John Henry
Procedural intake for Texas civil litigation
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64 mechanisms · Texas civil litigation

Every case ends on a mechanism. Most files die because nobody went and found it.

Not a theory of the case — a mechanism. A waiver. A mandatory exclusion. A forfeited corporate charter. A turnover statute. Something already sitting in the rules that, applied exactly and proved up on the record, ends the matter or makes it collectible. Each one below carries the case it came from and the signed order that proves it.

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What a mechanism resolves to
Signed order · Williamson County
MechanismTraditional summary judgment
AuthorityTex. R. Civ. P. 166a(c)
Cause no.24-0702-CC5
SignedMarch 7, 2025
Judgment$44,658.57
Fees awarded$28,929.12

Reproduced in full at /orders/

64Mechanisms, each with its authority
7Signed orders, transcribed in full
1,400Matters over twenty years, all in Texas
StatewideWilliamson · Travis · Bexar · DeWitt · Galveston
The premise

What follows is a catalog of the mechanisms I have used, grouped by what they do, each with the case it came from and — where I have it — the signed order, transcribed in full. Twenty years, roughly 1,400 matters, all of them in Texas. I take these as co-counsel or as lead, anywhere in the state — the matters below run from Williamson and Travis County to DeWitt County and to Galveston.

A number of these come from nineteen years of Williamson County litigation for one client's companies. Others come from a San Antonio program of sixty-six collection suits brought in the Bexar County courts against medical practices in a dozen states — where the fight was jurisdiction, service and getting a Texas judgment enforced somewhere else. That is where the volume is, and volume is what teaches you which mechanism fits which file.

Start here

What's stuck?

Pick the one that sounds like your file. It goes straight to the mechanism that answers it — and carries the posture into the intake form so you don't retype it.

I won and can't collectA judgment is a piece of paper until something reaches property.They're moving assetsPost-judgment transfers can be pulled back — and the authority to investigate often ends it.My judgment is in Texas, their money isn'tFull faith and credit. File it there, and it enforces like a local judgment.I can't get them servedRule 106(b) service, on a sworn statement of where they can probably be found.They filed a summary judgment and I have three weeksEvery ground answered, competent evidence attached, objections set for the same hearing.This case should have ended alreadyMost files that should end on a motion never do, because the proof-up is tedious.My case is on the dismissal docketA verified motion filed before the setting is granted far more often than one that argues.There's a hearing I can't coverYour motion, your brief, my argument. I read the file, prepare, and stand up.They sued the wrong entityRule 93 denials must be verified or they are waived.They designated an expert lateExclusion is not discretionary, and the burden is on the party that blew the deadline.

Or read the whole catalog — 64 mechanisms, grouped by what they do →

Contents
IEnding the caseIIControlling the evidenceIIIKeeping the case aliveIVGetting paidVOn the other side of the motionVIWhen the debtor files bankruptcyVIIGetting the defendant into courtVITermsVIISend a file
I

Ending the case

01

Traditional summary judgment

Tex. R. Civ. P. 166a(h)(2)

A traditional summary judgment ends a case when the movant proves every element of its claim with competent evidence and no genuine issue of material fact remains. On a written contract with a liquidated sum, that is usually achievable. In Aramcor, Inc. v. Tri Marsh Retail LLC, Cause No. 24-0702-CC5, the court granted it in full the day of the contested hearing — $44,658.57 in damages plus $28,929.12 in fees.

Used inAramcor, Inc. v. Tri Marsh Retail LLC · Cause No. 24-0702-CC5, County Court at Law No. 5, Williamson County. Granted in full — liquidated damages, fees and post-judgment interest — the day of the contested hearing.
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Signed order granting Aramcor, Inc.'s motion for traditional summary judgment against Tri Marsh Retail LLC, Cause No. 24-0702-CC5, County Court at Law No. 5, Williamson County, Texas, file-stamped March 7, 2025.

Order Granting Plaintiff's Motion for Traditional Summary Judgment · signed March 7, 2025

02

No-evidence summary judgment

Tex. R. Civ. P. 166a(h)(3)

Yes. A no-evidence motion can be aimed at any element on which the opposing party bears the burden of proof — which includes their affirmative defenses. It removes the defense case before the merits are reached. In Aramcor v. Tri Marsh Retail LLC the court granted it against all four pleaded defenses: accord and satisfaction, lack of consideration, lack of contractual privity, and the Statute of Frauds.

Used inAramcor v. Tri Marsh — granted against all four affirmative defenses. Murphy v. Liberty Hill Construction, LLC and McGrath — combined with traditional grounds across all eight causes of action.
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Signed order granting Aramcor, Inc.'s no-evidence motion for summary judgment against all four of Tri Marsh Retail LLC's affirmative defenses, Cause No. 24-0702-CC5, Williamson County, file-stamped March 7, 2025.

Order Granting Plaintiff's No-Evidence Motion for Summary Judgment · signed March 7, 2025

03

Special exceptions on a forfeited charter

Tex. Tax Code § 171.252

No. Under Tex. Tax Code § 171.252, forfeiture of a corporate privilege denies the corporation the right to sue or defend in a Texas court, and its directors and officers become personally liable for certain debts. Attach a Certificate of Account Status from the Comptroller to special exceptions and the entity's answer and counterclaim go with it — leaving only the individual guarantors to be excepted to separately.

