IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 13-51097

AMERICAN ZURICH INSURANCE COMPANY, 

 Plaintiff-Appellant Cross-Appellee

v.

SANDRA JASSO, Beneficiary of Hilario Jasso, Deceased, 

 Defendant-Appellee Cross-Appellant

Appeals from the United States District Court 

for the Western District of Texas

USDC No. 7:12-CV-7

Before STEWART, Chief Judge, BENAVIDES, and OWEN, Circuit Judges.

PER CURIAM:*

After exhausting its state administrative remedies in Texas, PlaintiffAppellant and Cross-Appellee American Zurich Insurance Company (“Zurich”) 

filed suit in district court seeking reversal of a decision of an appeals panel 

(“Appeals Panel”) for the Texas Department of Insurance, Division of Workers’ 

Compensation (“DWC”) finding Defendant-Appellee and Cross-Appellant 

Sandra Jasso (“Appellee” or “Sandra Jasso”) entitled to death benefits. The 

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not 

be published and is not precedent except under the limited circumstances set forth in 5TH 

CIR. R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

January 13, 2015

Lyle W. Cayce

Clerk

 

 Case: 13-51097 Document: 00512900336 Page: 1 Date Filed: 01/13/2015
No. 13-51097

district court denied Sandra Jasso’s motion to dismiss for lack of subject matter 

jurisdiction. Zurich then filed a motion for summary judgment, and Sandra 

Jasso filed a motion for partial summary judgment. Affirming the decision of 

the Appeals Panel, the district court denied Zurich’s motion but granted 

Sandra Jasso’s motion. Counsel for Sandra Jasso filed a motion for attorney’s 

fees, which the district court denied in part for various reasons. Zurich 

appealed the denial of its motion for summary judgment and the grant of 

Sandra Jasso’s motion for partial summary judgment. Sandra Jasso crossappealed the denial of her motion to dismiss for lack of jurisdiction and the 

partial denial of her attorney’s fees. For the reasons stated herein, we affirm 

the district court in all respects. 

I. FACTUAL AND PROCEDURAL HISTORY

On September 14, 2011, a contested case hearing officer for the Texas 

Department of Insurance determined that Hilario Jasso (“Jasso”) sustained a 

compensable injury on July 20, 2010, that resulted in his death, entitling 

Sandra Jasso to death benefits under the Texas Labor Code. The hearing 

officer deemed the injury compensable because Jasso was acting in the course 

and scope of his employment with DCP Midstream (“DCP”). Zurich, DCP’s 

insurer, appealed the decision of the hearing officer to the Appeals Panel, 

which did not issue a decision within forty-five days of the appeal, causing the 

decision of the hearing officer to become final on December 19, 2011, pursuant 

to Tex. Lab. Code § 410.204(c). Zurich then filed the instant case, seeking a 

determination that Jasso was not acting in the course and scope of his 

employment with DCP at the time of the accident. 

Jasso worked for DCP as a field supervisor based at DCP’s Fullerton 

office on the date of his death. Jasso’s job was to oversee field operations, which 

included scheduling employees, overseeing time off and vacation, and ensuring

that all DCP’s engines in the gas extraction and pipeline operations divisions 

2

 Case: 13-51097 Document: 00512900336 Page: 2 Date Filed: 01/13/2015
No. 13-51097

were running. As part of his job, DCP issued Jasso a cell phone, laptop 

computer, and a company truck. The truck was not to be used for personal 

purposes. DCP also provided Jasso with a fuel card for the truck but required 

Jasso to pay income tax on the value of the use of the company truck to 

commute to and from work. DCP’s logo was on the outside of Jasso’s truck. 

DCP gave Jasso discretion to travel either to the Fullerton office or one of the 

field locations each day. Regardless of whether he traveled to the Fullerton 

office or a field location, Jasso would travel out of Odessa along Highway 385 

North.

On July 19, 2010, Jasso took off work for a wellness physical, which was 

encouraged by DCP so its employees would qualify for an insurance discount. 

On the morning of July 20, 2010, Jasso returned to his physician’s office to 

have his blood drawn for one more test as a part of the physical. He left his 

house for the physician’s office later than he would normally leave for work. 

