COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 2-08-187-CV

WILBERT L. CLEWIS, SR. APPELLANT

V.

SAFECO INSURANCE COMPANY APPELLEE

OF AMERICA

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FROM THE 96TH DISTRICT COURT OF TARRANT COUNTY

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OPINION

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Introduction

Appellant Wilbert L. Clewis, Sr. appeals the trial court’s denial of his

motion to vacate the judgment it signed in September 2000. In three related

issues, Clewis asserts that the judgment is void because of the parties’ failure

to comply with statutory and administrative requirements concerning workers’

compensation suits. We conclude that the judgment is not void and that Clewis
1... In 2005, the legislature renamed the TWCC as the Division of

Workers’ Compensation of the Texas Department of Insurance. See Combined

Specialty Ins. Co. v. Deese, 266 S.W.3d 653, 656 n.1 (Tex. App.—Dallas

2008, no pet.). Because the events relevant to this appeal occurred before

2005, and for the purposes of simplicity and consistency, we will use the

TWCC moniker in this opinion.

2... Clewis contended that the TWCC incorrectly determined that he had

reached maximum medical improvement and that it erred in its determination

of his impairment rating. See Clewis v. Safeco Ins. Co. of Am. & Tex. Workers’

Comp. Comm’n, No. 02-00-00308-CV, slip op. at *1, *18–20 (Tex. App.—Fort

Worth Feb. 14, 2002, pet. denied) (not designated for publication). Our opinion

in Clewis’s previous appeal in this case details the facts of his accident and the

history of his administrative and judicial proceedings; thus, we will set forth

only a brief summary of the facts in this opinion concerning the issues

particularly raised in this appeal.

2

filed his motion to vacate after the trial court’s plenary power expired; we

therefore dismiss this appeal for want of jurisdiction.

Background Facts

In 1999, Clewis filed suit against appellee Safeco Insurance Company of

America (Safeco), seeking reversal of a final decision of the Texas Workers’

Compensation Commission (TWCC)1 regarding injuries he suffered in a truck

accident during his employment with Allied Waste Industries.2In 2000, after

the trial court denied Clewis’s motion for summary judgment, the TWCC

intervened in the suit, asking the trial court to affirm the TWCC’s decision.

Later that year, the trial court held a bench trial on the merits of Clewis’s

claims. At trial, Clewis, Safeco, and the TWCC all appeared and announced
3... These appearances are reflected in the trial court’s judgment.

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ready.3 After hearing evidence and argument and after taking the case under

advisement, on September 18, 2000, the trial court signed a final judgment

affirming the TWCC’s administrative decision. Clewis appealed the trial court’s

judgment; in 2002, we affirmed that judgment. See Clewis, No. 02-00-00308-

CV, slip op. at *22.

Over five years later, on December 31, 2007, Clewis filed a motion to

vacate the judgment with the trial court, contending that it is void because the

parties failed to follow statutory and administrative procedures relating to the

TWCC’s right to notice of the proposed judgment. See Tex. Lab. Code Ann.

§ 410.258 (Vernon 2006); 28 Tex. Admin. Code § 147.11 (1996) (TWCC,

Notification of Commission of Proposed Judgments and Settlements). In April

2008, after the trial court conducted a brief hearing, it denied Clewis’s motion

to vacate. Clewis appeals that denial.

Statutory and Administrative Notice Requirements

Because Clewis’s three issues and the notice provisions he relies upon are

related, we will consider the issues together. In regard to a suit seeking judicial

review of a workers’ compensation determination, section 410.258 of the labor

code states,
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(a) The party who initiated a proceeding under this subchapter

or Subchapter G must file any proposed judgment or settlement

made by the parties to the proceeding, including a proposed default

judgment, with the division not later than the 30th day before the

date on which the court is scheduled to enter the judgment or

approve the settlement. The proposed judgment or settlement

must be mailed to the division by certified mail, return receipt

requested.

(b) The division may intervene in a proceeding under Subsection

(a) not later than the 30th day after the date of receipt of the

proposed judgment or settlement.

(c) The commissioner shall review the proposed judgment or

settlement to determine compliance with all appropriate provisions

of the law. If the commissioner determines that the proposal is not

in compliance with the law, the division may intervene as a matter

of right in the proceeding not later than the 30th day after the date

of receipt of the proposed judgment or settlement. The court may

limit the extent of the division’s intervention to providing the

information described by Subsection (e).

(d) If the division does not intervene before the 31st day after

the date of receipt of the proposed judgment or settlement, the

court shall enter the judgment or approve the settlement if the

court determines that the proposed judgment or settlement is in

compliance with all appropriate provisions of the law.

