dissenting.
The core issue in this appeal is not what rules society should provide for workplace accidents, but which branch of government is entitled to make those rules. The court has denied the people of Texas, acting through their legislature and governor, the ability to rewrite an old statute because the 1989 changes stray too far from the common law. That is, judges have denied the people the right to make meaningful changes in judge-made rules of law. The court says the legislature tried to take away common-law rights without providing an adequate substitute. Then, refusing to consider all the evidence of the statute’s adequacy, the court strikes it down. The message? Courts will permit legislative tinkering but not major changes in the common law. For some observers, this is a case about what rules will apply to lawsuits involving on-the-job injuries. But really this case is about who governs.
The court’s rationale is twofold. First, the court says the 1989 act alters the common law too much. The act seeks to make wholesale change, which the constitution’s open courts provision does not permit. Second, the court says the act does not accomplish all its goals; in particular it does not increase benefits to workers, which was one of several goals. Therefore it is not a rational piece of legislation, and it violates the constitution’s equal protection and substantive due process guarantees. This, in a nutshell, is what the court has said. I respectfully dissent from this unwarranted exercise of judicial power.
When the people in a democracy think judges have allowed the common law or a statutory scheme to get out of hand, they are within their rights to seek a cure from the legislature. After all, legislatures are in the business of governing, and governing sometimes calls for a change in court-made rules. “Indeed, the great office of statutes is to remedy defects in the common law as they are developed, and to adapt it to the changes of time and circumstances.” Munn v. Illinois, 94 U.S. 113, 134, 24 L.Ed. 77, 87 (1877).
Of course, such changes may not violate the constitution. Justice Biery’s concurrence *114goes to some length to make an elementary point that no one disputes: courts have a duty to judicially review statutes and to void them if they violate the constitution. I heartily agree with that proposition. But if the constitution has not clearly been violated, we have an equally important constitutional duty to uphold statutes against constitutional attack by those who were outvoted in the legislature. The legislative majority and the people who elected them are entitled to no less. Judicial review, like all power, can be abused. If we engage in judicial review with hostility instead of deference toward the statute, we abuse our power.
Expansive interpretations of thé bill of rights may add to individual rights but they also subtract from the majority’s power to legislate. I agree that if the bill of rights makes a topic off-limits to the legislature, courts must stand fast against the legislation. But that begs the question: what limits has the bill of rights set? The court holds that the constitutional guarantee — “All courts shall be open, and every person ... shall have remedy by due course of law” — means the legislature cannot significantly change court-made rules. That is an excessive extension of the judiciary’s power to define judicial turf expansively and to declare it off-limits to the legislature.
Let us be very clear: The court’s result is not required by precedent. When the Texas Supreme Court upheld the first workers’ compensation act in 1916, it stated broadly that individuals have no legal right, enforceable in court, to prevent the legislature from changing common-law rules. Middleton v. Texas Power & Light Co., 108 Tex. 96, 185 S.W. 556, 559 (1916), aff'd, 249 U.S. 152, 39 S.Ct. 227, 63 L.Ed. 527 (1919). The United States Supreme Court has always followed the same rule. See, e.g., Duke Power Co. v. Carolina Environmental Study Group, Inc., 438 U.S. 59, 87-88 & n. 32, 98 S.Ct. 2620, 2638 & n. 32, 57 L.Ed.2d 595 (1978); Middleton v. Texas Power & Light Co., 249 U.S. 152, 163, 39 S.Ct. 227, 231, 63 L.Ed. 527 (1919); New York Central R.R. Co. v. White, 243 U.S. 188, 198-202, 37 S.Ct. 247, 250-52, 61 L.Ed. 667 (1917); Munn v. Illinois, 94 U.S. 113, 134, 24 L.Ed. 77 (1877).
Later Texas eases have said in dictum that under Middleton the legislature may repeal common-law rules if an adequate substitute is provided. See Lucas v. United States, 757 S.W.2d 687, 690 (Tex.1988); Nelson v. Krusen, 678 S.W.2d 918, 922 (Tex.1984); Sax v. Votteler, 648 S.W.2d 661, 667 (Tex.1983); Lebohm v. City of Galveston, 154 Tex. 192, 275 S.W.2d 951, 954 (1955). That is not what Middleton said,1 and it is not what the Texas *115Constitution says. But the “adequate substitute” statement has been repeated in dictum so often that I accept it as binding on this court. Nevertheless, the Texas Supreme Court has never struck down a statute that provides a substitute for common-law rules, especially a comprehensive and well-thought-out scheme such as this statute. The recent supreme court decisions have dealt with statutes that totally withdrew the right to seek damages above a certain limit (Lucas) or statutes that set up obstacles that made it impossible to bring a suit on time (Sax, Nelson). None of these decisions involved a statutory substitute for common-law rights.
The “adequate substitute” concept seems to have originated in Lebohm. There the court struck down a provision of the Galveston charter denying liability for defects on city streets and sidewalks. The court held that a city cannot “arbitrarily” abolish a well-established right to sue. On rehearing the city suggested that under the original opinion the workers’ compensation act would also be unconstitutional because it abolished the right to sue in tort for workplace injuries.
The Lebohm court’s answer on rehearing to the city’s suggestion spells out the meaning of the “adequate substitute” principle that we apply today. In its original opinion the supreme court had said legislative bodies may not “arbitrarily abolish causes of action.” Perhaps, said the court on rehearing, we should have said that the open courts provision “prohibit[s] legislative bodies from arbitrarily withdrawing all legal remedies from one having a cause of action well established and well defined in the common law.” 275 S.W.2d at 954 (emphasis added). The court stressed the word “arbitrarily” and noted that the workers’ compensation act “simply substituted a different but certain and adequate legal remedy for the one that existed at common law.” Id.
The court then said that statutes revising and redefining common-law rights may also be justified by public policy and the general welfare. The court summarized its holding as follows:
Thus it may be seen that legislative action withdrawing common-law remedies for well established common-law causes of action for injuries to one’s “lands, goods, person or reputation” is sustained only when [1] it is reasonable in substituting other remedies, or when [2] it is a reasonable exercise of the police power in the interest of the general welfare. Legislative action of this type is not sustained when it is arbitrary or unreasonable.
Id. at 955. The court stressed that it was not denying the legislature power “by general law [to] abolish all causes of actions against cities for injuries growing out of simple negligence in the maintenance of streets.” That question was not before the court; at issue was a city provision, and the court could think of no public policy or general welfare reasons to justify such a law only within the city limits of Galveston. Id.
Neither Lebohm nor Middleton nor any other supreme court case suggests that the judiciary strictly weighs the adequacy of a statutory substitute as detailed as the one before us. Instead the cases simply say that a legislature may not be arbitrary in abolishing common-law actions. The court in Le-bohm cautioned the bench and bar to give proper respect to the emphasis the court placed on the word “arbitrarily” in its holding. 275 S.W.2d at 954. That is, a statutory substitute for the common law will be upheld as constitutional unless it is truly arbitrary.
Today’s decision does not follow from these cases. It is a bold, new exertion of judicial hegemony over the legislature in a field where no part of the constitution gives us *116authority. Because the constitution does not deprive the legislature of power to enact this statute, it is our duty to uphold it.
