                                  IN THE
                          TENTH COURT OF APPEALS

                                 No. 10-11-00446-CV

ANA MARIA GONZALEZ SALAIS, INDIVIDUALLY
AND AS REPRESENTATIVE OF THE ESTATE OF
RUBEN GONZALEZ, DECEASED,
                                    Appellant
v.

MEXIA STATE SCHOOL, TEXAS DEPARTMENT OF
AGING & DISABILITY SERVICES AND HUMANE
RESTRAINT, INC.,
                                    Appellees


                            From the 77th District Court
                             Limestone County, Texas
                              Trial Court No. 28901A


                            DISSENTING OPINION


       There are large portions of the Court’s opinion with which I agree. In this case,

everyone, now including Salais, agrees that the expert report which was provided was

deficient. However, I believe that this appeal cannot be determined without analyzing

and resolving the next two questions in the continuing development of the law with

regard to an extension of time to cure deficiencies in an expert affidavit for a health care
liability claim. First, who has the burden of going forward? Second, what must be

shown or proven at a hearing on a motion for a 30-day extension in which to amend the

expert report?

        The trial court had been presented with a motion for a 30-day extension of time

in which to cure the deficient report. This Court previously held that a docket entry

expressly stating that the motion was denied, although joined with a judgment that

denied all other relief requested by Salais and dismissed the claims as to that defendant,

was inadequate to establish that the trial court had considered and ruled on the motion.

Salais v. Tex. Dep't of Aging & Disability Servs., 323 S.W.3d 527, 537 (Tex. App.—Waco

2010, pet. denied). The proceeding was remanded and the trial court signed an order

denying the motion, which is the subject of this appeal. From the record before us, it is

not clear whether the trial court simply reduced the prior determination to a written

order denying the motion, or whether the trial court’s order was, in effect, a de novo

ruling on the motion after another hearing after the remand.

        We have no reporter’s record from the first hearing at which the motion for a 30-

day extension was considered. We do have a reporter's record from the hearing to

consider the motion for a 30-day extension after the remand; however, no evidence was

presented at that hearing.     Counsel for Salais simply presented argument that the

deficiencies in the report could be cured.




Salais v. Mexia State School                                                        Page 2
        Although this Court has repeated in its opinion many of the Texas Supreme

Court’s recent statements about the consideration to be given by the trial court in

determining whether to ultimately grant or deny a 30-day extension after filing a

deficient report, I believe we must first determine who has the burden of proving what

at the hearing on the motion. I believe that because it is the plaintiff's motion, the

plaintiff has the burden of establishing the basis for granting the motion. The failure to

do so must fall on the plaintiff.

        We should next determine what must be shown at the hearing. From the recent

statements of the Texas Supreme Court in the majority's opinion, it is clear that there are

two things that must be shown. First, it must be shown that the deficiency in the expert

report can be cured. Second, it must be shown that the cure can be completed in thirty

days. In my review of the record before us, I find no evidence to show that the

deficiencies can be cured, and if so, that they can be cured within thirty days.

        In its review and judgment, this Court has done what it appears the Texas

Supreme Court wants the trial court to do. Our responsibility, however, is to determine

whether or not the trial court abused its discretion in its decision to deny the motion.

Bosch v. Wilbarger Gen. Hosp., 223 S.W.3d 460, 465 (Tex. App.—Amarillo 2006, pet

denied); Hardy v. Marsh, 170 S.W.3d 865, 870-71 (Tex. App.—Texarkana 2005, no pet.).

See Ogletree v. Matthews, 262 S.W.3d 316, 320-21 (Tex. 2007). On the record before us, a

determination that the trial court has abused its discretion in denying the motion means


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that the simple representation from counsel that the report can be cured in 30 days is all

that is necessary to obtain the 30-day extension. This seems to be an automatic 30-day

extension based upon that representation when the report is found deficient. I do not

believe that this is what the statute requires, and I cannot agree to go that far unless and

until the Texas Supreme Court holds that, in circumstances such as this, the trial court

has no discretion and must grant an extension.

        On the record of the proceedings in front of this trial court, I cannot conclude

that the trial court abused its discretion in denying the motion because Salais, as the

movant, did nothing to establish how the report could be cured. Indeed, years have

passed since the trial court and this Court first reviewed these issues and nothing was

presented to the trial court at the most recent hearing to show that any attempts had

been made to fix the deficiencies in the report, that they could be fixed, or that to do so

could be accomplished in 30 days. Had such a showing been made, the trial court’s

decision might be different.

        The record before us shows the trial court's marked frustration with the lack of

clear guideposts of where the boundaries of the trial court’s discretion are in these

determinations. The record also shows a very concerted effort to make the proper

ruling without those clear guideposts.

        I respectfully dissent to this Court’s determination that the trial court abused its

discretion by denying the motion for a 30-day extension in which to file an expert


Salais v. Mexia State School                                                          Page 4
report. To hold otherwise on this record is nothing short of an automatic extension if a

motion for extension is filed.




                                        TOM GRAY
                                        Chief Justice

Dissenting Opinion issued and filed June 6, 2013




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