author: BEA ANN SMITH, Justice.

text:
    ZENITH STAR INSURANCE COMPANY, Appellant, v. Glen WILKERSON and Davis and Wilkerson, P.C., Appellees.
    No. 03-03-00586-CV.
    Court of Appeals of Texas, Austin.
    March 25, 2004.
    Rehearing Overruled April 29, 2004.

      J. Stephen Ravel, Diana L. Nichols, Kelly, Hart & Hallman, P.C., Austin, for appellant.
    David P. Boyce, T.B. Wright, Joe R. Greenhill Jr., Wright & Greenhill, PC, Austin, for appellees.
    Before Justices KIDD, B.A. SMITH and PEMBERTON.
   OPINION

BEA ANN SMITH, Justice.

This case requires us to consider to what lengths an attorney must go to zealously represent his client and avoid legal-malpractice liability. It involves a claim by Zenith Star Insurance Company (Zenith) that its lawyer, Glen Wilkerson, committed legal malpractice in a suit seeking workers’ compensation benefits by failing to advance two theories — that venue under the workers’ compensation scheme is jurisdictional and that a plaintiffs mis-identification of a defendant is an affirmative defense. In the original suit seeking benefits, Zenith initially prevailed on a plea to the jurisdiction in a Guadalupe County district court. The Fourth Court of Appeals upheld that decision, but Zenith lost on remand after the court of appeals reversed its decision sua sponte and a jury found in favor of the worker on the merits of the case. Zenith alleges that Wilkerson’s negligence proximately caused its damages in the form of losing at trial on remand. The district court granted summary judgment in favor of Wilkerson. We conclude as a matter of law that Wilkerson was not negligent in failing to assert the jurisdiction and misidentification theories and that such failure was not the proximate cause of Zenith’s injury. Therefore, we affirm the summary judgment granted by the district court.

BACKGROUND

While driving his employer’s vehicle, Leon Galpin suffered injuries that rendered him a quadriplegic. He brought a claim to recover lifetime benefits before the Texas Workers’ Compensation Commission (the Commission) under the labor code. See Tex. Lab.Code Ann. § 409.003 (West 1996). Zenith is the workers’ compensation insurance carrier for Galpin’s employer, and Wilkerson represented Zenith in the administrative proceedings before the Commission. After a contested-case hearing, the Commission appeals panel affirmed the conclusion of the hearing officer denying benefits to Galpin. In July 1997, Galpin timely filed a suit for judicial review in the district court of Bexar County against “Zenith Insurance Company.” See id. § 410.252(a) (West Supp.2004) (to seek judicial review of Commission ruling, party must file suit no later than fortieth day after date on which decision of appeals panel was filed with division of hearings). Zenith’s original answer, prepared by Wilkerson, acknowledged that “Zenith Star Insurance Company,” not “Zenith Insurance Company,” was the proper defendant, and that Galpin had sued the wrong defendant. Galpin eventually moved to substitute Zenith Star Insurance Company for Zenith Insurance Company as the proper party defendant pursuant to stipulation of the parties.

On Zenith’s behalf, Wilkerson filed a plea to the jurisdiction based on Galpin’s failure to “simultaneously” file a copy of his petition with the Commission, see id. § 410.253 (West Supp.2004), and a motion to transfer venue because Galpin had not filed suit in the county where he resided at the time of the injury, see id. § 410.252(b)(1) (West Supp.2004) (party bringing judicial-review suit must file petition with appropriate court in county where employee resided at time of injury or death). The Bexar County court granted the venue transfer to Guadalupe County pursuant to an agreed order but did not dispose of Zenith’s plea to the jurisdiction, noting that Zenith did not waive or abandon its plea by virtue of the transfer. The Guadalupe County district court granted Zenith’s motion to dismiss for lack of subject-matter jurisdiction in March 1998.

Galpin appealed the Guadalupe County court’s final judgment to the Fourth Court of Appeals in San Antonio. On January 27, 1999, that court affirmed the dismissal of Galpin’s suit for want of jurisdiction, holding that the requirements of section 410.253 of the labor code, requiring a copy of the petition to be simultaneously filed with the Commission, were mandatory and jurisdictional. See Galpin v. Zenith Ins. Co., 993 S.W.2d 146, 146-47 (Tex.App.-San Antonio 1999, no pet.). On February 4, 1999, the Texas Supreme Court issued an opinion in Albertson’s, Inc. v. Sinclair, 984 S.W.2d 958, 958-59 (Tex.1999), holding that failure to timely file a copy of the petition with the Commission does not deprive a trial court of jurisdiction to review the denial of benefits. In light of Albert-son’s, the Fourth Court of Appeals on its own motion withdrew its original opinion in Galpin and substituted a new opinion on February 26, 1999, remanding the cause to the trial court. See Galpin, 993 S.W.2d at 147. On remand, a jury found in favor of Galpin, and Zenith was ordered to pay him lifetime benefits.

About sixteen months later, Galpin filed suit in Bexar County alleging that Zenith was acting in bad faith by failing to pay the benefits ordered under the final judgment. The case was transferred to Travis County. Zenith responded by fifing a motion for summary judgment, seeking a declaration that the final judgment rendered by the district court in Guadalupe County was void because the court lacked jurisdiction on two grounds: failure to timely file suit in the proper county and failure to timely file suit against the proper defendant. The Travis County court denied Zenith’s motion. That suit is still pending.

Zenith then filed this legal-malpractice action against Wilkerson in Travis County, asserting that it would have prevailed in the underlying litigation but for Wilkerson’s failure to plead or otherwise raise the following defensive legal theories: the Guadalupe County district court lacked jurisdiction because (1) the suit was initially filed in the wrong county, and (2) the suit was initially brought against the wrong defendant. Wilkerson filed a motion for summary judgment, which the trial court granted. In one issue, Zenith appeals the summary judgment, asserting that the evidence created a fact issue on negligence and that, therefore, Wilkerson was not entitled to judgment as a matter of law.

DISCUSSION

Standard of review

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

Legal malpractice

A legal-malpractice action is based on negligence. Cosgrove v. Grimes, 774 S.W.2d 662, 664 (Tex.1989). A lawyer in Texas is held to the standard of care that would be exercised by a reasonably prudent attorney:

If an attorney makes a decision which a reasonably prudent attorney could make in the same or similar circumstance, it is not an act of negligence even if the result is undesirable. Attorneys cannot be held strictly liable for all of their clients’ unfulfilled expectations. An attorney who makes a reasonable decision in the handling of a case may not be held liable if the decision later proves to be imperfect. The standard is an objective exercise of professional judgment, not the subjective belief that his acts are in good faith.

Id. at 665. The attorney’s conduct must be evaluated by the fact-finder based on the information the attorney has at the time of the alleged act of negligence. Id. at 664. To recover on a negligence claim, the plaintiff must prove four elements: (1) that there is a duty owed to him by the defendant, (2) a breach of that duty, (3) that the breach proximately caused the plaintiff injury, and (4) that damages occurred. Id. at 665 (citing McKinley v. Stripling, 763 S.W.2d 407 (Tex.1989)). Zenith asserts that summary judgment was improper because Wilkerson failed to sustain his burden to show that there is no fact issue on the elements of breach and proximate cause in light of Zenith’s evidence in the form of a lawyer’s affidavit opining that Wilkerson’s errors constituted negligence and caused Zenith’s injury. We will address the elements of breach and proximate cause as they pertain to venue and misidentification separately.

A. Venue

Zenith asks this Court to remand this cause because the question of whether Wilkerson was negligent with respect to its first “defense” — that filing suit in the wrong venue deprived the trial court of subject-matter jurisdiction — is a fact question to be decided by a jury and cannot be decided as a matter of law. We turn to this defense first as it relates to the breach element of malpractice.

Because a lawyer is held to the standard of care that would be exercised by a reasonably prudent attorney, expert testimony of an attorney is usually necessary to establish the standard of skill and care ordinarily exercised by an attorney. Hall v. Rutherford, 911 S.W.2d 422, 424 (Tex.App.-San Antonio 1995, writ denied). To establish compliance with the standard, expert testimony is also usually required. Jatoi v. Decker, Jones, McMackin, Hall & Bates, 955 S.W.2d 430, 434 (Tex.App.-Fort Worth 1997, writ denied). Once the defendant in a legal malpractice suit has submitted expert testimony on the standard of care, the plaintiff is then required to controvert the expert testimony with other expert testimony. Id. (citing Anderson v. Snider, 808 S.W.2d 54, 55 (Tex.1991)). Zenith cites Wilkerson’s summary-judgment motion, which was not supported by expert testimony going to the venue defense. Wilkerson rejoins that expert testimony is required only when the issue of an attorney’s negligence is a question of fact, not when it is a question of law.

