The Texas Supreme Court is taking comments on its rewritten summary judgment Rule 166a before the rule goes into effect on March 1. To help practitioners understand its implications, hosts Jody Sanders and Todd Smith provide context for the rewrite and take a deep dive into the rule’s requirements. Tune in as they break down, among other details, how the rule defines traditional and no-evidence summary judgments, what it requires when those motions are combined, and how it changes the timing of the non-movant’s response to within 21 days after the motion is filed.

As Jody explains, the Court concluded that summary judgment motions “were either sitting around too long without being heard or without being ruled upon” and set out to address that problem. Todd adds, “This is a huge change from the old rule” that will “require non-movants to be far more proactive in getting their responses done and ready than they were before.”

Email your comments about Rule 166a to rulescomments@txcourts.gov by February 28.

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Welcome to the Texas

Appellate Law Podcast,

the show that takes you inside the

Texas and federal appellate systems.

Through conversations with judges, court

staff, top trial and appellate lawyers,

academics, and innovators,

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you become a more effective advocate.

Whether you're handling

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your arguments, innovate your practice,

and stay ahead of the latest developments.

And now, here are your hosts,

Todd Smith and Jody Sanders,

produced and powered by LawPods.

Welcome back to the Texas Appellate

Law Podcast. I'm Jody Sanders. And I'm.

Todd.

Smith. And it's just the two

of us today. We're flying solo,

but we have a topic that's fairly timely

and we wanted to get it out to y'all

because it is currently in commentary

period with the Texas Supreme Court and we

wanted to cover kind of the substance

and give some of our thoughts and make

sure that people have plenty of time to

give their thoughts to the Supreme Court

Rules Committee on this.

And that is the new summary judgment

rule that the Texas Supreme Court

promulgated right at the end of 2025.

Yeah, that's right, Jody.

This is hot off the press.

December 30th of 25 is when the court

issued miscellaneous docket number

25-9106.

Some folks who've been paying attention

know generally about the statutory

changes that came about in the last

regular and one of the special sessions.

I'll just mention those

statutes real quick.

SB 293 was enacted on June 2nd, 2025,

and the HB16 was enacted in August of 25,

although the court's order

says August 26th of 26.

Even the court gets to make

a typo from time to time. I.

Can't fault them. I'm still writing

25 and we're into 26 already.

I will be into March probably. Same.

But to get us back on track. Yeah,

we kind of knew this was coming because

the legislature said Supreme Court,

we want you to have rules in

And so while everybody was enjoying their

time off for between the Christmas and

New Year's at the holiday time,

Supreme Court issued this new

miscellaneous docket order,

which is we've come to know and love

these more than ever before, I think,

in recent times.

And we'll get into the nitty gritty

of the statutes here in just a second.

But with this rule revision,

the court is calling for comments to

be submitted in writing at the email

address listed in the order by February

28th. So we have a little time,

but based on how it went

with the last set of orders,

I think the newest rules of appellate

procedure were actually approved and

adopted before the last day of the

comment period even expired. So-.

Sooner may be better on this.

Be sure and get your comments

in. Yeah, sooner is better.

And we're going to talk

about some potential changes

that you and I have noted

individually. But the interesting

thing about this rule,

and then we'll go back in

time like we like to do,

talk about the statute and

practice under rule 166A up to now.

But the interesting thing about this rule,

it contrasts with some other recent

rule changes that the Supreme Court has

brought about is that it

is a complete rewrite.

They didn't even put out a red line.

And so we'll get into the details there.

I suppose we could give even a little

bit of history, kind of set the stage,

talk about the last time there

was a major rewrite of Rule 166,

which was at the same time that the rules

of appellate procedure were adopted in

September of 1997. And that was

when the Supreme Court for the first

time adopted what will

soon be former Rule 166AI,

the no evidence summary judgment rule.

And that was a big deal at the time.

I won't bore everyone with how long I've

been licensed and all the experience

I've had over the years and

watching these rules rewrites.

I did that with the petition for

review process and new rules there.

But this was all happening around the

same time. If you listen to that episode,

September one of 97,

the court adopted for the first time

a no evidence summary judgment rule,

which again, as we've talked about before,

was intended to bring our rules more in

line with what the federal courts do and

put some structure on how to go

about challenging an opposing party's

case, a claim or defense

on no evidence grounds.

And that is over the last almost 30

years become ingrained in our practice.

And in doing some digging around

for preparing for today's episode,

I was reminded, I'd forgotten

about this, that that change,

adopting no evidence motions

wasn't without some controversy.

And even the order adopting it,

there were a couple of dissents among

the justices at the time for a couple

different reasons. But all that's

now water under the bridge.

We've got complete rewrite

of the rule. And so Jody,

why don't you kind of take us through

the high points of the statute and maybe

what the court's motivation

was? Well, it's not the court,

I guess it really is

motivated. It's alleged.

And that's what we have to remember here

is this new rule comes about because of

these statutes and the

legislature has the power and

authority when it enacts statutes

to tell the Supreme Court, "Hey,

we need you to adopt some rules that

implement this. " And we've seen that over

and over again on procedural issues that

the legislature has gotten involved in.

But let me kick it over to you and let

you kind of set the stage further on what

we're going to talk about and when

we get into the details of the rule.

Sure.

So it started this summer in the

regular session of the legislature

with SB 293 and SB 293 was an

act that had to do with the discipline

of judges, judicial compensation,

reporting of transparency and all of that,

which doesn't seem like a place where you

would put a new summary judgment rule,

but I think it kind of fits into

the overall view of the legislature,

which seems to be the judges need

more accountability and transparency.

And so this is where you find it

right up at the very beginning,

they created a new procedural

statute that at the time in that bill

said that a court had to hear

oral argument or on submission,

a summary judgment motion 45 days

after the response was filed,

which is not the rule as you'll hear.

And then it had to be done and ruled

upon 90 days after the argument.

