§ 11.053.Hearing

The hearing provision, and its evidentiary rule is deliberately permissive.

On receipt of a motion, the court shall, after notice to all parties, conduct a hearing to determine whether to grant the motion.

The hearing is mandatory. A court may not grant or deny the motion on the papers, and notice goes to all parties rather than only the plaintiff and the moving defendant.

That matters in multi-party litigation. A finding and a security order affect the shape of the whole case, and co-defendants who did not move have an interest in the outcome.

The court may consider any evidence material to the ground of the motion, including written or oral evidence and evidence presented by witnesses or by affidavit.

Allowing affidavits is the practically important permission. The criteria turn on a seven-year litigation history across state and federal courts, which is proved by records and docket sheets rather than by testimony.

Requiring live witnesses would make the motion impractical, since a defendant would have to bring in custodians from every court involved.

"Material to the ground of the motion" is the limit on all this. The evidence must go to the criteria and to whether there is a reasonable probability the plaintiff will prevail — not to the plaintiff’s character or to disputes outside the litigation history.

The hearing is also the plaintiff’s opportunity, and it is the main one the chapter provides. A prefiling order follows the notice and hearing this subchapter requires, and a permission decision later can be reviewed only by mandamus.