TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-21-00321-CV

Employees Retirement System of Texas and

Minnesota Life Insurance Company, Appellants

v.

LaRae Walker, Appellee

FROM THE 345TH DISTRICT COURT OF TRAVIS COUNTY

NO. D-1-GN-19-002744, THE HONORABLE JAN SOIFER, JUDGE PRESIDING

M E M O R A N D U M O P I N I O N

The Employees Retirement System of Texas (ERS) and Minnesota Life Insurance 

Company appeal from the trial court’s judgment that reversed ERS’s decision to deny 

LaRae Walker’s claim for accidental-death benefits and ordered Minnesota Life to pay the claim.

On review, we must determine whether substantial evidence supports ERS’s conclusion that

Walker’s husband (Decedent) was intoxicated, which substantially contributed to his decision to 

attempt to cross a busy freeway on foot. We conclude that it does and accordingly reverse the 

trial court’s judgment and render judgment affirming ERS’s order.

PROCEDURAL BACKGROUND

Walker, an employee of the State of Texas, purchased Dependent Voluntary 

Accidental Death and Dismemberment (AD&D) Insurance under the Renewable Group Term 

Life Insurance policy established by the ERS Board of Trustees and administered by Minnesota 
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Life. The policy covers loss of life as a direct result of accidental bodily injury to the employee 

or dependent. Walker’s spouse was a dependent and insured under the policy. On April 22, 

2015, at about 6:15 a.m., Walker’s spouse attempted to walk across Interstate Highway 635 in 

Dallas and was struck by five cars and killed. The autopsy report indicated that Decedent’s 

blood contained methamphetamine and cocaine metabolites.

Walker filed a claim for accidental-death benefits with Minnesota Life, which 

determined that the policy excluded her spouse’s death from coverage pursuant to a clause 

providing that the policy “does not cover any loss caused by, resulting from or substantially 

contributed to by . . . [t]he insured individual being intoxicated by reason of alcohol or drug use,

or a combination thereof.” The policy defined “intoxication” as in Section 49.01 of the Texas 

Penal Code. See Tex. Penal Code § 49.01 (defining term, relevantly, to mean “not having the 

normal use of mental or physical faculties by reason of the introduction of . . . a controlled 

substance, a drug, a dangerous drug, [or] a combination of two or more of these substances”).

After Minnesota Life denied her claim, Walker appealed to ERS, which concurred with

the denial.

Walker requested a contested-case hearing before the State Office of 

Administrative Hearings (SOAH). At the hearing, Walker had the burden by a preponderance of 

the evidence to prove that she was entitled to benefits under the policy. See Tex. Ins. Code 

§ 1551.357(d); 34 Tex. Admin. Code § 67.55(b) (2022) (Employees Retirement Sys., Ord. of 

Proc.). The administrative law judge (ALJ) concluded that Walker failed to prove that the 

intoxication exclusion does not apply and did not prove that she is eligible to receive the 

accidental-death benefits for the death of her spouse. The ERS Executive Director entered an 

order adopting the ALJ’s findings of fact and conclusions of law, concurring that Walker was not 
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eligible for accidental-death benefits. Walker filed a motion for rehearing, which was overruled 

by operation of law.

Walker filed a suit for judicial review in the trial court challenging ERS’s final 

order. See Tex. Ins. Code § 1551.359 (providing right to judicial review for person aggrieved by 

ERS final decision and for “substantial evidence” standard of review). After a hearing on the 

merits, the trial court reversed ERS’s decision and ordered Minnesota Life to pay Walker the 

claim. ERS and Minnesota Life perfected this appeal.

EVIDENCE ADMITTED BY THE ALJ

The ALJ admitted the depositions of the following persons: Stephen Hastings, 

M.D., a pathologist and the medical examiner who performed the autopsy on Decedent;

Ross Stedman, the claims manager of the AD&D program for Minnesota Life; and Jon Rod 

McCutcheon, a forensic toxicologist. Documentary exhibits admitted included Decedent’s 

autopsy report and certified death certificate, both of which were attached to Dr. Hastings’s 

deposition; McCutcheon’s toxicology report, which was based on the autopsy toxicology 

results and was attached to his deposition; and the police report from the incident causing

Decedent’s death.

