Some types of motions of motions are expressly addressed by the rules of civil procedure. See, e.g., TEX. R. CIV. P. 166a (summary judgment motions). Others are governed by statute. See, e.g., TEX. CIV. PRAC. & REM. CODE § 27.001, et. seq. (Texas Citizen’s Participation Act, or Anti-SLAAP).

The Texas Supreme Court recently addressed a type of motion that is largely ungoverned by the procedural rules—a plea to the jurisdiction. See Tex. Med. Res., LLP v. Molina Healthcare of Tex., Inc., 659 S.W.3d 424, 440 (Tex. 2023). This type of plea has thus far escaped the “steady shift away from the common-law forms of pleading to the more specific motion practice set out in the rules of civil procedure.” Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 239-42 (Tex. 2004) (Brister, J. dissenting).

Without a specific rule of procedure or statute governing pleas to the jurisdiction, practitioners may be left filling in the gaps on some of the details of that plea. For example, what types of issues can be raised in a plea to the jurisdiction? Molina gave some guidance on that question.

I. What is a plea to the jurisdiction?

About two decades ago, the Supreme Court defined a plea to the jurisdiction as follows:

        A plea to the jurisdiction is a dilatory plea, the purpose of which
is to defeat a cause of action without regard to whether the claims
asserted have merit. The claims may form the context in which a
dilatory plea is raised, but the plea should be decided without delving
into the merits of the case. The purpose of a dilatory plea is not to force
the plaintiffs to preview their case on the merits but to establish a
reason why the merits of the plaintiffs’ claims should never be reached.
This does not mean that evidence cannot be offered on a dilatory plea;
on the contrary, the issues raised by a dilatory plea are often such that
they cannot be resolved without hearing evidence. And because a court
must not act without determining that it has subject-matter
jurisdiction to do so, it should hear evidence as necessary to determine
the issue before proceeding with the case.
But the proper function of a dilatory plea does not authorize an inquiry
so far into the substance of the claims presented that plaintiffs are
required to put on their case simply to establish jurisdiction. Whether
a determination of subject-matter jurisdiction can be made in a
preliminary hearing or should await a fuller development of the merits
of the case must be left largely to the trial court’s sound exercise of
discretion.

Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000).

II. What are the permissible uses of a plea to the jurisdiction
historically?

No particular rule or statute governs pleas to the jurisdiction. See Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000). Practitioners may wonder what constitutes a permissible use of a plea to the jurisdiction.

Justice Brister, in a dissent, referenced this question. He noted that “[p]leas to the jurisdiction are nothing new.” Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 239 (Tex. 2004) (Brister, J. dissenting). They had been around since the founding of our nation. Id. at 239-40 (“In his Commentaries on the Laws of England, Blackstone lists them as a category of dilatory pleas . . . .”).

Justice Brister summarized a host of doctrines that were raised in pleas to the jurisdiction: “objections based on personal jurisdiction, subject-matter jurisdiction, dominant jurisdiction, venue, capacity, and conflict of laws.” Id. at 240. Recent authorities, however, had not delineated which matters could or could not be raised in a plea to the jurisdiction.

III. Is there a practical reason to specify the types of issues that may be
raised in a plea to the jurisdiction?

There are practical reasons to pin down precisely what is an appropriate subject for a plea to the jurisdiction.

First, it allows for more procedural certainty. “There is no rule—no case and no code—that specifies the form, deadlines, or evidentiary requirements for pleas to the jurisdiction generally.” Id. at 242.

This is why, more generally, utilizing common-law forms of pleading has fallen out of favor. “[T]here has been a steady shift away from the common-law forms of pleading to the more specific motion practice set out in the rules of civil procedure.” Id. at 240. In part, this allows for more certainty on procedural issues; “[i]n substance, these motions could still be categorized as ‘pleas to the jurisdiction;’ but in form, they must comply with the current rules of civil procedure.” Id.

Second, rulings on some pleas to the jurisdiction allow for an interlocutory appeal. See TEX. CIV. PRAC. & REM. CODE § 51.014(a)(8) (“grants or denies a plea to the jurisdiction by a governmental unit as that term is defined in Section 101.001”).

IV. What did the Texas Supreme Court say?

The Texas Supreme Court recently gave a partial answer to the question of what types of issues may be raised in a plea to the jurisdiction. The Court indicated that “issues [that] implicate[] constitutional standing” are proper subjects of a plea to the jurisdiction. Tex. Med. Res., LLP v. Molina Healthcare of Tex., Inc., 659 S.W.3d 424, 441 (Tex. 2023).

But recall that over the last couple decades, the Texas Supreme Court has narrowed the issues that are considered “standing.” See Dubai Petroleum Co. v. Kazi, 12 S.W.3d 71, 76 (Tex. 2000) (“the modern direction of policy is to reduce the vulnerability of final judgments to attack on the ground that the tribunal lacked subject matter jurisdiction”); Pike v. Tex. EMC Mgmt., LLC, 610 S.W.3d 763, 773-74 (Tex. 2020) (cleaned up) (“[S]tanding is a word of many, too many, meanings.”). Some “older opinions use standing as a short-hand reference for a plaintiff’s ability
to fulfill some statutory prerequisite to bringing suit or recovering on a claim,” but the Texas Supreme Court has more recently noted that “[t]he phrasing is regrettable and has tangled the line demarcating issues that truly implicate a trial court’s subject-matter jurisdiction from those pertaining to the merits.” Tex. Med. Res., LLP v. Molina Healthcare of Tex., Inc., 659 S.W.3d 424, 439-40 (Tex. 2023).

This modern trend limits the types of subjects properly raised in a plea to the jurisdiction:

“A challenge to a party’s standing is an attack on the party’s ability
under the United States and Texas Constitutions to assert a claim.”
The constitutional requirements of standing are (1) a concrete,
particularized, actual or imminent injury; (2) that is traceable to the
defendant’s conduct; and (3) that would be redressed by a favorable
decision. A plea to the jurisdiction is one appropriate vehicle for
challenging a plaintiff’s ability to meet these constitutional
requirements in state court.

Tex. Med. Res., LLP v. Molina Healthcare of Tex., Inc., 659 S.W.3d 424, 440 (Tex. 2023).

Relatedly, a “pure issue of law pertaining to the merits” is not properly raised in a plea to the jurisdiction. Id. at 441.

V. Does it matter?

Most of the time, the label of the motion may be inapposite. “We look to the substance of a plea for relief to determine the nature of the pleading, not merely at the form of the title given to it.” Tex. Med. Res., LLP v. Molina Healthcare of Tex., Inc., 659 S.W.3d 424, 441 (Tex. 2023). In Molina, “both parties agree[d] that we can render a decision on the merits” because the legal issues could “have been raised in the trial court by traditional” means. Cf. id.

Nonetheless, it goes without saying that a practitioner would be well served to properly label the motion—especially now that the Texas Supreme Court has weighed in on the issue. Should one face an improperly labelled “plea to the jurisdiction,” one should object and make a record of harm suffered by circumventing the proper procedural mechanism.