author: EVELYN V. KEYES, Justice.

text:
    COLUMBIA CASUALTY COMPANY, Appellant, v. CP NATIONAL, INC. and National Emergency Services, Inc., Appellees.
    No. 01-00-01406-CV.
    Court of Appeals of Texas, Houston (1st Dist.).
    Sept. 16, 2004.
    Rehearing Overruled Sept. 15, 2004.

      James M. Corbett, Giessel, Barker & Lyman, Inc., Houston, TX, William H. Briggs, Ross, Dixon & Bell, L.L.P., Washington, DC, for Appellant.
    John E. Chapoton, Cunningham, Welsh, Darlow, Zook & Chapoton, LLP, Houston, TX, Jon Todd Powell, San Antonio, TX, for Appellees.
    Panel consists of Justices NUCHIA, JENNINGS, and KEYES.
   OPINION ON DENIAL OF EN BANC RECONSIDERATION

EVELYN V. KEYES, Justice.

The court has considered appellees’ motion for en banc reconsideration and is of the opinion that the motion should be denied. However, we withdraw our opinion and judgment dated May 27, 2004 and substitute those issued today to clarify our opinion.

This is an appeal from a summary judgment rendered in favor of appellees/plain-tiffs, CP National, Inc. (CPN) and National Emergency Services, Inc, (NES) in a suit for breach of contract, breach of the duty of good faith and fair dealing, and declaratory judgment against appellant, Columbia Casualty Company (Columbia). In its sole point of error, Columbia contends that the trial court erred in rendering summary judgment on CPN’s and NES’s claim for declaratory judgment regarding Columbia’s policy limits because the insurance policy provides a single “per loss event” limit. We reverse and render.

Facts

NES’s and CPN’s Suit Against Columbia

NES is a physician practice management company. CPN is one of its affiliates that provides emergency room care physicians in the District of Columbia at Sibley Memorial Hospital. Drs. Richard Doyan and Cooper Pearce are employees of CPN who worked at Sibley. Columbia provided NES, its affiliates (including CPN), and physicians under contract with NES coverage under certain professional liability insurance policies against claims and suits arising out of alleged medical malpractice. The Policy at issue is a “Claims-Made Medical Practitioners Policy” that insured NES and its affiliates and subsidiary companies as “Named Insured” against claims covered by the Policy and reported to the carrier, Columbia.

In 1998, Howard and Jill Flax filed a lawsuit in the Superior Court of the District of Columbia against Lucy Webb Hayes National Training School for Deaconesses and Missionaries d/b/a Sibley Memorial Hospital, CPN, Drs. Groover, Christie & Merritt, P.C., and Drs. Doyan and Newman. In an amended pleading, Jill Flax, individually and as personal representative of the deceased Howard Flax, added Dr. Pearce and NES as additional defendants. Pursuant to the Policy, Columbia defended NES, CPN, and Drs. Doyan and Pearce. A dispute arose, however, concerning the applicable limits of the Columbia Policy. Columbia claimed that the Policy expressly provided for a single “per loss event” limit of liability of $1,000,000. NES and CPN argued that the policy afforded a separate $1,000,000 limit each for claims against Dr. Doyan and Dr. Pearce, totaling $2,000,000.

NES and CPN filed a petition in Harris County District Court against Columbia, alleging breach of contract and breach of the duty of good faith and fair dealing, and seeking a declaratory judgment concerning the limits of the Policy. Each party moved for summary judgment. The trial court granted NES’s and CPN’s motion for partial summary judgment as it related to the declaratory judgment concerning the dispute over the monetary limits available to NES and CPN. After disposing of NES’s, CPN’s, and Columbia’s other motions, the trial court entered a final judgment.

The Underlying Suit

On the evening of December 1, 1996, Howard Flax sought treatment at Sibley emergency room complaining of persistent fever and a cough. Dr. Doyan, the emergency room physician on duty, examined Flax and, as part of the physical exam, ordered a chest x-ray. Dr. Doyan performed a preliminary reading of the x-ray and concluded that it was negative for pneumonia but that there was possibly a large lymph node. He diagnosed Flax as suffering from acute bronchitis and proscribed Hycomine and a Ventolin inhaler; he told Flax to continue taking the antibiotics he had been taking, and to take Tylenol or Advil if necessary.

The next day, Dr. Newman, a radiologist, interpreted the chest x-ray as “probably normal” and suggested a repeat x-ray in 30 to 60 days to exclude any growth in the left hilum, which contained very minimal fullness, probably representing vascular structures rather than pleural disease. He sent his report to the emergency room that day. Dr. Pearce was the emergency room physician on duty when the radiology report arrived at the emergency room. As the Director of the Emergency Department at Sibley, Dr. Pearce was responsible for reporting the x-ray interpretations from the radiologist to Flax and to his private physician. Dr. Pearce allegedly faded to inform Flax’s private physician about the x-ray and failed to communicate to Flax that, although the x-ray looked normal, there was the possible presence of an abnormality and that a follow-up x-ray was recommended in 30 to 60 days.

Flax was later diagnosed as having peripheral T-eell lymphoma, which ultimately caused his death. The lymphoma was alleged to have been present on December 1, 1996, when he went to the Sibley emergency room. The Flaxes contended in their suit that Dr. Doyan misdiagnosed Flax’s condition, misinterpreted the chest x-ray, and misrepresented to Flax that the results of his x-rays were normal. They also argued that Dr. Pearce was negligent in failing to inform Mr. Flax that he needed to obtain a follow-up chest x-ray because it would have detected the peripheral T-cell lymphoma much earlier than it was ultimately detected. Overall, the Flax lawsuit alleged that “the defendants misinterpreted, mishandled, and miscommunicated the results of Mr. Flax’s chest x-rays taken at Sibley Hospital on December 1, 1996. As a result ... the correct diagnosis and initiation of treatment for Mr. Flax’s cancer was delayed for more than one year ... [This] delay was a substantial factor in eliminating or significantly reducing Mr. Flax’s chance of surviving the disease.” The first complaint included claims for medical negligence and loss of consortium against Dr. Doyan and CEP, but not against Dr. Pearce or NES. In her second amended complaint, Mrs. Flax added Dr. Pearce and NES as defendants and asserted additional claims for wrongful death and a survival action.

Discussion

Columbia’s sole issue on appeal is whether the trial court erred in rendering summary judgment for CPN and NES declaring that the Policy afforded a separate $1,000,000 limit each for Drs. Doyan and Pearce. Columbia contends that the insurance policy at issue provides only a single limit of liability in the amount of $1,000,000 for the claims arising out of the injury to Flax. CPN and NES, on the other hand, argue that the trial court did not err in granting a summary judgment in its favor and ruling that two separate limits of liability, in the total amount of $2,000,000, were available under the Policy for the claims made against Drs. Doyan and Pearce in the Flax lawsuit.

Standard of Review

Summary judgment is proper only when a movant establishes that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law. Randall’s Food Mkts., Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex.1995). In reviewing a summary judgment, we indulge every reasonable inference in favor of the non-movant, assume that all evidence favorable to the non-movant is true, and resolve any doubts in its favor. Id.

Construction of Insurance Contracts

Insurance policies are contracts and therefore are controlled by rules of construction applicable to contracts generally. Barnett v. Aetna Life Ins. Co., 723 S.W.2d 663, 665 (Tex.1987). When construing a contract, including an insurance policy, our primary focus is to ascertain the true intent of the parties as expressed in the written document. Nat’l Union Fire Ins. Co. v. CBI Indus., Inc., 907 S.W.2d 517, 520 (Tex.1995). Whether a policy or contract is ambiguous is a question of law for the court to determine. Id. A written contract that can be given a definite or certain legal meaning is not ambiguous. Id. If the policy or contract contains no ambiguity, the words used are to be given their ordinary meaning. Puckett v. U.S. Fire Ins. Co., 678 S.W.2d 936, 938 (Tex.1984). If, however, the language of the policy or contract is subject to two or more reasonable interpretations, the policy is ambiguous and the construction that would afford coverage to the insured must be adopted. Nat’l Union, 907 S.W.2d at 520. A court should consider a contract, such as an insurance policy, as a whole, giving effect to each part; no single phrase, sentence, or section of the contract or policy should be isolated and considered apart from the other provisions. Forbau v. Aetna Life Ins. Co., 876 S.W.2d 132, 133 (Tex.1994).

The Policy

The issue on appeal is whether the Policy provides a single limit of liability of $1,000,000 for the claims made against Drs. Doyan and Pearce in the Flax lawsuit, as Columbia argues, or two separate limits of liability, of $1,000,000 each, for a total of $2,000,000, for the claims made against Drs. Doyan and Pearce, as CPN and NES argue.

The dispute over the limits of the Policy arises primarily from two Policy provisions, Section III and Endorsement 12. Section III provides for the limits of liability for each claim:

The limit of liability stated for ‘each claim’ is the limit of our liability for all injury or damage arising out of, or in connection with, the same or related medical incident.
This limit shall apply separately to:
1. each individual specifically named in this policy who qualify [sic ] for coverage under the definition of you; and
2. to the Partnership, Association or Corporation specifically named as the named insured, collectively with such personnel included as you by occupational description, but not specifically named in this policy.
This limit applies regardless of the number of persons or organizations who are covered under this policy.

(Emphasis added.) “Claim” is defined as “the receipt by you of a demand for money or services, naming you and alleging a medical incident.” “Claim” also “means a medical incident which you report to us during the policy period which might result in a claim.” The limit of liability for “each claim” is “the limit of our liability for all injury or damage arising out of, or in connection with, the same or related medical incident.” “Medical incident” is defined as “any act, error, or omission in the providing of or failure to provide professional services by you.”

