# John P. Henry — John Henry & Associates, PLLC Full text of every page on https://www.jhenrylaw.com. Reviewed 2026-08-02. Texas trial lawyer, Round Rock. Texas Bar No. 24055655. Each entry below is a procedural mechanism: the governing rule, when it applies, how it is proved up, what defeats it, and the matter it came from. ====================================================================== ## Ending the case ### 01. Traditional summary judgment URL: https://www.jhenrylaw.com/mechanism/traditional-summary-judgment/ Authority: Tex. R. Civ. P. 166a(h)(2) Q: When can a Texas plaintiff win a breach-of-contract case on traditional summary judgment? A: 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. Quoted authority: “The court must grant a traditional motion for summary judgment if the movant shows that, except as to the amount of damages, there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law on the issues expressly set out in the motion.” Source: Tex. R. Civ. P. 166a(h)(2), effective March 1, 2026 When it applies: A signed instrument, a definite sum, and a defendant whose defense is argument rather than evidence. Leases, notes, guaranties, sworn accounts and CAM reconciliations are the natural habitat. The motion is available to a plaintiff on its own claim and to a defendant on an affirmative defense conclusively established. How it is proved up: 1. A business-records affidavit that actually satisfies Tex. R. Evid. 902(10) — custodian, personal knowledge, made at or near the time, kept in the regular course. Most affidavits that fail, fail here. 2. The instrument itself, attached and authenticated, with every amendment and assignment in the chain. 3. A damages calculation a judge can follow line by line without doing arithmetic. If the number cannot be tied to a document, it is not liquidated and the motion is the wrong vehicle. 4. Segregated attorney's fees supported by a declaration that does the Rohrmoos work — hours, rate, task — rather than asserting a total. 5. Objections to the response's evidence filed and set at the same hearing, so the record is clean before the merits are argued. The 2026 rewrite says nothing about objections — no deadline, no requirement that the court rule on them — so the burden of getting a ruling is still entirely yours. 6. For a motion filed on or after March 1, 2026: the title. Rule 166a(b)(2)(A) requires the motion to be titled Traditional, No-Evidence, or Combined, and an oral hearing has to be requested in the title itself. A wrong title is expressly not grounds for denial, but the hearing request is easy to lose. 7. Discovery not already on file must be tendered with the motion, not twenty-one days before a hearing. Rule 166a(j)(3)(A) moved that deadline forward, and it is the one most likely to catch a practitioner working from an old form file. What defeats it: - A scintilla of evidence on any element. The standard is not preponderance; it is whether a fact issue exists at all. - A conclusory or defective business-records affidavit, which takes the entire damages proof with it. - An affirmative defense the movant did not negate. A plaintiff's traditional motion does not dispose of pleaded defenses unless it addresses them, which is why the no-evidence motion travels with it. - Fees left unsegregated between recoverable and unrecoverable claims. Used in: Aramcor, 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. Q: What is the standard for traditional summary judgment in Texas? A: The movant must show there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. Evidence is viewed in the light most favorable to the non-movant, and every reasonable inference is indulged in the non-movant's favor. Q: How is traditional summary judgment different from no-evidence summary judgment? A: A traditional motion carries an affirmative burden — the movant proves its own case with evidence. A no-evidence motion carries no evidentiary burden — it identifies an element the other side cannot support and shifts the burden to them. They are routinely filed together, and the current rule expressly contemplates a combined motion. Q: Which version of Rule 166a applies to my summary judgment motion? A: The one in force when the motion was filed. Rule 166a was rewritten by Misc. Docket No. 26-9012, effective March 1, 2026, and the order provides that the amendments apply only to a motion filed on or after that date. A motion filed before it is still governed by the former rule, so a case pending across the changeover can have one motion under each. Q: Where did Rule 166a(c) go? A: Traditional summary judgment is now defined at Rule 166a(a)(1), its required contents are at 166a(b)(2)(C), and the standard is at 166a(h)(2). The lettering matters more than usual here, because the rewrite reused the old letters for new subjects — 166a(c) is now Clerk and Court Duties Upon Filing. A brief that still cites 166a(c) for the traditional standard is citing a live provision about something else. One trap to know about: the 1990 and 1997 Comments were carried into the rewritten rule unchanged, so the official Comment still cross-references paragraphs (a), (b), (c) and (i) by their former meanings. Following the Comment's own citations lands you in the wrong subsection. Q: Can attorney's fees be awarded on summary judgment in Texas? A: Yes, where a statute or contract provides for them and the proof satisfies Rohrmoos Venture v. UTSW DVA Healthcare. In Aramcor v. Tri Marsh the court awarded $28,929.12 in fees in the same order as the damages. Order on file: Order Granting Plaintiff's Motion for Traditional Summary Judgment — Aramcor, Inc. v. Tri Marsh Retail LLC, County Court at Law No. 5, Williamson County, Texas, Cause No. 24-0702-CC5, signed March 7, 2025. Full text of the order: CAUSE NO. 24-0702-CC5 ARAMCOR, INC., Plaintiff v. TRI MARSH RETAIL LLC, Defendant IN THE COUNTY COURT AT LAW NO. 5 WILLIAMSON COUNTY, TEXAS ORDER GRANTING PLAINTIFF'S MOTION FOR TRADITIONAL SUMMARY JUDGMENT On this day, the Court heard Aramcor, Inc.'s motion for traditional summary judgment on its breach of contract claim against Tri Marsh Retail LLC. After considering the motion and Tri Marsh's response, the Court GRANTS Aramcor's motion for summary judgment. Aramcor is awarded judgment for liquidated damages in the amount of $44,658.57, attorney's fees in the amount of $28,929.12 and post-judgment interest. This disposes of all claims and all parties and is a final appealable judgment. SIGNED on March 7, 2025. _______________________________ PRESIDING JUDGE ---------------------------------------------------------------------- ### 02. No-evidence summary judgment URL: https://www.jhenrylaw.com/mechanism/no-evidence-summary-judgment/ Authority: Tex. R. Civ. P. 166a(h)(3) Q: Can a no-evidence summary judgment be used offensively against affirmative defenses in Texas? A: 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. Quoted authority: “The court must grant a no-evidence motion unless the respondent produces summary judgment evidence raising a genuine issue of material fact.” Source: Tex. R. Civ. P. 166a(h)(3), effective March 1, 2026 When it applies: After an adequate time for discovery, against any claim or defense the other side must prove. Most useful where a defendant has pleaded a stack of boilerplate affirmative defenses it never intended to support with evidence — which is most defendants. How it is proved up: 1. Specify the elements. A motion that says 'there is no evidence of Defendant's defenses' is a general no-evidence motion and is void. Each defense gets its own heading and each element is named. 2. Establish that adequate time for discovery has passed — the level of the discovery control plan, the discovery deadline, and what was actually served and answered. 3. File no evidence with it. Attaching evidence to a no-evidence motion invites the argument that the movant assumed a burden it does not have. Keep the traditional motion and its evidence in a separate instrument. 4. Pair it with objections to whatever the response attaches, so the evidence that would raise the scintilla is struck before the court weighs it. What defeats it: - More than a scintilla on the challenged element. The bar is low, so the motion works best against defenses that were pleaded reflexively and never developed. - A motion that fails to identify elements with specificity. - A showing under Rule 166a(d)(3) that the respondent cannot yet present facts essential to its opposition. That provision replaced the old 166a(g) continuance, and the relief menu is different — the court may extend the response deadline, deny the motion without prejudice to permit further discovery, or enter another appropriate order. It no longer uses the word continuance. Used in: Aramcor 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. Q: Can a plaintiff file a no-evidence motion for summary judgment in Texas? A: Yes. The rule turns on who carries the burden of proof, not on who filed the suit. A plaintiff may move on the elements of a defendant's affirmative defenses or counterclaims. Q: What is 'adequate time for discovery' for a no-evidence motion in Texas? A: There is no fixed period. Courts look to the nature of the case, the discovery control plan, the discovery already conducted, the deadlines, and whether the responding party diligently pursued discovery. Reciting the actual discovery history in the motion is what makes the showing. Q: Does a no-evidence motion have to identify specific elements? A: Yes. Rule 166a(b)(2)(D) requires the motion to state the elements as to which there is no evidence — the specificity requirement that used to sit in 166a(i) is now express in the text. A general no-evidence challenge is insufficient and is subject to being treated as void. Q: Is a no-evidence motion still filed under Rule 166a(i)? A: No, and this is the citation most likely to go wrong. Since the March 1, 2026 rewrite the no-evidence motion is defined at 166a(a)(2), its contents are governed by 166a(b)(2)(D), its timing by 166a(b)(3)(B), and the standard by 166a(h)(3). Subsection (i) still exists — it now means Ruling, and requires the court to sign a written ruling within ninety days of the hearing or submission date. A stale cite to 166a(i) does not dangle; it points at a real provision about something else. Motions filed before March 1, 2026 remain governed by the former rule. Order on file: Order Granting Plaintiff's Motion for No-Evidence Summary Judgment — Aramcor, Inc. v. Tri Marsh Retail LLC, County Court at Law No. 5, Williamson County, Texas, Cause No. 24-0702-CC5, signed March 7, 2025. Full text of the order: CAUSE NO. 24-0702-CC5 ARAMCOR, INC., Plaintiff v. TRI MARSH RETAIL LLC, Defendant IN THE COUNTY COURT AT LAW NO. 5 WILLIAMSON COUNTY, TEXAS ORDER GRANTING PLAINTIFF'S MOTION FOR NO-EVIDENCE SUMMARY JUDGMENT On this day, the Court heard Aramcor, Inc.'s motion for no-evidence summary judgment on Tri Marsh Retail LLC's affirmative defenses of accord and satisfaction, lack of consideration, lack of contractual privity, and the Statute of Frauds. After considering the motion and Tri Marsh's response, the Court GRANTS Aramcor's motion and finds that there is no evidence to support Tri Marsh Retail LLC's affirmative defenses of accord and satisfaction, lack of consideration, lack of contractual privity, and Statute of Frauds. SIGNED on March 7, 2025. _______________________________ PRESIDING JUDGE ---------------------------------------------------------------------- ### 03. Special exceptions on a forfeited charter URL: https://www.jhenrylaw.com/mechanism/forfeited-charter-special-exceptions/ Authority: Tex. Tax Code § 171.252 Q: Can a Texas corporation whose charter is forfeited for franchise tax still sue or defend a lawsuit? A: 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. Quoted authority: “If the corporate privileges of a corporation are forfeited under this subchapter … the corporation shall be denied the right to sue or defend in a court of this state.” Source: Tex. Tax Code § 171.252 When it applies: Any Texas entity opponent — most often a defunct operating company still nominally defending a collection suit. The first thing to do in any commercial case is pull the opposing entity's franchise tax status. It is free, it takes two minutes, and it is checked far less often than it should be. How it is proved up: 1. The Comptroller's Certificate of Account Status, and the Secretary of State's filing history showing the forfeiture date, attached to the exceptions. 2. Match the forfeiture date against the date the answer was filed. Whether the pleading was filed before or after the forfeiture changes the relief. 3. Except separately to the individual guarantors — want of privity as to the entity's contracts, want of individual damages — so the case narrows on both fronts at the same hearing. 4. Pair with a motion in limine on any oral representation the guarantors will want to describe at trial. What defeats it: - Revival. The entity can pay the tax, obtain a certificate of revivor and cure the forfeiture, so the mechanism buys leverage and time rather than an automatic dismissal. - The relief is not identical to a default; the court may abate to allow revival rather than strike. - It reaches the entity only. Individual defendants are unaffected and need their own exceptions. Used in: Retail 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. Q: How do I check whether a Texas company's charter is forfeited? A: Request a Certificate of Account Status from the Texas Comptroller and check the Secretary of State's filing history. Both are public and both are quick. Franchise-tax forfeiture and SOS involuntary termination are different events with different consequences, so check for both. Q: What happens to a lawsuit filed by a corporation that later forfeits its charter? A: Its right to prosecute the suit is denied while the forfeiture stands. Courts commonly abate to permit revival rather than dismiss outright, which is why the mechanism is best used early, when the delay itself has settlement value. Q: Are officers personally liable when a Texas corporation forfeits its charter? A: Tex. Tax Code § 171.255 imposes personal liability on directors and officers for debts of the corporation created or incurred after the date the report or tax was due and before the privileges are revived, subject to the statute's exceptions. ---------------------------------------------------------------------- ### 04. Arbitration waiver by substantial invocation URL: https://www.jhenrylaw.com/mechanism/arbitration-waiver-substantial-invocation/ Authority: Perry Homes v. Cull, 258 S.W.3d 580 (Tex. 2008) Q: Can the other side still compel arbitration after litigating the case in Texas for months? A: 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. Quoted authority: “The Court finds that Plaintiffs substantially invoked the judicial process to LHC's detriment and prejudice and have waived their right to arbitration. The Plaintiffs' motion to compel arbitration is DENIED.” Source: Order Granting Final Summary Judgment, Cause No. 25-0131-C26, March 4, 2026 When it applies: Whenever an opponent with an arbitration clause chooses the courthouse first and reaches for the clause later — nearly always when discovery has gone badly or a dispositive motion is set. Waiver is decided on the totality of the circumstances, and the circumstances are their own docket. How it is proved up: 1. Offer arbitration in writing at the outset, with an agreed order to abate already drafted and attached. The refusal is the first and best exhibit, and it only exists if it was created on day one. 2. Build the record continuously: every motion they filed, every deposition they noticed, every discovery request they served, every setting they obtained, with dates. 3. Quantify the detriment — fees and expenses incurred, discovery they obtained that arbitration would not have given them, and the delay itself. 4. Preserve the objection in every responsive filing so the waiver argument is not itself waived. What defeats it: - A short delay with little merits activity. Waiver requires substantial invocation, and courts start from a strong presumption against it. - No showing of prejudice. Expense and delay alone are frequently held insufficient without more. - A clause delegating arbitrability to the arbitrator, which can move the waiver question out of court — though litigation-conduct waiver is generally decided by the court. Used in: Murphy — arbitration was offered on day one with an agreed order to abate already drafted. They refused, litigated eleven months, then moved to compel. Denied. Q: What is 'substantial invocation of the judicial process' in Texas? A: Conduct inconsistent with an intent to arbitrate — filing and pursuing merits motions, conducting full discovery, obtaining trial settings, seeking relief the arbitrator could have given. Perry Homes directs a totality-of-the-circumstances review rather than a checklist. Q: Does delay alone waive the right to arbitrate? A: No. Texas courts require both substantial invocation and resulting prejudice to the opposing party. Delay is one factor among several, and it is rarely sufficient standing alone. Q: How do you preserve a waiver argument against a late motion to compel arbitration? A: Document the offer and the refusal in writing at the outset, object in every responsive filing, and keep a running record of the opponent's litigation conduct and of the fees and discovery burden it caused. The waiver is proved from their docket, not from argument. Order on file: Order Granting Final Summary Judgment — Gregg Murphy and Dayla Murphy v. Liberty Hill Construction, LLC and Thomas McGrath, 26th Judicial District Court, Williamson County, Texas, Cause No. 25-0131-C26, signed March 4, 2026. Full text of the order: CAUSE NO. 25-0131-C26 GREGG MURPHY and DAYLA MURPHY, Plaintiffs v. LIBERTY HILL CONSTRUCTION, LLC and THOMAS MCGRATH, Defendants IN THE DISTRICT COURT OF WILLIAMSON COUNTY, TEXAS 26th JUDICIAL DISTRICT ORDER GRANTING FINAL SUMMARY JUDGMENT On January 21, 2026, the Court heard Plaintiffs' motion to compel arbitration. The Court considered the Plaintiffs' motion and the attached declaration of Gregg Murphy in support. The Court also considered Liberty Hill Construction's ("LHC") response and the attached declaration of Thomas McGrath in support. The Court finds that Plaintiffs substantially invoked the judicial process to LHC's detriment and prejudice and have waived their right to arbitration. The Plaintiffs' motion to compel arbitration is DENIED. The Court also heard LHC's Objections to Plaintiffs' Summary Judgment Evidence. The Court SUSTAINS the objections and STRIKES all documents attached to the Gregg Murphy and Johnny Ramirez Declarations as unauthenticated hearsay. The Court also SUSTAINS the Defendants' objections to the Gregg Murphy Declaration. Gregg Murphy, 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. The Court also SUSTAINS Defendants' objection to the admission of the Johnny Ramirez Declaration in its entirety where it was untimely under the mandatory exclusion requirement of […] [Page 1 ends. Transcript continues on the following page of the order.] ---------------------------------------------------------------------- ### 05. Rule 91a — dismissal of a baseless cause of action URL: https://www.jhenrylaw.com/mechanism/rule-91a-dismissal/ Authority: Tex. R. Civ. P. 91a Q: Can a Texas court dismiss a claim on the pleadings before any discovery? A: 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. Quoted authority: “[A] cause of action has no basis in law if the allegations, taken as true, together with inferences reasonably drawn from them, do not entitle the claimant to the relief sought. A cause of action has no basis in fact if no reasonable person could believe the facts pleaded.” Source: Tex. R. Civ. P. 91a.1 When it applies: The count pleaded reflexively — a fraud claim that is really a contract claim, a conspiracy count with no underlying tort, a statutory claim under a statute that does not provide a private right of action. Also the claim barred on the face of the pleading by limitations or immunity. How it is proved up: 1. Diary all four dates. File within 60 days after the first pleading containing the challenged claim is served on you, and at least 21 days before the hearing; the response is due 7 days before; the court must rule within 45 days of filing. 2. Attack causes of action, not allegations. Rule 91a dismisses claims, and a motion aimed at paragraphs is a special exception wearing the wrong label. 3. Identify the missing element rather than disputing the facts. The court must take the pleading as true, so the argument is that even then nothing follows. 4. Consider amending your own motion carefully — an amended motion under 91a.5(b) restarts every one of those periods, which is sometimes useful and sometimes fatal. 5. Ask for fees knowing they are discretionary and must rest on evidence. H.B. 3300 changed 91a.7 from 'must award' to 'may award', effective 1 September 2019 for actions commenced on or after that date. What defeats it: - A nonsuit or amendment before the hearing, which the rule permits and which mostly costs the movant the filing fee. - A claim that is merely thin. The standard is no basis in law or fact, not weak. - Any need for evidence, which puts the matter in summary judgment territory instead. - Missing the 60 days, after which the motion is simply unavailable on that pleading. Used in: Answered 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. Q: How long do you have to file a Rule 91a motion in Texas? A: Within 60 days after the first pleading containing the challenged cause of action is served on the movant, and at least 21 days before the motion is heard. Tex. R. Civ. P. 91a.3. Q: Can evidence be considered on a Rule 91a motion? A: No. The court decides the motion based solely on the pleading of the cause of action, together with any pleading exhibits permitted by Rule 59. Q: Are attorney's fees mandatory under Rule 91a? A: Not since 2019. House Bill 3300 amended Tex. Civ. Prac. & Rem. Code § 30.021 and Rule 91a.7 so that the court may, rather than must, award the prevailing party costs and reasonable fees, and any award must be based on evidence. ---------------------------------------------------------------------- ### 06. The TCPA motion to dismiss URL: https://www.jhenrylaw.com/mechanism/tcpa-motion-to-dismiss/ Authority: Tex. Civ. Prac. & Rem. Code ch. 27 Q: How does the Texas Citizens Participation Act end a lawsuit? A: 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. Quoted authority: “[A] party may file a motion to dismiss the legal action … not later than the 60th day after the date of service of the legal action.” Source: Tex. Civ. Prac. & Rem. Code § 27.003(b) When it applies: Defamation and business-disparagement suits, claims arising from statements to regulators or in other litigation, tortious-interference claims built on communications. The 2019 amendments narrowed the scope considerably, so the first question is whether the Act reaches the claim at all. How it is proved up: 1. Move within 60 days of service of the legal action. The period is extendable by agreement or on a showing of good cause, and not otherwise. 2. Establish the Act applies before arguing the merits. After House Bill 2730 the definitions are narrower and the § 27.010 exemptions are broader, and most denials now turn on applicability. 3. Use the discovery stay. Filing suspends discovery until the ruling, which is much of the practical value on a case that would otherwise be expensive early. 4. Do not rely on the hearing date alone. The court must rule within 30 days after the hearing closes, and § 27.008(a) still provides that the motion is denied by operation of law if it does not — that provision survived the 2019 amendments, contrary to a widespread belief. 5. Plead the affirmative defense route in the alternative. Under § 27.005(d) the movant still wins by establishing an affirmative defense or entitlement to judgment as a matter of law. What defeats it: - An exemption under § 27.010, which is where most modern TCPA motions die. - Clear and specific evidence of a prima facie case on every element, which is a real but not insurmountable burden. - A claim that is not based on or in response to protected activity, however much communication was involved. - The 60 days. Used in: Not 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. Q: How long do you have to file a TCPA motion to dismiss in Texas? A: Not later than the 60th day after the date of service of the legal action, under Tex. Civ. Prac. & Rem. Code § 27.003(b). The deadline may be extended by agreement or on a showing of good cause. Q: Does filing a TCPA motion stop discovery? A: Yes. Section 27.003(c) suspends all discovery in the legal action until the court rules on the motion, subject to the limited discovery a court may allow under § 27.006(b). Q: Are attorney's fees mandatory under the TCPA? A: For a successful movant, yes. Section 27.009(a)(1) provides that the court shall award court costs and reasonable attorney's fees. Sanctions are discretionary. The 2019 amendments narrowed the Act's scope but did not make the fee award discretionary. ---------------------------------------------------------------------- ### 07. Motion to transfer venue, and the waiver that ends it URL: https://www.jhenrylaw.com/mechanism/motion-to-transfer-venue/ Authority: Tex. R. Civ. P. 86, 87; Tex. Civ. Prac. & Rem. Code ch. 15 Q: How do you move a Texas lawsuit to the right county? A: 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. Quoted authority: “An objection to improper venue is waived if not made by written motion filed prior to or concurrently with any other plea, pleading or motion except a special appearance motion provided for in Rule 120a.” Source: Tex. R. Civ. P. 86.1 When it applies: The suit filed where the plaintiff’s lawyer is rather than where anything happened, and the case that belongs in a mandatory-venue county under subchapter B of chapter 15. How it is proved up: 1. File it first, or at the same time as the answer. An agreed scheduling order, an unopposed extension or a Rule 11 letter filed before it will end the objection. 2. Specifically deny the plaintiff’s venue facts. A general denial of venue does not join issue and leaves the plaintiff’s pleaded facts taken as true. 3. Plead the county of proper venue and the facts supporting it, and identify the mandatory provision if there is one. 4. Work the Rule 87 calendar: 45 days’ notice of hearing, opposing affidavits 30 days before, reply and additional affidavits 7 days before. The motion itself need not be verified. 5. Cite the statute rather than the rule for mandatory venue. Rule 87.2(a) still refers to sections 15.011 through 15.017, but subchapter B now runs through § 15.020. What defeats it: - Anything filed first. - Prima facie proof of venue by the plaintiff, which shifts the practical burden. - A permissive-venue provision that makes the plaintiff’s county proper even if another is more convenient — venue is not forum non conveniens. - A valid forum-selection clause, which is enforced by motion to dismiss rather than by transfer. Used in: Included 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. Q: When must a motion to transfer venue be filed in Texas? A: Before or concurrently with any other plea, pleading or motion, except a special appearance under Rule 120a. Filing anything else first waives the venue objection. Q: Does a motion to transfer venue have to be verified in Texas? A: No. Rule 87 does not require verification of the motion, though affidavits are used to support and oppose the venue facts. Q: What are the Rule 87 deadlines? A: 45 days' notice of the hearing, opposing affidavits and response at least 30 days before the hearing, and reply plus additional affidavits at least 7 days before. ---------------------------------------------------------------------- ### 08. Nonsuit, and the three things it does not kill URL: https://www.jhenrylaw.com/mechanism/nonsuit-and-what-survives-it/ Authority: Tex. R. Civ. P. 162 Q: Can a Texas plaintiff dismiss its own case to avoid a ruling? A: 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. Quoted authority: “[A] dismissal … shall not prejudice the right of an adverse party to be heard on a pending claim for affirmative relief or excuse the payment of all costs taxed by the clerk. A dismissal … shall have no effect on any motion for sanctions, attorney’s fees or other costs, pending at the time of dismissal.” Source: Tex. R. Civ. P. 162 When it applies: The plaintiff losing interest, the plaintiff who has read your summary judgment motion, the plaintiff whose expert just fell apart. Watch for the nonsuit filed the week before a dispositive hearing — it is a signal, and it is a deadline. How it is proved up: 1. File the counterclaim for affirmative relief early, not when you sense the nonsuit coming. A claim seeking relief independent of the plaintiff’s success survives; a defensive plea does not. 2. File the sanctions motion before the nonsuit, not after. The rule preserves motions pending at the time of dismissal, and a motion filed the next day is not one. 3. Understand what does not survive: your pending no-evidence motion disappears with the claim it attacked, because there is no longer a cause of action to test. 4. Take the costs. They are preserved expressly and they are rarely asked for. 5. Consider that a nonsuit without prejudice permits refiling within limitations, so the question is often whether to insist on a dismissal with prejudice as part of a resolution. What defeats it: - Nothing, as to the nonsuit itself — the right is the plaintiff’s and the trial court has no discretion to refuse it, though the order is ministerial and the dismissal takes effect when filed. - A counterclaim that is really a denial dressed up, which is not a claim for affirmative relief. - Sanctions conduct that has not yet been put before the court in a motion. Used in: Defensively, 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. Q: Can a Texas plaintiff nonsuit at any time? A: At any time before the plaintiff has introduced all of its evidence other than rebuttal evidence. The right is substantially absolute and the trial court's signing of the order is ministerial. Q: Does a nonsuit defeat a pending counterclaim? A: No, where the counterclaim is a claim for affirmative relief. Rule 162 preserves the adverse party's right to be heard on a pending claim for affirmative relief. Q: Does a nonsuit moot a pending motion for sanctions? A: No. Rule 162 provides that a dismissal has no effect on any motion for sanctions, attorney's fees or other costs pending at the time of dismissal. ---------------------------------------------------------------------- ### 09. Death-penalty discovery sanctions URL: https://www.jhenrylaw.com/mechanism/death-penalty-discovery-sanctions/ Authority: Tex. R. Civ. P. 215; TransAmerican Natural Gas Corp. v. Powell, 811 S.W.2d 913 (Tex. 1991) Q: When can a Texas court strike pleadings for discovery abuse? A: 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. Quoted authority: “[T]he sanctions the trial court imposes must relate directly to the abuse found … the punishment should fit the crime … [and] a sanction imposed for discovery abuse should be no more severe than necessary to satisfy its legitimate purposes.” Source: TransAmerican Natural Gas Corp. v. Powell, 811 S.W.2d 913, 917 (Tex. 1991) When it applies: The party that will not answer, will not appear, will not produce, and has already been ordered to. Also, from the other side, the sanction order that went too far and is the strongest issue on appeal. How it is proved up: 1. Build the record of lesser sanctions before you ask for the ultimate one. The court must ordinarily test lesser sanctions and explain on the record why they would not promote compliance — and an order that does not is reversed. 