Francisca Okonkwo, Administrative Law Judge, Texas Department of Insurance, Division of Workers' Compensation, in Her Official Capacity and Fort Bend County v. Joshua David Heiliger, Individually, and on Behalf of the Estate of Lauren Brittane Smith, and on Behalf of Death Benefits Beneficiaries Joshua David Heiliger and Emma Destiny Heiliger

ACCEPTED

15-25-00061-CV

FIFTEENTH COURT OF APPEALS

AUSTIN, TEXAS

6/13/2025 4:34 PM

NO. 15-25-00061-CV CHRISTOPHER A. PRINE

CLERK

FILED IN

IN THE FIFTEENTH COURT OF APPEALS

15th COURT OF APPEALS

AUSTIN, TEXAS

AUSTIN, TEXAS

6/13/2025 4:34:03 PM

CHRISTOPHER A. PRINE

FRANCISCA OKONKWO, ADMINISTRATIVE LAW JUDGE,Clerk TEXAS

DEPARTMENT OF INSURANCE, DIVISION OF WORKERS’

COMPENSATION, IN HER OFFICIAL CAPACITY, AND FORT BEND

COUNTY,

Appellants,

v.

JOSHUA DAVID HEILIGER, INDIVIDUALLY, AND ON BEHALF OF

THE ESTATE OF LAUREN BRITTANE SMITH, DECEASED, AND ON

BEHALF OF DEATH BENEFITS BENEFICIARIES JOSHUA DAVID

HEILIGER AND EMMA DESTINY HEILIGER AND GREATER

HOUSTON PSYCHIATRIC ASSOCIATES, PLLC,

Appellees.

On Appeal from the 11th Judicial District Court, Harris County, Texas

Cause No. 2024-78536

The Honorable Judge Kristen Brauchle Hawkins, Presiding

APPELLANT FRANCISCA OKONKWO’S MERITS BRIEF

June 13, 2025

ORAL ARGUMENT REQUESTED

KEN PAXTON JAMES Z. BRAZELL

Attorney General of Texas State Bar No. 02930100

Assistant Attorney General

BRENT WEBSTER SHERLYN HARPER

First Assistant Attorney General State Bar No. 24093176

Assistant Attorney General

RALPH MOLINA Administrative Law Division

Deputy First Assistant Attorney OFFICE OF THE ATTORNEY GENERAL

General OF TEXAS

P.O. Box 12548, Capitol Station

AUSTIN KINGHORN Austin, Texas 78711-2548

Deputy Attorney General for Civil Telephone: (512) 475-3204

Litigation Telephone: (713) 225-8913

Facsimile:(512) 320-0167

ERNEST C. GARCIA james.brazell@oag.texas.gov

Chief, Administrative Law Division sherlyn.harper@oag.texas.gov

ATTORNEYS FOR APPELLANT

FRANCISCA OKONKWO,

ADMINISTRATIVE LAW JUDGE, TEXAS

DEPARTMENT OF INSURANCE -

DIVISION OF WORKERS’

COMPENSATION, IN HER OFFICIAL

CAPACITY

ii

IDENTITY OF PARTIES AND COUNSEL

Pursuant to Texas Rule of Appellate Procedure 52.3(a), the following is a

complete list of all the parties and the names and addresses of all counsel:

APPELLANTS:

Party Trial and Appellate Counsel

Appellant, Francisca MR. JAMES Z. BRAZELL

Okonkwo, Administrative Law State Bar No. 02930100

Judge, Texas Department of Assistant Attorney General

Insurance - Division of MS. SHERLYN HARPER

Workers’ Compensation, in State Bar No. 24093176

her Official Capacity Assistant Attorney General

(Okonkwo) Administrative Law Division

Office of the Attorney General of Texas

P.O. Box 12548, Capitol Station

Austin, Texas 78711-2548

Telephone: (512) 475-3204

Telephone: (713) 225-8913

Facsimile: (512) 320-0167

james.brazell@oag.texas.gov

sherlyn.harper@oag.texas.gov

Appellant/Real Party in DEAN G. PAPPAS

Interest, Fort Bend County State Bar No. 15454375

(Fort Bend) MARY M. MARKANTONIS

State Bar No. 12986800

LISA M. TEACHEY

State Bar No. 24056416

MARILYN J. ALLEN

State Bar No. 24025225

Dean G. Pappas Law Firm, PLLC

8588 Katy Freeway, Suite 100

Houston, Texas 77024

iii

Telephone: (713) 914-6200

Facsimile: (713) 914-6201

dpappas@dgplawfirm.com

mmarkantonis@dgplawfirm.com

lteachey@dgplawfirm.com

mallen@dgplawfirm.com

APPELLEES:

Party Counsel

Appellees, Joshua David RUSSELL L. MORRIS

Heiliger, Individually, and on State Bar No. 24099150

Behalf of the Estate of Lauren ANDREW W. BRUCE

Brittane Smith, Deceased, and State Bar No. 24113627

on Behalf of Death Benefits PABLO A. FRANCO

Beneficiaries Joshua David State Bar No. 24121625

Heiliger and Emma Destiny McBryde Franco, PLLC

Heiliger 11000 Richmond Avenue, Suite 350

Houston, Texas 77042

Telephone: (713) 223-7699

Facsimile: (512) 691-9072

Serv.russell@mf-txlaw.com

Serv.andrew@mf-txlaw.com

Serv.pablo@mf-txlaw.com

Appellees, Greater Houston LAVERNE CHANG

Psychiatric Associates, PLLC State Bar No. 00783819

Cardwell & Chang, PLLC

511 Lovett Blvd.

Houston, Texas 77006

Telephone: (713) 222-6025

Chang@cardwellchang.com

iv

REFERENCES TO THE PARTIES

Appellant Francisca Okonkwo, in her official capacity as Administrative Law

Judge for the Texas Department of Insurance - Division of Workers’ Compensation,

will be referred to as “ALJ Okonkwo” or “Ms. Okonkwo.”

Appellees, Joshua Heiliger, et al., will be referred to, collectively, as “Mr.

Heiliger” or “Heiliger.”

Fort Bend County will be referred to as “Fort Bend” or “the County.”

Greater Houston Psychiatric Associates, PLLC will be referred to as “Greater

Houston.” Dr. John Marcellus, an employee of Greater Houston will be referred to

as “Dr. Marcellus.”

v

REFERENCES TO THE RECORDS AND APPENDICES

Clerk’s Record (April 30, 2025): ............................................. C.R. [Page no.]

Supplemental Clerk’s Record (May 23, 2025) ................. S.C.R. Exh. [Letter]

Appendix: .................................................................... Okonkwo App. [Letter]

vi

TABLE OF CONTENTS

Identity of Parties and Counsel ................................................................................ iii

References to the Parties ............................................................................................v

References to the Records and Appendices ............................................................. vi

Table of Contents .................................................................................................... vii

Index of Authorities ................................................................................................. ix

Statement of the Case.............................................................................................. xii

Statement on Oral Argument ................................................................................. xiv

Issues Presented .......................................................................................................xv

I. Summary of the Argument ............................................................................16

II. Statement of Facts..........................................................................................17

III. Standard of Review........................................................................................20

IV. Argument .......................................................................................................25

The trial court abused its discretion by denying Ms. Okonkwo’s PTJ in her

official capacity. .........................................................................................25

1. Mr. Heiliger’s ultra vires allegations (that Ms. Okonkwo issued a

subpoena in an unapproved form) do not state a valid ultra vires

claim and are in any event moot. ...........................................................25

2. Ms. Okonkwo’s subpoenas did not, and do not, deprive Husband of

his constitutionally protected privilege rights. .......................................27

3. Heiliger’s arguments against Issue One are baseless. ...............................29

The trial court’s ruling failed to correctly consider and apply the critical

applicable law. ...........................................................................................30

1. The trial court failed to give effect to the Offensive Use Doctrine. ..........31

2. The trial court’s ruling failed to give effect to the Patient Litigant

Exception in Texas Rules of Evidence 509(e)(4) and 510(d)(5). ..........32

vii

3. The trial court’s ruling failed to give effect to the provisions of Texas

Health and Safety Code sections 611.004(a)(1) and

611.006(a)(11). .......................................................................................33

4. Mr. Heiliger’s claim that the records have not been shown to be

relevant and determinative fails. ............................................................33

V. Conclusion .....................................................................................................35

Prayer .......................................................................................................................36

Certificate of Compliance ........................................................................................38

Certificate of Service ...............................................................................................39

Index of Appendices ................................................................................................40

viii

INDEX OF AUTHORITIES

Cases

Alamo Heights Indep. Sch. Dist. v. Clark,

544 S.W.3d 755 (Tex. 2018) ................................................................................23

Approach Res. I, L.P. v. Clayton,

360 S.W.3d 632 (Tex. App.—El Paso 2012, no pet.) ..........................................24

City of El Paso v. Heinrich,

284 S.W.3d 366 (Tex. 2009) ................................................................................25

City of San Antonio v. Maspero,

640 S.W.3d 523 (Tex. 2022) ................................................................................22

Coastal Habitat All. v. Pub. Util. Comm’n of Tex.,

294 S.W.3d 276 (Tex. App.—Austin 2009, no pet.) .................................... 26, 27

El Paso Nat. Gas Co. v. Minco Oil & Gas, Inc.,

8 S.W.3d 309 (Tex. 1999) ....................................................................................20

Employees Ret. Sys. of Tex. v. Jones,

58 S.W.3d 148 (Tex. App.—Austin 2001, no pet.) .............................................20

Feldman v. KPMG LLP,

438 S.W.3d 678 (Tex. App.—Houston [1st Dist.] 2014, no pet.) .......................24

Friends of Canyon Lake, Inc. v. Guadalupe-Blanco River Auth.,

96 S.W.3d 519 (Tex. App.—Austin 2002, pet. denied).......................................26

Ginsberg v. Fifth Ct. of Appeals,

686 S.W.2d 105 (Tex. 1985) ......................................................................... 28, 32

Hall v. McRaven,

508 S.W.3d 232 (Tex. 2017) ......................................................................... 25, 27

Heckman v. Williamson Cty.,

369 S.W.3d 137 (Tex. 2012) ................................................................................21

Hosner v. DeYoung,

1 Tex. 764 (1847) .................................................................................................22

Mission Consol. Indep. Sch. Dist. v. Garcia,

372 S.W.3d 629 (Tex. 2012) ................................................................................23

ix

Nettles v. GTECH Corp.,

606 S.W.3d 726 (Tex. 2020) ................................................................................21

Paxton v. City of Dall.,

509 S.W.3d 247 (Tex. 2017) ......................................................................... 28, 32

Pennhurst State Sch. & Hosp. v. Halderman,

465 U.S. 89, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984) ..............................................26

Quick v. City of Austin,

7 S.W.3d 109(Tex. 1998) .....................................................................................20

Republic Ins. Co. v. Davis,

856 S.W.2d 158 (Tex. 1993) ......................................................................... 28, 32

Slade v. Tex. S. Univ. Bd. of Regents,

232 S.W.3d 395 (Tex. App.—Houston [1st Dist.] 2007, no pet.) ........................24

State v. Holland,

221 S.W.3d 639 (Tex. 2007) ................................................................................22

State v. Lueck,

290 S.W.3d 876 (Tex. 2009) ................................................................................22

Steering Committees for the Cities Served by TXU Elec. v. Pub. Util. Comm’n,

42 S.W.3d 296 (Tex. App.—Austin 2001, no pet.) .............................................20

Tex. A & M Univ. Sys. v. Koseoglu,

233 S.W.3d 835 (Tex. 2007) ................................................................................21

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

852 S.W.2d 440 (Tex. 1993) ................................................................................21

Tex. Dep’t of Parks & Wildlife v. Miranda,

133 S.W.3d 217 (Tex. 2004) ............................................................. 21, 22, 23, 24

Tex. Dep’t of Protective & Reg. Servs. v. Mega Child Care, Inc.,

145 S.W.3d 170 (Tex. 2004) ................................................................................20

Tex. Health & Human Servs. Comm’n v. Pope,

674 S.W.3d 273 (Tex. 2023) ......................................................................... 22, 23

x

Statutes

Tex. Civ. Prac. & Rem. Code § 51.014(a)(4) ........................................................ xiv

Tex. Civ. Prac. & Rem. Code § 51.014(a)(8) ........................................................ xiv

Tex. Gov’t Code § 22.220(d) ................................................................................. xiv

Tex. Gov’t Code § 312.005......................................................................................20

Tex. Gov’t Code § 554.003(a) .................................................................................22

Tex. Gov’t Code § 554.0035....................................................................................22

Tex. Health & Safety Code § 611.004(a)(1) ..................................................... 29, 33

Tex. Health & Safety Code § 611.006(a)(11)................................................... 29, 33

Tex. Lab. Code subchapter D ..................................................................................27

Rules

28 Tex. Admin. Code § 142.1 ..................................................................................27

28 Tex. Admin. Code § 142.12 ................................................................................27

Tex. R. App. P. 26.1(b) .......................................................................................... xiv

Tex. R. App. P. 28.................................................................................................. xiv

Tex. R. App. P. 29.................................................................................................. xiv

Tex. R. App. P. 38.1(e) ............................................................................................xv

Tex. R. App. P. 39.1.................................................................................................xv

Tex. R. Evid. 509(e)(4) ..................................................................................... 29, 32

Tex. R. Evid. 510(d)(5) ..................................................................................... 29, 32

xi

STATEMENT OF THE CASE

Nature of the Case: This is an appeal over the trial court’s approval of a

Temporary Injunction enjoining Texas Department of

Insurance - Division of Workers’ Compensation

(“TDI-DWC” or “Division”) ALJ Francisca

Okonkwo’s issuance of a subpoena for mental health

records in a contested case at TDI-DWC brought by

Appellee Heiliger.

Course of Proceedings: Appellee Joshua David Heiliger (“Heiliger” or

“Husband”) seeks death benefits from TDI-DWC for

the unexpected death of his Wife, Lauren Brittane

Smith (“Ms. Smith” or “Wife”), deceased.

In the contested case hearing over Heiliger’s claim at

TDI-DWC, Fort Bend County (“Fort Bend” or “Real

Party in Interest”), the respondent employer in

Heiliger’s TDI-DWC claim, requested that ALJ

Okonkwo issue a subpoena ordering disclosure of

deceased Wife’s mental health records from Greater

Houston and Dr. Marcellus. Although Husband is

seeking death benefits, Husband opposed the

subpoena, claiming the records are privileged.

Husband filed suit in Harris County District Court

against TDI, TDI-DWC, and ALJ Okonkwo in both

her official and individual capacities. Husband sought

and was granted a Temporary Restraining Order to

prohibit the disclosure of Wife’s mental health records.

More recently, Husband sought and was granted a

Temporary Injunction, which keeps the prohibition in

place until trial. Husband’s request for a Permanent

Injunction is scheduled to be tried in the trial court’s

two-week docket starting on December 1, 2025.

Appellant ALJ Okonkwo brings this interlocutory

accelerated appeal of the trial court’s April 2, 2025,

denial of ALJ Okonkwo’s Plea to the Jurisdiction and

Motion to Dismiss and of the court’s approval of

Heiliger’s requested Temporary Injunction,

prohibiting the disclosure of the deceased Wife’s

xii

mental health records pursuant to the subpoena,

thereby rendering it impossible for the ALJ to review

a complete factual record in drafting proposal for

decision.

Trial Court: The Honorable Kristen Brauchle Hawkins, 11th

Judicial District Court, Harris County, Texas.

Trial Court The trial court granted in part and denied in part ALJ

Disposition: Okonkwo’s Plea to the Jurisdiction, denied ALJ

Okonkwo’s Motion to Dismiss, and granted Heiliger’s

request for a Temporary Injunction against Greater

Houston prohibiting production of Wife’s mental

health records in the contested case proceeding.

Appellate Review: This is an interlocutory appeal from the trial court’s

order granting a Temporary Injunction and denying

Ms. Okonkwo’s Plea to the Jurisdiction. Tex. Civ.

Prac. & Rem. Code §§ 51.014(a)(4) & (a)(8). This

appeal must be brought in the 15th Court of Appeals.

Tex. Gov’t Code § 22.220(d). Appellant timely filed

her notice of appeal on April 22, 2025, within 20 days

after the order granting the Temporary Injunction.

This appeal may proceed as an accelerated appeal.

Tex. R. App. P. 26.1(b), 28 & 29.

xiii

STATEMENT ON ORAL ARGUMENT

Appellant ALJ Okonkwo respectfully requests that this Court grant oral

argument and requests to be allowed to participate if oral argument is scheduled by

the Court. This appeal raises important issues regarding the proper limits on the

assertion of claims of privilege and confidentiality in applications for affirmative

relief. Oral argument will assist the Court in understanding the record, the parties’

claims and arguments, and the governing law. Tex. R. App. P. 38.1(e) & 39.1.

xiv

ISSUES PRESENTED

Issue One: Did the trial court abuse its discretion by denying Ms. Okonkwo’s Plea

to the Jurisdiction and her Motion to Dismiss?

