Full opinion text
OPINION REEVES, Chief Justice. In this declaratory judgment action, the trial court declared the 1989 Workers’ Compensation Act (the Act) unconstitutional. We are called upon in this appeal to review that decision. Before we reach the constitutional issues, we must decide whether a justi-ciable controversy exists. We must also determine whether plaintiffs’ suit against the state defendants is barred by sovereign immunity. We find that a justiciable controversy exists at least as to some of the plaintiffs, and that the suit is not barred by sovereign immunity. We further hold that the Act is unconstitutional. Plaintiffs filed suit in Maverick County on November 30, 1990 seeking declaratory and injunctive relief. The Act took effect January 1, 1991. Defendants are Eagle Pass Auto Electric, the Texas Workers’ Compensation Commission, and George Chapman in his capacity as executive director of the commission. The Texas Association of Compensation Consumers, Inc., Klinck Globe, Inc., Klinck Drug Store, Inc., and La Esquina were added to the suit as intervenors on the side of the defendants. Following a temporary injunction hearing in December, 1990, the trial court granted temporary injunctive relief against defendants on the ground that certain provisions of the Act were unconstitutional. The merits were tried without a jury. The court signed the final judgment on May 22, 1991, declaring large portions of the Act unconstitutional. The court found that the unconstitutional portions could not be severed from the Act in its entirety, and accordingly declared the entire Act unconstitutional. Findings of fact and conclusions of law were filed. Defendants sought to perfect a direct appeal to the supreme court, but the supreme court dismissed the appeal for want of jurisdiction. Defendants then perfected their appeal to this court. I. Standing Defendants’ initial argument is that none of the plaintiffs have standing because none have suffered an injury under the Act. They argue, therefore, that the trial court’s opinion is advisory and that that court, and this one, lack jurisdiction of this suit. It is fundamental that a court has no jurisdiction to render an advisory opinion on a controversy that is not yet ripe, or to decide a case on speculative, hypothetical, or contingent fact situations. Camarena, v. Texas Employment Comm’n, 754 S.W.2d 149, 151 (Tex.1988). Standing requires some interest peculiar to the person individually and not as a member of the general public. Hunt v. Bass, 664 S.W.2d 323, 324 (Tex. 1984). As an aspect of justiciability, the standing question is whether the plaintiff has such a personal stake in the outcome of the controversy as to warrant his invocation of the court’s jurisdiction and to justify the exercise of the court’s remedial powers on his behalf. Warth v. Seldin, 422 U.S. 490, 498-99, 95 S.Ct. 2197, 2205, 45 L.Ed.2d 343 (1975). The purpose of a declaratory judgment “is to settle and to afford relief from uncertainty and insecurity with respect to rights, status, and other legal relations; and it is to be' liberally construed and administered.” Tex. Civ.Prac. & Rem.Code Ann. § 37.002(b) (Vernon 1986). A person whose rights, status, or other legal relations are affected by a statute “may have determined any question of construction or validity arising under the statute ... and obtain a declaration of rights, status, or other legal relations thereunder.” Tex. Civ.Prac. & Rem.Code Ann. § 37.004(a) (Vernon 1986). A declaratory judgment “is an instrumentality to be wielded in the interest of preventative justice and its scope should be kept wide and liberal, and should not be hedged about by technicalities.” Cobb v. Harrington, 144 Tex. 360, 190 S.W.2d 709, 713 (1945). It “is intended as a speedy and effective remedy for the determination of the rights of the parties when a real controversy has arisen and even before the wrong has actually been committed.” Id. The essential difference between the declaratory judgment and the purely advisory opinion lies in the fact that the former is a binding adjudication of the contested rights of the litigants, though unaccompanied by consequential relief; whereas, the latter is merely the opinion of the judges or court, adjudicates nothing, and is binding on no one. Douglas Oil Co. v. State, 81 S.W.2d 1064, 1077 (Tex.Civ.App.—Austin 1935), rev’d on other grounds sub nom. Federal Royalty Co. v. State, 128 Tex. 324, 98 S.W.2d 993 (1936). As a prerequisite to the declaratory judgment process, there must be a real controversy between the parties, which will be actually determined by the judicial declaration sought. Board of Water Eng’rs v. City of San Antonio, 155 Tex. Ill, 283 S.W.2d 722, 724 (1955). Chief Justice Hughes set out what is perhaps the classic definition of “controversy” in Aetna Life Ins. Co. v. Haworth: A justiciable controversy is thus distinguished from a difference or dispute of a hypothetical or abstract character; from one that is academic or moot. The controversy must be definite and concrete, touching the legal relations of parties having adverse legal interests. It must be a real and substantial controversy admitting of specific relief through a decree of a conclusive character, as distinguished from an opinion advising what the law would be upon a hypothetical state of facts. Where there is such a concrete case admitting of an immediate and definitive determination of the legal rights of the parties in an adversary proceeding upon the facts alleged, the judicial function may be appropriately exercised although the adjudication of the rights of the litigants may not require the award of process or the payment of damages. 300 U.S. 227, 240-41, 57 S.Ct. 461, 464, 81 L.Ed. 617 (1936) (citations omitted). [A]t an irreducible minimum, Art. Ill [of the United States Constitution] requires the party who invokes the court’s authority to “show that he personally has suffered some actual or threatened injury as a result of the putatively illegal conduct of the defendant,” and that the injury “fairly can be traced to the challenged action” and “is likely to be redressed by a favorable decision.” Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 472, 102 S.Ct. 752, 758, 70 L.Ed.2d 700 (1982) (citations omitted). With these rules in mind, we will review the situation of each plaintiff in turn. A. Garda Hector Garcia, Jr. is an employee of Eagle Pass Auto Electric in Eagle Pass, Texas. Eagle Pass was a subscriber under the former Act, and Garcia is currently covered by the company’s workers’ compensation carrier. Garcia testified that he does not wish to be covered by the Act. He is not claiming a compensable injury. The court found that Garcia “will be immediately and irreparably harmed on and after January 1, 1991 by losing his rights to workers’ compensation benefit coverage under the old workers’ compensation law; by not having similar rights under the [new] Act; and by having no right of election except by resigning his job with Defendant Eagle Pass.” (citations omitted). Defendants assert that Garcia has failed to establish standing because he has not yet been injured. They indicate he may have a complaint regarding coverage under the Act “if and when he is injured.” Because we find that as an employee working for a subscribing employer that elected to continue purchasing workers’ compensation coverage after January 1, 1991, Garcia has no right to