Chapter 6 — Special Exceptions

Overview

1. Purpose and Procedure. Special exceptions are Texas’s pleading device to challenge defects in the plaintiff’s petition. Unlike a Rule 91a motion, which seeks dismissal of claims with “no basis in law or fact,” special exceptions are designed to force the plaintiff to replead with greater specificity or drop improper claims.

Form of Filing: Special exceptions are not part of the defendant’s answer. They are filed in a separate document captioned “Defendant’s Special Exceptions to Plaintiff’s Original Petition.”

Purpose: To require the plaintiff to amend and cure defects. If the plaintiff fails or refuses, the court may strike the defective pleading or dismiss the claim.

Timing: Special exceptions can be filed after the answer, usually early in the case, and are not bound by Rule 91a’s strict 60-day deadline.

When to Use Special Exceptions vs. Rule 91a

2. Strategic Considerations

  • Rule 91a: Best for knocking out entire causes of action that are legally barred (e.g., social-host liability for adult service; punitive damages claims under the Dram Shop Act; post-Raoger circumstantial evidence cases). Risk: fee-shifting and tight deadlines.
  • Special Exceptions: Best for forcing specific factual pleading of Dram Shop Act elements or striking extraneous theories outside the statute. Safer, since no fee-shifting penalty applies.

3. Integrated Strategy. Use special exceptions when Rule 91a is unavailable or risky. Pair them with Rule 91a and summary judgment:

  1. Special exceptions lock plaintiffs into statutory pleading.
  2. Rule 91a (if timely) dismisses claims that cannot exist as a matter of law.
  3. Summary judgment later attacks the plaintiff’s inability to produce evidence on required elements.

Common Targets in Dram Shop Cases

4. Identification of the Patron

  • Defect: Petition fails to identify the allegedly overserved individual.
  • Why it matters: The statute requires proof that a specific recipient of alcohol was obviously intoxicated and caused harm.
  • Remedy: Special exception demanding the patron’s identity.

Identification of the Server

  • Defect: Petition fails to name the employee/server who provided the alcohol.
  • Why it matters: Crucial for investigating the safe harbor defense (seller training under TABC §106.14).
  • Remedy: Special exception requiring identification of the server(s).

Facts Showing “Obvious Intoxication”

  • Defect: Petition pleads intoxication in conclusory terms only or relies solely on BAC calculations.
  • Why it matters: Under Raoger, plaintiff must plead specific observable signs (slurred speech, unsteady gait, belligerence) apparent at time of service. Courts reject conclusory “was intoxicated” allegations and circumstantial evidence without observational anchors.
  • Remedy: Special exception requiring plaintiff to plead specific facts making intoxication apparent to the provider at the time of service.

Facts Showing Proximate Cause

  • Defect: Petition does not connect intoxication to the injury-causing conduct.
  • Why it matters: Statute requires intoxication to be a proximate cause of the damages.
  • Remedy: Special exception requiring allegations of how intoxication led to the crash or injury.

Improper Theories Outside the Dram Shop Act

  • Defect: Plaintiff pleads negligence, negligent undertaking, premises liability, or other common-law claims.
  • Authority: Tex. Alco. Bev. Code §2.03 — Dram Shop Act is exclusive remedy. See F.F.P. Operating Partners, L.P. v. Duenez, 237 S.W.3d 680 (Tex. 2007)
  • Remedy: Special exception requiring plaintiff to replead solely under the Dram Shop Act or abandon barred claims.

Appellate Treatment

Texas courts consistently uphold trial courts requiring plaintiffs to replead under the Dram Shop Act when extraneous negligence claims are asserted. In several cases, courts have affirmed dismissal where plaintiffs refused or failed to cure defects after special exceptions were sustained.

Drafting & Procedure

5. Document Structure

  • Caption: Defendant’s Special Exceptions to Plaintiff’s Original Petition
  • Structure:
    1. Identify the specific paragraph or count being challenged.
    2. State the legal/factual defect.
    3. Cite statutory or case authority (e.g., Alco. Bev. Code Ch. 2, §2.02(b), §2.03(c), Graff v. Beard, Borneman, Raoger).
    4. Request an order requiring repleading within a set period (7–14 days).

6. Relief Sought. If plaintiff fails to amend, move to strike or dismiss the claim.

Strategic Benefits

7. Case Management

  • Forces plaintiffs to commit to factual specifics early.
  • Exposes fatal gaps (e.g., no evidence of obvious intoxication visible to provider).
  • Creates a record supporting later summary judgment.

Legal Strategy:

  • Narrows case to statutory Dram Shop elements, excluding extraneous claims.
  • Avoids Rule 91a’s fee-shifting risk when issues are factual or curable.