In Re Fort Bend County v. the State of Texas

Opinion

ACCEPTED 15-25-00102-CV FIFTEENTH COURT OF APPEALS AUSTIN, TEXAS 8/12/2025 9:20 AM NO. 15-25-00102-CV CHRISTOPHER A. PRINE CLERK

IN THE COURT OF APPEALS FILED IN 15th COURT OF APPEALS FOR THE FIFTEENTH JUDICIAL DISTRICT OF TEXAS AUSTIN, TEXAS AT AUSTIN, TEXAS 8/12/2025 9:20:03 AM 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

RELATOR FORT BEND COUNTY'S REPLY BRIEF IN SUPPORT OF ITS 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 NO. 15-25-00102-CV

IN THE COURT OF APPEALS FOR THE FIFTEENTH JUDICIAL DISTRICT OF TEXAS AT AUSTIN, TEXAS

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

RELATOR FORT BEND COUNTY'S REPLY BRIEF IN SUPPORT OF ITS PETITION FOR WRIT OF MANDAMUS

TO THE HONORABLE JUSTICES OF THE FIFTEENTH COURT OF APPEAL:

Relator Fort Bend County files its Reply Brief in support of its Petition for

Writ of Mandamus as follows:

I. OBJECTIONS TO HEILIGER'S STATEMENT OF FACTS

Relator Fort Bend County ("Fort Bend") objects to Real Party in Interest

Joshua Heiliger's statement of facts that the Administrative Law Judge entered the

deposition subpoena at issue over Heiliger's written objection. See Heiliger's

Response at page 9. On January 24, 2025, Fort Bend County submitted an

amended request for a Deposition Subpoena, effectively replacing the December 27, 2024 motion for subpoena. (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). This subpoena was now a deposition subpoena, which was substantively

different from the previous subpoenas. Mr. Heiliger filed no objection at the

Division, nor a motion to quash, nor a motion seeking protection. Mr. Heiliger

filed no written objection to the subpoena at issue here and has not pointed to

anything in the record showing otherwise.

II. ARGUMENT AND AUTHORITY

1. MANDAMUS IS PROPER

Mandamus is proper because an Appeal would not provide Relator Fort

Bend County an adequate remedy. Texas Civil Practice & Remedies Code §

51.014 does not allow Fort Bend to argue jurisdiction when appealing the granting

of injunctive relief because Fort Bend has waived sovereign immunity for the

limited purpose of providing workers' compensation as a self-insured

governmental entity. Fort Bend is not and cannot claim as a governmental entity in

2 this instance that it is immune from a District Court's judicial review power of a

final Appeals Panel Decision in a workers' compensation dispute.

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

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

matter jurisdiction surrounding this workers' compensation proceeding.

Fort Bend must seek extraordinary relief in this case because the judicial

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

processes of government" which the Texas Supreme Court has found is one of a

few circumstances when a party may seek extraordinary relief despite a remedy

available by appeal. See In re Entergy Corp., 142 S.W.3d 316, 320-231 (Tex.

2004) ( orig. proceeding). "This disruption, coupled with the hardship imposed ...

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

against using mandamus to correct incidental trial court rulings." Id.

Fort Bend County contemporaneously filed an Appeal on the merits of the

injunction granted by the District Court to ensure it met all appellate deadlines in

the event this Petition for Writ of Mandamus was denied. Appellant respectfully

requests this Court to take up the jurisdiction matter presented in this mandamus

proceeding before consideration of the Appeal.

3 2. OTEKA DOES NOT APPLY

Fort Bend filed its Petition for Writ of Mandamus on June 12, 2025. One

day later the Texas Supreme Court issued its opinion in Univ. of Tex. Rio Grande

Valley v. Oteka, 715 S.W. 3d 734, 743 (Tex. 2025). Although Fort Bend sought

leave to amend its Petition one week afterward, the amendment was to correct

record cites. Fort Bend now will address Oteka and its reach relating to

jurisdiction in workers' compensation matters. Fort Bend maintains that Oteka is

distinguishable from the matter at bar.

