                                 NO. 07-05-0268-CV

                            IN THE COURT OF APPEALS

                     FOR THE SEVENTH DISTRICT OF TEXAS

                                    AT AMARILLO

                                       PANEL D

                                 APRIL 11, 2006
                        ______________________________

                     STATE OFFICE OF RISK MANAGEMENT,

                                                            Appellant

                                           v.

  RACHEL LEIGH HERRERA, VICTORIA DANIELLE HERRERA, MATTHEW RYEN
 HERRERA, KELCEY MERCEDES DENA HERRERA, CARE’N DESTINY HERRERA,
      ROBERT R. HERRERA, ELVA H. HERRERA, MANUEL A. HERRERA,
BENEFICIARIES of JOSE ARTURO HERRERA, DECEASED, and TEXAS MUNICIPAL
    LEAGUE INTERGOVERNMENTAL RISK POOL and/or CITY OF FRIONA,

                                                     Appellees
                       _________________________________

            FROM THE 297TH DISTRICT COURT OF PARMER COUNTY;

             NO. 9122; HON. GORDON HOUSTON GREEN, PRESIDING
                       _______________________________

                                    Opinion
                        _______________________________

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

      The State Office of Risk Management (SORM) appeals from an order dismissing

its attempt to gain judicial review of a ruling by a Texas Worker’s Compensation

Commission appeals panel. The trial court dismissed the matter for want of jurisdiction.
Allegedly, SORM did not timely file its petition with the trial court. SORM disagreed. We

reverse the order of dismissal.

                                         Background

       The dispute arises from the death of Jose Herrera, an officer with the Friona, Texas

Police Department. At the time, he was responding to a call for assistance from the

Parmer County Sheriff’s office. Herrera heard the call while completing paper work at the

Friona police station after his shift ended, and in responding, his vehicle collided with that

of the fleeing suspect outside the Friona city limits. SORM acknowledged that Herrera’s

“legal beneficiaries [were] entitled to receive worker’s compensation death benefits” but

disputed its responsibility for their payment. Allegedly, the officer was not acting within the

course and scope of his employment with the State when he and the suspect collided, but

rather within the scope of his employment with the City of Friona.

       The hearing officer assigned by the Worker’s Compensation Commission to resolve

the matter found that Herrera indeed was acting in the service of the State. Disagreeing,

SORM sought relief from an appeal’s panel. After the latter ultimately sided with the

hearings officer, SORM then petitioned the trial court for relief. It did so 42 days after the

decision of the panel became appealable. This was too late, according to Herrera’s family

members, the City of Friona, and the Texas Municipal League Intergovernmental Risk

Pool. They believed that the agency was required to petition within 30 days and filed a

plea to the jurisdiction of the trial court asserting that contention. The trial court sided with

Herrera, the City and the Risk Pool and dismissed the cause.




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                                         Discussion

       The issue before us is whether SORM had merely 30 days to seek redress from the

trial court. The answer to that, according to all involved, depends upon whether the

allegations the agency sought to adjudicate encompass matters of compensability or

coverage. If they fall within the latter, then the 30-day period supposedly applies; if the

former, then SORM had 40 days to act.

       Statute provides two periods within which one must seek judicial review of a

decision rendered by the Workers’ Compensation Commission. The first is found at

§410.252 of the Labor Code and states that a “party may seek judicial review by filing suit

not later than the 40th day after the date on which the decision of the appeals panel was

filed with the division.” TEX . LAB . CODE ANN . §410.252(a) (Vernon 2006). On the other

hand, if the dispute encompasses matters other than that described in §410.301(a) of the

Labor Code, then the parties must abide by the requirements of “Subchapter G, Chapter

2001, Government Code.” TEX . LAB. CODE ANN . §410.255(a) (Vernon 2006). And, that

subchapter allots only 30 days to perfect judicial review.           TEX . GOV’T CODE ANN .

§2001.176(a) (Vernon 2000).

