Rosendo Morales v. Texas Department of Insurance-Division of Workers' Compensation, and Commissioner Ryan Brannan, in His Official Capacity ( 2015 )


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  •                                                                                          ACCEPTED
    03-14-00808-CV
    6243481
    THIRD COURT OF APPEALS
    AUSTIN, TEXAS
    7/27/2015 5:28:11 PM
    JEFFREY D. KYLE
    CLERK
    NO. 03-14-00808-CV
    IN THE THIRD COURT OF APPEALS            FILED IN
    3rd COURT OF APPEALS
    AUSTIN, TEXAS                AUSTIN, TEXAS
    _______________________________________
    7/27/2015 5:28:11 PM
    JEFFREY D. KYLE
    ROSENDO MORALES,                      Clerk
    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
    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 sub-
    issues. 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 legislatively-
    mandated 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 party-
    defendants. 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 ARGUMENT 4
    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 appeals-
    panel 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 authority 5; 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   Statutory-
    Interpretation 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 appeals-
    panel 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.).
    Page 1
    --- S.W.3d ----, 
    2015 WL 3637823
    (Tex.App.-Corpus Christi)
    (Cite as: 
    2015 WL 3637823
    (Tex.App.-Corpus Christi))
    peal challenging a plea to the jurisdiction granted in
    Only the Westlaw citation is currently available.            favor of appellees, the Division of Workers' Com-
    pensation of the Texas Department of Insurance
    NOTICE: THIS OPINION HAS NOT BEEN RE-                        (“the Division”) and the Commissioner of Workers'
    LEASED FOR PUBLICATION IN THE PER-                           Compensation David Mattax, in his official capa-
    MANENT LAW REPORTS. UNTIL RELEASED,                                FN2
    city.     We affirm the trial court's order granting
    IT IS SUBJECT TO REVISION OR WITHDRAW-                       the plea and dismissing for lack of jurisdiction.
    AL.
    FN2. At the time appellants perfected this
    appeal the Commissioner of Workers'
    Court of Appeals of Texas,
    Compensation was the Hon. Rod Border-
    Corpus Christi-Edinburg.
    lon. Pursuant to Rule 7.2, we automatically
    Jamie Harvel and The Austin Police Association,
    substitute the name of his successor in that
    Appellants,
    office, the Hon. Ryan Brannan. See TEX.
    v.
    R. APP. P. 7.2.
    Texas Department of Insurance–Division of Work-
    ers' Compensation, and Commissioner Rod Border-                                                 FN3
    I. BACKGROUND
    lon, in his Official Capacity, Appellees.
    FN3. This case is before this Court on
    NUMBER 13–14–00095–CV                                       transfer from the Third Court of Appeals in
    Delivered and filed June 11, 2015                            Austin pursuant to a docket-equalization
    order issued by the Supreme Court of
    On appeal from the 53rd District Court of Trav-
    Texas. See TEX. GOV'T CODE ANN. §
    is County, Texas.
    73.001 (West, Westlaw through 2013 3d
    Bradley Dean McClellan, Richard Pena, for Appel-
    C.S.).
    lant.
    The Austin Police Department normally as-
    Karen L. Watkins, for Appellee.
    signed Officer Harvel to work at the police station
    located in downtown Austin. In May of 2012, he
    Before Justices Benavides, Perkes and Longoria               was temporarily reassigned to a training camp loc-
    ated in a different part of Austin to serve as a fire-
    FN1                            arms instructor. On the morning of May 4, 2012,
    OPINION
    Officer Harvel was traveling from his home to that
    FN1. On motion by appellants, the Court,             training camp on his personal motorcycle. A car at-
    sitting en banc, withdraws its memor-                tempting to turn left failed to yield the right of way
    andum opinion and judgment issued on                 and collided with Officer Harvel, who sustained
    May 21, 2015, designates that memor-                 “significant injuries” as a result.
    andum opinion as an “opinion,” and reis-
    The City of Austin, which self-insures, denied
    sues said opinion without further change.
    Officer Harvel's claim for workers's compensation
    See TEX. R. APP. P. 47.6.
    benefits. Officer Harvel challenged that decision
    Opinion by Justice Longoria                                  and received a contested case hearing before a Di-
    *1 Officer Jamie Harvel and the Austin Police            vision hearing officer. See TEX. LAB. CODE
    Association, appellants, bring this interlocutory ap-        ANN. § 410.151 (West, Westlaw through 2013 3d
    © 2015 Thomson Reuters. No Claim to Orig. US Gov. Works.
