The process is underway to create a motion to dismiss in the Texas Rules of Civil Procedure. The Texas Supreme Court Advisory Committee on Nov. 18 discussed draft rules to create a motion to dismiss, pursuant to a provision in the 2011 loser-pays bill, House Bill 274. The subcommittee that created the draft rules plans to present revisions on Dec. 9, which will reflect the advisory committee’s suggested changes, says subcommittee chairman David Peeples. “It was a very helpful discussion,” says Peeples, presiding judge of the 4th Administrative Judicial Region in Bexar County. He notes that the Nov. 18 discussion lasted from 9 a.m. to 3 p.m. H.B. 274 called for creation of a motion to dismiss for claims that have “no basis in law or fact.” Peeples says much of the advisory committee’s discussion focused on how to define that phrase. The subcommittee’s draft rules say, “A claim has no basis in law when it is not warranted by existing law or by a reasonable argument for the extension, modification, or reversal of existing law or the establishment of new law.” They continue, “A claim has no basis in fact when no reasonable person could believe that the material allegations are true.” The subcommittee plans to tweak that section of the draft rules, says Peeples. “We’re going to go back to the drawing board on that part of it,” he says. There was more discussion at the meeting on the definition for “no basis in fact” than on the “no basis in law” portion, he says. The draft rules also addressed the timeline to file a motion to dismiss, a party’s right to amend its pleading, and the court’s award of costs and attorney’s fees to the prevailing party, among other things.
-- Angela Morris