Supreme Court of Texas

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No. 22-0291

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Texas State University,

Petitioner,

v.

Hannah R. Tanner,

Respondent

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On Petition for Review from the 

Court of Appeals for the Third District of Texas

═══════════════════════════════════════

Argued November 29, 2023

JUSTICE YOUNG delivered the opinion of the Court.

A plaintiff timely brings suit by filing an original petition and 

serving the defendant with process before the statute of limitations 

expires. Hannah Tanner satisfied the first requirement with only a week

to spare, but she did not serve Texas State University until several years 

after limitations had run. Under this Court’s precedent, however, late 

service of process can relate back to the date the petition was filed and 

thus be considered timely. This relation-back opportunity is available 

only if the plaintiff shows that she was diligent in attempting service 

from the time limitations expired until proper service was finally achieved.
2

The University contends that Tanner cannot establish her 

diligence in service and that her lawsuit against it is therefore barred 

by limitations. Defendants typically raise limitations as an affirmative 

defense that, if proven, will lead to a take-nothing judgment on the 

merits. The University, however, claims that Tanner’s suit should be 

dismissed for lack of jurisdiction before any merits proceedings even 

commence. Dismissal is the proper disposition, it says, because the 

University is a governmental entity, and in Texas, plaintiffs bear a 

jurisdictional duty to discharge all “[s]tatutory prerequisites to a suit” 

against governmental entities. See Tex. Gov’t Code § 311.034. The 

University argues that service of process is such a prerequisite and that 

Tanner did not satisfy it. 

We must therefore decide whether a plea to the jurisdiction is a 

proper vehicle for the University to challenge the timeliness of Tanner’s 

service. We conclude that it is. As this Court has held, § 311.034 requires

that a suit against a governmental entity be brought before the limitations

period expires. Timely service of process is part of timely bringing suit. 

Tanner’s diligence in attempting service during the years following the 

expiration of limitations would conclusively establish that her lawsuit 

was timely, which would defeat the University’s limitations objection. 

Because jurisdiction depends on bringing suit within limitations, and 

because the statute of limitations requires timely service, the University 

properly filed a plea to the jurisdiction. 

We decline, however, to determine whether the district court 

properly granted the plea. The court of appeals did not reach that 

question because it concluded that untimely service does not pose a 
3

jurisdictional issue that a plea to the jurisdiction can resolve. The 

University’s alternative motion for summary judgment relied on the same

arguments about timeliness, but the court of appeals held, for procedural

reasons, that the motion was not part of the appeal. Rather than resolve 

the timeliness of Tanner’s suit in the first instance, we reverse the court 

of appeals’ judgment and remand the case for that court to do so.

I

The relevant facts are largely undisputed, and we view them in 

the light most favorable to Tanner, the nonmovant. Tanner was injured 

on October 4, 2014, when she was thrown from a golf cart on the Texas 

State University campus. Dakota Scott, a friend of Tanner’s and a 

University employee, had been driving the golf cart within the scope of 

his employment. Invoking the Texas Tort Claims Act, Tanner sued the 

University, the Texas State University System, and Scott. She filed suit 

on September 29, 2016—less than a week before the two-year limitations

period for personal-injury actions was set to expire. See Tex. Civ. Prac. 

& Rem. Code § 16.003(a). 

Shortly thereafter—on October 4—Tanner served the System. 

Her petition expressly states that she did not request service on the 

University or Scott. Later that month, the System filed an answer and 

a plea to the jurisdiction. In late November, the System disclosed in its 

interrogatory responses to Tanner that it “is a separate entity and 

governmental unit from each of its component institutions” and that 

Scott had “never been employed by the Texas State University System.” 

Nearly two years later, on September 18, 2018, Tanner served Scott—

but she still did not serve the University. On December 3, 2018, the 
4

district court granted the System’s plea to the jurisdiction. Tanner did 

not appeal that ruling.

