The final version of rewritten Texas Rule of Civil Procedure 166a—the summary judgment rule—became effective March 1, 2026. In this episode, Michael Duncan, an appellate and motions practitioner in Austin who clerked for a Texas Supreme Court justice, unpacks the updated rule with hosts Todd Smith and Jody Sanders. Together, they examine what the Supreme Court changed for the better from the proposed amendment—clarifying the burden of proof for traditional motions, allowing parties to extend response deadlines by agreement, and explicitly requiring evidence with a traditional motion. They also flag new and unresolved concerns, such as the removal of "promptly" from the court's hearing-setting obligation and the potential for abuse of the filing-triggered response deadline. Michael also shares his comparison chart that untangles the four sets of standards governing motions filed during the transition period.

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Welcome to the Texas

Appellate Law Podcast,

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And now, here are your hosts,

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Produced and powered by LawPods.

Welcome back to the Texas Appellate

Law Podcast. I'm Todd Smith.

And I'm Jody Sanders.

Our guest today is Michael Duncan

from Naman Howell, Smith and Lee.

He's in the Austin office of that

firm. Welcome to the podcast, Mike.

Thank you. Happy to be here.

So a few weeks ago,

we did an episode about

the new Rule 166A in

Texas trial practice, the summary judgment

rule. And we thought we would do ...

Now that that rule has been

finalized, as of March one,

it is the official rule 166A with

some changes that the Supreme Court

made as it typically does before it

releases the final version or before the

rule becomes effective, I should say.

And you've been writing some things

on this and published, I thought,

a really useful chart on LinkedIn

that we're going to refer to at

various points in the episode.

Also going to make it available in our

show notes for this episode because it is

a great tool. We'll talk

about it in some detail.

But basically back in episode 160,

Jody and I sort of walked through the

proposed rule and we flagged some concerns

that jumped out at us that hopefully the

Supreme Court would take into account

and other people might

comment on in advance of the

comment deadline back at the

end of February. And so our

mission today is to take a look at

the final version effective March

one to see what the Supreme Court

did, if anything, with those

concerns that we flagged.

And then if there were any new issues

that were created by the amendments

that the court made to the proposed

rule before putting it in final form.

I think there may be a few to

continue conversation about.

We don't really intend to completely

recap the previous episode.

We wouldn't have time to do that.

So we're going to refer folks back

to what is episode 160, as I said.

And then we're going to get into

what's new in this episode today.

And we're glad to have Mike, you with

us here on the show to talk about that.

Before we get into that though,

let's give you a chance to sort of

introduce yourself and talk about your

background and how you got into appellate

practice and maybe specifically your

interest in summary judgment.

Sure. Well,

here at Naman Howe I practice mostly

either appellate or motions practice.

As a result, I end up doing a

lot of summary judgment work.

I've been interested in appellate practice

like many people since law school.

And when I graduated law school,

I went to the Supreme Court and

clerked for Justice Johnson for a year.

And after that, I joined

Name and Howe. Ostensibly,

I joined in corporate practice,

but I was looking for every opportunity

I could to scratch that appellate itch.

So after a few appellate

cases and possibly after my

partner I was working for in the corporate

practice realized I might be better

at appellate law than

I was at corporate law.

He asked if I wanted to move more

into that little time and I had that

opportunity. So that was

great. Prior to that,

I had a career in public affairs

representing ophthalmologists at the state

legislature and before state

agencies, not as an attorney,

a lay public affairs practice.

And then after I'd done that for about

16 years,

I had the opportunity to either move on

to something bigger or finally go to law

school as I'd thought

about doing for so long.

Went to law school as a 40 year old

1L. So that's how I ended up here.

I'm sure that life experience and

particularly experience in the legislature

benefited you as a lawyer though,

and starting in law school,

but going all the way through

into your current career.

It definitely did.

Though I got to say it was extremely

enjoyable to disconnect from real

life for three years and hang out with a

bunch of very young, very smart people.

Well, great. Well,

we're glad to have you with us today and

you bring an interesting perspective to

the issues we're going to be talking

about. So I just want to jump in then.

We're going to first cover the things

that we think the court fixed in the final

rule that we had pointed

out in our last episode.

The first was there was

ambiguity in the burden of

proof on a traditional motion

and what it applied to.

The proposed rule could have been read

to bar traditional motions for summary

judgment on an opponent's affirmative

defenses because it included this

language,

an issue on which the movement would have

the burden of proof at trial and also

a genuine issue of material fact

exists as to a claim of defense.

I'm trying to remember, Jody, exactly

what we thought created that ambiguity.

Well,

because it said a genuine

issue of material fact exists

as to a claim or defense

on which the movement would have

the burden of proof at trial,

which you could read that to

mean not just defense, but claim.

And it just was a little bit ambiguous

as to whether or not that eliminated your

ability to move on someone else's claims

for which they had the burden of proof,

particularly defenses.

And so now we see that that

ambiguity has been removed.

The definition now reads,

"The movement seeks to establish that

no genuine issue of material fact exists

as to a claim or defense and that the

movement is entitled to judgment as a

matter of law." That is clearer to me.

And I also see that in

describing the motion,

it's I believe B1,

it also clarifies that a party may

move for summary judgment on a claim or

defense. I think pretty simple.

You can read these two provisions

together to eliminate any ambiguity there.

And so I think we don't have that

problem. And gratefully the court,

I'm sure we weren't the only ones that

posed this issue to the court. Jody,

I know you've sent in comments. Mike,

did you send in comments, by the way?

