Motion to Dismiss (Rule 91a) / Special Appearance - Texas

IN THE [____] COURT OF [________________________________] COUNTY, TEXAS

Cause No.: [____________________]

[DEFENDANT'S] MOTION TO DISMISS PURSUANT TO TEXAS RULE OF CIVIL PROCEDURE 91a
(AND/OR SPECIAL APPEARANCE PURSUANT TO TEXAS RULE OF CIVIL PROCEDURE 120a)

PRELIMINARY NOTE: TEXAS'S UNIQUE DISMISSAL FRAMEWORK

IMPORTANT — READ BEFORE USING THIS TEMPLATE:
Texas does NOT use the federal Rule 12(b)(6) standard. Texas has its own distinct dismissal framework:

1. Rule 91a (Primary Dismissal Tool): Allows dismissal of claims that have "no basis in law or fact." Filed within 60 days of service of the first challenged pleading. The court must rule within 45 days of filing. Attorney's fees are available to the prevailing party in the court's discretion (not automatic). Rule 91a does not apply to claims brought under the Family Code or governed by Chapter 14 of the Texas Civil Practice and Remedies Code (in forma pauperis inmate litigation). Tex. R. Civ. P. 91a.1.

2. Rule 120a (Special Appearance): Used EXCLUSIVELY to challenge personal jurisdiction. Must be filed before any other pleading or motion, or jurisdiction is waived.

3. TCPRC § 27 (TCPA / Anti-SLAPP): Available when the legal action is based on or is in response to a protected exercise or falls within § 27.010(b)'s specified conduct. Ordinarily file within 60 days of service; the parties may agree to extend that period or the court may extend it for good cause. The court must rule within 30 days after the hearing concludes. When the court orders dismissal, § 27.009(a) generally requires court costs and reasonable attorney's fees; sanctions are discretionary, and compulsory counterclaims have a separate exception.

This template covers Rule 91a and Rule 120a. For TCPA motions, use a separate TCPA-specific template.

PART ONE: RULE 120a SPECIAL APPEARANCE

(Complete this section ONLY if challenging personal jurisdiction. If filed, this must be presented FIRST, before any other pleading or motion.)

DEFENDANT'S SPECIAL APPEARANCE PURSUANT TO RULE 120a

TO THE HONORABLE JUDGE OF SAID COURT:

Defendant [________________________________] ("Defendant"), without submitting to the jurisdiction of this Court, makes this Special Appearance pursuant to Texas Rule of Civil Procedure 120a to challenge the personal jurisdiction of this Court over Defendant, and respectfully shows:

I. DEFENDANT IS NOT SUBJECT TO PERSONAL JURISDICTION IN TEXAS

A. Defendant's Identity and Domicile

1. Defendant [________________________________] is a [☐ natural person / ☐ corporation / ☐ limited liability company / ☐ other: ____________________] organized and existing under the laws of [________________________________], with its principal place of business / domicile in [________________________________].

2. Defendant is not a Texas resident, is not domiciled in Texas, and has not consented to jurisdiction in Texas.

B. No Basis for General Jurisdiction

3. Defendant does not have continuous and systematic contacts with Texas sufficient to render it essentially at home in Texas under the standard articulated in Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915 (2011), and Daimler AG v. Bauman, 571 U.S. 117 (2014).

4. Specifically:

   • Defendant ☐ does not / ☐ did not maintain offices, agents, or employees in Texas;
   • Defendant ☐ does not / ☐ did not own or lease property in Texas;
   • Defendant ☐ does not / ☐ did not regularly transact business in Texas;
   • Defendant ☐ is not / ☐ was not registered to do business in Texas.

C. No Basis for Specific Jurisdiction

5. Defendant lacks minimum contacts with Texas sufficient to support specific jurisdiction because:

☐ The claims in this lawsuit do not arise out of or relate to any conduct by Defendant in Texas.

☐ Defendant did not purposefully avail itself of the privilege of conducting activities in Texas such that it could reasonably anticipate being hauled into a Texas court.

☐ The exercise of jurisdiction would offend traditional notions of fair play and substantial justice.

