NUMBER 13-14-00095-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
JAMIE HARVEL AND THE AUSTIN Appellants,
POLICE ASSOCIATION,
v.
TEXAS DEPARTMENT OF INSURANCE-
DIVISION OF WORKERS’ COMPENSATION,
AND COMMISSIONER ROD BORDERLON,
IN HIS OFFICIAL CAPACITY, Appellees.
On appeal from the 53rd District Court
of Travis County, Texas.
MEMORANDUM OPINION
Before Justices Benavides, Perkes and Longoria
Memorandum Opinion by Justice Longoria
Officer Jamie Harvel and the Austin Police Association, appellants, bring this
interlocutory appeal challenging a plea to the jurisdiction granted in favor of appellees,
the Division of Workers’ Compensation of the Texas Department of Insurance (“the
Division”) and the Commissioner of Workers’ Compensation David Mattax, in his official
capacity.1 We affirm the trial court’s order granting the plea and dismissing for lack of
jurisdiction.
I. BACKGROUND2
The Austin Police Department normally assigned Officer Harvel to work at the
police station located in downtown Austin. In May of 2012, he was temporarily reassigned
to a training camp located in a different part of Austin to serve as a firearms instructor.
On the morning of May 4, 2012, Officer Harvel was traveling from his home to that training
camp on his personal motorcycle. A car attempting to turn left failed to yield the right of
way and collided with Officer Harvel, who sustained “significant injuries” as a result.
The City of Austin, which self-insures, denied Officer Harvel’s claim for workers’s
compensation benefits. Officer Harvel challenged that decision and received a contested
case hearing before a Division hearing officer. See TEX. LAB. CODE ANN. § 410.151 (West,
Westlaw through 2013 3d C.S.). The hearing officer issued an order that denied coverage
and made findings of fact and conclusions of law that Officer Harvel was not acting within
the course and scope of his employment at the time of his injury. Officer Harvel
challenged the order, but it became final after the Division appeals panel did not enter a
decision. See id. § 410.204(c) (West, Westlaw through 2013 3d C.S.) (providing that the
order of a hearing officer in a contested case becomes final if the appeals panel fails to
1 At the time appellants perfected this appeal the Commissioner of Workers’ Compensation was
the Hon. Rod Borderlon. Pursuant to Rule 7.2, we automatically substitute the name of his successor in
that office, the Hon. Ryan Brannan. See TEX. R. APP. P. 7.2.
2This case is before this Court on transfer from the Third Court of Appeals in Austin pursuant to a
docket-equalization order issued by the Supreme Court of Texas. See TEX. GOV’T CODE ANN. § 73.001
(West, Westlaw through 2013 3d C.S.).
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rule on the claimant’s challenge to the order).
Officer Harvel filed suit for judicial review of the Division’s final order in Travis
County district court. See id. § 410.251 (authorizing a suit for judicial review of a final
order of the Division in a contested case hearing) (West, Westlaw through 2013 3d C.S.).
Officer Harvel’s suit named appellees and the City of Austin as defendants. Officer Harvel
requested that the trial court overturn the Division’s final order and determine that he was
in the course and scope of his employment when another person illegally turned in front
of him and caused his injuries. He challenged all adverse “findings, conclusions and
decisions” of the Division and requested the trial court to determine that he is entitled to
workers’s compensation benefits because his injuries were work-related. In the same
pleading, Officer Harvel sought two declarations under the Uniform Declaratory Judgment
Act (UDJA). See generally TEX. CIV. PRAC. & REM. CODE ANN. § 37.001–.011 (West,
Westlaw through 2013 3d C.S.) (providing the procedures for seeking a declaratory
judgment). Officer Harvel requested a declaration that under the Texas Workers’
Compensation Act and the “Texas Peace Officer Statutes” a peace officer “is immediately
in the course and scope of their employment upon observing an illegal act especially
within their jurisdiction.” See TEX. CODE CRIM. PROC. ANN. art. 2.12 (West, Westlaw
through 2013 3d C.S.).3 Officer Harvel sought a second declaration that employer-
directed travel for purposes of the Texas Workers’ Compensation Act “need not be just
from one work place to another location but that an employee traveling at the direction of
the employer from home to a specially assigned work location is in the course and scope
3 Article 2.13 of the Texas Code of Criminal Procedure provides that it is “the duty of every peace
officer to preserve the peace within the officer's jurisdiction” and that all peace officers shall “in every case
authorized by the provisions of this Code, interfere without warrant to prevent or suppress crime.” TEX.
