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Click here for the full text of this decision FACTS:The Police Civil Service Commission appeals the district court’s denial of its plea to the jurisdiction. In this interlocutory appeal, the court determines whether the commission established that appellee, Rafael Gutierrez, lacked diligence as a matter of law in serving the commission with citation. HOLDING:Affirmed. Texas Local Government Code �143.015 sets forth a filing deadline for appealing a commission decision to district court. It does not explicitly state that service of citation must be effected before the filing deadline expires. Nevertheless, the commission argues that Gutierrez did not properly file his petition before the 10-day deadline, because the record establishes as a matter of law that he did not exercise due diligence in serving the commission with citation. The commission suggests that the district court was deprived of subject-matter jurisdiction pursuant to �143.015. In order to properly bring a suit, a plaintiff must both file the suit and perfect service of citation within the applicable limitations period. However, if a plaintiff files suit before the limitations period expires, but effects service of citation after the limitations period expires, the date of service relates back to the date of filing if the plaintiff exercised diligence in effecting service. Gant v. Deleon, 786 S.W.2d 259 (Tex. 1990). The standard of due diligence is the diligence an ordinarily prudent person would use under the same or similar circumstances. James v. Gruma Corp., 129 S.W.3d 755 (Tex. App. – Fort Worth 2004, pet. denied). Whether a plaintiff was diligent in serving the defendant is normally a question of fact, but if no excuse is offered for a delay or if the lapse of time coupled with the plaintiff’s acts conclusively negate diligence, lack of diligence will be found as a matter of law. Any unexplained delay in effecting service constitutes a lack of diligence. Here, Gutierrez effected service of citation after the limitations period had expired. The record indicates that on Feb. 11, one day before the expiration of the statutory limitations period, Gutierrez filed his petition with the district court and faxed a copy to the commission and the city attorney’s office. The record also includes an affidavit from Anne Morgan, chief of the litigation division for the City of Austin Law Department, stating that on Feb. 28 she received a call from Gutierrez’s attorney, William Kolb, asking whether service of citation was still required or if the requirement had been waived. Morgan informed Kolb that the commission would insist on service. Finally, the record includes a copy of the citation issued by the Travis County District Clerk on March 18. The citation was served on March 24. The record confirms that the commission received a copy of the petition on the day that it was filed. Moreover, once Kolb was informed that service of citation would not be waived, the commission was served with citation in less than a month. The court holds that the pleadings and evidence included in this record do not establish as a matter of law that Gutierrez failed to exercise diligence in procuring the issuance and service of citation. OPINION:Smith, J.; Smith, Patterson and Pemberton, JJ.

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