Jasso received and placed numerous phone calls to various DCP employees 

before having his blood drawn. Jasso left the physician’s office and proceeded

to an off-site work location known as the Love Discharge Facility to meet a 

DCP employee to help make a decision about laying certain pipeline at that

site. On his way to the Love Discharge Facility, Jasso’s truck was struck at an 

intersection on Highway 385 by a vehicle that ran a stop sign. This intersection 

was along the same route as Jasso’s daily commute to and from work. Jasso 

died as a result of the accident. 

II. DISCUSSION

A. Jurisdiction and Abstention

We first consider whether the district court had subject matter

jurisdiction. This court reviews an interlocutory appeal of a denial of a motion 

to dismiss for lack of subject matter jurisdiction de novo. E.I. DuPont de 

Nemours & Co. v. Sawyer, 517 F.3d 785, 792 (5th Cir. 2008). Tex. Lab. Code § 

3

 Case: 13-51097 Document: 00512900336 Page: 3 Date Filed: 01/13/2015
No. 13-51097

410.251 provides that “[a] party that has exhausted its administrative 

remedies under this subtitle and that is aggrieved by a final decision of the 

appeals panel may seek judicial review[.]” Diversity jurisdiction in federal 

court is allowed for “citizens of different States” for “all civil actions where the 

matter in controversy exceeds the sum or value of $75,000, exclusive of 

interests and costs[.]” 28 U.S.C. § 1332(a). 

Sandra Jasso makes two arguments that the district court did not have 

jurisdiction: (1) the enactment of the Texas Workers’ Compensation Act of 1989 

(“1989 Act”) removed the basis for jurisdiction for federal courts to review final 

decisions of an appeals panel for the DWC, and (2) the amount in controversy 

was not greater than $75,000, as the district court case was an appeal of an 

agency finding with no pleading for monetary recovery. 

Counsel for Sandra Jasso cites no caselaw to support the contention that 

the 1989 Act had any effect on federal judicial review of decisions of the DWC. 

In fact, two courts in this circuit have recently stated that subject matter 

jurisdiction extends to Texas Workers’ Compensation Act cases where the 

plaintiff has exhausted administrative remedies. See Rubell v. Gen. Dynamics 

Corp., No. 7:10-CV-00176-O, 2011 WL 477175, at *1 (N.D. Tex. Jan. 20, 2011); 

England v. Liberty Ins. Corp., No. H:10-1937, 2011 WL 3567084, at *2 (S.D. 

Tex. Aug. 12, 2011). The court in Rubell noted that “[a]lthough it is unusual 

to find a worker’s compensation case filed in Federal Court because it is a state 

statutory action, the court does have subject matter jurisdiction so long as 

complete diversity and the requisite amount in controversy are established.” 

2011 WL 477175, at *1. In denying an insurance company’s motion to dismiss 

for lack of subject matter jurisdiction, the court in England stated, “there is no 

Texas law to suggest that this court’s jurisdiction ought to be constrained after 

an initial determination by the DWC that benefits were due.” 2011 WL 

3567084, at *2. The England court concluded that “because . . . a Texas state 

4

 Case: 13-51097 Document: 00512900336 Page: 4 Date Filed: 01/13/2015
No. 13-51097

court would hold that it has jurisdiction, this court . . . has jurisdiction over 

this diversity action.” Id. 

As noted in Rubell, this type of suit is not common in federal court, but 

we agree it is not necessarily improper. 2011 WL 477175, at *1.1 Tex. Lab. 

Code § 410.251 allows judicial review after exhaustion of administrative 

remedies for parties aggrieved by a final decision of an appeals panel of the 

DWC. The Texas Legislature, when attempting to limit jurisdiction, makes 

this intent clear in the statute. See, e.g., Chapman v. Commonwealth Land 

Title Ins. Co., 814 F. Supp. 2d 716, 721 (N.D. Tex. 2011) (finding the Texas 

Legislature not using the term “exclusive jurisdiction” in the Texas Title 

Insurance Act “was not just mere oversight because the Texas Legislature has 

demonstrated that it knows how to confer such jurisdiction when it desires by 

carefully selecting the wording of the statute.”); In re Entergy Corp., 142 

S.W.3d 316, 323 (Tex. 2004) (holding that the Texas Legislature limited 

jurisdiction to the Public Utilities Commission for disputes about rates, 

operations, and services of an electric utility by stating that “the Commission 

has exclusive original jurisdiction over [these issues].” (citing Tex. Util. Code § 

32.001 (West 2007))). While Chapman and Entergy Corp. each addressed 

exclusive jurisdiction of Texas administrative agencies, each case is supportive 

of the idea that the Texas Legislature does, in certain situations, put limits on 

what tribunals can hear certain disputes. The Texas Legislature in Tex. Lab. 

