TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-22-00241-CV

Texas Political Subdivisions Joint Self-Insurance Fund, Appellant

v.

Texas Department of Insurance–Division of Workers’ Compensation and Commissioner 

Cassie Brown in her Official Capacity, Appellees 

FROM THE 455TH DISTRICT COURT OF TRAVIS COUNTY

NO. D-1-GN-21-004227, THE HONORABLE MADELEINE CONNOR, JUDGE PRESIDING

O P I N I O N

 Appellant Texas Political Subdivisions Joint Self-Insurance Fund (TPS Fund) 

challenges the trial court’s order denying its combined plea to the jurisdiction and 

summary-judgment motion. In the underlying suit, the TPS Fund seeks judicial review of two 

Commissioner’s Orders issued by appellees Texas Department of Insurance–Division of Workers’ 

Compensation and Commissioner Cassie Brown in her official capacity (collectively, the 

Division). In the orders, the Division assessed administrative penalties totaling $132,500 against 

the TPS Fund for violations of the Texas Labor Code involving the nonpayment or late payment 

of workers’ compensation benefits. In the TPS Fund’s plea and motion, it asserted that it retains 

governmental immunity from liability for administrative penalties assessed against it. For the 

reasons explained below, we affirm the trial court’s order.
2

BACKGROUND

Statutory Framework

The Texas Workers’ Compensation Act is a comprehensive legislative framework 

that creates a statewide no-fault insurance system for workers injured or killed in the course and 

scope of their employment. See generally Tex. Lab. Code §§ 401.001-419.007; see also Texas W. 

Oaks Hosp., LP v. Williams, 371 S.W.3d 171, 186 (Tex. 2012) (explaining that when employer 

elects to subscribe to workers’ compensation insurance, employer’s insurance carrier is liable for 

compensation of employee’s injury if employee is subject to Workers’ Compensation Act and 

employee’s injury arises out of course and scope of employment). The Texas Department of 

Insurance is the state agency designated to oversee the workers’ compensation system, and within 

the Department, the Division was established to administer and operate the workers’ compensation 

system. See Tex. Lab. Code § 402.001.

The TPS Fund is a joint fund formed under the Interlocal Cooperation Act by

certain self-insured governmental entities for the purpose of providing workers’ compensation 

benefits for its participants’ employees. See generally Tex. Gov’t Code Ch. 791 (governing 

Interlocal Cooperation Contracts); see also Tex. Lab. Code § 406.003 (establishing that employers 

may obtain workers’ compensation insurance coverage through licensed insurance company or 

through self-insurance as provided by Act). The TPS Fund describes itself as a political 

subdivision of the State that operates as a risk-management pool and workers’ compensation claim 

administrator for its members, which are public-school districts, counties, cities, and other units of 

local government.
3

The Commissioner’s Orders

In November 2019, the Division’s staff initiated two separate cases before an 

administrative-law judge (ALJ) at the State Office of Administrative Hearings (SOAH), seeking 

to sanction the TPS Fund. In one case, the Division sought sanctions in the amount of $160,000 

based on allegations that a 2018 audit identified multiple instances in which the TPS Fund failed 

to accurately pay death benefits and failed to timely or accurately report claim data. The ALJ 

ultimately found that the TPS Fund underpaid the death-benefit amounts for three claims by a total 

of $384,132.

1

 In the other case, the Division sought sanctions in the amount of $7,500 based on 

allegations that the TPS Fund failed to timely pay benefits to an injured employee that should have 

begun by October 30, 2017. The ALJ ultimately found that the TPS Fund paid the injured 

employee the principal amount 112 days late and paid accrued interest 526 days late.

In each of the proceedings, the TPS Fund filed a plea to the jurisdiction, asserting 

that, at the time of the TPS Fund’s alleged violations, the TPS Fund enjoyed governmental 

immunity from suit and liability for administrative penalties and sanctions, based on a recent 

amendment to Texas Labor Code Section 504.053(e). See Act of May 26, 2019, 86th Leg., R.S.

ch. 701, § 6, sec. 504.053, 2019 Tex. Gen. Laws 2005, 2006 (SB 2551 or Act) (codified at Tex. 

Labor Code § 504.053(e)). In the proposals for decision (PFDs) in each case, the ALJ explained 

that she had denied the TPS Fund’s pleas to the jurisdiction and her reasoning for those denials. 

