day hearing in Texas

2018Harrell v. State, 725 S.W.2d 208, 209 (Tex. Crim.

2016Harrell v. State, 725 S.W.2d 208, 209-10 (Tex.Crim.App.1986).

2024Thus, hearing on a motion for summary judgment may be set as early as the 21st day after the motion is served, or the 24th day if the motion is served by mail. 876 S.W.2d 314, 316 (Tex. 1994). 1 The date of submission has the same meaning as the day of hearing under Texas Rule of Civil Procedure 166a(c).

2016R. 166a(c) (“Except on leave of court, the adverse party, not later than seven days prior to the day of hearing may file and serve opposing affidavits or other written response.”); Lewis v. Blake, 876 S.W.2d 314, 315 (Tex. 1994) (per curiam) (summary-judgment response is timely if mailed by seventh day prior to hearing). 7 The summary-judgment hearing went forward as scheduled, and there were no further filings in advance of the court’s ruling, nor was a reporter’s record of the proceedings made.

2025Compare Carpenter v. Cimarron Hydrocarbons Corp., 98 S.W.3d 682, 685, 688 (Tex. 2002) (op. on reh’g) (explaining that the trial court did not abuse its discretion by denying leave to file a late summary-judgment response when the respondent’s motion for leave was not “accompanied by any supporting affidavits or other evidence” and the motion to submit the late response was not filed until the day of the hearing), with Verhalen v. Akhtar, 699 S.W.3d 303 , 304, 306 (Tex. 2024) (distinguishing Carpenter and concluding trial court abused its discretion by denying leave to file a summary-judgment r

2024Id. at 685 .

2024See Martin v. Martin, Martin & Richards, Inc., 989 S.W.2d 357, 359 (Tex. 1998) (per curiam). 5 In this case, the Association set the submission date for January 6, 2023, which was the 21st day after the Hesses received electronic service by email and actual notice of the Association’s motion.

2015P. 166a(c) (except on leave of court, the party opposing a motion for summary judgment may "file and serve opposing affidavits or other written response” not later than seven days before a hearing date); see also Rone v. Goodwin, 171 S.W.3d 579, 583 (Tex.App.— Tyler 2005, no pet.) (the date of submission has the same meaning as the day of hearing under Rule 166a) (citing Martin v. Martin, Martin & Richards, Inc., 989 S.W.2d 357, 359 (Tex. 1998)).

2019See id.; Shelton v. Sargent, 144 S.W.3d 113, 119 (Tex. App.—Fort Worth 2004, pet. denied) (citations omitted).

2018Herrington v. Cote, No. 01-04-00212-CV, 2007 WL 926622 , at *2 (Tex. App.—Houston [1st Dist.] Mar. 29, 2007, no pet.) (mem. op.); Cmty. Initiatives, Inc. v. Chase Bank of Tex., 153 S.W.3d 270, 280 (Tex. App.—El Paso 2004, no pet.); Shelton v. Sargent, 144 S.W.3d 113, 119 (Tex. App.—Fort Worth 2004, pet. denied). –5– discretion to the trial court to consider documents filed outside of the local rule’s stated deadlines.

2026See In re Amaro, No. 13–17–00185–CV, 2017 WL 2979903 , at *5 (Tex. App.—Corpus Christi July 11, 2017, orig. proceeding) (mem. op.) (noting “ ‘movant has the burden to set a hearing on [a] motion or make a direct request to a trial judge for a hearing’ ”) (quoting Enriquez v. Livingston, 400 S.W.3d 610, 619-20 (Tex. App.—Austin 2013, pet. denied)); see also Doss v. Robinson, No. 04–16–00560–CV, 2017 WL 2124488 , at *3 (Tex. App.—San Antonio May 17, 2017, no pet.) (mem. op.) (noting the burden is on the party to set a motion for a hearing).

