open courts challenge in Texas

2019Yancy v. United Surgical Partners Int’l, Inc., 236 S.W.3d 778, 783 (Tex. 2007); Offenbach v. Stockton, 285 S.W.3d 517, 522 (Tex. App.—Dallas 2009), aff’d, 336 S.W.3d 610 (Tex. 2011) (observing that “an open courts challenge is a due process complaint”).

2017While the open courts guarantee prohibits the Legislature from making “a remedy by due course of law contingent upon an impossible condition,” the party bringing an open courts violation must raise a fact issue establishing that it did not have a “reasonable opportunity to be heard.” Stockton, 336 S.W.3d at 617 -18 (quoting Diaz v. Westphal, 941 S.W.2d 96, 100 (Tex. 1997), and citing Yancy v. United Surgical Partners Int'l, Inc., 236 S.W.3d 778, 785 (Tex. 2007)); see Tex. Const, art I, § 13 (“All courts shall be open, and every person for an injury done him, in his lands, goods, person or repu

2023“Proof of an open courts violation requires two elements: (1) a cognizable, common-law claim that is statutorily restricted, and (2) the restriction is unreasonable or arbitrary when balanced against the statute’s purpose and basis.” Id.

2015Accord *521 Sax v. Votteler, 648 S.W.2d 661, 665 (Tex.1983); Waites v. Sondock, 561 S.W.2d 772, 774 (Tex.1977). [12] [13] In considering the plaintiffs' open courts challenge, we must compare the current statute to the common law remedy, not to the previous statute.

2021Power Co. v. Grant, 73 S.W.3d 211, 222 (Tex. 2002) (“A litigant must raise an open-courts challenge in the trial court.”); Texas Dep’t of Protective & Reg. Servs. v. Sherry, 46 S.W.3d 857, 861 (Tex. 2001) (“As a rule, a claim, including a constitutional claim, must have been asserted in the trial court in order to be raised on appeal.” (cleaned up)); Baumgart v. Archer, 581 S.W.3d 819 , 831 (Tex. App.—Houston [1st Dist.] 2019, pet. denied) (party “did not raise these constitutional challenges in the trial court, and therefore they are not preserved for our review”); Pruski v. American Med.

2021Power Co. v. Grant, 73 S.W.3d 211, 222 (Tex. 2002) (holding that “litigant 10 must raise an open-courts challenge in the trial court” to preserve it for appellate review); Taylor v. Corr.

2017While the open courts guarantee prohibits the Legislature from making “a remedy by due course of law contingent upon an impossible condition,” the party bringing an open courts violation must raise a fact issue establishing that it did not have a “reasonable opportunity to be heard.” Stockton, 336 S.W.3d at 617 -18 (quoting Diaz v. Westphal, 941 S.W.2d 96, 100 (Tex. 1997), and citing Yancy v. United Surgical Partners Int'l, Inc., 236 S.W.3d 778, 785 (Tex. 2007)); see Tex. Const, art I, § 13 (“All courts shall be open, and every person for an injury done him, in his lands, goods, person or repu

2013Furthermore, while the Texas Constitution’s open courts guarantee prohibits the Legislature from making “a remedy by due course of law contingent upon an impossible condition,” a person claiming an open courts violation must raise a fact issue establishing that he did not have a “reasonable opportunity to be heard.” Stockton v. Offenbach, 336 S.W.3d 610 , 617–18 (Tex. 2011) (quoting Diaz v. Westphal, 941 S.W.2d 96, 100 (Tex. 1997) and citing Yancy v. United Surgical 8 Partners Int’l, Inc., 236 S.W.3d 778, 785 (Tex. 2007)); see also TEX.

2025Co., 236 S.W.3d 765, 777 (Tex. 2007) (holding party in underlying case had “no right of reimbursement through subrogation” because insured had no cause of action against third party); Moreno v. Sterling Drug, Inc., 787 S.W.2d 348, 357 (Tex. 1990) (holding party’s “constitutional attack on section 16.003(b) is not premised upon restriction of a common-law cause of action, and, therefore, necessarily fails the first prong of the open courts test”).