2. Establish who is responsible. If the conduct is counsel’s, say so and ask for a sanction that lands there; a party punished for its lawyer’s conduct is the classic reversal. 3. Show the relationship between the abuse and the relief. Striking a defense has to connect to the discovery that was withheld about that defense. 4. Ask for findings. A sanctions order with findings survives review far better than one without. 5. If you are defending, the absence of that record is the appeal. Most reversals are about process rather than about whether the conduct was bad. What defeats it: - A record with no lesser sanctions tried and no explanation of why they would not work. - A sanction visited on the wrong person. - Conduct that is careless rather than in flagrant bad faith or callous disregard. - A sanction that is disproportionate to what was withheld. Used in: Included 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. Q: What is the TransAmerican test for discovery sanctions? A: A direct relationship between the offensive conduct and the sanction, so that the sanction is visited on the true offender; and that the sanction not be excessive — no more severe than necessary to satisfy its legitimate purposes. Q: Can a Texas court strike a party's pleadings for discovery abuse? A: Yes, but merits-preclusive sanctions are reserved for flagrant bad faith or callous disregard of the responsibilities of discovery, and the court must ordinarily test lesser sanctions first. Q: Can a client be sanctioned for its lawyer's discovery conduct? A: Only where the record shows the party is responsible. TransAmerican requires the sanction to be visited on the offender, and courts must determine whether the fault lies with the party, the attorney, or both. ---------------------------------------------------------------------- ### 10. Motion to compel arbitration URL: https://www.jhenrylaw.com/mechanism/motion-to-compel-arbitration/ Authority: Tex. Civ. Prac. & Rem. Code ch. 171; 9 U.S.C. §§ 1–16; Tex. Civ. Prac. & Rem. Code § 51.016 Q: How do you get a Texas lawsuit sent to arbitration? A: 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. Quoted authority: “In a matter subject to the Federal Arbitration Act … a party may take an appeal or writ of error to the court of appeals from the judgment or interlocutory order of a district court, county court at law, county court, or statutory probate court under the same circumstances that an appeal from a federal district court’s order or decision would be permitted by 9 U.S.C. Section 16.” Source: Tex. Civ. Prac. & Rem. Code § 51.016 When it applies: Any contract with an arbitration clause, which now means most commercial agreements, most employment agreements and a great many consumer ones. Move early — the right is waivable by conduct. How it is proved up: 1. Prove a valid agreement and that the claims fall within it. Those are the only two questions on the motion, and the second is decided by comparing the factual allegations against the clause, not the legal theories pleaded. 2. Decide which act governs and say so. Under the Texas act § 171.098 permits appeal from an order denying an application to compel; under the FAA, § 51.016 routes you through 9 U.S.C. § 16. Neither permits appeal from an order compelling arbitration. 3. Move before you litigate. Substantial invocation of the judicial process waives arbitration, and the clock on that starts with your first substantive filing. 4. Ask for the stay as well as the order compelling. Without it the case sits on the docket and turns up on a dismissal list a year later. 5. Then keep the case alive. A case sent to arbitration and forgotten gets dismissed for want of prosecution, and the court needs to exist to confirm the award. What defeats it: - Substantial invocation of the judicial process — the mirror image of this mechanism, and the reason to move first and answer second. - No agreement, or a non-signatory who cannot be bound and has not sought the contract’s benefits. - Claims outside the scope of a narrowly drafted clause. - Unconscionability or a clause that operates to waive substantive statutory rights. Used in: Austin 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. Q: Can you appeal an order compelling arbitration in Texas? A: Generally no, under either act. Section 171.098 of the Texas act permits appeal from an order denying an application to compel or granting a stay of arbitration, and § 51.016 routes FAA matters through 9 U.S.C. § 16, which likewise permits appeal from orders refusing arbitration rather than ordering it. Q: How is arbitration waived in Texas? A: By substantially invoking the judicial process to the other party’s detriment or prejudice. Filing dispositive motions, taking merits discovery and going to the eve of trial are the conduct courts look at. Q: What happens to the lawsuit after arbitration is compelled? A: It is stayed rather than dismissed, so that the court retains jurisdiction to confirm, modify or vacate the award under Tex. Civ. Prac. & Rem. Code § 171.087 and following. Keeping the stayed case on the docket matters. Order on file: Agreed Order to Abate — Austin Gardeners, LLC v. Kenneth Tuck d/b/a Site Rite Construction Group, 201st Judicial District Court, Travis County, Texas, Cause No. D-1-GN-24-000256, signed August 29, 2024. Full text of the order: CAUSE NO. D-1-GN-24-000256 AUSTIN GARDENERS, LLC, Plaintiff v. KENNETH TUCK d/b/a SITE RITE CONSTRUCTION GROUP, Defendant IN THE DISTRICT COURT TRAVIS COUNTY, TEXAS 201st JUDICIAL DISTRICT AGREED ORDER TO ABATE On August 22, 2024, Defendant's Amended Motion to Compel Arbitration and Plea in Abatement was set for hearing. Prior to the hearing, the parties announced that they had reached an agreement to mediate this matter and to proceed with AAA arbitration if mediation is unsuccessful. The parties agree to mediate no later than October 25, 2024. The Court orders that this matter is abated during the pendency of AAA Arbitration Case No. 01-24-0006-7102. The Court retains jurisdiction to render judgment on any arbitration award pursuant to Texas Civil Practice & Remedies Code §171.081. _______________________________ JUDGE PRESIDING MAYA GUERRA GAMBLE 459th DISTRICT COURT [Page 2] AGREED: _______________________________ Tom Murphy Attorney for Plaintiff Austin Gardeners _______________________________ John Henry Attorney for Defendant Ken Tuck ---------------------------------------------------------------------- ## Controlling the evidence ### 11. Mandatory exclusion of a late-designated expert URL: https://www.jhenrylaw.com/mechanism/late-designated-expert-exclusion-193-6/ Authority: Tex. R. Civ. P. 193.6 Q: Is exclusion of a late-designated expert mandatory or discretionary in Texas state court? A: 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. Quoted authority: “A party who fails to make, amend, or supplement a discovery response in a timely manner may not introduce in evidence the material or information that was not timely disclosed … unless the court finds that there was good cause, or the failure … will not unfairly surprise or unfairly prejudice the other parties.” Source: Tex. R. Civ. P. 193.6 When it applies: Any untimely designation, supplementation or disclosure — expert or fact witness. It is at its most powerful where the excluded testimony is the only proof of an element, because exclusion then converts directly into a no-evidence summary judgment. How it is proved up: 1. Fix the deadline on the record: the discovery control plan level, the scheduling order, and the computation under Rule 195.2 from the trial setting. 2. Establish the designation date from the certificate of service, not from when it arrived. 3. Put the burden where the rule puts it. Do not argue prejudice first — say that the rule excludes, and that the burden of the exception is theirs. 4. Move to strike in a separate instrument and obtain a separate order, so exclusion survives independent of the summary judgment ruling. 5. Then file the no-evidence motion on the element the excluded expert was the only support for. What defeats it: - A good-cause showing, or a genuine absence of surprise — for example where the expert had already been deposed or identified in another form. - A continuance, which can cure the prejudice and is the response a well-advised opponent asks for. - Waiver by the movant: taking the expert's deposition without objection undercuts the surprise argument. Used in: Murphy — the plaintiffs' construction expert, designated a week before the summary judgment hearing and after discovery had closed, struck in its entirety. Q: Who has the burden to show good cause under Rule 193.6? A: The party who failed to timely designate. The rule is written as an exclusion with narrow exceptions, and the burden of establishing an exception rests on the party seeking to escape it. Q: Can a late-designated expert be cured by a continuance? A: Sometimes. A continuance can eliminate unfair surprise and prejudice, and courts have discretion to grant one. That is why the motion to strike should be set and heard on a schedule that makes a continuance costly to the other side. Q: What happens if the excluded expert was the only evidence on an element? A: The exclusion becomes dispositive. The usual sequence is to obtain the order striking the testimony and then move for no-evidence summary judgment under Rule 166a(h)(3) on the element the testimony was offered to prove. Order on file: Order Granting Final Summary Judgment — Gregg Murphy and Dayla Murphy v. Liberty Hill Construction, LLC and Thomas McGrath, 26th Judicial District Court, Williamson County, Texas, Cause No. 25-0131-C26, signed March 4, 2026. Full text of the order: CAUSE NO. 25-0131-C26 GREGG MURPHY and DAYLA MURPHY, Plaintiffs v. LIBERTY HILL CONSTRUCTION, LLC and THOMAS MCGRATH, Defendants IN THE DISTRICT COURT OF WILLIAMSON COUNTY, TEXAS 26th JUDICIAL DISTRICT ORDER GRANTING FINAL SUMMARY JUDGMENT On January 21, 2026, the Court heard Plaintiffs' motion to compel arbitration. The Court considered the Plaintiffs' motion and the attached declaration of Gregg Murphy in support. The Court also considered Liberty Hill Construction's ("LHC") response and the attached declaration of Thomas McGrath in support. The Court finds that Plaintiffs substantially invoked the judicial process to LHC's detriment and prejudice and have waived their right to arbitration. The Plaintiffs' motion to compel arbitration is DENIED. The Court also heard LHC's Objections to Plaintiffs' Summary Judgment Evidence. The Court SUSTAINS the objections and STRIKES all documents attached to the Gregg Murphy and Johnny Ramirez Declarations as unauthenticated hearsay. The Court also SUSTAINS the Defendants' objections to the Gregg Murphy Declaration. Gregg Murphy, 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. The Court also SUSTAINS Defendants' objection to the admission of the Johnny Ramirez Declaration in its entirety where it was untimely under the mandatory exclusion requirement of […] [Page 1 ends. Transcript continues on the following page of the order.] ---------------------------------------------------------------------- ### 12. Striking a lay declaration for want of foundation URL: https://www.jhenrylaw.com/mechanism/striking-lay-opinion-declaration/ Authority: Tex. R. Evid. 701 & 702 Q: Can a homeowner testify that construction work was defective without an expert? A: 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.” Quoted authority: “The Court also SUSTAINS the Defendants' objections to the Gregg Murphy Declaration. Gregg Murphy, 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.” Source: Order Granting Final Summary Judgment, Cause No. 25-0131-C26, March 4, 2026 When it applies: Construction defect, professional negligence, valuation, causation, medical condition — any subject where the conclusion depends on training rather than observation. Most commonly it appears as a party declaration attached to a summary judgment response, doing work the party never designated an expert to do. How it is proved up: 1. Object sentence by sentence, not to the declaration as a whole. Global objections invite a global overruling. 2. Separate what he saw from what he concluded. Cracks, water, a gap — observations, admissible. 'Improperly framed,' 'not to code,' 'will cost $X to repair' — opinion, excluded. 3. Show the absence of foundation affirmatively: no trade experience, no inspection methodology, no designation as an expert. 4. Get a written order sustaining the objections, then show that what survives cannot raise a fact issue. What defeats it: - Genuinely lay observations, which come in and may be enough on a simpler element. - A witness with actual trade experience — an owner who is also a builder is a different problem. - Failure to obtain a ruling. An objection without an order preserves nothing. Used in: Murphy — the homeowner's declaration struck; a lay witness cannot opine on construction defects without foundation. Q: What is the difference between Rule 701 and Rule 702 opinion testimony? A: Rule 701 permits a lay witness to give opinions rationally based on his own perception and helpful to the factfinder, so long as they are not based on scientific, technical or other specialized knowledge. Once specialized knowledge is required, Rule 702 and its qualification and reliability requirements apply. Q: Do objections to summary judgment evidence have to be ruled on? A: Objections to the form of summary judgment evidence must be preserved by obtaining a ruling. The safer practice is always to secure a written order, which is also what makes the exclusion reviewable. Q: Can a property owner testify to the value of his own property in Texas? A: The property owner rule permits an owner to testify to the value of his property, but the testimony must still be based on market value rather than intrinsic or personal value, and it does not extend to technical opinions about defects or causation. Order on file: Order Granting Final Summary Judgment — Gregg Murphy and Dayla Murphy v. Liberty Hill Construction, LLC and Thomas McGrath, 26th Judicial District Court, Williamson County, Texas, Cause No. 25-0131-C26, signed March 4, 2026. Full text of the order: CAUSE NO. 25-0131-C26 GREGG MURPHY and DAYLA MURPHY, Plaintiffs v. LIBERTY HILL CONSTRUCTION, LLC and THOMAS MCGRATH, Defendants IN THE DISTRICT COURT OF WILLIAMSON COUNTY, TEXAS 26th JUDICIAL DISTRICT ORDER GRANTING FINAL SUMMARY JUDGMENT On January 21, 2026, the Court heard Plaintiffs' motion to compel arbitration. The Court considered the Plaintiffs' motion and the attached declaration of Gregg Murphy in support. The Court also considered Liberty Hill Construction's ("LHC") response and the attached declaration of Thomas McGrath in support. The Court finds that Plaintiffs substantially invoked the judicial process to LHC's detriment and prejudice and have waived their right to arbitration. The Plaintiffs' motion to compel arbitration is DENIED. The Court also heard LHC's Objections to Plaintiffs' Summary Judgment Evidence. The Court SUSTAINS the objections and STRIKES all documents attached to the Gregg Murphy and Johnny Ramirez Declarations as unauthenticated hearsay. The Court also SUSTAINS the Defendants' objections to the Gregg Murphy Declaration. Gregg Murphy, 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. The Court also SUSTAINS Defendants' objection to the admission of the Johnny Ramirez Declaration in its entirety where it was untimely under the mandatory exclusion requirement of […] [Page 1 ends. Transcript continues on the following page of the order.] ---------------------------------------------------------------------- ### 13. Striking opposing counsel's own declaration URL: https://www.jhenrylaw.com/mechanism/striking-opposing-counsel-declaration/ Authority: Tex. R. Civ. P. 166a(j)(4); Tex. R. Evid. 602 Q: Can a declaration signed by opposing counsel be struck as summary judgment evidence in Texas? A: 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.” Quoted authority: “The Court finds that the declaration of Bo Avery contradicts the discovery responses previously provided by Tri Marsh … Further, the Avery declaration is conclusory and does not provide any underlying facts with respect to any alleged breach by Aramcor. For both reasons, the statements … are struck and inadmissible.” Source: Order Granting Plaintiff's Objection to Defendant's Summary Judgment Evidence, Cause No. 24-0702-CC5, March 7, 2025 When it applies: Any response propped up by a declaration that asserts rather than shows. Two recurring varieties: the party declaration that contradicts what the party swore to in discovery, and the fee declaration that states a total without the underlying entries. How it is proved up: 1. Put the discovery response and the declaration side by side in the objection, quoted, so the contradiction is visible without argument. 2. Attach the verified interrogatory answers and initial disclosures as exhibits to the objection. 3. Name the defect precisely — conclusory, no underlying facts, no personal knowledge, sham affidavit — rather than objecting generally. 4. Set the objections for the same hearing as the motion and obtain a separate written order. What defeats it: - A declaration that supplies underlying facts. Conclusory is a defect of content, and a competent declarant can usually cure it if given the chance. - Timely amendment or supplementation of the discovery responses before the hearing. - Objections not ruled on, which waive the complaint as to form. Used in: Aramcor v. Tri Marsh — struck on the record at the hearing, which removed the response's only evidentiary support before the merits were argued. Q: What makes a declaration 'conclusory' under Texas law? A: A statement that offers a conclusion without the underlying facts that support it, so that it cannot be effectively controverted. Conclusory statements are not competent summary judgment evidence, and the defect is one of substance that may be raised for the first time on appeal. Q: Can a declaration contradict the party's own discovery responses? A: It can be struck when it does. A declaration that conflicts with the party's verified discovery answers, without explanation, is subject to exclusion — and the contradiction itself is usually the more persuasive argument at the hearing. Q: What is required to prove attorney's fees in Texas? A: Rohrmoos Venture v. UTSW DVA Healthcare requires evidence of the particular services performed, who performed them, when, the reasonable hours, and the reasonable hourly rate — the lodestar. A declaration reciting only a total is conclusory. Order on file: Order Granting Plaintiff's Objection to Defendant's Summary Judgment Evidence — Aramcor, Inc. v. Tri Marsh Retail LLC, County Court at Law No. 5, Williamson County, Texas, Cause No. 24-0702-CC5, signed March 7, 2025. Full text of the order: CAUSE NO. 24-0702-CC5 ARAMCOR, INC., Plaintiff v. TRI MARSH RETAIL LLC, Defendant IN THE COUNTY COURT AT LAW NO. 5 WILLIAMSON COUNTY, TEXAS ORDER GRANTING PLAINTIFF'S OBJECTION TO DEFENDANT'S SUMMARY JUDGMENT EVIDENCE On this day, the Court heard Aramcor, Inc.'s objection to the summary judgment evidence submitted by Tri Marsh Retail LLC with its summary judgment response. The Court finds that the declaration of Bo Avery contradicts the discovery responses previously provided by Tri Marsh, including in its initial disclosures and interrogatory responses. Further, the Avery declaration is conclusory and does not provide any underlying facts with respect to any alleged breach by Aramcor. For both reasons, the statements in the Avery declaration concerning any breach by Aramcor are struck and inadmissible. The Court also finds that the declaration of Kevin Wiley is conclusory and does not provide any underlying facts with respect to billing entries or the reasonableness or necessity of attorney fees. The statements in the Wiley declaration concerning the reasonableness or necessity of attorney fees are struck and inadmissible. SIGNED on March 7, 2025. _______________________________ PRESIDING JUDGE ---------------------------------------------------------------------- ### 14. Unauthenticated exhibits and unsworn argument URL: https://www.jhenrylaw.com/mechanism/unauthenticated-exhibits-unsworn-argument/ Authority: Tex. R. Evid. 901; Tex. R. Civ. P. 166a(j)(4) Q: Do exhibits attached to a summary judgment response have to be authenticated in Texas? A: 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. Quoted authority: “To satisfy the requirement of authenticating or identifying an item of evidence, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is.” Source: Tex. R. Evid. 901; Tex. R. Civ. P. 166a(j)(4) When it applies: Nearly every under-resourced response. The pattern is a stack of emails, invoices and screenshots attached to a brief with no affidavit, plus a narrative in the argument section that no witness ever swore to — and grounds in the motion that the response simply does not address. How it is proved up: 1. Object to each exhibit by number and state the defect: no sponsoring affidavit, no custodian, hearsay without an exception, no personal knowledge. 2. Separately identify the factual assertions that appear only in the brief and point out that no declaration supports them. 3. Enumerate the grounds the response never reached. Unaddressed grounds stand unrebutted, and saying so in a reply is what puts it before the court. 4. Obtain a separate order on the objections, so the evidentiary ruling and the judgment stand on their own feet. What defeats it: - A curative affidavit filed before the hearing, which is usually available if the opponent is paying attention. - Self-authenticating documents under Rule 902 — certified public records, business records with a 902(10) affidavit. - Defects of form not objected to in writing before the hearing, which are waived. Used in: Johnson & 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. Q: Are statements in a summary judgment brief evidence in Texas? A: No. Argument of counsel is not evidence. Factual assertions must be supported by affidavits, declarations, deposition excerpts, discovery responses or authenticated documents in the summary judgment record. Q: What happens to summary judgment grounds the response does not address? A: They stand unchallenged. A non-movant who fails to respond to a ground cannot later complain of it on any basis other than the legal sufficiency of the movant's own proof, so identifying the unanswered grounds expressly in a reply is worth doing every time. Q: How are business records authenticated on summary judgment in Texas? A: By an affidavit satisfying Tex. R. Evid. 902(10) — a custodian or other qualified witness swearing that the records were made at or near the time by someone with knowledge and kept in the regular course of a regularly conducted business activity. ---------------------------------------------------------------------- ### 15. The business-records affidavit that holds URL: https://www.jhenrylaw.com/mechanism/business-records-affidavit-902-10/ Authority: Tex. R. Evid. 902(10), 803(6) Q: What does a business-records affidavit have to say to be admissible in Texas? A: 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. Quoted authority: “The proponent must serve the record and the accompanying affidavit on each other party to the case at least 14 days before trial.” Source: Tex. R. Evid. 902(10)(A) When it applies: Every summary judgment on a written instrument, every default prove-up, every suit on an account. It is the mirror image of the entries on striking the other side’s declaration — the same defects, read from the other chair. How it is proved up: 1. Serve it, and calendar the service date. It is a service requirement, not a filing requirement — the filing requirement was removed in 2014, and lawyers still file and forget to serve. 2. Do not copy the rule’s sample language and stop. Rule 902(10)(B) says in terms that the form is not exclusive; what matters is that every element of Rule 803(6) is actually stated about these records by this witness. 3. An unsworn declaration under penalty of perjury works. There is no need to find a notary on a deadline. 4. Attach the records the affidavit describes, in the order it describes them, and number the pages. An affidavit that refers to invoices not in the exhibit proves nothing. 5. Have the custodian say how the records are made and kept, not merely that they are. The conclusory version is what gets struck. What defeats it: - Service later than fourteen days before trial, unless the court finds good cause — the rule does contain that safety valve, and it is worth knowing before conceding the point. - A custodian who cannot say the records were made at or near the time by a person with knowledge. - Documents created for the litigation rather than in the regular course, which are not business records however they are labelled. - Records of a different entity, received and filed but not integrated — the affidavit has to reach how the sponsoring business relies on them. Used in: Throughout 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. Q: How many days before trial must a business-records affidavit be served in Texas? A: At least 14 days, under Tex. R. Evid. 902(10)(A). It must be served on each other party; the requirement that it also be filed with the clerk was deleted in 2014. Q: Does a business-records affidavit have to follow the exact form in the rule? A: No. Rule 902(10)(B) provides sample language and states that the form is not exclusive. What matters is that the affidavit establishes the Rule 803(6) elements. An unsworn declaration made under penalty of perjury may be used instead of an affidavit. Q: Can a business-records affidavit be used on summary judgment? A: Yes, and it is the ordinary way documents are proved on a motion. The affidavit authenticates the records and removes the hearsay objection, which is why a defective one takes the entire damages proof with it. ---------------------------------------------------------------------- ### 16. Required disclosures, and the deadline nobody calendars URL: https://www.jhenrylaw.com/mechanism/required-disclosures-194/ Authority: Tex. R. Civ. P. 194 Q: When are initial disclosures due in a Texas lawsuit? A: 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. Quoted authority: “Except in a suit governed by the Family Code, the Property Code, the Tax Code, or Rule 216, a party must, without awaiting a discovery request, provide to the other parties the information or material described in Rule 194.2, 194.3, and 194.4.” Source: Tex. R. Civ. P. 194.1(a) When it applies: Every case, which is the point. The rule stopped being something you send and started being something you owe, and a great deal of practice has not caught up. How it is proved up: 1. Read the trigger carefully. The 30 days runs from the filing of the first answer or general appearance in the case, so a defendant served and joined months in can be nearly out of time on arrival. A later-joined party gets 30 days from being served or joined. 2. Work the twelve categories in Rule 194.2(b) as a checklist. The ones most often missed are the amount and method of calculating economic damages, indemnity and insuring agreements, settlement agreements, witness statements, and persons who may be designated responsible third parties. 3. Disclose documents you may use to support your claims or defenses. It is a use-based test, not a relevance test, and it does not reach material used solely for impeachment. 4. Do not object. Rule 194.5 permits no objection and no work-product assertion to a required disclosure — an objection is simply a failure to disclose. 