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Rule 166a. Summary Judgment (2026)

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(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.
(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.

(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.
(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 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.

Amended by order of February 27, 2026, eff. March 1, 2026.

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. 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 rules (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 166a - Notes and Comments amended by order of Aug. 15, 1997, eff. Sept. 1, 1997

Dissenting Opinions

JUSTICE SPECTOR, dissenting.

I agree with most of Justice Baker's dissent to the rule the Court adopts today. Although the Court has made some helpful modifications to the comment, it declines to incorporate the recommendations of its own advisory committee in the rule itself. I write separately, however, because, unlike Justice Baker, I do not agree with the basic concept underlying Rule 166a(i).

As this Court has previously noted, our existing summary judgment "pro­cedure eliminates patently unmeritori­ous cases while giving due regard for the right to a jury determination of disputed fact questions." Casso v. Brand, 776 S.W. 2d 551,557 (Tex. 1989). The Court's adoption of Rule 166a(i) effectively discards a well-developed body of summary judgment law that has been available to guide the bench and bar. Trial judges, who lack the resources available to their federal counterparts, will now be required to resolve many more pre-trial disputes without the benefit of that valuable precedent.

Furthermore, I anticipate that the no-evidence rule adopted today will also increase the need for extensive discovery, adding to already skyrocketing liti­gation costs. In my view, this runs counter to the rule's intended purpose.

Finally, the new rule creates a serious risk that meritorious lawsuits will be summarily dismissed. My eighteen years on the trial bench, as well as my experience on this Court, have left me convinced that truly frivolous cases are relatively rare and are readily disposed of under the existing rule. I do not believe that any marginal benefit of the new rule in these exceptional cases out­weighs the constitutional rights of aggrieved citizens to seek redress. See Tex. Const. art. I, § 15; art. V, § 10. Accordingly, I dissent.

JUSTICE BAKER, dissenting.

I agree with the basic concept of a no-evidence motion for summary judgment. However, I cannot agree with the rule that the Court adopts today. I am concerned that the Court ignores its own Supreme Court Advisory Committee's recommendations and promulgates a rule of its own choosing. In doing so, the Court eliminates the balance, fairness and safeguards the Committee's recom­mendations provide. Consequently, I respectfully dissent.

The Advisory Committee's Recommendations - The Court's Rule

The Supreme Court Advisory Committee consists of trial and appellate judges and seasoned practitioners on both sides of the docket - all appointed by this Court. After debate over a period of months, that committee made four substantive recommendations for the proposed no-evidence summary judgment rule to the Court. They are:

That a party may file a no-evidence summary judgment motion "(1) after expiration of an applicable discovery period, or (2) if there is no applicable discovery period, after a period set by the Court."

That a party filing a no-evidence summary judgment motion must file a "certificate that the movant's attorney has reviewed the discovery and that, in the attorney's opinion, the discovery reveals no evidence to support the specified elements."

That to raise a material fact issue, a respondent to a no-evidence summary judgment must produce "summary judgment evidence or discovery product or other material that can be reduced to summary judgment evidence."

That the rule provide for sanctions—so: "If a motion under this subdivision is denied, and the court finds that the motion did not have an objectively reasonable basis when it was filed, the court may award reasonable attorney's fees to the respondent for defending the motion."

The Court rejects these recommendations, and unwisely so, I believe.

Instead, the rule the Court promulgates provides that:

"After adequate time for discovery" a party may move for summary judgment on the ground that there is no evidence of one or more essential elements of a claim or defense on which an adverse party would have the burden of proof at trial.

The trial court must grant the motion unless the respondent produces "summary judgment evidence" raising a genuine issue of material fact.

The rule the Court promulgates omits the Committee's recommended certificate of no-evidence and sanctions in the form of attorney's fees for defending a motion that had no objectively reasonable basis when filed.

