Richard Hebert and Janet Hebert v. Timothy E. Hopkins, M.D., and Shannon Clinic

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-11-00419-CV
Richard Hebert and Janet Hebert, Appellants
v.
Timothy E. Hopkins, M.D., and Shannon Clinic, Appellees
FROM THE DISTRICT COURT OF TOM GREEN COUNTY, 391ST JUDICIAL DISTRICT
NO. D-10-0285-C, HONORABLE THOMAS J. GOSSETT, JUDGE PRESIDING
OPINION
Richard Hebert and his wife, Janet Hebert, appeal from a district court judgment
dismissing, for failure to serve the expert report required by chapter 74 of the civil practice and
remedies code, a health care liability claim they asserted against Timothy Hopkins, M.D., and
Shannon Clinic.1 The Heberts bring two issues, urging respectively that (1) the district court abused
its discretion in concluding that they failed to serve an expert report complying with chapter 74;
and (2) chapter 74’s expert-report requirement violates various constitutional protections. We will
overrule these contentions and affirm the district court’s judgment.
1
The parties have advised us that Richard Hebert died shortly after the Heberts perfected
their appeal. As contemplated by rule 7.1 of the rules of appellate procedure, the parties have
proceeded on appeal as if all parties are alive, and so have we. See Tex. R. App. P. 7.1(a)(1).
BACKGROUND
The Heberts filed the underlying suit alleging that Dr. Hopkins, a neurosurgeon,
committed professional negligence in performing spinal surgery on Richard Hebert at Shannon
in September 2008 after Richard broke his neck in a fall. Specifically, they pled that Richard had
presented with a fracture of the cervical 6 (C6) vertebra that was “very unstable” due to a preexisting
condition known as ankylosing spondylitis that had self-fused his spinal vertebrae on either side of
the fracture; that the standard of care in such circumstances had required Hopkins to perform “an
anterior and posterior fusion surgery” to ensure stability; that Hopkins had performed “an anterior
fusion with plates and screws at C4-C7 but took no appropriate surgical measures to stabilize the
fusion posteriorly;” and that the anterior-only fusion had subsequently “failed as one or more of
the screws had pulled out causing the vertebral segments to move and compress the spinal cord
at C4-C7,” rendering Richard a quadriparetic (i.e., paralyzed in all four limbs). The Heberts asserted
that Shannon was vicariously liable for Hopkins’s negligence by virtue of Hopkins’s status as a
“partner or member” of the clinic.
Within 120 days thereafter, in an attempt to comply with chapter 74’s expert-report
requirement, the Heberts served a report from P. Merrill White, M.D., along with Dr. White’s
curriculum vitae.2 Hopkins and Shannon timely objected to the sufficiency of Dr. White’s report,
2
See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a) (West 2011) (“In a health care liability
claim, a claimant shall, not later than the 120th day after the date the original petition 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.”).
In the absence of material intervening substantive changes, we have cited the current version
of chapter 74 for convenience.
2
asserting that the report had failed to adequately set forth, and was “conclusory” with respect to
the underlying factual bases of, opinions regarding the applicable standard of care for Hebert in light
of his underlying medical conditions, the manner in which Hopkins’s care had failed to meet
that standard, or a causal linkage to the fusion failure and Richard’s injuries.3 By now, the 120-day
period for serving an “expert report” had expired, so appellees also moved to dismiss the Heberts’
suit with prejudice and sought a mandatory award of attorney’s fees.4 Both sides submitted briefing
on the merits of appellees’ objections. Following a hearing at which the parties presented argument,
the district court sustained appellees’ objections but granted the Heberts a thirty-day extension to
cure any deficiencies.5
Within the extension period, the Heberts served a supplemental report from White.
Contending that White’s supplemental report had failed to cure the deficiencies in his original report,
appellees again moved to dismiss the Heberts’ suit with prejudice.6 The Heberts filed a response
joining issue regarding the sufficiency of the two reports and also asserting that chapter 74’s expert-
3
See id. (“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.”).
4
See id. § 74.351(b) (“If, as to a defendant physician or health care provider, an expert report
has not been served within the period specified by Subsection (a), the court, on the motion of the
affected physician or health care provider, shall . . . enter an order that: (1) awards to the affected
physician or health care provider reasonable attorney’s fees and costs of court incurred by the
physician or health care provider; and (2) dismisses the claim with respect to the physician or health
care provider, with prejudice to the refiling of the claim.”); see also id. § 74.351(c) (recognizing that
“an expert report has not been served within the period specified by Subsection (a)” when “elements
of the report are found deficient”).
5
See id. § 74.351(c).
6
See id. § 74.351(b), (c).
3
report requirement violates various protections of the U.S. or Texas constitutions. Following a
hearing, the district court granted appellees’ motion to dismiss. Subsequently, after hearing
evidence, the district court awarded appellees attorney’s fees as required by chapter 74,7 and this
order also served to make the court’s prior dismissal order final. The Heberts then timely perfected
this appeal.
ANALYSIS
Sufficiency of expert reports
In their first issue, the Heberts urge that the district court abused its discretion in
holding that Dr. White’s report, either in its original form or as supplemented, did not represent an
objective good faith effort to comply with the statutory definition of an expert report.
The standards governing the contents of the expert report or reports required by
chapter 74 are well established. Chapter 74 defines an “expert report” as “a fair summary of the
expert’s opinion as of the date of the report regarding applicable standards of care, the manner in
which the care rendered by the physician or health care provider failed to meet the standards, and the
causal relationship between that failure and the injury, harm, or damages claimed.”8 “A court shall
grant a motion challenging the adequacy of an expert report only if it appears to the court, after
hearing, that the report does not represent an objective good faith effort to comply” with this
7
See id. § 74.351(b)(1).
8
See id. § 74.351(r)(6). Chapter 74 also imposes requirements regarding the qualifications
of the “expert” who may prepare an “expert report,” see id. § 74.351(r)(5), but appellees have not
disputed that White meets those standards here.
