Dr. Louis Patino, D.C. Dr. Stephen Wilson, M.D. And Dr. Gary Craighead, D.C. v. Texas Department of Insurance-Division of Workers' Compensation Commissioner Cassandra J. Brown and Dr. Donald Patrick, in Their Official and Individual Capacities State Office of Administrative Hearings, Texas Chief Administrative Law Judge Cathleen Parsley in Her Official Capacity Tommy Broyles, in His Official Capacity The State of Texas And the Attorney General of the State of Texas

Affirmed in Part, Reversed and Remanded in Part, and Opinion filed
March 17, 2020.

In The

Fourteenth Court of Appeals

NO. 14-18-00274-CV

DR. LOUIS PATINO, D.C.; DR. STEPHEN WILSON, M.D.; AND DR.
GARY CRAIGHEAD, D.C., Appellants
V.

TEXAS DEPARTMENT OF INSURANCE-DIVISION OF WORKERS’
COMPENSATION; COMMISSIONER RYAN BRANNAN AND DR.
DONALD PATRICK, IN THEIR OFFICIAL AND INDIVIDUAL
CAPACITIES; STATE OFFICE OF ADMINISTRATIVE HEARINGS,
TEXAS; CHIEF ADMINISTRATIVE LAW JUDGE CATHLEEN
PARSLEY, IN HER OFFICIAL CAPACITY; TOMMY BROYLES, IN HIS
OFFICIAL CAPACITY; THE STATE OF TEXAS; AND THE ATTORNEY
GENERAL OF THE STATE OF TEXAS, Appellees

On Appeal from the 126th District Court
Travis County, Texas
Trial Court Cause No. D-1-GN-12-002272

OPINION

Appellants Louis Patino, D.C.; Stephen Wilson, M.D.; and Gary Craighead,
D.C. (the doctors) challenge the trial court’s dismissal of their claims for lack of
jurisdiction against appellees Texas Department of Insurance-Division of Workers’
Compensation (the Division); Commissioner Ryan Brannan (the Commissioner)
and Dr. Donald Patrick; State Office of Administrative Hearings, Texas; Chief
Administrative Law Judge Cathleen Parsley; Administrative Law Judge Tommy
Broyles; the State of Texas; and the Texas Attorney General.1 Concluding that the
trial court properly dismissed the doctors’ claims challenging final agency orders
but erred in dismissing the doctors’ constitutional and statutory interpretation
challenges and ultra vires claims, we affirm in part and reverse and remand in part.

Background

The doctors were excluded from the State’s workers’ compensation system
approved doctor list by final agency orders of the Workers’ Compensation
Commission (the Commission) in 2004 and 2005 and by final agency order of the
Division in 2007.2 Exclusion from the approved doctor list prevents the doctors
from treating patients under the workers’ compensation system. Patino did not
appeal. Wilson sought declaratory and injunctive relief in response to the 2005
order denying him admission to the approved doctor list. Wilson v. Tex. Workers’
Comp. Comm’n, No. 03-04-00627-CV, 2008 WL 5264875, at *1 (Tex. App.—
Austin Dec. 17, 2008, no pet.) (mem. op.). Wilson argued that the Commission
1
The current commissioner has been substituted for his predecessor. See Tex. R. App. P.
7.2(a) (“When a public officer is a party in an official capacity to an appeal or original
proceeding, and if that person ceases to hold office before the appeal or original proceeding is
finally disposed of, the public officer’s successor is automatically substituted as a party if
appropriate.”).
This case was transferred to our court from the Third Court of Appeals; therefore, we
must decide the case in accordance with its precedent if our decision would be otherwise
inconsistent with its precedent. See Tex. R. App. P. 41.3.
2
Effective September 1, 2005, the Commission was abolished and reorganized under the
Division. See Act of May 29, 2005, 79th Leg., R.S., ch. 265, § 8.001, 2005 Tex. Gen. Laws 469,
607-08.

