Texas State University v. Hannah R. Tanner

Supreme Court of Texas
══════════
No. 22-0291
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Texas State University,
Petitioner,
v.

Hannah R. Tanner,
Respondent

═══════════════════════════════════════
On Petition for Review from the
Court of Appeals for the Third District of Texas
═══════════════════════════════════════

Argued November 29, 2023

JUSTICE YOUNG delivered the opinion of the Court.

A plaintiff timely brings suit by filing an original petition and
serving the defendant with process before the statute of limitations
expires. Hannah Tanner satisfied the first requirement with only a week
to spare, but she did not serve Texas State University until several years
after limitations had run. Under this Court’s precedent, however, late
service of process can relate back to the date the petition was filed and
thus be considered timely. This relation-back opportunity is available
only if the plaintiff shows that she was diligent in attempting service
from the time limitations expired until proper service was finally achieved.
The University contends that Tanner cannot establish her
diligence in service and that her lawsuit against it is therefore barred
by limitations. Defendants typically raise limitations as an affirmative
defense that, if proven, will lead to a take-nothing judgment on the
merits. The University, however, claims that Tanner’s suit should be
dismissed for lack of jurisdiction before any merits proceedings even
commence. Dismissal is the proper disposition, it says, because the
University is a governmental entity, and in Texas, plaintiffs bear a
jurisdictional duty to discharge all “[s]tatutory prerequisites to a suit”
against governmental entities. See Tex. Gov’t Code § 311.034. The
University argues that service of process is such a prerequisite and that
Tanner did not satisfy it.
We must therefore decide whether a plea to the jurisdiction is a
proper vehicle for the University to challenge the timeliness of Tanner’s
service. We conclude that it is. As this Court has held, § 311.034 requires
that a suit against a governmental entity be brought before the limitations
period expires. Timely service of process is part of timely bringing suit.
Tanner’s diligence in attempting service during the years following the
expiration of limitations would conclusively establish that her lawsuit
was timely, which would defeat the University’s limitations objection.
Because jurisdiction depends on bringing suit within limitations, and
because the statute of limitations requires timely service, the University
properly filed a plea to the jurisdiction.
We decline, however, to determine whether the district court
properly granted the plea. The court of appeals did not reach that
question because it concluded that untimely service does not pose a

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jurisdictional issue that a plea to the jurisdiction can resolve. The
University’s alternative motion for summary judgment relied on the same
arguments about timeliness, but the court of appeals held, for procedural
reasons, that the motion was not part of the appeal. Rather than resolve
the timeliness of Tanner’s suit in the first instance, we reverse the court
of appeals’ judgment and remand the case for that court to do so.
I
The relevant facts are largely undisputed, and we view them in
the light most favorable to Tanner, the nonmovant. Tanner was injured
on October 4, 2014, when she was thrown from a golf cart on the Texas
State University campus. Dakota Scott, a friend of Tanner’s and a
University employee, had been driving the golf cart within the scope of
his employment. Invoking the Texas Tort Claims Act, Tanner sued the
University, the Texas State University System, and Scott. She filed suit
on September 29, 2016—less than a week before the two-year limitations
period for personal-injury actions was set to expire. See Tex. Civ. Prac.
& Rem. Code § 16.003(a).
Shortly thereafter—on October 4—Tanner served the System.
Her petition expressly states that she did not request service on the
University or Scott. Later that month, the System filed an answer and
a plea to the jurisdiction. In late November, the System disclosed in its
interrogatory responses to Tanner that it “is a separate entity and
governmental unit from each of its component institutions” and that
Scott had “never been employed by the Texas State University System.”
Nearly two years later, on September 18, 2018, Tanner served Scott—
but she still did not serve the University. On December 3, 2018, the