The basis of Fort Bend's Petition for Writ of Mandamus is whether the 11 th

District Court has subject matter jurisdiction over a discovery issue involving a

claim properly pending before the Texas Division of Workers' Compensation

("Division"). Put simply, Real Party in Interest Joshua Heiliger ("Mr. Heiliger") is

asking the Division to determine course and scope of employment but in the same

breath - and in total disregard for the Texas Legislature's grant of discovery

authority for administrative hearings -- is asking the 11 th District Court to bar the

Division from allowing discovery to decide that issue.

Oteka is not applicable in this instance.

The holding in Oteka is not that the Division never has exclusive jurisdiction

to decide issues of compensability. Rather, the holding in Oteka is simply that

blanket statements that the Division has exclusive jurisdiction to determine course

4 and scope of employment are not proper in a limited set of cases, like when the

claim is not within the compensability context. The Oteka case was about a tort

claim outside the scope of workers' compensation in which the Defendant tried to

use Division of Workers' Compensation jurisdiction to wrangle the best posture for

its liability coverage for the tort allegation.

Rita Oteka, an employee of the University of Texas Rio Grande Valley, was

walking when she was struck by a vehicle driven by a university police officer. Id.

736-37. Although the University reported the injury to its workers' compensation

claims administrator, Ms. Oteka from the start told the University she was going to

use her personal insurance. Id. at 73 7. She was voluntarily attending an event on

campus to support a former student. Id. at 736-37. At the time, the University

already had decided the claim did not occur in the course and scope of her

employment. Id. Ms. Oteka did not challenge that decision. Id. at 737. More than

a year after her injury, Ms. Oteka sued the police officer for negligence. Id. The

University provided his defense. Id. For the first time, the University alleged the

injury occurred in course and scope of employment, so Ms. Oteka was barred from

any common-law claims against the University because the Division of Workers'

Compensation had exclusive jurisdiction in matters regarding workplace injuries.

Id.

5 The Texas Supreme Court took up the Oteka matter to settle the split of

authority regarding the Division's jurisdiction in very particularized fact patterns

involving questions of course and scope of employment. Id. at 739.

The Court found that Oteka's personal-injury claim was not predicated on

entitlement to workers' compensation. Id. at 741. The Court pointed out that even

the University maintained for three years that Ms. Oteka's claim was outside the

course and scope of her employment. Id. Based on the facts of Ms. Oteka's claim,

the Court reasoned that the initial determination of "any" course and scope issue

does not fall within the Division's exclusive jurisdiction. Id.

The Texas Supreme Court's holding in Oteka was very narrowly drawn. Id.

at 743.

"We conclude that the Act does not manifest a legislative intent that this

unusual process should be the exclusive means for determining the course-and-

scope issue when an employer raises it by an affirmative defense to an employee's

lawsuit." Id.

The Court held that " ... the Division does not have exclusive jurisdiction to

determine whether an injury occurred in the course and scope of employment when

( 1) the employer raises the issue as an affirmative defense outside the

compensability context and (2) the employee's requested relief does not depend on

any entitlement to benefits." Id. at 744.

6 The Oteka Court disapproved of the following holdings:

• In re Tex. Mut. Ins. Co., No. 04-24-00386-CV, 2025 WL 610877, at *4, *7 (Tex. App.-San Antonio Feb. 26, 2025, orig. proceeding); • In re Prentis, 702 S.W.3d 762, 769-74 (Tex. App.-Houston [1st Dist.] 2024, orig. proceeding); • In re Hellas Constr., Inc., No. 03-21-00182-CV, 2022 WL 2975702, at *4-5 (Tex. App.-Austin July 28, 2022, orig. proceeding [mand. denied]); • Berrelez v. Mesquite Logistics USA, Inc., 562 S.W.3d 69, 74-75 (Tex. App.-San Antonio 2018, no pet.); and • In re Tyler Asphalt & Gravel Co., 107 S.W.3d 832, 839-40, 843 (Tex. App.-Houston [14th Dist.] 2003, orig. proceeding). Id. at 744, FN 51, (emphasis of page numbers added).

