Effective litigators in Texas State courts need to be familiar with the Texas Rules of Civil Procedure (“the Rules”) and need to follow them. The consequences of being ignorant or indifferent to the Rules can be harsh.
In 2011, Rule 91a was put into effect. This is essentially a state court equivalent of the Federal 12(b)(6) motion allowing for the dismissal of claims that have no basis in law or fact. There is certainly frustration that naturally arises when you are sued. This is magnified when the claims are without merit. Rule 91a now gives defendants in Texas lawsuits the ability to get rid of frivolous claims and to do it quickly. Further, it creates the opportunity to recover attorneys’ fees.
Bower PLLC clients trust us to properly advance offensive claims and to defend them from opposing Parties who refuse to adhere to the Texas Rules of Civil Procedure. In the past we have used our knowledge of the Rules to have opponents’ baseless causes of action removed from the suit using the procedures made available by Rule 91a.
“RULE 91a. DISMISSAL OF BASELESS CAUSES OF ACTION
91a.1 Motion and Grounds. Except in a case brought under the Family Code or a case governed by Chapter 14 of the Texas Civil Practice and Remedies Code, a party may move to dismiss a cause of action on the grounds that it has no basis in law or fact. A cause of action has no basis in law if the allegations, taken as true, together with inferences reasonably drawn from them do not entitle the claimant to the relief sought. A cause of action has no basis in fact if no reasonable person could believe the facts pleaded.
91a.2 Contents of Motion. A motion to dismiss must state that it is made pursuant to this rule, must identify each cause of action to which it is addressed, and must state specifically the reasons the cause of action has no basis in law, no basis in fact, or both.
91a.3 Time for Motion and Ruling. A motion to dismiss must be:
(a) filed within 60 days after the first pleading containing the challenged cause of action is served on the movant;
(b) filed at least 21 days before the motion is heard; and
(c) granted or denied within 45 days after the motion is filed.
91a.4 Time for Response. Any response to the motion must be filed no later than 7 days before the date of the hearing.
91a.5 Effect of Nonsuit or Amendment; Withdrawal of Motion.
(a) The court may not rule on a motion to dismiss if, at least 3 days before the date of the hearing, the respondent files a nonsuit of the challenged cause of action, or the movant files a withdrawal of the motion.
(b) If the respondent amends the challenged cause of action at least 3 days before the date of the hearing, the movant may, before the date of the hearing, file a withdrawal of the motion or an amended motion directed to the amended cause of action.
(c) Except by agreement of the parties, the court must rule on a motion unless it has been withdrawn or the cause of action has been nonsuited in accordance with (a) or (b). In ruling on the motion, the court must not consider a nonsuit or amendment not filed as permitted by paragraphs (a) or (b).
(d) An amended motion filed in accordance with (b) restarts the time periods in this rule.
91a.6 Hearing; No Evidence Considered. Each party is entitled to at least 14 days’ notice of the hearing on the motion to dismiss. The court may, but is not required to, conduct an oral hearing on the motion. Except as required by 91a.7, the court may not consider evidence in ruling on the motion and must decide the motion based solely on the pleading of the cause of action, together with any pleading exhibits permitted by Rule 59.
91a.7 Award of Costs and Attorney Fees. Except in an action by or against a governmental entity or a public official acting in his or her official capacity or under color of law, the court may award the prevailing party on the motion all costs and reasonable and necessary attorney fees incurred with respect to the challenged cause of action in the trial court. Any award of costs or fees must be based on evidence.
91a.8 Effect on Venue and Personal Jurisdiction. This rule is not an exception to the pleading requirements of Rules 86 and 120a, but a party does not, by filing a motion to dismiss pursuant to this rule or obtaining a ruling on it, waive a special appearance or a motion to transfer venue. By filing a motion to dismiss, a party submits to the Court’s jurisdiction only in proceedings on the motion and is bound by the court’s ruling, including an award of attorney fees and costs against the party.
91a.9 Dismissal Procedure Cumulative. This rule is in addition to, and does not supersede or affect, other procedures that authorize dismissal.
Notes and Comments
Comment to 2013 change: Rule 91a is a new rule implementing section 22.004(g) of the Texas Government Code, which was added in 2011 and calls for rules to provide for the dismissal of causes of action that have no basis in law or fact on motion and without evidence. A motion to dismiss filed under this rule must be ruled on by the court within 45 days unless the motion, pleading, or cause of action is withdrawn, amended, or nonsuited as specified in 91a.5. If an amended motion is filed in response to an amended cause of action in accordance with 91a.5(b), the court must rule on the motion within 45 days of the filing of the amended motion and the respondent must be given an opportunity to respond to the amended motion. The term hearing
in the rule includes both submission and an oral hearing. Attorney fees awarded under 91a.7 are limited to those associated with challenged cause of action, including fees for preparing or responding to the motion to dismiss.
Comment to 2019 change: Rule 91a.7 is amended to implement changes to section 30.021 of the Texas Civil Practice and Remedies Code. The amendments to Rule 91a.7 apply only to civil
actions commenced on or after September 1, 2019. A civil action commenced before September 1, 2019 is governed by the rule as adopted in Misc. Docket No. 13-9022.”
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This page was originally posted on 5/8/2018. It was last updated on 8/25/2022.