NO. 03-14-00808-CV

IN THE THIRD 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 Judicial District Court, Cause No. 269,135-B; 

before the Honorable Jack Weldon Jones

_______________________________________

APPELLEES’ BRIEF 

KEN PAXTON ADRIENNE BUTCHER

Attorney General of Texas Assistant Attorney General

 State Bar No. 24050363

CHARLES E. ROY Administrative Law Division

First Assistant Attorney General OFFICE OF THE ATTORNEY GENERAL

 P. O. Box 12548, Capitol Station

JAMES E. DAVIS Austin, Texas 78711-2548

Deputy Attorney General for Telephone: (512) 463-1410

Civil Litigation Facsimile: (512) 320-0167

 adrienne.butcher@texasattorneygeneral.gov

DAVID A. TALBOT, JR.

Chief, Administrative Law Division ATTORNEYS FOR APPELLEES 

July 27, 2015 ORAL ARGUMENT NOT REQUESTED

ACCEPTED

03-14-00808-CV

6243481

THIRD COURT OF APPEALS

AUSTIN, TEXAS

7/27/2015 5:28:11 PM

JEFFREY D. KYLE

CLERK

 FILED IN 3rd COURT OF APPEALS AUSTIN, TEXAS 7/27/2015 5:28:11 PM JEFFREY D. KYLE Clerk
TABLE OF CONTENTS

Index of Authorities..................................................................................iv

Statement of the Case ..............................................................................ix

Statement Regarding Oral Argument ......................................................x

Issue Presented ........................................................................................xi

Appellees’ Brief..........................................................................................1

Statement of Facts ....................................................................................2

I. Regulatory Background ..........................................................2

II. Morales’s Complaints..............................................................4

Summary of the Argument .......................................................................6

Argument...................................................................................................8

I. Morales’s Claim For Declaratory Relief Against the 

State Appellees is Barred by Sovereign Immunity. ...............9

A. The UDJA Does Not Waive Immunity For 

Statutory-Interpretation Claims Against a State 

Entity..............................................................................9

B. Labor Code Section 410.255 Does Not Waive 

Sovereign Immunity.....................................................15

C. Morales Failed to Plead a Proper Ultra Vires

Claim and Cannot Cure this Defect. ...........................16

D. Morales’s “Need to Bind the Division” Argument 

Lacks Merit. .................................................................19

II. Morales Seeks An Impermissible Redundant Remedy 

Through His UDJA Action....................................................21

ii
III. Morales Seeks Impermissible Advisory Opinions................22

Prayer ......................................................................................................24

Certificate of Compliance........................................................................26

Certificate of Service ...............................................................................26

iii
INDEX OF AUTHORITIES

Cases

Am. Motorists Ins. Co. v. Fodge,

63 S.W.3d 801 (Tex. 2001) .................................................................2

Andrade v. NAACP of Austin,

345 S.W.3d 1 (Tex. 2011)................................................................18

Bd. of Trs. of Galveston Wharves v. O’Rourke,

405 S.W.3d 228 (Tex. App.—Houston [1st Dist.] 2013, no pet.)....18

Beeman v. Livingston,

No. 13-0867, 2015 WL 4072404 (Tex. June 26, 2015) ...............8, 18

Cf. Combs v. Tex. Civil Rights Project,

410 S.W.3d 529 (Tex. App.—Austin 2013, pet. denied)...........16, 17

City of El Paso v. Heinrich,

284 S.W.3d 366 (Tex. 2009).................................................... passim

City of LaPorte v. Barfield,

898 S.W.2d 288 (Tex. 1995)............................................................14

City of McKinney v. Hank’s Restaurant Grp.,

412 S.W.3d 102 (Tex. App.—Dallas 2013, no pet.)..................10, 14

Cont’l Cas. Ins. Co. v. Functional Restoration Assocs.,

19 S.W.3d 393 (Tex. 2000)........................................................14, 15

Creedmoor-Maha Water Supply Corp. v. Tex. Comm’n on Envtl. Quality,

307 S.W.3d 505 (Tex. App.—Austin 2010, no pet.) .......................17

DeLeon v. Royal Indem. Co.,

396 S.W.3d 597 (Tex. App.—Austin 2010, rev’d on other grounds, 

396 S.W.3d 527 (Tex. 2012)............................................................12

iv
Dir. of Dep’t of Agric. & Env’t v. Printing Indus. Ass’n,

600 S.W.2d 264 (Tex. 1980)............................................................10

Harvel v. Texas Dep't of Ins., Div. of Workers’ Comp., No. 13-14-00095-

CV, 2015 WL 3637823 (Tex. App.—Corpus Christi June 11, 2015, 

no pet. h.).............................................................................. x, 20, 22

Houston Lighting & Power Co. v. Dickinson Indep. Sch. Dist., 

641 S.W.2d 302 (Tex. App.—Houston [14th Dist.] 1982, writ ref’d 

n.r.e.)...............................................................................................19

Huey v. Huey,

200 S.W.3d 851 (Tex. App.—Dallas 2006, no pet.)........................19

In re Crawford & Co.,

458 S.W.3d 920 (Tex. 2015) (per curiam) ........................................2

In re Sw. Bell Tel. Co., L.P.,

235 S.W.3d 619 (Tex. 2007)............................................................22

Jackson v. State Office of Admin. Hr’gs,

351 S.W.3d 290 (Tex. 2011)............................................................22

Kupchynsky v. Nardiello,

230 S.W.3d 685 (Tex. App.—Dallas 2007, pet. denied)...........18, 19

MBM Fin. Corp. v. Woodlands Operating Co., L.P.,

292 S.W.3d 660 (Tex. 2009)............................................................22

Mid-Century Ins. Co. v. Tex. Workers’ Comp. Comm'n,

187 S.W.3d 754 (Tex. App.—Austin 2006, no pet.) .................12, 13

Nat'l Am. Ins. Co. v. Tex. Prop. & Cas. Ins. Guar. Ass'n,

No. 03-09-00680-CV, 2013 WL 4817637 (Tex. App.—Austin Aug. 

28, 2013, no pet.) (mem. op.) ..........................................................12

v
Patel v. Tex. Dep’t of Licensing & Reg.,

No. 12-0657, 2015 WL 3982687 

(Tex. June 26, 2015)............................................................. 9, 10, 22

Patterson v. Planned Parenthood of Houston & Se. Tex., Inc.,

971 S.W.2d 439 (Tex. 1998)............................................................23

Prairie View A & M Univ. v. Chatha,

381 S.W.3d 500 (Tex. 2012)..............................................................8

Rusk State Hosp. v. Black,

392 S.W.3d 88 (Tex. 2012)................................................................8

Short v. W.T. Carter & Bro.,

126 S.W.2d 953 (Tex. 1938)............................................................10

Smith v. 241st Dist. Ct. of Smith Cnty.,

No. 03-13-00719-CV, 2015 WL 1611703 (Tex. App.—Austin Apr. 9, 

2015, no pet.) (mem. op.)................................................................17

SWEPI LP v. R.R. Comm’n,

314 S.W.3d 253 (Tex. App.—Austin 2010, pet. denied).................22

Tex. Ass’n of Bus. v. Tex. Air Control Bd.,

852 S.W.2d 440 (Tex. 1993)..............................................................8

Tex. Comm’n of Licensing & Reg. v. Model Search Am., Inc.,

953 S.W.2d 289 (Tex. App.—Austin 1997, no writ).......................17

Tex. Dep’t of Ins. v. Reconveyance Servs., Inc.,

306 S.W.3d 256 (Tex. 2010)............................................................11

Tex. Dep’t of State Health Servs. v. Balquinta,

429 S.W.3d 726 (Tex. App.—Austin 2014, pet. dism’d).................21

Tex. Dep’t of Transp. v. Sefzik,

355 S.W.3d 618 (Tex. 2011).................................................. 9, 12, 13

vi
Tex. Logos, L.P. v. Tex. Dep’t of Transp.,

241 S.W.3d 105 (Tex. App.—Austin 2007, no pet.) .......................18

Tex. State Bd. of Veterinary Med. Exam’rs v. Giggleman,

408 S.W.3d 696 (Tex. App.—Austin 2013, no pet.) .......................21

Tex. Dep't of Ins., Div. of Workers’ Comp. v. Lumbermens Mut. Cas. Co.,

212 S.W.3d 870 (Tex. App.—Austin 2006, pet. denied)..... 10, 11, 12

Tex. Lottery Comm'n v. First State Bank of DeQueen,

325 S.W.3d 628 (Tex. 2010)......................................................13, 14

Tex. Workers’ Comp. Ins. Fund v. Tex. Workers’ Comp. Comm'n,

124 S.W.3d 813 (Tex. App.—Austin 2003, pet. denied).................13

Trinity Settlement Servs., LLC v. Tex. State Sec. Bd.,

417 S.W.3d 494 (Tex. App.—Austin 2013, pet. denied)...........23, 24

United States v. Morgan,

313 U.S. 409 (1941) ........................................................................20

Vanderwerff v. Tex. Dep't of Ins., Div. of Workers’ Comp. et al.,

No. 05-15-00195-CV (Tex. App.—Dallas filed Feb. 17, 2015). ........x

VanderWerff v. Tex. Bd. of Chiropractic Exam’rs,

No. 03-12-00711-CV, 2014 WL 7466814 (Tex. App.—Austin Dec. 18, 

2014, no pet.) (mem. op.)...................................................... 7, 18, 24

vii
Statutes

Tex. Lab. Code Ann.

§ 402.001.....................................................................................3, 19

§ 408.142(a) ..................................................................................3, 4

§ 410.002.......................................................................................2, 3

§ 410.151(a) ......................................................................................3

§ 410.151(b) ......................................................................................3

§ 410.169...........................................................................................3

§ 410.202(a) ......................................................................................3

§ 410.251......................................................................... 3, 15, 20, 21

§ 410.254.....................................................................................3, 15

§ 410.255.....................................................................................6, 15

§ 410.255(a) ......................................................................................7

§ 410.301(a) ..................................................................................4, 7

§ 410.302(b) ......................................................................................3

Tex. Gov't Code Ann.

§ 311.034................................................................................. passim

§ 2001.038.........................................................................................9

Tex. Civ. Prac. & Rem. Code Ann. 

§ 37.006(b) ..................................................................................9, 14

Rules

Tex. R. App. P. 38.1(i)..............................................................................18

viii
STATEMENT OF THE CASE

Nature of the Case: Morales appeals the trial court’s grant of the State 

Appellees’ plea to the jurisdiction. C.R. at 287. 1 

In the proceedings below, Morales sought judicial 

review of the Division’s administrative decision in a 

contested-case hearing between Morales and Texas 

Mutual Insurance Carrier (“TMIC”) regarding 

Morales’s benefits. He also sought declaratory 

judgment against the State Appellees and TMIC, 

which is not a party to this interlocutory appeal. 

C.R. at 49–52.

Trial Court: The Honorable Jack Weldon Jones, 146th Judicial 

District Court, Bell County, Texas.

Course of Proceedings: Morales brought his judicial review suit and 

declaratory judgment action against the State 

Appellees and TMIC. C.R. at 4, 47. The State 

Appellees filed a plea to the jurisdiction seeking 

dismissal from the case as defendants and further 

seeking dismissal of Morales’s claims for 

declaratory relief. C.R. at 95. TMIC also filed a 

plea to the jurisdiction. C.R. at 141.

Trial Court Disposition: The trial court granted both pleas to the jurisdiction. 

C.R. at 287–88.

1 Citations to the Clerk’s Record are designated as “C.R. at,” followed by page number. 

Unless individually designated, the term “State Appellees” refers collectively to the Texas 

Department of Insurance, Division of Workers’ Compensation (individually, the “Division”) and 

Commissioner Brannan, in his official capacity (individually, the “Commissioner”).

ix

 
STATEMENT REGARDING ORAL ARGUMENT

The Thirteenth Court of Appeals recently decided the sole issue presented 

here in a nearly identical appeal, Harvel v. Texas Department of Insurance, Division 

of Workers’ Compensation, No. 13-14-00095-CV, 2015 WL 3637823 (Tex. App.—

Corpus Christi June 11, 2015, no pet. h.). See App. A. Harvel was represented by 

the same attorney now representing Morales and presented the same issue and legal 

arguments Morales now presents against the same State Appellees. After hearing 

oral argument, the Harvel court issued a memorandum opinion that it subsequently 

reissued as a published opinion, following the Division’s motion based on the 

existence of this case and another similar case pending before the Fifth Court of 

Appeals, Vanderwerff v. Texas Department of Insurance, Division of Workers’ 

Compensation et al., No. 05-15-00195-CV (Tex. App.—Dallas filed Feb. 17, 

2015).

2 See App. B (Appellant Vanderwerff’s Brief reflecting nearly identical

arguments). 

Because Harvel and case law from both this Court and the Texas Supreme 

Court squarely address the sole issue Morales presents in this appeal, the Division 

does not believe oral argument is necessary to aid the Court in deciding Morales’s 

2 All cases state the same issue, and the respective appellants’ briefing—all of whom were 

represented by the same counsel—is nearly identical, aside from minor edits and renumbered subissues. In fact, portions of Morales’s Brief appear to have been recycled from the Vanderwerff

brief, despite their inapplicability here. See, e.g., Br. of Appellant 6 (erroneously stating that the 

State Appellees intervened in this case, which was the case in Vanderwerff but not here).

x

 
issue. However, if the Court decides to hear argument, Appellees would welcome

the opportunity to orally present their case to the Court.

ISSUE PRESENTED

Morales sought judicial review of the Division’s decision regarding his 

impairment rating in a workers’ compensation benefits dispute with TMIC. He also 

sought a declaration under the Uniform Declaratory Judgments Act (“UDJA”) that 

“spinal surgeries and the effects of such surgeries occurring prior to maximum 

medical improvement must be considered in assigning impairment ratings under the 

Texas Workers’ Compensation Act and under the AMA Guides and that any 

impairment ratings that do not consider such surgeries are invalid.” C.R. at 53.

The issue in this interlocutory appeal is whether the trial court properly 

dismissed Morales’s UDJA claim for lack of jurisdiction. Morales presents his 

sole issue in 18 sub-issues, many of which overlap. In the interest of efficiency, the 

State Appellees will address Morales’s arguments in three primary parts, arguing 

that Morales’s claims against them: (1) are barred by sovereign immunity; (2) seek 

an impermissible redundant remedy; and (3) are unripe requests for advisory 

opinions.

xi
NO. 03-14-00808-CV

IN THE THIRD 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 Judicial District Court, Cause No. 269,135-B;

before the Honorable Jack Weldon Jones

_______________________________________

APPELLEES’ BRIEF

TO THE HONORABLE THIRD COURT OF APPEALS:

The State Appellees respectfully submit their brief in response to Morales’s 

Appellant’s Brief. In support thereof, the State Appellees show as follows: 

Texas law provides no general right to judicial review of executive action,

aside from constitutional claims. Underscoring that principle, the Texas Supreme 

Court authorized the Legislature to waive the State’s sovereign immunity, and the 

Legislature in turn has required that the courts strictly construe statutory waivers. 

When a statute does clearly and unambiguously authorize suit against the State, a 

1
party invoking that waiver must properly plead it. Additionally, a person cannot 

unilaterally demand that a court opine on disputes that he or other unknown persons 

have (or one day may have) with the State.

Morales’s claims run headlong into these jurisdictional obstacles. He 

contends that the UDJA waives the State’s immunity for claims seeking a declaration 

of his rights under various statutes, but this Court, the Texas Supreme Court, and 

other Texas courts have already rejected that argument. The trial court, recognizing 

the jurisdictional obstacles, correctly dismissed Morales’s claims for want of 

jurisdiction, and this Court should affirm.

STATEMENT OF FACTS

I. REGULATORY BACKGROUND

The Texas Workers’ Compensation Act (the “Act”) provides a 

“comprehensive system for resolving workers’ compensation claims.” In re 

Crawford & Co., 458 S.W.3d 920, 923 (Tex. 2015) (per curiam). “The [Division] 

has jurisdiction of disputes over income benefits, preauthorization of medical care, 

and reimbursement of medical expenses.” Am. Motorists Ins. Co. v. Fodge, 63 

S.W.3d 801, 803 (Tex. 2001) (footnotes omitted).

Chapter 410 of the Act governs multi-step proceedings “to determine the 

liability of an insurance carrier for compensation for an injury or death under” the 

Act. Tex. Lab. Code Ann. § 410.002 (West 2015). The first step in a dispute is 

2
participation in a benefit review conference. See id. § 410.024(a). If the 

conference does not resolve the dispute, a party “is entitled to a contested case 

hearing” conducted by a hearing officer. Id. § 410.151(a). The hearing generally 

may consider only issues that were raised or resolved at the conference. Id.

§ 410.151(b). The final step in the administrative process is to appeal the hearing 

officer’s decision to an appeals panel. Id. § 410.202(a). Issues (and decisions) not 

administratively appealed become final. See id. § 410.169. Only after completing

this administrative process may a party “aggrieved by a final decision of the appeals 

panel” seek judicial review, and then only on issues presented during the 

administrative dispute resolution process. Id. §§ 410.251, 410.302(b).

Significantly, the Division is not a party to a suits for judicial review, and 

there is no clear and unambiguous legislative waiver of sovereign immunity against 

the Division in cases seeking judicial review of its decisions. See Tex. Gov’t Code 

Ann. § 311.034 (West 2013). The Legislature did provide the Division with a 

statutory right to intervene in workers’ compensation cases. Tex. Lab. Code Ann.