The ALJ determined that the enforcement actions had been brought by Division staff under

Chapters 408, 409, and 415 of the Labor Code, not Chapter 504, and that “[t]he Texas Workers’ 

1

 By the time the ALJ issued the proposal for decision in the SOAH proceeding, the TPS 

Fund had paid all outstanding amounts, including interest, to the beneficiaries for the underpaid 

death-benefit amounts.
4

Compensation Act contains a clear and unambiguous waiver of sovereign immunity for 

governmental entities that self-insure, either individually or collectively.” Based on the evidence 

of violations and the applicable law, the ALJ recommended that the TPS Fund be ordered to pay 

$125,000 as an administrative penalty in the death-benefits case and $7,500 as an administrative 

penalty in the injured-employee case.

The Commissioner subsequently issued two Orders incorporating the ALJ’s PFDs 

by reference. The Orders also incorporated and adopted by reference the findings of fact and 

conclusions of law listed in the PFDs. Accordingly, the Division assessed administrative penalties 

of $7,500 and $125,000 against the TPS Fund.

The TPS Fund subsequently sought judicial review of the Commissioner’s Orders 

in Travis County District Court. The TPS Fund filed a combined plea to the jurisdiction and 

summary-judgment motion, again asserting that its governmental immunity has not been waived 

for the assessment of administrative penalties by the Division and seeking attorneys’ fees and costs 

under Texas Civil Practice and Remedies Code Sections 105.005 and 37.009.2

 See Tex. Civ. Prac. 

& Rem. Code § 37.009 (allowing court to “award costs and reasonable and necessary attorney’s 

fees as are equitable and just” in proceeding brought under Uniform Declaratory Judgments Act); 

id. § 105.005 (allowing court to award prevailing party “reasonable attorney’s fees and costs 

incurred in defending against a frivolous regulatory action during the contested case and judicial 

review of the decision in the contested case if . . . there is a final determination that the regulatory 

action is frivolous”).

2

 The TPS Fund also sought a declaratory judgment that its governmental immunity has 

not been waived for the assessment of administrative penalties by the Division and that the TPS 

Fund’s substantial rights had been prejudiced by the Orders. 
5

After a hearing, the trial court denied the plea and motion. This interlocutory appeal 

followed. See id. § 51.014(a)(5), (8).

ANALYSIS

In two issues, the TPS Fund asserts that the trial court erred by denying its plea to 

the jurisdiction and request for attorneys’ fees. We first address the jurisdictional issue.

Sovereign immunity protects the State of Texas and its agencies from suit and 

liability, while governmental immunity provides similar protections to the State’s political 

subdivisions. Chambers-Liberty Cntys. Navigation Dist. v. State, 575 S.W.3d 339, 344 (Tex. 

2019). The Division does not dispute that the TPS Fund is a political subdivision of the State for 

immunity purposes. Ben Bolt-Palito Blanco Consol. Indep. Sch. Dist. v. Texas Pol. Subdivisions

Prop./Cas. Joint Self-Ins. Fund, 212 S.W.3d320, 326 (Tex. 2006) (concluding in property-loss 

insurance case “that the Fund’s ‘nature, purposes and powers’ demonstrate legislative intent that it 

exist as a distinct governmental entity entitled to assert immunity in its own right for the 

performance of a governmental function”). Governmental immunity therefore protects the TPS 

Fund from suit and liability unless the Legislature has waived the TPS Fund’s immunity. See 

Chambers-Liberty Cntys. Navigation Dist., 575 S.W.3d at 344.

The Legislature may waive immunity by statute. Id. (citing Texas Nat. Res. 

Conservation Comm’n v. IT-Davy, 74 S.W.3d 849, 853-54 (Tex. 2002)). If the Legislature elects 

to waive immunity by statute, it must do so by clear and unambiguous language. Tex. Gov’t Code 

§ 311.034; Chambers-Liberty Cntys. Navigation Dist., 575 S.W.3d at 344.

Governmental immunity from suit defeats a trial court’s jurisdiction. Ben-Bolt 

Palito Blanco CISD, 212 S.W.3d at 323. Whether a trial court has jurisdiction is a question of law 
6

that we review de novo. Id. Therefore, we review de novo the issue of the trial court’s ruling on 

the TPS Fund’s plea to the jurisdiction and summary-judgment motion raising the issue of the TPS 

Fund’s immunity from the Division’s imposition of administrative penalties. See ChambersLiberty Cntys. Navigation Dist., 575 S.W.3d at 345.

