Christopher Castleberry v. Ace American Insurance/ESIS ( 2011 )

In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-11-00016-CV
______________________________
CHRISTOPHER CASTLEBERRY, Appellant
V.
ACE AMERICAN INSURANCE/ESIS, Appellee
On Appeal from the 276th Judicial District Court
Morris County, Texas
Trial Court No. 24,566
Before Morriss, C.J., Carter and Moseley, JJ.
Memorandum Opinion by Justice Carter
MEMORANDUM OPINION
I. Background
Pro se appellant, Christopher Castleberry, was employed by U.S. Steel Tubular Products,
Inc., as a straightener. Castleberry maintains he sustained a hearing loss as a result of excessive
noise levels at work, for which he sought to recover workers’ compensation benefits. The
request for benefits was denied by the hearing officer. When he was again denied relief from the
Texas Department of Insurance Division of Workers’ Compensation appeals panel, Castleberry
filed his original petition seeking judicial review in the District Court of Morris County. Ace
American Insurance/ESIS (Ace) filed a plea to the jurisdiction, alleging Castleberry failed to
timely file his petition, and therefore the district court lacked jurisdiction to hear the cause. The
district court granted the plea to the jurisdiction and dismissed Castleberry’s petition with
prejudice. Castleberry appeals the order of dismissal, asking this Court to “overrule the time limit
that was originally given.” We affirm the judgment of the trial court.
II. Jurisdiction
The Texas Workers’ Compensation Act requires that a party appealing a decision of the
Commission must file suit by the forty-fifth day after the date on which the decision of the appeals
panel was mailed to that party. TEX. LAB. CODE ANN. § 410.252(a) (West Supp. 2010).1 Here,
1
The statute provides:
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the decision of the appeals panel was filed on May 24, 2010. Castleberry was therefore required
to file suit not later than forty-five days from May 29, 2010, the date the decision was mailed to
him. 2 Castleberry’s original petition was filed on November 25, 2010, well beyond the
forty-five-day deadline. Ace contends that the district court was without jurisdiction over
Castleberry’s lawsuit due to the untimely filing of the original petition. We agree.
The forty-five-day time period in which to file a petition for judicial review is mandatory
and jurisdictional. Fire & Cas. Ins. Co. of Conn. v. Miranda, 293 S.W.3d 620, 624 (Tex.
App.—San Antonio 2009, no pet.); LeBlanc v. Everest Nat’l Ins. Co., 98 S.W.3d 786, 787 (Tex.
App.—Corpus Christi 2003, no pet.); Johnson v. United Parcel Serv., 36 S.W.3d 918, 921 (Tex.
App.—Dallas 2001, pet. denied); Morales v. Employers Cas. Co., 897 S.W.2d 866, 868 (Tex.
App.—San Antonio 1995, writ denied) (op. on reh’g) (finding no reason to distinguish statutory
twenty-day filing requirement under former Article 8307, Section 5 that was mandatory and
jurisdictional and current forty-day requirement under Section 410.252(a)) (decisions under prior
law).3 Indeed, LeBlanc determined that there was no caselaw holding that Section 410.252(a) of
A party may seek judicial review by filing suit not later than the 45th day after the date on which the
division mailed the party the decision of the appeals panel. For purposes of this section, the
mailing date is considered to be the fifth day after the date the decision of the appeals panel was filed
with the division.
TEX. LAB. CODE ANN. § 410.252(a).
2
Castleberry’s petition was due to be filed on or before July 13, 2010.
3
Section 410.252(a) was amended to expand the time period for filing a petition for judicial review from forty days to
forty-five days, effective September 1, 2009. TEX. LAB. CODE ANN. § 410.252(a).
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the Texas Labor Code is anything but jurisdictional. LeBlanc, 98 S.W.3d at 787.
Castleberry’s failure to file his petition with the district court within forty-five days of the
date on which the decision was mailed to him deprived the trial court of jurisdiction to act in the
present case. This Court, while sympathetic to Castleberry’s request to “overrule the time limit
that was originally given,” is without authority to do so. See Pub. Util. Comm’n v. Cofer, 754
S.W.2d 121, 124 (Tex. 1988) (court is not free to rewrite statute to reach more desirable result).
III. Conclusion
We affirm the judgment of the trial court.
Jack Carter
Justice
Date Submitted: August 3, 2011
Date Decided: August 4, 2011
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