When to File

I believe the Committee's recommendation, establishing a bright line test for the benefit of the bench and bar, is preferable to the discretionary lan­guage the Court adopts. The Committee's recommendation avoids the necessity to determine whether the respondent has had "an adequate time for discovery." The Committee's recommendation avoids the uncertainty that would result from the appellate courts' frequently unpredictable application of the abuse of discretion standard to a trial judge's determination of '"an adequate time for discovery."

The Committee's recommendation permits the trial court the opportunity to issue a pre-trial or other order setting a date after which a party could file a no­evidence motion for summary judgment. Such an order could be entered on a party's motion or a trial court's own initiative. If a respondent has not had adequate time for discovery the trial court could grant a continuance upon the particularized discovery needed to meet a no-evidence motion.

Summary judgment Proof

The Committee's recommendation is broader than the Court's promulgated language. The transcripts of the Com­mittee's meetings show that its membership was not in agreement about the definition of '"summary judgment evidence" in the context of responding to a no-evidence summary judgment motion. However, I agree with those Committee members that believe that '"summary judgment evidence" means all the materials specifically identified in Rule 166a(c) plus all other discovery products with probative value referred to in Rule 166a(d). See Tex. R. Civ. P. 166a(c), (d). The Committee's recommendation accomplishes that object while the Court's language does not.

Certificate of No-evidence

The Committee's recommendation provides for the movant's attorney to certify that all discovery has been reviewed and that in the attorney's opinion, the discovery reveals no evidence to support the specified elements of the claim or defense. The Court rejects that language. I believe the Committee's recommendation serves a salutary purpose.

The Committee's recommendation would act as a deterrent to abuse of the no-evidence summary judgment rule and curb the filing of frivolous no-evidence emotions. Given the costs of an appeal relative to the costs of a no-evidence motion, disincentives in the form of the Committee's recommended language should be included in Rule 166a(i). To do so would prevent a flood of no-evidence motions that would further burden our already overburdened trial and intermediate appellate courts. Neither our trial or intermediate appel­late courts have the discretion to refuse to consider frivolous matters, and nei­ther have the resources to handle a new deluge of any variety.

Sanctions

The Committee's recommendation provides the trial court the express authority to assess attorney's fees against the movant if, when denying a no-evidence motion, the trial court finds the motion had no objectively reasonable basis when filed. The Court rejects that language, and chooses to provide only in the comment that a Rule 166(i) motion is subject to sanctions provided by existing law and rules.

The Committee's recommended lan­guage is based upon an objective standard. Thus, the Committee's recommendation avoids the unwieldy burden facing trial judges of determining subjective intent in sanction motions hearing. The Committee's recommended language provides for the limited sanction of the respondent's reasonable attorney's fees for defending the motion, 1 rather than the broad array of sanctions available under "existing law and rules." Placing the sanction authortty and the sanction available in the Rule itself clearly establishes the standard that applies to the trial court's exercise of its discretion and the limits of the exercise of that discretion.

The Order and the Comment

The Court's Order of Final Approval of Rule 166a(i) states that the comment '"unlike other notes and comments to the rules is intended to inform the construction and application of the rule." The opening sentence of the comment makes that statement. I am the second junior justice on the Court, and therefore my institutional knowledge is necessarily limited. However, I am informed by justices senior to me that the quoted language has never been included in a comment to the Rules.

In my view, this unprecedented language in the comment does not correct what I believe is the fault of the rule the Court adopts. The Comment does not achieve the balance, fairness and safe­guards that would result from including the Committee's recommendations in the rule itself.

Conclusion

As stated, I am concerned about why the Court continues to use the Supreme Court Advisory Committee with the resultant expenditure of time, effort,s and money by its own appointed members, when all recent indications suggest the Court prefers to write its own rules without outside assistance. While I agree with the concept of a no-evidence summary judgment rule, for the reasons expressed, I do not agree with the specific rule the Court adopts today.

I dissent.

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1. I suggest that the Committee's recommendation does not go far enough. The trial court should also have the authority to order the unsuccessful movant to reimburse the respondent's actual reasonable and necessary costs incurred in defending the motion.