(e) If the division intervenes in the proceeding, the commissioner

shall inform the court of each reason the commissioner believes the

proposed judgment or settlement is not in compliance with the law.

The court shall give full consideration to the information provided

by the commissioner before entering a judgment or approving a

settlement.

(f) A judgment entered or settlement approved without

complying with the requirements of this section is void.
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Tex. Lab. Code Ann. § 410.258 (emphasis added); see id. § 410.251 (Vernon

2006). Similarly, title 28, section 147.11 of the administrative code states,

(a) The party who requested judicial review under Chapter 410,

Subchapter F or G shall file a copy of any proposed judgment or

settlement with the executive director of the Commission by filing

it with the General Counsel of the Commission not later than the

30th day before the date on which the court is scheduled to enter

the judgment or approve the settlement. A proposed judgment or

settlement must be sent by certified mail return receipt requested.

(b) The insurance carrier or its representative shall file with the

General Counsel of the Commission a copy of a final judgment or

settlement not later than the 10th day after a court approves the

agreement or settlement.

(c) For suits seeking judicial review filed under Chapter 410,

Subchapter F (regarding Judicial Review General Provisions) or

Subchapter G (regarding Judicial Review of Issues Regarding

Compensability or Income or Death Benefits), on or after September

1, 1997, a judgment or settlement which is not filed with the

commission in compliance with subsections (a) and (b) of this

section is void.

(d) A party who violates this section may be subject to an

administrative penalty, including a penalty of up to $1,000

pursuant to the Texas Labor Code, § 415.0035 or up to $10,000

pursuant to the Texas Labor Code, § 415.021 for repeated

violations.

28 Tex. Admin. Code § 147.11 (emphasis added).

Analysis

Clewis contends that the parties did not comply with either of the

provisions described above, that the trial court’s judgment is therefore void, and
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that as a result, the court improperly denied his motion to vacate the judgment.

Therefore, we must initially decide whether these notice provisions apply to this

case because that will determine whether the 2000 judgment is void.

Furthermore, we must address our jurisdiction over this appeal, which

necessarily first requires us to determine whether the trial court had jurisdiction

to vacate its judgment that was affirmed by us five years earlier.

Standard of review

When deciding issues related to statutory construction, we apply a de

novo standard of review, “ascertaining and giving effect to the legislature’s

intent as expressed by the plain and common meaning of the statute’s words.”

Wichita County v. Bonnin, 268 S.W.3d 811, 817 (Tex. App.—Fort Worth

2008, pet. denied); see Tex. Dep’t of Transp. v. City of Sunset Valley, 146

S.W.3d 637, 642 (Tex. 2004). We assume that the legislature tried to say

what it meant and, thus, that its words are the surest guide to its intent.

Bonnin, 268 S.W.3d at 817. Every word of a statute is presumed to have been

used for a purpose; every word excluded from a statute must also be presumed

to have been excluded for a purpose. Gray v. Nash, 259 S.W.3d 286, 291

(Tex. App.—Fort Worth 2008, pet. denied).

In ascertaining legislative intent, we do not confine our review to isolated

statutory words, phrases, or clauses, but we instead examine the entire act.
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Id. We may also consider the statute’s objectives, common law, former law,

similar provisions, and the consequences of the statutory construction. Bonnin,

268 S.W.3d at 817; see City of Sunset Valley, 146 S.W.3d at 642.

The statutory and administrative requirements’ application to the trial court’s

judgment 

The Austin Court of Appeals recently examined the application of section

410.258 to proposed judgments entered after the completion of adversarial

proceedings. See Tex. Prop. & Cas. Ins. Guar. Ass’n for Petrosurance Cas. Co.

v. Brooks, 269 S.W.3d 645, 648 (Tex. App.—Austin 2008, no pet.).

In Brooks, the plaintiff (Brooks) filed suit in district court seeking reversal of the

TWCC’s denial of benefits following his car accident. Id. at 647. After Brooks

prevailed in summary judgment proceedings, the employer contended on appeal

that the trial court’s judgment was void because the parties did not comply with

section 410.258 by timely submitting the proposed judgment to the TWCC.

