Texas Rule Of Civil Procedure 91a

Prevalence and Practicality Two Years Later

For many years, a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) has provided an effective tool for dismissing baseless claims early in the litigation process. The Texas Rules of Civil Procedure did not offer an equivalent rule until Rule 91a became effective March 1, 2013.1 This update examines the prevalence and practical application of Rule 91a since its enactment.

The Basics

Rule 91a of the Texas Rules of Civil Procedure allows a party to seek dismissal of a groundless cause of action. Tex. R. Civ. P. 91a. The rule provides in pertinent part:

[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.2

Timing is important. The motion must be filed within 60 days after the first pleading containing the challenged cause of action is served. Tex. R. Civ. P. 91a.3(a). Twenty-one days' notice is required before a hearing. Tex. R. Civ. P. 91a.3(b). A court may not rule on a motion to dismiss if a respondent to the challenged cause of action files a nonsuit at least three days before the hearing. Tex. R. Civ. P. 91a.5(a). A court must3 award the prevailing party all costs and reasonable and necessary attorney fees incurred with respect to the challenged cause of action. Tex. R. Civ. P. 91a.7.

Availability of Appeal and Standard of Review

A court order granting a motion to dismiss is final and may be appealed. A party may obtain an interlocutory appeal from the denial of a motion to dismiss pursuant to Texas Rule of Civil Procedure 168 and section 51.014(d) of the Texas Civil Practice & Remedies Code, which allows an interlocutory appeal if a trial court finds (1) the order involves a controlling question of law as to which there is a substantial ground for difference of opinion, and (2) an immediate appeal from the order may materially advance the ultimate termination of the litigation.4 An appellate court will review the trial court's ruling on a question of law de novo. See id. A trial court's order on a Rule 91a motion is considered a question of law.5

Prevalence of Rule 91a

Eleven appellate court opinions stem from decisions based on Rule 91a. Of those eleven...