Texas Rule 91a Motion to Dismiss: Deadlines, Fees, and What the Court Can Consider

A Texas Rule 91a motion to dismiss asks the court to dismiss a cause of action because it has no basis in law or fact, decided on the pleading alone. The motion must be filed within 60 days after the challenged claim is served, and the court must rule within 45 days after filing. Since 2019, fees for the prevailing party are discretionary, not mandatory.

This guide covers Texas state court practice under Texas Rule of Civil Procedure 91a (TRCP 91a), titled "Dismissal of Baseless Causes of Action." For federal Rule 12(b)(6), see our motion to dismiss guide.

What a Texas Rule 91a motion to dismiss tests

Rule 91a.1 allows a motion to dismiss "a cause of action" on the ground that it "has no basis in law or fact." Two definitions do the work:

• No basis in law: "the allegations, taken as true, together with inferences reasonably drawn from them, do not entitle the claimant to the relief sought."
• No basis in fact: "no reasonable person could believe the facts pleaded."

The rule does not reach cases brought under the Family Code or governed by Chapter 14 of the Civil Practice and Remedies Code (inmate litigation). Rule 91a.9 adds it to the other dismissal procedures rather than replacing them.

The target is a cause of action, not a lawsuit. The motion must state that it is made under Rule 91a, identify each cause of action it attacks, and state specifically why each lacks a legal basis, a factual basis, or both (Rule 91a.2). A motion that says only "the petition fails to state a claim" invites denial.

The Texas Supreme Court reviews the merits of a 91a ruling de novo, because "the availability of a remedy under the facts alleged is a question of law." City of Dallas v. Sanchez, 494 S.W.3d 722, 724 (Tex. 2016) (per curiam).

The Rule 91a deadline checklist

The 60-day and 45-day periods run forward from service and filing; the others count backward from the hearing date.

Three traps sit in that table.

The 60 days run from service of the pleading that contains the claim. A defendant who answers on day 30 has 30 days left. Calendar it on the day of service under Rule 4's computation rules; our guide to calculating court deadlines covers the federal counterpart, Rule 6.

The ruling clock is the court's, and it is short. The Business Court has noted that the word "must" in 91a.3 creates a mandatory duty to rule within 45 days. Tall v. Vanderhoef, 2025 Tex. Bus. 15, n.2 (Tex. Bus. Ct. Apr. 21, 2025). The hearing must come at least 21 days after filing and the ruling by day 45, so the window for a setting is narrow; ask for one when you file.

An amended motion restarts every period. Rule 91a.5(d) says an amended motion filed under 91a.5(b) "restarts the time periods in this rule." That helps the movant who must answer an amended petition. It also means a respondent's amendment 4 days before the hearing can reset the whole schedule if the movant answers it with an amended motion.

Nonsuit or amend: the three-day window

Rule 91a.5 gives the respondent an exit. The court "may not rule" if, at least 3 days before the hearing, the respondent nonsuits the challenged cause of action or the movant withdraws the motion. If the respondent amends the challenged claim at least 3 days out, the movant may withdraw the motion or file an amended one aimed at the new pleading. Rule 4 does not count Saturdays, Sundays, or legal holidays in a period of five days or less, so a weekend before a Monday hearing does not count toward the 3 days.

After that window closes, absent the parties' agreement, the court "must rule on a motion unless it has been withdrawn or the cause of action has been nonsuited" as the rule allows, and it "must not consider a nonsuit or amendment not filed as permitted by paragraphs (a) or (b)." A repleading 2 days before the hearing does not rescue the claim.

A plaintiff with a fixable pleading problem should amend early. A movant should read the amended petition before deciding whether to stand on the old motion. In Tall, the defendant stood on a motion directed at an earlier petition after the plaintiff filed a second amended petition more than three days before the hearing, and the court applied the live pleading.

What the court can consider

Under Rule 91a.6, 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, together with any pleading exhibits permitted by Rule 59." Rule 59 covers written instruments that are the basis of the claim or defense, attached or copied into the pleading.

Three consequences:

1. Affidavits and discovery do not belong in the motion. If your argument needs a fact the petition does not state, you want summary judgment, not Rule 91a.
2. Affirmative defenses can work, but only on the face of the petition. Bethel v. Quilling, Selander, Lownds, Winslett & Moser, P.C., 595 S.W.3d 651 (Tex. 2020), holds that Rule 91a "permits motions to dismiss based on affirmative defenses" when the plaintiff's own allegations, taken as true, defeat the claim. The Court added that "some affirmative defenses will not be conclusively established by the facts in a plaintiff's petition," and because the rule bars evidence, those defenses "are not a proper basis for a motion to dismiss."
3. A document that is not in the pleading stays out. In In re Farmers Texas County Mutual Insurance Co., 621 S.W.3d 261 (Tex. 2021), the Court held the trial court abused its discretion in refusing to dismiss a negligent-failure-to-settle claim, but held the insured's breach-of-indemnity claim could proceed. It noted that "[t]he entire policy is not before us because it was neither quoted in [the insured's] petition nor attached as an exhibit," so other policy provisions that might defeat liability were left for the trial court on remand.