§ 410.254. The intervention authority furthers the Division’s legislativelymandated duties to oversee the Workers’ Compensation Act. See id. § 402.001. 

Nothing therein states a clear and unambiguous waiver of the State Appellees

immunity. See Tex. Gov’t Code Ann. § 311.034.

3
II. MORALES’S COMPLAINTS

In the underlying case, Morales sought workers’ compensation benefits 

following a work-related injury. The only substantive, benefits-related issue before 

the Division was Morales’s impairment rating, as assigned by the designated doctor 

in his case. Impairment ratings impact the duration and amount of benefits that a 

workers’ compensation claimant receives. See, e.g., Tex. Lab. Code Ann. 

§ 408.142(a).

Morales disagreed with his designated doctor’s assigned impairment rating 

and asked the Division to find one assigned by another medical doctor. See C.R. at

49, ¶¶ 10–11. The Division found that the preponderance of the evidence was not 

contrary to the designated doctor’s impairment rating, and Morales sought judicial 

review of that decision. C.R. at 9 (Appeal’s Panel January 27, 2014 Decision 

adopting Hearing Officer’s Decision and Order); see also C.R. at 13-18 (Decision 

and Order).

Morales timely filed a suit for judicial review of the Division’s decision. See 

Tex. Lab. Code Ann. § 410.301(a); C.R. at 4. However, he also tacked a 

declaratory judgment (UDJA) action onto his judicial review suit and subsequently

amended his pleadings, adding the State Appellees as alleged necessary partydefendants. C.R. at 47. The State Appellees—a state agency and a state officer 

sued in his official capacity for whom sovereign immunity has not been waived—

4
are not proper parties to either Morales’s judicial review suit or to his improper 

UDJA claim.

3

Through his UDJA claim, Morales sought broad declarations regarding 

impairment rating calculations in cases in which spinal surgeries have been 

performed, proclaiming that his requested declaratory relief was necessary because 

the State Appellees and TMIC “have misinterpreted and failed to properly apply the 

law.” C.R. at 50, ¶ 13. The trial court is already reviewing the Division’s decision 

through the statutorily authorized judicial review suit against TMIC before the trial 

court. As discussed below, Morales ultimately seeks redundant relief to his judicial 

review suit through an improper UDJA claim that fails to challenge the validity of a 

statute or plead cognizable ultra vires actions. C.R. at 49, ¶¶ 12-18. He also 

appears to seek prospective advisory relief, which the UDJA does not countenance.

Because of these defects, the State Appellees filed a plea to the jurisdiction, 

as did TMIC. C.R. at 95, 141. The trial court granted the pleas after a hearing, 

dismissed Morales’s UDJA action, and dismissed the State Appellees from the 

remaining judicial review suit. C.R. at 287–88. This interlocutory appeal 

followed.

3 Morales and TMIC, his former employer’s workers’ compensation insurance carrier, were 

the proper parties to Morales’s judicial review suit. They remain parties to that suit, which is still 

pending before the trial court.

5

 
SUMMARY OF THE ARGUMENT4

Morales ultimately seeks declaratory judgment to interpret statutes and 

challenge the Division’s decision in his contested case against TMIC, which decision 

the trial court is currently reviewing through the statutory process provided by the 

Labor Code. The trial court correctly concluded that it lacked jurisdiction over 

Morales’s appended UDJA claims, since he failed to overcome the State Appellees’ 

entitlement to sovereign immunity and sought improper redundant and prospective 

remedies through his UDJA claim. It further correctly dismissed the State 

Appellees from this suit, as no legislative waiver of sovereign immunity permits 

Morales to hale the State Appellees as defendants into a judicial review suit of the 

Division’s decisions.

In attempting to overcome his immunity bar, Morales incorrectly urges the 

application of three immunity waivers, all of which fail. First, the UDJA does not 

waive the State’s immunity for claims seeking an interpretation of, or a declaration 

of rights under, a statute—yet that is the relief Morales expressly seeks. Second, 

Labor Code section 410.255 does not waive immunity but merely prescribes how a 

4 Morales incorrectly states in his Summary of the Argument that the State Appellees 

intervened in this suit. Br. of Appellant 6–7. In fact, Morales named the State Appellees as 

defendants and alleged necessary parties in his First Amended Petition, Request for Declaratory 

Judgment & Request for Disclosure. C.R. at 47, 48 ¶ 5. The State Appellees never intervened

in this suit, and Morales’s statement is incorrect.

6

 
court reviews certain issues that were resolved in workers’ compensation appealspanel decisions. See Tex. Lab. Code Ann. § 410.255(a) (“For all issues other than 

those covered under Section 410.301(a), judicial review shall be conducted in the 

manner provided for judicial review of a contested case under Subchapter G, Chapter 

2001, Government Code.”). Third, Morales failed to plead a proper ultra vires

claim because he included the wrong defendants; did not allege any actions by the 

State Appellees that were outside their statutory authority5

; impermissibly targeted

the Commissioner’s Hearing Officer’s exercise of discretion; and made no effort to 

show that his claims are viable. Finally, his requested declarations are 

impermissible attempts to control state action.

Morales’s UDJA claims are also jurisdictionally barred because the issues 

raised therein are also the subject of his judicial-review suit and precluded under the

redundant-remedies doctrine. He also seeks impermissible advisory opinions, 

requesting sweeping declarations that go beyond any present or imminent dispute he 

has with the State Appellees or TMIC. Courts cannot adjudicate such broad, unripe 

claims.

5 VanderWerff v. Tex. Bd. of Chiropractic Exam’rs, No. 03-12-00711-CV, 2014 WL 

7466814, at *2–3 n.4 (Tex. App.—Austin Dec. 18, 2014, no pet.) (mem. op.) (noting that “litigants 

may not employ declaratory-judgment actions to obtain impermissible advisory opinions seeking 

to interpret statutes or agency rules”).

7

 
ARGUMENT

“Subject matter jurisdiction is essential to the authority of a court to decide a 

case.” Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 443 (Tex. 1993). 

To file suit against the State, a plaintiff must establish the State’s consent to suit, for 

“sovereign immunity deprives courts of subject-matter jurisdiction.” Rusk State 

Hosp. v. Black, 392 S.W.3d 88, 95 (Tex. 2012); Beeman v. Livingston, No. 13-0867,

2015 WL 4072404, at *5 (Tex. June 26, 2015) (“A plaintiff who sues the State must 

demonstrate that the State has consented to the suit; otherwise the suit is barred by 

sovereign immunity.”).

The Supreme Court has “repeatedly affirmed that any purported statutory 

waiver of sovereign immunity should be strictly construed in favor of retention of 

immunity.” Prairie View A & M Univ. v. Chatha, 381 S.W.3d 500, 513 (Tex. 

2012); see Tex. Gov’t Code Ann. § 311.034 (“In order to preserve the legislature’s 

interest in managing state fiscal matters through the appropriations process, a statute 

shall not be construed as a waiver of sovereign immunity unless the waiver is 

effected by clear and unambiguous language.”). Even where the State is not 

immune, the burden remains on the plaintiff to show that no jurisdictional obstacles

exist. See Tex. Ass’n of Bus., 852 S.W.2d at 446.

Declaratory judgment suits, or UDJA actions, may only be brought where a 

statute or rule or its application interferes with or impairs, or threatens to interfere 

8
with or impair, a legal right or privilege of the plaintiff. Tex. Gov’t Code Ann. 

§ 2001.038 (West 2008). The Texas Supreme Court has recently addressed UDJA 

actions in two instructive cases, discussed below. Accordingly, the trial court 

properly dismissed Morales’s UDJA claims.

I. MORALES’S CLAIM FOR DECLARATORY RELIEF AGAINST THE STATE 

APPELLEES IS BARRED BY SOVEREIGN IMMUNITY.

A. The UDJA Does Not Waive Immunity For StatutoryInterpretation Claims Against a State Entity.

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. Tex. Civ. Prac. & Rem. Code Ann. § 37.006(b) (West 2014); 

see Patel v. Tex. Dep’t of Licensing & Reg., No. 12-0657, 2015 WL 3982687, at *8–

9 (Tex. June 26, 2015); Tex. Dep’t of Transp. v. Sefzik, 355 S.W.3d 618, 621–22 

(Tex. 2011) (clarifying that “the UDJA does not waive the state’s sovereign 

immunity when the plaintiff seeks a declaration of his or her rights under a statute 

or other law.”).

9
A claimant may pursue declaratory relief against a state official in his official 

capacity only when the official is alleged to have acted without legal authority or to 

have failed to perform a purely ministerial act or when a statute or rule used by state 

officers is unconstitutional. See Patel, 2015 WL 3982687 at *4; City of El Paso v. 

Heinrich, 284 S.W.3d 366, 372 (Tex. 2009). When a plaintiff fails even to allege 

such conduct, the suit is one against the State and should be dismissed. Dir. of 

Dep’t of Agric. & Env’t v. Printing Indus. Ass’n, 600 S.W.2d 264, 265–66, 270 (Tex. 

1980); Short v. W.T. Carter & Bro., 126 S.W.2d 953, 959, 962–63, 965 (Tex. 1938).

The Fifth Court of Appeals recently surveyed Texas Supreme Court law and held 

that the UDJA “does not waive immunity against claims seeking a declaration of the 

claimant’s statutory rights” or “against a claim that government actors have violated 

the law.” City of McKinney v. Hank’s Restaurant Grp., 412 S.W.3d 102, 112 (Tex. 

App.—Dallas 2013, no pet.).

6

Morales relies heavily on this Court’s decision in Texas Department of 

Insurance, Division of Workers’ Compensation v. Lumbermens Mutual Casualty 

Company, 212 S.W.3d 870 (Tex. App.—Austin 2006, pet. denied). See Br. of 

6 Nothing in the Supreme Court’s recent Patel decision affects this conclusion. Patel

considered a due-course-of-law challenge to licensing statutes and regulations regarding eyebrow 

threading. Patel, 2015 WL 3982687 at *1–2. The Supreme Court held that, because the 

plaintiffs contested “the validity” of the laws, id. at *9 (emphasis added), the state entities were 

not immune. By contrast, Morales does not dispute the validity of any statute. Thus, Patel is 

immaterial.

10

 
Appellant 11. This reliance is misplaced, as Lumbermens is clearly distinguishable. 

Lumbermens was a declaratory judgment action addressing Division-issued 

advisories, which action had been severed from an underlying judicial review suit 

applying the advisories to a particular case. Id. at 874. The advisories themselves

were at issue, and the insurance carrier plaintiffs sought a declaration that the 

Division acted outside its authority in issuing them, alleging that the Division 

improperly modified the Guides to the Evaluation of Permanent Impairment. Id.

This Court concluded that the carriers had properly pleaded an ultra vires

action that gave the trial court jurisdiction over their request for declaratory relief. 

Id. at 875. Thus, Lumbermens is properly viewed as an ultra vires suit, not one for 

which the UDJA itself waived immunity.7

 There are no advisories or ultra vires

actions at issue in this case. An ultra vires exception in a UDJA suit “must not 

complaint of a government officer’s exercise of discretion, but rather must allege, 

and ultimately prove, that the officer acted without legal authority or failed to 

perform a purely ministerial act.” Tex. Dep’t of Ins. v. Reconveyance Servs., Inc., 

306 S.W.3d 256, 258 (Tex. 2010). Moreover, even if Lumbermens held what 

7 Lumbermens allowed the claim to proceed against the Division, as opposed to the 

Commissioner; Heinrich later clarified that ultra vires claims must be brought against a state 

official not an agency. 284 S.W.3d at 372–73.

11

 
Morales claims, it cannot be squared with the Supreme Court’s subsequent Sefzik

and Heinrich decisions clarifying UDJA actions against the State.

8

Additionally, in National American Insurance Company v. Texas Property & 

Casualty Insurance Guaranty Association (herein “NAIC”), on which Morales also 

relies, the plaintiff’s petition included requests “to declare its rights and status under 

certain statutory provisions.” No. 03-09-00680-CV, 2013 WL 4817637, at *4 (Tex. 

App.—Austin Aug. 28, 2013, no pet.) (mem. op.). The NAIC case involved a 

dispute originally between two insurance carriers over which of two companies 

employed injured workers and was thus obligated to pay their benefits and which of 

two conflicting statutes controlled. Id. at *2. The NAIC court never addressed 

sovereign immunity under the UDJA. Thus, it is also distinguishable.

Similarly, Mid-Century Insurance Company v. Texas Workers’ Compensation 

Commission, 187 S.W.3d 754 (Tex. App.—Austin 2006, no pet.), is an action 

seeking a declaration that the Division had acted in excess of its statutory authority

8 Interestingly, while Morales relies on Lumbermens to claim this Court recognizes the type 

of UDJA action he brings here, he also asserts that it was decided wrongly, citing DeLeon v. Royal 

Indemnity Company, 396 S.W.3d 597 (Tex. App.—Austin 2010, rev’d on other grounds, 396 

S.W.3d 527 (Tex. 2012). He states this Court attempted to distance itself from alleged 

Lumbermens dicta that “the DWC and the DWC Commissioner have used . . . inappropriately to 

try to exclude all spinal surgeries, even pre-MMI, from consideration (and this is evidently taught 

to a number of designated doctors). Br. of Appellant 25–30. Again, the proper avenue for review 

of the Division’s decisions—including the calculation of impairment ratings in spinal surgery 

cases—is through the courts through a properly filed judicial review suit.

12

 
in relation to a Division rule. Therein, an insurance carrier sued for a declaration 

that a Division-promulgated rule concerning lifetime income benefits exceeded its 

statutory authority. Id. at 756. This case concerns no Division rule but rather the 

Division’s adjudication of Morales’s contested administrative case.

In Texas Workers’ Compensation Insurance Fund v. Texas Workers’ 

Compensation Commission, 124 S.W.3d 813 (Tex. App.—Austin 2003, pet. denied), 

although the Division challenged the trial court’s jurisdiction to issue a declaratory 

judgment that Texas Mutual sought in connection with its suit for judicial review, 

the court of appeals did not address whether a plaintiff can bring a UDJA claim to 

interpret a statute. In fact, the court there sustained the State’s argument that the 

district court erred by “allowing Texas Mutual to bring a declaratory-judgment 

action when judicial-review remedies are expressly provided for under chapter 410.” 

Id. at 819, 824–25. These cases fail to advance Morales’s arguments.

Morales also erroneously relies on Texas Lottery Commission v. First State 

Bank of DeQueen, 325 S.W.3d 628 (Tex. 2010). Although some courts have 

interpreted DeQueen to suggest that the UDJA waives the State’s immunity for suits 

“involving statutory interpretation,” 325 S.W.3d at 634, the Supreme Court since 

clarified that “the UDJA does not waive the state’s sovereign immunity when the 

plaintiff seeks a declaration of his or her rights under a statute or other law.” Sefzik, 

355 S.W.3d at 621; Heinrich, 284 S.W.3d at 372–73 & n.6. As the Fifth Court of 

13
Appeals recognized in Hank’s, the law on the UDJA’s waiver “evolv[ed]” since 

DeQueen. Hanks, 412 S.W.3d at 111. It has not evolved to permit Morales’s 

present UDJA action.

The case law restricting Morales’s UDJA action reflects sound, longstanding 

public policy in Texas. Sovereign immunity waivers must be strictly construed and 

“effected by clear and unambiguous language.” Tex. Gov’t Code Ann. § 311.034. 

That principle “applies to both the existence and the extent of the waiver.” City of 

LaPorte v. Barfield, 898 S.W.2d 288, 297 (Tex. 1995), superseded by statute on 

other grounds. Nothing in section 37.006(b)’s text mentions challenges regarding 

a statute’s interpretation or application, such as the challenge Morales admittedly 

brings. Additionally, “[i]t is well recognized under Texas law that there is no right 

to judicial review of an administrative order unless a statute provides a right or unless 

the order adversely affects a vested property right or otherwise violates a 

constitutional right.” Cont’l Cas. Ins. Co. v. Functional Restoration Assocs., 19 

S.W.3d 393, 397 (Tex. 2000). Interpreting the UDJA to allow a plaintiff into court 

any time he wants to challenge an agency’s action or interpretation would eviscerate 

that well-recognized principle of Texas law.

For all the foregoing reasons, the trial court properly dismissed Morales’s

claims for lack of jurisdiction.

14
B. Labor Code Section 410.255 Does Not Waive Sovereign Immunity.

Morales also incorrectly cites Labor Code section 410.255 as an independent 

basis for waiver of the State’s immunity. Br. of Appellant 15–17. Section 410.255 

does not waive the State’s immunity. Immunity waivers must employ “clear and 

unambiguous language.” Tex. Gov’t Code Ann. § 311.034. Section 410.255 does 

not even provide a right to judicial review, let alone clearly and unambiguously 

waive the State Appellees’ immunity. Rather, it “simply prescribes the manner of 

judicial review” granted by section 410.251. Cont’l Cas., 19 S.W.3d at 398. 

Section 410.251 allows review only of “a final decision of the appeals panel” 

(assuming the administrative process has been exhausted). Tex. Lab. Code Ann.

§ 410.251. There is no mention of waiver or even of mandatory joinder of the 

Division or Commissioner.

That the Legislature did not waive the State’s immunity through section 

410.255 (or section 410.251) makes sense in light of other Labor Code provisions. 

Rather than making the State a party to judicial review suits, 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. Appellees therefore remain immune to Morales’s claims.

