due diligence requirement in Texas

2008This due diligence requirement is distinct from the three elements of the bill of review and is a prerequisite to bringing a bill of review. (footnote: 3) Caldwell v. Barnes , 975 S.W.2d 535 , 537–38 (Tex. 1998); Davis v. Smith , 227 S.W.3d 299, 302 (Tex. App.—Houston [1st Dist.] 2007, no pet.).

2008This due diligence requirement is distinct from the three elements of the bill of 4 review and is a prerequisite to bringing a bill of review. 3 Caldwell v. Barnes, 975 S.W.2d 535 , 537–38 (Tex. 1998); Davis v. Smith, 227 S.W.3d 299, 302 (Tex. App.—Houston [1st Dist.] 2007, no pet.).

2024Dist. v. Parra, No. 01-22-00596-CV, 2023 WL 4003303 , at *8 (Tex. App.— 19 The Texas Supreme Court granted Stockton’s petition for review, and it considered only three issues: whether the appropriate standard of review was abuse of discretion or de novo, whether a due diligence exception applied to toll the running of the 120-day deadline to file an expert report under the Act, and whether the Act’s 120-day deadline violated the Texas Constitution’s open courts provision. 336 S.W.3d at 614 .

2016Hebner and Scott also point to Stockton v. Offenbach, 336 S.W.3d 610, 616 (Tex. 2011) to support their arguments, but the Court did not determine in Stockton that the due diligence exception, applies to serving expert reports under the Act.

2012See Peacock, 77 S.W.3d at 289 (noting that “the due diligence defense has no statutory basis,” but is deeply rooted in common law); House Research Organization, Bill Analysis, Tex. H.B. 1634, 78th Leg., R.S.

2012See Peacock, 77 S.W.3d at 289 (noting that “the due diligence defense has no statutory basis,” but is deeply rooted in common law); H OUSE R ESEARCH O RGANIZATION, B ILL A NALYSIS, Tex. H.B. 1634, 78th Leg., R.S.

2023See Garcia, 387 S.W.3d at 25 (“The application of the due diligence defense is limited to “those instances in which the State has timely alleged violations but has not arrested the defendant before the community supervision period has expired.”); see also Tex. Code Crim.

2014As a result, the due-diligence defense now “applies to only two revocation allegations: failure to report to an officer as directed, and failure to remain within a specified place.” Garcia, 387 S.W.3d at 23–24 (citing TEX.

2012Hutson v. Tri-County Props., LLC, 240 S.W.3d 484, 491 (Tex. App.––Fort Worth 2007, pet. denied).

2012Hutson v. Tri-County Props., LLC , 240 S.W.3d 484, 491 (Tex. App.––Fort Worth 2007, pet. denied).

2013Moulton, 360 S.W.3d at 554 . . 493 S.W.2d 940 (Tex.Crim.App.1973) (requiring the State to prove the elements contained as alleged in the indictment). . 860 S.W.2d 419 , 424 (Tex.Crim.App.1993) (requiring the State to prove that the grand jury exercised due diligence, but was unable to decipher the means of committing the offense). . 4 S.W.3d 228 (Tex.Crim.App.1999) (overruling Hicks and holding that the due-diligence requirement was met when a member of the grand jury testified that the jury was unable to determine the manner and means). .

2000In Rosales v. State, 4 S.W.3d 228, 230-31 (Tex.Crim.App.1999), appellant alleged legally insufficient evidence where the indictment charged appellant with killing the victim by stabbing her with a knife and striking her with a hard object "the exact nature of which is unknown to the grand jury.” In the majority opinion, the court held that: 1) the prosecution satisfied the due diligence requirement when it proved through one of the grand juror’s testimony that the grand jury was unable to find out what caused the various injuries to the victim; 2) the jury was charged in the disjunctive (i.e.,

2015(Resp. at 17-18) (citing Tenet Hospital Ltd. v. Rivera, 445 S.W.3d 698, 704-05 (Tex. 2014); Shah v. Moss, 67 S.W.3d 836 (Tex. 2001); Yancy v. United Surgical Partners Int’l, Inc., 236 S.W.3d 778 (Tex. 2007)).

