author: DAVID PURYEAR, Justice.

text:
    WESCO DISTRIBUTION, INC., Appellant, v. WESTPORT GROUP, INC., Appellee.
    No. 03-03-00438-CV.
    Court of Appeals of Texas, Austin.
    April 8, 2004.

      George C. Baldwin, Jeffrey S. Chapman, Lloyd, Gosselink, Blevins, Rochelle, Baldwin & Townsend, PC, Austin, for appellant.
    Michael G. Lockwood, Kiester, Lockwood & Babb, LLP, Austin, John T. Beli-veau, Law Office of John T. Beliveau, Blanco, for appellee.
    Before Chief Justice LAW, Justices KIDD and DAVID PURYEAR.

      .Although Wesco's lien, claim included unpaid balances for materials delivered in March and April, it is clear from the statute that no valid lien could attach for those balances, as their deadlines for notice, May 15 and June 15, respectively, had long since passed. Wesco advances no argument regarding those balances or deadlines.

   OPINION

DAVID PURYEAR, Justice.

Appellant, Wesco Distribution, Inc., appeals the judgment of the district court of Bastrop County granting appellee West-port Group Inc.’s motion for summary judgment to remove a materialman’s lien and awarding Westport attorney’s fees in the amount of $16,140.77. Wesco raises two issues on appeal, asserting: (1) the district court misinterpreted the notice provisions of sections 53.003 and 53.056 of the property code, see Tex. Prop.Code Ann. §§ 53.003, .056 (West 2002); and (2) the district court abused its discretion in awarding Westport attorney’s fees. We affirm the judgment of the district court.

FACTUAL BACKGROUND

Westport, a general contractor, agreed to build a dental office for E & M Properties and hired J & D Electric as its electrical subcontractor for the project. J & D Electric agreed to provide all the labor and materials necessary to perform the subcontract work. J & D Electric purchased some of the materials used in the dental office from Wesco, but failed to fully pay Wesco for these materials. On July 11, 2001, Wesco attempted to send notice by mail to Westport of J & D Electric’s outstanding bill for materials purchased between March 2001 and June 25, 2001, in order to notify Westport of Wesco’s claim for a materialman’s hen on the property. The post office returned this notice to Wesco because Wesco failed to attach sufficient postage. Wesco added postage and again mailed its notice to Westport on July 25, 2001. On July 19, Westport, having received no notice of lien, made a payment to J & D Electric. Although it is unclear when notice was actually received, it is clear that no payments were made by Westport after receipt of notice. By the time it received notice, Westport had paid J & D Electric almost everything it was owed. Wesco filed an affidavit claiming a lien on September 13, 2001.

Westport filed suit to remove Wesco’s claimed lien, and Wesco filed suit for damages and foreclosure of its lien. The two lawsuits were consolidated. Westport filed a summary motion “to remove invalid or unenforceable lien” pursuant to section 53.160 of the property code, and Wesco opposed the motion. See id. § 53.160. The trial court initially denied Westport’s summary motion, but when the parties filed cross-motions for summary judgment, the trial court granted Westport’s request for summary judgment made on the same grounds as its earlier motion. Wesco then brought this appeal.

STANDARD OF REVIEW

Because the propriety of a summary judgment is a question of law, we review the trial court’s decision de novo. Natividad v. Alexsis, Inc., 875 S.W.2d 695, 699 (Tex.1994); Texas Dep’t of Ins. v. American Home Assurance Co., 998 S.W.2d 344, 347 (Tex.App.-Austin 1999, no pet.). The standards for reviewing a motion for summary judgment are well established: (1) the movant for summary judgment has the burden of showing that no genuine issue of material fact exists and that it is entitled to judgment as a matter of law; (2) evidence favorable to the nonmovant will be taken as true in deciding whether there is a disputed material fact issue precluding summary judgment; and (3) every reasonable inference must be indulged in favor of the nonmovant and any doubts resolved in its favor. Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-9 (Tex.1985).

DISCUSSION

Construction of the Notice Provision

In Wesco’s first issue, it argues that the trial court mistakenly interpreted the notice provisions contained in the ma-terialman’s lien statute by finding that Wesco did not comply with its terms. The statute sets out deadlines for giving notice of unpaid balances owed by subcontractors to materialmen to the original contractor and the property owner and requires timely notice as a prerequisite for a valid lien claim. For Wesco’s lien claim to be valid, Wesco must have effectively notified West-port by July 15 of any unpaid balance for materials delivered in May. Because it attempted to send a notice on July 11, before the deadline, Wesco argues that it timely notified Westport under the statute. When that notice was returned to Wesco for insufficient postage, and the notice was re-sent on July 25, 2001, Westport argued that there was no timely notice of lien for nonpayment for supplies delivered to J & D Electric prior to the end of May.

Wesco contends that its deposit of the notice with insufficient postage substantially complies with the statutory requirements of section 53.003 of the property code because Westport eventually received a notice. Despite the insufficient postage, it argues, Wesco deposited the notice within the statutory time period, and the statute requires nothing more. Westport responds that notice mailed with insufficient postage does not comply with statutory requirements because “sending” notice by mail necessarily includes attaching sufficient postage. Because Wesco failed to timely notify Westport of its lien claim, Westport argues, the lien it claims is invalid. We agree.

This case calls for interpretation of the notice provisions of Texas’s mechanic’s and materialman’s lien statute. See Tex. Prop. Code Ann. §§ 53.003, .056. Statutory interpretation is a legal matter subject to de novo review. Bragg v. Edwards Aquifer Auth., 71 S.W.3d 729, 734 (Tex.2002); Pacesetter Pools, Inc. v. Pierce Homes, Inc., 86 S.W.3d 827, 831 (Tex.App.-Austin 2002, no pet.) (citing Trinity Indus., Inc. v. Ashland, Inc., 53 S.W.3d 852, 868 (Tex.App.Austin 2001, pet. denied)).

“The primary rule of statutory interpretation is to ascertain and give effect to the intent of the legislature.” Southwestern Life Ins. Co. v. Montemayor, 24 S.W.3d 581, 583 (Tex.App.-Austin 2000, pet. denied) (citing Union Bankers Ins. Co. v. Shelton, 889 S.W.2d 278, 280 (Tex.1994)). If the legislature’s intent can be gathered from a reasonable interpretation of the statute as written, further implications are forbidden. Id. A court may not add words to a statute unless necessary to give effect to clear legislative intent. See Jones v. Liberty Mwt. Ins. Co., 745 S.W.2d 901, 902 (Tex.1988); Montemayor, 24 S.W.3d at 583. Courts should take into account the entire statute, not isolate disputed provisions. Texas Workers’ Compensation Commission v. Continental Casualty Company, 83 S.W.3d 901, 905 (Tex.App.-Austin 2002, no pet.). When the legislature employs a term in one section of a statute and excludes it in another, courts presume that the exclusion was intentional, and that the legislature had a reason for excluding it. Fireman’s Fund County Mut. Ins. Co. v. Hidi, 13 S.W.3d 767, 769 (Tex.2000).

Courts must also presume that the legislature intended a reasonable result. Montemayor, 24 S.W.3d at 585; Enochs v. Brown, 872 S.W.2d 312, 318 (Tex.App.-Austin 1994, no writ). We must be mindful of the consequences of possible constructions when interpreting a statute, Continental Casualty Co., 83 S.W.3d at 905, because courts should not construe statutes in a way that leads to foolish or absurd consequences. Montemayor, 24 S.W.3d at 584-85 (citing Meno v. Kitchens, 873 S.W.2d 789, 792 (Tex.App.-Austin 1994, writ denied)).

The materialman’s lien statute is liberally construed for the purpose of protecting laborers and materialmen. Industrial Indem. Co. v. Zack Burkett Co., 677 S.W.2d 493, 495 (Tex.1984) (per curiam); Hayek v. Western Steel Co., 478 S.W.2d 786, 795 (Tex.1972). Giving “ ‘liberal construction’ means to give the language of a statutory provision, freely and consciously, its commonly, generally accepted meaning, to the end that the most comprehensive application thereof may be accorded, without doing violence to any of its terms.” Maryland Cas. Co. v. Smith, 40 S.W.2d 913, 914 (Tex.Civ.App.-Dallas 1931, no writ). Liberal interpretation of a statute does not permit doing violence to the language in the statute. Deep E. Tex. Reg’l Mental Health & Mental Retardation Svcs. v. Kinnear, 877 S.W.2d 550, 563 (Tex.App.-Beaumont 1994, no writ).

