Justice Jeff Brown
Fourteenth Court of Appeals
Houston, Texas
Rule 166a
 Either the plaintiff or defendant in a lawsuit may
“move with or without supporting affidavits for a
summary judgment in his favor upon all or any part
thereof.” Tex. R. Civ. P. 166a(a), (b).
 “Supporting and opposing affidavits shall be made on
personal knowledge, shall set forth such facts as would
be admissible in evidence, and shall show affirmatively
that the affiant is competent to testify to the matters
stated therein.” Tex. R. Civ. P. 166a(f).
What exactly is an affidavit?
 An affidavit is a “statement in writing of a fact or facts signed by
the party making it, sworn to before an officer authorized to
administer oaths, and officially certified to by the officer under
his seal of office.” Tex. Gov’t Code § 312.011(a).
 An affidavit typically includes “the caption or title, the venue, the
signature of the affiant, the jurat and the body of the
instrument.” Acme Brick v. Temple Assocs., Inc., 816 S.W.2d 440,
441 (Tex. App.—Waco 1991, writ denied).
 Substance and not form is what’s significant. Govant v. Houston
Cmty. Coll. Sys., 72 S.W.3d 69, 72 (Tex. App.—Houston [14th
Dist.] 2002, no pet.).
What’s a “jurat”?
 A “certificate by a competent officer that the writing
was sworn to by the person who signed it.” Huckin v.
Connor, 928 S.W.2d 180, 183 (Tex. App.—Houston
[14th Dist.] 1996, writ denied).
“Further affiant sayeth naught.”
 It’s “ah-FYE-ant” not “AF-fee-ant.”
 “Sayeth” and “saith” are both
acceptable Elizabethan spellings.
 It’s “naught” not “not.”
 It’s totally unnecessary.
Summary-judgment deadlines
 Movant must file affidavits with the motion, at least 21
days before the hearing. Tex. R. Civ. P. 166a(c).
 Except on leave of court, respondent must file
opposing affidavits not later than 7 days before the
hearing. Id.
Leave to late-file opposing affidavits
 Must establish good cause by showing:
 Failure to file timely was not intentional or due to
conscious indifference but instead the result of accident
or mistake and, and
 allowing late filing will cause no undue delay or
otherwise injure the movant.
 Or just ask for a continuance of the hearing. . . .
Factual statements in the affidavit
 Three requirements:
 “made on personal knowledge”
 “set forth facts as would be admissible in evidence”
 “show affirmatively that the affiant is competent to
testify”
Personal knowledge
 An affidavit must “positively and unqualifiedly” show
that the facts asserted are true and within the affiant’s
personal knowledge. Humpreys v. Caldwell, 888
S.W.2d 469, 470 (Tex. 1994) (per curiam).
 Merely reciting that an affidavit is made on personal
knowledge is insufficient. Instead, the affidavit must
go further and disclose the basis on which the affiant
has personal knowledge of the facts asserted. Southtex
66 Pipeline Co., Ltd. v. Spoor, 238 S.W.3d 538, 543–44
(Tex. App.—Houston [14th Dist.] 2007, pet. denied).
How to establish
personal knowledge?
 Not just job title, but specific description of affiant’s job
duties. Valenzuela v. State & Cnty. Mut. Fire Ins. Co., 317
S.W.3d 550, 553 (Tex. App.—Houston [14th Dist.] 2010, no
pet.).
 Specific explanation of how affiant became familiar with
the facts in the affidavit. Radio Station KSCS v. Jennings,
750 S.W.3d 760, 761-62(Tex. 1988) (per curiam).
Magic words required?
 Affidavit need not expressly state it’s made on personal
knowledge if the statements in the affidavit show the
affiant was speaking from personal knowledge. See
Pipkin v. Kroger Tex., L.P., 383 S.W.3d 655, 669 (Tex.
App.—Houston [14th Dist.] 2012, pet. denied).
 But, an affiant’s statement that is based on “knowledge
and belief” is legally insufficient unless it is expressly
authorized by a statute or rule. See Burke v. Satterfield,
525 S.W.2d 950, 955 (Tex. 1975)
“Uncontroverted testimony of an
interested witness”
 Uncontroverted testimonial evidence of an interested
witness, or of an expert witness as to a subject about
which the trier of fact must be guided solely by expert
opinion, will support summary judgment if:
 the evidence is clear, positive and direct,
 otherwise credible and free from contradictions and
inconsistencies, and
 could have been readily controverted.
 Tex. R. Civ. P. 166a(c).
“Could have been
readily controverted”
 Does not mean evidence could have been easily and
conveniently rebutted.
 Does mean the testimony could have been effectively
countered by opposing evidence.
 Trico Tech. Corp. v. Montiel, 949 S.W.2d 308, 310 (Tex.
1997) (per curiam).
“Set forth such facts as would be
admissible in evidence”
Hearsay statements
 Non-admissible hearsay is not
good summary-judgment proof.
Powell v. Vavro, McDonald &
Assocs., 136 S.W.3d 762, 765 (Tex.
App.—Dallas 2004, no pet.).
 Must be objected to, otherwise
the evidence will support a
summary judgment. See Harrell
v. Patel, 225 S.W.3d 1, 6 (Tex.