15
C. Morales Failed to Plead a Proper Ultra Vires Claim and Cannot 

Cure this Defect.

Morales also appears to suggest that he can avail himself of the ultra vires

exception to sovereign immunity. Br. of Appellant 12–14. A plaintiff may assert 

an ultra vires claim where a state officer is failing “to comply with statutory or 

constitutional provisions.” Heinrich, 284 S.W.3d at 372. The “suit must not 

complain of a government officer’s exercise of discretion, but rather must allege, 

and ultimately prove, that the officer acted without legal authority or failed to 

perform a purely ministerial act.” Id. The proper defendant is the state officer, not 

the governmental entity, and the plaintiff may obtain only prospective injunctive 

relief. Id. at 372, 374. Morales’s requests for declaratory relief do not fit these 

strictures.

First, Morales named the wrong defendants. Since an ultra vires suit may 

proceed only against an official, not an agency, the Division is clearly an improper 

party. See id. Morales further fails to allege any actions by the Commissioner that 

could even arguably support an ultra vires claim against him. Rather, Morales

complains of a decision by a Division appeals panel, not the Commissioner. See 

id.; Cf. Combs v. Tex. Civil Rights Project, 410 S.W.3d 529, 538 (Tex. App.—Austin 

2013, pet. denied) (“Injunctive relief is ‘not available to prevent commission of 

wrongs not imminently threatened’ or to require general compliance with the law.”).

16
Second, to the extent Morales complains about any administrative decisions

already rendered, ultra vires claims allow only prospective relief. See, e.g., 

Heinrich, 284 S.W.3d at 374 (explaining that ultra vires claim does not lie where 

“[t]he only injury the [plaintiff] allege[s] has already occurred” (first alteration in 

original) (citation and internal quotation marks omitted)); Smith v. 241st Dist. Ct. of 

Smith Cnty., No. 03-13-00719-CV, 2015 WL 1611703, at *2 (Tex. App.—Austin 

Apr. 9, 2015, no pet.) (mem. op.) (“[C]laims for injunctive and declaratory relief, 

based on past actions, are retrospective claims.”); Combs, 410 S.W.3d at 537–38

(“[A]ny declaration as to whether [Comptroller’s] past conduct exceeded her legal 

authority is purely retrospective in nature and therefore could not constitute valid 

ultra vires relief.”).

Third, Morales at best complains about the State Appellees’ exercise of 

discretion, for they plainly have authority to administer and interpret the Workers’ 

Compensation Act and its dispute-resolution procedures. His complaints, 

generously read, would still be “allegations that [the agency] reached an incorrect or 

wrong result when exercising its delegated authority, not facts that would 

demonstrate [the agency] exceeded that authority.” Creedmoor-Maha Water 

Supply Corp. v. Tex. Comm’n on Envtl. Quality, 307 S.W.3d 505, 517–18 (Tex. 

App.—Austin 2010, no pet.); see also, e.g., Tex. Comm’n of Licensing & Regulation

v. Model Search Am., Inc., 953 S.W.2d 289, 292 (Tex. App.—Austin 1997, no writ)

17
(“[State officers] had the undoubted authority to interpret the Act’s provisions and 

to make a decision in that regard. That they ‘might decide wrongly . . . does not 

vitiate’ their authority to make a decision.” (citation omitted)); cf. VanderWerff, 

2014 WL 7466814, at *3 (holding that plaintiff cannot use ultra vires claim through 

UDJA to collaterally attack administrative decision). Morales improperly attempts 

to control state action.9

Finally, to properly invoke the ultra vires exception, Morales must show that 

his claims are “viable.” Andrade v. NAACP of Austin, 345 S.W.3d 1, 11 (Tex. 

2011); see Beeman, 2015 WL 4072404, at *15 (dismissing ultra vires claim for want 

of jurisdiction because plaintiff failed to show that defendant official violated 

statutory duty). He makes essentially no effort to meet this requirement. Although 

he recounts the declarations he seeks, see Br. of Appellant 5, he never explains how 

the Commissioner’s interpretations of the statutes are outside his authority (or, again, 

when the Commissioner took any action in this regard).

Accordingly, even if the ultra vires claims somehow could overcome all the 

other problems discussed in this brief, they would be waived for inadequate briefing. 

See, e.g., Tex. R. App. P. 38.1(i); Kupchynsky v. Nardiello, 230 S.W.3d 685, 692 

9 See Bd. of Trs. of Galveston Wharves v. O’Rourke, 405 S.W.3d 228 (Tex. App.—Houston 

[1st Dist.] 2013, no pet.); Tex. Logos, L.P. v. Tex. Dep’t of Transp., 241 S.W.3d 105, 118 (Tex. 

App.—Austin 2007, no pet.).

18

 
(Tex. App.—Dallas 2007, pet. denied) (“Other than a general cite to one case stating 

the elements of the cause of action and the restatement of torts, appellants make no 

argument that the cause of action is so limited. Under these circumstances, we 

conclude this issue is inadequately briefed.”); Huey v. Huey, 200 S.W.3d 851, 854 

(Tex. App.—Dallas 2006, no pet.) (“We have no duty to brief appellant’s issue for 

her. Failure to cite applicable authority or provide substantive analysis waives an 

issue on appeal.”). Morales cannot satisfy his burden to establish jurisdiction 

merely by reciting the term “ultra vires.”

D. Morales’s “Need to Bind the Division” Argument Lacks Merit.

Morales also attempts to circumvent his jurisdictional defects by relying on a 

vague derogatory policy argument that declaratory relief is necessary to bind the 

State Appellees, who he accuses, without foundation, of “hiding” from the law and 

purposely avoiding clear statutory construction. See Br. of Appellant, passim. As 

addressed above, the Division serves in an adjudicative capacity in workers’ 

compensation disputes, pursuant to its duties under the Labor Code. Tex. Lab. 

Code Ann. § 402.001. It is disinterested in the particular disputes before it—much 

like this Court—with no reason to “misinterpret” the law. See Houston Lighting & 

Power Co. v. Dickinson Indep. Sch. Dist., 641 S.W.2d 302, 309 (Tex. App.—

Houston [14th Dist.] 1982, writ ref’d n.r.e.) (explaining that, “[w]here the official 

action of a board is attacked, courts will presume the board discharged its duties 

19
according to law and acted in good faith”); see also United States v. Morgan, 313 

U.S. 409, 421 (1941) (stating that courts presume that executive officials are 

individuals “of conscience and intellectual discipline” who act in good faith).

It is axiomatic that parties disappointed with the outcome of a case may 

believe the Division (or this Court) erred in judgment. However, Morales’s vitriolic 

accusations against the State Appellees as willful bad actors are disingenuous, 

irresponsible, and transcend reasonable disagreement with the Division’s decisions. 

These claims are simply unsupported hyperbole that are easily dismissed, as would 

be a disgruntled party’s unfounded claims that this Court actively seeks to 

misinterpret the law by failing to hold in that party’s favor.

Moreover, there is no judicial “public policy” exception to sovereign 

immunity. See Harvel, 2015 WL 3637823, at *3 n.8 (rejecting argument like 

Morales’s, explaining that judicial review suit could give plaintiff relief and that, 

regardless, “[a] court without jurisdiction has no choice but to dismiss the case”).10 

10 Morales also claims the State Appellees place parties in a “Catch-22” by disregarding court 

decisions unless they “are made parties or intervene.” Br. of Appellant 40–41. He cites appealspanel decisions stating that the panel is not bound by district-court opinions in other cases. Br. of 

Appellant 40–43. However, the appeals panels merely distinguished those district-court decisions 

on their facts in adjudicating the fact-specific case before it. This argument neither establishes a 

need to “bind” the State Appellees through UDJA action nor establishes an actual immunity 

waiver. The proper recourse for parties aggrieved by the Division’s decisions is through the 

exclusive method that was established by the Legislature, which is judicial review of the Division’s 

administrative decisions under the Labor Code. Tex. Lab. Code Ann. § 410.251.

20

 
Legislative waivers must be by clear and unambiguous language. Tex. Gov’t Code

Ann. § 311.034.

Moreover, even if Morales could pierce the State Appellees’ sovereign 

immunity, which he cannot, his claims would be barred by either or both of the 

redundant-remedies or ripeness doctrines.11

II. MORALES SEEKS AN IMPERMISSIBLE REDUNDANT REMEDY THROUGH HIS 

UDJA ACTION.

As noted above, Morales seeks declaratory judgment related to spinal 

surgeries and the effects of such surgeries occurring before maximum medial 

improvement in calculating impairment ratings. This mirrors the issue the appeals 

panel decided and that is currently the subject of his suit for judicial review under

Labor Code section 410.251.

This Court has squarely held that declaratory judgment under the UDJA is 

unavailable when redundant of a parallel administrative appeal. See Tex. Dep’t of 

State Health Servs. v. Balquinta, 429 S.W.3d 726, 747 (Tex. App.—Austin 2014, 

pet. dism’d); Tex. State Bd. of Veterinary Med. Exam’rs v. Giggleman, 408 S.W.3d 

696, 708 (Tex. App.—Austin 2013, no pet.) (holding that plaintiff did not assert 

valid UDJA claim because it would “be merely incidental to the relief [plaintiff] 

11 These arguments also defeat Morales’s UDJA claims as asserted against TMIC.

21

 
could obtain through his PIA mandamus claim”); SWEPI LP v. R.R. Comm’n, 314 

S.W.3d 253, 268 (Tex. App.—Austin 2010, pet. denied) (citation omitted); see also, 

e.g., Harvel, 2015 WL 3637823, at *4 (holding that redundant-remedies doctrine 

barred declaratory relief because “declarations [plaintiff] seeks under the UDJA 

action are duplicative of his suit for judicial review”).

12

Because Morales’s argument regarding the calculation of impairment ratings

given spinal surgeries is the subject of his judicial-review suit, the trial court properly 

dismissed his redundant UDJA claim regarding that same issue.13

III. MORALES SEEKS IMPERMISSIBLE ADVISORY OPINIONS.

Morales also seeks broad declarations pertaining to the rights of claimants 

generally. To the extent that he requests relief untethered to his actual dispute with 

12 Although Morales pleaded for attorneys’ fees pursuant to the UDJA, he does not appear to 

pursue that request on appeal, which in any event would be meritless: “[A]n award of attorney’s 

fees under the DJA is unavailable if the claim for declaratory relief is merely incidental to other 

claims for relief.” Jackson v. State Office of Admin. Hr’gs, 351 S.W.3d 290, 301 (Tex. 2011); see 

also MBM Fin. Corp. v. Woodlands Operating Co., L.P., 292 S.W.3d 660, 669 (Tex. 2009); In re 

Sw. Bell Tel. Co., L.P., 235 S.W.3d 619, 626 (Tex. 2007) (holding that request for attorneys’ fees 

under section 37.009 “cannot operate to vest the trial court with jurisdiction where there was none 

before”).

13 Patel is distinguishable once more on this point. The Supreme Court there reaffirmed the 

redundant-remedies doctrine but found it inapplicable because the plaintiffs sought “more than a 

reversal of” previous administrative orders, but rather “prospective injunctive relief against future 

agency orders” that were concretely threatened. Patel, 2015 WL 3982687, at *14; see id. at *12–

13 (discussing ripeness). Morales makes no such claim. Rather, his only concrete injury is the 

adverse appeals-panel decision, which can be remedied through his judicial-review suit.

22

 
TMIC (or the State Appellees), his claims are not ripe because they seek advisory 

opinions.

Ripeness “is a threshold issue that implicates subject matter jurisdiction.” 

Patterson v. Planned Parenthood of Houston & Se. Tex., Inc., 971 S.W.2d 439, 442 

(Tex. 1998). It “asks whether the facts have developed sufficiently so that an injury 

has occurred or is likely to occur, rather than being contingent or remote.” Id.

Adjudicating an unripe dispute violates the constitutional prohibition on advisory 

opinions and offends the judiciary’s prudential interest in conserving judicial 

resources for cases presenting concrete, well-developed controversies. Id. at 442–

43. Prudential concerns resonate particularly in the administrative context, where 

“avoiding premature litigation over administrative determinations prevents courts 

from ‘entangling themselves in abstract disagreements over administrative policies’ 

while simultaneously allowing the agency to perform its functions unimpeded.”

Trinity Settlement Servs., LLC v. Tex. State Sec. Bd., 417 S.W.3d 494, 506 (Tex. 

App.—Austin 2013, pet. denied) (quoting Patterson, 971 S.W.2d at 443).

Morales seeks precisely what the ripeness doctrine precludes. He asks the 

Court to opine on various statutory interpretations to generally make “a declaration 

of the parties’ rights under the Texas Workers’ Compensation Act,” C.R. at 50, 

completely divorced from any factual context and before the administrative agency 

has had the opportunity “to perform its functions unimpeded,” Trinity Settlement 

23
Servs., 417 S.W.3d at 506. These requests are particularly problematic in the 

workers’ compensation context, where disputes are often fact-bound and questions 

of law, including those of statutory interpretation, turn on the details of each case.

Last December, this Court addressed the same issue in another case against a 

state agency. See VanderWerff v. Tex. Bd. of Chiropractic Exam’rs, No. 03-12-

00711-CV, 2014 WL 7466814, at *2–3 n.4 (Tex. App.—Austin Dec. 18, 2014, no 

pet.) (mem. op.) (noting that “litigants may not employ declaratory-judgment actions 

to obtain impermissible advisory opinions seeking to interpret statutes or agency 

rules”). The Court should similarly dispose of Morales’s attempt to accomplish the 

same end here.

PRAYER

Based on all the foregoing, the Court should overrule Morales’s sole issue and 

affirm the district court’s judgment dismissing his UDJA claim and dismissing the 

State Appellees from this case.

24
Respectfully submitted,

KEN PAXTON

Attorney General of Texas

CHARLES E. ROY

First Assistant Attorney General

JAMES E. DAVIS

Deputy Attorney General for Civil Litigation

DAVID A. TALBOT, JR.

Chief, Administrative Law Division

/s/Adrienne Butcher

ADRIENNE BUTCHER

Assistant Attorney General

State Bar No. 24050363

Administrative Law Division

OFFICE OF THE ATTORNEY GENERAL

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

Austin, Texas 78711-2548

Telephone: (512) 463-1410

Facsimile: (512) 474-2697

adrienne.butcher@texasattorneygeneral.gov

COUNSEL FOR APPELLEES

25
CERTIFICATE OF COMPLIANCE

I certify that the brief submitted complies with Texas Rule of Appellate 

Procedure 9 and the word count of this document is 4,745, excluding the portions of 

the brief exempted by Rule 9.4(i)(1). The word processing software used to prepare 

this filing, and calculate the word count of the document, is Microsoft Word 2013.

Dated: July 27, 2015

/s/Adrienne Butcher

ADRIENNE BUTCHER

CERTIFICATE OF SERVICE

On July 27, 2015, the foregoing brief was served via File & ServeXpress and 

e-mail on:

Bradley Dean McClellan

State Bar No. 13395980

Of Counsel, THE LAW OFFICES OF RICHARD PENA, P.C.

1701 Director’s Blvd., Suite 110

Austin, Texas 78744

Telephone: (512) 327-6884

Facsimile: (512) 327-8354

Email: Brad.McClellan@yahoo.com

/s/Adrienne Butcher

ADRIENNE BUTCHER

26
APPENDIX

A. Harvel v. Tex. Dep’t of Ins., Div. of Workers’ Comp., No. 13-14-00095-CV, 

2015 WL 3637823 (Tex. App.—Corpus Christi June 11, 2015, no pet. h.).

B. Brief of Appellant, Vanderwerff v. Tex. Dep’t of Ins., Div. of Workers’ Comp.,

et al., No. 05-15-00195-CV (Tex. App.—Dallas filed Feb. 17, 2015).
Tab A

Harvel v. Tex. Dep’t of Ins., Div. of Workers’ Comp.,

No. 13-14-00095-CV, 2015 WL 3637823

(Tex. App.—Corpus Christi June 11, 2015, no pet. h.).
Only the Westlaw citation is currently available.

NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION IN THE PERMANENT LAW REPORTS. UNTIL RELEASED,

IT IS SUBJECT TO REVISION OR WITHDRAWAL.

Court of Appeals of Texas,

Corpus Christi-Edinburg.

Jamie Harvel and The Austin Police Association,

Appellants,

v.

Texas Department of Insurance–Division of Workers' Compensation, and Commissioner Rod Borderlon, in his Official Capacity, Appellees.

NUMBER 13–14–00095–CV

Delivered and filed June 11, 2015

On appeal from the 53rd District Court of Travis County, Texas.

Bradley Dean McClellan, Richard Pena, for Appellant.

Karen L. Watkins, for Appellee.

Before Justices Benavides, Perkes and Longoria

OPINION FN1

FN1. On motion by appellants, the Court,

sitting en banc, withdraws its memorandum opinion and judgment issued on

May 21, 2015, designates that memorandum opinion as an “opinion,” and reissues said opinion without further change.

See TEX. R. APP. P. 47.6.

Opinion by Justice Longoria

*1 Officer Jamie Harvel and the Austin Police

Association, appellants, bring this interlocutory appeal challenging a plea to the jurisdiction granted in

favor of appellees, the Division of Workers' Compensation of the Texas Department of Insurance

(“the Division”) and the Commissioner of Workers'

Compensation David Mattax, in his official capacity.FN2 We affirm the trial court's order granting

the plea and dismissing for lack of jurisdiction.

