66 F.3d 944
Pens. Plan Guide P 23916HEQUITABLE LIFE ASSURANCE SOCIETY OF the UNITED STATES,Interpleader Plaintiff,v.Nancy W. CRYSLER, Defendant-Appellee,Phyllis A. Crysler, Defendant-Appellant.
No. 94-4024.
United States Court of Appeals,Eighth Circuit.
Submitted May 18, 1995.Decided Sept. 29, 1995.

Richard E. Holiman, Little Rock, AR, argued, for appellant.
John Shamburger, Little Rock, AR, argued, for appellee.
Before BOWMAN, MAGILL, and LOKEN, Circuit Judges.
LOKEN, Circuit Judge.

1
This is an interpleader action to determine who is entitled to the proceeds of a life insurance policy governed by the Employee Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C. Secs. 1001 et seq.   The decedent's widow claims as his last designated beneficiary under the policy, while his former wife claims under a divorce decree that allegedly prohibited beneficiary changes.  The district court granted summary judgment to the widow on the ground that the former wife's claim is barred by ERISA's anti-alienation provision, 29 U.S.C. Sec. 1056(d)(1).  Concluding that this provision does not apply to the welfare benefit plan at issue, we remand for further proceedings.

I.

2
Austin Crysler and Phyllis Crysler divorced on March 1, 1983.  Paragraph 13 of the divorce decree provides that Austin "shall maintain [Phyllis] as irrevocable beneficiary on the $35,000 term life insurance policy with Equitable, so long as he is obligated to pay alimony to [Phyllis]."  This term life policy was issued by The Equitable Life Assurance Society ("Equitable") as part of an employee welfare benefit plan maintained by Austin's employer, Mountain States Telephone and Telegraph Company (now part of U.S. West, Inc.).  U.S. West administers the benefit plan.  The policy's summary description states:

3
[Y]ou may change your beneficiary at any time....Your Basic coverage--and Supplementary, if any--is payable to your named beneficiary or beneficiaries in the event of your death from any cause.

4
After the divorce, Austin married Nancy Crysler.  Despite paragraph 13 of the divorce decree, Austin changed the designated beneficiary of his Equitable group life policy several times after 1983.  When Austin died in August 1993, Nancy was the designated primary beneficiary, and U.S. West's Benefit Department sent her a letter to that effect.  Before Equitable distributed the policy proceeds, however, Phyllis advised U.S. West and Equitable of the 1983 divorce decree and demanded payment of Austin's $45,000 "basic" death benefit.

5
Nancy then sued Equitable in Arkansas state court to recover the entire death benefit.  Faced with conflicting claims to the basic benefit,1 Equitable filed this interpleader action in the district court, alleging that the state court had no jurisdiction over Phyllis, a New Mexico resident, and depositing the policy proceeds into court.  The district court accepted jurisdiction, see 28 U.S.C. Sec. 1335, and dismissed Equitable.

6
Phyllis and Nancy then filed cross-motions for summary judgment.  Both conceded that ERISA governs their claims for benefits under the U.S. West benefit plan.  Phyllis argued that ERISA does not expressly resolve this dispute and urged the court to apply federal common law and hold that the divorce decree affords her an enforceable "vested equitable interest" in the policy proceeds.  Nancy argued that the divorce decree is preempted by ERISA, that Phyllis's claim is in any event precluded by ERISA's anti-alienation provision, and therefore that Nancy, as the designated policy beneficiary, must prevail.

7
The district court granted summary judgment to Nancy.  The court reasoned that ERISA's anti-alienation provision applies to welfare benefit plans as well as to pension plans.  Therefore, Austin's plan benefit must be paid to his designated beneficiary unless the divorce decree purporting to affect alienation is a qualified domestic relations order ("QDRO") under 29 U.S.C. Sec. 1056(d)(3)(A).2  Because the Cryslers' divorce decree does not qualify as a QDRO, the court concluded that Nancy must prevail even though the "equities ... lie with Phyllis."   Phyllis appeals, raising issues of law that we of course review de novo.

II.

8
Prior to ERISA, life insurers faced with conflicting claims to death benefits commonly employed the interpleader device to bring the contending claimants to state or federal court, where the claimants' dispute would be resolved under state law, with the insurer playing the passive role of stakeholder.  See generally 20 Appleman, Insurance Law & Practice Secs. 11311-16 (1980).  Many of these disputes grew out of marital divorces.  See Annotation, 31 A.L.R.4th 59 (1984).  The issues were not easy, but the law to be applied was reasonably discernable to attorneys representing insurers and claimants.

9
Unfortunately, ERISA drastically altered this landscape, introducing esoteric legal issues like preemption and antialienation that left many practitioners bewildered.  And federal courts, properly preoccupied with the statutory complexities of ERISA, often seemed to ignore an important task that had been performed, if not perfectly, at least efficiently, under state law--the fair resolution of conflicting, non-frivolous claims to plan benefits.  Congress surely did not intend this confusion.  If it is too late to make ERISA benefit cases analytically simple, our aim is at least to make the analysis more practical and better understood.

10
1.  ERISA's anti-alienation provision does not bar Phyllis's claim.  We deal here with an "employee welfare benefit plan," not an "employee pension benefit plan."  29 U.S.C. Secs. 1002(1), (2)(A).  In many respects, Congress elected to regulate welfare benefit plans less rigorously.  See, e.g., Jensen v. SIPCO, Inc., 38 F.3d 945, 949 (8th Cir.1994), cert. denied, --- U.S. ----, 115 S.Ct. 1428, 131 L.Ed.2d 310 (1995).  The distinction is vital, for in Mackey v. Lanier Collection Agency & Service, Inc., 486 U.S. 825, 836-38, 108 S.Ct. 2182, 2188-90, 100 L.Ed.2d 836 (1988), the Supreme Court held that the anti-alienation provision restricts only alienation of pension plan benefits:

11
ERISA Sec. 206(d)(1) bars (with certain enumerated exceptions) the alienation or assignment of benefits provided for by ERISA pension benefit plans.  29 U.S.C. Sec. 1056(d)(1).  Congress did not enact any similar provision applicable to ERISA welfare benefit plans, such as the one at issue in this case....  In a comprehensive regulatory scheme like ERISA, such omissions are significant....  We therefore conclude that Congress did not intend to preclude state-law attachment of ERISA welfare plan benefits.

12
Because the anti-alienation provision does not apply to welfare plan benefits, Phyllis's divorce decree need not be a QDRO to avoid that provision.  Carland v. Metropolitan Life Insurance Co., 935 F.2d 1114 (10th Cir.), cert. denied, 502 U.S. 1020, 112 S.Ct. 670, 116 L.Ed.2d 761 (1991), on which the district court relied, is not to the contrary.  Carland held that QDROs are exempt from ERISA's general preemption clause, 29 U.S.C. Sec. 1144.  935 F.2d at 1119-20.   The Tenth Circuit did not consider the scope of the anti-alienation provision.

13
2.  Phyllis's claim under the divorce decree is also not barred by ERISA's general preemption clause, which declares that ERISA "shall supersede any and all State laws insofar as they may now or hereafter relate to any employee benefit plan."  29 U.S.C. Sec. 1144(a);  see Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 45-46, 107 S.Ct. 1549, 1551, 95 L.Ed.2d 39 (1987).  ERISA preemption makes the designation of plan beneficiaries and the determination of who is entitled to plan benefits questions of federal law.  But we have rejected the proposition that ERISA entirely preempts the effect of a state-law divorce decree on the rights of a welfare benefit plan's participants and beneficiaries, see Lyman Lumber Co. v. Hill, 877 F.2d 692, 693 (8th Cir.1989), and the Supreme Court laid that proposition to rest in Mackey.   See 486 U.S. at 839, 108 S.Ct. at 2190 ("Congress thought that some courts had erroneously construed [Sec. 1144(a) ] as pre-empting [domestic relations] orders").

14
As Mackey made clear, Congress has not prohibited the assignment or alienation of welfare plan benefits.  Thus, a state law divorce decree effecting or prohibiting such a transfer does not conflict with ERISA.  See Wheaton, 42 F.3d at 1086-87 (Manion, J., concurring).  However, federal law controls whether Phyllis's claim to the policy proceeds will prevail.

15
3.  There is no other ERISA provision that expressly governs this dispute between benefit claimants.  See Mohamed v. Kerr, 53 F.3d 911, 913 (8th Cir.1995);  Krishna v. Colgate Palmolive Co., 7 F.3d 11, 14 (2d Cir.1993) (ERISA is "silent on the matter of which party shall be deemed beneficiary among disputing claimants");  Lyman, 877 F.2d at 693 ("None of ERISA's express provisions addresses the issue presented in this case").  The provision that "a fiduciary shall discharge his duties with respect to a plan ... in accordance with the documents and instruments governing the plan," 29 U.S.C. Sec. 1104(a)(1), is of course important guidance, but it does not prescribe how to resolve conflicting claims that the plan administrator has interpleaded.  In addition, while an insurer such as Equitable has a contractual obligation to pay valid claims, an insurer is typically not acting in a fiduciary capacity when handling benefit claims.  See Kerns v. Benefit Trust Life Ins. Co., 992 F.2d 214, 216 (8th Cir.1993).

