Marqueth Wilson v. Texas Workers' Compensation Commission, et al--Appeal from 114th District Court of Smith County

NO. 12-01-00337-CV
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS

MARQUETH WILSON,

 
APPEAL FROM THE 114TH

APPELLANT

 

V.

 
JUDICIAL DISTRICT COURT OF

TEXAS WORKERS'

COMPENSATION COMMISSION,

 
SMITH COUNTY, TEXAS

APPELLEE

MEMORANDUM OPINION

Marqueth Wilson ("Wilson") brings this pro se interlocutory appeal challenging an order granting a plea to the jurisdiction filed by the Texas Workers' Compensation Commission ("TWCC"). Wilson raises five issues on appeal. We affirm.

 
Background

Wilson sustained a work-related injury on June 18, 1991. Temporary income benefits were paid by his employer's workers' compensation carrier, Liberty Mutual Insurance Company ("Liberty Mutual"), until August 1991 when Wilson was sentenced to eight years of imprisonment. After his release on March 21, 1993, Wilson sought treatment for his injury and again began receiving temporary income benefits from Liberty Mutual. He received benefits until June 1993. At or about the time Wilson's benefits ceased, Liberty Mutual assigned Wilson an impairment rating of five percent. Based upon the assigned rating, Liberty Mutual paid impairment income benefits for fifteen weeks until October 1993. (1) Although Wilson's benefits terminated, his doctor did not release him to return to work. In March 1994, Wilson's doctor assigned Wilson a five percent impairment rating. Wilson disputed his doctor's conclusion, and TWCC designated a doctor to review the rating. Upon completing the review, the designated doctor agreed with Wilson's doctor.

On May 23, 1994, Wilson was arrested for another offense for which he was ultimately convicted and sentenced to thirty years of imprisonment. While in prison, Wilson informed TWCC that he disagreed with the impairment rating assigned by the designated doctor. In February 2000, Wilson requested that TWCC schedule a benefit review conference (BRC) and submitted an original petition along with medical records and a "retrospective report" of every check issued by Liberty Mutual. TWCC informed Wilson that a BRC would not be scheduled because there were no unresolved disputes between Wilson and Liberty Mutual. According to Wilson, he was informed by TWCC that

 

[d]ispute resolution proceedings held at [TWCC] are to resolve disputes between the parties associated to your claim and are not the correct forum to establish that your statutory rights were violated. If you have specific concerns related to a party who has violated a specific section of the Act and rules, these specific concerns should be forwarded to our Compliance and Practices Division for review.

 

Wilson submitted a letter to the Appeals Panel in an attempt to appeal the denial of a BRC, but received no response. (2) He also wrote the director of the Compliance and Practices Division in 2000 and 2001, requesting that "administrative violations proceedings be enacted against TWCC employees and Liberty Mutual", but received no response.

On July 24, 2001, Wilson sued TWCC for money damages in the amount of the additional benefits he contends he is entitled to receive from Liberty Mutual. In his petition, he asserted that TWCC and its employees failed to handle his workers' compensation claim according to the law and procedures set forth in the Texas Workers' Compensation Act (the "Act"). He also described certain acts and omissions of TWCC employees he contends were wrongful such as (1) the ombudsman's failure to adequately inform him of his statutory rights and assist him in protecting his benefits as required by section 409.041(b) of the Texas Labor Code (3); (2) the failure of TWCC's employees to adequately answer his questions concerning who provides benefits to someone who is no longer entitled to benefits but is unable to work; (3) TWCC's failure to timely notify his treating physician in accordance with section 408.123 (4) that an impairment rating should be assessed; (4) TWCC's failure to act in good faith to determine whether any extended unemployment or underemployment existed as a direct result of his impairment as required by section 408.086(a); and (5) the failure of TWCC's employees to schedule a BRC.

