An affidavit is a written statement of facts, signed by the person making the statement and sworn to and certified by an administrator of oaths. The certification of an affidavit needs to be under the oath administrator's seal of office. Tex. Gov't Code 312.011.
According to custom and practice, an affidavit should have a caption ("Affidavit of _____"), state the venue, including state and county, and contain a certification from the person before whom the writing was sworn below the signature of the affiant.
According to case law, absence of a certification from the person before whom the writing was sworn is a substantial defect. Without it, the statement is not considered an affidavit.
Every person is competent to be a witness except for the following:
Insane persons, and
Persons lacking sufficient intellect.
A witness may testify to a matter only if evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. Tex. R. Evid. 602 (amended eff 4/1/15).
Information and Belief
An affidavit supporting a motion to recuse a judge may be based on the affiant's information and belief if the grounds of such information and belief are clearly stated. Tex. R. Civ. P. 18a (a).
Whenever it may be necessary or proper for any party to a civil suit or proceeding to make an affidavit, it may be made by either the party or his agent or his attorney. Tex. R. Civ. P. 14.
Certain interrogatories take the form of affidavits and are required to be signed only by the party and not by his agent. Tex. R. Civ. P. 197.2(d) (amended eff 1/1/21).
Case law holds that the affiant must swear to the authenticity of an exhibit in the body of the affidavit.
When a minor or lunatic sues with the help of a "next friend," the next friend must either provide security for costs or an affidavit in lieu of such security in order to attain the rights of a guardian. Tex. R. Civ. P. 44(1).
An affidavit showing service of a notice provides prima facie proof of the fact of service. Tex. R. Civ. P. 21a(e) (amended eff 1/1/14).
The fact of incorporation of a public or private corporation can be denied by the affidavit of an adverse party. Tex. R. Civ. P. 52.
An affidavit can be used to verify the following:
1. The plaintiff or defendant has no legal capacity to sue or be sued;
2. The plaintiff or defendant has no capacity to recover or be liable;
An affidavit can be used to rebut the following presumptions:
1. That the party executed the written instrument being sued upon;
2. That a claim for damages has been notified or proved;
An affidavit may be used to support a motion for reinstatement of a suit if it is dismissed for want of prosecution. Tex. R. Civ. P. 165a(3).
Summary judgment proof is offered by way of affidavit. Tex. R. Civ. P. 166a.
When the court orders an audit of the parties in the interests of justice, an auditor is required to affirm by affidavit his findings. Tex. R. Civ. P. 172.
A party to a suit may challenge the array of the jury, before it is drawn, in an affidavit setting out that the officer summoning the jury has been corrupt in his actions, or has knowingly summoned jurors known to be prejudiced in the matter. Tex. R. Civ. P. 221.
An affidavit may be used to verify a petition to a court, to seek the court's orders authorizing the oral examination of a person whose testimony may be required in a potential claim, or to investigate a potential claim. Tex. R. Civ. P. 202.2.
A person seeking stay of execution of a judgment is required to file an affidavit. Such affidavit must aver that the person has no means to pay the judgment and that execution within three (3) months will cause him undue hardship or sacrifice of property that otherwise would be avoided if the execution is stayed. Tex. R. Civ. P. 635.
When a distress warrant, writ of execution, sequestration, or attachment is made upon a property and this property is claimed by a non-party, the claimant can make an application in court setting forth his claim. This application may be supported by an affidavit. See Tex. R. Civ. P. 717.
A party can establish a court of appeals' inability to act immediately in an affidavit. Tex. R. App. P. 17.1.
All factual statements in an appeal must be verified by the parties in an affidavit. Tex. R. App. P. 52.3.
In determining foreign law, the court may consider any material or source, whether or not admissible. Tex. R. Evid. 203 (amended eff 4/1/15)
The original or a copy of a record that meets the requirements of Rule 803(6) or (7), if the record is accompanied by an affidavit that complies with subparagraph (B) of this rule and any other requirements of law, and the record and affidavit are served in accordance with subparagraph (A). Tex. R. Evid. 902(10) (amended eff 4/1/15)
A form of affidavit is available at Tex. R. Evid. 902(10)(b) (amended eff 4/1/14).
When requested by the court, a default prove-up may be made through affidavits, without a hearing. Dallas County L.R. 2.10.
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