“Producing” Evidence Under Rule 166a(i): Nonmovants May Rely on Previously Filed Evidence in No‑Evidence Summary Judgment Practice

Introduction

In The State of Texas v. $3,774.28, $10,176.01, $33,349.86, and $9,619.00 in U.S. Currency, No. 24‑0258 (Tex. May 16, 2025), the Supreme Court of Texas resolved an important procedural question about the mechanics of no‑evidence summary judgment under Texas Rule of Civil Procedure 166a(i):

Must a nonmovant “attach” its summary-judgment evidence to its response, or is it enough to direct the court to evidence already on file?

The Court held that Rule 166a(i) does not require attachment of previously filed evidence. A nonmovant satisfies the rule’s command to “produce summary judgment evidence” by expressly pointing out evidence already in the court’s record and explaining how it raises a fact issue on the challenged elements.

This decision clarifies:

What it means to “produce” evidence under Rule 166a(i),
What level of specificity is required in a no‑evidence motion and in the nonmovant’s response, and
Whether evidence attached to pleadings can qualify as competent summary judgment evidence.

Although the case arises out of civil‑forfeiture proceedings tied to an opioid‑trafficking investigation, the Court’s reasoning has broad application to all civil cases in which Rule 166a(i) no‑evidence summary judgment is used.

Summary of the Opinion

The State of Texas seized multiple bank accounts and cash under Chapter 59 of the Code of Criminal Procedure, alleging that the funds were “contraband” linked to an opioid trafficking operation. As required by statute, the State’s Original Notice of Seizure and Intended Forfeiture in each case had attached:

a sworn declaration identifying the seized property, and
a 44‑page sworn affidavit from the investigating officer, Bryan Bacon, setting out probable‑cause facts.

Almost two years later, the claimants (Noguez and Mendoza) filed a no‑evidence motion for summary judgment under Rule 166a(i). The State responded but did not attach evidence. Instead, it:

Argued the no‑evidence motion was procedurally defective, and
Substantively relied on Officer Bacon’s affidavit, expressly identifying it as a “forty‑four page affidavit” attached to the original notices and summarizing key portions.

The trial court nevertheless granted the no‑evidence motion. At a later hearing, the court acknowledged the affidavit was “strong” but stated it could not consider it because, in its view, Rule 166a(i) required the nonmovant to attach its evidence to its initial response. The court refused leave for the State to file a supplemental response with the affidavit attached and signed an amended order granting summary judgment to the claimants.

The Amarillo Court of Appeals affirmed, holding:

The claimants’ no‑evidence motion sufficiently specified the challenged elements of the State’s forfeiture claim.
The State failed to “produce” evidence because the nonmovant must do more than “passively refer” to items on file—it must attach the evidence to its response.
Even if attachment were not required, the State failed to direct the trial court to specific portions of the lengthy affidavit that raised a fact issue.

The Supreme Court of Texas:

Affirmed the court of appeals’ holding that the claimants’ no‑evidence motion met Rule 166a(i)’s specificity requirement;
Reversed the holdings that:
- Rule 166a(i) requires a nonmovant to attach previously filed evidence to its response, and
- The State’s response inadequately pointed out the evidence on which it relied;
Held that the trial court abused its discretion by refusing to consider Officer Bacon’s affidavit; and
Remanded the case to the trial court to reconsider the no‑evidence motion in light of the affidavit, without expressing any view on the substantive sufficiency or admissibility of that affidavit.

Analysis

I. Factual and Procedural Background

A. The Underlying Forfeiture Actions

The State investigated Oljine Noguez and Manuel Zepeda Mendoza for an alleged opioid‑trafficking operation. Following the investigation, the State seized four sets of funds—three bank accounts and cash—and initiated civil‑forfeiture proceedings under Chapter 59 of the Texas Code of Criminal Procedure.

Each forfeiture action began with an Original Notice of Seizure and Intended Forfeiture, as required by Articles 59.02–59.04. The notices alleged that the funds were “contraband” under Article 59.01(2), meaning they were:

Used in or intended to be used in the commission of a felony under Chapter 481 of the Health and Safety Code (the Controlled Substances Act), and/or
Proceeds of felonious money‑laundering activity under Chapter 34 of the Penal Code.

