NUMBER 13-20-00092-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG 

 

EDUARDO BARRIENTOS, Appellant,

v.

JACOBS ENGINEERING GROUP, INC., Appellee.

 

On appeal from the 444th District Court 

of Cameron County, Texas.

 

MEMORANDUM OPINION

Before Justices Longoria, Hinojosa, and Tijerina

Memorandum Opinion by Justice Hinojosa

Appellant Eduardo Barrientos appeals the trial court’s dismissal of his claim 

against appellee, Jacobs Engineering Group, Inc. (Jacobs), for failing to file a certificate 

of merit compliant with Texas Civil Practices & Remedies Code § 150.002. See TEX. CIV.

PRAC. & REM. CODE ANN. § 150.002(a)–(b). We affirm.
2

I. BACKGROUND1

On March 4, 2019, Barrientos filed a personal injury lawsuit against Jacobs and 

CVS Pharmacy, Inc. d/b/a CVS Pharmacy #08962 (CVS). In his Original Petition, 

Barrientos alleged that he was riding his bicycle in Harlingen, Texas, when he attempted 

to turn into a CVS Pharmacy located on the corner of Sunshine Strip and Ed Carey Drive. 

Barrientos contends that, suddenly and without warning, the front tire of his bicycle hit a 

raised concrete lip when entering the CVS parking lot, causing him to flip over. As a result 

of this accident, Barrientos sustained a broken wrist and elbow, as well as a calf injury.

Along with his petition, Barrientos filed a certificate of merit affidavit by a licensed 

engineer, John J. Smith, P.E., as required by the Texas Civil Practices and Remedies 

Code § 150.002. See id. Smith’s affidavit opined that Jacobs was negligent in multiple 

ways regarding the design, creation, and marking of the CVS parking lot. Of note, Smith’s 

affidavit indicated that he was an engineer licensed in Colorado, not Texas. See id. 

§ 150.002(b). Although Barrientos’s lawsuit was filed within ten days of expiration of the 

statute of limitations, Barrientos did not allege that time constraints prevented him from 

filing a statutorily compliant certificate of merit from a Texas engineer. See id. 

§ 150.002(c).

On April 8, 2019, Jacobs filed a general denial. On April 22, 2019, Jacobs filed a 

motion to dismiss on the basis that Barrientos failed to provide a valid certificate of merit 

1 We previously dismissed this case for want of prosecution when Barrientos failed to pay his

appellate filing fee. See Barrientos v. Jacobs Eng’g Group, Inc., No. 13-20-00092-CV, 2020 WL 2079174 

(Tex. App.—Corpus Christi–Edinburg Apr. 30, 2020, no pet.) (mem. op.); see also TEX. R. APP. P. 42.3(c).

Barrientos filed a motion to reinstate the appeal on May 7, 2020 and paid his filing fee. We granted the 

motion to reinstate in the interest of justice on June 10, 2020. 
3

from a Texas engineer. See id. § 150.002(b). In response, Barrientos filed a motion for 

leave to amend the certificate on May 24, 2019. In his motion, he relied on § 150.002(c), 

which provides as follows:

The contemporaneous filing requirement of Subsection (a) shall not apply 

to any case in which the period of limitation will expire within 10 days of the 

date of filing and, because of such time constraints, the plaintiff has alleged 

that an affidavit of a third-party licensed architect, licensed professional 

engineer, registered landscape architect, or registered professional land 

surveyor could not be prepared. In such cases, the plaintiff shall have 30 

days after the filing of the complaint to supplement the pleadings with the 

affidavit. The trial court may, on motion, after hearing and for good cause, 

extend such time as it shall determine justice requires.

Id. Barrientos argued that his petition was filed within ten days of the statute of limitations. 

In a supporting affidavit, Barrientos further argued that “good cause” existed because his 

attorney was “busy on another case,” and the attorney’s office “mistakenly overlooked the 

Texas certification req[uirement] of the engineer.” That same day, Barrientos filed a First 

Amended Petition that included a certificate of merit from Texas engineer Raul E. Garcia, 

P.E., R.P.L.S. 

On June 25, 2019, the trial court granted Jacobs’s motion to dismiss. Barrientos 

appeals.

II. APPLICABLE LAW & STANDARD OF REVIEW

Texas law requires that persons who bring suit against design professionals must 

obtain and file a certificate of merit:

(a) In any action . . . for damages arising out of the provision of 

professional services by a licensed or registered professional, the 

plaintiff shall be required to file with the complaint an affidavit of a 

third-party licensed architect, licensed professional engineer, 

registered landscape architect, or registered professional land 

surveyor who:
4

(1) is competent to testify;

(2) holds the same professional license or registration as the 

defendant; and

(3) is knowledgeable in the area of practice of the defendant and 

offers testimony based on the person’s:

(A) knowledge;

(B) skill;

(C) experience;

(D) education;

(E) training; and

(F) practice.

(b) The affidavit shall set forth specifically for each theory of recovery for 

which damages are sought, the negligence, if any, or other action, 

error, or omission of the licensed or registered professional in 

providing the professional service, including any error or omission in 

providing advice, judgment, opinion, or a similar professional skill 

claimed to exist and the factual basis for each such claim. The thirdparty licensed architect, licensed professional engineer, registered 

landscape architect, or registered professional land surveyor shall be 

licensed or registered in this state and actively engaged in the 

practice of architecture, engineering, or surveying.

