Counterclaims, Crossclaims and Third-Party Claims in Texas State Courts

The Texas Counterclaim

This post is the last in a seven-part series written to explain how counterclaims, crossclaims, and third-party claims are used in answering a lawsuit. Other topics in this series are listed below.

Post 1: The Basics of Drafting an Answer
Post 2: Dilatory Pleas
Post 3: Special Exceptions
Post 4: The General Denial
Post 5: Verified Denials
Post 6: Affirmative Defenses
Post 7: Counterclaims, Crossclaims, and Third-Party Claims


A counterclaim is a cause of action filed by a defendant in a lawsuit. It is generally filed as part of the answer and includes allegations that the defendant could have made if the plaintiff had not filed first. The counterclaim provides facts which will grant relief to the defendant if those facts are proven to be true. The counterclaim may focus on the same event or situation that the plaintiff has alleged, or it may arise out of a completely different event. Counterclaims are helpful because they provide a defendant an opportunity to play offense instead of defense. Counterclaims that relate to the same set of facts alleged by the plaintiff may be filed even if the applicable statute(s) of limitations has expired (Tex. Civ. Prac. & Rem Code Ann. § 16.069).

The different types of counterclaims are outlined in Tex. R. Civ. P. 97:

(a) Compulsory Counterclaims. A pleading shall state as a counterclaim any claim within the jurisdiction of the court, not the subject of a pending action, which at the time of filing the pleading the pleader has against any opposing party, if it arises out of the transaction or occurrence that is the subject matter of the opposing party's claim and does not require for its adjudication the presence of third parties of whom the court cannot acquire jurisdiction; provided, however, that a judgment based upon a settlement or compromise of a claim of one party to the transaction or occurrence prior to a disposition on the merits shall not operate as a bar to the continuation or assertion of the claims of any other party to the transaction or occurrence unless the latter has consented in writing that said judgment shall operate as a bar.
(b) Permissive Counterclaims. A pleading may state as a counterclaim any claim against an opposing party whether or not arising out of the transaction or occurrence that is the subject matter of the opposing party's claim. (c) Counterclaim Exceeding Opposing Claim. A counterclaim may or may not diminish or defeat the recovery sought by the opposing party. It may claim relief exceeding in amount or different in kind from that sought in the pleading of the opposing party, so long as the subject matter is within the jurisdiction of the court. (d) Counterclaim Maturing or Acquired After Pleading. A claim which either matured or was acquired by the pleader after filing his pleading may be presented as a counterclaim by amended pleading. (e) Crossclaim Against Co-Party. A pleading may state as a crossclaim any claim by one party against a co-party arising out of the transaction or occurrence that is the subject matter either of the original action or of a counterclaim therein. Such crossclaim may include a claim that the party against whom it is asserted is or may be liable to the crossclaimant for all or part of a claim asserted in the action again the crossclaimant. (f) Additional Parties. Persons other than those made parties to the original action may be made parties to a third-party action, counterclaim or crossclaim in accordance with the provisions of Rules 38, 39 and 40. (g) Tort shall not be the subject of set-off or counterclaim against a contractual demand nor a contractual demand against tort unless it arises out of or is incident to or is connected with same. (h) Separate Trials; Separate Judgments. If the court orders separate trials as provided in Rule 174, judgment on a counterclaim or crossclaim may be rendered when the court has jurisdiction so to do, even if the claims of the opposing party have been dismissed or otherwise disposed of.

Correctly identifying and making counterclaims is an important part of the defendant’s answer because failing to file a counterclaim at the appropriate time may mean that the defendant waives them.


A defendant may also make a pleading against a fellow defendant. This type of claim is called a crossclaim. It is usually filed with the answer and may be part of a counterclaim. A crossclaim may be filed by a defendant against another defendant or a plaintiff against another plaintiff. Tex. R. Civ P. 97 (e). Crossclaims should only be brought after due consideration is given to the circumstances surrounding all the facts and nuances of the litigation proceedings. For example, claims between defendants may present weaknesses against the plaintiff’s allegations.

Third-Party Claims

Defined in Tex. R. Civ. P. 97 (f), a third-party claim is brought against someone who the defendant feels is somehow responsible but who is not originally part of the plaintiff’s claim. An indemnity claim against an outside person or company is a good example of a third-party claim. By assigning responsibility to a third party, the defendant may also be able to allocate all or part of the plaintiff’s damages to that third party. See Tex. R. Civ. P. 38, 39, and 40.

Fully understanding how best to file counterclaims, crossclaims, and third-party claims is a real challenge and requires someone familiar with all the complexities of litigation. A lawyer with such expertise will correctly use these different types of claims to help a defendant successfully oppose allegations.

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