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Texas Motion to Dismiss

In Texas you move to dismiss a baseless claim under TRCP 91a within 60 days, with fee-shifting under 91a.7.

Introduction

In Texas, a defendant attacks a baseless claim by filing a motion to dismiss under Texas Rule of Civil Procedure 91a, titled Dismissal of Baseless Causes of Action. The rule lets a party move to dismiss a cause of action on the grounds that it has no basis in law or no basis in fact. A claim has no basis in law if the allegations, taken as true with reasonable inferences, do not entitle the claimant to the relief sought; it has no basis in fact if no reasonable person could believe the facts pleaded. This is broader than federal Rule 12(b)(6), which reaches only legal insufficiency. The motion has its own deadline: it must be filed within 60 days after the first pleading containing the challenged claim is served, filed at least 21 days before the hearing, and the court must rule within 45 days after it is filed. That 60-day window runs separately from the answer deadline under Rule 99(b), so filing a 91a motion does not by its terms replace or extend your answer. The distinctive Texas feature is Rule 91a.7 fee-shifting: the court may award the prevailing party on the motion costs and reasonable attorney fees, with no federal 12(b)(6) analog. Family Code and Chapter 14 inmate cases are excluded. DocDraft drafts a Texas-formatted motion from your facts, with attorney review available before you file.

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Key Things to Know

  1. 1

    The Texas vehicle is a motion to dismiss under Texas Rule of Civil Procedure 91a, Dismissal of Baseless Causes of Action, which implements Tex. Gov't Code section 22.004(g). For curing a defective or unclear pleading rather than dismissing it, Texas uses Special Exceptions under Rule 91, a distinct vehicle.

  2. 2

    Rule 91a has two grounds: no basis in law (the allegations, taken as true with reasonable inferences, do not entitle the claimant to the relief sought) and no basis in fact (no reasonable person could believe the facts pleaded). It is broader than federal Rule 12(b)(6) because it reaches both legal and factual baselessness.

  3. 3

    The 91a motion has its own deadline, separate from the answer window. It must be filed within 60 days after the first pleading containing the challenged cause of action is served on the movant, and at least 21 days before the motion is heard. The general civil answer deadline under Rule 99(b) is by 10:00 a.m. on the Monday next after 20 days from service.

  4. 4

    The court must grant or deny the 91a motion within 45 days after it is filed. Filing the motion does not by its terms replace or extend the answer deadline, so the 60-day 91a window and the answer clock run separately.

  5. 5

    Rule 91a does not contain a statewide pre-filing meet-and-confer requirement, unlike California's demurrer. A particular court's local rules or standing order may require conferral or a proposed order; check your court's local rules.

  6. 6

    The most common ground is that the claim has no basis in law, the Texas analog to failure to state a claim. The court may not consider evidence and decides the motion based solely on the pleading of the challenged cause of action, together with permitted pleading exhibits, under Rule 91a.6.

  7. 7

    You file the motion with the clerk of the court where the suit is pending: a District Court or a statutory County Court at Law. Rule 91a does not apply in Justice (small claims) Court. The distinctive Texas feature is Rule 91a.7 fee-shifting, under which the court may award the prevailing party costs and reasonable attorney fees on the challenged cause of action.

Key Decisions

Choosing the Grounds for Dismissal

Timing and Strategy

Filing and Serving the Motion

Customize your Motion to Dismiss Template with DocDraft

CAUSE NO. ____________________

[PLAINTIFF NAME], IN THE [DISTRICT / COUNTY] COURT Plaintiff,

v. [____] JUDICIAL DISTRICT / AT LAW NO. [__]

[DEFENDANT NAME], Defendant. [____________] COUNTY, TEXAS

DEFENDANT'S MOTION TO DISMISS UNDER TEXAS RULE OF CIVIL PROCEDURE 91a

TO THE HONORABLE JUDGE OF SAID COURT:

Defendant [DEFENDANT NAME] files this Motion to Dismiss under Texas Rule of Civil Procedure 91a and moves the Court to dismiss the cause(s) of action identified below on the ground that each has no basis in law, no basis in fact, or both, and respectfully shows the Court the following:

I. STATEMENT UNDER RULE 91a

  1. This motion is made under Texas Rule of Civil Procedure 91a, Dismissal of Baseless Causes of Action.

  2. This motion is filed within 60 days after the first pleading containing the challenged cause(s) of action was served on Defendant, and is set for hearing at least 21 days after filing.

II. CHALLENGED CAUSE(S) OF ACTION

  1. Defendant challenges the following cause(s) of action asserted in Plaintiff's [Original Petition / pleading]: [identify each challenged cause of action].

III. GROUNDS

  1. No basis in law. 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. [State specifically why each challenged claim has no basis in law.]

  2. No basis in fact. A cause of action has no basis in fact if no reasonable person could believe the facts pleaded. [State specifically why each challenged claim has no basis in fact, if applicable.]

