Frivolous Lawsuits Stand Less of a Chance in Texas

Chris Hanslik

February 13, 2013

The Texas Supreme Court recently proposed a new rule, which calls for the dismissal of cases that have no basis in law or fact. Rule 91a of the Texas Rules of Civil Procedure, “Dismissal of Baseless Causes of Action,” is effective March 1, 2013 and implements the legislative policy initiative embodied in Texas House Bill 274, which amended Government Code § 22.004(g) to call for rules “for the dismissal of causes of action that have no basis in law or fact on motion and without evidence … [to be] granted or denied within 45 days of the filing of the motion to dismiss.”

Rule 91a requires the following steps to dismiss a baseless cause of action. First, a party must file a motion that (1) states it is made pursuant to Rule 91a, (2) identifies each cause of action sought to be dismissed, and (3) states specifically the reasons the cause of action has no basis in law, no basis in fact, or both. Rule 91a.1 defines a cause of action as having 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.” The rule defines a cause of action as having no basis in fact “if no reasonable person could believe the facts pleaded.” Unlike a motion for summary judgment under Rule 166a, the parties cannot supply evidence for the court’s consideration as the court must decide the motion based solely on the pleading of the cause of action, together with proper pleading exhibits. This gives the court significant discretion to determine the reasonableness of the pleadings.

The movant must file the motion within 60 days after being served with the pleading containing the challenged cause of action. Next, the movant must set a hearing on the motion at least 21 days but not more than 45 days after filing the motion. Like Rule 166a governing motions for summary judgments, Rule 91a requires that the motion be filed at least 21 days before it is heard and that any response to the motion be filed no later than 7 days before the hearing. Nevertheless, the court must rule on the motion to dismiss within 45 days unless the motion, pleading, or cause of action is withdrawn, amended, or dismissed as specified in Rule 91a.5. An amended motion filed in accordance with the new rule restarts the 45 day ruling period.

Clearly, Rule 91a is designed to streamline the dismissal of cases that should never have been brought to court. Conceivably, if there are no withdrawals, amendments, or dismissals pursuant to Rule 91a.5, the whole process to dismiss a baseless case could take as short as 21 days but not more than 105 days, depending on when the motion is filed and the hearing set.

The new proposed rule is also designed to make litigators more thoughtful about their pleadings. For one, the content of pleadings and attached exhibits, if any, become significantly more important because litigators will now need to consider further whether causes of action have sufficient basis in law or fact. In addition, Rule 91a provides for an award of costs and attorneys’ fees to the “prevailing party” and allows the court to consider evidence regarding costs and fees in determining the award, including fees for preparing or responding to the motion to dismiss. Therefore, improper or insufficient pleadings could be costly for the party who does not prevail.