text:
    Marie TOVAR, Individually and as Representative of The Estate of Guadalupe M. Rodriguez, Guadalupe Palacios, and Gilda Sanchez, Appellants, v. METHODIST HEALTHCARE SYSTEM OF SAN ANTONIO, LTD., L.L.P., d/b/a Southwest Texas Methodist Hospital, Appellee.
    No. 04-05-00054-CV.
    Court of Appeals of Texas, San Antonio.
    Nov. 16, 2005.

      Jeff Small, Law Office of Jeff Small, M. Stephen Cichowski, Cichowski & Gonzalez, P.C., San Antonio, for appellants.
    Lucretia R. Marmor, Ruth G. Malinas, Ball & Weed, P.C., San Antonio, for appel-lee.
    Sitting: SARAH B. DUNCAN, Justice, KAREN ANGELINI, Justice, SANDEE BRYAN MARION, Justice.
   OPINION

Opinion by SANDEE BRYAN MARION, Justice.

This is an appeal from the trial court’s dismissal of appellants’ medical malpractice case against appellee on the grounds that appellants’ expert report did not satisfy the requirements of the Medical Liability and Insurance Improvement Act (“the Act”). In the underlying lawsuit, appellants sued three doctors and Southwest Methodist Hospital, alleging, in part, that the hospital nurses’ negligence resulted in a delay in diagnosis that caused Guadalupe M. Rodriguez’s condition to deteriorate. Appellants contend the delay in diagnosis delayed the discovery of a cerebral hemorrhage. According to appellants, if the hemorrhage had been discovered and treated sooner, Ms. Rodriguez’s neurological deterioration and death could have been averted. We reverse and remand.

BACKGROUND

On June 7, 2001 at approximately 1:26 p.m., seventy-five-year-old Guadalupe M. Rodriguez arrived at the hospital. Although she was alert and oriented at the time, she complained of a headache and right-arm numbness. Ms. Rodriguez was evaluated and an order admitting her to the Neurological Care Unit was written at approximately 5:10 p.m. However, she was not admitted to the unit until approximately 8:00 p.m., allegedly because of a nursing shortage. Over the next several hours, Ms. Rodriguez was seen by doctors who evaluated her condition, and nurses who documented her condition. At 9:30 p.m., a call placed to Dr. Chandrahasan was returned by Dr. Osonma, who ordered medication to treat Ms. Rodriguez’s blood pressure and nausea. At 12:30 a.m. the next morning, the nursing personnel called Dr. Garrison and reported neurological changes and elevated blood pressure. Dr. Garrison ordered an emergency CT scan, which revealed a massive occipital parietal temporal hemorrhage. At 3:45 a.m., Ms. Rodriguez underwent surgery, following which she was kept on life-support until she was transferred to a hospice where she died on June 13, 2001.

After filing suit against the hospital and doctors, appellants filed the expert report of Dr. Kenneth C. Fischer. The hospital moved to dismiss appellants’ claims on the grounds that Dr. Fischer’s report did not adequately address the elements of standard of care, breach, and causation. After a hearing, the trial court granted the motion, and severed appellants’ claims against the hospital from their claims against the doctors. This appeal ensued.

ADEQUACY OF EXPERT REPORT

A trial court should look no further than the report itself, because all the information relevant to the inquiry is contained within the document’s four corners. Id. at 878. Although the report need not marshal all the plaintiffs proof, it must include the expert’s opinion on each of the three elements that the Act identifies: standard of care, breach, and causal relationship. Id. A report cannot merely state the expert’s conclusions about these elements. Id. at 879. Instead, “the expert must explain the basis of his statements to link his conclusions to the facts.” Bowie Mem’l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex.2002).

STANDARD OF CARE AND BREACH OF THE STANDARD

The standard of care for a hospital or other medical provider is what an ordinarily prudent hospital or other medical provider would do under the same or similar circumstances. See Palacios, 46 S.W.3d at 880; see also Strom v. Mem’l Hermann Hosp. Sys., 110 S.W.3d 216, 222 (Tex.App.-Houston [1st Dist.] 2003, pet. denied). Identifying the standard of care is critical because whether a defendant breached his or her duty to a patient cannot be determined absent specific information about what the defendant should have done differently. Palacios, 46 S.W.3d at 880.

Dr. Fischer’s report stated the following with regard to the standard of care and the nurses’ alleged breach of the standard of care:

... [T]he nursing personnel provided poor documentation of the clinical status of Ms. Rodriguez between 5 p.m. and 9 p.m. Despite the patient’s obvious deterioration at that time, they meekly accepted inadequate responses of Dr. Garrison and Dr. Osonma with no further calls to physicians until 12:30 a.m. when the patient was in extremis. The appropriate standard of care for nursing personnel treating a patient with acute neurological process is to promptly and expeditiously transfer the patient to the appropriate setting and carefully inform the treating physicians of changes in the patient’s clinical status so that appropriate care can be rendered. The nursing personnel ... failed to perform these critical functions in their management of Ms. Rodriguez, thereby breaching the standard of care.

We conclude Dr. Fischer’s report sufficiently sets forth the standard of care because he specifically states what should have been done for a patient “with acute neurological process.” We also conclude Dr. Fischer’s report sufficiently sets forth how the standard of care was breached because he specifically states what the nurses should have, but did not, do.

CAUSATION

To constitute a good-faith effort to establish the causal-relationship element, the expert report must fulfill Palacios’s two-part test. See Wright, 79 S.W.3d at 52; Palacios, 46 S.W.3d at 879. It is not enough that the expert report “provided insight” about the plaintiffs claims. Wright, 79 S.W.3d at 52. Nor may liability in a medical malpractice suit be made to turn upon speculation or conjecture. See Hutchinson v. Montemayor, 144 S.W.3d 614, 618 (Tex.App.-San Antonio 2004, no pet.). Therefore, although a fair summary is something less than all the evidence necessary to establish causation at trial, a fair summary must contain sufficiently specific information to demonstrate causation beyond mere conjecture in order to meet the Act’s requirements and satisfy the Palacios test. See Wright, 79 S.W.3d at 52.

On causation, Dr. Fischer’s report stated the following:

The results of the standard of care departures exercised by Dr. Chandraha-san, Garrison, Osonma, and the nursing personnel in the ER and the receiving floor caused a substantial delay in the appropriate diagnosis and initiation of treatment for the cerebral hemorrhage sustained by Ms. Rodriguez. This type of lesion harbored by Ms. Rodriguez requires prompt cessation of the Coumadin, an immediate brain CT scan, immediate institution of fresh frozen plasma to reverse the Coumadin, and obtaining neurological and neuro-surgical consultation on a stat basis. The failure of Dr. Chandrahasan to promptly have the patient transferred to the ICU from the ER as well as his failure to convey the particulars of Ms. Rodriguez’ [sic] clinical situation to his on-call physician, Dr. Osonma, delayed the addressing of the patient’s clinical deterioration. Similarly, the failure of Dr. Osonma and Dr. Garrison to respond appropriately to the changes conveyed to them by the nursing personnel also delayed realization of the appropriate diagnosis. Again, the failure of the nursing personnel to insist upon prompt evaluation of the patient’s changing clinical status further delayed diagnosis. Had the appropriate diagnosis been made expeditiously in the afternoon hours, when it should have been, instead of 2 a.m. in the morning, when it was finally discovered, the hemorrhage would have been detected at a much earlier stage with the possibility of only medical treatment required as opposed to the desperate and unsuccessful surgery which transpired at 3:⅛5 a. to. Within reasonable medical probability, the dramatic neurological deterioration and death of Ms. Rodriguez would have been averted. The failure of the doctors and nursing personnel to perform within appropriate medical and nursing standards unfortunately caused this untoward result. (Emphasis added.)

The hospital asserts Dr. Fischer’s report contains no factual statements or explanation supporting his conclusion that the nurses’ conduct caused Ms. Rodriguez’s death; does not identify what the nurses failed to communicate to the physicians between 9:30 p.m. and 12:30 a.m., and does not identify what information the doctors should have acted upon. The hospital argues Dr. Fischer’s report is no more adequate than the reports considered by this court in Lopez v. Montemayor, 131 S.W.3d 54 (Tex.App.-San Antonio 2003, pet. denied) and Costello v. Christus Santa Rosa Health Care Corp., 141 S.W.3d 245 (Tex.App.-San Antonio 2004, no pet.). We disagree.

In Lopez, the plaintiffs relied on the following single sentence in the report to establish causation: “Additionally, it is the aspiration of the bridge section which caused and precipitated the medical circumstances leading to the patient’s demise.” 131 S.W.3d at 60. A panel of this court concluded that this statement was conclusory, and did not constitute a good faith effort to comply with the statute’s causation requirement because the statement did not provide information linking Montemayor’s actions to Lopez’s death. Id.

In Costello, the expert report contained the following single sentence on causation: “Dr. Schilling’s report states, ‘If this patient would have been appropriately tria-ged and evaluated, then in all reasonable medical probability she would have survived.’ ” Costello, 141 S.W.3d at 249. A panel of this court held that the expert’s assertion that the patient would have survived was conclusory and we listed a variety of deficiencies in the report. Id. For example, the report did not explain the causal connection between failure to appropriately triage and evaluate and the patient’s death; offered no explanation of what medical information a more timely triage and evaluation would have revealed; did not state what would have been done had Christus not failed to act; did not state how Christus’ failure to act was a substantial factor in bringing about the patient’s death and without which her death would not have occurred; and did not explain the medical basis or reasoning for the conclusion that Lozano “in all reasonable medical probability” would have survived. Id.

Although our opinion in Costello listed these various deficiencies, this list should not be construed as mandatory. As we stated in Costello, the Act requires only “a ‘fair summary’ ” of the expert’s opinions. Id. Here, the expert report meets that requirement. Dr. Fischer links his conclusion regarding the nurses’ alleged breach of the standard of care with his conclusion that Ms. Rodriguez’s neurological condition would not have deteriorated, resulting in the need for surgery. Dr. Fischer states that if the nurses had “carefully informfed] the treating physicians of changes in the patient’s clinical status ... [the] type of lesion harbored by Ms. Rodriguez .... [should have resulted in] prompt cessation of the Coumadin, an immediate brain CT scan, immediate institution of fresh frozen plasma to reverse the Couma-din, and obtaining neurological and neuro-surgical consultation on a stat basis ... [then] ... [w]ithin reasonable medical probability, the dramatic neurological deterioration and death of Ms. Rodriguez would have been averted.” We conclude Dr. Fischer’s report satisfies the Act’s requirement on causation.

