Amending Your Petition; Does it Affect the Deadline to Answer?

Written by Campbell A. Colyer

Have you realized that your petition is missing a crucial piece of damage, and you need to file an amendment? Did you just learn about a necessary party, and you need to add them to your case as soon as possible? Maybe you’re a defendant on the precipice of an answer deadline, and the plaintiff has already filed an amended petition. Will the deadline to answer be extended, thereby delaying a possible default judgement? In this article, we will look at how the filing of an amended petition in a Texas district or county court may affect how much time there is for you, or opposing parties, to file an answer or response.

Service of Process Determines the Deadline

Texas district and county courts require the defendant to file its answer by 10:00 a.m. on the first Monday after the expiration of twenty (20) days from the date the defendant was properly served with the petition. Tex. R. Civ. P. 99(b); Solis v. Garcia, 702 S.W.2d 668, 671 (Tex.App.—Houston [14th Dist..] 1985, no writ). A Texas court cannot render judgment against a defendant who has not been served with process, accepted or waived service, or made an appearance in the lawsuit. Tex. R. Civ. P. 124; U.S. Bank v. Moss, 644 S.W.3d 130, 137 (Tex. 2022); Werner v. Colwell, 909 S.W.2d 866, 869-70 (Tex. 1995); Mapco, Inc. v. Carter, 817 S.W.2d 686 (Tex. 1991). Therefore, a default judgment would be void unless the defendant was properly served. U.S. Bank, 644 S.W.3d at 137; Garcia v. Ennis, 554 S.W.3d 209, 214 (Tex.App.—Fort Worth 2018, no pet.).

If proper service of process is required for a judgment to be rendered on a defendant, and the date such service is executed determines the start date of the deadline to answer, then the next logical question would be: Is an amended petition also required to be served on the defendant, thus resetting the deadline?

A More Onerous Petition

An amended pleading is not required to be served on a defendant who previously filed an answer, because that defendant has already appeared in the lawsuit. In this case, the defendant should base its answer deadline on the service date of the original petition. On the other hand, if the defendant has not filed an answer yet, and the amended petition asks for a more onerous judgment, then the plaintiff is required to serve the amended petition on the defendant under the requirements set out in Tex. R. Civ. P 21 and 21a before the court may render a default judgment, and the defendant has time to answer from service of that amended petition. In re E.A., 287 S.W.3d 1, 6 (Tex. 2009); AAMCO Transmissions, Inc. v. Bova, 484 S.W.3d 529, 523 (Tex.App.—Houston [1st Dist..]. 2016, no pet.). A plaintiff seeks a more onerous judgment by: 

• adding claims;
• adding new elements of damages, or
• increasing the amount of damages.

In re E.A., 287 S.W.3d at 6. If a plaintiff does not add or increase a petition’s claims or damages, then that amended petition does not need to be served. AAMCO Transmissions, 484 S.W.3d at 523. Amendments such as correcting a party’s name, or adding a new party altogether, do not require a new process of service. Palomin v. Zarsky Lumber Co., 26 S.W.3d 690, 694 (Tex.App.—Corpus Christi 2000, pet. denied) (adding two defendants); Halligan V. First Heights, F.S.A., 850 S.W.2d 801, 802-03 (Tex.App.—Houston [14th Dist..] 1993, no writ) (minor changes to defendant’s name).

NOTE: A plaintiff is not required to serve the defendant(s) with a new citation when serving an amended petition, even if that amended petition is more onerous. In re E.A., 287 S.W.3d at 6.

Best Practices

The information above should give you a better idea of whether an amended petition has changed your deadline to answer. However, the best way to know for sure is to reach out to the opposing counsel. An open discussion allows the parties to better understand why the amended petition was necessary, identify exactly what is being changed, and request more time to answer if needed. A quick call allows the attorneys to resolve such an issue, rather than possibly wasting your time, the court’s resources, and most importantly, the client’s money.