And then it went through and said that

the court had to make some docket entries

and the OCA had to prepare some reports

all in the service of this idea of sort

of judicial transparency

and accountability.

And I'm not going to go all

the way through that statute,

but another thing that I

thought was interesting when

looking through there that

kind of reinforces this is if you look

at amendments to the government code

relating to the Judicial

Conduct Commission,

one of the things that now subjects

these judges to discipline is will for

persistent and unjustifiable failure

to timely execute the business of the

court, which includes

failure to meet deadlines,

performance measures or

standards or clearance rate

requirements set by statute,

administrative rule or

binding court order,

which I think includes these new

summary judgment orders and statistics.

So it's pretty clear that the court

thought that summary judgments were either

sitting around too long without being

heard or without being ruled upon and went

about to do something.

And if you go further down in the statute,

they've added some requirements

about written reports,

compiling information or district judges

actually have to report how much time

they're spending in court, what they're

presiding over, the judicial duties,

all that kind of stuff.

Those are going to get circulated to

the legislature and members of the

executive branch of government. That

is the background for all of this.

So that got passed. Then

in the second session,

HB number 16 actually amended the new

amendments to the rule even a little bit

further and kind of changed some of the

deadlines and we'll go through in more

detail,

but it changed the setting and the

hearing requirements keyed off of when the

motion was filed, not the response,

and gave the court a little

bit of discretion in their

ability to set it later

out, but no later than 90 days.

So that's where we got,

and that was what the Supreme Court took

to the rules committee to come up with

the new summary judgment rule that we're

going to go through in more detail.

So it's just in the overall view of

judicial accountability and transparency.

Right.

I want to be sure if we haven't that we

mentioned or we identified the statute.

It's Texas Government Code Section 23.303,

and that is as it is currently

the statute that's informing

what the Supreme Court has done,

as Jody just indicated. And

before we get out of the gate,

I wanted to mention a

few resources on this.

We've looked at and that have informed

some of our thinking on where we're

coming from,

aside from both of us having decades

in practice and having handled a

lot of summary judgments over the course

of our career and being intimately

familiar with the way the process has

worked over the last ... Well, for me,

since the original rule

was enacted, and Jody,

a couple of decades for you now too. So

we'll link to these in the show notes,

but very recently the litigation

section of the State Bar of Texas

put out in its very fine

publication, The Advocate,

an article by Gianna Ortiz and Jacob Fane,

it's titled SB 293 and HB16,

A Faster Track for Summary Judgments.

There's some good points and observations

made in that piece,

and it talks about some things that the

Supreme Court might do when it enacts a

rule, knowing that the rule was coming,

but the rule had not yet been

announced when this article came out.

And so it's got some good background

to kind of supplement Jody's point.

And I think it does suggest that, again,

somebody in the legislature decided

that there needed to be stricter

accountability on the part

of our trial judges in Texas.

And that not only includes very broad

sort of reporting or timekeeping

requirements that have not been

imposed up to now on our trial judges,

but also specifically getting the summary

judgments ruled on because one thing

that was a feature, maybe it was a

bug, not a feature of the old system,

was that there really wasn't a deadline.

The court never had a deadline to actually

rule on an MSJ. That was one of the

rare instances, Jody,

in which you would hear about a trial

judge getting mandamus on a summary

judgment ruling that was

simply by failing to rule.

Now I've always questioned the wisdom of,

what do you think your ruling's going to

be if the judge is mandamus to rule? So

it's a delicate matter, shall we

say. But the truth of the matter is,

is that litigants expect they go to

the trouble to prepare an MSJ that it's

going to get ruled on.

And whatever the reason,

some trial judges weren't doing it timely,

litigants didn't always have a

good reason to set the motion,

which was what drove all the deadlines

under the old way. So with that, well,

the other thing I was going to mention

in terms of other resources is Jerry

Bullard did a paper and presented to

the appellate section a few months ago.

Steve Hayes moderated that talk. And Jody,

you were involved in putting

that together, I believe.

I think that Judge Bullard's presentation

is posted and available on the State

Bar Appellate Section's website. And

there was a really interesting discussion.

A lot of questions came about because

there was that weird interim period where

there was a statute that had been enacted

and was effective that imposed one set

of deadlines. And at the time,

we were still in that window

where the other statute, I think,

hadn't become effective,

the amended version.

So there was some real question

about which version applies,

what are the deadlines?

We didn't have a rule.

All that I think is mostly behind us now.

Any MSJ filed now is going to be

the rule that the Supreme Court is

considering is going to be the applicable

rule and it's going to be the process

as it was amended in the special session.

Tentatively starting March 1st

based on administrative order.

Correct. So we've got a little

bit of lag, a few months lag.

And I don't know about you, I just

argued an MSJ today, just this morning.

And my experience in talking to trial

judges about this stuff is that they were

very aware of those deadlines. They

know what's being imposed on them.

And we even had a little chuckle because

the case I was in court on today was

one that was not filed before the

December 13th, I think, deadline.

And so it's handled in that interim

period and the court said, "Don't worry,

I'm not going to take 90 days

to rule." Well, that's good.

He was very astute and in tune

with what the statute requires.

So in talking to other judges too,

I don't know if this has been your

experience, they are well aware of this.

And I think,

but it's interesting because I think

it doesn't get as much discussion among

practitioners. I know there are a

lot of folks that do know about it,

folks like Judge Bullard in the appellate

section and now the litigation section

have done a good job of putting

the information out there.

But I think now that the Supreme

Court has put out its proposed order,

it's time for everybody to

kind of get in line because ...

And that's one of the reasons

why we wanted to record

this episode is because we

have the vehicle to get together and

talk about this and we don't purport to

know everything there is to know about

it at this point, but it's helpful to,

I think, to kind of

start the conversation.

And so with all of that

sort of preparatory stuff,

why don't we get into the

meat and potatoes of the rule?