In holding that the 1989 law is arbitrary the court today has viewed the statute with hostility and not deference. I make that statement for several reasons, which are more fully stated below. (1) The court refuses to address my suggestion that workers can waive any constitutional objections to the act. Even if it would violate the constitutional rights of these particular plaintiffs to force the act on them, there will be workers who do not object to its provisions; by not objecting, they waive any constitutional objections to the act. For such workers, the act may constitutionally apply. The court says this issue was not raised, but no plaintiff has standing to assert that this statute is unconstitutional as to persons who accept its provisions. This is not a private lawsuit; it is a public issue of tremendous importance in which no one has the right to concede the rights of future workers who may want the act to apply to them. (2) The court has stressed the evidence against the legislature’s conclusions and downplayed or omitted the evidence supporting the legislature. If we were acting as a jury, that would be a valid approach. But we are a court reviewing an act of the legislature. We owe the legislative judgment a level of deference comparable to the deference we give a jury verdict. The majority opinion reads like a brief against the law instead of the reasoning of a dispassionate court reviewing legislation with deference to the legislature’s right to evaluate society’s problems differently from us. (3) The court has used arguments that would invalidate much of the old workers’ compensation law, enacted in 1913, upheld by the Texas Supreme Court in 1916 and by the United States Supreme Court in 1919, and never seriously challenged since then. Needless to say, it is unsound judicial reasoning that would invalidate legislation that everyone admits is valid. See, e.g., Lebohm, 275 S.W.2d at 954-55 (on rehearing) (court implicitly concedes that its original opinion would be unsound if it undermined the admittedly constitutional old workers’ compensation act). (4) The court has selectively stated the legislature’s goals in enacting this statute. Ignoring other goals that the act clearly furthers (efficiency, objectivity, predictability, uniformity, and consistency in claim assessment), the court holds that the act does not accomplish the goal of increasing benefits and is therefore unconstitutional. (5) The court will not even allow the commission to revise the AMA Guides to meet any judicial objections, even though the legislature expressly said that the commission should be given such an opportunity if a court finds the act invalid.
In addition, there is an assumption pervading the court’s opinion that should be identified at the outset — that the 1989 act is an insurer-employer scheme to reduce benefits to workers. One can read the court’s opinion without learning one good thing about the act.
The truth is that the act makes many improvements over the common law, whose deficiencies as a remedy for workplace injuries are well known. To begin with, if workers had to resort to common-law suits instead of workers’ compensation benefits, they would have to wait months and sometimes years before their suits were tried. “[C]om-mon-law remedies [are] not known in modern times for either their speed or economy.” Duke Power Co. v. Carolina Environmental Study Group, Inc., 438 U.S. 59, 92, 98 S.Ct. 2620, 2640, 57 L.Ed.2d 595 (1978). At common law, workers would receive no interim payments while waiting for trial. Frequently they would lose at trial because most workplace injuries are not caused by employer fault. And at common law, workers would not receive benefits while waiting for trial; they would either have to return to work to make ends meet — and risk a lower recovery for lost earning capacity — or else hold out until trial.
The 1989 law is clearly an adequate substitute for this cumbersome common-law remedy. Under the 1989 act:
• Almost every kind of workplace injury will be compensated. Workers need not prove negligence or proximate cause, and comparative negligence is no defense.
*117• Wage replacement during the temporary-benefit period is increased from a maximum of $252 weekly under the old act (zero under the common law) to $438. Minimum wage replacement increases from $42 weekly to $64.
• Lump-sum settlements are limited. This prevents workers from wasting away a settlement and then having to seek other relief, and prevents them from bargaining away their right to lifetime medical benefits for a larger lump sum.
• The worker cannot contract away too much of the recovery to a lawyer. The legislature was aware that under the old law workers with lawyers recovered an average of $7500 ($10,000 minus $2500 in attorneys’ fees), while workers without lawyers recovered an average of $8500.
• Insurers must promptly begin payments or deny compensability. They cannot delay.
• Benefits are more uniform and standard instead of varying with venue and lawyer ability.
• The commission may order benefits advanced in cases of hardship.
• The commission is given the duty and power to ensure workplace safety. Workers who report safety violations are protected from retaliation.
• The commission is given strong enforcement powers.
• An ombudsman office is established to assist workers with all aspects of the system.
A reviewing court should take into account all these improvements over the common law and assess the statute as a whole. Because workers’ compensation statutes necessarily rest on trade-offs and compromises, any such statute must be somewhat over- and under-inclusive in individual cases. Inevitably, in some cases a workers’ compensation act will be over-inclusive in that some employees will recover even though their suit would not have succeeded at common law; an example would be an employee injured through his own negligence, or injured by something else that was not the employer’s fault. (Many, many injuries occur when an employee strains his back lifting, or negligently performs his work. Those injuries would not be compensated in a common-law negligence lawsuit, but they are compensated under workers’ compensation statutes.) In other eases the act will be wider-inclusive because some employees will recover less than they could have recovered at common law; an example would be a worker who suffers mental trauma and loss of consortium, compensa-ble at common law but not under the workers’ compensation system. Similarly, pain is not compensable in most workers’ compensation statutes, but is compensable at common law.
Legislative substitutes for common-law actions must be judged as a whole or they will always be held unconstitutional. It is not proper to take isolated parts of the law and judge them separately; we should judge the whole law, which (like the old statute) consists of compromises and trade-offs. It is true that a general societal interest in saving money did not justify the cap on damages at issue in Lucas v. United States, 757 S.W.2d 687, 691 (Tex.1988). But here we are considering a detailed statutory scheme that makes trade-offs, not a simple cap on damages. The supreme court in Lebohm expressly held that public policy and the general welfare may justify a statutory substitute for the common law. 275 S.W.2d at 954-55.
Workers’ compensation statutes have always been considered proper and valid exercises of the legislature’s right to compromise and balance different interests. Employers give up common-law defenses and the right to insist on proof of negligence; they receive limited but more certain liability. Employees give up the right to common-law damages; they receive more certain but limited recovery based on liability without fault. See Paradissis v. Royal Indem. Co., 507 S.W.2d 526, 529 (Tex.1974); Middleton v. Texas Power & Light Co., 108 Tex. 96, 185 S.W. 556 (1916). We do not assess the adequacy of the trade-off as it operates in a specific case. There will always be individuals who would have recovered more money at common law than under a statutory system (and employers who would have owed less at common *118law), but that does not mean workers’ compensation statutes are unconstitutional.
I now turn to a constitutional review of the act and consider the court’s analysis on its own terms.
I.Standing.
I would hold that plaintiff Rivero has standing to challenge most of the act and that plaintiff Garcia has standing to challenge the opt-out provision. But in my view the other plaintiffs lack standing because they do not even allege that they have been injured.
Plaintiff Rivero has standing. He has been injured and is receiving benefits under the new act. Though his temporary benefits are greater than his pre-injury salary (and the reader should remember this when considering the court’s characterization of the act as “draconian”), the trial court found that his injury probably will not be compensable under the impairment guidelines and he will probably not qualify for supplementary benefits.2 This is an adjudicative factfinding that this court must accept, unlike the other findings of legislative facts that prompted the legislature to enact the statute. See Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456, 464, 101 S.Ct. 715, 724, 66 L.Ed.2d 659 (1981); Vance v. Bradley, 440 U.S. 93, 110-11, 99 S.Ct. 939, 949-50, 59 L.Ed.2d 171 (1979); Retail Merchants Ass’n v. Handy Dan Hardware, Inc., 696 S.W.2d 44, 54-55 (Tex.App.—Houston [1st Dist.] 1985, no writ).
The court holds Rivero is estopped from challenging the act because he has accepted temporary benefits. I disagree. He should be able to accept the initial round of temporary benefits and challenge the next levels of impairment and supplemental benefits as unconstitutional. Neither Rivero nor any other plaintiff attacks the statute’s system of temporary benefits, which seem to be much more beneficent than the old statute and the common law.