App.—El Paso 2005, pet. denied).
Conclusory statements
 Also not good summary-
judgment evidence. Wadewitz v.
Montgomery, 951 S.W.2d 464, 466
(Tex. 1997).
 Whether legal or factual, expert
or lay, no objection is necessary to
preserve error. See Transcon. Ins.
Co. v. Briggs Equip. Trust, 321
S.W.3d 685, 700 (Tex. App.—
Houston [14th Dist.] 2010, no pet.)
(conclusory statements cannot
raise a fact issue even if they draw
no objection).
More on conclusory statements. . .
 A conclusory statement is one that does not provide the
underlying facts to support the conclusion.
 An affidavit that is nothing more than a sworn repetition of
the allegations in the pleadings is conclusory and has no
probative force. Brookshire Katy Drainage Dist. v. Lily
Gardens, LLC, 333 S.W.3d 301, 308 (Tex. App.—Houston [1st
Dist.] 2010, pet. denied).
 To avoid being conclusory, statements need factual
specificity such as time, place, and the exact nature of the
alleged facts. Southtex 66 Pipeline Co., Ltd. v. Spoor, 238
S.W.3d 538, 543–44 (Tex. App.—Houston [14th Dist.] 2007,
pet. denied).
Exhibits
 “Sworn or certified copies of all papers or parts thereof
referred to in an affidavit shall be attached thereto or
served therewith.” Tex. R. Civ. P. 166a(f).
 A properly sworn affidavit stating that the attached
documents are true and correct copies of the originals
authenticates the copies so they may be considered as
summary-judgment evidence. Kleven v. Tex. Dept. of
Criminal Justice–I.D., 69 S.W.3d 341, 345 (Tex. App.—
Texarkana 2002, no pet.).
 No “magic words” required so long as the affiant has
verified the accuracy of the documents. Llopa, Inc. v. Nagel,
956 S.W.3d 82, 87 (Tex. App.—Texarkana 2002, no pet.).
What won’t work
 Unauthenticated or unsworn documents, or
documents not supported by any affidavit, are not
proper summary-judgment evidence. Llopa, Inc, 956
S.W.2d at 87.
 Unverified documents attached to pleadings are not
proper summary-judgment evidence. Heirs of Del Real
v. Eason, 374 S.W.3d 483, 487–88 (Tex. App.—Eastland
2012, no pet.).
Anticipate objections. . . .
 To assure attachments are considered competent
summary-judgment evidence, affidavit should address
possible objections to admissibility, such as hearsay.
 See, e.g., Norcross v. Conoco, Inc., 720 S.W.2d 627, 632
(Tex. App.—San Antonio 1986, no writ) (affidavit that
failed to lay a predicate under hearsay exception for
admissibility of invoices as business records under
Rules of Evidence 803(6) and 902(10) offered no
competent summary-judgment evidence).
Beware of the bad-faith affidavit
 A trial court may require a party who presents a summary-
judgment affidavit in bad faith or solely for the purpose of
delay “to pay to the other party the amount of the
reasonable expenses which the filing of the affidavits
caused him to incur, including reasonable attorney’s fees,
and any offending party or attorney may be adjudged guilty
of contempt.” Tex. R. Civ. P. 166a(h).
 Only a party can be sanctioned and ordered to pay the
other party’s reasonable expenses; in contrast, either the
party or his attorney may be held in contempt. Ramirez v.
Encore Wire Corp., 196 s.W.3d 469, 476 (Tex. App.—Dallas
2006, no pet.).
And, depending on where you are,
beware of the “sham affidavit”
 Under the “sham affidavit” doctrine, a party cannot file an
affidavit to contradict his own deposition testimony for the
purpose of creating a fact issue to avoid summary
judgment without any explanation for the change in the
testimony. See Farroux v. Denny’s Rests., Inc., 962 S.W.2d
108, 111 (Tex. App.—Houston [1st Dist.] 1997, no pet.).
 In addition to the First Court of Appeals in Houston, the
doctrine is also followed by the Amarillo, Austin, Eastland,
El Paso, and Texarkana courts of appeals.
Rejecting Farroux
 Courts rejecting the doctrine conclude that if a deposition and
an affidavit conflict, there’s necessarily a fact issue.
 The Corpus Christi and Waco courts of appeals have expressly
rejected Farroux, and the Dallas, Fort Worth, San Antonio, and
Tyler courts appear to have done so as well.
 The Supreme Court of Texas has not specifically addressed the
doctrine, though those courts rejecting it cite Randall v. Dallas
Power & Light Co., 752 S.W.2d 4, 5 (Tex. 1988) (per curiam), for
support of their position.
 See also “The Sham Affidavit Doctrine in Texas,” 66 TEX. B.J. 969
(2003), by Judge Randy Wilson.
Drafting tips. . . .
 Don’t be afraid to use headings to make your affidavit easier
to read.
 Remember that the text of an affidavit is actually direct
testimony by the affiant.
 Carefully select the affiant (or affiants).
 Anticipate objections.
 Anticipate cross-examination.
 Make sure the affidavit is in the witness’ own words.
Further affiant
sayeth naught.