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

ACCEPTED 15-25-00061-CV FIFTEENTH COURT OF APPEALS AUSTIN, TEXAS 6/20/2025 5:08 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 6/20/2025 TEXAS 5:08:03 PM AT AUSIN, TEXAS CHRISTOPHER A. PRINE Clerk

FRANCESCA OKONKWO, ADMINISTRATIVE LAW JUDGE, TEXAS DEPARTMENT OF INSURANCE, DIVISION OF WORKERS’ COMPENSATION, IN HER OFFICIAL CAPACITY and FORT BEND COUNTY, Appellants, v. JOSHUA DAVID HEILIGER, INDIVIDUALLY, AND ON BEHALF OF THE ESTATE OF LAUREN BRITTANE SMITH, DECEASED, AND ON BEHALF OF DEATH BENEFITS BENEFICIARIES JOSHUA DAVID HEILIGER AND EMMA DESTINY HEILIGER, Appellees

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

APPELLANT FORT BEND COUNTY’S MOTION TO AMEND BRIEF

TO THE HONORABLE JUDGE OF SAID COURT: COMES NOW, Appellant FORT BEND COUNTY, and would make and file this its Motion to Amend Brief pursuant to Tex. R. App. P. 10.5(b) and 38.7 and as grounds therefore would respectfully show the Court:

APPELLANT’S MOTION TO AMEND BRIEF Page 1 A. Introduction 1. Appellant is Fort Bend County. Appellee is 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.

2. To prevent confusion, Appellant moves the Court to allow filing of an amended brief to correct cites to the Clerk’s Record.

B. Facts 3. On May 15, 2025, Appellant Fort Bend County requested the Harris County District Clerk to supplement the Clerk’s record with its Exhibits A-F that were hand-delivered to the District Court on March 18, 2025 and that were incorporated into Fort Bend County’s First Amended Plea to the Jurisdiction, Motion to Dismiss and General Denial filed on March 17, 2025. (CR460, attached as Exhibit 1 and incorporated herein by reference) The exhibits were hand-delivered because they contained sensitive data pertaining to the deceased Lauren Smith.

4. Appellant Fort Bend County discovered after filing its Petition for Writ of Mandamus and Appellate Brief on June 12, 2025, that the Supplemental Clerk’s Record filed on May 23, 2025, contained the wrong exhibits.

5. On June 12, 2025, Appellant Fort Bend County requested the Harris County District Clerk to correct its error and file the correct exhibits. (Exhibit 2 attached and incorporated herein by reference) To facilitate the filing of the correct supplemental record, Appellant re- filed the sensitive-data exhibits on June 12, 2025, and named them to match its Petition for Writ of Mandamus and Appellate Brief. The Harris County District Clerk, however, sent up

APPELLANT’S MOTION TO AMEND BRIEF Page 2 a new “Supplemental Clerk’s Record Volume 1” on June 13, 2025, with all of the exhibits in one PDF.

6. This new supplemental record still does not comport with the cites in Fort Bend County’s Appellate Brief.

7. To minimize confusion and direct the Court to the correct page of the Clerk’s record, Appellant Fort Bend County now moves to file the Amended Brief attached hereto as Exhibit 3.

8. The proposed Amended Brief contains no substantive changes but only corrects cites references on seven pages.

C. Argument & Authority 9. A brief may be amended or supplemented whenever justice requires on whatever reasonable terms the court may prescribe. Tex. R. App. P 38.7.

10. “A court of appeals must not affirm or reverse a judgment or dismiss an appeal for formal defects or irregularities in appellate procedure without allowing a reasonable time to correct or amend the defects or irregularities.” Horton v. Stovall, 591 S.W.3d 567, 569 (Tex. 2019) citing Tex. R. App. P. 44.3.

11. For this Court to adequately consider the issue raised in this appeal, justice requires that Appellant Fort Bend County be allowed to amend its brief to include the correct cites to the Clerk’s record.

APPELLANT’S MOTION TO AMEND BRIEF Page 3 Prayer

12. For the reasons stated above, Appellant Fort Bend County prays the Court grant its Motion to Amend Brief pursuant to Tex. R. App. P. 38.7.

Respectfully submitted, DEAN G. PAPPAS LAW FIRM, PLLC By: /s/ Lisa M. Teachey Dean G. Pappas Texas Bar No. 15454375 [email protected] Mary M. Markantonis Texas Bar No. 12986800 [email protected] Lisa M. Teachey Texas Bar No. 24056416 [email protected] 8588 Katy Freeway, Ste. 100 Houston, Texas 77024 Telephone: 713-914-6200 Telecopier: 713-914-6201 ATTORNEYS FOR APPELLANT FORT BEND COUNTY

CERTIFICATE OF CONFERENCE I certify that on June 18, 2025, I conferred with Counsel for Appellant Heiliger and Counsel for Real Party in Interest Okonkwo and they are unopposed to this Motion.

/s/ Lisa M. Teachey Lisa M. Teachey

APPELLANT’S MOTION TO AMEND BRIEF Page 4 CERTIFICATE OF SERVICE I do hereby certify that a true and correct copy of the above and foregoing document has been forwarded to all parties and counsel of record listed below on June 20, 2025, by using the Court’s e-filing system as follows: Via eFile through the electronic filing manager Russell L. Morris Pablo A. Franco Andrew W. Bruce McBryde Franco, PLLC 11000 Richmond Avenue, Suite 350 Houston, Texas 77042 Attorneys for Appellee Joshua Heiliger, Individually and on Behalf of the Estate of Lauren Brittane Smith, Deceased, and on Behalf of Death Benefits Beneficiaries Joshua David Heiliger and Emma Destiny Heiliger, Real Party in Interest Via eFile through the electronic filing manager Ken Paxton Brent Webster Ralph Molina James Lloyd Ernest C. Garcia Sherlyn Harper Office of the Attorney General of Texas 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 Appellant Francesca Okonkwo, Administrative Law Judge in her official capacity, Real Party in Interest

APPELLANT’S MOTION TO AMEND BRIEF Page 5 Via eFile through the electronic filing manager LaVerne Chang Lovett Blvd. Houston, Texas 77006 Attorney for Greater Houston Psychiatric Associates, PLLC, Real Party in Interest

/s/ Lisa M. Teachey Lisa M. Teachey

APPELLANT’S MOTION TO AMEND BRIEF Page 6 3/17/2025 4:59 PM Marilyn Burgess - District Clerk Harris County Envelope No. 98552753 By: Chancesas Ougrah Filed: 3/17/2025 4:59 PM CAUSE NO . 2024-78536

In re Joshua David Heiliger, Individually, § and on behalf of the Estate of Lauren § Brittane Smith, deceased, and on behalf § IN THE DISTRICT COURT OF of Death Benefits Beneficiaries Joshua § David Heiliger and Emma Destiny § Heiliger, § Petitioner, § § § v. § HARRIS COUNTY, TEXAS § Texas Department of Insurance; § Francesca Okonkwo, Administrative Law § Judge, Greater Houston Psychiatric § Associate, PLLC, et al § 11 th JUDICIAL DISTRICT Respondents § §

REAL PARTY IN INTEREST'S FIRST AMENDED PLEA TO THE JURISDICTION ON PETITIONER'S FOURTH AMENDED VERIFIED ORIGINAL PETITION and PETITIONER'S SECOND APPLICATION FOR INJUNCTIVE RELIEF; REAL PARTY IN INTEREST'S FIRST AMENDED MOTION TO DISMISS; and REAL PARTY IN INTEREST'S FIRST AMENDED GENERAL DENIAL

TO THE HONORABLE JUDGE OF THIS COURT: COMES NOW Real Party in Interest FORT BEND COUNTY and files this First Amended Plea to the Jurisdiction and Motion to Dismiss and General Denial to Petitioner's Fourth Amended

EXHIBIT I I RPl's 1'1 Amended PTJ; General Denial; Motion to Dismiss -- Page 1 of 28 Verified Original Petition and Second Application for Injunctive Relief1, and in support of thereof, Real Party in Interest respectfully shows the Court as follows :

PLEA TO THE JURISDICTION The Texas Workers' Compensation Act2 ("Act") vests exclusive jurisdiction in the Texas Division of Workers' Compensation ("Division) to determine whether Lauren Smith's death is a compensable injury arising out of the course and scope of her employment, subject to judicial review after exhaustion of remedies .3 The Act would be rendered meaningless if the Division was granted such jurisdiction to determine workers' compensation 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. 4 To that end the Texas Legislature declared that the Division's 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 evidence she weighs to determine the elements of compensability. 5 In this case, there is an ongoing workers' compensation contested case hearing 6 before the Division regarding whether Ms. Smith died in the course and scope of her employment. The

For the ease of reading and to reduce the use of unwieldy titles, Real Party in Interest's reference to Petitioner's Motions and Applications in Cause No. 2024-78536 refers to Petitioner's live pleadings before the Court whether such pleading be original or subsequently amended and/or supplemented.

See Texas Labor Code, Title 5, Subtitle A See In re Prentis, 702 S.W.3d 762, 769 (Tex. App.-Houston [1 st 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 [1 st Dist.] 2011, orig. proceeding). Failure to exhaust administrative remedies before filing suit renders a trial court without subject matter jurisdiction . Id. at 810.

See In re Prentis at 769.

See Tex. Labor Code Ann. § 410.165 DWC 24229142-01; Lauren Smith v. Fort Bend County; Texas Dept. Ins. - Div. Workers' Comp. Houston East Field Office.

RP I's 1st Amended PTJ; General Denial; Motion to Dismiss -- Page 2 of 28 Division has issued a subpoena for Real Party in Interest to obtain the mental health records of Ms. Smith; the basis for seeking this evidence is that Petitioner is relying on medical opinions that stress was a factor in Ms. Smith's death . Petitioner now is asking this District Court to not only step into the middle of a pending dispute resolution process regarding Petitioner's right to workers' compensation death benefits but for the District Court to overrule the Division's order to obtain mental health records evidence. Basically Petitioner is arguing that the Division does not have the authority to issue a subpoena to obtain evidence required to exercise its jurisdiction in a workers' compensation dispute because the evidence at issue is mental health records. But that is not the standard. 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. 7 Further requiring Petitioner to exhaust his administrative remedies prior to seeking judicial review does not deprive him of any legal rights. 8 On the contrary, it guarantees the Legislative intent to ensure "an orderly procedure to enforce those rights. " 9 Petitioner has three layers of protection at the workers' compensation administrative level: (1) Benefit Review Conference; (2) Contested Case Hearing; and (3) Appeals Panel Decision. If Petitioner is aggrieved of a final Appeals Panel Decision, he has an additional three layers of protection in the judicial system (1) District Court; (2) Court of Appeals; and (3) Texas Supreme Court. Petitioner is trying to circumvent the system Ms. Smith opted into when she elected to receive workers' compensation

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).

See In re Prentis at 772-73.

Id. at 773, quoting Berretez v. Mesquite Logistics USA, Inc., 562 S. W3d 69, 73 (Tex. App.-San Antonio 2018, no pet.) ("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 .").

RPl's 1' Amended PTJ; General Denial; Motion to Dismiss -- Page 3 of 28 coverage. 10 Petitioner's plea 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 law 11 and would be antithetical to the purpose of the Workers' Compensation Act.

The issue in this matter is not whether the mental health records are relevant, but rather who decides relevancy at this stage. Real Party in Interest argues that the Division does pursuant to the Legislative grant of authority in the Texas Labor Code. Real Party in Interest'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.

MOTION TO DISMISS Petitioner's Fourth Amended Verified Original Petition for Declaratory Judgment, Application for Writ of Mandamus, and request for injunctive relief should be denied in all things 12 : A A declaratory action is not proper in this case because there is a pending matter between the same parties in which the issues can be adjudicated. That pending matter is the administrative dispute resolution process pending now before the Division of Workers' Compensation.

B . Petitioner has no statutory right to judicial review because he has not exhausted his administrative remedies and been aggrieved of a final Appeals Panel decision at the Division of Workers' Compensation. 13 Petitioner has no inherent right to judicial review because the confidentiality of mental health records is not an absolute privilege, but rather a qualified privilege because Texas Law specifically authorizes the disclosure of

Id. at 768 (Ms. Smith could have retained her common-law right to be before this Court on this issue by opting out of coverage under the ACT).

11 See Tex. Labor Code Ann . §§ 410 .002; 410.003; 410.158; 410.165; 410.251. See also 28 TAC§§ 142.1; 142.2; 142.12; and 142.13.

Real Party in interest incorporates herein by reference Petitioner's Exhibits A-O.

See Tex. Labor Code Ann . § 410.251.

RPI's 1'1 Amended PTJ; General Denial; Motion to Dismiss -- Page 4 of 28 confidential mental health records in a judicial or administrative proceeding where the court or agency has issued an order or subpoena. 14 C. Petitioner has not established the right to mandamus relief for the following reasons: a. The Division has not acted beyond the scope of its lawful authority because the Division Administrative Law Judge is the sole judge of the relevance and materiality of the evidence offered and of the weight and credibility to be given to the evidence, 15 and the ALJ may allow parties to conduct discovery as necessary. 16 Furthermore, Texas Law contemplates that mental health records can be subjected to the subpoena power of a judicial or administrative proceeding. 17 The ALJ has not clearly abused her discretion in ordering the production of these records when Petitioner has put Ms. Smith's mental condition at issue by seeking opinions that Ms. Smith suffered from stress that may have contributed to her death and her psychiatrist Dr. Marcellus treated Ms. Smith for Post-Traumatic Stress Disorder 18 ; and b. Petitioner has several adequate remedies at law. The subpoena at issue requires any records obtained by Real Party in Interest to be held confidentially. 19 The Texas Labor Code requires information relating to a workers' compensation claim to remain confidential when released to any person, except when used in court for the purposes of an appeal. 20 Petitioner has at least four other remedies: an Appeals Panel review; judicial review in district court; appellate review in the courts of appeal; final review in the Texas Supreme Court.

D. An ultra vires claim does not lie for the same reasons mandamus is not proper here. The Division has not exceeded its authority in conducting discovery, ruling on discovery and ordering the disclosure of records authorized by statute to be disclosed via a subpoena. Ms. Smith's mental health records are not being disclosed publicly. The records are being disclosed as an authorized disclosure contemplated by the Texas Health and Safety Code, which says this is an authorized disclosure. 21 E. Ms. Smith's mental health records are protected by the privilege of confidentiality.

However, it is not an absolute privilege. It is a qualified privilege that can be pierced in judicial proceedings when a party makes the condition a part of its claim or defense. 22 The privilege is severely limited whenever the mental health condition is relevant to any party's claim or defense. Whether the mental health condition is part of a party's claim or defense See TEX. HEALTH & SAFETY CODE ANN.§ 611.006(a)(11) See TEX. LABOR CODE ANN.§ 410.165 See TEX. LABOR CODE ANN.§ 410.162 See TEX. HEALTH & SAFETY CODE ANN.§ 611.006(a)(11) See Exhibit B, Exhibit C, Exhibit D, Exhibit E and Exhibit F, incorporated herein by reference. Real Party in Interest has not filed Exhibits B, C and D but has emailed a copy to Petitioner and will hand-deliver a copy to the Court contemporaneously with this filing.

See Real Party in Interest's Exhibit A- The January 27, 2025, Deposition Subpoena See TEX. LABOR CODE ANN.§ 402.083(a) and § 402 . 086(a) See TEX. HEALTH & SAFETY CODE ANN.§ 611.006(a)(11) See TEX. HEALTH&SAFETYCODEANN. § 611.006(a)(11). See also TEX. R, EVID. Rule 510 ("If any party relies on the patient's physical, mental, or emotional condition as a part of the party's claim or defense and the communication or record is relevant to that condition.).

