Opinion filed April 8, 2021

In The

Eleventh Court of Appeals __________

No. 11-19-00123-CV

__________

PEDRO DE LA ROSA AND ANGELINA DE LA ROSA, Appellants

V.

BASIC ENERGY SERVICES, L.P., BY AND THROUGH ITS 

GENERAL PARTNER, BASIC ENERGY SERVICES GP, LLC, 

Appellee

On Appeal from the 441st District Court

Midland County, Texas

Trial Court Cause No. CV52579

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

Appellants, Pedro and Angelina De La Rosa, appeal the trial court’s order 

granting Appellee’s, Basic Energy Services, L.P., plea to the jurisdiction. Because 

the trial court possessed subject-matter jurisdiction over Appellants’ pleaded claims, 

we reverse and remand.
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I. Factual Background

The facts set forth here, with respect to the incidents that gave rise to this suit, 

were derived from the allegations in Appellants’ operative pleadings filed in this 

cause. While employed by Appellee as a tanker-truck driver, Pedro De La Rosa was 

severely injured in a rollover accident as he was transporting water from an oil well 

operated by Endeavor Energy Resources to a disposal site. The rollover occurred in 

the early morning hours on an unpaved dirt road near Mentone, Texas. Pedro had 

worked throughout the night and was transporting his third consecutive load of 

water. It was still dark outside, and Pedro was driving slowly because the road, for 

the approximately fifteen miles leading to and from the well, was unpaved and 

“poorly-maintained.” A large animal ran onto the road as Pedro was maneuvering 

the tanker truck around a large pothole; the tanker truck he was operating then rolled 

over as he attempted to avoid the animal.

Because of the extent of Pedro’s injuries, he was transported by helicopter to 

a hospital in Odessa. Freddie Garcia, the “Area Superintendent” of Appellee’s office 

in Pecos, introduced himself to Pedro at the hospital, and at some point, Pedro heard 

Garcia direct the attending doctor not to provide certain medical care to Pedro “in 

an apparent effort to minimize the records of Pedro’s injuries.” Specifically, Pedro 

heard the attending doctor state that he needed to insert stitches on Pedro’s eye 

cavity; Pedro then heard Garcia instruct the doctor not to do so because “Pedro [was] 

fine.” Later, Pedro applied for and received workers’ compensation benefits to pay 

his incurred medical expenses; he also received income benefits.

Appellants subsequently filed suit against Appellee and others. As to 

Appellee, Appellants alleged that Pedro’s injuries from the rollover were 

intentionally caused (1) by Appellee’s failure to provide a safe place to work and 

(2) by Appellee’s knowledge that its drivers were fatigued and its requirement that 

the drivers nevertheless drive excessive hours with minimal rest. On behalf of Pedro, 
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Appellants further alleged that Appellee’s subsequent conduct during Pedro’s postaccident treatment at the hospital in Odessa caused Pedro to sustain independent 

injuries because Garcia, as Appellee’s agent, pressured and coerced the medical staff 

to withhold medical care from Pedro and to release him prematurely. On behalf of 

Angelina, Appellants also pleaded a claim against Appellee for intentional loss of 

consortium.

In its third amended answer, Appellee included a plea to the jurisdiction in 

which it asserted that Appellants’ claims were barred by the Texas Workers’ 

Compensation Act (the Act) and the affirmative defense of election of remedies. 

Appellants filed a motion to strike Appellee’s plea. After a hearing, the trial court 

denied Appellants’ motion to strike and granted Appellee’s plea to the jurisdiction.

In their sole issue on appeal, Appellants contend that the trial court erred when 

it granted Appellee’s plea.1

 We agree.

II. Standard of Review

Before a court may dispose of a case, it is essential that the court possess 

subject-matter jurisdiction. Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 553–54 

(Tex. 2000). A plea to the jurisdiction is a dilatory plea and a proper method by 

which to challenge a trial court’s subject-matter jurisdiction. Id. at 554. Whether a 

trial court has subject-matter jurisdiction over a case is a question of law that we 

review de novo. Harris Cty. v. Annab, 547 S.W.3d 609, 612 (Tex. 2018) (citing Tex.