    Page 2
    --- S.W.3d ----, 
    2015 WL 3637823
    (Tex.App.-Corpus Christi)
    (Cite as: 
    2015 WL 3637823
    (Tex.App.-Corpus Christi))
    C.S.). The hearing officer issued an order that              tion of the employer from home to a specially as-
    denied coverage and made findings of fact and con-           signed work location is in the course and scope of
    clusions of law that Officer Harvel was not acting           his employment while traveling.”
    within the course and scope of his employment at
    the time of his injury. Officer Harvel challenged the                 FN4. Article 2.13 of the Texas Code of
    order, but it became final after the Division appeals                 Criminal Procedure provides that it is “the
    panel did not enter a decision. See 
    id. § 410.204(c)
                     duty of every peace officer to preserve the
    (West, Westlaw through 2013 3d C.S.) (providing                       peace within the officer's jurisdiction” and
    that the order of a hearing officer in a contested                    that all peace officers shall “in every case
    case becomes final if the appeals panel fails to rule                 authorized by the provisions of this Code,
    on the claimant's challenge to the order).                            interfere without warrant to prevent or sup-
    press crime.” TEX. CODE CRIM. PROC.
    Officer Harvel filed suit for judicial review of                 ANN. art. 2.13 (West, Westlaw through
    the Division's final order in Travis County district                  2013 3d C.S.).
    court. See 
    id. § 410.251
    (authorizing a suit for judi-
    cial review of a final order of the Division in a con-            *2 Appellees filed a plea to the jurisdiction as-
    tested case hearing) (West, Westlaw through 2013             serting that they are not proper parties to Officer
    3d C.S.). Officer Harvel's suit named appellees and          Harvel's suit for judicial review and that sovereign
    the City of Austin as defendants. Officer Harvel re-         immunity bars Officer Harvel's requests for declar-
    quested that the trial court overturn the Division's         atory relief. The Austin Police Association (“the
    FN5
    final order and determine that he was in the course          Association”)       filed a plea in intervention and a
    and scope of his employment when another person              request for declaratory relief seeking the same de-
    illegally turned in front of him and caused his injur-       clarations as Officer Harvel. After the Association
    ies. He challenged all adverse “findings, conclu-            intervened, appellees filed a second plea to the jur-
    sions and decisions” of the Division and requested           isdiction incorporating the arguments in their first
    the trial court to determine that he is entitled to          plea and further asserting that the Association had
    workers's compensation benefits because his injur-           no standing to seek a declaratory judgment.
    ies were work-related. In the same pleading, Officer
    FN5. The Association described itself in its
    Harvel sought two declarations under the Uniform
    plea in intervention as “being composed of
    Declaratory Judgment Act (UDJA). See generally
    over 1,600 police officers” employed by
    TEX. CIV. PRAC. & REM. CODE ANN. § 37.001
    the City of Austin, including Officer
    –.011 (West, Westlaw through 2013 3d C.S.)
    Harvel.
    (providing the procedures for seeking a declaratory
    judgment). Officer Harvel requested a declaration                 The trial court granted appellees's plea to the
    that under the Texas Workers' Compensation Act               jurisdiction and dismissed appellants's claims
    and the “Texas Peace Officer Statutes” a peace of-                                              FN6
    against appellees in both suits.         Appellants
    ficer “is immediately in the course and scope of             timely brought this interlocutory appeal. See TEX.
    their employment upon observing an illegal act es-           CIV. PRAC. & REMM. CODE ANN. §
    pecially within their jurisdiction.” See TEX. CODE           51.014(a)(8) (West, Westlaw through 2013 3d C.S.)
    CRIM. PROC. ANN. art. 2.12 (West, Westlaw                    (permitting an interlocutory appeal of an order
    FN4
    through 2013 3d C.S.).        Officer Harvel sought a        granting or denying a plea to the jurisdiction by a
    second declaration that employer-directed travel for         government unit).
    purposes of the Texas Workers' Compensation Act
    “need not be just from one work place to another                      FN6. The City of Austin did not file a plea
    location but that an employee traveling at the direc-                 to the jurisdiction and is not a party to this
    © 2015 Thomson Reuters. No Claim to Orig. US Gov. Works.
