Rule 728.Burden of Proof

Last verified June 28, 2026

In one sentenceRule 728 fixes the burden of proof in the trial of the right of property — on the plaintiff if the property was taken from the claimant's possession, and on the claimant if it was taken from the defendant's.

Full Text of Rule 728

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If the property was taken from the possession of the claimant pursuant to the original writ, the burden of proof shall be on the plaintiff in the writ. If it was taken from the possession of the defendant in such writ, or any other person than the claimant, the burden of proof shall be on the claimant.

End

Plain-English Summary

Rule 728 allocates the burden. If the property was taken from the possession of the claimant under the original writ, the burden of proof is on the plaintiff in the writ to show that the property was subject to the levy. If it was taken from the defendant's possession, the burden is on the claimant to establish the right to it.

Frequently Asked Questions

Who has the burden in a trial of the right of property in Texas?

Under Rule 728, the plaintiff if the property came from the claimant's possession; the claimant otherwise.

Why does Rule 728 put the burden on the plaintiff sometimes and the claimant other times?

The burden follows possession before the levy — whoever's position the levy disturbed has to prove up the case.

Does Rule 728 apply if the property was taken from someone other than the claimant or defendant?

Yes. If it wasn't taken from the claimant's possession, the burden falls on the claimant, whether it came from the defendant or another person.

Source & verification. Rule text and the official Notes and Comments are reproduced verbatim from the Texas Rules of Civil Procedure (Tex. R. Civ. P. 728), published by the Texas Judicial Branch (txcourts.gov). Promulgated by the Supreme Court of Texas. The plain-English summary is original and draws on official sources. Last verified June 28, 2026. · Official source

Also known as: burden of proof trial of right of propertywho proves ownership in property claim trialburden shifts based on possessionplaintiff versus claimant burden of proofTRCP 728