Used inRetail tenant and two personal guarantors, County Court at Law No. 4, Williamson County. Paired with a motion in limine excluding any representation about what other tenants in the center would do after the lease was signed.
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04

Arbitration waiver by substantial invocation

Perry Homes v. Cull, 258 S.W.3d 580 (Tex. 2008)

Often not. Under Perry Homes v. Cull, 258 S.W.3d 580 (Tex. 2008), a party waives arbitration by substantially invoking the judicial process, on a totality-of-the-circumstances test. One element has moved: Morgan v. Sundance, Inc., 596 U.S. 411 (2022), holds that waiver of an arbitration right under the Federal Arbitration Act does not require a showing of prejudice. In Murphy v. Liberty Hill Construction, LLC, Cause No. 25-0131-C26 (26th Judicial District Court, Williamson County), the plaintiffs refused a day-one offer to arbitrate, litigated eleven months, then moved to compel. The court found waiver and denied the motion.

Used inMurphy — arbitration was offered on day one with an agreed order to abate already drafted. They refused, litigated eleven months, then moved to compel. Denied.
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First page of the signed Order Granting Final Summary Judgment in Murphy v. Liberty Hill Construction, LLC, Cause No. 25-0131-C26, 26th Judicial District Court, Williamson County, Texas, filed March 4, 2026 — denying the plaintiffs' motion to compel arbitration on waiver and striking their summary judgment evidence.

Order Granting Final Summary Judgment · March 4, 2026 — arbitration denied on waiver

05

Rule 91a — dismissal of a baseless cause of action

Tex. R. Civ. P. 91a

Yes. A cause of action has no basis in law if the allegations, taken as true together with reasonable inferences, do not entitle the claimant to the relief sought; and no basis in fact if no reasonable person could believe them. The court decides on the pleadings alone — no evidence, no affidavits — which makes it the closest thing Texas has to a motion to dismiss on the merits.

Used inAnswered rather than filed, most recently in a Harris County securities case where a Rule 91a motion and then an amended one were aimed at claims pleaded under Texas, Delaware and Minnesota law on attorney-immunity and statutory-aider grounds — a good demonstration that the amended-motion restart in 91a.5(b) moves the hearing by months.
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06

The TCPA motion to dismiss

Tex. Civ. Prac. & Rem. Code ch. 27

By putting the claimant to proof at the outset. A movant shows the legal action is based on or in response to the exercise of the right of free speech, petition or association; the burden then shifts to the claimant to establish by clear and specific evidence a prima facie case for each essential element. Filing suspends all discovery, and denial is immediately appealable.

Used inNot yet, in a matter reproduced in this catalog. The entry is here because the Act is the fastest route out of a communications-based claim in Texas and because two things about it are widely misstated — the automatic denial provision survives, and fees remain mandatory for a successful movant under § 27.009(a)(1) notwithstanding the 2019 amendments.
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07

Motion to transfer venue, and the waiver that ends it

Tex. R. Civ. P. 86, 87; Tex. Civ. Prac. & Rem. Code ch. 15

By written motion filed before or concurrently with any other plea, pleading or motion — except a special appearance. That sequence is the whole rule. One filing out of order and the objection is waived, and it is waived permanently, whatever the merits.

Used inIncluded because the waiver is absolute and unforgiving, and because it is the one procedural trap in Texas practice most often sprung by the routine housekeeping filing that a new lawyer on a file makes in the first week.
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08

Nonsuit, and the three things it does not kill

Tex. R. Civ. P. 162

It can dismiss, but it cannot escape. The right to nonsuit is close to absolute until the plaintiff has introduced all its evidence other than rebuttal. What survives is anything already pending: a claim for affirmative relief, a motion for sanctions, and the costs. The operative word in the rule is pending.

Used inDefensively, as the reason a sanctions motion or counterclaim gets filed on a schedule rather than when it becomes emotionally satisfying. A defendant who waits to see whether the plaintiff will walk has already lost the two remedies that outlive the walk.
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09

Death-penalty discovery sanctions

Tex. R. Civ. P. 215; TransAmerican Natural Gas Corp. v. Powell, 811 S.W.2d 913 (Tex. 1991)

Rarely, and only on a record built for it. A sanction must bear a direct relationship to the offensive conduct — visited on the true offender, not the client for the lawyer’s conduct or the reverse — and it must not be excessive. Merits-preclusive sanctions require flagrant bad faith or callous disregard, and lesser sanctions must ordinarily be tested first.

Used inIncluded because it is the most-sought and least-granted remedy in Texas discovery practice, and because the two-part test explains almost every reversal. A litigant who understands the process requirement asks for something achievable instead.
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10

Motion to compel arbitration

Tex. Civ. Prac. & Rem. Code ch. 171; 9 U.S.C. §§ 1–16; Tex. Civ. Prac. & Rem. Code § 51.016

Move to compel and to stay. It is not an ending so much as a relocation, but for a defendant it is usually the whole object — the case leaves the docket, leaves the jury, and leaves the discovery schedule. Know which act governs before you file, because the Texas act and the Federal Arbitration Act give different appellate rights from the same order.