Though plaintiff Garcia has not yet been injured, he faces the decision whether to try to preserve his common-law rights by quitting his job and taking on new employment, or staying with his existing job and possibly losing his common-law rights. I think this gives him standing to challenge the opt-out provisions as they apply to workers employed by subscribing employers before the act’s effective date.3 Because Garcia has not been injured, I think he lacks standing to challenge any other provision of the act.
The union plaintiffs should not have standing to challenge a statute’s constitutionality without alleging that even one of their members has suffered injury. I do not interpret the cases cited by the majority to hold that a union may challenge any statute’s constitutionality by simply alleging that some of its many members may one day be affected.
Because Rivero and Garcia have standing to challenge the heart of the act, I agree it is proper for us to consider its constitutionality.
II. Constitutionality of the Act.
A. AMA Guides.
Under certain portions of the act, benefits are determined by ratings based on the American Medical Association’s Guides concerning physical impairment instead of lost earning capacity. The court’s argument for invalidating the use of the AMA Guides goes essentially like this: (1) the legislature had only two real goals, which were to increase benefits and to decrease costs; all other goals (such as efficiency, objectivity, predictability, uniformity, and consistency) are just subspecies of these two, and it does not really matter whether the act achieves these latter goals. (2) The use of an impairment system (focusing on physical impairment to the body) instead of a disability system (focusing on loss of earning capacity) does not increase benefits and therefore faffs to achieve one of the legislature’s two “primary” goals. (3) Use of the AMA Guides is unconstitutional, says the court, because “The pure impairment-based system is not an adequate or reasonable substitute for workers’ common law negligence actions.... [A] system that does not adequately compensate work*119ers for the loss of their common law rights is not rational.” “[T]he legislature has sacrificed its goal of providing increased benefits to injured workers in order to achieve these other goals [efficiency, consistency, objectivity, predictability, uniform treatment]. In doing so, it has failed to provide workers an adequate substitute for their common law rights.”
In reaching these conclusions, the court has relied on the evidence offered by those attacking the statute and has not even mentioned much of the evidence supporting the legislature’s choice of this statutory method of achieving its goals and reforming the law.
1. Goals of the 1989 act. The court canvasses the many statements of legislative intent, which show that the legislature had several goals in enacting this statute. The court identifies the various goals stated in the act and the legislative history: (1) adjudicating claims more efficiently (one legislator spoke of streamlining the delivery of benefits); (2) increasing objectivity, predictability, uniformity, and consistency in claim assessment (that is, similarly-situated employees should receive similar benefits; benefits should not vary with race or gender, or with different venue or lawyer skill); (3) increasing benefits; (4) containing and controlling litigation costs; and (5) containing rising rates. Concerning the last two goals, several legislators expressed the desire to reduce “transaction costs.”
The court refers to and documents all these goals and then says two are “primary”: increasing benefits and decreasing costs. Having redefined consistency, predictability, objectivity, uniformity, and efficiency to mean only decreasing costs, the opinion then reasons that the AMA Guides, being impairment-oriented and not oriented to assessing disability, do not increase benefits. Because the act does not achieve one of its two main goals, says the court, it follows that the guidelines violate the constitution.
The key flaw in this reasoning is the elimination of the goals of consistency, uniformity, objectivity, predictability, and streamlining procedure. Having collapsed those goals into decreasing costs, the court then equates increasing benefits and decreasing costs as the overriding goals, and is able to reason that the AMA Guides do not achieve the legislature’s purpose. But consistency, uniformity, predictability, and objectivity are themselves laudable goals that are not necessarily linked to lowering costs or increasing benefits.
The record supports the legislature’s concern that the old system produced inconsistent results in similarly-situated cases; the old system rested on subjective evaluations of cases. One goal of equal justice under law is the equal treatment of similarly-situated persons. That is a valid goal — indeed, a worthy goal — which the legislature was entitled to pursue.
Another flaw in the court’s analysis is the apparent assumption that a statute must meet all its goals. On the contrary, if a statute rationally furthers any of its several purposes, it satisfies the rational-basis test. See Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456, 465, 101 S.Ct. 715, 724, 66 L.Ed.2d 659 (1981); Vance v. Bradley, 440 U.S. 93, 97, 99 S.Ct. 939, 943, 59 L.Ed.2d 171 (1979). The authorities cited by the court do not convince me that Texas has a much stricter equal protection standard than the federal rational-basis standard in a case such as this, which does not involve a suspect classification or fundamental right.
The act is rationally related to the legislature’s goals of increasing objectivity and consistency and streamlining the process. I grant that the statute, like all statutes (and judicial decisions), may not be perfect. Of course it is too soon to tell whether premiums and litigation costs will decrease, because the statute has not been given a chance. “Whether in fact the Act will promote [one of several goals] is not the question: the Equal Protection Clause is satisfied by our conclusion that the [legislature] could rationally have decided ” that it might. Minnesota v. Clover Leaf Creamery Co., 449 U.S. at 466, 101 S.Ct. at 725 (emphasis in original).
The court mentions that some people would be better off under the old statute or the common law. But that is true of every workers’ compensation system. It is true of *120the old Texas statute; under the old statute some workers fared better and some worse than they would have fared under common-law rules. On this point the evidence shows that the legislature knew that in many workers’ compensation cases there is no employer negligence or other liability, which, means that such workers would receive no compensation at all under common-law rules.
The court’s analysis means that whenever a statute attempts to strike a balance among conflicting goals, a court may void the statute because it does not achieve one of the goals. But this analysis ignores the fact that when a statute seeks to strike a balance between goals that pull in different directions, it is impossible to achieve all of them.
The use of the AMA Guides is rationally related to the goals of consistency, predictability, efficiency, objectivity, and uniform treatment of similarly-situated workers. Only by unfairly characterizing the act’s goals does the court conclude it is unconstitutional.
2. Impairment versus disability. The crux of the court’s opinion is its holding that the 1989 law does not allow adjustment for individualized factors relating to an employee’s loss of wage-earning capacity; instead the act focuses on impairment to the body. In essence, the court says it is unconstitutional to have an impairment system (which focuses on damage to the body, or physical loss) and not a disability system (which focuses on inability to work, or wage loss). The court says it is improper for a legislature to compensate primarily for physical impairment; the constitution’s open-courts provision requires that workers’ compensation statutes focus on loss of earning capacity.
The court’s reasoning is this: The act is an impairment system, which focuses on injury to the body, not on loss of earning capacity; one of the act’s two primary goals is to increase benefits; the act’s impairment system does not rationally further its goal of increasing benefits because it does not adequately compensate for lost earning capacity; thus it violates the constitution.
As I have argued in the preceding section, this analysis is faulty from the beginning because it rests on a misstatement of the act’s goals. The court mentions that impairment is only part of the whole system, but it then condemns the statute as being essentially an impairment statute.
In truth, the statute uses a mix of approaches: (1) Temporary benefits. These are assessed by looking at disability, not impairment. They last until the worker has reached maximum recovery or until 104 weeks have passed, whichever occurs sooner. § 4.23. The temporary benefit ordinarily begins within seven days of injury, and the maximum benefit is raised from $252 under the old act to $438 (a 74 percent increase). (2) Impairment benefits. After temporary benefits end, the employee may receive additional benefits based on his impairment and wage level. § 4.26. (3) Supplemental benefits. Those workers whose impairment exceeds 15 percent are given supplemental long-term benefits based on impairment and wage loss. Here the legislature simply decided that more seriously injured workers could get supplementary benefits and less seriously injured workers could not.
With these three tiers of compensation, the statute provides a mix of benefits based on wage loss, physical impairment, and medical expenses. The same is true of the statutes in many other states. The court errs in condemning this law as nothing more than an impairment statute.
