How Does Due Order of Pleading Affect Texas Special Appearances?

A special appearance challenges a court’s personal jurisdiction over a defendant in Texas. Unlike many other types of pleadings or motions, the timing of the special appearance is essential.

Generally speaking, the special appearance must be filed as the first responsive pleading or as part of the first responsive pleading. In other words, when the defendant receives a complaint, the special appearance must come either before an answer or a motion to dismiss, or as part of an answer or motion to dismiss. If the defendant files another pleading instead of a special appearance, the court may interpret that filing as the defendant’s agreement that the court has jurisdiction.

In addition, the defendant must request and obtain a hearing and a ruling on the special appearance before attempting to address any other issue in the case, under Texas Rule of Civil Procedure 120a(2).

Understanding what does and does not suffice to waive a special appearance can be challenging. Generally speaking, the special appearance is considered waived (i.e. the defendant has agreed that the court has jurisdiction) if the defendant asks the court to do anything that would be inconsistent with the jurisdictional challenge.

It follows, then, that defendants may generally proceed with the special appearance without waiving it: the question “does this court have jurisdiction over this person?” has to be answered before the rest of the case can be addressed.

In past cases, courts have found that defendants can do things like the following without waiving their challenge of the court’s jurisdiction:

  • Enter a Rule 11 agreement to reschedule a hearing or extend the pleading deadline,
  • Request a single judge and a complex case assignment,
  • Move to strike plaintiff’s amended pleading, if it focuses solely on the plaintiff’s jurisdictional allegations,
  • Motion to defer hearing, unless its goal is to further a decision on the merits,
  • Challenging the method of service in the special pleading.

However, cases have also found that actions like the following may result in waiver:

  • Motion to strike allegations or causes of action,
  • Moving for a continuance to obtain evidence that goes to the merits of the case, such as DNA testing in a paternity suit,

Motion to set aside a default judgment and grant new trial, when the motion stated the defendant was ready for trial.

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