Issue Two: Did the trial court abuse its discretion by granting injunctive relief

prohibiting Greater Houston and Dr. Marcellus from producing or disclosing Wife’s

mental health records and by refusing to correctly apply the Offensive Use Doctrine,

the Patient Litigation Exception, and the statutory provisions regarding disclosure of

mental health records in chapter 611 of the Texas Health and Safety Code?

xv

TO THE HONORABLE JUSTICES OF THE FIFTEENTH COURT OF APPEALS:

COMES NOW Appellant, Francisca Okonkwo, Administrative Law Judge of

the Texas Department of Insurance - Division of Workers’ Compensation, in her

official capacity, by and through the Office of the Attorney General of Texas and

the undersigned Assistant Attorneys General, and files her merits brief.

I. SUMMARY OF THE ARGUMENT

Argument: Issue One. The trial court abused its discretion by denying Ms.

Okonkwo’s Plea to the Jurisdiction (“PTJ”) in her official capacity, [Okonkwo Apps.

A, C & D] which asserts ALJ Okonkwo is entitled to sovereign immunity in that

capacity. The trial court also abused its discretion by denying Ms. Okonkwo’s

Motion to Dismiss. [Okonkwo App. A]. Husband’s claim that Ms. Okonkwo acted

ultra vires is without foundation and is moot. Husband’s claim that ALJ Okonkwo

denied him his constitutionally protected privilege rights is without merit under a)

the Offensive Use Doctrine; b) the Patient Litigant Exception in Texas Rules of

Evidence 509(e)(4) [see Okonkwo App. F] and 510(d)(5) [see Okonkwo App. G];

and c) the statutory provisions in Texas Health and Safety Code sections

611.004(a)(1) and 611.006(a)(11) (applied together). [See Okonkwo Apps. H & I].

Argument: Issue Two. The trial court’s order granting Heiliger’s Temporary

Injunction failed to correctly consider and apply applicable law. [Okonkwo App. B].

The trial court abused its discretion by granting injunctive relief prohibiting Greater

Houston and Dr. Marcellus from disclosing Wife’s records and by refusing to

correctly apply a) the Offensive Use Doctrine; b) the Patient Litigant Exception in

Texas Rules of Evidence 509(e)(4) and 510(d)(5); and c) the statutory provisions in

Texas Health and Safety Code sections 611.004(a)(1) and 611.006(a)(11) (applied

together).

Ms. Okonkwo’s Plea to the Jurisdiction should have been granted by the

district court. All injunctive relief should have been denied because Husband

Heiliger’s objection to disclosing confidential or privileged matters in his claim

before the agency seeking monetary death benefits for his Wife’s death violates the

Offensive Use Doctrine, the Patient Litigant Exception, and Texas Health and Safety

Code sections 611.004(a)(1) and 611.006(a)(11).

II. STATEMENT OF FACTS

Husband, Joshua David Heiliger (“Heiliger” or “Husband”), seeks death

benefits from Fort Bend County at the Texas Department of Insurance - Division of

Workers’ Compensation for the unexpected death of his wife, Lauren Brittane Smith

(Ms. Smith or Wife), deceased. (S.C.R. Exhs. B & C). Ms. Smith’s death by a

stroke may have been caused by or contributed to by her stressful work as a first

responder for Fort Bend County and her chronic hypertension. Her death occurred

at home on the couch after a very long work shift. (S.C.R. Exhs. B, C, D, F & G).

Alternatively, her death may have been caused by or contributed to by her long-term

APPELLANT OKONKWO’S MERITS BRIEF Page 17 of 40

Case No. 15-25-00061-CV; Okonkwo, et al. v. Heiliger, et al.

use and potential abuse of prescription drugs Adderall and Vyvanse, (S.C.R. Exh. J)

both amphetamines with potential to aggravate her hypertension. Id. Mental health

records indicating the contribution of Wife’s stress and drug use to her death are

believed to be maintained in the records kept by her mental health provider, Greater

Houston Psychiatric Associates, PLLC, and Dr. John Marcellus. (S.C.R. Exhs. G &

J).

In the contested case hearing at TDI-DWC, Real Party in Interest Fort Bend

County requested that ALJ Francisca Okonkwo, the Administrative Law Judge

presiding over Mr. Heiliger’s application for death benefits at TDI-DWC, issue a

subpoena requesting deceased Wife’s mental health records from Greater Houston

and Dr. Marcellus. (C.R. at 164-182). Although he is seeking a benefit, Husband

opposed the request for subpoena, claiming the requested records were privileged.

(C.R. at 145-163 & 325-336). Husband filed suit in Harris County District Court

against TDI-DWC and ALJ Okonkwo, in both her official and individual capacities.

(C.R. 136-163). Husband sought and was granted a temporary restraining order to

prohibit the disclosure of Wife’s mental health records. (C.R. at 20-24, 48-50, 453-

57, 458-59, 604-05 & 614-18). Subsequently, Husband sought and was granted a

Temporary Injunction, which keeps the injunction in place until trial. (C.R. 604-05,

606-610, 611-13). Husband’s request for a permanent injunction is scheduled for

APPELLANT OKONKWO’S MERITS BRIEF Page 18 of 40

Case No. 15-25-00061-CV; Okonkwo, et al. v. Heiliger, et al.

trial on the trial court’s two-week docket starting on December 1, 2025. (C.R. 606-

610).

Husband dropped his claims against ALJ Okonkwo in her individual capacity,

and in its April 2, 2025, Order the Court partially granted Ms. Okonkwo’s PTJ on

that basis, dismissing her in her individual capacity only. (C.R. 534 ¶ 9 & 612-13).

The Court also granted Husband’s requested Temporary Injunction, in part,

enjoining Greater Houston and Dr. Marcellus from disclosing Ms. Smith’s records,

but denying Husband’s request to enjoin the TDI-DWC and Ms. Okonkwo from

issuing subpoenas. (C.R. 606-610).

Husband initially claimed that ALJ Okonkwo acted ultra vires by approving

a subpoena in a format that failed to state whether the subpoena was for a deposition

or a hearing. (C.R. 141-43 & 152). ALJ Okonkwo withdrew and vacated the first

subpoena and replaced it with a second subpoena that did not have the claimed

procedural issues. (C.R. 341-49, 387-414 & 563-67; S.C.R. Exh. A). The withdrawal

and replacement mooted Heiliger’s ultra vires claims. (C.R. 341-49, 387-414 & 563-

67; S.C.R. Exh. A). Husband, however, continued to claim that sovereign immunity

was waived by ALJ Okonkwo’s denial of his constitutionally protected privilege

rights and by her alleged ultra vires acts that he claimed resulted from the improper

form of the first subpoena. (C.R. 136-163). Impliedly approving Husband’s claims,

the Court denied TDI-DWC’s and Ms. Okonkwo’s PTJ arguments that Ms.

APPELLANT OKONKWO’S MERITS BRIEF Page 19 of 40

Case No. 15-25-00061-CV; Okonkwo, et al. v. Heiliger, et al.

Okonkwo is protected in her official capacity by sovereign immunity and that

Husband’s claims against her in her official capacity should be dismissed. (C.R. 611-

13).

III. STANDARD OF REVIEW

The first issue before this Court is whether the trial court had jurisdiction in

this case. Questions of law are reviewed de novo. El Paso Nat. Gas Co. v. Minco Oil

& Gas, Inc., 8 S.W.3d 309, 312 (Tex. 1999). In a de novo review, the reviewing

court conducts a review of the record to make its own legal determinations and

conclusions. Quick v. City of Austin, 7 S.W.3d 109, 116 (Tex. 1998). When

construing a statute, the court’s objective is to ascertain and effectuate the

legislature’s intent. Tex. Gov’t Code § 312.005; Tex. Dep’t of Protective & Reg.

Servs. v. Mega Child Care, Inc., 145 S.W.3d 170, 176 (Tex. 2004). An

administrative agency’s construction or interpretation of a statute that the agency is

charged with enforcing is entitled to serious consideration by reviewing courts, so

long as that construction is reasonable and does not contradict the plain language of

the statute. Employees Ret. Sys. of Tex. v. Jones, 58 S.W.3d 148, 151 (Tex.

App.—Austin 2001, no pet.) (citing Steering Committees for the Cities Served by

TXU Elec. v. Pub. Util. Comm’n, 42 S.W.3d 296, 300 (Tex. App.—Austin 2001, no

pet.)). The parties’ dispute concerns the trial court’s jurisdiction to resolve

APPELLANT OKONKWO’S MERITS BRIEF Page 20 of 40

Case No. 15-25-00061-CV; Okonkwo, et al. v. Heiliger, et al.

Appellees’ claims. Both of these issues are reviewed under the aforementioned de

novo standard.

Subject-matter jurisdiction is essential to a court’s authority to decide a case

and is properly challenged by a plea to the jurisdiction. Heckman v. Williamson Cty.,

369 S.W.3d 137, 149 (Tex. 2012); Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852

S.W.2d 440, 443 (Tex. 1993). The plaintiff bears the burden of pleading facts

sufficient to demonstrate the trial court’s jurisdiction over his claims. Tex. Ass’n of

Bus., 852 S.W.2d at 446. When a plea to the jurisdiction challenges the pleadings

(as opposed to challenging the existence of jurisdictional facts), the court looks to

the pleader’s intent, construes the pleadings liberally in favor of jurisdiction, and

accepts the allegations in the pleadings as true to determine whether the plaintiff has

alleged facts sufficient to demonstrate, affirmatively, that the trial court has

jurisdiction to hear the claim. Heckman, 369 S.W.3d at 150. If the plaintiff’s

pleadings negate the existence of jurisdiction by revealing an incurable defect, the

claims should be dismissed without an opportunity for the plaintiff to replead. Tex.

A & M Univ. Sys. v. Koseoglu, 233 S.W.3d 835, 840 (Tex. 2007).

Whether a trial court has subject-matter jurisdiction over the plaintiff’s claims

is a question of law. Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217,

226 (Tex. 2004). For that reason, a court will review a ruling on a plea to the

jurisdiction de novo. Nettles v. GTECH Corp., 606 S.W.3d 726, 731 (Tex. 2020).

APPELLANT OKONKWO’S MERITS BRIEF Page 21 of 40

Case No. 15-25-00061-CV; Okonkwo, et al. v. Heiliger, et al.

The State and its agencies, as well as its employees and agents in their official

capacities, including ALJ Okonkwo, “are immune from suit and liability in Texas

unless the Legislature expressly waives sovereign immunity.” Tex. Health & Human

Servs. Comm’n v. Pope, 674 S.W.3d 273, 280–81 (Tex. 2023); State v. Lueck, 290

S.W.3d 876, 880 (Tex. 2009). An agency may assert its immunity in a plea to the

jurisdiction. Miranda, 133 S.W.3d at 225-26; see also Hosner v. DeYoung, 1 Tex.

764, 769 (1847). Although immunity from suit is a jurisdictional question generally

distinct from immunity from liability, the courts have held the two may be

interwoven in certain contexts which require plaintiffs to allege jurisdictional facts

giving rise to an actual violation to qualify for the statutory waiver of immunity.

Lueck, 290 S.W.3d at 881; see e.g. Tex. Gov’t Code §§ 554.003(a) (authorizing suit

by public employee terminated in violation of Act), 554.0035 (waiving immunity

“to the extent of liability for the relief allowed under this chapter for a violation of

this chapter”).

A plea to the jurisdiction presents a question of law that is reviewed de novo

on appeal, Pope, 674 S.W.3d at 280–81; State v. Holland, 221 S.W.3d 639, 642

(Tex. 2007), mirroring the standard applied to a traditional motion for summary

judgment, City of San Antonio v. Maspero, 640 S.W.3d 523, 528 (Tex. 2022).

When a plea to the jurisdiction challenges the existence of alleged

jurisdictional facts, the court “must move beyond the pleadings and consider

APPELLANT OKONKWO’S MERITS BRIEF Page 22 of 40

Case No. 15-25-00061-CV; Okonkwo, et al. v. Heiliger, et al.

evidence when necessary to resolve the jurisdictional issues, even if the evidence

implicates both subject-matter jurisdiction and the merits of a claim.” Pope, 674

S.W.3d at 280–81; Alamo Heights Indep. Sch. Dist. v. Clark, 544 S.W.3d 755, 770-

71 (Tex. 2018).

A defendant that files a plea to the jurisdiction has the initial burden of

meeting the summary judgment standard of proof for its assertion that the court lacks

jurisdiction; if it does so, the plaintiff must then “show that a disputed material fact

exists regarding the jurisdictional issue.” Mission Consol. Indep. Sch. Dist. v.

Garcia, 372 S.W.3d 629, 635 (Tex. 2012). “In determining whether a material fact

issue exists, we must take as true all evidence favorable to the plaintiff, indulging

every reasonable inference and resolving any doubts in the plaintiff's favor. In doing

so…we cannot disregard evidence necessary to show context, and we cannot

disregard evidence and inferences unfavorable to the plaintiff if reasonable jurors

could not.” Alamo Heights Indep. Sch. Dist., 544 S.W.3d at 771.

If the plaintiff fails to raise a fact question on the jurisdictional issue or the

relevant evidence supporting the defendant’s assertion is undisputed, the plea to the

jurisdiction must be granted as a matter of law. Id.; Miranda, 133 S.W.3d at 228. “If

the evidence creates a fact question regarding a jurisdictional issue, then the trial

court should not grant the plea until the fact issue is resolved.” Slade v. Tex. S. Univ.

APPELLANT OKONKWO’S MERITS BRIEF Page 23 of 40

Case No. 15-25-00061-CV; Okonkwo, et al. v. Heiliger, et al.

Bd. of Regents, 232 S.W.3d 395, 397 (Tex. App.—Houston [1st Dist.] 2007, no pet.);

Miranda, 133 S.W.3d at 227-28.

To the extent ALJ Okonkwo’s plea to the jurisdiction challenges the

pleadings, the denial of her plea is reviewed de novo. Miranda, 133 S.W.3d at 226.

To the extent ALJ Okonkwo’s plea challenges jurisdictional facts, the denial of her

plea is reviewed for an abuse of discretion, taking as true all evidence favorable to

the nonmovant, indulging every reasonable inference, and resolving any doubts in

the nonmovant’s favor. Id. at 228-29.

This Court may consider whether the ruling was arbitrary, unreasonable, or

made without regard to guiding legal principles, and evidence must be viewed “in

the light most favorable to the trial court’s ruling, indulging every presumption in its

favor.” Feldman v. KPMG LLP, 438 S.W.3d 678, 686 (Tex. App.—Houston [1st

Dist.] 2014, no pet.) (citing Approach Res. I, L.P. v. Clayton, 360 S.W.3d 632, 639

(Tex. App.—El Paso 2012, no pet.)).

The second issue before this Court, i.e., the Court’s denial of ALJ Okonkwo’s

Motion to Dismiss Mr. Heiliger’s suit seeking a Temporary Injunction, is reviewed

for an abuse of discretion. This Court may consider whether the ruling was arbitrary,

unreasonable, or made without regard to guiding legal principles, and evidence must

be viewed “in the light most favorable to the trial court’s ruling, indulging every

presumption in its favor.” Feldman, 438 S.W.3d at 686.

APPELLANT OKONKWO’S MERITS BRIEF Page 24 of 40

Case No. 15-25-00061-CV; Okonkwo, et al. v. Heiliger, et al.

IV. ARGUMENT

The trial court abused its discretion by denying Ms. Okonkwo’s PTJ in her

official capacity.

Issue One is whether the trial court abused its discretion by denying ALJ

Okonkwo’s Plea to the Jurisdiction in her official capacity. ALJ Okonkwo’s PTJ

asserted that 1) she was entitled to sovereign immunity in her official capacity; 2)

Mr. Heiliger’s ultra vires claims were unfounded and moot; and 3) her subpoenas

did not deny Mr. Heiliger his constitutionally protected privilege rights.

Part of this issue concerns whether the trial court abused its discretion by

denying Ms. Okonkwo’s Motion to Dismiss based on her Plea to the Jurisdiction.

ALJ Okonkwo maintains that the answer is “Yes,” the trial court did abuse its

discretion by denying ALJ Okonkwo’s Plea to the Jurisdiction and her Motion to

Dismiss. Mr. Heiliger’s claims that ALJ Okonkwo acted ultra vires and denied Mr.

Heiliger’s constitutionally protected privilege rights are without merit for the reasons

argued below.

1. Mr. Heiliger’s ultra vires allegations (that Ms. Okonkwo issued a

subpoena in an unapproved form) do not state a valid ultra vires claim

and are in any event moot.

Ultra vires acts may overcome sovereign immunity. See Hall v. McRaven,

508 S.W.3d 232, 238 (Tex. 2017); City of El Paso v. Heinrich, 284 S.W.3d 366, 372

(Tex. 2009).

APPELLANT OKONKWO’S MERITS BRIEF Page 25 of 40

Case No. 15-25-00061-CV; Okonkwo, et al. v. Heiliger, et al.

Mr. Heiliger claimed that the first subpoena was ultra vires because it failed

to state whether it was for a hearing or a deposition. However, Mr. Heiliger’s claim

was incorrect. Issuance of the first subpoena was not ultra vires. While the subpoena

may not have been issued in the perfect format, it was nevertheless in the form used

by the Agency (C.R. 374, 399 & 410-414; S.C.R. Exh. A) and was not violative of

applicable law. Any irregularity was merely a matter of form relating to the omission

of a required statement of whether the subpoena was for a deposition or a hearing, a

matter of form in which perfection was not required.