2009In order to establish an open courts violation, a claimant must show that she has a well-recognized common-law cause of action that is being restricted and that the restriction is unreasonable or arbitrary when balanced against the purpose and basis of the statute. 5 Id.

2020Thus, wrongful-death and survival claimants “cannot establish an open-courts violation because they ‘have no common law right to bring either.’” Id. (quoting Bala v. Maxwell, 909 S.W.2d 889, 893 (Tex. 1995)). 3.

2020Thus, wrongful-death and survival claimants “cannot establish an open-courts violation because they ‘have no common law right to bring either.’” Id. (quoting Bala v. Maxwell, 909 S.W.2d 889, 893 (Tex. 1995)). 3.

2014Regarding the open courts challenge, the dissent correctly observes that the open courts provision requires a “reasonable opportunity” to sue and may not make a remedy contingent on “an impossible condition.” 445 S.W.3d 698, 711 (Lehrmann, J., dissenting) (quoting Stockton, 336 S.W.3d at 617-18 , and Shah, 67 S.W.3d at 842 ).

2014Regarding the open courts challenge, the dissent correctly observes that the open courts provision requires a “reasonable opportunity” to sue and may not make a remedy contingent on “an impossible condition.” __ S.W.3d __, __ (Lehrmann, J., dissenting) (quoting Stockton, 336 S.W.3d at 617–18, and Shah, 67 S.W.3d at 842 ).

2014However, in an Open Courts challenge to the pre-2008 election-of-remedies provision, the Texas Supreme Court upheld the immunity mechanism as a whole, noting that a plaintiff could “still opt to pursue the full common law remedy against the responsible employee, foregoing or postponing any attempt to recover from the government.” Thomas v. Oldham, 895 S.W.2d 352, 357-58 (Tex.1995).

2014However, in an Open Courts challenge to the pre-2008 election-of-remedies provision, the Texas Supreme Court upheld the immunity mechanism as a whole, noting that a plaintiff could “still opt to pursue the full common law remedy against the responsible employee, foregoing or postponing any attempt to recover from the government.” Thomas v. Oldham, 895 S.W.2d 352, 357-58 (Tex.1995).

2021Gagnier v. Wichelhaus, 17 S.W.3d 739, 745 (Tex. App.—Houston [1st Dist.] 2000, pet. denied) (citing Neagle, 685 S.W.2d at 14 ); DeRuy v. Garza, 995 S.W.2d 748, 753 (Tex. App.— San Antonio 1999, no pet.) (concluding reasonableness of eleven-month delay was a fact question precluding summary judgment); see also Chang v. Denny, No. 05-17-01457- CV, 2019 WL 3955765 , at *8 (Tex. App.—Dallas Aug. 22, 2019, pet. denied) (mem. op.) (upholding a jury finding of reasonableness in a twenty-five-month delay where plaintiff offered evidence of time to find correct treatment, complications from the alleged

2003Compare Shah, 67 S.W.3d at 847 (endorsing a one-year limit to what is considered unreasonable as a matter of law), and Gagnier v. Wichelhaus, 17 S.W.2d 739, 745 (Tex. App.CHouston [1st Dist.] 2000, pet. denied) (ten-month delay reasonable when taking into account Adelay in providing medical records, the time for recovery, consultation with an attorney and investigation@), and DuRuy v. Garza, 995 S.W.2d 748, 753 (Tex. App.CSan 20 was impossible or exceedingly difficult for Ms. O=Reilly to discover her injury and bring suit requires an entirely different standard than determining whether suit wa

2015See Middleton v. Texas Power & Light Co., 108 Tex. 96 , 185 S.W. 556, 562 (1916) (holding that former act did not impair right to jury trial because it authorized “a jury trial of the matters in dispute, under the law as embodied in the Act ”) (emphasis added).

2015See Middleton v. Texas Power & Light Co., 108 Tex. 96 , 185 S.W. 556, 562 (1916) (holding that former act did not impair right to jury trial because it authorized “a jury trial of the matters in dispute, under the law as embodied in the Act ”) (emphasis added).

2020Thus, wrongful-death and survival claimants “cannot establish an open-courts violation because they ‘have no common law right to bring either.’” Id. (quoting Bala v. Maxwell, 909 S.W.2d 889, 893 (Tex. 1995)). 3.