Endorsement 12 of the Policy provides:

We agree with you, that the professional liability limits shown on the policy Declarations page are amended to include the following:
$1,000,000 Per Loss Event (Indemnity & Expense)
$3,000,000 Any One Person Policy Aggregate (Indemnity and Expense)
The “Per Loss Event” limit applies to all Insureds for all Damages to all persons for injuries to one patient.

Endorsement 12 thus provides for a $1,000,000 Per Loss Event limit which applies to “all Insureds for all Damages to all persons for injuries to one patient.”

“Loss Event”

As appellees point out in their motion for en banc consideration, the term “Per Loss Event” of Endorsement 12 is not defined in the Policy. Defining “per loss event” in the context of a medical malpractice insurance policy appears to be a matter of first impression for Texas. In insurance contracts generally, a “loss event” is the event that gives rise to the insurance company’s liability under the contract. See Helvering v. LeGierse, 312 U.S. 531, 539, 61 S.Ct. 646, 85 L.Ed. 996 (1941); AMERCO and Subsidiaries v. C.I.R., 96 T.C. 18, 38-39, 1991 WL 4981 (1991). Columbia, however, provided CPN and NES professional liability insurance ■written on a claims-made basis. Under claims-made policies, versus occurrence policies, “the mere fact that an insured loss-causing event occurs during the policy period is not sufficient to trigger insurance coverage of the loss.” F.D.I.C. v. Mijalis, 15 F.3d 1314, 1330 (5th Cir.1994). Rather, the insured generally must give notice to the insurer of any claims asserted against the insured, as well as of any occurrences that have caused or will potentially cause an insured loss. Id. The basic distinction between claims-made and occurrence policies is that, while the occurrence policy is triggered by the insured’s liability-producing conduct, the claims-made policy is triggered by the presentation of a claim. Continental Cas. Co. v. Maxwell, 799 S.W.2d 882, 886 (W.D.Mo.1990).

Here, Columbia’s liability is triggered when a claim is made. Section III defines a claim as the receipt of a demand for money or services that names the insured and alleges a medical incident, and it limits Columbia’s liability for each claim for injury “arising out of, or in connection with the same or related medical incident.” When Section III and Endorsement 12 are read together, the $1,000,000 “per loss event” limit is Columbia’s limit of liability for each claim, which, Section III provides, is “the limit of our liability for all injury or damage arising out of, or in connection with, the same or related medical incident.”

The “Loss Event” Limit

Columbia interprets Endorsement 12 literally. It contends that the “per loss event” limit of $1,000,000 “applies to all Insureds for all Damages to all persons for injuries to one patient.” (Emphasis added.) Thus, because there is only one patient, there is only one $1,000,000 limit for any “loss event,” i.e., for any damages “arising out of, or in connection with, the same or related medical incident.”

NES and CPN, on the other hand, ask us to interpret Endorsement 12 as limiting Columbia’s $1,000,000 liability per loss event only with respect to all persons asserting claims for injuries to one patient, i.e., with respect to derivative claims, but not as limiting Columbia’s liability with respect to the insureds against whom the claims are asserted, ie., with respect to separate claims made against separate physicians. Accordingly, NES and CPN argue that “Endorsement 12 operates to bring within the first Per Loss Event limit all claims the Flaxes asserted against Doy-an and within the second Per Loss Event limit all claims the Flaxes asserted against Pearce.”

NES and CPN urge us to follow the reasoning in Tumlinson v. St. Paul Insurance Company, 786 S.W.2d 406 (Tex.App.-Houston [1st Dist.] 1990, writ denied), where we construed language of a policy that limited liability “for all claims resulting from the injury ... of any one person.” In Tumlinson, we held that only one limit applied to separate claims filed by an injured child and its parents; thus, “the insurance company’s liability is limited under the policy to $500,000 for the injury of the child, regardless of the economic injury to the parents resulting from the child’s injury.” Id. at 408. However, Tumlinson does not support NES’s and CPN’s position because it addressed only derivative claims; therefore, it does not preclude our finding that not only derivative claims, but also claims against different insureds with respect to the same patient are subject to a single ‘per loss event’ limit of liability.

While we agree with NES and CPN that Endorsement 12 limits derivative claims, we find that Endorsement 12 limits more than only derivative claims. Endorsement 12 is clear and unambiguous. Breaking down the sentence into its logical parts, the per loss event limit applies to all insureds (NES, CPN, Dr. Doyan, and Dr. Pearce) for all Damages (any damages sought in the Flax suit) to all persons (Mrs. Flax and the Flax estate) for injuries to one patient (Flax).

Although a literal interpretation of Endorsement 12 seems to focus heavily on the one patient aspect, it must be remembered that Endorsement 12 is limited by Section III and its limit of liability for injury arising out of, or in connection with “the same or related medical incident.” Therefore, if one doctor committed an act of malpractice against a patient, and, six months later, the patient returned to the same hospital where a second doctor committed a second, completely independent act of malpractice on the same patient, there would not be one “loss event” despite there being only one patient; because the two doctors did not cause an injury arising out of, or in connection with, the “same or related medical incident,” (the second doctor’s act was completely independent) the insurance company’s limit of liability would not be limited, and there would be two per loss event limits. This is not the case here, however, because, as will be discussed later, we find that the medical incidents forming the basis of the Flax lawsuit are related medical incidents.

NES’s and CPN’s interpretation of Endorsement 12 ignores the literal language of the Endorsement and requires us to read “all persons” restrictively and “all insureds” liberally, without any justification in the plain language of the Policy for interpreting these phrases differently. Moreover, if Endorsement 12 served to limit only derivative claims, as NES and CPN claim, there would be no limit as to any underlying claim because, as NES and CPN acknowledge, the $1,000,000 figure, limiting claims per loss event, is located in the Policy only in Endorsement 12. Furthermore, if we were to follow NES’s and CPN’s argument to its logical conclusion, Columbia’s liability limits in the Policy would be meaningless. If, for example, 15 doctors, over the course of a week, examined, misinterpreted, mishandled, and mis-communicated the results of a patient’s x-rays, all in slightly varying capacities, according to NES and CPN, 15 limits of liability in the amount of $15,000,000 would be available under the Policy for the claims made against the 15 doctors. We do not believe this is the intended result of Endorsement 12. Rather, the plain language of the policy limits the total recovery for “all injury or damage arising out of, or in connection with, the same or related medical incident” to $1,000,000, regardless of the number of insureds sued.

Section III

Columbia argues that Section III of the Policy’s Professional Liability Coverage offers further support for its interpretation of the Policy limits; NES and CPN disagree.

Columbia contends that, under Section III, claims arising out of “related medical incidents” are subject to a single limit of liability and,' because the claims made by the Flax plaintiffs against Drs. Doyan and Pearce are related medical incidents, only one limit of liability applies. NES and CPN argue, in response, that the medical incidents alleged against Drs. Doyan and Pearce in the Flax lawsuit as separate claims are not related because the doctors’ actions were not causally related to one another; therefore, they are separate claims and are subject to the “limit of liability” stated for “each claim.”

The question of defining “related” in a medical malpractice insurance policy appears to be one of first impression for Texas. The parties look to and provide supporting authority from other jurisdictions.

NES and CPN, rely primarily on Arizona Property & Casualty Insurance Guaranty Fund v. Helme, 153 Ariz. 129, 735 P.2d 451 (1987), in which the Supreme Court of Arizona construed the term “related” to apply to the question of whether a causal relation existed between the acts or omissions of physicians treating patients. 735 P.2d at 455. While the Helme court recognized that “related,” in its commonly accepted dictionary sense, means having a logical or causal connection, the court nevertheless refused to apply this definition and noted, “We do not believe that the word ‘related’ as used in the policy can be equated with the phrase ‘logical connection.’ ... Incidents may be ‘logically related’ for a wide variety of indefinable reasons. Causal connection depends, to a much greater extent, on objective facts in the record.” Id. at 456. The Helme court, therefore, required a causal connection between one physician’s negligence and the second physician’s negligence in order to find related medical incidents.

Columbia relies heavily on Bay Cities Paving & Grading, Inc. v. Lawyers’ Mutual Insurance Co., 5 Cal.4th 854, 21 Cal.Rptr.2d 691, 855 P.2d 1263 (1993). In that case, the California Supreme Court defined “related claims” as those encompassing “both logical and causal connections,” noting that “restricting the word only to causal connections improperly limits the word to less than its general meaning.” Id. at 1264; see also Paradigm Ins. Co. v. P & C Ins. Sys., Inc., 747 So.2d 1040, 1042 (Fla.Dist.Ct.App.2000) (rejecting Helme, 735 P.2d at 451, and relying on Bay Cities in concluding that failure to notify excess insurance carrier was logically “related” act for purposes of notice provision of policy when both acts of negligence were said to have caused or contributed to absence of insurance coverage for loss). The Policy itself does not indicate that any particular definition, or a limited or restrictive definition, such as NES and CPN suggest, should be used to replace the plain, ordinary, and generally accepted meaning of “related.” See W. Reserve Life Ins. v. Meadows, 152 Tex. 559, 261 S.W.2d 554, 557 (1953). Moreover, although a malpractice event may involve numerous independent grounds of negligence that constitute a series of acts, Texas law indicates that they can still be related and form a single malpractice claim. See Am. Physicians Ins. Exch. v. Garcia, 876 S.W.2d 842, 853 n. 21 (Tex.1994) (comparing definition and ramifications of “Each Claim Occurrence” in commercial liability policy and medical malpractice policy; although “each claim occurrence” in medical malpractice policy has coverage effect similar to continuous or repeated exposure directive in commercial liability policy, malpractice event may involve independent malpractice grounds that cannot be classified as repeated exposure to same conditions but can constitute series of acts that are related). Thus, giving the term “related” its ordinary and generally accepted meaning, we conclude that “related” means having a logical or causal connection. See MeRRIam-WebsteR’s Collegiate Dictionary 1050 (11th ed.2003).

