Texas Rule of Civil Procedure 91a lets a party ask the court to dismiss a cause of action early, before discovery, on the ground that the claim has no basis in law or no basis in fact. The rule took effect March 1, 2013, after the Legislature directed the Texas Supreme Court to adopt it through Texas Government Code Section 22.004(g).1State of Texas. Texas Government Code 22.004 The point is to knock out baseless claims quickly, on the pleading alone, without the time and expense of a full lawsuit.
What “No Basis in Law or Fact” Means
Rule 91a reaches two kinds of defective claims. A cause of action has no basis in law when the allegations, taken as true, still would not entitle the plaintiff to the relief requested. Even the best version of the plaintiff’s story does not add up to a legal claim.2Texas Courts. Texas Rules of Civil Procedure
A cause of action has no basis in fact when no reasonable person could believe the facts as pleaded. This is not the same as saying the facts look weak or hard to prove. The question is whether the allegations are so implausible that no reasonable person could accept them, measured only against what the plaintiff wrote in the pleading.
The Deadlines That Control the Motion
The timing rules are strict on both sides. The motion to dismiss must be filed within 60 days after the movant is served with the first pleading containing the challenged cause of action, and at least 21 days before the hearing. Each party gets at least 14 days’ notice of the hearing. Any response has to be filed no later than 7 days before the hearing.2Texas Courts. Texas Rules of Civil Procedure
The court has 45 days after the motion is filed to grant or deny it. A missed deadline does not automatically mean denial. Unlike the Texas Citizens Participation Act, Rule 91a does not convert a late ruling into a denial by operation of law. The motion simply sits, and the movant’s remedy is a petition for writ of mandamus asking a higher court to compel a ruling.
How the Court Decides
Rule 91a is a pleadings-only procedure. The court decides the motion based solely on the pleading that contains the challenged cause of action, together with any exhibits attached to it under Rule 59.2Texas Courts. Texas Rules of Civil Procedure No evidentiary hearing. No affidavits. No depositions. No documents from outside the four corners of the pleading. An oral hearing is permitted but not required.
That is what separates Rule 91a from a traditional summary judgment motion. Summary judgment turns on evidence; Rule 91a asks a narrower question about what the plaintiff actually pleaded.
What the Plaintiff Can Do Before a Ruling
A plaintiff hit with a Rule 91a motion is not stuck waiting for the court to rule. If the plaintiff files a nonsuit of the challenged cause of action at least 3 days before the hearing, the court cannot rule on the motion. The same 3-day window lets the movant withdraw the motion.3Texas Rules Project. Rule 91a.5 Effect of Nonsuit or Amendment; Withdrawal of Motion (2013)
The plaintiff can also amend the challenged cause of action at least 3 days before the hearing. If that happens, the movant can withdraw the original motion or file an amended motion targeting the revised pleading. An amended motion restarts all the time periods.3Texas Rules Project. Rule 91a.5 Effect of Nonsuit or Amendment; Withdrawal of Motion (2013) A plaintiff who spots a problem can fix it or walk away before the court weighs in.
Attorney’s Fees and Costs
Under the current rule, the court may award the prevailing party all costs and reasonable attorney’s fees related to the challenged cause of action. The award is discretionary, not mandatory, for cases filed on or after September 1, 2019.4Texas Courts. Texas Rules of Civil Procedure
Two limits apply. Fees are capped at those connected to the challenged cause of action, including the work spent preparing or responding to the motion itself. A party cannot use a 91a win to recover fees spent on unrelated parts of the case.5Texas Rules Project. Rule 91a.3 Time for Motion and Ruling (2013) The fee-shifting provision also does not apply in lawsuits by or against a governmental entity, or against a public official acting in an official capacity.4Texas Courts. Texas Rules of Civil Procedure
Fees are the one piece of a Rule 91a proceeding that is decided on evidence. The court can look at billing records, fee affidavits, and other documentation to set a reasonable amount.
Cases Where Rule 91a Does Not Apply
Two categories of civil cases are outside the rule. Cases brought under the Texas Family Code are excluded by the legislative mandate in Government Code Section 22.004(g).1State of Texas. Texas Government Code 22.004 The rule also does not apply to cases governed by Chapter 14 of the Texas Civil Practice and Remedies Code, which covers lawsuits filed by inmates who have declared an inability to pay court costs.6Justia Law. Texas Civil Practice and Remedies Code Title 2, Subtitle A, Chapter 14 Chapter 14 has its own screening procedures for inmate litigation.
Appealing a Rule 91a Ruling
Texas appellate courts review Rule 91a rulings de novo. The appeals court looks at the pleadings fresh and owes no special deference to the trial judge’s reading. The Texas Supreme Court set this standard in City of Dallas v. Sanchez, treating the viability of a pleaded claim as a question of law and the factual-plausibility test as the equivalent of a legal-sufficiency review.
When the trial court grants a 91a motion, the dismissed party can appeal. A denial is a harder posture. It is generally not a final, appealable order on its own, and the movant may have to wait until after a final judgment before raising the issue on appeal.