No. 03-14-00808-CV

IN THE 3RD COURT OF APPEALS

AUSTIN, TEXAS

Rosendo Morales, Appellant

V.

Texas Department of Insurance-Division of Workers’ 

Compensation and Commissioner Ryan Brannan, in his 

official capacity, Appellees

On appeal from the 146th District Court of Bell County, Texas; 

Cause No. 269,135-B, the Honorable Jack Weldon Jones Presiding

ROSENDO MORALES APPELLANT’S REPLY BRIEF 

BRADLEY DEAN McCLELLAN

State Bar No. 13395980

Richard Pena

Law Offices of Richard Pena, P.C

State Bar No. 00000073

Law Offices of Richard Pena, P.C.

1701 Directors Blvd., Suite 110

Austin, Texas 78744

Brad.McClellan@yahoo.com

(512) 327-6884 telephone

(512) 327-8354 facsimile

Counsel for Appellant

September 8, 2015 

Oral Argument Requested 

ACCEPTED

03-14-00808-CV

6830720

THIRD COURT OF APPEALS

AUSTIN, TEXAS

9/8/2015 3:36:21 PM

JEFFREY D. KYLE

CLERK

 FILED IN 3rd COURT OF APPEALS AUSTIN, TEXAS 9/8/2015 3:36:21 PM JEFFREY D. KYLE Clerk
No. 03-14-00808-CV Rosendo Morales Appellant’s Reply Brief

ii

TABLE OF CONTENTS

TABLE OF AUTHORITIES ivvi

ISSUES PRESENTED ix

ROSENDO MORALES APPELLANT’S REPLY BRIEF 1

SUMMARY OF ARGUMENT 2

ARGUMENT & AUTHORITIES 6

 Issue No. 1: Whether the District Court has jurisdiction to determine a 

declaratory judgment action brought to properly construe, interpret, and 

enforce applicable Texas statutes against the state agency and the head of 

the state agency after administrative remedies have been exhausted and a 

live controversy remains with allegations that the state defendants have 

violated the statutes in question by failing to properly apply the law? 6

CONCLUSION 13

PRAYER 14

CERTIFICATE OF COMPLIANCE 15

CERTIFICATE OF SERVICE 15
No. 03-14-00808-CV Rosendo Morales Appellant’s Reply Brief

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INDEX OF AUTHORITIES

Cases

City of El Paso v. Heinrich, 284 S.W.3d 366, 372 (Tex. 2009)...............................7

City of Ingleside v. City of Corpus Christi, Case No 14-0548, 2015 Tex. LEXIS 

685, 58 Tex. Sup. J. 1519 (Tex. July 24, 2015)........................................................3

Patel v. Tex. Dep't of Licensing & Regulation, Case No. 12-0657, ___S.W.3d___, 

58 Tex. Sup. J. 1298, 2015 Tex. LEXIS 617, *11-12 (Tex. June 26, 2015)

........................................................................................................................................passim

SWEPI L.P. v. R.R. Comm 'n, 314 S.W.3d 253, 268 (Tex. App--Austin 2010, 

pet. denied)........................................................................................................................ 10

Tex. Dep’t of Ins. v. Lumbermens Mut. Cas. Co., 212 S.W.3d 870 (Tex. App.—

Austin 2006, pet. denied)................................................................................................5

Tex. Dep’t of State Health Servs. v. Balquinta, 429 S.W.3d 726, 747 (Tex. 

App.—Austin 2014, pet. dism’d)............................................................................... 10

Tex. Workers' Comp. Comm'n v. Garcia, 893 S.W.2d 504, 517-18 (Tex. 1995)

................................................................................................................................................. 11

Statutes

Texas Labor Code § 410.255........................................................................................... 13
No. 03-14-00808-CV Rosendo Morales Appellant’s Reply Brief

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ISSUE PRESENTED

Issue No. 1: Whether the District Court has jurisdiction to determine a 

declaratory judgment action brought to properly construe, interpret, and 

enforce applicable Texas statutes against the state agency and the head of 

the state agency after administrative remedies have been exhausted and a 

live controversy remains with allegations that the state defendants have 

violated the statutes in question by failing to properly apply the law?
No. 03-14-00808-CV Rosendo Morales Appellant’s Reply Brief

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No. 03-14-00808-CV

IN THE 3RD COURT OF APPEALS

AUSTIN, TEXAS

Rosendo Morales, Appellant

V.

