To contest a Texas lawsuit when you don’t belong in a Texas court, file a special appearance under Texas Rule of Civil Procedure 120a — a sworn motion, filed before any other pleading, that challenges the court’s personal jurisdiction over you without submitting to it. The rule is unforgiving about order and form. File anything else first, or file the motion unsworn, and you’ve made a general appearance and lost the objection for good.
File It First, and File It Sworn
Rule 120a requires the motion to be a “sworn motion filed prior to … any other plea, pleading, or motion.”1South Texas College of Law. Texas Rule of Civil Procedure 120a – Special Appearance Two conditions, both strict.
First in time. The special appearance must be the first thing you file in the case. You can combine it in the same document with an answer or a venue challenge, but the special appearance has to come first in the document and be clearly identified as the primary filing. An answer filed ahead of the special appearance ends the inquiry.
Sworn. The motion must be signed under oath or verified. An unsworn motion doesn’t comply with Rule 120a and can be treated as though it was never filed.
Once the motion is on file, the judge has to rule on it before hearing anything else. Rule 120a also protects you during that ruling: no factual finding made in resolving the jurisdictional challenge counts as a ruling on the merits of the underlying claim.1South Texas College of Law. Texas Rule of Civil Procedure 120a – Special Appearance You can put facts and testimony in front of the court about your Texas contacts without those facts binding you on liability.
What Waives the Objection
Rule 120a is blunt: “Every appearance, prior to judgment, not in compliance with this rule is a general appearance.”1South Texas College of Law. Texas Rule of Civil Procedure 120a – Special Appearance A general appearance is permanent acceptance of the court’s power over you. There is no second chance.
The most common mistake is filing an answer before filing the special appearance. Once the answer is on the docket first, the jurisdictional objection is gone. But answers aren’t the only trap. Texas courts have held that a party makes a general appearance when it invokes the court’s judgment on any question other than jurisdiction, treats the case as properly pending, or asks the court for affirmative relief. A counterclaim, for example, asks the court to do something for you — that alone is enough.
Discovery That Doesn’t Waive
Rule 120a carves out the discovery you’ll usually need to build your factual record. Issuing subpoenas, taking depositions, serving requests for admissions, and other discovery tools do not waive a special appearance.1South Texas College of Law. Texas Rule of Civil Procedure 120a – Special Appearance You can gather evidence about your Texas contacts (or lack of them) without forfeiting the objection.
What Goes in the Motion and Affidavit
A special appearance is only as strong as the evidence attached to it. The motion should lay out the factual argument: where you live or where your business operates, where the events in the lawsuit occurred, and why your Texas contacts don’t support jurisdiction.
The affidavit is where the case is won or lost. Rule 120a requires affidavits to be made on personal knowledge, to set out specific facts admissible in evidence, and to show the affiant is competent to testify.2South Texas College of Law. Texas Rule of Civil Procedure 120a – Special Appearance Generalities won’t hold up. A line like “I have no contacts with Texas” is a conclusion, not a fact. Instead, spell out where you were during the relevant period, where your business is conducted, and the specific absence of Texas offices, employees, property, or customers.
The affidavit must be served on the opposing party at least seven days before the hearing.2South Texas College of Law. Texas Rule of Civil Procedure 120a – Special Appearance If the party opposing the motion can’t marshal the facts it needs from affidavits alone, the court can grant a continuance to allow further depositions or discovery.
What Your Affidavit Actually Has to Negate
Knowing who has to prove what tells you what your affidavit needs to cover.
The plaintiff first has to plead enough facts to bring you within the Texas long-arm statute. That statute treats a non-resident as “doing business” in Texas if they contract with a Texas resident for performance in Texas, commit a tort in whole or part in Texas, or recruit Texas residents for employment — plus a catch-all covering “other acts that may constitute doing business.”3State of Texas. Texas Civil Practice and Remedies Code 17.042
Once the plaintiff has pleaded a basis for jurisdiction, the defendant must negate every basis alleged. This is the demanding part. If the petition alleges three grounds, you have to knock down all three. Leave one standing and the special appearance fails.4Justia Law. Kelly v General Interior Construction Inc Read the petition carefully and make sure your affidavit answers each alleged connection with specific facts.
After you’ve come forward with evidence, the burden shifts back to the plaintiff to prove that your contacts with Texas actually support jurisdiction. The plaintiff can file counter-affidavits, introduce documents, or call witnesses.
The Two Kinds of Jurisdiction You’re Negating
Your affidavit should be built around the two ways a Texas court can claim authority over you.
General jurisdiction lets a court hear any claim against you, even one unrelated to Texas. It’s a high bar. An individual is subject to general jurisdiction where they are domiciled; a corporation only where it is incorporated or has its principal place of business — the places where a defendant is “essentially at home.”5Constitution Annotated. Minimum Contact Requirements for Personal Jurisdiction If you don’t live in Texas and your company isn’t incorporated or headquartered there, general jurisdiction usually isn’t in play.
Specific jurisdiction is the more common fight. It applies when the lawsuit arises from or relates to your own contacts with Texas, and it turns on whether you purposefully directed activity at the state. A company that markets and sells into Texas has purposefully availed itself of the market. A company whose product reached Texas only because someone else resold it likely hasn’t. Texas courts apply a “stream of commerce plus” test: expecting a product might end up in Texas isn’t enough; the defendant must have targeted the state through additional conduct such as advertising, distribution channels, or sending representatives.
The Hearing
After filing, you’ll need to request a hearing date. The judge decides the special appearance on the pleadings, any stipulations, affidavits, discovery results, and oral testimony.2South Texas College of Law. Texas Rule of Civil Procedure 120a – Special Appearance Live testimony is permitted but not required. Many motions are decided on the papers alone when the jurisdictional facts are straightforward.
The judge’s analysis moves in a predictable order. Do the plaintiff’s allegations fit the long-arm statute? Do the defendant’s contacts satisfy constitutional minimum contacts? If specific jurisdiction is claimed, does the lawsuit arise from or relate to those contacts? And would exercising jurisdiction offend traditional notions of fair play and substantial justice?
After the Ruling
If the judge grants the special appearance, the case is dismissed for lack of personal jurisdiction. The plaintiff may still be able to refile in a court that does have jurisdiction, whether in another state or in federal court. A win here doesn’t end the underlying claim; it just forces the plaintiff to pursue it somewhere the defendant can properly be sued.
If the judge denies the motion, Rule 120a lets you appear generally and defend the case on the merits without waiving the jurisdictional objection.1South Texas College of Law. Texas Rule of Civil Procedure 120a – Special Appearance Participating in the litigation after losing the motion doesn’t cost you the right to challenge jurisdiction later.
Interlocutory Appeal
Unlike most pretrial rulings, a denial of a special appearance can be appealed right away. Texas Civil Practice and Remedies Code Section 51.014(a)(7) authorizes an interlocutory appeal from any order granting or denying a special appearance under Rule 120a.6State of Texas. Texas Civil Practice and Remedies Code 51.014 Suits under the Family Code are excluded from this immediate appeal right.
The deadlines for interlocutory appeal are short, so if the motion is denied, get advice on the appeal promptly. The whole point of a special appearance is to avoid litigating in Texas at all, and waiting for a final judgment to raise the issue defeats that purpose.