source: Caselaw Access Project

author: ADELE HEDGES, Chief Justice.

license: Public Domain

text:
    The STATE of Texas, Appellant, v. Carolyn Sue KRIZAN-WILSON, Appellee.
    No. 14-09-00475-CR.
    Court of Appeals of Texas, Houston (14th Dist.).
    June 22, 2010.
    Rehearing Overruled Sept. 23, 2010.

      Peyton Peebles III, Houston, for appellant.
    Jessica Akins McDonald, Houston, for appellee.
    Panel consists of Chief Justice HEDGES and Justices ANDERSON and CHRISTOPHER.
   OPINION

ADELE HEDGES, Chief Justice.

Appellee, Carolyn Sue Krizan-Wilson, was indicted on July 14, 2008 for the murder of her husband, Roy McCaleb, who had been killed on September 22, 1985. Appellee filed a motion to dismiss the indictment based on the nearly twenty-three year prosecutorial delay between the alleged offense and the filing of charges. The trial court granted the motion and dismissed the case. The State of Texas now appeals the order of dismissal. We reverse the trial court’s order and remand for further proceedings in accordance with this opinion.

I. Background

In her motion to dismiss the indictment and in a subsequent hearing on the motion, appellee asserted that the State’s delay in bringing charges violated her right to due process as guaranteed under the Fifth Amendment to the United States Constitution. Appellee additionally argued that the pre-indictment delay violated her rights to (1) a speedy trial as guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution, article I, section 10 of the Texas Constitution, and article 1.05 of the Texas Code of Criminal Procedure; (2) due course of law under article I, section 19 of the Texas Constitution; (3) a fair trial pursuant to the Sixth Amendment; and (4) testify and present a defense, as guaranteed by the Fifth and Sixth Amendments, article 1, sections 10 and 19 of the Texas Constitution, and the Texas Code of Criminal Procedure. Ap-pellee finally asserted that the indictment was barred by the doctrine of laches. The trial court suggested sua sponte that the delay may have violated her right to effective representation under the Sixth Amendment and article I, section 10 of the Texas Constitution. Except for the speedy trial ground, the trial court entered findings of fact and conclusions of law in support of each of these grounds for dismissal.

Numerous witnesses were called by each side during the hearing on the motion to dismiss. Waymon Allen, a private investigator hired by appellee’s current counsel, testified that in 1985, appellee had hired attorney Clarence Thompson to represent her. Thompson died in 1988, and Allen testified that his attempts to locate Thompson’s files relating to appellee were unsuccessful. Allen additionally stated that Thompson had hired Rafael Gonzalez as an investigator in the case. Gonzalez did not now recall the case, and the evidence Gonzalez turned over to Thompson had been lost. Thompson had also hired a forensic examiner, Floyd McDonald, who is also now deceased. Allen, the current investigator, recounted that around the time of her husband’s murder, appellee made outcry statements that she had been sexually assaulted ten days before the murder. It was a theory of the defense that the rapist later returned and murdered Roy McCaleb. The vehicle in which the sexual assault allegedly occurred apparently had never been processed for evidence by the Houston Police Department (“HPD”) and presumably was no longer available for such processing. Allen reported that records pertaining to appel-lee’s outcry to a fellow employee were unavailable.

Allen testified that medical records were also not available regarding a worker’s compensation claim McCaleb made not long before his death. According to Allen, this evidence would have been relevant to rebut the State’s theory that appellee’s motive for murdering McCaleb was to collect life insurance proceeds because the expected workers’ compensation recovery called into question the alleged motive.

Allen further discussed several other problematic witnesses: Carl Fuller, who was at appellee’s house on the day of the murder, had a “bad” memory; Gary Bunker, who “heard gunshots and some voices” on the night of the shooting, was now deceased; Harry Krater, a former next door neighbor whom appellee reportedly “told ... everything,” could not be located. Allen concluded by stating that he had not seen any “newly discovered facts, witnesses, [or] physical evidence” in the case since 1985.

Jon DeFrance, a neuropsychologist and neuroscientist, testified regarding appel-lee’s mental faculties, her ability to testify, and her ability to aid counsel in her defense. Specifically, he stated that compared to her abilities in 1986, she would now be at a “tremendous disadvantage” in terms of assisting her counsel at trial. DeFrance performed an in-depth evaluation of appellee and concluded that she had “deficits” compared to age norms in four areas: processing speed, memory, attention, and “executive functioning”; the latter facility DeFrance described as a “general control over the person’s behavior.” He said that appellee reported suffering a “very significant head trauma” when she was in high school and that this event might explain her comparatively decreased functioning. DeFrance additionally suggested that appellee should not testify due to the inherent stress involved, coupled with her propensity to become confused and her lack of memory precision. He acknowledged, however, that she was competent to stand trial.

Appellee’s son, Lloyd Gregory Krizan, testified that before retirement he was an HPD lieutenant. He explained that appel-lee’s mental abilities, including her memory, have progressively deteriorated since 1985. He said, for example, that she regularly repeats herself and cannot “tell a story and keep her facts straight.”

Robert Parrish, one of the homicide investigators who worked on the murder investigation in 1985, testified that appel-lee was not arrested for or charged with McCaleb’s murder at that time because the police investigators and the assistant district attorney (“A.D.A.”) assigned to the case “were all in agreement [that] they just didn’t have enough to go forward with a winnable case.” He did not believe that any additional evidence regarding the case had been developed in the intervening years despite additional forensic testing. He denied that the delay in prosecution was for the purpose of gaming a tactical advantage or to be unfair to appellee. Lastly, he stated that his opinion with regard to whether murder charges should be brought against appellee had not changed.

D.S. Wilker testified that she is a retired police officer who had been “brought back” to work on the HPD Cold Case Squad. In 2007, Wilker reexamined the McCaleb murder case. She requested that DNA testing be performed on certain evidence, but no new evidence was developed. She did not bring the case to the attention of the district attorney’s office or otherwise seek to have charges filed.

Victor Wisner testified that he formerly worked at the Harris County District Attorney’s Office. He stated that while he was there, Wilker regularly contacted him regarding cold case files. When she called him regarding the McCaleb murder investigation, they arranged a meeting with the two of them, a D.A.’s office investigator, a police captain, and a police lieutenant. After that meeting, Wisner decided to file murder charges against appellee. He understood that the original A.D.A. on the case in 1985 did not think the case was worth pursuing but that he [Wisner] and two other current A.D.A.S believed otherwise. According to Wisner, the police captain who attended the meeting explained that charges were not filed in 1985 because of a perceived inability to disprove appel-lee’s version of events (ie., that the rapist who had previously attacked her returned and murdered her husband). Wisner felt this concern to be unimportant; he thought that the case against appellee was “a lot better than a lot of cases that are tried here every day.” He stated that in 1985 prosecutors filed a “ludicrous bigamy case” against appellee, which was subsequently dismissed. He opined that embarrassed prosecutors did not wish to further pursue any case against appellee. In his opinion, no one in the D.A.’s office or HPD delayed the case in order to gain a tactical advantage.

At the conclusion of the hearing, the trial court granted appellee’s motion to dismiss. In comments accompanying the ruling, the trial judge concentrated on the Fifth Amendment due process issue. The court further suggested that if the charges proceeded to trial, appellee would be denied effective assistance of counsel due to the loss of evidence and the loss of appel-lee’s ability to effectively communicate with counsel.

After the hearing, the trial court entered findings of fact as follows: DeFrance was an expert, and based on his testimony, appellee’s mental state had deteriorated more rapidly than average, rendering her “effectively unable to testify,” and “severely disadvantaged in assisting her counsel.” Greg Krizan’s testimony was credible concerning appellee’s mental deterioration and lessened ability to recall details. Based on Allen’s testimony, Thompson (ap-pellee’s former counsel) and McDonald (the forensic examiner hired by Thompson) were deceased, and Gonzalez (appellee’s former investigator) did not recall the work he performed on the case. Various items relating to Thompson’s representation and Gonzalez’s investigation had been lost, as had medical records relating to appellee and McCaleb. Other potential witnesses, including Fuller, Bunker, and Krater, were either deceased, unable to be found, or suffering from poor memory. Based on Wilker and Wisner’s testimony, HPD had conducted no additional investigation and had discovered no new evidence since “1985 or 1986.” The State was prosecuting appellee despite prosecutors’ knowledge that evidence favorable to the defense had been lost or destroyed and that “the original lead investigator [apparently meaning Parrish] still feels the charges should not have been filed due to lack of evidence.”

The court also entered conclusions of law: Appellee had “suffered both presumptive and actual substantial prejudice due to the delay in filing this charge,” and such delay was “for the purpose of gaining a tactical advantage ... at trial.” The delay violated appellee’s rights to (1) due process under the Fifth and Sixth Amendments; (2) a fair trial and effective assistance of counsel under the Sixth Amendment; (3) due course of law under article I, section 19 of the Texas Constitution and the Code of Criminal Procedure; (4) testify pursuant to the Fifth Amendment; and (5) call witnesses under the Sixth Amendment. The court further determined that the legal doctrine of laches barred the charges because of the State’s delay in seeking an indictment.

II. Standards of Review

In its sole issue on appeal, the State contends that the trial court erred in dismissing the indictment. We review a trial court’s dismissal of an indictment under a bifurcated standard. See State v. Moff, 154 S.W.3d 599, 601 (Tex.Crim.App.2004); Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App.1997). We afford almost total deference to a trial court’s determination of historical facts that are supported by the record, particularly when such findings of fact are based on an evaluation of witnesses’ credibility and demeanor. Guzman, 955 S.W.2d at 89. We afford the same amount of deference to a trial court’s “application of law to fact” rulings, when those rulings turned on an evaluation of credibility and demeanor. Id. However, when resolution of a question of law does not turn on an evaluation of credibility and demeanor, we review the issue under a de novo standard. Moff, 154 S.W.3d at 601.

