      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                        NO. 03-12-00659-CV



                       Employees Retirement System of Texas, Appellant

                                                   v.

                                   Cynthia A. Garcia, Appellee


     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 201ST JUDICIAL DISTRICT
      NO. D-1-GN-11-002265, HONORABLE SCOTT H. JENKINS, JUDGE PRESIDING



                                            OPINION


               This appeal presents questions of first impression regarding the availability of

occupational-disability retirement benefits for Texas state employees following 2003 amendments

that significantly limited the statutory definition of an “occupational disability.” As amended, the

definition requires that an “occupational disability” “result[] . . . solely from an extremely dangerous

risk of severe physical or mental trauma . . . that is not common to the public at large and that is

peculiar to and inherent in a dangerous duty that arises from the nature and in the course of a

person’s state employment.”1 The most pivotal question we answer concerns the extent to which this

limitation serves to exclude any disability that can be attributed wholly or partly to an employee’s

own injury-producing conduct or instead comprehends that the employee’s injury-producing conduct

may be a component of the risk from which a disability must “solely” result. We conclude that the



       1
        Act of June 1, 2003, 78th Leg., R.S., ch. 1111, § 10, sec. 811.001(12), 2003 Tex. Gen.
Laws 3178, 3180 (codified at Tex. Gov’t Code § 811.001(12)).
answer depends on the circumstances underlying each claim for occupational-disability retirement

benefits. Under the particular circumstances here, we cannot conclude that the agency administering

such benefits, the Employees Retirement System of Texas (ERS), exceeded its lawful discretion in

denying a claim for occupational-disability retirement benefits in light of injury-producing conduct

by the claimant.


                                         BACKGROUND

               The material facts underlying this appeal are largely undisputed. In 2004, the

eventual claimant, appellee Cynthia Garcia, began working as a prison guard for the Texas

Department of Criminal Justice (TDCJ). Following a training period, she was assigned to TDCJ’s

Darrington Unit, a prison facility located in Brazoria County about 30 miles south of Houston.

Garcia’s duties included conducting surveillance of the facility and surrounding area from a position

in one of several guard towers, termed a “perimeter picket” in TDCJ parlance. On July 6, 2005,

Garcia accidentally fell from one of these guard towers while on duty, causing her serious injuries

and giving rise to her claim. The specific layout and dimensions of the guard tower from which

Garcia fell are significant to both the parties’ respective legal arguments and an understanding of

how the accident occurred.

               The guard tower, originally built in the 1960s, consists of an 8-by-8 foot room (also

termed a “guard area”) surrounded by a balcony or catwalk and perched atop a 16-foot-tall brick

structure with a concrete base. The walls of the elevated guard area consist of brick from the floor

up to roughly waist level, then large windows extending upward to the ceiling. A doorway in one

of the walls allows access to the balcony. The room is not air-conditioned—according to Garcia, a

precaution to ensure that guards can carefully monitor sounds outside, albeit one ensuring discomfort

                                                 2
for the guards amid the heat and humidity of Brazoria County’s warmer months. The guards can

obtain some relief, however, by opening windows in the guard area to improve ventilation and

perhaps catch a breeze.

                The elevated guard area is accessed from ground level by entering a secured metal

door leading into the tower base and climbing a 16-foot vertical ladder that is mounted to an interior

wall of the structure. At the top of the ladder is a trapdoor (termed a “perimeter picket hatch cover”

by TDCJ) that is opened upward to allow entry into the elevated room through an opening in the

floor that emerges in one of the room’s four corners. This opening in the corner of the floor is

roughly two feet-by-two feet in dimensions, thus occupying roughly one-fourth of the floor space

along each of the two exterior walls that converge there, and comprising one-sixteenth of the room’s

total floor area.

                Within the room, access to the opening is restricted by—in addition to the

two adjacent exterior walls—a metal railing, bolted to the floor, that extends inward perpendicularly

from one of the walls at roughly a waist-high level. When opened, the trapdoor’s cover can be

temporarily attached to this railing with a “locking device.” The other interior side of the opening

is not permanently obstructed, so as to allow ingress and egress, but can be temporarily cordoned off

with a metal chain emanating from the interior end of the railing that can be attached to the wall

opposite the railing. The parties agree, however, that this chain would not alone physically prevent

a guard from accessing or falling into the opening, although it might provide a visual or tactile

reminder of its proximity, akin to a warning track in baseball.

                Garcia’s accident occurred following a shift change in which she had relieved another

guard from duty in the tower. TDCJ procedures required Garcia to leave the trapdoor cover locked


                                                  3
open until the other guard departed down the ladder and safely reached the ground below, then

close the cover and leave it so until Garcia herself was relieved from duty. As Garcia stood near the

opening awaiting the other guard’s departure, her colleague began attempting to climb down the

ladder while carrying a large bag containing personal belongings. Despite Garcia’s offer to simply

lower the bag on a rope, the departing guard insisted on struggling down the ladder with her bag.

As her colleague’s slower-than-normal descent continued, Garcia stepped out onto the balcony

to signal an officer at another post to send up some ice to her. In a subsequent written statement,

Garcia recounted what happened next:


        After a few minutes I was not able to get the officer’s attention and stepped inside
        [the] tower to drink water from my water jug. By this time [the departing guard] had
        made it down [the ladder] safe and left [the tower] but I had also forgotten the trap
        door was still open. I was drinking water when I noticed a closed window so I set
        my water jug down, walked over to the window and walked right into the opening
        in the floor.


Garcia fell through the uncovered opening to the concrete floor 16 feet below. She suffered serious

injuries that have since led to multiple surgeries with multiple complications and lasting physical

impediments that were found to include a limited ability to stand and walk, chronic swelling in

her lower right extremity, chronic infections, and pain. She was forty-three years of age at the time

of her fall.

