Mercedes Wilson-Everett v. Christus St. Joseph, Jeff Webster, Edith Irby Jones, LaKisha Hose, Mariamme Kurian, Laura Fortin, Sophie Meyers, Nedra Thomas and Laura Flint--Appeal from Probate Court No 1 of Harris County

Affirmed and Majority and Concurring Opinions filed November 29, 2007

Affirmed and Majority and Concurring Opinions filed November 29, 2007.

In The

Fourteenth Court of Appeals

____________

NO. 14-05-00999-CV

____________

MERCEDES WILSON-EVERETT, INDIVIDUALLY

AND AS REPRESENTATIVE OF THE ESTATE

OF RUBY J. WILSON, DECEASED, Appellant

V.

CHRISTUS ST. JOSEPH HOSPITAL, JEFF WEBSTER, EDITH IRBY

JONES, LAKISHA HOSE, MARIAMME KURIAN, LAURA FORTIN,

SOPHIE MEYERS, NEDRA THOMAS AND LAURA FLINT, Appellees

On Appeal from the Probate Court No. 1

Harris County, Texas

Trial Court Cause No. 346,170-401

C O N C U R R I N G O P I N I O N

In this healthcare-liability case, this court correctly affirms the trial court=s ruling that section 74.351 of the Texas Civil Practice and Remedies Code does not violate the Separation of Powers provision of the Texas Constitution. However, in this civil case, the court should avoid stating in dicta the methodology of the Texas Court of Criminal Appeals, which may be different from that of the Texas Supreme Court.

Appellant Mercedes Wilson-Everett argues that section 74.351 of the Texas Civil Practice and Remedies Code, on its face, violates the Separation of Powers provision of the Texas Constitution because, by dictating to courts exactly when and how to render a judgment with prejudice if a plaintiff does not provide an adequate expert medical report within the prescribed time period, this statute interferes with the judiciary=s constitutional power to decide when and how to render judgments. See Tex. Const. art. II, ' 1.

The Texas Constitution provides for three governmental departments (legislative, executive, and judicial) and states that Ano person, or collection of persons, being of one of these departments, shall exercise any power properly attached to either of the others, except in the instances herein expressly permitted.@ See Tex. Const. art. II, ' 1. The separation of powers doctrine prohibits one branch of government from exercising a power inherently belonging to another branch. Gen. Servs. Com=n v. Little-Tex Insulation Co., Inc., 39 S.W.3d 591, 600 (Tex. 2001). Under the Texas Constitution, the power to make laws and set public policy is vested in the legislature. See Tex. Const. art. III, ' 1; FM Props. Operating Co. v. City of Austin, 22 S.W.3d 868, 873 (Tex. 2000). A constitutional problem arises under the Separation of Powers provision of the Texas Constitution when the executive or legislative branch interferes with the functioning of the judicial process in a field constitutionally committed to the control of the courts. Gen. Servs. Com=n, 39 S.W.3d at 600.

The parties have not cited, and research has not revealed, any Texas appellate court decision as to whether section 74.351 or any similar statute violates the Separation of Powers provision of the Texas Constitution. Section 74.351 imposes certain requirements on the maintenance of healthcare-liability claims. By setting the public policy of Texas and enacting this law, the legislature did not exercise a power inherently or historically belonging to the judiciary, and the legislature did not interfere with the functioning of the judicial process in a field constitutionally committed to the control of the courts. See id. Because Wilson-Everett therefore has not overcome the presumption that section 74.351 is constitutional, it is correct to overrule her issue and affirm the trial court=s judgment.

Wilson-Everett relies primarily on cases from the Texas Court of Criminal Appeals. The court correctly concludes that these cases are not on point. Nevertheless, the court goes further and identifies in an obiter dictum a list of five judicial powers contained in various cases from the Court of Criminal Appeals. See ante at p. 4; Armadillo Bail Bonds v. State, 802 S.W.2d 237, 239B40 (Tex. Crim. App. 1990) (concluding that, in analyzing an alleged violation of the Separation of Powers provision, Athe core of [] judicial power embraces the power (1) to hear evidence; (2) to decide the issues of fact raised by the pleadings; (3) to decide the relevant questions of law; (4) to enter a final judgment on the facts and the law; and (5) to execute the final judgment or sentence@). The Texas Supreme Court and the Court of Criminal Appeals sometimes disagree on the application of the same text. See, e.g., Boyd v. State, 971 S.W.2d 603, 606 (Tex. App.CDallas 1998, no pet.) (noting that Texas Supreme Court implies a motion to extend time to file notice of appeal under certain circumstances but that Texas Court of Criminal Appeals, in applying the same appellate rule, does not permit courts in criminal appeals to imply a motion for extension of time). The Texas Supreme Court may not disagree with the analysis used by the Court of Criminal Appeals; however, to date, when given the opportunity to adopt this analysis, the Texas Supreme Court has not done so. See Gen. Servs. Com=n, 39 S.W.3d at 600 (analyzing alleged violation of Separation of Powers provision without referring to any list of judicial powers). Because the case under review is a civil appeal, this court is bound by the decisions of the Texas Supreme Court rather than those of the Court of Criminal Appeals. See Deutsch v. Hoover, Bax & Slovacek, L.L.P., 97 S.W.3d 179, 195 (Tex. App.CHouston [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 Supreme Court has and overrule the issue under that analysis.

/s/ Kem Thompson Frost

Justice

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

Panel consists of Justices Fowler, Frost, and Edelman.* (Edelman, Senior Justice, majority.)

* Senior Justice Richard H. Edelman sitting by assignment.