III. Due Process

The state has challenged all of the grounds for dismissal mentioned by the trial court in its findings of fact and conclusions of law. Allegations of constitutional violations based on a time gap between offense and indictment are typically analyzed as Fifth Amendment due process issues. See, e.g., United States v. Lovasco, 431 U.S. 783, 789, 97 S.Ct. 2044, 52 L.Ed.2d 752 (1977); United States v. Marion, 404 U.S. 307, 322, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971); Ibarra v. State, 11 S.W.3d 189, 193-94 (Tex.Crim.App.1999). We will therefore begin our analysis with the State’s challenge to the due process ground for dismissal.

Statutes of limitations are the primary assurance against the bringing of unduly stale criminal charges. Marion, 404 U.S. at 322, 92 S.Ct. 455; Ibarra, 11 S.W.3d at 193. However, the Texas legislature has not enacted a statute of limitations for the offense of murder. Ibarra, 11 S.W.3d at 193. The Due Process Clause also provides some measure of protection against excessive pre-indictment delay. Lovasco, 431 U.S. at 789, 97 S.Ct. 2044; Marion, 404 U.S. at 324-25, 92 S.Ct. 455; Ibarra, 11 S.W.3d at 193. In Marion, the United States Supreme Court acknowledged the existence of such protection but resisted the call to set specific guidelines, stating that:

[T]he Government concedes that the Due Process Clause of the Fifth Amendment would require dismissal of the indictment if it were shown at trial that the pre-indictment delay in this case caused substantial prejudice to appel-lees’ rights to a fair trial and that the delay was an intentional device to gain tactical advantage over the accused. However, we need not, and could not now, determine when and in what circumstances actual prejudice resulting from pre-accusation delays requires the dismissal of the prosecution. Actual prejudice to the defense of a criminal case may result from the shortest and most necessary delay; and no one suggests that every delay-caused detriment to a defendant’s case should abort a criminal prosecution. To accommodate the sound administration of justice to the rights of the defendant to a fair trial will necessarily involve a delicate judgment based on the circumstances of each case. It would be unwise at this juncture to attempt to forecast our decision in such cases.

404 U.S. at 324-25, 92 S.Ct. 455.

In Lovasco, the Court explained that “Marion makes clear that proof of prejudice is generally a necessary but not sufficient element of a due process claim, and that the due process inquiry must consider the reasons for the delay as well as the prejudice to the accused.” 431 U.S. at 790, 97 S.Ct. 2044. The court then went on to criticize the court of appeals in that case for holding that the State’s reasoning did not justify the delay, stating:

Judges are not free, in defining “due process,” to impose on law enforcement officials our “personal and private notions” of fairness and to “disregard the limits that bind judges in their judicial function.” Our task is more circumscribed. We are to determine only whether the action complained of here, compelling respondent to stand trial after the Government delayed indictment to investigate further violates those “fundamental conceptions of justice which lie at the base of our civil and political institutions,” ... and which define “the community’s sense of fair play and decency”....

Id. (quoting Rochin v. California, 342 U.S. 165, 170, 72 S.Ct. 205, 96 L.Ed. 183 (1952), and Mooney v. Holohan, 294 U.S. 103, 112, 55 S.Ct. 340, 79 L.Ed. 791 (1935)). The Lovasco court additionally wrote at length regarding the possible merits of leniency toward prosecutorial delay, including that requiring prosecutors to bring charges quickly could (1) limit the State’s ability to further investigate the suspect’s culpability, (2) impair investigation of other possible suspects, and (3) pressure prosecutors into filing charges that they might not otherwise file. Id. at 790, 97 S.Ct. 2044. The court further explained that:

In our view, investigative delay is fundamentally unlike delay undertaken by the Government solely “to gain tactical advantage over the accused,” precisely because investigative delay is not so one-sided. Rather than deviating from elementary standards of “fair play and decency,” a prosecutor abides by them if he refuses to seek indictments until he is completely satisfied that he should prosecute and will be able promptly to establish guilt beyond a reasonable doubt. Penalizing prosecutors who defer action for these reasons would subordinate the goal of “orderly expedition” to that of “mere speed.” This the Due Process Clause does not require. We therefore hold that to prosecute a defendant following investigative delay does not deprive him of due process, even if his defense might have been somewhat prejudiced by the lapse of time.

Lovasco, 431 U.S. at 795-96, 97 S.Ct. 2044.

Neither the Marion nor the Lovasco opinions defined a specific methodology for considering allegations of due process violations based on pre-indictment delay. Instead, such development appears to have been intentionally left for the lower courts. The federal circuits are, in fact, split regarding the proper methodology. The Ninth Circuit, among others, holds that a defendant in such cases has the initial burden to demonstrate that the delay has caused him “actual and substantial prejudice”; the State must then proffer a reason for the prosecutorial delay, and the court balances the given reason against the severity of the prejudice. See, e.g., U.S. v. Moran, 759 F.2d 777, 782-83 (9th Cir.1985). In contrast, the Fifth Circuit, and others, currently hold that in order to be entitled to relief under the Due Process Clause for pre-indictment delay, a defendant must demonstrate that such delay: (1) caused substantial prejudice to his or her right to a fair trial, and (2) was an intentional device used to gain a tactical advantage over the accused “or for some other impermissible, bad faith purpose.” See, e.g., U.S. v. Crouch, 84 F.3d 1497, 1514 (5th Cir.1996).

The Texas Court of Criminal Appeals has largely adopted the Fifth Circuit methodology, holding that to be entitled to relief, a defendant must demonstrate that pre-indictment delay: “(1) caused substantial prejudice to his right to a fair trial, and (2) was an intentional device used to gain a tactical advantage over the accused.” Ibarra, 11 S.W.3d at 193 (citing Marion and Spence v. State, 795 S.W.2d 743, 749 (Tex.Crim.App.1990)). Although the court in Ibarra did not expressly state that it was adopting the additional “other impermissible, bad-faith purposes” language from Crouch, it stated in an operative sentence that: “nothing in the record suggests the State intentionally delayed the case to gain a tactieal advantage over appellant or otherwise acted in bad faith.” Id. (emphasis added). Thus far, neither the Court of Criminal Appeals nor the Fifth Circuit has defined what other reasons for delay might be considered “in bad faith.” See Crouch, 84 F.3d at 1514 (“We need not now attempt to catalogue all possible ‘other’ impermissible, bad faith purposes of intentional delay, although Marion indicates that a purpose ‘to harass’ the defendant would be included. As suggested by Marion and Lovasco, we leave that to further case-by-case development.”).

The case currently before us presents interesting circumstances for application of the Fifth Circuit and Texas two-prong test. After twenty-three years of delay, no new evidence was uncovered. Appellee was indicted after a different prosecutor simply looked at the case and disagreed with the earlier decision not to prosecute. Meanwhile, the only developments in the case have been the death of witnesses and defense counsel, the loss of evidence, and the mental deterioration of the defendant.

The State has conceded that ap-pellee met the first prong of the test by demonstrating that the twenty-three year delay between the offense and the filing of charges has caused substantial prejudice to her defense efforts. However, we agree with the State that there is no evidence in this case that the delay was intended to gain a tactical advantage over appellee or for another improper purpose. Instead, the only evidence regarding the prosecutorial gap indicated that the original prosecutor and police investigators did not believe the case to be winnable. A later prosecutor, Wisner, believed that the case was worth pursuing based on the 1985 evidence. Even though the delay was apparently not for investigative purposes, appellee failed to meet her burden of showing an intentional delay for tactical advantage or other bad faith purpose.

There is no requirement in Texas that a continuous investigation take place. See Ibarra, 11 S.W.3d at 193 (“We are unaware of any requirement that the police conduct continuous investigation.”). Many courts have held that the defendant must produce solid evidence of intentional delay for an improper purpose, not just conjecture. In Crouch, the court held that a delay occasioned by a lack of funding for investigators was not intentional delay for an improper purpose. 84 F.3d at 1514. In Ibarra, the court held that no due process violation occurred when a procedural legal rule (concerning search warrants) changed, making certain evidence available that was not available under the prior rule. 11 S.W.3d at 191-93. The court likened the situation to one wherein advances in DNA testing made previously unavailable information accessible. Id. at 193-94. In Stoner v. Graddick, the Eleventh Circuit affirmed a lower court’s denial of habeas corpus because the defendant failed to show that the State delayed prosecution for nineteen years in order to gain a tactical advantage. 751 F.2d 1535, 1543 (11th Cir.1985). The only evidence regarding the reason for the delay was inconclusive: a retired police officer testified that he did not know why the case had not been prosecuted earlier. Id. The trial court concluded, and the appellate court apparently concurred, that the original prosecutors simply must have doubted the sufficiency of the evidence to prosecute. Id. In United States v. Proctor, the Fifth Circuit rejected an assertion that bad faith was manifest from the fact that prosecutors “had all the evidence to prosecute” almost five years before filing charges. 505 F.3d 366, 370 (5th Cir.2007). The court stated that bad faith cannot be implied “simply from the fact of the delay.” Id. In Grimaldo v. State, the court held that the defendant failed to meet his burden because “although no good reason [was] apparent from the record for the delay, likewise the record [did] not show any bad faith reason for the delay.” No. 07-99-0006-CR, 2000 WL 798800, at *3 (Tex. App.-Amarillo June 21, 2000, no pet.) (not designated for publication). Lastly, in Pelkey v. State, this court held that the defendant failed to meet his burden where a set of prosecutors examining “cold cases” decided to prosecute where police had originally believed that prosecutors would not accept the case. No. 14-00-00904-CR, 2002 WL 192846, at *2 (Tex.App.-Houston [14th Dist.] Feb. 7, 2002, pet. ref d) (not designated for publication).

