Early Dismissal in Texas: Rule 91a and the Anti-SLAPP Statute

Why early dismissal matters in a business case

Discovery is where lawsuits get expensive. A tool that disposes of a claim before discovery saves the defendant most of the cost of the case and removes a weak claim's settlement value. Texas has two such tools. Rule 91a is general and tests whether the claim is legally and factually plausible on its face. The Texas Citizens Participation Act is specific to claims that target speech, petitioning or association, with teeth that include mandatory fees. Each has deadlines that run from service, so the decision to use them belongs in the first weeks after a business is sued, alongside the answer discussed in what happens when you are served.

Rule 91a: dismissal of baseless causes of action

The standard

Under Texas Rule of Civil Procedure 91a, a party may move to dismiss a cause of action on the ground that it has no basis in law or fact. 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. It has no basis in fact if no reasonable person could believe the facts pleaded. The court may not consider evidence; it decides on the pleading and any exhibits permitted by Rule 59. In practice this is Texas's counterpart to the federal Rule 12(b)(6) motion, aimed at claims that fail as a matter of law: a fraud claim barred by the economic loss rule, a contract claim on an agreement that the statute of frauds requires to be in writing, a tort claim where no duty exists.

The deadlines

• The motion must be filed within 60 days after the first pleading containing the challenged cause of action is served on the movant.
• It must be filed at least 21 days before the hearing, and the respondent's response is due no later than seven days before the hearing.
• The court must grant or deny the motion within 45 days after it is filed. Courts of appeals have treated that deadline as mandatory but not jurisdictional, so a late ruling is error without an automatic consequence.
• The claimant may avoid a ruling by amending or nonsuiting the challenged claim at least three days before the hearing; if it amends, the movant may withdraw the motion or file an amended motion, which restarts the deadlines.

Fees

Under Rule 91a.7, for cases filed on or after September 1, 2019, the court may award the prevailing party on the motion its costs and reasonable and necessary attorney's fees incurred on the challenged cause of action. Before that date the award was mandatory in either direction, which made the motion a gamble; the 2019 amendment, implementing HB 3300, made it discretionary. A business that wins a 91a motion can ask for its fees; one that loses may have to pay the other side's, so the motion is reserved for claims that are clearly deficient on their face.

Filing a Rule 91a motion does not waive a special appearance or a venue motion, but the movant is bound by the ruling, including any fee award.

The Texas Citizens Participation Act

What it does

The TCPA, Civil Practice and Remedies Code chapter 27, allows a defendant to move to dismiss a legal action that is based on or in response to the party's exercise of the right of free speech, the right to petition or the right of association. The motion must be filed not later than the 60th day after service of the legal action, unless extended by agreement or for good cause. Filing it suspends all discovery until the court rules, except limited discovery the court allows on the motion. The hearing must be set within 60 days after service of the motion, extendable to 90 days for docket conditions or 120 days if limited discovery is allowed, and the court must rule within 30 days after the hearing concludes. If it does not, the motion is denied by operation of law and the movant may appeal.

The burden shifting

The movant must first show the action is based on or in response to a protected right. The court then may not dismiss if the claimant establishes by clear and specific evidence a prima facie case for each essential element of the claim. Even so, the court must dismiss if the movant establishes an affirmative defense or other ground on which it is entitled to judgment as a matter of law. If the court dismisses, section 27.009 requires it to award the movant court costs and reasonable attorney's fees and allows sanctions sufficient to deter similar actions. If the motion was frivolous or filed solely for delay, the court may award fees to the responding party.

Why it rarely reaches commercial cases now

From 2011 to 2019 the TCPA was used against many ordinary business claims, because a trade secret suit or a non-compete suit could be described as a response to the defendant's "association" with a new employer. The 2019 amendments in HB 2730 narrowed the definitions and expanded the exemptions in section 27.010. The chapter now does not apply to, among others:

• a legal action against a person primarily engaged in selling or leasing goods or services, where the statement or conduct arises out of the sale or lease and the intended audience is an actual or potential buyer or customer (the commercial speech exemption);
• a legal action arising from an officer-director, employee-employer or independent contractor relationship that seeks recovery for misappropriation of trade secrets or corporate opportunities, or seeks to enforce a non-disparagement agreement or a covenant not to compete;
• actions under the Insurance Code or arising out of an insurance contract;
• a legal action based on a common law fraud claim;
• Deceptive Trade Practices Act claims other than certain professional-services claims;
• eviction suits, bodily injury and wrongful death actions, and legal malpractice claims.

Section 27.010(b) preserves the Act's application to suits over journalism, creative works and consumer reviews even when an exemption would otherwise apply. For a Dallas business the TCPA remains relevant mainly in defamation and business disparagement disputes, suits over online reviews and public statements, and some tortious interference claims that rest on what the defendant said. Whether a departing-employee case falls inside an exemption often turns on exactly how the claims are pleaded, which is why pleading and the TCPA analysis go together.

Which tool, and when

What these motions cost and save

Each motion is a focused brief and a hearing. A 91a motion is comparatively inexpensive because there is no evidence to assemble; a TCPA motion is heavier because the response requires evidence and the fee exposure is real. Against that, a successful motion ends a claim before any document is produced or any officer is deposed, and the discovery stay in a TCPA case alone can change the economics of a dispute. A litigator weighs the strength of the motion, the fee exposure and the effect on the rest of the case; summary judgment, discussed in summary judgment in Texas, remains the tool for claims that fail on the evidence rather than on the pleading.

Example

Suppose a Dallas accounting firm is sued by a former client for breach of contract, negligence and fraud after a dispute over fees, and the fraud count alleges only that the firm promised good service and did not deliver. Within 60 days of service the firm moves under Rule 91a to dismiss the fraud claim: a promise of future performance, without allegations that the firm had no intention of performing, is not a misrepresentation of fact, so the claim has no basis in law. The client has until three days before the hearing to amend; if the amended pleading adds specific facts, the firm may withdraw or refile. If the court grants the motion, the case proceeds on contract and negligence alone and the firm may seek its fees on the fraud claim. The TCPA would not apply: a fee dispute with a client is not based on protected speech, and common law fraud is exempt in any event.

Tina Wysk defends Dallas businesses against baseless claims and evaluates Rule 91a and TCPA motions as part of the first review of any new suit.