2
acted without authority in promulgating rules that allowed it to terminate the prior
approved doctor list and exclude him from a new approved doctor list. Id. The trial
court granted summary judgment in favor of the Commission, and the Third Court
of Appeals affirmed. Id. Craighead also sought injunctive relief from the decision
to exclude him from the approved doctor list. The trial court concluded, among
other things, that Craighead failed to show a “property right to provide health care
services in Texas’ statutory workers’ compensation system or that a
constitutionally protected liberty interest [was] at issue” and denied Craighead’s
application for injunctive relief.

The Division subsequently initiated administrative proceedings against
Patino and Craighead in the State Office of Administrative Hearings (SOAH),
alleging that Patino and Craighead improperly provided care to or received
remuneration from workers’ compensation claimants after being denied admission
to the approved doctor list. The doctors filed this lawsuit in July 2012, seeking to
enjoin the administrative proceedings from going forward. The trial court denied
injunctive relief.

Administrative law judges for the SOAH assessed administrative penalties
against Patino and Craighead of $55,000 and $45,000, respectively. The doctors
then amended their pleadings in this lawsuit to seek judicial review of the SOAH
administrative law judges’ orders.3 Appellees filed pleas to the jurisdiction, which
the trial court granted, dismissing all defendants and all claims for want of
jurisdiction. The doctors then filed a motion for new trial, which the trial court
denied. This appeal followed.

3
The doctors sued the Division, the Commissioner, an employee of the Division, SOAH,
two administrative law judges, the State, and the attorney general.

3
 Discussion

The doctors challenge the trial court’s dismissal of their claims for want of
jurisdiction, contending that (1) they can challenge the 2004, 2005, and 2007 final
agency orders as void, (2) they can challenge the SOAH administrative law judges’
final orders assessing penalties, (3) their constitutional challenges to the Workers’
Compensation Act and to the Division’s interpretation of the Act were timely and
could be brought in the trial court, (4) they were entitled to bring a declaratory
judgment action to determine their rights under the statute, and (5) they are entitled
to injunctive relief to prevent “continued wrongs from occurring,” “any proven
unlawful acts,” and “yet to be proven unconstitutional acts.”4 Appellees contend
the trial court lacked jurisdiction over this action because (1) the doctors may not
collaterally attack final agency decisions, (2) Patino and Craighead did not wait for
the administrative orders to become final before filing suit, and (3) Wilson has no
administrative actions to appeal.

We review a plea challenging the trial court’s jurisdiction de novo. State v.
Holland, 221 S.W.3d 639, 642 (Tex. 2007). We first look to the pleadings to
determine if the pleader has alleged facts that affirmatively demonstrate the court’s
jurisdiction to hear the cause. Tex. Dep’t of Parks & Wildlife v. Miranda, 133
S.W.3d 217, 226 (Tex. 2004). We construe the pleadings liberally in favor of the

4
The Workers’ Compensation Act establishes a “comprehensive scheme whereby
employees who are covered by workers’ compensation insurance and incur ‘compensable’
injuries are provided the exclusive remedy of ‘workers’ compensation benefits,’” including
“medical benefits” (i.e., “all health care reasonably required by the nature of the injury as and
when needed”), to be paid by the insurance carrier that covers each worker. Vista Med. Ctr.
Hosp. v. Tex. Mut. Ins. Co., 416 S.W.3d 11, 15 (Tex. App.—Austin 2013, no pet.) (citing Tex.
Lab. Code §§ 401.011(10), (31), 406.031, 408.001, 408.021). In turn, the Act “gives a health
care provider who provides medical benefits . . . the right to reimbursement from the workers’
compensation carrier that covers the employee.” Id. (citing Tex. Lab. Code § 408.027(a)). The
Act is codified in chapters 401 through 506 of the Labor Code. See Tex. Labor Code
§§ 401.001-506.002.

4
plaintiff, look to the pleader’s intent, and accept as true the factual allegations in
the pleadings. Id. If the issue is one of pleading sufficiency, the plaintiffs should be
afforded the opportunity to amend unless the pleadings affirmatively negate
jurisdiction. Id. at 227.