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Appellants argue that affirmative defenses may not be raised by a plea to the jurisdiction. Although 

the Texas Supreme Court and some of our sister courts have generally adopted this premise, see State v. 

Lueck, 290 S.W.3d 876, 880 (Tex. 2009); Schmitz v. Denton Cty. Cowboy Church, 550 S.W.3d 342, 361 

n.22 (Tex. App.—Fort Worth 2018, pet. denied); Dallas Cty. v. Cedar Springs Invs. L.L.C., 375 S.W.3d 317, 

321 (Tex. App. —Dallas 2012, no pet.); Univ. of Tex. Med. Branch at Galveston v. Barrett, 112 S.W.3d 815, 

817 (Tex. App.—Houston [14th Dist.] 2003), aff’d, 159 S.W.3d 631 (Tex. 2005); Martinez v. Val Verde Cty. 

Hosp. Dist., 110 S.W.3d 480, 484–85 (Tex. App.—San Antonio 2003), aff’d, 140 S.W.3d 370 (Tex. 2004); 

Tex. Dep’t of Mental Health v. Olofsson, 59 S.W.3d 831, 833 (Tex. App.—Austin 2001, pet. dism’d); 

Anders v. Weslaco Indep. Sch. Dist., 960 S.W.2d 289, 292 (Tex. App.—Corpus Christi–Edinburg 1997, no 

pet.), the application of this principle is not necessary to our disposition of Appellants’ issue on appeal.
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Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004)); Ector 

Cty. v. Breedlove, 168 S.W.3d 864, 865 (Tex. App.—Eastland 2004, no pet.).

The purpose of a plea to the jurisdiction is to defeat a pleaded cause of action 

without reaching the merits. Blue, 34 S.W.3d at 554. A plea to the jurisdiction may 

challenge the pleadings, the existence of jurisdictional facts, or both. Alamo Heights 

Indep. Sch. Dist. v. Clark, 544 S.W.3d 755, 770 (Tex. 2018); City of Merkel v. 

Copeland, 561 S.W.3d 720, 723 (Tex. App.—Eastland 2018, pet. denied). When the 

plea challenges the pleadings, as in the case before us, we determine whether the 

pleader has alleged facts that affirmatively demonstrate the trial court ’s subjectmatter jurisdiction to hear the case. Houston Belt & Terminal Ry. Co. v. City of 

Houston, 487 S.W.3d 154, 160 (Tex. 2016) (citing City of El Paso v. Heinrich, 284 

S.W.3d 366, 378 (Tex. 2009)). Therefore, our review requires that we accept as true 

all factual allegations in the pleadings, that we examine the pleader’s intent, and that 

we construe the pleadings liberally in the pleader’s favor. Id.; Miranda, 133 S.W.3d 

at 226; Cty. of Cameron v. Brown, 80 S.W.3d 549, 555 (Tex. 2002); Tex. Mun. League 

Intergovernmental Risk Pool v. City of Abilene, 551 S.W.3d 337, 342–43 (Tex. 

App.—Eastland 2018, pet. dism’d).

III. Analysis

Appellants assert that the trial court erred when it granted Appellee’s plea 

because they had pleaded sufficient facts to affirmatively show that the trial court 

had subject-matter jurisdiction over their claims. Appellee maintains that the trial 

court properly granted its plea because (1) the Act provides the exclusive remedy for 

Appellants’ claims, (2) Appellants failed to exhaust their administrative remedies, 

and (3) Appellants elected to receive workers’ compensation benefits.2

 We will 

2

We note that Appellee also filed a motion for summary judgment challenging the merits of 

Appellants’pleaded claims on the same grounds; however, this motion was never presented to the trial court 

for a ruling.
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address each ground raised by Appellee upon which the trial court could have 

granted the plea.

