It is no secret that Austin has, over the last several years, been one of America’s great boomtowns. According to the 2022 Census estimate, Austin is now the tenth largest city in the United States, with much of that population growth coming from transplants moving into the Austin area from out of state. With all of the people moving into Austin and Travis County from out of state, it is likely that choice of law issues are more prevalent to those seeking legal services in the Austin area than ever before.

Texas Courts will, at times, apply the law of another state to a lawsuit that has been filed in Texas. The analysis and determination of what law (Texas law or the law of another state) should apply to a particular case is known as a choice of law issue. It must be stressed that choice of law issues can become incredibly complicated very quickly. This blog will briefly discuss how Texas Courts deal with choice of law issues and will then discuss some common choice of law issues.

However, if you are a recent transplant to the Austin area and you find yourself facing a family law issue, the first question you should ask yourself is not what law will the Texas Court apply, but rather do the Texas Courts have the authority to hear my case at all?

Courts in the American legal system must have jurisdiction over the parties and the subject matter of the lawsuit in order to hear the case. Jurisdiction can be thought of the power of a court to decide cases. In the American legal system courts have limited jurisdiction, meaning that not every court can hear every case. In a Texas divorce, the Court’s jurisdiction is determined by how long the parties have lived in both in Texas and the Texas county they reside in. A divorce in Texas can be filed in the District Court of the county where either party has lived for the last ninety days, provided the parties also lived in Texas for the past six months. In a Texas child custody dispute, the court’s jurisdiction is determined by the child’s residence. Generally, Texas courts have jurisdiction over a child if Texas is the child’s home state at the time the lawsuit was filed. Texas will be considered a child’s home state if the child lived in Texas with a parent for at least six consecutive months immediately before the custody case was filed.

If you find yourself facing a family law issue in a Texas court, and you believe that the Texas court does not have jurisdiction over you and your family, it is important to consult with an attorney straight away. It is possible to challenge the jurisdiction of a Texas court. However, it is also possible, through the careless response to a lawsuit, to waive your right to challenge a court’s jurisdiction. Therefore, it is extremely important to speak with a lawyer as soon as you learn the existence of a lawsuit to determine if the court has jurisdiction.

Once you are sure that the court in question does have jurisdiction over your case, you can then ask if that court will apply the laws of Texas or the laws of some other state. When handling choice of law issues, courts in Texas will typically apply a three-part test.

1) First, the Texas court will analyze the legal issue in question and determine if the law of Texas differs from the law of the other state. If there is no difference in the laws between the two states, then there is no real choice of law issue, and the Texas court will apply Texas law. If the laws of the Texas and the other state do differ, then the Texas court will move to step two.

2) Next, the Texas court will examine the issue before the court and all the surrounding circumstances and will determine what state has the most significant contacts or most significant relationship with the parties and the legal issue before the court.

3) Finally, the Court will determine whether a limitation applies that would prevent the Court from apply the law of the state with the most significant relationship.

If no limitation exists that would prevent the Texas court from applying the law of the state with the most significant relationship, the Texas court will apply that state’s law.

The most important thing to remember is that, when you think you might be confronted with a choice of law issue, be sure to consult with an attorney straightaway.


Written by John D. Boone