The Texas motion to dismiss: Rule 91a runs on a 60-day clock and the loser can pay the fees

Texas does not have a general "motion to dismiss" the way most states do. What it has is Rule 91a, and it is stricter than the federal equivalent in both directions: the deadlines are hard numbers rather than the court's discretion, and the losing side can be ordered to pay the winner's attorney fees.

That fee exposure is the reason Rule 91a is used far less often than Rule 12(b)(6) is in federal court. Filing one is a decision with a price attached.

The two grounds

Tex. R. Civ. P. 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.

Two distinct grounds, defined in the rule itself:

The second is a high bar and rarely the real fight. Most Rule 91a motions are "no basis in law."

Note the two carve-outs at the front: Family Code cases and cases governed by Chapter 14 of the Civil Practice and Remedies Code are outside the rule entirely.

What the motion must say

Rule 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.

Three mandatory contents, and the first is easy to forget: the motion must say it is made under Rule 91a. It must then go cause of action by cause of action — a motion attacking "the petition" generally does not comply.

Every deadline in the rule

Rule 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.

Rule 91a.4:

Time for Response. Any response to the motion must be filed no later than 7 days before the date of the hearing.

And Rule 91a.6 adds the notice period: "Each party is entitled to at least 14 days' notice of the hearing on the motion to dismiss."

That 60-day window is measured from service of the first pleading containing the challenged cause of action — not from service of the original petition. A claim added by amendment starts its own 60 days.

No evidence — at all

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.

This is the sharpest difference from a federal Rule 12(b)(6) motion. A Rule 91a motion does not convert to summary judgment. The court "may not consider evidence" and decides "solely on the pleading" plus Rule 59 exhibits.

So attaching an affidavit does not help — and there is no risk of the motion turning into a summary judgment motion behind your back. If you need evidence, you need a Texas summary judgment motion instead.

An oral hearing is optional: "the court may, but is not required to, conduct an oral hearing."

The fee provision

Rule 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.

Read this before filing anything. The award runs to "the prevailing party on the motion" — which means the respondent if the motion is denied, not just the movant if it is granted.

Two limits worth noting: it is discretionary ("may award"), it does not apply in actions by or against a governmental entity or public official, and any award "must be based on evidence."

The escape hatch — and its three-day fuse

Rule 91a.5:

(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.

A claimant facing a Rule 91a motion has two ways out, both on a 3-day fuse before the hearing: nonsuit the challenged claim, or amend it.

But the rule closes the door firmly after that:

(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.

A nonsuit or amendment filed two days before the hearing is ignored — the court "must not consider" it and must still rule. That is the trap for a claimant who waits.

And under (d), an amended motion restarts the time periods, which resets the 45-day ruling clock.

For the nonsuit route generally, see the Texas nonsuit; for amending, see amending pleadings in Texas.

It does not waive your jurisdictional objections

Rule 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.

This matters because of how strict Texas is about order of filing. A Rule 91a motion does not waive a special appearance or a venue motion — but the rule is "not an exception to the pleading requirements of Rules 86 and 120a", so the special appearance still has to be sworn and filed first. See the Texas special appearance.

The last sentence is the sting: a party who files a Rule 91a motion submits to the court's jurisdiction for proceedings on the motion and is bound by the ruling, "including an award of attorney fees and costs against the party."

Rule 91a is not the only route

Rule 91a.9: "This rule is in addition to, and does not supersede or affect, other procedures that authorize dismissal."

Texas has several others, and Rule 91a is often the wrong one:

Special exceptions under Rule 91 are the more common tool and carry no fee risk — they point out a defect and normally give the pleader a chance to cure it. Where the problem is that the petition does not say enough, that is usually the better motion.

How Texas compares

A short checklist

1. Check the 60 days from service of the first pleading containing the claim — not from the original petition.
2. Price the fee risk first. The prevailing party on the motion may recover fees, and that includes the other side if you lose.
3. Say it is a Rule 91a motion and address each cause of action separately with specific reasons.
4. Do not attach evidence. The court may not consider it, and the motion will not convert.
5. Count backwards from the hearing — 21 days on file, 14 days' notice, response 7 days before.
6. If you are the claimant, move at least 3 days out. A nonsuit or amendment filed later is ignored and the court must still rule.
7. Ask whether special exceptions under Rule 91 fit better — no fee risk, and a chance to cure.
8. File the special appearance first if you have one. Rule 91a preserves it, but only if you kept the order right.

Where these rules live

• Tex. R. Civ. P. 91a — Dismissal of Baseless Causes of Action
• Tex. R. Civ. P. 91 — Special Exceptions
• Tex. R. Civ. P. 45 — Definition; System
• Tex. R. Civ. P. 47 — Claims for Relief
• Tex. R. Civ. P. 90 — Waiver of Defects in Pleading

This page explains what the rules say. It isn't legal advice, and what gives a cause of action a basis in law under Rule 91a is developed in case law this site doesn't cover.