Autopsy report and death certificate

The autopsy report is signed by Dr. Hastings as well as Tracy Dyer, M.D., 

Medical Examiner, and Jeffrey Barnard, M.D., Director and Chief Medical Examiner of the 

Dallas County Medical Examiner’s Office. It reports the manner of death—“accident”—and 

states that “[b]ased on the case history and autopsy findings, it is our opinion that [Decedent] . . . 

died as a result of blunt force injuries.” The toxicology portion of the report indicates the 
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following substances in Decedent’s blood: (1) methamphetamine (0.91 mg/L), (2) amphetamine 

(0.06 mg/L) (together listed under the subheading “Alkaline Quantitation”), (3) ecgonine methyl 

ester (0.026 mg/L), and (4) benzoylecgonine (0.116 mg/L) (together listed under the subheading 

“Cocaine and Metabolites”). The certified death certificate identifies the “immediate cause” of 

death as “blunt force injuries” and the manner of death as “accident.” Although it contains a 

space for adding “significant conditions contributing to death,” that space is blank.

Police report

The police report narrates that Decedent, “a pedestrian, was attempting to cross 

the westbound traffic lanes of L.B.J. Frwy. from south to north,” and that a car traveling in the 

second lane from the left “collided” with him, after which Decedent “was vaulted into the air,”

“fell to the roadway,” and “was subsequently run over by” four other cars traveling westbound 

on the roadway. The narrative concludes, “This report had been marked incomplete pending 

an analysis of a specimen of the pedestrian’s blood.” No further evidence from the police 

department was admitted.

Medical examiner’s deposition

Dr. Hastings performed the autopsy the day after Decedent’s death, within the 

usual period from which an examiner can generally “get a pretty good idea of what’s going on 

with someone.” The extensive, severe injuries to Decedent’s body were “consistent with a 

pedestrian getting hit by a motor vehicle or multiple motor vehicles” and with the information 

Dr. Hastings had received from investigative sources that medical examiners typically consult 

before performing an autopsy.
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Dr. Hastings explained that medical examiners at his office routinely order a 

toxicology report for every autopsy performed, and that in some cases the report is helpful 

to determine “what caused the death of the person.” He testified that Decedent’s toxicology 

report showed the presence of methamphetamine, amphetamine, ecgonine methyl ester, and 

benzoylecgonine in his blood. Methamphetamine and amphetamine are “intoxicating 

substances,” and the former is an illegal drug, while the latter “can either be a metabolite of 

methamphetamine or . . . a prescription drug.” Dr. Hastings explained that when cocaine is 

metabolized by the body, the two substances identified in the toxicology screen as ecgonine 

methyl ester and benzoylecgonine will be present. Those two cocaine metabolites cannot “show 

up” on a toxicology report if someone “doesn’t take cocaine.”

Dr. Hastings did not deem the toxicology results “relevant” “as far as the cause 

and manner of death.” Because of Decedent’s “extensive blunt force injuries,” the toxicology 

substances were not listed as “contributory” to the cause and manner of death. Dr. Hastings did 

not attribute any of the drugs found in Decedent’s blood “to causing his death” and would only 

include such information when “there’s nothing else [to explain] [a] cause of death,” such as 

when someone is “found dead with a syringe in their arm.” When asked whether Decedent had 

“levels of drugs that would cause death,” Dr. Hastings responded, “There’s no safe amount of 

methamphetamine. So methamphetamine can cause death at really any dosage.” He made the 

same statement with respect to cocaine and stated that there is no “therapeutic level” for

methamphetamine. The autopsy revealed that Decedent was alive when he suffered the bluntforce injuries and had not died (such as from drug overdose) before then.