The standard for ultra vires acts is not triggered by matters of form, does not

require perfection, and is instead focused on whether authority is present or lacking.

An action is ultra vires only when an agency issues an order completely outside its

statutory jurisdiction or in the absence of authority. Friends of Canyon Lake, Inc. v.

Guadalupe-Blanco River Auth., 96 S.W.3d 519 (Tex. App.—Austin 2002, pet.

denied); Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 101 n.11, 104

S.Ct. 900, 79 L.Ed.2d 67 (1984) (“[A] state officer may be said to act ultra vires

only when he acts ‘without any authority whatever.’”). Mistakes or errors in

procedure in the exercise of the agency’s authority do not render that action ultra

vires. Friends of Canyon Lake, Inc., 96 S.W.3d at 528; Coastal Habitat All. v. Pub.

Util. Comm’n of Tex., 294 S.W.3d 276, 285 (Tex. App.—Austin 2009, no pet.). It is

not ultra vires for an agency to incorrectly interpret the law. Coastal Habitat All.,

APPELLANT OKONKWO’S MERITS BRIEF Page 26 of 40

Case No. 15-25-00061-CV; Okonkwo, et al. v. Heiliger, et al.

294 S.W.3d at 285. Further, rulings in the administrative process necessarily involve

the exercise of statutory discretion by the agency officials, so the ultra vires

exception to the doctrine of sovereign immunity is not implicated. McRaven, 508

S.W.3d at 238.

ALJ Okonkwo had authority to issue the subpoenas. Tex. Lab. Code

subchapter D; 28 Tex. Admin. Code §§ 142.1 & 142.12. Any matters of form in the

issuance of the subpoenas under the ALJ’s authority were not substantive, and ALJ

Okonkwo’s acts were not ultra vires.

Moreover, Mr. Heiliger’s ultra vires claims were rendered moot when ALJ

Okonkwo withdrew and vacated the first subpoena and substituted a second

subpoena in its place that resolved the issues of form complained of by Mr. Heiliger.

Mr. Heiliger’s claimed issues of form were thereby resolved, and his claimed ultra

vires issues became moot and no longer an issue, confirming ALJ Okonkwo’s claim

in her Pleas to the Jurisdiction.

2. Ms. Okonkwo’s subpoenas did not, and do not, deprive Husband of

his constitutionally protected privilege rights.

Like ultra vires claims, violations of constitutionally protected rights may

overcome sovereign immunity. Mr. Heiliger claimed that the subpoenas violated his

constitutionally protected rights. But Mr. Heiliger was again incorrect. Mr.

Heiliger’s claim that Ms. Okonkwo’s issuance of the subpoenas violated his

constitutionally protected privilege rights is erroneous, without merit, and

APPELLANT OKONKWO’S MERITS BRIEF Page 27 of 40

Case No. 15-25-00061-CV; Okonkwo, et al. v. Heiliger, et al.

unsupportable because, under the Offensive Use Doctrine, the Patient Litigant

Exception in Texas Rules of Evidence 509(e)(4) and 510(d)(5), and Texas Health

and Safety Code sections 611.004(a)(1) and 611.006(a)(11), the subpoenaed mental

health records were not legally privileged and were fully disclosable.

First, the Offensive Use Doctrine prevents a party from using a privilege as a

sword instead of as a shield. The doctrine prohibits a party from claiming a benefit

in a proceeding but, at the same time, refusing under a claim of privilege to give

opposing parties access to information that is indicative of whether the party should

be granted or denied the benefit sought. Paxton v. City of Dall., 509 S.W.3d 247,

264 (Tex. 2017). See Ginsberg v. Fifth Ct. of Appeals, 686 S.W.2d 105, 108 (Tex.

1985). [Okonkwo App. E]. In Ginsberg, the Court approved the offensive use

privilege waiver and conditionally granted Ginsberg’s Writ of Mandamus, requiring

the Court of Appeals to withdraw its Order of Mandamus to permit the trial judge to

make an independent determination of the discoverability and admissibility of the

medical records pursuant to the offensive use ruling. See also Republic Ins. Co. v.

Davis, 856 S.W.2d 158 (Tex. 1993) (approving the doctrine as applied by Ginsberg

but finding that Republic was not seeking affirmative relief). Mr. Heiliger is seeking

death benefits from Fort Bend County in the contested case at the Texas Department

of Insurance - Division of Workers’ Compensation; therefore, Ms. Smith’s records

are subject to the requirements of the Offensive Use Doctrine.

APPELLANT OKONKWO’S MERITS BRIEF Page 28 of 40

Case No. 15-25-00061-CV; Okonkwo, et al. v. Heiliger, et al.

Next, the Patient Litigant Exception in Texas Rules of Evidence 509(e)(4) and

510(d)(5) provides that records of a person’s physical, mental, or emotional

condition, otherwise privileged, are exempt from privilege treatment when they are

relevant to the patient’s condition and any party has relied on the condition as part

of the party’s claim or defense. Tex. R. Evid. 509(e)(4) & 510(d)(5). The conditions

for imposing this exception in the rules have been met, here. Under the exceptions

in Rules 509(e)(4) and 510(d)(5), Ms. Smith’s records are not privileged.

Finally, the statutory provisions in Texas Health and Safety Code sections

611.004(a)(1) and 611.006(a)(11) (applied together) permit disclosure of patient

mental health records where the information has been ordered disclosed by subpoena

or order in an administrative or court proceeding. Tex. Health & Safety Code §§

611.004(a)(1) & 611.006(a)(11). These required conditions have been met: ALJ

Okonkwo ordered the information to be disclosed by subpoena in the administrative

proceeding now pending before TDI-DWC. (C.R. 341-349, 387-414 & 563-67;

S.C.R. Exh. A). Because these sections apply, Ms. Smith’s records are subject to

disclosure pursuant to the subpoena in the contested case proceeding at the Division.

3. Heiliger’s arguments against Issue One are baseless.

Mr. Heiliger’s ultra vires claims are moot. Because Ms. Smith’s records are

covered by the Offensive Use Doctrine, the Patient Litigant Exception in Texas

Rules of Evidence 509(e)(4) and 510(d)(5), and the Texas Health and Safety Code

APPELLANT OKONKWO’S MERITS BRIEF Page 29 of 40

Case No. 15-25-00061-CV; Okonkwo, et al. v. Heiliger, et al.

sections 611.004(a)(1) and 611.006(a)(11), they are not privileged and are lawfully

subject to disclosure. Accordingly, ALJ Okonkwo’s subpoenas do not deprive Mr.

Heiliger of any constitutionally protected privilege rights. Thus, Mr. Heiliger’s ultra

vires claims and constitutional privilege claims are entirely resolved, and no issues

are left that are not covered by sovereign immunity protection. Accordingly, the

trial court should have granted ALJ Okonkwo’s Pleas to the Jurisdiction because

ALJ Okonkwo was protected by sovereign immunity. The trial court erred by failing

to do so and erred by failing to grant Ms. Okonkwo’s motion to dismiss for the same

reason.

The trial court’s ruling failed to correctly consider and apply the critical

applicable law.

Issue Two asks whether the trial court abused its discretion by granting

injunctive relief prohibiting Greater Houston and Dr. Marcellus from disclosing

Wife’s mental health records and by refusing to correctly apply the Offensive Use

Doctrine, the Patient Litigant Exception in Texas Rules of Evidence 509(e)(4) and

510(d)(5), and the statutory provisions regarding disclosure of mental health records

in sections 611.004(a)(1) and 611.006(a)(11) of the Texas Health and Safety Code,

mentioned above.

Again, ALJ Okonkwo avers that the answer is “Yes,” the trial court abused its

discretion.

APPELLANT OKONKWO’S MERITS BRIEF Page 30 of 40

Case No. 15-25-00061-CV; Okonkwo, et al. v. Heiliger, et al.

The trial court should have denied Mr. Heiliger’s requested injunctive relief

because his refusal to permit disclosure of his deceased Wife’s mental health records

in the contested case hearing at TDI-DWC while at the same time seeking death

benefits for his Wife’s death violates the Offensive Use Doctrine, the Patient Litigant

Exception of Texas Rules of Evidence 509(e)(4) and 510(d)(5), and Texas Health

and Safety Code sections 611.004(a)(1) and 611.006(a)(11) (applied together). With

the proper application of these requirements, Heiliger could not establish a cause of

action, could not prevail on the merits, and would not be irreparably harmed.

By granting Mr. Heiliger’s requested injunctive relief, the trial court

erroneously failed to apply these governing provisions. The trial court effectively

forecloses Fort Bend’s and TDI-DWC’s ability to consider facts that are central and

consequential to Husband’s eligibility for TDI-DWC benefits, and it prevents ALJ

Okonkwo from having knowledge of central, consequential facts in deciding the case

and drafting the proposal for decision. The trial court denying TDI-DWC access to

records it needs to correctly determine Mr. Heiliger’s eligibility for the death

benefits he seeks is a clear abuse of discretion.

1. The trial court failed to give effect to the Offensive Use Doctrine.

As noted above, the Offensive Use Doctrine prevents a party from using a

privilege as a sword instead of as a shield. The doctrine prohibits a party from

claiming a benefit in a proceeding but, at the same time, refusing under a claim of

APPELLANT OKONKWO’S MERITS BRIEF Page 31 of 40

Case No. 15-25-00061-CV; Okonkwo, et al. v. Heiliger, et al.

privilege to give opposing parties access to information that is indicative of whether

the party should be granted or denied the benefit sought. See Ginsberg, 686 S.W.2d

at 108; Davis, 856 S.W.2d; City of Dall., 509 S.W.3d at 264. Mr. Heiliger is seeking

death benefits from Fort Bend County in the contested case at TDI-DWC. Ms.

Smith’s mental health records are not only relevant to whether Mr. Heiliger should

be granted the benefits he seeks, they are consequential, determinative, and

dispositive, and cannot be obtained from any other source. Mr. Heiliger’s refusal to

produce the records violates the Offensive Use Doctrine. The trial court’s ruling

granting the temporary injunction also violates the Offensive Use Doctrine.

2. The trial court’s ruling failed to give effect to the Patient Litigant

Exception in Texas Rules of Evidence 509(e)(4) and 510(d)(5).

As noted above, the Patient Litigant Exception in Texas Rules of Evidence

509(e)(4) and 510(d)(5) provides that records of a person’s physical, mental, or

emotional condition, otherwise privileged, are exempt from privilege treatment

when they are relevant to the patient’s condition and any party has relied on the

condition as part of the party’s claim or defense. Tex. R. Evid. 509(e)(4) &

510(d)(5). The conditions imposing the exception in the rules have been met. Ms.

Smith’s mental health and medical conditions are part of both Mr. Heiliger’s and

Fort Bend County’s claims and defenses. Mr. Heiliger claims Ms. Smith’s death

was caused by work stress; Fort Bend believes the requested records will show that

APPELLANT OKONKWO’S MERITS BRIEF Page 32 of 40

Case No. 15-25-00061-CV; Okonkwo, et al. v. Heiliger, et al.

her death was caused by her use or potential abuse of amphetamines, which

exacerbated her hypertension.

The trial court’s ruling granting the temporary injunction violates the Patient

Litigant Exception in Texas Rules of Evidence 509(e)(4) and 510(d)(5).

3. The trial court’s ruling failed to give effect to the provisions of Texas

Health and Safety Code sections 611.004(a)(1) and 611.006(a)(11).

As noted above, Texas Health and Safety Code sections 611.004(a)(1) and

611.006(a)(11) (applied together) permit disclosure of patient mental health records

where the information has been ordered disclosed by subpoena or order in an

administrative or court proceeding. Tex. Health & Safety Code §§ 611.004(a)(1) &

611.006(a)(11). These conditions are present here: the information has been ordered

disclosed by subpoena in an administrative proceeding now before TDI-DWC.

(C.R. 341-349, 387-414 & 563-67; S.C.R. Exh. A). The trial court’s ruling failed to

give effect to provisions of Texas Health and Safety Code sections 611.004(a)(1)

and 611.006(a)(11). Tex. Health & Safety Code §§ 611.004(a)(1) & 611.006(a)(11).

4. Mr. Heiliger’s claim that the records have not been shown to be

relevant and determinative fails.

Mr. Heiliger claims ALJ Okonkwo and Fort Bend County have not

demonstrated that the mental health data requested is determinative of issues related

to Mr. Heiliger’s request for death benefits at the Division. He also claims Fort

Bend’s request and the subpoena are part of a fishing expedition. Mr. Heiliger is

APPELLANT OKONKWO’S MERITS BRIEF Page 33 of 40

Case No. 15-25-00061-CV; Okonkwo, et al. v. Heiliger, et al.

incorrect. As explained above in subsections B. 1 and B. 2, the information

requested by the subpoena relates to the cause of or factors contributing to Ms.

Smith’s death, which forms the basis of Mr. Heiliger’s claim for benefits. The

information contained in the health records created or maintained by Greater

Houston and Dr. Marcellus about Ms. Smith’s condition address the existence and

severity of work-related stress, if such doctors made such a finding, and would

address the type and amount of medication she used, issues that go to whether her

death was caused or contributed to by work-related stress or by use or abuse of

medication. These facts will determine whether Mr. Heiliger is eligible to recover

benefits.

ALJ Okonkwo and Fort Bend County must be allowed access the data. The

documents, by definition, are covered by the Offensive Use Doctrine, the Patient

Litigant Exception, and/or chapter 611 of the Texas Health and Safety Code

(statutory disclosure provisions). The ALJ and Fort Bend need the documents to

show Mr. Heiliger’s eligibility and the amount of recovery, if any, correctly allowed

under his claim. The consistency of the language of the subpoena with the statutory

criteria for recovery demonstrates that the information sought is determinative and

that the subpoena is not a fishing expedition. The trial court’s ruling granting Mr.

Heiliger’s requested injunctive protection runs counter to this demonstration. It

denies ALJ Okonkwo and Fort Bend County required access to the documents, in

APPELLANT OKONKWO’S MERITS BRIEF Page 34 of 40

Case No. 15-25-00061-CV; Okonkwo, et al. v. Heiliger, et al.

spite of the requirements of the Offensive Use Doctrine, the Patient Litigant

Exception, and the provisions of Texas Health and Safety Code Sections

611.004(a)(1) and 611.006(a)(11), which expressly authorize the release of health

records in a case such as this one.

V. CONCLUSION

The trial court erred by a) denying ALJ Okonkwo’s Plea to the Jurisdiction,

and b) granting Mr. Heiliger’s requested injunctive relief prohibiting Greater

Houston and Dr. Marcellus from disclosing Wife’s mental health records. The Court

erred by refusing to determine that under the correct application of the Offensive

Use Doctrine, the Patient Litigation Exception, and the statutory provisions

regarding disclosure of mental health records in sections 611.004(a)(1) and

611.006(a)(11) of the Texas Health and Safety Code, Petitioner Heiliger could not

establish a cause of action, was not likely to prevail on the merits, and would not be

irreparably harmed. For the aforementioned reasons, Appellees’ claims fail to

support a jurisdictional basis for overcoming sovereign immunity. Properly applied,

the Offensive Use Doctrine, the Patient Litigant Exception in Texas Rules of

Evidence 509(e)(4) and 510(d)(5), and Texas Health and Safety Code sections

611.004(a)(1) and 611.006(a)(11) (applied together) indicate Ms. Smith’s records

are not properly classified as privileged and should not be protected by injunctive

orders.

APPELLANT OKONKWO’S MERITS BRIEF Page 35 of 40

Case No. 15-25-00061-CV; Okonkwo, et al. v. Heiliger, et al.

PRAYER

WHEREFORE, PREMISES CONSIDERED, Appellant, Francisca

Okonkwo, Administrative Law Judge of the Texas Department of Insurance -

Division of Workers’ Compensation, in her official capacity, requests that this Court

reverse the trial court’s orders granting injunctive relief, grant ALJ Okonkwo’s Pleas

to the Jurisdiction, grant ALJ Okonkwo’s Motion to Dismiss, and grant such other

and further relief to which ALJ Okonkwo may be entitled.

Respectfully submitted,

KEN PAXTON

Attorney General of Texas

BRENT WEBSTER

First Assistant Attorney General

RALPH MOLINA

Deputy First Assistant Attorney General

AUSTIN KINGHORN

Deputy Attorney General for Civil

Litigation

ERNEST C. GARCIA

Chief, Administrative Law Division

APPELLANT OKONKWO’S MERITS BRIEF Page 36 of 40

Case No. 15-25-00061-CV; Okonkwo, et al. v. Heiliger, et al.

