ACCEPTED
03-14-00808-CV
6839427
THIRD COURT OF APPEALS
AUSTIN, TEXAS
9/9/2015 9:58:14 AM
JEFFREY D. KYLE
CLERK
NO. 03-14-00808-CV
In the Court of Appeals
Third District of Texas RECEIVED IN
3rd COURT OF APPEALS
Austin, Texas AUSTIN, TEXAS
9/9/2015 9:58:14 AM
Rosendo Morales, JEFFREY D. KYLE
Clerk
Appellant,
v.
Texas Department of Insurance-Division of
Workers’ Compensation and Commissioner
Ryan Brannan, in his Official Capacity,
Appellees.
From the District Court of Bell County, Texas, 146th District Court,
No. 269, 135-B, Honorable Jack Weldon Jones, Judge Presiding
BRIEF OF TEXAS MUTUAL INSURANCE COMPANY
AS AMICUS CURAE IN SUPPORT OF APPELLEES
Mary Barrow Nichols R. Scott Placek
State Bar No. 01831600 State Bar No. 00784769
Shannon S. Pounds Matthew J. Foerster
State Bar No. 24011600 State Bar No. 24065238
Texas Mutual Insurance Company Arnold & Placek, P.C.
6210 E. Hwy. 290 203 E. Main St., Suite 201
Austin, Texas 78723 Round Rock, Texas 78664
Telephone: (512) 224-2723 Telephone: (512) 341-7044
Facsimile: (512) 224-3214 Facsimile: (512) 341-7921
mnichols@texasmutual.com splacek@arnoldplacek.com
spounds@texasmutual.com mfoerster@arnoldplacek.com
Attorneys for Amicus Curae, Texas Mutual Insurance Company
September 9, 2015
TABLE OF CONTENTS
IDENTITY AND INTEREST OF AMICUS CURAE ...............................iii
INDEX OF AUTHORITIES ...................................................................... v
ARGUMENT ............................................................................................. 1
I. Affirming dismissal of Morales’s declaratory judgment
claim as advisory and redundant will advance the goals
of judicial economy ........................................................................... 2
A. Morales sought meaningless advisory opinions
under the UDJA ...................................................................... 3
B. Morales’s declaratory judgment claim is entirely
redundant of his suit for judicial review ................................ 7
C. By affirming on these non-immunity grounds,
the Court will narrow the remaining issues for
trial and avoid the need to address them again
in a second appeal ................................................................. 10
II. The Court must address the redundancy of
Morales’s declaratory judgment claim to determine
whether he should have been given an opportunity
to replead ......................................................................................... 11
III. Morales’s assertion that this Court has authorized
Texas Mutual to obtain redundant, declaratory relief
against the DWC is wrong and misleading ................................... 12
CONCLUSION ........................................................................................ 15
CERTIFICATE OF SERVICE................................................................. 17
CERTIFICATE OF COMPLIANCE ........................................................ 18
ii
IDENTITY AND INTEREST OF AMICUS CURAE
Texas Mutual Insurance Company is a domestic insurance company
created by the legislature to guarantee the availability of workers’
compensation insurance to Texas employers. See Tex. Ins. Code ch. 2054.
No compensation was paid to Texas Mutual for preparing or filing this
brief. See Tex. R. App. P. 11(c).
Plaintiff-Appellant, Rosendo Morales, brought identical claims under
the Uniform Declaratory Judgment Act against Texas Mutual and
Appellees, the Texas Department of Insurance, Division of Workers’
Compensation and Commissioner Ryan Brannan in his official capacity
(the “DWC”), regarding how impairment ratings in workers’
compensation should be calculated generally. Both Texas Mutual and the
DWC filed pleas to the jurisdiction on the bases that Morales’s
declaratory judgment claims (1) sought advisory opinions and (2) were
redundant to Morales’s suit against Texas Mutual for judicial review. The
DWC’s plea also asserted a sovereign immunity defense. The trial court
granted both pleas to the jurisdiction without specifying the grounds.