Used inAustin Gardeners, LLC v. Tuck d/b/a Site Rite Construction Group · Cause No. D-1-GN-24-000256, 201st Judicial District Court, Travis County. Counsel for the defendant. Motion to compel arbitration, abate and original answer filed February 2024, amended and set for hearing that August. The parties announced terms before the hearing was reached, and the court signed an agreed order abating the case pending AAA arbitration, expressly retaining jurisdiction to render judgment on the award under Tex. Civ. Prac. & Rem. Code § 171.081. A construction dispute left the district court and went to the forum the contract named, which is what the motion is for.
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Document
to be added

Agreed Order to Arbitrate · Williamson County · Cause No. 25-0372-C395

II

Controlling the evidence

11

Mandatory exclusion of a late-designated expert

Tex. R. Civ. P. 193.6

Mandatory. Under Tex. R. Civ. P. 193.6, a party who fails to timely designate an expert may not offer that testimony unless the court finds good cause or a lack of unfair surprise or prejudice — and the burden of that showing is on the party who missed the deadline. In Murphy v. Liberty Hill Construction, the plaintiffs' construction expert, designated after discovery closed and a week before the summary judgment hearing, was struck in its entirety.

Used inMurphy — the plaintiffs' construction expert, designated a week before the summary judgment hearing and after discovery had closed, struck in its entirety.
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First page of the signed Order Granting Final Summary Judgment in Murphy v. Liberty Hill Construction, LLC, Cause No. 25-0131-C26, 26th Judicial District Court, Williamson County, Texas, filed March 4, 2026 — denying the plaintiffs' motion to compel arbitration on waiver and striking their summary judgment evidence.

Order Granting Final Summary Judgment · March 4, 2026 — evidence struck, all eight causes dismissed with prejudice

12

Striking a lay declaration for want of foundation

Tex. R. Evid. 701 & 702

Not as to defect. Under Tex. R. Evid. 701, a lay witness may testify to what he perceived, but opinions requiring specialized knowledge belong to a qualified expert under Rule 702. In Murphy v. Liberty Hill Construction, the court held that the homeowner “as a homeowner, cannot provide competent summary judgment evidence concerning the alleged deficiencies in LHC's work and did not provide any foundation for the opinions.”

Used inMurphy — the homeowner's declaration struck; a lay witness cannot opine on construction defects without foundation.
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First page of the signed Order Granting Final Summary Judgment in Murphy v. Liberty Hill Construction, LLC, Cause No. 25-0131-C26, 26th Judicial District Court, Williamson County, Texas, filed March 4, 2026 — denying the plaintiffs' motion to compel arbitration on waiver and striking their summary judgment evidence.

Order Granting Final Summary Judgment · March 4, 2026 — lay declaration struck for want of foundation

13

Striking opposing counsel's own declaration

Tex. R. Civ. P. 166a(j)(4); Tex. R. Evid. 602

Yes, where it is conclusory or contradicts the client's sworn discovery responses. In Aramcor v. Tri Marsh Retail LLC, the court struck the declaration of the defendant's principal as contradicting the company's own initial disclosures and interrogatory answers, and struck counsel's fee declaration as conclusory for providing “no underlying facts with respect to billing entries or the reasonableness or necessity of attorney fees.”

Used inAramcor v. Tri Marsh — struck on the record at the hearing, which removed the response's only evidentiary support before the merits were argued.
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Signed order sustaining Aramcor, Inc.'s objections to Tri Marsh Retail LLC's summary judgment evidence and striking the declarations of Bo Avery and Kevin Wiley, Cause No. 24-0702-CC5, Williamson County, file-stamped March 7, 2025.

Order Granting Plaintiff's Objection to Defendant's Summary Judgment Evidence · March 7, 2025

14

Unauthenticated exhibits and unsworn argument

Tex. R. Evid. 901; Tex. R. Civ. P. 166a(j)(4)

Yes. Documents attached to a response are not evidence until someone with knowledge authenticates them under Tex. R. Evid. 901, and facts asserted only in the body of a brief are argument of counsel, not proof. In Johnson & Farst v. Carnes, 267th Judicial District Court, DeWitt County, the exhibits were struck by separate order, the unanswered grounds were conceded, and judgment was rendered on the whole case in March 2026.

Used inJohnson & Farst v. Carnes · 267th Judicial District Court, DeWitt County. Exhibits struck by separate order, unanswered grounds conceded, affirmative defenses dead for want of proof. Judgment on the whole case, $19,394.12 in fees.
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15

The business-records affidavit that holds

Tex. R. Evid. 902(10), 803(6)

Custodian or other qualified witness, personal knowledge, made at or near the time by someone with knowledge, kept in the regular course of a regularly conducted activity, and making the record was a regular practice. Serve the records and the affidavit on every other party at least fourteen days before trial and they authenticate themselves. On a contract or account case this is the entire evidentiary case.

