In Re Fort Bend County v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: June 12, 2025
• Docket: 15-25-00102-CV
• Status: Published

Opinion

ACCEPTED 15-25-00102-CV FIFTEENTH COURT OF APPEALS AUSTIN, TEXAS 6/12/2025 3:47 PM NO. 15-25-00061-CV CHRISTOPHER A. PRINE CLERK FILED IN IN THE COURT OF APPEALS 15th COURT OF APPEALS AUSTIN, TEXAS FOR THE FIFTEENTH JUDICIAL DISTRICT OF TEXAS AT AUSTIN, TEXAS 6/12/2025 3:47:22 PM CHRISTOPHER A. PRINE Clerk IN RE FORT BEND COUNTY, Relator,

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

PETITION FOR WRIT OF MANDAMUS

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 G. Allen Texas Bar No. 24025225 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

i IDENTITY OF PARTIES AND COUNSEL

Relator: 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

Real Party in Interest: 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

Real Party in Interest: 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 Respondent: The Honorable Kristen B. Hawkins 11th Judicial District Court Harris County, Texas Harris County Civil Courthouse 201 Caroline, 9th Floor Houston, Texas 77002 Telephone: 832-927-2600

iv TABLE OF CONTENTS

IDENTITY OF THE PARTIES & COUNSEL………………………………...……ii TABLE OF CONTENTS………………………………………………………..….v INDEX OF AUTHORITIES…………………………………………………….…vi STATEMENT REGARDING MANDAMUS RECORD……………………...…viii PARTY DESIGNATIONS BEFORE EACH TRIBUNAL………………………...ix STATEMENT OF CASE……………………………………………………….…..x STATEMENT OF JURISDICTION……………………………………...………..xi STATEMENT OF ISSUE PRESENTED………………………………….……....xii Does a district court have jurisdiction to hear a temporary restraining order, temporary injunction, permanent injunction to determine the validity of a subpoena issued by an administrative law judge during a contested case hearing before the Division of Workers’ Compensation when no objection, motion to quash or protective order is sought to forestall the subpoena which would trigger the exclusive manner for the enforcement of a Division subpoena as mandated by the Texas Labor Code and Texas Government Code?

STATEMENT OF FACTS…………………………………………………..………1 SUMMARY OF ARGUMENT…………………………………………….……….8 ARGUMENT AND AUTHORITY……………………………………………….10 PRAYER ………………………………………………………………….………27 CERTIFICATES OF COMPLIANCE………………………..……..…….……….29 CERTIFICATES OF SERVICE………………………..……..…….……………..30 APPENDIX ………………………………………………………….……………32

v INDEX OF AUTHORITIES

Cases American Motorists Ins. Co. v. Fodge, 63 S.W.3d 801 (Tex. 2001) ............................................ 18 Berrelez v. Mesquite Logistics USA, Inc., 562 S.W.3d 69 (Tex. App.—San Antonio 2018, no pet.) ........................................................................................................................................... 19 Electric Reliability Council of Texas, Inc. v. Panda Power Generation Infrastructure Fund, LLC, 619 S.W.3d 628 (Tex. 2021) ..................................................................................................... 10 Henry v. Dillard Dept. Stores, Inc., 70 S.W.3d 808 (Tex. 2002) ................................................. 20 In re Crawford & Co., 458 S.W.3d 920 (Tex. 2015) ...................................................................... 18 In re Entergy Corp., 142 S.W.3d 316 (Tex. 2004) (orig. proceeding) .................................. passim In re Estate of Hutchins, 391 S.W.3d 578 (Tex. App. Dallas 2012, orig. proceeding) ................ 11 In re Garza, 544 S.W.3d 836 (Tex. 2018) .................................................................................... 10 In re GlobalSanteFe Corp., 275 S.W.3d 477 (Tex. 2008) (orig. proceeding) .............................. 11 In re H.E.B. Grocery Company, L.P., 492 S.W.3d 300 (Tex. 2016) (orig. proceeding) .............. 11 In re J.B. Hunt Transport, Inc., 492 S.W.3d 287 (Tex. 2016) (orig. proceeding) ........................ 10 In re Kappmeyer, 668 S.W.3d 651 (Tex. 2023) (orig. proceeding) .................................. 10, 11, 12 In re Metro. Transit Auth., 334 S.W.3d 806 (Tex. App.—Houston [1st Dist.] 2011, orig. proceeding) ................................................................................................................... 15, 16, 20 In re Oncor Electric Delivery Co. LLC, 694 S.W.3d 789 (Tex. App.—Houston [14th Dist.] April 2, 2024, orig. proceeding [mand. filed]) ................................................................................... 12 In re Prentis, 702 S.W. 3d 762 (Tex. App.—Houston [1st Dist.] 2024, no pet.) .................... 19, 20 In re Prentis, 702 S.W.3d 762 (Tex. App.—Houston [1st Dist.] 2024, no pet.) .................... 15, 16 In re Prudential Ins. Co. of America, 148 S.W.3d 124 (Tex. 2004) (orig. proceeding) ... 10, 11, 12 In re Riley, 339 S.W.3d 216 (Tex. App. Waco 2011, orig. proceeding) ...................................... 11 In re Rogers, 690 S.W.3d 296 (Tex. 2024) (orig. proceeding) ..................................................... 10 In re Spooner, 333 S.W.3d 759 (Tex. App. Houston 1st Dist. 2010, orig. proceeding) ............... 12 In re State, 355 S.W.3d 611 (Tex. 2011) (orig. proceeding) ........................................................ 11 In re Tyler Asphalt & Gravel Co., Inc., 107 S.W.3d 832 (Tex. App.—Houston [14th Dist.] 2003, orig. proceeding) ....................................................................................................................... 20 In re United Services Auto. Ass'n, 307 S.W.3d 299 (Tex. 2010) (orig. proceeding) .................... 11 In re Warrior Energy Services Corp., 599 S.W.3d 110 (Tex. App. Houston 14th Dist. 2020, orig. proceeding) ............................................................................................................................... 11 Mayhew v. Town of Sunnyvale, 964 S.W.2d 922 (Tex. 1998)................................................... 17, 18 Morales v. Liberty Mut. Ins. Co., 241 S.W.3d 514 (Tex. 2007) ................................................... 20 Producers Assistance Corp. v. Employers Ins. of Wausau, 934 S.W.2d 796 (Tex. App.—Houston [1st Dist.] 1996, no writ) ............................................................................................................. 18 Pub. Util. Comm'n of Tex. v. City Pub. Serv. Bd. of San Antonio, 53 S.W.3d 310 (Tex. 2001)... 21 Liberty Mut. Ins. Co. v. Adcock, 412 S.W. 3d 492 (Tex. 2013).................................................... 21 State Bar of Tex. v. Jefferson, 942 S.W.2d 575 (Tex.1997) ......................................................... 13 Texas Ass’n of Business v. Texas Air Control Bd., 852 S.W.2d 440 (Tex. 1993) ............................ 17 Statutes Texas Government Code § 2001.201 ............................................................................. 9, 23, 25, 26 Texas Government Code § 22.220(d)(1)(A)-(O) ........................................................................... xi Texas Government Code § 22.221................................................................................................. xi

vi Texas Health & Safety Code § 611................................................................................... 15, 23, 24 Texas Labor Code § 402.001 ......................................................................................................... 18 Texas Labor Code § 402.00114 .................................................................................................... 18 Texas Labor Code § 408.001 ........................................................................................................ 19 Texas Labor Code § 410.002 ........................................................................................................ 16 Texas Labor Code § 410.003 .................................................................................................. 16, 22 Texas Labor Code § 410.157 .................................................................................................. 21, 22 Texas Labor Code § 410.158 ............................................................................................ 16, 21, 22 Texas Labor Code § 410.162 .................................................................................................. 21, 22 Texas Labor Code § 410.163 .................................................................................................. 19, 20 Texas Labor Code § 410.165 .................................................................................................. 16, 21 Texas Labor Code § 410.251 ........................................................................................................ 16 Rules 28 Tex. Admin. Code § 141.4 ....................................................................................................... 22 28 Tex. Admin. Code § 142.1 ................................................................................................. 16, 23 28 Tex. Admin. Code § 142.12 ............................................................................................... 16, 22 28 Tex. Admin. Code § 142.13 ............................................................................................... 16, 22 28 Tex. Admin. Code § 142.2 ................................................................................................. 16, 22 Texas Rule of Evidence 510 ......................................................................................................... 23 Texas Rules of Judicial Administration Rule 15.2 ........................................................................ xi Constitutional Provisions Texas Constitution Article V, Section 6 ........................................................................................ xi

vii STATEMENT REGARDING MANDAMUS RECORD

The Clerk’s Record and the Reporter’s Record for this Petition for Writ of

Mandamus are the same as the those in the appeals under this Court of Appeals’

Number 15-25-00061-CV.

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].

viii 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

ix STATEMENT OF CASE

Nature of Case: Mr. Heiliger is seeking workers’ compensation death benefits from Fort Bend County in an administrative contested case hearing pending before the Texas Department of Workers’ Compensation. Mr. Heiliger’s wife, Lauren Smith, was an EMT with Fort Bend County who died at home. At the contested case hearing, the Administrative Law Judge granted Fort Bend’s request to subpoena records relevant to Mr. Heiliger’s reliance on medical opinions that stress was a factor in the death. Mr. Heiliger petitioned a district court to prohibit the discovery at the administrative hearing. Fort Bend appeared as Real Party in Interest.

Trial Court: The 11th District Court of Harris County, Texas; The Honorable Kristen B. Hawkins, presiding.

Trial Court Mr. Heiliger filed in the district court a declaratory Proceeding: judgment, a writ of mandamus, and for injunctive relief. Administrative Law Judge Okonkwo, as Respondent in the District Court, filed a Plea to the Jurisdiction. Fort Bend County appeared as Real Party in Interest and filed a General Denial, Plea to the Jurisdiction and Motion to Dismiss.

Respondent’s The District Court granted a temporary injunction Action: prohibiting disclosure of the records; set a trial on the merits; denied both pleas to the jurisdiction; and denied Fort Bend County’s motion to dismiss.

x STATEMENT OF JURISDICTION

This Court has the power to grant the writ of mandamus sought in this petition

under Article V, Section 6 of the Texas Constitution and Texas Government Code §

22.221 because this Court has exclusive intermediate appellate jurisdiction over

matters arising out of or related to a civil case brought by or against the state or a

board, commission, department, office, or other agency in the executive branch of

the state government and no exception exists under § 22.220(d)(1) (A) through (O).

This Court accepted Relator’s request to consolidate its appeal in this matter

pursuant to Rule 15.2 of the Texas Rules of Judicial Administration; Relator’s

request for extraordinary relief stems from an order that arises 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 OF ISSUE PRESENTED

Does a district court have jurisdiction to hear a temporary restraining order, temporary injunction, permanent injunction to determine the validity of a subpoena issued by an administrative law judge during a contested case hearing before the Division of Workers’ Compensation when no objection, motion to quash or protective order is sought to forestall the subpoena which would trigger the exclusive manner for the enforcement of a Division subpoena as mandated by the Texas Labor Code and Texas Government Code?

xii STATEMENT OF THE FACTS

Relator Fort Bend County1 is seeking mandamus relief from an order denying

its Plea to the Jurisdiction regarding a temporary injunction a Harris County District

Court entered that prohibits the discovery of records in an administrative dispute

resolution proceeding to determine death benefits in a workers’ compensation

contested case hearing. (CR611)

This workers’ compensation dispute currently is pending before the Texas

Department of Insurance – Division of Workers’ Compensation (Division) in the

administrative dispute resolution process as required by the Texas Workers’

Compensation Act. (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 Real Party in

Interest 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

1 Because of the multifarious designations of the parties in each level of this controversy, Relator will refer to each party by name. See Party Designations in Each Tribunal, p. ix. 2 See Appendix D which is a sworn copy from the Relator’s files of DWC Docket No. 24229142-01- CC-HE. 1 for Fort Bend County EMS. (SCR 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 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. (Appendix F)3 Mr. Heiliger objected to

the issuance of the subpoena. (Appendix G)4 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

3 See Appendix F which is a sworn copy from the Relator’s files of DWC Docket No. 24229142-01- CC-HE. 4 See Appendix G which is a sworn copy from the Relator’s files of DWC Docket No. 24229142-01- CC-HE.

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

(Appendix H)5

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. (Appendix

I)6 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 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)

5 See Appendix H which is a sworn copy from the Relator’s files of DWC Docket No. 24229142-01- CC-HE. 6 See Appendix I which is a sworn copy from the Relator’s files of Cause No. 2024-78536.

3 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. (3RR1-33) 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 – 31:19)

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. (4RR15:17 – 17:21) Fort Bend

County attempted on numerous occasions to confer with Mr. Heiliger’s counsel via

telephone to no avail. (CR423 of 419 – 442) 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.

(4RR15:17 – 17:21) 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. (4RR16:5-

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

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

Compensation.7 (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. (CR

387-399) 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, Mr.

Heiliger filed no objection. Administrative Law Judge Okonkwo granted Fort Bend

County’s Deposition Subpoena of Dr. Marcellus on January 27, 2025. (CR401-402,

5RR2, Appendix C)

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

7 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 Relator’s files of DWC Docket No. 24229142-01-CC-HE.

5 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

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 on 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 Jurisdiction,8

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

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

the matter for December 1, 2025. (1RR et passim and CR604-613)

Fort Bend County now seeks mandamus relief from the order denying its Plea

to the Jurisdiction because the District Court does not have subject matter

jurisdiction over discovery subpoenas issued by a Division administrative law judge

until the administrative law judge or the party requesting the subpoena seeks to

enforce compliance with the subpoena under the process mandated by Government

Code § 2001.201.

7 SUMMARY OF THE ARGUMENT

The Trial Court has exceeded its judicial authority by impermissibly interfering

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

Compensation. In denying Fort Bend’s Plea to the Jurisdiction and enjoining the ALJ’s

deposition subpoena, the District Court is allowing the claimant in this workers’

compensation dispute to forego the correct legal process at the administrative level in

clear violation of the Texas Legislature’s statutory scheme for conducting workers’

compensation disputes. 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 (“Act”) specifically provides the

process to enforce discovery subpoenas during a workers' compensation dispute. The

prescribed statutory provisions for enforcing a subpoena at a workers’ compensation

contested case hearing mandate that the ALJ or the party requesting the subpoena must

seek a district court’s permission to enforce a subpoena. A district court’s subject

matter jurisdiction over administrative hearing subpoenas is not and cannot be invoked

solely by the person subject to the subpoena or any other person affected by the

subpoena – such as Mr. Heiliger. The Act requires the person affected by the

subpoena to challenge the subpoena by seeking protection at the administrative level.

8 Once the challenge is made to the subpoena, the Act requires the ALJ or the party

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

district 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’s subject matter jurisdiction has not been properly engaged.

9 ARGUMENT AND AUTHORITY

Mandamus Authority

As a general rule, appellate courts will not interfere with the exercise of a trial

court's discretion in making incidental rulings. In re Entergy Corp., 142 S.W.3d 316,

320 (Tex. 2004) (orig. proceeding). Because mandamus is an extraordinary remedy,

the writ may only issue to correct a clear abuse of discretion and when there is no

other adequate legal remedy by appeal. In re Rogers, 690 S.W.3d 296 (Tex. 2024)

(orig. proceeding). In re Kappmeyer, 668 S.W.3d 651, 654 (Tex. 2023) (orig.

proceeding). In the absence of a void order, a party must generally demonstrate that

it has no adequate remedy on appeal in a mandamus proceeding. Id.; Electric

Reliability Council of Texas, Inc. v. Panda Power Generation Infrastructure Fund,

LLC, 619 S.W.3d 628, 640 (Tex. 2021).

Whether the remedy on appeal is “adequate,” has no comprehensive

definition. Adequacy depends largely on the circumstances presented and “is better

guided by general principles than by simple rules.” Kappmeyer at 659; In re

Prudential Ins. Co. of America, 148 S.W.3d 124, 137 (Tex. 2004) (orig. proceeding).

Adequacy is simply a proxy for the careful balance of considerations that determine

when appellate courts will use original mandamus proceedings to review the actions

of lower courts. In re Garza, 544 S.W.3d 836, 840 (Tex. 2018) (orig. proceeding);

In re J.B. Hunt Transport, Inc., 492 S.W.3d 287, 298 (Tex. 2016) (orig. proceeding);

10 In re H.E.B. Grocery Company, L.P., 492 S.W.3d 300, 302 (Tex. 2016) (orig.

proceeding); In re State, 355 S.W.3d 611, 614-15 (Tex. 2011) (orig. proceeding).

In deciding whether the benefits of mandamus outweigh any detriments, the

reviewing court must weigh public and private interests, recognizing that categorical

determinations of adequacy must give way to the facts involved in each case. In re

United Services Auto. Ass'n, 307 S.W.3d 299, 313 (Tex. 2010) (orig. proceeding);

In re Warrior Energy Services Corp., 599 S.W.3d 110, 118 (Tex. App. Houston 14th

Dist. 2020, orig. proceeding). Also, in evaluating benefits and detriments, the Texas

Supreme Court considers whether mandamus relief will safeguard important

substantive and procedural rights from impairment or loss. In re GlobalSanteFe

Corp., 275 S.W.3d 477, 483 (Tex. 2008) (orig. proceeding); Warrior at 118. In

addition to impairment of rights, the Supreme Court considers whether mandamus

will allow the appellate courts to give needed and helpful direction to the law that

would otherwise prove elusive in appeals from final judgments. GlobalSanteFe at

483.

An appellate remedy is not inadequate merely because it may involve more

expense or delay than obtaining an extraordinary writ. Kappmeyer at 659; Prudential

at 136; Entergy Corp. at 320; In re Estate of Hutchins, 391 S.W.3d 578, 584 (Tex.

App. Dallas 2012, orig. proceeding); In re Riley, 339 S.W.3d 216 (Tex. App. Waco

2011, orig. proceeding). However, mandamus relief may be appropriate if the

11 challenged trial court order drastically skews the procedural dynamics of the case,

Kappmeyer at 659; Prudential Ins. at 136-37.

Appeal may be adequate for a particular party, but it is no remedy at all for

the irreversible waste of judicial and public resources that would be required in some

cases if mandamus does not issue. Kappmeyer at 659; In re State at 614-15;

Prudential at 136; In re Oncor Electric Delivery Co. LLC, 694 S.W.3d 789, 803

(Tex. App.—Houston [14th Dist.] April 2, 2024, orig. proceeding [mand. filed]); In

re Spooner, 333 S.W.3d 759, 763 (Tex. App. Houston 1st Dist. 2010, orig.

proceeding).

The impact on the judicial system may be sufficient to cause the Court to grant

mandamus review because the judicial appropriation of state agency authority would

be a clear disruption of the “orderly processes of government.” Entergy at 321.

In Entergy, the Texas Supreme Court allowed a party to use a writ of

mandamus even though there was a remedy available by appeal because a clear

disruption of the orderly process of government was at stake. Id. at 320-321. Several

parties sued Entergy over a merger agreement. Id. at 318-320. Entergy filed a

Motion to Transfer Venue, a Motion to Abate and a Motion to Dismiss for Want of

Subject Matter Jurisdiction, arguing that the Public Utility Commission of Texas

(“PUC”) had exclusive jurisdiction over the dispute at issue. Id. at 321. The trial

Court denied Entergy’s motions. Id. at 320. Entergy sought a writ of mandamus but

12 the Court of Appeals denied relief. Id. Even though Entergy’s jurisdictional

challenge could be taken up on appeal after final judgment in the underlying lawsuit,

the Texas Supreme Court agreed to consider Entergy’s interlocutory writ of

mandamus to determine if the trial court had subject matter jurisdiction. Id. at 320.

The Supreme Court’s reasoning was that allowing the trial court to go forward if it

did not have subject matter jurisdiction would be an improper appropriation of state

agency authority. Id. at 321.

“The reluctance to issue extraordinary writs to correct incidental trial court

rulings can be traced to a desire to prevent parties from attempting to use the writ as

a substitute for an authorized appeal.” Id. at 320. “In certain circumstances, we have

recognized that incidental trial court rulings can be corrected by writ of mandamus.

. .” Id., citing State Bar of Tex. v. Jefferson, 942 S.W.2d 575, 575–76 (Tex.1997)

(granting mandamus relief after concluding that trial court was without jurisdiction

to issue temporary restraining order staying administrative grievance proceeding).

The Entergy Court found sometimes special, unique circumstances can exist

that mandate a higher court’s intervention, such as when a trial court “interferes with

the important legislatively mandated function and purpose” of a state agency. Id. at

321. And such interference requires a higher court interceding even when there is

another remedy by appeal. Id.

13 “In short, if the PUC has exclusive jurisdiction in this dispute, the judicial

appropriation of state agency authority would be a clear disruption of the ‘orderly

processes of government,’” the Court found. Id. “This disruption, coupled with the

hardship imposed on Entergy by a postponed appellate review, warrants an

exception to our general proscription against using mandamus to correct incidental

trial court rulings.” Id.

The Supreme Court ultimately took up the writ of mandamus, found that the

PUC did have exclusive jurisdiction, conditionally granted the writ, and directed the

trial court to vacate its orders and dismiss the lawsuit for lack of subject matter

jurisdiction. Id. at 324.

