Texas Judiciary Online - HTML Opinion

Although not cited by = either=20 party in this case, or binding on this court, an arguably more = relevant=20 decision = is that=20 in In re S.G., 677 N.E.2d 920, 930 (Ill. 1997). = There, the=20 State challenged a statute, requiring dismissal of a petition for=20 adjudication of wardship if the adjudicatory hearing was not = completed=20 within 90 days of service, as encroaching on the court=3Ds power to=20 decide the best interest of minors. See id. at 923,=20 927. The court concluded that the statute did not violate = the=20 separation of powers principle because it represented a = legislative=20 expression of public policy requiring the expeditious resolution = of abuse=20 and neglect cases, provided a reasonable time for the exercise of = judicial=20 duties, and did not deprive the courts of the power to adjudicate = a=20 child=3Ds best=20 interest, but only required that power to be exercised in a manner = that=20 protects the rights of all parties. See id. at=20 930.

In the=20 present case, the expert report requirement in section 74.351 = imposes a=20 threshold to prevent frivolous or premature lawsuits from = proceeding until=20 a good-faith effort has been made to demonstrate that at least one = expert=20 believes that a breach of the applicable standard of care caused = the=20 claimed injury. See Murphy v. Russell, 167 S.W.3d = 835, 838=20 (Tex. 2005); Walker v. Gutierrez, 111 S.W.3d 56, 66 (Tex.=20 2003). The=20 courts retain the judicial power to determine whether a timely = filed=20 report is adequate in this regard and to render a decision=20 accordingly. See Tex. Civ. Prac. & Rem. Code Ann. = ' 74.351(l), = (r)(6). =20 Everett does not contend that the applicable time limits for = submitting=20 reports are unreasonable or that courts are otherwise unduly = constrained=20 by the statutory requirements in deciding whether an adequate = report has=20 been filed. Because Everett has therefore not overcome the=20 presumption that section 74.351 is constitutional, we overrule her = issue=20 and affirm the judgment of the trial court.

/s/ =20 Richard H. Edelman

Senior Justice

Judgment rendered and = Majority=20 and Concurring Opinions filed November 29, 2007.

Panel consists of = Justices=20 Fowler, Frost, and Edelman.^* = (Frost,=20 J., concurring).

^{^[1]}^{&=
nbsp; =20}See Tex. Civ. Prac. & Rem. Code Ann. = ' 74.351 (Vernon 2005 & Supp. = 2007). =20 Although the facts on which Everett=3Ds claims were based are alleged to have = occurred=20 prior to the effective date of section 74.351, the differences = between=20 section 74.351 and its predecessor statute, art. 4590i = section=20 13.01, are not material to our disposition of the constitutional=20 challenge. Therefore, our opinion will refer to section = 74.351, as=20 the parties=3D briefs have, for = expedience.

^{^[2]}^{&=
nbsp; =20}See = Tex. Const. art. II, ' 1. Everett does not argue that = she timely=20 filed an adequate report or that the trial court improperly = applied the=20 statutory requirements of section 74.351. Nor does she = otherwise=20 challenge the procedural or factual basis for the dismissal other = than the=20 constitutionality of the statute.

^{^[3]}^{&=
nbsp; =20}However, footnote 4 = of=20 appellees=3D brief contradicts this contention by=20 acknowledging that Everett=3Ds separation of powers argument was=20 preserved.

^{^[4]}^{&=
nbsp; =20}See Romero v.=20 State, 893 S.W.2d 550, = 551 (Tex.=20 App.CTexarkana 1994), = aff=3Dd, 927=20 S.W.2d 632, 635B36 (Tex. 1996) (addressing, but = rejecting,=20 Romero=3Ds contention, raised for the first time = in a=20 motion to modify the judgment, that the settlement and dismissal = of the=20 case should be reversed because the settlement violated her = constitutional=20 rights).

^{^[5]}^{&=
nbsp; =20}See In re = Commitment of=20 Fisher, 164 S.W.3d 637, = 645 (Tex.=20 2005); Walker v. Gutierrez, 111 S.W.3d 56, 66 (Tex.=20 2003).

^{^[6]}^{&=
nbsp; =20}City of Houston v. = Clark, 197 S.W.3d 314, = 320 (Tex.=20 2006); FM Props. Operating Co. v. City of Austin, 22 S.W.3d = 868,=20 873 (Tex. 2000).