We'll talk briefly maybe

about the definitions.

I actually do want to talk

about this, so go ahead.

Yeah. Okay. Well, we're

going to kind of, I think,

flip back and forth on who takes

the lead on different topics,

but because it's a brand new rule,

it's not redlined, as I said,

I think this could be

considered dry in other circles,

but I think it's actually beneficial for

us to go through it point by point and

talk about it and talk about

any changes from the old rule,

even though it's not redlined and

how it's going to affect practice.

So why don't I just kind of kick us off

on the definitions? I won't read it,

but basically the court

provides in subsection A,

it defines what a traditional summary

judgment motion is and it defines what a

no evidence summary judgment motion is.

And I think a lot of the language you'll

notice from the new rule overall is

familiar. It comes largely from

either the text of the old rule,

and that specifically would

be referring to 166AC,

which was the old traditional

summary judgment motion rule and AI,

which was the no evidence rule

enacted in 97. In the old rule

166AC,

there really wasn't a label of calling

it a traditional motion within the rule,

but that is what it came to be known as

because of the later amendment to adopt

the no evidence component of

the summary judgment rule.

And then later in 166AI,

it actually was referred

to as a no evidence motion.

So they're essentially just echoing

concepts that we see either within

the previous rule or in the case law

where a traditional motion is one that

claims there's no genuine issue as to any

material fact of a claim or defense on

which the movement would bear

the burden of proof at trial.

I want to talk about that because I'm

curious if you read this the same way I

do, but I read that or could read.

I think there's some ambiguity

here. I read that to say,

if you are the moving on summary judgment,

potentially you may only move on claims

or defenses that you have the burden of

proof at trial. I don't think

that's what they intended,

but I think that is a plausible reading

of this statute is that you can't move

on and maybe you isolate claim from

that requirement of burden of proof at

trial, but even for defense,

does that mean I can no longer move

on my opponent's affirmative defenses?

That doesn't seem like that

could be what they intended,

but I think that's a plausible

reading of this rule.

I agree that I don't think

that's what was intended.

And so load up your email program

and tell the Supreme Court that,

"Did you really mean to remove my

ability to move for summary judgment

affirmative defenses on traditional

grounds?" And so I think that's a great

observation and maybe this is

a byproduct of the fact that

this is the first time in a rule that

the Supreme Court has actually defined

what a traditional motion

is. I think that's right,

that this is something that maybe ought

to be considered and examined further

because they've given us a hot

opinion right out of the gate, Jody,

and I think it's a good one.

On the no evidence definition,

it is literally what you've read in the

case law a million times and also in

166AI, just defining what a

no evidence motion is, is one,

claiming that there's no evidence of one

or more essential elements of a claim

or defense in that instance

on which the other party,

the adverse party has the burden of proof

at trial. I think anybody who's ever

filed a summary judgment motion

in Texas understands that,

knows what that means.

I don't think that's controversial

and I think that's pretty much carried

forward from the laws that existed. To

that point about substantive changes,

we do have in the comment to

of the order. And the court does say

that other than the deadline changes,

which we'll get into,

that the rewrite is not intended

to substantively change the law.

There's your fodder for your

email to the rules attorney,

because I think pointed out is potentially

a change in the law that was not

intended.

Oh, I think that's right.

That's it for the definitions. The next

subsection is about the motion itself,

and so I'll just kind of run through that.

Part one is you can combine both

traditional and no evidence motions.

That's not really anything new. You

have to title it one of three things,

which is interesting that this

is new, but more specific,

either a traditional motion

for summary judgment,

a no evidence motion for summary

judgment or combined motion for summary

judgment. That's more

specific than it was.

I'm not sure substantively

it makes any difference,

but it says an absent or incorrect

title won't get you out of the motion.

You can't use that as grounds to

deny, which ought to be the way.

Kind of sad that they even.

Have to say.

That.

Yeah, I know,

but there's appellate lawyers like us

that are just going to make something out

of it.

One big change procedurally in here is

if you want an oral hearing and you're

the movement, you have to put your

request on the cover of the motion.

And that's the same for

us with appellate briefs,

but that's something that

you've never had to have before.

And so I think practitioners need to

make a note of that because you need to

just start whatever form or draft

or paralegal or anybody you use,

just make sure they know in bold oral

hearing requested needs to go right up

there.

Yeah. I want to come back to that,

but before we move on from the titles,

do you find it interesting the courts

telling us how to title our motions?

I do too. That is oddly specific.

It is oddly specific.

I also find it interesting and I

think probably unnecessary, frankly,

but I also find it interesting

that they chose the title

combined motion instead of hybrid,

which is what we see

all over the case law.

These rules contemplate as a

combined motion for summary judgment,

which I think is correct, typically

referred to as a hybrid motion.

And a lot of the cases talk about

hybrid motions, the strategy of, well,

if you've got what's now going

to be called a combined motion,

which grounds do you pick up first when

you're analyzing this from the court's

perspective?

Probably doesn't change

the law substantively as it

clearly didn't intend to do

that, but I'll just say it's a point

of interest. And then on the cover,

I made that note too about the ...

I guess one thing that we need

to ask ourselves is, I mean,

how often do you use a quote

unquote cover in your MSJs or

responses? Maybe it's more you put

it as not really a subtitle or a

subcaption,

but there's ways to do it on the first

page of your motion without actually

having to use a cover like we do.

Which is my guess is what they mean

is the first page rather than cover.

Right.

Agreed. And as far as the titles go,

I just wonder if maybe that's more of

a notice thing so that somebody can't

later claim, "Oh, well,

I definitely meant to,

this is actually traditional and not

just no evidence or this really was meant

to be no evidence." I guess you have

to just make it clear kind of upfront,

this is either traditional

no evidence or it's both,

and you can't kind of come

back later and say, "Oh, well,

it was a motion for summary judgment."

But what I meant was that's the only

thing I could think of as for that. It

goes on to say for a traditional motion,

you have to state the specific grounds.

