Introduction

Many Texas lawsuits are won or lost long before a jury ever hears the evidence. One of the most powerful procedural tools available to litigants is the motion for summary judgment. Yet an often-overlooked aspect of summary judgment practice is that not every defect in evidence automatically results in exclusion.

Under Texas law, some evidentiary defects must be specifically objected to in the trial court. If no objection is made, the complaint may be waived forever—even on appeal.

For litigants and attorneys alike, understanding Texas Rule of Civil Procedure 166a(f) can mean the difference between preserving an appellate issue and unintentionally forfeiting it.

The Rule

Texas Rule of Civil Procedure 166a(f) provides:

"Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein."

The rule further provides:

"Defects in the form of affidavits or attachments will not be grounds for reversal unless specifically pointed out by objection by an opposing party with opportunity, but refusal, to amend."

This language creates an important distinction between defects of form and defects of substance.

Why the Distinction Matters

Texas appellate courts have long recognized that certain evidentiary defects are waived unless raised in the trial court.

The rationale is straightforward: if the defect could have been corrected, the opposing party should have an opportunity to fix it before the court rules.

By contrast, some defects are so fundamental that they render the evidence legally incompetent regardless of whether an objection was made.

Understanding which category applies can preserve—or destroy—an appellate argument.

Defects of Form

Generally speaking, defects of form are curable.

Examples often include:

• Lack of a jurat or proper notarization;
• Failure to attach referenced documents;
• Hearsay objections;
• Conclusory statements that could be clarified;
• Authentication defects;
• Technical deficiencies in affidavit wording.

Because these defects are potentially correctable, they ordinarily must be specifically objected to in the trial court.

If the opposing party does not object and obtain a ruling, appellate courts frequently treat the complaint as waived.

Defects of Substance

Substantive defects are different.

Examples may include:

• Testimony from a witness with no personal knowledge;
• Statements that are legally incompetent evidence;
• Affidavits that affirmatively establish the witness lacks competence;
• Evidence that is legally insufficient to prove an essential element.

Substantive defects can often be raised for the first time on appeal because the evidence is fundamentally incapable of supporting summary judgment.

A Common Litigation Trap

Imagine a plaintiff files an affidavit stating:

"I know the defendant committed fraud because everyone in the industry says so."

The statement appears problematic. But what is the actual defect?

If the objection is that the statement contains hearsay, that is typically a defect of form requiring a timely objection.

If no objection is made, the appellate court may consider the complaint waived.

By contrast, if the affidavit affirmatively demonstrates the witness lacks personal knowledge of the alleged fraud, the issue may be substantive and potentially preserved without objection.

The distinction can determine the outcome of an appeal.

Preservation of Error Is Critical

Texas courts repeatedly emphasize that litigants must preserve error.

A party opposing summary judgment should carefully review:

• Affidavits;
• Business records affidavits;
• Expert reports;
• Declarations;
• Documentary exhibits;
• Authentication foundations.

Potential objections should be raised in writing before the hearing, and counsel should obtain a ruling whenever possible.

Merely identifying a problem is often insufficient. Preservation requires proper procedural steps.

Strategic Considerations

For the movant, Rule 166a(f) provides an opportunity to cure technical defects if they are identified early.

For the nonmovant, the rule creates an obligation to review evidence aggressively and make specific objections.

The practical lesson is simple: do not assume an appellate court will rescue an issue that was never presented to the trial court.

Many summary judgment appeals fail not because the underlying argument was weak, but because the complaint was never properly preserved.

Conclusion

Texas Rule of Civil Procedure 166a(f) is one of the most important procedural rules in Texas litigation. While summary judgment practice often focuses on legal arguments and substantive claims, procedural preservation can be equally important.

The distinction between defects of form and defects of substance determines whether an objection must be made, whether a defect can be cured, and whether an appellate court will even consider the complaint.

In Texas litigation, winning often depends not merely on being right, but on preserving the right argument at the right time.

At David C. Barsalou, Attorney at Law, PLLC, we help clients navigate business, family, tax, estate planning, and real estate matters ranging from document drafting to litigation with clarity and confidence. If you’d like guidance on your situation, schedule a consultation today. Call us at (713) 397-4678, email barsalou.law@gmail.com, or reach us through our Contact Page. We’re here to help you take the next step.