In the

Court of Appeals

Second Appellate District of Texas

at Fort Worth

___________________________

No. 02-24-00024-CV

___________________________

On Appeal from the 442nd District Court

Denton County, Texas

Trial Court No. 22-8611-442

Before Birdwell, Bassel, and Womack, JJ.

Memorandum Opinion by Justice Womack

ROBERT LANE, Appellant

V.

ODLE, INC., Appellee
2

MEMORANDUM OPINION

I. INTRODUCTION

Appellant Robert Lane was injured at work and sued his employer, Appellee 

Odle, Inc., alleging that Odle had been negligent and was a workers’ compensation 

nonsubscriber under the Texas Workers’ Compensation Act (TWCA). See Tex. Lab. 

Code Ann. § 406.033 (explaining that without workers’ compensation insurance, an 

employer may not raise certain defenses to an employee’s negligence claim).

In its answer, Odle asserted that Lane had been receiving workers’ 

compensation benefits and raised as affirmative defenses Lane’s election of remedies 

and his exclusive remedy under Labor Code Section 408.001. See id. § 408.001(a) 

(“Recovery of workers’ compensation benefits is the exclusive remedy of an employee 

covered by workers’ compensation insurance coverage . . . for . . . a work-related 

injury sustained by the employee.”). Odle moved for a traditional summary judgment

under Section 408.001(a), and Lane filed a combined response and cross-motion for a 

traditional and no-evidence summary judgment in which he insisted that Odle was a 

TWCA nonsubscriber and that Odle had no evidence that its workers’ compensation 

policy had been approved by the Texas Department of Insurance (TDI).

1

1Odle amended its summary judgment motion to include its election-ofremedies defense, but Lane did not amend his response. Because we resolve this 

appeal on Odle’s exclusive-remedy affirmative defense, we need not consider Lane’s 

argument that the trial court could have impermissibly granted Odle’s amended 

motion by default based on his failure to file an amended response. Cf. Mailloux v. KJ 

Env’t Mgmt., Inc., No. 02-20-00059-CV, 2020 WL 6334176, at *2 (Tex. App.—Fort 
3

The trial court granted summary judgment for Odle and denied Lane’s crossmotion, and in his two issues on appeal, Lane complains that this was error. Because 

the record reflects that the trial court did not so err, we overrule both of Lane’s issues 

and affirm the trial court’s judgment.

II. BACKGROUND

A. Odle’s summary judgment arguments and evidence

Odle argued that the TWCA barred Lane’s negligence claim because Odle’s

uncontroverted summary judgment evidence established that Lane was its employee

and that he was covered by workers’ compensation insurance when he was injured. 

To support its argument, Odle attached Lane’s amended original petition in which 

Lane alleged—among other things—that on March 15, 2021, when he was injured, he 

had been “working in the course and scope of his employment” for Odle at a jobsite 

in Texas. Odle also attached the affidavit of Joseph Greiner, an Odle Service Center 

Manager, who averred that at the time of Lane’s injuries, Lane had worked for Odle 

and had been covered by workers’ compensation insurance under a policy issued to 

Odle’s parent company, SUEZ North America Inc., by Everest Premier Insurance 

Company (the SUEZ Policy).

Worth Oct. 29, 2020, no pet.) (mem. op.) (explaining that a summary judgment 

motion cannot be granted by default but rather “must stand or fall on [its] own 

merits” (quoting McConnell v. Southside ISD, 858 S.W.2d 337, 342 (Tex. 1993)).
4

In his affidavit, Greiner stated that Odle “is an additional named insured under 

the SUEZ Policy,” and he sponsored page 114 of the Suez Policy as Exhibit 1. He 

also listed Odle’s federal employment ID number (FEIN) and its current and 

previous business addresses in Muncie, Indiana. Exhibit 1 shows that, effective 

January 1, 2021, SUEZ North America Inc. was the SUEZ Policy’s named insured, 

with Odle Inc. (identified by its address and FEIN) as a covered location. 

Greiner further averred,

The SUEZ Policy provides workers’ compensation benefits to Odle’s 

employees in forty (40) states, including Texas, and applies to the 

workers’ compensation laws of those states. A true and correct copy of 

the Policy’s declaration page is attached to this Affidavit as Exhibit 2. 

The Policy contains numerous Texas amendatory endorsements required 

by [TDI] and the Texas Labor Code. True and correct copies of these 

amendatory endorsements are attached to this Affidavit as Exhibit 3. 

Finally, the SUEZ Policy contains a Texas classification of operations 

page establishing that SUEZ/Odle paid workers’ compensation 

insurance premiums for work-related accidents occurring in Texas, 

including accidents arising from water storage tank operations, the same 

activity Lane was performing at the time of his work-related injury. A 

true and correct copy of the Texas classification of operations/premium 

page of the SUEZ Policy is attached hereto as Exhibit 4. 

Greiner’s Exhibit 2, the SUEZ Policy’s “information page,” lists forty states 

and recites in Section 3.A., “Part One of the policy applies to the Workers 

Compensation Law of the states listed here: . . . TX . . . .” 

