NO. 07-04-0254-CV IN THE COUR

T OF APPEALS FOR THE SEVEN TH DISTRICT OF TEXAS

AT AMARILLO PANEL D JULY 19, 2004

______________________________ MIC HAEL BAILEY, M.D., JAN ROWDEN, P.A., and METHODIST H OSPITAL LEVELLAND d/b/a LE VELLAND CLIN IC, Appellants
v. JAN A HU TCHI NS, IND IVID UALL Y an d as REPR ESEN TATIV E of t he ES TATE o f MICHAEL HU TCHINS, DEC EASED, Appellee

_________________________________ FROM THE 286 TH DISTRIC T COURT O F HOCKLEY CO UNTY; NO. 03-09-19,288; HON. HAROLD PHELAN, PRES IDING

_______________________________

Opinion

_______________________________ Before QUINN, REAVIS, and CAMPB ELL, JJ. In this interlocutory appeal, we are asked to determine if the mailbox rule contained in Rule 5 of the Rules of Civil P rocedure appli es to suits mai led immediately before the eff ecti ve date of a s tatute but re ceived thereafter. The sta tute in question is commonly known as House Bill 4 and found in chap ter 74 of the Texas Civil Practice and Remedies Code; it concerns

medical malpra ctice action s. Accordi ng to the appellants(Michael2

Bail ey, M.D., Jan Rowden, P .A., and Methodist Hospital Levelland , who we collectively refer to as the Hospital) , the trial court erred in refusing to dismiss the suit because J ana Hutchins, ind iv idua lly

and a s re pres enta tiv e of t he es tate of Micha el Hutchins, failed to comply with various prov isions of the r ecently enac

ted legisl ation. We aff irm the order of the trial court. Background The record discloses that Hutchins sued the appellants for medi cal malpracti ce. It is undisputed that her

original petition was mailed, v ia United States first class mail, to the Hockley County Distric t Clerk on August 29, 2003. Furthermore , the distri ct clerk r eceived the mailing on September 2, 2003. Atthe time the plead ing was depo s ited in the mail , statute obli gated Hutchi ns to
serve her exper

t report on eac h party w ithin 180 days of the date the suit w as filed. T EX
. R EV
. C IV
. S TAT
. A NN
. art. 4590i §13.01( d) (Vernon Supp . 2003). Yet , when the in strument
was actually

received by the cour

t clerk, a new

statutory

provisi on had b ecom e ef fec tive which reduced the 180- day period to 120 day s. See T EX
. C IV
. P RAC
. & R EM
. C ODE A NN
. §74.351(a) (Ver non Supp. 2004) (reducing the period to 12 0 days); Act of June 2, 2003, 78 th Leg., R.S., ch. 204, §23.02(d) , 2003 Tex. Gen. Laws 89 8 (stating that the Act became effective on September 1, 2003). Hutchins fil ed her exper t report on F ebruary 26, 2004,
a date withi n the former perio d but out side the latt er. Thereafter, theHospital moved to dismiss the su i t contending t hat the report w as tardy. See T EX
. C IV
. P RAC
. & R EM
. C ODE A NN
. §74.351(b)(2)

(Vernon Supp. 200 4) (requi ring the tr ial court to dis miss the claim if the1 An inte rlo cu tor y ap pe al m ay b e b ro ug ht f ro m an ord er of a dis tric t co ur t tha t de nie s a ll or part of t he

rel ief sought by

motion under

§74.351( b) of t he Texas Civi l Pr acti ce and Remedies Co de. T EX
. C IV
. P RAC
. & R EM
. C ODE A NN
. §51.014(a)(9) (Ve rnon Sup p. 2004).

2 W e d o no te tha t the ef fec tive da te did n ot ap ply to §17 of the Act. A ct of J une 2, 20 03, 78 th Leg. , R.S ., ch. 20 4, § 23.02( b), 2003 Tex. Gen. Laws 898 . However , t hat sect ion i s not i nvol ved i n thi s case. 3 expert reports were not filed wit hin the 120-day per iod). The tri al court deni ed the motion, and the Hospital appealed. 1 Issue In HB 4, the legislature specified that the changes wrought by the bill “applie[d] only to an action filed o n or after the effective date of this Act.” 2 Act of June 2, 2003, 78 th Leg., R.S., ch. 204, §23.02(d) , 2003 Tex. Gen. Law s 899. So too did it sta te that “[a]n ac tion filed before the effective d ate . . . incl uding an acti on filed before that date in whic h a party is joine d or designated after that date, [was] governed by the law in effect immediate ly before the cha nge in law made by this Act, and that law [was] cont inued in effect for that purpose.” Id. As can readily be seen, whether the law in existence prior to HB 4 controls depends upon when Hut chins “filed”her claim. She contends that s he di d so pr ior to September

