Jamie Harvel and the Austin Police Association v. Texas Department of Insurance - Division of Workers' Compensation, and Commissioner Rod Borderlon, in His Official Capacity

NUMBER 13-14-00095-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG

JAMIE HARVEL AND THE AUSTIN Appellants,
POLICE ASSOCIATION,

v.

TEXAS DEPARTMENT OF INSURANCE-
DIVISION OF WORKERS’ COMPENSATION,
AND COMMISSIONER ROD BORDERLON,
IN HIS OFFICIAL CAPACITY, Appellees.

On appeal from the 53rd District Court
of Travis County, Texas.

OPINION1
Before Justices Benavides, Perkes and Longoria

1 On motion by appellants, the Court, sitting en banc, withdraws its memorandum opinion and
judgment issued on May 21, 2015, designates that memorandum opinion as an “opinion,” and reissues said
opinion without further change. See TEX. R. APP. P. 47.6.
 Opinion by Justice Longoria
Officer Jamie Harvel and the Austin Police Association, appellants, bring this

interlocutory appeal challenging a plea to the jurisdiction granted in favor of appellees,

the Division of Workers’ Compensation of the Texas Department of Insurance (“the

Division”) and the Commissioner of Workers’ Compensation Ryan Brannan, in his official

capacity.2 We affirm the trial court’s order granting the plea and dismissing for lack of

jurisdiction.

I. BACKGROUND3

The Austin Police Department normally assigned Officer Harvel to work at the

police station located in downtown Austin. In May of 2012, he was temporarily reassigned

to a training camp located in a different part of Austin to serve as a firearms instructor.

On the morning of May 4, 2012, Officer Harvel was traveling from his home to that training

camp on his personal motorcycle. A car attempting to turn left failed to yield the right of

way and collided with Officer Harvel, who sustained “significant injuries” as a result.

The City of Austin, which self-insures, denied Officer Harvel’s claim for workers’s

compensation benefits. Officer Harvel challenged that decision and received a contested

case hearing before a Division hearing officer. See TEX. LAB. CODE ANN. § 410.151 (West,

Westlaw through 2013 3d C.S.). The hearing officer issued an order that denied coverage

and made findings of fact and conclusions of law that Officer Harvel was not acting within

2 At the time appellants perfected this appeal the Commissioner of Workers’ Compensation was
the Hon. Rod Borderlon. Pursuant to Rule 7.2, we automatically substitute the name of his successor in
that office, the Hon. Ryan Brannan. See TEX. R. APP. P. 7.2.

3This case is before this Court on transfer from the Third Court of Appeals in Austin pursuant to a
docket-equalization order issued by the Supreme Court of Texas. See TEX. GOV’T CODE ANN. § 73.001
(West, Westlaw through 2013 3d C.S.).

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the course and scope of his employment at the time of his injury. Officer Harvel

challenged the order, but it became final after the Division appeals panel did not enter a

decision. See id. § 410.204(c) (West, Westlaw through 2013 3d C.S.) (providing that the

order of a hearing officer in a contested case becomes final if the appeals panel fails to

rule on the claimant’s challenge to the order).

Officer Harvel filed suit for judicial review of the Division’s final order in Travis

County district court. See id. § 410.251 (authorizing a suit for judicial review of a final

order of the Division in a contested case hearing) (West, Westlaw through 2013 3d C.S.).

Officer Harvel’s suit named appellees and the City of Austin as defendants. Officer Harvel

requested that the trial court overturn the Division’s final order and determine that he was

in the course and scope of his employment when another person illegally turned in front

of him and caused his injuries. He challenged all adverse “findings, conclusions and

decisions” of the Division and requested the trial court to determine that he is entitled to

workers’s compensation benefits because his injuries were work-related. In the same

pleading, Officer Harvel sought two declarations under the Uniform Declaratory Judgment

Act (UDJA). See generally TEX. CIV. PRAC. & REM. CODE ANN. § 37.001–.011 (West,

Westlaw through 2013 3d C.S.) (providing the procedures for seeking a declaratory

judgment). Officer Harvel requested a declaration that under the Texas Workers’

Compensation Act and the “Texas Peace Officer Statutes” a peace officer “is immediately

in the course and scope of their employment upon observing an illegal act especially

within their jurisdiction.” See TEX. CODE CRIM. PROC. ANN. art. 2.12 (West, Westlaw

through 2013 3d C.S.).4 Officer Harvel sought a second declaration that employer-

4 Article 2.13 of the Texas Code of Criminal Procedure provides that it is “the duty of every peace
officer to preserve the peace within the officer's jurisdiction” and that all peace officers shall “in every case

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directed travel for purposes of the Texas Workers’ Compensation Act “need not be just

from one work place to another location but that an employee traveling at the direction of

the employer from home to a specially assigned work location is in the course and scope

of his employment while traveling.”