Mandamus Relief is Appropriate

Mandamus relief is appropriate in this case. This matter involves a discovery

issue at an administrative hearing pending before the Texas Division of Workers’

Compensation.

The ongoing contested case hearing9 before the Division is to determine

whether Ms. Smith died in the course and scope of her employment. The Division

has issued a Deposition Subpoena for Fort Bend to obtain the mental health records

9 DWC 24229142-01-CC-HE; Lauren Smith v. Fort Bend County; Texas Dept. Ins. – Div. Workers’ Comp. Houston East Field Office. 14 of Ms. Smith; the basis for seeking this evidence is that Mr. Heiliger is relying on

medical opinions that stress was a factor in Ms. Smith’s death. Mr. Heiliger

petitioned the District Court to not only step into the middle of the pending workers’

compensation administrative hearing, but he is asking the District Court to overrule

the Division’s discovery order before the Division has issued a final appealable

order.

Texas Law is clear that mental health records can be obtained by the Division

for the purposes of determining the weight and credibility to be given them in an

administrative proceeding. See TEX. HEALTH & SAFETY CODE ANN. §

611.006(a)(11) (Establishing the authorized disclosure of confidential mental health

records in a judicial or administrative proceeding if the court or agency has issued

an order or subpoena). (Appendix K). The Texas Workers’ Compensation Act10

vests exclusive jurisdiction in the Division to determine whether Ms. Smith’s death

is a compensable injury arising out of the course and scope of her employment,

subject to judicial review only after exhaustion of remedies. See In re Prentis, 702

S.W.3d 762, 769 (Tex. App.—Houston [1st Dist.] 2024, no pet.) (A party may not

seek judicial review under the Act without first exhausting his administrative

remedies. In re Metro. Transit Auth., 334 S.W.3d 806, 810–11 (Tex. App.—Houston

[1st Dist.] 2011, orig. proceeding). Failure to exhaust administrative remedies before

10 See Texas Labor Code, Title 5, Subtitle A. 15 filing suit renders a trial court without subject matter jurisdiction. Id. at 810. The

Act would be rendered meaningless if the Division was granted such jurisdiction to

determine workers’ compensation matters but not given the authority to issue orders

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

dispute resolution process under the Act. Course and scope of employment is an

element of compensability that necessarily encompasses the Division’s exclusive

jurisdiction to determine compensability. Prentis at 769. To that end the Texas

Legislature declared that the Division’s ALJ is the sole judge of the relevance and

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

evidence she considers to determine the elements of compensability. See Tex. Labor

Code Ann. § 410.165. (Appendix U)

Mr. Heiliger and the District Court have hijacked the administrative process

and without mandamus relief such interference would lead to a chaotic system of

adjudicating workplace injuries by authorizing parties to go back and forth between

the division and the judiciary on discovery issues authorized by the Act and would

be antithetical to the purpose of the workers’ compensation scheme that already

provides the procedure for challenging discovery at the administrative level. See

Tex. Lab. Code § 410.002, § 410.003, § 410.158, § 410.165; §410.251. See also 28

TAC § 142.1, § 142.2, § 142.12 and § 142.13.

16 The issue in this matter is not whether the mental health records are relevant,

but rather who decides relevancy at this stage. Fort Bend argues that the Division

does pursuant to the Legislative grant of authority in the Texas Labor Code. The

Trial Court’s invasion of the Texas Division of Workers’ Compensation’s exclusive

jurisdiction demands this Court to exercise its mandamus power under well-accepted

grounds for taking up a writ when agency jurisdiction is threatened.

Plea to the Jurisdiction Authority

Fort Bend County seeks mandamus relief because the District Court has

exceeded its subject matter jurisdiction by usurping the Texas Division of Workers’

Compensation exclusive jurisdiction to conduct administrative law hearings

involving workplace injuries.

Fort Bend County’s Plea to the Jurisdiction should be granted in all things

because the statutory process for workers’ compensation matters grants the Division

exclusive agency jurisdiction to be the sole authority to make the initial

determination whether Lauren Smith’s death is a compensable injury arising out of

the course and scope of her employment.

Subject matter jurisdiction cannot be waived by the parties and may be raised

for the first time at any point in the proceedings—even on appeal. See Mayhew v.

Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex. 1998); Texas Ass’n of Business v.

17 Texas Air Control Bd., 852 S.W.2d 440, 444-45 (Tex. 1993). It is a question of law

for the court. See Mayhew at 928. “A court lacking jurisdiction over a claim has no

discretion but to dismiss it.” Producers Assistance Corp. v. Employers Ins. of Wausau,

934 S.W.2d 796, 799 (Tex. App.—Houston [1st Dist.] 1996, no writ), emphasis added.

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 (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. (Appendix

M) 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. (Appendix N) 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

18 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 at 321-322. 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.] 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.

(Appendix T) 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)

19 allow the presentation of evidence by affidavit.” See Tex. Lab. Code § 410.163(a).

(Appendix T) 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). (Appendix T)

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

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

workers’ compensation benefits. In re Prentis, 702 S.W. 3d at 769, citing Henry v.

Dillard Dept. Stores, Inc., 70 S.W.3d 808, 809 (Tex. 2002); also citing Metro.

Transit Auth. at 810–11. “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).

20 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

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.

(Appendix R, S and U) 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.”). (Appendix Q)

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.

21 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 (Appendix P); o Texas Labor Code § 410.157 – Authorizes the promulgation of rules for conducting contested case hearings at the Division (Appendix Q); o Texas Labor Code § 410.158 – Authorizes limited discovery during the dispute resolution process at the Division (Appendix R); 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 (Appendix S) ; 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 (Appendix U);. 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 (Appendix W); 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 (Appendix Y); 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 (Appendix Z); 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 (Appendix AA); and

22 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 Government Code § 2001.201 relating to the enforcement of subpoenas (Appendix X).

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:

(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. (Appendix J)

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) (Appendix L) 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. 23 (Appendix K) 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) . (Appendix K)

Plea to the Jurisdiction Argument

The District Court’s exercise of jurisdiction in this matter undermines the

ALJ’s express grant of jurisdiction and clearly impedes Fort Bend County’s ability

to obtain evidence to determine whether Ms. Smith’s death is compensable under

Texas law.

The Texas Workers' Compensation Act vests the power to award

compensation benefits solely in the Texas Division of Workers' Compensation. A

Division ALJ’s decision is final unless it is appealed.

The Division and the ALJ are acting entirely within their grant of jurisdiction

and authority. 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.

24 Heiliger and the District Court have leap frogged over the steps that 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.

(Appendix J) 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 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

25 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

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 (Appendix J), 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.

26 Because Mr. Heiliger’s failure to exhaust administrative remedies is

jurisdictional, Fort Bend County asks this Court to grant its Plea to the Jurisdiction and

dissolve the temporary restraining order entered February 18, 2025. Fort Bend County

further asks this Court to dismiss Mr. Heiliger’s Fourth Amended Verified Original

Petition for Declaratory Judgment, Application for Writ of Mandamus, and request

for injunctive relief in its entirety for lack of subject matter jurisdiction.

PRAYER

WHEREFORE, ARGUMENT AND AUTHORITY CONSIDERED, the

Relator Fort Bend County respectfully requests the Court to grant this Writ of

Mandamus, direct The Honorable B. Hawkins to vacate her April 2, 2025, Order

Denying Fort Bend County’s Plea to the Jurisdiction and Motion to Dismiss and her

April 2, 2025, Order Granting Temporary Injunction and Setting Trial on Merits and

to dismiss this case for lack of subject matter jurisdiction and for such further and

other relief to which it may be entitled.

[Signature Block on Next Page]

27 Respectfully submitted,

DEAN G. PAPPAS LAW FIRM, PLLC By: /s/ Lisa M. Teachey Dean G. Pappas Texas Bar No. 15454375 dpappas@dgplawfirm.com Mary M. Markantonis Texas No.12986800 mmarkantonis@dgplawfirm.com Lisa M. Teachey Texas Bar No. 24056416 lteachey@dgplawfirm.com Marilyn J. Allen Texas Bar No. 24025225 mallen@dgplawfirm.com 8588 Katy Freeway, Suite 100 Houston, Texas 77024 Telephone: 713-914-6200 Telecopier: 713-914-6201 ATTORNEYS FOR RELATOR FORT BEND COUNTY

28 RULE 52.3(J) CERTIFICATION

In compliance with Rule 52.3(j) of the Texas Rules of Appellate Procedure, I certify that I have reviewed the Petition for Writ of Mandamus and have concluded that every factual statement in the petition is supported by competent evidence included in the record.

/s/ Lisa M. Teachey Lisa M. Teachey

CERTIFICATE OF COMPLIANCE

This brief complies with the length limitations of TEX. R. APP. P. 9.4(i)(3) because this petition consists of 6094 words as determined by Microsoft Word Count, excluding the parts of the petition exempted by TEX. R. APP. P. 9.4(i)(1).

29 CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of this Petition for Writ of Mandamus, including any and all attachments, was served on counsel of record by using the Court’s e-filing system and on The Honorable Kristen B. Hawkins via email to her Court Coordinator, Jackie Struss, on the 11th 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 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

James Z. Brazell Assistant Attorney General, Administrative Law Division P.O. Box 12548, Capital Station Austin, Texas 78711-2548

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

30 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

Via email to jackie_struss@justex.net The Honorable Kristen B. Hawkins c/o Jackie Struss, Coordinator jackie_struss@justex.net 11th Civil District Court Harris County Civil Courthouse 201 Caroline, 9th Floor Houston, Texas 77002

Respondent

31 APPENDIX

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

32 TAB N: Texas Labor Code § 402.00114

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

33 3/20/2025 12:40:46 PM Marilyn Burgess - District Clerk Harris County Envelope No: 98690123 By:OUGRAH,CHANCESAS Filed: 3/20/2025 12:40:46 PM Pgs-1 CAUSE NO: 2024-78536 ..J'JURY In re Joshua David Heiliger, § IN THE DISTRICT COURT o.~DISMY 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 § Petitioner, § § v. § § Texas Department of § 11 TH JUDICIAL DISTRICT Insurance; Francesca § Okonkwo, Administrative § Law Judge; Greater Houston § Psychiatric Associates, PLLC, § et al. § Respondents. § § § Fort Bend County, § HARRISCOUNTY,TEXAS Intervenor §

ORDER DENYING FORT BEND COUNTY'S PLEA TO THE JURISDICTION AND MOTION TO DISMISS

After considering Real Party in Interest's First Amended Plea to the Jurisdiction and

Motion to Dismiss, filed by Fort Bend County as a Real Party in Interest, any timely responses

and/or replies thereto, any argument of counsel, the Court finds is of opinion the Plea to the

Jurisdiction and Motion to Dismiss should be DENIED.

Signed on this the _ _ day of _ _ _ _ _, 2025.

PRESIDING JUDGE

1 611 TAB A 3/20/2025 3:29 PM Marilyn Burgess - District Clerk Harris County Envelope No. 98704339 By: Anais Aguirre Filed: 3/20/2025 3:29 PM Pgs-5 CAUSE NO: 2024-78536 In re Joshua David Heiliger, § IN THE DISTRICT COURT OFTINJX TRILX 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 § Petitioner, § § v. § § Texas Department of § 11 TH JUDICIAL DISTRICT Insurance; Francesca § Okonkwo, Administrative § Law Judge; Greater Houston § Psychiatric Associates, PLLC, § et al. § Respondents. § § § Fort Bend County, § HARRISCOUNTY,TEXAS Intervenor §

ORDER GRANTING TEMPORARY INJUNCTION AND SETTING TRIAL ON MERITS

TO THE HONORABLE JUDGE OF SAID COURT: On this day, the Court considered Petitioner's Fourth Amended Verified Original Petition

and Application Temporary Injunction ("Application") filed by Petitioner, 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.

Having considered the Application, the briefs filed by the parties, if any, and all evidence

presented at the hearing before the Court, as well as taking judicial notice of the Court's file, the

Court FINDS Petitioner's Verified Application for Temporary Injunction describes the alleged

harm complained about and establishes t the claimed harm is imminent, that it is irreparable, and

Page 1 of5 606 TAB B that Petitioner is without an adequate remedy at law, authorizing the Court to grant this order. The

Court finds clear evidence, absent immediate restraint, Petitioner will suffer imminent and

irreparable injury, and that these risks are imminent because the harm sought to be avoided relates

to the disclosure of privileged and confidential records.

Specifically, the Court finds that:

(1) Petitioner has asserted valid causes of action against Respondents;

(2) Petitioner has demonstrated a probable right to relief or recovery; and

(3) If not restrained, Respondents will, in all likelihood, continue their actions

against Petitioner, which will probably cause immediate and irreparable injury,

for which there is no adequate remedy at law, including the impairment or loss

of statutory and constitutional rights and privileges, and that remedy by appeal

would be ineffective because, once revealed, the documents, and information

contained therein, cannot be subsequently protected; and,

(4) That any resulting damages from an improper disclosure cannot be measured

by any pecuniary standard.

Accordingly, the Court finds it necessary to preserve the status quo and safeguard Petitioner

from imminent and irreparable harm by issuing this temporary injunction order against

Respondents.

IT IS FURTHER THEREFORE ORDERED that a temporary injunction issue, and shall

be effective and binding upon the signing of this order, without the need for issuance or service of

a writ of injunction, pending trial of this cause on the merits, or the dismissal of this lawsuit as a or further order of this Court result of this lawsuit as a result of settlement or releas~~estraining R~~-&"~~-&~\~,-afl-d

Page 2 ofS 607 Greater Houston Psychiatric Associates, PLLC, as well as any individuals or entities in active

concert or participation with them who receive actual notice of the Order by personal service or

otherwise, as follows:

(a) Disclosing, in any manner, Lauren Smith's mental health records containing privileged

communications, or the privileged communications contained therein, from Greater

Houston Psychiatric Associates, PLLC, and/or Dr. John Marcellus;

IT IS FURTHER ORDERED that, in lieu of requiring Petitioner to execute and file a new

bond for issuance of the temporary injunction, the $500.00 cash deposit filed by Petitioner and

accepted by the Harris County District Clerk on or about November 13, 2024, in connection with

the Temporary Restraining Orders signed in this lawsuit is hereby deemed extended in conformity

with the law to the period during which the Temporary Injunction is in effect.

IT IS FURTHER ORDERED that this injunction shall remain in force and effect until the tvi.10-week docket starting on further order of the Court. Trial on the merits in this matter is set for Dec. 1 , 2025 at

Signed: )/A ~I ,1 4/2/2025 fl,1 ...,./l./t,--Nt1-JJr,,.___

Page3 of5 608 ~pectfully submitted,

ls~sell L. Morris Russell¾;- . Morris State Bar o. 24099150 Andrew W.}\_ruce State Bar No.~ 13627 Pablo A Fran~~:\. State Bar No. 241~:5 MCBRYDEFRANC~~LLC 11000 Richmond Aven Suite 350 Houston, TX 77042 '\,_ (713) 223-7699 ' (512) 691-9072 [facsimile] '\_ serv.russell@mf-txlaw.com '

ATTORNEYS FOR PETITION~

Page 4 of5 609 CERTIFICATE OF SERVICE I certify that the foregoing document to which this certificate is attached was served, prepaid and/or facsimile and/or EFILE, on the date below upon each listed party or, if of record in this cause, that party's named attorney of record at the respective last known address as follows:

VIA E-FILE: Lisa M. Teachey Dean G. Pappas Law Firm, PLLC 8588 Katy Freeway, Suite 100 Houston, TX 77024 lteachey@dgplawfirm .com

ATTORNEY FOR INTERVENOR

VIA E-FILE: Sherlyn Harper Office of the Attorney General of Texas 808 Travis Street, #1520 Houston, TX 77002 Sherlyn.harper@oag.texas.gov

James Z. Brazell Assistant Attorney General, Administrative Law Division P.O. Box 12548, Capital Station Austin, TX 78711-2548 james@brazell@oag.texas.gov

ATTORNEYS FOR RESPONDENT, FRANCESCA OKONKWO, ADMINISTRATIVE LAW JUDGE

VIA E:FILE: LaVerne Chang Suzan Cardwell Cardwell & Chang, PLLC 511 Lovett Blvd. Houston, TX 77006 chang@cardwellchang.com cardwell@cardwellchang.com

ATTORNEYS FOR RESPONDENT, GREATER HOUSTON PSYCHIATRIC ASSOCIATES, PLLC

Date: March 20, 2025 Isl Russell Morris Russell Morris

Page 5 of5 610 Tlak dtpa1ltloa 1abpoe11a Is '8aald In Jlle name of the Slate of Tuu. Tot Any Sheriffor Constable oftho State of Texts or any other peraon authorized to letV6 eici .-are nbpoena wdor 28 TAC S142., 12 tnd Rule 176.S(a) of th, Teua Rutea of Civll Ptt>cedlJfe, l'n~ar. You tre liereby OC>m1nanded to aummon tho penon named below to appea, at the depositiOn of Dr~ John Marcellus or tho Custodian ofRecorda for Or. John Marcellus and to producollld permit inspection and copying of the documeota and/or tangible things In the poueaion, custody, or control of1ho peclOQ IWDIDoncd, by produoins the records to tho court reporter at tho depotitlon and/or delivering 1hom to the n,questing peraon at the address indicated,. • • Sammolled Pe'rlOa: Dr. loba Marct!l.1111 or tha Cutodlaa of Rleordl for Dr. Jou Marull-. ~ Acdoa: To appear for tho depo.sitioo amt produce and permit lnspect)on and copying~rdie destpated documents or tuglblo thlnp mtho possession, custody, or control of Ibo amnmoncd pc:naa • descn"becl berem. , Docmaats uatorTanpblo . 1"1dup Co be Prodacedl '. Medical Records from 01/01/20%0 to t&e 04/01Jl023 pertalalnc fo Lauren Smitb, (SS# ra-«»-4161;.pai,'ofBirth: 10/18/J.9~ Locatiollt Offico ofDr. Jol1Ji B. Marcellus. 4888 Loop C~~l D.rfye, Suito 510, Houston, TX'nOSJ.. Phone 713-346-lSSI. Fax: 713-346-1S77, .Dafead 'DIiie: febnwy 24, 2025, at 10:00 a.m. . ;,, ~· J.aara Sllllq&_v. Port Bend-.Cou11ty, Docket N~~ ~~i-U-Oi. in .thfTcxai ~ :~ ~ Division of Workva' Com1?9nsation 1

lltquestal By: _ MirilynJ;)J)en.Dcao~pP!SS'~ -;mn.iiS88KatyFreeway.SuitollOOHDIISbm. 'Tau 77024. Telephone; 713-914-6200 , SucclouNotic:e: Pailme :of any pcnon·to comply 'with' this deposition subpoona may mult ill IIDCtinos rJllder Section 415.021 of the Texas Labor Code. This dopositlon subpoena may be oufiac.ed 6rougb 1ho provisiDDI of Section 2p()l.WI oftbo Texas Oovommeut Codo. 1bia deposition.subpoena ii issued wider my official sfgnaturo on. January 27 • 2025.

e~>th&tt Adminimatlve.iaw Judge , •Toxas Dopattmcnt,of lnSU1'mlco , Division of Workors' Compensation Pl'OOf at Service

Jacb,wledgoieceipt of the above deposition subpoena ODchJI~ Z,~ to-.. S- , and~ ltl,fO dllt the:r;tion aubpo~ was oxocutcd ~y personal ICIV1 of. lniO and COITDCt copy OQ said ~OD~ "'"''i fO ltuif ,atJ•!C p.m,

TAB C Injured employee: LAUREN SMJTH • ~ -Division ofl~orkers' ll.l.:LJ. #: :Con1pensat1on PO f!9x.12osti', Mail t~e:·Hf\G IA!.lstiri, TX 7871 i I B00-252-7031 Jtdi.texas.gov/wc D\NC claimidocket 24229:1 42-Q.'4~-J;l.~,v Date of injury: 0.4/10/202'3 Employer: Fort Bend County ·. . t'(_t:\.;C ·' eo. ·.

lnsurance,carrier: Fort Bend County JUN 4 2025 li1surance·carrier claim #: 6000068 • Datei 6/4/202.S Dean ~.:Papp'$$ Law fir{ll,:PIJ.C

Fort Bend County 301 Jackson St Richmond, TX 77469-3108 Box Nbr;. 29

Your contested ca·se hearin.g is rescheduled. 1 The hearing that was seheduled with the Texas Department of Insurance, Divisiqn of Workers Comp.ensatio.n (DWC) for 6/9/2025, at lQ:30 .a,rn. is changed to the d:ate,. time, and pJace· b-elow.

Pl-ace: Division of Workers' Compensation

Your hearing will TD(-DIV. WOijK,ERS' CQIYIPENSATION be held at:' ·5425 POLK, SUITE 130 ELIAS RAMIREZ BUILDING. HOUSTON, TX 77023 (800) 252-7031

Ne.ed h.e·lp? • Go•to www.tdi.texas:gov/wc/employee/dispute.html to t~arn. more abm1t di-spute resolution. • lf'you want a.n attorney ana he.ed help finding one, call the State Bar of Texas at 800-252--969,0. • lf,you do 'n ot have an attorney and want help from an ombudsme;m, g.o to www.oi ec.texas.gov or call the:,Office of Injured Employee Co\lnsel at 8.66-a'93-64J2, ext. 441 ff6.