               Among the financial compensation or benefits that are potentially available to state

employees who suffer serious workplace injuries, the Legislature has provided them “occupational

disability” retirement benefits—a lifetime monthly retirement annuity, available “regardless of age or

amount of service credit,” for state employees who are determined to be “permanently incapacitated

from the further performance of duty” (a/k/a “disabled”) and whose disability also satisfies a

                                                  4
statutory definition of an “occupational disability.”2 Since 2003, and for purposes of this appeal, the

Legislature has defined “occupational disability” as:


       [D]isability from a sudden and unexpected injury or disease that results solely from
       a specific act or occurrence determinable by a definite time and place and solely from
       an extremely dangerous risk of severe physical or mental trauma or disease that is not
       common to the public at large and that is peculiar to and inherent in a dangerous duty
       that arises from the nature and in the course of a person’s state employment.3


A state employee who meets these requirements is entitled to a monthly annuity equal to at least the

greater of 35% of his or her average monthly salary or $150.4 Where the qualifying employee is a

peace officer, however, the Legislature has provided an enhanced monthly benefit if the officer’s

“occupational disability result[s] from a risk to which law enforcement or custodial officers are

exposed because of the nature of law enforcement or custodial duties.”5 As with other retirement

benefits for state employees, the occupational disability retirement benefits program is administered

by appellee ERS, a statutorily created public corporation governed by a Board of Trustees and

overseen by an Executive Director.6

                Following her accident, Garcia made application to ERS for occupational-disability

retirement benefits with the enhancement provided to qualifying peace officers.7 Agency staff


       2
           See Tex. Gov’t Code §§ 814.202(b), (c), .203, .204, .206.
       3
           Id. § 811.001(12).
       4
           See id. § 814.206.
       5
           Id. § 814.207.
       6
           See generally id. §§ 811.002–.004, 814.001, 815.101, 815.202.
       7
        See id. § 814.201 (requiring application). ERS asserts that if Garcia’s claim is successful,
she would receive a monthly annuity equal to 100% of her monthly salary prior to her injury.

                                                  5
denied the application. Garcia appealed that decision to the ERS Board of Trustees, and the matter

was referred to the State Office of Administrative Hearings (SOAH) for a contested-case hearing

governed by the Administrative Procedure Act (APA).8 By statute, Garcia bore the burden of proof

on all issues.9

                  ERS does not contest (at least for purposes of this appeal) that Garcia proved she

has a “disability”10 and that, as required by the applicable statutory definition of “occupational

disability,” her “disability” is “from a sudden and unexpected injury or disease that results solely

from a specific act or occurrence determinable by a definite time and place,”11 namely the

serious injuries she suffered in her fall. The dispute on appeal, rather, centers on the extent to which

Garcia met her burden regarding the remaining components of the “occupational disability”

definition, specifically:


        (1)       Whether Garcia’s working conditions in the guard tower presented “an
                  extremely dangerous risk of severe physical or mental trauma or disease that
                  is not common to the public at large and that is peculiar to and inherent in a
                  dangerous duty that arises from the nature and in the course of a person’s
                  state employment.”12




        8
         See id. § 815.511(a)–(c) (administrative decision and appeal); see generally id.
§§ 2001.051–.147 (APA provisions regarding contested-case hearings).
        9
             See id. § 815.511(c).
        10
             See id. § 814.202(b).
        11
             See id. § 811.001(12).
        12
             See id. (emphasis added).

                                                    6
       (2)      If so, whether Garcia’s “disability from [her] sudden and unexpected injury”
                (i.e., her fall and its consequences) could be said to “result[] . . . solely from”
                that “extremely dangerous risk.”13


The parties similarly join issue as to whether Garcia met her burden to prove that her “disability,”

if qualifying as an “occupational disability,” could be said to “result from a risk to which [she was]

exposed because of the nature of law enforcement or custodial duties,” as required for her to obtain

the enhanced benefits.14

                ERS’s basic theme was that Garcia bore at least some of the blame for her fall,

if not all of it, such that the fall could not be attributed “solely” to any risk associated from her

working conditions in the guard tower. It emphasized Garcia’s acknowledgments that she had left

the trapdoor cover open, forgotten about it, and overlooked the opening before falling through. To

similar effect, ERS presented testimony from a TDCJ safety officer who had investigated the

incident, Mike Dattalo. Dattalo explained that Darrington prison guards like Garcia had been

required to follow written safety standards regarding the trapdoor covers, known as “Standard

Operating Procedures for Employee Safety” (SOPs), which prescribed the following protocol during

shift changes in the guard towers:


       1.       When the relieving officer arrives, the on duty officer shall lower the picket
                key as outlined in the S.O.P. for transferring security equipment to and from
                perimeter pickets.

       2.       When the relieving officer has entered the bottom of the picket and secured
                the door, [t]he on duty officer shall open the hatch cover.



       13
            See id. (emphasis added).
       14
            See id. § 814.207(a).

                                                    7
       3.      When the relieving officer reaches the top of the picket, the on duty officer
               shall close the hatch cover.

               a.      Using the handle provided, gently lower the hatch cover. Never slam
                       or allow the hatch cover to fall.

       4.      The picket officers shall then conduct the picket inspection as outlined in the
               Post Orders for perimeter pickets.

       5.      After the picket inspection is complete the on duty officer shall open the
               hatch cover as outlined in 2a. above.

       6.      The on duty officer shall ensure that the leaving officer has safely descended
               the ladder to the bottom of the picket.

       7.      The on duty officer shall then close the hatch cover as outlined in 3a. above.

       8.      The on duty officer shall retrieve the picket key from the leaving officer as
               outlined in the S.O.P. for transferring security equipment to and from
               perimeter pickets.

       NOTE:           The hatch cover shall remain closed for the entire tour of duty.


According to Dattalo, Garcia had violated the SOPs by failing to close the trapdoor cover after

her departing colleague had descended the ladder. He had further determined that Garcia had been

“unobservant, daydreaming, inattentive, etc.,” and recommended her for TDCJ discipline. Dattalo

also found fault with Garcia’s failure to put up the chain while the hatch cover was open. While

acknowledging that the chain in itself was insufficient as a physical barrier to prevent a person from

falling through the opening, Dattalo reasoned that it would nonetheless have served to remind her

that the opening was nearby. Assuming these precautions were followed, Dattalo insisted, there was

nothing “extremely dangerous” about Garcia’s working environment in the guard tower.

