Texas Finally Promulgates Its Version of FRCP 12(b)(6)

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Contributing Author: Scott Dayton

Many out-of-state litigators are surprised to learn that Texas has no equivalent to Federal Rule of Civil Procedure (FRCP) 12(b)(6).  But that is about to change.

In 2011, the 82nd Texas Legislature passed House Bill 274 (HB 274). HB 274 called upon the Texas Supreme Court to promulgate four sets of procedural rule amendments in order to implement certain legislative policy initiatives. One of the things HB 274 did was add Government Code § 22.004(g), which calls 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.”  On November 13, 2012, the Texas Supreme Court published its proposed (the rules are subject to change based on comments received by February 1, 2013) rules in response to its legislative mandate:  Texas Rule of Civil Procedure (TRCP) 91a.

The guts of TRCP 91a are contained in TRCP 91a.1, requiring dismissal of a cause of action that “has no basis in law or fact”:

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 [relating to inmate litigation], 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.

Other rules contained in the new TRCP 91a include:

  • The motion must be filed within 60 days after the first pleading containing the challenged cause of action is served on the movant, and at least 21 days before the motion is heard.  It must be granted or denied within 45 days after the motion is filed.
  • Any response to the motion must be filed no later than 7 days before the date of the hearing.
  • A respondent may avoid a ruling on the motion if, at least seven days before the date of the hearing, he files a nonsuit of challenged cause of action, or the movant files a withdrawal of the motion.
  • A respondent may amend the challenged cause of action at least seven days before the hearing date.  If he does, then the movant may either withdrawal his motion or amend it to address the amended cause of action.
  • Each party is entitled to 14 days notice of the hearing on the motion to dismiss.
  • The court may, but is not required to, conduct an oral hearing on the motion.
  • The court may not consider evidence in ruling on the motion and must decide the motion based solely on the pleading of the cause of action.
  • Except in certain actions involving the government, the court “must award the prevailing party on the motion all costs and reasonable and necessary attorney fees incurred with respect to the challenged cause of action in the trial court.”
  • Filing a motion to dismiss and obtaining a ruling on it does not waive any special appearance or motion to transfer venue.

Thus, subject to any amendments, Texas will soon have its equivalent to a FRCP 12(b)(6) motion.  Indeed, FRCP 12(b)(6) is certain to inform the decisions of Texas judges deciding motions under TRCP 91a.