                                                                                  ACCEPTED
                                                                              03-14-00808-CV
                                                                                      6839427
                                                                   THIRD COURT OF APPEALS
                                                                              AUSTIN, TEXAS
                                                                          9/9/2015 9:58:14 AM
                                                                            JEFFREY D. KYLE
                                                                                       CLERK
                       NO. 03-14-00808-CV
                      In the Court of Appeals
                      Third District of Texas             RECEIVED IN
                                                     3rd COURT OF APPEALS
                           Austin, Texas                 AUSTIN, TEXAS
                                                     9/9/2015 9:58:14 AM

                         Rosendo Morales,              JEFFREY D. KYLE
                                                             Clerk
                                            Appellant,
                                 v.

            Texas Department of Insurance-Division of
            Workers’ Compensation and Commissioner
             Ryan Brannan, in his Official Capacity,
                                          Appellees.


From the District Court of Bell County, Texas, 146th District Court,
  No. 269, 135-B, Honorable Jack Weldon Jones, Judge Presiding

      BRIEF OF TEXAS MUTUAL INSURANCE COMPANY
       AS AMICUS CURAE IN SUPPORT OF APPELLEES



Mary Barrow Nichols                   R. Scott Placek
State Bar No. 01831600                State Bar No. 00784769
Shannon S. Pounds                     Matthew J. Foerster
State Bar No. 24011600                State Bar No. 24065238
Texas Mutual Insurance Company        Arnold & Placek, P.C.
6210 E. Hwy. 290                      203 E. Main St., Suite 201
Austin, Texas 78723                   Round Rock, Texas 78664
Telephone: (512) 224-2723             Telephone: (512) 341-7044
Facsimile: (512) 224-3214             Facsimile: (512) 341-7921
mnichols@texasmutual.com              splacek@arnoldplacek.com
spounds@texasmutual.com               mfoerster@arnoldplacek.com

  Attorneys for Amicus Curae, Texas Mutual Insurance Company


                                                  September 9, 2015
                                    TABLE OF CONTENTS

IDENTITY AND INTEREST OF AMICUS CURAE ...............................iii

INDEX OF AUTHORITIES ...................................................................... v

ARGUMENT ............................................................................................. 1

I.      Affirming dismissal of Morales’s declaratory judgment
        claim as advisory and redundant will advance the goals
        of judicial economy ........................................................................... 2

        A.      Morales sought meaningless advisory opinions
                under the UDJA ...................................................................... 3

        B.      Morales’s declaratory judgment claim is entirely
                redundant of his suit for judicial review ................................ 7

        C.      By affirming on these non-immunity grounds,
                the Court will narrow the remaining issues for
                trial and avoid the need to address them again
                in a second appeal ................................................................. 10

II.    The Court must address the redundancy of
       Morales’s declaratory judgment claim to determine
       whether he should have been given an opportunity
       to replead ......................................................................................... 11

III.    Morales’s assertion that this Court has authorized
        Texas Mutual to obtain redundant, declaratory relief
        against the DWC is wrong and misleading ................................... 12

CONCLUSION ........................................................................................ 15

CERTIFICATE OF SERVICE................................................................. 17

CERTIFICATE OF COMPLIANCE ........................................................ 18



                                                     ii
           IDENTITY AND INTEREST OF AMICUS CURAE

  Texas Mutual Insurance Company is a domestic insurance company

created by the legislature to guarantee the availability of workers’

compensation insurance to Texas employers. See Tex. Ins. Code ch. 2054.

No compensation was paid to Texas Mutual for preparing or filing this

brief. See Tex. R. App. P. 11(c).

  Plaintiff-Appellant, Rosendo Morales, brought identical claims under

the Uniform Declaratory Judgment Act against Texas Mutual and

Appellees, the Texas Department of Insurance, Division of Workers’

Compensation and Commissioner Ryan Brannan in his official capacity

(the   “DWC”),    regarding    how   impairment   ratings   in   workers’

compensation should be calculated generally. Both Texas Mutual and the

DWC filed pleas to the jurisdiction on the bases that Morales’s

declaratory judgment claims (1) sought advisory opinions and (2) were

redundant to Morales’s suit against Texas Mutual for judicial review. The

DWC’s plea also asserted a sovereign immunity defense. The trial court

granted both pleas to the jurisdiction without specifying the grounds.