2020Thus, wrongful-death and survival claimants “cannot establish an open-courts violation because they ‘have no common law right to bring either.’” Id. (quoting Bala v. Maxwell, 909 S.W.2d 889, 893 (Tex. 1995)). 3.

2003As the court noted, the decisions in Nelson and Neagle were “premised on the fact that it *705 was not possible for the parties to discover the injury within the two-year period.” Morrison v. Chan, 699 S.W.2d 205, 207 (Tex.1985) (emphasis added). 5 The open-courts doctrine is premised on the notion that “the legislature has no power to make a remedy by due course of law contingent on an impossible condition.” Id. (citing Nelson, 678 S.W.2d at 921 ) (emphasis added).

2003As the court noted, the decisions in Nelson and Neagle were Apremised on the fact that it was not possible for the parties to discover the injury within the two-year period.@ Morrison v. Chan, 699 S.W.2d 205, 207 (Tex. 1985) (emphasis added).5 The open-courts doctrine is premised on the notion that Athe legislature has no power to make a remedy by due course of law contingent on an impossible condition.@ Id. (citing Nelson, 678 S.W.2d at 921 ) (emphasis added). 5 The court in Morrison held that the language of section 10.01, the legislative history, and the language in Nelson make it clear tha

2020See Yancy v. United Surgical Partners Int’l, Inc., 236 SW.3d 778, 783 (Tex. 2007); Jennings v. Burgess, 917 S.W.2d 790, 793 (Tex. 1996); O’Reilly v. Wiseman, 107 S.W.3d 699, 707 (Tex. App.—Austin 2003, pet. denied).

2016See Jennings, 917 S.W.2d at 793 .

2012Owens Corning v. Carter, 997 S.W.2d 560, 573 (Tex. 1999).

2012Owens Corning v. Carter, 997 S.W.2d 560, 573 (Tex.1999).

2021Ltd. v. Rivera, 445 S.W.3d 698, 703 (Tex. 2014) (“Procedurally, the party raising the open courts challenge must raise a fact issue establishing that he did not have a reasonable opportunity to be heard.”) (internal quotations omitted).

2020Ltd. v. Rivera, 445 S.W.3d 698, 703 (Tex. 2014) (“In short, an open courts challenge is a due process complaint.”).

2015Weiner, 900 S.W.2d at 318-20 .5 The court concluded that the minor’s cause of action had been 5 See Rankin, 307 S.W.3d at 287 (noting that the court cannot focus solely on the claimant’s lost right to sue: “Open Courts analysis is not quite this myopic; focusing solely on Rankin’s lost right to sue ignores the broader societal concerns that spurred the Legislature to act.”).

2014Rankin, 307 S.W.3d at 288 (holding that public interest in lowering malpractice insurance premiums and increasing access to health care by implementing this repose statute was a valid exercise of the police power sufficient to overcome an open courts challenge).

2025Stated differently, an open-courts challenge must show that (1) “the litigant has a cognizable common law cause of action that is being re- stricted,” and (2) “the restriction is unreasonable or arbitrary when bal- anced against the purpose and basis of the statute.” Trinity River Auth. v. URS Consultants, Inc.-Tex., 889 S.W.2d 259, 262 (Tex. 1994).

2023The open courts provision is implicated if the Legislature “withdraw[s] common-law remedies for well established common-law causes of action.” Lebohm v. City of Galveston, 275 S.W.2d 951, 955 (Tex. 1955); accord Methodist Healthcare Sys. v. Rankin, 307 S.W.3d 283, 286 (Tex. 2010); Trinity River Auth. v. URS Consultants, Inc.-Tex., 889 S.W.2d 259, 262 (Tex. 1994).

2013McGlothlin v. Cullington, 989 S.W.2d 449, 453 (Tex. App.—Austin 1999, pet. denied).

2007McGlothlin v. Cullington, 989 S.W.2d 449, 453 (Tex. App.—Austin 1999, pet. denied).

