Mechanism 21
Defeating summary judgment
How do you defeat a motion for summary judgment in Texas?
Raise a genuine issue of material fact on every ground pleaded, with competent evidence, within the response deadline. Filing a motion and defeating one are different skills — the response has to address each ground separately, because a ground left unanswered stands. In Salt & Pepper Restaurants v. Tight Ends Sports Bar & Grill, 56th Judicial District Court, Galveston County, the plaintiff's motion against the defenses and its separate motion on the counterclaims were both denied the same day.
By John P. Henry · Tex. R. Civ. P. 166a · Reviewed 2026-08-02
The authority
Issues not expressly presented to the trial court by written motion, answer or other response shall not be considered on appeal as grounds for reversal. — Tex. R. Civ. P. 166a(c)Tex. R. Civ. P. 166a
Tex. R. Civ. P. 166a
When it applies
Any dispositive motion set against your client. The response window is short — seven days before the hearing without leave — and the work is front-loaded into assembling admissible evidence rather than writing.
How it is proved up
- Enumerate the grounds from the motion and answer each one under its own heading. Nothing gets skipped.
- Attach competent evidence — declarations with personal knowledge and underlying facts, authenticated documents, deposition excerpts. A scintilla is enough, but it must be admissible.
- Object in writing to the movant's evidence and set the objections for the same hearing, so the record is not one-sided.
- Where discovery is genuinely incomplete, move for continuance under 166a(g) with a verified explanation of what is outstanding and why it matters.
- Where the motion is a no-evidence motion, check first whether it identifies elements with the specificity the rule requires. Many do not.
What defeats it
- Conclusory declarations, which are no evidence at all.
- Missing the deadline. A late response requires leave, and leave is not guaranteed.
- Failing to address a ground, which forecloses complaint about it later.
Where I have used it
Salt & Pepper Restaurants v. Tight Ends Sports Bar & Grill · 56th Judicial District Court, Galveston County. Plaintiff moved against my client's defenses and, separately, to dispose of the counterclaims outright. Both motions denied the same day.
Questions
How long do I have to respond to a summary judgment motion in Texas?
The response is due not later than seven days before the day of the hearing, except on leave of court. The motion itself must be served at least 21 days before the hearing.
How much evidence is needed to defeat summary judgment in Texas?
More than a scintilla — evidence that rises to a level enabling reasonable and fair-minded people to differ in their conclusions. The evidence is viewed in the light most favorable to the non-movant.
What happens if I do not respond to one of the grounds in the motion?
That ground stands unchallenged. On appeal, a non-movant generally may not raise issues not expressly presented to the trial court in a written response, other than the legal sufficiency of the movant's own summary judgment proof.