Based on these cases, we hold that as a matter of law the evidence in the present case does not establish that the prosecuto-rial delay was an intentional device used to gain a tactical advantage over the accused or for other bad faith purposes. See Ibar-ra, 11 S.W.3d at 193. Whether Wisner’s testimony is believed or disbelieved, there is still no evidence of intentional delay to gain an advantage. Accordingly, the trial court erred in dismissing the indictment on the ground that appellee’s due process rights were violated by the pre-indictment delay.

IV. Other Bases for Relief

The following additional rights were referenced by the trial court as bases for dismissing the indictment: (1) to enjoy due course of law under article I, section 19 of the Texas Constitution; (2) to receive effective representation under the Sixth Amendment and article I, section 10 of the Texas Constitution; (3) to testify and present a defense, as guaranteed by the Fifth and Sixth Amendments, article 1, sections 10 and 19 of the Texas Constitution, and the Texas Code of Criminal Procedure; and (4) to receive a fair trial pursuant to the Sixth Amendment. Additionally, the court determined that the indictment was barred by the doctrine of laches.

A. Due Course of Law

The State contends that the trial court erred in finding a violation of appellee’s right to due course of law under article I, section 19 of the Texas Constitution. We have previously held that in cases of pre-indictment delay, the appropriate due course of law analysis is the same as that for due process. State v. Kuri, 846 S.W.2d 459, 471 (Tex.App.-Houston [14th Dist.] 1993, pet. ref'd). Accordingly, based on our due process analysis above, we hold that appellee’s right to due course of law was not violated by the delay in this case. The trial court erred in holding otherwise.

B. Effective Representation

Next, the State argues that the trial court erred in finding a violation of appellee’s right to effective representation of counsel. A criminal defendant is entitled to “the effective assistance of counsel.” Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) (quoting McMann v. Richardson, 397 U.S. 759, 771, n. 14, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970)). The trial court found that the State’s pre-indictment delay violated ap-pellee’s right to counsel due to the loss of evidence and her inability to effectively communicate. But the right to counsel as defined by the Supreme Court focuses on the provision and performance of counsel and not on assurances regarding the state of the evidentiary case with which a defendant’s attorney has to work. See generally id. at 685-86, 104 S.Ct. 2052 (explaining that the right to counsel guaranties representation by counsel, that defense counsel will provide “adequate legal assistance,” and that the government may not interfere with counsel’s decision-making).

Prejudice resulting from pre-indictment prosecutorial delay may implicate due process concerns. See Crouch, 84 F.3d at 1514; Ibarra, 11 S.W.3d at 193-94. Yet we discern no basis for the dismissal of an indictment on the ground that prejudice flowing from a pre-indictment delay unconstitutionally affected a defendant’s right to counsel. Consequently, the trial court erred in dismissing the indictment on the ground that appellee’s right to counsel was violated.

C. Testify and Present a Defense

The State additionally challenges the trial court’s holding that the delay in prosecuting this case violated appellee’s rights to testify and to present a defense. To support her claim of violation of these particular rights, appellee introduced evidence of her inability to testify, the death or disappearance of witnesses, and the loss or destruction of certain physical evidence. Appellee has cited a number of sources— the Fifth and Sixth Amendments to the United States Constitution; article 1, sections 10 and 19 of the Texas Constitution; and the Texas Code of Criminal Procedure — to establish her unassailable right to testify and to present a defense. See generally Rock v. Arkansas, 483 U.S. 44, 49-53, 107 S.Ct. 2704, 97 L.Ed.2d 37 (1987) (right to testify); Crane v. Kentucky, 476 U.S. 683, 690-91, 106 S.Ct. 2142, 90 L.Ed.2d 636 (1986) (right to present a defense). She has not, however, cited any authority, and we have discovered none, suggesting that such rights are implicated by pre-indictment delay.

The rights to testify and to present a defense typically apply in specific and well-developed contexts, often involving prohibitions against direct government action which prevent exercise of the given rights. For example, in Crane the Supreme Court cited the right to present a defense in holding that in the absence of “valid state justification,” a State’s evidentiary rules could not “exclude competent, reliable evidence bearing on the credibility of a confession when such evidence is central to the defendant’s claim of innocence.” 476 U.S. at 690-91, 106 S.Ct. 2142. Similarly, in Rock, the Court cited the right to testify in holding that a state could not by per se rule prevent a defendant from testifying on his own behalf after he had undergone hypnosis to refresh his memory. 483 U.S. at 56-62,107 S.Ct. 2704.

Here, appellee is not complaining that the State or the trial court would directly prevent her from testifying or from presenting certain evidence or questioning certain witnesses. Rather, her arguments are premised on the notion that the very lapse of time between offense and indictment (occasioned by the State’s inaction) will prevent her from testifying and presenting a defense. Although pre-in-dictment delay may implicate due process concerns, see Crouch, 84 F.3d at 1514; Ibarra, 11 S.W.3d at 198-94, we do not believe that the rights to testify and present a defense require dismissal of an indictment based solely on delay in bringing an indictment. Accordingly, the trial court erred in dismissing the indictment based on alleged violations of appellee’s rights to testify and present a defense.

D. Fair Trial

The State also challenges the trial court’s holding that the delay violated ap-pellee’s Sixth Amendment right to a fair trial. It is uncertain on this record whether appellee or the court considered the Sixth Amendment as providing a basis for the dismissal not covered by other grounds more specifically mentioned, i.e., the Fifth Amendment due process argument and the rights to testify, to present a defense, and' to effective representation all discussed above. In her appellate briefing, the only arguments appellee has made regarding violation of her Sixth Amendment right to a fair trial are that (1) she was prejudiced by the delay and (2) “the charges are overly stale.” These arguments are more appropriately analyzed in the context of Fifth Amendment due process rights.

Furthermore, the only case appel-lee cites in support of her fair trial appellate arguments is the Supreme Court’s opinion in United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971). In Marion, the Court declined to extend Sixth Amendment protections to the period prior to arrest. Id. at 321, 92 5.Ct. 455. Instead, the Court indicated that pre-indictment delay should be analyzed under the Fifth Amendment right to due process. Id. at 324, 92 S.Ct. 455. The trial court erred in dismissing the indictment on the basis of the Sixth Amendment right to a fair trial.

E. Laches

Lastly, the State challenges the trial court’s holding that the indictment of ap-pellee was barred by application of the doctrine of laches. In Ex Parte Carrio, the only case appellee cites, the Texas Court of Criminal Appeals held that the doctrine of laches should be utilized in determining whether to consider a post-conviction application for writ of habeas corpus where the applicant’s delay in filing the application prompted the State to claim prejudice to its ability to respond. 992 S.W.2d 486, 487-88 (Tex.Crim.App.1999).

Carrio is not a pre-indictment delay case. In it, the court followed the federal practice of using laches to assess the consequences of delay in applications for writ of habeas corpus. Id. at 487. This is a very narrow use of this equitable doctrine. There is no suggestion in the opinion that the doctrine should apply in any other criminal context. We see no reason to extend use of the doctrine into the realm of pre-indictment delay, where the Court of Criminal Appeals has already set forth a test governing our analysis. See Ibarra, 11 S.W.3d at 193-94. For this reason, we find that the trial court erred in dismissing the indictment pursuant to the doctrine of laches.

V. Conclusion

For the reasons stated above, we hold that each of the grounds cited by the trial court in dismissing the indictment is without merit. Consequently, the trial court erred in dismissing the indictment. We sustain the State’s sole issue on appeal.

We reverse the trial court’s order of dismissal and remand for further proceedings in accordance with this opinion.

      . In its "Issue Presented,” the State specifically stated: “Did the trial court err in determining the State intentionally delayed this prosecution in bad faith simply because it indicted appellee 22 years after the offense?” But as will be discussed in this opinion, between its initial appellate brief and reply brief, the State has briefed each of the issues listed by the trial court as bases for dismissing the indictment. In her brief, appellee urges that we find that the State waived its arguments on certain grounds for dismissal by not raising them in its original brief. In our discretion, we will treat the State’s reply brief as a supplemental brief, under Texas Rule of Appellate Procedure 38.7, and consider all of the arguments raised. See Boyle v. State, 820 S.W.2d 122, 141 (Tex.Crim.App.1989) ("Whether to discuss new matters raised in a supplemental brief is left to the sound discretion of the court.”); Houston v. State, 286 S.W.3d 604, 612 (Tex.App.-Beaumont 2009, pet. ref'd) (treating reply brief as supplemental brief under Rule 38.7); Skillern v. State, 890 S.W.2d 849, 882 (Tex.App.-Austin 1994, pet. ref'd) (exercising discretion to consider newly raised matter). The State filed the reply brief prior to submission and oral argument, and both sides fully briefed the issues.

      . The Fifth Circuit had previously used the balancing test but in Crouch specifically adopted the two-pronged test, requiring the defendant to prove both prongs. 84 F.3d at 1514; see also Stoner v. Graddick, 751 F.2d 1535, 1542 n. 4 (11th Cir.1985) (discussing the early inconsistency in Fifth Circuit methodology).

