Mechanism 24

Summary judgment filed out of time

Can I still file a summary judgment motion after the deadline has passed in Texas?

Usually yes, and since March 1, 2026 the question has changed shape. The rewritten rule has no leave-of-court mechanism for the motion itself — a traditional motion may be filed at any time after the nonmovant has appeared or answered unless a court order sets a deadline. Lateness is now a scheduling-order problem, not a rule problem, and the remedy is a motion to modify the scheduling order rather than a motion for leave.

By John P. Henry · Tex. R. Civ. P. 166a(b)(3), (d)(1); scheduling orders · Reviewed 2026-08-02

The authority

Unless a deadline for filing is set by court order, a party may file a traditional motion at any time after the nonmovant has appeared or answered.Tex. R. Civ. P. 166a(b)(3)(A), effective March 1, 2026

Tex. R. Civ. P. 166a(b)(3), (d)(1); scheduling orders

When it applies

Deadlines missed for a reason the court will find sympathetic — settlement negotiations that consumed the window, late-produced discovery, a substitution of counsel. Least available where the movant simply did not get to it. On a motion filed before March 1, 2026 the former rule governs, and the request really is one for leave under the old 166a(c); on a motion filed after, it is a request to move a date the court itself set.

How it is proved up

State the actual reason without dressing it up. Courts grant leave to lawyers who are straightforward and deny it to lawyers who are not.
Give the judicial-economy argument: a motion that could dispose of the case is worth hearing even late, because the alternative is a trial setting consumed by an issue of law.
Show the absence of prejudice — the respondent still gets its full response period, twenty-one days from the filing under the current rule, and the trial date does not move.
Attach the motion to the request so the court can see it is substantial rather than a delay tactic.
Watch who is responsible for the setting. Under the former rule the movant chased it. Under Rule 166a(c) the clerk must call the motion to the court's attention on filing and the court must set it — which is a real change in who bears the risk of a motion that goes quiet.

What defeats it

A trial setting too close to absorb the response period without a continuance. Under the current rule no hearing or submission date may be set within thirty-five days of filing, which is a longer runway than the old twenty-one-day notice period and can be decisive near a trial date.
A pattern of missed deadlines in the same case.
A local rule the court treats as jurisdictional in practice, which some do.

Where I have used it

Retail tenant matter, County Court at Law No. 4. The 210-day window closed during settlement talks. Leave requested on the record, hearing obtained, case settled and paid by cashier's check before the motion was reached.

Questions

How many days before the hearing must a Texas summary judgment motion be filed?

That is the former rule's question. Under Rule 166a(c) as it read before March 1, 2026, the motion had to be filed and served at least 21 days before the hearing except on leave of court. The current rule reverses the frame: deadlines run forward from filing, not backward from a hearing. No hearing or submission date may be set within 35 days after the motion is filed, and the court must set the motion within 60 days of filing — 90 if its docket requires, on a showing of good cause, or if the movant agrees. Which rule applies depends on when the motion was filed.

Can a court consider a late-filed summary judgment response?

Yes, with leave. Leave of court is one of only two ways to file a response late — the other is agreement of the parties — and the same is true of a reply. Rule 166a(d)(1), (e)(1). Note where leave survived and where it did not: the current rule requires leave for the response and the reply, and provides none at all for the motion.

Is there still a motion for leave to file summary judgment late in Texas?

Not under the rule, for motions filed on or after March 1, 2026. Rule 166a(b)(3)(A) permits a traditional motion at any time after the nonmovant has appeared or answered unless a deadline is set by court order, and 166a(b)(3)(B) permits a no-evidence motion after adequate time for discovery. What makes a motion late is therefore a scheduling order or a local rule, and the relief is a motion to modify it. For motions filed before that date, the former 166a(c) leave practice still governs.

Does filing a motion for leave stop the trial setting?

No. Leave to file does not continue the trial, which is why the request should address how the motion can be heard without moving the setting.