Wesco argues first that the statute does not require postage to be affixed in order for notice to be effective, and that the absence of the word “postage” in the statute indicates a legislative intent that postage not be required for mailed notice to be considered effective. It offers two other provisions of the property code for comparison. The first allows notice to debtors by certified mail to be considered complete when that notice is deposited with the United States post office, “postage prepaid and addressed to the debtor” at its last known address. Tex. Prop.Code Ann. § 51.002(e) (West 2002). The second considers notice by lessors to tenants delivered when deposited with the United States post office, “properly addressed with postage prepaid.” Id. § 59.043(b) (West 2002).

Section 53.003, in contrast, is silent on the proper address or prepayment of postage. It allows notice by certified or registered mail to be considered effective upon “deposit or mailing of the notice in the United States mail in the form required.” The previous two provisions do not include the phrase “in the form required,” perhaps because they specify the form required: correctly addressed and with postage prepaid. Section 53.003 permits use of certified or registered mail and recognizes compliance with whatever form the U.S. Postal Service requires. The Postal Service requires postage. 39 C.F.R. § 3030 (2003).

Construing the statute to not require postage at all would produce absurd results. Here, the first attempt at notice would have been effective; there would be no need for Wesco to re-send the returned correspondence because the statute’s requirements for constructive notice would have already been met. According to that construction, “notice” that would never and could never arrive would nonetheless be considered effective against Westport.

In an attempt to temper this extreme result, Wesco asserts that its interpretation would indeed require some kind of notice. Because the statute should be liberally interpreted for the benefit of materi-almen, Wesco argues, its timely but postage-deficient notice should, combined with its postage-prepaid but untimely notice, qualify as substantial compliance with the statute. Wesco characterizes the return of its notice for insufficient postage as a delay in delivery by the Postal Service and argues that it substantially complied with the requirement that it mail its notice within the statutory time period because the initial mailing occurred on July 11, and the general purpose of the statute’s notice provision was achieved.

The liberal construction for which Wesco argues does not excuse failure to comply with the statutory requirement that the materialman provide “timely written notice.” See Texas Constr. Assocs., Inc., v. Balli, 558 S.W.2d 513, 518-19 (Tex.Civ. App.-Corpus Christi 1977, no writ). In Balli, the materialman failed to provide timely written notice of part of its claim to the owner and contractor. Id. Even though the contractor and the owner already had actual notice of the debt, liberal construction did not save the material-man’s lien from his failure to provide timely written notice. Id. Where, as here, the party entitled to notice does not have actual notice, the requirement should apply with as much or more force. Liberal construction cannot read the timing requirements out of the statute. Id. at 518.

Because Wesco tried to mail its notice, it claims its efforts constitute substantial compliance with the statute. It is true that substantial compliance is sufficient to perfect a materialman’s lien. First Nat’l Bank in Graham v. Sledge, 653 S.W.2d 283, 285 (Tex.1983). In Sledge, the court held that notice sent by regular instead of certified mail substantially complied with the notice requirements where it was undisputed that notice was actually received timely. Id. at 287; see also Occidental Neb. Fed. Sav. Bank v. East End Glass Co., 773 S.W.2d 687, 689 (Tex.App.San Antonio 1989, no writ) (“If in fact a written notice is received, the method by which the notice was delivered is immaterial.”). Substantial compliance excuses deficiencies in materialman’s lien notices such as addressing the notice to the wrong entity where it was sent to and received by the right person in a “system of interlocking corporate shells,” Occidental, 773 S.W.2d at 688, or failure to write the statement or bill in the usual or customary manner, where notice was timely. Hunt Developers, Inc. v. Western Steel Co., 409 S.W.2d 443, 449 (Tex.Civ.App.-Corpus Christi 1966, no writ).

However, “substantial compliance” is not a license to ignore statutory requirements. See Conn, Sherrod, & Co. Inc. v. Tri-Electric Supply Co., 535 S.W.2d 31, 34-35 (Tex.Civ.App.-Tyler 1976, writ ref'd n.r.e.) (holding that liberal interpretation and substantial compliance did not allow courts to alter meaning of statutory language, and that timely filing of affidavit without correct jurat was not substantial compliance as required to perfect material-man’s lien). In Sledge, for instance, the court was careful to note that, in looking for substantial compliance, it determined whether the liens at issue were valid by comparing the steps taken to perfect them with the statutory requirements. Sledge, 653 S.W.2d at 286. Failure to satisfy the notice provisions of the statute was fatal to the lien claim in Sledge; the court examined the only notices sent within the statutory time limit and decided that, because they did not contain the proper information, they did not substantially comply with the statute. Id. at 287.

The notice requirement, unlike the technical defects excused by substantial compliance, plays a critical role in achieving the purposes of this statute. The materialman’s lien statute is designed to protect contractors, subcontractors, and owners. Cabintree, Inc. v. Schneider, 728 S.W.2d 395, 396 (Tex.App.-Houston [1st Dist.] 1986, writ refd). The purposes of notice are: (1) to give those parties entitled to notice an opportunity to protect their interests, and (2) to prevent surprise. Philbrook v. Berry, 679 S.W.2d 651, 653 (Tex.App.-Houston [1st Dist.] 1984, orig. proceeding). There are many examples of courts applying the notice provision to protect the interests of the parties entitled to notice. In disputes between the material-man and the property owner, the owner is the party entitled to notice, and Texas courts apply the statute’s protections to the owner. In Raymond v. Rahme, 78 S.W.3d 552, 560 (Tex.App.-Austin 2002, no pet.), for example, the court required timely notice to the property owner in order for substantial compliance to make the lien valid. The court examined the only notice that arrived timely and found it inadequate because it did not contain a required warning to the owner that personal liability might attach if the debt remained unpaid. Id. at 561. Similarly, the Occidental court explains the object of the statute’s notice provision: “[t]he common sense reason for requiring a materialman to give notice to the owner is to let the owner know that the contractor has not paid the material-man ... and give[ ] the owner an opportunity to retain funds still under [the] owner’s control and to avoid the imposition of a statutory lien.” Occidental, 773 S.W.2d at 688. Wesco reads these cases to hold that only the oumer may claim protections from the notice provision. Wesco quotes Hunt Developers, which says, “[t]he Legislature did not intend that the materialman should lose his lien through the technicalities of a warning, where the owner was not misled to his prejudice,” to support the proposition that prejudice to the general contractor does not justify holding the ma-terialman to the statutory notice requirements of the statute. 409 S.W.2d at 449 (emphasis added). Because E & M Properties, the owner, received sufficient notice, Wesco argues, the lien can be valid as to Westport without timely notice to West-port. Under Wesco’s interpretation, the statute is not intended to protect the interests of general contractors. This reading would nullify the requirement that notice be provided to the general contractor.

Neither the principles of statutory construction nor case law permit this interpretation because it does violence to the terms of the materialman’s hen statute by reading the notice provision completely out of the statute. See Kinnear, 877 S.W.2d at 563; Maryland Cas. Co., 40 S.W.2d at 914. Furthermore, Wesco is mistaken in its assumption that the statute is not intended to protect the interests of general contractors. Hunt Developers itself holds substantial compliance “especially sufficient where no one has been misled to his prejudice.” Hunt Developers, 409 5.W.2d at 449 (emphasis added). Other cases indicate that where the materialman does not timely notify the general contractor entitled to notice under the material-man’s statute, the materialman has not substantially complied. See, e.g., Stone Fort Nat’l Bank v. Elliott Elec. Supply Co., 548 S.W.2d 441, 445 (Tex.Civ.App.-Tyler 1977, writ ref'd n.r.e.). In Stone Fort, the materialman claimed a lien because it “substantially complied” with the statute by properly and timely filing its affidavit and notifying the owner of the outstanding bill and of the affidavit. Id. The court disagreed with this contention of substantial compliance because it ignored notice to the original contractor. Id. The notice to the original contractor “is for the benefit of the original contractor. It is the only notice that the original contractor personally receives.” Id. at 445-46. Because the materialman failed to provide that notice, it had not complied with the requirements of the materialman’s lien statute. Id. at 446.