Texas Department of Insurance-Division of Workers’ 

Compensation and Commissioner Ryan Brannan, in his official 

capacity, Appellees

On appeal from the 146th District Court of Bell County, Texas; 

Cause No. 269,135-B, the Honorable Jack Weldon Jones 

Presiding 

ROSENDO MORALES APPELLANT’S REPLY BRIEF

To the Honorable Justices of the 3rd Court of Appeals:

Courts are the last check on the administrative agencies and agency 

officers not following the laws adopted by the Legislature. An administrative 

agency does not get the last word on what the law requires and whether the 

agency is properly enforcing, applying, and complying with the law’s 

requirements. The Judicial Branch ultimately determines the law and 

enforces proper compliance with the laws in the State of Texas and in the 

United States of America.
No. 03-14-00808-CV Rosendo Morales Appellant’s Reply Brief

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SUMMARY OF THE ARGUMENT

Subsequent to the initial Appellant’s brief, the Texas Supreme Court in 

two very recent decisions in June and July of this year Patel and Ingleside v. 

Corpus Christi. The Appellees appear to reassert legal arguments the 

Supreme Court rejected in Patel. Patel allowed for declaratory judgment 

against a state agency and explained the Heinrich, DeQueen, and Sefzik

opinions allowed for declarations to require compliance with statutes. The 

Ingelside v. Corpus Christi case recently determined the interpretation of city 

law’s presented a justiciable controversy for a declaratory judgment. In Patel, 

the Texas Supreme Court rejected a state agency’s attempt to invoke 

immunity, standing, and redundancy (as all three argued in this matter) to 

avoid a declaratory judgment action to require compliance with the law by a 

state agency and explained suits to require statutory compliance are allowed. 

In the Patel decision issued on June 25th, the Texas Supreme Court 

stated: “In Heinrich we decided that sovereign immunity does not prohibit 

suits brought to require state officials to comply with statutory or

constitutional provisions. 284 S.W.3d at 372.” Patel v. Tex. Dep't of 

Licensing & Regulation, Case No. 12-0657, ___S.W.3d___, 58 Tex. Sup. J. 1298, 

2015 Tex. LEXIS 617, *11-12 (Tex. June 26, 2015). 
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In the City of Ingleside v. City of Corpus Christi, Case No 14-0548, 2015 

Tex. LEXIS 685, 58 Tex. Sup. J. 1519 (Tex. July 24, 2015), the Texas Supreme

Court explained: “Interpreting and applying an ordinance is also well within 

judicial authority. Cf. City of Fort Worth v. Gulf Ref. Co., 125 Tex. 512, 83 S.W.2d 

610, 617 (Tex. 1935) (construing and applying several ordinances regulating 

filling station businesses).” Id. at 2015 Tex. LEXIS 685, *8-9. The 

interpretation and application of laws are well within judicial authority even 

to bind governmental entities.

The state Appellee’s in part assert: “the UDJA does not waive the State’s 

immunity for claims seeking an interpretation of, or a declaration of rights 

under, a statute” and that Mr. Morales is “requesting sweeping declarations 

that go beyond any present or imminent dispute.” Appellee’s Brief p. 6,7. The

Texas Supreme Court in the Patel decision rejected these arguments like 

DeQueen did previously, and unquestionably this is a present and imminent 

dispute with exhausted administrative remedies (beyond the Patel dispute 

level of threatened agency action) over whether a four level cervical neck 

fusion is rated a 5% (“a minor impairment” see p. 110 of the AMA Guides

attached as to Appellant’s Brief) or a 27% for major impairment to the 

cervical spine from the permanently fused spinal segments.
No. 03-14-00808-CV Rosendo Morales Appellant’s Reply Brief

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The final decision and order of the Texas Department of InsuranceDivision of Workers’ Compensation and the DWC Commissioner Brannan, 

collectively the DWC, ignores pre-maximum medical improvement spinal 

surgeries—and not just a minor spinal surgery, but a four level cervical neck 

fusion. The law does not allow such in assigning permanent impairment 

ratings which are determined based upon a worker’s condition at maximum 

medical improvement. 