Bethel also tells you what the court may look at besides the petition: the substance of the motion and the arguments at the hearing, because the limit is on factual inquiry, not legal argument. And the Court has recently called a dispute over "the legal consequences of the agreement's text" the kind that "lies in Rule 91a's heartland." MV Transportation, Inc. v. GDS Transport, LLC, No. 24-0924 (Tex. May 8, 2026).

Rule 91a attorney fees: discretionary since 2019

Older guides, and some search summaries, get this wrong. The original 2013 rule said the court "must" award the prevailing party its fees. The current text of Rule 91a.7 says that, "[e]xcept in an action by or against a governmental entity or a public official acting in his or her official capacity or under color of law, the court may 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." The Supreme Court noted in Bethel that the fee-shifting provision "is no longer mandatory."

Four points to get right:

• Date applicability. The 2019 comment says the amendment "appl[ies] only to civil actions commenced on or after September 1, 2019." An action filed earlier is governed by the rule as originally adopted, which was mandatory.
• Statute. The amendment implemented changes to Tex. Civ. Prac. & Rem. Code § 30.021, which authorizes the court to award costs and reasonable and necessary fees to the prevailing party on a ruling on such a motion.
• Either side can recover. The text says "the prevailing party on the motion," not the movant, so a failed motion carries real downside.
• Fees need evidence. The rule states that "[a]ny award of costs or fees must be based on evidence," and 91a.6 carves out an exception for that purpose. Put a fee affidavit or testimony on the calendar. The rule limits fees to those incurred on the challenged cause of action in the trial court, and its 2013 comment says they include fees for preparing or responding to the motion.

As of October 2026, the consolidated rules carry only the 2013 and 2019 comments to Rule 91a, and we found no later amendment to the rule or to § 30.021. Confirm the current text before filing.

Rule 91a vs. Rule 12(b)(6) and special exceptions

Texas is a fair-notice pleading state. The Business Court in Tall applied "the fair-notice pleading standard" to the 91a inquiry. Sanchez calls the rule's "factual-plausibility standard" "akin to a legal-sufficiency review," and Texas courts of appeals routinely apply fair notice to 91a motions, so build the brief on Texas authority rather than Twombly and Iqbal. Rule 91 special exceptions are the better fit when the problem is how the claim is pleaded rather than whether it exists.

Responding to a Rule 91a motion

1. Test the motion for specificity. Rule 91a.2 requires the motion to identify each challenged cause of action and state specific reasons. A motion that lumps claims together is open to attack.
2. Calendar the response. It is due 7 days before the hearing, and the hearing can be set on 14 days' notice.
3. Decide early whether to amend. If the defect is pleaded facts, an amendment at least 3 days out lets the movant withdraw or file an amended motion, which restarts the clock. If the claim is dead as a matter of law, nonsuiting at least 3 days out bars a ruling, but weigh the fee exposure and any limitations problem first.
4. Argue the law, not the facts you wish you had pleaded. Evidence in your response will not be considered. Point to the allegations already in the petition.
5. Preserve review. A 91a ruling is reviewed de novo on appeal, and the Texas Supreme Court has reviewed denials by mandamus where the trial court abused its discretion, as in Farmers.

For the federal counterparts, see our guides to responding to a motion to dismiss and answering a complaint.

Rule 91a in the Business Court

The Texas Business Court, which began hearing cases in 2024, also decides Rule 91a motions. Tall v. Vanderhoef, 2025 Tex. Bus. 15, is a memorandum opinion that grants and denies a 91a motion in part, applying the fair-notice standard and the rule's amendment provisions. In that court, also check its local procedures and the assigned judge's rulings.

Frequently asked questions

What is the deadline to file a Rule 91a motion to dismiss?

Rule 91a.3 requires the motion to 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 hearing. The court must then grant or deny it within 45 days after filing. An amended motion restarts these periods.

Are attorney's fees mandatory under Rule 91a?

Not anymore. Under Rule 91a.7 as amended in 2019, the court may award the prevailing party its costs and reasonable and necessary attorney fees, except in an action by or against a governmental entity or public official. The amendment applies only to civil actions commenced on or after September 1, 2019; earlier actions kept the original rule.

Can you attach evidence to a Rule 91a motion?

No. Rule 91a.6 bars the court from considering evidence and requires it to decide the motion on the pleading of the cause of action plus any exhibits Rule 59 permits, such as written instruments the claim is based on. The one exception is evidence offered to support a fee award under Rule 91a.7.

Is a Rule 91a motion the same as a Rule 12(b)(6) motion?

No. Both test the pleading without evidence, but Rule 91a adds fixed deadlines, a mandatory ruling window, a response deadline, a nonsuit-or-amend mechanism, and discretionary fee shifting. It also applies in Texas state court, where the governing pleading standard is fair notice.

Before you file or respond

A 91a motion is decided on the pleading and the law, so the brief is only as good as its authorities. A stale or invented citation is easy to miss and expensive to explain; see our guides to federal Rule 11 sanctions and verifying AI-generated citations. CaseRead researches Texas and federal law alongside your firm's own matter documents in one chat, with answers cited to both. Before you file, run the draft through the Hallucination Shield: free, no signup, up to 50 citations per run, each flagged if it cannot be verified.

This article is for general information and is not legal advice. For guidance on a specific case, consult a licensed attorney in your jurisdiction.