Wesco draws comparisons between this case and Don Hill Construction Company v. Dealers Electrical Supply Company, 790 S.W.2d 805 (Tex.App.-Beaumont 1990, no writ). In Don Hill, the materialman properly notified the property owner, but failed to timely notify the general contractor of part of its claim. Id. at 809-10. The owner, despite acknowledging it had received notice of the nonpayment, did not retain funds for the materialman, but paid the general contractor instead. Id. at 810. The court held that the properly notified owner could not escape its own liability because notice to the general contractor was untimely. Id. at 809. In this case, the owner, E & M Properties, has not escaped liability. E & M Properties properly withheld funds and eventually surrendered them. Don Hill does not stand for the proposition that the general contractor can be held liable under the materialman’s hen statute without proper notice because the materialman notified others; the general contractor in Don Hill argued that, because its notice was untimely, it could not be held liable for nonpayment under the materialman’s hen statute in the property code. Id. at 811. The court held the general contractor hable under a different theory not presented here. In other words, the court found the owner liable under the materiabnan’s lien statute, but the court did not find the general contractor liable under the materialman’s lien statute.

Texas’s materialman’s lien statute strikes a balance between interests of materialmen and general contractors by imputing notice to contractors to whom notice has been properly mailed. This scheme mirrors the evidentiary presumption that a properly mailed notice is received at its destination. When a sender has done everything necessary for notice to arrive, notice is considered effective as to the intended recipient. See Mosser v. Plano Three Venture, 893 S.W.2d 8, 11 (Tex.App.-Dallas 1994, no writ) (holding service by mail complete upon deposit of properly addressed envelope, postage prepaid, with Postal Service); Mobile Am. Sales Corp. v. Gradley, 612 S.W.2d 625, 628 (Tex.Civ.App.-Beaumont 1980, no writ) (reciting rule that presumption that mailed letter was received only arises upon proof of proper address, stamp, and mailing); Employers’ Nat’l Life Ins. Co. of Dallas, Tex. v. Willits, 436 S.W.2d 918, 921 (Tex.Civ.App.-Amarillo 1968, writ ref'd n.r.e.) (noting that letters properly addressed, stamped, and mailed are sufficient to raise presumption that they were received). This presumption relieves the sender of the difficult burden of showing that the recipient actually received notice. So does Texas’s materialman’s lien statute. See Buckner v. Anderson-Dunham, Inc., 482 S.W.2d 350, 351-52 (Tex.Civ.App.-Eastland 1972, no writ) (holding notice properly addressed and marked as postage paid certified mail was effective when mailed, not when received). Neither encompasses the absurd result that receipt of notice is imputed to a party to whom notice was never properly sent. The statute and case law treat certain parties as entitled to notice. Correspondence without postage will not and cannot ever reach the party entitled to notice. Imputing notice to the intended recipient when the sender had not done everything necessary for notice to arrive would be nonsensical and unfair, and would render the notice provisions of the statute a meaningless ritual.

In other contexts, Texas courts hold that mailing a notice requires proper postage. There has been a longstanding general rule that a mailed notice is only effective if it has been properly mailed, meaning properly addressed and bearing the correct amount of postage. Johnson Serv. Co. v. Climate Control Contractors, Inc., 478 S.W.2d 643, 645-46 (Tex.Civ.App.-Austin 1972, no writ). Notice that is required by statute before suspending a real estate license is effective when it is properly stamped, addressed, certified, and mailed. Tunnell v. Texas Real Estate Comm’n, 761 S.W.2d 123, 124 (Tex.App.-Dallas 1988, no writ); Texas Real Estate Comm’n v. Howard, 538 S.W.2d 429, 433 (Tex.Civ.App.-Houston [1st Dist.] 1976, writ ref'd n.r.e.). A lessor’s contractual duty to notify by mail that did not specify that proper postage be affixed was not satisfied by a letter that actually arrived at the correct address, but with postage due of $0.50. Rosenthal v. Executive Car Leasing Co. of Houston, 435 S.W.2d 168, 169-70 (Tex.Civ.App.-Houston [1st Dist.] 1968, no writ.) In these cases, insufficient postage meant ineffective notice.

The district court’s decision that Wesco’s lien is invalid because its attempt to timely notify Westport failed for lack of sufficient postage is consistent with the statute. The effort Wesco made did not satisfy the notice requirements mandated by the ma-terialman’s lien statute. We overrule the first issue.

Attorney’s Pees

In Wesco’s second issue, it argues that the district court abused its discretion in awarding Westport the full amount of its attorney’s fees under section 53.156 of the property code. The award of attorney’s fees rests in the sound discretion of the district court and will not be reversed absent a clear showing of abuse of discretion. Oake v. Collin County, 692 S.W.2d 454, 455 (Tex.1985); West Tex. Rehab. Ctr. v. Allen, 810 S.W.2d 870, 874 (Tex.App.-Austin 1991, no writ). A trial court abuses its discretion when it acts unreasonably and arbitrarily or without reference to guiding principles. Beaumont Bank, N.A v. Butler, 806 S.W.2d 223, 226 (Tex.1991); Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex.1985). In a proceeding to foreclose a materialman’s lien or declare such a hen or claim invalid, the court may award costs and reasonable attorney’s fees that are equitable and just. Tex. Prop. Code Ann. § 53.156 (West 2002).

Wesco argues that the district court improperly awarded attorney’s fees because Westport incurred the majority of those fees after and because of the court’s error. The district court initially denied West-port’s summary motion to remove an invalid or unenforceable lien, but later granted Westport’s motion for partial summary judgment made on the same grounds: untimely notice because of insufficient postage. At the attorney’s fees hearing, the district court acknowledged that granting the first motion would have resulted in lower attorney’s fees. Wesco puts great emphasis on the court’s comment: “Some of this burden might need to be mine.”

Westport responds by identifying a variety of factors the district judge should consider in determining attorney’s fees, including the quality of legal work, the time and effort required, the nature and intricacies of the case, the extent and type of the attorney’s responsibilities, and any benefits from the litigation. See Del Valle Indep. Sch. Dist. v. Lopez, 863 S.W.2d 507, 513 (Tex.App.-Austin 1997, pet. denied). Consideration of such factors is important in determining attorney’s fees. Arthur Andersen & Co. v. Perry Equip. Corp., 945 S.W.2d 812, 818 (Tex.1997); Lubbock County v. Strube, 953 S.W.2d 847, 858 (Tex.App.-Austin 1997, pet. denied). Where, as here, the court took evidence and considered such factors, it did not act without reference to guiding principles.

Obviously, disposing of any case earlier would result in lower attorney’s fees for all involved. Not all cases are resolved as efficiently as, in hindsight, they could have been. However, the touchstone of whether attorney’s fees can be awarded is whether they were reasonable and necessary at the time the party incurred them. See Stewart Title Guar. Co. v. Sterling, 822 S.W.2d 1, 10 (Tex.1991). This determination of reasonableness is a question for the trier of fact. Id. at 12. The district court found that the fees were reasonable and necessary, including those incurred between the initial summary motion and the motion for partial summary judgment. Wesco continued to pursue its lien. Westport had no choice but to continue to incur attorney’s fees in defending its position. We cannot say that the district court acted unreasonably, arbitrarily, or without reference to guiding principles in so finding. We leave the award of attorney’s fees undisturbed.

CONCLUSION

We hold that the district court did not err in granting summary judgment invalidating Wesco’s lien because Wesco failed to provide timely notice. The grant of attorney’s fees to Westport was not unreasonable, arbitrary, or made without reference to guiding principles. Accordingly, we affirm the district court on both points.

      . "If notice is sent by registered or certified mail, deposit or mailing of the notice in the United States mail in the form required constitutes compliance with the notice requirement.” Tex. Prop.Code Ann. § 53.003 (West 2002).

      . "A claimant other than an original contractor must give the notice prescribed by this section to be valid.” Tex. Prop.Code Ann. § 53.056(a) (West 2002).
      “If the lien claim arises from a debt incurred by a subcontractor, the claimant must give to the original contractor written notice of the unpaid balance. The claimant must give the notice not later than the 15 th day of the second month following each month in which all or part of the claimant's labor was performed or material delivered....” Id. § 53.056(b) (West 2002).

