Mechanism 10
Motion for leave to file summary judgment out of time
Can I still file a summary judgment motion after the local-rule deadline has passed in Texas?
Often yes, with leave. Rule 166a(c) requires the motion to be filed and served at least 21 days before the hearing, and local rules commonly impose an outer deadline measured from the trial setting. Blowing that deadline does not end the motion — but the request for leave has to be candid about the reason and give the court a judicial-economy reason to grant it.
By John P. Henry · Tex. R. Civ. P. 166a(a), (c); local rules · Reviewed 2026-08-02
The authority
Except on leave of court, with notice to opposing counsel, the motion and any supporting affidavits shall be filed and served at least twenty-one days before the time specified for hearing.Tex. R. Civ. P. 166a(a), (c); local rules
Tex. R. Civ. P. 166a(a), (c); local rules
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.
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 the full 21 days, 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.
- Get the hearing set. Leave granted without a setting accomplishes nothing.
What defeats it
- A trial setting too close for the 21-day notice period without a continuance.
- 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?
At least 21 days before the date specified for hearing, under Rule 166a(c), except on leave of court with notice to opposing counsel. The 21 days is notice to the respondent and is calculated from service.
Can a court consider a late-filed summary judgment response?
Yes, with leave. A response filed later than seven days before the hearing requires leave of court, and a court's consideration of it may be inferred from the record in some circumstances.
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.