1 

NO. 03-14-00012-CV 

IN THE THIRD COURT OF APPEALS 

AUSTIN, TEXAS 

____________________________________________________________ 

STATE OFFICE OF RISK MANAGEMENT 

Appellant 

v. 

KATINA A. EDWARDS 

Appellee 

On Appeal from the 

53rd Judicial District Court of Travis County, Texas 

APPELLANT’S REPLY BRIEF 

 

 J. Red Tripp 

 State Bar No. 00790257 

 Assistant General Counsel 

 State Office of Risk Management 

 P.O. Box 13777 

 Austin, Texas 78711-3777 

 (512) 936-1516 

 Fax (512) 370-9189 

 Red.Tripp@sorm.state.tx.us

 Counsel for Appellant 

ORAL ARGUMENT REQUESTED 

ACCEPTED

03-14-00012-CV

3703647

THIRD COURT OF APPEALS

AUSTIN, TEXAS

1/8/2015 4:20:48 PM

JEFFREY D. KYLE

CLERK

 FILED IN 3rd COURT OF APPEALS AUSTIN, TEXAS 1/8/2015 4:20:48 PM JEFFREY D. KYLE Clerk
2 

TABLE OF CONTENTS

 Page 

 

Table of Contents...........................................................................2 

 

Index of Authorities.........................................................................3 

Reply Argument.............................................................................5 

 

I. The Texas Department of Insurance, Division of Workers’ 

Compensation (DWC), deprived SORM of its due process 

right to a fair hearing.............................................................5 

II. Appellant raised a Substantial Evidence Due Process Issue 

in its Original Petition. Appellant withdrew only its challenge 

to the issues of compensability and indemnity in its Amended 

Petition. Accordingly, venue is mandatory in Travis County, 

Texas................................................................................5 

a. Substantial Evidence Issue was Raised in the Original 

Petition..........................................................................5 

b. Venue Is Mandatory in Travis County..................................6 

c. De Novo Review Does Not Cure the Due Process 

Violation........................................................................8 

III. Appellant Is Not Required By Any Rule or Statute to File a 

Declaratory Judgment Action Against DWC To Resolve The 

Issues In This Case............................................................9 

 

Conclusion and Prayer..................................................................11 

Certificate of Service.....................................................................12 

 

Certificate of Compliance...............................................................13 

 

 
3 

INDEX OF AUTHORITIES

CASES 

Ross v. Kornrumpf, 46 Texas 390, 393 (1885) ....................................6 

Morales v. Liberty Mutual Insurance Co., 

 241 S.W.3d 514, 517 (Tex. 2007)..............................................7 

STATUTES 

Tex. Gov’t Code Subchapter G, §2001.174(2).............................7, 8, 11 

Tex. Gov’t Code Subchapter G, §2001.175.......................................10 

Tex. Gov’t Code Subchapter G, §2001.176.........................................7 

Tex. Labor Code §410.252(b)(1).......................................................7 

Tex. Labor Code §410.253.............................................................10 

Tex. Labor Code §410.255...............................................5, 7, 8, 9, 10 

Tex. Labor Code §410.258(b).........................................................10 

Tex. Labor Code §410.301.........................................................8, 10 

 
4 

NO. 03-14-00012-CV 

IN THE THIRD COURT OF APPEALS 

AUSTIN, TEXAS 

____________________________________________________________ 

STATE OFFICE OF RISK MANAGEMENT 

Appellant 

v. 

KATINA A. EDWARDS 

Appellee 

On Appeal from the 

53rd Judicial District Court of Travis County, Texas 

APPELLANT’S REPLY BRIEF 

TO THE HONORABLE JUSTICES OF THE TEXAS THIRD COURT OF 

APPEALS: 

 COMES NOW, Appellant, State Office of Risk Management and files 

this its Reply Brief to Appellee, Katina A. Edwards’ Response brief, and 

would show as follows: 
5 

REPLY ARGUMENT 

I. THE TEXAS DEPARTMENT OF INSURANCE, DIVISION OF 

WORKERS’ COMPENSATION (DWC), DEPRIVED APPELLANT 

OF ITS DUE PROCESS RIGHT TO A FAIR HEARING 

 DWC deprived Appellant of its due process right to a fair hearing by 

failing to require Appellee to provide evidence-based expert medical 

evidence to prove her claim of occupational disease, thereby failing to 

properly place the burden of proof on Appellee. Appellee has not provided 

any argument contrary to Appellant’s position. It must, therefore, be 

presumed that Appellee concurs with Appellant’s position as to this Issue. 

To the extent that a reply is necessary, Appellant incorporates, in full, its 

argument as set forth in its original brief on the merits. 

II. APPELLANT RAISED A SUBSTANTIAL EVIDENCE DUE 

PROCESS ISSUE IN ITS ORIGINAL PETITION. APPELLANT 

WITHDREW ONLY ITS CHALLENGE TO THE ISSUES OF 

COMPENSABILITY AND INDEMITY IN ITS AMENDED PETITION. 

