Affirmed =
and Majority=20
and Concurring Opinions filed November 29, 2007.
In The
Fourteenth=20
Court of Appeals
____________
NO. 14-05-00999-CV
____________
MERCEDES=20
WILSON-EVERETT, =
INDIVIDUALLY
AND AS =
REPRESENTATIVE OF THE=20
ESTATE
OF RUBY J. WILSON, =
DECEASED,=20
Appellant
V.
CHRISTUS ST.=20
JOSEPH HOSPITAL, JEFF WEBSTER, EDITH IRBY
JONES, LAKISHA =
HOSE, MARIAMME=20
KURIAN, LAURA FORTIN,
SOPHIE MEYERS, =
NEDRA THOMAS=20
AND LAURA FLINT, =
Appellees
On Appeal from the =
Probate Court No. 1
Harris=20
County, =
Texas
Trial Court Cause =
No. 346,170-401
C O N C U R R I N=20
G O P I N I O N
In this=20
healthcare-liability case, this court correctly affirms the trial=20
court=3Ds ruling=20
that section 74.351 of the Texas Civil Practice and Remedies =
Code=20
does not violate the Separation of Powers provision of the Texas=20
Constitution. However, in this civil case, the court should =
avoid=20
stating in dicta the methodology of the Texas Court of Criminal =
Appeals,=20
which may be different from that of the Texas Supreme =
Court.
Appellant=20
Mercedes Wilson-Everett argues that section =
74.351 of=20
the Texas Civil Practice and Remedies Code, on its face, violates =
the=20
Separation of Powers provision of the Texas Constitution because, =
by=20
dictating to courts exactly when and how to render a judgment with =
prejudice if a plaintiff does not provide an adequate expert =
medical=20
report within the prescribed time period, this statute interferes =
with the=20
judiciary=3Ds=20
constitutional power to decide when and how to render =
judgments. =20
See Tex. Const. =
art.=20
II, ' =
1.
The Texas=20
Constitution provides for three governmental departments =
(legislative,=20
executive, and judicial) and states that Ano person,=20
or collection of persons, being of one of these departments, shall =
exercise any power properly attached to either of the others, =
except in=20
the instances herein expressly permitted.@ =20
See Tex. Const. =
art.=20
II, ' =
1. =20
The separation‑of‑powers doctrine prohibits one branch =
of government from=20
exercising a power inherently belonging to another branch. =
Gen.=20
Servs. Com=3Dn v.=20
Little-Tex Insulation Co., Inc., 39 S.W.3d=20
591, 600 (Tex. 2001). Under the Texas Constitution, the =
power to=20
make laws and set public policy is vested in the =
legislature. =20
See Tex.=20
Const. =
art. III,=20
' =
1; FM=20
Props. Operating Co. v. City of Austin, 22 S.W.3d 868, 873 =
(Tex.=20
2000). A constitutional problem arises under the Separation =
of=20
Powers provision of the Texas Constitution when the executive or=20
legislative branch interferes with the functioning of the judicial =
process=20
in a field constitutionally committed to the control of the =
courts. =20
Gen. Servs. Com=3Dn,=20
39 S.W.3d=20
at 600.
The=20
parties have not cited, and research has not revealed, any Texas =
appellate=20
court decision as to whether section 74.351 or any similar statute =
violates the Separation of Powers provision of the Texas=20
Constitution. Section 74.351 imposes certain requirements on =
the=20
maintenance of healthcare-liability claims. By setting the =
public=20
policy of Texas and enacting this law, the legislature did not =
exercise a=20
power inherently or historically belonging to the judiciary, and =
the=20
legislature did not interfere with the functioning of the judicial =
process=20
in a field constitutionally committed to the control of the =
courts. See=20
id. Because Wilson-Everett therefore has not overcome the =
presumption=20
that section 74.351 is constitutional, it is correct to overrule =
her issue=20
and affirm the=20
trial court=3Ds judgment.=20
Wilson-Everett relies primarily on =
cases from=20
the Texas Court of Criminal Appeals. The court correctly =
concludes=20
that these cases are not on point. Nevertheless, the court =
goes=20
further and identifies in an obiter dictum a list of five judicial =
powers=20
contained in various cases from the Court of Criminal =
Appeals. =20
See ante at p. 4; Armadillo Bail Bonds v. State, 802 =
S.W.2d=20
237, 239B40 (Tex. Crim. App. =
1990)=20
(concluding that, in analyzing an alleged violation of the =
Separation of=20
Powers provision, Athe core of [] =
judicial power=20
embraces the power (1) to hear evidence; (2) to decide the issues =
of fact=20
raised by the pleadings; (3) to decide the relevant questions of =
law; (4)=20
to enter a final judgment on the facts and the law; and (5) to =
execute the=20
final judgment or sentence@). The Texas =
Supreme=20
Court and the Court of Criminal Appeals sometimes disagree on the=20
application of the same text. See, e.g., Boyd v. =
State, 971=20
S.W.2d 603, 606 (Tex. App.CDallas 1998, no pet.) =
(noting=20
that Texas Supreme Court implies a motion to extend time to file =
notice of=20
appeal under certain circumstances but that Texas Court of =
Criminal=20
Appeals, in applying the same appellate rule, does not permit =
courts in=20
criminal appeals to imply a motion for extension of time). =
The Texas=20
Supreme Court may not disagree with the analysis used by the Court =
of=20
Criminal Appeals; however, to date, when given the opportunity to =
adopt=20
this analysis, the Texas Supreme Court has not done so. =
See=20
Gen.=20
Servs. Com=3Dn,=20
39 S.W.3d=20
at 600 =
(analyzing=20
alleged violation of Separation of Powers provision =
without=20
referring to any list of judicial powers). Because the case =
under=20
review is a civil appeal, this court is bound by the decisions of =
the=20
Texas Supreme Court rather than those of the Court of Criminal=20
Appeals. See Deutsch v. Hoover, Bax & Slovacek, =
L.L.P.,=20
97 S.W.3d 179, 195 (Tex. App.CHouston=20
[14th Dist.] 2002, no pet.); Boyd, 971 S.W.2d at 606. =
Therefore, the better course would be to analyze this issue as the =
Texas=20
Supreme Court has and overrule the issue under that =
analysis. =20
/s/ Kem=20
Thompson Frost
Justice
Judgment rendered and =
Majority=20
and Concurring Opinions filed November 29, 2007.
Panel consists of =
Justices=20
Fowler, Frost, and Edelman. =20
(Edelman, Senior Justice, majority.)
&=
nbsp; =20
Senior Justice =
Richard H.=20
Edelman sitting by=20
assignment. |