The TPS Fund focuses its argument on the Texas Legislature’s enactment of 

SB 2551 in 2019. SB 2551 added to Texas Labor Code Section 504.053(e) language expressly 

waiving political subdivisions’ governmental immunity “for sanctions, administrative penalties, 

and other remedies authorized by Chapter 415 [the section of the Workers’ Compensation Act 

governing administrative violations].” The parties do not contend that this language is ambiguous, 

and we agree that it is a clear and unambiguous waiver of political subdivisions’ governmental 

immunity for administrative penalties. The parties join issue on whether this unambiguous 

language represents a change in the existing law. The TPS Fund contends that the Legislature 

added this language to waive immunity for administrative penalties for violations occurring after 

June 10, 2019 (the effective date of SB 2551), while the Division contends that the addition of the 

waiver language was merely a codification or clarification of the existing law.

The construction of a statute is a question of law that we review de novo. Atmos 

Energy Corp. v. Cities of Allen, 353 S.W.3d 156, 160 (Tex. 2011). When construing a statute, our 

task is to give effect to the Legislature’s expressed intent. Id. Thus, to determine whether the 

added language constitutes a waiver of immunity only for violations occurring after June 10, 2019, 

or is a codification of existing law, we may consider the object sought to be obtained; the 

circumstances under which the statute was enacted; the legislative history; prior law, including 

common law; and the consequences of a particular construction. See Tex. Gov’t Code 

§ 311.023(1)-(5) (establishing nonexclusive list of matters courts may consider to aid “[i]n 
7

construing a statute, whether or not the statute is considered ambiguous on its face”); Atmos 

Energy, 353 S.W.3d at 160; Cities of Austin, Dallas, Ft. Worth & Hereford v. Southwestern Bell 

Tel. Co., 92 S.W.3d 434, 442 (Tex. 2002). In addition, we avoid “construing a statutory provision 

in isolation from the rest of the statute; we should consider the act as a whole, and not just single 

phrases, clauses, or sentences.” Cities of Austin, Dallas, 92 S.W.3d at 442.

Viewing SB 2551 as a whole demonstrates that the Act’s overarching purpose was 

to clarify the law and change the claim process governing first responders’ workers’ compensation 

claims for death or disability from cancer. SB 2551, titled “Liability, Payment, and Benefits for 

Certain Workers’ Compensation Claims,” amended the Government Code to specifically identify 

the types of cancer that firefighters or emergency medical technicians are rebuttably presumed to 

have developed from their job if they regularly responded to calls involving fires or firefighting or 

regularly responded to an event involving the documented release of radiation or a known or 

suspected carcinogen while the person was employed as a firefighter or emergency medical 

technician. See SB 2551, § 1 (codified at Tex. Gov’t Code § 607.055(b)) (replacing prior 

definition of work-related cancers with list of specific types), § 2 (codified at Tex. Gov’t Code 

§ 607.058(a)-(c)) (amending rebuttable-presumption standard). SB 2551 further added a provision 

allowing a political subdivision or a pool of political subdivisions that self-insures to establish an 

account for the payment of death benefits and lifetime-income benefits and promulgating 

guidelines for establishing such an account. See id., § 7 (codified at Tex. Lab. Code § 504.074).

The Act also changed the process for the workers’ compensation insurance carrier 

to investigate compensability in these presumptive cases, allowing the carrier more than the normal 

fifteen-day deadline to pay or dispute if certain conditions are met. Compare Tex. Lab. Code 

§ 409.021(a), with SB 2551, § 3 (adding Subsection (a-3) to Tex. Lab. Code § 409.021). SB 2551 
8

added language to the existing provision concerning a carrier’s refusal to pay benefits to specify 

that “[a]n insurance carrier has not committed an administrative violation under Section 409.021 

if the carrier has sent notice to the employee as required by Subsection (d) of this section or Section 

409.021(a-3).” SB 2551, § 4 (codified at Tex. Lab. Code § 409.022(d-1)). Moreover, SB 2551

added language to the existing provision governing the Division’s assessment of administrative 

penalties to enumerate specific considerations that the Commissioner shall consider when 