Here, all the medical incidents involve the same patient, at the same facility, during the same period of time, with regard to the same x-ray. All of the acts of malpractice alleged against doctors Doyan and Pearce allegedly led to a single result that formed the basis of the Flax lawsuit— failure to apprise Flax of his lymphoma, leading to a delayed diagnosis and thus Flax’s early death from lymphoma. We hold, therefore, that the medical incidents that form the basis of the Flax lawsuit are related medical incidents under the plain meaning of the Policy language.

We sustain Columbia’s point of error.

Conclusion

We hold that, as a matter of law, the plain language of the Policy at issue in this case limits total recovery to $1,000,000 for each loss event encompassing the same or related “medical incidents,” including all claims made by any and all persons against any and all insureds in the Flax lawsuit. We reverse and render judgment that Columbia’s total liability under the Policy is limited to $1,000,000.

      . The Policy defines “You” or "Your" as (1) "the persons or organization named on the Declarations of this policy as the named insured; (2) any approved locum tenens employed by you while acting within the scope of their duties as such ...; (3) any physician or surgeon who becomes a partner, stockholder, or employee during the policy period ...; (4) any of your employees other than a physician or surgeon, but only while acting within the scope of their duties as such.” Endorsement 5 to the Policy amended this definition to include "any physician or surgeon, but only for professional services provided on behalf of the organization named on the declarations of this policy as the Named Insured, and only at a location specified on the Schedule of Locations attached to this policy.”

        . Our definition of per loss event as $1,000,000 for each claim for injury or damage arising out of, or in connection with, the same or related medical incident, is consistent with that used by CPN and NES. In their original brief, CPN and NES defined the per loss event limit as "the $1 million limit for indemnity and cost of defense for each claim that asserts a medical incident.”

      . NES and CPN suggest that we do not even need to address whether the claims made against the two doctors arose out of related medical incidents, because "medical incident” is defined in terms of a physician’s services, not a patient, and therefore, because two doctors each provided their services and each committed alleged malpractice arising from his services, there must be two separate limits of liability. However, the fact that allegedly negligent services are provided by two different physicians does not entail that the acts are not logically related to each other, i.e., do not arise out of a common nexus of logically connected events.

      . NES and CPN argue that if we determine that both parties have presented reasonable interpretations of Section III, ambiguous terms must be construed strictly against the insurer and liberally in favor of the insured, them. However, "not every difference in the interpretation of an insurance policy amounts to an ambiguity.” Potomac Ins. Co. of Illinois v. Jayhawk Med. Acceptance Corp., 198 F.3d 548, 551 n. 3 (5th Cir.2000). The mere absence of a policy definition does not give rise to a finding of ambiguity. Id. Similarly, although the insured and the insurer take conflicting views of coverage, neither conflicting expectations nor dialectics are sufficient to create ambiguity. Forbau, 876 S.W.2d 132, 134.


source: Caselaw Access Project

author:
JANE BLAND, Justice.
      EVELYN V. KEYES, Justice,

license: Public Domain

text:
    Terry RHODES, Appellant, v. The STATE of Texas, Appellee.
    Nos. 01-03-00327-CR, 01-04-00739-CR, 01-04-00740-CR.
    Court of Appeals of Texas, Houston (1st Dist.).
    Oct. 14, 2004.
    Rehearing Overruled July 27, 2005.

      Kelly Gatewood, State Counsel for Offenders, Huntsville, TX, for Appellant.
    Melinda Mayo, Special Prosecution Unit, Amarillo, TX, for Appellee.
    Panel consists of Chief Justice RADACK and Justices ALCALA and BLAND.

      . It also would permit the argument that crimes committed by an inmate who has escaped should not be stacked because they did not occur inside the prison unit.

   OPINION

JANE BLAND, Justice.

In one indictment containing three separate counts, the State charged appellant Terry Rhodes with the felony offenses of escape, burglary of a habitation, and theft. The indictment includes two punishment enhancement paragraphs. The first alleges a previous conviction for felony escape in Smith County, and the second alleges a previous conviction for felony burglary of a habitation. Rhodes pleaded guilty to the charged offenses, and not true to the enhancement paragraphs. The trial court convicted Rhodes of the three offenses, and a jury found both enhancement paragraphs true. The jury assessed punishment at 33 years’ confinement for the escape, 25 years’ confinement for the burglary, and 25 years’ confinement for the theft. The trial court ordered the three convictions to run consecutively with a 45-year prison sentence Rhodes is serving for an aggravated sexual assault conviction.

We conclude that Rhodes “was an inmate in the institutional division of the Texas Department of Criminal Justice” at the time he committed his earlier Smith County escape offense, and thus the trial court in the earlier escape case should have run that escape sentence consecutively to the sentence for aggravated sexual assault Rhodes was then serving. Tex. Code Ceim. PROC. Ann. art. 42.08(b) (Vernon Supp.2004). It did not. As such, as the State concedes, the earlier sentence was not “authorized by law,” under Fullbright v. State, 818 S.W.2d 808 (Tex.Crim.App.1991). We therefore conclude that the State cannot use Rhodes’s earlier Smith County escape conviction to enhance Rhodes’s sentences for the three convictions in this case, and we remand for a new punishment hearing.

Facts and Procedural Background

Facts

In August 2000, Rhodes escaped from the Wynne Unit of the Texas Department of Criminal Justice — Institutional Division (TDCJ-ID) in Walker County, Texas. He stole a diesel semi-truck and drove it through the fence surrounding the prison, undeterred by a prison guard’s firing of gunshots at the truck. Rhodes abandoned the truck at a truck stop. Rhodes evaded capture for approximately one week. During that time, Rhodes broke into a trailer, and stole food and clothing. He also stole a tractor, which he drove into a swamp, whereupon authorities apprehended him.

Previous Criminal History

The resolution of this appeal involves Rhodes’s enhancement convictions, and thus we detail his criminal record. In January 1997, Rhodes pleaded guilty and was convicted of burglary of a habitation in Angelina County, Texas and was sentenced to three years confinement. In February 1997, a jury convicted Rhodes of aggravated sexual assault in Hardin County, Texas, and assessed punishment at 45 years confinement. In September 1999, while serving his sentence for the aggravated sexual assault conviction, authorities transferred Rhodes to Smith County on a bench warrant, to answer for a theft offense. While in Smith County, Rhodes escaped from custody (“the Smith County escape”). Police apprehended Rhodes. The State charged him with escape and theft. Rhodes pleaded guilty to both offenses, and he was convicted in May 2000. The trial court’s judgment for the Smith County escape states, “It is further adjudged and decreed by this court that the sentence pronounced herein shall begin May 8, 2000.” The trial court thus ordered the Smith County escape sentence to run concurrently with Rhodes’s existing aggravated sexual assault sentence.

Whether the 1999 Sentence was “Authorized by Law”

In this appeal, Rhodes contends that his Smith County escape conviction is void because the trial court ordered it to run concurrently with, rather than consecutively to, the aggravated sexual assault offense that Rhodes was serving in TDCJ-ID at the time he escaped in 1999. In particular, Rhodes maintains, that the trial court erred in refusing to quash the State’s indictment, because his sentence for the Smith County escape is in contravention of the Texas Code of Criminal Procedure, which mandates that the sentence run consecutively. See Tex.Code CRim. PRoc. Ann. art. 42.08(b) (Vernon 2004).

The issue before this Court is whether Article 42.08(b), which provides that a sentence must run consecutively if an inmate commits a criminal offense while incarcerated in a TDCJ-ID prison, requires that the offender commit the offense while physically located within the prison — as the State contends — or whether Article 42.08(b) applies to any offense committed by an inmate currently serving his sentence within the TDCJ-ID, regardless of his temporal location at the time of the offense. The issue is one of first impression in Texas courts.

Article 42.08(b) provides:

If a defendant is sentenced for an offense committed while the defendant was an inmate in the institutional division of the Texas Department of Criminal Justice and the defendant has not completed the sentence he was serving at the time of the offense, the judge shall order the sentence for the subsequent offense to commence immediately on completion of the sentence for the original offense.

Id. In the trial court, Rhodes moved to quash his indictment, contending that he was an inmate in the TDCJ-ID, serving a sentence for aggravated sexual assault, at the time he escaped in Smith County, and thus the trial court’s failure to run the escape conviction consecutively to the 45-year sexual assault prison sentence renders the Smith County escape sentence void. See id.; Fullbright v. State, 818 S.W.2d 808, 810 (Tex.Crim.App.1991) (holding that an aggravated assault conviction used to enhance an aggravated robbery conviction was unauthorized by law and thus “void,” because the aggravated assault sentence of five years probation was not within the statutory punishment range, despite the fact that the sentence was more lenient than the statutory punishment range). After considering evi-denee and the arguments of counsel, the trial court denied Rhodes’s motion, observing that this issue presents “a beautiful appellate question.”

The State concedes that, if the trial court erred in failing to stack the Smith County escape sentence, then it cannot rely upon that conviction to enhance Rhodes’s convictions that are on appeal here. See Fullbright, 818 S.W.2d at 810. It responds, however, that the Smith County escape sentence correctly ran concurrently because, at the time Rhodes escaped in Smith County, he was ,not an “inmate in the institutional division of the Texas Department of Criminal Justice” as contemplated by Article 42.08(b) of the Code of Criminal Procedure. The State maintains that Rhodes was not an “inmate” for Article 42.08(b) purposes because he escaped while temporarily housed at the Smith County Jail on a bench warrant, and was not physically in an institutional division facility at the time of his escape.