No evidence has to state the elements

for which there's no evidence.

That's nothing new from the old

rules. You had to do that. Of course,

if you didn't, then you couldn't get

summary judgment on that. Time to file.

Traditional motion, no real change there.

Anytime after you've appeared or answered,

you can file a traditional

motion for summary judgment.

No evidence still has the same

adequate time for discovery.

So I think there'll continue to be fights

on that and there's plenty of case law

out there as to what constitutes

an adequate time for discovery.

One thing that will change,

we'll talk about in a minute is how you

deal with that and I wonder how much it

works to change in the law.

And then when it's filed,

the clerk has to call the

motion to the court's attention,

but whatever that means, that's a

question for the clerks and the judges,

but the court has to promptly set the

motion for submission or hearing according

to this rule.

And so that is one of the new big changes

is the filing of the motion itself is

going to trigger it to be set for hearing,

not anything you do. So you can no longer

just file your motion and let it sit

there for whatever reason if you're doing

it for kind of an advance of mediation

or you just want to get it on file.

So I think probably what we're going to

start seeing in docket control orders

from courts is there's going to be maybe

an earlier deadline for dispositive

motions than previously because you

can't file this 21 days out from trial

anymore, probably.

I have to think that the way

that the deadline's working here,

it's going to have to be further back.

So I bet you're going to start seeing

those dispositive motion deadlines move

back maybe considerably even.

I would think so. I mean, now that

we've got a statutory time for ruling,

I think that would impact what trial

courts are willing to do in terms of even

entertaining summary judgment motions

too close to trial. Travis County,

as a practical matter,

the courts pretty much won't cure

a dispositive motion within a month

of trial. So it wouldn't

surprise me at all.

One of the things that is pointed out

in the advocate article is that we're

likely to see some updates and

amendments to local rules in addition to

courts dealing with this

through scheduling orders.

That would not surprise me at all.

And I think that's probably a good

move because it would be helpful if the

courts in a specific region get together

and decide how they want to handle

this, let practitioners know.

And a local rule would be a good way

to do it generally. And then of course

docket control orders.

I would suspect that summary judgment

issues now will not be something that

a trial judge will just automatically

bless whatever the parties agree to.

Now that we've got these new requirements,

I think the courts may be a little more

active and involved in what they include

in scheduling orders or docket control

orders when it comes to summary judgment.

It is interesting that the clerk has

to bring the motion to the court's

attention. That's the way it should be.

And then the court's got to set it for

submission. There was some question.

One of the things that was asked in the

advocate article is with the Supreme

Court,

that was something that was suggested

is that there would be new provisions

talking about what the clerks need to do.

The other thing that was suggested was

that the court might also impose some

duties on the parties to come back

to the court and help the court

to comply with the statutory deadlines.

That really doesn't happen in these

rules, in this new rule.

It's basically the responsibility

for staying on track is left with the

court and with assistance from

the clerk. Now, is it a good idea?

This is kind of getting

into the practice tip area,

but is it a good idea to stay informed

or to keep the court informed about what

deadlines are? Certainly while this

transition is going on, absolutely.

And we can talk about that some more

later if we have time, but bottom line,

it's always a good idea to communicate

with the court coordinator about

deadlines coming up.

The one thing that's probably worth

mentioning even before we dive deeper into

the rule is we've had statutes

and rules, statutes primarily,

I'm thinking about the TCPA,

where there have been deadlines for

ruling and it's procedurally kind of

similar because it's a potentially

dispositive motion. There's a roadmap.

There's something of a template for this.

What we haven't seen before is these

reporting requirements tied directly to

data being fed, as you

pointed out, Jody, to OCA,

which is going to be provided quarterly

to the highest echelons of our state

government. And what happens with that

when that data is reported, I don't know,

that's going to be interesting to watch.

That's beyond the full scope

of our conversation today.

But as we say all too often,

it's an interesting time.

It's always an interesting time when the

ledge has come out of session trying to

figure out what the changes

are going to look like.

But that is a change that we'll all

need to kind of keep an eye on, I think.

So back to the response.

So this is where the timing gets

really interesting because the rule

provides subsection D that

except by leave of court,

the non-movement must file a response

within 21 days after the motion is filed.

This is a huge change from the old rule.

They've indicated before you'd file

a motion and the time for filing a

response wasn't triggered at all until

a hearing was set or a submission date

was set.

And then you knew under the old rule

that you had to get your response in

seven days at least before the

submission or hearing date.

So you were able to set a firm deadline

for yourself, but it wasn't triggered.

You knew when your deadline was,

but it wouldn't be triggered until that

magical event of submission or hearing

date.

This change is going to require

non-movements to be very far more

proactive in getting their

responses done and ready than they

were before. One thing I'll note just

in that part of it, the time to file,

we'll talk about the contents in a second.

It does not provide for a different

deadline by agreement of the

parties,

which was the first thing that jumped

out at me there was how much of this can

be modified by agreement of the parties.

Typically, if you're busy,

you're in trial or you've got a couple

of big briefs going on and the idea

of,

I doubt you're going to know when the

moving party's going to file their motion

and then boom,

you got a 21-day deadline triggered

that has to fit within all your other

deadlines as a trial lawyer

or the appellate lawyer

working with trial lawyers.

And so.

That is a really short timeframe. It

is. And I can see a couple of issues.

The first one is it gives people who move

for summary judgment kind of a hammer

to use sometimes perhaps improperly

because you could file a motion,

make your opponent work like crazy,

spend a lot of time, effort, and energy,

and then you could just

withdraw the motion.

And there's nothing to

stop you from doing that.

I don't know if maybe you're trying

to get them into martial evidence or

whatever it is, but you have to file

your motion and ask for a hearing.

And that's really it is the only thing

that starts the clock running for the

other side.