4
definition of “expert report.”9 To constitute a “good faith effort,” as the Texas Supreme Court
has explained, the report must include the expert’s opinion on “each of the three main elements:
standard of care, breach, and causation,” and must provide enough information to fulfill
two purposes with respect to each element: (1) it must inform the defendant of the specific conduct
the plaintiff has called into question; and (2) it must provide a basis for the trial court to conclude
that the claims have merit. See Jelinek v. Casas, 328 S.W.3d 526, 538-40 & n.9 (Tex. 2010); Bowie
Mem’l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex. 2002) (per curiam); American Transitional Care
Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 878-79 (Tex. 2001). Although these requirements do
not require a plaintiff to marshal all of his or her proof or to present expert testimony in a form that
would be admissible at trial, see Jelinek, 328 S.W.3d at 539-40 & n.9, they do necessitate that “the
expert must explain the basis for his statements to link his conclusions to the facts” and not merely
state conclusions. Id. (quoting Wright, 79 S.W.3d at 52 (quoting Earle v. Ratliff, 998 S.W.2d 882,
890 (Tex. 1999))); see also id. at 539-40 (observing, with respect to the causation element,“the
expert must . . . explain, to a reasonable degree, how and why the breach caused the injury based on
the facts presented”). This is so, in the supreme court’s view, because “‘[a] report that merely states
the expert’s conclusions about the standard or care, breach, and causation’ does not fulfill the
two purposes of a good-faith effort.” Id. at 539 (quoting Palacios, 46 S.W.3d at 879); see also id.
at 540 (expert “must include sufficient detail” regarding how breach caused plaintiff’s injuries “to
allow the trial court to determine if the claim has merit”).
9
Id. § 74.351(l).
5
Importantly, the only information relevant to determining whether an expert report
complies with these requirements is that contained within “the four corners” of the report itself.
Palacios, 46 S.W.3d at 878. Consequently, neither the trial court nor this Court may infer additional
opinions or underlying facts to fill in gaps that the report itself leaves open. See Wright, 79 S.W.3d
at 53; see also Austin Heart, P.A. v. Webb, 228 S.W.3d 276, 279 (Tex. App.—Austin 2007, no pet.)
(this requirement “precludes a court from filling gaps in a report by drawing inferences or guessing
as to what the expert likely meant or intended” (citing Wright, 79 S.W.3d at 53)).
Our standard of review is likewise limited. Chapter 74 imposes a mandatory duty on
a trial court to grant a motion challenging the adequacy of an expert report “if it appears to the court”
that the report does not meet the above-described requirements. See Tex. Civ. Prac. & Rem. Code
Ann. § 74.351(l) (“A court shall grant a motion challenging the adequacy of an expert report only
if it appears to the court . . . that the report does not represent an objective good faith effort to comply
with the definition of an expert report in Subsection (r)(6).”) (emphasis added). Conversely, the
trial court is prohibited from granting such a motion unless such noncompliance “appears to the
court.” Id. (“A court shall grant a motion challenging the adequacy of an expert report only if it
appears to the court . . . .”) (emphasis added). But the linchpin determination that controls which
of these two alternative sets of mandatory duties applies—whether “it appears to the court” that the
report does not comply with the requirements—has been committed to the trial court’s sound
discretion by the Legislature. See Palacios, 46 S.W.3d at 877-78. Consequently, we review the
trial court’s determination for abuse of that discretion. See Wright, 79 S.W.3d at 52 (citing Palacios,
46 S.W.3d at 878).
6
A trial court abuses its discretion when it acts in an arbitrary or unreasonable
manner without reference to any guiding rules or principles. See id. (citing Downer v. Aquamarine
Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985)). “When reviewing matters committed to the
trial court’s discretion, a court of appeals may not substitute its own judgment for the trial court’s
judgment.” Id. (citing Flores v. Fourth Court of Appeals, 777 S.W.2d 38, 41 (Tex. 1989)). We do
not, in other words, examine the contents of Dr. White’s reports and make our own de novo
determination as to whether he has provided sufficient information, with respect to his opinions
regarding standard of care, breach, and causation, to (1) inform appellees of the specific conduct
the Heberts have called into question; and (2) provide a basis for the district court to conclude that
the claims have merit. See Jelinek, 328 S.W.3d at 538-40 & n.9; Wright, 79 S.W.3d at 52; Palacios,
46 S.W.3d at 878-79. Instead, we determine only whether the district court acted arbitrarily,
unreasonably, and without reference to guiding rules and principles in determining that the reports
failed to provide that information. See Wright, 79 S.W.3d at 52; see also Jelinek, 328 S.W.3d at 542
(Jefferson, C.J., dissenting) (“The dividing line between a sufficient and an inadequate report is
impossible to draw precisely. We have said, therefore, that the determination must be made in the
first instance by the trial court, and review of that decision asks not how an appellate court would
have resolved that issue, but instead whether the trial court abused its discretion.”) (citing Jernigan
v. Langley, 195 S.W.3d 91, 93 (Tex. 2006); Walker v. Gutierrez, 111 S.W.3d 56, 63 (Tex. 2003)).
Applying this deferential abuse-of-discretion standard of review, we cannot conclude
that the district court acted arbitrarily, unreasonably, and without guiding rules and principles in
determining that Dr. White’s reports did not supply it sufficient information regarding his opinions
7
concerning standard of care and breach, as they relate to the underlying facts, to enable it to
determine whether the Heberts’ claims had merit.
In his initial report, White summarized medical records reflecting that Richard Hebert
sought treatment at Shannon in the early morning hours of September 7, 2008, following a fall in
which he injured his neck, and that Richard was placed under Hopkins’s care. According to White,
CT scans and other evaluations revealed that Richard had suffered “a trace traumatic subarachnoid
hemorrhage” (i.e., bleeding on the brain) and a “fracture through the superior vertebral body of C6
with a fracture extending through the posterior elements of C5-6.” The injury “was initially managed
in a cervical collar which was changed to a Philadelphia collar and spinal precautions were ordered”
within about five hours. That same evening, White indicated, Hopkins performed a surgical
procedure in which the neurosurgeon fused Richard’s C5-C6 vertebrae and implanted “C4 through
C7 anterior instrumentation”—a plate over or along the front of Richard’s spine, attached by screws
to his bone—to provide stability and support while the fracture healed. On the following day, White
continued, the medical records indicated that Richard had showed signs of recovery progress and
that “[c]ervical collar is discontinued per Dr. Hopkins’[s] order.” But four days later, during the
afternoon of September 12, Richard had a decline in neurological function and subsequent CT scans
“confirm[ed] failure of implant fixation at C6 and C7” and injury to the spinal cord. Although
another neurosurgeon, Dr. Duarte, operated on Richard thereafter to remove the failed anterior
instrumentation and implement a different type of fixation method, Richard ended up with
“increased neurological deficit (quadriparesis).”
