In March 2013, Texas practitioners gained a potentially powerful tool in Rule 91a of the Texas Rules of Civil Procedure to achieve early dismissal of baseless causes of action. This rule initially attracted attention from the legal community because of its mandate that the court grant the prevailing party “all costs and reasonable and necessary attorney fees incurred” in most circumstances. In October 2014, a broader audience learned the impact of this new rule when Jerry Jones, the owner of the Dallas Cowboys, successfully used it to achieve dismissal of allegations of civil sexual assault.
At least one federal court applying Texas law has interpreted Rule 91a as the state analogue to Fed. R. Civ. P. 12(b)(6). While Rule 12(b)(6) motions are common in federal cases, a review of recent, reported Texas cases indicates that lawyers have shown some reluctance to employ Rule 91a. Publication of future appellate decisions interpreting Rule 91a will certainly ease practitioners’ concerns about the tool’s novelty. In the interim, this article offers some insights concerning Rule 91a that can help practitioners decide whether Rule 91a may be appropriate in their cases.
