Understanding Dismissals With and Without Prejudice in Texas Law

Understanding Texas Dismissals

When a court case ends, the result is either a judgment or a dismissal. In a judgment, the court makes decisions about the rights and liabilities of the parties in the legal case. In a dismissal, the court terminates the case without a trial or final judgment on the merits of the case. Here, we focus on the different types of dismissals and their implications.

Types of Dismissals

Dismissals can be voluntary or involuntary:

  1. Voluntary Dismissal: Occurs when the plaintiff decides to withdraw their case from the court.
  2. Involuntary Dismissal: Happens when the court dismisses the case at the defendant’s request or on its own motion due to various reasons such as lack of jurisdiction, failure to pursue the case, or insufficient legal claims.

Dismissal With Prejudice vs. Without Prejudice

  1. Dismissal Without Prejudice: Allows the plaintiff to refile the case in the future, assuming no statute of limitations has elapsed.
  2. Dismissal With Prejudice: This is a final judgment that prevents the plaintiff from bringing the same claim or cause of action against the same defendant in the future. It effectively closes the matter permanently.

When Does This Situation Present?

A plaintiff might have a legitimate claim but decides not to move forward and wants to withdraw their claim. In this scenario, the defendant may request the court to order the plaintiff to pay their attorney fees. Texas Rule of Civil Procedure 162 allows a plaintiff to voluntarily dismiss their case without prejudice any time before presenting all evidence (other than rebuttal).

Legal Considerations and Attorney Fees

The rule does not authorize automatic payment of the defendant’s legal fees. However, the defendant may be entitled to them in certain circumstances:

  1. If a contract includes a clause allowing recovery of attorney’s fees by the prevailing party.
  2. Certain statutory provisions allow for the recovery of attorney’s fees (Texas Practice and Remedies Code, Chapters 10 and 38).
  3. Rule 13 of the Texas Rules of Civil Procedure allows a defendant to seek sanctions, including attorney’s fees, for frivolous or bad faith lawsuits.

The defendant must file a motion requesting the court order the plaintiff to pay the attorney fees and explain why the request should be awarded.

Practical Considerations

When contemplating voluntary dismissal, plaintiffs might be tempted to agree to a dismissal with prejudice to avoid paying the defendant’s attorney fees. However, this decision might have long-term consequences if circumstances change in the future. Dismissing a case without prejudice preserves the plaintiff's right to refile the case if needed.

Real-Life Example

A plaintiff brought a lawsuit regarding a recorded easement that had been in place for more than 50 years. During litigation, the plaintiff decided to voluntarily dismiss the case. The defendant agreed only if the dismissal was with prejudice. The plaintiff agreed, but the home sale fell through, and the plaintiff was left with no judicial avenue to resolve the easement issue.


Understanding the implications of dismissing a case with or without prejudice is crucial. Plaintiffs should consider the long-term effects and consult with legal counsel to make informed decisions.

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