The medical records, as summarized by White, additionally reflected that Richard had
a history of “coronary artery disease treated with cardiac stints, Plavix, and aspirin; cerebrovascular
8
accident [(i.e., a stroke)] on two occasions with residual left hand paraesthesias [(tingling or
prickling sensations)] treated with Plavix and aspirin; and hypertension,” as well as “ankylosing
spondylitis,” a degenerative condition of the spine that causes both brittleness of bones and self-
fusion of vertebrae.
Although he did not indicate whether or how Richard’s other medical conditions
impacted the standard of care, White emphasized his opinion that a patient with ankylosing
spondylitis warranted special precautions when performing surgery to address spinal fracture:
In the surgical treatment of cervical spine fractures complicating ankylosing
spondylitis, the prudent spine surgeon must recognize the unstable nature of
these fractures. The instability is contributed to by the long level arms cranial and
caudal to the fracture site resulting from the multilevel autofusion and poor bone
quality associated with ankylosing spondylitis. These two factors result in increased
susceptibility to spine fractures as a result of relatively minor trauma, greater
instability, and a greater likelihood of neurologic deficit resulting from a cervical
fracture than found in patients with cervical spine fractures and otherwise normal
spinal anatomy.
The prudent spine surgeon should design a surgical plan of care allowing
decompression of the spinal cord, reduction of the traumatic deformity, and
immediate stabilization of the spinal column to protect the spinal cord and to
facilitate mobilization and nursing care to the patient in the short term and healing
of the spinal fusion in the longer term.
As for the standard of care regarding the specific means by which these objectives should be
achieved, White initially suggested that anterior-only internal instrumentation was inconsistent with
the standard of care and that some form of posterior internal instrumentation, either additionally or
as an alternative to anterior instrumentation, would instead be preferable:
Over the recent years, the debate of the spinal community has been in which
circumstances fusion with posterior only fixation or fusion with anterior and
9
posterior fixation is appropriate. Anterior instrumentation only is predictably
inadequate in a fracture pattern with gross anterior and posterior column instability
such as Mr. Hebert’s. Adequate treatment of Mr. Herbert’s [sic] fracture requires
anterior and posterior instrumentation in order to meet the standard of care.
In Mr. Herbert’s [sic] situation, the standard of care requires fixation stable enough
to allow mobilization of the patient without loss of fixation resulting in increased
neurological deficits. This goal is more likely to be achieved by multilevel posterior
internal fixation in addition to at least single level anterior internal fixation with
fusion at appropriate levels.
However, in the next sentence, within the same paragraph, White acknowledged that “clinical
situations” could arise in which anterior-only instrumentation, coupled with “supplemental
protection” other than posterior implementation, would be consistent with the standard of care:
If the clinical situation in which the surgeon finds himself and the patient allows
only inadequate internal fixation, the surgeon is obligated to protect the patient
supplementing the internal fixation with external bracing and/or activity limitations.
The supplemental protection should continue until the patient can be returned to
the operating room for additional internal fixation or the fracture becomes stable
through healing.
Following these statements regarding standard of care, White turned to whether or
how Hopkins breached an applicable standard. Consistent with the first portion of his explanation
of the standard of care, White began by asserting that Hopkins breached the standard by utilizing
“anterior only plate/screw fixation”:
Dr. Timothy Hopkins’[s] choice of anterior only plate/screw fixation fails to meet
the applicable standard of care. Constrained anterior cervical plates function as
tension band devices and require relative stability of the posterior elements. In
extension these devices resist distraction of the anterior column. These devices do
not effectively resist flexion forces and require stable posterior elements to
limit deformity resulting from flexion forces. In the absence of adequate posterior
stability, anterior plate/screw constructs typically fail in flexion by plate breakage or,
10
as in this case, by screw pullout. Mr. Herbert’s [sic] fracture resulted in significant
instability of both the anterior and posterior elements at the C5-6 level. Anterior only
plate/screw fixation, in this setting, is predictably doomed to failure.
But in the next sentence, White seemed to allude to his previously expressed view that a surgeon
could act within the standard of care by “supplementing” otherwise “inadequate internal fixation”
with some form of “external bracing and/or activity limitations” as an alternative to posterior surgical
fixation:
The prudent spine surgeon must recognize the limitations of the various internal
fixation constructs available and if necessary must compensate for the predictable
weaknesses by adequate external bracing and/or activity limitation.
Then White ended his discussion of breach with the following conclusion:
The standard of care for the surgical treatment of this fracture requires a multilevel
posterior fixation and a fusion in conjunction with anterior fixation and fusion with
or without supplemental external fixation as was ultimately performed by Dr. Duarte
on September 12, 2008.
White then offered the following opinions as to causation, now referencing perceived
inadequacies in internal and external fixation without elaborating as to the nature or identity of any
of the latter category:
The failure to choose the internal and external fixation construct capable of
providing stability to allow mobilization of the patient, prevent spinal
displacement, and protect the spinal cord is the proximate cause of Mr. Herbert’s
[sic] increased neurologic deficit (quadriparesis). This occurred as a result of the
constrained anterior plate/screw construct’s predictable inability to neutralize flexion
forces resulting in screw pullout at C6 and C7 levels followed by displacement of the
spinal column through the C5-6 fracture/allograft site with subsequent spinal cord
injury and deterioration of neurologic function.
11
Among their objections to the sufficiency of White’s initial report, appellees urged
that the report did not represent an objective good faith attempt to comply with chapter 74’s
requirements—i.e., that it discussed the standard of care, breach, and causation with sufficient
specificity to (1) inform them of the conduct called into question and (2) provide a basis for the
district court to determine that the claims have merit—because it was internally inconsistent as to
the standard of care that applied and did not address whether or not Hopkins complied with the
standard of care through the use of the “external bracing and/or activity limitation” White had
contemplated. And these asserted deficiencies, appellees further suggested, in turn undermined any
factual bases underlying White’s assertions that the standard of care either required Hopkins’s use
of anterior-only internal fixation or was breached by his choice not to use posterior interior fixation.