CONCLUSION

“[A] plaintiff need not present evidence in the report as if it were actually litigating the merits. The report can be informal in that the information in the report does not have to meet the same requirements as the evidence offered in a summary-judgment proceeding or at trial.” Palacios, 46 S.W.3d at 879. We conclude that Dr. Fischer’s report put the defendant on notice of the conduct complained of, and represents a good-faith effort to provide a fair summary of the statutory elements of standard of care, breach, and causation. For these reasons, we reverse the trial court’s order of dismissal and remand the cause for further proceedings.

      . Article 4590i was repealed by Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 10.09, 2003 Tex. Gen. Laws 847, 884, and has been recodified at Tex. Civ. Prac. & Rem.Code Ann. § 74.351 (Vernon Supp.2004) (effective Sept. 1, 2003). Because the underlying lawsuit was filed on August 11, 2003, all references in this opinion will be to former article 4590L


source: Caselaw Access Project

author: KAREN ANGELINI, Justice.

license: Public Domain

text:
    Luis Richard GARCIA, M.D., Appellant, v. Lizalde MARICHALAR, Appellee.
    No. 04-05-00344-CV.
    Court of Appeals of Texas, San Antonio.
    Nov. 23, 2005.

      Richard L. Garcia, Jr., M. Teresa Garcia, George F. Evans, Evans & Rowe, P.C., M. Kenneth Patterson, Patterson & Wagner, L.L.P., San Antonio, for appellant.
    Kimberly S. Keller, The Keller Group, Thomas D. Jones, Law Office of Thomas D. Jones, P.C., San Antonio, for appellee.
    Sitting: KAREN ANGELINI, Justice, SANDEE BRYAN MARION, Justice, PHYLIS J. SPEEDLIN, Justice.
   OPINION

Opinion by

KAREN ANGELINI, Justice.

This interlocutory appeal arises from a healthcare liability claim filed by Lizalde Marichalar against Luis Richard Garcia, M.D. Pursuant to section 51.014(a)(9) of the Texas Civil Practice and Remedies Code, Garcia appeals the trial court’s May 26, 2005, order denying his motion to dismiss Mariehalar’s claims with prejudice. Because the trial court has since dissolved the May 26, 2005, order, Marichalar has filed a motion to dismiss this interlocutory appeal as moot. In response, Garcia argues that, under Texas Rule of Appellate Procedure 29.5, the trial court’s dissolution of its prior order interferes with or impairs the effectiveness of the relief sought by him on appeal. As such, Garcia moves that, pursuant- to rule 29.6, we review the trial court’s May 26, 2005, order. Because we agree that the trial court’s dissolution of the May 26, 2005, order interferes with or impairs the effectiveness of the appellate relief sought by Garcia, we deny Mari-chalar’s motion to dismiss and grant Garcia’s motion.

Background

Within 120 days of filing her healthcare liability claim, Marichalar sent her expert report to Garcia; however, that report, which focused on acts by other defendants, did not mention Garcia at all. As such, Garcia filed a motion to dismiss Maricha-lar’s claims, arguing that because she did not “serve” him with an expert report within 120 days after filing suit, the trial court, pursuant to section 74.351(b) of the Texas Civil Practice and Remedies Code, must dismiss her claim against Garcia with prejudice. Instead, on May 26, 2005, Garcia’s motion to dismiss was denied. Challenging this interlocutory order, Garcia filed a notice of appeal, asking that we review the trial court’s May 26, 2005, order. On September 28, 2005, four months after Garcia filed its notice of interlocutory appeal, the trial court dissolved its May 26, 2005, order and entered an order granting Marichalar an extension to cure the report.

Discussion

According to Marichalar, pursuant to Texas Rule of Appellate Procedure 29.5, the trial court had authority to dissolve its May 26, 2005, order. And, because the trial court granted Marichalar an extension under section 74.351 of the Texas Civil Practice and Remedies Code, Marichalar emphasizes that pursuant to section 51.014(a)(9), a party may not bring an interlocutory appeal from an “order granting an extension under section 74.351.” See Tex. Civ. Pkao. & Rem.Code Ann. §§ 51.014(a)(9) (Vernon Supp.2004-05), 74.351(c) (Vernon 2005). Thus, Marichalar moves that we dismiss this appeal as moot.

In contrast, Garcia responds that because the trial court’s order- dissolving its prior order interferes with or impairs the effectiveness of the appellate relief sought, the trial court had no authority under rule 29.5 to dissolve the order. Garcia, therefore, asks that pursuant to rule 29.6, we retain appellate jurisdiction and review the trial court’s prior order.

According to Texas Rule of Appellate Procedure 29.5, when an appeal from an interlocutory order is pending, a trial court may dissolve the order appealed from so long as the trial court’s action does not interfere with or impair the effectiveness of the appellate relief sought by the appellant:

While an appeal from an interlocutory order is pending, the trial court retains jurisdiction of the case and may make further orders, including one dissolving the order appealed from, and if permitted by law, may proceed with a trial on the merits. But the court must not make an order that:
(a) is inconsistent with any appellate court temporary order; or
(b) interferes with or impairs the jurisdiction of the appellate court or effectiveness of any relief sought or that may be granted on appeal.

Tex.R.App. P. 29.5 (emphasis added). When a trial court’s order does interfere with or impair the effectiveness of the appellate relief sought, rule 29.6 allows an appellate court to review “any interlocutory order that interferes with or impairs the effectiveness of the relief sought or that may be granted on appeal.” Tex. R.App. P. 29.6(a)(2)..

In support of her argument, Marichalar points to rule 29.5’s language giving the trial court authority to dissolve the order being appealed from. However, rule 29.5 also states, “But the trial court must not make an order that ... interferes with or impairs the ... effectiveness of any relief sought or that may be granted on appeal.” Tex.R.App. P. 29.5. Thus, we consider whether the trial court’s order dissolving its former order interfered with or impaired the appellate relief sought by Garcia.

In support of her argument that the trial court’s order did not interfere with or impair the appellate relief sought, Mari-chalar relies on a recent opinion from the Corpus Christi Court of Appeals, Christus Spohn Health System Corp. v. Rios, No. 13-05-00070-CV, 2005 WL 1039791 (Tex.App.-Corpus Christi May 5, 2005, no pet.). In Christus, 2005 WL 1039791, at *1, the defendants filed an interlocutory appeal of the trial court’s order overruling their objections to the sufficiency of the plaintiffs’ expert report. While the appeal was pending, the plaintiffs asked the trial court to dissolve its prior order and grant them an extension to cure the deficiencies in the expert report. Id. The trial court granted the plaintiffs’ motion, vacated its prior order, and granted the plaintiffs an extension of time. Id. The defendants argued that the trial court’s action violated Texas Rule of Appellate Procedure 29.5 because it interfered with and impaired the effectiveness of the relief sought in the interlocutory appeal. Id.

The court disagreed, noting that the trial court’s new order granted the relief requested by the defendants: it stated that there was a deficiency in the expert report. Id. Nevertheless, the defendants argued that this relief was insufficient because they wanted a dismissal with prejudice. Id. at *2. The court again disagreed, noting that the defendants could still have “the case dismissed with prejudice if [the plaintiffs’] ‘cured’ report is deficient.” Id. And, “[i]f the trial court rules that the ‘cured’ report is sufficient, [the defendants] may appeal the ruling and secure a dismissal with prejudice on appeal.” Id. According to the court, “[n]othing in the trial court’s dissolution order impairs or interferes with these rights.” Id. Thus, the court held that the trial court’s action did not impair the effectiveness of the relief sought. Id.

Christus, however, is distinguishable from this appeal. In Christus, the expert report was timely sent to the defendant; it was just, according to the defendant, deficient. Thus, the basis of the defendant’s motion to dismiss was the expert report’s deficiency. When the trial court dissolved its order denying the motion to dismiss and granting an extension under section 74.351(c), the defendant was receiving the appellate relief sought: the finding that the expert report was deficient.

Here, however, with regard to Garcia, there was no timely served expert report. Unlike section 74.351(c), which concerns deficient expert reports and allows for the granting of one extension, section 74.351(b) provides that when an expert report has not been served on a party within 120 days after the date the claim was filed, the trial court must dismiss a claimant’s claim with prejudice. Under section 74.351, an expert report has not been “served” in two situations:

(1) It was not served within 120 days after the date the claim was filed, i.e. there was no report;
(2) A report was given to the defendant within 120 days but it was deficient.

See Tex. Civ. PRAC. & Rem.Code AnN. § 74.351(a)-(c) (Vernon 2005). With respect to the latter, if a trial court decides that a timely served report is deficient, it may grant one extension to the claimant to cure the deficiency. And, if after that extension, the trial court determines that the report is still deficient, then, for purposes of section 74.351(b), the report has not been “served.”

This is the situation that arose in Chris-tus. The expert report was timely given to the defendant, and, initially, the trial court ruled that the report was not deficient. However, on the plaintiffs motion, the trial court dissolved its order, found the report to be deficient, and granted the plaintiff time to cure the deficient report. Under section 74.351(c), the trial court had authority to grant one extension to the plaintiff in order to cure the deficiency. And, the trial court’s order dissolving its previous order and granting an extension of time did not interfere with or impair the relief sought by the defendant because the defendant, too, was seeking a determination that the report was deficient.

Here, however, Garcia is not seeking a determination that the report was deficient. There was no expert report. Instead, he is seeking a dismissal with prejudice. Under section 74.351(b), when no expert report has been timely served, a trial court must dismiss a the claim with prejudice. See Tex. Civ. Peac. & Rem.Code Ann. § 74.351(b) (Vernon 2005). Unlike when a report is given to the defendant but is deficient, when no expert report is served within 120 days of filing the claim, a trial court has no authority to grant an extension. See Tex. Civ. PRAC. & Rem.Code Ann. § 74.351(a)-(c) (Vernon 2005). Here, instead of allowing this interlocutory appeal to proceed, the trial court dissolved its prior order and granted an extension to Marichalar, which it had no authority to do. In essence, the trial court gave her time to cure a nonexistent report. And, because Garcia may not bring an interlocutory appeal from the granting of an extension, see Tex. Civ. Prac. & Rem.Code Ann. § 51.014(a)(9), by dissolving its prior order and granting an extension, the trial court has interfered or impaired the relief sought by Garcia: a dismissal with prejudice, see Tex.R.App. P. 29.5.