CODE CRIM. PROC. ANN. art. 2.13 (West, Westlaw through 2013 3d C.S.).
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of his employment while traveling.”
Appellees filed a plea to the jurisdiction asserting that they are not proper parties
to Officer Harvel’s suit for judicial review and that sovereign immunity bars Officer Harvel’s
requests for declaratory relief. The Austin Police Association (“the Association”)4 filed a
plea in intervention and a request for declaratory relief seeking the same declarations as
Officer Harvel. After the Association intervened, appellees filed a second plea to the
jurisdiction incorporating the arguments in their first plea and further asserting that the
Association had no standing to seek a declaratory judgment.
The trial court granted appellees’s plea to the jurisdiction and dismissed
appellants’s claims against appellees in both suits.5 Appellants timely brought this
interlocutory appeal. See TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(8) (West,
Westlaw through 2013 3d C.S.) (permitting an interlocutory appeal of an order granting
or denying a plea to the jurisdiction by a government unit).
II. STANDARD OF REVIEW & APPLICABLE LAW
A plea to the jurisdiction challenges a trial court’s subject matter jurisdiction over a
case. City of Dallas v. Carbajal, 324 S.W.3d 537, 538 (Tex. 2010) (per curiam). Whether
subject matter jurisdiction exists is a question of law that we review de novo. Id.
The burden is on the plaintiff to demonstrate the trial court’s jurisdiction. Heckman
v. Williamson County, 369 S.W.3d 137, 150 (Tex. 2012). When a plea to the jurisdiction
challenges the pleadings, our task is to determine if the pleader has alleged facts that
affirmatively demonstrate the trial court’s jurisdiction. Tex. Dep’t of Parks & Wildlife v.
4 The Association described itself in its plea in intervention as “being composed of over 1,600 police
officers” employed by the City of Austin, including Officer Harvel.
5 The City of Austin did not file a plea to the jurisdiction and is not a party to this appeal.
4
Miranda, 133 S.W.3d 217, 226 (Tex. 2004). We begin our analysis of a plea to the
jurisdiction with the live pleadings. Heckman, 369 S.W.3d at 150. We may also consider
evidence submitted to negate the existence of jurisdiction and must do so when the
evidence necessarily resolves the jurisdictional issue. Id. We construe the pleadings
liberally, accepting all factual allegations as true, and look to the intent of the pleader. Id.
We must grant the plea if the pleadings affirmatively negate the existence of jurisdiction.
Miranda, 133 S.W.3d at 227. If the pleadings do not contain sufficient facts to
demonstrate jurisdiction but also do not affirmatively negate it, the issue is one of pleading
sufficiency. Id.
Sovereign immunity generally deprives the trial court of jurisdiction over a lawsuit
in which the party has sued the State or a state agency unless the Legislature has waived
immunity. Tex. Parks & Wildlife Dep’t. v. Sawyer Trust, 354 S.W.3d 384, 388 (Tex. 2011).
The UDJA is not a general waiver of sovereign immunity but does provide a narrow waiver
of immunity for claims challenging the validity of ordinances or statutes. Id.; City of El
Paso v. Heinrich, 284 S.W.3d 366, 373 n.6 (Tex. 2009). However, the UDJA does “not
waive the state's sovereign immunity when the plaintiff seeks a declaration of his or her
rights under a statute or other law.” Tex. Dep’t of Transp. v. Sefzik, 355 S.W.3d 618, 621
(Tex. 2011) (per curiam) (citing Heinrich, 284 S.W.3d at 372–73); accord Abbott v. G.G.E,
No. 03-11-00338-CV, ___ S.W.3d ____, 2015 WL 1968262, at *13 n.14 (Tex. App.—
Austin Apr. 30, 2015, no. pet. h.). Related to this rule is the ultra vires exception, which
permits private parties to bring claims against state officials for nondiscretionary acts
unauthorized by law. Sefzik, 355 S.W.3d at 621. Such lawsuits are not “against the
State” and therefore not barred by sovereign immunity. Id.; see Heinrich, 284 S.W.3d at
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373.