I did not send any initial comments.

I've sent comments to the new final rule.

Oh, well, I can't wait to hear

about those. That's the good stuff.

So in any event,

I think to loop back and sort

of close the loop on this point,

I think we're back to where

we were under the former rule,

which is you can move for summary

judgment on either a claim or on an

affirmative defense. There's not

a gap there at this point. Jody,

what point would you like to cover

next on things the court fixed?

So the next one,

I think we had talked before in the

traditional motion section didn't actually

say that you had to provide evidence,

which I guess on a no evidence

summary judgment makes sense,

but on a traditional motion

kind of creates some issues

because in the old rule,

there were deadlines about when

everything had to be filed,

notices of hearing and all that.

And I think it was just one of

those kind of oversight things.

And now B2C says specifically

a traditional motion

has to have evidence with it, which I

think is good. And in a few minutes,

we'll talk more about what that evidence

is because they became very explicit in

the updated rule, which I think is good.

We flagged in the previous episode that

the rule did not make clear whether

parties could agree to extend

response or reply deadlines.

Now the rule closes that gap

and you had to get leave of

court before, but now the final rule says,

"Except on leave of court or agreement

of the parties," and that's in sub D1 and

E1. So I think now the court

has made clear that yes,

that the parties can reach agreement

on extending certain deadlines.

This is a very practical and significant

fix for those of us that do summary

judgment motions or

responses on a regular basis,

just because you face conflicting

deadlines all the time in your practices.

Mike, it looks like you have

something to say about this.

I am sure that they heard not

only from attorneys on this one,

but probably from a few judges as well.

No, I think that's probably right because

I think we can all agree from a lawyer

perspective, it's critical,

but why would the court want to stand in

the way if the parties agreed to alter

some deadlines? And that's

what rule 11 is for, right?

So I think that's a good change

and I'm glad, whatever the source,

I'm glad that the court saw

fit to make that adjustment.

Yeah, I think that's right. And

we'll talk more in a minute,

but this particular provision is the

one that I worry the most about in the

rules when we get to that. Not

the agreement of the parties,

but the overall provision.

We'll get there.

Okay, sure. And.

Then I guess the next one that we had

kind of flagged was in the original

version,

the response had to have the objections

to the evidence supporting the motion as

part of the contents of the response,

which is interesting because that's ...

I guess I have done that before,

but that's not always been my practice

because you can file separate objections

and do everything in its own thing.

I don't know that I had a big problem

with it other than I know that there's

page limits and some local

rules and things like that,

and so you're already creating

some problems for people with that.

So I think it probably is good

that the court just took that out.

Yeah, agreed.

You didn't need to create a problem

where there really wasn't one before.

So it's nice to have

that issue taken care of.

So those are the major things that I

saw that I think we've generally have

agreed the court addressed in the new

rule. Did I miss anything there or Mike,

did you see anything that

we didn't talk about?

Yeah.

One thing they did add in

the new rule is to provide

that the clerk will serve

notice of the hearing.

Prior to that, while the

court had to set the hearing,

it wasn't necessarily clear how that

was going to get communicated to the

parties.

Yeah.

There's another change to that that I

want to get to when we talk about the new

issues in the final order that were

created. I just want to quickly recap.

I don't think we've got any more

of the things that we pointed out.

I don't think that there's any more that

the court actually did fix as far as I

can recall.

There are a few things worth mentioning

that we pointed out that the court did

not fix.

Not to say that the court should have

listened to our every word and taken it as

gospel. I mean, we went to the

trouble to record the episode,

but hopefully the judges on the court

all know that we don't take ourselves too

seriously and definitely don't purport

to be telling the court what it should

do. It's tempting sometimes,

but we have a lot of respect for the

court certainly as an institution and

the justices,

and it's not our place to try and tell

them what to do. But all we can really

offer are friendly suggestions.

And gratefully, as I

said, whatever the source,

it seems like some of those

well and made those changes.

But as far as the things that the court

did not address in the new rule that we

had pointed out and possibly others

had too, this is just a minor issue,

the terminology between a combined

motion for summary judgment and a hybrid.

I mentioned last time around that

you see in the case law all the time,

the word hybrid used when it's both a

traditional and a no evidence motion.

I don't really have a problem

with choosing the word

combined instead of hybrid.

It just means that we're going to start

seeing that reference in the case law as

opposed to what is currently been or

up to now been referred to as a hybrid

motion. So just keep that in

mind as you're reading cases,

especially those that

just starting practice,

they won't be as familiar with all those

old cases that have used hybrid for the

last 30 years or so.

Minor point, but worth flagging.

Well,

and it especially comes up when you're

trying to come up with your search terms

for Westlaw or Lexus.

Good point. Yeah, good point. Jody,

you were big on the potential for

abuse of these in our last episode.

You want to just reflect

on that for another minute?

Sure. I mean, interested

in Mike's take on this too,

but I think my biggest concern with

this rule, and I understand why,

given the deadlines and the statute,

but the fact that the plaintiff filing

controls when the defendant's response is

due rather than the hearing, it just

bothers me. Or well, I say plaintiff.

I guess the movement's filing controls

when the non-movement's responses do

because I can see lawyers

using that to strategically

disadvantage their opponent. If they

know their opponent's going to be busy,

if they know they're going to

be in a trial or whatever it is,

you can file your summary judgment.

