The Law Blog

Credit Card Lawsuits and The "Suit on a Sworn Account" In Texas

2009-04-17T07:40:00.001-07:00

In Texas, a “suit on a sworn account” is not a separate cause of action. It is a sort of “procedural device” allowed under Texas Rule of Civil Procedure 185. It is used in certain types of breach of contract actions that involved the plaintiff furnishing goods or services to the defendant. The principle advantage of a “suit on a sworn account” is that it allows the plaintiff to establish a “prima facie” right of recovery on its sworn petition if the defendant does not file a sworn denial. A defendant’s filing a “general denial” will not be enough for him to survive the plaintiff’s motion for summary judgment in a suit on a sworn account. In other words, the defendant will loose the suit on a sworn account without ever getting his jury trial. (For this reason, I currently suspect that a suit on a sworn account may violate Article I, Section 15 of the Texas State Constitution, which says: “The right of trial by jury shall remain inviolate…”. However, I haven’t researched the case law to see if this issue has been raised, so I am uncertain. It would also require looking into the historical basis of the suit on a sworn account, and the history behind Article I, Section 15.)

The constitutionality of the suit on a sworn account notwithstanding, it is clear that such a suit must be regarding a breach of contract involving the furnishing of goods or services. A plaintiff who merely loaned money to the defendant so that the defendant could buy goods or services from a third party cannot properly file a suit on a sworn account. Such a plaintiff must file an ordinary breach of contract, or other, action, and the burden is on the plaintiff to prove the breach of a contract.

The reason it is important to understand something about the suit on a sworn account is because credit card companies and third-party debt collectors in Texas, who are suing on a credit card debt, frequently try to file a “suit on a sworn account” on a credit card debt, despite the fact that it is often improper to do so. (The main exception would be if the credit card were some sort of store credit card, which might fall under the auspices of TRCP 185.) The motive for doing so is easy to see: it would place the burden on you to prove that you didn’t owe the debt. However, since credit card companies do not normally furnish you with “goods or services” (they merely loan you money to buy those goods and services from a third party), it is usually improper for them to file a “suit on a sworn account”. I regard it as unethical and illegal, and if I were a judge, I would sanction credit card company lawyers that deliberately broke the law like this, but I’m not a judge. So, you will have to make sure that you don’t let the credit card company lawyer in your case get away with it.

Chapter 7 Bankruptcy -Dallas, Texas

2009-03-27T12:16:00.000-07:00

Chapter 7 Bankruptcy is titled “Liquidation”. Basically when you file for Chapter 7 Bankruptcy, your assets (at least “in theory”) are turned over to a bankruptcy trustee who then distributes them out to your creditors. In exchange for this, you get a discharge on certain debts, which means you are no longer under a legal obligation to pay those debts. If this was all that is understood about Chapter 7 Bankruptcy, you might think that it doesn’t sound like a very good option. (After all, if you have to give up your assets, such as your house, in order to get the discharge, then what is the advantage?) The law allows you to keep some of your assets when you file for Chapter 7 Bankruptcy. (Which assets you get to keep largely depends on what state you live in. I will assume here that we are talking about Chapter 7 Bankruptcy in Texas, because that is where I live.) The reason I say that you must give up your assets “in theory” when in Chapter 7 Bankruptcy is because a significant number of people will find that almost all of their assets are “exempt” under Texas law, so they will get to keep them by claiming state exemptions. (See Schedule C – “Property Claimed as Exempt”, and 11USC Section 522(b)(3), and Texas Property Code, especially Texas Property Code Sec. 41.001, 42.001, 42.002, and 42.0021.) For instance, many people in Texas will find that their house is homesteaded and that they can keep it in Chapter 7 Bankruptcy, assuming that they are still current on any mortgage or other debts secured by the house, but beware that recent changes in the Bankruptcy law have capped this exemption for some people recently moving to the state. (See 11 USC Section 522(p).) If you don’t own your home, you also might be better off claiming the Federal exemptions found in the Bankruptcy code. (See 11 USC Sec. 522(b)(2), 522(d)(1), and 522(d)(5) –Note that (d)(5), the “wildcard exemption”, would allow a renter to take a portion of the home ownership exemption found in (d)(1) to apply to any property that they own.) Whether to take the Federal or State exemptions, like everything, depends on your situation.

The basic bankruptcy process will work like this: (This is just a general outline, and you should consult with a lawyer for details.) First, you will need to take a credit counseling class, which should be available online from several sources . (See 11 USC Sec. 109(h) You will receive a certificate, which must be filed at the bankruptcy court. (Note that you must also take another “financial education class”, prior to receiving your discharge in Bankruptcy.)

After you get your certificate from the credit counseling class, you prepare the petition, schedules, and associated forms and file them with the proper bankruptcy court. File the credit counseling certificate with the court as well. The proper court to file in depends on where you live. In the Dallas area, this will probably either be the Northern District of Texas Bankruptcy Court or the Eastern District of Texas Bankruptcy Court. Forms for the petition and schedules that you must file are available at either court’s web site. Fill out all of the required information for your particular situation on the petition, forms, and schedules and file it with the court. You must also prepare and file a creditor’s matrix, which lists all of your creditors and their addresses, so that they can receive notice of the bankruptcy filing. The format of the creditor’s matrix usually depends on the court you are in, so check the web site of the particular court your are filing in. (Also, lawyers use electronic filing over the Internet, so I am uncertain whether the courts even take paper filings anymore. Call the clerk and ask whether you must file in an electronic format, or look on the court’s web site for details on pro se filing if you are doing it yourself.)

After you have filed all of the proper documents with the court, you will receive a notice for the “meeting of creditors”. Attorneys sometimes call this the “341 meeting”, because it is required under Section 341 of the bankruptcy code. A date, time, and location should be on the notice. You need to appear at this meeting, and you will be asked questions by the trustee and by any creditors who choose to attend. (In the typical “consumer debtor” case, i.e., your unsecured debts are mostly credit card debts, the creditors probably won’t bother showing up.) (Note that if you are a creditor, and receive notice that someone who owes you money has filed for Bankruptcy, then you have the right to attend the 341 meeting of creditors and ask questions of the debtor. As a creditor, you have other rights, including the possibility of getting a portion of any non-exempt property that the trustee collects.) Prior to the meeting date, you should call the trustee whose name and number appears on the notice, say you are representing yourself, and ask what records you are required to bring or send to the trustee in advance. For instance, you are required to provide and/or file your Federal income tax return, for the most recent tax year, within a specified time prior to the meeting. (See 11 USC Sec. 521(e)(2)(A)(i).) You must also provide income records for the 60 days prior to filing (these are typically pay stubs). (See 11 USC Sec. 521(a)(1)(B)(iv).)

