Understanding Special Appearance Procedures in Texas

In some lawsuits that are filed in Texas, the defendant wishes to contest the state court’s jurisdiction over his or her person or property. To do this, the defendant must file a “special appearance” according to the rules laid out in Texas Rule of Civil Procedure 120a.

Special appearances are most often filed by defendants who are not residents of Texas, especially if they also have no property within the state. The Due Process Clause of the U.S. Constitution protects U.S. citizens from being hauled into a court unless they have a meaningful contact, tie, or business relationship with the place in which the court has jurisdiction.

Generally speaking, special appearances must be filed before any other pleadings or motions (such as an answer or a motion to dismiss) are filed. If another pleading or motion is filed first, the court may interpret it as a waiver of the right to contest jurisdiction.

Rule 120a first requires a special appearance to be part of a sworn motion. Although most motions contain the words “special appearance” in the title, generally speaking, a court will acknowledge the motion as one for special appearance as long as it challenges the court’s personal jurisdiction.

In most motions for special appearance, the defendant will “swear” the motion. However, even if the motion is filed without being sworn, this problem can generally be cured by invoking Rule 120a(1), which allows amendments to cure defects and which does not set a deadline on filing these amendments. Nevertheless, it is best to have the motion sworn properly before it is filed as well as double-checked to ensure it meets the other requirements of Rule 120a. Not all defects in a motion for special appearance can be cured after the fact: an untimely filing, for instance, may be incurable, as may a special appearance that does not give sufficient notice of its goal: to challenge personal jurisdiction.

A special appearance should not be confused with a motion to quash service or a plea to the jurisdiction. In a motion to quash service, the goal is a new citation. In a plea to the jurisdiction, the defendant challenges whether the court has jurisdiction to hear the subject matter at issue in the case – not whether the court has the power to call the defendant into court.

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