Greiner’s Exhibit 3, which was the insurance company’s notice to “Texas 

Workers Compensation and Employers Liability Policyholders,” states, “Pursuant to 
5

Texas Labor Code § 411.066,[2] Everest Premier Insurance Company is required to 

notify its policyholders that accident prevention services are available from Everest 

Premier Insurance Company at no additional charge” and that the insurance company 

is also “required to provide return-to-work coordination services as required by Texas 

Labor Code § 413.021 and to notify you of the availability of the return-to-work 

reimbursement program for employers under Texas Labor Code § 413.022.”3It also 

listed the contact information for TDI’s Division of Workers’ Compensation (DWC) 

and stated, 

If Everest Premier Insurance Company fails to respond to your request 

for accident prevention services or return-to-work coordination services, 

you may file a complaint with the TDI–DWC in writing at 

http://www.tdi.texas.gov or mail to:

Texas Department of Insurance 

Division of Workers’ Compensation, MS-8, 

7551 Metro Center Drive 

Austin, Texas 78744-1645.

Exhibit 3 also contained the SUEZ Policy’s “TEXAS IMPORTANT 

NOTICE,” which stated that if the insured believed there had been a legal violation 

related to the workers’ compensation policy, it should “file a complaint with [TDI]” 

2Labor Code Section 411.066 states, “Notice that accident prevention services 

are available to the policyholder from the insurance company must appear in at least 

10-point bold type on the front of each workers’ compensation insurance policy 

delivered or issued for delivery in this state.” Tex. Lab. Code Ann. § 411.066.

3Labor Code Section 413.021 addresses return-to-work coordination services. 

Tex. Lab. Code Ann. § 413.021. Labor Code Section 413.022 addresses a return-towork reimbursement program for employers. Id. § 413.022.
6

and then listed TDI’s 1-800 phone number, its website, an email address 

(ConsumerProtection@tdi.texas.gov), and a specific mailing address (MC111-1A, 

P.O. Box 149091, Austin, Texas 78714-9091). The notice page also stated that as to 

employees with claim issues, “If one of your employees has a problem with a claim, 

contact [TDI, DWC], Compliance and Investigations,” and it listed a different mailing 

address (MS-8, 7551 Metro Center Drive, Suite 100, Austin, TX 78744), a fax number 

(512-490-1030), an email address (DWC-ComplianceReview@tdi.texas.gov), and 

another 1-800 number. Exhibit 3 also contained the “Texas Waiver of Our Right to 

Recover From Others Endorsement,” which stated, “This endorsement applies only 

to the insurance provided by the policy because Texas is shown in Item 3.A. of the 

Information Page,” and it set a two-percent premium charge for the endorsement.

[CR85] Exhibit 3 also included the “Texas Sole Proprietors, Partners, Officers and 

Others Coverage Endorsement” under Labor Code Section 406.097. See id. § 406.097 

(addressing coverage of a company’s proprietors, partners, or corporate executives). 

Greiner’s Exhibit 4 contained premium information for the policy’s Texas coverage, 

effective January 1, 2021. 

Odle also attached an affidavit from Tandy Lyon, a claims examiner for 

Sedgwick Claims Management Services, Inc., which Lyon stated was “the third-party 

claims administrator for Everest Premier Insurance Company.” Lyon averred that in 

January 2021, Everest issued the SUEZ Policy with Odle as an additional insured and 

a policy term of January 1, 2021–January 1, 2022.
7

Lyon further averred that on July 19, 2022, Lane, as one of Odle’s employees, 

“made a claim for workers’ compensation benefits under the [SUEZ] Policy arising 

from work-related injuries he sustained on or about March 15, 2021”; that she was his 

case’s assigned claims examiner; that she had been “adjusting the claim on behalf of 

Everest pursuant to the terms and conditions of the [SUEZ] Policy”; and that Everest 

had paid to Lane $92,209.56 in indemnity benefits and $3,330.30 in medical benefits 

on the claim and would continue to pay him $705 per week until November 8, 2023.

Odle also attached the July 19, 2022 notice of representation Lane’s attorney 

had filed with TDI–DWC, listing Lane’s injury date (March 15, 2021) and his DWC 

claim number. The notice listed Odle as Lane’s employer and gave Odle’s Muncie, 

Indiana address. 

B. Lane’s response, cross-motion, and summary judgment evidence

In his summary judgment response and cross-motion, Lane asserted that even 

though he was receiving out-of-state insurance policy benefits, Odle could not use the 

exclusive-remedy affirmative defense because neither Odle nor SUEZ was a registered 

subscriber to the Texas Workers’ Compensation Insurance program and because Odle 

could produce no evidence that TDI had approved the SUEZ Policy. Lane relied in 

part on Labor Code definitions and on a Texas Administrative Code section that

became effective December 21, 1987. See 28 Tex. Admin. Code § 43.5 (1987) (Tex. 

Dep’t of Ins., Notice That Employer Has Become Subscriber). 
8

To his response and cross-motion, Lane attached his W-2 showing Odle’s 

FEIN; Odle’s franchise tax account status, which states “right to transact business in 

Texas: NOT ESTABLISHED” and that Odle had no effective secretary-of-state 

registration date; and the same document attached by Greiner as Exhibit 1, showing 

SUEZ North America, Inc. as the named insured, with Odle as a location and on 

which he highlighted Odle’s Muncie, Indiana address. Lane also attached various

documents from TDI:

• A print-out from the TDI–DWC website showing “no results found” when a 

search was run for Odle’s coverage as of March 15, 2021; 

• An August 29, 2022 letter from TDI to Lane’s attorney that stated, “Insurance 

Coverage Information request for SUEZ WTS USA, INC. 03/15/2021,”4and that 

“No insurance coverage information concerning the above-referenced subject was 

found,” and an August 29, 2022 TDI Certification of No Records Found, as to 

SUEZ WTS USA, INC.; and

• An August 25, 2022 letter from TDI to Lane’s attorney that stated, “Insurance 

Coverage Information request for Odle, Inc., date range of: 03/15/2021,” and that 

“No insurance coverage information concerning the above-referenced subject was 

4Like Odle, SUEZ WTS USA INC. is listed on the SUEZ Policy as an 

additional named insured. 
9

found,” and an August 25, 2022 TDI Certification of No Records Found as to 

Odle, Inc. 