 The DWC appellants’ argue baldly and erroneously that the UDJA: “At 

most, it waives immunity for challenges ‘to the validity’ of a statute.” DWC 

Appellee’s Brief at p. 9, citing to Patel. The Texas Supreme Court in Patel

recently again disagreed with this statement by explaining: “In Heinrich we 

decided that sovereign immunity does not prohibit suits brought to 

require state officials to comply with statutory or constitutional 

provisions. 284 S.W.3d at 372.” (Emphasis added.) Patel v. Tex. Dep't of 

Licensing & Regulation, Case No. 12-0657, ___S.W.3d___, 58 Tex. Sup. J. 1298, 

2015 Tex. LEXIS 617, *11-12 (Tex. June 26, 2015). The Court made clear 

statutory compliance or constitutional compliance are proper waivers of 

sovereign immunity without addressing where the state agency actually joins 

a lawsuit and seeks legal interpretations such as here.
No. 03-14-00808-CV Rosendo Morales Appellant’s Reply Brief

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Again, Appellant is not seeking liability damages from the state 

Defendants. Appellant is seeking to enforce the statutory rights violated by 

the Appellees and failed to be enforced and properly followed by the 

Appellees.

 This Court previously allowed a declaratory judgment action against 

the DWC in Tex. Dep’t of Ins. v. Lumbermens Mut. Cas. Co., 212 S.W.3d 870 (Tex. 

App.—Austin 2006, pet. denied), which resulted in erroneous applications of 

the law from dicta which the DWC and TMIC have not allowed impairment 

ratings to consider spinal surgeries even occurring before maximum medical 

improvement. Workers who undergo insurance carrier approved and paid for 

major spinal fusion surgeries occurring before the worker’s recovery 

stabilizes at maximum medical improvement must have such surgeries and 

the effects of such surgeries considered and rated when impairment ratings 

are assigned under the Texas Workers’ Compensation Act, and the DWC and 

the DWC Commissioner must follow the law. 

The Judicial Branch of Texas is still the proper and last avenue to seek 

compliance with adopted state laws. 
No. 03-14-00808-CV Rosendo Morales Appellant’s Reply Brief

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REPLY ARGUMENT & AUTHORITY

Issue No. 1: Whether the District Court has jurisdiction to determine a 

declaratory judgment action brought to properly construe, interpret, 

and enforce applicable Texas statutes against the state agency and the 

head of the state agency after administrative remedies have been 

exhausted and a live controversy remains with allegations that the state 

defendants have violated the statutes in question by failing to properly 

apply the law?

The DWC and the Commissioner appear to allege declaratory relief is not 

available at all against the DWC and the Commissioner except for The DWC 

argues (Appellees’ Brief p. 9):

Morales pursued declaratory relief “to properly construe, interpret, and

enforce applicable Texas statutes against the state agency and the head of

the state agency.” Br. of Appellant ix (Issue Presented); see also, e.g., id. at

3 (“This case involves a proper request for declaratory judgment with a

challenge to the DWC Defendants [sic] improper enforcement of the

law.”). The UDJA does not waive immunity for these claims. At most, it

waives immunity for challenges to “the validity of” a statute.

The Texas Supreme Court in Patel rejected this similar argument of another 

state agency and emphasized statutory compliance is a proper use of 

declaratory judgment actions. 

1. The Patel Decision Rejected State’s Arguments of Immunity, 

Redundancy, Ripeness and Standing.

Courts should wonder what so concerns the state over the proper 

enforcement of statutory terms, and why the state agency and state official 
No. 03-14-00808-CV Rosendo Morales Appellant’s Reply Brief

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want to avoid proper statutory application, interpretation and enforcement. 

