# Fourth Court of Appeals **San Antonio, Texas**  DISSENTING OPINION N o. 04

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- CV Edna A. MARTINEZ , Appellant

v. STATE OFFICE OF RISK MANAGEMENT , Appellee From the 37th Judicial District Court, Bexar County, Texas Trial Court No. 2001

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- 17102 Honorable Antonia Arteaga, Judge Presiding 

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### R ECONSIDERATION Dissenting Opinion by: Liza A. Rodriguez, Justice , joined by Rebeca C. Martinez, Justice Sitting en banc : Sandee Bryan Marion, Chief Justice Rebeca C. Martinez, Justice Patricia O. Alvarez, Justice Luz Elena D. Chapa, Justice Irene Rios, Justice 1 Beth Watkins, Justice ( not participating ) Liza A. Rodriguez, Justice Delivered and Filed: May 15, 2019 I respectfully dissent from the denial of the appellant’s motion for rehearing en banc for the reason s discussed below

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1 Justice Rios votes to deny the motion for reconsideration en banc because neither of the requirements for en banc consideration are satisfied in this case. See T EX . R. A PP . P. 41.2(c) (providing that en banc consideration is “not favo red” and “should not be ordered unless necessary to secure or maintain uniformity of a court’s decisions” or unless required by “extraordinary circumstances”).Dissenting Opinion 04

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- After the Supreme Court reversed on the jurisdictional issue and remanded for consideration of Martinez’s substantive issue, this court is sued an opinion affirm ing the trial court’s summary judgment in favor of the State Office of Risk Management (“SORM”)

. See Martinez v. State Office of Risk Management , No. 04

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- CV, 2018 WL 5808333 (Tex. App.

— San Antonio Nov. 7, 2018, no pet. h.) (“ SORM II ”)

. The court agreed with SORM that Martinez’s violation of sections 658.010 and 659.018 of the Texas Government Code “affects” the compensability of her injury. See id. at *5. The two statutes govern the place where a state employee may work and earn com pensation for the hours worked. See T EX . G OV ’ T C ODE A NN . §§ 658.010, 659.018
. After performing a statutory interpretation analysis , the court held t hat the two Government Code statutes do not merely re gulate “ the manner of doing work , ” as argued by Martinez, but “ limit a state employee’s scope of employment by mandating that the state employee obtain prior written authorization before working at home.” SORM II , 2018 WL 5808333, at * 8

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. The court concluded that, based on Martinez ’s testimony admitting she did not obtain prior approval before working from home, it was undisputed that she did not comply with the Government Code statutes and therefore she was not acting within the scope of her employment when she fell ; thus, she did not sustain a compensable injury

. 2 Id. at *9

. In reaching its conclusion, the court rejected Martinez’s argument that the two Government Code statutes do not control in this situation because they conflict with the Texas Worker’s Compensation Act , as codified in secti ons 401.001 through 419. 007 of the Labor Code

. See id. As Martinez pointed out, section 401.011(12) of the Worker’s Compensation Act defines “course

2 The Labor Code defines a “compensable injury” as “an injury that arises out of and in the course and scope of employment for which compensation is payable . . .

. ” T EX . L AB . C ODE A NN . § 401.011(10). The Supreme Court clarified that the requirement of a “compensable injury” contains two elements

— the injury must “arise out of” and occur “within the course and scope” of the employment. State Office of Risk Management v. Martinez , 539 S.W.3d 266, 276 (Tex. 2017).Dissenting Opinion 04

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- and scope of employment , ” which is an element of a compensable injury, as including “an activity conducte d on the premises of the employer or at other locations.” T EX . L AB . C ODE A NN . § 401.011(12). Thus, the Worker’s Compensation Act contemplates an employee working from

“ other locations , ” which would include from home. Further, as noted by Martinez, the l egislative history contains nothing to indicate the legislature intended the two Government Code statutes to supersede section 401.011(12)’s definition of the scope of employment for purposes of worker’s compensation

. I disagree with the court’s conclusio n in SORM II that sections 658.010 and 659.018 of the Government Code do not conflict with section 401.011(12) of the Labor Code. See SORM II , 2018 WL 5808333, at *9 (f inding no conflict between the plain language of the three statutes ). I also disagree with the opinion’s statement that, even if the statutes were irreconcilable, the Government Code provisions would control because they are the more specific provision s. See id. To the contrary, in my view of the plain statutory language, the Government Code statutes regulating where a ny state employee may work for compensation are the more general provision s , while the Worker’s Compensation Act ’s definition of the “course and scope of employment” is the more specific provision in that it a pplies only to the small subset of employees who sustain an injury while working. Therefore, I would hold that section 401.011(12)’s definition of “ course and scope of employment” controls in th is situation. Because that statute contemplates working from “other locations,” including from home, Martinez’s failure to comply with the Government Code ’s requirement of prior approval is not dispositive of the summary judgment issue , i.e., the issue of whether she sustained a compens a bl e injury

. I also b elieve the summary judgment record raises a disputed fact question on the issue of whether Martinez had authority from her employer to work at home . As recognized by this courtDissenting Opinion 04

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- in SORM I , there was evidence that the Department of Family and Protective Ser vices’ s policy allowed Martinez to work from home. See Martinez v. State Office of Risk Management , No. 04

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- CV, 2016 WL 548115, at * 8 (Tex. App.

— San Antonio Feb. 10, 2016) (mem. op.), aff’d in part , rev’d in part , 539 S.W.3d 266 (Tex. 2017) (“SORM I ” )

. Further, as the SORM I o pinion states , “ [a]s the appeals panel noted in its decision, ‘[t] here is evidence to support the hearing officer’s decision that the claimant had the authority to work at home at the time.’” Id. Under the standard of review for a traditional summary judgment , we consider all the evidence in the light most favorable to the non

- movant , and indulge all reasonable inferences from the evidence in favor of the non

- movant , in determining whether the movant proved there were n o genuine issues of material fact and it was entitled to judgment as a matter of law

. See id. at *4 (citing Nixon v. Mr. Prop. Mgmt. Co. , 690 S.W.2d 546, 548

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. Having determined that Martinez’s violation of the Government Code does not ent itle SORM to judgment as a matter of law, I would hold that the summary judgment record raises a genuine issue of material fact concerning whether Martinez had authority from her employer to work from home. B ased on these reasons, I would grant Martinez’s motion for rehearing en banc, withdraw the panel opinion in SORM II , and re

- submit the appeal for consideration by the en banc court. Liza A. Rodriguez, Justice