Wilkerson cites a legal-malpractice treatise requiring two issues to be resolved when an attorney is charged with an error regarding the failure to raise a defensive legal theory: first, whether the attorney erred; and second, whether such error was caused by the attorney’s negligence. Ronald E. Mallen & Jeffrey M. Smith, Legal Malpractice § 38.11 (5th ed.2000). The first issue is a question of law, while the second is one of fact. Id. Before the second question can be reached, a court must initially determine whether the attorney erred, which is a question of law for the court. Id.; see Campbell v. Doherty, 899 S.W.2d 395, 398 (Tex.App.-Houston [14th Dist.] 1995, writ denied) (upholding summary judgment for defendant in legal malpractice action after finding that jury instruction, to which attorney allegedly failed to object, was legally correct). Wilkerson could only have erred by failing to assert the “defenses” about which Zenith complains if such defenses were legally valid. Whether a defense is legally valid is a question of law. See Mallen & Smith § 33.11. As Wilkerson sums up, “if Wilkerson was correct on the law, he could not be negligent.” We agree.

Zenith insists that the law about whether venue is jurisdictional was settled when Galpin’s lawsuit was filed and that it compelled a reasonable attorney to advance the defense or be subject to malpractice liability. Zenith cites Federal Underwriters Exchange v. Pugh and several opinions from various court of appeals for this proposition. See 141 Tex. 539, 174 S.W.2d 598, 600 (1943); e.g., Castillo v. Allied Ins. Co., 537 S.W.2d 486, 487 (Tex.Civ.App.-Amarillo 1976, writ ref'd n.r.e.); Leadon v. Truck Ins. Exch., 253 S.W.2d 903, 904-05 (Tex. Civ.App.-Galveston 1952, no writ); Garrett v. Hartford Accident & Indem. Co., 107 S.W.2d 726, 728 (Tex.Civ.App.-Eastland 1937, no writ). While noting that the settled law prior to 1931 dictated that filing suit in the statutory venue was jurisdictional, see Mingus v. Wadley, 115 Tex. 551, 285 S.W. 1084, 1088 (1926), overruled by Dubai Petroleum Co. v. Kazi, 12 S.W.3d 71, 76 (Tex.2000), Pugh actually reversed that law in response to an amendment to the statute allowing a court to transfer a case filed in the wrong venue to the proper court. Pugh, 174 S.W.2d at 600. The intermediate-court cases Zenith cites are not on point, as they speak to a court’s lack of subject-matter jurisdiction when a party misses the statutory time limit by first filing suit in federal court, not when a party files in the wrong county. See Leadon, 253 S.W.2d at 904-05; Garrett, 107 S.W.2d at 728. Castillo, while somewhat on point, merely reinforces Pugh by noting that the venue statute specifically allows transfer of a case to the proper venue. Castillo, 537 S.W.2d at 487. Thus, if the law was “settled” on the topic of venue in workers’ compensation cases after Pugh, it cut against Zenith’s interpretation by holding that venue was not jurisdictional, and a suit filed in a non-mandatory county could be transferred to the county of mandatory venue.

Yet, continues Zenith, even if Pugh was the controlling law at the time of the underlying judicial proceedings, the legislature amended section 410.252 in 1989 to remove the language allowing transfer to the proper court. See Act of Dec. 12, 1989, 71st Leg., 2d C.S., ch. 1, § 16.01(11), 1989 Tex. Gen. Laws 1, 114, amended by Act of May 12,1993, 73d Leg., R.S., ch. 269, § 1, sec. 410.252, 1993 Tex. Gen. Laws 987, 1209. Thus, it implies, Mingus was reinstated as the controlling law, and proper venue once again became jurisdictional. See Mingus, 285 S.W. at 1088. We reject this argument. The legislature’s enactment of a new workers’ compensation statute that omitted language allowing for the transfer of a case filed in the wrong county does not mean that the legislature intended to overrule Pugh. Nothing in the new law’s language indicates the legislative intent to make filing in the mandatory venue jurisdictional. Moreover, courts must liberally construe workers’ compensation legislation in favor of the worker. See Lujan v. Houston Gen. Ins. Co., 756 S.W.2d 295, 297 (Tex.1988). We conclude that, contrary to Zenith’s assertion, the law at the time Galpin filed suit did not provide that venue was jurisdictional; if anything, the law was unsettled at the least, if not settled in the opposite vein.

Even if the effect of filing suit in the wrong county was unsettled, the question of whether venue was jurisdictional remains a question of law. Courts routinely decide unsettled questions of law, weighing arguments and authority on both sides of an issue and determining which is the legally correct outcome. To resolve this question of law, we review opinions issued during and after the pendency of these proceedings.

The supreme-court case Albertson’s v. Sinclair, on which the San Antonio court of appeals based its sua sponte reversal in Galpin’s appeal, spoke specifically to the question of whether a plaintiffs timely filing of a copy of its petition with the Commission is jurisdictional. However, the language and reasoning of the opinion indicate a broader application. While concluding that the Commission filing requirement is mandatory, the Court also stated that “just because a statutory requirement is mandatory does not mean that compliance with it is jurisdictional.” Albertson's, 984 S.W.2d at 961 (citing Hines v. Hash, 843 S.W.2d 464, 467 (Tex.1992)). “When the statute is silent about consequences of noncompliance, we look to the statute’s purpose in determining the proper consequences of noncompliance. [Citations omitted.] Further, we liberally construe workers’ compensation legislation to carry out its evident purpose of compensating injured workers and their dependents.” Id. Finally, the Court concluded that, even though the filing requirement is mandatory, “[njevertheless, the liberal construction we must give workers’ compensation laws precludes a jurisdictional interpretation.” Id. The liberal construction we too must give workers’ compensation laws compels the similar conclusion that, while venue in a particular county is mandatory, it is not jurisdictional.

In a case directly on point, this Court has since held that section 410.252(b) of the labor code applies to the venue of an appeal to the district court, but not to the court’s jurisdiction to hear a particular type of case. Hartford Underwriters Ins. Co. v. Hafley, 96 S.W.3d 469, 473 (Tex.App.-Austin 2002, no pet.) (citing Dubai Petroleum Co. v. Kazi, 12 S.W.3d 71 (Tex. 2000)). Looking to the terms of the statute, we concluded in Hafley that “[t]he section heading describes it as a venue provision. By its language, the section does not limit or create specific powers in a specific district court, nor does it indicate that other district courts should be denied jurisdiction over worker’s compensation appeals.” Id. <cWhen a statutory prerequisite to suit is such that it affects only venue, without making any substantive change in the court’s inherent power, it should not be held jurisdictional.... Therefore, [section 410.252] raises a question of venue, rather than subject-matter jurisdiction.” Id. We hold that, as a matter of law, Zenith had no valid jurisdictional defense resting on a claim of mandatory venue. Wilkerson did not err in failing to assert this non-viable legal defense.

We now turn to Zenith’s claim that Wilkerson’s failure to assert the venue defense proximately caused it to lose on remand. To address this claim, we assume for the sake of argument that Wilkerson did breach the standard of care he owed to Zenith. Even if Wilkerson could have validly advanced the venue defense, Zenith would also have to prove that Wilkerson’s omission was the proximate cause of its damages. When a legal-malpractice claim arises from prior litigation, the plaintiff has the burden to prove that but for the attorney’s negligence, the plaintiff would be entitled to judgment, and to show what amount he would have recovered in the judgment. Hall, 911 S.W.2d at 424; Mackie v. McKenzie, 900 S.W.2d 445, 449 (Tex.App.-Texarkana 1995, writ denied). Whether the attorney’s negligence is the but-for, or proximate, cause of the client’s unsuccessful suit is usually a question of fact. See Millhouse v. Wiesenthal, 775 S.W.2d 626, 627 (Tex.1989) (recognizing general rule that causation is fact question, but finding that causation in appellate legal-malpractice case is question of law); Mackie, 900 S.W.2d at 449. “Nonetheless, causation may be determined as a matter of law if the circumstances are such that reasonable minds could not arrive at a different conclusion.” Mackie, 900 S.W.2d at 449 (citing Missouri Pac. R.R. Co. v. American Statesman, 552 S.W.2d 99, 105 (Tex.1977)); see Swinehart v. Stubbeman, McRae, Sealy, Laughlin & Browder, Inc., 48 S.W.3d 865, 875 (Tex.App.-Houston [14th Dist.] 2001, pet. denied) (summary judgment proper if it is shown that attorney’s act or omission was not cause of damages to client); MND Drilling Corp. v. Lloyd, 866 S.W.2d 29, 32 (Tex.App.-Houston [14th Dist.] 1987, no writ).