2004See, e.g., Simmons v. Healthcare Ctrs. of Tex., Inc. , 55 S.W.3d 674, 678 (Tex. App.—Texarkana 2001, no pet.) (holding plaintiff must only allege facts setting up open courts defense); Voegtlin v. Perryman , 977 S.W.2d 806, 811 (Tex. App.—Fort Worth 1998, no pet.) (same: holding plaintiff has only burden of pleading violation of open courts provision); Krueger v. Gol , 787 S.W.2d 138, 140 (Tex. App.—Houston [14th Dist.] 1990, writ denied) (op. on reh’g) (holding defendant doctor bore burden of proof to establish no genuine issue of fact existed concerning when the plaintiff should have learned

2004See, e.g., Simmons v. Healthcare Ctrs. of Tex., Inc. , 55 S.W.3d 674, 678 (Tex. App.—Texarkana 2001, no pet.) (holding plaintiff must only allege facts setting up open courts defense); Voegtlin v. Perryman , 977 S.W.2d 806, 811 (Tex. App.—Fort Worth 1998, no pet.) (same: holding plaintiff has only burden of pleading violation of open courts provision); Krueger v. Gol , 787 S.W.2d 138, 140 (Tex. App.—Houston [14th Dist.] 1990, writ denied) (op. on reh’g) (holding defendant doctor bore burden of proof to establish no genuine issue of fact existed concerning when the plaintiff should have learned

2003See, e.g., DeRuy v. Garza , 995 S.W.2d 748, 752 (Tex. App.-San Antonio 1999, no pet.) (statute of limitations violated the open courts provision by precluding a patient's claim before she learned of misdiagnosis); Glyn-Jones v. Bridgestone/Firestone, Inc. , 857 S.W.2d 640, 643-44 (Tex. App.-Dallas 1993), aff'd on other grounds , 878 S.W.2d 132 (Tex. 1994) (statute violated open courts provision by prohibiting use of seat belt evidence in civil trials thereby preventing redress for injuries to plaintiffs who allege that defective seat belt systems contributed to the severity of their injuries);

2002See, e.g., DeRuy v. Garza, 995 S.W.2d 748, 752 (Tex.App.-San Antonio 1999, no pet.) (statute of limitations violated the open courts provision by precluding a patient’s claim before she learned of misdiagnosis); Glyn-Jones v. Bridgestone/Firestone, Inc., 857 S.W.2d 640, 643-44 (Tex.App.-Dallas 1993), aff'd on other grounds, 878 S.W.2d 132 (Tex.1994) (statute violated open courts provision by prohibiting use of seat belt evidence in civil trials thereby preventing redress for injuries to plaintiffs who allege that defective seat belt systems contributed to the severity of their injuries); Hanks

2003As the court noted, the decisions in Nelson and Neagle were “premised on the fact that it *705 was not possible for the parties to discover the injury within the two-year period.” Morrison v. Chan, 699 S.W.2d 205, 207 (Tex.1985) (emphasis added). 5 The open-courts doctrine is premised on the notion that “the legislature has no power to make a remedy by due course of law contingent on an impossible condition.” Id. (citing Nelson, 678 S.W.2d at 921 ) (emphasis added).

2003As the court noted, the decisions in Nelson and Neagle were “premised on the fact that it *705 was not possible for the parties to discover the injury within the two-year period.” Morrison v. Chan, 699 S.W.2d 205, 207 (Tex.1985) (emphasis added). 5 The open-courts doctrine is premised on the notion that “the legislature has no power to make a remedy by due course of law contingent on an impossible condition.” Id. (citing Nelson, 678 S.W.2d at 921 ) (emphasis added).

2024Ctr., 307 S.W.3d 292, 295 (Tex. 2010) (discussing the plaintiff’s burden with regard to the open-courts exception to the statute-of-limitations defense). 12 In interpreting a statute’s plain language, we construe the words and phrases chosen by the Legislature in context.

2024Ctr., 307 S.W.3d 292, 295 (Tex. 2010) (discussing the plaintiff’s burden with regard to the open-courts exception to the statute-of-limitations defense). 12 In interpreting a statute’s plain language, we construe the words and phrases chosen by the Legislature in context.

2021The party alleging an open courts violation must raise a fact issue establishing that he did not have a “reasonable opportunity to be heard.” Id. at 618 ; Tenet Hosps.

