Opinion issued June 23, 2016




                                    In The

                             Court of Appeals
                                   For The

                         First District of Texas
                           ————————————
                            NO. 01-14-00479-CV
                          ———————————
                     MARVINELL HARLAN, Appellant
                                      V.
 TEXAS DEPARTMENT OF INSURANCE, DIVISION OF WORKERS’
     COMPENSATION (TDI-DWC), DR. IKEDINOBI ENI, AND
ADMINISTRATIVE HEARING OFFICER JACQUE COLEMAN, Appellees


                  On Appeal from the 190th District Court
                           Harris County, Texas
                    Trial Court Case No. 2013-64138-A


                        MEMORANDUM OPINION

      Appellant Marvinell Harlan appeals from a take-nothing judgment rendered

after pleas to the jurisdiction and Rule 91a motions to dismiss were granted in

favor of appellees, Texas Department of Insurance, Division of Workers’
Compensation     (TDI-DWIC)      (the   “Division”),   Dr.   Ikedinobi    Eni,   and

Administrative Hearing Officer Jacque Coleman. In her brief, Harlan raises six

issues, all of which challenge the trial court’s failure to inquire about the factual

basis for her claims. The appellees argue that the trial court properly dismissed the

claims.

      We agree that the claims were properly dismissed. The Division and its

administrative hearing officer both enjoyed sovereign immunity. Because Harlan

did not plead any basis to overcome Dr. Eni’s statutory immunity from liability,

see TEX. LAB. CODE § 413.054, the claim against him had no basis in law.

Accordingly, we affirm.

                                   Background

      Marvinell Harlan was a middle-school math teacher for the now-defunct

North Forest Independent School District. In January 2012, she tripped and fell on

the way to her classroom. Harlan hit her head on a cement block and was taken to a

hospital for emergency care. She later filed a claim for worker’s compensation

benefits. In particular, she sought additional-income payments. Those were denied

based on the report of the designated doctor, Dr. Ikedinobi Eni, who concluded that

Harlan had reached maximum medical improvement by May 17, 2012, and that

she had a whole-body impairment rating of 0%.




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      Harlan    contested   this   decision.   After   a   contested-case    hearing,

Administrative Hearing Officer Jacque Coleman determined that Harlan was not

entitled to additional-income payments. An appeals panel affirmed the decision,

and Harlan sought judicial review in the district court, filing suit against North

Forest ISD, the Division, Dr. Eni, and Administrative Hearing Officer Coleman.

The Division, Dr. Eni, and Coleman filed a plea to the jurisdiction, alleging

immunity, and a Rule 91a motion to dismiss. The trial court granted both the plea

to the jurisdiction and the Rule 91a motion. It severed these orders making the

dismissal of Harlan’s claims against these defendants final. Harlan filed an appeal.

                                      Analysis

      On appeal, Harlan raises six issues challenging the trial court’s take-nothing

judgment. In all six issues, generally, Harlan challenges the trial court’s failure to

inquire about the factual allegations forming the basis for her claims. However, as

explained below, the dismissal of these claims was based on purely legal

considerations rather than the facts relating to her disagreement with the denial of

worker’s compensation benefits.

   I. Sovereign immunity of state agency

      In the trial court, the Division asserted that it had sovereign immunity from

suit and that Harlan had not pleaded a valid waiver of immunity. Sovereign

immunity protects the State, its agencies, and their officers by affording them



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immunity from suit and immunity from liability. See City of Houston v.

Downstream Envtl., 444 S.W.3d 24, 32 (Tex. App.—Houston [1st Dist.] 2014, pet.

denied). A plea to the jurisdiction based on sovereign immunity challenges a trial

court’s subject-matter jurisdiction. See State v. Holland, 221 S.W.3d 639, 642

(Tex. 2007); Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 225–26

(Tex. 2004). The purpose of a plea to the jurisdiction 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). Ordinarily, a plea to the jurisdiction will

be decided “without delving into the merits of the case.” Id. We review de novo the

trial court’s ruling on a plea to the jurisdiction. City of Houston v. Rhule, 417

S.W.3d 440, 442 (Tex. 2013) (per curiam).