    Page 3
    --- S.W.3d ----, 
    2015 WL 3637823
    (Tex.App.-Corpus Christi)
    (Cite as: 
    2015 WL 3637823
    (Tex.App.-Corpus Christi))
    appeal.                                             ute or other law.” Tex. Dep't of Transp. v. Sefzik,
    
    355 S.W.3d 618
    , 621 (Tex.2011) (per curiam )
    II. STANDARD OF REVIEW & APPLICABLE                         (citing 
    Heinrich, 284 S.W.3d at 372
    –73); accord
    LAW                                  Abbott v. G.G.E, No. 03–11 –00338–CV, –––
    A plea to the jurisdiction challenges a trial           S.W.3d ––––, 
    2015 WL 1968262
    , at *13 n. 14
    court's subject matter jurisdiction over a case. City        (Tex.App.—Austin Apr. 30, 2015, no. pet. h.). Re-
    of Dallas v. Carbajal, 
    324 S.W.3d 537
    , 538                   lated to this rule is the ultra vires exception, which
    (Tex.2010) (per curiam ). Whether subject matter             permits private parties to bring claims against state
    jurisdiction exists is a question of law that we re-         officials for nondiscretionary acts unauthorized by
    view de novo. Id.                                            law. 
    Sefzik, 355 S.W.3d at 621
    . Such lawsuits are
    not “against the State” and therefore not barred by
    The burden is on the plaintiff to demonstrate
    sovereign immunity. Id.; see Heinrich, 284 S.W.3d
    the trial court's jurisdiction. Heckman v. Williamson
    at 373.
    County, 
    369 S.W.3d 137
    , 150 (Tex.2012). When a
    plea to the jurisdiction challenges the pleadings, our         III. OFFICER HARVEL'S SUIT FOR JUDI-
    task is to determine if the pleader has alleged facts                           CIAL REVIEW
    that affirmatively demonstrate the trial court's juris-           *3 Officer Harvel's petition sought both judi-
    diction. Tex. Dep't of Parks & Wildlife v. Miranda,          cial review of the Division's final order denying
    
    133 S.W.3d 217
    , 226 (Tex.2004). We begin our                 him workers's compensation benefits and a declar-
    analysis of a plea to the jurisdiction with the live         atory judgment. Judicial review of a final agency
    pleadings. 
    Heckman, 369 S.W.3d at 150
    . We may                order and a UDJA action are separate proceedings
    also consider evidence submitted to negate the ex-           authorized and governed by different statutes. See
    istence of jurisdiction and must do so when the              TEX. LAB. CODE ANN. § 410.251 (authorizing
    evidence necessarily resolves the jurisdictional is-         judicial review of a final order of the Division once
    sue. 
    Id. We construe
    the pleadings liberally, accept-        the claimant has exhausted all administrative rem-
    ing all factual allegations as true, and look to the in-     edies); TEX. CIV. PRAC. & REM. CODE ANN. §
    tent of the pleader. 
    Id. We must
    grant the plea if the       37.003 (authorizing a suit for a declaratory judg-
    pleadings affirmatively negate the existence of jur-         ment). Appellees filed a plea to the jurisdiction
    isdiction. 
    Miranda, 133 S.W.3d at 227
    . If the plead-         challenging the trial court's jurisdiction over them
    ings do not contain sufficient facts to demonstrate          in both suits, but appellants did not address why ap-
    jurisdiction but also do not affirmatively negate it,        pellees are proper parties to Officer Harvel's suit
    the issue is one of pleading sufficiency. 
    Id. for judicial
    review as distinguished from appel-
    lants's UDJA action in their briefs to this Court.