The Texas Supreme Court just a couple of months ago in Patel v. Tex. Dep't of 

Licensing & Regulation, Case No. 12-0657, ___S.W.3d___, 58 Tex. Sup. J. 1298, 

2015 Tex. LEXIS 617, *11-12 (Tex. June 26, 2015) rejected analogous 

arguments from a state agency attempting to claim four basic obstacles also 

asserted in this matter as to why the plea to the jurisdiction of a state agency 

should be granted: immunity, redundancy, ripeness and standing. In Patel, the 

Court emphasized:

In Heinrich we decided that sovereign immunity does not prohibit 

suits brought to require state officials to comply with statutory or 

constitutional provisions.

Patel v. Tex. Dep't of Licensing & Regulation, 2015 Tex. LEXIS 617, *10, 58 Tex. 

Sup. J. 1298 (Tex. 2015).

The Texas Supreme Court explained the rationale that from Heinrich

that “it is clear that suits to require state officials to comply with 

statutory or constitutional provisions are not prohibited by sovereign 

immunity.” City of El Paso v. Heinrich, 284 S.W.3d 366, 372 (Tex. 2009). This 

matter involves a statutory challenge in part that the state agency and state 

officials have failed to comply with statutory provisions and the ultra vires 

allegations that the final decision and order is in violation of the statutory 
No. 03-14-00808-CV Rosendo Morales Appellant’s Reply Brief

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provisions of the Labor Code, and If there is any doubt, then Appellant should 

be allowed to plead more specifically the allegations.

2. State Agency Immunity is Waived When Statutes are Challenged as 

Not Being Properly Applied and Enforced as Again Explained by the 

Texas Supreme Court in Patel.

The Texas Supreme Court, in rejecting a state agency’s arguments for 

sovereign immunity in a jurisdictional plea, made clear this in Patel:

. . . in Heinrich we clarified that "[f]or claims challenging the validity of . . 

. statutes . . . the Declaratory Judgment Act requires that the relevant

governmental entities be made parties, and thereby waives immunity." 

Id. (citing Tex. Educ. Agency v. Leeper, 893 S.W.2d 432, 446 (Tex. 1994)). 

And we have reiterated the principle more recently. See Tex. Dep't of 

Transp. v. Sefzik, 355 S.W.3d 618, 621-22 & n.3 (Tex. 2011) (restating 

that state entities can be—and in some instances such as when the 

constitutionality of a statute is at issue, must be—parties to challenges 

under the UDJA); Tex. Lottery Comm'n v. First State Bank of DeQueen,

325 S.W.3d 628, 634 (Tex. 2010) (holding that allegations against the 

lottery commissioner were not ultra vires allegations because the claim 

challenged a statute and was not one involving a government officer's 

action or inaction). 

Patel v. Tex. Dep't of Licensing & Regulation, 2015 Tex. LEXIS 617, *11-12 (Tex. 

June 26, 2015). The Texas Supreme Court allowed declaratory judgment to 

proceed and required the relevant governmental entities be made parties, and 

Mr. Morales has plead both ultra vires claims and claims challenging the 

proper application and enforcement of statutory terms.

In DeQueen subsequent to Heinrich, the Texas Supreme Court reiterated 
No. 03-14-00808-CV Rosendo Morales Appellant’s Reply Brief

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that Declaratory Judgment Act suits to construe statutes are expressly allowed 

jurisdictionally against a state agency. Texas Lottery Commission v. First State 

Bank of DeQueen, 325 S.W.3d 628 (Tex. 2010). The Supreme Court in DeQueen

reiterated that jurisdiction over the state agency existed and citing to Leeper

explained:

[T]he DJA permits statutory challenges and governmental entities 

may be bound by those challenges, the DJA contemplates entities 

must be joined in those suits. Leeper, 893 S.W.2d at 446.

The Texas Supreme Court further explained in DeQueen that statutory 

clarification, as expressly sought in this matter, that the state agency is a 

proper party DeQueen, 325 S.W.3d 628 at 635 [emphasis added]:

Next, the Commission asserts that the DJA does not waive immunity 

because it applies only to suits involving constitutional invalidation and 

not to those involving statutory interpretation. But the language in the 

DJA does not make that distinction. . . . The trial court properly 

exercised jurisdiction over this claim.