5. Calendar Rule 194.4 separately: pretrial disclosures of witnesses and exhibits are due, and must be promptly filed, at least 30 days before trial. What defeats it: - Nothing, which is the difficulty. There is no motion to be resisted and no order to be obtained — the obligation runs whether or not anyone asks. - A belief that the old requests-for-disclosure practice survived. It did not, except in Family Code suits, which moved to Rule 194a in 2023. - Late supplementation, which does not cure the exclusion unless the court finds good cause or an absence of unfair surprise. Used in: Every 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. Q: Do you still have to request disclosures in Texas? A: No. Since the 2021 amendment, modelled on Federal Rule of Civil Procedure 26(a), Rule 194 requires disclosure without awaiting a discovery request. Suits governed by the Family Code use Rule 194a, which retains a request-based procedure. Q: When exactly are Texas initial disclosures due? A: Within 30 days after the filing of the first answer or general appearance in the case, unless changed by agreement or court order. A party served or joined later must respond within 30 days after being served or joined. Q: Can you object to a required disclosure in Texas? A: No. Rule 194.5 provides that no objection or assertion of work product is permitted to a required disclosure. Withholding on that basis is a failure to disclose and carries the Rule 193.6 exclusion. ---------------------------------------------------------------------- ### 17. Deemed admissions, and getting them back URL: https://www.jhenrylaw.com/mechanism/deemed-admissions-and-withdrawal/ Authority: Tex. R. Civ. P. 198.2(c), 198.3 Q: What happens if you miss the deadline to answer requests for admission in Texas? A: 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. Quoted authority: “If a response is not timely served, the request is considered admitted without the necessity of a court order.” Source: Tex. R. Civ. P. 198.2(c) When it applies: Any case where a deadline was missed — new counsel inheriting a file, a pro se defendant who later retains, a calendaring failure. It is also an offensive mechanism: requests drafted so that silence disposes of the case are cheap to serve and occasionally decisive. How it is proved up: 1. Move to withdraw rather than arguing the merits around the admissions. Until they are withdrawn they are conclusively established and no evidence contradicting them is admissible. 2. Where the admissions would preclude presentation of the merits, say so and cite the due-process line. Denying withdrawal of merits-preclusive admissions has been treated as effectively imposing a death-penalty discovery sanction, so absent flagrant bad faith or callous disregard good cause exists. 3. Show the absence of undue prejudice concretely — the trial date holds, the discovery period is open, the responses are attached to the motion. 4. Attach the responses. A motion to withdraw that does not tender the answers asks the court to take the cure on faith. 5. If you are the one holding the admissions, do not over-reach. A party that uses reflexive deemed admissions to win outright is inviting reversal. What defeats it: - Flagrant bad faith or callous disregard, which defeats good cause. - Real prejudice — a trial date that cannot move, a witness released, discovery closed in reliance. - Admissions that are not merits-preclusive. The constitutional protection attaches to the ones that would decide the case; ordinary deemed admissions get no such solicitude and you will live with them. - Delay. A motion filed once the other side has built its case on the admissions is a different motion from one filed the week they were deemed. Used in: On 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 defense. Q: Are admissions automatically deemed admitted in Texas? A: Yes. Under Tex. R. Civ. P. 198.2(c), a request is considered admitted without the necessity of a court order if a response is not timely served. The responding party ordinarily has 30 days. Q: Can deemed admissions be withdrawn in Texas? A: Yes, under Rule 198.3, on a showing of good cause and that the parties relying on them will not be unduly prejudiced and that presentation of the merits will be subserved. Q: Can deemed admissions decide a case? A: They can, but the Texas Supreme Court has treated using them to preclude presentation of the merits as implicating due process, and has held that denying withdrawal in that situation effectively imposes a death-penalty sanction. ---------------------------------------------------------------------- ### 18. Quashing a deposition notice URL: https://www.jhenrylaw.com/mechanism/motion-to-quash-deposition-notice/ Authority: Tex. R. Civ. P. 199.4, 192.6 Q: How do you stop a deposition that has been unilaterally noticed in Texas? A: 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. Quoted authority: “If the motion is filed by the third business day after service of the notice of deposition, an objection to the time and place of a deposition is automatically stayed until the motion is determined.” Source: Tex. R. Civ. P. 199.4 When it applies: A date set without conferring, a corporate representative noticed on topics nobody has defined, an apex deposition of a principal with no unique knowledge, a deposition set to consume the week before a dispositive hearing. How it is proved up: 1. Count the three business days from service of the notice, not from the date you read it. The stay is the reason to move, and it is available only inside that window. 2. Say what relief you want. A motion to quash the time and place is a narrower thing than a protective order under Rule 192.6 limiting the scope or the topics; ask for the one that fits. 3. Offer alternative dates in the motion. Courts grant relief far more readily to a party that is objecting to the arrangement than to a party that is objecting to being deposed. 4. On a corporate representative notice, attack the topics. A designation that does not describe matters with reasonable particularity cannot be prepared for and is the strongest ground. 5. Set it for hearing rather than letting the stay do the work indefinitely. A stay is not a resolution and a court will notice. What defeats it: - Filing on the fourth business day, which loses the automatic stay entirely. - A notice that is simply reasonable — the right witness, adequate notice, a workable place. - A record showing the movant refused to confer on dates and is now complaining about the ones chosen. - Apex arguments where the principal does in fact have unique or superior personal knowledge. Used in: In 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. Q: How long do you have to move to quash a deposition notice in Texas? A: Three business days after service of the notice, to obtain the automatic stay under Tex. R. Civ. P. 199.4. A motion filed later may still be heard, but the deposition is not stayed in the meantime. Q: Does filing a motion to quash stop the deposition? A: Yes, if filed by the third business day after service of the notice. An objection to the time and place is then automatically stayed until the motion is determined. Q: What is the difference between a motion to quash and a protective order? A: A motion to quash under Rule 199.4 addresses the time and place of the deposition. A protective order under Rule 192.6 addresses the scope — the topics, the documents, the manner — and may limit or forbid the discovery itself. ---------------------------------------------------------------------- ### 19. Spoliation — and why it is not for the jury URL: https://www.jhenrylaw.com/mechanism/spoliation-instruction/ Authority: Brookshire Bros., Ltd. v. Aldridge, 438 S.W.3d 9 (Tex. 2014) Q: What happens in Texas when the other side destroys evidence? A: 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. Quoted authority: “[A] party must intentionally spoliate evidence in order for a spoliation instruction to constitute an appropriate remedy … a trial court may submit a spoliation instruction only if the trial court finds that the spoliating party acted with the specific intent of concealing discoverable evidence.” Source: Brookshire Bros., Ltd. v. Aldridge, 438 S.W.3d 9, 14 (Tex. 2014) When it applies: The video overwritten on a thirty-day loop, the phone traded in, the accounting file that existed in discovery responses and not in production. Also, from the other chair, the case where the opponent intends to try the case on your document retention rather than on the merits. How it is proved up: 1. Establish the duty to preserve first — when the party knew or reasonably should have known there was a substantial chance a claim would be filed and the evidence was material. 2. Ask for a hearing outside the presence of the jury, and ask for a finding. Spoliation is treated as a particularised form of discovery abuse, which means it is the court’s question and not the jury’s. 3. Prove intent, not carelessness. The subjective purpose of concealing or destroying is the standard, and negligence does not reach it. 4. Where you cannot show intent, plead the narrow exception: negligent spoliation that irreparably deprives you of any meaningful ability to present a claim or defense. 5. Ask for a lesser remedy in the alternative. Courts have a range of options short of an instruction and are far more willing to use them. What defeats it: - A routine retention policy applied evenly and before any duty arose. - Absence of intent, which defeats the instruction even where the loss is real and inconvenient. - Evidence available from another source, which defeats the irreparable-deprivation exception. - Trying it to the jury. The party that over-plays spoliation in front of the jury without a predicate ruling is the party that loses the verdict on appeal. Used in: Argued 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. Q: Does Texas require intent for a spoliation instruction? A: Generally yes. Brookshire Brothers v. Aldridge holds that a spoliation instruction requires the specific intent of concealing discoverable evidence, with a narrow exception for negligent spoliation that irreparably deprives a party of any meaningful ability to present a claim or defense. Q: Who decides spoliation in Texas — the judge or the jury? A: The trial court, and it must do so outside the presence of the jury. Spoliation is treated as a particularised form of discovery abuse rather than a fact issue for the jury. Q: When does the duty to preserve evidence arise in Texas? A: When a party knows or reasonably should know that there is a substantial chance a claim will be filed and that evidence in its possession or control would be material and relevant to that claim. ---------------------------------------------------------------------- ### 20. Challenging an expert for reliability URL: https://www.jhenrylaw.com/mechanism/expert-reliability-challenge/ Authority: E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549 (Tex. 1995) Q: How do you exclude an unreliable expert in Texas? A: 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. Quoted authority: “[T]he party offering the expert’s testimony bears the burden to prove that the witness is qualified … The proponent must demonstrate that the expert possesses special knowledge as to the very matter on which he proposes to give an opinion.” Source: E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549, 556 (Tex. 1995) When it applies: Causation opinions, damages models, standard-of-care testimony, valuation. The challenge is worth making wherever the opinion is the case — an excluded expert on a dispositive element is a no-evidence motion waiting to be filed. How it is proved up: 1. Pick the right framework. Applying the six Robinson factors to a non-scientific, experience-based expert is how a good challenge gets denied; for those, the analytical-gap test is the argument. 2. Take the deposition first, and take it on methodology. What did you do, what did you rely on, what did you rule out, and what would change your opinion. 3. Attack the underlying data as well as the method. An unreliable foundation makes the opinion unreliable however sound the technique. 4. Move in time to be heard before trial, and get a ruling on the record. An objection carried with the case is not an exclusion. 5. Line up the consequence. Where the excluded testimony was the only evidence on an element, the next filing is a no-evidence motion — which is why the sequence in this catalog runs exclusion first. What defeats it: - An expert who is genuinely qualified and whose method is accepted in the field. - A challenge that is really a disagreement with the conclusion, which goes to weight. - A court that admits and lets cross-examination do the work, which many prefer. - Failing to obtain a ruling, which waives it. Used in: As 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. Q: What are the Robinson factors in Texas? A: Six non-exclusive factors for expert reliability: the extent to which the theory has been tested; the extent to which it relies on the subjective interpretation of the expert; whether it has been subjected to peer review or publication; the potential rate of error; whether it has been generally accepted as valid by the relevant scientific community; and the non-judicial uses made of it. Q: Do the Robinson factors apply to every expert? A: No. For experience-based or non-scientific experts the factors often do not fit, and Texas courts ask instead whether there is too great an analytical gap between the data relied on and the opinion offered. Q: Who bears the burden on an expert challenge in Texas? A: The party offering the testimony bears the burden of establishing that the expert is qualified and that the opinion is relevant and reliable. ---------------------------------------------------------------------- ### 21. Snapping back privileged material produced by accident URL: https://www.jhenrylaw.com/mechanism/snap-back-of-privileged-material/ Authority: Tex. R. Civ. P. 193.3(d) Q: What do you do when privileged documents go out in a production? A: 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. Quoted authority: “A party who produces material or information without intending to waive a claim of privilege does not waive that claim … if — within ten days or a shorter time ordered by the court, after the producing party actually discovers that such production was made — the producing party amends the response, identifying the material or information produced and stating the privilege asserted.” Source: Tex. R. Civ. P. 193.3(d) When it applies: Any production large enough that review was sampled rather than complete, which is most of them. Also the shared mailbox, the forwarded chain, the attachment nobody opened. How it is proved up: 1. Amend the response in writing. Identify the material and state the privilege — a letter asking for the documents back is not what the rule requires and does not start anything. 2. Date the discovery and be able to prove it. The ten days runs from actual discovery, so the record of when you found out is the record that matters. 3. Do not wait to finish the review. Snap back the documents you have found and amend again if more surface; the rule contemplates that. 4. If you are the receiving party, return them promptly and do not read further. The obligation is 'promptly', not ten days, and the tactical value of arguing about it is far smaller than the professional exposure. 5. Ask the court to shorten the period only if you mean it — the rule permits a shorter time by order, which cuts both ways. What defeats it: - An intentional production, which is a waiver whatever is said afterwards. - Delay past ten days from actual discovery. - Failing to amend the response, however clearly the demand was communicated. - A court order shortening the period that nobody diaried. Used in: Included 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. Q: How long do you have to snap back privileged documents in Texas? A: Ten days, or a shorter time ordered by the court, after the producing party actually discovers that the production was made. Tex. R. Civ. P. 193.3(d). Q: Does the receiving party have ten days to return privileged material? A: No. The rule requires the receiving party to return the specified material or information promptly. The ten-day period belongs to the producing party's obligation to amend. Q: Does producing a privileged document waive the privilege in Texas? A: Not if it was produced without intending to waive and the producing party amends within the Rule 193.3(d) period. An intentional production is a different matter. ---------------------------------------------------------------------- ### 22. Motion to compel, argued as waiver URL: https://www.jhenrylaw.com/mechanism/motion-to-compel-and-objection-waiver/ Authority: Tex. R. Civ. P. 193.2(e), 215.1; Axelson, Inc. v. McIlhany, 798 S.W.2d 550 (Tex. 1990) Q: What is the strongest way to compel discovery responses in Texas? A: 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. Quoted authority: “An objection that is not made within the time required, or that is obscured by numerous unfounded objections, is waived unless the court excuses the waiver for good cause shown.” Source: Tex. R. Civ. P. 193.2(e) When it applies: The response served late, the response consisting of forty identical boilerplate objections, the privilege claimed without a log. It applies to post-judgment discovery under Rule 621a in exactly the same way. How it is proved up: 1. Build the chronology first — served, due, served late or not at all — and put it in a table. That is the whole motion. 2. Quote the boilerplate back. A response objecting to every request as overbroad, unduly burdensome and not reasonably calculated is the paradigm of objections obscured by unfounded objections. 3. Ask for the specific relief: objections waived, full responses by a date certain, and fees under Rule 215.1(d). 4. Confer and document it. Certificates of conference are pro forma until the day they are not, and the court will look. 5. Set it. A motion to compel that is filed and never heard achieves nothing at all — and if the court will not set it, that refusal is itself a fact worth preserving. What defeats it: - Good cause, which the rule expressly preserves and which a diligent responding party can usually show for a short delay. - Objections that were timely, specific and well founded — waiver arguments do not reach those. - A movant whose own responses are late, which changes the tenor of the hearing entirely. - A court that will not set the motion. It happens, and the answer is not to keep re-noticing it. Used in: Murphy 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). Q: When are discovery objections waived in Texas? A: When not made within the time required, or when obscured by numerous unfounded objections, unless the court excuses the waiver for good cause. Tex. R. Civ. P. 193.2(e). Q: Can you recover attorney's fees on a motion to compel in Texas? A: Yes. Rule 215.1(d) permits the court to require the party or attorney whose conduct necessitated the motion to pay the reasonable expenses incurred in obtaining the order, including attorney's fees, unless the opposition was substantially justified. Q: Does the waiver rule apply to post-judgment discovery? A: Yes. Rule 621a makes the pre-trial discovery rules available in aid of enforcement, and the objection and waiver provisions come with them. ---------------------------------------------------------------------- ## Keeping the case alive ### 23. Verified motion to retain URL: https://www.jhenrylaw.com/mechanism/verified-motion-to-retain/ Authority: Tex. R. Civ. P. 165a Q: My case is on the dismissal docket in Texas — how do I get it retained? A: 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. Quoted authority: “The court shall reinstate the case upon finding after a hearing that the failure of the party or his attorney was not intentional or the result of conscious indifference but was due to an accident or mistake or that the failure has been otherwise reasonably explained.” Source: Tex. R. Civ. P. 165a When it applies: A file that drifted — a departed associate, a matter abated for settlement talks, a defendant who could not be served. The notice of intent to dismiss starts a short clock and the response has to be on file before the setting, not after. How it is proved up: 1. Verify it. An unsworn motion asserting diligence proves nothing, and the verification is what distinguishes it from the ones the court denies. 2. Recite the history factually — what was filed, served, answered and set, with dates. 3. Commit to specific next steps by date certain: designation of attorney in charge, discovery to be served, a motion to be filed, a trial setting to be requested. 4. Confer and state that the motion is unopposed. Opposing counsel usually has no reason to object, and an unopposed motion is granted on the papers. 5. File the designation of attorney in charge with it where the drift came from a personnel change. What defeats it: - A record of genuine conscious indifference — repeated notices ignored, no activity over a long period. - Missing the hearing. Post-dismissal reinstatement is available but the standard and the posture are worse. - A promise of future action the movant then does not keep, which forecloses a second motion. Used in: Two 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. Q: How long do I have to file a motion to reinstate in Texas? A: A motion to reinstate must be filed with the clerk within 30 days after the order of dismissal is signed or within the period provided by Rule 306a. The better course is to file a verified motion to retain before the dismissal hearing and never reach the question. Q: What is the standard for reinstatement under Rule 165a? A: The court must reinstate on finding that the failure to appear or to prosecute was not intentional or the result of conscious indifference, but was due to accident or mistake, or has otherwise been reasonably explained. Q: Does a motion to retain have to be verified? A: Rule 165a(3) requires the motion to reinstate to be verified. A verified motion to retain filed in advance of the dismissal setting follows the same logic and is materially more persuasive than an unsworn one. ---------------------------------------------------------------------- ### 24. Summary judgment filed out of time URL: https://www.jhenrylaw.com/mechanism/leave-to-file-summary-judgment-late/ Authority: Tex. R. Civ. P. 166a(b)(3), (d)(1); scheduling orders Q: Can I still file a summary judgment motion after the deadline has passed in Texas? A: 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. Quoted authority: “Unless a deadline for filing is set by court order, a party may file a traditional motion at any time after the nonmovant has appeared or answered.” Source: Tex. R. Civ. P. 166a(b)(3)(A), effective March 1, 2026 When it applies: Deadlines missed for a reason the court will find sympathetic — settlement negotiations that consumed the window, late-produced discovery, a substitution of counsel. Least available where the movant simply did not get to it. On a motion filed before March 1, 2026 the former rule governs, and the request really is one for leave under the old 166a(c); on a motion filed after, it is a request to move a date the court itself set. How it is proved up: 1. State the actual reason without dressing it up. Courts grant leave to lawyers who are straightforward and deny it to lawyers who are not. 2. Give the judicial-economy argument: a motion that could dispose of the case is worth hearing even late, because the alternative is a trial setting consumed by an issue of law. 3. Show the absence of prejudice — the respondent still gets its full response period, twenty-one days from the filing under the current rule, and the trial date does not move. 4. Attach the motion to the request so the court can see it is substantial rather than a delay tactic. 5. Watch who is responsible for the setting. Under the former rule the movant chased it. Under Rule 166a(c) the clerk must call the motion to the court's attention on filing and the court must set it — which is a real change in who bears the risk of a motion that goes quiet. What defeats it: - A trial setting too close to absorb the response period without a continuance. Under the current rule no hearing or submission date may be set within thirty-five days of filing, which is a longer runway than the old twenty-one-day notice period and can be decisive near a trial date. - A pattern of missed deadlines in the same case. - A local rule the court treats as jurisdictional in practice, which some do. Used in: Retail 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. Q: How many days before the hearing must a Texas summary judgment motion be filed? A: That is the former rule's question. Under Rule 166a(c) as it read before March 1, 2026, the motion had to be filed and served at least 21 days before the hearing except on leave of court. The current rule reverses the frame: deadlines run forward from filing, not backward from a hearing. No hearing or submission date may be set within 35 days after the motion is filed, and the court must set the motion within 60 days of filing — 90 if its docket requires, on a showing of good cause, or if the movant agrees. Which rule applies depends on when the motion was filed. Q: Can a court consider a late-filed summary judgment response? A: Yes, with leave. Leave of court is one of only two ways to file a response late — the other is agreement of the parties — and the same is true of a reply. Rule 166a(d)(1), (e)(1). Note where leave survived and where it did not: the current rule requires leave for the response and the reply, and provides none at all for the motion. Q: Is there still a motion for leave to file summary judgment late in Texas? A: Not under the rule, for motions filed on or after March 1, 2026. Rule 166a(b)(3)(A) permits a traditional motion at any time after the nonmovant has appeared or answered unless a deadline is set by court order, and 166a(b)(3)(B) permits a no-evidence motion after adequate time for discovery. What makes a motion late is therefore a scheduling order or a local rule, and the relief is a motion to modify it. For motions filed before that date, the former 166a(c) leave practice still governs. Q: Does filing a motion for leave stop the trial setting? A: No. Leave to file does not continue the trial, which is why the request should address how the motion can be heard without moving the setting. ---------------------------------------------------------------------- ### 25. Defeating a failure-to-mitigate defense URL: https://www.jhenrylaw.com/mechanism/defeating-failure-to-mitigate/ Authority: Tex. Prop. Code § 91.006; Austin Hill Country Realty v. Palisades Plaza, 948 S.W.2d 293 (Tex. 1997) Q: How do you beat a failure-to-mitigate defense in a Texas commercial lease case? A: 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. Quoted authority: “A landlord has a duty to mitigate damages if a tenant abandons the leased premises in violation of the lease. — Tex. Prop. Code § 91.006(a)” Source: Tex. Prop. Code § 91.006; Austin Hill Country Realty v. Palisades Plaza, 948 S.W.2d 293 (Tex. 1997) When it applies: Every abandoned commercial lease. It is the defense of first resort because it costs the tenant nothing to plead, and it survives only where the landlord cannot document what it actually did. How it is proved up: 1. Assemble the full marketing file from the date of abandonment forward: listing agreements, MLS and CoStar entries, brokerage engagement, signage, email campaigns with send dates and recipient counts. 2. Produce the showing log and the inquiries that came to nothing. Efforts that failed still prove reasonableness. 3. Put in the replacement leases — executed, with commencement dates and rates — and credit the rent actually received against the claim so the number the court sees is already net. 4. Where a sublease was proposed, produce the landlord's consent. Consent granted is the end of the argument that the landlord obstructed. 5. Keep the burden where it belongs: the tenant must prove both the failure and the amount by which damages should be reduced. What defeats it: - A genuine gap in the record — months with no listing, no broker, no activity. - Refusal of a qualified replacement tenant without a defensible reason. - Re-leasing at a below-market rate without explanation, which invites an argument about the credit rather than the effort. Used in: Non-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. Q: Who has the burden of proving failure to mitigate in Texas? A: The tenant. Under Austin Hill Country Realty v. Palisades Plaza and Tex. Prop. Code § 91.006, the tenant must prove that the landlord failed to make reasonable efforts to mitigate and the amount by which damages should be reduced. Q: Can a commercial lease waive the duty to mitigate in Texas? A: Section 91.006(b) provides that a provision of a lease purporting to waive a right or exempt a landlord from a liability or duty under the section is void. Q: What counts as reasonable efforts to relet commercial premises? A: There is no fixed list. Courts look at what the landlord actually did — listing, engaging a broker, advertising, showing the space, considering qualified prospects — measured against what a reasonably prudent landlord would do under similar circumstances. ---------------------------------------------------------------------- ### 26. Holding your forum against a special appearance URL: https://www.jhenrylaw.com/mechanism/forum-selection-clause-defeats-special-appearance/ Authority: 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) Q: Can a Texas court exercise personal jurisdiction over an out-of-state defendant based on a forum-selection clause? A: 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. Quoted authority: “Forum selection clauses are presumptively valid. Allowing a lawsuit to proceed in a forum other than that for which the parties contracted promotes forum shopping with its attendant judicial inefficiency, waste of judicial resources, delays of adjudication of the merits, and skewing of settlement dynamics.” Source: In re Laibe Corp., 307 S.W.3d 314, 316 (Tex. 2010) (per curiam); In re Lisa Laser USA, Inc., 310 S.W.3d 880, 883 (Tex. 2010) (per curiam) When it applies: Any Texas suit against a non-resident on a contract that fixes venue and forum in Texas — franchise agreements, service agreements, supply contracts, physician and provider agreements. It is the whole ballgame in a volume program, because a defendant who can force the case back to its home state has effectively won: the cost of suing in eleven states individually exceeds most of the claims. How it is proved up: 1. Read the special appearance for what it does not say. The recurring pattern is a well-drafted minimum-contacts brief that never mentions the clause its own client signed. Say so in the first paragraph of the response. 