IV. MEMORANDUM AND AUTHORITIES

  1. The Court may not consider evidence in ruling on this motion and must decide the motion based solely on the pleading of the challenged cause(s) of action, together with any pleading exhibits permitted by Rule 91a.6. [Set out the legal argument and authorities supporting dismissal.]

V. ATTORNEY FEES AND COSTS

  1. Under Texas Rule of Civil Procedure 91a.7, Defendant requests that the Court award Defendant, as the prevailing party on this motion, all costs and reasonable and necessary attorney fees incurred with respect to the challenged cause(s) of action, on evidence to be presented.

VI. PRAYER

  1. Defendant respectfully requests that the Court grant this motion, dismiss the challenged cause(s) of action, award costs and reasonable attorney fees under Rule 91a.7, and grant all other relief to which Defendant is entitled.

Respectfully submitted,

[ATTORNEY / PRO SE NAME] [State Bar No., if attorney] [Address] [Telephone / Email] [Attorney for Defendant / Defendant Pro Se]

CERTIFICATE OF SERVICE

I certify that on [DATE] a true and correct copy of the foregoing was served on all counsel of record / parties of record in accordance with the Texas Rules of Civil Procedure.

[NAME]

Texas Requirements for Motion to Dismiss

File the 91a motion within 60 days of service

Under Texas Rule of Civil Procedure 91a.3, the motion to dismiss must be filed within 60 days after the first pleading containing the challenged cause of action is served on the movant. This window runs separately from the answer deadline.

Set the hearing at least 21 days out and expect a ruling within 45 days

Rule 91a.3 requires the motion to be filed at least 21 days before it is heard, and the court must grant or deny the motion within 45 days after it is filed.

State both Rule 91a grounds that apply

Rule 91a permits dismissal where the claim has no basis in law (allegations taken as true, with reasonable inferences, do not entitle the claimant to relief) or no basis in fact (no reasonable person could believe the facts pleaded). Identify which ground or grounds apply to each challenged claim.

Confirm the claim is not carved out of Rule 91a

Rule 91a does not apply to cases brought under the Family Code or governed by Chapter 14 of the Texas Civil Practice and Remedies Code (inmate litigation). Confirm the challenged claim is not within these exclusions.

State that the motion is made under Rule 91a and specify the reasons

Rule 91a.2 requires the motion to state that it is made under Rule 91a, identify each challenged cause of action, and state specifically the reasons the cause of action has no basis in law, no basis in fact, or both. No statewide page limit is fixed by Rule 91a; general pleading-format rules under Rule 45 apply.

Do not attach evidence; the court decides on the pleadings

Under Rule 91a.6 the court may not consider evidence and must decide the motion based solely on the pleading of the challenged cause of action, together with any permitted pleading exhibits.

File in District Court or County Court at Law and serve all parties

File the motion with the clerk of the court where the suit is pending, a Texas District Court or statutory County Court at Law. Rule 91a does not apply in Justice (small claims) Court. Serve all parties of record per the Texas Rules of Civil Procedure.

Request fee-shifting under Rule 91a.7

Under Rule 91a.7 (amended effective September 1, 2019), the court may award the prevailing party on the motion all costs and reasonable and necessary attorney fees on the challenged cause of action, except in actions by or against a governmental entity or public official; any award must be based on evidence.

Frequently Asked Questions

File a motion to dismiss under Texas Rule of Civil Procedure 91a with the clerk of the District Court or statutory County Court at Law where the suit is pending. The motion must state that it is made under Rule 91a, identify each challenged cause of action, and state specifically why the claim has no basis in law, no basis in fact, or both.

A Rule 91a motion must be filed within 60 days after the first pleading containing the challenged cause of action is served on the movant, and at least 21 days before the motion is heard. The court must grant or deny it within 45 days after it is filed. This window is separate from the answer deadline.

Rule 91a allows dismissal on two grounds: no basis in law and no basis in fact. A claim has no basis in law if the allegations, taken as true with reasonable inferences, do not entitle the claimant to the relief sought. It has no basis in fact if no reasonable person could believe the facts pleaded. Family Code and Chapter 14 inmate cases are excluded.

Rule 91a contains no statewide pre-filing meet-and-confer requirement, unlike California's demurrer rule. Rule 91a.5 instead governs amendment or withdrawal of a claim in response to the motion. A particular court's local rules or standing order may require conferral, so check your court's local rules.

If the court denies the Rule 91a motion, the challenged cause of action proceeds. Under Rule 91a.7 the court may award the prevailing party on the motion costs and reasonable attorney fees on the challenged claim, except in actions by or against a governmental entity or public official, and any award must be based on evidence.

File with the clerk of the court where the suit containing the challenged cause of action is pending. Rule 91a applies in District Courts and statutory County Courts at Law, the general civil trial courts. It does not apply in Justice (small claims) Court. District Courts have no maximum jurisdictional limit; County Courts at Law commonly hear claims up to $250,000.