    Sovereign immunity generally deprives the trial
    The appellant's brief must contain a clear and con-
    court of jurisdiction over a lawsuit in which the
    cise argument for the party's contest accompanied
    party has sued the State or a state agency unless the
    by appropriate citations to authorities and to the re-
    Legislature has waived immunity. Tex. Parks &
    cord. TEX. R. APP. P. 38.1(i); see Strange v. Cont'l
    Wildlife Dep't. v. Sawyer Trust, 
    354 S.W.3d 384
    ,
    Cas. Co., 
    126 S.W.3d 676
    , 678 (Tex.App.—Dallas
    388 (Tex.2011). The UDJA is not a general waiver
    2004, pet. denied) (“An issue on appeal unsuppor-
    of sovereign immunity but does provide a narrow
    ted by argument or citation to any legal authority
    waiver of immunity for claims challenging the
    presents nothing for the court to review.”). To the
    validity of ordinances or statutes. Id.; City of El
    degree that Officer Harvel raises an issue that ap-
    Paso v. Heinrich, 
    284 S.W.3d 366
    , 373 n. 6
    pellees are proper parties to his suit for judicial re-
    (Tex.2009). However, the UDJA does “not waive
    view, we overrule it as inadequately briefed. See
    the state's sovereign immunity when the plaintiff
    TEX. R. APP. P. 38.1(i); Strange, 126 S.W.3d at
    seeks a declaration of his or her rights under a stat-
    © 2015 Thomson Reuters. No Claim to Orig. US Gov. Works.
    Page 4
    --- S.W.3d ----, 
    2015 WL 3637823
    (Tex.App.-Corpus Christi)
    (Cite as: 
    2015 WL 3637823
    (Tex.App.-Corpus Christi))
    678.                                                         sought only a declaration of its rights and status un-
    der the Act. Id. (citing 
    Sefzik, 355 S.W.3d at 621
    ).
    IV. DECLARATORY RELIEF                             Appellants seek similar relief in the case at bar: a
    We next turn to appellants's argument that sov-          declaration of their rights under a statute. Without a
    ereign immunity does not bar their UDJA action               legislative waiver, sovereign immunity bars appel-
    against the Division and the Commissioner.                                 FN7
    lants's suit.      Appellants have not directed us to
    any legislative waiver of immunity for their suit,
    Appellants sought two declarations under the
    and we have found none. We conclude that the trial
    UDJA: (1) that a peace officer who witnesses an il-
    court did not err in granting appellees's plea to the
    legal act is immediately within the course and                              FN8
    jurisdiction.       See 
    Sefzik, 355 S.W.3d at 621
    ;
    scope of his or her employment; and (2) that em-
    Trinity Settlement 
    Servs., 417 S.W.3d at 503
    ; see
    ployer-directed travel includes an “employee travel-
    also City of McKinney v. Hank's Rest. Group, L.P.,
    ing at the direction of the employer from home to a
    
    412 S.W.3d 102
    , 113 (Tex.App.—Dallas 2013, no
    specially assigned work location.” Sovereign im-
    pet.) (holding that the UDJA did not waive im-
    munity bars both claims because appellants seek a
    munity for the appellee's claims “seeking interpret-
    declaration of their rights under a statute but do not
    ations of City ordinances, declarations of HRG's
    challenge the validity of any statute or ordinance.
    statutory rights and declarations that City officials
    See 
    Sefzik, 355 S.W.3d at 621
    . Appellants assert
    have violated or are violating the law”).
    that the Texas Supreme Court permitted a similar
    UDJA action to continue in Texas Lottery Commis-                      FN7. We note that unlike Sefzik, appellants
    sion v. First State Bank of DeQueen, but that case is                 brought suit against a state official, the
    distinguishable and does not support appellants's ar-                 Commissioner of Workers' Compensation.
    gument. 
    325 S.W.3d 628
    , 633–34 (Tex.2010).                            However, appellants do not allege that the
    Texas Lottery Commission involved whether provi-                      Commissioner acted ultra vires or request
    sions of the Uniform Commercial Code invalidated                      that we remand to afford appellants an op-
    certain sections of the Texas Lottery Act. 