Code § 410.251 included no language attempting to limit appeals from the 

1 The district court’s jurisdiction is also not limited by 28 U.S.C. § 1446(c), which bars 

removal of state court actions arising under workers’ compensation laws of that state, as this

case was originally filed in the federal district court. See Horton v. Liberty Mut. Ins. Co., 367 

U.S. 348, 352 (“Congress used language specifically barring removal of such cases from state 

to federal courts [but] left unchanged the old language which . . . specifically permits civil 

suits to be filed in federal courts in cases where there are both diversity of citizenship and 

the prescribed jurisdictional amount.” (emphasis added)).

5

 

 Case: 13-51097 Document: 00512900336 Page: 5 Date Filed: 01/13/2015
No. 13-51097

DWC to only state courts. A Texas state court would have jurisdiction here, 

and the district court accordingly had diversity jurisdiction. Nothing in the 

1989 Act or its subsequent judicial interpretation indicates otherwise. Thus, 

Appellee’s argument here fails. 

Counsel for Sandra Jasso also argues there is an insufficient amount in 

controversy. This argument is without merit. We have stated: 

[U]nder the Texas workers’ compensation scheme, if the insurance 

company claims an amount supporting jurisdiction, ‘federal 

jurisdiction exists unless the insured denies the allegation that he 

will seek more than [the jurisdictional minimum] in the court

action and makes an affirmative claim for compensation for a sum 

which does not exceed [the jurisdictional minimum]. If the 

employee counterclaims for less than the minimum jurisdictional 

amount, ‘it then becomes clear to a legal and mathematical 

certainty that the amount in controversy is less than the 

jurisdictional requisite.’

Nat’l Union Fire Ins. Co. of Pittsburgh v. Russell, 972 F.2d 628, 630 (5th Cir. 

1992) (citing Hardware Mut. Cas. Co. v. McIntyre, 304 F.2d 566, 569−70 (5th 

Cir. 1962)). Zurich—seeking a reversal of the decision of the Appeals Panel—

claims the amount in controversy is over $75,000. Appellee does not actually 

claim that the death benefits will total less than $75,000 but attempts to rely 

on the fact that the remedy Zurich prayed for was not an actual damages 

amount measured in dollars. However, this technicality does not mean there 

is an insufficient amount in controversy. Although the total amount of

damages is uncertain now, the DWC has found that Sandra Jasso is entitled 

to death benefits, and competent evidence in the record indicated the amount 

could total over $1 million. In fact, counsel for Sandra Jasso argued the 

reduction of his attorney’s fees was improper because the amount involved “is 

astronomical” due to the death benefits entitling her to receive $750 per week

for life. Her life expectancy is thirty-five more years. Obviously, the total 

amount of death benefits expected to be paid exceeds $75,000. Thus, there is 

6

 Case: 13-51097 Document: 00512900336 Page: 6 Date Filed: 01/13/2015
No. 13-51097

a sufficient amount in controversy to satisfy 28 U.S.C. § 1332(a), and the 

district court had proper subject matter jurisdiction. 

Next, counsel for Appellee argues in the alternative that even if the 

district court did have subject matter jurisdiction over this case, it nonetheless 

should have abstained from exercising its jurisdiction under Burford v. Sun 

Oil Co., 319 U.S. 315 (1943), because adequate state remedies exist for this 

dispute, namely, the DWC appeals process. Burford abstention operates as 

such:

Where timely and adequate state-court review is available, a 

federal court sitting in equity must decline to interfere with the 

proceedings or orders of state administrative agencies: (1) when 

there are ‘difficult questions of state law bearing on policy 

problems of substantial public import whose importance 

transcends the result in the case then at bar’; or (2) where the 

‘exercise of federal review of the question in a case and in similar 

cases would be disruptive of state efforts to establish a coherent 

policy with respect to a matter of substantial public concern.’

