                                  NO. 07-12-00232-CV

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                        PANEL D

                                   JANUARY 8, 2013


                         WENDELL H. TAYLOR, APPELLANT

                                            v.

                  LUBBOCK REGIONAL MHMR AND JI TEXAS RISK
                    MANAGEMENT AND TEXAS DEPARTMENT
                     OF INSURANCE DIVISION OF WORKERS'
                          COMPENSATION, APPELLEES


            FROM THE 99TH DISTRICT COURT OF LUBBOCK COUNTY;

           NO. 2012-501,151; HONORABLE WILLIAM C. SOWDER, JUDGE


Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.


                               MEMORANDUM OPINION


      In this interlocutory appeal, appellant Wendell H. Taylor, appearing pro se,

appeals two orders 1 of the trial court granting the pleas to the jurisdiction of appellees

Lubbock Regional MHMR, JI Specialty Services, Inc., Texas Council Risk Management

Fund and Texas Department of Insurance-Workers’ Compensation Division and

      1
         See Tex. Civ. Prac. & Rem. Code § 51.014(a)(8) (West 2012) (permitting
interlocutory appeal from an order that “grants or denies a plea to the jurisdiction by a
governmental unit”).
dismissing portions of Taylor’s suit. 2      We will affirm in part, reverse in part, and

otherwise remand for further proceedings.


                                          Background


       On February 10, 2009, while acting in the course and scope of his employment

with MHMR, Taylor sustained a compensable injury.                 MHMR is a self-insured

governmental entity for purposes of the Texas Workers’ Compensation Act.


       On December 1, 2011, the Division conducted a contested case hearing to

determine if Taylor’s injury “extend[ed] to and include[d] chronic pain, facet arthrosis,

disc pathology, fibromyalgia, hyper reflexive, sleep problems and osteoporosis.” The

hearing examiner found these conditions did not “arise out of or naturally flow from the

compensable injury of February 10, 2009.” The appeals panel adopted the decision by

notice of February 13, 2012. Taylor then brought suit in district court.


       Taylor’s petition, of some eighty-four pages, also names JI Specialty Services,

the Risk Management Fund, and the Workers’ Compensation Division as defendants.

Besides seeking judicial review of the decision of the appeals panel, Taylor complains

of intentional tortious acts by all appellees summed up as “altering and omitting medical

records, which lead to causing detrimental harm, all done intentionally, to extort

plaintiff.” Elsewhere in the pleading, Taylor asserts he was denied proper treatment and

medication.      Much later, the pleading contains a heading entitled, “Undisputable

Evidence of Bad Faith.” Here Taylor asserts MHMR, “the Insurance Company,” and the

Division subjected him to “detrimental health treatment in bad faith” by referring him to a
       2
           Appellees are each identified here as they were in the trial court’s orders.
                                               2
“work hardening” program with knowledge of an MRI showing spinal disc abnormalities.

In addition to the recovery of lifetime healthcare benefits, Taylor seeks damages for

mental anguish, pain and neglect, unspecified “losses” and out-of-pocket expenses,

punitive damages, attorney’s fees and court costs.


       All defendants filed pleas to the jurisdiction. By an amended order of August 28,

2012, the trial court dismissed Taylor’s causes of action against JI Specialty Services

and the Risk Management Fund for want of subject matter jurisdiction. 3 The plea was

also granted as to MHMR on all claims except Taylor’s suit for judicial review of the

appeals panel’s February 13, 2012 decision. In a separate amended order of the same

date, the trial court granted the Division’s plea to the jurisdiction and dismissed Taylor’s

claims against the Division.


                                         Analysis


       At the outset, we point out Taylor’s voluminous trial court pleadings and brief on

appeal are difficult to follow. Appellees contend Taylor’s brief is so deficient that we

should find he waived the right of appeal. It is clear Taylor does not agree with the

orders of the trial court which he challenges on appeal and resolution of the matter is a

question of law subject to de novo review. We will address the merits of his appeal.

Tex. R. App. P. 38.9. 4


       3
        The original orders from which appeal is taken were signed on June 4, 2012.
On our own motion, we abated the appeal for clarification of the orders. Taylor v.
Lubbock Reg’l MHMR, No. 07-12-0232-CV, 2012 Tex. App. Lexis 6417 (Tex.App.--
Amarillo Aug. 2, 2012) (per curiam order). Amended orders were signed August 28,
2012, and the appeal reinstated.

