Summary Judgment in Texas Business Litigation

By Stephen W. Davis · Last updated July 24, 2026

Summary judgment is the most common dispositive motion in Texas business litigation. Cases get to summary judgment after discovery has developed the evidentiary record. The motion tests whether the case can survive to trial based on the evidence that exists or, through the no-evidence procedure, based on whether evidence exists at all on specific elements.

Texas Rule of Civil Procedure 166a provides two distinct mechanisms: traditional summary judgment under 166a(c), which requires the movant to negate elements with evidence, and no-evidence summary judgment under 166a(i), which shifts the burden to the non-movant to produce evidence on challenged elements. The two have different requirements and different success profiles, and the strategic implications differ with them. This page works through both, the evidence rules that govern them, and when each one is worth filing.

Traditional summary judgment under Rule 166a(c)

The traditional motion requires the movant to establish:

• No genuine issue of material fact exists on the matter being challenged.
• The movant is entitled to judgment as a matter of law.

The movant must support the motion with summary judgment evidence, affidavits, deposition testimony, admissions, documents, and similar materials. The burden allocation:

Plaintiff as movant. Must conclusively prove each element of the cause of action. Difficult to achieve before trial in most cases because each element typically has fact components.

Defendant as movant. Must either (i) negate at least one essential element of the cause of action with evidence, or (ii) conclusively establish each element of an affirmative defense.

The traditional procedure is the appropriate mechanism for:

• Cases where the relevant facts are undisputed and the case turns on legal interpretation.
• Cases where evidence conclusively establishes an affirmative defense.
• Cases where the movant can demonstrate a complete absence of evidence supporting an essential element.

Traditional summary judgment requires the movant to come forward with evidence first. The motion document includes the evidence and arguments establishing the entitlement to judgment as a matter of law.

No-evidence summary judgment under Rule 166a(i)

The no-evidence motion was added to Texas summary judgment practice in 1997 to provide a more efficient mechanism for testing whether the opposing party has evidence on specific elements.

The procedure:

Movant’s burden. Identify specific elements of the opposing party’s claim or defense and assert that no evidence exists to support those elements. The movant need not produce evidence; the motion is essentially a challenge requiring the opposing party to produce evidence.

Non-movant’s response. Must produce summary judgment evidence raising a genuine issue of material fact on each challenged element. Failure to produce evidence on any challenged element results in summary judgment on that claim or defense.

Timing. No-evidence motions can only be filed after adequate time for discovery. The “adequate time” requirement is contextual, typically not until after the discovery period has substantially progressed.

The no-evidence procedure is particularly useful for:

• Multi-element claims where the non-movant’s evidence may be weak on specific elements.
• Cases where discovery has been completed and the non-movant has had opportunity to develop the record.
• Specific elements that are typically difficult to prove, such as causation in fraud cases or specific intent in certain torts.

Many Texas summary judgment motions combine traditional and no-evidence challenges, addressing different claims or elements through whichever mechanism best fits.

Summary judgment evidence

The evidence must be admissible at trial in the form presented. Acceptable evidence:

Affidavits and declarations. Sworn statements from witnesses with personal knowledge. Affidavit testimony must be based on personal knowledge, must show competence to testify, and must be admissible if given as live testimony.

Deposition testimony. Excerpts from depositions in the case, with appropriate references to the page and line.

Admissions. Responses to requests for admission, which are deemed admitted unless properly denied within the response period.

Documents. Authenticated documents, with the authentication established through affidavit or other admissible means.

Discovery responses. Answers to interrogatories and production responses.

Public records. Certified or sworn copies of public records.

Business records. Records meeting the business records exception to hearsay under TRE 803(6).

Common evidentiary problems:

• Hearsay within affidavits that should be excluded.
• Conclusory statements without supporting facts.
• Unauthenticated documents.
• Documents inadequately incorporated into the record.
• Affidavits from witnesses without personal knowledge.

The opposing party can object to specific evidence on evidentiary grounds. Successful objections eliminate the challenged evidence from the summary judgment record.

Procedural mechanics

Filing deadlines. Traditional motions can be filed at any time. No-evidence motions require adequate time for discovery.

Response deadlines. The non-movant must file the response at least seven days before the hearing date. Late responses are subject to exclusion.

Reply briefs. Generally allowed by local practice but not required by Rule 166a.

Hearing requirements. The court must give the non-movant 21 days’ notice of the hearing date for traditional motions (specific local variations apply). Hearings are oral argument without testimony, the court rules on the paper record plus arguments.

Ruling timing. The court rules at or after the hearing. There is no statutory deadline for the ruling, though courts typically rule within weeks.

Partial summary judgment

Summary judgment can dispose of:

• The entire case (all claims and defenses resolved).
• Specific claims (with other claims proceeding to trial).
• Specific elements of claims (with other elements proceeding).
• Specific defenses (with the underlying claim proceeding).
• Specific issues that will affect trial.

Partial summary judgment is particularly useful for narrowing the issues at trial. Cases that go to trial after partial summary judgment are typically shorter, simpler, and more predictable than cases where every claim and defense remains in play.

Strategic considerations

When to seek summary judgment:

Strong legal questions on undisputed facts. Cases that turn on the meaning of contracts or statutes rather than disputed facts are summary judgment candidates.

Limitations defenses. When limitations bars are apparent from the record, summary judgment efficiently resolves the case.

Specific weak elements. No-evidence motions targeting specific elements that the opposing party may have failed to develop in discovery.

Cases where trial would not improve outcome. When the movant is likely to win at trial and avoiding trial saves substantial cost.

When to defer summary judgment:

Cases where additional discovery would change the analysis. Filing summary judgment before completing discovery prematurely tests the case.

Cases where credibility determinations matter. Summary judgment is not the appropriate mechanism for cases that turn on witness credibility, those need trial.

Cases where settlement leverage benefits from trial preparation. Sometimes pushing toward trial produces better settlement terms than seeking summary judgment.

Cases with fact-intensive disputes that fairly need jury resolution. Forcing summary judgment in genuinely contested cases wastes resources and produces denial.

Appellate review

Summary judgment grants are generally not appealable until final judgment in the case (after disposition of all claims and parties). Denials are generally not appealable at all except in specific contexts.

The appellate review standard for summary judgment grants is de novo, the court of appeals reviews the record without deference to the trial court’s analysis. This makes summary judgment particularly valuable in cases that are likely to be appealed; the appellate court applies the same standard the trial court applied.

Winning the case on the paper record

We pursue summary judgment when the record supports it, because a case resolved without trial saves substantial cost and produces a cleaner outcome than a jury verdict. We use no-evidence motions where they bite hardest, after discovery has closed and the opposing party may not have built adequate proof on specific elements. We are equally prepared to defend one, and a claim that survives summary judgment is usually well set up for trial. And we sequence it with the rest of the motion practice, running Rule 91a, TCPA, and summary judgment in order as different parts of the case ripen.

The de novo standard on appeal is the quiet reason this motion matters so much: a summary judgment that holds up is reviewed without deference to anyone. Win it on a clean record and you have won it twice.