Morales appealed the order granting the DWC’s plea pursuant to section
51.014(8) of the Texas Civil Practice and Remedies Code.
iii
Texas Mutual files this amicus brief in support of the DWC to address
in greater detail the non-immunity grounds supporting the trial court’s
order and why this Court should address them.
iv
INDEX OF AUTHORITIES
Cases
Beacon Nat’l Ins. Co. v. Montemayor, 86 S.W.3d 260
(Tex. App.–Austin 2002, no pet.)............................................................ 7
Brinkley v. Texas Lottery Com’n, 986 S.W.2d 764
(Tex. App.–Austin 1999, no pet.)............................................................ 6
Briscoe v. Goodmark Corp., 102 S.W.3d 714
(Tex. 2003) ............................................................................................ 10
Cervantes v. New Hampshire Ins. Co., 04-12-00722-CV
2013 WL 3486824 (Tex. App.–San Antonio
July 10, 2013, pet. denied) ..................................................................... 8
Cincinnati Life Ins. Co. v. Cates, 927 S.W.2d 623
(Tex. 1996). ............................................................................................. 2
Del Indus., Inc. v. Texas Workers’ Comp. Ins. Fund, 973 S.W.2d 743
(Tex. App.–Austin 1998), aff’d, 35 S.W.3d 591 (Tex. 2000). .................. 2
Harvel v. Texas Dep’t of Ins.-Div. of Workers’ Comp., 13-14-00095-CV
2015 WL 3637823 (Tex. App.–Corpus Christi
June 11, 2015, no. pet. h.) .................................................... 8, 11, 12, 13
Hernandez v. Texas Dept. of Ins., Div. of Workers’ Comp.,
04-14-00123-CV, 2014 WL 3747306 (Tex. App.–San Antonio
July 30, 2014, no pet.) ............................................................................ 8
Howell v. Texas Workers’ Comp. Com’n, 143 S.W.3d 416
(Tex. App.–Austin 2004, pet. denied)................................................... 14
Med Ctr. Bank v. Fleetwood, 854 S.W.2d 278
(Tex. App.–Austin 1993), writ denied (Sept. 29, 1993)........................ 10
Natural Gas Pipeline Co. of Am. v. Pool, 124 S.W.3d 188
(Tex. 2003). ............................................................................................. 2
Patterson v. Planned Parenthood of Houston & Se. Texas, Inc.,
971 S.W.2d 439 (Tex. 1998) .................................................................... 3
v
Rusk State Hosp. v. Black, 392 S.W.3d 88
(Tex. 2012) ............................................................................................ 11
Tex. Ass’n of Bus. v. Texas Air Control Bd., 852 S.W.2d 440
(Tex. 1993) ...................................................................................... 3, 6, 7
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). .......... 5
Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217
(Tex. 2004). ........................................................................................... 12
Tex. Dep’t of Pub. Safety v. Moore, 985 S.W.2d 149
(Tex. App.–Austin 1998, no pet.)........................................................ 3, 4
Tex. Dep’t of State Health Servs. v. Balquinta, 429 S.W.3d 726
(Tex. App.–Austin 2014, pet. dism’d). .................................................... 7
Texas Mutual v. Texas Dept. of Ins., Div. of Workers’ Comp,
214 S.W.3d 613 (Tex. App.–Austin 2006, no pet.) ............................... 13
Texas Workers’ Comp. Ins. Fund v. Texas Workers’ Comp. Com’n &
Watts, 124 S.W.3d 813, 822-23 (Tex. App.–Austin 2003
pet. denied). ........................................................................................... 15
Statutes
Tex. Admin. Code § 130.1(a) ..................................................................... 7
Tex. Lab. Code § 401.011(23) ................................................................ 4, 6
Tex. Lab. Code § 401.011(30). ................................................................... 4
Tex. Lab. Code § 408.123 .......................................................................... 7
Tex. Lab. Code § 408.124 .......................................................................... 5
Tex. Lab. Code § 410.251 .......................................................................... 8
vi
ARGUMENT
The Court should affirm dismissal of Morales’s declaratory
judgment claim on the grounds that it seeks advisory opinions
and relief redundant to his judicial review action.