1 st because the petit ion was deposited in th e mail on Augus t 29, 2003. On the other hand, the H ospital beli eves that because the item was not actuall y receiv ed by the court clerk unti l September 2, 2003, it was not filed until thatdate. Who is correct depends
on that portion of

Rule 5 of the Texas Rules of Ci vil Pr ocedure know n as the mailbox rule. The mailbox r ule, in one form or another, has long been a principle of our law. For instance, the United States Supreme Court h as applied it to create a pres umption that an item properly

sent through the United States mail w as receiv ed in due course by the addressee. See e.g. Hagner v . United States , 285 U.S. 427, 430-31, 52 S.Ct . 417, 419,4

76 L.Ed. 861, 864-65 (1932). So too has the concep t been utilized to establish the date on which an of fer to co ntra ct wa s accept ed. See e.g. Cantu v. Central Ed. Ag ency , 884 S.W.2d 565, 566 (Tex. App.–Austin 1994, no wr it) (stati ng the mailbox rule prov ides that the pro perly add ressed acceptance of an offer is eff ective when deposited in the mail, unless otherwise agreed or p rovided by law). Furthermore, our own state Supreme Court notonly ackn owledged its exis tence but also i ncorporated the principle i nto the Texas Rules of Civil Procedure. The rule about which we speak is Rule 5. The lat ter, in pert inent part, states: If any document

is sent to the proper clerk by first-class United States mail on or be fore the last day for filing same, the same , if received by the clerk notmore than ten days t ardi ly, shall be filed by the cler k and be deemed filed in time . . . . T EX
. R. C IV
. P. 5. As a pplied, Rul e 5 s erv es t o mod ify the g ener

al r ule req uir ing act ual rec eipt of a pleading by the cour

t clerk before one can consider it filed. See Warner v. Glass , 135 S.W.3d 681, 684 (Tex. 2004) (stating that a pleading is filed w hen left with the court clerk); Reitmey er v. CharmCraft Publi

sher , 619 S.W.2d 441, 442 (Tex. App.–Waco 1981, no wri t) (stating that normally , a ple ading is dee med filed when depo sited wi th the clerk for the purpose of making it a part of the recor d). Indeed, if one compli es with it s terms, then th e United States postal service , in essence, is deemed as a br anch of the clerk ’s office for the limited purpose of filin g the documen t. Milam v. Miller , 891 S.W .2d 1 , 2 (T ex. App.–Amarillo 1994, writ ref’d). Y et, caution must be taken agains t reading t he provis ion
as extendi ng an y a pplicable fili ng date, for it does not; inste ad, it simply defines when a pleading is d eemed fi led. Warner v. Glass , 135 S.W.3d at 684; Milam v. Miller , 8915

S.W.2d at 2. And, upon as signing the wordscont ained in it t heir plain mea ning, we construe the rule tomerely sa y that if one has to file a pleadi ng by a c ertain date, then the instrument

will be considered so filed if sent by properly addressed and sta mped first class mail on or before the day on which it must be filed. See In re Steiger , 55 S.W.3d 168, 171 (Tex. App.–Corpus C hristi 2001, no pet.) (stating that i n construing a rule of procedu re, the words must be accorded their plain mean ing). Here, it is cl ear

that to avoid the modificat ions wrought by HB 4, Hutchins had to file her original petition before September 1, 2003. Again, this is so because the legislature restricted application o f the changes to s uits filed “on or after” the Act’s effectiv e date, the latter being September 1 st . Act of June 2, 2003, 78 th Leg., R.S., ch. 204, §23.02(d), 2003 Tex. Gen. Laws 8 99. If filed before that day, then the ol d law would control. Id. If not, then the new la w w ould. Id. Furthermore , the record i llustrates that she sent the instrument

to the Hockley

County Di strict Cl erk via first class , properly stamped mail and the mailing was deposited with the post office on Aug ust 29, 2003, or two days before September

1st. No one disputes that the item was properly addressed to the proper clerk
or that the postag e was sufficie nt. Nor does anyone quest ion that the dis trict cle rk received the document on Septe mber 2, 2003, a date well within the ten days prescribed b y Rule 5. Given thes e circumstanc es, we hol d that Hutchins complied w ith Rule 5 and, therefore, her suit was filed before the date by which i t had to be filed to avoid the modi fications of HB 4. The Hospital would have us hol d otherwi se for sever al reasons. Through the firs t, itposits that i nterpreting Rule 5 as w e do results in an amendment to the t erms of the house bill. In o ther wor ds, by apply ing Rule 5in the mann er we do, we h ave delayed6

implementation of the legislature’s decree that the Act take effect on Se ptember 1 st . The conclusion is wrong. Admittedly, the Texas Supr eme Court cannot i mplement a rule of procedure that conflictswith a statutory edict. T EX
. G OV ’ T C ODE A NN . §22.04 (c) ( Vernon 2004). Yet, the situation before us is much like that before the Sup reme Court in Warner