Conclusion

Because the trial court had no authority to grant an extension to Marichalar, its dissolution of its May 26, 2005, order interfered with or impaired Garcia’s right in his interlocutory appeal to seek a dismissal with prejudice. We, therefore, deny Mari-chalar’s motion to dismiss and grant Garcia’s motion under rule 29.6. Because the trial court’s September 28, 2005, order interfered with or impaired with the effectiveness of the appellate relief sought, it is vacated.


author: PER CURIAM.

text:
    CITY OF SAN ANTONIO, Appellant, v. SUMMERGLEN PROPERTY OWNERS ASSOCIATION, INC., Kenneth Carey, Joe Cochran, William McCrae, Karen Peña, George Baum and Dan Vana, Appellees.

    No. 04-05-00589-CV.
    Court of Appeals of Texas, San Antonio.
    Nov. 23, 2005.

      Patrick C. Bernal, Ryan Henry, Denton, Navarro, Rocha & Bernal, P.C., San Antonio, for appellant.
    David L. Earl, Steven W. Arrange, Earl & Associates, P.C., Ryan G. Anderson, McClenahan & Anderson, P.L.L.C., H.L. Buddy Socks, Glast, Phillips & Murray, P.C., Dawn M. Laubach, San Antonio, David R. Weiner, Glast, Phillips & Murray, P.C., Dallas, for appellees.
    Sitting: ALMA L. LÓPEZ, Chief Justice, SARAH B. DUNCAN, Justice, PHYLIS J. SPEEDLIN, Justice.

      . The appellees in this appeal also include the intervenors from the Evans/Bulverde Road area, Cheri Franklin, Ed Berger, Dick Chapman, Betty Chapman, George Pierce, Debra Pierce, Randy Gurley, Eric Johnson, Steve Alderman, Susan Nelson and Randal Oakley.

   OPINION

PER CURIAM.

In this interlocutory appeal we consider the issue of whether appellees, a homeowners association and individual property owners in the Summerglen/Canyon Springs and Evans/Bulverde Road areas, have standing to challenge the City of San Antonio’s proposed annexation of their property. We hold the property owners do not have standing to assert any of their claims for declaratory relief under Chapter 43 of the Local Government Code or under House Bill 585; accordingly, we reverse the trial court’s order denying the City’s plea to the jurisdiction, vacate the order granting a temporary injunction against the City, and dismiss the property owners’ claims.

Factual & Procedural Background

On September 19, 2002, the City Council of San Antonio adopted a new three year annexation plan pursuant to § 43.052 of the Local Government Code. Tex. Loa Gov’t Code Ann. § 43.052 (Vernon Supp. 2004-05). The City amended the plan on December 12, 2002 to add several new proposed annexation areas within its extraterritorial jurisdiction (“ETJ”), including the Summerglen/Canyon Springs and Evans/Bulverde Road areas. Under § 43.052(g), the annexation of those areas must be completed before the 31st day after the third anniversary of the date the areas were added to the plan, ie., before January 12, 2006. Tex. Loo. Gov’t Code Ann. § 43.052(g). If the annexation is not completed by that deadline, the City may not annex the areas for five years. Id.

Following the addition of the subject areas to its three-year annexation plan, the City provided notice of the proposed annexation to the property owners within 90 days, and posted the amended annexation plan and proposed annexation schedule for the areas on its website, as required by § 43.052(f) and (j), respectively. Tex. Loa Gov’t Code Ann. § 43.052(f), (j)- The City posted the required inventory of services on its website on August 27, 2003. See Tex. Loo. Gov’t Code Ann. § 43.053(g) (Vernon Supp.2004r-05). The City presented a draft plan for the provision of services to the areas at the first public hearing on October 30, 2003. A second public hearing was held on November 13, 2003, with an additional third hearing on November 25, 2003 at the request of Summerglen’s residents. See Tex. Loo. Gov’t Code Ann. § 43.0561(a) (Vernon Supp.2004-05) (requiring two public hearings within 90 days of the date the inventory was made available).

Representatives were appointed by the Bexar County Commissioner’s Court for each of the proposed annexation areas from February through April 2004. Thereafter, a series of negotiations were held between the City and the area representatives regarding the terms of the service plan. See Tex. Loa Gov’t Code Ann. § 43.0562 (Vernon Supp.2004-05) (requiring negotiations for the provision of services upon annexation). On June 1, 2004, prior to the first negotiation session, the Summerglen representatives submitted a written request for arbitration. The City, through outside counsel, responded that the arbitration request was premature because negotiations must be completed before arbitration is proper under § 43.0564. See Tex. Loo. Gov’t Code Ann. § 43.0564 (Vernon Supp.2004-05) (providing that if an agreement is not reached through negotiations, either party may request arbitration to resolve the service plan issues). From October 2004 to July 13, 2005, a total of ten negotiation sessions were held on the service plan. Ultimately, no agreement on services was reached.

On February 28, 2005, during the period of negotiations, the Summerglen Property Owners Association, Inc. and several individual property owners and appointed representatives in the area filed suit seeking a declaratory judgment that the City’s attempted annexation was unlawful based on procedural violations of the annexation process set forth in Chapter 48 of the Local Government Code, such as failure to give proper notice of the November 25, 2003 hearing, and failure to provide more than a draft service plan; the suit also alleged the City’s failure to arbitrate upon request was unlawful. On March 9, 2005, a group of individual property owners and representatives in the Evans/Bulverde Road area intervened, requesting the same declaratory relief that the City had failed to comply with the statutory procedure for annexation and could not proceed with the proposed annexation. On June 28, 2005, the City filed a plea to the jurisdiction contending the individual property owners do not have standing to sue because claims based on procedural irregularities in the annexation process may only be brought in a quo warranto proceeding. The City further asserted that the issue of arbitration was not ripe because the negotiation process had not yet run its course.

On June 16, 2005, House Bill 585 was signed by the Governor and became effective immediately. Section 2 of the bill prohibits a municipality with a population of one million or more, that has operated for at least 10 years under a three-year annexation plan similar to the plan described in § 43.052, from annexing an area in its ETJ that is north and east of I.H. 10 and that is either adjacent to the municipality’s boundaries or within 1 1/2 miles of a deferred annexation area. The parties agree that H.B. 585 applies to the City of San Antonio, and specifically, prohibits annexation of the Summerglen/Canyon Springs and Evans/Bulverde Road areas because they lie north and east of I.H. 10 and are within 1 1/2 miles of the PGA Tour deferred annexation area.

On June 28 and 30, 2005, the property owners filed applications for a temporary injunction restraining the City from taking any further steps toward annexation, based on their assertions that annexation of their areas would be a direct violation of new H.B. 585. In its response opposing the temporary injunction, the City contended that H.B. 585 is unconstitutional as a special or local law because it only applies to the northeast area of San Antonio. In addition, the Summerglen/Canyon Springs plaintiffs amended their petition, and the Evans/Bulverde Road intervenors amended their plea in intervention, to add a third claim for declaratory relief stating that annexation would violate H.B. 585. The City’s second amended answer included a counter-claim for declaratory relief that H.B. 585 is unconstitutional as a local or special law.

On July 27, 2005, the trial court held an evidentiary hearing on the temporary injunction applications and the City’s plea to the jurisdiction. Testimony was presented by two City employees, the Comprehensive Planning Manager, Jesus Garza, and the City Planning Director, Emil Monci-vais. Garza testified to the City’s compliance with all of the statutory deadlines in the annexation procedure set forth in Chapter 43, including giving 10 days notice of the November 25, 2003 public hearing, and the timely submission of a “complete” service plan at the first public hearing on October 30, 2003. Garza testified the service plan presented at the October 30, 2003 hearing was a “complete” plan as required by the statute, even though it was in draft form because a service plan is not “final” until adopted by the City Council at the time the annexation ordinance is adopted. See Tex. Loo. Gov’t Code ANN. § 43.056(a) (Vernon Supp.2004-05) (requiring the municipality to “complete a service plan” for the area to be annexed before the first day of the 10th month after the month in which the inventory of services is prepared).

With respect to Summerglen’s arbitration request on June 1, 2004, Garza stated the City has not “refused” to arbitrate. He and Moncivais testified that the City responded to the arbitration request by letter stating that arbitration was proper only after the mandated negotiations had been completed, and the request was premature. In addition, Garza testified to the City’s interpretation of § 43.0564 as only requiring arbitration on the terms of the service plan, not on whether to proceed with annexation. After the last negotiation on July 13, 2005, Garza testified the City stated its position in a letter dated July 15, 2005, that it is “agreeable and intends to proceed with arbitration” on the service plan, and is awaiting any additional arbitration requests from the other areas’ representatives within the 60-day period following the last negotiation. Summerglen’s counsel stated he received notice from the City withdrawing its July 15 letter the evening before the hearing. Garza responded that he was unaware of such a letter. He reiterated that the City is still willing to proceed to arbitration on the service plan.

Finally, Garza testified that the City staff intends to recommend proceeding with annexation of the Summerglen/Can-yon Springs and Evans/Bulverde Road areas as scheduled in December 2005, unless enjoined by the court. He stated if the court enjoined the City staff from taking further steps toward annexation, it would not be possible to conduct the vote on annexation in December 2005. If annexation is approved in December 2005, the annexed areas will be placed on the tax rolls at midnight on December 31, 2005, and will simultaneously become subject to City regulations, ordinances and fees. Property taxes will be assessed for 2006, but will not be due until January 2007. Garza testified that the City’s policy regarding annexation is to continue being an “economically viable city,” and that it uses a cost revenue model to determine whether the tax revenues will pay for the increased services over time.

On August 12, 2005, the trial court entered an order denying the City’s plea to the jurisdiction, and a separate order granting a temporary injunction enjoining the City and its staff from taking any further steps toward annexation, except for posting the agenda and voting on the proposed annexation. The order also set a trial date of October 17, 2005. The City timely brought this accelerated appeal from both orders, thereby delaying an adjudication on the merits. Tex. Civ. PRAC. & Rem.Code Ann. § 51.014(a)(4),(8) (Vernon Supp.2004-05) (subsection (b) provides that an interlocutory appeal of an order denying a plea to the jurisdiction stays all proceedings in the trial court).