      . As unpublished cases, Pelkey and Grimaldo do not compel our resolution in this case; however, they provide additional context in which to view the state of the law in this area of due process analysis.

      . Under the Ninth Circuit's methodology, the result in this case might be different from that which we reach under the two-prong Texas and Fifth Circuit analysis. Under the Ninth Circuit balancing test, appellee has demonstrated actual and substantial prejudice, the State has proffered no reason for the delay other than that the prosecutor and police at one time did not believe that they had enough evidence to prosecute, and the balance could tip toward finding a due process violation. See Moran, 759 F.2d at 782-83.

      .The State asserts that the trial court based the dismissal of the indictment solely on findings that the delay violated appellee’s due process rights and right to effective representation. However, because the trial court entered findings of fact and conclusions of law supporting the dismissal on several additional grounds, the State’s assertion is clearly incorrect. The State briefed the merits of each of the additional grounds, and we will address each on the merits.

        . The Carrio court referenced Black's Law Dictionary in defining the doctrine:
      The doctrine of laches is based upon the maxim that equity aids the vigilant and not those who slumber on their rights. It is defined as neglect to assert right or claim which, taken together with lapse of time and other circumstances causing prejudice
      to an adverse party, operates as a bar in a court of equity. Also, it is the neglect for an unreasonable and unexplained length of time under circumstances permitting diligence, to do what in law, should have been done.
      992 S.W.2d at 487 n. 2 (quoting Black’s Law Dictionary 875 (6th ed. 1990)).


author: TRACY CHRISTOPHER, Justice.

text:
    In re LIBERTY INSURANCE CORPORATION and Michelle Yaklin, Relators.
    No. 14-10-00229-CV.
    Court of Appeals of Texas, Houston (14th Dist.).
    July 16, 2010.
    Rehearing Overruled Sept. 2, 2010.

      David L. Plaut, Austin, for relators.
    Jeffrey L. Raizner, Michael P. Doyle, Houston, for real party in interest.

      Panel consists of Chief Justice HEDGES and Justices ANDERSON and CHRISTOPHER.
   OPINION

TRACY CHRISTOPHER, Justice.

On March 15, 2010, Liberty Insurance Corporation and its adjuster, Michelle Yaklin (collectively, “Liberty”), filed a petition for writ of mandamus in this Court. See Tex. Gov’t Code Ann. § 22.221 (Vernon 2004); see also Tex.R.App. P. 52. In the petition, Liberty asks this Court to compel the Honorable Josefina Rendon, presiding judge of the 165th District Court of Harris County, to set aside her February 10, 2010 order denying its plea to the jurisdiction for failure to exhaust administrative remedies, grant the plea to the jurisdiction, and dismiss the case for lack of jurisdiction. We conditionally grant the petition.

BACKGROUND

On June 18, 2008, Sheila Kennedy suffered injuries when she slipped and fell on vinyl flooring while in the copy room at the Plains Exploration and Production Company where she worked. On July 3, 2008, Liberty accepted as compensable a left shoulder contusion, left arm contusion, neck contusion, lower back contusion, and injuries to the eye socket (bruised), nose (swollen), front teeth, and upper lip. When Liberty accepted those injuries as compensable, Kennedy began receiving chiropractic and other medical treatment.

An MRI was performed on Kennedy’s left knee on August 25, 2008. The MRI showed the knee was normal except for an abnormal signal in the posterior horn of the medial meniscus — possibly due to postoperative changes and/or complex tearing, and chondromalacia.

On September 30, 2008, Liberty denied a request for left knee arthroscopy from Kennedy’s treating physician, Dr. Robert Fain, M.D. The preauthorization request was denied for the following reasons:

The request for left knee arthroscopy was not approved by peer review as medically necessity could not be established per ODG [Official Disability Guidelines].
Please note that the peer review physician stated that there was no documentation as to whether the MRI findings of the left knee involving the abnormal signal of the medial meniscus was due to post op change versus an acute meniscal tear since there was mention that the patient had previous left knee surgery in 2007.
There did not appear to be any significant positive objective findings on physical exam to justify the need for the surgical intervention and does not meet ODG criteria.
Also, there was no indication as to whether the patient had any previous formal PT or instructions in home exercises.

Thus, the preauthorization request was denied based on medical necessity and com-pensability, i.e., whether the condition was due to post-operative changes after surgery in 2007 or the June 18, 2008 incident. Neither Dr. Fain nor Kennedy sought reconsideration of the denial of preauthorization for arthroscopic knee surgery.

The DWC received on October 23, 2008 a request for a designated doctor exam. The request form does not indicate who requested an examination by a designated doctor. The note to the designated doctor directed the doctor to address only maximum medical improvement, impairment rating, and extent of injury, and ability to return to work. With respect to extent of injury, the note specifically stated that the “claimant slipped & fell on floor landing on left knee & face. Carrier has accepted only a sprain/strain. Carrier is disputing aggravation of pre-existing conditions, extent to left knee, right hip, and back.” The DWC sent notice to Kennedy on November 5, 2008 that it had receive a request that a designated doctor be assigned to determine maximum medical improvement, impairment rating, the ability of the employee to return to work, and the extent of the employee’s compensable injury. The notice directed Kennedy to attend the examination with the designated doctor, Dr. Jerry Franz, M.D.

On November 21, 2008, Dr. Jerry Franz, M.D. examined Kennedy and issued his designated doctor report on December 23, 2008. Dr. Franz reported that the extent of compensable injury included:

1. Post-concussion, traumatic brain injury.
2. Cervical strain sprain aggravating underlying degenerative disk space narrowing and causing borderline stenosis at C4-C5 and C5-C6.
3. T11-T12 mm disk protrusion.
4. Lumbar strain/sprain aggravating underlying disk pathology from L2 through L5.
5. There is no Lumbar Radiculopathy
6. There is internal derangement of the Left Knee.
7. She has a severe strain/sprain of the Left Ankle.
8. Unrelated mild bilateral carpel tunnel syndrome per electrodiagnostics.

On January 19, 2009, Kennedy received a second opinion from Dr. Gregory P. Harvey, M.D., who declined to recommend arthroscopic knee surgery. In his report, Dr. Harvey stated:

At this point, I think an initial trial of a cortisone injection should be given to see how much pain relief the patient develops. The patient states that she did very well after her prior arthroscopic surgery and that she did not have recurrence of pain until this injury in June. I am having difficulty determining whether the patient’s pain is coming from an aggravation of her arthritis or whether she is having significant meniscal symptoms.
The patient may ultimately require arthroscopic surgery both as a diagnostic and therapeutic treatment if she continues to have mechanical symptoms. I have counseled her that since her meniscal symptoms are not clearcut [sic] and she also has severe chondromalacia, that she may not have total relief just from an arthroscopic procedure.

The DWC conducted a benefit review conference on January 28, 2009. Although a benefit review conference may be requested by the claimant, the carrier, or the employer, the mandamus record does not contain the request for the benefit review conference or otherwise indicate who requested the conference or identify the disputed issues sought to be resolved by the benefit review conference. The parties were not able to reach an agreement, and the following two issues remained unresolved after the benefit review conference: (1) whether the compensable injury extended to include degenerative disc disease at C4-C5; spondylosis and stenosis at C5-C6 (aggravation); post-concussion, traumatic brain injury; T11-T12 disc protrusion; lumbar disc bulges at L2-L3, L3-L4 and L4-L5(aggravation); Grade I spondylolisthesis at L3-L4 (aggravation); chondromalacia of the left patella; and medial meniscus tear of the left knee; and (2) whether Liberty waived the right to dispute degenerative disc disease at C4-C5; spondylosis and stenosis at C5-C6; traumatic brain injury; disc generation at L3-L4; chondromalacia of the left patella; and medical meniscus tear of the left knee. The DWC scheduled a contested case hearing for April 2, 2009.

On February 4, 2009, Liberty changed its earlier position regarding the compens-ability of Kenned/s knee injury, now accepting the injury as compensable. Liberty limited its dispute as follows:

The injured employee’s compensable injury is limited to cervical sprain/strain, lumbar sprain/strain, chondromalacia or left patella and medial meniscus tear of the left knee. No other condition naturally resulted from or was affected by the original incident. All other injuries, conditions, diagnosis, and/or symptoms related to the injured body part or any other part of the claimant’s body are denied as not resulting from the com-pensable injury or accident. More specifically, the following diagnoses are being disputed: degenerative disc disease at C4/5, spondylosis and stenosis at C5/6, post concussion, traumatic brain injury, Tll/12 disc protrusion, Lumbar disc bulges at L2/3, L3/4 and L4/5, Grade I spondylolisthesis at L3/4.

Dr. Fain submitted a second request for preauthorization of arthroscopic surgery on the left knee. On February 19, 2009, Liberty approved Dr. Fain’s second request for pre-authorization of the left knee arthroscopy “based on a determination that the treatment/service is reasonable and necessary as outlined in the Texas Workers’ Compensation Act, Rules and Fee Guidelines.” More specifically, according to Michelle Yaklin’s affidavit submitted in support of Liberty’s plea to the jurisdiction, the second preauthorization request, unlike the first request, documented compliance with relevant Official Disability Guidelines, including a description of the failure of both physical therapies and medication and the required conservative care. On February 24, 2009, Kennedy underwent arthroscopy, medical meniscectomy, and chondroplasty.