elect common law rights and remedies, he has been injured in this respect by the provisions of the Act. We hold that Garcia has standing to bring this challenge to the constitutionality of the Act. B. Fuller John Ira Fuller was employed by General Motors in Arlington, Texas, although at the time of the hearings the plant was temporarily shut down. He is a member of the United Auto Workers union, a union affiliated with the Texas AFL-CIO. He suffers from an occupational disease to his knees caused by repetitious physical trauma. He alleged that under the terms of the Act, the period during which he must report his injury and file a claim for compensation has already elapsed, and he is ineligible to recover any benefits under the Act, even though his occupational disease will eventually disable him. Fuller had surgery on both knees in 1983 or 1984. His doctor told him that he could no longer perform his job, but Fuller said he was refused medical retirement by General Motors and had to return to work. His medical condition will continue to be aggravated by the type of work he does. He filed a claim on the injury under the former Act and settled it in 1986. He has approximately four years of future medical benefits remaining under the settlement. The court found that under the Act the period during which Fuller “must file a claim for compensation has already elapsed, and he will be potentially ineligible to recover any benefits when his repetitive trauma disables him.” The court found that Fuller’s injury will “in all likelihood disable him from performing his ordinary tasks as a worker for General Motors” and that he “probably will have no right to obtain medical benefits, disability benefits, or impairment benefits under the Act.” Defendants attack Fuller’s standing by asserting that Fuller settled his injury claim under the former Act, and that he was not employed at the time of the hearings. They argue that any claim of future injury due to the deterioration of his physical condition is hypothetical or contingent. We find that Fuller lacks standing. While the times to file notice of his occupational disease and to file a claim for compensation have elapsed, the Act excuses untimely filings under certain circumstances. §§ 5.02-.03. Fuller’s complaint is premature. It may be that if he files a claim under the Act, his tardiness will be excused under these sections and his future claim for compensation will be considered on its merits. His complaint will only become ripe if his failures to timely notify and to timely file a claim result in the denial of benefits. C. Rivero Osvaldo S. Rivero is a resident of Val Verde County, Texas who suffered an on-the-job injury on January 2, 1991. He makes less than $8.50 per hour. His employer is a subscriber to workers’ compensation insurance, and Rivero filed a compensation claim. He began receiving a weekly benefit check higher than his salary while working, and greater than his benefits would have been under the former Act. Rivero alleged that the Act discriminates against him because of his hourly wage, the nature of his injury, his nationality, and the nature of his employment. He also alleged that the Act unreasonably denies him resort to his common law remedies and to a meaningful jury trial. The court found that although. Rivero’s injury “may prove to be permanently disabling ... it is highly doubtful that, given the operation of the Impairment Guidelines under the [new] Act, that Plaintiff Rivero will receive significant benefits or ever become eligible for supplemental income benefits under the [new] Act.” The court also found that “a significant number of workers, including potentially the Plaintiff Rivero, who sustain disabling injuries will have less that 15% impairment based on the Guides ...” Defendants attack Rivero’s standing by arguing that he is estopped from challenging the constitutionality of the Act because he has accepted benefits under that act. We agree. One cannot retain the benefits of an act while attacking the constitutionality of one or more of its important provisions. Fahey v. Mallonee, 332 U.S. 245, 255, 67 S.Ct. 1552, 1557, 91 L.Ed. 2030 (1947); Walker v. Employees Retirement Sys., 753 S.W.2d 796, 799 (Tex.App.—Austin 1988, writ denied). D. Union Plaintiffs We will discuss the union plaintiffs together. The Texas AFL-CIO is a voluntary association consisting of approximately 800 affiliated local unions and approximately 215,000 affiliated individual union members. It is organized to promote the rights of working people through collective bargaining and other lawful activities. Its members are employed in a wide variety of occupations including industrial, office, agricultural, and building trades. Some members are permanent employees, and some are seasonal. A large number of the affiliated union members are covered by workers’ compensation insurance. Joe D. Gunn, the Texas AFL-CIO’s president, testified that one of its purposes is to serve as a voice for workers in general. The AFL-CIO has traditionally participated in lawsuits that affect workers’ rights in Texas, and it also lobbies the legislature on behalf of Texas workers. The quality and character of the workers’ compensation act is an issue of paramount concern to the AFL-CIO. Gunn asserted that the Act threatens to reduce substantially the legal rights and protections of the Texas AFL-CIO’s employees and of members and employees represented by affiliated unions. The court found that the AFL-CIO has standing to bring this suit on behalf of its members because its members would otherwise have standing to sue in their own right, the interests the AFL-CIO seeks to protect by this suit are germane to its purpose, and neither the claim asserted nor the relief requested require the participation of individual members in this lawsuit inasmuch as the Act threatens to deprive the AFL-CIO’s membership of protections secured under the Texas constitution and threatens irreparable harm to the workers who are represented by the AFL-CIO. The court also found that the AFL-CIO has standing to maintain this action in its capacity as an employer that is a subscriber under the former Act. Texas Legal Services Union, Local No. 2 (“Local 2”), ⅛ a labor union whose 73 to 75 members are employed in the Texas Rural Legal Aid (TRLA) offices as attorneys, paralegals, legal secretaries, and receptionists. Local 2 is affiliated with the Texas AFL-CIO. Local 2 is organized to promote the rights of working people through collective bargaining and other lawful activities, and it negotiates collective bargaining contracts with TRLA. The current collective bargaining agreement requires TRLA to provide workers’ compensation coverage for its employees and a wage continuation supplement to employees’ workers’ compensation payments. It brought this action on behalf of itself and on behalf of its members who are directly and immediately affected by the Act. The trial court found that Local 2 has standing to sue on behalf of its members. The court also found that Local 2 has standing as a party to a collective bargaining contract that is impaired or potentially impaired by the Act. Defendants argue that standing is lacking because the unions have presented no “evidence that any of its members have suffered a compensable injury after the Act took effect. This state has recognized a labor union’s standing to sue on behalf of its members. In El Paso Bldg. & Constr. Trades Council v. Texas Highway Comm’n, 231 S.W.2d 533 (Tex.Civ.App.