Because the “defense” — that Galpin’s filing in the wrong county deprived the Bexar County court of jurisdiction — was not a legally valid defense, we conclude that no reasonable mind could conclude that but for Wilkerson’s failure to assert this “defense,” Zenith would ultimately have prevailed. Even if the original trial court had adopted Zenith’s venue argument and granted a plea to the jurisdiction on that ground, the only reasonable conclusion is that when Galpin appealed the case, the San Antonio court of appeals would have ultimately held, in light of Al-bertson’s, that the jurisdictional defense of venue was invalid, as discussed above. Because Zenith’s ultimate victory hinged on the availability of this “defense,” which is a question of law, our holding as to the availability of that defense makes the question of whether a failure to assert it resulted in Zenith’s loss also a question of law.

Zenith alternatively argues that Wilkerson should have advanced the failure to bring suit in the proper county as an “affirmative defense,” because it would have defeated Galpin’s right to go forward with his suit. See Dubai, 12 S.W.3d at 76-77 (right of plaintiff to maintain suit, though sometimes treated as going to question of jurisdiction, more appropriately goes to right of plaintiff to relief). Although we agree with Zenith that bringing suit in the county of mandatory venue is necessary, any reasonable attorney receiving an answer alleging such an “affirmative defense” would file a motion to transfer venue to the proper county. Wilkerson’s filing of a motion to transfer venue to the statutorily mandated county was not negligent, but rather competent and appropriate under the circumstances. We overrule Zenith’s issue as it relates to Wilkerson’s failure to advance venue as a jurisdictional defense.

B. Misidentification

Zenith also urges that the trial court improperly granted summary judgment because there is a fact issue on the elements of breach and proximate cause with respect to Wilkerson’s failure to assert the “defense” of misidentification of the defendant in the underlying action. Citing Roberts v. Tarrant County Junior College, 842 S.W.2d 835, 836-37 (Tex.App.Fort Worth 1992, writ denied), Zenith asserts that the failure to properly name the correct defendant in a petition deprives the court of jurisdiction to hear the case. See also Brown v. McMillan Material Co., 108 S.W.2d 914, 916 (Tex.Civ.App.-Eastland 1937, writ ref d) (holding former act’s requirement that suit be filed against proper defendant within twenty days was jurisdictional). However, Zenith ignores precedent from the supreme court holding that if a plaintiff can prove that the proper defendant was not prejudiced by a mistake in the pleading misidentifying it, then limitations would not operate to bar the suit. See Enserch Corp. v. Parker, 794 S.W.2d 2, 4-5 (Tex.1990) (citing Cont'l S. Lines, Inc. v. Hilland, 528 S.W.2d 828, 831 (Tex. 1975)); see also Flour Bluff Indep. Sch. Dist. v. Bass, 47 Tex. Sup.Ct. J. 310, 2004 WL 389428, 2004 LEXIS 164 (Feb. 27, 2004) (per curiam) (statute of limitations tolled in misidentification cases if there are two separate, but related, entities that use similar trade name and correct entity had notice of suit and was not misled or disadvantaged by mistake); Chilkewitz v. Hyson, 22 S.W.3d 825, 830 (Tex.1999) (same); Ealey v. Insurance Co. of N. Am., 660 S.W.2d 50, 52 (Tex.1983) (erroneous identification by insurance carrier of itself in petition did not disadvantage defendant, where petition and prior proceedings before Industrial Accident Board made it clear which party was appealing Board’s decision); Sanchez v. Aetna Cas. & Surety Co., 543 S.W.2d 888, 890 (Tex.Civ.App.-San Antonio 1976, writ ref'd n.r.e.) (same).

Zenith’s argument relies on the presumption that, had Wilkerson asserted the defense that the wrong arm of the Zenith companies had been sued, or had he moved to dismiss the suit because of the misiden-tification, Galpin’s suit would have been disposed of and Zenith ultimately would have prevailed. However, even if Wilkerson had proceeded as Zenith now claims he should have, Galpin would still have been able to amend his pleadings and sue the proper Zenith company under supreme-court precedent allowing the tolling of limitations when a party has been misidentified and there is no prejudice to that party by the mistake. See Enserch, 794 S.W.2d at 5; Hilland, 528 S.W.2d at 831. The evidence shows that Zenith would not have been prejudiced, and we conclude that Zenith’s misidentification argument has no merit on either the breach or proximate-cause prongs of a negligence claim. We overrule Zenith’s issue as it relates to the misidentification theory.

CONCLUSION

As a matter of law, Wilkerson did not breach the duty of care owed to Zenith nor did Wilkerson’s representation proximately cause Zenith’s alleged injury. We affirm the district court’s grant of summary judgment in favor of Wilkerson.

      . Zenith sued both, Gien Wilkerson and his law firm, Davis & Wilkerson, P.C. For the sake of convenience, we will refer to Mr. Wilkerson and the law firm collectively as Wilkerson.

      . The current labor code is cited for convenience because the substantive portions of the relevant sections have not changed since the time Galpin brought this suit. When an issue turns on a portion of the statute that has been amended since Galpin’s suit was filed, the statute as it previously appeared will be cited.

      . Former section 410.252 read:
      § 410.252 Time for Filing Petition; Venue (a)A party may seek judicial review by filing suit not later than the 40th day after the date on which the decision of the appeals panel was filed with the division.
      (b) The party bringing suit to appeal the decision must file a petition with the appropriate court in:
      (1) the county where the employee resided at the time of the injury or death, if the employee is deceased; or
      (2) in the case of an occupational disease, in the county where the employee resided on the date the disability began or any county agreed to by the parties.
      Act of May 12, 1993, 73d Leg., R.S., ch. 269, § 1, sec. 410.252, 1993 Tex. Gen. Laws 987, 1209. The section was amended in 2003 by the addition of subsections (c) and (d):
      (c) If a suit under this section is filed in a county other than the county described by Subsection (b), the court, on determining that it does not have jurisdiction to render judgment on the merits of the suit, shall transfer the case to a proper court in a county described by Subsection (b). Notice of the transfer of a suit shall be given to the parties. A suit transferred under this subsection shall be considered for all purposes the same as if originally filed in the court to which it is transferred.
      (d) If a suit is initially filed within the 40-day period in Subsection (a), and is transferred under Subsection (c), the suit is considered to be timely filed in the court to which it is transferred.
      Act of May 28, 2003, 78th Leg., R.S., ch. 663, § 1, sec. 410.252, 2003 Tex. Gen. Laws 2082, 2082 (codified at Tex. Lab.Code Ann. § 410.252 (West Supp.2004)).

      . Wilkerson’s motion was accompanied by his own affidavit but spoke only to the misidenti-fication defense, not to the venue defense.

      . Indeed, evidence of contrary legislative intent is revealed in the Guide to Worker's Compensation Reform, authored by some of the 1989 act's primary sponsors, in which the authors write in terms of "mandatory venue” for suits under the act. See John T. Montford, Will Barber, & Robert Duncan, Guide to Texas Workers’ Comp Reform § 6.61 (1991). The use of "mandatory venue” implies that venue under the act is no greater an obstacle to recovery for a plaintiff than venue is in other civil suits, which allow for the transfer by a party of a case to a county of mandatory venue. See Tex. Civ. Prac. & Rem.Code Ann. §§ 15.001 (proper venue is that required by statute prescribing mandatory venue), .016 (action must be brought in county required by statute’s mandatory-venue provision), .063 (court shall transfer action to county of proper venue if county in which action is pending is not county of proper venue) (West 2002); Tex.R. Civ. P. 86 (objection to improper venue must be made by written motion prior to or concurrently with any other plea, pleading, or motion other than special-appearance motion). Furthermore, the heading of the statute in place during the relevant proceedings reads, "Time for Filing Petition; Venue." See Act of Dec. 12, 1989, 71st Leg., 2d C.S., ch. 1, § 16.01(11), 1989 Tex. Gen. Laws 1, 114, amended by Act of May 12, 1993, 73d Leg., R.S., ch. 269, § 1, sec. 410.252, 1993 Tex. Gen. Laws 987, 1209 (emphasis added).

