Rosendo Morales v. Texas Department of Insurance-Division of Workers' Compensation, and Commissioner Ryan Brannan, in His Official Capacity

ACCEPTED
03-14-00808-CV
6243481
THIRD COURT OF APPEALS
AUSTIN, TEXAS
7/27/2015 5:28:11 PM
JEFFREY D. KYLE
CLERK
NO. 03-14-00808-CV

IN THE THIRD COURT OF APPEALS FILED IN
3rd COURT OF APPEALS
AUSTIN, TEXAS AUSTIN, TEXAS
_______________________________________
7/27/2015 5:28:11 PM
JEFFREY D. KYLE
ROSENDO MORALES, Clerk
Appellant,

v.

TEXAS DEPARTMENT OF INSURANCE-DIVISION OF WORKERS’
COMPENSATION AND COMMISSIONER RYAN BRANNAN,
IN HIS OFFICIAL CAPACITY,
Appellees.
_______________________________________

On Appeal from the 146th Judicial District Court, Cause No. 269,135-B;
before the Honorable Jack Weldon Jones
_______________________________________

APPELLEES’ BRIEF

KEN PAXTON ADRIENNE BUTCHER
Attorney General of Texas Assistant Attorney General
State Bar No. 24050363
CHARLES E. ROY Administrative Law Division
First Assistant Attorney General OFFICE OF THE ATTORNEY GENERAL
P. O. Box 12548, Capitol Station
JAMES E. DAVIS Austin, Texas 78711-2548
Deputy Attorney General for Telephone: (512) 463-1410
Civil Litigation Facsimile: (512) 320-0167
adrienne.butcher@texasattorneygeneral.gov
DAVID A. TALBOT, JR.
Chief, Administrative Law Division ATTORNEYS FOR APPELLEES

July 27, 2015 ORAL ARGUMENT NOT REQUESTED
 TABLE OF CONTENTS

Index of Authorities.................................................................................. iv

Statement of the Case .............................................................................. ix

Statement Regarding Oral Argument ...................................................... x

Issue Presented ........................................................................................ xi

Appellees’ Brief .......................................................................................... 1

Statement of Facts .................................................................................... 2

I. Regulatory Background .......................................................... 2

II. Morales’s Complaints .............................................................. 4

Summary of the Argument ....................................................................... 6

Argument ................................................................................................... 8

I. Morales’s Claim For Declaratory Relief Against the
State Appellees is Barred by Sovereign Immunity. ............... 9

A. The UDJA Does Not Waive Immunity For
Statutory-Interpretation Claims Against a State
Entity.............................................................................. 9

B. Labor Code Section 410.255 Does Not Waive
Sovereign Immunity..................................................... 15

C. Morales Failed to Plead a Proper Ultra Vires
Claim and Cannot Cure this Defect. ........................... 16

D. Morales’s “Need to Bind the Division” Argument
Lacks Merit. ................................................................. 19

II. Morales Seeks An Impermissible Redundant Remedy
Through His UDJA Action. ................................................... 21

ii
 III. Morales Seeks Impermissible Advisory Opinions. ............... 22

Prayer ...................................................................................................... 24

Certificate of Compliance ........................................................................ 26

Certificate of Service ............................................................................... 26

iii
 INDEX OF AUTHORITIES

Cases

Am. Motorists Ins. Co. v. Fodge,
63 S.W.3d 801 (Tex. 2001) ................................................................. 2

Andrade v. NAACP of Austin,
345 S.W.3d 1 (Tex. 2011)................................................................ 18

Bd. of Trs. of Galveston Wharves v. O’Rourke,
405 S.W.3d 228 (Tex. App.—Houston [1st Dist.] 2013, no pet.).... 18

Beeman v. Livingston,
No. 13-0867, 2015 WL 4072404 (Tex. June 26, 2015) ............... 8, 18

Cf. Combs v. Tex. Civil Rights Project,
410 S.W.3d 529 (Tex. App.—Austin 2013, pet. denied)........... 16, 17

City of El Paso v. Heinrich,
284 S.W.3d 366 (Tex. 2009).................................................... passim

City of LaPorte v. Barfield,
898 S.W.2d 288 (Tex. 1995)............................................................ 14

City of McKinney v. Hank’s Restaurant Grp.,
412 S.W.3d 102 (Tex. App.—Dallas 2013, no pet.) .................. 10, 14

Cont’l Cas. Ins. Co. v. Functional Restoration Assocs.,
19 S.W.3d 393 (Tex. 2000)........................................................ 14, 15

Creedmoor-Maha Water Supply Corp. v. Tex. Comm’n on Envtl. Quality,
307 S.W.3d 505 (Tex. App.—Austin 2010, no pet.) ....................... 17

DeLeon v. Royal Indem. Co.,
396 S.W.3d 597 (Tex. App.—Austin 2010, rev’d on other grounds,
396 S.W.3d 527 (Tex. 2012)............................................................ 12

iv
Dir. of Dep’t of Agric. & Env’t v. Printing Indus. Ass’n,
600 S.W.2d 264 (Tex. 1980)............................................................ 10

Harvel v. Texas Dep't of Ins., Div. of Workers’ Comp., No. 13-14-00095-
CV, 2015 WL 3637823 (Tex. App.—Corpus Christi June 11, 2015,
no pet. h.) .............................................................................. x, 20, 22

Houston Lighting & Power Co. v. Dickinson Indep. Sch. Dist.,
641 S.W.2d 302 (Tex. App.—Houston [14th Dist.] 1982, writ ref’d
n.r.e.)............................................................................................... 19

Huey v. Huey,
200 S.W.3d 851 (Tex. App.—Dallas 2006, no pet.) ........................ 19

In re Crawford & Co.,
458 S.W.3d 920 (Tex. 2015) (per curiam) ........................................ 2

In re Sw. Bell Tel. Co., L.P.,
235 S.W.3d 619 (Tex. 2007)............................................................ 22

Jackson v. State Office of Admin. Hr’gs,
351 S.W.3d 290 (Tex. 2011)............................................................ 22

Kupchynsky v. Nardiello,
230 S.W.3d 685 (Tex. App.—Dallas 2007, pet. denied) ........... 18, 19

MBM Fin. Corp. v. Woodlands Operating Co., L.P.,
292 S.W.3d 660 (Tex. 2009)............................................................ 22

Mid-Century Ins. Co. v. Tex. Workers’ Comp. Comm'n,
187 S.W.3d 754 (Tex. App.—Austin 2006, no pet.) ................. 12, 13

Nat'l Am. Ins. Co. v. Tex. Prop. & Cas. Ins. Guar. Ass'n,
No. 03-09-00680-CV, 2013 WL 4817637 (Tex. App.—Austin Aug.
28, 2013, no pet.) (mem. op.) .......................................................... 12

v
Patel v. Tex. Dep’t of Licensing & Reg.,
No. 12-0657, 2015 WL 3982687
(Tex. June 26, 2015) ............................................................. 9, 10, 22

Patterson v. Planned Parenthood of Houston & Se. Tex., Inc.,
971 S.W.2d 439 (Tex. 1998)............................................................ 23

Prairie View A & M Univ. v. Chatha,
381 S.W.3d 500 (Tex. 2012).............................................................. 8

Rusk State Hosp. v. Black,
392 S.W.3d 88 (Tex. 2012)................................................................ 8

Short v. W.T. Carter & Bro.,
126 S.W.2d 953 (Tex. 1938)............................................................ 10

Smith v. 241st Dist. Ct. of Smith Cnty.,
No. 03-13-00719-CV, 2015 WL 1611703 (Tex. App.—Austin Apr. 9,
2015, no pet.) (mem. op.) ................................................................ 17

SWEPI LP v. R.R. Comm’n,
314 S.W.3d 253 (Tex. App.—Austin 2010, pet. denied)................. 22

Tex. Ass’n of Bus. v. Tex. Air Control Bd.,
852 S.W.2d 440 (Tex. 1993).............................................................. 8

Tex. Comm’n of Licensing & Reg. v. Model Search Am., Inc.,
953 S.W.2d 289 (Tex. App.—Austin 1997, no writ) ....................... 17

Tex. Dep’t of Ins. v. Reconveyance Servs., Inc.,
306 S.W.3d 256 (Tex. 2010)............................................................ 11

Tex. Dep’t of State Health Servs. v. Balquinta,
429 S.W.3d 726 (Tex. App.—Austin 2014, pet. dism’d) ................. 21

Tex. Dep’t of Transp. v. Sefzik,
355 S.W.3d 618 (Tex. 2011).................................................. 9, 12, 13

vi
Tex. Logos, L.P. v. Tex. Dep’t of Transp.,
241 S.W.3d 105 (Tex. App.—Austin 2007, no pet.) ....................... 18

Tex. State Bd. of Veterinary Med. Exam’rs v. Giggleman,
408 S.W.3d 696 (Tex. App.—Austin 2013, no pet.) ....................... 21

Tex. Dep't of Ins., Div. of Workers’ Comp. v. Lumbermens Mut. Cas. Co.,
212 S.W.3d 870 (Tex. App.—Austin 2006, pet. denied)..... 10, 11, 12

Tex. Lottery Comm'n v. First State Bank of DeQueen,
325 S.W.3d 628 (Tex. 2010)...................................................... 13, 14

Tex. Workers’ Comp. Ins. Fund v. Tex. Workers’ Comp. Comm'n,
124 S.W.3d 813 (Tex. App.—Austin 2003, pet. denied)................. 13

Trinity Settlement Servs., LLC v. Tex. State Sec. Bd.,
417 S.W.3d 494 (Tex. App.—Austin 2013, pet. denied)........... 23, 24

United States v. Morgan,
313 U.S. 409 (1941) ........................................................................ 20

Vanderwerff v. Tex. Dep't of Ins., Div. of Workers’ Comp. et al.,
No. 05-15-00195-CV (Tex. App.—Dallas filed Feb. 17, 2015). ........ x

VanderWerff v. Tex. Bd. of Chiropractic Exam’rs,
No. 03-12-00711-CV, 2014 WL 7466814 (Tex. App.—Austin Dec. 18,
2014, no pet.) (mem. op.) ...................................................... 7, 18, 24

vii
Statutes

Tex. Lab. Code Ann.
§ 402.001 ..................................................................................... 3, 19
§ 408.142(a) .................................................................................. 3, 4
§ 410.002 ....................................................................................... 2, 3
§ 410.151(a) ...................................................................................... 3
§ 410.151(b) ...................................................................................... 3
§ 410.169 ........................................................................................... 3
§ 410.202(a) ...................................................................................... 3
§ 410.251 ......................................................................... 3, 15, 20, 21
§ 410.254 ..................................................................................... 3, 15
§ 410.255 ..................................................................................... 6, 15
§ 410.255(a) ...................................................................................... 7
§ 410.301(a) .................................................................................. 4, 7
§ 410.302(b) ...................................................................................... 3

Tex. Gov't Code Ann.
§ 311.034 ................................................................................. passim
§ 2001.038 ......................................................................................... 9

Tex. Civ. Prac. & Rem. Code Ann.
§ 37.006(b) .................................................................................. 9, 14

Rules

Tex. R. App. P. 38.1(i).............................................................................. 18

viii
 STATEMENT OF THE CASE

Nature of the Case: Morales appeals the trial court’s grant of the State
Appellees’ plea to the jurisdiction. C.R. at 287. 1
In the proceedings below, Morales sought judicial
review of the Division’s administrative decision in a
contested-case hearing between Morales and Texas
Mutual Insurance Carrier (“TMIC”) regarding
Morales’s benefits. He also sought declaratory
judgment against the State Appellees and TMIC,
which is not a party to this interlocutory appeal.
C.R. at 49–52.

Trial Court: The Honorable Jack Weldon Jones, 146th Judicial
District Court, Bell County, Texas.

Course of Proceedings: Morales brought his judicial review suit and
declaratory judgment action against the State
Appellees and TMIC. C.R. at 4, 47. The State
Appellees filed a plea to the jurisdiction seeking
dismissal from the case as defendants and further
seeking dismissal of Morales’s claims for
declaratory relief. C.R. at 95. TMIC also filed a
plea to the jurisdiction. C.R. at 141.

Trial Court Disposition: The trial court granted both pleas to the jurisdiction.
C.R. at 287–88.

1 Citations to the Clerk’s Record are designated as “C.R. at,” followed by page number.
Unless individually designated, the term “State Appellees” refers collectively to the Texas
Department of Insurance, Division of Workers’ Compensation (individually, the “Division”) and
Commissioner Brannan, in his official capacity (individually, the “Commissioner”).

ix
 STATEMENT REGARDING ORAL ARGUMENT

The Thirteenth Court of Appeals recently decided the sole issue presented

here in a nearly identical appeal, Harvel v. Texas Department of Insurance, Division

of Workers’ Compensation, No. 13-14-00095-CV, 2015 WL 3637823 (Tex. App.—

Corpus Christi June 11, 2015, no pet. h.). See App. A. Harvel was represented by

the same attorney now representing Morales and presented the same issue and legal

arguments Morales now presents against the same State Appellees. After hearing

oral argument, the Harvel court issued a memorandum opinion that it subsequently

reissued as a published opinion, following the Division’s motion based on the

existence of this case and another similar case pending before the Fifth Court of

Appeals, Vanderwerff v. Texas Department of Insurance, Division of Workers’

Compensation et al., No. 05-15-00195-CV (Tex. App.—Dallas filed Feb. 17,

2015). 2 See App. B (Appellant Vanderwerff’s Brief reflecting nearly identical

arguments).

Because Harvel and case law from both this Court and the Texas Supreme

Court squarely address the sole issue Morales presents in this appeal, the Division

does not believe oral argument is necessary to aid the Court in deciding Morales’s

2 All cases state the same issue, and the respective appellants’ briefing—all of whom were
represented by the same counsel—is nearly identical, aside from minor edits and renumbered sub-
issues. In fact, portions of Morales’s Brief appear to have been recycled from the Vanderwerff
brief, despite their inapplicability here. See, e.g., Br. of Appellant 6 (erroneously stating that the
State Appellees intervened in this case, which was the case in Vanderwerff but not here).

x
issue. However, if the Court decides to hear argument, Appellees would welcome

the opportunity to orally present their case to the Court.

ISSUE PRESENTED

Morales sought judicial review of the Division’s decision regarding his

impairment rating in a workers’ compensation benefits dispute with TMIC. He also

sought a declaration under the Uniform Declaratory Judgments Act (“UDJA”) that

“spinal surgeries and the effects of such surgeries occurring prior to maximum

medical improvement must be considered in assigning impairment ratings under the

Texas Workers’ Compensation Act and under the AMA Guides and that any

impairment ratings that do not consider such surgeries are invalid.” C.R. at 53.

The issue in this interlocutory appeal is whether the trial court properly

dismissed Morales’s UDJA claim for lack of jurisdiction. Morales presents his

sole issue in 18 sub-issues, many of which overlap. In the interest of efficiency, the

State Appellees will address Morales’s arguments in three primary parts, arguing

that Morales’s claims against them: (1) are barred by sovereign immunity; (2) seek

an impermissible redundant remedy; and (3) are unripe requests for advisory

opinions.

xi
 NO. 03-14-00808-CV

IN THE THIRD COURT OF APPEALS
AUSTIN, TEXAS
_______________________________________

ROSENDO MORALES,
Appellant,

v.

TEXAS DEPARTMENT OF INSURANCE-DIVISION OF WORKERS’
COMPENSATION AND COMMISSIONER RYAN BRANNAN,
IN HIS OFFICIAL CAPACITY,
Appellees.
_______________________________________

On Appeal from the 146th Judicial District Court, Cause No. 269,135-B;
before the Honorable Jack Weldon Jones
_______________________________________

APPELLEES’ BRIEF

TO THE HONORABLE THIRD COURT OF APPEALS:

The State Appellees respectfully submit their brief in response to Morales’s

Appellant’s Brief. In support thereof, the State Appellees show as follows:

Texas law provides no general right to judicial review of executive action,

aside from constitutional claims. Underscoring that principle, the Texas Supreme

Court authorized the Legislature to waive the State’s sovereign immunity, and the

Legislature in turn has required that the courts strictly construe statutory waivers.

When a statute does clearly and unambiguously authorize suit against the State, a
1
party invoking that waiver must properly plead it. Additionally, a person cannot

unilaterally demand that a court opine on disputes that he or other unknown persons

have (or one day may have) with the State.

Morales’s claims run headlong into these jurisdictional obstacles. He

contends that the UDJA waives the State’s immunity for claims seeking a declaration

of his rights under various statutes, but this Court, the Texas Supreme Court, and

other Texas courts have already rejected that argument. The trial court, recognizing

the jurisdictional obstacles, correctly dismissed Morales’s claims for want of

jurisdiction, and this Court should affirm.

STATEMENT OF FACTS

I. REGULATORY BACKGROUND

The Texas Workers’ Compensation Act (the “Act”) provides a

“comprehensive system for resolving workers’ compensation claims.” In re

Crawford & Co., 458 S.W.3d 920, 923 (Tex. 2015) (per curiam). “The [Division]

has jurisdiction of disputes over income benefits, preauthorization of medical care,

and reimbursement of medical expenses.” Am. Motorists Ins. Co. v. Fodge, 63

S.W.3d 801, 803 (Tex. 2001) (footnotes omitted).

Chapter 410 of the Act governs multi-step proceedings “to determine the

liability of an insurance carrier for compensation for an injury or death under” the

Act. Tex. Lab. Code Ann. § 410.002 (West 2015). The first step in a dispute is
2
participation in a benefit review conference. See id. § 410.024(a). If the

conference does not resolve the dispute, a party “is entitled to a contested case

hearing” conducted by a hearing officer. Id. § 410.151(a). The hearing generally

may consider only issues that were raised or resolved at the conference. Id.