3
district court granted the System’s plea to the jurisdiction. Tanner did
not appeal that ruling.
On May 20, 2020—five-and-a-half years after the injury and
three-and-a-half years after limitations had run—Tanner finally served
the University. The University answered and asserted the affirmative
defense that Tanner’s claims were “barred by the two-year Statute of
Limitations, pursuant to Section 16.003 of the Texas Civil Practice and
Remedies Code.” On October 2, 2020, the University filed a plea to the
jurisdiction and an alternative motion for summary judgment, alleging
that Tanner failed to use diligence in effecting service on the University
so long after limitations had expired. The University argued that
Tanner’s untimely service meant that she had failed to satisfy a statutory
prerequisite to suit, which deprived the trial court of subject-matter
jurisdiction under § 311.034 of the Government Code. In the alternative,
the University argued that Tanner’s “cause of action should be dismissed
in its entirety as a matter of law by summary judgment as [the
University’s] defense of limitations has been conclusively established.”
Tanner responded that the plea should be denied. She argued first
that service comes after filing suit and thus is not jurisdictional. She then
contended that the suit against Scott was in substance a suit against the
University; she reasoned that if the suit against Scott was timely (and for
purposes of this appeal, we assume that it was), then limitations could
not bar the suit against the University. Next, she argued that Scott and
the University were represented by the same counsel, so the failure to
serve the University caused no prejudice, or at least that the common
representation presents a fact issue about her diligence. Finally, she

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claimed that the University’s delay in substituting itself for Scott under
§ 101.106(f) of the Tort Claims Act would deny Tanner her right to a
trial if the suit against the University can be dismissed. The trial court
granted the University’s plea to the jurisdiction without ruling on the
summary-judgment motion. Because of several severance orders, this
case comes to us with the University as the only defendant in this suit.
The Third Court of Appeals reversed. 644 S.W.3d 747 (Tex. App.—
Austin 2022). It principally relied on this Court’s decision in Prairie View
A&M University v. Chatha, 381 S.W.3d 500 (Tex. 2012), which explains
how to determine whether a requirement counts as a “[s]tatutory
prerequisite[] to a suit” under § 311.034. As the court of appeals put it,
Chatha directs courts to conduct this inquiry “by using a three-prong
test,” which the court recounted as follows:
First, “to fall within the ambit of section 311.034, a
prerequisite must be found in the relevant statutory
language.” “Second, the prerequisite must be a
requirement.” Third, “the term ‘pre’ indicates the
requirement must be met before the lawsuit is filed.”
644 S.W.3d at 751 (citations omitted) (quoting Chatha, 381 S.W.3d at 512).
According to the court of appeals, the “diligent-service requirement”
fails all three “prongs.” It found “the first two prongs of the Chatha test”
unsatisfied because the diligence requirement “ ‘is not found in the
relevant statutory language’ of section 16.003(a) and it is not a
‘requirement’ of that statute.” Id. at 752 (quoting Chatha, 381 S.W.3d
at 512). Indeed, the court of appeals observed, “the text of the personal-
injury statute of limitations in section 16.003(a) neither references nor
requires diligent service,” which the court found unsurprising given that
any role for diligence is “a creation of the judiciary.” Id. Nor can the third

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prong be satisfied, the court held, because a “prerequisite . . . is to be
complied with prior to filing suit.” Id. (emphasis added) (quoting Chatha,
381 S.W.3d at 514–15). Diligence in service necessarily measures
actions that follow rather than precede filing, so the court concluded that
diligence could not be a statutory “prerequisite” to suit. Id.
The court of appeals therefore held that untimely service does not
implicate jurisdiction under § 311.034, which in turn means that
governmental entities cannot challenge untimely service through a plea
to the jurisdiction. Id. at 752–53. The court therefore reversed the
district court’s judgment. It did not address whether Tanner’s service
was untimely under the University’s alternative motion for summary
judgment. That motion, the court concluded, had yet to be ruled on by
the district court and thus was not part of the appeal. Id. at 753 n.2.
The University filed a petition for review, which we granted.
II
We disagree with the court of appeals’ conclusion.
A
First, the court analyzed the wrong question. There is no
freestanding “diligent-service requirement”—there is only a requirement
of timely service. Diligence in attempting service prevents the running
of limitations for as long as a plaintiff truly labors to achieve service of
process. “If service is diligently effected after limitations has expired, the
date of service will relate back to the date of filing.” Proulx v. Wells, 235
S.W.3d 213, 215 (Tex. 2007); accord Ashley v. Hawkins, 293 S.W.3d 175,
179 (Tex. 2009). Diligence for its own sake, in other words, is immaterial.
Rather, exercising diligence is merely a means to the end of establishing