In arguing that the district court abused its discretion in sustaining appellees’
objections, the Heberts emphasize the portions of White’s initial report focusing on the relative
merits of anterior versus posterior internal fixation. But the district court was within its discretion
also to consider White’s recognition of an apparent exception, qualification, or limitation to his
broader criticisms of anterior fixation: “the clinical situation in which the surgeon finds himself and
the patient” may “allow[] only inadequate internal fixation,” in which case the standard of care could
be met by “supplementing the internal fixation with external bracing and/or activity limitations.”
Along with White’s recognition of this aspect of the standard of care, the court also could have
reasonably considered that White never elaborated on the nature or type of “clinical situation” that
would “allow[] only inadequate internal fixation” or whether such a situation did or did not exist in
regard to Richard, a patient who, as White acknowledged in his report, had a history of coronary
artery disease, two strokes, and hypertension, not to mention bleeding on the brain from his fall. The
12
court likewise could reasonably have viewed White’s references to “external bracing” or “activity
limitations” as an alternative to further internal fixation as begging the question as to whether
the unspecified “spinal precautions” Hopkins had ordered, the cervical collar Richard wore
following surgery, or other “external bracing” or “activity limitations” Hopkins imposed had or had
not satisfied the standard of care.
In short, we cannot conclude that the district court acted arbitrarily, unreasonably, or
without regard to guiding principles in determining that White’s initial report fell short of describing
the applicable standard or care or breach thereof, as applicable to the underlying facts, with sufficient
specificity to provide the court a basis to determine that White’s claims have merit. See Jelinek,
328 S.W.3d at 538-40 & n.9; Wright, 79 S.W.3d at 52; Palacios, 46 S.W.3d at 878-79. And in the
face of such deficiencies regarding standard of care and breach, the district court would have
acted within its discretion in determining that any assertions by White to the effect that anterior-only
internal fixation breaches the standard of care or that only posterior internal fixation can suffice lack
an underlying factual basis—i.e., are “conclusory”—and fail to satisfy chapter 74. See Wright,
79 S.W.3d at 52 (“the expert must explain the basis of his statements to link his conclusions to the
facts” (quoting Earle, 998 S.W.2d at 890)).
The Heberts urge us to indulge a “fair reading” that White’s opinions regarding
unspecified “clinical situations” refers to a surgeon who is attempting to perform a combined anterior
and posterior procedure but gets interrupted by “surgical complications such as delays or blood loss,”
and that no such complications arose here. The dissent similarly relies on inferences or implications
that such “extraordinary circumstances” were not present. But the problem with these arguments
is that White never actually says any of this in his initial report, and the established rule is that the
13
report must stand or fall on the contents within its “four corners.” Palacios, 46 S.W.3d at 878. This
requirement, again, “precludes a court from filling gaps in a report by drawing inferences or guessing
as to what the expert likely meant or intended.” Austin Heart, P.A., 228 S.W.3d at 279 (citing
Wright, 79 S.W.3d at 53).
Nor did the district court abuse its discretion in holding that such deficiencies
were not cured by White’s supplemental report. In his supplement, although White reiterates and
emphasizes at length his conclusions and assertions regarding anterior versus posterior fixation
generally, nowhere does he address the deficiencies concerning the standard of care and breach that
the district court could have perceived in his initial report.
We overrule the Heberts’ first issue.
Constitutional claims
In their second issue, the Heberts bring forward constitutional challenges to
chapter 74’s expert-report requirement. While not appearing to quarrel with the general concept
that the Legislature can validly impose some form of threshold report requirement for asserting
health care liability claims or other types of civil claims, the Heberts complain about three basic
features of chapter 74’s expert-report requirement: (1) the fixed deadline of 120 days to serve an
expert report, subject to a single 30-day extension; (2) the requirements focusing judicial analysis
of a report’s sufficiency solely on the “four corners” of the report and prohibiting courts from
considering extrinsic evidence of a claim’s merits; and (3) the mandatory requirement that courts
dismiss health care liability claims with prejudice for failing to serve an adequate expert report
and also award attorney’s fees. The Heberts contend that these mechanisms unfairly “single out”
14
health care liability claimants for unconstitutional “disparate treatment,” deprive courts of judicial
discretion in violation of the separation-of-powers protections of the Texas Constitution, and deprive
claimants of access to the courts in violation of due-process or open-courts protections.10
When reviewing the constitutionality of a statute, we begin with a presumption that
it is constitutional. Herrera v. Seton Nw. Hosp., 212 S.W.3d 452, 460-61 (Tex. App.—Austin 2006,
no pet.) (citing Walker, 111 S.W.3d at 66); see also Tex. Gov’t Code Ann. § 311.021(1)
(West 2005). The wisdom or expediency of the law is the Legislature’s prerogative, not ours.
Smith v. Davis, 426 S.W.2d 827, 831 (Tex. 1968). We presume that the Legislature has not acted
unreasonably or arbitrarily. Sax v. Votteler, 648 S.W.2d 661, 664 (Tex. 1983) (quoting Davis,
426 S.W.2d at 831). The party challenging a statute’s constitutionality has the burden of proving
that the statute fails to meet constitutional requirements. Walker, 111 S.W.3d at 66. A party must
show that a statute is unconstitutional either on its face or as applied to that party. Texas Workers’
Comp. Comm’n v. Garcia, 893 S.W.2d 504, 518 n.16 (Tex. 1995); see also City of Corpus Christi
v. Public Util. Comm’n, 51 S.W.3d 231, 240-41 (Tex. 2001) (per curiam) (Owen, J., concurring).
To sustain a facial challenge, the party must show that the statute, by its terms, always
10
The Heberts acknowledge that Richard’s death during the pendency of this appeal may
have terminated his open-courts claim. “[W]rongful-death and survival claimants cannot establish
an open-courts violation because they ‘have no common law right to bring either.’” Horizon/CMS
Healthcare Corp. v. Auld, 34 S.W.3d 887, 903 (Tex. 2000) (quoting Bala v. Maxwell, 909 S.W.2d
889, 893 (Tex. 1995)). The Texas Supreme Court also has declined to rule on an open-courts
argument in a similar situation when the claimant died during the pendency of the appeal. Kallam
v. Boyd, 232 S.W.3d 774, 776 (Tex. 2007) (per curiam). While we have similar reservations, we will
address the Heberts’ open-courts argument to the extent its substance implicates due-process and
due-course-of-law protections they have also raised. See, e.g., Bogar v. Esparza, 257 S.W.3d 354,
370 n.6 (Tex. App.—Austin 2008, no pet.) (noting open-court protections not directly implicated in
statutory wrongful-death and survivor action before conducting similar due-process analysis).