ACCORDINGLY, VENUE IS MANDATORY IN TRAVIS COUNTY, 

TEXAS

a. Substantial Evidence Issue was Raised in the Original Petition 

 

 Appellee acknowledges that Appellant timely filed its original petition, 

but argues that Appellant’s Amended Petition untimely sought judicial 

review under subchapter F and Tex. Labor Code §410.255. However, 

Appellant’s Amended Petition, filed on January 28, 2010, properly removed 
6 

only the issues of compensability and disability from its appeal without 

adding any new cause of action.1

 To the extent Appellee asserts that it 

was improper for Appellant to amend its original petition to more specifically 

describe the relief sought on its substantial evidence cause of action, this 

argument has been soundly rejected by the Texas Supreme Court since 

the 1800s. See Ross v. Kornrumpf, 46 Texas 390, 393 (1885) (A new 

cause of action is not set up by specifying more particularly the relief 

sought). 

b. Venue Is Mandatory In Travis County 

 Appellee acknowledges that Appellant is not seeking a reversal of the 

DWC’s decision regarding compensability and disability;2

 rather, Appellant 

is asking this court to remand this matter to DWC for a new hearing in order 

that DWC make a determination in compliance with its statutory provisions 

and authority that is properly supported by the substantial evidence. This 

dispute is not over whether or not Appellee is entitled to benefits - this 

dispute is over whether or not the administrative agency followed the law in 

 

1

 In its Original Petition to the Travis County District Court, Appellant stated that 

“Defendant was not held to [her] burden of proof. Plaintiff is, therefore, aggrieved by the 

improper application of the burden of proof...” CR at 5-6, and requested “such other and 

further relief at law or in equity to which the Court finds it may be justly entitled.” CR at 

7. 

2

 Appellee’s Response issue acknowledges “...the Insurance Carrier’s legal 

insufficiency argument of the evidence at the administrative level does not matter as to 

compensability and disability issues...” Response Brief at viii. 
7 

coming to its decision. This Court has the authority to remand specifically 

for these reasons, but only under Tex. Gov’t Code §2001.174(2), after 

which the DWC has the authority to either issue a new decision based 

upon the existing record or reopen the record for new evidence. Thus, a 

decision by this court to remand this matter to the DWC is not a de facto

reversal, nor is such a reversal sought by Appellant from the court. 

 Appellee’s proposition that Tex. Labor Code §410.252(b)(1) 

statutorily mandates venue in Fort Bend County, the county of Appellee’s 

residence, regardless of whether the proper standard of review is de novo

or substantial evidence is without merit. While Appellee contends that 

venue is mandatory in her county of residence, Tex. Labor Code §410.255 

provides otherwise. If a dispute does not concern compensability, income 

or death benefits, the matter falls under Tex. Labor Code §410.255, which 

instructs parties that judicial review is to be conducted under Subchapter G, 

Chapter 2001, Government Code. Section 2001.176 of the Government 

Code specifically places mandatory venue in Travis County. See Morales 

v. Liberty Mutual Insurance Co., 241 S.W.3d 514, 517 (Tex. 2007). 

Appellee’s contention that “if courts allow parties to seek review in 

Travis County on alleged legal errors, then almost every administrative 
8 

hearing could be alleged to have jurisdictional grounds in Travis County,”3

is without merit. Appellant is requesting a remand back to DWC under Tex. 

Gov’t Code §2001.174(2), because DWC did not properly apply the 

established law and procedure in this claim. If an insurance carrier was to 

file its petition in Travis County and the court determined that no legal or 

procedural error occurred, then the petition would fail and the injured 

worker would maintain their right to a jury trial in the county of their 

residence with the burden on the insurance carrier on any remaining issues 

concerning compensability, income or death benefits pursuant to Tex. 

Labor Code §410.301. An insurance carrier’s appeal under Tex. Labor 

Code §410.255 would fail if the DWC did not misapply the law or 

procedure. Appellee’s contention that by granting Appellant’s request relief 

almost every case could then be filed in Travis County would be true only if 

“in almost every administrative hearing” the DWC misapplied the law or 

committed another egregious legal or procedural error. Appellee has 

offered no evidence that this is the case. 

c. De Novo Review Does Not Cure the Due Process Violation 

 Issues of due process, burden of proof, and evidence are not issues 

of compensability, eligibility to or the amount of income or death benefits, 

 

3

 Appellee’s Response Brief at 21. 
9 

under Tex. Labor Code §410.255. Under Appellee’s construction of the 

law, Appellant’s only remedy would be to try the issues of compensability 

and disability before a jury with the burden of proof being placed upon the 

Appellant, thereby allowing the a party to continue to benefit from the 

DWC’s erroneous placement of the burden of proof at the administrative 

level. Appellant would then have to prove that something did not happen, 

which is antithetical to statute and logic. The real issue of procedural error 

would never be addressed, nor corrected, contrary to Appellee’s contention 

that “modified de novo review protects parties’ rights to have errors 

corrected in court.”4

 Accordingly, contrary to Appellee’s contentions, de 

novo review does not cure the due process violation. 