Lane did not attempt to controvert the facts set out in Greiner’s and Lyon’s 

affidavits or in Greiner’s exhibits.

C. Odle’s response to Lane’s cross-motion

In response to Lane’s cross-motion, Odle complained that Lane’s arguments 

were based on his erroneous open-records request to TDI–DWC for coverage 

information on SUEZ WTS USA, Inc. instead of SUEZ North America, the named 

insured of the SUEZ Policy, under which Lane had been receiving workers’

compensation benefits. To its response, Odle attached Lane’s exhibit pertaining to 

the TDI–DWC searches for insurance coverage for SUEZ WTS USA, INC. 

(highlighting the name) and the affidavits and exhibits it had previously filed. 

III. DISCUSSION

In his two issues, Lane argues that the trial court erred by granting summary 

judgment for Odle and by denying his cross-motion, contending that although Odle 

offered some evidence of workers’ compensation coverage, it failed to discharge its 

traditional summary judgment burden because it had failed to offer any evidence that 

its policy had been “approved” by TDI and because it had failed to offer evidence 

that the insurance carrier was authorized to write workers’ compensation insurance in 

Texas. He also relies on these arguments and Odle’s failure to show that it had 
10

registered as a subscriber with TDI in support of his no-evidence complaints.5 Lane 

contends that Odle should have submitted an affidavit from the insurance company’s 

managing director or a TDI certification of the insurance company’s authority to 

provide workers’ compensation insurance in Texas, that Odle should have shown that 

it had met Administrative Code Section 43.5’s insurance coverage notice rule, and that 

Odle’s failure to do either deprived it of the exclusive-remedy affirmative defense. 

Odle responds that Lane’s arguments fail to raise an inference of no coverage 

or a fact issue on the exclusive-remedy defense’s essential elements and that Lane 

failed to meet his summary judgment burden by failing to object to or controvert 

Odle’s affidavit evidence. 

A. Standard of review

We review a summary judgment de novo. Travelers Ins. Co. v. Joachim, 

315 S.W.3d 860, 862 (Tex. 2010). We consider the evidence presented in the light 

most favorable to the nonmovant, crediting evidence favorable to the nonmovant if 

reasonable jurors could, and disregarding evidence contrary to the nonmovant unless 

reasonable jurors could not. Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 

S.W.3d 844, 848 (Tex. 2009). We indulge every reasonable inference and resolve any 

doubts in the nonmovant’s favor. 20801, Inc. v. Parker, 249 S.W.3d 392, 399 (Tex. 

5Lane also argues that he made no election of remedies by merely accepting the 

out-of-state workers’ compensation benefits. Based on our disposition of Odle’s

exclusive-remedy summary judgment ground, we do not reach these arguments. See

Tex. R. App. P. 47.1. 
11

2008). A defendant is entitled to summary judgment on an affirmative defense if the 

defendant conclusively proves all elements of that defense. Frost Nat’l Bank v. 

Fernandez, 315 S.W.3d 494, 508–09 (Tex. 2010); see Tex. R. Civ. P. 166a(b), (c). And 

“[w]hen both sides move for summary judgment and the trial court grants one motion 

and denies the other, we review the summary judgment evidence presented by both 

sides and determine all questions presented.” Mann Frankfort, 289 S.W.3d at 848. We 

should then render the judgment that the trial court should have rendered. See id.

B. The TWCA’s framework

“The Texas Legislature enacted the original Workers’ Compensation Act 

in 1913 in response to the needs of workers who, despite a growing incidence of 

industrial accidents, were increasingly being denied recovery.” In re Poly-Am., L.P., 

262 S.W.3d 337, 350 (Tex. 2008) (orig. proceeding). The TWCA “ultimately struck a 

bargain that allows employees to receive []a lower, but more certain, recovery than 

would have been possible under the common law[].” SeaBright Ins. Co. v. Lopez, 

465 S.W.3d 637, 642 (Tex. 2015); see Berkel & Co. Contractors, Inc. v. Lee, 612 S.W.3d 

280, 284 (Tex. 2020) (explaining that a central purpose of workers’ compensation is to 

promote certainty and speed in resolving work-related injury claims and to provide 

medical and disability benefits without regard to fault of either the injured worker or 

the employer); see also Tex. Mut. Ins. Co. v. Ruttiger, 381 S.W.3d 430, 439 (Tex. 2012) 

(recounting the TWCA’s history and noting that the amendments from 1989 onward 

“provide[d for] significantly more meaningful proceedings at the administrative 
12

agency level so as to reduce the number and cost of judicial trials, speed up the time 

for the entire dispute resolution process, and facilitate interlocutory payment of 

benefits pending final resolution of disputes” through “detailed procedures and 

penalties for failures of the various interested parties to comply with statutory and 

regulatory requirements”).