I. Collateral Attacks on Final Agency Orders

The doctors contend that they can challenge the 2004, 2005, and 2007 final
agency orders as void. Under the Administrative Procedures Act (APA), a person
who is aggrieved by a final decision in a contested case and who has exhausted his
administrative remedies is entitled to judicial review. See Castillo v. State, No. 03-
11-00503-CV, 2012 WL 3793276, at *3 (Tex. App.—Austin Aug. 29, 2012, no
pet.) (mem. op.) (citing Tex. Gov’t Code §§ 2001.171-.178). Wilson and
Craighead both exhausted their administrative remedies and sought judicial review
of the final agency orders, and those appeals were finally disposed. Patino did not
perfect judicial review of the final agency order against him. Accordingly, all three
orders are final and unappealable. See id. at *4.

A trial court generally does not have jurisdiction to review an administrative
order that is final and unappealable. See Castillo, 2012 WL 3793276, at *3–4; Jolly
v. State, 856 S.W.2d 859, 861 (Tex. App.—Austin 1993, writ denied).
Accordingly, such orders ordinarily are immune from collateral attack. Peterson v.
Tex. Bd. of Chiropractic Examiners, No. 03-97-00652-CV, 1998 WL 333267, at *3
(Tex. App.—Austin June 25, 1998, pet. denied) (mem. op., not designated for
publication). A final order that is valid on its face similarly is not subject to
collateral attack. Id.; Jolly, 856 S.W.2d at 861. Exceptions to this rule apply when
an order involves fundamental error or when an agency acts beyond its statutory
authority. Peterson, 1998 WL 333267, at *3.

The doctors contend that the final orders are void because, according to the
5
doctors, they were issued by the medical advisor, who lacked authority to remove
the doctors from the approved doctor list. The doctors assert that before September
2005, the Commission could take action only by a majority vote of its members,
and the failure to do so rendered the 2004 and 2005 orders void. See Tex. Labor
Code § 402.004(a) (repealed 2005) (“The commission may take action only by a
majority vote of its membership.”). As to the 2007 order, the doctors assert that
only the Commissioner could issue the order. See id. § 402.072 (recodified at Tex.
Labor Code § 415.0215) (“Only the commissioner may impose . . . a sanction that
deprives a person of the right to practice before the division or of the right to
receive remuneration under this subtitle for a period exceeding 30 days.”).

Although the final orders are signed by the medical advisor, they do not
reflect that the Commission failed to take a vote before removing Wilson and
Patino in 2004 and 2005 from the approved doctor list or that the Commissioner of
the Division failed to remove Craighead in 2007. In the 2004 order, the medical
advisor notified Wilson that it was “the Commission’s final decision to deny [him]
admission to the Approved Doctor List.” (Emphasis added). The 2005 order
contains similar language addressed to Patino: “This letter serves as official notice
that the Texas Workers’ Compensation Commission . . . has denied you admission
to its Approved Doctor List.” (Emphasis added). As for the 2007 order, Craighead
was notified that “the Texas Department of Insurance, Workers Compensation
Division . . . denied [his] application for admission to its Approved Doctor List.”
Accordingly, these final orders are not inconsistent with the statutes’ requirements
and appear valid on their face. On the record before us, the orders are not subject to
collateral attack. See, e.g., Bedell v. State, No. 03-16-00328-CV, 2017 WL
6756996, at *3 (Tex. App.—Austin Dec. 19, 2017, no pet.) (mem. op.); Peterson,
1998 WL 333267, at *4; Jolly, 856 S.W.2d at 861.

6
 II. SOAH Administrative Orders

The doctors also contend that they can challenge the SOAH administrative
law judges’ final orders assessing penalties. Appellees contend that the trial court
never acquired subject matter jurisdiction over the appeal of the orders assessing
penalties because Patino and Craighead did not exhaust their administrative
remedies before filing suit. Instead, they filed suit to enjoin the administrative
process from going forward. Wilson joined the lawsuit even though he was not
subject to any administrative action. The doctors contend that the trial court
acquired jurisdiction over the issue when they amended their petition after the
penalties were assessed.