. There , questi on arose as to when a petition of an inmate was deemed f iled. The court held, through the ap plication of Rul e 5, that it w as filed when placed in the p rison ’s mail system. Warner v. Glass , 135 S.W.3d at 684. Prev iously t hereto, it had be en argued that such an applicatio n of

Rule 5 wou ld effect ivel y modi fy, and viol ate, th e terms of the Inmate Litigation Act. See T EX
. C IV
. P RAC
. & R EM
. C ODE A NN
. §14.04 (Vernon 200 2) (stating that the Act cannot be modi fied or repealed b y a rule adopt ed by the Supreme Court). This proposition was rej ecte d, ho weve r. The c ourt noted that while the Inmat e Litigation Act utilized the word “filing,” i t was “s ilent on w he n a claim [was] deemed filed.” Warner v. Glass, 135 S.W .2d at 684. Rule 5 merely filled the void; it did no t modify the Act

. Id. The
same is no less true here. While HB 4 speaks of a claim being filed by a certain day, it does not define when the c laim is deemed fil ed. So, like the situation i n Warner , we can turn to Rule 5 to determine that

. Next, the Hospital also suggests that Rule 5 contemplates theexistenceof a filing deadline, and HB 4 establ ishes no suc h deadl ine. I t is t rue th at some courts hav e held that
a filing deadl ine must be involved before R ule 5 can apply. See e.g. In re Hearn, No. 04- 03-00949-CV, slip. op., 20 04 Tex. App. L EXIS 3514 at 9 n.5 (Tex. App.–Sa n Antonio, April 21, 2004, no pet. h.) (holding t hat Rule 5 does not deem a motion filed on the date it was pla ced in the mail w hen no filing de adline is i nvolved) ; Smith v. Texas Dept. of Crim ina l7

Justice, 33 S.W.3d 338, 341 (Tex. App.–Tex arkana 2000, pet. d enied) (holdi ng that the mailbox rule does not enlarge the t ime in whi ch an inmate has tofile a wr itten order issued in a grievance proceeding when the statute did not contain a fil ing deadline). Y et, we can onlywonder how

a directive by

the legisla ture declari ng that if a sui t is filed on X date then
one set of la ws appl y, but i f filed on Y date , then another set applies is not a deadline. See Whitworth v. Blum enthal, 59 S.W.2d 393, 3 98 (Te x. App.–Dal las 2001, no pet.) (statin g that a filing deadline is “a date or time bef ore which something must be done”). This is especial ly true w hen the new l aw affects the cau se of action and the extent of one’s
reco very. See Act of June 2, 2003, 78 th Leg., R.S. , ch. 204, §10. 01, 2 003 Tex. Gen. Laws 873-75 (limiting the amount of non -economic damages that ca n be recovered). Undo ubte dly, pla inti ffs seeking thegreater relief afforde d by the old law had to act before
a specific date to obtain them. And, because they h ad to so act, the effective date of the statute created nothing short of a de adline. So, contrary to the Hospital’s sugg estion, the bill did impose “substantive li mitation[s]” upon the cause of action depending upon w hen the suit was filed. We also rejec

t the no tion that because Hutchins coul d have stil l pursued a negligence cause of action af ter September 1 st , though in a limited form, HB 4 could not be said to hav e imposed a filing deadline. Nothing i n Rule 5 say s that the party

invoking its terms must face the risk of losing his entire claim before it can apply. Indeed, the rule
can be us ed in man y situa tion s where in th e fa ilure to ac t by a certa in date has an eff ect short of vitiating a particular claim. For instance, Rule 5 would cert ainl y appl y to filin g a response to a partial summary judgment. Yet, failing to comp ly with the seven- day period, T EX
. R. C IV
. P. 166a (c ), doe s not necessarily mean that the non -movant risks losing his8

entire cla im i f the moti on i s gr ante d. Agai n, th e movant m ay h ave onl y s oug ht pa rti al r eli ef. Moreover, to read the limitation suggested by the Hospital in to Rule 5 would certainly contradict the Supreme Court’s policy to liberally construe the rules of civil procedure. See T EX
. R. C IV
. P. 1 (stating that the “objective of rules of civil procedure i s to obtain a j ust, fair, equitable and impartial adj udication of the r ight of liti gants . . . ,” and to achi eve this end, “the se rules shall be given a liberal construction”). And, that the Suprem e Court nonetheless applied Rule 5 to a situati on wherein the document was depo site d wi th an entity other than the United State s mail certainly evinces that Rule 5 falls within the court’s poli cy of cons truin g the r ules liber ally. In sum, the law in existence prior to th e ef fec tive date of HB 4 controlled Hutchin s’ duty viz the filing of expert reports. This is so because her suit was filed b efore that date. So, the trial court did not err in refusi ng to gra nt the Hospital ’s motion to di smiss. Accordi ngly, we over rule the iss ues posed by t he Hospital an d affirm the order of the trial court.

Brian Quinn Justice