This interlocutory appeal presents three jurisdictional questions: (1)
is the DWC immune? (2) is Rosendo Morales’s claim under the Uniform
Declaratory Judgment Act (“UDJA”) redundant of his judicial review
suit? and (3) do Morales’s declaratory judgment claims seek advisory
opinions? Sovereign immunity aside, this Court should address the
remaining jurisdictional issues for two reasons.
First, resolving all jurisdictional defects now will advance the
interests of judicial economy by avoiding the need for a second appeal. If
the Court affirms only on immunity grounds, then it would leave open
the questions of whether the declaratory judgment claims are advisory
and redundant, and Morales would have to file a traditional appeal to
obtain review of the order dismissing his declaratory judgment claim
against Texas Mutual.
Second, even if the Court finds that Morales’s declaratory judgment
claim against the DWC is barred by immunity, the Court must address
whether it was redundant of his judicial review claim when the Court
1
decides whether Morales should have been given an opportunity to
replead.
Texas Mutual dedicates the remainder of its brief to correcting
Morales’s mischaracterization of other cases in which Texas Mutual
sought declaratory relief. None of those cases involved claims or
circumstances like Morales’s.
I. Affirming dismissal of Morales’s declaratory judgment claim as
advisory and redundant will advance the goals of judicial economy.
In the interest of judicial economy, appellate courts should consider all
grounds for dismissal that were preserved for review. Cincinnati Life
Ins. Co. v. Cates, 927 S.W.2d 623, 625 (Tex. 1996). Judicial economy
“require[s] that dispositive issues must be considered and resolved and
that a judgment moving the case to the greatest degree of finality must
be rendered.” Natural Gas Pipeline Co. of Am. v. Pool, 124 S.W.3d 188,
201 (Tex. 2003). This Court has recognized its obligation to dispose of as
many issues and claims as possible while a case is on appeal. Del Indus.,
Inc. v. Texas Workers’ Comp. Ins. Fund, 973 S.W.2d 743, 748 (Tex. App.–
Austin 1998), aff’d, 35 S.W.3d 591 (Tex. 2000). The Court should
discharge that obligation by deciding the two jurisdictional questions
that will continue to haunt Morales and Texas Mutual when this
2
litigation recommences in the trial court, saving the parties significant
time and resources.
A. Morales sought meaningless advisory opinions under the
UDJA.
The trial court correctly dismissed Morales’s declaratory judgment
claims because they sought meaningless declarations unconnected to any
specific person or concrete dispute. See Tex. Dept. of Pub. Safety v.
Moore, 985 S.W.2d 149, 153 (Tex. App.–Austin 1998, no pet.) (holding
that the declaratory judgment sought must resolve a justiciable
controversy as to the rights and status of the parties). Declarations that
address abstract questions of law without binding the parties constitute
advisory opinions, which are constitutionally prohibited. 1 Texas Ass’n of
Bus. v. Texas Air Control Bd., 852 S.W.2d 440, 444 (Tex. 1993). Judicial
time and resources must be conserved for real and current controversies,
rather than abstract, hypothetical, or remote disputes. Patterson v.
Planned Parenthood of Houston & Se. Texas, Inc., 971 S.W.2d 439, 443
(Tex. 1998).
1 The DWC framed this issue as one of ripeness. See Appellees’ Brief at 22-23. The
“constitutional roots” of the ripeness doctrine are the prohibition against advisory
opinions and the separation of powers doctrine. Patterson v. Planned Parenthood of
Houston & Se. Texas, Inc., 971 S.W.2d 439, 442-43 (Tex. 1998).
3
Morales sought vague declarations that lacked any substantive
content to guide the parties or others. Taken from his amended petition,
Morales asked the trial court to declare:
1. that spine impairment ratings under the Texas Workers’ Compensation Act
must take into consideration spinal surgeries and the effects of spinal surgeries
when the surgeries occur prior to maximum medical improvement;
2. that under Texas Labor Code Section 401.011 and Chapter 408 concerning
impairment ratings that the DWC designated doctor’s report is legally invalid
because while clearly aware [of] the pre-MMI2 surgery [he] completely
ignored the serious type of spinal fusion surgery; and
3. that an “impairment” must be from an examination done after MMI has been
reached and must be based upon the doctor’s evaluation of the injured
workers’ condition after MMI including full consideration of the surgeries and
the effects of surgery prior to MMI being reached.