On May 20, 2020—five-and-a-half years after the injury and 

three-and-a-half years after limitations had run—Tanner finally served 

the University. The University answered and asserted the affirmative 

defense that Tanner’s claims were “barred by the two-year Statute of 

Limitations, pursuant to Section 16.003 of the Texas Civil Practice and 

Remedies Code.” On October 2, 2020, the University filed a plea to the 

jurisdiction and an alternative motion for summary judgment, alleging 

that Tanner failed to use diligence in effecting service on the University 

so long after limitations had expired. The University argued that 

Tanner’s untimely service meant that she had failed to satisfy a statutory

prerequisite to suit, which deprived the trial court of subject-matter 

jurisdiction under § 311.034 of the Government Code. In the alternative,

the University argued that Tanner’s “cause of action should be dismissed

in its entirety as a matter of law by summary judgment as [the 

University’s] defense of limitations has been conclusively established.” 

Tanner responded that the plea should be denied. She argued first

that service comes after filing suit and thus is not jurisdictional. She then

contended that the suit against Scott was in substance a suit against the 

University; she reasoned that if the suit against Scott was timely (and for

purposes of this appeal, we assume that it was), then limitations could 

not bar the suit against the University. Next, she argued that Scott and 

the University were represented by the same counsel, so the failure to 

serve the University caused no prejudice, or at least that the common 

representation presents a fact issue about her diligence. Finally, she 
5

claimed that the University’s delay in substituting itself for Scott under 

§ 101.106(f) of the Tort Claims Act would deny Tanner her right to a 

trial if the suit against the University can be dismissed. The trial court 

granted the University’s plea to the jurisdiction without ruling on the 

summary-judgment motion. Because of several severance orders, this 

case comes to us with the University as the only defendant in this suit.

The Third Court of Appeals reversed. 644 S.W.3d 747 (Tex. App.—

Austin 2022). It principally relied on this Court’s decision in Prairie View

A&M University v. Chatha, 381 S.W.3d 500 (Tex. 2012), which explains 

how to determine whether a requirement counts as a “[s]tatutory 

prerequisite[] to a suit” under § 311.034. As the court of appeals put it, 

Chatha directs courts to conduct this inquiry “by using a three-prong 

test,” which the court recounted as follows: 

First, “to fall within the ambit of section 311.034, a 

prerequisite must be found in the relevant statutory 

language.” “Second, the prerequisite must be a 

requirement.” Third, “the term ‘pre’ indicates the 

requirement must be met before the lawsuit is filed.”

644 S.W.3d at 751 (citations omitted) (quoting Chatha, 381 S.W.3d at 512).

According to the court of appeals, the “diligent-service requirement” 

fails all three “prongs.” It found “the first two prongs of the Chatha test” 

unsatisfied because the diligence requirement “‘is not found in the 

relevant statutory language’ of section 16.003(a) and it is not a 

‘requirement’ of that statute.” Id. at 752 (quoting Chatha, 381 S.W.3d 

at 512). Indeed, the court of appeals observed, “the text of the personalinjury statute of limitations in section 16.003(a) neither references nor 

requires diligent service,” which the court found unsurprising given that 

any role for diligence is “a creation of the judiciary.” Id. Nor can the third
6

prong be satisfied, the court held, because a “prerequisite . . . is to be 

complied with prior to filing suit.” Id. (emphasis added) (quoting Chatha,

381 S.W.3d at 514–15). Diligence in service necessarily measures 

actions that follow rather than precede filing, so the court concluded that 

diligence could not be a statutory “prerequisite” to suit. Id. 

The court of appeals therefore held that untimely service does not 

implicate jurisdiction under § 311.034, which in turn means that 

governmental entities cannot challenge untimely service through a plea 

to the jurisdiction. Id. at 752–53. The court therefore reversed the 

district court’s judgment. It did not address whether Tanner’s service 

was untimely under the University’s alternative motion for summary 

judgment. That motion, the court concluded, had yet to be ruled on by 

the district court and thus was not part of the appeal. Id. at 753 n.2.

The University filed a petition for review, which we granted.

II

We disagree with the court of appeals’ conclusion. 