New Orleans Pub. Serv., Inc. v. Council of City of New Orleans, 491 U.S. 350, 

361 (1989) (citing Colorado River Water Conservation Dist. v. United States, 

424 U.S. 800, 814 (1976)). 

Contrary to Appellee’s stance, “[w]hile Burford is concerned with 

protecting complex state administrative policies from undue federal influence, 

it does not require abstention whenever there exists such a process, or even in 

all cases where there is a ‘potential for conflict’ with state regulatory law or 

policy.” Id. at 362. This court examined Burford abstention in relation to the 

Texas Workers’ Compensation scheme in St. Paul Ins. Co. v. Trejo, 39 F.3d 585 

(5th Cir. 1994). The court in Trejo found Burford abstention inapplicable 

because the lawsuit did not involve a state administrative proceeding and did 

“not seek to interfere with Texas’ worker’s compensation system.” Id. at 589. 

The declaratory judgment action in Trejo, which sought interpretation of a 

settlement agreement entered into after the claimant received an award from 

7

 Case: 13-51097 Document: 00512900336 Page: 7 Date Filed: 01/13/2015
No. 13-51097

the Texas Workers’ Compensation Commission, “would neither affect the 

state’s system of reviewing worker’s compensation awards nor be disruptive of 

the state’s policies respecting worker’s compensation.” Id.

The insurer in Trejo sought interpretation of a settlement agreement 

after the available administrative process had been exhausted. 39 F.3d at 

586−87. The posture here is similar: there is no other available administrative

process to review the decision of the Appeals Panel. While abstention is 

appropriate on occasion, there exists a “virtually unflagging obligation of the 

federal courts to exercise the jurisdiction given to them.” Colorado River, 424 

U.S. at 817. Neither requirement of Burford abstention is satisfied by federal 

court review of final decisions of the DWC. A federal district court hearing an 

appeal from that decision would not meddle in the state administrative process

but would merely provide a forum for diverse parties to seek judicial review as 

contemplated by Tex. Lab. Code. § 410.251. Accordingly, abstention is not 

proper here.

B. Course and Scope of Employment

Turning to the merits, Zurich argues the district court erred in affirming 

the finding of the Appeals Panel that Jasso was acting in the course and scope 

of his employment within the meaning of Tex. Lab. Code § 401.011(12). This 

court reviews the district court’s grant of summary judgment de novo, applying 

the same standards as the district court. Haverda v. Hays Cnty., 723 F.3d 586, 

591 (5th Cir. 2013). Summary judgment is proper only “if the movant shows 

that there is no genuine dispute as to any material fact and the movant is 

entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). Further, “[o]n 

cross-motions for summary judgment, we review each party’s motion 

independently, viewing the evidence and inferences in the light most favorable 

8

 Case: 13-51097 Document: 00512900336 Page: 8 Date Filed: 01/13/2015
No. 13-51097

to the nonmoving party.”2 Trinity Universal Ins. Co. v. Emp’rs Mut. Cas. Co., 

592 F.3d 687, 691 (5th Cir. 2010) (citing Ford Motor Co. v. Tex. Dep’t of Transp., 

264 F.3d 493, 498 (5th Cir. 2001)). We “may affirm the district court’s decision 

on any basis presented to the district court.” Haverda, 723 F.3d at 591 

(internal quotation marks and citation omitted). 

For an injury to be compensable under the Texas Workers’ 

Compensation Act, the injury must arise out of and in the course and scope of 

employment. Tex. Lab. Code § 401.011(10). Course and scope of employment 

is defined as “an activity of any kind or character that has to do with and 

originates in the work, business, trade, or profession of the employer and that 

is performed by an employee while engaged in or about the furtherance of the 

affairs or business of the employer.” Id. § 401.011(12). This includes activities 

conducted on the premises of the employer and at other locations. Id. 

One statutory exclusion from course and scope is implicated in this case: 

“transportation to and from the place of employment.” Id. § 401.011(12)(A). 

This exclusion is commonly referred to as the “coming and going” exclusion. If 

an employee’s ultimate destinations are home and work, despite any 

intermediate stops in-between, the “coming and going” exclusion merits 

analysis. Leordeanu v. Am. Prot. Ins. Co., 330 S.W.3d 239, 246 (Tex. 2010) 

(“The ‘coming and going’ rule developed . . . specifically for travel between home 

and work.”); see Zurich Am. Ins. Co., v. McVey, 339 S.W.3d 724, 727−29 (Tex. 