A. Exclusive Remedy

The Act provides remedies for the prompt payment of medical expenses and 

lost wages for covered employees who sustain work-related injuries, without the 

injured employee’s needing to prove liability under a common-law tort theory. TIC 

Energy & Chem., Inc. v. Martin, 498 S.W.3d 68, 72 (Tex. 2016) (citing HCBeck, 

Ltd. v. Rice, 284 S.W.3d 349, 350 (Tex. 2009)). In fact, in exchange for the guarantee 

of the payment of workers’ compensation benefits to the injured employee, the Act 

prohibits an injured employee from seeking common law remedies from his 

employer. Id.; see TEX. LAB. CODE ANN. § 408.001(a) (West 2015). Under its 

exclusive-remedy provision, the Act provides an employer that subscribes to 

workers’ compensation insurance immunity from common-law negligence claims 

that may be brought by its employees. LAB. § 408.001(a); Mo-Vac Serv. Co. v. 

Escobedo, 603 S.W.3d 119, 120 (Tex. 2020).

However, the Act’s exclusive-remedy provision does not prohibit an injured 

employee from pursuing intentional-injury claims against his employer. Escobedo, 

603 S.W.3d at 124–25 (noting that the legislature has never codified or rejected 

Middleton’s intentional-injury exception and stating: “Notwithstanding the breadth 

of some of its terms, [the Act’s] evident purpose was to confine its operation to only 

accidental injuries, and its scope is to be so limited.” (quoting Middleton v. Tex.

Power & Light Co., 185 S.W. 556, 560 (Tex. 1916))); Reed Tool Co. v. Copelin, 689 

S.W.2d 404, 406 (Tex. 1985) (“The Texas Workers’ Compensation Act is the 

exclusive remedy for work-related injuries with the exception of intentional 

injury.”). Under Middleton’s intentional-injury exception, an injured employee may 

pursue common law remedies for the intentional torts committed by his employer if 

he can establish the employer’s specific intent to inflict injury. Escobedo, 603 
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S.W.3d at 125; Reed Tool, 689 S.W.2d at 406; see Berkel & Co. Contractors, Inc. v. 

Lee, 612 S.W.3d 280, 285 (Tex. 2020). As such, to prevail on an intentional-injury

claim, the injured employee must establish that his employer intended for, or 

believed that, its actions were substantially certain to result in injury to the employee. 

Berkel, 612 S.W.3d at 285; Escobedo, 603 S.W.3d at 125; Reed Tool, 689 S.W.2d at 

406.

Because the present case is before us on a plea to the jurisdiction, we look to 

Appellants’ pleadings and determine only whether sufficient facts were alleged to 

affirmatively bring their claims within the trial court’s subject-matter jurisdiction. 

In their first amended petition, the “operative pleading” below, Appellants alleged, 

with respect to the rollover incident, that “Basic Energy knew that it was subjecting 

its truck drivers to fatigue by virtue of requiring them to drive excessive hours and 

Basic Energy believed that [these] injury-producing events were substantially 

certain to result therefrom, especially when traversing poorly-maintained dirt roads 

such as the roadway at issue.” Regarding the post-rollover incidents at the hospital, 

Appellants alleged that Basic Energy, through its agent (Garcia), pressured hospital 

staff to withhold medical care from Pedro and that “with respect to said withholding 

and premature release, Basic Energy desired at all relevant times to cause the 

consequences (including the injuries to Pedro and Angie . . . ), or alternatively, Basic 

Energy believed at all relevant times that said consequences are [sic] substantially 

certain to result from said withholding and premature release.”

Because Appellants’ operative pleading alleged that Appellee believed that its

conduct was substantially certain to result in Pedro’s injuries and Angelina’s loss of 

consortium, we find that Appellants’ pleaded claims fall within the purview of the 

intentional-injury exception to the Act ’s exclusive-remedy provision. Therefore, 

Appellants’ factual allegations affirmatively demonstrate that the trial court has

subject-matter jurisdiction over these claims.
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B. Failure to Exhaust

Appellee also asserts that the Act deprives the trial court of subject-matter 

jurisdiction over Appellants’ pleaded claim with respect to the post-rollover events 

that occurred at the hospital in Odessa. Specifically, Appellee characterizes this 

pleaded claim as a dispute over medical benefits and argues that Appellants’ postrollover claims are barred by the Act because Appellants failed to comply with the 

Labor Code’s medical dispute resolution procedures and exhaust their administrative 

remedies. See LAB. § 413.031(k)–(k-1) (West Supp. 2020). Appellee’s reliance on 

this statute is misplaced.