Morales appealed the order granting the DWC’s plea pursuant to section

51.014(8) of the Texas Civil Practice and Remedies Code.



                                     iii
  Texas Mutual files this amicus brief in support of the DWC to address

in greater detail the non-immunity grounds supporting the trial court’s

order and why this Court should address them.




                                  iv
                                 INDEX OF AUTHORITIES
Cases
Beacon Nat’l Ins. Co. v. Montemayor, 86 S.W.3d 260
  (Tex. App.–Austin 2002, no pet.)............................................................ 7
Brinkley v. Texas Lottery Com’n, 986 S.W.2d 764
  (Tex. App.–Austin 1999, no pet.)............................................................ 6
Briscoe v. Goodmark Corp., 102 S.W.3d 714
  (Tex. 2003) ............................................................................................ 10
Cervantes v. New Hampshire Ins. Co., 04-12-00722-CV
  2013 WL 3486824 (Tex. App.–San Antonio
  July 10, 2013, pet. denied) ..................................................................... 8
Cincinnati Life Ins. Co. v. Cates, 927 S.W.2d 623
  (Tex. 1996). ............................................................................................. 2
Del Indus., Inc. v. Texas Workers’ Comp. Ins. Fund, 973 S.W.2d 743
 (Tex. App.–Austin 1998), aff’d, 35 S.W.3d 591 (Tex. 2000). .................. 2
Harvel v. Texas Dep’t of Ins.-Div. of Workers’ Comp., 13-14-00095-CV
  2015 WL 3637823 (Tex. App.–Corpus Christi
  June 11, 2015, no. pet. h.) .................................................... 8, 11, 12, 13
Hernandez v. Texas Dept. of Ins., Div. of Workers’ Comp.,
04-14-00123-CV, 2014 WL 3747306 (Tex. App.–San Antonio
  July 30, 2014, no pet.) ............................................................................ 8
Howell v. Texas Workers’ Comp. Com’n, 143 S.W.3d 416
  (Tex. App.–Austin 2004, pet. denied)................................................... 14
Med Ctr. Bank v. Fleetwood, 854 S.W.2d 278
 (Tex. App.–Austin 1993), writ denied (Sept. 29, 1993)........................ 10
Natural Gas Pipeline Co. of Am. v. Pool, 124 S.W.3d 188
  (Tex. 2003). ............................................................................................. 2
Patterson v. Planned Parenthood of Houston & Se. Texas, Inc.,
  971 S.W.2d 439 (Tex. 1998) .................................................................... 3




                                                     v
Rusk State Hosp. v. Black, 392 S.W.3d 88
  (Tex. 2012) ............................................................................................ 11
Tex. Ass’n of Bus. v. Texas Air Control Bd., 852 S.W.2d 440
  (Tex. 1993) ...................................................................................... 3, 6, 7
Tex. Dep’t of Ins., Div. of Workers’ Comp. v. Lumbermens Mut.
 Cas. Co., 212 S.W.3d 870 (Tex. App.–Austin 2006, pet. denied). .......... 5
Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217
  (Tex. 2004). ........................................................................................... 12
Tex. Dep’t of Pub. Safety v. Moore, 985 S.W.2d 149
  (Tex. App.–Austin 1998, no pet.)........................................................ 3, 4
Tex. Dep’t of State Health Servs. v. Balquinta, 429 S.W.3d 726
  (Tex. App.–Austin 2014, pet. dism’d). .................................................... 7
Texas Mutual v. Texas Dept. of Ins., Div. of Workers’ Comp,
  214 S.W.3d 613 (Tex. App.–Austin 2006, no pet.) ............................... 13
Texas Workers’ Comp. Ins. Fund v. Texas Workers’ Comp. Com’n &
 Watts, 124 S.W.3d 813, 822-23 (Tex. App.–Austin 2003
  pet. denied). ........................................................................................... 15

Statutes
Tex. Admin. Code § 130.1(a) ..................................................................... 7
Tex. Lab. Code § 401.011(23) ................................................................ 4, 6
Tex. Lab. Code § 401.011(30). ................................................................... 4
Tex. Lab. Code § 408.123 .......................................................................... 7
Tex. Lab. Code § 408.124 .......................................................................... 5
Tex. Lab. Code § 410.251 .......................................................................... 8




                                                     vi
                              ARGUMENT

     The Court should affirm dismissal of Morales’s declaratory
     judgment claim on the grounds that it seeks advisory opinions
     and relief redundant to his judicial review action.

