Petition for Writ of Certiorari — Eugenia Woodard, Petitioner v. Texas Department of Insurance, Division of Workers' Compensation, et al.

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Opinion issued August 29, 2023

In The

Court of Appeal#

For The

Jfirtft district of fEexatf

NO. 01-22-00761-CV

EUGENIA WOODARD, Appellant

V.

TEXAS DEPARTMENT OF INSURANCE, DIVISION OF WORKERS

COMPENSATION; CAPP ELECTRIC COMPANY; AND TEXAS

MUTUAL INSURANCE COMPANY, Appellees

On Appeal from the 157th District Court

Harris County, Texas

Trial Court Case No. 2022-15901

MEMORANDUM OPINION

After allegedly being injured while on the job at appellee CAPP Electric

Company, appellant Eugenia Woodard sought recovery of workers’ compensation

benefits. An Administrative Law Judge (“ALJ”) held a contested case hearing

between Woodard and appellee Texas Mutual Insurance Company (“Texas

Mutual”), CAPP Electric’s workers’ compensation insurance carrier, and

determined that Woodard was not an employee of CAPP Electric at the time of her

injury and therefore did not suffer a compensable injury. Woodard filed a petition

for judicial review against appellee the Texas Department of Insurance, Division of

Workers’ Compensation (“the Division”), and Texas Mutual later appeared in this

lawsuit. Texas Mutual moved for summary judgment on the grounds that Woodard

did not timely file her petition for judicial review. The Division filed a plea to the

jurisdiction based on sovereign immunity. The trial court granted both motions and

dismissed Woodard’s claims against Texas Mutual and the Division.

On appeal, Woodard, acting pro se, argues in two issues that the trial court

erred in dismissing her claims because (1) she was an employee of CAPP Electric

and therefore suffered a compensable injury and (2) CAPP Electric and Texas

Mutual’s negligence caused her injury. We affirm.

Background

Eugenia Woodard is a cleaning professional. In 2018, she started using an app

called “Handy,” which helps connect cleaning professionals with customers that are

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seeking cleaning services.1 CAPP Electric also started using Handy in 2018 after it

became dissatisfied with its prior cleaning company. In April 2018, Handy matched

Woodard with CAPP Electric.

Woodard arrived at CAPP Electric on April 27, 2018. She alleged that after

she started to clean that day, Wade Ingram, the president of CAPP Electric, offered

her a position as a cleaner directly with the company. She acknowledged that she did

not complete any paperwork relevant to accepting an employment offer. Ingram

denied that CAPP Electric ever made an employment offer to Woodard.

While Woodard was cleaning the men’s restroom at CAPP Electric, an

unknown employee allegedly pushed the cleaning cart that Woodard was using to

carry cleaning supplies. When the employee pushed the cart, the handle from a mop

or broom struck Woodard in the side and pushed her into a cabinet. Woodard

allegedly fractured a rib and injured her hip.

At the time of Woodard’s injury, Texas Mutual was CAPP Electric’s workers’

compensation insurance carrier. Woodard filed a workers’ compensation claim and

sought benefits from Texas Mutual, alleging that CAPP Electric was her employer.

Texas Mutual denied Woodard’s claim on the basis that CAPP Electric did not

Handy is owned and operated by Handy Technologies, Inc. Handy Technologies is

not a party to the underlying proceeding or to this appeal.

3

employ Woodard on the date of the injury. Woodard then pursued administrative

remedies, including a benefit review conference and a contested case hearing.

In August 2021, Woodard and Texas Mutual participated in a contested case

hearing before an ALJ. The two issues before the ALJ were (1) whether CAPP

Electric was Woodard’s employer; and (2) whether Woodard sustained a

compensable injury on April 27, 2018. Woodard and Ingram testified at the hearing.

The ALJ issued a decision on September 1,2021. In the decision, the ALJ stated that

he found Ingram’s testimony concerning Woodard’s employment status more

persuasive, and the ALJ ruled that CAPP Electric was not Woodard’s employer and

although she sustained an injury on April 27, 2018, she did not sustain a

compensable injury. The ALJ ordered that Texas Mutual was not liable to Woodard

for workers’ compensation benefits.