On September 24, 2001, Wilson amended his original petition to join various TWCC employees as defendants in their official and individual capacities. Wilson also included additional allegations of misconduct, stating that TWCC and its employees (1) discriminated against him in violation of 42 U.S.C. 1983 and the Fourteenth Amendment to the United States Constitution; (2) denied his right to procedural due process; and (3) acted negligently in the performance of ministerial acts. Wilson also alleged that he had exhausted all available administrative remedies and therefore his suit is authorized by the Texas Administrative Procedure Act. Furthermore, he included additional complaints about specific conduct of TWCC's employees including (1) the issuance of conflicting correspondence; (2) the failure to respond to all of his correspondence; and (3) the failure to fully investigate his claim.

In response to Wilson's allegations, TWCC filed an Answer and Plea to the Jurisdiction asserting that it is a state agency created by the Texas Legislature and is entitled to the same sovereign immunity from suit and from liability as the State of Texas. TWCC also asserted the defense of official immunity on behalf of its officers, agents, and employees and alleged that Wilson had not exhausted his administrative remedies. TWCC's plea to the jurisdiction was granted on December 17, 2001, and this appeal followed.

 
Standard of Review

A plea to the jurisdiction contests the authority of a trial court to determine the subject matter of the case. Texas Dep't of Transp. v. Jones, 8 S.W.3d 636, 638 (Tex. 1999). The plaintiff bears the burden of alleging facts affirmatively demonstrating jurisdiction. See Texas Ass'n of Bus. v. Texas Air Control Bd., 852 S.W.2d 440, 446 (Tex. 1993). In determining whether jurisdiction exists, the trial court must construe the pleadings liberally in favor of jurisdiction unless the face of the pleading shows a lack of jurisdiction, Peek v. Equip. Serv. Co., 779 S.W.2d 802, 804 (Tex. 1989), and must take all pleaded factual allegations as true and look to the pleader's intent. County of Cameron v. Brown, 80 S.W.3d 549, 555 (Tex. 2002). The trial court may also consider evidence relevant to the jurisdictional issue raised and must do so when necessary to resolve the issue. Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 546, 555 (Tex. 2000). However, in so doing, the trial court must not weigh the merits of the case. Brown, 80 S.W.3d at 555-56.

If the pleadings affirmatively negate the existence of jurisdiction, a plea to the jurisdiction may be granted without allowing the plaintiff an opportunity to amend. Id. at 555. However, the mere failure of a petition to state a cause of action does not show a want of jurisdiction in the trial court. Bybee v. Fireman's Fund Ins., 160 Tex. 429, 331 S.W.2d 910, 917 (1960). When a plaintiff fails to plead facts that establish jurisdiction, but the petition does not affirmatively demonstrate incurable defects in jurisdiction, the issue is one of pleading sufficiency, and the plaintiff should be afforded the opportunity to amend. See id. We review a trial court's ruling on a plea to the jurisdiction de novo because subject matter jurisdiction is a question of law. See Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex. 1998).

 
Issues Presented

Wilson contends that the trial court erred in granting TWCC's plea to the jurisdiction. In five issues, he argues that (1) TWCC and its employees are not protected by sovereign immunity, official immunity, or qualified immunity; (2) the Administrative Procedure Act authorizes his suit; (3) TWCC's employees discriminated against him based upon his race and his class as a prisoner or ex-felon, thereby violating 42 U.S.C. 1983, the Fourteenth Amendment of the United States Constitution, and Articles I, III, and XIX of the Texas Constitution; (4) the acts of TWCC's employees were ministerial and carried out negligently and with malice; and (5) he exhausted all of his available administrative remedies as set forth in the Act. We interpret Wilson's third issue as an argument that sovereign immunity, official immunity, and qualified immunity do not protect TWCC and its employees from suit or liability for his constitutional claims.

The employee defendants did not join in TWCC's plea to the jurisdiction, and the trial court's order does not dismiss Wilson's claims against them. Therefore, the trial court's order dismisses Wilson's claims against TWCC and against the employee defendants in their official capacities. See Pickell v. Brooks, 846 S.W.2d 421, 424-25 (Tex. App.-Austin 1992, writ denied) (a suit against state officials in their official capacities is equivalent to a suit against the State).

Wilson's third and fourth issues, as well as certain arguments in his first issue, relate to official immunity and qualified immunity. Because Wilson's claims against the employee defendants in their individual capacities are still pending in the trial court, we do not address those issues and arguments.