Those declarations fail to address or resolve a justiciable controversy.
See Moore, 985 S.W.2d at 153. Texas law already provides that an
employee’s “impairment”—any anatomic or functional abnormality or
loss resulting from a compensable injury that reasonably appears to be
permanent—must be based on the employee’s condition existing after
maximum medical improvement. See Tex. Lab. Code § 401.011(23).
2 MMI refers to maximum medical improvement, defined as “the earliest date after
which, based on reasonable medical probability, further material recovery from or
lasting improvement to an injury can no longer reasonably be anticipated.” Tex. Lab.
Code § 401.011(30).
4
No portion of the statute or related rules limits the ability of a doctor
to consider the effects of a pre-MMI surgery when rating impairment. No
party contends that the doctor may not consider such surgical effects.
Morales could not point to any decision, order, advisory, or action by the
DWC or by Texas Mutual that indicates otherwise. Indeed, Texas Mutual
contends that Morales’s spinal surgery was successful and reduced what
his impairment might otherwise have been without it. Morales’s real
complaint is how the effects of his own surgery were considered by the
designated doctor in his case, a dispute that will be resolved entirely
through his claim for judicial review. 3
Multiple factors affect how a doctor might consider the effects of
surgery when rating impairment. Recognizing the fact-intensive nature
of impairment, the Legislature adopted the American Medical
Association’s Guides to the Evaluation of Permanent Impairment, which
all doctors must follow to determine impairment in workers’
compensation claims. Tex. Lab. Code § 408.124. Not even the DWC has
authority to modify those guidelines or provide alternate assessment
standards through advisories or rules. See Tex. Dep’t of Ins., Div. of
3 See Infra, § B.
5
Workers’ Comp. v. Lumbermens Mut. Cas. Co., 212 S.W.3d 870 (Tex.
App.–Austin 2006, pet. denied). Neither may the courts through the
UDJA.
Even if an actual controversy existed in this case over whether the
effects of surgery may be considered, the declarations Morales seeks
would not resolve it. On their face, the declarations are hypothetical and
abstract, detached from any concrete facts, circumstances or legal
realities. Declaring that the effects of a surgery must be “considered”
would tell the next doctor merely to think carefully about the employee’s
physical condition at the time of the evaluation—nothing more than what
the statute already requires. See Tex. Lab. Code § 401.011(23).
Morales’s requested declarations are advisory because they merely
declare abstract propositions of law without granting specific relief to a
litigant or affecting legal relations. See Texas Ass’n of Bus., 852 S.W.2d
at 444; Brinkley v. Texas Lottery Com’n, 986 S.W.2d 764, 767 (Tex. App.–
Austin 1999, no pet.). He does not challenge the validity of any law or ask
for a determination of his own rights or status. Morales would have the
trial court instruct unnamed persons on how to perform impairment
ratings in the future, unrelated to any concrete impairment-rating
6
dispute. Such declarations would not bind the parties or even the doctors
who perform impairment ratings. 4
The trial court lacks subject-matter jurisdiction over Morales’s
declaratory judgment claim because it seeks an advisory opinion. See
Texas Ass’n of Bus., 852 S.W.2d at 444. The trial court properly dismissed
it.
B. Morales’s declaratory judgment claim is entirely redundant of
his suit for judicial review.
The power of courts to issue declaratory judgments in the face of
administrative proceedings is limited. Beacon Nat’l Ins. Co. v.
Montemayor, 86 S.W.3d 260, 267 (Tex. App.–Austin 2002, no pet.). Under
the redundant remedies doctrine, when a plaintiff “has invoked a
statutory means of attacking an agency order, a trial court lacks
jurisdiction over an additional claim under the UDJA that would merely
determine the same issues and provide what is substantively the same
relief that would be provided by the other statutory remedy.” Tex. Dep’t
of State Health Servs. v. Balquinta, 429 S.W.3d 726, 746 (Tex. App.–
4Only doctors may perform impairment ratings, but Morales did not make any doctor
a party to his declaratory judgment claim. See Tex. Lab. Code § 408.123; 28 Tex.