Our objective in interpreting a statute is to adhere to the collective intent or purpose of the legislators who enacted it. Griffith v. State, 116 S.W.3d 782, 785 (Tex.Crim.App.2003). When a statute is clear and unambiguous, courts should not strain the plain meaning of the wording in order to give the statute a different reading. Smith v. State, 789 S.W.2d 590, 592 (Tex.Crim.App.1990). We interpret an unambiguous statute literally, unless such a construction results in absurd consequences. See State v. Gutierrez, 129 S.W.3d 113, 114 (Tex.Crim.App.2004). If a statute may be reasonably interpreted in two different ways, we consider the consequences of the two interpretations in determining which interpretation to adopt, keeping in mind that if one interpretation yields absurd results while the other yields no absurdities, the latter interpretation is preferred. Griffith, 116 S.W.3d at 785. We also turn to the statute’s legislative history for clarification. Murdock v. State, 870 S.W.2d 41, 42 (Tex.Crim.App.1993).

• The literal language of Article 42.08— “while the defendant was an inmate in the institutional division” — is subject to two possible interpretations: it can require stacking only for offenses an inmate commits while physically housed in the TDCJ-ID institution, or it could require stacking for any offense an inmate commits during the time he is an inmate processed into the institutional division, and actually serving a sentence in the institutional division, but who commits the offense in another location. See e.g., Tex. Pen.Code Ann. §§ 12.31(a), 12.32(a), 12.33(a), 12.34(a), 12.35© (Vernon 2003) (providing for imprisonment in the institutional division for capital, first, second, and third degree felonies, and, under certain circumstances, state jail felonies). In interpreting Article 42.08, we consider its legislative history, related statutes, and the consequences of the alternate interpretations. Griffith, 116 S.W.3d at 785; Murdock, 870 S.W.2d at 42. Statutory Intent and Legislative History

The Texas Court of Criminal Appeals has explained that “[t]he obvious intent of Article 42.08(b) is to deter inmates from committing crimes during their incarceration and to more harshly punish those inmates who are not deterred.” Basden v. State, 897 S.W.2d 319, 321 (Tex.Crim.App.1995) (emphasis added). Before the Legislature enacted Article 42.08(b), inmates who committed a crime while serving a sentence in the TDCJ-ID, and were convicted of that crime while still serving their sentence, were often allowed to serve the two sentences concurrently. House Comm. On Law Enfoijcement, Bill Analysis, Tex. S.B. 186, 69th Leg., R.S. (1985). Inmates therefore had no effective incentive to refrain from engaging in criminal conduct while serving their sentences, as they suffered no actual consequences (other than loss of good time) for their later crimes, because their subsequent sentence often ran concurrently with their original sentence. Id. The House Committee on Law Enforcement explained that it intended Article 42.08(b) to provide inmates with a strong incentive to refrain from engaging in criminal conduct while serving a sentence in TDC. Id. (emphasis added). The State’s interpretation that stacking the sentence turns on the temporary physical location of the defendant, and not on the defendant’s status as an inmate in the institutional division, is inconsistent with the Legislature’s intent and purpose in enacting Article 42.08(b), and inconsistent with precedent from the Court of Criminal Appeals. See Basden, 897 S.W.2d at 321-22 (“Any interpretation of Article 42.08(b) that results in creating a situation whereby inmates can commit crimes with impunity simply because they are in prison is absurd and should not be adopted by this Court.”).

Article 42.08 of the Code of Criminal Procedure does not specifically define the term “inmate.” The Texas Court of Criminal Appeals has, however, held that the plain meaning of the term “inmate” is “a ‘person confined to a prison, penitentiary, or the like.’” In re Russell, 60 S.W.3d 875, 877 (Tex.Crim.App.2001) (quoting Black’s Law Dictionary 788 (6th ed.1990)). See also Boykin v. State, 818 S.W.2d 782, 785 (Tex.Crim.App.1991) (courts to give effect to plain meaning of a statutory provision, unless application of the plain meaning would lead to absurd results). The Russell Court also recognized that other statutory provisions generally define inmate as “one who is housed in or confined to a correctional facility.” Russell, 60 S.W.3d at 876-77. It is undisputed that, at the time of his Smith County escape, Rhodes was confined to a TDCJ-ID facility, regardless of the fact that he escaped while temporarily located at the county jail.

In support of its contention that mandatory stacking does not apply to inmates who escape while in court on a bench warrant, the State relies upon Articles 56.12 and 60.08 of the Code of Criminal Procedure. Both Article 56.12 and Article 60.08 recognize that an inmate or offender temporarily may be transferred from the TDCJ-ID to the custody of a peace officer, pursuant to a bench warrant. Neither of these statutes, however, provides that an inmate who temporarily leaves the physical confines of a TDCJ-ID institution ceases to be an “inmate in the institutional division of the Texas Department of Criminal Justice” as contemplated by Article 42.08(b). For example, Article 56.12 requires notice to past victims of an escape or a temporary change in the offender’s place of confinement. See Tex.Code Crim. PROC. Ann. art. 56.12 (Vernon Supp.2004). Similarly, Article 60.08 requires a court that decides to release an offender who is on a bench warrant to notify TDCJ-ID of the release. See Tex.Code Crim. PROC. Ann. art. 60.08(e) (Vernon Supp.2004). Article 60.08 thus does not support the concept that a TDCJ-ID offender loses inmate status while temporarily absent to answer a bench warrant.

The State called David Weeks during the pretrial hearing to testify about his understanding of the legislative history of Article 42.08. Although not a legislator, Weeks testified that he had some involvement in drafting and introducing the legislation, and he testified in support of the bill. In Weeks’s view, the Legislature intended that Article 42.08 apply only to crimes committed within the physical confines of the prison unit. The House Committee on Law Enforcement’s Report on Article 42.08, however, is silent regarding any Legislative intent to exempt offenses an inmate commits while temporarily transferred on a bench warrant. House Comm. On Law Enforcement, Committee Report, Tex. S.B. 186, 69th Leg., R.S. (1985). “[I]n assessing the legislative purpose, a court cannot assume that the selected statements of a few legislators, even the sponsors of the legislation, reflected the motivation of the entire Legislature.” Holberg v. State, 38 S.W.3d 137, 140 (Tex.Crim.App.2001). Weeks was not a member of the Legislature, and the legislative history is silent on the subject; thus, his testimony as to the Legislature’s intent in enacting Article 42.08(b) is not determinative. See Holberg, 38 S.W.3d at 140; Tex. Dept. Pub. Safety v. Kreipe, 29 S.W.3d 334, 338 (Tex.App.-Houston [14th Dist.] 2000, pet. denied).

Consequences of the Two Interpretations

Giving effect to the State’s interpretation of Article 42.08(b) in this one case leads to nonsensical results. First, it creates an inconsistency between similarly situated inmates who are serving prison sentences, by punishing those who commit offenses within the TDCJ-ID facility more harshly than those who commit offenses in non-TDCJ-ID facilities, or while outside the walls of the prison unit. Second, such an interpretation allows an inmate serving a prison sentence, but temporarily outside the prison walls, to commit crimes without fear of mandatory additional punishment, under conditions that perhaps favor the possibility of success. If the attempt is unsuccessful, an inmate could simply plead guilty, and receive a sentence to run concurrent with the sentence he currently serves, as Rhodes did here in connection with his Smith County escape — his first of two escapes. Considering the purposes of Article 42.08(b), we doubt that the Legislature intended such a consequence, particularly when the applicability of the statute does not turn on the physical location of the offender, but rather on the offender’s status as an “inmate.”

We hold that Article 42.08(b) requires a court to stack the sentence for an offense committed by an inmate if that inmate (1) has been processed into the TDCJ-ID, and (2) is serving a sentence currently confining him in the institutional division of the Texas Department of Criminal Justice, regardless of the inmate’s temporal physical location at the time he commits the offense. This interpretation is consistent with the pronouncement by Texas Court of Criminal Appeals that “[t]he obvious intent of Article 42.08(b) is to deter inmates from committing crimes during their incarceration and to more harshly punish those inmates who are not deterred.” Basden, 897 S.W.2d at 321. Article 42.08(b) required Rhodes’s Smith County escape conviction to run consecutive to his aggravated sexual assault conviction, and thus, as the State concludes, Fullbright requires that we hold that the trial court erred in refusing to quash the first enhancement portion of the indictment. Fullbright, 818 S.W.2d at 810.

The Harm Analysis

The jury found both enhancement allegations to be true, and applied a punishment range from 25 to 99 years, or life imprisonment. Rhodes contends that the jury’s verdict evidences harm because it assessed punishment at the minimum of the range allowed for the burglary and theft (25 years), and near the minimum for the Walker County escape (33 years). Had the trial court granted his motion to quash, the indictment would have contained one enhancement allegation, with a punishment range from two to 20 years for the theft and escape, and five to 99 years, or life imprisonment for the burglary. Because the jury assessed punishment at more than the maximum that should have been allowed by the court’s charge on the escape and theft convictions, and the minimum erroneously authorized for the burglary conviction, we are unable to conclude that the error is harmless, and thus remand this case for a new punishment hearing. See Id. at 811.

Conclusion

We conclude that the trial court should have quashed the portion of the indictment with respect to an enhancement for the Smith County escape because the sentence for the Smith County escape should have run consecutively, rather than concurrently. We therefore reverse the judgment of the trial court and remand the counts for a new punishment hearing.

En banc consideration was requested.

A majority of the justices of the Court voted to overrule the request for en banc consideration.

Justice KEYES dissenting from the overruling of the request for en banc consideration, joined by Justice JENNINGS.

EVELYN V. KEYES, Justice,

dissenting.

I respectfully dissent from denial of en banc consideration. The issue before this Court is whether Rhodes’a conviction for escape from prison in 1999 (the Smith County escape) should be used to enhance Rhodes’ conviction for escape from prison in 2002, which Rhodes now appeals. In my view, the panel’s opinion that the earlier escape sentence is void, and that the earlier escape conviction may not, therefore, be used to enhance appellant’s current sentence, is erroneous and creates disunity between this Court’s opinions and the current jurisprudence of this State, constituting an extraordinary circumstance that requires en banc consideration. See Tex.R.App. P. 41.2(c) (providing that en banc consideration should be ordered only in extraordinary circumstances).