               While conceding that she had left the trapdoor cover open and forgotten about it,

Garcia disputed the extent of her culpability and its legal significance under the relevant statutory


                                                  8
standards. Garcia presented the testimony of a safety expert and attorney, Katherine Rogers-Fjelstad,

who opined that the trapdoor presented an “extremely dangerous risk” to prison guards and that

TDCJ had taken inadequate measures to make it safer, such as by installing a spring-loaded railing

on the open side, relying instead on the chain, which had to be latched and would not be a barrier to

a fall in any event. Although acknowledging that Garcia’s human error had played a role in her fall

and that she might have prevented it by closing the trapdoor cover and paying better attention to

where she was walking, Rogers-Fjelstad suggested that the possibility of such distraction or other

human error was merely a component of the underlying risk of working in the guard tower. While

such inadvertence was perhaps a “causal factor” preceding Garcia’s fall, it did not, in the expert’s

view, diminish or change the underlying “root cause” of the accident, the dangers presented by an

inadequately guarded floor opening.

                The Administrative Law Judge (ALJ) issued a proposal for decision (PFD)

recommending that the ERS Board grant Garcia’s application for enhanced occupational-disability

retirement benefits. In support, the ALJ made fact findings regarding the basic setting15 and


       15
            The ALJ found:

       14.      In 2004, Ms. Garcia trained to become a corrections officer with TDCJ. Late
                that year she began working at TDCJ’s Darrington Unit in Rosharon,
                Brazoria County.

       15.      Ms. Garcia’s job was to watch over inmates. As part of her duties, she was
                assigned to conduct surveillance from a guard tower. She was to monitor
                outside activity and prevent escapes.

       16.      The guard tower in which Ms. Garcia worked is a tall building with a vertical
                ladder leading to the elevated area for the guards. The guards’ area is
                approximately eight feet long by eight feet wide.



                                                  9
circumstances of Garcia’s fall16 that are generally consistent with our description above, plus


       17.      The ladder, which is affixed to the interior of one of the tower’s walls, is
                approximately 16 feet tall. At its upper end, the ladder leads to an opening
                in the floor of the guards’ area.

       18.      The hole in the floor is two feet long by two feet wide.

       19.      The opening is in the corner of the tower, so at two sides of the opening are
                the tower’s walls. There are windows in those walls, above the hole, with the
                bottoms of the windows at about waist level. On a third side of the opening
                is a metal railing that is bolted into the floor. A chain is available for
                fastening, from the railing to the wall opposite, across the fourth side of the
                opening.

       20.      The hole has a trapdoor that opens upwards and can be hooked onto the
                railing to stand open.

       21.      The floor at the base of the tower is concrete.

       22.      There is no air conditioning in the tower.
       16
            The ALJ further found:

       23.      On July 6, 2005, Ms. Garcia went to the guard tower to relieve another guard,
                Officer Hampton.

       24.      Ms. Garcia climbed up into the tower, and Officer Hampton then began trying
                to climb down the ladder.

       25.      Officer Hampton was having difficulty climbing down because she was
                struggling to carry a large bag full of her belongings.

       26.      Ms. Garcia stood at the opening, offering to help pass the bag down, but
                Officer Hampton kept trying to get down with the bag on her own.

       27.      As Officer Hampton continued to try to climb down, Ms. Garcia stepped to
                the balcony to signal to the gate officer to send up some ice.

       28.      Ms. Garcia came in from the balcony and stepped across the tower to get
                some water.

       29.      Then, she went to open one of the windows to let in a breeze.

                                                  10
the following findings of immediate relevance to this appeal:


        31.     [Upon reentering the guard area from the balcony,] Ms. Garcia forgot that the
                trapdoor was still open, and she walked across the opening and fell to the
                floor at the base of the tower.

        32.     A ladder cage or gate with a spring-loaded closing mechanism would have
                provided protection against an accidental fall through the hole.

        33.     The Darrington Unit’s Standard Operating Procedures (SOP) for tower
                trapdoors require[] the newly on-duty officer to keep the trapdoor open until
                the leaving officer has safely descended the ladder to the bottom, as Ms.
                Garcia did.

        34.     Nothing in the SOP prohibits an officer’s stepping away while the leaving
                officer is descending the ladder, and nothing in it requires (or even mentions)
                the use of the chain [to cordon off the trapdoor area].

        35.     Ms. Garcia did not violated the SOP.

        ...

        43.     Ms. Garcia’s injury resulted solely from the risk of working in a small,
                elevated, hot space reachable only by a ladder, with a poorly guarded trapdoor
                that must remain open while a leaving officer is descending.


Based on her findings, the ALJ concluded that Garcia’s fall and subsequent disability met the

statutory definition of “occupational disability” and that, similarly, she had been disabled “as a direct

result of a risk or hazard to which law enforcement or custodial officers are exposed because of the

nature of law enforcement or custodial duties,” thus qualifying for enhanced benefits.

                The Legislature has explicitly authorized the ERS Board, “in its sole discretion,” to

“make a final decision on a contested case” and to “modify, refuse to accept, or delete any proposed

finding of fact or conclusion of law contained in a proposal for decision,” provided it “state[s] in


        30.     By now, Officer Hampton had gone.

                                                   11
writing the specific reason for its determination.”17 The Board may also delegate this authority to

the ERS Executive Director.18 Acting under color of these statutory authorizations, the Executive

Director, on the Board’s behalf, rejected the ALJ’s proposed decision and underlying findings

and conclusions, adopted alternative findings and conclusions proposed by ERS’s general counsel,

and issued an order denying Garcia’s claim in full. The net effect of the alternative findings and

conclusions adopted by the Executive Director was to leave undisturbed the majority of the

ALJ’s proposed findings and conclusions while changing certain others that had been pivotal to the

ALJ’s reasoning and ultimate decision. Substantive modifications to the ALJ’s fact findings were

as follows (additions are indicated by underline; deletions by strikeout):


       35.      Ms. Garcia did not violate the SOP by failing to close the picket hatch cover
                after the other officer descended.

