Francisca Okonkwo, Administrative Law Judge, Texas Department of Insurance, Division of Workers' Compensation, in Her Official Capacity and Fort Bend County v. Joshua David Heiliger, Individually, and on Behalf of the Estate of Lauren Brittane Smith, and on Behalf of Death Benefits Beneficiaries Joshua David Heiliger and Emma Destiny Heiliger

Opinion

ACCEPTED 15-25-00061-CV FIFTEENTH COURT OF APPEALS AUSTIN, TEXAS 6/12/2025 3:59 PM NO. 15-25-00061-CV CHRISTOPHER A. PRINE CLERK

IN THE COURT OF APPEALS FILED IN 15th COURT OF APPEALS FOR THE FIFTEENTH JUDICIAL DISTRICT OF TEXAS AUSTIN, TEXAS AT AUSTIN, TEXAS 6/12/2025 3:59:59 PM CHRISTOPHER A. PRINE Clerk FRANCESCA OKONKWO, ADMINISTRATIVE LAW JUDGE, TEXAS DEPARTMENT OF INSURANCE, DIVISION OF WORKERS’ COMPENSATION, IN HER OFFICIAL CAPACITY and FORT BEND COUNTY, Appellants, v. JOSHUA DAVID HEILIGER, INDIVIDUALLY, AND ON BEHALF OF THE ESTATE OF LAUREN BRITTANE SMITH, DECEASED, AND ON BEHALF OF DEATH BENEFITS BENEFICIARIES JOSHUA DAVID HEILIGER AND EMMA DESTINY HEILIGER, Appellees

ON APPEAL FROM TRIAL COURT CAUSE NO. 2024-78536 11TH JUDICIAL DISTRICT COURT OF HARRIS COUNTY, TEXAS THE HONORABLE KRISTEN B. HAWKINS, PRESIDING JUDGE

APPELLANT FORT BEND COUNTY’S BRIEF

Dean G. Pappas Lisa M. Teachey Texas Bar No. 15454375 Texas Bar No. 24056416 dpappas@dgplawfirm.com lteachey@dgplawfirm.com Mary M. Markantonis Marilyn G. Allen Texas Bar No. 12986800 Texas Bar No. 24025225 mmarkantonis@dgplawfirm.com mallen@dgplawfirm.com Dean G. Pappas Law Firm, PLLC 8588 Katy Freeway, Suite 100 Houston, Texas 77024 Telephone: 713-914-6200 Telecopier: 713-914-6201 COUNSEL FOR RELATOR FORT BEND COUNTY

ORAL ARGUMENT REQUESTED IDENTITY OF PARTIES AND COUNSEL

Appellant: FORT BEND COUNTY

Trial and Appellate Counsel: Dean G. Pappas Texas Bar No. 15454375 dpappas@dgplawfirm.com Mary M. Markantonis Texas Bar No. 12986800 mmarkantonis@dgplawfirm.com Lisa M. Teachey Texas Bar No. 24056416 lteachey@dgplawfirm.com Marilyn J. Allen State Bar No. 24025225 mallen@dgplawfirm.com 8588 Katy Freeway, Suite 100 Houston, Texas 77024 Telephone: 713-914-6200 Telecopier: 713-914-6201

Appellant: Francesca Okonkwo, Administrative Law Judge, in her official capacity

Trial and Appellate Counsel: Ken Paxton Brent Webster Ralph Molina James Lloyd Ernest C. Garcia Sherlyn Harper Texas Bar No. 24093176 sherlyn.harper@oag.texas.gov Office of the Attorney General of Texas 808 Travis Street, Suite 1520 Houston, Texas 77002 Telephone: 713-225-8913 Telecopier: 512-320-0167 ii James Z. Brazell Texas Bar No. 02930100 James.Brazell@oag.texas.gov Assistant Attorney General, Administrative Law Division P.O. Box 12548, Capital Station Austin, Texas 78711-2548 Telephone: 512-475-3204

Appellee: Joshua Heiliger, Individually and on Behalf of the Estate of Lauren Brittane Smith, Deceased, and on Behalf of Death Benefits Beneficiaries Joshua David Heiliger and Emma Destiny Heiliger

Trial and Appellate Counsel: Russell L. Morris Texas Bar No. 24099150 serv.russell@mf-txlaw.com Pablo A. Franco Texas Bar No. 24121625 Andrew W. Bruce Texas Bar No. 24113627 McBryde Franco, PLLC 11000 Richmond Avenue, Suite 350 Houston, Texas 77042 Telephone: 713-223-7699 Telecopier: 512-691-9072

Real Party in Interest: Greater Houston Psychiatric Associates, PLLC

Trial and Appellate Counsel: LaVerne Chang Texas Bar No. 00783819 chang@cardwellchang.com 511 Lovett Blvd. Houston, Texas 77006 Telephone: 713-222-6025 Telecopier: 713-222-0938

iii TABLE OF CONTENTS

IDENTITY OF THE PARTIES & COUNSEL………………………………….…ii TABLE OF CONTENTS……………………………………………………..……iv INDEX OF AUTHORITIES…………………………………………………..……v STATEMENT REGARDING RECORD………………………………………….vii PARTY DESIGNATIONS BEFORE EACH TRIBUNAL………………….……viii STATEMENT OF INADEQUATE RELIEF………………………………………ix STATEMENT OF CASE…………………………………………………..……….x STATEMENT REGARDING ORAL ARGUMENT ……………………………xii STATEMENT OF ISSUE PRESENTED………………………………..……….xiii The District Court erred in denying Appellant’s Motion to Dismiss Appellee Heiliger’s Petition for Temporary Injunction for the following reasons: (1) No viable cause of action exists; (2) No probable right to the relief sought exists because mental health records are protected by a qualified privilege that can be pierced in judicial proceedings when a party makes the condition part of its claim defense; and (3) There is no probable, imminent, and irreparable injury in the interim because the Texas Workers’ Compensation Act specifically prohibits an ALJ from enforcing a discovery subpoena unless the ALJ or the party seeking the subpoena invokes Texas Government Code § 2001.201 to seek a District Court determination of good cause. STATEMENT OF FACTS……………………………………………….…………1 SUMMARY OF ARGUMENT………………………………………….………….7 ARGUMENT AND AUTHORITY……………………………………….………..9 PRAYER ………………………………………………………………….………37 CERTIFICATE OF SERVICE AND COMPLIANCE……………..…….……….38 APPENDIX ………………………………………………………….……………40

iv INDEX OF AUTHORITIES

Cases Abbott v. Anti-Defamation League, 610 S.W.3d 911 (Tex.2020)................................................... 9 American Motorists Ins. Co. v. Fodge, 63 S.W.3d 801 (Tex. 2001) ...................................... 11, 20 Aycock v. Clark, 94 Tex. 375, 60 S.W. 665 (1901) ...................................................................... 27 Beacon Nat. Ins. Co. v. Montemayor, 86 S.W.3d 260 (Tex. App.—Austin 2002, no pet.) .......... 23 Berrelez v. Mesquite Logistics USA, Inc., 562 S.W.3d 69 (Tex. App.—San Antonio 2018, no pet.) ........................................................................................................................................... 12 Butnaru v. Ford Motor Co., 84 S.W.3d 198 (Tex. 2002) ......................................................... 9, 10 Canadian Helicopters v. Wittig, 876 S.W.2d 304 (Tex. 1994) (orig. proceeding) ....................... 27 Chambers-Liberty Ctys. Navigation Dist. v. State, 575 S.W.3d 339 (Tex. 2019) ........................ 29 City of El Paso v. Heinrich, 284 S.W.3d 366 (Tex. 2009) ........................................................... 29 City of Houston v. Williams, 99 S.W.3d 709 (Tex. App.—Houston [14th Dist.] 2003, no pet.)... 20 Hall v. McRaven, 508 S.W.3d 232 (Tex. 2017) ............................................................................ 29 Henry v. Dillard Dept. Stores, Inc., 70 S.W.3d 808 (Tex. 2002) ................................................. 13 Holloway v. Fifth Court of Appeals, 767 S.W.2d 680 (Tex. 1989) (orig. proceeding) ................ 27 Honors Acad., Inc. v. Tex. Educ. Agency, 555 S.W.3d 54 (Tex. 2018) ........................................ 29 In re Crawford & Co., 458 S.W.3d 920 (Tex. 2015) .................................................................... 11 In re Entergy Corp., 142 S.W.3d 316 (Tex. 2004) ............................................................ ix, 11, 20 In re Metro. Transit Auth., 334 S.W.3d 806 (Tex. App.—Houston [1st Dist.] 2011, orig. proceeding) ............................................................................................................................... 13 In re Prentis, 702 S.W. 3d 762 (Tex. App.—Houston [1st Dist.] 2024, no pet) .................... 12, 13 In re Richardson Motorsports, Ltd., 690 S.W.3d 42 (Tex. 2024) (orig. proceeding)................... 32 In re State Bar of Tex., 113 S.W.3d 730 (Tex. 2003) (orig. proceeding) ..................................... 27 In re Tyler Asphalt & Gravel Co., Inc., 107 S.W.3d 832 (Tex. App.—Houston [14th Dist.] 2003, orig. proceeding) ....................................................................................................................... 13 Jordan v. Landry's Seafood Rest., Inc., 89 S.W.3d 737 (Tex. App.—Houston [1st Dist.] 2002, pet. denied)....................................................................................................................................... 10 Liberty Mut. Ins. Co. v. Adcock, 412 S.W. 3d 492 (Tex. 2013).................................................... 13 Moers v. Harris Co. Appraisal Dist., 469 S.W.3d 655 (Tex. App.—Houston [1st Dist.] 2015, pet. denied)....................................................................................................................................... 30 Morales v. Liberty Mut. Ins. Co., 241 S.W.3d 514 (Tex. 2007) ................................................... 13 Nuchia v. Woodruff, 956 S.W.2d 612 (Tex. App.—Houston [14th Dist.] 1997, pet. denied) ....... 23 Patel v. St. Luke's Sugar Land P'ship, L.L.P., 445 S.W.3d 413 (Tex. App.—Houston [1st Dist.] 2013, pet. denied) ........................................................................................................................ 9 Pub. Util. Comm'n of Tex. v. City Pub. Serv. Bd. of San Antonio, 53 S.W.3d 310 (Tex. 2001)... 13 R.K. v. Ramirez, 887 S.W.2d 836 (Tex. 1994) ....................................................................... 31, 32 Space Master Int'l, Inc. v. Porta-Kamp Mfg. Co., 794 S.W.2d 944 (Tex. Civ. App.—Houston [1st Dist.] 1990, no writ) .................................................................................................................. 20 Strayhorn v. Raytheon E-Systems, Inc., 101 S.W.3d 558 (Tex. App.—Austin 2003, pet. denied) ................................................................................................................................................... 21 Tanguy v. Laux, 259 S.W.3d 851 (Tex. App.—Houston [1st Dist.] 2008, no pet.) ...................... 10 Tel. Equip. Network, Inc. v. TA/Westchase Place, Ltd., 80 S.W.3d 601 (Tex. App.—Houston [1st Dist.] 2002, no pet.) .................................................................................................................. 10