/s/ James Z. Brazell

JAMES Z. BRAZELL

State Bar No. 02930100

Assistant Attorney General

SHERLYN HARPER

State Bar No. 24093176

Assistant Attorney General

Administrative Law Division

OFFICE OF THE ATTORNEY GENERAL OF

TEXAS

P.O. Box 12548, Capitol Station

Austin, Texas 78711-2548

Telephone: (512) 475-3204

Telephone: (713) 225-8913

Facsimile: (512) 320-0167

James.Brazell@oag.texas.gov

Sherlyn.Harper@oag.texas.gov

ATTORNEYS FOR DEFENDANT, FRANCISCA

OKONKWO, ADMINISTRATIVE LAW JUDGE,

TEXAS DEPARTMENT OF INSURANCE -

DIVISION OF WORKERS’ COMPENSATION, IN

HER OFFICIAL CAPACITY

APPELLANT OKONKWO’S MERITS BRIEF Page 37 of 40

Case No. 15-25-00061-CV; Okonkwo, et al. v. Heiliger, et al.

CERTIFICATE OF COMPLIANCE

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

Procedure 9.4(i)(3) and the word count of this document is 4,778 including the

portions that would not otherwise be exempted by Texas Rule of Appellate

Procedure 9.4(i)(1). The word processing software used to prepare this filing and

calculate the word count of the document is Microsoft Word for Office 365.

/s/ James Z. Brazell

JAMES Z. BRAZELL

Assistant Attorney General

APPELLANT OKONKWO’S MERITS BRIEF Page 38 of 40

Case No. 15-25-00061-CV; Okonkwo, et al. v. Heiliger, et al.

CERTIFICATE OF SERVICE

I hereby certify that on June 13, 2025, a true and correct copy of the foregoing

document has been served via e-service and/or email on the following:

DEAN G. PAPPAS RUSSELL L. MORRIS

State Bar No. 15454375 State Bar No. 24099150

MARY M. MARKANTONIS ANDREW W. BRUCE

State Bar No. 12986800 State Bar No. 24113627

LISA M. TEACHEY PABLO A. FRANCO

State Bar No. 24056416 State Bar No. 24121625

MARILYN J. ALLEN MCBRYDE FRANCO, PLLC

State Bar No. 24025225 11000 Richmond Avenue,

DEAN G. PAPPAS LAW FIRM, PLLC Suite 350

8588 Katy Freeway, Suite 100 Houston, Texas 77042

Houston, Texas 77024 Telephone: (713) 223-7699

Telephone: (713) 914-6200 Facsimile: (512) 691-9072

Facsimile: (713) 914-6201 Serv.russell@mf-txlaw.com

dpappas@dgplawfirm.com Serv.andrew@mf-txlaw.com

mmarkantonis@dgplawfirm.com Serv.pablo@mf-txlaw.com

lteachey@dgplawfirm.com

mallen@dgplawfirm.com ATTORNEYS FOR APPELLEE

HEILIGER

ATTORNEYS FOR APPELLANT, FORT

BEND COUNTY

LAVERNE CHANG

State Bar No. 00783819 /s/ James Z. Brazell

CARDWELL & CHANG, PLLC JAMES Z. BRAZELL

511 Lovett Blvd. Assistant Attorney General

Houston, Texas 77006

Telephone: (713) 222-6025

Chang@cardwellchang.com

ATTORNEYS FOR APPELLEE GREATER

HOUSTON PSYCHIATRIC ASSOCIATES,

PLLC

APPELLANT OKONKWO’S MERITS BRIEF Page 39 of 40

Case No. 15-25-00061-CV; Okonkwo, et al. v. Heiliger, et al.

INDEX OF APPENDICES

Okonkwo App. A….April 2, 2025 Order Denying in Part and Granting in Part

Respondent Okonkwo’s Plea to the Jurisdiction and Motion

to Dismiss

Okonkwo App. B….April 2, 2025 Order Granting Temporary Injunction and Setting

Trial on Merits

Okonkwo App. C….December 5, 2024 Defendant Francisca Okonkwo,

Administrative Law Judge, Texas Department of Insurance,

Division of Workers’ Compensation’s First Amended Plea to

the Jurisdiction

Okonkwo App. D….March 19, 2025 Respondent, Francisca Okonkwo,

Administrative Law Judge’s First Supplemental Plea to the

Jurisdiction, Response to Petitioner’s Fourth Amended

Verified Original Petition for Declaratory Judgment,

Application for Writ of Mandamus, Temporary Restraining

Order, Temporary Injunction, and Permanent Injunction,

Response to Petitioner’s Application for Second Temporary

Restraining Order and Request for Hearing on Petitioner’s

Application for Temporary Injunction, Motion to Dismiss,

and General Denial

Okonkwo App. E….Ginsberg v. Fifth Court of Appeals, 686 S.W.2d 105 (Tex.

1985)

Okonkwo App. F…. Texas Rule of Evidence 509

Okonkwo App. G….Texas Rule of Evidence 510

Okonkwo App. H….Texas Health and Safety Code section 611.004

Okonkwo App. I…...Texas Health and Safety Code section 611.006

APPELLANT OKONKWO’S MERITS BRIEF Page 40 of 40

Case No. 15-25-00061-CV; Okonkwo, et al. v. Heiliger, et al.

Appendix A

Un

of

fic

ial

C

op

yO

ffic

e

of

M

ar

ily

n

Bu

rg

es

sD

ist

ric

tC

ler

k

Pgs-2

PJURZ

DISMY

Un

of

fic

ial

C

op

yO

ffic

e

of

M

ar

ily

n

Bu

rg

es

sD

ist

ric

tC

ler

k

Appendix B

Un

of

fic

ial

C

op

yO

ffic

e

of

M

ar

ily

n

Bu

rg

es

sD

ist

ric

tC

ler

k

Pgs-5

TINJX

TRILX

Un

of

fic

ial

C

op

yO

ffic

e

of

M

ar

ily

n

Bu

rg

es

sD

ist

ric

tC

ler

k

Un

of

fic

ial

C

op

yO

ffic

e

of

M

ar

ily

n

Bu

rg

es

sD

ist

ric

tC

ler

k

Un

of

fic

ial

C

op

yO

ffic

e

of

M

ar

ily

n

Bu

rg

es

sD

ist

ric

tC

ler

k

Un

of

fic

ial

C

op

yO

ffic

e

of

M

ar

ily

n

Bu

rg

es

sD

ist

ric

tC

ler

k

Appendix C

12/5/2024 8:01 AM

Marilyn Burgess - District Clerk Harris County

Envelope No. 94962671

By: Patricia Gonzalez

Filed: 12/5/2024 8:01 AM

CAUSE NO. 2024-78536

IN RE JOSHUA DAVID HEILIGER, § IN THE DISTRICT COURT OF

INDIVIDUALLY, AND ON BEHALF §

OF THE ESTATE OF LAUREN §

BRITTANE SMITH, DECEASED, §

AND ON BEHALF OF DEATH §

BENEFITS BENEFICIARIES §

JOSHUA DAVID HEILIGER AND §

EMMA DESTINY HEILIGER, §

Petitioners, §

§

v. §

§

TEXAS DEPARTMENT OF § HARRIS COUNTY, TEXAS

INSURANCE, DIVISION OF §

WORKERS’ COMPENSATION; §

JEFF NELSON, COMMISSIONER, §

TEXAS DEPARTMENT OF §

INSURANCE, DIVISION OF §

WORKERS’ COMPENSATION, IN §

HIS OFFICIAL CAPACITY; §

FRANCISCA OKONKWO, §

ADMINISTRATIVE LAW JUDGE, §

TEXAS DEPARTMENT OF §

INSURANCE, DIVISION OF §

WORKERS’ COMPENSATION, IN §

HER OFFICIAL AND INDIVIDUAL §

CAPACITIES, §

Respondents. § 11th JUDICIAL DISTRICT

DEFENDANT FRANCISCA OKONKWO, ADMINISTRATIVE LAW JUDGE, TEXAS

DEPARTMENT OF INSURANCE, DIVISION OF WORKERS’ COMPENSATION’S

FIRST AMENDED PLEA TO THE JURISDICTION

TO THE HONORABLE JUDGE OF THE COURT:

COMES NOW Respondent Francisca Okonkwo (“Ms. Okonkwo”), Administrative Law

Judge, Texas Department of Insurance, Division of Workers’ Compensation (“TDI”), in her

official and individual capacities by and through the Office of the Attorney General of Texas under

Chapter 104, Texas Civil Practice and Remedies Code, and files this, her First Amended Plea to

the Jurisdiction in which she joins in the First Amended Plea to the Jurisdiction filed by TDI on

December 4, 2024, in this matter, challenging the jurisdiction of the Court to enter any orders in

the suit filed by Joshua David Heiliger (“Petitioner”). In support of her claims, requests, and

joinder in TDI’s Initial and First Amended Pleas to the Jurisdiction, and of her individual Initial

and First Amended Pleas to the Jurisdiction, Ms. Okonkwo would respectfully show the Court the

following:

INTRODUCTION 1

In the indicated Parts 1 through 4 of this filing, Ms. Okonkwo:

1) lists and submits answers to the list of questions posed by the Court at the hearing

on December 3, 2024;

2) submits new arguments responsive to the new claims submitted by Petitioner

Heiliger in his Second Amended Verified Original Petition, filed November 27,

2024, and in his Third Amended Verified Original Petition, filed December 4, 2024,

that relate to TDI’s and Ms. Okonkwo’s Pleas to the Jurisdiction;

3) as she did in her initial Plea to the Jurisdiction, joins in TDI’s First Amended Plea

to the Jurisdiction and TDI’s prayer for relief in its First Amended Plea and also

submits her own claims and prayer in her individual capacity; and

4) in Part 4: as she did in her initial Plea to the Jurisdiction, in addition to joining in

TDI’s Plea, also again submits her own Plea to the Jurisdiction in her individual

capacity.

Ms. Okonkwo’s responses are initially directed at the issues relating to hers and TDI’s

claims of Sovereign Immunity, Official Immunity, Judicial and Quasi-Judicial Immunity, and

Statutory Immunity and other defenses in their Pleas to the Jurisdiction that may be considered

first in the order of issues listed by the Court to be considered. But Ms. Okonkwo’s responses

may also be directed at the substantive and procedural issues listed by the Court, to the extent those

are considered at the hearing.

Thus, as noted above, in Part 1, Ms. Okonkwo responds to the Court’s questions. In Part

2, Ms. Okonkwo addresses the substantive claims in Mr. Heiliger’s Verified Petitions. In Parts 3

DEFENDANT OKONKWO’S FIRST AMENDED PLEA TO THE JURISDICTION

Cause No. 2024-78536; In re Heiliger, et al. v. TDI-DWC, et al. 2

and 4, Ms. Okonkwo claims that she, like TDI, is protected by sovereign immunity in her official

capacity and is protected by Official Immunity, Judicial Immunity, Quasi-Judicial Immunity, and

Statutory Immunity in her individual capacity. Ms. Okonkwo maintains that a) because Mr.

Heiliger has violated the Offensive Use doctrine, Ms. Smith’s mental health data is not privileged;

b) under Texas Rules of Evidence 509(d)(4) and 510(e)(5), Ms. Smith’s mental health data is

exempt from treatment as privileged; and c) under statutory disclosure requirements in Texas

Health and Safety Code sections 611.004(a)1) and 611.006(a)(11) Ms. Smith’s mental health data

is subject to disclosure. Based on these conclusions, Ms. Okonkwo asserts that Ms. Smith’s mental

health records are subject to production, that Ms. Smith’s records are not subject to the

constitutional protection of privilege Mr. Heiliger claims in his pleadings and, that as a

consequence, TDI, its Commissioner, and Ms. Okonkwo all remain protected by sovereign

immunity.

PART 1

RESPONSES TO COURT’S DECEMBER 3, 2024, QUESTIONS

Ms. Okonkwo provides the following responses to the questions posed by the Court at the

Hearing on December 3, 2024:

1. Q: In Which Branch of Government is the ALJ? A: In the executive branch.

Ms. Okonkwo is an employee of the Department of Insurance, which, as a creature of

the Legislature, and whose commissioner is appointed by the governor, is part of the

executive. Even so, she is entitled to “judicial” and “quasi-judicial” immunity because

she is a quasi-judicial officer performing functions essentially similar to those of judges

in a setting similar to that of a court. Sledd v. Garrett, 123 S.W.3d 592, 594 (Tex.

App.—Houston [14th Dist.] 2003, no pet.) (Judicial immunity applies to quasi-judicial

DEFENDANT OKONKWO’S FIRST AMENDED PLEA TO THE JURISDICTION

Cause No. 2024-78536; In re Heiliger, et al. v. TDI-DWC, et al. 3

officials who, irrespective of their title, perform functions essentially similar to those

of judges, in a setting similar to that of a court); Harlan v. Texas Dep't of Ins., No. 01-

14-00479-CV, 2016 WL 3476914, at *2 (Tex. App.—Houston [1st Dist.] June 23, 2016,

no pet.) (judicial immunity applies to administrative law judges and similar quasi-

judicial officers). Please see the argument and authorities on Page 9 of Ms. Okonkwo’s

initial Plea to the Jurisdiction, filed November 26, 2024;

2. Q: Is Mandamus or Temporary Injunction appropriate? A: Mandamus is not

available unless the Court finds that the agency or the ALJ in her official capacity

engaged in a clear abuse of discretion. Mandamus is available to correct rulings of

lower courts and the ministerial acts of public officials. It is not available to correct

discretionary acts of public officials unless those are a clear abuse of discretion. Here,

if applied, mandamus could apply to both issues relating to the subpoena: it would be

ministerial in regard to the form (and use of and dates for “deposition” or “hearing”)

but discretionary regarding whether to issue it at all. Here Petitioner claims both;

3. Q: What right of interim appeal of the ALJ’s ruling exists within the agency?

What is the effect of such an appeal? A: The ALJ’s ruling on a subpoena or other

discovery request may be appealed to the Appeals Panel at the agency once the ALJ

has issued a written ruling on the entire case, titled “Decision and Order”. Tex. Lab.

Code §§ 410.168 and 410.203. This right of appeal is an administrative remedy that

provides a complete and adequate remedy at law and was required for Mr. Heiliger to

exhaust administrative remedies. Because Mr. Heiliger failed to appeal, he has not

exhausted administrative remedies and lacks standing to seek injunctive relief. And,

DEFENDANT OKONKWO’S FIRST AMENDED PLEA TO THE JURISDICTION

Cause No. 2024-78536; In re Heiliger, et al. v. TDI-DWC, et al. 4

because he has not exhausted administrative remedies by failing to appeal to the Appeal

Board, the agency is protected by sovereign immunity and the Court lacks jurisdiction.

4. Q: Is there a party missing? A: Fort Bend County is currently participating as a

Real Party in Interest but has not filed a request to intervene at the agency nor in the

Court and is not classified as a Defendant. Ms. Okonkwo leaves it to the County and

Mr. Heiliger to address the arguments on this issue.

5. Q: Is the ALJ entitled to “Judicial” Immunity if she is not a member of the

judicial branch but a member of the executive branch? A: Please see the answer

to Question 1, above;

6. Q: Discuss necessity of discovery on requested injunctive relief? A: While Ms.

Okonkwo asserts and does not waive her claim that the Court lacks jurisdiction, she

acknowledges that if the Court proceeds most of the factual issues are already evident

but that there may be some material issues that may properly be inquired into in

discovery relating to any request for injunctive relief. However, the discovery should

be very strictly limited both in scale and scope;

7. Q: Is there a “Missing Party” that should be required to intervene? A: (see

response to Q-4 above.

PART 2

I. RESPONSES TO RELEVANT NEW CLAIMS IN HEILIGER SECOND AND

THIRD VERIFIED PETITIONS

Without waiving her claims that in her official capacity she is protected by sovereign

immunity and that in her individual capacity she is protected by Official Immunity, Judicial

Immunity, Quasi-Judicial Immunity, and Statutory Immunity under Tex. Ins. Code §§ 36.001 and

36.005 and Tex. Labor Code §402.123 (see Parts 3 and 4 below), Ms. Okonkwo submits the

DEFENDANT OKONKWO’S FIRST AMENDED PLEA TO THE JURISDICTION

Cause No. 2024-78536; In re Heiliger, et al. v. TDI-DWC, et al. 5

following claims and arguments in response to Mr. Heiliger’s Second and Third Amended Verified

Original Petitions, filed on November 27 and December 4, 2024. (Mr. Heiliger’s Third Petition

adds claims relating to mandamus in Paragraphs 12, 60 through 66, and Prayer c, but otherwise

appears to be the same filing as his Second Petition. Ms. Okonkwo’s responses will use the

paragraph headings and paragraph numbering used by Mr. Heiliger in his Third Petition filing):

A. Okonkwo Response: Introduction

As confirmed by Par. 10 on Page 4 of Heiliger’s Third Amended Verified Petition, for all

the great volume and verbiage, Mr. Heiliger’s Petitions, including the latest Third Amended

Verified Petition, are reducible to two main claims:

1) Lauren Smith’s (deceased) mental health records held in the offices of Doctor John

Marcellus, M.D., her psychiatrist, are privileged and may not be produced and related

claims; and

2) Ms. Okonkwo issuance of a subpoena that did not expressly state a) that it related to a

deposition or hearing; and b) a date for the data to be delivered at a deposition or

hearing was ultra vires;

Mr. Heiliger is wrong on both counts, as discussed in the next two sections. First, under

Ms. Okonkwo’s three-pronged claim in the context of this case, Ms. Smith’s mental health records

are not privileged and because they are not privileged, Mr. Heiliger’s claims that TDI and Ms.

