NUMBER 13-22-00063-CV

COURT OF APPEALS 

THIRTEENTH DISTRICT OF TEXAS 

CORPUS CHRISTI – EDINBURG 

 

THE UNIVERSITY OF TEXAS 

RIO GRANDE VALLEY, Appellant,

v.

RITA OTEKA, Appellee.

 

On appeal from the 139th District Court 

of Hidalgo County, Texas.

 

MEMORANDUM OPINION 

Before Justices Longoria, Hinojosa, and Silva

Memorandum Opinion by Justice Longoria

Appellee Rita Oteka sued appellant the University of Texas Rio Grande Valley 

(UTRGV) for personal injuries after she was struck by a UTRGV police officer vehicle. 

UTRGV filed a plea to the jurisdiction, which the trial court denied. In one issue, UTRGV 

argues that the trial court erred because Oteka, a UTRGV employee, failed to exhaust 
2

her administrative remedies with the Texas Division of Workers’ Compensation (the 

Division). We affirm.1

I. BACKGROUND

On May 11, 2019, Oteka, a UTRGV nursing professor, attended a graduation 

ceremony for UTRGV students at the McAllen Convention Center. As she was walking to 

her car after the ceremony, a vehicle driven by a UTRGV police officer struck her in the 

parking lot, causing her to suffer personal injuries. UTRGV, a self-insured employer for 

workers’ compensation insurance, notified its claim administrator of Oteka’s injury on 

June 4. The claims administrator then filed a form with the Division reporting a workrelated injury. On June 7, 2019, the claims administrator reached out to Oteka concerning 

workers’ compensation coverage, and Oteka replied that she was using her private 

insurance. UTRGV thereafter denied coverage.

On December 1, 2020, Oteka sued UTRGV for negligence.2 UTRGV answered 

suit, asserting the exclusive remedy defense under the Texas Workers’ Compensation 

Act (TWCA). See TEX. LAB. CODE ANN. § 408.001(a) (“Recovery of workers’ compensation 

benefits is the exclusive remedy of an employee covered by workers’ compensation 

insurance coverage . . . against the employer . . . for . . . a work-related injury sustained 

by the employee.”). On January 26, 2022, over two-and-a-half years after Oteka 

1 The Honorable Leticia Hinojosa, former Justice of this Court, did not participate in this decision 

because her term of office expired on December 31, 2022.

2 Oteka named UTRGV as a defendant in an amended petition. Initially, on September 29, 2020, 

Oteka filed an original petition naming Abel Jesus Rodriguez, IV as a defendant. Thereafter, Oteka reached 

a Rule 11 agreement with Rodriguez’s counsel to substitute UTRGV as the defendant pursuant to 

§ 101.106(f) of the Texas Civil Practice and Remedies Code. See TEX. CIV. PRAC. & REM. CODE ANN. 

§ 101.106(f); TEX. R. CIV. P. 11.
3

sustained her injuries, UTRGV’s claims administrator accepted coverage. Afterwards, 

UTRGV filed a plea to the jurisdiction alleging that Oteka failed to exhaust her 

administrative remedies with the Division regarding the compensability of her injuries. 

See id. § 413.031. UTRGV argued that the compensability determination, including 

whether Oteka was in the course and scope of her employment, is within the exclusive 

jurisdiction of the Division. It attached evidence establishing that it was a self-insured 

employer for workers’ compensation insurance and that Oteka did not pursue a 

determination of compensability with the Division before filing suit.

Oteka filed a response, arguing that the jurisdictional record established she was 

not in the course and scope of employment at the time of her injury, or there was at least 

a fact issue in this regard. Therefore, Oteka contended she was not required to exhaust 

her administrative remedies under the TWCA. UTRGV then filed a supplemental plea 

addressing Oteka’s arguments. After a non-evidentiary hearing, the trial court denied 

UTRGV’s plea. This interlocutory appeal followed. See TEX. CIV. PRAC. & REM. CODE ANN. 

§ 51.014(a)(8).