v Tex. Dep't of Ins., Div. of Workers' Comp. v. Brumfield, No. 04-15-00473-CV, 2016 WL 2936380 (Tex. App.—San Antonio May 18, 2016, no pet.) .............................................. 29, 30 Texas Liquor Control Board v. Canyon Creek Land Corp., 456 S.W.2d 891 (Tex. 1970) .......... 20 Valenzuela v. Aquino, 853 S.W.2d 512 (Tex.1993)........................................................................ 9 Walker v. Packer, 827 S.W.2d 833 (Tex. 1992) (orig. proceeding) ....................................... 26, 27 Walling v. Metcalfe, 863 S.W.2d 56 (Tex. 1993) (per curiam) ...................................................... 9 Westheimer Indep. Sch. Dist. v. Brockette, 567 S.W.2d 780 (Tex.1978) ..................................... 23 Young Chevrolet, Inc. v. Texas Motor Vehicle Bd., 974 S.W.2d 906 (Tex.App.-Austin 1998, pet. denied)....................................................................................................................................... 23 Statutes Texas Civil Practice and Remedies Code § 51.014 ................................................................... ix, 7 Texas Government Code § 2001.201....................................... xiii, 8, 15, 16, 21, 22, 24, 33, 34, 35 Texas Health & Safety Code § 611........................................................... 16, 18, 25, 26, 28, 31, 33 Texas Labor Code § 401.011 ....................................................................................................... 13 Texas Labor Code § 402.001 ........................................................................................................ 11 Texas Labor Code § 402.00114 .................................................................................................... 11 Texas Labor Code § 402.083 ............................................................................................ 18, 28, 35 Texas Labor Code § 402.086 ............................................................................................ 18, 28, 36 Texas Labor Code § 406.034 ........................................................................................................ 24 Texas Labor Code § 408.001 .................................................................................................. 11, 20 Texas Labor Code § 410.003 ........................................................................................................ 14 Texas Labor Code § 410.157 ........................................................................................................ 14 Texas Labor Code § 410.158 ............................................................................................ 14, 21, 23 Texas Labor Code § 410.162 .......................................................................... 14, 15, 17, 21, 23, 28 Texas Labor Code § 410.163 ........................................................................................................ 12 Texas Labor Code § 410.165 ................................................................................ 14, 15, 17, 21, 28 Rules 28 Tex. Admin. Code § 141.4 ....................................................................................................... 15 28 Tex. Admin. Code § 142.1 ....................................................................................................... 15 28 Tex. Admin. Code § 142.12 ......................................................................................... 15, 21, 23 28 Tex. Admin. Code § 142.13 ......................................................................................... 15, 21, 23 28 Tex. Admin. Code § 142.2 ........................................................................................... 15, 21, 23 Texas Rule of Civil Procedure 682 ................................................................................................. 9 Texas Rule of Evidence 510 ................................................................................. 16, 18, 26, 31, 33

vi STATEMENT REGARDING APPELLATE RECORD

References to the Clerk’s Record are CR[page]. References to the confidential

supplemental Clerk’s Record hand delivered to the Court are SCR[Exhibit [letter]].

The items in the confidential supplemental Clerk’s Record are not included in the

Appendix to maintain the confidentiality of the documents.

References to the Reporter’s Record are [volume]RR[page]:[line].

References to documents in the Appendix are Appendix [letter].

vii PARTY DESIGNATIONS BEFORE EACH TRIBUNAL

PARTY DWC TRIAL COURT APPEAL MANDAMUS

Heiliger Claimant Petitioner Appellee Real Party in Interest

Self-Insured Real Party Fort Bend Appellant No. 2 Relator Gov’t Entity in Interest

ALJ Okonkwo ALJ Respondent Appellant No. 1 Real Party in Interest

GHPA Subpoena Real Party Real Party Respondent Dr. Marcellus Target in Interest in Interest

Judge Hawkins ---- Judge ---- Respondent

viii STATEMENT OF INADEQUATE RELIEF

This Appeal does not provide Appellant Fort Bend County an adequate

remedy because Texas Civil Practice & Remedies Code § 51.014 does not allow

Appellant to argue jurisdiction when appealing the granting of injunctive relief. But

in this case, the judicial appropriation of state agency authority would be a clear

disruption of the “orderly processes of government” which the Texas Supreme Court

has found is one of a few circumstances when a party may seek extraordinary relief

despite a remedy available by appeal. See In re Entergy Corp., 142 S.W.3d 316,

320-231 (Tex. 2004) (orig. proceeding). “This disruption, coupled with the hardship

imposed. . . by a postponed appellate review, warrants an exception to our general

proscription against using mandamus to correct incidental trial court rulings.” Id.

While CPRC 51.014 provides an appellate remedy on the merits of the

injunction granted by the District Court, such relief would not address the subject

matter jurisdiction surrounding this workers’ compensation proceeding. Therefore,

Appellant Fort Bend County contemporaneously filed a Petition for Writ of

Mandamus challenging the District Court’s subject matter jurisdiction to interfere

with a discovery matter pending before the Texas Division of Workers’

Compensation. Appellant respectfully requests this Court to take of the jurisdiction

matter before consideration of this Appeal.

ix STATEMENT OF CASE

Nature of the Case:

Pursuant to Texas Civil Practice and Remedies Code § 51.014, this is an appeal of the granting of a temporary injunction on a discovery matter pending before the Texas Division of Workers’ Compensation. (CR636) Appellant contends the District Court erred in granting injunctive relief on this issue before Appellee exhausted his administrative remedies.

Course of Proceedings:

Appellee filed a claim for death benefits at the Division of Workers’ Compensation (Division) claiming his spouse died in the course and scope of her employment. (CR138) Appellant Fort Bend County disputed the claim and sought a subpoena for records relevant to Appellee’s reliance on medical opinions that stress was a factor in the death. (CR176) Appellee objected to the request for the subpoena. (CR185) In September 2024, the Division Administrative Law Judge issued a subpoena for the records. (CR201) Appellee filed an application for a temporary restraining order in the 157th District Court, seeking to bar the subpoena and prohibiting resetting the workers’ compensation administrative matter. (CR20) Appellant appeared as Real Party in Interest seeking to modify the TRO to allow the workers’ compensation contested case hearing to be reset until the subpoena issue could be resolved. (CR25) The TRO was modified as such. (CR48) The TRO matter was transferred to the 11th District Court where a hearing on a temporary injunction began December 5, 2025. The hearing was continued to allow the parties to try to reach an agreement. (3RR29:24 – 31:19) No agreement was reached. Appellant filed a new request at the Division on December 27, 2024, for a Deposition Subpoena of the records. (CR341) Appellee objected to the request. (CR352) On January 24, 2025, Appellant filed with the Division an amended motion for the Deposition Subpoena. (CR387) Appellee objected to the motion. On January 27, 2025 the Division Administrative Law Judge issued a Deposition Subpoena of the records. (CR401) Appellant withdrew the September subpoena (Appendix E) and filed notice that it would serve the January Deposition Subpoena. Appellee did not file a motion to quash the Deposition Subpoena that issued in January, nor did he file an objection to the issued subpoena, nor did he seek a protective order. Appellee sought a new temporary restraining order to prevent compliance with the January Deposition Subpoena. (CR325) Appellant appeared as Real Party in Interest and filed a plea to the jurisdiction because the Texas Workers’ Compensation Act and the Texas x Government Code provide the exclusive authority to issue and enforce subpoenas at workers’ compensation contested case hearings. (CR419) The District Court granted the TRO without taking up Appellant’s plea to the jurisdiction and set the matter for a hearing on a temporary injunction on March 21, 2025. (CR443) At the March hearing, Appellant again appeared as Real Party in Interest to challenge jurisdiction on Appellee’s pleadings and second application for injunction. (CR460) The District Court denied Appellant’s plea to the jurisdiction, denied the Division’s plea to the jurisdiction, granted a temporary injunction and set a hearing on the merits of Appellee’s pleadings. (CR606, 611)

Trial Court Disposition:

By orders dated April 2, 2025, the trial court denied Appellant’s plea to the jurisdiction and motion to dismiss, denied the Division’s plea to the jurisdiction, granted the temporary injunction and set a trial on the merits in December 2025. (CR606, 611)

Appellate Posture:

