The Texas special appearance: why Rule 120a has to be filed before anything else

Texas has a single, unforgiving rule for contesting personal jurisdiction, and its requirements are about order and form rather than substance. Get either wrong and the objection is gone — whatever the merits.

What the rule permits

Rule 120a:

Notwithstanding the provisions of Rules 121, 122 and 123, a special appearance may be made by any party either in person or by attorney for the purpose of objecting to the jurisdiction of the court over the person or property of the defendant on the ground that such party or property is not amenable to process issued by the courts of this State.

Note the scope. It reaches jurisdiction over the person or the property, and the ground is that the party or property "is not amenable to process issued by the courts of this State." A special appearance may be made as to an entire proceeding "or as to any severable claim involved therein."

Two requirements, and both are absolute

It must be sworn. "Such special appearance shall be made by sworn motion."

It must come first. The motion must be "filed prior to motion to transfer venue or any other plea, pleading or motion."

Then the accommodation that makes the rule workable:

provided however, that a motion to transfer venue and any other plea, pleading, or motion may be contained in the same instrument or filed subsequent thereto without waiver of such special appearance; and may be amended to cure defects.

So other filings are permitted — in the same instrument, or afterward. What is fatal is filing something else first.

The right to amend to cure defects is real and worth knowing: a special appearance that was filed first but was defective in form can be amended.

The consequence of getting the order wrong

Rule 120a states it in one sentence, and it admits of no exception:

Every appearance, prior to judgment, not in compliance with this rule is a general appearance.

Not "may be treated as." Is. A general appearance concedes personal jurisdiction, and Rule 121 explains why that ends the question: "An answer shall constitute an appearance of the defendant so as to dispense with the necessity for the issuance or service of citation upon him."

This is the same ordering discipline as Illinois's 735 ILCS 5/2-301(a-6) and CPLR 320(b), and it is the reason a defendant who intends to contest jurisdiction cannot safely file anything — not an agreed extension, not a motion for more time — before the special appearance.

What does not waive it

Rule 120a expressly protects ordinary litigation conduct:

The issuance of process for witnesses, the taking of depositions, the serving of requests for admissions, and the use of discovery processes, shall not constitute a waiver of such special appearance.

So participating in discovery while the special appearance is pending is safe by the terms of the rule.

It gets decided first

Any motion to challenge the jurisdiction provided for herein shall be heard and determined before a motion to transfer venue or any other plea or pleading may be heard.

Filing order and hearing order are both fixed. The special appearance is resolved before venue and before anything else.

The hearing

Rule 120a sets out what the court considers and how the evidence comes in:

The court shall determine the special appearance on the basis of the pleadings, any stipulations made by and between the parties, such affidavits and attachments as may be filed by the parties, the results of discovery processes, and any oral testimony.

Affidavits, if any, "shall be served at least seven days before the hearing, shall be made on personal knowledge, shall set forth specific facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify."

If a party opposing the motion shows by affidavit that it cannot, for reasons stated, present facts essential to justify its opposition, "the court may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just."

And a sanctions provision: should it appear to the court's satisfaction at any time that any such affidavits are presented in violation of Rule 13, "the court shall impose sanctions in accordance with that rule."

Findings on jurisdiction don't decide the merits

No determination of any issue of fact in connection with the objection to jurisdiction is a determination of the merits of the case or any aspect thereof.

Contested facts resolved at the special-appearance stage stay there.

After the ruling

If the court sustains the objection, an appropriate order is entered.

If the objection is overruled, "the objecting party may thereafter appear generally for any purpose." And the rule preserves the point for review: "Any such special appearance or such general appearance shall not be deemed a waiver of the objection to jurisdiction when the objecting party or subject matter is not amenable to process issued by the courts of this State."

So losing the special appearance and then defending the case on the merits does not forfeit the jurisdictional complaint.

Where venue sits in the sequence

Rule 86 gives venue its own short fuse: an objection to improper venue "is waived if not made by written motion filed prior to or concurrently with any other plea, pleading or motion except a special appearance motion provided for in Rule 120a."

The carve-out is what allows the correct order to work. The sequence Texas requires is:

1. special appearance — sworn, first;
2. motion to transfer venue — before or with any other plea, pleading or motion;
3. everything else.

All three can travel in a single instrument, provided the instrument gets the internal order right and the special appearance is sworn.

Rule 87 supplies the procedure for determining a venue motion, including the notice period and the affidavits.

If the citation or service was defective instead

A challenge to how you were served is a different objection from whether Texas can reach you at all. Rule 122 covers the first: if the citation or its service is quashed on the defendant's motion, the defendant "shall be deemed to have entered his appearance at ten o'clock a.m. on the Monday next after the expiration of twenty (20) days after the day on which the citation or service is quashed."

Quashing service restarts the answer clock. It does not defeat jurisdiction.

Rule 124 sets the floor underneath both: no judgment may be rendered against a defendant except on service, acceptance or waiver of process, or an appearance, unless a law or rule expressly provides otherwise.

Two rules do the work of proving or disproving that a defect exists. Rule 103 says who may serve process, and Rule 107 governs the return of service — what it must show and when it must be on file. The return is the record of what happened, so it is the first document to pull.

This matters most where a default judgment has already been entered, because Texas requires strict compliance with the service rules before a default can stand, and the record itself has to show it. A return that does not is the opening.

If a default judgment has been entered, compute the Rule 329b dates before choosing what to file: 30 days from signing to move for new trial, overruled by operation of law at 75 days if the court does not rule, and the trial court's plenary power ending at 105 days in that scenario. After that the route is a bill of review. See the Texas motion for new trial and setting aside a Texas default judgment.

The order of operations

1. File nothing else first. Not an extension request, not an agreed order.
2. Swear the motion. An unsworn special appearance is defective — though it may be amended if it was filed first.
3. Combine if you want to, in one instrument, with venue second and the answer after that.
4. Use discovery freely — Rule 120a says it doesn't waive.
5. Serve affidavits at least seven days before the hearing.
6. Expect it to be heard first, before venue and before any other plea.

Where these rules live

• Rule 13 — Effect of Signing Pleadings, Motions and Other Papers
• Rule 86 — Motion to Transfer Venue
• Rule 87 — Determination of Motion to Transfer
• Rule 99 — Issuance and Form of Citation
• Rule 103 — Who May Serve
• Rule 107 — Return of Service
• Rule 120a — Special Appearance
• Rule 121 — Answer Constitutes Appearance
• Rule 122 — Constructive Appearance
• Rule 124 — No Judgment Without Service
• Rule 329b — Time for Filing Motions

For forms and step-by-step help, the Texas courts point to TexasLawHelp.org. This page explains what the rules say. It isn't legal advice, and whether a defendant is amenable to process in Texas is a constitutional question decided under case law this site doesn't cover.