      The Texas Department of Insurance is a state agency. TEX. LAB. CODE

§ 402.001. In her petition, Harlan did not plead any waivers of sovereign

immunity. Thus, we conclude that the Division retained sovereign immunity. As

such, the trial court properly granted the plea to the jurisdiction in favor of the

Division.

   II. Statutory immunity of designated doctor

      Dr. Eni was the designated doctor, appointed by the Division to examine

Harlan. See id. § 408.0041(a). In her petition, Harlan alleged that she was

dissatisfied with his opinion because it was based on incomplete information. Dr.



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Eni’s plea to the jurisdiction and Rule 91a motion asserted that he was immune

from liability because he performed his duties as the designated doctor in good

faith, that Harlan’s claims against him had no basis in law, and that the court could

offer her no relief against him.

      Under the Labor Code, the designated doctor “has the same immunity from

liability as the commissioner.” Id. § 413.054. “The commissioner is not liable in a

civil action for an act performed in good faith in the execution of duties as

commissioner.” Id. § 402.00123. Nowhere in Harlan’s petition does she allege that

Dr. Eni failed to act in good faith or acted in bad faith.

      Rule 91a permits a party to move to dismiss a cause of action on the grounds

that it has no basis in law or fact. “A cause of action has no basis in law if the

allegations, taken as true, together with inferences reasonably drawn from them, do

not entitle the claimant to the relief sought.” TEX. R. CIV. P. 91a.

      Harlan’s allegations against Dr. Eni are essentially that his report and

findings are incorrect. As pointed out in the appellees’ brief, this is a factual

question to be resolved in Harlan’s suit for judicial review in her case against

North Forest ISD. But even taking the factual allegations as true, Harlan has

pleaded no legal basis to overcome Dr. Eni’s statutory immunity from liability.

TEX. LABOR CODE § 413.054. As such, her cause of action has no basis in law, and

the trial court correctly dismissed the claims against him. See TEX. R. CIV. P. 91a.



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   III.      Immunity of administrative hearing officer

      Coleman was the administrative hearing officer who presided over Harlan’s

contested-case hearing. In her petition, Harlan alleged that Coleman signed the

decision that was appealed and failed to grant continuances. Harlan also

complained that Coleman refused to consider her evidence but did consider

Dr. Eni’s report, noted Harlan’s disagreement with Dr. Eni’s findings in writing,

erred by making a factual determination based on weighing the evidence, and

advised the insurance carrier’s attorney to pay an overdue ambulance bill.

      Generally, a public official sued in her official capacity is protected by the

same sovereign immunity as the state agency she represents. See Tex. A & M Univ.

Sys. v. Koseoglu, 233 S.W.3d 835, 844 (Tex. 2007); Downstream Envtl., 444

S.W.3d at 32. We already have determined that the trial court properly granted the

plea to the jurisdiction in favor of the Division on the basis of sovereign immunity.

As an employee and official of the Division, Coleman likewise was immune from

suit. See Koseoglu, 233 S.W.3d at 844; Downstream Envtl., 444 S.W.3d at 32.

Coleman also was immune from suit because judicial immunity applies to

administrative law judges and similar quasi-judicial officials. See Sledd v. Garrett,

128 S.W.3d 592, 594 (Tex. App.—Houston [14th Dist.] 2003, no pet.).

      Ultra vires claims are an exception to this sort of immunity. See City of El

Paso v. Heinrich, 284 S.W.3d 366, 369–70 (Tex. 2009). An ultra vires claim seeks



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to compel a state actor to comply with a nondiscretionary duty. See id. at 372. To

assert an ultra vires claim, the plaintiff must not complain of the official’s exercise

of discretion, but instead must allege and prove that the state official “acted

without legal authority or failed to perform a purely ministerial act.” Id. Harlan’s

petition did not allege that Coleman failed to perform a purely ministerial act. She

questioned Coleman’s performance of her discretionary functions as an

administrative hearing officer. For that, Coleman enjoys immunity, and the trial

court properly granted the plea to the jurisdiction.

                                     Conclusion

         We overrule all of Harlan’s issues, and we affirm the judgment of the trial

court.




                                               Michael Massengale
                                               Justice

Panel consists of Justices Higley, Bland, and Massengale.




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