ANALYSIS

On appeal, the City raises five issues: (1)whether the trial court erred by denying its plea to the jurisdiction because the property owners (a) lack standing to sue for the alleged procedural defects in the annexation process because the only proper vehicle to challenge the annexation process is a quo warranto proceeding by the State, and (b) lack standing to sue based on a violation of H.B. 585 because it is an unconstitutional local law; (2) whether the court erred in granting the temporary injunction because the property owners did not show a probable right of success; (3) whether the court erred in granting the injunction because the property owners did not show irreparable injury prior to a vote on the proposed annexation; (4) whether the injunction violates the separation of powers doctrine because it enjoins a legislative function; and (5) whether the injunction is sufficiently specific under Tex.R. Crv. P. 683.

The property owners respond that the court properly denied the plea to the jurisdiction because their suit challenges substantive errors in the statutory annexation process, such as the City’s failure to arbitrate once requested, and a quo warranto proceeding is required only for challenges to procedural errors in the annexation process. In addition, they contend they have standing to challenge the City’s authority to annex their areas based on H.B. 585’s ban on annexation of their areas and the bill’s presumed constitutionality. Therefore, they assert they have standing to raise all three of their claims for declaratory relief. With respect to the temporary injunction, the property owners respond that they established a probable right of success because H.B. 585 clearly prohibits annexation of their areas and is presumed constitutional; further, even if it is a “local law,” there is a rational reason for the special classification of the area. They assert that they established the likelihood of irreparable injury based on the City’s intent to proceed with annexation despite H.B. 585, and upon annexation, the immediate imposition of taxes and regulations by the City for which damages are not recoverable from the City. In addition, the property owners assert the injunction is sufficiently specific and limited in scope because it enjoins only non-legislative activities, and thus does not violate the separation of powers doctrine. Based on the reasons discussed below, we conclude the property owners lack standing to assert any of their claims for declaratory relief; therefore, we need not address the City’s other issues raised on appeal.

Plea to the Jurisdiction

In their live pleadings, the plaintiffs and intervenors raise three claims for declaratory relief:

(1) the City’s actions in attempting to annex their property violated their statutory rights under Chapter 43 of the Local Government Code and are unlawful;
(2) the City’s unilateral determination of when the arbitration provisions of Chapter 43 become applicable is unlawful; and
(3) the City’s attempt to annex their property is in violation of H.B. 585.

They request relief in the form of a judgment declaring the proposed annexation unlawful, or alternatively, an order that the City’s refusal to arbitrate is unlawful, plus any other relief to which they are entitled under Chapter 43. The trial court’s order denying the City’s plea to the jurisdiction finds that the property owners have “standing to assert claims for violations of the substantive provisions of Chapter 43 of the Local Government Code and the provisions of H.B. 585.” The order does not specify which claims under Chapter 43 the court considered to be substantive.

The City argues on appeal that the trial court erred in denying its plea to the jurisdiction on the property owners’ first claim because it is based on procedural irregularities in the statutory annexation process, and a claim based on procedural defects may only be brought by the State in a quo warranto proceeding pursuant to Chapter 66 of the Civil Practice and Remedies Code. See Tex. Civ. Prac. & Rem.Code ANN. §§ 66.001-.003 (Vernon 1997). As to the property owners’ second claim based on their request for arbitration, the City argues they have standing only to enforce arbitration, not to prohibit or void the annexation. Finally, the City argues the property owners do not have standing to bring their third claim because H.B. 585 is unconstitutional, and thus, void; therefore, it does not prohibit the proposed annexation. The property owners, in turn, argue they have standing to sue because their first two claims are based on substantive defects in the annexation process which void the City’s annexation authority, and their third claim is based on H.B. 585’s specific removal of the City’s authority to annex their property and the bill’s presumed constitutionality.

Standard of Review. This court reviews a trial court’s ruling on a plea to the jurisdiction under a de novo standard of review. Tex. Natural Res. Conserv. Comm’n v. IT-Davy, 74 S.W.3d 849, 855 (Tex.2002). In conducting our review, we take the factual allegations in the property owners’ petitions as true and construe them in their favor. Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 446 (Tex.1993); City of San Antonio v. Hardee, 70 S.W.3d 207, 210 (Tex.App.-San Antonio 2001, no pet.). To the extent the City challenges the validity of the property owners’ factual allegations, it must plead and prove they were fraudulently made to confer jurisdiction. Hardee, 70 S.W.3d at 210. In addition to the pleadings, we may also consider relevant evidence and must do so when necessary to resolve the jurisdictional issues raised. Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex.2000). As in Hardee, the only issue on the plea to the jurisdiction in this case involves the individual property owners’ standing to bring their claims, and this court may not consider the merits of the underlying suit. Hardee, 70 S.W.3d at 210.

Applicable Law. The determination of whether an individual landowner has standing to challenge annexation turns on whether the challenge attacks the city’s authority to annex the area or merely complains of a violation of statutory procedure. Id. Procedural irregularities in the exercise of the city’s annexation power may render the annexation voidable, but do not render the annexation void. Id. at 211.

It is well established that a quo warranto suit by the State on behalf of its citizens is the only proper method to challenge procedural irregularities such as lack of notice, adequacy of the service plan, lack of a quorum for hearing, and other defects in the process of adopting an annexation ordinance. Laidlaw Waste Sys. (Dallas), Inc. v. City of Wilmer, 904 S.W.2d 656, 658 (Tex.1995); Alexander Oil Co. v. City of Seguin, 825 S.W.2d 434, 436 (Tex.1991) (holding that quo warranto proceeding is only proper method to attack validity of city’s annexation, unless annexation is “wholly void”). Through a quo warranto proceeding, the State “acts to protect itself and the good of the public generally, through the duly chosen agents of the State who have full control of the proceeding.” Alexander, 825 S.W.2d at 437 (quoting Fuller Springs v. State ex rel. City of Lufkin, 513 S.W.2d 17, 19 (Tex.1974)). A quo warranto proceeding settles the validity of the annexation on behalf of all property owners in the subject area, and avoids the problems of successive individual suits which are only binding on the parties and may yield conflicting results. Id.

On the other hand, private party challenges to annexation have historically been permitted when the challenge is based on the municipality exceeding the annexation authority delegated to it by the legislature. Id. at 438 (citing as examples private causes of action challenging an annexation as exceeding the statutory municipal size limits, including areas within the extraterritorial jurisdiction of another city, including areas not contiguous with current city limits, and annexation of an area with a boundary description that does not close); see also Hardee, 70 S.W.3d at 210. Generally, a city has authority to annex an area if it is within its extraterritorial jurisdiction, or if it owns the area. Tex. Loc. Gov’t Code Ann. § 43.051 (Vernon 1999); Hardee, 70 S.W.3d at 211. The city’s annexation authority, however, is subject to any specific limitations imposed by the legislature. See Hardee, 70 S.W.3d at 211 (listing the few statutory limitations on a city’s annexation authority as of that date).

Accordingly, we must determine whether each of the property owners’ three claims is based on a procedural defect in the annexation process, or on the City exceeding its annexation authority as delegated by the legislature.

Application to Claims Pled. The property owners argue they have individual standing because all of their challenges to the proposed annexation are based on the City’s actions outside of its authority, rendering the attempted annexation of their areas void. This argument is similar to the argument rejected by this court in Hardee. In Hardee, individual landowners sued to prevent annexation based on the City of San Antonio’s failure to comply with several statutory provisions, including failure to adopt the required annexation plan, and attempting to annex by resolution rather than ordinance; they also asserted annexation of a particular tract was void because it was undertaken in violation of the Open Meetings Act. Hardee, 70 S.W.3d at 209-10. The landowners argued they had standing because their claims were based on the City acting outside of its statutory authority, which made the annexation void. Id. at 209. This court held the statutory provisions did not limit the area or type of land the City could annex, i.e., did not restrict the City’s annexation authority, and were thus procedural requirements that could make the annexation voidable, but not void; therefore, the private landowners had no standing. Id. at 212.

First Claim. The property owners’ first claim alleges violations of the statutory procedure set forth in Chapter 43 based on the City’s failure to give proper notice of the November 25, 2003 hearing and failure to provide more than a draft service plan. This claim involves purely procedural defects, and must be brought by the State in a quo warranto proceeding. Alexander Oil, 825 S.W.2d at 438-39 (lack of notice and inadequacy of service plan are procedural defects that must be raised in a quo warranto suit); Hardee, 70 S.W.3d at 212. The property owners do not have standing to assert their first claim. Id.; Laidlaw, 904 S.W.2d at 658.

Second Claim. In their second claim, the property owners allege the City’s unilateral determination of when arbitration is applicable under Chapter 43 is unlawful, and the City’s failure to arbitrate deprives it of authority to annex their areas. The property owners cite a recent decision by the Dallas Court of Appeals for their position that arbitration is a substantive right under Chapter 43, and denial of the right to arbitration deprives the city of its annexation authority. See Hughes v. City of Rockwall, 153 S.W.3d 709 (Tex.App.-Dallas 2005, pet. filed February 23, 2005). In Hughes, the city denied a private landowner’s petition to include its land in the city’s three-year annexation plan, and the landowner sued to enforce its right to arbitration provided by § 43.052(i) after the city declined to arbitrate the dispute, stating it was “not appropriate.” Id. at 710; see Tex. Loo. Gov’t Code Ann. § 43.052(i) (Vernon Supp.2004-05) (providing that a landowner may request arbitration if a municipality fails to “take action” on a petition for inclusion in the city’s annexation plan). The Dallas court acknowledged the general rule that procedural defects must be raised in a quo warranto proceeding, but held that § 43.052(i) provides specific legislative authorization for a private person to initiate and sue to compel arbitration when a city takes no action or denies the petition for inclusion of land. Hughes, 153 S.W.3d at 713-14; see also City of Wichita Falls v. Pearce, 33 S.W.3d 415, 417 (Tex.App.-Fort Worth 2000, no pet.). The court noted in Hughes that the legislature “did not open the door for seriatim arbitrations respecting all actions of the municipality in its annexation process,” because § 43.052(i) only provides for arbitration of the narrow issue framed in the statute, ie., whether a petitioner is entitled to inclusion in the annexation plan when a municipality proposes to separately annex areas in violation of the statute. Hughes, 153 S.W.3d at 714.

