                                 NUMBER 13-14-00203-CV

                                    COURT OF APPEALS

                          THIRTEENTH DISTRICT OF TEXAS

                             CORPUS CHRISTI - EDINBURG


                               IN RE REBECCA GALLARDO


                           On Petition for Writ of Mandamus.


                               MEMORANDUM OPINION

               Before Justices Benavides, Perkes, and Longoria
                 Memorandum Opinion by Justice Benavides1

        Relator, Rebecca Gallardo, proceeding pro se, seeks a petition for writ of

mandamus or prohibition to compel the trial court2 to grant Gallardo’s plea to the

jurisdiction. Specifically, Gallardo contends the trial court erred in failing to grant her plea

to the jurisdiction and granting summary judgment against her because: (1) the real party


        1 See TEX. R. APP. P. 52.8(d) (“When denying relief, the court may hand down an opinion but is not
required to do so. When granting relief, the court must hand down an opinion as in any other case.”); TEX.
R. APP. P. 47.4 (distinguishing opinions and memorandum opinions).

        2The respondent in this original proceeding is the Honorable Lisa Gonzales, Presiding Judge of
the County Court at Law No. Two of Nueces County, Texas.
in interest, the Texas Department of Insurance, Division of Workers’ Compensation (the

“Division”), has exclusive jurisdiction over benefit dispute agreements; (2) Texas Workers’

Compensation Act case law precludes judicial actions taken outside of the Act’s

administrative processes and remedies; and (3) Texas Labor Code section 408.201

precludes judgments or other actions or claims regarding workers’ compensation

benefits. See TEX. LAB. CODE ANN. § 408.201 (West, Westlaw through 2013 3d C.S.)

(providing that workers’ compensation benefits are exempt from garnishment,

attachment, judgment, and “other actions or claims”). We conditionally grant the petition,

in part, and deny it in part, as stated herein.3

                                             I. BACKGROUND

        On June 2, 2008, Gallardo sustained a work-related injury for which she sought

workers’ compensation benefits.              Insurance Company of the State of Pennsylvania

(“ICSOP”) was Gallardo’s employer’s workers’ compensation insurance carrier. Through

a series of contested case hearings, the Division concluded that Gallardo was not entitled

to receive supplemental income benefits.4 In February 2011, Gallardo filed a suit for

judicial review of the Division’s decisions on her first, second, third, and fourth-quarter




        3 As discussed herein, this petition for writ of mandamus joins an appeal currently pending in this

Court arising from the same underlying trial court proceedings. In our appeal number 13-14-00132-CV,
Gallardo v. Insurance Company of the State of Pennsylvania, Gallardo appeals the order granting summary
judgment.
        4   Supplemental income benefits provide long-term disability compensation. See TEX. LAB. CODE
ANN. § 408.142 (West, Westlaw through 2013 3d C.S.); Rodriguez v. Serv. Lloyds Ins. Co., 997 S.W.2d
248, 253 (Tex. 1999). To be entitled to supplemental income benefits, the claimant has the burden of
establishing that the claimant: (1) has an impairment rating of fifteen percent or more from a compensable
injury; (2) has not returned to work or has returned to work earning less that eighty percent of the claimant's
average weekly wage as a direct result of the impairment; (3) has not elected to commute a portion of the
impairment income benefit under section 408.128; and (4) has complied with the work search requirements
adopted under section 408.1415. TEX. LAB. CODE ANN. § 408.142(a); Daniels v. Indem. Ins. Co. of N. Am.,
345 S.W.3d 736, 740 n.4 (Tex. App.—Dallas 2011, no pet.).

                                                          2
supplemental income benefits. This case was filed in cause number 2011-CCV-60284-

A in County Court at Law Number One of Nueces County, Texas.

       The parties ultimately reached an agreement, and on April 12, 2012, the trial court

signed a final judgment in accordance with the settlement agreement. The judgment

provided, in relevant part, that Gallardo was entitled to supplemental income benefits for

the first, second, and third quarters, but was not entitled to benefits for the fourth quarter.

The judgment did not address Gallardo’s entitlement to the fifth, sixth, seventh, or eighth

quarter benefits. ICSOP paid Gallardo first, second, and third quarter supplemental

income benefits.

       Pursuant to the agreement, the parties executed a proposed DWC-24 Form on

February 6, 2012, and submitted it to the Division for review on May 10, 2012. On May

15, 2012, the Division’s Benefit Review Officer denied approval of the DWC-24 benefit

dispute agreement by correspondence to the parties stating:

               Please take notice that I have denied the DWC-24 as submitted on
       05/10/12 by the parties. The agreement as submitted includes SIBS
       quarters 5th, 6th, 7th and 8th. The 5th and 6th quarters have previously
       been scheduled for a BRC, but not the 7th and 8th quarters. In addition,
       the agreement is signed 02/06/12 and I note that attorney Daniel Home [sic]
       no longer represents the Claimant. A party should request dispute
       resolution so all quarters noted herein can be addressed, and that the
       Division may be assured that these are the terms agreed to by all parties. I
       realize the 02/06/12 DWC-24 was part of another agreement outside the
       Division jurisdiction; therefore, if the parties wish to sign another agreement,
       all issues can be properly resolved at a BRC.

       In July 2012, ICSOP filed suit against Gallardo and her former counsel, Daniel F.

Horne and Stone & Horne, L.L.P., in trial court cause number 2012-CCV-61313-2 in the

Court at Law No. 2 of Nueces County, alleging that Gallardo and her former counsel

breached the settlement agreement because they refused to cooperate in executing a



                                                  3
new DWC-24 for submission to the Division. This trial court proceeding gave rise to this

petition for writ of mandamus appeal and the related appeal. ICSOP’s causes of action

against Gallardo and her counsel included breach of contract, conversion, and fraud in

the inducement. ICSOP further sought specific performance of the settlement agreement.

Gallardo filed an original answer to ICSOP’s petition which included a plea to the

jurisdiction, a counterclaim, and a motion for sanctions.