       36.      [Garcia] would have had additional protection against the fall that caused her
                injury had she put up the chain.

       37.      [Garcia] could have prevented the fall that caused her injury by exercising
                ordinary care to maintain a proper lookout and thereby avoid stepping into the
                picket hatch opening.

       ...

       45.[19] Ms. Garcia’s injury did not resulted solely from the risk of working in a
               small, elevated, hot space reachable only by a ladder, with a poorly guarded
               trapdoor that must remain open while a leaving officer is descending. Her
               injury was caused substantially, if not solely, by her own negligence in failing
               to timely close the picket hatch cover, failing to put up the chain, and/or



       17
            Tex. Gov’t Code § 815.511(d).
       18
            See id.
       19
            Renumbered from 43.

                                                 12
               failing to keep a proper lookout to avoid stepping into the picket hatch
               opening.

       46.     The open picket hatch cover did not present an extremely dangerous risk of
               severe physical or mental trauma because the risks could be easily avoided
               by [Garcia]’s exercise of ordinary care.


Corresponding modifications to the ALJ’s following proposed conclusions of law were:


       5.      Ms. Garcia suffered a sudden and unexpected injury that resulted solely from
               a specific act or occurrence determinable by a definite time and place and, but
               not solely from an extremely dangerous risk of severe physical trauma that
               is not common to the public at large and that is peculiar to and inherent in a
               dangerous duty that arose from the nature and in the course of her state
               employment.

       7.      Ms. Garcia is not disabled as a direct result of a risk or hazard to which law
               enforcement or custodial officers are exposed because of the nature of law
               enforcement or custodial duties. Tex. Gov’t Code § 814.207.

       8.      Ms. Garcia’s appeal should be granted denied, and the decision of the
               Executive Director Director of Customer Benefits denying Ms. Garcia’s
               occupational disability retirement benefits should be reversed upheld by the
               designee of the Board of Trustees of ERS.


Each change was accompanied by a detailed explanation of the Executive Director’s reasoning.

               After exhausting her remaining administrative remedies, Garcia filed suit for

judicial review of ERS’s final order in Travis County district court.20 The district court reversed the

final order and remanded the matter to ERS for further proceedings. Its judgment elaborated that

the Executive Director had, in the court’s view, “erred,” acted arbitrarily and capriciously or with

an abuse of discretion, “or both,” in four respects:



       20
          See Tex. Gov’t Code § 815.511(f) (providing to “person aggrieved by a final decision of
[ERS] in a contested case” right to judicial review under APA in Travis County district court).

                                                  13
•       Rejecting the ALJ’s “correct[] interpret[ation]” of the statutory definition of “occupational
        disability,” which had recognized that “the distraction that caused Ms. Garcia to forget that
        the trapdoor was open was not an independent cause of the accident, but rather was part of
        the risk of working around the trapdoor in the conditions in that tower,” and instead holding
        that Garcia did not satisfy the “‘solely from an extremely dangerous risk’ prong” of the
        definition.

•       Determining that the risk Garcia faced while working around the trapdoor in the conditions
        in the guard tower did not constitute an “extremely dangerous risk” under the statutory
        definition of “occupational disability.”

•       Determining that Garcia did not qualify for enhanced occupational disability retirement
        benefits.

•       Modifying the ALJ’s proposed findings of fact and conclusions of law.


This appeal ensued.


                                              ANALYSIS

                ERS challenges the district court’s judgment through five issues on appeal. In its

first issue, ERS urges that in the face of evidence of Garcia’s “contributory negligence in failing to

close the trap door, keep a proper lookout, or engage the chain,” the Executive Director did not

reversibly err (or act arbitrarily or capriciously, abuse her discretion, etc.) in denying benefits on the

basis that Garcia’s injuries did not “result . . . solely from” any risk of working in the guard tower,

as the statutory definition of “occupational disability” required. In its second issue, ERS disputes

whether the conditions in the guard tower constituted an “extremely dangerous risk” within the

meaning of the definition. In its third issue, ERS contends that even if Garcia somehow qualified

for occupational disability retirement benefits, substantial evidence supports the Executive Director’s

determination that Garcia did not meet the additional requirements for enhanced benefits.




                                                   14
                ERS’s remaining issues challenge the district court’s holding that the Executive

Director had erred or exceeded her lawful discretion in altering the ALJ’s proposed findings

and conclusions. In its fifth issue, ERS argues that Garcia waived any such complaint by failing to

assert it in her motion for rehearing before the agency. In its fourth issue, ERS asserts that even if

the complaint was preserved, the Executive Director did not err in altering the ALJ’s findings and

conclusions as she did.


Standard of review

                We review ERS’s final order under the “substantial evidence” standard that

is codified in the APA.21 This standard requires that we reverse or remand a case for further

proceedings “if substantial rights of the appellant have been prejudiced because the administrative

findings, inferences, conclusions, or decisions” are:


       (A)      in violation of a constitutional or statutory provision;

       (B)      in excess of the agency’s statutory authority;

       (C)      made through unlawful procedure;

       (D)      affected by other error of law;

       (E)      not reasonably supported by substantial evidence considering the reliable and
                probative evidence in the record as a whole; or

       (F)      arbitrary or capricious or characterized by abuse of discretion or clearly
                unwarranted exercise of discretion.22



       21
           See id. §§ 815.511(f) (“On judicial appeal [of an ERS final decision] the standard of
review is by substantial evidence.”), 2001.174 (codifying “substantial evidence” standard).
       22
            Id. § 2001.174(2).