The trial court then has to set it and

hear it within a certain amount of time

and your response is due 21 days after

they file it and you have very little

control over it, unless number one, they

agree or two, you get leave of court,

which when you've only got 21 days

and you're scrambling and all that,

I don't know. I see some real potential

for abuse there or people just filing it

to suss out what the other side has

and then withdrawing their motion right

before the hearing. I just think

there's a lot of room for that. Mike,

I'm curious on your take.

Me too.

Well, I agree that there's

some potential for abuse there,

but I feel like some of that abuse

could have been had in the past,

particularly pulling it down before

the hearing after seeing the evidence.

That said, the similarities between

the new rule and the federal,

especially in the Northern District

and the Southern District where the

deadlines are exactly the

same, 21 days, seven days,

really will make this feel familiar

to people who end up with a lot of

federal court practice.

I think we covered that a

little bit last time too,

that we've seen a little

more federalization of

our state appellate rules

and trial court rules over time. This

is just consistent with that, I think.

Yeah, that's a good point.

We shall see. I don't know. I mean,

I suppose it won't be long before we

start hearing war stories about that topic

if that's how litigators

choose to use the new rule.

The Supreme Court did

not institute any ...

It didn't comment one way or the other

on how it thought that should go.

And so we will see what developed.

I think the trial judges are the ones

that are going to kind of bear the brunt

of it really, because they're the ones

who get the motion then have to set it.

Then they've got space on their docket

now for this and it may or may not get

withdrawn that,

but maybe that's not any different than

what's been happening to Mike's point

all along. I don't know. We'll see.

Well,

I actually had flagged in here that

something the court had not addressed we

wondered about in the last go round was

whether new evidence could be attached

to a reply.

It's true that I think maybe that's the

incorrect take because I think they've

dealt with this indirectly.

But just to clarify,

the rule itself only prohibits new or

independent summary judgment grounds in a

reply.

And so that part of the rule addressing

the reply specifically is still silent

on new evidence,

whereas the old 21 day notice period

implicitly blocked late evidence.

And so you could say, "Well,

this is an open question.

Do I get to attach new evidence to my

reply that I didn't include with my

motion?" But if you look at subsection B2C

on traditional motion,

the court did add the language that

says a traditional motion must state

specific grounds in support of the motion.

There was a period there in the

draft. The final rule says after what was

the period and produce any evidence in

support. So I think if you read the

rule closely and sort of holistically,

I think that does tell you that implicitly

the time to present your evidence in

support of your motion is

when you file a motion.

I think that's how the

courts will read it anyway.

In addition to that,

they've added to the very end of the

rule in accordance with other case law,

how late filed evidence is treated.

That certainly implies that

evidence might be late filed.

Yeah, that's a great point.

And late filed could be late that

you didn't file it with your motion,

I suppose,

and then late filed that

you're the respondent or the

non-movement and you filed

it after the period for

filing your response.

And so that could cover both of those

scenarios, I guess, is what you're saying,

Mike.

Be careful when you're

drafting proposed orders,

because if you just say

the court considered the

evidence of arguments of the

parties and whatnot,

you may inadvertently permit late

filed evidence to be considered.

So just think carefully about how you

word that if you've got that issue.

That's right.

That's a good tip.

I like to include the court considered

timely filed evidence in my orders.

Yeah, that's a good drafting tip for sure.

This is an interesting point though about

the addition on late filed evidence.

I think we'll get to this. We may

want to discuss this a little later,

but it did add there's a whole new red

line that adds that provision on late

filed evidence that says the court may

consider late filed evidence if the court

indicates its consideration in the record.

So that adds another twist to

drafting because it seems like

in order for late filed

evidence to be considered,

the court has to acknowledge that it

was late filed evidence and say that it

considered it.

So this is another thing that's just going

to have to develop over time with ...

People are going to have to draft their

orders and those orders are going to

have to go up on appeal and people are

going to have to be arguing about, well,

did the court consider late filed

evidence or not? And then we'll see some

references to this new subpart

of the rule telling us, okay,

what does the court have to do for that

evidence to be considered or show that

it wasn't considered?

So getting down in the weeds though

a little bit on drafting now,

because we can hypothesize about what

all this is going to do, but in the end,

as we've said before on the show,

you won't really know the answer until

it percolates up on appeal. Well,

and talked a little about discovery

not otherwise on file, Jody,

but is there more to say on that?

No, I think we just don't

really know what it is.

I guess one thing that is not

entirely clear is discovery not on

file. I mean,

does that mean in the specific context

of something that's not filed with the

motion?

Because now they've added the section

that we can talk about more in a minute

that evidence is in the court's file

someplace else can be used referenced.

So I mean, when it says

discovery not on file,

does it mean specifically in the MSJ

context or just anywhere in the court's

file? I don't know. Something

for people to figure out.

Mike, anytime you've got a comment

on any of these, please chime in.

Yeah, jump in.

So I will say, if it's

somewhere in the court's file,

I don't believe that's what the rule

refers to because the immediate preceding

rules states that evidence

produced by reference can be

specifically referred to by pointing

out where it may be found in the court's

file. So if it's in the

court's file somewhere,

I don't believe that would be

evidence not otherwise on file.

Yeah, that makes sense.

That's an important observation

that comes out of that is,

this is the three of us spitballing,

trying to figure out what this means.

And it's been out for about a week now,

and so it's still hot off the press.

None of us have seen it in action yet.

We are sort of speculating

about how this is going to go.