       ICSOP filed a motion for traditional and no-evidence summary judgment seeking

specific performance of the settlement agreement or the return of the settlement funds.

See generally TEX. R. CIV. P. 166a. On December 12, 2013, the trial court held a hearing

on ICSOP’s motion for summary judgment, and, on January 24, 2014, the trial court

signed an “Order Granting Final Summary Judgment” in favor of ICSOP. In the order

granting summary judgment, the trial court concluded that Gallardo breached the

settlement agreement and granted specific performance of the settlement agreement.

The judgment specifically recites that: (1) Gallardo is entitled to supplemental income

benefits for the first, second, and third quarters; (2) Gallardo is not entitled to

supplemental income benefits for the fourth, fifth, sixth, seventh, or eighth quarters; (3)

Gallardo’s attorney’s fees and expenses were capped at $12,500.00; and (4) Gallardo

“shall cooperate with ICSOP in order to ensure that all necessary paperwork, including a

[DWC-24] covering the fifth, sixth, seventh, and eighth quarters, is timely submitted and

approved” by the Division. According to the order, the trial court retained jurisdiction “to

enforce the terms of this decree of specific performance through further appropriate

proceedings and orders, including, as and if needed, findings and orders of contempt.”




                                                4
        Gallardo appealed the summary judgment in our appellate cause 13-14-00132-

CV, which we have addressed by separate opinion issued this same date. Gallardo filed

this petition for writ of mandamus or prohibition on April 1, 2014. The Court requested

that the real parties in interest, the Division, ICSOP, Daniel F. Horne and Stone & Horne,

L.L.P., Apria Healthcare Group, Inc., or any others whose interest would be directly

affected by the relief sought, file a response to the petition for writ of mandamus. The

Division filed a response and an amended response, and ICSOP also filed a response.

Gallardo has filed a reply to the Division’s response and also filed a reply to ICSOP and

Horne’s responses.5

        Through this original proceeding, Gallardo raises three issues pertaining to the trial

court’s jurisdiction and its allegedly void summary judgment. First, Gallardo contends that

the trial court abused its discretion by not resolving and granting her plea to the jurisdiction

because only the Division has exclusive jurisdiction to approve workers’ compensation

DWC-24 agreements, and any other purported agreements merging with a DWC-24;

therefore the Division order denying the DWC-24 agreement is not subject to judicial

review in a common law cause of action filed outside of the Act’s provisions. Second,

Gallardo contends that the Act eliminated the need for judicially imposed causes of action

outside the administrative processes and other remedies in the Act. Third, Gallardo

contends that Texas Labor Code section 408.201 exempts workers’ compensation from

“other actions or claims” as in the instant case. By supplemental petition for writ of




         5 Daniel F. Horne and Stone & Horne LLP filed a response stating that they are not real parties in

interest because they were nonsuited from the underlying suit and have no pending claims nor
counterclaims. They have no substantive rights which are either enforceable against any other party, or
against them, either directly or indirectly. By the pleadings filed in this case, relator does not contest these
allegations.

                                                           5
mandamus, Gallardo further contends that a trial court order purporting to enforce a

judicial review settlement agreement under Texas Rule of Civil Procedure 11 that fails to

comply with the filing requirements of Rule 11 and section 410.258 of the Texas Labor

Code is correctable by mandamus review. Gallardo also contends that a trial court order

interfering with another court’s jurisdiction is enforceable by mandamus relief.

                                   II. WRIT OF MANDAMUS

       To be entitled to the extraordinary relief of a writ of mandamus, the relator must

show that the trial court committed a clear abuse of discretion for which the relator has

no adequate remedy at law. In re Frank Motor Co., 361 S.W.3d 628, 630 (Tex. 2012)

(orig. proceeding); In re Olshan Found. Repair Co., LLC, 328 S.W.3d 883, 887 (Tex.

2010) (orig. proceeding); In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135–36 (Tex.

2004) (orig. proceeding); Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992) (orig.

proceeding). The relator has the burden of establishing both prerequisites to mandamus

relief. In re CSX Corp., 124 S.W.3d 149, 151 (Tex. 2003) (orig. proceeding). This burden

is a heavy one. Id.; Canadian Helicopters Ltd. v. Wittig, 876 S.W.2d 304, 305 (Tex. 1994)

(orig. proceeding).

       A trial court abuses its discretion if it reaches a decision so arbitrary and

unreasonable that it amounts to a clear and prejudicial error of law or if it clearly fails to

correctly analyze or apply the law. In re Olshan Found. Repair Co., LLC, 328 S.W.3d at

888; Walker, 827 S.W.2d at 840. A trial court has no discretion in determining what the

law is or in applying the law to the facts. Walker, 827 S.W.2d at 840. The adequacy of

an appellate remedy must be determined by balancing the benefits of mandamus review

against the detriments. In re Team Rocket, L.P., 256 S.W.3d 257, 262 (Tex. 2008) (orig.



                                                 6
proceeding). Because this balance depends heavily on circumstances, it must be guided

by the analysis of principles rather than the application of simple rules that treat cases as

categories.   In re McAllen Med. Ctr., Inc., 275 S.W.3d 458, 464 (Tex. 2008) (orig.

proceeding). We evaluate the benefits and detriments of mandamus review and consider

whether mandamus will preserve important substantive and procedural rights from

impairment or loss. In re Prudential Ins. Co. of Am., 148 S.W.3d at 136. The second

requirement for mandamus relief, that the relator has no adequate remedy by appeal,

“has no comprehensive definition” and is decided on a case-by-case basis. See In re

Ford Motor Co., 165 S.W.3d 315, 317 (Tex. 2005) (orig. proceeding) (citing In re

Prudential Ins. Co. of Am., 148 S.W.3d at 136).

       The improper denial of a plea to the jurisdiction is generally not reviewable by

mandamus because it involves a question of law which can be addressed by ordinary

appeal. See In re State Bar of Tex., 113 S.W.3d 730, 734 (Tex. 2003) (orig. proceeding).