  This interlocutory appeal presents three jurisdictional questions: (1)

is the DWC immune? (2) is Rosendo Morales’s claim under the Uniform

Declaratory Judgment Act (“UDJA”) redundant of his judicial review

suit? and (3) do Morales’s declaratory judgment claims seek advisory

opinions? Sovereign immunity aside, this Court should address the

remaining jurisdictional issues for two reasons.

  First, resolving all jurisdictional defects now will advance the

interests of judicial economy by avoiding the need for a second appeal. If

the Court affirms only on immunity grounds, then it would leave open

the questions of whether the declaratory judgment claims are advisory

and redundant, and Morales would have to file a traditional appeal to

obtain review of the order dismissing his declaratory judgment claim

against Texas Mutual.

  Second, even if the Court finds that Morales’s declaratory judgment

claim against the DWC is barred by immunity, the Court must address

whether it was redundant of his judicial review claim when the Court



                                    1
decides whether Morales should have been given an opportunity to

replead.

     Texas Mutual dedicates the remainder of its brief to correcting

Morales’s mischaracterization of other cases in which Texas Mutual

sought declaratory relief. None of those cases involved claims or

circumstances like Morales’s.

I.     Affirming dismissal of Morales’s declaratory judgment claim as
       advisory and redundant will advance the goals of judicial economy.

     In the interest of judicial economy, appellate courts should consider all

grounds for dismissal that were preserved for review. Cincinnati Life

Ins. Co. v. Cates, 927 S.W.2d 623, 625 (Tex. 1996). Judicial economy

“require[s] that dispositive issues must be considered and resolved and

that a judgment moving the case to the greatest degree of finality must

be rendered.” Natural Gas Pipeline Co. of Am. v. Pool, 124 S.W.3d 188,

201 (Tex. 2003). This Court has recognized its obligation to dispose of as

many issues and claims as possible while a case is on appeal. Del Indus.,

Inc. v. Texas Workers’ Comp. Ins. Fund, 973 S.W.2d 743, 748 (Tex. App.–

Austin 1998), aff’d, 35 S.W.3d 591 (Tex. 2000). The Court should

discharge that obligation by deciding the two jurisdictional questions

that will continue to haunt Morales and Texas Mutual when this


                                       2
litigation recommences in the trial court, saving the parties significant

time and resources.

      A.    Morales sought meaningless advisory opinions under the
            UDJA.

    The trial court correctly dismissed Morales’s declaratory judgment

claims because they sought meaningless declarations unconnected to any

specific person or concrete dispute. See Tex. Dept. of Pub. Safety v.

Moore, 985 S.W.2d 149, 153 (Tex. App.–Austin 1998, no pet.) (holding

that the declaratory judgment sought must resolve a justiciable

controversy as to the rights and status of the parties). Declarations that

address abstract questions of law without binding the parties constitute

advisory opinions, which are constitutionally prohibited. 1 Texas Ass’n of

Bus. v. Texas Air Control Bd., 852 S.W.2d 440, 444 (Tex. 1993). Judicial

time and resources must be conserved for real and current controversies,

rather than abstract, hypothetical, or remote disputes. Patterson v.

Planned Parenthood of Houston & Se. Texas, Inc., 971 S.W.2d 439, 443

(Tex. 1998).



1 The DWC framed this issue as one of ripeness. See Appellees’ Brief at 22-23. The
“constitutional roots” of the ripeness doctrine are the prohibition against advisory
opinions and the separation of powers doctrine. Patterson v. Planned Parenthood of
Houston & Se. Texas, Inc., 971 S.W.2d 439, 442-43 (Tex. 1998).

                                         3
    Morales sought vague declarations that lacked any substantive

content to guide the parties or others. Taken from his amended petition,

Morales asked the trial court to declare:

    1. that spine impairment ratings under the Texas Workers’ Compensation Act
       must take into consideration spinal surgeries and the effects of spinal surgeries
       when the surgeries occur prior to maximum medical improvement;

    2. that under Texas Labor Code Section 401.011 and Chapter 408 concerning
       impairment ratings that the DWC designated doctor’s report is legally invalid
       because while clearly aware [of] the pre-MMI2 surgery [he] completely
       ignored the serious type of spinal fusion surgery; and

    3. that an “impairment” must be from an examination done after MMI has been
       reached and must be based upon the doctor’s evaluation of the injured
       workers’ condition after MMI including full consideration of the surgeries and
       the effects of surgery prior to MMI being reached.