      . "Postage must be fully prepaid on all mail at the time of mailing, except as authorized by law or this Schedule. Except as authorized by law or this Schedule, mail deposited without prepayment of sufficient postage shall be delivered to the addressee subject to payment of deficient postage, returned to the sender, or otherwise disposed of as specified by the Postal Service. Mail deposited without any postage affixed will be returned to the sender without any attempt at delivery.” 39 C.F.R. § 3030 (2003).

      . Here Wesco uses “notice” and "warning” interchangeably, but the warning is a portion of the notice to the owner that explains that personal liability might attach if the bill remains unpaid. See Hunt Developers, Inc. v. Western Steel Co., 409 S.W.2d 443, 446-47 (Tex.Civ.App.-Corpus Christi 1966, no writ).

      . “If the lien claim arises from a debt incurred by a subcontractor, the claimant must give to the original contractor written notice of the unpaid balance. The claimant must give the notice not later than the 15 th day of the second month following each month in which all or part of the claimant's labor was performed or material delivered....” Tex. Prop.Code Ann. § 53.056(b).

      . The Don Hill court held that, because the owner paid the general contractor after receiving the materialman's notice of lien, the funds it paid were trust funds held for the benefit of the materialman, and transfer of those funds did not change their character. Don Hill Constr. Co. v. Dealers Elec. Supply Co., 790 S.W.2d 805, 811-12 (Tex.App.-Beaumont 1990, no writ). Westport did not receive the contested amount in trust funds from E & M Properties, and neither party raises the issue of trust funds here. Accordingly, we do not reach it.


source: Caselaw Access Project

author: BEA ANN SMITH, Justice.

license: Public Domain

text:
    Robert E. WILLIAMS, Timothy David Williams, Terry Wayne Tausch, Tommy Joe Robinson, Starley Eugene Shugart, and Charles J. Giammalva, Appellants, v. TEXAS STATE BOARD OF ORTHOTICS & PROSTHETICS; Donna S. Flippin, Individually and in her capacity as Executive Director of the Texas Board of Orthotics and Prosthetics; and Texas Department of Health, Appellees.
    No. 03-03-00606-CV.
    Court of Appeals of Texas, Austin.
    April 8, 2004.

      Jane M.N. Webre, William J. Albright, Jeffrey G. Henry, Scott, Douglass & McConnico, LLP, Austin, for Appellants.
    Robert F. Johnson, III, Asst. Atty. Gen., General Litigation Division, Austin, for Appellees.
    Before Justices KIDD, B.A. SMITH and PEMBERTON.
   OPINION

BEA ANN SMITH, Justice.

This case concerns the validity of certain rules passed by the Texas State Board of Orthotics and Prosthetics (the Board) that allow practicing orthotists to obtain licenses under the new Orthotics and Prosthet-ics Act (the Act) through exemptions from the formal licensing requirements. See Tex. Occ.Code Ann. §§ 605.001-.411 (West 2004). Appellants Robert E. Williams, Timothy David Williams, Terry Wayne Tausch, Tommy Joe Robinson, Starley Eugene Shugart, and Charles J. Giammalva are individuals who had been practicing orthotics for several years before the passage of the Act in 1997. Appellants sought declaratory relief that the Board had exceeded its statutory authority in promulgating the challenged rules. They appeal the district court’s summary judgment in favor of the Board, declaring the rules valid. For the reasons that follow, we reverse the judgment of the district court and declare the rules invalid.

BACKGROUND

The practice of orthotics was not regulated in Texas until the Act was passed in 1997, creating the Board and requiring all persons who practice orthotics in Texas to hold a license issued by the Board. Act of May 23, 1997, 75th Leg., R.S., ch. 1288, § 1, 1997 Tex. Gen. Laws 4914, 4914 (codified at Tex. Occ.Code Ann. §§ 605.001-.411 (West 2004)). To obtain a license to practice orthotics, a licensee must meet extensive requirements pertaining to training, education, clinical residency, and examinations. See Tex. Occ.Code Ann. § 605.252(b) (West 2004). The Act provides for a few exemptions to the usual licensing requirements, allowing a person to obtain a license without meeting any of the requirements of section 605.252. Id. § 605.254 (West 2004). One of these exemptions “grandfathers” a practicing or-thotist who had been providing “comprehensive orthotic care” for at least three years prior to the Act’s passage. See id. § 605.254(a)(1)(A); Bloom v. Texas State Bd. of Exam’rs of Psychologists, 492 S.W.2d 460, 461 (Tex.1973) (“purpose of grandfather provisions in licensing acts is to exempt from statutory regulations those members who have acceptably followed their profession or trade for a required number of years”). Appellants had all practiced orthotics for three or more years prior to 1997.

In early 1999, appellants filed applications with the Board seeking licenses under the grandfather exemption. See Tex. Oee.Code Ann. § 605.254(a)(1)(A). After some time, the Board denied each appellant a license, finding that none of them had provided “comprehensive orthotic care.” Appellants requested hearings on the denial of their licenses. At some point, each appellant informed the Board that he wished to amend his application to be considered for a second exemption as a person possessing “unique qualifications.” See id. § 605.254(a)(2) (West 2004).

While the hearing proceedings were still pending, appellants filed this declaratory-judgment action in district court challenging as invalid the Board’s rules governing the licensing exemptions. In particular, they challenged the Board’s rule 821.2(8) defining “comprehensive orthotic care.” See 22 Tex. Admin. Code § 821.2(8) (2003). Appellants contended that the rule’s definition of “comprehensive orthotic care” was too inflexible, requiring them to have experience in manufacturing orthotic devices to procure a license under the grandfather exemption, when it was common practice before the Act’s passage for orthotists to fit patients with pre-fabricat-ed devices. They also contested the validity of rule 821.15, describing the exemption for “unique qualifications,” because it merely duplicated the requirement of providing comprehensive orthotic care. See 22 Tex. Admin. Code § 821.15 (2003). Appellants urged that in formulating the rules the Board exceeded its authority by violating the plain language of the Act and promulgating rules that are arbitrary and unconstitutionally vague. Appellants also claimed that the rules are invalid because the Board did not follow certain procedural requirements of the Texas Administrative Procedure Act (APA) in promulgating them. See Tex. Gov’t Code Ann. §§ 2001.024(a)(8), .033, 2006.001(2), .002 (West 2000).

Appellants and the Board filed cross-motions for summary judgment. The Board asserted that the rules were valid and that in any case, appellants had no standing to challenge the rules. The district court granted summary judgment in favor of the Board, finding that appellants have standing to challenge the rules and declaring that the challenged rules are valid because the Board had not exceeded the scope of its authority, the rules are not unconstitutional, and the Board substantially complied with the APA’s procedural requirements. Appellants reassert their challenges to the rules on appeal.

DISCUSSION

Standard of review

The propriety of a ruling on a traditional motion for summary judgment raises a question of law, which we review de novo. Natividad v. Alexsis, Inc., 875 S.W.2d 695, 699 (Tex.1994); see Tex.R. Civ. P. 166a(c). The proper inquiry on appeal is whether the movant, in seeking summary judgment, fulfilled its initial burden of establishing that no genuine issue of material fact exists and that judgment should be granted as a matter of law. Arlington Indep. Sch. Dist. v. Texas Attorney Gen., 37 S.W.3d 152, 156 (Tex.App.-Austin 2001, no pet.) (citing City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 675-79 (Tex.1979)). Evidence is viewed in the light most favorable to the non-movant with all reasonable inferences indulged and any doubts resolved in favor of the non-movant. Nixon v. Mr. Prop. Mgmt. Co., Inc., 690 S.W.2d 546, 548-49 (Tex.1985).

Where both parties file motions for summary judgment and the court denies one and grants the other, the reviewing court should review the summary-judgment evidence presented by both sides and decide all questions presented and render the judgment that the trial court should have rendered. City of Garland v. Dallas Morning News, 22 S.W.3d 351, 356 (Tex.2000).