When a trial court erroneously denies a plea to the jurisdiction, the fact that the party

seeking mandamus may be “forced to endure the ‘hardship’ of a full-blown trial” if the

appellate court declines mandamus relief is not, alone, sufficient to render remedy by

appeal inadequate.     In re Entergy Corp., 142 S.W.3d 316, 321 (Tex. 2004) (orig.

proceeding). However, mandamus may lie to correct a trial court’s denial of a plea to the

jurisdiction based on an agency’s exclusive jurisdiction because “the judicial appropriation

of state agency authority would be a clear disruption of the ‘orderly processes of

government.’” Id. (quoting State v. Sewell, 487 S.W.2d 716, 719 (Tex. 1972)); see In re

Liberty Mut. Fire Ins. Co., 295 S.W.3d 327, 328–29 (Tex. 2009) (orig. proceeding); In re

Sw. Bell Tel. Co., 235 S.W.3d 619, 624 (Tex. 2007) (orig. proceeding); In re Mid-Century



                                                 7
Ins. Co. of Tex., 426 S.W.3d 169, 178 (Tex. App.—Houston [1st Dist.] 2012, orig.

proceeding). Thus, where the Act vests exclusive jurisdiction in the Division, the trial

court’s failure to grant a plea to the jurisdiction is correctable by mandamus to prevent a

disruption in the orderly processes of government. See In re Liberty Mut. Fire Ins. Co.,

295 S.W.3d at 328; In re Mid-Century Ins. Co. of Tex., 426 S.W.3d at 178.

                                   III. WRIT OF PROHIBITION

       A petition for a writ of prohibition is an “extraordinary” proceeding and should be

used “sparingly.” In re Lewis, 223 S.W.3d 756, 761 (Tex. App.—Texarkana 2007, orig.

proceeding) (citing Guerra v. Garza, 987 S.W.2d 593, 594 (Tex. Crim. App. 1999)). Its

extraordinary nature requires caution in its use. See In re Miller, 433 S.W.3d 82, 84 (Tex.

App.—Houston [1st Dist.] 2014, orig. proceeding); In re State, 180 S.W.3d 423, 425 (Tex.

App.—Tyler 2005, orig. proceeding).          A party seeking a writ of prohibition must

demonstrate: (1) that it has no other adequate remedy at law, and (2) that it is clearly

entitled to the relief sought. See In re Lewis, 223 S.W.3d at 761. A writ of prohibition is

a “creature of limited purpose.” Id.; see In re Miller, 433 S.W.3d at 84. A writ of prohibition

issues only to prevent the threatened commission of a future act. See Tilton v. Marshall,

925 S.W.2d 672, 676 n.4 (Tex. 1996) (orig. proceeding). The writ is designed to operate

like an injunction issued by a superior court to control, limit, or prevent action in a court of

inferior jurisdiction. Holloway v. Fifth Ct. of App., 767 S.W.2d 680, 682–83 (Tex. 1989)

(orig. proceeding). Thus, it is available to protect the subject matter of an appeal or to

prohibit unlawful interference with enforcement of an appellate court's judgment. See

Holloway, 767 S.W.2d at 683; In re Miller, 433 S.W.3d at 84; Sivley v. Sivley, 972 S.W.2d

850, 862–63 (Tex. App.—Tyler 1998, orig. proceeding). In this regard, a writ of prohibition



                                                   8
has three functions: (1) preventing interference with higher courts in deciding a pending

appeal; (2) preventing inferior courts from entertaining suits which will relitigate

controversies which have already been settled by issuing courts; and (3) prohibiting a trial

court’s action when it affirmatively appears that the court lacks jurisdiction. In re Lewis,

223 S.W.3d at 761; Tex. Capital Bank-Westwood v. Johnson, 864 S.W.2d 186, 187 (Tex.

App.—Texarkana 1993, orig. proceeding); McClelland v. Partida, 818 S.W.2d 453, 456

(Tex. App.—Corpus Christi 1991, orig. proceeding). Accordingly, for instance, “[a] writ of

prohibition is proper to prevent a trial court from acting when the court lacks jurisdiction.”

In re Sistrunk, 142 S.W.3d 497, 500 (Tex. App.—Houston [14th Dist.] 2004, orig.

proceeding).

       As with writs of mandamus, a writ of prohibition is not an appropriate method of

relief when other remedies, such as an appeal, are available and adequate. See In re

Miller, 433 S.W.3d at 84; In re Castle Tex. Prod. Ltd. P'ship, 189 S.W.3d 400, 404 (Tex.

App.—Tyler 2006, orig. proceeding). The writ will not issue to protect an appellate court's

jurisdiction from the mere possibility of interference by a trial court; rather, the threat of

jurisdictional interference must be imminent. In re Miller, 433 S.W.3d at 84; In re Castle

Tex. Prod., 189 S.W.3d at 403.

                                   IV. MOTION TO STRIKE

       As a threshold matter, we first consider ICSOP’s motion to strike Gallardo’s petition

for writ of mandamus, which is contained in ICSOP’s response to the petition. According

to the motion to strike, this mandamus proceeding arises from Gallardo’s workers’

compensation claim regarding a compensable injury sustained on June 2, 2008 and

Gallardo has filed actions in County Court at Law Number 1, Nueces County, Texas; in



                                                 9
the 117th Judicial District Court of the State of Texas, Nueces County, Texas; and in the

U.S. District Court for the Southern District of Texas (Corpus Christi Division) against

ICSOP, its attorney, and others on “various causes of action relating to her claim and

reflecting her dissatisfaction with the adjudication thereof.” ICSOP alleges that Gallardo

“has been adjudged a vexatious litigant by the U. S. District Court for the Southern District

of Texas.” In support of this allegation, ICSOP provides an “Order of Dismissal with

Prejudice” in that court which provides in pertinent part:

              The Court has considered the Agreed Motion to Dismiss Claims
       Pursuant to Stipulation, along with the attached stipulation, filed by Plaintiff
       Rebecca Gallardo (“Plaintiff”) and Defendants Chartis Claims, Inc. and
       Chartis Insurance Agency, Inc. (the Chartis Defendants”). The Court has
       decided to GRANT the motion.