II. STANDARD OF REVIEW & APPLICABLE LAW

“A plea to the jurisdiction is a dilatory plea, the purpose of which is to defeat a 

cause of action without regard to whether the claims asserted have merit.” Bland Indep. 

Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000). The plea challenges the trial court’s 

subject matter jurisdiction over a pleaded cause of action. Tex. Dep’t of Parks & Wildlife 

v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004). Subject matter jurisdiction is a question of 

law; therefore, when the determinative facts are undisputed, we review the trial court’s 
4

ruling on a plea to the jurisdiction de novo. Id. When an agency has exclusive jurisdiction 

and the plaintiff has not exhausted administrative remedies, the trial court lacks subject

matter jurisdiction and must dismiss any claim within the agency’s exclusive jurisdiction. 

In re Accident Fund Gen. Ins. Co., 543 S.W.3d 750, 752 (Tex. 2017) (orig. proceeding) 

(per curiam). Here, the determinative facts are undisputed—Oteka did not file a claim with

the Division regarding the compensability of her injuries under the TWCA. Therefore, we 

review de novo whether she was required to do so before bringing the present suit. See 

id.

The TWCA vests the Division with exclusive jurisdiction to determine the ultimate 

question of whether the claimant is entitled to workers’ compensation benefits. Berry 

Contracting, L.P. v. Mann, 549 S.W.3d 314, 320 (Tex. App.—Corpus Christi–Edinburg 

2018, pet. denied); see TEX. LAB. CODE ANN. Ch. 410 (“Adjudication of Disputes”); Am.

Motorists Ins. Co. v. Fodge, 63 S.W.3d 801, 804 (Tex. 2001) (explaining that because a 

claim for bad-faith denial of benefits depends upon the ultimate question of whether the 

claimant was entitled to benefits in the first place, the bad-faith issue was also subject to 

the Division’s exclusive jurisdiction over compensability determinations). A “claim” may 

be initiated by “[a]n employee or a person acting on the employee’s behalf . . . not later 

than one year after the date on which . . . the injury occurred.” TEX LAB. CODE ANN. 

§ 409.003. Relatedly, an employer who subscribes to workers’ compensation insurance 

may raise the exclusive remedy provision as a bar to a negligence claim filed against it. 

TEX. LAB. CODE ANN. § 408.001(a); see Robles v. Mount Franklin Food, L.L.C., 591 

S.W.3d 158, 165 (Tex. App.—El Paso 2019, pet. denied). An injury is compensable and 
5

subject to the exclusive remedy bar if it “arises out of and in the course and scope of 

employment[.]” TEX. LAB. CODE ANN. § 401.011(10); see also City of Corpus Christi v. 

Muller, No. 13-18-00443-CV, 2019 WL 2384162, at *2 (Tex. App.—Corpus Christi–

Edinburg June 6, 2019, no pet.) (mem. op.).

III. DISCUSSION

UTRGV does not assert that Oteka was in the course and scope of employment 

such that the exclusive remedy provision bars Oteka’s negligence claim. Rather, it argues 

that this determination is within the exclusive jurisdiction of the Division. It maintains that 

the trial court lacks jurisdiction because Oteka did not exhaust her administrative 

remedies.

This Court addressed a similar issue in Mann, 549 S.W.3d 314. In that case, Mann 

was injured crossing the road near a refinery where he was acting as a foreman for a 

project undertaken by his employer Berry Contracting d/b/a Bay Ltd. (Bay). Id. at 318. 

Bay submitted notice of the injury to the carrier for two possible policies. Id. at 319. One 

policy was procured by the refinery owner Valero and was designed to provide workers’ 

compensation to contractors who worked on Valero projects. Id. The other policy was 

procured by Bay for the general protection of its employees. Id. Both carriers denied 

coverage, claiming that Mann was covered by the other policy. Id. The carriers disagreed 

as to whether Mann was in course and scope of his employment when injured. Id. Mann 

then filed a personal injury suit against Bay. Id. Meanwhile, Bay continued asking both 

insurance carriers to provide benefits, and it filed a claim with the Division seeking 

coverage and reimbursement from the carriers. Id. In the trial court, Mann filed a partial 
6

motion for summary judgment seeking to defeat Bay’s exclusive remedy defense, which 

the trial court granted. Id.