In my view, there is nothing irrational or unconstitutional about using impairment as part of a workers’ compensation system instead of using a disability approach entirely. Perhaps we as legislators would have preferred to emphasize wage loss more and physical impairment less. But that is a policy difference. It does not rise to the level of a constitutional violation.
The old statute’s specific-injury scheme is for the most part an impairment system, but no one has seriously suggested that it is unconstitutional. Yet under the court’s analysis, the old law would also be unconstitutional because under today’s decision impairment systems cannot be valid. That speaks volumes about how far today’s decision departs from the mainstream.
*121The court is aware that any rationale for condemning the 1989 law which also would doom the old law cannot be sound. Having held that impairment systems are unconstitutional, the court tries to show that the old law’s specific-injury approach was not an impairment system. To be precise, the court recognizes that if parts of the old law were impairment-based, then the old law’s specific-injury scheme would also be unconstitutional, because under today’s decision impairment-based compensation systems are unconstitutional. The court therefore argues that under the old law a worker with only a specific injury could nevertheless recover general-injury benefits. The court summarizes this part of its argument as follows: “Thus, even under the article 8306, § 12 schedule of injuries, the worker could seek to prove to a fact-finder that the injury was more severe than the scheduled recovery allowed by proof of how the injury affected his or her earning capacity.” With the utmost respect, I must say this is incorrect and shows a disturbing failure to grasp a fundamental feature of the old workers’ compensation law.
The specific-injury set-up of the old law was essentially an impairment system, not a disability system. That is, it focused on physical harm to certain members of the body, not overall harm in doing a job and earning wages. The supreme court summarized this well-settled principle of the specific-injury system in these words:
When an injury has been sustained by a particular member of the body for which the Workmen’s Compensation Act provides a specific measure of compensation [i.e., a specific injury], the liability of the insurance carrier is limited to the statutory amount, even though the loss of or injury to that particular member actually results in total and permanent incapacity of the employee to work, [citations of three supreme court cases omitted].
Texas Employers Ins. Ass’n v. Wilson, 522 S.W.2d 192, 194 (Tex.1975) (emphasis added). Thus, under the old law, even if a specific injury totally and permanently disabled a worker from working, he could receive only the scheduled benefits (for example, 200 weeks for loss of a leg below the knee, 60 weeks for loss of a thumb, etc). Article 8306, § 12 of the repealed old law contains an extensive list of specific injuries. These scheduled benefits were multiplied by a percentage of the worker’s wage rate to determine his net recovery.
The Wilson court went on to say that in certain circumstances a specific injury case could be expanded into a general-injury case, in which the employee might recover for disability beyond the scheduled benefits for the particular injured member:
An injured employee, however, is not precluded from the [sic] recovering for total incapacity if he alleges and proves that the injury to the particular member also [1] extended to and affected other portions of his body or [2] has impaired his general health to such an extent as to totally and permanently incapacitate him. [citations of three supreme court cases omitted].
522 S.W.2d at 194. The fact remains that if a specific injury did not extend to and affect the body generally or impair the employee’s general health, the employee had only a specific-injury case, and he was limited to the scheduled benefits. It was not sufficient to show that the specific injury caused total disability; the evidence had to show that the injury’s affect on the body generally or the impairment of general health caused total disability. That is, the evidence had to show that beyond the specific injury there was an impairment to the body generally. Without such evidence, the scheduled benefits were limited according to what part of the body was injured, even if there was a much greater effect on the employee’s earning capacity.
It is true that under the old law disability, or inability to work, could be considered in assessing the extensiveness of loss of use of a specific member. In other words, in considering whether a particular member was partially lost or totally lost, a jury could consider either the physical harm done to it (its diminished usefulness as a member of the body) or the loss of utility in employment caused by the injury. See Travelers Ins. Co. v. Seabolt, 361 S.W.2d 204 (Tex.1962); 2 State Bar of Texas, Texas PatteRN JURY CHARGES PJC 25.05 (1989). But even if there was total loss of the specific member, or total *122impairment of it, or the injury to it caused total disability, the employee could recover only the limited, scheduled benefits. He could not recover for all his lost earning capacity. To put it differently, injuries to specific members were compensated according to what member of the body was injured (i.e., an impairment system), not according to the amount of disability the injury caused (i.e., a disability system). A totally disabling loss (or loss of use) of a specific member was compensated at a fixed scheduled rate under old article 8306, § 12. This was a physical impairment system, though the benefits varied with the employee’s wage rate, as they do under the 1989 act.
Unless we are prepared to say that the old law’s specific injury set-up is unconstitutional, how can we say that the 1989 law’s impairment provisions — used when calculating benefits beyond the temporary period — are unconstitutional? The court does not answer. Its rationale for striking down the 1989 law would also invalidate the old law’s specific-injury provisions, which says something about the soundness of the rationale.
3. Disregard of evidence supporting statute’s reasonableness. The court correctly says that courts do not defer to a trial court’s findings of fact concerning the reasonableness of legislation. Appellate courts defer to a trial court’s finding of adjudicative facts (facts concerning private issues, such as negligence) but defer to the legislature’s findings on legislative facts (facts underlying policy choices). A lone trial court does not have the same discretion to determine the reasonableness of the legislature’s goals as it has in finding the facts in ordinary private litigation.
Nevertheless, much of the court’s discussion of the act’s goals seems to defer to the trial court’s findings instead of to those of the legislature. The court has stressed the evidence against the reasonableness of the statute and downgraded the evidence supporting it, as though we were simply reviewing an ordinary judgment in which we give deference to the trial court’s findings. That is an erroneous approach. When reviewing the constitutionality of a statute, we give deference to the legislature’s implied findings, not those of the trial court. See Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456, 464, 470, 101 S.Ct. 715, 724, 727, 66 L.Ed.2d 659 (1981) (“States are not required to convince the courts of the correctness of their legislative judgments.... it is not the function of the courts to substitute their evaluation of legislative facts for that of the legislature”); Vance v. Bradley, 440 U.S. 93, 110-12, 99 S.Ct. 939, 949-50, 59 L.Ed.2d 171 (1979); Retail Merchants Ass’n v. Handy Dan Hardware, Inc., 696 S.W.2d 44, 54-55 (Tex. App.—Houston [1st Dist.] 1985, no writ).
Legislation is presumed to be constitutional and the burden is on the one attacking it to show unconstitutionality. Spring Branch Indep. Sch. Dist. v. Stamos, 695 S.W.2d 556, 558 (Tex.1985); Sax v. Votteler, 648 S.W.2d 661, 664 (Tex.1983); Texas State Bd. of Barber Exam’rs v. Beaumont Barber College, Inc., 454 S.W.2d 729, 732 (Tex.1970); Smith v. Davis, 426 S.W.2d 827, 831 (Tex.1968); Texas Nat’l Guard Armory Bd. v. McCraw, 132 Tex. 613, 126 S.W.2d 627, 634 (1939). Thus, we judges at all levels do not decide whether the legislative judgment is a good one, or whether we agree with it personally. And appellate courts do not simply ask whether there was some evidence to support the trial judge’s findings in this case. Instead we determine whether the forces that lost the legislative vote have demonstrated that the legislative judgment was beyond the pale.
The court purports to give proper deference to the legislature’s right to make judgments, but it then proceeds to credit the testimony of witnesses (and the findings of the trial court) which differ from the evidence supporting the legislature. The opinion goes on for page after page detailing testimony from those who testified against the statute. The court highlights evidence from four witnesses against the use of the AMA Guides without mentioning one argument in favor of them. The court’s recognition of arguments in support of the guidelines is found in this one sentence: “The defendants cite medical testimony, some from plaintiffs witnesses, indicating that the Guides are the most accurate evaluation of medical impairment available.” This is the *123work of a court hell-bent on striking down the act, not a court dispassionately reviewing a statute from a coordinate branch of government to see if it is rationally related to valid goals.