Today, the TWCA 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.” Tex. Pol. Subdivisions Joint Self-Ins. Fund v. Tex. Dep’t of 

Ins.–Div. of Workers’ Comp., 681 S.W.3d 491, 493 (Tex. App.—Austin 2023, pet. 

denied); see Tex. Mut. Ins. Co. v. PHI Air Med., LLC, 610 S.W.3d 839, 858 (Tex. 2020)

(Bland, J., concurring) (“The [TWCA] is a comprehensive regulatory structure for 

insurance carriers, employers, employees, health care providers, and others who claim 

benefits under a workers’ compensation policy.”). 

The TWCA’s purpose is to provide employees with certainty that their medical 

bills and lost wages will be covered if they are injured, HCBeck, Ltd. v. Rice, 

284 S.W.3d 349, 350 (Tex. 2009), but the coverage “is a two-way street,” benefitting 

both employees and employers. Waste Mgmt. of Tex., Inc. v. Stevenson, 622 S.W.3d 273, 

285 (Tex. 2021). That is, employers who cover their employees benefit from the 

exclusive-remedy protection under Labor Code Section 408.001(a), and workers who 

qualify as employees receive compensation for injuries without regard to fault or 

negligence and without spending the time and litigation expenses inherent in proving 
13

fault in a common-law tort claim. Id. The supreme court has historically construed 

the TWCA liberally in favor of coverage based on these reciprocal benefits. Id.; see

TIC Energy & Chem., Inc. v. Martin, 498 S.W.3d 68, 72, 74, 77–78 (Tex. 2016) (noting 

“decided bias” for coverage in statutory scheme).

“Unlike workers’ compensation laws in every other state, the TWCA allows 

private Texas employers to choose whether to subscribe to workers’ compensation 

insurance.” Port Elevator-Brownsville v. Casados, 358 S.W.3d 238, 241 (Tex. 2012). That 

is, there is no guarantee that an employer will provide workers’ compensation for its 

employees despite public policy’s strongly encouraging it. HCBeck, Ltd., 284 S.W.3d 

at 354. But without such coverage, the employer loses the exclusive-remedy defense. 

Id. 

1. Section 408.001(a)’s exclusive remedy

Section 408.001(a) provides that recovery of workers’ compensation benefits 

“is the exclusive remedy” against an employer for a work-related injury by “an 

employee covered by workers’ compensation insurance coverage.” Tex. Lab. Code 

Ann. § 408.001(a). The TWCA defines “employer” as “unless otherwise specified, a 

person who makes a contract of hire, employs one or more employees, and has workers’ 

compensation insurance coverage.” Id. § 401.011(18) (emphasis added). Under the TWCA, 

“workers’ compensation insurance coverage” means “an approved insurance policy to 

secure the payment of compensation.” Id. § 401.011(44)(A).
14

As pointed out by Lane, Section 401.011 does not define “approved.” See id. 

However, the supreme court has stated that “[a]mong the[ TWCA’s] requirements is 

the legislative directive that only workers’ compensation policies approved by [TDI] are 

available in Texas.” Fairfield Ins. Co. v. Stephens Martin Paving, LP, 246 S.W.3d 653, 658 

(Tex. 2008) (emphasis added). “These state-approved policies are contracts between 

private insurance companies and employers; the employees of subscribing employers 

are the beneficiaries, and health care providers claim direct benefits under the policy.” 

Tex. Mut. Ins. Co., 610 S.W.3d at 859 n.26 (Bland, J., concurring) (citing Tex. Lab. 

Code Ann. §§ 406.003, .051, 408.001); see Beldon Roofing & Remodeling Co. v. San Antonio 

Water Sys., 898 S.W.2d 351, 354 (Tex. App.—San Antonio 1995, writ denied) (stating 

that the “workers’ compensation insurance coverage” definition under Section 

401.011(44) restricts the methods by which an employer may obtain such coverage).

Labor Code Section 401.011 defines “insurance carrier” as, among other things, 

an insurance company, and it defines “insurance company” as “a person authorized 

and admitted by [TDI] to do insurance business in this state under a certificate of 

authority that includes authorization to write workers’ compensation insurance.” Tex. 

Lab. Code Ann. § 401.011(27)–(28); see id. § 406.003 (“An employer may obtain 

workers’ compensation insurance coverage through a licensed insurance company or 

through self-insurance as provided by this subtitle.”); see also Tex. Ins. Code Ann. 

§ 2052.001 (defining “insurance company,” in relation to workers’ compensation, as

an entity “authorized to engage in the business of workers’ compensation insurance in 
15

this state”). Labor Code Section 406.051(b) requires an insurance company 

contracting to provide workers’ compensation insurance under the TWCA to write 

the coverage contract “on a policy and endorsements approved by [TDI].” Tex. Lab. 

Code Ann. § 406.051(a)–(b); see Tex. Ins. Code Ann. § 2052.002(a)–(b) (requiring 

standard policy forms and a uniform policy for workers’ compensation insurance and 

stating that “an insurance company may not use a form other than one prescribed 

under this section unless the form is an endorsement: (1) appropriate to the 

company’s plan of operation; and (2) submitted to and approved by [TDI]”). TDI is 

supposed to coordinate with the appropriate agencies of other states to share 

information regarding an employer who obtains all-states coverage and to ensure that 

TDI knows about an employer who obtains all-states coverage in another state but 

who fails to file notice with TDI.6 Tex. Lab. Code Ann. § 406.053. 