☐ [Additional grounds: ________________________________]

D. Verification

6. Texas Rule of Civil Procedure 120a(1) requires a sworn motion. The signer uses the following unsworn declaration under Tex. Civ. Prac. & Rem. Code § 132.001 in place of a sworn verification. State only facts within the declarant's personal knowledge, or use a sworn affidavit where appropriate.

My name is [FIRST MIDDLE LAST], my date of birth is [DATE OF BIRTH], and my address is [STREET], [CITY], [STATE], [ZIP CODE], [COUNTRY]. I declare under penalty of perjury that the foregoing is true and correct.

Executed in [COUNTY] County, State of [STATE], on [DAY] day of [MONTH], [YEAR].

Declarant signature: [SIGNATURE] Title/Relationship: [________________________________]

PART TWO: RULE 91a MOTION TO DISMISS

DEFENDANT'S MOTION TO DISMISS PURSUANT TO TEXAS RULE OF CIVIL PROCEDURE 91a

TO THE HONORABLE JUDGE OF SAID COURT:

Defendant [________________________________] ("Defendant"), pursuant to Texas Rule of Civil Procedure 91a, moves this Court to dismiss the following cause(s) of action asserted by Plaintiff [________________________________] ("Plaintiff") because each challenged claim has no basis in law, no basis in fact, or both. In support, Defendant shows the Court the following:

I. INTRODUCTION

This motion is brought pursuant to Texas Rule of Civil Procedure 91a, which provides that "a party may move to dismiss a cause of action on the grounds that it has no basis in law or fact." Tex. R. Civ. P. 91a.1. As detailed below, the claims challenged herein fail as a matter of law or cannot be believed by any reasonable person on the facts as pleaded.

The following cause(s) of action are challenged:

II. RULE 91a STANDARDS AND REQUIREMENTS

A. The Legal Standard Under Rule 91a

Texas Rule of Civil Procedure 91a.1 provides:

"A party may move to dismiss a cause of action on the grounds that it has no basis in law or fact. A cause of action has no basis in law if the allegations, taken as true, together with inferences reasonably drawn from them, do not entitle the claimant to the relief sought. A cause of action has no basis in fact if no reasonable person could believe the facts pleaded."

Rule 91a expressly requires the court to decide the motion "based solely on the pleading of the cause of action, together with any pleading exhibits permitted by Rule 59." Tex. R. Civ. P. 91a.6. The court may not consider evidence outside the pleadings.

B. Critical Procedural Requirements Under Rule 91a

Filing Deadline: This motion must be filed within 60 days after the first pleading containing the challenged cause of action is served on the movant. Tex. R. Civ. P. 91a.3(a). This motion is timely because Plaintiff's petition was served on [__/__/____] and this motion is filed on [__/__/____], which is [____] days after service.

Notice of Hearing: This motion must be filed at least 21 days before the date it is heard — i.e., the hearing (or submission) date must be set no earlier than 21 days after the motion is filed. Tex. R. Civ. P. 91a.3(b). The hearing is set for [__/__/____].

Service on Opposing Party: Each party is entitled to at least 14 days' notice of the hearing on the motion to dismiss. Tex. R. Civ. P. 91a.6.

Court's Ruling Deadline: The court must rule on the motion by the 45th day after the motion is filed. Tex. R. Civ. P. 91a.3(c). The 45th day falls on [__/__/____].

Response Deadline: Under Rule 91a.4, a response must be filed no later than 7 days before the hearing date. No evidence may be considered.

Attorney's Fees: Under Rule 91a.7, the court may award to the prevailing party costs and reasonable and necessary attorney's fees incurred with respect to the challenged cause of action in the trial court.

III. IDENTIFICATION OF CHALLENGED PLEADING

1. Plaintiff filed its [☐ Original Petition / ☐ Amended Petition / ☐ other: ____________________] on [__/__/____] (the "Petition").

2. The Petition was served on Defendant on [__/__/____].

3. The challenged cause(s) of action appear at [paragraph/page ____________________] of the Petition.

IV. ARGUMENT: EACH CHALLENGED CAUSE OF ACTION HAS NO BASIS IN LAW OR FACT

A. [CAUSE OF ACTION 1: ________________________________] Has No Basis in Law

1. The Allegations

Plaintiff alleges [summarize the factual allegations supporting this claim: ________________________________].

