Texas Attorney General Opinion: DM-3 Page: 2 of 6
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Honorable John Whitmire - Page 2
referred to it and reports findings of fact, conclusions of law, and recommendations as to
costs to the commissioner within sixty days of the referral or at a later date agreed to by the
parties. Id. 64.006(d).
Chapter 64 does not purport to abolish the right of seed performance disputants to
obtain redress in court. Section 64.002(a) rather establishes arbitration as a "prerequisite
to the exercise of the purchaser's right to maintain a legal action." Applicable limitation
periods are tolled until 11 days after the arbitration board's report is filed with the
commissioner of agriculture. Id. 64.002(b), (d). Section 64.004 permits the arbitration
report to be introduced at subsequent litigation and allows the court to give such weight to
the matters in the report as it deems advisable.
The "open courts" provision of article I, section 13, of the state constitution-has been
considered by the Texas Supreme Court in numerous recent opinions. See, e.g Moreno v.
Sterling Drug. Inc., 787 S.W.2d 348 (Tex. 1990) two year statute of limitations on wrongful
death action not in violation of open courts provision); Lucas v. United States, 757 S.W.2d
687 (Tex. 1988) (statutory cap on medical malpractice damages violated provision); LeCrov
v, Hanlon, 713 S.W.2d 335 (Tex. 1986) (statutory provision for portion of court clerk filing
fee going to state general revenues violated provision); Neagle v. Nelson, 685 S.W.2d 11
(Tex. 1985) (application of two-year statute of limitations on health care liability which cut
off cause of action before injured party had reasonable opportunity to discover injury
violated provision); Nelson v, Kmsen, 678 S.W.2d 918 (Tex. 1984) (application of statute of
limitations to cut off wrongful birth action before parents could have known son had
disease violated provision); Sax v. Votteler, 648 S.W.2d 661 (Tex. 1983) (statute removing
tolling of statute of limitations on medical malpractice actions for minors violated
provision); see Linzer, Why Bother With State Bills of Rights? 68 TEx. L. REv. 1573, 1592-97
(1990). The Sax majority set out the test for an open courts violation as follows:
First, it must be shown that the litigant has a cognizable common law
cause of action that is being restricted. Second, the litfgant must show
that the restriction is unreasonable or arbitrary when balanced against
the purpose and basis of the statute.
Sa at 666.
The majority opinions in Moreno 1990, Lucas in 1988, and LeCroy in 1986 have
utilized the Sa. test in determining the validity of statutes under the open courts provision,
at 355, 690, and 341 respectively. But see Lucas at 716-17 (Chief Justice Phillips' dissenting
opinion) (Sa. test "has resulted in an almost exclusive focus on 'the extent to which thep. 11
(DM-3)
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Texas. Attorney-General's Office. Texas Attorney General Opinion: DM-3, text, February 21, 1991; (https://texashistory.unt.edu/ark:/67531/metapth273809/m1/2/: accessed May 2, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu; crediting UNT Libraries Government Documents Department.