2. Notifications and administrative violations

Under Labor Code Section 406.004(a), an employer who does not obtain 

workers’ compensation insurance coverage “shall notify the division in writing, in the 

time and as prescribed by commissioner rule, that the employer elects not to obtain 

coverage.” Id. § 406.004(a). Under Section 406.006(a), an insurance company from 

6Odle correctly points out that Lane’s reference in his appellate brief to his 

TDI–DWC website searches for SUEZ North America and SUEZ NA cannot be 

considered in this appeal. Lane acknowledges that these searches were conducted 

“too late to make it into the record.” We must determine a case based on the record 

as filed. See Murphy v. Leveille, No. 2-08-130-CV, 2009 WL 2619857, at *2 n.3 (Tex. 

App.—Fort Worth Aug. 26, 2009, no pet.) (mem. op.).
16

which an employer has obtained workers’ compensation insurance coverage “shall file 

notice of the coverage and claim administration contact information with the division 

not later than the 10th day after the date on which the coverage or claim 

administration agreement takes effect, unless the commissioner adopts a rule 

establishing a later date for filing.” Id. § 406.006(a). The required notice “shall be 

filed with [DWC] in accordance with Section 406.009,” which requires DWC to 

collect and maintain this information and to monitor compliance. Id. §§ 406.006(b), 

.009(a), (d).

As last updated December 21, 1987, notice that an employer has become a 

subscriber “shall be filed with the board’s Austin office by certified mail or in person 

within 30 days of the effective date of the policy and the notice must be completed in 

detail,” with—among other things—the employer’s FEIN, the insurance policy 

number, the policy’s effective date, and the insurance company’s complete name. 

28 Tex. Admin. Code § 43.5. Likewise, insurance carriers are also required to notify 

DWC of workers’ compensation insurance coverage. Id. § 110.1(d)–(e) (2013) (Tex. 

Dep’t of Ins., Insurance Carrier Requirements for Notifying the Division of Insurance 

Coverage).7 

7Neither party has addressed the fact that, under various Administrative Code 

provisions, Everest Premier Insurance Company, which issued the SUEZ Policy,

could have notified TDI about the companies—SUEZ North America Inc. and Odle 

among them—for which it provided workers’ compensation insurance coverage.
17

Chapter 415 of the Labor Code governs administrative violations by employers, 

insurance carriers, and employees, among others. See Tex. Lab. Code Ann. 

§§ 415.001–.008. “A reference in [the Labor Code] or other law . . . to a particular 

class of violation, administrative violation, or penalty shall be construed as a reference 

to an administrative penalty,” which may not exceed $25,000 per day per occurrence;

each day of noncompliance constitutes a separate violation. Id. § 415.025.

The administrative-violation scheme is part of the legislature’s overarching 

framework to implement the workers’ compensation system’s goals. See id.

§ 402.021(a)(1)–(4). In implementing these goals, the legislature has expressed its 

intent that the state workers’ compensation system “promptly detect and 

appropriately address acts or practices of noncompliance with [the TWCA] and rules 

adopted” thereunder. Id. § 402.021(b)(7); see Ruttiger, 381 S.W.3d at 442 (“A carrier’s 

failure to comply with the Act’s requirements, deadlines, and procedures is not 

without consequences . . . . provid[ing, among other things] that a carrier or its 

representative commits an administrative violation for any of twenty-two specified 

actions . . . .”). 

“The original creation of, continued existence of, and amendments to update 

and improve the workers’ compensation system are within the [l]egislative function of 

establishing public policy.” Ruttiger, 381 S.W.3d at 450. A “key” part of the system 

includes “the penalties imposed for failing to comply with legislatively mandated rules, 

and the procedures for imposing such penalties.” Id.; see In re Accident Fund Gen. Ins. 
18

Co., 543 S.W.3d 750, 754 (Tex. 2017) (orig. proceeding) (“[DWC] is charged with 

ensuring all system participants, including carriers, comply with the rules, and when 

participants abuse the process, administrative penalties are available.”).8

An employer commits an administrative violation if, among other things, it 

does not notify DWC in writing on the agency-prescribed forms that it has elected not 

to obtain coverage, Tex. Lab. Code Ann. § 406.004(a)–(b), (e), or if it does not notify 

each employee about whether it has workers’ compensation insurance coverage, id.

§ 406.005(a)–(e). See also id. § 408.063(a)–(c) (failing to timely file wage statement after 

notice of injury), § 409.006(a)–(c), (e) (failing to comply with injury record-keeping 

requirements), § 411.032 (failing to meet certain reporting requirements). 

Likewise, a workers’ compensation insurer may commit a variety of 

administrative violations, including failure to timely file notice of coverage and claim 

administration contact information with DWC, see id. § 406.006(a)–(c), failure to 

provide claims service as required by the TWCA or to designate a representative to act 

as its agent before DWC, see id. §§ 406.010(a)–(b), (d), .011(a)–(b), or failure to 

maintain or provide TWCA’s required accident prevention services or to use those 

services in a reasonable manner to prevent injury to its policyholders’ employees, see

8

In addition to insurers and employers, administrative violations apply to 

general contractors, see Tex. Lab. Code Ann. § 406.123(g), self-insurers, see id.