The second part of that is to get

leave of court to extend or change your

deadline. Practically,

I think there are counties where that's

just going to be impossible within 21

days of getting the response and getting

a hearing to get leave of court to

change your ...

So you're still going to

have to be working in the

background and may or may not

be able to get it heard

by the court in time.

Yeah, it does seem like the moving is

really in the driver's seat on this. Yeah,

I like your description. I

don't like the impact of it,

but I think your description is accurate

that this has a potential to really be

a hammer. And the idea of

getting leave of court,

it does seem to be a gap in the rule

where if your only option for extending

that is leave of court, you can't do

it by agreement of the parties. Now,

would the movement agree,

especially one that's motivated for

the reasons that you just went through?

Maybe not,

but it seems like things are going to

get scrunched up in there on that 21-day

deadline. And you're right.

I think maybe you're a movement who could

have done a better job with discovery

and your trial date is lingering on the

horizon or your discovery date's about

to pass and you want a free look at

what the evidence is going to be on your

opposing party's motion,

then file a no evidence motion.

Not saying that's the best thing to do,

but under the rules that's

currently presented,

it does seem like that's an option

that the rule could be used for. Okay.

Contents.

The rule has always been that you had

to bring objections within the time for

responding to an MSJ.

I do find it interesting that

here under subsection D2 contents,

it does say that the response

has to include not only

evidence in support of the

response, but also objections to

the evidence supporting the motion.

So does that mean that you can't

file objections separately now?

That would seem to be an overly

technical interpretation.

I think that's probably right.

Certainly our Supreme Court has not

embraced those types of readings of the

rules, but I take your point.

I don't think that's really what is meant,

but I also find it interesting that

there's not a parallel provision stating

that the motion must include

any evidence. Obviously,

you won't have objections at that

point, but a traditional motion,

maybe it's just an understood,

implied thing in the rule that if you're

going to file a traditional motion for

summary judgment,

you can file it on legal grounds where

they don't necessarily involve evidence.

You can file it on the pleadings

and that wouldn't involve evidence.

But obviously if you're

relying on evidence,

I think you're going to have to include

that with your motion or are you,

because the rule doesn't say that.

The rule doesn't say you have to, but

I think as a practical matter, you do.

And how does that overlay

with the changes in timing?

Going back to the idea of kind

of sandbagging your opponent,

can you file an MSJ and then submit your

evidence only after you get a hearing

set?

It doesn't say the old rule had a very

specific deadline for your evidence

before the hearing, and this

one doesn't necessarily.

So maybe something else for the committee

to consider when they're looking at

revisions to this rule, but that

was just something that struck me.

So this third part of subsection D on

the response talks about when evidence is

unavailable.

I think that's really getting into the

no evidence component where you've seen

folks file motions for continuance

saying there's not an adequate time for

discovery that's passed and so forth.

This doesn't seem to be

anything too earth shattering.

What it says basically is if you're a

non-movement and you need more time to get

But more evidence,

you've got to file an affidavit or

a declaration telling the court why.

And then the court can extend the time

to file a response or deny the motion

without prejudice to permit additional

discovery. That seems reasonable to me.

I think it's interesting.

The only thing that I think is different

is now that is part of your response.

Whereas before you might be able to

file a motion to continue the summary

judgment and get it heard and submitted

before you actually had to file a

response. And now you have to do the

response. And this is part of it,

which seems to be putting a lot of

eggs in one basket. But I don't know.

You have to put all your cards out

there and hope for the best, I guess,

rather than maybe knowing that

you don't have to do a response.

So a reply is permissive, which

I guess has always been the case.

It has to be filed within

seven days after the response,

which is a pretty quick turnaround.

And before there was no real

deadline in the rule for a reply,

you could do one if you had time.

And I guess you really only had seven days

because typically the response was

going to come at the earliest seven days

before the hearing.

But now you have a hard deadline and

it's keyed off of when the response is

filed, regardless of when the hearing is.

It can't raise any new or independent

summary judgment grounds unless there's an

amended pleading. But one

thing that it doesn't say,

and one thing that is not clear from

these rules that you mentioned in the

context of the initial

motion is the old rule,

you couldn't file any new evidence

after 21 days if you were the movant.

This doesn't say you can or can't,

but it just doesn't say. So arguably,

you can't raise a new or independent

ground. That does not, to me,

in its words,

foreclose you filing new evidence in

response or in reply to a response.

Yeah, that's an interesting point.

That's not something that you could have

done under the old rule because of the

hard 21 day notice period.

You had to have it all in.

The non-movant had to have that 21 days

notice of the hearing at a minimum,

and you couldn't go changing

the game in the middle.

So yet not only do we have now expressly

stated in the rule about when you've

got to file a reply. It is different

than previous practice though,

because yeah,

you're right that you only had seven days

to do it as a practical matter if the

response was filed seven days before

the hearing, which would've been timely.

I guess occasionally you would

see responses filed sooner,

but strategically it was, in

my experience, pretty rare.

Yeah. Most of the time

it was seven days before.

That's right.

But I wonder if part of the

reason for this is common,

but maybe not the best practice of

dropping or apply on the court like the

morning of the hearing.

That's how I read all of these deadlines

is the idea might be to give the court

more time to digest since it's

on a clock to rule more quickly.

Yeah.

If you kind of back out from, you've

got to have a hearing within 60 days.

If you have to file within

21 days after it's set,

and then seven days after that,

or 21 days after it's filed,

seven days after that, you're

at about 30 days right there.

Then within 30 days, the

court has to hear it.

I guess the idea is to give the court

as much time as possible to kind of

prepare and put it together, which

I understand and sympathize with,

particularly if it's going

to have to make a ruling.

It's not a change in the law. This part

of the court has added about contents.

I mean, the rule generally,

the law has been that the motion and

the response, but this is a reply,

so we're really talking about the motion,

stand or follow them within

their own four corners.

And so it is interesting that it

does codify what you can do when

the opposing party has

amended the pleading.