RPl's 1•t Amended PTJ; General Denial; Motion to Dismiss -- Page 5 of 28 is determined from the face of the pleadings 23 and then, if necessary, from the allegedly privileged records;24 and F. Petitioner does not have a right to injunctive relief because Petitioner has not shown 1) a cause of action against the Division; (2) a probable right to the relief sought; and (3) a probable, imminent, and irreparable injury in the interim.

Therefore, Petitioner's Fourth Amended Verified Original Petition for Declaratory Judgment, Application for Writ of Mandamus, and request for injunctive relief should be denied in all things because (1) there is a pending matter in which the issue at bar can be resolved; (2) Petitioner has failed to establish a cause of action against the Division; a probable right to the relief sought; and a probable, imminent, and irreparable injury in the interim; (3) the records at issue are not protected by an absolute privilege but rather a qualified privilege that Texas Law recognizes exceptions for disclosure in judicial and administrative proceedings .

GENERAL DENIAL Real Party in Interest generally denies each and every allegation in Petitioner's Fourth Amended Verified Original Petition for Declaratory Judgment, Application for Writ of Mandamus, and request for injunctive relief and demands strict proof thereof

PROCEDURAL POSTURE This is a workers ' compensation dispute currently pending before the Texas Department of Insurance - Division of Workers' Compensation (DWC) at the administrative dispute resolution process as required by the Texas Workers' Compensation Act. A Contested Case Hearing (CCH)

In this case the pleading is the August 8, 2024 Benefit Review Conference Report that defines the disputes and sets out the parties' contentions, attached as Exhibit Band Exhibit F and incorporated herein by reference.

Real Party in Interest has not filed Exhibit B but has emailed a copy to Petitioner and will hand -deliver a copy to the Court contemporaneously with this filing.

See In re Richardson Motorsports, Ltd., 690 S.W.3d 42, 56 (Tex. 2024) (orig. proceeding).

RPl's 1'1 Amended PTJ; General Denial; Motion to Dismiss -- Page 6 of 28 is set for May 13, 2025, at the DWC Houston East Field Office. No final order in this matter has been issued by the Texas Department of Insurance - Division of Workers' Compensation.

Petitioner is seeking workers' compensation benefits individually as the surviving spouse of Lauren Brittane Smith (Decedent) and on behalf of their adopted child Emma Destiney Heiliger.

Lauren Smith was a paramedic for Fort Bend County EMS . Ms. Smith passed away at home on the living room sofa on April 10, 2023. The issue being disputed at the workers' compensation administrative level is whether Ms. Smith died in the course and scope of her employment.

Petitioner filed a death benefit claim on April 2, 2024, with the Division of Workers' Compensation. Real Party in Interest Fort Bend County EMS (Fort Bend County) is disputing compensability.

During the DWC contested case hearing process, Real Party in Interest Fort Bend County sought and was granted an administrative subpoena for mental health records from Dr. John Marcellus, the doctor who was prescribing Ms. Smith ADHD medications. 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. On September 19, 2024, DWC Administrative Law Judge Francesca Okonkwo, who presides over this DWC administrative dispute, ordered the production and disclosure of Ms. Smith's mental health records spanning January 1, 2020 through April 10, 2023. ALJ Okonkwo's order expressly overruled Petitioner's objection to the administrative subpoena. On October 28, 2024, Real Party in Interest filed a motion to compel the disclosure of the mental health records. Petitioner filed a response the very next day. The Contested Case Hearing, at this juncture, was set for November 15, 2024.

RP I's 1st Amended PTJ; General Denial; Motion to Dismiss -- Page 7 of 28 On November 12, 2024, unbeknownst to Real Party in Interest, Petitioner 25 filed an application for a temporary restraining order in the Harris County District Courts to prevent Real Party in Interest from enforcing an administrative subpoena ordered by the DWC Administrative Law Judge. Petitioner sought and received a hearing on this TRO November 13, 2024, with no notice to Real Party in Interest, although Petitioner was able to notify Respondents at the Texas Department of Insurance, who objected at the hearing . Despite the objection, the District Court granted the TRO preventing the disclosure of the records yet requiring the Division of Workers' Compensation to go forth with the November 15, 2024, Contested Case Hearing. Real Party in Interest was not notified until after the TRO had been granted on November 13, 2024 . On that same day Real Party in Interest filed an emergency motion to modify the TRO that was heard the next day, November 14, 2024, and the District Court granted a modification to the TRO allowing the Division of Workers' Compensation to continue the CCH until the TRO could be resolved.

On December 5, 2024, this Court began hearing Petitioner's "Third Amended Verified Petition for Declaratory Judgment, Application for Writ of Mandamus, Temporary Restraining Order, Temporary Injunction, Permanent Injunction" and Real Party in Interest's "Second Amended Plea to the Jurisdiction and First Amended Motion to Dismiss and Response to Petitioner's Motion to Strike and General Denial" During a break in that hearing, Petitioner and Real Party in Interest entered into the following Rule 11 Agreement that was filed with the Court:

Real Party in Interest submitted a DWQ to Dr. John Marcellus on December 10, 2024.

Petitioner responded on December 16, 2024, objecting to almost half of the questions. Real Party in Interest attempted on numerous occasions to confer with Petitioner's counsel via telephone to

For the ease of reading and to reduce the use of unwieldy titles, Real Party in Interest's reference to Petitioner's Motions and Applications in Cause No. 2024-78536 refers to Petitioner's live pleadings before the Court whether such pleading be original or subsequently amended and/or supplemented.

RPl's 1'1 Amended PTJ; General Denial; Motion to Dismiss -- Page 8 of 28 no avail. When December 20, 2024 arrived, no agreement had been reached on the DWQ, so Real Party in Interest notified Petitioner that the last two provisions of the Rule 11 had become effective and that Real Party in Interest planned to pursue its legal remedies.

On December 27, 2024, Real Party in Interest filed "Carrier's Motion for Additional Discovery" seeking a Deposition Subpoena of Dr. Marcellus pursuant to the Subpoena Rule for Contested Case Hearings before the Division of Workers' Compensation. See 28 TAC 142.12(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.. . "). Petitioner submitted written objections on December 30, 2024.

On January 24, 2025, Real Party in Interest amended the request to state a date and time for the deposition. While Petitioner indicated he was opposed to the amended motion in a conference with Real Party in Interest's counsel, Petitioner filed no objection. Administrative Law Judge Okonkwo granted Real Party in Interest's Deposition Subpoena of Dr. Marcellus on January 27, 2025.

On February 6, 2025, Real Party in Interest withdrew the original Subpoena dated September 19, 2024, and noticed Petitioner it would now serve the January 27, 2025, Deposition Subpoena.

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. That

RPl's 1' Amended PTJ; General Denial; Motion to Dismiss -- Page 9 of 28 same day Petitioner filed its "Petitioner's Application for Second Temporary Restraining Order and Request for Hearing on Petitioner's Application for Temporary Injunction."

On February 18, 2025, this Court issued a temporary restraining order on this matter.

PLEA TO THE JURISDICTION

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 ofSunnyvale, 964 S.W.2d 922, 928 (Tex. 1998); Texas Ass'n of Business v. Texas Air Control Ed, 852 S.W.2d 440, 444-45 (Tex. 1993). It is a question of law for the court. See Mayhew, 964 S.W.2d 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 [l51 Dist.] 1996, no writ), emphasis added.

Under the Texas Workers' Compensation Act ("Act"), the Legislature has vested the Texas Department of Insurance - Division of Workers' Compensation ("Division") with authority to determine whether a claimant is entitled to workers' compensation benefits. See American Motorists Ins. Co. v. Fodge, 63 S.W.3d 801 (Tex. 2001). See also TEX. LABOR CODE§ 408.001.

This exclusive jurisdiction provision requires that a claimant or employer in a workers' compensation case must exhaust all administrative remedies before seeking judicial review of the agency's action. See In re Entergy Corp., 142 S.W.3d 316, 321-322 (Tex. 2004).

A party may not seek judicial review under the Act without first exhausting his administrative remedies. See In re Prentis, 702 S.W.3d 762, 769 (Tex. App.-Houston [l51 Dist.] 2024, no pet.), quoting In re Metro. Transit Auth., 334 S.W.3d 806, 810-11 (Tex. App.-Houston

RPI's 1'1 Amended PTJ; General Denial; Motion to Dismiss -- Page 10 of 28 [l51 Dist.] 2011, orig. proceeding). (Failure to exhaust administrative remedies before filing suit renders a trial court without subject matter jurisdiction. Id at 810).

In Prentis, the First Court of Appeals 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. Id. at 769, citing Henry v. Dillard Dept. Stores, Inc., 70 S.W.3d 808, 809 (Tex. 2002); also citing In re Metro. Transit Auth., 334 S.W.3d 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 1~ LibertyMut. Jns. 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 [14 th Dist.] 2003, orig. proceeding).

When the Legislature "expressly confers a power on an agency, it also impliedly intends that the agency have whatever powers are reasonably necessary to fulfill its express functions or duties ... "See Liberty Mut. Ins. Co. v. Adcock 492, 494 (Tex. 2013), quoting Pub. Util. Comm'n of Tex. 1~ 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:

o Texas Labor Code§ 410.158 -Authorizes limited discovery during the dispute resolution process at the Division; 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;

RPI's 1'1 Amended PTJ; General Denial; Motion to Dismiss --Page 11 of 28 o Texas Labor Code § 410.165 -Authorizes the administrative law judge as the sole judge of the relevance and materiality of the evidence offered and of the weight and credibility to be given to the evidence. o 28 Tex. Admin. Code § 141.4 -- Pertinent information at a Benefit Review Conference is defined as all information relevant to the resolution of the disputed issue or issues to be addressed at the benefit review conference, including but not limited to, among other things, the injured employee's medical records. o 28 Tex. Adm in. Code § 142.2 -- Authorizes the authority of the Division ALJ to, among other things, issue a subpoena on its own motion or at the request of a party if the ALJ determines the party has a good cause, rule on admissibility, and determine the weight and credibility of evidence. o 28 Tex. Admin. Code § 142.12 -Allows the Division ALJ to issue a subpoena on its own motion or at the request of a party upon a determination of relevancy to the disputed issue; and 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.

Furthermore, Texas jurisprudence expressly recognizes that mental health records, like the ones at issue here, are obtainable in controversies where the mental condition is at issue. Under Texas Rule of Evidence 510(d)(5) the privilege of confidentiality for mental health records does not apply if any party relies on the patient's physical, mental, or emotional condition as a part of the party's claim or defense and the communication or record is relevant to that condition. Under TEX. HEALTI-I & SAFETY CODE § 611.006(a)(ll) the Division's Order issuing the deposition subpoena is an authorized disclosure of confidential information in judicial or administrative proceeding. This statute indisputably allows that a professional may disclose confidential information in a judicial or administrative proceeding where the court or agency has issued an order or subpoena.

Requiring a party to exhaust his administrative remedies prior to filing suit does not deprive him of any legal rights. In re Prentis at 772. On the contrary, the First Court of Appeals found that rather than depriving a party of his rights, the requirement to exhaust the administrative

RPI's 151 Amenclecl PTJ; General Denial; Motion to Dismiss -- Page 12 of 28 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

The Texas Supreme Court has opined that the Uniform Declaratory Judgments Act codified in the Texas Civil Practice & Remedies Code Sections 37.001-.011 cannot be used to bolster a Court's jurisdiction. See Tex. Ass'n of Bus. v. Tex. Air Control Bd.;., 852 S.W.2d 440, 444 (Tex . 1993). In that case the Court held that the Uniform Declaratory Judgments Act statutes are " .. . merely a procedural device for deciding cases already within a court's jurisdiction rather than a legislative enlargement of a court's power, permitting the rendition of advisory opinions." Id

In this case Petitioner has not exhausted his remedies. A Contested Case hearing is still pending before the Division of Workers' Compensation. No final order has been issued by the Division. And a suit for declaratory judgment does not expand subject matter jurisdiction when the Legislature has vested an agency with exclusive jurisdiction by statute.

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 Petitioner to seek redress in district court deprives the Division of Workers' Compensation the chance to resolve disputed fact issues and apply its statutorily created authority, thereby distorting the balances struck in the Texas Workers' Compensation Act and frustrating the Legislature's intent. Further, an extra-statutory cause of action builds additional costs into the system by increasing litigation expenses to employees, insurers, and employers.

RPl's 1' Amcnclccl PTJ; General Denial; Motion to Dismiss -- Page 13 of 28 Because Petitioner's failure to exhaust administrative remedies is jurisdictional, Real Party in Interest Fort Bend County asks this Court to grant its Plea to the Jurisdiction and dissolve the temporary restraining order entered February 18, 2025 . Real Party in Interest further asks this Court to grant its Plea to the Jurisdiction and dismiss Petitioner'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.

GENERAL DENIAL and MOTION TO DISMISS

Real Party in Interest incorporates the foregoing as if fully set out herein. Real Party in Interest generally denies each and every allegation in Petitioner's Fourth Amended Verified Original Petition for Declaratory Judgment, Application for Writ of Mandamus, and request for injunctive relief and demands strict proof thereof.

A. Declaratory Judgment Action is Not Proper

1. A Pending Matter Exists

A declaratory action is not proper in this case because there is a pending matter between the same parties in which the issues can be adjudicated. That pending matter is the administrative dispute resolution process pending now before the Division of Workers' Compensation. As a general rule, "an action for declaratory judgment will not be entertained ifthere is pending, at the time it is filed, another action or proceeding between the same parties and in which may be adjudicated the issues involved in the declaratory action . See Texas Liquor Control Board v. Canyon Creek Land C01p., 456 S.W.2d 891, 895 (Tex. 1970); Space Master Int'l, Inc. v. Porta- Kamp Mfg. Co., 794 S.W.2d 944, 946-47 (Tex. Civ. App .-Houston [l51 Dist.] 1990, no writ).

RPI's 1'1 Amended PTJ; General Denial; Motion to Dismiss -- Page 14 of 28 A suit for declaratory judgment does not allow a district court to review an agency action that is not otherwise reviewable. See City of Houston v. Williams, 99 S.W.3d 709, 712-13 (Tex .

App .-Houston [14 th Dist.] 2003 , no pet.). When a statute provides an avenue for attacking an agency order, a declaratory judgment action will not lie. See Strayhorn v. Raytheon E-Systems, Inc., 101 S.W.3d 558, 572 (Tex. App.-Austin 2003 , pet. denied).

Under the Act, the Division ALJ is the sole judge of the relevance and materiality of the evidence offered and of the weight and credibility to be given to the evidence. See TEX. LABOR CODE Ann . § 410 .165. The Division may issue a subpoena on its own motion or at the request of a party if the administrative law judge detennines the party has a good cause. See 28 TEX. ADMIN.

CODE§ 142.12.

The Adopted Rules governing administrative proceedings provide a mechanism to challenge a subpoena issued during an administrative proceeding. For the same reasons that mandamus is not proper, a dee action is not proper when there is another proceeding that affords a remedy. The Act provides that the Division ALJ may conduct discovery and issue subpoenas and seek enforcement of its subpoenas. See TEX. LABOR CODE § 410 .158 and § 410 .162; 28 TEX. ADMIN. CODE § 142.12 and § 142.13 . See 28 TEX. ADMIN. CODE § 142.2. See TEX. Gov'T CODE § 2001.201.