FN2. At the time appellants perfected this

appeal the Commissioner of Workers'

Compensation was the Hon. Rod Borderlon. Pursuant to Rule 7.2, we automatically

substitute the name of his successor in that

office, the Hon. Ryan Brannan. See TEX.

R. APP. P. 7.2.

I. BACKGROUND FN3

FN3. This case is before this Court on

transfer from the Third Court of Appeals in

Austin pursuant to a docket-equalization

order issued by the Supreme Court of

Texas. See TEX. GOV'T CODE ANN. §

73.001 (West, Westlaw through 2013 3d

C.S.).

The Austin Police Department normally assigned Officer Harvel to work at the police station

located in downtown Austin. In May of 2012, he

was temporarily reassigned to a training camp located in a different part of Austin to serve as a firearms instructor. On the morning of May 4, 2012,

Officer Harvel was traveling from his home to that

training camp on his personal motorcycle. A car attempting to turn left failed to yield the right of way

and collided with Officer Harvel, who sustained

“significant injuries” as a result.

The City of Austin, which self-insures, denied

Officer Harvel's claim for workers's compensation

benefits. Officer Harvel challenged that decision

and received a contested case hearing before a Division hearing officer. See TEX. LAB. CODE

ANN. § 410.151 (West, Westlaw through 2013 3d

Page 1

--- S.W.3d ----, 2015 WL 3637823 (Tex.App.-Corpus Christi)

(Cite as: 2015 WL 3637823 (Tex.App.-Corpus Christi))

© 2015 Thomson Reuters. No Claim to Orig. US Gov. Works.
C.S.). The hearing officer issued an order that

denied coverage and made findings of fact and conclusions of law that Officer Harvel was not acting

within the course and scope of his employment at

the time of his injury. Officer Harvel challenged the

order, but it became final after the Division appeals

panel did not enter a decision. See id. § 410.204(c)

(West, Westlaw through 2013 3d C.S.) (providing

that the order of a hearing officer in a contested

case becomes final if the appeals panel fails to rule

on the claimant's challenge to the order).

Officer Harvel filed suit for judicial review of

the Division's final order in Travis County district

court. See id. § 410.251 (authorizing a suit for judicial review of a final order of the Division in a contested case hearing) (West, Westlaw through 2013

3d C.S.). Officer Harvel's suit named appellees and

the City of Austin as defendants. Officer Harvel requested that the trial court overturn the Division's

final order and determine that he was in the course

and scope of his employment when another person

illegally turned in front of him and caused his injuries. He challenged all adverse “findings, conclusions and decisions” of the Division and requested

the trial court to determine that he is entitled to

workers's compensation benefits because his injuries were work-related. In the same pleading, Officer

Harvel sought two declarations under the Uniform

Declaratory Judgment Act (UDJA). See generally

TEX. CIV. PRAC. & REM. CODE ANN. § 37.001

–.011 (West, Westlaw through 2013 3d C.S.)

(providing the procedures for seeking a declaratory

judgment). Officer Harvel requested a declaration

that under the Texas Workers' Compensation Act

and the “Texas Peace Officer Statutes” a peace officer “is immediately in the course and scope of

their employment upon observing an illegal act especially within their jurisdiction.” See TEX. CODE

CRIM. PROC. ANN. art. 2.12 (West, Westlaw

through 2013 3d C.S.).FN4 Officer Harvel sought a

second declaration that employer-directed travel for

purposes of the Texas Workers' Compensation Act

“need not be just from one work place to another

location but that an employee traveling at the direction of the employer from home to a specially assigned work location is in the course and scope of

his employment while traveling.”

FN4. Article 2.13 of the Texas Code of

Criminal Procedure provides that it is “the

duty of every peace officer to preserve the

peace within the officer's jurisdiction” and

that all peace officers shall “in every case

authorized by the provisions of this Code,

interfere without warrant to prevent or suppress crime.” TEX. CODE CRIM. PROC.

ANN. art. 2.13 (West, Westlaw through

2013 3d C.S.).

*2 Appellees filed a plea to the jurisdiction asserting that they are not proper parties to Officer

Harvel's suit for judicial review and that sovereign

immunity bars Officer Harvel's requests for declaratory relief. The Austin Police Association (“the

Association”) FN5 filed a plea in intervention and a

request for declaratory relief seeking the same declarations as Officer Harvel. After the Association

intervened, appellees filed a second plea to the jurisdiction incorporating the arguments in their first

plea and further asserting that the Association had

no standing to seek a declaratory judgment.

FN5. The Association described itself in its

plea in intervention as “being composed of

over 1,600 police officers” employed by

the City of Austin, including Officer

Harvel.

The trial court granted appellees's plea to the

jurisdiction and dismissed appellants's claims

against appellees in both suits.FN6 Appellants

timely brought this interlocutory appeal. See TEX.

CIV. PRAC. & REMM. CODE ANN. §

51.014(a)(8) (West, Westlaw through 2013 3d C.S.)

(permitting an interlocutory appeal of an order

granting or denying a plea to the jurisdiction by a

government unit).

FN6. The City of Austin did not file a plea

to the jurisdiction and is not a party to this

Page 2

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(Cite as: 2015 WL 3637823 (Tex.App.-Corpus Christi))

© 2015 Thomson Reuters. No Claim to Orig. US Gov. Works.
appeal.

II. STANDARD OF REVIEW & APPLICABLE

LAW

A plea to the jurisdiction challenges a trial

court's subject matter jurisdiction over a case. City

of Dallas v. Carbajal, 324 S.W.3d 537, 538

(Tex.2010) (per curiam ). Whether subject matter

jurisdiction exists is a question of law that we review de novo. Id.

The burden is on the plaintiff to demonstrate

the trial court's jurisdiction. Heckman v. Williamson

County, 369 S.W.3d 137, 150 (Tex.2012). When a

plea to the jurisdiction challenges the pleadings, our

task is to determine if the pleader has alleged facts

that affirmatively demonstrate the trial court's jurisdiction. Tex. Dep't of Parks & Wildlife v. Miranda,

133 S.W.3d 217, 226 (Tex.2004). We begin our

analysis of a plea to the jurisdiction with the live

pleadings. Heckman, 369 S.W.3d at 150. We may

also consider evidence submitted to negate the existence of jurisdiction and must do so when the

evidence necessarily resolves the jurisdictional issue. Id. We construe the pleadings liberally, accepting all factual allegations as true, and look to the intent of the pleader. Id. We must grant the plea if the

pleadings affirmatively negate the existence of jurisdiction. Miranda, 133 S.W.3d at 227. If the pleadings do not contain sufficient facts to demonstrate

jurisdiction but also do not affirmatively negate it,

the issue is one of pleading sufficiency. Id.

Sovereign immunity generally deprives the trial

court of jurisdiction over a lawsuit in which the

party has sued the State or a state agency unless the

Legislature has waived immunity. Tex. Parks &

Wildlife Dep't. v. Sawyer Trust, 354 S.W.3d 384,

388 (Tex.2011). The UDJA is not a general waiver

of sovereign immunity but does provide a narrow

waiver of immunity for claims challenging the

validity of ordinances or statutes. Id.; City of El

Paso v. Heinrich, 284 S.W.3d 366, 373 n. 6

(Tex.2009). However, the UDJA does “not waive

the state's sovereign immunity when the plaintiff

seeks a declaration of his or her rights under a statute or other law.” Tex. Dep't of Transp. v. Sefzik,

355 S.W.3d 618, 621 (Tex.2011) (per curiam )

(citing Heinrich, 284 S.W.3d at 372–73); accord

Abbott v. G.G.E, No. 03–11 –00338–CV, –––

S.W.3d ––––, 2015 WL 1968262, at *13 n. 14

(Tex.App.—Austin Apr. 30, 2015, no. pet. h.). Related to this rule is the ultra vires exception, which

permits private parties to bring claims against state

officials for nondiscretionary acts unauthorized by

law. Sefzik, 355 S.W.3d at 621. Such lawsuits are

not “against the State” and therefore not barred by

sovereign immunity. Id.; see Heinrich, 284 S.W.3d

at 373.

III. OFFICER HARVEL'S SUIT FOR JUDICIAL REVIEW

*3 Officer Harvel's petition sought both judicial review of the Division's final order denying

him workers's compensation benefits and a declaratory judgment. Judicial review of a final agency

order and a UDJA action are separate proceedings

authorized and governed by different statutes. See

TEX. LAB. CODE ANN. § 410.251 (authorizing

judicial review of a final order of the Division once

the claimant has exhausted all administrative remedies); TEX. CIV. PRAC. & REM. CODE ANN. §

37.003 (authorizing a suit for a declaratory judgment). Appellees filed a plea to the jurisdiction

challenging the trial court's jurisdiction over them

in both suits, but appellants did not address why appellees are proper parties to Officer Harvel's suit

for judicial review as distinguished from appellants's UDJA action in their briefs to this Court.

The appellant's brief must contain a clear and concise argument for the party's contest accompanied

by appropriate citations to authorities and to the record. TEX. R. APP. P. 38.1(i); see Strange v. Cont'l

Cas. Co., 126 S.W.3d 676, 678 (Tex.App.—Dallas

2004, pet. denied) (“An issue on appeal unsupported by argument or citation to any legal authority

presents nothing for the court to review.”). To the

degree that Officer Harvel raises an issue that appellees are proper parties to his suit for judicial review, we overrule it as inadequately briefed. See

TEX. R. APP. P. 38.1(i); Strange, 126 S.W.3d at

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678.

IV. DECLARATORY RELIEF

We next turn to appellants's argument that sovereign immunity does not bar their UDJA action

against the Division and the Commissioner.

Appellants sought two declarations under the

UDJA: (1) that a peace officer who witnesses an illegal act is immediately within the course and

scope of his or her employment; and (2) that employer-directed travel includes an “employee traveling at the direction of the employer from home to a

specially assigned work location.” Sovereign immunity bars both claims because appellants seek a

declaration of their rights under a statute but do not

challenge the validity of any statute or ordinance.

See Sefzik, 355 S.W.3d at 621. Appellants assert

that the Texas Supreme Court permitted a similar

UDJA action to continue in Texas Lottery Commission v. First State Bank of DeQueen, but that case is

distinguishable and does not support appellants's argument. 325 S.W.3d 628, 633–34 (Tex.2010).

Texas Lottery Commission involved whether provisions of the Uniform Commercial Code invalidated

certain sections of the Texas Lottery Act. Id. at 634.

Thus, Texas Lottery Commission fits into the narrow UDJA waiver of sovereign immunity for suits

challenging the validity of statutes which the Texas

Supreme Court recognized in Heinrich. See id. at

635 (“Because the claim at issue here is not one involving a government officer's action or inaction,

but is a challenge to a statute, this is not an ultra

vires claim to which a government officer should

have been made a party”); see also Heinrich, 284

S.W.3d at 372–73. Appellants's UDJA action is

more akin to the one the Austin Court of Appeals

addressed in Trinity Settlement Services, LLC v.

Texas State Securities Board, where Trinity sought

a declaratory judgment of its rights and status under

the Texas Securities Act. 417 S.W.3d 494, 503

(Tex.App.—Austin 2013, pet. denied). The court of

appeals held that sovereign immunity barred Trinity's claims for declaratory judgment against the

Texas State Securities Board because Trinity

sought only a declaration of its rights and status under the Act. Id. (citing Sefzik, 355 S.W.3d at 621).

Appellants seek similar relief in the case at bar: a

declaration of their rights under a statute. Without a

legislative waiver, sovereign immunity bars appellants's suit.FN7 Appellants have not directed us to

any legislative waiver of immunity for their suit,

and we have found none. We conclude that the trial

court did not err in granting appellees's plea to the

jurisdiction.FN8 See Sefzik, 355 S.W.3d at 621;

Trinity Settlement Servs., 417 S.W.3d at 503; see

also City of McKinney v. Hank's Rest. Group, L.P.,

412 S.W.3d 102, 113 (Tex.App.—Dallas 2013, no

pet.) (holding that the UDJA did not waive immunity for the appellee's claims “seeking interpretations of City ordinances, declarations of HRG's

statutory rights and declarations that City officials

have violated or are violating the law”).

FN7. We note that unlike Sefzik, appellants

brought suit against a state official, the

Commissioner of Workers' Compensation.

However, appellants do not allege that the

Commissioner acted ultra vires or request

that we remand to afford appellants an opportunity to plead an ultra vires suit. See

Tex. Dep't. of Transp. v. Sefzik, 355

S.W.3d 618, 623 (Tex.2011) (per curiam)

(affirming a plea to the jurisdiction but remanding to permit the plaintiff to plead an

ultra vires suit).

FN8. Appellants assert numerous times in

their appellate briefs that a UDJA action in

which the Commissioner and the Division

are parties is the only way to bind the

Commissioner and the Division to apply

the declarations appellants seek in subsequent contested case proceedings. Appellants do not explain why the Division

and the Commissioner would not be bound

to apply a district court decision agreeing

with Officer Harvel that the Texas Code of

Criminal Procedure places police officers

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ment as soon as they witness a violation of

the law. In any event, we have concluded

that the trial court correctly concluded that

it lacked jurisdiction over this appeal. A

court without jurisdiction has no choice

but to dismiss the case. See State v. Morales, 869 S.W.2d 941, 949 (Tex.1994).

*4 When we hold that the trial court is without

subject-matter jurisdiction, we allow a plaintiff to

replead if the defect can be cured. See Miranda,

133 S.W.3d at 226–227. We will not afford Officer

Harvel an opportunity to replead because the relief

requested under the UDJA Act mirrors the relief he

requested in the suit for judicial review. When a

plaintiff “has invoked a statutory means of attacking an agency order, a trial court lacks jurisdiction

over an additional claim under the UDJA that

would merely determine the same issues and

provide what is substantively the same relief that

would be provided by the other statutory remedy.”

Tex. Dep't of State Health Servs. v. Balquinta, 429

S.W.3d 726, 746 (Tex.App.—Austin 2014, pet.

dism'd); SWEPI LP v. R.R. Com'n of Tex., 314

S.W.3d 253, 268 (Tex.App.—Austin 2010, pet.

denied). Both Officer Harvel's suit for judicial review and his UDJA action seek rulings that (1) a

peace officer is in the course and scope of employment as soon as the officer witnesses an illegal act

and (2) that employer-directed travel for purposes

of the Texas Workers' Compensation Act includes

travel from the employee's home to a specially-assigned work location. If Officer Harvel was successful on either suit he would receive substantively the same relief: reversal of the final order

denying him workers's compensation benefits. The

pleadings have affirmatively negated jurisdiction

because the declarations Officer Harvel seeks under

the UDJA action are duplicative of his suit for judicial review. See Balquinta, 429 S.W.3d at 746;

SWEPI, 314 S.W.3d at 268.

We will not afford the Association an opportunity to replead because the pleadings conclusively

demonstrate the absence of a justiciable controversy between the Association and appellees. See

Brooks v. Northglen Ass'n, 141 S.W.3d 158,

163–64 (Tex.2004). The trial court has jurisdiction

to address a suit for declaratory relief only if a justiciable controversy exists regarding the rights and

status of the parties actually before the court and

the declaration sought will actually resolve the controversy. Id. A justiciable controversy involves a

real and substantial conflict of tangible interests

and not merely a theoretical or hypothetical dispute.

Bonham State Bank v. Beadle, 907 S.W.2d 465, 467

(Tex.1995); see Trinity Settlement Servs., 417

S.W.3d at 505 (observing that a justiciable controversy does not exist if a case requires the trial court

to “pass upon hypothetical or contingent situations,

or to determine questions not then essential to the

decision of an actual controversy, although such actions may in the future require adjudication”). The

Association seeks a declaration that would apply to

all of its police officers, but none of those officers

except for Officer Harvel are before the Court. At

best, the Association has identified hypothetical

disputes which are likely to occur between the Division and its member officers in the future if one

of the officers is injured. While it is certainly possible that one of the Association's member officers

could be injured when traveling to work in a manner similar to Officer Harvel's experience, such an

injury is merely hypothetical at this point. See Bonham State Bank, 907 S.W.2d at 467. We conclude

that the pleadings affirmatively negate the existence

of jurisdiction because the Association has not

shown that any possible injury is “imminent, direct,

and immediate, and not merely remote, conjectural,

or hypothetical.” See Rea v. State, 297 S.W.3d 379,

383 (Tex.App.—Austin 2009, no pet.). We will not

afford the Association an opportunity to replead.

V. CONCLUSION

We affirm the trial court's order granting the

plea to the jurisdiction.

Tex.App.-Corpus Christi, 2015

Harvel v. Texas Department of Insurance-Division

of Workers' Compensation

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END OF DOCUMENT

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© 2015 Thomson Reuters. No Claim to Orig. US Gov. Works.
Tab B

Brief of Appellant, Vanderwerff v. Tex. Dep’t of Ins., Div. of Workers’ Comp., et 

al., No. 05-15-00195-CV (Tex. App.—Dallas filed Feb. 17, 2015).
No. 05-15-00195-CV

FIFTH COURT OF APPEALS 

DALLAS, TEXAS

Dr. Eric Vanderwerff, D.C., Appellant 

v.

