A no-evidence motion for summary judgment allows a Texas court to dispose of claims or defenses that lack evidentiary support after an adequate time for discovery. Authorized by Texas Rule of Civil Procedure 166a(i), a no-evidence motion shifts the focus away from the movant’s proof and places the burden squarely on the nonmovant to come forward with evidence raising a genuine issue of material fact.
Because the evidentiary burdens and timing considerations differ sharply from those governing traditional motions for summary judgment, no-evidence motions require careful attention to both substance and deadlines.
What Is a No-Evidence Motion for Summary Judgment?
A no-evidence motion for summary judgment is procedurally analogous to a pretrial directed verdict. Rather than affirmatively proving entitlement to judgment, the movant asserts that there is no evidence of one or more essential elements of a claim or defense on which the opposing party would bear the burden of proof at trial.
The motion does not attach evidence. Instead, it identifies specific elements for which the nonmovant allegedly lacks evidence. If the nonmovant fails to produce evidence raising a genuine issue of material fact on the challenged elements, the court must grant the motion.
When a No-Evidence Motion May Be Filed
Rule 166a(i) permits a no-evidence motion only after an adequate time for discovery. Whether discovery has been adequate depends on the procedural posture of the case, including the length of the discovery period, the nature of the claims, and whether a scheduling order governs discovery deadlines.
When a pretrial scheduling order sets a discovery period, that period is ordinarily considered an adequate time for discovery unless the nonmovant can demonstrate otherwise. As a practical matter, no-evidence motions are most commonly filed after the close of discovery or near dispositive-motion deadlines set by the court.
The Movant’s Burden Under Rule 166a(i)
The movant’s burden in a no-evidence motion is limited but precise. The motion must specifically identify the elements of the claim or defense for which there is allegedly no evidence. Conclusory or global challenges to an opponent’s case are not permitted.
Once the elements are properly identified, the movant has no obligation to submit evidence. The motion succeeds or fails based entirely on whether the nonmovant produces evidence in response.
The Nonmovant’s Response Burden
The nonmovant bears the decisive burden in responding to a no-evidence motion. To defeat the motion, the nonmovant must produce more than a scintilla of evidence raising a genuine issue of material fact on each challenged element.
The response need not marshal all proof or conclusively establish the claim. However, unsupported allegations, pleadings, or speculation are insufficient. The evidence must be admissible summary judgment evidence that would allow reasonable factfinders to reach different conclusions.
Failure to timely respond or to address each challenged element generally requires the court to grant the motion.
Evidence Considered on a No-Evidence Motion
Although the movant submits no evidence, the nonmovant’s response must rely on admissible summary judgment evidence. Courts may consider affidavits, deposition testimony, discovery responses, admissions, stipulations, and authenticated public records that are properly before the court.
As with traditional summary judgment practice, evidence defects matter. Defects in form must be preserved by objection, while substantive defects may render evidence legally insufficient regardless of objection.
Deadlines for No-Evidence Motions for Summary Judgment
No-evidence motions are subject to the same notice and response deadlines set forth in Rule 166a(c), unless modified by court order. Absent leave of court, the motion must be filed and served at least twenty-one days before the hearing, and the nonmovant’s response and opposing evidence must be filed and served no later than seven days before the hearing. In many cases, however, a scheduling order governs when no-evidence motions may be filed or heard. Courts frequently impose dispositive-motion deadlines that control regardless of Rule 166a’s default notice periods. When a scheduling order addresses dispositive motions, it controls.
That said, because no-evidence motions often turn entirely on whether the nonmovant timely produces evidence, the timing of a no-evidence motion for summary judgment requires a different analysis. Rule 166a(i) permits such a motion only after an “adequate time for discovery,” but the rule does not require that discovery be completed. Instead, the inquiry focuses on whether the nonmovant has had a fair opportunity to obtain evidence relevant to the challenged elements.
Rule 166a(i) expressly authorizes a party, without presenting summary judgment evidence, to move for summary judgment on the ground that there is no evidence of one or more essential elements of a claim or defense on which the opposing party would bear the burden of proof at trial, provided that an adequate time for discovery has passed.
The rule’s Notes and Comments, adopted in 1997, provide additional guidance in cases governed by discovery or scheduling orders. When a pretrial order sets a discovery period, that period is ordinarily considered an adequate opportunity for discovery unless the nonmovant demonstrates otherwise. In such cases, a no-evidence motion is generally permitted after the discovery period closes, but not before.
Continuances and Claims of Inadequate Discovery
Rule 166a(f) provides limited relief when a party opposing summary judgment cannot, for stated reasons, present facts essential to justify its opposition. A nonmovant may seek a continuance to obtain discovery or affidavits, but the burden rests on the nonmovant to demonstrate why discovery has been inadequate and how additional discovery would create a fact issue.
Courts are not required to grant continuances simply because discovery is ongoing. The existence of a scheduling order and the opportunities already afforded for discovery are often decisive.
How No-Evidence Motions Differ from Traditional Motions
No-evidence and traditional motions serve distinct functions and impose opposite burdens. In a traditional motion, the movant must conclusively establish entitlement to judgment through evidence. In a no-evidence motion, the movant challenges the absence of evidence and forces the nonmovant to produce proof.
Because of these differences, parties frequently file both types of motions, either separately or in a combined filing. Each motion must independently satisfy the applicable standards and deadlines.
Strategic Use of No-Evidence Motions in Texas Litigation
No-evidence motions are a powerful tool for testing the evidentiary foundation of claims and defenses after discovery. They are particularly effective against claims that rest on speculation, unsupported expert opinions, or elements for which discovery has yielded no competent proof.
From a strategic standpoint, no-evidence motions often crystallize dispositive issues and can resolve cases efficiently when the nonmovant cannot meet its evidentiary burden.