                                Fourth Court of Appeals
                                       San Antonio, Texas
                                  MEMORANDUM OPINION
                                          No. 04-14-00123-CV

                                         Blanca HERNANDEZ,
                                               Appellant

                                                     v.

TEXAS DEPARTMENT OF INSURANCE, WORKERS’ COMPENSATION DIVISION,
 and Rod Bordelon Jr. in His Official Capacity as Commissioner of Workers’ Compensation,
                                         Appellees

                    From the 293rd Judicial District Court, Maverick County, Texas
                                 Trial Court No. 12-12-28082-MCV
                            Honorable Cynthia L. Muniz, Judge Presiding

Opinion by:       Marialyn Barnard, Justice

Sitting:          Karen Angelini, Justice
                  Marialyn Barnard, Justice
                  Patricia O. Alvarez, Justice

Delivered and Filed: July 30, 2014

AFFIRMED

           This is an appeal from a trial court’s order granting a plea to the jurisdiction and motion to

dismiss. Appellant Blanca Hernandez contends the trial court erred because the trial court has

jurisdiction to consider her claims for declaratory action against appellees, the Texas Department

of Insurance, Division of Workers’ Compensation and Rod Bordelon Jr., in his official capacity as

Commissioner of Workers’ Compensation. We affirm the trial court’s judgment.
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                                                BACKGROUND

        Appellant Blanca Hernandez was injured while employed by the Eagle Pass Independent

School District.      Hernandez filed a claim for compensation with the Texas Department of

Insurance – Division of Workers’ Compensation (“DWC”) based on her injuries. Her claim for

compensation was denied after a contested case hearing held by the DWC. The denial was

affirmed after review by an appellate panel of the DWC. Subsequently, Hernandez filed a petition,

seeking judicial review of the DWC’s decisions. Hernandez’s petition also sought a declaration

under the Uniform Declaratory Judgments Act (“UDJA”) that the DWC and Commissioner

Bordelon “abide by all clear and unambiguous language of the Texas’ Workers’ Compensation

Act and the DWC’s own rules in ruling upon a dispute.”

        In response to Hernandez’s petition, the DWC and Commissioner Bordelon filed a Plea to

the Jurisdiction and Motion to Dismiss based on sovereign immunity as to the declaratory

judgment action. The trial court granted the plea, and Hernandez subsequently perfected this

appeal. 1

                                                  ANALYSIS

        Hernandez raises a single issue on appeal, contending the trial court erred in granting the

DWC’s and Bordelon’s Plea to the Jurisdiction and Motion to Dismiss on the basis of sovereign

immunity. We disagree.

        In Texas, the doctrine of sovereign immunity deprives the trial court of subject-matter

jurisdiction for lawsuits in which the state or certain governmental units have been sued, unless

the state has consented to suit. Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 224

(Tex. 2004). A claim of sovereign immunity is properly asserted in a plea to the jurisdiction. City


1
 The portion of Hernandez’s petition seeking judicial review of the DWC’s decision was not the subject of the plea
and is not before us for review.

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                                                                                     04-14-00123-CV


of San Antonio v. De Miguel, 311 S.W.3d 22, 25 (Tex. App.—San Antonio 2010, no pet.). We

review the trial court’s ruling on a challenge to its subject matter jurisdiction de novo. Miranda,

133 S.W.3d at 228.

       Here, the plea to the jurisdiction challenged the trial court’s subject matter jurisdiction to

hear Hernandez’s UDJA claims.        The Texas Supreme Court recently held that “sovereign

immunity bars UDJA actions against the state and its political subdivisions absent a legislative

waiver.” Tex. Dep’t of Transp. v. Sefzik, 355 S.W.3d 618, 620 (Tex. 2011). Hernandez has not

directed the court to any legislation waiving the DWC’s immunity to the declaratory action brought

under the UDJA here. Accordingly, we overrule this portion of Hernandez’s issue and hold the

trial court did not err by granting the plea to the jurisdiction regarding the declaratory judgment

action brought against the DWC. See id.

       Hernandez directs this court to the supreme court’s decision in City of El Paso v. Heinrich

for the proposition that she can, in fact, bring a declaratory judgment action under the UDJA

against the DWC. 284 S.W.3d 366 (Tex. 2009). We disagree. The Sefzik decision specifically

held that “under Heinrich, sovereign immunity bars UDJA actions against the state and its political

subdivisions absent a legislative waiver.” Sefzik, 355 S.W.3d at 620 (interpreting Heinrich, 284

S.W.3d 366). Accordingly, Heinrich does not support Hernandez’s position.

       Nevertheless, the Heinrich decision is relevant to our analysis here because “Heinrich

clarified an area of law that had been unclear, namely, the intersection between the doctrine of

sovereign immunity and the ultra vires exception to it.” Id. Related to the doctrine of sovereign

immunity applied above regarding the DWC, is the ultra vires exception to the rule, under which

claims may be brought against a state official for non-discretionary acts unauthorized by law. See

id. In addition to seeking declaratory relief against the DWC, Hernandez also sought relief



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regarding the alleged actions of Commissioner Bordelon in his official capacity as commissioner

of the DWC.

       To fall within the ultra vires exception to sovereign immunity, the “suit must not complain

of a government officer’s exercise of discretion, but rather must allege, and ultimately prove, that

the officer acted without legal authority or failed to perform a purely ministerial act.” Heinrich,

284 S.W.3d at 372.        Here, Hernandez’s declaratory judgment action sought to compel

Commissioner Bordelon to “abide by all clear and unambiguous language of the Texas Workers’

Compensation Act and the DWC’s own rules in ruling upon a dispute.” (emphasis added).

Hernandez’s petition is clearly complaining of Commissioner Bordelon’s discretionary application

of the law to her claim for compensation from the DWC. Therefore, Hernandez has pled a claim

against Commissioner Bordelon in his official capacity that does not fall under the ultra vires

exception to sovereign immunity. See id. Accordingly, we overrule this portion of Hernandez’s

issue and hold the trial court did not err by granting the plea to the jurisdiction regarding the

declaratory action against Commissioner Bordelon.

       It is well established that when a plea to the jurisdiction is upheld on the basis of sovereign

immunity, the plaintiff is allowed the opportunity to replead if the defect can be cured. See Sefzik,

355 S.W.3d at 623; Bacon v. Tex. Historical Comm’n, 411 S.W.3d 161, 183 (Tex. App.—Austin

2013, no pet.). Having reviewed Hernandez’s pleadings, we hold she clearly did not seek to allege

ultra vires claims against Commissioner Bordelon, but rather sought a declaration that he be

required to follow the laws and rules applicable to DWC cases. Accordingly, this is not a “curable”

defect, but a choice of claim, and accordingly we hold there is no basis to permit Hernandez to

“cure.” See Sefzik, 355 S.W.3d at 623. The record reflects Hernandez disagrees with the exercise

of discretion in the processing and ultimate denial of her claim for compensation from the DWC.

This is apparent from the type of declaratory relief requested.
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                                                                         04-14-00123-CV


                                  CONCLUSION

Based on the foregoing, we affirm the judgment of the trial court.


                                             Marialyn Barnard, Justice




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