“determining whether to assess an administrative penalty involving a claim in which the insurance 

carrier provided notice under Section 409.021(a-3).” See id., § 5 (codified at Tex. Lab. Code 

§ 415.021(c-2)(1)-(3)). Finally, SB 2551 included the provision at issue here, amending the 

existing language in Texas Labor Code Section 504.053 as follows (amended language in 

boldface type):

(e) Nothing in this chapter waives sovereign immunity or creates a new cause 

of action, except that a political subdivision that self-insures either 

individually or collectively is liable for:

(1) sanctions, administrative penalties, and other remedies authorized 

under Chapter 415;

(2) attorney’s fees as provided by Section 408.221(c); and

(3) attorney’s fees as provided by Section 417.003.

Id. § 6 (codified at Tex. Lab. Code § 504.053(e)).

The Act stated that the Government Code sections identifying the types of cancer 

to which the rebuttable presumption applies and containing the amendments to the rebuttablepresumption standard applied only to claims filed after the Act’s effective date, and it further stated 

that Texas Labor Code Section 504.053(e)(1) and (2) applied only to administrative violations that 
9

occurred after the effective date of the Act. Id. §§ 8, 10. Furthermore, the Act specified that claims 

filed and administrative violations that occurred before the effective date are governed by prior 

applicable law. Id. Thus, the Act’s language specifying that claims filed and administrative 

violations that occurred before the effective date are governed by the law in effect on the date of 

the claim or violation supports our conclusion that immunity for administrative penalties was 

waived before SB 2551 went into effect—otherwise there would have been no need for the 

Legislature to specify that administrative violations before the date of the Act were governed by 

the law in effect before the Act. In other words, the Legislature directed that the Commission 

could not go back and seek administrative penalties under the new statutory scheme for carriers’ 

handling of cancer claims that were filed before the effective date of the Act, not that the 

Commission could for the first time seek penalties from self-insured political subdivisions.

In addition, SB 2551’s legislative history indicates that the Legislature intended that 

its amendment to Section 504.053 codify existing law, explaining that Section 6 of SB 2551:

(e) Makes a nonsubstantive change. Provides that nothing in this chapter (Workers’

Compensation Insurance Coverage For Employees of Political Subdivisions) 

waives sovereign immunity or creates a new cause of action, except that a political 

subdivision that self-insures either individually or collectively is liable for:

(1) sanctions, administrative penalties, and other remedies authorized under 

Chapter 415 (Administrative Violations);

(2) attorney’s fees as provided by Section 408.221(c) (relating to providing that an 

insurance carrier that seeks judicial review of a certain final decision of the 

appeals panel is liable for reasonable and necessary attorney’s fees incurred by 

the claimant as a result of the insurance carrier’s appeal if the claimant prevails 

on an issue on which judicial review is sought by the insurance carrier in 

accordance with the limitation of issues); and

(3) creates this subdivision from existing text and makes no further changes.
10

Texas Senate Research Center, Bill Analysis, Tex. S.B. 2551, 86th Leg., R.S. (2019) (emphasis 

added); see also Tex. Gov’t Code § 311.023(3) (allowing courts to consider legislative history 

when construing statutes); Ben Bolt Palito Blanco CISD, 212 S.W.3d at 327 (relying on legislative 

history when construing scope of Legislature’s unambiguous waiver of local governmental 

entities’ immunity from suit for enforcement of contracts and determining that Fund was not 

excluded from immunity waiver and thus it was subject to suit in insurance-coverage dispute with 

Fund participant).

Consequently, viewed in the context of the rest of the Act and the circumstances of 

its enactment, we conclude that the Legislature added the new language to Section 504.053(e) to 

codify existing law establishing that political subdivisions that self-insure—the carriers for many 

of the State’s first responders—are liable for sanctions, administrative penalties, and other Chapter 

415 remedies, as well as attorneys’ fees, and to clarify that they would be liable under the new 

process for cancer claims only for administrative violations that occurred after the effective date 

of the Act.

Construing the provision at issue as a codification of existing law is consistent with 

the relevant common law and with the structure of the Workers’ Compensation Act as a whole. 