16
4.  ERISA expressly provides for judicial review of the denial of or refusal to pay plan benefits.  See 29 U.S.C. Sec. 1132(a)(1)(B).  When an issue in such an action is not expressly governed by ERISA, courts apply federal common law.  They "may look to state law for guidance in developing federal common law, but it is inappropriate to apply state law if it conflicts with ERISA or its underlying policies."  Mohamed, 53 F.3d at 913.

17
5.  In reviewing a plan administrator's benefits decision, a threshold question is whether the plan gives the decision-maker discretionary authority to rule on benefit claims.  If it does, then the plan administrator or insurer must make the initial decision, which the court then reviews under a deferential standard of review.  See Donatelli v. Home Ins. Co., 992 F.2d 763, 765 & n. 2 (8th Cir.1993).  However, as Donatelli illustrates, insurance policies usually do not reserve such discretionary authority to the insurer, in which case the court in an interpleader action such as this may resolve the conflicting benefit claims de novo.3

18
6.  In this case, Equitable filed an interpleader action and deposited Austin's plan benefits into court.  Phyllis and Nancy have not accused Equitable or U.S. West of wrongful conduct such as bad faith denial of a claim.  Equitable has not asked for its costs or attorney's fees and has been dismissed from the case.  In these circumstances, while testimony by U.S. West and Equitable as to how they view the competing claims under the plan documents will be highly relevant,4 the policies and purposes of ERISA are not intensely affected by the determination of whether Phyllis or Nancy is entitled to Austin's plan benefits.  In other words, having reached this point in the ERISA analysis, a trial court can safely analogize its task to that of an interpleader court applying life insurance beneficiary principles under state law.

19
An example may illustrate the importance of state law in this context.  Suppose that, when the district court obtained personal jurisdiction over the competing claimants, Phyllis filed a cross claim alleging that Nancy had tortiously interfered with Phyllis's rights under the divorce decree by inducing Austin to change policy beneficiaries.5  The district court would likely have pendent jurisdiction over this state law claim, and the fact that, if successful, the claim may ultimately be satisfied out of ERISA plan benefits seems a wholly inadequate basis to preempt the claim.  If state law will govern this type of claim, which is asserted directly between interpleaded would-be ERISA beneficiaries, that strongly suggests that state law should provide the dispositive guidance on the antecedent question of which claim to the plan benefits should prevail.  That is why our decisions in Lyman and Mohamed looked favorably upon borrowing state law to resolve claimant disputes.  Accord Brandon v. Travelers Ins. Co., 18 F.3d 1321, 1326 (5th Cir.1994), cert. denied, --- U.S. ----, 115 S.Ct. 732, 130 L.Ed.2d 635 (1995).

20
7.  We discuss the question of applicable law in some detail in part because in this case it may well be more than academic.  Phyllis argues that she should prevail because the divorce decree provides her with a "vested equitable interest" in the insurance proceeds.  But apparently only some States have adopted that doctrine.  See Murphy v. Travelers Ins. Co., 534 F.2d 1155, 1160-61 (5th Cir.1976).  This is an issue of family law outside the realm of federal interest.  See Hisquierdo v. Hisquierdo, 439 U.S. 572, 581, 99 S.Ct. 802, 808, 59 L.Ed.2d 1 (1979).  Thus, we conclude that the federal common law to be applied is (i) a choice-of-state-law issue, and then (ii) an application of the relevant state law.  Those may or may not be difficult inquiries, but they have the advantage of being similar to the inquiries that the claimants' attorneys and the court would make if this Equitable policy were not governed by ERISA.  In our view, once Equitable and U.S. West have protected the interests of ERISA administrators through the shelter of an interpleader procedure, the interests of ERISA beneficiaries are best served by resolving the claimants' dispute under traditional state insurance and family law principles.

21
The judgment of the district court is reversed and the case is remanded to the district court for further proceedings consistent with this opinion.

1
 Before his death, Austin's basic coverage had increased from $35,000 to $45,000.  He had also purchased supplemental coverage providing an additional $68,000 death benefit.  Phyllis's claim under the divorce decree is limited to the $45,000 basic benefit

2
 QDROs were added to the ERISA lexicon by the Retirement Equity Act of 1984.  Our disposition of this case makes it unnecessary to probe the inner workings of a QDRO.  The interested reader should consult Chief Judge Posner's concise discussion in Metropolitan Life Ins. Co. v. Wheaton, 42 F.3d 1080 (7th Cir.1994)

3
 The record on appeal contains only a portion of the U.S. West plan documents so this issue must be addressed on remand

4
 The U.S. West plan administrator testified by deposition that U.S. West had timely notice of Phyllis's claim under the divorce decree because the plan does not require notice of a claim at the time of death as long as notice is received prior to payment of the proceeds.  The administrator expressed no opinion as to which claimant is entitled to the policy proceeds, explaining that U.S. West and Equitable simply file interpleader actions whenever they receive competing, non-frivolous claims

5
 This is purely hypothetical.  Given the ambiguous divorce decree here at issue, and the fact that Austin changed policy beneficiaries before the change that designated Nancy as primary beneficiary, we see no basis for the assertion of such a claim on the facts of this case


[Cite as State v. Widener, 2014-Ohio-333.]

                IN THE COURT OF APPEALS FOR MIAMI COUNTY, OHIO

STATE OF OHIO                                          :

        Plaintiff-Appellant                            :       C.A. CASE NO.      2013 CA 29

v.                                                     :       T.C. NO.    20940003

CHAD WIDENER                                           :        (Civil appeal from Common
                                                                Pleas Court, Juvenile Division)

        Defendant-Appellee                             :

                                                       :

                                             ..........

                                             OPINION

                         Rendered on the        31st       day of       January       , 2014.

                                             ..........

MELISSA L. WOOD, Atty. Reg. No. 0089748, Assistant Prosecuting Attorney, Shelby
County, 108 East Poplar Street, Sidney, Ohio 45365
      Attorney for Plaintiff-Appellant

JOSE M. LOPEZ, Atty. Reg. No. 0019580, 18 East Water Street, Troy, Ohio 45373
      Attorney for Defendant-Appellee

                                             ..........

FROELICH, P.J.

                 {¶ 1} The State appeals from a judgment of the Miami County Court of
                                                                               2

Common Pleas, Juvenile Division, which granted Chad Widener’s application to seal the

record of his conviction for contributing to the delinquency of a child.

       {¶ 2}     Widener, a teacher, was accused of having sexually explicit electronic

conversations and sexual contact with a minor student, and he was charged with

importuning. In March 2009, Widener was found guilty in the Juvenile Division of the

Miami County Court of Common Pleas, on his guilty plea, of contributing to the

delinquency of a child in violation of R.C. 2919.24, a misdemeanor of the first degree. He

was sentenced to six months in jail, with all but 10 days suspended, to two years of

probation, to perform 20 days of community service, to pay a fine, and to surrender his

teaching license, along with other conditions.

       {¶ 3}     In April 2013, Widener filed an application to seal the record of his

conviction. The State opposed the application. The parties did not dispute that Widener

had completed his sentence and that no criminal proceedings were pending against him, and

the trial court found that he had been rehabilitated to its satisfaction. The only disputed

issue was whether Widener was eligible to have the record sealed. On July 29, 2013, the

trial court granted Widener’s application to seal the record of his conviction.

       {¶ 4}     The State appeals, raising one assignment of error.

       THE         TRIAL          COURT          ERRED           IN        GRANTING

       DEFENDANT-APPELLEE’S APPLICATION TO SEAL THE RECORD

       FOR HIS ADULT CONVICTION OF CONTRIBUTING TO THE

       DELINQUENCY OF A CHILD BECAUSE SUCH A CONVICTION IS

       NOT ELIGIBLE FOR SEALING.
[Cite as State v. Widener, 2014-Ohio-333.]
         {¶ 5}         The State contends that, pursuant to R.C. 2953.36(F), Widener’s conviction

was not eligible to be sealed because it was a misdemeanor of the first degree and the victim

was a minor.

         {¶ 6}         R.C. 2953.31 et seq. permit a first-time offender to request that his or her

criminal record be sealed. The applicant must be eligible to have the conviction sealed and

the offense must be one that is subject to being sealed. Expungement1 is “an act of grace

created by the state;” as such, it is a privilege, not a right. State v. Simon, 87 Ohio St.3d

531, 533, 721 N.E.2d 1041 (2000), citing State v. Hamilton, 75 Ohio St.3d 636, 639, 665

N.E.2d 669 (1996).                  See also State v. Ninness, 6th Dist. Ottawa No. OT-11-024,

2013-Ohio-974; State v. M.R., 8th Dist. Cuyahoga No. 94591, 2010-Ohio-6025, ¶ 14; State

v. Reed, 10th Dist. Franklin No. 05AP-335, 2005-Ohio-6251, ¶ 7-8.

         {¶ 7}         “The applicant must meet the statutory eligibility criteria in order to invoke

the court’s jurisdiction to expunge a conviction; the state bears no burden other than, when

appropriate, to object to an application. State v. Menzie, Franklin App. No. 06AP-384,

2009-Ohio-6990, ¶ 7.               Applicants whose conviction falls within any category of R.C.

2953.36 are ‘ineligible’ for expungement.”                        (Some internal citations omitted.) M.R. at ¶

15, citing Simon at 533.