The panel holds that the trial court’s 1999 order in the Smith County case that Rhodes’ Smith County escape run concurrently with the sentence Rhodes was then serving for aggravated assault was an unauthorized, and thus void, “sentence” and that' Rhodes’ conviction for that escape cannot be used to enhance the penalty for his latest escape. The result of the panel’s ruling is not only to void the enhancement paragraph for Rhodes’ latest escape, but also, in effect, to void the sentence entered in the prior Smith County escape case. I would hold, in accordance with current jurisprudence, that the order that Rhodes’ sentence for the Smith County escape run concurrently with the sentence he was then serving was not itself a “sentence,” or even part of a sentence, but a cumulation order. As such, it is a separate part of the judgment entered with regard to that escape. Accordingly, even if the cumulation order is void, Rhodes’ sentence for the Smith County escape is not void, and his conviction for that escape should be available to enhance his punishment for the instant escape. I would, therefore, affirm the judgment of the trial court.

In reaching the contrary conclusion— that Rhodes’ “sentence” for his Smith County escape is void and that, therefore, Rhodes’ prior conviction for escape may not be used to enhance his punishment in this case — the panel relies primarily on Fullbright v. State, 818 S.W.2d 808 (Tex.Crim.App.1991). In Fullbright, the Court of Criminal Appeals held that a prior probated sentence used for enhancement purposes was void because, as the panel here states, “the aggravated assault sentence of five years probation was not within the statutory punishment range.” Id. at 810. The panel acknowledges that the Court of Criminal Appeals “later abrogated its decision in Fullbright, and held that the sentence and the conditions for community supervision are different parts of the judgment, and thus an error in the conditions of community supervision does not render the conviction void.” See Speth v. State, 6 S.W.3d 530, 532-33 (Tex.Crim.App.1999); Ex Parte Williams, 65 S.W.3d 656, 657-58 (Tex.Crim.App.2001). Nevertheless, the panel fails to draw the distinction between a sentence and other parts of the judgment, a distinction that governed the disposition of Speth and Ex parte Williams and that applies here.

The problem arises from a gloss placed by the Court of Criminal Appeals on the “sentence” imposed in State v. Ross, 953 S.W.2d 748 (Tex.Crim.App.1997), a case decided after Fullbright and before Speth. In Ross, the Court of Criminal Appeals was called upon to construe article 42.02 of the Code of Criminal Procedure, which defines a sentence as “that part of the judgment, or order revoking a suspension of the imposition of a sentence, that orders that the punishment be carried into execution in the manner prescribed by law.” Tex.Code ÜRiM. PROC. Ann. art. 42.02 (Vernon 2004). The court pointed out that “the sentence used to encompass the entire judgment in that the sentence was ‘the order of the court ... pronouncing the judgment and ordering the same to execute,’ ” but that the term “sentence” had been “significantly narrowed” over the years so that it had become “nothing more than the portion of the judgment setting out the terms of punishment.” Ross, 953 S.W.2d at 750 (quoting Thornton v. State, 576 S.W.2d 407, 408 (Tex.Crim.App.1979)).

Comparing the definition of a sentence in article 42.02 of the Code of Criminal Procedure and the definition of a judgment in article 42.01, which includes affirmative findings and the terms of the sentence as separate parts of the information contained in a judgment, the Court of Criminal Appeals held that a finding that an assault was committed with a deadly weapon was part of the judgment, but not part of the sentence. Id.; see also Tex.Code CRIM. Proc. Ann. art. 42.01 § 1(21) (Vernon Supp.2004-2005) (listing “[ajffirmative findings” as separate part of judgment); § 1(15) (listing “term of sentence” as separate part of judgment). The court then added, “For example, the sentence in this case would include the facts that appellant is to serve sixteen years in the penitentiary beginning July 28,1995, that his term is concurrent, and that he must pay a $500 fine.” Ross, 953 S.W.2d at 750 (emphasis in original). The court thus included the “fact” that a sentence was “concurrent” in its illustration of the terms of the sentence. However, the court then immediately reiterated that the intent of the Legislature in defining the term “sentence” in article 42.02 was clearly to restrict the definition of that term and to exclude “those aspects of the judgment merely affecting those facts,” such as affirmative findings. Id. (emphasis in original).

The panel in this case invokes the example given by the Court of Criminal Appeals in Ross as authority for its own argument that a sentence includes the terms for cumulation of sentences set out in the judgment; and, because the cumulation of sentences statute at issue here, article 48.02(b) of the Code of Criminal Procedure, does not authorize a court to order that a sentence for escape run concurrently with a sentence the defendant is already serving, the panel holds that Rhodes’ sentence for the Smith County escape is void, and, therefore, Rhodes’ prior escape conviction may not be used to enhance his current punishment.

I believe that, to the extent Ross holds — instead of merely observing in dictum — that the imposition of a concurrent sentence is itself part of the sentence, rather than a separate part of the judgment, that holding has been implicitly abrogated by later authority. The Court of Criminal Appeals revisited the distinction between a sentence and a judgment in Speth, 6 S.W.3d 530. This time, the court explicitly juxtaposed a sentence, as defined in article 42.02 of the Code of Criminal Procedure, to a judgment, as defined in article 42.01, noting that article 42.01, section one, of “[t]he Code defines ‘judgment’ as the written declaration of the court signed by the trial judge and entered of record showing the conviction or acquittal of the defendant” and that section one further provides that “[t]he sentence served shall be based on the information contained in the judgment.” Speth, 6 S.W.3d at 535 n. 4 (citing Tex.Code Crim. Proc. Ann. art. 42.01 § 1). The court pointed out that, in setting out the information contained in the judgment, article 42.01 distinguishes between “the length of community supervision, and the conditions of supervision,” provided for in subsection 1(10), and “[t]he term of the sentence,” provided for in subsection 1(15). Id. at 532; see also Tex.Code CRIM. Proc. Ann. art. 42.01, §§ 1(10), (15). The court concluded that, therefore, the conditions of community supervision specified in article 42.12, section 11(a) of the Code of Criminal Procedure and included in the judgment pursuant to article 42.01, subsection 10, were separate from the sentence included in the judgment under article 42.01, subsection 15.

Just as the Court of Criminal Appeals held in Speth that placement of a defendant on community supervision under article 42.12, section 3(a) of the Code of Criminal Procedure was part of the judgment, but not part of the sentence, so I would hold in this case that a trial court’s cumu-lation order under article 42.08(b) likewise is part of the judgment, but not part of the sentence. Like article 42.12, section 11(a), at issue in Speth, article 48.02(b), at issue here, provides information regarding the terms under which sentences shall be served in conformity with article 42.01’s mandate that “[t]he sentence shall be served based on the information contained in the judgment.” See Tex.Code CRIM. Proc. Ann. art. 42.01, § 1; see also Speth, 6 S.W.3d at 535 n. 4 (distinguishing additional information in the judgment from the sentence). Just as article 42.01, defining the parts of a judgment, expressly distinguishes the conditions of community supervision from “[t]he term of the sentence” set out in a judgment, so article 42.01 expressly distinguishes “[t]he term of any order entered pursuant to article 42.08 of this code that the defendant’s sentence is to run cumulatively or concurrently with another sentence or sentences,” from the “[t]he term of the sentence.” Tex.Code Crim. Proc. Ann. art. 42.01, §§ 1(10), (15), (19). By its terms, article 42.08 cannot and does not assess punishment for any crime; rather, it comprehensively prescribes the terms under which two or more sentences are cumulated in any given case. Thus, logically, article 42.08 does not set out a sentencing scheme, instead, it sets out terms for the cumulation of sentences; and an order under article 42.08 is not itself a sentence, but rather a cumulation order. Nor can an order cumulating sentences any longer be construed as a portion of a “sentence” under the plain language of articles 42.01 and 42.02 of the current Code of Criminal Procedure; instead, a cumulation order must be construed as a separate portion of the judgment.

I believe the current jurisprudence of this State requires us to conclude that a cumulation order under article 42.08(b) is not part of a sentence, but a separate part of the judgment. If that conclusion is correct, then, although a cumulation order may be void as not authorized by law, the sentence improperly cumulated, which is a separate part of the judgment, is not thereby made void, and the prior conviction may be used to enhance the punishment for a subsequent crime. I would hold that Rhodes’ sentence for the Smith County escape is not void, even if the cumulation order that was part of his judgment of conviction for that escape is void, and that the prior conviction was properly used to enhance his sentence in the current case; and I would affirm the judgment of the trial court.

Because I believe the panel’s opinion commits this Court to an erroneous interpretation of the Code of Criminal Procedure applicable to this and future cases, I respectfully dissent from denial of en banc consideration.

      . In its brief, the State concedes Fullbright’s applicability to this case. In Fullbright, the Texas Court of Criminal Appeals held that the State may not rely upon a punishment that is “not authorized by law” for enhancement purposes, even if the punishment is more lenient than that authorized. The Court later abrogated its decision in Fullbright, and held that the sentence and the conditions for community supervision are different parts of the judgment, and thus, an error in the conditions of community supervision does not render the conviction void. Speth v. State, 6 S.W.3d 530, 532-33 (Tex.Crim.App.1999); see also Ex Parte Williams, 65 S.W.3d 656, 657-58 (Tex.Crim.App.2001) (concluding that illegal grant of community supervision should not be applied to rule governing illegal sentences).
      The Court of Criminal Appeals, however, continued to uphold the rule of law that "if a punishment is not authorized by law, that portion of the sentence imposing that punishment is void” in Speth and Ex Parte Williams. See Speth, 6 S.W.3d at 531 (citations omitted). As the Court of Criminal Appeals explained:
      [T]he case law ... involving "void” sentences has viewed legislatively defined sentencing schemes that are explicit about the applicable range or category of punishment as absolute, systemic features of the system, such that their application cannot be waived. That is, a defendant’s "right” to be sentenced to a term within the defined "universe of punishments applicable to the offense” is absolute and nonwaiveable.

