Mechanism 08
Nonsuit, and the three things it does not kill
Can a Texas plaintiff dismiss its own case to avoid a ruling?
It can dismiss, but it cannot escape. The right to nonsuit is close to absolute until the plaintiff has introduced all its evidence other than rebuttal. What survives is anything already pending: a claim for affirmative relief, a motion for sanctions, and the costs. The operative word in the rule is pending.
By John P. Henry · Tex. R. Civ. P. 162 · Reviewed 2026-08-02
The authority
[A] dismissal … shall not prejudice the right of an adverse party to be heard on a pending claim for affirmative relief or excuse the payment of all costs taxed by the clerk. A dismissal … shall have no effect on any motion for sanctions, attorney’s fees or other costs, pending at the time of dismissal.Tex. R. Civ. P. 162
Tex. R. Civ. P. 162
When it applies
The plaintiff losing interest, the plaintiff who has read your summary judgment motion, the plaintiff whose expert just fell apart. Watch for the nonsuit filed the week before a dispositive hearing — it is a signal, and it is a deadline.
How it is proved up
- File the counterclaim for affirmative relief early, not when you sense the nonsuit coming. A claim seeking relief independent of the plaintiff’s success survives; a defensive plea does not.
- File the sanctions motion before the nonsuit, not after. The rule preserves motions pending at the time of dismissal, and a motion filed the next day is not one.
- Understand what does not survive: your pending no-evidence motion disappears with the claim it attacked, because there is no longer a cause of action to test.
- Take the costs. They are preserved expressly and they are rarely asked for.
- Consider that a nonsuit without prejudice permits refiling within limitations, so the question is often whether to insist on a dismissal with prejudice as part of a resolution.
What defeats it
- Nothing, as to the nonsuit itself — the right is the plaintiff’s and the trial court has no discretion to refuse it, though the order is ministerial and the dismissal takes effect when filed.
- A counterclaim that is really a denial dressed up, which is not a claim for affirmative relief.
- Sanctions conduct that has not yet been put before the court in a motion.
Where I have used it
Defensively, as the reason a sanctions motion or counterclaim gets filed on a schedule rather than when it becomes emotionally satisfying. A defendant who waits to see whether the plaintiff will walk has already lost the two remedies that outlive the walk.
Questions
Can a Texas plaintiff nonsuit at any time?
At any time before the plaintiff has introduced all of its evidence other than rebuttal evidence. The right is substantially absolute and the trial court's signing of the order is ministerial.
Does a nonsuit defeat a pending counterclaim?
No, where the counterclaim is a claim for affirmative relief. Rule 162 preserves the adverse party's right to be heard on a pending claim for affirmative relief.
Does a nonsuit moot a pending motion for sanctions?
No. Rule 162 provides that a dismissal has no effect on any motion for sanctions, attorney's fees or other costs pending at the time of dismissal.