Plea to the Jurisdiction
(TX)

Summary

This template may be used by a defendant to challenge the subject matter jurisdiction of a Texas state court in a civil action. This template includes practical guidance, drafting notes, and alternate clauses. A defendant may challenge subject matter jurisdiction by filing what is known as a "plea to the jurisdiction." A plea to the jurisdiction seeks dismissal of the case on the ground that the court lacks subject matter jurisdiction over the action. See Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000); Texas Dep't of Transp. v. Jones, 8 S.W.3d 636, 638 (Tex. 1999). For example, a plea to the jurisdiction may be used to allege that: • The plaintiff has included a claim that is restricted by a statute or constitutional provision to the exclusive jurisdiction of another court. See, e.g., Speer v. Stover, 685 S.W.2d 22, 23 (Tex. 1985) (case concerned matters incident to estate, over which county court had exclusive jurisdiction); Logan v. Armstrong, 694 S.W.2d 68, 71–72 (Tex. App.—Corpus Christi 1985, no writ) (land commissioner was authorized by statute to decide matter); Baker v. Seaver, 567 S.W.2d 854, 856–57 (Tex. Civ. App.—Eastland 1978, no writ) (petition to modify custody and support orders in court without continuing jurisdiction over children may be challenged by plea to jurisdiction). • The plaintiff lacks standing to bring the claim asserted. See Texas Ass'n of Business v. Tex. Air Control Bd., 852 S.W.2d 440, 443–44 (Tex. 1993) (discussion of constitutional bases of standing requirement); see also Bowles v. Wade, 913 S.W.2d 644, 647 (Tex. App.—Dallas 1995, pet. denied) (statutory standing requirements). • The plaintiff failed to exhaust administrative remedies before filing suit. See, e.g., Subaru of Am. v. David McDavid Nissan, 84 S.W.3d 212, 221 (Tex. 2002); Kshatrya v. Texas Workforce Com'n, 97 S.W.3d 825, 831 (Tex. App.—Dallas 2003, no pet.). • The defendant has sovereign immunity from suit for the plaintiff's claim. See Mission Indep. School Dist. v. Garcia, 372 S.W.3d 629, 636 (Tex. 2012); Texas Dep't of Parks and Wildlife v. Miranda, 133 S.W.3d 217, 225–26 (Tex. 2004). A plea to the jurisdiction may be included in the defendant's original answer (see Tex. R. Civ. P. 85) or it may be presented in a separate instrument, as in this template. For a template answer into which a plea to the jurisdiction may be inserted, see Answer including Counterclaims and Crossclaims (TX). Failure to include the plea to the jurisdiction in the original answer does not waive the jurisdictional challenge, since objections to subject matter jurisdiction may not be waived by the parties and may even be raised for the first time after judgment and on appeal. Tex. Ass'n of Business, 852 S.W.2d at 445 (standing is component of subject matter jurisdiction that can be raised for first time on appeal); Pan Am. Life Ins. Co. v. Erbauer Constr. Co., 805 S.W.2d 395, 395–96 (Tex. 1991). Nevertheless, in the interests of saving time and resources, you should raise any subject matter jurisdiction challenge at the earliest opportunity. Note that if the defendant also wishes to challenge personal jurisdiction by a special appearance motion or venue by a motion to transfer venue (so-called "due order" pleas), those motions must be filed before or concurrently with the answer or any other plea, pleading, or motion (including a plea to the jurisdiction) to avoid waiver. See Tex. R. Civ. P. 86(1), 120a(1), (2). Due order pleas may, however, be combined with other objections and defenses and included as part of the answer. The due order pleas are not waived by being included with other matters. See Tex. R. Civ. P. 86(2), 120a(1). If due order pleas are included as part of the original answer or other first responsive pleading, the due order pleas should be pleaded first and, if both are included, in their proper order (i.e., special appearance motion followed by motion to transfer venue). Moreover, the cautious practitioner will make the other pleas "subject to" the due order pleas, although a due order plea is not waived merely because a pleading or motion lacks an express statement to this effect. See Dawson-Austin v. Austin, 968 S.W.2d 319, 322–23 (Tex. 1998) (special appearance was not waived when defendant filed motion to quash service, plea to the jurisdiction, and plea in abatement, all in same instrument with special appearance and following it, but not expressly made subject to special appearance motion). If filed separately, a plea to the jurisdiction generally is structured like a motion. For general format and procedure for motions, see Motion Practice: Making a Motion (TX). See also Formatting Rules in Court Checklist (TX). Like other pleadings, a plea to the jurisdiction should be signed by the defendant's attorney. See Tex. R. Civ. P. 57. But a plea to the jurisdiction need not be verified. See Pakdimounivong v. City of Arlington, 219 S.W.3d 401, 413 (Tex. App.—Fort Worth 2006, pet. denied); Ab-Tex Beverage v. Angelo State University, 96 S.W.3d 683, 688 (Tex. App.—Austin 2003, no pet.). For discussion of subject matter jurisdiction of Texas state courts, see Subject Matter Jurisdiction (TX). For a full listing of key content covering fundamental civil litigation tasks throughout a Texas state court litigation lifecycle, see Civil Litigation Fundamentals Resource Kit (TX).