The Third Court of Appeals has held that when the APA applies, it requires
exhaustion of remedies before seeking judicial review in the courts. Marble Falls
Indep. Sch. Dist. v. Scott, 275 S.W.3d 558, 564 (Tex. App.—Austin 2008, pet.
denied); see also Tex. Gov’t Code §§ 2001.001-.903 (APA). The parties agree that
the APA applies here, and indeed, unless otherwise provided, the APA’s judicial
review procedures apply to agency governed proceedings. See Marble Falls ISD,
275 S.W.3d at 564 (citing Tex. Gov’t Code §§ 2001.001, .051-.178).

In the Marble Falls ISD case, a group of parents of school aged children
sought to detach their land from Marble Falls ISD and annex it to Lake Travis ISD.
Id. at 560. The Commissioner of Education granted their petition. Id. Marble Falls
ISD filed suit, seeking a declaratory judgment, trial de novo, and injunctive relief
against the commissioner’s decision. Id. The parents filed pleas to the jurisdiction
asserting that because Marble Falls ISD filed its petition before the commissioner
made a final ruling on Marble Falls ISD’s motion for rehearing in the
administrative proceeding, Marble Falls ISD had not exhausted its administrative
remedies. Id. at 561. The trial court granted the pleas for want of jurisdiction. Id. In

7
affirming, the Third Court held that even though the commissioner denied the
motion for rehearing during the pendency of the trial court case, the cause did not
ripen. Id. at 565-66.

The court of appeals addressed “if and when a jurisdictional defect created
by a failure to exhaust administrative remedies may ‘ripen’ and whether such
jurisdictional defects would require abatement rather than dismissal.” Id. at 565.
Marble Falls ISD argued that abatement or an opportunity to replead would be the
appropriate remedy. Id. The court noted, “If an administrative body has exclusive
jurisdiction, a party must exhaust all administrative remedies before seeking
judicial review of the decision. Until the party has satisfied this exhaustion
requirement, the trial court lacks subject matter jurisdiction and must dismiss those
claims without prejudice to refiling.” Id. (quoting Thomas v. Long, 207 S.W.3d
334, 340 (Tex. 2006)). Thus, to seek judicial review, a party must be “aggrieved by
a final decision” and must have “exhausted all administrative remedies available.”
Id. Because the trial court never had jurisdiction over the case, it could not abate it
to allow time to cure or allow repleading. Id. at 566. Accordingly, Marble Falls
ISD’s failure to satisfy the jurisdictional prerequisite of awaiting a final decision
before filing suit resulted in a lack of jurisdiction that could not be cured. Id. at
568.

Here, there is no dispute that the doctors filed suit before awaiting a final
decision from the SOAH. Their amendment after the fact did not cure the trial
court’s lack of jurisdiction over the issue.5 See id.; see also Foster v. Teacher Ret.
Sys., 273 S.W.3d 883, 891 (Tex. App.—Austin 2008, no pet.) (“In this case, the

5
The APA was amended effective September 2015 to allow for “prematurely filed
petition[s] . . . to initiate judicial review.” See Tex. Gov’t Code § 2001.176. The amended statute
was not in effect when this lawsuit was filed and the SOAH administrative penalties were
assessed.

8
trial court lacked jurisdiction over both defendants, and dismissal, not abatement to
cure a timing issue, was appropriate.”).

III. Constitutional Challenges

The doctors also contend that the trial court has jurisdiction over their
constitutional challenges to the Workers Compensation Act and their challenges to
the Division’s interpretation of the Act. Sovereign immunity implicates a trial
court’s jurisdiction and when applicable, precludes suit against a governmental
entity. See Patel v. Tex. Dep’t of Licensing & Regulation, 469 S.W.3d 69, 75 (Tex.
2015). Sovereign immunity is inapplicable when a suit challenges the
constitutionality of a statute and seeks only equitable relief. Id. at 75-76. Similarly,
immunity is waived as to suits challenging the governmental entity’s interpretation
of a statute. Tex. Lottery Comm’n v. First State Bank of DeQueen, 325 S.W.3d 628,
634 (Tex. 2010). In such suits, the proper party is the governmental agency. See id.
at 634-35.

