Default judgments in Texas: what the plaintiff has to prove and when the court can sign one

A default judgment is a judgment entered because the defendant never answered. In Texas it is the ordinary ending of a debt-collection case, not an unusual one.

But a missed Monday isn't a judgment. Rule 239 lets the plaintiff ask for one, and it attaches conditions. Two of them do most of the work.

Condition one: no answer on file

Rule 239 allows a default judgment "if [the defendant] has not previously filed an answer."

Previously means before the judgment — not before the deadline. An answer filed a week late, on a Thursday afternoon, still blocks a default judgment signed the following Monday. It does not cure lateness for any other purpose, and it doesn't undo anything the court has already signed. But while the case is still open and no default has been rendered, an answer on file takes Rule 239 off the table.

The answer doesn't have to be well drafted, either. Rule 92 makes a general denial enough to put the plaintiff's allegations in issue, and Rule 90 — the rule that waives pleading defects nobody excepted to — carries a proviso that it "shall not apply as to any party against whom default judgment is rendered." A defendant who defaults gets less protection from that rule than one who shows up with a rough pleading.

Condition two: the return of service has been on file ten days

Rule 239 requires that "the return of service shall have been on file with the clerk for the length of time required by Rule 107." Rule 107(h) supplies the number:

No default judgment shall be granted in any cause until proof of service … shall have been on file with the clerk of the court ten days, exclusive of the day of filing and the day of judgment.

Ten days, and neither end day counts. So a return filed on the 1st makes the 12th the earliest day a default judgment can be signed.

The clock runs from the filing of the return, not from service. A process server who serves promptly and files the return three weeks later has pushed the earliest possible default judgment three weeks out. That gap is a common reason a case that looks defaulted on paper isn't ready.

Rule 107(h) applies the same ten-day wait to proof of service under Rule 108 (defendants outside Texas) and Rule 108a (defendants outside the United States), and to proof made "in the manner ordered by the court" when the court authorized alternative service under Rule 106(b).

What the return itself has to contain

Rule 107(b) lists eleven items the return must include: the cause number and case name, the court, a description of what was served, the date and time process was received for service, the person or entity served, the address served, the date of service or attempted service, the manner of delivery, the name of the person who served it, that person's certification number and expiration date if they're a process server certified by the Judicial Branch Certification Commission, and anything else a rule or statute requires.

Three more requirements sit alongside that list.

If service was by registered or certified mail under Rule 106(a)(2), Rule 107(c) requires the return to contain the return receipt with the addressee's signature. A green card signed by someone else at the address doesn't satisfy the text of the rule.

Rule 107(e) requires the server to sign the return. If the signer isn't a sheriff, constable or clerk, the return must be verified or signed under penalty of perjury, in substantially the form Rule 107(e) sets out.

Rule 107(g) requires the return and its attachments to be filed with the court, and allows electronic or fax filing where those are available.

Liquidated and unliquidated damages

Rule 239 gets the plaintiff a judgment on liability. What happens to the number depends on the kind of claim.

Rule 241 covers claims that are liquidated and proved by a written instrument. There, damages "shall be assessed by the court, or under its direction," and final judgment is rendered — no evidentiary hearing required, unless the defendant demands and is entitled to a jury.

Rule 243 covers everything else. If the cause of action is unliquidated, or isn't proved by a written instrument, "the court shall hear evidence as to damages." That's a real hearing with real proof. A defaulting defendant who never appears still forces the plaintiff to put on evidence of the amount.

Rule 244 handles a narrower case: service by publication with no answer or appearance. The court must appoint an attorney to defend on the absent defendant's behalf, a statement of the evidence signed by the judge goes into the record, and the appointed attorney is paid a reasonable fee taxed as costs.

Notice after the fact — Rule 239a

Rule 239a exists because a defaulting defendant, by definition, isn't watching the docket.

At or immediately before the default judgment is rendered, the plaintiff or the plaintiff's attorney must certify to the clerk in writing the last known email address and mailing address of the party the judgment is taken against. That certificate is filed in the case.

Immediately upon the judgment being signed, the clerk must send written notice to that party — electronically under Rule 21(f)(10) and to the mailing address on the certificate — and note the mailing on the docket. The notice must state the case number and style, the court, the names of the parties for and against whom judgment was rendered, and the date the judgment was signed.

Then Rule 239a closes with a sentence that does more work than the rest of the rule:

Failure to comply with the provisions of this rule does not affect the finality of the judgment.

A judgment signed without the certificate, or without the clerk's notice ever going out, is still a judgment. It still starts the appellate clock. That result is harsh enough that a separate rule — Rule 306a(4) — exists to move deadlines for a party who genuinely never learned about the judgment. The guide on setting aside a default judgment covers how that works.

Interlocutory defaults

Rule 239a refers to "an interlocutory or final default judgment," and the distinction matters. A default against one of several defendants doesn't dispose of the case. Rule 161 lets a plaintiff whose defendants weren't all served dismiss as to the unserved ones, take new process against them, or sever — with the qualification that no dismissal is allowed as to a principal obligor without also dismissing parties secondarily liable, except where a statute says otherwise.

The window closes

A default judgment isn't permanent the moment it's signed. Rule 329b gives the trial court plenary power for thirty days, and a timely motion for new trial extends it. Once that power expires, Rule 329b(f) leaves only a bill of review. The next guide covers both.

Where these rules live

• Rule 107 — Return of Service
• Rule 161 — Where Some Defendants Not Served
• Rule 239 — Judgment by Default
• Rule 239a — Notice of Default Judgment
• Rule 241 — Assessing Damages on Liquidated Demands
• Rule 243 — Unliquidated Demands
• Rule 244 — On Service by Publication
• Rule 329b — Time for Filing Motions

For forms and step-by-step help, the Texas courts point to TexasLawHelp.org. This page explains what the rules say. It isn't legal advice.