An appeals panel of the Division reviewed the ALJ’s decision at Woodard’s

request. On November 1, 2021, the Division notified Woodard and Texas Mutual

that the ALJ’s decision had become final as of that date. This notice informed

Woodard that if she was not satisfied with the decision, she must “file a lawsuit in

the appropriate district court not later than the 45th day after the date on which [the

Division] mailed the parties the decision of the Appeals Panel pursuant to Labor

Code, Section 410.252.”

4

Shortly thereafter,2 Woodard filed a “Petition for Personal Injury Damages”

and named CAPP Electric and Texas Mutual as defendants. This lawsuit was

assigned to the 61st District Court of Harris County. In this suit, Woodard asserted

a negligence cause of action against both CAPP Electric and Texas Mutual, and she

sought compensatory damages. Woodard did not mention the ALJ’s decision, and

she did not raise any challenges to that decision. Texas Mutual moved for summary

judgment, arguing that Woodard’s claim was barred by the statute of limitations.

The 61st District Court granted Texas Mutual’s summary judgment motion on

February 14, 2022.

Woodard filed a “Petition for Motion for Administrative Judicial Review,”

the underlying proceeding, on March 16, 2022. This lawsuit was assigned to the

157th District Court of Harris County. Woodard named the Division as the sole

defendant in this suit. In the petition, Woodard addressed the contested case hearing

and the ALJ’s decision. Woodard raised claims of judicial bias and challenged the

ALJ’s decision on grounds of “illegality, procedural unfaimess[,] and irrationality.”

Woodard requested that the Harris County District Clerk issue citation to the

Division.

Texas Mutual attached a copy of this petition to its motion for summary judgment

filed in the underlying proceeding. This copy was not file-stamped by the Harris

County District Clerk, but it did include a stamp indicating that it was received by

“general counsel” on November 15, 2021.

5

)

On April 26, 2022, Woodard filed a “Motion for Re-Hearing” in the

underlying proceeding. In addition to naming the Division as a defendant, this filing

also named Texas Mutual and CAPP Electric. Woodard requested that the court

“grant rehearing” of the ALJ’s decision and grant her “Impairment Income Benefits”

under Texas’s workers’ compensation regulations. She argued that the ALJ erred in

its decision; CAPP Electric was her employer; Texas Mutual denied her claim in bad

faith and in breach of the covenant of good faith and fair dealing; and the “Appeals

Panel did not consider the negligent acts of Texas Mutual in this claim.” Woodard

did not amend her petition to name Texas Mutual or CAPP Electric as defendants.

There is no indication that Texas Mutual and CAPP Electric were ever served with

process. The trial court denied Woodard’s motion for rehearing.

Woodard moved for summary judgment. In this motion, she argued that she

had been terminated from employment for filing a workers’ compensation claim.

She also argued that the ALJ’s decision “was [a] fatally flawed ruling on evidence

that stifle[d] one sides rights, abuse of discretion.” Woodard did not attach any

evidence to her motion.

Although Texas Mutual had not been named as a defendant in an amended

petition and it had not been served with process, it filed an answer in the underlying

proceeding. Texas Mutual then responded to Woodard’s summary judgment motion

and filed a cross-motion for summary judgment. In this motion, Texas Mutual

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argued that Woodard failed to file a timely petition seeking judicial review of the

ALJ’s decision because she did not file suit within 45 days of the date the Division

mailed the decision of the Appeals Panel. The trial court granted summary judgment

in Texas Mutual’s favor, dismissing Woodard’s claims against it with prejudice.

The Division filed a plea to the jurisdiction. The Division argued that the trial

court lacked subject-matter jurisdiction over claims against it because, as a

governmental unit, it enjoys sovereign immunity, and Woodard had not alleged facts

demonstrating a waiver of immunity under either the Texas Tort Claims Act or the

Texas Labor Code. The Division also argued that the Labor Code did not allow a

claimant to name it as a party in a suit for judicial review of an administrative

decision in a workers’ compensation case. It argued that Texas Mutual, as CAPP

Electric’s workers’ compensation insurance carrier, was the only party that Woodard

could have properly named as a defendant. The trial court did not immediately rule

on the Division’s plea to the jurisdiction.

In August 2022, Woodard moved to compel mediation. The trial court granted

this motion.