The Act

The licensing portion of the Act begins by providing that “[a] person may not practice, attempt to practice, or offer to practice orthotics ... or in any way hold the person out as being able to practice orthotics ... unless the person holds a license issued by the [Bjoard.” Tex. Occ. Code Ann. § 605.251 (West 2004). The Act then provides the criteria for license eligibility, which include passing a written and practical examination and holding a bachelor’s degree in orthotics and pros-thetics or a bachelor’s degree in any subject and an orthotic or prosthetic certificate issued by a practitioner education program, among other requirements. See id. § 605.252.

The Act also provides for “Exemptions From or Substitutes for License Requirements.” Id. § 605.254. Section 605.254 provides a complete exemption from the license requirements of section 605.252 if the applicant is a Texas resident who

(1) applies for the exemption not later than the 181st day after the date on which the [Bjoard’s initial rules are finally adopted and:
(A) has provided comprehensive or-thotic or prosthetic care for at least three years before the date of application, including practicing orthotics or prosthetics in this state for the year preceding that date; or
(B) has provided comprehensive or-thotic and prosthetic care for at least six years, including practicing orthotics and prosthetics in this state for the year preceding the application date; or
(2) presents evidence satisfactory to the [Bjoard that the person possesses unique qualifications to practice or-thotics, prosthetics, or orthotics and prosthetics.

Id. § 605.254 (emphasis added). The first exemption may be used by people who have provided “comprehensive orthotic care” for at least three years prior to applying for a license. Referred to as a “pathway” to licensure by both the Board and appellants, this exemption is appropriately considered a “grandfather” provision because it countenances a way for people who have been practicing orthotics to continue their profession under their former methods without having to conform to a new statutory requirement. See Bloom, 492 S.W.2d at 461. Grandfather exemptions “are granted upon the presumption that those already practicing their profession were lawfully and satisfactorily performing their services on the date the regulatory act became effective.” Id. The second pathway, by not providing a window of time in which applicants must apply or requiring a specific number of years’ practice, is not a grandfather provision but offers a general alternative to the usual licensing requirements to applicants with “unique qualifications.”

The rules

The legislature expressly granted the Board the power to propose and adopt rules to carry out its duties under the Act. Tex. Occ.Code Ann. § 605.154 (West 2004). However, an agency’s rules may be held invalid despite the agency’s attempt to perform its statutory duties. “An agency rule is invalid if (1) the agency had no statutory authority to promulgate it; (2) it was not promulgated pursuant to proper procedure; or (3) it is unconstitutional.” Railroad Comm’n v. ARCO Oil & Gas Co., 876 S.W.2d 473, 477 (Tex.App.Austin 1994, writ denied). In deciding whether an administrative agency has exceeded its rulemaking powers, the determinative factor is whether the rule’s provisions are “in harmony” with the general objectives of the statute. Edgewood Indep. Sch. Dist. v. Meno, 917 S.W.2d 717, 750 (Tex.1995); Gerst v. Oak Cliff Sav. & Loan Ass’n, 432 S.W.2d 702, 706 (Tex.1968); Patient Advocates of Tex. v. Texas Workers Comp. Comm’n, 80 S.W.3d 66, 75 (Tex.App.-Austin 2002, pet. granted). In determining whether a rule is in harmony with an act’s general objectives, courts look to all applicable provisions of that act, rather than only one particular section. Gerst, 432 S.W.2d at 706; Patient Advocates, 80 S.W.3d at 75. As in all questions of statutory interpretation, our goal is to determine and give effect to the legislature’s intent. Albertson’s, Inc. v. Sinclair, 984 S.W.2d 958, 960 (Tex.1999).

Grandfather exemption

The Act allows licensure grandfathering for applicants who have provided “comprehensive orthotic care” for three years, but does not define that term. In rule 821.2, the Board adopted the following definition of “comprehensive orthotic care”:

Comprehensive orthotic care — Includes: the evaluation of patients with a wide range of lower limb, upper limb and spinal pathomechanieal conditions, respectively; the taking of measurements and impressions of the involved body segments; the synthesis of observations and measurements into a custom orthotic design; the selection of materials and components; the fabrication of therapeutic or functional orthoses including plastic forming, metal contouring, cosmetic covering, upholstering and assembling; the fitting and critique of the orthosis; the appropriate follow-up, adjustments, modifications and revisions in an orthotic facility; the instructing of patients in the use and care of the ort-hoses; the maintaining of current encounter notes and patient records. The practitioner with comprehensive orthotic care experience must, within the limits set by the Texas Board of Orthotics and Prosthetics, apply all of the foremen-tioned experiential elements to the ort-hoses listed below. At least two-thirds of the orthoses must be included: foot orthosis; ankle-foot orthosis; knee-ankle-foot orthosis; hip-knee-ankle-foot or-thosis; hip orthosis; knee orthosis; cervical orthosis; cervical-thoracic orthosis; thoracic-lumbar-sacaral orthosis; lumbar-sacral orthosis; cervical-thoracic-lumbar-sacral orthosis; hand orthosis; wrist-hand orthosis; shoulder-elbow or-thosis; shoulder-elbow-wrist-hand ortho-sis.

^ ^eX- Admin. Code § 821.2(8).

Appellants take issue with this definition because it requires a person seeking a grandfather exemption to have applied all of the listed “experiential elements,” including the fabrication of orthoses. See id. (practitioner must “apply all of the fore-mentioned experiential elements to the orthoses listed below”). Appellants assert that the requirement that a person have engaged in the manufacture of orthoses does not provide them a meaningful opportunity to demonstrate their competence, as grandfather provisions must do. See Berger v. Board of Psychologist Exam’rs, 521 F.2d 1056, 1068 (D.C.Cir.1975) (applicant engaged in practice of psychology prior to regulatory act’s passage must be accorded fair opportunity to demonstrate professional skill according to reasonable standards before denied right to continue practice to avoid due-process violation); see also Bloom, 492 S.W.2d at 461. The issue we must resolve is whether the Board’s definition of this phrase is in harmony with the Act, or whether the definition exceeds the scope of the Board’s authority, thus rendering invalid the portion of rule 821.2 defining “comprehensive orthotic care” and other rules incorporating that definition.

Appellants contend that the definition is too inflexible and forecloses the grandfather exemption to them because they do not have experience fabricating orthoses, but do have extensive experience custom fitting their patients with pre-fabricated orthoses. They assert that the rule’s definition makes the grandfather exemption meaningless for an entire group of experienced orthotists because it was common practice before the Act’s passage to custom fit patients with pre-fabricated orthos-es. Furthermore, they assert that the rule discriminates against small businesses and solo practitioners, who have no manufacturing facilities and thus cannot manufacture their own orthoses.

Appellants first support their argument by referring to the definition of “orthotics” in the Act: “the science and practice of measuring, designing, fabricating, assembling, fitting, adjusting, or servicing an orthosis_” Tex. Occ.Code Ann. § 605.002(14) (West 2004) (emphasis added). They urge that the use of the word “or” implies that a person need not engage in all of the listed activities to be practicing “orthotics” under the Act.

The definition in the Act of “orthosis” indicates a legislative acknowledgment that some orthotists who do not personally fabricate orthoses may still lawfully practice orthotics. An orthosis is “a custom-fabricated or custom-fitted medical device designed to provide for the support, alignment, prevention, or correction of a neuro-muscular or musculoskeletal disease, injury, or deformity.” Id. § 605.002(12) (West 2004) (emphasis added). Because the definition of orthosis includes either a eustom-fabricated or a custom-fitted device, and the various verbs contained in the definition of orthotics modify the noun “ortho-sis,” the reasonable conclusion is that a person can engage in the practice of or-thotics but deal entirely with custom-fitted rather than custom-fabricated devices. If a person deals entirely with custom-fitted devices, by implication that person does not engage in fabrication. Thus, we begin with the presumption that fabrication of orthoses is not an indispensable component of the lawful practice of orthotics.

Yet, argues the Board, the Act’s grandfather exemption does not require merely the practice of orthotics for three years, but the provision of comprehensive orthotic care. “Comprehensive,” continues the Board, means “covering a matter under consideration completely or nearly completely: accounting for or comprehending all or virtually all pertinent considerations: INCLUSIVE.” Webster’s Third New International Dictionary 467 (Philip Babcock Gove ed.1986); see also The American Heritage Dictionary of the English Language 274 (William Morris ed. 1973) (“Including or comprehending much; large in scope or content”). Thus, the Board concludes that its rule properly required all of the seven activities listed in the Act’s definition of orthotics to qualify for comprehensive orthotic care.