2. Quote the clause exactly, and attach the executed agreement to a business-records affidavit from the client’s custodian — not to the brief. 3. Confirm the clause is mandatory rather than permissive. “Shall be in the courts of Bexar County” is mandatory; “the parties consent to jurisdiction in” is not always. 4. Cite Laibe and Lisa Laser for the presumption and for the forum-shopping rationale — the Texas Supreme Court has granted mandamus to enforce these clauses, which is worth the court knowing. 5. Set the hearing. Rule 120a requires the special appearance to be heard and determined before any other plea or motion, so nothing else in the case moves until it is disposed of. Leaving it unset stalls the file, and in this program one matter sat that way for months. What defeats it: - No clause, or a clause that does not appear in the version this defendant actually signed. Check the specific executed agreement, not the form. - A permissive clause, which consents to jurisdiction without excluding other forums. - A defendant who never signed — a guarantor, an assignee or a successor entity is a different analysis. - Genuine unfairness or a statutory bar. Enforcement is presumptive, not automatic. - Sometimes it simply does not hold: one matter in this program was closed because jurisdiction properly lay in Kentucky. Being told that early is cheaper than being told it at the hearing. Used in: United 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. Q: What is a special appearance in Texas? A: A special appearance under Tex. R. Civ. P. 120a is the vehicle for a non-resident defendant to challenge personal jurisdiction without submitting to it. It must be sworn, must be filed before any other plea, pleading or motion, and must be heard and determined before those other matters. Q: Are forum-selection clauses enforceable in Texas? A: Yes. Texas courts treat them as presumptively valid and enforce them absent a clear showing that the clause is invalid, that enforcement would be unreasonable or unjust, or that the forum is seriously inconvenient. The Texas Supreme Court has issued mandamus to enforce them. Q: Does a forum-selection clause waive a special appearance? A: A contractual consent to jurisdiction in a named forum answers the minimum-contacts objection the special appearance raises. The clause is not a waiver of the procedural right to file the special appearance; it is the substantive answer to it. ---------------------------------------------------------------------- ### 27. Substituted service on a defendant who cannot be found URL: https://www.jhenrylaw.com/mechanism/substituted-service-rule-106/ Authority: Tex. R. Civ. P. 106(b) Q: How do you serve a defendant in Texas who is evading service or cannot be located? A: 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. Quoted authority: “Upon motion supported by a sworn statement listing any location where the defendant can probably be found and stating specifically the facts showing that service has been attempted … the court may authorize service in any other manner, including electronically by social media, email, or other technology, that the statement or other evidence shows will be reasonably effective to give the defendant notice of the suit.” Source: Tex. R. Civ. P. 106(b) When it applies: Any defendant who will not answer the door, a registered agent who has resigned, an entity whose registered office is a closed clinic, an individual who has moved out of state. It is the unglamorous predicate to every default judgment, and a defective affidavit here is the single most common reason a default is later set aside. How it is proved up: 1. The process server’s affidavit must state the address and the specific attempts — dates, times, what was observed. “Diligent efforts were made” is not a fact and will not support the order. 2. Establish that the stated location is one where the defendant can probably be found, which is the finding the rule actually requires. 3. Ask for the specific alternate manner you want, and attach a proposed order that grants exactly that. 4. Serve strictly in the manner the order authorizes. Substituted service is strictly construed and there is no presumption of valid service on a default judgment. 5. Get the signed order into the file and the return on file for at least ten days before taking the default, per Tex. R. Civ. P. 107(h). What defeats it: - A conclusory affidavit, which voids the order and everything built on it. - Service in a manner the order did not authorize. - A restricted appeal or Craddock motion for new trial where the defendant shows he never got notice. - On service through the Secretary of State, a record that does not show the statutory forwarding address. The Secretary’s certificate proves only that process went to the address shown on it, not that the address was the one the statute requires. Shamrock Enterprises, LLC v. Top Notch Movers, LLC, No. 24-0581 (Tex. Jan. 16, 2026), reversing a default judgment on that ground. - Nothing here cures a defendant with no assets — service gets you a judgment, not a recovery. Used in: Repeatedly 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. Q: What does Rule 106(b) require in the affidavit? A: A sworn statement listing any location where the defendant can probably be found and stating specifically the facts showing that service has been attempted at that location but was unsuccessful. Conclusory statements of diligence are insufficient. Q: Can you serve someone by email or social media in Texas? A: Rule 106(b) permits service in any other manner, including electronically by social media, email or other technology, that the evidence shows will be reasonably effective to give the defendant notice. Q: Why do default judgments get set aside for bad service? A: There are no presumptions in favor of valid issuance, service and return of citation when a default judgment is directly attacked. Strict compliance with the rules and with the substituted-service order must appear on the face of the record. Order on file: Default Judgment — United Biologics, LLC d/b/a United Allergy Services v. Santan Health Services, LLC, County Court at Law, Bexar County, Texas, Cause No. 2016CV02672, signed January 12, 2017. Full text of the order: CAUSE NO. 2016CV02672 UNITED BIOLOGICS, LLC d/b/a UNITED ALLERGY SERVICES, Plaintiff v. SANTAN HEALTH SERVICES, LLC, Defendant IN THE COUNTY COURT AT LAW BEXAR COUNTY, TEXAS DEFAULT JUDGMENT On 1/12/17, Plaintiff, UNITED BIOLOGICS, LLC d/b/a UNITED ALLERGY SERVICES moved for default judgment after Defendant SANTAN HEALTH SERVICES, LLC failed to file an answer in this case. At the hearing, Plaintiff appeared through its attorney. Defendant, SANTAN HEALTH SERVICES, LLC did not appear. The court determined that it had jurisdiction over the subject matter and the parties in this proceeding. After considering the pleadings, the papers on file in this case, and the evidence Plaintiff presented on liability and damages, the court GRANTS Plaintiff’s motion for default judgment. The court hereby RENDERS judgment for Plaintiff. Therefore, the Court ORDERS that Plaintiff recover damages from Defendant SANTAN HEALTH SERVICES, LLC in the sum of $69,761.43, pre-judgment interest in the sum of $20,101.70 and post-judgment interest on the total sum at the annual rate of 18%, attorney fees of $1,500.00, and court costs. The court finds the following: 1. Defendant was served with citation and a copy of Plaintiff’s First Amended Petition on September 15, 2016. 2. The citation and proof of service were on file with this court for at least ten days before the judgment was rendered. 3. The deadline for Defendant to file an answer was October 10, 2016. Defendant was required to file an answer the following Monday after 20 days from the date of service of citation and Plaintiff’s amended petition; however, Defendant did not file an answer or any other pleading constituting an answer. 4. Defendant’s last known address is 2181 East Pecos Road, Suite 1, Chandler, Arizona 85225. 5. The damages claimed in Plaintiff’s First Amended Petition were proven by the affidavits and other evidence presented by Plaintiff. 6. This judgment disposes of all claims and all parties and is appealable. SIGNED ON 1/12/17. _______________________________ JUDGE PRESIDING ---------------------------------------------------------------------- ### 28. Reinstatement after dismissal for want of prosecution URL: https://www.jhenrylaw.com/mechanism/motion-to-reinstate-after-dwop/ Authority: Tex. R. Civ. P. 165a Q: How do you undo a dismissal for want of prosecution in Texas? A: 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. Quoted authority: “The court shall reinstate the case upon finding after a hearing that the failure of the party or his attorney was not intentional or the result of conscious indifference but was due to an accident or mistake or that the failure has been otherwise reasonably explained.” Source: Tex. R. Civ. P. 165a(3) When it applies: A missed dismissal docket, a case that went quiet during settlement, a file where the notice went to an old address. It is also the answer for a case sent to arbitration and forgotten, where the court needs to survive in order to confirm the award. How it is proved up: 1. Verify it. An unverified motion to reinstate is the classic malpractice fact pattern — the rule requires verification by the movant or the attorney and courts enforce it. 2. Explain what actually happened rather than characterising it. Conduct is not excused merely by being unintentional, and it is not condemned merely by being deliberate; what matters is whether there was adequate justification. 3. Attach the proof of what the case was doing — the settlement correspondence, the arbitration order, the mediation date. 4. Move within 30 days of the signing of the order, or establish the Rule 306a date first if notice came late. 5. Ask for the hearing. The rule contemplates a finding after a hearing, and a motion overruled by operation of law never gets one. What defeats it: - An unverified motion. - The 75-day cliff. The motion is overruled by operation of law 75 days after the judgment is signed, and the court’s plenary power runs 30 days beyond that. - A record of repeated inattention in the same case, which turns accident into conscious indifference. - Waiting for the notice that never came. The 30 days runs from the signing of the order, not from the day you found out — that is what Rule 306a is for. Used in: Ellman 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. Q: How long do you have to move to reinstate after a dismissal for want of prosecution? A: 30 days after the order of dismissal is signed, under Tex. R. Civ. P. 165a(3), or within the period provided by Rule 306a where notice of the dismissal was received late. Q: Does a motion to reinstate have to be verified? A: Yes. Rule 165a(3) requires the motion to set forth the grounds and be verified by the movant or his attorney. An unverified motion is a recurring and avoidable failure. Q: Does reinstatement apply to dismissals under the court's inherent power? A: Yes. Rule 165a(4) provides that the same reinstatement procedures and timetable apply to all dismissals for want of prosecution, including those under the court's inherent power. ---------------------------------------------------------------------- ### 29. New trial after a default judgment URL: https://www.jhenrylaw.com/mechanism/motion-for-new-trial-after-default/ Authority: Craddock v. Sunshine Bus Lines, Inc., 133 S.W.2d 124 (Tex. 1939) Q: How do you set aside a default judgment in Texas? A: 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 defense; 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. Quoted authority: “[A] default judgment should be set aside and a new trial ordered in any case in which the failure of the defendant to answer before judgment was not intentional, or the result of conscious indifference on his part, but was due to a mistake or an accident; provided the motion for a new trial sets up a meritorious defense and is filed at a time when the granting thereof will occasion no delay or otherwise work an injury to the plaintiff.” Source: Craddock v. Sunshine Bus Lines, Inc., 133 S.W.2d 124, 126 (Tex. 1939) When it applies: A default taken while the file sat with an insurer, a citation served on a registered agent who had resigned, a defendant who answered the wrong cause number. It applies to a no-answer default and to a post-answer default alike. How it is proved up: 1. File within 30 days of the judgment. Craddock is the standard for a timely motion for new trial and does not extend the deadline — if the 30 days has run, the question is Rule 306a, restricted appeal, or bill of review instead. 2. Support the first element with an affidavit from the person who actually failed to act, saying what they believed and why. Counsel’s characterisation is not evidence. 3. Set up the meritorious defense with facts that would constitute a defense if proved. You do not have to prove it; you do have to plead it with enough substance to be tested. 4. Offer to reimburse the plaintiff’s costs of taking the default and to try the case promptly. That is how the third element is usually satisfied. 5. Check service first. Craddock is unnecessary where the defendant was never properly served — that judgment is void, and no Craddock showing is required. What defeats it: - Conscious indifference — a defendant who received the citation, understood it, and did nothing. - A meritorious defense pleaded as a conclusion rather than as facts. - Real prejudice to the plaintiff that reimbursement cannot cure. - The 30-day deadline, which is where most of these die. Used in: On 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. Q: What is the Craddock test in Texas? A: The three elements for setting aside a default judgment on a motion for new trial: the failure to answer was not intentional or the result of conscious indifference but due to accident or mistake; the motion sets up a meritorious defense; and granting it will occasion no delay or injury to the plaintiff. Q: How long do you have to set aside a default judgment in Texas? A: A motion for new trial must be filed within 30 days after the judgment is signed. After that the remedies are a Rule 306a extension where notice came late, a restricted appeal within six months, or a bill of review within four years. Q: Does Craddock apply when the defendant was never served? A: No. A judgment rendered without valid service is void, and the defendant need not meet the Craddock elements to have it set aside. ---------------------------------------------------------------------- ### 30. Restricted appeal URL: https://www.jhenrylaw.com/mechanism/restricted-appeal/ Authority: Tex. R. App. P. 30, 26.1(c) Q: Can you appeal a Texas judgment six months after it was signed? A: 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. Quoted authority: “A party who did not participate — either in person or through counsel — in the hearing that resulted in the judgment complained of and who did not timely file a postjudgment motion or request for findings of fact and conclusions of law, or a notice of appeal within the time permitted by Rule 26.1(a), may file a notice of appeal within the time permitted by Rule 26.1(c).” Source: Tex. R. App. P. 30 When it applies: Default judgments above all. Defective service, a missing return, a due-diligence affidavit that says nothing, an award of unliquidated damages on no evidence — all of it shows on the record or not at all, which is exactly the posture a restricted appeal is built for. How it is proved up: 1. Check the four elements before anything else: a party to the suit, filing within six months, no participation in the hearing, and error apparent on the face of the record. 2. Be precise about the fourth. Rule 30 itself supplies only three requirements — the face-of-the-record requirement is judicial gloss, and attributing it to the rule is the kind of slip a court of appeals notices. 3. Work the service record line by line. Return on file ten days under Rule 107(h), service in the exact manner the substituted-service order authorized, the Secretary of State’s certificate showing the statutory forwarding address. 4. Non-participation means not participating in the hearing that produced the judgment — it is not the same as never having appeared in the case. 5. Order the reporter’s record even if you expect there is none. Its absence where evidence was required is itself error on the face of the record. What defeats it: - Participation in the dispositive hearing, however brief. - A post-judgment motion or request for findings, which forecloses the remedy. - Error that requires evidence outside the record to show, which is what a bill of review is for. - The six months, which runs from the signing of the judgment and not from discovery of it. Used in: The 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. Q: How long do you have to file a restricted appeal in Texas? A: Six months after the judgment or order is signed, under Tex. R. App. P. 26.1(c). Q: What are the elements of a restricted appeal? A: The appellant must be a party to the suit who did not participate in the hearing that resulted in the judgment, must not have filed a timely post-judgment motion, request for findings, or notice of appeal, must file within six months, and must show error apparent on the face of the record. Q: What does 'error on the face of the record' mean? A: That the error must be shown by the papers and any reporter's record already before the appellate court, without extrinsic evidence. It is why defective service is the classic restricted-appeal ground and why fraud or accident generally is not. ---------------------------------------------------------------------- ### 31. Bill of review URL: https://www.jhenrylaw.com/mechanism/bill-of-review/ Authority: Baker v. Goldsmith, 582 S.W.2d 404 (Tex. 1979); Tex. Civ. Prac. & Rem. Code § 16.051 Q: Can a Texas judgment be attacked after the appellate deadlines have passed? A: By bill of review, and only on a narrow showing: a meritorious defense 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. Quoted authority: “Bill of review complainants must ordinarily plead and prove (1) a meritorious defense to the cause of action alleged to support the judgment, (2) that they were prevented from making by the fraud, accident or wrongful act of the opposite party, (3) unmixed with any fault or negligence of their own.” Source: Baker v. Goldsmith, 582 S.W.2d 404, 406–07 (Tex. 1979) When it applies: A judgment discovered long after the fact, an agreed judgment entered without authority, a clerk’s failure to send notice that also defeats Rule 306a. It is the last door and it is a narrow one. How it is proved up: 1. Plead all three elements and understand that the third is close to literal. Fault or negligence of the petitioner’s own defeats the bill even where the opponent behaved badly. 2. Official mistake is a real category — a clerk who did not send the notice, a file that was mis-docketed — and it does not require anyone to have acted wrongfully. 3. Establish first that no other remedy was available. A petitioner who could have moved for new trial, or taken a restricted appeal, and did not, has a fault problem. 4. Watch the four years. It runs from rendition of the judgment under the residual limitations statute, and equitable extensions are narrow. 5. Expect a preliminary hearing on the meritorious defense before the merits are reached. The procedure is staged, and the first stage is where most bills end. What defeats it: - Any negligence of the petitioner or its counsel. - A remedy that was available and not taken. - The four-year period. - A defense that is real but would not have changed the result. Used in: Prepared 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. Q: What is a bill of review in Texas? A: An independent equitable action to set aside a judgment that is no longer appealable and not void. It requires a meritorious defense or claim the petitioner was prevented from asserting by fraud, accident or wrongful act of the opponent or by official mistake, unmixed with any fault of its own. Q: How long do you have to file a bill of review in Texas? A: Four years from rendition of the judgment, under the residual limitations period in Tex. Civ. Prac. & Rem. Code § 16.051. Q: What is the difference between a bill of review and a restricted appeal? A: A restricted appeal is an appeal on the existing record within six months, and error must appear on the face of that record. A bill of review is a separate suit within four years in which extrinsic evidence may be offered, but the equitable elements are demanding. ---------------------------------------------------------------------- ### 32. Restarting the appellate clock when notice came late URL: https://www.jhenrylaw.com/mechanism/rule-306a-restarting-the-clock/ Authority: Tex. R. Civ. P. 306a(4), (5) Q: What if you never got notice that judgment was signed in Texas? A: 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. Quoted authority: “[I]f within twenty days after the judgment or other appealable order is signed, a party adversely affected by it or his attorney has neither received the notice required by paragraph (3) of this rule nor acquired actual knowledge of the order, then … all the periods … shall begin on the date that such party or his attorney received such notice or acquired actual knowledge … but in no event shall such periods begin more than ninety days after the original judgment … was signed.” Source: Tex. R. Civ. P. 306a(4) When it applies: The judgment signed at a hearing you were not told about, the notice sent to an old address, the dismissal that arrived after the plenary power had run. It is the predicate that makes a late motion for new trial or motion to reinstate timely. How it is proved up: 1. File the sworn motion. Rule 306a(5) makes proving the date in the trial court a prerequisite, not a formality — without it the extension does not exist, and appellate courts say so. 2. Prove two things: the date of first notice or actual knowledge, and that it was more than twenty days after the judgment was signed. 3. Get a finding. The trial court’s determination of the date is what the appellate court will use. 4. File the substantive motion at the same time — the motion for new trial, the motion to reinstate — rather than waiting for the 306a ruling. 5. Count to ninety before anything else. If actual knowledge came on day ninety-one, this rule cannot help and the remedies are a restricted appeal or a bill of review. What defeats it: - Notice received within twenty days, which gets no extension at all. - The ninety-day cap, which is absolute. - An unsworn motion, or no motion. - Actual knowledge acquired informally — a phone call from opposing counsel starts the clock as surely as the clerk’s notice. Used in: The 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. Q: What is a Rule 306a motion in Texas? A: A sworn motion filed in the trial court proving the date on which a party or its attorney first received notice or acquired actual knowledge that the judgment was signed, in order to restart the post-judgment and appellate periods from that date. Q: What is the ninety-day limit in Rule 306a? A: No matter how late notice was received, the periods may not begin more than ninety days after the original judgment or appealable order was signed. Rule 306a(4). Q: What if notice came within twenty days of the judgment? A: There is no extension. Rule 306a(4) applies only where neither notice nor actual knowledge was obtained within twenty days after the judgment was signed. ---------------------------------------------------------------------- ### 33. Continuance, and buying time on a summary judgment URL: https://www.jhenrylaw.com/mechanism/continuance-and-more-time/ Authority: Tex. R. Civ. P. 251, 252; Tex. R. Civ. P. 166a(d)(3) Q: How do you get more time before trial or before a summary judgment hearing in Texas? A: 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. Quoted authority: “If the nonmovant needs additional time to secure evidence in support of the response, the nonmovant must file an affidavit or declaration specifying the reasons why the nonmovant cannot present facts essential to justify its opposition.” Source: Tex. R. Civ. P. 166a(d)(3) When it applies: The witness who cannot be found, the discovery the other side has not produced, the expert designated late, counsel substituted a month out. Also the summary judgment set before the discovery that would answer it has happened. How it is proved up: 1. For a trial continuance, track Rule 252 line by line: that the testimony is material and why; that due diligence was used to procure it, stating the diligence; the cause of failure if known; that it cannot be procured from any other source; the absent witness’s name and residence and what is expected to be proved; and that it is not sought for delay only but that justice may be done. 2. Note the first-application concession — on a first application you need not show the testimony cannot be obtained from another source. 3. For a summary judgment, file the affidavit or declaration Rule 166a(d)(3) calls for and ask for the specific relief you want: extension of the response deadline, denial without prejudice to permit further discovery, or another appropriate order. 4. Do not call it a continuance in a summary judgment context. The rewritten rule does not use the word, and the old 166a(g) is now 'Hearing or Submission'. 5. Show what the discovery would produce, not merely that it is outstanding. The affidavit has to explain why you cannot present facts essential to the opposition. What defeats it: - An unsworn motion, which Rule 251 does not permit. - An affidavit that recites diligence without stating it. - A record of prior continuances in the same case. - A summary judgment respondent who had adequate time and did nothing with it. Used in: A 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. Q: Does a motion for continuance have to be verified in Texas? A: Yes. Rule 251 permits a continuance only for sufficient cause supported by affidavit, by consent of the parties, or by operation of law. Q: What must a continuance affidavit say when a witness is missing? A: Under Rule 252: that the testimony is material and showing its materiality; that due diligence was used to procure it and what that diligence was; the cause of failure if known; that the testimony cannot be procured from any other source; the witness's name and residence and what is expected to be proved; and that the continuance is not sought for delay only. Q: How do you get more time to respond to a summary judgment in Texas? A: For motions filed on or after 1 March 2026, by filing the affidavit or declaration required by Rule 166a(d)(3). The court may extend the response deadline, deny the motion without prejudice to permit further discovery, or issue another appropriate order. The former provision was Rule 166a(g). ---------------------------------------------------------------------- ### 34. Amending a pleading on the eve of trial URL: https://www.jhenrylaw.com/mechanism/trial-amendment-under-rule-63/ Authority: Tex. R. Civ. P. 63; Greenhalgh v. Service Lloyds Ins. Co., 787 S.W.2d 938 (Tex. 1990) Q: Can you amend your pleadings a week before trial in Texas? A: 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. Quoted authority: “[A]ny pleadings … offered for filing within seven days of the date of trial or thereafter … shall be filed only after leave of the judge is obtained, which leave shall be granted by the judge unless there is a showing that such filing will operate as a surprise to the opposite party.” Source: Tex. R. Civ. P. 63 When it applies: The theory that emerged in the last deposition, the defense that appeared when the documents finally came, the damages model that changed when the expert was designated. It also matters after the evidence closes, where a trial amendment conforms the pleadings to the proof. How it is proved up: 1. Ask for leave expressly and get a ruling. An amendment filed within seven days without leave may be treated as a nullity, and the record should show leave was sought. 2. Frame it as not prejudicial on its face. An amendment that asserts a new cause of action or defense and reshapes the nature of the trial is prejudicial on its face; one that refines an existing theory is not. 3. Offer to cure. A short continuance, a deposition, a limited document production — the offer usually answers the surprise objection. 4. If you are resisting, put on evidence of surprise or prejudice. Saying it is not enough, and the burden is yours. 5. Amend earlier where you can. Everything about this gets harder inside the seven days, and nothing about it gets better by waiting. What defeats it: - An amendment prejudicial on its face — a new cause of action or defense that changes what the trial is about. - Evidence of actual surprise or prejudice from the resisting party. - An amendment offered after the party has rested, where the proof does not support it. - A court order under Rule 166 setting an earlier amendment deadline, which Rule 63 expressly recognizes. Used in: Chiefly 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. Q: Can you amend pleadings within seven days of trial in Texas? A: Yes, with leave of court, which Rule 63 says shall be granted unless there is a showing that the filing will operate as a surprise to the opposite party. Q: Who has the burden on a trial amendment in Texas? A: The party resisting the amendment must present evidence of surprise or prejudice, unless the amendment is prejudicial on its face because it asserts a new cause of action or defense and reshapes the nature of the trial. Q: What is a trial amendment? A: An amendment offered during or after trial, commonly to conform the pleadings to the evidence actually admitted. It is governed by the same leave standard. ---------------------------------------------------------------------- ### 35. Severance to make a partial judgment final URL: https://www.jhenrylaw.com/mechanism/severance-to-finalize-a-partial-judgment/ Authority: Tex. R. Civ. P. 41; Guaranty Federal Savings Bank v. Horseshoe Operating Co., 793 S.W.2d 652 (Tex. 1990) Q: How do you make a partial summary judgment final and enforceable in Texas? A: 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. Quoted authority: “Any claim against a party may be severed and proceeded with separately.” Source: Tex. R. Civ. P. 41 When it applies: Any case where one defendant defaults, settles or loses on summary judgment while others remain — and any consolidated action where the claims were never really one controversy. How it is proved up: 1. Show the three things: that the controversy involves more than one cause of action, that the severed claim would be the proper subject of an independently asserted suit, and that it is not so interwoven with the remainder that the same facts and issues are involved. 