The Division then filed an amended plea to the jurisdiction, amended answer,

and motion to strike the mediation order. This amended plea asserted the same

grounds for dismissal that the Division had raised in its original plea to the

jurisdiction. In the amended answer portion of this filing, the Division raised the

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same statute of limitations argument that Texas Mutual had made in its summary

judgment motion: Woodard did not timely file her petition for judicial review

because she did not file within 45 days of the Division mailing the notice of the

Appeals Panel’s decision. The Division argued that “[bjecause Woodard’s suit for

judicial review is no less untimely against [the Division] than it was against [Texas

Mutual], this matter should be dismissed against [the Division] as it was against

[Texas Mutual].”

The trial court signed an order rescinding the referral to mediation and

granting the Division’s amended plea to the jurisdiction. The court dismissed

Woodard’s claims against the Division with prejudice. This appeal followed.

Appellate Jurisdiction

As an initial matter, we address whether the trial court rendered a final

judgment in this proceeding such that we have appellate jurisdiction over Woodard’s

appeal of the trial court’s order granting Texas Mutual’s summary judgment

motion.3 See State ex rel. Best v. Harper, 562 S.W.3d 1, 7 (Tex. 2018) (per curiam)

3

Civil Practice & Remedies Code section 51.014(a)(8) allows a party to appeal from

an interlocutory order that “grants or denies a plea to the jurisdiction by a

governmental unit as that term is defined in Section 101.001.” Tex. Civ. Prac. &

Rem. Code § 51.014(a)(8); id. § 101.001(3)(A) (defining “governmental unit” to

include “this state and all the several agencies of government that collectively

constitute the government of this state, including... all departments, bureaus,

boards, commissions, offices, agencies, councils, and courts”). Thus, even if the trial

court did not render a final judgment in this case, we have interlocutory appellate

jurisdiction over the portion of Woodard’s appeal challenging the trial court’s order

granting the Division’s amended plea to the jurisdiction.

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(“[W]e must consider issues affecting our jurisdiction sua sponte.”); City of Houston

v. Rhule, 417 S.W.3d 440, 442 (Tex. 2013) (stating that all courts have “affirmative

obligation” to determine whether court has subject-matter jurisdiction “regardless of

whether the parties have questioned it”).

Ordinarily, appellate courts only have jurisdiction over appeals from final

judgments and certain interlocutory orders that are made appealable by statute.

Bonsmara Nat. Beef Co., LLC v. Hart of Tex. Cattle Feeders, LLC, 603 S.W.3d 385,

390 (Tex. 2020). In cases in which a judgment is rendered without a conventional

trial on the merits, the judgment is not final unless (1) it actually disposes of every

pending claim and party, or (2) it clearly and unequivocally states that it finally

disposes of all claims and parties, even if it does not actually do so. In re

Guardianship ofJones, 629 S.W.3d 921, 924 (Tex. 2021) (per curiam). If the order

contains a “clear and unequivocal finality phrase” that disposes of the entire case,

the order is final, and the failure to actually dispose of all claims and parties renders

the order erroneous but not interlocutory. Id. (internal quotations omitted); see

Lehmann v. Har-Con Corp., 39 S.W.3d 191, 206 (Tex. 2001) (“A statement like,

‘This judgment finally disposes of all parties and all claims and is appealable’, would

leave no doubt about the court’s intention.”).

The Texas Supreme Court has addressed the finality of a judgment that

disposes of fewer than all defendants when not all defendants have been served. See

9

Youngstown Sheet & Tube Co. v. Penn, 363 S.W.2d 230, 232 (Tex. 1962). In Penn,

the plaintiff sued seven defendants. Id. Following a summary judgment proceeding,

the trial court entered a judgment disposing of the claims against six defendants. Id.

The record demonstrated that the remaining defendant had never been served with

citation and did not file an answer. Id. The Texas Supreme Court noted that nothing

in the record indicated that the plaintiff “ever expected to obtain service upon” the

remaining defendant. Id. The court held that “[i]n these circumstances the case

stands as if there had been a discontinuance as to [the remaining defendant], and the

judgment is to be regarded as final for the purposes of appeal.”4 Id. The Fourteenth

Court of Appeals has summarized Penn as a three-factor test providing that a

judgment is final for the purposes of appeal when: (1) the judgment expressly

disposes of some, but not all, defendants; (2) the only remaining defendants have not

been served or answered; and (3) nothing in the record indicates the plaintiff ever

expected to obtain service on the unserved defendants. Fair Oaks Hous. Partners,

LP v. Hernandez, 616 S.W.3d 602, 605 (Tex. App.—Houston [14th Dist.] 2020, no

pet.).