Lawsuits seeking “prospective injunctive relief against future agency orders
based on the statutes and regulations” are thus appropriately brought against the
governmental agency. Patel, 469 S.W.3d at 79. If the plaintiffs fail to plead a
viable claim, however, the governmental defendants remain immune from suit. Id.
at 77; Andrade v. NAACP of Austin, 345 S.W.3d 1, 11 (Tex. 2011); Spence v. State,
No. 03-17-00685-CV, 2019 WL 1868841, at *4 (Tex. App.—Austin Apr. 26,
2019, pet. denied) (mem. op.). Couching requested relief in terms of declaratory
relief does not alter the underlying nature of the suit. Spence, 2019 WL 1868841, at
*4.

Viable Claim. Applying these principles, we must determine whether the
doctors pleaded a viable claim challenging the constitutionality of a statute or
challenging governmental interpretation of any statute or ordinance, and we look to
9
the underlying nature of the claims to make this determination. See id.; see also
Scott-Nixon v. Tex. Higher Educ. Coordinating Bd., No. 03-10-00377-CV, 2012
WL 1582270, at *4 (Tex. App.—Austin May 4, 2012, no pet.) (mem. op.). In so
doing, we must examine the alleged facts. See Chisholm Trail SUD Stakeholders
Grp. v. Chisholm Trail Special Util. Dist., No. 03-16-00214-CV, 2017 WL
2062258, at *6 (Tex. App.—Austin May 11, 2017, pet. denied) (mem. op.).

The doctors argue on appeal that the “requirements of the Texas Workers’
Compensation Act violate” their constitutional rights to property and liberty. See
U.S. Const. amend. V (“No person shall be . . . deprived of life, liberty, or
property, without due process of law.”); Tex. Const. art. I, § 19 (“No citizen of this
State shall be deprived of life, liberty, property, privileges or immunities, or in any
manner disfranchised, except by the due course of the law of the land.”). The
doctors contend they have a constitutional right “to be able to practice health care
including treating injured workers in Texas when properly licensed by their
respective boards without interference from the [Division].” See Greene v.
McElroy, 360 U.S. 474, 492 (1959) (“[T]he right to hold specific private
employment and to follow a chosen profession free from unreasonable
governmental interference comes within the ‘liberty’ and ‘property’ concepts of
the Fifth Amendment.”); see also Patel, 469 S.W.3d at 74 (acknowledging
constitutional right under Texas Constitution article I, section 19 to exercise one’s
occupation “free from unreasonable governmental interference”).6

6
As Justice Willett noted,
The U.S. Supreme Court has repeatedly declared that the right to pursue a lawful
calling “free from unreasonable governmental interference” is guaranteed under
the federal Constitution, and is “objectively, deeply rooted in this Nation’s history
and tradition.” A pro-liberty presumption is also hardwired into the Texas
Constitution, which declares no citizen shall be “deprived of life, liberty,
property, [or] privileges or immunities”—phrasing that indicates citizens already
10
 The doctors allege in their live petition, “This suit . . . raises critical statutory
rights of health care providers in Texas, including statutory interpretation, statutory
conflicts, jurisdictional questions, and constitutional challenges.” They allege that
the Commissioner, the Division, and its “named officials and employees . . .
exceeded their statutory authority by improperly, unlawfully, and impermissibly
attempting to deny and continuing to enforce the denial and restriction of the
statutory rights of [the doctors] under the Texas Workers’ Compensation Act.”
They also allege, “The government and its official and its employees, the
Defendants, are unreasonably interfering with the [doctors’] statutory and
Constitutional rights to practice their professions and right to engage in business
and property” and “the Defendants’ actions have been and continue to be made
through unlawful procedure and error of law and in violation of the Constitution.”
The doctors seek prospective injunctive relief (1) “to prohibit the application, use,
and enforcement of the improper denial of the” doctors to the approved doctor list,
(2) to abate “any further administrative proceedings before SOAH and the
[Division],” and (3) to remove the doctor’s names from the Division’s website “as
being disciplined and being denied to the [approved doctor list] until the legal
issues in this lawsuit are resolved.”