Because we should defer to the legislature’s decision about the need for this legislation and not the trial court’s, the court is incorrect to cite and give weight to evidence criticizing the AMA Guides without fairly giving weight to the evidence supporting their use. For example, fifteen other states have adopted the guidelines by statute in their workers’ compensation systems, and twenty-one others use them in determining impairment. By giving the impression that Texas has gone off the deep end and stands alone in using the AMA Guides, the court has not given proper deference to the legislature’s judgment, which has considerable factual support.
To begin with, the Guides promote predictability, consistency, and uniformity by using more objective methods of measuring injury. Those should be goals in any rational adjudication system.
In addition, there was evidence supporting the AMA Guides from several doctors. Three doctors termed the Guides “state of the art” and several agreed that there is no better written study or text for determining impairment. An expert for the plaintiffs (Dr. George Smith) admitted that it is proper to use the AMA Guides to determine the extent and degree of impairment. There was evidence that the Guides are the best impairment evaluation available. Courts are not at liberty to decide that a reasonable legislature should have believed other witnesses instead of these.
The old Texas act was the nation’s fifth most expensive, while providing benefits at the tenth or fifteenth lowest level in the nation. Because of high premiums employers were “going bare” — choosing not to have insurance coverage and taking their chances with the common-law system. Insurers were abandoning the Texas market because of high losses.
The court has completely ignored this situation and also the evidence before the legislature that most injuries on the job do not involve employer negligence. The act would give most or many of those employees a remedy that the common law would not give them. Perhaps the trial court did not credit this evidence. But the legislature was entitled to consider it and conclude that the act strikes a sensible balance: some workers give up large tort recoveries, while many others (who would recover nothing in their tort lawsuits) obtain a modest but predictable recovery.
In sum, I disagree with the court’s invalidation of the AMA Guides, which rests on (1) a narrow, incomplete statement of the act’s goals, (2) an erroneous condemnation of the act as an impairment system, even though the same analysis would also condemn the old law’s specific-injury features, and (3) disregard of the evidence that supports the legislature’s enactment. I would sustain the legislature’s right to use the AMA Guides as it did.
B. Fifteen PERCENT Threshold.
As stated in section 11(A)(2), the statute authorizes three sequences of benefits. Temporary benefits are received for 104 weeks or until the employee has reached maximum recovery, whichever event occurs first. When these temporary benefits terminate, an employee may receive impairment benefits. Afterward, the employee may receive supplemental benefits if his impairment exceeds 15 percent. The court strikes down this 15 percent threshold for supplementary benefits because (1) it is “an unreasonable classification” of workers who have the 15 percent impairment and those who do not, and (2) it creates an “irrebuttable presumption” that workers below the threshold do not need supplemental benefits.
The court reasons that many workers with disabling injuries will not satisfy the 15 percent impairment threshold and therefore will not receive supplemental benefits. The court also argues that there is no basis for picking the figure fifteen instead of some other number. It calls this part of the statute “draconian.”
Concerning the selection of 15 percent rather than some other number, Dr. Peter *124Barth testified that 15 percent was a sensible cutoff line because impairments below 15 percent are generally not very serious. In addition, the act allows doctors to round up to the nearest five percent, which would mean that a twelve and one-half percent impairment could be rounded to fifteen, qualifying the worker for additional benefits. The court does not mention this evidence or say why a court is justified in rejecting the legislature’s acceptance of it.
Any threshold or other classification will be somewhat over-inclusive and somewhat under-inclusive. If the legislature had drawn the line at fourteen percent, or ten percent, that would change the numbers of people on each side of the line; but there would still be some who would “improperly” be denied supplemental benefits and others who would “improperly” receive them. Justice Douglas once observed for the Court that “every line drawn by a legislature leaves some out that might well have been included.” Village of Belle Terre v. Boraas, 416 U.S. 1, 8, 94 S.Ct. 1536, 1540, 39 L.Ed.2d 797 (1974). That is inevitable if there is to be line-drawing.4 Nevertheless, the court says, “Defendants offered no explanation of the source of the 15 percent figure. Witnesses who were directly involved in the legislative process leading up to the Act had no idea where this number came from.”
In effect, the court has said that as a matter of constitutional law each workers’ compensation case must be evaluated subjectively, ad hoc, case-by-case without using objective standards. The legislature thought otherwise, and nothing in the constitution denies it that power.
C. Opt-Out Provision.
Under § 3.08 of the act, employees waive their common-law rights of action against subscribing employers unless they give the employer written notice within five days of beginning their employment. Section 3.08 simply carries forward a similar provision in the old law. No one suggests it is unconstitutional to put the burden on workers to preserve their common-law rights in writing.
But the court voids the provision that denies old workers a new chance to opt out because its “classification” of pre- and post-1992 employees is “not rationally related to the act’s purpose of providing greater benefits to workers.” That holding completely misses the mark. Section 3.08 is not a substantive provision but a procedural one. It makes no sense to strike down procedural-retroactivity provisions because they do not serve one of the act’s several purposes.
The court’s opt-out holding skirts a more fundamental question: on what basis can the court invalidate this statute as it might apply to employees who do not opt out but choose its provisions instead of the common law? To put it differently, why do any of the plaintiffs have standing to attack this law as it might apply to some future worker who waives his common-law rights by failing to preserve them in writing within five days of his employment date?
As time goes by there will be more and more employees who come under the act’s provisions, having waived the right to preserve their common-law rights. Without doubt, there will be workers who waive their bill-of-rights objections to the 1989 act. Sub-*125jeet to very few exceptions, persons may waive statutory and constitutional rights. See Little v. State, 758 S.W.2d 551, 563 (Tex. Crim.App.), cert. denied, 488 U.S. 934, 109 S.Ct. 328, 102 L.Ed.2d 346 (1988); Wayne R. LaFAVE & JEROLD H. ISRAEL, CRIMINAL PROCEDURE §§ 7.3(d), 8.10(e), 10.2, 11.3, 15.1(d), 20.6, 21.1(h), 26.5(c) (1984). Litigants may, for example, waive their Miranda rights, their right to grand jury indictment, and their right to trial by jury (by guilty plea, acquiescence in nonjury trial, and by voluntary binding arbitration). By consent, they may waive their objection to an otherwise unconstitutional search and seizure. Most constitutional rights may be waived by failure to preserve them at the proper time. If persons may waive important rights in criminal cases, they may certainly waive their right to have the common law apply to their civil lawsuits.
The court has stricken this law because it violates the open courts, equal protection, and due course of law provisions of the Texas Bill of Rights. But individuals may waive those protections. In particular, they may waive their right to litigate work-related injury suits at common law by not preserving those rights within five days of beginning employment.
Those workers who waive their right to opt out of this statute may not make the complaints this court has sustained. As time goes by there will be more and more workers who began their jobs after January 1, 1991. The act can constitutionally apply to them because nothing in the constitution prevents them from waiving their common-law rights. Workers may opt out of the common-law tort system in the same way that litigants generally may opt out of the court system by agreeing to binding arbitration. See, e.g., Texas General Arbitration Act, Tex.Rev.Civ. Stat.Ann. arts. 224 et seq. (Vernon 1973 & Supp.1993); L.H. Lacy Co. v. City of Lubbock, 559 S.W.2d 348 (Tex.1977); Brazoria County v. Knutson, 142 Tex. 172, 176 S.W.2d 740, 743 (1943).