        Speth, 6 S.W.3d at 533 n. 5. As the State conceded in its brief, Fullbright thus remains applicable here, because the Court of Criminal Appeals has defined a "sentence” to include whether it is to run concurrently or consecutively, as that is part of its execution. See State v. Ross, 953 S.W.2d 748, 750 (Tex.Crim.App.1997) ("|T]he sentence in this case would include the facts that appellant is to serve 16 years in the penitentiary ... that his term is concurrent, and that he must pay a $500 fine.”) (emphasis added). The dissent from our court’s denial of en banc review argues that Speth "impliedly” overrules Ross. We cannot agree, because the Court of Criminal Appeals expressly relied upon Ross in its decision in Speth. See Speth, 6 S.W.3d at 532 and note 4 (relying on Ross, contrasting community supervision, which is not part of a sentence, with "orders that the punishment be carried into execution in the manner prescribed by law.”); see also TexCode Crim. Proc. Ann. Art. 42.02 (Vernon 2002).

      . The Texas Department of Corrections was renamed the Texas Department of Criminal Justice after the enactment of Article 44.08(b). In 1993, Article 44.08 was amended to reflect the name change. See Act of May 29, 1993, 73rd Leg., R.S. ch. 900, § 5.03, 1993 Tex. Gen. Laws 3586, 3752 (amending Article 42.08 to make conforming changes).

      . Inmate generally connotes the offender's permanent institutional status, not his temporary physical location. For example, Article 42.19, the Interstate Corrections Compact, defines an inmate as "a male or female offender who is committed, under sentence to or confined in a penal or correctional institution.” Tex.Code Crim. Proc. Ann. art. 42.19 (Vernon Supp.2004). Compare with Tex. Gov’t Code Ann. § 508.081 (Vernon 1998) (providing that term "inmate" for purposes of that chapter includes an "(A) an administrative releasee; (B) an inmate imprisoned in the institutional division; and © a person confined in a transfer facility or county jail awaiting: (I) transfer to the institutional division; or (ii) a revocation hearing.”).

      .Article 56.12 of the Code of Criminal Procedure provides as follows:

        (a) The Texas Department of Criminal Justice shall immediately notify the victim of an offense ... whenever the offender:
      (1) escapes from a facility operated by the institutional division; or
      (2) is transferred from the custody of the institutional division to the custody of a peace officer under a writ of attachment or a bench warrant.

      Tex.Code Crim. Proc. Ann. art. 56.12 (Vernon Supp.2004) (emphasis added). Article 60.08(e) provides as follows:
      A court that orders the release of an offender under Section 6(a), Article 42.12, of this code at a time when the offender is under a bench warrant and not physically imprisoned in the institutional division shall report the release to the institutional division of the Texas Department of Criminal Justice not later than the seventh day after the date of the release.
      Tex.Code Crim. Proc. Ann. art. 60.08(e) (Vernon Supp.2004).

      . Article 42.12 ("Community supervision”) provides in relevant part:

        The judge may impose any reasonable condition that is designed to protect or restore the community, protect or restore the victim, or punish, rehabilitate, or reform the defendant.
      TexGode Crim. Proc. Ann. art. 42.12, § 11(a). Article 42.01, "Judgment,” sets out the "information contained in the judgment” in 27 discrete subparts, including § 1(10) (conditions of community supervision) and § 1(15) ("term of the sentence”).

      . In LaPorte v. State, the Court of Criminal Appeals held, "An improper cumulation order is, in essence, a void sentence and such error cannot be waived” and that "[a] defect which renders a sentence void may be raised at any time.” 840 S.W.2d 412, 415 (Tex.Crim.App.1992). Given the subsequent abrogation of cases in this line that conflate the terms of a sentence and the terms of a judgment — including Heath, 817 S.W.2d 335 (holding that a portion of a "sentence” not authorized by law, namely probation, is void), abrogated by Ex parte Williams, 65 S.W.3d 656 (Tex.Crim.App.2001), and Ex parte Sims, 868 S.W.2d 803 (Tex.Crim.App.1994) (holding that defendant could not waive right to have sentences run concurrently, even by consent), overruled by Ex parte McJunkins, 954 S.W.2d 39 (Tex.Crim.App.1997), as well as Speth — LaPorte appears to have been implicitly, although not explicitly, abrogated to the extent it equates a sentence with a conviction. To be consistent with Speth, LaPorte must be read as holding that a cumulation order not authorized by statute is void, not that either a sentence or a judgment in which sentences are improperly cumulated is void.


text:
    Ted ROBERTSON, Appellant, v. The STATE of Texas, Appellee.
    No. 01-03-00633-CR.
    Court of Appeals of Texas, Houston (1st Dist.).
    Dec. 30, 2004.
    Discretionary Review Refused June 15, 2005.

      Sandy Melamed, Houston, TX, for Appellant.
    Charles A. Rosenthal, Jr., District Attorney — Harris County, and Amanda J. Peters, Assistant District Attorney, Houston, TX, for Appellee.
    Panel consists of Chief Justice RADACK and Justices KEYES and ALCALA.
   OPINION

EVELYN V. KEYES, Justice.

A jury found appellant, Ted Robertson, guilty of violating a protective order. After finding two enhancements true, the jury assessed appellant’s punishment at 25 years’ confinement. In four points of error, appellant argues that the evidence is legally and factually insufficient to support his conviction because the State did not establish that he (1) threatened the complainant with imminent bodily injury and (2) used or exhibited a deadly weapon. We affirm.

Background

Appellant and the complainant had been married for 19 years when they divorced in 1997. The marriage produced two sons. After the divorce, in 2001, the complainant obtained a protective order against appellant. The protective order forbade appellant from: (1) committing family violence against the complainant; (2) threatening or harassing the complainant directly or through another person; (3) going near or to the complainant’s home or office; and (4) engaging in conduct that would be likely to harass, abuse, annoy, alarm, torment, or embarrass the complainant. The protective order warned appellant that a violation could result in a fine, confinement in jail, or both.

The complainant testified that, in March 2002, Tracey Robertson, appellant’s and the complainant’s youngest son, telephoned his father to tell him about an argument he had with his basketball coach. Appellant went to the complainant’s home, where Tracey was living. Appellant announced his arrival by yelling and beating on the front door. The complainant opened her front door, but kept her burglar bar door, which had fairly large gaps in between the bars, closed. Appellant, who had a box-cutter knife in his hand, yelled obscenities and ordered the complainant to come outside. The complainant was afraid and refused; she told him to leave or she would call the police. Appellant told her that he would “get her” and that he was coming back. Eventually, the complainant closed the front door and appellant left. Tracey Robertson testified that he saw his parents argue, but did not see a knife.

The complainant called the police after appellant left. The Houston police officer who responded to her call testified that the complainant’s eyes were wet, and that she seemed very nervous, upset, and afraid. He testified that she spoke with a shaky voice when she told him what appellant had done.

Standard of Review

Legal Sufficiency

We review the legal sufficiency of the evidence by viewing the evidence in the light most favorable to the verdict to determine whether any rational fact finder could have found the essential elements of the crime beyond a reasonable doubt. Wesbrook v. State, 29 S.W.3d 103, 111 (Tex.Crim.App.2000); King v. State, 29 S.W.3d 556, 562 (Tex.Crim.App.2000). Although our analysis considers all evidence presented at trial, we may not re-weigh the evidence and substitute our judgment for that of the fact finder. King, 29 S.W.3d at 562.

Factual Sufficiency

We begin the factual sufficiency review with the presumption that the evidence supporting the jury’s verdict is legally sufficient. Clewis v. State, 922 S.W.2d 126, 134 (Tex.Crim.App.1996). We view all of the evidence in a neutral light, and we will set the verdict aside only if the evidence is so weak that the verdict is clearly wrong and manifestly unjust, or the contrary evidence is so strong that the standard of proof beyond a reasonable doubt could not have been met. Escamilla v. State, 143 S.W.3d 814, 817 (Tex.Crim.App.2004) (citing Zuniga v. State, 144 S.W.3d 477, 481 (Tex.Crim.App.2004)). Our evaluation may not intrude upon the fact finder’s role as the sole judge of the weight and credibility accorded any witness’s testimony. Cain v. State, 958 S.W.2d 404, 407 (Tex.Crim.App.1997). What weight to be given contradictory testimonial evidence is within the sole province of the fact finder because it turns on an evaluation of credibility and demeanor; the fact finder may choose to believe all, some, or none of the testimony presented. Id. at 407-08. We must defer appropriately to the fact finder to avoid substituting our judgment for its judgment. Zuniga, 144 S.W.3d at 481-82.

Discussion

Imminent Bodily Injury

In his first and second points of error, appellant contends the State failed to prove, as a matter of law or fact, that he threatened the complainant with imminent bodily injury.

A protective order is violated if a person knowingly or intentionally commits an act of family violence. Tex. Pen.Code Ann. § 25.07(a)(1). Family violence means “an act by a member of a family ... against another member of the family ... that is intended to result in ... bodily injury, assault, or ... that is a threat that reasonably places a member in fear of imminent ... bodily injury.” Tex. Family Code Ann. § 71.004 (Vernon 2002). Appellant contends his threat was conditioned on a future event; that is, the complainant would only be harmed if she came outside of her house. He argues, therefore, that, under Devine v. State, 786 S.W.2d 268, 270 (Tex.Crim.App.1989), his actions did not constitute a threat of imminent bodily injury. We disagree.