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timely service, the absence of which can doom a plaintiff’s claim.
As the court of appeals correctly noted, the diligence gloss on the
service requirement came from the judiciary. Timely filing a lawsuit is
often far easier than timely effecting service. Tracking down and serving
individuals sometimes can seem almost impossible. People can hide, be
absent, or just be hard to find. Likewise, effecting service requires steps
that are not within a plaintiff’s control, such as obtaining citation that is
issued by a clerk’s office. It would be unduly harsh and create perverse
incentives to deem a lawsuit untimely if a plaintiff does everything she
can to properly serve a defendant when, purposefully or otherwise, the
defendant or third parties make that service extremely difficult.
The common law thus developed a sensible balance, not to
undermine but to effectuate the service requirement. Treating untimely
service as timely so long as the plaintiff exercises genuine diligence
avoids improper outcomes. It benefits only plaintiffs who are truly
diligent once limitations expires. It offers nothing for a plaintiff who is
dilatory. And while defendants have no duty to make service easy, the
diligence rule avoids rewarding efforts to make service hard. This use of
diligence as a proxy for timeliness has proven sound and become engrafted
into the law of service because it delays limitations when it ought to (when
service is unusually hard, despite earnest efforts) and will not do so when
it ought not to (when timely service would have been simple or is pursued
with indolence).
After all, diligence means truly trying to achieve service—as if one
wanted to do it, not merely had to do it. This principle is familiar in the
law. Cf. Mitchell v. MAP Res., Inc., 649 S.W.3d 180, 189 (Tex. 2022) (“The

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means employed [to provide notice when required to satisfy due process]
must be such as one desirous of actually informing the absentee might
reasonably adopt to accomplish it.” (quoting Mullane v. Cent. Hanover
Bank & Tr. Co., 339 U.S. 306, 315 (1950))). “In assessing diligence,” we
have explained, “the relevant inquiry is whether the plaintiff acted as
an ordinarily prudent person would have acted under the same or
similar circumstances and was diligent up until the time the defendant
was served.” Proulx, 235 S.W.3d at 216. This necessarily fact-intensive
inquiry is “determined by examining the time it took to secure citation,
service, or both, and the type of effort or lack of effort the plaintiff
expended in procuring service.” Id. That some time has elapsed between
service efforts does not alone prove a lack of diligence. But any delay in
service after limitations has run requires an explanation—and not a
conclusory or cursory one, either. “[T]he plaintiff’s explanation of its
service efforts,” therefore, “may demonstrate a lack of due diligence as a
matter of law, as when one or more lapses between service efforts are
unexplained or patently unreasonable.” Id. (citing Gant v. DeLeon, 786
S.W.2d 259, 260 (Tex. 1990)).
The diligence exception is thus available to any plaintiff who sues
any defendant, but its practical value will vary greatly. It is common
sense, for example, that a delay is more likely to occur and be excused
when a plaintiff must serve a peripatetic or concealed defendant. Despite
that plaintiff’s diligence, it may take an extended time to comply with the
formalities of service or, if unavoidable, to obtain a substitute method of
service. Said differently, the easier it is to achieve service, the harder it
will be for a plaintiff to establish diligence during a substantial (or even