§§ 407.067, .082, .104, and health care providers, see id. § 413.042. And any party may 

commit an administrative violation during the adjudication of disputes between the 

employee, employer, or insurer. See id. §§ 410.028(c), .112–.113, .156, .208(e).
19

id. § 411.068. See also id. §§ 409.021(a), (e), .022(c), .023(a), (c), .024(a)–(b) (addressing 

administrative violations relating to benefits payments). The TWCA also “provides 

the exclusive procedures and remedies for claims alleging that a workers’ 

compensation carrier has improperly investigated, handled, or settled a worker[’s] 

claim for benefits.” Accident Fund Gen. Ins. Co., 543 S.W.3d at 752.

Both employers and insurers commit an administrative violation if they fail to 

identify or confirm coverage status and claim administration contact information. 

Tex. Lab. Code Ann. § 406.009(d)–(e). All the administrative violations pertaining to 

coverage elections are subject to Labor Code Chapter 415’s administrative penalties. 

Id. § 406.012. The Labor Code also sets out some criminal penalties, including a Class 

A misdemeanor or state jail felony for fraudulently obtaining workers’ compensation 

insurance coverage. Id. § 418.002 (stating offense is a misdemeanor if the premium 

avoided is less than $2,500 and a state jail felony if the premium avoided is $2,500 or 

more); see id. §§ 411.034(a)–(d), .105, 413.043(a)–(b) (other misdemeanor offenses), 

§ 414.006(a) (providing that DWC may refer cases to other agencies for further 

investigation or institution of appropriate proceedings). 

Unless otherwise stated, no Labor Code administrative violations and penalties 

provide a private cause of action, and allowing parties to pursue remedies that 

circumvent DWC’s exclusive procedures and remedies in the first instance “would 

undermine the workers’ compensation system’s careful benefits-determination and 

claims-resolution processes.” Mouton v. Houston ISD, No. 01-22-00205-CV, 2023 WL 
20

4065602, at *6 (Tex. App.—Houston [1st Dist.] June 20, 2023, pet. denied) (mem. 

op.) (citing Accident Fund Gen. Ins. Co., 543 S.W.3d at 753). 

DWC may seek sanctions when an insurer fails to accurately pay benefits and 

fails to timely or accurately report claim data. Tex. Pol. Subdivisions Joint Self-Ins. Fund, 

681 S.W.3d at 493–94; see also In re Old Republic Risk Mgmt., No. 12-19-00144-CV, 2019 

WL 2462486, at *3 (Tex. App.—Tyler June 12, 2019, orig. proceeding) (mem. op.) 

(“For claims arising out of the claims-settlement process, [the TWCA,] with its 

definitions, detailed procedures, and dispute resolution process, demonstrates 

legislative intent for there to be no alternative remedies.”). That is, the workers’

compensation system “creates a level of certainty for employees by ensuring that an 

employer’s violation of the State’s various administrative rules and regulations will not 

deprive workers of the benefits under the system,” and the administrative and civil 

penalties will not cause a company to forfeit its “subscriber” status. Exxonmobil Corp. 

v. Kirkendall, 151 S.W.3d 594, 601 (Tex. App.—San Antonio 2004, pet. denied) (op. on 

reh’g). 

As potentially applicable here, “[a] person commits an administrative violation 

if the person . . . intentionally and knowingly obtains or maintains: . . . workers’ 

compensation insurance from an insurer that is not authorized to engage in business 

in this state.” Tex. Ins. Code Ann. § 2051.152(a)(2)(A). The penalty attached to this 

administrative violation is “not to exceed $5,000,” and each day such an 

administrative violation occurs or continues is a separate violation. Id. § 2051.152(b)–
21

(c). Nothing in the record shows that Lane has requested the initiation of 

administrative-violation proceedings as to Odle or its insurer. Cf. Tex. Lab. Code 

Ann. § 415.031 (“Any person may request the initiation of administrative violation 

proceedings by filing a written allegation with [DWC].”).

Some of our sister courts have addressed the interplay between administrative 

violations and the TWCA’s employer protections. See Becon Constr. Co. v. Alonso, 

444 S.W.3d 824, 833 (Tex. App.—Beaumont 2014, pet. denied); Hand & Wrist Ctr. of 

Hous., P.A. v. SGS Control Servs., Inc., 409 S.W.3d 743, 751 (Tex. App.—Houston [1st 

Dist.] 2013, no pet.). Specifically, committing an administrative violation does not 

affect an employer’s ability to satisfy the employer element of the exclusive-remedy 

defense. See Berry Contracting, L.P. v. Mann, 549 S.W.3d 314, 324 (Tex. App.—Corpus 

Christi–Edinburg 2018, pet. denied) (holding that Section 406.123(f)’s requirement 

that a general contractor file a coverage agreement with a workers’ compensation 

insurance carrier—the failure of which constituted an administrative violation—did 

not affect its ability to satisfy the exclusive-remedy’s employer element).

In Becon, the employees argued that because the general workplace plan had not 

complied with certain TDI administrative rules, their employers could not rely on 

TWCA’s exclusive-remedy defense. 444 S.W.3d at 833. The employers replied that 

TDI’s administrative rules were directory, not mandatory, and that TDI had not 

created an administrative penalty stripping entities of the exclusive-remedy defense 

provided by the legislature in the TWCA for violation of the regulations. Id. The 
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court observed that because neither the TWCA nor the administrative rules described 

a penalty for violating those rules, the employees’ interpretation would discourage 

employer participation in the workers’ compensation scheme and “might prevent 

some employees who would otherwise be covered by insurance from being covered 

under these types of policies due to the violation of regulations.” Id. The court 

concluded that the proper penalty for those administrative violations should be left to 

TDI when it did not appear “that the [l]egislature intended for these types of 

violations to strip employers of defenses or to cause employees to lose the benefits of 

their coverage.” Id.; see ExxonMobil Corp. v. Alvarez, No. 14-22-00863-CV, 2024 WL 

847701, at *8 (Tex. App.—Houston [14th Dist.] Feb. 29, 2024, no pet.) (mem. op.) 