15
operates unconstitutionally. Garcia, 893 S.W.2d at 528 n.16. To sustain an as-applied challenge,
the party must show that the statute is unconstitutional when applied to that particular person or
set of facts. Id.
We note at the outset that the Heberts face an uphill battle because every court
that has considered similar challenges to chapter 74’s expert-report requirement, including this
Court, has rejected them. See, e.g., Stockton v. Offenbach, 336 S.W.3d 610, 618 (Tex. 2011)
(denying open-courts challenge); Hightower v. Baylor Univ. Med. Ctr., 348 S.W.3d 512, 521-22
(Tex. App.—Dallas 2011, pet. denied) (rejecting special-law, vagueness, due-course-of-law, and
separation-of-powers challenges); Broxterman v. Carson, 309 S.W.3d 154, 159 (Tex. App.—Dallas
2010, pet. denied) (rejecting due-process challenge); Gulf Coast Med. Ctr., LLC v. Temple, No. 13-
09-00350-CV, 2010 WL 196972, at *6 (Tex. App.—Corpus Christi Jan. 21, 2010, no pet.)
(mem. op.) (rejecting due-process and due-course-of-law challenges); Bogar v. Esparza, 257 S.W.3d
354, 372-73 (Tex. App.—Austin 2008, no pet.) (same); Wilson-Everett v. Christus St. Joseph,
242 S.W.3d 799, 802-04 (Tex. App.—Houston [14th Dist.] 2007, pet. denied) (rejecting separation-
of-powers challenge); Ledesma v. Shashoua, No. 03-05-00454-CV, 2007 WL 2214650, at *9
(Tex. App.—Austin Aug. 3, 2007, pet. denied) (mem. op.) (rejecting due-process and open-courts
challenges); Thoyakulathu v. Brennan, 192 S.W.3d 849, 855-56 (Tex. App.—Texarkana 2006,
no pet.) (due process does not require “exceptions [to the expert-report requirement] that would
encompass any conceivable complication in order to pass constitutional muster”); Herrera,
212 S.W.3d at 461-62 (rejecting equal-protection, due-process, due-course-of-law, and open-
courts challenges). Texas courts also uniformly rejected constitutional challenges to an expert-report
requirement under chapter 74’s predecessor statute, article 4590i. See, e.g., Strom v. Memorial
16
Hermann Hosp. Sys., 110 S.W.3d 216, 227 (Tex. App.—Houston [1st Dist.] 2003, pet. denied)
(rejecting due-process, equal-protection, and jury-trial challenges); Villa v. Hargrove, 110 S.W.3d
74, 81 (Tex. App.—San Antonio 2003, pet. denied) (rejecting due-process and equal-protection
challenges); Walker, 111 S.W.3d at 66 (rejecting due-process challenge); Perry v. Stanley,
83 S.W.3d 819, 825 (Tex. App.—Texarkana 2003, no pet.) (rejecting open-courts challenge);
Mocega v. Urquhart, 79 S.W.3d 61, 64 (Tex. App.—Houston [14th Dist.] 2002, pet. denied) (same);
Gill v. Russo, 39 S.W.3d 717, 718-19 (Tex. App.—Houston [1st Dist.] 2001, pet. denied) (same);
Knie v. Piskun, 23 S.W.3d 455, 467 (Tex. App—Amarillo 2000, pet. denied) (rejecting equal-
protection, due-process, open-courts and free-speech challenges); Schorp v. Baptist Mem’l Health
Sys., 5 S.W.3d 727, 736-38 (Tex. App.—San Antonio 1999, no pet.) (rejecting due-process, open-
courts, and jury-trial challenges).11
The Heberts acknowledge the constitutional validity of the expert-requirement in
chapter 74’s predecessor statute, article 4590i, but attempt to distinguish it as “less draconian.” See
Act of May 5, 1995, 74th Leg., R.S., ch. 140, § 1, sec. 13.01, 1995 Tex. Gen. Laws 985, 985-88,
repealed and recodified as amended by Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 10.01,
sec. 74.351, 2003 Tex. Gen. Laws 847, 875-77 (amended 2005) (current version at Tex. Civ. Prac.
& Rem. Code Ann. § 74.351). They emphasize differences in the deadlines article 4590i imposed
11
In their reply brief, the Heberts attempt to distinguish some of these cases on the basis that
they involved “a complete failure to file an expert report,” instead of “addressing the legislature’s
restriction placed on the courts in deciding the issue” of a report’s sufficiency. However,
Texas courts, including this Court, have rejected constitutional challenges where, as here, an expert
report was served, but found deficient. See, e.g., Hightower v. Baylor Univ. Med. Ctr., 348 S.W.3d
512, 520 (Tex. App.—Dallas 2011, pet. denied) (upholding dismissal of deficient reports); Ledesma
v. Shashoua, No. 03-05-00454-CV, 2007 WL 2214650, at *7-8 (Tex. App.—Austin Aug. 3, 2007,
pet. denied) (mem. op.) (same).
17
for serving expert reports and the extent of discretion vested in trial courts to extend deadlines.
Specifically, article 4590i allowed claimants to either serve an expert report within 90 days of filing
suit or file a cost bond. See former art. 4590i, § 13.01(a). An expert report was required within
180 days of suit, though the court could grant a 30-day extension if the failure to serve was not
intentional or the result of conscious indifference, but was the result of an accident or mistake. Id.
§ 13.01(d), (g).
The Heberts also assert that “4590i did not mandate what had to be included in
the contents of the report,” and that “there was no requirements or authorization for the court
to summarily dismiss the case based on the deficiencies in the language of the report.” They also
contend that parties opposing an article 4590i expert report had to “satisfy summary judgment
procedures to secure a dismissal with prejudice.” To the contrary, a court considering the sufficiency
of an expert report under article 4590i, as under chapter 74, was limited to the “four corners” of the
report. See Palacios, 46 S.W.3d at 878. Likewise, if a claimant failed to serve a report, or served
a report that the trial court concluded did not represent a good faith effort to comply with the
statutory definition of expert report, the trial court was required to dismiss the case with prejudice
and award costs and attorney’s fees to the opposing party. See former art. 4590i, § 13.01(e), (l),
(r)(6); see also Palacios, 46 S.W.3d at 877.