A

First, the court analyzed the wrong question. There is no 

freestanding “diligent-service requirement”—there is only a requirement

of timely service. Diligence in attempting service prevents the running 

of limitations for as long as a plaintiff truly labors to achieve service of 

process. “If service is diligently effected after limitations has expired, the

date of service will relate back to the date of filing.” Proulx v. Wells, 235 

S.W.3d 213, 215 (Tex. 2007); accord Ashley v. Hawkins, 293 S.W.3d 175, 

179 (Tex. 2009). Diligence for its own sake, in other words, is immaterial. 

Rather, exercising diligence is merely a means to the end of establishing 
7

timely service, the absence of which can doom a plaintiff’s claim.

As the court of appeals correctly noted, the diligence gloss on the 

service requirement came from the judiciary. Timely filing a lawsuit is 

often far easier than timely effecting service. Tracking down and serving

individuals sometimes can seem almost impossible. People can hide, be 

absent, or just be hard to find. Likewise, effecting service requires steps 

that are not within a plaintiff’s control, such as obtaining citation that is

issued by a clerk’s office. It would be unduly harsh and create perverse 

incentives to deem a lawsuit untimely if a plaintiff does everything she 

can to properly serve a defendant when, purposefully or otherwise, the 

defendant or third parties make that service extremely difficult. 

The common law thus developed a sensible balance, not to 

undermine but to effectuate the service requirement. Treating untimely 

service as timely so long as the plaintiff exercises genuine diligence 

avoids improper outcomes. It benefits only plaintiffs who are truly 

diligent once limitations expires. It offers nothing for a plaintiff who is 

dilatory. And while defendants have no duty to make service easy, the 

diligence rule avoids rewarding efforts to make service hard. This use of

diligence as a proxy for timeliness has proven sound and become engrafted

into the law of service because it delays limitations when it ought to (when

service is unusually hard, despite earnest efforts) and will not do so when

it ought not to (when timely service would have been simple or is pursued

with indolence).

After all, diligence means truly trying to achieve service—as if one 

wanted to do it, not merely had to do it. This principle is familiar in the 

law. Cf. Mitchell v. MAP Res., Inc., 649 S.W.3d 180, 189 (Tex. 2022) (“The
8

means employed [to provide notice when required to satisfy due process] 

must be such as one desirous of actually informing the absentee might 

reasonably adopt to accomplish it.” (quoting Mullane v. Cent. Hanover 

Bank & Tr. Co., 339 U.S. 306, 315 (1950))). “In assessing diligence,” we 

have explained, “the relevant inquiry is whether the plaintiff acted as 

an ordinarily prudent person would have acted under the same or 

similar circumstances and was diligent up until the time the defendant 

was served.” Proulx, 235 S.W.3d at 216. This necessarily fact-intensive 

inquiry is “determined by examining the time it took to secure citation, 

service, or both, and the type of effort or lack of effort the plaintiff 

expended in procuring service.” Id. That some time has elapsed between

service efforts does not alone prove a lack of diligence. But any delay in 

service after limitations has run requires an explanation—and not a 

conclusory or cursory one, either. “[T]he plaintiff’s explanation of its 

service efforts,” therefore, “may demonstrate a lack of due diligence as a 

matter of law, as when one or more lapses between service efforts are 

unexplained or patently unreasonable.” Id. (citing Gant v. DeLeon, 786 

S.W.2d 259, 260 (Tex. 1990)). 

The diligence exception is thus available to any plaintiff who sues 

any defendant, but its practical value will vary greatly. It is common 

sense, for example, that a delay is more likely to occur and be excused 

when a plaintiff must serve a peripatetic or concealed defendant. Despite

that plaintiff’s diligence, it may take an extended time to comply with the

formalities of service or, if unavoidable, to obtain a substitute method of 

service. Said differently, the easier it is to achieve service, the harder it 

will be for a plaintiff to establish diligence during a substantial (or even 
9

minor) delay. 

Central to this entire discussion is that it is always service that 

matters. Diligence has no separate role other than to inform the 

assessment of service. The court of appeals started on the wrong path 

by treating diligence as a distinct “requirement.” 