—Austin), rev’d on other grounds, 149 Tex. 457, 234 S.W.2d 857 (1950), a labor union brought suit against the Highway Commission, its individual members, and the state highway engineer seeking a declaratory judgment that the defendants’ prevailing wage rate determination for El Paso County was substandard, unlawful, and void. The court held that the union, seeking to be the mouthpiece for union labor in the El Paso locality, had a sufficient interest in the subject matter to enable it to institute and maintain the proceedings. Id. at 536. In Texas State AFL-CIO v. Brown, 378 S.W.2d 917 (Tex.Civ.App.—Austin 1964, writ refd n.r.e.), the union complained that the employers’ representative on the Texas Employment Commission used his official position to secure and to attempt to secure passage of amendments to the Texas Unemployment Compensation Act detrimental to the interests of working men and women who are or might become claimants for benefits under the act. The union brought an action for declaratory judgment as an employer covered by the Unemployment Compensation Act, and as a “ ‘mouthpiece’ of the hundreds of thousands of working men and women in the State of Texas who belong to labor organizations.” Id. at 919. While rejecting the union’s claim of standing as an employer, Id. at 921, the court did assume jurisdiction to rule on the issues presented by the union. Id. at 922. See also International Union, UAW v. Johnson Controls, Inc., 813 S.W.2d 558 (Tex.App.—Dallas 1991, writ denied) (employee and his union, on behalf of other employees similarly situated, challenged an employer’s practice as violative of the workers’ compensation act; union’s standing was not questioned). Even in the absence of injury to itself, an association may have standing solely as the representative of its members. Our supreme court in Texas Ass’n of Business v. Texas Air Control Bd., 852 S.W.2d 440, 446 (1993) has recently adopted the test for associational standing set out by the Supreme Court in International Union, UAW v. Brock, 477 U.S. 274, 281, 106 S.Ct. 2523, 2528, 91 L.Ed.2d 228 (1986); and Hunt v. Washington State Apple Advertising Comm’n, 432 U.S. 333, 343, 97 S.Ct. 2434, 2441, 53 L.Ed.2d 383 (1977). [A]n association has standing to bring suit on behalf of its members when: (a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization’s purpose; and (c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit. Brock, 477 U.S. at 282, 106 S.Ct. at 2523; Hunt, 432 U.S. at 343, 97 S.Ct. at 244. These are the precise findings made by the trial court in this case. As part of the first prong of the three-prong test set out in Brock and Hunt, the association must allege that its members, or any one of them, are suffering immediate or threatened injury as a result of the challenged action of the kind that would make a justiciable case if the members had brought suit in their own right. Warth, 422 U.S. at 511, 95 S.Ct. at 2211-12. See also Schweiker v. Gray Panthers, 453 U.S. 34, 40 n. 8, 101 S.Ct. 2633,. 2638 n. 8, 69 L.Ed.2d 460 (1981) (organization dedicated to helping elderly had standing to challenge Medicaid regulations that “adversely affected” some of its members). A substantial risk of injury is sufficient. Texas Ass’n of Business, 852 S.W.2d at 447. See also Pennell v. City of San Jose, 485 U.S. 1, 108 S.Ct. 849, 99 L.Ed.2d 1 (1988) (association of landlords had standing based on pleadings that members would likely be harmed by rent ordinance). The Supreme Court noted in Pennell that “[t]he likelihood of enforcement [of the ordinance], with the concomitant probability that a landlord’s rent will be reduced below what he or she would otherwise be able to obtain in the absence of the Ordinance, is a sufficient threat of actual injury to satisfy Art. Ill’s requirement that ‘[a] plaintiff who challenges a statute must demonstrate a realistic danger of sustaining a direct injury as a result of the statute’s operation or enforcement.’ ” Id. at 8, 108 S.Ct. at 855 (quoting Babbitt v. Farm Workers, 442 U.S. 289, 298, 99 S.Ct. 2301, 2308, 60 L.Ed.2d 895 (1979)). Likewise, it is not speculative to conclude that the Act will be enforced against the members of the associated unions of the AFL-CIO and of Local 2. If the Act is unconstitutional in the respects urged by the unions, its application to union workers by the state defendants will surely injure them by the reduction of the amount of their benefits, the denial of their right to a jury trial, and so on. We are not dealing with a hypothetical act. It is not an act under contemplation that may or may not be enacted in the future by the Legislature. It is in effect. It applies to the members of Local 2 and to many of the workers represented by the AFL-CIO and its affiliated unions. Despite the fact that the union plaintiffs have not named a union worker who has filed a claim under the Act, we conclude that there is a sufficient threat of actual injury to the unions’ membership to satisfy the justiciable issue requirement. Texas Ass’n of Business, 852 S.W.2d at 447 (some of association’s members had been assessed the administrative penalties the association challenges, and other members remain at a substantial risk of penalty). An injury shared by a large number of people is nonetheless an injury. See Center for Auto Safety v. National Highway Traffic Safety Admin., 793 F.2d 1322, 1331 (D.C.Cir.1986). It is undisputed that the unions satisfy the second and third prongs of the Hunt and Brock test. The unions are seeking to protect their members’ interests in the quality and character of the workers’ compensation act. They alleged that the Act threatens to reduce substantially the legal rights and protections of their members. These interests are germane to the unions’ purposes, which include promoting the rights of workers. In addition, there is no reason to require individual members of the unions to participate in this ease. Individual participation is required when there are conflicts of interest within the organization, when there is need for specific factual information to illuminate the basis for the decision, or when there are damage determinations to be made. 13 C. Wright, A. Miller & E. Cooper, Federal Practice AND Procedure § 3531.9 (1984). “If in the proper ease the association seeks a declaration, injunction, or some other form of prospective relief, it can reasonably be supposed that the remedy, if granted, will inure to the benefit of those members of the association actually injured.” Hunt, 432 U.S. at 343, 97 S.Ct. at 2441 (quoting Warth, 422 U.S. at 515, 95 S.Ct. at 2213). Because we hold that the unions have standing to bring suit on behalf of their members, we need not decide whether they also have standing to bring suit on their own behalves. Garcia, the AFL-CIO, and Local 2 have standing to bring this action. II. Sovereign Immunity We turn now from the parties plaintiff to the parties defendant — to the question of sovereign immunity. The Commission and Chapman, the state defendants, complain that the doctrine of sovereign immunity bars this proceeding against them as postured by plaintiffs. The original basis for the doctrine of sovereign immunity was that the sovereign could not be sued in its own courts without its consent. “The rule is founded undoubtedly upon the old Anglo Saxon maxim, ‘The King can do no wrong,’ a phrase as false in many cases as it is ancient.” Buchanan v. State, 89 S.W.2d 289, 239-40 (Tex.Civ.App.