Oteka did not overturn Prentis, Berrelez, and Tyler Asphalt in their entirety.

And Fort Bend did not cite those cases for the premise that the Division always has

exclusive jurisdiction over course and scope. Fort Bend did not cite Berrelez on

pages 74 and 75 at all. 1 Fort Bend did cite Prentis and Tyler Asphalt on the pages

Oteka referenced because at the time Fort Bend filed its Petition for Writ of

Mandamus, those were the precedent for course and scope jurisdiction. However,

Fort Bend just as readily can make its argument relying on Oteka and the other

cases cited in its Petition.

Mr. Heiliger has never claimed his request for death benefits compensation

1s not properly before the Division. More importantly, Mr. Heiliger's claim 1Although Fort Bend did cite Berrelez at page 73, the cite quoted Tyler Asphalt on the pages Oteka disapproved.

7 absolutely depends on entitlement to workers' compensation benefits. In this

context, the Division does have exclusive jurisdiction and its discovery procedures

and remedies apply under the following statutes and rules:

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 .15 8 upon a showing of good cause at a hearing held for this purpose (Appendix AA); and

8 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).

By promulgating these statutes and allowing the Texas Department of Insurance to

adopt rules to enforce the provisions of the Act, the Texas Legislature intended to

give the Division full authority to determine course and scope of employment

when the issue of compensability is properly before it.

Mr. Heiliger's reliance on Oteka is misplaced. As the Texas Supreme Court

pointed out in explaining its holding, the Division's exclusive-remedy provision is

essential to the Act's continued success. Oteka at 744-45.

"We are mindful, as both the University and amicus curiae caution, that

some may improperly view our jurisdictional holding as a path to circumvent the

statutory scheme and take a shot at a greater tort recovery before seeking benefits,"

Id. But the Texas Supreme Court warned that "legislative and judicial safeguards

are in place to maintain the Act's balance of advantage and detriment." Id.

3. HEALTH AND SAFETY CODE

Mr. Heiliger contends that Health and Safety Code § 611 (Appendix K)

merely provides a safe harbor for medical providers to disclose confidential

information and contends that this statute does not provide a mechanism for

piercing the privilege of confidentiality. See Heiliger's Response page 47-48. Fort

9 Bend would argue that it is much more. A search of Westlaw showed no case law

or citing references referring to this statute as a safe harbor. By its plain meaning it

should be read as a codification of Texas Rule of Evidence 510(d)(5) (Appendix

L). Both of these evidentiary procedures grant authority for the tribunal, whether it

be an ALJ or a District Judge, to determine if the mental health records

confidentiality privilege should be pierced.

III. CONCLUSION

Fort Bend has stipulated that missteps were made in the administrative

discovery process. But those errors were corrected each time Mr. Heiliger pointed

them out. The crux of Fort Bend's request for relief is that Mr. Heiliger needs to

make the required objection or request for relief that would abate the issuance of

the deposition subpoena until either the ALJ or Fort Bend seeks to compel the

subpoena pursuant to Government Code 2001.201.

Fort Bend has agreed on the record to go back to the Division and either

allow the ALJ to review the records at issue in camera or allow Mr. Heiliger to

raise some sort of objection or seek some sort of protection. If Mr. Heiliger

chooses to lodge a formal objection or formally seek protection, then Fort Bend

and/or the ALJ would have to decide whether to pursue compelling compliance

with the subpoena under the process mandated by Government Code 2001.201,

10 where Mr. Heiliger would be afforded all the protections he is improperly seeking

by trying to circumvent the administrative process.

PRAYER

WHEREFO:RE, ARGUMENT AND AUTHORITY CONSIDERED, the

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

Mandamus, direct The Honorable Kristen 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.