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minor) delay.
Central to this entire discussion is that it is always service that
matters. Diligence has no separate role other than to inform the
assessment of service. The court of appeals started on the wrong path
by treating diligence as a distinct “requirement.”
B
Second, despite the court of appeals’ mistaken focus on diligence
as a “requirement,” we would still affirm its judgment if we agreed that
service of process is not a “prerequisite.” Service comes after filing and
alerts the defendant to what has been filed; one could hardly expect it to
be done before filing. But as we explained at the outset, a plaintiff must do
more than file within two years to comply with the statute of limitations.
“Bring suit,” not “file suit,” is the relevant statutory term:
[A] person must bring suit for trespass for injury to the
estate or to the property of another, conversion of personal
property, taking or detaining the personal property of
another, personal injury, forcible entry and detainer, and
forcible detainer not later than two years after the day the
cause of action accrues.
Tex. Civ. Prac. & Rem. Code § 16.003(a) (emphasis added).
As the court of appeals noted, Chatha’s “third prong” included the
phrase “before the lawsuit is filed.” 644 S.W.3d at 751–52 (emphasis
added) (quoting and applying Chatha, 381 S.W.3d at 512). That phrase
was not inaccurate, but it was incomplete; an event that occurs before
filing also occurs before service, of course, and thus before suit is
“brought.” The requirement at issue in Chatha (filing an administrative
complaint within 180 days of an allegedly unlawful employment practice)
preceded both, so nothing turned on any distinction between “bringing”

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and “filing.” 381 S.W.3d at 503. This case, by contrast, implicates that
distinction, and so we clarify that the statute’s use of “bring suit” is the
touchstone of our analysis. Chatha did not purport to replace the
statutory text or supplant the existing distinction between “bringing”
and “filing.”
We explained that distinction, for example, in Proulx—another
case arising in the context of § 16.003—as follows:
A suit for personal injuries must be brought within two
years from the time the cause of action accrues. But a timely
filed suit will not interrupt the running of limitations unless
the plaintiff exercises due diligence in the issuance and
service of citation.
235 S.W.3d at 215 (emphasis added) (citation omitted). In other words,
to “bring suit” is a term of art reflecting the traditional requirements to
satisfy a statute of limitations: filing the petition and achieving service
of process. Timeliness for just one will not do. Thus, while service
follows filing, both are prerequisites to “bringing” the suit. The suit is
not “brought,” and the statute of limitations is not satisfied, until the
plaintiff achieves both steps.
C
Even though service is a “prerequisite” to bringing suit, the court
of appeals’ judgment would still be correct if service is not the kind of
prerequisite that falls within § 311.034’s scope. As the statute states,
as Chatha confirms, and as the court of appeals correctly held, § 311.034
applies only to “[s]tatutory prerequisites to a suit.” Prerequisites not
mandated by a statute are not jurisdictional (at least, not under
§ 311.034). We cannot agree, however, that service falls outside that
category.

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This Court has at least twice observed that statutes of limitations
impose a jurisdictional requirement for suits against governmental
entities. In Chatha, we said that when a statutory prerequisite to suit is
not met, “whether administrative (such as filing a charge of discrimination)
or procedural (such as timely filing a lawsuit),” the suit may be properly
dismissed for lack of jurisdiction. 381 S.W.3d at 515. True, as we noted
above, “timely filing a lawsuit” (or “bringing” one) was not at issue in
Chatha. But even if the phrase in Chatha were dicta, our holding in City
of Madisonville v. Sims, 620 S.W.3d 375 (Tex. 2020), confirms its accuracy.
The plaintiff there had filed a Whistleblower Act claim against the City
of Madisonville and its police department. Id. at 377. The City filed a
plea to the jurisdiction claiming that the suit, filed after the Act’s ninety-
day deadline, was barred by limitations. Id. at 378. The trial court
granted the plea, but the court of appeals reversed and held that the filing
deadline was not jurisdictional. Id. We reversed and dismissed the case
for lack of jurisdiction, holding that the deadline was jurisdictional under
§ 311.034. Id. at 380. Citing Chatha, we concluded that the plaintiff’s
failure to timely file his lawsuit constituted failure to satisfy a statutory
prerequisite to suit and that, because the City was a governmental entity,
it was entitled to dismissal for lack of jurisdiction under § 311.034. Id.
Timely service, as we have explained, is no less mandated by the statute
of limitations than timely filing.
Tanner seeks to evade City of Madisonville (and that case’s
embrace of Chatha) by making a novel argument: that the only statute
that counts for § 311.034’s purposes is the very statute that waives
immunity. The Whistleblower Act both waived immunity and imposed

