### TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03
- 18
- 00345
- CV

Dr. Robert Coolbaugh, D.C., Appellant

v. Texas Department of Insurance
- Division of Workers’ Compensation and Commissioner Ryan Brannan, in his Official Capacity, Appellee s

FROM T H E 353RD DISTRICT COU RT OF TRAVIS COUNTY NO. D
- 1
- GN
- 15
- 005776 , THE HONORABLE LORA J. LIVINGSTON, JUDG E PRESIDING

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

This is an appeal from the judgment of the district court of Travis County sustaining a plea to the j urisdiction and affirming an order of the Commissioner of Workers ’ Compen sation. Appellant is R obert Coolbaugh, D.C.; appellees are the Texas Department of
Insurance

- Division of Workers’ Compensation (the Division) and Commissioner Ryan Brannan (the Comm i ssion er).

The Divi sion and the Commissioner filed a multifaceted plea to the jurisdiction challenging the court ’ s subject

- matter jurisdiction

. After hearin g, the district court granted the plea and dismissed all of Coolbaugh ’ s claims sav e f or his claim for judicial review of th e Commissioner ’ s Penalty Order . After conducting the suit for judicial review, the district court rendered ju dgment affirmin g the Commissioner ’ s Penalty Order. This Court will affirm the
dist rict court ’ s judgment.2 Coolbaugh fil ed a declaratory

- judgment suit complaining, among o ther things , of two orders: (1) a 2013 order of the State Office of Administrative Hearings (SOAH) requiring him to pay a $8, 32 6 .90 refund to an insurance company as a final disposition of a m e dical

- fee
d isp u te (the Refund Order), 1 and (2) the order of the Commissioner imposing a $10 ,000 administrative penalty for his failure to comply with Di vision orders requiring him to produce request ed information and to furnish proof of payment of the Ref u nd Order to th e insurance
compa n y (the Penalty Order).

Respecting the Refund Order, Coolbaugh asserted that the Division ha d acted beyond its authority regarding certain disputed medical bills; he also challenged one of the controlling agency rules.

I n its plea t o t he jurisdiction, the Division claimed that the court lacked jurisdiction to review Coolbaugh ’ s chall enge to the Refund Order be cause it be came final in
October 201 3 , when he did not seek judicial review. According to the plea, S OAH rendered the
Refund Ord er in August 2013. Coolbaugh did not challenge the R efund Order an d it became final in October 2013. Coolbaugh filed the instant suit complaining o f that o rder in December 2015.

From the p arties ’ briefing and the correspondence between the district cou rt and

c o unsel, it is app arent that the district court det e rmined the plea to the jurisdiction after an evidentiary hearing , yet Coolbaugh f iled no reporter ’ s record in this Court. See Michiana Ea sy
Livin ’ Count r

y , Inc, v. Holt e n , 168 S.W.3d 777, 783 ( Tex. 2005) ( “ If t he proc e e ding ’ s nature, the
tria l court ’ s order, the parti es ’ briefs, or other indications show that an evidentiary hearing took place in open court , then a complaining party must present a record of that hearing to establish

1 Early in the cont roversy, Coolbaugh made a $1,000 payment to the insurance company, thereby reducing th e amount owed under the Refund Order to $7,326.90.3

harmful error

. ” ) In the abs enc e of a reporter ’ s record, this Court will presume that the evidence supports the district court ’ s order. F i est a Mart , Inc. v. Hall , 886 S.W.2d 440, 442

– 43 (Tex. App

. — Houston [1 s t Dist.] 1994, no writ). A ccordingly, we presume that the i nstant suit was fi l ed

mo re than two years after the Refund Order became final and conclude that the district court correctly determined th at it lacked jurisdiction t o re v iew the or d er. See HCA Healthcare Corp. v.
Tex as Dep ’ t of Ins. , 30 3 S.W.3d 345, 352 ( Tex. App.

— Austin 2009 , no pet.). His argument notwithstanding, Coolbaugh cannot side

- step the dist ri ct court ’ s lack of jurisdiction to review th e Refund Order “ by cloaking

. . . [his] complaint in the mantle of a suit for d eclaratory ju d g ment. ”
S. C. San A ntoni o , I

n c. v. Texas Dep ’ t of Huma n Servs. , 891 S.W.2d 77 3 , 779 ( Tex. App.

— Austin 1995, writ den ied).

To avoid the Division ’ s plea to the jurisdiction asser ting sovereign immunity, Coolbaugh alleged that the Penalty Order was an ul tra vir e s act by the C ommission er . In it s orde r granting the ple a to the jurisdiction, the district c ourt concluded that Coolbaugh failed to plea d a valid ultra vires claim aga inst the Commissioner and dis miss ed him from the lawsuit.