I think if we sat down and did extensive

analysis and research based on the

facts we're dealing with in the record

in a case that we are working on,

we might come to different conclusions

or we may be advocating different sides

of this. For today, we're

speaking sort of objectively,

trying to and just pointing things out

and hopefully being helpful to those that

are going to be in that

position of being advocates,

trying to apply the new rule.

Last thing on things that

the court didn't address,

this wasn't in the proposed rule,

but we did point out that there was some

speculation. The advocate article that

we spoke of in the last episode talked

about this is how in the world is the

court going to track this?

Are the parties going to have some

obligation to keep up with these deadlines

for ruling and so forth

and remind the court?

And I think we observed

that that particular concern

was not addressed in the

draft rule. It was not addressed

in the final rule either.

So the compliance with the deadlines,

as Mike I think suggested earlier,

still really rests with the

clerk and the trial court.

And so there's not an official mechanism

for the parties rather to flag an

approaching deadline,

but that still may fall within

the range of best practices,

depending on which side of

the issue that you're on.

Sending a letter to the court

coordinator or something like that,

if you know the clock's been taking

and the court hasn't taken any action,

it seems like that might be a good

idea to sort of help the court along,

at least coordinate, talk

to court staff maybe. Again,

we haven't seen this in practice yet

to really know how this is going to go.

Anything else on the things that

the court didn't address in the new,

the final version of the rule

from you guys? All right.

Now we get to move to the

fun stuff. And I know, Mike,

you've got a thing or

two to say on this topic,

which is what new issues were

created by the final order?

Because as we talked about last time,

the way this process works is there's

not multiple rounds of comment period.

It's one shot and the court will take

those comments from the proposed rule and

roll them out into a final rule

and adopt it, and that's it.

Not to say that the rule wouldn't be

changed or couldn't be changed later.

It certainly could, especially if new

issues pop up. And I want to hear, Mike,

about, let's start off,

why don't we with what you were suggesting

earlier is you were going to comment,

you had an intention to comment on the

final rule and an issue that came up in

your view based on the new version.

Yeah. So under the old rule,

the timing for filing a response

said that you may file a

response seven days before the hearing.

The new rule says you must file under

the rule as published on December

30th,

said you must file any

response within 21 days of the

filing of the motion itself.

The new version that came out

last week says you must file a

response.

And that implies to me

that no longer is filing a

response optional as it always has been,

but now it's required under the rule.

That's not going to affect most attorneys.

Most attorneys are going

to file a response.

I would really hope that all attorneys

are going to file a response and not just

roll the dice on the idea that the

movement didn't prove its case,

but that's something that we may see come

up as appellate attorneys. If we pick

up a case we weren't

involved in that trial level,

no telling where it came from,

it may have been a pro se client

for that matter at the trial level,

and they're trying to avoid a summary

judgment that was granted against them.

I wonder what the consequence

for that failure is here,

because under the old rules,

you didn't file a response fine so

long as they didn't prove their case,

the lack of a response was kind of

immaterial because you can't get summary

judgment by default effectively. I just

wonder if someone doesn't do that now,

what the problem is or

what the conflict would be.

I would think that eventually it

would still be the same outcome.

There's no default

summary judgment. However,

you get the wrong judge at the trial

level or you get the wrong panel at the

appellate level, you might be spending

a lot of money to fight about it.

Right. So basically just don't ignore

your response deadline is the key.

Even if it's to say that they didn't

meet their burden, do something.

I mean,

you could file something that simple

basically just to get something on file.

Yeah.

I don't think you want to be the litigant

that doesn't comply with the rule that

says you must file a response. And

obviously in the no evidence context,

if you don't file a response,

you're going to lose the motion.

Well, right. This is really

only about traditional.

Yeah, it is. But yeah,

that's an interesting change.

I don't know what drove that part of it.

It's good that they added the provision

there on allowing an agreement of the

parties to extend the

time for the response,

but adding or deleting any

in favor of an A response,

I'm not sure. Again, time will tell. Well,

so there are some other changes kind of

like that I think are worth mentioning

kind of quickly.

One is the court in the

original version had ...

So what we all know to be the standard

of to get a motion for summary judgment

on no evidence grounds granted,

which is to show that the non-movement

could not present evidence of one or more

essential elements of its claim.

And what the court did here is modified

that one or more essential elements

language in the definition of no

evidence of a no evidence motion to

an essential element. I really don't

think that there's any intention ...

The court has made clear it

didn't intend to change the law.

So I don't think that there's an

intention to change anything there.

It could very well have been that the

court was just trying to tighten up the

language and the rule a little bit,

but I can just see a lawyer

creating or making an argument by

attacking multiple elements that goes

beyond the scope of what a no evidence

motion is because, okay, well,

the rule says you get to

attack an essential element.

Pick your essential element. That is

not what this rule is intended to do.

There's no way.

I just don't know why the court even

created the argument that somebody will

make at some point.

Right. Well, to Mike's point, I

mean, probably doesn't mean that,

but it's going to cost a lot of money

for somebody to find out one day.

Agreed. Agreed.

And that's the whole point behind a no

evidence motion is you're supposed to

identify the specific elements

you're challenging. By definition,

you can challenge more than one element.

You could have a challenge

to more than one.

So I don't think anything significant's

going to come out of that,

but it's just an observational point.

And I'll jump into the next one too,

because it's kind of the same level.

It really leads to some speculation,

but not much more, I don't think.

The proposed rule in

subsection C or in section C,

the court must set the motion for an oral

hearing or submission without an oral

hearing,

but the word promptly was

immediately followed the court.