11
the ninety-day deadline, she notes, whereas here, the Tort Claims Act
waives immunity, and a separate section of the Civil Practice and
Remedies Code imposes the two-year limitations period. City of
Madisonville, she says, is therefore distinguishable.
The court of appeals did not embrace Tanner’s novel contention.
We disagree with that court’s conclusion that § 16.003 did not create
statutory prerequisites to a Tort Claims Act suit, but we agree with the
premise of its analysis, which was that § 16.003 could do so. We reject
Tanner’s argument that would confine § 311.034’s scope to statutory
prerequisites that are codified in the same statute as the principal waiver
of immunity.
Section 311.034’s text contains no such restriction, and neither
Chatha nor City of Madisonville turned on where the legislature chose to
codify a given statutory requirement. Without limitation, § 311.034
provides that “[s]tatutory prerequisites to a suit, including the provision
of notice, are jurisdictional requirements in all suits against a
governmental entity.” In Chatha, we noted that “it is of obvious mention
that in order to fall within the ambit of section 311.034, a prerequisite
must be found in the relevant statutory language.” 381 S.W.3d at 511–12.
“Relevant statutory language” means the text of a statute—any statute—
that dictates a pre-suit requirement that applies to a given case. We find
no ambiguity in § 311.034’s text, but even if we did, “we generally resolve
ambiguities by retaining immunity.” Wichita Falls State Hosp. v. Taylor,
106 S.W.3d 692, 697 (Tex. 2003).
Multiple statutes or statutory provisions, after all, may operate in
tandem to determine the scope of the waiver of immunity, which in turn

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will determine whether courts have jurisdiction over a claim against a
governmental entity. See, e.g., Rattray v. City of Brownsville, 662 S.W.3d
860, 865–66 (Tex. 2023) (examining the Tort Claims Act’s waiver of
immunity in connection with several subsections that withdraw that
waiver); Gulf Coast Ctr. v. Curry, 658 S.W.3d 281, 287 (Tex. 2022)
(“[I]ncorporating [an]other statute’s additional limitations of liability
‘modifies a governmental unit’s waiver of immunity from suit.’ ” (quoting
Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 225 (Tex.
2004))). The whole point of § 311.034 is to require courts to treat any
statutory prerequisite to suit—whether in the statute that directly
waives immunity or in any other statute—as jurisdictional. As always,
plaintiffs cannot invoke the judicial power unless they comply with every
jurisdictional requirement.
Tanner’s fallback argument is that “[w]hile technically a statute,
the statute of limitations has never been viewed as jurisdictional and has
always been treated as an affirmative defense to a common law claim.”1
That statement is correct as far as it goes. In ordinary litigation, the
statute of limitations does not implicate jurisdiction. That principle also

1 Tanner argues that courts should not treat statutory requirements

applicable to common-law claims against the government (like statutes of
limitations) as “statutory prerequisites,” in contrast with the same requirements
for claims created by a statute. We see no material distinction. No claim against
a governmental entity can be authorized only by the common law because, “to
waive immunity, consent to suit must ordinarily be found in a constitutional
provision or legislative enactment.” Wichita Falls State Hosp. v. Taylor, 106
S.W.3d 692, 695 (Tex. 2003). Immunity is not waived at all without such an
enactment. Thus, even for her personal-injury claim based on common-law
concepts and reliant on common-law doctrines, it is by force of statute, not the
common law alone, that she may bring suit against the government. See id. at
696.