— Amarillo 1935, writ refd). This principle was recognized in Texas as early as 1847. Hosner v. DeYoung, 1 Tex. 764, 769 (1847). Because “the King can do no wrong,” any “wrongdoing” must be the act of the King’s agents. Since the King never authorized his agents to act “wrongfully,” a suit to control such activities is not considered “against” the sovereign itself. This applies to the enforcement of unconstitutional law and acting outside of lawful authority. Smith, Suits Against the State — Differences Between Immunity Against Suit and Immunity From Liability, in State BaR of Texas, Suing and Defending Governmental Entities and OFFICIALS U-3 (July, 1991) (parentheses omitted). Thus it is well settled that one whose rights have been violated by the unlawful action of a state official may bring a suit to remedy or prevent the violation, and that that suit is not a suit against the state requiring legislative or statutory authorization. Director of the Dep’t of Agric. & Env’t v. Printing Indus. Ass’n, 600 S.W.2d 264, 265-66 (Tex.1980); Cobb, 190 S.W.2d at 712. See also Bullock v. Marathon Oil Co., 798 S.W.2d 353, 361 (Tex.App.—Austin 1990, no writ) (suit challenging an agency’s action as being outside the scope of its authority is not suit against the state requiring legislative or statutory authority). Accordingly, a suit seeking a declaratory judgment that the state’s agents are acting pursuant to an unconstitutional law is not an action against the state within the rule of sovereign immunity, Bullock v. Texas Skating Ass’n, 583 S.W.2d 888, 895 (Tex.Civ.App.—Austin 1979, writ refd n.r.e.); Majestic Indus., Inc. v. St. Clair, 537 S.W.2d 297, 300 (Tex.Civ.App.—Austin 1976, writ refd n.r.e.), even though the judgment is binding on the state, American Fed’n of Labor v. Mann, 188 S.W.2d 276, 279-80 (Tex.Civ.App.—Austin 1945, no writ). The Commission and Chapman argue that even if the activities complained of are unauthorized (such as, the enforcement of an unconstitutional law), according to Director the suit may be brought only against the workers’ compensation commissioners individually, who were not made parties to this suit. Significantly, in Director suit was brought against the director of the Department of Agriculture and Environment and others to enjoin that department “and other State agencies_” Director, 600 S.W.2d at 265. No question was raised as to proper defendants. In the present ease, plaintiffs brought their suit against the Commission and its executive director. The state defendants cite Bagg v. University of Texas Medical Branch, 726 S.W.2d 582 (Tex.App. — Houston [14th Dist.] 1987, writ ref d n.r.e.). That case holds only that when one seeks injunctive relief involving the activity of a. state agency, the plaintiff must sue some individual in authority at the agency rather than the agency itself. Id. at 584-85. Yet even Bagg states that traditionally, the individuals in authority sued include the directors of the agencies. Id. at 585 n. 2. The state defendants have cited to us no authority, and we know of none, that states that only commission members, and not the commission’s executive director or the commission itself, must be sued in a declaratory judgment action seeking to establish the unconstitutionality of a state law. In fact, the authority is to the contrary. An example is Edgewood Indep. Sch. Dist. v. Kirby, 777 S.W.2d 391 (Tex.1989), in which the supreme court affirmed a trial court’s declaratory judgment that the public school financing system violates the Texas constitution. The defendants in that suit were the Commissioner of Education, the State Board of Education, other state officials, and a number of school districts. Kirby v. Edgewood Indep. Sch. Dist., 761 S.W.2d 859, 860 n. 1 (Tex. App.—Austin 1988), rev’d, 777 S.W.2d 391 (Tex.1989). While it may make practical sense to bring an injunction suit against specific individuals, the same practicality does not compel the conclusion that an agency may not be a party to a declaratory judgment suit challenging the constitutionality of the law the agency enforces. We conclude that the doctrine of sovereign immunity does not bar this suit against the state defendants. III. Texas Constitution Plaintiffs contend that several features of the Act violate the open courts, due course of law, equal protection, right to jury trial, and impairment of contracts provisions of the Texas Constitution. We will examine the first three of these provisions in order to set out the tests for their violation. In section IV of the opinion, we will then spend some time addressing the specifics of the challenged portions of the Act. In section V we will apply the tests we have articulated for violations of the open courts, due course of law, and equal protection provisions of our constitution to the challenged provisions of the Act to determine whether the Act passes constitutional muster. We will follow that with a discussion of whether the Act has violated the right to trial by jury and the impairment of contracts provision of the Texas Constitution. Closely connected with the jury trial discussion will be an examination of the Act’s provisions relating to attorney involvement and fees. We will also discuss plaintiffs’ cross points — that the Act provides an unconstitutional hybrid method of judicial review, and that it discriminates against low wage and seasonal workers. We will then consider the Act’s severability clause in section VI, and finally, in section VII, we will address the intervenors’ points that certain evidence was erroneously excluded and that leave to file a pleading was erroneously denied. A. Constitutional Construction In assessing the constitutionality of a statute, a strong presumption exists in favor of the statute’s validity. Vinson v. Burgess, 773 S.W.2d 263, 266 (Tex.1989). It is presumed that the legislature has not acted unreasonably or arbitrarily. Smith v. Davis, 426 S.W.2d 827, 831 (Tex.1968). The wisdom and expediency of the law is the legislature’s prerogative, not ours. Id. A party challenging the constitutionality of a statute has the burden of proof to establish its invalidity. Spring Branch Indep. Sch. Dist. v. Stamos, 695 S.W.2d 556, 558 (Tex. 1985), appeal dism’d, 475 U.S. 1001, 106 S.Ct. 1170, 89 L.Ed.2d 290 (1986). Plaintiffs urge us to grant the trial court’s findings of fact and conclusions of law the same level of deference as any finding by the trier of fact. We decline to do so. In reviewing the constitutionality of a legislative act, we are not bound by the findings of the trial court except when they include an evaluation of the credibility of the witnesses. Retail Merchants Ass’n v. Handy Dan Hardware, Inc., 696 S.W.2d 44, 54-55 (Tex.App.