Qµestions? • Call 800-252--7031, Monday to Friday, 8 a.m. to 5 p.m., Central time. , Go td www.tdLtexas.gov/wc .to learn more about workers' compensation.

ORQS.-LCCH (RE!V. 05/2025) Pa_g.E! 1 of4

TAB D How to exchange your information with DWC and the other parties: You are responsible for sending your information securely. Whcit you send to DWC must a)so b~ sent to • the other parties.

Hearing .exhibits should be .s ent to DWC and·the other parties at least three days before the hearing.

Hearing exhibits may be sent to [)WC by: • Entail:: CCH. .Exhfbits@tdi.texas.gov (Use an underscor-e between CCH and Exhibits <)

• Fax: .512-.804-4011 Q Break,your document$ i.nt<;> separate sectio,:is of l·ess than AO pages each .. o Fax each section .separately with a cover page-. o Each cover page should include: • th~ DWC :daim number; and ■ the number of each section. For example, Section 1 of 3, Section 2 0f 3, and so on.

• Mail: Texas Department of Insurance, Divi•sion Of Workers! -Comp.ensation Hearings, Mciil Code HRG PO Box 12050 Austin, TX 78711-2050

• Se.cure File Transfer Protocol (SFTP): An SFTP account is a secure, electronic way foy upload your documents. • o lfyoU' want an SFTP actouht, contact DWC at _eFiling,..Help@tdi.texas.:gov o To learn more, go to www.tdi.texas-.gov/wc/carrier/efileoptions:html

D'Rb5-LCCH (Rev. ·0S/2025) Page-2 of 4 We •s~nt a copy of this. letter to:

Fort Bend. County MARILYN. JO ALLEN. "

30-1 Jackson St Dean G Pappas Law F'irm PLlC Richmond, TX 77469-3108 8588 Katy Fwy Ste 100 Houston, TX 77024-l.813

Russell L Morris EMMA D HEILIGER McBryde Franco PLLC 5804 SPRING RIVER LANE 11000 Richmond Ave Ste 350 FULSHEAR, TX.77441 Houston, TX 77042-6702

JOSHUA .D HEILIGER 5804 SPRING RIVER LANE FULSHEAR, TX 77441

DR.05-tCCH (Rev. 05/2025) Pa~e 3 of-4 STATE OF TEXAS

COUNTY OF HARRIS

Before me the undersigned authority personally appeared Lisa M. Teachey

who, being duly sworn by me, upon her oath deposed and stated that she is an

attorney with Dean G. Pappas Law Firm, PLLC and represents Fort Bend County in

the above entitled and numbered matter and is a custodian of Fort Bend County's

files in DWC Docket No. 24229142-01 styled Lauren Smith (Deceased), Claimant

v. Fort Bend County, Insurance Carrier and Cause No. 2024-78536, styled In re

Joshua David Heiliger, et al v. Texas Department ofInsurance, Division of Workers'

Compensation, et al and the documents attached hereto are true and correct copies

of the law firm's file copies of the pleadings and filings in these matters.

Signed this 11 th day of June, 2025.

Subscribed and sworn to before me the undersigned authority, by Lisa M. Teachey, known to me to be the person whose signature is subscribed above on this 11 th day of June, 2025.

blic in and for The State of Texas My commission expires: r- ••....,. ...... ,::,,; HOPE BURNETT-FURLOW .\ /~~Y · ""~i.;-;,, Notary Public, State ofTexas .; q :.?')'\ My Commission Expires ' \•~\ ~;,,; June 08, 2026 '. "·-i:,t/;(:,{\7/ NOTARY ID 13380210•7 • . - ..... ~~..,,, ~>,;:.r"W"~ CONFIDENTIAL Texas Labor Code §402.083

TEXAS DEPARTMENT OF INSURANCE Division of Workers' Compensation Houston East Field Office Houston, Texas

§ Lauren Smith (Deceased), § Claimant § § v. Docket Number § § 24229142-01-CC § Fort Bend County, § Insurance Carrier §

Order Vacating the September 19, 2024 Subpoena of Medical Records and Vacating the Subsequent Order to Compel

On February 6, 2025, the insurance carrier, Fort Bend County, self-insured, filed a notification that it withdraws the September 19, 2024, subpoena issued by Administrative Law Judge Okonkwo ordering the production and disclosure of Mrs. Smith's mental health records. The insurance carrier now relies upon the Administrative Law Judge's January 27, 2025, Order issuing the Deposition Subpoena of Dr. John Marcellus that is now in effect.

The Administrative Law Judge finds that there is good cause to vacate the September 19, 2024, subpoena and the subsequent order to compel the production and disclosure of Mrs. Smith's mental health records.

The September 19, 2024, subpoena and the subsequent order to compel are hereby vacated.

Signed on February 18, 2025.

~~ Francisca N. Okonkwo Administrative Law Judge

TAB E ·~ ~-i f i•Oivision of ~orkers' B:.tJ Compensation PO Box 12050 I Austin, TX 78711 rso0-252-7031 I tdi.texas.gov/wc

February -18, -2025

24229142-01-CC

JOSHUA D. HEfLIGER 5804 'SPRING RIVER LANE FULSHEAR TX 77441

EMMA D. HEILIGER 5804 SPRING RIVER LANE FULSHEAR TX 77441-2053

RUSSELL L MORRIS MCBRYDE FRANCO PLLC 11000 RICHMOND AVE STE 350 HOUSTON TX 77042-6702

FORT BEND COUNTY C/O DEAN G PAPPAS LAW FIRM LLC, BOX 29

MARILYN J. ALLEN DEANG PAPPAS LAW FIRM PLLC ·8588 KATY FWY STE 100 HOUSTON TX 77024-1813

FORT BEND COUNTY :<30 l JACKSON ST RICHMOND TX 77469-3108 STATE OF TEXAS

Before me the undersigned authority personally appeared Lisa M. Teachey

who, being duly sworn by me, upon her oath deposed and stated that she is an

attorney with Dean G. Pappas Law Firm, PLLC and represents Fort Bend County in

the above entitled and numbered matter and is a custodian of Fort Bend County's

files in DWC Docket No. 24229142-01 styled Lauren Smith (Deceased), Claimant

v. Fort Bend County, Insurance Carrier and Cause No. 2024-78536, styled In re

Joshua David Heiliger, et al v. Texas Department ofInsurance, Division of Workers'

Compensation, et al and the documents attached hereto are true and correct copies

of the law firm's file copies of the pleadings and filings in these matters.

* Subscribed and sworn to before me the undersigned authority, by Lisa M. Teachey, known to me to be the person whose signature is subscribed above on this ~-~ th ll dayofJune,2025. Not Pl1/)lic in and for The State of Texas My commission expires: TEXAS DEPARTMENT OF INSURANCE DMSION OF WORKERS' COMPENSATION HOUSTON EAST FIELD OFFICE HOUSTON, TEXAS

Lauren Smith, § Claimant § § § Docket No. 24229142-01 V. § § Fort Bend County, § Carrier §

,.Carrier's Amended Opposed .Motion to Subpt;ena Medical Records . from Dr. John Marcellus

The Self-Insured, Fort Bend County, files this Amended Opposed Motion to

Subpoena the Claimant's Medical Records from John E. Marcellus, M.D., Diplomate

American Board of Psychiatry and Neurology in Child, Adolescent and Adult

Psychiatry, 4888 Loop Central Drive, Suite 510, Houston, TX 77081, Phone 713-346-

1551, Fax: 713-346-1577 pertaining to Claimant, Lauren Smith, deceased, (SS#xxx-xx-

4261; Date of Birth: 10/18/1982), and would show unto this Honorable Division the

following:

This claim is set for a CCH on September 26, 2024, on the issue, among other

things of whether the Claimant sustained a compensable injury on April 10, 2023,

resulting in her death.

On April 10, 2023, at least eight hours after returning home from work, Lauren

Smith, a 40-year-old female paramedic for Fort Bend County EMS passed away at home.

According to the autopsy report and the death certificate, Ms. Smith died because of a brain

hemorrhage (stroke) due . to hvpertensive (high blood pressure} cardiovascular disease

CARRIER'S OPPOSED MOTION TO SUBPOENA MEDICAL RECORDS -Page 1 TAB F ,.aw,aya~ed by recent amphetamine .~e'.

The Carrier disputed liability and compensability of the claim and timely issued a

PLN-1 based on its investigation that the employee did not sustain a compensable injury on

April 10, 2023, that resulted in her death.

The surviving beneficiaries provided a medical report from her psychiatrist Dr. John

E. Marcellus indicating that he had treated the decedent for many years on a regular and

ongoing basis for ADHI) and other conditions and that he had prescribed her Adderall and

Vyvanse, amphetamine ADHI) stimulant drugs. It is undisputed that Ms. Smith was

hypertensive and that she used amphetamines which increase intracranial hypertension and ,, make hemorrhagic strokes more likely.

The surviving beneficiaries also provided a patient history from Dr. Marcellus,

indicating the decedent received Adderall and Vyvanse medication from 2012 through

4/03/2023; however, they did not provide any progress notes to show how this medication

was monitored based on her complicated pre-existing medical conditions including

hypertension, chronic anemia and cigarette smoking or how she used these drugs. (See

ExhibitB).

To properly defend this claim, the Carrier is requesting a full and complete copy of

the decedent's medical records from this facility for the three-year period from January 1,

,2020, through April 2023 so that the records may be carefully reviewed and submitted to a

peer reviewer. These records are being requested pursuant to Rule 142.12 and Rule 142.13

of the Texas Workers' Compensation Act because they are relevant and good cause has

been shown.

Based on the above, the Carrier believes good cause exists to grant the Opposed

CARRIER'S OPPOSED MOTION TO SUBPOENA MEDICAL RECORDS -Page 2 Motion to Subpoena the Medical Records from cDr. J<>hn Marcellus from January 1~_ :

Respectfully submitted,

DEANG. PAPPAS LAW FIRM, PLLC

Dean G. Pappas State Bar No: 15454375 dpappas@dgplawfirm.com , Marilyn J. Allen • State Bar No: 24025225 mallen@dgrilawfinn.com , 8588:kaiy':Freeway, SuitelO0 Houston, Texas 77024 Tel: (713) 914-6200 Fax: (713) 914-6201

ATTORNEYS FOR CARRIER FORT BEND COUNTY

CARRIER'S OPPOSED MOTION TO SUBPOENA MEDICAL RECORDS -Page 3 .CERTIFICATE OF SERVICE

I certify that a true and correct copy of the above and foregoing instrument has been forwarded to all counsel and parties of record, by certified mail, return receipt requested, facsimile and/or hand-delivery on the 9th day of September 2024 as follows:

Via Email: russell@mf-txlaw.com RussellL. Morrfa -,,-- McBryde Franco, .PLLC 11000 Richmond Ave. Suite 350 Houston, TX 77042

ManlynJ. Allen •••

CERTIFICATE OF CONFERENCE-

I contacted the Claimant's attorney, Russell Morris on 9/4/2024 and he was opposed to the motion.

Marilyn J. Allen

CARRIER'S OPPOSED MOTION TO SUBPOENA MEDICAL RECORDS -Page 4 TEXAS DEPARTMENT OF INSURANCE DIVISION OF WORKERS' COMPENSATION HOUSTON EAST FIELD OFFICE HOUSTON, TEXAS

Lauren Smith, § Claimant § § § Docket No. 24229142-01 V. § § Fort Bend County, § Carrier §

Order on Motion to Subp()ena Medical Records .·

The Division considered the Carrier's Opposed Motion to Subpoena Claimant's

Medical Records from John E. Marcellus, M.D., Diplomate American Board of

Psychiatry and Neurology in Child, Adolescent and Adult Psychiatry, 4888 Loop

Central Drive, Suite 510, Houston, TX 77081, Phone 713-346-1551, Fax: 713-346-1577

pertaining to Claimant, Lauren Smith, deceased, (SS# xxx-xx-4261; Date of Birth:

10/18/1982).

The Division finds good cause exists to obtain the medical records, pursuant to Rule

142.12 and 142.13 of the Texas Workers' Compensation Act.

Based on the above, the Carrier's Opposed Motion to Subpoena Medical Records

from ~J anuary 1, 2~202 through ~pti(:t; 2:013, from Dr. John E. Marcellus, Release. of

Information pertaining to Lauren Smith, decedent is approved.

SIGNED this _ _ day of,_____,,_,_-----~...----____. 2024.

Administrative Law .Judge •••

CARRIER'S OPPOSED MOTION TO SUBPOENA MEDICAL RECORDS -Page 5 APPROVED:

By: '(' ····:··:>· ·; ··'.. ."..". ···

Marilyn J. Allen State Bar No: 24025225 8588 Katy Freeway, Suite 100 Houston, Texas 77024 Tel: (713) 914-6200 Fax: (713) 914-6201

CARRIER'S OPPOSED MOTION TO SUBPOENA MEDICAL RECORDS sPage 6 This subpoena is issued in the name of the State of Texas.

To: Any Sheriff or Constable of the State of Texas or any other person authorized to serve and execute subpoenas under Rule 176.S(a), Texas Rules of Civil Procedure (TRCP)

Instructions: You are hereby commanded to summon the person named below to produce and permit inspection and copying of the documents and/or tangible things in the possession, custody, or control of the person summoned, by delivering them to the requesting person at the address indicated.

Summoned Person: Custodian of Records for Dr. John Marcellus, Release of Information

Required Action: Produce and permit inspection and copying of the designated documents or tangible things in the possession, custody, or control of the summoned person.

Documents and/or Ta~gible Things to be Produced: Medical Records from 01/01/2020 to the 04/01/2023 pertaining to Lauren Smith, (SS#xxx-xx-4261; Date of Birth: 10/18/1982).

Location: 4888 Loop Central Drive, Suite 510, Houston, TX 77081, Phone 713-346-1551, Fax: 713-346-1577.

Lauren Smith v. Fort Bend County, Docket Number: 24229142-01, in the Texas Department of Insurance, Division of Workers' Compensation

Requested By: Marilyn J. Allen, 8588 Katy Freeway, Suite #100 Houston, Texas 77024. Telephone: 713-914-6200

Sanctions Notice: Failure of any person to comply with a subpoena may result in sanctions under Section 415.021 of the Texas Labor Code. A subpoena may be enforced through the provisions of Section 2001.201 of the Texas Government Code.

This subpoena is issued under my official signature on,

Administrative Law Judge Texas Department of Insurance Division of Workers' Compensation Proof of Service

I acknowledge receipt of the above subpoena on . ,,, and hereby state that the subpoena was executed by personal service of a true and correct copy on said witness, on - . - - - - - - - - - - -·' at _ _ _ _ .m.

Signature of Process Server

CARRIER'S OPPOSED MOTION TO SUBPOENA MEDICAL RECORDS -Page 7 [B DE.AN CL ..PAPPAS ; , . .. . .... . . ' PLLC '•' .. · .... •. ·,.,, ., . •···· •~\'ITl'()BNf<}YR NI' L\ 'i\7 • 8588 KATY FREEWAY SUITE 100 HOUSTON, TEXAS 77024 TELEPHONE: 71 3-91 4-6200 FNC: 713-914-6201

MARILYN ALLEN mal.len@dgplawfirm.com.

September·9, 2024

Via Facsimile: (512) 804-40111 Texas Depart1nent of Insurance . Division of Workers' Compensation P.O. Box 12050 Austin, TX 78711

Re: Claimant: Lauren Smith (Deceased) Claim No.: 6000068 Employer: Fort Bend County DOI: 4/10/2023 DWC: 24229142-01

Dear Sir/Madam:

In regard to the above-mentioned case, enclosed please find the following documents for filing:

1. Carrier's Amended Oqposed Motion to Subpoena: ••,...... MedicalRecords from Dr~ John Marcellus .•• •,

By copy of this letter, all parties are being notified of this filing. Thank you for your courtesy and cooperation.

Sincerely,

DEANG.PAPPAS LAW FIRM, PLLC . I I J \.'· A ..:.·, I , . ··~ :;_:_: .'> ~ v~ ,_ .;~ ~·•'. ·., Marilyn Allen

MJA:on/Enclosure Texas Department oflnsurance Division of Workers' Compensation September 9, 2.,024 Page2

cc: ._Via.Email: russell@m(-txlaw.com. Russell L. Morris McBryde Franco, PLLC 11000 Richmond Ave. Suite 350 Houston, TX 77042 STATE OF TEXAS

Before me the undersigned authority personally appeared Lisa M. Teachey

who, being duly sworn by me, upon her oath deposed and stated that she is an

attorney with Dean G. Pappas Law Firm, PLLC and represents Fort Bend County in

the above entitled and numbered matter and is a custodian of Fort Bend County's

files in DWC Docket No. 24229142-01 styled Lauren Smith (Deceased), Claimant

v. Fort Bend County, Insurance Carrier and Cause No. 2024-78536, styled In re

Joshua David Heiliger, et al v. Texas Department ofInsurance, Division of Workers'

Compensation, et al and the documents attached hereto are true and correct copies

of the law firm's file copies of the pleadings and filings in these matters.

Signed this 11 th day of June, 2025. - --- .

Subscribed and sworn to before me the undersigned authority, by Lisa M. Teachey, known to me to be the person whose signature is subscribed above on this 11th day of June, 2025.

My commission expires: TEXAS DEPARTMENT OF INSURANCE DIVISION OF WORKERS COMPENSATION HOUSTON EAST FIELD OFFICE HOUSTON, TEXAS

LAUREN SMITH § § vs. § DWC: 24229142-01 _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _§_ _ _ _ _ __ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __ FORT BEND COUNTY, §

CLAIMAINTS' OBJECTION TO CARRIER'S OPPOSED MOTION TO SUBPOENA MENTAL HEALTH RECORDS FROM DR. JOHN MARCELLUS

TO THE HONORABLE ADMINISTRATIVE LAW JUDGE: COMES NOW, Joshua Heiliger and Emma Heiliger ("Claimants"), and submits this their

Objection to Carrier's Opposed Motion to Subpoena Mental Health Records from Dr. John

Marcellus, and would show unto the Honorable Administrative Law Judge the following:

I. BACKGROUND FACTS

1. On or about April 10, 2023, Mrs. Lauren Smith tragically and unexpectedly passed

away from a fatal hemorrhagic stroke, occurring just hours after completing an arduous and

stressful 48-hour shift as a paramedic with Fort Bend County Emergency Medical Services. Mrs.

Smith's husband, Joshua Heiliger, and her adopted daughter, Emma Heiliger, have applied for

death benefits, contending, with the support of several medical experts, that the stroke was directly

and proximately caused by the strenuous conditions of her recent shift with Fort Bend County

EMS.

2. The Canier, Fort Bend County, has disputed liability and compensability, citing the

Medical Examiner's report, which attributes Mrs. Smith's death to recent amphetamine use that

purp01iedly exacerbated her pre-existing hypertension and cardiovascular disease.

TAB G 3. On or about September 5, 2024, the Canier filed its Opposed Motion to Subpoena 23

years of mental health records from Dr. John Marcellus, Mrs. Smith's psychiatrist. The Carrier

filed its motion to subpoena mental health records citing Rule 142.12 and Rule 142.13 of the Texas

Workers' Compensation Act.

- - - - - - - -~4~.- ~ T.he Claimants_ob.j.e_c_t_t_o_ th.e_n::qu_es_t.e_d_s_uhp_o_ena_as_the_r.e_cords_.requested_are._ _ _ _ __

privileged, confidential, irrelevant, sought for harassment, vague, overbroad, unduly burdensome,

and not propo1tional to the needs of the case, as more thoroughly explained below.

5. Additionally, Claimants have provided extensive medical records regarding Mrs.

Smith's medical history, including over 800 pages of her medical records from her p1imary care

physician, pulmonologist, and hospitals that have treated her in the recent years, as well as her

prescription histo1y from Dr. Marcellus demonstrating the frequency and dosage of her

prescriptions. Thus, the Carrier has all the medical records necessary for Carrier to present its

alleged claim that Mrs. Smith's use of her legally prescribed medications is the cause of her

untimely and tragic death.

6. In fact, Carrier's expert has had no problem issuing four (4) reports on this issue to

date. 1 Likewise, Claimants' expert has had no issue opining as to his belief the stroke and resulting

death was directly and proximately caused by the stressful and arduous 48-hour shift Mrs. Smith

ended just hours before her untimely death.

7. Thus, Claimants assert the Administrative Law Judge should deny Carrier's

motion for subpoena Mrs. Smith's mental health records.

1 Interestingly, the Can-ier argued that Claimants' request to depose multiple leadership employees of Fort Bend County, who also responded to Mrs. Smith's home the night she died and also issued a Line of Duty Death Letter to the Claimants, was "immaterial, irrelevant, overly broad," but somehow now believes that 23 years of mental health records, despite having 800+ pages of medical records and a detailed prescription history, should be ordered produced. II. OBJECTION TO CARRIER'S MOTION TO SUBPOENA

The Records Are Confidential Under the Health and Safety Code.

8. First, the mental health records requested are privileged and confidential between the

patient and a professional, such as her psychiatrist, and may not be disclosed except for in

extremely limited circumstances - none of which are present here. Tex. Health & Safety Code §

611.002 (a)-(b). Specifically, the code states "[c]ommunications between a patient and

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

created or maintained by a professional, are confidential." Id.