The Division has appealed the denial of its plea to the jurisdiction. The Division is required to file in the 15th Court of Appeals. This Court accepted Appellant’s request to consolidate its appeal in this matter pursuant to Rule 15.2 of the Texas Rules of Judicial Administration; Appellant contemporaneously has filed a petition for Writ of Mandamus in this Court because its request for extraordinary relief stems from an order arising from the same nucleus of operative facts, the same hearing and essentially the same rulings in the District Court as the plea to the jurisdiction being appealed by Administrative Law Judge Okonkwo.

xi STATEMENT REGARDING ORAL ARGUMENT

Appellant Fort Bend County requests oral argument.

xii STATEMENT OF ISSUE PRESENTED

The District Court erred in denying Appellant Fort Bend County’s Motion to Dismiss Appellee Heiliger’s Petition for Temporary Injunction for the following reasons:

(4) No viable cause of action exists a. Appellee has not shown a cause of action can be sustained as a declaratory judgment action; b. Appellee has no statutory right to judicial review because he has not exhausted his administrative remedies and been aggrieved of a final Appeals Panel decision at the Division of Workers’ Compensation; c. Appellee has not established the right to mandamus relief because the Division has not acted beyond the scope of its lawful authority and Appellee has several adequate remedies at law; and d. Appellee has not shown an ultra vires claim lies because the Division has not exceeded its authority in conducting discovery;

(5) No probable right to the relief sought exists because Ms. Smith’s mental health records are protected by a qualified privilege that can be pierced in judicial proceedings when a party makes the condition a part of its claim or defense; and

(6) There is no probable, imminent, and irreparable injury in the interim because the Texas Workers’ Compensation Act specifically prohibits an ALJ from enforcing a discovery subpoena unless the ALJ or the party seeking the subpoena invokes Texas Government Code § 2001.201 to seek a District Court determination of good cause.

xiii STATEMENT OF THE FACTS

Appellant Fort Bend County1 is appealing the granting of a temporary

injunction by a Harris County District Court that prohibits the discovery of records

in an administrative dispute resolution proceeding to determine death benefits

pending before the Texas Department of Insurance – Division of Workers’

Compensation (“Division”). (CR et passim) A Contested Case Hearing (CCH) is

set for August 7, 2025, at the Division Houston East Field Office. 2 No final order

in this matter has been issued by the Division.

The Division – the agency granted the exclusive right, in the first instance, to

determine workers’ compensation issues -- must decide whether Appellee Joshua

Heiliger, individually as the surviving spouse of Lauren Brittane Smith and on behalf

of their adopted child Emma Destiney Heiliger, is entitled to workers’ compensation

death benefits. (SCR B) Lauren Smith was a paramedic for Fort Bend County EMS.

(SBC C) Ms. Smith passed away at home on April 10, 2023. (Id.) The issue being

disputed at the workers’ compensation administrative level is whether Ms. Smith

died in the course and scope of her employment. (SCR B) Mr. Heiliger filed a death

benefit claim on April 2, 2024, with the Division of Workers’ Compensation. Fort

1 Because of the multifarious designations of the parties in each level of this controversy, Appellant will refer to each party by name. See Party Designations in Each Tribunal, p. viii 2 See Appendix D which is a sworn copy from the Appellant’s files of DWC Docket No. 24229142- 01-CC-HE.

1 Bend County EMS (Fort Bend County) is disputing compensability. (SCR C)

During the Division contested case hearing process, Fort Bend County sought

and was granted a subpoena for mental health records from Dr. John Marcellus, the

doctor who was prescribing Ms. Smith ADHD medications. (CR277) Because Mr.

Heiliger is relying on medical opinions that stress was a factor in Ms. Smith’s death,

Fort Bend County argued these records are relevant and material to determine if the

doctor was incorporating knowledge about her underlying hypertension into her

treatment regarding complaints of stress. (CR167) Mr. Heiliger objected to the

issuance of the subpoena. (CR185) Those objections were overruled and on

September 19, 2024, Division Administrative Law Judge Francesca Okonkwo, who

presides over this workers’ compensation dispute, ordered a subpoena issue for Ms.

Smith’s mental health records spanning January 1, 2020 through April 10, 2023.

(CR201)

On November 12, 2024, Mr. Heiliger, wholly disregarding, the statutory

administrative process and unbeknownst to Fort Bend County, sought a temporary

restraining order in a district court to bar compliance with the subpoena. (CR20)

The Contested Case Hearing at this juncture was set for November 15, 2024. (CR26

of 25-33) A hearing on the TRO took place November 13, 2024, with no notice to

Fort Bend County, although Mr. Heiliger was able to notify the Texas Department

of Insurance, who objected at the hearing. (CR20-24) Despite the objection, the

2 District Court granted the TRO preventing the disclosure of the records yet requiring

the Division to go forth with the November 15, 2024, Contested Case Hearing. (Id.)

Fort Bend County was not notified until after the TRO had been granted on

November 13, 2024. (CR25-33) On that same day Fort Bend County, as Real Party

in Interest, filed an emergency motion to modify the TRO that was heard the next

day, November 14, 2024, by the 157th District Court which granted a modification

to the TRO allowing the Division to reset the CCH until the TRO could be resolved.

(CR25-30, 48-50)

On December 5, 2024, the 11th District Court began a hearing to determine

whether compliance with Fort Bend County’s subpoena should be temporarily

enjoined. (3RR1:1—32:18) Fort Bend County as Real Party in Interest re-asserted,

among other things, its Plea to the Jurisdiction. (CR83-108) During a break in that

hearing, Mr. Heiliger and Fort Bend County entered into a Rule 11 Agreement that

was filed with the District Court, and the District Court paused the temporary

injunction proceeding. (3RR29:24 – 31:16)

Under the Rule 11 Agreement, Fort Bend County submitted a DWQ to Dr.

John Marcellus on December 10, 2024. Mr. Heiliger responded on December 16,

2024, objecting to almost half of the questions. (CR423 of 419-442 and 4RR15:17

– 16:8) Fort Bend County attempted on numerous occasions to confer with Mr.

Heiliger’s counsel via telephone to no avail. (CR423 of 419-442 and 4RR15:17 –

3 16:8) The Rule 11 Agreement contained a self-destruct clause setting a December

20, 2024, deadline for Fort Bend County and Mr. Heiliger to reach an agreement on

the questions to be answered via the DWQ. (CR423 of 419-442 and 4RR15:17 –

16:8) No agreement was reached by that date, so Fort Bend County notified Mr.

Heiliger that the self-destruction provisions of the Rule 11 had become effective and

that Fort Bend County planned to pursue its legal remedies. (CR423 of 419-442 and

4RR15:17 – 16:8)

On December 27, 2024, Fort Bend County filed a motion at the Division

seeking the procedurally correct Deposition Subpoena of Dr. Marcellus pursuant to

the Subpoena Rule for Contested Case Hearings before the Division of Workers’

Compensation.3 (CR295-310) Mr. Heiliger objected on December 30, 2024,

arguing solely that the ALJ should not issue this subpoena because a TRO was

pending on the September subpoena. (CR321-324)

On January 24, 2025, Fort Bend County submitted an amended request for a

Deposition Subpoena, effectively replacing the December 27, 2024 motion.

(CR387-399) While Mr. Heiliger indicated he was opposed to the amended motion

for the new Deposition Subpoena in a conference with Fort Bend County’s counsel,

3 It was discovered during the District Court hearings that the September subpoena was procedurally defective. The September subpoena eventually was withdrawn and ALJ Okonkwo vacated the subpoena by Order issued February 18, 2025. See Appendix E, which is a sworn copy from the Appellant’s files of DWC Docket No. 24229142-01-CC-HE 4 Mr. Heiliger filed no objection. Administrative Law Judge Okonkwo granted Fort

Bend County’s Deposition Subpoena of Dr. Marcellus on January 27, 2025. (5RR2)

Fort Bend County withdrew the original Subpoena dated September 19, 2024,

and noticed Mr. Heiliger it would now serve the January 27, 2025, Deposition

Subpoena. (4RR14:19-23; 15:5-14; 22:15-23:12)

The Deposition Subpoena was served on Dr. Marcellus on February 10, 2025,

commanding he appear on February 24, 2025, at 10 a.m. to permit inspection and

copying of the records. (5RR2) Mr. Heiliger filed no objection at the Division; he

filed no motion to quash; he filed no motion seeking protection from the

Deposition Subpoena. Mr. Heiliger filed nothing at the Division, no challenge

whatsoever to the January Deposition Subpoena. But on February 10, 2025, Mr.

Heiliger filed a second application for a temporary restraining order along with a

request for a hearing on Mr. Heiliger’s pending temporary injunction on the now

moot September subpoena. Fort Bend County re-urged its Plea to the Jurisdiction

and set it for hearing. (CR325 – 414)

At a hearing on February 18, 2025, the District Court refused to take up Fort

Bend County’s Plea to the Jurisdiction but took up Mr. Heiliger’s application for

TRO on the January Deposition Subpoena. (4RR41:3-5, 8-17) The District Court

issued a temporary restraining order preventing compliance with the January

Deposition Subpoena and set a March 21, 2025 hearing to take up, among other

5 things, Fort Bend County’s Plea to the Jurisdiction and Mr. Heiliger’s Second

Application for Temporary Injunction. (Id., CR443-446) At the March hearing, the

District Court took the parties’ arguments under advisement and subsequently

entered orders April 2, 2025 denying Fort Bend County’s Plea to the Jurisdiction,

denying in part and granting in part ALJ Okonkwo’s Plea to the Jurisdiction4,

granting Mr. Heiliger’s Temporary Injunction and setting a hearing on the merits of

the matter for December 1, 2025. (1RR et passim and CR606-613)

Fort Bend County now seeks to dispose of the temporary injunction and vacate

the order setting trial on the merits and requests the Court to vacate the order denying

Fort Bend County’s Motion to Dismiss because Appellee has not shown any right to

relief. The Texas Labor Code specifically dictates the legal process for conducting

discovery during workers’ compensation administrative disputes and provides this

Appellee with relief as mandated by the Texas Legislature.