—Houston [1st Dist.] 1985, no writ). We must independently review all the evidence. Id. at 55. When reviewing the provisions of our Bill of Rights, the admonition of its final section should be borne in mind: To guard against transgressions of the high powers herein delegated, we declare that everything in this “Bill of Rights” is excepted out of the general powers of government, and shall forever remain inviolate, and all laws contrary thereto, or to the following provisions, shall be void. Tex.Const. art. I, § 29. B. Open Courts The Texas Constitution contains two separate due process provisions, which, although they both guarantee due process, are not coterminous. Nelson v. Krusen, 678 S:W.2d 918, 921 (Tex.1984). Article I, section 19, states: “No citizen of this state shall be deprived of life, liberty, property, privileges or immunities, or in any manner disfranchised, except by the due course of the law of the land.” Article I, section 13 provides, in part: “All courts shall be open, and every person for an injury done him, in his lands, goods, person or reputation, shall have remedy by due course of law.” This last provision, known as the open courts provision, is a due process guarantee. Sax v. Votteler, 648 S.W.2d 661, 664 (Tex.1983). It specifically guarantees that the courts will be open so that individuals may seek a remedy according to due course of law. 1 G. Bra-den, The Constitution of the State of Texas: An Annotated and Comparative Analysis 50 (1977). There is no comparable federal constitutional provision. The open courts guarantee is “embodied in the Magna Carta and has been a part of our constitutional law since our republic.” Lucas v. United States, 757 S.W.2d 687, 690 (Tex. 1988). In order to establish an open courts violation, the litigant must show that the statute restricts a cognizable common law cause of action and that this restriction is unreasonable or arbitrary when balanced against the purpose and basis of the statute. Moreno v. Sterling Drug, Inc., 787 S.W.2d 348, 355 (Tex.1990); Lucas, 757 S.W.2d at 690; Sax, 648 S.W.2d at 666. The legislature has the power to abolish or abridge common law actions, but it must also provide an “adequate substitute” or “reasonable alternative.” Sax, 648 S.W.2d at 667. Accord Moreno, 787 S.W.2d at 355; Lucas, 757 S.W.2d at 690. This substitute is an individualized equivalent rather than a general or societal quid pro quo. Lucas, 757 S.W.2d at 690. “When individual rights guaranteed by the state constitution are involved, an individual rights perspective is used.” LeCroy v. Hanlon, 713 S.W.2d 335, 342 (Tex.1986). C. Due Course of Law Section 19, quoted above, is the traditional due process guarantee. It roughly parallels the due process clauses of the fifth and fourteenth amendments to the United States Constitution. Sax, 648 S.W.2d at 661; 1 G. Braden, supra at 68. It includes both procedural and substantive protection. Tex. Const, art. I, § 19, interpretative commentary. It differs from the fourteenth amendment in two important respects. First, it grants affirmative rights directly to the people. Second, it expands due process protection beyond “life, liberty, or property” to protect privileges, immunities, and any other manner in which citizens may be disenfranchised. Every Texas bill of rights has had a due course of law provision. 1 G. Braden, supra at 67. The Supreme Court has recognized that section 19 may afford significantly broader protection than the federal constitution. City of Mesquite v. Aladdin’s Castle, Inc., 455 U.S. 283, 293, 102 S.Ct. 1070, 1077, 71 L.Ed.2d 152 (1982). In that decision the Supreme Court also pointed out that states are free to read their own constitutions more broadly than they read the federal constitution and to reject its analysis in favor of their own analyses of corresponding constitutional guarantees. Id. The federal courts apply a rational relationship test when fundamental rights or interests are not affected. In such a ease, a statute will be upheld if it bears a rational relationship to a legitimate state interest. See Moore v. City of East Cleveland, 431 U.S. 494, 499-500, 97 S.Ct. 1932, 1935-36, 52 L.Ed.2d 531 (1977). In contrast to the federal constitution, substantive due process remains a vital doctrine under the Texas constitution. See Eggemeyer v. Eggemeyer, 554 S.W.2d 137, 140-41 (Tex.1977). Our supreme court has fashioned a test for the application of section 19 more rigorous than the federal rational basis test. The line where the police power of the state encounters the barrier of substantive due process is not susceptible of exact definition. As a general rule the power is commensurate with, but does not exceed, the duty to provide for the real needs of the people in their health, safety, comfort and convenience as consistently as may be with private property rights. The guarantee of due process does not deprive the state of the right to take private property by the exercise of such power in a proper and lawful manner, but it is essential that the power be used for the purpose of accomplishing, and in a manner appropriate to the accomplishment of, the purposes for which it exists. A large discretion is necessarily vested in the Legislature to determine not only what the interests of the public require, but what measures are necessary for the protection of such interests. If there is room for a fair difference of opinion as to the necessity and reasonableness of a legislative enactment on a subject which lies within the domain of the police power, the courts will not hold it void. State v. Richards, 157 Tex. 166, 301 S.W.2d 597, 602 (1957) (emphasis added) (citations omitted). The test we apply today is a distillation of the Richards test and the tests used in other Texas cases involving section 19. (1) The object of the law must be within the scope of the legislature’s police power; (2) the means used must be appropriate and reasonably necessary to accomplish that object; and (3) the law must not operate in an arbitrary or unjust manner, or be unduly harsh in proportion to the end sought. See Thompson v. Calvert, 489 S.W.2d 95, 99 (Tex. 1972); Wylie v. Hays, 114 Tex. 46, 263 S.W. 563, 565 (1924); City of Houston v. Johnny Frank’s Auto Parts Co., 480 S.W.2d 774, 779 (Tex.Civ.App.—Houston [14th Dist.] 1972, writ refd n.r.e.); Humble Oil & Ref. Co. v. City of Georgetown, 428 S.W.2d 405, 413 (Tex.Civ.App.—Austin 1968, no writ); City of Coleman v. Rhone, 222 S.W.2d 646, 649 (Tex.Civ.App.—Eastland 1949, writ refd). The critical factor in the second and third prongs is reasonableness. Richards, 301 S.W.2d at 602; Humble Oil, 428 S.W.2d at 413; Rhone, 222 S.W.2d at 649. D. Equal Protection The equal protection clause of the Texas Constitution provides: “All free men, when they form a social compact, have equal rights, and no man, or set of men, is entitled to exclusive separate public emoluments, or privileges, but in consideration of public services.” Tex.CoNST. art. I, § 3. This clause should be read in conjunction with the equal rights amendment, which provides: “Equality under the law shall not be denied or abridged because of sex, race, color, creed, or national origin. This amendment is self-operative.” Tex.Const. art. I, § 3a. The test for a section 3 equal protection violation is set out in Whitworth v. Bynum, 699 S.W.2d 194, 197 (Tex.1985). The supreme court, relying on Sullivan v. University Interscholastic League, 616 S.W.2d 170, 172 (Tex.1981), held that the purpose of the statute must be related to a legitimate state interest and the classifications drawn by the statute must be rationally related to the statute’s purpose. Similarly situated individuals must be treated equally under the statutory classification unless there is a rational basis for not doing so. Whitworth, 699 S.W.2d at 197. The statute must not be overbroad or overinclusive, or create unreasonable and irrebuttable presumptions. Id. IV. Discussion of the Act The trial court found that several portions of the Act violated one or more of the constitutional provisions just discussed. It is appropriate at this point to discuss the provisions of the Act called into question. We will not attempt to discuss every particular of the Act. Rather, we will confine our discussion to the two areas in which major changes have occurred and in which the challenged provisions are located: the benefits and adjudication systems. A. Benefits System The Act brings dramatic changes to the system of benefits, creating a multi-tiered scheme of benefits that follow one after the other. 