Lack of Ripeness Does Not Mean "No Basis In Fact or Law": Limiting Texas Rule of Civil Procedure 91a

Is a Motion to Dismiss pursuant to Texas Rule of Civil Procedure 91a the proper vehicle through which to challenge a court’s subject matter jurisdiction based on lack of ripeness? Normally, a Plea to the Jurisdiction is the appropriate procedure to challenge a court’s subject matter jurisdiction. See Hosner v. Young, 1 Tex. 765, 769 (Tex. 1846); Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 225-226 (Tex. 2004). Yet, lack of ripeness has served as a ground for dismissal under Rule 91a in Texas courts. See In re Essex Ins. Co., 450 S.W.3d 524, 525-28 (Tex. 2014); Auzenne v. Great Lakes Reinsurance, PLC, 497 S.W.3d 35, 38 (Tex. App.—Houston [14th Dist.] 2016, no pet.) (lack of ripeness).

Subject matter jurisdiction speaks to a court’s power to adjudicate a matter. Courts can raise subject matter jurisdiction concerns sua sponte, and are, in fact, instructed to do so. See Miranda, 133 S.W.3d at 225-26 (“The trial court must determine at its earliest opportunity whether it has the constitutional or statutory authority to decide the case before allowing the litigation to proceed.”). If a trial court determines that it lacks subject matter jurisdiction, it must dismiss the matter.

         Whereas subject matter jurisdiction speaks specifically to a court’s power to adjudicate a matter, Rule 91a speaks to whether a litigant alleged a claim with a basis in fact or law, that is, the Rule speaks to a claim’s plausibility. See e.g., Tex. R. Civ. P. 91a.1; City of Dallas v. Sanchez, 492 S.W.3d 722, 724 (Tex. 2016); Daniel R. Correa, A Reasonable Person Believes What Is Plausible: City of Dallas v. Sanchez and Rule 91a’s Factual Plausibility Standard, 49 Tex. Tech. L. Rev. 721 (2017). “A cause of action has no basis in law if the allegations, taken as true, together with inferences reasonably drawn from them, do not entitle the claimant to the relief sought. A cause of action has no basis in fact if no reasonable person could believe the facts pleaded.” Id.

        Ripeness does not appear to fall neatly into either a no basis in law or fact category.  The ripeness doctrine aims to avoid premature litigation. “A case is not ripe when its resolution depends upon events that have not yet come to pass.” See Robinson v. Parker, 353 S.W.3d 753, 755 (Tex. 2011). When lack of ripeness is the issue, the problem is not whether a reasonable person could believe the facts pleaded, but with whether the facts pleaded and believed by a reasonable person state a non-speculative injury. Likewise, the problem raised by ripeness concerns is not whether the allegations entitle the claimant to the relief sought without qualification, but with whether the allegations plausibly entitle the claimant to the relief sought at this time. Rule 91a was meant to address matters that could never come to fruition in fact or existing law.

            Consider also that the Federal Rules of Civil Procedure distinguish between a litigant’s failure to state a claim upon which relief can be granted and lack of subject matter jurisdiction. See Fed. R. Civ. P. 12(b)(1), (6). Federal Civil Procedure Rule 12(b)(6) directly compares to Texas Civil Procedure 91a. Under the federal rule, a motion to dismiss for failure to state a claim upon which relief may be granted attacks the merits of the claim; whereas, a motion to dismiss for lack of subject matter jurisdiction challenges the court’s power to hear the case. See Ramming v. United States, 281 F.3d 158, 161-62 (5th Cir. 2001). Under Rule 12(b)(6), “a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” See Conley v. Gibson, 355 U.S. 41, 45-46 (1957).

         Texas courts would do well to adhere to the federal model with respect to motions to dismiss. When a party wishes to move the court to dismiss a matter for failure to state a legally cognizable claim, Texas Civil Procedure Rule 91a is the appropriate vehicle. When a party wishes to move the court to dismiss a matter because the court lacks power to hear it, specifically, here, because the action is brought too soon, a Plea to the Jurisdiction is appropriate. Remember, subject matter jurisdiction concerns do not center on whether a litigant raised a legally cognizable claim, but on whether the litigant is the right party to bring the claim (standing), or whether the claim was brought too soon (ripeness), or whether the claim was brought to late (mootness), or whether the claim should be decided by another branch of government (political questions). Though this blog did not address standing, mootness, or political questions, the reasoning herein provides some guidance on how to think about the problem concerning Rule 91a as a vehicle to dismiss matters based on lack of subject matter jurisdiction.