Before a court can decide anything about your case, it has to have the power to decide it at all. That question is litigated first, separately, and frequently on an accelerated timetable.
It is also litigated once. A defendant who answers on the merits before raising it may have given away the argument entirely.
The question the court answers first
Personal jurisdiction over a non-resident. A Texas court’s power over a defendant who does not live here is generally assessed in two steps: whether the Texas long-arm statute reaches the defendant, and whether exercising jurisdiction is consistent with federal constitutional due process. In practice the second step does the work, and it turns on whether the defendant purposefully availed itself of the privilege of conducting activities in Texas.
Specific and general jurisdiction are different arguments. Specific jurisdiction asks whether the claim arises from or relates to the defendant’s own contacts with Texas — a narrow, claim-by-claim inquiry. Those are two routes, not one: the Supreme Court has confirmed a claim can “relate to” a defendant’s forum contacts without a strict cause-and-effect link, though that phrase still has real limits. General jurisdiction asks whether the defendant’s affiliations with Texas are so continuous and systematic as to render it essentially at home here, which for a corporation is ordinarily a much shorter list of places than where it does business. Pleading both without distinguishing them is a common and costly mistake.
Contacts have to be the defendant’s own. Purposeful availment is measured by what the defendant did, not by what a plaintiff or a third party did, and contacts that are random, fortuitous or attenuated do not count. A contract with a Texas resident, standing alone, is ordinarily not enough — what matters is the surrounding conduct: prior negotiations, contemplated future consequences, the terms actually agreed, and the parties’ actual course of dealing.
Fairness is a separate question. Even where sufficient contacts exist, exercising jurisdiction must comport with traditional notions of fair play and substantial justice, assessed against factors including the burden on the defendant, the forum state’s interest, and the plaintiff’s interest in convenient relief. For foreign defendants in particular, that inquiry carries real weight.
Whether you are here, and whether you must stay here. Even a court with power over the parties may not be the right court. Forum-selection clauses, arbitration agreements, transfer of venue, forum non conveniens, dominant-jurisdiction disputes between Texas counties, and parallel proceedings in another state or country each raise the same practical question in a different legal frame — who decides this, and where.
Subject-matter jurisdiction is not the same thing and cannot be waived. A court’s authority over the kind of case, including standing and ripeness and the governmental-immunity questions that arise through a plea to the jurisdiction, can generally be raised at any time and by the court on its own. Personal jurisdiction, by contrast, is a defense that can be lost by inaction.
How the fight is actually conducted
By special appearance, before anything else. In Texas the challenge to personal jurisdiction is made by a sworn special appearance, and the procedure is unforgiving: it must be filed before any other plea, pleading or motion, and a general appearance ordinarily waives it. Getting the sequence wrong at the very start of a case surrenders the defense permanently.
On evidence, not on argument. A special appearance is a contested evidentiary proceeding. The plaintiff generally bears an initial burden to plead allegations bringing the defendant within the long-arm statute; the defendant then bears the burden to negate all bases alleged. Affidavits, contracts, communications, travel and financial records all matter, and jurisdictional discovery is frequently allowed and frequently decisive.
And the ruling is reviewable immediately. Orders granting or denying a special appearance are subject to accelerated interlocutory appeal, which means the question can be resolved before the parties spend years litigating the merits in a court that may have had no power over them. It also means the record made in a short hearing is the record the appellate court will read. We litigate that hearing accordingly, because we are the ones who will argue the appeal. We have taken special-appearance rulings up on accelerated appeal, including as lead appellate counsel. See Appeals & Mandamus.
State court or federal court is a separate fight with its own clock. A defendant sued in Texas state court may be able to remove the case to federal court where the requirements for federal jurisdiction are met — most commonly complete diversity of citizenship with an amount in controversy exceeding the statutory threshold, or a claim arising under federal law. Removal is governed by short deadlines running from service, and the rules restrict removal by a defendant sued in its home state and limit diversity removal after a period has run. A plaintiff who wants to stay in state court litigates that by moving to remand, frequently on the citizenship of a single party. This is decided in the opening weeks of a case and it is not recoverable if missed.