“Imminent” means “near at hand; mediate rather than immediate; close rather than touching; impending; on the point of happening; threatening; menacing; perilous.” Devine, 786 S.W.2d at 270 (citing Black’s Law Dictionaky 676 (rev. 5th ed.1979)). As in Devine, we construe the term “imminent” to refer to a present threat, not a future threat of bodily injury or death. See Devine, 786 S.W.2d at 270 (defining “imminent” bodily injury with respect to § 29.02(a)(2) of the Texas Penal Code). The Court of Criminal Appeals relied on this definition in Devine to find that Devine did not threaten the complainant with imminent bodily injury when she said that she would have him killed sometime in the future if he did not give her money. Id. The court explained that there was nothing in the record to show that Devine had “acted in such a way as to place [the complainant] in fear of imminent harm” because Devine did not tell Cox that she was carrying a weapon, nor did she make threatening movements towards Cox. Id. at 271.

Citing Green v. State, 567 S.W.2d 211 (Tex.Crim.App.1978), the Devine Court distinguished between a conditional and a future threat. See Devine, 786 S.W.2d at 270-71. In Green, the defendant had told the complainant to give him money or he would cave his head in. Green, 567 S.W.2d at 212. The Devine Court held that Green’s threat was a conditional threat of imminent bodily injury, unlike Devine’s threat of bodily injury to occur sometime in the future; proof of the conditional threat, unlike proof of a future threat, satisfied the standard of proof of imminent bodily injury. See Devine, 786 S.W.2d at 271.

Legal Sufficiency

Here, the evidence presented at trial showed that appellant went to the complainant’s house and announced his presence by banging on the door and yelling. The complainant opened the door, but kept the burglar bars closed. Appellant took a box-cutter knife out of his pocket and ordered the complainant to come outside. Appellant told her that he would “get her” and that he was coming back. The complainant told him to leave or she would call the police. She testified that she was afraid of appellant, even though the burglar bars were closed. She was afraid appellant would return. She explained that appellant had, on several prior occasions, told her he did not care about the protective order.

We conclude that appellant’s threat was not a future threat of bodily injury but was a present threat of imminent bodily injury. Displaying the box-cutter knife was an overt, threatening act. In addition, appellant stated that he would “get her” and that he was coming back. While burglar bars separated appellant from the complainant, it is possible that he could have injured her by striking her between the bars or by waiting for her to leave her home. Appellant told the complainant that he would return, and she believed him.

We conclude that this evidence was sufficient for the jury to conclude beyond a reasonable doubt that appellant threatened the complainant with imminent bodily injury. The evidence was thus legally sufficient.

Factual Sufficiency

The only contradictory evidence presented was the testimony of Tracey Robertson, the complainant’s and appellant’s son. Tracey testified that he saw his parents argue, but he did not see appellant with a knife. He also testified that he did not hear appellant threaten the complainant. On cross-examination, Tracey testified that he did not want his father to go to prison. He stated he did not recall speaking to a police officer after the encounter between his parents. He also did not remember telling the police officer that his father kicked the front door; or that his father pulled a knife out of his pocket and told his mother that he was going to get her; and he testified that he did not see the knife.

A jury has the sole province of deciding what weight to give contradictory testimony because its decision turns on the evaluation of demeanor and credibility. Cain v. State, 958 S.W.2d 404, 408-09 (Tex.Crim.App.1997). A jury’s verdict is not manifestly unjust when it resolves conflicting views in favor of the State. Id. at 410. It is clear by the verdict that the jury chose to give more weight to the complainant’s testimony. After examining all of the evidence neutrally, we hold that the proof of guilt was not so obviously weak as to undermine confidence in the jury’s determination; nor was the contrary evidence so strong that the beyond-a-reasonable-doubt standard could not have been met. The evidence was thus factually sufficient to show that appellant threatened the complainant -with imminent bodily injury.

We overrule appellant’s first and second points of error.

Deadly Weapon

In his third and fourth points of error, appellant contends the evidence was legally and factually insufficient to support his conviction because the State did not prove that the box-cutter knife was a deadly weapon as defined by law. The State responds that proof that appellant threatened the complainant with imminent bodily injury with a knife is enough to prove a violation of section 25.07 of the Texas Penal Code, the crime with which appellant was charged, without proof that the knife was a deadly weapon. Thus, any variance between the proof and the indictment — ■ which stated that appellant, “did there and then unlawfully intentionally and knowingly violate a protective order ... by committing the offense of assault of [the complainant], with imminent bodily injury by threatening [her] with a deadly weapon, namely, A KNIFE” — was immaterial.

When there is a discrepancy between the evidence presented at trial and the language in the charging instrument, a variance exists. Gollihar v. State, 46 S.W.3d 243, 246 (Tex.Crim.App.2001). If an appellant’s due process rights are violated, the variance is fatal and the evidence is insufficient. Id. at 257. However, if the variance does not surprise the appellant or prejudice his substantial rights, the variance is immaterial and does not impact his conviction. Id. at 248. An appellant’s substantial rights are prejudiced if the charging instrument does not inform him sufficiently to allow him to develop an adequate defense. Id. An appellant’s rights are also substantially prejudiced if, under a differently worded charging instrument, he could be prosecuted for the same offense at a later time. Id. at 248-49.

A variance between the wording of an indictment and the evidence presented at trial is fatal only if “it is material and prejudices [the defendant’s] substantial rights.” When reviewing such a variance, we must determine whether the indictment, as written, informed the defendant of the charge against him sufficiently to allow him to prepare an adequate defense at trial, and whether prosecution under the defi-ciently drafted indictment would subject the defendant to the risk of being prosecuted for the same crime .... we hold that when faced with a sufficiency of the evidence claim based upon a variance between the indictment and the proof, only a “material” variance will render the evidence insufficient. Thus, the hypothetically correct charge will take into consideration the fatal variance doctrine.... Allegation^] giving rise to immaterial variances may be disregarded in the hypothetically correct charge, but allegations giving rise to material variances must be included.

Gollihar, 46 S.W.3d at 257 (footnotes omitted).

Appellant was charged with unlawfully, intentionally and knowingly violating a protective order by “committing the offense of assault of [the complainant], namely, by intentionally or knowingly threatening [the complainant] with imminent bodily injury by threatening [the complainant] with a deadly weapon, namely, A KNIFE.” A person commits assault when he “intentionally or knowingly threatens another with imminent bodily injury.” Tex. Pen.Code Ann. § 22.01(a)(2) (Vernon 2003). A deadly weapon is not a statutory element for violating a protective order or committing an assault. See id.; Tex. Pen.Code Ann. § 25.07(a)(1). As discussed above, we have found the evidence is legally and factually sufficient to show that appellant threatened the complainant with imminent bodily injury with a box-cutter knife.

We conclude that the indictment sufficiently informed appellant of the charge against him to allow him to prepare an adequate defense and that he was not put at risk of being prosecuted later for the same crime by the inclusion of the words “a deadly weapon” in the indictment. Therefore, allegation of the words “a deadly weapon” in the indictment, which words were omitted from the jury charge, did not give rise to a material variance. Because it was unnecessary for the State to prove the box-cutter knife was a deadly weapon, appellant’s claims of insufficient evidence are without merit.

We overrule appellant’s third and fourth points of error.

We affirm.

      . Tex. Pen.Code Ann. § 25.07(a)(1) (Vernon Supp.2004-2005). If the order is violated by committing an assault, the offense is a felony. Tex Pen.Code Ann. § 25.07(g) (Vernon Supp. 2004-2005).

      . Webster's Dictionary defines a box cutter as "a small cutting tool that is designed for opening cardboard boxes and typically consists of a retractable razor blade in a thin metal sheath.” Merriam-Webster’s Collegiate Dictionary 148 (11th ed.2003).


text:
    WOMEN’S REGIONAL HEALTHCARE, P.A., Appellant, v. FEMPARTNERS OF NORTH TEXAS, INC. and FemPartners, Inc., Appellees.
    No. 01-03-00584-CV.
    Court of Appeals of Texas, Houston (1st Dist.).
    Feb. 10, 2005.

      Carl Dawson, Ryan & Dawson, Houston, TX, for Appellant.
    Derrick Carson, S. Shawn Stephens, Charlie Baumann, Locke Liddell & Sapp, LLP, Houston, TX, for Appellee.
    Panel consists of Chief Justice RADACK and Justices KEYES and ALCALA.
   OPINION

EVELYN V. KEYES, Justice.

This is an appeal of the trial court’s confirmation of an arbitration award of $805,927.39 to appellees, FemPartners of North Texas, Inc. and FemPartners, Inc. In two issues, appellant, Women’s Regional Healthcare, P.A. (WRH), contends that the contract that contained an arbitration provision was illegal because it violated the unauthorized-corporate-practice-of-medi-eine doctrine and, therefore, the arbitration clause was unenforceable because it was included in an illegal contract. We affirm.

Background

FemPartners is a company that acquires the assets of obstetrics and gynecological practices to operate and to manage those practices. In September 1999, FemPart-ners and WRH entered into a contract to which each party refers as a “Service Agreement.” FemPartners was appointed the sole and exclusive manager of all non-medical functions and services related to the acquired clinic. Under the terms of the agreement, FemPartners agreed to provide office space and facilities, clinic supplies, support personnel, physician recruiting services, administrative management services, billing and collection services, legal and accounting services, and financial advisory services, for which it would receive 20% of the clinic’s net revenues. FemPartners was also authorized to recommend fees in connection with the goods and services provided by WRH, and to market, negotiate, and administer all managed care contracts. However, Fem-Partners was expressly prohibited from exercising control over the physician-patient relationship, and only WRH was authorized to practice medicine, hire physicians, or document patient care. WRH also expressly retained “absolute and independent control over the diagnosis and treatment of patients and all other medical and ethical affairs.”