Dr. Hastings testified that the drugs present in Decedent’s system when he died 

could cause someone to “become agitated, delirious, unaware of their surroundings, have 
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decreased spatial awareness, [and] not be able to walk straight.” However, he further testified, 

the drugs found in Decedent’s system affect individuals differently and that, absent evidence 

documenting how a person was acting, one could not discern a person’s level of impairment 

from the toxicology results alone. Dr. Hastings testified that Decedent’s death did “not 

result” from intoxication, as defined in the Texas Penal Code, and that intoxication did not 

“substantially contribute” to his death. However, Dr. Hastings clarified that, as a medical 

examiner, he is not charged with determining how an incident or accident occurs and that

generally he is “looking at the immediate cause of death.” He also did not have an opinion “one 

way or the other” about whether intoxication led to the incident where [Decedent] was killed.”

Typically, he would not “look into” what led to an incident causing death “unless it’s a suspected 

homicide or something along those lines.” From his point of view as the medical examiner, in 

conducting autopsies, he focuses on the “immediate cause of death.” Although his office

routinely performs toxicology tests, those results “won’t be relevant” to “cause of death” as 

noted in autopsy reports except in cases such as drug overdose or homicide. He also does not 

generally “form a conclusion” about whether someone was intoxicated in a case such as this.

Dr. Hastings testified that methamphetamine and cocaine are central-nervoussystem stimulants, and that Decedent had taken both “at some point” before his death. He 

could not say that Decedent was not intoxicated at his time of death or that intoxication did 

not lead to the events that caused his death. He testified that both drugs can cause “euphoria, 

excitation and a rapid flow of thoughts,” a “heightened sense of well-being,” “irrational

behavior,” hallucinations, psychosis, symptoms of schizophrenia, and the “ill advised” decision 

to “attempt to cross the LBJ Freeway on foot.” One’s attempting to cross the interstate on foot 

might be due to his not having his “normal mental faculties,” but because Dr. Hastings did not 
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see Decedent before he died, he could not determine his “degree of intoxication,” and he would 

not assume that Decedent was acting “crazy, schizophrenic, or strange[ly]” merely because he 

had drugs in his system.

Forensic toxicologist’s deposition

McCutcheon is certified by the American Board of Forensic Toxicology and has 

previously served as the chief forensic toxicologist in both the Travis County and Bexar County 

Medical Examiner’s Offices. While serving in those roles, he had been called to testify in

criminal and civil proceedings to “interpret the findings of whatever drug that was present or 

alcohol that was present” in a person’s system and “how that might affect the persons, whether 

it caused impairment, or if it could have been the cause of death in an overdose situation.”

McCutcheon reviewed the autopsy here, specifically the toxicology results, and testified that “it 

was fair” to conclude that Decedent had ingested both methamphetamine and cocaine in the

hours preceding his death.

Methamphetamine is a central-nervous-system stimulant that has some

therapeutic use as a prescription drug for narcolepsy and attention-deficit disorder; however, it is 

more commonly used as an illicit drug. A therapeutic dosage would have “a fairly low

concentration” in the range of 0.02 to 0.05 mg/L, with “some literature” indicating that it can 

range “up to .2” mg/L. Decedent’s concentration (of 0.91 mg/L) was higher than the therapeutic 

concentration and “is consistent with what has been shown in the literature to be an abuse level

or an abuse concentration.” McCutcheon identified the “literature” and sources he reviewed to 

complete his report, and he stated that they are the types of information upon which experts such 

as himself rely for information about drugs.
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He testified that, in his capacity as a forensic toxicologist, he is familiar with what 

effect methamphetamine can have on someone if it is abused: being “more awake”; feelings of

excitement, euphoria, heightened awareness, or paranoia; speeding thoughts; sometimes violent 

behavior; and an increase in blood pressure and heart rate. Additionally, people who have been 

observed with abuse concentrations have exhibited irrational, aggressive, impulsive, and risky 

behavior (e.g., high-speed driving); rapid speaking; and incoherent thinking. Cocaine is also a 

central-nervous-system stimulant and can have the same effects in terms of impulsiveness and 

risk-taking behavior.