And there's a whole body of case law in

that that you have to basically redo the

whole motion just because the opposing

side decided to amend their pleading to

potentially meet some issue

that you've raised in your MSJ.

This expressly allows the moving

party in a reply to address the

amended pleading,

which I think is in practice how it

was done before because of the law that

developed.

It's not a new ground necessarily. And

my recollection of the law on that is if

the ground you asserted in your

motion covered the new pleading,

then you were good. You could

still get summary judgment,

even if there was some tweak

to the theories that maybe

the non-movement made to

try and avoid summary judgment or cast

doubt on whether it should be granted.

So I think in practice, this is

consistent with how things have been done,

second part of the rule

on the reply. Well,

the next part is the

provision on withdrawal,

which was I think part of the statute,

but the rule says in subpart F that any

withdrawal of the motion must be filed

and must identify the date the

motion was filed. And strategically,

withdrawals are going to be a thing

for lots of reasons, potentially.

But going back to what you were

talking about earlier about filing an

early motion and trying to get leverage

early in a case or filing a motion

maybe shortly before mediation

and then case doesn't settle. And

then what happens if you're really

not ready to advance the motion?

So the rule is made clear there's a

mechanism for filing a withdrawal and it's

actually a separate filing.

You can't just not take action.

Cancel the hearing.

Right. So just thinking

through this, I mean,

what happens if you're going to get

notice of your hearing and maybe you

intended to withdraw the motion,

but you just didn't. And remind me,

are we going to be allowed to withdraw

a motion anytime before the submission

date?

It doesn't say. I don't think.

Yeah, I don't think it does either.

And I think that's the implication.

Yeah, I think so too.

I guess the practice pointer there is

don't make the court go through the

exercise of setting a hearing and starting

to prepare for a hearing and then at

the last minute withdraw your motion.

If you know you're going to withdraw it,

I think the better practice would be

advise the court that you're going to

withdraw it and then go

ahead and get that on file.

I think the other part of this is

you can always bring it again later.

If you filed it prematurely and you're

not really ready to proceed on it for

whatever reason,

withdraw it before you run up against any

of the timeframes that the court needs

to be mindful of.

And when you've got your ducks in a row

and you've got your evidence or whatever

ground you want to proceed on,

then you can always rebring it.

It's the way that I read the rule.

I think that's right.

The next portion is the hearing

deadlines and the ruling deadlines.

And this is, again,

one of the big changes that the

statute actually brought about.

So the first part of the rule is a hearing

or submission date can't be within 35

days of the filing.

So instead of the 21 days notice

you might have gotten before,

you now get at least 35,

which makes sense when you build in the

fact that you've got to have at least 28

days worth of time from the filing of

the motion to be able to get all the

replies in.

But the court has to set the motion for

hearing or submission within 60 days

after filing, unless the

court's docket has an issue,

there's some kind of good cause

shown, or if the movant agrees.

So there's a little bit of leeway,

but not a whole lot. It's kind

of like the TCPA in that respect.

You've got to have it 60 days or

maybe you can push it out to 90,

but 90 appears to be the

hard deadline on this.

Yeah, this is where it is sort

of reminiscent of the TCPA.

I remember when that all first came

about and for a couple years after that,

there was a lot of pearl clutching about,

what are we going to do

about these deadlines?

And it seems to have worked

itself out over time.

I suspect it'll be the same for this rule.

Yeah, I think so too.

The court can reset it,

but it has to be within the timeframe.

So within your 60 days

or maybe your 90 days,

the court does have the option to

reset it. You've got to, by rule now,

which is, I think most local

rules cover this, but by rule 166,

you have to submit a proposed order

before the submission or hearing date,

which makes sense. Can't

have oral testimony at the

hearing. That's nothing new.

And the court has to record in its

docket the date the motion was heard or

submitted, which again, practically

I don't think is much different.

It's just something that's in the

rule, whereas it wasn't before,

which has to do with the reports.

Yeah, that was statutory and right.

I think that does get into the reporting

aspect of it. Okay. Well, standards.

I mean, I look at this and I think,

and maybe it's nice to have some

of this recited in the rule.

First part is grounds.

This rule says that judgment won't

be granted except on the grounds,

traditional or no evidence grounds is

the way it refers to the rule internally

by number, but the grounds stated are B2C,

which is traditional motion and

B2D, which are no evidence motion.

I'm sure what other grounds you would

bring summary judgment, but that's it.

So I, again, fine to state this. I'm

not sure it's necessary, but okay.

And here we get into the standards

that the trial courts must apply.

I think this will make its way into

the appellate opinions too, eventually,

and appellate review under the standard

of review. But the traditional motion,

the new provision in the rule says the

court must grant their traditional motion

if the movement shows,

this is mirror image of 166AC as it exists

today. And you have to grant it, if the

movement shows, except as to damages,

there's no genuine issue

as to any material fact,

and the movant is entitled to judgment

as a matter of law and the issues

expressly set out in the motion.

So we're really getting it drilled into

our head that you can't go outside the

motion and grant summary judgment

on grounds outside the motion.

And here's the standard that I think

has been followed for as long as there's

been summary judgment in Texas.

But the recitation on the standard for

no evidence is the same as we've read.

And I think it actually

carries over almost verbatim,

certainly the same concept.

Soon to be former rule 166AI,

which is the court must grant the new

evidence motion unless the responding

party produces summary judgment evidence

raising a genuine issue of material

fact.

I think that's right. The only thing

I note here that's slightly different,

and again, I think this is

probably an unintended change,

is in the traditional motion standard

where it says, if you show that,

except as to damages, there's no

genuine issue of material fact.

The old rule said as to the amount

of damages, they took out amount.

And this almost,

I don't think they mean you can't

move for summary judgment on damages,

but arguably that's how this rule now

reads when you take out the word amount

rather than just damages more generally.

Yeah. I can't really think of any other

potential consequence to that. Well.