2. Ask for a separate cause number and a separate final judgment in the order, not merely a recital that the claim is severed. 3. Do it one defendant at a time on a large docket. Each severance produces a judgment that can be abstracted and executed on immediately rather than waiting for the last defendant. 4. Make sure the severed judgment disposes of all claims by and against that party, or it is not final and you have accomplished nothing. 5. Know what you have started. Severance makes the judgment appealable, so the appellate clock begins. What defeats it: - Claims genuinely interwoven with the rest — the same facts, the same witnesses, a real risk of inconsistent verdicts. - A severance sought only to gain a tactical appellate advantage, which courts see. - Severing before the claim is actually fully disposed of, which produces a final judgment on an incomplete record. - The clock you did not mean to start. A party that wanted more time to settle before appealing has just lost it. Used in: A 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. Q: What is the test for severance in Texas? A: The controversy must involve more than one cause of action, the severed claim must be one that would be the proper subject of an independently asserted lawsuit, and it must not be so interwoven with the remaining action that they involve the same facts and issues. Q: Does severance make a partial summary judgment appealable? A: Yes, and that is usually the point. Severance converts an interlocutory partial judgment into a final, appealable one — which also starts the appellate timetable, so it should be a decision rather than a side effect. Q: What is the difference between severance and separate trials? A: A severance under Rule 41 creates a separate cause with its own final judgment. An order for separate trials under Rule 174(b) keeps one cause and one judgment, trying issues separately within it. ---------------------------------------------------------------------- ## Getting paid ### 36. Turnover order and post-judgment receiver URL: https://www.jhenrylaw.com/mechanism/turnover-order-post-judgment-receiver/ Authority: Tex. Civ. Prac. & Rem. Code § 31.002 Q: How do I get a turnover order and a post-judgment receiver on a Texas judgment? A: Apply under Tex. Civ. Prac. & Rem. Code § 31.002 on a showing that the judgment is final and unsatisfied and that the debtor owns nonexempt property that cannot readily be attached by ordinary process. In Murphy v. Liberty Hill Construction, Cause No. 25-0131-C26, the court appointed a receiver on May 27, 2026 after finding the debtors were dissipating their estate. They paid the judgment in full with interest rather than surrender to him. Quoted authority: “The Court FINDS … The Judgment Debtors are presently engaged in the dissipation of their estate, including by offering substantial personal property for sale on Facebook Marketplace under Gregg Murphy's name, by executing intra-family warranty deeds the day after the Judgment was signed, and by failing to respond in any manner to LHC's properly served post-judgment discovery.” Source: Order Granting Turnover Relief and Appointment of Post-Judgment Receiver, Cause No. 25-0131-C26, May 27, 2026 When it applies: Any final, non-dormant, unsuperseded judgment that remains unsatisfied — and it is at its most effective where the debtor has begun moving assets, because the dissipation is itself the strongest part of the application. How it is proved up: 1. Establish the predicate facts in a declaration: judgment signed and final, no supersedeas bond, motion for new trial overruled by operation of law, judgment wholly unsatisfied. 2. Serve post-judgment discovery first. A debtor who does not answer it has handed you the second finding the statute needs. 3. Document the dissipation with the actual artifacts — deed records showing the intra-family transfers, screenshots of the listings with dates and the account name. 4. Identify the property with specificity: real property by legal description, vehicles by VIN, accounts by institution, business interests by entity. 5. Ask for the injunction alongside the receivership, and for express authority to investigate and pursue fraudulent transfers. What defeats it: - Exempt property. The turnover statute does not reach the homestead, exempt personal property or current wages, and an order that purports to reach it is error. - A supersedeas bond, which stops enforcement entirely. - Dormancy under Tex. Civ. Prac. & Rem. Code § 34.001 if no writ issued within the statutory period. - Property that ordinary process can reach — the statute is for what a writ of execution cannot get at. Used in: Murphy — the day after judgment they executed intra-family warranty deeds on two properties and began selling equipment online. Receiver appointed over real property, vehicles, financial accounts, a business, and the listings themselves. They paid the judgment voluntarily and in full, with post-judgment interest, rather than surrender to him. Q: What does a Texas turnover order do? A: It orders the judgment debtor to turn over nonexempt property, including present or future rights to property, that cannot readily be attached or levied on by ordinary legal process. The court may also appoint a receiver and enjoin the debtor from transferring or disposing of the property. Q: Can a turnover order reach exempt property in Texas? A: No. Section 31.002 reaches only nonexempt property. An order that requires turnover of exempt property — the homestead, exempt personal property, current wages — exceeds the statute. Q: Do I have to serve post-judgment discovery before applying for a receiver? A: It is not a statutory prerequisite, but it is the practical one. A debtor's failure to answer properly served post-judgment discovery is direct evidence that the judgment cannot be satisfied through ordinary process, which is the finding the application needs. Order on file: Order Granting Judgment Creditor Liberty Hill Construction, LLC's Application for Turnover Order and Appointment of Post-Judgment Receiver — Gregg Murphy and Dayla Murphy v. Liberty Hill Construction, LLC and Thomas McGrath, 26th Judicial District Court, Williamson County, Texas, Cause No. 25-0131-C26, signed May 27, 2026. Full text of the order: CAUSE NO. 25-0131-C26 GREGG MURPHY and DAYLA MURPHY, Plaintiffs v. LIBERTY HILL CONSTRUCTION, LLC and THOMAS MCGRATH, Defendants IN THE DISTRICT COURT OF WILLIAMSON COUNTY, TEXAS 26th JUDICIAL DISTRICT ORDER GRANTING JUDGMENT CREDITOR LIBERTY HILL CONSTRUCTION, LLC'S APPLICATION FOR TURNOVER ORDER AND APPOINTMENT OF POST-JUDGMENT RECEIVER On this day came on for consideration the Application for Turnover Order and Appointment of Post-Judgment Receiver (the "Application") filed by Judgment Creditor Liberty Hill Construction, LLC ("LHC") against Judgment Debtors Gregg Murphy and Dayla Murphy (the "Judgment Debtors") under Texas Civil Practice and Remedies Code § 31.002. The Court considered the Application, the Declaration of Thomas McGrath, the exhibits attached thereto, the response (if any) of the Judgment Debtors, the arguments of counsel, and the pleadings and papers on file in this cause. FINDINGS The Court FINDS as follows: 1. On March 4, 2026, the Court signed a Final Summary Judgment in favor of LHC and against the Judgment Debtors (the "Judgment"). The Judgment is final, is not dormant, and is not superseded. The Judgment Debtors have not posted a supersedeas bond or made any deposit in lieu of bond. The Judgment Debtors' motion for new trial was overruled by operation of law on May 18, 2026. The Judgment remains wholly unsatisfied. 2. LHC is a judgment creditor; this Court is a court of appropriate jurisdiction; the relief sought is to obtain satisfaction of the Judgment; and the Judgment Debtors own nonexempt real and personal property, including the property identified in the Application and the Declaration of Thomas McGrath. 3. The Judgment Debtors are presently engaged in the dissipation of their estate, including by offering substantial personal property for sale on Facebook Marketplace under Gregg Murphy's name, by executing intra-family warranty deeds the day after the Judgment was signed, and by failing to respond in any manner to LHC's properly served post-judgment discovery. [Page 1 ends. Transcript continues on the following pages of the order.] ---------------------------------------------------------------------- ### 37. Fraudulent transfer URL: https://www.jhenrylaw.com/mechanism/fraudulent-transfer-tufta/ Authority: Tex. Bus. & Com. Code ch. 24 (Texas Uniform Fraudulent Transfer Act) Q: The judgment debtor deeded his house to a family member the day after judgment — what can be done? A: It can be unwound. Under the Texas Uniform Fraudulent Transfer Act, a transfer made with actual intent to hinder, delay or defraud a creditor — or made without reasonably equivalent value while insolvent — is voidable. The statutory badges of fraud include transfers to insiders and transfers made shortly after a substantial debt was incurred. Often the authority to investigate the transfer is enough to end the fight. Quoted authority: “A transfer made or obligation incurred by a debtor is voidable as to a creditor … if the debtor made the transfer or incurred the obligation … with actual intent to hinder, delay, or defraud any creditor of the debtor. — Tex. Bus. & Com. Code § 24.005(a)(1)” Source: Tex. Bus. & Com. Code ch. 24 (Texas Uniform Fraudulent Transfer Act) When it applies: Post-judgment asset moves, insider transfers for no consideration, and transfers of receivables or accounts mid-stream. The badges of fraud in § 24.005(b) are a checklist, and a post-judgment intra-family deed satisfies several of them on its face. How it is proved up: 1. Pull the deed records and the entity filings and build the chain: who transferred what, to whom, on what date, for what stated consideration. 2. Line the transfer date up against the judgment date. A day-after transfer needs no argument. 3. Work the badges expressly — insider, retained possession or control, concealment, transfer of substantially all assets, insolvency, timing relative to the debt. 4. Build the remedy into the receivership order: express TUFTA authority to investigate and to pursue avoidance, so a separate suit is not the only path. 5. Where the transfer is in progress rather than complete, a temporary restraining order stops it while the record is built. What defeats it: - A good-faith transferee who gave reasonably equivalent value — a complete defense under § 24.009. - The statute of repose in § 24.010, which extinguishes claims not brought within the statutory periods. - A transfer that predates the creditor relationship and has no other badge attached. Used in: Murphy — the receivership carried express TUFTA authority over the post-judgment deeds. Separately, a 2012 Williamson County TRO froze a transfer of receivables mid-stream, which is what made the settlement below possible. Q: What are the 'badges of fraud' under Texas law? A: Section 24.005(b) lists eleven factors, including whether the transfer was to an insider, whether the debtor retained possession or control, whether it was concealed, whether the debtor had been sued or threatened with suit, whether it was of substantially all the debtor's assets, and whether the debtor was insolvent or became insolvent shortly after. Q: How long do I have to bring a fraudulent transfer claim in Texas? A: Section 24.010 sets the periods — generally four years after the transfer, or in the case of actual intent, within one year after the transfer was or reasonably could have been discovered, subject to the statute's terms. Q: Can a receiver pursue fraudulent transfer claims? A: A post-judgment receiver appointed under § 31.002 can be given express authority in the order to investigate and pursue transfers of the debtor's property, which is materially faster than filing a separate avoidance action. ---------------------------------------------------------------------- ### 38. Settlement written into a final judgment URL: https://www.jhenrylaw.com/mechanism/settlement-as-agreed-final-judgment/ Authority: Tex. R. Civ. P. 11 & 621 Q: What is the difference between a settlement agreement and an agreed final judgment in Texas? A: A breached settlement agreement buys you a second lawsuit. The same terms entered as an agreed final judgment under Tex. R. Civ. P. 11, with execution ordered to issue, buy you a writ. It is the same paper and a completely different remedy. In a 2012 Williamson County matter the settlement was incorporated into an agreed final judgment for $208,045.41 joint and several plus $12,131.29 in fees at 10% interest, with execution ordered. Quoted authority: “When a judgment is rendered, execution may issue thereon at any time after the expiration of thirty days from the time the final judgment is signed. — Tex. R. Civ. P. 627, and see Rule 621” Source: Tex. R. Civ. P. 11 & 621 When it applies: Any settlement where collection risk is real — a defendant with thin assets, a payment schedule over time, multiple obligors, or a counterparty who has already broken one promise. How it is proved up: 1. Draft the judgment, not just the agreement. The settlement terms go in the decretal paragraphs so the court renders them. 2. Make liability joint and several across every obligor you can reach, and state the interest rate. 3. Order execution to issue expressly, so the clerk has nothing to interpret. 4. Dispose of every claim and every party in the same instrument, or say expressly that it does not — an ambiguous judgment is a finality problem later. 5. Where a party is being released, do the non-suit and the release in the same sequence as the judgment so nothing is left hanging. What defeats it: - A defendant who will not agree to a judgment, which is common and is a negotiating point rather than a defect. - Bankruptcy, which stays enforcement regardless of the form. - A judgment that fails to dispose of all parties without saying so, creating an interlocutory order that cannot be executed on. Used in: Electronics manufacturer, two affiliated entities and a financing company, 368th Judicial District Court, Williamson County. A TRO froze the asset transfer; the financing company was non-suited in exchange for a mutual release; the settlement was then incorporated into an agreed final judgment — $208,045.41 joint and several plus $12,131.29 in fees, 10% interest, execution ordered to issue. Q: Is a Rule 11 agreement enforceable in Texas? A: A Rule 11 agreement is enforceable if it is in writing, signed and filed with the papers as part of the record, or made in open court and entered of record — but enforcing it on breach generally requires a claim for breach of the agreement, not a writ. Q: Can a settlement be turned into a judgment in Texas? A: Yes. The parties may agree to entry of an agreed final judgment incorporating the settlement terms. The court renders judgment on the agreement while consent exists, and the resulting judgment is enforceable by execution like any other. Q: When can execution issue on a Texas judgment? A: Generally after 30 days from the signing of the final judgment, subject to the rules on supersedeas and on motions that extend the plenary period. Order on file: Agreed Final Judgment — Round Rock Business Park, L.P. v. Electronic Polymers, Inc., Electronic Polymers Newco, Inc. and Cardigan Financial Services, LLC, 368th Judicial District Court, Williamson County, Texas, Cause No. 11-1187-C368, signed February 8, 2012. Full text of the order: CAUSE NO. 11-1187-C368 ROUND ROCK BUSINESS PARK, L.P., Plaintiff v. ELECTRONIC POLYMERS, INC., ELECTRONIC POLYMERS NEWCO, INC., and CARDIGAN FINANCIAL SERVICES, LLC, Defendants IN THE DISTRICT COURT WILLIAMSON COUNTY, TEXAS 368TH JUDICIAL DISTRICT AGREED FINAL JUDGMENT On February 7, 2012, the Court heard Plaintiff Round Rock Business Park, L.P. and Defendants Electronic Polymers, Inc. and Electronic Polymers Newco, Inc.'s Joint Motion for Agreed Judgment. The parties appeared before the Court for the hearing on the motion. No jury was demanded by either party. After considering the pleadings, motions, responses, evidence on file, and arguments of counsel, the Court GRANTS the motion. The Court hereby RENDERS judgment for Plaintiff Round Rock Business Park, L.P. against Defendants Electronic Polymers, Inc. and Electronic Polymers Newco, Inc. 1. Therefore, the Court ORDERS that Plaintiff Round Rock Business Park, L.P. recover damages from Defendants Electronic Polymers, Inc. and Electronic Polymers Newco, Inc., jointly and severally, in the sum of $208,045.41, attorney fees in the amount of $12,131.29 post-judgment interest at the annual rate of 10%, and court costs. [Paragraph 2 is struck through on the face of the order and initialled in the margin. It read: "The Court ORDERS that all provisions of the Compromise and Settlement Agreement are hereby incorporated into the Agreed Final Judgment, unless specifically modified by this Agreed Final Judgment."] [Paragraph 3 is struck through on the face of the order. It read: "The Court ORDERS that the Compromise and Settlement Agreement is enforceable."] 4. This judgment is final, disposes of all claims and all parties, and is appealable. 5. The Court orders execution to issue for this judgment. SIGNED ON February 8, 2012. _______________________________ PRESIDING JUDGE [Page 3] AGREED AS TO FORM AND SUBSTANCE: _______________________________ THE LAW OFFICES OF JOHN P. HENRY, P.C. John P. Henry, State Bar No. 24055655 ATTORNEY FOR PLAINTIFF _______________________________ TED SMITH LAW GROUP, PLLC Theodore D. "Ted" Smith, Jr., State Bar No. 18753800 ATTORNEYS FOR DEFENDANTS ELECTRONIC POLYMER, INC., AND ELECTRONIC POLYMERS NEWCO, INC. ---------------------------------------------------------------------- ### 39. Agreed judgment held and not executed upon URL: https://www.jhenrylaw.com/mechanism/agreed-judgment-held-not-executed/ Authority: Tex. R. Civ. P. 11 — instrument drafting Q: How do you secure a payment plan from a defaulting tenant without litigating again? A: Take an agreed judgment and promise not to execute on it while payments are made. The strongest security a defaulting party can give is a judgment already signed. With a cure period, a per-instalment penalty, an indemnity if the creditor executes early and a mandatory release five business days after payoff, both sides are protected — and performance follows, because the alternative is already on file. When it applies: Structured settlements with a party who has some ability to pay over time but no assets worth chasing today. It converts a collection problem into an administrative one. How it is proved up: 1. Agreed judgment signed and entered, with a forbearance agreement running alongside it. 2. A cure period, so a late payment is a curable event rather than an immediate execution. 3. A per-instalment penalty that makes lateness cost more than paying on time. 4. An indemnity running to the debtor if the creditor executes while payments are current — this is what makes the deal signable. 5. A mandatory release of judgment filed within a stated number of business days after payoff. Put the deadline in the instrument; do not leave it to good faith. What defeats it: - A debtor with no income at all, for whom no structure works. - A creditor who will not wait, in which case take the judgment and enforce. - Sloppy drafting — an unclear cure period or an unclear release obligation turns the arrangement into its own dispute. Used in: Tanning salon and its personal guarantor, County Court at Law No. 4. A $16,459.18 demand became $38,500 over nineteen payments, secured this way — the judgment signed and held, the instalments running, and a release filed on payoff. Paid in full. Q: What is a forbearance agreement on a judgment? A: A contract in which the judgment creditor agrees not to execute on a judgment so long as the debtor performs a payment schedule. It leaves the judgment in place as security while giving the debtor a defined path to a release. Q: Should a judgment be abstracted if the debtor is paying? A: That is a negotiated point. Abstracting creates a lien that will encumber the debtor's property and can defeat a refinancing that would pay you faster. Many of these agreements provide that no abstract issues while payments are current. Q: When must a release of judgment be filed in Texas? A: There is no universal deadline, which is exactly why the obligation and its timing belong in the agreement. Specifying a fixed number of business days after payoff avoids the most common post-payment dispute. ---------------------------------------------------------------------- ### 40. Partial default that preserves the case URL: https://www.jhenrylaw.com/mechanism/partial-default-preserving-the-case/ Authority: Tex. R. Civ. P. 239, 240 Q: Can I take a default judgment against one defendant and keep the case alive against the others? A: Yes, but the judgment has to say so. An interlocutory default may be taken against a defendant who has not answered while the case proceeds against the rest — and the order must state expressly that it does not dispose of all claims and all parties. Without that recital a court may treat it as final, start the appellate clock, and take the remainder of the case with it. Quoted authority: “Where there are several defendants, some of whom have made default … the plaintiff may discontinue as to the defendants so making default and take judgment against those who have answered, or may take judgment against those who have made default. — Tex. R. Civ. P. 240, in substance” Source: Tex. R. Civ. P. 239, 240 When it applies: Multi-defendant collection suits — a tenant entity, several guarantors, prior assignors still liable on the lease, and one defendant who has moved out of state and will not appear. How it is proved up: 1. Perfect service and prove it. A default is only as good as the return, and an out-of-state defendant means long-arm service under the Civil Practice and Remedies Code with the requisite jurisdictional allegations pleaded. 2. Prove damages by affidavit even on a liquidated claim, with the instrument attached. 3. Include the express non-disposition recital: this judgment does not dispose of all claims and all parties and is interlocutory. 4. Segregate the defaulting defendant's liability from the others so the judgment can stand alone. 5. Check the servicemembers affidavit and the last-known-address certificate before presenting it. What defeats it: - Defective service, which is the single most common reason defaults are set aside. - A timely motion for new trial under the Craddock standard. - Omitting the non-disposition language, which can convert the order into a final judgment by operation of the finality presumption. Used in: Restaurant tenant, six co-defendants and two third-party defendants, County Court at Law No. 4. Default taken against the one defendant who had moved out of state — $61,207.41 plus $3,375 in fees, signed and file-stamped — while the answering parties settled for $20,000, receipted. Demands had gone not only to the tenant and guarantors but to prior assignors still liable on the lease. Q: Is a partial default judgment final in Texas? A: Not if it says it is not. A judgment is final for appeal if it disposes of all claims and all parties or states with unmistakable clarity that it is final. An interlocutory default should expressly recite that it does not dispose of all claims and parties. Q: What is the Craddock standard for setting aside a default? A: A default will be set aside where the failure to answer was not intentional or the result of conscious indifference but was due to accident or mistake, the motion sets up a meritorious defense, and granting it will occasion no delay or injury to the plaintiff. Q: Do damages have to be proved on a default judgment in Texas? A: Unliquidated damages must be proved. Even on a liquidated claim, presenting an affidavit with the underlying instrument is the practice that survives a motion for new trial. Order on file: Order on Plaintiff's Motion for Partial Default Judgment, and Partial Default Judgment — Southwestern Retail Properties, L.P. v. Mariachis de Jalisco, Inc., Jaime Fernandez, Tom Groszek, Ana Groszek, Reynaldo Leon, Anatalia Villegas and Francisco Reyes, County Court at Law No. 4, Williamson County, Texas, Cause No. 11-0982-CC4, signed February 7, 2012. Full text of the order: CAUSE NO. 11-0982-CC4 SOUTHWESTERN RETAIL PROPERTIES, L.P., Plaintiff v. MARIACHIS DE JALISCO, INC., JAIME FERNANDEZ, TOM GROSZEK, ANA GROSZEK, REYNALDO LEON, ANATALIA VILLEGAS, AND FRANCISCO REYES, JOINTLY AND SEVERALLY, Defendants IN THE COUNTY COURT AT LAW NO. 4 WILLIAMSON COUNTY, TEXAS ORDER ON PLAINTIFF'S MOTION FOR PARTIAL DEFAULT JUDGMENT After considering Plaintiff's motion for default judgment, the pleadings, the affidavits, and arguments of counsel, the Court GRANTS Plaintiff's motion for default judgment against Defendant Ana Groszek. Because the unliquidated damages were proved by affidavit, Plaintiff is awarded damages of $61,207.41. SIGNED ON February 7, 2012. /s/ John B. McMaster PRESIDING JUDGE [Second instrument, same cause and same day] DEFAULT JUDGMENT On January 6, 2012, Plaintiff, SOUTHWESTERN RETAIL PROPERTIES, L.P., moved for default judgment after defendant failed to file an answer in this case. At the hearing, Plaintiff appeared through its attorney. Defendant, ANA GROSZEK did not appear. The court determined it had jurisdiction over the subject matter and the parties in this proceeding. After considering the pleadings, the papers on file in this case, and the evidence Plaintiff presented on liability and damages, the court grants Plaintiff's motion for default judgment. The court hereby RENDERS judgment for Plaintiff. Therefore, the Court ORDERS that Plaintiff recover damages from Defendant in the sum of $61,207.41 and post judgment interest on the total sum at the annual rate of 5%, attorney fees of $3,375.00, and court costs. The court finds the following: 1. Defendant was served with citation and a copy of Plaintiff's Original Petition on November 17, 2011. 2. The citation and proof of service were on file with this court for at least ten days before the judgment was rendered. 3. The deadline for Defendant to file an answer was December 12, 2011. Defendant was required to file an answer by 10:00 a.m. on the Monday first following the expiration of 20 days from the date of service of citation and Plaintiff's petition; however, Defendant did not file an answer or any other pleading constituting an answer. 4. Defendant's last known address is 915 North Commerce Street, Stockton, California, 95202. 5. Defendant is not a member of the United States military. 6. The damages claimed in Plaintiff's Original Petition were proven by the affidavits and other evidence presented by Plaintiff. 7. This judgment does not dispose of all claims and all parties. SIGNED ON February 7, 2012. /s/ John B. McMaster PRESIDING JUDGE ---------------------------------------------------------------------- ### 41. Abstract, writ, and the constable URL: https://www.jhenrylaw.com/mechanism/abstract-writ-and-the-constable/ Authority: Tex. Prop. Code § 52.001; Tex. R. Civ. P. 621, 627 Q: How do I actually collect a Texas judgment once I have it? A: Abstract the judgment and record it in every county where the debtor owns anything — that creates a judgment lien on the debtor's nonexempt real property under Tex. Prop. Code § 52.001 — then have the writ of execution issued and delivered to the constable. The abstract works passively and is often paid at a closing years later; the writ is what moves a debtor who is waiting you out. In Aramcor v. Tri Marsh Retail LLC the defendant neither appealed nor paid — until the constable arrived to execute, at which point it paid the balance. Quoted authority: “A first or subsequent abstract of judgment, when it is recorded and indexed in accordance with this chapter … constitutes a lien on and attaches to any real property of the defendant … located in the county in which the abstract is recorded and indexed. — Tex. Prop. Code § 52.001” Source: Tex. Prop. Code § 52.001; Tex. R. Civ. P. 621, 627 When it applies: Every unsatisfied judgment. It is the least glamorous mechanism on this list and the one most often skipped, which is why judgments sit uncollected while the debtor refinances property the creditor could have encumbered. How it is proved up: 1. Abstract immediately and record in every county of ownership — not only the county of suit. The lien is county by county. 2. Index correctly. An abstract that is recorded but not properly indexed may not create the lien. 3. Keep the judgment alive: issue a writ within the period that prevents dormancy under Tex. Civ. Prac. & Rem. Code § 34.001. 