Here, Woodard filed her “Petition for Motion for Administrative Judicial

Review” and named the Division as the sole defendant. The appellate record reflects

The Texas Supreme Court later clarified that this holding in Penn was not overruled

by Lehmann. See M.O. Dental Lab v. Rape, 139 S.W.3d 671, 674-75 (Tex. 2004)

(per curiam).

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that Woodard requested service of citation on the Division. Woodard never filed an

amended petition naming additional defendants. However, she did file a “Motion for

Re-Hearing” that named the Division, Texas Mutual, and CAPP Electric as

respondents. In this motion, Woodard argued that the ALJ’s decision on the

compensability of her claim was erroneous. The record does not reflect that

Woodard requested service of citation on either Texas Mutual or CAPP Electric. The

trial court denied Woodard’s “Motion for Re-Hearing” prior to ruling on Texas

Mutual’s and the Division’s dispositive motions.

Texas Mutual argued in its summary judgment motion that it had not been

properly served in this proceeding, but it nevertheless appeared by filing an answer.

The trial court later‘granted Texas Mutual’s summary judgment motion. It also

granted the Division’s amended plea to the jurisdiction. These two orders disposed

of Woodard’s claims against both these parties.

As stated above, Woodard did not name CAPP Electric as a defendant in her

“Petition for Motion for Administrative Judicial Review.” To the extent CAPP

Electric became a party when Woodard named it as a respondent in her “Motion for

Re-Hearing,” the record indicates that the trial court has not disposed of any claims

against CAPP Electric, CAPP Electric has not been served, and CAPP Electric has

not answered. Additionally, nothing in the record indicates that Woodard expected

to obtain service on CAPP Electric. Although Woodard had requested service of

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citation on the Division, the record contains no request for service of citation on

CAPP Electric. We conclude that this case is governed by Penn, and in this

circumstance, “the case stands as if there had been a discontinuance as to [CAPP

Electric], and the judgment is to be regarded as final for the purposes of appeal.” See

363 S.W.2d at 232; Fair Oaks Hous. Partners, 616 S.W.3d at 605. We therefore

conclude that we have appellate jurisdiction over Woodard’s appeal of the trial

court’s order granting summary judgment in favor of Texas Mutual.

Summary Judgment

On appeal, Woodard argues that the trial court erred in rendering judgment

against her because (1) she sustained compensable injuries, (2) she was an employee

of CAPP Electric at the time of her injury, and (3) CAPP Electric’s negligence

caused her injuries. Texas Mutual argues that regardless of the merits of Woodard’s

claims, the trial court appropriately granted summary judgment because Woodard

did not timely file her suit for judicial review.

A.

Standard of Review

We review a trial court’s summary judgment ruling de novo. Odyssey 2020

Acad., Inc. v. Galveston Cent. Appraisal Dist., 624 S.W.3d 535, 540 (Tex. 2021).

To prevail on a traditional motion for summary judgment, the movant must show

that no genuine issue of material fact exists and that it is entitled to judgment as a

matter of law. Tex. R. Civ. P. 166a(c); Tarr v. Timberwood Park Owners Ass ’n, 556

12

S.W.3d 274, 278 (Tex. 2018). When the parties file cross motions for summary

judgment, each party bears the burden of establishing that it is entitled to judgment

as a matter of law. Tarr, 556 S.W.3d at 278 (quoting City of Garland v. Dallas

Morning News, 22 S.W.3d 351, 356 (Tex. 2000)). In that instance, if the trial court

grants one motion and denies the other, the reviewing court should determine all

questions presented and render the judgment the trial court should have rendered. Id.

(quoting City of Garland, 22 S.W.3d at 356).