4 ALJ Okonkwo has an appeal pending before this Court challenging the district court’s jurisdiction as well in this matter.

6 SUMMARY OF THE ARGUMENT

This is an appeal of the granting of temporary injunction and an order setting

a trial on the merits regarding a discovery issue pending before the Texas Division

of Workers’ Compensation (“Division”).

Appellant Fort Bend County contemporaneously has filed a Petition for

Writ of Mandamus challenging the subject matter jurisdiction of the District Court

when an agency has exclusive jurisdiction, such as here in this case. Appellant

Fort Bend County respectfully requests this Court to take up the Petition for Writ

of Mandamus prior to the consideration of this appeal.

Appellant Fort Bend County files the appeal pursuant to Texas Civil Practice

and Remedies Code § 51.014 because Appellee Joshua Heiliger has not produced

any competent evidence to support a probable right to relief nor a probable injury.

That is because the Texas Legislature has granted exclusive jurisdiction to the

Division to decide workers' compensation disputes in the first instance, which

impliedly requires that the agency has whatever powers crucial to fulfill its express

function. This power necessarily and statutorily includes the power to promulgate

discovery. The Texas Workers' Compensation Act specifically provides the process

to grant and to enforce discovery subpoenas during a workers' compensation dispute.

The statutory scheme for enforcing a subpoena at a workers’ compensation contested

case hearing mandates that the administrative law judge (“ALJ”) or the party

7 requesting the subpoena must seek a district court’s permission to enforce a

subpoena. The District Court erred by allowing the claimant in the workers’

compensation dispute to forego the correct legal process at the Division that would

trigger the enforcement process. A district court cannot interfere with an

administrative discovery simply because the person subject to an administrative

discovery subpoena or any other person affected by the subpoena – such as Mr.

Heiliger objects to the subpoena. A challenge to such a subpoena must be brought

at the Division first. Once that challenge is made, the Act requires the ALJ or the

party requesting the subpoena to proceed under Government Code § 2001.201 to

then seek court enforcement of the subpoena. This failsafe, which ensures the ALJ

does not abuse her discretion, has not occurred in this matter. Accordingly, the

district court erred in granting injunctive relief because Appellee has not shown 1) a

cause of action against the Division; (2) a probable right to the relief sought; and (3)

a probable, imminent, and irreparable injury in the interim.

8 ARGUMENT AND AUTHORITY

A temporary injunction is “an extraordinary remedy and does not issue as a

matter of right.” Patel v. St. Luke's Sugar Land P'ship, L.L.P., 445 S.W.3d 413, 419

(Tex. App.—Houston [1st Dist.] 2013, pet. denied) (quoting Walling v. Metcalfe, 863

S.W.2d 56, 57 (Tex. 1993) (per curiam)).

To obtain a temporary injunction, an applicant must establish three elements:

(1) a cause of action against the defendants; (2) a probable right to the relief sought;

and (3) a probable, imminent, and irreparable injury in the interim. Id. See also

Butnaru v. Ford Motor Co., 84 S.W.3d 198, 204 (Tex. 2002)

An applicant for injunctive relief must plead a valid cause of action against

the respondent and request some form of permanent relief, such as a permanent

injunction or damages. See Abbott v. Anti-Defamation League, 610 S.W.3d 911, 916

(Tex.2020); Walling at 57. If the applicant pleads a cause of action that is not

recognized in Texas, the trial court cannot grant an injunction. See, e.g., Valenzuela

v. Aquino, 853 S.W.2d 512, 513 (Tex.1993) (because Texas has no cause of action

for negligent infliction of emotional distress, trial court could not enjoin picketers).

In addition to pleading and proving a viable cause of action in seeking a

restraining order or injunction, a petitioner also must plead and prove a probable

right to the relief sought and a probable, imminent, and irreparable injury in the

interim. Patel, supra; See also Tex. R. Civ. P. 682.

9 A probable right to the relief sought is shown by alleging a cause of action

and presenting evidence that tends to sustain it. Tanguy v. Laux, 259 S.W.3d 851,

857 (Tex. App.—Houston [1st Dist.] 2008, no pet.), citing Tel. Equip. Network, Inc.

v. TA/Westchase Place, Ltd., 80 S.W.3d 601, 607 (Tex. App.—Houston [1st Dist.]

2002, no pet.).

“An injury is irreparable if the injured party cannot be adequately

compensated in damages or if the damages cannot be measured by any certain

pecuniary standard.” Butnaru, 84 S.W.3d at 204. The applicant need not establish

that he will prevail at trial; rather, “the only question before the trial court is whether

the applicant is entitled to preservation of the status quo of the subject matter of the

suit pending trial on the merits.” Id.

It is an abuse of discretion for a trial court to grant a temporary injunction

unless it is clearly established that the applicant is threatened with actual irreparable

injury if the injunction is not granted. Jordan v. Landry's Seafood Rest., Inc., 89

S.W.3d 737, 742 (Tex. App.—Houston [1st Dist.] 2002, pet. denied). An injunction

is not proper when the claimed injury is merely speculative; fear and apprehension

of injury are not sufficient to support a temporary injunction. Id.

The Division of Workers' Compensation has exclusive jurisdiction over

workers’ compensation claims and the Texas Workers' Compensation Act provides

exclusive remedies for these claims. In re Crawford & Co., 458 S.W.3d 920, 923

10 (Tex. 2015). The Act designates the Department of Insurance as the administrative

agency responsible “[for overseeing] the workers' compensation system of this state”

and establishes the Division of Workers' Compensation within the Department to

“administer and operate” that system. Id., citing Tex. Lab. Code § 402.001. The

Crawford Court found that it is the Division's duty to “(1) regulate and administer

the business of workers' compensation in this state; and (2) ensure that [the Act] and

other laws regarding workers' compensation are executed.” Id., citing Tex. Lab.

Code § 402.00114. The Act, as substantially revised in 1989, prescribes, among

other things, the detailed “time-compressed” processes for carriers to handle claims

and for dispute resolution. Id.

Under the Act, the Legislature has vested the Texas Department of Insurance

– Division of Workers’ Compensation (“Division”) with authority to make the first

determination whether a claimant is entitled to workers' compensation

benefits. See American Motorists Ins. Co. v. Fodge, 63 S.W.3d 801 (Tex. 2001). See

also TEX. LABOR CODE § 408.001. This exclusive jurisdiction provision requires that

a claimant or employer in a workers’ compensation case must exhaust all

administrative remedies before seeking judicial review of the agency's action. See

In re Entergy Corp., 142 S.W.3d 316, 321-322 (Tex. 2004). Requiring a party to

exhaust his administrative remedies prior to filing suit does not deprive him of any

legal rights. In re Prentis, 702 S.W. 3d 762, 772 (Tex. App.—Houston [1st Dist.]

11 2024, no pet). On the contrary, the First Court of Appeals found that rather than

depriving a party of his rights, the requirement to exhaust the administrative

remedies honors the Legislature's intent that the appropriate body adjudicate the

dispute first to ensure an orderly procedure to enforce those rights. Id. at 772-73,

quoting Berrelez v. Mesquite Logistics USA, Inc., 562 S.W.3d 69, 73 (Tex. App.—

San Antonio 2018, no pet.) (internal quotation marks omitted). This is because the

exhaustion of administrative remedies requirement permits the agency in question

to apply its expertise and develop a factual record if a suit is later filed. Id.

Part of the Division’s lawful exercise of its jurisdiction over workers’

compensation disputes is to conduct hearings. See Tex. Lab. Code § 410.163. At a

contested case hearing the administrative law judge shall “(1) swear witnesses; (2)

receive testimony; (3) allow examination and cross-examination of witnesses; (4)

accept documents and other tangible evidence; and (5) allow the presentation of

evidence by affidavit.” See Tex. Lab. Code § 410.163(a). The statute governing the

powers and duties of the ALJ at a contested case hearing further requires that the

ALJ “shall ensure the preservation of the rights of the parties and the full

development of facts required for the determinations to be made.” See Tex. Lab.

Code § 410.163 (b) (emphasis added).

The First Court of Appeals, which sits in Harris County where the District

Court is located, found relevant that the Act vests the Division with the sole authority

12 to determine whether an employee suffered a “compensable injury” entitling him to

workers’ compensation benefits. Prentis, at 769, citing Henry v. Dillard Dept.

Stores, Inc., 70 S.W.3d 808, 809 (Tex. 2002); also citing In re Metro. Transit Auth.,

334 S.W.3d 806, 810–11 (Tex. App.—Houston [1st Dist.] 2011, orig. proceeding).

“A ‘compensable injury’ is one that ‘arises out of and in the course and scope of

employment for which compensation is payable’ under the Act.” Id., citing TEX.

LAB. CODE § 401.011(10) and Morales v. Liberty Mut. Ins. Co., 241 S.W.3d 514,

518 (Tex. 2007). “Because course and scope of employment is an element of

compensability, the Division's ‘exclusive jurisdiction to determine compensability

[thus] necessarily encompasses [the] exclusive jurisdiction to determine whether an

injury ... occurred in the course and scope of employment.’” Id., citing In re Tyler

Asphalt & Gravel Co., Inc., 107 S.W.3d 832, 839 (Tex. App.—Houston [14th Dist.]

2003, orig. proceeding).

When the Legislature “expressly confers a power on an agency, it also

impliedly intends that the agency have whatever powers are reasonably necessary to

fulfill its express functions or duties. . . ” See Liberty Mut. Ins. Co. v. Adcock, 412

S.W. 3d 492, 494 (Tex. 2013), quoting Pub. Util. Comm'n of Tex. v. City Pub. Serv.

