54:3 TRCP 91A: Resolving the Confusion


On the heels of the U.S. Supreme Court’s decision in Ashcroft v. Iqbal, the Texas Supreme Court promulgated Texas Rule of Civil Procedure 91a, which permitted trial courts to dismiss actions that have no basis in either law or fact. Since then, Rule 91a has created considerable confusion among both state and federal courts applying Texas pleading procedure. Looking for guidance, the courts have analogized Rule 91a to Federal Rule of Civil Procedure 12(b)(6), which similarly allows trial courts to dismiss baseless claims at the pre-trial stage. Neither the legislature nor the drafting committee appear to have intentionally invited this analogy. This Comment proposes new language to resolve Rule 91a’s interpretive confusion. Part II begins by discussing the history of Texas pleading—the “fair notice” tapestry into which Rule 91a was woven. It also explores Rule 91a’s legislative and committee history, focusing on the battle over what language to include and exclude, as well as whether to adopt the federal plausibility standard. Part II concludes that neither the legislature nor the drafting committee intended to adopt the federal plausibility standard in Texas. Part III discusses the various analogy-laden appellate and federal district court decisions that attempt to make sense of the rule, but ultimately leaving Texas litigants in a state of uncertainty about the specificity and plausibility a pleading must contain to survive dismissal. Part IV concludes by proposing new language to resolve this apparent confusion. The proposed language clearly distinguishes Rule 91a and the federal plausibility standard. It also clearly delineates each of Rule 91a’s standards—”no basis in law” and “no basis in fact”—to highlight their distinction. This Comment argues that the new language better encapsulates the drafting committee’s true intent and provides courts with a clearer standard that does not invite the improper FRCP 12(b)(6) analogy.