9. Seeing as the Canier wishes to obtain the "progress notes" and "records" from Mrs.

Smith's psychiatrist, the requested records will undeniably contain Mrs. Smith c01mnunications as

well as any diagnosis, evaluations, or treatments by Dr. Marcellus. Therefore, the records are per

se confidential and may not be disclosed unless an enumerated exception applies, or consent of the

patient or representative of the patient is provided. The Heiligers do not provide their consent.

10. The statute provides tlu·ee exceptions,2 which are not applicable in this case. Section

611.002 states the only exceptions are found in Sections 611.004, 611.0041, and 611.0045."

11. Section 611.004 provides a list of eleven scenarios where a professional may disclose

confidential infonnation. Id. at §611.004. None of the eleven scenarios enumerated are applicable

here or provide a specific basis to authorize or order the disclosure. The only portion that is relevant

from 611.004 is subsection (a)(l) that simply says "if the disclosure is required or auth01ized by

law" the records may be disclosed to a governmental agency. However, that does not provide an

independent basis to pierce the confidentiality, nor does it make the mental health records relevant,

2 Tex. Health & Safety Code§§ 611.004, 611.0041, 611.0045. or bring them out of the realm of the request being harassing, abusive, overly burdensome, vague,

or not proportional to the needs of the case. This section simply provides a safe harbor for the

professional to avoid possible civil or c1iminal liability for complying with an order to produce the

records.

_ _ _ _ _ _ _ _12~ S_ecti_Qn_6JJJ10AJ_p_ennits_a_professionaLto_dis_clos_e_confidentialto.Jhe_descendanLo£.~a______

patient of a state hospital if the patient has been deceased for 50 years and the professional does

have infom1ation that disclosure is against the patient's or the estate's previously expressed

preference. Id. at §611.0041. This clearly does not apply here.

13. Section 611.0045 entitles a patient the right to have access to their own confidential,

mental health records. Id. at §611.0045. Again, not applicable here.

14. Thus, there is no basis for the Carrier to receive access to Mrs. Smith's mental health

The Mental Health Records are Privileged Under Texas Rules of Evidence.

15. Further, the Carrier does not meet the exceptions under Texas Rule of Evidence Rule

501 (d). An exception to the mental health privilege applies only when "a party relies on the

patient's physical, mental, or emotional condition as a pait of the patty's claim or defense and the

c01mnunication or record is relevant to that condition." Tex. R. Evid. 501(d); In re Richardson

Motorsports, Ltd., 690 S.W. 3d 42 (Tex. 2024); R.K. v. Ramirez, 887 S.W.2d 836,842 (Tex. 1994).

"As a general rule, a mental condition will be 'part' of the claim or defense if the pleadings indicate

that the jury must make a factual detennination concerning the condition itself." R.K., 887 S.W.2d

at 842.

16. The Court also noted simply using a standard of whether the infonnation soµght is

"relevant" to a patty's claim or defense is too broad and as a result, the privilege would cease to exist. See Ramirez, 887 S.W. 2d at 842. ("relevance alone cannot be the test, because such test

would ignore the fundamental purpose of evidentiary privileges, which is to preclude discovery

and admission of' such infonnation). Thus, Canier's argument that the records are "relevant" is

not the appropriate standard for mental health records, and therefore, Canier's motion should be

_ _ _ _ _d=e11~_d_.•~- - - - - - - - - - - - - - - -- - - - - - - - - - - - - -- - - - - -- - -

17. Here, Mrs. Smith's condition(s) include attention deficit hyperactive disorder (ADHD)

and post-traumatic stress disorder (PTSD). There is not a factual issue in this case related to Mrs.

Smith's ADHD or PTSD. The only thing relevant from Dr. Marcellus is the prescriptions for

Adderall and Vyvanse - and as previously mentioned, all the records related to such prescriptions

have already been turned over to the Can-ier. Neither the Carner nor the Claimants are relying on

Mrs. Smith's ADHD or PTSD for any claim or defense in this death benefits claim.

18. Therefore, the mental health privilege exception does not apply, and Mrs. Smith's

mental health records are not discoverable. Of note, while the rnles of evidence are not necessarily

applicable in an administrative proceeding, there is a high likelihood this case will end up in

District Court and the production of such records during the administrative proceeding, without

regard to the Texas Rules of Evidence and the related p1ivilege, would substantially prejudice the

rights of the Claimants as the representatives of Mrs. Smith.

Irrelevant, Vague, Unduly Burdensome, and Not Proportional to Needs of the Case

19. Additionally, it is important to notice the Carrier is requesting a full and complete copy

of the decedent's mental health records from Dr. Marcellus's facility from January 1, 2000, through

April 2023. A twenty-three (23) year time period is overly broad, irrelevant, and sought for

harassment. Therefore, Claimants object to the Canier's motion as it is overly broad and irrelevant

to the cause of Mrs. Smith's death. 20. The Carrier first requested five (5) years of records in their email con-espondence to

Claimants' counsel. Then, it is formal request for a subpoena, has now requested 23 years of

records. Claimants do not believe any records, which have not already been provided, should not

be ordered produced. However, as to Car1.1er's formal request, 23 years is obviously absurd and

- - - -~ -olely_intended_to_s:w.ay_the.AdministratiYe.. Judge.to..order..to_fiye_(5J-Y:ears.originall}u ·equested _ _ _ _ _ __

21. It is difficult to conceive that a timeframe extended by almost fivefold could be

construed as anything but unduly burdensome, harassing, and non-proportional. Claimants

respectfully request the Administrative Law Judge to view this request for what it is: an attempt to

distract the Administrative Law Judge from the in-elevance of the Carrier's request, ignore the

confidentiality and p1ivilege rnles, and order production of these records.

22. However, Claimants trust the Administrative Law Judge will adhere to the law and

rules related to privilege and confidentiality and deny Carrier's request.

All Medical Records Have Been Provided

23. Lastly but not least, the Carrier is already in possession of all relevant medical records

necessary to litigate this case. As noted, Claimants provided 800 pages of medical records from

Mrs. Smith's primary care physician, pulmonologist, and hospitals that treated her over the past

several years. Additionally, Claimants provided Mrs. Smith's entire prescription history as it relates

to the Adderall and Vyvanse she was prescribed by Dr. Marcellus. There is nothing else that is

needed for Canier to have an expert opine on the issue at hand: whether Mrs. Smith's hemon-hagic

stroke that occurred within hours of completing a stressful 48-hour shift with Fort Bend County

EMS is compensable.

24. The Motion submitted by Cairier states "it is undisputed ... she was hypertensive and

that she used amphetamines which increase intracranial hypertension and make hemorrhagic strokes more likely." This demonstrates Canier's position and "defense." It also demonstrates the

records Claimants have already provided are what the Canier needs. The Canier has Mrs. Smith's

full medical file, aside from mental health records, and has Mrs. Smith's full prescription history

related to amphetamines. The Carrier's expert has issued four (4) reports on this matter and has

- - - - ~opjn_e_d_fane a_1.1iLagai_Q..a_s_to_hl;ll::._Qpinio_n_onJhe_c_a.t1s_e _ofJhe_s_tmke_and_r_es_ulting_d_e.ath_atjs_s_ue._The~ - - - --

Claimants' expert has provided two (2) rep01is regarding the same. Nothing else is needed and the

request is solely sought for harassment to further dig into the piivacy of Mrs. Smith. The Canier

has not demonstrated sufficient evidence or basis to pierce the confidentiality and privilege of these

records. Thus, the request should be denied.

Isl Russell L. Morris Russell L. Monis State Bar No. 24099150 Andrew W. Bruce State Bar No. 24113627 Pablo A. Franco State Bar No. 24121625 MCBRYDE FRANCO, PLLC 11000 Richmond Avenue, Suite 350 Houston, TX 77042 (713) 223-7699 (512) 691-9072 [facsimile] serv.rnssell@mf-txlaw.com

ATTORNEYS FOR CLAIMAINTS CERTIFICATE OF SERVICE

I hereby certify that a true and c01Tect copy of the foregoing document was forwarded via as indicated below to all counsel on record on this the 9th day of September 2024. VIA EMAIL:

Marilyn J. Allen, DEANG. PAPPAS LAW FIRM, PLLC, 8588 Katy Freeway, Suite 100, Houston, Texas 77024 mallen@dpglawfinn.com

ATTORNEYS FOR CARRIER

Isl Russell L. Morris Russell L. Monis STATE OF TEXAS

Before me the undersigned authority personally appeared Lisa M. Teachey

who, being duly sworn by me, upon her oath deposed and stated that she is an

•attorney with Dean G. Pappas Law Firm, PLLC and represents Fort Bend County in

the above entitled and numbered matter and is a custodian of Fort Bend County's

files in DWC Docket No. 24229142-01 styled Lauren Smith (Deceased), Claimant

v. Fort Bend County, Insurance Carrier and Cause No. 2024-78536, styled In re

Joshua David Heiliger, et al v. Texas Department ofInsurance, Division of Workers'

Compensation, et al and the documents attached hereto are true and correct copies

of the law firm's file copies of the pleadings and filings in these matters.

Signed this 11th day of June, 2025.

Subscribed and sworn to before me the undersigned authority, by Lisa M. Teachey, known to me to be the person whose signature is subscribed above on this 11 th day of June, 2025. •

Not ublic in and for The State of Texas My commission expires: 09/09/2024 14:22 (FAX) P.008/010

TEXAS DEPARTMENT OF INSURANCE DMSION OF WORKERS' COMPENSATION HOUSTON EAST FJELD OFFICE HOUSTON, TEXAS

Lauren Smith, § Claimant § § § Docket No. 24229142-01 v. § § Fort Bend County, § Carrier §

Order on Motion to Sub.noena Medical Records The Division considered the Carrier's Opposed Motion to Subpoena Claimant's

Medical Records from John E. Marcellus, M.D., Diplomate Amerkan Board of

Psychiatry and Neurology in Child, Adolescent and Adult Psychiatry, 4888 Loop

Central Drivet Suite 510, Houston, TX 77081, Phone 713-346-1551, Fax: 713-346-1577

pertaining to Claimant, Lauren Smith, deceased, (SS# xxx-xx-4261; Date of Birth:

The Di-vision finds good cause exists to obtain the medical records~ pursuant to Rule

142.12 and 142.13 of the Texas Workers' Compensation Act.

Based on the above, the Carrier's Opposed Motion to Subpoena Medical Records

from January 1, 2020, through Anrtl 1. 2023, from Dr. John E. Marcellus, Release of

Infonnation pertaining to Lauren Smith, decedent is approved.

SIGNED this 19th day of __S_e__ pt_e_m_b_er_ _ _ _ _......,, 2024.

Administrative Law Judge

CARRIER'S OPPOSED MOTION TO SUBPOENA MEDICAL RECORDS -Page S TAB H

09/09/2024 2:23PM (GMT-05:00) 09/09/2024 14:22 (FAX) P.009/010

APPROVED:

DEANG.PAPPAS LAW FIRM, PLLC

By: Marilyn J. Allen State Bar No: 24025225 8588 Katy Freeway, Suite 100 Houston. Texas 77024 Tel: (713) 914-6200 Fax: (713) 914-6201

ATIORNEYSFORCARRIER FORT BEND COUNTY

CARRIER'S OPPOSED MOTION TO SUBPOENA MEDICAL JU':CORDS •Page 6

09/09/2024 2:23PM (GMT-05:00) STATE OF TEXAS

Before me the undersigned authority personally appeared Lisa M. Teachey

who, being duly sworn by me, upon her oath deposed and stated that she is an

attorney with Dean G. Pappas Law Firm, PLLC and represents Fort Bend County in

the above entitled and numbered matter and is a custodian of Fort Bend County's

files in DWC Docket No. 24229142-01 styled Lauren Smith (Deceased), Claimant

v. Fort Bend County, Insurance Carrier and Cause No. 2024-78536, styled In re

Joshua David Heiliger, et al v. Texas Department ofInsurance, Division of Workers'

Compensation, et al and the documents attached hereto are true and correct copies

of the law firm's file copies of the pleadings and filings in these matters.

= ~ cSlb Lisa M. Teachey

Subscribed and sworn to before me the undersigned authority, by Lisa M. Teachey, known to me to be the person whose signature is subscribed above on this 11 th day of June, 2025.

,ublic in and for The State of Texas ~~-OOffli'Ri-e~~~~).lleS: 1~. _late 11/7/2024 12:29 PM Marilyn Burgess - District Clerk Harris County Envelope No. 94042471 2024-78536 I Court: 61 By: Monica Jackson Filed : 11/7/2024 12:29 PM

CAUSE NO: - - - - - - - In re Joshua David Heiliger, § IN THE DISTRICT COURT OF 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 § Petitioner, § § v. § § Texas Department of § - - - JUDICIAL DISTRICT Insurance, Division of § Workers' Compensation; § Cassie Brown, § Commissioner, Texas § Department of Insurance, § Division of Workers' § Compensation, in Her § Official Capacity; Francesca § Okonkwo, Administrative § Law Judge, Texas § Department of Insurance, § Division of Workers' § Compensation, in Her § Official and Individual § Capacities. § HARRIS COUNTY, TEXAS Respondents. §

PETITIONER'S VERIFIED ORIGINAL PETITION FOR DECLARATORY 0 JUDGMENT, APPLICATION FOR TEMPORARY RESTRAINING ORDER, N 4-< 0 TEMPORARY INJUNCTION, AND PERMANENT INJUNCTION d.) bO ro 0.. I 00 TO THE HONORABLE JUDGE OF SAID COURT: 00 \0 °'"

;._; d.) Lauren Brittane Smith, deceased, and on behalf of Death Benefits Beneficiaries Joshua David .D E ;:I z Heiliger and Emma Destiny Heiliger ("Petitioner"), and files this his Verified Original Petition for

Declaratory Judgment, Application for Temporary Restraining Order, Temporary Injunction, and

Page 1 of 20

TAB I Permanent Injunction against Respondents Texas Department of Insurance, Division of Workers'

Compensation; Cassie Brown, Commissioner, Texas Department of Insurance, Division of

Workers' Compensation, in Her Official Capacity; Francesca Okonkwo, Administrative Law

Judge, Texas Department of Insurance, Division of Workers' Compensation, in Her Official and

Individual Capacities, and would show unto the Court as follows:

DISCOVERY CONTROL PLAN

1. Petitioner intends that discovery in this case be conducted pursuant to Level 2 of

Rule 190.3 of the Texas Rules of Civil Procedure.

STATEMENT PURSUANT TO TEXAS RULE OF CIVIL PROCEDURE 4 7

2. Petitioner only seeks non-monetary relief, See Tex. R. Civ. P 47(c)(3)

PARTIES AND SERVICE

3. Petitioner, Joshua Heiliger, is an individual residing in the State of Texas.

4. Respondent Texas Department of Insurance Workers' Compensation Division of

Workers' Compensation is a political subdivision of the State of Texas that administers and

conducts administrative, election, and legal proceedings. Respondents Texas Department of

Insurance Workers' Compensation, Division may be served with process at Texas Department of 0 N 4-, , 0 Insurance, Barbara Jordan Building, 1601 Congress Avenue, Austin, Texas 78701. Issuance of N

~ 0.. citation for service of process on Respondent Texas Department of Insurance - Worker's 00 00 \0 Compensation Division at the address and in the manner stated above is hereby requested. °'0<::I" r-- ;._; 5. Respondent Cassie Brown, Commissioner, Texas Department of Insurance 0 Cl -0

Compensation Division may be served with process at Texas Department of Insurance, Barbara

Jordan Building, 1601 Congress Avenue, Austin, Texas 78701. Issuance of citation for service of

process on Respondent Cassie Brown, Commissioner, Texas Department of Insurance,

Division of Workers' Compensation at the address and in the manner stated above is hereby

requested.

6. Respondent Francesca Okonkwo, Administrative Law Judge, Texas Department of

Insurance Workers' Compensation, Division of Workers' Compensation is an appointed

administrative law judge of the Texas Department of Insurance, Division of Workers'

Compensation which is a political subdivision of the State of Texas that administers and conducts

administrative, election, and legal proceedings. Respondent Francesca Okonkwo, Administrative

Law Judge, Texas Department oflnsurance Workers' Compensation Division may be served with

process at Texas Department of Insurance, Division of Workers' Compensation, Houston East

Field Office, 5425 Polk St. Houston, Texas 77023 . Issuance of citation for service of process on

Respondent Francesca Okonkwo, Administrative Law Judge, Texas Department of

Insurance, Division of Workers' Compensation at the address and in the manner stated

above is hereby requested. 0 .... N 0 JURISDICTION AND VENUE <'"> Q.) o.O ell 0. I 7. Pursuant to Texas Civil Practice & Remedies Code § 15.002, venue is proper in 00 00 'D 0-, 0 Harris County, Texas because all or a substantial part of the events which form the basis of this -st" r---

;..; lawsuit were performed in Harris County. Additionally, venue is proper in Harris County pursuant Q.) .D E z::::l to Texas Health and Safety Code §611.005 as Petitioner resides in Harris County. cQ.)

E ::::l u 0 Cl -0 Q.) t.:: "€ Q.) Page 3 of 20 u 8. This Court has subject matter jurisdiction over this case as the damages sought are

within the jurisdictional limits of this Court.

BACKGROUND FACTS

9. Petitioner respectfully appears before this Court seeking a declaration of rights and

equitable relief to protect his rights and privileges as conferred by Texas law in an impending

administrative proceeding, as well as the likely subsequent judicial review in District Court after

the administrative remedies have been exhausted pertaining to a death benefits claim pursuant to

the Texas Workers' Compensation Act.

10. The central issue before this Court is whether the Administrative Law Judge, Ms.

Francesca Okonkwo, overseeing Petitioner's death benefits claim, pursuant to the Texas Worker's

Compensation statutes, violated Texas Law (and Petitioner's rights) by issuing an administrative

subpoena, and subsequent order to compel, ordering the production and disclosure of privileged

and confidential mental health records of Petitioner's deceased spouse, Mrs. Lauren Brittane

Smith.

11. Petitioner asserts that Respondents, by virtue of the issued subpoena and order

compelling production, have violated Texas Health and Safety Code Section 611.002, which deems

such records privileged and confidential and only subject to disclosure in very limited 0 N ....... 0 circumstances - none of which are applicable here. """ Q) (lJJ «I c.. 12. Additionally, Petitioner believes Respondents, via the subpoena and subsequent 00 00 'D °' 0 order to compel, have exceeded the express statutory authority conferred upon Respondents. See r--- """ ;,_; Tex. Admin. Code Section 142.12(a)-(f)(administrative subpoenas). The express legislative Q) .0 E :::l authority delegated upon Respondents permits the issuance of either a "deposition subpoena" or a z C: Q)

E :::l "hearing subpoena," commanding/summoning a person to appear and either testify or produce (.) 0 Cl "t:l Q) I,.::: "€Q) Page 4 of 20 u evidence at a deposition or at a hearing. The subpoena at issue solely commands the production

of records -without requiring the individual commanded to appear at a deposition or at a hearing.

Moreover, the subpoena does not have a time for compliance - yet, the Administrative Law Judge

has issued a Motion to Compel. See Exhibits A and C Thus, the subpoena does not comply with

the Texas Administrative Code and is improper on its face. See Exhibit G.

13 . Considering the statutory protections, and binding Texas Supreme Court precedent

on the privileged nature of mental health records, as well as the express legislative authority

delegated to Respondents, Petitioner respectfully requests this Court declare the mental health

records of Mrs. Lauren Brittane Smith privileged and confidential, and order the Respondents to

vacate the subpoena and subsequent order compelling production and disclosure of the privileged

and confidential mental health records.

14. Further, upon hearing and ultimately trial in this cause, Petitioner respectfully

requests this Court issue a temporary, and subsequently a permanent, injunction preventing

Respondents from seeking, enforcing, or compelling the production and disclosure of the

privileged mental health records of Mrs. Lauren Brittane Smith.

Administrative Procedural History for Underlying Death Benefits Claim

15 . On or about April 10, 2023, Mrs . Lauren Smith (deceased), a dedicated paramedic 0 .... N 0 1/) with Fort Bend County Emergency Medical Services (FBEMS), tragically suffered fatal stroke (!.) bl) o:l Q. I shortly after returning home after ending an arduous 48-hour shift as a shift supervisor with 00 00 \0 °' 0 FBEMS . 'Sf" r--..

...; 16. On or about April 2, 2024, Petitioner Joshua Heiliger, the surviving spouse of Mrs . (!.) ..c E ;::s Smith, timely filed a death benefits claim with the Texas Department of Insurance - Worker's z.... l:i E ;::s (.) 0 0 -0 (!.) i.;:; ·-e (!.) Page 5 of 20 u Compensation Division on behalf of himself and his daughter, Ms. Emma Heiliger, in accordance

with the statutory limitations period. 1

17. Fort Bend County (the "County"), a self-insured entity and thus acting as both the

employer and the carrier, has contested whether Mrs . Smith's stroke qualifies as compensable

work-related injury. See Exhibit J (Denial of Liability/Compensability). The parties are currently

navigating the required statutory administrative process before seeking judicial review.

18. Specifically, the County contests the compensability of the stroke based on the

autopsy conducted by the Fort Bend County Medical Examiner, who attributed the cause of Mrs.