              IT IS THEREFORE ORDERED THAT:

             1.      All claims by Plaintiff Rebecca Gallardo in this case against
       the Chartis Defendants are DISMISSED WITH PREJUDICE. This dismissal
       does not encompass or include claims asserted by any of the parties in:

              (a)   Insurance Company of the State of Pennsylvania vs. Rebecca
       Gallardo, Daniel F. Horne and Stone & Horne, LLP, Cause No. 2012 CCV-
       61313-2, County Court at Law No. 2, Nueces County, Texas; and/or

            (b)   Rebecca Gallardo vs. Insurance Company of the State of PA,
       Cause No. 2013-DCV-2741B, In the Judicial Court 117th District Court,
       Nueces County, Texas.

              2.      Before Plaintiff files any future lawsuit for any claims or causes
       of action related to or arising out of the facts made the basis of this case,
       she must first obtain permission from Judge Nelva Ramos, U.S. District
       Court for the Southern District of Texas, upon a showing that the suit has
       both legal and factual merit.

              5.      If Plaintiff obtains permission to file suit and if Plaintiff files any
       lawsuit against any person or entity for any claims or causes of action
       related to or arising out of the facts made the basis of this case, the lawsuit
       must be filed in the U.S. District Court for the Southern District of Texas,
       Corpus Christi Division. Plaintiff agrees that any such suit will be assigned
       or transferred to Judge Nelva Ramos.

                                                    10
              6.     All costs of court and attorney’s fees in this case, Cause No.
       2:12-CV-213, will be borne by the parties incurring same. However, the
       Chartis Defendants will be entitled to recover against Plaintiff all reasonable
       and necessary attorney’s fees and related costs and expenses of litigation
       in any and all subsequent proceedings to enforce the terms of this order. 6

       ICSOP alleges that the claim embraced by Gallardo’s petition for writ of mandamus

relates to or arises out the facts made the basis of the federal district court case, as

demonstrated by her last live pleading in that case. ICSOP further alleges that Gallardo

did not obtain the permission of Judge Ramos to file this petition for writ of mandamus.

ICSOP contends that this original proceeding is “separate and apart” from Gallardo’s

appeal of the underlying action in County Court at Law Number 2, Nueces County, Texas,

“the continuation of which is excepted from Judge Ramos’ order,” and which has been

assigned a separate cause number by this Honorable Court. ICSOP thus moves to strike

the petition for writ of mandamus or prohibition in its entirety and further reserves the right

to seek appropriate relief in the U.S. District Court for the Southern District of Texas in

accordance with Judge Ramos’ order.

       The same rules of interpretation apply in construing the meaning of court orders or

judgments as in ascertaining the meaning of other written instruments. Lone Star Cement

Corp. v. Fair, 467 S.W.2d 402, 404–05 (Tex. 1971); Freightliner Corp. v. Motor Vehicle

Bd. of Texas Dep't of Transp., 255 S.W.3d 356, 363 (Tex. App.—Austin 2008, pet.

denied); see Permian Oil Co. v. Smith, 107 S.W.2d 564, 567 (Tex. 1937). The plain terms

of the order apply if Gallardo “files any future lawsuit.” By its terms, the order does not

encompass appeals or original proceedings. ICSOP concedes that the order does not

apply to the appeal arising from trial court cause number 2012-CCV-61313-2 pending in


       6   The incorrect numbering of the paragraphs in this order appears in the original.

                                                         11
our separate cause. The instant matter is an original appellate proceeding seeking

extraordinary relief, also arising from arising from trial court cause number 2012-CCV-

61313-2. We conclude that the order does not prohibit Gallardo’s petition for writ of

mandamus or require her to seek permission prior to filing because the petition is not a

“future lawsuit” and it arises from a cause of action that is specifically excluded from the

scope of the dismissal order.7 Accordingly, we deny ICSOP’s motion to strike. We

express no opinion herein on any issues that may hereafter be litigated in the federal

district court case.

                                              V. JURISDICTION

        A plea to the jurisdiction is a dilatory plea; its purpose is “to defeat a cause of action

without regard to whether the claims asserted have merit.” Bland Indep. Sch. Dist. v.

Blue, 34 S.W.3d 547, 554 (Tex. 2000). A plea challenges the trial court's authority to

decide a case. Heckman v. Williamson Cnty., 369 S.W.3d 137, 149 (Tex. 2012). Subject

matter jurisdiction is “essential to a court's power to decide a case.” Bland, 34 S.W.3d at

553–54. A court acting without jurisdiction commits fundamental error that we may review

for the first time on appeal. Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440,



        7 Whether to impose a pre-filing injunction against a vexatious litigant is a matter within the court's
discretion, after affording notice and an opportunity to be heard, as part of its inherent power to control its
dockets and issue sanctions in that effort. Farguson v. MBank Houston, N.A., 808 F.2d 358, 360 (5th Cir.
1986); Day v. Allstate Ins. Co., 788 F.2d 1110, 1115 (5th Cir. 1986); Rodriguez v. Bank of Am., N.A., No.
2:13-CV-133, 2014 WL 309065, at *3 (S.D. Tex. Jan. 28, 2014). The order issued by the federal district
court and provided to this Court by ICSOP contains no conclusion, finding or other recitation that Gallardo
is a vexatious litigant. Gallardo is not publically identified as a vexatious litigant by the website maintained
by the Texas Office of Court Administration, which includes lists of litigants declared vexatious by both state
and federal courts in Texas. Under the Texas Civil Practice and Remedies Code, we may not, subject to
certain exceptions, “file a litigation, original proceeding, appeal, or other claim presented, presented, pro
se, by a vexatious litigant subject to a prefiling order under Section 11.101 unless the litigant obtains an
order from the appropriate local administrative judge . . . permitting the filing.” TEX. CIV. PRAC. & REM. CODE
ANN. § 11.103(a) (West, Westlaw through 2013 3d C.S.). Given our resolution of this issue insofar as the
federal court’s order specifically excludes the trial court cause number that gave rise to this original
proceeding, we need not further address these matters in this case. See TEX. R. APP. P. 47.1, 47.4.