After filing the petition, you will want to take the second course that was mentioned earlier. This is called something like the “pre-discharge financial management course”, and should also be available online. (See 11 USC Section 727(a)(11).) This certificate of completion also needs to be filed with the court. (Don’t assume that this is all that you have to do. You should consult 11 USC Section 521 regarding all of your duties as a debtor –as well as the rest of the bankruptcy code-, and make sure that you comply with all of them.)

Assuming that all goes well, then you would receive an order of discharge, which means you are no longer under a legal obligation to pay certain debts listed in the bankruptcy code, and other applicable law. (This typically will mean no further obligation to pay credit card debts.) Section 523 lists exceptions to discharge. These will probably come into play if things don’t go well for you. For the average consumer debtor, the most likely exception to discharge would be under Section 523(a)(2). This would include loans obtained by means of “fraud”. For instance, obtaining a loan with the intention of never paying it back, at the time that you get the loan, would likely be considered fraud, which would be an exception to discharge.

Before an exception to discharge of a debt will be found under Section 523(a)(2)(A), the creditor will have to prove this in an “adversary proceeding” in the bankruptcy court. The courts have defined the elements that the creditor must prove under 11 USC Section 523(a)(2)(A). In Texas these are: (1) that the debtor made a representation; (2) that the debtor knew the representation was false; (3) that the representation was made with the intent to deceive the creditor; (4) that the creditor actually and justifiably relied on the representation; and (5) that the creditor sustained a loss as a proximate result of its reliance. (See GE v. Guilford 406 F.3d 367, 372 (5th Cir. 2005).) (The attitude of most credit card companies and their lawyers sometimes seems to be that anybody who files for Chapter 7 acted fraudulently –this is probably because it is in their financial interest to use these exceptions to discharge as a means to eviscerate Chapter 7 Bankruptcy law through the court system. They will, of course, deny this.)

Such an adversary proceeding to determine dischargeability of a debt will be instituted by the creditor by filing a complaint alleging an exception to discharge under a specific statute, such as 11 USC Section 523(a)(2)(A). The adversary proceeding should be thought of as a separate lawsuit, to which you must file an answer and/or pre-answer filing, in accordance with the Federal Rules of Bankruptcy Procedure and the applicable Federal Rules of Civil Procedure. You must also engage in discovery, motion practice, and eventually have a trial regarding the matter. It will be time consuming, and you should familiarize yourself with all of the rules of procedure, and the local rules of the court. You will also need to familiarize yourself with the particular statute under which they are claiming an exception to discharge, and with the case law interpreting that statute. (Expect the creditor’s attorney to try to take advantage of the fact that you are not a lawyer.) Having a lawyer from the beginning is a good idea, but now you should really reconsider your decision to represent yourself, and retain a lawyer.

Texas Ex Parte Divorce

2008-12-23T10:36:00.001-08:00

Just like any other lawsuit, a court must possess personal jurisdiction over the respondent in a divorce suit. The concept of “personal jurisdiction” is the right of a court to hear and determine a lawsuit involving a defendant by virtue of the defendant's having some contact with the place where the court is located. Every state generally has personal jurisdiction over persons within its territory. If the respondent is a Texas domiciliary and service of process is accomplished or the respondent accepts or waives service or otherwise enters an appearance, the court acquires personal jurisdiction. However, an “ex parte divorce” may be granted to a Texas domiciliary, even though the other spouse is a domiciliary of another state and is not amenable to process in Texas. “Ex parte” means a proceeding brought before a court by one party only, without notice to or challenge by the other side. In other words, the person seeking a divorce can file in a Texas District court without serving process or other notice on the person they are seeking a divorce from. Since the court does not have personal jurisdiction over the spouse, the court may only exercise “partial jurisdiction” over certain issues. The Texas District court has the jurisdiction to grant the divorce, but not to determine the managing conservatorship of children (child custody and support issues) or divide property outside the State of Texas. (The Texas District court may also lack jurisdiction to divide property within the state.) (See Dawson-Austin v. Austin, 968 S.W.2d 319 (Tex. 1998).)

The Holographic Will

2008-05-12T11:43:00.000-07:00

A will is a legal means of disposing of your assets at death. If you do not have a will, then the legislature of the State of Texas has written laws of “intestate succession” that determine who gets your assets at death. Another way of looking at the issue is to think of the intestacy laws as the “default” means of disposing of a person’s assets at death, which he can vary by writing a will. One interesting feature of Texas law is the ability to write what is known as a “holographic will”, which will be honored by the courts if it is executed correctly. A holographic will must be written wholly in the handwriting of the testator and may be validly executed without the use of witnesses. (See Texas Probate Code Section 60.) In Texas, a signature by initials is sufficient to execute the instrument as a will if the will is otherwise “testamentary in character”, i.e., the writing shows the maker's desire to make a revocable disposition of his or her property to take effect after the maker's death, and the will need not be dated. (Cason v. Taylor, 51 S.W.3d 397 (Tex. App.-Waco 2001).) A holographic will that includes the signature somewhere in the instrument is sufficient to be regarded as a signature for a holographic will, even if it is not at the bottom or end of the holographic will. (In re Estate of Brown, 507 S.W.2d 801 (Tex. Civ. App. -Dallas 1974).)

These minimal criteria for a valid holographic will in Texas has led to the admission of some unusual documents as wills. In one case a greeting card that had the following writing on it was admitted as a holographic will: “Last Will: I leave everything to Verneice Daniels. BHD.” (Although it should be noted that the court in that case took into consideration the fact that the person who wrote the will was a practicing attorney –which tended to suggest that he knew what he was doing when he wrote it.) (Trim v. Daniels, 862 S.W.2d 8 (Tex. App.-Houston [1st Dist.]).) It is important to understand that it is possible for such an informally written document to be considered a valid will in Texas for at least two reasons. First, it is a cheap way of writing a will for yourself. Although hiring an attorney to write a formal, attested will, is preferable, this may not always possible in all circumstances, and the holographic will gives you a quick and easy means of disposing of your assets at death. The second reason to have some understanding of holographic wills is because if someone close to you dies, although they may not have written a formal, attested will, they may have written a holographic will which includes you as a beneficiary. Or, they may have written a formal, attested will that did not include you as a beneficiary, but then subsequently wrote a holographic will that revokes the prior will, and includes you as a beneficiary. It’s also possible to amend a prior, formally attested will with a “holographic codicil” in Texas. ( In re Estate of Brown, 507 S.W.2d 801 (Tex. App. –Dallas 1974) The holographic codicil might include you as a beneficiary. It is easy to imagine a situation where a person having considerable assets may have had a friend or lifelong companion that they intended to leave assets to at death, but they never got around to writing a formal, attested will. However, the now-deceased person may have written a letter or some other written instrument in their own handwriting that is signed and was intended to be a will, and, in fact, is testamentary in character. The point is: don’t just assume that because someone didn’t hire an attorney to prepare a formal will signed by two witnesses, that they didn’t write a will in Texas.