App.—Austin 2011, pet. denied) (analyzing the “coming and going” exclusion 

because the travel was between work and home even though the injury 

2 The district court order stated that in “[v]iewing the facts most favorable to 

Defendant, these summary facts establish that DCP required Jasso to travel as part of its 

business.” The district court then relied on this finding in granting Sandra Jasso’s motion 

and denying Zurich’s. In truth, there are no disputed facts, and the motions turn on the issue 

of whether, as a matter of law, Jasso’s travel was in the course and scope of his employment 

with DCP. 

9

 

 Case: 13-51097 Document: 00512900336 Page: 9 Date Filed: 01/13/2015
No. 13-51097

occurred while the employee was first on his way to pick up a co-worker and 

then to a mandatory work conference in another city). 

However, even when the “coming and going” exclusion must be analyzed, 

the activity might still be excepted from this exclusion if one of the following is 

satisfied:

(i) the transportation is furnished as part of the contract of 

employment or is paid for by the employer; (ii) the means of the 

transportation are under the control of the employer; or (iii) the 

employee is directed in the employee’s employment to proceed from 

one place to another place.

Tex. Lab. Code § 401.011(12)(A)(i)−(iii) (emphasis added). 

Satisfying an exception to the “coming and going” exclusion does not 

necessarily mean the travel falls within the course and scope of employment; 

it only means that this exclusion does not keep the activity outside the course 

and scope of employment. McVey, 339 S.W.3d at 729. Once the exclusion is 

deemed excepted from, courts then examine whether the activity originated in 

the work of the employer and whether the employee was engaged in or about 

the furtherance of the business of the employer. Id. at 730.

It is undisputed that Jasso was traveling to and from work in a truck 

provided by DCP at the time of his accident. Thus, while the “coming and 

going” exclusion is implicated, Jasso’s activity is excepted from this exclusion. 

See Leordeanu, 330 S.W.3d at 249 (stating that the employee “was driving a 

car provided by her employer at the time of her accident and therefore [was] 

excepted from the ‘coming and going’ rule”).3 

3 Zurich argued that the district court erred by disagreeing with its argument that 

since Jasso’s vehicle was not a necessity to his contract of employment with DCP, the 

provision-of-the vehicle exception was ineffective. Under this theory, if the vehicle was not a 

necessity to the contract of employment, it would be excluded under the coming and going 

exclusion. Texas jurisprudence disagrees with this application. See Leordeanu, 330 S.W.3d 

at 249 (applying the provision-of-the vehicle exception without considering necessity). As 

discussed infra, necessity is only considered at the origination stage. See, e.g., Seabright Ins. 

10

 

 Case: 13-51097 Document: 00512900336 Page: 10 Date Filed: 01/13/2015
No. 13-51097

Jasso’s activity still may be in the course and scope of his employment 

with DCP, as long as it satisfies the origination and furtherance requirements. 

Outside of the commuting context, furtherance may be a more complicated 

question, but “[a]n employee’s travel to and from work makes employment 

possible and thus furthers the employer’s business, satisfying” this 

requirement. Id. at 242. As it is undisputed that Jasso was traveling to and 

from work at the time of the accident, his activity satisfies the furtherance

requirement. The only remaining requirement is that the activity “originates

in the work, business, trade, or profession of the employer.” Tex. Lab. Code § 

401.011(12). 

In Texas, “there is no bright line rule for determining if employee travel 

originates in the employer’s business as each situation is dependent on the

facts.” Seabright Ins. Co. v. Lopez, 427 S.W.3d 442, 448 (Tex. App.—San 

Antonio 2014, pet. filed May 9, 2014). Further, “[n]o single fact is dispositive; 

rather, [courts] consider the nature of the employee’s job, the circumstances of 

the travel, and any other relevant facts.” Id. Courts are tasked with 

“determin[ing] whether the relationship between the travel and the 

employment is so close that it can fairly be said that the injury had to do with 

and originated in the work, business, trade or profession of the employer.” 

Leordeanu, 330 S.W.3d at 242 (citation omitted). 

We start with the assumption that an employee’s travel to and from work 

does not ordinarily satisfy origination, as “[t]he risks to which employees are 

exposed while traveling to and from work are shared by society as a whole and 

do not arise as a result of the work of employers.” Id. (quoting Evans v. Ill. 