Each notice was statutorily required to attach—and did attach—two key documents:

A sworn declaration by Officer Bacon identifying the seized property (Article 59.023(a)), and
His sworn affidavit setting out facts to establish probable cause (Articles 59.03(c) and 59.04(b)).

These affidavits were therefore part of the court’s file long before any summary judgment motions were filed.

B. The No‑Evidence Motion and the State’s Response

Nearly two years into the litigation, the claimants filed a no‑evidence motion for summary judgment under Rule 166a(i). The motion asserted, in various formulations, that:

The State had failed to provide evidence of “one or more,” “any,” or “each” of the elements of a civil‑forfeiture claim, and
There was no evidence that the seized property was contraband under the Code of Criminal Procedure.

Critically, in the final paragraph of the motion’s argument section, the claimants specified two elements as to which they said there was no evidence:

That the property was used in a manner described in Paragraph VIII of the State’s notices of seizure (i.e., used or intended to be used in the commission of a felony under Health & Safety Code Chapter 481); and
That the property was “contraband” as defined in Article 59.01 of the Code of Criminal Procedure.

The State responded with a four‑page brief (without attachments), arguing:

The no‑evidence motion was procedurally defective because it allegedly failed to identify the challenged elements with sufficient specificity; but
Assuming the claimants were challenging evidence that the funds were used in or derived from felonies, the State had evidence in Officer Bacon’s affidavit.

The State’s response:

Identified “the affidavit of Bryan Bacon” as being contained in the “original notice of seizure,”
Described it as a “forty‑four page affidavit,” and
Summarized specific categories of evidence in the affidavit, including:
- Police reports documenting “multiple medication bottles” in the claimants’ home,
- Undercover sales of controlled substances,
- Packages containing opioids destined for the claimants’ home,
- Evidence of claimants accepting those packages,
- An interview with Noguez about her control over the bank accounts, and
- The claimants’ guilty pleas to related trafficking offenses.

C. The Trial Court’s Ruling

The trial court considered the no‑evidence motion by submission and granted summary judgment for the claimants. A signed order followed.

The State then sought leave to file a response to the claimants’ reply and attached the Bacon affidavit to that later response. At the hearing on the motion for leave, the trial court stated on the record that the affidavit was “strong,” but asserted it could not consider it because it believed the rules required the nonmovant to attach all evidence to the original response.

The court denied leave and finalized an amended summary judgment order granting the no‑evidence motion. The order was expressly revised to remove any suggestion that the trial court considered “affidavits on file.”

D. The Court of Appeals’ Decision

The Amarillo Court of Appeals (State v. $3,774.28, 692 S.W.3d 759 (Tex. App.—Amarillo 2024)) affirmed. It held:

The claimants’ motion satisfied Rule 166a(i) because it identified the absence of evidence that:
- The property was used in the manner described in Paragraph VIII of the notices (i.e., used in or intended to be used in certain felonies), and
- The property met the statutory definition of “contraband.”
The State failed to “produce” evidence because a nonmovant “must do more than passively refer to other items ‘on file’” and must instead attach the supporting evidence to its response.
Even if attachment were not mandatory, the State’s response did not direct the court to specific portions of the 44‑page affidavit and so did not raise a fact issue.

The Supreme Court granted review to resolve multiple issues concerning Rule 166a(i)’s operation.

II. Precedents and Authorities Cited

The Court situated its analysis within a well‑developed body of Texas summary judgment jurisprudence. Key precedents include:

1. General Summary Judgment Framework

G & H Towing Co. v. Magee, 347 S.W.3d 293 (Tex. 2011).
Reaffirms that summary judgment is designed to terminate cases when no genuine fact issue exists and only legal questions remain.
Sartor v. Arkansas Natural Gas Corp., 321 U.S. 620 (1944).
A U.S. Supreme Court case emphasizing that summary judgment is appropriate when “it is quite clear what the truth is,” cited to frame summary judgment’s function.