                                                          12
443–44 (Tex. 1993). All courts bear the affirmative obligation “to ascertain that subject

matter jurisdiction exists regardless of whether the parties have questioned it.” In re

United Servs. Auto. Ass'n, 307 S.W.3d 299, 306 (Tex. 2010) (orig. proceeding) (quoting

Univ. of Tex. Sw. Med. Ctr. at Dall. v. Loutzenhiser, 140 S.W.3d 351, 358 (Tex. 2004)).

A judgment rendered without subject matter jurisdiction cannot be considered final. Dubai

Petrol. Co. v. Kazi, 12 S.W.3d 71, 76 (Tex. 2000). Subject matter jurisdiction presents a

question of law we review de novo. City of Houston v. Rhule, 417 S.W.3d 440, 442 (Tex.

2013); Tex. Dep't of Transp. v. A.P.I. Pipe & Supply, LLC, 397 S.W.3d 162, 166 (Tex.

2013).

         When the legislature grants an administrative body the sole authority to make an

initial determination in a dispute, the agency has exclusive jurisdiction over the dispute.

City of Houston, 417 S.W.3d at 442; Thomas v. Long, 207 S.W.3d 334, 340 (Tex. 2006);

Subaru of Am., Inc. v. David McDavid Nissan, Inc., 84 S.W.3d 212, 221 (Tex. 2002).

Holmes v. Zurich Am. Ins. Co., 421 S.W.3d 766, 770 (Tex. App.—Dallas 2014, pet.

denied). Concomitantly, when an administrative agency possesses exclusive jurisdiction

over a dispute, the district court lacks jurisdiction to the extent of the agency's exclusive

authority to decide the dispute. See Thomas, 207 S.W.3d at 340.

         If an administrative body has exclusive jurisdiction, a party must exhaust all

administrative remedies before seeking judicial review of the decision. City of Houston,

417 S.W.3d at 442; Thomas, 207 S.W.3d at 340; Cash Am. Int'l., Inc. v. Bennett, 35

S.W.3d 12, 15 (Tex. 2000); Holmes, 421 S.W.3d at 770. The exhaustion doctrine serves

as a timing mechanism to ensure that the administrative process runs its course. See

City of Houston, 417 S.W.3d at 442; Cash Am. Int’l, Inc., 35 S.W.3d at 15; Holmes, 421



                                                13
S.W.3d at 770. The intent of the exhaustion doctrine is never to deprive a party of legal

rights; rather, it aims to ensure an orderly procedure to enforce those rights. City of

Houston, 417 S.W.3d at 442; Holmes, 421 S.W.3d at 770; Ysleta Indep. Sch. Dist. v.

Griego, 170 S.W.3d 792, 795 (Tex. App.—El Paso 2005, pet. denied). Absent exhaustion

of administrative remedies, a trial court must dismiss the case. City of Houston, 417

S.W.3d at 442; Tex. Educ. Agency v. Cypress–Fairbanks I.S.D., 830 S.W.2d 88, 90 (Tex.

1992).

         Whether the legislature has conferred exclusive jurisdiction on an agency is a

question of statutory interpretation. Blue Cross Blue Shield of Tex. v. Duenez, 201

S.W.3d 674, 675–76 (Tex. 2006); In re Mid-Century Ins. Co. of Tex., 426 S.W.3d at 171.

In construing statutes, we seek to determine legislative intent by interpreting a statute

according to its plain language when the plain language is unambiguous. In re Entergy

Corp., 142 S.W.3d at 322 (citing City of San Antonio v. City of Boerne, 111 S.W.3d 22,

25 (Tex. 2003)). An agency has exclusive jurisdiction when the legislature expressly

grants the agency exclusive jurisdiction or when a “pervasive regulatory scheme” reflects

legislative intent that an agency have the sole power to make the initial determination in

the dispute. Id.; Thomas, 207 S.W.3d at 340; In re Mid-Century Ins. Co. of Tex., 426

S.W.3d at 172.

                         VI. TEXAS WORKERS’ COMPENSATION ACT

         The Texas Workers’ Compensation Act (the “Act”) is a comprehensive legislative

scheme designed to create a no-fault compensation system for injured workers in Texas.

Tex. Workers’ Comp. Comm’n v. Garcia, 893 S.W.2d 504, 510–11 (Tex. 1995). As stated

by the Texas Supreme Court:



                                               14
               The purpose of the Act is to provide employees with certainty that
       their medical bills and lost wages will be covered if they are injured. An
       employee benefits from workers' compensation insurance because it saves
       the time and litigation expense inherent in proving fault in a common law
       tort claim. But a subscribing employer also receives a benefit because it is
       then entitled to assert the statutory exclusive remedy defense against the
       tort claims of its employees for job related injuries.