Emp’rs Ins. of Wausau, 790 S.W.2d 302, 305 (Tex. 1990)). However, as a 

Co. v. Lopez, 427 S.W.3d 442, 448−49 (Tex. App.—San Antonio 2014, pet. filed May 9, 2014)

(discussing the concept of necessity as related to origination). 

11

 

 Case: 13-51097 Document: 00512900336 Page: 11 Date Filed: 01/13/2015
No. 13-51097

general rule, an employee’s travel originates in his employer’s business if the 

travel was pursuant to the express or implied requirements of the employment 

contract. Tex. Mut. Ins. Co. v. Jerrols, 385 S.W.3d 619, 630 (Tex. App.—

Houston [14th Dist.] 2012, no pet. h.). In situations where “the employer 

requires the employee to travel as part of its business—i.e., pursuant to the 

contract of employment—the risk of traveling stems from that business and 

properly can be said to arise as a result of the employer’s business.” Id. 

(quotation omitted). Further, “only employer-provided transportation that 

amounts to a necessity from the employer’s perspective, and not just a 

gratuitous accommodation to the employee, is sufficient, without more,” to 

satisfy the origination requirement. Seabright, 427 S.W.3d at 448−49

(emphasis added) (footnote omitted). It is clear, however, that even if the 

vehicle was not a necessity to the contract, the court can still find that the 

travel originated in the employer’s business. See id. (holding that “the 

company truck was furnished to [the employee] gratuitously” and even still, as 

a matter of law, the employee’s travel originated in and furthered the 

employer’s business).

The Seabright court found that origination was satisfied based on the 

additional evidence that the employee and his wife resided 450 miles away 

from the jobsite, “[the employer] paid [the employee] a per diem while he was 

working at the . . . jobsite that was not paid to its workers at its home office[,] 

. . . and [the employee] used his per diem to stay at a motel about forty miles 

[from the jobsite].” Id. at 459. This additional evidence “illustrate[d the 

employer] clearly knew the only reason employees . . . would be present in the 

area of [the jobsite] was their job.” Id. at 450. “As such, a commute to the

jobsite [was] not only expected, but in reality, required.” Id. In finding that 

the travel satisfied origination, the Seabright court stated “a strong nexus 

12

 Case: 13-51097 Document: 00512900336 Page: 12 Date Filed: 01/13/2015
No. 13-51097

between [the employee’s] employment and travel [existed] on the day of the 

accident.” Id.

In the present case, the evidence in the record indicates that DCP’s 

provision of the truck to Jasso was not a necessity to the contract of 

employment because Jasso was required to pay income tax for his use of the 

truck between work and home. There was no contravening evidence to suggest 

the provision of the truck was anything more than gratuitous. Thus, DCP’s 

provision of the truck does not establish on its own that Jasso’s travel was 

within the course and scope of employment, and we must consider the 

remaining evidence. See Seabright, 427 S.W.3d at 448−49. Facts that tend to 

show there was a strong nexus between Jasso’s travel and his employment 

with DCP are: (1) DCP supplied Jasso with the truck and a fuel card; (2) DCP 

required Jasso to travel to the field sites away from the Fullerton office; (3) 

Jasso traveled to field sites about 20% of the time; and (4) the wellness physical 

was encouraged by DCP. Facts that do not tend to show strong nexus are: (1) 

Jasso had to pay income tax for the use of his truck between work and home; 

(2) this was not over-night and across-state travel as in Seabright, but travel 

from Jasso’s home to an off-site work location; (3) Jasso was on the same route 

he would have been on during his normal commute; and (4) Jasso left later

than normal and stopped by his doctor’s office before heading to the worksite. 

Regarding the fact that Jasso was on the same route he would have been 

on during his normal commute, it is true that “[t]he risks to which employees 

are exposed while traveling to and from work are shared by society as a whole 

and do not arise as a result of the work of employers.” Leordeanu, 330 S.W.3d 

at 242. But Jasso was in fact traveling to the off-site Love Discharge Facility, 

not the home office in Fullerton—which DCP required him to do—and which 

created extra travel and extra risk for Jasso. Evidence in the record indicated 

Jasso would be returning to the Fullerton office after his trip to the Love 

13

 Case: 13-51097 Document: 00512900336 Page: 13 Date Filed: 01/13/2015
No. 13-51097

Discharge Facility. Jasso was on the only major road going north out of 

Odessa, which happens to be along the same route as the home office. This 

was extra travel and extra risk created by the requirements of Jasso’s 

employment with DCP. It would be arbitrary for the compensability of Jasso’s 

injuries to be based solely on the geographic placement of his off-site work 

location. Additionally, it is not of particular import that Jasso left his home 

later than normal, especially in light of the fact that DCP encouraged Jasso to 

undergo the wellness physical. Further, while the travel required by DCP was 

not hundreds of miles away from the home office, as in Seabright, DCP 

nonetheless required Jasso to travel beyond his ordinary commute. 

