Opinion issued May 21, 2013




                                   In The

                              Court of Appeals
                                  For The

                        First District of Texas
                         ————————————
                            NO. 01-11-00836-CV
                          ———————————
                   WALTER EARL TAYLOR, Appellant
                                     V.
CORRECTIONAL MEDICAL SERVICES, INC. AND OCTAVIA MCCOY,
                      Appellees



                   On Appeal from the 10th District Court
                         Galveston County, Texas
                     Trial Court Case No. 10-CV-4108


                        MEMORANDUM OPINION

     Appellant, Walter Earl Taylor, sued appellees, Correctional Medical

Services, Inc. and Octavia McCoy (collectively, “Correctional Medical”), for

medical malpractice pursuant to Texas Civil Practice and Remedies Code Chapter
74.   Taylor failed to serve Correctional Medical with an expert report, and

Correctional Medical moved to dismiss Taylor’s claim for failure to serve a timely

expert report. The trial court granted Correctional Medical’s motion to dismiss. In

one issue, Taylor argues that the trial court abused its discretion in granting the

motion to dismiss.

      We affirm.

                                    Background

      In November 2010, Taylor sued Correctional Medical for medical

malpractice. He alleged that, while he was being held in the Galveston County

Jail, he was given another prisoner’s medication, which caused him to pass out.

On December 23, 2010, Taylor moved the trial court to appoint an expert witness.

In January 2011, the parties entered into an agreed discovery and docket control

order, providing October 20, 2011 as the date by which “experts for all Plaintiffs

shall be designated” and November 21, 2011 as the date by which “experts for all

other parties shall be designated.” Taylor failed to file an expert report.

      More than 120 days after Taylor had filed his petition, Correctional Medical

moved to dismiss his claim based on his failure to file the required expert report.

At the hearing on Correctional Medical’s motion to dismiss, the trial court

informed Taylor that it would “continue” its ruling for thirty days to allow Taylor

time to file the expert report. Thirty days later, Correctional Medical moved the


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trial court to rule on its motion to dismiss, and the trial court granted the motion to

dismiss. This appeal followed.

                                 Standard of Review

      Texas Civil Practice and Remedies Code section 74.351 requires a claimant

in a health care liability claim to file an expert report and serve it on each party not

later than the 120th day after the petition was filed. TEX. CIV. PRAC. & REM. CODE

ANN. § 74.351(a) (Vernon 2011). If the plaintiff fails to serve an expert report, the

trial court must, on the motion of the affected health care provider, dismiss the

plaintiff’s claim with prejudice.     Id. § 74.351(b); Heriberto Sedeno, P.A. v.

Mijares, 333 S.W.3d 815, 818 (Tex. App.—Houston [1st Dist.] 2010, no pet.).

      We review a trial court’s ruling on a section 74.351 motion to dismiss for an

abuse of discretion. Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46

S.W.3d 873, 875 (Tex. 2001) (construing predecessor statute). A trial court abuses

its discretion if it acts arbitrarily or unreasonably or without reference to any

guiding rules or principles. Bowie Mem’l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex.

2002) (per curiam).

                            Expert Report Requirement

      Taylor asserts several arguments in support of his contention that the trial

court abused its discretion in dismissing his case. He argues that: (1) we can

dismiss the trial court’s judgment because the trial court did not file findings of


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fact and conclusions of law; (2) Texas Rule of Civil Procedure 165a allows a court

to reinstate a case upon a finding that the party’s failure was due to accident or

mistake; (3) the trial court “should have granted or at least had a hearing on

[Taylor’s] motion to appoint an expert witness at county expense” because Taylor

is indigent; (4) the parties signed an agreed docket control order that extended the

date for serving the expert report; and (5) section 74.351 is unconstitutional as

applied to him because it has prevented him, an indigent inmate, from pursuing his

claims and thus raises “due process concerns” and violates the Texas

Constitution’s open courts provision.

A.    Failure to File Findings of Fact and Conclusions of Law

      Taylor argues, “Since the trial court did not file findings and conclusions,

the Court of Appeals can dismiss a judgment, then use any legal theory that finds

support in the evidence.” However, we do not dismiss a judgment for a trial

court’s failure to file findings or conclusions. Rather, in a case like this in which

there are no findings of fact or conclusions of law from the trial court, a judgment

dismissing a health care liability claim under section 74.351 will be upheld on any

legal theory supported by the record, and findings necessary to that holding will be

implied. Rosemond v. Al-Lahiq, 331 S.W.3d 764, 766 (Tex. 2011) (per curiam).




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B.    Rule of Civil Procedure 165a

      Taylor further argues that Rule of Civil Procedure 165a requires a court to

reinstate a case upon finding “that the failure of the party or his attorney was not

intentional or the result of conscious indifference, but was due to an accident or

mistake or that the failure has been otherwise reasonably explained.” He argues

that, as an inmate who is not knowledgeable about the law, he should have been

“provided an opportunity after being informed that he needed an expert witness to

remedy that mistake.”