         {¶ 8}         The trial court’s preliminary determination as to whether the statutory

eligibility requirements for sealing a conviction apply is a question of law that this court

reviews de novo. M.R. at ¶ 15; State v. Talameh, 11th Dist. Portage No. 2011-P-74,

2012-Ohio-4205, ¶ 20. After it has properly determined that a conviction is eligible to be

             1
               See State v. Pariag, 137 Ohio St.3d 81, 2013-Ohio-4010, 998 N.E.2d 401, ¶ 11-12 (acknowledging the continued use
   of the term “expungement” to describe the process of sealing a conviction).
                                                                               4

sealed, the trial court’s decision to grant or deny a request to seal records is reviewed for an

abuse of discretion. Ninness at ¶ 8; Talameh at ¶ 20.

        {¶ 9}      R.C. 2953.36 identifies several types of convictions for which sealing of the

record cannot be considered. Subsections R.C. 2953.36(E) and (F) are discussed by the

parties to this appeal:

        (E) Convictions on or after October 10, 2007, under section 2907.08,

        2907.09, 2907.21, 2907.22, 2907.23, 2907.31, 2907.311, 2907.32, or 2907.33

        of the Revised Code when the victim of the offense was under eighteen years

        of age;

        (F) Convictions of an offense in circumstances in which the victim of the

        offense was under eighteen years of age when the offense is a misdemeanor

        of the first degree or a felony, * * *.

Widener’s offense of contributing to the delinquency of a child (R.C. 2919.24) is not one of

the offenses listed in R.C. 2953.36(E).

        {¶ 10}     The    trial   court   interpreted   R.C.   2953.36(E)   as   a

                  comprehensive list of the offenses that are not eligible to be

                  sealed due to the age of the victim.         The court stated:

                          The legislative intent of the [2007] amendment to R.C.

                  2953.36, specifically paragraph (E), was to except specific

                  crimes from expungement when the victim was under the age

                  of 18 by listing them in the statute. Absent from that list is

                  the crime of contributing to the delinquency of a child. The
                                                                               5

                contributing statute by its very nature requires the victim to be

                under the age of 18. So why then does it not appear under

                R.C. 2953.36(E)?       The answer to this court is that the

                legislature did not intend to except it from the sealing process

                * * *.

 The court also referenced the rule of “ejusdem generis,” stating that the listing of specific

statutory exceptions in subsection (E) led the court to conclude that the general exception set

forth in subsection (F) did not apply to the same general class of offenses. The court further

concluded that the interpretation advocated by the State would frequently result in the

inability to seal cases in situations where it would be “against public policy” (such as in the

prosecution of parents or store owners for contributing or an assault by an 18-year-old on a

16- or 17-year old) and that, in the case of a child-defendant, such a rule is “not in the best

interest of the adjudicated child.” Although the court did not expressly find any ambiguity

in the statute, it stated that it relied on “the totality of the circumstances” in finding that the

State’s argument was “flawed.”

       {¶ 11}     The State contends that there is no ambiguity in R.C. 2953.36 that required

interpretation by the trial court. In its reading of the statute, Widener’s conviction was

ineligible to be sealed under R.C. 2953.36(F), because his offense was a misdemeanor of the

first degree and the victim of the offense was a minor. We agree. The applicability of the

statutory factors was a straightforward determination to be made based on the stated criteria.

 R.C. 2953.36(E) encompasses some offenses of a lesser degree than subsection (F), which

applies only to first-degree misdemeanors and felonies. Any overlap between subsections
                                                                               6

(E) and (F) results in an offense twice being excluded from consideration for sealing the

record; these subsections cannot reasonably be read to make eligible for sealing any

conviction for a misdemeanor of the first degree or a felony where the victim is a minor.

The trial court erred in considering the “totality of the circumstances” and in considering

whether there might be other circumstances (not presented in this case) in which a

compelling reason to seal a conviction for contributing to the delinquency of a child might

exist.

         {¶ 12}   Widener argues that, “[w]hen read together, Subsections (F) and (E) are

ambiguous as to which provision, if either, apply [sic] to Ohio’s contributing [to the

delinquency of a child] statute.” Specifically, Widener claims that, because, by definition,

all victims of the offense he committed are minors, the legislature would have included that

offense in subsection (E) if it had intended to prohibit the sealing of such convictions.

         {¶ 13}   The legislature clearly intended that more than one of the subsections apply

to offenses involving minor victims, as subsections (E) and (F) both expressly apply to this

category of victim. We find no basis in the statutory language for Widener’s argument or

the court’s conclusion that all of the offenses involving minors to which the expungement

exclusion was intended to apply were (or must have been) listed in subsection (E). The

offenses listed in subsection (E) are all in Chapter 2907, entitled “Sex Offenses,” and their

penalties range from second degree felonies to fourth degree misdemeanors. This reflects a

legislative decision not to allow sealing of those specific offenses, regardless of the degree of

the offense. Contributing, on the other hand, is always a first degree misdemeanor and may

or may not involve a “sex offense.” A reasonable interpretation of the statute would be that
                                                                               7

the legislature intended for non-sex offenses be addressed by subsection (F).

           {¶ 14}   Other appellate courts have addressed similar issues. In M.R., 8th Dist.

Cuyahoga No. 94591, 2010-Ohio-6025, the defendant had taken a picture of his

three-year-old after a bath and had shown it to others. He pled guilty to five counts of

attempted pandering of obscenity. The State objected to the defendant’s subsequent motion

to seal his record, relying on R.C. 2953.36(F), because the obscene material involved a

person under the age of 18. The trial court granted the defendant’s application to expunge,

but the Eighth District reversed, holding that “[a]pplicants whose conviction falls within any

category of R.C. 2953.36 are ‘ineligible’ for expungement.” Id. at ¶ 15. The appellate

court found that the crime fell within R.C. 2953.36(F). The court also noted that pandering

obscenity is an offense listed in R.C. 2953.36(E), and that the provision that the defendant

had “attempted” to commit that offense did not affect R.C. 2953.36(E)’s applicability. Id.

at ¶ 25.

           {¶ 15} In Ninness, 6th Dist. Ottawa No. OT-11-024, 2013-Ohio-974, the Sixth

District addressed whether a conviction for child endangering (a first degree misdemeanor in

violation of R.C. 2919.22(C)(1)) could be expunged. Like contributing to the delinquency

of a child, child endangering is an offense in which the victim is, by definition, a minor, but

this offense is not listed in R.C. 2953.36(E).        The Sixth District concluded that the

defendant’s guilty plea to child endangering was “itself dispositive of the expungement

issue,” i.e., it established that the offense was excluded from expungement under R.C.

2953.36(F). Id. at ¶ 14.

           {¶ 16}   Widener argues that the offense of which he was convicted, contributing to
                                                                               8

the delinquency of a child, could have logically been included in R.C. 2953.36(E), because

the “pertinent characteristic of these statutes [2953.36(E) and (F)] * * * seems to be the age

of the victim.” He argues that we should infer from the legislature’s failure to include

contributing to the delinquency of a child in subsection (E) that the legislature intended to

exclude that offense from the list of “non-sealable offenses,” or that its exclusion at least

creates an ambiguity in the statute; Widener has cited no cases finding an ambiguity therein.

         {¶ 17}       Even if we were to agree with Widener’s premise that contributing to the

delinquency of a child could have been included in the list of offenses set forth in R.C.

2953.36(E), the legislature’s failure to include it did not create an ambiguity in the statute.

As the cases from other districts demonstrate, there are numerous additional offenses

involving minors as victims that might have been included in R.C. 2953.36(E).                                              It is

reasonable to conclude that the legislature drafted subsection (F) to address these other

offenses. Moreover, there is nothing in the language of the statute to suggest that there can

be no overlap between subsections (E) and (F). The proper role of the courts is to interpret

and apply the statutes as written, not to question why they were not written differently or to

interpret non-ambiguous language in a fashion that arguably is “in the best interests of [an]

adjudicated child”2 or the best “public policy.”

         {¶ 18}       Because the language of R.C. 2953.36(F) applied to Widener’s conviction,

the trial court erred in concluding that Widener’s conviction was eligible to be sealed.

             2
               We also note that sealing or expungement of an offense committed by an adjudicated child is separately addressed in
   the Revised Code. See R.C. 2151.356.
                                                                    9

       {¶ 19}       The assignment of error is sustained.

       {¶ 20}   The judgment of the trial court will be reversed.

                                          ..........

FAIN, J. and DONOVAN, J., concur.

Copies mailed to:

Melissa L. Wood
Jose M. Lopez
Hon. William R. Zimmerman,
Visiting Judge


454 P.2d 241 (1969)
Glenn NEEL, Robert Broyles, and Richard Broyles, Appellants (Defendants below),
v.
The STATE of Wyoming, Appellee (Plaintiff below).
No. 3715.
Supreme Court of Wyoming.
May 16, 1969.
*242 Fred Phifer, Wheatland, William S. Padley, Ogallala, Neb., for appellants.
Before GRAY, C.J., and McINTYRE, PARKER, and McEWAN, JJ.