TEX. CIV. PRAC. & REM. CODE ANN. § 150.002(a), (b).

An appellate court reviews a trial court’s ruling on a motion to dismiss under 

§ 150.002 of the civil practice and remedies code for an abuse of discretion. See Miramar 

Petroleum, Inc. v. Cimarron Eng’g, LLC, 484 S.W.3d 214, 217 (Tex. App.—Corpus 

Christi–Edinburg 2016, pet. denied). 

III. ANALYSIS

In his sole issue, Barrientos contends the trial court abused its discretion when it 

dismissed his claim against Jacobs for failure to file a compliant certificate of merit without 
5

affording him a thirty-day extension to amending the certificate of merit.

2

The statutory language of § 150.002 clearly sets forth that the third-party expert 

“shall be licensed or registered in this state . . . .” See TEX. CIV. PRAC. & REM. CODE ANN. 

§ 150.002(b). Barrientos does not dispute that his initial certificate of merit failed to comply 

with § 150.002(b). Id. In fact, Barrientos concedes in his briefing that the initial affidavit 

he provided was written by Smith, an expert licensed in Colorado and not Texas. See id. 

Accordingly, Barrientos’s original certificate of merit was deficient.

We have found no case law, and Barrientos does not direct us to any, that allows 

a party an extension of time to correct a “deficient” expert report. See Crosstex Energy 

Servs., L.P. v. Pro Plus, Inc., 430 S.W.3d 384, 391 (Tex. 2014). We have only found case 

authority which provides that, if a plaintiff files his original petition within ten days of the 

statute of limitation and has filed no certificate of merit, they may have a thirty-day 

extension to file the certificate if they demonstrate good cause to the trial court. Id.

Assuming without deciding that Smith’s certificate was so deficient that it constituted “no 

certificate,” we disagree with Barrientos that the trial court abused its discretion in granting 

Jacobs’s motion to dismiss. In Crosstex Energy Services, L.P. v. Pro Plus, Inc., the Texas 

Supreme Court concluded the following: 

We hold that the “good cause” exception in subsection (c) does not stand 

alone, but rather is contingent upon a plaintiff: (1) filing within ten days of the 

expiration of the limitations period; and (2) alleging that such time constraints 

prevented the preparation of an affidavit. A plaintiff satisfying these 

2 In a footnote in his brief, Barrientos also proclaims, “An open question exists whether such statute 

is constitutional. In no other circumstance is a plaintiff required to present an affidavit of merit upon filing 

his petition. No justification (except for political muscle) justifies such special treatment, and accordingly, 

such statute violates the equal protection provisions of both the United States and Texas Constitutions.” 

Because this comment is in a footnote and not adequately briefed with citations to the record or proper 

case authority, we decline to address this issue. See TEX. R. APP. P. 38.1(i).
6

requirements “shall” receive an extension of thirty days; upon motion, a trial 

court may, for good cause, extend this thirty-day period as justice requires. 

A plaintiff who files suit outside the ten-day window . . . cannot claim 

protection of the good cause exception.

430 S.W.3d at 391.

Barrientos meets Crosstex’s first requirement to establish good cause: he filed his 

original petition within ten days of the expiration of the limitations period. See id. The 

original incident at issue occurred “on or about March 4, 2017,” and Barrientos filed his 

petition on March 4, 2019. See TEX. CIV. PRAC. & REM. CODE ANN. § 16.003 (noting that a 

person must bring suit for personal injury “not later than two years after the day the cause 

of action accrues.”). 

Barrientos does not, however, meet the second requirement under Crosstex: he 

fails to allege anywhere in his original petition that filing so close to the limitations deadline 

constrained the preparation of a statutorily compliant affidavit. See Crosstex, 430 S.W.3d 

at 391; Tex. Southern Univ. v. Kirksey Architects, Inc., 577 S.W.3d 570, 576 (Tex. App.—

Houston [14th] 2019, no pet.) (holding that a plaintiff was not entitled to a thirty-day 

extension when it did not allege in its petition that its filing near the statute of limitations 

prevented the preparation of a certificate of merit); SSOE, Inc. v. Tokio Marina Am. Ins. 

Co., 567 S.W.3d 809, 813 (Tex. App.—San Antonio 2018, no pet.) (same); Barron, Stark 

& Swift Consulting Eng’rs, LP v. First Baptist Church, 551 S.W.3d 320, 323–24 (Tex. 

App.—Beaumont 2018, no pet.) (same). Barrientos, in fact, did not address the 

insufficiency of his certificate—that his affidavit was written by someone not licensed in 

Texas—until after Jacobs pointed it out in its motion to dismiss on April 22, 2019. It was 

not until May 24, 2019, eighty-one days after he filed his original petition and well outside 
7

the thirty-day extension period to provide a certificate assuming good cause, that 

Barrientos finally filed a statutorily compliant certificate. 

In light of the foregoing, we cannot say the trial court abused its discretion in 

granting the motion to dismiss because there was no “good cause” to grant the extension. 

See Miramar Petroleum, Inc., 484 S.W.3d at 217. We overrule Barrientos’s sole issue.

IV. CONCLUSION

We affirm the trial court’s judgment.

LETICIA HINOJOSA

Justice

Delivered and filed on the

5th day of August, 2021.