Okonkwo lack sovereign immunity protection are without merit. Moreover, Mr. Heiliger’s

claims that the ALJ’s order, the applicable statutes, and the applicable rules are unconstitutional

and deny him constitutional protection and privilege rights all fail. Finally, Mr. Heiliger’s claim

that Ms. Okonkwo’s issuance of the subpoena was ultra vires is also without merit and

unsupportable.

B. Ms. Okonkwo’s Response on Privilege Claims

Ms. Okonkwo asserts a three-pronged claim on Petitioner’s privilege claims, as follows:

DEFENDANT OKONKWO’S FIRST AMENDED PLEA TO THE JURISDICTION

Cause No. 2024-78536; In re Heiliger, et al. v. TDI-DWC, et al. 6

Prong 1. First, the information is not privileged under the offensive use doctrine.

Because under the offensive use doctrine, by seeking an affirmative benefit in seeking death

benefits from Ms. Smith’s death, Petitioner has waived the privilege. And, by pursuing

mandamus and injunctive relief to protect records he claims to be privileged, Petitioner is violating

the offensive use doctrine. He is using the claimed privilege as a sword rather than as a shield by

seeking affirmative relief in the form of substantial sums of death benefits from Fort Bend County

while at the same time denying the County access to evidence that is material, relevant, and

probative of the very question of whether Petitioner is entitled to the benefits at all or whether

those benefits should be denied.

The offensive use doctrine is well recognized in Texas. See e.g., Ginsberg v. Fifth Ct. of

Appeals, 686 S.W.2d 105, 107 (Tex. 1985), Westheimer v. Tennant, 831 S.W.2d 880, 883 (Tex.

App. 1992). In Ginsberg, Ms. Gaynier asserted a claim that information sought was protected by

the psychotherapist-patient privilege under Texas Rule of Evidence 510. The court recognized

that the justification for the privilege lay in the policy of encouraging the full communication

necessary for effective treatment of a patient by a psychotherapist and that the protection against

disclosure of confidences is primarily erected to protect the patient against an invasion of his

privacy. Ex Parte Abell, 613 S.W.2d 255 (Tex. 1981).

However, the Court noted that the claimant occupied a different position in relation to the

privilege she attempted to assert, that she had invoked the jurisdiction of the courts in search of

affirmative relief against Ginsberg; yet she would attempt, on the basis of privilege, to deny

Ginsberg the benefit of evidence which would materially weaken or defeat her claims against him.

This was an offensive, rather than defensive, use of the privilege, and it lay outside the intended

DEFENDANT OKONKWO’S FIRST AMENDED PLEA TO THE JURISDICTION

Cause No. 2024-78536; In re Heiliger, et al. v. TDI-DWC, et al. 7

scope of Tex. R. Evid. 510 and its predecessor. Ginsberg v. Fifth Ct. of Appeals, 686 S.W.2d 105,

107 (Tex. 1985)

The issue here is the same. Here, as in Ginsburg (and as discussed in Westheimer) there

has been a prohibited offensive use of the privilege where the privilege was used as a sword rather

than as a shield. Here, because Petitioner is seeking affirmative relief (Ms. Smith’s death benefits)

his claim that the information is privileged violates fundamental fairness and the offensive use

doctrine. To the extent he seeks affirmative relief (and his application at the agency seeks

potentially substantial death benefits) Petitioner’s claim is a request for affirmative relief of a

substantial magnitude. By his application at the agency, Mr. Heiliger has sought affirmative

relief. Yet, by seeking mandamus and injunctive relief to prevent access to the records he claims

are privileged, he has actively chosen to prevent the County from access to records that may show

that the benefits must be denied. If he pursues mandamus or injunctive relief, which he has in his

Second and Third Amended Verified Petitions, the privilege is subject to waiver and his claim that

sovereign immunity is unavailing because the agency’s rules and statutes are unconstitutional must

fall.

Prong 2. In the next prong of Ms. Okonkwo’s three-pronged claim, Ms. Okonkwo asserts

that under Tex. R. Evid 509(d)(4) and 510(e)(5), Ms. Smith’s mental health records are not

privileged, but are exempt under the Rules of Evidence from treatment as privileged documents.

The Texas Rules of Evidence were placed at issue by Petitioner. Mr. Heiliger raised the

issue of the treatment of privileged information in Paragraphs 53 through 55 of his Second and 54

through 56 of his Third Amended Verified Petition. In those paragraphs, Mr. Heiliger addressed

the Texas Rules of Evidence and Supreme Court rulings on privilege and the confidentiality of

mental health records. Therefore, the impact of the Rules of Evidence have is an open issue.

DEFENDANT OKONKWO’S FIRST AMENDED PLEA TO THE JURISDICTION

Cause No. 2024-78536; In re Heiliger, et al. v. TDI-DWC, et al. 8

Tex. R. Evid 509(d)(4) provides that medical records are exempt from privilege if they are

part of the parties’ claims or defenses in a proceeding. Tex. R. Evid. 510(e)(5) provides that that

mental health records are exempt from privilege if they are part of the parties’ claims or defenses

in a proceeding. Because Ms. Smith’s mental health records are part of the parties’ claims and

defenses, as reflected in Mr. Heiliger’s Second and Third Amended Verified Petitions, the material

is not privileged and his claim that he is being denied his privilege has no foundation.

Paragraphs 25, 26, 27, and 28 of Petitioner’s Second Petition (Pars. 26, 27, 28, and 29 of

his Third Petition) show that Ms. Smith’s mental health conditions of ADHD and PTSD are the

main issue litigated in the case. Moreover, there is no other way for the County to gain access to

these highly probative records. For the County, Ms. Smith’s Psychiatrist’s basis for prescribing

Adderall and Vyvanse are facts related to their defense against Mr. Heiliger’s application and for

their claim in the contested case hearing that Ms. Smith’s death may have been caused in part by

these medications. For Mr. Heiliger, Ms. Smith’s Psychiatrist’s prescription of these medications

is the basis of his defense against the County’s claim that the death benefits should be denied and

is the basis of his claim contesting the County’s claim that the medication was a factor. Thus, the

records contain facts that are part of the County’s defense and part of Mr. Heiliger’s claim that the

County’s defense is without merit. The fact that Mr. Heiliger may not have raised any claim

regarding the records initially in his application for death benefits does not mean the records are

not a part of his claims or defenses. Because the records are the central issue in the fight between

Mr. Heiliger and the County, they are clearly part of the parties’ claims and defenses, invoking

Rules 509(d)(4) and 510(e)(5).

Because Ms. Smith’s mental health records are part of both parties’ claims or defenses,

under TRE 509(d)(4) and 510 (e)(5) the records are not privileged. And, because the records are

DEFENDANT OKONKWO’S FIRST AMENDED PLEA TO THE JURISDICTION

Cause No. 2024-78536; In re Heiliger, et al. v. TDI-DWC, et al. 9

not privileged, the ALJ’s ruling seeking them in the subpoena does not violate any privilege.

Moreover, Petitioner’s constitutional rights have not been abridged and the agency’s rules and the

various statutes at issue are not unconstitutional and do not deprive Petitioner of the right to due

process of law, do not fail to provide an avenue for assertion or claim of privilege, and do not fail

to provide a basis for redress.

Prong 3. In the final prong of Ms. Okonkwo’s three-pronged claim, Ms. Okonkwo asserts

that Ms. Smith’s mental health records are not privileged as a result of Health and Safety Code

611.004(a)(1) and 611.006(a)(11), acting together. These statutory provisions expressly allow

disclosure, thereby resolving any claim of privilege against protection.

Section 611.004(a)(1) authorizes disclosure (thus removing privilege) to a governmental

agency if the disclosure is required or authorized by law. Next, Section 611.006(a)(11) makes

the information disclosable if in an administrative or judicial procedure the court or agency has

issued an order or a subpoena. Thus, Section 611.006(a)(11), as well as the other provisions

discussed herein, authorize disclosure by law.

Much of what Mr. Heiliger claims in his Second and Third Amended Verified Petitions

relates to claims that the ALJ’s decision, the relevant statutes, and the relevant rules deny him

protection of his privilege rights, thereby denying him constitutional protection, providing a waiver

of sovereign immunity. However, because whether by waiver of his privilege by offensive use,

by established law in Rules 509 and 510 in the Texas Rules of Evidence, or by statutory fiat by

Legislative enactment in Health and Safety Code chapter 611, Ms. Smith’s mental health records

are not privileged (or have lost their privilege), and Mr. Heiliger has no privilege rights for the

Court to protect, as he claims. Therefore, his claim that sovereign immunity is waived cannot

stand and TDI, the Commissioner, and Ms. Okonkwo retain their sovereign immunity protection,

DEFENDANT OKONKWO’S FIRST AMENDED PLEA TO THE JURISDICTION

Cause No. 2024-78536; In re Heiliger, et al. v. TDI-DWC, et al. 10

intact.

C. Ms. Okonkwo’s Response on Ultra Vires Claims

Petitioner’s claims that Ms. Okonkwo’s alleged issuance of an unauthorized subpoena are

without merit and exaggerate a matter of established form into an unfounded claim. The rule in

28 Texas Administrative Code §142.12 does not anywhere expressly require that a subpoena

declare that it is a deposition or hearing subpoena. All the rule requires is that any subpoena direct

the person to attend or to produce evidence at a deposition (deposition subpoena) or at a hearing

(hearing subpoena). The subpoena in this case sought production of evidence at a hearing. It

was clear from the procedural context that the request was for production at the hearing. The fact

that production at a hearing was required was manifested by the circumstances, including the fact

that the subpoena was requested by the County on September 5, 2024, and issued by the ALJ on

or about September 19, 2024, for a hearing that was convened and recessed on September 25,

2024. There was no request for or notice of any deposition pending at the time.

The subpoena was requested pursuant to the rule in 28 Texas Administrative Code

§142.12(a), which provides that the meanings of terms, including the term “subpoena,” are as

stated except where context clearly indicates otherwise. The context of the request at the time,

clearly during the lead up to the hearing, indicates that the subpoena was one for production at the

hearing (not at a deposition). Moreover, the form of the subpoena is identical to the form of

countless other subpoenas issued at the agency for production of evidence at hearings. And 28

Texas Administrative Code §142.2(a) also authorizes issuance of subpoenas, but lacks any terms

directing production at “depositions” or “hearings”. Ms. Okonkwo was not only following the

applicable rules in 28 Texas Administrative Code Sections 142.2 and 142.12, but also agency

practice.

DEFENDANT OKONKWO’S FIRST AMENDED PLEA TO THE JURISDICTION

Cause No. 2024-78536; In re Heiliger, et al. v. TDI-DWC, et al. 11

Petitioner’s claim that Ms. Okonkwo acted ultra vires by issuing a subpoena in the form

the agency required, is entirely without merit and should be rejected.

PART 3

OKONKWO JOINDER IN TDI’S DECEMBER 4, 2024, AMENDED PLEA TO

JURISDICTION

As she did in her initial Plea to the Jurisdiction, and considering the time available to

prepare this response, Ms. Okonkwo hereby again joins in the TDI’s First Amended Plea to the

Jurisdiction filed on December 4, 2024, in this matter. More specifically, Ms. Okonkwo adopts

and incorporates by reference herein each of TDI’s specific claims in its December 4, 2024, First

Amended Plea, including TDI’s recitals and arguments.

PART 4

OKONKWO ASSERTION OF CLAIMS FROM INITIAL PLEA TO THE

JURISDICTION

Considering the time available to prepare a response or amended plea to the jurisdiction,

in this Part 4, Ms. Okonkwo continues to assert or, where appropriate, reasserts her claims and

arguments from her initial Plea to the Jurisdiction, filed November 26, 2024, including her joinder

in the TDI’s November 18, 2024, Plea to the Jurisdiction. Ms. Okonkwo’s November 26, 2024,

Plea is both incorporated herein by reference and restated again here below for inclusion in this

Amended Plea:

II. MS. OKONKWO’S JOINDER & ADOPTION OF TDI’S NOVEMBER 18, 2024,

PLEA TO THE JURISDICTION.

Ms. Okonkwo joins in each of TDI’s claims and allegations in its November 18, 2024, Plea

to the Jurisdiction. More specifically, she adopts and incorporates by reference herein each of

TDI’s specific recitals and arguments, including TDI’s recitals and arguments regarding: 1) this

case’s “Factual Background;” 2) TDI’s claim that “Sovereign Immunity Bars Petitioner’s Claim;”

DEFENDANT OKONKWO’S FIRST AMENDED PLEA TO THE JURISDICTION

Cause No. 2024-78536; In re Heiliger, et al. v. TDI-DWC, et al. 12

3) TDI’s claim that “Unconstitutional Violation of Separation of Powers Bars Plaintiff’s Suit;” and

4) TDI’s Claim that “Improper Service Deprives Court of Personal Jurisdiction Over TDI.”

Employees of an agency, like Ms. Okonkwo, are entitled to the same immunity as the agency.

Besides protecting the agency, sovereign immunity likewise protects the ALJ in her official

capacity from suit. In that regard, TDI's arguments in TDI’s Plea to the Jurisdiction are equally

applicable to Ms. Okonkwo, in her official capacity.

For the reasons asserted by TDI in its Plea to the Jurisdiction on each of these claims, which

Ms. Okonkwo adopts, joins in, and asserts as if stated herein in full, Ms. Okonkwo joins in TDI’s

Plea to the Jurisdiction and requests the same ruling and relief as that requested by TDI.

III. MS. OKONKWO’S PLEA TO THE JURISDICTION: INDIVIDUAL CAPACITY.

Next, Ms. Okonkwo submits her own Plea to the Jurisdiction asking the Court to find that

the Court lacks jurisdiction over Ms. Okonkwo in her individual capacity and praying for the Court

to dismiss Petitioner’s claims against Ms. Okonkwo in her individual capacity. Ms. Okonkwo is

protected by and enjoys Official Immunity (including Judicial and Quasi-Judicial Immunity), as

discussed in Section A below, and is protected by Personal Immunity under Texas Insurance Code

sections 34.001 and 34.005, and Texas Labor Code section 402.00123, as discussed in Section B

below. In each of these respects, the Court lacks jurisdiction over Petitioner’s pleadings, as those

pleadings pertain to Ms. Okonkwo, individually.

D. Ms. Okonkwo’s Plea to the Jurisdiction: Official, Judicial, and/or Quasi-

Judicial Immunity.

As noted, the Court should dismiss Petitioner’s claims against Ms. Okonkwo in her

individual capacity for issuing the subpoena, granting the Motion to Compel, and continuing the

hearing to permit the subpoenaed data to be produced because the Court lacks jurisdiction over

DEFENDANT OKONKWO’S FIRST AMENDED PLEA TO THE JURISDICTION

Cause No. 2024-78536; In re Heiliger, et al. v. TDI-DWC, et al. 13

those claims under Official Immunity, Judicial Immunity, or Quasi-Judicial Immunity. While, in

her official capacity, Mr. Okonkwo is likewise protected by sovereign immunity for the reasons

set out in TDI’s Plea to the Jurisdiction, adopted above, in her individual capacity, Ms. Okonkwo

is entitled to Official, Judicial, or Quasi-Judicial Immunity under Texas law.

When employees are sued in their individual capacity, they are entitled to raise the defense

of official immunity. Gonzalez v. Avalos, 866 S.W.2d 346, 349 (Tex. App.—El Paso 1993), writ

dism'd w.o.j., per curiam, 907 S.W.2d 443 (Tex. 1995). This immunity, variously known as

“governmental,” “official,” “quasi-judicial,” or “qualified” immunity, has evolved out of a public

policy that encourages public officers to carry out their duties without fear of personal liability.

Carpenter v. Barner, 797 S.W.2d 99, 101 (Tex. App.—Waco 1990, writ denied). Petitioner’s

claims here against Ms. Okonkwo individually violate the purposes of the Official Immunity

doctrine.

Under the principle of Official Immunity, government employees are entitled to official

immunity from suit arising from the performance of their duties if: (1) their duties are discretionary

duties; (2) performed in good faith; (3) where they are acting within the scope of their authority.

Id.; Ballantyne v. Champion Builders, Inc., 144 S.W.3d 417, 421 (Tex. 2004). Official Immunity

is a defense from suit, as opposed to a defense from liability, so it is appropriately brought in a

plea to the jurisdiction. See Hernandez v. Sommers, 587 S.W.3d 461, 470-72 (Tex. App.—El

Paso 2019, pet. denied).

The first prong of the “Official Immunity” privilege requires that the governmental

employees have acted in a discretionary function. Ballantyne, 144 S.W.3d at 425. A

“discretionary function” is an act that requires personal deliberation, decision, and judgment. Id.