The DWC held a contested case hearing on April 2, 2009 on the issues not resolved at the benefit review conference. The DWC issued a decision on April 6, 2009, finding that Kennedy’s compensable injury of June 18, 2008 included degenerative disc disease at C4-C5, spondylosis and stenosis at C5-C6, post concussion, traumatic brain injury, T11-T12 disc protrusion, lumbar disc bulges at L2-L3, L3-L4, and L4-L5, grade I spondylolisthesis at L3-L4, chon-dromalacia of the left patella, and medical meniscus tear of the left knee. The DWC further concluded that Liberty had waived the right to dispute the diagnosis of degenerative disc disease at C4-C5, spondylosis and stenosis at C5-C6, traumatic brain injury, disc degeneration at L3-L4, chon-dromalacia of the left patella, and medial meniscus tear of the left knee by not contesting timely the diagnoses. The DWC ordered with respect to the payment of benefits:

Carrier is ordered to pay benefits in accordance with this decision, the Texas Workers’ Compensation Act, and the Commissioner’s Rules. Accrued but unpaid income benefits, if any, shall be paid in a lump sum together with interest as provided by law.

On August 14, 2009, Kennedy filed the underlying case against Liberty alleging bad faith. Kennedy bases her bad faith claims on Liberty’s (1) denial and/or delay of payment of benefits after the DWC had ordered Liberty to pay benefits, and (2) September 30, 2008 denial of the preau-thorization request of surgery on Kennedy’s left knee. Kennedy alleges “consequential damages to her economic welfare from the wrongful denial and delay of benefits; the mental anguish and physical suffering resulting from this wrongful denial of benefits, and continued impact on the medical evaluation, treatment, and final prognosis; ...” Liberty filed its plea to the jurisdiction on September 29, 2009, contending that Kennedy had not exhausted her administrative remedies with the DWC. The trial court held a hearing on Liberty’s plea to the jurisdiction on February 8, 2010, and signed the order denying it on February 10, 2010. In this original proceeding, Liberty contends that the trial court abused its discretion by denying its plea to the jurisdiction.

Standard of Review

To be entitled to the extraordinary relief of a writ of mandamus, the relator must show the trial court abused its discretion and there is no adequate remedy by appeal. In re Laibe Corp., 307 S.W.3d 314, 316 (Tex.2010) (orig. proceeding) (per curiam). A trial court abuses its discretion if it reaches a decision so arbitrary and unreasonable as to constitute a clear and prejudicial error of law, or if it clearly fails to correctly analyze or apply the law. In re Columbia Med. Or. of Las Colmas, 306 S.W.3d 246, 248 (Tex.2010) (orig. proceeding) (per curiam); In re Cerberus Capital Mgmt., LP., 164 S.W.3d 379, 382 (Tex.2005) (orig. proceeding) (per cu-riam). In determining whether appeal is an adequate remedy, we consider whether the benefits outweigh the detriments of mandamus review. In re BP Prods. N. Am., Inc., 244 S.W.3d 840, 845 (Tex.2008) (orig. proceeding). The failure to grant a plea to the jurisdiction for failure to exhaust administrative remedies with the DWC is subject to mandamus review in order to prevent disruption of the orderly processes of government. In re Liberty Mut. Fire Ins. Co., 295 S.W.3d 327, 328 (Tex.2009) (orig. proceeding) (per curiam).

The trial court has jurisdiction to award damages only to the extent that relief is not dependent upon the adjudication, directly or indirectly, of a matter within the DWC’s exclusive jurisdiction. Cunningham Lindsey Claims Mgmt., Inc. v. Snyder, 291 S.W.3d 472, 477 (Tex.App.Houston [14th Dist.] 2009, pet. filed). Determining whether an agency has subject matter jurisdiction is treated as a question of law and reviewed de novo. In re S.W. Bell Tel. Co., LP., 235 S.W.3d 619, 625 (Tex.2007) (orig. proceeding). If an agency has exclusive jurisdiction to resolve a dispute, a party must first exhaust all administrative remedies before a trial court has subject matter jurisdiction. O’Neal v. Ector County Indep. Sch. Dist, 251 S.W.3d 50, 51 (Tex.2008) (per curiam).

A plea to the jurisdiction challenging administrative exhaustion of remedies under the workers’ compensation scheme can rest on the pleadings, or on evidence. Stinson v. Ins. Co. of the State of Pa., 286 S.W.3d 77, 83 (Tex.App.-Houston [14th Dist.] 2009, pet. denied) (op. on reh’g). When a plea to the jurisdiction challenges the pleadings, we determine if the pleader has alleged facts that affirmatively demonstrate the court’s jurisdiction to hear the cause. Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex.2004). We construe the pleadings liberally in favor of the plaintiff and look to the pleader’s intent. Id. If the pleadings do not contain sufficient facts to affirmatively demonstrate the trial court’s jurisdiction but do not affirmatively demonstrate incurable defects in jurisdiction, the issue is one of pleading sufficiency and the plaintiffs should be afforded the opportunity to amend. Westbrook v. Penley, 231 S.W.3d 389, 395 (Tex.2007). If the pleadings affirmatively negate the existence of jurisdiction, then a plea to the jurisdiction may be granted without allowing the plaintiffs an opportunity to amend. Cameron County v. Brown, 80 S.W.3d 549, 555 (Tex.2002).

Analysis

The Workers’ Compensation Act vests the Workers’ Compensation Division with exclusive jurisdiction to determine a claimant’s entitlement to medical benefits. In re Liberty Mut. Fire Ins. Co., 295 S.W.3d at 328. When an agency has exclusive jurisdiction, a party must exhaust all administrative remedies before seeking judicial review of the agency’s action. Subaru of America, Inc. v. David McDavid Nissan, Inc., 84 S.W.3d 212, 221 (Tex.2002). The exhaustion requirement ensures that the administrative agency has the opportunity to resolve disputed fact issues within its exclusive jurisdiction before a court addresses those issues. Stin-son, 286 S.W.3d at 83 (citing Essenburg v. Dallas County, 988 S.W.2d 188, 189 (Tex.1998) (per curiam)). Kennedy’s claims arise from Liberty’s September 30, 2008 denial of her request for preauthorization of arthroscopic knee surgery and its February 4, 2009 denial of compensability.

Exhaustion of Administrative Remedies

Relying on the Texas Supreme Court’s decision in American Motorists Insurance Company v. Fodge, Kennedy generally asserts that because the DWC determined in its April 6, 2009 decision that she is entitled to benefits, she can proceed with bad faith claims arising from denial of benefits or delay in paying those benefits determined to be due without any further exhaustion of remedies. 63 S.W.3d 801 (Tex.2001). While the carrier in Fodge was ordered to pay temporary income benefits after a contested case hearing, the claimant never sought medical benefits or claimed that she was denied medical benefits. Id. at 802. Fodge subsequently sued the carrier for bad faith denial of medical benefits and income benefits. Id. at 803. Holding that Fodge was required to exhaust her administrative remedies regarding the denial of medical benefits, the supreme court explained that the trial court could not award damages for denial of benefits without a determination by the Commission that such benefits were due. Id. at 804. However, Fodge’s claims for income benefits, which were stipulated, were ripe for adjudication and should not have been dismissed. Id. at 805.

Kennedy’s rebanee on Fodge is misplaced. While the DWC determined the extent of Kennedy’s compensable injury, it did not address Kennedy’s entitlement to medical benefits or specific medical treatment. Cf. Pickett v. Tex. Mut. Ins. Co., 239 S.W.3d 826, 831 (Tex.App.-Austin 2007, not pet.) (holding, because benefit dispute agreement determined compensability, but did not address or determine what medical treatments were related to compensable injury, claimant was not relieved of obligation to exhaust administrative remedies regarding disputes over specific medical benefits); Kelly v. Am. Interstate Ins. Co., 14-07-00083-CV, 2008 WL 5085138, at *9 (Tex.App.-Houston [14th Dist.] Nov. 25, 2008, pet. filed) (mem. op.) (holding, because benefit dispute agreement specified nature of injuries and determined they were generally compensable, but did not address medical benefits or specific treatments, claimant did not exhaust administrative remedies when he failed to submit any denied preauthorization requests to agency). The requirement to exhaust administrative remedies applies to disputes as to both compensability or extent of injury and medical necessity or preauthorization. Snyder, 291 S.W.3d at 477. Even when the claimant has exhausted his administrative remedies applicable to com-pensability, dismissal for lack of jurisdiction may be warranted if the claimant failed to exhaust his remedies with regard to medical necessity. Id. at 477-78.

Kennedy has not specified what benefits she was entitled to that were denied; neither has she pled that she claimed those benefits related to her injuries. Only the DWC has jurisdiction to determine Kennedy’s entitlement to benefits. Without a DWC determination that Kennedy was entitled to any benefits, the trial court cannot award damages for the denial of payment of benefits. See Fodge, 63 S.W.3d at 803. Therefore, Kennedy was required to seek a DWC determination that she was entitled to specific benefits. Because Kennedy did not do this, she did not exhaust her administrative remedies regarding the denial of payment of benefits. The result is the same regarding the DWC’s finding that Liberty waived its right to contest compensability. The DWC finding of waiver as to compensability is not a determination relating to Kennedy’s entitlement to medical benefits. Cf. Kelly, 2008 WL 5085138, at *6 (benefit dispute agreement stated that injury was compensable and carrier waived its right to contest com-pensability of claim, but did not address specific medical treatments or procedures).

Kennedy also did not exhaust administrative remedies with respect to Liberty’s September 80, 2008 denial of the preau-thorization request for arthroscopic knee surgery. It is not disputed that neither Kennedy nor Dr. Fain asked Liberty to reconsider its September 30, 2008 denial of the preauthorization request. Liberty argues Kennedy’s failure to exhaust ended the dispute over the first request for. preauthorization because reconsideration is a mandatory prerequisite to continuing the medical dispute resolution process. Instead of seeking reconsideration, Dr. Fain submitted a second preauthorization request for arthroscopic surgery on the left knee. Liberty approved the second preauthorization request, and the arthroscopic knee surgery was performed on February 24, 2009.