       Next, matters alluded to in §410.255(a) and within the scope of §410.301(a) are

those disputes “regarding compensability or eligibility for or the amount of income or death

benefits . . . .” TEX . LAB. CODE ANN . §410.301(a) (Vernon 2006) (stating that “judicial review

of a final decision of the appeals panel regarding compensation or eligibility for or the

amount of income or death benefits shall be conducted as provided by this subchapter”).

So, in considering the directives of §§410.252(a), 410.255(a), and 410.301(a), we cannot



                                               3
but hold that a party has 40 days to perfect judicial review of controversies implicating

compensability and eligibility for or the amount of income or benefits. In all other cases,

a litigant simply has 30 days.

        Next, while the Labor Code fails to define the term “compensability,” the legislature

nonetheless told us that a “compensable injury” is one “that arises out of and in the course

and scope of employment for which compensation is payable . . . .” TEX . LAB. CODE ANN .

§ 401.011(10) (Vernon 2006). From this we see that the meaning of “compensable” and

“compensability” may have several elements, and one requires the injury to occur within

the course and scope of the claimant’s employment. See Texas Workers’ Comp. Comm’n

v. Garcia, 893 S.W.2d 504, 515 (Tex. 1995) (citing the question of whether an injury

“occurred in the course and scope of employment” as an example of an issue implicating

“compensability”); Texas Property & Cas. Ass’n v. National Am. Ins. Co., No. 03-05-00401-

CV, 2006 Tex. App. LEXIS 2605 (Tex. App.–Austin March 31, 2006, no pet. h.) (concluding

that whether an employee was within the course and scope of his employment with several

employers is an issue of compensability). In other words, if the litigants are disputing

whether the injury occurred within that scope, the controversy is one involving

compensability.1 Texas Property & Cas. Ass’n. National Am. Ins. Co., 2006 Tex. App.

LEXIS 2605 at *35.

        Next, at the heart of the issue before us lies the topic of who is responsible for

paying the workers’ compensation benefits which all agree are due Officer Herrera’s kin.



        1
         To the extent that the opinion in Morales v. Liberty Mut. Ins. Co., 169 S.W .3d 485 (Tex. App.–El Paso
2005, pet. filed) suggests otherwise, we note that it did not address either the words of the Texas Supreme
Court in Garcia or the statutory definition of “com pen sab le injury.” Cons equ ently, we opt not to follow it.

                                                       4
Furthermore, resolution of that matter depends upon the identity of the governmental body

in whose course and scope of employment he acted when he died. If it was the State’s,

then it is responsible for payment. If it was the City’s, then the city is liable. And, given that

the crux of the dispute actually requires identification of the employer being served at the

time of death, the issue cannot be but one of compensability. Texas Workers’ Comp.

Comm’n v. Garcia, supra; Texas Property & Cas. Ass’n v. National Am. Ins. Co., supra.

So, the time period set forth in §401.252(a) applied here, and SORM had 40 days within

which to petition for judicial review. Having acted within that period, the trial court had

jurisdiction over the controversy and erred in dismissing it.2

        Accordingly, we sustain SORM’s issue, reverse the order of dismissal and remand

the cause for further proceedings. Finally, holding as we do moots the need to address

SORM’s contentions regarding the attorney’s fees awarded those counsel representing

Herrera’s kin.



                                                            Brian Quinn
                                                            Chief Justice




        2
           W e ackn ow ledge that SO RM petitioned the trial court for relief 4 1 days after the appeal panel’s
decision. Yet, no one disputes that the 40 th day was either a weekend or holiday, and the 41st day was the
first day that wa s neith er. Consequently, acting upon the 41st day was perm issible. See T EX . G O V ’T C O D E
A N N . §311.014(b) (Vernon 2005) (stating that when the last day of a statutory period within which one must
act is a Sa turda y, Sunday, or legal holiday, the period is ex tended to include the next day that is none of
thos e).

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