The City argues on appeal that the current situation is distinguishable from Hughes because © it has not failed or refused to arbitrate since the arbitration request by Summerglen prior to commencement of negotiations was premature, and the City has stated that it was and still is willing to arbitrate; and (ii) the property owners are not seeking to enforce their statutory right to arbitration as in Hughes, but rather to prohibit annexation altogether. Both distinctions are valid. The evidence showed that the City responded to Summerglen’s June 1, 2004 arbitration request by letter stating that under the language of § 43.0564, arbitration is not proper until after the required negotiations have been completed. Negotiations had not yet begun on June 1, 2004. Garza testified that the City’s July 15, 2005 letter sent after the last negotiation session noted Summerglen’s request for arbitration, and stated the City is “agreeable and intends to proceed with arbitration” after expiration of the 60-day period for the other areas’ arbitration requests. The record does not show that the City refused to arbitrate, but, rather, shows it delayed arbitrating until after the mandated negotiations were completed in accordance with the plain language of § 43.0564. See Tex. Loo. Gov’t Code ANN. § 43.0564.

Even if the City’s actions are interpreted as effectively denying Summerglen’s request for arbitration, the court in Hughes did not hold that denial of the right to arbitration renders an annexation without authority, or void, but merely that a private landowner has standing to sue to compel arbitration under the statute. Id. at 713-14. The City argues that, at most, the property owners have standing only to compel arbitration under § 43.0564, and that such arbitration is limited to the terms of the service plan, not the decision of whether to annex the areas. See Tex. Loc. Gov’t Code. Ann. § 43.0564(a) (providing that if the municipality and area representatives cannot reach an agreement for the provision of services pursuant to the statutorily required negotiations, either party may request arbitration “to resolve the service ‘plan issues in dispute”). We agree. The property owners, however, are not seeking to compel arbitration in this case; rather, they are seeking a judgment declaring the City’s denial of arbitration unlawful, and the proposed annexation as without authority. Failure to arbitrate is a violation of the statutory annexation procedure under the Alexander Oil analysis, and does not restrict the City’s annexation authority, but may merely make the annexation voidable. See Alexander Oil, 825 S.W.2d at 436; Hardee, 70 S.W.3d at 210-11. The property owners do not have standing to assert their claim for declaratory relief that the annexation is prohibited, or void, based on the City’s delay, or even failure, to arbitrate.

Third Claim. The property owners’ third claim alleges the proposed annexation is in direct violation of H.B. 585, and is thus void as outside the City’s annexation authority. They assert that they have standing under H.B. 585 to challenge the annexation as wholly void. See Alexander Oil, 825 S.W.2d at 437-38 (private citizen has standing to challenge annexation that is outside the city’s delegated authority, and therefore “wholly void”); see also Laidlaw, 904 S.W.2d at 658 (holding private corporation had standing to sue based on its claim that annexation exceeded the statutory area limitations placed on city). The City concedes that annexation of the Summerglen/Canyon Springs and Evans/Bulverde Road areas is prohibited by the plain language of H.B. 585, but argues the new statute is unconstitutional because it is a “local or special law” that only applies to a particular area of San Antonio, in contravention of article III, § 56 of the Texas Constitution; therefore, the law is void and can not confer standing. See Tex. Const, art. Ill, § 56. The property owners’ position on appeal is that the trial court did not rule on the constitutionality of H.B. 585, and thus the issue was not preserved for review. They also assert that H.B. 585 is constitutional because it is not a local law, and even if it is a local law, a rational basis exists for the special classification. Accordingly, we must first determine whether the trial court ruled on the constitutionality of H.B. 585, and if so, we must then determine whether or not its ruling is erroneous.

There is a presumption that a statute enacted by the legislature is constitutional, and the courts must interpret a statute in a manner that avoids constitutional infirmities, if possible. Barshop v. Medina County Underground Water Conserv. Dist., 925 S.W.2d 618, 629 (Tex.1996). A court should only consider the constitutionality of a statute when the issue is properly raised, and when the determination is necessary and appropriate to a decision in the case. In re Jane Doe 2, 19 S.W.3d 278, 284 (Tex.2000). An attack on a statute’s presumed constitutionality should generally be raised as an affirmative defense to enforcement of the statute. Id.; Tivoli Corp. v. Jewelers Mut. Ins. Co., 932 S.W.2d 704, 708 (Tex.App.-San Antonio 1996, writ denied). A mere allegation that a statute is unconstitutional does not entitle a party to an adjudication of the validity of the statute. Sterling v. San Antonio Police Dept., 94 S.W.3d 790, 794 (Tex.App.-San Antonio 2002, no pet.). The party challenging the statute’s constitutionality must point out precisely how a constitutional principle has been violated. Tex. Workers’ Compensation Comm’n v. City of Bridge City, 900 S.W.2d 411, 415-16 (Tex.App.-Austin 1995, writ denied). Absent an appropriate pleading raising the issue of a statute’s unconstitutionality, a trial court is generally without authority to reach the issue. Jane Doe 2, 19 S.W.3d at 284. Finally, a court will not rule on a constitutional question, although properly presented by the record, if there is some other ground upon which the case may be disposed. In re B.L.D., 113 S.W.3d 340, 349 (Tex.2003); see also Friedrich Air Conditioning & Refrig. Co. v. Bexar Appraisal Dist., 762 S.W.2d 763, 770-71 (Tex.App.-San Antonio 1988, no writ).

The City asserts the constitutionality of H.B. 585 was squarely before the trial court because the issue was specifically raised in its written pleadings, argument and evidence were presented at the hearing on whether the bill is an unconstitutional local law, and the property owners were seeking to invoke their rights under H.B. 585 to enjoin and, ultimately, prohibit the proposed annexation. In written pleadings, the City raised the issue of the bill’s constitutionality in its response to the application for temporary injunction, and in a counter-claim for declaratory relief included in its second amended answer. At the hearing, the City acknowledged that its counterclaim for a declaratory judgment that H.B. 585 is unconstitutional could not be set or ruled on because the Attorney General had not yet been permitted the required 45-days’ notice to intervene. The City maintained, however, that the constitutionality of the bill was at issue, and was properly before the court, with respect to its plea to the jurisdiction and the temporary injunction because if the bill was an unconstitutional local law, then the property owners had no standing to request the declaratory relief sought, ie., that H.B. 585 barred annexation of their areas.

The City argued at the hearing that, the property owners lacked standing to assert claims under H.B. 585 because it is an unconstitutional local law, and presented evidence through Jesus Garza as to the bill’s localized application. Garza testified that his understanding of the bill is that it applies only to a particular area of San Antonio. He stated that San Antonio is the only major city that has had the type of annexation plan described in the bill for 10 years. Moreover, he stated H.B. 585 does not apply to Houston or El Paso, the other major cities suggested by the property owners as encompassed by the bill. Houston is not covered because it has not had an annexation plan for 10 years like San Antonio and has no areas within its ETJ that are north and east of I.H. 10. El Paso is not covered because its population is only 500,000, and it does not have a 10-year annexation plan. Excerpts from the legislative history of H.B. 585 were played stating that the bill was “bracketed to San Antonio” only. Evidence was also presented about the history of the Timberwood Park area’s request for incorporation, which was denied by the City of San Antonio, as the impetus for H.B. 585. In addition to exempting the covered areas from annexation, the bill permits the areas to hold an incorporation election, and includes the Timberwood Park area.

At the conclusion of the hearing, the trial court deferred making any rulings. The trial court’s written orders issued a few days later simply state that the petitioners “have standing to assert claims for violations of ... the provisions of HB 585,” and are entitled to the injunction, in part, because the City “intends to ... commit an unlawful act by acting in direct contravention of a presumptively valid and constitutional state law: HB 585, by annexing property that is identified as exempt from annexation by the express terms of HB 585.” Despite the order’s use of the phrase “presumptively valid and constitutional,” the City asserts the trial court necessarily ruled on H.B. 585’s constitutionality in holding the property owners have standing to asserts rights under H.B. 585; the property owners argue the court merely applied the presumption of constitutionality to find standing.

Based on the record, we conclude that the issue of H.B. 585’s constitutionality was properly raised in the trial court, and that it was necessary for the court to make a ruling on the constitutionality of H.B. 585 in order to reach its conclusion that the property owners have standing to seek relief under H.B. 585. Standing is a necessary component of subject matter jurisdiction. Barshop, 925 S.W.2d at 626. Standing may be conferred by statute, or by a plaintiff possessing an interest in a conflict that is distinct from the general public’s interest such that the defendant’s actions have caused the plaintiff a particular injury. Williams v. Lara, 52 S.W.3d 171, 178 (Tex.2001). Here, the property owners assert standing conferred by a statute, H.B. 585. An unconstitutional statute is void, and can not provide a basis for any right or relief. In re Hinterlong, 109 S.W.3d 611, 636 (Tex.App.-Fort Worth 2003, orig. proceeding) (citing Reyes v. State, 753 S.W.2d 382, 383-84 (Tex.Crim.App.1988)). Because we conclude that resolution of the constitutionality of H.B. 585 was necessary to a determination of whether the property owners have standing to assert their rights under the bill, we interpret the trial court’s order finding standing as containing an implicit ruling that H.B. 585 is constitutional. Accordingly, we must next determine whether H.B. 585 is constitutional, ie., not an unconstitutional “local or special law.”

The constitutionality of a statute is a question of law which we review de novo. State v. Hodges, 92 S.W.3d 489, 494 (Tex.2002). The City complains that H.B. 585 on its face is a prohibited local law. See Barshop, 925 S.W.2d at 627 (to sustain facial challenge, party must establish that statute, by its terms, always operates unconstitutionally). Article III, section 56, of the Texas Constitution prohibits the legislature from passing any local or special law, except as otherwise provided in the Constitution. Tex. Const, art. Ill, § 56. Although the terms are often used interchangeably, a “local law” is one limited to a specific geographic region of the State, while a “special law” is limited to a particular class of persons distinguished by a characteristic other than geography. Ma ple Run at Austin Mun. Util. Dist. v. Monaghan, 931 S.W.2d 941, 945 (Tex.1996). The purpose of Article III, section 56 is to “prevent the granting of special privileges and to secure uniformity of law throughout the State as far as possible.” Id. (quoting Miller v. El Paso County, 136 Tex. 370, 150 S.W.2d 1000, 1001 (1941)). A law is not necessarily a prohibited “local law” merely because its scope is limited to a particular geographic area. Id. (listing examples of local laws upheld based on reasonable distinctions). The ultimate question under section 56 is whether there is a reasonable basis for the legislature’s special classification provided in the law. Id. at 947; see also Rodriguez v. Gonzales, 148 Tex. 537, 227 S.W.2d 791, 793 (1950) (the ultimate test is whether there is a reasonable basis for the classification and whether the law operates equally on all within the class). After a court determines that a law is a local or special law, it must decide whether the law is otherwise permitted by the Constitution, or whether it is a prohibited local law. Maple Run, 931 S.W.2d at 948.