ON PETITION FOR REHEARING
Mr. Justice McINTYRE delivered the opinion of the court.
In Neel v. State, Wyo., 452 P.2d 203, we affirmed the conviction of defendants on a charge of grand larceny. They have petitioned for rehearing, asserting they were not proved guilty of a theft; that if they were to be charged with any crime, it should have been the crime of obtaining property under false pretenses; and that the evidence necessary to prove the charge of obtaining property under false pretenses is different from the evidence required to prove the charge of theft.
It is well settled that where a person by trick or fraud obtains possession of property intending at the time of obtaining the property to convert it to his own use, and does so convert it, the fraud is the equivalent of a felonious taking and the offense is larceny. Annotation 26 A.L.R. 381, 382. In the instant case the jury was expressly instructed to this effect.
Our grand larceny statute, § 6-132, W.S. 1957, appears to have been taken from the laws of Indiana, and that state has repeatedly held possession of property obtained by fraud with the intent to steal the same constitutes larceny when there is a felonious appropriation. See Huber v. State, 57 Ind. 341, 346, 26 Am.Rep. 57 (an opinion rendered prior to the enactment of our grand larceny statute in 1890); Bradley v. State, 165 Ind. 397, 75 N.E. 873, 874; and Johnson v. State, 222 Ind. 473, 54 N.E.2d 273, 276.
In "larceny" owner of the property has no intention to part with title therein to the person taking it although he may intend to part with possession, while in "false pretenses" owner intends to part with both his possession and title but such are obtained from him by fraud. Warren v. State, 93 Okl.Cr. 166, 226 P.2d 320, 324; 95 Okl.Cr. 160, 241 P.2d 410; People v. Santora, 51 Cal. App.2d 707, 125 P.2d 606, 608. See also Johnson v. State, supra.
*243 If only the possession of the thing of value is obtained and it is then converted by the accused, the crime involved is larceny and not false pretense. Zarate v. People, Colo., 429 P.2d 309, 311. Otherwise stated, one test for distinguishing between larceny and obtaining property by false pretenses is to determine whether the offender could confer good title upon another by sale and delivery of the property. If he could not, the offense is larceny. State v. Thompson, 240 Or. 468, 402 P.2d 243, 245.
In the case we are concerned with, Ted Munn, manager of the Tri-County Elevator in Chugwater, Wyoming, thought he was delivering grain to persons who were going to take it to Larry Morgan of Farmer's Elevator Company at Sterling, Colorado. Munn did not intend to transfer title to the property over to the defendant-truck drivers.
Having received the grain, supposedly for Morgan, the defendants could not confer good title upon another by sale and delivery of the property to some person or persons other than Morgan. Also, defendants having intended to convert the grain after receiving possession from Munn, and having so converted it, they were guilty of larceny.
Rehearing denied.


968 F.2d 756
Kenneth N. THOMPSON, Appellant,v.James R. REUTING (Police Officer), Appellee,Edward Hale, Police Officer;  Steve Cordwin, Police Officer,Omaha Police Division.Kenneth N. THOMPSON, Appellant,v.Edward HALE (Police Officer);  Steve Cordwin (PoliceOfficer), Appellees.
Nos. 91-1690, 91-1752.
United States Court of Appeals,Eighth Circuit.
Submitted Nov. 14, 1991.Decided July 7, 1992.

Francis T. Belsky and Terrance S. Dewald, Omaha, Neb., on the brief, for Kenneth N. Thompson.
Herbert M. Fitle, James E. Fellows and Wendy E. Hahn, Omaha, Neb., on the briefs, for appellees.
Before LAY,* Chief Judge, RICHARD S. ARNOLD,** Circuit Judge, and STUART,*** Senior District Judge.
RICHARD S. ARNOLD, Circuit Judge.

1
These appeals involve two separate actions brought by Kenneth N. Thompson under 42 U.S.C. § 1983 claiming that Omaha police officers violated his Fourth and Fourteenth Amendment rights.   In No. 91-1752NE, Thompson claims the District Court erred in denying his motions for partial summary judgment, a directed verdict, and judgment notwithstanding the verdict or a new trial after a jury found in favor of the defendants on his claim that the police did not have a reasonable articulable suspicion to stop the car in which he was a passenger.   We agree and reverse.   In No. 91-1690NE, Thompson claims the District Court erred in dismissing his complaint.   We affirm.I.

2
Although the cases have been consolidated for appeal because they involve the same plaintiff, they involve different defendants and claims.   We shall discuss each of them in turn.

3
No. 91-1752NE involves events surrounding Thompson's arrest on November 12, 1987.   On that day, around 8:20 p.m., Officers Hale and Cordwin of the Omaha Police Department (driving in separate cars) heard a radio dispatch indicating that police had received reports of "a suspicious brown Chevy Nova" near 48th and Sahler Streets.   The officers received no other information in this dispatch.

4
After receiving the dispatch, Hale drove to the intersection of 48th and Sahler.   He approached the intersection traveling on 48th Street and turned left onto Sahler Street.   At this time, he saw a brown Chevy Nova stopped on Sahler Street at the intersection.   As he was making his turn, the Nova turned right onto 48th Street.   Hale then turned around and began following the Nova down 48th Street.   He followed the Nova for five blocks.   Although he could not see who was in the Nova and did not see any violations of the law or suspicious activity, he eventually flashed his lights and pulled the Nova over.

5
Hale stayed in his police car after stopping the Nova.   He radioed in to the police department the Nova's make and license number.   While waiting for the results of the license-plate check, Hale shone a spot light into the Nova and noticed for the first time that the driver and passenger were black men.   He still did not see any suspicious activity or violations of the law.

6
After Hale received no reports on the Nova, he got out of his car and approached the Nova.   He saw nothing suspicious.   When he reached the car, he recognized the driver as Jerry Holly.   He asked Holly for his license, registration, and proof of insurance.   After looking at Holly's documents, he asked the passenger, Kenneth Thompson, for some identification.   When Hale looked at Thompson, he "strongly suspected" that a warrant was out for his arrest.   Hale remembered seeing Thompson's picture in a "wanted" bulletin several weeks earlier.   At any rate, Thompson told Hale that he did not have any identification and that his name was James Johnson.

7
Despite Hale's suspicions about Thompson, he did not review the "wanted" bulletins he had in his police car to confirm his suspicions.   Instead, he radioed in the names Jerry Holly and James Johnson to see if they were subject to outstanding arrest warrants.   The search revealed no outstanding warrants.   Indeed, the police had no records of a James Johnson at all.

8
Since the name James Johnson did not appear in police files, Hale began to suspect that Thompson had given him a false name.   He went back to the Nova and asked Thompson if he had ever been arrested.   Thompson said, "Yes, a couple of times."   Hale then told Thompson he was taking him to the police station for an ID check.   Thompson was searched, handcuffed, and placed in Hale's police car with the help of Officer Cordwin, who had since arrived on the scene.

9
On the way to the police station, Thompson told Hale his real name.   After getting Thompson's name, Hale found out that Thompson was the subject of an outstanding warrant for robbery.   At this time, Hale formally arrested Thompson.   Thompson was eventually tried on the robbery charges related to the outstanding warrant.   In those criminal proceedings, he challenged the constitutionality of Hale's stop of the Nova.   The trial court rejected his claim, and Thompson was convicted on two counts of robbery and two counts of using a weapon to commit a felony.   He is currently serving a sixty-year sentence.

10
Although the Nebraska Supreme Court rejected Thompson's challenges to his conviction,1 he brought this action for damages under 42 U.S.C. § 1983 against Hale and Cordwin.   He claimed that the defendants violated his Fourth and Fourteenth Amendment rights by stopping the Nova without a reasonable articulable suspicion and later arresting him.   Prior to trial, Thompson moved for partial summary judgment on his claim that Hale's stop of the car was unconstitutional as a matter of law.   The Court denied the motion, and the case proceeded to trial.   At trial, Thompson moved for a directed verdict on his claim against Hale.   Again, the Court denied the motion.   After the jury found in favor of the defendants, the District Court rejected Thompson's motion for judgment notwithstanding the verdict or a new trial.   This appeal followed.

11
Although the parties do not mention it in their briefs, resolution of the issues presented by this case begins with the proposition that in the absence of a genuine dispute over material facts, the issue of whether Hale had a reasonable articulable suspicion to justify stopping the Nova is a question of law.   See, e.g., Linn v. Garcia, 531 F.2d 855, 861 (8th Cir.1976).   Here, the parties did not dispute facts with any legal relevance.2  Consequently, the District Court erred by submitting the case to the jury.

12
Having concluded that this case should have been decided by the District Court, we turn to the merits of that decision.   In its memorandum denying plaintiff's motion for judgment notwithstanding the verdict or a new trial, the Court recited the following facts as providing a sufficient basis for the stop:

13
1.  Officer Hale received a dispatch of a suspicious brown Nova car in the vicinity of 48th and Sahler Streets;

14
2.  It was dark at the time he received the radio dispatch;

15
3.  When he arrived at 48th and Sahler, the vehicle at issue, a brown Nova, was the only vehicle in the vicinity;

16
4.  The vicinity was a low-traffic area and Sahler Street West from 48th was a dead-end street about one to two blocks long;

17
5.  Officer Hale was an experienced police officer who had lived in the neighborhood in question and he knew it to be a high-crime area;  and

18
6.  From the outside he was unable to tell how many occupants were in the car or their color or sex.