§ 410.151(b). The final step in the administrative process is to appeal the hearing

officer’s decision to an appeals panel. Id. § 410.202(a). Issues (and decisions) not

administratively appealed become final. See id. § 410.169. Only after completing

this administrative process may a party “aggrieved by a final decision of the appeals

panel” seek judicial review, and then only on issues presented during the

administrative dispute resolution process. Id. §§ 410.251, 410.302(b).

Significantly, the Division is not a party to a suits for judicial review, and

there is no clear and unambiguous legislative waiver of sovereign immunity against

the Division in cases seeking judicial review of its decisions. See Tex. Gov’t Code

Ann. § 311.034 (West 2013). The Legislature did provide the Division with a

statutory right to intervene in workers’ compensation cases. Tex. Lab. Code Ann.

§ 410.254. The intervention authority furthers the Division’s legislatively-

mandated duties to oversee the Workers’ Compensation Act. See id. § 402.001.

Nothing therein states a clear and unambiguous waiver of the State Appellees

immunity. See Tex. Gov’t Code Ann. § 311.034.

3
II. MORALES’S COMPLAINTS

In the underlying case, Morales sought workers’ compensation benefits

following a work-related injury. The only substantive, benefits-related issue before

the Division was Morales’s impairment rating, as assigned by the designated doctor

in his case. Impairment ratings impact the duration and amount of benefits that a

workers’ compensation claimant receives. See, e.g., Tex. Lab. Code Ann.

§ 408.142(a).

Morales disagreed with his designated doctor’s assigned impairment rating

and asked the Division to find one assigned by another medical doctor. See C.R. at

49, ¶¶ 10–11. The Division found that the preponderance of the evidence was not

contrary to the designated doctor’s impairment rating, and Morales sought judicial

review of that decision. C.R. at 9 (Appeal’s Panel January 27, 2014 Decision

adopting Hearing Officer’s Decision and Order); see also C.R. at 13-18 (Decision

and Order).

Morales timely filed a suit for judicial review of the Division’s decision. See

Tex. Lab. Code Ann. § 410.301(a); C.R. at 4. However, he also tacked a

declaratory judgment (UDJA) action onto his judicial review suit and subsequently

amended his pleadings, adding the State Appellees as alleged necessary party-

defendants. C.R. at 47. The State Appellees—a state agency and a state officer

sued in his official capacity for whom sovereign immunity has not been waived—
4
are not proper parties to either Morales’s judicial review suit or to his improper

UDJA claim. 3

Through his UDJA claim, Morales sought broad declarations regarding

impairment rating calculations in cases in which spinal surgeries have been

performed, proclaiming that his requested declaratory relief was necessary because

the State Appellees and TMIC “have misinterpreted and failed to properly apply the

law.” C.R. at 50, ¶ 13. The trial court is already reviewing the Division’s decision

through the statutorily authorized judicial review suit against TMIC before the trial

court. As discussed below, Morales ultimately seeks redundant relief to his judicial

review suit through an improper UDJA claim that fails to challenge the validity of a

statute or plead cognizable ultra vires actions. C.R. at 49, ¶¶ 12-18. He also

appears to seek prospective advisory relief, which the UDJA does not countenance.

Because of these defects, the State Appellees filed a plea to the jurisdiction,

as did TMIC. C.R. at 95, 141. The trial court granted the pleas after a hearing,

dismissed Morales’s UDJA action, and dismissed the State Appellees from the

remaining judicial review suit. C.R. at 287–88. This interlocutory appeal

followed.

3 Morales and TMIC, his former employer’s workers’ compensation insurance carrier, were
the proper parties to Morales’s judicial review suit. They remain parties to that suit, which is still
pending before the trial court.

5
 SUMMARY OF THE ARGUMENT 4

Morales ultimately seeks declaratory judgment to interpret statutes and

challenge the Division’s decision in his contested case against TMIC, which decision

the trial court is currently reviewing through the statutory process provided by the

Labor Code. The trial court correctly concluded that it lacked jurisdiction over

Morales’s appended UDJA claims, since he failed to overcome the State Appellees’

entitlement to sovereign immunity and sought improper redundant and prospective

remedies through his UDJA claim. It further correctly dismissed the State

Appellees from this suit, as no legislative waiver of sovereign immunity permits

Morales to hale the State Appellees as defendants into a judicial review suit of the

Division’s decisions.

In attempting to overcome his immunity bar, Morales incorrectly urges the

application of three immunity waivers, all of which fail. First, the UDJA does not

waive the State’s immunity for claims seeking an interpretation of, or a declaration

of rights under, a statute—yet that is the relief Morales expressly seeks. Second,

Labor Code section 410.255 does not waive immunity but merely prescribes how a

4 Morales incorrectly states in his Summary of the Argument that the State Appellees
intervened in this suit. Br. of Appellant 6–7. In fact, Morales named the State Appellees as
defendants and alleged necessary parties in his First Amended Petition, Request for Declaratory
Judgment & Request for Disclosure. C.R. at 47, 48 ¶ 5. The State Appellees never intervened
in this suit, and Morales’s statement is incorrect.
6
court reviews certain issues that were resolved in workers’ compensation appeals-

panel decisions. See Tex. Lab. Code Ann. § 410.255(a) (“For all issues other than

those covered under Section 410.301(a), judicial review shall be conducted in the

manner provided for judicial review of a contested case under Subchapter G, Chapter

2001, Government Code.”). Third, Morales failed to plead a proper ultra vires

claim because he included the wrong defendants; did not allege any actions by the

State Appellees that were outside their statutory authority 5; impermissibly targeted

the Commissioner’s Hearing Officer’s exercise of discretion; and made no effort to

show that his claims are viable. Finally, his requested declarations are

impermissible attempts to control state action.

Morales’s UDJA claims are also jurisdictionally barred because the issues

raised therein are also the subject of his judicial-review suit and precluded under the

redundant-remedies doctrine. He also seeks impermissible advisory opinions,

requesting sweeping declarations that go beyond any present or imminent dispute he

has with the State Appellees or TMIC. Courts cannot adjudicate such broad, unripe

claims.

5 VanderWerff v. Tex. Bd. of Chiropractic Exam’rs, No. 03-12-00711-CV, 2014 WL
7466814, at *2–3 n.4 (Tex. App.—Austin Dec. 18, 2014, no pet.) (mem. op.) (noting that “litigants
may not employ declaratory-judgment actions to obtain impermissible advisory opinions seeking
to interpret statutes or agency rules”).

7
 ARGUMENT

“Subject matter jurisdiction is essential to the authority of a court to decide a

case.” Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 443 (Tex. 1993).

To file suit against the State, a plaintiff must establish the State’s consent to suit, for

“sovereign immunity deprives courts of subject-matter jurisdiction.” Rusk State

Hosp. v. Black, 392 S.W.3d 88, 95 (Tex. 2012); Beeman v. Livingston, No. 13-0867,

2015 WL 4072404, at *5 (Tex. June 26, 2015) (“A plaintiff who sues the State must

demonstrate that the State has consented to the suit; otherwise the suit is barred by

sovereign immunity.”).

The Supreme Court has “repeatedly affirmed that any purported statutory

waiver of sovereign immunity should be strictly construed in favor of retention of

immunity.” Prairie View A & M Univ. v. Chatha, 381 S.W.3d 500, 513 (Tex.

2012); see Tex. Gov’t Code Ann. § 311.034 (“In order to preserve the legislature’s

interest in managing state fiscal matters through the appropriations process, a statute

shall not be construed as a waiver of sovereign immunity unless the waiver is

effected by clear and unambiguous language.”). Even where the State is not

immune, the burden remains on the plaintiff to show that no jurisdictional obstacles

exist. See Tex. Ass’n of Bus., 852 S.W.2d at 446.

Declaratory judgment suits, or UDJA actions, may only be brought where a

statute or rule or its application interferes with or impairs, or threatens to interfere
8
with or impair, a legal right or privilege of the plaintiff. Tex. Gov’t Code Ann.

§ 2001.038 (West 2008). The Texas Supreme Court has recently addressed UDJA

actions in two instructive cases, discussed below. Accordingly, the trial court

properly dismissed Morales’s UDJA claims.

I. MORALES’S CLAIM FOR DECLARATORY RELIEF AGAINST THE STATE
APPELLEES IS BARRED BY SOVEREIGN IMMUNITY.

A. The UDJA Does Not Waive Immunity For Statutory-
Interpretation Claims Against a State Entity.

Morales pursued declaratory relief “to properly construe, interpret, and

enforce applicable Texas statutes against the state agency and the head of the state

agency.” Br. of Appellant ix (Issue Presented); see also, e.g., id. at 3 (“This case

involves a proper request for declaratory judgment with a challenge to the DWC

Defendants [sic] improper enforcement of the law.”). The UDJA does not waive

immunity for these claims. At most, it waives immunity for challenges to “the

validity of” a statute. Tex. Civ. Prac. & Rem. Code Ann. § 37.006(b) (West 2014);

see Patel v. Tex. Dep’t of Licensing & Reg., No. 12-0657, 2015 WL 3982687, at *8–

9 (Tex. June 26, 2015); Tex. Dep’t of Transp. v. Sefzik, 355 S.W.3d 618, 621–22

(Tex. 2011) (clarifying that “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.”).

9
 A claimant may pursue declaratory relief against a state official in his official

capacity only when the official is alleged to have acted without legal authority or to

have failed to perform a purely ministerial act or when a statute or rule used by state

officers is unconstitutional. See Patel, 2015 WL 3982687 at *4; City of El Paso v.

Heinrich, 284 S.W.3d 366, 372 (Tex. 2009). When a plaintiff fails even to allege

such conduct, the suit is one against the State and should be dismissed. Dir. of

Dep’t of Agric. & Env’t v. Printing Indus. Ass’n, 600 S.W.2d 264, 265–66, 270 (Tex.

1980); Short v. W.T. Carter & Bro., 126 S.W.2d 953, 959, 962–63, 965 (Tex. 1938).

The Fifth Court of Appeals recently surveyed Texas Supreme Court law and held

that the UDJA “does not waive immunity against claims seeking a declaration of the

claimant’s statutory rights” or “against a claim that government actors have violated

the law.” City of McKinney v. Hank’s Restaurant Grp., 412 S.W.3d 102, 112 (Tex.

App.—Dallas 2013, no pet.). 6

Morales relies heavily on this Court’s decision in Texas Department of

Insurance, Division of Workers’ Compensation v. Lumbermens Mutual Casualty

Company, 212 S.W.3d 870 (Tex. App.—Austin 2006, pet. denied). See Br. of

6
Nothing in the Supreme Court’s recent Patel decision affects this conclusion. Patel
considered a due-course-of-law challenge to licensing statutes and regulations regarding eyebrow
threading. Patel, 2015 WL 3982687 at *1–2. The Supreme Court held that, because the
plaintiffs contested “the validity” of the laws, id. at *9 (emphasis added), the state entities were
not immune. By contrast, Morales does not dispute the validity of any statute. Thus, Patel is
immaterial.

10
Appellant 11. This reliance is misplaced, as Lumbermens is clearly distinguishable.

Lumbermens was a declaratory judgment action addressing Division-issued

advisories, which action had been severed from an underlying judicial review suit

applying the advisories to a particular case. Id. at 874. The advisories themselves

were at issue, and the insurance carrier plaintiffs sought a declaration that the

Division acted outside its authority in issuing them, alleging that the Division

improperly modified the Guides to the Evaluation of Permanent Impairment. Id.

This Court concluded that the carriers had properly pleaded an ultra vires

action that gave the trial court jurisdiction over their request for declaratory relief.

Id. at 875. Thus, Lumbermens is properly viewed as an ultra vires suit, not one for

which the UDJA itself waived immunity. 7 There are no advisories or ultra vires

actions at issue in this case. An ultra vires exception in a UDJA suit “must not

complaint of a government officer’s exercise of discretion, but rather must allege,

and ultimately prove, that the officer acted without legal authority or failed to

perform a purely ministerial act.” Tex. Dep’t of Ins. v. Reconveyance Servs., Inc.,

306 S.W.3d 256, 258 (Tex. 2010). Moreover, even if Lumbermens held what

7 Lumbermens allowed the claim to proceed against the Division, as opposed to the
Commissioner; Heinrich later clarified that ultra vires claims must be brought against a state
official not an agency. 284 S.W.3d at 372–73.

11
Morales claims, it cannot be squared with the Supreme Court’s subsequent Sefzik

and Heinrich decisions clarifying UDJA actions against the State. 8

Additionally, in National American Insurance Company v. Texas Property &

Casualty Insurance Guaranty Association (herein “NAIC”), on which Morales also

relies, the plaintiff’s petition included requests “to declare its rights and status under

certain statutory provisions.” No. 03-09-00680-CV, 2013 WL 4817637, at *4 (Tex.

App.—Austin Aug. 28, 2013, no pet.) (mem. op.). The NAIC case involved a

dispute originally between two insurance carriers over which of two companies

employed injured workers and was thus obligated to pay their benefits and which of

two conflicting statutes controlled. Id. at *2. The NAIC court never addressed

sovereign immunity under the UDJA. Thus, it is also distinguishable.

Similarly, Mid-Century Insurance Company v. Texas Workers’ Compensation

Commission, 187 S.W.3d 754 (Tex. App.—Austin 2006, no pet.), is an action

seeking a declaration that the Division had acted in excess of its statutory authority

8 Interestingly, while Morales relies on Lumbermens to claim this Court recognizes the type
of UDJA action he brings here, he also asserts that it was decided wrongly, citing DeLeon v. Royal
Indemnity Company, 396 S.W.3d 597 (Tex. App.—Austin 2010, rev’d on other grounds, 396
S.W.3d 527 (Tex. 2012). He states this Court attempted to distance itself from alleged
Lumbermens dicta that “the DWC and the DWC Commissioner have used . . . inappropriately to
try to exclude all spinal surgeries, even pre-MMI, from consideration (and this is evidently taught
to a number of designated doctors). Br. of Appellant 25–30. Again, the proper avenue for review
of the Division’s decisions—including the calculation of impairment ratings in spinal surgery
cases—is through the courts through a properly filed judicial review suit.

12
in relation to a Division rule. Therein, an insurance carrier sued for a declaration

that a Division-promulgated rule concerning lifetime income benefits exceeded its

statutory authority. Id. at 756. This case concerns no Division rule but rather the

Division’s adjudication of Morales’s contested administrative case.

In Texas Workers’ Compensation Insurance Fund v. Texas Workers’

Compensation Commission, 124 S.W.3d 813 (Tex. App.—Austin 2003, pet. denied),

although the Division challenged the trial court’s jurisdiction to issue a declaratory

judgment that Texas Mutual sought in connection with its suit for judicial review,

the court of appeals did not address whether a plaintiff can bring a UDJA claim to

interpret a statute. In fact, the court there sustained the State’s argument that the

district court erred by “allowing Texas Mutual to bring a declaratory-judgment

action when judicial-review remedies are expressly provided for under chapter 410.”

Id. at 819, 824–25. These cases fail to advance Morales’s arguments.

Morales also erroneously relies on Texas Lottery Commission v. First State

Bank of DeQueen, 325 S.W.3d 628 (Tex. 2010). Although some courts have

interpreted DeQueen to suggest that the UDJA waives the State’s immunity for suits

“involving statutory interpretation,” 325 S.W.3d at 634, the Supreme Court since

clarified that “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.” Sefzik,

355 S.W.3d at 621; Heinrich, 284 S.W.3d at 372–73 & n.6. As the Fifth Court of
13
Appeals recognized in Hank’s, the law on the UDJA’s waiver “evolv[ed]” since

DeQueen. Hanks, 412 S.W.3d at 111. It has not evolved to permit Morales’s

present UDJA action.

The case law restricting Morales’s UDJA action reflects sound, longstanding

public policy in Texas. Sovereign immunity waivers must be strictly construed and

“effected by clear and unambiguous language.” Tex. Gov’t Code Ann. § 311.034.

That principle “applies to both the existence and the extent of the waiver.” City of

LaPorte v. Barfield, 898 S.W.2d 288, 297 (Tex. 1995), superseded by statute on

other grounds. Nothing in section 37.006(b)’s text mentions challenges regarding

a statute’s interpretation or application, such as the challenge Morales admittedly

brings. Additionally, “[i]t is well recognized under Texas law that there is no right

to judicial review of an administrative order unless a statute provides a right or unless

the order adversely affects a vested property right or otherwise violates a

constitutional right.” Cont’l Cas. Ins. Co. v. Functional Restoration Assocs., 19

S.W.3d 393, 397 (Tex. 2000). Interpreting the UDJA to allow a plaintiff into court

any time he wants to challenge an agency’s action or interpretation would eviscerate

that well-recognized principle of Texas law.

For all the foregoing reasons, the trial court properly dismissed Morales’s

claims for lack of jurisdiction.

14
 B. Labor Code Section 410.255 Does Not Waive Sovereign Immunity.

Morales also incorrectly cites Labor Code section 410.255 as an independent

basis for waiver of the State’s immunity. Br. of Appellant 15–17. Section 410.255

does not waive the State’s immunity. Immunity waivers must employ “clear and

unambiguous language.” Tex. Gov’t Code Ann. § 311.034. Section 410.255 does

not even provide a right to judicial review, let alone clearly and unambiguously

waive the State Appellees’ immunity. Rather, it “simply prescribes the manner of

judicial review” granted by section 410.251. Cont’l Cas., 19 S.W.3d at 398.

Section 410.251 allows review only of “a final decision of the appeals panel”

(assuming the administrative process has been exhausted). Tex. Lab. Code Ann.

§ 410.251. There is no mention of waiver or even of mandatory joinder of the

Division or Commissioner.

That the Legislature did not waive the State’s immunity through section

410.255 (or section 410.251) makes sense in light of other Labor Code provisions.

Rather than making the State a party to judicial review suits, the Legislature provided

the Division with authority to intervene where it believed there was a possible

violation of applicable laws and rules. See id. § 410.254. That authority would be

largely superfluous if the Division could be dragged into court regardless of its

wishes. Appellees therefore remain immune to Morales’s claims.