Used inThroughout a high-volume contract docket where the client’s custodian signed a records affidavit attaching the contract and the full invoice history, with a separate pre-judgment interest calculation. In a defended file in the Bexar County courts the summary judgment motion had four exhibits, and the records affidavit did all the work in three of them.
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16

Required disclosures, and the deadline nobody calendars

Tex. R. Civ. P. 194

Within 30 days after the first answer or general appearance is filed in the case — not after yours. Since the 2021 amendment, disclosures are automatic: a party must provide them without awaiting any discovery request. No objection and no assertion of work product is permitted, and material not disclosed is excluded automatically under Rule 193.6.

Used inEvery matter filed since the amendment. The practical value is on the receiving end: a defendant that has not disclosed the method of calculating its damages by day 30 has given you a Rule 193.6 argument before discovery has begun.
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17

Deemed admissions, and getting them back

Tex. R. Civ. P. 198.2(c), 198.3

They are admitted. Not deemed admitted on motion — admitted, automatically, without any court order, the moment the response deadline passes. Getting them withdrawn requires good cause, no undue prejudice, and that the merits be subserved. Where the admissions would decide the case, the Supreme Court has put a constitutional floor under that test.

Used inOn both sides of the same problem — resisting a merits-preclusive set inherited with a file, and serving requests early in collection matters where a defendant who does not answer has conceded the account, the balance and the absence of any defence.
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18

Quashing a deposition notice

Tex. R. Civ. P. 199.4, 192.6

Move to quash by the third business day after service of the notice, and the deposition is automatically stayed until the motion is determined. That automatic stay is the whole mechanism — it operates without a hearing, without an order, and without the movant having to persuade anyone of anything yet.

Used inIn a defended collection matter in the Bexar County courts, a motion to quash filed in response to a notice served on the client’s corporate representative, with a signed order on the motion in the file — filed alongside the summary judgment practice in the same case rather than instead of it.
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19

Spoliation — and why it is not for the jury

Brookshire Bros., Ltd. v. Aldridge, 438 S.W.3d 9 (Tex. 2014)

Less than people expect, and by a route most get wrong. A spoliation instruction generally requires intent — the subjective purpose of concealing or destroying discoverable evidence. And the trial court, not the jury, decides spoliation, outside the jury’s presence. Putting the destruction story in front of a jury without that ruling is itself reversible.

Used inArgued more often than won, which is the honest description. The value of the entry is the procedural point — a great deal of spoliation practice is conducted in front of juries where it does not belong, and knowing that is worth more than the instruction.
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20

Challenging an expert for reliability

E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549 (Tex. 1995)

By attacking the foundation rather than the conclusion. Robinson gives six non-exclusive factors — testing, subjectivity, peer review, error rate, general acceptance, and non-judicial uses. For experience-based experts the factors often do not fit, and the question becomes whether there is too great an analytical gap between the data and the opinion.

Used inAs the predicate for the exclusion-then-no-evidence sequence that appears elsewhere in this catalog. The order matters: the motion to strike is set and heard on a schedule that makes a continuance costly to the other side, and the dispositive motion follows.
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21

Snapping back privileged material produced by accident

Tex. R. Civ. P. 193.3(d)

Amend within ten days and it is not a waiver. The rule is more forgiving than most people believe, and the reason is where the clock starts: ten days after the producing party actually discovers the production was made, not ten days after the production. The receiving party must then promptly return the material.

Used inIncluded because two things about this rule are almost universally misremembered — that there are two ten-day windows, and that the clock runs from the production. There is one window, and it runs from discovery.
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22

Motion to compel, argued as waiver

Tex. R. Civ. P. 193.2(e), 215.1; Axelson, Inc. v. McIlhany, 798 S.W.2d 550 (Tex. 1990)

Do not argue the objections one at a time. Argue that they were waived. Rule 193.2(e) provides that an objection not asserted in a timely response, or obscured by numerous unfounded objections, is waived unless the court excuses the waiver for good cause. That converts a long hearing about relevance into a short one about dates.

Used inMurphy v. Liberty Hill Construction, LLC and McGrath · Cause No. 25-0131-C26, 26th Judicial District Court, Williamson County. Post-judgment discovery served, nothing returned, and a motion to compel argued on waiver rather than on relevance. The order signed 27 May 2026 recites that the judgment debtors “served no responses, no objections, no privilege log, and no request for an extension,” orders sworn responses within seven days, holds all objections waived, including objections based on privilege, and awards expenses under Rule 215.1(d).
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III

Keeping the case alive

23

Verified motion to retain

Tex. R. Civ. P. 165a

File a verified motion to retain before the dismissal hearing. Under Tex. R. Civ. P. 165a the court must reinstate on a finding that the failure was not intentional or the result of conscious indifference. A motion that is sworn, that recites what has been done and what will be done by a date certain, and that carries a certificate that the other side is unopposed, is granted far more often than one that argues.

Used inTwo Williamson County files drifted onto the dismissal docket after an associate left the firm. Re-retained the day the first notice arrived; verified motion and designation of attorney in charge filed together, unopposed. Both retained. One later settled and paid; the other took a structured settlement.
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24

Summary judgment filed out of time

Tex. R. Civ. P. 166a(b)(3), (d)(1); scheduling orders

Usually yes, and since March 1, 2026 the question has changed shape. The rewritten rule has no leave-of-court mechanism for the motion itself — a traditional motion may be filed at any time after the nonmovant has appeared or answered unless a court order sets a deadline. Lateness is now a scheduling-order problem, not a rule problem, and the remedy is a motion to modify the scheduling order rather than a motion for leave.

