ACCEPTED 15-25-00102-CV FIFTEENTH COURT OF APPEALS AUSTIN, TEXAS 8/12/2025 9:20 AM NO. 15-25-00102-CV CHRISTOPHER A. PRINE CLERK IN THE COURT OF APPEALS FILED IN 15th COURT OF APPEALS FOR THE FIFTEENTH JUDICIAL DISTRICT OF TEXAS AUSTIN, TEXAS AT AUSTIN, TEXAS 8/12/2025 9:20:03 AM CHRISTOPHER A. PRINE Clerk IN RE FORT BEND COUNTY, Relator,

RELATING TO TRIAL COURT CAUSE NO. 2024-78536 11TH JUDICIAL DISTRICT COURT OF HARRIS COUNTY, TEXAS THE HONORABLE KRISTEN B. HAWKINS, PRESIDING JUDGE RELATOR FORT BEND COUNTY'S REPLY BRIEF IN SUPPORT OF ITS PETITION FOR WRIT OF MANDAMUS

Dean G. Pappas Texas Bar No. 15454375 [email protected] Mary M. Markantonis Texas Bar No. 12986800 [email protected] Lisa M. Teachey Texas Bar No. 24056416 [email protected] Marilyn G. Allen Texas Bar No. 24025225 [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 NO. 15-25-00102-CV

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

IN RE FORT BEND COUNTY, Relator,

RELATING TO TRIAL COURT CAUSE NO. 2024-78536 11TH JUDICIAL DISTRICT COURT OF HARRIS COUNTY, TEXAS THE HONORABLE KRISTEN B. HAWKINS, PRESIDING JUDGE RELATOR FORT BEND COUNTY'S REPLY BRIEF IN SUPPORT OF ITS PETITION FOR WRIT OF MANDAMUS

TO THE HONORABLE JUSTICES OF THE FIFTEENTH COURT OF APPEAL: Relator Fort Bend County files its Reply Brief in support of its Petition for Writ of Mandamus as follows:

I.

OBJECTIONS TO HEILIGER'S STATEMENT OF FACTS Relator Fort Bend County ("Fort Bend") objects to Real Party in Interest Joshua Heiliger's statement of facts that the Administrative Law Judge entered the deposition subpoena at issue over Heiliger's written objection. See Heiliger's Response at page 9. On January 24, 2025, Fort Bend County submitted an amended request for a Deposition Subpoena, effectively replacing the December 27, 2024 motion for subpoena. (CR 387-399) While Mr. Heiliger indicated he was opposed to the amended motion for the new Deposition Subpoena in a conference with Fort Bend County's counsel, Mr. Heiliger filed no objection.

Administrative Law Judge Okonkwo granted Fort Bend County's Deposition Subpoena of Dr. Marcellus on January 27, 2025. (CR401-402, 5RR2, Appendix C). This subpoena was now a deposition subpoena, which was substantively different from the previous subpoenas. Mr. Heiliger filed no objection at the Division, nor a motion to quash, nor a motion seeking protection. Mr. Heiliger filed no written objection to the subpoena at issue here and has not pointed to anything in the record showing otherwise.

II.

ARGUMENT AND AUTHORITY

1. MANDAMUS IS PROPER Mandamus is proper because an Appeal would not provide Relator Fort Bend County an adequate remedy. Texas Civil Practice & Remedies Code § 51.014 does not allow Fort Bend to argue jurisdiction when appealing the granting of injunctive relief because Fort Bend has waived sovereign immunity for the limited purpose of providing workers' compensation as a self-insured governmental entity. Fort Bend is not and cannot claim as a governmental entity in

this instance that it is immune from a District Court's judicial review power of a final Appeals Panel Decision in a workers' compensation dispute.

While CPRC 51.014 provides an appellate remedy on the merits of the injunction granted by the District Court, such relief would not address the subject matter jurisdiction surrounding this workers' compensation proceeding.

Fort Bend must seek extraordinary relief in this case because the judicial appropriation of state agency authority would be a clear disruption of the "orderly processes of government" which the Texas Supreme Court has found is one of a few circumstances when a party may seek extraordinary relief despite a remedy available by appeal. See In re Entergy Corp., 142 S.W.3d 316, 320-231 (Tex. 2004) ( orig. proceeding). "This disruption, coupled with the hardship imposed ... by a postponed appellate review, warrants an exception to our general proscription against using mandamus to correct incidental trial court rulings." Id. Fort Bend County contemporaneously filed an Appeal on the merits of the injunction granted by the District Court to ensure it met all appellate deadlines in the event this Petition for Writ of Mandamus was denied. Appellant respectfully requests this Court to take up the jurisdiction matter presented in this mandamus proceeding before consideration of the Appeal.