                                                  15
Essentially, this is a rational-basis test to determine, as a matter of law, whether an agency’s

order finds reasonable support in the record.23 “The test is not whether the agency made the correct

conclusion in our view, but whether some reasonable basis exists in the record for the agency’s

action.”24 We apply this analysis without deference to the district court’s judgment.25 We presume

that the agency’s findings, inferences, conclusions, and decisions are supported by substantial

evidence, and the burden is on the contestant to demonstrate otherwise.26 Ultimately, we are

concerned not with the correctness of the Commission’s decision, but its reasonableness.27

                Substantial-evidence analysis entails two component inquiries: (1) whether the

agency made findings of underlying facts that logically support the ultimate facts and legal

conclusions establishing the legal authority for the agency’s decision or action and, in turn,

(2) whether the findings of underlying fact are reasonably supported by evidence.28 The second

inquiry, which has been termed the “crux” of substantial-evidence review,29 is highly deferential

to the agency’s determination: “substantial evidence” in this sense “does not mean a large or


       23
         See Texas Health Facilities Comm’n v. Charter Med.-Dallas, Inc., 665 S.W.2d 446,
452–53 (Tex. 1984).
       24
          Slay v. Texas Comm’n on Envtl. Quality, 351 S.W.3d 532, 549 (Tex. App.—Austin 2011,
pet. denied).
       25
            See Texas Dep’t of Pub. Safety v. Alford, 209 S.W.3d 101, 103 (Tex. 2006) (per curiam).
       26
            See Slay, 351 S.W.3d at 549.
       27
           See Sanchez v. Texas State Bd. of Med. Exam’rs, 229 S.W.3d 498, 510
(Tex. App.—Austin 2007, no pet.).
       28
          See Vista Med. Ctr. Hosp. v. Texas Mut. Ins. Co, 416 S.W.3d 11, 26–27
(Tex. App.—Austin 2013, no pet.) (citing Charter Med.-Dallas, 665 S.W.2d at 453).
       29
         See Granek v. Texas State Bd. of Med. Exam’rs, 172 S.W.3d 761, 778 (Tex. App.—Austin
2005, no pet.) (citing John E. Powers, Agency Adjudications 163 (1990)).

                                                 16
considerable amount of evidence”—in fact, the evidence may even preponderate against the agency’s

finding—but requires only “such relevant evidence as a reasonable mind might accept as adequate

to support a [finding] of fact.”30 Likewise, we “may not substitute [our] judgment for the judgment

of the state agency on the weight of the evidence on questions committed to agency discretion.”31

In contrast, the first inquiry, concerning the extent to which the underlying facts found by the

agency logically support its ultimate decision or action, may entail questions of law that we review

de novo.32

                 Although both parties emphasize findings and supportive “substantial evidence” they

perceive favorable to their respective positions, the legal materiality of any such facts ultimately

depends upon construction of the statutes governing Garcia’s entitlement to benefits, beginning with

the statutory definition of “occupational disability.” Statutory construction presents a question of

law that we review de novo.33 Our primary objective in statutory construction is to ascertain and give

effect to the Legislature’s intent.34 We determine that intent from the plain meaning of the words




       30
             Slay, 351 S.W.3d at 549.
       31
             Tex. Gov’t Code § 2001.174(1).
       32
          See Railroad Comm’n v. Texas Citizens for a Safe Future & Clean Water, 336 S.W.3d
619, 624 (Tex. 2011); Montgomery Indep. Sch. Dist. v. Davis, 34 S.W.3d 559, 565 (Tex. 2000)
(citing Charter Med.-Dallas, 665 S.W.2d at 453); City of El Paso v. Public Util. Comm’n,
344 S.W.3d 609, 619 (Tex. App.—Austin 2011, no pet.); Buddy Gregg Motor Homes, Inc. v. Motor
Vehicle Bd., 156 S.W.3d 91, 99 (Tex. App.—Austin 2004, pet. denied).
       33
             State v. Shumake, 199 S.W.3d 279, 284 (Tex. 2006).
       34
          See id.; TGS-NOPEC Geophysical Co. v. Combs, 340 S.W.3d 432, 439 (Tex. 2011) (citing
Tex. Gov’t Code § 312.005; Texas Dep’t of Protective & Regulatory Servs. v. Mega Child Care,
Inc., 145 S.W.3d 170, 176 (Tex. 2004)).

                                                 17
chosen when it is possible to do so, using any definitions provided.35 We consider the statutes as a

whole rather than their isolated provisions.36 We presume that the enactment’s language was chosen

with care, with each word included (or omitted) purposefully.37 Undefined terms are typically given

their ordinary meaning, but if a different or more precise definition is apparent from a term’s

use in context, we apply that meaning.38 If the text of the enactment is unambiguous, we adopt the

interpretation supported by its plain language unless such an interpretation would lead to absurd

results that the drafters could not possibly have intended.39 However, if the text is ambiguous—i.e.,

there is more than one reasonable interpretation of it—we may be required to defer to an

authoritative construction by the agency charged with the provision’s enforcement that is reasonable

and not inconsistent with the text of the provision.40 Such deference is particularly appropriate where

the statutes and rules at issue concern a matter within the core expertise of the agency.41



       35
            See TGS-NOPEC, 340 S.W.3d at 439 (citing Tex. Gov’t Code § 312.011(b)).
       36
          See id. (citing Texas Dep’t of Transp. v. City of Sunset Valley, 146 S.W.3d 637, 642
(Tex. 2004)).
       37
            See id. (citing In re M.N., 262 S.W.3d 799, 802 (Tex. 2008)).
       38
            See id. (citing In re Hall, 286 S.W.3d 925, 928–29 (Tex. 2009)).
       39
          See id. (citing Mega Child Care, 145 S.W.3d at 177); see also Texas Coast Utils. Coal.
v. Railroad Comm’n, 423 S.W.3d 355, 356 n.16 (Tex. 2014) (noting that principles of deference to
agency construction not implicated where statute at issue is unambiguous).
       40
           See Texas Citizens, 336 S.W.3d at 628–30; see also TGS–NOPEC, 340 S.W.3d at 439 (“If
there is vagueness, ambiguity, or room for policy determinations in a statute or regulation, . . . we
normally defer to the agency’s interpretation unless it is plainly erroneous or inconsistent with the
language of the statute, regulation, or rule.”).
       41
          See Zimmer US, Inc. v. Combs, 368 S.W.3d 579, 586 (Tex. App.—Austin 2012, no pet.)
(deferring to Comptroller’s reasonable interpretation of ambiguous tax statute); cf. Rylander
v. Fisher Controls Int’l, Inc., 45 S.W.3d 291, 302 (Tex. App.—Austin 2001, no pet.) (declining to

