Mechanism 64
Special appearance and the due order of pleading
How does an out-of-state defendant challenge personal jurisdiction in Texas?
By sworn special appearance, filed before any other plea, pleading or motion, and heard and determined before them. The rule is unforgiving about order: every appearance before judgment that does not comply is a general appearance, and a general appearance concedes the jurisdiction the special appearance was filed to contest.
By John P. Henry · Tex. R. Civ. P. 120a · Reviewed 2026-08-02
The authority
Every appearance, prior to judgment, not in compliance with this rule is a general appearance.Tex. R. Civ. P. 120a(1)
Tex. R. Civ. P. 120a
When it applies
The defendant sued in Texas with no Texas contacts. It is the offensive form of the forum-selection entry in this catalog — and the first question is always whether the client signed something that already answered it.
How it is proved up
- File it first. Before the answer, before a venue motion, before an agreed scheduling order, before anything. It may be filed in the same instrument as other pleas, but it must not come after them.
- Swear it. An unsworn special appearance is defective, though the defect is curable by amendment before the hearing.
- Get it heard and determined before any other plea. The rule requires it, and letting the case move on other fronts first is itself a problem.
- Take the discovery you need without fear. Rule 120a expressly provides that discovery, depositions, requests for admission and the issuance of witness process do not waive the special appearance.
- Read your own client’s contract before drafting. A Texas forum-selection clause is consent to jurisdiction, and a well-written minimum-contacts brief that never mentions it is the most common way these fail.
What defeats it
- A prior filing of any kind, which converts the appearance to a general one.
- A forum-selection clause naming Texas, which supplies consent independent of minimum contacts.
- Purposeful availment the brief does not address — a single Texas contract deliberately entered can be enough for specific jurisdiction on a claim arising from it.
- Seeking affirmative relief from the court before the special appearance is determined.
Where I have used it
Chiefly from the other side of it, answering special appearances in a Bexar County program where the contracts fixed forum in Bexar County — which is the best education in how to file one properly. The recurring failure was order and omission, not the merits.
Questions
What is the due order of pleading in Texas?
The requirement that a special appearance under Rule 120a be filed before any other plea, pleading or motion, and be heard and determined before them. Filing anything first waives the challenge to personal jurisdiction.
Does taking discovery waive a special appearance in Texas?
No. Rule 120a expressly provides that the issuance of process for witnesses, the taking of depositions, serving requests for admission and other discovery do not constitute a waiver.
Can a special appearance be amended?
Yes. Rule 120a permits any defects, including the want of a verification, to be cured by amendment before the special appearance is determined.