      . This is not a situation where during the relevant time when an attorney was allegedly negligent there was clear, controlling authority requiring an action that the attorney failed to take. Under such circumstances, the attorney would most likely have committed error, even despite later controlling authority reversing the state of law after the mandate in the underlying case had issued. However, such are not the facts of this case; rather, the state of the law was at least unclear, and in any event did not require the actions now advanced by Zenith.

      . In rejecting Zenith's arguments, we note our reluctance to condone a rule that subjects competent attorneys to liability for failing to assert every conceivable defense tactic under the sun, despite the availability of alternative, well-known tools such as motions to transfer venue. The practice of law is adversarial enough without attorneys having to eschew expense- and time-saving measures such as agreed motions to transfer venue. Had Wilkerson pursued the venue-is-jurisdictional defense, he might even have been subject to sanctions for asserting a frivolous defense.

      . The record indicates that both “Zenith Insurance Company” and "Zenith Star Insurance Company” were indicated on different filings by both sides in the Commission proceedings. Also, Wilkerson directed all of his communication, oral and written, to Zenith Insurance Company throughout the administrative and judicial proceedings. Wilkerson’s affidavit states that Zenith personnel were aware of the misidentification immediately and consented to the substitution of "Zenith Star” as the proper defendant.


source: Caselaw Access Project

author: W. KENNETH LAW, Chief Justice.

license: Public Domain

text:
    Albert HAWKINS, in his capacity as Commissioner of Health & Human Services; the Texas Health and Human Services Commission; and the Texas Department of Health, Appellants, v. DALLAS COUNTY HOSPITAL DISTRICT d/b/a Parkland Health and Hospital System, Appellee.
    No. 03-03-00355-CV.
    Court of Appeals of Texas, Austin.
    April 8, 2004.

      Robert L. Seibert, Asst. Atty. Gen., Austin, for Appellants.
    Susan G. Conway, Vinson & Elkins, L.L.P., Austin, J.D. Epstein, Allyson Hancock Kinzel, Vinson & Elkins, L.L.P., Houston, for Appellee.
    Before Chief Justice LAW, Justices B.A. SMITH and PATTERSON.
   OPINION

W. KENNETH LAW, Chief Justice.

In this appeal, we consider the rules and formulas used to reimburse Texas teaching hospitals for a portion of their annual costs of providing graduate medical education to resident physicians. We affirm the judgment of the district court.

BACKGROUND

The dispute in this case requires us to discern the intent of the legislature when it created statutory language concerning how to allocate particular Medicaid funds to teaching hospitals in Texas. These funds are meant to reimburse those hospi-tais for some of the costs associated with training medical residents. Thus, we will begin with a brief overview of the Medicaid program in Texas as it relates to these funds.

Medicaid is a federal-state assistance program, run by state governments within federal guidelines, that pays for health care services provided to eligible recipients — low-income people of any age — from federal, state, and local tax funds. See 42 U.S.C.A. §§ 1396-1396v (West 2003). It is administered by the states. See id. §§ 1396, 1396(a)(2). The federal government pays a percentage of the total cost that a participating state incurs in providing Medicaid services. Id. § 1396b. Under the federally approved plan for the administration of the Medicaid program in Texas, teaching hospitals that provide inpatient hospital services to Medicaid-eligible individuals are entitled to Medicaid reimbursement for the cost of these services, including reimbursement for a portion of the costs associated with the hospital’s resident-physician graduate medical-education and training (GME costs). See id. §§ 1396,1396a, 1396d(a).

A similar program exists in Medicare, and in April 1986 Congress established the current federal method for calculating reimbursable GME costs under that program. See id. § 1395ww(h) (West 2003); 42 C.F.R. § 413.86 (2004). Instead of annual determinations of cost actually incurred, Congress designated 1984 a baseline year for cost determinations, i.e., costs “recognized as reasonable” for that year would serve as the base figure used to calculate Medicare GME reimbursements for all subsequent years. See Regions Hosp. v. Shalala, 522 U.S. 448, 453, 118 S.Ct. 909, 139 L.Ed.2d 895 (1998). The 1984 per-resident amount, adjusted for inflation, would then be used to determine the provider’s GME reimbursements for all fiscal years “beginning on or after July 1, 1985.” See id. The provider’s reimbursable costs for a particular year would be computed by multiplying the inflation-adjusted 1984 per-resident amount by the provider’s weighted number of full-time-equivalent residents, as determined by section 1395ww(h)(4), and the hospital’s Medicare patient load, as described in section 1395ww(h)(3)(C). No federal guideline governs the disbursement of Medicaid funds for GME costs.

In Texas, the Health and Human Services Commission (the department), of which Hawkins is the commissioner, directs the disbursement of Medicaid funds. Tex. Gov’t Code Ann. § 531.005 (West 1998), § 531.0055 (West Supp.2003); Tex. Hum. Res.Code Ann. § 32.021 (West Supp. 2003). In 1997, the legislature directed the department to establish procedures and formulas to govern the allocation of these funds. See Act of May 12, 1997, 75th Leg., R.S., ch. 252, § 1, 1997 Tex. Gen. Laws 1182, 1182-84 (amended in part by and repealed in part by Act of June 2, 2003, 78th Leg., R.S., ch. 198, §§ 2.100(a), (b), 2003 Tex. Gen. Laws 611, 689) (Former section 32.0315). At that time, the department calculated GME reimbursement based on a formula under rules substantially unchanged since 1987. Under the rule, the department used the federal Medicare reimbursement formula and, by reference, the GME cost-calculation methods and procedures prescribed under the federal Medicare Act. See 1 Tex. Admin. Code § 355.8063 (2003) (rule 8063). The difference between the two formulas can be simplified in this way: the department rule, mirroring the federal approach for the disbursement of Medicare funds, determines the GME by using a 1984 “base-period” figure (a hospital’s Medicare-allowable GME costs for fiscal year 1984), adjusted for inflation to the current year, see id. § 355.8063(a); the formula found in former section 32.0315 instead relies on a “hospital’s annual cost of training resident physicians for the fiscal year” for which it is to be reimbursed. The department did not amend its rules or methodologies after former section 32.0315 went into effect.

Dallas County Hospital District operates Parkland Memorial Hospital (Parkland). Parkland is the sole public hospital in Dallas County and the principal component of the health and hospital system in the Dallas County Hospital District. Parkland is an eligible Medicaid health care services provider under the Texas Medicaid program, and a teaching hospital entitled to Medicaid reimbursement for inpatient hospital services provided to Medicaid patients.

Parkland sued the department in district court, seeking a declaratory judgment that the rules, procedures and formulas used by Hawkins to allocate and distribute federal Medicaid funds were invalid and contrary to section former 32.0315. Parkland also sought a permanent injunction to enjoin the department from using the invalid rules, procedures, and formulas when calculating GME cost reimbursement. Parkland calculated that, for the period from 1998 to 2001, the department underpaid it $72,371,632 by using the base-year GME costs rather than the actual GME costs. In granting summary judgment and a permanent injunction in favor of Parkland, the district court declared that the rules, procedures, and formulas employed by the department, including rule 8063, violated the reimbursement calculation methodology guidelines promulgated in section 32.0315. See Former § 32.0315. This appeal followed.

DISCUSSION

In one issue, the department argues that former section 32.0315 authorized it to establish an alternative formula to reimburse a teaching hospital for the annual costs incurred to provide graduate medical education. See id. § 32.0315. In particular, it believes that various subsections of former section 32.0315 granted broad power to the department to establish formulas and methodologies to disburse Medicaid funds to teaching hospitals. Thus, it asserts that the statute, when read as a whole, indicates that the legislature offered the department an advisory, but not mandatory, reimbursement formula while at the same time giving the department discretion to establish an alternative formula.

Statutory construction is a question of law, which we review de novo. See Johnson v. City of Fort Worth, 774 S.W.2d 653, 656 (Tex.1989). The primary rule of statutory interpretation is to construe the statute as a whole so as to give effect to the legislative intent. See State v. Public Util. Comm’n, 883 S.W.2d 190, 196 (Tex.1994); see also Citizens Bank of Bryan v. First State Bank, 580 S.W.2d 344, 348 (Tex.1979). We are bound to construe the statute as written and, if possible, ascertain the legislature’s intent from the language used in the statute. Del Indus., Inc. v. Tex. Wor&ers’ Comp. Ins. Fund, 973 S.W.2d 743, 745 (Tex.App.-Austin 1998), aff'd, 35 S.W.3d 591 (Tex.2000).