Further, this matter involves partially a final decision of the DWC and the 

DWC Commissioner, so this matter does not just involve challenging the 

agency’s interpretation of the statutes but also the actions of the agency head 

by failing to properly apply and enforce the statutes. 

3. Declaratory Remedies To Prevent Future Abuses Are Not Redundant.
No. 03-14-00808-CV Rosendo Morales Appellant’s Reply Brief

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The DWC Appellees argue redundancy citing to rely upon inapplicable 

cases in SWEPI L.P. v. R.R. Comm 'n, 314 S.W.3d 253, 268 (Tex. App--Austin 

2010, pet. denied); Tex. Dep’t of State Health Servs. v. Balquinta, 429 S.W.3d 

726, 747 (Tex. App.—Austin 2014, pet. dism’d). Appellees’ Brief p. 21, 22. 

However, in all those cases the state agency was a party and would have been 

legally bound by the determinations.

The Texas Supreme Court in Patel also rejected the redundancy 

argument because the mere judicial review of an agency order would be 

limited to that particular order and not declarations of rights and protection 

against future attempts to misapply the law under the statutes:

The available remedies on appeal from an administrative finding 

are limited to reversal of the particular orders at issue. Id. But the 

Threaders seek more than a reversal of the citations issued to Momin 

and Yogi. They seek prospective injunctive relief against future agency 

orders based on the statutes and regulations. Accordingly, because the 

declaration sought goes beyond reversal of an agency order, 

Section 2001.174 of the APA does not provide a redundant remedy.

(Emphasis added.) Patel v. Tex. Dep't of Licensing & Regulation, 2015 Tex. 

LEXIS 617, *18-19 (Tex. June 26, 2015). 

The declaratory relief in this matter goes well beyond the reversal of an 

individual order, but seeks to require the Defendants including the Appellees 

to all properly apply and enforce the statutes in the future. Plaintiff has plead 
No. 03-14-00808-CV Rosendo Morales Appellant’s Reply Brief

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declaratory relief beyond just the reversal of the DWC and the DWC 

Commissioner’s final decision and order:1

The DWC Defendants and Texas Mutual may not ignore and must 

consider invalid an impairment rating that does not follow the Texas 

Workers’ Compensation Act which requires pre-MMI surgeries and the 

effects of the surgery to be considered in assigning an impairment. This 

Court should so declare and enforce. 

Mr. Morales clearly seeks to ensure that the DWC and the Commissioner and 

the Insurance Carrier properly interpret and properly apply the laws in the 

future and make sure the erroneous application and violation of the statutes 

does not occur in the future.

4. Ripeness and Standing Exists with a Live Controversy. Patel explains 

Ripeness is Shown by Mere Initial State Action—Here an Erroneous 

Final State Decision & Order Exists

In Patel, the Texas Supreme Court rejected the state agency’s analogous 

arguments as to standing and ripeness:

The standing doctrine identifies suits appropriate for judicial 

resolution. Brown v. Todd, 53 S.W.3d 297, 305 (Tex. 2001). Standing 

assures there is a real controversy between the parties that will be 

determined by the judicial declaration sought. Id. (quoting Tex. Workers' 

Comp. Comm'n v. Garcia, 893 S.W.2d 504, 517-18 (Tex. 1995)). "[T]o 

challenge a statute, a plaintiff must [both] suffer some actual or 

threatened restriction under the statute" and "contend that the statute 

 

1 CR 51, Plaintiff’s Amended Petition and Suit for Declaratory Relief, Par. 13
No. 03-14-00808-CV Rosendo Morales Appellant’s Reply Brief

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unconstitutionally restricts the plaintiff's rights." Garcia, 893 S.W.2d at 

518.

Patel at 2015 Tex. LEXIS 617, *14, 58 Tex. Sup. J. 1298. 

The substantive statutory issues are clear and laws are being ignored or 

erroneously applied and not enforced. Without question a live controversy 

exists over the inclusion and consideration of spinal fusion surgeries in 

impairments and impairment ratings under the Texas Workers’

Compensation Act.