The Labor Code provision advanced by Appellee is only applicable to medical 

benefit disputes and medical fee disputes. See id. In this case, Appellants have 

alleged neither. Therefore, the Labor Code’s medical dispute resolution procedures 

and exhaustion requirements would not be triggered.

Instead, Appellants alleged that Garcia’s undue influence, and the pressure he 

exerted on hospital personnel to withhold medical care for Pedro, ultimately resulted 

in further injury to Pedro. Appellants further alleged that Garcia’s post-rollover 

conduct was “not job-related and [was] separate from the event for which a 

workers[’] compensation claim was filed and the[se] [post-rollover] acts produced 

an independent injury separate from the injuries for which any workers[’] 

compensation claim was filed.” Appellants pleaded an intentional-injury claim, 

alleging that Garcia’s post-rollover affirmative conduct resulted in an independent 

injury to Pedro. Therefore, Appellants’factual allegations affirmatively demonstrate 

that the trial court has subject-matter jurisdiction over this claim.

C. Election of Remedies 

Finally, although the Act’s exclusive-remedy provision does not exempt

intentional-injury claims, the Act also does not expressly exclude workers’ 

compensation coverage for injuries that result from an employer’s intentional tort. 
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Medina v. Herrera, 927 S.W.2d 597, 600 (Tex. 1996). In fact, an injured employee’s 

receipt of workers’ compensation benefits and his pursuit of common law damages 

from his employer for the same intentional injury are mutually exclusive remedies. 

Id. Here, Appellee argues that Pedro’s receipt of workers’ compensation benefits 

divests the trial court of subject-matter jurisdiction over Appellants’ present claims. 

Appellee submits that Appellants’ intentional tort claims are barred as a matter of 

law because Pedro elected to file for and receive workers’ compensation benefits; 

therefore, Pedro’s “election” deprives the trial court of subject-matter jurisdiction

over Appellants’ claims. We disagree.

“The doctrine of ‘election of remedies’ is an affirmative defense that, under 

certain circumstances, bars a person from pursuing two inconsistent remedies.” Id.

(citing Bocanegra v. Aetna Life Ins. Co., 605 S.W.2d 848, 850–52 (Tex. 1980)). 

However, whether Appellee can establish this affirmative defense to Appellants’ 

claims does not bear on the trial court ’s subject-matter jurisdiction over the case.2F

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We additionally note that, under Reed Tool, an injured employee’s acceptance of 

workers’ compensation benefits does not bar an employee-spouse’s derivative claim

against the employer for intentional impairment of consortium because the 

employee-spouse’s own claim for intentional injury is not excluded by the Act. Reed 

Tool Co. v. Copelin, 610 S.W.2d 736, 740 (Tex. 1980) (holding that wife’s derivative 

claim of negligent impairment of consortium was barred by husband’s workers’ 

compensation agreement but that her action for intentional impairment of 

consortium was not); see also Reed Tool, 689 S.W.2d at 407–08 (holding that 

summary judgment in wife’s action for intentional impairment of consortium was 

proper because wife could not establish employer’s requisite intent to injure).

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In their briefs, the parties argue whether Appellee has established the elements of its election-ofremedies defense. Because the only issue before us is whether the trial court has subject-matter jurisdiction 

over the case, our review on appeal does not consider that merits determination. 
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Here, because Appellants’ claims are not within the Texas Department of 

Insurance’s exclusive jurisdiction and because Appellee’s election of remedies 

defense is not an impediment to the trial court’s exercise of subject-matter 

jurisdiction over the case, we hold that the trial court ’s determination that it lacked 

subject-matter jurisdiction over Appellants’ claims and its order granting Appellee’s 

plea were erroneous. Accordingly, we sustain Appellants’ sole issue on appeal.

IV. This Court ’s Ruling

Appellants pleaded sufficient facts to affirmatively show that the trial court 

has subject-matter jurisdiction over their asserted claims. Therefore, we reverse the 

order of the trial court and remand the cause to the trial court for further proceedings.

W. STACY TROTTER

JUSTICE

April 8, 2021

Panel consists of: Bailey, C.J.,

Trotter, J., and Williams, J.