Even though the court has held the statute unconstitutional, that holding should not apply to those workers who give up their right to complain about it. As to those workers who do not acquiesce in the new law, the old law will still apply. But the court should permit the new act to remain operative as to those workers who do not preserve their right to litigate under the common law — that is, those workers who begin employment on or after January 1, 1991 and do not give written notice under § 3.08.
The court says that no one has raised this issue. That is true, but the court must deal with it because we must decide how to write our judgment. No plaintiff in this case has standing to urge that this statute is unconstitutional as to persons who waive their common-law rights and acquiesce in the statute. I would state expressly that the law remains in place and applies to workers hired after January 1, 1991 who do not preserve their common-law rights in writing.
D. Right to JURY Trial.
In holding that the act violates the Texas Constitution’s jury trial guarantees, the court has quoted but failed to follow Middleton v. Texas Power & Light Co., 108 Tex. 96, 185 S.W. 556, 559 (1916), aff'd, 249 U.S. 152, 39 S.Ct. 227, 63 L.Ed. 527 (1919). The Middleton court rejected a similar attack on the original statute because the old act allowed litigants to appeal to district court and have a jury trial under the substantive rules of the statute:
The Act authorizes appeals from the decisions of the Board to the courts, where a jury trial of the matters in dispute, under the law as embodied in the Act, may be had.
Middleton, 185 S.W. at 562 (emphasis added). The court in Middleton said this was an adequate jury trial.
When all the legal veneer is peeled away, the court today has simply held that the act improperly prevents juries from applying traditional common-law rules in workers’ compensation cases. The court says, “There is no escape from the mechanical application of the Guides and the arbitrary 15 percent threshold.” The act “repudiat[es] historical disability considerations by its reliance on the Guides.”
*126I will agree that if the substantive rules of the act (such as use of the AMA Guides) are constitutionally invalid, and workers have a constitutional right to litigate under common-law rules, then it follows that the act may not require juries to apply the statute. But if the act’s substantive rules of recovery are valid, then surely the legislature acted constitutionally when it required that courts and juries apply them faithfully when cases are reviewed in court.
The court has not honored what seems to me a truism: if the substantive rules of recovery are valid, a law requiring courts and juries to apply those rules to the facts is also valid and does not violate jury trial guarantees. After all, in certain cases juries must follow the law of negligence per se instead of common-law negligence. Pursuant to statute, juries may not find a plaintiff negligent for failing to wear a seat belt. In DTPA cases juries find whether a defendant violated the laundry list, which is different from the common law.
Jury trials under the old act, of course, did not give the jury free rein in deciding the issues without regard to the act’s substantive rules. On the contrary, courts and juries applied the old act’s rules (including its specific-injury impairment provisions), which varied from the common law. The rules of procedure have always required courts to instruct juries about the substantive elements that must be proved to establish a ground of recovery or defense. See Tex. R.Civ.P. 277. In fact it would violate due process to let a jury make findings that deny a litigant of life, liberty, or property without a finding and evidence that the substantive elements of the claim had been established. See Jackson v. Virginia, 443 U.S. 307, 314, 99 S.Ct. 2781, 2786, 61 L.Ed.2d 560 (1979).
The court criticizes the act because juries are not allowed to consider cases de novo. Instead, they are limited to the issues (and usually the evidence) presented to the commission; the jury is told of the appeals panel’s decision; and the administrative record is admissible in court. Another way to look at these procedures is to say that the act strengthens the administrative process and makes it significant and not just a meaningless prelude to litigation. And concerning the weight that must be given to a designated doctor’s opinions in a jury trial, surely it was proper for the legislature to try to minimize the use of hired-gun, dueling doctors.
I dissent from the court’s holding that the act violates the constitution’s jury trial guarantees separately and apart from the validity of the substantive rules.
E. Hybrid Judicial Review.
The court sustains appellees’ cross-point and holds that a statute may not provide for different kinds of review — e.g., substantial evidence review and de novo review — in the same case. The opinion says flatly, “Hybrid review is impermissible.” I disagree with that reading of the authorities, which hold only that to have contradictory types of review of the same issue is impermissible. A workers’ compensation case can involve several distinct issues. This statute permits judicial review of the commission’s decisions, and simply permits courts to engage in substantial-evidence review of some issues and de novo review of others.5 There is nothing wrong with providing for different kinds of judicial review of different issues.
The court cites two supreme court cases. See Southwestern Bell Tel. Co. v. Public Util. Comm’n, 571 S.W.2d 503 (Tex.1978); Southern Canal Co. v. State Bd. of Water Eng’rs, 159 Tex. 227, 318 S.W.2d 619 (1958). But each of those cases involved judicial review of one issue. In Southwestern Bell the issue was whether publicly mandated rates were confiscatory. In Southern Canal the issue was whether the board’s order was reasonable.
In Southern Canal one part of the controlling statute directed courts to try the ease de novo; another section directed the court to determine the reasonableness of an order under the substantial-evidence rule. The two kinds of judicial review are utterly ineon-*127sistent with each other and the court found the statute “so inharmonious and conflicting as to render it impossible of execution.” 818 S.W.2d at 624. Southwestern Bell presented a similar conflict. There the court interpreted two statutes, concluding that each mandated a different kind of review of the same issue, confiscation. The court struck the provisions of one statute because it was impossible for a trial court to use contradictory types of review of the same issue.
There is no indication in either opinion that it is unconstitutional to have one kind of review for one issue and another kind of review for a second issue. It is true that the twelve-page opinion in Southwestern Bell used the phrase “in the same ease” several times. But the most cursory reading of the opinion shows that the case involved review of one issue and the court condemned the use of contradictory standards for reviewing that lone issue.
F. ATTORNEYS’ FEES.
The court invalidates the act’s attorneys’ fees provisions on the following reasoning: the attorney for a worker may recover hourly fees but in no event more than 25 percent of the recovery; the worker’s recovery will usually be small, which means the attorneys’ fee will also be small; there is no comparable ceiling on defense attorneys’ fees; some plaintiffs’ attorneys testified that it would not be economical for them to handle workers’ compensation cases under this fee system; this provision is therefore unconstitutional because “it is arbitrary and irrational to discourage legal representation for only one side while doing nothing to prohibit the other side from obtaining representation.” The court also says this provision is “not rationally related to the statutory purpose of increased benefits.”
I disagree with this reasoning for several reasons. First of all, it is rational for the legislature to protect workers by limiting the amount of the recovery that they can contract away for attorneys’ fees. The old act also has a 25 percent cap on attorneys’ fees. Insurers do not need comparable protection; they can take care of themselves. It would, of course, be unworkable to limit a defense counsel’s fee by linking it to the employee s recovery; that would create a conflict of interest by giving defense counsel an incentive to increase his fee by increasing the award his client has to pay. Apparently the court’s position is that it is arbitrary and irrational to protect individuals from excessive attorneys’ fees while not protecting insurers in the same way. If the court is saying that plaintiff and defense fees must be treated identically, shouldn’t it tell us how it could be done?
The legislature had evidence before it — not mentioned by the court — that lawyers received yearly fees of some $400,000,000 from the workers’ compensation system and that only 40 percent of the total amount paid in claims went to workers. The legislature acted rationally in seeking to reduce the amount of system costs siphoned off by attorneys’ fees and to maximize the proportion of the recovery kept by the worker. How can it be termed unconstitutional to require that attorneys’ fees be assessed on an hourly basis?
