Case Dealing With ''Failure to State a Cause of Action'' In Texas
In Graef v. City of Galveston, 538 S.W.2d 816 (Tex. App.--Houston [14th Dist.] 1976, writ dism'd), a group of Galveston citizens sued to enjoin the city from converting certain piers into cargo docks.
The trial court granted the city's motion to dismiss for failure to state a cause of action.
On review, the court held:
"Only after a party has been given an opportunity to amend after special exceptions have been sustained may the case be dismissed for failure to state a cause of action." Id. at 817 (quoting Texas Department of Corrections v. Herring, 513 S.W.2d 6, 10 (Tex. Supp. 1974)).
The court then determined that "there was no action by the trial court here sustaining special exceptions. Consequently, the order granting a dismissal for failure to state a cause of action must be reversed." Graef, 538 S.W.2d at 818.