Furthermore, continues the Board, it properly considered “comprehensive” to include experience with manufacturing orthoses because licensure under the Act requires a bachelor’s degree from an educational program accredited by the Commission on Accreditation of Allied Health Education Programs (CAAHEP). See Tex. Occ.Code Ann. § 605.252(b) (West 2004). The current CAAHEP standards for accreditation include teaching topics such as computer-aided design and manufacture of orthoses, materials and components, and the fabrication process. See Commission on Accreditation of Allied Health Education Programs, Standards and Guidelines for an Accredited Educational Program for the Orthotist and Prosthetist, at http://www/caahep.org/caa-hep/ aeeredit.asp?doc=OP_SG, last visited Apr. 2, 2004. The Board relies on these accreditation standards to include fabrication in its definition of comprehensive orthotic care, asserting that it is a reasonable requirement. See Bullock v. Hewlett-Packard Co., 628 S.W.2d 754, 756 (Tex.1982) (“Courts must uphold ‘legislative’ administrative rules if they are reasonable. The rules need not be, in the court’s opinion, wise, desirable, or even necessary.”). The Board also implies that by referencing the CAAHEP standards, the legislature intended its definition of “comprehensive” to be compatible -with and equivalent to those standards.

However, this definition of comprehensive orthotic care ignores the basic premise that the grandfather exemption provides a means for an applicant to obtain a license without meeting the educational requirements under the Act. The Act expressly provides that a license holder under the grandfather exemption “is subject to the license renewal requirements established by the [Bjoard, other than the academic, clinical training, and examination requirements, which the [Bjoard may not impose as a condition of the person’s license.” Tex. Occ.Code Ann. § 605.254(c) (West 2004) (emphasis added).

The Act requires the provision of comprehensive orthotic care, not the comprehensive practice of orthotics or the practice of comprehensive orthotics. This is an important distinction. Indeed, the statutory exemption itself refers to both care and the practice of orthotics, but only “care” is modified by the word comprehensive: an applicant must have “provided comprehensive orthotic ... care for at least three years before the date of the application, including practicing orthotics ... in this state for the year preceding that date.” Id. § 605.254(1)(A). We must presume that the legislature’s choice of the phrase “orthotic care” was intentional, especially in light of its subsequent use in the same subsection of the phrase “practicing or-thotics.” See Gables Realty Ltd. P’ship v. Travis Cent. Appraisal Dist., 81 S.W.3d 869, 873 (Tex.App.-Austin 2002, pet. denied).

Appellants point to the Act’s definition of “profession of orthotics” to support their position that comprehensive orthotic care does not require fabrication of orthoses:

‘Profession of orthotics or prosthetics’ means allied health care medical services used to identify, prevent, correct, or alleviate acute or chronic neuromus-cular or musculoskeletal dysfunctions of the human body that support and provide rehabilitative health care services concerned with the restoration of function, prevention, or progression of disabilities resulting from disease, injury, or congenital anomalies. Orthotic and prosthetic services include direct patient care, including consultation, evaluation, treatment, education, and advice to maximize the rehabilitation potential of disabled individuals.

Tex. Occ.Code Ann. § 605.002(16) (West 2004) (emphasis added).

We agree with appellants that “comprehensive orthotic care” more properly encompasses the extensive care of a patient, not whether the orthotist personally manufactures an orthotic device. The use of the word “care” implies interactive patient contact, and the modifiers “orthotic” and “comprehensive” imply that such contact runs the gamut from meeting a patient for the first time, listening to her orthotic concerns, evaluating her needs, advising her as to alternative treatments, treating her ailments, and following up as necessary. It implies caring for an orthotic patient from start to finish. It does not imply donning a tool belt and contouring metal or forming plastic. Even the bill analysis of the 1997 legislation reveals a concern with direct patient care, rather than whether the orthotist manufactures orthoses: “An orthotist is a health care professional who provides care to a patient who requires a brace. The orthotist evaluates the individual’s situation and recommends the best type of orthosis to treat that patient.” See, e.g., Senate Comm. on State Affairs, Bill Analysis, Tex. S.B. 291, 75th Leg., R.S. (1997).

Based on a reading of the entire Act, we conclude that its objectives include providing for the regulation of the orthotic and prosthetic industry, protecting the public against unqualified practitioners, and bringing about uniformity in the level of care orthotists provide. However, an equally important objective is to initiate a new regulatory scheme without unconstitutionally disturbing the practice of already competent orthotists — hence the grandfather exemption. We must, if possible, construe statutes to avoid constitutional infirmities. General Servs. Comm’n v. Little-Tex Insulation Co., Inc., 39 S.W.3d 591, 598 (Tex.2001); Texas Bldg. Owners & Managers Ass’n v. Public Util. Comm’n, 110 S.W.3d 524, 536 (Tex.App.-Austin 2003, pet. denied). Requiring individuals who have been providing orthotic care for several years to have personally manufactured orthoses does not further the purposes of the Act. The rule’s definition of comprehensive orthotic care is at odds with the legislature’s intent that already practicing orthotists be allowed a reasonable opportunity to demonstrate them competency. See Berger, 521 F.2d at 1056; see also Bloom, 492 S.W.2d at 461. We reject the Board’s argument that a person must have experience in fabrication or manufacturing to have provided “comprehensive orthotic care” under the grandfather exemption. We therefore hold that rule 821.2(8), as well as former rules 821.11 and 821.13, are invalid because they are not in harmony with the general objectives of the Act.

A. Unique qualiñcations

The other rule appellants challenge is rule 821.15, which describes the “unique qualifications” a person must possess to qualify for licensure under the second pathway to exemption. See Tex. Occ.Code Ann. § 605.254(a)(2); 22 Tex. Admin. Code § 821.15. That rule provides:

(b) Unique qualifications. A uniquely qualified person means a resident of the State of Texas who, through education, training and experience, is as qualified to perform ... orthotic care as those persons who obtain licensure pursuant to the Act, § 605.252.
(1) The [B]oard ... will determine whether a person is uniquely qualified on a case-by-ease basis based on the information supplied by the applicant and other information deemed relevant by the [B]oard.
(2) The [B]oard mil not approve a person as possessing unique qualifications who has not provided comprehensive orthotic care ... to the extent required by the Act, § 605.254(a).

22 Tex. Admin. Code § 821.15 (emphasis added).

Appellants contend that this rule .is invalid because by utilizing the same “comprehensive orthotic care” standard as the grandfather exemption, it collapses the second pathway into the first, rendering the second exemption redundant and superfluous. Appellants assert that the “unique qualifications” exemption must entail a different standard than the grandfather exemption, because otherwise the legislature would not have created two distinct exemptions. If the standards were the same, there would be no need for two “pathways.”

We agree. The statute clearly envisions a second, alternate way for a person to obtain a license without meeting the new licensing requirements, apart from the grandfather provision. In construing a statute, we must ascertain and give effect to the legislature’s intent for the provision we are construing. See Fleming Foods of Tex., Inc. v. Rylander, 6 S.W.3d 278, 284 (Tex.1999). The legislature’s intent is determined by reading the language used in the particular statute and construing the statute in its entirety. See Taylor v. Firemen’s & Policemen’s Civil Serv. Comm’n, 616 S.W.2d 187, 190 (Tex.1981). We will avoid a construction that creates a redundancy or renders a provision meaningless. See Larry Koch, Inc. v. Texas Natural Res. Conservation Comm’n, 52 S.W.3d 833, 838 (Tex.App.Austin 2001, pet. denied); see also In re Missouri Pac. R.R. Co., 998 S.W.2d 212, 216 (Tex.1999) (legislature is presumed not to have done useless act). Furthermore, we will not read into an act a provision that is not there, except to give effect to clear legislative intent. In re Bell, 91 S.W.3d 784, 790 (Tex.2002).

