Understanding the Mandatory Attorneys' Fees Provision in Texas Rule 91a

Texas litigation is often expensive, but many people do not realize that filing a legally defective lawsuit can expose them to liability for the other side's attorneys' fees before the case ever reaches trial.

One of the most powerful—and frequently misunderstood—procedural tools in Texas civil litigation is Texas Rule of Civil Procedure 91a. While most discussions focus on how Rule 91a allows courts to dismiss meritless claims early, fewer people appreciate the financial consequences that can follow. Specifically, Rule 91a.7 contains a mandatory fee-shifting provision that can transform a weak lawsuit into a costly mistake.

Whether you are considering filing a lawsuit or defending against one, understanding Rule 91a.7 is critical.

What Is a Rule 91a Motion?

Texas Rule of Civil Procedure 91a permits a party to move for dismissal of a cause of action that has no basis in law or fact.

The rule provides:

"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."

The rule further states:

"A cause of action has no basis in fact if no reasonable person could believe the facts pleaded."

Tex. R. Civ. P. 91a.1.

Unlike summary judgment practice, Rule 91a generally focuses on the pleadings themselves rather than extensive evidence.

The Hidden Danger: Rule 91a.7

The most overlooked section of Rule 91a is often Rule 91a.7.

The rule states:

"Except in an action by or against a governmental entity or a public official acting in his or her official capacity or under color of law, the court must award the prevailing party on the motion all costs and reasonable and necessary attorney fees incurred with respect to the challenged cause of action in the trial court."

Tex. R. Civ. P. 91a.7 (emphasis added).

The key word is "must."

Unlike many fee-shifting statutes that grant courts discretion, Rule 91a.7 generally requires an award of reasonable and necessary attorneys' fees to the prevailing party.

Why the Rule Matters

Many lawsuits fail eventually. That alone is not unusual.

Rule 91a addresses a different problem: claims that should never have been filed in the first place because they are legally or factually deficient on their face.

When a court grants a Rule 91a motion, the defendant may recover the attorneys' fees incurred in obtaining dismissal.

For example:

• A plaintiff sues based on a legal theory that Texas law does not recognize.
• A petition alleges facts that, even if true, do not create liability.
• A claim is clearly barred by an absolute legal defense apparent from the pleadings.

In these situations, the plaintiff may not only lose the case but may also receive a judgment for the opposing party's attorneys' fees.

Can Defendants Recover Fees If the Motion Is Denied?

Yes.

The fee-shifting provision works both ways.

If a defendant files an unsuccessful Rule 91a motion and loses, the plaintiff may become the prevailing party on the motion and may seek recovery of reasonable and necessary attorneys' fees incurred in responding.

As a result, lawyers should avoid filing Rule 91a motions reflexively. A poorly conceived motion can create fee exposure for the movant.

What Counts as "Reasonable and Necessary" Fees?

Although Rule 91a.7 makes fee awards mandatory for the prevailing party, the amount must still be reasonable and necessary.

Texas courts generally evaluate fee requests using familiar fee-reasonableness factors, including:

• Time and labor required;
• Novelty and difficulty of the issues;
• Skill required to perform the legal services;
• Fees customarily charged in the locality;
• Results obtained.

The prevailing party typically supports the request with attorney affidavits and billing evidence.

Strategic Considerations for Plaintiffs

Before filing suit, plaintiffs should carefully evaluate:

• Whether the legal theory is recognized under Texas law;
• Whether the facts alleged actually satisfy the elements of the claim;
• Whether obvious legal barriers exist;
• Whether the pleadings clearly state a viable cause of action.

A lawsuit that survives Rule 91a may proceed into discovery. A lawsuit dismissed under Rule 91a can result in an early defeat and an award of attorneys' fees against the plaintiff.

Strategic Considerations for Defendants

Defendants should consider Rule 91a when:

• The petition fails to allege required legal elements;
• The claim is legally impossible even if all allegations are accepted as true;
• Existing law clearly forecloses the cause of action.

When used appropriately, Rule 91a can eliminate litigation costs before discovery begins and may allow recovery of attorneys' fees.

Final Thoughts

Texas Rule of Civil Procedure 91a.7 creates one of the strongest fee-shifting mechanisms in Texas civil litigation. Unlike many procedural rules, it contains mandatory language requiring courts to award costs and attorneys' fees to the prevailing party on a Rule 91a motion.

For plaintiffs, the rule underscores the importance of filing legally viable claims. For defendants, it provides a powerful tool to challenge baseless lawsuits early and potentially recover litigation expenses.

As with many procedural devices, the greatest danger is not knowing it exists until it is too late.

At David C. Barsalou, Attorney at Law, PLLC, we help clients navigate business, family, tax, estate planning, and real estate matters ranging from document drafting to litigation with clarity and confidence. If you’d like guidance on your situation, schedule a consultation today. Call us at (713) 397-4678, email barsalou.law@gmail.com, or reach us through our Contact Page. We’re here to help you take the next step.