Rose v. Doctors Hosp

In Rose v. Doctors Hosp., 801 S.W.2d 841, 844 (Tex. 1990) the Court held that the severability clause in article 4590i enabled the Court to strike unconstitutional portions of the statute, such as the portion found unconstitutional in Lucas, while retaining valid portions. See id. (construing the statute's severability clause, found in Act of Aug. 29, 1977, ch. 817, 41.04). "If, when we strike the statute's application to the common law claims, we are left with something which 'remains complete in itself, and capable of being executed in accordance with the legislative intent, wholly independent of that which was rejected, it must stand.'" Rose, 801 S.W.2d at 845 (quoting Western Union Tel. Co. v. State, 62 Tex. 630, 634 (1884)). Under that test, the Court held that "the application of sections 11.02 and 11.03 to wrongful death claims remains complete in itself, capable of execution in accord with the legislature's intent, and independent of any application to common law claims." Id. (noting also that "the open courts provision does not apply to statutory claims," and that the statute "may be validly applied to all but common law claims"). In Rose v. Doctors Hospital, the Court restated the test for severability: "When, therefore, a part of a statute is unconstitutional, that fact does not authorize the courts to declare the remainder void also, unless all the provisions are connected in subject-matter, dependent on each other, operating together for the same purpose, or otherwise so connected in meaning that it cannot be presumed the legislature would have passed the one without the other. The constitutional and unconstitutional provisions may even be contained in the same section, and yet be perfectly distinct and separable, so that the first may stand though the last fall. The point is not whether they are contained in the same section, for the distribution into sections is purely artificial; but whether they are essentially and inseparably connected in substance. If, when the unconstitutional portion is stricken out, that which remains is complete in itself, and capable of being executed in accordance with the apparent legislative intent, wholly independent of that which was rejected, it must stand." Rose, 801 S.W.2d at 844