While there is no specific grant of authority to challenge a subpoena issued by a Division ALI, there is a remedy available for the target of a Division subpoena: the target can stand idly by and do nothing until the Division or the party seeking the subpoena moves to enforce the subpoena under Government Code § 2001.201. This provision allows the Division or party seeking to enforce the subpoena to bring such as the mental-health information privilege Petitioner argues under TEX. HEALTH & SAFETY CODE§ 611.003 . And the Division or Fort Bend could argue that

RPI's 1'1 Amended PTJ; General Denial; Motion to Dismiss -- Page 15 of 28 Health and Safety Code § 611.006 provides an exception to allow the provider to disclose the records pursuant to a subpoena. See TEX. HEALTII & SAFETY CODE § 611.006(a)(ll) ("A professional may disclose confidential information in ... a judicial or administrative proceeding where the court or agency has issued an order or subpoena."). Or the Division or Fort Bend could argue the Texas Rules of Evidence provide an exception to the privilege. See. TEX. R . Evm.

510(d)(5) (The mental health information privilege 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.).

If the Division or Fort Bend sought an enforcement action under Texas Government Code § 2001.201, Petitioner would have all the due process rights and arguments he is trying to make here by hop, skipping and jumping over the required process codified in the Texas Workers' Compensation Act.

Or Petitioner could claim his privilege at the workers' compensation contested case hearing and if neither the Division nor Fort Bend seeks enforcement, the privilege would remain unpierced.

Either way there is already a proceeding in place that affords Petitioner exactly what he seeks here. Therefore, a dee action is not proper.

2. No Statutory Authority Has Been Exceeded

A declaratory judgement is not proper in this matter because no statutory authority has been exceeded.

RPl's 1'1 Amended PTJ; General Denial; Motion to Dismiss•· Page 16 of 28 The power of courts to issue declaratory judgments under the UDJA in the face of administrative proceedings is limited. Texas Courts have held that when a statute provides an avenue for attacking an agency order, a declaratory judgment action will not lie to provide redundant remedies. See Beacon Nat. Ins. Co. 1~ Montemayor, 86 S.W.Jd 260, 267 (Tex. App.- Austin 2002, no pet.), citing Young Chevrolet, Inc. v. Texas Motor Vehicle Bd., 974 S.W.2d 906, 911 (Tex.App.-Austin 1998, pet. denied). "An administrative body is entitled to exercise its statutory duties and functions without interference from the courts, unless it exceeds that statutory authority. Id., citing Westheimer Indep. Sch. Dist. v. Brockette, 567 S.W.2d 780, 785 (Tex. 1978). A party may employ a declaratory judgment action to intervene in administrative proceedings only when an agency is exercising authority beyond its statutorily conferred powers. See Nuchia 1~ Woodruff, 956 S.W.2d 612, 615-16 (Tex. App.-Houston [14 th Dist.] 1997, pet. denied).

The Division is acting completely within its statutory authority. The Texas Labor Code provides discovery to parties in a dispute. TEX. LAB. CODE§§ 410.158 (a); 410.162. The Division promulgated rules to conduct discovery. 28 TEX. ADMIN. CODE §§ 142.2, 142.12, 142.13. A Division ALJ has authority to grant additional discovery other than deposition by written questions, oral depositions and interrogatories. TEX. LAB. CODE§ 410.162. The Adopted Rules authorize the Division ALJ to issue subpoenas. 28 TEX. ADMIN. CODE§ 142.2(1).

The Act even built in a process to prevent a Division ALJ from exceeding her authority when it comes to subpoenas by requiring an ALJ to seek district court permission under Texas Government Code 2001.201, supra, to enforce its subpoenas.

So, again, all of Petitioner's rights are intact and he has a specifically carved out path to address in a district court all of the issues he raises here if and when the Division or Fort Bend County tries to enforce the subpoena.

RPl's 1'1 Amended PTJ; General Denial; Motion to Dismiss -- Page 17 of 28 B. No Inherent Nor Statutory Right to Judicial Review Petitioner has no statutory right to judicial review because he has not exhausted his administrative remedies and been aggrieved of a final Appeals Panel decision at the Division of Workers' Compensation.

Real Party in Interest affirmatively asserts that Petitioner waived any rights to common law remedies when he elected to proceed under the Texas Workers' Compensation Act. Under Texas Labor Code § 406.034(b), Ms. Smith could have retained the common-law right of action to recover damages for personal injuries or death. Instead she chose to accept the remedies under the Texas Workers' Compensation Act with all its restrictions, requirements and procedures. Just because Petitioner doesn't like the rules of the procedure Ms . Smith chose, he cannot try to bend his claim into a common-law right of action to benefit from a different set of rules.

Petitioner has no inherent right to judicial review because the confidentiality of mental health records is not an absolute privilege, but rather a qualified privilege because Texas Law specifically authorizes the disclosure of confidential mental health records in a judicial or administrative proceeding where the court or agency has issued an order or subpoena.

TEX. HEALTH & SAFETY CODE § 611 is the authority that creates the privilege of confidentiality for mental health records . Section 611.002 prohibits the disclosure of these confidential communications between a patient and a professional, as well as the records of the identity, diagnosis, evaluation, or treatment of a patient that are created or maintained by a professional. Section 611.003(a)(2) in conjunction with Section 611.004 (a)(S) allow Petitioner to claim this privilege as the representative of Ms . Smith. Section 611.005 prescribes the remedy for an improper disclosure or failure to disclose confidential mental health records.

RPI's 1'1 Amended PTJ; General Denial; Motion to Dismiss -- Page 18 of 28 But most importantly, Section 611.006(a) authorizes 11 instances in which the disclosure of confidential information is authorized. All of the authorized disclosures enumerated in this section have to do with a judicial or administrative proceeding. Petitioner has cited Texas Health & Safety Code§ 611 .004 as the authority for exceptions to disclosure, but those exceptions apply only if there is no judicial or administrative proceeding. The Texas Legislature specifically carved out separate exceptions in § 611.006 that authorize disclosure in judicial and administrative proceedings. Petitioner has wholly ignored the authority that applies in this matter.

Section 611.006(a)(ll) specifically authorizes the disclosure of confidential mental health information in a judicial or administrative proceeding where the court or agency has issued an order or subpoena. This statute explicitly provides an exception to the privilege of confidentiality of mental health records.

Additionally the Texas Rules of Evidence provide another exception to the privilege of confidentiality of mental health records. Under Rule 5 I0(d)(S), the privilege does not apply "[i]f any party relies on the patient's physical, mental, or emotional condition as a part of the party's claim or defense and the communication or record is relevant to that condition." The exception to the qualified privilege and the rules of evidence provide for the discovery of these mental health records because Petitioner has put her mental condition at issue.26 C. No Right to Mandamus Relief The Texas Supreme Court has established a two-prong test that courts apply to petitions for writ of mandamus. Walker v. Packer, 827 S.W.2d 833 (Tex. 1992) (orig. proceeding). Under

26 See Exhibit B, Exhibit C, Exhibit D, Exhibit E and Exhibit F incorporated herein by reference. Real Party in Interest has not filed Exhibits B, C and D but has emailed a copy to Petitioner and will hand-deliver a copy to the Court contemporaneously with this filing.

RPl's 1'1 Amended PTJ; General Denial; Motion to Dismiss -- Page 19 of 28 this standard, the trial court must have abused its discretion, and as a result, the Petitioner must have been left without an adequate remedy on appeal. Id at 839-40.

To determine a clear abuse of discretion, a reviewing court may not substitute its judgment for that of the administrative tribunal to resolve matters committed to that tribunal's discretion of factual issues. Id at 839. Petitioner must establish there is only one result that the Division court could have reasonably reached. Id. at 840. Because reasonable minds differ, the fact that one court would have decided the case differently will not give rise to an abuse of discretion "unless it is shown to be arbitrary and unreasonable." Id. Mandamus relief will not issue when "the law has provided another plain, adequate, and complete remedy." Aycock v. Clark, 94 Tex. 375, 60 S.W. 665, 666 (1901); see also Canadian Helicopters v. Wittig, 876 S.W.2d 304, 305-06 (Tex. 1994) (orig. proceeding) (affirming that mandamus relief must be the exclusive remedy for the parties); Holloway v. Fifth Court ofAppeals, 767 S.W.2d 680, 684 (Tex. 1989) (orig. proceeding) (noting that parties must have no other available appellate relief). It is a "'fundamental tenet' of mandamus practice" that an alternative appellate remedy must not exist before a court may grant mandamus relief In re State Bar of Tex., 113 S.W.3d 730, 734 (Tex. 2003) (orig. proceeding) (quoting Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992) (orig. proceeding)).

The Division has not acted beyond the scope of its lawful authority because the Division Administrative Law Judge is the sole judge of the relevance and materiality of the evidence offered and of the weight and credibility to be given to the evidence. and the ALJ may allow parties to conduct discovery as necessary. See TEX. LABOR CODE Ann . § 410.165 and § 410.162.

Furthermore, Texas law contemplates that mental health records can be subjected to the subpoena power of a judicial or administrative proceeding. See TEX. HEALTH & SAFETY CODE §

RPl's 1st Amended PTJ; General Denial; Motion to Dismiss -- Page 20 of 28 l.006(a)(l l). The ALJ has not clearly abused her discretion in ordering the production of these records when Petitioner has put Ms. Smith's mental condition at issue by seeking opinions that Ms. Smith suffered from stress that may have contributed to her death and her psychiatrist Dr. Marcellus treated Ms. Smith for Post-Traumatic Stress Disorder. 27 Petitioner has several adequate remedies at law. The subpoena at issue requires any records obtained by Real Party in Interest to be held confidentially.28 The Texas Labor Code requires information relating to a workers' compensation claim to remain confidential when released to any person, except when used in court for the purposes of an appeal. See TEX. LABOR CODE Ann. § 402.083(a) and§ 402.086(a). Petitioner has at least four other remedies : an Appeals Panel review; judicial review in district court; appellate review in the courts of appeal ; final review in the Texas Supreme Court.

D. Ultra Vires Does Not Lie To sustain an ultra vires claim, a party must allege, and ultimately prove, that the named governmental employee acted without legal authority or failed to perform a purely ministerial act." Chambers-Liberty Ctys. Navigahon Dist. ,~ State, 575 S.W.3d 339, 344-45 (Tex. 2019), citing City of El Paso v. Heinrich, 284 S.W.3d 366, 372 (Tex. 2009). Retrospective monetary relief is generally barred. Heinrich at 374. Only prospective injunctive relief is available on an ultra vires claim. Id. at 374-77.

An ultra vires claim depends on the scope of the state official's authority, not the quality of the official's decisions. Honors Acad., Inc. ,~ Tex. Educ. Agency, 555 S.W.3d 54, 68 (Tex. 2018),

See Exhibit B, Exhibit C, Exhibit D, Exhibit E and ExhibitF, incorporated herein by reference. Real Party in Interest has not filed Exhibits B, C and D but has emailed a copy to Petitioner and will hand-deliver a copy to the Court contemporaneously with this filing.

See Real Party in Interest's Exhibit A- The January 27, 2025, Deposition Subpoena

RPI's 1'1 Amended PTJ; General Denial; Motion to Dismiss -- Page 21 of 28 citing Hall l~ McRaven, 508 S.W.3d 232, 234 (Tex. 2017). Thus, it is not an ultra vires act for an official to make an erroneous decision within the authority granted. Id. To fall within the ultra vires exception, a suit must allege that a state official acted without legal authority or failed to perform a purely ministerial act; it must not attack the official's exercise of discretion. Tex. Dep'tofins., Div. ofWorkers'Comp. v. Brumfield, No. 04-15-00473-CV, 2016 WL 2936380, at *4-5 (Tex. App.-San Antonio May 18, 2016, no pet.). In that case the pleadings regarding the Commissioner of the Texas Department of Insurance simply stated that he acted beyond his statutory authority in failing to properly apply, interpret, and enforce the statute and rules for which declaratory relief was sought, Id. The Court held the pleadings failed to include any specific facts indicating that the Commissioner acted without legal authority or failed to perform a purely ministerial act. Id. Rather, the focus of the allegations was a discretionary act - - the Division's decision to deny a claim for workers' compensation. Id. "Complaints that an official reached a wrong result when exercising its delegated authority are insufficient to state an ultra vi res claim of exceeding statutory authority." Id., quoting Moers v. Harris Co. Appraisal Dist., 469 S.W.3d 655, 666 (Tex . App.-Houston [l5t Dist.] 2015, pet. denied). The Brumfield Court ultimately held that Brumfield's pleadings affirmatively demonstrated that his claims against the Commissioner did not fall within the ultra vires exception. Id. For these reasons, an ultra vires claim does not lie in this case. The Division has not exceeded its authority in conducting discovery, ruling on discovery and ordering the disclosure of records authorized by statute to be disclosed via a subpoena. Ms . Smith's mental health records are not being disclosed publicly. The records are being disclosed as an authorized disclosure contemplated by the Texas Health and Safety Code, which says this is an authorized disclosure. 29

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

RPI's 1'1 Amenclecl PTJ; General Denial; Motion to Dismiss -- Page 22 of 28 E. Privilege of Confidentiality Is Not Absolute Ms. Smith's mental health records are protected by the privilege of confidentiality. 30 However, it is not an absolute privilege. R.K. v. Ramirez, 887 S.W.2d 836, 840 (Tex. 1994). It is a qualified privilege that can be pierced in judicial proceedings when a party makes the condition a part of its claim or defense.31 In fact, a number of exceptions, most commonly the patient-litigant exception, limits the scope of the privilege. Ramirez at 840. "Additionally, a party may not assert one of the privileges in order to withhold ' evidence which would materially weaken or defeat, the asserting party's claims."' Id., quoting Ginsberg, 686 S.W.2d at 107. Such a prohibited application of the privilege is an "offensive use." Id. Whether the mental health condition is part of a party's claim or defense is determined from the face of the pleadings 32 and then, if necessary, from the allegedly privileged records. See In re Richardson Motorsports, Ltd., 690 S.W.3d 42, 56 (Tex. 2024) (orig. proceeding).

Neither the physician-patient privilege nor the mental health privilege existed at common law. Ramirez at 839-40, citing Ginsberg v. Fifth Court of Appeals, 686 S.W.2d 105, 107 (Tex. 1985). However, every state has adopted one or both of these privileges in some form. Id. The basis for the privileges is twofold : (1) to encourage the full communication necessary for effective treatment, and (2) to prevent unnecessary disclosure of highly personal information. Id

See TEXAS HEALTH & SAFE1Y CODE CHAPTER 611 See TEX. HEALTH & SAFE1Y CODE ANN. § 611.006(a)(11 ). See also TEX. R. EVID. 510 ("If any party relies on the patient's physical, mental, or emotional condition as a part of the party's claim or defense and the communication or record is relevant to that condition.).

In this case the pleading is the August 8, 2024 Benefit Review Conference Report that defines the disputes and sets out the parties' contentions, attached as Exhibit B and Exhibit F and incorporated herein by reference. Real Party in Interest has not filed Exhibit B but has emailed a copy to Petitioner and will hand -deliver a copy to the Court contemporaneously with this filing.

RPl's 1'1 Amenclccl PTJ; General Denial; Motion to Dismiss -- Page 23 of 28 The patient-litigant exception is met in this case. The issue before the Division is whether Ms. Smith's death was a result of the compensable injury sustained on April 10, 2023. See Exhibits B, C, D, E and F. 33 Petitioner placed Ms. Smith's mental condition in controversy by asserting there is a causal link between Ms. Smith's stressful work and her death. See Exhibits B, C, D, E and F. Petitioner obtained a letter from Ms. Smith's psychiatrist, Dr. Marcellus, stating that he treated Ms. Smith for a stress-related disorder. See Exhibits B, C, D, E and F. By Petitioner's raising stress as a cause of Ms. Smith's death, Dr. Marcellus' records concerning her complaints and sources of stress became relevant to and will affect the resolution of whether she died within the course and scope of her employment.