From the plaintiff’s side, this is a drafting and evidence problem. Where we represent the claimant, jurisdiction is planned before filing: which entity to sue, which contacts to plead, which agreements supply consent to a Texas forum, what discovery will be needed if the defense appears, and whether a parallel proceeding elsewhere needs to be anticipated. A case that survives the special appearance on a record assembled in advance is a very different case from one defended improvisationally.
What we do
We handle special appearances and personal-jurisdiction challenges for non-resident individuals and companies, and we establish jurisdiction for claimants suing out-of-state and foreign defendants. We litigate pleas to the jurisdiction, standing and capacity challenges, forum-selection and arbitration-clause enforcement, venue transfer and dominant-jurisdiction disputes, forum non conveniens, and the accelerated appeals that follow those rulings — in Texas state and federal courts, and alongside local counsel where the proceeding is elsewhere.
The practice is led by Shawn A. Johnson, a civil trial and appellate lawyer, licensed CPA, and former law clerk at the Supreme Court of Texas.
Representative results
Petition for writ of certiorari defeated in the Supreme Court of the United States
Successfully defended, as lead counsel, against certiorari review of the Nevada Supreme Court’s finding of personal jurisdiction over a non-resident defendant.
Ralph Lewis v. Power Research, Inc., No. 21-494 (U.S. Mar. 7, 2022).
Special appearances reversed as lead appellate counsel; petition for review defeated
Reversal of orders granting special appearances of defendants residing or incorporated in California, Nevada, and Greece (2020), and successful defense of the petition for review (2021).
Power Research Inc. v. Lewis, No. 14-19-00012-CV, 2020 WL 5200913 (Tex. App.—Houston [14th Dist.] Sept. 1, 2020).
Petition for writ of prohibition defended in the Supreme Court of Nevada
Defended against a petition seeking reversal of an order denying a motion to dismiss for lack of personal jurisdiction.
Lewis v. Second Judicial Dist. Court, 478 P.3d 872 (Nev. Apr. 5, 2021).
Questions we are asked
I was sued in Texas and I have never set foot there. Do I have to appear?
Ignoring the suit is the one option that reliably goes badly — a default judgment entered by a court without jurisdiction still has to be attacked, and that is harder and more expensive than defending properly now. The right response is a special appearance, filed before anything else, supported by evidence.
We signed a contract with a Texas company. Does that alone put us here?
Ordinarily not by itself. Courts look past the existence of the contract to the conduct around it — who solicited whom, where performance occurred, what the agreement says about governing law and forum, and how the parties actually dealt with each other over time. Those facts are developed from the documents.
Our agreement says disputes go to another state. Does that end it?
Frequently, though it is litigated. Forum-selection clauses are commonly enforced, and the fight is usually about scope — whether the clause covers this dispute and these parties — or about whether enforcement would be unreasonable. It is decided early and it is worth raising early.
What happens if we file something else first by mistake?
That is the risk that makes this area unusual. Because the special appearance generally must precede any other plea, pleading or motion, a routine filing made before it — an extension, a motion, an answer — can constitute a general appearance and waive the objection. If you have been served and believe the court lacks power over you, do not file anything until that has been assessed.
Can we take discovery about jurisdiction?
Usually some, and it is often where the issue is actually decided. Jurisdictional discovery is typically limited to the contacts at issue rather than the merits, and it is worth seeking deliberately rather than resisting reflexively — on either side.
If we lose the special appearance, do we have to try the whole case before we can appeal?
No. Rulings on special appearances are subject to accelerated interlocutory appeal, so the question can be reviewed before the merits are litigated. That is one of the reasons the hearing record deserves the attention it is often not given.
We want to sue a foreign company. Can we do it here?
Sometimes, and the analysis begins before the petition is drafted. Which entity in the corporate family is the right defendant, what contacts can be pleaded and proved, whether service abroad is governed by treaty, and whether any judgment obtained will be enforceable where the assets are — those questions are answered together, at the outset, because the answer to the last one sometimes changes the answer to the first.
Results depend on the facts of each matter. Prior results do not guarantee or predict a similar outcome in any future matter.