2. No‑Evidence Summary Judgment and Burden Shifting

Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572 (Tex. 2006).
Describes a no‑evidence motion for summary judgment as “essentially a motion for a pretrial directed verdict.” Filing a proper no‑evidence motion shifts the burden to the nonmovant to present evidence raising a fact issue on the challenged elements.
JLB Builders, L.L.C. v. Hernandez, 622 S.W.3d 860 (Tex. 2021).
Confirms that once a no‑evidence motion properly challenges specific elements, the nonmovant must present evidence raising a genuine issue of material fact as to each contested element.
Town of Shady Shores v. Swanson, 590 S.W.3d 544 (Tex. 2019).
Clarifies that a nonmovant need not “marshal its proof” in response to a no‑evidence motion but must present “more than a scintilla” of evidence on each challenged element.

3. Standard of Review and “Abuse of Discretion” in Applying Procedural Rules

Lujan v. Navistar, Inc., 555 S.W.3d 79 (Tex. 2018).
Confirms that a trial court’s decision to consider or exclude summary judgment evidence is reviewed for abuse of discretion.
Walker v. Packer, 827 S.W.2d 833 (Tex. 1992).
Establishes that a trial court has no “discretion” to misinterpret the law; a clear failure to correctly analyze or apply the law constitutes an abuse of discretion.

4. Specificity Requirement for No‑Evidence Motions

Community Health Systems Professional Services Corp. v. Hansen, 525 S.W.3d 671 (Tex. 2017).
Requires “strict enforcement” of Rule 166a(i)’s command that a no‑evidence motion “specifically state the element or elements” as to which there is no evidence. General statements that a plaintiff has no evidence of “one or more” or “any” elements are insufficient if not tied to specific elements.
Timpte Industries, Inc. v. Gish, 286 S.W.3d 306 (Tex. 2009).
Explains that the specificity requirement exists to provide adequate notice to the nonmovant and to define the issues for summary judgment purposes.

5. Attachment vs. Incorporation of Evidence; “Pointing Out” Evidence

Binur v. Jacobo, 135 S.W.3d 646 (Tex. 2004).
Holds that Rule 166a does not forbid a party from combining a traditional and a no‑evidence motion in a single filing. Importantly, it recognizes that:
- Evidence attached to a purely no‑evidence motion is not considered unless it creates a fact question, and
- The mere presence of attached evidence does not transform a no‑evidence motion into a traditional one.
The current opinion uses Binur to reinforce that attached evidence can be considered where it raises a fact issue, undermining any supposed requirement that the nonmovant must reattach the same evidence.
Lance v. Robinson, 543 S.W.3d 723 (Tex. 2018).
In a traditional summary judgment context, holds that a movant’s failure to attach previously filed evidence does not prevent the court from considering that evidence if it is “expressly referenced and specified” in the motion. The current case extends that logic to Rule 166a(i) responses.
McConnell v. Southside Independent School District, 858 S.W.2d 337 (Tex. 1993).
Holds that summary judgment issues must be “expressly presented” in the motion; they are not raised by “mere reference” to attached evidence. The Court borrows this concept for no‑evidence responses: a nonmovant must do more than simply mention that evidence exists somewhere.
Rogers v. Ricane Enterprises, Inc., 772 S.W.2d 76 (Tex. 1989).
Rejects general references to a voluminous record that do not direct the trial court to specific evidence. The present decision adopts that caution but finds that the State did more than a vague, general reference.

6. Evidence in the Record; Combined Motions; Failure to Respond

Town of Dish v. Atmos Energy Corp., 519 S.W.3d 605 (Tex. 2017).
In a case involving a combined traditional and no‑evidence motion, holds that a proper no‑evidence motion must be granted if the nonmovant does not respond to the no‑evidence portion, even if it responds to the traditional portion.
Landers v. State Farm Lloyds, 257 S.W.3d 740 (Tex. App.—Houston [1st Dist.] 2008, no pet.).
Explains that a nonmovant who wishes to assert that record evidence creates a fact issue must timely file a response; courts are not required to scour the file unaided.

7. Non‑Evidence Status of Pleadings; Status of Attachments

Regency Field Services, LLC v. Swift Energy Operating, LLC, 622 S.W.3d 807 (Tex. 2021).
Reiterates that pleadings are not competent summary-judgment evidence for either movant or nonmovant. The present opinion clarifies that this principle does not strip evidentiary force from documents (e.g., affidavits) that happen to be attached to pleadings.