19
Thompson v. Hale, CV88-L-220, Memorandum and Order on Motion for Judgment Notwithstanding the Verdict or, in the Alternative, for New Trial (D.Neb., Mar. 22, 1991).   With respect, we disagree with the District Court's conclusion.   These facts, as a matter of law, do not establish that Hale had an objectively reasonable suspicion that the occupants of the Nova were involved in criminal activity in order to justify stopping it under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

20
In Alabama v. White, 496 U.S. 325, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990), the Supreme Court reaffirmed the principle that "[t]he officer [making a Terry stop] ... must be able to articulate something more than an inchoate and unparticularized suspicion or hunch."  Id. at 329, 110 S.Ct. at 2416 (quoting United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 1585, 104 L.Ed.2d 1 (1989)) (internal quotations omitted).   All of the information available to Officer Hale was inchoate and unparticularized.   He did not see any violations of the law.   Facts such as being in a high-crime area, in the dark, and unable to see the occupants of the car are very general and provide no information about the people in the Nova, much less information indicating that the people may have committed a crime.   The additional information provided by the dispatch does not make up the difference.   A report that a particular car is "suspicious" simply does not indicate whether its occupants may be engaged in criminal activity.

21
The District Court should have directed a verdict in favor of the plaintiff on his claim that Hale stopped the Nova without a reasonable articulable suspicion in violation of the Fourth Amendment.   We therefore reverse the judgment of the District Court and remand the case for further proceedings.3  The remand, however, concerns only the case against Hale.   The co-defendant, officer Cordwin, was in a separate car.   He did not arrive on the scene until Hale had already made the unlawful stop.   As to Cordwin, the judgment entered in accord with the jury's verdict is affirmed.

II.

22
Thompson's claim against Officer Reuting requires a less extended discussion.   In his complaint, Thompson alleged that Reuting obtained a warrant for his arrest--apparently the same warrant upon which Officer Hale arrested Thompson--on the basis of an affidavit which did not establish probable cause.   The District Court dismissed the complaint for failure to state a claim upon which relief could be granted.   Although we do not agree with the reasoning used by the District Court, we affirm its dismissal of the complaint.

23
In Malley v. Briggs, 475 U.S. 335, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986), the Supreme Court held that police officers seeking arrest warrants are entitled to qualified immunity for their actions unless "the warrant application is so lacking in indicia of probable cause as to render official belief in its existence unreasonable...."  Id. at 344-345, 106 S.Ct. at 1098.   The issue is not whether the affidavit actually establishes probable cause, but rather whether the officer had an objectively reasonable belief that it established probable cause.   In the affidavit Thompson challenges here, Reuting provided descriptions of two people who robbed a restaurant and indicated that an employee of the restaurant had identified Thompson in a photo array as one of those people.   Facts Thompson claims are missing from the affidavit--such as the fact that Reuting did not personally interview the employee who identified Thompson as one of the robbers--do not demonstrate that "a reasonably well-trained officer ... would have known that his affidavit failed to establish probable cause...."  Id. at 345, 106 S.Ct. at 1098.   We therefore affirm the District Court's dismissal of Thompson's complaint on the ground that Reuting was entitled to qualified immunity for his actions.

III.

24
The judgment of the District Court in No. 91-1690NE is affirmed.   The judgment in No. 91-1752NE is affirmed as to Cordwin.   As to Hale, the judgment is reversed, and the cause is remanded to the District Court for further proceedings consistent with this opinion.

25
It is so ordered.

*
 The Honorable Donald P. Lay was Chief Judge of the United States Court of Appeals for the Eighth Circuit at the time this case was submitted and took senior status on January 7, 1992, before the opinion was filed

**
 The Honorable Richard S. Arnold became Chief Judge of the United States Court of Appeals for the Eighth Circuit on January 7, 1992

***
 The Honorable William C. Stuart, Senior United States District Judge for the Southern District of Iowa, sitting by designation

1
 See State v. Thompson, 231 Neb. 771, 438 N.W.2d 131 (1989).   The Court held the stop of which Thompson complains in this action invalid, but nonetheless approved the admission of two items of evidence obtained after the stop.   The admission of one piece of evidence was held to be harmless, and the Court held that the chain of causation leading to the other one was so attenuated as to dissipate the taint of the unlawful stop

2
 Officers Hale and Cordwin said the dispatcher informed them of a "suspicious brown Chevy Nova."   A tape of the dispatch indicates that the dispatcher referred only to "a suspicious vehicle."   Even if the dispatcher stated that the suspicious car was a "brown Chevy Nova," however, our analysis would be the same.   We therefore assume that Officers Hale and Cordwin received a report of a "suspicious brown Chevy Nova."

3
 It appears that any damages available would be only nominal.   The plaintiff's conviction and imprisonment are not attributable to the stop.   The Supreme Court of Nebraska so held on his direct appeal from the conviction, and that holding binds both Thompson and us in this Section 1983 action


137 S.W.3d 342 (2004)
TEXAS MEDICAL ASSOCIATION; Texas AFL-CIO; Patient Advocates of Texas; Allen J. Meril, M.D.; and L.E. Richey, Appellants,
v.
TEXAS WORKERS COMPENSATION COMMISSION; Richard F. Reynolds, Executive Director; and Texas Association of Business, Appellees.
No. 03-03-00436-CV.
Court of Appeals of Texas, Austin.
May 20, 2004.
Rehearing Overruled June 24, 2004.
*345 David F. Bragg, Bragg Chumlea McQuality, Austin, for Texas Medical Association and Texas AFL-CIO.
William Maxwell, Keith T. Gilbert, Gilbert & Maxwell, PLLC, Houston, for Richey.
Don Walker, Asst. Atty. Gen., Austin, for Texas Workers' Compensation Commission; Reynolds.
Jennifer S. Riggs, Bill Aleshire, Riggs & Aleshire, PC, Austin, for Patient Advocates; Meril, M.D.
P.M. Schenkkan, Thomas B. Hudson, Jr., Nancy Rice Hudson, Graves, Dougherty, *346 Hearon & Moody, P.C., Austin, for Texas Association of Business.
Before Chief Justice LAW, Justices KIDD and B.A. SMITH.

OPINION
BEA ANN SMITH, Justice.
This case concerns allegations by the Texas Medical Association, the Texas AFL-CIO, Patient Advocates of Texas, and Doctors Allen J. Meril and L.E. Richey (collectively, the appellants),[1] that the 2002 medical fee guidelines promulgated by the Texas Workers Compensation Commission are invalid. See 28 Tex. Admin. Code § 134.202 (2003). Appellants assert substantive and procedural challenges to the Commission's rule establishing the 2002 fee guidelines. For the reasons that follow, we affirm the judgment of the district court declaring the 2002 fee guidelines valid and denying a permanent injunction to restrain the guidelines' implementation.

BACKGROUND
In 2001, the Texas Legislature amended section 413.011 of the labor code to require the Commission to revamp its medical reimbursement policies and guidelines relating to the workers' compensation program. See Act of May 25, 2001, 77th Leg., R.S., ch. 1456, § 6.02, sec. 413.011, 2001 Tex. Gen. Laws 5167, 5184 (codified at Tex. Lab.Code Ann. § 413.011 (West Supp. 2004)). The new statute imposed upon the Commission the duty to adopt entirely new guidelines for reimbursement to be paid to medical-care providers participating in the workers' compensation program. Tex. Lab.Code Ann. § 413.011 (West Supp. 2004). The statute directed the Commission to use the "most current reimbursement methodologies, models, and values or weights" used by the federal Centers for Medicare and Medicaid Services (CMS)[2] in an effort to achieve standardization among various health-care delivery systems, with "minimal modifications ... as necessary to meet occupational injury requirements." Id. As its reimbursement "methodology," the CMS employs a mathematical formula that assigns relative values to specific medical services, adjusts those values based upon geographic differences, and converts the relative values into dollar amountsusing the so-called "conversion factor"to arrive at the reimbursement payment.[3]
After notice and comments, the Commission adopted rule 134.202, which directs that workers' compensation participants "shall apply the Medicare program reimbursement methodologies, models, values or weights ... in effect on the date a service is provided." 27 Tex. Reg. 4048 *347 (May 10, 2002) (codified at 28 Tex. Admin. Code § 134.202). Additionally, the rule provides that to determine the maximum allowable reimbursements for professional services, system participants shall apply the Medicare payment policies with the following modification: for certain service categories (i.e., evaluation and management, general medicine, physical medicine and rehabilitation, surgery, radiology, and pathology), the conversion factor will be the "effective conversion factor adopted by CMS multiplied by 125%." 28 Tex. Admin. Code § 134.202(c).
In July 2002, the Texas AFL-CIO and the Texas Medical Association filed a suit seeking to declare, the 2002 fee guidelines invalid because the Commission (1) had improperly delegated its duty to develop the conversion factor to the CMS; (2) had not provided a reasoned justification for the rule as required by the administrative procedure act (APA); (3) had not consulted the Medical Advisory Committee[4] in developing the conversion factor; and (4) had violated the statute by adopting the CMS's conversion factor without considering whether it met the statutory mandates to ensure fair and reasonable rates, quality care, and effective cost control. The appellants also sought a temporary injunction restraining the Commission from enforcing the 2002 fee guidelines. The district court held a hearing on the request for a temporary injunction in August 2002. The court issued a temporary injunction and remanded the rule to allow the Commission to revise its preamble to make it substantially comply with the reasonedjustification requirement.[5]
The Commission adopted a "Supplemental Preamble" on December 12, 2002. See 27 Tex. Reg. 12,304-12,349 (Dec. 27, 2002) (hereinafter Supp. Preamble). On that date, the Commission also readopted the 2002 fee guidelines, with no textual changes to the rule. See id. 12,349. The Supplemental Preamble exceeded over forty dual-column pages in the Texas Register. In it, the Commission labored to "connect the dots," as the district court had instructed it, to explain how it arrived at the 125% conversion factor.
In April 2003, the district court held another hearing, this time on the appellants' request for a permanent injunction and on the merits of the rule's validity. After hearing evidence and argument, the court determined that the Commission's Supplemental Preamble substantially complied with the reasoned-justification requirement and issued an order declaring the 2002 fee guidelines valid in all respects, effective August 1, 2003. The appellants filed a motion for rehearing, which the district court denied. The appellants then brought this appeal, reasserting their arguments urged to the district court.