2. Argument — No Basis in Law

Taking Plaintiff's allegations as true and drawing all reasonable inferences in Plaintiff's favor, this claim has no basis in law because:

☐ The elements of [________________________________] require [________________________________], which is legally impossible under the facts as pleaded because [________________________________].

☐ Texas law does not recognize this cause of action under the circumstances pleaded. Specifically, [________________________________].

☐ The applicable statute of limitations bars this claim. The limitations period for [________________________________] is [____] years under [Texas Civil Practice and Remedies Code § ____________________]. The claim accrued on [__/__/____], more than [____] years before the filing of this suit on [__/__/____].

☐ Plaintiff lacks standing to assert this claim because [________________________________].

☐ Defendant is immune from this claim under [________________________________] because [________________________________].

☐ [Other legal basis: ________________________________].

Authority: [________________________________]; [________________________________].

B. [CAUSE OF ACTION 2: ________________________________] Has No Basis in Fact

1. The Allegations

Plaintiff alleges [summarize the factual allegations: ________________________________].

2. Argument — No Basis in Fact

No reasonable person could believe the facts as pleaded because:

☐ The pleaded facts are internally contradictory. Specifically, Plaintiff simultaneously alleges [________________________________] and [________________________________], which are mutually exclusive.

☐ The pleaded facts are directly contradicted by [a document / agreement / record] that Plaintiff attached to or incorporated into the Petition, which shows [________________________________].

☐ The pleaded facts are so implausible that no reasonable person could believe them. Specifically, [________________________________].

☐ [Other factual basis: ________________________________].

C. [CAUSE OF ACTION 3: ________________________________] Has No Basis in Law or Fact

[Repeat the structure from Sections A and B above as needed for additional claims.]

[________________________________]

D. [CAUSE OF ACTION 4: ________________________________] Has No Basis in Law or Fact

[________________________________]

V. ADDITIONAL GROUNDS FOR DISMISSAL

(Check all that apply and complete the relevant section below.)

☐ Lack of Subject-Matter Jurisdiction — This Court lacks jurisdiction over this dispute because [________________________________]. See Tex. R. Civ. P. 85; [applicable authority].

☐ Improper Venue — Venue is improper in [________________________________] County because [________________________________]. See Tex. Civ. Prac. & Rem. Code §§ 15.001–15.020.

☐ Insufficiency of Process / Service of Process — Service was defective because [________________________________]. See Tex. R. Civ. P. 99, 103, 106, 107.

☐ Failure to Join Necessary Party — Plaintiff has failed to join [________________________________], a necessary party under Tex. R. Civ. P. 39, because [________________________________].

☐ Special Exceptions (Pleading Defect) — Even if the claim survives Rule 91a, Defendant specially excepts to the Petition under Tex. R. Civ. P. 90 and 91 because [________________________________].

VI. REQUEST FOR ATTORNEY'S FEES AND COSTS

Pursuant to Texas Rule of Civil Procedure 91a.7, Defendant requests that the Court, in its discretion, award Defendant all costs and reasonable and necessary attorney's fees incurred with respect to the challenged cause(s) of action in this Court. Defendant will present evidence of such fees and costs at or before the hearing. (Note: Rule 91a.7's fee award is discretionary, not mandatory, and does not apply in an action by or against a governmental entity or a public official acting in an official capacity or under color of law.)

Defendant's counsel has incurred approximately [____] hours of work at a rate of $[____] per hour, for a total of approximately $[____________________] in fees and costs to date.