8. Textual Interpretation and Policy Against Technical Traps

Zorilla v. Aypco Construction II, LLC, 469 S.W.3d 143 (Tex. 2015).
Confirms that the Court interprets procedural rules according to their plain meaning, just like statutes.
Mitschke v. Borromeo, 645 S.W.3d 251 (Tex. 2022).
Emphasizes that Texas law “greatly favors resolving litigation on the merits rather than on procedural technicalities.”
Dudley Construction, Ltd. v. Act Pipe & Supply, Inc., 545 S.W.3d 532 (Tex. 2018).
Rejects “form‑over‑substance requirements that favor procedural machinations over reaching the merits.” This policy theme is central to the Court’s rejection of a rigid attachment requirement.

9. Courts of Appeals Authority on Evidence Already on File

Steinkamp v. Caremark, 3 S.W.3d 191 (Tex. App.—El Paso 1999, pet. denied).
Holds that a party properly places evidence before the trial court by (1) requesting judicial notice of evidence already in the record or (2) incorporating that evidence in its motion; “magic language” is unnecessary so long as the court is made aware of the specific evidence.
Saenz v. Southern Union Gas Co., 999 S.W.2d 490 (Tex. App.—El Paso 1999, pet. denied).
Explains that although parties need not “needlessly duplicate” evidence already on file, they must ensure the evidence is properly before the court for the summary judgment ruling.
Dyer v. Accredited Home Lenders, Inc., No. 02‑11‑00046‑CV, 2012 WL 335858 (Tex. App.—Fort Worth Feb. 2, 2012, pet. denied).
Cited (and, the Supreme Court says, misread) by the Amarillo court. In fact, Dyer stands for the proposition that, without any response, a nonmovant cannot rely on evidence attached only to the movant’s motion. It does not impose an attachment requirement where the nonmovant has filed a response.
Huntress v. Hickory Trail Hospital, L.P., No. 05‑19‑00892‑CV, 2020 WL 2781795 (Tex. App.—Dallas May 29, 2020, pet. denied); Ramirez v. Colonial Freight Warehouse Co., 434 S.W.3d 244 (Tex. App.—Houston [1st Dist.] 2014, pet. denied); Cerda v. Crossroads Mall Partners, Ltd., No. 04‑24‑00274‑CV, 2025 WL 611595 (Tex. App.—San Antonio Feb. 26, 2025, no pet.); Long v. Riedel, 2025 WL 646631 (Tex. App.—Fort Worth 2025, no pet.).
These opinions support the view that evidence already in the court’s file can be used on summary judgment if the party expressly directs the court to it.

III. The Court’s Legal Reasoning

A. Was the No‑Evidence Motion Itself Sufficiently Specific?

The State argued that the claimants’ motion violated Hansen by using vague formulations (“one or more,” “any,” “each”) rather than specifically identifying the challenged elements. The Court agreed with Hansen’s requirement of strict enforcement but found the motion adequate here.

Key reasoning:

Rule 166a(i) requires that a no‑evidence motion “state the elements as to which there is no evidence.”
Language such as “no evidence of one or more elements” is problematic only when it is not further specified.
Here, in the final paragraph of the motion’s argument, the claimants specifically challenged:
- Evidence that the property was used in the manner described in Paragraph VIII (i.e., in the commission of a Chapter 481 felony), and
- Evidence that the property was “contraband” under Article 59.01(2).
This was enough to put the State on notice of:
- The element of “use in or intended use in a felony” and
- The required “contraband” status for all forfeiture theories (both Health & Safety Code and Penal Code based).
The State’s own response, which focused specifically on evidence that the funds were used in or derived from felonies, confirmed that it understood the challenged elements.

Thus, while reaffirming that generic “one or more” language alone is inadequate under Hansen, the Court holds that a motion that elsewhere identifies the specific challenged elements meets the rule’s requirement.

B. What Does It Mean to “Produce” Evidence Under Rule 166a(i)?

The central issue in the case is how to interpret Rule 166a(i)’s directive that the court “must grant the [no‑evidence] motion unless the respondent produces summary judgment evidence raising a genuine issue of material fact.”