1. Temporary Income Benefits The first tier is designated “temporary income benefits,” which accrue eight days after disability begins until the worker achieves “maximum medical improvement.” § 4.28. Maximum medical improvement is “the point after which further material recovery from or lasting improvement to an injury can no longer reasonably be anticipated, based on reasonable medical probability” or the expiration of 104 weeks from the date income benefits begin to accrue, whichever occurs first. § 1.03(82). “Disability” is defined as “the inability to obtain and retain employment at wages equivalent to the pre-injury wage because of a compensable injury.” § 1.03(16). The Act presumes that every worker has reached maximum medical improvement by the end of the 104th week. The 104-week period for temporary income benefits is the shortest in the nation. Temporary income benefits are 70 percent of the difference between the worker’s average weekly wage before the injury and the worker’s weekly earnings after injury, within the limits of the maximum and minimum weekly benefits. The minimum weekly benefit for all tiers is 15 percent of the state average weekly wage. The maximum weekly benefit for temporary income benefits is 100 percent of the state average weekly wage. These benefits are paid weekly and are similar to the former Act’s temporary disability payments. For workers earning less than $8.50 per hour, temporary income benefits are 75 percent of the difference for the first 26 weeks, and 70 percent thereafter, with the limit that the weekly temporary income benefits cannot be more than 100 percent of the worker’s actual earnings for a year divided by 52. If there is a dispute about whether the worker has achieved maximum medical improvement, the worker must be seen by a “designated doctor.” The designated doctor is picked by agreement of the parties or, if they do not agree, by the Texas Workers’ Compensation Commission. The report of the designated doctor has “presumptive weight.” The commission must base its ruling on this report “unless the great weight of the other medical evidence is to the contrary.” § 4.25. 2. Impairment Income Benefits The next two tiers, impairment income benefits (§ 4.26) and supplemental income benefits (§ 4.28), are designed for longer term impairments. Recovery of benefits in the second two tiers is based solely on the percentage impairment ratings found in the “second printing, dated February, 1989, of the Guides to the Evaluation of Permanent Impairment, third edition, published by the American Medical Association....” (“the Guides”). § 4.24. “All determinations of impairment under this Act, whether before the commission or in court, must be made in accordance with the above-named guide.” Id. Impairment income benefits begin if the worker has impairment after achieving maximum medical improvement. They continue until the earlier of the expiration of 401 weeks from the date of injury, the end of a period computed at the rate of three weeks for each percentage point of impairment (thus, a worker with a 100 percent impairment would receive 300 weeks of impairment income benefits), or the worker’s death. § 4.26(c). Impairment benefits are paid weekly at a rate of 70 percent of the worker’s average weekly wage, subject to a maximum of 70 percent of the state average weekly wage. § 4.26(b). If the impairment rating is disputed, the worker must be seen by a “designated doctor.” A designated doctor is one chosen by agreement of the parties or, if they cannot agree, by the commission. If the designated doctor is one chosen by the parties, the commission must adopt the impairment rating found by this doctor. On the other hand, if the doctor is chosen by the commission, the doctor’s report has “presumptive weight.” The commission’s ruling must be based on the designated doctor’s report “unless the great weight of the other medical evidence is to the contrary, in which case the commission shall adopt the impairment rating of one of the other doctors.” § 4.26(g). The worker can get the impairment income benefits in a lump sum if the worker has. returned to work for at least three months, and is earning at least 80 percent of the worker’s average weekly wage. No other benefits under the Act can be paid in a lump sum. A worker accepting lump-sum benefits cannot get supplemental income benefits. 3. Supplemental Income Benefits Supplemental income benefits are payable to an eligible worker who is no longer eligible for impairment income benefits and can continue until 401 weeks from the date of injury. With the exception of lifetime benefits, which will be discussed below, supplemental income benefits are the only long-term benefits provided by the Act. However, workers who received the maximum duration of temporary benefits (104 weeks) and the maximum duration of impairment income benefits (300 weeks), would not be entitled to supplemental income benefits. § 4.29. The 401-week maximum duration of benefits provided by the Act is the shortest in the nation. To qualify for supplemental income benefits, the worker must meet four criteria: (1) the worker’s impairment rating from the Guides must be 15 percent or more; (2) the worker must not have returned to work or is earning less than 80 percent of the worker’s average weekly wage “as a direct result of the impairment;” (3) the worker has not received a lump sum from the impairment income benefits; and (4) the worker has “in good faith attempted to obtain employment commensurate with the employee’s ability to work.” § 4.28(b). If the worker is not entitled to supplemental benefits for 12 consecutive months, the worker ceases to be entitled to any additional income benefits for the injury. § 4.28(f). Supplemental income benefits are 80 percent of the difference between 80 percent of the worker’s average weekly wage and current earnings, subject to the same maximum and minimum as impairment income benefits. § 4.28(n). Entitlement must be established quarterly by a statement filed by the worker with the insurance carrier. § 4.28(k). Failure to file the statement relieves the carrier of liability for supplemental income benefits for the period during which a statement is not filed. Id. 4. Lifetime Income Benefits and Death Benefits The last two tiers of benefits are “lifetime income benefits” (§ 4.31) and “death benefits” (§ 4.41). Lifetime benefits are 75 percent of the worker’s average weekly wage, not to exceed the maximum weekly benefit limit of 100 percent of the state average weekly wage, except that benefits increase three percent per year regardless of the limit. Lifetime income benefits are paid until the worker’s death for loss of both eyes; both feet; both hands; a foot and a hand; a spinal injury causing paralysis of both arms, both legs, or an arm and a leg; or a skull injury “resulting in incurable insanity or imbecility.” Death benefits are paid at the rate of 75 percent of the worker’s average weekly wage, subject to the maximum weekly benefits limit of 100 percent of the state average weekly wage. They are paid to the legal beneficiaries of a worker who dies from a compensable injury. The duration of death benefits is controlled by section 4.43. B. Adjudication System The Act also makes significant changes in the adjudication system. The former Act’s informal administrative system with trial de novo in the courts has been replaced with a more formal and elaborate system with limited judicial review. The goal, clearly, is to resolve conflicts at the administrative level. 