“Disparate treatment”
The Heberts contend that chapter 74 irrationally singles them out for disparate
treatment in violation of their rights to due process and equal protection. The due-course-of-law
guarantee of the Texas Constitution provides: “No citizen of this State shall be deprived of liberty,
18
property, privileges or immunities, or in any manner disenfranchised, except by due course of the law
of the land.” Tex. Const. art. I, § 19. Similarly, the federal due-process clause provides: “No state
shall make or enforce any law which shall abridge the privileges or immunities of the citizens of the
United States; nor shall any State deprive any person of life, liberty, or property, without due process
of law; . . . .” U.S. Const. amend. XIV, § 1. While the Texas Constitution is textually different in
that it refers to “due course” rather than “due process,” Texas courts regard these terms as without
substantive distinction unless and until a party demonstrates otherwise, and the Heberts suggest
no reason to construe them differently here. See University of Tex. Med. Sch. at Houston v. Than,
901 S.W.2d 926, 929 (Tex. 1995) (citing Mellinger v. City of Houston, 3 S.W. 249, 252-53 (1887)).
Under federal and state guarantees of due process, legislation that does not affect a
fundamental right or interest is valid if it bears a rational relationship to a legitimate state interest.
Rylander v. B & A Mktg. Co. ex rel. Atl. Richfield Co., 997 S.W.2d 326, 333-34 (Tex. App.—Austin
1999, no pet.) (citing Williamson v. Lee Optical, 348 U.S. 483, 491 (1955); Garcia, 893 S.W.2d
at 525). Similarly, the constitutional guarantee of equal protection requires only that disparate
treatment of different classifications be rationally related to a legitimate state purpose, unless
the classification impinges on the exercise of a fundamental right or distinguishes between people
on a “suspect” basis, such as race or national origin.12 The Heberts have not demonstrated that
12
Classifications that impinge upon the exercise of a fundamental right or distinguish
between people on a suspect basis (i.e., race, national origin, and alienage) “are subject[] to strict
scrutiny and will be sustained only if they are suitably tailored to serve a compelling state interest.”
City of Cleburne v. Cleburne Living Ctr. Inc., 473 U.S. 432, 440 (1985) (plurality opinion). When
a statute burdens a sensitive class or impinges on an important right, the statute is subject to an
intermediate level of scrutiny, which requires a showing that the statute is substantially related to an
important state interest. Id. at 440-41.
19
chapter 74 impinges on a fundamental or important right or a suspect class. By its terms, chapter 74
is facially neutral and applies to any party asserting a health care liability claim. Consequently,
in addressing the Heberts’ due-process and equal-protection claims, we must determine whether
chapter 74 bears a rational relationship to a legitimate state interest and whether the Legislature had
a rational basis in differentiating between health care liability claimants and other litigants. “In so
doing, we must uphold the law if we can conceive of any rational basis for the Legislature’s action.”
Owens Corning v. Carter, 997 S.W.2d 560, 581 (Tex. 1999).
In enacting chapter 74, the Legislature made a number of findings about the state
of the health care system in Texas. See Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 10.11,
2003 Tex. Gen. Laws 847, 884-85. Specifically, it found the frequency of claims and the amounts
paid out by insurers in judgments and settlements had risen inordinately since 1995, which created
a public problem in the availability and affordability of adequate medical professional liability
insurance. Id. § 10.11(a)(1), (3), (4). This “crisis” increased costs to physicians, hospitals, patients,
and the public. Id. § 10.11(a)(5), (7). As a result, the Legislature concluded the “adoption of certain
modifications in the medical, insurance and legal systems” would “have a positive effect on the rates
charged by insurers for medical professional liability insurance.” Id. § 10.11(a)(12). In enacting
various measures, including chapter 74, the Legislature intended to reduce the frequency and severity
of health care liability claims, decrease costs of claims, and ensure that awards were rationally
related to costs, but “do so in a manner that will not unduly restrict a claimant’s rights any more than
necessary to deal with the crisis.” Id. § 10.11(b)(1), (2), (3).
In Smalling v. Gardner, the Fourteenth Court of Appeals recognized that the
“legislature has broad authority to create classifications for legislative purposes, so long as they
20
have a reasonable basis and operate equally on all persons within the class.” 203 S.W.3d 354,
371 (Tex. App.—Houston [14th Dist.] 2005, pet. denied) (addressing special-law challenge to
constitutionality of article 4590i).13 The expert report is required only for claims against
healthcare providers for departures from accepted standards of medical or health care or safety. Id.
Accordingly, the expert-report requirement applies equally to all physicians and health care providers
and rationally relates to the interests of the State “in ensuring that medical practitioners were not
‘being placed in the situation of defending frivolous claims at a high cost’ to the health care system.”
Id. (quoting Schorp, 5 S.W.3d at 737). Recently, the Dallas Court of Appeals adopted the Smalling
analysis and applied it to chapter 74. See Hightower, 348 S.W.3d at 521.
While Smalling and Hightower dealt with special-law challenges, we previously
rejected an equal-protection challenge to chapter 74’s predecessor for similar reasons. Fields
v. Metroplex Hosp. Found., No. 03-04-00516-CV, 2006 WL 2089171, at *4 (Tex. App.—Austin
July 28, 2006, no pet.) (mem. op.) (“[T]he legislature determined that medical liability
plaintiffs should be treated differently because of the negative effects of the numbers and cost
of their lawsuits had on the provision of health care.”). In that case, the claimant failed to show
article 4590i’s expert-report requirement was not rationally or substantially related to the
government’s interest in reducing the aggregate costs of defending against frivolous costs and
reducing the costs of insurance and medical care to all. Id.; see also Bogar, 257 S.W.3d at 373
(in addressing due-process challenge to chapter 74: “We disagree that it is irrational, in light of the
13
Though the Heberts did not explicitly claim chapter 74 was an unconstitutional special law
prohibited by the Texas Constitution, many of their complaints track arguments raised by parties who
have raised such claims. Accordingly, we find cases addressing special-law challenges instructive.