Driving While Intoxicated in Texas: The Request for ALR Hearing and Pre-Hearing Discovery

2008-01-20T08:45:00.000-08:00

In Texas, a person arrested for Driving While Intoxicated will normally have his driver’s license taken away from him by the arresting officer. This will normally happen because he either refused to provide a breath or blood specimen, or because he consented to give the specimen, and the test determined that he had a blood alcohol concentration of 0.08 or more. In place of his normal driver’s license, the arrested person will get a piece of paper (probably yellow in color) that will say “Notice of Suspension Temporary Driving Permit”. (DIC-25) This notice will tell him that his license will be suspended or denied effective 40 days after the date he received the DIC-25 (normally the day he was arrested). At the bottom of the DIC -25, it will tell him that he can request a hearing (known as an “Administrative License Revocation Hearing” –“ALR hearing”) to contest the suspension, and will give him an 800 number, a fax number, and a PO BOX address to send the request for hearing. (Currently, the fax number is 512-424-2650, but consult the DIC-25 or call DPS to make sure this information is still correct.) Normally, it is best to send a fax, then follow up with a phone call to make sure they got it. If you don’t have a fax machine, go to a Kinkos or a UPS store and have them send a fax, which will give you a successful transmission receipt to prove that you sent it. The bottom of the DIC-25 will also set forth what information needs to be included in the fax requesting the hearing. (This includes: Full name, date of birth, driver’s license number and state, current mailing address, home and daytime phone number, date and county of arrest, arresting agency, arresting officer, and whether test was failed or refused or not requested. If you want a live hearing, explicitly request it. You can also request a telephone hearing. (See Tex. Transp. Code § 524.034 and Tex. Transp. Code § 724.041). The request for hearing must be received by the Texas DPS no later than 15 days after receiving the notice (which normally means 15 days after being arrested for DUI). The request for a live ALR hearing might look something like this:

Texas Department of Public Safety, Driver Improvement Bureau

FAX: 512-424-2650

{date}

RE: Notice of Request for Live (in person) ALR Hearing

This is my notice of request for a live, in person, ALR hearing regarding the suspension of my driver’s license. Here is the relevant information:

Full Name: {put down your full name}

Date of Birth: {put down your date of birth}

Driver’s License Number and State: {put down your driver’s license number –see DIC-25}

Current Mailing Address: {put down your mailing address}

Home and daytime Telephone numbers: {put down your home and daytime telephone number}

Date of Arrest: {date of arrest –see DIC-25}

County of Arrest: {put down county of arrest –see DIC-25}

Arresting Agency: {agency that arresting officer worked for –see DIC-25}

Arresting Officer: {officer’s name and badge number on DIC-25}

Test Failure or Refusal: {put down: “purported refusal” or “purported failure”}

{your signature}

After sending the notice, DPS will mail you notice of the hearing date. The DIC-25 also says that if a hearing is requested, the temporary permit to drive will remain in effect until the administrative law judge makes a final decision in the case at the requested ALR hearing. (Keep in mind that the administrative license revocation process is a completely separate matter from the underlying criminal case for driving while intoxicated, which has its own procedures and hearings.)

Most of what has been said so far can be understood simply by reading the DIC-25 carefully. Another fairly easy step that should normally be taken is to request pre-hearing discovery. The Texas Administrative Code sets forth the right to pre-hearing discovery. (See 1 Texas Admin. Code § 159.13. However, unlike the request for ALR hearing, which should be done as soon as possible after you are arrested, you should wait a little while before filing the request for pre-hearing discovery. 1 Texas Administrative Code § 159.13(1) says: “…The request for discovery may not be filed with the department sooner than the date of the request for hearing, and may not be filed sooner than five days from the date of the notice of suspension…” This means that since notice of suspension (the DIC-25) is normally received on the date of arrest, you must normally wait until 5 days after the date of arrest to request pre-hearing discovery. Furthermore, you must not send the notice of pre-hearing discovery before the DPS has received your notice of hearing. Where should the request for pre-hearing discovery be sent? 1 Texas Administrative Code § 159.13(1) also says: “…All requests for discovery must be in writing and shall be served upon the department as prescribed in 37 TAC § 17.16 …”. 37 Texas Administrative Code Sec. 17.16 currently says that the fax number is: (512) 424-7171, and that the fax should be “…to the attention of the Director of Hearings, ALR Program…”. The fax for pre-hearing discovery, in a “refusal” case, could look something like this, in some instances:

Director of Hearings,

ALR Program

PO BOX 15327

Austin, Texas 78761-5327

Fax No: 512-424-7171

ATTENTION: DIRECTOR OF HEARINGS, ALR PROGRAM

Re: Discovery Request for "Refusal" Hearing

{your driver’s license number}; {your full name}

{SOAH Docket No. – put “Unassigned” if you haven’t received a notice of ALR hearing date yet}

{date you send request}

I hereby request all of the following items to be furnished to me forthwith pursuant to 1 Tex. Admin. Code § 159.13(a), Tex. Gov't Code § 2001.091, and the Texas Open Records Act, Tex. Gov't Code § 552:

1) a copy of the form DIC-23;

2) a copy of the Form DIC-24;

3) a copy of the DIC-25; and

4) a copy of my driving record, if it is to be offered for enhancement purposes.

If there are copying charges associated with this request, please notify me promptly so that payment arrangements can be made.

Sincerely,

{your signature}

You probably already have a copy of the DIC-24 and DIC-25, but you should ask for them again. The DIC-23 is the peace officer's sworn report or probable cause affidavit. (See 37 Tex. Admin. Code § 17.4(1)(B).

Personal Jurisdiction and You

2008-01-18T15:53:00.000-08:00

I recently had to deal with an interesting legal issue. The relevant facts of the situation were these: a client was sued in a Federal District Court in another state. The client didn’t live in that state. The client didn’t do business in that state. The plaintiff had clearly chosen to sue in that state because they happened to be in that state, even though it seemed like the wrong court to me. What was wrong with where the plaintiff had chosen to file suit? The court in this other state lacked (among other things), personal jurisdiction over the defendant.