In considering the matter on permissive appeal, we addressed as a threshold issue 

whether the Division had exclusive jurisdiction over the suit. Id. at 320. We noted that the 

TWCA vests the Division with the exclusive jurisdiction to determine whether a claimant 

is entitled to workers’ compensation benefits. Id. We then explained that the Texas 

Supreme Court has held that whether the injury occurred in the course and scope of 

employment is an issue that regards compensability. Id. (citing Morales v. Liberty Mut. 

Ins. Co., 241 S.W.3d 514, 518 (Tex. 2007)). Yet, we held that the Division did not have 

exclusive jurisdiction for two reasons. Id. First, we noted that the determination of whether 

any type of claim is within the exclusive jurisdiction of the Division depends on whether it 

is based on a claimant’s entitlement to benefits. Id. We explained that Mann’s personal 

injury suit was not based on the ultimate question of whether Mann was eligible for 

workers’ compensation benefits. Id. We stated that “[t]here is no aspect of the personal 

injury suit that requires Mann to ultimately be eligible for workers’ compensation 

benefits[.]” Id. at 321. We distinguished a personal injury suit from the bad-faith denial of 

benefits claim at issue before the court in Fodge, which does require eligibility for workers’ 

compensation benefits. Id.

Second, we noted that “the Division’s exclusive jurisdiction ‘does not extend to all 

cases that touch on workers’ compensation issues.’” Id. (quoting AMS Constr. Co., Inc. 

v. K.H.K. Scaffolding Hous., Inc., 357 S.W.3d 30, 38 (Tex. App.—Houston [1st Dist.] 

2011, pet. dism’d)). We observed that trial courts often decide disputes about whether the 
7

TWCA’s exclusive remedy provision applies as a defense to an injured worker’s personal 

injury suit. Id. (citing AMS Constr., 357 S.W.3d at 38); see, e.g., Port Elevator-Brownsville 

v. Casados, 358 S.W.3d 238, 242 (Tex. 2012); Wingfoot Enters. v. Alvarado, 111 S.W.3d 

134, 137–38 (Tex. 2003); Reveles v. OEP Holdings, LLC, 574 S.W.3d 34, 37–39 (Tex. 

App.—El Paso 2018, no pet.); see also Medrano v. Kerry Ingredients & Flavours, Inc., 

No. 02-20-00247-CV, 2021 WL 1323432, at *2 (Tex. App.—Fort Worth Apr. 8, 2021, no 

pet.) (mem. op.) (following Mann and holding that the appellant’s personal injury claim 

was not based on his entitlement to benefits and was not subject to the Division’s 

exclusive jurisdiction); Muller, 2019 WL 2384162, at *3 (affirming the trial court’s denial of 

a plea to the jurisdiction asserting the application of the exclusive remedy defense 

because there was a fact issue regarding whether the employee was in the course and 

scope of employment).

Although procedurally different, the present case involves the same legal issue 

before us in Mann. Oteka did not file a claim for workers’ compensation benefits, instead 

filing a personal injury suit. UTRGV asserted the exclusive remedy defense, claiming she 

was in the course and scope of her employment. UTRGV has not had the merits of the 

defense considered by the trial court, instead moving for dismissal on the ground that the 

course and scope issue was in the exclusive jurisdiction of the Division. Guided by our 

holding in Mann, we conclude that Oteka’s suit is not based on the ultimate question of 

whether she is eligible for workers’ compensation benefits. As we previously observed, it 

is “just the opposite, if [Oteka’s] injury is compensable, this would likely bar [her] suit 

pursuant to the exclusive-remedy defense.” Mann, 549 S.W.3d at 321 (citing Walls Reg’l 
8

Hosp. v. Bomar, 9 S.W.3d 805, 806 (Tex. 1999) (per curiam)). Therefore, she was not 

required to exhaust her administrative remedies with the Division.

