Oljine Noguez and Manuel Zepeda Mendoza (Claimants) were investigated for alleged involvement in an opioid trafficking operation, and after the investigation the State, under Code of Criminal Procedure chapter 59, seized their bank accounts and cash and began four civil-forfeiture actions by filing an "Original Notice of Seizure and Intended Forfeiture" for each asset, alleging the funds were contraband related to the operation.¹ Each notice attached a sworn declaration by the investigating officer, Bryan Bacon, identifying the property, and his sworn affidavit, 44 pages long, summarizing the facts establishing probable cause; the statute requires both before the State may sue.²

Nearly two years after the suits were filed, Claimants moved for no-evidence summary judgment under Rule 166a(i).¹ The State filed a four-page response attaching no exhibits; it argued the motion was defective and, assuming the challenged element was that the funds were used in or gained from a felony, summarized parts of Officer Bacon's affidavit, beginning "In Officer Bacon's forty-four page affidavit".² Claimants replied that the affidavit was not attached and the references were conclusory; the trial court granted the motion by submission, then denied the State leave to file a further response attaching the affidavit, saying it could not consider the affidavit because the rules required the nonmovant to attach its evidence to the response.³ The Seventh Court of Appeals affirmed, holding that the State failed to "produce" evidence by not attaching the affidavit and, alternatively, that it did not point to the specific parts of the affidavit it relied on.⁴ The Court granted review, heard argument on February 18, 2025, and decided the case on May 16, 2025.⁵

Petition for review from the Seventh Court of Appeals in a civil-forfeiture appeal from a no-evidence summary judgment; argued February 18, 2025, and decided May 16, 2025.⁶

The State's petition presents six issues, the first four addressed in argument: whether a nonmovant must attach previously filed evidence to its response to a no-evidence motion; whether its response, which referred to a 44-page affidavit and summarized it, was adequate in a record that is not voluminous; whether the affidavit is a scintilla of evidence of a substantial connection between the property and criminal activity; and whether the court of appeals erred in determining when the trial court rendered judgment; the last two ask whether Claimants' motion was too conclusory or failed to challenge every ground for forfeiture.¹ The Court resolved whether the motion was sufficient, whether attachment is required, whether the response sufficiently pointed out the evidence, and whether the affidavit is incompetent because it was attached to a pleading.²

A trial court's decision to consider or exclude summary-judgment evidence is reviewed for abuse of discretion, but a clear failure to analyze or apply the law correctly is an abuse of discretion.¹

Whether the nonmovant must attach previously filed evidence to its response.

Petitioner (State): There is no textual or logical basis for treating evidence on file differently in a no-evidence context, because evidence on file has already been produced to the court, and the Court should clarify that it need not be reattached and refiled to be considered.¹ The State also argued that Claimants' motion was too conclusory, and that its own response adequately directed the court to the 44-page affidavit in a record that was not voluminous.²

Respondents (Claimants): The State did not attach any evidence and did not direct the trial court to any specific page or passage of the 44-page affidavit, relying only on general references, which is insufficient; they say the court of appeals did not create a mandatory attachment rule, and note the long-standing rule that summary-judgment evidence must be attached to the motion or the response.³ They also argue that the State filed its motion for leave only after the trial court had ruled, and that the affidavit, attached to the State's own pleading, is not competent evidence.⁴

The State argued that the court of appeals "judicially creates a mandatory method and location" for producing evidence in response to a no-evidence motion, contrary to Rule 166a's text and comment and to the Court's decisions, and that summary-judgment motions are common in civil proceedings.¹ In its reply it argued that the response itself shows the need for clarification, because Claimants assert both that evidence must be attached and that a nonmovant need not duplicate evidence in the court's file.²

• Pointing to the evidence. Asked about any specificity requirement, the State's counsel said parties must help trial courts, which lack law clerks, instead of just pointing to a fifty-page affidavit. (Oral Argument, 0:03:29; 0:05:02)
• Re-attaching. Asked whether a response must re-attach evidence from the traditional motion, the claimants' counsel said best practice is yes and his firm would, though cases say otherwise. (Oral Argument, 0:36:07)
• Not required. Asked why the State attached evidence in 17 earlier cases if the law did not require it, the claimants' counsel said it may be good practice, not a requirement. (Oral Argument, 0:25:13)
• Committee comment. Asked about the weight of the rule's notes and comments, the State's counsel said this comment is unique, since the Court expressly says it is to be used. (Oral Argument, 0:11:12)
• Thousand-page affidavit. On rebuttal, the State's counsel said a trial court with a crowded docket need not search a thousand-page affidavit if the response does not point to the pages. (Oral Argument, 0:42:19)

None. The docket shows no amicus filings.

Holding

Rule 166a(i) requires a nonmovant to "produce" evidence, not "attach" it, so when a timely response to a no-evidence motion does not attach evidence but directs the trial court and the parties to previously filed evidence on which the nonmovant relies, the trial court abuses its discretion by refusing to consider it; the State's response sufficiently pointed out the affidavit, which is not incompetent merely because it was first attached to the State's pleading.¹

Reasoning

Sufficiency of the motion. A no-evidence motion must specifically state the elements as to which there is no evidence, and strictly enforced, a movant may not merely list elements and assert there is no evidence of "one or more" of them, but Claimants' motion described the challenged elements, that the property was used as alleged in paragraph VIII of the State's notice and is contraband, so it gave adequate notice.²

Attachment. The rule uses the word "produce," and its comment says the nonmovant "need only point out" evidence; to point out is to call others' attention to it, so a response that discusses and calls the court's attention to evidence already in the record "points out" and thus "produces" that evidence.³ The Court encouraged attaching all relied-upon evidence but held that the act of attachment "does not magically convert 'evidence' into 'summary judgment evidence,'" and its holding is consistent with Binur and Lance.⁴ It noted that the court of appeals' opinion appears to be an outlier among the courts of appeals and that the MSW Corpus Christi Landfill statement requiring attachment was dicta.⁵

Sufficiency of the response. A nonmovant must still expressly point out fact issues and cannot rely on a general reference to a voluminous record, but evidence in the record that is "expressly referenced and specified" in the response may be considered.⁶ The State referenced a specific affidavit, told the court where to find it, and summarized the portions on which it relied, and the affidavit was one of the only pieces of evidence in the record, so the response was sufficient, though it could have given page numbers.⁷

Pleading attachment. A party may not rely on its own pleadings as summary-judgment evidence, but the Court has never held that evidence is incompetent merely because it was first filed as an attachment to a pleading.⁸

Disposition

The Court reversed the court of appeals' judgment, vacated the trial court's order granting Claimants' motion, and remanded to the trial court to reconsider the motion in light of the opinion, expressing no opinion on Claimants' objections to the substance of the affidavit or its effect on the merits.⁹

Vote Breakdown

Majority Opinion by Justice Lehrmann

Joined by Blacklock, C.J., and Bland, Boyd, Busby, Devine, Huddle, Sullivan, and Young, JJ.