Personal jurisdiction is the idea that a defendant must have a proper connection with the court in which he is sued before that court may enter an “in personam” judgment against him. An “in personam” judgment is the type of judgment that requires a defendant to pay money or to obey some sort of injunction issued by the court. An “in personam” judgment is normally contrasted with a judgment “in rem”, which is a judgment regarding some particular piece of property within the state where the court sits. An “in rem” judgment, in contrast to an “in personam” judgment doesn’t impose any legal obligations on the part of anybody to pay money or to obey an injunction, it simply disposes of the legal rights of individuals with regard to some specific piece of property in the state. If a court may lack personal jurisdiction over an individual, he should consider challenging that court’s legal power over him regarding that issue.

Federal Rule of Civil Procedure 12 should be consulted when one desires to challenge personal jurisdiction in Federal Court. One important thing to note about this rule is the requirement that certain defenses be pled at or before one serves an answer. If the defendant fails to raise these defenses at the proper time, then he waives them. Personal jurisdiction is a defense that should normally be challenged, by means of a pre-answer motion, made before an answer is served in order to avoid any possibility of waiver.

The case law concerning personal jurisdiction is complex, and often vague. When studying this area of law, one will hear buzzwords like “minimum contacts”, “due process”, and “International Shoe”. It is an example of when hiring someone who has experience in law is usually a good idea. It is also an example of why a defendant should hire a lawyer as soon as possible, since a motion challenging personal jurisdiction will normally need to be served on the opposing party within 20 days after the defendant was served with the summons and complaint. (It may seem like a long time, but 20 days goes by very fast when you’ve been sued.)

Good Personal Finance Article

2008-01-18T12:03:00.001-08:00

I think that this article makes a lot of good points regarding personal finance and bankruptcy for those with a lot of unsecured debt.

Post-Judgment Collection In Texas

2007-10-04T19:26:00.001-07:00

   Once a plaintiff wins a judgment in a court, he must turn to collecting on that judgment. You might be surprised to learn that in Texas, some judgment debtors (people who lost a lawsuit and now owe the Plaintiff money), with a significant amount of wealth, do not have any assets that the judgment creditor (the Plaintiff who won the lawsuit) can take.

   There are several methods a judgment creditor might use to attempt to collect on a judgment in Texas. One method is to file an abstract of judgment. This will create a lien on the judgment debtor’s (nonexempt) real property in the county where the abstract of judgment is recorded and indexed. (Tex. Prop. Code § 52.001) (Note that this will only work with regard to the judgment debtor’s nonexempt real property, and the Texas homestead exemption will make most people’s homes exempt from this –see below.) Another common form of collection on a debt in Texas is a writ of execution. (See Texas Rule of Civil Procedure 621) An execution is a process of the court from which it is issued. The clerk of the district or county court, or the justice of the peace, shall issue execution to collect on a judgment . The writ of execution orders a sheriff or constable to satisfy the judgment and costs out of the property of the judgment debtor, to the extent that any property is subject to execution by law. (Note that the sheriff can only take (levy) property that is not exempted under the Texas property code, and some people may not have any property that isn’t exempt –see below for more on this.)

   A number of judgment debtors may discover that they can keep most if not all of their property, despite the judgment debt they owe. Furthermore, it should also be noted that, with certain family law exceptions, wage garnishment is generally not available for most types of debts arising under state law in Texas (See Texas Constitution Art. XVI, Sec. 28) Under Texas law, certain property is generally exempt from the satisfaction of many types of unsecured judgment debts. The biggest exemption for most people is their homestead exemption. (See Tex. Prop. Code § 41.001 (2007).) This will usually protect the judgment debtor’s house from certain types of unsecured judgment debts, such as a judgment debt owed to a credit card company. Furthermore, the homestead claimant's proceeds of a sale of a homestead are not subject to seizure for a creditor's claim for six months after the date of sale. (See Tex. Prop. Code § 41.001(c) (2007).) The Texas Property Code also provides an exemption for certain types of personal property, up to a certain value, from many unsecured debts. (See Tex. Prop. Code § 42.001 (2007).) For instance, a single adult, who is not a member of a family, has an exemption for various types of personal property, up to $30,000 in value, such as: home furnishings, including family heirlooms; farming or ranching vehicles and implements; tools, equipment, books, and apparatus, including boats and motor vehicles used in a trade or profession; wearing apparel; jewelry not to exceed 25 percent of the aggregate limitation prescribed by Property Code Section 42.001(a); two firearms; athletic and sporting equipment, including bicycles; and a two-wheeled, three-wheeled, or four-wheeled motor vehicle for each member of a family or single adult who holds a driver's license or who does not hold a driver's license but who relies on another person to operate the vehicle for the benefit of the nonlicensed person. (See Tex. Prop. Code § 42.001 & Tex. Prop. Code § 42.002 (2007)) There is also an exemption under Texas law for many types of retirement plans. (See Tex. Prop. Code § 42.0021 (2007))

The Section 1983 Civil Rights Action

2007-09-26T13:36:00.000-07:00

42 USCA Sec. 1983 was originally enacted by Congress as part of the Ku Klux Klan Act of 1871, pursuant to the power granted to Congress under Section 5 of Amendment 14 to the US Constitution. Although its initial purpose was to protect the constitutional rights of racial minorities in the Reconstruction South, it was written broadly enough to create a federal cause of action for anyone whose rights have been violated under the 14th Amendment. Since the 14th Amendment incorporates many of the first 10 Amendments to the US Constitution, and makes those provisions applicable against the states and state officials, a “1983 Action” is an effective means of bringing suit in Federal court against State Officials that have violated Constitutional rights such as the right to free speech, freedom of religion, to be free from unreasonable search and seizure, and to just compensation for takings of private property. (Prior to the Civil War and the 14th Amendment, the Bill of Rights in the US Constitution was regarded as only protecting individuals from Federal deprivations of rights, not State governments.)

Section 1983 relief is supplementary to any state remedy that may exist for violations of your rights by state officials, and there is generally no requirement that a plaintiff exhaust state law remedies before pursuing a Section 1983 action. Furthermore, state officials are subject to suit under Section 1983 even if their actions are not authorized by state law, but are in fact prohibited by state law. Another advantage of the Section 1983 action is that an attorney’s fee award is available under 42 USCA Section 1988. Since some Section 1983 plaintiffs may only be seeking an injunction against governmental deprivations of rights like the right to free speech, or the right to be free from religion under the Establishment Clause, where there are no monetary damages, the allowance for an award of attorney’s fees to a prevailing Section 1983 plaintiff creates an incentive for lower-income plaintiffs to bring suit when a State or its officials have violated individual rights. In some cases, not only are compensatory damages available for rights violations under Section 1983, but punitive damages as well.