2020See In re Amaro, No. 13–17–00185–CV, 2017 WL 2979903 , at *5 (Tex. App.—Corpus Christi July 11, 2017, orig. proceeding) (mem. op.) (noting “‘movant has the burden to set a hearing on [a] motion or make a direct request to a trial judge for a hearing’”) (quoting Enriquez v. Livingston, 400 S.W.3d 610, 619-20 (Tex. App.— Austin 2013, pet. denied)); see also Doss v. Robinson, No. 04–16–00560–CV, 2017 WL 2124488 , at *3 (Tex. App.—San Antonio May 17, 2017, no pet.) (mem. op.) (noting the burden is on the party to set a motion for a hearing).

2022See Bradford Partners II, L.P. v. Fahning, 231 S.W.3d 513 , 521–22 (Tex. App.—Dallas 2007, no pet.) (“[A] movant’s objections to the competency of a non- movant’s evidence that are filed the day of the hearing are not untimely and may be considered and ruled upon by the trial court.”).

2012See Reynolds v. Murphy, 188 S.W.3d 252, 259 (Tex. App.—Fort Worth 2006, pet. denied) (holding that movant’s objections to competency of a nonmovant’s evidence that were filed the day of the summary judgment hearing were not untimely and could be considered and ruled upon by the trial court), cert. denied, 549 U.S. 1281 (2007); Shelton, 144 S.W.3d at 118–19 (holding that trial court was within its discretion to consider appellees’ objections to summary judgment evidence even though objections were filed two days before summary judgment hearing); see also 3 Bradford Partners II, L.P. v. Fahning,

2015P. 166a(c) (except on leave of court, the party opposing a motion for summary judgment may "file and serve opposing affidavits or other written response” not later than seven days before a hearing date); see also Rone v. Goodwin, 171 S.W.3d 579, 583 (Tex.App.— Tyler 2005, no pet.) (the date of submission has the same meaning as the day of hearing under Rule 166a) (citing Martin v. Martin, Martin & Richards, Inc., 989 S.W.2d 357, 359 (Tex. 1998)).

2015See id.; Rorie v. Goodwin, 171 S.W.3d 579, 583 (Tex. App.—Tyler 2005, no pet.) (“The date of submission has the same meaning as the day of hearing under Texas Rule of Civil Procedure 166a(c).”).

2012See Nabors Loffland Drilling Co. v. Martinez, 894 S.W.2d 70, 73 (Tex.App.-San Antonio 1995, writ denied) (holding that plaintiffs were within their rights to amend petition prior to venue hearing); Watson v. City of Odessa, 893 S.W.2d 197, 200 (Tex.App.-El Paso 1995, writ denied) (holding that amended petition filed seven days before venue hearing was timely and trial court was “bound” to consider it); In re Fluor Enters., Inc., No. 13-11-00260-CV, 2011 WL 2463004 , at *4 (Tex.App.-Corpus Christi Jun. 13, 2011, orig. proceeding) (memo, op.) (holding that amended petitions filed on the day of h

2011See Watson , 893 S.W.2d at 199–200.

2025Code § 16.051 (four- year residual statute of limitations); Stine v. Stewart, 80 S.W.3d 586, 592 (Tex. 2002) (“A party asserting a breach of contract claim must sue no later than four years after the day the claim accrues.”).

2013“A party asserting a breach of contract claim must sue no later than four years after the day the claim accrues.” Id.

2016Harrell, 725 S.W.2d at 209–10; Rhyne, 387 S.W.3d at 902 .

2015To introduce Intoxilyzer results into evidence, “the State must establish: (1) that the machine functioned properly on the day of the test as evidenced by a reference sample having been run through it; (2) the existence of periodic supervision over the machine and operation by one who understands the scientific theory behind it; and (3) proof of the results of the test by a witness or witnesses qualified to translate and interpret such results.” Rhyne v. State, 387 S.W.3d 896, 902 (Tex.App.--Fort Worth 2012, no pet.).

