Texas summary judgment under the rewritten Rule 166a: every deadline now runs forward from filing

Texas rewrote Rule 166a, and the change is structural rather than cosmetic. Under the old rule the calendar ran backward from the hearing. Under the current rule it runs forward from filing. Anything written before the amendment calendars the wrong dates.

The dates

Both the response and reply periods yield to leave of court or agreement of the parties. The hearing window does not.

The motion's title is now part of the rule

Rule 166a(b)(2)(A):

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.

Mandatory, but not fatal — the rule requires the title and then removes the sanction for getting it wrong. Read together, it is a docketing requirement rather than a trap.

Rule 166a(b)(2)(B) adds a second title requirement that is consequential:

If a movant requests an oral hearing on the motion, the request must appear in the title of the motion.

And Rule 166a(d)(2) mirrors it for the other side: if the nonmovant requests a hearing, "the request must appear in the title of the response."

A hearing request buried in the body of the brief is not a request under this rule.

The two motions are now defined

Rule 166a(a) gives Texas's two summary-judgment devices formal definitions for the first time:

(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.

Rule 166a(b)(1) confirms a motion may combine both.

What each must contain. A traditional motion "must state the specific grounds in support of the motion and produce any evidence in support" — 166a(b)(2)(C). A no-evidence motion "must state the elements of the claim or defense as to which there is no evidence" — 166a(b)(2)(D).

When each may be filed — 166a(b)(3). A traditional motion may be filed "at any time after the nonmovant has appeared or answered," unless a court order sets a deadline. A no-evidence motion may be filed "after adequate time for discovery."

The clerk has duties now

Rule 166a(c):

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.

This is new machinery. The setting is the court's responsibility, triggered by filing — a movant no longer has to obtain a setting to start the clock, because the response deadline runs from filing regardless.

Responding

Rule 166a(d)(1): except on leave of court or agreement of the parties, "the nonmovant must file a response within 21 days after the motion is filed."

Rule 166a(d)(2): "The nonmovant must produce any evidence in support of the response."

If you need more time or more discovery — 166a(d)(3):

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.

Three possible outcomes, and the second — denial without prejudice — is more generous than the federal Rule 56(d) menu.

Replying, and what a reply may not do

Rule 166a(e)(1): the movant may file a reply, and except on leave or agreement must file it "within 7 days after the response is filed."

Rule 166a(e)(2):

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.

The general bar on new grounds is familiar. The exception is narrow and specific — it covers the situation where the nonmovant amends after the motion, and only where a ground already asserted reaches a common element.

The hearing window, and the proposed order

Rule 166a(g)(1): 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 it within 60 days after filing, or 90 days if the court's docket so requires, on a showing of good cause, or if the movant agrees.

Rule 166a(g)(2) permits resetting within those time frames.

Rule 166a(g)(3): "The parties must each submit a proposed order before the hearing or submission date." Both sides — not just the movant.

Rule 166a(g)(4): "No oral testimony will be received at a hearing on a summary judgment motion."

Rule 166a(g)(5): the court must record in the docket the date the motion was heard or submitted.

Withdrawal — 166a(f): any withdrawal "must be filed and must identify the date the motion was filed."

The standards

Rule 166a(h)(1): "No judgment will be granted except on the grounds stated under (b)(2)(C) and (b)(2)(D)." Grounds not in the motion cannot support the judgment.

Rule 166a(h)(2) — traditional: the court must grant it 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.

Rule 166a(h)(3) — no-evidence: the court must grant it "unless the respondent produces summary judgment evidence raising a genuine issue of material fact."

Rule 166a(h)(4): if the court doesn't grant the relief requested, it "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."

A ruling deadline, which most systems lack

Rule 166a(i):

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.

Neither the federal rules nor California, New York, Ohio, Washington, Pennsylvania or Georgia impose a deadline on the court's ruling. Texas now does.

Evidence

Rule 166a(j)(1) lists what evidence may include: deposition transcripts; an opposing party's pleadings, interrogatory answers, admissions and other discovery responses; affidavits and declarations; stipulations; and other authenticated evidence.

Rule 166a(j)(2): evidence may be produced "by making a specific reference to it and where it may be found in the court's file."

Discovery not on file — 166a(j)(3). Discovery not on file may be used if copies, appendices, or a notice containing specific references are filed with a statement of intent to use the specified discovery as summary judgment evidence — at the time the motion is filed if it supports the motion, or at the time the response is filed if it opposes.

Affidavits — 166a(j)(4). Made on personal knowledge, setting out admissible facts, showing the affiant is competent to testify. A document referred to must be attached and sworn or certified. And:

Defects in the form of an affidavit or declaration or its attachments will not be grounds for reversal unless specifically pointed out by objection by an opposing party with opportunity, but refusal, to amend.

Bad faith — 166a(j)(5) allows expenses and fees, contempt or other sanctions.

Late-filed evidence — 166a(j)(6): "The court may consider late-filed evidence if the court indicates its consideration in the record."

Old habits that now produce wrong dates

A short checklist

1. Title the motion correctly, and put any oral-hearing request in the title.
2. Calendar 21 days from filing for the response and 7 days from the response for the reply.
3. Expect a setting between day 35 and day 60 (or 90), arranged by the court, not by you.
4. File a statement of intent with any discovery not already on file — at the time the motion or response is filed.
5. If you need discovery to respond, file the 166a(d)(3) affidavit rather than simply asking for more time.
6. Submit a proposed order — the rule requires one from each party.
7. Object to form defects specifically, and give the other side a chance to amend; otherwise the defect isn't preserved.

Where these rules live

• Tex. R. Civ. P. 21 — Filing and Serving Pleadings and Motions
• Tex. R. Civ. P. 166 — Pretrial Conference
• Tex. R. Civ. P. 166a — Summary Judgment
• Tex. R. Civ. P. 190 — Discovery Limitations
• Tex. R. Civ. P. 329b — Time for Filing Motions

For forms and step-by-step help, the Texas courts point to TexasLawHelp.org. This page explains what the rule says. It isn't legal advice, and what counts as "adequate time for discovery" before a no-evidence motion is decided under Texas case law this site doesn't cover.