    Those declarations fail to address or resolve a justiciable controversy.

See Moore, 985 S.W.2d at 153. Texas law already provides that an

employee’s “impairment”—any anatomic or functional abnormality or

loss resulting from a compensable injury that reasonably appears to be

permanent—must be based on the employee’s condition existing after

maximum medical improvement. See Tex. Lab. Code § 401.011(23).




2 MMI refers to maximum medical improvement, defined as “the earliest date after
which, based on reasonable medical probability, further material recovery from or
lasting improvement to an injury can no longer reasonably be anticipated.” Tex. Lab.
Code § 401.011(30).


                                           4
     No portion of the statute or related rules limits the ability of a doctor

to consider the effects of a pre-MMI surgery when rating impairment. No

party contends that the doctor may not consider such surgical effects.

Morales could not point to any decision, order, advisory, or action by the

DWC or by Texas Mutual that indicates otherwise. Indeed, Texas Mutual

contends that Morales’s spinal surgery was successful and reduced what

his impairment might otherwise have been without it. Morales’s real

complaint is how the effects of his own surgery were considered by the

designated doctor in his case, a dispute that will be resolved entirely

through his claim for judicial review. 3

     Multiple factors affect how a doctor might consider the effects of

surgery when rating impairment. Recognizing the fact-intensive nature

of impairment, the Legislature adopted the American Medical

Association’s Guides to the Evaluation of Permanent Impairment, which

all doctors must follow to determine impairment in workers’

compensation claims. Tex. Lab. Code § 408.124. Not even the DWC has

authority to modify those guidelines or provide alternate assessment

standards through advisories or rules. See Tex. Dep’t of Ins., Div. of



3   See Infra, § B.

                                       5
Workers’ Comp. v. Lumbermens Mut. Cas. Co., 212 S.W.3d 870 (Tex.

App.–Austin 2006, pet. denied). Neither may the courts through the

UDJA.

  Even if an actual controversy existed in this case over whether the

effects of surgery may be considered, the declarations Morales seeks

would not resolve it. On their face, the declarations are hypothetical and

abstract, detached from any concrete facts, circumstances or legal

realities. Declaring that the effects of a surgery must be “considered”

would tell the next doctor merely to think carefully about the employee’s

physical condition at the time of the evaluation—nothing more than what

the statute already requires. See Tex. Lab. Code § 401.011(23).

  Morales’s requested declarations are advisory because they merely

declare abstract propositions of law without granting specific relief to a

litigant or affecting legal relations. See Texas Ass’n of Bus., 852 S.W.2d

at 444; Brinkley v. Texas Lottery Com’n, 986 S.W.2d 764, 767 (Tex. App.–

Austin 1999, no pet.). He does not challenge the validity of any law or ask

for a determination of his own rights or status. Morales would have the

trial court instruct unnamed persons on how to perform impairment

ratings in the future, unrelated to any concrete impairment-rating



                                    6
dispute. Such declarations would not bind the parties or even the doctors

who perform impairment ratings. 4

      The trial court lacks subject-matter jurisdiction over Morales’s

declaratory judgment claim because it seeks an advisory opinion. See

Texas Ass’n of Bus., 852 S.W.2d at 444. The trial court properly dismissed

it.

        B.   Morales’s declaratory judgment claim is entirely redundant of
             his suit for judicial review.

      The power of courts to issue declaratory judgments in the face of

administrative proceedings is limited. Beacon Nat’l Ins. Co. v.

Montemayor, 86 S.W.3d 260, 267 (Tex. App.–Austin 2002, no pet.). Under

the redundant remedies doctrine, when a plaintiff “has invoked a

statutory means of attacking an agency order, a trial court lacks

jurisdiction over an additional claim under the UDJA that would merely

determine the same issues and provide what is substantively the same

relief that would be provided by the other statutory remedy.” Tex. Dep’t

of State Health Servs. v. Balquinta, 429 S.W.3d 726, 746 (Tex. App.–



4Only doctors may perform impairment ratings, but Morales did not make any doctor
a party to his declaratory judgment claim. See Tex. Lab. Code § 408.123; 28 Tex.
Admin. Code § 130.1(a). Thus, Morales’s proposed declaratory relief would not even
bind the persons who assign impairment ratings.