There was a strong nexus between Jasso’s travel to the Love Discharge 

Facility on July 20, 2010, and his employment with DCP. We conclude that

Jasso’s travel to the off-site Love Discharge Facility on the day of his accident 

originated in the business of DCP. Accordingly, we affirm the district court’s 

finding that Jasso’s travel was in the course and scope of his employment with 

DCP. 

C. Attorney’s Fees

Lastly, counsel for Sandra Jasso argues that the district court 

improperly reduced his attorney’s fees. It is understood that “[i]n awarding 

attorney’s fees, the district court is empowered to exercise its informed 

discretion, and a reviewing court will not disturb the judgment of the district 

court absent a showing of an abuse of discretion.” Graves v. Barnes, 700 F.2d 

220, 221 (5th Cir. 1983). Further, “the district court’s factual findings 

[regarding attorney’s fees] will not be disturbed unless they are clearly 

erroneous.” Id. at 221−22. Tex. Lab. Code § 408.221(c) is a fee-shifting statute 

that provides: 

[a]n insurance carrier that seeks judicial review . . . of a final 

decision of the appeals panel regarding compensability or 

14

 Case: 13-51097 Document: 00512900336 Page: 14 Date Filed: 01/13/2015
No. 13-51097

eligibility for, or the amount of, income or death benefits 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 . . . . 

Fees sought under this statute must be approved by the court based on written 

evidence presented to the court. Id. § 408.221(a), (b). The court considers

seven factors in evaluating the fee: (1) the time and labor required; (2) the 

novelty and difficulty of the questions involved; (3) the skill required to perform 

the legal services properly; (4) the fee customarily charged in the locality for 

similar legal services; (5) the amount involved in the controversy; (6) the 

benefits to the claimant that the attorney is responsible for securing; and (7) 

the experience and ability of the attorney performing the services. Id. § 

408.221(d)(1)−(7). It is not necessary to establish each of these factors. See 

Hays & Martin, L.L.P. v. Ubinas-Brache, 192 S.W.3d 631, 636 (Tex. App.—

Dallas 2006, pet. denied).

The district court reduced the hourly rate requested by Sandra Jasso’s 

counsel from $375 per hour to $288 per hour. Zurich pointed out that 28 Tex. 

Admin. Code § 152.4(d) allows for a maximum rate of $150, less than half the 

rate requested by Sandra Jasso’s counsel. The district court found it was not 

bound by this limitation, however, but only by Tex. Lab. Code § 408.221(d) 

because an award under § 408.221(c) “is not subject to commissioner rules . . . .” 

Tex. Lab. Code § 408.221(c). This is correct because the award here is made 

pursuant to Tex. Lab. Code § 408.221(c), as Zurich sought judicial review of a 

final decision of the Appeals Panel regarding the issue of Sandra Jasso’s 

eligibility for death benefits, on which Sandra Jasso originally prevailed. 

The forum district in this case, Odessa, Texas, is the relevant locality in 

which to compare the fees customarily charged. Hawkins v. Nat’l Ass’n of Sec. 

Dealers, Inc., No. 3−96−CV−3219−R, 1998 WL 74259, at *1 (N.D. Tex. Feb. 13, 

15

 Case: 13-51097 Document: 00512900336 Page: 15 Date Filed: 01/13/2015
No. 13-51097

1998); Garmong v. Montgomery Cnty., 668 F. Supp. 1000, 1007 (S.D. Tex. 

1987). Zurich put forth evidence that the $375 hourly rate is not consistent 

with prevailing rates in Odessa, Texas. This is the main factor from Tex. Lab. 