B

Second, despite the court of appeals’ mistaken focus on diligence 

as a “requirement,” we would still affirm its judgment if we agreed that 

service of process is not a “prerequisite.” Service comes after filing and 

alerts the defendant to what has been filed; one could hardly expect it to 

be done before filing. But as we explained at the outset, a plaintiff must do

more than file within two years to comply with the statute of limitations. 

“Bring suit,” not “file suit,” is the relevant statutory term: 

[A] person must bring suit for trespass for injury to the 

estate or to the property of another, conversion of personal 

property, taking or detaining the personal property of 

another, personal injury, forcible entry and detainer, and 

forcible detainer not later than two years after the day the 

cause of action accrues.

Tex. Civ. Prac. & Rem. Code § 16.003(a) (emphasis added). 

As the court of appeals noted, Chatha’s “third prong” included the 

phrase “before the lawsuit is filed.” 644 S.W.3d at 751–52 (emphasis 

added) (quoting and applying Chatha, 381 S.W.3d at 512). That phrase

was not inaccurate, but it was incomplete; an event that occurs before 

filing also occurs before service, of course, and thus before suit is 

“brought.” The requirement at issue in Chatha (filing an administrative 

complaint within 180 days of an allegedly unlawful employment practice)

preceded both, so nothing turned on any distinction between “bringing” 
10

and “filing.” 381 S.W.3d at 503. This case, by contrast, implicates that 

distinction, and so we clarify that the statute’s use of “bring suit” is the 

touchstone of our analysis. Chatha did not purport to replace the 

statutory text or supplant the existing distinction between “bringing” 

and “filing.” 

We explained that distinction, for example, in Proulx—another 

case arising in the context of § 16.003—as follows: 

A suit for personal injuries must be brought within two 

years from the time the cause of action accrues. But a timely

filed suit will not interrupt the running of limitations unless

the plaintiff exercises due diligence in the issuance and 

service of citation. 

235 S.W.3d at 215 (emphasis added) (citation omitted). In other words, 

to “bring suit” is a term of art reflecting the traditional requirements to 

satisfy a statute of limitations: filing the petition and achieving service 

of process. Timeliness for just one will not do. Thus, while service 

follows filing, both are prerequisites to “bringing” the suit. The suit is 

not “brought,” and the statute of limitations is not satisfied, until the 

plaintiff achieves both steps.

C

Even though service is a “prerequisite” to bringing suit, the court 

of appeals’ judgment would still be correct if service is not the kind of 

prerequisite that falls within § 311.034’s scope. As the statute states, 

as Chatha confirms, and as the court of appeals correctly held, § 311.034 

applies only to “[s]tatutory prerequisites to a suit.” Prerequisites not 

mandated by a statute are not jurisdictional (at least, not under 

§ 311.034). We cannot agree, however, that service falls outside that 

category. 
11

This Court has at least twice observed that statutes of limitations 

impose a jurisdictional requirement for suits against governmental 

entities. In Chatha, we said that when a statutory prerequisite to suit is

not met, “whether administrative (such as filing a charge of discrimination) 

or procedural (such as timely filing a lawsuit),” the suit may be properly 

dismissed for lack of jurisdiction. 381 S.W.3d at 515. True, as we noted 

above, “timely filing a lawsuit” (or “bringing” one) was not at issue in 

Chatha. But even if the phrase in Chatha were dicta, our holding in City 

of Madisonville v. Sims, 620 S.W.3d 375 (Tex. 2020), confirms its accuracy. 

The plaintiff there had filed a Whistleblower Act claim against the City 

of Madisonville and its police department. Id. at 377. The City filed a 

plea to the jurisdiction claiming that the suit, filed after the Act’s ninetyday deadline, was barred by limitations. Id. at 378. The trial court 

granted the plea, but the court of appeals reversed and held that the filing

deadline was not jurisdictional. Id. We reversed and dismissed the case 

for lack of jurisdiction, holding that the deadline was jurisdictional under

§ 311.034. Id. at 380. Citing Chatha, we concluded that the plaintiff’s 

failure to timely file his lawsuit constituted failure to satisfy a statutory 

prerequisite to suit and that, because the City was a governmental entity,

it was entitled to dismissal for lack of jurisdiction under § 311.034. Id. 