Bd. of San Antonio, 53 S.W.3d 310, 316 (Tex. 2001).

The Texas Legislature has, in fact, purposefully given the Division full

authority and the reasonable powers necessary to make the first determination of

13 whether a workplace injury is a compensable injury arising out of the course and

scope of employment. The Texas Workers’ Compensation Act, codified in the

Texas Labor Code, expressly grants the Division the authority to issue orders and

subpoenas to gather and weigh evidence relevant and necessary during the dispute

resolution process under the Act. See Tex. Lab. Code §§ 410.158; 410.162; 410.165.

The statutory grant of authority to the Division also includes the power to adopt rules

to govern procedures for these contested case hearings. See Tex. Lab. Code §

410.157 (“The commissioner shall adopt rules governing procedures under which

contested case hearings are conducted.”). The Division Rules are embodied in the

Texas Administrative Code and include specific rules for conducting contested case

hearings, obtaining evidence at contested case hearings and detailed procedures for

discovery at contested case hearings. See 28 Tex. Admin. Code §§ 141 and 142.

For ease of reference of the many statutes and rules governing workers’

compensation contested case hearings and the procedures for discovery at such

hearings, the following list is provided:

o Texas Labor Code § 410.003 – Restricts the application of Chapter 2001 of the Government Code (Administrative Procedure Act) in workers’ compensation administrative proceedings unless specifically provided in Chapter 410 of the Act; o Texas Labor Code § 410.157 – Authorizes the promulgation of rules for conducting contested case hearings at the Division o Texas Labor Code § 410.158 – Authorizes limited discovery during the dispute resolution process at the Division;

14 o Texas Labor Code § 410.162 – Allows, for good cause shown, that a party may obtain permission from the administrative law judge to conduct additional discovery as necessary; o Texas Labor Code § 410.165 – Authorizes the administrative law judge as the sole judge of the relevance and materiality of the evidence offered and of the weight and credibility to be given to the evidence. o 28 Tex. Admin. Code § 141.4 -- Pertinent information at a benefit review conference is defined as all information relevant to the resolution of the disputed issue or issues to be addressed at the benefit review conference, including but not limited to, among other things, the injured employee's medical records. o 28 Tex. Admin. Code § 142.2 -- Authorizes the authority of the Division ALJ to, among other things, issue a subpoena on its own motion or at the request of a party if the ALJ determines the party has a good cause, rule on admissibility, and determine the weight and credibility of evidence. o 28 Tex. Admin. Code § 142.12 – Allows the Division ALJ to issue a subpoena on its own motion or at the request of a party upon a determination of relevancy to the disputed issue; o 28 Tex. Admin. Code § 142.13 – Authorizes the Division ALJ to grant a party permission to conduct discovery beyond that described in Texas Labor Code § 410.158 upon a showing of good cause at a hearing held for this purpose; and o 28 Tex. Admin. Code § 142.1 – Mandates that the only section of the Government Code (Administrative Procedure Act) that applies to the contested cases hearings is § 2001.201 relating to the enforcement of subpoenas. The Act specifically sets out how subpoenas are to issue and how they are to

be enforced in workers’ compensation contested case hearings. Specifically, the Act

prohibits an ALJ from enforcing a subpoena unless the ALJ or the party seeking the

subpoena invokes Texas Government Code § 2001.201. That section provides as

follows:

15 (a) If a person fails to comply with a subpoena or commission issued under this chapter, the state agency issuing the subpoena or commission, acting through the attorney general, or the party requesting the subpoena or commission may bring suit to enforce the subpoena or commission in a district court in Travis County or in the county in which a hearing conducted by the agency may be held. See Tex. Gov’t. Code § 2001.201.

Furthermore, Texas jurisprudence expressly recognizes that mental health

records, like the ones at issue here, are obtainable in controversies where the mental

condition is at issue. Under Texas Rule of Evidence 510(d)(5) the privilege of

confidentiality for mental health records does not apply if any party relies on the

patient's physical, mental, or emotional condition as a part of the party's claim or

defense and the communication or record is relevant to that condition. The Texas

Health and Safety Code provides a qualified privilege for such records but has

specifically carved out exceptions. See Tex. Health & Safety Code § 611. In the

section of the Mental Health Records statute entitled “Authorized Disclosure of

Confidential Information in a Judicial or Administrative Proceeding,” the Texas

Legislature expressly authorized the disclosure of mental health records in “a

judicial or administrative proceeding where the court or agency has issued an order

or subpoena.” See TEX. HEALTH & SAFETY CODE § 611.006(a)(11).

16 Restatement of Argument

The District Court erred in denying Appellant Fort Bend County’s Motion to

Dismiss Appellee Heiliger’s Petition for Temporary Injunction for the following

reasons:

(7) No viable cause of action exists a. Appellee has not shown a cause of action can be sustained as a declaratory judgment action because there is a pending matter between the same parties in which the issues can be adjudicated. That pending matter is the administrative dispute resolution process pending now before the Division of Workers’ Compensation. b. Appellee has no statutory right to judicial review because he has not exhausted his administrative remedies and been aggrieved of a final Appeals Panel decision at the Division of Workers’ Compensation. Mr. Heiliger has no inherent right to judicial review because the confidentiality of mental health records is not an absolute privilege, but rather a qualified privilege because Texas Law specifically authorizes the disclosure of confidential mental health records in a judicial or administrative proceeding where the court or agency has issued an order or subpoena. c. Appellee has not established the right to mandamus relief for the following reasons: i. The Division has not acted beyond the scope of its lawful authority because the Division Administrative Law Judge is the sole judge of the relevance and materiality of the evidence offered and of the weight and credibility to be given to the evidence,5 and the ALJ may allow parties to conduct discovery as necessary.6 Furthermore, Texas Law contemplates that mental

5 See TEX. LABOR CODE ANN. § 410.165 6 See TEX. LABOR CODE ANN. § 410.162

17 health records can be subjected to the subpoena power of a judicial or administrative proceeding.7 The ALJ has not clearly abused her discretion in ordering the production of these records when Appellee has put Ms. Smith’s mental condition at issue by seeking opinions that Ms. Smith suffered from stress that may have contributed to her death and her psychiatrist Dr. Marcellus treated Ms. Smith for Post-Traumatic Stress Disorder8; and ii. Appellee has several adequate remedies at law. The subpoena cannot be enforced unless and until the ALJ or Fort Bend County seeks to compel it through a District Court hearing. The subpoena at issue requires any records obtained by Fort Bend County to be held confidentially.9 The Texas Labor Code requires information relating to a workers’ compensation claim to remain confidential when released to any person, except when used in court for the purposes of an appeal (Tex. Lab. Code § 402.083(a) and 402.086(a)). Appellee has at least four other remedies: an Appeals Panel review; judicial review in district court; appellate review in the courts of appeal; final review in the Texas Supreme Court. d. Appellee has not shown an ultra vires claim. The Division has not exceeded its authority in conducting discovery, ruling on discovery and ordering the disclosure of records authorized by statute to be disclosed via a subpoena. Ms. Smith’s mental health records are not being disclosed publicly. The records are being disclosed as an authorized disclosure contemplated by the Texas Health and Safety Code.10

(8) No probable right to the relief sought exists. Ms. Smith’s mental health records are protected by the privilege of confidentiality, however, it is not an absolute privilege. It is a qualified privilege that can be pierced in judicial proceedings when a party makes the condition a part of its claim or defense.11 The privilege is severely limited whenever the mental health condition is

7 See TEX. HEALTH & SAFETY CODE ANN. § 611.006(a)(11) 8 See SCR Exhibits B, C, D, E and F. 9 See 5RR2 10 See TEX. HEALTH & SAFETY CODE ANN. § 611.006(a)(11) 11 See TEX. HEALTH & SAFETY CODE ANN. § 611.006(a)(11). See also TEX. R, EVID. Rule 510 (“If any party relies on the patient's physical, mental, or emotional condition as a part of the party's claim or defense and the communication or record is relevant to that condition.). 18 relevant to any party’s claim or defense. Whether the mental health condition is part of a party’s claim or defense is determined from the face of the pleadings and then, if necessary, from the allegedly privileged records.

(9) There is no probable, imminent, and irreparable injury in the interim because the Texas Workers’ Compensation Act specifically prohibits an ALJ from enforcing a subpoena unless the ALJ or the party seeking the subpoena invokes Texas Government Code § 2001.201

Mr. Heiliger has not shown that his irreparable injury is imminent because the

records will not be disclosed outside of the administrative hearing; the Division does

not have the power to enforce the subpoena without seeking district court approval;

the enforcement of the Deposition Subpoena is not ripe because the doctor has not

refused to produce the records and even if he has neither the Division or Fort Bend

has moved to compel the production via the Deposition Subpoena; and Mr.

Heiliger’s due process rights and all the arguments he poses here are allowable in

some form during the contested case hearing before the Division.

1. NO VIABLE CAUSE OF ACTION EXISTS

A. Declaratory Judgment Action is Not Proper

1. A Pending Matter Exists

A declaratory action is not proper in this case because there is a pending matter

between the same parties in which the issues can be adjudicated. That pending

matter is the administrative dispute resolution process pending now before the

Division of Workers’ Compensation. As a general rule, "an action for declaratory 19 judgment will not be entertained if there is pending, at the time it is filed, another

action or proceeding between the same parties and in which may be adjudicated the

issues involved in the declaratory action. See Texas Liquor Control Board v. Canyon

Creek Land Corp., 456 S.W.2d 891, 895 (Tex. 1970); Space Master Int'l, Inc. v.

Porta-Kamp Mfg. Co., 794 S.W.2d 944, 946-47 (Tex. Civ. App.—Houston [1st Dist.]