2004See Alaniz, 105 S.W.3d at 339 ; Callaghan Ranch, Ltd. v. Killam, 53 S.W.3d 1, 4 (Tex.App.San Antonio 2000, pet. denied); Wright v. Lewis, 777 S.W.2d 520, 522 (Tex.App.-Corpus Christi 1989, writ denied).

2004See Alaniz , 105 S.W.3d at 339 ; Callaghan Ranch, Ltd. v. Killam , 53 S.W.3d 1, 4 (Tex. App.--San Antonio 2000, pet. denied); Wright v. Lewis , 777 S.W.2d 520, 522 (Tex. App.--Corpus Christi 1989, writ denied).

2023Given Mejia’s failure to obtain the trial court’s permission to file a late response and the fact the record does not show the trial court considered his late-filed response in ruling on Mobiloil’s motion, we presume the trial court didn’t consider the evidence Mejia attached to his response when it granted Mobiloil’s hybrid motion and denied Mejia relief on his affirmative defenses and counterclaims. 18 And since the trial court did not have to consider the evidence Mejia attached to his late-filed response, the trial court did not 17Id.166a(c) (“Except on leave of court, the adverse party, n

1991Pinckley v. Gallegos, 740 S.W.2d 529, 532 (Tex.App.— San Antonio 1987, writ denied) (no abuse of discretion in refusing to accept late-filed affidavits); see also INA v. Bryant, 686 S.W.2d 614, 615 (Tex.1985) (it is presumed that the court did not consider a late summary judgment response where no record appears indicating leave to file).

2018Villegas v. Carter, 711 S.W.2d 624, 626 (Tex. 1986).

2014While the right to counsel should not be lightly denied in civil cases, see Villegas, 711 S.W.2d at 626 , the fact that Thurman had several months to secure new counsel and that she did not request a continuance until the day of the hearing gave the trial court a reasonable basis to deny further delay for the appearance of new counsel.

2014Rule 166a(c) of the Texas Rules of Civil Procedure provides: “Except on leave of court, the adverse party, not later than seven days prior to the day of hearing may file and serve opposing affidavits or other written response.” 2 Summary judgment evidence may be filed late “only with leave of court.” Benchmark Bank v. Crowder, 919 S.W.2d 657, 663 (Tex. 1996).

2007When the record lacks any indication of how a court ruled on a motion seeking leave of court for a late filing, "we must presume the court did not consider it and we must do likewise." Neimes v. Kien Chung Ta , 985 S.W.2d 132, 138 (Tex. App.-San Antonio 1998, pet. dism'd) (citing Benchmark Bank v. Crowder , 919 S.W.2d 657, 663 (Tex. 1996); Goswami v. Metro.

2012See Reynolds v. Murphy, 188 S.W.3d 252, 259 (Tex. App.—Fort Worth 2006, pet. denied) (holding that movant’s objections to competency of a nonmovant’s evidence that were filed the day of the summary judgment hearing were not untimely and could be considered and ruled upon by the trial court), cert. denied, 549 U.S. 1281 (2007); Shelton, 144 S.W.3d at 118–19 (holding that trial court was within its discretion to consider appellees’ objections to summary judgment evidence even though objections were filed two days before summary judgment hearing); see also 3 Bradford Partners II, L.P. v. Fahning,

2012See Reynolds v. Murphy , 188 S.W.3d 252, 259 (Tex. App.—Fort Worth 2006, pet. denied) (holding that movant’s objections to competency of a nonmovant’s evidence that were filed the day of the summary judgment hearing were not untimely and could be considered and ruled upon by the trial court), cert. denied , 549 U.S. 1281 (2007); Shelton , 144 S.W.3d at 118–19 (holding that trial court was within its discretion to consider appellees’ objections to summary judgment evidence even though objections were filed two days before summary judgment hearing); see also Bradford Partners II, L.P. v. Fahning

2012See id ., at 209–10; Kercho v. State , 948 S.W.2d 34, 37 (Tex. App.––Houston [14th Dist.] 1997, pet. ref’d).