The court must promptly set the motion

was in the former version and promptly

has now been removed.

So my only thought on this is that

it's conceivable that a court,

within the bounds of when the motion

has to be heard on submission or oral

hearing and decided,

the court might decide not

to set it so promptly and

give you a really short amount of notice

of your hearing. And depending on your

availability and the usual

factors that go into law practice,

you might wind up kind of getting a

surprise hearing in sort of late notice of

that.

I just see that as a potential risk and

one potential outcome of this as well.

The court waited till the end of the

time period and then set a hearing,

I presume on like three days

notice, which for a lot of folks,

especially if you're out of town,

you're not from the area in

which the suit's been filed,

appearing at a hearing on

three days notice can be tough.

So just something to

flag as being out there.

I don't know that anything significant's

going to come out of it or it's going

to really change anything, but just

something, the court struck a word,

struck the word promptly. So that

could conceivably have some effect.

And it would deprive you of some

of your oral advocacy, possibly.

But theoretically, given the

nature of summary judgments,

it shouldn't affect the outcome. Of

course, it may, but it shouldn't.

Not to mention,

I would expect most courts that are having

to hustle up with a three-day notice,

they're probably just setting

up for submission telling you,

you'll hear from me in 90 days after that.

That's right.

That's probably the more likely scenario,

Mike, is that a court says, "Oh yeah,

I got to do something with this.

I'm going to set it for

submission on three days notice.".

And then they'll send

out an order denying it,

which is what I think you're going to

see a lot more of is a lot more denials.

That could very well be. And

that's an interesting point.

What does that do to summary

judgment practice as a whole?

If you just see a whole

bunch of orders denying,

we've seen an uptick over 10 or

20 years and the number of summary

judgments that courts have granted,

it used to be the courts didn't

like to grant summary judgment.

You still hear that.

So I think that's probably the uptick

in granting of summary judgments

you would think would fall off as a result

of the encouragement and the rules of

course just to ... I'm not going to have

a hearing. I'm just going to deny it.

We're going to move on. I don't know.

What do you guys think about that?

That's a concern that has been expressly

raised to me by some of my litigation

partners that they're concerned that

all this rule does is encourage more

denials.

I'm hopeful that the 90 days that the

judges have take it under consideration

after the hearing or submission

will give them enough time to

avoid that.

But it would be interesting if somebody

did a study of summary judgment

decisions to see how many of them

get denied in the last day before 90

days runs.

Okay. Let's flag this for OCA right now.

There you go. Put this in your time

charts that you're going to be reporting.

Yeah. Let's add that criteria,

add that unit of measurement as how

quickly before the end of the period,

the ruling period or court's ruling,

but even broader and more importantly,

what are we going to see in

the next measurement cycle

after courts start ruling

on this in terms of the number of

summary judgments being denied?

That would be an interesting fact

to take a look at when the stats are

available.

So one of the things I saw just this

week was a scheduling order that

crossed my desk that said all

dispositive motions needed to be

filed about 60 days prior to trial

and that they needed to be heard by 30

days prior to trial. I said,

"Well, that's a problem now.

We have a 35 to 60 day

window for hearings.

If we're going to have

that window for hearings,

we're going to give the courts more time

with summary judgment." I ... Filings.

So it seems to me we

need at least 90 to 120

days in scheduling orders when you're

thinking about how to schedule out

dispositive motion deadlines.

But I'd be interested to hear

what y'all thought about that.

I mean, yeah,

I think that's consistent with what we

talked about in the previous episode.

We thought as a general matter,

scheduling orders were going to have to

really build out the deadlines and give

a lot of lead time for

summary judgments. I mean,

I don't think I have any

different thought on that today.

I don't know that I do either,

but I think it is something that you

need to think about. And keep in mind,

particularly now that the setting of

the hearing is a little bit out of the

party's hands, honestly.

It used to be one party would file your

summary judgment motion, you'd call,

you'd get dates, you'd

send out the notice,

and now you file a motion and it

kind of is removed from your control.

So just be aware of the deadlines well

in advance of when you think you might

need to do it, just so you have

that going in the background.

And I don't end up dealing with scheduling

orders all that much in my practice.

They usually come to me on

the back end, long been set.

And so it's something that I flagged as

something to discuss with my litigation

partners to make sure they know.

Yeah. I think that's the key is just

keep it ... It may not be a big deal,

but now that there's these

deadlines and these requirements,

just kind of keep them in mind,

both when you're doing a scheduling order

or when you're trying to comply with

one that's already in

place. And hopefully,

I think as this gets more

baked into Texas practice,

judges may account for some of this

stuff in their scheduling orders.

You have to file the motions by X date,

which means the hearings will be

by wide day, those types of things.

But for now, I think we probably still

have a lot of the standard templates.

Another issue just worth talking

about briefly about responses is

it does clarify ... I mean, I

think this was already the intent,

they just changed some of the wording,

that you got to submit your

evidence with the response.

We talked about the change and they

removed the language requiring the

objections to be made

in the response already.

And I can't recall if we addressed

this already. I don't think we did,

but the original version

said, "Oh, and by the way,

ask for a hearing in the cover of your

motion when you file your response." And

I think one of the things we

observed last time was, well,

you don't typically have a cover

to a summary judgment motion,

unlike an appellate brief. The

court changed that to read,

assert the request or make the

request in the title of your response.