5. Under Labor Code Section 410.255, the DWC is a proper party for all 

other issues, which likely includes the Proper Enforcement of the Law 

for Assigning Impairment Ratings.

The state appellees argue that § 410.255 does not matter at p. 15 of their 

brief:

. . . . the Legislature provided the Division with authority to intervene

where it believed there was a possible violation of applicable laws and

rules. See id. § 410.254. That authority would be largely superfluous if

the Division could be dragged into court regardless of its wishes.

That is the whole problem with the DWC’s circular argument that only the 

DWC gets to decide “if there was a possible violation of applicable laws.” This 

would conveniently avoid the purpose of the Judicial Branch in Texas to 

ensure a state agency and state officials follow the law. The DWC is a proper 
No. 03-14-00808-CV Rosendo Morales Appellant’s Reply Brief

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party under Texas Labor Code § 410.255 as the Legislature envisioned.

CONCLUSION

This Court should follow the Patel and Lumbermens decision allow 

Rosendo Morales to proceed with the declaratory judgment claim and keep as 

parties both the DWC and the Commissioner, in his official capacity. The 

jurisdiction exists due to the live controversy, exhaustion of administrative 

remedies, and the state agency and state official are necessary parties for 

proper enforceability of the statutes and to ensure proper compliance with 

statutory terms alleged to be violated. Otherwise only the few who continue 

to fight will have a chance for justice on a piece by piece basis and the harm 

may occur again and again. The purpose of the Declaratory Judgment Act is to 

make the laws clear to all affected and to make sure the laws are properly 

applied and not violated by the state agency and the head of the state agency. 

The Judiciary oversees the Executive Branch both to uphold its proper actions 

but to also to protect Texans’ rights to make sure the laws are properly 

applied and correctly interpreted and rightly enforced. 
No. 03-14-00808-CV Rosendo Morales Appellant’s Reply Brief

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PRAYER

Rosendo Morales, Appellant, respectfully prays and ask that this Court 

reverse the ruling of the District Court on the plea to the jurisdiction granted 

to the DWC and the Commissioner, and this Court should not allow the

dismissal of the DWC and the Commissioner, and that this Court determine 

that the District Court has jurisdiction to determine the declaratory judgment 

matters sought by Appellant including against the DWC and the 

Commissioner. Appellant ask for all other relief to which he is entitled 

including costs of court.

Respectfully,

/s/ Brad McClellan

Bradley Dean McClellan

State Bar No. 13395980

Of Counsel, Law Offices of Richard Pena, P.C.

Richard Pena

Law Offices of Richard Pena, P.C

State Bar No. 00000073

1701 Directors Blvd., Suite 110

Austin, Texas 78744

Brad.McClellan@yahoo.com

(512) 327-6884 telephone

(512) 327-8354 facsimile

Attorney for Appellant
No. 03-14-00808-CV Rosendo Morales Appellant’s Reply Brief

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CERTIFICATE OF COMPLIANCE

I certify that I have 3,325 word count checked by the word program in 

compliance with the Texas Rules of Appellate Procedure.

/s/ Brad McClellan

Bradley Dean McClellan

CERTIFICATE OF SERVICE

I certify that a copy of the foregoing Appellants’ Reply Brief was served 

on the through counsel of record by the method indicated below on 

September 8, 2015.

Adrienne Butcher, Assistant Attorney General 

Administrative Law Division 

Office of the Attorney General of Texas

P.O. Box 12548 (MC-018), Capital Station 

Austin, Texas 78711-2548 

512-475-4208

Facsimile: (512) 320-0167 

adrienne.butcher@texasattorneygeneral.gov

Attorneys for DWC and Commissioner

Courtesy copy provided to other Defendant 

below

Scott Placek & Matthew Foerster

Arnold & Placek, LLC

203 East Main Ave, Ste. 203

Round Rock, TX 78664

Attorneys for Defendant

Via efiling/eservice

Via efiling/eservice

/s/ Brad McClellan 

Bradley Dean McClellan