As the doctors point out, their claims are akin to claims brought by the
plaintiffs in Patel. The State had begun regulating eyebrow threading, and the
plaintiffs contended that cosmetology statutes and associated administrative rules
were unreasonable as applied to eyebrow threading and violated their
constitutional right “to earn an honest living in the occupation of one’s choice free

possess these freedoms, and government cannot take them “except by the due
course of the law of the land.”
Patel, 469 S.W.3d at 93 (Willett, J., concurring) (citing Washington v. Glucksberg, 521 U.S. 702,
703 (1997), and Greene, 360 U.S. at 492).

11
from unreasonable governmental interference.” Patel, 469 S.W.3d at 74. The
plaintiffs sought declaratory judgment that the statutes and regulations, as applied
to them, violated the privileges and immunities and due course guarantees of the
Texas Constitution. Id. They also sought a permanent injunction barring the State
from enforcing the cosmetology scheme against them. Id. The supreme court
reiterated the longstanding rule that sovereign immunity is “inapplicable in a suit
against a governmental entity that challenges the constitutionality of a statute and
seeks only equitable relief.” Id. at 76. In such suits, the relevant governmental
entities must “be made parties.” Id. Because the threaders challenged the validity
of statutes and regulations, the Texas Department of Licensing and Regulation and
the Texas Commission of Licensing and Regulation, as the governmental entities
“charged with overseeing individuals and businesses that offer cosmetology
services,” were not immune from the lawsuit. Id. at 74, 77.

Construing the pleadings liberally, see Miranda, 133 S.W.3d at 226, we
conclude that in alleging the Act allows the Division to “unreasonably interfer[e]”
with their rights “to practice their professions,” rights “to engage in business,” and
rights to property, the doctors have alleged a viable claim that the Act violates the
United States and Texas Constitutions. See Patel, 469 S.W.3d at 77 (holding
claims that are properly pleaded are sufficiently viable to survive plea to
jurisdiction). Our sister court has recognized the Act is a “comprehensive statutory
framework” reflecting “painstaking Legislative economic and policy judgments as
to the appropriate means of balancing the often-competing interests of participants
to achieve a viable compensation system within constitutional limitations.” Vista
Med. Ctr. Hosp. v. Tex. Mut. Ins. Co., 416 S.W.3d 11, 39 (Tex. App.—Austin
2013, no pet.). The legislature vested the Division with the power and authority to
promulgate rules necessary to implement and enforce the Act. Lee v. Tex. Workers’

12
Comp. Comm’n, 272 S.W.3d 806, 813 (Tex. App.—Austin 2008, no pet.) (citing
Tex. Labor Code § 402.061).

Under the Act, the Division is authorized to develop and adopt requirements
for admission to the approved doctor list. Id. at 814 (citing Tex. Labor Code
§ 408.023(a)). Compliance with those requirements makes a doctor eligible to be
included on the list. Id. Only doctors approved by the Division can treat injured
patients and receive payments under the workers’ compensation system. Id. at 809
(citing Tex. Labor Code § 408.023), 814. Thus, the Division determines the basis
on which a doctor may be admitted to the approved doctor list. Id. at 814. Because
the Division is the governmental entity “charged with overseeing” which doctors
are added to or removed from the approved doctor list, the Division is not immune
from the doctors’ challenges to the constitutionality of the Act. See Patel, 469
S.W.3d at 74, 77. The Division is the proper party to defend against these claims.
See id.

Standing. The Division contends that the doctors lack standing to bring their
constitutional claims because they “have not been asked to pay the assessed
penalties or to provide a security bond” and thus have shown no harm. The
standing doctrine identifies suits appropriate for judicial resolution. Id. at 77.
Standing requires a real controversy between the parties that will be determined by
the judicial declaration sought. Id. “[T]o challenge a statute, a plaintiff must [both]
suffer some actual or threatened restriction under the statute” and “contend that the
statute unconstitutionally restricts the plaintiff’s rights.” Id. Here, the doctors have
suffered an actual restriction under the Act because the Division removed them
from the approved doctor list under the statute and initiated regulatory proceedings
against them. See id. at 78. Moreover, the doctors contend that the statute
unconstitutionally restricts their rights to practice medicine. Accordingly, the

13
doctors have standing to bring their constitutional claims.7 See id.