Code § 408.221(d) on which the district court relied. Zurich provided the Texas 

Lawyer’s Annual Salary and Billing 2012 Survey and the State Bar of Texas 

2011 Hourly Fact Sheet. The district court noted that: (1) the average billing 

rate for equity partners in San Antonio in 2012 was $285 per hour; (2) the rates 

for equity partners in Texas in areas other than Dallas, Houston, or San 

Antonio averaged $289 per hour; (3) the median rate in West Texas for 

personal injury litigation was $205 per hour and $257 per hour for labor and 

employment litigation; and (4) attorneys with approximately 25 years of 

experience in West Texas charged an average of $288 per hour. Based on this, 

the district court found the $375 per hour rate too high. The district court 

relied on reasonable data in reducing Sandra Jasso’s counsel’s hourly billing 

rate to $288. Thus, the district court did not abuse its discretion and made no 

clearly erroneous factual findings in reducing the hourly rate of Sandra Jasso’s 

counsel. See Graves, 700 F.2d at 221. 

The district court also reduced the fees requested for time spent traveling 

to 17.5 hours at the hourly rate of $288, as opposed to the requested 35 hours 

at $375 per hour. Courts often reduce working and non-working travel time. 

See In re Babckock & Wilcox Co., 526 F.3d 824, 828 (5th Cir. 2008) (per curiam) 

(noting that generally “it is not an abuse of discretion to discount non-working 

(and even working) travel time”); see also Watkins v. Fordice, 7 F.3d 453, 

458−59 (5th Cir. 1993) (holding that the district court did not abuse its 

discretion by reducing the hourly rate billed by 50% for travel time). As the 

district court properly noted, counsel for Sandra Jasso did not provide any 

evidence that work was done during this travel and did not demonstrate that 

comparably skilled practitioners charge their full hourly rate for travel time. 

16

 Case: 13-51097 Document: 00512900336 Page: 16 Date Filed: 01/13/2015
No. 13-51097

The district court did not abuse its discretion by reducing attorney’s fees for 

time billed while traveling.

The district court also did not allow any expenses because no written 

evidence of the expenses was given; counsel merely listed the lump sum owed

of $2,516.79. Instead, the district court reserved judgment on the issue of 

expenses until counsel provided the court with invoices, receipts, and 

supporting affidavits (including the descriptions and nature of each expense 

and the reasons therefore). Sandra Jasso’s counsel filed supplements in the 

form of spreadsheets showing the amount, date, and description of expenses 

incurred in this case. The district court ruled that Sandra Jasso’s counsel did 

not provide adequate documentation in the form of invoices or receipts, as 

requested, but rather only provided its in-house expense spreadsheet. Thus, 

the district court denied Sandra Jasso’s counsel all requested expenses. The 

district court did not abuse its discretion in disallowing these expenses after

counsel did not comply with its order. See Glass v. U.S., 335 F. Supp. 2d 736, 

742−43 (N.D. Tex. 2004) (holding that failure to produce supporting 

documentation regarding billing statements of counsel after an order to was a 

factor in denying requested attorney’s fees). 

Counsel for Sandra Jasso also requested attorney’s fees in the event the 

district court case was appealed to this court and the United States Supreme 

Court. The district court denied the request for appellate fees. It is well settled 

in this circuit that a denial of appellate attorney’s fees by the district court 

before an appeal is taken is proper. Instone Travel Tech Marine & Offshore v. 

Int’l Shipping Partners, Inc., 334 F.3d 423, 433 (5th Cir. 2003) (“It is difficult 

to imagine how a district court’s refusal to award appellate attorney fees before 

an appeal had even been taken could possibly be declared an error.”). Rather, 

“[t]he issue of appellate attorney’s fees is a matter for the district court 

17

 Case: 13-51097 Document: 00512900336 Page: 17 Date Filed: 01/13/2015
No. 13-51097

following the resolution of an appeal.” Id. Thus, the district court did not 

abuse its discretion by not allowing these prospective appellate fees.

The district court did not abuse its discretion in disallowing any of the

requested attorney’s fees from Sandra Jasso’s counsel. 

III. CONCLUSION

In conclusion, we AFFIRM the district court’s denial of Sandra Jasso’s 

motion to dismiss. We also AFFIRM the district court’s grant of partial 

summary judgment in favor of Sandra Jasso and its denial of Zurich’s motion 

for summary judgment. Lastly, we AFFIRM the district court’s denial of 

certain attorney’s fees requested by counsel for Sandra Jasso. 

18

 Case: 13-51097 Document: 00512900336 Page: 18 Date Filed: 01/13/2015