Chapter 28-3 Pleas in Abatement

• Jurisdiction: United States

28-3 Pleas in Abatement

A plea in abatement is "a special plea which establishes a matter that may be properly urged to defeat the action or suspend the right to prosecute it."³⁰ While special exceptions are used to point out deficiencies that appear in a pleading, a plea in abatement is used to raise a defect that exists outside the pleading it attacks.³¹ Special exceptions raising evidence outside the pleadings are impermissible "speaking demurrers."³²

A plea in abatement may not be used to challenge personal jurisdiction or venue; but, otherwise, may be used to raise any matter not in the petition that provides a reason to abate the proceedings.³³ A plea in abatement is used, for example, to raise a party's lack of standing,³⁴ to challenge a plaintiff's legal capacity to sue,³⁵ to show that a defendant is not liable in the capacity in which he is sued,³⁶ and the pendency of another action involving the same parties and claim.³⁷

A plea in abatement may be contained in a separate instrument or be made a part of the answer.³⁸ Pleas in abatement should also be verified.³⁹

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Notes:

^[30] Augustine v. Nusom, 671 S.W.2d 112, 114 (Tex. App.—Houston [14th. Dist.] 1984, writ ref'd n.r.e.).

^[31] Augustine v. Nusom, 671 S.W.2d 112, 114 (Tex. App.—Houston [14th. Dist.] 1984, writ ref'd n.r.e.).

^[32] Augustine v. Nusom, 671 S.W.2d 112, 114 (Tex. App.—Houston [14th. Dist.] 1984, writ ref'd n.r.e.).

^[33] McDonald, Tex. Civ. Prac., Vol. II, 159 (1982) ("Any matter of fact arising outside the face of the petition, which challenges neither the venue of the action nor the jurisdiction of the court, but which presents a reason why the pending suit should be suspended or dismissed, may form the subject of a plea in abatement.").

^[34] Though standing is perhaps more properly raised in a plea to the court's jurisdiction, pleas in abatement have also been used. See, e.g., Texas Indus. Traffic League v. R.R. Comm'n Tex., 633 S.W.2d 821 (Tex. 1982), overruled on other grounds by Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440 (Tex. 1993); Austin Neighborhoods Council v. Bd. of Adjustment of City of Austin, 644 S.W.2d 560, 564 n.17 (Tex. App.—Austin 1982, writ ref'd n.r.e.).

^[35] M & M Constr. Co. v. Great Am. Ins. Co., 747 S.W.2d 552, 554 (Tex. App.—Corpus 1988, no writ).

^[36] Flowers v. Steelcraft Corp., 406 S.W.2d 199, 199 (Tex. 1966).

^[37] Wyatt v. Shaw Plumbing Co., 760 S.W.2d 245 (Tex. 1988).

^[38] Tex. R. Civ. P. 85.

^[39] Tex. R. Civ. P. 93; Sparks v. Bolton,...