Admin. Code § 130.1(a). Thus, Morales’s proposed declaratory relief would not even
bind the persons who assign impairment ratings.
7
Austin 2014, pet. dism’d). If Morales’s declarations would give him any
tangible relief at all, that relief would be redundant of his suit for judicial
review, which is the final step in the statutory process for resolving
workers’ compensation disputes, and which is still pending at the trial
court. See Tex. Lab. Code § 410.251, et seq.
Texas courts have barred redundant declaratory relief in a string of
recent judicial review cases brought by workers’ compensation claimants.
See, e.g., Harvel v. Texas Dep’t of Ins.-Div. of Workers’ Comp., 13-14-
00095-CV, 2015 WL 3637823, at *1, 4 (Tex. App.–Corpus Christi June
11, 2015, no. pet. h.) (dismissing UDJA claim regarding when police
officers generally should be considered in the course and scope of
employment); Hernandez v. Texas Dept. of Ins., Div. of Workers’ Comp.,
04-14-00123-CV, 2014 WL 3747306, at *2 (Tex. App.–San Antonio July
30, 2014, no pet.) (dismissing UDJA claim that the DWC abide by the
Workers’ Compensation Act and DWC rules); Cervantes v. New
Hampshire Ins. Co., 04-12-00722-CV, 2013 WL 3486824, at *2 (Tex.
App.–San Antonio July 10, 2013, pet. denied) (holding that claimant’s
UDJA claim and the grounds on which he sought judicial review were
directed at his challenge to the validity of the doctor’s impairment rating
8
certification, which claimant contended did not comply with applicable
rules). 5
Morales’s declaratory judgment claims are redundant of his judicial
review suit. He does not attempt to demonstrate otherwise. Each
declaration requested merely restates an argument Morales made before
the DWC to obtain a higher impairment rating. The trial court will fully
resolve that dispute through the judicial review process provided in
Chapter 410 of the Labor Code. Judicial review gives Morales the right
to seek (1) reversal of the DWC’s order and (2) the award of a different,
valid impairment rating. None of Morales’s declarations would give him
any additional relief. As is clear from three very recent appellate
decisions, the redundant remedies doctrine prevents courts from
expanding their jurisdiction to award unnecessary declaratory relief.
5 Morales’s counsel, Bradley D. McClellan, was also the attorney for the plaintiff in
Harvel. Mr. McClellan currently represents other claimants seeking declaratory
relief in workers’ compensation judicial review cases pending in the Fifth Court of
Appeals, VanderWerff v. Texas Dep’t of Ins.-Div. of Workers’ Comp., No. 05-15-00195-
CV, and in the First Court of Appeals, Texas Dep’t of Ins.-Div. of Workers’ Comp. v.
Green, No. 01-15-00321-CV.
9
C. By affirming on these non-immunity grounds, the Court will
narrow the remaining issues for trial and avoid the need to
address them again in a second appeal.
Affirming the trial court’s order based on the non-immunity
jurisdictional defects will serve the interests of judicial economy,
establish law of the case, and eliminate a second, unnecessary appeal of
the order dismissing Morales’s declaratory judgment claim against Texas
Mutual. The “law of the case doctrine” is used to narrow the legal issues
at successive stages of the litigation and provide uniformity of decisions
as well as judicial economy intended to put an end to litigation. Briscoe
v. Goodmark Corp., 102 S.W.3d 714, 716 (Tex. 2003); Med Ctr. Bank v.
Fleetwood, 854 S.W.2d 278, 283 (Tex. App.–Austin 1993), writ denied
(Sept. 29, 1993). This case favors the Court resolving all three
jurisdictional issues while reviewing the appealed order.