An act by a government official in the course of performing a discretionary function does not lose

DEFENDANT OKONKWO’S FIRST AMENDED PLEA TO THE JURISDICTION

Cause No. 2024-78536; In re Heiliger, et al. v. TDI-DWC, et al. 14

its discretionary status because it was erroneous or even wrongful. Actions which require

obedience to orders or the performance of a duty to which the person has no choice are not

discretionary, but ministerial. Ballantyne, 144 S.W.3d at 421. Ministerial acts are those for

which “the law prescribes and defines the duty to be performed with such precision and certainty

as to leave nothing to the exercise of discretion or judgment.” Ballantyne, 144 S.W.3d at 425,

quoting Comm’r of the Gen. Land Off. v. Smith, 5 Tex. 471, 479 (1849). If a public official must

obey an order, without having any choice in complying, the act is ministerial. Ballantyne, 144

S.W.3d at 425; City of Lancaster v. Chambers, 883 S.W.2d 650, 654 (Tex. 1994). But if an action

involves personal deliberation, decision, and judgment, it is discretionary. Ballantyne, 144 S.W.3d

at 425.

The second prong of the Official Immunity privilege, “good faith,” requires that the

governmental employee have acted in a manner that a reasonably prudent official or employee,

under the same or similar circumstances, would have believed to be reasonable and justified. Id.

at 426. This test of good faith addresses what a reasonable person could have believed rather than

what a reasonable person would have done. Id.; see Hernandez, 587 S.W.3d at 471.

Finally, the third prong of the Official Immunity privilege, acting within the “scope of

authority,” requires the public official or employee to have acted within the scope of his or her

authority where he or she is discharging the duties generally assigned to them, even if they are

performed wrongly or negligently. Ballantyne, 144 S.W.3d at 421. Public officials and

employees are not liable for acts performed in good faith within the scope of authority, even when

the officials violate or misinterpret the law. Id.

Here, Ms. Okonkwo has satisfied each of these requirements:

DEFENDANT OKONKWO’S FIRST AMENDED PLEA TO THE JURISDICTION

Cause No. 2024-78536; In re Heiliger, et al. v. TDI-DWC, et al. 15

First, Ms. Okonkwo was performing discretionary duties when she issued the subpoena,

granted the Motion to Compel, and continued the hearing. Upon being presented with a facially

valid request for a subpoena that indicated that the required information was discoverable,

material, and relevant to the issues, Ms. Okonkwo exercised personal deliberation, decision, and

judgment to determine that the subpoena should be issued. She was not carrying out a mandatory,

ministerial duty. Ms. Okonkwo was performing a discretionary duty. Hernandez, 587 S.W.3d

at 470. She was also performing discretionary duties when she granted the motion to compel and

continued the hearing.

Next, Ms. Okonkwo was acting in good faith. Ms. Okonkwo issued the subpoena for

information requested by a party for facially-discoverable evidence that was material and relevant

to the issues framed for trial and adjudication in the proceeding. The requested records were

alleged to contain information that would provide relevant proof, favorably or unfavorably, of the

impact of Decedent’s drug use as a factor contributing to Decedent’s death. 1 In determining

whether to issue the subpoena, Ms. Okonkwo acted on her belief and judgment. Her decision was

consistent with that of a reasonably prudent official, under the same or similar circumstances, who

could have believed the action was justified based on the information possessed when the conduct

occurred. Ballantyne, 144 S.W.3d at 426. A reasonably prudent administrative law judge (“ALJ”)

in the same or similar circumstances would have believed that issuance of the requested subpoena,

1

Because the records required by the subpoena may address the use of prescribed medications, including the

management, prescribed potency, frequency, condition, and effect of the use of such medications, the records would

tend to establish facts relating to the condition(s) that may be at issue in this proceeding (potential hypertension) and

may have been relied by the parties as part of their claims and defenses under the exception in Tex. R. Evid. 509(e)(4)

and 510(d)(5). See R.K. v. Ramirez, 887 S.W.2d 836, 843 (Tex. 1994) (“(1) the records sought to be discovered are

relevant to the condition at issue, and (2) the condition is relied upon as a part of a party's claim or defense.”)

.

DEFENDANT OKONKWO’S FIRST AMENDED PLEA TO THE JURISDICTION

Cause No. 2024-78536; In re Heiliger, et al. v. TDI-DWC, et al. 16

granting the Motion to Compel, and continuing the hearing were necessary to permit complete and

effective discovery on the issues as framed. Accordingly, Ms. Okonkwo’s rulings were in good

faith.

In addition, Ms. Okonkwo’s good faith is demonstrated by her earlier ruling striking 20

years of requested subpoenas and issuing a subpoena for only three years and several months of

data, instead. See Petitioner’s Amended Verified Original Petition for Declaratory Judgment,

Application for Temporary Restraining Order, Temporary Injunction, and Permanent Injunction,

Page 8 of 21, Par. 25. Ms. Okonkwo’s ruling, which restricted the scope of the request,

minimizing the burden on the responsive providers and on Petitioner, was indicative of her good

faith regarding the scope of the requested subpoena and her ruling on the Motion to Compel and

Motion for Continuance.

Finally, Ms. Okonkwo was acting within the scope of her authority when she issued the

subpoena, granted the Motion to Compel, and continued the hearing under a broad range of

authority including provisions of Chapter 611 of the Texas Health and Safety Code, provisions of

Chapter 36 of the Texas Insurance Code, provisions of Chapters 402 and 410 of the Texas Labor

Code, provisions of Chapter 142 of 28 Texas Administrative Code, and provisions of the Texas

Rules of Civil Procedure.

Administrative law judges act within the scope of their authority when they discharge the

duties generally assigned to them under their legal authorization. See Ballantyne, 144 S.W.3d at

424; Chambers, 883 S.W.2d at 658. The duties TDI ALJs are required to perform include issuing

subpoenas as requested by litigants in proceedings adjudicated by the workers’ compensation

division, granting motions to compel, and continuing administrative hearings. See Tex. Ins. Code

§§ 36.151-.162; Tex. Lab. Code §§ 402.00111, 402.00113, 402.00115, 402.00116,

DEFENDANT OKONKWO’S FIRST AMENDED PLEA TO THE JURISDICTION

Cause No. 2024-78536; In re Heiliger, et al. v. TDI-DWC, et al. 17

402.00128(b)(2), (b)(3), (b)(12), 410.157-58, 410.162, and 418.004; Tex. Health & Safety Code

§§ 611.002, 611.004(a)(1), and 611.006(a)(1), and the express regulatory authority in 28 Tex.

Admin. Code §§ 142.2 and 142.12; Hernandez, 587 S.W.3d at 470.

Ms. Okonkwo issued the subpoena, granted the Motion to Compel, and continued the

hearing under that express statement of her duties and authority. In each instance she followed

the statutory authority in Texas Insurance Code sections 36.151-36.162, Texas Labor Code

sections 402.00111, 402.00113, 402.00115, 402.00116, 402.00128(b)(2), (b)(3), (b)(12), 410.157-

58, 410.162, and 418.004, Texas Health and Safety Code sections 611.002 and 611.004(a)(1), and

the express regulatory authority in 28 Texas Administrative Code sections 142.2 and 142.12. 2

The Commissioner of Workers’ Compensation and the ALJs working under him are

authorized and required to issue subpoenas in hearings, approve motions to compel production of

documents, and continue hearing to permit production of required data. And, if the requested

information is subject to claims of privilege or confidentiality, 3 they are authorized to impose

protective orders. See Tex. Ins. Code §§ 36.151-62; Tex. Lab. Code §§ 402.00111, 402.00113,

402.00115, 402.00116, and 402.00128(b)(2), (b)(3), and (b)(12); and 28 Tex. Admin. Code §§

2

Petitioner’s assertion that 28 Texas Administrative Code section 142.12 does not authorize subpoenas seeking

documents without requiring appearance at a deposition or hearing fails to recognize that, by clear contextual

indication, section 142.2 is a broader grant of subpoena powers than the grant of subpoena powers in section 142.12,

that section 142.12 is more restrictive than section 142.2, and that the power to issue subpoenas in section 142.2,

which gives effect to Insurance Code Chapter 36.151-62, Texas Labor Code sections 402.00111, 402.00113,

402.00115, 402.00116, 402.00128(b)(2), (b)(3), and (b)(12), 410.157-58, 410.162, and 418.004, is unrestrained by the

limitations in section 142.12.

3

While Texas Health and Safety Code section 611.002 provides that mental health records are confidential, section

611.004(a)(1) makes those confidential records subject to disclosure by a professional to a governmental agency if the

disclosure is required or authorized by law. And, section 611.006(a)(11) makes such records subject to disclosure

where in a court or agency proceeding the court or agency has issued an order or subpoena. The records required by

the subpoena in this instance are required by law under Texas Insurance Code Chapter 36.151-62, Texas Labor Code

sections 402.00111, 402.00113, 402.00115, 402.00116, 402.00128(b)(2), (b)(3), (b)(12), 410.157-58, 410.162, and

418.004, and Health and Safety Code §622.006(a)(11).

DEFENDANT OKONKWO’S FIRST AMENDED PLEA TO THE JURISDICTION

Cause No. 2024-78536; In re Heiliger, et al. v. TDI-DWC, et al. 18

142.2 and 142.12. Ms. Okonkwo was carrying out those duties in her position as a member of

commission Staff, assigned to execute required duties to administer and operate the workers’

compensation system, acting within the scope of her authority, in good faith, on a matter within

her discretion under the applicable Codes and rules. Id.

In issuing the subpoena, granting the Motion to Compel, and continuing the hearing, Ms.

Okonkwo performed a discretionary duty, in good faith, that was a duty approved and assigned in

the Agency’s rules governing procedures for the conduct of contested case hearings in the workers’

compensation program. See Tex. Ins. Code §§ 36.151-62; Tex. Lab. Code §§ 402.00128(b)(2),

(b)(3), and (b)(12), 410.157-58, 410.162; and 28 Tex. Admin Code §§ 142.2 and 142.12.

Accordingly, Ms. Okonkwo’s conduct satisfies the three conditions for Official Immunity.

Therefore, the Court should find that Ms. Okonkwo is protected by Official Immunity in her

individual capacity.

Finally, Ms. Okonkwo’s protection under “Official Immunity” includes protection under

“Judicial” or “Quasi-Judicial” Immunity, as well. See Sledd v. Garrett, 123 S.W.3d 592, 594

(Tex. App.—Houston [14th Dist.] 2003, no pet.); Harlan v. Tex. Dep’t of Ins., No. 01–14–00479–

CV, 2016 WL 3476914 (Tex. App.—Houston [1st Dist.] June 23, 2016, no pet.) (mem. op.).

Though appropriately regarded as a subset or class of “Official Immunity,” “Judicial Immunity”

and “Quasi-Judicial Immunity” are more focused. They protect quasi-judicial officials who,

irrespective of their title, perform functions essentially similar to those of judges, in a setting

similar to that of a court. Id.; see Butz v. Economou, 438 U.S. 478, 511–14, 98 S.Ct. 2894, 2913–

15, 57 L.Ed.2d 895 (1978) (holding that absolute judicial immunity covers judicial acts of hearing

examiners and administrative law judges). In issuing the subpoenas, granting the Motion to

Compel, and continuing the hearing Ms. Okonkwo was performing judicial functions in a setting

DEFENDANT OKONKWO’S FIRST AMENDED PLEA TO THE JURISDICTION

Cause No. 2024-78536; In re Heiliger, et al. v. TDI-DWC, et al. 19

similar to a court. Accordingly, Ms. Okonkwo’s acts met the conditions for Judicial or Quasi-

Judicial Immunity. Thus, in addition to finding that Ms. Okonkwo is protected by Official

Immunity, the Court should also find that Ms. Okonkwo is protected by Judicial and/or Quasi-

Judicial Immunity in her individual capacity.

E. Ms. Okonkwo’s Plea to the Jurisdiction: Immunity Under Texas Insurance

Code sections 34.001 & 34.005 and Texas Labor Code section 402.00113.

Ms. Okonkwo is also immune from suit under Texas Insurance Code sections 34.001 and

34.005, which provide Personal Immunity to commission employees, and Texas Labor Code

section 402.00123 that provides immunity to the Commissioner of Workers’ Compensation and

those working under him. Section 34.001 of the Insurance Code provides:

A person who is the commissioner or an employee of the department is not

personally liable in a civil action for:

(1) an act performed in good faith within the scope of that person’s authority; or

(2) damages caused by an official act or omission of that person unless the act or

omission is corrupt or malicious.

Tex. Ins. Code Ann. § 34.001 (West).

Moreover, section 34.005 of the Insurance Code provides:

This chapter does not affect or modify any common law or statutory privilege or

immunity. Tex. Ins. Code Ann. § 34.005 (West).

Finally, section 402.00123 of the Labor Code provides:

The commissioner is not liable in a civil action for an act performed in good faith

in the execution of duties as commissioner. Tex. Lab. Code Ann. § 402.00123 (West).

DEFENDANT OKONKWO’S FIRST AMENDED PLEA TO THE JURISDICTION

Cause No. 2024-78536; In re Heiliger, et al. v. TDI-DWC, et al. 20

Ms. Okonkwo is an employee of the Texas Department of Insurance, supplied as Staff by

the Commissioner of Insurance to the Commissioner of Workers’ Compensation, acting in good

faith within the scope of her authority as an administrative law judge to carry out the goals and

objectives of the workers’ compensation system. There is nothing showing that her actions were

the result of corruption or malice. Her actions are discretionary, not mandatory or ministerial.

Thus, Ms. Okonkwo is protected from suit for civil action in her individual capacity under Texas

Insurance Code sections 34.001 and 34.005. The Court should find that Ms. Okonkwo is

protected by Personal Immunity under those sections of the Insurance Code.

In addition, Ms. Okonkwo is an employee working under the direction of the

Commissioner of Workers’ Compensation in good faith to carry out the goals and objectives of

the workers’ compensation system under Texas Labor Code sections 402.00115 and 402.00116.

Under the Labor Code, she has the same immunity as the commissioner. See Harlan, 2016 WL

3476914. Thus, Ms. Okonkwo, like the Commissioner, is protected from suit for civil action in

her individual capacity under Texas Labor Code section 402.00123 and the Court should find that

Ms. Okonkwo is protected by Personal Immunity under that section.

F. Ms. Okonkwo’s Individual Plea to the Jurisdiction: Summary

For these reasons, the Court lacks jurisdiction. Ms. Okonkwo is protected under Official

Immunity, Judicial and Quasi-Judicial Immunity, immunity under Texas Insurance Code sections

34.001 and 34.005, and under Texas Labor Code section 402.00123. In that regard, Petitioner’s

claims against Ms. Okonkwo, individually, are duplicative of the Petitioner’s official capacity

claims against her. See Tex. State Bd. of Pub. Acct. v. Bass, No. 03-09-00251-CV, 2010 WL

5575921, at *7 (Tex. App.—Austin Jan. 14, 2011, no pet.) (mem. op); Tex. Liquor Control Bd. v.

Canyon Creek Land Corp., 456 S.W.2d 891, 895 (Tex. 1970). The claims are also not supported

DEFENDANT OKONKWO’S FIRST AMENDED PLEA TO THE JURISDICTION

Cause No. 2024-78536; In re Heiliger, et al. v. TDI-DWC, et al. 21

by the allegations in Petitioner’s pleadings (which allege official capacity acts and claims, not

individual actions). And, as an individual in a suit that asserts allegations regarding official acts,

Ms. Okonkwo, individually, is not a proper party under the Amended Petition. See City of Live

Oak v. Lee, No. 04-23-00022-CV, 2023 WL 4338957, at *2 (Tex. App.—San Antonio July 5,

2023, no pet.) (mem. op.). The Court should dismiss Petitioner’s claims against Ms. Okonkwo in

her individual capacity with prejudice.

IV. REQUEST FOR A HEARING AT THE EARLIEST OPPORTUNITY

Ms. Okonkwo joins TDI in its requests for a hearing before the currently set hearing in the

11th District Court on December 16, 2024, at 11:00 a.m. To the extent that hearing has been set

for December 5, 2024, Ms. Okonkwo joins in requesting a hearing on this submission at that

hearing. As TDI asserts in its motion, the jurisdictional issues should be resolved before other

substantive or procedural issues may be addressed.

V. PRAYER

WHEREFORE, Ms. Okonkwo, in her official and individual capacities, joins the Texas

Department of Insurance, Division of Workers’ Compensation and its Commissioner and prays

for this Court to grant TDI’s Plea to the Jurisdiction and dismiss Petitioner’s suit against Ms.

Okonkwo in her official capacity. Ms. Okonkwo prays for the Court to grant her individual Plea

to the Jurisdiction and dismiss Petitioner’s suit against Ms. Okonkwo in her individual capacity.

Ms. Okonkwo also prays for the Court to deny issuance of any new TRO or Temporary Injunction

against her in both her official and individual capacities for the reasons stated above and in TDI’s

Plea, as adopted by Ms. Okonkwo. Ms. Okonkwo joins TDI in her official and individual

capacities and prays that Petitioner take nothing by reason of this suit and that all court costs be

DEFENDANT OKONKWO’S FIRST AMENDED PLEA TO THE JURISDICTION

Cause No. 2024-78536; In re Heiliger, et al. v. TDI-DWC, et al. 22

taxed and adjudged against Petitioner. Finally, Ms. Okonkwo joins TDI and prays for any other

relief to which she, they, or each may be justly entitled.