Timely service, as we have explained, is no less mandated by the statute 

of limitations than timely filing.

Tanner seeks to evade City of Madisonville (and that case’s 

embrace of Chatha) by making a novel argument: that the only statute 

that counts for § 311.034’s purposes is the very statute that waives 

immunity. The Whistleblower Act both waived immunity and imposed 
12

the ninety-day deadline, she notes, whereas here, the Tort Claims Act 

waives immunity, and a separate section of the Civil Practice and 

Remedies Code imposes the two-year limitations period. City of 

Madisonville, she says, is therefore distinguishable.

The court of appeals did not embrace Tanner’s novel contention. 

We disagree with that court’s conclusion that § 16.003 did not create 

statutory prerequisites to a Tort Claims Act suit, but we agree with the 

premise of its analysis, which was that § 16.003 could do so. We reject 

Tanner’s argument that would confine § 311.034’s scope to statutory 

prerequisites that are codified in the same statute as the principal waiver

of immunity. 

Section 311.034’s text contains no such restriction, and neither 

Chatha nor City of Madisonville turned on where the legislature chose to

codify a given statutory requirement. Without limitation, § 311.034 

provides that “[s]tatutory prerequisites to a suit, including the provision 

of notice, are jurisdictional requirements in all suits against a

governmental entity.” In Chatha, we noted that “it is of obvious mention 

that in order to fall within the ambit of section 311.034, a prerequisite 

must be found in the relevant statutory language.” 381 S.W.3d at 511–12. 

“Relevant statutory language” means the text of a statute—any statute—

that dictates a pre-suit requirement that applies to a given case. We find

no ambiguity in § 311.034’s text, but even if we did, “we generally resolve

ambiguities by retaining immunity.” Wichita Falls State Hosp. v. Taylor,

106 S.W.3d 692, 697 (Tex. 2003).

Multiple statutes or statutory provisions, after all, may operate in

tandem to determine the scope of the waiver of immunity, which in turn 
13

will determine whether courts have jurisdiction over a claim against a 

governmental entity. See, e.g., Rattray v. City of Brownsville, 662 S.W.3d

860, 865–66 (Tex. 2023) (examining the Tort Claims Act’s waiver of 

immunity in connection with several subsections that withdraw that 

waiver); Gulf Coast Ctr. v. Curry, 658 S.W.3d 281, 287 (Tex. 2022) 

(“[I]ncorporating [an]other statute’s additional limitations of liability 

‘modifies a governmental unit’s waiver of immunity from suit.’” (quoting 

Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 225 (Tex. 

2004))). The whole point of § 311.034 is to require courts to treat any 

statutory prerequisite to suit—whether in the statute that directly 

waives immunity or in any other statute—as jurisdictional. As always, 

plaintiffs cannot invoke the judicial power unless they comply with every

jurisdictional requirement. 

Tanner’s fallback argument is that “[w]hile technically a statute, 

the statute of limitations has never been viewed as jurisdictional and has

always been treated as an affirmative defense to a common law claim.”1 

That statement is correct as far as it goes. In ordinary litigation, the 

statute of limitations does not implicate jurisdiction. That principle also 

1 Tanner argues that courts should not treat statutory requirements 

applicable to common-law claims against the government (like statutes of 

limitations) as “statutory prerequisites,” in contrast with the same requirements

for claims created by a statute. We see no material distinction. No claim against

a governmental entity can be authorized only by the common law because, “to 

waive immunity, consent to suit must ordinarily be found in a constitutional 

provision or legislative enactment.” Wichita Falls State Hosp. v. Taylor, 106 

S.W.3d 692, 695 (Tex. 2003). Immunity is not waived at all without such an 

enactment. Thus, even for her personal-injury claim based on common-law 

concepts and reliant on common-law doctrines, it is by force of statute, not the 

common law alone, that she may bring suit against the government. See id. at 

696.
14

applied to litigation involving the government—until the enactment of 

§ 311.034. That provision is what transforms any ordinary statute of 

limitations into a jurisdictional bar, whether codified directly in the Tort 

Claims Act or elsewhere. Statutes of limitations are always far more 

than “technically a statute”—they are the statutes delineating the time 

within which any plaintiff’s claim may be pressed, and they now bear 

jurisdictional force in suits against governmental entities. 

