal jurisdiction over the parties in a suit, the judge may not order any actions from the parties (such as ordering child support).

Personal jurisdiction is the power of the court over a person, their body, and their rights. There are two types of personal jurisdiction: general jurisdiction and specific jurisdiction.

• General jurisdiction is a court’s authority to hear claims against a party when they are at home. A party, or the person being sued, is at home in the state where they live.

• Specific jurisdiction is the type of jurisdiction that affects special appearances. Specific jurisdiction comes from a person having significant connections, known as minimum contacts, with a state. Even one connection can be enough for a judge to acquire specific jurisdiction over you. You only need to intend to do something and expect the laws of the state to protect your interests. However, you cannot have minimum contacts with a state based on someone else’s actions.

  Texas courts cannot exercise specific jurisdiction over a person who does not live in Texas unless the lawsuit is based on claims that come from or are related to the nonresident’s actions and contacts with Texas.

  Example: If you sell a defective product to people who live in Texas, the judge may find that you had minimum contacts with the state of Texas.

Ask a Texas attorney to help you determine if Texas has personal jurisdiction over you.

Your special appearance must show that court does not have personal jurisdiction over you. Your special appearance can tell the judge that you are not a resident of the state of Texas and that you do not have minimum contacts with Texas. If you do have minimum contacts with Texas, your special appearance must show that the claims for the lawsuit did not come from your connections with Texas.

If your case involves family law, you must also show that the requirements of Texas Family Code 6.305 were not met when the lawsuit was filed. This law covers when a Texas court can handle a divorce involving someone who doesn't live in Texas. You must also show that the requirements of Texas Family Code 102.011—about custody and visitation cases—were not met.

1. File your special appearance with the court and attach an affidavit that provides the facts that support your point of view.
2. Your affidavit must be signed in front of a notary. Your affidavit should include information based on your personal knowledge, not information you have heard of or learned from anyone else.
3. You must file your affidavit at least seven days before the hearing on your special appearance.
4. You should also request a hearing on your special appearance. Just like you must file the special appearance before any other pleadings, the judge also must have a hearing on the special appearance before deciding any other issues in the case. Texas Rule of Civil Procedure 120a. If the judge determines that they are not the correct judge to hear this case, there will be no reason for the court to hear any other issues.
5. Finally, you will appear in court and testify to the reasons why this court should not hear this case. You can request to appear in court virtually.

If your request for special appearance is granted, the judge agrees that they do not have the authority to rule on this case, and the suit cannot continue against you in Texas state courts.

If your motion for special appearance is denied, you may be able to appeal. Talk to a lawyer before filing an appeal. Appellate law is a specialized area with complex deadlines.

You do have the right to represent yourself in most types of civil cases, but if you hire a lawyer—which is a good idea—only a lawyer licensed in Texas can practice law in Texas. Read Legal Help for Nonresidents of Texas to learn ways to find a lawyer in Texas.

If you talk to a lawyer and decide that filing a special appearance is the right thing to do, Fees and Hiring a Lawyer explains how to manage the costs of hiring a lawyer. Consider limited-scope representation. As a last resort, read Drafting Your Own Documents and How to E-file.