1990, no writ).

Under the Texas Workers’ Compensation Act, the Texas Legislature has

vested the Texas Department of Insurance – Division of Workers’ Compensation

(“Division”) with authority to make the first determination whether a claimant is

entitled to workers' compensation benefits. See American Motorists Ins. Co. v.

Fodge, 63 S.W.3d 801 (Tex. 2001). See also TEX. LABOR CODE § 408.001. This

exclusive jurisdiction provision requires that a claimant or employer in a workers’

compensation case must exhaust all administrative remedies before seeking judicial

review of the agency's action. See In re Entergy Corp., 142 S.W.3d 316, 321-

322 (Tex. 2004).

A suit for declaratory judgment does not allow a district court to review an

agency action that is not otherwise reviewable. See City of Houston v. Williams, 99

S.W.3d 709, 712-13 (Tex. App.—Houston [14th Dist.] 2003, no pet.). When a statute

provides an avenue for attacking an agency order, a declaratory judgment action will

20 not lie. See Strayhorn v. Raytheon E-Systems, Inc., 101 S.W.3d 558, 572 (Tex.

App.—Austin 2003, pet. denied).

Under the Act, the Administrative Law Judge is the sole judge of the relevance

and materiality of the evidence offered and of the weight and credibility to be given

to the evidence. See TEX. LABOR CODE Ann. § 410.165. The Division may issue a

subpoena on its own motion or at the request of a party if the ALJ determines the

party has good cause. See 28 TEX. ADMIN. CODE § 142.12.

The Adopted Rules governing administrative proceedings provide a

mechanism to challenge a subpoena issued during an administrative proceeding. For

the same reasons that generally a mandamus is not proper if there is an available

remedy, a declaratory judgment action action is not proper when there is another

proceeding that affords a remedy. The Act provides that the Division ALJ may

conduct discovery and issue subpoenas and seek enforcement of its subpoenas. See

TEX. LABOR CODE § 410.158 and § 410.162; 28 TEX. ADMIN. CODE § 142.12 and §

142.13. See 28 TEX. ADMIN. CODE § 142.2. See TEX. GOV’T CODE § 2001.201.

While there is no specific grant of authority to challenge a subpoena issued by

a Division ALJ, there is a remedy available for the target of a Division subpoena:

the target can move for protection at the administrative hearing which would force

the Division or the party seeking the subpoena to seek enforcement of the subpoena

under Government Code § 2001.201.

21 If the Division or Fort Bend sought an enforcement action under Texas

Government Code § 2001.201, Mr. Heiliger would have all the due process rights

and arguments he is trying to make here by hop, skipping and jumping over the

required process codified in the Texas Workers’ Compensation Act. At the §

2001.201 enforcement proceeding, a party such as Appellee or Dr. Marcellus could

bring all the same arguments Appellee is improperly requesting as injunctive relief.

The only difference would be that in a § 2001.201 proceeding the District Court

would not be snatching the reins from the rightful rider.

Or Mr. Heiliger could claim his privilege at the workers’ compensation

contested case hearing and if neither the Division nor Fort Bend seeks enforcement,

the privilege would remain unpierced.

Either way there is already a proceeding in place that affords Mr. Heiliger

exactly what he seeks here. Therefore, a declaratory judgment action is not proper.

2. No Statutory Authority Has Been Exceeded

A declaratory judgment is not proper in this matter because no statutory

authority has been exceeded.

The power of courts to issue declaratory judgments under the UDJA in the

face of administrative proceedings is limited. Texas Courts have held that when a

statute provides an avenue for attacking an agency order, a declaratory judgment

22 action will not lie to provide redundant remedies. See Beacon Nat. Ins. Co. v.

Montemayor, 86 S.W.3d 260, 267 (Tex. App.—Austin 2002, no pet.), citing Young

Chevrolet, Inc. v. Texas Motor Vehicle Bd., 974 S.W.2d 906, 911 (Tex.App.-Austin

1998, pet. denied). “An administrative body is entitled to exercise its statutory duties

and functions without interference from the courts, unless it exceeds that statutory

authority. Id., citing Westheimer Indep. Sch. Dist. v. Brockette, 567 S.W.2d 780, 785

(Tex.1978). A party may employ a declaratory judgment action to intervene in

administrative proceedings only when an agency is exercising authority beyond its

statutorily conferred powers. See Nuchia v. Woodruff, 956 S.W.2d 612, 615–16

(Tex. App.—Houston [14th Dist.] 1997, pet. denied).

The Division is acting completely within its statutory authority. The Texas

Labor Code provides a discovery process to parties in a dispute. TEX. LAB. CODE §§

410.158 (a); 410.162. The Division has promulgated rules to conduct discovery. 28

TEX. ADMIN. CODE §§ 142.2, 142.12, 142.13. A Division ALJ has authority to grant

additional discovery other than deposition by written questions, oral depositions and

interrogatories. TEX. LAB. CODE § 410.162. The Adopted Rules authorize the

Division ALJ to issue subpoenas. 28 TEX. ADMIN. CODE § 142.2(1).

The Act even built in a process to prevent a Division ALJ from exceeding her

authority when it comes to subpoenas by requiring an ALJ to seek district court

23 permission under Texas Government Code 2001.201, supra, to enforce its

subpoenas.

So, again, all of Mr. Heiliger’s rights are intact and he has a specifically carved

out path to address in a district court -- via proper legal process -- all of the issues he

raises here if and when the Division or Fort Bend County tries to enforce the

Deposition Subpoena.

B. No Inherent Nor Statutory Right to Judicial Review

Mr. Heiliger has no statutory right to judicial review because he has not

exhausted his administrative remedies and been aggrieved of a final Appeals Panel

decision at the Division of Workers’ Compensation.

Fort Bend County affirmatively asserts that any common law remedies when

Ms. Smith acquiesced to workers’ compensation coverage. Under Texas Labor

Code § 406.034(b), Ms. Smith could have retained the common-law right of action

to recover damages for personal injuries or death. Instead she chose to accept the

remedies under the Texas Workers’ Compensation Act with all its restrictions,

requirements and procedures. Just because Mr. Heiliger doesn’t like the rules of the

procedure Ms. Smith chose, he cannot try to twist his claim into a common-law right

of action to benefit from a different set of rules.

24 Mr. Heiliger has no inherent right to judicial review because the

confidentiality of mental health records is not an absolute privilege, but rather a

qualified privilege because Texas Law specifically authorizes the disclosure of

confidential mental health records in a judicial or administrative proceeding where

the court or agency has issued an order or subpoena.

Texas Health & Safety Code § 611 is the authority that creates the privilege

of confidentiality for mental health records. Section 611.002 prohibits the disclosure

of these confidential communications between a patient and a professional, as well

as the records of the identity, diagnosis, evaluation, or treatment of a patient that are

created or maintained by a professional. Section 611.003(a)(2) in conjunction with

Section 611.004 (a)(5) allow Mr. Heiliger to claim this privilege as the representative

of Ms. Smith. Section 611.005 prescribes the remedy for an improper disclosure or

failure to disclose confidential mental health records.

But most importantly, Section 611.006(a) authorizes 11 instances in which

the disclosure of confidential information is authorized. All of the authorized

disclosures enumerated in this section have to do with a judicial or administrative

proceeding. Mr. Heiliger argued before the District Court Texas Health & Safety

Code § 611.004 as the authority for exceptions to disclosure, but those exceptions

apply only if there is no judicial or administrative proceeding. The Texas Legislature

specifically carved out separate exceptions in § 611.006 that authorize disclosure in

25 judicial and administrative proceedings. Mr. Heiliger has wholly ignored the

authority that applies in this matter.

Section 611.006(a)(11) specifically authorizes the disclosure of confidential

mental health information in a judicial or administrative proceeding where the court

or agency has issued an order or subpoena. This statute explicitly provides an

exception to the privilege of confidentiality of mental health records in the exact

situation.

Additionally the Texas Rules of Evidence provide another exception to the

privilege of confidentiality of mental health records. Under Rule 510(d)(5), the

privilege does not apply “[i]f any party relies on the patient's physical, mental, or

emotional condition as a part of the party's claim or defense and the communication

or record is relevant to that condition.”

The exception to the qualified privilege and the rules of evidence provide for

the discovery of these mental health records because Mr. Heiliger has put Ms.

Smith’s mental condition at issue. (SCR Exhibits B, C, D, E and F)

C. No Right to Mandamus Relief for Appellee

The Texas Supreme Court has established a two-prong test that courts apply

to petitions for writ of mandamus. Walker v. Packer, 827 S.W.2d 833 (Tex. 1992)

(orig. proceeding). Under this standard, the trial court must have abused its

26 discretion, and as a result, the party seeking relief must have been left without an

adequate remedy on appeal. Id at 839-40.

To determine a clear abuse of discretion, a reviewing court may not substitute

its judgment for that of the administrative tribunal to resolve matters committed to

that tribunal's discretion of factual issues. Id at 839. The party seeking relief must

establish there is only one result that the Division could have reasonably reached.

Id. at 840. Because reasonable minds differ, the fact that one court would have

decided the case differently will not give rise to an abuse of discretion “unless it is

shown to be arbitrary and unreasonable.” Id.

Mandamus relief will not issue when “the law has provided another plain,

adequate, and complete remedy.” Aycock v. Clark, 94 Tex. 375, 60 S.W. 665, 666

(1901); see also Canadian Helicopters v. Wittig, 876 S.W.2d 304, 305-06 (Tex.

1994) (orig. proceeding) (affirming that mandamus relief must be the exclusive

remedy for the parties); Holloway v. Fifth Court of Appeals, 767 S.W.2d 680, 684

(Tex. 1989) (orig. proceeding) (noting that parties must have no other available

appellate relief). Absent very specific exceptions, Texas jurisprudence requires that

an alternative appellate remedy must not exist before a court may grant mandamus

relief. In re State Bar of Tex., 113 S.W.3d 730, 734 (Tex. 2003) (orig. proceeding)

(quoting Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992) (orig. proceeding)).

