      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-07-00171-CV



      Texas Department of Insurance, Division of Workers’ Compensation, Appellant

                                                  v.

                The Insurance Company of the State of Pennsylvania, Appellee


     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 261ST JUDICIAL DISTRICT
     NO. D-1-GN-04-003939, HONORABLE LORA J. LIVINGSTON, JUDGE PRESIDING



                                DISSENTING OPINION


                I respectfully dissent from the majority’s opinion because I believe we should dismiss

this cause for lack of jurisdiction.

                “Declaratory relief is not available for the interpretation of a prior judgment.” Rapid

Settlements, Ltd. v. SSC Settlements, LLC, 251 S.W.3d 129, 140 (Tex. App.—Tyler 2008, no pet.).

While one Texas appellate court has disagreed with this notion, see Beadle v. Bonham State Bank,

880 S.W.2d 160, 162 (Tex. App.—Texarkana 1994), aff’d in part and rev’d in part on other

grounds, 907 S.W.2d 465 (Tex. 1995), “the majority [of Texas courts] hold that declaratory relief

is an inappropriate vehicle for interpreting previous judgments.” Martin v. Dosohs I Ltd., 2 S.W.3d

350, 354 (Tex. App.—San Antonio 1999, no pet.) (citing Cohen v. Cohen, 632 S.W.2d 172, 173

(Tex. App.—Waco 1982, no writ); Speaker v. Lawler, 463 S.W.2d 741, 742 (Tex. Civ.

App.—Beaumont 1971, writ ref’d n.r.e.); and District Judges of Collin Cty. v. Comm’rs Court of
Collin Cty., 677 S.W.2d 743, 745 (Tex. App.—Dallas 1984, writ ref’d n.r.e.)).            See also

Lawler v. Neathery, 509 S.W.2d 453, 455 (Tex. Civ. App.—Amarillo 1974, no writ) (declaratory

relief cannot be used to interpret prior judgments); Zale Corp. v. E. I. Du Pont de Nemours & Co.,

494 S.W.2d 229, 235 (Tex. Civ. App.—Dallas 1973, no writ) (same); Oji v. State Bar of Texas,

No. 14-01-00434-CV, 2001 Tex. App. LEXIS 7562, at *6 (Tex. App.—Houston [14th Dist.]

Nov. 8, 2001, pet. denied) (not designated for publication) (citing Martin, 2 S.W.3d at 354, and

Cohen, 632 S.W.2d at 173, for proposition that collateral attacks cannot be used to interpret

prior judgments).

               Our previous holdings are consistent with the majority rule. See Vista Health Plan,

Inc. v. Texas Health & Human Servs. Comm’n, No. 03-03-00216-CV, 2004 Tex. App. LEXIS 4529,

at *21-25 (Tex. App.—Austin May 20, 2004, pet. denied) (mem. op.) (trial court lacked jurisdiction

over declaratory-relief claim raised after judgment was entered). As several courts have noted, the

rule is necessary to prevent impermissible advisory opinions. See, e.g., Martin, 2 S.W.3d at 354.

               ICSP’s declaratory-relief action seeks an interpretation of the November 15, 2000

judgment. Specifically, it asks the court to interpret the judgment as “final,” as supporting the

application of Labor Code section 410.209, and as precluding the application of Labor Code section

410.258. Thus, ICSP’s declaratory-relief action is impermissible.

               Put another way, ICSP sought, in its own words, “[a] declaration that [ICSP] is

entitled to reimbursement of all overpayments of benefits made to the Claimant under the order of

[the Department] because the order of [the Department] was reversed by a final order of a court.”

This is plainly a request for a declaration as to the effect of that court order. Parties are “not




                                                2
entitled to declaratory relief concerning the effect of . . . [final] orders.” Rapid Settlements,

251 S.W.3d at 141.

                The rule against using declaratory-relief actions to interpret previous judgments is not

just prudential; it is jurisdictional. See Goldberg v. Comm’n for Lawyer Discipline, 265 S.W.3d 568,

578 (Tex. App.—Houston [1st Dist.] 2008, pet. denied) (trial court lacked jurisdiction over

declaratory-relief claim that sought interpretation of discharge-dismissal order); Sealy RG

Valley Bldgs., L.P. v. Griffin, No. 13-07-598-CV, 2008 Tex. App. LEXIS 6517, at * 5 (Tex.

App.—Corpus Christi Aug. 26, 2008, no pet.) (mem. op.) (district court lacked jurisdiction over

declaratory-relief action that sought interpretation of earlier county-court judgment); Vista Health

Plan, 2004 Tex. App. LEXIS 4529, at *25 (trial court properly refused to exercise jurisdiction over

declaratory-relief claim filed after judgment was entered). See also Chenault v. Phillips, 914 S.W.2d

140, 141 (Tex. 1996) (declaratory relief available only if court already has subject-matter jurisdiction

over case, because filing action for declaratory relief does not expand court’s jurisdiction). Thus,

we should recognize its applicability sua sponte, see Texas Ass’n of Bus. v. Texas Air Control Bd.,

852 S.W.2d 440, 445-46 (Tex. 1993) (appellate court may sua sponte raise issues that implicate

subject matter jurisdiction), and use it as a basis for reversing the trial court’s summary judgment

and dismissing the cause. See City of Garland v. Louton, 691 S.W.2d 603, 605 (Tex 1985)

(per curiam) (“If the trial court lacks subject matter jurisdiction, the appellate court can make no

order other than reversing the judgment of the court below and dismissing the cause.”).

                The majority ignores these principles and instead reaches the merits of ICSP’s

declaratory-relief claim. Doing so plainly requires interpreting the November 15, 2000 judgment.



                                                   3
Indeed, this whole case hinges on whether or not the November 15, 2000 judgment is “final.”

Answering that question is by definition an act of interpretation.

                The majority tries to sidestep this issue by claiming that this case really “turns on

construction of statutes . . . and not construction of the 2000 judgment, per se.” Texas Dep’t of Ins.,

Div. of Workers’ Comp. v. Insurance Co. of State of Pa., No. 03-07-00171-CV, slip op. at 9 (Tex.

App.—Austin Feb. 12, 2010). But the majority belies this claim when it acknowledges that “the

existence, content, and finality of the 2000 judgment are among the elements that ICSP must prove

to recover.” Id. at 8. Having acknowledged this, the majority offers no authority for the proposition

that courts may issue declaratory judgments that interpret prior final judgments so long as they

happen to interpret statutes as well. Indeed, the majority acknowledges that the Uniform Declaratory

Judgments Act, “when authorizing courts to declare parties’ rights under statutes, ordinances,

contracts, etc., did not include ‘judgments’ among the instruments that courts may construe.” Id. at

7 (citing Speaker, 463 S.W.2d at 742).

                These are not merely abstract musings; the declaratory judgment that actually issued

in this case demonstrates that a court cannot avoid interpreting the 2000 judgment in addressing

ICSP’s claim for relief. The judgment reads in part: “the Court found that the judgment signed by

the 193rd Judicial District Court in Dallas County on November 15, 2000 . . . is a final judgment.”

To “find” that a judgment is “final” is, I believe, to engage in a paradigmatic act of interpretation.

                The trial court should have dismissed ICSP’s suit because trial courts lack jurisdiction

over declaratory-relief claims that seek to interpret previous judgments. I believe that we compound

the trial court’s error by entertaining this appeal. I therefore respectfully dissent.



                                                   4
                                           __________________________________________

                                           David Puryear, Justice

Before Justices Patterson, Puryear and Pemberton

Filed: February 12, 2010




                                              5
