Petition for Writ of Mandamus Denied and Majority and Concurring Opinions filed October 9, 2008.
In The
Fourteenth Court of Appeals
____________
NO. 14-08-00204 -CV
____________
IN RE MEMORIAL HERMANN HEALTHCARE SYSTEM
and MEMORIAL HERMANN HOSPITAL SYSTEM, Relators
ORIGINAL PROCEEDING
WRIT OF MANDAMUS
C O N C U R R I N G O P I N I O N
Section 15.10(i) of the Texas Free Enterprise and Antitrust Act is unambiguous. Therefore, this court need not resort to any tool of interpretation or construction to determine the meaning of the statute. The court simply should hold that it means what it says and enforce it as written. Instead, after holding that the statute is unambiguous, the court considers the desirability of the consequences of the possible interpretations. Though the court is free to pursue this course, it is best not to do so because analyzing such matters is unnecessary and potentially problematic. Accordingly, though I concur in the court=s judgment, I do not join in section B of the majority opinion.
In the Code Construction Act, the Texas Legislature has observed that, even after concluding a statute is unambiguous, a court may consider various matters including the statutory objectives, legislative history, and the consequences of a particular construction. See Tex. Gov. Code Ann. ' 311.023 (Vernon 2005). Notably, this statute does not require consideration of such matters; it merely states that courts may consider them. Even before enactment of the Code Construction Act, courts were free to consider such matters if they chose to do so and to mention these matters in opinions. Nonetheless, with rare exceptions not applicable in the case at hand, these matters cannot be used to alter the unambiguous meaning of the statute. See Fleming Foods of Texas, Inc. v. Rylander, 6 S.W.3d 278, 283B84 (Tex. 1999). Therefore, references to them amount to obiter dicta.
Moreover, discussion of this court=s views regarding the desirability of the consequences of a proposed construction of section 15.10(i) might suggest to some that this court would adopt a construction of the statute it believes has the most desirable consequences, even though that construction might not be reasonable in light of the statute=s unambiguous text. See ante at pp. 6B7. Consideration of the desirability or undesirability of the consequences of a statutory interpretation cannot change this court=s duty to give effect to the statute=s unambiguous language. See, e.g., Fleming Foods of Texas, Inc., 6 S.W.3d at 281B84 (reversing court of appeals which Texas Supreme Court stated had given the legislative history precedence over the statute=s unambiguous meaning). For this reason, when construing an unambiguous statute, the better course is not to address the desirability of the consequences of the possible interpretations of the statute.[1]
The legislature is elected by the people and is entrusted with enacting laws. If the legislature enacts an unambiguous law that wreaks undesirable consequences, it is the legislature=s office to fix it. It is not this court=s office to change or decline to enforce a clear and unambiguous law because, in the court=s view, that law produces undesirable consequences. For this reason, the court should not address the desirability of the consequences of a proffered interpretation of an unambiguous statute. Even though courts may consider and discuss these and other matters regarding unambiguous statutes, the best practice is not to do so. See, e.g., Wisconsin Pub. Intervenor v. Mortier, 501 U.S. 597, 621, 111 S. Ct. 2476, 2490, 115 L. Ed. 2d 532 (1991) (Scalia, J., concurring in the judgment) (stating that best practice would be not to use legislative history that cannot affect the result in the case because it may confuse courts, such as the state supreme court in the case at hand, into ruling that the legislative history can change the interpretation of an unambiguous statute); St. Luke=s Episcopal Hosp. v. Agbor, 952 S.W.2d 503, 505 (Tex. 1997) (stating that courts need not resort to extrinsic aids in construing an unambiguous statute and that courts must find the legislature=s intent as expressed in the language of the statute); Jones v. Del Andersen & Assoc., 539 S.W.2d 348, 351 (Tex. 1976) (stating that, when a court has determined the legislative intent expressed in a statute=s unambiguous language, the court=s function is not to explore the wisdom of the statute but to give effect to the unambiguous language). The better course is to eschew these considerations and instead glean the meaning of the statute from its clear and unambiguous language.
/s/ Kem Thompson Frost
Justice
Petition Denied and Majority and Concurring Opinions filed October 9, 2008.
Panel consists of Chief Justices Hedges, Justice Frost, and Senior Justice Hudson.* (Hedges, C.J., majority).
[1] Some courts have stated that, if there are two reasonable interpretations of a statute and if one would lead to an absurd result and the other would not, then the court must choose the reasonable interpretation that avoids an absurd result. See Univ. of Tex. Southwestern Med. Center v. Loutzenhiser, 140 S.W.3d 351, 356B57 & n.20 (Tex. 2004); Cramer v. Sheppard, 167 S.W.2d 147, 155 (1942) (stating A[w]e also are not unmindful of the rule that constitutional and statutory provisions will not be so construed or interpreted as to lead to absurd conclusions, great public inconvenience, or unjust discrimination, if any other construction or interpretation can reasonably be indulged in; but this rule only applies where the constitutional or statutory provision under consideration is open to more than one construction or interpretation@). Some courts have indicated that the Aabsurd results@ doctrine applies even if the statute is unambiguous. See, e.g., Tex. Dep=t of Prot. & Reg. Servs. v. Mega Child Care, Inc., 145 S.W.3d 170, 177 (Tex. 2004). Even if this doctrine applies to unambiguous statutes, it is clear that it would be rare indeed for a court to conclude that the unambiguous meaning of the statute is absurd. See Brazos River Auth. v. City of Graham, 354 S.W.2d 99, 109 n.3 (Tex. 1961) (stating that Aoperating as we are under a strict theoretical division of governmental powers, it would take a bit of doing on the part of the judiciary to say, in the absence of ambiguous and uncertain statement or patent and manifest absurdity, that the Legislature intended something different from the clear import of the words chosen by it@). In any event, unambiguous language that produces a patently absurd result is significantly different from unambiguous language that produces undesirable consequences, and no party asserts that any interpretation of the statute in this case would produce a patently absurd result.
*Senior Justice J. Harvey Hudson sitting by assignment.