2012See id., at 209-10 ; Kercho v. State, 948 S.W.2d 34, 37 (Tex.App.-Houston [14th Dist.] 1997, pet. ref’d).

2012See Reynolds v. Murphy, 188 S.W.3d 252, 259 (Tex. App.—Fort Worth 2006, pet. denied) (holding that movant’s objections to competency of a nonmovant’s evidence that were filed the day of the summary judgment hearing were not untimely and could be considered and ruled upon by the trial court), cert. denied, 549 U.S. 1281 (2007); Shelton, 144 S.W.3d at 118–19 (holding that trial court was within its discretion to consider appellees’ objections to summary judgment evidence even though objections were filed two days before summary judgment hearing); see also 3 Bradford Partners II, L.P. v. Fahning,

2012See Reynolds v. Murphy , 188 S.W.3d 252, 259 (Tex. App.—Fort Worth 2006, pet. denied) (holding that movant’s objections to competency of a nonmovant’s evidence that were filed the day of the summary judgment hearing were not untimely and could be considered and ruled upon by the trial court), cert. denied , 549 U.S. 1281 (2007); Shelton , 144 S.W.3d at 118–19 (holding that trial court was within its discretion to consider appellees’ objections to summary judgment evidence even though objections were filed two days before summary judgment hearing); see also Bradford Partners II, L.P. v. Fahning

2024Sosa, 909 S.W.2d at 895 .

2009See Sosa v. Central Power & Light, 909 S.W.2d 893, 895 (Tex.1995).

1995In May v. State, 784 S.W.2d at 498 , the court held: If the State seeks to introduce intoxilyzer test results into evidence it must establish: (1) that the machine functioned properly on the day of the test as evidenced by the running of a reference sample through the machine; (2) the existence of periodic supervision over the machine and operation by one who understands the scientific theory of the machine; and (3) proof of the results of the test by a witness or witnesses qualified to translate and interpret such results so as to eliminate hearsay.

1995As support for this three-part test the court relied on Harrell v. State, 725 S.W.2d 208, 209-10 (Tex.Cr.App.1986), and May v. State, 784 S.W.2d 494, 498 (Tex. App.—Dallas 1990, pet. ref'd).

1979Axeell v. Phillips, 473 S.W.2d 554 (Tex.Civ.App. — Houston [1st Dist.] 1971, writ ref’d n. r. e.); Taylor v. Fred Clark Felt Co., 567 S.W.2d 863 (Tex.Civ.App. — Houston [14th Dist.] 1978, writ ref’d n. r. e).

1977Lindley v. Smith, 524 S.W.2d 520, 523 (Tex.Civ.App.—Corpus Christi 1975, no writ); Axcell v. Phillips, 473 S.W.2d 554, 560 (Tex.Civ.App.—Houston [1st Dist.] 1971, writ ref’d n. r. e.).

1977See City National Bank in Wichita Falls v. Bradshaw, 433 S.W.2d 955 (Tex.Civ.App.—Fort Worth 1968, no writ) and authorities cited therein.

1975The trial courts have considerable discretion to receive affidavits on the date of the hearing. 4 McDonald, Texas Civil Practice § 17.26.7 (1971); Brown v. Aetna Casualty and Surety Company, 366 S.W.2d 673 (Tex.Civ.App.—Dallas 1963, writ ref’d n. r. e.); Axcell v. Phillips, 473 S.W.2d 554 (Tex.Civ.App.—Houston [1st Dist.] 1971, writ ref’d n. r. e.); City National Bank in Wichita Falls v. Bradshaw, 433 S.W.2d 955 (Tex.Civ.App.—Fort Worth 1968, no writ).

2015Oregon v. Kennedy, 456 U.S. at 673 , 102 S.Ct. at 2088 ; Ex parte Masonheimer, 220 S.W.3d at 506 .

2015Oregon v. Kennedy, 456 U.S. at 673 , 102 S.Ct. at 2088 ; Ex parte Masonheimer, 220 S.W.3d 494, 506 (Tex.Crim.App. 2007).