1.Ombudsman Program. §§ 5.41-.42. The Act creates an ombudsman program to assist injured workers and persons claiming death benefits in obtaining benefits. The ombudsmen are employees of the commission. The ombudsmen’s duties are set out in section 5.41(b): Ombudsmen shall meet with or otherwise provide information to injured workers, investigate complaints, and communicate with employers, insurance carriers, and health care providers on behalf of injured workers. An ombudsman shall otherwise assist unrepresented claimants, employers, and other parties to enable them to protect their rights in the workers’ compensation system. At least one specially qualified employee in each office shall be designated an ombudsman, and duties under this chapter shall be that person’s primary responsibility. 2.Benefit Review Conference. §§ 6.11-.15. The first step in the dispute resolution process is the benefit review conference, described by the Act as a “nonadversarial, informal dispute resolution proceeding.” § 6.11. It is presided over by a benefit review officer, an employee of the commission. The review officer tries to settle disputes, informs the parties of their rights, and ensures that the commission’s file contains all medical, wage, and other pertinent information. No formal testimony is taken or recorded, and the conference is not subject to the rules of evidence or procedure. Normally, unless a benefit review conference is held, the parties may not proceed to other administrative hearings. Any issues not raised at the benefit review conference are waived and cannot be presented in subsequent proceedings, both before the commission and the courts, unless the commission determines good cause exists for not raising them or the parties agree that they may be raised. § 6.31(a). Further, issues presented at a previous stage may be waived if not presented at each subsequent stage. §§ 6.42(a)(1), 6.62(b). If the case is not settled, the review officer prepares a written report of all disputed issues with the officer’s recommendations. The review officer has the power to issue an interlocutory order to pay or not to pay benefits. § 6.15(e). The insurance carrier is to be reimbursed from the subsequent injury fund for any overpayments made pursuant to this order. Id. If no agreement has been reached, the parties can either go to arbitration or to a contested case hearing, but not to both. § 6.21(a). 3.Arbitration. §§ 6.21-.28. The parties may agree to go to arbitration. Arbitrators are also employees of the commission who must meet state and federal qualifications. Arbitrators are randomly assigned. Each party may reject one arbitrator. Arbitration is held within 30 days of the arbitrator’s assignment. Testimony is under oath if required by the arbitrator or requested by a party. An electronic recording of the hearing must be made, and stenographic recording is permitted at the expense of the party requesting it. The arbitrator is the judge of the relevance and materiality of the evidence offered, but conformity to the rules of evidence is not required. The arbitrator must enter his or her award within seven days after the last day of the arbitration. The award is a final order of the commission and binding on all parties. An arbitrator’s award can only be vacated if it was procured by corruption, fraud, or misrepresentation; it was arbitrary and capricious; or it was outside the commission’s jurisdiction. The suit to vacate the award must be filed in a court of competent jurisdiction within 30 days of the award or within 30 days of the date the appealing party knew or should have known of a basis for suit, but not later than 12 months after an order denying compensation or after the expiration of the income or death benefit period. If an award is vacated, the ease is sent back to the commission for another arbitration proceeding. 4.Contested Case Hearing. §§ 6.31-.34. If arbitration is not elected, the parties are entitled to a contested ease hearing. The hearing is an administrative trial of the disputed issues in the case. Issues not raised at the benefit review conference may not be considered in a contested case hearing unless the parties consent or the commission finds good cause for failure to raise the issues earlier. When a benefit review conference is scheduled, a contested case hearing is automatically set within 60 days of the conference. § 6.12(b). At the hearing, an electronic recording is made, and a stenographic recording may be made at the requesting party’s expense. The hearing officer presides, swears witnesses, controls the admission of evidence, and is the finder of fact. The officer is the sole judge of the relevance and materiality of the evidence, and of the weight and credibility to be given the evidence. Rules of evidence need not be followed. Discovery is limited to depositions on written questions to any health care provider, depositions of other witnesses as permitted by the hearing officer for good cause shown, and form interrogatories prescribed by the commission. Prior to the hearing the parties shall exchange all medical reports, testifying expert witness reports, medical records, witness statements, the identity and location of any witness known to the parties to have knowledge of relevant facts, and all photographs and documentary evidence that a party intends to offer into evidence. Failure to disclose any evidence known to a party precludes its introduction at a subsequent hearing before the commission or a court unless good cause is shown for the failure to disclose. After the hearing, the hearing officer must issue a written decision that includes findings of fact and conclusions of law, a determination whether benefits are due, and an award of benefits due. The hearing officer shall make a separate, written decision on attorney’s fees. The officer’s decision is final unless appealed to an appeals panel. If appealed, the decision is binding pending appeal. 5.Appeals Panel. §§ 6.41-.45. The purpose of the appeals panel is to review the decisions of contested case hearing officers. A party desiring to appeal the hearing officer’s decision must file a written appeal with the appeals panel within 15 days of the receipt of the decision. The other party has 15 days to file a written response. The request for appeal and response are in the nature of written briefs that either rebut or support the hearing officer’s decision. The appeals panel shall consider only the record developed at the contested case hearing, and the briefs. The panel’s decision must be in writing and issued not later than 30 days after the written response is filed. The decision may affirm the hearing officer’s decision, reverse that decision and render a new one, or reverse that decision and remand no more than one time to the hearing officer for further consideration and development of the evidence. The decision is final in the absence of a timely appeal for judicial review. 