Smith's stroke to "Hypertensive cardiovascular disease aggravated by recent amphetamine use,"

referencing the presence of amphetamines (due to Mrs. Smith's legally prescribed use of Adderall

and Vyvanse) in the Fort Bend County Medical Examiner's toxicology report. See Exhibit J.

19. Petitioner was shocked upon receiving the Medical Examiner's report (six weeks

after Mrs. Smiths passing), particularly because Mrs. Smith had been legally prescribed and had

taken, Adderall and Vyvanse for over 20 years without incident. Petitioner sought opinions from

Mrs. Smith's treating physicians, including her Primary Care Physician, Pulmonologist (who

recently treated her for severe COVID-19 prior to her death), and Psychiatrist (who prescribed the

Adderall and Vyvanse). All disagreed with the Medical Examiner's conclusion, asserting that Mrs .

~ Smith's legally prescribed medications did not cause her stroke and that it was more likely her ""'0 '-0 0 Oil recent 48-hour shift as a first responder is what led to the stroke. "' 0.. 00 00 20. Both Petitioner and the County have engaged medical experts during the '-0 °' 0 ~ administrative process. The County's expert supports the medical examiner's findings that Mrs. ..: 0 .D E ::s z 1 Ms. Emma Heiliger is also the adopted daughter of Mrs. Lauren Smith. c0 E ::s (.) 0 Cl -0 0 l;:; '-EQ) Page 6 of 20 u Smith's use oflegally prescribed amphetamines, in conjunction with her pre-existing hypertension,

caused her stroke. In contrast, Petitioner's expert disagrees and has opined that it is unlikely the

lawfully prescribed medications caused the stroke given the length of time Mrs. Smith had been

taking the same dosage of the medications; suggesting instead that Mrs. Smith's recent 48-hour

shift as a first responder more likely contributed to her untimely death .

21. After attending two required benefit review conferences ("BRCs") with the Texas

Department of Insurance, Division of Workers' Compensation, a Contested Case Hearing ("CCH")

was scheduled for September 25, 2024.

22. This hearing occurred, but did not finish as scheduled and has been rescheduled for

November 15, 2024.

Administrative Subpoena Requesting Mental Health Records

23 . On or about September 4, 2024, the County, through their counsel, requested

Petitioner tum over five (5) years of Mrs. Smith's mental health records from her psychiatrist, Dr.

John Marcellus. Petitioner objected to the request on the basis "these materials are irrelevant,

sought for harassment, and most importantly privileged and/or confidential and not subject to

di sci osure or discovery ."

24. Thereafter, on or about September 5, 2024, the County requested an administrative 0 N '- 0 r-- subpoena from the Texas Department of Insurance, Division of Workers' Compensation, for the 4) bl) o:t 0.. disclosure of 23 years of Mrs . Smith's mental health records . See Exhibit A Petitioner timely 00 00 \D °'0-.:I" objected to this request on the same basis as previously asserted . See Exhibit B. On the same day r-- ..; as Petitioner's objection, the County amended its request, reducing the scope to 3 years ofrecords . 4) ..0 E ::l ;z: See Exhibit A. ..... ~ E ::l u 0 Cl "Cl 4) t;:; '-E 4) Page 7 of 20 u 25 . On or about September 6, 2024, the Administrative Law Judge, Ms. Francesca

Okonkwo, denied the County's original request for 23 years of records, which was received by

Petitioner on or about September 13, 2024.

26. The originally scheduled Contested Case Hearing occurred on or about September

25, 2024. During this hearing, the subpoena or request for mental health records was not addressed

by any party.

27. Later, on or about October 21, 2024, almost 30-days later, Petitioner was informed

by the County the Administrative Law Judge had in fact granted its request for an amended

subpoena on or about September 19, 2024, ordering the production and disclosure of the Mrs.

Smith's mental health records from January 1, 2020, to April 10, 2023 . See Exhibit A.

28. Neither Petitioner nor his counsel received previous notification of this order from

the County, the Administrative Law Judge, or the Texas Department of Insurance, Division of

Workers' Compensation.

29 . The subpoena issued by the Administrative Law Judge does not comply with the

requirements of the Texas Administrative Code and exceeds the express legislative authority

conferred upon Respondents. See Tex. Admin. Code Section 142.12. Specifically, the subpoena

does not command or summon the custodian of records to appear for a deposition or a hearing.

....;:::l Rather, it only commands or summons the custodian of records to produce for inspection and 0 00 ~ copying the mental health records. Moreover, the subpoena does not have a time for compliance. 0...

00 00 See Exhibit A 'D °' 0 ~ 30. This is directly contrary to the express language of Texas Administrative Code, ..,..; Section 142.12- the legal basis of the subpoena itself See Tex. Admin . Code §142.12(a)(3) .D E ::l z.... (Definitions ... Subpoena - A division order issued by the administrative law judge requiring a ..,C E ::l () 0 0 -0.., i..:::: '€.., Page 8 of 20 u person to attend or produce evidence at a deposition (deposition subpoena) or at a hearing

(hearing subpoena): see also, Tex. Admin. Code§ 142.12(c) (Request for subpoena. A party may

request a subpoena in the following manner: (1) If the requester is a carrier .. . the request shall:

(C) state whether the subpoena is for a deposition or a hearing); Tex. Adm in . Code§ 142.12(£)

(costs for "attend[ing] a hearing or deposition .") (emphasis added).

31. Between on or about September 19, 2024, and the present, the County has

attempted to obtain Mrs. Smith's privileged and confidential mental health records pursuant to this

administrative subpoena. In addition to emailing and faxing the subpoena request to Dr. Marcellus'

office, legal staff for the County, as well as a third-party service provider hired by the County, have

placed phone calls into Dr. Marcellus' office between 1-3 times per day. See Exhibit E and Exhibit

I.

32. On or about October 28, 2024, the County filed a Motion to Compel the production

and disclosure of the records with the Administrative Law Judge asking for an Order to compel

the production and disclosure pursuant to the subpoena. See Exhibit C.

33 . On or about October 29, 2024, Petitioner filed a response to the Motion to Compel

pointing out that County had not yet properly served the subpoena (and thus the issue was not yet

ripe), and that the subpoena was deficient as it failed to provide a time for compliance. See Exhibit 0 N <+-, D. 0

°'Oil 0 34. Additionally, on or about October 30, 2024, Petitioner filed a Motion for C

°' 0 -.:I" r--- confidential and privileged under the Health and Safety Code, and the Texas Rules of Evidence, L: Q.} ..c the subpoena as issued exceeds the express statutory authority delegated per the Texas E :::, ;z: ..., C: Administrative Code, and the subpoena does not contain a time for compliance. See Exhibit E . Q.}

E :::, <.) 0 Cl -0 Q.} i.;: '€Q.} Page 9 of 20 u 35. On or about November 4, 2024, Petitioner received notification from the Texas

Department of Insurance, Division of Workers' Compensation the Administrative Law Judge, Ms .

Francesca Okonkwo, granted the County's Motion to Compel, Petitioner's objections. See Exhibit

F.

The Texas Health and Safety Code Confidentiality of Mental Health Records

36. Per the Texas Health and Safety Code, Section 611.002, the mental health records

requested are privileged and confidential between the patient and a professional, such as her

psychiatrist, and may not be disclosed except for in extremely limited circumstances - none of

which are present here. Tex . Health & Safety Code § 611. 002 (a)-(b ). Specifically, the code states

"[c]ommunications between a patient and professional, and records of the identity, diagnosis,

evaluation, or treatment of a patient that are created or maintained by a professional, are

confidential." Id; see also, Exhibit H.

37. Seeing as the County wishes to obtain the " progress notes" and "records" from Mrs.

Smith's psychiatrist, the requested records will undeniably contain Mrs. Smith communications as

well as any diagnosis, evaluations, or treatments by Dr. Marcellus. Therefore, the records are

per se confidential and may not be disclosed unless an enumerated exception applies, or

0 consent of the patient or representative of the patient is provided. See Tex . Health & Safety N "-' 0 0 Code, § 611.002 (a)-(b). The Petitioner does not provide consent. OJ ~ Q. 38. The Texas Health and Safety Code provides three exceptions, none of which are 00 00 \0 °' 0 applicable in this case. The Texas Health and Safety Code, Section 611.002, states the only '<:I" r---

;.; exceptions to the confidential and privileged status of mental health records, permitting disclosure, OJ ..c a:::, are found in Sections 611.004, 611.0041, and 611.0045 . z c OJ a:::, (.) 0 Cl -0 OJ !.;:::. '€ Page 10 of 20 OJ u 39. Section 611.004 provides a list of eleven scenarios where a professional may

disclose confidential information without being liable for improper disclosure. Id. at§ 611.004.

None of the eleven scenarios enumerated are applicable here or provide a specific basis to

authorize or order the disclosure.

40. The only portion that is relevant from Section 611.004 is subsection (a)(l) which

simply says "if the disclosure is required or authorized by law" the records may be disclosed to a

governmental agency. However, this does not provide an independent basis to pierce the

confidentiality and privilege, nor does it make the mental health records relevant and material or

bring them out of the realm of the request being harassing, abusive, overly burdensome, vague, or

not proportional to the needs of the case. This section simply provides a safe harbor for the

professional to avoid possible civil or criminal liability for complying with an order to produce the

41. Section 611.0041 permits a professional to disclose confidential to the descendant

of a patient of a state hospital if the patient has been deceased for 50 years and the professional

does have information that disclosure is against the patient's or the estate's previously expressed

preference. Id. at §611.0041. This clearly does not apply here.

42. Section 611 .0045 entitles a patient the right to have access to their own confidential, 0 ~ mental health records . Id. at §611.0045 . Again, not applicable here. 0

Q) bl) 43 . Thus, there is no basis in fact or law for the County to receive access to Mrs . Smith's «l 0.. 00 00 mental health records . 'D °' 0 <::I" r--- The Texas Rules of Evidence and Texas Supreme Court Case Law on Privilege and i.,; Q) Confidentiality of Mental Health Records ..0 E z :::l 44. Per the Texas Supreme Court and the Texas Rules of Evidence, the standard for cQ)

E :::l whether mental health records are subject to discovery in a legal dispute is whether the "records <.) 0 0 "Cl Q) t;:: '€Q) Page 11 of 20 u are 'relevant to the condition at issue' and whether the condition itself is oflegal consequence to a

claim or defense." R.K. v. Ram;rez, 887 S.W.2d 836, 842 (Tex. 1994) ("As a general rule, a mental

condition will be 'part' of the claim or defense if the pleadings indicate that the jury must make a

factual determination concerning the condition itself").

45. The only issue of dispute in this case is whether Mrs . Smith's stroke resulted from

her use of legally prescribed amphetamines (as argued by the County) or whether it was a result

of the 48-hour shift she had just ended mere hours prior to the stroke (as argued by the Petitioner).

There is nothing in this case that revolves around or turns on whether Mrs. Smith had ADHD or

PTSD such that a fact finder would be required to make a finding of these conditions themselves .

See Exhibit J. Moreover, the prescription records, which dictate the dosage and frequency ofrefills

-which would be useful to the County's "defense" -have already been turned over in their entirety.

Thus, the County is on a fishing expedition.

46. Petitioner, as the surviving spouse and party representative of Mrs. Lauren Smith's

estate, does not consent to the release of his wife's mental health records and now seeks equitable

relief in the form of a Declaratory Judgment that said records are confidential and privileged and

a Temporary Restraining Order, Temporary Injunction, and Permanent Injunction, requesting that

the Court preventing Respondents from enforcing its orders compelling production and disclosure 0 ~ of said mental health records and to order the Respondents to vacate its orders granting a subpoena 0 N

~o and compelling production of the privileged and confidential mental health records of Mrs. Smith. o:s 0.. 00 00 EVIDENCE IN SUPPORT OF RELIEF REQUESTED \0 °' 0 '

HEALTH RECORDS, ORDER, AND SUBPOENA

EXHIBITB : PETITIONER'S OBJECTION TO SUBPOENA REQUEST

EXHIBITC : COUNTY'S MOTION TO COMPEL PRODUCTION OF MENTAL HEALTH

RECORDS

EXHIBIT D : PETITIONER'S RESPONSE TO MOTION TO COMPEL

EXHIBIT E : PETITIONER'S MOTION FOR RECONSIDERATION AND TO VACATE SUBPOENA

EXHIBIT F: ADMINISTRATIVE LAW JUDGE'S ORDER COMPELLING PRODUCTION OF

MENTAL HEALTH RECORDS

EXHIBIT G: TEXAS ADMINISTRATIVE CODE, SECTION 142.12

EXHIBIT H : TEXAS HEALTH AND SAFETY CODE

EXHTBJT I: DECLARATION OF GERRI BAKER

EXHIBIT J : DENIAL OF LIABILITY/COMPENSABILITY

CAUSES OF ACTION

Declaratory Judgment

48. All factual allegations set forth above are incorporated by reference in support of

this cause of action . 0 .... N 49 . Petitioner asks that the Court determine and declare: - ,,.,0 Ill ~ a. The mental health records and progress notes of Mrs. Lauren Brittane Smith, sought 0.. I by the County from Dr. John Marcellus ("Mental Health Records"), consist of 00 00 confidential communications between a patient and a professional. \0 °'0 ~ r-- b. The Mental Health Records include d~tails regarding the patient's identity, ;_; diagnosis, evaluation, or treatment, created and maintained by a professional, as Ill .c defined under the Health and Safety Code, Section 611 .002(a). E :::, z cIll E :::, u 0 Cl -0

d. The Mental Health Records are confidential and privileged pursuant to Texas Rules of Evidence, Rules 509-510, and may only be disclosed as permitted by these rules or the case law interpreting these rules;

e. Disclosure of the Mental Health Records in the current administrative proceeding is only authorized under Texas Health and Safety Code, Sections 611.004, 611.0041, or 611.045, as outlined in Section 611.002(b).

f. Texas Health and Safety Code, Sections 611 .004 and 611 .0041 governs disclosure, whether permissive or mandatory, in contexts "other than Judicial or Administrative Proceedings," and therefore, do not apply to the current matter which is pending in an administrative proceeding;

g. Texas Health and Safety Code, Section 611.045 (Right to Mental Health Record) provides an independent right of access to Mental Health Records solely to the patient;

h. The Administrative Law Judge's order dated September 19, 2024, and the resulting subpoena, exceed the express legislative authority delegated to the Texas Department of Insurance, Division of Workers' Compensation as it does not summon or compel appearance or production of evidence or testimony at a deposition or hearing, as required by the Texas Administrative Code, Section 142.12;

1. The Administrative Law Judge's order dated September 19, 2024, which granted an administrative subpoena to produce, and disclose, Mrs. Smith's Mental Health Records violates Section 611.002 of the Health and Safety Code; and,

J. The Administrative Law Judge's order dated October 30, 2024, which granted the 0 N County's Motion to Compel production and disclosure of Mrs . Smith's Mental 4-, 0 Health Records violates Section 611 .002 of the Health and Safety Code. '<:I" II) bl) Ol k. The Administrative Law Judge's orders, as detailed in subsection (h), (i), and G) c.. violate Petitioners' rights to privilege and confidentiality as codified in the Texas 00 00 I.D Health and Safety Code, Section 611.002, as well as the Texas Rules of Evidence, °' 0 Rules 509-510. - '<:I" r---

i..: II) ..0 E :::, z..... C: II)

E :::, u 0 0 "0 II) !.l: '€ Page 14 of 20 II) u INJUNCTIVE RELIEF

Temporary Restraining Order, Temporary Injunction, and Permanent Injunction

50. Petitioner will suffer immediate and irreparable harm, loss, and damage in the form

of improper disclosure, as recognized by the Texas Health and Safety Code Section 611 .005

("Legal Remedies for Improper Disclosure" creating an independent cause of action for damages)

of his wife's mental health records directly resulting from Respondents' wrongful acts unless a

Temporary Restraining Order is entered in this matter.

51 . There is an imminent danger that Petitioner will continue to incur immediate and

irreparable injury, loss, and damage if the Respondents are not ordered to refrain from these

actions. Petitioner has no adequate remedy at law due to the nature of the Administrative Subpoena

at issue and the lack of an alternative remedy in the Administrative process. See In re Fort Worth

Children:,; Hops., 100 S.W.3d 582, 587 (Tex. App . - Fort Worth, 2003, orig. proceeding) ("A

discovery order is improper if it compromises a person's right to possible claims of privilege or

mandates the disclosure of privileged information that exceeds the scope of discovery" and

" [r]emedy by appeal in that case is ineffective because, once revealed, the documents cannot be

protected.").

52. The irreparable injury which Petitioner seeks to avoid by obtaining equitable relief 0 ~ arises from the very nature of the privilege and confidentiality that attaches to the Mental Health 0 \/')

11.) 01) Records being sought by the County and ordered disclosed by Respondents. The Legislature has "' 0.. I 00 00 gone so far as to explicitly protect these Mental Health Records except in very limited '-a °' 0 '

Hops., 100 S.W.3d 582, 587 (Tex. App. - Fort Worth, 2003, orig. proceeding) ("A discovery order

is improper if it compromises a person's right to possible claims of privilege or mandates the

disclosure of privileged information that exceeds the scope of discovery" and "[r]emedy by appeal

in that case is ineffective because, once revealed, the documents cannot be protected.").

53. Likely, the County will be utilizing the same expert witness 2 at the de novo judicial

review of this matter, and even if a subsequent Court finds the Mental Health Records (or the

information contained therein) inadmissible pursuant to the Texas Rules of Evidence, Rule 509-

510, the County and its expert(s) will already have reviewed these Mental Health Records by way

of this disclosure occurring at the administrative phase pursuant to Respondents' orders.

54. There is a strong probability that Petitioner has a meritorious right of recovery

against Respondents should the improper disclosure occur given the facts and legal framework

outlined above. While the disclosure has not yet occurred, the risk of improper disclosure and

resulting irreparable harm - given the scope of administrative subpoena, and the steps taken by the

County to get the Mental Health Records via the subpoena - is substantial enough to warrant

seeking the Court's immediate relief. Due to the difficulty of precisely measuring any monetary

damages incurred as a result ofimproper disclosure of protected Mental Health Records, injunctive 0 N <..., 0 relief is required to adequately limit its damages, and to prevent future injury. '-0

0 bl) 55. Petitioner respectfully requests the Court issue a temporary restraining order and to o:I c.. I 00 00 grant such other injunctive relief against Respondents, and all those in active concert and '-0 °' 0 'Sj- t--- participation with it, to prevent the improper disclosure of his wife's Mental Health Records in ;..; 0 .0 violation of Texas law. E ;:I z c(1)

E ;:I 2 (.) 0 Even if they change expert witnesses, the Mental Health Records will already be in possession of the County. Cl -0 0 i.;:: ·-e0 Page 16 of 20 u Injunctive Relief Sought:

56. Petitioner seeks a temporary restraining order that Respondents, and those persons

in active concert or participation with Respondents who receive notice of this Order, by personal

service, through their counsel of record, or otherwise, including facsimile transmission or email,

be immediately ordered to refrain from directly or indirectly :

a. disclosing or using any of Lauren Smith's Mental Health Records from Dr. John Marcellus;

b. ordering, requesting, or seeking to obtain any of Lauren Smith's Mental Health Records from Dr. John Marcellus;

c. enforcing the orders of Ms. Francesca Okonkwo, Administrative Law Judge, dated September 19, 2024, and October 30, 2024, granting the administrative subpoena for Lauren Smith's records from Dr. John Marcellus and compelling production and disclosure of Lauren Smith's records from Dr. John Marcellus, respectively; and,

d. sanctioning, or seeking to impose sanctions, or any other type of administrative penalty or recourse against Petitioner for withholding consent to provide or produce the privileged records pertaining to Mrs. Lauren Brittane Smith from Dr. John Marcellus.

57. Petitioner further seeks a temporary injunction and, upon final trial hereof, a

permanent injunction as set forth herein.

58. Unless they are enjoyed, the Respondents, and those acting m concert with

Respondents, have made it apparent they will continue to seek to obtain Lauren Smith's Mental 0 N .....0 c--- Health Records in violation of Texas Law. If not restrained, these actions will cause, and continue 0 bl) «I c.. to cause, imminent and irreparable harm for which there is no adequate remedy at law. In the 00 00 '-0 absence of a temporary restraining order and an injunction, Respondents, and the County, will °' 0 -.::I" c--- continue to engage in activities directly contrary to the Legislative protections and privileges to ...:0 .c § shield the improper disclosure of Mental Health Records. z 'i:0 E ::l u 0 Cl "Cl 0 i.= "€ Page 17 of20 0 u 59. Should the improper disclosure occur, Petitioner has a probable right of recovery

against Respondents, and others, for the improper disclosure of said Mental Health Records. •

60. Petitioner has provided Respondents with sufficient notice of this application and

the hearing on the merits, consistent with Texas Rule of Civil Procedure 681 .

61. Petitioner is willing and able to post bond, as ordered by the Court, in support of

any injunctive order issued by the Court. However, given the nature of this action is solely for

equitable relief and there is no amount in controversy, Petitioner would ask the Court waive the

necessity of posting a bond.