Both the advisory opinion and redundant-remedy issues were briefed
and argued by the parties at the trial court, and they are preserved in
the record. By addressing whether Morales’s declaratory judgment claim
is barred on those grounds, the Court will save Morales from having to
file a second appeal after final judgment to obtain review of the order
dismissing his identical declaratory judgment claims against Texas
10
Mutual. Wherever possible, appellate courts must decide issues that will
save the time and expense inherent in a second, unnecessary appeal of
the same jurisdictional issues. See Rusk State Hosp. v. Black, 392 S.W.3d
88, 101-02 (Tex. 2012) (Hecht, J., concurring) (“Because an appellate
court can decide an immunity issue beyond the scope of an interlocutory
appeal, and there are reasons why it should, I agree with the Court that
it must do so unless, as in this case, the record has not been sufficiently
developed.”) (emphasis in orig.).
The posture of this case gives the Court an ideal opportunity to
conserve additional time and expense by affirming the trial court’s order
of dismissal on the non-immunity grounds presented and preserved by
the parties. The Court should hold that Morales’s declaratory judgment
claim seeks advisory opinions and relief that is entirely redundant of his
pending action for judicial review.
II. The Court must address the redundancy of Morales’s declaratory
judgment claim to determine whether he should have been given
an opportunity to replead.
Independent of prudential concerns, the Court must address whether
Morales’s declaratory judgment claim is redundant to determine whether
he should have been given an opportunity to replead. See Harvel, 2015
11
WL 3637823, at *4. If a jurisdictional defect may be cured, the plaintiff
is generally afforded an opportunity to replead. Texas Dept. of Parks &
Wildlife v. Miranda, 133 S.W.3d 217, 226-27 (Tex. 2004). But when the
pleadings affirmatively negate jurisdiction by seeking redundant relief,
then the defect is not curable and outright dismissal is appropriate. Id.
at 227; Harvel, 2015 WL 3637823, at *4.
In Harvel, the court determined it would not afford the claimant an
opportunity to replead because the relief requested under the UDJA
“mirrors the relief he requested in the suit for judicial review.” Id. His
suit for judicial review and his declaratory judgment claims sought the
same rulings: (1) that a peace officer is in the course and scope of his
employment as soon as he witnesses an illegal act, and (2) that employer-
directed travel includes travel from the employee’s home to a specially-
assigned work location. Id. Because the claimant would receive the same
relief in either suit—reversal of the final order denying him workers’
compensation benefits—the duplicative nature of his UDJA claim
“affirmatively negated jurisdiction.” Id.
The same redundancy analysis is required here. The Court should
perform the redundancy analysis and hold that Morales’s declaratory
12
judgment claim, as redundant to his suit for judicial review, affirmatively
negated jurisdiction. See id.
III. Morales’s assertion that this Court has authorized Texas Mutual to
obtain redundant, declaratory relief against the DWC is wrong and
misleading.
Morales grossly mischaracterizes three cases involving declaratory
judgment claims against the DWC brought by Texas Mutual or other
carriers. See Appellant’s Br. 19-24. Those cases do not apply to the facts
in this case, and they do not stand for the proposition urged by Morales
that carriers’ declaratory judgment claims are always permissible
against the DWC. Two of the cases—Texas Mutual and Howell—were not
even judicial review cases. And in the third, Watts, this Court never
examined the subject-matter jurisdiction of the declaratory judgment
claim.
The least relevant case, Texas Mutual v. Texas Dept. of Ins., Div. of
Workers’ Comp, involved Texas Mutual’s action for declaratory judgment
that it had no duty to defend or indemnify a policyholder under an
Employers’ Liability Insurance policy. 214 S.W.3d 613 (Tex. App.–Austin
2006, no pet.). Because the declaratory judgment claim did not pertain in
any way to workers’ compensation benefits, it was not redundant to any
13
statutory mechanism for relief. Moreover, Texas Mutual’s UDJA claim
did not seek the mere construction of a statute, unconnected with a
concrete dispute, as Morales does here.
Morales also argues that Howell, another case not involving judicial
review, supports finding jurisdiction for his declaratory judgment action.
