Texas Supreme Court is Set to Decide Whether Defendants Can Raise Affirmative Defenses in Rule 91a Motions to Dismiss

By Daniel J. Olds

In Bethel v. Quilling, Selander, Lownds, Winslett & Moser, P.C. and Moody, the Texas Supreme Court is set to decide whether defendants can raise affirmative defenses in Rule 91a motions to dismiss.

In 2011, the Texas Legislature enacted Texas Rule of Civil Procedure 91a, which allows a defendant, in most cases, to “dismiss a cause of action on the grounds 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 inferences reasonably drawn from them, do not entitle the claimant to the relief sought. A cause of action has no basis in fact if no reasonable person could believe the facts pleaded. A motion to dismiss pursuant to Texas Rule of Civil Procedure 91a is analogous to a Rule 12(b)(6) motion to dismiss in federal court. Rule 91a.7 also provides that the party that prevails in a Rule 91a challenge shall be awarded attorney’s fees.

Up until this point, one of the biggest unanswered questions regarding the rule has been whether a movant under Rule 91a can raise affirmative defenses in order to prevail. Part of the problem is that trial courts are required to rule on a Rule 91a motion to dismiss based solely on the pleading of the cause of action, together with any exhibits permitted by Rule 59, but may not consider any evidence in ruling on the motion. While raising a valid affirmative defense would indicate that the cause of action has no basis in law, the consideration of such a defense would also seem to require the trial court to look outside the plaintiff’s pleadings and consider factual evidence. For example, the Fort Worth Court of Appeals, in a case where a Rule 91a movant raised statute of limitations as a reason a cause of action had no basis in law, stated that “the party asserting an affirmative defense bears the burden of both pleading and proving the defense.” Thus, the court held that, to determine whether the statute of limitations had run, the trial court had to look “beyond the plaintiff’s pleadings and review the defendant’s pleadings,” which is seemingly impermissible under the rule.

A related issue is whether a Rule 91a movant can raise an affirmative defense if the affirmative defense can be sustained based on the plaintiff’s pleadings. For example, the Austin Court of Appeals held that a Rule 91a movant could properly assert a statute of limitations defense because the plaintiff’s pleadings demonstrated that their cause of action accrued in 1874, and that because the cause of action had a ten-year statute of limitations, and because the plaintiff did not bring suit until 2015, the defendant could properly assert a statute of limitations defense because the plaintiff’s “pleadings affirmatively demonstrate that its . . . claim accrued more than ten years before it filed suit.” Thus, “it was proper for the district court to dismiss the [plaintiff’s] . . . claim on limitations solely on the [plaintiff’s] pleadings.”

The Texas Supreme Court has already heard arguments in Bethel and should render a decision sometime in the near future. In doing so, the Court appears likely to settle a question that has split Texas attorneys and courts since Rule 91a was enacted.


Daniel J. Olds is an associate in the firm’s litigation practice group. To learn more about his legal practice and experience, please click here.