Texas Affidavit Requirements for Continuances and Motions

Texas affidavit requirements for continuances and motions come from a handful of overlapping rules: the document must be a written statement of specific facts based on personal knowledge, signed by the person making it, and either sworn before a notary or court clerk with a proper jurat or executed as an unsworn declaration under penalty of perjury. For continuances, Rules 251 and 252 add a detailed showing about why the delay is necessary. For summary judgment and similar motions, Rule 166a requires that the facts be admissible in evidence and that any referenced documents be attached as sworn or certified copies. Miss any of these pieces and the affidavit can be struck.

The Core Elements Every Affidavit Needs

Under Texas Government Code § 312.011, an affidavit is a written statement of facts, signed by the affiant, sworn before an authorized officer, and certified under that officer’s seal.¹ Three pieces have to be present: the written statement, the affiant’s signature, and a certification from someone authorized to administer oaths, usually a notary public though court clerks also qualify. The officer signs a jurat confirming the affiant appeared in person and swore to the truth of what was written.² Without a proper jurat, Texas courts can disregard the document entirely.

The affiant also has to have personal knowledge of the facts. Texas Rule of Evidence 602 limits a witness to matters they personally observed or were directly involved in.³ The opening lines of the affidavit should say so directly: that the affiant is competent to testify, that the facts stated are within personal knowledge, and that they are true and correct. Skip that foundation and the other side has an easy objection waiting.

A Texas notary can charge up to $10 for administering the oath with a certificate and seal.⁴ Mobile notaries may add travel fees, but the notarial act itself is capped by statute.

Affidavits Supporting a Motion for Continuance

Texas Rule of Civil Procedure 251 does not allow a continuance except for sufficient cause supported by affidavit, by consent of the parties, or by operation of law.⁵ A bare request to reset a trial date will not get you there. The sworn statement has to lay out in detail why the delay is necessary and what you did to try to avoid it.

When the reason is a missing witness, Rule 252 adds a specific checklist. The affidavit has to establish:

That the witness’s testimony is material, with an explanation of why it matters to the case.
The specific steps taken to secure the witness’s attendance, such as issuing subpoenas or contacting the witness early, and why those efforts failed.
That the same testimony cannot be obtained from any other source. This particular showing is not required on a first continuance.
The name and residence of the absent witness and what the party expects them to say.
That the continuance is sought so that justice may be done, not for delay.

Rule 252 also draws a hard line on depositions. If the witness lives within 100 miles of the courthouse, failing to depose them will not count as due diligence unless the witness is too ill or too old to attend, is otherwise physically unable, or has already left the county or state.⁶ Judges expect you to depose nearby witnesses rather than seek a delay because one did not appear.

Medical Continuances

When a party or key witness cannot attend because of illness or injury, a one-line doctor’s note usually is not enough. A physician’s affidavit form used in Texas administrative practice requires the doctor to address the nature and severity of the condition, whether the person is too ill to attend on the scheduled date, whether attending would jeopardize their health, the prognosis for recovery, and the date by which the person can participate.⁷ District courts often want the same level of detail. A vague statement that someone is “under medical care” rarely satisfies a judge with a full docket.

Affidavits Supporting Motions, Especially Summary Judgment

Summary judgment motions carry their own affidavit standard. Under the current Texas Rule of Civil Procedure 166a(j)(4), an affidavit or declaration must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant is competent to testify to the matters stated.⁸ Competence usually means describing your professional role, your relationship to the dispute, or how you came to witness the events.

Any document referenced in the affidavit, whether a contract, medical record, invoice, or photograph, must be attached as a sworn or certified copy.⁸ Attaching unsworn copies, or skipping the attachment entirely, gives the other side a straightforward authenticity objection. The affiant should identify each exhibit by name and state that the attached copies are true and correct reproductions of the originals.

Every factual statement in the affidavit needs to rest on something concrete the affiant actually observed or did. Broad generalizations, legal conclusions, and language that just restates what the law requires carry no evidentiary weight. Texas courts call those “conclusory” statements, and they are the single most common reason affidavits get challenged. If your affidavit says “the defendant was negligent” rather than describing what the affiant saw the defendant do, you have written argument, not evidence.