III. OFFICER HARVEL’S SUIT FOR JUDICIAL REVIEW
Officer Harvel’s petition sought both judicial review of the Division’s final order
denying him workers’s compensation benefits and a declaratory judgment. Judicial
review of a final agency order and a UDJA action are separate proceedings authorized
and governed by different statutes. See TEX. LAB. CODE ANN. § 410.251 (authorizing
judicial review of a final order of the Division once the claimant has exhausted all
administrative remedies); TEX. CIV. PRAC. & REM. CODE ANN. § 37.003 (authorizing a suit
for a declaratory judgment). Appellees filed a plea to the jurisdiction challenging the trial
court’s jurisdiction over them in both suits, but appellants did not address why appellees
are proper parties to Officer Harvel’s suit for judicial review as distinguished from
appellants’s UDJA action in their briefs to this Court. The appellant’s brief must contain
a clear and concise argument for the party’s contest accompanied by appropriate citations
to authorities and to the record. TEX. R. APP. P. 38.1(i); see Strange v. Cont'l Cas. Co.,
126 S.W.3d 676, 678 (Tex. App.—Dallas 2004, pet. denied) (“An issue on appeal
unsupported by argument or citation to any legal authority presents nothing for the court
to review.”). To the degree that Officer Harvel raises an issue that appellees are proper
parties to his suit for judicial review, we overrule it as inadequately briefed. See TEX. R.
APP. P. 38.1(i); Strange, 126 S.W.3d at 678.
IV. DECLARATORY RELIEF
We next turn to appellants’s argument that sovereign immunity does not bar their
UDJA action against the Division and the Commissioner.
Appellants sought two declarations under the UDJA: (1) that a peace officer who
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witnesses an illegal act is immediately within the course and scope of his or her
employment; and (2) that employer-directed travel includes an “employee traveling at the
direction of the employer from home to a specially assigned work location.” Sovereign
immunity bars both claims because appellants seek a declaration of their rights under a
statute but do not challenge the validity of any statute or ordinance. See Sefzik, 355
S.W.3d at 621. Appellants assert that the Texas Supreme Court permitted a similar UDJA
action to continue in Texas Lottery Commission v. First State Bank of DeQueen, but that
case is distinguishable and does not support appellants’s argument. 325 S.W.3d 628,
633–34 (Tex. 2010). Texas Lottery Commission involved whether provisions of the
Uniform Commercial Code invalidated certain sections of the Texas Lottery Act. Id. at
634. Thus, Texas Lottery Commission fits into the narrow UDJA waiver of sovereign
immunity for suits challenging the validity of statutes which the Texas Supreme Court
recognized in Heinrich. See id. at 635 (“Because the claim at issue here is not one
involving a government officer's action or inaction, but is a challenge to a statute, this is
not an ultra vires claim to which a government officer should have been made a party”);
see also Heinrich, 284 S.W.3d 372–73. Appellants’s UDJA action is more akin to the one
the Austin Court of Appeals addressed in Trinity Settlement Services, LLC v. Texas State
Securities Board, where Trinity sought a declaratory judgment of its rights and status
under the Texas Securities Act. 417 S.W.3d 494, 503 (Tex. App.—Austin 2013, pet.
denied). The court of appeals held that sovereign immunity barred Trinity’s claims for
declaratory judgment against the Texas State Securities Board because Trinity sought
only a declaration of its rights and status under the Act. Id. (citing Sefzik, 355 S.W.3d at
621). Appellants seek similar relief in the case at bar: a declaration of their rights under
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a statute. Without a legislative waiver, sovereign immunity bars appellants’s suit.6
Appellants have not directed us to any legislative waiver of immunity for their suit, and we
have found none. We conclude that the trial court did not err in granting appellees’s plea
to the jurisdiction.7 See Sefzik, 355 S.W.3d at 621; Trinity Settlement Servs., 417 S.W.3d
at 503; see also City of McKinney v. Hank's Rest. Group, L.P., 412 S.W.3d 102, 113 (Tex.
App.—Dallas 2013, no pet.) (holding that the UDJA did not waive immunity for the
appellee’s claims “seeking interpretations of City ordinances, declarations of HRG's
statutory rights and declarations that City officials have violated or are violating the law”).