Before the trial court can adjudicate a bad faith claim for denial of preauthorization of medical treatment, the DWC must first have determined that the claimant was entitled to the treatment. Schwartz v. Ins. Co. of State of Pa., 274 S.W.3d 270, 275 (Tex.App.-Houston [1st Dist.] 2008, pet. denied). The fact that the carrier approved a subsequent preauthorization request for the same treatment does not relieve the claimant of her obligation to seek a DWC determination of entitlement of treatment in the first denied request. See Snyder, 291 S.W.3d at 479 (holding that carrier’s approval of second preau-thorization request did “not alter the fact that under the governing statutes and administrative rules, resolution of any question regarding need for surgery” as to the first preauthorization request “rested solely with the [agency]”); Schwartz, 274 S.W.3d at 274-75 (holding that unresolved dispute as to medical necessity of requested surgery still existed when claimant filed suit even though carrier ultimately authorized surgery more than nine months after initial request); In re Tex. Mut. Ins. Co., No. 05-05-00944-CV, 2005 WL 1763562, at *2 (Tex.App.-Dallas July 27, 2005, orig. proceeding) (mem. op.) (“The fact that the discogram and fusion surgery were ultimately authorized does not constitute any type of determination by the Commission that the initial denial of the procedures ... [was] improper.”).

However, relying on Section 413.014(f) of the Texas Labor Code, Kennedy contends that she was not required to further exhaust her administrative remedies as to the September 30, 2008 denial of preau-thorization because Liberty’s subsequent authorization of the same surgery precludes any challenge to medical necessity. See Tex. Lab.Code Ann. § 413.014(f) (Vernon 2006) (DWC may not prohibit carrier from voluntarily discussing prospective health care treatment with provider or certifying or agreeing to pay for health care consistent with agreement; carrier is liable for treatment that is voluntarily preau-thorized and may not dispute certified or agreed-on preauthorized health care treatment at later date). Section 413.014(f) is not applicable in this case. Under section 413.014(f), the DWC “cannot prohibit parties from voluntarily agreeing to pay for medical services that would otherwise require preauthorization, and any such agreements create liability for those agreed services on the part of the insurance carrier.” Stinson, 286 S.W.3d at 86. Here, there was no voluntary agreement by Liberty to pay for the arthroscopic knee surgery request of September 30, 2008. Instead, Liberty approved the second request for preauthorization submitted by Dr. Fain.

Kennedy further contends that a carrier’s agreement to provide benefits precludes any exhaustion argument. See Tex. Mut. Ins., Co. v. Ruttiger, 265 S.W.3d 651, 658 (Tex.App.-Houston [1st Dist.] 2008, pet. granted) (holding bad faith claims in delaying payment of benefits that carrier had agreed to pay in benefit dispute agreement were ripe and trial court had jurisdiction to hear case); In re Tex. Workers’ Comp. Ins. Fund, 995 S.W.2d 335, 337 (Tex.App.-Houston [1st Dist.] 1999, orig. proceeding [mand. denied]) (holding claimant had exhausted administrative remedies on claim for damages because of carrier’s delay in payment of damages it had agreed to pay in benefit dispute agreement). Unlike Fund and Ruttiger, there is no benefit dispute agreement or any other agreement expressly entitling Kennedy to medical benefits. See Kelly, 2008 WL 5085138, at *9 (explaining that relevant benefit dispute agreements in Fund and Ruttiger expressly created entitlement to medical benefits or treatment). Liberty denied the first preauthorization request based on medical necessity and compensability because there was a question as to the whether the condition was due to postoperative changes after surgery in 2007. Liberty subsequently changed its position on compensability in its February 4, 2010 notice of disputed issues. However, Liberty’s change in position as to the com-pensability of the knee injury was not an “agreement” that Kennedy was entitled to knee surgery. Compensability and medical necessity are separate inquiries and both require exhaustion of administrative remedies. See Snyder, 291 S.W.3d at 477.

We similarly reject Kennedy’s reliance on this court’s opinion in Stinson. In Stinson, the Texas Workers’ Compensation Commission decided the issue of com-pensability in favor of Stinson after holding a contested hearing. Stinson, 286 S.W.3d at 82. It was undisputed that Stin-son had exhausted her administrative remedies with respect to compensability after the Commission’s determination of the issue, but the carrier argued that Stinson was required to also exhaust her remedies addressing medical necessity. Id. at 86. The carrier contended that Stinson failed to request preauthorization of physical therapy. Id. at 86. However, the evidence viewed in the light most favorable to the non-movant was sufficient to raise a fact issue as to whether preauthorization was requested. Id. at 89. Because the record contained no evidence of a written denial of preauthorization from the carrier and, absent receipt of a timely written denial of preauthorization, Stinson’s deadlines did not begin to run and the provision regarding waiver of the right to independent review or medical dispute resolution was inapplicable. Id. at 89-90. Therefore, there were no administrative review procedures for Stinson to follow for physical therapy as of July 2004 because her obligations were keyed to receipt of a written preauthorization denial. Id. at 90. Furthermore, there was no indication that any dispute remained for administrative resolution with respect to medical necessity when the carrier subsequently assented to the treatment and began paying for it. Id. Stinson is not applicable here because (1) the receipt of Liberty’s September 30, 2008 written denial of Kennedy’s preau-thorization request triggered her duty to seek reconsideration of that decision; and (2) Liberty did not “assent” to the arthroscopic knee surgery, but approved a second preauthorization request.

Any determination that Liberty’s September 30, 2008 denial of Kennedy’s preauthorization request for arthroscopic knee surgery was improper must have first been made by the DWC. Because Kennedy never took the first step in exhausting her administrative remedies by seeking reconsideration of Liberty’s denial of her first preauthorization request, she never obtained a DWC determination that such denial was improper or that she was entitled to that procedure. See Snyder, 291 S.W.3d at 484 (“[T]he question of whether the first preauthorization was wrongfully denied' — and hence, whether Snyder was damaged by a wrongful delay — can only be answered by first determining whether spinal surgery was medically necessary [when first requested.”). Therefore, the trial court does not have jurisdiction over Kennedy’s claims arising from Liberty’s September 30, 2008 denial of preauthorization for arthroscopic knee surgery.

Impediment to Jurisdiction

If a claim is not within the court’s jurisdiction, and the impediment to jurisdiction cannot be removed, then it must be dismissed. Fodge, 63 S.W.3d at 805. If the impediment to jurisdiction can be removed, then the court may abate proceedings to allow a reasonable opportunity for the jurisdictional problem to be cured. Id. Here, the jurisdictional impediment cannot be removed because Kennedy never sought a DWC determination that she was entitled to arthroscopic knee surgery or any other benefits. See Snyder, 291 S.W.3d at 484 (“As a result of waiver, Snyder has not and cannot exhaust administrative remedies regarding this issue.”).

Conclusion

We hold the trial court abused its discretion in denying Liberty’s plea to the jurisdiction for failure to exhaust administrative remedies before the DWC, and Liberty does not have an adequate remedy by appeal. See In re Liberty Mut. Fire Ins. Co., 295 S.W.3d at 328. Accordingly, we conditionally grant Liberty’s petition for writ of mandamus and direct the trial court to set aside its February 10, 2010 order denying the plea to the jurisdiction and enter an order granting the plea to the jurisdiction and dismissing the case for lack of jurisdiction. The writ will issue only if the trial court fails to act in accordance with this opinion.

      . See 28 Tex. Admin. Code § 134.600(f), (p) (2006).

      . See Tex. Admin. Code § 134.600(o )(Z) (providing that either “requestor or employee” may request reconsideration of a denial of preauthorization "within 15 working days”).

        .See Tex. Lab.Code Ann. § 408.041(a) (Vernon Supp. 2009) (providing that, at request of insurance carrier or employee, or on commissioner's own order, commissioner may order medical examination to resolve questions about impairment caused by compensa-ble injury; attainment of maximum medical improvement; extent of employee’s compen-sable injury; whether injured employee’s disability is direct result of work-related injuiy; ability of employee to return to work; or similar issues).

      . Dr. Harvey’s report states that Kennedy was “referred from Dr. Robert Fain and Liberty Mutual for evaluation of her left knee.” However, Michelle Yaklin states in her affidavit submitted in support of Liberty’s plea to jurisdiction that Dr. Fain referred Kennedy to Dr. Harvey with no mention that Liberty also referred her.

      . A benefit review conference is a nonadver-sarial, informal dispute resolution proceeding designed to (1) explain the rights of the respective parties to a workers’ compensation claim and the procedures necessary to protect those rights; (2) discuss the facts of the claim, review available information in order to evaluate the claim, and delineate the disputed issues; and (3) mediate and resolve disputed issues by agreement. Tex. Lab.Code Ann. § 410.021 (Vernon 2006). A benefit review conference may be requested by a claimant, a carrier, or an employer who has contested compensability. 28 Tex. Admin. Code § 141.1(a) (1991). The request for a benefit review conference must be made on a specified form and must identify and describe the disputed issues. Id. § 141.1(b). On receipt of a request from a party or on its own motion, the DWC may direct the parties to a disputed workers’ compensation claim to meet in a benefit review conference to attempt to reach agreement on the disputed issues involved in the claim. Tex. Lab.Code Ann. § 410.023(a) (Vernon 2006). The DWC shall require the party requesting the benefit review conference to provide documentation of efforts to resolve the disputed issues before the request was submitted. Id. § 410.023(b).

