Affirmative Defenses in Texas

In Texas, affirmative defenses are legal arguments that a defendant can raise in response to a civil lawsuit or criminal charge. Unlike a denial or a general defense, an affirmative defense acknowledges that the plaintiff or prosecutor’s allegations may be true, but provides a legal justification for why the defendant should not be held liable or guilty.

An affirmative defense typically involves the defendant admitting to the factual allegations made by the plaintiff or prosecutor but arguing that the defendant should not be held liable or guilty because of some other factor. For example, some common affirmative defenses in Texas civil lawsuits include:

• Contributory negligence: the defendant argues that the plaintiff’s own negligence contributed to their injuries or damages, and therefore the defendant should not be held solely responsible.
• Statute of limitations: the defendant argues that the plaintiff waited too long to file their lawsuit, and that the claim should be dismissed as a result.
• Waiver: the defendant argues that the plaintiff waived their right to sue by engaging in some other behavior, such as signing a release or accepting a settlement offer.
• Consent: the defendant argues that the plaintiff consented to the behavior that gave rise to the lawsuit, and therefore cannot now complain about it.

It’s important to note that in order to raise an affirmative defense, the defendant must specifically plead it in their initial response to the lawsuit or charge. Failure to do so can result in the defense being waived. Additionally, the defendant bears the burden of proving the affirmative defense by a preponderance of the evidence, meaning that they must show that it is more likely than not that the defense applies.

When should one plead affirmative defenses?

If you are a defendant in a civil lawsuit or criminal case in Texas, you should plead affirmative defenses in your initial response to the lawsuit or charge. This initial response is typically called an answer in a civil case, and a plea or answer in a criminal case.

The reason for pleading affirmative defenses at the earliest opportunity is to avoid waiving them. If you fail to plead an affirmative defense in your initial response, you may be barred from raising that defense later in the case. This is because the purpose of an initial response is to inform the plaintiff or prosecutor of your defenses so that they can prepare their case accordingly.

In addition, pleading affirmative defenses early in the case may also help to narrow the issues in dispute and facilitate settlement discussions. By putting the plaintiff or prosecutor on notice of your legal arguments, you may be able to resolve the case more quickly and efficiently.

It’s important to note that the specific affirmative defenses that you should plead will depend on the facts of your case and the legal claims that have been asserted against you. An experienced attorney can help you determine which affirmative defenses to plead and how to effectively raise them in your initial response.

List affirmative defenses in Texas civil cases

There is no definitive or exhaustive list of affirmative defenses in Texas civil cases, as the specific defenses that may be available will depend on the facts and circumstances of each case. However, some of the more commonly pleaded affirmative defenses in Texas civil cases include:

1. Contributory negligence: The defendant argues that the plaintiff’s own negligence contributed to their injuries or damages and, therefore, the defendant should not be held solely responsible.
2. Comparative negligence: The defendant argues that the plaintiff’s negligence contributed to their injuries or damages, but that the defendant’s actions were proportionally less responsible for the harm caused.
3. Assumption of risk: The defendant argues that the plaintiff voluntarily assumed a known risk of harm and, therefore, the defendant should not be held liable for the resulting injuries or damages.
4. Statute of limitations: The defendant argues that the plaintiff waited too long to file their lawsuit, and that the claim should be dismissed as a result.
5. Waiver: The defendant argues that the plaintiff waived their right to sue by engaging in some other behavior, such as signing a release or accepting a settlement offer.
6. Estoppel: The defendant argues that the plaintiff is prevented from pursuing the claim because they made misrepresentations or engaged in conduct that would make it unfair to allow them to pursue the claim.
7. Res judicata: The defendant argues that the plaintiff’s claim has already been resolved in a prior lawsuit and, therefore, should not be re-litigated.
8. Laches: The defendant argues that the plaintiff waited too long to assert their claim and, therefore, the claim should be barred due to the delay.

It’s important to note that this is not an exhaustive list and that other affirmative defenses may be available depending on the specific circumstances of the case. Additionally, the defendant must plead and prove the affirmative defense by a preponderance of the evidence.

Where can I read the rules on affirmative defenses in Texas?

You can find the rules on affirmative defenses in Texas in the Texas Rules of Civil Procedure. Specifically, the relevant rules for pleading affirmative defenses are:

• Rule 94: Contents of Pleadings, which sets out the requirements for pleadings in civil cases, including affirmative defenses.
• Rule 94a: Affirmative Defenses, which lists the affirmative defenses that must be pleaded in a responsive pleading in order to avoid waiver.
• Rule 93: General Rules of Pleading, which provides guidance on how to plead defenses in a civil case.

You can access the Texas Rules of Civil Procedure on the website of the Texas Supreme Court or the Texas Legislature. Additionally, an attorney who practices in Texas can provide guidance on how to effectively plead affirmative defenses and other defenses in your particular case.