In Herrera v. Seton Northwest Hospital, 212 S.W.3d 452, 459 (Tex. App.--Austin 2006, no pet.), Herrera's attorneys claimed that they had timely sent, by regular mail, a copy of Herrera's medical liability expert report to the defendant doctor and hospital. Herrera, 212 S.W.3d at 456.
Significantly, both the doctor and the hospital alleged that they did not receive the report until Herrera's attorneys subsequently sent them, outside of section 74.351(a)'s deadline, the report by facsimile transmission. Id.
Herrera argued that under the "mailbox rule" in Texas Rule of Civil Procedure 5, he "constructively delivered" the report to the defendants when he placed it into the control of the United States Postal Service. Id.
he Austin Court of Appeals concluded that Herrera's reliance upon rule 5 was misplaced because it concerns the filing of documents with a court clerk, not service on a party. Id. at 458 (citing Tex. R. Civ. P. 5).
The court also concluded that the Legislature intended for health care liability claimants to comply with rule 21a "to fulfill the requirements of section 74.351(a)." Id. at 459.
However, in doing so, the court noted that a "party who accomplishes service under rule 21a is entitled to a presumption of delivery":
A certificate by a party or an attorney of record, or the return of the officer, or the affidavit of any other person showing service of a notice shall be prima facie evidence of the fact of service. Id. (quoting Tex. R. Civ. P. 21a) .