15
 C. Morales Failed to Plead a Proper Ultra Vires Claim and Cannot
Cure this Defect.

Morales also appears to suggest that he can avail himself of the ultra vires

exception to sovereign immunity. Br. of Appellant 12–14. A plaintiff may assert

an ultra vires claim where a state officer is failing “to comply with statutory or

constitutional provisions.” Heinrich, 284 S.W.3d at 372. The “suit must not

complain of a government officer’s exercise of discretion, but rather must allege,

and ultimately prove, that the officer acted without legal authority or failed to

perform a purely ministerial act.” Id. The proper defendant is the state officer, not

the governmental entity, and the plaintiff may obtain only prospective injunctive

relief. Id. at 372, 374. Morales’s requests for declaratory relief do not fit these

strictures.

First, Morales named the wrong defendants. Since an ultra vires suit may

proceed only against an official, not an agency, the Division is clearly an improper

party. See id. Morales further fails to allege any actions by the Commissioner that

could even arguably support an ultra vires claim against him. Rather, Morales

complains of a decision by a Division appeals panel, not the Commissioner. See

id.; Cf. Combs v. Tex. Civil Rights Project, 410 S.W.3d 529, 538 (Tex. App.—Austin

2013, pet. denied) (“Injunctive relief is ‘not available to prevent commission of

wrongs not imminently threatened’ or to require general compliance with the law.”).

16
 Second, to the extent Morales complains about any administrative decisions

already rendered, ultra vires claims allow only prospective relief. See, e.g.,

Heinrich, 284 S.W.3d at 374 (explaining that ultra vires claim does not lie where

“[t]he only injury the [plaintiff] allege[s] has already occurred” (first alteration in

original) (citation and internal quotation marks omitted)); Smith v. 241st Dist. Ct. of

Smith Cnty., No. 03-13-00719-CV, 2015 WL 1611703, at *2 (Tex. App.—Austin

Apr. 9, 2015, no pet.) (mem. op.) (“[C]laims for injunctive and declaratory relief,

based on past actions, are retrospective claims.”); Combs, 410 S.W.3d at 537–38

(“[A]ny declaration as to whether [Comptroller’s] past conduct exceeded her legal

authority is purely retrospective in nature and therefore could not constitute valid

ultra vires relief.”).

Third, Morales at best complains about the State Appellees’ exercise of

discretion, for they plainly have authority to administer and interpret the Workers’

Compensation Act and its dispute-resolution procedures. His complaints,

generously read, would still be “allegations that [the agency] reached an incorrect or

wrong result when exercising its delegated authority, not facts that would

demonstrate [the agency] exceeded that authority.” Creedmoor-Maha Water

Supply Corp. v. Tex. Comm’n on Envtl. Quality, 307 S.W.3d 505, 517–18 (Tex.

App.—Austin 2010, no pet.); see also, e.g., Tex. Comm’n of Licensing & Regulation

v. Model Search Am., Inc., 953 S.W.2d 289, 292 (Tex. App.—Austin 1997, no writ)
17
(“[State officers] had the undoubted authority to interpret the Act’s provisions and

to make a decision in that regard. That they ‘might decide wrongly . . . does not

vitiate’ their authority to make a decision.” (citation omitted)); cf. VanderWerff,

2014 WL 7466814, at *3 (holding that plaintiff cannot use ultra vires claim through

UDJA to collaterally attack administrative decision). Morales improperly attempts

to control state action. 9

Finally, to properly invoke the ultra vires exception, Morales must show that

his claims are “viable.” Andrade v. NAACP of Austin, 345 S.W.3d 1, 11 (Tex.

2011); see Beeman, 2015 WL 4072404, at *15 (dismissing ultra vires claim for want

of jurisdiction because plaintiff failed to show that defendant official violated

statutory duty). He makes essentially no effort to meet this requirement. Although

he recounts the declarations he seeks, see Br. of Appellant 5, he never explains how

the Commissioner’s interpretations of the statutes are outside his authority (or, again,

when the Commissioner took any action in this regard).

Accordingly, even if the ultra vires claims somehow could overcome all the

other problems discussed in this brief, they would be waived for inadequate briefing.

See, e.g., Tex. R. App. P. 38.1(i); Kupchynsky v. Nardiello, 230 S.W.3d 685, 692

9 See Bd. of Trs. of Galveston Wharves v. O’Rourke, 405 S.W.3d 228 (Tex. App.—Houston
[1st Dist.] 2013, no pet.); Tex. Logos, L.P. v. Tex. Dep’t of Transp., 241 S.W.3d 105, 118 (Tex.
App.—Austin 2007, no pet.).

18
(Tex. App.—Dallas 2007, pet. denied) (“Other than a general cite to one case stating

the elements of the cause of action and the restatement of torts, appellants make no

argument that the cause of action is so limited. Under these circumstances, we

conclude this issue is inadequately briefed.”); Huey v. Huey, 200 S.W.3d 851, 854

(Tex. App.—Dallas 2006, no pet.) (“We have no duty to brief appellant’s issue for

her. Failure to cite applicable authority or provide substantive analysis waives an

issue on appeal.”). Morales cannot satisfy his burden to establish jurisdiction

merely by reciting the term “ultra vires.”

D. Morales’s “Need to Bind the Division” Argument Lacks Merit.

Morales also attempts to circumvent his jurisdictional defects by relying on a

vague derogatory policy argument that declaratory relief is necessary to bind the

State Appellees, who he accuses, without foundation, of “hiding” from the law and

purposely avoiding clear statutory construction. See Br. of Appellant, passim. As

addressed above, the Division serves in an adjudicative capacity in workers’

compensation disputes, pursuant to its duties under the Labor Code. Tex. Lab.

Code Ann. § 402.001. It is disinterested in the particular disputes before it—much

like this Court—with no reason to “misinterpret” the law. See Houston Lighting &

Power Co. v. Dickinson Indep. Sch. Dist., 641 S.W.2d 302, 309 (Tex. App.—

Houston [14th Dist.] 1982, writ ref’d n.r.e.) (explaining that, “[w]here the official

action of a board is attacked, courts will presume the board discharged its duties
19
according to law and acted in good faith”); see also United States v. Morgan, 313

U.S. 409, 421 (1941) (stating that courts presume that executive officials are

individuals “of conscience and intellectual discipline” who act in good faith).

It is axiomatic that parties disappointed with the outcome of a case may

believe the Division (or this Court) erred in judgment. However, Morales’s vitriolic

accusations against the State Appellees as willful bad actors are disingenuous,

irresponsible, and transcend reasonable disagreement with the Division’s decisions.

These claims are simply unsupported hyperbole that are easily dismissed, as would

be a disgruntled party’s unfounded claims that this Court actively seeks to

misinterpret the law by failing to hold in that party’s favor.

Moreover, there is no judicial “public policy” exception to sovereign

immunity. See Harvel, 2015 WL 3637823, at *3 n.8 (rejecting argument like

Morales’s, explaining that judicial review suit could give plaintiff relief and that,

regardless, “[a] court without jurisdiction has no choice but to dismiss the case”).10

10 Morales also claims the State Appellees place parties in a “Catch-22” by disregarding court
decisions unless they “are made parties or intervene.” Br. of Appellant 40–41. He cites appeals-
panel decisions stating that the panel is not bound by district-court opinions in other cases. Br. of
Appellant 40–43. However, the appeals panels merely distinguished those district-court decisions
on their facts in adjudicating the fact-specific case before it. This argument neither establishes a
need to “bind” the State Appellees through UDJA action nor establishes an actual immunity
waiver. The proper recourse for parties aggrieved by the Division’s decisions is through the
exclusive method that was established by the Legislature, which is judicial review of the Division’s
administrative decisions under the Labor Code. Tex. Lab. Code Ann. § 410.251.

20
Legislative waivers must be by clear and unambiguous language. Tex. Gov’t Code

Ann. § 311.034.

Moreover, even if Morales could pierce the State Appellees’ sovereign

immunity, which he cannot, his claims would be barred by either or both of the

redundant-remedies or ripeness doctrines. 11

II. MORALES SEEKS AN IMPERMISSIBLE REDUNDANT REMEDY THROUGH HIS
UDJA ACTION.

As noted above, Morales seeks declaratory judgment related to spinal

surgeries and the effects of such surgeries occurring before maximum medial

improvement in calculating impairment ratings. This mirrors the issue the appeals

panel decided and that is currently the subject of his suit for judicial review under

Labor Code section 410.251.

This Court has squarely held that declaratory judgment under the UDJA is

unavailable when redundant of a parallel administrative appeal. See Tex. Dep’t of

State Health Servs. v. Balquinta, 429 S.W.3d 726, 747 (Tex. App.—Austin 2014,

pet. dism’d); Tex. State Bd. of Veterinary Med. Exam’rs v. Giggleman, 408 S.W.3d

696, 708 (Tex. App.—Austin 2013, no pet.) (holding that plaintiff did not assert

valid UDJA claim because it would “be merely incidental to the relief [plaintiff]

11 These arguments also defeat Morales’s UDJA claims as asserted against TMIC.

21
could obtain through his PIA mandamus claim”); SWEPI LP v. R.R. Comm’n, 314

S.W.3d 253, 268 (Tex. App.—Austin 2010, pet. denied) (citation omitted); see also,

e.g., Harvel, 2015 WL 3637823, at *4 (holding that redundant-remedies doctrine

barred declaratory relief because “declarations [plaintiff] seeks under the UDJA

action are duplicative of his suit for judicial review”).12

Because Morales’s argument regarding the calculation of impairment ratings

given spinal surgeries is the subject of his judicial-review suit, the trial court properly

dismissed his redundant UDJA claim regarding that same issue.13

III. MORALES SEEKS IMPERMISSIBLE ADVISORY OPINIONS.

Morales also seeks broad declarations pertaining to the rights of claimants

generally. To the extent that he requests relief untethered to his actual dispute with

12
Although Morales pleaded for attorneys’ fees pursuant to the UDJA, he does not appear to
pursue that request on appeal, which in any event would be meritless: “[A]n award of attorney’s
fees under the DJA is unavailable if the claim for declaratory relief is merely incidental to other
claims for relief.” Jackson v. State Office of Admin. Hr’gs, 351 S.W.3d 290, 301 (Tex. 2011); see
also MBM Fin. Corp. v. Woodlands Operating Co., L.P., 292 S.W.3d 660, 669 (Tex. 2009); In re
Sw. Bell Tel. Co., L.P., 235 S.W.3d 619, 626 (Tex. 2007) (holding that request for attorneys’ fees
under section 37.009 “cannot operate to vest the trial court with jurisdiction where there was none
before”).
13 Patel is distinguishable once more on this point. The Supreme Court there reaffirmed the
redundant-remedies doctrine but found it inapplicable because the plaintiffs sought “more than a
reversal of” previous administrative orders, but rather “prospective injunctive relief against future
agency orders” that were concretely threatened. Patel, 2015 WL 3982687, at *14; see id. at *12–
13 (discussing ripeness). Morales makes no such claim. Rather, his only concrete injury is the
adverse appeals-panel decision, which can be remedied through his judicial-review suit.

22
TMIC (or the State Appellees), his claims are not ripe because they seek advisory

opinions.

Ripeness “is a threshold issue that implicates subject matter jurisdiction.”

Patterson v. Planned Parenthood of Houston & Se. Tex., Inc., 971 S.W.2d 439, 442

(Tex. 1998). It “asks whether the facts have developed sufficiently so that an injury

has occurred or is likely to occur, rather than being contingent or remote.” Id.

Adjudicating an unripe dispute violates the constitutional prohibition on advisory

opinions and offends the judiciary’s prudential interest in conserving judicial

resources for cases presenting concrete, well-developed controversies. Id. at 442–

43. Prudential concerns resonate particularly in the administrative context, where

“avoiding premature litigation over administrative determinations prevents courts

from ‘entangling themselves in abstract disagreements over administrative policies’

while simultaneously allowing the agency to perform its functions unimpeded.”

Trinity Settlement Servs., LLC v. Tex. State Sec. Bd., 417 S.W.3d 494, 506 (Tex.

App.—Austin 2013, pet. denied) (quoting Patterson, 971 S.W.2d at 443).

Morales seeks precisely what the ripeness doctrine precludes. He asks the

Court to opine on various statutory interpretations to generally make “a declaration

of the parties’ rights under the Texas Workers’ Compensation Act,” C.R. at 50,

completely divorced from any factual context and before the administrative agency

has had the opportunity “to perform its functions unimpeded,” Trinity Settlement
23
Servs., 417 S.W.3d at 506. These requests are particularly problematic in the

workers’ compensation context, where disputes are often fact-bound and questions

of law, including those of statutory interpretation, turn on the details of each case.

Last December, this Court addressed the same issue in another case against a

state agency. See VanderWerff v. Tex. Bd. of Chiropractic Exam’rs, No. 03-12-

00711-CV, 2014 WL 7466814, at *2–3 n.4 (Tex. App.—Austin Dec. 18, 2014, no

pet.) (mem. op.) (noting that “litigants may not employ declaratory-judgment actions

to obtain impermissible advisory opinions seeking to interpret statutes or agency

rules”). The Court should similarly dispose of Morales’s attempt to accomplish the

same end here.

PRAYER

Based on all the foregoing, the Court should overrule Morales’s sole issue and

affirm the district court’s judgment dismissing his UDJA claim and dismissing the

State Appellees from this case.

24
Respectfully submitted,

KEN PAXTON
Attorney General of Texas

CHARLES E. ROY
First Assistant Attorney General

JAMES E. DAVIS
Deputy Attorney General for Civil Litigation

DAVID A. TALBOT, JR.
Chief, Administrative Law Division

/s/Adrienne Butcher
ADRIENNE BUTCHER
Assistant Attorney General
State Bar No. 24050363
Administrative Law Division
OFFICE OF THE ATTORNEY GENERAL
P.O. Box 12548, Capitol Station (MC-018)
Austin, Texas 78711-2548
Telephone: (512) 463-1410
Facsimile: (512) 474-2697
adrienne.butcher@texasattorneygeneral.gov

COUNSEL FOR APPELLEES

25
 CERTIFICATE OF COMPLIANCE

I certify that the brief submitted complies with Texas Rule of Appellate
Procedure 9 and the word count of this document is 4,745, excluding the portions of
the brief exempted by Rule 9.4(i)(1). The word processing software used to prepare
this filing, and calculate the word count of the document, is Microsoft Word 2013.

Dated: July 27, 2015
/s/Adrienne Butcher
ADRIENNE BUTCHER

CERTIFICATE OF SERVICE

On July 27, 2015, the foregoing brief was served via File & ServeXpress and
e-mail on:

Bradley Dean McClellan
State Bar No. 13395980
Of Counsel, THE LAW OFFICES OF RICHARD PENA, P.C.
1701 Director’s Blvd., Suite 110
Austin, Texas 78744
Telephone: (512) 327-6884
Facsimile: (512) 327-8354
Email: Brad.McClellan@yahoo.com

/s/Adrienne Butcher
ADRIENNE BUTCHER

26
 APPENDIX

A. Harvel v. Tex. Dep’t of Ins., Div. of Workers’ Comp., No. 13-14-00095-CV,
2015 WL 3637823 (Tex. App.—Corpus Christi June 11, 2015, no pet. h.).

B. Brief of Appellant, Vanderwerff v. Tex. Dep’t of Ins., Div. of Workers’ Comp.,
et al., No. 05-15-00195-CV (Tex. App.—Dallas filed Feb. 17, 2015).
 Tab A
Harvel v. Tex. Dep’t of Ins., Div. of Workers’ Comp.,
No. 13-14-00095-CV, 2015 WL 3637823
(Tex. App.—Corpus Christi June 11, 2015, no pet. h.).
 Page 1
--- S.W.3d ----, 2015 WL 3637823 (Tex.App.-Corpus Christi)
(Cite as: 2015 WL 3637823 (Tex.App.-Corpus Christi))

peal challenging a plea to the jurisdiction granted in
Only the Westlaw citation is currently available. favor of appellees, the Division of Workers' Com-
pensation of the Texas Department of Insurance
NOTICE: THIS OPINION HAS NOT BEEN RE- (“the Division”) and the Commissioner of Workers'
LEASED FOR PUBLICATION IN THE PER- Compensation David Mattax, in his official capa-
MANENT LAW REPORTS. UNTIL RELEASED, FN2
city. We affirm the trial court's order granting
IT IS SUBJECT TO REVISION OR WITHDRAW- the plea and dismissing for lack of jurisdiction.
AL.
FN2. At the time appellants perfected this
appeal the Commissioner of Workers'
Court of Appeals of Texas,
Compensation was the Hon. Rod Border-
Corpus Christi-Edinburg.
lon. Pursuant to Rule 7.2, we automatically
Jamie Harvel and The Austin Police Association,
substitute the name of his successor in that
Appellants,
office, the Hon. Ryan Brannan. See TEX.
v.
R. APP. P. 7.2.
Texas Department of Insurance–Division of Work-
ers' Compensation, and Commissioner Rod Border- FN3
I. BACKGROUND
lon, in his Official Capacity, Appellees.
FN3. This case is before this Court on
NUMBER 13–14–00095–CV transfer from the Third Court of Appeals in
Delivered and filed June 11, 2015 Austin pursuant to a docket-equalization
order issued by the Supreme Court of
On appeal from the 53rd District Court of Trav-
Texas. See TEX. GOV'T CODE ANN. §
is County, Texas.
73.001 (West, Westlaw through 2013 3d
Bradley Dean McClellan, Richard Pena, for Appel-
C.S.).
lant.
The Austin Police Department normally as-
Karen L. Watkins, for Appellee.
signed Officer Harvel to work at the police station
located in downtown Austin. In May of 2012, he
Before Justices Benavides, Perkes and Longoria was temporarily reassigned to a training camp loc-
ated in a different part of Austin to serve as a fire-
FN1 arms instructor. On the morning of May 4, 2012,
OPINION
Officer Harvel was traveling from his home to that
FN1. On motion by appellants, the Court, training camp on his personal motorcycle. A car at-
sitting en banc, withdraws its memor- tempting to turn left failed to yield the right of way
andum opinion and judgment issued on and collided with Officer Harvel, who sustained
May 21, 2015, designates that memor- “significant injuries” as a result.
andum opinion as an “opinion,” and reis-
The City of Austin, which self-insures, denied
sues said opinion without further change.
Officer Harvel's claim for workers's compensation
See TEX. R. APP. P. 47.6.
benefits. Officer Harvel challenged that decision
Opinion by Justice Longoria and received a contested case hearing before a Di-
*1 Officer Jamie Harvel and the Austin Police vision hearing officer. See TEX. LAB. CODE
Association, appellants, bring this interlocutory ap- ANN. § 410.151 (West, Westlaw through 2013 3d