                                        7
Austin 2014, pet. dism’d). If Morales’s declarations would give him any

tangible relief at all, that relief would be redundant of his suit for judicial

review, which is the final step in the statutory process for resolving

workers’ compensation disputes, and which is still pending at the trial

court. See Tex. Lab. Code § 410.251, et seq.

   Texas courts have barred redundant declaratory relief in a string of

recent judicial review cases brought by workers’ compensation claimants.

See, e.g., Harvel v. Texas Dep’t of Ins.-Div. of Workers’ Comp., 13-14-

00095-CV, 2015 WL 3637823, at *1, 4 (Tex. App.–Corpus Christi June

11, 2015, no. pet. h.) (dismissing UDJA claim regarding when police

officers generally should be considered in the course and scope of

employment); Hernandez v. Texas Dept. of Ins., Div. of Workers’ Comp.,

04-14-00123-CV, 2014 WL 3747306, at *2 (Tex. App.–San Antonio July

30, 2014, no pet.) (dismissing UDJA claim that the DWC abide by the

Workers’ Compensation Act and DWC rules); Cervantes v. New

Hampshire Ins. Co., 04-12-00722-CV, 2013 WL 3486824, at *2 (Tex.

App.–San Antonio July 10, 2013, pet. denied) (holding that claimant’s

UDJA claim and the grounds on which he sought judicial review were

directed at his challenge to the validity of the doctor’s impairment rating



                                      8
certification, which claimant contended did not comply with applicable

rules). 5

     Morales’s declaratory judgment claims are redundant of his judicial

review suit.       He does not attempt to demonstrate otherwise. Each

declaration requested merely restates an argument Morales made before

the DWC to obtain a higher impairment rating. The trial court will fully

resolve that dispute through the judicial review process provided in

Chapter 410 of the Labor Code. Judicial review gives Morales the right

to seek (1) reversal of the DWC’s order and (2) the award of a different,

valid impairment rating. None of Morales’s declarations would give him

any additional relief. As is clear from three very recent appellate

decisions, the redundant remedies doctrine prevents courts from

expanding their jurisdiction to award unnecessary declaratory relief.




5   Morales’s counsel, Bradley D. McClellan, was also the attorney for the plaintiff in
Harvel. Mr. McClellan currently represents other claimants seeking declaratory
relief in workers’ compensation judicial review cases pending in the Fifth Court of
Appeals, VanderWerff v. Texas Dep’t of Ins.-Div. of Workers’ Comp., No. 05-15-00195-
CV, and in the First Court of Appeals, Texas Dep’t of Ins.-Div. of Workers’ Comp. v.
Green, No. 01-15-00321-CV.

                                            9
     C.    By affirming on these non-immunity grounds, the Court will
           narrow the remaining issues for trial and avoid the need to
           address them again in a second appeal.

  Affirming the trial court’s order based on the non-immunity

jurisdictional defects will serve the interests of judicial economy,

establish law of the case, and eliminate a second, unnecessary appeal of

the order dismissing Morales’s declaratory judgment claim against Texas

Mutual. The “law of the case doctrine” is used to narrow the legal issues

at successive stages of the litigation and provide uniformity of decisions

as well as judicial economy intended to put an end to litigation. Briscoe

v. Goodmark Corp., 102 S.W.3d 714, 716 (Tex. 2003); Med Ctr. Bank v.

Fleetwood, 854 S.W.2d 278, 283 (Tex. App.–Austin 1993), writ denied

(Sept. 29, 1993). This case favors the Court resolving all three

jurisdictional issues while reviewing the appealed order.