DISCUSSION

Substantive challenges
A. Delegation of power
In issues one and two, appellants assert that the Commission unlawfully and unconstitutionally *348 delegated to a federal agency (the CMS) its responsibility to develop the conversion factor. See Tex. Lab. Code Ann. § 402.068 (West 1996) ("Except as expressly provided by this subchapter, the [C]ommission may not delegate rights and duties imposed on it by this subchapter."), § 413.011 (West Supp.2004) ("[T]he [C]ommission shall also develop conversion factors or other payment adjustment factors taking into account economic indicators in health care and the requirements of Subsection (d).... This section does not adopt the Medicare fee schedule, and the [C]ommission shall not adopt conversion factors or other payment adjustment factors based solely on those factors as developed by the federal [CMS].").
Next, appellants argue that the delegation violates article III, section 1 of the Texas Constitution. See Tex. Const. art. III, § 1 (legislative power is vested solely in Texas Senate and House of Representatives); Proctor v. Andrews, 972 S.W.2d 729, 733 (Tex.1998) (constitution generally prohibits delegation of legislative power to private entities); Ex parte Elliott, 973 S.W.2d 737, 741 (Tex.App.-Austin 1998, pet. ref'd) (if federal agency has authority to change Texas law without intervention of legislature, constitutionality of statute would be in doubt).
We must first determine whether the Commission has delegated its duty to develop the conversion factor to the CMS. The 2002 fee guidelines provide that fees for certain services are to be calculated by using the "effective conversion factor adopted by CMS multiplied by 125%." 28 Tex. Admin. Code § 134.202(c)(1). The rule also provides that "[w]henever a component of the Medicare program is revised and effective, use of the revised component shall be required for compliance with [C]ommission rules ... for services rendered on or after the effective date of the revised component." See id. § 134.202(a)(5). The initial preamble to the rule noted that the requirement to use revised Medicare components "include[s] Medicare revisions to the conversion factor." See 27 Tex. Reg. 4048-4121 (May 10, 2002) (hereinafter Preamble). Thus, appellants assert that because the Texas conversion factor differs by a mere percentage from the current CMS factor, the Texas conversion factor will "automatically" change whenever the CMS factor changes. Such an automatic adjustment to the Texas conversion factor will happen solely at the behest of the CMS, independently of the Commission. They cite this as evidence that the Commission has delegated its duty to develop a conversion factor, ignoring the statutorily mandated factors. We disagree.
The new statute commands the Commission to first "adopt the most current reimbursement methodologies, models, and values or weights used by the federal [CMS]." Tex. Lab.Code Ann. § 413.011(a). In other words, the Commission must begin its task of developing fee guidelines with the mathematical formula used by the CMS. See 66 Fed.Reg. 55,248 (Nov. 1, 2001). Then, the statute commands the Commission to adjust that formula to accomplish fair and reasonable guidelines: "[the Commission shall] develop conversion factors or other payment adjustment factors taking into account economic indicators in health care and the requirements of Subsection (d) [guidelines are to be fair and reasonable and designed to ensure quality of medical care and achieve effective medical cost control]." See Tex. Lab.Code Ann. § 413.011(a). In developing such conversion factors, "the [C]ommission shall not adopt conversion factors or other payment adjustment factors based solely on those factors as developed by the federal [CMS]," and the statute "does not adopt *349 the Medicare fee schedule." Id. Thus, the statute merely prohibits the Commission from adopting a Texas conversion factor based on nothing other than the Medicare factor. The Supplemental Preamble alone is replete with evidence of the Commission's consideration of other factors, such as workers' access to care, effective cost control, quality care, and fairness.
The Supplemental Preamble notes the importance of using the effective Medicare conversion factor:
To achieve standardization, it is necessary to use the Medicare billing and reimbursement policies as they are modified by the CMS. Adoption of policies in effect on a particular date would require participants in the Texas workers' compensation system to bill and reimburse in a manner different from the current Medicare system and other healthcare reimbursement systems. That would undermine or eliminate the positive impact of the standardization required by the statute, including reduced administrative costs as discussed in the April 2002 preamble and the Supplemental Preamble. Therefore, the rule, in compliance with the statute, requires the use of the Medicare policies in effect on the day that a service is provided. [28 Tex. Admin. Code] § 134.202(a)(5).
Supp. Preamble 12,311. We cannot conclude that because the Texas conversion factor "automatically" self-adjusts with every change in the federal CMS conversion factor, the Commission has delegated its duty to develop a conversion factor to the CMS. As indicated in the initial and supplemental preambles, the Commission's decision to set the Texas conversion factor at a particular percentage of the effective Medicare factor was based on the balancing of several interests and factors: reducing medical costs, achieving standardization among different healthcare-re-imbursement systems, taking into account specific requirements of the workers' compensation system and its administration, and addressing the other statutorily mandated factors in section 413.011. See generally Supp. Preamble. The Commission considered studies, reports, facts, and other evidence to conclude that setting the conversion factor at 125% of the Medicare factor accomplishes all of its sometimes conflicting duties. The Commission did not omit consideration of these factors or delegate consideration to the CMS.
Furthermore, the Supplemental Preamble to the fee-guidelines rule states,
The Commission will monitor any future changes in Medicare fee levels and effects on access to medical care closely. In response to any future Medicare fee changes, the Commission will promptly make appropriate changes, up or down, in the premium above Medicare that it sets for Texas workers' compensation fee levels if it determinates this is needed under the Texas statutory standards.
Id. 12,335. Changes to the Medicare conversion factor are historically announced several months before they become effective. See, e.g., 42 C.F.R. § 414A (2003) (CMS announces proposed changes in Federal Register and provides opportunity for public comments prior to publication of final changes); 67 Fed.Reg. 79,966 (Dec. 31, 2002) (2003 conversion factor published on December 31, 2002, to be effective on March 1, 2003). Thus, the Commission will have an opportunity to make any necessary changes to the Texas multiplier prior to the date the Medicare conversion factor becomes effective. Indeed, the Commission has already adjusted the Texas conversion factor to 125%, up from 120%, after the Medicare conversion factor for 2002 was reduced. Supp. Preamble 12,335; see also 66 Fed.Reg. 55,320 (Nov. *350 1, 2001). Even without the Commission's statement in the Supplemental Preamble, the Commission has the ongoing statutory duty to review and revise the fee guidelines to ensure they are in compliance with the statutory factors. See Tex. Lab.Code Ann. § 413.012 (Commission is to review and revise guidelines at least every two years). Appellants' contention that the adjustment to the Texas conversion factor is "automatic" is thus overstated. The Commission will have the ultimate authority, and the ongoing duty, to make adjustments to the Texas conversion factor to keep it reflective of the mandatory statutory factors.
This case is analogous to other delegation cases where this Court has determined that no unconstitutional delegation has occurred. See Ray v. Texas State Bd. of Pub. Accountancy, 4 S.W.3d 429, 431-33 (Tex.App.-Austin 1999, no pet.) (comptroller's rule incorporating, when applicable, "generally accepted auditing standards" of American Institute of Certified Public Accountants not delegation because comptroller retained discretion to interpret and apply standards on case-by-case basis); Central Power & Light Co. v. Sharp, 919 S.W.2d 485, 492-93 (Tex.App.-Austin 1996) (comptroller's rule defining "generally accepted accounting principles" to mean those principles adopted by American Institute of Certified Public Accountants was not delegation of power to private entity because Institute lacked direct authority over Texans, and there were safeguards to ensure that no wholesale delegation had occurred), writ denied, 960 S.W.2d 617 (Tex.1997) (per curiam); but see Elliott, 973 S.W.2d at 741 (construction of statute that would mean Texas definition of hazardous waste changes each time federal Environmental Protection Agency [EPA] changes its definition would "place in doubt" constitutionality of statute, but court did not reach delegation question, instead construing statute to adopt EPA's definition at fixed point in time). In Central Power & Light, for example, we considered whether the incorporation of "future pronouncements" of definitions by a private entity bestowed legislative authority on that body. We concluded that in light of the comptroller's ongoing oversight of the application of those standards, there was no basis to conclude that the entity wielded any legislative power. 919 S.W.2d at 493. Similarly, here the Commission has the authority to revise its conversion factor upon each CMS adjustment and, indeed, it must revise the factor on a continuing basis to ensure that it is fair and reasonable. We note also that the CMS has "no direct power or authority over Texans." See id. at 492. We hold that the Commission has not delegated its duty to develop the Texas conversion factor to the federal CMS. Because there has been no delegation, we need not reach appellants' arguments that the delegation was prohibited by statute or was unconstitutional. We overrule appellants' first and second issues.
B. Arbitrary and capricious
Appellants' next substantive challenge is that the 2002 fee guidelines are arbitrary and capricious because they lack a legitimate factual or legal basis. See Bullock v. Hewlett-Packard Co., 628 S.W.2d 754, 757 (Tex.1982); McCarty v. Texas Parks & Wildlife Dep't, 919 S.W.2d 853, 854-55 (Tex.App.-Austin 1996, no writ). An agency acts arbitrarily if in making a decision it (1) omits from its consideration a factor that the legislature intended the agency to consider in the circumstances, (2) includes in its consideration an irrelevant factor, or (3) reaches a completely unreasonable result after weighing only relevant factors. Reliant Energy, Inc. v. Public Util, Comm'n, 62 *351 S.W.3d 833, 841 (Tex.App.2001); McCarty, 919 S.W.2d at 854.
Appellants correctly note the factors the Commission was statutorily required to consider in promulgating its fee guidelines: whether they are fair and reasonable, ensure the quality of medical care, and achieve effective medical cost control. Tex. Lab.Code Ann. § 413.011(d). Appellants assert that by tying the conversion factor to the current CMS conversion factor, the Commission's rule violates the first and second Reliant, testsin annually adjusting its conversion factor, the CMS does not take into account the three mandatory Texas requirements, while the CMS does consider federal-budget neutrality, an irrelevant requirement under the statute. See Reliant, 62 S.W.3d at 841.
Because the Commission did not delegate its duty to set the Texas conversion factor to the CMS, we conclude that its adoption of the 125% multiplier to the CMS conversion factor was not arbitrary and capricious. The initial and supplemental preambles contain ample evidence of the Commission's consideration of the mandatory statutory factors in setting the conversion factor at a particular percentage of the Medicare factor. Also, we have found nothing in the record indicating that the Commission included federal-budget neutrality considerations in deciding to set the conversion factor as it did. Although the Medicare conversion factor may be periodically adjusted based partly on federal-budgetary constraints, the Commission retains the power to make its own adjustments to the federal factor, as necessary to meet the Texas statutory requirements. Indeed, it must make revisions to the conversion factor at least every two years to reflect fair and reasonable fees. See Tex. Lab.Code Ann. § 413.012. Although the CMS may change the Medicare conversion factor in part to comply with budgetary constraints, the Commission can and must adjust its conversion factor so that it continues to fulfill the statutory mandates. See id.; Supp. Preamble 12,335. We conclude that the Commission's 2002 fee guidelines are not arbitrary and capricious because in promulgating them, the Commission ably considered the legislatively mandated factors and did not consider the "irrelevant" factor of federal budgetary constraints.
At oral argument and in a postsubmission brief, the appellants asserted that their third issue also challenges the substantive validity of the 2002 fee guidelines on constitutional grounds. However, they did not present this argument in their pre-submission briefs.[6] All waivable errors not included in the original appellate brief are waived and present nothing for review. Hinkle v. Adams, 74 S.W.3d 189, 195 (Tex.App.-Texarkana 2002, no pet.) (citing Pat Baker Co. v. Wilson, 971 S.W.2d 447, 450 (Tex.1998)); see Tex. R.App. P. 38.1(e). Because the appellants failed to raise this argument in their presubmission briefs, the argument is waived. See City of Houston v. Precast Structures, Inc., 60 S.W.3d 331, 340 n. 4 (Tex.App.-Houston *352 [14th Dist.] 2001, pet. denied). We overrule appellants' third issue.
C. Statutory authority
