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Click here for the full text of this decision FACTS:The appellants (Michael Bailey, M.D., Jan Rowden, P.A., and Methodist Hospital Levelland, collectively referred to by the court as the hospital), claim that the trial court erred in refusing to dismiss the suit because Jana Hutchins, individually and as representative of the estate of Michael Hutchins, failed to comply with various provisions of Texas Civil Practice and Remedies Code Chapter 74 (House Bill 4). HOLDING:Affirmed. Whether the law in existence prior to HB 4 controls depends upon when Hutchins “filed” her claim. She contends that she did so prior to September 1st because the petition was deposited in the mail on Aug. 29, 2003. On the other hand, the hospital believes that because the item was not actually received by the court clerk until Sept. 2, 2003, it was not filed until that date. Who is correct depends on that portion of Rule 5 of the Texas Rules of Civil Procedure known as the mailbox rule. As applied, Rule 5 serves to modify the general rule requiring actual receipt of a pleading by the court clerk before one can consider it filed. If one complies with its terms, then the United States postal service, in essence, is deemed as a branch of the clerk’s office for the limited purpose of filing the document. Milam v. Miller, 891 S.W.2d 1 (Tex. App. � Amarillo 1994, writ ref’d). Yet, caution must be taken against reading the provision as extending any applicable filing date, for it does not; instead, it simply defines when a pleading is deemed filed. And, upon assigning the words contained in it their plain meaning, the court construes the rule to merely say that if one has to file a pleading by a certain date, then the instrument will be considered so filed if sent by properly addressed and stamped first class mail on or before the day on which it must be filed. To avoid the modifications wrought by HB 4, Hutchins had to file her original petition before Sept. 1, 2003. This is so because the Legislature restricted application of the changes to suits filed “on or after” the Act’s effective date, the latter being September 1st. Act of June 2, 2003, 78th Leg., R.S., ch. 204, 23.02(d), 2003 Tex. Gen. Laws 899. If filed before that day, then the old law would control. If not, then the new law would. Furthermore, the record illustrates that she sent the instrument to the Hockley County District Clerk via first class, properly stamped mail and the mailing was deposited with the post office on Aug. 29, 2003, or two days before Sept. 1st. No one disputes that the item was properly addressed to the proper clerk or that the postage was sufficient. Nor does anyone question that the district clerk received the document on Sept. 2, 2003, a date well within the 10 days prescribed by Rule 5. The court holds that Hutchins complied with Rule 5 and, therefore, her suit was filed before the date by which it had to be filed to avoid the modifications of HB 4. OPINION:Brian Quinn, J.; Quinn, Reavis and Campbell, JJ.

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