
NO. 07-02-0489-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL A

JUNE 17, 2003

______________________________


IN THE INTEREST OF S.C.H. AND S.L.H., MINOR CHILDREN


_________________________________

FROM THE 251ST DISTRICT COURT OF RANDALL COUNTY;

NO. 50123-C; HONORABLE PATRICK A. PIRTLE, JUDGE

_______________________________

Before JOHNSON, C.J., and REAVIS and CAMPBELL, JJ.
MEMORANDUM OPINION (1)
	Appellant Danny Morris Henry perfected this appeal from the trial court's order in
a suit to modify the parent-child relationship.  Pending before this Court is Henry's motion
to dismiss the appeal by which he represents that he wishes to withdraw his notice of
appeal.  The motion is signed by Henry and his counsel and by the attached certificate of
conference, counsel indicates that appellee Dawn Lynn Wauer is in agreement.
	Without passing on the merits of the appeal, pursuant to Rule 42.1(a)(1) of the
Texas Rules of Appellate Procedure we grant the motion and dismiss the appeal.  Having
dismissed the appeal at Henry's request, no motion for rehearing will be entertained and
our mandate will issue forthwith.
						Don H. Reavis
						    Justice
1. Tex. R. App. P. 47.2(a).


nt's motion to dismiss and
granting Borchardt a 30-day extension to cure deficiencies in previously filed expert reports
and to file an additional expert report from a neurosurgeon. 
	Covenant contends the trial court abused its discretion in failing to dismiss
Borchardt's suit because there was no good faith effort to serve an expert report that
satisfied section 74.351(r)(6).  Absence of a good faith effort, Covenant argues, required
dismissal with prejudice, and the granting of a 30-day extension was a "clear abuse of
discretion, warranting issuance of a writ of mandamus."  Borchardt responds that a decision
to grant a 30-day extension is not subject to review by mandamus.
Standard of Review
	  Mandamus, as distinguished from an ordinary appeal, is an extraordinary remedy
available only in limited circumstances where the trial court violates a duty imposed by law
or clearly abuses its discretion and when there is no other adequate remedy at law. CSR
Ltd. v. Link, 925 S.W.2d 591, 596 (Tex. 1996); Walker v. Packer, 827 S.W.2d 833, 840
(Tex. 1992).  The party seeking relief must establish both the absence of an adequate
remedy by appeal and the trial court's abuse of discretion.  See In re Bay Area Citizens
Against Lawsuit Abuse, 982 S.W.2d 371, 375 (Tex. 1998); CSR Ltd. v. Link, 925 S.W.2d
591, 596 (Tex. 1996).  A court of appeals acts in excess of its writ power when it grants
mandamus relief absent these circumstances.  Johnson v. Fourth Court of Appeals, 700
S.W.2d 916, 917 (Tex. 1985).  According to In re Bristol-Myers Squibb Co., 975 S.W.2d
601, 605 (Tex. 1998), 
	in determining whether mandamus should issue, we cannot plumb the
subjective reasoning of the trial court. We must focus on the record that was
before the court and whether the decision was not only arbitrary but also
amounted "to a clear and prejudicial error of law."

	A trial court's ruling on a motion to dismiss a health care liability claim is reviewed
for clear abuse of discretion.  See Bowie Memorial Hospital v. Wright, 79 S.W.3d 48, 52
(Tex. 2002); American Transitional Care v. Palacios, 46 S.W.3d 873, 878 (Tex. 2001).  See
also Kendrick v. Garcia, 171 S.W.3d 698, 702-03 (Tex.App.-Eastland 2005, pet. filed)
(utilizing the abuse of discretion standard of Palacios to review denial of a motion to dismiss
under section 74.351).  A trial court abuses its discretion if it acts in an arbitrary or
unreasonable manner without reference to any guiding rules or principles.  Downer v.
Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985), cert. denied, 476 U.S.,
106 S.Ct. 2279, 90 L.Ed.2d 721 (1986).  There is no abuse, however, simply because a
trial court may decide a matter within its discretion differently than an appellate court.  Id. 
When reviewing matters committed to the trial court's discretion, a court of appeals may
not substitute its own judgment for that of the trial court, thus insulating the trial court's
decision from appellate second guessing.  Bowie, 79 S.W.3d at 52.    
	A relator challenging a trial court's ruling as an abuse of discretion labors under a
heavy burden.  Johnson, 700 S.W.2d at 917.  The relator must establish that under the
circumstances of the case, the facts and law permit the trial court to make but one decision. 
Id.  This determination is essential because mandamus will not issue to control the action
of a lower court in a matter involving the exercise of discretion.  Id.
  Relying on Palacios, Covenant contends that if a trial court determines that an
expert report does not meet the requirements of section 74.351(r)(6), it must dismiss the
claim against the defendant with prejudice.  Palacios, however, was decided under former
article 4590i, section 13.01, (2) which has been codified at section 74.351 of the Texas Civil
Practice and Remedies Code.  Among other things, Palacios addressed subsections (l) and
(r)(6) of former section 13.01, whereas section 74.351(c) provides:
	If an expert report has not been served within the period specified by
Subsection (a) because elements of the report are found deficient, the court
may grant one 30-day extension to the claimant in order to cure the
deficiency.
(Emphasis added).  In its petition for writ of mandamus, Covenant concedes Borchardt's
expert reports were "deficient" in two respects.  