NOTICE PURSUANT TO TEXAS RULE OF CIVIL PROCEDURE 193.7

62. Please take notice that pursuant to Texas Rule of Civil Procedure Section 193 .7,

Petitioner intend to use any and all documents produced in response to written discovery by

Respondents, all other parties to this action, against such party in any pretrial proceeding and in

trial of this cause.

WHEREFORE, PREMISES CONSIDERED, Petitioner pray that Respondents Fort

Bend County be cited to appear and answer herein and that upon trial or final hearing Petitioner

~ has judgment of this Court as follows: 0 00

<1) I. A temporary restraining order; en o:I c.. I 00 00 m. A temporary and permanent injunction; \0 °''SI" 0 n. Declaratory judgment; and ['-..

i.: <1) ..c o. Such other equitable and legal relief to which Petitioner may be justly entitled . E ::s z C: <1)

E ::s (.) 0 a -0 <1) t.::: '€<1) Page 18 of 20 u Respectfully submitted,

Isl Russell L. Morris Russell L. Morris State Bar No. 24099150 Andrew W. Bruce State Bar No. 24113627 Pablo A Franco State Bar No. 24121625 MCBRYDE FRANCO, PLLC 11000 Richmond Avenue, Suite 350 Houston, TX 77042 (713) 223-7699 (512) 691-9072 [facsimile] serv.russell@mf-txlaw.com

ATTORNEYS FOR PETITIONER

0 N '- 0

°'

;,_;

E ::I u 0 Cl -0

Joshua David Heiliger,

Pursuant to Texas Civil Practice and Remedies Code Section 132.001, an unsworn declaration may be used in lieu of a written sworn declaration, ver?fication, cert~fication, oath or affidavit required by statute or reqzdred by rule, order or requirement adopted as provided by law.

"My name is Joshua David Heiliger, my date of birth is _2_/_9_/7_3_ _ _ _ _., and my address is 1748 _ _ _Nina _ _Le« Houston Tx 77018 _, _________________ ,an d _ Harris _ _ _ _ _ __

(Street) (City) (State) (Zip Code) (Country)

I declare under penalty of perjury that the foregoing is true and correct.

Executed in Harris County, State of Texas , on the _6__ day of November 2024.

0 ~0 Declarant" 0 N 0 bl)

"' 0.

00 00 \0 °''SI' 0 r--

..:0 ..0 E ::I z c0 E ::I u 0 a "i:::l 0 l+:: '€ Page 20 of 20 0 u I, Marilyn Burgess, District Clerk of Harris County, Texas certify that this is a true and, correct copy of the original record filed and or recorded in my office, electronically or hard copy, as it appears on this date. Witness my official hand and seal of office this June 11. 2025

Certified Document Number: 117409688 Total Pages: 20

Marilyn Burgess, DISTRICT CLERK HARRIS COUNTY, TEXAS

In accordance with Texas Government Code 51.301 and 406.013 electronically transmitted authenticated documents are valid. If there is a question regarding the validity of this document and or seal please e-mail support@hcdistrictclerk.com § 2001.201. Court Enforcement of Subpoena or Commission, TX GOVT § 2001.201

Vernon's Texas Statutes and Codes Annotated Government Code (Refs & Annas) Title 10. General Government (Refs & Annas) Subtitle A. Administrative Procedure and Practice Chapter 200 l. Administrative Procedure (Refs & Annas) Subchapter H. Court Enforcement (Refs & Annas)

V.T.C.A ., Government Code§ 2001.201

§ 2001.20 I. Court Enforcement of Subpoena or Commission

Currentness

(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.

(b) A court that dete1mines that good cause exists for the issuance of the subpoena or commission shall order compliance with the subpoena or co1TI1Tiission. The court may hold in contempt a person who does not obey the order.

Credits Added by Acts 1993, 73rd Leg., ch. 268 , § I, eff. S~pt. I, 1993 .

V. T. C. A., Government Code§ 2001.201, TX GOVT§ 2001.201 CmTent through legislation effective May 21, 2025, of the 2025 Regular Session of the 89th Legislature. Some statute sections may be more current, but not necessarily complete through the whole Session. See credits for details.

E nd of Document ti, 202 5 Th omson Re uters. No c laim lo o ri g inal U.S. Go vernment Wo rks.

WESTL AW © 2025 Thomson Reute rs. No claim to miginal U.S. Government Works .

TAB J § 611.001. Definitions, TX HEALTH & S § 611.001

Vernon's Texas Statutes and Codes Annotated Health and Safety Code (Refs & Annas) Title 7 . Mental Health and Intellectual Disability Subtitle E. Special Provisions Relating to Mental Illness and Intellectual Disability Chapter 611. Mental Health Records (Refs & Annas)

V.T.C.A., Health & Safety Code§ 611.001

§ 611.001. Definitions

In this chapter:

(I) "Patient" means a person who consults or is interviewed by a professional for diagnosis, evaluation, or treatment of any mental or emotional condition or disorder, including alcoholism or drug addiction.

(2) "Professional" means:

(A) a person authorized to practice medicine in any state or nation;

(B) a person licensed or certified by this state to diagnose, evaluate, or treat any mental or emotional condition or disorder; or

(C) a person the patient reasonably believes is authorized, licensed, or certified as provided by this subsection.

Credits Added by Acts I 991 , 72nd Leg. , ch . 76, § 1, eff. Sept. 1, 1991.

Editors' Notes

REVISOR'S NOTE

2017 Main Volume

The source law refers to a "patient/client." The dual term used by the source law does not add any substance to the source law. Therefore, the revised law omits the reference to "client."

Notes of Decisions (6)

V. T. C. A., Health & Safety Code§ 611.001, TX HEALTH & S § 611 .001

WESTLAW © 2025 Thomson Reute rs. t\lo claim to m iginal U.S. Government Works .

TAB K § 611.001. Definitions, TX HEALTH & S § 611.001

Cuuent through legislation effective May 21, 2025 , of the 2025 Regular Session of the 89th Legislature. Some statute sections may be more current, but not necessarily complete through the whole Session. See credits for details.

E nd of Do cument <

WEST LAW © 2025 Thoms on Reute rs. No cl aim to or-igin al U.S. Gove rnm ent Wmks . 2 § 611.002. Confidentiality of Information and Prohibition ... , TX HEALTH & S § ...

Vernon's Texas Statutes and Codes Annotated Health and Safety Code (Refs & Annos) Title 7. Mental Health and Intellectual Disability Subtitle E. Special Provisions Relating lo Mental Illness and Intellectual Disability Chapter 611. Mental Health Records (Refs & Annos)

V.T.C.A., Health & Safety Code § 611 .002

§ 611.002. Confidentiality of Information and Prohibition Against Disclosure

(a) Communications between a patient and a professional, and records of the identity, diagnosis, evaluation, or treatment of a patient that are created or maintained by a professional, are confidential.

(b) Confidential communications or records may not be disclosed except as provided by Section 611 .004, 611.0041, or61 l .0045.

(b-1) No exception to the privilege of confidentiality under Section 611.004 may be construed to create an independent duty or requirement to disclose the confidential infomrntion to which the exception applies.

(c) This section applies regardless of when the patient received services from a professional.

Credits Added by Acts 1991, 72nd Leg., ch. 76, § I, eff. Sept. I, 1991. Amended by Acts 1993 , 73rd Leg., ch. 903, § I.II , eff Aug. 30, 1993; Acts 2021 , 87th Leg., ch . 633 (H.B. 549), § 1, eff. Sept. I, 2021.

The source law refers to a "patient/client." The revised law substitutes the term "patient" for the reason stated in the revisor's note under Section 611.00 I.

Notes of Decisions (8)

V. T. C. A., Health & Safety Code§ 611.002, TX HEALTH & S § 611.002 Current through legislation effective May 21, 2025, of the 2025 Regular Session of the 89th Legislature. Some statute sections may be more cmTent, but not necessarily complete through the whole Session. See credits for details.

End of Document {', 2025 Thomsun Reuters. No claim 10 nri g inal U.S. Govcrnm~nl Works.

WESTLAW © 2025 Th oms on Reuters . No claim to m igin al U.S. Government Works . § 611.003. Persons Who May Claim Privilege of Confidentiality, TX HEALTH & S § ...

Vernon's Texas Statutes and Codes Annotated Health and Safety Code (Refs & Annos) Title 7. Mental Health and lntellectual Disability Subtitle E. Special Provisions Relating to Mental Illness and lntellectual Disability Chapter 611. Mental Health Records (Refs & Annos)

V .T .C.A., Health & Safety Code§ 611.003

§ 611.003 . Persons Who May Claim Privilege of Confidentiality

(a) The privilege of confidentiality may be claimed by:

(I) the patient;

(2) a person listed in Section 6 l I .004(a)( 4) or (a)(S) who is acting on the patient's behalf; or

(3) the professional, but only on behalf of the patient.

(b) The authority of a professional to claim the privilege of confidentiality on behalf of the patient is presumed in the absence of evidence to the contrary.

Credits Added by Acts 1991 , 72nd Leg. , ch. 76, § 1, eff. Sept. I , 1991.

The source law refers to a " patient/client." The revised law substitutes the term "patient" for the reason stated in the rev is or's note under Section 611.00 l.

Notes of Decisions (I)

V. T. C. A., Health & Safety Code§ 611.003, TX HEALTH & S § 611.003 Current through legislation effective May 21, 2025, of the 2025 Regular Session of the 89th Legislature. Some statute sections may be more current, but not necessarily complete through the whole Session. See credits for details.

End of Document \:· 2025 Thomso n Reuters . No cl aim to o ri gi nal U.S. Government Works.

WESTLAW © 2025 Thomson Reuters . No claim to origina l U.S. Govemment Wo rks. § 611.004. Authorized Disclosure of Confidential Information ... , TX HEALTH & S § ...

Vernon's Texas Statutes and Codes Annotated Health and Safety Code (Refs & Annos) Title 7. Mental Health and Intellectual Disability Subtitle E. Special Provisions Relati ng to Mental Illness and Intellectual Disability Chapter 611. Mental Health Records (Refs & Annos)

V.T.C.A. , Health & Safety Code § 611.004

§ 611 .004. Authorized Disclosure of Confidential Information Other than in Judicial or Administrative Proceeding

(a) A professional may disclose confidential infom1ation only:

(1) to a governmental agency if the disclosure is required or authorized by law;

(2) to medical, mental health, or law enforcement personnel if the professional detem1ines that there is a probability of imminent physical injury by the patient to the patient or others or there is a probability of immediate mental or emotional injury to the patient;

(3) to qualified personnel for management audits, financial audits, program evaluations, or research, in accordance with Subsection (b);

(4) to a person who has the written consent of the patient, or a parent if the patient is a minor, or a guardian if the patient has been adjudicated as incompetent to manage the patient's personal affairs;

(5) to the patient's personal representative if the patient is deceased ;

(6) to individuals, corporations, or governmental agencies involved in paying or collecting fees for mental or emotional health services provided by a professional;

(7) to other professionals and personnel under the professionals' direction who participate in the diagnosis, evaluation, or treatment of the patient;

(8) in an official legislative inquiry relating to a state hospital or state school as provided by Subsection (c);

(9) to designated persons or personnel of a correctional facility in which a person is detained if the disclosure is for the sole purpose of providing treatment and health care to the person in custody;

WESTLAW © 2025 Thomson Reuters. No claim to 01·igi11al U.S . Government Works. § 611.004. Authorized Disclosure of Confidential Information ... , TX HEALTH & S § ...

( I 0) to an employee or agent of the professional who requires mental health care information to provide mental health care services or in complying with statutory, licensing, or accreditation requirements, if the professional has taken appropriate action to ensure that the employee or agent:

(A) will not use or disclose the information for any other purposes; and

(B) will take appropriate steps to protect the information; or

(11) to satisfy a request for medical records of a deceased or incompetent person pursuant to Section 74.05 I(e), Civil Practice and Remedies Code.

(a-I) No civil, criminal, or administrative cause of action exists against a person described by Section 6 l I .00 I (2)(A) or (B) for the disclosure of confidential information in accordance with Subsection (a)(2). A cause of action brought against the person for the disclosure of the confidential information must be dismissed with prejudice.

(b) Personnel who receive confidential information under Subsection (a)(3) may not directly or indirectly identify or otherwise disclose the identity of a patient in a report or in any other manner.

(c) The exception in Subsection (a)(S) applies only to records created by the state hospital or state school or by the employees of the hospital or school. Infonnation or records that identify a patient may be released only with the patient's proper consent.

(d) A person who receives information from confidential communications or records may not disclose the info1mation except to the extent that disclosure is consistent with the authorized purposes for which the person first obtained the information. This subsection does not apply to a person listed in Subsection (a)(4) or (a)(5) who is acting on the patient's behalf.

Credits Added by Acts 1991 , 72nd Leg. , ch . 76 , § I, eff. Sept. 1, 1991. Amended by Acts 1995 , 74th Leg. , ch. 856, § 8, eff. Sept. I, 1995; Acts I 999, 76th Leg., ch. 1264, § I, eff. Sept. l, I 999; Acts 2005 , 79th Leg., ch. 138, § I, eff. Sept. l, 2005; Acts 2021 , 87th Leg., ch. 633 (H.B. 549), § 2, eff. Sept. I, 2021.

Notes of Decisions (20)

V. T. C. A., Health & Safety Code§ 611.004, TX HEALTH & S § 611.004 Current through legislation effective May 21, 2025, of the 2025 Regular Session of the 89th Legislature. Some statute sections may be more current, but not necessarily complete through the whole Session. See credits for details.

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WEST LAW © 2025 Thomson Reute rs. No claim to origin al U.S. Government Works . 2 § 611.0041. Required Disclosure of Confidential Information ... , TX HEALTH & S § ...

Vernon's Texas Statutes and Codes Annotated Health and Safety Code (Refs & Annos) Title 7. Mental Health and Intellectual Disability Subtitle E. Special Provisions Relating to Mental Illness and Intellectual Disability Chapter 61 l. Mental Health Records (Refs & Annos)

V.T.C.A., Health & Safety Code§ 6ll.004l

§ 611.0041 . Required Disclosure of Confidential Information Other than in Judicial or Administrative Proceeding

(a) In this section:

( 1) "Patient" has the meaning assigned by Section 552.0011.

(2) "State hospital" has the meaning assigned by Section 552.0011.

(b) To the extent permitted by federal law, a professional shall disclose confidential infonnation to the descendant ofa patient of a state hospital if:

(I) the patient has been deceased for at least 50 years; and

(2) the professional does not have info1mation indicating that releasing the medical record is inconsistent with any prior expressed preference of the deceased patient or personal representatives of the deceased patient's estate.

(c) A person who receives information from confidential communications or records may not disclose the infonnation except to the extent that disclosure is consistent with the authorized pull)oses for which the person first obtained the information.

Credits Added by Acts 2019, 86th Leg., ch. I 088 (H.B. 190 I), § 1, eff. Sept. I, 2019.

V. T. C. A., Health & Safety Code § 611.0041, TX HEALTH & S § 611.0041 Current through legislation effective May 21, 2025 , of the 2025 Regular Session of the 89th Legislature. Some statute sections may be more current, but not necessarily complete through the whole Session. See credits for details .

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WESTLAW © 2025 Thomson Reuters. No claim to migi11al U.S. Government Works . § 611.0045. Right to Mental Health Record, TX HEALTH & S § 611.0045

Vernon's Texas Statutes and Codes Annotated Health and Safety Code (Refs & Annos) Title 7. Mental Health and Intellectual Disability Subtitle E. Special Provisions Relating to Mental Illness and Intellectual Di sability Chapter 611. Mental Health Records (Refs & Annos)

V .T.C.A., Health & Safety Code § 611.0045

§ 611.0045. Right to Mental Health Record

(a) Except as otherwise provided by this section, a patient is entitled to have access to the content of a confidential record made about the patient.

(b) The professional may deny access to any portion of a record if the professional determines that release of that portion would be harmful to the patient's physical, mental, or emotional health.

(c) If the professional denies access to any po11ion of a record, the professional sha ll give the patient a signed and dated written statement that having access to the record would be haimful to the patient's physical, mental, or emotional health and shall include a copy of the written statement in the patient's records. The statement must specify the portion of the record to which access is denied, the reason for denial, and the duration of the denial.

(d) The professional who denies access to a portion of a record under this section shall redetermine the necessity for the denial at each time a request for the denied portion is made. If the professional again denies access, the professional shall notify the patient of the denial and document the denial as prescribed by Subsection (c).

(e) If a professional denies access to a portion of a confidential record, the professional shall allow examination and copying of the record by another professional if the patient selects the professional to treat the patient for the same or a related condition as the professional denying access.

(f) The content of a confidential record shall be made available to a person listed by Section 6 l 1.004(a)(4) or (5) who is acting on the patient's behalf.

(g) A professional shall delete confidential infonnation about another person who has not consented to the release, but may not delete information relating to the patient that another person has provided, the identity of the person responsible for that information, or the identity of any person who provided infonnation that resulted in the patient's commitment.

(h) If a summary or narrative of a confidential record is requested by the patient or other person requesting release under this section, the professional shall prepare the summary or narrative.

WESTL AW © 2025 Thomson Reuters. No claim to m igin al U.S. Government Works. § 611.0045 . Right to Mental Health Record, TX HEALTH & S § 611.0045

(i) The professional or other entity that has possession or control of the record shall grant access to any po11ion of the record to which access is not specifically denied under this section within a reasonable time and may charge a reasonable fee.

U) Notwithstanding Section I 59.002, Occupations Code, this section applies to the release of a confidential record created or maintained by a professional, including a physician, that relates to the diagnosis, evaluation, or treatment of a mental or emotional condition or disorder, including alcoholism or drug addiction.

(k) The denial of a patient's access to any portion of a record by the professional or other entity that has possession or control of the record suspends, until the release of that po1tion of the record, the running of an applicable statute of limitations on a cause of action in which evidence relevant to the cause of action is in that portion of the record.

Credits Added by Acts 1993 , 73rd Leg. , ch. 903, § 1.12, eff. Aug. 30, 1993 . Amended by Acts 2001, 77th Leg., ch. 1420, § 14.806, eff. Sept. I, 200 1.

V. T. C. A., Health & Safety Code§ 611.0045, TX HEALTH & S § 611.0045 Current through legislation effective May 21 , 2025, of the 2025 Regular Session of the 89th Legislature. Some statute sections may be more current, but not necessarily complete through the whole Session. See credits for details.

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WESTLAW © 2025 Thomso11 Reuters. No cla im to 01·ig i11al U.S. Gove rnm ent Works. 2 § 611.005. Legal Remedies for Improper Disclosure or... , TX HEALTH & S § ...

Vernon's Texas Statutes and Codes Annotated Health and Safety Code (Refs & Annos) Title 7. Mental Health and Intellectual Disability Subtitle E. Special Provisions Relating to Mental Illness and Intellectual Disability Chapter 611. Mental Health Records (Refs & Annas)

V.T.C.A., Health & Safety Code§ 611.005

§ 611.005. Legal Remedies for Improper Disclosure or Failure to Disclose

(a) A person aggrieved by the improper disclosure of or failure to disclose confidential communications or records in violation of this chapter may petition the district court of the county in which the person resides for appropriate relief, including injunctive relief. The person may petition a district comt of Travis County if the person is not a resident of this state.

(b) In a suit contesting the denial of access under Section 611.0045, the burden of proving that the denial was proper is on the professional who denied the access.

(c) The aggrieved person a!so has a civi I cause of action for damages.

Credits Added by Acts 1991 , 72nd Leg. , ch. 76, § 1, eff. Sept. I, 199 l. Amended by Acts 1993, 73rd Leg. , ch. 903 , § 1.13 , eff. Aug. 30, 1993.

Notes of Decisions (4)

V. T. C. A., Health & Safety Code§ 611.005, TX HEALTH & S § 611.005 Current through legislation effective May 21, 2025, of the 2025 Regular Session of the 89th Legislature. Some statute sections may be more current, but not necessarily complete through the whole Session. See credits for details.

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WESTLAW © 2025 Thomson Reuters. No cla im to origin al U.S. Government Works . § 611.006. Authorized Disclosure of Confidential Information ... , TX HEALTH & S § ...

Vernon's Texas Statutes and Codes Annotated Health and Safety Code (Refs & Annos) Title 7. Mental Health and Intellectual Di sability Subtitle E. Special Provisions Relating to Mental Illness and Intellectual Di sability Chapter 611. Mental Health Records (Refs & Annos)

V.T.C.A., Health & Safety Code§ 611 .006

§ 611.006. Authorized Disclosure of Confidential Information in Judicial or Administrative Proceeding

(a) A professional may disclose confidential infomrntion in:

( 1) a judicial or administrative proceeding brought by the patient or the patient's legally authorized representative against a professional, including malpractice proceedings;

(2) a license revocation proceeding in which the patient is a complaining witness and in which disclosure is relevant to the claim or defense of a professional;

(3) a judicial or administrative proceeding in which the patient waives the patient's right in writing to the privilege of confidentiality of infomrntion or when a representative of the patient acting on the patient's behalf submits a written waiver to the confidentiality privilege;

(4) a judicial or administrative proceeding to substantiate and collect on a claim for mental or emotional health services rendered to the patient;

(5) a judicial proceeding if the judge finds that the patient, after having been informed that communications would not be privileged, has made communications to a professional in the course of a court-ordered examination relating to the patient's mental or emotional condition or disorder, except that those communications may be disclosed only with respect to issues involving the patient's mental or emotional health;

(6) a judicial proceeding affecting the parent-child relationship;

(7) any criminal proceeding, as othe1wise provided by law;

(8) a judicial or administrative proceeding regarding the abuse or neglect, or the cause of abuse or neglect, of a resident of an institution, as that term is defined by Chapter 242;

(9) a judicial proceeding relating to ·a will if the patient's physical or mental condition is relevant to the execution of the will;

WEST LAW © 2025 Thomso11 Reute rs . No claim to 01·igi11al U.S. Govemme11t Wo1·ks. § 611.006. Authorized Disclosure of Confidential Information ... , TX HEALTH & S § ...