Dr. Richey alone brings the following issue: "The trial court's determination that the [2002 fee guidelines are] valid is erroneous because the [Commission] did not have statutory authority to adopt the [2002 fee guidelines] in [their] current form." To support this argument, Dr. Richey rehashes the appellants' argument that the Commission merely adopted the Medicare conversion factor without taking into consideration the mandatory statutory factors. See Tex. Lab.Code Ann. § 413.011(b). Dr. Richey specifically contends that the Commission neither took into account "economic indicators in health care" nor provided for "reasonable fees for the evaluation and management of care." See id. § 413.011(b). Yet, the studies, data, and reports discussed in the initial and supplemental preambles indicate that the Commission did consider "economic indicators." See Preamble 4053-54; Supp. Preamble 12,307-310; 12,314-315; 12,319-320; 12,323-325; 12,334-336. Also, the Preamble notes that fees for the evaluation and management of care were increased under the 2002 fee guidelines because they had historically been reimbursed below the Medicare amounts. See Preamble 4062. For the reasons already discussed, we conclude that the Commission adequately took into account the statutory factors. We overrule Dr. Richey's issue.
Procedural challenges
A. Medical Advisory Committee
Appellants assert that the fee guidelines are invalid because the Commission failed to consult the Medical Advisory Committee as the labor code requires. See Tex. Lab.Code Ann. § 413.005(a) (West Supp.2004). That statute provides,
The medical advisory committee advises the division [of Medical Review] in developing and administering the medical policies, fee guidelines, and utilization guidelines established under Section 413.011. The committee shall advise the [C]ommission or professional organization in the review and revision of medical policies and fee guidelines required under Section 413.012.
Id. (emphasis added). Section 413.012 provides that "the medical policies and fee guidelines shall be reviewed and revised at least every two years to reflect fair and reasonable fees and to reflect medical treatment or ranges of treatment that are reasonable or necessary at the time the review and revision is conducted." Id. § 413.012 (West 1996). Thus, the statute commands the committee to advise the Commission in the mandatory biennial reviews of fee guidelines; the statute does not make the same command with respect to the Commission's initial formulation of the fee guidelines under section 413.011. See id. § 413.005(a). The Commission, therefore, was not statutorily required to consult the Medical Advisory Committee in promulgating the initial 2002 fee guidelines. We hold that the rule is not invalid based on the Commission's failure to consult the Medical Advisory Committee.
B. Reasoned justification
The appellants assert that, despite the Supplemental Preamble, the Commission's attempt to provide a reasoned justification for the 2002 fee guidelines still falls short. Appellants' main complaint is that the Supplemental Preamble does not explain why the information used by the Commission justifies reducing reimbursement to certain health-care providers, resulting in the 125% figure. They assert that the Commission has provided no "factual basis" for the fee guidelines. See Tex. *353 Gov't Code Ann. § 2001.033(a)(1)(B) (West 2000).
An agency rule is voidable unless the agency adopts it in substantial compliance with the requirements of the APA, including the requirement of a reasoned justification. Id. § 2001.033(a)(1), § 2001.035(a) (West 2000). A reasoned justification must include "a summary of the factual basis for the rule as adopted which demonstrates a rational connection between the factual basis for the rule and the rule as adopted." Id. § 2001.033(a)(1).
To substantially comply with the reasoned-justification requirement, the four corners of the agency's final notice must present the agency's justification in a relatively clear, precise, and logical fashion. Reliant, 62 S.W.3d at 840. This Court has held that an agency's order substantially complies with the reasonedjustification requirement if it accomplishes the legislative objectives underlying the requirement and comes fairly within the character and scope of each of the statute's requirements in concise, specific, and unambiguous terms. Patient Advocates of Tex. v. Texas Workers Comp. Comm'n, 80 S.W.3d 66, 73 (Tex.App.-Austin 2002, pet. granted) (citing Methodist Hosps. v. Industrial Accident Bd., 798 S.W.2d 651, 657-59 (Tex.App.-Austin 1990, writ dism'd w.o.j.)). The APA was designed to compel an administrative agency to articulate its reasoning and, in the process, more thoroughly analyze its rules. Id. (citing National Ass'n of Indep. Insurers v. Texas Dep't of Ins., 925 S.W.2d 667, 671-72 (Tex. 1996) (NAII)). Requiring an agency to demonstrate a rational connection between the facts before it and the agency's rule promotes public accountability and facilitates judicial review. Id.
We review a challenge to the reasoned-justification requirement under an "arbitrary and capricious" standard, with no presumption that facts exist to support an agency's order. Reliant, 62 S.W.3d at 840; Texas Hosp. Ass'n v. Texas Workers' Comp. Comm'n, 911 S.W.2d 884, 887 (Tex.App.-Austin 1995, writ denied). In applying an "arbitrary and capricious" test to agency rulemaking, we examine whether the agency's explanation of the facts and policy concerns relied on in adopting the rule demonstrates that the agency considered all the factors relevant to the objectives of the agency's delegated rulemaking authority and engaged in reasoned decision making. Reliant, 62 S.W.3d at 842 (citing Railroad Comm'n v. ARCO Oil & Gas Co., 876 S.W.2d 473, 491 (Tex.App.-Austin 1994, writ denied)).
Appellants primarily insist that the "reasoned justification" does not indicate how or why the Commission arrived at the 125% figure to create the Texas conversion factor. Our review of the Supplemental Preamble, however, indicates ample reasoning to support the Commission's decision. In the Supplemental Preamble, the Commission explained that its staff determined that the conversion factor needed to be somewhere between 100 and 140% of the Medicare factor, as the 1996 fee guidelines produced reimbursements that were equivalent to 140% of the then-current Medicare factor, and the legislature had directed the Commission to lower costs. See Supp. Preamble 12,312-314; 12,316. Thus, the Commission found that a legitimate means to achieve the statutory mandate of effective cost control was to lower the premium as far as would be consistent with the safety margin needed to cover the extra administrative expenses of the workers' compensation program and to provide access to care. See id. 12,337. The Commission's staff then prepared spreadsheets comparing the impact of various conversion factors between 100 and 140% of the Medicare factor on total medical costs and *354 on different service categories. See id. 12,313. The Commission's Executive Director, Richard F. Reynolds, testified that his staff had allotted estimated 5% increments as important components of the Texas workers' compensation program, adding and subtracting these increments from a conversion factor of 100% of Medicare as was appropriate.[7]
The Supplemental Preamble explains why a single conversion factor, as opposed to multiple conversion factors, works bestthe single factor will help prevent over-utilization of some services and under-utilization of others. See id. 12,327. With respect to meeting the statutory requirements that the fee schedule achieve quality of care and be fair and reasonable, the Commission cites studies and reports noting the extra administrative costs associated with a workers' compensation program to support its conclusion that 125% is an appropriate conversion factor. An independent study conducted by a physician, Dr. Mark Brinker, indicates that the extra expenses and burdens of a workers' compensation program would be adequately covered by a 125% conversion factor. See id. 12,328-329. A consulting firm, Pershing Yoakley & Associates, P.C., prepared a report that also indicated that a payment of 125% of Medicare would be more than sufficient to offset the additional administrative expenses. See id. 12,324.
The Commission cites surveys indicating that patients have generally not had access-to-care problems under the Medicare system; thus, reasons the Commission, patients will similarly have minimal problems under the workers' compensation program, which pays physicians more than Medicare., See id. 12,323; 12,335. A consulting company performed a study that concluded that at 109% of Medicare, there is no access-to-care problem. Id. 12,335-336. Also, the Commission cites reports and studies indicating that effective care is not necessarily equivalent to expensive care and states that no study has been found showing that paying higher fees provides higher quality care once access to care is obtained. Id. 12,314-315; 12,331-332. Thus, concluded the Commission, the 2002 fee guidelines adequately address the statutory mandates to ensure the quality of care yet achieve effective medical cost control.
Lastly, we note that the Commission was not required to demonstrate that 125% is the only reasonable or factually defensible policy alternative. Rather, it needed only to demonstrate that there is a rational connection between its conversion factor and the factual material it has received or otherwise considered, and that 125% is a legitimate and factually defensible choice that complies with the multiple statutory requirements of the labor code. See NAII, 925 S.W.2d at 669. The legislative objective of the reasoned-justification requirement is to give notice of the factual, policy, and legal bases for the rule, in light of all the evidence gathered by the agency and submitted by interested parties during the comment period. Patient Advocates, 80 S.W.3d at 74. The Commission's initial preamble, bolstered by its Supplemental Preamble, clearly and exhaustively explains the Commission's reasons for choosing a conversion factor that is a 125% multiplier of the Medicare conversion factor. Under the "arbitrary and capricious" standard, we conclude that the Commission substantially complied with the reasoned-justification *355 requirement of the APA.
C. Public notice and comment
Appellants contend that after the district court remanded the 2002 fee guidelines to the Commission to comply with the reasoned-justification requirement, the Commission was required to provide public notice and a comment period upon publishing the Supplemental Preamble. See Tex. Gov't Code Ann. § 2001.040 (West Supp. 2004) ("[T]he court may remand the rule, or a portion of a rule, to the agency and, if it does so remand, shall provide a reasonable time for the agency to either revise or readopt the rule through established procedure." (emphasis added)). Appellants assert that "established procedure" required the Commission to publish a new notice of proposed rulemaking because the reasoning provided in the Supplemental Preamble was new and thus has never been subject to public notice and comment.
Although the order adopting a rule must contain the reasoned justification or factual basis for the rule, see id. § 2001.033, no statute requires the Commission to include that statement of the factual basis for the rule in the public notice of proposed rulemaking. See id. § 2001.024 (West 2000) (providing contents of public notice when agency proposes rule). Thus, failure to include in the notice of a proposed rule a statement of the factual basis that will support the rule as adopted cannot violate "established procedure," simply because there is no such established procedure.
In some cases, a new notice of rulemaking will be required if after initial publication, a proposed rule is amended so that it affects persons other than those originally put on notice. Patient Advocates, 80 S.W.3d at 75; State Bd. of Ins. v. Deffebach, 631 S.W.2d 794, 801 (Tex.App.-Austin 1982, writ ref'd n.r.e.). However, should the agency amend the proposed rule such that no one other than those previously given notice would be affected, no further purpose would be served by requiring republication of the proposed rule. Patient Advocates, 80 S.W.3d at 75. Because there was no change in the rule's text after the Commission added the Supplemental Preamble, the rule could not have affected any persons beyond those originally put on notice. The publication of the initial preamble placed the same persons on notice regarding the same subject matter as did the publication of the Supplemental Preamble. By drafting the Supplemental Preamble, the Commission did not ignore or substantially alter the proposed rule to an extent that a new or different group of persons was affected. See id. Therefore, we hold that a new period of notice and comment was not required in this case. We overrule the appellants' fourth issue.
TAB's standing
Dr. Richey separately challenges the TAB's standing in this matter for the first time on appeal. The TAB counters that Dr. Richey waived any objection to TAB's intervention in this suit by not objecting below and obtaining a ruling. Jones v. Springs Ranch Co., 642 S.W.2d 551, 554 (Tex.App.-Amarillo 1982, no writ); see also Guaranty Fed. Sav. Bank v. Horseshoe Operating Co., 793 S.W.2d 652, 657 (Tex.1990). Dr. Richey rejoins that because standing is a component of subject-matter jurisdiction, it cannot be waived and may be raised for the first time on appeal. See Texas Ass'n of Bus. v. Texas Air Control Bd., 852 S.W.2d 440, 445 (Tex.1993). Although we agree with Dr. Richey that standing implicates subject-matter jurisdiction and that subjectmatter jurisdiction may be raised at any *356 time, see id., the cases he cites pertain to whether a plaintiff has standing to bring a cause of action. See, e.g., id. at 446-47. Here, we have a different issue altogether: whether and under what circumstances a defendant may intervene. Thus, the standing analysis of Texas Association of Business is inapplicable, and we must determine whether the trial court erred in allowing the TAB to intervene.
An intervenor is not required to secure the court's permission to intervene in a cause of action or prove that it has standing; rather, a party who opposes the intervention has the burden to challenge it by a motion to strike. See Guaranty Fed., 793 S.W.2d at 657; see also Tex.R. Civ. P. 60 ("Any party may intervene by filing a pleading, subject to being stricken out by the court for sufficient cause on the motion of any party."); Tex.R. App. P. 33.1 (to preserve complaint for appellate review, record must contain timely objection and ruling or refusal to rule). Because Dr. Richey did not object to TAB's intervention at the trial court, he has not preserved the issue for our review. See Jones, 642 S.W.2d at 554. We overrule Dr. Richey's issue concerning TAB's standing.