© 2015 Thomson Reuters. No Claim to Orig. US Gov. Works.
 Page 2
--- S.W.3d ----, 2015 WL 3637823 (Tex.App.-Corpus Christi)
(Cite as: 2015 WL 3637823 (Tex.App.-Corpus Christi))

C.S.). The hearing officer issued an order that tion of the employer from home to a specially as-
denied coverage and made findings of fact and con- signed work location is in the course and scope of
clusions of law that Officer Harvel was not acting his employment while traveling.”
within the course and scope of his employment at
the time of his injury. Officer Harvel challenged the FN4. Article 2.13 of the Texas Code of
order, but it became final after the Division appeals Criminal Procedure provides that it is “the
panel did not enter a decision. See id. § 410.204(c) duty of every peace officer to preserve the
(West, Westlaw through 2013 3d C.S.) (providing peace within the officer's jurisdiction” and
that the order of a hearing officer in a contested that all peace officers shall “in every case
case becomes final if the appeals panel fails to rule authorized by the provisions of this Code,
on the claimant's challenge to the order). interfere without warrant to prevent or sup-
press crime.” TEX. CODE CRIM. PROC.
Officer Harvel filed suit for judicial review of ANN. art. 2.13 (West, Westlaw through
the Division's final order in Travis County district 2013 3d C.S.).
court. See id. § 410.251 (authorizing a suit for judi-
cial review of a final order of the Division in a con- *2 Appellees filed a plea to the jurisdiction as-
tested case hearing) (West, Westlaw through 2013 serting that they are not proper parties to Officer
3d C.S.). Officer Harvel's suit named appellees and Harvel's suit for judicial review and that sovereign
the City of Austin as defendants. Officer Harvel re- immunity bars Officer Harvel's requests for declar-
quested that the trial court overturn the Division's atory relief. The Austin Police Association (“the
FN5
final order and determine that he was in the course Association”) filed a plea in intervention and a
and scope of his employment when another person request for declaratory relief seeking the same de-
illegally turned in front of him and caused his injur- clarations as Officer Harvel. After the Association
ies. He challenged all adverse “findings, conclu- intervened, appellees filed a second plea to the jur-
sions and decisions” of the Division and requested isdiction incorporating the arguments in their first
the trial court to determine that he is entitled to plea and further asserting that the Association had
workers's compensation benefits because his injur- no standing to seek a declaratory judgment.
ies were work-related. In the same pleading, Officer
FN5. The Association described itself in its
Harvel sought two declarations under the Uniform
plea in intervention as “being composed of
Declaratory Judgment Act (UDJA). See generally
over 1,600 police officers” employed by
TEX. CIV. PRAC. & REM. CODE ANN. § 37.001
the City of Austin, including Officer
–.011 (West, Westlaw through 2013 3d C.S.)
Harvel.
(providing the procedures for seeking a declaratory
judgment). Officer Harvel requested a declaration The trial court granted appellees's plea to the
that under the Texas Workers' Compensation Act jurisdiction and dismissed appellants's claims
and the “Texas Peace Officer Statutes” a peace of- FN6
against appellees in both suits. Appellants
ficer “is immediately in the course and scope of timely brought this interlocutory appeal. See TEX.
their employment upon observing an illegal act es- CIV. PRAC. & REMM. CODE ANN. §
pecially within their jurisdiction.” See TEX. CODE 51.014(a)(8) (West, Westlaw through 2013 3d C.S.)
CRIM. PROC. ANN. art. 2.12 (West, Westlaw (permitting an interlocutory appeal of an order
FN4
through 2013 3d C.S.). Officer Harvel sought a granting or denying a plea to the jurisdiction by a
second declaration that employer-directed travel for government unit).
purposes of the Texas Workers' Compensation Act
“need not be just from one work place to another FN6. The City of Austin did not file a plea
location but that an employee traveling at the direc- to the jurisdiction and is not a party to this

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 Page 3
--- S.W.3d ----, 2015 WL 3637823 (Tex.App.-Corpus Christi)
(Cite as: 2015 WL 3637823 (Tex.App.-Corpus Christi))

appeal. ute or other law.” Tex. Dep't of Transp. v. Sefzik,
355 S.W.3d 618, 621 (Tex.2011) (per curiam )
II. STANDARD OF REVIEW & APPLICABLE (citing Heinrich, 284 S.W.3d at 372–73); accord
LAW Abbott v. G.G.E, No. 03–11 –00338–CV, –––
A plea to the jurisdiction challenges a trial S.W.3d ––––, 2015 WL 1968262, at *13 n. 14
court's subject matter jurisdiction over a case. City (Tex.App.—Austin Apr. 30, 2015, no. pet. h.). Re-
of Dallas v. Carbajal, 324 S.W.3d 537, 538 lated to this rule is the ultra vires exception, which
(Tex.2010) (per curiam ). Whether subject matter permits private parties to bring claims against state
jurisdiction exists is a question of law that we re- officials for nondiscretionary acts unauthorized by
view de novo. Id. law. Sefzik, 355 S.W.3d at 621. Such lawsuits are
not “against the State” and therefore not barred by
The burden is on the plaintiff to demonstrate
sovereign immunity. Id.; see Heinrich, 284 S.W.3d
the trial court's jurisdiction. Heckman v. Williamson
at 373.
County, 369 S.W.3d 137, 150 (Tex.2012). When a
plea to the jurisdiction challenges the pleadings, our III. OFFICER HARVEL'S SUIT FOR JUDI-
task is to determine if the pleader has alleged facts CIAL REVIEW
that affirmatively demonstrate the trial court's juris- *3 Officer Harvel's petition sought both judi-
diction. Tex. Dep't of Parks & Wildlife v. Miranda, cial review of the Division's final order denying
133 S.W.3d 217, 226 (Tex.2004). We begin our him workers's compensation benefits and a declar-
analysis of a plea to the jurisdiction with the live atory judgment. Judicial review of a final agency
pleadings. Heckman, 369 S.W.3d at 150. We may order and a UDJA action are separate proceedings
also consider evidence submitted to negate the ex- authorized and governed by different statutes. See
istence of jurisdiction and must do so when the TEX. LAB. CODE ANN. § 410.251 (authorizing
evidence necessarily resolves the jurisdictional is- judicial review of a final order of the Division once
sue. Id. We construe the pleadings liberally, accept- the claimant has exhausted all administrative rem-
ing all factual allegations as true, and look to the in- edies); TEX. CIV. PRAC. & REM. CODE ANN. §
tent of the pleader. Id. We must grant the plea if the 37.003 (authorizing a suit for a declaratory judg-
pleadings affirmatively negate the existence of jur- ment). Appellees filed a plea to the jurisdiction
isdiction. Miranda, 133 S.W.3d at 227. If the plead- challenging the trial court's jurisdiction over them
ings do not contain sufficient facts to demonstrate in both suits, but appellants did not address why ap-
jurisdiction but also do not affirmatively negate it, pellees are proper parties to Officer Harvel's suit
the issue is one of pleading sufficiency. Id. for judicial review as distinguished from appel-
lants's UDJA action in their briefs to this Court.
Sovereign immunity generally deprives the trial
The appellant's brief must contain a clear and con-
court of jurisdiction over a lawsuit in which the
cise argument for the party's contest accompanied
party has sued the State or a state agency unless the
by appropriate citations to authorities and to the re-
Legislature has waived immunity. Tex. Parks &
cord. TEX. R. APP. P. 38.1(i); see Strange v. Cont'l
Wildlife Dep't. v. Sawyer Trust, 354 S.W.3d 384,
Cas. Co., 126 S.W.3d 676, 678 (Tex.App.—Dallas
388 (Tex.2011). The UDJA is not a general waiver
2004, pet. denied) (“An issue on appeal unsuppor-
of sovereign immunity but does provide a narrow
ted by argument or citation to any legal authority
waiver of immunity for claims challenging the
presents nothing for the court to review.”). To the
validity of ordinances or statutes. Id.; City of El
degree that Officer Harvel raises an issue that ap-
Paso v. Heinrich, 284 S.W.3d 366, 373 n. 6
pellees are proper parties to his suit for judicial re-
(Tex.2009). However, the UDJA does “not waive
view, we overrule it as inadequately briefed. See
the state's sovereign immunity when the plaintiff
TEX. R. APP. P. 38.1(i); Strange, 126 S.W.3d at
seeks a declaration of his or her rights under a stat-

© 2015 Thomson Reuters. No Claim to Orig. US Gov. Works.
 Page 4
--- S.W.3d ----, 2015 WL 3637823 (Tex.App.-Corpus Christi)
(Cite as: 2015 WL 3637823 (Tex.App.-Corpus Christi))

678. sought only a declaration of its rights and status un-
der the Act. Id. (citing Sefzik, 355 S.W.3d at 621).
IV. DECLARATORY RELIEF Appellants seek similar relief in the case at bar: a
We next turn to appellants's argument that sov- declaration of their rights under a statute. Without a
ereign immunity does not bar their UDJA action legislative waiver, sovereign immunity bars appel-
against the Division and the Commissioner. FN7
lants's suit. Appellants have not directed us to
any legislative waiver of immunity for their suit,
Appellants sought two declarations under the
and we have found none. We conclude that the trial
UDJA: (1) that a peace officer who witnesses an il-
court did not err in granting appellees's plea to the
legal act is immediately within the course and FN8
jurisdiction. See Sefzik, 355 S.W.3d at 621;
scope of his or her employment; and (2) that em-
Trinity Settlement Servs., 417 S.W.3d at 503; see
ployer-directed travel includes an “employee travel-
also City of McKinney v. Hank's Rest. Group, L.P.,
ing at the direction of the employer from home to a
412 S.W.3d 102, 113 (Tex.App.—Dallas 2013, no
specially assigned work location.” Sovereign im-
pet.) (holding that the UDJA did not waive im-
munity bars both claims because appellants seek a
munity for the appellee's claims “seeking interpret-
declaration of their rights under a statute but do not
ations of City ordinances, declarations of HRG's
challenge the validity of any statute or ordinance.
statutory rights and declarations that City officials
See Sefzik, 355 S.W.3d at 621. Appellants assert
have violated or are violating the law”).
that the Texas Supreme Court permitted a similar
UDJA action to continue in Texas Lottery Commis- FN7. We note that unlike Sefzik, appellants
sion v. First State Bank of DeQueen, but that case is brought suit against a state official, the
distinguishable and does not support appellants's ar- Commissioner of Workers' Compensation.
gument. 325 S.W.3d 628, 633–34 (Tex.2010). However, appellants do not allege that the
Texas Lottery Commission involved whether provi- Commissioner acted ultra vires or request
sions of the Uniform Commercial Code invalidated that we remand to afford appellants an op-
certain sections of the Texas Lottery Act. Id. at 634. portunity to plead an ultra vires suit. See
Thus, Texas Lottery Commission fits into the nar- Tex. Dep't. of Transp. v. Sefzik, 355
row UDJA waiver of sovereign immunity for suits S.W.3d 618, 623 (Tex.2011) (per curiam)
challenging the validity of statutes which the Texas (affirming a plea to the jurisdiction but re-
Supreme Court recognized in Heinrich. See id. at manding to permit the plaintiff to plead an
635 (“Because the claim at issue here is not one in- ultra vires suit).
volving a government officer's action or inaction,
but is a challenge to a statute, this is not an ultra FN8. Appellants assert numerous times in
vires claim to which a government officer should their appellate briefs that a UDJA action in
have been made a party”); see also Heinrich, 284 which the Commissioner and the Division
S.W.3d at 372–73. Appellants's UDJA action is are parties is the only way to bind the
more akin to the one the Austin Court of Appeals Commissioner and the Division to apply
addressed in Trinity Settlement Services, LLC v. the declarations appellants seek in sub-
Texas State Securities Board, where Trinity sought sequent contested case proceedings. Ap-
a declaratory judgment of its rights and status under pellants do not explain why the Division
the Texas Securities Act. 417 S.W.3d 494, 503 and the Commissioner would not be bound
(Tex.App.—Austin 2013, pet. denied). The court of to apply a district court decision agreeing
appeals held that sovereign immunity barred Trin- with Officer Harvel that the Texas Code of
ity's claims for declaratory judgment against the Criminal Procedure places police officers
Texas State Securities Board because Trinity in the course and scope of their employ-

© 2015 Thomson Reuters. No Claim to Orig. US Gov. Works.
 Page 5
--- S.W.3d ----, 2015 WL 3637823 (Tex.App.-Corpus Christi)
(Cite as: 2015 WL 3637823 (Tex.App.-Corpus Christi))

ment as soon as they witness a violation of versy between the Association and appellees. See
the law. In any event, we have concluded Brooks v. Northglen Ass'n, 141 S.W.3d 158,
that the trial court correctly concluded that 163–64 (Tex.2004). The trial court has jurisdiction
it lacked jurisdiction over this appeal. A to address a suit for declaratory relief only if a jus-
court without jurisdiction has no choice ticiable controversy exists regarding the rights and
but to dismiss the case. See State v. Mor- status of the parties actually before the court and
ales, 869 S.W.2d 941, 949 (Tex.1994). the declaration sought will actually resolve the con-
troversy. Id. A justiciable controversy involves a
*4 When we hold that the trial court is without real and substantial conflict of tangible interests
subject-matter jurisdiction, we allow a plaintiff to and not merely a theoretical or hypothetical dispute.
replead if the defect can be cured. See Miranda, Bonham State Bank v. Beadle, 907 S.W.2d 465, 467
133 S.W.3d at 226–227. We will not afford Officer (Tex.1995); see Trinity Settlement Servs., 417
Harvel an opportunity to replead because the relief S.W.3d at 505 (observing that a justiciable contro-
requested under the UDJA Act mirrors the relief he versy does not exist if a case requires the trial court
requested in the suit for judicial review. When a to “pass upon hypothetical or contingent situations,
plaintiff “has invoked a statutory means of attack- or to determine questions not then essential to the
ing an agency order, a trial court lacks jurisdiction decision of an actual controversy, although such ac-
over an additional claim under the UDJA that tions may in the future require adjudication”). The
would merely determine the same issues and Association seeks a declaration that would apply to
provide what is substantively the same relief that all of its police officers, but none of those officers
would be provided by the other statutory remedy.” except for Officer Harvel are before the Court. At
Tex. Dep't of State Health Servs. v. Balquinta, 429 best, the Association has identified hypothetical
S.W.3d 726, 746 (Tex.App.—Austin 2014, pet. disputes which are likely to occur between the Di-
dism'd); SWEPI LP v. R.R. Com'n of Tex., 314 vision and its member officers in the future if one
S.W.3d 253, 268 (Tex.App.—Austin 2010, pet. of the officers is injured. While it is certainly pos-
denied). Both Officer Harvel's suit for judicial re- sible that one of the Association's member officers
view and his UDJA action seek rulings that (1) a could be injured when traveling to work in a man-
peace officer is in the course and scope of employ- ner similar to Officer Harvel's experience, such an
ment as soon as the officer witnesses an illegal act injury is merely hypothetical at this point. See Bon-
and (2) that employer-directed travel for purposes ham State Bank, 907 S.W.2d at 467. We conclude
of the Texas Workers' Compensation Act includes that the pleadings affirmatively negate the existence
travel from the employee's home to a specially-as- of jurisdiction because the Association has not
signed work location. If Officer Harvel was suc- shown that any possible injury is “imminent, direct,
cessful on either suit he would receive substant- and immediate, and not merely remote, conjectural,
ively the same relief: reversal of the final order or hypothetical.” See Rea v. State, 297 S.W.3d 379,
denying him workers's compensation benefits. The 383 (Tex.App.—Austin 2009, no pet.). We will not
pleadings have affirmatively negated jurisdiction afford the Association an opportunity to replead.
because the declarations Officer Harvel seeks under
the UDJA action are duplicative of his suit for judi- V. CONCLUSION
cial review. See Balquinta, 429 S.W.3d at 746; We affirm the trial court's order granting the
SWEPI, 314 S.W.3d at 268. plea to the jurisdiction.

