§ 105.003.Motion of Frivolous Claim

The procedural condition, and skipping it forfeits the remedy.

To recover, the party must file a written motion alleging that the agency’s claim is frivolous. The motion may be filed at any time after the filing of the pleadings in which the agency’s cause of action is alleged.

The motion is a precondition, not an option. A party who defeats a frivolous agency claim without having filed one recovers nothing under the chapter.

The timing is generous at one end and unstated at the other. It may be filed any time after the agency pleads its claim, and no deadline is given — but the purpose of the requirement argues for filing early.

The motion must set forth the facts that justify the party’s claim.

That is a substantive requirement. A bare assertion that the agency’s case is frivolous will not do; the motion must explain why.

The motion must state that if the action is dismissed or judgment is awarded to the party, the party intends to submit a motion to recover fees, expenses, and reasonable attorney’s fees.

The declaration of intent is the point of the whole section. It puts the agency on notice, while the case is still running, that continuing may cost it money.

That is what gives the chapter its practical effect. An agency told at the outset that a frivolousness motion is on file and fees will be sought has a reason to reconsider before the costs accumulate.

So the sequence is two motions. This one during the case, and a second afterwards to recover — and the first is what makes the second available.