§ 18.001.Affidavit Concerning Cost and Necessity of Services

One of the most-used provisions in Texas civil practice, because it removes the need to call a witness to prove medical and repair bills.

Unless a controverting affidavit is served, an affidavit stating that the amount charged for a service was reasonable at the time and place provided and that the service was necessary is sufficient evidence to support a finding to that effect. The section applies to civil actions only, and not to an action on a sworn account.

The limit is stated in the same subsection and it is absolute. The affidavit is not evidence of and does not support a finding of the causation element. It proves the bill was reasonable and the treatment necessary; it proves nothing about whether the defendant caused the need for it. A plaintiff who relies on this section alone has proved the cost of an injury, not its source.

The affidavit's requirements are three: taken before an officer authorized to administer oaths; made by the person who provided the service or the person in charge of records showing the service and charge; and including an itemized statement.

The deadlines were rewritten to run from the answer rather than from trial. The offering party must serve the affidavit by the earlier of 90 days after the defendant files an answer, or the party's expert designation deadline under a court order or the rules. Where a provider first renders services after the answer, subsection (d-1) drops the 90-day date and leaves the expert designation deadlines.

The counteraffidavit gets 120 days after the answer, or the controverting party's expert designation deadline, whichever is earlier — and where the affidavit came in under the later-services rule, the counteraffidavit is due on the later of 30 days after service or those designation deadlines.

The counteraffidavit has its own qualifications. It must give reasonable notice of the basis on which the party intends to controvert the claim, be taken before a person authorized to administer oaths, and be made by someone qualified by knowledge, skill, experience, training, education, or other expertise to testify against the matters in the initial affidavit. And it may not be used to controvert causation — the same bar that applies to the affidavit.

Notice is filed with the clerk; the affidavit itself is not. Subsection (d-2) requires written notice of service, and says the affidavit need not be filed before trial except as the rules of evidence provide.

Two escape valves. Where services continue past a deadline, an affidavit may be supplemented up to 60 days before trial and a counteraffidavit up to 30 days before trial. And under subsection (i), any deadline may be altered by agreement of all parties or with leave of court.