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New Texas State Court Rules For Motions To Dismiss And Expedited Trials


Effective March 1, 2013, the Texas Supreme Court revised the Texas Rules of Civil Procedure by 1) allowing defendants, for the first time in Texas state court practice, to file the equivalent of a  Federal Rule 12(b)(6) motion, and 2) providing an expedited trial procedure for cases involving less than $100,000 in controversy.  Both of these revisions could prove valuable for our clients with cases filed in Texas state court.   

Early Dismissal of Meritless Cases:  Rule 91a

1.  The Basics 

Under new Rule 91a, a party may move to dismiss a cause of action that has “no basis in law or fact.”  A claim has no basis in law if the allegations, taken as true, together with any reasonable inferences, “do not entitle the claimant to relief.”  A claim has no basis in fact if “no reasonable person could believe the facts as pleaded.”  As parties begin to file motions under Rule 91a, the law will develop as Texas courts interpret the Rule 91a standard, which differs from the “plausibility” standard from the U.S. Supreme Court’s Rule 12(b)(6) decisions in Twombly and Iqbal, familiar to federal litigators. 

2.  Timing 

A Rule 91a movant must file the motion within 60 days after the first pleading that contains the cause of action at issue is served on the movant and at least 21 days before the hearing on the motion.  Each party is entitled to 14 days’ notice of the hearing, although the court may decide the motion on the written submissions.  The response is due seven days before the hearing.  If the respondent amends the cause of action at least three days before the hearing, the movant may withdraw or amend the motion.   

If the movant amends the motion, the Rule 91a time periods begin again.  If the respondent nonsuits at least three days before the hearing, the court may not rule on the motion to dismiss.  If the respondent’s amendment or nonsuit is not timely, however, the court must rule on the motion and may not consider the amendment or nonsuit.

3.  The Court’s Ruling 

The court must rule on the motion within 45 days after its filing, which seems to invite movants to seek mandamus relief if the court fails to timely rule.  The court may not consider any evidence in deciding the motion.

4.  Mandatory Fee Award 

Except in litigation by or against the government, the prevailing party on a Rule 91a motion is entitled to an award of fees and costs incurred on the challenged cause of action.  The trial court must consider evidence in deciding the amount of the mandatory award. 

5.  Application 

Rule 91a applies to all cases, including those pending on March 1, 2013, other than cases brought under the Texas Family Code or in inmate litigation.

6.  Effect on Order of Pleadings 

Rule 91a does not affect the order of pleadings under the Texas Rules of Civil Procedure:  a party seeking to make a special appearance or motion to transfer venue must still file those pleadings before filing a Rule 91a motion to dismiss.

Expedited Actions:  Rule 169

1.  The Basics   

Cases (other than those filed in justice court or brought under the Texas Family Code, Property Code, or Tax Code, or healthcare liability claims brought under Chapter 74 of the Texas Civil Practice & Remedies Code) where the amount of controversy is $100,000 or less (including penalties, costs, expenses and attorney fees) and no non-monetary relief will now be governed by expedited trial procedures, which include streamlined discovery and a trial schedule aimed at swift resolution.  Rule 169 is mandatory, absent the exceptions discussed below. 

In addition to new Rule 169, the Texas Supreme Court revised the following existing rules:

2.  Removal of Cases from the Expedited Process  

Cases must be removed from the expedited process for any of the following reasons:

The comments to Rule 169 provide some guidance on whether “good cause” exists, which may include:

3.  Referral of the Expedited Case to ADR 

Under the final version of Rule 169(d), the court may refer the case to ADR unless the parties have agreed not to engage in ADR.  The ADR procedure must meet the following parameters:

The parties may agree to engage in a form of ADR other than as provided for in the Rule.

4.  Continuances of Expedited Actions 

A court may continue an expedited case twice, not to exceed a total of 60 days. 

5.  Trial of Expedited Actions 

On any party’s motion, the court must set the case for trial to begin within 90 days after the discovery deadline.  Each side has eight hours at trial, a change from five hours under the previous version of the Rule.  The court may extend additional time to “no more than twelve hours per side” on motion for good cause. 

The Takeaway

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