The Legislature enacted SB 2551 in 2019. Almost two decades earlier, this Court determined that 

political subdivisions that self-insure under the Workers’ Compensation Act are subject to 

administrative penalties assessed by the Division. Texas Workers’Comp. Comm’n v. City of Eagle 

Pass/Tex. Mun. League Workers’ Comp. Joint Ins. Fund, 14 S.W.3d 801, 806 (Tex. App.—Austin 

2000, pet. denied).

In reaching this holding, we first considered whether political subdivisions enjoyed 

sovereign immunity from state regulatory authority and concluded that they do not. The Workers’ 
11

Compensation Commission (now the Division) argued in Eagle Pass that “because municipalities 

and other political subdivisions of the State exist under the authority of the State and are subject 

to the State’s regulatory authority, such entities do not enjoy sovereign immunity from state 

regulatory authority.” Id. at 803 (emphasis added). We agreed, reasoning that a political 

subdivision’s immunity is derived from the State’s immunity and so may act as a shield against 

actions brought by private parties but not against actions brought by the State exercising its 

regulatory authority over a political subdivision.

3

 Id. at 804.

Although we concluded that the workers’ compensation insurance fund in Eagle 

Pass did not have independent sovereign immunity from the State, we also analyzed the Workers’ 

Compensation Act in its entirety to address the Eagle Pass fund’s argument that even if sovereign 

immunity did not protect it from state regulation, Labor Code Section 415.021, which authorizes 

the State to assess administrative penalties, does not empower it to assess penalties against political 

subdivisions. See Eagle Pass, 14 S.W.3d at 804-06; see also Tex. Lab. Code § 415.021 

(authorizing commissioner to assess administrative penalty against “a person who commits an 

administrative violation” as defined by the Texas Workers’ Compensation Act). As an initial 

matter, we concluded that the Code Construction Act’s definition of “person,” which includes 

3

 We note that the reasoning in Eagle Pass was based on a narrower argument than a similar 

argument regarding the derivative nature of political subdivisions’ immunity that the Texas 

Supreme Court has since considered and rejected in a different context. See Chambers-Liberty 

Cntys. Navigation Dist. v. State, 575 S.W.3d 339, 345 (Tex. 2019) (noting that Texas Supreme 

Court had previously declined to adopt State’s argument in negligence suit that municipality had 

no immunity against State “because the City’s immunity is derived from the State,” citing City of 

Galveston v. State, 217 S.W.3d 466, 473 (Tex. 2007), and that State did not ask supreme court to 

reconsider it in instant case where State pursued money damages against navigation district). As 

discussed in more detail below, in City of Galveston, the Texas Supreme Court cited Eagle Pass

with approval as a case in which the State was allowed to seek money damages from a political 

subdivision because “a statute unambiguously rendered cities liable for workers’ compensation 

penalties.” 217 S.W.3d at 471 & n.33.
12 

“government or governmental subdivision or agency” is the applicable definition, and thus, 

Section 415.021 authorizes penalties against a political subdivision. See Eagle Pass, 14 S.W.3d at 

804-05 (citing Tex. Gov’t Code § 311.005(2) (defining “person”)). 

We then explained that the Texas Workers’ Compensation Commission (now the 

Division) is authorized to monitor insurance carriers to determine if they are in compliance with 

the Workers’ Compensation Act.4 Id. at 802 (citing Tex. Lab. Code §§ 414.001-.007 [now id.

§§ 414.002-.007]; 28 Tex. Admin. Code §§ 180.1–.8 (1999)). We further noted that the definition 

of “insurance carrier” includes political subdivisions that self-insure. See Eagle Pass, 14 S.W.3d 

at 802-03 (citing Tex. Lab. Code § 401.011(27)(C) [now codified at id. § 401.011(27)(D)]). 

Relying on the unambiguous language in the Labor Code, we summarized the applicable 

provisions as follows:

The Workers’ Compensation Act specifically requires political subdivisions to 

provide workers’ compensation benefits to their employees. See Tex. Lab. Code 

Ann. § 504.011. If a subdivision chooses to provide such benefits through selfinsurance, then the subdivision falls under the Act’s definition of “insurance 

carrier,” which expressly includes “a governmental entity that self-insures, either 

individually or collectively.” Id. § 401.011(27)(C) [now codified as id.

§ 401.011(27)(D)]. Section 409.023 of the Act defines when an insurance carrier 

commits an administrative violation . . . . See id. § 409.023 [additional provisions 

now codified at id. §§ 415.002, .0035, .021]. Section 415.022 of the Act specifies 

the amount of administrative penalties that can be assessed for each class of an 

administrative violation. See id. § 415.022 (West 1996) [since repealed; see id.