In Howell, the Court held that the declaratory judgment in favor of Texas
Mutual and other parties was not advisory because it declared that the
medical fee dispute rules were constitutional and that the plaintiffs, a
chiropractor and his clinic, must follow those agency rules and
procedures before suing carriers in district court. Howell v. Texas
Workers’ Comp. Com’n, 143 S.W.3d 416, 441 (Tex. App.–Austin 2004, pet.
denied). Morales’s UDJA claim, by contrast, does not address a dispute
over the constitutionality or validity of any statute or rule.
Finally, although Texas Mutual’s predecessor (the Fund) did seek
judicial review against a claimant and declaratory relief against the
DWC in Watts, that case is distinguishable for two reasons. First, unlike
Morales’s UDJA action, the Fund claimed that the agency’s appeals panel
exceeded its statutory authority by setting aside a hearing officer’s
decision on factual sufficiency grounds. Texas Workers’ Comp. Ins. Fund
14
v. Texas Workers’ Comp. Com’n & Watts, 124 S.W.3d 813, 822-23 (Tex.
App.–Austin 2003, pet. denied). But here, Morales does not assert that
the DWC exceeded its authority in any respect Second, the Court
rendered judgment against the Fund on both claims without addressing
whether the trial court had jurisdiction over the UDJA action. Id. at 822-
24. Morales’s suggestion that this Court expressly “allowed” the Fund “to
bring a declaratory judgment action against the injured worker and the
Texas Workers’ Compensation Commission,” or held that it was “proper”
to do so in judicial review suits generally, is wrong and misleading.
Appellant’s Br. at 18-19.
Unlike the UDJA claims in the above cases, Morales does not
challenge the validity of a rule or the DWC’s authority to take a specific
action. Morales cites no case, because none exists, holding that a court
has subject-matter jurisdiction to issue a declaratory judgment that does
not award the requesting party any relief beyond a particular workers’
compensation claim.
CONCLUSION
Even if this Court decides that the DWC’s sovereign immunity bars
Morales’s declaratory judgment claim, the Court also should hold that
15
Morales’s declaratory judgment claims improperly seek advisory
opinions and are redundant of his pending action for judicial review
against Texas Mutual. Those jurisdictional issues are squarely before
this Court. Deciding them now will give clarity to the remaining parties,
narrow the issues for trial, and avoid the need to litigate them again in a
traditional appeal of the order granting Texas Mutual’s plea to the
jurisdiction.
Respectfully submitted,
ARNOLD & PLACEK, P.C.
203 East Main Street, Suite 201
Round Rock, Texas 78664
Telephone: (512) 341-7044
Facsimile: (512) 341-7921
By: /s/ R. Scott Placek
R. SCOTT PLACEK
State Bar No. 00784769
splacek@arnoldplacek.com
MATTHEW J. FOERSTER
State Bar No. 24065238
mfoerster@arnoldplacek.com
16
TEXAS MUTUAL INSURANCE CO.
Mary Barrow Nichols
State Bar No. 01831600
mnichols@texasmutual.com
Shannon S. Pounds
State Bar No. 24011600
spounds@texasmutual.com
ATTORNEYS FOR TEXAS MUTUAL
INSURANCE COMPANY
CERTIFICATE OF SERVICE
I certify that a true and correct copy of Texas Mutual’s Amicus Curae
Brief in Support of Appellees was served electronically on counsel of
record via e-mail and ProDoc eService on September 9, 2015.
Bradley Dean McClellan
Of Counsel, 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
Adrienne Butcher
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
Email: adrienne.butcher@texasattorneygeneral.gov
/s/ Matthew J. Foerster
17
CERTIFICATE OF COMPLIANCE
1. This brief complies with applicable length limitations under Tex. R.
App. P. 9.4(i) because it contains 4,230 words as calculated using the
“word count” feature of Microsoft Word 2013.
2. This petition has been written in a proportionately spaced typeface
(Century), size 14-point in the body text and 12-point in footnotes, in
compliance with Tex. R. App. P. 9.4(e).
/s/ Matthew J. Foerster
18
Rosendo Morales v. Texas Department of Insurance-Division of Workers' Compensation, and Commissioner Ryan Brannan, in His Official Capacity
Combined Opinion