Texas Department of Insurance-Division of Workers' Compensation 

and Commissioner Ryan Brannan, in his official capacity, Appellees 

 and Travelers Indemnity Company of Connecticut, Defendant Below

On Interlocutory Appeal from the 14th District Court of Dallas County 

Cause No. DC-14-02886, the Honorable Eric Moyé Presiding 

DR. ERIC VANDERWERFF, D.C., APPELLANT’S 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

May 26, 2015 

Oral Argument Requested 

ACCEPTED

05-15-00195-CV

FIFTH COURT OF APPEALS

DALLAS, TEXAS

5/26/2015 11:40:30 PM

LISA MATZ

CLERK

 FILED IN 5th COURT OF APPEALS DALLAS, TEXAS 5/26/2015 11:40:30 PM LISA MATZ Clerk
No. 05-15-00195-CV Dr. Vanderwerff Appellant’s Brief 

ii

IDENTITY OF PARTIES & COUNSEL 

PLAINTIFF/APPELLANT: 

Dr. Eric Vandwerff, D.C. 

Care of Attorneys 

Law Offices of Richard Pena, P.C. 

1701 Directors Blvd. 

Austin, Texas 78744 

TRIAL AND APPELLATE ATTORNEY FOR 

PLAINTIFF & INTERVENOR: 

Bradley Dean McClellan 

State Bar No. 13395980 

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 

Fax 512.327.8354 

Telephone 512.327.6884 

INTERVENOR DEFENDANT/APPELLEE: 

Texas Department of Insurance –

Division of Workers' Compensation, 

DWC, a governmental unit organized 

and existing under the law of the State 

of Texas, and Commissioner Ryan 

Brannan, in his official capacity 

 7551 Metro Center Drive, Suite 100 

Austin, TX, 78744 

Attorneys for DWC and Commissioner: 

 DOUGLAS D. GEYSER, 

 Assistant Solicitor General 

 OFFICE OF THE ATTORNEY GENERAL 

 P.O. Box 12548 (MC 059) 

 Austin, Texas 78711-2548

 Tel.: (512) 936-2540

 Fax: (512) 474-2697 

douglas.geyser@texasattorneygeneral.

gov 

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

512-320-0167 facsimile. 

Attorneys for DWC and Commissioner 

OTHER DEFENDANT: 

Travelers Indemnity Insurance Co. of 

Connecticut, the Insurance Carrier 

James M. Loughlin 

Stone Loughlin & Swanson, LLP 

P.O. Box 3011 

Austin, Texas 78755 

Facsimile: (512) 343-1385

jloughlin@slsaustin.com 

Counsel for Defendant Travelers 
No. 05-15-00195-CV Dr. Vanderwerff Appellant’s Brief 

iii

TABLE OF CONTENTS 

TABLE OF AUTHORITIES iv-v

IDENTITY OF PARTIES & COUNSEL ii 

STATEMENT OF THE CASE vii 

ISSUES PRESENTED ix 

DR. VANDERWERFF’S APPELLANT’S BRIEF 1

SUMMARY OF ARGUMENT 7 

STATEMENT OF FACTS 2

ARGUMENT & AUTHORITIES 11 

Issue No. 1: When a state agency intervenes in a lawsuit, does the 

District Court have 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? 11

CONCLUSION 39 

PRAYER 40

CERTIFICATE OF COMPLIANCE 41 

CERTIFICATE OF SERVICE 41 

APPENDIX 42 
No. 05-15-00195-CV

FIFTH COURT OF APPEALS 

DALLAS, TEXAS

Dr. Eric Vanderwerff, D.C., Appellant 

v.

Texas Department of Insurance-Division of Workers' Compensation 

and Commissioner Ryan Brannan, in his official capacity, Appellees 

 and Travelers Indemnity Company of Connecticut, Defendant Below

On Interlocutory Appeal from the 14th District Court of Dallas County 

Cause No. DC-14-02886, the Honorable Eric Moyé Presiding 

DR. ERIC VANDERWERFF, D.C., APPELLANT’S 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

May 26, 2015 

Oral Argument Requested 

ACCEPTED

05-15-00195-CV

FIFTH COURT OF APPEALS

DALLAS, TEXAS

5/26/2015 11:40:30 PM

LISA MATZ

CLERK

 FILED IN 5th COURT OF APPEALS DALLAS, TEXAS 5/26/2015 11:40:30 PM LISA MATZ Clerk
No. 05-15-00195-CV Dr. Vanderwerff Appellant’s Brief 

ii

IDENTITY OF PARTIES & COUNSEL 

PLAINTIFF/APPELLANT: 

Dr. Eric Vandwerff, D.C. 

Care of Attorneys 

Law Offices of Richard Pena, P.C. 

1701 Directors Blvd. 

Austin, Texas 78744 

TRIAL AND APPELLATE ATTORNEY FOR 

PLAINTIFF & INTERVENOR: 

Bradley Dean McClellan 

State Bar No. 13395980 

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 

Fax 512.327.8354 

Telephone 512.327.6884 

INTERVENOR DEFENDANT/APPELLEE: 

Texas Department of Insurance –

Division of Workers' Compensation, 

DWC, a governmental unit organized 

and existing under the law of the State 

of Texas, and Commissioner Ryan 

Brannan, in his official capacity 

 7551 Metro Center Drive, Suite 100 

Austin, TX, 78744 

Attorneys for DWC and Commissioner: 

 DOUGLAS D. GEYSER, 

 Assistant Solicitor General 

 OFFICE OF THE ATTORNEY GENERAL 

 P.O. Box 12548 (MC 059) 

 Austin, Texas 78711-2548

 Tel.: (512) 936-2540

 Fax: (512) 474-2697 

douglas.geyser@texasattorneygeneral.

gov 

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

512-320-0167 facsimile. 

Attorneys for DWC and Commissioner 

OTHER DEFENDANT: 

Travelers Indemnity Insurance Co. of 

Connecticut, the Insurance Carrier 

James M. Loughlin 

Stone Loughlin & Swanson, LLP 

P.O. Box 3011 

Austin, Texas 78755 

Facsimile: (512) 343-1385

jloughlin@slsaustin.com 

Counsel for Defendant Travelers 
No. 05-15-00195-CV Dr. Vanderwerff Appellant’s Brief 

iii

TABLE OF CONTENTS 

TABLE OF AUTHORITIES iv-v

IDENTITY OF PARTIES & COUNSEL ii 

STATEMENT OF THE CASE vii 

ISSUES PRESENTED ix 

DR. VANDERWERFF’S APPELLANT’S BRIEF 1

SUMMARY OF ARGUMENT 7 

STATEMENT OF FACTS 2

ARGUMENT & AUTHORITIES 11 

Issue No. 1: When a state agency intervenes in a lawsuit, does the 

District Court have 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? 11

CONCLUSION 39 

PRAYER 40

CERTIFICATE OF COMPLIANCE 41 

CERTIFICATE OF SERVICE 41 

APPENDIX 42 
No. 05-15-00195-CV Dr. Vanderwerff Appellant’s Brief 

iv

INDEX OF AUTHORITIES 

Cases

Beacon Nat 'I Ins. Co. v. Montemayor, 86 S.W.3d 260, 267 (Tex. App.-Austin 

2002, no pet.) .............................................................................................. 21

Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554-55 (Tex. 2000) ................. 23

Brooks v. Northglen Ass'n, 141 S.W.3d 158, 163 (Tex. 2004) .......................... 17

Calvert v. Employees Ret. Sys. of Tex., 648 S.W.2d 418, 419 (Tex. App.--Austin 

1983, writ ref'd n.r.e.).................................................................................. 25

Campos v. Texas Prop. & Cas. Ins. Guar. Ass'n, 282 S.W.3d 226, 230 (Tex. 

App.—Austin 2009, no pet.) ........................................................................ 15

City of El Paso v. Heinrich, 284 S.W.3d 366, 373 n.6 (Tex. 2009) ..................... 26

City of McKinney v. Hank's Rest. Group, L.P., 412 S.W.3d 102, 112 (Tex. App.—

Dallas 2013, no pet.) .................................................................................... 13

Cobb v. Harrington, 144 Tex. 360, 190 S.W.2d 709, 712 (1945) ...................... 26

Harvel v. Tex. Dep't of Ins.-Div. of Workers' Comp., 13-14-00095-CV, 2015 Tex. 

App. LEXIS 5159, 2015 WL 2452703 (Tex. App. Corpus Christi--May 21, 

2015, motion for rehearing to be filed) ....................................................... 13

Hawkins v. El Paso First Health Plans, Inc., 214 S.W.3d 709, 716-18 (Tex. App.--

Austin 2007, pet. filed). ............................................................................... 26

Houston General Insurance Co. v. Association Casualty Insurance Co., 977 

S.W.2d 634 (Tex. App.—Tyler, no pet.) ........................................................ 38

Howell v. Texas Workers' Compensation Com'n, 143 S.W.3d 416, 433 (Tex. 

App.--Austin 2004, pet. denied)................................................................... 38

Kuntz v. Khan, No. 03-10-00 160-CV, 2011 Tex. App. LEXIS 446, 2011 WL 

182882,(Tex. App.--Austin 2011, no pet.) .................................................... 21

Mid-Century Insurance Company v. Texas Workers’ Compensation Commission,

187 S.W.3d 754 (Tex. App.—Austin 2006, no pet.). ..................................... 33

Nat'l Am. Ins. Co. and TDI-DWC and Commissioner Bordelon in his official 

capacity v. Tex. Prop. & Cas. Ins. Guar. Ass'n, No. 03-09-00680-CV, 2013 WL 

4817637, 2013 Tex. App. LEXIS 10865 (Tex. App.--Austin Aug. 28, 2013, no 

pet.) .......................................................................................................... 9, 17 

Nat'l Am. Ins. Co. v. Tex. Prop. & Cas. Ins. Guar. Ass'n for Paula Ins. Co., 2013 

Tex. App. LEXIS 10865, 2013 WL 4817637 (Tex. App.--Austin Aug. 28, 2013, 

no pet.) ........................................................................................................ 30

Roal Global Corp. v. City of Dallas, 2015 Tex. App. LEXIS 5205 (Tex. App. Dallas-

-May 21, 2015, no pet. h.) ........................................................................... 13
No. 05-15-00195-CV Dr. Vanderwerff Appellant’s Brief 

v

section 2001.176(b)(1) .................................................................................... 15

section 410.005 .............................................................................................. 15

Spawglass Constr. Corp. v. City of Houston, 974 S.W.2d 876, 878 (Tex. App.--

Houston [14th Dist.] 1998, pet. denied) ........................................................ 25

Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 446 (Tex.1993) ...... 23

Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex.2004) .... 23

Tex. DOT v. Sefzik, 355 S.W.3d 618, 621-622 (Tex. 2011). ............................... 28

Tex. Educ. Agency v. Leeper, 893 S.W.2d 432, 446 (Tex. 1994). ...................... 27

Tex. Lottery Comm'n v. First State Bank of DeQueen, 325 S.W.3d 628, 634-35 

(Tex. 2010) .............................................................................................. 27, 28 

Tex. Natural Res. Conservation Comm'n v. IT-Davy, 74 S.W.3d 849, 859-60 (Tex. 

2002) ........................................................................................................... 27

Tex. Prop. & Cas. Guar. Ass'n v. Nat'l Am. Ins. Co., 208 S.W.3d 523, 533 (Tex. 

App.--Austin 2006, pet. denied). .................................................................. 14

Tex. Workers' Compensation Ins. Fund v. Tex. Workers' Compensation Comm'n 

& Watts, 124 S.W.3d 813, 820 (Tex. App.--Austin 2003, pet. denied) .......... 18

Texas Ass'n of Business v. Texas Air Control Bd., 852 S.W.2d 440 at 446 (Tex. 

1993) ........................................................................................................... 24

Texas Dep. of Ins., Div. of Workers’ Compensation v. Lumbermens Mut. Cas. 

Co., 212 S.W.3d 870 (Tex App.—Austin 2006, pet. denied) ....................... 9, 19 

Texas Educ. Agency v. Leeper, 893 S.W.2d 432, 446 (Tex.1994) ...................... 31

Texas Government Code section 2001.171 ..................................................... 14

Texas Liquor Control Bd. v. Canyon Creek Land Corp., 456 S.W.2d 891, 895 

(Tex.1970) ................................................................................................... 33

Texas Mun. Power Agency v. Public Util. Comm'n, 100 S.W.3d 510, 520 (Tex. 

App.--Austin 2003, pet. denied) ................................................................... 33

Texas Mun. Power Agency v. Public Utility Com'n of Texas, 253 S.W.3d 184, 189 

(Tex. 2007) ................................................................................................... 32

Texas Natural Res. Conservation Comm'n v. IT-Davy, 74 S.W.3d 849, 855 (Tex. 

2002) ........................................................................................................... 26

Texas State Employees Union/CWA Local 6184 v. Texas Workforce Comm'n, 16 

S.W.3d 61, 65 (Tex. App.-Austin 2000, no pet.). ........................................... 23

Texas Workers' Compensation Commision v. Garcia, 893 S.W.2d 504 (Tex. 

1995) ...................................................................................................... 32, 33 

Transportation Ins. Co. v. Franco, 821 S.W.2d 751, 754 (Tex. App.--Amarillo 

1992, writ denied) ....................................................................................... 34
No. 05-15-00195-CV Dr. Vanderwerff Appellant’s Brief 

vi

Young Chevrolet, Inc. v. Tex. Motor Vehicle Bd., 974 S.W.2d 906,911 (Tex. App.-

-Austin 1998, pet. denied) ........................................................................... 22

Statutes

Tex. Civ. P. & Rem. Code § 37.006 .................................................................. 16

Tex. Civ. Prac. & Rem. Code §37.003(a) .......................................................... 38

Tex. Civ. Prac. & Rem. Code §5.062(a) ............................................................ 38

Texas Insurance Code Section 1305.451 ......................................................... 12

Texas Labor Code § 410.254 ............................................................................. 8 

Texas Labor Code §410.252(b)(1) ................................................................... 16

Texas Labor Code Section 401.011(12) ............................................................. 8 

Other Authorities

DWC APPEAL NO. 050140, 2005 TX Wrk. Comp. LEXIS 57 (decided March 14, 

2005) 35

DWC APPEAL NO. 94994, 1994 TX Wrk. Comp. LEXIS 6081, September 9, 1994

36

DWC APPEAL NO. 951802, 1995 TX Wrk. Comp. LEXIS 4964, December 13, 

1995 37

DWC Appeal No. 990005, 1999 TX Wrk. Comp. LEXIS 3029, decided February 

19, 1999 37

DWC Appeals Panel No. 071023-s, decided July 23, 2007, 2007 TX Wrk. Comp. 

LEXIS 54. 36
No. 05-15-00195-CV Dr. Vanderwerff Appellant’s Brief 

vii

STATEMENT OF THE CASE 

This case involves primarily questions of law and statutory violations 

which arose out of a workers’ compensation dispute and the improper 

interpretation and application of the Legislature’s statutory terms by both the 

workers’ compensation insurance carrier and the Texas Department of 

Insurance-Division of Workers’ Compensation (DWC), which is the state agency 

charged with properly applying, enforcing, and interpreting the Texas Labor 

Code and Texas Insurance Code along with the DWC Commissioner in his 

official capacity. Dr. Eric Vanderwerff, D.C., is a health care provider and 

subclaimant of the injured worker. The injured worker has workers’ 

compensation coverage through the Defendant, the Travelers Indemnity 

Company of Connecticut. The administrative judge ruled in favor of Dr. 

Vanderwerff, but the Insurance Carrier appealed and the final DWC 

administrative decision determined that a website link was sufficient written 

notice to injured workers of health care network required written notice. CR

165, 166-67. Dr. Vanderwerff filed for judicial review in the 14th District Court 

of Dallas County challenging the final DWC determinations and seeking 

declarations of proper statutory interpretation both under the Texas Labor 

Code and the Texas Insurance Code. CR 5, 147. The DWC intervened and 
No. 05-15-00195-CV Dr. Vanderwerff Appellant’s Brief 

viii

filed a plea to the jurisdiction arguing sovereign immunity from suit. CR 35, 60, 

105. Travelers, the Insurance Carrier, finally answered and also filed a plea to 

the jurisdiction. CR 33, 50. The Honorable Judge Eric Moyé granted the DWC’s 

plea to the jurisdiction and dismissed the DWC from the lawsuit, and he 

granted Traveler’s Plea to the Jurisdiction, CR 201-202. Plaintiff brings this 

interlocutory appeal challenging the plea to the jurisdiction dismissing DWC 

from the case and granting DWC’s plea to the jurisdiction as to the declaratory 

claims. Appellant does not believe the Insurance Carrier is a direct party to 

this interlocutory appeal. 
No. 05-15-00195-CV Dr. Vanderwerff Appellant’s Brief 

ix

ISSUE PRESENTED 

Issue No. 1: When a state agency intervenes in a lawsuit, does the District 

Court have 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? 
No. 05-15-00195-CV Dr. Vanderwerff Appellant’s Brief 

1

No. 05-15-00195-CV

FIFTH COURT OF APPEALS 

DALLAS, TEXAS

Dr. Eric Vanderwerff, D.C., Appellant 

v.

