Civil Procedure Rule 21a allows a party to add three (3) days to any prescribed response period when service of the initial document is accomplished by mail or fax.  But not necessarily, according to the El Paso Court of Appeals–at least not when another method of service is also used.

In Amaya v. Enriquez, Amaya filed her expert report in her medical malpractice suit against Dr. Enriquez.  Amaya first served the report on counsel for Enriquez by fax.  Later that day Amaya also served the report on counsel for Enriquez by hand-delivery.  Taking advantage of his statutory right to object to Amaya’s report, Dr. Enriquez filed a motion to dismiss, objecting to the report.  Dr. Enriquez’s objection was filed more than the 21 days allowed for by statute.   He relied upon Civil Procedure Rule 21a to argue that he was entitled to an additional 3 days to his time period because Amaya had served the report on him by fax.

The court of appeals rejected Dr. Enriquez’s argument, reasoning that the 3-day extension is provided only in connection with mail service and fax service and since Dr. Enriquez had also been served by hand-delivery, the court concluded "there is no logical reason to give the party an additional three days."   The court then remanded the case to the trial court.  The court’s opinion may be found at this link.

It is unclear whether Dr. Enriquez may have argued that he should be exempt from this judicially-crafted rule given that it was a case of first impression or whether he argued that the court of appeals should have chosen the longer period for response over the shorter to ensure the  "just, fair, equitable and impartial adjudication of rights of litigants" protected by Civil Procedure Rule 1.