by JoAnn Storey
To preserve the complaint that an affidavit does not meet the Government Code’s definition of affidavit, you must object in the trial court. Mansions in the Forest v. Montgomery County, 365 S.W.3d 314, 317-18 (Tex. 2012) (disapproving cases to the contrary).
The Government Code defines “affidavit” as “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(1).
In Mansions in the Forest, the purported affidavit did not contain any statement in which the affiant swore to the truth of his testimony and, further, the notary’s certification stated that the affiant acknowledged, rather than swore to, his statements.
Although the court held that neither the Government Code nor the summary-judgment rule require an affidavit to contain a “jurat” (a certification by an authorized officer stating that the writing is sworn to before the officer), “the record must contain some evidence that the purported affidavit was sworn to by [the affiant] before an authorized officer.” Id. at 317.
Bottom line:
1. Make sure your affidavits meet the statutory definition. Add a jurat for belt and suspenders.
2. If your opponent’s affidavit lacks any of the Government Code requirements, object in the trial court to preserve the complaint (and get a ruling).