                                                  18
“Results . . . solely from an extremely dangerous risk”

                We will begin with ERS’s arguments rooted in construction of the definitional phrase

“disability from a sudden and unexpected injury or disease that results . . . solely from an extremely

dangerous risk of severe physical or mental trauma or disease that is not common to the public at

large and that is peculiar to and inherent in a dangerous duty that arises from the nature and in the

course of a person’s state employment,” the focus of its first issue. Assuming for purposes of

argument that the working conditions in the guard tower presented “an extremely dangerous risk of

severe physical or mental trauma . . . ” (the focus of its second issue), ERS disputes that Garcia’s fall

and resultant disability can be said to “result[] . . . solely” from that risk. This is so, ERS reasons,

because the Executive Director found, with support by substantial evidence, that Garcia’s own

“contributory negligence” or lack of care in failing to close the trapdoor cover, engage the chain, or

keep a proper lookout were a contributing cause of her fall, if not the sole cause.

                ERS’s argument is premised in part on the view that “result[] . . . solely from an

extremely dangerous risk,” as used in the “occupational disability” definition, was intended to

impose a strict “sole-cause” standard that precludes recovery if any causal factor other than the

underlying workplace risk contributes to an employee’s disability-causing injury or disease. It insists

this intent is evident in the Legislature’s use of the word “solely” in the definition, especially when

viewed in the context of the jurisprudence that preceded the 2003 amendments adding that language.




defer to agency interpretation on issue outside agency expertise) (citing 2B Norman J. Singer,
Statutes & Statutory Construction § 49:04, at 23–24 (6th ed. 2000)).

                                                   19
ERS emphasizes this Court’s 2002 decision in Flores v. Employees Retirement System,42 in which

we construed a prior version of the “occupational disability” definition that provided:


        “Occupational death or disability” means death or disability from an injury or disease
        that directly results from a specific act or occurrence determinable by a definite time
        and place, and directly results from a risk or a hazard peculiar to and inherent in a
        duty that arises from and in the course of state employment.43


A central issue in Flores concerned the construction and application of the first “prong” of the

definition (then requiring that the disability be from “injury or disease that directly results from a

specific act or occurrence”) to an occupational-disability-retirement claimant whose disability was

traceable in part to a preexisting condition.44 Citing the preexisting condition, ERS had denied the

claim in the view that the claimant’s disability could not be said to “directly result” from the on-the-

job car accident that had given rise to her claim. This Court rejected ERS’s construction of the

definition, holding that the phrase “directly results,” without more, did not preclude recovery merely

because other causal factors might also be present.45 It reasoned:


      “Directly” is not synonymous with “solely,” and nothing in the plain meaning of the
      statute mandates disqualifying every claimant who had a preexisting condition that is
      aggravated by the injury. Had the legislature intended a sole cause standard, it could




        42
             74 S.W.3d 532 (Tex. App.—Austin 2002, pet. denied).
       43
        Act of May 27, 2001, 77th Leg., R.S., ch. 1231, § 1, sec. 811.001(12), 2001 Tex. Gen.
Laws 2827 (emphases added) (current version at Tex. Gov’t Code § 811.001(12)).
        44
             See Flores, 74 S.W.3d at 546.
        45
             See id. at 547–48.

                                                  20
      have given some indication, for example, by using “solely results” or “directly results
      independently of all other causes.” It did not do so.46


               It was during the Legislature’s next regular session that it amended the “occupational

disability” definition to substitute “solely” in both places where “directly” had appeared.47 ERS

insists this change reflected unequivocal intent to impose a sole-cause standard in both “prongs” of

the “occupational disability” definition, as if to respond to the Flores Court’s invitation. We must

assume the Legislature was aware of Flores and acted with reference to it, as with other background

law.48 However, the focus of our inquiry remains the statutory text the Legislature has actually

chosen, and while Flores might perhaps inform the context of that usage, the decision cannot change

the objective meaning of those words altogether.49

               In response to ERS’s arguments, Garcia points out that the “occupational disability”

definition, even as amended in 2003, does not refer to “cause” or “causation,” but uses the phrase


       46
           Id.; see also id. at 547 (observing that “results directly and independently of all other
causes” is commonly used in private insurance policies and “has been interpreted to create a sole-
cause standard”).
       47
           See Act of June 1, 2003, 78th Leg., R.S., ch. 1111, § 10, sec. 811.001(12), 2003 Tex. Gen.
Laws 3178, 3180 (codified at Tex. Gov’t Code § 811.001(12)) (among other changes, replacing word
“directly” with “solely” to require that injury “results solely from a specific act or occurrence” and
“solely from an extremely dangerous risk”) (emphases added).
       48
           See Shook v. Walden, 304 S.W.3d 910, 917 (Tex. App.—Austin 2010, no pet.) (“[W]e
assume that when enacting a statute, the legislature was aware of the background law and acted with
reference to it.” (citing Acker v. Texas Water Comm’n, 790 S.W.2d 299, 301 (Tex. 1990)).
       49
           See, e.g., Molinet v. Kimbrell, 356 S.W.3d 407, 419–20 (Tex. 2011) (noting supreme
court’s “reluctan[ce] to look to legislative history to divine the Legislature’s meaning” and doing
so only because the statute in question created an ambiguity); Alex Sheshunoff Mgmt. Servs., L.P.
v. Johnson, 209 S.W.3d 644, 651–52 (Tex. 2006) (noting that while“we may cautiously consult
legislative history to help divine legislative intent” where “enacted language is nebulous,” the
“enacted language is what constitutes the law”).