Texas Department of Insurance-Division of Workers' Compensation 

and Commissioner Ryan Brannan, in his official capacity, Appellees 

 and the Travelers Indemnity Company of Connecticut

On Appeal from the 14th District Court of Dallas County 

Cause No. DC-14-02886, the Honorable Eric Moyé Presiding 

DR. ERIC VANDERWERFF, D.C., APPELLANTS’ BRIEF

To the Honorable Justices of the 5

th Court of Appeals:

A state agency is not free to misinterpret and misapply the laws of the 

Texas Legislature, and the Courts of this State are duty bound to make sure the 

laws of this State are properly applied, interpreted and enforced. Texas citizens 

have a right to seek declaratory judgments concerning statutory rights especially 

where administrative remedies have been exhausted. A state agency may not 

prevent a parties challenge that a statute is not being properly applied, 

interpreted and enforced. When the state agency voluntarily intervenes into a 

lawsuit, the state should not be allowed to interfere with the duty of the Courts 
No. 05-15-00195-CV Dr. Vanderwerff Appellant’s Brief 

2

to enforce the proper construction of statutes in dispute. The state agency is a 

necessary party for such a declaration, and such a declaration would be 

unenforceable without the proper state agency. The final decision of the Texas 

Department of Insurance-Division of Workers’ Compensation and Commissioner 

Brannan, collectively the DWC, primarily determined that that a website link 

constituted proper written notice under Texas Insurance Code Section, where the 

Legislature required complete and accurate written notice updated quarterly of 

health care providers for injured workers. The prior administrative judge 

rejected the notion that a website met the statutory requirements of the 

Insurance Code. 

The declaratory judgment action will require that the DWC and the 

Commissioner properly enforce the statutes at issue and require the DWC and the 

Commissioner to properly interpret, apply, and enforce the law as written by the 

Legislature. 

STATEMENT OF FACTS 

 Leonardo Martinez, a Texas worker, suffered a compensable injury on July 

21, 2010 while in the course and scope of his employment with his employer,
No. 05-15-00195-CV Dr. Vanderwerff Appellant’s Brief 

3

Hensley Industries.1 Dr. Eric VanderWerff, D.C., provided medical care to the 

Claimant after for his compensable injuries.2

 Travelers Indemnity Company of 

Connecticut provided workers compensation insurance as the Insurance Carrier 

on the date of the worker’s injuries.3 The Insurance Carrier is alleged to have 

paid for a lot of the medical care, but disputed some of the medical care after the 

Insurance Carrier asserted the Claimant was covered under its workers’ 

compensation health care network. 4

 The DWC was asked to determine if the 

Claimant had been provided proper, sufficient, and timely notice of the health 

care network.5

 The DWC hearing officer determined that neither the Insurance 

Carrier nor the Employer properly provided the Claimant with the information 

required by Texas Insurance Code §1305.451, and that the Insurance Carrier could 

not deny payment to Dr. Vanderwerff on this basis, and the Insurance Carrier was 

ordered to pay workers’ compensation benefits consistent with the decision.6

 The 

Insurance Carrier appealed to the DWC Appeals Panel, and the DWC Appeals 

Panel reversed the hearing officer and determined that a packet containing notice 

 

1

 CR 163 DWC Hearing Decision 

2

 CR 156 

3

 CR 163 

4

 CR 147 

5

 CR 155 

6

 CR 165 
No. 05-15-00195-CV Dr. Vanderwerff Appellant’s Brief 

4

of an electronic website link to a health care network provider list was sufficient.7 

The live pleadings of the Plaintiff are attached as Appendix 2, Plaintiff’s First 

Amended Petition and Suit for Declaratory Judgment and Exhibit “A” DWC 

Contested Case Hearing Decision signed November 4, 2013 and DWC Appeals 

Panel Decision of February 18, 2014. Dr. VanderWerff disputed all adverse 

determinations of the disputed issues. 

 Dr. Vanderwerff filed his lawsuit for declaratory judgment against the 

Insurance Carrier.8

 The TDI-DWC voluntarily filed a petition in intervention on 

October 6, 2014, and amended its intervention petition on January 28, 2015.9 

The DWC also filed a plea to the jurisdiction and an amended petition in 

intervention in part asserting a lack of jurisdiction over UDJA claims and that 

administrative remedies were not exhausted as to medical treatment until 

Plaintiff exhausts all claims with the Division regarding his medical bills for 

treating the claimant.10

 Dr. Vandewerff amended his petition asserting claims 

against the DWC and the Commisioner.11 Plaintiff asserted in part that injured 

workers and health care providers, especially as subclaimants, have a right to 

 

7

 CR 167, 168 

8

 CR 5 

9

 CR 35, 105. 

10 CR 60, 105 

11 CR 147 Plaintiff’s 1st Amended Petition and Suit for Declaratory Judgment 
No. 05-15-00195-CV Dr. Vanderwerff Appellant’s Brief 

5

demand the Courts protect their rights under the Texas Labor Code and Texas 

Insurance Code.12

 Dr. Vanderwerff asked that the District Court so declare and 

that the Court compel compliance with statutory provisions which the DWC and 

the DWC Commissioner and the Insurance Carrier Defendant have not followed as 

required including both the finality of preauthorization of medical treatment no 

longer subject to dispute, the lack of timely raising or asserting a health care 

network issue to oppose payment of benefit, and the lack of timely and proper 

notice of health care network providers to the Claimant with a website link not 

being proper written notice of the statutory requirements. 13

 

 Dr. Vanderwerff also alleged that the DWC Defendants, which include the 

DWC Commissioner, acted beyond their statutory authority in failing to properly 

apply, interpret and enforce the statutes and rules for which declaratory relief is 

sought.14

 Further, Dr. Vanderwerff plead that the DWC Defendants cannot adopt 

and apply administrative rules which are inconsistent with and in conflict with the 

the statute. The District Court granted the DWC and the Commissioner plea to 

the jurisdiction along with Travelers Plea to the jurisdiction.15 In granting the 

 

12 CR 149 

13 CR 150 

14 CR 151 

15 CR 201, 202 
No. 05-15-00195-CV Dr. Vanderwerff Appellant’s Brief 

6

DWC’s jurisdiction plea, the District Judge ruled that “All declaratory judgment 

actions in this case are DISMISSED. Intervenor TDI-DWC is further DISMISSED 

from this case, and all relief requested against it is DENIED.”16

 This interlocutory 

appeal was brought by Dr. Vanderwerff challenging the granting of the plea to the 

jurisdiction and the dismissal of the intervening party, the DWC, and the 

Commissioner, from this matter. 

 

16 CR 202 
No. 05-15-00195-CV Dr. Vanderwerff Appellant’s Brief 

7

SUMMARY OF THE ARGUMENT

A state agency which intervenes in a lawsuit may not be dismissed on 

jurisdictional grounds from the lawsuit it joined avoid being a necessary party to a 

statutory declaration lawsuit concerning the statutes the agency is charged to 

regulate and to enforce and to properly apply. Further, when the state agency 

acts beyond and in derogation of its statutory authority, the state official is a 

proper party to a lawsuit alleging such ultra vires acts. This is especially clear 

when administrative remedies have been exhausted and a live controversy exists. 

The 3rd Court of Appeals previously rejected the DWC and the Commissioner’s 

argument that only judicial review between the parties is permissible:17

 

The Division argues that because the carriers are permitted to seek judicial 

review of hearing decisions applying the advisories under section 410.251 

of the labor code, they are barred from bringing declaratory judgment 

actions under the UDJA challenging the same decisions. 

The 3rd Court rejected the DWC’s similar arguments and concluded: “that the trial 

court had jurisdiction over the declaratory judgment action pursuant to the 

UDJA.”18 This matter is not different. 

 In this matter, Dr. Vanderwerff ahs sought declaratory judgments that assert 

 

17 Texas Dep. of Ins., Div. of Workers’ Compensation v. Lumbermens Mut. Cas. Co., 

212 S.W.3d 870, 874 (Tex App.—Austin 2006, pet. denied) 

18 Lumbermens at 875 
No. 05-15-00195-CV Dr. Vanderwerff Appellant’s Brief 

8

the DWC Defendants and Commissioner and the Insurane Carrier have not 

properly interpreted, applied, and enforced the Texas Workers’ Compensation 

Act and the Texas Insurance Code. Included in the declarations of law sought are 

the proper application, interpretation, compliance and enforcement of TEXAS 

LABOR CODE and TEXAS INSURANCE CODE as well as the declaration that improper and 

invalid rules conflicting with the statutory terms are not enforceable. The legal 

resolution of the declarations will likely resolve the underlying administrative 

controversy where the material facts are not disputed. Without declarations, 

these legal questions will arise again and again and again. Workers’ 

compensation system participants are entitled to a final declaration of, 

interpretation, and enforcement of the statutory terms by the Judicial Branch 

subject only to changes in the laws by the Texas Legislature. 

 Texas Courts are duty bound to properly construe statutory requirements 

especially where the Legislature’s will is clearly ignored. 

How the DWC’s (and the Commissioner’s) position appears to be that it is 

only allowed to intervene under Texas Labor Code § 410.254, but that the DWC is 

somehow not a necessary or proper party in such suits appears to create a 

dichotomy. This allows the DWC to continually misapply and misinterpret the law 

and act in violation of the law without being held accountable even when the 
No. 05-15-00195-CV Dr. Vanderwerff Appellant’s Brief 

9

DWC voluntarily joins a lawsuit. The DWC and the Commissioner’s similar 

jurisdictional pleas arguing immunity from declaratory judgments were rejected 

by the 3rd Court of Appeals in 2006 in DWC v. Lumbermens and in 2013, last year, 

in the Nat’l Ins. and DWC & Commissioner v. TPCIGA decisions.19

 The DWC and 

the Commissioner are clearly necessary to have the Texas Workers’ 

Compensation Act and other applicable statutes properly applied in workers’ 

compensation disputes concerning legal rights. 

If the DWC and the Commissioner are correct, then the Judicial Branch of 

Texas government would lose its oversight of the Executive Branches proper 

application, proper interpretation, and proper enforcement of the laws adopted 

by the Texas Legislature and state agencies would be free to violate the very 

statutes which the agency and the state official is bound to uphold. 

The State Appellees, the DWC and the Commissioner, appear to wish to 

avoid clear legal statutory construction and proper statutory application 

questions raised by the Appellant. This case involves a justiciable controversy, 

properly exhausted administrative remedies, and clear questions of law 

 

19 Texas Dep. of Ins., Div. of Workers’ Compensation v. Lumbermens Mut. Cas. Co., 

212 S.W.3d 870 (Tex App.—Austin 2006, pet. denied); Nat'l Am. Ins. Co. and TDIDWC and Commissioner Bordelon in his official capacity v. Tex. Prop. & Cas. Ins. 

Guar. Ass'n, No. 03-09-00680-CV, 2013 WL 4817637, 2013 Tex. App. LEXIS 10865 

(Tex. App.--Austin Aug. 28, 2013, no pet.) 
No. 05-15-00195-CV Dr. Vanderwerff Appellant’s Brief 

10

concerning statutory interpretations, alleged statutory violations by the DWC and 

failure to properly apply the law. The DWC and the Commissioner cannot avoid 

the law and cannot hide from being required to follow the law when the state 

agency’s actions violate the statutory requirements.

Appellant is not seeking damages from the state Defendants. Appellant is 

seeking to enforce the statutory rights violated by the Defendants. 

 
No. 05-15-00195-CV Dr. Vanderwerff Appellant’s Brief 

11

ARGUMENT & AUTHORITY 

Issue No. 1: When a state agency intervenes in a lawsuit, does the District Court 

have 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? 

 

1. The DWC Intervened as a Party and the District Court erred in Dismissing 

the TDI-DWC. 

 The District Court dismissed the DWC when the DWC intervened in this 

matter. Unlike many declaratory relief cases argued below and herein, the DWC 

intervened in this lawsuit, and the DWC plead:20

As provided by the Labor Code, upon timely petition, the Division must be 

allowed to intervene in a suit for judicial review and is not required to show 

a justiciable interest in a case to do so. See Tex. Workers’ Comp. Comm’n v. 

Hartford Acc. & Indem. Co., 952 S.W.2d 949, 953 (Tex. App.—Corpus Christi 

1997, pet. denied). Unless an intervention is struck, an intervenor is a party 

for all purposes and should be considered a party-plaintiff. Id. (citing ESIS, 

Inc. Servicing Contractor v. Johnson, 908 S.W.2d 554, 563 (Tex. App.—Fort 

Worth 1995, writ denied)). 

Appellant agrees with the DWC’s own pleading. Once the DWC intervened, the 

DWC became a party for all purposes including being subjected to proper 

declaratory relief to ensure the DWC does not violate the statutory terms. The 

 

20 CR 107, DWC’s Amended Petition in Intervention
No. 05-15-00195-CV Dr. Vanderwerff Appellant’s Brief 

12

DWC is not allowed to intervene and only have its legal questions answered ------ 

. The DWC intervened and then filed a plea to the jurisdiction praying in part that 

the judge “dismiss the Division from this case.” CR 198. May a state agency 

intervene in and join a lawsuit and then hypocritically request dismissal from the 

lawsuit especially where the Judicial Branch will likely hold the state agency and 

its official accountable for misapplying and ignoring the laws of the Legislature. 

 The substantive statutory issues are clear. A phone number and a website 

link is not the proper written notifications about an insurance carrier’s network 

that is required by law to be provided to employees by the Legislature. The Texas 

Insurance Code Section 1305.451 requires insurance carriers through their 

insured employers to provide employees “an accurate written description of the 

terms and conditions for obtaining health care within the network's service area.” 

Section 1305.451 additionally mandates: 

(b) The written description required under Subsection (a) must be in English, 

Spanish, and any additional language common to an employer's employees, 

must be in plain language and in a readable and understandable format, and 

must include, in a clear, complete, and accurate format: . . . 

(12) a list of network providers updated at least quarterly, including: 

(A) the names and addresses of the providers; 

(B) a statement of limitations of accessibility and referrals to 

specialists; and 

(C) a disclosure of which providers are accepting new patients;
No. 05-15-00195-CV Dr. Vanderwerff Appellant’s Brief 

13

Incomprehensibly, the DWC’s live pleading is that:21 “The Division correctly 

determined that the provision of a network weblink is sufficient notice to workers 

of healthcare network providers.” Is being given notice to call “1-866-245-6472 or 

log onto the website www.mywcinfo.com”

22 proper written notice in a clear 

complete and accurate format a list of network providers? Such a phone number 

and a website link is not even close to the statutory written notice requirements. 

 An injured employee, much less any employee, is not required by any law to 

try to muddle through a website to find detailed information that is to be 

provided to the employee in writing and in a complete and accurate format and 

updated quarterly. How hard is it to give an employee a list of insurance 

company doctors with all the required information as the statute demands? 

 This is not a case where the state agency was sued and found to have 

immunity from suit. Contrast with Roal Global Corp. v. City of Dallas, 2015 Tex. 

App. LEXIS 5205 (Tex. App. Dallas--May 21, 2015, no pet. h.); City of McKinney v. 

Hank's Rest. Group, L.P., 412 S.W.3d 102, 112 (Tex. App.—Dallas 2013, no pet.); 

Harvel v. Tex. Dep't of Ins.-Div. of Workers' Comp., 13-14-00095-CV, 2015 Tex. 

 

21 DWC Amended Intervention Petition at CR 112. 

22 See Plaintiff’s Amended Petition, CR 147
No. 05-15-00195-CV Dr. Vanderwerff Appellant’s Brief 

14

App. LEXIS 5159, 2015 WL 2452703 (Tex. App. Corpus Christi--May 21, 2015, 

motion for rehearing to be filed) (13th Court of Appeals determined sovereign 

immunity bars the claims against state agency.) 

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

issues, which arguably includes network arising out of Chapter 1305 of the 

Texas Insurance Code. 

Labor Code section 410.255 would require the DWC be made a party under 

a “substantial evidence review” standard. The 3rd Court of Appeals explained the 

two judicial review avenues under Chapter 410 of the Texas Labor Code:23

Section 410.301 HN4 provides that suits "regarding compensability or 

eligibility for or the amount of income or death benefits" are governed by 

modified de novo review. Tex. Lab. Code Ann. § 410.301. Substantialevidence review is reserved as the default for any other type of reviewable 

appeals panel decision. See id. § 410.255. 

To anticipate the DWC’s response that 410.255 would mandate venue in Travis 

County—such is not accurate because 410.252 controls judicial review and 

requires venue in the county of the worker’s residence under either subchapter F 

(410.255) or subchapter G (410.301) of Chapter 410 of the Texas Labor Code. So 

even if Labor Code section 410.255 applies to network issues and then Texas 

 

23 Tex. Prop. & Cas. Guar. Ass'n v. Nat'l Am. Ins. Co., 208 S.W.3d 523, 533 (Tex. 

App.--Austin 2006, pet. denied). 
No. 05-15-00195-CV Dr. Vanderwerff Appellant’s Brief 

15

Government Code section 2001.171 et seq. applies in this case (though such 

assertion is definitely contested), venue is still mandatory in Dallas County. Under 

Texas Government Code section 2001.176(b)(1) a petition must be filed in Travis 

County “unless provided otherwise by statute.” Travis County is the default if 

the specific statute does not provide otherwise—here it provides local venue. 

Texas Labor Code section 410.252(b)(1) statutorily mandates venue in the 

worker’s county of residence (Dallas County) at the time of the injury. This is 

consistent with the administrative hearings in this matter being held in the local 

DWC field office within 75 miles of the worker’s residence under Texas Labor 

Code section 410.005. Worth noting is section 410.252 precedes section 410.255, 

and both of these sections are part of Subchapter F of Chapter 410. Any attempt 

to say section 410.252 does not apply to section 410.255 would be contrary to the 

express language of the statute. 

