Mechanism 08
Unauthenticated exhibits and unsworn argument
Do exhibits attached to a summary judgment response have to be authenticated in Texas?
Yes. Documents attached to a response are not evidence until someone with knowledge authenticates them under Tex. R. Evid. 901, and facts asserted only in the body of a brief are argument of counsel, not proof. In Johnson & Farst v. Carnes, 267th Judicial District Court, DeWitt County, the exhibits were struck by separate order, the unanswered grounds were conceded, and judgment was rendered on the whole case in March 2026.
By John P. Henry · Tex. R. Evid. 901; Tex. R. Civ. P. 166a(f) · Reviewed 2026-08-02
The authority
To satisfy the requirement of authenticating or identifying an item of evidence, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is.Tex. R. Evid. 901; Tex. R. Civ. P. 166a(f)
Tex. R. Evid. 901; Tex. R. Civ. P. 166a(f)
When it applies
Nearly every under-resourced response. The pattern is a stack of emails, invoices and screenshots attached to a brief with no affidavit, plus a narrative in the argument section that no witness ever swore to — and grounds in the motion that the response simply does not address.
How it is proved up
- Object to each exhibit by number and state the defect: no sponsoring affidavit, no custodian, hearsay without an exception, no personal knowledge.
- Separately identify the factual assertions that appear only in the brief and point out that no declaration supports them.
- Enumerate the grounds the response never reached. Unaddressed grounds stand unrebutted, and saying so in a reply is what puts it before the court.
- Obtain a separate order on the objections, so the evidentiary ruling and the judgment stand on their own feet.
What defeats it
- A curative affidavit filed before the hearing, which is usually available if the opponent is paying attention.
- Self-authenticating documents under Rule 902 — certified public records, business records with a 902(10) affidavit.
- Defects of form not objected to in writing before the hearing, which are waived.
Where I have used it
Johnson & Farst v. Carnes · 267th Judicial District Court, DeWitt County. Exhibits struck by separate order, unanswered grounds conceded, affirmative defenses dead for want of proof. Judgment on the whole case, $19,394.12 in fees.
Questions
Are statements in a summary judgment brief evidence in Texas?
No. Argument of counsel is not evidence. Factual assertions must be supported by affidavits, declarations, deposition excerpts, discovery responses or authenticated documents in the summary judgment record.
What happens to summary judgment grounds the response does not address?
They stand unchallenged. A non-movant who fails to respond to a ground cannot later complain of it on any basis other than the legal sufficiency of the movant's own proof, so identifying the unanswered grounds expressly in a reply is worth doing every time.
How are business records authenticated on summary judgment in Texas?
By an affidavit satisfying Tex. R. Evid. 902(10) — a custodian or other qualified witness swearing that the records were made at or near the time by someone with knowledge and kept in the regular course of a regularly conducted business activity.