 
Sovereign Immunity

Sovereign immunity derives from the principle that the sovereign may not be sued in its courts without its consent. Texas Workers' Comp. Comm'n v. Garcia, 862 S.W.2d 61, 72 (Tex. App.-San Antonio 1993), rev'd on other grounds, 893 S.W.2d 504 (Tex. 1995). Unless waived, sovereign immunity protects the State from lawsuits for damages. Gen. Servs. Comm'n v. Little-Tex Insulation Co., 39 S.W.3d 591, 594 (Tex. 2001). Sovereign immunity encompasses two principles: immunity from suit and immunity from liability. Texas Natural Res. Conservation Comm'n v. IT-Davy, 74 S.W.3d 849, 853 (Tex. 2002). Immunity from suit bars a suit against the State unless immunity is waived by constitutional provision or legislative enactment. Wichita Falls State Hosp. v. Taylor, 106 S.W.3d 692, 695 (Tex. 2003). Absent consent, the State retains immunity from suit even if its liability is undisputed. Federal Sign v. Texas S. Univ., 951 S.W.2d 401, 409 (Tex. 1997).

A suit against a state agency is considered to be a suit against the State. Lowe v. Texas Tech. Univ., 540 S.W.2d 297, 298 (Tex. 1976). Similarly, a suit against state officials in their official capacities is equivalent to a suit against the State. Pickell, 846 S.W.2d at 425. Consequently, sovereign immunity protects agencies that are derived from the state constitution and laws as well as state officials sued in their official capacities. Lowe, 540 S.W.2d at 298; see Pickell, 902 S.W.2d at 425. It is undisputed that TWCC is a state agency.

As a general rule, a plaintiff who sues the State under state law must establish legislative consent to the suit. Jones, 8 S.W.3d at 638. Otherwise, sovereign immunity from suit defeats a trial court's subject matter jurisdiction. Id. at 638. A party can establish consent by referencing a statute or a legislative resolution clearly and unambiguously granting consent. Id.; University of Texas Med. Branch v. York, 871 S.W.2d 175, 177 (Tex. 1994).

Tort Claims

To establish that the trial court has jurisdiction of a tort claim against the State, a plaintiff must (1) allege consent to suit either by reference to a statute or express legislative permission, see Jones, 8 S.W.3d at 638, and (2) plead facts that fall within the scope of the waiver relied on. Texas Dep't of Criminal Justice v. Miller, 51 S.W.3d 583, 587 (Tex. 1999). To demonstrate the requisite consent, Wilson contends that the Texas Tort Claims Act ("TTCA") provides an exception to the general rule that the State is immune from suit. See Tex. Civ. Prac. & Rem. Code Ann. 101.001-101.109 (Vernon 1997 & Supp. 2003). He further argues that the TTCA imposes liability on the State for the torts of its employees under the principle of respondeat superior. However, the waiver of immunity contained in the TTCA is limited to narrowly-defined circumstances. See Miller, 51 S.W.3d at 587.

The TTCA allows a suit against the State or a governmental unit for property damage, personal injury, or death proximately caused by the negligence of an employee that arises from the use or operation of a motor-driven vehicle or motor-driven equipment or a condition or use of tangible personal or real property. Tex. Civ. Prac. & Rem. Code Ann. 101.021 (Vernon 1997). Wilson has not pleaded facts within the scope of this limited waiver. See Miller, 51 S.W.3d at 587. Therefore, he has not shown that sovereign immunity from suit for his tort claims has been waived.

Constitutional Claims

Relying on 42 U.S.C. 1983, Wilson seeks damages for TWCC's alleged violations of certain rights guaranteed to him by the United States Constitution. Section 1983 provides a remedy when any "person" acting under color of state law deprives another of rights, privileges, or immunities protected by the United States Constitution or laws. 42 U.S.C.A. 1983 (West Pamph. Supp. 2003).