The 3rd Court of Appeals previously addressed whether the backup 

mandatory Travis County venue under the Guaranty Act controlled over the 

required mandatory county of an injured worker’s residence under the Texas 

Workers’ Compensation Act. See respectively, TEX. INS. CODE § 462.017(b) and TEX.

LAB. CODE § 410.252(b). See TEX. LAB. CODE § 410.252(b)(1) (party bringing suit 

must file petition in county where employee resided at time of injury); Campos v. 
No. 05-15-00195-CV Dr. Vanderwerff Appellant’s Brief 

16

Texas Prop. & Cas. Ins. Guar. Ass'n, 282 S.W.3d 226, 230 (Tex. App.—Austin 2009, 

no pet.). In Campos v. TPCIGA, this Court properly determined that the 

mandatory venue under Texas Labor Code §410.252(b)(1) the Texas Workers’ 

Compensation Act trumped the conflict with the Insurance Code. The 3rd Court 

determined:24

In our view, the specific venue provision of the Workers' 

Compensation Act controls over the general venue provision of the 

Guaranty Act. 

If the network issues transported over from Insurance Code Section 1305 to 

Chapter 410 of the Labor Code are considered these “other issues,” then the 

DWC is a proper party under Texas Labor Code Section 410.255. 

3. Declaratory Relief is Proper & Needed When the DWC Misapplies the Law 

and Violate the Law. 

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

available at all against the DWC and the Commissioner. All parties involved will 

be affected by the declaratory judgment action and to be of any force and effect, 

the UDJA unequivocally mandates: 

(a) When declaratory relief is sought, all persons who have or claim any 

interest that would be affected by the declaration must be made parties. A 

 

24 Campos v. Texas Prop. & Cas. Ins. Guar. Ass'n, 282 S.W.3d 226, 231 (Tex. App.—

Austin 2009, no pet.) 
No. 05-15-00195-CV Dr. Vanderwerff Appellant’s Brief 

17

declaration does not prejudice the rights of a person not a party to the 

proceeding. 

TEX. CIV. P. & REM. CODE § 37.006. See Brooks v. Northglen Ass'n, 141 S.W.3d 158, 

163 (Tex. 2004) (The Texas Supreme Court noted that no fault and no prejudice 

lies with non-parties to the UDJA). If the Appellees, the DWC and the 

Commissioner, were not parties, then they would not be bound to follow the 

District Court’s declarations. 

4. The DWC and Commissioner Previously Have Been Determined Proper 

Parties in UDJA Actions 

 The 3rd Court of Appeals recently emphasized that a declaratory judgment 

action is allowed for matters within and proper where a party “asked the court to 

declare its rights and status under certain statutory provisions” involving the 

Texas Workers’ Compensation Act. Nat'l Am. Ins. Co. and TDI-DWC and 

Commissioner Bordelon in his official capacity v. Tex. Prop. & Cas. Ins. Guar. Ass'n, 

No. 03-09-00680-CV, 2013 WL 4817637, 2013 Tex. App. LEXIS 10865 (Tex. App.--

Austin Aug. 28, 2013, no pet.) (mem. op.). The 3rd Court rejected the DWC’s and 

the Commissioner’s position that the trial court did not have jurisdiction to 

construe the statutes in issue and determined in part that “the trial court had 

jurisdiction to construe the statutes in issue.” Id. The statutes in issue all were 
No. 05-15-00195-CV Dr. Vanderwerff Appellant’s Brief 

18

sections of the Texas Workers’ Compensation Act under the Texas Labor Code. 

The parties were an insurance carrier, TPCIGA acting on behalf of an insurance 

carrier in receivership, and the DWC and the Commissioner. This Court should 

also allow a declaratory judgment to proceed to enforce compliance with the 

statutory terms. As the 3rd Court of Appeals explained in upholding the right to 

declaratory relief in the Nat’l American case:25

A declaratory judgment action is proper only if a justiciable controversy exists 

as to the rights and status of the parties and the controversy will be resolved 

by the declaration sought. Bonham State Bank v. Beadle, 907 S.W.2d 465, 

467 (Tex. 1995). 

A clear controversy exists with regards to to the DWC and the Commissioner’s 

proper application of the statutory requirements. 

5. Insurance Carriers Are Allowed Declaratory Actions Against the TWCC and 

the DWC (now the DWC). 

 In 2003, the Third Court of Appeals allowed one insurance carrier to bring a 

declaratory judgment action against the injured worker and the Texas Workers’ 

Compensation Commission, the predecessor to the DWC, after having exhausted 

administrative remedies was proper under the Uniform Declaratory Judgment 

Act. Tex. Workers' Compensation Ins. Fund v. Tex. Workers' Compensation 

Comm'n & Watts, 124 S.W.3d 813, 820 (Tex. App.--Austin 2003, pet. denied). The 

 

25 Id. 
No. 05-15-00195-CV Dr. Vanderwerff Appellant’s Brief 

19

3

rd Court of Appeals in TWCIF v. TWCC allowed a declaratory action but agreed 

with the TWCC’s statutory interpretation. 

 In 2006, the Third Court of Appeals in Lumbermens upheld the jurisdiction of 

the district court under the Uniform Declaratory Judgments Act, UDJA after an 

analogous matter arising out of a Chapter 410 proceeding. Texas Dep. of Ins., Div. 

of Workers’ Compensation v. Lumbermens Mut. Cas. Co., 212 S.W.3d 870 (Tex 

App.—Austin 2006, pet. denied). The Lumbermens court stated: 

The UDJA does not confer jurisdiction on trial courts; rather, it is merely a 

procedural device for deciding cases already within a court's jurisdiction. . . . 

Accordingly, we hold that the trial court had jurisdiction under the UDJA and 

overrule the Division's second issue. 

Lumbermens at 875. The authority clearly exists to use the UDJA, specifically 

§37.004, to pursue a declaration of statutory interpretation even when a rule 

violates the Texas Workers’ Compensation Act for cases which administrative 

remedies have been exhausted under Chapter 410. 

 The 3rd Court in the Lumbermens case, TWCIF v TWCC, and the Nat’l Amer. 

and TDI-DWC v. TPCIGA, simply allowed and upheld declaratory judgments with 

the DWC as a proper party. In each case including the case decided last year, the 

DWC objected to the declaratory actions; however, the 3rd Court of Appeals 
No. 05-15-00195-CV Dr. Vanderwerff Appellant’s Brief 

20

allowed each declaratory action to proceed and determined the meaning of the 

statutes in question. These three declaratory actions determined statutory rights 

in matters like this one arising after exhaustion of administrative remedies under 

Chapter 410 of the Texas Labor Code. This is a case challenging the state agency 

and the insurance carrier’s improper application, interpretation, and lack of 

compliance and enforcement of state laws. When the Legislature declares a 

6.25% state sales tax rate, a state agency could not try to declare and misapply a 

7% state sales tax. When the Legislature declares complete and accurate and 

detailed written notice be provided to workers, a state agency and its official 

head cannot simply allow a website link to be provided. 

 The TWCIF v. TWCC and the Lumbermens cases were brought as a 

declaratory judgment action in conjunction with challenging a final decision from 

the Chapter 410 dispute process in the Texas Labor Code. Likewise, the Nat’l 

Amer. v. TPCIGA also was brought as a declaratory judgment action subsequent to 

a final Chapter 410 contested case hearing yet in a separate proceeding. These 

cases illustrate the need for an actual controversy and that Courts are allowed to 

address declaratory judgments on matters within their jurisdiction after 

administrative remedies have been exhausted. Unlike those cases, the DWC 

intervened in this matter. 
No. 05-15-00195-CV Dr. Vanderwerff Appellant’s Brief 

21

6. The DWC and the Commissioner Relied Below on Inapplicable and 

Distinguishable Decisions 

 The Appellees relied upon easily distinguishable cases. In the District Court, 

the Appellees relied in part upon Beacon Nat 'I Ins. Co. v. Montemayor, 86 S.W.3d 

260, 267 (Tex. App.-Austin 2002, no pet.). In Beacon v. Montemayor, the 3rd

Court of Appeals explained: 

The UDJA waives this immunity when a party seeks a court's construction of 

a statute or rule. City of LaPorte v. Barfield, 898 S.W.2d 288, 297, 38 Tex. Sup. 

Ct. J. 533 (Tex. 1995). Beacon's action does not seek construction of a statute 

or rule; . . . . 

This shows that the party seeking the declaration in Beacon did not seek proper 

statutory construction or clarification unlike the declaratory requests here. 

 Further, the Appellees below cited to Kuntz v. Khan, No. 03-10-00 160-CV,

2011 Tex. App. LEXIS 446, 2011 WL 182882,(Tex. App.--Austin 2011, no 

pet.)(mem. op.). Kuntz v. Khan rejected a declaratory judgment because “the 

effect of a favorable ruling in either lawsuit would be the same—if Khan prevails 

in either suit, the result would be a determination that the Department has no 

authority to regulate eyebrow threading.” Kuntz v Khan addressed a suit directly 

against and enforceable against the state agency, which the DWC and the 

Commissioner are not necessary parties to a judicial review action under Chapter 
No. 05-15-00195-CV Dr. Vanderwerff Appellant’s Brief 

22

410 without the legal declaratory relief sought. 

 Likewise the DWC below relied upon Young Chevrolet, Inc. v. Tex. Motor 

Vehicle Bd., 974 S.W.2d 906,911 (Tex. App.--Austin 1998, pet. denied), which also 

involved direct actions against the state regulatory agency as a party creating 

enforceability against the agency without the need for a declaration. 

 Kuntz v Khan and other cases involving direct judicial challenges to a state 

agency are in direct contrast here where the DWC is not a mandatory party under 

Chapter 410 disputes except under Section 410.252, and the only method to 

enforce proper statutory construction and enforcement against the DWC and the 

Commissioner is, simply and legally, to make the DWC and the Commissioner a 

party, in fact a necessary party for legal declarations of statutory meanings, rights, 

applications, and proper enforcement. 

 Again, this matter involves a dispute with a health care provider and an 

insurance carrier, but to bind the regulatory state agency, the DWC and the 

Commissioner, in his official capacity, are necessary and proper parties when 

declaratory relief is sought to ensure compliance and that state officials do not 

act ultra vires.

7. The District Court Has Jurisdiction over all the Claims 
No. 05-15-00195-CV Dr. Vanderwerff Appellant’s Brief 

23

 The Appellant has exhausted his administrative remedies before the DWC 

and the Commissioner with an unfavorable ruling based upon statutory 

construction and misapplication and refusal to comply with the law by the 

Appellees. When reviewing a plea to the jurisdiction, the pleadings are construed 

in favor of the non-movant. See Tex. Dep't of Parks & Wildlife v. Miranda, 133 

S.W.3d 217, 226 (Tex.2004); Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 

440, 446 (Tex.1993). “The general test for standing in Texas requires that there (a) 

shall be a real controversy between the parties, which (b) will be actually 

determined by the judicial declaration sought.” Tex. Ass'n of Bus., 852 S.W.2d at 

446. 

To prevail, the party asserting the plea to the jurisdiction must show that 

even if all the allegations in the plaintiff's pleadings are taken as true, there is an 

incurable jurisdictional defect apparent from the face of the pleadings, rendering 

it impossible for the non-movant’s claims to confer jurisdiction on the trial court. 

Texas State Employees Union/CWA Local 6184 v. Texas Workforce Comm'n, 16 

S.W.3d 61, 65 (Tex. App.-Austin 2000, no pet.). A court deciding a plea to the 

jurisdiction is not required to look solely to the pleadings, but may consider 

evidence relevant to the jurisdictional issue and must do so when necessary to 

resolve the jurisdictional issues which have been raised. Bland Indep. Sch. Dist. v. 
No. 05-15-00195-CV Dr. Vanderwerff Appellant’s Brief 

24

Blue, 34 S.W.3d 547, 554-55 (Tex. 2000). A court should construe the pleadings in 

the non-movant’s favor and look to the non-movant's intent. Texas Ass'n of 

Business v. Texas Air Control Bd., 852 S.W.2d 440 at 446 (Tex. 1993). A court does 

not address the merits of the case in a plea to the jurisdiction; instead, the 

movant must establish why the merits of the non-movant’s claims should not be 

reached. Bland Indep. Sch. Dist., 34 S.W.3d at 554. The DWC and the 

Commissioner have not shown that Dr. Vandwerff’s suit to properly enforce 

compliance with statutory terms falls outside the jurisdiction of the District Court 

because administrative remedies have been exhausted, and the pleadings 

illustrate why the DWC and the Commissioner must be parties to be able to 

enforce any declarations against the state agency and its administrative head 

when the agency fails to properly follow the Legislature’s laws and acts in 

violation of the state laws. 

8. Resolution of the Controversy with Declaratory Action 

 The judicial declaration sought by Dr. Vanderwerff will help determine and 

likely resolve the controversy concerning when injured workers are provided 

proper written notice of health care providers and that an insurance carrier may 

not dispute its own preauthorized treatment. 

 
No. 05-15-00195-CV Dr. Vanderwerff Appellant’s Brief 

25

9. Texas Courts are “Duty-Bound” to Construe Statutes

Texas District Courts are inherently vested with the power to construe 

statutes, and Courts are not bound by an agencies interpretation or application, 

especially if in error. If a declaratory judgment action terminates the uncertainty 

or controversy giving rise to the lawsuit, the District Court is duty-bound to 

declare the rights of the parties as to the matters on which the parties join issue. 

Spawglass Constr. Corp. v. City of Houston, 974 S.W.2d 876, 878 (Tex. App.--

Houston [14th Dist.] 1998, pet. denied); Calvert v. Employees Ret. Sys. of Tex., 648 

S.W.2d 418, 419 (Tex. App.--Austin 1983, writ ref'd n.r.e.). Without the DWC and 

the Commissioner, the enforcement of the statutes proper application would not 

be available to a judge. 

10. Live Justiciable Controversy Exists 

Appellant also has clearly asserted that the DWC and the Commissioner 

interpretation and application of the laws in question violate the statutes of Texas 

and the statutory responsibility, authority and limits placed upon the DWC and 

the Commissioner and that statutory interpretation and validity of application of 

the Texas Workers’ Compensation Act and Texas Code of Criminal Procedure are 

in dispute. A justiciable controversy regarding whether a state agency or officer 
No. 05-15-00195-CV Dr. Vanderwerff Appellant’s Brief 

26

has acted beyond statutory authority provides a jurisdictional basis for a UDJA 

action seeking construction of that statutory authority. This type of UDJA action 

does not implicate sovereign immunity. Cobb v. Harrington, 144 Tex. 360, 190 

S.W.2d 709, 712 (1945); see also Texas Natural Res. Conservation Comm'n v. ITDavy, 74 S.W.3d 849, 855 (Tex. 2002) (“Private parties may seek declaratory relief 

against state officials who allegedly act without legal or statutory authority.”). A 

suit for declaratory relief is not a suit against the State because it does not seek to 

impose liability or money damages against the state agency. IT-Davy, 74 S.W.3d 

at 853. 

11. Recent Texas Supreme Court Decisions Allow Declaratory Actions to 

Properly Enforce Statutes Allowed Against State Agencies & Agency 

Officials Acting Beyond the Statute 

 The Texas Supreme Court has held that the UDJA waives a municipality's 

immunity against claims challenging the validity of its ordinances. City of El Paso 

v. Heinrich, 284 S.W.3d 366, 373 n.6 (Tex. 2009). The Court explained that that 

the governmental entity retains its immunity from suit when the claimant does 

not challenge the validity of a statute but rather challenges a government officer's 

application of a statute to the claimant. 284 S.W.3d at 372-73 & n.6. How is the 

DWC Commissioner immune from suit when the validity of his final decisions and 

rules are challenged as in violation of the statutory requirements? This is the 
No. 05-15-00195-CV Dr. Vanderwerff Appellant’s Brief 

27

responsibility of the Courts to stop such violations by state officials and state 

agencies. 

 The affected parties remedy is an ultra vires suit against the government 

officer in his or her official capacity for prospective relief. Id. at 369-74. This 

would support DWC Commissioner being a party in this matter to properly apply 

the statutes in question. 

12. Declaratory Statutory Challenges Require State Agency to be a Party 

 Recent Texas Supreme Court cases also support that the state agency is a 

proper party in a declaratory action to determine parties’ rights under the statute 

that the agency regulates and enforces especially where the state agency’s 

violates the statutory terms. Tex. Lottery Comm'n v. First State Bank of DeQueen,

325 S.W.3d 628, 634-35 (Tex. 2010); Tex. Natural Res. Conservation Comm'n v. ITDavy, 74 S.W.3d 849, 859-60 (Tex. 2002); Tex. Educ. Agency v. Leeper, 893 S.W.2d 

432, 446 (Tex. 1994). 

In DeQueen subsequent to Heinrich, the Texas Supreme Court reiterated that 

Declaratory Judgment Act suits to construe statutes are expressly allowed 

jurisdictionally against a state agency. Texas Lottery Commission v. First State 
No. 05-15-00195-CV Dr. Vanderwerff Appellant’s Brief 

28

Bank of DeQueen, 325 S.W.3d 628 (Tex. 2010). The DWC and the Commissioner 

are proper parties because without them the statutory legal questions and 

statutory application would not be applicable to the DWC and the Commissioner. 

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:26

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. In Leeper, . . . . the DJA discussion was in the context of a 

statutory clarification. . . . . The decision on this claim may ultimately 

impact actions taken by officers of the Commission, but that does not 

deprive the trial court of jurisdiction. [Leeper] at 445 (noting that the DJA 

allows courts to declare relief "whether or not further relief is or could be 

claimed"). The trial court properly exercised jurisdiction over this claim. 

