Affirmative Defenses | Texas Law Help

An affirmative defense is a reason given by the defendant for why the plaintiff should not win the lawsuit, even if what the plaintiff says is true. In Texas, defendants must assert affirmative defenses in their Answer at the beginning of the case or risk not being able to use them later. Many affirmative defenses are listed in Rule 94 of the Texas Rules of Civil Procedure. Here, you can find out how and where to research each defense.

Page Sections

• What is an affirmative defense?
• Where can I find lists of affirmative defenses?
• Statutes of Limitation
• Accord and Satisfaction
• Arbitration and Award
• Assumption of Risk
• Discharge in Bankruptcy
• Duress
• Estoppel
• Contributory Negligence
• Failure of Consideration
• Fraud
• Illegality
• Injury to Fellow Servant
• Laches
• License
• Release
• Res Judicata
• Statute of Frauds
• Waiver
• Should I get more help?

What is an affirmative defense?

Affirmative defenses are reasons the defendant gives for why a plaintiff should not win. An affirmative defense can help you win the lawsuit even if what the plaintiff says is true. In Texas, defendants must assert affirmative defenses in their Answer at the beginning of their case. Failure to do so may prevent the defendant from using the defenses later.

These cases, Texas Beef Cattle Co. vs. Green and Phillips vs. Phillips, explain how affirmative defenses are applied in Texas courts.

Where can I find lists of affirmative defenses?

Many affirmative defenses are listed in Rule 94 of the Texas Rules of Civil Procedure. This guide explains several defenses from the Civil Answer form, but it does not cover every possible defense.

For defenses not listed here or more details on each, consult O’Connor’s Texas Rules: Civil Trials and O’Connor’s Texas Causes of Action under the section “Defendant’s Response and Pleadings.” These books are available at most law libraries. The cases and statutes in this guide can also help with legal research.

Statutes of Limitation

The statutes of limitation say how long the plaintiff has to file a lawsuit against the defendant. Depending on the type of case, the deadlines to file a lawsuit are different. There are further possible issues, including whether the deadline can be extended. For more information on specific statutes of limitation in Texas, readStatutes of Limitation.

Example: Ellie agrees in writing with Obie to repair her roof so it will not continue to leak when it rains. Obie works on the roof, Ellie pays him, and he leaves. But during the next rainstorm, the roof continued to leak. Ellie contacts Obie about the leak, and he ignores her communications. Ellie then forgets about the matter during a dry spell in the weather. For the next few years, the roof continues to leak when it rains, but Ellie is too busy to follow up. Finally, she files a lawsuit five years later. Obie may be able to assert statute of limitations as an affirmative defense because, in this type of case, the deadline to file a lawsuit is four years from the date Ellie knew or should have known of the defect.

Accord and Satisfaction

An accord and satisfaction defense may apply when a plaintiff accepts a smaller payment to settle a contract dispute.

Example:Sally agreed to buy five sculptures from Harry for $100. However, two sculptures did not turn out exactly the way Sally liked. Harry then offered to sell the sculptures to Sally for $85 instead to solve the problem. Sally agreed and paid Harry the $85. Later, Sally files a lawsuit against Harry because she was unhappy with the two sculptures. Harry may be able to assert an accord and satisfaction affirmative defense.

The case of Jenkins vs. Henry C. Beck Co. explains how Texas courts determine whether a dispute was truly settled through accord and satisfaction.

Arbitration and Award

Arbitration is a process where a neutral third party reviews evidence and decides a dispute. Many contracts include an arbitration clause requiring parties to resolve disagreements this way before filing a lawsuit. If arbitration already occurred and resulted in a decision, a defendant may use arbitration and award as an affirmative defense.

Example: Ty and Danny signed a contract stating that any disputes would go to arbitration. After Ty buys eggs from Danny, half fail to hatch. They go through arbitration, where the arbitrator orders Danny to refund half of Ty’s money. Unsatisfied with the amount, Ty sues Danny. Danny may use arbitration and award as a defense because the dispute was already resolved through arbitration. Courts generally uphold arbitration decisions.

For more on how Texas courts handle arbitration awards, see TransWestern Pipeline Co. vs. Horizon Oil & Gas Co. (addressing arbitration enforcement) andCity of San Antonio v. McKenzie Construction. Co. (discussing when courts will uphold arbitration awards). Texas Civil Practice and Remedies Code chapter 171 governs abitration.

Assumption of Risk

The assumption of the risk applies when a plaintiff knowingly and voluntarily accepts the risks of a dangerous activity. In Texas, it is limited but can apply when someone consents to a risky activity, is injured while committing a felony, or attempts suicide.

Example: Ellie runs a skydiving business. Mari signs a waiver acknowledging the risks. After breaking her leg on landing, Mari sues Ellie. Because Mari knowingly accepted the risks, Ellie may use assumption of risk as a defense.

