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Can a Rule 91a motion to dismiss be filed subject to a motion to transfer venue?

Direct Answer: Yes. Under Tex. R. Civ. P. 91a.8, a defendant may file a Rule 91a motion to dismiss even if a motion to transfer venue is pending or will be filed. Doing so does not waive the right to challenge venue or personal jurisdiction.

Legal Framework

Rule 91a.8 — Effect on Venue and Personal Jurisdiction
Tex. R. Civ. P. 91a.8 explicitly provides:

“This rule is not an exception to the pleading requirements of Rules 86 and 120a, but a party does not, by filing a motion to dismiss pursuant to this rule or obtaining a ruling on it, waive a special appearance or a motion to transfer venue.”[1][2]

Analysis (IRAC)

Issue: Whether a defendant who intends to file or has filed a motion to transfer venue under Tex. R. Civ. P. 86 can also file a motion to dismiss under Tex. R. Civ. P. 91a without waiving the venue challenge.

Rule: Under Tex. R. Civ. P. 86, a motion to transfer venue must be filed before other pleadings or motions that seek affirmative relief. However, Tex. R. Civ. P. 91a.8 specifically carves out an exception for Rule 91a motions, clarifying that such a motion neither constitutes a general appearance nor waives any prior or contemporaneous venue objections.

Application: Because of Tex. R. Civ. P. 91a.8’s explicit language, a defendant may safely file a 91a motion even while a venue motion is pending. The defendant is considered to be submitting to the court’s jurisdiction only for purposes of the motion to dismiss, and not generally for venue or personal jurisdiction purposes.[1]

Conclusion: A Rule 91a motion to dismiss may be filed subject to—before, after, or concurrently with—a motion to transfer venue, without waiving the venue objection. The court retains discretion to determine the order in which these motions are heard.

Practical Note for Texas Practitioners

Although permissible, practitioners often request abatement of the 91a hearing until after the venue issue is resolved to avoid unnecessary attorney’s fees or rulings from an improper venue court.

Sources & References

  1. Tex. R. Civ. P. 91a.8 (2013)
  2. Texas Rules of Civil Procedure (Aug. 31, 2025)

Related Questions

If both a Rule 91a motion and a motion to transfer venue are filed, which should the court hear first?What actions might waive a defendant’s right to challenge venue under Texas Rule 86?Can a defendant file a Rule 91a motion without waiving a Rule 120a special appearance?How are attorney’s fees calculated when a Rule 91a motion is granted in Texas courts?
Can a Rule 91a motion to dismiss be filed subject to a motion to transfer venue? | OpenCase