Subsequent to DeQueen, the Texas Supreme Court in Sefzik explained:27

As noted, we dismissed Heinrich's claims seeking declaratory and injunctive 

relief against governmental entities, brought under the UDJA, because the 

 

26 DeQueen, 325 S.W.3d 628 at 635. 

27 Tex. DOT v. Sefzik, 355 S.W.3d 618, 621-622 (Tex. 2011). 
No. 05-15-00195-CV Dr. Vanderwerff Appellant’s Brief 

29

entities were immune. In so doing, we necessarily concluded that the UDJA 

does not waive the state's sovereign immunity when the plaintiff seeks a 

declaration of his or her rights under a statute or other law. Very likely, the 

same claim could be brought against the appropriate state official under the 

ultra vires exception, but the state agency remains immune. See id. at 372-

73. As we have consistently stated, the UDJA does not enlarge the trial 

court's jurisdiction [622] but is "merely a procedural device for deciding 

cases already within a court's jurisdiction." Tex. Parks & Wildlife Dep't v. 

Sawyer Trust, 354 S.W.3d 384, 2011 Tex. LEXIS 640, *8 (2011) (quoting Tex. 

Ass'n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 444 (Tex. 1993)). 

Sefzik would have allowed a claim for statutory rights enforcement and 

declaration to be brought as long as the appropriate state official be named—

which the DWC Commissioner is named herein if Heinrich even applies where the 

state agency has joined this lawsuit between private parties. 

 Noteworthy is that the DWC and the Commissioner in their initial response 

to request for disclosure as to their legal theories duck the substantive issues:28

 The Division reserves the right to more substantively respond to the 

Plaintiff’s asserted UDJA causes of action should the Court decide that the 

causes of actions are within its jurisdiction. The Division further reserves 

the right to substantively respond to the UDJA causes of action as it gains 

greater clarity as to the nature of the declaration that Plaintiff seeks. 

The DWC and the Commissioner have apparently deferred properly responding to 

the statutory interpretation, clarification, and application of legal theories of an 

 

28 1 CR 46 
No. 05-15-00195-CV Dr. Vanderwerff Appellant’s Brief 

30

injured Texas peace officer becoming in the course and scope of employment. 

Allowing this matter to proceed will get the statutory clarification and rights 

properly interpreted and enforceable against the DWC. 

13. Declaratory Actions Allowed Even After Prior Final Judgments under 

Chapter 410 of the Texas Labor Code to Determine Statutory Rights 

 The 3rd Court of Appeals recently allowed a declaratory judgment action 

against the DWC, the Commissioner, and an insurance carrier to determine 

statutory rights after a previous final judgment under a Texas Labor Code Chapter 

410 dispute. Nat'l Am. Ins. Co. v. Tex. Prop. & Cas. Ins. Guar. Ass'n for Paula Ins. 

Co., 2013 Tex. App. LEXIS 10865 (Tex. App.--Austin Aug. 28, 2013, no pet.). The 3rd

Court, in allowing the declaratory action to proceed, explained that it was not a 

collateral attack on the prior judgment because: “the controversy underlying the 

Guaranty Association's declaratory judgment action concerns NAIC's rights vis-avis the Guaranty Association under section 410.033 of the Labor Code and the 

Guaranty Act. The declaratory judgment action regarding reimbursement thus 

involves the existence of a statutory right . . . .” Clearly, declaratory actions over 

statutory rights and the proper enforcement of those rights under the Labor Code 

and the Code of Criminal Procedure are allowed where, as here, a live controversy 
No. 05-15-00195-CV Dr. Vanderwerff Appellant’s Brief 

31

exists and administrative remedies have been exhausted. 

 Further, the state agency is a necessary party when the authority of the state 

agency’s actions and rules are questioned as violating the will of the Legislature. 

The DWC and the Commissioner being joined in this matter makes this 

declaratory action proper so as to be enforced against the DWC and the 

Commissioner to not violate the statutes. The Third Court previously explained: 

The UDJA grants any litigant whose rights are affected by a statute the 

opportunity to obtain a declaration of those rights under the statute and 

requires that all relevant parties be joined in any declaratory judgment suit. 

Tex. Civ. Prac. & Rem. Code Ann. §§ 37.004, .006 (West 1997); City of Waco v. 

Texas Nat. Res. Comm'n, 83 S.W.3d 169, 179 (Tex. App.-Austin 2002, pet. 

denied) (UDJA claim not barred by sovereign immunity because UDJA serves to 

clarify rights already guaranteed by legislature). Therefore, when the State is a 

necessary party to a statutory cause of action, such as a UDJA action for 

interpretation of a statute, sovereign immunity is expressly waived because, 

were the State not joined, the right to a declaration would have no practical 

effect. See City of La Porte v. Barfield, 898 S.W.2d 288, 297 (Tex.1995) 

(construing Texas Educ. Agency v. Leeper, 893 S.W.2d 432, 446 (Tex.1994)); see 

also Beacon Nat'l Ins. Co. v. Montemayor, 86 S.W.3d 260, 267 (Tex. App.--

Austin 2002, no pet.) (“The UDJA waives [sovereign] immunity when a party 

seeks a court's construction of a statute or rule.”); Star Houston v. Texas Dep't 

of Transp., 957 S.W.2d 102, 111 (Tex. App.--Austin 1997, pet. denied) (holding 

that sovereign immunity did not bar declaratory judgment determining 

whether agency has wrongfully construed a statute); City of Austin, 728 S.W.2d 

at 910-11 (holding UDJA action brought against government entity to 

determine scope of entity's authority not barred by sovereign immunity). A 

UDJA action exists whether or not further relief can be obtained. Leeper, 893 

S.W.2d at 446. Thus, when a party brings a declaratory judgment action to 

interpret an agency's statutory authority, immunity from suit is waived by the 

UDJA. This does not mean, however, that immunity from damages is waived 
No. 05-15-00195-CV Dr. Vanderwerff Appellant’s Brief 

32

except as to a declaration of the parties' rights and the potential award of 

attorney's fees. UDJA actions for statutory interpretation do not implicate the 

policy concerns of protecting the legislature's policy-making discretion and 

avoiding raids on the public treasury embodied in the sovereign immunity 

doctrine-rather, they serve to clarify the rules and requirements imposed by 

the legislature on the administrative agencies. 

(Emphasis added.) Texas Mun. Power Agency v. Public Utility Com'n, 100 S.W.3d 

510, 515-516 (Tex. App.--Austin 2003, pet. denied) (cited to favorably by Texas 

Mun. Power Agency v. Public Utility Com'n of Texas, 253 S.W.3d 184, 189 (Tex. 

2007). Appellant does not seek damages from the DWC or the Commissioner, but 

to clarify and to enforce proper compliance with the statutory requirements on 

the administrative agency and its head official. This declaratory action is expressly 

in part for statutory interpretation and proper application to include whether the 

DWC, the Commissioner and the Insurance Carrier have ignored and failed to 

follow the statutory requirements under the law. The DWC should not be 

allowed to continue to improperly interpret and fail to enforce the Texas 

Insurance Code and the Texas Labor Code. 

14. Declaratory Actions under the Texas Workers’ Compensation Act

The initial challenge to the 1989 Texas Workers’ Compensation Act in Garcia 
No. 05-15-00195-CV Dr. Vanderwerff Appellant’s Brief 

33

was primarily a declaratory judgment action.29 The Texas Supreme Court 

reiterated as to the declaratory action against the then TWCC and the Executive 

Director looking at the terms and Constitutionality of the 1989 Act:30

Standing, which is a necessary component of subject matter jurisdiction, 

requires a) a real controversy between the parties, which b) will be actually 

determined by the judicial declaration sought. 

The DWC and the Commissioner’s actions ignore the statutory requirements to be 

applied against insurance carriers and employers and in favor of workers and 

health care providers. 

 Appellant has exhausted all applicable administrative remedies under 

Chapter 410 of the Texas Labor Code. A UDJA claim is sui generis; and, all other 

things being equal, the district court's subject matter jurisdiction over it exists 

independently of any administrative remedies. Texas Liquor Control Bd. v. Canyon 

Creek Land Corp., 456 S.W.2d 891, 895 (Tex.1970); Cobb, 190 S.W.2d at 713; see 

Texas Mun. Power Agency v. Public Util. Comm'n, 100 S.W.3d 510, 520 (Tex. App.-

-Austin 2003, pet. denied). Even if the UDJA claims in this matter could not be 

brought independently, the claims certainly could be brought within the 

jurisdiction created by the administrative dispute. 

 

29 Texas Workers' Compensation Commission v. Garcia, 893 S.W.2d 504, 517-518 

(Tex. 1995).

30 Garcia at 513. 
No. 05-15-00195-CV Dr. Vanderwerff Appellant’s Brief 

34

 The Third Court of Appeals in Mid-Century Insurance Company v. Texas 

Workers’ Compensation Commission, 187 S.W.3d 754 (Tex. App.—Austin 2006, no 

pet.), determined that a rule exceeded the statutory authority of the DWC and 

noted that: 

Mid-Century Insurance Company (Mid-Century) sought a declaration that this 

rule exceeds the Division's statutory powers and is thus invalid. See Tex. Civ. 

Prac. & Rem. Code Ann. § 37.004 (West 1997). 

Id. at 756. Without declaratory actions, the statutes could be ignored by the 

DWC and the Commissioner with enforcement only on a piece-meal basis by 

litigants who are able to challenge improper agency actions. 

Whether the District Court, or any Court, ultimately rules in Appellant’s

favor or not—the District Court certainly can declare rights of the interested 

parties, a subclaimant for an injured worker, a health care provider, and an 

insurance carrier, directly affected by the applicable state agency and agency 

head, under the statutes as a matter of law especially where administrative 

remedies have been exhausted. See Tex. Workers' Compensation Ins. Fund v. Tex. 

Workers' Compensation Comm'n, 124 S.W.3d 813 (Tex. App.--Austin 2003, pet. 

denied).

Further, a suit under the UDJA is not confined to cases in which the parties 

have a cause of action apart from the Act itself. Transportation Ins. Co. v. Franco,
No. 05-15-00195-CV Dr. Vanderwerff Appellant’s Brief 

35

821 S.W.2d 751, 754 (Tex. App.--Amarillo 1992, writ denied) (determined 

jurisdiction under the declaratory judgment Act in the Potter County District 

Court to determine the validity of a compromise settlement agreement under the 

“old law” workers’ compensation statute). 

15. ENFORCABILITY: UDJA is Especially Necessary where the DWC Refuses 

to Recognize Chapter 410 District Court Rulings as Legally Binding 

The DWC’s position on individual Chapter 410 judicial review cases is that mere 

district court reversals of a final DWC decision under Chapter 410 of the Texas 

Labor Code are not binding as to the DWC’s interpretation even if it is improper as 

to any other case. The DWC Appeals Panel has reiterated that:31

that the decision of a [city 1] District Court had no effect "beyond its factual 

context" and did not bind the Texas Workers' Compensation Commission 

(Commission) as a matter of stare decisis in the Commission's interpretation 

of the 1989 Act. 

This shows the Catch-22 that the DWC places all parties under that the DWC and 

Commissioner’s disregard for a court decision beyond “its factual content” unless, 

as here, the DWC and Commissioner are made parties or intervene. This matter 

is of significant public importance and concerns the very line drawn as to the 

entry into course and scope of employment by Texas peace officers. 

 

31 DWC APPEAL NO. 050140, 2005 TX Wrk. Comp. LEXIS 57 (decided March 14, 

2005)
No. 05-15-00195-CV Dr. Vanderwerff Appellant’s Brief 

36

Only after the appellate decision upholding declaratory judgment in Lumbermens

become final did the DWC Appeals Panel follow the declaration:32

Lumbermens Mutual Casualty Company filed suit against the Division seeking 

in part a declaratory judgment that the Advisories are inconsistent with 28 

TEX. ADMIN. CODE § 130.1 (Rule 130.1) and that their issuance and 

application is outside the Division's statutory authority. 

The Advisories have been declared invalid and their application an ultra vires

act. Lumbermens, supra. Therefore, the adoption of an IR that is based on 

the Advisories is legal error and must be reversed. Prior Appeals Panel 

decisions applying the Advisories to rate impairment for spinal fusion surgery 

have been overruled by the Lumbermens case. 

The DWC will follow a declaratory judgment as to statutory rights and its prior 

errors, but will not apply a District Court’s reversal of a single workers’ 

compensation dispute decision beyond the single workers’ compensation claim. 

The DWC’s own decisions signify why declaratory judgments are allowed and 

clearly necessary in this matter. 

Here are several more final DWC decisions from over the years refusing to follow 

the law in District Court cases: 

(1) DWC APPEAL NO. 94994, 1994 TX Wrk. Comp. LEXIS 6081, September 9, 

1994: “. . . nor is the Commission joined as a party. The decision is without 

 

32 DWC Appeals Panel No. 071023-s, decided July 23, 2007, 2007 TX Wrk. Comp. 

LEXIS 54. 
No. 05-15-00195-CV Dr. Vanderwerff Appellant’s Brief 

37

effect, therefore, beyond its factual context, and certainly the Commission 

is not bound by such a general judgment of a district court, through stare 

decisis, in its interpretation of the Section 409.021.” (Emphasis added.)

(2) DWC APPEAL NO. 951802, 1995 TX Wrk. Comp. LEXIS 4964, December 13, 

1995, emphasizing: “We do not consider the Appeals Panel bound by this 

district court opinion in a case involving other parties and in which the 

commission did not participate.”

(3) DWC Appeal No. 990005, 1999 TX Wrk. Comp. LEXIS 3029, decided 

February 19, 1999: “The Appeals Panel is not bound by a district court 

opinion in a case involving other parties and in which the Commission did 

not participate. Texas Workers' Compensation Commission Appeal No 

94994, decided September 9, 1994.” (Emphasis added.)

Appellant is legally correct in making the DWC and the Commissioner a party to a 

proceeding in which legal determinations are sought to bind the DWC and the 

Commissioner. Again, here the DWC voluntarily intervened. 

 This underlying legal questions have not been declared and determined and 

are not yet up on appeal, but the declarations sought under the statutes are 

critical to resolving this matter. 
No. 05-15-00195-CV Dr. Vanderwerff Appellant’s Brief 

38

16. Declaratory Judgment Prevents Continued Erroneous Statutory 

Interpretation by the DWC and the Commissioner 

In the workers’ compensation area, after final administrative decisions as 

here, both insurance carriers and injured workers’ have sought declaratory rulings 

concerning the validity and applicability of the DWC and the Commissioner 

statutes and rules. See Mid-Century, supra; Fulton v. Associated Indemnity 

Company, 46 S.W.3d 364 (Tex. App—Austin 2002, pet. denied); Houston General 

Insurance Co. v. Association Casualty Insurance Co., 977 S.W.2d 634 (Tex. App.—

Tyler, no pet.). Venue of the main action shall establish venue of a counterclaim, 

cross claim, or third-party claim properly joined under the Texas Rules of Civil 

Procedure or any applicable statute. TEX. CIV. PRAC. & REM. CODE §5.062(a); Howell 

v. Texas Workers' Compensation Com'n, 143 S.W.3d 416, 433 (Tex. App.--Austin 

2004, pet. denied). A declaratory judgment simply declares the rights, status, or 

other legal relations of the parties; and under Tex. Civ. Prac. & Rem. Code 

§37.003(a), (b), a trial court has the “power to declare rights, status, and other 

legal relations whether or not further relief is or could be claimed,” and 

declaration has the “force and effect of a final judgment or decree”. Howell at

432. Without the DWC and the Commissioner present, Appellant’s pleadings and 

claims for relief would have little effect if not arguably result in an inability to be 
No. 05-15-00195-CV Dr. Vanderwerff Appellant’s Brief 

39

enforced against the DWC and the Commissioner at all if in fact the DWC and the 

Commissioner are not a party. 

CONCLUSION 

This Court should allow Dr. Vanderwerff 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. 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 makes sure the laws are properly applied 

and correctly interpreted. 
No. 05-15-00195-CV Dr. Vanderwerff Appellant’s Brief 

40

PRAYER 

Dr. Vanderwerff, Appellant, respectfully praysand ask that this Court should 

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

the DWC, and not allow 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. 05-15-00195-CV Dr. Vanderwerff Appellant’s Brief 

41

CERTIFICATE OF COMPLIANCE 

I certify that I have 9,285 word count checked by the word program in compliance 

with the Texas Rules of Appellate Procedure. 

Bradley Dean McClellan 

CERTIFICATE OF SERVICE 

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

through counsel of record by the method indicated below on May 26, 2015. 

DOUGLAS D. GEYSER, Assistant Solicitor General

ADRIENNE BUTCHER, Assistant Attorney General

OFFICE OF THE ATTORNEY GENERAL

P.O. Box 12548 (MC 059)

Austin, Texas 78711-2548

Tel.: (512) 936-2540

Fax: (512) 474-2697

douglas.geyser@texasattorneygeneral.gov

Attorneys for DWC and Commissioner

James M. Loughlin

Stone Loughlin & Swanson, LLP

P.O. Box 3011

Austin, Texas 78755

Facsimile: (512) 343-1385

jloughlin@slsaustin.com 

Counsel for Defendant Travelers

Via efiling/eservice

Via efiling/eservice

/s/ Brad McClellan 

Bradley Dean McClellan