2019Yancy v. United Surgical Partners Int’l, Inc., 236 S.W.3d 778, 783 (Tex. 2007); Offenbach v. Stockton, 285 S.W.3d 517, 522 (Tex. App.—Dallas 2009), aff’d, 336 S.W.3d 610 (Tex. 2011) (observing that “an open courts challenge is a due process complaint”).

2000Here, the statutory benefit of a like-kind replacement of goods is not “so inadequate as to run afoul of the open courts doctrine.” Id.

2000Here, the statutory benefit of a like-kind replacement of goods is not "so inadequate as to run afoul of the open courts doctrine." Id.

2016Neagle v. Nelson, 685 S.W.2d 11, 12 (Tex. 1985). 5 To pursue an Open Courts claim in a health care liability case, the claimant must first show a common-law claim that the statute restricts.

2016Neagle v. Nelson, 685 S.W.2d 11, 12 (Tex. 1985). 5 To pursue an Open Courts claim in a health care liability case, the claimant must first show a common-law claim that the statute restricts.

2015Weiner, 900 S.W.2d at 318-20 .5 The court concluded that the minor’s cause of action had been 5 See Rankin, 307 S.W.3d at 287 (noting that the court cannot focus solely on the claimant’s lost right to sue: “Open Courts analysis is not quite this myopic; focusing solely on Rankin’s lost right to sue ignores the broader societal concerns that spurred the Legislature to act.”).

2014In that case, we considered an open courts challenge to the statute that replaced article 5.82. 900 S.W.2d at 317-18 .

2014“A claimant who brings an open courts challenge has the burden of showing that the expert-report requirements actually prevented him from pursuing his claims.” Herrera v. Seton Northwest Hosp., 212 S.W.3d 452, 461 (Tex.App.-Austin 2006, no pet.).

2011Hosp., 212 S.W.3d 452, 461-62 (Tex. App.–Austin 2004, no pet.) (holding that the statute did not violate the open courts doctrine where the plaintiff "did not produce any evidence that the requirements of section 74.351 worked to prevent him from pursuing his claim" and, in fact, admitted that his failure to timely serve his expert report was the "result of the inadvertent failure to deliver documents"); Perry v. Stanley, 83 S.W.3d 819, 825 (Tex. App.–Texarkana 2003, no pet.) (citing Gill v. Russo, 39 S.W.3d 717, 718-19 (Tex. App.–Houston [1st Dist.] 2001, pet. denied)) (holding that section 7

2020Open Courts Analysis to Puente’s Common-Law Medical Malpractice Action In applying the two-prong open courts analysis, we first note that Puente brought a medical malpractice cause of action against Dr. Virlar and Gonzaba, which is a common law cause of action that “Texas courts have long recognized.” Lucas, 757 S.W.2d at 688 .

2020Open Courts Analysis to Puente’s Common-Law Medical Malpractice Action In applying the two-prong open courts analysis, we first note that Puente brought a medical malpractice cause of action against Dr. Virlar and Gonzaba, which is a common law cause of action that “Texas courts have long recognized.” Lucas, 757 S.W.2d at 688 .

2025We held this restriction is “a reasonable exercise of the police power in the interest of the general welfare.” Id. at 14 (quoting Franka, 332 S.W.3d at 385 ); see also Elias, 2018 WL 3233587 , at *10 (rejecting plaintiff’s argument that dismissal of his slander-per-se claim under section 101.106(f) would violate Open Courts 32 provision because “[w]e have previously considered this same constitutional challenge to section 101.106(f) on several occasions and have found it to be without merit”); Harold v. Carrick, No. 01-12-00175-CV, 2013 WL 4828744 , at *3 (Tex. App.—Houston [1st Dist.] Sept.

2017Further, although an open courts challenge to the current version of section 101.106(f) was not made in Franka, the majority of the Supreme Court nevertheless expressed its opinion in that case that “restrictions on government employee liability have always been part of the tradeoff for the [TTCA’s] waiver of immunity, expanding the government’s own liability for its employees’ conduct, and thus ‘a reasonable exercise of the police power in the interest of the general welfare.’” 332 S.W.3d at 385 (quoting Texas Workers’ Comp.