Unfortunately, one of the biggest hurdles to winning a damages award in a 1983 Action is Sovereign Immunity This is the idea that government and government officials are immune from lawsuits or other legal actions except when government has consented to the lawsuit. The courts have interpreted 42 USCA Sec. 1983 as failing to abrogate common law sovereign immunity because Congress did not explicitly abolish it in the language of the statute. Although the 14th Amendment’s Section 5 probably would give Congress the power to abolish common law sovereign immunity, the courts have assumed that Congress has chosen not to exercise this power. However, police officers and other state executive officials are regarded by the courts as having a mere “qualified immunity”, rather than an “absolute” immunity, which means, for police officers, that the defense of good faith and probable cause, which was available to police officers at common law, is available under a Section 1983 action. If a police officer fails to act with “good faith and probable cause”, then he becomes liable for a damages award under a Section 1983 action. Furthermore, actions for “prospective relief”, i.e., a declaratory judgment that a law is unconstitutional, or an injunction against a state executive official, ordering him not to enforce an unconstitutional law is available despite sovereign immunity because the courts regard an injunction as merely requiring a state official to obey the Constitution.

The Eleventh Amendment to the US Constitution also does not prevent a 1983 suit in Federal court against a state executive official for an injunction ordering him to obey the Constitution. The 11th Amendment has been construed to mean that a suit against a state official in Federal court cannot be instituted without that State’s permission (so-called “Eleventh Amendment Immunity”). However, Section 1983 was enacted pursuant to Section 5 of Amendment 14, which is considered to abrogate 11th Amendment Immunity to the extent a Federal cause of action is enacted to enforce the provisions of Amendment 14. However, 11th Amendment Immunity does still have applicability in the context of a 1983 Action because, just as the courts have interpreted 42 USCA Sec. 1983 as evidencing no Congressional intent to abrogate common law sovereign immunity, so too have the courts said that Congress has shown no intent to abrogate 11th Amendment Immunity under Section 1983 (although Congress would have the power under Section 5 of Amendment 14 to the US Constitution to do this if it wanted to).

As was already noted, pursuant to 42 USCA Sec. 1988, Section 1983 actions give a prevailing plaintiff a right to a reasonable attorney’s fee. Section 1988’s explicit terms seem to make this award of attorney’s fees discretionary, and to apply to “prevailing parties”, whether the plaintiff or the defendant. But, this has not been the way this statute has been interpreted by the courts. The Supreme Court has said that a prevailing plaintiff should ordinarily recover an attorney’s fee unless special circumstances would render such an award unjust. (Newman v. Piggie Park Enterprises (US Supreme Court, 1968)) Furthermore, a prevailing defendant will normally not be awarded an attorney’s fee in a Section 1983 action, unless a court finds that the plaintiff’s action was frivolous, unreasonable, or without foundation. (Hughes v. Rowe (US Supreme Court 1980)) The reason for this interpretation of Section 1988 probably stems from the fact that the purpose of Section 1983 is to ensure that state officials obey the constitution, and the threat of the state recovering its attorney’s fees, if the Plaintiff has only brought what can be considered a reasonable lawsuit, would deter most potential Section 1983 Plaintiffs from ever filing suit, thereby encouraging continued violations of the Constitution by state officials. Furthermore, the amount to be awarded as attorney’s fees may exceed the damages award, and are available when only an injunction was sought under Section 1983.

An example of a Section 1983 Action would be a lawsuit challenging a state law that violates the Establishment Clause to the US Constitution’s First Amendment. Since the First Amendment has been incorporated by the 14th Amendment, it is applicable against the states, making a 1983 Action appropriate. Since many Establishment clause violations do not involve money, a Plaintiff will usually be seeking an injunction against the enforcement of the unconstitutional law. Given what has been said about 11th Amendment Immunity, the proper Defendant to name in a lawsuit alleging violations of the First Amendment will normally be the State’s chief executive officer, usually the Governor of that state, although other additional or alternative defendants may be appropriate in certain circumstances. The relief sought will be prospective, namely an injunction, ordering the official not to enforce the unconstitutional law. Additionally, a request for attorney’s fees should be made in your original petition, pursuant to 42 USCA Sec. 1988.

Some Texas Courts

2007-09-12T17:07:00.000-07:00

General Notes Regarding Texas Courts: For non-criminal matters, original jurisdiction for a Texas state court tends to depend on the amount of damages sought, although some courts’ jurisdiction for certain matters do not depend on the amount of money damages sought. Below is a general description of some of the more common types of civil courts in Texas, and descriptions of some of their functions.

Justice Courts- These courts exist by virtue of the Texas Constitution, Art. 5, Sec. 19. The amount in controversy in Justice Courts, as of 2007, are claims not exceeding $10,000. Justice courts also have exclusive original jurisdiction for cases in which the amount in controversy does not exceed $200. They have concurrent jurisdiction with county courts and district courts in civil cases where the amount in controversy exceeds $200 but is less than or equal to $10,000. (See Texas Gov. Code Sec. 27.031) Justice Courts also have original, exclusive jurisdiction over suits for forcible entry and detainer (evictions) for all property located in the precinct where the Justice court is located. (See Texas Gov. Code Sec. 27.031(a)(2))

Small Claims Court- A justice of the peace (the same judge who presides over justice courts) presides over small claims court in Texas. Small claims courts have concurrent jurisdiction with justice courts in actions for money damages of $10,000 or less. (See Texas Gov. Code Sec. 28.003) . This means that if you are looking for your local small claims court, you should look for your local justice court. The primary advantage of small claims court over justice court is the fact that the Texas Rules of Evidence do not apply in small claims court. (See Texas Rules of Evidence 101(b).) This makes it easier for the non-lawyer to represent himself in small claims court. These courts generally have forms available for you to fill out to get a case started on your own.

County Court at Law- These tend to have concurrent jurisdiction with the justice courts in civil cases in which the amount in controversy is $200.01-$10,000. They also tend to have concurrent jurisdiction with district courts where the amount in controversy is $500-$100,000. To get a better idea of the jurisdiction of a particular county court at law, consult the Government Code, and look for the provision for that county’s courts at law. (See Texas Gov. Code Chapter 25) Generally, an appeal from a Justice Court would be to County Court at Law.