Used inRetail tenant matter, County Court at Law No. 4. The 210-day window closed during settlement talks. Leave requested on the record, hearing obtained, case settled and paid by cashier's check before the motion was reached.
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25

Defeating a failure-to-mitigate defense

Tex. Prop. Code § 91.006; Austin Hill Country Realty v. Palisades Plaza, 948 S.W.2d 293 (Tex. 1997)

With the marketing file, not with argument. Texas landlords have a duty to make reasonable efforts to relet, and the tenant bears the burden of proving a failure to mitigate and the resulting reduction in damages. Producing every listing, campaign, showing and replacement lease collapses the defense on documents rather than on credibility.

Used inNon-profit tenant, Williamson County. Answered with commercial listings, six email marketing campaigns, an executed landlord's consent to sublease, and two executed replacement leases for the same suites.
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26

Holding your forum against a special appearance

Tex. R. Civ. P. 120a; In re Laibe Corp., 307 S.W.3d 314 (Tex. 2010); In re Lisa Laser USA, Inc., 310 S.W.3d 880 (Tex. 2010)

Yes, where the parties contracted for it. A special appearance under Tex. R. Civ. P. 120a argues minimum contacts and fair play — but a forum-selection clause is a contractual consent to jurisdiction, and such clauses are presumptively valid in Texas. In a San Antonio collection program against medical practices in a dozen states, nearly every special appearance was answered the same way: with the clause, proved up by a business-records affidavit attaching the signed agreement.

Used inUnited Biologics, LLC d/b/a United Allergy Services, a former client — a San Antonio company’s nationwide collection program run from 2014 to 2017, sixty-six matters brought in the Bexar County courts against medical practices in Arizona, Florida, North Carolina, Georgia, Kentucky, New Mexico, Tennessee, Louisiana, Maryland and Texas. In United Biologics v. Roswell Medical Clinic, Inc., Cause No. 2016CV03161, County Court at Law No. 3, Bexar County, the defendant’s special appearance was answered with the clause and the executed agreement. Same answer in Twin Med Urgent Care, Cause No. 2016CV03165, and William Wallace Anderson, M.D., Cause No. 2016CV05064.
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Document
to be added

Order Denying Special Appearance · Bexar County

27

Substituted service on a defendant who cannot be found

Tex. R. Civ. P. 106(b)

Move for substituted service under Tex. R. Civ. P. 106(b). On a sworn affidavit stating the location where the defendant can probably be found and the specific attempts already made, the court may authorize service by leaving the citation with anyone over sixteen at that location, or in any other manner the affidavit shows will be reasonably effective. In a sixty-six-matter out-of-state collection program this was routine and it is where most defaults are won or lost.

Used inRepeatedly from 2014 to 2017 in the United Biologics program, for a former client, against out-of-state medical practices and their principals — motions and signed orders for substituted service and for service through the Secretary of State, then defaults, then post-judgment discovery and writs of execution. In United Biologics v. Santan Health Services, LLC, Cause No. 2016CV02672, Bexar County, an Arizona defendant was served on its amended petition and took a default judgment of $69,761.43 plus $20,101.70 in pre-judgment interest at 18% post-judgment.
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Full text
on the page

Default Judgment · United Biologics v. Santan Health Services, LLC · Cause No. 2016CV02672

28

Reinstatement after dismissal for want of prosecution

Tex. R. Civ. P. 165a

A verified motion to reinstate, filed within 30 days after the dismissal order is signed, showing that the failure was not intentional or the result of conscious indifference but due to accident or mistake, or otherwise reasonably explained. The same procedure and the same timetable apply to dismissals under the court’s inherent power, which is what most docket-control dismissals actually are.

Used inEllman v. Ellman · Cause No. DC-20-04451, 298th Judicial District Court, Dallas County. Dismissal order signed 21 November 2022; notice received 5 December; agreed motion to reinstate and stay filed 14 December, seeking reinstatement so the court could hold the case pending the third instalment of a settlement due the following February. Reinstated. The useful part is the pairing: reinstating a case you then need held is a different request from reinstating one you intend to try, and asking for both in one motion is what kept the settlement enforceable.
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29

New trial after a default judgment

Craddock v. Sunshine Bus Lines, Inc., 133 S.W.2d 124 (Tex. 1939)

A timely motion for new trial establishing three things: that the failure to answer was not intentional or the result of conscious indifference but due to accident or mistake; that the motion sets up a meritorious defence; and that granting it will occasion no delay or otherwise injure the plaintiff. Meet all three and the trial court has little discretion to refuse.

Used inOn both sides of it. Setting aside a default requires a defendant to explain itself under oath, which is a useful thing to have before it happens — the entries on service and partial default are written from the same experience.
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30

Restricted appeal

Tex. R. App. P. 30, 26.1(c)

Yes, if you did not participate in the hearing that produced it and did not file a post-judgment motion, a request for findings, or a timely notice of appeal. A restricted appeal runs six months from the signing of the judgment. The trade is that the error has to be apparent on the face of the record, because no evidence outside it may be considered.