(10) an involuntary commitment proceeding for court-ordered treatment or for a probable cause hearing under:

(A) Chapter 462;

(B) Chapter 574; or

(C) Chapter 593; or

(11) a judicial or administrative proceeding where the court or agency has issued an order or subpoena.

(b) On granting an order under Subsection (a)(5), the court, in detennining the extent to which disclosure of all or any part of a communication is necessary, shall impose appropriate safeguards against unauthorized disclosure.

Credits Added by Acts 1995, 74th Leg. , ch. 856, § 9, eff. Sept. 1, 1995 .

REPEAL OF (A)(6)

Notes of Decisions (3)

V. T. C. A., Health & Safety Code§ 611.006, TX HEALTH & S § 611.006 Current through legislation effective May 21 , 2025 , of the 2025 Regular Session of the 89th Legislature. Some statute sections may be more current, but not necessarily complete through the whole Session. See credits for details .

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WESTLAW © 2025 Thomson Reuter·s. f\lo claim to migi11al U.S. Government Works . 2 § 611.007. Revocation of Consent, TX HEALTH & S § 611.007

Vernon's Texas Statutes and Codes Annotated Health and Safety Code (Refs & Annas) Title 7. Mental Health and Intellectual Disability Subtitle E. Special Provisions Relating to Mental Illness and Intellectual Disability Chapter 611. Mental Health Records (Refs & Annos)

V.T.C.A., Health & Safety Code § 611.007

§ 611.007. Revocation of Consent

(a) Except as provided by Subsection (b), a patient or a patient's legally authorized representative may revoke a disclosure consent to a professional at any time. A revocation is valid only if it is written, dated, and signed by the patient or legally authorized representative.

(b) A patient may not revoke a disclosure that is required for purposes of making payment to the professional for mental health care services provided to the patient.

(c) A patient may not maintain an action against a professional for a disclosure made by the professional in good faith reliance on an authorization if the professional did not have notice of the revocation of the consent.

Credits Added by Acts 1995, 74th Leg., ch. 856, § 9, eff. Sept. I , 1995.

V. T. C. A., Health & Safety Code§ 611.007, TX HEALTH & S § 611.007 Current through legislation effective May 21, 2025, of the 2025 Regular Session of the 89th Legislature. Some statute sections may be more cunent, but not necessmily complete through the whole Session. See credits for details.

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WESTLAW © 2025 Thomson Reuters. No claim to miginal U.S . Government Works. § 611.008. Request by Patient, TX HEALTH & S § 611.008

Vernon's Texas Statutes and Codes Annotated Health and Safety Code (Refs & Annos) Title 7. Mental Health and intellectual Disability Subtitle E. Special Provisions Relating to Mental Illness and Intellectual Disability Chapter 61 L. Mental Heallh Records (Refs & Annas)

V.T.C.A., Health & Safety Code§ 611.008

§ 61 l.008. Request by Patient

(a) On receipt of a written request from a patient to examine or copy all or part of the patient's recorded mental health care information, a professional, as promptly as required under the circumstances but not later than the 15th day after the date of receiving the request, shall:

( l) make the information available for examination during regular business hours and provide a copy to the patient, if requested; or

(2) infonn the patient if the infomrntion does not exist or cannot be found.

(b) Unless provided for by other state law, the professional may charge a reasonable fee for retrieving or copying mental health care information and is not required to permit examination or copying until the fee is paid unless there is a medical emergency.

(c) A professional may not charge a fee for copying mental health care info1mation under Subsection (b) to the extent the fee is prohibited under Subchapter M, Chapter 161 . 1

Credits Added by Acts 1995, 74th Leg. , ch. 856, § 9, eff. Sept. l , 1995.

Footnotes

VT.C.A., Health & Safety Code § 161.20 l et seq.

V. T. C. A., Health & Safety Code§ 611 .008, TX HEALTH & S § 611.008 Current through legislation effective May 21, 2025, of the 2025 Regular Session of the 89th Legislature. Some statute sections may be more current, but not necessarily complete through the whole Session. See credits for details.

End of Dorumcnl

WESTLAW © 2025 Thomson Reuters. No cla im to 01·iginal U.S. Government Wor ks. Rule 510. Mental Health Information Privilege in Civil Cases, TX R EVID Rule 510

Vernon's Texas Rules Annotated Texas Rules of Evidence (Refs & Annos) Article V. Privileges (Refs & An nos)

TX Rules of Evidence, Rule 510

Rule 510. Mental Health Information Privilege in Civil Cases

(a) Definitions. In this rule:

(1) A "professional" is a person:

(A) authorized to practice medicine in any state or nation;

(B) licensed or certified by the State of Texas in the diagnosis, evaluation, or treatment of any mental or emotional disorder;

(C) involved in the treatment or examination of drug abusers; or

(D) who the patient reasonably believes to be a professional under this rule.

(2) A "patient" is a person who:

(A) consults or is interviewed by a professional-for diagnosis, evaluation, or treatment of any mental or emotional condition or disorder, including alcoholism and drug addiction; or

(B) is being treated voluntarily or being examined for admission to voluntary treatment for drug abuse.

(3) A "patient's representative" is:

(A) any person who has the patient's written consent;

(B) the parent of a minor patient;

(C) the guardian of a patient who has been adjudicated incompetent to manage personal affairs; or

(D) the personal representative of a deceased patient.

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TAB L Rule 510. Mental Health Information Privilege in Civil Cases, TX R EVID Rule 510

(4) A communication is "confidential" if not intended to be disclosed to third persons other than those:

(A) present to further the patient's interest in the diagnosis, examination, evaluation, or treatment;

(8) reasonably necessa1y to transmit the communication; or

(C) participating in the diagnosis, examination, evaluation, or treatment under the professional's direction, including members of the patient's family.

(b) General Rule; Disclosure.

(1) In a civil case, a patient has a privilege to refuse to disclose and to prevent any other person from disclosing:

(A) a confidential communication between the patient and a professional; and

(8) a record of the patient's identity, diagnosis, evaluation, or treatment that is created or maintained by a professional.

(2) In a civil case, any person--other than a patient's representative acting on the patient's behalf--who receives infonnation privileged under this rule may disclose the infonnation only to the extent consistent with the purposes for which it was obtained.

(c) Who May Claim. The privilege may be claimed by:

(1) the patient; or

(2) the patient's representative on the patient's behalf.

The professional may claim the privilege on the patient's behalf--and is presumed to have authority to do so.

(d) Exceptions. This privilege does not apply:

(1) Proceeding Against Professional. If the communication or record is relevant to a claim or defense in:

(A) a proceeding the patient brings against a professional; or

(8) a license revocation proceeding in which the patient is a complaining witness.

WESTLAW © 2025 Thom son Reuters . No claim to 01·igin al U.S. Government Works. 2 Rule 510. Mental Health Information Privilege in Civil Cases, TX R EVID Rule 510

(2) Written Waiver. If the patient or a person authmized to act on the patient's behalf waives the privilege in writing.

(3) Action to Collect. In an action to collect a claim for mental or emotional health services rendered to the patient.

(4) Comm1111icutio11 Mude in Court-Ordered Ext1111i11atio11. To a communication the patient made to a professional during a court-ordered examination relating to the patient's mental or emotional condition or disorder if:

(A) the patient made the communication after being informed that it would not be privileged;

(B) the communication is offered to prove an issue involving the patient's mental or emotional health; and

(C) the court imposes appropriate safeguards against unauthorized disclosure.

(5) Party Relies 011 Patient's Co11ditio11. If any party relies on the patient's physical, mental, or emotional condition as a part of the paity's claim or defense and the communication or record is relevant to that condition.

(6) Abuse or Neglect of "/11stit11tio11" Resident. In a proceeding regarding the abuse or neglect, or the cause of any abuse or neglect, of a resident of an "institution" as defined in Tex. Health & Safety Code § 242.002.

Credits Eff. March I, 1998. Amended by orders of Supreme Court March I 0, 2015 and Court of Criminal Appeals March 12, 2015 , eff. April I, 20 I 5. Amended by Supreme Court order of June 14, 2016, eff. June 14, 20 I 6.

NOTES AND COMMENTS Comment to 1998 change: This comment is intended to inform the construction and application of this rule. This rnle governs disclosures of patient-professional communications only in judicial or administrative proceedings. Whether a professional may or must disclose Such communications in other circumstances is governed by TEX.HEALTH & SAFETY CODE ANN. § § 611.001-611.008. Fom1er subparagraph (d)( 6) of the Civil Evidence Rules, regarding disclosures in a suit affecting the parent-child relationship, is omitted, not because there should be no exception to the privilege in suits affecting the parent-child relationship, but because the exception in such suits is properly considered under subparagraph (d)(5), as construed in R.K. v. Ramirez, 887 S.W.2d 836 (Tex. 1994). In determining the proper application of an exception in such suits, the trial comt must ensure that the precise need for the information is not outweighed by legitimate privacy interests protected by the privilege. Subparagraph (d) does not except from the privilege information relating to a nonpmty patient who is or may be a consulting or testifying expe1t in the suit.

Comment to 2015 Restyling: The mental-health-inf01111ation privilege in civil cases was enacted in Texas in 1979. Tex . Rev. Civ. Stat. art. 5561 h (later codified at Tex. Health & Safety Code § 611 .00 I et seq.) provided that the privilege applied even if the patient had received the professional's services before the statute's enactment. Because more than thirty years have now passed, it is no longer necessary to burden the text of the rule with a statement

WESTLAW © 2025 Thomson Reuters. No claim to 01·igi11a l U.S. Government Works. 3 Rule 510. Mental Health Information Privilege in Civil Cases, TX R EVID Rule 510

regarding the privilege's retroactive application. But deleting this statement from the rule's text is not intended as a substantive change in the law.

Tex . Health & Safety Code ch. 611 addresses confidentiality rules for communications between a patient and a mental- health professional and for the professional's treatment records. Many of these provisions apply in contexts other than court proceedings. Reconciling the provisions of Rule 510 with the parts of chapter 611 that address a mental-health- information privilege applicable to court proceedings is beyond the scope of the restyling project.

Notes of Decisions (93)

O'CONNOR'S NOTES Caution: TRE 510 is affected by Fam. Code §261.10 I.

O'CONNOR'S CROSS REFERENCES See also O'Connor's Texas Rules, "Asserting privileges," ch. 6-A, § 18.2; O'Connor's Texas Rules, "Scope of Discovery," ch. 6-B, § 1 et seq.; O'Co1111or's Texas Rules, "Medical Records," ch. 6-J, § I et seq.; Brown & Rondon, Texas Rules of Evidence Hant/book, Rule 510; O'Connor's Texas Forms, FORM 5E:l.

See also CCP art. 38. 10 l.

O'CONNOR'S ANNOTATIONS /11 re Richardson Motorsports, Ltd. , 690 S.W.3d 42, 50 (Tex.2024). See annotation under TRE 509.

R.K. v. Ramirez, 887 S.W.2d 836, 843 (Tex.1994). "As a general mle, a mental condition will be a 'part' of a claim or defense if the pleadings indicate that the jury must make a factual determination concerning the condition itself."

Groves v. Gabriel, 874 S. W.2d 660, 661 (Tex.1994). "Because [P] alleges severe emotional damages, including ' post-traumatic stress disorder,' [she] waived the privilege as to any medical records relevant to her claim for emotional damages ." See also Ginsberg 1•. Fiph Ct. of Appeals, 686 S.W.2d I 05, I 07 (Tex.1985).

Garza v. Garza, 217 S. W.3d 538, 555 (Tex.App.--San Antonio 2006, no pet.). Mother's medical records were not privileged because mother's "medical condition relating to her personality and bipolar disorders was relevant to the issue of whether appointing her [SMC] was in her children's best interests. Both parties' medical and mental conditions were relevant to the jury's detennination of which party should be named as the conservator. "

In re Arriola, 159 S.W.3d 670, 675-76 (Tex.App.--Corpus Christi 2004, orig. proceeding). See annotation under TRE 509.

Rules of Evid., Rule 510, TX R EVID Rule 510 Current with amendments received through April 1, 2025. Some rules may be more current, see credits for details.

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WESTLAW © 2025 Thomso11 Reute1·s. No claim to 01·igi11al U.S. Government Works . 4 § 402.001. Administration of System: Texas Department of... , TX LABOR§ 402.001

Vernon's Texas Statutes and Codes Annotated Labor Code (Refs & Annos) Title 5. Workers' Compensation (Refs & Annas) Subtitle A. Texas Workers' Compensation Act (Refs & Annas) Chapter 402. Operation and Administration of Workers' Compensation System (Refs & Annas) Subchapter A. General Administration of System ; Workers' Compensation Division

V.T.C.A., Labor Code§ 402.001

§ 402.00L Administration of System: Texas Department oflnsurance: Workers' Compensation Division

(a) Except as provided by Section 402.002 , the Texas Department of Insurance is the state agency designated to oversee the workers' compensation system of this state.

(b) The division of workers' compensation is established as a division within the Texas Department of Insurance to administer and operate the workers' compensation system of this state as provided by this title.

Credits Acts I 993 , 73rd Leg. , ch. 269, § !, eff Sept. I , 1993. Amended by Acts 1995, 74th Leg., ch. 980, § 1.02, eff Sept. I , 1995; Acts 2005, 79th Leg. , ch. 265 , § 1.003 , eff. Sept. I , 2005.

O'CONNOR'S NOTES Source: TRCS ait. 8308-2.0 I (b )-( d) .

O'CONNOR'S ANNOTATIONS Stone v. DWC, No. 13-17-00620-CV, 2018 WL 1959784 (Tex.App.--Corpus Christi 2018, pet. denied) (memo op. ; 4-26-18). Claimant "points to nothing in the Labor Code, or any other statute or constitutional provision for that matter, showing that sovereign immunity has been waived for claims made directly against the [DWC] by a worker's compensation claimant, and we find none. Additionally, at least two sister com1s have held that the [DWC] is immune from suit."

V. T. C. A., Labor Code§ 402.001, TX LABOR§ 402.001 Cun-ent through legislation effective May 21, 2025, of the 2025 Regular Session of the 89th Legislature. Some statute sections may be more current, but not necessarily complete through the whole Session. See credits for details.

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TAB M § 402.00114. Duties of Division; Single Point of Contact, TX LABOR§ 402.00114

Vernon's Texas Statutes and Codes Annotated Labor Code (Refs & Annos) Title 5. Workers' Compensation (Refs & Annos) Subtitle A. Texas Workers' Compensation Act (Refs & Annos) Chapter 40:2. Operation and Administration of Workers' Compensation System (Refs & Annos) Subchapter A. General Admiuislration of System ; Workers' Compensation Division

V .T.C.A., Labor Code§ 402.00114

§ 402.00114. Duties of Division; Single Point of Contact

(a) In addition to other duties required under this title, the division shall:

( 1) regulate and administer the business of workers' compensation in this state; and

(2) ensure that this title and other laws regarding workers' compensation are executed.

(b) To the extent determined feasible by the commissioner, the division shall establish a single point of contact for injured employees receiving services from the division.

Credits Added by Acts 2005, 79th Leg., ch. 265 , § 1.004, eff. Sept. I , 2005.

Notes of Decisions ( l)

V. T. C. A., Labor Code§ 402.00114, TX LABOR§ 402.00114 Current through legislation effective May 21, 2025, of the 2025 Regular Session of the 89th Legislature. Some statute sections may be more cmTent, but not necessarily complete through the whole Session. See credits for details .

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TAB N § 410.002. Law Governing Liability Proceedings, TX LABOR§ 410.002

Vernon's Texas Statutes and Codes Annotated Labor Code (Refs & Annas) Title 5. Workers' Compensation (Refs & Annas) Subtitle A. Texas Workers' Compensation Act (Refs & Annos) Chapter 410. Adjudication of Disputes (Refs & Annos) Subchapter A. General Provisions (Refs & Annas)

V.T.C.A., Labor Code§ 410.002

§ 410.002 . Law Governing Liability Proceedings

A proceeding before the division to detem1ine the liability of an insurance carrier for compensation for an injury or death under this subtitle is governed by this chapter.

Credits Acts 1993, 73rd Leg., ch. 269, § l , eff. Sept. 1, 1993. Amended by Acts 2005, 79th Leg. , ch. 265, § 3.150, eff. Sept. l , 2005 .

Notes of Decisions ( 17)

O'CONNOR'S NOTES Source: TRCS art. 8308-6.0l(b).

V. T. C. A., Labor Code§ 410.002, TX LABOR§ 410.002 Current through legislation effective May 21, 2025, of the 2025 Regular Session of the 89th Legislature. Some statute sections may be more cunent, but not necessarily complete through the whole Session. See credits for details.

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TAB O § 410.003. Application of Administrative Procedure and Texas ..., TX LABOR§ 410.003

Vernon's Texas Statutes and Codes Annotated Labor Code (Refs & Annos) Title 5. Workers' Compensation (Refs & Annas) Subtitle A. Texas Workers' Compensation Act (Refs & Annas) Chapter 410. Adjudication of Disputes (Refs & Annas) Subchapter A. General Provisions (Refs & Annas)

V.T.C.A., Labor Code§ 410.003

§ 410.003. Application of Administrative Procedure and Texas Register Act

Except as otherwise provided by this chapter, Chapter 200 I, Government Code does not apply to a proceeding under this chapter.

Credits Acts 1993, 73rd Leg., ch. 269, *l , eff. Sept. I, 1993. Amended by Acts 1995, 74th Leg., ch. 76, § 5.95(49), eff. Sept. I, 1995 . O'CONNOR'S NOTES Source: TRCS art. 8308-6.0 I (a).

V. T. C. A., Labor Code§ 410.003, TX LABOR§ 410.003 Current through legislation effective May 21, 2025, of the 2025 Regular Session of the 89th Legislature. Some statute sections may be more current, but not necessarily complete through the whole Session. See credits for details.

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TAB P § 410.157. Rules, TX LABOR§ 410.157

Vernon's Texas Statutes and Codes Annotated Labor Code (Refs & Annos) Title 5. Workers' Compensation (Refs & Annos) Subtitle A. Texas Workers' Compensation Act (Refs & Annos) Chapter 410 . Adjudication of Disputes (Refs & Annos) Subchapter D. Contested Case Hearing (Refs & Annos)

V.T.C.A., Labor Code§ 410. 157

§ 410.157. Rules

The commissioner shall adopt rules governing procedures under which contested case hearings are conducted.

Credits Acts 1993, 73rd Leg. , ch. 269, § I , eff. Sept. I , 1993 . Amended by Acts 2005 , 79th Leg., ch. 265 , § 3.185, eff. Sept. I , 2005.

Notes of Decisions (9)

O'CONNOR'S NOTES Source: TRCS art. 8308-6.3 I ( d).

O'CONNOR'S CROSS REFERENCES See also 28 Tex. Admin. Code ch. 142.

Y. T. C. A., Labor Code§ 410.157, TX LABOR§ 410.157 Current through legislation effective May 21, 2025, of the 2025 Regular Session of the 89th Legislat1ire. Some statute sections may be more cmTent, but not necessarily complete through the whole Session. See credits for details.

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TAB Q § 410.158. Discovery, TX LABOR§ 410.158

Vernon's Texas Statutes and Codes Annotated Labor Code (Refs & Annos) Title 5. Workers' Compensation (Refs & Annos) Subtitle A. Texas Workers' Compensation Act (Refs & Annos) Chapter 410. Adjudication of Disputes (Refs & Annos) Subchapter D. Contested Case Hearing (Refs & Annas)

V.T.C.A. , Labor Code§ 410.158

§ 410.158. Discovery

(a) Except as provided by Section 410.162, discovery is limited to:

(I) depositions on written questions to any health care provider;

(2) depositions of other witnesses as permitted by the administrative law judge for good cause shown; and

(3) interrogatories as prescribed by the commissioner.

(b) Discovery under Subsection (a) may not seek information that may readily be derived from documentary evidence described in Section 410.160. Answers to discovety under Subsection (a) need not duplicate info1111ation that may readily be derived from documentary evidence described in Section 410.160 .

Credits Acts 1993 , 73rd Leg. , ch. 269 , § I, eff. Sept. I , 1993. Amended by Acts 2005 , 79th Leg., ch. 265 , § 3.186, eff. Sept. I, 2005; Acts 2017, 85th Leg. , ch. 839 (H.B. 2111), § 5, eff. Sept. I, 2017.

O'CONNOR'S NOTES Source: TRCS art. 8308 -6.33(a), (c).

O'CONNOR'S CROSS REFERENCES Sec also 28 Tex. Admin. Code § 142.13.

O'CONNOR'S CHARTS REFERENCES See timetable, "Workers ' Compensation Claim."