District Courts- These are the primary trial courts in Texas. They have no upper limit on the amount in controversy for civil jurisdiction. They seem to have a lower limit of $200.01, although this isn’t certain, based on the case law, the statutes, and the Texas Constitution. The Texas constitution says that “District Court jurisdiction consists of exclusive, appellate, and original jurisdiction of all actions, proceedings, and remedies, except in cases where exclusive, appellate, or original jurisdiction may be conferred by this Constitution or other law on some other court, tribunal, or administrative body.”, so this is fairly broad.

The Business Records Affidavit

2007-08-18T06:02:00.000-07:00

    In Texas, “hearsay” is defined by the Texas Rules of Evidence (TRE). TRE 801 gives the legal definition of hearsay. TRE 802 says that hearsay is not admissible “…except as provided by statute or these rules or by other rules prescribed pursuant to statutory authority.” This means that hearsay is generally not admissible at court, but if an exception can be found in some other legal source, such as the rest of the Texas Rules of Evidence, then this evidence will be, in effect, taken outside the general prohibition on hearsay.
    One common type of evidence that is generally going to be hearsay are business records. There are many reasons one might want to introduce business records at trial. For instance, in a personal injury case, a party may want to introduce records from the plaintiff’s place of employment, showing his pre-injury earning capacity. In a case involving damaged personal property, the repair bill or written estimate of the repair costs, for the property may need to be introduced to prove your damages (or to show that the other party’s allegation of damages is too high). Such business records will generally be considered hearsay because they are usually going to be a written statement made by a person who is not testifying at the trial or hearing, and they are offered in evidence to prove the truth of the matter asserted. (Look back at the definition of “hearsay” found in TRE 801.)
    Fortunately, there is an exception within the Texas Rules of Evidence for “Records of Regularly Conducted Activity” that may take such business records outside the general prohibition on hearsay found in TRE 802. This hearsay exception is found in TRE 803(6). However, in order to take advantage of this exception to the hearsay rule, one would need to do some pre-trial or pre-hearing preparation. TRE 803(6) says that in order to take advantage of the hearsay exception, one must have one of two things at the trial or hearing. First, you can have an actual, live person, probably an employee of the business whose records you want to introduce, who is the “…custodian or other qualified witness…”, testify at the trial or hearing that they are the custodian of the business records you are trying to introduce, that the records are kept in the regular course of business, and that it was the regular course of business for an employee or representative of the business with knowledge of the act, event, condition, opinion, or diagnosis, recorded to make the record or to transmit the information thereof to be included in the record, and that the record was made at or near the time or reasonably soon thereafter. This first approach involves the difficulty of getting an actual, live person to attend the trial who is the “…custodian or other qualified witness…”. You will probably need to subpoena this person to ensure their attendance at trial.
    The second way to take business records outside the general hearsay prohibition of TRE 802, that will usually do the same job, and that is also set forth in TRE 803(6), is to have a “…custodian or other qualified witness…” of the business records you want to introduce sign an affidavit, as set out in Texas Rule of Evidence 902(10). (A sample version of the so-called “business record’s affidavit” is set out, word-for-word, in TRE 902(10), so the reader should look there for a sample copy.) (Note that to be legally effective, this must be notarized.) Then, at trial, instead of having the actual, live, “custodian of records” of the business physically attend and testify, the business records affidavit can generally be used to accomplish the same purpose. However, one should note that Texas Rule of Evidence 902(10) sets forth other important procedures that must be followed before evidence can be introduced at trial under a business records affidavit. For instance, you must file a copy of the business records and the business records affidavit with the clerk of the court for inclusion with the papers in the case in which the business records will be used as evidence. This must be done at least 14 days prior to the day trial is set to begin in the case. You must also give “…prompt notice…”, in accordance with the rules for service set forth in Texas Rule of Civil Procedure 21a, to the other parties in the case that the business records and the business records affidavit are being filed with the clerk. This notice must identify the name and employer of the custodian of records that signed the business records affidavit. The business records and affidavit must also be made available to the counsel for other parties to the litigation for inspection and copying.

Some Basic Discovery In a Lawsuit

2007-07-21T08:11:00.000-07:00

“Discovery” is the process by which the parties obtain information of the issues and facts of the lawsuit from others, usually opposing parties to the lawsuit. The purpose is to prevent “trial by surprise”, where some unknown information is presented by an opposing party for the first time at trial.

In Texas, it is common to be served with interrogatories, a request for disclosure, requests for admission and requests for production when you first get sued for something like a credit card debt or personal injury. (Although these forms of discovery are not limited to lawsuits on credit card debts and personal injury actions.) Sometimes these discovery requests will be served on you at the same time the original petition is served upon you. At other times, these will be served on you after you have been served with the original petition.

Failing to answer discovery requests will result in negative legal consequences. For instance, if a request for admission is not answered, or otherwise responded to, within the proper time period, it will be deemed admitted, automatically, on the day it is due. (See Texas Rule of Civil Procedure 198.2(c).) This could have severely negative consequences for the defendant’s case, if the plaintiff has asked him to admit or deny various elements of the case, and they are deemed admitted. Normally these elements of the “prima facie case” would need to be proven by the plaintiff. It would be a logical tactic for a Plaintiff’s attorney to serve requests for admission on a defendant that he knows is representing his self, in the hopes that the defendant will not understand the legal impact of failing to answer the requests in a timely manner. If the self-represented defendant fails to respond properly to the requests for admission regarding the elements of the plaintiff’s prima facie case, then the defendant may, essentially, lose the case before the trial has even begun. (Lawyers will try to take advantage of a self-represented individual.)

Responses to written discovery must be in writing, signed by the defendant (or his attorney), and, in the case of answers to interrogatories, verified. Responses to the written discovery discussed here is not normally filed with the court. (TRCP 191.4.) Responses will normally need to be served on all parties of record, not just the party that made the requests. If a party is represented by a licensed attorney, then service would be upon his attorney of record. There are several methods of service of written discovery available. Three ways are: certified US mail, fax, and hand-delivery. (TRCP 21a.) So for, instance, a defendant could send his written discovery responses to the fax numbers of the other party’s attorneys. These fax numbers are usually listed below the area where the other party’s attorney signs his name to written discovery requests.

