On April 28, 2017, the Texas Supreme Court held that trial courts have discretion whether to dismiss a lawsuit against a licensed professional with or without prejudice when a plaintiff fails to file an expert affidavit (“Certificate of Merit”) contemporaneously with its original petition. The Supreme Court rejected a “good cause” requirement for failing to file the Certificate, holding that the guiding principle in applying this discretion is only whether the lawsuit has merit. This ruling is important because defendants in many cases have argued—and one intermediate appellate court had held—that failing to file a Certificate of Merit with an original petition or filing an inadequate Certificate of Merit requires a trial court to dismiss the lawsuit with prejudice, regardless of the underlying merits of the claims. The Supreme Court’s opinion removes this procedural “gotcha.”

Section 15.002(a) of the Civil Practice and Remedies Code requires a plaintiff to file a Certificate of Merit contemporaneously with any lawsuit or arbitration that alleges damages arising out of professional services by licensed or registered professionals (e.g., engineers, architects, etc.). Section 15.002(e) mandates dismissal for failure to file the Certificate of Merit and states that the dismissal “may” be with prejudice. The statute does not explain when dismissal with prejudice is required or otherwise provide guidance for how a court should decide whether dismissal with prejudice is warranted.