So that simplifies it,

doesn't impose a requirement that we have

to add a cover to our summary judgment

motions. But the thing I wanted to get

to here was that the draft had a sentence

that said,

"The court may reset the motion for a

hearing if no hearing has been set." And

it deleted that language entirely.

And so I'm not really sure the impact

of that. Almost looking at it now,

it doesn't even seem like that language

even belonged here and now they've

removed it.

So I'm trying to read the tea leaves to

figure out what they're getting at and

I'm really not sure, to be honest.

Yeah.

I'm not sure how you reset a motion for

hearing if it hasn't been set in the

first place.

Well, not only that, but what does

that really have to do? I mean,

you're asking, it has to do with their

request for a hearing and the response,

but yeah, it hasn't been

reset. So I don't know.

I guess all this is to say, "Hey,

that seems like a good change,

a good deletion because whatever confusion

may have been caused by the inclusion

of that language has now been

addressed by just removing it.

" Just going to the sentence before

that about putting the request for

oral argument in the title,

I think that also ties in pretty

well with the timing requirement

for the hearing in that the

court may have up to 90 days

for the hearing if its

docket requires it or on good

cause or if it's requested by the

movement or agreed to by the movement

rather. And therefore,

if you're the movant and

you want an oral argument,

you should probably put in your

title oral argument requested

and movement agrees to

90 day hearing timeline.

And I know that's something you mentioned

in your cheat sheet that we're going

to talk about, Mike. That is a

great practical tip for sure,

but I do want to get to that.

Do you want to talk, Jody,

about the amended pleading exception?

Because there is some new language

there that I think is worth noting.

Yeah. I mean,

the old rule made pretty clear that you

can't raise new or independent summary

judgment grounds in their apply,

but you are allowed to address newer

amended pleadings filed after the motion,

but they've added a clause to that,

that it's only those new pleadings 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 newer amended pleading.

So your original argument still kind

of has to tie back to whatever the new

claim is. I'm not quite sure how

practically that's all going to work,

but it's just something to be aware of

that you've got to have some connection,

I think,

between your original motion and then

what's in the amended pleading to be able

to address that.

So I will say places that I've seen

something like this come up before,

and I believe the new language is

consistent with some case law on this,

but for example,

if you've got a case that involves

a negligence claim and the amended

pleading, because you're saying

that you don't have a duty here,

the amended pleading adds a negligent

undertaking claim to say, "Well,

you assume the duty." Well,

if your summary judgment motion

also addressed the element of

causation or damages,

those are both common to the negligent

undertaking. So even if they can say,

"Well,

you had a duty under

negligent undertaking," you've

still addressed another

element.

Sure.

We already talked about how the rule

is now addressing late filed evidence,

so I don't think we need to

spend any more time on that.

I think as a sort of a final point on,

and I wouldn't say that it's really

an issue created by the new rule,

it's just more of an observation.

The initial draft frequently

used the term adverse party

throughout the rule. And what the court

did, I think is a good change here.

They removed all the references to adverse

party and changed it to non-movement,

which is consistent with what

we commonly see in the case law,

a movement versus a non-movement.

I've never seen a summary judgment

case using the phrase adverse party,

at least not in the context of

someone who is otherwise a non-movant.

So I think it's minor, but it's

just worth pointing out, I think.

Yeah, that's a good change.

Okay. So let's talk about what are

the practical implications here?

We've talked about some of them.

We've talked about docket control

orders are going to probably be changed,

need to be changed.

Some things that we mentioned in the

last episode where we've covered the

previous version of this,

where we've got a lot of things in here

that courts are going to have to jump on

and get used to,

but it's kind of reminiscent of the TCPA

and what the courts had to go through

in dealing with deadlines

to rule that statute.

And I think our conclusion at the time

was they did it before with the TCPA.

They'll figure it out when

it comes to new rule 166.

And it's probably worth

mentioning again briefly that the

timelines for ruling and so forth

are going to be reported to the OCA.

This was all tied up in some statutes

where I guess the legislature decided that

the judges weren't rightly or wrongly

getting things done and working hard

enough to get motions disposed of.

So that's something to keep an eye on too,

is what the OCA stats ultimately

reveal on some of this,

but that's not really

a practice implication.

I think we've got Mike here to offer

us a little different perspective.

So let me throw it over to you, Mike.

What are some of the practical

implications for practitioners on both the

movement and the non-movement side that

we really haven't had a chance to get

into yet that you've thought

of that you'd like to discuss?

Sure. One of the practical implications

that I've seen a few times,

I don't think this is all that common,

but I have seen it a couple of times.

Some people have been

filing Rule 91A motions that

have as an alternative a motion for

summary judgment. And of course,

if you've got a 91A motion,

that 91A motion has to be heard

sometime between the 21st day and

the 45th day after it was filed.

It's got to be decided on by the 45th day.

And now we've got motions for summary

judgment that have a window of the 35th

day and the 60th day after

they've been filed to be heard.

And if you file this combination motion,

you're putting the court in a box

where they've got a 10 day time

window in which they need to

hear and decide at least the

91A portion of the motion,

not to mention that the

respondent's deadlines are in

the case of 91A motion

seven days prior to hearing,

and in the case of the summary judgment,

21 days after filing. So I think

probably best way to deal with that

is to avoid filing these

combination motions.

And if you're on the receiving end of one,

you might want to object to it or go

ahead and file separate responses.

Yeah, that's an interesting

combination. And of course,

the skeptics out there might say,

"Why in the world would a lawyer billing

by the hour choose to combine two

motions into one when you can prepare

two and bill for two?" But as you

pointed out, there's a good

reason not to do it that way.