Based on the toxicology findings in the autopsy report, McCutcheon concluded 

that Decedent was intoxicated at the time of his death. His report states, “In my opinion, within 

reasonable toxicological possibility, [Decedent] had lost the normal use of his mental and 

physical faculties, due to the methamphetamine in his system, at the time of his death.” He 

stated that he is familiar with the LBJ Freeway in North Dallas, which ranges between six and

eight lanes across in the area where Decedent was found and believes that it “would be foolish to 

try to cross it on foot” and that attempting to do so is both “ill-advised” and “consistent with 

someone who does not have his or her normal mental faculties.” He opined that Decedent’s 

intoxication substantially contributed to his death. He stated the bases for his conclusion: the 

amount of methamphetamine in Decedent’s blood, indicating that he was intoxicated at the 

time of death, and the “circumstantial situation indicated by” the police report indicating that 

“[s]omething was affecting [Decedent’s] perception and his decision-making at that time to 

try to cross the very busy freeway.” He explained that even if Decedent in a sober state had 

impulsive and irrational tendencies, his intoxication would have increased them. Due to the high 

concentration of methamphetamine in Decedent’s system, “there definitely will be significant
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effects from the drug.” However, McCutcheon admitted that he did not know how Decedent was 

acting just before trying to cross the freeway, what his usual sober state of behavior or risktaking level was, or what level of tolerance to methamphetamine he may have acquired.

Claims manager’s deposition

Stedman made the decision for Minnesota Life to deny Walker’s claim. He 

testified that he and his staff rely on medical doctors, toxicologists, and other medical 

professionals in making such decisions. In this case, the decision was based on a records review 

by Dr. Battis, a medical doctor employed by Minnesota Life. In an entry in the claim file, 

Dr. Battis noted: “The toxicology reveals [Decedent] had cocaine and methamphetamine both of 

which would have rendered him not to have the normal use of his mental faculties” and that such 

intoxication “should have also been listed in the [death certificate] as a contributing cause based 

upon these records.”

DISCUSSION

The immediate cause of Decedent’s death is undisputed—blunt-force injuries 

from being hit by one or more vehicles on the freeway as he attempted to cross it on foot. The 

dispute lies in whether ERS could reasonably have concluded that the undisputed levels of illegal 

drugs in Decedent’s system at the time of his death caused him to be intoxicated and that such 

intoxication substantially contributed to his death. The ALJ concluded that McCutcheon’s 

testimony established that Decedent was intoxicated and that it was “reasonable to infer” that his 

intoxication “caused or substantially contributed to his decision to cross the freeway, which in 

turn led to his death.” He further concluded that Walker was unable to meet her burden of proof 

to establish that Decedent “either was not intoxicated or that his intoxication did not substantially 
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contribute to his decision to cross the freeway.” She therefore “failed to prove” that the policy 

exception did not apply and that she is eligible to receive the AD&D benefits.

Standard of review

The “substantial evidence” standard of review authorizes reversal or remand of 

an agency decision that prejudices the appellant’s substantial rights because the administrative 

findings, inferences, conclusions, or decisions (1) violate a constitutional or statutory provision, 

(2) exceed the agency’s statutory authority, (3) were made through unlawful procedure, (4) are 

affected by other error of law, or (5) are arbitrary or capricious or characterized by abuse of 

discretion or clearly unwarranted exercise of discretion. Tex. Gov’t Code § 2001.174. It also 

authorizes a reviewing court to test an agency’s findings, inferences, conclusions, and decisions 

to determine whether they are reasonably supported by substantial evidence considering the 

reliable and probative evidence in the record as a whole. Id. § 2001.174(2)(e); Scally v. Texas 

State Bd. of Med. Exam’rs, 351 S.W.3d 434, 440–41 (Tex. App.—Austin 2011, pet. denied).

