OPINION CONCURRING IN THE DENIAL OF EN BANC CONSIDERATION
Most of the arguments raised in the opinion dissenting from the denial of en banc consideration have already been addressed in the Court’s opinion of December 19, 2008, and I refer the reader to the Court’s discussion of those issues in that opinion. See Poland v. Ott, 278 S.W.3d 39 (Tex.App.-Houston [1st Dist.] 2008, no pet. h.). I write briefly to address two specific arguments raised in the dissenting opinion.
First, the dissenting opinion opines that the term “serve” in former section 74.351(a)1 means only “to ‘make legal delivery of (a notice or process)’ and to ‘present (a person) with a notice or process as required by law.’ ” Poland, 278 S.W.3d at 59 (Jennings, J., dissenting) (quoting Black’s Law DictionaRY 1372 (7th ed.1999)). However, as explained in the Court’s opinion, that definition would in effect take us back to the language of former section 74.351(a)’s predecessor, which does not apply to this case. Former section 74.351(a)’s predecessor required only that the claimant “furnish” the expert report. See Act of May 5, 1995, 74th Leg., R.S., ch. 140, § 1, 1995 Tex. Gen. Laws 985, 986, repealed and recodified an amended by Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 10.01, 2003 Tex. Gen. Laws 847, 875. Of course, as the Herrera and Gutierrez courts concluded, we should presume that in changing the requirement from “furnish” to “serve,” the Legislature intended to require something more than simply the provision of the expert report by any means whatsoever. See Univ. of Tex. Health Sci. Ctr. at Houston v. Gutierrez, 237 S.W.3d 869, 872 (Tex.App.-Houston [1st Dist.] 2007, pet. denied); Herrera v. Seton Northwest Hosp., 212 S.W.3d 452, 458-59 (Tex.App.-Austin 2006, no pet.).
Second, the dissenting opinion reasons:
Nothing in former section 74.351(a) precludes a claimant from serving an implicated physician or health care provider with her expert report and curriculum vitae along with an original petitionf2] or prior to the actual filing of such a *54claim in court in an effort to reach a settlement. When a claimant does serve her expert report on an implicated physician or health care provider along with the filing of her health care liability claims prior to filing those claims in court, then a defendant certainly can object to the report not later than 21 days after being served with the petition.
Poland, 278 S.W.3d at 60 (Jennings, J., dissenting) (emphasis added). The problem with this reasoning is that the plain language of former section 74.351(a) does not allow it. Former section 74.351(a) provides:
§ 74.351. Expert Report
(a) In a health care liability claim, a claimant shall, not later than the 120th day after the date the claim was filed, serve on each party or the party’s attorney one or more expert reports, with a curriculum vitae of each expert listed in the report for each physician or health care provider against whom a liability claim is asserted. The date for serving the report may be extended by written agreement of the affected parties. Each defendant physician or health care provider whose conduct is implicated in a report must file and serve any objection to the sufficiency of the report not later than the 21st day after the date it was served, failing which all objections are waived.
See Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 10.01, 2003 Tex. Gen. Laws 847, 875 (emphasis added), amended by Act of May 18, 2005, 79th Leg., R.S., ch. 635, § 1, 2005 Tex. Gen. Laws 1590, 1590 (current version at Tex. Civ. Pbac. & Rem.Code Ann. § 74.351(a)). By its plain language, former section 74.351(a) thus ties the deadline for the defendant’s filing and serving its objection to the expert report to the date of service of the report on the defendant, not to the date that the defendant is served with the petition that alleges a claim against him. See id. Accordingly, even if former section 74.351(a) allowed the provision of an expert report to a defendant before the filing of a claim against him to suffice as “service” (which it does not), the defendant would have to “file and serve” his objections to that report not later than 21 days after that report was “served” on him presuit. The potential ambiguity arising from this predicament, as well as the fact that no cause exists presuit in which to file anything, are two of the reasons that the Court has held in this case that section 74.351(a) does not contemplate presuit provision of an expert report to suffice as “serv[ice]” of the report.
With these comments, I concur in the decision of the Court to deny en banc consideration in this case.
. See Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 10.01, 2003 Tex. Gen. Laws 847, 875 [hereinafter "former Tex. Civ. Prac. & Rem.Code Ann. § 74.351”], amended by Act of May 18, 2005, 79th Leg., R.S., ch. 635, § 1, 2005 Tex. Gen. Laws 1590, 1590 (current version at Tex. Civ. Prac. & Rem.Code Ann. § 74.351 (a) (Vernon Supp.2008)).
. I do not construe our holding in this case to preclude the service of an expert report on the same day that the petition asserting the claim against that defendant is filed in court. The point of the relevant holding is simply that a claimant cannot serve an expert report on a defendant before a case against that defendant exists. A plaintiff will sometimes serve certain documents (e.g., requests for disclosure or other discovery requests) on a defendant, along with a copy of the petition, on the same day that the plaintiff instigates the suit against that defendant, and the served document will still be considered part of the proceedings if the document references the lawsuit. See In re Arden, No. 08-03-00269-CV, 2004 WL 576064, at *3 (Tex.App.-El Paso Mar.24, 2004, orig. proceeding) (memo.op.) (noting that plaintiff had served discovery requests on defendant along with service of original petition); see also Tex.R. Civ. P. 21 (requiring that pleadings, pleas, motions, and applications filed in court be served on all other parties "at the same time”). I see no reason why this same construct would not apply to the service of an expert report under former section 74.351(a) when that service occurs on the same day as the filing of a pleading alleging a claim against the same defendant; however, the facts of this case did not present this issue for the Court to determine.