    Id. at 634.
                   portunity to plead an ultra vires suit. See
    Thus, Texas Lottery Commission fits into the nar-                     Tex. Dep't. of Transp. v. Sefzik, 355
    row UDJA waiver of sovereign immunity for suits                       S.W.3d 618, 623 (Tex.2011) (per curiam)
    challenging the validity of statutes which the Texas                  (affirming a plea to the jurisdiction but re-
    Supreme Court recognized in Heinrich. See 
    id. at manding
    to permit the plaintiff to plead an
    635 (“Because the claim at issue here is not one in-                  ultra vires suit).
    volving a government officer's action or inaction,
    but is a challenge to a statute, this is not an ultra                 FN8. Appellants assert numerous times in
    vires claim to which a government officer should                      their appellate briefs that a UDJA action in
    have been made a party”); see also Heinrich, 284                      which the Commissioner and the Division
    S.W.3d at 372–73. Appellants's UDJA action is                         are parties is the only way to bind the
    more akin to the one the Austin Court of Appeals                      Commissioner and the Division to apply
    addressed in Trinity Settlement Services, LLC v.                      the declarations appellants seek in sub-
    Texas State Securities Board, where Trinity sought                    sequent contested case proceedings. Ap-
    a declaratory judgment of its rights and status under                 pellants do not explain why the Division
    the Texas Securities Act. 
    417 S.W.3d 494
    , 503                         and the Commissioner would not be bound
    (Tex.App.—Austin 2013, pet. denied). The court of                     to apply a district court decision agreeing
    appeals held that sovereign immunity barred Trin-                     with Officer Harvel that the Texas Code of
    ity's claims for declaratory judgment against the                     Criminal Procedure places police officers
    Texas State Securities Board because Trinity                          in the course and scope of their employ-
    © 2015 Thomson Reuters. No Claim to Orig. US Gov. Works.
    Page 5
    --- S.W.3d ----, 
    2015 WL 3637823
    (Tex.App.-Corpus Christi)
    (Cite as: 
    2015 WL 3637823
    (Tex.App.-Corpus Christi))
    ment as soon as they witness a violation of          versy between the Association and appellees. See
    the law. In any event, we have concluded             Brooks v. Northglen Ass'n, 
    141 S.W.3d 158
    ,
    that the trial court correctly concluded that        163–64 (Tex.2004). The trial court has jurisdiction
    it lacked jurisdiction over this appeal. A           to address a suit for declaratory relief only if a jus-
    court without jurisdiction has no choice             ticiable controversy exists regarding the rights and
    but to dismiss the case. See State v. Mor-           status of the parties actually before the court and
    ales, 
    869 S.W.2d 941
    , 949 (Tex.1994).                the declaration sought will actually resolve the con-
    troversy. 
    Id. A justiciable
    controversy involves a
    *4 When we hold that the trial court is without         real and substantial conflict of tangible interests
    subject-matter jurisdiction, we allow a plaintiff to         and not merely a theoretical or hypothetical dispute.
    replead if the defect can be cured. See Miranda,             Bonham State Bank v. Beadle, 
    907 S.W.2d 465
    , 
    467 133 S.W.3d at 226
    –227. We will not afford Officer            (Tex.1995); see Trinity Settlement Servs., 417
    Harvel an opportunity to replead because the relief          S.W.3d at 505 (observing that a justiciable contro-
    requested under the UDJA Act mirrors the relief he           versy does not exist if a case requires the trial court
    requested in the suit for judicial review. When a            to “pass upon hypothetical or contingent situations,
    plaintiff “has invoked a statutory means of attack-          or to determine questions not then essential to the
    ing an agency order, a trial court lacks jurisdiction        decision of an actual controversy, although such ac-
    over an additional claim under the UDJA that                 tions may in the future require adjudication”). The
    would merely determine the same issues and                   Association seeks a declaration that would apply to
    provide what is substantively the same relief that           all of its police officers, but none of those officers
    would be provided by the other statutory remedy.”            except for Officer Harvel are before the Court. At
    Tex. Dep't of State Health Servs. v. Balquinta, 429          best, the Association has identified hypothetical
    S.W.3d 726, 746 (Tex.App.—Austin 2014, pet.                  disputes which are likely to occur between the Di-
    dism'd); SWEPI LP v. R.R. Com'n of Tex., 314                 vision and its member officers in the future if one
    S.W.3d 253, 268 (Tex.App.—Austin 2010, pet.                  of the officers is injured. While it is certainly pos-
    denied). Both Officer Harvel's suit for judicial re-         sible that one of the Association's member officers
    view and his UDJA action seek rulings that (1) a             could be injured when traveling to work in a man-
    peace officer is in the course and scope of employ-          ner similar to Officer Harvel's experience, such an
    ment as soon as the officer witnesses an illegal act         injury is merely hypothetical at this point. See Bon-
    and (2) that employer-directed travel for purposes           ham State 
    Bank, 907 S.W.2d at 467
    . We conclude
    of the Texas Workers' Compensation Act includes              that the pleadings affirmatively negate the existence
    travel from the employee's home to a specially-as-           of jurisdiction because the Association has not
    signed work location. If Officer Harvel was suc-             shown that any possible injury is “imminent, direct,
    cessful on either suit he would receive substant-            and immediate, and not merely remote, conjectural,
    ively the same relief: reversal of the final order           or hypothetical.” See Rea v. State, 
    297 S.W.3d 379
    ,
    denying him workers's compensation benefits. The             383 (Tex.App.—Austin 2009, no pet.). We will not
    pleadings have affirmatively negated jurisdiction            afford the Association an opportunity to replead.
