Mechanism 33
Continuance, and buying time on a summary judgment
How do you get more time before trial or before a summary judgment hearing in Texas?
Two different mechanisms that people run together. A trial continuance under Rule 251 requires sufficient cause supported by affidavit, and Rule 252 says exactly what the affidavit must contain. More time on a summary judgment is not a continuance at all any more — since March 2026 it is Rule 166a(d)(3), and the relief menu is different.
By John P. Henry · Tex. R. Civ. P. 251, 252; Tex. R. Civ. P. 166a(d)(3) · Reviewed 2026-08-02
The authority
If the nonmovant needs additional time to secure evidence in support of the response, the nonmovant must file an affidavit or declaration specifying the reasons why the nonmovant cannot present facts essential to justify its opposition.Tex. R. Civ. P. 166a(d)(3)
Tex. R. Civ. P. 251, 252; Tex. R. Civ. P. 166a(d)(3)
When it applies
The witness who cannot be found, the discovery the other side has not produced, the expert designated late, counsel substituted a month out. Also the summary judgment set before the discovery that would answer it has happened.
How it is proved up
- For a trial continuance, track Rule 252 line by line: that the testimony is material and why; that due diligence was used to procure it, stating the diligence; the cause of failure if known; that it cannot be procured from any other source; the absent witness’s name and residence and what is expected to be proved; and that it is not sought for delay only but that justice may be done.
- Note the first-application concession — on a first application you need not show the testimony cannot be obtained from another source.
- For a summary judgment, file the affidavit or declaration Rule 166a(d)(3) calls for and ask for the specific relief you want: extension of the response deadline, denial without prejudice to permit further discovery, or another appropriate order.
- Do not call it a continuance in a summary judgment context. The rewritten rule does not use the word, and the old 166a(g) is now 'Hearing or Submission'.
- Show what the discovery would produce, not merely that it is outstanding. The affidavit has to explain why you cannot present facts essential to the opposition.
What defeats it
- An unsworn motion, which Rule 251 does not permit.
- An affidavit that recites diligence without stating it.
- A record of prior continuances in the same case.
- A summary judgment respondent who had adequate time and did nothing with it.
Where I have used it
A signed order granting continuance of trial in a defended collection matter in the Bexar County courts, obtained while discovery and depositions were still running — the ordinary and unglamorous use, and the one that keeps a case in a posture where it can still be won.
Questions
Does a motion for continuance have to be verified in Texas?
Yes. Rule 251 permits a continuance only for sufficient cause supported by affidavit, by consent of the parties, or by operation of law.
What must a continuance affidavit say when a witness is missing?
Under Rule 252: that the testimony is material and showing its materiality; that due diligence was used to procure it and what that diligence was; the cause of failure if known; that the testimony cannot be procured from any other source; the witness's name and residence and what is expected to be proved; and that the continuance is not sought for delay only.
How do you get more time to respond to a summary judgment in Texas?
For motions filed on or after 1 March 2026, by filing the affidavit or declaration required by Rule 166a(d)(3). The court may extend the response deadline, deny the motion without prejudice to permit further discovery, or issue another appropriate order. The former provision was Rule 166a(g).