Ripeness. The Division also contends that the doctors’ claims are not ripe
because disciplinary actions against Patino and Craighead were still pending when
the lawsuit was filed. Under the ripeness doctrine, courts “consider whether, at the
time a lawsuit is filed, the facts are sufficiently developed so that an injury has
occurred or is likely to occur, rather than being contingent or remote.” Id. Thus, we
look to whether a case involves uncertain or contingent future events that may not
occur as anticipated or may not occur at all. Id. Here, the threat of harm is more
than conjectural, hypothetical, or remote because the doctors have been removed
from the approved doctor list, have been disciplined for treating patients in the
workers’ compensation system, and have incurred penalties related to their
treatment of such patients. At the time of filing their lawsuit, the doctors were
subject to a real threat of additional proceedings that could result in more penalties
and sanctions. The claims are ripe. See id.

Redundant Remedies. The Division also argues that the doctors’
constitutional challenges are barred under the redundant remedies doctrine because
the doctors could have obtained relief through a timely filed suit for judicial review
of the SOAH orders. Under that doctrine, claims seeking a declaratory judgment
are barred when the same claim could be brought through different channels. Id. at
79. But the available remedies on appeal from administrative findings are limited
to reversal of the particular orders at issue. Id. The doctors seek more—they seek
prospective injunctive relief against future agency orders and actions based on the
statute. Accordingly, the redundant remedies doctrine does not apply. See id.
7
The Division argues the doctors lack standing to challenge the constitutionality of the
Workers’ Compensation Act under the Texas open courts doctrine. See Tex. Const. art. I, § 13
(“All courts shall be open.”). Because we hold that the doctors have standing to challenge the
Act under the Fifth Amendment of the United States Constitution and article I, section 19 of the
Texas Constitution, we need not address standing under the open courts doctrine.

14
 Proper Parties. The doctors contend that the Commissioner and his
predecessor, the SOAH and named administrative law judges, and the attorney
general are also proper parties to the constitutional challenges and challenges to the
Division’s interpretation of the Act because these appellees are all interested
parties. See Tex. Civ. Prac. & Rem. Code § 37.006(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.”). We disagree.

In Patel, the supreme court held that the governmental entities “charged with
overseeing individuals and businesses that offer cosmetology services” were the
proper parties against whom to bring a constitutional challenge or challenge to the
validity of a statute. 469 S.W.3d at 74, 77. As discussed above, we have concluded
that the Division, as the governmental entity charged with managing the approved
doctor list, is the proper party to the doctors’ constitutional and statutory
challenges. The doctors have not alleged that the other parties were responsible for
overseeing the approved doctor list, so the doctors have not pleaded a viable claim
against the other parties challenging the constitutionality or interpretation of the
Act.8 See, e.g., Andrade, 345 S.W.3d at 11 (“[T]he [government official] retains
immunity from suit unless the [plaintiffs] have pleaded a viable claim.”); Spence,
2019 WL 1868841, at *4 (“If the plaintiff fails to plead a viable claim, . . . the
governmental defendant remains immune from suit.”).

8
Accordingly, we agree with the SOAH and administrative law judges that they are not
proper parties to the doctors’ declaratory judgment claims. See Tex. Educ. Agency v. Leeper, 893
S.W.2d 432, 446 (Tex. 1994) (“Governmental entities joined as parties may be bound by a
court’s declaration on their ordinances or statutes.” (Emphasis added)). We also note that the
attorney general “must . . . be served with a copy of the proceeding and is entitled to be heard . . .
[i]n any proceeding [in which a] statute . . . is alleged to be unconstitutional.” Tex. Civ. Prac. &
Rem. Code § 37.006(b). But the statute does not require the attorney general to be named as a
party in such proceedings.