By defining “unique qualifications” to mean having provided “comprehensive orthotic care,” the Board has inserted into the second exemption a provision that is not there. We must presume that every word, phrase, and expression in a statute was deliberately chosen and that the words excluded from the statute are done so purposefully. See Gables, 81 S.W.3d at 873; Cameron v. Terrell & Garrett, Inc., 618 S.W.2d 535, 540 (Tex.1981). Had the legislature intended the requirements under both exemptions to be the same, it would have created only one exemption, not two. Yet, the legislature clearly intended two distinct pathways: a grandfather exemption, for those who had “acceptably followed their profession for a required number of years,” see Bloom, 492 S.W.2d at 461, and a general exemption, for other types of applicants who do not meet the usual requirements but are nonetheless “uniquely qualified” to practice orthotics. The Board’s rule 821.15 is not in harmony with the Act’s intent to allow for two distinct, alternative means to become licensed without meeting the Act’s licensing requirements.

Appellants further assert that this rule is invalid because its other provision — that the Board will determine whether a person is uniquely qualified on a case-by-case basis — is unconstitutionally vague. While purporting to “describe the unique qualifications a person must possess,” it gives no such description and provides no standard for when a person would qualify under rule 821.15(b)(1). See 22 Tex. Admin. Code § 821.15(b)(1). Although the Act’s use of the word “unique” indicates that whether an applicant meets the statutory requirement will necessarily entail a case-by-case determination, we agree with appellants that the rule should provide some guidance to applicants as to what qualifications will pass muster. However, we need not consider this argument because we hold that the rule’s incorporation of the “comprehensive orthotic care” standard renders rule 821.15 invalid.

Because we hold that each of the challenged rules is invalid due to the Board’s exceeding its statutory authority, we do not reach appellants’ other two issues: that the Board did not follow certain procedural requirements of the APA in promulgating them and that the rules are unconstitutional.

CONCLUSION

The Board’s rule 821.15 and the portion of rule 821.2 defining “comprehensive or-thotic care” are invalid because in promulgating them, the Board exceeded its statutory authority. We therefore reverse the district court’s grant of summary judgment in favor of the Board and render judgment in favor of appellants that the challenged rules are invalid.

      . This case concerns only orthotics, not pros-thetics.

      .For some of the appellants, the Board indicated specifically why the requirement of comprehensive orthotic care had not been met: “All your employment has been at Relay Medical, a durable medical equipment company. Durable medical equipment companies have historically sold ‘off-the-shelf equipment and would not allow for the provision of comprehensive care.”

      . Appellants allege that the Board provided neither a reasoned justification for the rules, see Tex. Gov’t Code Ann. § 2001.033 (West 2000), nor a small-business impact statement, see id. §§ 2001.024(a)(8), 2006.001(2), .002 (West 2000).

      . The Board has abandoned its jurisdictional argument on appeal.

      . Appellants also challenge three other Board rules in which the definition appears, including two that are no longer in effect (due to the 180-day grandfathering window) but that are relevant to this dispute. For example, former rule 821.11 mirrored section 605.254(a)(1)(A) of the Act by providing that a person is exempted from the usual licensing requirements if the person has provided "comprehensive orthotic care” for at least three years. See 23 Tex. Reg. 11136 (1998) (adopted), repealed by 27 Tex. Reg. 10935 (2002) (former 22 Tex. Admin. Code § 821.11) (Tex. Bd. of Orthot-ics & Prosthetics). It is former rule 821.11 under which appellants initially applied. See also id. at 11137 (former 22 Tex. Admin. Code § 821.13) (mirroring section 605.254(b) of Act, which allows for exemption if person has provided comprehensive orthotic care for less than three years but passes examination). Rule 821.15, while still in effect, implements section 605.254(a)(2) of the Act and is directly addressed infra.

      . Even the rule expands upon the seven activities listed in the definition of orthotics by additionally requiring "the instructing of patients in the use and care of the orthoses," "the maintaining of current encounter notes and patient records,” and "the evaluation of patients.” See 22 Tex. Admin. Code § 821.2(8). Each of these activities goes to the patient-practitioner relationship, which appellants assert reaches the intent behind the grandfather exemption, as discussed infra.

      . The Board urges that the exemptions are distinct by virtue of the grandfather provision being available only until 180 days after the Board's promulgation of rules. See Tex. Occ. Code Ann. § 605.252(a)(1). We reject the implication that the only difference between the exemptions is the .time window in which an applicant must apply. The legislature's use of distinct language in the first and second exemptions indicates otherwise. See Gables Realty Ltd. P'ship v. Travis Cent. Appraisal Dist., 81 S.W.3d 869, 873 (Tex.App.-Austin 2002, pet. denied) (courts must presume that every word, phrase, and expression in statute was deliberately chosen).

      . Likewise, former rules 821.11 and 821.13, which applied during the period before the grandfather exemption expired, are also invalid.


author: W. KENNETH LAW, Chief Justice.

text:
    Bobby HAWTHORNE, Appellant, v. COUNTRYWIDE HOME LOANS, INC. and Countrywide Insurance Services of Texas, Inc., Appellees.
    No. 03-03-00206-CV.
    Court of Appeals of Texas, Austin.
    May 6, 2004.
    Rehearing Overruled July 15, 2004.

      Larry F. York, Scott K. Field, York, Keller & Field, LLP, Austin, for appellant.
    Robert T. Mowrey, Thomas G. Yoxall, C. Don Clayton Jr., Locke, Liddell & Sapp, L.L.P., Dallas, for appellees.
    Before Chief Justice LAW, Justices B.A. SMITH and PATTERSON.
   OPINION

W. KENNETH LAW, Chief Justice.

We withdraw our opinion and judgment issued on January 8, 2004, and substitute this one in its place, and we overrule the motion for rehearing.

This case concerns the scope of disclosure authority a borrower may give to a lender under article 21.48A of the insurance code. See Tex. Ins.Code Ann. art. 21.48A, §§ 1(1), 2(c) (West Supp.2004). Appellant Bobby Hawthorne granted authority to his original mortgage company to “to furnish information contained in [his] policy of insurance to any person ... [the Lender] deems advisable for the purpose of quoting rates and complying with the covenants of the Deed of Trust.” When Countrywide Home Loans, Inc. (Countrywide Home Loans), a purchaser of the mortgage on his house, allegedly shared his insurance information with its subsidiary insurance company, Hawthorne brought this suit in district court. He argued that he granted that authority only to the lender named within the document in which the grant was made and that authority could not extend to Countrywide Home Loans. The district court granted summary judgment in favor of Countrywide Home Loans, which Hawthorne appeals. We affirm the judgment of the district court.

BACKGROUND

Hawthorne and his wife, Mary Keller, purchased their home in Austin in 1991. Two years later, on April 13, 1993, Hawthorne and Keller refinanced their mortgage loan through Mission Mortgage of Texas, Inc. (Mission Mortgage). Mission Mortgage is identified as their lender in the note, the Deed of Trust, and other documents relating to the loan. As part of the closing on the refinanced loan, Hawthorne and Keller signed a “Mortgagor’s Affidavit,” which defined “Lender” as Mission Mortgage and in which they granted

specific authority to Lender to furnish information contained in our policy of insurance to any person we designate in writing or they deem advisable for the purpose of quoting rates and complying with the covenants of the Deed of Trust.

Countrywide Home Loans is not mentioned in the Mortgagor’s Affidavit or in any other of the closing documents.

Around the time of closing, Mission Mortgage transferred the servicing rights to the loan to Countrywide Home Loans. At the time of closing, Hawthorne and Keller signed a “Notice of Assignment, Sale, or Transfer of Servicing Rights,” in which they recognized that Countrywide Home Loans would be the new servicer of the loan. In addition, at that time Hawthorne and Keller received a letter indicating that they should forward all loan payments to Countrywide Home Loans.

In August 1999 and again in June 2001, Countrywide Insurance Services of Texas, Inc. (Countrywide Insurance), sent homeowners’ insurance solicitation letters to Keller. These letters referenced the loan number of the mortgage of Keller and Hawthorne. They also provided quotes on homeowners’ insurance based on coverages similar to the ones in force with their then-current carrier.

Hawthorne then filed suit, alleging violations of article 21.48A, which provides in pertinent part:

No Lender shall use or permit the use of any of the information taken from a policy of insurance insuring the property of a Borrower for the purpose of soliciting insurance business from the Borrower, or make any such information available to any other person for any purpose, unless such Lender has first been furnished specific written authority from the Borrower permitting or directing such particular use or disclosure ....