The Court analyzed the plain language:

“Produce” is defined as “to bring forward; present to view or notice.”
“Attach” is defined as “to fasten or affix; join; connect.”
The rule nowhere uses the word “attach” in describing the nonmovant’s obligation.

The official comment to Rule 166a(i) is equally important. It states that a nonmovant:

“is not required to marshal its proof; its response need only point out evidence that raises a fact issue on the challenged elements.”

To “point out” is defined as “to call to others’ attention.” From this, the Court concludes:

To “produce” evidence in this context means to direct the court’s attention to evidence already in the record that supports the nonmovant’s position;
The act of physically attaching copies of documents is one way to do this, but it is not required by the rule’s text;
Attachment does not “magically convert ‘evidence’ into ‘summary judgment evidence’”—if the evidence is already part of the court’s file and is expressly relied upon, it is available for consideration.

The Court emphasizes that while attaching evidence is good practice (it avoids disputes and simplifies the judge’s task), attachment is not a condition precedent to the Court’s consideration of that evidence under Rule 166a(i).

This textual analysis is reinforced by:

Lance, which held similarly under Rule 166a(c) for traditional motions; and
Binur, which recognized that evidence attached to a no‑evidence motion may be considered where it creates a fact issue, implying that reattachment by the nonmovant is unnecessary.

The decision also expressly rejects an overly formalistic reading of “produce” that would effectively read “attach” into the rule. Such a reading:

Conflicts with the plain meaning of “produce” and “point out,” and
Contravenes Texas’s general policy of resolving disputes on the merits rather than on technicalities (Mitschke, Dudley).

C. How Much Specificity Must the Nonmovant Use in “Pointing Out” Evidence?

Even if attachment is unnecessary, a nonmovant cannot simply say, “somewhere in the file there is evidence.” The Court reaffirms two key principles:

A nonmovant must “expressly” point out fact issues in its written response. (Borrowing from McConnell.)
Court and parties are not required to “sift through a voluminous file” in search of supporting evidence. (Borrowing from Rogers, and echoed in more recent cases such as Walker v. Eubanks.)

However, the Court makes clear that:

There is no requirement of “magic words.” (Steinkamp.)
The key question is whether the response makes the trial court aware of:
- The particular item of evidence, and
- How that evidence raises a fact issue on the challenged element(s).

In this case:

The State clearly identified a specific document: “the affidavit of Bryan Bacon” contained in the original notice of seizure.
It told the court where to find it (“the original notice of seizure contains the affidavit”).
It described the affidavit as “forty‑four pages,” further making it easy to locate.
It then summarized the substantive contents it relied upon: undercover buys, observed pill bottles, opioid‑containing packages, acceptance of those packages, bank‑account control, and guilty pleas.

The Court contrasts this with the defective submission in McConnell, where the movant’s motion merely referenced unspecified transcripts and affidavits without explaining how any of them negated particular claims. Here, by contrast, the State tied specific content from the affidavit to the challenged element (that the funds were used in or derived from felony conduct).

The Court explicitly notes that in a more voluminous record, or if the reference had been more general, a different result could follow. But under these case‑specific circumstances, the State’s response satisfied its obligation to “point out” the relied‑upon evidence.

D. Can Evidence Attached to Pleadings Be “Summary Judgment Evidence”?

The claimants argued that even if the affidavit was sufficiently pointed out, it could not be used as summary judgment evidence because it was attached to a pleading. They relied on the rule that pleadings are not evidence.

The Court agrees that:

Parties cannot rely on pleadings themselves—i.e., the factual allegations—as evidence to support or oppose summary judgment. (Regency.)

But it rejects the broader proposition that:

Any document initially filed as an attachment to a pleading is categorically excluded from consideration as summary‑judgment evidence.

The Court reasons:

There is “no rational basis” to treat, for example, a sworn affidavit differently simply because the first time it was filed was as an attachment to a pleading.
The evidence exists in the court’s record as a sworn statement; its legal character as an evidentiary document does not change because of the procedural vehicle used to file it.

