Texas Motion to Set Aside a Default Judgment
Set aside a Texas default judgment with a motion for new trial under the Craddock test. File within 30 days of the judgment being signed while the court keeps plenary power.
Introduction
A motion to set aside a default judgment asks the court to undo a judgment entered against you because you did not answer the lawsuit in time, so you can defend the case on the merits. A default judgment is the judgment a court enters when a defendant fails to respond by the deadline. In Texas the vehicle for undoing it, while the court still has power to act, is a motion for new trial under Texas Rule of Civil Procedure 320, which lets the court grant a new trial and set the judgment aside for good cause. The governing standard is the Craddock three-element test: you must show the failure to answer was not intentional or the result of conscious indifference but was due to a mistake or accident, that your motion sets up a meritorious defense (a real defense you could win on if the case reopens), and that granting a new trial would not delay or otherwise injure the plaintiff. Timing is strict. Under Rule 329b the motion must be filed within 30 calendar days after the judgment is signed, the same window in which the trial court keeps plenary power to vacate the judgment. After that power expires, the only path is an equitable bill of review, so act fast. DocDraft drafts a Texas motion to set aside a default judgment from your facts, with attorney review available before you file.
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Key Things to Know
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A default judgment is the judgment a court enters when a defendant does not answer the lawsuit in time. In Texas you undo it by moving to set the judgment aside, which reopens the case so it can be decided on the merits.
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The vehicle is a motion for new trial under Texas Rule of Civil Procedure 320, which lets the court grant a new trial and set the judgment aside for good cause while it still has power over the case.
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The deadline is short. Under Rule 329b(a) the motion for new trial must be filed within 30 calendar days after the judgment is signed. The clock runs from the signing date, not from when you learned of the judgment.
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The court's plenary power to vacate or modify the judgment also runs 30 days from signing under Rule 329b(d). A timely motion for new trial extends that power until 30 days after the motion is overruled, up to a maximum of 105 days.
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The standard is the Craddock three-element test: the failure to answer was not intentional or due to conscious indifference but was a mistake or accident, the motion sets up a meritorious defense, and a new trial would not delay or injure the plaintiff.
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You must set up a meritorious defense in the motion. Conscious indifference means you knew you were sued but did not care; showing the failure was an accident or mistake, plus a real defense, is the core of the Craddock showing.
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After the court's plenary power expires, the judgment can only be set aside by an equitable bill of review for sufficient cause, filed within the time allowed by law. A party who was never served or given notice of the default has a relaxed showing.
Key decisions before you file
Before you file a Motion to Set Aside a Default Judgment in Texas, a few decisions shape the document: which option to choose and what each one means. The Motion to Set Aside a Default Judgment guide walks through them.
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Texas Requirements for Motion to Set Aside a Default Judgment
File within 30 days of the signed judgment
Under Texas Rule of Civil Procedure 329b(a) the motion for new trial must be filed within 30 calendar days after the judgment is signed. The clock runs from the signing date, so file as soon as you learn of the judgment.
Understand the plenary power window
The trial court's plenary power to vacate the judgment runs 30 days from signing under Rule 329b(d). A timely motion for new trial extends that power until 30 days after the motion is overruled, up to a 105-day maximum. After plenary power expires, relief is only by bill of review.
Move for new trial under Rule 320
Set the judgment aside by a motion for new trial under Texas Rule of Civil Procedure 320, which lets the court grant a new trial and set the judgment aside for good cause while it still has power over the case.
Show the failure to answer was a mistake or accident
The first Craddock element requires you to show the failure to answer was not intentional or the result of conscious indifference but was due to a mistake or accident. Conscious indifference means you knew you were sued but did not care.
Set up a meritorious defense
The second Craddock element requires the motion to set up a meritorious defense, the real defense you would raise if the case reopens, such as the debt was paid, the amount is wrong, or you are not the correct party.
Show no delay or injury to the plaintiff
The third Craddock element requires you to show that granting a new trial would not result in delay or otherwise injure the plaintiff. Offering to proceed promptly and to reimburse reasonable costs can support this element.
Verify the motion and state the facts
Support the motion with sworn facts describing why the answer was missed and the defense you would raise. Use the same court name and cause number as the default judgment, exactly as they appear in the record.
File in the same court and complete a certificate of service
File the motion in the same Texas trial court that signed the judgment, under the same cause number, and serve all parties with a certificate of service. Check your court's local rules for filing method, and note that many Texas courts require electronic filing for represented parties.