TRCP 239: Judgment by Default

Last updated: August 2, 2026

What Rule 239 Says

Texas Rule of Civil Procedure 239 is short. In substance it provides that at any time after a defendant is required to answer, the plaintiff may take judgment by default against that defendant if:

1. the defendant has not previously filed an answer; and
2. the return of service has been on file with the clerk for the length of time required by Rule 107.

Read the rule yourself at the Texas Judicial Branch rules page rather than trusting anyone's summary, including this one.

The Three Conditions, In Order

1. The answer deadline has passed

Under Rule 99, a defendant served with citation must answer by 10:00 a.m. on the first Monday after 20 days from the date of service. Until that moment arrives, no default is available. It is not 20 days — it is 20 days, then forward to the next Monday, then 10:00 a.m.

2. No answer is on file

Any answer defeats a no-answer default, even a bare general denial, even one filed late but before the default is taken. This is why filing something matters so much: an answer filed at 9:00 a.m. on the day a default was set stops it.

3. The return of service has been on file for ten days

The ten days exist to give the court a chance to look at how service was accomplished before it enters a judgment against someone who is not there. It is the only structural check in the sequence.

Rule 239 vs Rule 239a

The last row is the one worth sitting with. Rule 239 has teeth; Rule 239a largely does not. A party who never files the address certificate has broken a rule with no stated consequence for the judgment.

What Rule 239 Does Not Require

• It does not require telling you a default is being taken. There is no obligation to warn the absent party that judgment is about to be entered against them.
• It does not require the court to verify you actually received the papers. Only that the return is on file and facially regular.
• It does not require a hearing you can attend. In many cases the prove-up is brief and one-sided.
• It does not require proof the address used was correct — that is Rule 239a's territory, and 239a imposes no verification standard either.

Defaults Are Not Automatic in a Custody Case

Rule 239 is a general civil rule. In a SAPCR, failing to answer does not simply hand the other parent everything they asked for.

Under Texas Family Code § 153.002, the best interest of the child is always the court's primary consideration, and best interest is not something a missing parent can admit by silence. Courts generally require the petitioner to put on evidence at a prove-up before entering a final order on conservatorship and possession. Similarly, Rule 243 requires the court to hear evidence where a claim is unliquidated rather than a sum certain.

In practice this often means a short hearing with one parent testifying. It is a real check in principle. It is a thin one when nobody is present to contest the testimony.

If a Default Was Taken Against You

Rule 239 gives you a specific checklist to run against the court's own file. Pull the complete record for your cause number from the district clerk and answer these:

1. Is there a return of service in the file at all? If none was ever filed, Rule 239's condition was not satisfied.
2. What date was the return filed, and what date was the judgment signed? Count the days. Rule 107 requires ten, excluding both the filing day and the judgment day.
3. What address does the return recite? Compare it to where you actually lived.
4. Who served it, and how? Personal service, substituted service under Rule 106, or citation by publication each carry different requirements.
5. Was an answer on file? Anything filed before the default defeats it.

Texas courts apply this strictly when a default judgment is attacked directly. In Primate Construction, Inc. v. Silver, 884 S.W.2d 151, 152 (Tex. 1994), the Supreme Court of Texas held there are no presumptions in favor of valid issuance, service, and return of citation when a default judgment is under direct attack. The record has to show compliance on its face. And under Wilson v. Dunn, 800 S.W.2d 833, 836–37 (Tex. 1990), a defendant's actual knowledge of the suit does not cure defective service.

Those two holdings together are why the paperwork matters more than what anyone remembers.

Your Remedies and Their Deadlines

• Motion for new trial — 30 days from signing, under Rule 329b.
• Restricted appeal — six months, if you did not participate and the error appears on the face of the record.
• Bill of review — generally four years, and usually the only route left once you learn late.
• Rule 306a — if you did not receive notice of the judgment within 20 days, your deadlines may run from when you actually found out rather than from signing. There is a 90-day ceiling.

Two free tools on this site work directly off these rules: the deadline calculator shows which remedies are still open, and the bill of review eligibility checker walks the elements you would have to prove.

Frequently Asked Questions

What is TRCP 239?

Texas Rule of Civil Procedure 239 is the rule that allows a plaintiff to take judgment by default when the defendant has not answered by the deadline and the return of service has been on file for the time Rule 107 requires.

What is the difference between Rule 239 and Rule 239a?

Rule 239 is how a default is taken. Rule 239a is the certificate of the defendant's last known email address and mailing address, filed afterward so the clerk can send notice. Rule 239a also states that failure to comply does not affect the finality of the judgment.

How long must the return of service be on file before a default?

Ten days under Rule 107, exclusive of the day the return was filed and the day judgment is signed.

Can a default judgment be taken if no return of service was ever filed?

It should not be. Rule 239 conditions a default on the return being on file for the Rule 107 period. If the file contains no return at all, that condition was not met — which is a basis for challenging the judgment.

Does Rule 239 require notice that a default is being taken?

No. Nothing in Rule 239 requires warning the absent party that judgment is about to be entered. That absence is the structural gap this site exists to document.

Can I lose custody by default in Texas?

Yes, though not automatically. The court must still consider the child's best interest under Family Code § 153.002 and generally requires evidence at a prove-up. But that hearing usually has only one parent in the room. See default judgments in Texas custody cases.