Early Knockouts vs. Full Rounds: Comparing Texas Rule 91a and Summary Judgment

By Zeke Moya, Partner at Roerig, Oliveira & Fisher, LLP

Introduction: Texas Finally Embraces Early Dismissal

Before 2013, Texas civil litigation lacked a mechanism to efficiently dispose of baseless claims early in a case. Motions to dismiss were limited, and parties often had to endure discovery and a full summary judgment process before meritless pleadings could be challenged. Out-of-state clients—accustomed to Federal Rule 12(b)(6)—frequently expressed disbelief.

That changed with the adoption of Rule 91a, which provides a streamlined procedure for dismissing claims with no basis in law or fact. Initially underutilized due to mandatory fee-shifting and limited case law, Rule 91a has gained traction following 12 years of appellate interpretation and a critical 2019 amendment that made fee awards discretionary.

At the same time, summary judgment remains the dominant tool for resolving disputes on the merits, especially when factual development is necessary. As of January 1, 2024, Texas Rule of Civil Procedure 166a was amended to require courts to rule on summary judgment motions within 75 days of filing—a significant step toward procedural efficiency.

This article compares Rule 91a and summary judgment—both powerful tools when deployed properly—and outlines how attorneys can strategically use them to narrow or eliminate claims.

I. What They Do and How They Work

Rule 91a: A Pure Pleadings Test

Rule 91a permits dismissal when a cause of action lacks any basis in law or fact. The court assumes the truth of all factual allegations but does not defer to legal conclusions. If the pleaded facts—even taken as true—do not entitle the plaintiff to relief, the claim is dismissed. Similarly, if the facts alleged are objectively unbelievable (e.g., irrational or fictitious), the court may dismiss on “no basis in fact” grounds.

Importantly, Rule 91a is strictly confined to the four corners of the plaintiff’s petition and any documents properly attached under Rule 59. The court may not consider evidence, and any motion relying on facts outside the pleadings will be denied. Affirmative defenses can support dismissal only if they are conclusively established on the face of the petition itself.

This mechanism provides defendants a way to challenge legal insufficiency without discovery, delay, or evidentiary dispute.

Summary Judgment: Evidence Rules the Day

By contrast, summary judgment evaluates whether there are genuine fact issues that require a trial. Traditional summary judgment under Rule 166a(c) allows a party to present evidence—affidavits, depositions, interrogatory responses, business records—to prove that it is entitled to judgment as a matter of law.

No-evidence summary judgment under Rule 166a(i) flips the burden: after adequate discovery, the movant may argue there is no evidence of one or more essential elements of the opposing party’s claim. The burden then shifts to the nonmovant to produce competent summary judgment evidence raising a genuine issue of material fact.

Unlike Rule 91a, summary judgment is fundamentally fact-driven, and almost always follows discovery.

II. Timing Rules and the New 75-Day Deadline

Rule 91a: Tight Windows for Quick Disposition

Rule 91a imposes several strict procedural deadlines:

• The motion must be filed within 60 days after service of the challenged pleading.

• The hearing must be set at least 21 days after the motion is filed.

• The court “must” rule within 45 days—although this deadline is considered directory, not jurisdictional. Failure to rule does not result in automatic denial.

  
  

Importantly, the respondent may amend the petition or nonsuit the challenged cause of action at least three days before the hearing, avoiding both a ruling and potential exposure to attorney’s fees.

Summary Judgment: Now Bound by a Ruling Deadline

Effective September 1, 2025, Texas trial courts will be required by law to rule on summary judgment motions within specific statutory deadlines. Under Senate Bill 293, codified in the Texas Government Code, trial courts must:

• Hear or consider a motion for summary judgment within 45 days after the response is filed; and

• Issue a written ruling within 90 days after that hearing or submission date.

  
  

These deadlines are mandatory and apply in district courts, statutory county courts, and the newly created Texas Business Courts. They are designed to eliminate the long-standing problem of summary judgment motions lingering unresolved—sometimes for months or even years—and to create greater transparency and accountability. Clerks must track compliance, and the Office of Court Administration (OCA) will publish annual compliance reports.

