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Texas Supreme Court Changes the Term “Must” in Texas Courts

Texas Supreme Court Changes Meaning of Term Must in Texas Courts | McKay Law

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Texas Civil Practice and Remedies Code Section 18.001 & In Re: Allstate 5/7/2021

The Texas Supreme Court issued an opinion on 5/7/2021, In Re Allstate, that will almost certainly result in more personal injury litigation in Texas courts.

In Re Allstate (decided 5/7/2021), the long-standing cost-cutting and time-saving statute is suddenly no longer in effect, removing the need for injury victims to hire expensive medical specialists to testify about the reasonableness and necessity of medical treatment in every instance.

Section 18.001 of the Evidence Code allowed an injured party to present medical expenses by having a custodian sign an affidavit stating that they were reasonable and necessary. The defense could produce a counter-affidavit from a qualified expert within a certain time period if they wanted to contest the reasonableness and necessity. Failure to do so resulted in a waiver of the right to question the care’s reasonableness and need. The following is the rationale for this mandatory exclusion as stated in the statute:

“A party desiring to refute an affidavit allegation must serve a copy of the counter-affidavit on each other party or the party’s attorney of record by.”

What Does “Must” Really Mean?

Dictionary definitions for the word “must” include “be forced to; should (showing necessity), absolutely mandatory.” ‘Must’ is defined in Texas Government Code 311.016 as ‘must’ creates or acknowledges a condition precedent.’

Yes, it is required.

If action “A” is required before action “B,” then logic dictates that “B” cannot exist without “A.” If a party “intending to controvert a claim” MUST do “A,” what is the logical consequence of what happens if they don’t? They don’t get to refute the claim, do they? To put it another way, if you want to do “B,” you must first do “A,” and if you don’t, you won’t get to do “B.” This isn’t a difficult task.

Thousands of trial court cases have acknowledged that the meaning of the term “must” imposes a requirement, as has every Texas court of appeals that has ever construed this statute (which is the vast majority of them).

This has eliminated the requirement for doctors to testify that their costs were reasonable and that the care provided was essential in each and every case. In many circumstances, there are multiple doctors with varying degrees of training. It’s possible that a trial with each of them testifying on reasonableness might drag on for weeks. Section 18.001 was designed to prevent the courts from being overburdened with litigation by requiring the defense, upon proper affidavits presented by the plaintiff, to provide a valid basis for challenging any bill they chose to dispute.

The defense has been denied the right to testify due to a failure to provide reasonable notice in the form of a counter-affidavit signed by a qualified medical expert. This statute was intended to avoid the need for lengthy trials that cost more than they should have. Peril v. Turner, 50 S.W.3d 742, 746 (Tex.App.—Dallas 2001, pet. denied). Not anymore, it appears.

The Texas Civil Practice and Remedies Code, Section 18.001, was overturned.

All that 18.001 accomplished was undone by the In Re Allstate decision. Not only can someone with no medical training analyze a billing database and testify about the appropriateness of the charges, but even if the defendant fails to file a counter-affidavit, they can still surprise Plaintiff at trial by contesting the facts they chose not to counter. “There is no textual support for the idea that the lack of a proper counter-affidavit constitutes a basis to curtail the defendant’s ability to challenge the claimant’s contention that her medical expenses are reasonable and necessary,” they write. 5/7/2021 In re Allstate Really? Please revisit the explanation of the word must from before.

Why did the Texas Supreme Court rule that failing to file counter-affidavits no longer results in contra-evidence being excluded?

The required exclusion of evidence for failing to file a proper counter-affidavit, according to the Texas Supreme Court opinion in In re Allstate, “has no support in the statute’s text.” The absence of a suitable counter-affidavit has no bearing on the admissibility of any evidence under Section 18.001.’ ‘Must’ appears to have lost its meaning.

Imagining a Brave New World Free of Obligations

This decision could spell the end of our ability to rely on any statute or contract that includes the word “must” to establish a requirement. One could argue that this latest Texas Supreme Court judgment holds that just because a statute or a contract requires you to submit notice by a certain date does not mean you are forbidden from doing so. The condition “tenant must offer lessor notice of intend to not renew at least 30 days prior to cancellation” no longer has the effect of barring one from canceling the contract without notice, according to the Supreme Court’s interpretation.

Should vs. Must

“‘Shall’ is a term used instead of ‘must’ when the subject is ‘I’ or ‘us,'” according to the Cambridge Dictionary. If “must” and “shall” are synonymous, the Texas Traffic Code appears to be useless. A driver “must” stop and give assistance…a driver “must” halt before proceeding through a red light. The word “must” appears to have no responsibility under the Supreme Court’s decision in In Re Allstate, so one may argue that shall, which means the same thing, carries no obligation as well.


In In re Allstate, the Texas Supreme Court completely disregards the statute’s plain text and the meaning of the term “must.” As a result, the judgment defeats the aim of section 18.001 in all future cases, ensuring that medical bills will be a battle in every case. This decision does not bode well for accident victims or the Texas legal system. Hopefully, they will review their position, change their minds and ultimately reverse their decision.

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