Respectfully submitted,

KEN PAXTON

Attorney General of Texas

BRENT WEBSTER

First Assistant Attorney General

RALPH MOLINA

Deputy First Assistant Attorney General

JAMES LLOYD

Deputy Attorney General for Civil Litigation

ERNEST C. GARCIA

Chief, Administrative Law Division

/s/ James Brazell

JAMES Z. BRAZELL

State Bar No. 02930100

Assistant Attorney General

Administrative Law Division

OFFICE OF THE ATTORNEY GENERAL OF TEXAS

P.O. Box 12548, Capitol Station

Austin, Texas 78711-2548

Telephone: (512) 475-3204

Facsimile: (512) 320-0167

James.Brazell@oag.texas.gov

ATTORNEYS FOR DEFENDANT,

FRANCISCA OKONKWO, ADMINISTRATIVE LAW

JUDGE, TEXAS DEPARTMENT OF INSURANCE,

DIVISION OF WORKERS’ COMPENSATION, IN HER

OFFICIAL AND INDIVIDUAL CAPACITIES

DEFENDANT OKONKWO’S FIRST AMENDED PLEA TO THE JURISDICTION

Cause No. 2024-78536; In re Heiliger, et al. v. TDI-DWC, et al. 23

CERTIFICATE OF SERVICE

I hereby certify that on December 5, 2024, a true and correct copy of the above and forgoing

document has been served via electronic service and/or email to the following:

SHERLYN HARPER RUSSELL L. MORRIS

State Bar No. 24093176 State Bar No. 24099150

Assistant Attorney General ANDREW W. BRUCE

Administrative Law Division State Bar No. 24113627

OFFICE OF THE ATTORNEY GENERAL OF TEXAS PABLO A. FRANCO

808 Travis Street, #1520 State Bar No. 24121625

Houston, Texas 77002 MCBRYDE FRANCO, PLLC

Telephone: (713) 225-8913 11000 Richmond Avenue, Suite 350

Facsimile: (512) 320-0167 Houston, Texas 77042

sherlyn.harper@oag.texas.gov Telephone: (713) 223-7699

Facsimile: (512) 691-9072

ATTORNEY FOR DEFENDANT TEXAS Serv.russell@mf-txlaw.com

DEPARTMENT OF INSURANCE, DIVISION OF

WORKERS’ COMPENSATION ATTORNEYS FOR PETITIONERS

DEAN G. PAPPAS

State Bar No. 15454375

MARY M. MARKANTONIS

State Bar No. 12986800

LISA M. TEACHEY

State Bar No. 24056416

MARILYN J. ALLEN

State Bar No. 24025225

DEAN G. PAPPAS LAW FIRM, PLLC

8588 Katy Freeway, Suite 100

Houston, Texas 77024

Telephone: (713) 914-6200

Facsimile: (713) 914-6201

dpappas@dgplawfirm.com

mmarkantonis@dgplawfirm.com

lteachey@dgplawfirm.com

mallen@dgplawfirm.com

ATTORNEYS FOR REAL PARTY IN INTEREST

FORT BEND COUNTY

/s/ James Z. Brazell

JAMES Z. BRAZELL

Assistant Attorney General

DEFENDANT OKONKWO’S FIRST AMENDED PLEA TO THE JURISDICTION

Cause No. 2024-78536; In re Heiliger, et al. v. TDI-DWC, et al. 24

Automated Certificate of eService

This automated certificate of service was created by the efiling system.

The filer served this document via email generated by the efiling system

on the date and to the persons listed below. The rules governing

certificates of service have not changed. Filers must still provide a

certificate of service that complies with all applicable rules.

Meridith Fischer on behalf of James Brazell

Bar No. 2930100

meridith.fischer@oag.texas.gov

Envelope ID: 94962671

Filing Code Description: No Fee Documents

Filing Description: Defendant Okonkwo's First Amended Plea to the

Jurisdiction

Status as of 12/5/2024 8:41 AM CST

Case Contacts

Name BarNumber Email TimestampSubmitted Status

Marilyn Allen 24025225 mallen@dgplawfirm.com 12/5/2024 8:01:44 AM SENT

Mary Markantonis 12986800 mmarkantonis@dgplawfirm.com 12/5/2024 8:01:44 AM SENT

Dean Pappas 15454375 dpappas@dgplawfirm.com 12/5/2024 8:01:44 AM SENT

Catherine Hughes catherine.hughes@oag.texas.gov 12/5/2024 8:01:44 AM SENT

Sherlyn Harper Sherlyn.Harper@oag.texas.gov 12/5/2024 8:01:44 AM SENT

James Z.Brazell james.brazell@oag.texas.gov 12/5/2024 8:01:44 AM SENT

Lisa Teachey lteachey@dgplawfirm.com 12/5/2024 8:01:44 AM SENT

Russell Morris 24099150 serv.russell@mf-txlaw.com 12/5/2024 8:01:44 AM SENT

Meridith Fischer Meridith.Fischer@oag.texas.gov 12/5/2024 8:01:44 AM SENT

Sherlyn Harper Sherlyn.Harper@oag.texas.gov 12/5/2024 8:01:44 AM SENT

Pablo Franco serv.pablo@mf-txlaw.com 12/5/2024 8:01:44 AM SENT

Andrew Bruce serv.andrew@mf-txlaw.com 12/5/2024 8:01:44 AM SENT

Appendix D

3/19/2025 10:43 AM

Marilyn Burgess - District Clerk Harris County

Envelope No. 98628126

By: Chancesas Ougrah

Filed: 3/19/2025 10:43 AM

CAUSE NO. 2024-78536

IN RE JOSHUA DAVID HEILIGER, § IN THE DISTRICT COURT OF

INDIVIDUALLY, AND ON BEHALF §

OF THE ESTATE OF LAUREN §

BRITTANE SMITH, DECEASED, §

AND ON BEHALF OF DEATH §

BENEFITS BENEFICIARIES §

JOSHUA DAVID HEILIGER AND §

EMMA DESTINY HEILIGER, §

Petitioners, § HARRIS COUNTY, TEXAS

§

v. §

§

FRANCISCA OKONKWO, §

ADMINISTRATIVE LAW JUDGE, §

TEXAS DEPARTMENT OF §

INSURANCE, DIVISION OF §

WORKERS’ COMPENSATION, IN §

HER OFFICIAL AND INDIVIDUAL §

CAPACITIES, AND GREATER §

HOUSTON PSYCHIATRIC §

ASSOCIATES, PLLC, §

Respondents. § 11th JUDICIAL DISTRICT

RESPONDENT, FRANCISCA OKONKWO, ADMINISTRATIVE LAW JUDGE’S

FIRST SUPPLEMENTAL PLEA TO THE JURISDICTION,

RESPONSE TO PETITIONER’S FOURTH AMENDED VERIFIED ORIGINAL

PETITION FOR DECLARATORY JUDGMENT, APPLICATION FOR WRIT OF

MANDAMUS, TEMPORARY RESTRAINING ORDER, TEMPORARY INJUNCTION,

AND PERMANENT INJUNCTION,

RESPONSE TO PETITIONER’S APPLICATION FOR SECOND TEMPORARY

RESTRAINING ORDER AND REQUEST FOR HEARING ON PETITIONER’S

APPLICATION FOR TEMPORARY INJUNCTION,

MOTION TO DISMISS, and

GENERAL DENIAL

TO THE HONORABLE JUDGE OF THE COURT:

COMES NOW Respondent Francisca Okonkwo (“Ms. Okonkwo”), Administrative Law

Judge (“ALJ”), Texas Department of Insurance, Division of Workers’ Compensation (“TDI-

DWC”), in her official and individual capacities, and files her First Supplemental Plea to the

Jurisdiction; Response to Petitioner’s Fourth Amended Verified Original Petition for Declaratory

Judgment, Application for Writ of Mandamus, Temporary Restraining Order, Temporary

Injunction, and Permanent Injunction; Response to Petitioner’s Application for Second Temporary

Restraining Order and Request for Hearing on Petitioner’s Application for Temporary Injunction;

Motion to Dismiss; and General Denial.

In this filing, Ms. Okonkwo a) submits new claims asserting that the Court lacks

jurisdiction; b) incorporates by reference her earlier Initial and First Amended Pleas to the

Jurisdiction, filed on November 26, 2024, and December 5, 2024; c) incorporates her prior joinders

in TDI-DWC’s Initial and First Amended Pleas to the Jurisdiction filed on November 18, 2024,

and December 4, 2024; d) responds to Mr. Heiliger’s Fourth Amended Verified Original Petition,

Application for Mandamus, Temporary Restraining Order, and Temporary and Permanent

Injunction; e) responds to Mr. Heiliger’s Application for Second Temporary Restraining Order

and Request for Hearing on Petitioner’s Application for Temporary Injunction; f) submits her

Motion to Dismiss, and g) files her new General Denial. In support thereof, Ms. Okonkwo would

respectfully show the Court the following:

EXECUTIVE SUMMARY

Petitioner, Joshua Heiliger, seeks injunctive and mandamus relief against TDI-DWC

Administrative Law Judge Francisca Okonkwo, claiming her issuance of a subpoena compelling

disclosure of mental health records of Lauren Smith, Mr. Heiliger’s deceased wife, is ultra vires

OKONKWO’S 1ST SUPPLEMENTAL PTJ, RESPONSE, MTD & GENERAL DENIAL

Cause No. 2024-78536; In re Heiliger, et al. v. Okonkwo, et al. 2

and violates Mr. Heiliger’s constitutionally-protected privilege in the records. Ms. Okonkwo has

filed her initial and First Amended Pleas to the Jurisdiction. Ms. Okonkwo now brings this First

Supplemental Plea to the Jurisdiction, Response to those claims, and Motion to Dismiss.

First, as explained in paragraphs 2 through 5 below, Mr. Heiliger’s ultra vires claims are

moot: Mr. Heiliger’s ultra vires claims were based entirely on his claim that the subpoena issued

by Judge Okonkwo on September 19, 2024, (the “first subpoena”) failed to state whether it was

for a hearing or a deposition and failed to provide the required date. On February 18, 2025, Judge

Okonkwo withdrew and vacated the first subpoena and on January 27, 2025, she issued in its place

a second subpoena which addresses and satisfied the conditions alleged in Mr. Heiliger complaint.

Judge Okonkwo’s withdrawal of the first subpoena and issuance of the second subpoena rendered

Mr. Heiliger’s ultra vires claims moot.

Next, as explained in paragraphs 6 through 8 below, Mr. Heiliger’s claim that the subpoena

violates Mr. Heiliger’s constitutionally-protected privilege in Ms. Smith’s mental health records

is without support. Under three governing principles and dispositive authorities, a) the Offensive

Use Doctrine (recognized in Ginsberg v. Fifth Ct. of Appeals, 686 S.W.2d 105, 108 (Tex. 1985),

Westheimer v. Tennant, 831 S.W.2d 880, 883 (Tex. App.— Houston [14th Dist.] 1992, no writ),

and in Pub. Util. Comm’n of Tex. v. Hous. Lighting & Power Co., 778 S.W.2d 195 (Tex. App.—

Austin 1989, no writ) (the latter cited in Petitioner’s Petition); b) the “Patient Litigant Exception”

in Texas Rules of Evidence 509(e)(4) and 510(d)(5); and c) the statutory disclosure authorization

in Texas Health and Safety Code sections 611.004(a)(1) and 611.004(a)(11), acting together, Ms.

Smith’s mental health records are not privileged, but are fully disclosable, as discussed in greater

detail below.

OKONKWO’S 1ST SUPPLEMENTAL PTJ, RESPONSE, MTD & GENERAL DENIAL

Cause No. 2024-78536; In re Heiliger, et al. v. Okonkwo, et al. 3

Since Petitioner’s ultra vires claims are moot and his claims regarding his constitutionally-

protected privilege rights are without merit, Ms. Okonkwo’s immunity protection (Sovereign

Immunity, Official Immunity, Judicial Immunity, Quasi-Judicial Immunity, and Statutory

Immunity) has not been defeated or overcome. Accordingly, in the face of these undefeated, intact

immunities, the Court lacks jurisdiction and must dismiss Petitioner’s claims against Judge

Okonkwo.

The requested mental health records are relevant and necessary for the determination of

Mr. Heiliger’s application in the contested case proceeding at the Division. In Caesar v.

Mountanos, 542 F.2d 1064, 1069 (9th Cir. 1976), a case cited by the Texas Supreme Court in R.K.,

M.D. v. Ramirez, 887 S.W.2d 836 (Tex. 1994), itself a critical case in this matter and a case cited

by Mr. Heiliger in his filings, the U.S. 9th Circuit Court of Appeals provides a paragraph that states

the problem posed by Mr. Heiliger’s seeking to prevent disclosure in this proceeding:

The state has a compelling interest to insure that truth is ascertained in legal

proceedings in its courts of law. This interest has been held to be sufficient to

require newsmen to testify before grand juries concerning privileged information,

Branzburg v. Hayes, 408 U.S. 665, 92 S.Ct. 2646, 33 L.Ed.2d 626 (1972), to compel

testimony from witnesses invoking the Fifth Amendment privilege against self-

incrimination once immunity has been given, Kastigar v. United States, 406 U.S.

441, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972), and to require witnesses before grand

juries to testify concerning illegally obtained evidence, United States v. Calandra,

414 U.S. 338, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974). California’s interest in

requiring psychotherapists to produce limited disclosure of confidential

communications is adequately supported by a compelling interest under current

constitutional standards.

Caesar v. Mountanos, 542 F.2d 1064, 1069 (9th Cir. 1976).

As in Caesar and the cases it mentions, the question before the Court in this case is the

compelling interest in ascertaining the full truth of the causes of Ms. Smith’s death and of the

impact of the documentation of those causes on Mr. Heiliger’s request to recover death benefits in

OKONKWO’S 1ST SUPPLEMENTAL PTJ, RESPONSE, MTD & GENERAL DENIAL

Cause No. 2024-78536; In re Heiliger, et al. v. Okonkwo, et al. 4

the contested case at the Division. Petitioner’s attempt to deny access to Ms. Smith’s mental health

records obstructs the ascertainment of the full truth.

It also violates three established governing principles:

a) the Offensive Use Doctrine (recognized in Ginsberg v. Fifth Ct. of Appeals, 686

S.W.2d 105, 108 (Tex. 1985), Westheimer v. Tennant, 831 S.W.2d 880, 883 (Tex.

App.— Houston [14th Dist.] 1992, no writ), and Pub. Util. Comm’n of Tex. v. Hous.

Lighting & Power Co., 778 S.W.2d 195 (Tex. App.—Austin 1989, no writ) (the latter

cited in Petitioner’s own Petition). The Offensive Use Doctrine holds that “[a] plaintiff

cannot use one hand to seek affirmative relief in court and with the other lower an iron

curtain of silence against otherwise pertinent and proper questions which may have a

bearing upon his right to maintain his action.” Ginsberg, 686 S.W.2d at 108; Hous.

Lighting & Power Co., 778 S.W.2d at 198-199.

b) the “Patient Litigant Exception” in Texas Rules of Evidence 509(e)(4) and 510(d)(5).

In amendments to the Texas Rules of Evidence, the Texas Supreme Court determined

that disclosure of physician-patient and mental health provider-patient communications

is excepted from protection as privileged, where the documents are relied on by any

party as a consequential part of the party’s claims or defenses. Tex. R. Evid. 509(e)(4)

& 510(d)(5).

c) the statutory disclosure authorization in Texas Health and Safety Code sections

611.004(a)(1) and 611.004(a)(11) acting together. The Legislature has determined

that where mental health records are sought in a judicial or administrative proceeding

where a court or agency has issued an order or subpoena for such records, disclosure is

required or authorized by law and a professional may disclose confidential information

OKONKWO’S 1ST SUPPLEMENTAL PTJ, RESPONSE, MTD & GENERAL DENIAL

Cause No. 2024-78536; In re Heiliger, et al. v. Okonkwo, et al. 5

to a governmental agency or the courts. Tex. Health & Safety Code §§ 611.004(a)(1)

and 611.004(a)(11).

The correct application of these principles confirms that Ms. Smith’s mental health records

are not privileged and, consequently, that the subpoena does not violate Mr. Heiliger’s

constitutionally-protected privilege rights. This, along with the mooting of Petitioner’s ultra vires

claim regarding the form of the first subpoena, leaves Ms. Okonkwo’s protection in her official

capacity under Sovereign Immunity intact and undefeated and leaves her protection in her

individual capacity under Official Immunity, Judicial Immunity, Quasi-Judicial Immunity, and

Statutory Immunity also intact, undefeated, and not overcome. Because the Division’s and Ms.

Okonkwo’s Sovereign Immunity in her official capacity is intact and Ms. Okonkwo’s immunities

in her individual capacity are also fully intact, the Court lacks jurisdiction and must dismiss

Petitioner’s claims against Ms. Okonkwo in this proceeding.

ARGUMENT

Sovereign Immunity

1) [P4 Par 13, 65]. Ms. Okonkwo’s is protected in her official capacity by

Sovereign Immunity as she argues in her Initial and First Amended Pleas to

the Jurisdiction. (PTJ)

Ms. Okonkwo, the remaining Division party, like her employer TDI-DWC, is protected by

Sovereign Immunity in her official capacity and is protected by Official Immunity, Judicial

Immunity, Quasi-Judicial Immunity, and Statutory Immunity in her individual capacity. Ms.