Tex. Ins.Code Ann. art. 21.48A, § 2(c). Hawthorne produced some evidence in discovery that Countrywide Home Loans might have shared with Countrywide Insurance information it had about Hawthorne’s insurance coverage. However, in deposition testimony, Hawthorne admitted that he knew at the time of closing that Countrywide Home Loans would be the lender on his loan.

Countrywide Home Loans filed a motion for summary judgment. See Tex.R. Civ. P. 166a. In its motion, Countrywide Home Loans claimed that Keller and Hawthorne’s Mortgagor’s Affidavit granted specific permission to “the Lender” to share insurance information and that Hawthorne knew at the time of closing that Countrywide Home Loans had bought the loan and was the lender. The district court granted Countrywide Home Loans’ motion. This appeal followed.

DISCUSSION

Hawthorne appeals the district court’s grant of summary judgment in two issues — that he did not grant authority to Countrywide Home Loans to share his insurance information and, in the alternative, that Countrywide Home Loans’ actions exceeded the scope of authority Hawthorne granted. We disagree.

Because the propriety of a summary judgment is a question of law, we review the trial court’s decision de novo. Natividad v. Alexsis, Inc., 875 S.W.2d 695, 699 (Tex.1994). The standards for reviewing traditional summary judgments are well established: (1) the movant for summary judgment has the burden of showing that no genuine issue of material fact exists and that it is entitled to judgment as a matter of law; (2) in deciding whether there is a disputed material fact issue precluding summary judgment, evidence favorable to the nonmovant will be taken as true; and (3) every reasonable inference must be indulged in favor of the nonmov-ant and any doubts resolved in its favor. Tex.R. Civ. P. 166a(c); Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex.1985). The function of summary judgment is not to deprive litigants of the right to trial by jury, but to eliminate patently unmeritorious claims and defenses. Swilley v. Hughes, 488 S.W.2d 64, 68 (Tex.1972). The summary judgment is affirma-ble on appeal if any ground asserted in the motion for summary judgment is a valid ground for rendering summary judgment. Cincinnati Life Ins. Co. v. Cates, 927 S.W.2d 623, 626 (Tex.1996). Thus, a party moving for summary judgment must conclusively prove all elements of its cause of action or defense as a matter of law. Tex.R. Civ. P. 166a(c); Rhone-Poulenc, Inc. v. Steel, 997 S.W.2d 217, 223 (Tex.1999); Walker v. Harris, 924 S.W.2d 375, 377 (Tex.1996).

Contract construction is also a matter of law. Elliott-Williams Co. v. Diaz, 9 S.W.3d 801, 803 (Tex.1999). A court’s primary concern is to ascertain and give effect to the parties’ intentions as expressed in the instrument. See Forbau v. Aetna Life Ins. Co., 876 S.W.2d 132, 133 (Tex.1994). If the language of a policy or contract is subject to two or more reasonable interpretations, it is ambiguous. Nat’l Union Fire Ins. Co. v. CBI Indus., 907 S.W.2d 517, 520 (Tex.1995). Whether a contract is ambiguous is a question of law for the court to decide by looking at the contract as a whole in light of the circumstances present when the contract was entered. Id. Only when a contract is first determined to be ambiguous may the courts consider the parties’ interpretation and consider extraneous evidence to determine the true meaning of the instrument. Id.

A contract may be “latently” ambiguous, meaning that it is unambiguous on its face but an ambiguity appears through a collateral matter. Id. If an ambiguity arises in this manner, we may consider parol evidence to determine the intent of the parties as expressed in the agreement. Id. Finally, separate instruments or contracts executed at the same time, for the same purpose, and in the course of the same transaction are to be considered as one instrument, and are to be read and construed together. Jones v. Kelley, 614 S.W.2d 95, 98 (Tex.1981).

In applying the foregoing, we review all the documents executed by Hawthorne at the same time as the Mortgagor’s Affidavit and for the same purpose. Mission Mortgage is identified as the lender in the note and the Deed of Trust. However, the “Notice of Assignment, Sale, or Transfer of Servicing Rights,” also signed at closing, named Countrywide Home Loans as the servicer of the loan. This evidence is sufficient to make ambiguous the intention of the parties concerning the identity of the lender in this case.

We now turn to the evidence submitted on the motion for summary judgment. In support of its motion, Countrywide Home Loans offered Hawthorne’s deposition testimony:

Q: And [the Notice of Assignment] says here, “Please forward your payments to the following address: Countrywide Funding Corporation.” Do you see that?
A: Yeah.
Q: And then it says, “Countrywide Funding Corporation will be sending you a payment book in the next few weeks,” correct?
A: Right.
Q: So you understood that Countrywide would be involved as the lender in this process, did you not?
A: Correct.
Q: And you understood that at closing?
A: Yes.
Q: Do you recall if you or Ms. Keller had any questions about the lender being Countrywide as opposed to Mission Mortgage?
A: I don’t recall any questions.
Q: And you certainly had no objection to that occurring?
A: I don’t recall that there was an objection raised.
Q: And you don’t have any objection to date to Countrywide being the lender—
A: No, I don’t.

In his brief on appeal and at oral argument, Hawthorne asserted that he was told only “that Countrywide would have the right to receive future payments as the new servicer of the loan.” In essence, he argued that he did not understand the word “lender” as used in his deposition in the same way that it is being argued on appeal. However, the record does not reflect any presentation of this argument in response to Countrywide Home Loans’ motion, even though this testimony formed the basis for that motion. Rather, he only argued that the absence of Countrywide Home Loans’ name from the Mortgagor’s Affidavit proves that he did not grant authority to Countrywide Home Loans to share his insurance information.

The evidence available in the record to evaluate Countrywide Home Loans’ motion for summary judgment establishes: (1) Mission Mortgage acted as the lender by arranging the loan and completing all the necessary documentation but sold the mortgage to Country Home Loans before the parties closed on the loan; (2) the “Mortgagor’s Affidavit” named only Mission Mortgage as the lender; (3) Hawthorne received notice at closing that servicing rights to his loan belonged to Countrywide and that he would be making his payments to Countrywide Home Loans; (4) Hawthorne signed the “Mortgagor’s Affidavit” with this knowledge; and (5) Hawthorne expressly admitted in his deposition that he understood at the time of closing that Countrywide Home Loans, as opposed to Mission Mortgage, would be the “lender” in relation to his mortgage. In light of these facts, the only reasonable interpretation of the Mortgagor’s Affidavit compels including Countrywide Home Loans as a lender for purposes of the affidavit. Thus, Countrywide Home Loans met its burden on summary judgment to show that Hawthorne furnished it “specific written authority” under article 21.48A to share his insurance information. See Tex. Ins.Code Ann. art. 21.48A, § 2(c). We overrule Hawthorne’s first issue.

In his second issue, Hawthorne argues that, assuming that the grant of authority reached to Countrywide Home Loans, its actions nonetheless exceeded the scope of the grant of authority. However, Hawthorne neither presented this claim to the trial court nor argued it in his answer to Countrywide Home Loans’ motion for summary judgment. Issues not expressly presented to the trial court may not be considered on appeal as grounds for reversal of a summary judgment. Tex.R. Civ. P. 166a(c); State Bd. of Ins. v. Westland Film Indus., 705 S.W.2d 695, 696 (Tex.1986). Because this issue is not properly before us, we will not consider it in our review of this case. We overrule his second issue.

CONCLUSION

Because we overrule Hawthorne’s issues on appeal, we affirm the summary judgment of the district court.

      . Hawthorne brought this suit in his name only. For purposes of clarity, we will note in this section when Hawthorne and Keller acted together. However, in discussing the legal claims, we will refer only to Hawthorne.

      . The record does not indicate exactly when Mission Mortgage transferred the servicing rights to Countrywide.

      . This document is undated but states a beginning date of June 1, 1993, for receipt of loan payments.

      . This case, as originally filed, included another named plaintiff, Eric Campbell. Campbell's case has been severed from this one.

      . There is no dispute that Countrywide Home Loans is a lender under the definition in article 21.48A. See Tex. Ins.Code Ann. art. 21.48A, § 1(1) (West Supp.2004).