Here, the evidence presented at the hearing showed that the application of H.B. 585 is limited to a specific geographic region located within the City of San Antonio’s ETJ. The plain language of the statute states that it applies only to an area north and east of I.H. 10 that falls within the ETJ of a municipality with a population of one million or more that has operated under a particular type of three-year annexation plan for at least 10 years. The main evidence presented at the hearing on this issue was Garza’s testimony. Garza testified that San Antonio is the only municipality that meets the statute’s criteria. He explained why Houston and El Paso, the cities suggested by the property owners as also falling within H.B. 585, do not qualify. In addition, excerpts from the legislative history were admitted which stated that the bill was “bracketed to San Antonio” only. Clearly, based on the language of the statute itself and the evidence presented at the hearing, H.B. 585 is a local law.

We must next determine whether there is a reasonable basis for the bill’s special classification and whether the law is otherwise permitted by the Constitution; if not, it is a prohibited local law under article 56 of the Constitution. Maple Run, 931 S.W.2d at 947-48. The property owners argued at the hearing that there was a rational basis for the special classification of the covered areas because the bill gives those areas a right to vote on incorporation; however, no evidence was presented as to why it is reasonable to single out those areas, as opposed to other areas of San Antonio or the State, for special treatment. Finally, no evidence was presented that H.B. 585 is otherwise permitted by the Texas Constitution, and we find no such authorization. See id. at 948 (noting that section 59 of the Constitution authorizes the legislature to pass local legislation for conservation purposes).

Based on the record before us, we hold that H.B. 585 singles out a specific geographic area of the City of San Antonio’s ETJ for special treatment without any reasonable basis, and without other authority in the Constitution, and is therefore a prohibited local law. See id. at 948-49 (holding statute was prohibited local law based on evidence that Maple Run was the only municipal utility district that met statute’s criteria, legislature had intended the statute to apply only to that district, and there was no reasonable basis for the special treatment). Because H.B. 585 is an unconstitutional local law, the property owners do not have standing to assert a claim for relief under H.B. 585.

Conclusion. Based on the foregoing analysis, we hold the property owners lack standing to challenge the proposed annexation. Accordingly, we reverse the trial court’s order denying the City’s plea to the jurisdiction, and vacate the order granting the temporary injunction against the City. See Butnaru v. Ford Motor Co., 84 S.W.3d 198, 204 (Tex.2002) (to prevail on a request for a temporary injunction, the applicant must prove, among other elements, the existence of a cause of action against the defendant for which it may be granted relief); see also Khaledi v. H.K. Global Trading, Ltd., 126 S.W.3d 273, 280 (Tex.App.-San Antonio 2003, no pet.). Finally, we dismiss the property owners’ claims against the City. TexR.App. P. 43.2(e).

      . The City of San Antonio is a home-rule municipality.

      . Chapter 43 of the Texas Local Government Code contains the Municipal Annexation Act. Tex. Loc. Gov’t Code Ann. §§ 43.001-.907 (Vernon Supp.2004-05). The Act was designed "to curb the virtually unlimited power of home rule municipalities to unilaterally annex territory.” City of San Antonio v. City of Boerne, 111 S.W.3d 22, 27 (Tex.2003) (internal quotation omitted).

      .Summerglen had been previously scheduled for annexation in September 2002, but was removed from that plan and placed in the new three year plan in December 2002, giving it an additional three years to negotiate an acceptable services plan.

      . Evidence was presented that the City granted the PGA Tour a 29-year exemption from annexation, contingent on certain developments such as a hotel agreement, in exchange for higher water quality protections.

      . The attorney for the City acknowledged at the hearing that the City’s counterclaim for a declaratory judgment that H.B. 585 is unconstitutional could not be set and ruled on until the Texas Attorney General had been given 45 days notice to appear (which time would have expired in mid-August). See Tex. Civ. Prac. & Rem.Code Ann. § 37.006(b) (Vernon 1997) (providing that in a declaratory judgment proceeding involving the validity of a municipal ordinance, if a statute is alleged to be unconstitutional, the attorney general must be served with a copy of the proceeding and is entitled to be heard). The parties' briefs represent that the Attorney General has not yet entered an appearance in the underlying cause.

      . An individual property owner who is the appointed representative for the Oliver Ranch area, Dawn Laubach, also appeared at the injunction hearing, having filed a plea in intervention asserting the same grounds for declaratory relief. The City did not oppose her intervention, and her claims for declaratory relief, like those of the plaintiffs and other intervenors, remain pending.

      . On appeal, the landowners conceded they did not have individual standing to bring their other claims based on purely procedural defects such as failure to give proper notice to landowners, and failure to give notice and defects in the inventory of services. Hardee, 70 S.W.3d at 210 n. 2.

      . This court also held, however, that the landowners had standing under the Open Meetings Act to challenge the annexation as unauthorized. Hardee, 70 S.W.3d at 213.

      . At the hearing, the attorney for the Evans/Bulverde Road property owners stated that a similar arbitration request was made in writing on June 1, 2004 on behalf of the Evans/Bulverde Road intervenors.

      . San Antonio first adopted a three-year annexation plan in 1993, and had been using a rolling three-year plan until Senate Bill 89 was adopted in 1999, requiring all municipalities to adopt an annexation plan in compli-anee with § 43.052, Tex. Loc. Gov't Code Ann. Garza testified that by 2009, all cities that do ETJ annexations will be required by S.B. 89 to have a 10-year annexation plan.


text:
    Florencio SALAZAR, Appellant, v. The STATE of Texas, Appellee.
    No. 04-05-00162-CR.
    Court of Appeals of Texas, San Antonio.
    Nov. 23, 2005.
    Kelly L. Gatewood, State Counsel for Offenders, Huntsville, for appellant.

      Melinda Mayo, Special Prosecution Unit, Amarillo, Rene M. Pena, Crim. Dist. Atty., Floresville, for appellee.
    Sitting: SARAH B. DUNCAN, Justice, KAREN ANGELINI, Justice, SANDEE BRYAN MARION, Justice.
   OPINION

Opinion by

KAREN ANGELINI, Justice.

Florencio Salazar, Jr. appeals his conviction for possession of a deadly weapon in a penal institution. In one issue, Salazar contends that the trial court erred by denying his motion to suppress evidence. According to Salazar, his due process rights were violated by law enforcement officers destroying potentially exculpatory evidence consisting of a videotape of the prison riot in which he was involved and upon which the charge against him was based. Finding no error, we affirm the trial court’s judgment.

STANDARD OF REVIEW

We review the trial court’s ruling on a motion to suppress for abuse of discretion. Guzman v. State, 955 S.W.2d 85, 88-89 (Tex.Crim.App.1997). Under this standard, we afford almost total deference to a trial court’s determination of historical facts supported by the record, especially when the findings are based on an evaluation of credibility and demeanor. Id. When reviewing a trial court’s ruling on a mixed question of law and fact, we review de novo the trial court’s application of the law to the facts of the case. Estrada v. State, 154 S.W.3d 604, 607 (Tex.Crim.App.2005). However, we also afford almost total deference to the trial court’s evaluation of the credibility and demeanor of the witnesses. Id. And, when there are no explicit findings of historical fact, the evidence must be viewed in the light most favorable to the trial court’s ruling. Id. The trial court’s ruling must be upheld if it is correct under any theory of law applicable to the case. Id.

Discussion

On July 2, 2003, Salazar was legally incarcerated at the Connally Unit in Kene-dy, Texas. On that morning, he, along with about fifty to seventy other prisoners, left their cells to go to work. Salazar was strip searched, and no weapons were found. As the prisoners were going to work, a riot broke out involving twenty to twenty-five prisoners. The riot lasted about thirty minutes. According to Salazar, there was a picket in the area with a video camera that could record what was going on. And, Salazar contends two officers were operating hand-held video cameras. During the riot, Salazar was stabbed in the lip. Although one of the officers said Salazar had a weapon, Salazar denied it. Salazar contends that at a disciplinary hearing that was held six days after the riot, he requested that the videotapes of the event be preserved. The State, however, produced no videotapes. Salazar believes that the videotapes would show that he was not in control of a deadly weapon.

It is the practice of the Texas Department of Corrections to re-use videotapes so that events are taped over every fourteen days. There is also an administrative directive in place that requires a crime scene to be protected by the preservation of evidence, including pictures and videos. The investigator, Sheila Thomas, testified that no videotapes were made available to her. It was the State’s position at trial that any videotapes that may have existed were simply taped over as a matter of routine.

The State has a duty to preserve evidence that possesses “an exculpatory value that was apparent before the evidence was destroyed.” California v. Trombetta, 467 U.S. 479, 488-89, 104 S.Ct. 2528, 81 L.Ed.2d 413 (1984); see Jackson v. State, 50 S.W.3d 579, 588-89 (Tex.App.-Fort Worth 2001, pet. ref'd); Mahaffey v. State, 937 S.W.2d 51, 53 (Tex.App.-Houston [1st Dist.] 1996, no pet.). Therefore, a defendant must demonstrate the lost evidence is both favorable and material to his case. See Jackson, 50 S.W.3d at 589 (citing United States v. Valenzuela-Bernal, 458 U.S. 858, 873, 102 S.Ct. 3440, 73 L.Ed.2d 1193 (1982)); Mahaffey, 937 S.W.2d at 53. A showing that the lost evidence might have been favorable does not meet the materiality standard. Jackson, 50 S.W.3d at 589; Hebert v. State, 836 S.W.2d 252, 254 (Tex.App.-Houston [1st Dist.] 1992, pet. ref'd). In addition, the accused must show that the State acted in bad faith when it failed to preserve the evidence in order to show a violation of due process or due course of law. Jackson, 50 S.W.3d at 589 (citing Arizona v. Youngblood, 488 U.S. 51, 58, 109 S.Ct. 333, 102 L.Ed.2d 281 (1988), for due process and Mahaffey, 937 S.W.2d at 53, for due course of law).

On appeal, the State urges that the only evidence of the existence of the videotapes came from Salazar and, because the trial court ruled against Salazar on the motion to suppress, the trial court must not have believed him. Further, according to the State, Salazar has not met his burden to show that the videotapes contained exculpatory evidence or that the failure of the State to preserve the videotapes amounted to bad faith.