We will not afford the Association an oppor- Tex.App.-Corpus Christi, 2015
tunity to replead because the pleadings conclusively Harvel v. Texas Department of Insurance-Division
demonstrate the absence of a justiciable contro- of Workers' Compensation

© 2015 Thomson Reuters. No Claim to Orig. US Gov. Works.
 Page 6
--- S.W.3d ----, 2015 WL 3637823 (Tex.App.-Corpus Christi)
(Cite as: 2015 WL 3637823 (Tex.App.-Corpus Christi))

--- S.W.3d ----, 2015 WL 3637823
(Tex.App.-Corpus Christi)

END OF DOCUMENT

© 2015 Thomson Reuters. No Claim to Orig. US Gov. Works.
 Tab B
Brief of Appellant, Vanderwerff v. Tex. Dep’t of Ins., Div. of Workers’ Comp., et
al., No. 05-15-00195-CV (Tex. App.—Dallas filed Feb. 17, 2015).
 ACCEPTED
05-15-00195-CV
FIFTH COURT OF APPEALS
DALLAS, TEXAS
5/26/2015 11:40:30 PM
LISA MATZ
CLERK

No. 05-15-00195-CV
FIFTH COURT OF APPEALS FILED IN
5th COURT OF APPEALS
DALLAS, TEXAS DALLAS, TEXAS
5/26/2015 11:40:30 PM
LISA MATZ
Clerk
Dr. Eric Vanderwerff, D.C., Appellant
v.
Texas Department of Insurance-Division of Workers' Compensation
and Commissioner Ryan Brannan, in his official capacity, Appellees
and Travelers Indemnity Company of Connecticut, Defendant Below

On Interlocutory Appeal from the 14th District Court of Dallas County
Cause No. DC-14-02886, the Honorable Eric Moyé Presiding

DR. ERIC VANDERWERFF, D.C., APPELLANT’S BRIEF

BRADLEY DEAN McCLELLAN
State Bar No. 13395980
Richard Pena
Law Offices of Richard Pena, P.C
State Bar No. 00000073
Law Offices of Richard Pena, P.C.
1701 Directors Blvd., Suite 110
Austin, Texas 78744
Brad.McClellan@yahoo.com
(512) 327-6884 telephone
(512) 327-8354 facsimile
Counsel for Appellant

May 26, 2015

Oral Argument Requested
 IDENTITY OF PARTIES & COUNSEL

PLAINTIFF/APPELLANT: Attorneys for DWC and Commissioner:
Dr. Eric Vandwerff, D.C. DOUGLAS D. GEYSER,
Care of Attorneys Assistant Solicitor General
Law Offices of Richard Pena, P.C. OFFICE OF THE ATTORNEY GENERAL
1701 Directors Blvd. P.O. Box 12548 (MC 059)
Austin, Texas 78744 Austin, Texas 78711-2548
Tel.: (512) 936-2540
TRIAL AND APPELLATE ATTORNEY FOR Fax: (512) 474-2697
PLAINTIFF & INTERVENOR: douglas.geyser@texasattorneygeneral.
Bradley Dean McClellan gov
State Bar No. 13395980 Adrienne Butcher, Assistant Attorney
Richard Pena General
Law Offices of Richard Pena, P.C Administrative Law Division
State Bar No. 00000073 Office of the Attorney General of Texas
1701 Directors Blvd. Suite 110 P.O. Box 12548 (MC-018), Capital
Austin, Texas 78744 Station
Brad.McClellan@yahoo.com Austin, Texas 78711-2548
Fax 512.327.8354 512-475-4208
Telephone 512.327.6884 512-320-0167 facsimile.
Attorneys for DWC and Commissioner

INTERVENOR DEFENDANT/APPELLEE: OTHER DEFENDANT:
Texas Department of Insurance – Travelers Indemnity Insurance Co. of
Division of Workers' Compensation, Connecticut, the Insurance Carrier
DWC, a governmental unit organized James M. Loughlin
and existing under the law of the State Stone Loughlin & Swanson, LLP
of Texas, and Commissioner Ryan P.O. Box 3011
Brannan, in his official capacity Austin, Texas 78755
7551 Metro Center Drive, Suite 100 Facsimile: (512) 343-1385
Austin, TX, 78744 jloughlin@slsaustin.com
Counsel for Defendant Travelers

ii
No. 05-15-00195-CV Dr. Vanderwerff Appellant’s Brief
 TABLE OF CONTENTS

TABLE OF AUTHORITIES iv-v

IDENTITY OF PARTIES & COUNSEL ii

STATEMENT OF THE CASE vii

ISSUES PRESENTED ix

DR. VANDERWERFF’S APPELLANT’S BRIEF 1
SUMMARY OF ARGUMENT 7
STATEMENT OF FACTS 2
ARGUMENT & AUTHORITIES 11
Issue No. 1: When a state agency intervenes in a lawsuit, does the
District Court have jurisdiction to determine a declaratory judgment
action brought to properly construe, interpret, and enforce applicable
Texas statutes against the state agency and the head of the state agency
after administrative remedies have been exhausted and a live controversy
remains with allegations that the state defendants have violated the
statutes in question? 11

CONCLUSION 39
PRAYER 40
CERTIFICATE OF COMPLIANCE 41
CERTIFICATE OF SERVICE 41

APPENDIX 42

iii
No. 05-15-00195-CV Dr. Vanderwerff Appellant’s Brief
 ACCEPTED
05-15-00195-CV
FIFTH COURT OF APPEALS
DALLAS, TEXAS
5/26/2015 11:40:30 PM
LISA MATZ
CLERK

No. 05-15-00195-CV
FIFTH COURT OF APPEALS FILED IN
5th COURT OF APPEALS
DALLAS, TEXAS DALLAS, TEXAS
5/26/2015 11:40:30 PM
LISA MATZ
Clerk
Dr. Eric Vanderwerff, D.C., Appellant
v.
Texas Department of Insurance-Division of Workers' Compensation
and Commissioner Ryan Brannan, in his official capacity, Appellees
and Travelers Indemnity Company of Connecticut, Defendant Below

On Interlocutory Appeal from the 14th District Court of Dallas County
Cause No. DC-14-02886, the Honorable Eric Moyé Presiding

DR. ERIC VANDERWERFF, D.C., APPELLANT’S BRIEF

BRADLEY DEAN McCLELLAN
State Bar No. 13395980
Richard Pena
Law Offices of Richard Pena, P.C
State Bar No. 00000073
Law Offices of Richard Pena, P.C.
1701 Directors Blvd., Suite 110
Austin, Texas 78744
Brad.McClellan@yahoo.com
(512) 327-6884 telephone
(512) 327-8354 facsimile
Counsel for Appellant

May 26, 2015

Oral Argument Requested
 IDENTITY OF PARTIES & COUNSEL

PLAINTIFF/APPELLANT: Attorneys for DWC and Commissioner:
Dr. Eric Vandwerff, D.C. DOUGLAS D. GEYSER,
Care of Attorneys Assistant Solicitor General
Law Offices of Richard Pena, P.C. OFFICE OF THE ATTORNEY GENERAL
1701 Directors Blvd. P.O. Box 12548 (MC 059)
Austin, Texas 78744 Austin, Texas 78711-2548
Tel.: (512) 936-2540
TRIAL AND APPELLATE ATTORNEY FOR Fax: (512) 474-2697
PLAINTIFF & INTERVENOR: douglas.geyser@texasattorneygeneral.
Bradley Dean McClellan gov
State Bar No. 13395980 Adrienne Butcher, Assistant Attorney
Richard Pena General
Law Offices of Richard Pena, P.C Administrative Law Division
State Bar No. 00000073 Office of the Attorney General of Texas
1701 Directors Blvd. Suite 110 P.O. Box 12548 (MC-018), Capital
Austin, Texas 78744 Station
Brad.McClellan@yahoo.com Austin, Texas 78711-2548
Fax 512.327.8354 512-475-4208
Telephone 512.327.6884 512-320-0167 facsimile.
Attorneys for DWC and Commissioner

INTERVENOR DEFENDANT/APPELLEE: OTHER DEFENDANT:
Texas Department of Insurance – Travelers Indemnity Insurance Co. of
Division of Workers' Compensation, Connecticut, the Insurance Carrier
DWC, a governmental unit organized James M. Loughlin
and existing under the law of the State Stone Loughlin & Swanson, LLP
of Texas, and Commissioner Ryan P.O. Box 3011
Brannan, in his official capacity Austin, Texas 78755
7551 Metro Center Drive, Suite 100 Facsimile: (512) 343-1385
Austin, TX, 78744 jloughlin@slsaustin.com
Counsel for Defendant Travelers

ii
No. 05-15-00195-CV Dr. Vanderwerff Appellant’s Brief
 TABLE OF CONTENTS

TABLE OF AUTHORITIES iv-v

IDENTITY OF PARTIES & COUNSEL ii

STATEMENT OF THE CASE vii

ISSUES PRESENTED ix

DR. VANDERWERFF’S APPELLANT’S BRIEF 1
SUMMARY OF ARGUMENT 7
STATEMENT OF FACTS 2
ARGUMENT & AUTHORITIES 11
Issue No. 1: When a state agency intervenes in a lawsuit, does the
District Court have jurisdiction to determine a declaratory judgment
action brought to properly construe, interpret, and enforce applicable
Texas statutes against the state agency and the head of the state agency
after administrative remedies have been exhausted and a live controversy
remains with allegations that the state defendants have violated the
statutes in question? 11

CONCLUSION 39
PRAYER 40
CERTIFICATE OF COMPLIANCE 41
CERTIFICATE OF SERVICE 41

APPENDIX 42

iii
No. 05-15-00195-CV Dr. Vanderwerff Appellant’s Brief
 INDEX OF AUTHORITIES
Cases
Beacon Nat 'I Ins. Co. v. Montemayor, 86 S.W.3d 260, 267 (Tex. App.-Austin
2002, no pet.) .............................................................................................. 21
Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554-55 (Tex. 2000) ................. 23
Brooks v. Northglen Ass'n, 141 S.W.3d 158, 163 (Tex. 2004) .......................... 17
Calvert v. Employees Ret. Sys. of Tex., 648 S.W.2d 418, 419 (Tex. App.--Austin
1983, writ ref'd n.r.e.).................................................................................. 25
Campos v. Texas Prop. & Cas. Ins. Guar. Ass'n, 282 S.W.3d 226, 230 (Tex.
App.—Austin 2009, no pet.) ........................................................................ 15
City of El Paso v. Heinrich, 284 S.W.3d 366, 373 n.6 (Tex. 2009) ..................... 26
City of McKinney v. Hank's Rest. Group, L.P., 412 S.W.3d 102, 112 (Tex. App.—
Dallas 2013, no pet.) .................................................................................... 13
Cobb v. Harrington, 144 Tex. 360, 190 S.W.2d 709, 712 (1945) ...................... 26
Harvel v. Tex. Dep't of Ins.-Div. of Workers' Comp., 13-14-00095-CV, 2015 Tex.
App. LEXIS 5159, 2015 WL 2452703 (Tex. App. Corpus Christi--May 21,
2015, motion for rehearing to be filed) ....................................................... 13
Hawkins v. El Paso First Health Plans, Inc., 214 S.W.3d 709, 716-18 (Tex. App.--
Austin 2007, pet. filed). ............................................................................... 26
Houston General Insurance Co. v. Association Casualty Insurance Co., 977
S.W.2d 634 (Tex. App.—Tyler, no pet.) ........................................................ 38
Howell v. Texas Workers' Compensation Com'n, 143 S.W.3d 416, 433 (Tex.
App.--Austin 2004, pet. denied). .................................................................. 38
Kuntz v. Khan, No. 03-10-00 160-CV, 2011 Tex. App. LEXIS 446, 2011 WL
182882,(Tex. App.--Austin 2011, no pet.) .................................................... 21
Mid-Century Insurance Company v. Texas Workers’ Compensation Commission,
187 S.W.3d 754 (Tex. App.—Austin 2006, no pet.). ..................................... 33
Nat'l Am. Ins. Co. and TDI-DWC and Commissioner Bordelon in his official
capacity v. Tex. Prop. & Cas. Ins. Guar. Ass'n, No. 03-09-00680-CV, 2013 WL
4817637, 2013 Tex. App. LEXIS 10865 (Tex. App.--Austin Aug. 28, 2013, no
pet.) .......................................................................................................... 9, 17
Nat'l Am. Ins. Co. v. Tex. Prop. & Cas. Ins. Guar. Ass'n for Paula Ins. Co., 2013
Tex. App. LEXIS 10865, 2013 WL 4817637 (Tex. App.--Austin Aug. 28, 2013,
no pet.) ........................................................................................................ 30
Roal Global Corp. v. City of Dallas, 2015 Tex. App. LEXIS 5205 (Tex. App. Dallas-
-May 21, 2015, no pet. h.) ........................................................................... 13

iv
No. 05-15-00195-CV Dr. Vanderwerff Appellant’s Brief
section 2001.176(b)(1) .................................................................................... 15
section 410.005 .............................................................................................. 15
Spawglass Constr. Corp. v. City of Houston, 974 S.W.2d 876, 878 (Tex. App.--
Houston [14th Dist.] 1998, pet. denied) ........................................................ 25
Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 446 (Tex.1993) ...... 23
Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex.2004) .... 23
Tex. DOT v. Sefzik, 355 S.W.3d 618, 621-622 (Tex. 2011). ............................... 28
Tex. Educ. Agency v. Leeper, 893 S.W.2d 432, 446 (Tex. 1994). ...................... 27
Tex. Lottery Comm'n v. First State Bank of DeQueen, 325 S.W.3d 628, 634-35
(Tex. 2010).............................................................................................. 27, 28
Tex. Natural Res. Conservation Comm'n v. IT-Davy, 74 S.W.3d 849, 859-60 (Tex.
2002) ........................................................................................................... 27
Tex. Prop. & Cas. Guar. Ass'n v. Nat'l Am. Ins. Co., 208 S.W.3d 523, 533 (Tex.
App.--Austin 2006, pet. denied). .................................................................. 14
Tex. Workers' Compensation Ins. Fund v. Tex. Workers' Compensation Comm'n
& Watts, 124 S.W.3d 813, 820 (Tex. App.--Austin 2003, pet. denied) .......... 18
Texas Ass'n of Business v. Texas Air Control Bd., 852 S.W.2d 440 at 446 (Tex.
1993) ........................................................................................................... 24
Texas Dep. of Ins., Div. of Workers’ Compensation v. Lumbermens Mut. Cas.
Co., 212 S.W.3d 870 (Tex App.—Austin 2006, pet. denied) ....................... 9, 19
Texas Educ. Agency v. Leeper, 893 S.W.2d 432, 446 (Tex.1994) ...................... 31
Texas Government Code section 2001.171 ..................................................... 14
Texas Liquor Control Bd. v. Canyon Creek Land Corp., 456 S.W.2d 891, 895
(Tex.1970) ................................................................................................... 33
Texas Mun. Power Agency v. Public Util. Comm'n, 100 S.W.3d 510, 520 (Tex.
App.--Austin 2003, pet. denied) ................................................................... 33
Texas Mun. Power Agency v. Public Utility Com'n of Texas, 253 S.W.3d 184, 189
(Tex. 2007)................................................................................................... 32
Texas Natural Res. Conservation Comm'n v. IT-Davy, 74 S.W.3d 849, 855 (Tex.
2002) ........................................................................................................... 26
Texas State Employees Union/CWA Local 6184 v. Texas Workforce Comm'n, 16
S.W.3d 61, 65 (Tex. App.-Austin 2000, no pet.)............................................ 23
Texas Workers' Compensation Commision v. Garcia, 893 S.W.2d 504 (Tex.
1995) ...................................................................................................... 32, 33
Transportation Ins. Co. v. Franco, 821 S.W.2d 751, 754 (Tex. App.--Amarillo
1992, writ denied) ....................................................................................... 34

v
No. 05-15-00195-CV Dr. Vanderwerff Appellant’s Brief
Young Chevrolet, Inc. v. Tex. Motor Vehicle Bd., 974 S.W.2d 906,911 (Tex. App.-
-Austin 1998, pet. denied) ........................................................................... 22
Statutes
Tex. Civ. P. & Rem. Code § 37.006 .................................................................. 16
Tex. Civ. Prac. & Rem. Code §37.003(a) .......................................................... 38
Tex. Civ. Prac. & Rem. Code §5.062(a) ............................................................ 38
Texas Insurance Code Section 1305.451 ......................................................... 12
Texas Labor Code § 410.254 ............................................................................. 8
Texas Labor Code §410.252(b)(1) ................................................................... 16
Texas Labor Code Section 401.011(12) ............................................................. 8
Other Authorities
DWC APPEAL NO. 050140, 2005 TX Wrk. Comp. LEXIS 57 (decided March 14,
2005) 35
DWC APPEAL NO. 94994, 1994 TX Wrk. Comp. LEXIS 6081, September 9, 1994
36
DWC APPEAL NO. 951802, 1995 TX Wrk. Comp. LEXIS 4964, December 13,
1995 37
DWC Appeal No. 990005, 1999 TX Wrk. Comp. LEXIS 3029, decided February
19, 1999 37
DWC Appeals Panel No. 071023-s, decided July 23, 2007, 2007 TX Wrk. Comp.
LEXIS 54. 36

vi
No. 05-15-00195-CV Dr. Vanderwerff Appellant’s Brief
 STATEMENT OF THE CASE

This case involves primarily questions of law and statutory violations

which arose out of a workers’ compensation dispute and the improper

interpretation and application of the Legislature’s statutory terms by both the

workers’ compensation insurance carrier and the Texas Department of

Insurance-Division of Workers’ Compensation (DWC), which is the state agency

charged with properly applying, enforcing, and interpreting the Texas Labor

Code and Texas Insurance Code along with the DWC Commissioner in his

official capacity. Dr. Eric Vanderwerff, D.C., is a health care provider and

subclaimant of the injured worker. The injured worker has workers’

compensation coverage through the Defendant, the Travelers Indemnity

Company of Connecticut. The administrative judge ruled in favor of Dr.