When we hold that the trial court is without subject-matter jurisdiction, we allow a
plaintiff to replead if the defect can be cured. See Miranda, 133 S.W.3d at 226–227. We
will not afford Officer Harvel an opportunity to replead because the relief requested under
the UDJA Act mirrors the relief he requested in the suit for judicial review. When a plaintiff
“has invoked a statutory means of attacking an agency order, a trial court lacks jurisdiction
over an additional claim under the UDJA that would merely determine the same issues
and provide what is substantively the same relief that would be provided by the other
statutory remedy.” Tex. Dep’t of State Health Servs. v. Balquinta, 429 S.W.3d 726, 746
(Tex. App.—Austin 2014, pet. dism’d); SWEPI LP v. R.R. Com'n of Tex., 314 S.W.3d 253,
6 We note that unlike Sefzik, appellants brought suit against a state official, the Commissioner of
Workers’ Compensation. However, appellants do not allege that the Commissioner acted ultra vires or
request that we remand to afford appellants an opportunity to plead an ultra vires suit. See Tex. Dep’t. of
Transp. v. Sefzik, 355 S.W.3d 618, 623 (Tex. 2011) (per curiam) (affirming a plea to the jurisdiction but
remanding to permit the plaintiff to plead an ultra vires suit).
7 Appellants assert numerous times in their appellate briefs that a UDJA action in which the
Commissioner and the Division are parties is the only way to bind the Commissioner and the Division to
apply the declarations appellants seek in subsequent contested case proceedings. Appellants do not
explain why the Division and the Commissioner would not be bound to apply a district court decision
agreeing with Officer Harvel that the Texas Code of Criminal Procedure places police officers in the course
and scope of their employment as soon as they witness a violation of the law. In any event, we have
concluded that the trial court correctly concluded that it lacked jurisdiction over this appeal. A court without
jurisdiction has no choice but to dismiss the case. See State v. Morales, 869 S.W.2d 941, 949 (Tex. 1994).
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268 (Tex. App.—Austin 2010, pet. denied). Both Officer Harvel’s suit for judicial review
and his UDJA action seek rulings that (1) a peace officer is in the course and scope of
employment as soon as the officer witnesses an illegal act and (2) that employer-directed
travel for purposes of the Texas Workers’ Compensation Act includes travel from the
employee’s home to a specially-assigned work location. If Officer Harvel was successful
on either suit he would receive substantively the same relief: reversal of the final order
denying him workers’s compensation benefits. The pleadings have affirmatively negated
jurisdiction because the declarations Officer Harvel seeks under the UDJA action are
duplicative of his suit for judicial review. See Balquinta, 429 S.W.3d at 746; SWEPI, 314
S.W.3d at 268.
We will not afford the Association an opportunity to replead because the pleadings
conclusively demonstrate the absence of a justiciable controversy between the
Association and appellees. See Brooks v. Northglen Ass'n, 141 S.W.3d 158, 163–64
(Tex. 2004). The trial court has jurisdiction to address a suit for declaratory relief only if
a justiciable controversy exists regarding the rights and status of the parties actually
before the court and the declaration sought will actually resolve the controversy. Id. A
justiciable controversy involves a real and substantial conflict of tangible interests and not
merely a theoretical or hypothetical dispute. Bonham State Bank v. Beadle, 907 S.W.2d
465, 467 (Tex. 1995); see Trinity Settlement Servs., 417 S.W.3d at 505 (observing that a
justiciable controversy does not exist if a case requires the trial court to “pass upon
hypothetical or contingent situations, or to determine questions not then essential to the
decision of an actual controversy, although such actions may in the future require
adjudication”). The Association seeks a declaration that would apply to all of its police
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officers, but none of those officers except for Officer Harvel are before the Court. At best,
the Association has identified hypothetical disputes which are likely to occur between the
Division and its member officers in the future if one of the officers is injured. While it is
certainly possible that one of the Association’s member officers could be injured when
traveling to work in a manner similar to Officer Harvel’s experience, such an injury is
merely hypothetical at this point. See Bonham State Bank, 907 S.W.2d at 467. We
conclude that the pleadings affirmatively negate the existence of jurisdiction because the
Association has not shown that any possible injury is “imminent, direct, and immediate,
and not merely remote, conjectural, or hypothetical.” See Rea v. State, 297 S.W.3d 379,
383 (Tex. App.—Austin 2009, no pet.). We will not afford the Association an opportunity
to replead.
V. CONCLUSION
We affirm the trial court’s order granting the plea to the jurisdiction.
NORA LONGORIA,
Justice
Delivered and filed the
21st day of May, 2015.
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