Used inThe natural sequel to the service and default work in this catalog. The reason those entries dwell on due-diligence affidavits and returns is that a restricted appeal six months later reads nothing else.
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31

Bill of review

Baker v. Goldsmith, 582 S.W.2d 404 (Tex. 1979); Tex. Civ. Prac. & Rem. Code § 16.051

By bill of review, and only on a narrow showing: a meritorious defence or claim, which the petitioner was prevented from asserting by the fraud, accident or wrongful act of an opponent or by official mistake, unmixed with any fault or negligence of the petitioner’s own. Four years from rendition, and available only once plenary power has expired and no other remedy exists.

Used inPrepared rather than filed, more than once — the analysis that shows a bill of review will not succeed is worth as much to a client as the petition, and it is cheaper.
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32

Restarting the appellate clock when notice came late

Tex. R. Civ. P. 306a(4), (5)

The periods restart from the day you found out — but only if you found out more than twenty days after the judgment was signed, only up to a ninety-day outer limit, and only if you prove it in the trial court on a sworn motion. Miss any of those and the deadlines ran without you.

Used inThe unglamorous predicate underneath several of the entries in this category. A motion to reinstate or for new trial filed on day fifty is timely or untimely depending entirely on whether this motion was filed and granted first.
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33

Continuance, and buying time on a summary judgment

Tex. R. Civ. P. 251, 252; Tex. R. Civ. P. 166a(d)(3)

Two different mechanisms that people run together. A trial continuance under Rule 251 requires sufficient cause supported by affidavit, and Rule 252 says exactly what the affidavit must contain. More time on a summary judgment is not a continuance at all any more — since March 2026 it is Rule 166a(d)(3), and the relief menu is different.

Used inA signed order granting continuance of trial in a defended collection matter in the Bexar County courts, obtained while discovery and depositions were still running — the ordinary and unglamorous use, and the one that keeps a case in a posture where it can still be won.
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34

Amending a pleading on the eve of trial

Tex. R. Civ. P. 63; Greenhalgh v. Service Lloyds Ins. Co., 787 S.W.2d 938 (Tex. 1990)

Yes, and leave is close to mandatory. Within seven days of trial an amendment requires leave — and the rule says leave shall be granted unless there is a showing that the filing will operate as a surprise. The burden is on the party resisting, and denials of leave are reversed routinely.

Used inChiefly on the defensive side of it — the objection that an amendment is prejudicial on its face is the one that works, and it requires the resisting party to have thought about what the trial was going to be about before the amendment arrived.
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35

Severance to make a partial judgment final

Tex. R. Civ. P. 41; Guaranty Federal Savings Bank v. Horseshoe Operating Co., 793 S.W.2d 652 (Tex. 1990)

Sever it. A partial judgment is interlocutory — not appealable, and nothing you can abstract or execute on. Severing the disposed claim into its own cause number converts it into a final judgment that can be collected while the rest of the case continues. On a multi-defendant docket, severing each defendant as its judgment comes in turns one stalled action into a series of collectible judgments.

Used inA Travis County receivership docket in which more than twenty separate orders granting severance were signed, one per defendant, carving individual defendants out of a consolidated action so that each judgment became final and independently executable — filed alongside the writs of execution and post-judgment discovery that the severances made possible.
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V

On the other side of the motion

52

Defeating summary judgment

Tex. R. Civ. P. 166a

Raise a genuine issue of material fact on every ground pleaded, with competent evidence, within the response deadline. Filing a motion and defeating one are different skills — the response has to address each ground separately, because a ground left unanswered stands. In Salt & Pepper Restaurants v. Tight Ends Sports Bar & Grill, 56th Judicial District Court, Galveston County, the plaintiff's motion against the defenses and its separate motion on the counterclaims were both denied the same day.

Used inSalt & Pepper Restaurants v. Tight Ends Sports Bar & Grill · 56th Judicial District Court, Galveston County. Plaintiff moved against my client's defenses and, separately, to dispose of the counterclaims outright. Both motions denied the same day.
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53

Verified denial — defect of parties

Tex. R. Civ. P. 93

Rule 93 lists the pleas that must be verified by affidavit or they are waived — among them that there is a defect of parties, that the plaintiff is not entitled to recover in the capacity in which he sues, that the defendant is not liable in the capacity in which he is sued, and denial of the execution or of an account. A general denial does not preserve any of them.

Used inVendor suit, County Court at Law No. 4, Williamson County. Verified answer establishing that the contracts ran to two affiliated operating entities and not to the defendant named.
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54

Dismissal for want of prosecution, on defense

Tex. R. Civ. P. 165a; the court's inherent power

Yes. Rule 165a permits dismissal when a party seeking affirmative relief fails to appear or when the case is not disposed of within the Supreme Court's time standards, and a court also has inherent power to dismiss for want of diligent prosecution. A plaintiff who will not move its own case can be allowed to lose it — the defendant's job is to make sure the docket reflects the inactivity.