	In construing the current statute, our objective is to give effect to legislative intent. 
Continental Cas. Ins. Co. v. Functional Restoration Associates, 19 S.W.3d 393, 398 (Tex.
2000).  In our analysis, we consider the plain and ordinary meaning of the statute's words
and examine the entire statute, not only the questioned sections.  Tex. Gov't Code Ann. §
311.011(a) (Vernon 2005); Fitzgerald v. Advanced Spine Fixation Systems, Inc., 996
S.W.2d 864, 865 (Tex. 1999).  Further, it is a rule of statutory construction that every word
of a statute must be presumed to have been used for a purpose and every word excluded
presumed to have been excluded for a purpose.  See Laidlaw Waste Systems (Dallas), Inc.
v. City of Wilmer, 904 S.W.2d 656, 659 (Tex. 1995); Walter v. City of Georgetown, 86
S.W.3d 249, 255 (Tex.App.--Austin 2002, pet. denied).
	If an expert report has not been timely served, section 74.351(b) provides that upon
the health care provider's motion, the trial court shall award attorney fees and costs and
dismiss the claim with prejudice. (3)  However, the Legislature expressly provided that
dismissal of the suit is "subject to Subsection (c)," which authorizes the trial court to grant
one 30-day extension to cure a deficient expert report. (4) 
	  The relief a court grants under subsection (b) is always "subject to Subsection (c)." 
See Academy of Oriental Medicine, L.L.C. v. Andra, 173 S.W.3d 184, 188 (Tex.App.-Austin
2005, no pet.); Natural Gas Pipeline Co. of America v. Law, 65 S.W.3d 121, 126 (Tex.App.--Amarillo 2001, pet. denied) (holding that the words "subject to" mean "subordinate to,"
"subservient to," or "limited by").  The term "may" as used in subsection (c) vests the trial
court with discretion to grant a 30-day  extension.  See Tex. Gov't Code Ann. § 311.016(1). 
See also Hardy v. Marsh, 170 S.W.3d 865, 870-71 (Tex.App.-Texarkana 2005, no pet.)
(construing "may" in section 74.351(c) as vesting the trial court with discretion to grant an
extension).  
	 Unlike the former statute, the Legislature omitted from subsection (c) terms such
as "good cause," "accident," or "mistake" in vesting the trial court with discretion to grant
an extension.  Thus, Covenant has failed to demonstrate a clear abuse of discretion by the
trial court in granting Borchardt a 30-day extension and denying its motion to dismiss. 
	Additionally, Covenant has not satisfied the second prong for entitlement to
mandamus relief by establishing it has no adequate remedy at law.  As Borchardt points
out, Covenant filed a second motion to dismiss challenging the "cured" expert reports that
is still pending in the trial court.  Should Covenant obtain a favorable ruling, the case is
subject to dismissal with prejudice.  We conclude Covenant has not demonstrated
entitlement to mandamus relief.
	We have not overlooked other issues raised by Covenant.  However, we are not
authorized to render advisory opinions on issues not necessary to final disposition of this
proceeding.  See Tex. R. App. P. 47.1; Valley Baptist Medical Center v. Gonzalez, 33
S.W.3d 821, 822 (Tex. 2000).
	Accordingly, the petition for writ of mandamus is denied.

						Don H. Reavis
						    Justice



 
 




1. John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment.
2. See Act of May 5, 1995, 74th Leg., R.S., ch. 140, § 1, 1995 Tex. Gen. Laws 985.
3. The term "shall" imposes a duty and is mandatory.  Tex. Gov't Code Ann. §
311.016(2).  See also Harris County Appraisal Dist. v. Consolidated Capital Properties, 795
S.W.2d 39, 41 (Tex.App.--Amarillo 1990, writ denied). 
4. Section 51.014(a)(9) of the Code provides that an interlocutory appeal may not be
taken from an order granting an extension of time.  Added by Act of June 2, 2003, 78th
Leg., R.S., ch. 204, § 1.03, 2003 Tex. Gen. Laws 849.