Appellees filed a plea to the jurisdiction asserting that they are not proper parties

to Officer Harvel’s suit for judicial review and that sovereign immunity bars Officer Harvel’s

requests for declaratory relief. The Austin Police Association (“the Association”)5 filed a

plea in intervention and a request for declaratory relief seeking the same declarations as

Officer Harvel. After the Association intervened, appellees filed a second plea to the

jurisdiction incorporating the arguments in their first plea and further asserting that the

Association had no standing to seek a declaratory judgment.

The trial court granted appellees’s plea to the jurisdiction and dismissed

appellants’s claims against appellees in both suits.6 Appellants timely brought this

interlocutory appeal. See TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(8) (West,

Westlaw through 2013 3d C.S.) (permitting an interlocutory appeal of an order granting

or denying a plea to the jurisdiction by a government unit).

II. STANDARD OF REVIEW & APPLICABLE LAW

A plea to the jurisdiction challenges a trial court’s subject matter jurisdiction over a

case. City of Dallas v. Carbajal, 324 S.W.3d 537, 538 (Tex. 2010) (per curiam). Whether

subject matter jurisdiction exists is a question of law that we review de novo. Id.

authorized by the provisions of this Code, interfere without warrant to prevent or suppress crime.” TEX.
CODE CRIM. PROC. ANN. art. 2.13 (West, Westlaw through 2013 3d C.S.).

5 The Association described itself in its plea in intervention as “being composed of over 1,600 police

officers” employed by the City of Austin, including Officer Harvel.

6 The City of Austin did not file a plea to the jurisdiction and is not a party to this appeal.

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 The burden is on the plaintiff to demonstrate the trial court’s jurisdiction. Heckman

v. Williamson County, 369 S.W.3d 137, 150 (Tex. 2012). When a plea to the jurisdiction

challenges the pleadings, our task is to determine if the pleader has alleged facts that

affirmatively demonstrate the trial court’s jurisdiction. Tex. Dep’t of Parks & Wildlife v.

Miranda, 133 S.W.3d 217, 226 (Tex. 2004). We begin our analysis of a plea to the

jurisdiction with the live pleadings. Heckman, 369 S.W.3d at 150. We may also consider

evidence submitted to negate the existence of jurisdiction and must do so when the

evidence necessarily resolves the jurisdictional issue. Id. We construe the pleadings

liberally, accepting all factual allegations as true, and look to the intent of the pleader. Id.

We must grant the plea if the pleadings affirmatively negate the existence of jurisdiction.

Miranda, 133 S.W.3d at 227. If the pleadings do not contain sufficient facts to

demonstrate jurisdiction but also do not affirmatively negate it, the issue is one of pleading

sufficiency. Id.

Sovereign immunity generally deprives the trial court of jurisdiction over a lawsuit

in which the party has sued the State or a state agency unless the Legislature has waived

immunity. Tex. Parks & Wildlife Dep’t. v. Sawyer Trust, 354 S.W.3d 384, 388 (Tex. 2011).

The UDJA is not a general waiver of sovereign immunity but does provide a narrow waiver

of immunity for claims challenging the validity of ordinances or statutes. Id.; City of El

Paso v. Heinrich, 284 S.W.3d 366, 373 n.6 (Tex. 2009). However, the UDJA does “not

waive the state's sovereign immunity when the plaintiff seeks a declaration of his or her

rights under a statute or other law.” Tex. Dep’t of Transp. v. Sefzik, 355 S.W.3d 618, 621

(Tex. 2011) (per curiam) (citing Heinrich, 284 S.W.3d at 372–73); accord Abbott v. G.G.E,

No. 03-11-00338-CV, ___ S.W.3d ____, 2015 WL 1968262, at *13 n.14 (Tex. App.—

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Austin Apr. 30, 2015, no. pet. h.). Related to this rule is the ultra vires exception, which

permits private parties to bring claims against state officials for nondiscretionary acts

unauthorized by law. Sefzik, 355 S.W.3d at 621. Such lawsuits are not “against the

State” and therefore not barred by sovereign immunity. Id.; see Heinrich, 284 S.W.3d at

373.