      First, we observe that Rule 165a applies to dismissals for want of

prosecution and is not applicable in Taylor’s case. See TEX. R. CIV. P. 165a.

Furthermore, parties, like Taylor, who appear pro se must comply with all

applicable laws and rules of procedure and are held to the same standards as are

licensed attorneys.     See Milton v. Nguyen, No. 01-11-00958-CV, 2012 WL

3228835, at *1 (Tex. App.—Houston [1st Dist.] Aug. 9, 2012, pet. denied) (mem.

op.) (citing Mansfield State Bank v. Cohn, 573 S.W.2d 181, 184–85 (Tex. 1978)

and Kanow v. Brownshadel, 691 S.W.2d 804, 806 (Tex. App.—Houston [1st Dist.]

1985, no writ)).

C.    Appointment of an Expert Witness

      Taylor asserts that the trial court erred in failing to appoint an expert witness

for him at the county’s expense. Taylor cites no authority, nor do we find any,


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supporting his contention that he is entitled to appointment of an expert witness at

the county’s expense. To the contrary, several courts, including this Court, have

stated that a trial court is not obligated to appoint a free expert to indigent plaintiffs

in health care liability claims. See Gill v. Russo, 39 S.W.3d 717, 719 (Tex. App.—

Houston [1st Dist.] 2001, pet. denied) (“No statute provides for free experts to

support an indigent plaintiff’s case.”); Fails v. Basse, No. 07-08-00445-CV, 2010

WL 877537, at *2 (Tex. App.—Amarillo Mar. 11, 2010, pet. denied) (mem. op.)

(stating that federal authority cited by indigent plaintiff seeking appointment of

free expert “makes it clear that the appointment of an expert is within the

discretion of the trial court” and observing that, even in criminal cases,

appointment of expert is not automatic); cf. Gibson v. Tolbert, 102 S.W.3d 710,

713 (Tex. 2003) (addressing issue of appointed counsel in medical malpractice

cases brought by indigent inmates and finding no automatic right to appointed

counsel); Bankhead v. Spence, 314 S.W.3d 464, 467–69 (Tex. App.—Waco 2010,

pet. denied) (holding that indigent inmate was not entitled to appointed counsel in

medical malpractice suit).

D.    Docket Control Order

      Taylor argues that the parties agreed to extend the deadline to file the expert

report in their January 2011 docket control order. However, the docket control

order was a generic order and did not contain any reference to the deadlines


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imposed by Chapter 74. In Spectrum Healthcare Resources, Inc. v. McDaniel, the

supreme court held that a generic docket control order agreed to by the parties,

which made no reference to the deadlines imposed by Chapter 74, did not establish

the intent of the parties to extend the statutory expert report deadline. 306 S.W.3d

249, 253–54 (Tex. 2010). To extend the deadline to file an expert report, the order

must explicitly indicate the parties’ intention to extend the deadline and reference

that specific deadline. Id. at 254. That is not the case here. Thus, the docket

control order did not extend Taylor’s deadline to file the expert report, and

Correctional Medical’s right to mandatory dismissal in the event that Taylor failed

to file a timely expert report was not affected by the agreed docket control order.

See id.; Heriberto Sedeno, P.A., 333 S.W.3d at 824 (holding right to mandatory

dismissal not affected by agreed docket control order that failed to explicitly

indicate parties’ intention to affect their rights under Chapter 74).

E.    Constitutionality of Section 74.351

      Finally, Taylor argues that section 74.351 is unconstitutional both on its face

and as applied to him. Specifically, he argues that the statute is arbitrary and

unreasonable and that it violated his due process rights and the Texas

Constitution’s open courts provision. However, Taylor failed to present to the trial

court any arguments based on the constitutionality of section 74.351. To preserve

a complaint for appellate review, a party must generally present it to the trial court


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in a timely request or motion. TEX. R. APP. P. 33.1(a)(1). This rule applies to

constitutional issues. Wilson-Everett v. Christus St. Joseph, 242 S.W.3d 799, 801

(Tex. App.—Houston [14th Dist.] 2007, pet. denied) (citing In re L.M.I., 119

S.W.3d 707, 710–11 (Tex. 2003) and Dreyer v. Greene, 871 S.W.2d 697, 698

(Tex. 1993)). Thus, his complaints on this issue are waived.

      However, even if Taylor’s constitutional challenges had been preserved for

our review, he still would not meet with success. To sustain a facial challenge to a

statute’s constitutionality, a party must show that the statute, by its own terms,

always operates unconstitutionally, and merely asserting that a provision is

arbitrary and unreasonable fails to demonstrate that the statute always operates

unconstitutionally. See Herrera v. Seton Nw. Hosp., 212 S.W.3d 452, 461 (Tex.