2015Specifically, the Court noted that it had previously ruled that delays of four months 18 (Stockton), seventeen months (Shah v. Moss, 67 S.W.3d 836, 847 (Tex. 2001)), and twenty-two months (Yancy v. United Surgical Partners Int’l, Inc., 236 S.W.3d 778, 785 (Tex. 2007)), revealed a lack of due diligence.

2024However, as this Court has held, the due-diligence requirement set forth in French and elsewhere “is distinct from the three bill of review elements; complainants must allege and prove that they exercised due diligence in pursuing all adequate legal remedies to the challenged judgment or show good cause for failing to exhaust those remedies in order to be entitled to seek bill of review relief.” Perdue, 142 S.W.3d at 606 (emphasis in original); see also Rizk v. Mayad, 603 S.W.2d 773, 775 (Tex. 1980) (“One with an available appeal who fails to pursue that remedy is not entitled to seek relief b

2009See Perdue , 142 S.W.3d at 606 .

2024In Ballard, the Court stated, “[T]the due diligence requirement does not apply if the defendant is arrested within the community supervision period.” Ballard v. State, 126 S.W.3d 919, 921 (Tex. Crim.

2012However, "the due diligence requirement does not apply if the defendant is arrested within the community supervision period." Ballard v. State, 126 S.W.3d 919, 921 (Tex. Crim.

2001App. 1976). 3 Judge Keller remarked that the court in Stover created the due-diligence doctrine “out of thin air.” See Connolly v. State, 983 S.W.2d 738, 741 (Tex. Crim.

2001Judge Keller remarked that the court in Stover created the due-diligence doctrine "out of thin air." See Connolly v. State , 983 S.W.2d 738, 741 (Tex. Crim.

2008This due diligence requirement is distinct from the three elements of the bill of review and is a prerequisite to bringing a bill of review. (footnote: 3) Caldwell v. Barnes , 975 S.W.2d 535 , 537–38 (Tex. 1998); Davis v. Smith , 227 S.W.3d 299, 302 (Tex. App.—Houston [1st Dist.] 2007, no pet.).

2008This due diligence requirement is distinct from the three elements of the bill of 4 review and is a prerequisite to bringing a bill of review. 3 Caldwell v. Barnes, 975 S.W.2d 535 , 537–38 (Tex. 1998); Davis v. Smith, 227 S.W.3d 299, 302 (Tex. App.—Houston [1st Dist.] 2007, no pet.).

2015(Resp. at 17-18) (citing Tenet Hospital Ltd. v. Rivera, 445 S.W.3d 698, 704-05 (Tex. 2014); Shah v. Moss, 67 S.W.3d 836 (Tex. 2001); Yancy v. United Surgical Partners Int’l, Inc., 236 S.W.3d 778 (Tex. 2007)).

2015In Tenet Hospitals Limited v. Rivera, 445 S.W.3d 698, 704-05 (Tex. 2014), the Supreme Court of Texas reviewed several decisions on the doctrine of due diligence.

2012Peacock, 77 S.W.3d at 289 ; see also Stover v. State, 365 S.W.2d 808, 809 (Tex.Crim.App.1963).

2012Peacock, 77 S.W.3d at 289 ; see also Stover v. State, 365 S.W.2d 808, 809 (Tex. Crim.

2011Ctr. at Houston v. Gutierrez, 237 S.W.3d 869 , 871 n. 1 (Tex.App.-Houston [1st Dist.] 2007, pet. denied); see also Buck v. Blum, 130 S.W.3d 285, 290 (Tex.App.-Houston [14th Dist.] 2004, no pet.) (de novo standard of review applies in reviewing interpretation of health care liability statute). .

2011Ctr. at Houston v. Gutierrez, 237 S.W.3d 869 , 871 n. 1 (Tex.App.-Houston [1st Dist.] 2007, pet. denied); see also Buck v. Blum, 130 S.W.3d 285, 290 (Tex.App.-Houston [14th Dist.] 2004, no pet.) (de novo standard of review applies in reviewing interpretation of health care liability statute). [8] Our sister courts in Fort Worth, Austin, and Corpus Christi have used the definition of "party" as one who has been served with process, waived service of process, or made an appearance.