VII. CONCLUSION AND PRAYER

For the foregoing reasons, Defendant respectfully requests that the Court:

1. GRANT this Motion to Dismiss as to all challenged cause(s) of action listed herein;

2. DISMISS with prejudice each challenged cause of action, or in the alternative, DISMISS without prejudice with leave to replead within [____] days;

3. AWARD Defendant its reasonable and necessary attorney's fees and costs pursuant to Tex. R. Civ. P. 91a.7;

4. If the Court grants this motion only as to some causes of action, proceed with the remaining claims; and

5. Grant Defendant such other and further relief to which Defendant may be justly entitled.

Respectfully submitted,

[LAW FIRM NAME]

By: [________________________________]
[Attorney Name]
State Bar No. [____________________]
[Street Address]
[City, State, ZIP]
Telephone: ([____]) [____]-[________]
Fax: ([____]) [____]-[________]
Email: [________________________________]

ATTORNEY FOR DEFENDANT [________________________________]

CERTIFICATE OF SERVICE

I certify that a true and correct copy of the foregoing Defendant's Motion to Dismiss Pursuant to Texas Rule of Civil Procedure 91a has been served on all counsel of record and/or pro se parties in accordance with the Texas Rules of Civil Procedure and, where applicable, via the eFileTexas electronic filing and service system on [__/__/____], as follows:

[________________________________]
[Attorney Name]

APPENDIX A: RULE 91a QUICK-REFERENCE CHECKLIST

Use this checklist to ensure compliance before filing:

☐ Motion identifies each challenged cause of action by name and location in Petition
☐ Motion states it is brought under Rule 91a
☐ Motion filed within 60 days of service of pleading containing challenged claim
☐ Hearing date set no earlier than 21 days after the filing date
☐ Opposing party served with notice of hearing at least 14 days before hearing
☐ Motion limited to the four corners of the pleading — no evidence submitted
☐ Motion filed via eFileTexas (mandatory statewide for represented parties)
☐ Attorney's fees evidence prepared for hearing

APPENDIX B: RULE 120a SPECIAL APPEARANCE CHECKLIST

☐ Special Appearance filed BEFORE any other pleading or motion (including Rule 91a motion, if applicable)
☐ Supporting declaration/affidavit attached under Rule 120a(3)
☐ No other actions taken in the case that could constitute a general appearance
☐ Motion limited to the jurisdictional issue — no merits arguments included
☐ Filed via eFileTexas

APPENDIX C: TEXAS TCPA (ANTI-SLAPP) OVERVIEW

(For claims arising from exercise of free speech, right to petition, or right of association.)

Tex. Civ. Prac. & Rem. Code § 27.003: A party may file a motion to dismiss a legal action that is based on or is in response to the party's exercise of free speech, the right to petition, or the right of association, or arises from conduct described in § 27.010(b), subject to the chapter's exceptions.

Filing Deadline: Within 60 days of service of the legal action, or as extended by the court for good cause. § 27.003(b).

Burden Shifting:

• Movant must demonstrate that the legal action is covered by the TCPA. § 27.005(b).
• If established, the burden shifts to the responding party to establish by clear and specific evidence a prima facie case for each essential element of the claim. § 27.005(c).

Hearing: The court must set a hearing no later than 60 days after the motion is served (extendable to 90 or 120 days in specified circumstances, e.g., docket conditions, good cause, or agreed/permitted discovery). § 27.004(a)-(c).

Court's Ruling: The court must rule within 30 days after the hearing. § 27.005(a).

Fees and Sanctions: If the court orders dismissal, § 27.009(a) generally requires an award of court costs and reasonable attorney's fees incurred in defense. The court may award sanctions sufficient to deter similar actions. A dismissed compulsory counterclaim is subject to the separate rule in § 27.009(c).

Note: The TCPA has significant overlap with Rule 91a but operates differently. Consult with qualified Texas counsel to determine which mechanism best fits the facts.

SOURCES AND REFERENCES

• Texas Rule of Civil Procedure 91a: https://www.txcourts.gov/rules-forms/rules-standards/
• Texas Citizens Participation Act (TCPA), Tex. Civ. Prac. & Rem. Code Ch. 27: https://statutes.capitol.texas.gov/Docs/CP/htm/CP.27.htm
• eFileTexas Mandatory E-Filing: https://efiletexas.gov/
• Texas Rules of Civil Procedure (full text): https://www.txcourts.gov/media/1455012/trcp.pdf
• TRCP 91a Overview — Silb Law Firm: https://silblawfirm.com/litigation/trcp-91a-motions-to-dismiss-in-texas/
• McGuireWoods Analysis of Rule 91a: https://www.mcguirewoods.com/client-resources/alerts/2015/4/texas-rule-civil-procedure-91a/