The first type of written discovery request commonly encountered is the request for disclosure, found in Texas Rule of Civil Procedure 194. This is a request for some basic information about the case. For instance, TRCP 194.2(a) asks for “…the correct names of the parties to the lawsuit…” This form of discovery request may be found in the Plaintiff’s original petition (or the Defendant’s original answer). It may also be served as a separate written discovery document on the opposing party. The request will likely be in the form of the following language: “Under the authority of Texas Rule of Civil Procedure 194, defendant requests that plaintiff disclose, within 30 days of the service of this request, the information or material described in Rule 194.2...” If the request is served before the defendant’s original answer is due, then the defendant gets an extra 20 days to respond (50 days total). (See Texas Rule of Civil Procedure 194.3(a).) The format of the written response to the request for disclosure might look something like this in some cases:

{Caption: Will be something like ‘Joe Blow, Plaintiff v. John Smith, Defendant’, along with information about the court that the case is in, and the case number. The caption will normally be the same as the caption found at the top of the written discovery request being responded to, so it is probably a safe bet to copy that and put it at the top of the discovery response.}

DEFENDANTS’ ANSWERS TO PLAINTIFF’S REQUESTS FOR DISCLOSURE

To: Plaintiff, {Name of Plaintiff}, through his attorney of record, {Name, address, telephone, and fax number of plaintiff’s attorney}

Defendant {Name of Defendant} serves these answers to Plaintiff’s requests for disclosure made under Texas Rule of Civil Procedure 194.2.

ANSWERS TO REQUESTS FOR DISCLOSURE

1. Response to request under Rule 194.2(a): {text of response here.}
2. Response to request under Rule 194.2(b): {text of response here.}
3. Response to request under Rule 194.2(c): {text of response here.}
4. Response to request under Rule 194.2(d): {text of response here.}
5. Response to request under Rule 194.2(e): {text of response here.}
6. Response to request under Rule 194.2(f): {text of response here.}
7. Response to request under Rule 194.2(g): {text of response here.}
8. Response to request under Rule 194.2(h): {text of response here.}
9. Response to request under Rule 194.2(i): {text of response here.}
10. Response to request under Rule 194.2(j): {text of response here.}
11. Response to request under Rule 194.2(k): {text of response here.}
12. Response to request under Rule 194.2(l): {text of response here.}

Respectfully submitted,

{Defendant’s signature (or his attorney’s),
address, telephone, and fax (if any)}

Requests for admissions ask the responding party to either admit or deny a specific fact. When used legitimately, they can simplify the eventual trial by eliminating matters about which there is no controversy. (For instance, if the fact that the sky is blue and not red with green polka dots is important in the trial, a party could ask the opposing party to “Admit that the sky is blue and not red with green polka dots.” Usually, the responding party will then either admit it, deny it, say it can neither admit nor deny it (with a reason why he can’t), refuse to answer due to lack of information (in certain cases), object, or assert a privilege. (TRCP 198.2(b)) The format of a written response to requests for admissions may look something like this in some cases:

{Caption: Will be something like ‘Joe Blow, Plaintiff v. John Smith, Defendant’, along with information about the court that the case is in, and the case number. The caption will normally be the same as the caption found at the top of the written discovery request being responded to, so it is probably a safe bet to copy that and put it at the top of the discovery response.}

DEFENDANT’S ANSWERS TO PLAINTIFF’S FIRST REQUEST FOR ADMISSIONS

To: Plaintiff, {Plaintiff’s name}, by and through his attorney of record, {Name, address, telephone, and fax number of plaintiff’s attorney}

Defendant, {Defendant name}, serves these responses to Plaintiff’s requests for admissions.

RESPONSES TO REQUESTS

REQUEST FOR ADMISSION 1:

“You are the sole authorized user of Mister Card Credit Card, number 3333-5555-6666-4444.”

Response: {Possible responses: “Defendant admits”, or “Defendant denies”}

REQUEST FOR ADMISSION 2:

“Your address is 6666 Elm St. London, England.”

Response: {Possible responses: “Defendant admits”, or “Defendant denies”}

Respectfully submitted,

{Defendant’s Signature (or his attorney),
address, telephone, and fax (if any)}

Interrogatories are written questions served on a party that require him to serve written answers, usually under other (verified). Texas Rule of Civil Procedure 197 institutes this form of written discovery. An interrogatory may inquire whether a party makes a specific legal or factual contention and may ask the responding party to state the legal theories and to describe in general the factual bases for the party’s claims or defenses, but interrogatories may not be used to require the responding party to marshal all of its available proof or the proof the party intends to offer at trial. A response must include the party’s answers to the interrogatories and may include objections and assertions of privilege as required under the rules. A responding party must usually sign the answers under oath. This is known as “verification”, and can be accomplished by taking the responses and answers, along with a verification page, to a notary. The format of a written response to interrogatories may look something like this in some cases (with two commonly asked interrogatories). (A possible sample verification page is also included.):

{Caption: Will be something like ‘Joe Blow, Plaintiff v. John Smith, Defendant’, along with information about the court that the case is in, and the case number. The caption will normally be the same as the caption found at the top of the written discovery request being responded to, so it is probably a safe bet to copy that and put it at the top of the discovery response.}

DEFENDANT’S RESPONSE TO PLAINTIFF’S INTEROGATORIES

To: Plaintiff, {Plaintiff’s name}, by and through his attorney of record, {Name, address, telephone, and fax number of plaintiff’s attorney}

Defendant serves these responses to Plaintiff’s Interrogatories

ANSWERS AND OBJECTIONS TO INTERROGATORIES:

INTERROGATORY 1:

Identify each person answering these interrogatories, supplying information, or assisting in any way with the preparation of the answers to these interrogatories. For each person named, provide the person's address and telephone number.

ANSWER: {Place Answer/Objection/Response to Plaintiff’s Interrogatory Number 1 here.}

INTERROGATORY 2:

Please state your full name, date of birth, driver's license number, social security number, all names used by you in the last ten (10) years, name of spouse, if any, present residential address and all previous addresses within the last ten (10) years, including dates resided at each, and residential telephone numbers.

ANSWER: {Place Answer/Objection/Response to Plaintiff’s Interrogatory Number 2 here.}

Respectfully submitted,

{Defendant’s Signature (or his attorney),
address, telephone, and fax (if any)}

VERIFICATION PAGE

STATE OF TEXAS

COUNTY OF {county where verification occurs}

On this day {name of party responding to interrogatories –defendant in this instance-} appeared before me, the undersigned notary public, and after I administered an oath to him, and upon his oath, he said he read the “DEFENDANT’S RESPONSE TO PLAINTIFF’S INTEROGATORIES” and the facts in it are within his personal knowledge, and are true and correct

{Signature of Defendant}

SWORN TO and SUBSCRIBED before me by {Name of Defendant} on the _____ day of ____________, 200__.