One of the biggest reasons is not to, as

you say, Mike, put the court in a box.

The court might set a hearing on the

91A part and not on the MSJ part,

I suppose, would be one

way of dealing with that.

The court could just treat them like

separate motions, but why even go there?

Why do you even need to do that?

I guess the practical advice is,

to those of you who have done that,

unless you've got a strategic

reason for doing it, don't do it,

and what's the strategic reason?

It's just better if you don't.

Beyond that, the practical

implications are,

and most of these are the

legislature's implications,

not the Supreme Court's changes.

I'll say three quarters of them

are the legislature's implications.

And that's that we now have four

different categories of summary judgment

rules that apply to summary judgments

that are out there in the world that have

been filed. If you filed your

summary judgment before August 31st,

it is entirely under the old rules and

the new statutes don't apply at all.

If you filed it between

September one, December 30th,

it is under statute that

was passed as SB 293.

That can sit out there just like an old

summary judgment can because does not

have to have a hearing until 45

days after a response is filed

and the court doesn't have to rule on

it until 90 days after the hearing.

So if you don't set it for a hearing,

the non-movant never files a response.

It can last out

there like summary judgments used to.

It does raise an issue that I haven't

fully wrapped my head around of if you're

the non-movant and you want to get

that summary judgment out of the way,

can you just file a response

and force a hearing?

It is. I have another question,

but I want you to finish your point

on the three different versions.

So then category four is the motions

that were filed after December

4th or on December 4th and

after, but before March.

And those now have the new

deadlines for the court to hear the

summary judgment within 60 or 90 days

and to rule on it within 90 days.

But the response deadline and reply

deadline are the same as they used to be.

Respond seven days before

hearing and reply. Well,

if there's a local rule, maybe you

have to file a reply in a timely way.

Otherwise, I know people who have

filed their replies after the hearing.

Why?

I know.

And then the fourth category is the only

one that the court's really responsible

for here, and that's the new one.

That's all of the court's

deadlines according to the

legislature's edict and then the

new deadlines for response and

reply that line up with the

federal court response and reply

deadlines.

So we have those middle

two categories of motions.

If you see this episode or listen to it,

you might want to pull up Michael's chart

and look at it during this part of ...

When you're listening to

this part of the discussion,

or at least do it immediately after.

Illustrates he's got a wonderful,

almost spreadsheet looking chart

that lays all this out for you,

including the deadlines, the

times for ruling, everything,

with hyperlinks and everything in it.

So again, I really do, first of all,

commend you, Michael,

for putting this together and sharing

it publicly and for allowing us to share

it publicly because I think it's going

to keep a lot of lawyers out of trouble.

But in looking at that middle two,

you've got the four different

categories you mentioned,

not three that I said earlier.

Those middle two categories are sort of

the no man's land of summary judgment

practice right now. And just in terms

of thinking about practical solutions

and maybe making the court's job easier,

making it easier on the parties even

in some ways, what's to keep ...

I guess strategically, this would

depend on which side the party falls on,

but it seems like you could avoid having

to deal with these sort of gaps by

just withdrawing and refiling your

motion. Just try to put it ...

You want to put it into

the new rule completely,

may or may not please

the court, I don't know.

But if you're not going to follow under

the old rule, if you're in that gap,

if you're in those middle

two categories, I mean,

would it be a practical solution to the

head scratcher of what rules apply and

how does this work? Just withdraw

your motion and refile it?

You could certainly do that.

One thing that I know one of my partners

encountered was she had a hearing on a

summary judgment motion.

I believe it was in December after

the December rules took place,

but it was summary judgment that

was filed before that, of course.

And the judge asked to go on the record

at the hearing for the sole purpose of

getting the counsel on both sides to

agree as to when the summary judgment was

filed and what rules applied to

her decision making and whether or

not she had a deadline by which she

needed to rule according to the rules that

applied.

I like that.

And that's a good solution to things

from the court's perspective that on a

related point,

I was also thinking in addition to the

parties potentially withdrawing and

refiling a motion,

I don't know that the court really could

practically order the parties to do

that,

but what you're saying about this hearing

that went forward was that was almost

the net effect of it.

So the court could have it locked

in on what rules actually did apply.

Maybe could the parties agree that the

process be handled under the new rule

166A? I.

Suppose they could agree to

that. I'm not entirely positive.

That's a tough one.

I'll refer back to my earlier reference

to spitballing because that's all we're

really doing at this point. And I

just wish there was a ... I mean,

there's a category of cases where

summary judgment motions were filed after

August 31 and before March

1st. They're just bizarre.

It's going to take a while for those

to work their way through the system.

And so if there's not any

prejudice to the parties,

why not come up with some kind of creative

solution where you know what rules

apply? The court knows

what it needs to do.

Nobody's overburdened by any of

this, I would think. I don't know.

It's just me trying to be practical and

you've given a lot of great practical

advice already, Mike.

Just thinking out loud,

seeing if we could come up with any

other solutions that would be helpful to

parties in the court.

One practical rule that the Supreme

Court could make might be that any

summary judgments filed on

or before February 28th,

but not decided by some date

that they've set in the future

are automatically denied

without prejudice on that date.

And that would force anybody who has

an outstanding summary judgment if they

want to get it heard to

refile it under the new rules.

It may come to that at

some point. I don't know.

What if some of these are just sitting

out there forever and nobody bothers to

set them?