III. APPELLANT IS NOT REQUIRED BY ANY RULE OR STATUTE TO 

FILE A DECLARATORY JUDGMENT ACTION AGAINST DWC TO 

RESOLVE THE ISSUES IN THIS CASE 

 Appellant has never pled a declaratory judgment action in this 

matter.5

 While Appellee argues that Appellant could have brought a 

Uniform Declaratory Judgment Act claim, Appellee offers no support for the 

contention that this was required under law. 

 

4

 Appellee’s Response Brief at 20. 

5

 While Appellee appears to contend that a UDJA is the only vehicle under which 

SORM can obtain relief, she never explains what justiciable controversy or legal 

misinterpretation exists and how the Court’s ruling between DWC and SORM in this 

case would resolve such controversy. 
10 

Appellee does not explain how DWC is an indispensable party to this 

litigation. There is no statutory requirement that DWC be made a party 

under Tex. Labor Code §401.255 or §401.301. A copy of plaintiff’s original 

petition was filed with DWC simultaneously with the filing of the petition with 

the court, pursuant to Tex. Labor Code §410.253 and in compliance with 

Tex. Gov’t Code §2001.175. The statute provides that “The division may

intervene in a [judicial review proceeding] not later than the 30th day after 

the date of receipt of the proposed judgment or settlement.” Tex. Labor 

Code §410.258(b) (emphasis added). DWC was also sent a copy of the 

Final Judgment. On August 13, 2013, SORM mailed DWC its proposed 

judgment by certified mail, return receipt requested. The DWC admits in its 

Petition in Intervention that it received the proposed order on August 14, 

2013, and admits that it did not makes its request to intervene until more 

than 30 days had passed.6

 Though DWC did not timely intervene in this 

lawsuit and thus was not a party to the lawsuit, it has now filed an amicus

brief to this Court. 

Appellee’s contention that, should this Court remand this case back 

to DWC for proper application of the law, it would somehow “allow DWC to 

continuously misapply and misinterpret the law without being held 

 

6

 Texas Department of Insurance-Division of Workers’ Compensation’s Petition in 

Intervention, Page 2, Section III. 
11 

accountable...” is without merit, or explanation, and it is precisely the 

consequence sought to be avoided in this matter. Appellee does not 

indicate what relief would be achieved by Appellant under a declaratory 

judgment action that would not be accomplished by a remand to DWC for 

rehearing and a correction of the due process violation. 

CONCLUSION AND PRAYER 

 WHEREFORE, Appellant timely requested substantial evidence 

review, properly in Travis County and wherefore Appellant has shown that 

its due process rights to a fair hearing were violated, Appellant requests 

that this court grant its request to reverse the administrative order finding 

that the Claimant sustained a compensable injury in the form of 

hypersensitivity pneumonitis on June 17, 2008; and that she had disability 

resulting from the compensable injury sustained on June 17, 2008, from 

August 22, 2008, through May 12, 2009; specifically and only for the 

purpose of remanding the case to the Texas Department of Insurance, 

Division of Workers’ Compensation, for a proper application of the burden 

of proof and evidence as permitted under Tex. Gov’t Code §2001.174(2). 
12 

Respectfully submitted, 

 //s// J. Red Tripp 

 J. Red Tripp 

 State Bar No. 00790257 

 Associate General Counsel 

 State Office of Risk Management 

 P.O. Box 13777 

 Austin, Texas 78711-3777 

 (512) 936-1516 

 (512) 370-9189 fax 

 Red.Tripp@sorm.state.tx.us

 Counsel for Appellant 

CERTIFICATE OF SERVICE

 I hereby certify that a true and correct copy of Appellant’s Reply Brief 

was served on Appellee via electronic service pursuant to the TRAP on the 

8th day of January, 2015. 

Bradley Dean McClellan 

State Bar No. 13395980 

Of Counsel, Law Offices of Richard Pena 

1701 Director’s Blvd., Suite 110 

Austin, Texas 78744 

(512) 327-6884 office 

(512) 694-8843 cell 

(512) 327-8354 fax 

brad.mcclellan@yahoo.com 

 //s// J. Red Tripp 

 J. Red Tripp 
13 

CERTIFICATE OF COMPLIANCE

 I hereby certify that per TRAP 9.4(i)(3) the Appellant’s Reply Brief 

contains 2,051 words pursuant to the word count on the computer program 

used to prepare the document. 

 //s// J. Red Tripp 

 J. Red Tripp