By Stephen A. Dwyer, Attorney

For many years, practitioners have used Section 18.001 of the Texas Civil Practice and Remedies Code as a strong weapon in their arsenal for proving damages. The statute works to allow a claimant to essentially prove up damages prior to trial by simply serving an affidavit with an itemized statement of services and charges that states the services received were reasonable and necessary. The frequent way this has played out is the plaintiff served her records and affidavits without drawing attention to them causing the defendant to either miss them or scramble to find experts to controvert the bills within 30 days. If the defending party did not file a counter-affidavit controverting the charges, then the evidence was deemed legally sufficient to support a fact finding without the need for the expert’s testimony at trial. Of course, this did not relieve the claimant from proving causation. The affidavits could come at any time at least 30 days before trial and could even be buried in a large stack of document production. I know this because I started my career advocating for personal injury claimants and would often use this strategy to my client’s benefit. It was especially effective because courts strictly enforced the deadlines on defendants. However, this strategy was completely changed recently with HB 1693.

HB 1693 completely reformed the deadlines for cases filed on or after September 1, 2019. The old 30-day deadlines are no more. Before the changes, the statute worked more to the benefits of plaintiffs and the detriment of defendants. But now the statute puts strict deadlines on both sides.

Plaintiff’s New Deadlines

Subsection (d) now requires the plaintiff who has already received and paid for services to serve a copy of the affidavit to the defendant by the earlier of:

  1. 90 days after the date the defendant files its answer,
  2. the date the party offering the affidavit must designate its experts by court order, or
  3. the date the party offering the affidavit must designate expert witnesses per the Texas Rules of Civil Procedure.

This change demands a plaintiff to be keenly aware of each of these deadlines and the venue she is in. Does the court automatically issue its own docket control order like in the major metropolitan counties? Does it default to the Rules of Civil Procedure? If so, which discovery level should the plaintiff plead into?

Subsection (d-1) provides a different framework if the plaintiff received services from a provider for the first time after the defendant files an answer. Here, the plaintiff must serve the affidavit by the expert designation deadline by either court order or Rules of Civil Procedure, whichever comes first. It is common for a plaintiff to begin receiving new services after filing suit. But this new change could affect when the plaintiff chooses to begin those services. If she begins receiving them between filing suit and the defendant’s answer, she will operate under Subsection (d) and likely have 90 days after the answer to serve her affidavit. But if she waits to begin until the defendant answers, Subsection (d-1) will govern and she will have considerably more time.

If the plaintiff continues to receive services after the applicable deadline, she may supplement the affidavit on or before 60 days before trial in accordance with Subsection (h)(1). This does not give the plaintiff a “get out of jail free” card if she missed the original deadline. The key here is the way the statute reads. Serving the original affidavit is a condition precedent.

The final requirement for the plaintiff, found in Subsection (d-2) is she must file notice with the clerk that she served the affidavit. This was not required before, but it does line up with the filing requirement for business record affidavits. Practically, this works to give the defendant additional notice that he needs to react if he wants to controvert the services and bills.

While most practitioners may think only personal injury attorneys and medical services are affected here, that is not the case. All sorts of plaintiffs can use 18.001 affidavits for their benefit, such as claimants paying for construction services to repair damages to their home or to seek attorney’s fees when recoverable. Even defendants can use the statute to their advantage if the contract being sued on has an attorney’s fees shifting provision. At West Mermis, we have successfully used 18.001 affidavits when representing homeowner plaintiffs and in breach of contract cases too.

Defendant’s New Deadlines

Like before, once a defendant receives an 18.001 affidavit, he must decide whether he wants to hire an expert to controvert it with a counter-affidavit. There are two deadline frameworks set by the statute and the defendant must first determine which one he is operating under. Subsection (e) provides deadlines for when the plaintiff served an affidavit for services rendered prior to the defendant filing an answer. Subsection (e-1) provides deadlines for when a claimant offers an affidavit for services rendered after an answer.

When a defendant wants to controvert a plaintiff’s 18.001 affidavit for services rendered prior to answering, the defendant, like the plaintiff, must do so by the earlier of three deadlines:

  1. 120 days after filing its answer,
  2. the date the party offering the counter-affidavit must designate his expert witnesses under the court’s order, or
  3. the date the party offering the counter-affidavit must designate his expert witnesses per the Texas Rules of Civil Procedure.

This change is the most significant for a defendant wanting to provide a counter-affidavit because now he has more time than under the previous version. Prior to this change, the defendant had 30 days to retain an expert and produce a counter-affidavit in every scenario. Under the current version, the defendant could still be put in that position. But on the other hand, he could end up having significantly more time. For example, the plaintiff could still produce her 18.001 affidavits on the 90th day after the defendant files his answer, thereby still limiting him to 30 days to respond. But if the plaintiff serves her affidavits with her original petition, the defendant has at least 20 days to file his answer and then another 120 days to retain an expert and file his counter-affidavits for a total of more than four months to respond.

When a plaintiff serves an affidavit for services performed after the defendant answers, Subsection (e-1) also provides the defendant more time than before. In this scenario, the defendant must respond with a counter-affidavit by 30 days after receiving the affidavit or by the deadlines for designating his experts via a court order or the Rules of Civil Procedure. Whichever date is the latest, that is the one the defendant operates under. To illustrate this point, the plaintiff serves an affidavit for newly begun services six months into litigation on January 1st. The court signed a docket control order where the defendant must designate his experts by July 1st. Here, the defendant has seven months to serve a counter-affidavit rather than scrambling to controvert by January 31st.

If the plaintiff supplements a timely, previously served affidavit, the defendant can supplement his own counter-affidavit up to 30 days before trial per Subsection (h)(2). Like Subsection (e), this potentially can give the defendant more than 30 days to respond because the statute does not start the 30-day clock like the old version. Assume a plaintiff timely served her original affidavit and the defendant timely filed a counter-affidavit. If the plaintiff supplements her original affidavit four months before trial, the defendant can wait three months to respond—until 30 days before trial—to serve his supplemented counter-affidavit.

Likewise with the plaintiff, the defendant must file written notice with the clerk when serving the counter-affidavit to the plaintiff per Subsection (g). This does not necessarily have the same additional practical notice effect that it does for defendants, but it does add an additional requirement that defendants must be aware of to timely controvert a plaintiff’s affidavit.