21
legislature’s goal of curtailing frivolous health care liability claims, for it to require that appellees
serve an expert report explaining why or how this outcome was actually caused by the conduct of
[the defendant], as opposed to some other person or health care provider.”).
The Heberts challenge the Legislature’s rationale as “pre-textual, not supported
by empirical data and refuted by surveys showing there aren’t excessive frivolous medical
malpractice suits.” They reason that because the Legislature had previously acted to curb frivolous
medical malpractice claims by enacting article 4590i, its subsequent enactment of chapter 74 reflects
intent to “single out medical malpractice claimants for special and harsh treatment by making it so
onerous to file and prosecute [a claim] that they or their counsel will not take the case, or once it is
filed, to make it so difficult to prosecute the case that they or their counsel will just give up.” The
Heberts likewise complain that chapter 74 strips them “of all the rights accorded to other litigants
in the Texas Rules of Civil Procedure,” but does not place similar restrictions on “major corporations
like insurance companies and banks suing for breach of contract, or on individual or corporate clients
suing attorneys, accountants, bankers and brokers.” According to the Heberts, no compelling state
interest or rational basis supports this “arbitrary” classification.
We find no merit in the Heberts’ argument that the Legislature, evaluating the
impact of 4590i, could not have rationally concluded that a problem had nonetheless persisted in
the cost and availability of health care due to the prevalence of medical-malpractice suits. To the
extent the Heberts challenge the underlying policies of chapter 74, it is not our place to question
the Legislature’s policy decisions when conducting a rational basis review. See Bell v. Low Income
Women of Tex., 95 S.W.3d 253, 264 (Tex. 2002) (“The restriction clearly serves [the act’s]
purposes, and it is not for us to second-guess the Legislature’s policy choices.”). The Heberts fail
22
to demonstrate that the Legislature lacked any rational basis in differentiating between health care
liability claimants and other litigants. Accordingly, we reject the Heberts’ “disparate treatment”
constitutional challenges.
Separation of powers
For similar reasons, the Heberts’ other constitutional challenges fail. They claim
the Legislature has impermissibly interfered with the judicial branch through chapter 74. The
Texas Constitution vests the judicial power of the State in the courts. Tex. Const. art. V, § 1. The
separation-of-powers requirement prohibits one branch of government from exercising a power
inherently belonging to another branch. Id. art. II, § 1; Wilson-Everett, 242 S.W.3d at 802 (citing
General Servs. Comm’n v. Little-Tex Insulation Co., 39 S.W.3d 591, 600 (Tex. 2001)). Only 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 does a constitutional problem arise. Wilson-
Everett, 242 S.W.3d at 802.
Chapter 74’s expert report imposes a threshold procedural requirement aimed at
filtering out meritless or premature lawsuits from proceeding until a claimant makes a good-faith
effort to demonstrate that at least one expert believes that a breach of the applicable standard of care
caused the claimed injury. Id. at 802-04 (rejecting argument that chapter 74 “interefere[d] with the
judiciary’s constitutional power to decide when and how to render judgments” (citing Murphy
v. Russell, 167 S.W.3d 835, 838 (Tex. 2005) (per curiam); Walker, 111 S.W.3d at 66). Though the
Heberts contend chapter 74 “prohibits the courts from using the rules of procedure and directs the
courts in every respect,” in actuality, the courts retain the judicial power to determine whether a
23
timely served report is adequate in this regard and to render a decision accordingly. See Tex. Civ.
Prac. & Rem. Code Ann. § 74.351(l), (r)(6); see also Carrick v. Summers, 294 S.W.3d 886, 891
(Tex. App.—Beaumont 2009, no pet.) (“[I]mposing a strict, non-discretionary time limit on
serving the expert report does not restrict the trial court’s power to hear evidence, determine the facts
of a case and the rights of the parties, apply the law to the facts and to enter a judgment appropriate
to the case, any more than a statute of limitations does.”). The same is true of chapter 74’s
requirement that courts award attorney’s fees upon dismissal. Hightower, 348 S.W.3d at 522
(rejecting separation-of-powers challenge based on attorneys’ fees provision because “court still
retains its constitutional authority to determine the reasonable fees based on the law and the evidence
presented by the parties”). The Heberts offer no persuasive authority to the contrary. Accordingly,
we reject the Heberts’ separation-of-powers constitutional challenge.
Right of access
Finally, the Heberts argue chapter 74 violates their right of access to the courts and
due course of law. The open-courts provision of the Texas Constitution guarantees litigants the
right to redress their grievances. Tex. Const. art. I, § 13; LeCroy v. Hanlon, 713 S.W.2d 335, 341
(Tex. 1986). It protects a person from having his or her right to sue cut off by a legislative act before
the individual has been afforded a reasonable opportunity to discover the wrong and bring suit. Shah
v. Moss, 67 S.W.3d 836, 842 (Tex. 2001). It is premised on the rationale that the Legislature has
no power to make a remedy by due course of law contingent upon an impossible condition.
Hightower, 348 S.W.3d at 522 (citing Moreno v. Sterling Drug, Inc., 787 S.W.2d 348, 355
(Tex. 1990)); see also Stockton, 336 S.W.3d at 618 (rejecting open-courts challenge based on
24
chapter 74’s 120-day deadline). To prove that the statute violates the open-courts provision, the
Heberts must show that: (1) a cognizable common law cause of action is being restricted, and (2) the
restriction is unreasonable or arbitrary when balanced with the statute’s purpose and basis. Sax,
648 S.W.2d at 666.
A claimant bringing an as-applied open-courts challenge to chapter 74 must
show that the expert-report requirements actually prevented him from bringing his claims. Herrera,
212 S.W.3d at 461; McGlothlin v. Cullington, 989 S.W.2d 449, 453 (Tex. App.—Austin 1999,
pet. denied). The Heberts failed to prove how the provisions of chapter 74, as opposed to their
own failure to provide an adequate report, prevented them from pursuing their claims. See Ledesma,
2007 WL 2214650, at *9 (rejecting open-courts challenge when plaintiff failed to serve sufficient
reports); see also Stockton, 336 S.W.3d at 618-19 (rejecting as-applied open-courts challenge when
plaintiff failed to exercise due diligence in serving expert report on defendant physician).
