Tex. R. Civ. P. 166a

SUMMARY JUDGMENT

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RULE 166a. SUMMARY JUDGMENT
(a) Definitions.
(1) A “traditional” motion for summary judgment is a motion that seeks to establish
that no genuine issue of material fact exists as to a claim or defense and that the
movant is entitled to judgment as a matter of law.
(2) A “no-evidence” motion for summary judgment is a motion that seeks to establish
that there is no evidence of an essential element of a claim or defense on which the
nonmovant would have the burden of proof at trial.
(b) Motion.
(1) In General. A party may move for summary judgment on a claim or defense. A
motion may combine both traditional and no-evidence motions.
(2) Contents.
(A) Title. A motion for summary judgment must be titled “Traditional Motion
for Summary Judgment,” “No-Evidence Motion for Summary Judgment,”
or “Combined Motion for Traditional and No-Evidence Summary
Judgment.” An absent or incorrect title is not grounds for denying the
motion.
(B) Hearing Request. If a movant requests an oral hearing on the motion, the
request must appear in the title of the motion.
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(C) Traditional Motion. A traditional motion must state the specific grounds in
support of the motion and produce any evidence in support.
(D) No-Evidence Motion. A no-evidence motion must state the elements of the
claim or defense as to which there is no evidence.
(3) Time to File.
(A) Traditional Motion. Unless a deadline for filing is set by court order, a party
may file a traditional motion at any time after the nonmovant has appeared
or answered.
(B) No-Evidence Motion. A party may file a no-evidence motion after adequate
time for discovery.
(c) Clerk and Court Duties Upon Filing. Upon the motion’s filing, the clerk must immediately
call the motion to the court’s attention. The court must set the motion for an oral hearing
or submission without an oral hearing according to the deadlines in this rule. The clerk
must send notice to the parties of the submission or hearing date.
(d) Response.
(1) Time to File. Except on leave of court or agreement of the parties, the nonmovant
must file a response within 21 days after the motion is filed.
(2) Contents. The nonmovant must produce any evidence in support of the response. If
the nonmovant requests a hearing on the motion, the request must appear in the title
of the response.
(3) When Evidence Unavailable. If the nonmovant needs additional time to secure
evidence in support of the response, the nonmovant must file an affidavit or
declaration specifying the reasons why the nonmovant cannot present facts
essential to justify its opposition. The court may extend the time to file the response,
deny the motion without prejudice to permit additional discovery, or issue another
appropriate order.
(e) Reply.
(1) Time to File. The movant may file a reply. Except on leave of court or agreement
of the parties, the movant must file the reply within 7 days after the response is
filed.
(2) Contents. A reply must not raise new or independent summary judgment grounds
but may address a new or amended pleading filed after the motion if a ground
initially asserted in the motion negates an element that is common to a claim or
defense asserted in the new or amended pleading.
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(f) Withdrawal. Any withdrawal of the motion must be filed and must identify the date the
motion was filed.
(g) Hearing or Submission.
(1) Timing. A hearing or submission date must not be set within 35 days after the
motion’s filing. Unless the motion is withdrawn, the court must set the motion for
a hearing or submission within:
(A) 60 days after the motion’s filing; or
(B) 90 days after the motion’s filing:
(i) if the court’s docket so requires;
(ii) on a showing of good cause; or
(iii) if the movant agrees.
(2) Reset Permitted. The court may reset a hearing or submission date within the time
frames specified in this rule.
(3) Proposed Order. The parties must each submit a proposed order before the hearing
or submission date.
(4) No Oral Testimony. No oral testimony will be received at a hearing on a summary
judgment motion.
(5) Docket. The court must record in the docket the date the motion was heard or
submitted.
(h) Standards.
(1) Grounds. No judgment will be granted except on the grounds stated under (b)(2)(C)
and (b)(2)(D).
(2) Traditional Motion. The court must grant a traditional motion for summary
judgment if the movant shows that, except as to the amount of damages, there is no
genuine issue as to any material fact and the movant is entitled to judgment as a
matter of law on the issues expressly set out in the motion.
(3) No-Evidence Motion. The court must grant a no-evidence motion unless the
respondent produces summary judgment evidence raising a genuine issue of
material fact.