Under this deferential standard, we presume that the Board’s order is supported by substantial 

evidence, and Walker bears the burden of proving otherwise. See Scally, 351 S.W.3d at 440–41.

“The burden is a heavy one—even showing that the evidence preponderates against the agency’s 

decision will not be enough to overcome it, if there is some reasonable basis in the record for the 

action taken by the agency.” Id. at 441 (citing Texas Health Facilities Comm’n v. Charter Med.-

Dall., Inc., 665 S.W.2d 446, 453 (Tex. 1984)). Our ultimate concern is the reasonableness of the 

agency’s order, not its correctness. Id. “The crux of a substantial evidence analysis is whether 

the agency’s factual findings are reasonable in light of the evidence from which they were 

purportedly inferred.” Granek v. Texas State Bd. of Med. Exam’rs, 172 S.W.3d 761, 778 (Tex. 
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App.—Austin 2005, no pet.) (internal quotation omitted). Therefore, if there is evidence to 

support either affirmative or negative findings on a specific matter, the decision of the agency 

must be upheld. Charter-Med. Dall., 665 S.W.2d at 453.

Whether the agency’s order satisfies the substantial-evidence standard is a 

question of law. Scally, 351 S.W.3d at 441. Thus, the trial court’s judgment that there was not 

substantial evidence supporting the Board’s final order is not entitled to deference on appeal. Id.

On appeal from the trial court’s judgment, the focus of our review, as in the trial court, is on the 

Board’s decision. Id. We review the Board’s legal conclusions for errors of law and its factual 

findings for support by substantial evidence. Id. Substantial evidence “does not mean a large 

or considerable amount of evidence, but rather such relevant evidence as a reasonable mind 

might accept as adequate to support a conclusion of fact.” Id. (citation omitted). Although 

the evidence must amount to more than a mere scintilla, “the evidence in the record may 

preponderate against the agency decision and still amount to substantial evidence.” Poole v. 

Karnack Indep. Sch. Dist., 344 S.W.3d 440, 443 (Tex. App.—Austin 2011, no pet.). Thus, we 

will sustain the agency’s decision if the evidence as a whole is such that reasonable minds could 

have reached the conclusion that the agency must have reached in order to justify its action.

Scally, 351 S.W.3d at 441.

Analysis

On this record, we conclude that ERS could reasonably have concluded that 

Decedent was intoxicated and that his intoxication substantially contributed to his death.

Therefore, its decision that Walker had not proved that she was entitled to benefits is supported 
12

by substantial evidence, and the trial court erred in concluding otherwise and reversing 

ERS’s decision.

We first address Walker’s argument that McCutcheon’s deposition testimony 

should not have been considered because he was “not qualified to render any opinion in this 

case” because he is not a doctor and could not opine as to the cause of Decedent’s death based on 

a “reasonable medical probability.” See 34 Tex. Admin. Code § 67.69(b) (2022) (Employees 

Retirement Sys., Rules of Evidence) (noting that “opinion evidence of a medical condition or 

cause must be based on reasonable medical probability and supported by objective medical 

evidence”). However, Walker did not object to McCutcheon’s testimony when it was admitted, 

and the ALJ was free to consider it. See Dyer v. Commission on Envt’l Quality, 639 S.W.3d 721, 

734 (Tex. App.—Austin 2019) (noting that evidence admitted at contested-case hearing without 

objection was properly considered by ALJ), aff’d, 646 S.W.3d 498 (Tex. 2022); Tex. Gov’t Code 

§ 2001.081 (noting that rules of evidence “as applied in a nonjury civil case in a district court of 

this state shall apply to a contested case”); Tex. R. Evid. 103(a) (stating that to preserve claim of 

error about admission of evidence, party must timely object or move to strike and state specific 

ground for objection unless it is apparent from context); see also City of San Antonio v. Pollock, 

284 S.W.3d 809, 818 (Tex. 2009) (holding that scientific opinions admitted without objection 

may be considered probative evidence “even if the basis for the opinion is unreliable”); Tex. R. 