Statutory provisions, however, must not be isolated from the surrounding language nor construed apart from their context. Id. at 746. Disputed provisions of a statute are to be considered in context, not in isolation. See Texas Workers’ Comp. Comm’n v. Continental Cas. Co., 83 S.W.3d 901, 905 (Tex.App.-Austin 2002, no pet.); see also Fitzgerald v. Advanced Spine Fixation Sys., 996 S.W.2d 864, 866 (Tex.1999). When interpreting a statute, we should give effect to all words of a statute and, if possible, not treat any statutory language as mere surplusage. See Continental Cas. Ins. Co. v. Functional Restoration Assoc., 19 S.W.3d 393, 402 (Tex.2000). We must presume that in enacting the statute the legislature intended the entire statute to be effective. See Tex. Gov’t Code Ann. § 311.021(2) (West 1988). We presume that the legislature intended a reasonable and just result in enacting a statute. Id. § 311.021(3). In doing so, we are to consider, among other factors, the language of the statute, its legislative history, the nature and object to be obtained, and the consequences that would follow from alternative constructions, even when a statute is not ambiguous on its face. See Helena Chem. Co. v. Wilkins, 47 S.W.3d 486, 493 (Tex.2001).

When we consider former section 32.0315, we note that the legislature directed that the department “shall reimburse each teaching hospital” using the statutory formula. See Former § 32.0135(d). Under our rules of statutory construction, “shall” is generally construed to be mandatory, but may in limited circumstances be construed to be directory. See Tex. Gov’t Code Ann. § 311.016 (West 1998); Chisholm v. Bewley Mills, 155 Tex. 400, 287 S.W.2d 943, 945 (1956). In determining whether the legislature intended the particular provision to be mandatory, we should consider the nature and object of the entire act and the consequences that would follow each construction. Id. On its face, former subsection 32.0315(d) appears to be mandatory. See id. Because Hawkins argues that other subsections of former section 32.0315 contradict this interpretation, we now turn to the remainder of the statute to glean the intent of the legislature.

First, former section 32.0315(a) directs that the department “shall establish procedures and formulas for the allocation of federal medical assistance funds that are directed to be used to support graduate medical education.” When we read this subsection with former section 32.0315(d), we note that the latter, in setting a formula, leaves undefined the methodology for the department to use to determine the values of several variables in any given situation. For example, it does not provide a formula to determine what constitutes a “patient day,” either for Medicaid or for general accounting purposes. See Former § 32.0135(d). It does not define or describe how the department is to determine the annual cost of training resident physicians. See id. It does not provide criteria for determining how to determine “the weighted number of full-time equivalent resident physicians.” See id. Thus, in order to implement the statutory formula, it was necessary for the department to formulate additional procedures and formulas. As a result, in former section 32.0315(a), the legislature seemed to have granted the department the authority to develop these necessary definitions and formulas in order to give effect to the reimbursement formula.

Next, former section 32.0315(b) directed that the department “shall allocate the funds in the manner the department determines most effectively and equitably achieves the purposes for which those federal funds are received.” It also mandated that the department should take “into account other money available to support graduate medical education.” Former § 32.0315(b). The focus of this subsection was not on the amounts to be reimbursed to each teaching hospital. Compare id., with Former § 32.0315(d). In other words, when determining the amount available for the reimbursement program, the department was to consider all funds available to support graduate medical education. In addition, the former section 32.0315(d) did not indicate that use of the statutory formula to reimburse teaching hospitals will exhaust all funds available. It did, however, outline various state policy objectives for the disbursement of funds. Former section 32.0315, then, limited the authority of the department in making the determinations allowed under the previous two subsections — -in adopting or revising any formula, the department must have consulted with the Texas Higher Education Consulting Board.

Turning, then, to former section 32.0315(e), we note this subsection did not address the required formula for determining Medicaid reimbursement. Instead, it focused on the sources of information from which the department could establish a hospital’s “average annual cost for training residents” — a variable in the former section 32.0315(d) formula defined as “GME.” In arriving at a figure to use for that variable, the department could have used “the most recent Medicaid cost report submitted to the department by the hospital,” or it could have developed “alternative procedures to establish that cost.” See Former § 32.0315(e). Whatever method the department chose, it was bound by the statutory definition, which limited the scope of the variable to the costs of training for the fiscal year.

We conclude, then, that former section 32.0315(d) created a mandatory formula for the department to determine the amounts of medical-education costs for the purposes of reimbursement. Former sections 32.0315(a), 32.0315(b), 32.0315(c), and 32.0315(e) granted the department limited discretionary powers to calculate the values of particular statutory variables, but the department could not contradict the terms of the formula. To hold otherwise would render irrelevant the formula in former section 32.0315(d).

CONCLUSION

Because we overrule the department’s issue, we affirm the judgment of the district court.

      . The federal Department of Health and Human Services provides a concise summary of the Medicaid law as it relates to the federal-state partnership. See Centers for Medicare and Medicaid Services, Welcome to Medicaid: Site for State & Territorial Government Information, at http://www.cms.hhs.gov/states/de-fault.asp (last visited Mar. 19, 2004).

      . Medicare is a distinct medical insurance program run by the federal government that pays for health care services provided to covered beneficiaries — primarily people over the age of 65, regardless of income, and younger disabled and dialysis patients. See 42 U.S.C. §§ 1395-1395gg (West 1992 & Supp.2003).

      . Appellants present their legal issue together in one brief. Because that issue concerns the statutory authority of the health and human services commission, referred to as “the department” in the statute in question, we will refer to them collectively as "the department” when discussing their legal claims. See Tex. Hum. Res.Code Ann. § 32.003(3) (West 2001).

      . From 1991 to 1999, this program was operated by the department of health under an agreement with the health and human services commission.

      . Former section 32.0315 provided in relevant part:
      (a) The department shall establish procedures and formulas for the allocation of federal medical assistance funds that are directed to be used to support graduate medical education in connection with the medical assistance program.
      (b) The department shall allocate the funds in the manner the department determines most effectively and equitably achieves the purposes for which those federal funds are received, consistent with the needs of this state for graduate medical education and the training of resident physicians in accredited residency programs in appropriate fields and specialties, taking into account other money available to support graduate medical education. In determining the needs of this state for graduate medical education, the department shall give emphasis to graduate medical education in primary care specialties.
      (c) The department shall consult with the Texas Higher Education Coordinating Board before adopting or revising a formula under this section. At the request of the department, the coordinating board shall provide the department with any information the board possesses to assist the department in administering this section.
      (d) The department shall reimburse each teaching hospital under this section using the following formula:
      R = GME/P x WNP x MD/TD
      where:
      "R” is the annual amount to be reimbursed;
      "GME” is the hospital’s annual cost of training resident physicians for the fiscal year; "P” is the number of resident physicians for the fiscal year;
      "WNP” is the weighted number of full-time equivalent resident physicians trained by the hospital during the fiscal year and reported on its Medicaid cost report, adjusted to count each full-time equivalent resident in primary care as 1.2 residents and each other full-time equivalent resident as 1.0 residents;
      "MD” means the number of patient days for the hospital for the fiscal year that are attributable to Medicaid patients; and "TD” means the total number of patient days for the hospital for the fiscal year,
      (e)To determine a teaching hospital's average annual cost for training residents for purposes of this section, the department may use the most recent Medicaid cost report submitted to the department by the hospital, or may establish alternative procedures to determine that cost.
      The legislature repealed subsections d and e in 2003. See Act of June 2, 2003, 78th Leg., R.S., ch. 198, §§ 2.100(a), (b), 2003 Tex. Gen. Laws 611, 689.

      . The rules outlined the department’s formula in this way:
      [T]he department ... groups hospitals into payment divisions using the average base year payment per case in each hospital after adjusting each hospital's base year payment per case by a case mix index, a cost-of-living index, and a budgetary reduction factor of 10%.
      1 Tex. Admin. Code § 355.8063(a) (2003). They then defined "base year payment per case” as

        The payment that would have been made to a hospital at the time covered inpatient hospital services were provided if the department or its designee reimbursed the hospital under similar methods and procedures used in the Social Security Act, Title XVIII [the Medicare Act], as amended, effective October 1, 1982 by public law 97-248.