{Signature of Notary}

Notary Public in and for the State of Texas

My commission Expires: ___________

Requests for production are a means of obtaining documents from another party to the case. Texas Rule of Civil Procedure 196 institutes requests for production. A party responding to requests for production will either comply with the document requests, object, or state reasons why he is not or cannot. The format of a written response to requests for production (with a common request for production included) may look something like this in some cases:

{Caption: Will be something like ‘Joe Blow, Plaintiff v. John Smith, Defendant’, along with information about the court that the case is in, and the case number. The caption will normally be the same as the caption found at the top of the written discovery request being responded to, so it is probably a safe bet to copy that and put it at the top of the discovery response.}

DEFENDANT’S RESPONSES TO PLAINTIFF’S FIRST REQUEST FOR PRODUCTION

To: Plaintiff, {Plaintiff’s name}, by and through his attorney of record, {Name, address, telephone, and fax number of plaintiff’s attorney}

Defendant serves these responses to Plaintiff’s requests for admissions.

RESPONSES TO REQUESTS

REQUEST FOR PRODUCTION NO. 1:

True, correct, and legible copies of any and all correspondence, communications, letters, notes of oral communications, and all other documents or writings sent to or received from, or exchanged by and between you and Plaintiff concerning the subject matter of this lawsuit.

RESPONSE: {Possible responses: “After a diligent search, no items have been identified that are responsive to the request”, or, “See attached documents”}

Respectfully submitted,

{Defendant’s signature (or his attorney’s),
address, telephone, and fax (if any)}

A note about post-judgment discovery: If you loose a lawsuit (or take a default judgment), it is common to be served with discovery requests like interrogatories and requests for production regarding your assets so that the plaintiff can attempt to collect on the judgment against you. Answering all discovery is important because if you don’t, it is possible for the opposing party to get the judge in your case to find you in contempt of court. Although debtor’s prison is abolished under the Texas State Constitution, the unscrupulous judgment creditor may try to use post-judgment discovery as a means of getting you put in jail for contempt of court, if you don’t answer the discovery. However, you can avoid this possible negative legal consequence by properly responding to the post-judgment discovery.

The Original Answer

2007-07-17T15:25:00.000-07:00

    Some people who are sued will normally respond by filing an “original answer”. Let’s look at how this is usually handled if someone is sued in a Texas state court. First, the person being sued will usually be served with a citation and a copy of the plaintiff’s original petition. (This is known as “the process”.) The purpose of service of citation is to give the defendant an opportunity to appear in court and defend against the lawsuit. Process may be served by a Sheriff’s Deputy or Constable. It also may be served by a private process server. (See Texas Rule of Civil Procedure 103) Assuming that the Defendant doesn’t attempt some sort of pre-Answer filing, such as a special appearance to challenge personal jurisdiction, or other tactic, then he will probably file an “original answer”. By filing the original answer, the defendant enters an appearance before the court, denies the allegations in the plaintiff’s petition, identifies his defenses, and avoids a default judgment. In state district and county courts in Texas, the defendant normally must file his written answer by 10:00am on the first Monday after the expiration of 20 days from the date the defendant was served with the citation. (See Texas Rule of Civil Procedure 99(b).)
   Among other things, the answer should contain what is known as a “general denial”, which is a statement that defendant “generally denies all the allegations in the plaintiff’s petition.” An effect of filing a general denial is to put at issue everything in the plaintiff’s petition that is not required to be denied under oath or specially denied.
   In some cases in Texas, a general denial may not be sufficient to put all of the plaintiff’s allegations at issue, because some matters must be specifically pleaded and verified by affidavit based on personal knowledge. A general denial also does not include various affirmative defenses that may be available to the defendant in some cases. Texas Rule of Civil Procedure 93 contains a list of defenses, pleas, and other matters that must usually be verified by affidavit. Some matters that may need to be specifically pleaded and verified by affidavit include: An attack on the legal capacity of either the plaintiff to sue or the defendant to be sued; a denial of partnership alleged in a pleading for any party to the suit; a denial that a party is incorporated as alleged; or an allegation that a contract is usurious. (See TRCP 93 for other subjects.)
   If a defendant wants to rely on an affirmative defense, he must also specifically plead it. A general denial will not be sufficient to raise this. (See TRCP 94.) Some affirmative defenses include: Accord and satisfaction; arbitration and award; assumption of the risk; contributory negligence; discharge in bankruptcy; duress; estoppel; fraud; illegality; release; statute of frauds; statute of limitations; or waiver. (See TRCP 94 for many possible affirmative defenses.)
   A defendant should also consider including a request for disclosure in his original answer. This is a basic form of discovery, which the Plaintiff has probably already asked you to provide in his original petition. This can be accomplished by including the following language in your original answer: “Pursuant to Texas Rule of Civil Procedure 194, you are requested to disclose, within 30 days of the service of this request, the information or material described in Rule…{then include what portions of TRCP 194.2 are relevant to your case.}” TRCP 194 requests for disclosure are for matters like the correct names of the parties to the lawsuit (TRCP 194.2(a)), or the name, address, and telephone number of any potential parties (194.2(b)). (Check the text of the rule for more details.)
   A defendant may also have various legal grievances of his own that he can assert a counterclaim or cross claim on. Consult with Texas Rule of Civil Procedure 97 and 38 for some basic information on this issue.
   A defendant could also consider asking for a jury trial, rather than a bench trial, in his original answer.
   The original answer should also include a conclusion, prayer, and signature of the defendant (if the defendant is representing himself).
   A basic original answer may look something like this, in some cases:

{Caption: Use same caption as contained in Plaintiff's Original Petition. It will be something like: Joe Smith, Plaintiff v. John Adams, Defendant, along with court and case number information.}

DEFENDANT’S ORIGINAL ANSWER, REQUEST FOR DISCLOSURE, & REQUEST FOR JURY TRIAL

Defendant, {name of defendant}, files this original answer to plaintiff’s {name of plaintiff} original petition.

General Denial
Defendant generally denies all the allegations in plaintiff’s original petition.
Demand for Jury
Defendant demands a jury trial on all issues and tenders the fee with this answer.
Request for Disclosure
Under the authority of Texas Rule of Civil Procedure 194, defendant requests that plaintiff disclose, within 30 days of the service of this request, the information or material described in Rule 194.2 (a), (b), (c), (d), (e), (f), (g), (h), and (i).
Prayer
For these reasons, defendant asks for the following relief: a judgment that plaintiff take nothing, that the court assess the costs against plaintiff, and that the court award defendant all other relief, in law and in equity, to which defendant is entitled.
Respectfully submitted,

{Defendant Signature, address, and telephone number}