Okonkwo is an employee of the Department of Insurance, which, as a creature of the Legislature

and whose commissioner, appointed by the governor, is part of the executive branch. Tex. Ins.

Code § 31.022; Tex. Gov’t Code § 2004.001. Sovereign immunity has not been waived (nor have

any of the other applicable immunities discussed herein been waived). As noted in the Executive

OKONKWO’S 1ST SUPPLEMENTAL PTJ, RESPONSE, MTD & GENERAL DENIAL

Cause No. 2024-78536; In re Heiliger, et al. v. Okonkwo, et al. 6

Summary, Mr. Heiliger’s ultra vires claims and claim of denial of constitutionally-protected

privilege rights are without support and do not overcome or defeat this immunity. As stated above,

Mr. Heiliger’s ultra vires claims are moot and his claims of constitutionally-protected privileges

are without basis because, under the applicable legal principles, the documents are not privileged.

And, because Mr. Heiliger’s ultra vires claim is now moot and his claimed constitutionally-

protected documents are not privileged, there is no claim that overcomes or defeats Ms.

Okonkwo’s Sovereign Immunity (or her immunity under the other immunities that apply to her in

her individual capacity) leaving Ms. Okonkwo’s immunity undefeated and intact. Thus, the Court

lacks jurisdiction over this matter and the case must be dismissed.

Ultra Vires Claims

2) [P4 Par 13, 65]. There is no live ultra vires claim in this proceeding at this

juncture. Ms. Okonkwo’s Sovereign Immunity is not defeated or overcome by

Mr. Heiliger’s Ultra Vires claim, which is now moot. (PTJ)

Mr. Heiliger’s claim that Sovereign Immunity does not apply because of alleged ultra vires

acts is now in error. Mr. Heiliger’s ultra vires claim has become moot. Mr. Heiliger’s ultra vires

claims related entirely to the ALJ’s first subpoena, issued September 19, 2024. That subpoena

was withdrawn and vacated on February 18, 2025. A new subpoena was issued on January 27,

2025. The new subpoena resolved all the issues upon which Mr. Heiliger based his ultra vires

claims.

Because the first subpoena was vacated and replaced by the second subpoena that is not

subject to any ultra vires claims, there are now no remaining live ultra vires claims posed by Mr.

Heiliger and the ultra vires issues are moot. In the absence of the now mooted ultra vires claims

and, as discussed in paragraphs 6 through 8 below, in the absence of any valid constitutional claims

related to information that is not privileged, there are no claims that are adverse to, defeat, or

OKONKWO’S 1ST SUPPLEMENTAL PTJ, RESPONSE, MTD & GENERAL DENIAL

Cause No. 2024-78536; In re Heiliger, et al. v. Okonkwo, et al. 7

overcome Ms. Okonkwo’s Sovereign Immunity and other immunities. This leaves Ms.

Okonkwo’s Sovereign Immunity (and her other immunities) undefeated and intact, establishing

that the Court lacks jurisdiction. Lacking jurisdiction due to these Immunities, the Court must

dismiss all Petitioner’s claims against Ms. Okonkwo.

3) [P4 Par 9, 11, 15-19, 29-42, 64-68]. While, contrary to Petitioner’s claims, the

first subpoena (which has been withdrawn or vacated) was not ultra vires, the

second subpoena issued by Ms. Okonkwo does not invoke the same concerns

and Petitioner’s ultra vires claims are now moot.

As noted, the first subpoena was withdrawn and vacated. The second subpoena provides

expressly on its face that it relates to a deposition on a date certain. Thus, the second subpoena

fully complies with Texas Labor Code section 410.158(a) and 28 Texas Administrative Code

section 142.12. Petitioner’s ultra vires claims, which were lodged against the first subpoena are

not applicable to the second subpoena and, as a result of the order vacating the first subpoena, are

now moot.

The February 18, 2025, order vacating the first subpoena is attached. The second subpoena

was issued on January 27, 2025, in a form that clearly stated that it was a deposition subpoena and

included the date for disclosure. A copy of that subpoena is also attached. See Tex. Lab. Code §

410.158(a)(1). As these copies show, the second subpoena resolved Petitioner’s claims regarding

the form of the first subpoena.

4) [P4 Par 15-19; 64-68] The first subpoena was not ultra vires but if it were, it

has been withdrawn and vacated, rendering Mr. Heiliger’s claim on this issue

moot. (PTJ) (INJ) (M)

Even if the first subpoena had not been vacated and replaced, it was not ultra vires.

Petitioner complained about a minor matter of form under 28 Texas Administrative Code section

142.12—not an ultra vires violation of applicable authority. The rule in 28 Texas Administrative

Code section 142.12 does not expressly require that a subpoena declare that it is a deposition or

OKONKWO’S 1ST SUPPLEMENTAL PTJ, RESPONSE, MTD & GENERAL DENIAL

Cause No. 2024-78536; In re Heiliger, et al. v. Okonkwo, et al. 8

hearing subpoena. The rule requires that a subpoena direct the person to attend or to produce

evidence at a deposition (deposition subpoena) or at a hearing (hearing subpoena). The rule also

directs consideration of the context. It was evident from the procedural context that the first

subpoena sought production of evidence at the hearing, not at a deposition. The fact that

production at the hearing was required was indicated by the circumstances, including the fact that

the first subpoena was requested by the County on September 5, 2024, and issued by the ALJ on

or about September 19, 2024, for a hearing that was convened and recessed on September 25,

2024. There was no request for or notice of any deposition pending at the time.

The context of the requested first subpoena, at a time during the lead up to the hearing,

indicated that the subpoena was for production at the hearing (not at a deposition). Moreover, the

form of the subpoena was identical to the form of countless other subpoenas issued at the Division

over the years. When she issued the first subpoena, Ms. Okonkwo was not only following the

applicable rules in 28 Texas Administrative Code sections 142.2 and 142.12, but also long settled

Division practice.

Her issuance of the first subpoena was a minor matter of form, not an instance of exceeding

authority and was not ultra vires. Again, however, the second subpoena corrects any claimed

defects, whether they were or were not in fact defects. Thus, Petitioner’s claim that Ms. Okonkwo

acted ultra vires by issuing the first subpoena was and is without merit and is now moot and should

be rejected.

5) [P4 Par 9, 11, 15-19, 29-42, 64-68]. The first subpoena issued by Ms. Okonkwo

on September 19, 2024, has been withdrawn or vacated, leaving as moot the

ultra vires issues related to that subpoena claimed by Heiliger;

When Mr. Heiliger first raised his “ultra vires” claim, only the first subpoena had been

issued. Mr. Heiliger claimed that the ALJ’s issuance of the first subpoena was ultra vires because

OKONKWO’S 1ST SUPPLEMENTAL PTJ, RESPONSE, MTD & GENERAL DENIAL

Cause No. 2024-78536; In re Heiliger, et al. v. Okonkwo, et al. 9

it did not specify under 28 Texas Administrative Code section 142.12 whether it required

disclosure to be made in a hearing or deposition and did not provide the date for disclosure.

However, as noted, Mr. Heiliger’s claims were not only incorrect but are also now moot.

Again, on January 27, 2025, the ALJ issued the second subpoena which did expressly provide that

the subpoenaed records should be provided at a deposition and provided a date claimed to be

required. And on February 18, 2025, the ALJ withdrew and vacated the first subpoena. The

issuance of the second subpoena and the vacating of the first subpoena resolved and mooted Mr.

Heiliger’s ultra vires claims. Accordingly, Mr. Heiliger’s ultra vires claims do not defeat or

provide any basis for overriding, overcoming, or defeating Ms. Okonkwo’s Sovereign Immunity

in her official capacity or her Official Immunity, Judicial Immunity, Quasi-Judicial Immunity, and

Statutory Immunity in her individual capacity. Accordingly, the Court lacks jurisdiction and

should dismiss all claims against Ms. Okonkwo, both in her official and in her individual

capacities.

Constitutional Claims

6) [P4 Par 13, 65] Ms. Okonkwo’s Sovereign Immunity protection is not

overcome or defeated by Mr. Heiliger’s claim that the subpoena violates

Heiliger’s constitutional right to preserve his claims of privilege in his wife’s

mental health records. (PTJ)

Mr. Heiliger’s claim that Sovereign Immunity does not apply when constitutional rights

are at stake is not supportable. As discussed, under the Offensive Use Doctrine, the Patient Litigant

Exception codified in Texas Rules of Evidence 509(e)(4) and 510(d)(5), and in Texas Health and

Safety Code sections 611.004(a)(1) and 611.006(a)(11) the requested information is not privileged.

Because the documents are not privileged, there is no constitutional claim posed by Ms.

Okonkwo’s issuance of subpoenas compelling disclosure of the requested information and Mr.

Heiliger’s constitutional claims fail. In light of that failure and the mootness of his ultra vires claim,

OKONKWO’S 1ST SUPPLEMENTAL PTJ, RESPONSE, MTD & GENERAL DENIAL

Cause No. 2024-78536; In re Heiliger, et al. v. Okonkwo, et al. 10

Ms. Okonkwo’s Sovereign Immunity protection in her official capacity and her protection under

other immunities in her individual capacity are not overcome or defeated, establishing that the

Court lacks jurisdiction and indicating that the Court must dismiss the claims against Ms.

Okonkwo.

7) [P4 Par 9, 16, 43, -54] Mr. Heiliger’s claim that Ms. Smith’s mental health

records are privileged is incorrect. Under the three governing principles, the

records are not privileged. (PTJ) (INJ)

Ms. Smith’s mental health records are not privileged under the three governing principles

listed above:

a) Offensive Use Doctrine.

First, the information is not privileged under the Offensive Use Doctrine. Ginsberg, 686

S.W.2d at 107. The Offensive Use Doctrine is invoked because Mr. Heiliger is seeking an

affirmative benefit by seeking death benefits for Ms. Smith’s perishing, while at the same time

claiming that documents relevant to whether he should receive those benefits are privileged and

may not be disclosed. By pursuing mandamus and injunctive relief to protect records he claims to

be privileged, Petitioner is using the claimed privilege as a sword rather than as a shield and is

seeking affirmative relief in the contested case proceeding while at the same time denying the

County access to relevant, probative, and consequential evidence of a central issue of the case, to

wit, whether Ms. Smith’s death was caused in whole or in part by her long-term use of the

amphetamines Adderall and Vyvanse. The subpoenaed documents are consequential to the core

question of whether Petitioner is entitled to the claimed death benefits or whether the benefits must

be denied. Accordingly, they may not be treated as privileged under the Offensive Use Doctrine,

so long as Petitioner claims a privilege.

OKONKWO’S 1ST SUPPLEMENTAL PTJ, RESPONSE, MTD & GENERAL DENIAL

Cause No. 2024-78536; In re Heiliger, et al. v. Okonkwo, et al. 11

The Offensive Use Doctrine is well recognized in Texas. See e.g., Ginsberg, 686 S.W.2d

at 107; Westheimer, 831 S.W.2d at 883; and Hous. Lighting & Power Co., 778 S.W.2d at 197-99

(cited in Mr. Heiliger’s pleadings). In Ginsberg, Ms. Gaynier asserted a claim that information

sought was protected by the psychotherapist-patient privilege under Texas Rule of Evidence 510.

The Texas Supreme Court recognized that the justification for the privilege lay in the policy of

encouraging the full communication necessary for effective treatment of a patient by a

psychotherapist and that the protection against disclosure of confidences is primarily erected to

protect the patient against an invasion of his privacy. Ex Parte Abell, 613 S.W.2d 255 (Tex. 1981).

However, the Court noted that the claimant occupied a different position in relation to the

privilege she attempted to assert: that she had invoked the jurisdiction of the courts in search of

affirmative relief against Ginsberg; yet she would attempt, on the basis of privilege, to deny

Ginsberg the benefit of evidence which would materially weaken or defeat her claims against him.

This was an offensive, rather than defensive, use of the privilege, and it lay outside the intended

scope of Texas Rule of Evidence 510 and its predecessor. Ginsberg, 686 S.W.2d at 107.

A clearer example of the Offensive Use Doctrine described in Ginsberg could hardly be

imagined than the one in this case. Mr. Heiliger is seeking death benefits in the contested case

hearing at the Division. The subpoena issued was for relevant information relating to whether Ms.

Smith’s death was caused by her use or abuse of amphetamines, information that is relevant to the

issues of whether her death was caused by a compensable work injury or by some other cause

related to her use of amphetamines. Mr. Heiliger’s opposition to disclosure of the requested records

is an offensive use of the privilege, use of the privilege as a sword rather than as a shield, and one

that inequitably denies access to information that is necessary and consequential for the

determination of whether Mr. Heiliger request for death benefits should be approved or denied.

OKONKWO’S 1ST SUPPLEMENTAL PTJ, RESPONSE, MTD & GENERAL DENIAL

Cause No. 2024-78536; In re Heiliger, et al. v. Okonkwo, et al. 12

The issue here is similar to the one in Ginsberg. Here, as in Ginsberg (and as discussed in

Westheimer and Houston Lighting & Power Company) there has been a prohibited offensive use

of the privilege—again, the privilege has been used as a sword rather than as a shield. Here,

because Petitioner is seeking affirmative relief, his claim that the information is privileged violates

fundamental fairness. By seeking mandamus and injunctive relief, he seeks to prevent the County

from examining records that are likely to show whether the benefits should be granted or denied.

If he pursues mandamus or injunctive relief, which he has in his First, Second, Third, and Fourth

Amended Verified Petitions, the privilege is subject to waiver and his claim that Sovereign

Immunity is unavailing, and that the Division’s rules and statutes are unconstitutional, must fail.

Ginsberg, 686 S.W.2d at 107.

b) Patient Litigant Exception.

Second, the information is not privileged under the “Patient Litigant Exception” codified

by the Supreme Court in Texas Rules of Evidence 509(e)(4) and 510(d)(5), but, instead, is excepted

from privileged treatment under the Rules of Evidence. The Patient Litigation Exception was

placed at issue by Petitioner in his pleadings and by his citation of R.K., M.D. v. Ramirez and

Sections 509(e)(4) and 510(d)(5) of the Texas Rules of Evidence.

Texas Rules of Evidence 509(e)(4) and 510(d)(5) provide that medical or mental health

records are excepted from privileged protection if any party relies on the patient’s physical, mental,

or emotional condition as a part of the party’s claims or defenses and the communication or record

is relevant to that condition. Because Ms. Smith’s mental health records are relevant to and part

of the parties’ claims and defenses, as reflected in Mr. Heiliger’s Amended Verified Petitions and

in the County’s various pleadings, the material is not privileged and Mr. Heiliger’s claim that he

is being denied constitutional protection of the privilege has no foundation.

OKONKWO’S 1ST SUPPLEMENTAL PTJ, RESPONSE, MTD & GENERAL DENIAL

Cause No. 2024-78536; In re Heiliger, et al. v. Okonkwo, et al. 13

First, Ms. Smith’s records and notes are a consequential part of the County’s claims and

defenses against Mr. Heiliger’s application and for the County’s claims and defenses that Ms.

Smith’s death may have been caused in part by these medications. Next, for Mr. Heiliger, Ms.

Smith’s records are a consequential part of his defenses contesting the County’s claim that the

medications were a factor. Thus, the records contain communications that are a consequential part

of Mr. Heiliger’s and the County’s claims and defenses.

Because the records are a central issue in the fight between Mr. Heiliger and the County,

they are consequential, invoking Rules 509(e)(4) and 510(d)(5). And, because Ms. Smith’s mental

health records are part of both parties’ claims or defenses, under Texas Rules of Evidence 509(e)(4)

and 510(d)(5) the records are not privileged. Because the records are not privileged, the ALJ’s

issuance of a subpoena requiring them to be disclosed does not violate any constitutionally-

protected privilege. Petitioner’s constitutionally-protected rights have not been abridged and the

agency’s rules and the various statutes at issue are not unconstitutional, do not deprive Petitioner

of the right to due process of law, do not fail to provide an avenue for assertion or claim of

privilege, and do not fail to provide a basis for redress. Ms. Okonkwo’s Sovereign Immunity has

not been defeated or overcome by such claims and Ms. Okonkwo’s protection under Sovereign

Immunity and the other Immunities is intact, indicating that the Court lacks jurisdiction.

c) Health and Safety Code chapter 611.

Third, Ms. Smith’s mental health records are not privileged under Texas Health and Safety

Code sections 611.004(a)(1) and 611.006(a)(11), acting together. These statutory provisions

expressly allow disclosure when an administrative agency or court issues a subpoena or order for

mental health records in an administrative or judicial proceeding, thereby resolving any claim of

privilege against protection.

OKONKWO’S 1ST SUPPLEMENTAL PTJ, RESPONSE, MTD & GENERAL DENIAL

Cause No. 2024-78536; In re Heiliger, et al. v. Okonkwo, et al. 14

Section 611.004(a)(1) authorizes disclosure (thus removing any privilege) to a

governme

This text is long and has been trimmed here. Open the source document for the complete record.