Evid. 702 (stating that expert witness may testify “in the form of an opinion” if his specialized 

knowledge will help trier of fact understand evidence or determine fact in issue). However, 

even had Walker preserved the issue for review, we would conclude that the ALJ did not 

err in considering McCutcheon’s testimony—specifically his conclusion that Decedent was 

intoxicated—because courts routinely accept the testimony of non-M.D. forensic toxicologists to 
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establish whether a person was intoxicated. See, e.g., Haley v. State, 396 S.W.3d 756, 766 (Tex. 

App.—Houston [14th Dist.] 2013, no pet.) (affirming trial court’s ruling that toxicologist’s 

testimony was reliable where expert opined that appellant’s blood-methamphetamine level of 

0.80 mg/L was “so high” that his coordination, attention, and driving-ability must have been 

affected and contributed to accident). We thus proceed to consider the reasonableness of ERS’s 

decision based on the evidence as a whole.

The evidence showed that Decedent had high levels of methamphetamine (more 

than four times the highest possible therapeutic level—i.e., an “abuse level”) and cocaine 

metabolites in his system when he attempted to cross the busy freeway. He had used both 

illegal substances within hours of doing so. Methamphetamine and cocaine, used separately or 

combined, have various physical and mental effects, including irrational, impulsive, and risktaking behavior; hallucinations; paranoia; inability to walk straight; and incoherent thinking. 

With the high methamphetamine levels present in Decedent’s blood, McCutcheon believed that 

Decedent had lost the normal use of his physical and mental faculties. While Dr. Hastings would 

not opine on whether he believed that Decedent had lost the use of his physical and mental 

faculties, he explained that his duties do not typically entail such conclusions but merely the 

determination of the direct cause and manner of death. Both experts agreed that crossing the 

busy freeway on foot would be ill-advised and consistent with someone functioning without 

his normal use of mental faculties. Although it was her burden to prove that the intoxicationexclusion did not apply, Walker offered no evidence to explain why her husband might have 

attempted to cross the freeway or what his prior drug usage or sober behavior were like, such as 

to demonstrate, for example, that his drug use had not impaired his physical and mental faculties.
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Although it is undisputed that the immediate cause of Decedent’s death was the 

blunt-force injuries he sustained from cars, the AD&D policy excludes loss not only “caused by”

intoxication but also which is “resulting from or substantially contributed to” by intoxication.

When drug use is not the direct cause of death (such as in overdose cases), circumstantial 

evidence may be offered to prove that drug-induced impairment has substantially contributed to 

the accident that directly results in death. See Dutka ex rel. Estate of T.M. v. AIG Life Ins., 

573 F.3d 210, 214 (5th Cir. 2009) (affirming insurer’s decision that plane crash resulted “in part”

from pilot’s intoxication because circumstantial evidence, including nature of accident itself and 

absence of evidence of mechanical failures or poor visual conditions, supported such finding).

On this record, it is a reasonable inference that Decedent did not have “the normal use of [his] 

mental or physical faculties by reason of the introduction of . . . drug[s] ... into [his] body” and 

that such condition “substantially contributed” to his death. Therefore, we hold that substantial 

evidence supports ERS’s conclusion that Walker did not prove her entitlement to accidentaldeath benefits, see Scally, 351 S.W.3d at 441, and we sustain ERS’s and Minnesota Life’s

respective first issues.1

CONCLUSION

Having sustained ERS’s first issue and Minnesota Life’s sole issue, we must 

reverse the trial court’s judgment and render judgment affirming ERS’s final order.

1 We therefore need not address ERS’s second issue, in which it contends that the trial 

court violated the “separation of powers doctrine” by reversing the ERS order without first 

“finding an error in the decision” and remanding the cause to the agency to correct the error. See

Tex. R. App. P. 47.1.
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__________________________________________

Thomas J. Baker, Justice

Before Justices Goodwin, Baker, and Triana

Reversed and Rendered

Filed: September 14, 2022