Thus, the Court squarely holds that:

“The fact that evidence is in the record by virtue of being attached to a pleading does not render it incompetent as summary judgment evidence.”

Accordingly, the trial court abused its discretion by refusing to consider the Bacon affidavit solely because of its original filing posture.

IV. Impact and Practical Implications

A. For Civil Litigators

This decision has immediate and broad practical consequences for Texas civil practice.

Nonmovants may rely on previously filed evidence—but must do so carefully.
- Lawyers defending against no‑evidence motions can rely on affidavits, deposition excerpts, discovery responses, and other evidence that are already in the court’s file, without reattaching them.
- However, they must:
  - Identify each item of evidence with sufficient particularity (title, date, context, etc.), and
  - Explain how that evidence raises a fact issue on the specific challenged elements.
Best practice remains to attach key evidence.
- Although not required, attaching the crucial exhibits to the response minimizes disputes, clarifies the record, and lessens the trial judge’s search burden.
- Litigators should view reliance on “evidence already on file” as a safety net rather than a default strategy.
Specificity and organization in responses are vital.
- Responses should include:
  - Clear headings keyed to each challenged element,
  - Under each heading, citations to the precise evidence (by exhibit, page, or paragraph) supporting that element, and
  - A brief explanation connecting the evidence to the element.
- Merely stating “see Officer X’s affidavit on file” without more is risky and may be insufficient in a larger record.
Attachments to pleadings are valid evidentiary sources.
- Litigators can treat affidavits and other sworn documents attached to pleadings as part of the potential summary judgment evidence pool, so long as they are properly authenticated or otherwise admissible, and expressly incorporated in the response.

B. For Trial Courts

The opinion clarifies trial judges’ obligations when ruling on no‑evidence motions:

If the nonmovant files no response at all, a proper no‑evidence motion must be granted. The court is not required to comb the record sua sponte for evidence the nonmovant never invoked.
If the nonmovant does respond and:
- Expressly identifies specific items of evidence in the court’s file, and
- Explains how those items raise a fact issue on challenged elements,
then the court must consider that evidence—whether or not it is attached to the response.
A refusal to consider such evidence on a mistaken belief that the rules require attachment constitutes a legal error and thus an abuse of discretion.
Trial courts retain broad discretion to evaluate the substantive sufficiency and admissibility of the evidence (e.g., whether an affidavit is conclusory, hearsay, speculative, or otherwise inadmissible).

C. For Appellate Courts and Future Rule 166a(i) Litigation

The decision moves Texas law toward greater uniformity on several recurring issues:

Attachment requirement resolved.
The Court’s holding resolves a developing split in the courts of appeals, aligning them with decisions like Steinkamp, Ramirez, Huntress, and Cerda, and expressly disapproving the Amarillo court’s more rigid reading.
Guidance on combined motions.
Building on Binur and Town of Dish, the Court reinforces that:
- Combined traditional/no‑evidence motions are permissible;
- A no‑evidence portion may be granted even if the traditional portion lacks merit, if the nonmovant fails to respond to the no‑evidence grounds;
- In either context, record evidence expressly referenced and specified may be considered even if not attached to the particular motion or response.
Clarified approach to voluminous records.
By drawing a line between:
- Improper general references to a “voluminous record,” and
- Acceptable, targeted references to particular documents and their substantive content,
the Court gives appellate courts a standard for reviewing future 166a(i) disputes.

D. For Forfeiture and Other Substantive Areas

Although the case arises in a forfeiture context, its holdings are procedural and apply across substantive areas. That said, the decision is particularly significant in contexts where:

Statutes require certain evidentiary showings or affidavits to be filed at the outset (as in Chapter 59 forfeitures); and
Those early‑filed documents may become central to later dispositive motions.

Litigators in forfeiture, family law, consumer cases, and commercial litigation alike can use this opinion to avoid forfeiting potentially dispositive evidence merely because it was filed in an earlier phase of the case.

V. Complex Concepts Simplified

A. What Is a No‑Evidence Motion for Summary Judgment?

Under Texas Rule 166a(i), after the parties have had an adequate time for discovery, a party can file a “no‑evidence” motion for summary judgment. In plain terms:

The movant (usually a defendant) says: “There is no evidence for one or more essential elements of the other side’s claim.”
This shifts the burden to the nonmovant (usually the plaintiff) to come forward with evidence showing there is a genuine factual dispute on those elements.
If the nonmovant fails to do so, the trial court must grant the motion and dispose of the claim.