In tandem with this statutory overhaul, the Texas Supreme Court has proposed a complete rewrite of Rule 166a, with changes expected to take effect by March 1, 2026. While the revised rule does not alter the substantive standards for summary judgment, it will modernize structure and language, clarify procedural expectations, and align with the new statutory timing requirements. Public comment is open through February 28, 2026, and final adoption is expected shortly thereafter.

These changes significantly shift the strategic landscape. Litigators must now carefully consider when to file dispositive motions to ensure they obtain rulings before trial. Courts, for their part, are under increased pressure to issue timely and documented decisions. The upshot: summary judgment is no longer just a pretrial tool—it is now a time-sensitive, data-tracked, and administratively monitored part of Texas civil practice.

III. Attorney’s Fees: One Shifts, One Doesn’t

Rule 91a: Discretionary Fee-Shifting with Teeth

One of the most impactful aspects of Rule 91a is the potential for attorney’s fee recovery. While the rule originally required mandatory fee awards for the prevailing party, the 2019 amendment to Rule 91a.7 now gives trial courts discretion to award “all costs and reasonable and necessary attorney’s fees incurred” with respect to the challenged cause of action.

This creates both opportunity and risk.

• Movants who prevail in dismissing claims may recover fees, but they must provide evidence that meets the standard articulated in Rohrmoos Venture v. UTSW DVA Healthcare, LLP, 578 S.W.3d 469 (Tex. 2019). This includes time records, hourly rates, and justification under the lodestar method.

  
  

• Nonmovants may be awarded fees if they prevail on a Rule 91a motion. This discourages defendants from filing weak or speculative motions.

  
  

However, if a claim is dismissed for lack of subject matter jurisdiction, courts generally do not award fees, as such dismissals are not rulings on the merits.

Parties can avoid fee exposure by narrowing the issues through a nonsuit or motion withdrawal at least three days before the hearing.

Summary Judgment: No Fees Unless Provided by Law

Summary judgment does not include any built-in fee-shifting mechanism. A party may recover attorney’s fees only if:

• A contract authorizes fee recovery;

• A statute (such as the DTPA or CPRC § 38.001) provides for fees;

• Or the case is brought under the Texas Declaratory Judgments Act and the court exercises its discretion to award fees.

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Winning summary judgment alone does not entitle a party to attorney’s fees unless those underlying bases exist.

IV. Strategic Use: When and Why to File

Rule 91a: Fast, Focused, and Tactical

Rule 91a is ideal when the plaintiff’s pleading is legally deficient on its face or when the claim is clearly barred—such as by limitations, lack of standing, or preemption—without needing discovery. It is especially useful when the defendant wants to apply early pressure, trigger a re-plead, or potentially shift fees.

However, because the court may deny the motion and award fees, it should be used only when the legal deficiency is clear and undisputed.

Summary Judgment: The Workhorse of Texas Litigation

Summary judgment remains the standard tool for resolving fact-driven disputes or eliminating claims that cannot survive the evidentiary burden. It is especially appropriate when:

• Discovery has revealed a fatal weakness;

• An affirmative defense requires extrinsic proof;

• You want to frame trial issues narrowly or obtain pretrial leverage.

  
  

With the new 75-day ruling deadline, summary judgment is also more efficient than ever.

V. Final Thoughts: Use Both — Intelligently

Rule 91a and summary judgment are not alternatives—they are complementary tools. One attacks the pleading, the other attacks the proof.

Used together, they can:

• Save months of litigation;

• Reduce discovery costs;

• Create early settlement leverage;

• And now, with the new court deadlines, we can deliver faster results.

  
  

Texas litigators who understand how and when to deploy Rule 91a or summary judgment—especially in tandem—can control the tempo and scope of litigation from day one.

Need help evaluating a Rule 91a motion or planning a dispositive strategy in a complex case? Reach out. We’ve successfully deployed both tools across industries and venues throughout Texas.