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(4) Requested Relief Not Granted. If the court does not grant the relief requested by
the motion, the court may ascertain what material fact issues exist, issue an order
specifying the facts that are established as a matter of law, and direct any other
appropriate proceedings.
(i) Ruling. The court must sign a written ruling on the motion, file it with the clerk, and
provide the ruling to the parties within 90 days after the hearing or submission date.
(j) Evidence Produced.
(1) Types of Evidence. Evidence may include:
(A) deposition transcripts;
(B) an opposing party’s pleadings, interrogatory answers, admissions, and other
discovery responses;
(C) affidavits and declarations;
(D) stipulations; and
(E) other authenticated evidence.
(2) Evidence Produced by Reference. Evidence may be produced by making a specific
reference to it and where it may be found in the court’s file.
(3) Use of Discovery Not Otherwise on File. Discovery not on file may be used as
summary judgment evidence if copies of the material, appendices containing the
evidence, or a notice containing specific references to the discovery or specific
references to other instruments are filed with a statement of intent to use the
specified discovery as summary judgment evidence:
(A) at the time the motion is filed, if the evidence is to be used to support the
summary judgment; or
(B) at the time the response is filed, if the evidence is to be used to oppose the
summary judgment.
(4) Form of Affidavit or Declaration; Further Testimony. An affidavit or declaration
used to support or oppose a motion must be made on personal knowledge, set out
facts that would be admissible in evidence, and show that the affiant or declarant is
competent to testify to the matters stated. A document referred to in an affidavit or
declaration must be attached and either sworn or certified. The court may permit an
affidavit or declaration to be supplemented or opposed by deposition or by another
affidavit or declaration. Defects in the form of an affidavit or declaration or its
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attachments will not be grounds for reversal unless specifically pointed out by
objection by an opposing party with opportunity, but refusal, to amend.
(5) Affidavit or Declaration Submitted in Bad Faith. If satisfied that an affidavit or
declaration is submitted in bad faith or solely for delay, the court—after notice and
a reasonable time to respond—may order the submitting party to pay the other party
the reasonable expenses, including attorney’s fees, it incurred as a result. An
offending party or attorney may also be held in contempt or subject to other
appropriate sanctions.
(6) Late-Filed Evidence. The court may consider late-filed evidence if the court
indicates its consideration in the record.
Notes and Comments
Comment to 1990 change: This amendment provides a mechanism for using previously
non-filed discovery in summary judgment practice. Such proofs must all be filed in advance of the
hearing in accordance with Rule 166a. Paragraphs (d) through (g) are renumbered (e) through (h).
Comment to 1997 change: This comment is intended to inform the construction and
application of the rule. Paragraph (i) authorizes a motion for summary judgment based on the
assertion that, after adequate opportunity for discovery, there is no evidence to support one or more
specified elements of an adverse party’s claim or defense. A discovery period set by pretrial order
should be adequate opportunity for discovery unless there is a showing to the contrary, and
ordinarily a motion under paragraph (i) would be permitted after the period but not before. The
motion must be specific in challenging the evidentiary support for an element of a claim or defense;
paragraph (i) does not authorize conclusory motions or general no-evidence challenges to an
opponent’s case. Paragraph (i) does not apply to ordinary motions for summary judgment under
paragraphs (a) or (b), in which the movant must prove it is entitled to judgment by establishing
each element of its own claim or defense as a matter of law or by negating an element of the
respondent’s claim or defense as a matter of law. To defeat a motion made under paragraph (i),
the respondent is not required to marshal its proof; its response need only point out evidence that
raises a fact issue on the challenged elements. The existing rules continue to govern the general
requirements of summary judgment practice. A motion under paragraph (i) is subject to sanctions
provided by existing law (Tex Civ. Prac. & Rem. Code §§ 9.001-10.006) and rule (Tex R. Civ. P.
13). The denial of a motion under paragraph (i) is no more reviewable by appeal or mandamus
than the denial of a motion under paragraph (c).
Comment to 2026 change: Rule 166a is rewritten to implement section 23.303 of the
Texas Government Code and to modernize the rule. Other than the deadline changes, Rule 166a’s
rewrite is not intended to substantively change the law.
[RULE 166b. Repealed effective January 1, 1999]
[RULE 166c. Repealed effective January 1, 1999]
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