HCBeck, Ltd. v. Rice, 284 S.W.3d 349, 349 (Tex. 2009); see Tex. Mut. Ins. Co. v. Ruttiger,

381 S.W.3d 430, 441 (Tex. 2012); In re Poly–Am., L.P., 262 S.W.3d 337, 349 (Tex. 2008)

(orig. proceeding).    The Texas Department of Insurance, Division of Workers’

Compensation (the “Division”) is the Act’s legislatively-designated overseer.         See

Ruttiger, 381 S.W.3d at 434 n.1.        The Division hears and adjudicates workers’

compensation benefits disputes between workers’ compensation benefits claimants and

insurance carriers. See TEX. LAB. CODE ANN. §§ 410.251, .301 (West, Westlaw through

2013 3d C.S.); In re Liberty Mut. Fire Ins. Co., 295 S.W.3d 327, 328 (Tex. 2009) (orig.

proceeding). The Division also reviews agreements and settlements on benefits disputes

between the parties. See TEX. LAB. CODE ANN. § 408.005(d) (West, Westlaw through

2013 3d C.S.) (requiring settlements to be signed by the commissioner and all parties to

the dispute); § 408.005(e) (West, Westlaw through 2013 3d C.S.) (providing that the

commissioner “shall” approve a settlement if satisfied that the settlement accurately

reflects the agreement between the parties, reflects adherence to the law and policies of

the division, and is in the best interests of the claimant); § 410.029 (West, Westlaw

through 2013 3d C.S.) (providing that a dispute may be resolved either in whole or in part

at a benefit review conference, and if the conference results in the resolution of some

disputed issues by agreement or in a settlement, the benefit review officer shall reduce

the agreement or the settlement to writing and each party shall sign it, and the settlement



                                               15
takes effect on the date it is approved by the director); § 410.258 (West, Westlaw through

2013 3d C.S.) (requiring notice to Division of proposed judgments and settlements and

opportunity for Division to intervene if Commissioner finds that the proposals do not

comply with law).

       The Legislature has granted the Division exclusive jurisdiction over claims for

workers’ compensation policy benefits, which include medical, income, death, and burial

benefits. See TEX. LAB. CODE ANN. § 401.011(5); Am. Motorists Ins. Co. v. Fodge, 63

S.W.3d 801, 803 (Tex. 2001); Holmes, 421 S.W.3d at 770; In re Texas Mut. Ins. Co., 157

S.W.3d 75, 81 (Tex. App.—Austin 2004, orig. proceeding).          Because the Act is a

comprehensive statutory scheme, it precludes the application of claims and procedures

not contained within the Act. Liberty Mut. Ins. Co. v. Adcock, 412 S.W.3d 492, 493 (Tex.

2013); Ruttiger, 381 S.W.3d at 451. The Division’s exclusive jurisdiction continues until

a final decision has been reached, at which point a claimant may appeal to the trial court

for relief through the process described in the Texas Labor Code. See Fodge, 63 S.W.3d

at 803; see also England v. Liberty Ins. Corp., No. CIV.A. H:10-1937, 2011 WL 3567084,

at *1 (S.D. Tex. Aug. 12, 2011). Alternatively, a party can effectively exhaust remedies

on a showing that the parties have dealt with the disputed issue in a benefit dispute

agreement (“BDA”), which is a form of binding mediation used by the Division. See

Ruttiger, 381 S.W.3d at 437; Thomas v. Am. Home Assur. Co., 403 S.W.3d 512, 520

(Tex. App.—Dallas 2013, no pet.); Stinson v. Ins. Co. Of the State of Pa., 286 S.W.3d 77,

84 (Tex. App.-Houston [14th Dist.] 2009, pet. denied); Pickett v. Tex. Mut. Ins. Co., 239

S.W.3d 826, 837 (Tex. App.—Austin 2007, no pet.); see also England, 2011 WL 3567084,

at **1–2.



                                               16
       Thus, the Division’s administrative review and disposition of compensability

issues, once exhausted, may be reviewed by the courts. See TEX. LAB. CODE ANN. §

410.252 (West, Westlaw through 2013 3d C.S.). Section 410.254 of the Labor Code

authorizes the Division to intervene in any suits for judicial review of its administrative

decisions.   See id. § 410.254 (West 2006).        The courts, recognizing the Division’s

oversight role, do not require it to show a justiciable interest to intervene in a case. See

Tex. Workers’ Comp. Comm’n v. Hartford Acc. & Indem. Co., 952 S.W.2d 949, 953 (Tex.

App.—Corpus Christi 1997, pet. denied).

                                       VII. ANALYSIS

       Gallardo contends that the trial court abused its discretion by not resolving and

granting her plea to the jurisdiction because only the Division has exclusive jurisdiction to

approve workers’ compensation DWC-24 agreements and any other purported

agreements merging with a DWC-24; therefore the Division order denying the DWC-24

agreement is not subject to judicial review in a common law cause of action filed outside

of the Act’s provisions. In connection with this issue, Gallardo also contends that the Act

eliminated the need for judicially imposed causes of action outside the administrative

processes and other remedies in the Act.

       In response, ICSOP contends generally that the trial court had jurisdiction to

enforce the terms of the settlement agreement and the agreed judgment rendered in the

prior judicial review proceeding. In contrast, the Division agrees, in part, with Gallardo.

Specifically, the Division “agrees that the trial court lacked jurisdiction to determine

[Gallardo’s] fifth- through eighth-quarter benefits eligibility, and mandamus should issue

to correct that portion of the trial court’s judgment.” The Division asserts that some or all



                                                17
of Gallardo’s fifth through eighth quarter benefits are now pending in a separate suit for

judicial review pending in cause number 2013-DCV-2741-B in the 117th District Court of

Nueces County, Texas. Thus, according to the Division, Gallardo’s claim for the fifth

through eighth quarter benefits are “currently either unexhausted or under review in a

separate court,” and the trial court lacked jurisdiction to adjudicate them in the underlying

proceeding. See In re Liberty Mut. Fire Ins. Co., 295 S.W.3d at 328. However, the

Division asserts that the trial court had jurisdiction to order specific performance by the

parties of the Rule 11 Agreement insofar as it enforced the parties’ agreement to

cooperate in presenting documents to the Division and did not require the Division to take

any particular action on the documents presented to it.

       As the Texas Supreme Court has emphasized, “[t]he Workers' Compensation Act

vests the power to award compensation benefits solely in the [Division], subject to judicial

review.”   Fodge, 63 S.W.3d at 803 (quoting Saenz v. Fidelity & Guarantee Ins.