When a plaintiff moves for summary judgment on her own claim, she must

conclusively prove all elements of her cause of action. Fallon v. Univ. of Tex. MD

Anderson Cancer Ctr., 586 S.W.3d 37,47 (Tex. App.—Houston [1st Dist.] 2019, no

pet.). When a defendant moves for traditional summary judgment, it must either

(1) disprove at least one essential element of the plaintiffs cause of action or

(2) plead and conclusively establish each essential element of an affirmative defense.

Id. If the movant satisfies its burden, the burden shifts to the nonmovant to raise a

fact issue precluding summary judgment. Lujan v. Navistar, Inc., 555 S.W.3d 79, 84

(Tex. 2018).

A fact issue exists if more than a scintilla of evidence establishes the existence

of the challenged element. Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex.

2004). More than a scintilla of evidence exists when the evidence rises to a level that

would enable reasonable and fair-minded people to differ in their conclusions. Id. at

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601 (quoting Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex.

1997)). When reviewing a summary judgment ruling, we take as true all evidence

favorable to the nonmovant, and we indulge every reasonable inference and resolve

any doubts in the nonmovant’s favor. Hillis v. McCall, 602 S.W.3d 436, 440 (Tex.

2020) (quoting Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex.

2005)).

B.

Whether Woodard Timely Filed Her Suitfor Judicial Review

A defendant moving for summary judgment on the affirmative defense of the

statute of limitations bears the burden to conclusively establish that defense.

Draughon v. Johnson, 631 S.W.3d 81, 88 (Tex. 2021) (quoting Exxon Mobil Corp.

v. Rincones, 520 S.W.3d 572, 593 (Tex. 2017)). The defendant must establish the

accrual date of the cause of action and that the plaintiff brought suit later than the

applicable limitations period, “i.e., that the statute of limitations has run.” Id. at 89

(internal quotations omitted); Diversicare Gen. Partner, Inc. v. Rubio, 185 S.W.3d

842, 846 (Tex. 2005).

The Texas Legislature first enacted the Texas Workers’ Compensation Act

(“the Act”) over a century ago to balance the competing interests of providing

compensation for injured employees and protecting employers from the costs of

litigation. Tex. Mut. Ins. Co. v. PHI Air Med., LLC, 610 S.W.3d 839, 843 (Tex.

2020); SeaBright Ins. Co. v. Lopez, 465 S.W.3d 637, 642 (Tex. 2015). This is a

14

“comprehensive” system “with specific benefits and procedures.” Liberty Mut. Ins.

Co. v. Adcock, 412 S.W.3d 492,495 (Tex. 2013). Under the Act, workers can recover

from subscribing employers without regard to the workers’ own negligence, while

the employer’s exposure to uncertain damage awards is limited. PHI Air Med., 610

S.W.3d at 843; SeaBright Ins., 465 S.W.3d at 642 (“The Act ultimately struck a

bargain that allows employees to receive a lower, but more certain, recovery than

would have been possible under the common law.”) (internal quotations omitted);

Tex. Mut. Ins. Co. v. Ruttiger, 381 S.W.3d 430, 450 (Tex. 2012) (stating that

“cornerstone provision” of Act is that injured employee receives workers’

compensation benefits “in exchange for the common law right to sue his employer

for negligence in the event of an on-the-job injury”). The Act provides the “exclusive

procedures and remedies” for claims that a workers’ compensation insurance carrier

has improperly investigated, handled, or settled a claim for benefits. In re Accident

Fund Gen. Ins. Co., 543 S.W.3d 750, 752 (Tex. 2017) (orig. proceeding) (per

curiam) (internal quotations omitted).

The Act contemplates that disputes between injured workers and insurance

carriers may arise, and it “provides a dispute resolution process consisting of four

possible steps.” Ruttiger, 381 S.W.3d at 437, 450. These steps are a benefits review

conference, a contested case hearing before an administrative law judge, review by

15

an administrative appeals panel, and judicial review. Id. at 437 (citing Tex. Labor

Code §§ 410.021,410.151, 410.202, 410.251).

If a party is dissatisfied with the decision of an ALJ following a contested case

hearing, the party may appeal that decision by filing a written request for appeal with

the appeals panel. Tex. Labor Code § 410.202(a). If, as here, the appeals panel

affirms the ALJ’s decision and does not issue a written decision of its own, the ALJ’s

decision becomes final and is the final decision of the appeals panel. Id.