(relying on Becon for same proposition).

In Hand & Wrist Center, a medical-provider case, the court noted that Labor 

Code Section 409.005, which required an employer to notify its insurance carrier of 

employee injuries requiring absence from work for more than one day, did “not 

provide that if the employer fails to comply it has forfeited its protections under the 

[TWCA].” 409 S.W.3d at 750. Instead, such a failure is an administrative violation 

that allows DWC to assess administrative penalties. Id. at 751 (citing Tex. Lab. Code 

Ann. § 409.005(f)). In reaching this conclusion, the court relied on Regalado v. H.E. 

Butt Grocery Co., 863 S.W.2d 107, 110 (Tex. App.—San Antonio 1993, no writ), and 

Wesby v. Act Pipe & Supply, Inc., 199 S.W.3d 614, 618 (Tex. App.—Dallas 2006, no 

pet.), both of which construed an earlier version of the TWCA to conclude that the 
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statutory scheme is not one of waiver when it explicitly provides for noncompliance 

penalties. Hand & Wrist Center, 409 S.W.3d at 750–51; see Regalado, 863 S.W.2d at 110 

(“We believe the legislature intended to assure compliance with the notice 

requirements through the assessment of a fine, not through the harsher penalty of 

waiver.”).

C. Application

To prevail on the affirmative defense of Section 408.001(a)’s exclusive remedy, 

Odle had to establish that Lane (1) was its employee at the time of the work-related 

injury and (2) was covered by its workers’ compensation insurance policy. See Waste 

Mgmt. of Tex., Inc., 622 S.W.3d at 277; see also Grant v. Wind Turbine & Energy Cables 

Corp., No. 02-21-00036-CV, 2022 WL 2840142, at *9 (Tex. App.—Fort Worth 

July 21, 2022, no pet.) (mem. op.) (holding that when the evidence conclusively 

established that the plaintiff was an “employee” under the TWCA and that the 

company had workers’ compensation coverage, the trial court properly granted 

summary judgment for the company).

To support its summary judgment motion on the exclusive-remedy affirmative 

defense, Odle attached Lane’s amended original petition in which Lane alleged that he 

was Odle’s employee at the time of the work-related injury and attached the affidavit 

of Greiner, who averred that Lane had been injured while working for Odle and that 

Lane was covered by the SUEZ Policy. 
24

In addition to Greiner’s exhibits showing workers’ compensation insurance 

coverage that directly referenced Texas and some of Texas’s Labor Code provisions,

as well as providing the contact information for TDI and DWC, Odle attached Lyon’s 

affidavit attesting to the benefits Lane had received under the policy. See Tex. R. Civ. 

P. 166a(c), (f); Guevara v. WCA Waste Corp., No. 01-15-01075-CV, 2017 WL 1483320, 

at *5 (Tex. App.—Houston [1st Dist.] Apr. 25, 2017, pet. dism’d) (mem. op.) (“Waste 

Corp. and Gonzales were not required to produce the actual [workers’ compensation]

policy to prove Waste Corp. had coverage; they were permitted to prove Waste 

Corp.’s subscriber status with other evidence, such as affidavits.”); Baker v. Cook 

Children’s Physician Network, No. 2-07-174-CV, 2008 WL 553712, at *3 (Tex. App.—

Fort Worth Feb. 28, 2008, pet. denied) (mem. op.) (holding affidavit of employer’s 

risk-management director, which stated that the company was covered by a workers’

compensation policy when the employee worked for the company, was sufficient to 

carry the employer’s burden to establish that it was a workers’ compensation 

subscriber); see also Cox v. Waste Mgmt. of Tex., Inc., 300 S.W.3d 424, 428, 440 (Tex. 

App.—Fort Worth 2009, pet. denied) (“[T]he evidence submitted by [the employer] 

(through an affidavit signed by [its human-resources manager]) establishes that [the 

company] carried workers’ compensation insurance during [the plaintiff’s] 

employment and that [the plaintiff] was covered under the insurance.”). 

This evidence established Odle’s affirmative defense and defeated Lane’s noevidence grounds because, to meet the affirmative defense’s elements, Odle did not 
25

have to show that the SUEZ Policy had been approved by TDI or that Odle or its 

parent company were registered with DWC. See Baker, 2008 WL 553712, at *3; see also

Martinez v. H.B. Zachry Co., 976 S.W.2d 746, 748 (Tex. App.—Houston [1st Dist.] 

1998, pet. denied) (holding evidence sufficient to support summary judgment when 

company’s claims manager swore in his affidavit that the document attached thereto 

was a true and correct copy of the workers’ compensation policy’s information page 

and that the policy covered the plaintiff at the time of his accident); see also Webester v. 

GSE Lining Tech. LLC, No. 14-16-00841-CV, 2017 WL 6543441, at *7 (Tex. App.—

Houston [14th Dist.] Dec. 21, 2017, pet. denied) (mem. op.) (holding that company’s 

affidavit and information page of its workers’ compensation insurance policy for the 

relevant time frame were sufficient to establish that the company was a workers’ 

compensation insurance subscriber).