F. Injunction is Not Proper The purpose of a temporary injunction is "to preserve the status quo of the litigation's subject matter pending a trial on the merits." Green Acquisitions, Inc. E Everlasting Green, LLC, No. 01-21-00257-CV, 2022 WL 2919936, at *3 (Tex. App.-Houston [l st Dist.] July 26, 2022, no pet.), citing Clint Indep. Sch. Dist. ,~ Marquez, 487 S.W.3d 538, 555 (Tex. 2016) (quoting Butnaru v. Ford Motor Co., 84 S.W.3d 198, 204 (Tex. 2002)). The "status quo" is the "last, actual, peaceable, non-contested status which preceded the pending controversy." Id. (quoting In re Newton, 146 S.W.3d 648, 651 (Tex 2004) (orig. proceeding)). A "temporary injunction is an extraordinary remedy and does not issue as a matter ofright." Patel v. St. Luke's Sugar Land P'ship, L.L.P, 445 S.W.3d 413,419 (Tex. App.-Houston [1 st Dist.] 2013, pet. denied) (quoting Walling v. Metcalfe, 863 S.W.2d 56, 57 (Tex. 1993) (per curiam)).

Real Party in Interest has not filed Exhibits B, C, D, E and F but has emailed a copy to Petitioner and will hand- deliver a copy to the Court contemporaneously with this filing.

RPI's 1'1 Amended PTJ; General Denial; Motion to Dismiss -- Page 24 of 28 To obtain a temporary injunction, an applicant must establish three elements: (1) a cause of action against the defendants; (2) a probable right to the relief sought; and (3) a probable, imminent, and irreparable injury in the interim . Id.

An applicant for injunctive relief must plead a valid cause of action against the respondent and request some form of permanent relief, such as a permanent injunction or damages. See Abbott v. Anti-Defamation League, 610 S.W.3d 911, 916 (Tex. 2020); Butnaru, 84 S.W.3d at 204; Walling v. Metcalfe, 863 S.W.2d 56, 57 (Tex. 1993). If the applicant pleads a cause of action that is not recognized in Texas, the trial court cannot grant an injunction. See, e.g., Valenzuela v. Aquino, 853 S.W.2d 512, 513 (Tex . 1993) (because Texas has no cause of action for negligent infliction of emotional distress, trial court could not enjoin picketers).

A person aggrieved by the improper disclosure of confidential records has a civil cause of action for damages . TEX. HEALTII & SAFETY CODE§ 611.005 (a), (c).

Under Texas Health & Safety § 611.006(11), a disclosure of mental records in an administrative proceeding where the agency has issued a subpoena for their production is a legally authorized disclosure.

Health and Safety Code Section 611. 005 does not authorize a cause of action for an authorized disclosure of confidential records in a judicial or administrative proceeding under Section 611.006. Therefore, Petitioner has no cause of action to support his request for injunctive relief.

In addition to pleading and proving a viable cause of action in seeking a restraining order or injunction, a petitioner also must plead and prove a probable right to the relief sought and a

RPI's 1' 1 Amended PTJ; General Denial; Motion to Dismiss -- Page 25 of 28 probable, imminent, and irreparable injury in the interim. Butnaru, at 204; See also Tex. R. Civ. P. 682.

A probable right to the relief sought is shown by alleging a cause of action and presenting evidence that tends to sustain it. Tanguy 1~ Laux, 259 S.W.3d 851,857 (Tex. App.-Houston [1 st Dist.] 2008, no pet.), citing Tel. Equip. Network, Inc. v. TA/Westchase Place, Ltd., 80 S.W.3d 601, 607 (Tex. App.-Houston [l st Dist.] 2002, no pet.).

Petitioner has presented no evidence that there has been or will be an improper disclosure and he cannot because this disclosure is authorized by TEX. HEALTH & SAFETY CODE § .006(a)(ll) and the Texas Rules of Evidence.

"An injury is irreparable if the injured party cannot be adequately compensated in damages or if the damages cannot be measured by any certain pecuniary standard." Butnaru, 84 S.W.3d at 204. The applicant need not establish that he will prevail at trial; rather, "the only question before the trial court is whether the applicant is entitled to preservation of the status quo of the subject matter of the suit pending trial on the merits ." Id.

It is an abuse of discretion for a trial court to grant a temporary injunction unless it is clearly established that the applicant is threatened with actual irreparable injury if the injunction is not granted. Jordan v. Landry's Seafood Rest., Inc., 89 S.W.3d 737, 742 (Tex. App.-Houston [l st Dist.] 2002, pet. denied). An injunction is not proper when the claimed injury is merely speculative; fear and apprehension of injury are not sufficient to support a temporary injunction. Id. Petitioner has not shown that his irreparable injury is imminent because the records will not be disclosed outside of the administrative hearing; the Division does not have the power to

RPl's 1'1 Amended PTJ; General Denial; Motion to Dismiss -- Page 26 of 28 enforce the subpoena without seeking district court approval; the enforcement of the subpoena is not ripe because the doctor has not refused to produce the records and even if he has neither the Division or Fort Bend has moved to compel the production via the subpoena; and Petitioner's due process rights and all the arguments he poses here are allowable in some form during the contested case hearing before the Division.

PRAYER WHEREFORE, PREMISES CONSIDERED, the Real Party in Interest/Intervenor Fort Bend County respectfully requests the Court sustain Plea to the Jurisdiction and Motion to Dismiss and General Denial and dismiss to Petitioner's "Application for Second Temporary Restraining Order and Request for Hearing on Petitioner's Application for Temporary Injunction" in its entirety, for costs of court and reasonable and necessary attorneys' fees and for such other relief as Real Party in Interest/Intervenor may show itself entitled.

Respectfully submitted, DEAN G. PAPP AS LAW FIRM, PLLC

By: Dean G. Pappas StateBarNo. 15454375 d papT.lW:.(al drs1.1 la 1.,vfi nn .con1 Mary M. Markantonis State Bar No.12986800 mmarkantonis(?v.d17,plav.,firm.com Lisa M. Teachey State Bar No. 24056416 Marilyn J. Allen State Bar No. 24025225

RPI's 1'1 Amenclccl PTJ; General Denial; Motion to Dismiss -- Page 27 of 28 8588 Katy Freeway, Suite 100 Houston, Texas 77024 713-914-6200-Telephone 713-914-6201-Facsimile ATTORNEYS FOR REAL PARTY IN INTEREST CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing instrument has been served in compliance with Rules 21 and 2l(a) of the TEXAS RULES OF CIVIL PROCEDURE on this 17h day of March 2025, as follows: Via Eserve: ,i;erv, russdl(i1.).m[;t.xlml, com Russell L. Morris Andrew W. Bruce McBryde Franco, PLLC 11000 Richmond Avenue, Suite 350 Houston, Texas 77042 Attorneys for Petitioner Via Eserve: Sherlyn. Jwrper(ii'£!ag. te.xas. gm, Ken Paxton Brent Webster Ralph Molina James Lloyd Ernest C. Garcia Sherlyn Harper Office of the Attorney General of Texas Travis Street, #1520 Houston, Texas 77002 Attorneys for Texas Department of Insurance, Division of Workers' Compensation Via Eserve: iames.brazellr~oag.texas.gov James Z. Brazell Assistant Attorney General, Administrative Law Division P.O. Box 12548, Capital Station Austin, TX 78711-2548 Attorney for Respondent, Francesca Okonkwo, Administrative Law Judge

Lisa M. Teachey

RPl's 1st Amended PTJ; General Denial; Motion to Dismiss -- Page 28 of 28 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.

Lisa Teachey on behalf of Lisa Teachey Bar No. 24056416 [email protected] Envelope ID: 98552753 Filing Code Description: Motion (No Fee) Filing Description: Real Party In Interests First Amended Plea to the Jurisdiction on Petitioner's 4th Amended Petition Status as·of 3/18/2025 10:41 AM CST Case Contacts Name BarNumber Email Timestam pSubm itted Status Suzan Cardwell cardwell@cardwellchang .com 3/17/2025 4:59 :23 PM SENT Cheryl Sowell sowell@cardwellchang .com 3/17/2025 4:59 :23 PM SENT Mary Markantonis [email protected] 3/17/2025 4:59:23 PM SENT Marilyn Allen 24025225 mallen@dgplawfirm .com 3/17/2025 4:59 :23 PM SENT Russell Morris 24099150 serv.russell@mf-txlaw .com 3/17/2025 4:59 :23 PM SENT Hope Burnett-Furlow [email protected] 3/17/2025 4:59 :23 PM SENT Lisa M.Teachey [email protected] 3/17/2025 4:59 :23 PM SENT Tanisha Doublin [email protected] 3/17/2025 4:59:23 PM SENT Catherine Hughes catherine .hughes@oag .texas.gov 3/17/2025 4:59:23 PM SENT Sherlyn Harper [email protected] 3/17/2025 4:59:23 PM SENT Dean Pappas [email protected] 3/17/2025 4:59:23 PM SENT Meridith Fischer Meridith .Fischer@oag .texas .gov 3/17/2025 4:59:23 PM SENT Jacquelyn Compton admin@dgplawfirm .com 3/17/2025 4:59:23 PM SENT James Z.Brazell [email protected] .gov 3/17/2025 4:59 :23 PM SENT Sherlyn Harper Sherlyn. Harper@oag .texas.g ov 3/17/2025 4:59 :23 PM SENT Pablo Franco [email protected] 3/17/2025 4:59 :23 PM SENT Andrew Bruce [email protected] 3/17/2025 4:59 :23 PM SENT

[P] I)E1\N G-. 1~_Al~I>1\S, PLLC .\'ITOH\'l~YS .\'I' L.\ \\" 8588 KATY FREEWAY SUITE 100 HOUSTON , TEXAS 77024 TELEPHONE: 7 1 3-91 4-6200 FA><: 713-914-6201

MARY M. MARKANTONIS [email protected]

June 12, 2025 Via E-serve Via email to [email protected] Via email to [email protected] Marilyn Burgess Harris County District Clerk Caroline, Suite 250 Houston, TX 77002 Attention: Civil/Family Post Trial - Appellate Division Re: Cause No. 2024-78536; In re Joshua Heileger, et al v. Texas Department of Insurance-Division of Workers' Compensation, et al; In the 11 th Judicial District Court of Harris County, Texas No. 15-25-00061-CV; Francisca Okonkwo, Administrative Law Judge, TDI-DWC, in her Official Capacity and Fort Bend County v. Joshua David Heiliger, Individually and on behalf of the Estate of Lauren Brittane Smith, Deceased, et al; in the 15 th Court of Appeals Dear Clerk Burgess: On behalf of Appellant Fort Bend County, we are requesting the Clerk's record in this case be supplemented. The exhibits being requested were originally hand delivered to the Court to maintain the confidentiality of the matters pertaining to the mental health records of the deceased claimant, Lauren Smith, and were noted sensitive data when electronically served on all parties. However, by some mistake none of our requested exhibits were included in the supplemental Clerk's Record. To correct this mistake, we are asking that the following, which

EXHIBIT I ;;J_ Marilyn Burgess, District Clerk June 12, 2025 Page 2 have been filed June 12, 2025 as sensitive data, with the trial court, be sent to the th Court of Appeals so that the correct supplemental record is before the Court:

SCR Exhibit A SCR Exhibit B SCR Exhibit C SCR Exhibit D SCR Exhibit E SCR Exhibit F

Please let me know the charge to prepare the supplemental record so we may pay the fee and you may have the supplemental record delivered to the Court of Appeals as soon as possible.

Should you have any questions, please contact me or Hope Furlow at our office number, 713-914-6200. Thank you for your assistance.

Sincerely, DEAN G. PAPP AS LAW FIRM, PLLC tt(a,Yhfll~ Mary M. Markantonis MMM:hf Cc: Russell L. Morris MCBRYDEFRANCOPLLC 11000 Richmond Avenue, Ste 350 Houston, TX 77042 Via E-(Ue/E-serve to [email protected] James Z. Brazell Assistant Attorney General Administrative Law Division Office of the Attorney General of Texas P.O. Box 12548, Capital Station Austin, TX 78711-2548 Marilyn Burgess, District Clerk June 12, 2025 Page 3

Via E-fUe/E-serve to [email protected] Sherlyn Harper Assistant Attorney General Administrative Law Division Office of the Attorney General of Texas Travis Street, #1520 Houston, Texas 77002 Via E-flle/E-serve to [email protected] LaVerne Chang Cardwell Chang Lovett Blvd. Houston, Texas 77006 Via E-flle/E-serve to [email protected] NO. 15-25-00061-CV

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

FRANCESCA OKONKWO, ADMINISTRATIVE LAW JUDGE, TEXAS DEPARTMENT OF INSURANCE, DIVISION OF WORKERS' COMPENSATION, IN HER OFFICIAL CAPACITY and FORT BEND COUNTY, Appellants, v. JOSHUA DAVID HEILIGER, INDIVIDUALLY, AND ON BEHALF OF THE ESTATE OF LAUREN BRITTANE SMITH, DECEASED, AND ON BEHALF OF DEATH BENEFITS BENEFICIARIES JOSHUA DAVID HEILIGER AND EMMA DESTINY HEILIGER, Appellees ON APPEAL FROM TRIAL COURT CAUSE NO. 2024-78536 n-1 JUDICIAL DISTRICT COURT OF HARRIS COUNTY, TEXAS THE HONORABLE KRISTEN B. HAWKINS, PRESIDING JUDGE

APPELLANT FORT BEND COUNTY'S AMENDED BRIEF Dean G. Pappas Lisa M. Teachey Texas Bar No. 15454375 Texas Bar No. 24056416 [email protected] [email protected] Mary M. Markantonis Marilyn G. Allen Texas Bar No. 12986800 Texas Bar No. 24025225 [email protected] [email protected] Dean G. Pappas Law Firm, PLLC 8588 Katy Freeway, Suite 100 Houston, Texas 77024 Telephone: 713-914-6200 Telecopier: 713-914-6201 COUNSEL FOR RELATOR FORT BEND COUNTY ORAL ARGUMENT REQUESTED

EXHIBIT ·~ '2 1 J IDENTITY OF PARTIES AND COUNSEL Appellant: FORT BEND COUNTY Trial and Appellate Counsel: Dean G. Pappas Texas Bar No. 15454375 [email protected] Mary M. Markantonis Texas Bar No. 12986800 [email protected] Lisa M. Teachey Texas Bar No. 24056416 lteachey@dgp lawfirm. com Marilyn J. Allen State Bar No. 24025225 [email protected] 8588 Katy Freeway, Suite 100 Houston, Texas 77024 Telephone: 713-914-6200 Telecopier: 713-914-6201

Appellant: Francesca Okonkwo, Administrative Law Judge, in her official capacity Trial and Appellate Counsel: Ken Paxton Brent Webster Ralph Molina James Lloyd Ernest C. Garcia Sherlyn Harper Texas Bar No. 24093176 [email protected] Office of the Attorney General of Texas Travis Street, Suite 1520 Houston, Texas 77002 Telephone: 713-225-8913 Telecopier: 512-320-0167 James Z. Brazell Texas Bar No. 02930100 [email protected] Assistant Attorney General, Administrative Law Division P.O. Box 12548, Capital Station Austin, Texas 78711-2548 Telephone: 512-475-3204 Appellee: Joshua Heiliger, Individually and on Behalf of the Estate of Lauren Brittane Smith, Deceased, and on Behalf of Death Benefits Beneficiaries Joshua David Heiliger and Emma Destiny Heiliger Trial and Appellate Counsel: Russell L. Morris Texas Bar No. 24099150 [email protected] 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: LaV eme Chang Texas Bar No. 00783819 [email protected] Lovett Blvd. Houston, Texas 77006 Telephone: 713-222-6025 Telecopier: 713-222-093 8