    because the declarations Officer Harvel seeks under
    the UDJA action are duplicative of his suit for judi-                          V. CONCLUSION
    cial review. See 
    Balquinta, 429 S.W.3d at 746
    ;                   We affirm the trial court's order granting the
    
    SWEPI, 314 S.W.3d at 268
    .                                    plea to the jurisdiction.
    We will not afford the Association an oppor-            Tex.App.-Corpus Christi, 2015
    tunity to replead because the pleadings conclusively         Harvel v. Texas Department of Insurance-Division
    demonstrate the absence of a justiciable contro-             of Workers' Compensation
    © 2015 Thomson Reuters. No Claim to Orig. US Gov. Works.
    Page 6
    --- S.W.3d ----, 
    2015 WL 3637823
    (Tex.App.-Corpus Christi)
    (Cite as: 
    2015 WL 3637823
    (Tex.App.-Corpus Christi))
    ---   S.W.3d    ----,    
    2015 WL 3637823
    (Tex.App.-Corpus Christi)
    END OF DOCUMENT
    © 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).
    ACCEPTED
    05-15-00195-CV
    FIFTH COURT OF APPEALS
    DALLAS, TEXAS
    5/26/2015 11:40:30 PM
    LISA MATZ
    CLERK
    No. 05-15-00195-CV
    FIFTH COURT OF APPEALS                    FILED IN
    5th COURT OF APPEALS
    DALLAS, TEXAS                      DALLAS, TEXAS
    5/26/2015 11:40:30 PM
    LISA MATZ
    Clerk
    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
    IDENTITY OF PARTIES & COUNSEL
    PLAINTIFF/APPELLANT:                           Attorneys for DWC and Commissioner:
    Dr. Eric Vandwerff, D.C.                       DOUGLAS D. GEYSER,
    Care of Attorneys                              Assistant Solicitor General
    Law Offices of Richard Pena, P.C.              OFFICE OF THE ATTORNEY GENERAL
    1701 Directors Blvd.                           P.O. Box 12548 (MC 059)
    Austin, Texas 78744                            Austin, Texas 78711-2548
    Tel.: (512) 936-2540
    TRIAL AND APPELLATE ATTORNEY FOR               Fax:           (512)          474-2697
    PLAINTIFF & INTERVENOR:                        douglas.geyser@texasattorneygeneral.
    Bradley Dean McClellan                         gov
    State Bar No. 13395980                         Adrienne Butcher, Assistant Attorney
    Richard Pena                                   General
    Law Offices of Richard Pena, P.C               Administrative Law Division
    State Bar No. 00000073                         Office of the Attorney General of Texas
    1701 Directors Blvd. Suite 110                 P.O. Box 12548 (MC-018), Capital
    Austin, Texas 78744                            Station
    Brad.McClellan@yahoo.com                       Austin, Texas 78711-2548
    Fax 512.327.8354                               512-475-4208
    Telephone 512.327.6884                         512-320-0167 facsimile.