UTRGV relies on authority that is either inapposite or contrary to this Court’s prior 

holding. See Berrelez v. Mesquite Logistics USA, Inc., 562 S.W.3d 69 (Tex. App.—San 

Antonio 2018, no pet.); In re Tyler Asphalt & Gravel Co., Inc., 107 S.W.3d 832 (Tex. 

App.—Houston [14th Dist.] 2003, orig. proceeding); see also In re Hellas Constr., Inc., 

No. 03-21-00182-CV, 2022 WL 2975702 (Tex. App.—Austin July 28, 2022, orig. 

proceeding) (mem. op.). In both In re Tyler and In re Hellas, there were collateral 

proceedings for judicial review of the Division’s decisions regarding compensability in 

addition to the personal injury suits. Each court of appeals held that because the 

administrative process had been invoked by one of the parties, the personal injury suits 

should be abated pending the outcome of the judicial review proceedings. In re Hellas, 

2022 WL 2975702, at *7; In re Tyler, 107 S.W.3d at 843. The courts did not conclude in 

either case that the personal injury suit must be dismissed for jurisdictional reasons—the 

remedy sought by UTRGV in this case. We find In re Tyler and In re Hellas inapposite, as 

there is no collateral proceeding in which the Division made a determination regarding 

the compensability of Oteka’s injuries, and the remedy afforded in those cases was 

abatement—not dismissal.

In Berrelez, an employee of a hotel was sexually assaulted by a hotel guest while 

performing housekeeping duties. 562 S.W.3d at 71. The employer submitted a workers’ 

compensation claim to its insurance carrier which determined that the employee had a 

compensable injury for mental trauma. Id. The employee resigned her position and never 
9

contacted the carrier. Id. She later filed a premises liability claim against the employer. Id. 

The trial court granted the employer’s motion to dismiss on the grounds that the employee 

had not exhausted her administrative remedies and her claims were barred by the 

exclusive remedy provision. Id. at 72. The San Antonio Court of Appeals affirmed the 

dismissal, holding that the Division’s exclusive jurisdiction to determine compensability 

encompassed the determination of whether an injury occurred in the course and scope 

of employment, and therefore the employee failed to exhaust her administrative remedies.

Id. at 74.

Berrelez is factually distinguishable in that the workers’ compensation carrier

offered coverage before the employee filed suit. Here, the carrier did not accept coverage 

until after Oteka’s negligence suit was filed and almost two-and-a-half years after she 

sustained her injuries. More importantly, we held in Mann that a personal injury suit is not 

based on the ultimate question of whether the employee is eligible for workers’ 

compensation benefits, even when the employer contends that the employee was in the 

course and scope of employment. See 549 S.W.3d at 321. Should the employer be 

correct on this contention, they have statutory protection in the exclusive remedy defense. 

See TEX. LAB. CODE ANN. § 408.001(a). 

To the extent that our sister court’s opinion in Berrellez conflicts without our own, 

we are bound to follow our prior decision in Mann. See Mitschke v. Borromeo, 645 S.W.3d 

251, 256 (Tex. 2022) (explaining that under the doctrine of horizontal stare decisis, a court 

of appeals panel “must follow materially indistinguishable decisions of earlier panels of 

the same court”). We hold that Oteka was not required to exhaust her administrative 
10

remedies with the Division before filing a personal injury suit. See Mann, 549 S.W.3d at 

321. Therefore, the trial court did not lack jurisdiction for this reason, and it did not err in 

denying UTRGV’s plea to the jurisdiction. See In re Accident Fund., 543 S.W.3d at 752. 

We overrule UTRGV’s sole issue.

IV. CONCLUSION

We affirm the trial court’s order.

NORA L. LONGORIA

Justice

Delivered and filed on the

26th day of January, 2023.