Unsworn Declarations Instead of Notarization

Texas Civil Practice and Remedies Code § 132.001 lets an unsworn declaration substitute for an affidavit in most situations where a sworn statement is required by statute or rule.⁹ This is useful when a notary is not available or time is tight.

The declaration must be in writing, signed by the declarant, and include a jurat in substantially the form the statute prescribes. That jurat requires the declarant’s full name, date of birth, and address, followed by the statement, “I declare under penalty of perjury that the foregoing is true and correct,” along with the date and location of execution.⁹ Inmates and state agency employees have slightly different prescribed forms, but the core elements are the same. Rule 166a(j)(4) expressly recognizes declarations alongside affidavits for summary judgment purposes, so courts routinely see them.⁸

The substitution has limits. An unsworn declaration cannot take the place of an oath of office, an oath that must be taken before a specified official other than a notary, a lien filed with a county clerk, or an instrument concerning real or personal property that must be filed with a county clerk. Those still require a traditional notarized affidavit.

When the Affidavit Is Attacked

The most common attack on a weak affidavit is a motion to strike, typically on the grounds that it contains conclusory statements, lacks personal knowledge, or includes inadmissible hearsay. Courts often take a targeted approach, striking the defective portions and keeping the rest.

Rule 166a(j)(4) builds in a safety net: defects in the form of an affidavit or its attachments will not be grounds for reversal on appeal unless the opposing party specifically pointed out the defect by objection and the offering party had the chance to fix it but refused.⁸ The practical lesson runs both ways. If your affidavit is objected to, file a corrected version rather than fighting about whether the original was good enough; appellate courts have little sympathy for parties who dug in on a curable defect. If you are the one objecting, raise it in the trial court. Silence waives the issue.

Criminal Exposure for False Statements

Lying in an affidavit or unsworn declaration is a crime under two separate Penal Code provisions. Basic perjury under § 37.02 applies when a person intentionally makes a false statement under oath or in an unsworn declaration under Chapter 132, knowing it is false. That offense is a Class A misdemeanor, punishable by up to one year in jail, a fine of up to $4,000, or both.¹⁰¹¹

The stakes rise when the false statement is made during or in connection with an official court proceeding and is material to the outcome. That triggers aggravated perjury under § 37.03, a third-degree felony.¹² Because affidavits supporting motions and continuances are filed in court and typically address material issues, a false statement in one of these documents can land squarely in felony territory.

Filing and Serving the Affidavit

Once the affidavit is notarized, or the unsworn declaration is properly signed and dated, it goes through the electronic filing system administered by the Office of Court Administration. Texas Rule of Civil Procedure 21 requires attorneys to e-file in courts where electronic filing has been mandated, which now covers virtually every Texas court.¹³ The filing generates a time-stamped record for the court file, and a Certificate of Service, signed by the filer or their attorney, must appear on the document confirming that a true copy has been delivered to all other parties. The e-filing system handles service automatically for registered parties, but the certificate still has to be on the face of the filing.

1
State of Texas. Texas Government Code GOV’T 312.011
2
Justia. The Mansions in the Forest, L.P. v. Montgomery County, Texas
3
Texas Judicial Branch. Texas Rules of Evidence – Rule 602
4
State of Texas. Texas Government Code 406.024 – Fees Charged by Notary Public
5
Texas Judicial Branch. Texas Rules of Civil Procedure – Rule 251
6
Texas Judicial Branch. Texas Rules of Civil Procedure – Rule 252
7
State Office of Administrative Hearings. Medical Excuse Affidavit – Motion for Continuance
8
Texas Judicial Branch. Texas Rule of Civil Procedure 166a
9
State of Texas. Texas Civil Practice and Remedies Code CIV PRAC and REM 132.001
10
State of Texas. Texas Penal Code PENAL 37.02 – Perjury
11
State of Texas. Texas Penal Code PENAL 12.21 – Class A Misdemeanor
12
State of Texas. Texas Penal Code 37.03 – Aggravated Perjury
13
South Texas College of Law Houston. Texas Rules of Civil Procedure Rule 21 – Filing and Serving Pleadings and Motions