        Id. § 355.8063(b)(6).
      The rule does not exactly lay out a formula for determining reimbursement. See id. Scott Reasonover, the department’s manager of the hospital rate analysis division, articulates the formula he used, and has continued to use after the repeal of former section 32.0315(d), in this way:
      R = (PRA) x (Weighted number of resident FTEs) x (MD/THD)
      where:
      "R" is the amount to be reimbursed;
      “PRA” is the hospital’s allowable graduate medical education cost of training resident physicians for the cost reporting period beginning on or after October 1, 1983 but before October 1, 1984, divided by the average number of full-time equivalent resident physicians for the cost reporting period beginning on or after October 1, 1983 but before October 1, 1984. The per resident amount is then adjusted for inflation;
      "Weighted number of resident FTEs” is the weighted number of full-time equivalent resident physicians trained by the hospital during the cost reporting period;
      “MD" is the total number of hospital patient days during the cost reporting period that are attributable to patients for whom payment is made by Medicaid. In calculating Medicaid patient days, nursery days are excluded;
      "TD” is the total number of hospital patient days during the cost reporting period.
      In calculating total hospital inpatient days, nursery days are excluded.

      . The parties in this case do not dispute other factors that may differ between the two formulas.

      . Because Parkland is the sole Medicaid-eligible hospital in the Dallas County Hospital District, we will refer to the appellee as "Parkland” in this opinion.

      . In its summary judgment evidence, Parkland i nluded these figures:
      Fiscal Year Amount allocated as a result of the department's formula Allocation resulting from using section 32.0315(d) Difference
      1998 $ 6,356,013 $22,220,937 $15,844,924
      1999 $ 6,932,503 $24,230,656 $17,298,154
      2000 $ 6,690,777 $26,183,281 $19,222,504
      2001 (interim) $ 6,960,777 $26,966,827 $20,006,050
      Total $27,210,070 $99,601,733 $72,371,632

        We are aware that the arithmetic reflected in these figures is not entirely accurate. However, we reproduce them as contained in the record.

      . The department additionally states that the legislature never funded the increased expenditures that our holding would require if Parkland's figures are correct. It asserts that fact should compel us to consider our interpretation of former section 32.0315 unreasonable and unjust. See Tex. Govt Code Ann. § 311.021(2) (West 1998). Rather, if the legislature did not provide the appropriate amount of funding, the problem is that the legislature created an "unfunded mandate,” not that the statute ought to be interpreted in a different way. This grievance is most appropriately brought to the legislature, not the courts. See, e.g., Socorro Indep. Sch. Dist. v. State Bd. of Educ., 968 S.W.2d 547, 553 (Tex.App.-Austin 1998, pet. denied); Mutchier v. Texas Dep’t of Public Safety, 681 S.W.2d 282, 285 (Tex.App.-Austin 1984, no writ).


text:
    Chris M. SCHADE, M.D., Ph.D., Appellant, v. TEXAS WORKERS’ COMPENSATION COMMISSION; and Richard F. Reynolds, Executive Director, Appellees.
    No. 03-03-00379-CV.
    Court of Appeals of Texas, Austin.
    April 8, 2004.

      Jennifer S. Riggs, Bill Aleshire, Riggs & Aleshire, PC, Austin, for appellant.
    Don Walker, Asst. Atty. Gen. Chief, Admin. Law Division, Austin, for appellees.
    Before Chief Justice W. Kenneth LAW, Justices B.A. SMITH and PATTERSON.

      . The notice of appeal in this case named Leonard Riley, the previous executive director of the worker's compensation commission, as an appellee. We have substituted the name of the current executive director, Richard F. Reynolds. See Tex.R.App. P. 7.2(a).

   OPINION

W. KENNETH LAW, Chief Justice.

In this case, we consider the statutory authority of the Texas Workers’ Compensation Commission to conduct a “desk” review of selected case files and certain billing and business practices of physicians who treat patients in the workers’ compensation system. We also review the nature of “administrative subpoenas” and the proper standard of review of those subpoenas under article I, section 9 of the Texas Constitution. For the reasons stated below, we affirm the judgment of the district court.

BACKGROUND

Chris Schade is a licensed medical doctor who treats patients who have long-term pain. Among his patients, some have filed claims with the Texas Workers’ Compensation Commission (the Commission).

On December 8, 2000, the Commission notified Schade by letter that the medical audit team of its compliance and practices division was conducting a “desk review of his services to workers’ compensation claimants.” Beginning with a focus on five of Schade’s patients, the medical audit team requested: (i) verification that those five patients were workers’ compensation patients treated by Schade’s practice; (ii) copies of Schade’s initial evaluation, diagnoses, and treatment plans for those patients; (iii) their complete clinical files; (iv) a contact person with his office who will be available during normal business hours and able to answer questions about workers’ compensation treatment and billing procedures; and (v) completion of an “audit questionnaire.” The Commission further stated that the review “may include, but [will] not be limited to, a review of medical treatment, billing and payment records, and questions concerning [Schade’s] regular business activities between August 1, 1999 and July 31, 2000.” According to the letter, the Commission considers failure or refusal to comply with a desk review to be an administrative violation.

The “audit questionnaire” is a questionnaire used by the Commission in all reviews of health-care providers concerning their business practices. The questionnaire inquires into general business practices, such as days and hours of operation, the staff organizational chart, the relationship between the physician and other physicians, the services provided by the practice, the physician’s financial interest in other service providers, record-keeping procedures concerning workers’ compensation claims, and the use in the medical practice of Commission publications and other medical references. It seeks information about the billing procedures of the practice but does not require production of actual billing documents.

Schade did not respond to the desk-review notification. Instead, he filed suit in district court, seeking declaratory and injunctive relief “to prevent an unconstitutional search” in violation of the Texas Constitution. See Tex. Const, art. I, § 9. He also sought a declaration that the Commission lacks authority to conduct these desk reviews. See Tex. Lab.Code Ann. §§ 413.002, 414.002, 415.003 (West 1996). The court held a bench trial and in a final order denied Schade’s claims for relief. In its findings of fact and conclusions of law, the court found that the Commission, through its compliance and practices division, has authority to conduct the desk reviews in question, that a desk review is not a warrantless search, and that the review does not violate article I, section 9 of the Texas Constitution. This appeal followed.

DISCUSSION

In three issues, Schade argues that the Commission lacks statutory authority to conduct a desk review, that the desk review in question is a warrantless search that violates his right to be free from unreasonable search and seizure, and that the desk review constitutes an impermissible regulation of the practice of medicine. We will address each issue in turn.

Statutory Construction

In his first issue, Schade challenges the district court’s determination that the medical audit team has authority to conduct desk reviews on two grounds: lack of statutory authority on the part of the Commission to conduct a desk review and improper delegation of the authority from one division within the Commission to another.

Statutory construction is a matter of law, which we review de novo. Johnson v. City of Fort Worth, 774 S.W.2d 653, 656 (Tex.1989). The primary rule of statutory interpretation is to find the intent of the legislature and construe the statute to give effect to that intent. Fleming Foods of Tex. v. Rylander, 6 S.W.3d 278, 284 (Tex.1999); Union Bankers Ins. Co. v. Shelton, 889 S.W.2d 278, 280 (Tex.1994); Sharp v. Clearview Cable TV, Inc., 960 S.W.2d 424, 426 (Tex.App.-Austin 1998, pet. denied). Disputed provisions are to be considered in context, not in isolation. Texas Workers’ Comp. Comm’n v. Continental Cas. Co., 83 S.W.3d 901, 905 (Tex.App.-Austin 2002, no pet.); see also Fitzgerald v. Advanced Spine Fixation Sys., 996 S.W.2d 864, 866 (Tex.1999). Texas courts are to consider, among other factors, the language of the statute, legislative history, the nature and object to be obtained, and the consequences that would follow from alternative constructions, even when a statute is not ambiguous on its face. Helena Chem. Co. v. Wilkins, 47 S.W.3d 486, 493 (Tex.2001); Union Bankers Ins. Co., 889 S.W.2d at 280.

In his attack on the statutory authority of the Commission, Schade first argues that the legislature, in granting authority to the Commission to “monitor” doctors, did not give authority to conduct a desk review. He reasons that the legislature expressly granted the Commission the authority to audit insurance companies and to monitor health care providers, but the Commission’s desk review is an “audit” that exceeds the scope of its authority. Compare Tex. Lab.Code Ann. § 413.013(2) (West 1996), and id. § .013(4), with id. § .015(b) (West 1996). We disagree.