Unlike a claim asserted pursuant to state law, consent to suit is not required for a section 1983 action. See Nueces County v. Hoff, 105 S.W.3d 208, 210 (Tex. App.-Corpus Christi 2003, pet. filed); Morris v. Collins, 916 S.W.2d 527, 531 (Tex. App.-Houston [1st Dist.] 1995, no writ) (O'Connor, J. concurring). However, neither a state nor its officials acting in their official capacities are "persons" under section 1983. Will v. Michigan Dep't of State Police, 491 U.S. 58, 71, 109 S. Ct. 2304, 2312, 105 L. Ed. 2d 45 (1989); Harrison v. Texas Dep't of Criminal Justice--Institutional Div., 915 S.W.2d 882, 889 (Tex. App.-Houston [1st Dist.] 1995, no writ). Congress intended for municipalities and other local government units to be considered "persons" under section 1983 and therefore subject to suit. See Monell v. Dep't of Soc. Servs. of New York, 436 U.S. 658, 689, 98 S. Ct. 2018, 2035, 56 L. Ed. 611 (1978). It did not intend, by enacting section 1983, to create a cause of action against states to be brought in state courts. See Will, 491 U.S. at 66, 109 S. Ct. at 2310.

Allegations of state constitutional violations do not abrogate the State's immunity from suit, Morris, 916 S.W.2d at 531, and Wilson has not alleged consent. Suits seeking money damages for alleged violations of the Texas Constitution are prohibited even if equitable relief is available. See City of Beaumont v. Bouillion, 896 S.W.2d 143, 149 (Tex. 1995) (unlike suits for damages, suits for equitable relief for constitutional violations are not prohibited). In other words, Texas recognizes neither an implied private right of action nor a common law cause of action for damages resulting from a violation of the Texas Constitution. Id. at 147. Consequently, Wilson has failed to plead a legally cognizable claim for the constitutional violations he alleges.

Based upon our review of Wilson's pleadings and our application of the appropriate standard of review, we conclude that Wilson has failed to plead a cause of action against TWCC for which sovereign immunity has been waived. We further conclude that the defects in Wilson's pleadings cannot be cured by amendment. Accordingly, we overrule his first and third issues insofar as they relate to sovereign immunity.

 
Right to Judicial Review

In his second and fifth issues, Wilson argues that the trial court has jurisdiction to review his impairment rating and determine whether he is entitled to additional benefits even though his complaint was not resolved through the process prescribed by the Act. In his second issue, he contends that procedural due process and the Administrative Procedure Act (5) ("APA") create an inherent right to judicial review of TWCC decisions. In his fifth issue, he argues that he has exhausted all of the administrative remedies available to him and therefore the APA authorizes judicial review of TWCC's actions.

Administrative Procedure Act

Section 2001.171 of the APA provides that "[a] person who has exhausted all administrative remedies available within a state agency and who is aggrieved by a final decision in a contested case is entitled to judicial review...." Tex. Gov't Code Ann. 2001.171 (Vernon 2000). Wilson argues that this right is in addition to the right of judicial review provided in the Act and is available to him because TWCC prevented him from exhausting his administrative remedies. We disagree.

Although the language of section 2001.171 is general, the legislature intended the judicial-review provisions of the APA to be procedural only. Southwest Airlines v. Texas High Speed Rail Auth., 867 S.W.2d 154, 158 (Tex. App.-Austin 1993, writ denied). Therefore, section 2001.171 does not create a right of judicial review where the right does not exist by reason of another statute specifically granting the right. Id. Moreover, even if section 2001.171 created an independent basis for judicial review, Wilson has not exhausted his administrative remedies as required by the section.

Wilson could proceed no further in the administrative process with his challenge to his impairment rating because TWCC did not schedule a BRC. See Tex. Lab. Code Ann. 410.024 (Vernon 1996) (parties to a disputed compensation claim are not entitled to a contested case hearing or arbitration on the claim unless a BRC is conducted). However, the allegations in Wilson's pleadings affirmatively show that Wilson's inability to exhaust the administrative remedies prescribed by the Act resulted from his failure to provide the medical information necessary to support his dispute. Therefore, Wilson did not exhaust his administrative remedies. See Yamaha Motor Corp., U.S.A. v. Motor Vehicle Div., Texas Dep't of Transp., 860 S.W.2d 223, 229-30 (Tex. App.-Austin 1993, writ denied) (party who does not comply with procedural requirements does not preserve statutory right of judicial review). Wilson's fifth issue is overruled.