Well, that's the way it's always been.

I think we're going to see some

mandamus practice coming out of this.

At the end of it,

I recognize that there's

now these accountability

statistics and some judicial

discipline, but under

the text of this rule,

there's not really a specific consequence

to a trial judge that doesn't rule by

the date. It's not overruled by

operation of law. It just is there.

And if you don't rule in

time, you can get in trouble,

but it doesn't have any actual impact on

the court itself or the parties or the

suit or anything, which is

not a bad thing, but maybe

there's something to that.

Yeah. Eventually you'll have these rolling

out as cases settle or go to trial,

but as you guys know, sometimes

that can be years down the road.

But now that there's a hard

deadline for a ruling, in the past,

there have been mandamuses when judges

failed to rule on certain types of

motions. And now that there's both

a statutory and a rule-based one,

I just wonder if we're going to

see parties starting to use that.

Although it's a dangerous game, as

Todd and I have talked about before,

because guess what your ruling's going

to be if you force a judge to make it.

But I mean, sometimes you do need it,

especially if it's like a summary

judgment that can trigger an interlocutory

appeal. I mean, good or bad,

sometimes you just need a ruling.

I do understand that.

Yeah, that's right. As we start

winding down here, Michael,

I did want to give you the opportunity

to tell our listeners and viewers

anything else you wanted to tell them

about the chart. I just think, again,

you were so gracious. You shared it

on LinkedIn and I was curious, one,

what kind of response you've had to it,

because I think it's extremely useful,

as I said, but you got it

basically all figured out.

All the hard thinking is done.

The chart really started back with that

summary judgment hearing that I talked

about where the judge asked the

attorneys to go on the record.

It was at that point that I said,

"Yeah, well, we've got the time,

three different categories of summary

judgments that are out there." And I sat

down and sort of mapped them out. I

didn't make it as clean a chart as this.

But then in February when some

of my partners were discussing

the new summary judgment rules,

and it was clear there was still some

confusion about what rules applied,

I thought, "Well, I've already

got this all written down.

I bet I can put it in a format people

will be able to see." Once I did that,

I circulated within the firm and

everybody received it really well there.

And I thought, "Well, you know what?

I should just share this because this is

something that should benefit people. "

And really,

you want your opposing counsel to know

the rules as well as you do because you

do not want to have to deal with trying

to explain to the court how you're right

and they're not.

That's exactly right.

Especially when it's statutory type

deadlines and those things. So.

Yeah,

that's how I came up with it and I just

tried to put into it everything I could

fit on a single page that

one needed to know about it.

Like a law school cheat sheet.

Exactly. Because it's something I've now

got it taped on my wall beside my desk.

I.

Was just going to say, practitioners,

print this out and take it to your wall.

Take it with you to your summary

judgment hearings for the next.

Foreseeable.

Future till we get some more

stuff figured out. Well, Mike,

this has been great and we

really appreciate having

the chart and everything.

As we wrap up our traditionist

ask for a tip or war story,

have you got anything for

us on either one of those?

You've already given us lots

of tips, but we'll take more.

I do.

I have actually a war story that I

thought of while we were here and it's one

that because there are a lot of appellate

practitioners who listen to this,

they probably have heard this story

before from Chad Barout from his

perspective, but it occurred while

I was clerking at the Supreme Court.

And as you know, at the Supreme Court,

they usually start oral arguments at

9:00 AM and they warn you in advance a

case is not going to take a full hour.

So if you're one of the second

or third to bring your case,

don't wait till 10:00 AM or 11:00 AM to

show up in the courtroom because your

case might be starting without you. Well,

I was acting as the marshal

for the court that day and

Chad was one of the parties

counsels and the other

party's counsel had gone down

to the Texas Law Library to read

over his notes before his argument.

And when you're marshal,

the court has a switch in the

cloaking room that they can turn on

and that turns on a little light at

the Marshall's desk that shows you

that the court is about to

come into the courtroom.

You stand up and all are all rise.

That light went on and there

was nobody at council's table.

The light is actually a lighted light

switch and I didn't know if it was two way

or not, but I'm desperately

flipping it off and on,

trying to signal to the robing

room that they are not ready for-.

Not ready, not.

Ready. But the court came

out, took their seats,

and they sat there for about three

minutes just staring at Chad at his

council table

while Blake went running down

to the library to find counsel.

I'm just glad it wasn't Chad.

Yeah. Oh, Chad would know not to do.

That. Yeah, I know.

I guess the lesson there is might as well

sit through the arguments before yours

because you don't know when

you're going to get reached.

Great point. Well, thanks for

that, Mike. I do want to mention,

we'll put a link to

miscellaneous docket number

26-9012, which is the redline

version of the final rule,

final rule 166A. We'll put a link

to your chart. And by the way,

to the point of the rule,

a full set of the new rules of Texas Rules

of Civil Procedure and Texas Rules of

Appellate Procedure that are currently

effective or available on the Supreme

Court's website. So you can get

the most recent rule, I believe,

complete set of them just by going to

the Supreme Court site and downloading

them and you get a full

PDF of the entire schmear.

I do think it's helpful to look at the

red line personally and see what the

court did. And just also as a reminder,

this is sort of part two from episode 160.

If anything you heard here today

doesn't make any sense at all to you,

maybe go back and listen to that episode

and you'll see where Jody and I were

coming from. So Mike, thanks again for

being with us. We really appreciate it.

Thank you for having me.

I really appreciate it.

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