27 The Division has not acted beyond the scope of its lawful authority because

the ALJ is the sole judge of the relevance and materiality of the evidence offered and

of the weight and credibility to be given to the evidence. The ALJ may allow parties

to conduct discovery as necessary. See TEX. LABOR CODE Ann. § 410.165 and §

410.162. Furthermore, Texas law contemplates that mental health records can be

subjected to the subpoena power of a judicial or administrative proceeding. See TEX.

HEALTH & SAFETY CODE § 611.006(a)(11). The ALJ has not clearly abused her

discretion in ordering the production of these records when Mr. Heiliger has put Ms.

Smith’s mental condition at issue by seeking opinions that Ms. Smith suffered from

stress that may have contributed to her death and her psychiatrist Dr. Marcellus

treated Ms. Smith for Post-Traumatic Stress Disorder. (SCR Exhibits B, C, D, E and

F)

Mr. Heiliger has several adequate remedies at law. The Deposition Subpoena

at issue requires any records obtained by Fort Bend County to be held confidentially.

(5RR2) The Texas Labor Code requires information relating to a workers’

compensation claim to remain confidential when released to any person, except

when used in court for the purposes of an appeal. See TEX. LABOR CODE Ann. §

402.083(a) and § 402.086(a). Mr. Heiliger has at least four other remedies: an

Appeals Panel review; judicial review in district court; appellate review in the courts

of appeal; final review in the Texas Supreme Court.

28 D. Ultra Vires Does Not Lie

To sustain an ultra vires claim, a party must allege, and ultimately prove, that

the named governmental employee acted without legal authority or failed to perform

a purely ministerial act.” Chambers-Liberty Ctys. Navigation Dist. v. State, 575

S.W.3d 339, 344–45 (Tex. 2019), citing City of El Paso v. Heinrich, 284 S.W.3d

366, 372 (Tex. 2009). Only prospective injunctive relief is available on an ultra

vires claim. Id. at 374–77.

An ultra vires claim depends on the scope of the state official's authority,

not the quality of the official's decisions. Honors Acad., Inc. v. Tex. Educ. Agency,

555 S.W.3d 54, 68 (Tex. 2018) (emphasis added), citing Hall v. McRaven, 508

S.W.3d 232, 234 (Tex. 2017). Thus, it is not an ultra vires act for an official to make

an erroneous decision within the authority granted. Id.

To fall within the ultra vires exception, a suit must allege that a state official

acted without legal authority or failed to perform a purely ministerial act; it must not

attack the official's exercise of discretion. Tex. Dep't of Ins., Div. of Workers' Comp.

v. Brumfield, No. 04-15-00473-CV, 2016 WL 2936380, at *4–5 (Tex. App.—San

Antonio May 18, 2016, no pet.). In that case the pleadings regarding the

Commissioner of the Texas Department of Insurance simply stated that he acted

beyond his statutory authority in failing to properly apply, interpret, and enforce the

statute and rules for which declaratory relief was sought, Id. The Court held the

29 pleadings failed to include any specific facts indicating that the Commissioner acted

without legal authority or failed to perform a purely ministerial act. Id. Rather, the

focus of the allegations was a discretionary act -- the Division's decision to deny a

claim for workers' compensation. Id. “Complaints that an official reached a wrong

result when exercising its delegated authority are insufficient to state an ultra vires

claim of exceeding statutory authority.” Id., quoting Moers v. Harris Co. Appraisal

Dist., 469 S.W.3d 655, 666 (Tex. App.—Houston [1st Dist.] 2015, pet. denied). The

Brumfield Court ultimately held that Brumfield's pleadings affirmatively

demonstrated that his claims against the Commissioner did not fall within the ultra

vires exception. Id.

For these reasons, an ultra vires claim does not lie in this case. The Division

has not exceeded its authority in conducting discovery, ruling on discovery and

ordering the disclosure of records authorized by statute to be disclosed via a

subpoena. The Texas Workers’ Compensation Act specifically sets out how

subpoenas are to issue and how they are to be enforced in workers’ compensation

contested case hearings. Further, Ms. Smith’s mental health records are not being

disclosed publicly. The records are being disclosed as an authorized disclosure

contemplated by the Texas Health and Safety Code.12

12 See TEX. HEALTH & SAFETY CODE ANN. § 611.006(a)(11).

30 2. NO PROBABLE RIGHT OF RELIEF EXISTS

No probable right to the relief sought exists. Ms. Smith’s mental health

records are protected by a qualified privilege that can be pierced in judicial

proceedings when a party makes the condition a part of its claim or defense.

Under Texas Health & Safety § 611.006(11), a disclosure of mental records

in an administrative proceeding where the agency has issued a subpoena for their

production is a legally authorized disclosure. A person has a civil cause of action

for damages only if he is aggrieved by the improper disclosure of confidential

records. TEX. HEALTH & SAFETY CODE § 611.005 (a), (c). Health and Safety Code

Section 611.005 does not authorize a cause of action for an authorized disclosure of

confidential records in a judicial or administrative proceeding under Section

611.006. Therefore, Mr. Heiliger has no cause of action to support his request for

injunctive relief.

Texas law does protect mental health records but that protection is not an

absolute privilege. R.K. v. Ramirez, 887 S.W.2d 836, 840 (Tex. 1994). It is a

qualified privilege that can be pierced in judicial proceedings when a party makes

the condition a part of its claim or defense.13 In fact, a number of exceptions, most

13 See TEX. HEALTH & SAFETY CODE ANN. § 611.006(a)(11). See also TEX. R. EVID. 510 (“If any party relies on the patient's physical, mental, or emotional condition as a part of the party's claim or defense and the communication or record is relevant to that condition.).

31 commonly the patient-litigant exception, limits the scope of the privilege. Ramirez

at 840. “Additionally, a party may not assert one of the privileges in order to

withhold ‘evidence which would materially weaken or defeat, the asserting party's

claims.’” Id.. Such a prohibited application of the privilege is an “offensive use.” Id.

Whether the mental health condition is part of a party’s claim or defense is

determined from the face of the pleadings and then, if necessary, from the allegedly

privileged records. See In re Richardson Motorsports, Ltd., 690 S.W.3d 42, 56 (Tex.

2024) (orig. proceeding).

The patient-litigant exception is met in this case. The issue before the

Division is whether Ms. Smith’s death was a result of the compensable injury

sustained on April 10, 2023. (SCR Exhibits B, C, D, E and F) Mr. Heiliger placed

Ms. Smith’s mental condition in controversy by asserting there is a causal link

between Ms. Smith’s stressful work and her death. (SCR Exhibits B, C, D, E and F)

Mr. Heiliger obtained a letter from Ms. Smith’s psychiatrist, Dr. Marcellus, stating

that he treated Ms. Smith for a stress-related disorder. (SCR Exhibits B, C, D, E and

F) By Mr. Heiliger’s raising stress as a cause of Ms. Smith’s death, Dr. Marcellus’

records concerning her complaints and sources of stress became relevant to and will

affect the resolution of whether she died within the course and scope of her

employment.

32 Mr. Heiliger has presented no evidence that there has been or will be an

improper disclosure and he cannot because this disclosure is authorized by TEX.

HEALTH & SAFETY CODE § 611.006(a)(11) and the Texas Rules of Evidence.

3. NO PROBABLE, IMMINENT, OR IRREPARABLE INJURY EXISTS

There is no probable, imminent or irreparable injury looming or even lurking

in the vicinity of Mr. Heiliger at this stage. All of his rights, all of his due process

are protected and can be handled at the Division level. The Texas Labor Code has

given Mr. Heiliger a road map, the vehicle and the keys to get there. He simply

refuses to follow procedure and has instead hijacked the legal system.

The Labor Code, the Rules promulgated by the Division and the Government

Code, supra, all lay out the procedure for obtaining discovery and enforcing a

discovery subpoena during a workers’ compensation dispute. Mr. Heiliger and the

District Court have veered off the required route the Legislature has mandated. The

facts of whether the Deposition Subpoena should issue or not are not ripe for judicial

review. A district court is the place to argue whether the Deposition Subpoena

should be compelled, but there is only one way to get to the District Court at this

stage and that is through Government Code 2001.201. Only the ALJ or the party

seeking to compel a subpoena at the Division level can invoke the procedure in

Government Code § 2001.201 to compel a subpoena at the Division level. This can

33 only be done after the target of the subpoena or the person affected by it, in this case

Mr. Heiliger, has indicated noncompliance or sought protection. Mr. Heiliger has

done nothing at the Division level to allow Government Code § 2001.201 to be

invoked. He has not objected to the live Deposition Subpoena. He has not filed a

motion to quash the live Deposition Subpoena. He has not sought a protective order

from the live Deposition Subpoena. Instead Mr. Heiliger has improperly sought

judicial review before obtaining a final decision from the Division.

The policy to require a party to be aggrieved of a final decision of the Division

of Workers’ Compensation is to ensure disputes are resolved quickly and

objectively. Allowing Mr. Heiliger to seek redress in district court deprives the

Division of Workers’ Compensation the chance to resolve disputed fact issues and

apply its statutorily created authority, thereby distorting the balances struck in the

Texas Workers’ Compensation Act and frustrating the Legislature's intent. Further,

an extra-statutory cause of action builds additional costs into the system by

increasing litigation expenses to employees, insurers, and employers.

