





 



In The
Court of Appeals
For The
First District of Texas
____________

NO. 01-00-00846-CV
____________

HARRIS COUNTY EMERGENCY SERVICES DISTRICT # 1, Appellant

V.

ROBERT E. MILLER, Appellee




On Appeal from the 113th District Court 
Harris County, Texas
Trial Court Cause No. 2000-03848-A




O P I N I O N
          Appellant, Harris County Emergency Services District # 1 (HCESD), a state
political subdivision, appeals the district court’s order dismissing with prejudice its
petition for judicial review of an award of benefits to appellee, Robert E. Miller, by
the Texas Workers’ Compensation Commission (“TWCC”).  HCESD asserts four
issues on appeal, contending that the trial court erred in entering its order impliedly
finding that it lacked either personal jurisdiction over Miller or subject matter
jurisdiction over HCESD’s appeal.  We reverse the trial court’s order of dismissal and
render judgment that HCESD take nothing.  
Factual Background
          While working as a paramedic for HCESD’s Emergency Medical Service
(EMS) Rapid Response Team, Miller injured his back while lifting a patient and
became disabled for approximately 17 months.  After his injury, Miller learned that 
HCESD did not provide workers’ compensation insurance benefits under any of the
three options mandated by the Labor Code.  Tex. Lab. Code Ann. § 504.011(1)-(3)
(Vernon 1996).
  HCESD initially claimed it did not comply because of an oversight
and paid Miller some medical expenses and benefits, but eventually stopped paying
him.
A.      The Benefit-Review Conference
          Miller filed a TWCC claim for benefits and income, which HCESD did not
challenge.  The hearing officer at the benefit-review conference
 determined that (1)
Miller had sustained a compensable injury in the course and scope of his
employment; (2) HCESD became a self-insurer by default because it was required to
provide workers’ compensation benefits to its employees, but did not; and (3)
HCESD owed Miller medical expenses and income benefits.
B.      The Contested-Case Hearing
          HCESD challenged the benefit-review conference decision at a TWCC
contested-case hearing,
 disputing TWCC’s jurisdiction to order compensation
because HCESD was a non-subscriber.  The TWCC contested-case hearing decision
overruled the benefit-review conference determination and ruled, in part,
 that:  (1)
HCESD had wilfully and intentionally failed to comply with the provisions of the
Labor Code mandating workers’ compensation benefits; (2) HCESD nevertheless did
not become a self-insurer and was not liable to Miller; and (3) TWCC had neither
jurisdiction nor venue to hear the case.  Miller timely appealed the contested-case
hearing decision to the TWCC Appeals Panel.  See Tex. Lab. Code Ann. §
410.202(a) (Vernon 1996) (Request for Appeal; Response).
C.      The TWCC Appeals Panel
          HCESD did not respond to Miller’s appeal to the TWCC Appeals Panel,
although it was required by statute to do so.  See Tex. Lab. Code Ann. § 410.202(b)
(Vernon 1996).  TWCC Appeals Panel No. 112 issued a decision determining that: 
(1) TWCC had jurisdiction to hear the appeal; (2) venue was proper; (3) HCESD was
required to provide workers’ compensation coverage for its employees; and (4)
having failed to provide insurance under a workers’ compensation policy or to enter
into an inter-local agreement with other political subdivisions to provide self-insurance, as authorized by the Code, HCESD automatically, or by default, extended
these benefits to Miller by becoming a self-insurer.  See Tex. Lab. Code Ann. §
504.011(1)-(3).  The Appeals Panel reinstated the benefit-review conference’s earlier
compensable-injury determination and ordered HCESD to pay medical and income
benefits in accordance with the Labor Code and TWCC rules.
D.      This Litigation
          HCESD timely filed its petition in the district court for judicial review to set
aside the TWCC Appeals Panel’s decision and to obtain declaratory relief.
 See Tex.
Lab. Code Ann. § 410.252 (Vernon 1996) (“A party may seek judicial review by
filing suit not later than the 40th day after . . . the decision of the appeals panel . . . .”).
See also Tex. Lab. Code Ann. § 504.011(1) (self-insurer method of providing
coverage).
          Miller filed a pleading in the district court styled “Plea to Jurisdiction and
Original Answer of Defendant Robert E. Miller Subject Thereto,” asserting that the
trial court lacked both personal and subject matter jurisdiction over him.  Following
the hearing on the plea to the jurisdiction, the trial court granted Miller’s motion and
dismissed HCESD’s case with prejudice.  The record on appeal contains no reporter’s
record of the hearing, and the trial court’s order of dismissal states no basis for the
ruling.
          HCESD’s fourth issue is dispositive of the appeal, and we proceed to
consideration of that issue, in which HCESD asserts that the district court erred in
holding that HCESD failed to exhaust its administrative remedies within the TWCC
by not filing a response to Miller’s appeal to the TWCC Appeals Panel.
Judicial Review of TWCC Appeals
          An agency’s enabling legislation determines the procedures for obtaining
review of agency decisions.  Texas Natural Resource Conservation Comm’n v. Sierra
Club, 70 S.W.3d 809, 811 (Tex. 2002).  The Labor Code creates a modified trial de
novo procedure that applies only to judicial review of TWCC actions involving
“eligibility for . . . income . . . benefits.” Tex. Lab. Code Ann. § 410.301(a) (Vernon
1996); see Albertson’s, Inc. v. Sinclair, 984 S.W.2d 958, 960 (Tex. 1999).
          Miller’s motion to dismiss pled, among other grounds urging lack of subject
matter jurisdiction, that HCESD failed to exhaust its administrative remedies by
failing to file a response to Miller’s request for review of the contested-case hearing
officer’s decision with the TWCC Appeals Panel.  Shortly before the trial court
dismissed HCESD’s case with prejudice on jurisdictional grounds, the supreme court
issued its opinion in Dubai Petroleum Co. v. Kazi, 12 S.W.3d 71(Tex. 2000).  Under
Kazi, lack of compliance with statutory prerequisites to bringing suit should no longer
be treated as jurisdictional, but as an issue the parties may raise on the merits in
determining whether the party bringing suit has established its right to proceed under
the statute.  Id. at 76-77; see Fincher v. Board of Adjustment, 56 S.W.3d 815, 817
(Tex. App.—Houston [1st Dist.] 2001, no pet.).  
          Labor Code Section 410.251, entitled “Exhaustion of Remedies,” provides the
following description of a party entitled to judicial review:
A party that has [1] exhausted its administrative remedies under this
subtitle and that [2] is aggrieved by a final decision of the appeals panel
may seek judicial review under this subchapter and Subchapter G, if
applicable.