§ 415.021 (providing for commissioner’s assessment of administrative penalties)]. 

Read in its entirety, the Act clearly subjects political subdivisions to administrative 

penalties.

4

 In 2005, the Texas Legislature made adjustments to the workers’ compensation system 

that included abolishing the Texas Workers’ Compensation Commission and transferring its duties 

to the Division. See generally Act of May 29, 2005, 79th Leg., R.S., ch. 265, 2005 Tex. Gen. Laws 

469, 476 (H.B. 7). 
13

Id. at 806. Therefore, we concluded that “[t]he plain meaning of the statutory text and the structure 

of the Act as a whole support the conclusion that political subdivisions and municipalities are 

subject to administrative penalties under the Workers’ Compensation Act.” Id. Accordingly, we 

rejected the “appellees’ argument that the Commission lacks the statutory authority to impose 

penalties against them, and we resolve[d] any conflict in favor of the Commission.” Id. In other 

words, we held that Labor Code Section 415.021 unambiguously “subjects political subdivisions 

to administrative penalties” assessed by the Division. Id.

No case, either from our Court or from the Texas Supreme Court, has directly 

overruled our holding in Eagle Pass. In fact, in City of Galveston, the Texas Supreme Court cited 

Eagle Pass as an example of a case in which the State was allowed to seek money damages from 

a political subdivision because “a statute unambiguously rendered cities liable for workers’

compensation penalties.” 217 S.W.3d at 471 & n.33 (citing Eagle Pass, 14 S.W.3d at 806; Tex. 

Lab. Code § 415.021; Tex. Gov’t Code § 311.005(2)). Nevertheless, the TPS Fund argues that our 

holding in Eagle Pass is undercut by later decisions of the Texas Supreme Court that it 

characterizes as holding that the State cannot seek claims for fees, penalties, and costs from 

political subdivisions because those are claims for retroactive money damages that are barred by 

political subdivisions’ governmental immunity. We disagree. The three cases relied on by the TPS 

Fund are all distinguishable from Eagle Pass because none of them involve a state agency 

exercising its regulatory authority granted by an unambiguous statute over a political subdivision. 

See Chambers-Liberty Cntys. Navigation Dist., 575 S.W.3d at 347-348 (concluding that Parks and 

Wildlife Code did not authorize State to seek retrospective monetary damages against navigation 

district based on State’s claim that Parks and Wildlife Department, not navigation district, had sole 

power to decide who could cultivate oysters in disputed area); Rolling Plains Groundwater 
14

Conservation Dist. v. City of Aspermont, 353 S.W.3d 756, 760 (Tex. 2011) (per curiam) (holding 

that although Water Code did not unambiguously authorize suit for or assessment of penalties by 

one political subdivision against another, conservation district could seek declaratory relief from 

city but not retroactive money damages consisting of past-due fees, penalties, and costs); City of

Galveston, 217 S.W.3d at 474 (concluding that absent clear and unambiguous consent from 

Legislature, State could not sue home-rule city for damages for negligence resulting in damage to 

State property).

The TPS Fund also argues that Eagle Pass is not controlling because our analysis 

was based in part upon the Code Construction Act’s definition of a “person,” which includes a 

governmental subdivision, but the case was decided before the enactment of Texas Government

Code Section 311.034 in 2001. Section 311.034 provides as follows:

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. In a statute, the use of “person,” as defined by Section 311.005 to include 

governmental entities, does not indicate legislative intent to waive sovereign 

immunity unless the context of the statute indicates no other reasonable 

construction. Statutory prerequisites to a suit, including the provision of notice, are 

jurisdictional requirements in all suits against a governmental entity.

(Emphasis added.) We disagree that Section 311.034 negates our reliance in Eagle Pass on Section 

311.005’s definition of “person.” Our analysis of the Workers’ Compensation Act in its entirety 

led to our conclusion that the statute unambiguously supports a waiver of immunity and provides 

the Division with authority to impose administrative penalties. We did not rely solely on the 

definition of “person” to conclude that the Legislature intended to waive political subdivisions’ 

governmental immunity—we concluded that the context of the statute indicated no other 
15

reasonable construction, given the Workers’ Compensation Act’s specific requirement that political 

subdivisions provide workers’ compensation benefits to their employees, and its inclusion of selfinsured subdivisions in the Act’s definition of “insurance carrier.”

