Receiving a motion for summary judgment can be intimidating. In many Texas lawsuits, the opposing party attempts to end the case before trial by arguing that no genuine dispute of material fact exists. But what happens if you simply have not had enough time to obtain the evidence necessary to respond?

Texas law recognizes that summary judgment should not become a shortcut to deprive a party of a fair opportunity to develop the facts. Texas Rule of Civil Procedure 166a(g) gives courts the authority to continue a summary judgment hearing when additional discovery is necessary.

Understanding how this rule works can make the difference between losing a lawsuit prematurely and having the opportunity to fully present your case.

What Is Rule 166a(g)?

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

"Should it appear from the affidavits of a party opposing the motion that he cannot for reasons stated present by affidavit facts essential to justify his opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just."

This rule gives trial courts flexibility when a party legitimately needs additional evidence before responding to a motion for summary judgment.

Why Does This Rule Exist?

Summary judgment is designed to eliminate cases where there is no genuine factual dispute—not to reward the party who files the motion first.

Imagine these situations:

• A key witness has not yet been deposed.
• Important business records have been requested but not produced.
• An expert has not completed an inspection.
• The opposing party has delayed discovery.

In each of these circumstances, forcing the responding party to defend a summary judgment motion without access to necessary evidence could produce an unjust result.

Rule 166a(g) helps prevent that outcome.

What Must the Party Show?

Merely saying "I need more discovery" is almost never enough.

Instead, the party should typically submit an affidavit explaining:

• why additional discovery is needed;
• what specific evidence is expected to be obtained;
• how that evidence is material to defeating summary judgment; and
• why the evidence could not reasonably have been obtained earlier.

Courts generally expect concrete facts—not vague assertions that more discovery might uncover something useful.

Factors Courts Often Consider

Although every case is different, Texas courts frequently consider factors such as:

• how long the case has been pending;
• whether an adequate opportunity for discovery has already occurred;
• whether discovery has been diligently pursued;
• whether the requested discovery is likely to produce material evidence; and
• whether the continuance would unfairly prejudice the opposing party.

A party that has ignored discovery deadlines for months will generally have a much harder time obtaining relief than one who has diligently pursued discovery but encountered legitimate obstacles.

The Importance of Diligence

One of the most common reasons Rule 166a(g) requests fail is lack of diligence.

For example, if a party waits until the week before the summary judgment hearing to notice critical depositions that could have been scheduled months earlier, the court may conclude that the lack of evidence resulted from the party's own delay.

On the other hand, when discovery has been actively pursued but remains incomplete because of scheduling conflicts, delayed document production, or other legitimate reasons, a continuance becomes much more reasonable.

Discovery and Summary Judgment Go Hand in Hand

Texas courts have repeatedly recognized that summary judgment should generally occur only after the parties have had an adequate opportunity for discovery.

This principle also appears throughout the Texas Rules of Civil Procedure, which are designed to encourage decisions on the merits rather than technical procedural traps.

That does not mean discovery must be completely finished before summary judgment can occur—but it does mean parties should have a fair chance to obtain evidence essential to their claims or defenses.

Practical Example

Suppose a homeowner sues a contractor for defective construction.

The contractor files a motion for summary judgment arguing there is no evidence of defective workmanship.

However:

• the homeowner has requested construction records;
• expert inspections are scheduled but not yet completed;
• the contractor has not fully responded to discovery.

If the homeowner properly supports a Rule 166a(g) request with an affidavit explaining these circumstances, the court may continue the hearing to allow discovery to be completed before ruling on the motion.

Rule 166a(g) Is Not Automatic

It is important to remember that Rule 166a(g) does notguarantee a continuance.

The rule provides that the court "may"grant appropriate relief, meaning the decision generally rests within the trial court's discretion.

Because of that discretion, careful preparation of the supporting affidavit and a well-developed explanation of why additional discovery is genuinely necessary can significantly improve the likelihood of success.

Final Thoughts

Summary judgment is one of the most powerful procedural tools available in Texas litigation. At the same time, Rule 166a(g) serves as an important safeguard by ensuring that cases are not decided before the parties have had a meaningful opportunity to obtain essential evidence.

Whether you are pursuing a claim or defending against one, understanding when additional discovery may justify delaying a summary judgment hearing can be critical to protecting your rights.

If you are involved in Texas civil litigation and have questions about discovery, summary judgment, or your procedural options, consulting with an experienced Texas litigation attorney early in the process can help ensure important rights are preserved.

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.