Used inInsurer's collection suit, County Court at Law No. 2, Williamson County. Dismissed for want of prosecution; the clerk's sealed notice of the order is in the file. The matter was later reinstated after the plaintiff served disclosures.
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55

Special exceptions — group pleading and fraud particularity

Tex. R. Civ. P. 45, 47, 90, 91; Stone v. Lawyers Title Ins. Corp., 554 S.W.2d 183 (Tex. 1977)

Except to it. A pleading must give fair notice of the claim against this defendant, and fraud must be pleaded with particularity — who said what, to whom, when, and why it was false. A petition that alleges everything against everyone gives no defendant notice of anything, and the remedy is an order to replead.

Used inZhang v. EEE Development, LLC · Cause No. 26-3572-431, 431st Judicial District Court, Denton County. Special exceptions under Rules 90 and 91 to a petition brought by more than thirty plaintiffs, attacking failure to plead fraud with particularity and improper group pleading across the fraud, fraudulent-transfer, unjust enrichment, money had and received and conversion counts, with a request to replead within 21 days.
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56

Opposing a pre-judgment receiver

Tex. Civ. Prac. & Rem. Code ch. 64; Tex. R. Civ. P. 695; Jones v. Strayhorn, 321 S.W.2d 290 (Tex. 1959)

It can, and it should almost never do it. A pre-judgment receivership over an operating company is not a collection device — it is a business-ending event imposed before anyone has proved anything, and the Supreme Court of Texas has called receivership one of the harshest remedies known to the law, available only in extraordinary circumstances where no lesser remedy will serve.

Used inAn application to appoint a receiver over an operating company arrives as an emergency and is argued as a balancing test. It is not one. The answer is almost always the same three moves — the Strayhorn standard, the lesser remedy that is plainly available, and the notice Rule 695 requires — and they are worth having ready before the hearing that will be set on two days’ notice.
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57

Attacking the damages after a post-answer default

Stoner v. Thompson, 578 S.W.2d 679 (Tex. 1979)

No. A post-answer default is not an abandonment of the answer or an admission of anything but the allegations the pleading itself establishes. The plaintiff must still prove its damages with competent evidence, and an uncontested prove-up frequently does not build a record that survives a legal-sufficiency review.

Used inTabers v. Chen · No. 03-26-00151-CV, Court of Appeals for the Third District at Austin. Appellant’s brief filed April 2026 challenging a $185,258.75 damages judgment rendered after an uncontested bench trial — seven issues, six of them asking the court to render a take-nothing judgment, on the legal sufficiency of the damages evidence and of the attorney’s fee award.
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58

Verified denial of a sworn account

Tex. R. Civ. P. 185; Tex. R. Civ. P. 93(10)

With a verified denial, and before that with an attack on whether Rule 185 applies at all. A properly pleaded sworn account is prima facie evidence of the debt, and without a written denial under oath the defendant may not deny the claim or any item in it. A general denial does not touch it.

Used inOn the defensive side of consumer and commercial account suits, where the recurring winner is not the denial but the scope point — a plaintiff who is not the party to the original sale is usually not entitled to Rule 185 at all, and saying so early changes what the case costs.
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VI

When the debtor files bankruptcy

59

Relief from the automatic stay

11 U.S.C. § 362; Fed. R. Bankr. P. 4001

Everything stops. The petition operates as a stay of the commencement or continuation of litigation, of enforcement of judgments, and of any act to obtain possession of estate property — automatically, without an order, the moment it is filed. A creditor that wants to keep going must move for relief, or establish that the stay never applied to what it is doing.

Used inFrom the creditor’s side of it. In AAT Bioquest, Inc. v. Texas Fluorescence Laboratories, Inc., Cause No. D-1-GN-16-001929, 261st Judicial District Court, Travis County, a constable had levied on the debtor’s real property and the sale was noticed for the first Tuesday in May 2017. The debtor filed Chapter 11 before it. Months of execution work stopped on the day of the petition, which is the lesson worth carrying: the stay is automatic and immediate, and the creditor who has just spent the money is the one who learns it.
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60

Assumption of an unexpired lease

11 U.S.C. § 365

By assuming the lease — curing the defaults, compensating the counterparty for actual pecuniary loss, and providing adequate assurance of future performance. For a restaurant, a clinic or a retailer the lease is the business, and the assumption motion is the reorganisation. It also runs on the harshest clock in the Code.

Used inIn re ARGDOWNTOWN, LLC · United States Bankruptcy Court for the Northern District of Texas. Motion to assume an unexpired lease, contested by the counterparty, with two hearing resets before the case resolved by agreement and was dismissed on an agreed order. The lease was the reason the case was filed, which is the ordinary shape of a single-location Chapter 11.
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61

Dismissing a Chapter 11 by agreement

11 U.S.C. § 1112(b)

Yes, and often it should. Where the case has done its work — the stay bought the time, the parties reached terms, the debt was restructured by agreement — an agreed dismissal is faster and far cheaper than confirmation, and it puts the debtor out from under the estate rather than under a plan it then has to perform.