Vanderwerff, but the Insurance Carrier appealed and the final DWC

administrative decision determined that a website link was sufficient written

notice to injured workers of health care network required written notice. CR

165, 166-67. Dr. Vanderwerff filed for judicial review in the 14th District Court

of Dallas County challenging the final DWC determinations and seeking

declarations of proper statutory interpretation both under the Texas Labor

Code and the Texas Insurance Code. CR 5, 147. The DWC intervened and
vii
No. 05-15-00195-CV Dr. Vanderwerff Appellant’s Brief
filed a plea to the jurisdiction arguing sovereign immunity from suit. CR 35, 60,

105. Travelers, the Insurance Carrier, finally answered and also filed a plea to

the jurisdiction. CR 33, 50. The Honorable Judge Eric Moyé granted the DWC’s

plea to the jurisdiction and dismissed the DWC from the lawsuit, and he

granted Traveler’s Plea to the Jurisdiction, CR 201-202. Plaintiff brings this

interlocutory appeal challenging the plea to the jurisdiction dismissing DWC

from the case and granting DWC’s plea to the jurisdiction as to the declaratory

claims. Appellant does not believe the Insurance Carrier is a direct party to

this interlocutory appeal.

viii
No. 05-15-00195-CV Dr. Vanderwerff Appellant’s Brief
 ISSUE PRESENTED

Issue No. 1: When a state agency intervenes in a lawsuit, does the District
Court have jurisdiction to determine a declaratory judgment action brought to
properly construe, interpret, and enforce applicable Texas statutes against the
state agency and the head of the state agency after administrative remedies
have been exhausted and a live controversy remains with allegations that the
state defendants have violated the statutes in question?

ix
No. 05-15-00195-CV Dr. Vanderwerff Appellant’s Brief
 No. 05-15-00195-CV
FIFTH COURT OF APPEALS
DALLAS, TEXAS

Dr. Eric Vanderwerff, D.C., Appellant
v.
Texas Department of Insurance-Division of Workers' Compensation
and Commissioner Ryan Brannan, in his official capacity, Appellees
and the Travelers Indemnity Company of Connecticut

On Appeal from the 14th District Court of Dallas County
Cause No. DC-14-02886, the Honorable Eric Moyé Presiding

DR. ERIC VANDERWERFF, D.C., APPELLANTS’ BRIEF

To the Honorable Justices of the 5th Court of Appeals:

A state agency is not free to misinterpret and misapply the laws of the

Texas Legislature, and the Courts of this State are duty bound to make sure the

laws of this State are properly applied, interpreted and enforced. Texas citizens

have a right to seek declaratory judgments concerning statutory rights especially

where administrative remedies have been exhausted. A state agency may not

prevent a parties challenge that a statute is not being properly applied,

interpreted and enforced. When the state agency voluntarily intervenes into a

lawsuit, the state should not be allowed to interfere with the duty of the Courts
1
No. 05-15-00195-CV Dr. Vanderwerff Appellant’s Brief
to enforce the proper construction of statutes in dispute. The state agency is a

necessary party for such a declaration, and such a declaration would be

unenforceable without the proper state agency. The final decision of the Texas

Department of Insurance-Division of Workers’ Compensation and Commissioner

Brannan, collectively the DWC, primarily determined that that a website link

constituted proper written notice under Texas Insurance Code Section, where the

Legislature required complete and accurate written notice updated quarterly of

health care providers for injured workers. The prior administrative judge

rejected the notion that a website met the statutory requirements of the

Insurance Code.

The declaratory judgment action will require that the DWC and the

Commissioner properly enforce the statutes at issue and require the DWC and the

Commissioner to properly interpret, apply, and enforce the law as written by the

Legislature.

STATEMENT OF FACTS

Leonardo Martinez, a Texas worker, suffered a compensable injury on July

21, 2010 while in the course and scope of his employment with his employer,

2
No. 05-15-00195-CV Dr. Vanderwerff Appellant’s Brief
Hensley Industries.1 Dr. Eric VanderWerff, D.C., provided medical care to the

Claimant after for his compensable injuries.2 Travelers Indemnity Company of

Connecticut provided workers compensation insurance as the Insurance Carrier

on the date of the worker’s injuries.3 The Insurance Carrier is alleged to have

paid for a lot of the medical care, but disputed some of the medical care after the

Insurance Carrier asserted the Claimant was covered under its workers’

4
compensation health care network. The DWC was asked to determine if the

Claimant had been provided proper, sufficient, and timely notice of the health

care network.5 The DWC hearing officer determined that neither the Insurance

Carrier nor the Employer properly provided the Claimant with the information

required by Texas Insurance Code §1305.451, and that the Insurance Carrier could

not deny payment to Dr. Vanderwerff on this basis, and the Insurance Carrier was

ordered to pay workers’ compensation benefits consistent with the decision.6 The

Insurance Carrier appealed to the DWC Appeals Panel, and the DWC Appeals

Panel reversed the hearing officer and determined that a packet containing notice

1
CR 163 DWC Hearing Decision
2
CR 156
3
CR 163
4
CR 147
5
CR 155
6
CR 165
3
No. 05-15-00195-CV Dr. Vanderwerff Appellant’s Brief
of an electronic website link to a health care network provider list was sufficient.7

The live pleadings of the Plaintiff are attached as Appendix 2, Plaintiff’s First

Amended Petition and Suit for Declaratory Judgment and Exhibit “A” DWC

Contested Case Hearing Decision signed November 4, 2013 and DWC Appeals

Panel Decision of February 18, 2014. Dr. VanderWerff disputed all adverse

determinations of the disputed issues.

Dr. Vanderwerff filed his lawsuit for declaratory judgment against the

Insurance Carrier.8 The TDI-DWC voluntarily filed a petition in intervention on

October 6, 2014, and amended its intervention petition on January 28, 2015.9

The DWC also filed a plea to the jurisdiction and an amended petition in

intervention in part asserting a lack of jurisdiction over UDJA claims and that

administrative remedies were not exhausted as to medical treatment until

Plaintiff exhausts all claims with the Division regarding his medical bills for

treating the claimant.10 Dr. Vandewerff amended his petition asserting claims

against the DWC and the Commisioner.11 Plaintiff asserted in part that injured

workers and health care providers, especially as subclaimants, have a right to

7
CR 167, 168
8
CR 5
9
CR 35, 105.
10
CR 60, 105
11
CR 147 Plaintiff’s 1st Amended Petition and Suit for Declaratory Judgment
4
No. 05-15-00195-CV Dr. Vanderwerff Appellant’s Brief
demand the Courts protect their rights under the Texas Labor Code and Texas

Insurance Code.12 Dr. Vanderwerff asked that the District Court so declare and

that the Court compel compliance with statutory provisions which the DWC and

the DWC Commissioner and the Insurance Carrier Defendant have not followed as

required including both the finality of preauthorization of medical treatment no

longer subject to dispute, the lack of timely raising or asserting a health care

network issue to oppose payment of benefit, and the lack of timely and proper

notice of health care network providers to the Claimant with a website link not

being proper written notice of the statutory requirements. 13

Dr. Vanderwerff also alleged that the DWC Defendants, which include the

DWC Commissioner, acted beyond their statutory authority in failing to properly

apply, interpret and enforce the statutes and rules for which declaratory relief is

sought.14 Further, Dr. Vanderwerff plead that the DWC Defendants cannot adopt

and apply administrative rules which are inconsistent with and in conflict with the

the statute. The District Court granted the DWC and the Commissioner plea to

the jurisdiction along with Travelers Plea to the jurisdiction.15 In granting the

12
CR 149
13
CR 150
14
CR 151
15
CR 201, 202
5
No. 05-15-00195-CV Dr. Vanderwerff Appellant’s Brief
DWC’s jurisdiction plea, the District Judge ruled that “All declaratory judgment

actions in this case are DISMISSED. Intervenor TDI-DWC is further DISMISSED

from this case, and all relief requested against it is DENIED.”16 This interlocutory

appeal was brought by Dr. Vanderwerff challenging the granting of the plea to the

jurisdiction and the dismissal of the intervening party, the DWC, and the

Commissioner, from this matter.

16
CR 202
6
No. 05-15-00195-CV Dr. Vanderwerff Appellant’s Brief
 SUMMARY OF THE ARGUMENT

A state agency which intervenes in a lawsuit may not be dismissed on

jurisdictional grounds from the lawsuit it joined avoid being a necessary party to a

statutory declaration lawsuit concerning the statutes the agency is charged to

regulate and to enforce and to properly apply. Further, when the state agency

acts beyond and in derogation of its statutory authority, the state official is a

proper party to a lawsuit alleging such ultra vires acts. This is especially clear

when administrative remedies have been exhausted and a live controversy exists.

The 3rd Court of Appeals previously rejected the DWC and the Commissioner’s

argument that only judicial review between the parties is permissible:17

The Division argues that because the carriers are permitted to seek judicial
review of hearing decisions applying the advisories under section 410.251
of the labor code, they are barred from bringing declaratory judgment
actions under the UDJA challenging the same decisions.

The 3rd Court rejected the DWC’s similar arguments and concluded: “that the trial

court had jurisdiction over the declaratory judgment action pursuant to the

UDJA.”18 This matter is not different.

In this matter, Dr. Vanderwerff ahs sought declaratory judgments that assert

17
Texas Dep. of Ins., Div. of Workers’ Compensation v. Lumbermens Mut. Cas. Co.,
212 S.W.3d 870, 874 (Tex App.—Austin 2006, pet. denied)
18
Lumbermens at 875
7
No. 05-15-00195-CV Dr. Vanderwerff Appellant’s Brief
the DWC Defendants and Commissioner and the Insurane Carrier have not

properly interpreted, applied, and enforced the Texas Workers’ Compensation

Act and the Texas Insurance Code. Included in the declarations of law sought are

the proper application, interpretation, compliance and enforcement of TEXAS

LABOR CODE and TEXAS INSURANCE CODE as well as the declaration that improper and

invalid rules conflicting with the statutory terms are not enforceable. The legal

resolution of the declarations will likely resolve the underlying administrative

controversy where the material facts are not disputed. Without declarations,

these legal questions will arise again and again and again. Workers’

compensation system participants are entitled to a final declaration of,

interpretation, and enforcement of the statutory terms by the Judicial Branch

subject only to changes in the laws by the Texas Legislature.

Texas Courts are duty bound to properly construe statutory requirements

especially where the Legislature’s will is clearly ignored.

How the DWC’s (and the Commissioner’s) position appears to be that it is

only allowed to intervene under Texas Labor Code § 410.254, but that the DWC is

somehow not a necessary or proper party in such suits appears to create a

dichotomy. This allows the DWC to continually misapply and misinterpret the law

and act in violation of the law without being held accountable even when the
8
No. 05-15-00195-CV Dr. Vanderwerff Appellant’s Brief
DWC voluntarily joins a lawsuit. The DWC and the Commissioner’s similar

jurisdictional pleas arguing immunity from declaratory judgments were rejected

by the 3rd Court of Appeals in 2006 in DWC v. Lumbermens and in 2013, last year,

in the Nat’l Ins. and DWC & Commissioner v. TPCIGA decisions.19 The DWC and

the Commissioner are clearly necessary to have the Texas Workers’

Compensation Act and other applicable statutes properly applied in workers’

compensation disputes concerning legal rights.

If the DWC and the Commissioner are correct, then the Judicial Branch of

Texas government would lose its oversight of the Executive Branches proper

application, proper interpretation, and proper enforcement of the laws adopted

by the Texas Legislature and state agencies would be free to violate the very

statutes which the agency and the state official is bound to uphold.

The State Appellees, the DWC and the Commissioner, appear to wish to

avoid clear legal statutory construction and proper statutory application

questions raised by the Appellant. This case involves a justiciable controversy,

properly exhausted administrative remedies, and clear questions of law

19
Texas Dep. of Ins., Div. of Workers’ Compensation v. Lumbermens Mut. Cas. Co.,
212 S.W.3d 870 (Tex App.—Austin 2006, pet. denied); Nat'l Am. Ins. Co. and TDI-
DWC and Commissioner Bordelon in his official capacity v. Tex. Prop. & Cas. Ins.
Guar. Ass'n, No. 03-09-00680-CV, 2013 WL 4817637, 2013 Tex. App. LEXIS 10865
(Tex. App.--Austin Aug. 28, 2013, no pet.)
9
No. 05-15-00195-CV Dr. Vanderwerff Appellant’s Brief
concerning statutory interpretations, alleged statutory violations by the DWC and

failure to properly apply the law. The DWC and the Commissioner cannot avoid

the law and cannot hide from being required to follow the law when the state

agency’s actions violate the statutory requirements.

Appellant is not seeking damages from the state Defendants. Appellant is

seeking to enforce the statutory rights violated by the Defendants.

10
No. 05-15-00195-CV Dr. Vanderwerff Appellant’s Brief
 ARGUMENT & AUTHORITY

Issue No. 1: When a state agency intervenes in a lawsuit, does the District Court
have jurisdiction to determine a declaratory judgment action brought to
properly construe, interpret, and enforce applicable Texas statutes against the
state agency and the head of the state agency after administrative remedies
have been exhausted and a live controversy remains with allegations that the
state defendants have violated the statutes in question?

1. The DWC Intervened as a Party and the District Court erred in Dismissing
the TDI-DWC.

The District Court dismissed the DWC when the DWC intervened in this

matter. Unlike many declaratory relief cases argued below and herein, the DWC

intervened in this lawsuit, and the DWC plead:20

As provided by the Labor Code, upon timely petition, the Division must be
allowed to intervene in a suit for judicial review and is not required to show
a justiciable interest in a case to do so. See Tex. Workers’ Comp. Comm’n v.
Hartford Acc. & Indem. Co., 952 S.W.2d 949, 953 (Tex. App.—Corpus Christi
1997, pet. denied). Unless an intervention is struck, an intervenor is a party
for all purposes and should be considered a party-plaintiff. Id. (citing ESIS,
Inc. Servicing Contractor v. Johnson, 908 S.W.2d 554, 563 (Tex. App.—Fort
Worth 1995, writ denied)).
Appellant agrees with the DWC’s own pleading. Once the DWC intervened, the

DWC became a party for all purposes including being subjected to proper

declaratory relief to ensure the DWC does not violate the statutory terms. The

20
CR 107, DWC’s Amended Petition in Intervention
11
No. 05-15-00195-CV Dr. Vanderwerff Appellant’s Brief
DWC is not allowed to intervene and only have its legal questions answered ------

. The DWC intervened and then filed a plea to the jurisdiction praying in part that

the judge “dismiss the Division from this case.” CR 198. May a state agency

intervene in and join a lawsuit and then hypocritically request dismissal from the

lawsuit especially where the Judicial Branch will likely hold the state agency and

its official accountable for misapplying and ignoring the laws of the Legislature.

The substantive statutory issues are clear. A phone number and a website

link is not the proper written notifications about an insurance carrier’s network

that is required by law to be provided to employees by the Legislature. The Texas

Insurance Code Section 1305.451 requires insurance carriers through their

insured employers to provide employees “an accurate written description of the

terms and conditions for obtaining health care within the network's service area.”

Section 1305.451 additionally mandates:

(b) The written description required under Subsection (a) must be in English,
Spanish, and any additional language common to an employer's employees,
must be in plain language and in a readable and understandable format, and
must include, in a clear, complete, and accurate format: . . .

(12) a list of network providers updated at least quarterly, including:

(A) the names and addresses of the providers;
(B) a statement of limitations of accessibility and referrals to
specialists; and
(C) a disclosure of which providers are accepting new patients;
12
No. 05-15-00195-CV Dr. Vanderwerff Appellant’s Brief
 Incomprehensibly, the DWC’s live pleading is that:21 “The Division correctly

determined that the provision of a network weblink is sufficient notice to workers

of healthcare network providers.” Is being given notice to call “1-866-245-6472 or

log onto the website www.mywcinfo.com”22 proper written notice in a clear

complete and accurate format a list of network providers? Such a phone number

and a website link is not even close to the statutory written notice requirements.

An injured employee, much less any employee, is not required by any law to

try to muddle through a website to find detailed information that is to be

provided to the employee in writing and in a complete and accurate format and

updated quarterly. How hard is it to give an employee a list of insurance

company doctors with all the required information as the statute demands?

This is not a case where the state agency was sued and found to have

immunity from suit. Contrast with Roal Global Corp. v. City of Dallas, 2015 Tex.

App. LEXIS 5205 (Tex. App. Dallas--May 21, 2015, no pet. h.); City of McKinney v.

Hank's Rest. Group, L.P., 412 S.W.3d 102, 112 (Tex. App.—Dallas 2013, no pet.);

Harvel v. Tex. Dep't of Ins.-Div. of Workers' Comp., 13-14-00095-CV, 2015 Tex.

21
DWC Amended Intervention Petition at CR 112.
22
See Plaintiff’s Amended Petition, CR 147
13
No. 05-15-00195-CV Dr. Vanderwerff Appellant’s Brief
App. LEXIS 5159, 2015 WL 2452703 (Tex. App. Corpus Christi--May 21, 2015,

motion for rehearing to be filed) (13th Court of Appeals determined sovereign

immunity bars the claims against state agency.)

2. Under Labor Code Section 410.255, the DWC is a proper party for all other
issues, which arguably includes network arising out of Chapter 1305 of the
Texas Insurance Code.

Labor Code section 410.255 would require the DWC be made a party under

a “substantial evidence review” standard. The 3rd Court of Appeals explained the

two judicial review avenues under Chapter 410 of the Texas Labor Code:23

Section 410.301 HN4 provides that suits "regarding compensability or
eligibility for or the amount of income or death benefits" are governed by
modified de novo review. Tex. Lab. Code Ann. § 410.301. Substantial-
evidence review is reserved as the default for any other type of reviewable
appeals panel decision. See id. § 410.255.

To anticipate the DWC’s response that 410.255 would mandate venue in Travis

County—such is not accurate because 410.252 controls judicial review and

requires venue in the county of the worker’s residence under either subchapter F

(410.255) or subchapter G (410.301) of Chapter 410 of the Texas Labor Code. So

even if Labor Code section 410.255 applies to network issues and then Texas

23
Tex. Prop. & Cas. Guar. Ass'n v. Nat'l Am. Ins. Co., 208 S.W.3d 523, 533 (Tex.
App.--Austin 2006, pet. denied).
14
No. 05-15-00195-CV Dr. Vanderwerff Appellant’s Brief
Government Code section 2001.171 et seq. applies in this case (though such

assertion is definitely contested), venue is still mandatory in Dallas County. Under

Texas Government Code section 2001.176(b)(1) a petition must be filed in Travis

County “unless provided otherwise by statute.” Travis County is the default if

the specific statute does not provide otherwise—here it provides local venue.

Texas Labor Code section 410.252(b)(1) statutorily mandates venue in the

worker’s county of residence (Dallas County) at the time of the injury. This is

consistent with the administrative hearings in this matter being held in the local

DWC field office within 75 miles of the worker’s residence under Texas Labor

Code section 410.005. Worth noting is section 410.252 precedes section 410.255,

and both of these sections are part of Subchapter F of Chapter 410. Any attempt

to say section 410.252 does not apply to section 410.255 would be contrary to the

express language of the statute.