    Attorneys for DWC and Commissioner
    INTERVENOR DEFENDANT/APPELLEE:                 OTHER DEFENDANT:
    Texas Department of Insurance –                Travelers Indemnity Insurance Co. of
    Division of Workers' Compensation,             Connecticut, the Insurance Carrier
    DWC, a governmental unit organized             James M. Loughlin
    and existing under the law of the State        Stone Loughlin & Swanson, LLP
    of Texas, and Commissioner Ryan                P.O. Box 3011
    Brannan, in his official capacity              Austin, Texas 78755
    7551 Metro Center Drive, Suite 100            Facsimile: (512) 343-1385
    Austin, TX, 78744                              jloughlin@slsaustin.com
    Counsel for Defendant Travelers
    ii
    No. 05-15-00195-CV Dr. Vanderwerff Appellant’s Brief
    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
    iii
    No. 05-15-00195-CV Dr. Vanderwerff Appellant’s Brief
    ACCEPTED
    05-15-00195-CV
    FIFTH COURT OF APPEALS
    DALLAS, TEXAS
    5/26/2015 11:40:30 PM
    LISA MATZ
    CLERK
    No. 05-15-00195-CV
    FIFTH COURT OF APPEALS                    FILED IN
    5th COURT OF APPEALS
    DALLAS, TEXAS                      DALLAS, TEXAS
    5/26/2015 11:40:30 PM
    LISA MATZ
    Clerk
    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
    IDENTITY OF PARTIES & COUNSEL
    PLAINTIFF/APPELLANT:                           Attorneys for DWC and Commissioner:
    Dr. Eric Vandwerff, D.C.                       DOUGLAS D. GEYSER,
    Care of Attorneys                              Assistant Solicitor General
    Law Offices of Richard Pena, P.C.              OFFICE OF THE ATTORNEY GENERAL
    1701 Directors Blvd.                           P.O. Box 12548 (MC 059)
    Austin, Texas 78744                            Austin, Texas 78711-2548
    Tel.: (512) 936-2540
    TRIAL AND APPELLATE ATTORNEY FOR               Fax:           (512)          474-2697
    PLAINTIFF & INTERVENOR:                        douglas.geyser@texasattorneygeneral.
    Bradley Dean McClellan                         gov
    State Bar No. 13395980                         Adrienne Butcher, Assistant Attorney
    Richard Pena                                   General
    Law Offices of Richard Pena, P.C               Administrative Law Division
    State Bar No. 00000073                         Office of the Attorney General of Texas
    1701 Directors Blvd. Suite 110                 P.O. Box 12548 (MC-018), Capital
    Austin, Texas 78744                            Station
    Brad.McClellan@yahoo.com                       Austin, Texas 78711-2548
    Fax 512.327.8354                               512-475-4208
    Telephone 512.327.6884                         512-320-0167 facsimile.
    Attorneys for DWC and Commissioner
    INTERVENOR DEFENDANT/APPELLEE:                 OTHER DEFENDANT:
    Texas Department of Insurance –                Travelers Indemnity Insurance Co. of
    Division of Workers' Compensation,             Connecticut, the Insurance Carrier
    DWC, a governmental unit organized             James M. Loughlin
    and existing under the law of the State        Stone Loughlin & Swanson, LLP
    of Texas, and Commissioner Ryan                P.O. Box 3011
    Brannan, in his official capacity              Austin, Texas 78755
    7551 Metro Center Drive, Suite 100            Facsimile: (512) 343-1385
    Austin, TX, 78744                              jloughlin@slsaustin.com
    Counsel for Defendant Travelers
    ii
    No. 05-15-00195-CV Dr. Vanderwerff Appellant’s Brief
    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
    iii
    No. 05-15-00195-CV Dr. Vanderwerff Appellant’s Brief
    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
    iv
    No. 05-15-00195-CV Dr. Vanderwerff Appellant’s Brief
    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
    v
    No. 05-15-00195-CV Dr. Vanderwerff Appellant’s Brief
    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
    vi
    No. 05-15-00195-CV Dr. Vanderwerff Appellant’s Brief
    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
    vii
    No. 05-15-00195-CV Dr. Vanderwerff Appellant’s Brief
    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.
    viii
    No. 05-15-00195-CV Dr. Vanderwerff Appellant’s Brief
    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?
    ix
    No. 05-15-00195-CV Dr. Vanderwerff Appellant’s Brief
    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 5th 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
    1
    No. 05-15-00195-CV Dr. Vanderwerff Appellant’s Brief
    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,
    2
    No. 05-15-00195-CV Dr. Vanderwerff Appellant’s Brief
    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’
    4
    compensation health care network.             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
    3
    No. 05-15-00195-CV Dr. Vanderwerff Appellant’s Brief
    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
    4
    No. 05-15-00195-CV Dr. Vanderwerff Appellant’s Brief
    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
    5
    No. 05-15-00195-CV Dr. Vanderwerff Appellant’s Brief
    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
    6
    No. 05-15-00195-CV Dr. Vanderwerff Appellant’s Brief
    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
    7
    No. 05-15-00195-CV Dr. Vanderwerff Appellant’s Brief
    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
    8
    No. 05-15-00195-CV Dr. Vanderwerff Appellant’s Brief
    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 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
    No. 05-15-00195-CV Dr. Vanderwerff Appellant’s Brief
    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.