Applying the above-stated rules regarding the failure to preserve evidence, we hold that the trial court did not err in overruling Salazar’s motion to suppress. Even if the videotapes did exist, there is simply no evidence of what the videotapes would have shown. Further, there is no evidence that the State’s failure to preserve the videotapes was as a result of bad faith.

Salazar further urges, however, that “courts have been moving away from [the Youngblood standard], finding that their own state constitutions provide stronger due process protections than those of the United States Constitution.” One of our sister courts of appeals, the Waco Court of Appeals, did in fact so hold in Pena v. State, 166 S.W.3d 274 (Tex.App.-Waco 2005, pet. granted). In Pena, the trial court denied a motion to suppress in a drug possession case where the marijuana had been destroyed after the State had tested it but before the defendant had an opportunity to conduct an independent analysis. Id. at 277. The Waco court held that because the Texas Constitution provides a greater level of protection than the United States Constitution, the trial court’s denial of the motion to suppress should be reversed and remanded, even though there was no evidence of bad faith on the part of law enforcement officials. Id. at 281. We decline, however, to follow the holding of the Waco court. As Justice Gray noted in his dissent in Pena, the Texas Supreme Court has consistently held the due course of law provision of the Texas Constitution and the Due Process Clause of the United States Constitution to be equivalent. Pena, 166 S.W.3d 274, 284 n. 1 (Gray, J., dissenting).

We, therefore, affirm the trial court’s judgment.

      . The Fourteenth Amendment to the United States Constitution provides the following: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” Article 1, section 19 of the Texas Constitution provides: "No citizen of this State shall be deprived of life, liberty, property, privileges or immunities, or in any manner disenfranchised, except by the due course of the law of the land.”


text:
    Lynn Peers WELCH, Appellant, v. Thomas L. VELTEN, Appellee.
    No. 2003-SC-001000-DG.
    Supreme Court of Kentucky.
    Feb. 23, 2006.
    Diana L. Skaggs, Sandra Ragland, Melinda Abney Whitton, Diana L. Skaggs & Associates, Louisville, Counsel for Appellant.
    J. Fox DeMoisey, DeMoisey Law Office, Louisville, Counsel for Appellee.
   OPINION OF THE COURT

This appellate-procedure case presents the issue of whether a party’s motion to dismiss her opponent’s appeal pursuant to Kentucky Rules of Civil Procedure (CR) 76.34(6) suspends the running of time within which that party may file a notice of cross-appeal, pending a ruling on the motion to dismiss.

The Jefferson Family Court entered its final judgment in this marriage-dissolution proceeding on August 1, 2002. Both parties — Welch and Velten — filed timely motions to alter, amend or vacate the judgment pursuant to CR 59.05. Without expressly granting or denying either of those motions, the family court, on December 3, 2002, entered an opinion and order addressing their respective arguments and modifying or clarifying the original judgment.

Velten promptly filed a motion pursuant to CR 59 to alter, amend or vacate the opinion and order entered on December 3. The court denied that motion on June 27, 2003, and Velten filed his notice of appeal on July 18, 2003.

On July 28, 2003, Welch moved the Court of Appeals to dismiss Velten’s appeal as untimely filed, arguing that Vel-ten’s time expired thirty days after entry of the opinion and order of December 3, 2002, which disposed of the CR 59 issues. Velten responded that the opinion and order of December 3 was essentially a new final judgment, and that his second CR 59 motion was therefore legitimate and served to terminate the running of time for appeal, which began anew when his motion was denied on June 27, 2003.

The Court of Appeals agreed with Vel-ten and denied Welch’s motion to dismiss the appeal on September 10, 2003. Welch filed her notice of cross-appeal on September 19. The Court of Appeals, sua sponte, ordered Welch to show cause why her cross-appeal should not be dismissed on grounds that the notice was filed out of time and, upon consideration of her response, dismissed the cross-appeal. We granted discretionary review to decide whether Welch’s time for filing a notice of cross-appeal was suspended until the Court of Appeals ruled on her motion to dismiss the direct appeal. We do not decide whether Velten’s notice of appeal was timely.

CR 73.02(2) mandates that, “The failure of a party to file timely a notice of appeal, cross-appeal, or motion for discretionary review shall result in a dismissal or denial.” CR 74.01 provides for cross-appeals, and subsection (1) states, in part:

Any party properly named as an appel-lee or cross-appellee may take a cross-appeal from a judgment of the trial court. A cross-appeal shall be denominated as such and shall be prosecuted like a regular appeal and governed by the Rules applicable thereto, except that the notice of cross-appeal shall be filed not later than 10 days after the last day allowed for the filing of a notice of appeal.

Assuming for purposes of the issue at hand that Velton did have the right to appeal within thirty days after entry of the June 27, 2003, order denying his second CR 59 motion, as the Court of Appeals ruled in its interlocutory order denying Welch’s motion to dismiss, then the last day allowed for the filing of a notice of appeal would have been Monday, July 28. Welch’s time for filing a notice of cross-appeal would have expired ten days later, on August 7, by our count. (Welch and the Court of Appeals arrived at August 6, but the difference is immaterial in this case.) Her filing on September 19 was far too late unless some agent outside of CR 74.01(1) paused the clock.

That agent, Welch contends, was her motion to dismiss the appeal pursuant to CR 76.34(6). That Rule, headed “Motion to dismiss appeal or cross-appeal,” provides:

(a) In addition to any other relief provided by these Rules, an adversary party may move to dismiss an appeal or cross-appeal because it is not within the jurisdiction of the appellate court or because it has not been prosecuted in conformity with the Rules; and
(b) Timely filing of a motion to dismiss shall suspend the running of time for procedural steps otherwise required with regard to the appeal and any cross-appeal in the same proceeding, and the time will continue to run as provided by Rule 76.12(2) after the date an order is entered, denying the motion or passing it to the merits.

Welch argues that her motion to dismiss, filed on July 28, ten days before the August 7 deadline, stopped the running of time for the filing of a notice of cross-appeal, which filing she perceives to lie among those “procedural steps otherwise required with regard to the appeal and any cross-appeal in the same proceeding.” When the Court of Appeals denied her motion to dismiss on September 10, Welch concludes, the clock resumed with ten days remaining, so that her filing on September 19 was timely.

The Court of Appeals concluded that CR 76.34(6)(b) applies to procedural steps such as the filing of a prehearing statement or a brief, but not to a notice of cross-appeal, which, although it is a “procedural device,” requires strict compliance with time limits for invoking appellate jurisdiction. Indeed, as the court observed, CR 73.02(2) mandates dismissal of an appeal which was untimely filed, but that observation begs the question, as it assumes Welch’s filing to have been untimely. Time limits for invoking jurisdiction are established by the rules of procedure, and there is no reason to believe that the rules may not also provide for conditional suspension of the running of time. There is little in CR 76.34(6) to advise litigants of any crucial distinction between a “procedural step” and a “procedural device.”

We recognize that CR 76.34(6)’s only reference to the resumption of the march of time, after a motion to dismiss appeal has been denied or passed to the merits, is that “time will continue to run as provided by Rule 76.12(2),” which rule deals only with the filing of briefs. If the suspension clause in CR 76.34(6) was intended to be limited to the filing of briefs, however, it would hardly be necessary or desirable to provide broadly for suspension “for procedural steps otherwise required.” (We cannot rule out, but do not anticipate, a future case in which a party argues that procedural steps other than the filing of briefs are suspended indefinitely since the time-resumption clause is limited to CR 76.12(2).)

If there is an ambiguity in CR 76.34(6), we believe it is best resolved in favor of having appeals and cross-appeals decided on their merits. We perceive no prejudice to any party, and nothing inimical to the rules, in holding that Welch’s notice of cross-appeal was timely filed.

The order dismissing Welch’s cross-appeal is vacated, and this matter is remanded to the Court of Appeals with directions to consider the notice of cross-appeal to have been timely filed.

All concur.


text:
    Jimmy HOWARD and Dick Adams, Attorney Appellants, v. PEABODY COAL COMPANY; Hon. J. Landon Overfield, Administrative Law Judge; Hon. Christopher H. Smith; and Workers’ Compensation Board, Appellees.
    No. 2005-SC-0327-WC.
    Supreme Court of Kentucky.
    Feb. 23, 2006.

      Dick Adams, Adams, Ramey & Burns, Madisonville, Counsel for Appellants.
    Peter J. Glauber, Boehl, Stopher & Graves, LLP, Louisville, Counsel for Ap-pellee, Peabody Coal Company.
    Robert L. Whittaker, Kentucky Labor Department, Frankfort, Counsel for Ap-pellee, Kentucky Labor Department.
   OPINION OF THE COURT

An Administrative Law Judge (ALJ) denied the claimant’s attorney a fee for services rendered in obtaining a Retraining Incentive Benefits (RIB) award on the ground that that 803 KAR 25:125 did not authorize an attorney fee until such time as the claimant received payments under the award pursuant to KRS 342.732(l)(a)2 or 3. The Workers’ Compensation Board and the Court of Appeals affirmed. This appeal by the claimant’s attorney asserts that 803 KAR 25:125 violates public policy by discouraging attorneys from taking RIB cases and also that it violates the equal protection clause of the United States Constitution and Sections 1, 2, and 3 of the Kentucky Constitution by unfairly discriminating against attorneys who represent injured workers. We affirm.

The claimant was born in 1952. He testified that he earned a high school diploma in 1970, after which he spent his entire work history in underground coal mining. His last exposure to coal dust occurred on December 6, 2002, when he was laid off. The record indicates that he entered into a subsequent contract with counsel for representation on a workers’ compensation claim. He and counsel agreed that any attorney’s fee would be paid in a lump sum and deducted from his weekly benefits until the defendants recouped the amount of the fee, that the fee “shall be paid by the employee from the proceeds of the Award [sic] or settlement,” and that “If there is no recovery of past or future benefits, there shall be no attorney’s fee payable .... ”

Based on x-ray reports from his medical experts, an ALJ determined that he suffered from category 1 coal workers’ pneu-moconiosis and that there was no evidence of pulmonary impairment. In addition to all other benefits payable under KRS 342.732(l)(a), the claimant received a RIB award, in the amount of $103.25 per week, for a period not to exceed 104 weeks, provided that he was “enrolled and actively and successfully participating” as a student in compliance with KRS 342.732(l)(a)2 or 3. No appeal was taken from the decision.