                                                 21
“results . . . solely from an extremely dangerous risk . . . .” By using “results” rather than “causes,”

the Legislature, she infers, conspicuously avoided incorporating into the statute the familiar concepts

of sole cause, proximate cause, producing cause, intervening or superseding cause, etc., and corollary

notions of fault or responsibility on which ERS relies. The Flores Court made a similar observation

about the pre-2003 definition, noting that “the statute does not define the standard in recognizable

terms such as ‘sole cause,’ ‘proximate cause,’ or ‘producing cause.’”50 Yet Flores also characterized

the statutory phrase “directly results” as denoting some sort of “causal nexus.”51 Similarly, ERS

questions whether there is any substantive difference between an injury that “results solely” from a

risk and one that is “caused solely” (or “solely caused”) by it, observing that Black’s Law Dictionary

defines “cause” in terms of something that brings about a “result.”52

                   But the primary thrust of Garcia’s argument is not semantics—rather, she insists

that ERS assumes a false dichotomy between an injury that “results . . . solely from an extremely

dangerous risk” and one in which an injured employee’s negligence, inadvertence, or other “human

frailty” can be said to play some causal role. In Garcia’s view, the “extremely dangerous risk”

contemplated by the “occupational disability” definition necessarily encompasses some range of

“human frailty,” workplace accidents, or mistakes by an injured employee such that an injury can

be to some extent attributable to (or be “caused by”) a claimant’s own errors or deficiencies, yet

nonetheless still “result[] . . . solely” from the underlying risks of the workplace so as to permit



       50
             Flores, 74 S.W.3d at 546.
        51
             Id.
       52
          See Black’s Law Dictionary 265 (10th ed. 2014) (defining “cause” as “[s]omething that
produces an effect or result.”).

                                                  22
recovery. To illustrate the relationship between this sort of contributory employee causation and the

underlying risks of the workplace, Garcia offers the example of a prison guard who, upon climbing

into the elevated guard area, must immediately respond to a suddenly erupting prisoner riot and,

amid the tumult, overlooks the still-opened trapdoor and falls in. A similar illustrative hypothetical,

embraced by the district court, posited a hypothetical law enforcement officer who failed to zip up

his bulletproof vest in perfect accordance with manufacturer’s instructions, leaving a small gap, then

was wounded there in a gun battle with criminals. If the statute truly imposed a sole-cause standard

along the lines ERS envisions, Garcia urges, neither law enforcement officer could qualify for

occupational-disability retirement benefits, despite the obvious and pervasive nexus of their injuries

to the serious risks inherent in their work, because their oversight or inadvertence could invariably

be said to comprise at least 1% of the cause of their injuries. The net result, Garcia further asserts,

would be to bar recovery of virtually all occupational-disability retirement benefits claims, an

“absurd result” the Legislature could not possibly have intended.53

                In response to such arguments, ERS ultimately acknowledges that the “occupational

disability” definition would not categorically bar recovery in all cases where a claimant’s

own “human error” contributed to his or her injuries, but would permit recovery where the error

could be said to “result from the unique risk of the job.” But ERS insists that Garcia’s errors and

inadvertence were not the sort that resulted from any “unique risk” of her job, but were the

equivalent of the hypothetical law enforcement officer having “failed to secure the vest out of vanity,

or because he was looking at FaceBook or some other obvious act of negligence,” and he “would


       53
           See, e.g., City of Rockwall v. Hughes, 246 S.W.3d 621, 629 (Tex. 2008) (“[O]ur standard
is to construe statutes to effectuate the intent of the Legislature, with the language of the statute as
it was enacted to be our guide unless the context or an absurd result requires another construction.”).

                                                  23
not have otherwise been injured but for that act of negligence.” In urging that such negligence was

indistinguishable from the underlying risk of her work environment, Garcia, according to ERS,

would logically imply that she should recover even if she had jumped into the open trapdoor

intentionally because, in her view, it is only the underlying risk of the trapdoor and environs

that matters.

                As the parties’ competing contentions demonstrate, the pivotal issue regarding

application of the “result[] . . . solely from an extremely dangerous risk” requirement is not whether

Garcia can be said to have acted with “contributory negligence” or have been a “cause” of her own

injuries, per se, but whether her acts or omissions are a component of the underlying “extremely

dangerous risk of severe physical or mental trauma or disease that is not common to the public at

large and that is peculiar to and inherent in a dangerous duty that arises from the nature and in the

course of a person’s state employment,” as we have assumed her working conditions in the guard

tower to be. Both parties insist that this statutory language unambiguously supports their position,

with Garcia urging that her admitted “human frailty” was plainly part and parcel of the underlying

“extremely dangerous risk” of working in a hot, un-airconditioned confined space with an opening

in the floor, while ERS maintains that any perils associated with Garcia’s working conditions are

quite obviously distinct from those she created herself and which led to her fall.

                In the alternative, ERS urges that we should defer to its construction of the statute

under the principles enunciated by the Texas Supreme Court in the Texas Citizens case.54 Under

those principles, as previously noted, courts may be required to defer to an authoritative construction

of a statute by the agency charged with the provision’s enforcement that is reasonable and


       54
            336 S.W.3d at 625–28.

                                                  24
not inconsistent with the provision’s text.55 However, there are some important caveats to the

application of these principles. For one, such deference is considered appropriate where the statute

at issue concerns a matter within the specialized or technical expertise of the agency,56 and less

so where it does not.57 Another is that courts do not defer to an agency’s construction of an

unambiguous statute.58 The Texas Supreme Court has restated the latter limitation affirmatively as,

“If there is vagueness, ambiguity, or room for policy determination in a statute or regulation, . . .we

normally defer to the agency’s interpretation unless it is plainly erroneous or inconsistent with the

language of the statute, regulation, or rule.”59

                 We conclude that the statutory definition of “occupational disability,” as amended

in 2003, is one where the Legislature has left some “vagueness, ambiguity, or room for policy

interpretation” with respect to whether a claimant’s own injury-producing conduct in a given

case is or is not a component of an underlying “extremely dangerous” workplace risk from which

a disability must “solely” result. We further observe that construction and application of this statute

lies within the expertise of ERS, the agency charged with administering state employee insurance

and retirement benefits and having been delegated exclusive jurisdiction to initially decide claims for




        55
             See id. at 628–30.
        56
             See Zimmer, 368 S.W.3d at 586.
        57
             Fisher Controls, 45 S.W.3d at 302.
       58
          Texas Citizens, 336 S.W.3d at 625; see also Texas Coast Utils. Coal., 423 S.W.3d at 356
n.16 (noting that principles of deference to agency construction not implicated where statute at issue
is unambiguous).
        59
             TGS-NOPEC, 340 S.W.3d at 438.