The 3rd Court of Appeals previously addressed whether the backup

mandatory Travis County venue under the Guaranty Act controlled over the

required mandatory county of an injured worker’s residence under the Texas

Workers’ Compensation Act. See respectively, TEX. INS. CODE § 462.017(b) and TEX.

LAB. CODE § 410.252(b). See TEX. LAB. CODE § 410.252(b)(1) (party bringing suit

must file petition in county where employee resided at time of injury); Campos v.
15
No. 05-15-00195-CV Dr. Vanderwerff Appellant’s Brief
Texas Prop. & Cas. Ins. Guar. Ass'n, 282 S.W.3d 226, 230 (Tex. App.—Austin 2009,

no pet.). In Campos v. TPCIGA, this Court properly determined that the

mandatory venue under Texas Labor Code §410.252(b)(1) the Texas Workers’

Compensation Act trumped the conflict with the Insurance Code. The 3rd Court

determined:24

In our view, the specific venue provision of the Workers'
Compensation Act controls over the general venue provision of the
Guaranty Act.

If the network issues transported over from Insurance Code Section 1305 to

Chapter 410 of the Labor Code are considered these “other issues,” then the

DWC is a proper party under Texas Labor Code Section 410.255.

3. Declaratory Relief is Proper & Needed When the DWC Misapplies the Law
and Violate the Law.

The DWC and the Commissioner appear to allege declaratory relief is not

available at all against the DWC and the Commissioner. All parties involved will

be affected by the declaratory judgment action and to be of any force and effect,

the UDJA unequivocally mandates:

(a) When declaratory relief is sought, all persons who have or claim any
interest that would be affected by the declaration must be made parties. A

24
Campos v. Texas Prop. & Cas. Ins. Guar. Ass'n, 282 S.W.3d 226, 231 (Tex. App.—
Austin 2009, no pet.)
16
No. 05-15-00195-CV Dr. Vanderwerff Appellant’s Brief
 declaration does not prejudice the rights of a person not a party to the
proceeding.

TEX. CIV. P. & REM. CODE § 37.006. See Brooks v. Northglen Ass'n, 141 S.W.3d 158,

163 (Tex. 2004) (The Texas Supreme Court noted that no fault and no prejudice

lies with non-parties to the UDJA). If the Appellees, the DWC and the

Commissioner, were not parties, then they would not be bound to follow the

District Court’s declarations.

4. The DWC and Commissioner Previously Have Been Determined Proper
Parties in UDJA Actions

The 3rd Court of Appeals recently emphasized that a declaratory judgment

action is allowed for matters within and proper where a party “asked the court to

declare its rights and status under certain statutory provisions” involving the

Texas Workers’ Compensation Act. Nat'l Am. Ins. Co. and TDI-DWC and

Commissioner Bordelon in his official capacity v. Tex. Prop. & Cas. Ins. Guar. Ass'n,

No. 03-09-00680-CV, 2013 WL 4817637, 2013 Tex. App. LEXIS 10865 (Tex. App.--

Austin Aug. 28, 2013, no pet.) (mem. op.). The 3rd Court rejected the DWC’s and

the Commissioner’s position that the trial court did not have jurisdiction to

construe the statutes in issue and determined in part that “the trial court had

jurisdiction to construe the statutes in issue.” Id. The statutes in issue all were

17
No. 05-15-00195-CV Dr. Vanderwerff Appellant’s Brief
sections of the Texas Workers’ Compensation Act under the Texas Labor Code.

The parties were an insurance carrier, TPCIGA acting on behalf of an insurance

carrier in receivership, and the DWC and the Commissioner. This Court should

also allow a declaratory judgment to proceed to enforce compliance with the

statutory terms. As the 3rd Court of Appeals explained in upholding the right to

declaratory relief in the Nat’l American case:25

A declaratory judgment action is proper only if a justiciable controversy exists
as to the rights and status of the parties and the controversy will be resolved
by the declaration sought. Bonham State Bank v. Beadle, 907 S.W.2d 465,
467 (Tex. 1995).

A clear controversy exists with regards to to the DWC and the Commissioner’s

proper application of the statutory requirements.

5. Insurance Carriers Are Allowed Declaratory Actions Against the TWCC and
the DWC (now the DWC).

In 2003, the Third Court of Appeals allowed one insurance carrier to bring a

declaratory judgment action against the injured worker and the Texas Workers’

Compensation Commission, the predecessor to the DWC, after having exhausted

administrative remedies was proper under the Uniform Declaratory Judgment

Act. Tex. Workers' Compensation Ins. Fund v. Tex. Workers' Compensation

Comm'n & Watts, 124 S.W.3d 813, 820 (Tex. App.--Austin 2003, pet. denied). The

25
Id.
18
No. 05-15-00195-CV Dr. Vanderwerff Appellant’s Brief
3rd Court of Appeals in TWCIF v. TWCC allowed a declaratory action but agreed

with the TWCC’s statutory interpretation.

In 2006, the Third Court of Appeals in Lumbermens upheld the jurisdiction of

the district court under the Uniform Declaratory Judgments Act, UDJA after an

analogous matter arising out of a Chapter 410 proceeding. Texas Dep. of Ins., Div.

of Workers’ Compensation v. Lumbermens Mut. Cas. Co., 212 S.W.3d 870 (Tex

App.—Austin 2006, pet. denied). The Lumbermens court stated:

The UDJA does not confer jurisdiction on trial courts; rather, it is merely a
procedural device for deciding cases already within a court's jurisdiction. . . .

Accordingly, we hold that the trial court had jurisdiction under the UDJA and
overrule the Division's second issue.

Lumbermens at 875. The authority clearly exists to use the UDJA, specifically

§37.004, to pursue a declaration of statutory interpretation even when a rule

violates the Texas Workers’ Compensation Act for cases which administrative

remedies have been exhausted under Chapter 410.

The 3rd Court in the Lumbermens case, TWCIF v TWCC, and the Nat’l Amer.

and TDI-DWC v. TPCIGA, simply allowed and upheld declaratory judgments with

the DWC as a proper party. In each case including the case decided last year, the

DWC objected to the declaratory actions; however, the 3rd Court of Appeals

19
No. 05-15-00195-CV Dr. Vanderwerff Appellant’s Brief
allowed each declaratory action to proceed and determined the meaning of the

statutes in question. These three declaratory actions determined statutory rights

in matters like this one arising after exhaustion of administrative remedies under

Chapter 410 of the Texas Labor Code. This is a case challenging the state agency

and the insurance carrier’s improper application, interpretation, and lack of

compliance and enforcement of state laws. When the Legislature declares a

6.25% state sales tax rate, a state agency could not try to declare and misapply a

7% state sales tax. When the Legislature declares complete and accurate and

detailed written notice be provided to workers, a state agency and its official

head cannot simply allow a website link to be provided.

The TWCIF v. TWCC and the Lumbermens cases were brought as a

declaratory judgment action in conjunction with challenging a final decision from

the Chapter 410 dispute process in the Texas Labor Code. Likewise, the Nat’l

Amer. v. TPCIGA also was brought as a declaratory judgment action subsequent to

a final Chapter 410 contested case hearing yet in a separate proceeding. These

cases illustrate the need for an actual controversy and that Courts are allowed to

address declaratory judgments on matters within their jurisdiction after

administrative remedies have been exhausted. Unlike those cases, the DWC

intervened in this matter.
20
No. 05-15-00195-CV Dr. Vanderwerff Appellant’s Brief
 6. The DWC and the Commissioner Relied Below on Inapplicable and
Distinguishable Decisions

The Appellees relied upon easily distinguishable cases. In the District Court,

the Appellees relied in part upon Beacon Nat 'I Ins. Co. v. Montemayor, 86 S.W.3d

260, 267 (Tex. App.-Austin 2002, no pet.). In Beacon v. Montemayor, the 3rd

Court of Appeals explained:

The UDJA waives this immunity when a party seeks a court's construction of
a statute or rule. City of LaPorte v. Barfield, 898 S.W.2d 288, 297, 38 Tex. Sup.
Ct. J. 533 (Tex. 1995). Beacon's action does not seek construction of a statute
or rule; . . . .

This shows that the party seeking the declaration in Beacon did not seek proper

statutory construction or clarification unlike the declaratory requests here.

Further, the Appellees below cited to Kuntz v. Khan, No. 03-10-00 160-CV,

2011 Tex. App. LEXIS 446, 2011 WL 182882,(Tex. App.--Austin 2011, no

pet.)(mem. op.). Kuntz v. Khan rejected a declaratory judgment because “the

effect of a favorable ruling in either lawsuit would be the same—if Khan prevails

in either suit, the result would be a determination that the Department has no

authority to regulate eyebrow threading.” Kuntz v Khan addressed a suit directly

against and enforceable against the state agency, which the DWC and the

Commissioner are not necessary parties to a judicial review action under Chapter
21
No. 05-15-00195-CV Dr. Vanderwerff Appellant’s Brief
410 without the legal declaratory relief sought.

Likewise the DWC below relied upon Young Chevrolet, Inc. v. Tex. Motor

Vehicle Bd., 974 S.W.2d 906,911 (Tex. App.--Austin 1998, pet. denied), which also

involved direct actions against the state regulatory agency as a party creating

enforceability against the agency without the need for a declaration.

Kuntz v Khan and other cases involving direct judicial challenges to a state

agency are in direct contrast here where the DWC is not a mandatory party under

Chapter 410 disputes except under Section 410.252, and the only method to

enforce proper statutory construction and enforcement against the DWC and the

Commissioner is, simply and legally, to make the DWC and the Commissioner a

party, in fact a necessary party for legal declarations of statutory meanings, rights,

applications, and proper enforcement.

Again, this matter involves a dispute with a health care provider and an

insurance carrier, but to bind the regulatory state agency, the DWC and the

Commissioner, in his official capacity, are necessary and proper parties when

declaratory relief is sought to ensure compliance and that state officials do not

act ultra vires.

7. The District Court Has Jurisdiction over all the Claims

22
No. 05-15-00195-CV Dr. Vanderwerff Appellant’s Brief
 The Appellant has exhausted his administrative remedies before the DWC

and the Commissioner with an unfavorable ruling based upon statutory

construction and misapplication and refusal to comply with the law by the

Appellees. When reviewing a plea to the jurisdiction, the pleadings are construed

in favor of the non-movant. See Tex. Dep't of Parks & Wildlife v. Miranda, 133

S.W.3d 217, 226 (Tex.2004); Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852 S.W.2d

440, 446 (Tex.1993). “The general test for standing in Texas requires that there (a)

shall be a real controversy between the parties, which (b) will be actually

determined by the judicial declaration sought.” Tex. Ass'n of Bus., 852 S.W.2d at

446.

To prevail, the party asserting the plea to the jurisdiction must show that

even if all the allegations in the plaintiff's pleadings are taken as true, there is an

incurable jurisdictional defect apparent from the face of the pleadings, rendering

it impossible for the non-movant’s claims to confer jurisdiction on the trial court.

Texas State Employees Union/CWA Local 6184 v. Texas Workforce Comm'n, 16

S.W.3d 61, 65 (Tex. App.-Austin 2000, no pet.). A court deciding a plea to the

jurisdiction is not required to look solely to the pleadings, but may consider

evidence relevant to the jurisdictional issue and must do so when necessary to

resolve the jurisdictional issues which have been raised. Bland Indep. Sch. Dist. v.
23
No. 05-15-00195-CV Dr. Vanderwerff Appellant’s Brief
Blue, 34 S.W.3d 547, 554-55 (Tex. 2000). A court should construe the pleadings in

the non-movant’s favor and look to the non-movant's intent. Texas Ass'n of

Business v. Texas Air Control Bd., 852 S.W.2d 440 at 446 (Tex. 1993). A court does

not address the merits of the case in a plea to the jurisdiction; instead, the

movant must establish why the merits of the non-movant’s claims should not be

reached. Bland Indep. Sch. Dist., 34 S.W.3d at 554. The DWC and the

Commissioner have not shown that Dr. Vandwerff’s suit to properly enforce

compliance with statutory terms falls outside the jurisdiction of the District Court

because administrative remedies have been exhausted, and the pleadings

illustrate why the DWC and the Commissioner must be parties to be able to

enforce any declarations against the state agency and its administrative head

when the agency fails to properly follow the Legislature’s laws and acts in

violation of the state laws.

8. Resolution of the Controversy with Declaratory Action

The judicial declaration sought by Dr. Vanderwerff will help determine and

likely resolve the controversy concerning when injured workers are provided

proper written notice of health care providers and that an insurance carrier may

not dispute its own preauthorized treatment.

24
No. 05-15-00195-CV Dr. Vanderwerff Appellant’s Brief
 9. Texas Courts are “Duty-Bound” to Construe Statutes

Texas District Courts are inherently vested with the power to construe

statutes, and Courts are not bound by an agencies interpretation or application,

especially if in error. If a declaratory judgment action terminates the uncertainty

or controversy giving rise to the lawsuit, the District Court is duty-bound to

declare the rights of the parties as to the matters on which the parties join issue.

Spawglass Constr. Corp. v. City of Houston, 974 S.W.2d 876, 878 (Tex. App.--

Houston [14th Dist.] 1998, pet. denied); Calvert v. Employees Ret. Sys. of Tex., 648

S.W.2d 418, 419 (Tex. App.--Austin 1983, writ ref'd n.r.e.). Without the DWC and

the Commissioner, the enforcement of the statutes proper application would not

be available to a judge.

10. Live Justiciable Controversy Exists

Appellant also has clearly asserted that the DWC and the Commissioner

interpretation and application of the laws in question violate the statutes of Texas

and the statutory responsibility, authority and limits placed upon the DWC and

the Commissioner and that statutory interpretation and validity of application of

the Texas Workers’ Compensation Act and Texas Code of Criminal Procedure are

in dispute. A justiciable controversy regarding whether a state agency or officer
25
No. 05-15-00195-CV Dr. Vanderwerff Appellant’s Brief
has acted beyond statutory authority provides a jurisdictional basis for a UDJA

action seeking construction of that statutory authority. This type of UDJA action

does not implicate sovereign immunity. Cobb v. Harrington, 144 Tex. 360, 190

S.W.2d 709, 712 (1945); see also Texas Natural Res. Conservation Comm'n v. IT-

Davy, 74 S.W.3d 849, 855 (Tex. 2002) (“Private parties may seek declaratory relief

against state officials who allegedly act without legal or statutory authority.”). A

suit for declaratory relief is not a suit against the State because it does not seek to

impose liability or money damages against the state agency. IT-Davy, 74 S.W.3d

at 853.

11. Recent Texas Supreme Court Decisions Allow Declaratory Actions to
Properly Enforce Statutes Allowed Against State Agencies & Agency
Officials Acting Beyond the Statute

The Texas Supreme Court has held that the UDJA waives a municipality's

immunity against claims challenging the validity of its ordinances. City of El Paso

v. Heinrich, 284 S.W.3d 366, 373 n.6 (Tex. 2009). The Court explained that that

the governmental entity retains its immunity from suit when the claimant does

not challenge the validity of a statute but rather challenges a government officer's

application of a statute to the claimant. 284 S.W.3d at 372-73 & n.6. How is the

DWC Commissioner immune from suit when the validity of his final decisions and

rules are challenged as in violation of the statutory requirements? This is the
26
No. 05-15-00195-CV Dr. Vanderwerff Appellant’s Brief
responsibility of the Courts to stop such violations by state officials and state

agencies.

The affected parties remedy is an ultra vires suit against the government

officer in his or her official capacity for prospective relief. Id. at 369-74. This

would support DWC Commissioner being a party in this matter to properly apply

the statutes in question.

12. Declaratory Statutory Challenges Require State Agency to be a Party

Recent Texas Supreme Court cases also support that the state agency is a

proper party in a declaratory action to determine parties’ rights under the statute

that the agency regulates and enforces especially where the state agency’s

violates the statutory terms. Tex. Lottery Comm'n v. First State Bank of DeQueen,

325 S.W.3d 628, 634-35 (Tex. 2010); Tex. Natural Res. Conservation Comm'n v. IT-

Davy, 74 S.W.3d 849, 859-60 (Tex. 2002); Tex. Educ. Agency v. Leeper, 893 S.W.2d

432, 446 (Tex. 1994).

In DeQueen subsequent to Heinrich, the Texas Supreme Court reiterated that

Declaratory Judgment Act suits to construe statutes are expressly allowed

jurisdictionally against a state agency. Texas Lottery Commission v. First State
27
No. 05-15-00195-CV Dr. Vanderwerff Appellant’s Brief
Bank of DeQueen, 325 S.W.3d 628 (Tex. 2010). The DWC and the Commissioner

are proper parties because without them the statutory legal questions and

statutory application would not be applicable to the DWC and the Commissioner.

The Supreme Court in DeQueen reiterated that jurisdiction over the state agency

existed and citing to Leeper explained:

[T]he DJA permits statutory challenges and governmental entities may be
bound by those challenges, the DJA contemplates entities must be joined in
those suits. Leeper, 893 S.W.2d at 446.

The Texas Supreme Court further explained in DeQueen that statutory

clarification, as expressly sought in this matter, that the state agency is a proper

party:26

Next, the Commission asserts that the DJA does not waive immunity because
it applies only to suits involving constitutional invalidation and not to those
involving statutory interpretation. But the language in the DJA does not make
that distinction. In Leeper, . . . . the DJA discussion was in the context of a
statutory clarification. . . . . The decision on this claim may ultimately
impact actions taken by officers of the Commission, but that does not
deprive the trial court of jurisdiction. [Leeper] at 445 (noting that the DJA
allows courts to declare relief "whether or not further relief is or could be
claimed"). The trial court properly exercised jurisdiction over this claim.