                                             3
       A plea to the jurisdiction challenges the subject-matter jurisdiction of the trial

court. State v. Holland, 221 S.W.3d 639, 642 (Tex. 2007). Whether the trial court lacks

subject-matter jurisdiction is a question of law we review de novo. Id. A plea to the

jurisdiction may be presented as either an attack on the sufficiency of the pleadings or

an evidentiary attack on the existence of jurisdictional facts. Texas Dep’t of Parks &

Wildlife v. Miranda, 133 S.W.3d 217, 226-27 (Tex. 2004). We liberally construe the

plaintiff's petition, looking to the pleader's intent. Holland, 221 S.W.3d at 642-43.


Claims for Benefits Not Presented to the Appeals Panel


       The trial court determined that Taylor’s pleadings asserted a claim for judicial

review of the decision of the appeals panel. But Taylor’s petition seeks additional relief

from MHMR such as lifetime medical benefits.          See Saenz v. Fidelity & Guar. Ins.

Underwriters, 925 S.W. 2d 607, 609 (Tex. 1996) (citing Tex. Lab. Code Ann. §

408.021(a) for such benefit).


       Through the Workers’ Compensation Act, the Legislature has vested in the

Division the exclusive power to award workers’ compensation benefits, subject to

judicial review. Saenz, 925 S.W.2d at 612. A Division decision is subject to judicial

review only after the aggrieved party has exhausted administrative review through a

contested case hearing or arbitration, followed by an appeal to a Division appeals panel.


       4
         At the same time, and while we liberally construe pro se pleadings and briefs,
we must hold pro se litigants to the same standards as licensed attorneys, requiring that
they comply with applicable laws and rules of procedure. Otherwise, a pro se litigant
would obtain an unfair advantage over a litigant who is represented by counsel. Porter
v. Olivares, No. 05-11-01213-CV, 2012 Tex. App. Lexis 5293, at *2-3 (Tex.App.--Dallas
July 3, 2012, pet. filed) (mem. op.).
                                             4
Kennedy v. Turner Indus. Group, LLC, No. 14-09-00377-CV, 2010 Tex. App. 2821, at *8

(Tex.App.--Houston [14th Dist.] Apr. 20, 2010, pet. denied) (mem. op.) (citing Tex. Lab.

Code Ann. §§ 408.001(a), 410.251, 410.302(b) (West 2006)). “Consequently, a party’s

failure to exhaust administrative remedies under the [Act] . . . deprives the district court

of subject-matter jurisdiction over the party’s suit for judicial review of the appeals

panel’s decision.” Frank v. Liberty Ins. Corp., 255 S.W.3d 314, 320 (Tex.App.--Austin

2008, pet. denied) (citation omitted). Judicial review of the decision of the appeals

panel is limited to the issues it decided. Tex. Lab. Code Ann. § 410.302(b) (West

2006); Krueger v. Atascosa County, 155 S.W.3d 614, 618-619 (Tex.App.--San Antonio

2004, no pet.) (stating “[t]he language of § 410.302 must be given its plain meaning,

which is that judicial review is limited to issues ‘decided by’ the [appeals panel]” and

holding the appellant could not obtain judicial review of an issue when she failed to raise

the issue before the appeals panel and the panel’s decision specifically stated the issue

was not considered).


       Here, to the extent Taylor seeks relief against MHMR for benefits not presented

to the appeals panel, he has not exhausted administrative remedies and the trial court,

on judicial review, is without jurisdiction to adjudicate those issues. The trial court did

not err in dismissing for want of jurisdiction all of Taylor’s claims for benefits under the

Workers’ Compensation Act which were not first tested by the administrative agency

process.




                                             5
Tort Theories


       Taylor also asserts claims for damages via allegations of tortious conduct by

MHMR, the Risk Management Fund, JI Specialty Services, and the Division. Appellees

asserted in their pleas to the jurisdiction that they are immune from suit for such claims

under the doctrines of sovereign or governmental immunity. 5 As we perceive them,

Taylor’s tort claims arise from actions taken by appellees in connection with his

attempts to obtain compensation benefits. Addressing appellees’ claims of immunity,

we do not consider whether any such claims might also be barred by the exhaustion of

remedies doctrine. See, e.g., American Motorists Ins. Co. v. Fodge, 63 S.W.3d 801,