III. OFFICER HARVEL’S SUIT FOR JUDICIAL REVIEW

Officer Harvel’s petition sought both judicial review of the Division’s final order

denying him workers’s compensation benefits and a declaratory judgment. Judicial

review of a final agency order and a UDJA action are separate proceedings authorized

and governed by different statutes. See TEX. LAB. CODE ANN. § 410.251 (authorizing

judicial review of a final order of the Division once the claimant has exhausted all

administrative remedies); TEX. CIV. PRAC. & REM. CODE ANN. § 37.003 (authorizing a suit

for a declaratory judgment). Appellees filed a plea to the jurisdiction challenging the trial

court’s jurisdiction over them in both suits, but appellants did not address why appellees

are proper parties to Officer Harvel’s suit for judicial review as distinguished from

appellants’s UDJA action in their briefs to this Court. The appellant’s brief must contain

a clear and concise argument for the party’s contest accompanied by appropriate citations

to authorities and to the record. TEX. R. APP. P. 38.1(i); see Strange v. Cont'l Cas. Co.,

126 S.W.3d 676, 678 (Tex. App.—Dallas 2004, pet. denied) (“An issue on appeal

unsupported by argument or citation to any legal authority presents nothing for the court

to review.”). To the degree that Officer Harvel raises an issue that appellees are proper

parties to his suit for judicial review, we overrule it as inadequately briefed. See TEX. R.

APP. P. 38.1(i); Strange, 126 S.W.3d at 678.

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 IV. DECLARATORY RELIEF

We next turn to appellants’s argument that sovereign immunity does not bar their

UDJA action against the Division and the Commissioner.

Appellants sought two declarations under the UDJA: (1) that a peace officer who

witnesses an illegal act is immediately within the course and scope of his or her

employment; and (2) that employer-directed travel includes an “employee traveling at the

direction of the employer from home to a specially assigned work location.” Sovereign

immunity bars both claims because appellants seek a declaration of their rights under a

statute but do not challenge the validity of any statute or ordinance. See Sefzik, 355

S.W.3d at 621. Appellants assert that the Texas Supreme Court permitted a similar UDJA

action to continue in Texas Lottery Commission v. First State Bank of DeQueen, but that

case is distinguishable and does not support appellants’s argument. 325 S.W.3d 628,

633–34 (Tex. 2010). Texas Lottery Commission involved whether provisions of the

Uniform Commercial Code invalidated certain sections of the Texas Lottery Act. Id. at

634. Thus, Texas Lottery Commission fits into the narrow UDJA waiver of sovereign

immunity for suits challenging the validity of statutes which the Texas Supreme Court

recognized in Heinrich. See id. at 635 (“Because the claim at issue here is not one

involving a government officer's action or inaction, but is a challenge to a statute, this is

not an ultra vires claim to which a government officer should have been made a party”);

see also Heinrich, 284 S.W.3d 372–73. Appellants’s UDJA action is more akin to the one

the Austin Court of Appeals addressed in Trinity Settlement Services, LLC v. Texas State

Securities Board, where Trinity sought a declaratory judgment of its rights and status

under the Texas Securities Act. 417 S.W.3d 494, 503 (Tex. App.—Austin 2013, pet.

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denied). The court of appeals held that sovereign immunity barred Trinity’s claims for

declaratory judgment against the Texas State Securities Board because Trinity sought

only a declaration of its rights and status under the Act. Id. (citing Sefzik, 355 S.W.3d at

621). Appellants seek similar relief in the case at bar: a declaration of their rights under

a statute. Without a legislative waiver, sovereign immunity bars appellants’s suit.7

Appellants have not directed us to any legislative waiver of immunity for their suit, and we

have found none. We conclude that the trial court did not err in granting appellees’s plea

to the jurisdiction.8 See Sefzik, 355 S.W.3d at 621; Trinity Settlement Servs., 417 S.W.3d

at 503; see also City of McKinney v. Hank's Rest. Group, L.P., 412 S.W.3d 102, 113 (Tex.

App.—Dallas 2013, no pet.) (holding that the UDJA did not waive immunity for the

appellee’s claims “seeking interpretations of City ordinances, declarations of HRG's

statutory rights and declarations that City officials have violated or are violating the law”).