2003Peacock v. State, 77 S.W.3d 285, 287-88 (Tex.Crim.App.2002); Brecheisen v. State, 4 S.W.3d 761, 763 (Tex.Crim.App.1999).

2001See Brecheisen, 4 S.W.3d 761, 763 (Tex. Crim.

2015(Resp. at 17-18) (citing Tenet Hospital Ltd. v. Rivera, 445 S.W.3d 698, 704-05 (Tex. 2014); Shah v. Moss, 67 S.W.3d 836 (Tex. 2001); Yancy v. United Surgical Partners Int’l, Inc., 236 S.W.3d 778 (Tex. 2007)).

2015Specifically, the Court noted that it had previously ruled that delays of four months 18 (Stockton), seventeen months (Shah v. Moss, 67 S.W.3d 836, 847 (Tex. 2001)), and twenty-two months (Yancy v. United Surgical Partners Int’l, Inc., 236 S.W.3d 778, 785 (Tex. 2007)), revealed a lack of due diligence.

2015See Harrell v. Alvarez, 46 S.W.3d 483, 485 (Tex. App.—El Paso 2001, no pet.) (in face of statute of limitations defense, if there is a fact issue on the question of due diligence of service, plaintiff had burden to obtain favorable findings); Stockton, 336 S.W.3d at 616-17 (plaintiff failed to raise fact issue, even if due diligence exception existed).

2015See Harrell v. Alvarez, 46 S.W.3d 483, 485 (Tex. App.—El Paso 2001, no pet.) (in face of statute of limitations defense, if there is a fact issue on the question of due diligence of service, plaintiff had burden to obtain favorable findings); Stockton, 336 S.W.3d at 616-17 (plaintiff failed to raise fact issue, even if due diligence exception existed).

2015See Reddy v. Hebner, 435 S.W.3d 323, 330 (Tex. App.—Austin 2014, pet. filed) (rejecting argument that Stockton court applied concepts of due diligence or relation-back to service of Chapter 74 reports); Key v. Muse, 352 S.W.3d 857 , 862- 63 (Tex. App.—Dallas 2011, no pet.) (declining to apply due diligence doctrine and recognizing that the Stockton court stopped short of deciding whether a due diligence exception applies to the expert report deadline), abrogated on other grounds by Zanchi v. Lane, 408 S.W.3d 373 (Tex. 2013).

2015See Reddy v. Hebner, 435 S.W.3d 323, 330 (Tex. App.—Austin 2014, pet. filed) (rejecting argument that Stockton court applied concepts of due diligence or relation-back to service of Chapter 74 reports); Key v. Muse, 352 S.W.3d 857 , 862- 63 (Tex. App.—Dallas 2011, no pet.) (declining to apply due diligence doctrine and recognizing that the Stockton court stopped short of deciding whether a due diligence exception applies to the expert report deadline), abrogated on other grounds by Zanchi v. Lane, 408 S.W.3d 373 (Tex. 2013).

2015See Wheat v. State, 165 S.W.3d 802, 805 (Tex. App.—Texarkana 2005, pet. dism’d).

2007In Wheat v. State , 165 S.W.3d 802 (Tex. App.--Texarkana 2005, pet. dism'd, untimely filed), we discussed recent changes in statutory law and concluded that, under the current statutory regime, the due-diligence defense is limited to situations in which the ground for revocation is a failure to report as ordered or to remain within a specified place--neither of which were grounds for revocation in this case.

2015“The due diligence requirement has not been met if the same diligence used to obtain the evidence 43 after trial would have had the same result if exercised before trial.” Neyland v. Raymond, 324 S.W.3d 646, 656 (Tex. App.—Fort Worth 2010, no pet.).

2014“The due diligence requirement has not been met if the same diligence used to obtain the evidence after trial would have had the same result if exercised before trial.” Neyland, 324 S.W.3d at 652 .

2011The court of appeals concluded that the statute did not provide for an exception to its deadline under these circumstances and was not unconstitutional as applied to her. 285 S.W.3d 517 .

2009See Offenbach v. Stockton, 285 S.W.3d 517 (Tex.App.-Dallas 2009, pet. filed.) (declining to engraft a due diligence exception to the 120-day deadline under the 2003 version of the statute when it was not possible to serve the defendant).