There are grounds to move for summary

judgment on damages that are not the

amount. It could be the wrong measure.

It could be a lot of different things.

But again, I doubt that

that was an intended change,

but it could be read that way. So I'll

make sure to put that in my email.

There you go.

Yeah. I'm sure that in part,

and knowing that there's not an intention

to change the law substantively,

maybe it was just a matter of somebody

thought that amount of didn't add

anything substantively,

but I see your point.

I think amount of did add

something to the old rule.

So I'll be curious to see how that

turns out I've comment periods over.

If we're done with standards,

then the next provision has to do

with the ruling and it encompasses

the rule. It says the court has to

sign a written ruling on the motion,

says it has to file it with

the clerk, which that's good.

We've talked over a period of time about

what happens when things aren't filed

and notified.

And this does say that the court has to

provide the ruling to the parties within

90 days after the hearing or written

submission date. We've got now some fail

states.

My take on this is the key

part of it is providing

the ruling to the parties

and also obviously within

the 90 days as the statute

requires,

but before there wasn't a provision

requiring the court to actually

provide the ruling to the parties,

we've now got some fail safes built into

our e-filing system through Research

Texas where everyone should be getting

notices of all court orders now.

And I'm not sure how much

we've ever talked about this,

but you may have noticed that you're

getting redundant emails from not only you

getting your e-file e-service emails,

but you're also getting emails from

research texts that are case notices.

And that was one of the things that

that was intended to help with was

situations where the courts weren't

providing their judgments or orders to

parties.

There was substantive rights being

lost as a result of delay. You had some

actions you could take,

306A motions out of time,

but the idea is this is not really what

this rule change is completely about.

I think it's designed really

to meet the statutory deadline,

but putting in that language there about

providing the ruling to the parties

within the 90 days, I do like to see that.

I've always been uneasy about parties

not being notified of court actions.

I'm glad to see that between this and

the way that we've got our e-filing

system and research text is set up

now, you got to look at your email,

but you're going to get

notice of court orders.

The next one is kind of an interesting

change that does not really have a

counterpoint in the old rule,

and it is the use of discovery

not otherwise on file.

So discovery that is not on file, which

I assume to mean in the court's file,

and I don't know if that means just

filed someplace else or if it means

certificates of written discovery or what,

but you can use it as your summary

judgment evidence, which is nothing new,

but there have to be copies of the

material or appendices containing the

evidence or a notice containing specific

references to the discovery or specific

references to other instruments that are

filed with a statement of intent to use

the specific discovery of summary judgment

evidence either at the time of the

motion, if you're using

it to support your motion,

or at the time the response is filed,

if it's going to be used to oppose it.

So this is an interesting change and I'm

not sure I'd completely understand how

it's going to work because I would think

as a practical matter,

if it's discovery that's not on file and

you're the movement or the respondent,

you would have to file it with

the court because otherwise,

how would the court be able to see the

evidence to evaluate whether or not

there's genuine issues of material fact?

So this was an interesting change that

I don't know that I've fully absorbed

yet.

I don't think I have.

This made me think of recitations in the

summary judgment motions where you are

referring to other

materials that are on file,

not necessarily attached to your

motion or to your response, I think.

But I think you're correct that

this is something different.

And I think I agree that, well,

if it's not otherwise on file,

you need to get it on file.

And why you would do it,

I'm not sure I really

understand the purpose of this

because you have to file it

with a statement of

intent as you pointed out.

Why wouldn't you just attach it to your

motion and incorporate it as an exhibit?

The finer points of that I think are

not registering with me just yet.

Me neither, but just be

aware that that exists.

And it does the subsections and

subparts of that rule do clarify.

Maybe it is kind of an appendix

idea because if you turn the page,

that was at the bottom of page five.

At the top of page six of the order,

it does clarify that these materials

have to be presented at the time the

motion is filed if it's used to support

the summary judgment or at the time the

response is filed.

So I think that avoids any implication

that you could file your motion.

Maybe this answers my question

from a little while ago.

Did you file your motion and just not

ever file your evidence until sometime

later? Well, this seems

like that clears it up.

A little bit, but this is only

limited to discovery not on file,

which you use plenty of other things

to support your summary judgment motion

that may or may not be

discovery. I don't know.

It's one that I don't know

that I fully understand yet,

but I guess we'll figure it out.

The subpart K, all requested

relief not granted.

It's something that's brought over.

It was in another form and

it was the old rule 166

case not fully adjudicated on motion.

And I think the intent is to basically

bring forward the concept that was in the

old rule. Although it does delete one

of my favorite phrases in rule 166A,

which was that the court

could interrogate counsel.

They should leave that in.

You know, that's an old

vestige of ... I don't know.

I haven't been interrogated by the

court too many times in my career,

but I think that served a good purpose.

It was basically trying to get at,

all right,

here's what I am going to give you on

summary judgment and let's talk about

what's left.

And I think that that's the same intent

being carried forward here in this new

version,

which basically just says if the court

doesn't grant all the relief that the

motion requests,

then the court may ascertain what

material fact issues exist and then

identify those issues or identify

the facts that are established as a

matter of law and then figure out

what else needs to be addressed.

So I think that it works as a practical

matter the same as in the old rule.

And maybe we haven't said this explicitly,

but one thing that this rewrite does

accomplish is there's a few archaic

phrases in the old 166A. There's a few

therewiths and that sort of thing that we

don't see in this rewrite.

And so I think the court probably

could still interrogate counsel in its

discretion.

Yeah.

I'm pretty sure I've been interrogated

in all kinds of proceedings in court that

are not summary judgment and just because

the rule doesn't specifically say it

doesn't mean it can't happen.

That's right. That's right.

So I think in part what this

means is you can still have,

the court may grant your relief in part

and there may be parts left over that

still have to be resolved,

but this is saying that the court

may issue an order specifying facts

established as a matter of law and

direct other appropriate proceedings.

