Rule 96.No Discontinuance

Last verified June 28, 2026

In one sentenceRule 96 stops a plaintiff from using a discontinuance of its own suit to cut off a defendant's pending counterclaim for affirmative relief.

Full Text of Rule 96

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Where the defendant has filed a counterclaim seeking affirmative relief, the plaintiff shall not be permitted by a discontinuance of his suit, to prejudice the right of the defendant to be heard on such counterclaim.

End

Plain-English Summary

Rule 96 protects a defendant who has gone on the offensive. When the defendant has filed a counterclaim seeking affirmative relief, the plaintiff cannot, by discontinuing its own suit, prejudice the defendant's right to be heard on that counterclaim. The counterclaim survives the plaintiff's exit.

Frequently Asked Questions

Can a plaintiff dismiss to defeat a counterclaim in Texas?

No. Under Rule 96, a plaintiff's discontinuance cannot prejudice the defendant's right to be heard on a pending counterclaim for affirmative relief.

What kind of counterclaim does Rule 96 protect in Texas?

One seeking affirmative relief — a claim asking the court to award the defendant something, not one that only defends against the plaintiff's claim.

Can a plaintiff's nonsuit end a Texas case entirely?

Not if the defendant has a pending counterclaim for affirmative relief. Rule 96 keeps that counterclaim alive even after the plaintiff discontinues its own suit.

Source & verification. Rule text and the official Notes and Comments are reproduced verbatim from the Texas Rules of Civil Procedure (Tex. R. Civ. P. 96), published by the Texas Judicial Branch (txcourts.gov). Promulgated by the Supreme Court of Texas. The plain-English summary is original and draws on official sources. Last verified June 28, 2026. · Official source

Also known as: no discontinuancenonsuit and counterclaimaffirmative reliefcounterclaim survives nonsuitTRCP 96