App.—Austin 2006, no pet.) (holding that mere assertion that section 74.351 is

“arbitrary and unreasonable” fails to demonstrate that statute always operates

unconstitutionally).

      Furthermore, while the Texas Constitution’s open courts guarantee prohibits

the Legislature from making “a remedy by due course of law contingent upon an

impossible condition,” a person claiming an open courts violation must raise a fact

issue establishing that he did not have a “reasonable opportunity to be heard.”

Stockton v. Offenbach, 336 S.W.3d 610, 617–18 (Tex. 2011) (quoting Diaz v.

Westphal, 941 S.W.2d 96, 100 (Tex. 1997) and citing Yancy v. United Surgical

                                         8
Partners Int’l, Inc., 236 S.W.3d 778, 785 (Tex. 2007)); see also TEX. CONST. art I,

§ 13 (“All courts shall be open, and every person for an injury done him, in his

lands, goods, person or reputation, shall have remedy by due course of law.”).

Taylor has failed to raise a fact issue that he did not have a reasonable opportunity

to be heard—in fact, the trial court granted him an additional thirty days to procure

an expert report and he failed to do so. See Stockton, 336 S.W.3d at 618; see also

Bankhead, 314 S.W.3d at 466 (noting that Texas courts have held that expert

report requirement itself does not violate open courts guarantee because it is

rationally related to purpose of statute to discourage frivolous malpractice suits)

(citing Offenbach v. Stockton, 285 S.W.3d 517, 522–24 (Tex. App.—Dallas 2009),

aff’d, 336 S.W.3d 610 (Tex. 2011) and Smalling v. Gardner, 203 S.W.3d 354,

370–71 (Tex. App.—Houston [14th Dist.] 2005, pet. denied)).

      Regarding Taylor’s claim that the dismissal of his case denied him due

process of law because it prevented him from pursuing his claims, we observe that

multiple courts of appeal have held that section 74.351 was not unconstitutional as

applied. See, e.g., Bankhead, 314 S.W.3d at 469 (holding section 74.351 was not

unconstitutional as applied in dismissing health care liability claim of indigent

inmate); Herrera, 212 S.W.3d at 461 (holding section 74.351 did not violate due

course of law provision of Texas Constitution); Thoyakulathu v. Brennan, 192

S.W.3d 849, 855–56 (Tex. App.—Texarkana 2006, no pet.) (holding section

                                         9
74.351 was not unconstitutional as applied to plaintiff who failed to meet expert

report deadline due to malfunctioning fax machine and stating, “[W]e conclude

that [the] statute need not provide exceptions that would encompass any

conceivable complication in order to pass constitutional muster”); see also Walker

v. Gutierrez, 111 S.W.3d 56, 66 (Tex. 2003) (applying predecessor to section

74.351 and determining that dismissal of suit due to claimant’s failure to file expert

report does not violate due process guarantees).1

      Thus, we conclude that the trial court did not abuse its discretion in

dismissing Taylor’s case, and we overrule Taylor’s sole issue.




1
      In his reply brief, Taylor argues for the first time that the trial court abused its
      discretion in dismissing his case because Correctional Medical did not provide
      him with his medical records. Generally, we should not consider issues raised for
      the first time in a reply brief filed on appeal. See City of San Antonio v.
      Schautteet, 706 S.W.2d 103, 104 (Tex. 1986) (per curiam); see also TEX. R. APP.
      P. 38.3 (providing that appellant may file reply brief “addressing any matter in the
      appellee’s brief” but that court may consider and decide case before reply brief is
      filed). Furthermore, even assuming that Correctional Medical improperly failed to
      provide Taylor with his own medical records, the failure of a defendant to produce
      medical records does not excuse a health care liability plaintiff’s duty to file a
      timely expert report. Ramirez v. Doctors Hosp. at Renaissance, Ltd., 336 S.W.3d
      352, 354 (Tex. App.—Corpus Christi 2011, no pet.). Nor does “a claimant’s
      efforts to obtain medical records . . . serve to toll or extend the expert report
      deadline.” Id.; see also Estate of Regis v. Harris Cnty. Hosp. Dist., 208 S.W.3d
      64, 68 (Tex. App.—Houston [14th Dist.] 2006, no pet.) (holding that plaintiff was
      not entitled to equitable extension of expert report deadline on basis that she made
      good faith effort to obtain her medical records and defendant did not provide
      them); Offenbach v. Stockton, 285 S.W.3d 517, 521 (Tex. App.—Dallas 2009),
      aff’d, 336 S.W.3d 610 (Tex. 2011) (holding that section 74.351 does not contain
      “good faith” or “due diligence” exception to 120-day expert report deadline).
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                                    Conclusion

      We affirm the trial court’s dismissal of Taylor’s case.




                                              Evelyn V. Keyes
                                              Justice

Panel consists of Justices Keyes, Sharp, and Huddle.




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