Motion to Dismiss in Texas

What Is a Motion to Dismiss?

Background

Although Fed.R.Civ.P. 12(b)(6) provides for a motion to dismiss for failure to state a claim upon which relief can be granted, the Texas Rules of Civil Procedure do not contain any analogous provision. Under the Texas Rules of Civil Procedure, the proper way for a defendant to urge that a plaintiff has failed to plead a cause of action is by special exception. (Massey v. Armco Steel Co.(1983) 652 S.W.2d 932, 934; Texas Dep't of Correction v. Herring (1974) 513 S.W.2d 6, 10; McFarland v. Reynolds (1974) 513 S.W.2d 620, 626.) Although special exceptions are generally considered to be the means by which an adverse party may force clarification of vague pleadings, they may also question the sufficiency in law of a plaintiff's petition. (McFarland, 513 S.W.2d at 626.)

When special exceptions are sustained by a trial court, the pleader must be given, as a matter of right, an opportunity to re-plead. (Moseley v. Hernandez (1990) 797 S.W.2d 240, 242.). Only after special exceptions have been sustained and a party has been given an opportunity to amend its pleadings may a case be dismissed for failure to state a cause of action. (Massey, 652 S.W.2d at 934; Herring, 513 S.W.2d at 10.) When there is no action by the trial court sustaining special exceptions, an order granting a dismissal for failure to state a cause of action must be reversed. (Graef v. City of Galveston (1976) 538 S.W.2d 816, 817-18; Moseley, 797 S.W.2d at 242.)

How to Structure the Motion

Rule 91 provides for Special Exceptions, and states:

“A special exception shall not only point out the particular pleading excepted to, but it shall also point out intelligibly and with particularity the defect, omission, obscurity, duplicity, generality, or other insufficiency in the allegations in the pleading excepted to.”

Rule 91a provides the guidelines for Dismissal of baseless causes of actions and states under Rule 91a.1 Motion and Grounds:

“Except in a case brought under the Family Code or a case governed by Chapter 14 of the Texas Civil Practice and Remedies Code, 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.2 governs Contents of Motion and states:

“A motion to dismiss must state that it is made pursuant to this rule, must identify each cause of action to which it is addressed, and must state specifically the reasons the cause of action has no basis in law, no basis in fact, or both.”

Rule 91a.3 governs Time for Motion and Ruling and states:

A motion to dismiss must be:

filed within 60 days after the first pleading containing the challenged cause of action is served on the movant;
filed at least 21 days before the motion is heard; and
granted or denied within 45 days after the motion is filed.

Rule 91a.4 governs Time for Response, and states: Any response to the motion must be filed no later than 7 days before the date of the hearing.

The Court’s Decision

Where a court’s lack of jurisdiction over the subject-matter or over the parties is apparent from the record a judgment that adjudicates the merits of the case is void because the trial court had no capacity to act with respect to that matter as a court. (Mapco Inc., v. Forrest (1990) 795 S.W.2d 700, 703.)

In contrast, when a plaintiff fails to plead facts which state a cause of action but has filed in a court that could otherwise possess jurisdiction over the parties and the subject-matter of the dispute, the trial court is required to allow the plaintiff an opportunity to amend the pleadings before it is authorized to dismiss the suit. (Peck v. Equip. Serv. Co. of San Antonio (1989) 779 S.W.2d 802, 804-05 ["Unless the petition alternatively demonstrates that no cause of action exists or that plaintiff's recovery is barred, the trial court is required to give the plaintiff an opportunity to amend before granting a motion to dismiss ora motion for summary judgment.])

Nonetheless, the defendant waives the right to complain of a defect in pleading that concerns the trial court‘s jurisdiction if the defendant has not raised the issue and plaintiff establishes that the trial court had jurisdiction before resting its case. (Id. at 805.)

Documents for Motion to Dismiss in Texas

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The State of Texas vs ARACELI LOPEZ document preview

Order of Dismissal (Q) - State's Motion to Dismiss

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cause No 20/8 DCR 2/4 THE STATE OF TEXAS IN THE 103d VS. Dist Court Kadi Le pet OF CAMERON COUNTY, TEXAS STATE’S MOTION TO DISMISS TO THE SAID HONORABLE COURT: COMES NOW, THE STATE OF TEXAS, b…