The powers of a commission include the powers delegated by the legislature in clear and express statutory language, together with any implied powers that may be necessary to perform a function or duty delegated by the legislature. Texas Building Owners & Managers Ass’n v. Public Util. Comm’n, 110 S.W.3d 524, 531 (Tex.App.-Austin 2003, pet. denied). We may imply that the legislature intended that a commission have whatever power is reasonably necessary to fulfill a function or perform a duty that the legislature has expressly placed in the agency. Id.; see also Kawasaki Motors Corp. U.S.A. v. Texas Motor Vehicle Comm’n, 855 S.W.2d 792, 797 (Tex.App.-Austin 1993, no writ); Texas Dep’t of Human Servs. v. Christian Care Ctrs., Inc., 826 S.W.2d 715, 719 (Tex.App.-Austin 1992, writ denied).

The legislature directed the Commission to “monitor health care providers ... to ensure the compliance of those persons with rules adopted by the commission relating to health care, including medical policies and fee guidelines.” Tex. Lab. Code Ann. § 413.002(b). To carry out this duty, the Commission shall establish “a program for the systematic monitoring of the necessity of treatments administered and fees charged and paid for medical treatments or services, including the authorization of prospective, concurrent, or retrospective review under the medical policies of the commission to ensure that medical policies or guidelines are not exceeded.” Id. § 413.013(2). “In monitoring health care providers who serve as designated doctors under [the Workers’ Compensation Act], the [medical review] division [of the Commission] shall evaluate the compliance of those providers with this subtitle and with rules adopted by the commission relating to medical policies, fee guidelines, and impairment ratings.” Id. § 413.002(c).

When we consider the desk-review letter and the questionnaire, we discern that the Commission is seeking information concerning: (i) the treatment of five specific workers’ compensation patients; (ii) general medical practice operations and business interests; and (iii) billing and record-keeping practices concerning workers’ compensation claims. These questions focus on the treatments administered and fees charged and paid for medical treatments or services. They also seek to review general practice operations in the context of the provision of workers’ compensation services. In light of the language used by the legislature in the statutes, we can only conclude that these categories are reasonably related to ensuring compliance with the medical policies and fee guidelines of the Commission. See id. §§ 413.002(b)-(c), .013(2).

Next, Schade argues that the legislature granted the power to monitor health-care providers only to the medical review division of the Commission. See id. § 413.002. Because the medical audit team of the compliance and practices division is attempting to conduct the desk review at issue in this case, he contends that the medical audit team’s actions result from an impermissible “sub-delegation” of statutory power within the Commission. See Lipsey v. Texas Dep’t of Health, 727 S.W.2d 61, 64-65 (Tex.App.-Austin 1987, writ ref'd n.r.e.) (considering whether express and implied subdelegation of duties to agency employees is authorized). We disagree.

A commission is composed solely of the members of the commission to whom the legislature delegates authority. See Canales v. Laughlin, 147 Tex. 169, 214 S.W.2d 451, 453 (1948). A commission may hire employees to carry out its delegated functions, if such power is provided by statute. See id. at 457. Where a statute entrusts specified functions to a commission, the legislature presumably intends that only that commission will exercise the delegated functions. Lipsey, 727 S.W.2d at 64. The commission may not subdelegate assigned functions to its employees. Id. To do so would mean that the Commission acted outside of its statutory authority, and its employees’ actions would be invalid for want of authority. Id.

The Workers’ Compensation Commission “is composed of six members appointed by the governor with the advice and consent of the senate.” Tex. Lab.Code Ann. § 402.001 (West 1996). The Commission itself has the delegated authority to implement and enforce the Workers’ Compensation Act. See id. § 402.061 (West 1996). The executive director of the Commission has all of the powers of the Commission except for rulemaking and policy-setting powers. See id. § 402.041 (West 1996). The Commission must have at least four divisions in order to fulfill its duties. See id. § 402.021(a) (West Supp.2004). Although each of these divisions has different functions from the other, the “executive director may allocate and reallocate functions among the divisions.” Id. § 402.021(b).

The legislature delegated the duty to monitor health care providers to the Commission in creating the duties of the Commission’s division of medical review. See id. § 413.002. However, we find the reallocation of the “medical audit” functions from the medical review division to the compliance and practices division to be authorized by statute. See id. § 402.021(b). There can be no subdelegation issue when the statute itself expressly gives the Commission or its executive director the flexibility to allocate functions among the Commission’s employees. We overrule Schade’s first issue.

Warrantless Search

In his second issue, Schade argues that the desk review and the request of information through the “audit questionnaire” constitute an unreasonable search and seizure in violation of the Texas Constitution. See Tex. Const, art. I, § 9. In response, the Commission argues that, at most, the desk review letter and audit questionnaire are forms of an “administrative subpoena.” See Sinclair v. Savings & Loan Comm’r, 696 S.W.2d 142, 145, 151-52 (Tex.App.-Dallas 1985, writ ref'd n.r.e.).

The district court made a conclusion of law that “the desk review is not a warrant-less search, but is, rather, a legitimate request for information.” We review the district court’s conclusions of law de novo. State v. Heal, 917 S.W.2d 6, 9 (Tex.1996). When conducting a de novo review, we exercise our own judgment and redetermine each issue of fact and law. Quick v. City of Austin, 7 S.W.3d 109, 116 (Tex.999). In such a review, we accord the original court’s decision no deference. Id.

We begin by noting that on some occasions the legislature expressly grants an agency the power to issue an administrative subpoena and specifies the procedure by which a subpoena will issue. See, e.g., Tex. Gov’t Code Ann. § 2001.089 (West 2000) (when agency has contested case pending, allowing that agency to issue subpoena addressed to sheriff or constable); Tex. Fam.Code Ann. § 231.303 (West 2002) (allowing Title TV-D agency to issue administrative subpoenas ordering individuals or entities to furnish information necessary to carry out the purposes of child support enforcement); Tex. Fin.Code Ann. § 59.010 (West Supp.2004) (defining “administrative subpoena” as a valid and enforceable subpoena requesting customer records, issued by government agency exercising investigatory or adjudicative functions with respect to matter within agency’s jurisdiction); Tex. Occ.Code Ann. § 153.007 (West 2004) (allowing board of medical examiners to issue subpoenas to compel attendance of witness and production of books, records, and documents, and allowing subpoena service either personally by board investigators or by certified mail); id. § 556.101 (West 2004) (dispensing with warrant requirement for administrative subpoenas issued by board of pharmacy). In addition, Texas case law does not define the nature of an administrative subpoena outside the context of those subpoenas expressly permitted by statute. See, e.g., Pelt v. State Bd. of Ins., 802 S.W.2d 822, 826 (Tex.App.-Austin 1990, no writ) (discussing subpoenas issued in contested case under administrative procedures act); id. at 831-32 (Powers, J., concurring) (same); Sinclair, 696 S.W.2d at 145-7, 148-49 (considering statute authorizing savings and loan commissioner to require production of records, contracts, or other documents by court order).

Schade originally brought this suit only under the search and seizure provision of the Texas Constitution. See Tex. Const. art. I, § 9. A plain reading and comparison of the language of the Fourth Amendment of the United States Constitution and our constitutional provision reveals no substantive difference between the two. See Hill v. State, 951 S.W.2d 244, 248 (Tex.App.-Houston [14th Dist.] 1997, no pet.). As a result, and because Texas case law does not fully describe the nature of an administrative subpoena, we begin by considering the federal approach to this issue. Id.; see also Sinclair, 696 S.W.2d at 151.

In Oklahoma Press Publishing Co. v. Walling, 327 U.S. 186, 66 S.Ct. 494, 90 L.Ed. 614 (1946), the United States Supreme Court considered a similar request for information from a federal agency. In that case, the parties subject to the request claimed that a federal agency was attempting to conduct “general fishing expeditions” into their books, records, and papers, in order to secure evidence that they had violated the federal Fair Labor Standards Act. Id. at 189, 195, 66 S.Ct. 494. That agency was acting without a prior charge or complaint but simply to secure information upon which to base one, allegedly in violation of the Fourth Amendment’s search and seizure provisions. Id. at 195. The Court found that Congress had authorized the agency administrator to conduct a preliminary investigation of possible violations. Id. at 214. The Court then held that the agency administrator had the authority “to exercise his subpoena power for securing evidence upon that question, by seeking the production of petitioners’ relevant books, records and papers.” Id. In case of refusal to obey the subpoena, he also had a right to the aid of the district court in enforcing it. Id. Finally, it held that no constitutional provision forbids Congress from giving authority to an agency to compel the production of business records and papers in that way. Id.