§ 410.204(a), (c). The appeals panel’s decision regarding benefits is final absent a

timely appeal for judicial review. Id. § 410.205(a).

If a party has exhausted its administrative remedies and is aggrieved by a final

decision of the appeals panel, the party may seek judicial review of the decision. Id.

§410.251. The Act provides:

A party may seek judicial review by filing suit not later than the 45th

day after the date on which the division mailed the party the decision

of the appeals panel. For purposes of this section, the mailing date is

considered to be the fifth day after the date the decision of the appeals

panel was filed with the division.

Id. § 410.252(a). The “45-day deadline to seek judicial review of an appeals-panel

decision is mandatory.” Tex. Mut. Ins. Co. v. Chicas, 593 S.W.3d 284, 286 (Tex.

2019).

Here, Woodard and Texas Mutual participated in the dispute resolution

process concerning whether her April 2018 injury at CAPP Electric was

16

compensable and entitled her to workers’ compensation benefits. Following a

contested case hearing, the ALJ issued a written decision finding that Woodard was

not an employee of CAPP Electric and she did not sustain a compensable injury. The

ALJ issued this decision on September 1, 2021.

Woodard exercised her statutory right to appeal the ALJ’s decision to the

Division’s appeals panel. In a notice dated November 1, 2021, the appeals panel

informed Woodard and Texas Mutual that the ALJ’s decision “became final on the

date listed at the top of this notice.” The notice also stated: “If you are not satisfied

with this decision and desire to have the dispute resolved in court, then you must file

a lawsuit in the appropriate district court not later than the 45th day after the date on

which the Division of Workers’ Compensation mailed the parties the decision of the

Appeals Panel pursuant to Labor Code, Section 410.252.”

Under section 410.252(a), the “mailing date” in this case is November 6,2021,

or “the fifth day after the date the decision of the appeals panel was filed with the

division.” See Tex. Labor Code § 410.252(a). Thus, Woodard had until December

21, 2021, or “the 45th day after the date on which the division mailed the party the

decision of the appeals panel,” to file her suit for judicial review in the district court.

See id.\ Chicas, 593 S.W.3d at 286 (stating that 45-day deadline to seek judicial

review is mandatory). Woodard, however, did not file the underlying suit until

March 16, 2022, nearly three months after the statutory deadline.

17

We conclude that Woodard did not timely file her suit for judicial review of

the appeals panel’s decision. See Tex. Labor Code § 410.252(a); Chicas, 593

S.W.3d at 286. We hold that Texas Mutual conclusively established its affirmative

defense of limitations, and the trial court therefore correctly granted summary

judgment in favor of Texas Mutual. See Tex. Labor Code § 410.252(a); Draughon,

631 S.W.3d at 88-89.

Plea to the Jurisdiction

The Division argues that the trial court did not err by granting its amended

plea to the jurisdiction because sovereign immunity bars Woodard’s claims against

it.5

A.

Standard of Review

Sovereign immunity from suit protects the State of Texas against lawsuits for

damages unless the State consents to be sued. Gulf Coast Ctr. v. Curry, 658 S.W.3d

281, 283 (Tex. 2022). Immunity from suit presents a jurisdictional question of

whether the State has expressly consented to suit. Id. at 284. The plaintiff bears the

burden to affirmatively demonstrate that the trial court has jurisdiction, which

Labor Code section 410.252(a) is mandatory, but it is not jurisdictional. See Tex.

Mut. Ins. Co. v. Chicas, 593 S.W.3d 284, 291 (Tex. 2019). Although the question

whether Woodard timely filed her suit for judicial review applies equally to

Woodard’s claims against both Texas Mutual and the Division, the Division filed

only a plea to the jurisdiction, not a motion for summary judgment. We therefore

must address whether Woodard established a waiver of the Division’s sovereign

immunity.

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“encompasses the burden of establishing a waiver of sovereign immunity in suits

against the government.” Town of Shady Shores v. Swanson, 590 S.W.3d 544, 550

(Tex. 2019). “[A] statute shall not be construed as a waiver of sovereign immunity

unless the waiver is effected by clear and unambiguous language.” Tex. Gov’t

Code § 311.034.