Underwriters, 925 S.W.2d 607, 612 (Tex. 1996)). A logical extension of this principle is

that a court has no jurisdiction to award damages against a carrier for deprivation of

workers' compensation benefits to an injured worker, except on judicial review, “without

a determination by the [Division] that such benefits were due.” Id. at 804. This is so even

if such claims are couched in terms of tort or statutory violations, because awarding

“damages based on a denial of benefits” is “tantamount to ordering that the care be paid

for and would . . . circumvent the [Division's] exclusive authority to decide that issue.” Id.;

accord Pickett v. Tex. Mut. Ins. Co., 239 S.W.3d 826, 835–36 (Tex. App.—Austin 2007,

no pet.); In re Tex. Mut. Ins. Co., 157 S.W.3d 75, 81 (Tex. App.—Austin 2004, orig.

proceeding). In Fodge, the Texas Supreme Court held that common law claims by injured



                                                 18
workers that would have the effect of establishing a right to workers' compensation

benefits implicate the Division's exclusive jurisdiction to award such benefits, and thus

cannot be litigated unless and until those administrative remedies are first exhausted.

See Fodge, 63 S.W.3d at 803.

      In the instant case, the trial court’s order granting summary judgment states that

Gallardo breached the settlement agreement and granted specific performance of the

settlement agreement. The judgment specifically recites that: (1) Gallardo is entitled to

supplemental income benefits for the first, second, and third quarters; (2) Gallardo is not

entitled to supplemental income benefits for the fourth, fifth, sixth, seventh, or eighth

quarters; (3) Gallardo’s attorney’s fees and expenses were capped at $12,500.00; and

(4) that Gallardo “shall cooperate with ICSOP in order to ensure that all necessary

paperwork, including a [DWC-24] covering the fifth, sixth, seventh, and eighth quarters,

is timely submitted and approved” by the Division.

      Based on the record before this Court, Gallardo had exhausted her administrative

remedies for her first through fourth quarter supplemental income benefits through a

series of contested case hearings before filing the judicial review suit in cause number

2011-CCV-60284-A in County Court at Law Number 1. This suit resulted in a judgment

regarding those quarters which was not appealed.          In contrast, Gallardo has not

exhausted her administrative remedies regarding her eligibility for or entitlement to fifth

through eighth quarter supplemental income benefits.         While there is a purported

settlement agreement addressing those quarters, the Division has not approved a benefit

dispute agreement regarding fifth through eighth supplemental income benefits. See

Ruttiger, 381 S.W.3d at 437 (“The [benefit dispute] agreement was approved by the WCD



                                               19
and was a sufficient resolution of Ruttiger's claim by the WCD to constitute exhaustion of

his administrative remedies . . . .”); In re N. H. Ins. Co., 360 S.W.3d 597, 605 (Tex. App.—

Corpus Christi 2011, orig. proceeding) (“When the DWC, a claimant, and the insurance

carrier agree on the claimant's entitlement to compensation benefits, their agreement is

binding as a final determination that the benefits are owed, precluding the need for the

claimant to seek administrative remedies before she can sue for damages arising from

the carrier's unreasonable delay or denial of benefits.”); In re Tex. Mut. Ins. Co., 360

S.W.3d 588, 594–95 (Tex. App.—Austin 2011, orig. proceeding) (holding that a claimant

was not required to “take any additional administrative action” regarding compensability

where the parties and the DWC signed a benefit dispute agreement regarding the

compensability of an injury); Pickett v. Tex. Mut. Ins. Co., 239 S.W.3d 826, 831 (Tex.

App.—Austin 2007, not pet.) (holding that claimant was not relieved of obligation to

exhaust administrative remedies regarding disputes over specific medical benefits where

a benefit dispute agreement determined compensability, but did not address or determine

what medical treatments were related to compensable injury).

       The Division has exclusive jurisdiction to determine workers’ compensation

benefits eligibility. See TEX. LAB. CODE ANN. §§ 408.001, .005(d), (e). Accordingly, the

trial court lacked jurisdiction to make any findings regarding Gallardo’s entitlement, or lack

thereof, to fifth through eighth quarter supplemental income benefits. See In re Liberty

Mut. Fire Ins. Co., 295 S.W.3d at 328. Accordingly, we conditionally grant mandamus

relief regarding the recitals in the trial court’s order that Gallardo is not entitled to

supplemental income benefits for the fifth, sixth, seventh, or eighth quarters on grounds

that the trial court lacked jurisdiction over these matters.



                                                 20
       We now examine whether or not the trial court possessed jurisdiction over the

other issues addressed in the order. The trial court has jurisdiction over requested relief

only to the extent that relief is not dependent upon the direct or indirect adjudication of a

matter within the DWC's exclusive jurisdiction. In re Tex. Mut. Ins. Co., 321 S.W.3d 655,

660 (Tex. App.—Houston [14th Dist.] 2010, orig. proceeding [mand. denied]);

Cunningham Lindsey Claims Mgmt., Inc. v. Snyder, 291 S.W.3d 472, 477 (Tex. App.—

Houston [14th Dist.] 2009, pet. filed).      We further note that requiring exhaustion of

administrative remedies allows the DWC to resolve disputed fact issues within its

exclusive jurisdiction. In re Tex. Mut. Ins. Co., 321 S.W.3d 655, 664; see Essenburg, 988

S.W.2d at 189. We conclude that, although the trial court lacked jurisdiction to determine

those workers’ compensation benefits that were not properly before it, it may order

specific performance of the parties’ contractual obligations insofar as they do not infringe

on the Division’s jurisdiction. The Rule 11 Agreement requires the parties to cooperate

in presenting the Division with a DWC-24 Form addressing Gallardo’s fifth- through

eighth-quarter supplemental income benefits. The trial court’s order requiring Gallardo to

cooperate in presenting a DWC-24 Form to the Division does not affect the Division’s

prior denial of the parties’ executed DWC-24 Form or direct the Division to approve any

new DWC-24 Form the parties present. Rather, it requires Gallardo to perform her

contractual duties as agreed. While Gallardo’s fifth- through eighth-quarter benefits were

not before the trial court when she executed the Rule 11 Agreement during her suit for

judicial review for her first- through fourth-quarter benefits, she was certainly free to agree

with ICSOP to tender future performance in presenting DWC-24 Forms with the parties’

agreed, proposed resolution of quarters five through eight to the Division.