6.Judicial Review. §§ 6.61-.64. A party that has exhausted all administrative remedies may seek judicial review of the appeals panel decision by filing suit within 40 days of that decision. Trial is limited to the issues of compensability or eligibility for or the amount of income or death benefits. It is further limited to issues decided by the appeals panel and on which judicial review is sought. The party appealing a particular issue, rather than the claimant as in the former law, has the burden of proof by a preponderance of the evidence on that issue. In contrast with the former Act, the court must tell the jury the decision of the appeals panel on all disputed issues submitted to the jury, and in a trial without a jury, the court must consider the decision of the appeals panel. Evidence of the extent of impairment is limited to the evidence presented to the commission, and the jury must adopt one of the impairment ratings made according to section 4.26. § 6.62(d). The only exception to this rule is when the court, after a hearing, finds a substantial change of the worker’s condition has occurred since the commission proceedings. § 6.62(e). Evidence of a substantial change of condition must be from the same doctors who appeared before the commission, it must be new evidence or evidence that could not have been discovered earlier with due diligence, and it must be evidence that would probably produce a different result. Id. If substantial change of condition is disputed, the designated doctor must verify the change, and again his or her findings are presumed to be correct “unless the preponderance of the other medical evidence [which must come from only the doctors who appeared before the commission] is to the contrary.” § 6.62(f). If, after review of this evidence, the court finds a substantial change of condition, new medical evidence of the extent of impairment is taken. § 6.62(h). This evidence must be from and is limited to the same doctor or doctors who made impairment ratings before the commission. Id. The court’s finding of substantial change in condition may not be disclosed to the jury. § 6.62(i). The fact finder, in its determination of the extent of impairment, must adopt one of the new impairment ratings given by the doctors after the finding of a substantial change of condition. § 6.62(j). Judicial review of issues other than com-pensability or eligibility for or the amount of income or death benefits is governed by the substantial evidence rule, and is conducted in the manner provided for judicial review of a contested case under section 19 of the Administrative Procedure and Texas Register Act. 7. Attorney’s Fees. §§ 4.09-.091. Attorney’s fees must be approved by the commission or a court. They are based on the attorney’s time and expenses as presented by written evidence to the commission or court. The fee is subject to a maximum of 25 percent of the worker’s recovery. The commission or court must consider the following factors in approving an attorney’s fee: (1) the time and labor required, the novelty and difficulty of the questions involved, and the skill required to perform the legal services properly; (2) the fee customarily charged in the locality for similar legal services; (3) the amount involved in the controversy; (4) the benefits to the claimant that the attorney is responsible for securing; and (5) the experience and ability of the attorney performing the services. Defense counsel must also have their fees approved by the commission or the court. The same factors that apply to workers’ lawyers apply to defense lawyers. V. Constitutionality of the Act We now apply the constitutional standards previously discussed to the challenged provisions of the Act. A. A.M.A. Guides The trial court found that the Act’s use of the Guides as a basis for awarding compensation was unconstitutional in at least five respects: (1) the Guides do not include percentage impairment ratings for many disabling injuries, including mental trauma and chronic pain syndrome, which disable thousands of workers annually, thereby depriving those workers of a remedy for their injuries; (2) the legislature’s use of the Guides to determine benefits when they were never intended for such purpose is unreasonable and arbitrary and not reasonably related to any individual or societal interest of the State; (3) the Guides are used to determine the extent of a worker’s medical impairment, which has no relevance to that worker’s ability to obtain and retain employment — in other words, workers can be significantly compromised in their abilities to function in the labor force but have minimal or nonexistent impairment ratings, thus depriving them of their right to compensation as compared to past law and the common law; (4) the impairment ratings used in the Guides have no adequate medical or scientific basis; and (5) “because of the method of evaluation of average weekly wage, and the use of the Guides, the Act will effectively reduce benefits for the majority of Texas Workers.” The court found that the Act’s utilization of the Guides violates the open courts, due course of law, equal protection, and right to jury trial provisions of the Texas Constitution. Jury trial in relation to the Guides will be discussed in subsection “E” below. The Guides are 250 pages of complicated and technical medical material. They were designed to be used by doctors and trained medical personnel. They define impairments to the following bodily systems: extremities; spine and pelvis; nervous system; respiratory system; cardiovascular system; hemato-poietic system; visual system; ear, nose, throat, and related structures; digestive system; urinary and reproductive systems; endocrine system; skin; and mental and behavioral disorders. At the time the Act took effect, the edition of the Guides it specified was no longer in print and had been superseded by a subsequent edition. Doctors Alan L. Engleberg and George Smith, two editors of the Guides, testified at trial. Dr. Engleberg, the chief editor, testified that the Act is unreasonable and arbitrary in the way it utilizes the Guides, that it does not use the Guides fairly, that it was irrational to base a benefit system on the impairment numbers generated by the Guides, and that the use of the Guides mandated by the Act abuses the physician’s role in the process of making disability evaluations. Dr. Smith also testified that the Act utilizes the Guides in an arbitrary manner. He testified that the Guides “state very specifically that the impairment rating number is not to be put into a one-to-one correspondence with disability or any other concept under which money is to be paid.” The Act uses the impairment rating from the Guides as a percentage factor in computing the amount to be paid, a method specifically disapproved by the Guides. Other medical expert testimony echoed those views. Dr. Nortin Marvin Hadler of the University of North Carolina School of Medicine testified that the impairment rating produced by the Guides is not relevant to disability, is unreliable, and is an inadequate measure of the concept of injury. Dr. John Gunn, Fuller’s physician and former orthopedic surgeon for the Dallas Cowboys, testified that the Guides do