Used inIn re ARGDOWNTOWN, LLC · United States Bankruptcy Court for the Northern District of Texas. Voluntary petition in February 2023; agreed motion to dismiss the following month supported by a principal’s declaration; signed agreed order of dismissal; settlement executed in June 2023, with UCC-3 terminations filed to clear the record.
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Document
to be added

Agreed Order of Dismissal · Bankr. N.D. Tex.

VII

Getting the defendant into court

62

Serving a nonresident through the Secretary of State

Tex. Civ. Prac. & Rem. Code § 17.044(b), § 17.045

Serve the Secretary of State, who forwards process to the nonresident by registered or certified mail and issues a certificate. It is available against a nonresident who engages in business in Texas but maintains no regular place of business and no designated agent here, in a proceeding arising out of that business. What kills these judgments is not the mailing — it is the pleading.

Used inIn a Bexar County collection program run for a former client, repeatedly and as a matter of course — an amended petition to draw the new citation, the transmittal to Service of Process at the Secretary of State with the fee, then the answer deadline calendared from the return receipt. One Arizona defendant served this way took a default judgment of $69,761.43 plus $20,101.70 in pre-judgment interest.
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Full text
on the page

Default Judgment following service through the Secretary of State · Bexar County · Cause No. 2016CV02672

63

When a Texas entity's registered agent cannot be found

Tex. Bus. Orgs. Code §§ 5.251, 5.252, 5.253

The Secretary of State becomes the entity’s agent by operation of law — where the entity fails to appoint or maintain a registered agent, or where the agent cannot with reasonable diligence be found at the registered office. Different statute from the nonresident long-arm, different defendant, same office. Notice on the Secretary is returnable in not less than thirty days.

Used inThe companion route to the nonresident statute in a high-volume docket: Texas defendants whose agents had gone, served through the Secretary after a due-diligence affidavit was obtained, checked and filed. The order of operations — diligence, file, amend, new citation, serve — is the whole mechanism.
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64

Special appearance and the due order of pleading

Tex. R. Civ. P. 120a

By sworn special appearance, filed before any other plea, pleading or motion, and heard and determined before them. The rule is unforgiving about order: every appearance before judgment that does not comply is a general appearance, and a general appearance concedes the jurisdiction the special appearance was filed to contest.

Used inChiefly from the other side of it, answering special appearances in a Bexar County program where the contracts fixed forum in Bexar County — which is the best education in how to file one properly. The recurring failure was order and omission, not the merits.
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A note on judgment

Knowing which mechanism not to use is the same skill.

Over nineteen years there are a handful of files where the right advice was to stop. A restaurant that closed inside a year and left, in my own intake note, “claiming they could not afford to pay rent any longer” — a $140,669.59 demand settled at $70,000 with a full mutual release, thirty thousand under what my client had hoped for, because that was what was actually there. A personal guarantor dismissed without prejudice while judgment was taken against his two entities, because his bankruptcy schedules were sitting in the same file. A $47,940.20 claim with the summary judgment papers already drafted, closed instead on a payment plan with one condition — reopen immediately on default. That was seven years ago and it held.

Every mechanism above will work when it fits. The value is in being told, early and plainly, when the motion will win and the judgment will still be worth nothing.

Terms

Fixed fees, banded by what the motion actually is.

A summary judgment on a signed note with a defined sum is not the same animal as one between partners with competing valuations. So the fee is banded, and you are told which band before you engage — not after. The long version, with what drives each band →

EngagementWhat it looks likeTo filing Flat fee
Tier I — DocumentaryLiquidated sum, signed instrument, no expert, no real fact dispute. A note, a guaranty, a lease balance, a sworn account.2–3 weeks$3,500 – $8,500
Tier II — ContestedLive affirmative defenses, a records custodian to prove up, evidentiary objections to brief, a hearing that will actually be argued.4–6 weeks$15,000 – $25,000
Tier III — TechnicalCompeting valuations, fiduciary duties, multiple movants, expert challenges, partnership or construction facts. The motion that decides the case.6–10 weeks$30,000 – $60,000
Hearing onlyYour motion, your brief, my argument. I read the file, prepare, and stand up.By setting$2,500 – $6,000
Read & opinionSend the file, get a written answer: which mechanism fits, what it is worth, what it costs to get there.Same day where the file arrives before noonNo chargeCurrent offer
A current offer, not a standing rate — it can be withdrawn at any time and this page will say so when it is. The standard fee is $1,500, credited against any engagement that follows. A file already sent is read at the price in force when it arrived.
EnforcementAbstract, writ, turnover, receiver. Quoted on the judgment and the debtor, after a look at what there is to reach.By postureQuoted
For reference — fees courts have found reasonable and awarded

Murphy v. Liberty Hill Construction & McGrathEight causes of action, arbitration waiver, three evidentiary strikes, then a receivership.

$45,777.31

Aramcor, Inc. v. Tri Marsh Retail LLCCAM reconciliation. Opposing declaration struck; judgment granted in full the day of the hearing.

$28,929.12

Johnson & Farst v. CarnesHunting lease. Response struck for want of competent evidence; judgment on the whole case.

$19,394.12

Restaurant tenant · partial defaultDamages proved by affidavit against an out-of-state defendant.

$3,375.00
What this is

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