Tex. Lab. Code Ann. § 410.251 (Vernon 1996) (brackets added).

          HCESD acknowledges that Labor Code section 410.202(b) states that, as
respondent, HCESD “shall” file a response to the appellant’s (Miller’s) request for
review and concedes that it did not.  See  Tex. Lab. Code Ann. § 410.202(b). 
However, HCESD argues, the Labor Code “does not require this response as a
prerequisite to judicial review or prescribe any sanctions or penalties if the prevailing
party does not do so.”  We disagree and agree with the trial court that HCESD did not
establish its right to proceed under section 410.251 of the Labor Code because
HCESD did not comply with section 410.202(b) and (c) by filing a response to
Miller’s request for review before the TWCC Appeals Panel.
          Labor Code Section 410.202(c) required that both Miller’s request for appeal
for the TWCC Appeals Panel and HCESD’s mandatory section 410.202(b) response
“must clearly and concisely rebut or support the decision of the hearing officer on
each issue on which review is sought.”  See Tex. Lab. Code Ann. § 410.202(b)
(Vernon 1996).
          As stated in Ankrom v. Dallas Cowboys Football Club, Ltd., 900 S.W.2d 75
(Tex. App.—Dallas 1995, writ denied):
When the worker’s compensation statute directs that action be taken in
a certain way, it may be performed in no other manner. . . .  The
provisions of the statute with respect to the successive steps in the
progress and maturity of a claim are mandatory, and the provisions of
the statute must be complied with or an action is not maintainable in the
courts.  See Sanchez v. Aetna Casualty & Sur. Co., 543 S.W.2d 888, 889
(Tex. Civ. App.—San Antonio 1976, writ ref’d n.r.e.); Castillo v. Allied
Ins. Co., 537 S.W.2d 486, 487 (Tex. Civ. App.—Amarillo 1976, writ
ref’d n.r.e.).

Id. at 78.
          HCESD’s failure or refusal to comply with sections 410.202(b) and (c) of the
Labor Code interfered with the mandatory “successive steps in the progress and
maturity of [Miller’s] claim.”  See Ankrom, 900 S.W.2d at 78.  For us to sanction
HCESD’s conduct would be to make it optional with a party before the TWCC
whether to participate before the appeals panel in its conduct of its statutory function. 
The vitality and thoroughness of the agency review process will be diluted if parties
are allowed the option to participate or not in the successive phases.  We hold that,
by not complying with sections 410.202(b) and (c) within the TWCC, HCESD failed
to establish its right to proceed to seek judicial review under section 410.251 of the
Labor Code.  The trial court correctly concluded that HCESD failed to exhaust its
administrative remedies, but that failure is no longer a bar to subject-matter
jurisdiction under Kazi.  See id. at 76-77; Fincher, 56 S.W.3d at 817.  Accordingly,
the trial court should have rendered judgment that HCESD take nothing rather than
dismiss HCESD’s case for lack of subject-matter jurisdiction.  
          HCESD’s fourth issue is overruled.
 Conclusion
          We reverse the trial court’s order of dismissal for lack of subject-matter
jurisdiction and render judgment on the merits that HCESD take nothing.
 


     Lee Duggan, Jr. 
                                                                        Justice

Panel consists of Chief Justice Radack and Justice Duggan.
  Former Chief Justice
Michael H. Schneider, who retired from the Court before the issuance of this opinion,
did not participate in this decision.  