After a dispute arose between the parties, WRH demanded arbitration in July 2002 in accordance with the arbitration clause in its service agreement with Fem-Partners. WRH sought damages and termination of the ■ contract. FemPartners counterclaimed, contending that WRH had breached the contract and was not entitled to termination. Over two years later, on the eve of the arbitration hearing, WRH filed a response to FemPartners’ counterclaim, contending for the first time that the service agreement was illegal. After considering evidence regarding both the legality of the contract and the alleged breaches by both parties, the arbitration panel awarded FemPartners damages. FemPartners filed an application in the trial court to confirm the award pursuant to section 171.082 of the Civil Practices and Remedies Code. Tex. Civ. PRac. & Rem. Code Ann. § 171.082(a) (Vernon Supp. 2004-2005). WRH responded by filing a motion to vacate the award pursuant to section 171.088 of the Code. Id. § 171.088 (Vernon Supp.2004-2005) (specifying grounds for vacation of arbitration awards). The trial court confirmed the award, and this appeal ensued.

WRH argues that the contract containing the arbitration provision was void because it violated the unauthorized-eorpo-rate-practice-of-medicine doctrine; thus, there was no enforceable arbitration clause and, since the arbitration clause was unenforceable, the court had to return the parties to the status quo prior to the arbitration. FemPartners contends that WRH has waived any complaint because WRH initiated the arbitration and never objected to it. FemPartners also argues that WRH did not assert a proper statutory basis for vacating the award. We first consider whether WRH has properly asserted a statutory basis to vacate the arbitration award.

Discussion

Vacation of Arbitration Award Under Section 171.088(a)(4)

Unless a party relies on a statutory basis to vacate an arbitration award, the trial court must affirm the award. See Tex. Civ. PRAC. & Rem.Code Ann. § 171.087 (Vernon Supp.2004-2005); Jamison & Harris v. Nat’l Loan Investors, 939 S.W.2d 735, 737 (Tex.App.-Houston [14th Dist.] 1997, pet. denied). Under section 171.088 of the Civil Practices and Remedies Code, a court may vacate an arbitration award under only four circumstances: (1) the award was procured by fraud, corruption, or other undue means; (2) there was evident partiality, corruption, or willful misconduct by the arbitrator that prejudices the rights of a party; (3) the arbitrator exceeded its power, refused to postpone the hearing on good cause shown, or refused to hear evidence; or (4) “there was no agreement to arbitrate, the issue was not adversely determined in a proceeding under Subchapter B, and the party did not participate in the arbitration hearing without raising the objection.” See Tex. Civ. PRAC. & Rem.Code Ann. § 171.088(a).

' On appeal, WRH relies upon the last statutory ground for vacatur, arguing that (1) there was no valid arbitration agreement, (2) the issue was not adversely determined in proceedings to stay or compel arbitration, and (3) it did not participate in the arbitration without raising the objection that there was no valid arbitration agreement. In sum, WRH argues that there was no agreement to arbitrate because the service agreement containing the arbitration agreement was illegal, the issue of whether there was a valid agreement to arbitrate was not decided pursuant to a motion to stay or compel arbitration, and WRH raised the issue of the illegality of the service agreement in the arbitration. We disagree with WRH’s contention that it has satisfied the criteria for seeking vacatur of the arbitration award under section 171.088(a)(4).

In construing a statute, we must give effect to the plain meaning unless to do so would render the statute absurd or meaningless. Chevron Corp. v. Redmon, 745 S.W.2d 314, 316 (Tex.1987); Mueller v. Beamalloy, Inc., 994 S.W.2d 855, 860 (Tex.App.-Houston [1st Dist.] 1999, no pet.). The arbitration statute is written in such a way as to ensure that an arbitration award is set aside only in limited circumstances. Monday v. Cox, 881 S.W.2d 381, 384 (Tex.App.-San Antonio 1994, writ denied). Because we must accord great deference to arbitration awards, judicial scrutiny of these awards focuses on the integrity of the arbitration process, not on the propriety of the result. Tuco, Inc. v. Burlington N. R.R. Co., 912 S.W.2d 311, 315 (Tex. App.-Amarillo 1995), modified on other grounds, 960 S.W.2d 629 (1997). In interpreting section 171.088(a)(4), therefore, we focus on the integrity of the arbitration process.

Section 171.088(a)(4) provides that a court may vacate an arbitration award when “there was no agreement to arbitrate, the issue was not adversely determined in a proceeding under Subchap-ter B, and the party did not participate in the arbitration hearing without raising the objection.” Tex. Civ. PRAC. & Rem.Code Ann. § 171.088(a) (emphasis added). An objection to the validity of a contract containing an agreement to arbitrate as a whole does not satisfy the statute. Rather, if the parties’ dispute arises from a contract containing an arbitration clause, a challenge to the contract as a whole — as opposed to a challenge specific to the arbitration clause itself — must be resolved by the arbitrators. See In re David’s Supermarkets, Inc., 43 S.W.3d 94, 98 n. 7 (Tex.App.-Waco 2001, no pet.) (citing Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388 U.S. 395, 404, 87 S.Ct. 1801, 1806, 18 L.Ed.2d 1270 (1967)). The general principle was first enunciated by the United States Supreme Court in Prima Paint, 388 U.S. at 403-04, 406, 87 S.Ct. at 1806, 1807 (holding that statutory language of Federal Arbitration Act does not permit court to consider claims of fraud in inducement generally, but only fraud in inducement of arbitration clause itself). The United States Court of Appeals for the Fifth Circuit has explained the rule in language we find persuasive:

[WJhere parties have formed an agreement which contains an arbitration clause, any attempt to dissolve that agreement by having the entire agreement declared voidable or void is for the arbitrator. Only if the arbitration clause is attacked on an independent basis can the court decide the dispute; otherwise, general attacks on the agreement are for the arbitrator.
[T]he separability doctrine rests on the assumption that there is an underlying agreement. That one of the parties later disputes the enforceability of that agreement does not change the fact that at some point in time, the parties reached an agreement, and that agreement included the decision to arbitrate disputes arising out of the agreement. The existence of this agreement provides the arbitrator with the authority required to decide whether the agreement will continue to exist. Even if the arbitrator concludes that the agreement was void, and the parties are returned to their pre-agreement positions as if the agreement never existed, the agreement existed long enough to give the arbitrator the power to decide the dispute.

Will-Drill Res., Inc. v. Samson Res. Co., 352 F.3d 211, 218-19 (5th Cir.2003) (emphasis in original) (citations omitted).

From the plain language of the statute, read in light of the separability doctrine, we conclude that, to preserve its right to appeal the arbitration award under section 171.088(a)(4) of the Civil Practice and Remedies Code, WRH was required to object specifically to the arbitration itself on the ground that there was never any agreement to arbitrate between the parties. See id. § 171.088(a)(4). This it did not do.

Propriety of Appeal of Arbitral Award in Favor of FemPartners Under Section 171.088(a)

The record in this case shows that, although WRH raised the issue of the service agreement’s illegality before arbitration commenced, WRH did not allege prior to the arbitration that no agreement to arbitrate had ever existed; nor did it allege in its arbitration claim that the arbitration clause was invalid under general principles of contract law applicable to every contract; nor did it object to participating in the arbitration on the ground that there was no agreement to arbitrate. Rather, the parties acknowledged their agreement to arbitrate by WRH’s own invocation of the arbitration clause in the service agreement and FemPartners’ failure to object to submission of the dispute to arbitration. WRH itself initiated the arbitration proceeding pursuant to the arbitration clause in the service agreement, and it alleged in its amended arbitration pleadings that the service agreement as a whole was unenforceable under the substantive statutory law applicable to the dispute, the Medical Practices Act — not that the arbitration clause was void. It argued, “the contractual agreement between [the parties] is void and unenforceable because it violates the Texas Medical Practice Act as FemPartners is engaged in the unauthorized corporate practice of medicine.” The question of the validity of the contract as a whole was a legal issue for the arbitrators to decide; and they decided it. See David’s Supermarkets, 48 S.W.3d at 98 n. 7. We hold that WRH failed to satisfy the statutory criteria for setting aside the award under section 171.088(a)(4) of the Civil Practice and Remedies Code.

Conclusion

Because our ruling on this issue is dis-positive, we decline to address WRH’s remaining issues.

We affirm the trial court’s judgment.

      . Subchapter B governs motions and proceedings to compel or stay arbitration. Tex. Civ. Prac. & Rem.Code. § 171.001 (Vernon 1995); see also 9 U.S.C.A. § 2 (1997).

      . This Court has previously pointed out that the language in the Texas Arbitration Act governing the submission of disputes to arbitration is identical in relevant part to the language in the Federal Arbitration Act construed by the federal courts. Pepe Int’l Dev. Co. v. Pub Brewing Co., 915 S.W.2d 925, 932 (Tex.App.-Houston [1st Dist.] 1996, no writ). The Texas Arbitration Act provides:
      A written agreement to submit any existing controversy to arbitration or a provision in a written contract to submit to arbitration any controversy thereafter arising between the parties is valid, enforceable and irrevocable, save upon such grounds as exist at law or in equity for the revocation of any contract.

      . Were we to interpret subsection 171.088(a)(4) as permitting the losing party to an arbitration to assert the illegality of the agreement as grounds to vacate the award, even though it did not object to the arbitration proceeding before it began, we not only would be flouting the plain meaning of the statute and the separability doctrine, we would be inviting every party to an arbitration to plead the illegality of the contract containing the arbitration clause, rather than the illegality of the arbitration clause itself, as an escape hatch should it obtain an unfavorable result in arbitration. We do not believe that, in enacting subsection 171.088(a)(4), the Legislature intended to install a swing hinge on the arbitration door.