The court’s unstated assumption is that workers will recover a greater net award with an attorney. But there was evidence before the legislature that under the old law workers who had attorneys netted an average of $7500 while those who did not use attorneys netted an average of $8500 (remarks of Senator Leedom). On what authority does this appellate court refuse to defer to the legislature’s right to consider that evidence?
Second, the court fails to note that the commission (or court) must approve any attorneys’ fee paid by an insurer. See § 4.091. And only in a footnote does the court mention § 4.28(0(2), which makes the carrier pay the worker’s attorneys’ fees if it wrongfully disputes his claim for supplemental benefits. But the worker does not pay defense fees if a claim is wrongfully brought. Third, the legislature established an ombudsman program to assist unrepresented workers. § 5.41(b).
In striking down this provision, the court has given no deference whatsoever to the legislature. It has opened itself up to the criticism that the judiciary has protected law*128yers (on both sides of the docket) earning $400,000,000 a year in fees.
In addition, the court’s reasoning would probably invalidate the attorneys’ fee provision of the old act, which limited the employee’s attorneys’ fee to 25 percent but did not limit fees for defense attorneys. It is beyond me how the court can hold that the attorneys’ fee provisions are hostile to workers, especially when the old law had essentially the same provisions. The law may not be attractive to lawyers who already have a good law practice, but that does not make it unconstitutional. It is also true that the law limits lawyer recovery of fees disproportionate to the time expended, but surely that was within the legislature’s power.
The notion that lawyers will not represent workers under the 1989 law is nonsense. Of course, some of the successful lawyers might not, because they make healthy fees in other kinds of cases. But considering the great numbers of lawyers turned out yearly by our law schools, it is preposterous to say that few lawyers would take a workers’ compensation case for an hourly fee capped at 25 percent of the recovery. Even if under the 1989 act attorneys would earn only a fraction of the previous $400,000,000, the fees would surely attract sufficient legal talent into the workers’ compensation system.
We should state plainly what has happened here. The legislature said that lawyers should not receive more than 25 percent of the worker’s net recovery. And if the worker’s recovery is large in comparison to the lawyer’s time expended, the lawyer should be paid only for time spent, not a straight 25 percent. In other words, the legislature limited the amount of money a lawyer can take from his client in fees. Under the 1989 act, lawyers as a group will not earn the same $400,000,000 they earned in previous years. Brushing aside the legislature’s evidence that under the old law workers netted more without lawyers than with them, the court sides with lawyers and voids the law. In my view, the Texas Constitution does not deny the legislature the power to protect individuals in this way. Cf. Walters v. National Ass’n of Radiation Survivors, 473 U.S. 305, 105 S.Ct. 3180, 87 L.Ed.2d 220 (1985) (rejecting federal constitutional challenge to strict limit on attorneys’ fees in veteran-benefits eases).
G. Severability.
Because I would uphold the entire statute as being within the legislature’s authority, I reach the issue of severability only because the court does. The act contains this sever-ability clause:
If any provision of this Act or its application to any person or circumstance is held invalid, the invalidity does not affect other provisions or applications of this Act that can be given effect without the invalid provision or application, and to this end the provisions of this Act are declared to be severable.
Texas Workers’ Compensation Act, 71st Leg., 2d C.S., ch. 1, § 17.17, 1989 Tex.Gen. Laws 1, 122 (not codified).
The court says that under Rose v. Doctors Hospital, 801 S.W.2d 841, 844-45 (Tex.1990), the test is whether (1) the legislature would not have passed the valid parts of the statute without the invalid parts, and (2) the remainder of the statute can stand by itself and operate independently of the severed part. I do not agree that we ask the first question; the severability clause itself establishes that the legislature would have passed the statute without the stricken portions. The first Rose question is not pertinent when there is a severability clause, and I do not interpret Rose to deviate from prior law and hold otherwise. See Southwestern Bell Tel. Co. v. Public Util. Comm’n, 571 S.W.2d 503, 512 (Tex.1978); Eades v. Drake, 160 Tex. 381, 332 S.W.2d 553, 557 (1960); Jordan v. Crudgington, 149 Tex. 237, 231 S.W.2d 641, 646-47 (1950).
The severability clause itself states that we must make an inquiry essentially the same as the second Rose standard; the clause requires us to determine whether the remainder of the act “can be given effect without the invalid provision or application.” The court concludes that the remainder is not severable. Its reasoning is as follows: we have struck down the use of the AMA Guides, the 15 percent threshold for supplemental benefits, the opt-out provision, the *129jury trial rules, so-called hybrid judicial review, and the attorneys’ fee provisions. With so much of the act gone, especially the important AMA Guides and 15 percent threshold, the act is now unworkable and the legislature would not have passed it in this form.
This reasoning fails because the court has been unwilling to give the legislature’s fallback position a chance. The statute says that if the AMA Guides are held invalid the commission shall by rule “adopt objective impairment guidelines similar to the guidelines published by the American Medical Association.” Texas Workers’ Compensation Act, 71st Leg., 2d C.S., ch. 1, § 17.171, 1989 Tex.Gen.Laws 1, 122 (not codified). I would allow the commission to establish such guidelines. The new guidelines would obviously meet the court’s objection that the AMA Guides are out of print, copies are hard to find, and they are being used for unintended purposes. Why will the court not even give the commission a chance to satisfy the court’s other objections to the use of impairment guidelines?
With new, more flexible guidelines in place, the court’s objections to the jury trial and attorneys’ fees provisions would vanish; those objections rested primarily on the notion that the underlying guidelines were too stingy and inflexible. The opt-out provision has nothing to do with how the act operates and therefore nothing to do with severability. Concerning hybrid judicial review, we should follow the supreme court’s example in Southwestern Bell Telephone Co. v. Public Utility Commission, 571 S.W.2d 508 (Tex.1978): sever the de novo and substantial evidence review provisions and allow one or the other to apply.
Under this approach, with only the 15 percent threshold provision invalid, the court should uphold the remainder of the act, which is severable under § 17.17 of the act and the Rose test.
Ours is not the first court to grasp for itself a policy decision that belongs to another institution of government and to substitute its judgment for that of the legislature. Today’s opinion has an unmistakable, though discredited, intellectual parentage: the old court’s futile and arrogant efforts to prevent the people, acting through legislative institutions, from dealing with economic problems during the first third of this century. Attorney General Robert Jackson, who later sat on the Court, entitled his book about that episode in our history The Struggle for Judicial Supremacy (1941). Four of the greatest justices in our history (Holmes, Brandéis, Stone, and Cardozo) consistently dissented from the doctrine of judicial supremacy in economic matters. Not one United States Supreme Court Justice since 1941 has advocated or practiced judicial supremacy over the nation’s economic affairs. Both the old court and the modern court agreed that legislatures may enact workers’ compensation statutes that totally change the common law unless the statutes are arbitrary and irrational. See Usery v. Turner Elkhorn Mining Co., 428 U.S. 1,15, 96 S.Ct. 2882, 2892, 49 L.Ed.2d 752 (1976); New York Central R.R. Co. v. White, 243 U.S. 188, 202-204, 37 S.Ct. 247, 252-53, 61 L.Ed. 667 (1917).
The old court used the doctrine of substantive due process and a narrow reading of the scope of Congress’s enumerated powers to curtail the people’s efforts at self-government. Today’s court uses the open courts provision of the Texas Constitution to prevent the legislature from reforming court-made law. The court also invokes substantive due process. It says in section III(C), “In contrast to the federal constitution, substantive due process remains a vital doctrine under the Texas Constitution.” Of course, federal precedents are not binding on Texas judges when we interpret the Texas Constitution. See Davenport v. Garcia, 834 S.W.2d 4 (Tex.1992); Heitman v. State, 815 S.W.2d 681 (Tex.Crim.App.1991). But we should learn from, and not repeat, the disastrous federal experience of the old court’s vetoing legislation when the constitution did not really require it.