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

STATEMENT OF FACTS ................................................................... 1 SUMMARY OF ARGUMENT .............................................................. 7 ARGUMENT AND AUTHORITY ......................................................... 9 PRAYER ..................................................................................... 37 CERTIFICATE OF SERVICE AND COMPLIANCE .................................. 38 APPENDIX .................................................................................. 40

IV INDEX OF AUTHORITIES Cases Abbott v. Anti-Defamation League, 610 S.W.3d 911 (Tex. 2020) ................................................... 9 American Motorists Ins. Co. v. Fodge, 63 S.W.3d 801 (Tex. 2001) ...................................... 11, 20 Aycock v. Clark, 94 Tex. 375, 60 S.W. 665 (1901) ..................................................................... . 27 Beacon Nat. Ins. Co. v. Montemayor, 86 S.W.3d 260 (Tex. App.-Austin 2002, no pet.) .......... 23 Berrelez v. Mesquite Logistics USA, Inc., 562 S.W.3d 69 (Tex. App.-San Antonio 2018, no pet.) .. ............................. ................................................ ........ .......................... .......................... 12 Butnaru v. Ford Motor Co ., 84 S.W.3d 198 (Tex. 2002) ......................................................... 9, 10 Canadian Helicopters v. Wittig, 876 S.W.2d 304 (Tex. 1994) (orig. proceeding) ....................... 27 Chambers-Liberty Ctys. Navigation Dist. v. State, 575 S.W.3d 339 (Tex. 2019) ..................... ... 29 City of El Paso v. Heinrich, 284 S.W.3d 366 (Tex. 2009) ........................................................... 29 City of Houston v. Williams, 99 S.W.3d 709 (Tex. App.-Houston [14 th Dist.] 2003, no pet.) ... 20 Hall v. McRaven, 508 S.W.3d 232 (Tex. 2017) ........................................... ................................. 29 Henry v. Dillard Dept. Stores, Inc., 70 S.W.3d 808 (Tex. 2002) .... .. ........................................... 13 Holloway v. Fifth Court ofAppeals, 767 S.W.2d 680 (Tex. 1989) (orig. proceeding) ................ 27 Honors Acad., Inc. v. Tex. Educ. Agency, 555 S.W.3d 54 (Tex. 2018) ........................................ 29 In re Crawford & Co., 458 S.W.3d 920 (Tex. 2015) .................................................................... 11 In re Entergy Corp., 142 S.W.3d 316 (Tex. 2004) ............................................................ ix, 11, 20 In re Metro. Transit Auth., 334 S.W.3d 806 (Tex. App.-Houston [l5t Dist.] 2011, orig. proceeding) ............................................................................................................................... 13 In re Prentis, 702 S.W. 3d 762 (Tex. App.-Houston [l5t Dist.] 2024, no pet) .................... 12, 13 In re Richardson Motorsports, Ltd., 690 S.W.3d 42 (Tex. 2024) (orig. proceeding) .................. 32 In re State Bar of Tex., 113 S.W.3d 730 (Tex. 2003) (orig. proceeding) .......................... .. ......... 27 In re Tyler Asphalt & Gravel Co., Inc., 107 S.W.3d 832 (Tex. App.-Houston [14 th Dist.] 2003, orig. proceeding) ............................................................. .......................................................... 13 Jordan v. Landry's Seafood Rest., Inc., 89 S.W.3d 737 (Tex. App.-Houston [1 st Dist.] 2002, pet. denied) .................................. .................................................................................................... 10 Liberty Mut. Ins. Co. v. Adcock, 412 S.W. 3d 492 (Tex. 2013) ................................................... 13 Moers v. Harris Co. Appraisal Dist., 469 S.W.3d 655 (Tex. App.-Houston [1 st Dist.] 2015, pet. denied) ................................................... ........... ......... ............................................................... 30 Morales v. Liberty Mut. Ins. Co., 241 S. W.3d 514 (Tex. 2007) ................................................... 13 Nuchia v. Woodruff, 956 S.W.2d 612 (Tex. App.-Houston [14 th Dist.] 1997, pet. denied) ....... 23 Patel v. St. Luke's Sugar Land P'ship, L.L.P., 445 S.W.3d 413 (Tex. App.-Houston [1 st Dist.] 2013, pet. denied) ........................................................................................................................ 9 Pub. Util. Comm'n of Tex. v. City Pub. Serv. Bd. of San Antonio, 53 S.W.3d 310 (Tex. 2001) ... 13 R.K. v. Ramirez, 887 S.W.2d 836 (Tex. 1994) ....................................................................... 31, 32 Space Master Int'!, Inc. v. Porta-Kamp Mfg. Co., 794 S.W.2d 944 (Tex. Civ. App.-Houston [1 st Dist.] 1990, no writ) .................................................................................................................. 20 Strayhorn v. Raytheon £-Systems, Inc., 101 S.W.3d 558 (Tex. App.-Austin 2003, pet. denied) ...................................................................................................................................... ............ 21 Tanguy v. Laux, 259 S.W.3d 851 (Tex. App.-Houston [l5t Dist.] 2008, no pet.) ...................... 10 Tel. Equip. Network, Inc. v. TA/Westchase Place, Ltd., 80 S.W.3d 601 (Tex. App.-Houston [1 st Dist.] 2002, no pet.) ..... ............................................................. ................................................ 10

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

Vl STATEMENT REGARDING APPELLATE RECORD References to the Clerk's Record are CR[page]. References to the confidential supplemental Clerk's Record hand delivered to the Court are SCR[page]. 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].

Vll PARTY DESIGNATIONS BEFORE EACH TRIBUNAL

PARTY DWC TRIAL COURT APPEAL MANDAMUS Real Party Heiliger Claimant Petitioner Appellee in Interest Self-Insured Real Party Fort Bend Appellant No. 2 Relator Gov't Entity in Interest Real Party AU Okonkwo AU Respondent Appellant No. 1 in Interest GHPA Subpoena RealParty RealParty Respondent Target in Interest in Interest Dr. Marcellus Judge Hawkins ---- Judge ---- Respondent vm STATEMENT OF INADEQUATE RELIEF This Appeal does not provide Appellant Fort Bend County an adequate remedy because Texas Civil Practice & Remedies Code § 51.014 does not allow Appellant to argue jurisdiction when appealing the granting of injunctive relief. But in this case, the judicial appropriation of state agency authority would be a clear disruption of the "orderly processes of government" which the Texas Supreme Court has found is one of a few circumstances when a party may seek extraordinary relief despite a remedy available by appeal. See In re Entergy Corp., 142 S.W.3d 316, 320-231 (Tex. 2004) (orig.proceeding). "This disruption, coupled with the hardship imposed ... by a postponed appellate review, warrants an exception to our general proscription against using mandamus to correct incidental trial court rulings." Id. While CPRC 51.014 provides an appellate remedy on the merits of the injunction granted by the District Court, such relief would not address the subject matter jurisdiction surrounding this workers' compensation proceeding. Therefore, Appellant Fort Bend County contemporaneously filed a Petition for Writ of Mandamus challenging the District Court's subject matter jurisdiction to interfere with a discovery matter pending before the Texas Division of Workers' Compensation. Appellant respectfully requests this Court to take of the jurisdiction matter before consideration of this Appeal.

IX STATEMENT OF CASE

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

Course of Proceedings: Appellee filed a claim for death benefits at the Division of Workers' Compensation (Division) claiming his spouse died in the course and scope of her employment. (CR138) Appellant Fort Bend County disputed the claim and sought a subpoena for records relevant to Appellee' s reliance on medical opinions that stress was a factor in the death. (CRl 76) Appellee objected to the request for the subpoena. (CRl 85) In September 2024, the Division Administrative Law Judge issued a subpoena for the records. (CR201) Appellee filed an application for a temporary restraining order in the 157th District Court, seeking to bar the subpoena and prohibiting resetting the workers' compensation administrative matter. (CR20) Appellant appeared as Real Party in Interest seeking to modify the TRO to allow the workers' compensation contested case hearing to be reset until the subpoena issue could be resolved. (CR25) The TRO was modified as such. (CR48) The TRO matter was transferred to the th District Court where a hearing on a temporary injunction began December 5, 2025. The hearing was continued to allow the parties to try to reach an agreement. (3RR29:24 - 31: 19) No agreement was reached. Appellant filed a new request at the Division on December 27, 2024, for a Deposition Subpoena of the records. (CR341) Appellee objected to the request. (CR352) On January 24, 2025, Appellant filed with the Division an amended motion for the Deposition Subpoena. (CR387) Appellee objected to the motion. On January 27, 2025 the Division Administrative Law Judge issued a Deposition Subpoena of the records. (CR401) Appellant withdrew the September subpoena (Appendix E) and filed notice that it would serve the January Deposition Subpoena. Appellee did not file a motion to quash the Deposition Subpoena that issued in January, nor did he file an objection to the issued subpoena, nor did he seek a protective order. Appellee sought a new temporary restraining order to prevent compliance with the January Deposition Subpoena. (CR325) Appellant appeared as Real Party in Interest and filed a plea to the jurisdiction because the Texas Workers' Compensation Act and the Texas X Government Code provide the exclusive authority to issue and enforce subpoenas at workers' compensation contested case hearings. (CR419) The District Court granted the TRO without taking up Appellant's plea to the jurisdiction and set the matter for a hearing on a temporary injunction on March 21, 2025. (CR443) At the March hearing, Appellant again appeared as Real Party in Interest to challenge jurisdiction on Appellee's pleadings and second application for injunction. (CR460) The District Court denied Appellant's plea to the jurisdiction, denied the Division's plea to the jurisdiction, granted a temporary injunction and set a hearing on the merits of Appellee's pleadings. (CR606, 611) Trial Court Disposition: By orders dated April 2, 2025, the trial court denied Appellant's plea to the jurisdiction and motion to dismiss, denied the Division's plea to the jurisdiction, granted the temporary injunction and set a trial on the merits in December 2025. (CR606, 611) Appellate Posture: The Division has appealed the denial of its plea to the jurisdiction. The Division is required to file in the 15 th Court of Appeals. This Court accepted Appellant's request to consolidate its appeal in this matter pursuant to Rule 15.2 of the Texas Rules of Judicial Administration; Appellant contemporaneously has filed a petition for Writ of Mandamus in this Court because its request for extraordinary relief stems from an order arising from the same nucleus of operative facts, the same hearing and essentially the same rulings in the District Court as the plea to the jurisdiction being appealed by Administrative Law Judge Okonkwo.

XI STATEMENT REGARDING ORAL ARGUMENT Appellant Fort Bend County requests oral argument.

Xll STATEMENT OF ISSUE PRESENTED The District Court erred in denying Appellant Fort Bend County's Motion to Dismiss Appellee Heiliger's Petition for Temporary Injunction for the following . reasons: (4) No viable cause of action exists a. Appellee has not shown a cause of action can be sustained as a declaratory judgment action; b. Appellee has no statutory right to judicial review because he has not exhausted his administrative remedies and been aggrieved of a final Appeals Panel decision at the Division of Workers' Compensation; c. Appellee has not established the right to mandamus relief because the Division has not acted beyond the scope of its lawful authority and Appellee has several adequate remedies at law; and d. Appellee has not shown an ultra vires claim lies because the Division has not exceeded its authority in conducting discovery; (5) No probable right to the relief sought exists because Ms. Smith's mental health records are protected by a qualified privilege that can be pierced in judicial proceedings when a party makes the condition a part of its claim or defense; and ( 6) There is no probable, imminent, and irreparable injury in the interim because the Texas Workers' Compensation Act specifically prohibits an ALJ from enforcing a discovery subpoena unless the ALJ or the party seeking the subpoena invokes Texas Government Code § 2001.201 to seek a District Court determination of good cause.

xm STATEMENT OF THE FACTS Appellant Fort Bend County 1 is appealing the granting of a temporary injunction by a Harris County District Court that prohibits the discovery of records in an administrative dispute resolution proceeding to determine death benefits pending before the Texas Department of Insurance - Division of Workers' Compensation ("Division"). (CR et passim) A Contested Case Hearing (CCH) is set for August 7, 2025, at the Division Houston East Field Office. 2 No final order in this matter has been issued by the Division.

The Division - the agency granted the exclusive right, in the first instance, to determine workers' compensation issues -- must decide whether Appellee Joshua Heiliger, individually as the surviving spouse of Lauren Brittane Smith and on behalf of their adopted child Emma Destiney Heiliger, is entitled to workers' compensation death benefits. (SCR 10) Lauren Smith was a paramedic for Fort Bend County EMS. (SCR 19) 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 10) Mr. Heiliger filed a death benefit claim on April 2, 2024, with the Division of Workers' Compensation.

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

Fort Bend County EMS (Fort Bend County) is disputing compensability. (SCR 19) 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. (CRl 67) Mr. Heiliger objected to the issuance of the subpoena. (CR185) Those objections were overruled and on September 19, 2024, Division Administrative Law Judge Francesca Okonkwo, who presides over this workers' compensation dispute, ordered a subpoena issue for Ms. Smith's mental health records spanning January 1, 2020 through April 10, 2023. (CR201) On November 12, 2024, Mr. Heiliger, wholly disregarding, the statutory administrative process and unbeknownst to Fort Bend County, sought a temporary restraining order in a district court to bar compliance with the subpoena. (CR20) The Contested Case Hearing at this juncture was set for November 15, 2024. (CR26 of 25-33) A hearing on the TRO took place November 13, 2024, with no notice to Fort Bend County, although Mr. Heiliger was able to notify the Texas Department of Insurance, who objected at the hearing. (CR20-24) Despite the objection, the

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 157 th District Court which granted a modification to the TRO allowing the Division to reset the CCH until the TRO could be resolved. (CR25-30, 48-50) On December 5, 2024, the 11 th District Court began a hearing to determine whether compliance with Fort Bend County's subpoena should be temporarily enjoined. (3RR1: 1-32: 18) Fort Bend County as Real Party in Interest re-asserted, among other things, its Plea to the Jurisdiction. (CR83-l 08) During a break in that hearing, Mr. Heiliger and Fort Bend County entered into a Rule 11 Agreement that was filed with the District Court, and the District Court paused the temporary injunction proceeding. (3RR29:24 - 31: 16) Under the Rule 11 Agreement, Fort Bend County submitted a DWQ to Dr. John Marcellus on December 10, 2024. Mr. Heiliger responded on December 16, 2024, objecting to almost half of the questions. (CR423 of 419-442 and 4RR15:l 7 - 16:8) Fort Bend County attempted on numerous occasions to confer with Mr. Heiliger's counsel via telephone to no avail. (CR423 of 419-442 and 4RR15:17 -

16:8) The Rule 11 Agreement contained a self-destruct clause setting a December 20, 2024, deadline for Fort Bend County and Mr. Heiliger to reach an agreement on the questions to be answered via the DWQ. (CR423 of 419-442 and 4RR15:17 - 16:8) No agreement was reached by that date, so Fort Bend County notified Mr. Heiliger that the self-destruction provisions of the Rule 11 had become effective and that Fort Bend County planned to pursue its legal remedies. (CR423 of 419-442 and 4RR15:17 - 16:8) On December 27, 2024, Fort Bend County filed a motion at the Division seeking the procedurally correct Deposition Subpoena of Dr. Marcellus pursuant to the Subpoena Rule for Contested Case Hearings before the Division of Workers' Compensation. 3 (CR295-310) Mr. Heiliger objected on December 30, 2024, arguing solely that the ALJ should not issue this subpoena because a TRO was pending on the September subpoena. (CR321-324) On January 24, 2025, Fort Bend County submitted an amended request for a Deposition Subpoena, effectively replacing the December 27, 2024 motion. (CR387-399) While Mr. Heiliger indicated he was opposed to the amended motion for the new Deposition Subpoena in a conference with Fort Bend County' s counsel,

