The Texas nonsuit: an absolute right, with four things it does not get you out of
Texas procedure · Last verified August 17, 2026
Texas gives a plaintiff something unusual: the right to walk away from its own lawsuit, at almost any point, without asking anyone's permission. It is called a nonsuit, and Rule 162 makes it close to automatic.
What it is not is an escape hatch. The same rule lists four things that survive a nonsuit, and a plaintiff who takes one expecting a clean exit can find the case continuing without them in it.
The rule
Tex. R. Civ. P. 162 is one paragraph and worth reading whole:
At any time before the plaintiff has introduced all of his evidence other than rebuttal evidence, the plaintiff may dismiss a case, or take a non-suit, which shall be entered in the minutes. Notice of the dismissal or non-suit shall be served in accordance with Rule 21a on any party who has answered or has been served with process without necessity of court order. Any dismissal pursuant to this rule shall not prejudice the right of an adverse party to be heard on a pending claim for affirmative relief or excuse the payment of all costs taxed by the clerk. A dismissal under this rule shall have no effect on any motion for sanctions, attorney's fees or other costs, pending at the time of dismissal, as determined by the court. Any dismissal pursuant to this rule which terminates the case shall authorize the clerk to tax court costs against dismissing party unless otherwise ordered by the court.
The timing, which is later than people think
The cutoff is "before the plaintiff has introduced all of his evidence other than rebuttal evidence." That is the close of the plaintiff's case in chief — not the pleadings stage, not the discovery deadline, not the eve of trial.
A plaintiff can take a nonsuit during trial, after voir dire, after opening statements, after witnesses have testified — right up until it rests. Rebuttal evidence is expressly excluded from the calculation, so reserving rebuttal does not keep the window open.
And no court order is required. The rule says the nonsuit "shall be entered in the minutes", and notice is served "without necessity of court order."
Notice is still required
The one procedural obligation: notice under Rule 21a to "any party who has answered or has been served with process."
That is broader than it first appears. It includes defendants who were served but never appeared — not only those actively litigating.
The four things a nonsuit does not touch
This is the part that decides whether taking one is a good idea.
1. A pending claim for affirmative relief. The rule says a dismissal "shall not prejudice the right of an adverse party to be heard on a pending claim for affirmative relief." Rule 96 says the same thing from the counterclaim side:
Where the defendant has filed a counterclaim seeking affirmative relief, the plaintiff shall not be permitted by a discontinuance of his suit, to prejudice the right of the defendant to be heard on such counterclaim.
So if the defendant has counterclaimed, nonsuiting removes your claims and leaves you as a defendant in a case you filed. That is the single biggest trap in Rule 162.
2. Costs taxed by the clerk. A nonsuit does not "excuse the payment of all costs taxed by the clerk" — and the final sentence goes further: a dismissal that terminates the case "shall authorize the clerk to tax court costs against dismissing party unless otherwise ordered by the court." The default is that costs land on the party who walked away.
3. Pending sanctions motions. A dismissal "shall have no effect on any motion for sanctions … pending at the time of dismissal, as determined by the court." Nonsuiting to moot a sanctions motion does not work — provided the motion was pending at the time of dismissal.
4. Pending attorney's fees and other costs. Same sentence, same result.
| What you are trying to escape | Does a nonsuit work? |
|---|---|
| Your own claims | yes |
| A counterclaim for affirmative relief | no — Rules 162 and 96 |
| Court costs | no — and they default to you |
| A sanctions motion pending at dismissal | no |
| A pending claim for attorney's fees | no |
The words "pending at the time of dismissal" are doing the work in items 3 and 4. The sequence matters.
Dropping some parties but not others
Rule 163 covers the partial nonsuit:
When it will not prejudice another party, the plaintiff may dismiss his suit as to one or more of several parties who were served with process, or who have answered, but no such dismissal shall in any case, be allowed as to a principal obligor, except in the cases provided for by statute.
Two limits, both easy to overlook: the partial dismissal must not prejudice another party, and it is not available as to a principal obligor except where a statute provides otherwise. That second restriction stops a plaintiff dropping the primary debtor and pursuing only a surety or guarantor.
How Texas compares
| Texas | Federal | California | Virginia | |
|---|---|---|---|---|
| Name | nonsuit | voluntary dismissal | voluntary dismissal | nonsuit |
| Court order needed | no | not before an answer or summary-judgment motion | no, before trial | no, with limits |
| How late you can take it | until the plaintiff rests | before answer, or by stipulation, else by order | before commencement of trial | before the case is submitted |
| Counterclaim survives | yes | yes | yes | yes |
| Costs default to the dismissing party | yes | in the court's discretion | yes | yes |
| Pending sanctions survive | expressly yes | generally yes | — | — |
| Limit on dismissing a principal obligor | yes, Rule 163 | no | no | no |
Texas is at the permissive end on timing — federal practice cuts off the free dismissal far earlier — and at the strict end on what survives.
A short checklist
- Check the docket for a counterclaim first. If the defendant has pleaded a claim for affirmative relief, a nonsuit leaves you defending it.
- Check for pending sanctions, fee, or cost motions. Anything pending at the moment of dismissal survives.
- Remember costs default to you under the last sentence of Rule 162, unless the court orders otherwise.
- You have until you rest — the deadline is the close of your evidence other than rebuttal, not any earlier procedural milestone.
- No motion or order is needed, but the nonsuit is entered in the minutes.
- Serve notice under Rule 21a on every party who has answered or been served, including those who never appeared.
- For a partial nonsuit, check Rule 163 — it must not prejudice another party, and you cannot drop a principal obligor except as a statute allows.
- Think about limitations before you file the nonsuit, not after. Rule 162 says nothing about refiling, and the limitations consequences sit outside these rules.
Where these rules live
- Tex. R. Civ. P. 96 — No Discontinuance
- Tex. R. Civ. P. 162 — Dismissal or Non-Suit
- Tex. R. Civ. P. 163 — Dismissal as to Parties Served, Etc.
- Tex. R. Civ. P. 21a — Methods of Service
This page explains what the rules say. It isn't legal advice, and the effect of a nonsuit on limitations and on refiling is governed by statute and case law this site doesn't cover.