At the height of the old court’s emasculation of the New Deal, Stone, Brandéis, and Cardozo protested:
The power of courts to declare a statute unconstitutional is subject to two guiding principles of decision which ought never to be absent from judicial consciousness. One is that courts are concerned only with the power to enact statutes, not with their *130wisdom. The other is that while unconstitutional exercise of power by the executive and legislative branches of the government is subject to judicial restraint, the only check upon our own exercise of power is our own sense of self-restraint. For the removal of unwise laws from the statute books appeal lies, not to the courts, but to the ballot and to the processes of democratic government.
Courts are not the only agency of government that must be assumed to have capacity to govern.
United States v. Butler, 297 U.S. 1, 78-79, 87, 56 S.Ct. 312, 325, 329, 80 L.Ed. 477 (1936) (Stone, Brandéis, & Cardozo, JJ., dissenting) (emphasis added).
We must uphold economic legislation unless it clearly violates individual rights or is outside the bounds of legislative authority set by the constitution. Like the legislature, we are duty-bound to stay within our constitutional role. And when we the courts do not stay within the constitutional bounds that limit our authority, there is no one to correct us. We forfeit much of our right to be respected as fair enforcers of the legal rules when we ignore the rules that limit our own power and set aside the decisions of two coordinate branches of government on an issue the constitution committed to them.
In conclusion, I observe that the expansive constitutional doctrine the court employs today must be applied in future cases, and we need to think about where this decision may lead. “One test of the validity of a legal doctrine is the extent and scope with which it may be safely applied.” State ex rel. Edwards v. Reyna, 160 Tex. 404, 333 S.W.2d 832, 838 (1960).
Would today’s majority seriously entertain a constitutional challenge to the wrongful death statute or the Deceptive Trade Practices Act on the ground that they substantially changed the common law? Both statutes drastically changed the common-law rights of defendants without providing a substitute of any kind. And surely the court would agree that the legislature was within its rights in abolishing the common-law actions for alienation of affections and criminal conversation without providing any kind of substitute.6 How can the legislature’s actions in all these instances be upheld under today’s decision?7 This question alone shows how far wrong the court has gone today.
I respectfully dissent from the court’s decision holding the workers’ compensation act of 1989 unconstitutional.
BUTTS and RICKHOFF, JJ., join this dissenting opinion.. ”[N]o one has a vested interest in the rules, themselves, of the common law; and it is within the power of the Legislature to change them or entirely repeal them [citations omitted].” Middleton v. Texas Power & Light Co., 108 Tex. 96, 185 S.W. 556, 559 (1916). The court qualified ' this statement by saying that a legislature could not make a party liable without proof that it breached a legal duty, but the legislature could eliminate an employer’s defenses. Id. The court then made similar statements about the employee’s loss of his right to bring suit in reliance on common-law causes of action. The court agreed the legislature could not take away a vested right of action that had accrued before its passage, id. at 560, but said no one has a right to preserve the common-law rules that might apply to a future injury:
That which is withdrawn from the employee is merely his right of action against the employer, as determined by the rules of the common law, in the event of his future injury. This is nothing more or less than a denial to him by the Legislature of certain rules of the common law for the future determination of the employer's liability to him for personal injuries incurred in the latter’s service, and, in the plan of compensation provided, the substitution by the Legislature of another law governing such liability and providing a different remedy. The question is: Was the Legislature without the power to thus completely change the law upon the subject? This inquiry has no concern in the wisdom of the change; it takes no account of the reason for it; it is limited to the naked question of the Legislature's power.
That the Legislature possessed the power, must be conceded, unless it be true that the employee is protected by the Constitution in the continuance of the rules of the common law for his benefit in the determination of the employer’s liability for such injuries as those with which the Act deals. That no one has a vested right in the continuance of present laws in relation to a particular subject, is a fundamental proposition; it is not open to challenge. The laws may be changed by the Legislature so long as they do not destroy or prevent an adequate enforcement of vested rights. There cannot be a vested right, or a property right, in a mere rule of law.
185 S.W. at 560 (emphasis added). The court observed that the legislature may change com*115mon-law defenses as well as common-law rights of action.
If it may change defensive common law rules, may it not also change a common law rule of liability? The power of the Legislature cannot exist in the one instance and not in the other.
We rest the decision of this question upon what seems to us is the evident proposition that no one has any vested or property interest in the rules of the common law, and therefore no one is deprived of a constitutional right by their change through legislative enactment....
[The constitution] has not undertaken to preserve inviolate the rules of the common law. That system of rules to the extent that we are governed by it was adopted by the Legislature and the same authority may alter it. Id. at 561 (emphasis added).
.These terms are explained in section 11(A)(2) of this dissent.
.The opt-out provision is discussed in section 11(C) of this dissent.
. The Court has often quoted with approval Justice Holmes’s explanation of the necessity and inevitability of legislative line-drawing:
When a legal distinction is determined, as no one doubts that it may be, between night and day, childhood and maturity, or any other extremes, a point has to be fixed or a line has to be drawn, or gradually picked out by successive decisions, to mark where the change takes place. Looked at by itself without regard to the necessity behind it the line or point seems arbitrary. It might as well or nearly as well be a little more to one side or the other. But when it is seen that a line or point there must be, and that there is no mathematical or logical way of fixing it precisely, the decision of the Legislature must be accepted unless we can say that it is very wide of any reasonable mark.” Louisville Gas & Elec. Co. v. Coleman, 277 U.S. 32, 41, 48 S.Ct. 423, 426, 72 L.Ed. 770 (1928) (Holmes, J., dissenting).
See, e.g., Schweiker v. Wilson, 450 U.S. 221, 238 n. 23, 101 S.Ct. 1074, 1085 n. 23, 67 L.Ed.2d 186 (1981); New York City Transit Auth. v. Beazer, 440 U.S. 568, 593 n. 41, 99 S.Ct. 1355, 1370 n. 41, 59 L.Ed.2d 587 (1979); Buckley v. Valeo, 424 U.S. 1, 83 n. 111, 96 S.Ct. 612, 665 n. 111, 46 L.Ed.2d 659 (1976); Village of Belle Terre v. Boraas, 416 U.S. 1, 8 n. 5, 94 S.Ct. 1536, 1540 n. 5, 39 L.Ed.2d 797 (1974).
. The act mandates trial de novo, using specified procedures, for issues of “compensability or eligibility for or the amount of income or death benefits." § 6.62. Judicial review of all other issues is governed by the substantial evidence rule. § 6.64.
. See Felsenthal v. McMillan, 493 S.W.2d 729 (Tex. 1973) (criminal conversation is part of Texas common law); Turner v. Turner, 385 S.W.2d 230 (Tex.1964) (alienation of affections); TexFam. Code Ann. § 4.05 (Vernon 1993) (abolishing action for criminal conversation); id. § 4.06 (abolishing action for alienation of affections).
. A hostile reviewing court could even find unconstitutional the legislature's modification of the common-law rule that contributory negligence absolutely bars a negligence suit. The legislature abolished that rule and adopted comparative negligence in its place. See Tex.Civ Prac & Rem.Code Ann. §§ 33.001 et seq. (Vernon Supp. 1993). Without giving defendants anything like an “adequate substitute" in return, that statute took away a right that the common law gave to defendants. Did the legislature exceed its power in abolishing contributory negligence? I think not, but it might be a close question if the analysis of today’s decision is faithfully applied.