Mechanism 05
Rule 91a — dismissal of a baseless cause of action
Can a Texas court dismiss a claim on the pleadings before any discovery?
Yes. A cause of action has no basis in law if the allegations, taken as true together with reasonable inferences, do not entitle the claimant to the relief sought; and no basis in fact if no reasonable person could believe them. The court decides on the pleadings alone — no evidence, no affidavits — which makes it the closest thing Texas has to a motion to dismiss on the merits.
By John P. Henry · Tex. R. Civ. P. 91a · Reviewed 2026-08-02
The authority
[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.Tex. R. Civ. P. 91a.1
Tex. R. Civ. P. 91a
When it applies
The count pleaded reflexively — a fraud claim that is really a contract claim, a conspiracy count with no underlying tort, a statutory claim under a statute that does not provide a private right of action. Also the claim barred on the face of the pleading by limitations or immunity.
How it is proved up
- Diary all four dates. File within 60 days after the first pleading containing the challenged claim is served on you, and at least 21 days before the hearing; the response is due 7 days before; the court must rule within 45 days of filing.
- Attack causes of action, not allegations. Rule 91a dismisses claims, and a motion aimed at paragraphs is a special exception wearing the wrong label.
- Identify the missing element rather than disputing the facts. The court must take the pleading as true, so the argument is that even then nothing follows.
- Consider amending your own motion carefully — an amended motion under 91a.5(b) restarts every one of those periods, which is sometimes useful and sometimes fatal.
- Ask for fees knowing they are discretionary and must rest on evidence. H.B. 3300 changed 91a.7 from 'must award' to 'may award', effective 1 September 2019 for actions commenced on or after that date.
What defeats it
- A nonsuit or amendment before the hearing, which the rule permits and which mostly costs the movant the filing fee.
- A claim that is merely thin. The standard is no basis in law or fact, not weak.
- Any need for evidence, which puts the matter in summary judgment territory instead.
- Missing the 60 days, after which the motion is simply unavailable on that pleading.
Where I have used it
Answered rather than filed, most recently in a Harris County securities case where a Rule 91a motion and then an amended one were aimed at claims pleaded under Texas, Delaware and Minnesota law on attorney-immunity and statutory-aider grounds — a good demonstration that the amended-motion restart in 91a.5(b) moves the hearing by months.
Questions
How long do you have to file a Rule 91a motion in Texas?
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. Tex. R. Civ. P. 91a.3.
Can evidence be considered on a Rule 91a motion?
No. The court decides the motion based solely on the pleading of the cause of action, together with any pleading exhibits permitted by Rule 59.
Are attorney's fees mandatory under Rule 91a?
Not since 2019. House Bill 3300 amended Tex. Civ. Prac. & Rem. Code § 30.021 and Rule 91a.7 so that the court may, rather than must, award the prevailing party costs and reasonable fees, and any award must be based on evidence.