Procedural Due Process

Texas law recognizes no right to judicial review of an administrative order unless (1) a statute provides the right, (2) the order adversely affects a vested property right, or (3) the order otherwise violates some constitutional right. Gen. Servs. Comm'n, 39 S.W.3d at 599. Wilson contends that he has an inherent right to review in this case because (1) TWCC failed to schedule a BRC, (2) he was deprived of a vested property right, (3) the right of judicial review provided by the Act is unavailable because he was not allowed to complete the administrative process prescribed by the Act, and therefore (4) he has been denied procedural due process.

Procedural due process requirements attach only to the deprivation of constitutionally-protected property and liberty interests. Board of Regents v. Roth, 408 U.S. 564, 569, 92 S. Ct. 2701, 2705, 33 L. Ed. 2d 548 (1972). Property rights are created and their dimensions defined by existing rules or understandings stemming from independent sources such as state law. Id., 408 U.S. at 577, 92 S. Ct. at 2709. An individual's property interest is protected if he has a "legitimate claim of entitlement that is created, supported, or secured by rules or mutually explicit understandings." Alford v. City of Dallas, 738 S.W.2d 312, 316 (Tex. App.-Dallas 1987, no writ) (citations omitted) (emphasis in original). In other words, a vested property right is "a title, legal or equitable, to the present or future enjoyment of property, or to the present or future enforcement of a demand, or a legal exemption from the demand of another." National Carloading Corp. v. Phoenix, 142 Tex. 141, 176 S.W.2d 564, 570 (1944).

In his amended petition, Wilson does not specifically identify the vested property right of which he contends he has been deprived. The allegations in his petition contradict any assertion that he had a vested property right in a BRC or in additional workers' compensation benefits. Wilson's petition shows that his entitlement to a BRC was conditioned upon his furnishing certain documentation to TWCC. Moreover, he admits that he would be entitled to additional benefits only in the event his impairment rating is ultimately determined to be higher than five percent. Therefore, according to the above definition, Wilson has not shown that TWCC's actions or the

 

actions of TWCC's employees in their official capacities affected a vested property right. Consequently, he cannot show that he was deprived of procedural due process. Moreover, as previously explained, the APA does not create an independent right of judicial review in the instant case. Accordingly, Wilson's second issue is overruled.

 
Conclusion

The face of Wilson's amended petition affirmatively demonstrates an absence of jurisdiction in the trial court. Therefore, the trial court was not required to afford Wilson an opportunity to amend. Wilson also has not shown that he is entitled to judicial review of his complaints. Accordingly, we affirm the trial court's order granting TWCC's plea to the jurisdiction.

 

JAMES T. WORTHEN

Chief Justice

 

Opinion delivered November 13, 2003.

Panel consisted of Worthen, C.J. and DeVasto, J.

Griffith, J., not participating.

 
(PUBLISH)

1. The fifteen-week period was computed at the rate of three weeks for each percentage point of impairment. See Tex. Lab. Code Ann. 408.121(a)(1) (Vernon 1996).

2. A BRC is an informal proceeding aimed at resolving disputed issues by mutual agreement. Tex. Lab. Code Ann. 410.021 (Vernon 1996). If the dispute is not resolved, the parties then proceed to a contested case hearing, which is a formal evidentiary proceeding with sworn testimony and prehearing discovery. Tex. Lab. Code Ann. 410.151, 410.169 (Vernon 1996). Any party may appeal the contested case officer's decision to TWCC's Appeals Panel. Tex. Lab. Code Ann. 410.202 (Vernon 1996).

3. All statutory references are to the Texas Labor Code unless otherwise indicated.

4. If an employee is not certified as having reached maximum medical improvement before the expiration of 102 weeks after the date income benefits begin to accrue, TWCC must notify the treating doctor of the certification requirements. Tex. Lab. Code Ann. 408.123(c) (Vernon 1996).

5. Tex. Gov't Code Ann. 2001.001-.902 (Vernon 2000 & Supp. 2003).