Subsequent to DeQueen, the Texas Supreme Court in Sefzik explained:27

As noted, we dismissed Heinrich's claims seeking declaratory and injunctive
relief against governmental entities, brought under the UDJA, because the

26
DeQueen, 325 S.W.3d 628 at 635.
27
Tex. DOT v. Sefzik, 355 S.W.3d 618, 621-622 (Tex. 2011).
28
No. 05-15-00195-CV Dr. Vanderwerff Appellant’s Brief
 entities were immune. In so doing, we necessarily concluded that 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. Very likely, the
same claim could be brought against the appropriate state official under the
ultra vires exception, but the state agency remains immune. See id. at 372-
73. As we have consistently stated, the UDJA does not enlarge the trial
court's jurisdiction [622] but is "merely a procedural device for deciding
cases already within a court's jurisdiction." Tex. Parks & Wildlife Dep't v.
Sawyer Trust, 354 S.W.3d 384, 2011 Tex. LEXIS 640, *8 (2011) (quoting Tex.
Ass'n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 444 (Tex. 1993)).

Sefzik would have allowed a claim for statutory rights enforcement and

declaration to be brought as long as the appropriate state official be named—

which the DWC Commissioner is named herein if Heinrich even applies where the

state agency has joined this lawsuit between private parties.

Noteworthy is that the DWC and the Commissioner in their initial response

to request for disclosure as to their legal theories duck the substantive issues:28

The Division reserves the right to more substantively respond to the
Plaintiff’s asserted UDJA causes of action should the Court decide that the
causes of actions are within its jurisdiction. The Division further reserves
the right to substantively respond to the UDJA causes of action as it gains
greater clarity as to the nature of the declaration that Plaintiff seeks.

The DWC and the Commissioner have apparently deferred properly responding to

the statutory interpretation, clarification, and application of legal theories of an

28
1 CR 46
29
No. 05-15-00195-CV Dr. Vanderwerff Appellant’s Brief
injured Texas peace officer becoming in the course and scope of employment.

Allowing this matter to proceed will get the statutory clarification and rights

properly interpreted and enforceable against the DWC.

13. Declaratory Actions Allowed Even After Prior Final Judgments under
Chapter 410 of the Texas Labor Code to Determine Statutory Rights

The 3rd Court of Appeals recently allowed a declaratory judgment action

against the DWC, the Commissioner, and an insurance carrier to determine

statutory rights after a previous final judgment under a Texas Labor Code Chapter

410 dispute. Nat'l Am. Ins. Co. v. Tex. Prop. & Cas. Ins. Guar. Ass'n for Paula Ins.

Co., 2013 Tex. App. LEXIS 10865 (Tex. App.--Austin Aug. 28, 2013, no pet.). The 3rd

Court, in allowing the declaratory action to proceed, explained that it was not a

collateral attack on the prior judgment because: “the controversy underlying the

Guaranty Association's declaratory judgment action concerns NAIC's rights vis-a-

vis the Guaranty Association under section 410.033 of the Labor Code and the

Guaranty Act. The declaratory judgment action regarding reimbursement thus

involves the existence of a statutory right . . . .” Clearly, declaratory actions over

statutory rights and the proper enforcement of those rights under the Labor Code

and the Code of Criminal Procedure are allowed where, as here, a live controversy

30
No. 05-15-00195-CV Dr. Vanderwerff Appellant’s Brief
exists and administrative remedies have been exhausted.

Further, the state agency is a necessary party when the authority of the state

agency’s actions and rules are questioned as violating the will of the Legislature.

The DWC and the Commissioner being joined in this matter makes this

declaratory action proper so as to be enforced against the DWC and the

Commissioner to not violate the statutes. The Third Court previously explained:

The UDJA grants any litigant whose rights are affected by a statute the
opportunity to obtain a declaration of those rights under the statute and
requires that all relevant parties be joined in any declaratory judgment suit.
Tex. Civ. Prac. & Rem. Code Ann. §§ 37.004, .006 (West 1997); City of Waco v.
Texas Nat. Res. Comm'n, 83 S.W.3d 169, 179 (Tex. App.-Austin 2002, pet.
denied) (UDJA claim not barred by sovereign immunity because UDJA serves to
clarify rights already guaranteed by legislature). Therefore, when the State is a
necessary party to a statutory cause of action, such as a UDJA action for
interpretation of a statute, sovereign immunity is expressly waived because,
were the State not joined, the right to a declaration would have no practical
effect. See City of La Porte v. Barfield, 898 S.W.2d 288, 297 (Tex.1995)
(construing Texas Educ. Agency v. Leeper, 893 S.W.2d 432, 446 (Tex.1994)); see
also Beacon Nat'l Ins. Co. v. Montemayor, 86 S.W.3d 260, 267 (Tex. App.--
Austin 2002, no pet.) (“The UDJA waives [sovereign] immunity when a party
seeks a court's construction of a statute or rule.”); Star Houston v. Texas Dep't
of Transp., 957 S.W.2d 102, 111 (Tex. App.--Austin 1997, pet. denied) (holding
that sovereign immunity did not bar declaratory judgment determining
whether agency has wrongfully construed a statute); City of Austin, 728 S.W.2d
at 910-11 (holding UDJA action brought against government entity to
determine scope of entity's authority not barred by sovereign immunity). A
UDJA action exists whether or not further relief can be obtained. Leeper, 893
S.W.2d at 446. Thus, when a party brings a declaratory judgment action to
interpret an agency's statutory authority, immunity from suit is waived by the
UDJA. This does not mean, however, that immunity from damages is waived
31
No. 05-15-00195-CV Dr. Vanderwerff Appellant’s Brief
 except as to a declaration of the parties' rights and the potential award of
attorney's fees. UDJA actions for statutory interpretation do not implicate the
policy concerns of protecting the legislature's policy-making discretion and
avoiding raids on the public treasury embodied in the sovereign immunity
doctrine-rather, they serve to clarify the rules and requirements imposed by
the legislature on the administrative agencies.

(Emphasis added.) Texas Mun. Power Agency v. Public Utility Com'n, 100 S.W.3d

510, 515-516 (Tex. App.--Austin 2003, pet. denied) (cited to favorably by Texas

Mun. Power Agency v. Public Utility Com'n of Texas, 253 S.W.3d 184, 189 (Tex.

2007). Appellant does not seek damages from the DWC or the Commissioner, but

to clarify and to enforce proper compliance with the statutory requirements on

the administrative agency and its head official. This declaratory action is expressly

in part for statutory interpretation and proper application to include whether the

DWC, the Commissioner and the Insurance Carrier have ignored and failed to

follow the statutory requirements under the law. The DWC should not be

allowed to continue to improperly interpret and fail to enforce the Texas

Insurance Code and the Texas Labor Code.

14. Declaratory Actions under the Texas Workers’ Compensation Act

The initial challenge to the 1989 Texas Workers’ Compensation Act in Garcia

32
No. 05-15-00195-CV Dr. Vanderwerff Appellant’s Brief
was primarily a declaratory judgment action.29 The Texas Supreme Court

reiterated as to the declaratory action against the then TWCC and the Executive

Director looking at the terms and Constitutionality of the 1989 Act:30

Standing, which is a necessary component of subject matter jurisdiction,
requires a) a real controversy between the parties, which b) will be actually
determined by the judicial declaration sought.

The DWC and the Commissioner’s actions ignore the statutory requirements to be

applied against insurance carriers and employers and in favor of workers and

health care providers.

Appellant has exhausted all applicable administrative remedies under

Chapter 410 of the Texas Labor Code. A UDJA claim is sui generis; and, all other

things being equal, the district court's subject matter jurisdiction over it exists

independently of any administrative remedies. Texas Liquor Control Bd. v. Canyon

Creek Land Corp., 456 S.W.2d 891, 895 (Tex.1970); Cobb, 190 S.W.2d at 713; see

Texas Mun. Power Agency v. Public Util. Comm'n, 100 S.W.3d 510, 520 (Tex. App.-

-Austin 2003, pet. denied). Even if the UDJA claims in this matter could not be

brought independently, the claims certainly could be brought within the

jurisdiction created by the administrative dispute.

29
Texas Workers' Compensation Commission v. Garcia, 893 S.W.2d 504, 517-518
(Tex. 1995).
30
Garcia at 513.
33
No. 05-15-00195-CV Dr. Vanderwerff Appellant’s Brief
 The Third Court of Appeals in Mid-Century Insurance Company v. Texas

Workers’ Compensation Commission, 187 S.W.3d 754 (Tex. App.—Austin 2006, no

pet.), determined that a rule exceeded the statutory authority of the DWC and

noted that:

Mid-Century Insurance Company (Mid-Century) sought a declaration that this
rule exceeds the Division's statutory powers and is thus invalid. See Tex. Civ.
Prac. & Rem. Code Ann. § 37.004 (West 1997).

Id. at 756. Without declaratory actions, the statutes could be ignored by the

DWC and the Commissioner with enforcement only on a piece-meal basis by

litigants who are able to challenge improper agency actions.

Whether the District Court, or any Court, ultimately rules in Appellant’s

favor or not—the District Court certainly can declare rights of the interested

parties, a subclaimant for an injured worker, a health care provider, and an

insurance carrier, directly affected by the applicable state agency and agency

head, under the statutes as a matter of law especially where administrative

remedies have been exhausted. See Tex. Workers' Compensation Ins. Fund v. Tex.

Workers' Compensation Comm'n, 124 S.W.3d 813 (Tex. App.--Austin 2003, pet.

denied).

Further, a suit under the UDJA is not confined to cases in which the parties

have a cause of action apart from the Act itself. Transportation Ins. Co. v. Franco,
34
No. 05-15-00195-CV Dr. Vanderwerff Appellant’s Brief
821 S.W.2d 751, 754 (Tex. App.--Amarillo 1992, writ denied) (determined

jurisdiction under the declaratory judgment Act in the Potter County District

Court to determine the validity of a compromise settlement agreement under the

“old law” workers’ compensation statute).

15. ENFORCABILITY: UDJA is Especially Necessary where the DWC Refuses
to Recognize Chapter 410 District Court Rulings as Legally Binding

The DWC’s position on individual Chapter 410 judicial review cases is that mere

district court reversals of a final DWC decision under Chapter 410 of the Texas

Labor Code are not binding as to the DWC’s interpretation even if it is improper as

to any other case. The DWC Appeals Panel has reiterated that:31

that the decision of a [city 1] District Court had no effect "beyond its factual
context" and did not bind the Texas Workers' Compensation Commission
(Commission) as a matter of stare decisis in the Commission's interpretation
of the 1989 Act.

This shows the Catch-22 that the DWC places all parties under that the DWC and

Commissioner’s disregard for a court decision beyond “its factual content” unless,

as here, the DWC and Commissioner are made parties or intervene. This matter

is of significant public importance and concerns the very line drawn as to the

entry into course and scope of employment by Texas peace officers.

31
DWC APPEAL NO. 050140, 2005 TX Wrk. Comp. LEXIS 57 (decided March 14,
2005)
35
No. 05-15-00195-CV Dr. Vanderwerff Appellant’s Brief
Only after the appellate decision upholding declaratory judgment in Lumbermens

become final did the DWC Appeals Panel follow the declaration:32

Lumbermens Mutual Casualty Company filed suit against the Division seeking
in part a declaratory judgment that the Advisories are inconsistent with 28
TEX. ADMIN. CODE § 130.1 (Rule 130.1) and that their issuance and
application is outside the Division's statutory authority.

The Advisories have been declared invalid and their application an ultra vires
act. Lumbermens, supra. Therefore, the adoption of an IR that is based on
the Advisories is legal error and must be reversed. Prior Appeals Panel
decisions applying the Advisories to rate impairment for spinal fusion surgery
have been overruled by the Lumbermens case.

The DWC will follow a declaratory judgment as to statutory rights and its prior

errors, but will not apply a District Court’s reversal of a single workers’

compensation dispute decision beyond the single workers’ compensation claim.

The DWC’s own decisions signify why declaratory judgments are allowed and

clearly necessary in this matter.

Here are several more final DWC decisions from over the years refusing to follow

the law in District Court cases:

(1) DWC APPEAL NO. 94994, 1994 TX Wrk. Comp. LEXIS 6081, September 9,

1994: “. . . nor is the Commission joined as a party. The decision is without

32
DWC Appeals Panel No. 071023-s, decided July 23, 2007, 2007 TX Wrk. Comp.
LEXIS 54.

36
No. 05-15-00195-CV Dr. Vanderwerff Appellant’s Brief
 effect, therefore, beyond its factual context, and certainly the Commission

is not bound by such a general judgment of a district court, through stare

decisis, in its interpretation of the Section 409.021.” (Emphasis added.)

(2) DWC APPEAL NO. 951802, 1995 TX Wrk. Comp. LEXIS 4964, December 13,

1995, emphasizing: “We do not consider the Appeals Panel bound by this

district court opinion in a case involving other parties and in which the

commission did not participate.”

(3) DWC Appeal No. 990005, 1999 TX Wrk. Comp. LEXIS 3029, decided

February 19, 1999: “The Appeals Panel is not bound by a district court

opinion in a case involving other parties and in which the Commission did

not participate. Texas Workers' Compensation Commission Appeal No

94994, decided September 9, 1994.” (Emphasis added.)

Appellant is legally correct in making the DWC and the Commissioner a party to a

proceeding in which legal determinations are sought to bind the DWC and the

Commissioner. Again, here the DWC voluntarily intervened.

This underlying legal questions have not been declared and determined and

are not yet up on appeal, but the declarations sought under the statutes are

critical to resolving this matter.

37
No. 05-15-00195-CV Dr. Vanderwerff Appellant’s Brief
 16. Declaratory Judgment Prevents Continued Erroneous Statutory
Interpretation by the DWC and the Commissioner

In the workers’ compensation area, after final administrative decisions as

here, both insurance carriers and injured workers’ have sought declaratory rulings

concerning the validity and applicability of the DWC and the Commissioner

statutes and rules. See Mid-Century, supra; Fulton v. Associated Indemnity

Company, 46 S.W.3d 364 (Tex. App—Austin 2002, pet. denied); Houston General

Insurance Co. v. Association Casualty Insurance Co., 977 S.W.2d 634 (Tex. App.—

Tyler, no pet.). Venue of the main action shall establish venue of a counterclaim,

cross claim, or third-party claim properly joined under the Texas Rules of Civil

Procedure or any applicable statute. TEX. CIV. PRAC. & REM. CODE §5.062(a); Howell

v. Texas Workers' Compensation Com'n, 143 S.W.3d 416, 433 (Tex. App.--Austin

2004, pet. denied). A declaratory judgment simply declares the rights, status, or

other legal relations of the parties; and under Tex. Civ. Prac. & Rem. Code

§37.003(a), (b), a trial court has the “power to declare rights, status, and other

legal relations whether or not further relief is or could be claimed,” and

declaration has the “force and effect of a final judgment or decree”. Howell at

432. Without the DWC and the Commissioner present, Appellant’s pleadings and

claims for relief would have little effect if not arguably result in an inability to be

38
No. 05-15-00195-CV Dr. Vanderwerff Appellant’s Brief
enforced against the DWC and the Commissioner at all if in fact the DWC and the

Commissioner are not a party.

CONCLUSION

This Court should allow Dr. Vanderwerff to proceed with the declaratory

judgment claim and keep as parties both the DWC and the Commissioner, in his

official capacity. The jurisdiction exists due to the live controversy, exhaustion of

administrative remedies, and the state agency and state official are necessary

parties for proper enforceability of the statutes and to ensure proper compliance

with statutory terms alleged to be violated. Otherwise only the few who continue

to fight will have a chance for justice on a piece by piece basis. The purpose of

the Declaratory Judgment Act is to make the laws clear to all affected and to

make sure the laws are properly applied and not violated by the state agency and

the head of the state agency. The Judiciary oversees the Executive Branch both

to uphold its proper actions but to also makes sure the laws are properly applied

and correctly interpreted.

39
No. 05-15-00195-CV Dr. Vanderwerff Appellant’s Brief
 PRAYER

Dr. Vanderwerff, Appellant, respectfully praysand ask that this Court should

reverse the ruling of the District Court on the plea to the jurisdiction granted to

the DWC, and not allow dismissal of the DWC and the Commissioner, and that this

Court determine that the District Court has jurisdiction to determine the

declaratory judgment matters sought by Appellant including against the DWC and

the Commissioner. Appellant ask for all other relief to which he is entitled

including costs of court.

Respectfully,

/s/ Brad McClellan
Bradley Dean McClellan
State Bar No. 13395980
Of Counsel, Law Offices of Richard Pena, P.C.
Richard Pena
Law Offices of Richard Pena, P.C
State Bar No. 00000073
1701 Directors Blvd., Suite 110
Austin, Texas 78744
Brad.McClellan@yahoo.com
(512) 327-6884 telephone
(512) 327-8354 facsimile
Attorney for Appellant

40
No. 05-15-00195-CV Dr. Vanderwerff Appellant’s Brief
 CERTIFICATE OF COMPLIANCE

I certify that I have 9,285 word count checked by the word program in compliance
with the Texas Rules of Appellate Procedure.

Bradley Dean McClellan

CERTIFICATE OF SERVICE

I certify that a copy of the foregoing Appellants’ Brief was served on the
through counsel of record by the method indicated below on May 26, 2015.

DOUGLAS D. GEYSER, Assistant Solicitor General Via efiling/eservice
ADRIENNE BUTCHER, Assistant Attorney General
OFFICE OF THE ATTORNEY GENERAL
P.O. Box 12548 (MC 059)
Austin, Texas 78711-2548
Tel.: (512) 936-2540
Fax: (512) 474-2697
douglas.geyser@texasattorneygeneral.gov
Attorneys for DWC and Commissioner

James M. Loughlin Via efiling/eservice
Stone Loughlin & Swanson, LLP
P.O. Box 3011
Austin, Texas 78755
Facsimile: (512) 343-1385
jloughlin@slsaustin.com
Counsel for Defendant Travelers
/s/ Brad McClellan
Bradley Dean McClellan

41
No. 05-15-00195-CV Dr. Vanderwerff Appellant’s Brief