      . A benefit review conference is a prerequisite to a contested case hearing. Tex. Lab.Code Ann. § 410.024 (Vernon 2006).

      . “Chondromalacia or left patella and medial meniscus tear of the left knee” were among those disputed conditions that were not resolved by the benefit review conference. In its February 4, 2009 notice of disputed issues, Liberty states that these conditions are included in the compensable injury.

      . “A request for preauthorization for the same health care shall only be resubmitted when the requestor provides objective clinical documentation to support substantial change in the employee's medical condition. The carrier shall review the documentation and determine if a substantial change in the employee’s medical condition has occurred.” 28 Tex. Admin. Code § 134.600(o )(4).

      . Although Liberty stated in the February 4, 2009 notice of disputed issues it accepted as compensable "chondromalacia of the left patella and medial meniscus tear of left knee,” those conditions were among those that were at issue at the April 2, 2009 contested case hearing and were found by the DWC to be included in the compensable injury.

      . “The requestor or employee may within 15 working days of receipt of a written initial denial request the carrier to reconsider the denial and shall document the reconsideration request.” Tex. Admin. Code § 134.600(o )(l). If the carrier denies reconsideration of its initial denial, the requestor "shall file a request for independent review with the insurance carrier (carrier) that actually issued the adverse determination or the carrier’s utilization review agent (URA) that actually issued the adverse determination no later than the 45th calendar day after receipt of the denial of reconsideration.” Tex. Admin. Code § 133.308(i) (2008). “The Department may dismiss a request for medical necessity dispute resolution if ... the Department determines that the dispute involving a non-life-threatening condition has not been submitted to the carrier for reconsideration; ..." Id. § 133.308(j)(3).

      . When the Commission, claimant, and carrier agree on the claimant's entitlement to compensation benefits, their agreement is binding as a final determination that the benefits are owed, precluding the need for the claimant to seek administrative remedies before she can sue for damages arising from the carrier's unreasonable delay or denial of benefits. Schwartz, 274 S.W.3d at 274 (citing Tex. Lab.Code Ann. §§ 410.029, 410.030 (Vernon 2006)).

      . At her deposition, Kennedy complained about the following three instance of alleged denial or delay of payment of medical benefits: (1) denial of payment for a “chilling contraption” ordered by Dr. Fain; (2) two-week delay for approval of an MRI; and (3) two and one-half-week delay of approval to see a neurosurgeon. However, Kennedy testi-lied that she did not know if DWC review was sought with regard to these complaints. Kennedy has not complained of these instances in her pleadings or otherwise shown that she obtained any DWC determination with regard to these complaints. See Fodge, 63 S.W.3d at 804.


author: LESLIE B. YATES, Justice.

text:
    Robert C. BARTON, Windoor World, Inc., and Deriso Development, LLC, Appellants, v. FASHION GLASS AND MIRROR, LTD., Appellee.
    No. 14-09-00071-CV.
    Court of Appeals of Texas, Houston (14th Dist.).
    July 20, 2010.
    Rehearing Overruled Oct. 21, 2010.

      Ralph C. Perry-Miller, Brent E. Dyer, Dallas, for appellants.
    Frederick Bostwick III, Ryan C. Johnson, Mark C. Hobbs, Waco, for appellee.
    Panel consists of Justices YATES, SEYMORE, and BROWN.
   OPINION

LESLIE B. YATES, Justice.

Appellants Robert C. Barton, Windoor World, Inc., and DeRiso Development, LLC appeal from the trial court’s order confirming an arbitration award in favor of appellee Fashion Glass and Mirror, Ltd. (“FGM”) and severing the arbitration award from the remaining claims. Appellants assert that the trial court erred in confirming the award against Barton and DeRiso, that the arbitrator exceeded the scope of his authority in making the award, and that the trial court improperly severed the arbitration award from the rest of the claims in the lawsuit. We affirm.

BACKGROUND

FGM and Windoor entered into an agreement for FGM to purchase the assets of Windoor from Barton. According to FGM’s brief, DeRiso is another entity owned by Barton and is a third-party beneficiary under the contract. During the negotiations, Barton represented that Windoor’s net worth was about $590,000. Paragraph 2(d) of the purchase agreement provided for a post-closing accounting to occur within 120 days of closing that could adjust the ultimate purchase price based on whether the accounting showed a certain greater or lesser net worth than represented. FGM conducted this accounting, which showed that Windoor’s net worth was only $100,647.64 — substantially less than had been represented. FGM sent a demand letter to Barton and Wind-oor for $343,972.25. Windoor and Barton refused to pay, based on objections they had to FGM’s accounting.

FGM sued Windoor, Barton, and DeRiso for fraud and breach of contract. FGM, Windoor, Barton, and DeRiso entered into a rule 11 agreement. In one section of the agreement, the parties agreed to a limited arbitration before a Certified Public Accountant. The agreement states: “The Parties agree to submit their dispute regarding the paragraph 2(d) calculation dispute to the Arbitrator and that any ruling by the Arbitrator shall be final and binding upon all the parties.” In a separate section of the rule 11 agreement, the parties agreed that if a certain property was sold or transferred, a portion of the proceeds would be placed in escrow to be used for paying any amounts the arbitrator found “to be owed to FGM by Defendants Barton, Deriso [sic] and/or Windoor, or owed to Defendants Barton, Deriso [sic] and/or Windoor by FGM.”

The parties went to arbitration, and the arbitrator issued an award in favor of FGM. The arbitrator found that Windoor’s net worth was even less than FGM’s original figures showed and therefore determined that FGM was owed $475,964 rather than the $343,972.25 that FGM had originally demanded. FGM filed a motion to confirm the arbitration award and sever it from the remainder of the case, which the trial court granted. Windoor, Barton, and DeRiso now appeal.

ANALYSIS

A. Legal Standard for Reviewing Arbitration Awards

Texas law strongly favors arbitration of disputes. See Prudential Sec. Inc. v. Marshall, 909 S.W.2d 896, 898 (Tex. 1995); Baker Hughes OilField Operations, Inc. v. Hennig Prod. Co., 164 S.W.3d 438, 442 (Tex.App.-Houston [14th Dist.] 2005, no pet.). Judicial review of an arbitration award is very limited. See City of Pasadena v. Smith, 292 S.W.3d 14, 20 (Tex.2009). Absent proof of certain statutory or common law exceptions, a trial court cannot vacate or modify an arbitration award. See Baker Hughes, 164 S.W.3d at 442. An arbitration award is entitled to the force and respect of a judgment, and every reasonable presumption must be indulged in favor of the award. See CVN Group, Inc. v. Delgado, 95 S.W.3d 234, 238 (Tex.2002); Baker Hughes, 164 S.W.3d at 442.

B. Award Against Barton and DeRi-so

In their first issue, appellants argue that the trial court erred in confirming the arbitration award as to Barton and DeRiso. They insist that only Windoor agreed with FGM to arbitrate the paragraph 2(d) dispute, and they deny that the arbitration award as written covers Barton and DeRiso. Therefore, they contend that the trial court erred in confirming an arbitration award against Barton and DeRiso when they did not agree to be bound by arbitration and when the arbitration award did not purport to include them. We disagree with both of these arguments.

A rule 11 agreement is a contract subject to the usual rules of contract interpretation. Trudy’s Tex. Star, Inc. v. City of Austin, 307 S.W.3d 894, 914 (Tex.App.Austin 2010, no pet. h.). We interpret a contract in accordance with the intent of the parties as expressed in the plain wording of the contract. See Dynegy Midstream Servs., Ltd. P’ship v. Apache Corp., 294 S.W.3d 164, 168 (Tex.2009); Frost Nat’l Bank v. L & F Distribs., Ltd., 165 S.W.3d 310, 311-12 (Tex.2005). The first paragraph of the rule 11 agreement states that it is being entered into by FGM and Barton, Windoor, and DeRiso, which are collectively referred to as the “Parties.” The arbitration section of the agreement states: “The Parties agree to submit their dispute regarding the paragraph 2(d) calculation dispute to the Arbitrator and that any ruling by the Arbitrator shall be final and binding upon all the Parties.” This language plainly states that all of the parties to the agreement, which include Barton and DeRiso, agree to arbitration and to be bound by the arbitration results. This interpretation is supported by language in the agreement regarding costs, which provides that the arbitration costs “shall be borne equally, one half by Plaintiff and one half by Defendants.” (emphasis added). Furthermore, DeRiso and Barton specifically agreed to place a portion of proceeds from the sale of certain property into an escrow fund for the express purpose of paying “any and all amounts determined by the Arbitrator to be owed to FGM by Defendants Barton, Deriso [sic], and/or Windoor.” The agreement plainly states that all three appellants were agreeing to submit to and be bound by arbitration, to pay one half of all arbitration costs, and to set aside money in escrow to cover at least a portion of a potential arbitration award to FGM against any or all of them.