A party challenging subject-matter jurisdiction may challenge the pleadings,

the existence of jurisdictional facts, or both. Alamo Heights Indep. Sch. Dist. v.

Clark, 544 S.W.3d 755, 770 (Tex. 2018). When the challenge is to the pleadings, we

must determine whether the plaintiff has alleged facts affirmatively demonstrating

subject-matter jurisdiction. Id. We construe the pleadings liberally in favor of the

plaintiff and look to the pleader’s intent. Tex. Dep’t ofParks & Wildlife v. Miranda,

133 S.W.3d 217, 226 (Tex. 2004).

If the pleadings do not contain sufficient facts to affirmatively demonstrate

jurisdiction but do not affirmatively demonstrate incurable defects in jurisdiction,

the issue is one of pleading sufficiency and the plaintiff should be afforded an

opportunity to amend. Id. at 226-27. If the pleadings affirmatively negate the

existence of jurisdiction, the trial court may grant a plea to the jurisdiction without

allowing the plaintiff an opportunity to amend. Id. at 227. Whether a court has

subject-matter jurisdiction and whether a pleader has alleged facts that affirmatively

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demonstrate subject-matter jurisdiction are both questions of law that we review de

novo. Id. at 226.

B.

Whether Woodard’s Claims Against the Division Are Barred by Sovereign

Immunity

Woodard does not point to a provision of the Labor Code that contains a

waiver of the Division’s immunity in suits for judicial review of an appeals panel

decision.6 See Childress v. Travelers Indem. Co., No. 03-21-00579-CV, 2022 WL

2542005, at *3 (Tex. App.—Austin July 8,2022, no pet.) (mem. op.) (“In the context

of a workers’ compensation benefits dispute, however, the Labor Code does not

provide a claimant with the right to sue the Division.”); Tex. Dep't of Ins., Div. of

Workers’Comp. v. Brumfield, No. 04-15-00473-CV, 2016 WL 2936380, at *3 (Tex.

App.—San Antonio May 18,2016, no pet.) (mem. op.) (concluding that in “absence

of a clear and unambiguous waiver of the Division’s immunity from [the injured

worker’s] claim for judicial review,” claim is barred by sovereign immunity).

6

In response to the Division’s appellate brief, Woodard cites Civil Practice and

Remedies Code section 101.021, part of the Texas Tort Claims Act, which provides

a limited waiver of sovereign immunity for certain tort actions. See Tex. Civ. Prac.

& Rem. Code § 101.021 (waiving immunity for claims of personal injury

proximately caused by (1) wrongful act, omission, or negligence of employee of

governmental unit acting within scope of employment if injury arises from operation

or use of motor-driven vehicle or equipment, or (2) condition or use of tangible

personal property or real property). Woodard did not—and cannot—allege in her

petition actions by the Division that fall within section 101.021’s waiver of

sovereign immunity.

20

As the Division points out, the parties to the dispute resolution process under

the Workers’ Compensation Act are generally the injured worker and the employer’s

insurance carrier. See Tex. Labor Code § 410.002 (“A proceeding before the

division to determine the liability of an insurance carrier for compensation for an

injury or death under this subtitle is governed by this chapter.”). Although the

Division plays a role in this process, this role is administrative and adjudicative. See,

e.g., id. § 402.001 (designating Texas Department of Insurance as “the state agency

designated to oversee the workers’ compensation system of this state” and

establishing Division “to administer and operate the workers’ compensation system

of this state”); Childress, 2022 WL 2542005, at *3 (“The Division is the agency

overseeing the workers’ compensation system and adjudicating workers’

compensation benefit disputes.”).

The Act allows an aggrieved party to challenge the appeals panel’s decision

regarding benefits by seeking judicial review in the district court. Tex. Labor Code

§§ 410.251-.252. The Act requires a party seeking judicial review to both “serve

any opposing party to the suit” and “provide a copy of the party’s petition to the

division,” the latter of which is a requirement for seeking judicial review. Id.

§ 410.253(a)-(b). The Act also allows the Division to intervene in a suit for judicial

review. Id. § 410.254. However, the Division is not required to intervene. See

Casaubon Firm v. Tex. Mut. Ins. Co., 657 S.W.3d 1, 10 (Tex. App.—El Paso 2021,

21

pet. denied) (stating that Act “is clearly designed to simply give [the Division] the

opportunity to intervene but does not require them to do so” and Act allows for

judicial review of Division decisions “without the need to name [the Division] as a

party”).