  Both the advisory opinion and redundant-remedy issues were briefed

and argued by the parties at the trial court, and they are preserved in

the record. By addressing whether Morales’s declaratory judgment claim

is barred on those grounds, the Court will save Morales from having to

file a second appeal after final judgment to obtain review of the order

dismissing his identical declaratory judgment claims against Texas



                                   10
Mutual. Wherever possible, appellate courts must decide issues that will

save the time and expense inherent in a second, unnecessary appeal of

the same jurisdictional issues. See Rusk State Hosp. v. Black, 392 S.W.3d

88, 101-02 (Tex. 2012) (Hecht, J., concurring) (“Because an appellate

court can decide an immunity issue beyond the scope of an interlocutory

appeal, and there are reasons why it should, I agree with the Court that

it must do so unless, as in this case, the record has not been sufficiently

developed.”) (emphasis in orig.).

      The posture of this case gives the Court an ideal opportunity to

conserve additional time and expense by affirming the trial court’s order

of dismissal on the non-immunity grounds presented and preserved by

the parties. The Court should hold that Morales’s declaratory judgment

claim seeks advisory opinions and relief that is entirely redundant of his

pending action for judicial review.

II.     The Court must address the redundancy of Morales’s declaratory
        judgment claim to determine whether he should have been given
        an opportunity to replead.

      Independent of prudential concerns, the Court must address whether

Morales’s declaratory judgment claim is redundant to determine whether

he should have been given an opportunity to replead. See Harvel, 2015



                                      11
WL 3637823, at *4. If a jurisdictional defect may be cured, the plaintiff

is generally afforded an opportunity to replead. Texas Dept. of Parks &

Wildlife v. Miranda, 133 S.W.3d 217, 226-27 (Tex. 2004). But when the

pleadings affirmatively negate jurisdiction by seeking redundant relief,

then the defect is not curable and outright dismissal is appropriate. Id.

at 227; Harvel, 2015 WL 3637823, at *4.

  In Harvel, the court determined it would not afford the claimant an

opportunity to replead because the relief requested under the UDJA

“mirrors the relief he requested in the suit for judicial review.” Id. His

suit for judicial review and his declaratory judgment claims sought the

same rulings: (1) that a peace officer is in the course and scope of his

employment as soon as he witnesses an illegal act, and (2) that employer-

directed travel includes travel from the employee’s home to a specially-

assigned work location. Id. Because the claimant would receive the same

relief in either suit—reversal of the final order denying him workers’

compensation benefits—the duplicative nature of his UDJA claim

“affirmatively negated jurisdiction.” Id.

  The same redundancy analysis is required here. The Court should

perform the redundancy analysis and hold that Morales’s declaratory



                                    12
judgment claim, as redundant to his suit for judicial review, affirmatively

negated jurisdiction. See id.

III.   Morales’s assertion that this Court has authorized Texas Mutual to
       obtain redundant, declaratory relief against the DWC is wrong and
       misleading.

   Morales grossly mischaracterizes three cases involving declaratory

judgment claims against the DWC brought by Texas Mutual or other

carriers. See Appellant’s Br. 19-24. Those cases do not apply to the facts

in this case, and they do not stand for the proposition urged by Morales

that carriers’ declaratory judgment claims are always permissible

against the DWC. Two of the cases—Texas Mutual and Howell—were not

even judicial review cases. And in the third, Watts, this Court never

examined the subject-matter jurisdiction of the declaratory judgment

claim.

   The least relevant case, Texas Mutual v. Texas Dept. of Ins., Div. of

Workers’ Comp, involved Texas Mutual’s action for declaratory judgment

that it had no duty to defend or indemnify a policyholder under an

Employers’ Liability Insurance policy. 214 S.W.3d 613 (Tex. App.–Austin

2006, no pet.). Because the declaratory judgment claim did not pertain in

any way to workers’ compensation benefits, it was not redundant to any



                                    13
statutory mechanism for relief. Moreover, Texas Mutual’s UDJA claim

did not seek the mere construction of a statute, unconnected with a

concrete dispute, as Morales does here.

  Morales also argues that Howell, another case not involving judicial

review, supports finding jurisdiction for his declaratory judgment action.

In Howell, the Court held that the declaratory judgment in favor of Texas

Mutual and other parties was not advisory because it declared that the

medical fee dispute rules were constitutional and that the plaintiffs, a

chiropractor and his clinic, must follow those agency rules and

procedures before suing carriers in district court. Howell v. Texas

Workers’ Comp. Com’n, 143 S.W.3d 416, 441 (Tex. App.–Austin 2004, pet.

denied). Morales’s UDJA claim, by contrast, does not address a dispute

over the constitutionality or validity of any statute or rule.