As discussed above, the Heberts have also failed to show chapter 74 is unreasonable
or arbitrary when balanced with the statute’s purpose and basis. Health care liability claims require
expert testimony at trial. See Smalling, 203 S.W.3d at 371. The expert-report requirement “‘does
not violate the open-courts provision by requiring an expert report sooner rather than later in
the litigation.’” Id. (addressing article 4590i (quoting Mocega, 79 S.W.3d at 64)); see also Gill,
39 S.W.3d at 718-19 (article 4590i expert-report requirement did not violate open-courts provision
because plaintiff raising medical negligence claim required to prove claim by competent expert
testimony to avoid summary judgment and/or prevail at trial); Bankhead v. Spence, 314 S.W.3d 464,
466 (Tex. App.—Waco 2010, pet. denied) (“This Court and others have determined that the expert-
report requirement itself does not violate the open-courts guarantee because it ‘is rationally related
25
to the purpose of the statute to discourage frivolous malpractice suits.’” (quoting Powell v. Clements,
220 S.W.3d 138, 140 (Tex. App.—Waco 2007, pet. denied))); Fields, 2006 WL 2089171, at *4
(holding report requirement not so onerous that it “effectively deprived the litigant of access to
the court”).14
The Heberts have failed to demonstrate a constitutional defect in chapter 74’s expert-
report requirement.15 Accordingly, we overrule their second issue.16
14
The Heberts also argue that chapter 74 “effectively revives the general demurrer practice
which permitted judges to dismiss cases on the pleadings.” They argue that summary judgment is
the preferred method for defendants to obtain a dismissal on the merits. Our rules of procedure
prohibit the use of general demurrers. Tex. R. Civ. P. 90. However, “[w]hen a rule of procedure
conflicts with a statute, the statute prevails unless the rule has been passed subsequent to the statute
and repeals the statute . . . .” Johnstone v. State, 22 S.W.3d 408, 409 (Tex. 2000) (per curiam). The
current version of chapter 74 was passed in 2003 and amended in 2005; rule 90 was approved in
1940 and amended in 1980. Thus, to the extent chapter 74 and rule 90 conflict, chapter 74 controls.
See Mitchell v. Berry, No. 05-06-01328-CV, 2007 WL 4111923, at *4 (Tex. App.—Dallas Nov. 20,
2007, pet. denied) (mem. op.) (rejecting argument Tex. Civ. Prac. & Rem. Code Ann. § 13.001
allowing for dismissal in inability-to-pay cases was a general demurrer in contravention of Rule 90);
see also Smalling v. Gardner, 203 S.W.3d 354, 367 n.8 (Tex. App.—Houston [14th Dist.] 2005,
pet. denied) (distinguishing dismissal under general demurrer from dismissal for failure to serve
expert report).
15
The Heberts make passing reference to infringement of their right to trial by jury, but
provide no authority or argument in support of any challenge based on that provision that is distinct
from their other arguments. To the extent the Heberts intended to advance a distinct challenge based
on their right to jury trial, it too would fail. The right to a jury trial is not an absolute right in
civil cases, but is subject to certain procedural rules. Schorp v. Baptist Mem’l Health Sys., 5 S.W.3d
727, 738 (Tex. App.—San Antonio 1999, no pet.) (citing Wooten v. Dallas Hunting & Fishing Club,
Inc., 427 S.W.2d 344, 346 (Tex. Civ. App.—Dallas 1968, no writ)). “Imposing the requirement to
file an expert report and the failure to meet that requirement allows the trial court to dismiss the case.
This dismissal is not based on the merits, but merely operates to dismiss the case on a procedural
requirement which is directly related to the statute’s purpose of limiting the number of frivolous
suits.” Id. (addressing article 4590i (citing Buckholts Indep. Sch. Dist. v. Glaser, 632 S.W.2d 146,
149 (Tex. 1982) (holding that failure of plaintiff to fulfill bonding requirement for challenging
school board election did not deny taxpayer right to jury trial on merits))).
16
The Heberts point to decisions from other jurisdictions that, in their view, struck down
expert-report requirements similar to chapter 74 based on constitutional provisions analogous to the
26
CONCLUSION
Having overruled the Heberts’ issues on appeal, we affirm the district court’s
judgment.
__________________________________________
Bob Pemberton, Justice
Before Chief Justice Jones, Justices Pemberton and Rose;
Dissenting Opinion by Chief Justice Jones
Affirmed
Filed: March 1, 2013
protections on which they rely here. See, e.g., Putnam v. Wenatchee Valley Med. Ctr., 216 P.3d 374,
378-79 (Wash. 2009) (law requiring certificate of merit from expert at time of filing violated
separation of powers and right of access as it cut off rights of discovery and abrogated pleading
requirements in rules of procedure); Wimley v. Reid, 991 So. 2d 135, 138 (Miss. 2008) (law requiring
certificate of merit violated separation of powers); Summerville v. Thrower, 253 S.W.3d 415, 421
(Ark. 2007) (law requiring expert affidavit within 30 days of suit violated separation of powers);
Zeier v. Zimmer, Inc. 152 P.3d 861, 873 (Okla. 2006) (law requiring affidavit of merit with petition
barred right of access). They also acknowledge that courts in at least two jurisdictions upheld laws
similar to chapter 74. See McAlister v. Schick, 588 N.E.2d 1151, 1157-58 (Ill. 1992); Mahoney
v. Doerhoff Surgical Servs. Inc., 807 S.W.2d 503, 512-13 (Mo. 1991). Additionally, they favorably
cite cases from other jurisdictions that upheld similar laws “so long as the Legislature [does] not
direct[] the Courts how to decide the legitimacy of the case.” Texas decisions regarding chapter 74
are consistent with that reasoning. See, e.g., Wilson-Everett v. Christus St. Joseph, 242 S.W.3d
799, 803 (Tex. App.—Houston [1st Dist.] 2007, pet. denied) (rejecting argument that chapter 74
“interfere[d] with the judiciary’s constitutional power to decide when and how to render
judgments”). In any event, cases from other jurisdictions have no precedential value for this Court.
Instead, we are bound to follow the Supreme Court of Texas and our own precedent, as well as the
persuasive cases of our sister courts. Texas authorities have consistently rejected constitutional
challenges similar to those advanced by the Heberts.
27