It was discovered during the District Court hearings that the September subpoena was procedurally defective. The September subpoena eventually was withdrawn and AU Okonkwo vacated the subpoena by Order issued February 18, 2025. See Appendix E, which is a sworn copy from the Appellant's files of owe Docket No. 24229142-01-CC-HE Mr. Heiliger filed no objection. Administrative Law Judge Okonkwo granted Fort Bend County's Deposition Subpoena of Dr. Marcellus on January 27, 2025. (5RR2) Fort Bend County withdrew the original Subpoena dated September 19, 2024, and noticed Mr. Heiliger it would now serve the January 27, 2025, Deposition Subpoena. (4RR14: 19-23; 15 :5-14; 22: 15-23: 12) The Deposition Subpoena was served on Dr. Marcellus on February 10, 2025, commanding he appear on February 24, 2025, at 10 a.m. to permit inspection and copying of the records. (5RR2) Mr. Heiliger filed no objection at the Division; he filed no motion to quash; he filed no motion seeking protection from the Deposition Subpoena. Mr. Heiliger filed nothing at the Division, no challenge whatsoever to the January Deposition Subpoena. But on February 10, 2025, Mr. Heiliger filed a second application for a temporary restraining order along with a request for a hearing on Mr. Heiliger's pending temporary injunction on the now moot September subpoena. Fort Bend County re-urged its Plea to the Jurisdiction and set it for hearing. (CR325 - 414) At a hearing on February 18, 2025, the District Court refused to take up Fort Bend County's Plea to the Jurisdiction but took up Mr. Heiliger's application for TRO on the January Deposition Subpoena. (4RR41:3-5, 8-17) The District Court issued a temporary restraining order preventing compliance with the January Deposition Subpoena and set a March 21, 2025 hearing to take up, among other things, Fort Bend County's Plea to the Jurisdiction and Mr. Heiliger's Second Application for Temporary Injunction. (Id., CR443-446) At the March hearing, the District Court took the parties' arguments under advisement and subsequently entered orders April 2, 2025 denying Fort Bend County's Plea to the Jurisdiction, denying in part and granting in part ALJ Okonkwo's Plea to the Jurisdiction4, granting Mr. Heiliger's Temporary Injunction and setting a hearing on the merits of the matter for December 1, 2025. (IRR et passim and CR606-613) Fort Bend County now seeks to dispose of the temporary injunction and vacate the order setting trial on the merits and requests the Court to vacate the order denying Fort Bend County's Motion to Dismiss because Appellee has not shown any right to relief. The Texas Labor Code specifically dictates the legal process for conducting discovery during workers' compensation administrative disputes and provides this Appellee with relief as mandated by the Texas Legislature.

AU Okonkwo has an appeal pending before this Court challenging the district court's jurisdiction as well in this matter.

SUMMARY OF THE ARGUMENT This is an appeal of the granting of temporary injunction and an order setting a trial on the merits regarding a discovery issue pending before the Texas Division of Workers' Compensation ("Division").

Appellant Fort Bend County contemporaneously has filed a Petition for Writ ofMandamus challenging the subject matter jurisdiction of the District Court when an agency has exclusive jurisdiction, such as here in this case. Appellant Fort Bend County respectfully requests this Court to take up the Petition for Writ of Mandamus prior to the consideration of this appeal.

Appellant Fort Bend County files the appeal pursuant to Texas Civil Practice and Remedies Code§ 51.014 because Appellee Joshua Heiliger has not produced any competent evidence to support a probable right to relief nor a probable injury.

That is because the Texas Legislature has granted exclusive jurisdiction to the Division to decide workers' compensation disputes in the first instance, which impliedly requires that the agency has whatever powers crucial to fulfill its express function. This power necessarily and statutorily includes the power to promulgate discovery. The Texas Workers' Compensation Act specifically provides the process to grant and to enforce discovery subpoenas during a workers' compensation dispute.

The statutory scheme for enforcing a subpoena at a workers' compensation contested case hearing mandates that the administrative law judge ("ALJ") or the party requesting the subpoena must seek a district court's perm1ss10n to enforce a subpoena. The District Court erred by allowing the claimant in the workers' compensation dispute to forego the correct legal process at the Division that would trigger the enforcement process. A district court cannot interfere with an administrative discovery simply because the person subject to an administrative discovery subpoena or any other person affected by the subpoena - such as Mr. Heiliger objects to the subpoena. A challenge to such a subpoena must be brought at the Division first. Once that challenge is made, the Act requires the ALJ or the party requesting the subpoena to proceed under Government Code § 2001.201 to then seek court enforcement of the subpoena. This failsafe, which ensures the ALJ does not abuse her discretion, has not occurred in this matter. Accordingly, the district court erred in granting injunctive relief because Appellee has not shown 1) a cause of action against the Division; (2) a probable right to the relief sought; and (3) a probable, imminent, and irreparable injury in the interim.

ARGUMENT AND AUTHORITY A temporary injunction is "an extraordinary remedy and does not issue as a matter of right." Patel v. St. Luke's Sugar Land P'ship, L.L.P., 445 S.W.3d 413,419 (Tex. App.-Houston [1 st Dist.] 2013, pet. denied) (quoting Wallingv. Metcalfe, 863 S.W.2d 56, 57 (Tex. 1993) (per curiam)).

To obtain a temporary injunction, an applicant must establish three elements: ( 1) a cause of action against the defendants; (2) a probable right to the relief sought; and (3) a probable, imminent, and irreparable injury in the interim. Id. See also Butnaru v. Ford Motor Co., 84 S.W.3d 198, 204 (Tex. 2002) An applicant for injunctive relief must plead a valid cause of action against the respondent and request some form of permanent relief, such as a permanent injunction or damages. SeeAbbottv. Anti-Defamation League, 610 S.W.3d 911,916 (Tex. 2020); Walling at 57. If the applicant pleads a cause of action that is not recognized in Texas, the trial court cannot grant an injunction. See, e.g., Valenzuela v. Aquino, 853 S.W.2d 512, 513 (Tex. 1993) (because Texas has no cause of action for negligent infliction of emotional distress, trial court could not enjoin picketers).

In addition to pleading and proving a viable cause of action in seeking a restraining order or injunction, a petitioner also must plead and prove a probable right to the relief sought and a probable, imminent, and irreparable injury in the interim. Patel, supra; See also Tex. R. Civ. P. 682.

A probable right to the relief sought is shown by alleging a cause of action and presenting evidence that tends to sustain it. Tanguy v. Laux, 259 S.W.3d 851, 857 (Tex. App.-Houston [l st Dist.] 2008, no pet.), citing Tel. Equip. Network, Inc. v. TA/ Westchase Place, Ltd., 80 S.W.3d 601, 607 (Tex. App.-Houston [l st Dist.] 2002, no pet.).

"An injury 1s irreparable if the injured party cannot be adequately compensated in damages or if the damages cannot be measured by any certain pecuniary standard." Butnaru, 84 S.W.3d at 204. The applicant need not establish that he will prevail at trial; rather, "the only question before the trial court is whether the applicant is entitled to preservation of the status quo of the subject matter of the suit pending trial on the merits." Id. It is an abuse of discretion for a trial court to grant a temporary injunction unless it is clearly established that the applicant is threatened with actual irreparable injury if the injunction is not granted. Jordan v. Landry's Seafood Rest., Inc., 89 S.W.3d 737, 742 (Tex. App.-Houston [l st Dist.] 2002, pet. denied). An injunction is not proper when the claimed injury is merely speculative; fear and apprehension of injury are not sufficient to support a temporary injunction. Id. The Division of Workers' Compensation has exclusive jurisdiction over workers' compensation claims and the Texas Workers' Compensation Act provides exclusive remedies for these claims. In re Crawford & Co., 458 S.W.3d 920, 923 (Tex. 2015). The Act designates the Department of Insurance as the administrative agency responsible "[for overseeing] the workers' compensation system of this state" and establishes the Division of Workers' Compensation within the Department to "administer and operate" that system. Id., citing Tex. Lab. Code § 402.001. The Crawford Court found that it is the Division's duty to "(l) regulate and administer the business of workers' compensation in this state; and (2) ensure that [the Act] and other laws regarding workers' compensation are executed." Id., citing Tex. Lab.

Code § 402.00114. The Act, as substantially revised in 1989, prescribes, among other things, the detailed "time-compressed" processes for carriers to handle claims and for dispute resolution. Id. Under the Act, the Legislature has vested the Texas Department of Insurance - Division of Workers' Compensation ("Division") with authority to make the first determination whether a claimant is entitled to workers' compensation benefits. See American Motorists Ins. Co. v. Fodge, 63 S.W.3d 801 (Tex. 2001). See also TEX. LABOR CODE§ 408.001. This exclusive jurisdiction provision requires that a claimant or employer in a workers' compensation case must exhaust all administrative remedies before seeking judicial review of the agency's action. See In re Entergy Corp., 142 S.W.3d 316, 321-322 (Tex. 2004). Requiring a party to exhaust his administrative remedies prior to filing suit does not deprive him of any legal rights. In re Prentis, 702 S.W. 3d 762, 772 (Tex. App.-Houston [l st 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. At a contested case hearing the administrative law judge shall "(1) swear witnesses; (2) receive testimony; (3) allow examination and cross-examination of witnesses; (4) accept documents and other tangible evidence; and (5) allow the presentation of evidence by affidavit." See Tex. Lab. Code§ 41 0.l 63(a). The statute governing the powers and duties of the ALJ at a contested case hearing further requires that the ALJ "shall ensure the preservation of the rights of the parties and the full development offacts required for the determinations to be made." See Tex. Lab.

Code§ 410.163 (b) (emphasis added).

The First Court of Appeals, which sits in Harris County where the District Court is located, found relevant that the Act vests the Division with the sole authority to determine whether an employee suffered a "compensable injury" entitling him to workers' compensation benefits. Prentis, at 769, citing Henry v. Dillard Dept.

Stores, Inc., 70 S.W.3d 808, 809 (Tex. 2002); also citing In re Metro. Transit Auth., 334 S.W.3d 806, 810-11 (Tex. App.-Houston [Pt Dist.] 2011, orig. proceeding). "A 'compensable injury' is one that 'arises out of and in the course and scope of employment for which compensation is payable' under the Act." Id., citing TEX. LAB. CODE§ 401.011(10) and Morales v. Liberty Mut. Ins. Co., 241 S.W.3d 514, 518 (Tex. 2007). "Because course and scope of employment is an element of compensability, the Division's 'exclusive jurisdiction to determine compensability [thus] necessarily encompasses [the] exclusive jurisdiction to determine whether an injury ... occurred in the course and scope of employment."' Id., citing In re Tyler Asphalt & Gravel Co., Inc., 107 S.W.3d 832, 839 (Tex. App.-Houston [14 th Dist.] 2003, orig. proceeding).

When the Legislature "expressly confers a power on an agency, it also impliedly intends that the agency have whatever powers are reasonably necessary to fulfill its express functions or duties ... "See Liberty Mut. Ins. Co. v. Adcock, 412 S.W. 3d 492,494 (Tex. 2013), quoting Pub. Util. Comm'n of Tex. v. City Pub. Serv. Ed. 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.

The statutory grant of authority to the Division also includes the power to adopt rules to govern procedures for these contested case hearings. See Tex. Lab. Code § 410.157 ("The commissioner shall adopt rules governing procedures under which contested case hearings are conducted."). The Division Rules are embodied in the Texas Administrative Code and include specific rules for conducting contested case hearings, obtaining evidence at contested case hearings and detailed procedures for discovery at contested case hearings. See 28 Tex. Admin. Code§§ 141 and 142.

For ease of reference of the many statutes and rules governing workers' compensation contested case hearings and the procedures for discovery at such hearings, the following list is provided: o Texas Labor Code§ 410.003 - Restricts the application of Chapter 2001 of the Government Code (Administrative Procedure Act) in workers' compensation administrative proceedings unless specifically provided in Chapter 410 of the Act; o Texas Labor Code § 410.157 - Authorizes the promulgation of rules for conducting contested case hearings at the Division o Texas Labor Code § 410.158 - Authorizes limited discovery during the dispute resolution process at the Division; o Texas Labor Code§ 410.162 -Allows, for good cause shown, that a party may obtain permission from the administrative law judge to conduct additional discovery as necessary; o Texas Labor Code§ 410.165-Authorizes the administrative law judge as the sole judge of the relevance and materiality of the evidence offered and of the weight and credibility to be given to the evidence. o 28 Tex. Admin. Code § 141.4 -- Pertinent information at a benefit review conference is defined as all information relevant to the resolution of the disputed issue or issues to be addressed at the benefit review conference, including but not limited to, among other things, the injured employee's medical records. o 28 Tex. Ad min. Code§ 142.2 -- Authorizes the authority of the Division ALJ to, among other things, issue a subpoena on its own motion or at the request of a party if the ALJ determines the party has a good cause, rule on admissibility, and determine the weight and credibility of evidence. o 28 Tex. Admin. Code§ 142.12 -Allows the Division ALJ to issue a subpoena on its own motion or at the request of a party upon a determination of relevancy to the disputed issue; o 28 Tex. Admin. Code§ 142.13 -Authorizes the Division ALJ to grant a party permission to conduct discovery beyond that described in Texas Labor Code§ 410.158 upon a showing of good cause at a hearing held for this purpose; and o 28 Tex. Admin. Code § 142.1 - Mandates that the only section of the Government Code (Administrative Procedure Act) that applies to the contested cases hearings is § 2001.201 relating to the enforcement of subpoenas.

The Act specifically sets out how subpoenas are to issue and how they are to be enforced in workers' compensation contested case hearings. Specifically, the Act prohibits an ALJ from enforcing a subpoena unless the ALJ or the party seeking the subpoena invokes Texas Government Code § 2001.201. That section provides as follows:

(a) If a person fails to comply with a subpoena or commission issued under this chapter, the state agency issuing the subpoena or commission, acting through the attorney general, or the party requesting the subpoena or commission may bring suit to enforce the subpoena or commission in a district court in Travis County or in the county in which a hearing conducted by the agency may be held.

See Tex. Gov't. Code§ 2001.201.

Furthermore, Texas jurisprudence expressly recognizes that mental health records, like the ones at issue here, are obtainable in controversies where the mental condition is at issue. Under Texas Rule of Evidence 510( d)(5) the privilege of confidentiality for mental health records does not apply if any party relies on the patient's physical, mental, or emotional condition as a part of the party's claim or defense and the communication or record is relevant to that condition. The Texas Health and Safety Code provides a qualified privilege for such records but has specifically carved out exceptions. See Tex. Health & Safety Code § 611. In the section of the Mental Health Records statute entitled "Authorized Disclosure of Confidential Information in a Judicial or Administrative Proceeding," the Texas Legislature expressly authorized the disclosure of mental health records in "a judicial or administrative proceeding where the court or agency has issued an order or subpoena." See TEX. HEALTH & SAFETY CODE§ 611.006(a)(l l).