Id. at 647–48. Brooks argued that section 410.258 does not apply to

judgments prepared by the trial court following adversarial proceedings and that

it instead applies only to judgments resulting from parties’ settlement

agreements. Id. at 648–49; see Tex. Lab. Code Ann. § 410.258(a) (applying

the requirements of section 410.258 to “any proposed judgment or settlement
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made by the parties to the proceeding”). The Austin court explained the

contentions of the parties:

[the employer] contends that because “a judgment” does not

distinguish between proposed judgments “made by the parties” and

judgments entered by the trial court that have not been submitted

by the parties by agreement, the legislature intended for the statute

to apply to any judgments regardless of whether they are the result

of agreement or the adversarial process. Brooks responds that,

when reading the statute as a whole, the reference to “a judgment”

in subsection (f) is limited by subsection (a) of the statute.

He contends that the general language of subsection (f) cannot

apply to a broader range of judgments than those contemplated by

subsection (a), which—according to Brooks—applies only to

proposed judgments “made by the parties.”

Brooks, 269 S.W.3d at 649. The Austin court sided with Brooks, holding and

explaining that

the legislature did not intend that the statute apply to judgments

entered by the trial court that were not submitted or proposed to

the court by agreement of the parties or the result of a default by

the defendant. The statute was intended to prevent the parties

from colluding to overturn appeals panel decisions. It accomplishes

this purpose by requiring submission of judgments “made” by the

parties—i.e. judgments proposed to the court by agreement of the

parties rather than judgments entered as a result of adversarial

proceedings. If, however, the statute were to apply to any

judgment, a strict reading of the statute would require a trial court

to figure out a way to get the party who initiated the action to

submit the judgment the court is preparing to enter to the [TWCC]

for approval thirty days in advance of entry in every case.

 . . . . 

We conclude that section 410.258 does not require the

[TWCC] to receive advance notice of every judgment in a
4... The court recognized that its holding conflicted with an opinion from

the El Paso Court of Appeals, which applied section 410.258 to a summary

judgment. Brooks, 269 S.W.3d at 651; see Ins. Co. of Pa. v. Martinez, 18

S.W.3d 844, 848 (Tex. App.—El Paso 2000, no pet.); see also S. Ins. Co. v.

Brewster, 249 S.W.3d 6, 12–14 (Tex. App.—Houston [1st Dist.] 2007, pet.

denied) (likewise applying section 410.258 to a summary judgment). The El

Paso court recognized, however, that the purpose of section 410.258 is to

“prevent the use of settlement agreements and default judgments to overturn

appeals panel decisions.” Martinez, 18 S.W.3d at 847.

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proceeding initiated under subchapter F or G of the labor code.

Instead, we are of the opinion that the statute requires the [TWCC]

to receive notice of proposed judgments “made by the

parties”—i.e. without judicial oversight or without fully adversarial

proceedings—and settlement agreements made by the parties.

This interpretation ensures that the trial court does not sign off on

a proposed judgment made or agreed to by the parties before the

[TWCC] has been notified and given an opportunity to intervene.

Additionally, this interpretation does not place impractical

procedural burdens on the trial court or permit a party who initiated

the proceeding to avoid or delay entry of an adverse judgment by

refusing to submit the judgment to the [TWCC]. This interpretation

also gives meaning to the phrase “made by the parties” that is

consistent with the purpose of the statute.

Id. at 650–51 (footnotes omitted).4

We have not expressly considered the issue of section 410.258’s

application to judgments entered following completion of fully adversarial

proceedings. After examining the legislature’s intent as expressed in the words

of the statute, we agree with the Austin court that section 410.258 applies

only to judgments resulting from defaults or parties’ agreements or settlements.

See id. Specifically, like the Austin court, we conclude and hold that the
5... Our conclusion is strengthened by legislative history. The senate

research center’s analysis of the bill creating section 410.258 explained its

purpose:

Chapter 410 of the Labor Code currently allows insurance carriers

engaged in a workers’ compensation lawsuit to settle their case

and then claim that the settlement agreement reverses or modifies

an appeals panel decision awarding benefits. Carriers also use

judgments based on default or on an agreement of the parties to

accomplish the same end. Additionally, carriers sometimes attempt

to use these settlement agreements and judgments to seek

reimbursement through the Subsequent Injury Fund for any benefits

they may have provided to a claimant. This proposed legislation

prevents both of these practices.

. . . .

[The bill] would prevent the use of settlement agreements,

and judgments based on default or on an agreement of the parties,

to overturn appeals panel decisions.

Senate Research Ctr., Bill Analysis, Tex. H.B. 3137, 75th Leg., R.S. (1997).