V. T. C. A., Labor Code § 410.158, TX LABOR § 410.158 Current through legislation effective May 21, 2025, of the 2025 Regular Session of the 89th Legislature. Some statute sections may be more etment, but not necessarily complete through the whole Session. See credits for details.

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TAB R § 410 .158. Discovery, TX LABOR§ 410 .158

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WESTLAW © 2025 Thomson Reuters . No claim to or-iginal U.S. Government V\/01·ks. 2 § 410.162. Additional Discovery, TX LABOR§ 410.162

Vernon's Texas Statutes and Codes Annotated Labor Code (Refs & Annos) Title 5. Workers' Compensation (Refs & Annos) Subtitle A. Texas Workers' Compensation Act (Refs & Annas) Chapter 410_ Adjudication of Disputes (Refs & Annos) Subchapter D. Contested Case Hearing (Refs & Annos)

V.T.CA, Labor Code§ 410 .162

§ 41Q_162. Additional Discovery

For good cause shown, a party may obtain pem1ission from the administrative law judge to conduct additional discovery as necessary_

Credits Acts 1993, 73rd Leg ., ch. 269, § I, eff. Sept. I, 1993. Amended by Acts 2017 , 85th Leg., ch. 839 (I-LB . 2111), § 6, eff. Sept. 1,2017.

O'CONNOR'S NOTES Source: TRCS art 8308-6.33(f).

O'CONNOR'S CROSS REFERENCES See also 28 Tex. Admin. Code §l42 _J3(f) _

Y. TC. A., Labor Code§ 410.162, TX LABOR§ 410 .162 CmTent through legislation effective May 21, 2025, of the 2025 Regular Session of the 89th Legislature. Some statute sections may be more cu1Tent, but not necessari ly complete through the whole Session. See credits for details.

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TAB S § 410.163. Powers and Duties of Administrative Law Judge, TX LABOR§ 410.163

Vernon's Texas Statutes and Codes Annotated Labor Code (Refs & Annos) Title 5. Workers' Compensation (Refs & Annas) Subtitle A. Texas Workers' Compensation Act (Refs & Annas) Chapter 410. Adjudication of Disputes (Refs & Annas) Subchapter D. Contested Case Hearing (Refs & Annas)

V.T.C.A., Labor Code§ 4I0.163

§ 410.163. Powers and Duties of Administrative Law Judge

(a) At a contested case hearing the administrative law judge shall:

(I) 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.

(b) An administrative law judge shall ensure the preservation of the rights of the patties and the full development of facts required for the determinations to be made. An administrative law judge may permit the use of summary procedures, if appropriate, including witness statements, summaries, and similar measures to expedite the proceedings .

. Credits Acts 1993, 73rd Leg. , ch. 269, § l , eff. Sept. I, 1993. Amended by Acts 2017, 85th Leg., ch . 839 (H.B. 211 l), § 7, eff. Sept. I, 2017.

O'CONNOR'S NOTES Source: TRCS ait. 8308-6.34(a), (b).

O'CONNOR'S CROSS REFERENCES See also 28 Tex. Admin. Code§§ 140.4, 142.2.

V. T. C. A., Labor Code § 410.163, TX LABOR § 410.163

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TAB T § 410.163. Powers and Duties of Administrative Law Judge, TX LABOR§ 410.163

CmTent through legislation effective May 21, 2025, of the 2025 Regular Session of the 89th Legislature. Some statute sections may be more cu1Tent, but not necessarily complete through the whole Session. See credits for details.

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WESTLAW © 2025 Thomson Reuters . No claim to 01·igin al U.S. Government Works . 2 § 410.165. Evidence, TX LABOR§ 410.165

Vernon's Texas Statutes and Codes Annotated Labor Code (Refs & Annos) Title 5. Workers' Compensation (Refs & Annos) Subtitle A. Texas Workers' Compensation Act (Refs & Annos) Chapter 410. Adjudication of Disputes (Refs & Annos) Subchapter D. Contested Case Hearing (Refs & Annos)

V.T.C.A., Labor Code§ 410.165

§ 410.165 . Evidence

(a) 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. Conformity to legal rules of evidence is not necessary.

(b) An administrative law judge may accept a written statement signed by a witness and shall accept all written reports signed by a health care provider.

Credits Acts 1993 , 73rd Leg. , ch. 269, § I, eff. Sept. I, 1993. Amended by Acts 2017 , 85th Leg. , ch. 839 (H.B . 2 Ill), § 9, eff. Sept. I, 2017.

O'CONNOR'S NOTES Source: TRCS art. 8308-6.34(e).

O'CONNOR'S CROSS REFERENCES See also 28 Tex. Admin. Code § 142.2.

O'.CONNOR'S ANNOTATIONS Texas Workers' Comp. Ins. Fund v. TWCC, 124 S.W.3d 813 , 823 (Tex .App.--Austin 2003 , pet. denied). "[A)n appeals panel has the authority to perform a factual-sufficiency review."

V. T. C. A., Labor Code§ 410.165, TX LABOR§ 4I0.165 Current through legislation effective May 2 I, 2025, of the 2025 Regular Session of the 89th Legislature. Some statute sections may be more cunent, but not necessarily complete through the whole Session. See credits for details.

Encl of Document '!', 202 5 T homso n Re ut ers. No c laim to o riginal U.S. Go ve rnm cn1 Wo rks.

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TAB U § 410.251. Exhaustion of Remedies, TX LABOR§ 410.251

Vernon's Texas Statutes and Codes Annotated Labor Code (Refs & Annos) Title 5. Workers' Compensation (Refs & Annos) Subtitle A. Texas Workers' Compensation Act (Refs & Annos) Chapter 410. Adjudication of Disputes (Refs & Annos) Subchapter F. Judicial Review--General Provisions

V.T.C.A., Labor Code§ 410 .25 I

§ 410.251. Exhaustion of Remedies

A party that has exhausted its administrative remedies under this subtitle and that is aggrieved by a final decision of the appeals panel may seek judicial review under this subchapter and Subchapter G, 1 if applicable.

Credits Acts 1993 _. 73rd Leg. , ch. 269, § I, eff. Sept. I, 1993 .

Notes of Decisions ( 176)

O'CONNOR'S NOTES Source: TRCS an. 8308 -6.61 (a).

O'CONNOR'S ANNOTATIONS American Motorists Ins. v. Fodge, 63 S.W.3d 80 I, 802 (Tex.200 I). "The important issue in this case is whether a compensation claimant can prosecute a lawsuit against a carrier to recover benefits and damages resulting from a denial of benefits without a prior detem1ination by the [TWCC, now DWC,] that benefits are due her. We hold that she cannot do so. and that her claims must be dismissed or abated, as appropriate. We also hold, however, that she can prosecute her claim that payment of benefits awarded by the [TWCC] was improperly delayed." See also AMS Co11st1: Co. v. /(.H.K. Sc:c~ffolding Houston, Inc. , 357 S.W.3d 30, 38-39 (Tex.App.--Houston [1st Dist.] 2011 , pet. dism'd); In re Texas Mut. Ins. , 321 S. W.3d 655 , 661-62 (Tex.App.--Houston [ 14th Dist.] 2010, orig. proceeding); Pickett v. Texas M11t. Ins., 239 S.W.3d 826, 836 (Tex.App.--Austin 2007, no pet.).

Continental Cas. Ins. v. F1111ctional Restoration Assocs., 19 S.W.3d 393, 398 (Tex.2000). "[T]he requirement that a party be aggrieved by a final decision of the appeals panel [applies] to both [Lab. Code subchs. F and G], and therefore to both [Lab. Code] §§410.255 and 410.301." See also Haddix 1 American Zurich Ins. , 253 S.W.3d 339, 348-49 (Tex.App.--Eastland 2008 , 1•

no pet.); Co11ti11e11tal Cas. Co. v. Rivera, 124 S.W.3d 705,712 (Tex.App.--Austin 2003 , pet. denied).

In re Pre11tis, _ S.W.3d _, 2024 WL 3862953 (Tex.App.--Houston [1st Dist.] 2024. orig. proceeding) (No . 01-23-00616- CV; 8-20-24 ). "[EE] contends that his suit for negligence is proper because whether he was injured in the course and scope of employment is a 'hotly contested' issue that the trial court must first consider. [ilJ To the contrary, if a party is dissatisfied with the outcome of the [TWCA's] administrative process, that aggrieved party may seek judicial review of the agency's decision. Nowhere in the [TWCA] is there an exception allowing [EE] to circumvent this administrative process, nor can the trial court exercise jurisdiction to consider a matter within the exclusive jurisdiction of the [DWC]. A pmty may not seek judicial review

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TAB V § 410.251. Exhaustion of Remedies, TX LABOR§ 410.251

under the [TWCA] without first exhausting his administrative remedies. [f,] [EE 's] argument that he vehemently disputes whether the accident occun-ed while he was in the course and scope of his employment has no impact on the [DWC 's] exclusive jurisdiction. Indeed, it is the [DWC 's] task to discern whether a plaintiff's injuries were sustained in the course and scope of employment."

American Cas. Co. v. B11s/111u111 , 480 S.W.3d 667,671 (Tex.App.-San Antonio 2015 , no pet.). "' A party 's failure to exhaust the administrative remedies provided under Texas's workers' compensation scheme deprives the trial court of jurisdiction over that party's request for judicial review.' Filing an untimely appeal with the [DWC] appeals panel constitutes a failure to exhaust administrative remedies." See also Combined Specialty Ins. v. Deese, 266 S.W.3d 653 , 658 (Tex.App.--Dallas 2008, no pet.); Continentul Cm,. Co. 11• Rivera, 124 S.W.3d 705 , 7 I 2 (Tex.App.--Austin 2003 , pet. denied). But see Cervantes v. Tyson Foods, Inc. , 130 S. W.3d 152, 156-58 (Tex.App.--El Paso 2003 , pet. denied) (timeliness of appeal is not part of exhaustion requirement).

V.T.C.A., Labor Code§ 410 .301 et seq.

V. T. C. A., Labor Code § 410.251, TX LABOR § 410.251 CmTent through legislation effective May 21, 2025, of the 2025 Regular Session of the 89th Legislature. Some statute sections may be more cuLTent, but not necessarily complete through the whole Session. See credits for details .

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ld·h·I HISTORICAL TEXAS REGISTER VIEW PDF

Title 28 INSURANCE

Part 2 TEXAS DEPARTMENT OF INSURANCE, DIVISION OF WORKERS' COMPENSATION

Chapter 141 DISPUTE RESOLUTION--BENEFIT REVIEW CONFERENCE

Rule §141 .4 Sending and Exchanging Pertinent Information

Previous Rule View Rule

Next Rule View Rule

Chapter Review Date 05/12/2025

TAB W

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(a) As used in this chapter "pertinent information" means 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:

(1) reports regarding the compensable injury;

(2) the injured employee's wage records; and

(3) the injured employee's medical records.

(b) Examples of "pertinent information" are listed on the division's website.

(c) All pertinent information, as described in subsections (a) and (b) of this section, not previously exchanged, in the possession of the party requesting a benefit review conference must be sent to the opposing party or parties before the time the request for a benefit review conference is sent to the division.

(d) The opposing party must send all pertinent information in its possession, not previously exchanged, to the requesting party and other parties within 10 working days after receiving a copy of the request for a benefit review conference.

(e) Not later than 14 days before the benefit review conference, or not later than five days before an expedited conference set under §141.1 (d)(2) of this title (relating to Requesting and Setting a Benefit Review Conference):

(1) all pertinent information in the parties' possession not previously sent to the division shall be sent to the division; and

(2) all pertinent information in the parties' possession not previously exchanged must be sent to the other parties.

(f) Additional pertinent information that becomes available thereafter shall be brought to the conference in sufficient copies for the division and opposing party or parties.

(g) The benefit review officer may schedule a second conference upon a determination that pertinent information necessary to resolve the dispute has not been submitted or exchanged.

Source Note: The provisions of this §141.4 adopted to be effective June 7, 1991, 16 TexReg 2876; amended

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iiiih!i HISTORICAL TEXAS REGISTER VIEW PDF

Part 2 TEXAS DEPARTMENT OF INSURANCE, DIVISION OF WORKERS' COMPENSATION

Chapter 142 DISPUTE RESOLUTION--BENEFIT CONTESTED CASE HEARING

Rule §142.1 Application of the Administrative Procedure Act

The following sections of the Government Code, apply to benefit contested case hearings:

Source Note: The provisions of this §142.1 adopted to be effective February 12, 1991, 16 TexReg 463;

TAB X

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iihii HISTORICAL TEXAS REGISTER VIEW PDF

Part 2 TEXAS DEPARTMENT OF INSURANCE, DIVISION OF WORKERS' COMPENSATION

Chapter 142 DISPUTE RESOLUTION--BENEFIT CONTESTED CASE HEARING

Rule §142.2 Authority of the Administrative Law Judge

The administrative law judge is authorized to:

(1) issue subpoenas;

(2) rule on requests;

(3) issue orders, including interlocutory orders;

(4) use summary procedures as provided by §142.8 of this chapter (relating to Summary Procedures);

(5) direct parties to appear at a prehearing conference to resolve evidentiary and procedural issues;

(6) establish time limits for conducting a hearing;

(7) administer oaths;

(8) rule on the admissibility of evidence;

(9) determine the relevancy, materiality, weight, and credibility of evidence;

(10) request additional evidence;

(11) take official notice of the law of Texas and other jurisdictions, Texas city and county ordinances, the contents of the Texas Register, the rule of state agencies, facts that are judicially cognizable, and generally recognized facts within the division's specialized knowledge;

Source Note: The provisions of this §142.2 adopted to be effective February 12, 1991, 16 Tex Reg 463;

TAB Y

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IHih·I HISTORICAL TEXAS REGISTER VIEW PDF

Part 2 TEXAS DEPARTMENT OF INSURANCE, DIVISION OF WORKERS' COMPENSATION

Chapter 142 DISPUTE RESOLUTION--BENEFIT CONTESTED CASE HEARING

Rule §142.12 Subpoena

TAB Z

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(a) Definitions. The following words and terms, as used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise:

(1) Evidence - Testimony or documents, including books, papers, and tangible things.

(2) Service - Delivery of a subpoena by an authorized individual to the person to whom it is addressed.

(3) Subpoena - A division order issued by the administrative law judge requiring a person to attend or to produce evidence at a deposition (deposition subpoena) or at a hearing (hearing subpoena).

(b) How issued. The division may issue a subpoena:

(1) on its own motion; or

(2) at the request of a party, if the administrative law judge determines the party has a good cause.

(c) Request for subpoena. A party may request a subpoena in the following manner:

(1) If the requester is a carrier, carrier representative, claimant represented by an attorney, or claimant assisted by OIEC, the request shall:

(A) be in writing;

(B) identify the evidence to be produced, and explain why it is relevant to a disputed issue;

(C) state whether the subpoena is for a deposition or a hearing;

(D) be sent to the division; and

(E) be delivered to all parties, as provided by §142.4 of this chapter (relating to Delivery of Copies to All Parties).

(2) A claimant who is neither represented by an attorney nor assisted by OIEC may request a subpoena by contacting the division in any manner, and may also request the division to arrange for service, if service will be at no cost to the division.

(d) Special provisions for hearing subpoenas. A request for a hearing subpoena shall be sent to the division and delivered to the parties, as provided by §142.4 of this chapter (relating to Delivery of Copies to All Parties), no later than 10 days before the hearing. The administrative htlps://texas-sos.appianportalsgov.com/rules-and-meetings?$Iocale=en_US&interface=VI EW_TAC_SUMMARY &queryAsDate=06%2F 11 %2F2025&re. . . 2/3 6/11 /25, 10:50 AM Home - Rules & Meetings Iaw Juage may aeny a request ror a nearing suopoena upon a aetermrnat1on mat me testimony may be adequately obtained by deposition or written affidavit.

(e) Service. Upon granting a request and issuing a subpoena, the administrative law judge shall :

(1) return it to the requester for service, according to §176.5, Texas Rules of Civil Procedure; or

(2) send it to the appropriate sheriff or constable, or any person who is not a party and is 18 years of age or older for service, if a claimant who is neither represented by an attorney nor assisted by OIEC has requested the division to arrange for service, as provided by c:::11hc:::Prtinn (r)()) nf thic::: c:::Prtinn

Source Note: The provisions of this §142 .12 adopted to be effective February 12, 1991, 16 TexReg 463;

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Part 2 TEXAS DEPARTMENT OF INSURANCE, DIVISION OF WORKERS' COMPENSATION

Chapter 142 DISPUTE RESOLUTION--BENEFIT CONTESTED CASE HEARING

Rule §142.13 Discove ry

Chapter Review Date 05/ 12/2025

TAB AA

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(a) Description of discovery. As used in this chapter, discovery is the process by which a party may, before the hearing, obtain evidence relating to the disputed issue or issues from the other parties and witnesses. If the evidence is not produced voluntarily, the party may request a subpoena, as provided in §142.12 of this title (relating to Subpoena). Discovery includes:

(1) parties' exchange of documentary evidence;

(2) interrogatories, as prescribed by§ 142.19 of this title (relating to Interrogatories); and

(3) witness depositions, as follows:

(A) a health care provider may be deposed only on written questions; and

(B) other witnesses may be deposed within their county of residence or employment, orally or on written questions, if the administrative law judge determines the party has good cause to request such testimony.

(b) Sequence of discovery. Parties shall exchange documentary evidence in their possession not previously exchanged, as described in subsection (c) of this section, before requesting additional discovery by interrogatory, as described in subsection (d) of this section, or deposition, as described in subsection (e) of this section. Additional discovery shall be limited to evidence not exchanged, or not readily derived from evidence exchanged.

(c) Parties' exchange of documentary evidence.

(1) Except as provided in subsection (g) of this section, no later than 15 days after the benefit review conference, parties shall exchange with one another the following information:

(A) all medical reports and reports of expert witnesses who will testify at the hearing;

(B) all medical records;

(C) any witness statements;

(D) the identity and location of any witness known to have knowledge of relevant facts; and

(E) all photographs or other documents which a party intends to offer into evidence at the hearing.

(2) Thereafter, parties shall exchange additional documentary evidence as it becomes available. https://texas-sos .appianportalsgov.com/rules-and-meetings?$1ocale=en_ US&interface=VI EW_TAC_SUMMARY &queryAsDate=06%2F 11 %2F2025&re.. . 2/3 6/11 /25, 10:50 AM Home - Rules & Meetings

(3) Parties shall bring all documentary evidence not previously exchanged to the hearing in sufficient copies for exchange. The administrative law judge shall make a determination whether good cause exists for a party not having previously exchanged such information or documents to introduce such evidence at the hearing.

(d) Interrogatories.

(1) Interrogatories, as prescribed by §142.19 of this title (concerning Interrogatories), may be used by all parties, including subclaimants, to obtain information from any other party.

(2) Except as provided in subsection (g) of this section, interrogatories must be presented no later than 25 days before the hearing, unless otherwise agreed.

(3) Answers to interrogatories must be exchanged no later than 10 days after receipt of the i nte rro gato ri es.

(4) Answers to interrogatories must be made under oath.

(e) Witness deposition. A party wishing to depose a witness shall request permission for deposition from the administrative law judge. The request shall:

(1) be made in writing;

Source Note: The provisions of this §142.13 adopted to be effective February 12, 1991, 16 Tex Reg 463; amended to be effective February 18, 1992, 17 Tex Reg 949; amended to be effective January 7, 2019, 44

https://texas-sos.appianportalsgov.com/rules-and-meetings?$Iocale=en_US&interface=VI EW_TAC_ SUMMARY &queryAsDate=06%2 F 11 %2F2025&re... 3/3 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: 101957788 Filing Code Description: Original Proceeding Petition Filing Description: Petition for Writ of Mandamus Status as of 6/12/2025 3:57 PM CST

Case Contacts

Name BarNumber Email TimestampSubmitted Status

Laverne Chang 783819 chang@cardwellchang.com 6/12/2025 3:47:22 PM SENT

James Brazell 2930100 james.brazell@oag.texas.gov 6/12/2025 3:47:22 PM SENT

Sherlyn Harper 24093176 sherlyn.harper@oag.texas.gov 6/12/2025 3:47:22 PM SENT

Andrew Bruce 24113627 serv.andrew@mf-txlaw.com 6/12/2025 3:47:22 PM SENT

Pablo Franco 24121625 serv.pablo@mf-txlaw.com 6/12/2025 3:47:22 PM SENT

Joshua DavidHeiliger, et al. serv.russell@mf-txlaw.com 6/12/2025 3:47:22 PM SENT

Jackie Struss jackie_struss@justex.net 6/12/2025 3:47:22 PM SENT

Lisa M.Teachey lteachey@dgplawfirm.com 6/12/2025 3:47:22 PM SENT

Dean Pappas dpappas@dgplawfirm.com 6/12/2025 3:47:22 PM SENT

Mary Markantonis mmarkantonis@dgplawfirm.com 6/12/2025 3:47:22 PM SENT

Tanisha Doublin tdoublin@dgplawfirm.com 6/12/2025 3:47:22 PM SENT

Jacquelyn Compton admin@dgplawfirm.com 6/12/2025 3:47:22 PM SENT

Hope Burnett-Furlow hfurlow@dgplawfirm.com 6/12/2025 3:47:22 PM SENT