4. Identify leviable property before the writ issues, so the constable has somewhere to go. 5. Pair with post-judgment discovery, and escalate to turnover if the property cannot be reached by ordinary process. What defeats it: - The homestead and other exempt property, which the lien does not attach to. - Prior liens with priority. - Dormancy, if no writ issues within the statutory period, though the judgment may be revived. - Bankruptcy, and the preference window on liens perfected shortly before filing. Used in: Aramcor, Inc. v. Tri Marsh Retail LLC · Cause No. 24-0702-CC5, County Court at Law No. 5, Williamson County. Judgment of $44,658.57 plus $28,929.12 in fees signed 7 March 2025. No appeal and no payment; abstract filed and a writ of execution issued that May on the balance of $73,587.69 and delivered to the constable. The defendant paid when the constable came to execute — which is the ordinary way this ends, and the reason the writ is worth taking out rather than threatening. Q: How long does a Texas judgment lien last? A: An abstract of judgment recorded and indexed generally creates a lien that continues for ten years from the date of recording and indexing, subject to the judgment not becoming dormant. Q: When does a Texas judgment become dormant? A: Under Tex. Civ. Prac. & Rem. Code § 34.001, if no writ of execution is issued within the statutory period after rendition, the judgment becomes dormant and execution may not issue unless it is revived. Q: Does a judgment lien attach to a Texas homestead? A: No. The homestead is exempt, and a judgment lien does not attach to it — though the abstract can still create title complications that are resolved when the property is sold. ---------------------------------------------------------------------- ### 42. Taking a Texas judgment into another state URL: https://www.jhenrylaw.com/mechanism/domesticating-a-texas-judgment/ Authority: Uniform Enforcement of Foreign Judgments Act, as adopted in the enforcing state; Tex. Civ. Prac. & Rem. Code ch. 35 (Texas’s reciprocal provision); U.S. Const. art. IV, § 1; 28 U.S.C. § 1738 Q: How do you enforce a Texas judgment against a defendant whose assets are in another state? A: Domesticate it. A Texas judgment is entitled to full faith and credit, and every state but a handful has adopted the Uniform Enforcement of Foreign Judgments Act — file an authenticated copy of the judgment with an affidavit giving the parties’ last known addresses, give the statutory notice, wait out the period, and it is enforceable there as a local judgment. In a Bexar County program against practices in a dozen states, this was step two on nearly every file. Quoted authority: “Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State.” Source: U.S. Const. art. IV, § 1 When it applies: Any Texas judgment against a defendant whose real property, bank accounts or receivables sit elsewhere — which, in a forum-selection-clause program, is nearly all of them. It is also the answer when a debtor moves after judgment. How it is proved up: 1. Obtain an exemplified or authenticated copy of the judgment meeting 28 U.S.C. § 1738 — not a plain certified copy, in states that require exemplification. 2. File it with the affidavit the enforcing state’s statute requires, giving the judgment creditor’s and debtor’s last known addresses. 3. Give the statutory notice and calendar the waiting period before executing. The periods differ by state and executing early is the most common error — Arizona bars execution until twenty days after the creditor mails notice and files proof of mailing, A.R.S. § 12-1704(C), while Louisiana bars it until thirty days after the clerk mails notice, La. R.S. 13:4243(C). Note which party does the mailing, because that is what starts the clock. 4. Confirm the judgment is final and not dormant in Texas first. A dormant judgment cannot be enforced anywhere. 5. Line up local counsel where the state requires it, and price it before you start — on a small judgment the domestication and local counsel can exceed the recovery. What defeats it: - A due-process attack on the original judgment. The enforcing state will not re-try the merits, but it will hear a challenge to personal jurisdiction or to service — which is why the service affidavit and the forum-selection record matter long after judgment. - Dormancy in Texas. - Bankruptcy. - A debtor with nothing to reach. In this program several judgments were domesticated, writs issued, and the sheriff reported the clinic closed or moved. A judgment is not a recovery, and a client is better served hearing that before the money is spent than after. Used in: The United Biologics program, for a former client — judgments taken in the Bexar County courts between 2014 and 2017 and then domesticated in the defendants’ home states for execution, including Louisiana, North Carolina, Maryland, Arizona and Delaware. In United Biologics v. Moss Street Medical Clinic, Inc. the Texas judgment was exemplified and filed in the 15th Judicial District Court, Lafayette Parish, Louisiana, as Cause No. 20154623L; the Clerk of Court mailed notice by certified mail, the signed return receipt came back, and once the response period had run the order making the judgment executory went to the court together with written instructions for the parish sheriff to levy on the clinic’s furniture, computers and office equipment. Some judgments in that program were collected and some were not — which is the ordinary distribution on any out-of-state collection docket. Q: What is domestication of a judgment? A: Filing a judgment rendered in one state with the court of another state so that it can be enforced there. Under the Uniform Enforcement of Foreign Judgments Act the filed judgment is treated the same as a judgment of the enforcing court. Q: Can the other state re-examine a Texas judgment? A: Not on the merits. Full faith and credit forecloses re-litigation of the underlying claim. The enforcing court can consider whether the rendering court had jurisdiction over the parties and the subject matter and whether the judgment is final. Q: How long does a judgment creditor have to domesticate? A: It depends on the enforcing state’s limitations period for foreign judgments and on whether the Texas judgment has gone dormant. Keeping the Texas judgment alive by timely issuing writs preserves the option. ---------------------------------------------------------------------- ### 43. Exemplification — the triple seal URL: https://www.jhenrylaw.com/mechanism/exemplification-the-triple-seal/ Authority: U.S. Const. art. IV, § 1; 28 U.S.C. § 1738 Q: What kind of copy of a Texas judgment does another state require? A: An exemplified one, not a certified one. Every domestication statute conditions filing on a judgment authenticated in accordance with the act of Congress, and the act of Congress requires three things: the clerk’s attestation, the seal of the court, and a certificate of a judge that the attestation is in proper form. A certified copy has two of the three. Quoted authority: “[Records] shall be proved or admitted in other courts within the United States … by the attestation of the clerk and seal of the court annexed, if a seal exists, together with a certificate of a judge of the court that the said attestation is in proper form.” Source: 28 U.S.C. § 1738 When it applies: Every judgment that is going to travel. It is a five-minute step at the clerk’s counter and it is the single most common reason a domestication gets struck. How it is proved up: 1. Ask the clerk for an exemplified copy and use the word. Say it again if the counter offers you a certified one, because that is what they hand out by default. 2. Count the certificates when it arrives. Clerk attests the record; judge certifies the clerk and that the attestation is in due and legal form; clerk certifies back that the judge is the judge of that court. In Texas practice you should see three, sometimes four. 3. Order it while the judgment is fresh. A defect discovered after a limitations period has run in the receiving state is not a detour, it is the end. 4. Check the judgment is final and not dormant in Texas before you spend the money. A dormant judgment cannot be enforced anywhere. 5. Keep the original package intact. Receiving clerks reject photocopies of exemplifications, which defeats the purpose of the seals. What defeats it: - A plain certified copy, which does not satisfy § 1738 and is subject to being struck on motion. - A judgment that is interlocutory rather than final — sever it first. - Dormancy. - A receiving state with its own additional authentication requirements, which some have. Used in: A Bexar County default judgment exemplified in August 2015 for filing in Louisiana: the county clerk’s attestation and seal, the county judge’s certificate that the court is a court of record and the clerk’s attestation is in due and legal form, and the clerk’s certificate that the judge is the judge. That package was filed in Lafayette Parish — the file-stamped petition is in the file — and was the predicate for the ex parte application to make the judgment executory. Q: What is the difference between a certified and an exemplified copy? A: A certified copy carries the clerk's attestation and the court's seal. An exemplified copy adds the third element 28 U.S.C. § 1738 requires — a judge's certificate that the clerk's attestation is in proper form — and, in Texas practice, a clerk's certificate that the signer is the judge. Q: Why does a judgment have to be exemplified to be domesticated? A: Because state enforcement statutes condition filing on a judgment 'authenticated in accordance with the act of Congress', which is 28 U.S.C. § 1738. A copy that does not meet its three-part requirement is subject to being struck. Q: How do you get an exemplified copy of a Texas judgment? A: Request one from the clerk of the court that rendered it, using the word 'exemplified'. The clerk routes it to a judge for the certificate, which is why it takes longer than a certified copy. ---------------------------------------------------------------------- ### 44. Making a Texas judgment executory in Louisiana URL: https://www.jhenrylaw.com/mechanism/judgment-executory-in-louisiana/ Authority: La. R.S. 13:4241 et seq.; La. Code Civ. Proc. art. 2541 Q: How do you enforce a Texas judgment against assets in Louisiana? A: Two routes, and they are not interchangeable. The Enforcement of Foreign Judgments Act is an ex parte filing: annex an authenticated copy to a petition praying the judgment be made executory, file the creditor’s affidavit, and the Clerk of Court mails notice to the debtor. Article 2541 is an ordinary contradictory proceeding producing a new Louisiana judgment. Tell them apart by who mails. Quoted authority: “No execution or other process for enforcement of a foreign judgment filed hereunder shall issue until thirty days after the mailing of the notice of the filing of the foreign judgment.” Source: La. R.S. 13:4243(C) When it applies: A Texas judgment and a debtor with a Louisiana clinic, warehouse, receivable or bank account. Louisiana is not a Uniform Act state in the way most of its neighbours are, and treating it like one is how the seizure gets dissolved. How it is proved up: 1. Use the ex parte route unless something requires otherwise. It is faster, and for a sister-state money judgment both routes are open. 2. Annex a properly authenticated copy — see the entry on exemplification, which is where these fail. 3. File the affidavit of names and last known addresses under § 4243(A). The Clerk mails notice from it. 4. Calendar thirty days from the Clerk’s mailing before any writ of fieri facias, garnishment or seizure. The bar is on issuance of execution, not on the court signing an order recognizing the judgment — but a seizure inside thirty days is the debtor’s best argument and it is a good one. 5. Write the instruction letter to the sheriff. It will be followed literally: identify the assets, state your position on payment, and give a defined window before seizure. What defeats it: - A judgment authenticated as a mere certified copy. - Execution issued inside the thirty days. - The debtor’s contradictory hearing under § 4244, raising any ground that would defeat enforcement of a Louisiana judgment — including a genuine attack on the rendering court’s jurisdiction. - A foreign-country judgment, which cannot use the ex parte route at all and must proceed by ordinary action. Used in: A Bexar County default judgment of $26,482.38 plus interest, exemplified and filed in the 15th Judicial District Court, Lafayette Parish, as Cause No. 20154623L. The Clerk of Court mailed notice by certified mail on 28 September 2015; the signed return receipt came back on 12 October; and the order making the judgment recorded and executory went to the court with written instructions to the parish sheriff identifying the furniture, computers and office equipment to be seized if the debtor would not pay or agree to a plan within three days of service. Q: How do you domesticate a Texas judgment in Louisiana? A: By annexing an authenticated copy to an ex parte petition under La. R.S. 13:4242 praying that the judgment be made executory, together with the affidavit required by § 4243(A). The Clerk of Court then mails notice to the judgment debtor. Q: How long must you wait before executing in Louisiana? A: Thirty days after the mailing of the notice of filing, under La. R.S. 13:4243(C). Note the clock runs from the Clerk's mailing, unlike Arizona, where it runs from the creditor's mailing and the filing of proof of it. Q: What is the difference between the Louisiana EFJA and article 2541? A: The Enforcement of Foreign Judgments Act is an ex parte filing in which the judgment is treated as a Louisiana judgment once filed. Article 2541 is an ordinary contradictory proceeding, with citation and service, producing a new Louisiana judgment. Foreign-country judgments must use the ordinary route. ---------------------------------------------------------------------- ### 45. Abstract of judgment and the judgment lien URL: https://www.jhenrylaw.com/mechanism/abstract-of-judgment-and-the-lien/ Authority: Tex. Prop. Code §§ 52.001–52.006 Q: How does a Texas judgment become a lien on the debtor's real property? A: By being abstracted, recorded and indexed in the county where the land is. Both steps are required and courts enforce both. The lien then attaches to the debtor’s non-exempt real property in that county, including property acquired after the recording — which is the quietly powerful part. Quoted authority: “[A] first or subsequent abstract of judgment, when it is recorded and indexed in accordance with this chapter, if the judgment is not then dormant, constitutes a lien on and attaches to any real property of the defendant … that is located in the county in which the abstract is recorded and indexed, including real property acquired after such recording and indexing.” Source: Tex. Prop. Code § 52.001 When it applies: Every judgment worth collecting, in every county where the debtor might own land now or later. It is cheap, passive, and it works while you are doing something else — a debtor who wants to sell or refinance has to deal with you. How it is proved up: 1. File in every county where the debtor might own or acquire property, not only where they live. The lien is county by county. 2. Confirm the abstract was indexed, not merely recorded. Ask the county clerk for the index entry, because recording alone creates nothing. 3. Get the § 52.003 contents right — the parties’ names, the birthdate and the last three digits of the driver’s license where available to the clerk. A defective abstract creates no lien at all. 4. Re-abstract as the debtor acquires property in new counties, and watch the ten-year life under § 52.006. 5. Understand what it is for. Most abstracts are never executed on; they are paid at a closing years later, which is a perfectly good outcome. What defeats it: - Homestead. The lien does not merely fail to be enforceable — it never attaches. It can still cloud title in practice, which is where its leverage comes from, and a release is usually demanded at closing. - Personal property, which an abstract does not reach at all. That is what execution and garnishment are for. - A defective abstract, which is not curable retroactively. - Dormancy, which ends the lien under § 52.006. Used in: The routine first step after any judgment worth collecting, filed alongside the writ rather than instead of it. The entries on execution and dormancy in this catalog are the other two-thirds of the same practice. Q: What creates a judgment lien on real property in Texas? A: Recording and indexing an abstract of judgment in the county where the property is located, provided the judgment is not dormant. Both recording and indexing are required. Q: Does a Texas judgment lien attach to a homestead? A: No. The lien does not attach to property exempt from seizure or forced sale under Chapter 41 of the Property Code or the Texas Constitution, which includes the homestead. Q: How long does a Texas judgment lien last? A: Ten years from the date the abstract is recorded and indexed, under Tex. Prop. Code § 52.006, and it ceases if the judgment becomes dormant. ---------------------------------------------------------------------- ### 46. Reviving a dormant judgment URL: https://www.jhenrylaw.com/mechanism/reviving-a-dormant-judgment/ Authority: Tex. Civ. Prac. & Rem. Code §§ 34.001, 31.006; Tex. R. Civ. P. 627, 628 Q: What happens to a Texas judgment nobody has executed on for ten years? A: It goes dormant, and then it goes away. No writ within ten years of rendition and execution may not issue unless the judgment is revived; revival is by scire facias or an action of debt, and it must be brought within two years of dormancy. Twelve years is the outer limit of one cycle of inattention, and it is how large judgments quietly die. Quoted authority: “A dormant judgment may be revived by scire facias or by an action of debt brought not later than the second anniversary of the date that the judgment becomes dormant.” Source: Tex. Civ. Prac. & Rem. Code § 31.006 When it applies: Any judgment held rather than worked — the debtor who left the state, the file that closed when the client stopped calling, the portfolio bought at a discount and put in a drawer. How it is proved up: 1. Calendar the ten-year date the day the judgment is signed, and again the day each writ issues. Nobody’s calendar owns this date by default, which is exactly why it is missed. 2. Know the second clock in § 34.001(b): if a first writ issues in time but no second writ issues within ten years of the first, the judgment goes dormant then. 3. Issue a writ rather than reviving if you still can. A writ is a form; a revival is a proceeding. 4. Plead the judgment, its finality and the dates precisely on a scire facias. The defendant’s answer is usually limitations, and the dates decide it. 5. Check dormancy before spending anything on domestication or an abstract. A dormant judgment cannot be enforced anywhere, and the receiving state will not fix it. What defeats it: - The two-year revival window, which is hard. Miss it and the judgment is not unenforceable — it is gone. - A judgment that was never final, which never started the clock and may still need severance. - Bankruptcy discharge of the underlying debt. - Nothing else, really. This is a mechanism that is lost to calendars rather than to argument. Used in: The reason the collection entries in this catalog keep returning to dates. On a docket of judgments taken across several years and several states, the ten-year date is the asset — and the answer is always the same, which is to calendar it at signing rather than to discover it later. Q: When does a Texas judgment become dormant? A: If a writ of execution is not issued within 10 years after rendition, under Tex. Civ. Prac. & Rem. Code § 34.001(a). If a first writ issues but a second does not issue within 10 years of the first, the judgment becomes dormant at that point. Q: How do you revive a dormant judgment in Texas? A: By scire facias or by an action of debt, brought not later than the second anniversary of the date the judgment became dormant. Tex. Civ. Prac. & Rem. Code § 31.006. Q: How soon after judgment can a writ of execution issue? A: Thirty days after the judgment is signed under Tex. R. Civ. P. 627, or earlier under Rule 628 on an affidavit that the defendant is about to remove, transfer or secrete property to defraud creditors. ---------------------------------------------------------------------- ### 47. Piercing the veil on a contract claim URL: https://www.jhenrylaw.com/mechanism/piercing-the-veil-on-a-contract-claim/ Authority: Tex. Bus. Orgs. Code § 21.223(a)(2), (b); § 101.002 Q: When can a Texas creditor hold an owner liable for the company's contract debt? A: Almost never, and the statute says so. On a contractual obligation, alter ego, sham to perpetrate a fraud, constructive fraud and any similar theory are all foreclosed. The only door is actual fraud on the obligee, perpetrated primarily for the direct personal benefit of the person you are suing. Both halves of that are load-bearing. Quoted authority: “[Subsection (a)(2)] does not prevent or limit the liability of a holder … if the obligee demonstrates that the holder … caused the corporation to be used for the purpose of perpetrating and did perpetrate an actual fraud on the obligee primarily for the direct personal benefit of the holder …” Source: Tex. Bus. Orgs. Code § 21.223(b) When it applies: The undercapitalised entity that signed the contract, the owner who took distributions while the payables aged, the shell that was never more than a name on a signature block. It applies to limited liability companies through § 101.002. How it is proved up: 1. Plead actual fraud, and plead it with particularity. Constructive fraud is expressly insufficient and pleading it as alter ego wastes the count. 2. Prove direct personal benefit, which is where these fail. Money that went to the company is not a direct personal benefit to the owner, however much the owner controlled the company. 3. Trace the transfers. Distributions, loans to the principal, personal expenses paid from company accounts, the house bought in the same quarter the payables stopped moving. 4. Consider the fraudulent-transfer count instead or as well. TUFTA reaches the transfer without requiring the veil to be pierced, and it has its own remedies. 5. Remember this is a contract-claim limitation. The statute does not shield tort claims the same way. What defeats it: - Constructive fraud, expressly excluded. - Benefit to the company rather than to the individual. - Observance of corporate formalities, which is not required for liability but is powerful evidence against the narrative. - A creditor that dealt with the entity knowing exactly what it was, which undercuts reliance. Used in: Chiefly as the reason to plead something else. On a collection docket the veil count is usually the weakest one in the petition, and the transfers that motivated it are better reached under Chapter 24 — which is the next entry over. Q: Can you pierce the corporate veil on a breach of contract claim in Texas? A: Only by showing actual fraud on the obligee, perpetrated primarily for the direct personal benefit of the owner. Tex. Bus. Orgs. Code § 21.223(a)(2) forecloses alter ego, sham to perpetrate a fraud, constructive fraud and similar theories for contractual obligations. Q: Does the Texas veil-piercing statute apply to LLCs? A: Yes. Section 101.002(a) applies §§ 21.223 through 21.226 to limited liability companies and their members, owners, assignees and affiliates. Q: Is failure to observe corporate formalities enough to pierce the veil in Texas? A: No. Tex. Bus. Orgs. Code § 21.223(a)(3) provides that the failure to observe corporate formalities is not a ground for holding a holder liable for a contractual obligation. ---------------------------------------------------------------------- ### 48. Charging order against an LLC membership interest URL: https://www.jhenrylaw.com/mechanism/charging-order-llc-membership/ Authority: Tex. Bus. Orgs. Code § 101.112; § 153.256 (limited partnerships) Q: How does a judgment creditor reach a debtor's interest in a Texas LLC? A: With a charging order, and with nothing else. Section 101.112 lets a court charge the membership interest of a judgment debtor, and Subsection (d) makes that the exclusive remedy — there is no execution on the interest, and the lien may not be foreclosed. What the creditor gets is the right to receive distributions the debtor would otherwise have taken, and no more. Quoted authority: “The entry of a charging order is the exclusive remedy by which a judgment creditor of a member or of any other owner of a membership interest may satisfy a judgment out of the judgment debtor’s membership interest.” Source: Tex. Bus. Orgs. Code § 101.112(d) When it applies: A judgment debtor whose real wealth is held in entities rather than in accounts — the closely held operating company, the single-purpose real estate LLC, the professional practice. It is the answer when post-judgment discovery turns up membership interests and nothing else worth levying on. How it is proved up: 1. Identify the entity and the interest before you file. The entity’s Public Information Report, filed with the Comptroller, lists officers and directors and in practice names the members of a member-managed company — but it is corroboration, not proof. A manager-managed company’s report may name no member at all, and percentages are never disclosed for an individual. 2. Prove the interest with post-judgment discovery under Tex. R. Civ. P. 621a — the company agreement, the membership ledger, the K-1s. That is what establishes the interest and its size. 3. Ask for the three things the order should say: that the interest is charged with payment of the judgment, that the company is to deliver any distribution otherwise due the debtor to your office, and that the order constitutes a lien on the interest. 4. Serve the company as well as the debtor. The company is the one that has to comply, and an order it never received is an order nobody follows. 5. Set the expectation with the client first. A charging order is a claim on distributions, not on the business, and a debtor who controls the entity can simply stop distributing. What defeats it: - An entity that never distributes. The remedy is deliberately weak, and a debtor who also manages the company can wait you out — while the creditor may be allocated taxable income it never received. - Any attempt to go further. Foreclosure of the lien is barred by § 101.112(c), and § 101.112(f) forecloses reaching the company’s own property. - Exemption laws, preserved by § 101.112(e). - An interest that was transferred before the judgment. The charging order reaches what the debtor owns when it is entered, which is why the timing of the transfer is worth discovery of its own. Used in: Integrated Metal Products, Inc. v. Freehill · Cause No. 11-1939-CC4, County Court at Law No. 4, Williamson County. Suit filed on a breach of contract in November 2011; the defendant was served and never answered; default judgment of $37,121.94 inclusive of fees. The judgment was then satisfied out of his membership interest in an LLC by a signed charging order directing the company to deliver any distribution otherwise due him to this office, and declaring the order a lien on the interest. Q: Is a charging order the only way to reach an LLC interest in Texas? A: Yes. Tex. Bus. Orgs. Code § 101.112(d) makes it the exclusive remedy by which a judgment creditor may satisfy a judgment out of a membership interest. The same is true of a limited partnership interest under § 153.256. Q: Can a charging order lien be foreclosed in Texas? A: No. Section 101.112(c) provides that the charging order constitutes a lien on the interest and that the lien may not be foreclosed on under the Business Organizations Code or any other law. The creditor waits for distributions. Q: Does a charging order apply to a single-member LLC? A: Yes. Section 101.112(g), added in 2023, states that the section applies to both single-member and multiple-member limited liability companies. The Legislature described the amendment as intended only to clarify existing law rather than to change it. ---------------------------------------------------------------------- ### 49. Post-judgment discovery URL: https://www.jhenrylaw.com/mechanism/post-judgment-discovery-621a/ Authority: Tex. R. Civ. P. 621a Q: What discovery can a judgment creditor take after judgment in Texas? A: All of it. Rule 621a lets the successful party initiate, in the same cause, any discovery proceeding the rules authorize for pre-trial matters, for the purpose of obtaining information to aid enforcement — interrogatories, requests for production, depositions on written questions, oral depositions of the debtor and of third parties who hold its records. Quoted authority: “At any time after rendition of judgment, and so long as said judgment has not been suspended by a supersedeas bond or by order of a proper court and has not become dormant as provided by Section 34.001, Civil Practice and Remedies Code, the successful party may, for the purpose of obtaining information to aid in the enforcement of such judgment, initiate and maintain in the trial court in the same suit in which said judgment was rendered any discovery proceeding authorized by these rules for pre-trial matters.” Source: Tex. R. Civ. P. 621a When it applies: Every judgment you intend to collect, and it should be the first thing served rather than the last. A writ issued against an address nobody checked comes back nulla bona; discovery first tells you where to send it. How it is proved up: 1. Serve it early. The information decides which remedy is worth the filing fee — garnishment, execution, turnover, or a charging order — and each of those is a wasted motion without it. 2. Ask about entities, not just accounts. Membership interests, receivables, affiliated companies with the same principal, and transfers made after suit was filed are the questions that produce recoveries. 3. Rights inure to successors and assignees, so a purchaser of the judgment takes the discovery rights with it. 4. When the responses do not come, move to compel and ask for the objections to be held waived under Tex. R. Civ. P. 193.2(e) rather than arguing each one. Fees are available under Rule 215.1(d). 