So you'll know what's left of your case

that needs to be tried or otherwise

resolved at the end of this

summary judgment proceeding.

I think that's right.

Form of affidavit looks to me to be

just effectively a similar kind of

modern rewrite of 166AF. There's

not really much different there.

They delete the sentence that says

defect in the form of affidavit or

attachments won't be ground for reversal

unless specifically pointed out by

objection. I can't imagine that the

omission changes that rule at all.

I think there's a pretty good body of

case law from the Supreme Court that says

defects and substance don't have to be

objected to, but defects and form do.

So I don't think the fact that the rule

says it or doesn't is likely to change

that.

I agree with that.

And the court was probably wise to not

try and get into what is a substantive

defect or a form defect

within the body of the rule.

The case law is very well

established on that too.

Although it's not always as black

and white as you would think.

Well, that's true, but ...

Yeah. The affidavit, the last

part of the new rule is subpart M,

and it has to do with affidavits or

declarations submitted in bad faith.

I think substantively, this is

the same as in the old rule.

It's subpart H under the old

rule. It's basically don't do it.

And if you do,

you can be held responsible

for the other side's expenses,

including attorney's fees and possibly

could be held in contempt or subject

to other sanction. So that is

hopefully no one listening to our show.

This something we even need to have a

lecture on. It just carries forward the,

I think, previous practice,

which is I think a good rule.

You shouldn't be able to contradict

your clear deposition testimony by

submitting an affidavit that goes

directly against what you said in sworn

testimony.

Although I do think that that

is a little bit ... I mean,

that is a sham affidavit,

which I'm not sure is the same thing

as a bad faith affidavit. It may be.

It may be so bad that

it's bad faith, but-.

Oh no, you're right. That is

true. They could be the same,

but it isn't necessarily ... Yeah,

it isn't necessarily the same.

The court does suggest what bad faith

is. Bad faith could be solely for delay,

but that's maybe something other than

because it's separately set out in the

rule, bad faith can be other

things, increasing costs,

taking frivolous positions,

whatever they may be.

There is a distinction between a sham

affidavit and a bad faith affidavit.

Sham affidavit could be bad faith, but

bad faith wouldn't necessarily be sham.

No, definitely.

All right. The comments

from the previous revisions,

1990 and 1997 remain in the rule because

the first couple are, they're

I think mostly for ...

They're sort of historical artifacts above

everything else because of the nature

of the rewrite.

And the only comment to the 2026

change is it's rewritten to implement

government code section 23.303

and to modernize the rule,

which is good.

And then it recites that there's no

intent to substantively change the law.

We're running a little bit long,

but what are the takeaways beyond

just having gone through the new rule

structure that we come away with from

this conversation today or just the fact

that we're now seeing this change?

I think to me, the takeaway,

the big one is make sure you're on top

of summary judgments when you get one,

particularly if you're the

respondent. In the old days, okay,

you got a summary judgment motion, but

until you get the notice of hearing,

it is what it is. But now

your deadline starts to run,

I think even if it's not set for hearing,

it's just from the date that it's filed.

And so I think it's important to start

calendaring your deadlines the minute you

get it. And I'm not sure that

we had to under the old rules,

so make a file summary judgment and it

may be months and months before it even

gets set for a hearing or never,

frankly. So I think stay on top of that.

And I think about what you would move

for summary judgment on or what you

anticipate the other side to move for

summary judgment on early so you can kind

of put your stuff together and be in

our position to respond as quickly as

possible.

Yeah. I think the changes do advise

toward using summary judgment motions

judiciously. I don't think you want to

get into a situation where you just,

it's common practice for you

to withdraw your motions.

I think both of us would probably say,

if you've got grounds to bring it,

bring it.

But keep in mind that you are starting

a clock for the trial court that

you don't want to reset the clock too

many times or maybe the court gets

tired of you filing and withdrawing

summary judgment motions. But to me,

that's the biggest overall takeaway to

all this is for the first time we've got

our trial judges on the clock when

it comes to summary judgment motions.

And as we've said, we've got some

experience with this under the TCPA.

All the trial judges, they've

coped with that and it's been fine,

but what we haven't had are the reporting

requirements that come along with this

legislation. So that's going

to be something that time

will tell what the result

of that is.

But I think you have to be strategic

with your summary judgment filings.

What strategy turns out to be

legitimate versus not legitimate?

As we pointed out here today,

there are some uses of it

might not be the intended use.

That's right.

But there's always going to be someone

who's going to test the limits and that's

how the law evolves. So we're making no

endorsement of any particular strategy.

We're here to just point out stuff we see.

That's right.

And I'm having fun with some of the rule

change stuff that we've been able to do

lately.

I think it gives us a reason to get

together and just talk through stuff and

hopefully people find what we have to say

and the questions that we ask helpful.

If you've got other things that you'd

like to see us talk about though,

let us know.

Reach out to one of us and we'll

consider that for a future episode.

Anything before we sign off today, Jody?

I don't think so. February 28th

is the deadline for comments,

but I'd say sooner is better than

later. So get them in if you have them.

Yeah. The ledg did say this was not

really optional for the Supreme Court.

Even though the order says the court

expects the amendments to take effect on

March 1,

I believe the statute says the court

will adopt new rules or a new rule

by March 1. So I don't think

that date's going to change.

There will be a rule. It

may not be exactly this,

but it's going to be

something similar, I think.

So yeah, get those comments in and yeah,

definitely let your voice be heard

because as we've pointed out here before,

I know the court does

consider those comments.

Those are discussed actively

in the Supreme Court Advisory

Committee and brought

to the court's attention. As

we've pointed out here today,

I think there are a few things that

could be revisited and clarified,

so get those comments in.

All right. Well, with that,

I think that's it for this episode

and we'll see you next time.

That's right.

Hope everyone has a great start to 2026

and we'll be seeing you again soon.

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