The statutory provision allowing the Division to intervene in a suit for judicial

review “does not expressly waive the State’s immunity,” and the Legislature’s

“consent to the State being a plaintiff is not consent to the State’s being sued as a

defendant.” Vanderweiff v. Tex. Dep’t ofIns.-Div. of Workers’ Comp., No. 05-1500195-CV, 2015 WL 9590769, at *4 (Tex. App.—Dallas Dec. 30,2015, pet. denied)

(mem. op.); see Childress, 2022 WL 2542005, at *3 (concluding that Labor Code

did not waive Division’s sovereign immunity in suit for judicial review of appeals

panel decision); Tex. Dep’t of Ins. v. Green, No. 01-15-00321-CV, 2016 WL

2745063, at *5 (Tex. App.—Houston [1st Dist.] May 10, 2016, pet. denied) (mem.

op.) (concluding that Division’s intervention in suit for judicial review did not waive

Division’s sovereign immunity for claims asserted against it).

Woodard has identified no portion of the Labor Code or any other statute that

clearly and unambiguously waives the Division’s sovereign immunity in a suit for

judicial review under Labor Code Chapter 410. We conclude that the Division was

not a proper defendant to Woodard’s suit for judicial review, and the Division

retained its sovereign immunity from suit. We hold that the trial court properly

22

granted the Division’s amended plea to the jurisdiction without allowing Woodard

an opportunity to amend her pleadings.

Because we hold that the trial court properly granted summary judgment in

favor of Texas Mutual on limitations grounds and properly granted the Division’s

amended plea to the jurisdiction on sovereign immunity grounds, we need not

address Woodard’s arguments concerning the merits of her suit for judicial review.

Conclusion

We affirm the orders of the trial court. All pending motions are denied.

April L. Farris

Justice

Panel consists of Chief Justice Adams and Justices Guerra and Farris.

23

Court of Appeals for the

First District of Texas at Houston

Order on Motion for Rehearing

Appellate case name:

Eugenia Woodard v. Texas Department of Insurance, Division of

Workers Compensation; CAPP Electric Company; and Texas Mutual

Insurance Company

Appellate case number:

01 -22-00761 -CV

Trial court case number: 2022-15901

Trial court:

157th District Court of Harris County

Date motion filed:

September 13, 2023

Party filing motion:

Appellant

It is ordered that the motion for rehearing is £3 DENIED HU GRANTED.

Judge’s signature: Is/ April L. Farris

□ Acting Individually [>3 Acting for the Court

The panel consists of Chief Justice Adams and Justices Guerra and Farris.

Date: October 3. 2023

Court of Appeals for the

First District of Texas at Houston

Order on Motion for En Banc Reconsideration

Appellate case name:

Eugenia Woodard v. Texas Department of Insurance, Division of

Workers Compensation; CAPP Electric Company; and Texas Mutual

Insurance Company

Appellate case number:

01 -22-00761 -CV

Trial court case number: 2022-15901

Trial court:

157th District Court of Harris County

Date motion filed:

September 13, 2023

Party filing motion:

Appellant

It is ordered that the motion for en banc reconsideration is [X] DENIED O GRANTED.

Judge’s signature: Is/ April L. Farris

I I Acting Individually [X] Acting for the Court

The En Banc Court consists of Chief Justice Adams and Justices Kelly, Goodman, Landau,

Hightower, Countiss, Rivas-Molloy, Guerra, and Farris.

Date: October 3.2023

',v *

APPENDIX C

Decision of State Supreme Court Denying Review

FILE COPY

RE: Case No. 23-0947

DATE: 1/26/2024

COA #: 01-22-00761-CV

TC#: 2022-15901

STYLE: WOODARD v. TEX. DEP'T OF INS., DIV. OF WORKERS COMP.

Today the Supreme Court of Texas denied the petition

for review in the above-referenced case.

EUGENIA

WOODARD

* DELIVERED VIA E-MAIL *

Additional material

from this filing is

available in the

Clerk's Office.