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applied to litigation involving the government—until the enactment of
§ 311.034. That provision is what transforms any ordinary statute of
limitations into a jurisdictional bar, whether codified directly in the Tort
Claims Act or elsewhere. Statutes of limitations are always far more
than “technically a statute”—they are the statutes delineating the time
within which any plaintiff’s claim may be pressed, and they now bear
jurisdictional force in suits against governmental entities.
* * *
We accordingly hold that the statute of limitations, including the
requirement of timely service, is jurisdictional in suits against
governmental entities. The University’s plea to the jurisdiction was
therefore a proper vehicle to address Tanner’s alleged failure to exercise
diligence in serving the University.
III
Having established that the University’s plea to the jurisdiction
properly raised the issue of limitations, we turn to whether the University
established its entitlement to dismissal as a matter of law.
Tanner argues that the University has failed to meet its burden to
conclusively prove that she did not satisfy the statute of limitations. This
contention misplaces the burden. The University has shown that Tanner
did not provide service for 43 months after limitations expired, so the
burden has shifted to Tanner to establish timely service in some other
way, such as by proving her diligence. See Proulx, 235 S.W.3d at 216.
Diligence requires that she show that she “acted as an ordinarily prudent
person would have acted under the same or similar circumstances and
was diligent up until the time the defendant was served.” Id.

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Diligence normally raises a fact question, but a plaintiff’s
explanation may show a lack of diligence as a matter of law “when one or
more lapses between service efforts are unexplained or patently
unreasonable.” Id. To avoid dismissal (or, in a non-jurisdictional context,
a take-nothing judgment), a plaintiff must “present evidence regarding
the efforts that were made to serve the defendant, and to explain every
lapse in effort or period of delay.” Id. (emphasis added).
Tanner, however, has identified no disputed fact issue related to
her exercise of diligence or anything else in connection with service—that
is to say, she has identified no factual question that would be fit for
presentation to a jury. Tanner’s briefing, instead, makes three arguments
to explain her delay, but each is susceptible only to legal analysis. Tanner
cannot establish her diligence in service under any of these arguments,
but the first of them nonetheless warrants remand to the court of appeals
for resolution of a potentially dispositive legal question. We address her
contentions in turn.
A
Tanner first claims that service on Scott effectively was service on
the University because of Scott’s motion to substitute the University
under § 101.106(f) of the Tort Claims Act.2 Tanner invokes University of
Texas Health Science Center at San Antonio v. Bailey, 332 S.W.3d 395
(Tex. 2011). That case involved the substitution of a governmental unit
after limitations had run when, unlike in this case, the Baileys did not
know that the individual defendant that they had sued, Sanders, was a

2 The additional potentially dispositive issue of whether service on Scott

was timely is not before us.

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government employee. Id. at 401. Sanders waited until seven weeks
after limitations had passed and then announced that his employer
(another state university) should have been the defendant the whole
time. Id. at 397. The employer then invoked limitations. Id. at 399.
Tanner contends that Bailey resolves the case for her because we
held that the suit was not barred in that case. Under the Act, the Baileys’
suit had been a suit against the employer all along. That is, “the Baileys’
suit against Sanders was, in all respects other than name, a suit against
the [state university].” Id. at 401–02 (emphasis added). We therefore
held that the statute of limitations could not be a defense to the plaintiff’s
claims against the substituted employer. Id. We decline to resolve in the
first instance whether or how the principles of Bailey affect this case.
Unlike in Bailey, for example, Tanner named the University from the
beginning and so had no need to later name a correct party, as
§ 101.106(f) provides and as the Baileys did. Tanner could have served
every defendant at the time of filing but, purportedly for strategic
reasons, chose not to do so.
Tanner’s contention that, aside from any such distinctions, her
service on Scott satisfies her obligation to serve the University presents
a question of law. If she is correct that § 101.106 excuses her from
separately serving the University, then her diligence in serving Scott, not
the University, is the relevant inquiry. The parties in this Court,
understandably enough, have paid far less attention to these details than
to the issues that have been our focus in Part II of this opinion. We
therefore decline to address this ground in the first instance.