* * *

We accordingly hold that the statute of limitations, including the 

requirement of timely service, is jurisdictional in suits against 

governmental entities. The University’s plea to the jurisdiction was 

therefore a proper vehicle to address Tanner’s alleged failure to exercise 

diligence in serving the University. 

III

Having established that the University’s plea to the jurisdiction 

properly raised the issue of limitations, we turn to whether the University

established its entitlement to dismissal as a matter of law. 

Tanner argues that the University has failed to meet its burden to

conclusively prove that she did not satisfy the statute of limitations. This

contention misplaces the burden. The University has shown that Tanner

did not provide service for 43 months after limitations expired, so the 

burden has shifted to Tanner to establish timely service in some other 

way, such as by proving her diligence. See Proulx, 235 S.W.3d at 216. 

Diligence requires that she show that she “acted as an ordinarily prudent

person would have acted under the same or similar circumstances and 

was diligent up until the time the defendant was served.” Id. 
15

Diligence normally raises a fact question, but a plaintiff’s 

explanation may show a lack of diligence as a matter of law “when one or

more lapses between service efforts are unexplained or patently 

unreasonable.” Id. To avoid dismissal (or, in a non-jurisdictional context,

a take-nothing judgment), a plaintiff must “present evidence regarding 

the efforts that were made to serve the defendant, and to explain every

lapse in effort or period of delay.” Id. (emphasis added).

Tanner, however, has identified no disputed fact issue related to 

her exercise of diligence or anything else in connection with service—that

is to say, she has identified no factual question that would be fit for 

presentation to a jury. Tanner’s briefing, instead, makes three arguments

to explain her delay, but each is susceptible only to legal analysis. Tanner

cannot establish her diligence in service under any of these arguments, 

but the first of them nonetheless warrants remand to the court of appeals

for resolution of a potentially dispositive legal question. We address her 

contentions in turn.

A

Tanner first claims that service on Scott effectively was service on 

the University because of Scott’s motion to substitute the University 

under § 101.106(f) of the Tort Claims Act.2 Tanner invokes University of

Texas Health Science Center at San Antonio v. Bailey, 332 S.W.3d 395 

(Tex. 2011). That case involved the substitution of a governmental unit 

after limitations had run when, unlike in this case, the Baileys did not 

know that the individual defendant that they had sued, Sanders, was a 

2 The additional potentially dispositive issue of whether service on Scott 

was timely is not before us.
16

government employee. Id. at 401. Sanders waited until seven weeks 

after limitations had passed and then announced that his employer 

(another state university) should have been the defendant the whole 

time. Id. at 397. The employer then invoked limitations. Id. at 399.

Tanner contends that Bailey resolves the case for her because we 

held that the suit was not barred in that case. Under the Act, the Baileys’

suit had been a suit against the employer all along. That is, “the Baileys’ 

suit against Sanders was, in all respects other than name, a suit against 

the [state university].” Id. at 401–02 (emphasis added). We therefore 

held that the statute of limitations could not be a defense to the plaintiff’s

claims against the substituted employer. Id. We decline to resolve in the

first instance whether or how the principles of Bailey affect this case. 

Unlike in Bailey, for example, Tanner named the University from the 

beginning and so had no need to later name a correct party, as 

§ 101.106(f) provides and as the Baileys did. Tanner could have served 

every defendant at the time of filing but, purportedly for strategic 

reasons, chose not to do so. 