Allowing the administrative process to be circumvented as Mr. Heiliger has

attempted would result in claimants running to district court at every adverse

interlocutory order with potential conflicting results in 254 counties. The orderly

administration of justice would become unpredictable and unreliable destroying the

right to a fair and equitable adjudication at the administrative level. Not to mention

34 the cost to injured workers’ and their families, as well as the drawn out legal process

before they could obtain relief.

Because neither the Division nor Fort Bend County has sought to enforce the

Deposition Subpoena order under Government Code § 2001.201, and since there is

no provision for the target of the subpoena or party affected by the subpoena to

challenge the subpoena in district court until enforcement is sought in district court,

the District Court has erred in asserting jurisdiction. Unless or until the ALJ or Fort

Bend County moves to enforce the Deposition Subpoena, Mr. Heiliger has suffered

no harm and the District Court has exceeded its authority to step in.

Further there is no harm because Fort Bend County argued before the District

Court that the records will not be publicly disclosed. The Act prohibits the public

disclosure of information derived from a workers’ compensation claim unless a

claim has been finally adjudicated. See Tex. Lab. Code § 402.083 ((a) Information

in or derived from a claim file regarding an employee is confidential and may not be

disclosed by the division except as provided by this subtitle or other law. (b)

Information concerning an employee who has been finally adjudicated of wrongfully

obtaining payment under Section 415.008 is not confidential.) Further, information

relating to a claim that is confidential under this subtitle remains confidential when

released to any person, except when used in court for the purposes of an appeal. See

35 Tex. Lab. Code § 402.086(a). Fort Bend County has never opposed an in camera

inspection of Ms. Smith’s mental records. In fact, Fort Bend County has protected

the limited records it does possess by filing them as sensitive data at the trial court

and appellate levels.

CONCLUSION

The District Court erred enjoining discovery at an administrative contested

case hearing properly before the Texas Department of Insurance – Division of

Workers’ Compensation. Appellee has not shown an irreparable, imminent injury

exists, nor has he shown a viable cause of action exists for the District Court to

overstep its rightful bounds. The Texas Legislature, in its wisdom, saw fit to assign

this matter to a specialized body with the tools, training and time to handle it

properly. The Division of Workers’ Compensation was created to take the load off

the courts, to apply its focused knowledge to claims of workplace injuries without

dragging hard-working folks through long-winded litigation. Parties like Appellee,

who seek the end result without the journey, must mind the rules of the road or else

the whole system runs off the rails. The Legislative scheme for conducting worker’s

compensation contested case hearings specifically sets out the process for the

issuance and enforcement of discovery, including subpoenas.

36 Fort Bend County beseeches this Court to allow the proper administrative

tribunal to carry out its mandated duty without further interference.

PRAYER

WHEREFORE, ARGUMENT AND AUTHORITY CONSIDERED, the

Appellant Fort Bend County respectfully requests the Court to reverse the April 2,

2025, Order Granting Temporary Injunction and Setting Trial on Merits and render

judgment that this case be dismissed and for such further and other relief to which it

may be entitled.

Respectfully submitted,

DEAN G. PAPPAS LAW FIRM, PLLC

By:

Dean G. Pappas State Bar No. 15454375 dpappas@dgplawfirm.com Mary M. Markantonis State Bar No.12986800 mmarkantonis@dgplawfirm.com Lisa M. Teachey State Bar No. 24056416 lteachey@dgplawfirm.com Marilyn J. Allen State Bar No. 24025225 mallen@dgplawfirm.com 8588 Katy Freeway, Suite 100 Houston, Texas 77024 713-914-6200-Telephone 713-914-6201-Facsimile ATTORNEYS FOR APPELLANT FORT BEND COUNTY 37 CERTIFICATE OF COMPLIANCE

This brief complies with the length limitations of TEX. R. APP. P. 9.4(i)(3) because this petition consists of 8,759 words as determined by Microsoft Word Count, excluding the parts of the petition exempted by TEX. R. APP. P. 9.4(i)(1).

__________________________ Lisa M. Teachey

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of this Appellant’s Brief, including any and all attachments, was served on counsel of record by using the Court’s e- filing system on the 12th day of June, 2025, addressed as follows:

Via eFile through the electronic filing manager Russell L. Morris Pablo A. Franco Andrew W. Bruce McBryde Franco, PLLC 11000 Richmond Avenue, Suite 350 Houston, Texas 77042

Attorneys for Appellee Joshua Heiliger, Individually and on Behalf of the Estate of Lauren Brittane Smith, Deceased, and on Behalf of Death Benefits Beneficiaries Joshua David Heiliger and Emma Destiny Heiliger, Real Party in Interest

Via eFile through the electronic filing manager Ken Paxton Brent Webster Ralph Molina James Lloyd Ernest C. Garcia Sherlyn Harper Office of the Attorney General of Texas 808 Travis Street, Suite 1520 Houston, Texas 77002 38 James Z. Brazell Assistant Attorney General, Administrative Law Division P.O. Box 12548, Capital Station Austin, Texas 78711-2548

Attorneys for Appellant Francesca Okonkwo, Administrative Law Judge in her official capacity, Real Party in Interest

Via eFile through the electronic filing manager LaVerne Chang 511 Lovett Blvd. Houston, Texas 77006

Attorney for Greater Houston Psychiatric Associates, PLLC, Real Party in Interest

__________________________ Lisa M. Teachey

TAB A: April 2, 2025, Order denying Fort Bend County’s Plea to the Jurisdiction and Motion to Dismiss (CR611)

TAB B: April 2, 2025, Order granting temporary injunction and setting case for trial on the merits (CR606-610)

TAB C: January 27, 2025, Division Deposition Subpoena of Ms. Smith’s mental records (5RR2);

TAB D: Division - Contested Case Hearing set notice for August 7, 2025

TAB E: Division - Order vacating the September 19, 2024, Subpoena and Vacating the Subsequent Order to Compel

TAB F: Division - Fort Bend County’s September 9, 2024, Amended Opposed Motion to Subpoena Medical Records from Dr. John Marcellus;

TAB G: Division - Claimants’ September 9, 2024, Objection to Carrier’s Opposed Motion to Subpoena mental Health Records from Dr. John Marcellu

TAB H: Division - September 19, 2024, Order on Motion to Subpoena Medical Records

TAB I: Petitioner’s Verified Original Petition for Declaratory Judgment, Application for Temporary Restraining Order, Temporary Injunction, and Permanent Injunction filed November 7, 2024

TAB J: Texas Government Code § 2001.201

TAB K: Texas Health and Safety Code, Chapter 611

TAB L: Texas Rule of Evidence 510

TAB M: Texas Labor Code § 402.001

TAB N: Texas Labor Code § 402.00114 40 TAB O: Texas Labor Code § 410.002

TAB P: Texas Labor Code § 410.003

TAB Q: Texas Labor Code § 410.157

TAB R: Texas Labor Code § 410.158

TAB S: Texas Labor Code § 410.162

TAB T: Texas Labor Code § 410.163

TAB U: Texas Labor Code § 410.165

TAB V: Texas Labor Code § 410.251

TAB W: 28 Tex. Admin. Code § 141.4

TAB X: 28 Tex. Admin. Code § 142.1

TAB Y: 28 Tex. Admin. Code § 142.2

TAB Z: 28 Tex. Admin. Code § 142.12

TAB AA: 28 Tex. Admin. Code § 142.13

TAB BB: Texas Labor Code § 406.034

TAB CC: Texas Labor Code § 402.083

TAB DD: Texas Labor Code § 402.086

TAB EE: Texas Labor Code § 415.008

41 TAB A TAB B TAB C TAB D TAB E TAB F TAB G TAB H TAB I TAB J TAB K TAB L TAB M TAB N TAB O TAB P TAB Q TAB R TAB S TAB T TAB U TAB V TAB W TAB X TAB Y TAB Z TAB AA TAB BB TAB CC TAB DD TAB EE Automated Certificate of eService This automated certificate of service was created by the efiling system. The filer served this document via email generated by the efiling system on the date and to the persons listed below. The rules governing certificates of service have not changed. Filers must still provide a certificate of service that complies with all applicable rules.

Hope Furlow on behalf of Lisa Teachey Bar No. 24056416 hfurlow@dgplawfirm.com Envelope ID: 101959086 Filing Code Description: Other Brief Filing Description: Appellant Fort Bend County's Brief Status as of 6/12/2025 4:45 PM CST

Case Contacts

Name BarNumber Email TimestampSubmitted Status

Lisa Teachey 24056416 lteachey@dgplawfirm.com 6/12/2025 3:59:59 PM SENT

Laverne Chang 783819 chang@cardwellchang.com 6/12/2025 3:59:59 PM SENT

Marilyn Allen 24025225 mallen@dgplawfirm.com 6/12/2025 3:59:59 PM SENT

Mary Markantonis 12986800 mmarkantonis@dgplawfirm.com 6/12/2025 3:59:59 PM SENT

Dean Pappas 15454375 dpappas@dgplawfirm.com 6/12/2025 3:59:59 PM SENT

Andrew Bruce 24113627 serv.andrew@mf-txlaw.com 6/12/2025 3:59:59 PM SENT

Russell Morris 24099150 serv.russell@mf-txlaw.com 6/12/2025 3:59:59 PM SENT

Hope Burnett-Furlow hfurlow@dgplawfirm.com 6/12/2025 3:59:59 PM SENT

Pablo Franco 24121625 serv.pablo@mf-txlaw.com 6/12/2025 3:59:59 PM SENT

Catherine Hughes catherine.hughes@oag.texas.gov 6/12/2025 3:59:59 PM SENT

Sherlyn Harper Sherlyn.Harper@oag.texas.gov 6/12/2025 3:59:59 PM SENT

James Z.Brazell james.brazell@oag.texas.gov 6/12/2025 3:59:59 PM SENT

Meridith Fischer Meridith.Fischer@oag.texas.gov 6/12/2025 3:59:59 PM SENT