This is different from a “traditional” motion for summary judgment under Rule 166a(c), where the movant must affirmatively prove there is no genuine issue of material fact and that it is entitled to judgment as a matter of law.

B. “Produce” vs. “Attach” Evidence

Produce evidence (in Rule 166a(i)) means: “bring evidence forward and present it to the court’s attention.”
Attach evidence means: “physically include copies of documents as exhibits” to the motion or response.

The Supreme Court has now clarified that Rule 166a(i) requires the former, not the latter: you can “produce” evidence by directing the court to evidence already in the record and explaining its significance, without necessarily re‑attaching it.

C. What Does It Mean to “Point Out” Evidence?

To “point out” evidence, a party must:

Identify the particular document, testimony, or exhibit (e.g., “the affidavit of Officer Bryan Bacon attached to the Original Notice of Seizure”), and
Explain, even briefly, what that evidence shows and how it supports or defeats a specific element in dispute.

It is not enough to:

Say “there is evidence in the file,” or
Make a general reference to “the depositions and records previously filed.”

D. Abuse of Discretion When Misapplying Legal Rules

A trial court has discretion in managing cases and in evidentiary rulings. But it has no discretion to misinterpret a law or procedural rule. When the trial court:

Misunderstands what Rule 166a(i) requires (e.g., by insisting on attachment where the rule does not require it), and
Bases its ruling on that misunderstanding,

that is a legal error and therefore an abuse of discretion, warranting reversal on appeal.

E. “More Than a Scintilla” of Evidence

To defeat a no‑evidence motion, the nonmovant does not need to win the case at the summary judgment stage. Instead, it must show “more than a scintilla” of evidence—i.e., some evidence on which reasonable jurors could differ. This is a low threshold:

If the evidence is so weak that it does no more than create a “mere suspicion” of a fact, it is less than a scintilla and will not suffice.
If it would allow a reasonable factfinder to decide the issue in favor of the nonmovant, it is more than a scintilla and summary judgment must be denied.

In this case, the Supreme Court expressly did not decide whether the Bacon affidavit meets this standard. That question is left for the trial court on remand.

Conclusion

The State of Texas v. $3,774.28, et al. significantly clarifies Texas no‑evidence summary judgment practice under Rule 166a(i). The Court establishes three core principles:

No‑evidence motions must still be specific.
Movants must identify the particular elements for which they contend there is no evidence. Generic “one or more” language remains insufficient unless the motion elsewhere clearly pinpoints the challenged elements. Here, by tying the challenge to the “use in felony” and “contraband” elements, the claimants complied with Rule 166a(i).
Nonmovants need not attach previously filed evidence to “produce” it.
Under the rule’s plain language and commentary, a nonmovant “produces” evidence by pointing it out—calling the court’s attention to specific items already within the record and explaining how they create a fact issue. There is no categorical requirement to reattach those items to the response.
Evidence attached to pleadings is competent summary judgment evidence if properly invoked.
While pleadings themselves are not evidence, affidavits and other documents attached to them do not lose their evidentiary character merely because of where they first appear. When expressly referenced and relied upon, they must be considered as part of the summary judgment record.

The opinion reinforces a consistent theme in Texas jurisprudence: courts should prioritize adjudicating cases on their substantive merits rather than imposing unnecessary formalistic hurdles. For practitioners, it underscores both the flexibility and responsibility embedded in Rule 166a(i):

Flexibility, because counsel may rely on the existing record without duplicative attachments; and
Responsibility, because counsel must carefully and expressly direct the court to the exact evidence that raises a fact issue.

By reversing the court of appeals and remanding, the Supreme Court ensures that the forfeiture claims will be evaluated in light of all properly invoked evidence—not foreclosed by a misreading of the procedural rules. The ruling will guide Texas courts and litigants in many future summary judgment disputes, beyond the forfeiture context, wherever Rule 166a(i) no‑evidence motions are deployed.