We also reject appellants’ argument that the arbitration award did not purport to include Barton and DeRiso. In his award, as well as in a pre-award letter to the parties, the arbitrator consistently used the word “Defendant.” From this, appellants argue that the arbitrator was referring only to Windoor and not all three appellants. This is too narrow a view in the circumstances. The arbitrator was working from the arbitration agreement, which explicitly states that all three appellants agreed to be bound by arbitration and had taken steps to fund any award against them. Further, all three appellants participated in the arbitration process. We do not have a complete record of the arbitration showing Barton and DeRi-so’s precise level of participation in the arbitration, but the record contains one letter to the arbitrator from all three appellants explaining “Defendants’ position” regarding “the resolution of the disputes relating to” FGM’s post-closing accounting. And all three appellants paid the arbitration fee. Moreover, the arbitrator took no action showing an intent to treat Windoor separately from the other appellants. Thus, when viewed in context of the language in the arbitration agreement, the information submitted by the parties, and the parties’ conduct in the arbitration, the arbitrator’s award is more reasonably read as including all three appellants. See Babcock & Wilcox Co. v. PMAC, Ltd., 863 S.W.2d 225, 235 (Tex.App.-Houston [14th Dist.] 1993, writ denied) (“If the award is rationally inferable from the facts before the arbitrator, we must affirm the award.”); Riha v. Smulcer, 843 S.W.2d 289, 293-94 (Tex.App.-Houston [14th Dist.] 1992, writ denied) (interpreting reasonableness of arbitration award in light of arbitration proceedings and information before arbitrator); see also CVN Group, 95 S.W.3d at 238 (“All reasonable presumptions are indulged in favor of the award, and none against it.”).

Appellants insist that the trial court had no power to confirm the arbitration award against all three appellants because the underlying contract dispute was between only FGM and Windoor and therefore no pleading supported that liability as to Barton and DeRiso. Appellants have no authority supporting this proposition. The authority they cite involves a trial court entering a final judgment in a case with no arbitration, which must be based on the live pleadings at the time of judgment. See, e.g., Herrington v. Sandcastle Condominium Ass’n, 222 S.W.3d 99, 102 (Tex.App.-Houston [14th Dist.] 2006, no pet.). However, the arbitrator’s authority is derived from the arbitration agreement, not the court pleadings, and the arbitrator can grant relief that a trial court can not. See Tex. Civ. Prac. & Rem. Code Ann. § 171.090 (Vernon 2005) (“The fact that the relief granted by the arbitrators could not or would not be granted by a court of law or equity is not a ground for vacating or refusing to confirm the award.”); City of Pasadena, 292 S.W.3d at 20 (“An arbitrator derives his power from the parties’ agreement to submit to arbitration.”); see also Baker Hughes, 164 S.W.3d at 444 (stating that arbitration pleadings are to be construed liberally).

We conclude that all appellants agreed to be bound by arbitration and that the arbitration award covered all appellants. Therefore, the trial court did not err in confirming the arbitration award against Barton and DeRiso, and we overrule appellants’ first issue.

C. Scope of Authority

In their second issue, appellants argue that the trial court should have vacated the arbitration award on the grounds that the arbitrator exceeded the scope of his authority. See Tex. Civ. PRác. & Rem. Code Ann. § 171.088(a)(3)(A) (Vernon 2005). The scope of an arbitration agreement is a question of law that we review de novo. See McReynolds v. Elston, 222 S.W.3d 731, 740 (Tex.App.-Houston [14th Dist.] 2007, no pet.). We broadly construe arbitration agreements, and the burden is on the party challenging the award to prove the arbitrator acted outside his authority. See id.; Baker Hughes, 164 S.W.3d at 444. There is a presumption that the arbitrator’s actions were within his authority, and we resolve all doubts in favor of the award. See McReynolds, 222 S.W.3d at 740; Peacock v. Wave Tec Pools, Inc., 107 S.W.3d 631, 635-36 (Tex.App.-Waco 2003, no pet.); see also Prudential, 909 S.W.2d at 899 (noting “the strong presumption in favor of arbitration”).

Appellants contend that the arbitrator exceeded the scope of his authority by concluding that they owed FGM an amount that was more than FGM’s pre-arbitration demand. They contend that the dispute submitted to arbitration was narrowly limited to whether FGM’s demand was correct or should be lowered in response to appellants’ objections. We disagree with appellants’ interpretation of the arbitration agreement. Though the agreement was narrow in the sense that it gave the arbitrator authority to resolve only the paragraph 2(d) dispute, it gave the arbitrator full authority to resolve that issue. The parties could have agreed to limit the arbitrator’s authority to enter an award above or below a certain amount, but they did not. Instead, they agreed “to submit their dispute regarding the paragraph 2(d) calculation dispute to the Arbitrator.” Appellants complain that the arbitrator exceeded his authority by requesting supplemental information from the parties and conducting a “de novo accounting.” The power to request supplemental information was well within the arbitrator’s authority. The parties agreed to arbitration before a CPA so he could use his expertise to resolve their accounting dispute, and this gave him implied authority to obtain the information from the parties necessary to do so. See City of Pasadena, 292 S.W.3d at 20 n. 41 (noting that arbitrator’s authority is derived from the matters submitted in the arbitration agreement “ ‘either expressly or by necessary implication’” (quoting Gulf Oil Corp. v. Guidry, 160 Tex. 139, 327 S.W.2d 406, 408 (1959))); accord Baker Hughes, 164 S.W.3d at 443. Further, the limited information we have from the arbitration indicates that the arbitrator did not in fact conduct a totally new accounting but rather worked with FGM’s calculations and appellants’ objections, both of which were adjusted in the course of the arbitration’s adversarial and discovery process.

The arbitrator resolved the parties’ dispute. That he did so in an unexpected manner does not mean the arbitrator acted outside the scope of his authority. See Babcock, 863 S.W.2d at 235 (“When parties agree to arbitration, they agree to accept whatever reasonable uncertainties might arise from the process.”). The trial court did not err in refusing to vacate the arbitration award on the basis that the arbitrator exceeded the scope of his authority. We overrule appellants’ second issue.

D. Severance

In their third issue, appellants argue that the trial court erred in severing the arbitration award from the remainder of the suit. Texas Rule of Civil Procedure 41 provides that any claim against a party can be severed and proceeded with separately. A claim is properly severable if (1) the controversy involves more than one cause of action, (2) the claim to be severed is an independent claim, and (3) the claim to be severed is not so interwoven with the remaining claims that they involve the same facts and issues. See Guar. Fed. Sav. Bank v. Horseshoe Operating Co., 793 S.W.2d 652, 658 (Tex.1990); In re Gen. Agents Ins. Co. of Am., 254 S.W.3d 670, 673 (TexApp.-Houston [14th Dist.] 2008, orig. proceeding [mand. denied]). We review a trial court’s severance determination for an abuse of discretion. Guar. Fed. Sav. Bank, 793 S.W.2d at 658; In re Gen. Agents, 254 S.W.3d at 673.

Appellants contend that the arbitration award is not severable because it is not independent from the remaining claims in the lawsuit. They assert that the arbitrated claim is not independent because it arises out of the same transaction as the fraud claim and therefore would be a compulsory counterclaim. However, that is not the test in the severance context. For a claim to be independent in the severance context, the claim need only be capable of having been asserted as a claim in a separate lawsuit. See Guar. Fed. Sav. Bank, 793 S.W.2d at 658; Collins v. Tex Mall, L.P., 297 S.W.3d 409, 418-19 (Tex.App.-Fort Worth 2009, no pet.); In re Gen. Agents, 254 S.W.3d at 673. The arbitrated claim is based on FGM’s breach of contract claim against Windoor, which certainly could stand alone as an independent lawsuit.

Appellants further assert that the arbitration award is not severable because it is too interwoven with the remaining fraud claim. We disagree. The arbitrator was asked to decide a narrow financial issue, which was the propriety of the post-closing accounting under paragraph 2(d) of the contract. The fraud claim will require proof of misrepresentations, intent, reliance, and a basis for punitive damages, none of which were at issue in the arbitration. Thus, the overlap between the narrow issue arbitrated and the proof necessary at trial on the fraud claim is not significant. Appellants emphasize that the damages are intertwined because FGM cannot recover for both contract and fraud damages based on the same transaction. Even if the damages FGM recovered in the arbitration award impact the damages recoverable in the fraud claim, that is not a basis for denying severance because the trial judge can take the arbitration award into account in entering judgment on the fraud claim. We conclude that the arbitration award is not so interwoven with the fraud claim as to prevent severance. See In re Gen. Agents, 254 S.W.3d at 674-75 (finding that declaratory judgment claim involving validity of agreement not so intertwined as to prevent severance from claims involving misrepresentations and contract negotiations); Crossmark, Inc. v. Hazar, 124 S.W.3d 422, 433 & n. 11 (Tex.App.-Dallas 2004, pet. denied) (finding no abuse of discretion in severing arbitrated claim from remainder of suit because of separate issues to be resolved in non-severed claims).

The trial court did not abuse its discretion in severing the arbitration award from the remaining claims in the suit. We overrule appellants’ third issue.

CONCLUSION

Having overruled appellants’ three issues, we affirm the trial court’s order confirming and severing the arbitration award.

      . The record does not provide any additional information about DeRiso and its relationship to Barton and/or Windoor.

      . Without a complete record of the arbitration proceedings, we presume adequate support for the arbitration award. See Anzilotti v. Gene D. Liggin, Inc., 899 S.W.2d 264, 267 (Tex.App.-Houston [14th Dist.] 1995, no writ).

      . This is unlike the situation in Peacock v. Wave Tec Pools, Inc., 107 S.W.3d 631 (Tex.App.-Waco 2003, no pet.), the authority on which appellants heavily rely, because the arbitration agreement there specified explicit remedies and stated that the arbitrator could not exceed those remedies. Id. at 635.

      . The only authority appellants cite in support of their theory is a case involving a compulsory counterclaim, not severance. See S. Plains Switching Ltd. v. BNSF Ry., 255 S.W.3d 690, 700 (Tex.App.-Amarillo 2008, pet. denied).