5. Calendar the dormancy date the day the judgment is signed. Rule 621a is cut off by dormancy, and a judgment that goes dormant takes the discovery rights with it. What defeats it: - A supersedeas bond, which suspends enforcement and with it the discovery. - Dormancy under Tex. Civ. Prac. & Rem. Code § 34.001 — ten years without a writ, revivable for two more by scire facias and then not at all. - A court that will not set the motion to compel. It happens, and the answer is not to keep re-noticing it — the refusal itself can become the affidavit predicate for a garnishment, which is a remedy the clerk issues rather than the judge. - A debtor who answers honestly and owns nothing. That answer is worth having early rather than late. Used in: Murphy v. Liberty Hill Construction, LLC and McGrath · Cause No. 25-0131-C26, 26th Judicial District Court, Williamson County. Counsel for the judgment creditors. Post-judgment interrogatories and requests for production served under Rule 621a on 13 March 2026, a week after the final judgment. Nothing came back — no responses, no objections, no privilege log, no request for an extension. On 27 May 2026 the court signed two orders: one compelling full sworn responses within seven days and holding all objections waived, including privilege, with expenses under Rule 215.1(d); the other granting turnover and appointing a receiver on findings that the judgment debtors were dissipating their estate — selling personal property online and signing two intra-family warranty deeds the day after the judgment was signed. Q: When can post-judgment discovery begin in Texas? A: At any time after rendition of judgment, under Tex. R. Civ. P. 621a. It does not wait for the judgment to become final or for the plenary power to expire. Q: Does a supersedeas bond stop post-judgment discovery? A: It stops discovery in aid of enforcement. Rule 621a separately permits either party to take discovery relevant to the motions and matters covered by Tex. R. App. P. 24, which governs suspension of enforcement pending appeal. Q: What happens to post-judgment discovery if the judgment goes dormant? A: It is cut off. Rule 621a is available only so long as the judgment has not become dormant under Tex. Civ. Prac. & Rem. Code § 34.001, which is ten years from rendition without a writ of execution. ---------------------------------------------------------------------- ### 50. Post-judgment garnishment URL: https://www.jhenrylaw.com/mechanism/post-judgment-garnishment/ Authority: Tex. Civ. Prac. & Rem. Code § 63.001; Tex. R. Civ. P. 657–679 Q: How do you garnish a judgment debtor's accounts or receivables in Texas? A: On a valid subsisting judgment, an affidavit that within the plaintiff’s knowledge the debtor does not have property in Texas subject to execution sufficient to satisfy it, and a bond. The writ issues from the clerk and binds whatever the garnishee owes the debtor as of service — which is why garnishment reaches receivables and affiliated entities, not only banks. Quoted authority: “A writ of garnishment is available if … a plaintiff has a valid, subsisting judgment and makes an affidavit stating that, within the plaintiff’s knowledge, the defendant does not possess property in Texas subject to execution sufficient to satisfy the judgment.” Source: Tex. Civ. Prac. & Rem. Code § 63.001(3) When it applies: A debtor who banks somewhere you can identify, or who is owed money by entities you can name. It is the fastest of the post-judgment remedies because the clerk issues the writ — there is no hearing to set and no judge to persuade. How it is proved up: 1. Get the affidavit exactly right. Garnishment is strictly construed and the affidavit is the jurisdictional document; a defect in it is not amendable in the way an ordinary pleading defect is. 2. Say how you know the debtor lacks sufficient property — the post-judgment discovery served, the responses not received, the writ returned nulla bona. “Within plaintiff’s knowledge” is a statement about your own diligence and it should be able to survive being tested. 3. Name each garnishee separately and serve each one. The writ binds what that garnishee holds at service, so a garnishee served a week late may hold nothing. 4. Expect the garnishee to answer rather than pay. Budget for the garnishee’s attorney’s fees, which are commonly taxed against the funds. 5. Consider entities, not just banks. A judgment debtor who runs receipts through single-purpose companies is owed money by them, and those debts are garnishable. What defeats it: - Current wages, which are exempt under Tex. Const. art. XVI, § 28 — the single biggest limit on garnishment in Texas and the reason it is a commercial remedy rather than a consumer one. - A defective affidavit, which is fatal rather than curable. - An account held jointly or in another’s name, which invites a claim by the third party and a trial of ownership. - A garnishee that owed nothing on the day of service. Timing is everything and there is no lien on future obligations. Used in: Walker v. Bank of Texas (garnishee), judgment debtor Gallardo · Cause No. D-1-GN-15-000708, 53rd Judicial District Court, Travis County. Counsel for the judgment creditor and garnishor. Writ issued February 2015 on a $686,095.00 judgment with $136,344.00 of principal unpaid; the bank answered that it held $1,767.97 across two accounts; the judgment debtor was served under Rule 663a and never appeared. Judgment in garnishment signed 27 May 2016 for $967.97, with $800.00 awarded to the garnishee for its fees under Rule 677 and the writ dissolved. Those numbers are the honest measure of the remedy: it captures what the garnishee holds on the day it is served, and the garnishee gets paid first. Q: Can you garnish wages in Texas? A: Not current wages for personal services, which are exempt under article XVI, section 28 of the Texas Constitution. Wages already paid and deposited lose that character, which is why garnishment of a bank account can reach what garnishment of the employer cannot. Q: Do you need a judgment to garnish in Texas? A: Not always. Section 63.001(3) is the post-judgment ground, but subsections (1) and (2) support garnishment before judgment where an original attachment has issued or where the plaintiff sues for a debt and makes the required affidavit. Q: What does a writ of garnishment actually capture? A: What the garnishee owes the debtor, and what of the debtor’s property the garnishee holds, as of service of the writ. It is a snapshot, not a continuing lien. ---------------------------------------------------------------------- ### 51. Execution sale of real property URL: https://www.jhenrylaw.com/mechanism/execution-sale-of-real-property/ Authority: Tex. R. Civ. P. 621–656; Tex. R. Civ. P. 627, 628 Q: How does a judgment creditor force the sale of a debtor's real property in Texas? A: Writ of execution, levy, notice, sale. Thirty days after the judgment is signed the clerk issues the writ; the constable levies on non-exempt real property; notice of sale is posted and served; and the property is struck off to the highest bidder at the courthouse door on the first Tuesday of the month. It is the remedy people talk about and rarely finish. Quoted authority: “If a writ of execution is not issued within 10 years after the rendition of a judgment of a court of record or a justice court, the judgment is dormant and execution may not be issued on the judgment unless it is revived.” Source: Tex. Civ. Prac. & Rem. Code § 34.001(a) When it applies: A debtor with real property that is not homestead and not fully encumbered. It is also the remedy that makes the others credible — a debtor who has watched a constable post a notice of sale negotiates differently. How it is proved up: 1. Wait the thirty days. Rule 627 has the clerk issue execution after the expiration of thirty days from the signing of the judgment, or thirty days after a timely new-trial motion is overruled. Rule 628 allows earlier issuance only on affidavit that the defendant is about to remove, transfer or secrete property to defraud creditors. 2. Write the instruction letter as though the constable will do exactly what it says, because that is what happens. Identify the property, state your position on payment, and give the debtor a defined window before seizure. 3. Check the title before you levy. A property under water helps nobody, and the sale still costs the creditor the fees. 4. Confirm the homestead position early. A homestead is not merely hard to reach; the judgment lien never attaches to it. 5. Calendar the dormancy date. Ten years without a writ and the judgment is dormant; two years after that and it cannot be revived at all. What defeats it: - Homestead, which is the usual answer on residential property. - Prior liens that exhaust the equity, so that the sale produces nothing for the judgment creditor. - A bankruptcy petition, which stops the sale where it stands under 11 U.S.C. § 362. - Supersedeas, which suspends enforcement pending appeal. Used in: AAT Bioquest, Inc. v. Texas Fluorescence Laboratories, Inc. · Cause No. D-1-GN-16-001929, 261st Judicial District Court, Travis County. Order of sale issued by the clerk; the constable levied on approximately 2.16 acres in March 2017; notice of sale issued and the sale was set for the first Tuesday in May at the Travis County courthouse. The debtor filed Chapter 11 before the sale — which is itself the ordinary end of a well-run execution, and the reason the next category exists. Q: How long after judgment can you execute in Texas? A: Thirty days after the judgment is signed, under Tex. R. Civ. P. 627, or thirty days after a timely motion for new trial is overruled by order or by operation of law. Rule 628 permits earlier execution on an affidavit that the defendant is about to defraud creditors. Q: When are execution sales held in Texas? A: Real property is sold at public auction at the county courthouse on the first Tuesday of the month, between 10 a.m. and 4 p.m., after notice given as the rules require. Q: What happens if the debtor files bankruptcy before the sale? A: The automatic stay under 11 U.S.C. § 362 halts the sale. A sale conducted in violation of the stay is void or voidable, so the constable must be told the moment a petition is filed. ---------------------------------------------------------------------- ## On the other side of the motion ### 52. Defeating summary judgment URL: https://www.jhenrylaw.com/mechanism/defeating-summary-judgment/ Authority: Tex. R. Civ. P. 166a Q: How do you defeat a motion for summary judgment in Texas? A: 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. Quoted authority: “No judgment will be granted except on the grounds stated under (b)(2)(C) and (b)(2)(D).” Source: Tex. R. Civ. P. 166a(h)(1), effective March 1, 2026 When it applies: Any dispositive motion set against your client. The response window is short — twenty-one days after the motion is filed, for a motion filed on or after March 1, 2026, and seven days before the hearing under the former rule — and the work is front-loaded into assembling admissible evidence rather than writing. How it is proved up: 1. Enumerate the grounds from the motion and answer each one under its own heading. Nothing gets skipped. 2. Attach competent evidence — declarations with personal knowledge and underlying facts, authenticated documents, deposition excerpts. A scintilla is enough, but it must be admissible. 3. Object in writing to the movant's evidence and set the objections for the same hearing, so the record is not one-sided. 4. Where discovery is genuinely incomplete, file the affidavit or declaration Rule 166a(d)(3) calls for, specifying why you cannot present facts essential to the opposition. Under the former rule this was the 166a(g) continuance; the current provision lets the court extend the response deadline, deny the motion without prejudice, or enter another appropriate order. 5. Where the motion is a no-evidence motion, check first whether it identifies elements with the specificity the rule requires. Many do not. What defeats it: - Conclusory declarations, which are no evidence at all. - Missing the deadline. A late response requires leave, and leave is not guaranteed. - Failing to address a ground, which forecloses complaint about it later. Used in: Salt & 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. Q: How long do I have to respond to a summary judgment motion in Texas? A: The response is due not later than seven days before the day of the hearing, except on leave of court. The motion itself must be served at least 21 days before the hearing. Q: How much evidence is needed to defeat summary judgment in Texas? A: More than a scintilla — evidence that rises to a level enabling reasonable and fair-minded people to differ in their conclusions. The evidence is viewed in the light most favorable to the non-movant. Q: What happens if I do not respond to one of the grounds in the motion? A: That ground stands unchallenged. On appeal, a non-movant generally may not raise issues not expressly presented to the trial court in a written response, other than the legal sufficiency of the movant's own summary judgment proof. ---------------------------------------------------------------------- ### 53. Verified denial — defect of parties URL: https://www.jhenrylaw.com/mechanism/verified-denial-defect-of-parties/ Authority: Tex. R. Civ. P. 93 Q: When must a denial be verified under Texas Rule of Civil Procedure 93? A: 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. Quoted authority: “A pleading setting up any of the following matters, unless the truth of such matters appears of record, shall be verified by affidavit … 4. That there is a defect of parties, plaintiff or defendant.” Source: Tex. R. Civ. P. 93 When it applies: Most often when a vendor sues the wrong member of a corporate family — the contracts run to two affiliated operating entities and the plaintiff has named the parent, or the brand, or the wrong affiliate. A verified answer puts the burden back before a dollar of merits work is done. How it is proved up: 1. Identify the actual contracting parties and attach the contracts showing it. 2. Verify the answer — a sworn statement from someone with knowledge of the corporate structure, not a certificate from counsel. 3. Plead the specific Rule 93 subsection rather than a general reference to the rule. 4. Where the correct entity is a client too, decide early whether to name it, because limitations may be running. What defeats it: - Truth appearing of record already, which excuses verification. - An amended petition naming the right entity, which cures the defect if limitations permits. - Alter ego, single business enterprise or assumed-name theories that reach the named defendant anyway. Used in: Vendor 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. Q: What must be verified under Rule 93 in Texas? A: Among others: that a party is not liable in the capacity sued, that there is a defect of parties, denial of a partnership or corporate existence as alleged, denial of the execution of a written instrument, denial of an account, and that a contract sued on is usurious. Q: What happens if a Rule 93 plea is not verified? A: It is waived. A general denial does not raise these matters, and raising them for the first time at trial or on appeal is too late. Q: Can a defect of parties be cured by amendment? A: Yes, if the plaintiff amends to name the correct party and limitations has not run. That is why the verified denial is most valuable filed early — it forces the correction while the calendar still matters. ---------------------------------------------------------------------- ### 54. Dismissal for want of prosecution, on defense URL: https://www.jhenrylaw.com/mechanism/dismissal-for-want-of-prosecution-defense/ Authority: Tex. R. Civ. P. 165a; the court's inherent power Q: Can a defendant get a Texas lawsuit dismissed for want of prosecution? A: 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. Quoted authority: “Any case not disposed of within time standards promulgated by the Supreme Court under its Administrative Rules may be placed on a dismissal docket.” Source: Tex. R. Civ. P. 165a; the court's inherent power When it applies: Stale collection suits, insurer subrogation files, and any plaintiff that filed to toll limitations and then stopped. It costs the defense almost nothing and it disposes of cases that would otherwise sit. How it is proved up: 1. Track the docket. The mechanism only works if you know when the notice of intent to dismiss issues. 2. Do not stipulate to resets or agreed continuances that supply the plaintiff with the diligence it lacks. 3. Where a dismissal setting exists, appear. A plaintiff who does not is dismissed. 4. Keep the clerk's notices and the dismissal order in the file — the record of the disposition is what closes the matter out. What defeats it: - A verified motion to retain by an attentive plaintiff, which is usually granted. - Reinstatement, which is available on the same accident-or-mistake standard and does happen — one such dismissal in a Williamson County matter was later reinstated after the plaintiff served disclosures. - Dismissal is without prejudice, so limitations may still permit refiling. Used in: Insurer'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. Q: Is a dismissal for want of prosecution with or without prejudice? A: Without prejudice. It is not an adjudication on the merits, so the claim may be refiled if limitations has not run. Q: Can a defendant move to dismiss for want of prosecution? A: Yes. A defendant may bring the plaintiff's inactivity to the court's attention and ask that the case be placed on the dismissal docket, and the court also acts on its own motion under Rule 165a and its inherent authority. Q: How is a dismissal for want of prosecution undone? A: By a verified motion to reinstate filed within 30 days of the dismissal order, on a showing that the failure was not intentional or the result of conscious indifference. ---------------------------------------------------------------------- ### 55. Special exceptions — group pleading and fraud particularity URL: https://www.jhenrylaw.com/mechanism/special-exceptions-group-pleading/ Authority: Tex. R. Civ. P. 45, 47, 90, 91; Stone v. Lawyers Title Ins. Corp., 554 S.W.2d 183 (Tex. 1977) Q: What do you do about a petition that pleads fraud against 'all Defendants' collectively? A: 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. Quoted authority: “A special exception shall not only point out the particular pleading excepted to, but it shall also point out intelligibly and with particularity the defect, omission, obscurity, duplicity, generality, or other insufficiency in the allegations in the pleading excepted to.” Source: Tex. R. Civ. P. 91 When it applies: Multi-defendant commercial cases, securities and investment disputes, anything with a fraud count and a long list of defendants. The more parties there are, the more likely the pleading is collective and the less likely anyone has tested it. How it is proved up: 1. Point out the defect with particularity, as Rule 91 requires of your own exception. A special exception that is itself general is a gift to the other side. 2. Take the counts one at a time and show, for each, what this defendant is alleged to have done. The exercise is what makes the collective pleading visible to the court. 3. Ask for a specific repleading period — 21 days is customary — and for dismissal of any count not repleaded. 4. Set it for hearing. Special exceptions left pending do nothing, and courts do not rule on them sua sponte. 5. Use what comes back. A plaintiff forced to commit to who said what and when has narrowed its own case, and the amended pleading is a discovery roadmap. What defeats it: - A petition that already pleads with particularity, where the exception simply reads as delay. - A court that prefers to let discovery sort it out, which some do. - Curable defects, which they usually are. Special exceptions produce a better pleading far more often than they produce a dismissal. - Failing to obtain a ruling, which waives the complaint. Used in: Zhang 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. Q: Does Texas require fraud to be pleaded with particularity? A: Yes. A fraud claim must be pleaded with sufficient particularity to give fair notice of the misrepresentation relied on — the who, what, when and why — rather than as a legal conclusion. Q: What is group pleading and why is it objectionable? A: Pleading allegations against 'all Defendants' collectively without specifying what each defendant is alleged to have done. It fails the fair-notice standard because an individual defendant cannot tell what claim it must answer. Q: What happens if special exceptions are sustained in Texas? A: The pleader is ordinarily given an opportunity to replead. Dismissal follows only if the party refuses to amend or the defect cannot be cured. ---------------------------------------------------------------------- ### 56. Opposing a pre-judgment receiver URL: https://www.jhenrylaw.com/mechanism/opposing-a-pre-judgment-receiver/ Authority: Tex. Civ. Prac. & Rem. Code ch. 64; Tex. R. Civ. P. 695; Jones v. Strayhorn, 321 S.W.2d 290 (Tex. 1959) Q: Can a Texas court appoint a receiver over a business before anyone has won? A: 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. Quoted authority: “Receivership is one of the harshest remedies known to the law.” Source: Jones v. Strayhorn, 159 Tex. 421, 321 S.W.2d 290, 294 (Tex. 1959) When it applies: The application filed alongside a fraud petition, the partnership dispute where one side wants the other out of the building, the investor suit that seeks control before liability. It is a pressure tactic more often than a remedy. How it is proved up: 1. Lead with the standard rather than the facts. Extraordinary circumstances and no adequate alternative remedy is a high bar, and applicants frequently plead as though it were a balancing test. 2. Identify the lesser remedy available — an accounting, a temporary injunction, an agreed escrow, a bond. The existence of one is close to dispositive. 3. Insist on Rule 695 notice. Except where the statute allows otherwise, a receiver over property may not be appointed without notice to the adverse party. 4. Attack the applicant’s standing to the specific property. Receivership statutes are property-specific and applications are often drafted to sweep in everything the defendant owns. 5. Put the harm on the record — payroll, customer contracts, licenses, financing covenants that a receivership breaches. Courts respond to concrete consequences. What defeats it: - Genuine dissipation of assets that nothing else will stop. - A statutory ground squarely met, which the harshness language does not override. - A defendant whose own conduct — spoliation, transfers to insiders, defiance of orders — supplies the extraordinary circumstances. - A record that never confronts the alternative remedies. Used in: An 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. Q: When can a Texas court appoint a receiver before judgment? A: Only in the circumstances chapter 64 of the Civil Practice and Remedies Code allows, and only where the property is in danger of being lost, removed or materially injured and no other adequate remedy exists. It is treated as an extraordinary remedy. Q: Is notice required before a receiver is appointed in Texas? A: Tex. R. Civ. P. 695 requires notice to the adverse party before a receiver may be appointed to take charge of property, except where a statute provides otherwise. Q: What is the difference between a pre-judgment and a post-judgment receiver? A: A post-judgment receiver under Tex. Civ. Prac. & Rem. Code § 31.002 aids collection of an established judgment. A pre-judgment receiver takes control of property before anyone has been found liable, which is why the standard is far higher. ---------------------------------------------------------------------- ### 57. Attacking the damages after a post-answer default URL: https://www.jhenrylaw.com/mechanism/legal-sufficiency-after-post-answer-default/ Authority: Stoner v. Thompson, 578 S.W.2d 679 (Tex. 1979) Q: Does a defendant who fails to appear at trial admit the damages in Texas? A: 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. Quoted authority: “A post-answer 'default' constitutes neither an abandonment of defendant's answer nor an implied confession of any issues thus joined by the defendant's answer. Judgment cannot be entered on the pleadings, but the plaintiff in such a case must offer evidence and prove his case as in a judgment upon a trial.” Source: Stoner v. Thompson, 578 S.W.2d 679, 682 (Tex. 1979) When it applies: The client who lost the file, changed counsel, or simply did not show. Also the client who did show, lost, and is looking at a damages number nobody supported — the same sufficiency review applies. How it is proved up: 1. Read the reporter’s record of the prove-up before anything else. A short uncontested hearing often contains a witness stating a total and nothing that ties it to a document. 2. Separate the categories. Restoration versus diminution in value, direct versus consequential, prejudgment interest — each has its own measure and each has to be supported. 3. Attack the fee award on the same record. A total asserted without hours, rates and tasks does not meet the lodestar proof requirements, and fees are frequently the softest number in the judgment. 4. Ask for rendition, not remand, where there is no evidence at all. Legally insufficient evidence supports rendition of a take-nothing judgment; factually insufficient evidence gets a new trial. 5. Preserve it properly. Legal sufficiency after a bench trial may be raised for the first time on appeal, but the safer course is a motion for new trial that says so. What defeats it: - A prove-up that was actually done properly, with documents and a witness who ties the numbers to them. - Liquidated damages proved by written instrument, where the amount follows from the contract. - A record where the defendant did participate, which changes the posture entirely. - Waiver — complaints about the form of the judgment that were never raised below. Used in: Tabers 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. Q: What is a post-answer default judgment in Texas? A: A judgment entered when a defendant has filed an answer but fails to appear at trial. It differs from a no-answer default because the answer remains on file and puts the plaintiff's allegations at issue. Q: Does the plaintiff have to prove damages at a post-answer default? A: Yes. Under Stoner v. Thompson the plaintiff must offer evidence and prove its case as in any trial. Judgment cannot be rendered on the pleadings. Q: What relief does an appellate court give for legally insufficient damages evidence? A: Where there is no evidence to support the award, the appellate court renders judgment rather than remanding. Factually insufficient evidence results in a remand for new trial. ---------------------------------------------------------------------- ### 58. Verified denial of a sworn account URL: https://www.jhenrylaw.com/mechanism/verified-denial-of-a-sworn-account/ Authority: Tex. R. Civ. P. 185; Tex. R. Civ. P. 93(10) Q: How do you defend a suit on a sworn account in Texas? A: 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. Quoted authority: “[H]e shall not be permitted to deny the claim, or any item therein, unless he files a written denial, under oath.” Source: Tex. R. Civ. P. 185 When it applies: Suits on open accounts between the parties to the transaction — goods sold and delivered, services rendered, materials furnished. The first question is always whether this is one of those, because a great many petitions styled as sworn accounts are not. How it is proved up: 1. Check the scope before drafting the denial. Rule 185 applies only to transactions in which there is a sale upon one side and a purchase upon the other — which is why assigned credit-card debt is generally not a sworn account, no title to personal property having passed. 2. Verify the denial. Rule 93(10) requires a verified pleading denying an account that is the foundation of the action, and an unverified denial leaves the prima facie case standing. 3. Deny the items, not the conclusion. A denial that the account is just and true in whole or in part, sworn to on personal knowledge, is what destroys the evidentiary effect. 4. Have the right person swear it. A verification by counsel without personal knowledge is a recurring and fatal defect. 5. Once the prima facie effect is gone, make them prove the contract, the delivery and the prices the ordinary way — which is frequently where these cases actually end. What defeats it: - A verification defect on your own denial, which restores the plaintiff’s prima facie case. - A petition that genuinely satisfies Rule 185 and an affidavit that genuinely satisfies it. - A late-filed denial, after judgment has been taken on the pleadings. - Denying the account while admitting the underlying purchases in discovery. Used in: On 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. Q: What is a sworn account in Texas? A: A claim founded on an open account or other claim for goods sold and delivered, or services or materials furnished, supported by an affidavit. Rule 185 makes a properly pleaded and verified account prima facie evidence of the debt. Q: Does a general denial defeat a sworn account? A: No. Rule 185 requires a written denial under oath, and Rule 93(10) requires a verified pleading. A general denial leaves the prima facie effect intact. Q: Is credit-card debt a sworn account in Texas? A: Generally no. Rule 185 has been held to apply only to transactions in which there is a sale on one side and a purchase on the other, and a credit-card balance does not involve title to personal property passing from the plaintiff to the defendant. ---------------------------------------------------------------------- ## When the debtor files bankruptcy ### 59. Relief from the automatic stay URL: https://www.jhenrylaw.com/mechanism/relief-from-the-automatic-stay/ Authority: 11 U.S.C. § 362; Fed. R. Bankr. P. 4001 Q: What happens to a Texas judgment or lawsuit when the debtor files bankruptcy? A: 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. Quoted authority: “[A] petition filed under section 301, 302, or 303 of this title … operates as a stay, applicable to all entities, of — (1) the commencement or continuation … of a judicial, administrative, or other action or proceeding against the debtor … (2) the enforcement, against the debtor or against property of the estate, of a judgment obtained before the commencement of the case under this title.” Source: 11 U.S.C. § 362(a)(1)–(2) When it applies: The constable on the courthouse steps, the garnishment served last week, the trial three weeks out. It also applies to the creditor who did not know — acts in violation of the stay are void or voidable regardless of notice, and § 362(k) provides damages for willful violations against an individual debtor. How it is proved up: 1. Ask first whether the stay applies at all. It reaches the debtor and property of the estate; it does not reach a non-debtor guarantor, and a lease that terminated before the petition may not be estate property to begin with. 2. For cause under § 362(d)(1), or under § 362(d)(2) where the debtor has no equity and the property is not necessary to an effective reorganization. Pick the ground and prove it — they need different evidence. 