Respectfully submitted, DEANG.PAPPASLAWFIRM PLLC

By:_ L_l ~-=------------- ~ -----=-----..c:~

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

11 mallen@dgplawfirm.com 8588 Katy Freeway, Suite 100 Houston, Texas 77024 Telephone: 713-914-6200 Telecopier: 713-914-6201

ATTORNEYSFORRELATOR FORT BEND COUNTY

RULE 52.3{J) CERTIFICATION In compliance with Rule 52.3G) of the Texas Rules of Appellate Procedure, I certify that I have reviewed the Relator's Reply in support of its Petition for Writ of Mandamus and have concluded that every factual statement in the reply is supported by competent evidence included in the record.

CERTIFICATE OF COMPLIANCE This reply brief complies with the length limitations of TEX. R. APP. P. 9.4(i)(3) because this reply brief consists of 2,267 words as determined by Microsoft Word Count, excluding the parts of the reply brief exempted by TEX. R. APP. P. 9.4(i)(l).

CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of this Reply Brief in Support of its 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 12 th day of August, 2025, addressed as follows: Via eFile through the electronic filing manager Russell L. Morris Pablo A. Franco Andrew W. Bruce

12 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 zn her official capacity, Real Party in Interest

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

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

Via email to jackie struss@justex.net The Honorable Kristen B. Hawkins c/o Jackie Struss, Coordinator jackie struss@justex.net 13 11 th Civil District Court Harris County Civil Courthouse 201 Caroline, 9th Floor Houston, Texas 77002

Respondent

14 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: 104249769 Filing Code Description: Response Filing Description: RELATOR FORT BEND COUNTY'S REPLY BRIEF IN SUPPORT OF ITS PETITION FOR WRIT OF MANDAMUS Status as of 8/12/2025 9:24 AM CST

Case Contacts

Name BarNumber Email TimestampSubmitted Status

Mary Markantonis mmarkantonis@dgplawfirm.com 8/12/2025 9:20:03 AM SENT

Laverne Chang 783819 chang@cardwellchang.com 8/12/2025 9:20:03 AM SENT

Marilyn Allen 24025225 mallen@dgplawfirm.com 8/12/2025 9:20:03 AM SENT

James Brazell 2930100 james.brazell@oag.texas.gov 8/12/2025 9:20:03 AM SENT

Sherlyn Harper 24093176 sherlyn.harper@oag.texas.gov 8/12/2025 9:20:03 AM SENT

Russell Morris 24099150 serv.russell@mf-txlaw.com 8/12/2025 9:20:03 AM SENT

Hope Burnett-Furlow hfurlow@dgplawfirm.com 8/12/2025 9:20:03 AM SENT

Pablo Franco 24121625 serv.pablo@mf-txlaw.com 8/12/2025 9:20:03 AM SENT

Andrew Bruce 24113627 serv.andrew@mf-txlaw.com 8/12/2025 9:20:03 AM SENT

Lisa M.Teachey lteachey@dgplawfirm.com 8/12/2025 9:20:03 AM SENT

Tanisha Doublin tdoublin@dgplawfirm.com 8/12/2025 9:20:03 AM SENT

Catherine Hughes catherine.hughes@oag.texas.gov 8/12/2025 9:20:03 AM SENT

Dean Pappas dpappas@dgplawfirm.com 8/12/2025 9:20:03 AM SENT

Meridith Fischer Meridith.Fischer@oag.texas.gov 8/12/2025 9:20:03 AM SENT

Jacquelyn Compton admin@dgplawfirm.com 8/12/2025 9:20:03 AM SENT

Jackie Struss jackie_struss@justex.net 8/12/2025 9:20:03 AM SENT

Joshua DavidHeiliger, et al. serv.russell@mf-txlaw.com 8/12/2025 9:20:03 AM SENT

Veronica Gonzalez veronica_gonzalez@justex.net 8/12/2025 9:20:03 AM SENT