    10
    No. 05-15-00195-CV Dr. Vanderwerff Appellant’s Brief
    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
    11
    No. 05-15-00195-CV Dr. Vanderwerff Appellant’s Brief
    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;
    12
    No. 05-15-00195-CV Dr. Vanderwerff Appellant’s Brief
    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
    13
    No. 05-15-00195-CV Dr. Vanderwerff Appellant’s Brief
    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. Substantial-
    evidence 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).
    14
    No. 05-15-00195-CV Dr. Vanderwerff Appellant’s Brief
    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.
    15
    No. 05-15-00195-CV Dr. Vanderwerff Appellant’s Brief
    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.)
    16
    No. 05-15-00195-CV Dr. Vanderwerff Appellant’s Brief
    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
    17
    No. 05-15-00195-CV Dr. Vanderwerff Appellant’s Brief
    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. 18 No.
    05-15-00195-CV Dr. Vanderwerff Appellant’s Brief
    3rd 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
    19
    No. 05-15-00195-CV Dr. Vanderwerff Appellant’s Brief
    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.
    20
    No. 05-15-00195-CV Dr. Vanderwerff Appellant’s Brief
    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
    21
    No. 05-15-00195-CV Dr. Vanderwerff Appellant’s Brief
    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
    22
    No. 05-15-00195-CV Dr. Vanderwerff Appellant’s Brief
    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.
    23
    No. 05-15-00195-CV Dr. Vanderwerff Appellant’s Brief
    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.
    24
    No. 05-15-00195-CV Dr. Vanderwerff Appellant’s Brief
    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
    25
    No. 05-15-00195-CV Dr. Vanderwerff Appellant’s Brief
    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. IT-
    Davy, 
    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
    26
    No. 05-15-00195-CV Dr. Vanderwerff Appellant’s Brief
    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. IT-
    Davy, 
    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
    27
    No. 05-15-00195-CV Dr. Vanderwerff Appellant’s Brief
    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).
    28
    No. 05-15-00195-CV Dr. Vanderwerff Appellant’s Brief
    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 3
    72-
    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
    29
    No. 05-15-00195-CV Dr. Vanderwerff Appellant’s Brief
    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-a-
    vis 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
    30
    No. 05-15-00195-CV Dr. Vanderwerff Appellant’s Brief
    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
    31
    No. 05-15-00195-CV Dr. Vanderwerff Appellant’s Brief
    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
    32
    No. 05-15-00195-CV Dr. Vanderwerff Appellant’s Brief
    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.
    33
    No. 05-15-00195-CV Dr. Vanderwerff Appellant’s Brief
    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,
    34
    No. 05-15-00195-CV Dr. Vanderwerff Appellant’s Brief
    
    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)
    35
    No. 05-15-00195-CV Dr. Vanderwerff Appellant’s Brief
    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.
    36
    No. 05-15-00195-CV Dr. Vanderwerff Appellant’s Brief
    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.
    37
    No. 05-15-00195-CV Dr. Vanderwerff Appellant’s Brief
    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
    38
    No. 05-15-00195-CV Dr. Vanderwerff Appellant’s Brief
    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.
    39
    No. 05-15-00195-CV Dr. Vanderwerff Appellant’s Brief
    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
    40
    No. 05-15-00195-CV Dr. Vanderwerff Appellant’s Brief
    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            Via efiling/eservice
    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                                         Via efiling/eservice
    Stone Loughlin & Swanson, LLP
    P.O. Box 3011
    Austin, Texas 78755
    Facsimile: (512) 343-1385
    jloughlin@slsaustin.com
    Counsel for Defendant Travelers
    /s/ Brad McClellan
    Bradley Dean McClellan
    41
    No. 05-15-00195-CV Dr. Vanderwerff Appellant’s Brief