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

(7) No viable cause of action exists a. Appellee has not shown a cause of action can be sustained as a declaratory judgment action because there is a pending matter between the same parties in which the issues can be adjudicated. That pending matter is the administrative dispute resolution process pending now before the Division of Workers' Compensation. b. Appellee has no statutory right to judicial review because he has not exhausted his administrative remedies and been aggrieved of a final Appeals Panel decision at the Division of Workers' Compensation. Mr. Heiliger has no inherent right to judicial review because the confidentiality of mental health records is not an absolute privilege, but rather a qualified privilege because Texas Law specifically authorizes the disclosure of confidential mental health records in a judicial or administrative proceeding where the court or agency has issued an order or subpoena. c. Appellee has not established the right to mandamus relief for the following reasons: 1. The Division has not acted beyond the scope of its lawful authority because the Division Administrative Law Judge is the sole judge of the relevance and materiality of the evidence offered and of the weight and credibility to be given to the evidence, 5 and the ALJ may allow parties to conduct discovery as necessary. 6 Furthermore, Texas Law contemplates that mental See TEX. LABOR CODE ANN. § 410.165 See TEX. LABOR CODE ANN. § 410.162 health records can be subjected to the subpoena power of a judicial or administrative proceeding. 7 The ALJ has not clearly abused her discretion in ordering the production of these records when Appellee has put Ms. Smith's mental condition at issue by seeking opinions that Ms. Smith suffered from stress that may have contributed to her death and her psychiatrist Dr. Marcellus treated Ms. Smith for Post-Traumatic Stress Disorder8 ; and 11. Appellee has several adequate remedies at law. The subpoena cannot be enforced unless and until the ALJ or Fort Bend County seeks to compel it through a District Court hearing. The subpoena at issue requires any records obtained by Fort Bend County to be held confidentially. 9 The Texas Labor Code requires information relating to a workers' compensation claim to remain confidential when released to any person, except when used in court for the purposes of an appeal (Tex. Lab. Code § 402.083(a) and 402.086(a)). Appellee has at least four other remedies: an Appeals Panel review; judicial review in district court; appellate review in the courts of appeal; final review in the Texas Supreme Court. d. Appellee has not shown an ultra vires claim. The Division has not exceeded its authority in conducting discovery, ruling on discovery and ordering the disclosure of records authorized by statute to be disclosed via a subpoena. Ms. Smith's mental health records are not being disclosed publicly. The records are being disclosed as an authorized disclosure contemplated by the Texas Health and Safety Code. 10 (8)No probable right to the relief sought exists. Ms. Smith's mental health records are protected by the privilege of confidentiality, however, it is not an absolute privilege. It is a qualified privilege that can be pierced in judicial proceedings when a party makes the condition a part of its claim or defense. 11 The privilege is severely limited whenever the mental health condition is See TEX. HEALTH & SAFETY CODE ANN.§ 611.006(a)(11) See SCR 8, 10, 19, 24, 28, and 30.

See 5RR2 See TEX. HEALTH & SAFETY CODE ANN.§ 611.006(a)(11) See TEX. HEALTH &SAFETY CODE ANN.§ 611.006(a)(11 ). See also TEX. R, EVID. Rule 510 ("If any party relies on the patient's physical, mental, or emotional condition as a part of the party's claim or defense and the communication or record is relevant to that condition.).

relevant to any party's claim or defense. Whether the mental health condition is part of a party's claim or defense is determined from the face of the pleadings and then, if necessary, from the allegedly privileged records.

(9) There is no probable, imminent, and irreparable injury in the interim because the Texas Workers' Compensation Act specifically prohibits an ALJ from enforcing a subpoena unless the ALJ or the party seeking the subpoena invokes Texas Government Code § 2001.201 Mr. Heiliger has not shown that his irreparable injury is imminent because the records will not be disclosed outside of the administrative hearing; the Division does not have the power to enforce the subpoena without seeking district court approval; the enforcement of the Deposition Subpoena is not ripe because the doctor has not refused to produce the records and even if he has neither the Division or Fort Bend has moved to compel the production via the Deposition Subpoena; and Mr. Heiliger's due process rights and all the arguments he poses here are allowable in some form during the contested case hearing before the Division.

1. NO VIABLE CAUSE OF ACTION EXISTS A. Declaratory Judgment Action is Not Proper 1. A Pending Matter Exists A declaratory action is not proper in this case because there is a pending matter between the same parties in which the issues can be adjudicated. That pending matter is the administrative dispute resolution process pending now before the Division of Workers' Compensation. As a general rule, "an action for declaratory judgment will not be entertained if there is pending, at the time it is filed, another action or proceeding between the same parties and in which may be adjudicated the issues involved in the declaratory action. See Texas Liquor Control Board v. Canyon Creek Land Corp., 456 S.W.2d 891, 895 (Tex. 1970); Space Master Int'l, Inc. v. Porta-Kamp Mfg. Co., 794 S.W.2d 944, 946-47 (Tex. Civ. App.-Houston [1 st Dist.] 1990, no writ).

Under the Texas Workers' Compensation Act, the Texas Legislature has vested the Texas Department of Insurance - Division of Workers' Compensation ("Division") with authority to make the first determination whether a claimant is entitled to workers' compensation benefits. See American Motorists Ins. Co. v. Fodge, 63 S.W.3d 801 (Tex. 2001). See also TEX. LABOR CODE § 408.001. This exclusive jurisdiction provision requires that a claimant or employer in a workers' compensation case must exhaust all administrative remedies before seeking judicial review of the agency's action. See In re Entergy Corp., 142 S.W.3d 316, 321- (Tex. 2004).

A suit for declaratory judgment does not allow a district court to review an agency action that is not otherwise reviewable. See City of Houston v. Williams, 99 S.W.3d 709, 712-13 (Tex. App.-Houston [14 th Dist.] 2003, no pet.). When a statute provides an avenue for attacking an agency order, a declaratory judgment action will not lie. See Strayhorn v. Raytheon £-Systems, Inc., 101 S.W.3d 558, 572 (Tex. App.-Austin 2003, pet. denied).

Under the Act, the Administrative Law Judge is the sole judge of the relevance and materiality of the evidence offered and of the weight and credibility to be given to the evidence. See TEX. LABOR CODE Ann.§ 410.165. The Division may issue a subpoena on its own motion or at the request of a party if the ALJ determines the party has good cause. See 28 TEX. ADMIN. CODE§ 142.12.

The Adopted Rules governing administrative proceedings provide a mechanism to challenge a subpoena issued during an administrative proceeding. For the same reasons that generally a mandamus is not proper if there is an available remedy, a declaratory judgment action action is not proper when there is another proceeding that affords a remedy. The Act provides that the Division ALJ may conduct discovery and issue subpoenas and seek enforcement of its subpoenas. See TEX. LABOR CODE§ 410.158 and§ 410.162; 28 TEX. ADMIN. CODE§ 142.12 and§ 142.13. See 28 TEX. ADMIN. CODE§ 142.2. See TEX. Gov'T CODE§ 2001.201.

While there is no specific grant of authority to challenge a subpoena issued by a Division ALJ, there is a remedy available for the target of a Division subpoena: the target can move for protection at the administrative hearing which would force the Division or the party seeking the subpoena to seek enforcement of the subpoena under Government Code § 2001.201.

If the Division or Fort Bend sought an enforcement action under Texas Government Code § 2001.201, Mr. Heiliger would have all the due process rights and arguments he is trying to make here by hop, skipping and jumping over the required process codified in the Texas Workers' Compensation Act. At the § 2001.201 enforcement proceeding, a party such as Appellee or Dr. Marcellus could bring all the same arguments Appellee is improperly requesting as injunctive relief.

The only difference would be that in a § 2001.201 proceeding the District Court would not be snatching the reins from the rightful rider.

Or Mr. Heiliger could claim his privilege at the workers' compensation contested case hearing and if neither the Division nor Fort Bend seeks enforcement, the privilege would remain unpierced.

Either way there is already a proceeding in place that affords Mr. Heiliger exactly what he seeks here. Therefore, a declaratory judgment action is not proper.

2. No Statutory Authority Has Been Exceeded A declaratory judgment is not proper in this matter because no statutory authority has been exceeded.

The power of courts to issue declaratory judgments under the UDJA in the face of administrative proceedings is limited. Texas Courts have held that when a statute provides an avenue for attacking an agency order, a declaratory judgment action will not lie to provide redundant remedies. See Beacon Nat. Ins. Co. v. Montemayor, 86 S.W.3d 260, 267 (Tex. App.-Austin 2002, no pet.), citing Young Chevrolet, Inc. v. Texas Motor Vehicle Bd., 974 S.W.2d 906, 911 (Tex.App.-Austin 1998, pet. denied). "An administrative body is entitled to exercise its statutory duties and functions without interference from the courts, unless it exceeds that statutory authority. Id., citing Westheimer lndep. Sch. Dist. v. Brockette, 567 S.W.2d 780, 785 (Tex. 1978). A party may employ a declaratory judgment action to intervene in administrative proceedings only when an agency is exercising authority beyond its statutorily conferred powers. See Nuchia v. Woodruff, 956 S.W.2d 612, 615-16 (Tex. App.-Houston [14 th Dist.] 1997, pet. denied).

The Division is acting completely within its statutory authority. The Texas Labor Code provides a discovery process to parties in a dispute. TEX. LAB. CODE§§ 410.158 (a); 410.162. The Division has promulgated rules to conduct discovery. 28 TEX. ADMIN. CODE§§ 142.2, 142.12, 142.13. A Division ALJ has authority to grant additional discovery other than deposition by written questions, oral depositions and interrogatories. TEX. LAB. CODE § 410.162. The Adopted Rules authorize the Division ALJ to issue subpoenas. 28 TEX. ADMIN. CODE§ 142.2(1).

The Act even built in a process to prevent a Division ALJ from exceeding her authority when it comes to subpoenas by requiring an ALJ to seek district court perm1ss10n under Texas Government Code 2001.201, supra, to enforce its subpoenas.

So, again, all of Mr. Heiliger' s rights are intact and he has a specifically carved out path to address in a district court -- via proper legal process -- all of the issues he raises here if and when the Division or Fort Bend County tries to enforce the Deposition Subpoena.

B. No Inherent Nor Statutory Right to Judicial Review Mr. Heiliger has no statutory right to judicial review because he has not exhausted his administrative remedies and been aggrieved of a final Appeals Panel decision at the Division of Workers' Compensation.

Fort Bend County affirmatively asserts that any common law remedies when Ms. Smith acquiesced to workers' compensation coverage. Under Texas Labor Code§ 406.034(b), Ms. Smith could have retained the common-law right of action to recover damages for personal injuries or death. Instead she chose to accept the remedies under the Texas Workers' Compensation Act with all its restrictions, requirements and procedures. Just because Mr. Heiliger doesn't like the rules of the procedure Ms. Smith chose, he cannot try to twist his claim into a common-law right of action to benefit from a different set of rules.

Mr. Heiliger has no inherent right to judicial review because the confidentiality of mental health records is not an absolute privilege, but rather a qualified privilege because Texas Law specifically authorizes the disclosure of confidential mental health records in a judicial or administrative proceeding where the court or agency has issued an order or subpoena.

Texas Health & Safety Code § 611 is the authority that creates the privilege of confidentiality for mental health records. Section 611.002 prohibits the disclosure of these confidential communications between a patient and a professional, as well as the records of the identity, diagnosis, evaluation, or treatment of a patient that are created or maintained by a professional. Section 611.003(a)(2) in conjunction with Section 611.004 (a)(5) allow Mr. Heiliger to claim this privilege as the representative of Ms. Smith. Section 611.005 prescribes the remedy for an improper disclosure or failure to disclose confidential mental health records.

But most importantly, Section 611.006(a) authorizes 11 instances in which the disclosure of confidential information is authorized. All of the authorized disclosures enumerated in this section have to do with a judicial or administrative proceeding. Mr. Heiliger argued before the District Court Texas Health & Safety Code § 611.004 as the authority for exceptions to disclosure, but those exceptions apply only ifthere is no judicial or administrative proceeding. The Texas Legislature specifically carved out separate exceptions in § 611.006 that authorize disclosure in judicial and administrative proceedings. Mr. Heiliger has wholly ignored the authority that applies in this matter.

Section 611. 006( a)( 11) specifically authorizes the disclosure of confidential mental health information in a judicial or administrative proceeding where the court or agency has issued an order or subpoena. This statute explicitly provides an exception to the privilege of confidentiality of mental health records in the exact situation.

Additionally the Texas Rules of Evidence provide another exception to the privilege of confidentiality of mental health records. Under Rule 510(d)(5), the privilege does not apply "[i]f any party relies on the patient's physical, mental, or emotional condition as a part of the party's claim or defense and the communication or record is relevant to that condition." The exception to the qualified privilege and the rules of evidence provide for the discovery of these mental health records because Mr. Heiliger has put Ms. Smith's mental condition at issue. (SCR 10, 19, 24, 28 and 30)

C. No Right to Mandamus Relief for Appellee The Texas Supreme Court has established a two-prong test that courts apply to petitions for writ of mandamus. Walker v. Packer, 827 S.W.2d 833 (Tex. 1992) (orig. proceeding). Under this standard, the trial court must have abused its discretion, and as a result, the party seeking relief must have been left without an adequate remedy on appeal. Id at 839-40.

To determine a clear abuse of discretion, a reviewing court may not substitute its judgment for that of the administrative tribunal to resolve matters committed to that tribunal's discretion of factual issues. Id at 839. The party seeking relief must establish there is only one result that the Division could have reasonably reached. Id. at 840. Because reasonable minds differ, the fact that one court would have decided the case differently will not give rise to an abuse of discretion "unless it is shown to be arbitrary and unreasonable." Id. Mandamus relief will not issue when "the law has provided another plain, adequate, and complete remedy." Aycock v. Clark, 94 Tex. 375, 60 S.W. 665, 666 (1901); see also Canadian Helicopters v. Wittig, 876 S.W.2d 304, 305-06 (Tex. 1994) (orig. proceeding) (affirming that mandamus relief must be the exclusive remedy for the parties); Holloway v. Fifth Court of Appeals, 767 S.W.2d 680, 684 (Tex. 1989) (orig. proceeding) (noting that parties must have no other available appellate relief). Absent very specific exceptions, Texas jurisprudence requires that an alternative appellate remedy must not exist before a court may grant mandamus relief. In re State Bar of Tex., 113 S.W.3d 730, 734 (Tex. 2003) (orig. proceeding) (quoting Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992) (orig. proceeding)).

The Division has not acted beyond the scope of its lawful authority because the ALJ is the sole judge of the relevance and materiality of the evidence offered and of the weight and credibility to be given to the evidence. The ALJ may allow parties to conduct discovery as necessary. See TEX. LABOR CODE Ann. § 410.165 and § 410.162. Furthermore, Texas law contemplates that mental health records can be subjected to the subpoena power of a judicial or administrative proceeding. See TEX. HEALTH & SAFETY CODE § 611.006(a)(l 1). The ALJ has not clearly abused her discretion in ordering the production of these records when Mr. Heiliger has put Ms. Smith's mental condition at issue by seeking opinions that Ms. Smith suffered from stress that may have contributed to her death and her psychiatrist Dr. Marcellus treated Ms. Smith for Post-Traumatic Stress Disorder. (SCR 10, 19, 24, 28 and 30) Mr. Heiliger has several adequate remedies at law. The Deposition Subpoena at issue requires any records obtained by Fort Bend County to be held confidentially. (5RR2) The Texas Labor Code requires information relating to a workers' compensation claim to remain confidential when released to any person, except when used in court for the purposes of an appeal. See TEX. LABOR CODE Ann. § 402.083(a) and § 402.086(a). Mr. Heiliger has at least four other remedies: an Appeals Panel review; judicial review in district court; appellate review in the courts of appeal; final review in the Texas Supreme Court.

D. Ultra Vires Does Not Lie To sustain an ultra vires claim, a party must allege, and ultimately prove, that the named governmental employee acted without legal authority or failed to perform a purely ministerial act." Chambers-Liberty Ctys. Navigation Dist. v. State, 575 S.W.3d 339, 344-45 (Tex. 2019), citing City of El Paso v. Heinrich, 284 S.W.3d 366, 372 (Tex. 2009). Only prospective injunctive relief is available on an ultra vires claim. Id. at 374-77.