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B
Tanner next, and relatedly, claims that “[t]here was no delay in
serving [the University] because [the University] had actual notice of
Tanner’s claim when the incident happened on October 4, 2014 and at
least by the time Scott was timely served” in September 2018. This
argument, while similar to her first, is mistaken. It confuses service with
the Tort Claims Act’s distinct notice requirement. See Tex. Civ. Prac. &
Rem. Code § 101.101. Tanner asserts that “[i]f actual notice can satisfy a
statutory prerequisite for ‘notice’, then surely it also satisfies a statutory
prerequisite for diligent service.” The contrary is true. Notice is a
separate issue from whether service of process was performed at all, much
less whether service was timely. Plaintiffs must separately satisfy both.
For example, in Worsdale v. City of Killeen, which Tanner cites,
we held that “the undisputed evidence here conclusively establishes the
governmental unit had actual notice it may be responsible for the deaths
of two motorists whose vehicle struck an unbarricaded dirt mound
completely blocking an unlit country road.” 578 S.W.3d 57, 59 (Tex.
2019). Indeed—it was enough to satisfy § 101.101’s notice requirement.
But actual notice does not fulfill the service requirement. Receiving
a petition through means other than formal service, we have held, is an
insufficient substitute for service. “Absent service, waiver, or citation,
mere knowledge of a pending suit does not place any duty on a defendant
to act.” Wilson v. Dunn, 800 S.W.2d 833, 837 (Tex. 1990) (emphasis
added). In Wilson, we expressly distinguished between receipt and proper
service. Id. If Tanner can establish that her service on Scott constituted
service on the University (which is Tanner’s first ground), then she does

17
not need to conflate notice and service (her second ground). But if her
service on Scott does not amount to serving the University, any notice to
the University is insufficient as a matter of law to satisfy her duty to
timely effect service.
C
Tanner finally claims that the University is at fault for not moving
to dismiss Scott earlier pursuant to § 101.106, and that this delay excuses
her own delay. This theory provides no basis to treat Tanner’s late service
as timely. By Tanner’s own choice, the University had not even been
served at this point, which meant that the University had no duty to act
at all. Wilson, 800 S.W.2d at 837. The only way the University would
have had such a duty was if the service on Scott constituted actual service
on the University—which, again, is Tanner’s first argument. Like her
second theory, in other words, this one collapses into her first.
Tanner’s argument that the same attorney represented Scott and
the University is similarly unavailing. Common representation alone
does not impose any duty on an unserved party. And even if this excuse
were creditable, it could not explain the approximately two-year delay
between serving Scott (2018) and serving the University (2020). Scott
answered Tanner’s suit in October 2018 and informed her that the
University was his employer at the time of the accident. This excuse does
not show diligence in service but indeed establishes the opposite.
* * *
We therefore hold that Tanner has not established, and cannot
establish, diligence in service on the University. But as we stated in
Part II.A, diligence is not an independent requirement—it is only a

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means to establish timely service. Tanner’s first ground to defend
timeliness does not rely on diligence in serving the University. Rather,
it presents an alternative legal basis to deem satisfied any obligation to
serve the University at all. That theory is underdeveloped in this Court.
We leave it to the court of appeals, following supplemental briefing from
the parties if that court deems it necessary, to determine in the first
instance if Tanner’s service on Scott excuses her from the duty to serve
the University, diligently or otherwise. The court of appeals’ judgment
is reversed, and the case is remanded to that court.

Evan A. Young
Justice

OPINION DELIVERED: May 3, 2024

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