The ultra vires ex c e ption to the sovereig n
- immunity doct rine permi ts suits a gainst

s tate officials for nondiscretionary acts unauthorized by law. Texas Dep ’ t of Transp. v. Sefzik
 ̧ 3 55 S.W.3d 618 , 621 (Tex. 2011). Coolbaugh alleg e d generally that the Division m isapplied the
Labor Code and the Di vision rules . It is true that Cool baugh su ed the Commissioner in hi s official capacity, but as we understand his pleadings, he asserted no fact ual allegations against
the Commissioner that are distinct from those of the Division as a whole. The only dist inct claim asserted again st the Com missione r was that he undertook ultra vires acts in rendering the Penalty
Ord e r. The Commissioner a rgues, c orrectly, that this cannot be a valid u ltra vi res claim since the4

Labor Code expressly empow ers him to assess adm inistrative p enalties for failure t o comply
with “ a rule, order, or d e cision of the commissioner. ” Tex. Lab

. Code § 415.021(a)

.

After hearing , the district court rendered judgment affirming the Commissioner ’ s Penalty Order , which im posed a $10,000 admin istrative penalty for Coo lbaugh ’ s failure t o comply with Division orders requiring him to produce requested information and to furnish proof of payment of the Refund Order to the insurance company.

Coolbaugh faults the Penalty Order because it imposes a penalty for violations of
the Refu n d Order, which he claims is voi d a nd unconstitutional. However, he ignores the fact that
the Refund Order is no w final and cannot be challenged. The Division and the Commis s ioner

a rgue that the di strict court correctly determined that the Commi ssioner ’ s Penalty Order is supported by substantial evidence. We agree.

In a substantial

- evidence review, t he court presumes that the agency order is support ed by substantial evidence and the burden is on the contestant to pro ve oth erwise. Te xas
He a l th Facili ti es Comm ’ n v. Charter Med

. - Dall

. , Inc. , 665 S.W.2d 446, 453 (Tex. 1984). The court may not subs titute its judgment for that of the agency as to the w eight of the evidence on

matter s committed to a g e ncy discr e tion

. Board o f L aw E xam ’ rs v. Stevens , 8 68 S. W. 2d 773, 777 (Tex. 1994)

. If reasonable minds could have reached the conclusion that the agency did in the

r ecord presented, then the court will affirm the agency order

. Id. at 777

– 78.

After Coolbaugh indisputably faile d to comply with the Divi s ion ’ s or ders, the
Division staff filed a c omplaint with SOAH seeking imposition of a $ 30 ,000 administrative
pen alty. The administrative law j udge conducted a hearing to determine the appropriate amount of the penalty. The Divisi on ’ s ca s e was presented b y on e w it ness , Darrell Cooper , the Di visio n ’ s Manager of Audits and Inve s tigations

. Cooper testified that the Division analyze s the facto rs in5

section 415.021 (c) in evaluating the amount of the administrati ve penalty. At the date of the hearing, that sec tion pr ov ided:

(c) In assessing an adminis trative penalty: ( 1 ) the commissioner shal l consider : (A) the seriousness of the viola t ion, including the nature, circumstances, c onsequences, extent an d gravity of the prohibit ed act; (B) the history and exten t of previous administrative violatio n s; ( C) the demonstrated good faith of the violator , including actions taken to rectif y the conseq u ences of the prohibited act (D) the penalty ne c essar y to d et er future violations ; (E) other matters that justi ce may re quire; and (2) the commissioner sha l l, to the exte nt re aso nable, consider the economic benefit re sulting from the prohibit ed act.

Tex. Lab

. Co de § 415.021( c )

.

Measuring Coolbaugh ’ s conduct against these factors, Cooper testified that Coolbaugh ’ s vio la tion was serious because of t he amo unt owed and his on

- going non

compliance

— Cooper was 1,400 days late in payment as of the hearing. He testified further, “ An order violation is considered [a] very serious violation

. All system participan ts t hat have stat utory
duties are expe cted to comply with their requirements without being ordered, but if they fail to,
the commissioners can iss u e order s [for them] to come into complianc e . If they fail to comply
with those order s, then it makes it virt uall y im possible for the ag ency to reg ulate the system

. ”

Cooper also attested that Coolbaugh had not comp lied with Division orders requesting information . Cooper noted that Coolbaugh ha d received two warning lett e rs in the6

past a bout late submission of form s
. He also opined that Coolbaugh failed to demonstrate good
faith in th at he did not respond t o the Division orders and th at he still owed the refund t o the insurance companies

.

Coolbaugh testified concerning claimed mitigati ng factors which he asse rt e d
sho uld result in no administrative penalty.

The administrative judge filed a proposal for de cision con cluding that the
Division wa s entitled to an order finding that an administrative penalty in the sum of $ 7, 326.90

was warra nted. The Commissioner adop ted the propo sal for decision with the modifica tion that the administrative penalty be increased to $10,000

.

It is undisp uted th at Coolb augh failed to reply to orders for production or provide proof of payment of the refund to the insurance company
. Ac cordi ngly, the Division was
authorized to assess an administrative penalty. Under this record, this Court has con clud ed
that t h e Com m issioner ’ s imposition of the $10,000 Penalty Order i s amply supported by

su bstantial evidence.

The judgment is affir med.

__________________________________________ Bob E. Shannon, Justice Before Chief Justice Rose, Justices Kelly and Shannon*
Affirmed
Filed: S eptember 10 , 2019
* Before Bob E. Shannon, Chief Justice (retired), Third Court of A ppeals, sitting by assignment. See Tex. Go v ’ t Code § 74.003(b).