When we hold that the trial court is without subject-matter jurisdiction, we allow a

plaintiff to replead if the defect can be cured. See Miranda, 133 S.W.3d at 226–227. We

will not afford Officer Harvel an opportunity to replead because the relief requested under

the UDJA Act mirrors the relief he requested in the suit for judicial review. When a plaintiff

“has invoked a statutory means of attacking an agency order, a trial court lacks jurisdiction

7 We note that unlike Sefzik, appellants brought suit against a state official, the Commissioner of

Workers’ Compensation. However, appellants do not allege that the Commissioner acted ultra vires or
request that we remand to afford appellants an opportunity to plead an ultra vires suit. See Tex. Dep’t. of
Transp. v. Sefzik, 355 S.W.3d 618, 623 (Tex. 2011) (per curiam) (affirming a plea to the jurisdiction but
remanding to permit the plaintiff to plead an ultra vires suit).

8 Appellants assert numerous times in their appellate briefs that a UDJA action in which the
Commissioner and the Division are parties is the only way to bind the Commissioner and the Division to
apply the declarations appellants seek in subsequent contested case proceedings. Appellants do not
explain why the Division and the Commissioner would not be bound to apply a district court decision
agreeing with Officer Harvel that the Texas Code of Criminal Procedure places police officers in the course
and scope of their employment as soon as they witness a violation of the law. In any event, we have
concluded that the trial court correctly concluded that it lacked jurisdiction over this appeal. A court without
jurisdiction has no choice but to dismiss the case. See State v. Morales, 869 S.W.2d 941, 949 (Tex. 1994).

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over an additional claim under the UDJA that would merely determine the same issues

and provide what is substantively the same relief that would be provided by the other

statutory remedy.” Tex. Dep’t of State Health Servs. v. Balquinta, 429 S.W.3d 726, 746

(Tex. App.—Austin 2014, pet. dism’d); SWEPI LP v. R.R. Com'n of Tex., 314 S.W.3d 253,

268 (Tex. App.—Austin 2010, pet. denied). Both Officer Harvel’s suit for judicial review

and his UDJA action seek rulings that (1) a peace officer is in the course and scope of

employment as soon as the officer witnesses an illegal act and (2) that employer-directed

travel for purposes of the Texas Workers’ Compensation Act includes travel from the

employee’s home to a specially-assigned work location. If Officer Harvel was successful

on either suit he would receive substantively the same relief: reversal of the final order

denying him workers’s compensation benefits. The pleadings have affirmatively negated

jurisdiction because the declarations Officer Harvel seeks under the UDJA action are

duplicative of his suit for judicial review. See Balquinta, 429 S.W.3d at 746; SWEPI, 314

S.W.3d at 268.

We will not afford the Association an opportunity to replead because the pleadings

conclusively demonstrate the absence of a justiciable controversy between the

Association and appellees. See Brooks v. Northglen Ass'n, 141 S.W.3d 158, 163–64

(Tex. 2004). The trial court has jurisdiction to address a suit for declaratory relief only if

a justiciable controversy exists regarding the rights and status of the parties actually

before the court and the declaration sought will actually resolve the controversy. Id. A

justiciable controversy involves a real and substantial conflict of tangible interests and not

merely a theoretical or hypothetical dispute. Bonham State Bank v. Beadle, 907 S.W.2d

465, 467 (Tex. 1995); see Trinity Settlement Servs., 417 S.W.3d at 505 (observing that a

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justiciable controversy does not exist if a case requires the trial court to “pass upon

hypothetical or contingent situations, or to determine questions not then essential to the

decision of an actual controversy, although such actions may in the future require

adjudication”). The Association seeks a declaration that would apply to all of its police

officers, but none of those officers except for Officer Harvel are before the Court. At best,

the Association has identified hypothetical disputes which are likely to occur between the

Division and its member officers in the future if one of the officers is injured. While it is

certainly possible that one of the Association’s member officers could be injured when

traveling to work in a manner similar to Officer Harvel’s experience, such an injury is

merely hypothetical at this point. See Bonham State Bank, 907 S.W.2d at 467. We

conclude that the pleadings affirmatively negate the existence of jurisdiction because the

Association has not shown that any possible injury is “imminent, direct, and immediate,

and not merely remote, conjectural, or hypothetical.” See Rea v. State, 297 S.W.3d 379,

383 (Tex. App.—Austin 2009, no pet.). We will not afford the Association an opportunity

to replead.

V. CONCLUSION

We affirm the trial court’s order granting the plea to the jurisdiction.

NORA LONGORIA,
Justice

Delivered and filed the
11th day of June, 2015.

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