^{^[7]}^{&=
nbsp; =20}Everett=20 contends that the statute, by its terms, always operates=20 unconstitutionally, i.e., there is no set of circumstances = in which=20 it will be valid, rather than that it is unconstitutional as = applied in=20 this particular case. See=20 generally, Tex. Mun. League Intergovernmental Risk Pool v. Tex.=20 Workers=3D Comp. Comm=3Dn, 74=20 S.W.3d 377, 381 (Tex. 2002); Tex. = Workers'=20 Comp. Comm'n v. Garcia, 893 S.W.2d 504, 518 n.16 (Tex.=20 1995); Santikos v.=20 State, 836=20 S.W.2d 631, 633 (Tex. Crim. App. 1992).

^{^[8]}^{&=
nbsp; =20}State v.=20 Williams, 938 S.W.2d = 456, 459=20 (Tex. Crim. App. 1997); Armadillo Bail Bonds v. State, 802 = S.W.2d=20 237, 240 (Tex. Crim. App. 1990).

^{^[9]}^{&=
nbsp; =20}The concurring = opinion takes=20 issue with our application in this civil case of Separation of = Powers=20 principles that have been stated in Court of Criminal Appeals = opinions,=20 but have not been addressed by the Texas Supreme Court. = However,=20 because Wilson-Everett expressly relies on these principles, such = that=20 none of the Texas Supreme Court opinions bear on her contentions, = we=20 cannot address those contentions without either applying the = principles=20 she relies upon from the Court of Criminal Appeals opinions or,=20 alternatively, concluding that they have no application in a civil = case. Because the Texas Supreme Court has not indicated any=20 disagreement with these principles, or decided any cases = inconsistently=20 with them, we have no basis to conclude that they do not apply in = a civil=20 case. In addition, it is not apparent how our high courts = could=20 conclude that there is a difference in the amount or degree of = Separation=20 of Powers that is constitutionally required between our respective = branches of government when viewed in a civil versus criminal=20 context.

^{^[10]}^{&=
nbsp; =20}Armadillo Bail=20 Bonds, 802 S.W.2d at=20 240B41.

^{^[11]}^{&=
nbsp; =20}However, the statute = has=20 survived other challenges to its constitutionality. = See =20 Morrison v. Chan, 699 S.W.2d 205 (Tex. 1985) (rejecting due = process=20 and open courts challenge). The predecessor to section = 74.351, art.=20 4590i section 13.01, has also withstood constitutional = challenges,=20 including a Separation of Powers challenge, albeit to other = provisions in=20 the statute than the one challenged in this case. See = Knie v.=20 Piskun, 23 S.W.3d 455 (Tex. App. BAmarillo 2000, pet. denied) (overruling = a=20 Separation of Powers challenge to section 13.01(p) and (q));=20 Thoyakulathu v. Brennan, 192 S.W.3d 849, 856 (Tex. = App.CTexarkana 2006, no pet.) (denying due = process=20 challenges); Strom v. Mem=3Dl Hermann Hosp. Sys., 110 S.W.3d 216, 227 (Tex. = App.CHouston [1st Dist.] 2003, pet. denied) = (denying=20 due process, equal protection, and right to jury trial = challenges);=20 Villa v. Hargrove, 110 S.W.3d 74, 81 (Tex. App.CSan Antonio 2003, pet. denied) (denying = due=20 process and equal protection challenges); Mocega v. Bradford = Urquhart,=20 M.D., 79 S.W.3d 61, 64 (Tex. App.CHouston [14th Dist.] 2002, pet. denied) = (denying=20 open courts challenge).

^{^[12]}^{&=
nbsp; =20}See DeLuna v. St.=20 Elizabeth=3Ds Hosp., 588 N.E.2d 1139, = 1143B46 (Ill. 1992) (statute allowing = dismissal of=20 medical malpractice action if plaintiff failed to submit expert = report did=20 not violate Separation of Powers by improperly delegating a = judicial power=20 to the health care professional providing the report); = Mahoney v.=20 Doerhoff Surgical Servs., 807 S.W.2d 503, 505B06, 510 (Mo. 1991) = (same).

^*^{&=
nbsp; =20}Senior Justice = Richard H.=20 Edelman sitting by=20 assignment.