Proposed TRCP 91a and TRCP 169 – early dismissals and expedited actions

November 15

In 2011, the Texas Legislature passed a law which called upon the Texas Supreme Court to modify the Texas Rules of Civil Procedure (TRCP) to allow for, among other things, (a) early dismissals of civil actions without any basis in law or fact and (b) expedited trials for civil actions in which the amount in controversy does not exceed $100,000. On November 13, 2012, the Texas Supreme Court released the proposed rules designed to implement these changes.

Proposed TRCP 91a – Dismissal of Baseless Causes of Action

Proposed TRCP 91a would allow a party to move to dismiss a cause of action on the grounds that it has no basis in law or fact. The proposed rule explains that 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. The proposed rule further states a cause of action has no basis in fact if no reasonable person could believe the facts pleaded.

The motion to dismiss 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 hearing on the motion. Any response to the motion to dismiss must be filed at least 7 days before the date of the hearing. While a party may nonsuit or amend the challenged cause of action in order to avoid the court ruling on the motion to dismiss, it must do so at least 7 days before the date of the hearing. Otherwise, the court must rule on the motion. If the respondent amends the challenged cause of action at least 7 days before the hearing, the movant may, before the hearing, file a withdrawal of the motion or an amended motion to address the amended cause of action.

The court must grant or deny the motion within 45 days if it being filed. The court must award costs and reasonable and necessary attorney fees to the prevailing party, except in actions by or against a governmental entity or a public official acting in his or her official capacity or under color of law.

In many ways, proposed TRCP 91a offers defendants facing suit in Texas state court a tool for the early disposal of cases much like a Rule 12(b)(6) motion to dismiss–something that the Texas Rules presently do not allow for. However, there are some appreciable differences. Perhaps the most significant difference is the possibility that a defendant could be on the hook for the plaintiff’s attorney’s fees in responding to the motion if the court denies the motion to dismiss. Additionally, while a federal court ruling on a Rule 12(b)(6) motion is required to disregard conclusory allegations in the complaint, proposed Rule 91a contains no such requirement.

Proposed TRCP 169 – Expedited Actions

Proposed TRCP 169 establishes an expedited path for cases where the total recovery being sought does not exceed $100,000, including damages of any kind, penalties, costs, expenses, pre-judgment interest, and attorney fees. The rule does not apply to claims governed by the Family Code, the Property Code, the Tax Code, or Chapter 74 of the Civil Practice & Remedies Code (medical liability).

In connection with this rule, the Supreme Court has also proposed to modify TRCP 47 to require a claimant to include in its original pleading a somewhat-specific statment regarding the relief sought by the party. The original pleading must specify whether that party seeks (1) only monetary relief of $100,000 or less, (2) monetary relief of $100,000 or less and non-monetary relief, (3) monetary relief over $100,000 but not more than $500,000, (4) monetary relief over $500,000 but more more than $1,000,000, or (5) monetary relief over $1,000,000. This allows a party to plead into the expedited trial process by claiming monetary relief of $100,000 or less.

When a case qualifies for expedited treatment, the following apply:

  • The discovery period begins when the suit is filed and ends 180 days after the first request for discovery of any kind is served on a party.
  • Each party is limited to a total of six hours to examine all witnesses in oral depositions. The parties may agree to expand this to 10 hours in total, but not more without a court order. The court may modify the deposition hours so that no party is given an undue advantage.
  • Each party is limited to 15 interrogatories to another party.
  • Each party is limited to 15 requests for production to another party.
  • Each party is limited to 15 requests for admission to another party.
  • A party may request, as part of a Rule 194.2 Request for Disclosure, another party to disclose all documents, electronic information, and tangible items that the disclosing party has in its possession, custody, or control and may use to support its claims or defenses.
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