804-05 (Tex. 2001) (holding a trial court lacks subject matter jurisdiction over bad faith

claims arising from allegedly delayed or denied workers’ compensation benefits unless

and until the worker obtains a timely, final administrative decision from the Division of

entitlement to the disputed medical benefits). 6




       5
         Sovereign immunity protects the state and its various divisions, such as
agencies and boards, from suit and liability, while governmental immunity affords similar
protection to political subdivisions, such as counties, cities, and school districts. Wichita
Falls State Hosp. v. Taylor, 106 S.W.3d 692, 694 n.3 (Tex. 2003).
       6
         Because the issue before us deals merely with the jurisdiction of the trial court
to adjudicate his claims, we also do not consider whether Taylor has alleged causes of
action recognized by Texas law. See Texas Mutual Insurance Co. v. Ruttiger, No. 08-
0751, 2012 Tex. Lexis 501, at *40-42 (Tex. June 22, 2012) (op. on reh’g) (holding
“claims against workers’ compensation insurers for unfair settlement practices may not
be made under the Insurance Code, but . . . claims under the Insurance Code may be
made against those insurers for misrepresenting provisions of their policies,” and “an
injured employee may not assert a common-law claim for breach of the duty of good
faith and fair dealing against a workers’ compensation carrier”).
                                             6
         In none of the statutory or case law we have reviewed do we find a reason to

doubt that MHMR, the Division and the Risk Management Fund have immunity from suit

against Taylor’s tort claims. See Tex. Lab. Code Ann. §§ 501.002 & 504.002 (West

2006). Hence, his tort claims against those defendants are barred absent a waiver of

that immunity.    A waiver of sovereign or governmental immunity from suit must be

expressed in clear and unambiguous statutory language. Travis Cent. Appraisal Dist. v.

Norman, 342 S.W.3d 54, 58 (Tex. 2011); Tex. Gov’t Code Ann. § 311.034 (West Supp.

2012).


         By the State Applications Act, the Legislature waived state agencies’ sovereign

immunity to allow injured workers to bring workers’ compensation claims, Kerrville State

Hosp. v. Fernandez, 28 S.W.3d 1, 7 (Tex. 2000) (current version at Tex. Lab. Code

Ann. § 501.001-.051 (West 2006 & Supp. 2012)). Many provisions of the Workers’

Compensation Act are thereby made applicable to state agencies such as the Division.

See § 501.002(a) (providing that “[t]he following provisions of Subtitles A and B apply to

and are included in this chapter except to the extent that they are inconsistent with this

chapter”).    But § 501.002(d) provides, “[n]either this chapter nor [the Workers’

Compensation Act] authorizes a cause of action or damages against the state, a state

agency, or an employee of the state beyond the actions and damages authorized by

[the Texas Tort Claims Act].” 7 The Tort Claims Act does not waive immunity for suit for


         7
         The Texas Tort Claims Act waives immunity from suit for two types of claims:
(1) those involving property damage, personal injury, or death arising from the operation
or use of a motor-driven vehicle or motor-driven equipment; and (2) those involving
personal injury or death caused by a condition or use of tangible personal property or
real property. Tex. Civ. Prac. & Rem. Code Ann. § 101.021 (West 2011).
                                            7
intentional torts. Id. § 101.057(2) (West 2011) (“This chapter does not apply to a claim .

. . arising out of assault, battery, false imprisonment, or any other intentional tort . . . .”). 8

We see no clear and unambiguous waiver of the Division’s immunity from suit for tort

claims for damages like those Taylor asserts. 9


       MHMR asserts it is subject to the Political Subdivisions Law, Chapter 504 of the

Labor Code, which concerns workers’ compensation insurance coverage for employees

of political subdivisions. Tex. Lab. Code Ann. §§ 504.001-.073 (West 2006 & Supp.

2012). “Political subdivision” includes a community center for mental health and mental

retardation services established under Subchapter A, Chapter 534, Health and Safety

Code. Tex. Lab. Code Ann. § 504.001(3) (West 2006); see Tex. Health & Safety Code

Ann. §§ 534.001-.106 (West 2010 & Supp. 2012); Lubbock Regional Mental Health and

