Court considers whether no-evidence response may rely on evidence already on file without reattaching it

The Supreme Court considered procedural briefing in the asset-forfeiture-style matter docketed as the State of Texas v. various amounts (No. 240258), focusing on whether a party opposing a no-evidence motion for summary judgment must attach the evidence it intends to rely on or may simply point the trial court to supporting documents already on file.

State petitioner counsel (Ms. Baumgartner) argued that Rule 166a(i) requires the non-movant to "produce evidence" but that producing evidence may mean bringing existing on-file evidence to the courts attention rather than reattaching it. She cited the interpretive comment accompanying the rule and Lance-era precedent to support the view that documents already in the trial-court record need not be refiled with a response.

Respondent counsel (Mr. Isern) disputed that reading and said the trial court did not abuse its discretion in excluding an affidavit that the state had not attached to its response. He argued that the no-evidence procedure shifts the burden to the respondent and that courts of appeals have uniformly required enough specificity or placement of evidence so trial courts can readily locate it.

The justices questioned how granular a reference must be when a respondent points to voluminous material already on file and discussed practical problems for busy trial courts that lack briefing staff. Petitioners argued that a flexible standard"some guidance" about where the evidence appearsis workable; respondents argued that a respondent who relies on large on-file exhibits should provide precise page or paragraph citations or attach the material.

The court took the argument and submitted the issue for decision; no ruling was announced from the bench.