                                                   25
benefits.60 At bottom, the issue presented by Garcia’s benefits claim is one of risk-allocation within

the insurance and retirement systems ERS administers and, more generally, the Executive Branch’s

management of the public fisc under the authority delegated to it by the Legislature—whether the

particular circumstances of her fall and ensuing disability are, or are not, the sort of workplace risk

against which the Legislature undertook to indemnify state employees by providing occupational-

disability retirement benefits. These are the sorts of questions on which generalist courts should

defer to ERS’s reasonable construction of the statute.61

                Garcia urges, however, that the relevant issue is “statutory construction,” and that

courts, not agencies, are the proper arbiters in that regard. She admittedly finds support for that

notion in Flores, in which this Court asserted that because statutory construction “does not involve

a matter lying within the [ERS] Board’s expertise,” “courts are as competent as the Board in

assessing legislative intent and this reduces considerably the degree of deference owed the Board’s

interpretation of [the ‘occupational disability’ definition.”62 However, in light of intervening

Texas Supreme Court decisions like Texas Citizens, the Flores court’s view would necessarily apply




       60
           See, e.g., Blue Cross Blue Shield v. Duenez, 201 S.W.3d 674, 676–77 (Tex. 2006)
(per curiam).
       61
           See Texas Citizens, 336 S.W.3d at 624–33 (holding that agency’s construction of statute
it was charged with enforcing was entitled to deference because it was reasonable, in line with the
statute’s meaning, and related to its expertise); AEP Tex. Commercial & Indus. Retail Ltd. P’ship
v. Public Util. Comm’n, 436 S.W.3d 890, 906–07 (Tex. App.—Austin 2014, no pet.); see Zimmer,
368 S.W.3d at 586.
       62
            Flores, 74 S.W.3d at 546.

                                                  26
only to the extent the statute at issue is unambiguously contrary to the agency’s view of it.63 That

is not the case here.

                 We likewise cannot conclude that ERS construed and applied the “occupational

disability” definition unreasonably or inconsistently with its text in determining that Garcia’s fall and

ensuing disability are not the sort of workplace risk against which the Legislature undertook

to indemnify state employees by providing occupational-disability retirement benefits. While there

were certainly perils associated with the presence of a trapdoor within the confined space in which

Garcia worked, the Executive Director found that she could have prevented her accident by simple

measures like closing the trapdoor cover before exiting the guard area for the balcony and keeping

a proper lookout after she returned. Garcia does not seriously dispute that substantial evidence

supports these findings of underlying fact.

                 Garcia asserts, however, that the Executive Director acted improperly in adopting her

version of the findings and conclusions in lieu of those proposed by the ALJ. The district court

evidently agreed, and ERS has challenged this holding in its fourth and fifth issues, the former

attacking the ruling on the merits while the latter contends Garcia waived the issue. We need go no

farther than to observe, again, that the Legislature has granted the ERS Board (who may delegate the

authority to the Executive Director64) the “sole discretion [to] make a final decision on a contested

case” and “may in its sole discretion modify, refuse to accept, or delete any proposed finding

of fact or conclusion of law contained in [an ALJ’s PFD]” or “make alternative findings of fact




        63
             See AEP Tex., 436 S.W.3d at 906–07.
        64
             See Tex. Gov’t Code § 815.511(d).

                                                   27
and conclusions of law.”65 If it chooses to do so, the Board or Executive Director must provide

“the specific reason for its determination.”66 Here, the Executive Director gave detailed explanations

and reasons for the changes she adopted. For example, regarding Finding of Fact 45 (previously

numbered 43), the Executive Director explained:


        Proposed Alternative No. 45 [is] modified . . . because the failure to include a finding
        that Appellant’s own negligence substantially, if not solely, caused her injury is
        clearly erroneous, against the weight of the evidence, based on an insufficient
        review of the evidence, and incomplete. The evidence shows that it was Appellant’s
        negligence, and not an extremely dangerous condition, that caused the accident. The
        evidence shows that Appellant’s negligence in not closing the picket hatch cover, not
        putting up the chain, and/or not exercising ordinary care by keeping a proper lookout
        to avoid stepping into the picket hatch opening were causes of the accident. The ALJ
        did not include such a finding in the ALJ’s Proposed FOF even though the weight of
        the evidence reflects that Appellant’s injury resulted substantially, if not solely, from
        her own negligence. Not including such a finding also reflects an insufficient review
        of the evidence and makes the ALJ’s Proposed FOF No. 43 confusing, incomplete
        and misleading. . . . .


In the context of her permissible construction of the “occupational disability” definition, the

Executive Director’s modified findings comported with the statutory requirements. We sustain

ERS’s fourth issue and need not reach its fifth.

                   In light of the Executive Director’s valid findings and the agency’s reasonable

construction of the underlying statutory requirement that Garcia’s disability “result[] . . . solely” from

the underlying risk of her workplace, we sustain ERS’s first issue. Because that holding is fatal to

Garcia’s entitlement to occupational-disability retirement benefits, we need not reach either ERS’s

second issue (concerning whether Garcia’s working conditions in the guard tower presented an


        65
             Id.
        66
             Id.

                                                   28
“exceptionally dangerous risk”), nor its third issue (challenging Garcia’s further entitlement to

enhanced benefits).67


                                         CONCLUSION

                 We reverse the district court’s judgment and render judgment affirming ERS’s

final order.68




                                             __________________________________________
                                             Bob Pemberton, Justice

Before Justices Puryear, Pemberton, and Rose

Reversed and Rendered

Filed: December 18, 2014




        67
             See Tex. R. App. P. 47.1.
        68
             See Tex. Gov’t Code § 2001.174(1).

                                                  29
