Removal & Special Appearances in Texas

Texas Lawyers Serving Clients & Counsel in Jurisdiction Objections

Texas’ business friendly environment attracts people from across the world. While that brings benefits for economic growth and diversity, it also creates challenges – especially when disputes involving out-of-state parties require intervention from the court.

Before a civil court can intervene in cases, out-of-state defendants facing legal action in Texas may wish to explore options for pursuing:

  • A special appearance, which generally challenges a state court’s jurisdiction over the defendant’s person or property.
  • Removal to federal court, which seeks to transfer a civil action from state trial court to federal district court.

If you, your business, or your client has been sued in Texas and wish to challenge jurisdiction, Hendershot Cowart P.C. can help. Our attorneys have extensive experience litigating complex claims and jurisdictional objections in Texas venues and regularly work with out-of-state clients and counsel nationwide in matters of special appearance and removal to federal court.

To speak with a lawyer, call or contact us online.

Texas Long-Arm Statute and Non-Resident Jurisdiction Challenge

In Texas, a series of statutes codified under Chapter 17, Subchapter C of the Texas Civil Practice and Remedies Code (colloquially known as the Texas “Long-Arm Statute”) govern the reach of Texas courts and their jurisdiction over out-of-state individuals or businesses (“nonresidents” or “foreign” entities).

When filing a lawsuit in Texas against an out-of-state entity, plaintiffs must plead allegations which sufficiently trigger Texas long-arm statute. When a defendant is not personally in Texas and does not own property in the state, plaintiffs will typically assert jurisdiction by arguing:

  1. The defendant engaged in a contract with a Texas resident, and performance of the contract takes place, in part or in whole, in Texas;
  2. The defendant committed a tort (civil wrong), in part or in whole, in Texas;
  3. The defendant recruited Texas residents for employment, either directly or through an intermediary, in or out of Texas.

To prove jurisdiction, these or any other alleged bases for jurisdiction must also conform with due process requirements, including that defendants meet the threshold for “minimum contacts” with the state (which can include correspondence with a Texas entity over the internet), and that jurisdiction meets “traditional notions of fair play and substantial justice.”

Rule 120a. Special Appearance

While it is the plaintiff’s burden to assert the basis (or bases) for jurisdiction, defendants are responsible for negating every basis raised. To do this, defendants may rely on:

  • Facts, which requires submission of evidence;
  • Law, which requires proof there is no legal basis for jurisdiction; or
  • Both facts and law

Beyond raising case-specific arguments, out-of-state defendants who wish to challenge jurisdiction must do so by filing a special appearance in accordance to Texas Rule of Civil Procedure 120a.

What Is a Special Appearance?

A special appearance is Texas terminology for a motion to dismiss for lack of personal jurisdiction.

Special appearances are distinct from general appearances in that they are made solely to challenge jurisdiction. A special appearance must be filed prior to a motion to transfer venue or any other general appearance (such as a plea, hearing, or motion). Failure to do so is considered acknowledgement that the court has jurisdiction over the matter and may waive a defendant’s right to challenge a court’s jurisdiction over the matter.

Who Can Challenge Jurisdiction?

Parties that do not own property, solicit business, bank, or sign contracts in Texas, or who have not otherwise availed themselves of the protection of Texas laws can contest jurisdiction. Although there is some debate over whether online advertising (such as a website) constitutes soliciting business in Texas, unless you specifically target Texas residents or other businesses, most courts rule that it does not.

Key Facts About Special Appearance in Texas

1. Timing Is Important.

Special appearances must be filed first, before any other pleadings or motions, including a motion to transfer venue or motion to dismiss.

Though a special appearance may be filed as part of the first responsive pleading, non-resident defendants must be careful of filing other pleadings before filing a special appearance, as doing so may be interpreted as a waiver of the right to contest jurisdiction.

2. A Defendant May (Inadvertently) Waive Their Personal Jurisdiction Objection

A defendant may waive or forfeit their personal jurisdiction objection by their conduct.

Warning: If you engage the court through a general appearance (any appearance that does not comply with Rule 120a), you may establish the court’s jurisdiction and waive your right to contest jurisdiction.

So what constitutes a waiver of special appearance? It depends. A general appearance is the most common waiver, and occurs when a defendant:

  1. Invokes the court’s judgment on issues unrelated to jurisdiction;
  2. Recognizes by its acts that an action is properly pending; or
  3. Seeks affirmative action from the court.

The prevailing principle is that personal jurisdiction is waived when defendants request judicial action inconsistent with special appearance, and not by proceedings related or ancillary to special appearance.

Because due order of hearing requires that it must first be determined if a court has jurisdiction over a defendant before any other matter in the case can be addressed, even a seemingly minor oversight or mistake can cost defendants their right to challenge personal jurisdiction.

3. Special Appearance Must Be By Sworn Motion

A special appearance must be by sworn motion.

If a motion has been filed without being sworn, some curative amendments exist. This includes a separate affidavit which verifies jurisdictional facts and is filed at least seven days before a hearing.

Though amendments can cure defects without deadline, not all defects are curable. As such, it’s important to ensure a motion for special appearance is meticulously prepared in accordance to Rule 120a, that it provides sufficient notice to challenge jurisdiction, and is filed in a timely manner.

Removal and Remand to Federal Court

In addition to assisting clients and counsel with special appearances, our team can also provide support for removal, or the process of transferring a case from state to federal court as provided by federal statute: 28 U.S.C. §§ 1441-1453; Fed. R. Civ. Pro. 81(c).

While the right of removing a case initially filed in state court to federal court can be a powerful tool for defendants, it must be exercised judiciously and only after careful deliberation by experienced counsel. The particular facts and circumstances surrounding a case, subject matter, published case law, and assigned judge will largely determine whether removal is in a defendant’s best interest.

What Are the Advantages of Removal to Federal Court?

Out-of-state defendants may choose to challenge personal jurisdiction given the time and costs of dealing with litigation in another state, the lack of familiarity with another state’s laws and procedures, or because they find the law in their preferred jurisdiction more advantageous for the matter at hand. Removing a case may also provide peace of mind to an out-of-state defendant concerned about local prejudice or bias.

While every case is unique, there are some general situations where it may be advantageous to exercise right to removal. Examples include:

  • The case concerns subject matter with which Federal judges are more likely to have experience;
  • Applicable case law is more developed and robust in federal court;
  • Greater efficiency in litigation (i.e. a particular case can be resolved faster in federal court, thereby reducing costs of litigation and business interruption);
  • Greater diversity of citizenship (i.e. federal juries pull from a larger jurisdiction and demographic than state courts).

Hendershot Cowart P.C.: Proven Counsel. Proven Results

The practice of special appearance is complicated by Texas’ strict rules of procedure. For out-of-state defendants and counsel, ensuring compliance with procedural rules and evaluating available options with localized insight is essential to structuring the foundation for a successful outcome.

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