Mental Retardation Center v. McMenamy, No. 07-03-0174-CV, 2004 Tex. App. Lexis


       8
         “Actions taken with the specific intent to inflict harm are characterized as
intentional torts.” Rusk State Hospital v. Black, No 10-0548, 2012 Tex. Lexis 731, at
*28 (Tex. Aug. 31, 2012). “[B]ad faith is an intentional tort requiring that the insurer
“‘knew or should have known” that it had no reasonable basis for denying or delaying
payment of a claim.’” Milner v. City of Leander, 64 S.W.3d 33, 39-40 (Tex. App.--Austin
2000, no pet.) (quoting Transportation Ins. Co. v. Moriel, 879 S.W.2d 10, 18 (Tex.
1994)).
       9
        See also Tex. Lab. Code Ann. § 416.002(b) (West 2006) (providing actions
against governmental entity for breach of duty of good faith and fair dealing are
governed by Chapters 101 and 104 of the Civil Practice and Remedies Code); Tex. Civ.
Prac. & Rem. Code Ann. § 104.001 (West 2011). Chapter 104 does not contain a
waiver of immunity. Tex. Civ. Prac. & Rem. Code Ann. § 104.008 (“This chapter does
not waive a defense, immunity, or jurisdictional bar available to the state or its officers,
employees, or contractors”). See also Spellmon v. Texas Dep’t of Crim. Justice, No.
14-96-0237-CV, 1997 Tex. App. Lexis 1205, at *8 n.4 (Tex.App.--Houston [14th Dist.]
Mar. 13, 1997, no writ) (not designated for publication) (stating §§ 104.001 and 104.008
“do not create a cause of action nor provide legislative consent to suit or waiver of
immunity, but instead provide for indemnification of state employees”); Montana v.
Patterson, 894 S.W.2d 812, 815 (Tex.App.--Tyler 1994, no writ) (discussing § 104.002).
                                                8
4443, at *1-2 & 2 n.3 (Tex.App.--Amarillo May 14, 2004, no pet.) (mem. op.) (describing

MHMR’s proof of status as community center). Neither in Chapter 504 nor elsewhere

do we find a clear and unambiguous waiver of immunity permitting suit against MHMR

for intentional torts like those asserted by Taylor. See Permian Basin Cmty. Ctrs. for

Mental Health & Mental Retardation v. Limon, No. 11-07-00321-CV, 2008 Tex. App.

LEXIS 5109 (Tex.App.--Eastland July 10, 2008, no pet.) (mem. op.) (noting no waiver of

sovereign immunity under Chapter 534 for intentional tort of fraud). Section 504.002(c)

provides, “[n]either this chapter nor [the Workers’ Compensation Act] authorizes a

cause of action or damages against a political subdivision . . . beyond the actions and

damages authorized by” the Texas Tort Claims Act. Additionally, § 504.053(e) states

“[n]othing in this chapter waives sovereign immunity or creates a new cause of action.”

Manbeck v. Austin Indep. School Dist., No. 11-0429, 2012 Tex. Lexis 747, at *4-5 (Tex.

Aug. 31, 2012) (per curiam).


      The Risk Management Fund is a self-insurance pool formed by Texas community

MHMR centers.     The Fund provides workers’ compensation, liability, and property

coverage programs for its member centers. Through the Fund, member centers pool

their risks and combine resources to obtain greater stability and economies of scale for

risk management. See Hill v. Texas Council Risk Mgmt. Fund, 20 S.W.3d 209, 211

(Tex.App.--Texarkana 2000, pet. denied) (“Pursuant to the Interlocal Cooperation Act,

[Tex. Gov’t Code Ann. §§ 791.001-.035 (West 2012)] the Texas Council of Community

MHMR Centers, Inc., in coordination with several mental health/mental retardation

community centers, created the Texas Council Risk Management Fund as a means of

self-insuring themselves” (footnote omitted)). Unless waived, the Risk Management
                                           9
Fund is entitled to governmental immunity. Cf. Ben Bolt-Palito Blanco Consol. Indep.

Sch. Dist. v. Tex. Political Subdivisions Prop./Cas. Joint Self-Ins. Fund, 212 S.W.3d

320, 326 (Tex. 2006) (concluding a self-insurance fund consisting of local governments

exists “as a distinct governmental entity entitled to assert immunity in its own right for

the performance of a governmental function” thus “enjoy[ing] the same governmental

immunity as other political subdivisions”).

       In sum, Taylor does not point us to, and we do not find, a statute that clearly and

unambiguously waives immunity from suit for damages for the tort claims Taylor alleges

against MHMR, the Risk Management Fund, and the Division. We agree with those

entities Taylor’s tort claims against the Division are barred by sovereign immunity and

his tort claims against MHMR and the Risk Management Fund are barred by

governmental immunity.


       Governmental Immunity Claim of Specialty Services


       Specialty Services argues it enjoys, as third-party administrator for MHMR, the

governmental immunity of MHMR. For this contention, Specialty Services directs us to

Milner v. City of Leander, 64 S.W.3d 33, and Campbell v. Jones, 153 Tex. 101, 264

S.W.2d 425, 427 (1954). Milner involves an injured worker’s bad faith-claims against

her employer the City of Leander, a self-insured governmental entity, and against an

intergovernmental risk pool and the city’s third-party claims adjuster, Axia. Milner, 64

S.W.3d at 35, & 35 n.1.       The trial court granted summary judgment on immunity

grounds in favor of the city and the risk pool. Id. at 38. It also granted summary

judgment that Axia did not owe Milner a duty of good faith and fair dealing. Id. at 41.