                                                 21
       Gallardo argues that Texas Mutual Insurance Company v. Ruttiger, 381 S.W.3d

430 (Tex. 2012), and Liberty Mutual Insurance Company v. Adcock, 412 S.W.3d 492

(Tex. 2013), illustrate that the Legislature has effectively eliminated judicially imposed

causes of actions outside the Act. Gallardo contends that these cases preclude the trial

court from ordering her to resubmit a DWC-24 Form pursuant to the Parties’ Rule 11

Agreement. According to Gallardo’s reasoning, the Act is comprehensive and precludes

actions and procedures not contained within the Act. She complains that the trial court

cannot order her to execute a DWC-24 Form through a breach of contract action because

no such procedure exists within the Act.

       The Texas Supreme Court has addressed the availability of extra-contractual

claims in the context of a workers' compensation claim. See Ruttiger, 381 S.W.3d at 430.

The supreme court held in Ruttiger that a claimant cannot recover damages under section

541.060 from a workers' compensation insurer for unfair claims settlement practices. Id.

at 445; see Texas Mut. Ins. Co. v. Morris, 383 S.W.3d 146, 150 (Tex. 2012).            The

supreme court also held that amendments to the Act eliminated the need for a cause of

action for breach of the common law duty of good faith and fair dealing against workers'

compensation insurers. Id. at 446 (overruling Aranda v. Ins. Co. of N. Am., 748 S.W.2d

210, 212–13 (Tex. 1988)); see Morris, 383 S.W.3d at 150. However, the supreme court

further held that a cause of action under section 541.061 for misrepresentation of an

insurance policy is not necessarily incompatible with the workers' compensation system.

Id. at 439; see Morris, 383 S.W.3d at 150. The lynchpin of the supreme court’s analysis

was that “[t]he Act effectively eliminates the need for a judicially imposed cause of action




                                                22
outside the administrative processes and other remedies in the Act.”         Ruttiger, 381

S.W.3d at 451.

       Ruttiger is inapplicable to Gallardo’s claims in this case. The underlying lawsuit

and the claims therein are not new causes of actions or procedures under the Act.

Specifically, the lawsuit is part of the Act’s statutory scheme regarding the exhaustion of

administrative remedies. The trial court’s order requiring cooperation in presenting a

DWC-24 form to the Division is premised on the Act’s statutory scheme. Accordingly, we

do not consider Ruttiger to preclude the trial court’s actions.

       In Adcock, the supreme court considered the “narrow question” regarding whether

the current version of the Act contains a procedure to re-open lifetime income benefit

determinations. Adcock, 412 S.W.3d at 497. In that case, the insurance carrier sought

a new contested case hearing on the claimant's continuing eligibility for lifetime income

benefits (“LIBs”) based on the carrier's belief that the claimant may have regained the use

of his extremities. Id. at 493–94. The proceeding was brought over ten years after the

LIB determination even though the carrier had never sought judicial review of the LIB

award. Id. Liberty and the Division asserted that if an employee medically improves and

no longer meets the statutory requirements for eligibility for LIBs, the Division has

“necessarily implicit” authority to re-open the LIB determination. Id. Adcock countered

that the plain language of the statute indicates the LIB determination is permanent and

offers no procedure to reopen it. Id. The supreme court agreed with Adcock. Id. The

court held that the claimant's LIB determination could not be reopened and withdrawn

based on changed circumstances. Id. at 497. The Adcock Court noted that, during the

1989 reforms to the Act, the Legislature had removed the mechanism authorizing periodic



                                                23
LIBs review while leaving other types of benefits review intact.          See id. at 495–96

(recognizing that the Act still provided review procedures for, inter alia, temporary and

supplemental income benefits). “[T]he Legislature's express provision of procedures for

re-evaluating temporary benefit eligibility and the absence of such a procedure for

permanent benefits indicates a deliberate choice, and we must respect the Legislature's

prerogative to establish the rights and procedures in the workers' compensation system.”

Id.

       The Adcock case, which by its own terms addressed a discrete, narrow issue

related to lifetime income benefits, is inapplicable to the instant case insofar as it concerns

actions taken by the Division in the absence of statutory authority. In contrast, this case

concerns the Division’s exclusive jurisdiction, under express statutory authority, to

determine workers’ compensation benefits.

       Finally, Gallardo argues that the trial court’s order is void under the Act, which

provides that benefits are exempt from garnishment, attachment, judgment, and other

actions or claims. See TEX. LAB. CODE ANN. § 408.201. To the extent that the trial court

is ordering Gallardo to cooperate with ICSOP in presenting a DWC-24 Form to the

Division for its approval, the trial court’s order is not void. As addressed above, the trial

court can order specific performance of contracts, and the Rule 11 Agreement is not void

merely because it orders Gallardo to cooperate in completing DWC-24 Forms as agreed

and presenting them to the Division. The trial court’s order is only void to the extent that

it adjudicates benefits the Division has not considered or determined or orders payment

of benefits.




                                                 24
                                      VIII. CONCLUSION

       The trial court lacked jurisdiction to determine Gallardo’s entitlement to fifth, sixth,

seventh, and eighth supplemental income benefits. Accordingly, to the extent that its

order adjudicated Gallardo’s rights to those benefits, its order is void. We conditionally

grant mandamus relief insofar as we direct the trial court to strike those portions of the

order. To the extent that Gallardo has requested additional relief, it is denied.




                                                          /s/Gina M. Benavides
                                                          GINA M. BENAVIDES,
                                                          Justice



Delivered and filed the
19th day of February, 2015.




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