It is undisputed that the claimant was not enrolled or participating as a student at the time of his award or the subsequent motion requesting an attorney’s fee. In denying the motion, the ALJ explained that counsel was not entitled to a fee under 803 KAR 25:125 until such time as the claimant enrolled in a bona fide training or GED program and received payments under the award. Shortly after the motion was denied, the claimant filed a “Notice of Deferral” in which he stated that he suffered from an illness unrelated to his pneumoconiosis and elected to defer the commencement of his award for a period of 365 days.

Counsel asserts that 803 KAR 25:125 unlawfully discriminates against plaintiffs’ attorneys, that there is no substantial and justifiable reason for the classifications it creates, and that it is not rationally related to a legitimate state interest. He argues that although the regulation permits an employer’s attorney to receive a fee without regard to the outcome, it requires the worker’s attorney fee to be contingent not only on obtaining an award for the client but also on the client’s subsequent enrollment and participation as a student if the client is less than 57 years old. Counsel acknowledges that discrepancies in the financial resources of workers and employers provide a rational basis for KRS 342.320 to require the fee of a worker’s attorney to be contingent on obtaining a RIB award for the client. His complaint is that 803 KAR 25:125 exceeds the scope of KRS 342.320 by also requiring the attorney’s fee to be contingent on the worker’s subsequent enrollment and participation as a student. He asserts that this violates equal protection by discriminating against attorneys who represent workers in RIB claims. He also asserts that it violates the public policy embodied in Chapter 342 and, more specifically, in KRS 342.732(l)(a) by discouraging attorneys from undertaking such representation. He concludes that KRS 342.320(2)(a) should govern the payment of attorney fees in RIB claims and that it entitles him to a fee.

KRS 342.732(l)(a)l provides criteria for awarding a RIB. Relevant presently are KRS 342.732(l)(a)2 and 3, which provide criteria for paying benefits under the award. As amended effective July 15, 2002, they provide as follows:

2. Except as provided in subparagraph 3. of this paragraph, these benefits shall be paid only while the employee is enrolled and actively and successfully participating as a full-time student taking the equivalent of twelve (12) or more credit hours per week in a bona fide training or education program that if successfully completed will qualify the person completing the course for a trade, occupation, or profession and which program can be completed within the period benefits are payable under this subsection. The program must be approved under administrative regulations to be promulgated by the executive director. These benefits shall also be paid to an employee who is a part-time student taking not less than the equivalent of six (6) nor more than eleven (11) credit hours per week, except that benefits shall be an amount equal to thirty-three and one-third percent (33-1/3%) of the employee’s average weekly wage as determined by KRS 342.740, but not more than thirty-seven and one-half percent (37-1/2%) of the state average weekly wage, payable biweekly for a period not to exceed two hundred eight (208) weeks.
3. These benefits shall also be paid biweekly while an employee is actively and successfully pursuing a General Equivalency Diploma (GED) in accordance with administrative regulations promulgated by the executive director. These benefits shall be paid in the amount of sixty-six and two-thirds percent (66-2/3%) of the employee’s average weekly wage not to exceed seventy-five percent (75%) of the state average weekly wage for a maximum period not to exceed seventeen (17) weeks. These income benefits shall be in addition to the maximum amount of retraining incentive benefits payable under this paragraph.

KRS 342.732(l)(a)5 requires the period for payment of the benefit to commence no later than 30 days after finality of the award but permits the worker to defer the beginning of the period for up to an additional 365 days. However, if a worker does defer payment for more than an additional 365 days, KRS 342.732(l)(a)10 provides for benefits that would otherwise be payable to be reduced on a week-for-week basis for each week they are deferred.

Counsel relies upon KRS 342.320, which addresses attorney’s fees. As amended effective July 15, 2002, it provides, in pertinent part, as follows:

(2) In an original claim, attorney’s fees for services under this chapter on behalf of an employee shall be subject to the following maximum limits:
(a) Twenty percent (20%) of the first twenty-five thousand dollars ($25,000) of the award, fifteen percent (15%) of the next ten thousand dollars ($10,-000), and five percent (5%) of the remainder of the award, not to exceed a maximum fee of twelve thousand dollars ($12,000). This fee shall be paid by the employee from the proceeds of the award or settlement.
(8) Attorney’s fees for representing employers in proceedings under this chapter pursuant to contract with the employer shall be subject to approval of the administrative law judge in the same manner as prescribed for attorney representation of employees. Employer attorney’s fees are subject to the limitation of twelve thousand dollars ($12,000) maximum fees except that fees for representing employers shall not be dependent upon the result achieved. Employer attorney’s fees may be paid on a periodic basis while a claim is adjudicated and the payments need not be approved until the claims resolution process is completed. Fees for legal services in presenting a claim for reimbursement from the Kentucky coal workers’ pneumoconiosis fund shall not exceed one thousand dollars ($1,000). All such approved fees shall be paid by the employer and in no event shall exceed the amount the employer agreed by contract to pay.

KRS 342.320(l)(a) provides that attorney’s fees “shall be subject to the approval of an administrative law judge pursuant to the statutes and administrative regulations.” KRS 342.732(5) directs the Office of Workers’ Claims to promulgate administrative regulations “sufficient to effectuate the provisions relating to retraining incentive benefits provided under subsection (l)(a) of this section.” Promulgated under KRS 340.260(1) and KRS 342.270(3) as well as under 342.732(5), 803 KAR 25:125 addresses the calculation of an attorney fee for a RIB award under KRS 342.732(l)(a). It provides:

Section 1.
(1) Awards for an attorney’s fee involving retraining incentive benefits shall be made in accordance with KRS 342.320 and 342.040.
(2) If benefits are awarded for retraining pursuant to KRS 342.732(l)(a), an attorney shall file a motion to request an attorney’s fee.
(3) Interim attorney’s fees shall only be paid upon the review and order of an administrative law judge.
(4)(a) Interim attorney’s fee motions shall be filed not less than six (6) months from the time the claimant is enrolled in a bona fide retraining program or GED program.
(b) Interim attorney’s fee motions may be filed:
1. At six (6) months intervals following the first order for the interim attorney’s fee;
2. At the completion of training; or
3. Upon termination from the program.
Section 2.
(1) A value shall be placed on the award, and an attorney’s fee shall be awarded if the claimant:
(a) Is enrolled and has been accepted in a bona fide training program or GED program; and
(b) Does not defer the beginning of benefits pursuant to KRS 342.732(l)(a)5.
(2) If the claimant has enrolled in a bona fide retraining program or GED program, the value of the award shall be based upon the number of weeks completed at the time the interim attorney’s fee motion is filed.
(3)(a) Any value computed for an attorney’s fee shall be limited to the number of weeks of the program completed multiplied by the weekly benefits paid to the claimant.
(b) Costs of tuition, books, completion bonus and moving expenses shall not be considered as part of the benefits in computing the attorney’s fee.
(4) An original award for retraining pursuant to KRS 342.732(l)(a) shall direct the employer and its insurance carrier or Coal Workers’ Pneumoconiosis Fund (CWPF), in claims brought under KRS 342.792, to withhold a specified amount or percentage from each benefit payment in accordance with the percentage limitations specified in KRS 342.320(2)(a).
(5) All interim fees awarded by an administrative law judge as specified in subsection (4) of this section shall be paid directly to the attorney in a lump sum by the employer, its insurance carrier or the Coal Workers’ Pneumoconio-sis Fund (CWPF), subject to the percentage limitations specified in KRS 342.320(2)(a).
(6) If the amount withheld by the employer, its insurance carrier or the Coal Workers’ Pneumoconiosis Fund (CWPF), as required by subsection (4) of this section, is greater than the amount of the attorney’s fee for the interim period, the excess amount shall be paid to the claimant.

Under KRS 342.732(l)(a), the entitlement to a RIB award and the entitlement to benefits under the award are separate matters. Unlike the payment of benefits under awards pursuant to KRS 342.730 or KRS 342.732(1)(b)-(e), the payment of benefits under a RIB award is contingent on the proof of additional facts. Faced with similar statutes in Baker v. Shamrock Coal Co., Inc., 985 S.W.2d 755, 756 (Ky.1999), this court distinguished authority supporting an argument that the attorney’s fee should be based on the worker’s potential recovery and concluded that a fee was premature until the worker was entitled to receive benefits under the award. We explained that the worker was not entitled to a recovery until he met the conditions for benefits to be paid and that the amount of his attorney s fee could not be determined until a benefit was authorized. Furthermore, the fee could not be deducted from payments of benefits until they were made.

Although the present version of KRS 342.320(2)(a) bases the attorney’s fee for a workers’ compensation claim on the amount of the “award,” it clearly requires the fee to be “paid by the employee from the proceeds of the award or settlement.” The purpose of the RIB is to encourage coal workers whose pneumoconiosis presently causes no respiratory impairment to find work outside the mining industry before their condition worsens. See Baker v. Shamrock Coal Co., Inc., supra; Meade v. Spud Mining, 949 S.W.2d 584, 587-88 (Ky.1997). Consistent with that purpose, KRS 342.732(1)(a)2 and 3 condition the receipt of benefits under the award on enrollment and participation as a student. KRS 342.732(l)(a)5 and 10 restrict the time within which benefits must be paid or expire, thereby encouraging the recipient to do so promptly. As a result, a worker who receives a RIB award must also demonstrate that he is entitled to receive benefits under the award for there to be a recovery or proceeds from which to determine the amount of an attorney’s fee and from which to deduct the fee. Id.

Absent a properly supported finding that the claimant was enrolled and actively participating as a student, he was not entitled to receive benefits under his RIB award. For that reason, not only was counsel’s motion for an attorney fee premature under the terms of the employment contract, it was premature under KRS 342.320(2)(a) as well as 803 KAR 25:125. Counsel has not challenged the constitutionality of KRS 342.320; therefore, it is unnecessary for us to address the remainder of his arguments.

The decision of the Court of Appeals is affirmed.

All concur.

      . In another argument, counsel asserts that the ALJ miscalculated the amount of the claimant’s award. This appeal was not taken from the award but from the decision in a post-award motion for an attorney fee; therefore, questions regarding the amount of the award are not properly before the court.

      . KRS 342.732(l)(a)7 permits a worker who is age 57 or older on the date of last exposure to receive an alternate benefit that does not require retraining, but it is inapplicable due to the claimant’s age.