Finally, the TPS Fund contends that two Texas Supreme Court cases have held that

the 2005 amendment to Texas Labor Code Chapter 504 (the Political Subdivisions Law), which

added Section 504.053(e)’s original language stating that “[n]othing in this chapter waives 

sovereign immunity or creates a new cause of action,” so “muddled the issue” of immunity that 

we cannot conclude that the waiver of its immunity for administrative penalties is clear and 

unambiguous. See Travis Cent. Appraisal Dist. v. Norman, 342 S.W.3d 54, 59 (Tex. 2011) (holding 

court could no longer conclude that Political Subdivisions Law waived political subdivisions’ 

immunity for retaliatory-discharge claims under Chapter 451 after addition of Section 504.053(e)’s 

broadly worded no-waiver provision); see also Manbeck v. Austin Indep. Sch. Dist., 381 S.W.3d 

528, 530 (Tex. 2012) (per curiam) (holding that inclusion of fee-shifting provision in list of adopted 

provisions set out in Political Subdivisions Law did not amount to waiver of governmental 

immunity from such fees). We disagree that the holdings in these two cases abrogate our prior 

holding in Eagle Pass or require us to hold that Eagle Pass has been superseded by changes to 

Section 504.053. In both Manbeck and Norman, the Texas Supreme Court was considering 

whether the political subdivisions’ immunity had been waived for damages or attorneys’ fees 

claims by their employees, not for the regulatory action by the Division that is at issue here. In 

both cases, the primary arguments for the waiver of immunity were that the provisions at issue had 

been included in Section 504.002’s list of provisions from the general Workers’ Compensation Act 

laws that are included in the Political Subdivisions Law. See Manbeck, 381 S.W.3d at 530-32 

(holding that although fee-shifting provision had been included in list of adopted provisions, new 
16

no-waiver provision made Political Subdivisions Law too internally inconsistent to constitute 

unambiguous immunity waiver); Norman, 342 S.W.3d at 57-59 (holding that inclusion in list of 

adopted provisions and election-of-remedies provision were not enough to constitute unambiguous 

immunity waiver in light of new no-waiver provision).

In contrast, in Eagle Pass, as discussed at length above, our Court analyzed the 

entirety of the Workers’ Compensation Act and its interaction with the Political Subdivisions Law 

to reach its conclusion that political subdivisions’ immunity is waived for regulatory action by the 

Division. When the Legislature amended the Political Subdivisions Law in 2005 as part of the 

larger overhaul of the workers’ compensation system, it added Section 504.053 to require selfinsuring political subdivisions to provide workers’ compensation medical benefits in the manner 

provided by the section, and as part of that requirement to provide medical benefits, stated that 

nothing waived sovereign immunity or created a new cause of action. In the larger context of the 

Workers’ Compensation Act, as described in Eagle Pass, we do not agree that this no-waiver 

provision abrogates our conclusion that political subdivisions’ immunity is waived for regulatory 

action by the Division. Accordingly, we conclude that the 2019 amendment to Section 504.053(e) 

represents a codification of prior common law. See Tex. Gov’t Code § 311.023(4) (permitting 

courts to consider prior law when construing statutes).

Therefore, we hold that the TPS Fund’s governmental immunity is waived for the 

administrative penalties imposed by the Division. We overrule the TPS Fund’s first issue.

Because we have held that the TPS Fund’s governmental immunity is waived for 

the administrative penalties, we cannot conclude that the trial court abused its discretion by 

refusing to award the TPS Fund attorneys’ fees for defending against a frivolous regulatory action. 
17

See Tex. Civ. Prac. & Rem. Code § 105.005. Accordingly, we overrule the TPS Fund’s 

second issue.

CONCLUSION

Having held that the TPS Fund’s governmental immunity is waived under the 

Workers’ Compensation Act for the administrative penalties imposed by the Division, we affirm 

the trial court’s order denying the Fund’s plea to the jurisdiction and summary-judgment motion.

__________________________________________

Gisela D. Triana, Justice

Before Chief Justice Byrne, Justices Triana and Smith

Affirmed

Filed: October 31, 2023