Tanner’s contention that, aside from any such distinctions, her 

service on Scott satisfies her obligation to serve the University presents 

a question of law. If she is correct that § 101.106 excuses her from 

separately serving the University, then her diligence in serving Scott, not

the University, is the relevant inquiry. The parties in this Court, 

understandably enough, have paid far less attention to these details than

to the issues that have been our focus in Part II of this opinion. We 

therefore decline to address this ground in the first instance.
17

B

Tanner next, and relatedly, claims that “[t]here was no delay in 

serving [the University] because [the University] had actual notice of 

Tanner’s claim when the incident happened on October 4, 2014 and at 

least by the time Scott was timely served” in September 2018. This 

argument, while similar to her first, is mistaken. It confuses service with 

the Tort Claims Act’s distinct notice requirement. See Tex. Civ. Prac. & 

Rem. Code § 101.101. Tanner asserts that “[i]f actual notice can satisfy a

statutory prerequisite for ‘notice’, then surely it also satisfies a statutory 

prerequisite for diligent service.” The contrary is true. Notice is a 

separate issue from whether service of process was performed at all, much

less whether service was timely. Plaintiffs must separately satisfy both.

For example, in Worsdale v. City of Killeen, which Tanner cites, 

we held that “the undisputed evidence here conclusively establishes the 

governmental unit had actual notice it may be responsible for the deaths 

of two motorists whose vehicle struck an unbarricaded dirt mound 

completely blocking an unlit country road.” 578 S.W.3d 57, 59 (Tex. 

2019). Indeed—it was enough to satisfy § 101.101’s notice requirement. 

But actual notice does not fulfill the service requirement. Receiving

a petition through means other than formal service, we have held, is an 

insufficient substitute for service. “Absent service, waiver, or citation, 

mere knowledge of a pending suit does not place any duty on a defendant 

to act.” Wilson v. Dunn, 800 S.W.2d 833, 837 (Tex. 1990) (emphasis 

added). In Wilson, we expressly distinguished between receipt and proper

service. Id. If Tanner can establish that her service on Scott constituted 

service on the University (which is Tanner’s first ground), then she does 
18

not need to conflate notice and service (her second ground). But if her 

service on Scott does not amount to serving the University, any notice to

the University is insufficient as a matter of law to satisfy her duty to 

timely effect service.

C

Tanner finally claims that the University is at fault for not moving 

to dismiss Scott earlier pursuant to § 101.106, and that this delay excuses

her own delay. This theory provides no basis to treat Tanner’s late service

as timely. By Tanner’s own choice, the University had not even been 

served at this point, which meant that the University had no duty to act 

at all. Wilson, 800 S.W.2d at 837. The only way the University would 

have had such a duty was if the service on Scott constituted actual service

on the University—which, again, is Tanner’s first argument. Like her 

second theory, in other words, this one collapses into her first. 

Tanner’s argument that the same attorney represented Scott and 

the University is similarly unavailing. Common representation alone 

does not impose any duty on an unserved party. And even if this excuse 

were creditable, it could not explain the approximately two-year delay 

between serving Scott (2018) and serving the University (2020). Scott 

answered Tanner’s suit in October 2018 and informed her that the 

University was his employer at the time of the accident. This excuse does

not show diligence in service but indeed establishes the opposite.

* * *

We therefore hold that Tanner has not established, and cannot 

establish, diligence in service on the University. But as we stated in 

Part II.A, diligence is not an independent requirement—it is only a 
19

means to establish timely service. Tanner’s first ground to defend 

timeliness does not rely on diligence in serving the University. Rather, 

it presents an alternative legal basis to deem satisfied any obligation to 

serve the University at all. That theory is underdeveloped in this Court. 

We leave it to the court of appeals, following supplemental briefing from 

the parties if that court deems it necessary, to determine in the first 

instance if Tanner’s service on Scott excuses her from the duty to serve 

the University, diligently or otherwise. The court of appeals’ judgment 

is reversed, and the case is remanded to that court.

Evan A. Young

Justice

OPINION DELIVERED: May 3, 2024