15
 IV. Ultra Vires Claims

The doctors also contend that their ultra vires claims are not barred by
sovereign immunity. The Commissioner argues that he should not have been
joined as a defendant because there is no allegation that he committed specific ultra
vires acts.

A suit asserting that a government officer acted without legal authority or
seeking to compel a governmental official to comply with statutory or
constitutional provisions is an ultra vires suit and is not subject to pleas of
governmental immunity. City of El Paso v. Heinrich, 284 S.W.3d 366, 372 (Tex.
2009); Lone Star Coll. Sys. v. Immigration Reform Coal. of Texas (IRCOT), 418
S.W.3d 263, 272 (Tex. App.—Houston [14th Dist.] 2013, pet. denied). Because
these suits are not considered to be suits against the state, they must be brought
against the allegedly responsible state actors in their official capacities, not against
the state. Heinrich, 284 S.W.3d at 373. For the ultra vires exception to apply, the
suit must allege and ultimately prove that the state official acted without legal
authority or failed to perform a purely ministerial act, rather than attack the
official’s exercise of discretion. Id. at 372. A government official acts “without
legal authority,” and thus ultra vires, if he exceeds the bounds of his granted
authority or acts in conflict with the law itself. Hall v. McRaven, 508 S.W.3d 232,
238 (Tex. 2017).

The Commissioner contends that no specific ultra vires actions by him have
been pleaded. We disagree. The doctors allege that the Commissioner acted
beyond his “statutory authority and in violation of the Texas Workers’
Compensation Act” in (1) removing the doctors from the approved doctor list
without following the protocol set forth in the statute, (2) prohibiting the doctors
from owning, being employed by, and investing in a healthcare facility in Texas,

16
and (3) wrongfully listing the doctors on the Division’s website as being
disciplined. As pleaded, the Commissioner is the “state agency head,” and he
purportedly violated the Act in taking the alleged actions described above.
Although the doctors allege that the Division and others also committed these acts,
the doctors’ allegations implicate the Commissioner as the allegedly responsible
government actor in his official capacity.9 See, e.g., Lone Star Coll. Sys., 418
S.W.3d at 272 (holding school chancellor in his official capacity was responsible
government actor for ultra vires claims as chief executive officer of school system,
interpreter of board policy, and employee who reported directly to board). We
conclude that the doctors have alleged viable ultra vires claims implicating the
Commissioner.10 See id.

Conclusion

We conclude that the trial court did not err in dismissing the doctors’
challenges to the SOAH’s final agency orders for lack of jurisdiction. The trial
court, however, erred in dismissing the doctors’ (1) claims against the Division
challenging the constitutionality of the Workers’ Compensation Act and the
Division’s interpretation of the Act, and (2) ultra vires claims against the
Commissioner. We reverse the trial court’s order dismissing these claims against
9
The doctors also sued Dr. Donald Patrick. The doctors pleaded that Patrick is an
employee of the Division but did not allege that Patrick was responsible for any ultra vires
actions. Accordingly, the trial court did not err in dismissing the doctors’ claims against Patrick.
See Patel, 469 S.W.3d at 76 (noting for ultra vires exception to apply, claimant must allege a
state official acted without legal authority or failed to perform a purely ministerial act).
Similarly, the trial court did not err in dismissing the doctors’ claims against the administrative
law judges because the doctors did not allege the judges were responsible for any ultra vires
actions. See id.
10
We have noted that there is no “legal or policy reason” preventing a party from raising
statutory challenges and ultra vires claims both in the same lawsuit. See Lone Star Coll. Sys., 418
S.W.3d at 273. Accordingly, the doctors could bring their constitutional and statutory
interpretation challenges against the Division while at the same time bringing their ultra vires
claims against the Commissioner. See id.

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the Division and the Commissioner and affirm the trial court’s order dismissing all
other claims against all other parties.

/s/ Frances Bourliot
Justice

Panel consists of Justices Christopher, Jewell, and Bourliot.

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