News & Insights

Who Can Offer A Certificate Of Merit Against A Design Professional In Texas

In Barrientos v. Jacobs Engineering Group, Inc., No. 13-20-00092-CV, 2021 WL 3411869 (Tex. App. Aug. 5, 2021), the Court of Appeals of Texas, Corpus Christi-Edinburg held that Texas law mandates that a design professional expert offering opinions against another design professional must be licensed or registered in Texas.

On March 4, 2019, Barrientos filed a lawsuit for personal injuries against Jacobs Engineering Group, Inc. (“Jacobs”) and CVS Pharmacy, Inc. d/b/a CVS Pharmacy #08962 (“CVS”).  Barrientos alleged injuries occurred due to him hitting a raised concrete lip when entering the CVS parking lot on his bike, causing him to flip over suddenly and without warning.   Barrientos broke his wrist and elbow, and sustained a calf injury. 

Barrientos filed a certificate of merit affidavit (the “Affidavit”) executed by a licensed engineer with his petition.  However, Barrientos’s engineer was licensed in Colorado, not Texas. 

The Affidavit opined that Jacobs was negligent with regard to the design, creation, and marking of the CVS parking lot.  Jacobs denied the allegation, and filed a Motion to Dismiss on the basis that Barrientos failed to furnish a valid certificate of merit from an engineer licensed in Texas as required by Texas law.  

Barrientos subsequently filed a Motion for Leave to Amend the Certificate of Merit, citing a Texas statute that provided a party additional time to file the certificate of merit if the period of limitations will expire within 10 days of the date of filing.  The statute provides that in such cases, the plaintiff shall have 30 days after the filing of the complaint to supplement the pleadings with the affidavit. The trial court denied this Motion for Leave and granted Jacobs’ Motion to Dismiss.

The Court of Appeals of Texas upheld the trial court’s rulings based upon the language of the statute that requires the certificate of merit be signed by an engineer licensed in Texas.  In TRW Engineers, Inc. v. Hussion Street Buildings, LLC, 608 S.W.3d 317 (Tx. App. 2020), the Court of Appeals of Texas, Houston put it this way, “[a]bsent a properly filed certificate of merit required by statute governing actions against licensed professionals, professionals have the right to avoid litigation entirely.”

These cases make it clear that only a design professional licensed within the State of Texas can give a Certificate of Merit against another design professional in Texas.