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language contained in section 410.258(a)—applying the section to “any

proposed judgment or settlement made by the parties to the proceeding,

including a proposed default judgment”—expressed the legislature’s intention

that the TWCC receive notice of judgments made without judicial oversight or

without fully adversarial proceedings. See Tex. Lab. Code Ann. § 410.258(a);

Brooks, 269 S.W.3d at 651.5 We likewise conclude that the related provision

of the administrative code applies only to judgments entered apart from

completed adversarial proceedings because its terms limit the provision to a
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“proposed judgment or settlement” and to a court’s approval of an “agreement

or settlement.” 28 Tex. Admin. Code § 147.11(a), (b); see Cheatum v. Tex.

Workers’ Comp. Comm’n, No. 05-98-00846-CV, 2001 WL 100194, at *2

(Tex. App.—Dallas Feb. 7, 2001, no pet.) (not designated for publication)

(“In the case at bar, no agreement or settlement was reached; therefore,

[section] 147.11 does not apply.”).

As described above, the trial court’s judgment in this case followed a

contested trial in which Clewis, Safeco, and the TWCC all made appearances

and participated in the trial. Thus, we conclude that neither section 410.258

of the labor code nor title 28, section 147.11 of the administrative code apply

to the judgment and that it is therefore not void.

Jurisdiction

When the trial court loses plenary power over a judgment, it also

generally lacks the authority to vacate the judgment. See Tex. R. Civ. P.

329b(f); DeGroot v. DeGroot, 260 S.W.3d 658, 662 (Tex. App.—Dallas 2008,

no pet.) (explaining that “plenary power to grant a new trial or to vacate,

modify, correct, or reform a judgment is limited to a maximum of one hundred

and five days after the judgment is signed”). Proceedings related to the trial

court’s judgment after its plenary power has expired are generally beyond the

trial court’s jurisdiction. See In re Dickason, 987 S.W.2d 570, 571 (Tex. 1998)
12

(orig. proceeding); Coleman v. Sitel Corp., 21 S.W.3d 411, 413 (Tex.

App.—San Antonio 2000, no pet.) (holding that after the trial court’s plenary

power expired, the court had no jurisdiction to change or vacate its judgment);

Moore v. Brown, 993 S.W.2d 871, 874 (Tex. App.—Fort Worth 1999, pet.

denied) (stating that once “a trial court’s plenary power has expired, it has no

jurisdiction to modify or change its original judgment except by bill of review”);

see also State ex rel. Latty v. Owens, 907 S.W.2d 484, 486 (Tex. 1995)

(“Judicial action taken after the court’s jurisdiction over a cause has expired is

a nullity.”). Here, the trial court entered its final judgment in September 2000;

its plenary power to change or vacate the judgment had therefore expired well

before Clewis filed his motion to vacate. See generally Tex. R. Civ. P. 329b;

DeGroot, 260 S.W.3d at 662.

We are without jurisdiction to review a motion to vacate filed in the trial

court after that court’s plenary power has expired. See Shackelford v. Barton,

156 S.W.3d 604, 607 (Tex. App.—Tyler 2004, pet. denied) (explaining that an

“untimely motion to set aside a judgment provides no basis for consideration

on appeal”); Zarate v. Sun Operating Ltd., 40 S.W.3d 617, 623 (Tex.

App.—San Antonio 2001, pet. denied); Bahr v. Kohr, 928 S.W.2d 98, 100

(Tex. App.—San Antonio 1996, writ denied) (noting that an “appellate court’s

jurisdiction extends no further than the jurisdiction of the trial court”).
6... The Houston [First District] Court of Appeals has held that a trial

court’s plenary power does not expire when a judgment is void under section

410.258 because a trial court does not have jurisdiction to sign any judgment

in violation of that section. Metro. Transit Auth. v. Jackson, 212 S.W.3d 797,

803–04 (Tex. App.—Houston [1st Dist.] 2006, pet. denied) (concluding that

the trial court’s judgment, which was based on an agreement of the parties,

was void).

7... See Tex. R. App. P. 42.3(a).

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Because we hold that the trial court’s September 2000 judgment is not void6

and that the trial court did not have plenary power over that judgment when

Clewis filed his motion to vacate the judgment in 2007, we accordingly do not

have jurisdiction over this appeal, which relates to the proper denial of that

motion. See Shackelford, 156 S.W.3d at 607; Bahr, 928 S.W.2d at 100.

Conclusion 

Having determined that we lack jurisdiction over this appeal, we dismiss

the appeal for want of jurisdiction.7

TERRIE LIVINGSTON

JUSTICE

PANEL: CAYCE, C.J.; LIVINGSTON and WALKER, JJ.

DELIVERED: March 19, 2009