CONCLUSION
For the foregoing reasons, we affirm the judgment of the district court declaring the 2002 fee guidelines valid and denying appellants' request for a permanent injunction against the guidelines' implementation.
NOTES
[1]  When their interests diverge, we will refer to the appellants individually.
[2]  The CMS was previously known as the Health Care Financing Administration (HCFA). We will use the current title throughout this opinion.
[3]  That formula reads:

Payment = [RVU work × GPCI work] + [RVU practice expense × GPCI practice expense] + [RVU malpractice × GPCI malpractice] × conversion factor.
66 Fed.Reg. 55,248 (Nov. 1, 2001) (codified at 42 C.F.R. §§ 414 .2, .20, .26).
The terms used in the formula stand for the following values: RVU is the relative value unit, which is a nationally uniform relative value assigned by the CMS to each service. There are three relevant RVUs: (1) an RVU for physician work, (2) an RVU for practice expenses, and (3) an RVU for malpractice expenses. GPCI is the geographic practice cost index. When multiplied by the RVUs, the GPCIs reflect the relative costs of practice expenses, malpractice insurance, and physician work in a particular area compared to the national average for each component. The conversion factor converts the relative values into payment amounts. See id.
[4]  The Medical Advisory Committee is composed of numerous members, all appointed by the Commission, representing various interest groups (i.e., health care facilities, doctors, medical-equipment suppliers, employers, employees, insurance carriers, and the general public). See Tex. Lab.Code Ann. § 413.005(b) (West Supp.2004).
[5]  The court's order remanded the rule to the Commission, pursuant to government code section 2001.040, so that "it may either revise or readopt the rule through established procedure." See Tex. Gov't Code Ann. § 2001.040 (West Supp.2004). The court's order also noted: "based on the evidence adduced at the hearing, the Court is unable to conclude that the facts and data necessary to provide a reasoned justification for the rule are now in existence."
[6]  The only reference in appellants' briefs about the constitutionality of the 2002 fee guidelines appears in a citation to a legal standard relating to arbitrariness and capriciousness: "A rule that lacks a legitimate factual basis and/or legal basis is arbitrary and capricious and a denial of due process. Bullock v. Hewlett-Packard Co., 628 S.W.2d 754, 757 (Tex. 1982); McCarty v. Texas Parks & Wildlife Dep't, 919 S.W.2d 853, 854-55 (Tex.App.-Austin 1996, no writ)." (Emphasis added.) Appellants have failed to adequately brief this complaint, and it is therefore waived. Wilkinson v. Dallas/Ft. Worth Int'l Airport Bd., 54 S.W.3d 1, 18 (Tex.App.-Dallas 2001, pet. denied), cert. denied, 534 U.S. 1128, 122 S.Ct. 1065, 151 L.Ed.2d 968 (2002).
[7]  For example, an estimated 5% increment was added as an incentive to provide for the availability of quality care to injured workers, while an estimated 5% increment was subtracted due to the security of payment afforded by the workers' compensation commission. See 27 Tex. Reg. 12,316 (Dec. 27, 2002).