Thus, we find that the Fourth Amendment and its Texas counterpart at most guard against abuse only by way of too much indefiniteness or breadth in the things required to be “particularly described,” if the agency request for the production of corporate records and papers is one the requesting agency is authorized to make and the materials specified are relevant. See id. at 208, 66 S.Ct. 494. The overriding standard is the disclosure sought shall not be unreasonable. See id. It is not necessary, as in the case of a warrant, that a specific charge or complaint of violation of law be pending or that the order be made pursuant to one. See id. at 209, 66 S.Ct. 494. It is enough that the investigation be for a lawfully authorized purpose, within the power of the legislature to command. See id.

The Workers’ Compensation Act does not direct how the Commission is to perform its monitoring duties, except that the Commission by rule shall establish procedures to enable the Commission “to compel the production of documents.” See Tex. Lab.Code Ann. § 413.052 (West 1996). The Commission’s rule describes the documents the Commission would seek and the procedure of a review. See 28 Tex. Admin. Code § 134.900 (2003). It also provides a graduated level of intensity of review. See id. § 134.900(g).

We agree with the Commission that the request in this case is better characterized as a request for production of documents than as a search and thus is akin to an administrative subpoena. The legislature has expressly authorized the Commission to conduct these investigations without filing charges. In addition, the Commission requested documents and answers to questions. It is not conducting an on-site inspection. See, e.g., Op. Tex. Att’y Gen. No. JC-204 (2000) (advising that polygraph examiners board may not conduct warrantless on-site inspections of an individual polygraph examiner not initiated by consumer-filed, formal complaint); Op. Tex. Att’y Gen. No. JC-274 (2000) (same as to powers of board of podiatric medical examiners). The Dallas court relied on Oklahoma Press Publishing Co. to articulate a detailed test for reviewing administrative subpoenas. We will treat the request in this case in the same way and analyze its constitutionality under the same test. See Sinclair, 696 S.W.2d at 151-52.

The requirements for administrative subpoenas are these: (1) the agency must conduct its investigation pursuant to an authorized purpose, and the subpoena must be relevant to that purpose; (2) the agency must follow the necessary statutory procedures; (3) the subpoena must describe the documents sought with adequate particularity, meaning that the scope of its demand for documents must be adequate, but not excessive, for the purposes of the inquiry; (4) the subpoena must not unnecessarily or excessively seek information that the agency already possesses; and (5) the respondent may show that the subpoena is unnecessarily burdensome. Id. (citations omitted).

We have already considered the statutory requirements for a desk review and found them adequate. This satisfies the first and second steps of the Sinclair test. In relation to the third step, the request and the questionnaire focused on two areas of inquiry: information related to five workers’ compensation patients and information concerning Schade’s medical practice and billing procedures. The inquiry into the treatment of the five patients directly concerns compliance with the Workers’ Compensation Act in relation to those five patients. In addition, whether Schade’s treatment and billing practices relating to those five patients is similar to or different from that of patients not in the workers’ compensation system can only be determined by inquiring into the general business operations of the practice. The request letter and the questionnaire sets out the exact documentation the Commission is seeking with particularity. As well, the scope of the inquiry is reasonably related to evaluating compliance with the Workers’ Compensation Act. Thus, we find that the request and questionnaire meet the requirements of the third prong of the Sinclair test.

As to the fourth step, Schade believes that the Commission already possesses this information. In particular, he argues that health care providers submit similar patient information as part of filing a medical bill with the insurance providers and that the Commission has the power to seek this information from those insurance providers. See Tex. Lab.Code Ann. §§ 413.015, 414.002 (West 1996); 28 Tex. Admin. Code §§ 133.1(a)(3), .100 (2003).

Schade’s argument fails in two ways. First, the Commission may initially identify the need for a review from data it receives from insurance companies regarding individual claims. To then restrict its review to that source data would undermine the purposes of conducting a review, for the Commission would never be able to verify the data it has or to compare its impressions with the source data. Second, even if the Commission “has access to [this information] through a multitude of consulting contracts,” as Schade asserts, because Schade has centralized records on these patients, a comprehensive view of Schade’s practice and his treatment and billing related to five particular patients can best be found through Schade’s own records. To require the Commission to piece together from a variety of sources information that statutes permit it to gather from one central source would put an immense strain on the Commission’s ability to fulfill its duties. Sinclair does not test the validity of administrative subpoenas on whether a commission could have the information sought by other means. Rather, the Commission may not “unnecessarily or excessively seek information” that the Commission already possesses. See Sinclair, 696 S.W.2d at 151.

The information the Commission seeks in this case seems necessary to its review, as we have discussed above. Although the review reaches beyond the records of the five listed patients, it seeks information to put those records in context with the general procedures Schade uses in his practice. We find the request within the scope of that focus and not excessive. Thus, the Commission’s request meets the requirements of the fourth prong.

Finally, we turn to the fifth step of Sinclair—that the respondent may show that the subpoena is unnecessarily burdensome. On this issue, Schade offered two comments to the district court. First, he stated that “when I looked at the questionnaire, it was so broad that it appeared to be a fishing expedition.... In other words, I couldn’t identify an issue I was aware of, what they typically will audit; and I couldn’t tell what they were looking for.” Second, he believed that it would require forty to eighty hours to compile the information requested. When we consider the request and the questionnaire, however, we can determine what documentation the Commission is seeking. The request in this case meets the requirements of the fifth Sinclair prong.

Having found both that the request in this case is best considered an administrative subpoena and that the request satisfies the five prongs of the Sinclair test, we conclude that the request does not violate constitutional protections against unreasonable searches and seizures. We overrule Schade’s second issue.

Regulation of the Practice of Medicine

In his third issue, Schade argues that the request and the audit questionnaire constitute an impermissible regulation of practice of medicine. However, he did not allege this issue in his petition in district court, nor did he argue it to that court. “As a rule, a claim, including a constitutional claim, must have been asserted in the trial court in order to be raised on appeal.” Dreyer v. Greene, 871 S.W.2d 697, 698 (Tex.1993). Because this issue was not presented to the district court, Schade waived his arguments. We overrule his third issue.

CONCLUSION

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

      . Although not stated in the desk-review letter, the purpose of this audit was to determine if Schade was overprescribing narcotics. On appeal, Schade only challenges this justification as part of his claim that the review constitutes an impermissible regulation of the practice of medicine. He does not contend that this justification is outside the statutory authority of the Commission.

      . He also claimed a violation of due process of law. See Tex. Const, art. I, § 3. However, he does not present this claim on appeal.

      . The Commission itself characterizes the questionnaire an "audit questionnaire.”

      . "The commission by rule shall establish a program for the systematic monitoring of the necessity of treatments administered and fees charged and paid for medical treatments or services ... to ensure that medical policies or guidelines are not exceeded.” Tex. Lab.Code Ann. § 413.013 (West 1996).

      . "The commission by rule shall establish a program to increase the intensity of review for compliance with the medical policies or fee guidelines for any health care provider that has established a practice or pattern in charges and treatments inconsistent with the medical policies and fee guidelines.” Id. § 413.013(4) (West 1996).

      ."The commission shall provide by rule for the review and audit of the payment by insurance carriers for charges for medical services provided under this subtitle to ensure compliance of health care providers and insurance carriers with the medical policies and fee guidelines adopted by the commission.” Id. § 413.015(b) (West 1996).

      . Schade focuses on the Commission’s use of the word "audit” in the questionnaire and attempts to distinguish between the power to "audit” and the power to "monitor.” First, we note that the word "audit” appeared only in the title of the questionnaire. The letter sent by the Commission refers only to a "desk review” or a "review.” Second, we find it unnecessary to distinguish between the power to monitor and the power to audit because, regardless of the description, we find that the inquiry the Commission actually attempted to initiate, by whatever words it chose to describe that inquiry, falls within the language of the statute.

      . At the hearing in district court, Schade established that the review was conducted on the suspicion that he was overprescribing narcotics. On appeal, he argues that justification itself constitutes the regulation of the practice of medicine. He never presented this argument to the district court. At oral argument, Schade admitted that he only raised this issue to support his argument that the Commission has no rational basis for conducting the review, an argument that may have been relevant were we to have found that the review was not an "administrative subpoena” but a warrantless search. See, e.g., Donovan v. Dewey, 452 U.S. 594, 599, 101 S.Ct. 2534, 69 L.Ed.2d 262 (1981).