Texas Supreme Court Renders 18.001 Affidavits Useless in In Re Allstate

In today’s opinion entitled In Re Allstate, the Texas Supreme Court rendered an opinion guaranteed to clutter Texas Courts with more litigation in personal injury cases. In Re Allstate, (rendered 5/7/2021) holds that the long-time cost and time-saving statute is suddenly no longer there to streamline trials and remove the need for injury victims to bring costly medical experts to testify about the reasonableness and necessity of medical care in every case.

Section 18.001 of the Texas Civil Practice and Remedies Code

Section 18.001 is an evidentiary statute that allows an injured party to offer up medical bills by having a custodian sign an affidavit that they were reasonable and necessary. If the defense wished to challenge the reasonableness and necessity, they had to file a counter-affidavit, from a qualified expert, within a given time period. Failure to do so was a waiver of the right to raise a challenge to the reasonableness and necessity of the care.  The basis for this mandatory exclusion comes straight out of the statutory language as follows:

“A party intending to controvert a claim reflected by the affidavit must serve a copy of the counter-affidavit on each other party or the party’s attorney of record by.”

What Does the Word “Must” Mean?

The word ‘must’ has been defined by dictionaries as “be obliged to; should (expressing necessity), absolutely mandatory.”   Texas Government Code 311.016 defines ‘must’ as ‘must’ creates or recognizes a condition precedent.’

The Federal Aviation Administration has an interesting discussion of the meaning of the word “must” as used in legal documents in their Plain Language Basic Course.  They say: “We call “must” and “must not” words of obligation. “Must” is the only word that imposes a legal obligation on your readers to tell them something is mandatory.

Ah, yes, mandatory.

Well, if action “A” is mandatory before you can do action “B” then logic would say there is no “B” without “A.”  Applied here, if a party “intending to controvert a claim” MUST do “A” then what is the logical conclusion of what happens when they don’t do “A”?  They don’t get to controvert the claim, right?  Said differently, if you want to do “B” you must do “A” first, then when you don’t do “A” first, you don’t get to do “B.”  This isn’t rocket science.

Literally, thousands of trial court cases and every Texas court of appeals that has ever interpreted this statute (which is most of them) have recognized that the meaning of the word “must” imposes a requirement.  This has prevented the need to bring doctors down to give testimony that their bills were reasonable and the care provided was necessary in every single case. Many cases have numerous doctors of different training.  A trial with each of them testifying as to reasonableness could be drug out for weeks. To ensure this did not clog the courts with litigation, section 18.001 was enacted to force the defense, upon proper affidavits filed by the plaintiff, to disclose a valid basis for challenging any bill they wished to challenge. Failure to give reasonable notice by way of a counter-affidavit by a qualified medical expert has resulted in the defense not being allowed to testify. This statute was designed to and did reduce the need for trials to drag on and cost more than they really ought to.  See Turner v. Peril, 50 S.W.3d 742, 746 (Tex.App.—Dallas 2001, pet. Denied) Apparently, not anymore.

Section 18.001 of the Texas Civil Practice and Remedies Code Upended

The In Re Allstate opinion undid all that 18.001 accomplished. The Texas Supreme Court decided that not only can someone with no medical background read a billing database and testify about the reasonableness of the charges but that even if the defendant fails to file a counter-affidavit, they can still surprise Plaintiff at trial by challenging the evidence they chose not to counter.  In their words: “[t]here is no textual support for the assertion that the absence of a proper counter-affidavit constitutes a basis to constrain the defendant’s ability to challenge—through evidence or argument—the claimant’s assertion that her medical expenses are reasonable and necessary.” In Re Allstate 5/7/2021.  Really?  Please review the above discussion of the word must.

Why Did the Texas Supreme Court Say Failure to File Counter-affidavits no Longer results in the Exclusion of Contra-Evidence?

According to the Texas Supreme Court Opinion from In re Allstate, the mandatory exclusion of evidence for failure to file a proper counter-affidavit ‘has no basis in the statute’s text. Section 18.001 nowhere provides for the exclusion of any evidence based on the absence of a proper counter-affidavit.’  Apparently, ‘must’ no longer means ‘must.’

 Imagining a Brave New World Without Must

This opinion could be the beginning of the destruction of our ability to rely upon any statute or contract that uses the word ‘must’ to impose an obligation. One can argue that this new Texas Supreme Court opinion holds that just because a statute or a contract says you must provide notice by a certain time if you wish to do something does not mean you are prohibited from doing it.  Using the Supreme Court’s logic, the clause “tenant must provide lessor notice of intent to not renew at least 30 days prior to cancellation” no longer has the consequence of prohibiting one from canceling the contract without notice.

Must vs Shall

According to the Cambridge Dictionary, “’shall’ is a word used instead of ‘must’ when the subject is ‘I’ or ‘we.’”  If “must” and “shall” are the same thing, then the Texas Traffic code seems meaningless.  A driver “shall” stop and render aid…a driver “shall” stop before entering on a red light.  Under the Supreme Court’s opinion in In Re Allstate, the word “must” seems to carry zero obligation so one could argue that shall, which means the same thing, carries no obligation either.


The Texas Supreme Court in In re Allstate totally ignores the plain language of the statute and the meaning of the word “must.” As a result, the ruling frustrates the purpose of section 18.001 for all cases to come and guarantees that medical bills will be a fight in every case. This opinion is not good for injured victims of accidents nor for the Texas judicial system.  Hopefully, they will reconsider and reverse this opinion.