The Texas Supreme Court has adopted the new Texas Rule of Civil Procedure 91a, which will go into effect on March 1, 2013, to provide for the "dismissal of causes of action that have no basis in law or fact." The new rule may be changed in response to public comments received by February 1, 2013.
Assuming Rule 91a is implemented as adopted, it will permit the dismissal of a cause of action that has:
- No basis in law—i.e., that the allegations, if taken as true, do not entitle the claimant to the relief sought; or
- No basis in fact—i.e., if no reasonable person could believe the facts pleaded.
A Rule 91a motion to dismiss must be filed within 60 days after the first pleading containing the challenged claim and at least 21 days before being heard. Notice of a hearing must be provided at least 14 days in advance, and any response must be filed at least 7 days before the hearing. The motion must be granted or denied within 45 days of being filed. Like a federal Rule 12(b)(6) motion, the court may not consider evidence.
Practitioners should take care when considering whether to file a Rule 91a motion, as an award of attorney fees and costs to the prevailing party is mandatory.
The complete text of the new Rule 91a is available here.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