An ultra vires claim depends on the scope of the state official's authority, not the quality of the official's decisions. Honors A cad., Inc. v. Tex. Educ. Agency, 555 S.W.3d 54, 68 (Tex. 2018) (emphasis added), citing Hall v. McRaven, 508 S.W.3d 232, 234 (Tex. 2017). Thus, it is not an ultra vires act for an official to make an erroneous decision within the authority granted. Id. To fall within the ultra vires exception, a suit must allege that a state official acted without legal authority or failed to perform a purely ministerial act; it must not attack the official's exercise of discretion. Tex. Dep't ofIns., Div. of Workers' Comp. v. Brumfield, No. 04-15-00473-CV, 2016 WL 2936380, at *4-5 (Tex. App.-San Antonio May 18, 2016, no pet.). In that case the pleadings regarding the Commissioner of the Texas Department of Insurance simply stated that he acted beyond his statutory authority in failing to properly apply, interpret, and enforce the statute and rules for which declaratory relief was sought, Id. The Court held the pleadings failed to include any specific facts indicating that the Commissioner acted without legal authority or failed to perform a purely ministerial act. Id. Rather, the focus of the allegations was a discretionary act -- the Division's decision to deny a claim for workers' compensation. Id. "Complaints that an official reached a wrong result when exercising its delegated authority are insufficient to state an ultra vires claim of exceeding statutory authority." Id., quoting Moers v. Harris Co. Appraisal Dist., 469 S.W.3d 655, 666 (Tex. App.-Houston [1 st Dist.] 2015, pet. denied). The Brumfield Court ultimately held that Brumfield's pleadings affirmatively demonstrated that his claims against the Commissioner did not fall within the ultra vires exception. Id. For these reasons, an ultra vires claim does not lie in this case. The Division has not exceeded its authority in conducting discovery, ruling on discovery and ordering the disclosure of records authorized by statute to be disclosed via a subpoena. The Texas Workers' Compensation Act specifically sets out how subpoenas are to issue and how they are to be enforced in workers' compensation contested case hearings. Further, Ms. Smith's mental health records are not being disclosed publicly. The records are being disclosed as an authorized disclosure contemplated by the Texas Health and Safety Code. 12

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

2. NO PROBABLE RIGHT OF RELIEF EXISTS No probable right to the relief sought exists. Ms. Smith's mental health records are protected by a qualified privilege that can be pierced in judicial proceedings when a party makes the condition a part of its claim or defense.

Under Texas Health & Safety§ 611.006(11), a disclosure of mental records in an administrative proceeding where the agency has issued a subpoena for their production is a legally authorized disclosure. A person has a civil cause of action for damages only if he is aggrieved by the improper disclosure of confidential records. TEX. HEALTH & SAFETY CODE§ 611.005 (a), (c). Health and Safety Code Section 611.005 does not authorize a cause of action for an authorized disclosure of confidential records in a judicial or administrative proceeding under Section 611.006. Therefore, Mr. Heiliger has no cause of action to support his request for injunctive relief.

Texas law does protect mental health records but that protection is not an absolute privilege. R.K. v. Ramirez, 887 S.W.2d 836, 840 (Tex. 1994). It is a qualified privilege that can be pierced in judicial proceedings when a party makes the condition a part of its claim or defense. 13 In fact, a number of exceptions, most

See TEX. HEALTH & SAFETY CODE ANN.§ 611.006(a)(11 ). See also TEX. R. EVID. 510 ("If any party relies on the patient's physical, mental, or emotional condition as a part of the party's claim or defense and the communication or record is relevant to that condition.). commonly the patient-litigant exception, limits the scope of the privilege. Ramirez at 840. "Additionally, a party may not assert one of the privileges in order to withhold 'evidence which would materially weaken or defeat, the asserting party's claims."' Id .. Such a prohibited application of the privilege is an "offensive use." Id. Whether the mental health condition is part of a party's claim or defense is determined from the face of the pleadings and then, if necessary, from the allegedly privileged records. See In re Richardson Motorsports, Ltd., 690 S.W.3d 42, 56 (Tex. 2024) (orig. proceeding).

The patient-litigant exception is met in this case. The issue before the Division is whether Ms. Smith's death was a result of the compensable injury sustained on April 10, 2023. (SCR 10, 19, 24, 28 and 30) Mr. Heiliger placed Ms. Smith's mental condition in controversy by asserting there is a causal link between Ms. Smith's stressful work and her death. (SCR 10, 19, 24, 28 and 30) Mr. Heiliger obtained a letter from Ms. Smith's psychiatrist, Dr. Marcellus, stating that he treated Ms. Smith for a stress-related disorder. (SCR 10, 19, 24, 28 and 30) By Mr. Heiliger's raising stress as a cause of Ms. Smith's death, Dr. Marcellus' records concerning her complaints and sources of stress became relevant to and will affect the resolution of whether she died within the course and scope of her employment.

Mr. Heiliger has presented no evidence that there has been or will be an improper disclosure and he cannot because this disclosure is authorized by TEX. HEALTH & SAFETY CODE§ 611.006(a)(l l) and the Texas Rules of Evidence.

3. No PROBABLE, IMMINENT, OR IRREPARABLE INJURY EXISTS There is no probable, imminent or irreparable injury looming or even lurking in the vicinity of Mr. Heiliger at this stage. All of his rights, all of his due process are protected and can be handled at the Division level. The Texas Labor Code has given Mr. Heiliger a road map, the vehicle and the keys to get there. He simply refuses to follow procedure and has instead hijacked the legal system.

The Labor Code, the Rules promulgated by the Division and the Government Code, supra, all lay out the procedure for obtaining discovery and enforcing a discovery subpoena during a workers' compensation dispute. Mr. Heiliger and the District Court have veered off the required route the Legislature has mandated. The facts of whether the Deposition Subpoena should issue or not are not ripe for judicial review. A district court is the place to argue whether the Deposition Subpoena should be compelled, but there is only one way to get to the District Court at this stage and that is through Government Code 2001.201. Only the ALJ or the party seeking to compel a subpoena at the Division level can invoke the procedure in Government Code § 2001.201 to compel a subpoena at the Division level. This can only be done after the target of the subpoena or the person affected by it, in this case Mr. Heiliger, has indicated noncompliance or sought protection. Mr. Heiliger has done nothing at the Division level to allow Government Code § 2001.201 to be invoked. He has not objected to the live Deposition Subpoena. He has not filed a motion to quash the live Deposition Subpoena. He has not sought a protective order from the live Deposition Subpoena. Instead Mr. Heiliger has improperly sought judicial review before obtaining a final decision from the Division.

The policy to require a party to be aggrieved of a final decision of the Division of Workers' Compensation is to ensure disputes are resolved quickly and objectively. Allowing Mr. Heiliger to seek redress in district court deprives the Division of Workers' Compensation the chance to resolve disputed fact issues and apply its statutorily created authority, thereby distorting the balances struck in the Texas Workers' Compensation Act and frustrating the Legislature's intent. Further, an extra-statutory cause of action builds additional costs into the system by increasing litigation expenses to employees, insurers, and employers.

Allowing the administrative process to be circumvented as Mr. Heiliger has attempted would result in claimants running to district court at every adverse interlocutory order with potential conflicting results in 254 counties. The orderly administration of justice would become unpredictable and unreliable destroying the right to a fair and equitable adjudication at the administrative level. Not to mention the cost to injured workers' and their families, as well as the drawn out legal process before they could obtain relief.

Because neither the Division nor Fort Bend County has sought to enforce the Deposition Subpoena order under Government Code § 2001.201, and since there is no provision for the target of the subpoena or party affected by the subpoena to challenge the subpoena in district court until enforcement is sought in district court, the District Court has erred in asserting jurisdiction. Unless or until the ALJ or Fort Bend County moves to enforce the Deposition Subpoena, Mr. Heiliger has suffered no harm and the District Court has exceeded its authority to step in.

Further there is no harm because Fort Bend County argued before the District Court that the records will not be publicly disclosed. The Act prohibits the public disclosure of information derived from a workers' compensation claim unless a claim has been finally adjudicated. See Tex. Lab. Code§ 402.083 ((a) Information in or derived from a claim file regarding an employee is confidential and may not be disclosed by the division except as provided by this subtitle or other law. (b) Information concerning an employee who has been finally adjudicated of wrongfully obtaining payment under Section 415.008 is not confidential.) Further, information relating to a claim that is confidential under this subtitle remains confidential when released to any person, except when used in court for the purposes of an appeal. See

Tex. Lab. Code§ 402.086(a). Fort Bend County has never opposed an in camera inspection of Ms. Smith's mental records. In fact, Fort Bend County has protected the limited records it does possess by filing them as sensitive data at the trial court and appellate levels.

CONCLUSION

The District Court erred enjoining discovery at an administrative contested case hearing properly before the Texas Department of Insurance - Division of Workers' Compensation. Appellee has not shown an irreparable, imminent injury exists, nor has he shown a viable cause of action exists for the District Court to overstep its rightful bounds. The Texas Legislature, in its wisdom, saw fit to assign this matter to a specialized body with the tools, training and time to handle it properly. The Division of Workers' Compensation was created to take the load off the courts, to apply its focused knowledge to claims of workplace injuries without dragging hard-working folks through long-winded litigation. Parties like Appellee, who seek the end result without the journey, must mind the rules of the road or else the whole system runs off the rails. The Legislative scheme for conducting worker's compensation contested case hearings specifically sets out the process for the issuance and enforcement of discovery, including subpoenas.

Fort Bend County beseeches this Court to allow the proper administrative tribunal to carry out its mandated duty without further interference.

PRAYER WHEREFORE, ARGUMENT AND AUTHORITY CONSIDERED, the Appellant Fort Bend County respectfully requests the Court to reverse the April 2, 2025, Order Granting Temporary Injunction and Setting Trial on Merits and render judgment that this case be dismissed and for such further and other relief to which it may be entitled.

Respectfully submitted, DEAN G. PAPPAS LAW FIRM, PLLC By: Isl Lisa M Teachey Dean G. Pappas State Bar No. 15454375 [email protected] Mary M. Markantonis State Bar No.12986800 [email protected] Lisa M. Teachey State Bar No. 24056416 [email protected] Marilyn J. Allen State Bar No. 24025225 [email protected] 8588 Katy Freeway, Suite 100 Houston, Texas 77024 713-914-6200-Telephone 713-914-6201-Facsimile ATTORNEYS FOR APPELLANT FORT BEND COUNTY

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

Isl Lisa M Teachey Lisa M. Teachey

CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of this Appellant's Brief, including any and all attachments, was served on counsel of record by using the Court's e- filing system on the 20 th day of June 2025, addressed as follows: Via eFile through the electronic filing manager Russell L. Morris Pablo A. Franco Andrew W. Bruce McBryde Franco, PLLC 11000 Richmond Avenue, Suite 350 Houston, Texas 77042 Attorneys for Appellee Joshua Heiliger, Individually and on Behalf of the Estate of Lauren Brittane Smith, Deceased, and on Behalf of Death Benefits Beneficiaries Joshua David Heiliger and Emma Destiny Heiliger, Real Party in Interest Via eFile through the electronic filing manager Ken Paxton Brent Webster Ralph Molina James Lloyd Ernest C. Garcia Sherlyn Harper Office of the Attorney General of Texas 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 Appellant Francesca Okonkwo, Administrative Law Judge in her official capacity, Real Party in Interest

Via eFile through the electronic filing manager LaVerne Chang Lovett Blvd. Houston, Texas 77006 Attorney for Greater Houston Psychiatric Associates, PLLC, Real Party in Interest

Isl Lisa M Teachey Lisa M. Teachey

APPENDIX

TABA: April 2, 2025, Order denying Fort Bend County's Plea to the Jurisdiction and Motion to Dismiss (CR611) TABB: April 2, 2025, Order granting temporary injunction and setting case for trial on the merits (CR606-610) TABC: January 27, 2025, Division Deposition Subpoena ofMs. Smith's mental records (5RR2); TABD: Division - Contested Case Hearing set notice for August 7, 2025 TABE: Division - Order vacating the September 19, 2024, Subpoena and Vacating the Subsequent Order to Compel TABF: Division - Fort Bend County's September 9, 2024, Amended Opposed Motion to Subpoena Medical Records from Dr. John Marcellus; TABG: Division - Claimants' September 9, 2024, Objection to Carrier's Opposed Motion to Subpoena mental Health Records from Dr. John Marcellu TABH: Division - September 19, 2024, Order on Motion to Subpoena Medical Records TABI: Petitioner's Verified Original Petition for Declaratory Judgment, Application for Temporary Restraining Order, Temporary Injunction, and Permanent Injunction filed November 7, 2024 TABJ: Texas Government Code § 2001.201 TABK: Texas Health and Safety Code, Chapter 611 TABL: Texas Rule of Evidence 510 TABM: Texas Labor Code§ 402.001 TABN: Texas Labor Code§ 402.00114 TABO: Texas Labor Code § 410. 002 TABP: Texas Labor Code§ 410.003 TABQ: Texas Labor Code § 410.157 TABR: Texas Labor Code§ 410.158 TABS: Texas Labor Code§ 410.162 TABT: Texas Labor Code§ 410.163 TABU: Texas Labor Code§ 410.165 TABV: Texas Labor Code § 410.251 TABW: 28 Tex. Admin. Code § 141.4 TABX: 28 Tex. Admin. Code § 142.1 TABY: 28 Tex. Admin. Code § 142.2 TABZ: 28 Tex. Admin. Code § 142.12 TAB AA: 28 Tex. Admin. Code § 142.13 TAB BB: Texas Labor Code§ 406.034 TAB CC: Texas Labor Code § 402.083 TAB DD: Texas Labor Code § 402.086 TAB EE: Texas Labor Code§ 415.008

TAB A TAB B TAB C TAB D TAB E TAB F TAB G TAB H TAB I TAB J TAB K TAB L TAB M TAB N TAB O TAB P TAB Q TAB R TAB S TAB T TAB U TAB V TAB W TAB X TAB Y TAB Z TAB AA TAB BB TAB CC TAB DD TAB EE Automated Certificate of eService This automated certificate of service was created by the efiling system.

The filer served this document via email generated by the efiling system on the date and to the persons listed below. The rules governing certificates of service have not changed. Filers must still provide a certificate of service that complies with all applicable rules.

Hope Furlow on behalf of Lisa Teachey Bar No. 24056416 [email protected] Envelope ID: 102265100 Filing Code Description: Motion Filing Description: APPELLANT FORT BEND COUNTY'S MOTION TO AMEND BRIEF Status as of 6/20/2025 5:19 PM CST Case Contacts Name BarNumber Email TimestampSubmitted Status Lisa Teachey 24056416 [email protected] 6/20/2025 5:08:03 PM SENT Laverne Chang 783819 [email protected] 6/20/2025 5:08:03 PM SENT Marilyn Allen 24025225 [email protected] 6/20/2025 5:08:03 PM SENT Mary Markantonis 12986800 [email protected] 6/20/2025 5:08:03 PM SENT Dean Pappas 15454375 [email protected] 6/20/2025 5:08:03 PM SENT Andrew Bruce 24113627 [email protected] 6/20/2025 5:08:03 PM SENT Russell Morris 24099150 [email protected] 6/20/2025 5:08:03 PM SENT Hope Burnett-Furlow [email protected] 6/20/2025 5:08:03 PM SENT Pablo Franco 24121625 [email protected] 6/20/2025 5:08:03 PM SENT Catherine Hughes [email protected] 6/20/2025 5:08:03 PM SENT Sherlyn Harper [email protected] 6/20/2025 5:08:03 PM SENT James Z.Brazell [email protected] 6/20/2025 5:08:03 PM SENT Meridith Fischer [email protected] 6/20/2025 5:08:03 PM SENT