After Odle established its affirmative defense, the summary judgment burden 

shifted to Lane to raise a genuine issue of material fact as to workers’ compensation 

coverage. See Grant, 2022 WL 2840142, at *8. Instead of responding to Odle’s 

summary judgment motion by attaching evidence to raise a genuine issue of material 

fact as to coverage, Lane acknowledged having received the policy’s benefits but—as 

noted above—complained that there was no evidence that the policy had been 

approved by TDI or that Odle or its parent company had registered with DWC as 

workers’ compensation subscribers—neither of which, again—was an element of 

Odle’s affirmative defense, and both of which presented only potential administrative 
26

violations under the TWCA. See Baker, 2008 WL 553712, at *3 (“Cook’s summary 

judgment evidence—Testa’s affidavit—absent controverting summary judgment 

evidence, conclusively established Cook’s subscriber status at the time of the incident 

at issue.”); see also Warnke v. Nabors Drilling USA, L.P., 358 S.W.3d 338, 343–44 & n.5

(Tex. App.—Houston [1st Dist.] 2011, no pet.) (op. on reh’g) (stating, in a different 

statutory-based summary judgment challenge, that “[c]ourts in this state, including this 

court, have held that the [Section 408.001(a)] exclusivity bar does not hinge on 

whether notice has been provided to the employee” and noting that failure to give 

such notice constituted an administrative violation punishable by a fine); Kirkendall, 

151 S.W.3d at 600 (“[W]hile Mobil’s plan most likely violates an administrative rule, 

nothing in Texas law provides that this violation causes an employer to forfeit its 

subscriber status.”).9 

9On appeal, Lane lists several cases to “illustrate the evidence necessary to 

establish [TDI] approval,” citing Warnke, Kirkendall, and McClelland v. Gronwaldt, No. 

09-06-566-CV, 2007 WL 4681509, at *2 (Tex. App.—Beaumont Jan. 10, 2008, pet. 

denied) (mem. op.). But Lane ignores that under Rule of Civil Procedure 

166a(c) ̧summary judgment evidence may consist of, among other things, supporting 

affidavits, and that “[a] summary judgment may be based on uncontroverted 

testimonial evidence of an interested witness . . . if the evidence is clear, positive and 

direct, otherwise credible and free from contradictions and inconsistencies, and could 

have been readily controverted.” Tex. R. Civ. P. 166a(c). Notwithstanding Lane’s 

evidentiary preferences, Odle’s uncontroverted summary judgment evidence showed a 

workers’ compensation policy referencing Texas coverage and showing payment of 

the policy’s benefits to Lane, and Lane brought forth no evidence to raise a genuine 

fact issue about the policy’s existence, coverage, or validity under Texas law. See

McClelland, 2007 WL 4681509, at *3 (pointing out that even if a company’s plan “most 

likely violates an administrative rule, nothing in Texas law provides that this violation 

causes an employer to forfeit its subscriber status”).
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Lane did not challenge Odle’s summary judgment evidence showing that Odle 

had provided workers’ compensation insurance to him at the time of the accident or 

that he had received benefits from that insurance coverage. See Warnke, 358 S.W.3d at 

344;

10 see also Martinez, 976 S.W.2d at 748 (“Martinez put on no summary judgment 

evidence to show that Zachry was not a subscriber at the time of the accident.”).

Further, Lane searched for the wrong company name on TDI–DWC’s website, 

and the evidence that he attached to support the traditional portion of his crossmotion showed that there was no coverage as to SUEZ WTS USA, INC., not SUEZ 

North America Inc., Odle’s parent company, and thereby failed to raise a fact issue as 

to Odle’s coverage under the SUEZ Policy. 

Because Odle’s uncontroverted summary judgment evidence conclusively 

established that Lane was Odle’s employee and that he was covered by Odle’s

workers’ compensation insurance policy at the time of his work-related injuries, the 

10Lane did not challenge Greiner’s affidavit testimony about the SUEZ Policy’s 

Texas coverage, and such affidavit testimony has been held sufficient to support 

summary judgment on the TWCA’s exclusive-remedy provision. See Guevara, 

2017 WL 1483320, at *5–6 (holding employer satisfied its burden when it presented 

an affidavit averring to coverage and plaintiff failed to present rebutting evidence); see 

also Trevino v. Jalapeno Tree Operating, LLC, No. 05-23-00086-CV, 2024 WL 702290, at 

*2 (Tex. App.—Dallas Feb. 21, 2024, no pet.) (mem. op.) (“The policy listing Jalapeno 

Tree as an additional insured is sufficient summary judgment proof of workers’ 

compensation coverage.”); AmeriGas Propane, L.P. v. Aboytes-Muniz, No. 09-18-00122-

CV, 2019 WL 2127750, at *8–9 (Tex. App.—Beaumont May 16, 2019, pet. denied)

(mem. op.) (holding undisputed evidence of payments to injured worker made under 

workers’ compensation policy shifted burden to worker to disprove or raise a fact 

issue on the company’s exclusive-remedy defense).
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trial court did not err by granting summary judgment for Odle or by denying Lane’s

cross-motion. We overrule both of Lane’s issues without reaching his arguments on 

Odle’s election-of-remedies summary judgment ground. See Tex. R. App. P. 47.1.

IV. CONCLUSION

Having overruled both of Lane’s issues, we affirm the trial court’s judgment.

/s/ Dana Womack

Dana Womack

Justice

Delivered: August 22, 2024