  Finally, although Texas Mutual’s predecessor (the Fund) did seek

judicial review against a claimant and declaratory relief against the

DWC in Watts, that case is distinguishable for two reasons. First, unlike

Morales’s UDJA action, the Fund claimed that the agency’s appeals panel

exceeded its statutory authority by setting aside a hearing officer’s

decision on factual sufficiency grounds. Texas Workers’ Comp. Ins. Fund



                                     14
v. Texas Workers’ Comp. Com’n & Watts, 124 S.W.3d 813, 822-23 (Tex.

App.–Austin 2003, pet. denied). But here, Morales does not assert that

the DWC exceeded its authority in any respect Second, the Court

rendered judgment against the Fund on both claims without addressing

whether the trial court had jurisdiction over the UDJA action. Id. at 822-

24. Morales’s suggestion that this Court expressly “allowed” the Fund “to

bring a declaratory judgment action against the injured worker and the

Texas Workers’ Compensation Commission,” or held that it was “proper”

to do so in judicial review suits generally, is wrong and misleading.

Appellant’s Br. at 18-19.

  Unlike the UDJA claims in the above cases, Morales does not

challenge the validity of a rule or the DWC’s authority to take a specific

action. Morales cites no case, because none exists, holding that a court

has subject-matter jurisdiction to issue a declaratory judgment that does

not award the requesting party any relief beyond a particular workers’

compensation claim.

                             CONCLUSION

  Even if this Court decides that the DWC’s sovereign immunity bars

Morales’s declaratory judgment claim, the Court also should hold that



                                   15
Morales’s declaratory judgment claims improperly seek advisory

opinions and are redundant of his pending action for judicial review

against Texas Mutual. Those jurisdictional issues are squarely before

this Court. Deciding them now will give clarity to the remaining parties,

narrow the issues for trial, and avoid the need to litigate them again in a

traditional appeal of the order granting Texas Mutual’s plea to the

jurisdiction.

                                    Respectfully submitted,

                                    ARNOLD & PLACEK, P.C.
                                    203 East Main Street, Suite 201
                                    Round Rock, Texas 78664
                                    Telephone: (512) 341-7044
                                    Facsimile: (512) 341-7921

                              By:     /s/ R. Scott Placek
                                    R. SCOTT PLACEK
                                    State Bar No. 00784769
                                    splacek@arnoldplacek.com
                                    MATTHEW J. FOERSTER
                                    State Bar No. 24065238
                                    mfoerster@arnoldplacek.com




                                     16
                                   TEXAS MUTUAL INSURANCE CO.
                                   Mary Barrow Nichols
                                   State Bar No. 01831600
                                   mnichols@texasmutual.com
                                   Shannon S. Pounds
                                   State Bar No. 24011600
                                   spounds@texasmutual.com

                                   ATTORNEYS FOR TEXAS MUTUAL
                                   INSURANCE COMPANY


                      CERTIFICATE OF SERVICE

   I certify that a true and correct copy of Texas Mutual’s Amicus Curae
Brief in Support of Appellees was served electronically on counsel of
record via e-mail and ProDoc eService on September 9, 2015.

Bradley Dean McClellan
Of Counsel, Law Offices of Richard Pena, P.C.
1701 Director’s Blvd., Suite 110
Austin, Texas 78744
Telephone: (512) 327-6884
Facsimile: (512) 327-8354
Email: brad.mcclellan@yahoo.com

Adrienne Butcher
Office of the Attorney General
P.O. Box 12548, Capitol Station (MC-018)
Austin, Texas 78711-2548
Telephone: (512) 463-1410
Facsimile: (512) 474-2697
Email: adrienne.butcher@texasattorneygeneral.gov


                                     /s/ Matthew J. Foerster




                                    17
                  CERTIFICATE OF COMPLIANCE

1. This brief complies with applicable length limitations under Tex. R.
   App. P. 9.4(i) because it contains 4,230 words as calculated using the
   “word count” feature of Microsoft Word 2013.

2. This petition has been written in a proportionately spaced typeface
   (Century), size 14-point in the body text and 12-point in footnotes, in
   compliance with Tex. R. App. P. 9.4(e).


                                   /s/ Matthew J. Foerster




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