3. Move for an emergency hearing where the collateral is wasting or the lease is in default. The court will hear it, and speed is most of the leverage. 4. Ask for a waiver of the fourteen-day stay under Fed. R. Bankr. P. 4001(a)(3). Without it the order does nothing for two weeks. 5. Tell your constable or sheriff the day you learn of the petition. A sale conducted in violation of the stay is worse than no sale. What defeats it: - Adequate protection — payments, replacement liens or an equity cushion that protects the creditor while the case proceeds. - Property genuinely necessary to an effective reorganization that is in reasonable prospect. - A debtor who cures and reinstates. - Nothing at all, sometimes: the stay is one of the few things in litigation that works automatically and immediately, and a creditor’s best move is often to file a claim and wait. Used in: From 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. Q: Does the automatic stay stop a Texas execution sale? A: Yes. Section 362(a)(2) stays enforcement against the debtor or against property of the estate of a judgment obtained before the case was commenced. A sale held after the petition is void or voidable even if the creditor did not know of the filing. Q: How quickly can a creditor get relief from the stay? A: Section 362(e) provides that the stay terminates thirty days after a request for relief unless the court orders it continued after a preliminary hearing. In practice, urgent motions on wasting collateral or defaulted leases are heard far sooner. Q: Does the automatic stay protect guarantors? A: Not ordinarily. The stay protects the debtor and property of the estate, so an action against a non-debtor guarantor generally proceeds — which is why guaranties matter so much in commercial lending. ---------------------------------------------------------------------- ### 60. Assumption of an unexpired lease URL: https://www.jhenrylaw.com/mechanism/assumption-of-an-unexpired-lease/ Authority: 11 U.S.C. § 365 Q: How does a bankrupt business keep the location it operates from? A: 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 reorganization. It also runs on the harshest clock in the Code. Quoted authority: “[I]f there has been a default in an unexpired lease of the debtor, the trustee may not assume such … lease unless, at the time of assumption of such … lease, the trustee — (A) cures, or provides adequate assurance that the trustee will promptly cure, such default …” Source: 11 U.S.C. § 365(b)(1) When it applies: Any Chapter 11 whose value is tied to premises. In a small-business case it is usually the single most contested motion, because the landlord knows the debtor cannot move. How it is proved up: 1. Calendar § 365(d)(4) the day the case is filed. For non-residential real property the lease is deemed rejected and must be immediately surrendered at the earlier of 120 days after the order for relief and the date of plan confirmation. 2. Seek the ninety-day extension before the 120 days expire. The statute permits it only prior to expiration, and any further extension requires the lessor’s prior written consent. 3. Quantify the cure precisely and be ready to fund it. A cure the debtor cannot pay is not a cure. 4. Build the adequate-assurance record on the business, not on optimism — post-petition operating results, the projections, the guaranty if there is one. 5. Keep paying post-petition rent under § 365(d)(3) while the motion is pending. Falling behind on that is the fastest route to losing the motion. What defeats it: - The 120-day deadline, which is self-executing. Miss it and the lease is deemed rejected with immediate surrender, with no motion required from the lessor. - A lease that terminated before the petition, which is not property of the estate and cannot be assumed. - An unfundable cure amount. - A landlord that can show the assurance of future performance is not adequate on the numbers. Used in: In 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. Q: How long does a Chapter 11 debtor have to assume a commercial lease? A: The earlier of 120 days after the order for relief and the date of plan confirmation, under 11 U.S.C. § 365(d)(4)(A). The court may extend that by ninety days for cause, but only on a motion made before the initial period expires. Q: What happens if the deadline to assume a lease is missed? A: The lease is deemed rejected and the debtor must immediately surrender the premises. It is self-executing — the landlord need not move for anything. Q: What is adequate assurance of future performance? A: A showing that the debtor will be able to perform the lease going forward. Courts look to operating results, projections, the debtor’s post-petition payment history and any guaranty or deposit. ---------------------------------------------------------------------- ### 61. Dismissing a Chapter 11 by agreement URL: https://www.jhenrylaw.com/mechanism/consensual-chapter-11-dismissal/ Authority: 11 U.S.C. § 1112(b) Q: Can a Chapter 11 case end without a confirmed plan? A: 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. Quoted authority: “[O]n request of a party in interest, and after notice and a hearing, the court shall convert a case under this chapter to a case under chapter 7 or dismiss a case under this chapter, whichever is in the best interests of creditors and the estate, for cause …” Source: 11 U.S.C. § 1112(b)(1) When it applies: The single-asset or single-issue Chapter 11 filed to stop a foreclosure or an execution sale while a deal gets done. Once the deal is documented and funded, confirmation is expensive theatre. How it is proved up: 1. Document the settlement first and dismiss second. The order should recite what the parties agreed, so the dismissal is the last step rather than the hope. 2. Support it with a declaration from someone with knowledge of the estate — what creditors are being paid, from what source, and why dismissal serves them better than conversion. 3. Address the alternative expressly. The court must choose between conversion and dismissal on the best interests of creditors and the estate, so the motion has to say why dismissal wins. 4. Clear the record afterwards. Terminate the financing statements, release the liens, and file what the settlement requires — a dismissal that leaves encumbrances in place has not finished the job. 5. Get administrative claims and fees resolved before dismissal, because the forum disappears with the case. What defeats it: - Creditors who prefer a Chapter 7 trustee to look at pre-petition transfers, and who will say so. - Unpaid administrative expenses, which the court will not simply abandon. - A record suggesting the filing was in bad faith, where dismissal looks like escape rather than resolution. - The United States Trustee, whose view on conversion versus dismissal carries weight. Used in: In 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. Q: Can a Chapter 11 case be dismissed instead of confirmed? A: Yes. Section 1112(b) permits dismissal or conversion for cause, and where the parties have resolved matters consensually a dismissal is frequently the outcome that best serves creditors and the estate. Q: What is the difference between dismissal and conversion? A: Dismissal ends the bankruptcy case and returns the parties to their non-bankruptcy positions. Conversion moves the case to Chapter 7, where a trustee liquidates the estate and may pursue avoidance actions. The court chooses between them on the best interests of creditors and the estate. Q: Does dismissing a Chapter 11 undo the automatic stay? A: Yes. The stay terminates when the case is dismissed, under 11 U.S.C. § 362(c)(2)(B), so any creditor remedy that was halted may resume unless the settlement provides otherwise. Order on file: Agreed Order Dismissing the Debtor's Chapter 11 Case — In re ARGDOWNTOWN, LLC, Debtor, United States Bankruptcy Court for the Northern District of Texas, Dallas Division, Cause No. 22-31529-SGJ, signed June 29, 2023. Full text of the order: UNITED STATES BANKRUPTCY COURT FOR THE NORTHERN DISTRICT OF TEXAS DALLAS DIVISION In re: ARGDOWNTOWN, LLC, Debtor Chapter 11 Case No. 22-31529-SGJ AGREED ORDER DISMISSING THE DEBTOR'S CHAPTER 11 CASE Signed June 29, 2023. The following constitutes the ruling of the court and has the force and effect therein described. Upon consideration of the Agreed Motion for Entry of an Order Pursuant to Sections 105(a), 305(a), and 1112(b) Authorizing Dismissal of the Debtor's Chapter 11 Case ("Motion") of ARGDOWNTOWN, LLC, the debtor and debtor-in-possession ("Debtor") of the above-captioned Chapter 11 Case and the Declaration of Richard Ellman in Support of the Motion; and the Court having subject matter jurisdiction to consider and determine the Motion, and grant the requested relief in accordance with 28 U.S.C. §§ 157 and 1334; and consideration of the Motion being a core proceeding pursuant to 28 U.S.C. § 157(b); and venue being proper before this Court pursuant to 28 U.S.C. §§ 1408 and 1409; and it appearing that due and sufficient notice of the Motion has been given; and upon the record of the hearings on the Motion and all of the proceedings had before this Court; and all objections to the Motion having been withdrawn, resolved, or overruled; and the Court having determined that the legal and factual bases set forth in the Motion establish just cause for the relief granted herein; and after due deliberation and sufficient cause appearing therefor, it is hereby ORDERED that: 1. The Motion is granted to the extent set forth herein. 2. Pursuant to sections 305(a) and 1112(b) of the Bankruptcy Code, the Chapter 11 Case is hereby dismissed. 3. The Debtor is authorized and empowered to take any and all steps necessary and appropriate to effectuate the terms of this Order, including payment of all creditor claims and administrative claims. 4. Notwithstanding the applicability of any Bankruptcy Rules, the terms and conditions of this Order shall be immediately effective and enforceable upon its entry. 5. Notwithstanding the dismissal of the Chapter 11 Case, this Court shall retain jurisdiction with respect to any matters, claims, rights, or disputes arising from or related to the implementation, interpretation, or enforcement of this or any other Order of this Court entered in the Chapter 11 Case. ### END OF ORDER ### [Page 3] Respectfully submitted by: /s/ John P. Henry John P. Henry (SBT: 24055655) JOHN HENRY & ASSOCIATES, PLLC Attorney for Debtor Agreed to by: /s/ Ryan E. Manns Ryan E. Manns, Michael C. Berthiaume NORTON ROSE FULBRIGHT US LLP — and — David A. Rosenzweig (admitted pro hac vice) NORTON ROSE FULBRIGHT US LLP Attorneys for AT&T Services, Inc. ---------------------------------------------------------------------- ## Getting the defendant into court ### 62. Serving a nonresident through the Secretary of State URL: https://www.jhenrylaw.com/mechanism/nonresident-service-secretary-of-state/ Authority: Tex. Civ. Prac. & Rem. Code § 17.044(b), § 17.045 Q: How do you serve an out-of-state defendant that does business in Texas? A: 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. Quoted authority: “The secretary of state is an agent for service of process on a nonresident who engages in business in this state, but does not maintain a regular place of business in this state or a designated agent for service of process, in any proceeding that arises out of the business done in this state and to which the nonresident is a party.” Source: Tex. Civ. Prac. & Rem. Code § 17.044(b) When it applies: The out-of-state company that signed a Texas contract, took Texas orders, or agreed to a Texas forum, and then declined to appear. In a volume docket it is the ordinary route rather than the exception. How it is proved up: 1. Plead the statute’s facts affirmatively: that the defendant is a nonresident, engaged in business in Texas, that the suit arises out of that business, and that it maintains no regular place of business and no designated agent here. There are no presumptions of valid service on direct attack, and the pleading is what brings the defendant within the statute. 2. Plead the home or home office address. The Secretary forwards to the address you supply, and § 17.045 makes that address part of the statutory scheme rather than a clerical detail. 3. Amend and take a fresh citation directed to the Secretary. You do not serve the Secretary on the original citation, and this is the step most files skip. 4. Send duplicate copies with the fee, and keep the transmittal. The Secretary’s certificate is conclusive that process was received and forwarded, absent fraud or mistake. 5. File the certificate before taking a default, and check the return has been on file ten days under Tex. R. Civ. P. 107(h). What defeats it: - A petition that never alleges the jurisdictional facts, which is the classic defect and shows on the face of the record for six months afterwards. - A forwarding address that is not the statutory one. In Shamrock Enterprises, LLC v. Top Notch Movers, LLC, No. 24-0581 (Tex. Jan. 16, 2026), the Supreme Court reversed a default judgment and held that the Secretary’s certificate establishes only that process was forwarded to the address shown on it — the record must independently show that address is the one the statute requires. - A claim that does not arise out of the Texas business, which takes the case outside § 17.044(b). - A defendant that did maintain a registered agent here, however inactive. Used in: In 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. Q: When can you serve the Texas Secretary of State for a nonresident defendant? A: When the nonresident engages in business in Texas but maintains no regular place of business and no designated agent for service here, and the proceeding arises out of the business done in Texas. Tex. Civ. Prac. & Rem. Code § 17.044(b). Q: What must the petition allege for Secretary of State service to be valid? A: Facts bringing the defendant within the statute — nonresidency, business done in Texas, that the suit arises out of it, the absence of a regular place of business and of a designated agent, and the nonresident's home or home office address for forwarding. There are no presumptions in favor of valid service on direct attack. Q: Is the Secretary of State's certificate conclusive proof of service? A: It is conclusive that process was received and forwarded as addressed, absent fraud or mistake. Since Shamrock Enterprises v. Top Notch Movers (Tex. 2026) it does not establish that the address used was the statutorily required one — the face of the record must show that. Order on file: Default Judgment — United Biologics, LLC d/b/a United Allergy Services v. Santan Health Services, LLC, County Court at Law, Bexar County, Texas, Cause No. 2016CV02672, signed January 12, 2017. Full text of the order: CAUSE NO. 2016CV02672 UNITED BIOLOGICS, LLC d/b/a UNITED ALLERGY SERVICES, Plaintiff v. SANTAN HEALTH SERVICES, LLC, Defendant IN THE COUNTY COURT AT LAW BEXAR COUNTY, TEXAS DEFAULT JUDGMENT On 1/12/17, Plaintiff, UNITED BIOLOGICS, LLC d/b/a UNITED ALLERGY SERVICES moved for default judgment after Defendant SANTAN HEALTH SERVICES, LLC failed to file an answer in this case. At the hearing, Plaintiff appeared through its attorney. Defendant, SANTAN HEALTH SERVICES, LLC did not appear. The court determined that it had jurisdiction over the subject matter and the parties in this proceeding. After considering the pleadings, the papers on file in this case, and the evidence Plaintiff presented on liability and damages, the court GRANTS Plaintiff’s motion for default judgment. The court hereby RENDERS judgment for Plaintiff. Therefore, the Court ORDERS that Plaintiff recover damages from Defendant SANTAN HEALTH SERVICES, LLC in the sum of $69,761.43, pre-judgment interest in the sum of $20,101.70 and post-judgment interest on the total sum at the annual rate of 18%, attorney fees of $1,500.00, and court costs. The court finds the following: 1. Defendant was served with citation and a copy of Plaintiff’s First Amended Petition on September 15, 2016. 2. The citation and proof of service were on file with this court for at least ten days before the judgment was rendered. 3. The deadline for Defendant to file an answer was October 10, 2016. Defendant was required to file an answer the following Monday after 20 days from the date of service of citation and Plaintiff’s amended petition; however, Defendant did not file an answer or any other pleading constituting an answer. 4. Defendant’s last known address is 2181 East Pecos Road, Suite 1, Chandler, Arizona 85225. 5. The damages claimed in Plaintiff’s First Amended Petition were proven by the affidavits and other evidence presented by Plaintiff. 6. This judgment disposes of all claims and all parties and is appealable. SIGNED ON 1/12/17. _______________________________ JUDGE PRESIDING ---------------------------------------------------------------------- ### 63. When a Texas entity's registered agent cannot be found URL: https://www.jhenrylaw.com/mechanism/secretary-of-state-agent-not-found/ Authority: Tex. Bus. Orgs. Code §§ 5.251, 5.252, 5.253 Q: How do you serve a Texas company whose registered agent has disappeared? A: 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. Quoted authority: “The secretary of state is an agent of an entity for purposes of service of process, notice, or demand on the entity if … the registered agent of the entity cannot with reasonable diligence be found at the registered office of the entity.” Source: Tex. Bus. Orgs. Code § 5.251(1)(B) When it applies: The closed clinic, the agent who resigned and was never replaced, the registered office that is a mail drop nobody empties. Also a foreign filing entity whose registration has been revoked, or which transacts business in Texas without registering at all. How it is proved up: 1. Document the diligence before you rely on the statute. “Cannot with reasonable diligence be found” is a fact the record must establish, which in practice means a process server’s affidavit giving dates, times and what was found at the registered office. 2. Run the due-diligence affidavit through a checklist before filing it. “Diligent efforts were made” is not a fact and will not support anything built on it. 3. Amend the petition to draw a citation directed to the Secretary, the same as for a nonresident. 4. Expect the thirty days. Notice on the Secretary is returnable in not less than thirty days under § 5.252(b), which is a different clock from the ordinary answer date. 5. Know where the Secretary will send it — the entity’s most recent address on file with the Secretary, by certified mail, under § 5.253. That is frequently an address the entity abandoned years ago, which is the point, but the record should show it is the statutory one. What defeats it: - A conclusory due-diligence affidavit. - An agent who could have been found with ordinary effort, which makes the substitute unavailable. - Serving the Secretary without amending to obtain the proper citation. - A record that does not show the statutory address was used — the same defect Shamrock identified in the nonresident context, and the analysis is the same here. Used in: The 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. Q: When does the Texas Secretary of State become an entity's agent for service? A: When a filing entity or foreign filing entity fails to appoint or maintain a registered agent, or the registered agent cannot with reasonable diligence be found at the registered office; and, for a foreign filing entity, when its registration is revoked or it transacts business in Texas without registering. Tex. Bus. Orgs. Code § 5.251. Q: How long is notice on the Secretary of State returnable? A: Not less than 30 days, under Tex. Bus. Orgs. Code § 5.252(b). Q: Where does the Secretary of State forward process for a Texas entity? A: To the most recent address of the entity on file with the Secretary, by certified mail with return receipt requested, under § 5.253. ---------------------------------------------------------------------- ### 64. Special appearance and the due order of pleading URL: https://www.jhenrylaw.com/mechanism/special-appearance-due-order/ Authority: Tex. R. Civ. P. 120a Q: How does an out-of-state defendant challenge personal jurisdiction in Texas? A: 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. Quoted authority: “Every appearance, prior to judgment, not in compliance with this rule is a general appearance.” Source: Tex. R. Civ. P. 120a(1) When it applies: The defendant sued in Texas with no Texas contacts. It is the offensive form of the forum-selection entry in this catalog — and the first question is always whether the client signed something that already answered it. How it is proved up: 1. File it first. Before the answer, before a venue motion, before an agreed scheduling order, before anything. It may be filed in the same instrument as other pleas, but it must not come after them. 2. Swear it. An unsworn special appearance is defective, though the defect is curable by amendment before the hearing. 3. Get it heard and determined before any other plea. The rule requires it, and letting the case move on other fronts first is itself a problem. 4. Take the discovery you need without fear. Rule 120a expressly provides that discovery, depositions, requests for admission and the issuance of witness process do not waive the special appearance. 5. Read your own client’s contract before drafting. A Texas forum-selection clause is consent to jurisdiction, and a well-written minimum-contacts brief that never mentions it is the most common way these fail. What defeats it: - A prior filing of any kind, which converts the appearance to a general one. - A forum-selection clause naming Texas, which supplies consent independent of minimum contacts. - Purposeful availment the brief does not address — a single Texas contract deliberately entered can be enough for specific jurisdiction on a claim arising from it. - Seeking affirmative relief from the court before the special appearance is determined. Used in: Chiefly 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. Q: What is the due order of pleading in Texas? A: The requirement that a special appearance under Rule 120a be filed before any other plea, pleading or motion, and be heard and determined before them. Filing anything first waives the challenge to personal jurisdiction. Q: Does taking discovery waive a special appearance in Texas? A: No. Rule 120a expressly provides that the issuance of process for witnesses, the taking of depositions, serving requests for admission and other discovery do not constitute a waiver. Q: Can a special appearance be amended? A: Yes. Rule 120a permits any defects, including the want of a verification, to be cured by amendment before the special appearance is determined. ---------------------------------------------------------------------- ## Terms of art Special appearance: The sworn instrument a non-resident defendant files under Tex. R. Civ. P. 120a to contest a Texas court’s personal jurisdiction without submitting to it. It must be filed before any other plea and heard and determined before any other matter. (see https://www.jhenrylaw.com/mechanism/forum-selection-clause-defeats-special-appearance/) Forum-selection clause: A contract term fixing the court or county in which disputes between the parties must be brought. Texas treats such clauses as presumptively valid and will enforce them by mandamus. (see https://www.jhenrylaw.com/mechanism/forum-selection-clause-defeats-special-appearance/) No-evidence motion for summary judgment: A motion under Tex. R. Civ. P. 166a(h)(3) identifying elements the opposing party cannot support, which shifts the burden to that party to produce evidence. The movant files no evidence of its own. (see https://www.jhenrylaw.com/mechanism/no-evidence-summary-judgment/) Conclusory: A statement that offers a conclusion without the underlying facts supporting it, so that it cannot be effectively controverted. Conclusory statements are not competent summary judgment evidence, and the defect is one of substance rather than form. (see https://www.jhenrylaw.com/mechanism/striking-opposing-counsel-declaration/) Mandatory exclusion: The rule in Tex. R. Civ. P. 193.6 that untimely-disclosed testimony is inadmissible unless the party who missed the deadline shows good cause or an absence of unfair surprise. Exclusion is the default outcome, not a discretionary one. (see https://www.jhenrylaw.com/mechanism/late-designated-expert-exclusion-193-6/) Turnover order: An order under Tex. Civ. Prac. & Rem. Code § 31.002 requiring a judgment debtor to deliver nonexempt property that ordinary legal process cannot readily reach. The court may also appoint a receiver and enjoin the debtor from transferring the property. (see https://www.jhenrylaw.com/mechanism/turnover-order-post-judgment-receiver/) Post-judgment receiver: An officer appointed under the Texas turnover statute with authority to take possession of, investigate and sell a judgment debtor’s nonexempt property in satisfaction of a judgment. (see https://www.jhenrylaw.com/mechanism/turnover-order-post-judgment-receiver/) Badges of fraud: The factors listed in Tex. Bus. & Com. Code § 24.005(b) from which a court may infer actual intent to hinder, delay or defraud a creditor — transfer to an insider, retained possession or control, concealment, timing relative to suit, insolvency, and others. (see https://www.jhenrylaw.com/mechanism/fraudulent-transfer-tufta/) Substituted service: Service authorized by the court under Tex. R. Civ. P. 106(b) in a manner other than personal delivery, granted on a sworn statement listing where the defendant can probably be found and the specific attempts already made. (see https://www.jhenrylaw.com/mechanism/substituted-service-rule-106/) Domestication of a judgment: Filing a judgment rendered in one state with a court of another state so that it can be enforced there, under that state’s Uniform Enforcement of Foreign Judgments Act. (see https://www.jhenrylaw.com/mechanism/domesticating-a-texas-judgment/) Exemplified copy: A copy of a judgment authenticated under 28 U.S.C. § 1738 — certified by the clerk and attested by a judge — which some states require before a foreign judgment may be filed. (see https://www.jhenrylaw.com/mechanism/domesticating-a-texas-judgment/) Dormant judgment: A Texas judgment on which no writ of execution issued within the period set by Tex. Civ. Prac. & Rem. Code § 34.001. Execution may not issue on a dormant judgment unless it is revived. (see https://www.jhenrylaw.com/mechanism/abstract-writ-and-the-constable/) Abstract of judgment: The instrument that, when recorded and properly indexed in a county, creates a judgment lien on the debtor’s nonexempt real property in that county under Tex. Prop. Code § 52.001. (see https://www.jhenrylaw.com/mechanism/abstract-writ-and-the-constable/) Verified denial: A denial that Tex. R. Civ. P. 93 requires be sworn — capacity, defect of parties, denial of the execution of an instrument, denial of an account — and which is waived if it is not verified. (see https://www.jhenrylaw.com/mechanism/verified-denial-defect-of-parties/) Forfeited corporate privileges: The status of a Texas entity that has not satisfied its franchise tax obligations. Under Tex. Tax Code § 171.252 the entity is denied the right to sue or defend in a court of this state. (see https://www.jhenrylaw.com/mechanism/forfeited-charter-special-exceptions/) Dismissal docket: The list of cases a court has noticed for dismissal for want of prosecution under Tex. R. Civ. P. 165a. A verified motion to retain, filed before the setting, takes a case back off it. (see https://www.jhenrylaw.com/mechanism/verified-motion-to-retain/) ## Fees Tier I — Documentary — Liquidated sum, signed instrument, no expert, no real fact dispute. A note, a guaranty, a lease balance, a sworn account. — 2–3 weeks — Quoted on the file Tier II — Contested — Live affirmative defenses, a records custodian to prove up, evidentiary objections to brief, a hearing that will actually be argued. — 4–6 weeks — Quoted on the file Tier III — Technical — Competing valuations, fiduciary duties, multiple movants, expert challenges, partnership or construction facts. The motion that decides the case. — 6–10 weeks — Quoted on the file Hearing only — Your motion, your brief, my argument. I read the file, prepare, and stand up. — By setting — Quoted on the setting Read & opinion — Send 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 noon — No charge [A current offer, not a standing rate — it can be withdrawn at any time and this page will say so when it is. Where it is not in force the read is quoted like any other work and credited against any engagement that follows. A file already sent is read at the price in force when it arrived.] Enforcement — Abstract, writ, turnover, receiver. Quoted on the judgment and the debtor, after a look at what there is to reach. — By posture — Quoted ## Contact 407 W Liberty Ave, Round Rock, TX 78664 (512) 764-6493 · jhenry@jhenrylaw.com Intake: https://www.jhenrylaw.com/send/