For more on how Texas courts handle this defense, see Farley vs. MM Cattle Co. (assumption of risk in recreational activities), and Newman vs. Tropical Visions, Inc. (waivers and liability in dangerous activities).

See Texas Civil Practice and Remedies Code 33.001 (comparative responsibility) and Texas Civil Practice and Remedies Code 93.001 (affirmative defenses in personal injury cases).

Discharge in Bankruptcy

A bankruptcy discharge is a court order that says the debtor is no longer responsible for certain kinds of debts.

A defendant who has filed for bankruptcy and received a discharge for debts from the court can claim this affirmative defense if the plaintiff is now trying to sue him for one of those debts.

Example: Theo got a credit card through Bank of Iron. He made a lot of purchases and ran up a large balance on the card that he could not pay. Theo filed for bankruptcy and the court entered a decree discharging Theo from his debts, including the credit card. Later, the bank sues Theo for the balance owed on the credit card. Theo may be able to assert a discharge in bankruptcy affirmative defense.

The case of Edrington vs. Gee explains more about the "discharge in bankruptcy" defense.

Duress

Duress occurs when a defendant is forced to act against their will due to an unlawful threat by the plaintiff. To claim this defense, the defendant must show:

1. The plaintiff threatened an action they had no legal right to take.

2. The threat caused the defendant to act unwillingly.

3. The defendant’s response was closely tied to the threat.

4. The defendant had no way to protect themselves from the threat.

Example: Stan wanted Shirley to sign an agreement to repay $200 with 200% interest. When she refused, Stan threatened to smash her car with a bat. Fearing harm, Shirley signed. If Stan later sues to enforce the agreement, Shirley may claim duress as a defense.

For more on how Texas courts apply this defense, see Sudan vs. Sudan (exploring what qualifies as duress) and Gooch vs. American Sling Co.(examining coercion in contract disputes).

Estoppel

Estoppel prevents a plaintiff from making a legal claim that contradicts their earlier position, especially when doing so would unfairly harm the defendant. This defense exists to prevent injustice caused by fraud or inconsistency. There are different types of estoppel, including:

Promissory Estoppel

This applies when:

• The plaintiff made a promise.
• The defendant reasonably relied on that promise and suffered harm.
• The plaintiff knew or should have known the defendant would rely on the promise.
• The only way to avoid injustice is to enforce the promise.

Equitable Estoppel

This applies when:

• The plaintiff misled or withheld important information.
• The defendant relied on that information to their detriment.

For more on how Texas courts apply estoppel, see Ford v. City State Bank (promissory estoppel) and Kuehnoefer v. Welch (equitable estoppel).

Contributory Negligence

Contributory negligence asks whether the plaintiff’s own actions contributed to their injuries. Texas follows a proportionate responsibility system, meaning courts assign each party a percentage of fault. A plaintiff’s recovery may be reduced—or barred—depending on their share of responsibility.

Example: Luke was driving with worn brake pads. Ben, distracted by texting, crossed the street in the rain without looking. Luke hit Ben, and Ben sued. Luke may argue contributory negligence, claiming Ben’s inattention contributed to the accident.

For more on how Texas courts apply this defense, see Stewart Title Guarantee Co. vs. Sterling and First Title Co. of Waco vs. Garrett.

Failure of Consideration

This defense applies when the plaintiff was required to act before the defendant but failed to do so in a substantial way.

Consideration refers to something of value exchanged in a contract—if one party does not fulfill their obligation, the other may not be required to perform.

Example: Fitz, a dancer, and Liz, a business student, agree to open a dance studio. Liz will handle finances, marketing, and securing a studio, while Fitz will teach. Liz fails to set up utilities but sues Fitz for not teaching. Fitz may claim failure of consideration since Liz did not meet her initial obligations.

To learn more about the defense of "no consideration," read Roark vs. Stallworth Oil and Gas, Inc.

Fraud

To use fraud as an affirmative defense, the defendant must prove that the plaintiff knowingly or recklessly made a false and important representation to him, believing that the defendant would rely and act on it.

Example: Marianne wants to add a swimming pool to her home in time for an important visit from a supervisor from the corporate office in three months. She interviews many contractors and asks how long it will take to install a pool. All show her how their suppliers have a specific part she will need on backorder for four months. However, John states he will finish the pool in two months and creates a fake letter from a supplier saying he has the pool part she needs in stock. Marianne hires John, and the pool is not completed in time for the visit. Marianne refuses to pay the full amount of the bill, and John files a lawsuit against her. Marianne may be able to use fraud as an affirmative defense.

For more about the defense of "fraud," read Eagle Properties, Ltd vs. Scharbauer.