                                              10
The court of appeals affirmed judgment for Axia, but because it agreed the claims

adjustor did not owe Milner a duty of good faith and fair dealing, not because it found

Axia shared the immunity of the city and risk pool. Milner, 64 S.W.3d at 41. Milner

does not support a contention Specialty Services possesses governmental immunity.


       Campbell v. Jones is equally inapposite. There the trustees of a school district

were held to have no personal liability to a teacher for breach of contract because they

believed in good faith that the teacher had not complied with the State’s degree

requirements. 264 S.W.2d at 427. The case belongs in the line of those supporting the

affirmative defense of official immunity available to public officials executing

discretionary acts in the course of their authority. Ballantyne v. Champion Builders, Inc.,

144 S.W.3d 417, 422 (Tex. 2004).         It adds nothing to Specialty Services’ claim of

governmental immunity.


       We also have examined Foster v. Teacher Ret. Sys., 273 S.W.3d 883 (Tex.App.-

-Austin 2008, no pet.), a case not cited by the parties. There, Aetna 10 administered the

insurance plan of the Teacher Retirement System, a state agency. Foster, an insured

claiming injury from a coverage decision by Aetna, sued Aetna and TRS alleging claims

for breach of contract, breach of the duty of good faith and fair dealing, violations of the

insurance code, and violations of the deceptive trade practices act. Id. at 885. Aetna

and TRS filed pleas to the jurisdiction which the trial court granted.




       10
         Aetna Life Insurance Company and Aetna Health Management, LLC. 273
S.W.3d at 885.
                                             11
      On appeal Foster argued Aetna was not entitled to assert sovereign immunity.

Disagreeing, the Austin court looked closely at the relationship between TRS and Aetna

as created and defined by their contract. Id. at 888. The analysis adopted by the court

in Foster, on the merits of which we express no opinion, thus depended on evidence not

present in the record before us. The record here does not include a contract or other

evidence establishing and defining the relationship between MHMR and Specialty

Services. And, unlike Foster, Taylor claims intentionally tortious conduct by Specialty

Services.


      We do not prejudge whether a more developed record might support Specialty

Services’ claim of immunity, and caution the parties not to read into this discussion a

suggestion otherwise. We simply hold the jurisdiction of the trial court over Taylor’s

claims against Specialty Services has not been shown to be precluded by the

exhaustion of remedies doctrine or governmental immunity.           Cf. GAB Business

Services, Inc. v. Moore, 829 S.W.2d 345, 350 (Tex.App.--Texarkana 1992, no writ)

(holding evidence did not clearly establish private insurance adjuster handling workers’

compensation claims for Texas Municipal League Intergovernmental Risk Pool was

agent of risk pool entitled to governmental immunity; rather, evidence showed adjuster

was an independent contractor acting on its own authority and not entitled to immunity);

Campbell v. Tex. Employers’ Ins. Ass’n, 920 S.W.2d 323, 329-30 (Tex.App.--Houston

[1st Dist.] 1995, no writ) (following GAB and holding private companies under contract

to provide specific services to members of Texas Association of School Boards

Workers’ Compensation Self-Insurance Fund were not entitled to shield of

governmental immunity).     Accordingly, we find the trial court erred in sustaining
                                          12
Specialty Services’ plea to the jurisdiction and dismissing Taylor’s claims against that

defendant.


                                         Conclusion


       We find the trial court correctly dismissed Taylor’s claims made the subject of the

pleas to the jurisdiction of Lubbock Regional MHMR, Texas Department of Insurance-

Workers’ Compensation Division and Texas Council Risk Management Fund, but erred

by dismissing the claims alleged against JI Specialty Services, Inc.          We therefore

reverse the order of the trial court as to JI Specialty Services, 11 affirm the orders of the

trial court as to MHMR, Risk Management Fund and the Division, and remand the case

to the trial court for further proceedings consistent with this opinion.




                                                   James T. Campbell
                                                       Justice




       11
           Our conclusion that JI Specialty Services, Inc. has not established its
governmental immunity might lead one to the conclusion we lack jurisdiction over the
interlocutory appeal of the grant of its plea to the jurisdiction, and should dismiss the
appeal. See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(8) (West Supp. 2012). We
do not do so. See Texas Dep’t of Crim. Just. v. Simons, 140 S.W.3d 338, 349 (Tex.
2004) superseded by statute on other grounds, Tex. Gov’t Code Ann. § 311.034 (West
Supp. 2012) (holding that proper course of action in such circumstances is to rule on
merits of appeal rather than dismiss).

                                              13