Illegality

The defendant may claim the affirmative defense of illegality if the plaintiff and the defendant agree in a contract to commit an illegal act. The court will not enforce a contract to perform an illegal act.

Example: Emma and Elton write an agreement to import Emma’s pickles into England where Elton will sell them. Suppose permits are required to import any pickled vegetables into England. But neither Emma nor Elton obtained the permits. Now Elton is suing Emma for not sending him the pickles. Emma may be able to use illegality as an affirmative defense.

The case of Gas Systems, Inc. vs. Dean explains more about the defense of illegality.

Injury to Fellow Servant

In the injury to fellow servant affirmative defense, the defendant is claiming he is not responsible for injury to his employee, the plaintiff, if the plaintiff is injured due to another employee’s actions.

Example:Ray and LeeAnn are coworkers at Target Lawns. LeeAnn is in charge of maintaining all of the lawnmowers. However, she fails to keep up with servicing them. Ray is later using one, when it catches on fire. Ray is hurt and sues Target Lawns for his injuries. Target Lawns may be able to use injury to a fellow servant as an affirmative defense.

See City of San Antonio vs. Mendoza.

Laches

Laches prevents a plaintiff from suing after an unreasonable delay, even if the statute of limitations has not expired. To use this defense, the defendant must show:

• The plaintiff unreasonably delayed enforcing their rights.

• The delay harmed the defendant’s ability to defend themselves.

• Extraordinary circumstances justify barring the lawsuit.

Example: Jimmy, Brad, and John are celebrating John’s birthday. Brad accidentally knocks Jimmy down, breaking his hand and ending his guitar career. John witnesses the accident, but Jimmy waits to sue Brad until after John dies, preventing his testimony. Brad may argue laches, claiming the delay unfairly harmed his defense.

For more on this defense, read Wayne vs. A.V.A. Vending, Inc.

License

The affirmative defense of license may be used in a situation where the defendant has been given a legal right to the use of a good or property that the plaintiff is now filing a lawsuit over.

Example: Kathy owns the patent to a newly designed bow and arrow set. Gale wants to make and sell these sets in his store, so he signs a licensing agreement with Kathy. In exchange for ten payments of $500, Gale will have a license for one year to sell the bow and arrow sets in his store. Kathy later sues Gale for selling the bow and arrow sets in his store. Gale may be able to use the license affirmative defensive.

See American Mfg. Co. of Tex. vs. Witter.

Release

A release is an agreement where one person agrees that the other person will not be held responsible for a negative outcome that may result from an action. The release must be written in clear terms and be noticeably visible in the contract.

Example: Marjorie runs a paint studio where customers create their own artwork. She warns them that the paint is permanent and requires them to sign a release stating she isn’t responsible for clothing damage. Jeffrey signs the release but ruins his $500 jeans with paint. If he sues, Marjorie may use release as a defense.

SeeDresser Industries, Inc. vs. Page Petroleum, Inc.

Res Judicata

The affirmative defense of res judicata prohibits a finished case involving generally the same parties from being done again, along with related issues that should have already been decided in that case.

Example: Marcella hits Tommy’s car in a minor accident. Tommy sues for damages, including a loose side mirror. He wins, and Marcella pays the judgment. Months later, the mirror falls off, and Tommy sues again for its replacement. Marcella may use res judicata, arguing the case was already settled.

See Barr vs. Resolution Trust Corp. ex. rel. Sunbelt Federal Sav.

Statute of Frauds

The statute of frauds requires certain contracts to be in writing and signed by the defendant to be legally enforceable. Contracts that must be in writing include:

• Agreements that cannot be completed within a year

• Sales of goods over $500

• Real estate sales (land or homes)

Example: Ed agrees to buy a gold ring from Katie for $3,000, paying in three monthly installments. They make the deal orally, and Katie gives him the ring. After one payment, Ed stops, believing the ring isn’t real gold. Katie sues for the remaining payments. Ed may use the statute of frauds as a defense because the sale was over $500 and not in writing.

See Texas Business and Commerce Code 2.201 and 26.01.

Waiver

A defendant may claim waiver as a defense if the plaintiff voluntarily gave up a legal right. This can be done orally, in writing, or through actions.

Example: Sandy agrees to sell Aria’s wolf paintings and requires Aria to agree to mediation for any disputes. Aria signs the contract and starts producing artwork. Later, Sandy stops selling the paintings, and Aria sues. Sandy may use waiver as a defense, arguing that Aria agreed to mediate before suing.

ReadVessels vs. Anschutz Corp.

Should I get more help?

Yes. This article is not a substitute for legal advice. An attorney can help you identify defenses and legal options. Find free legal aid through TexasLawHelp’s Legal Help Directory or a clinic. Limited scope representation can make private attorneys more affordable. Law libraries have helpful books for research.

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