2. OTEKA DOES NOT APPLY Fort Bend filed its Petition for Writ of Mandamus on June 12, 2025. One day later the Texas Supreme Court issued its opinion in Univ. of Tex. Rio Grande Valley v. Oteka, 715 S.W. 3d 734, 743 (Tex. 2025). Although Fort Bend sought leave to amend its Petition one week afterward, the amendment was to correct record cites. Fort Bend now will address Oteka and its reach relating to jurisdiction in workers' compensation matters. Fort Bend maintains that Oteka is distinguishable from the matter at bar.

The basis of Fort Bend's Petition for Writ of Mandamus is whether the 11 th District Court has subject matter jurisdiction over a discovery issue involving a claim properly pending before the Texas Division of Workers' Compensation ("Division"). Put simply, Real Party in Interest Joshua Heiliger ("Mr. Heiliger") is asking the Division to determine course and scope of employment but in the same breath - and in total disregard for the Texas Legislature's grant of discovery authority for administrative hearings -- is asking the 11 th District Court to bar the Division from allowing discovery to decide that issue.

Oteka is not applicable in this instance.

The holding in Oteka is not that the Division never has exclusive jurisdiction to decide issues of compensability. Rather, the holding in Oteka is simply that blanket statements that the Division has exclusive jurisdiction to determine course

and scope of employment are not proper in a limited set of cases, like when the claim is not within the compensability context. The Oteka case was about a tort claim outside the scope of workers' compensation in which the Defendant tried to use Division of Workers' Compensation jurisdiction to wrangle the best posture for its liability coverage for the tort allegation.

Rita Oteka, an employee of the University of Texas Rio Grande Valley, was walking when she was struck by a vehicle driven by a university police officer. Id. 736-37. Although the University reported the injury to its workers' compensation claims administrator, Ms. Oteka from the start told the University she was going to use her personal insurance. Id. at 73 7. She was voluntarily attending an event on campus to support a former student. Id. at 736-37. At the time, the University already had decided the claim did not occur in the course and scope of her employment. Id. Ms. Oteka did not challenge that decision. Id. at 737. More than a year after her injury, Ms. Oteka sued the police officer for negligence. Id. The University provided his defense. Id. For the first time, the University alleged the injury occurred in course and scope of employment, so Ms. Oteka was barred from any common-law claims against the University because the Division of Workers' Compensation had exclusive jurisdiction in matters regarding workplace injuries. Id.

The Texas Supreme Court took up the Oteka matter to settle the split of authority regarding the Division's jurisdiction in very particularized fact patterns involving questions of course and scope of employment. Id. at 739.

The Court found that Oteka's personal-injury claim was not predicated on entitlement to workers' compensation. Id. at 741. The Court pointed out that even the University maintained for three years that Ms. Oteka's claim was outside the course and scope of her employment. Id. Based on the facts of Ms. Oteka's claim, the Court reasoned that the initial determination of "any" course and scope issue does not fall within the Division's exclusive jurisdiction. Id. The Texas Supreme Court's holding in Oteka was very narrowly drawn. Id. at 743.

"We conclude that the Act does not manifest a legislative intent that this unusual process should be the exclusive means for determining the course-and- scope issue when an employer raises it by an affirmative defense to an employee's lawsuit." Id. The Court held that " ... the Division does not have exclusive jurisdiction to determine whether an injury occurred in the course and scope of employment when ( 1) the employer raises the issue as an affirmative defense outside the compensability context and (2) the employee's requested relief does not depend on any entitlement to benefits." Id. at 744.

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

Id. at 744, FN 51, (emphasis of page numbers added).

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

And Fort Bend did not cite those cases for the premise that the Division always has exclusive jurisdiction over course and scope. Fort Bend did not cite Berrelez on pages 74 and 75 at all. 1 Fort Bend did cite Prentis and Tyler Asphalt on the pages Oteka referenced because at the time Fort Bend filed its Petition for Writ of Mandamus, those were the precedent for course and scope jurisdiction. However, Fort Bend just as readily can make its argument relying on Oteka and the other cases cited in its Petition.

Mr. Heiliger has never claimed his request for death benefits compensation 1s not properly before the Division. More importantly, Mr. Heiliger's claim 1Although Fort Bend did cite Berrelez at page 73, the cite quoted Tyler Asphalt on the pages Oteka disapproved. absolutely depends on entitlement to workers' compensation benefits. In this context, the Division does have exclusive jurisdiction and its discovery procedures and remedies apply under the following statutes and rules: o Texas Labor Code§ 410.003 - Restricts the application of Chapter 2001 of the Government Code (Administrative Procedure Act) in workers' compensation administrative proceedings unless specifically provided in Chapter 410 of the Act (Appendix P); o Texas Labor Code § 410.157 - Authorizes the promulgation of rules for conducting contested case hearings at the Division (Appendix Q); o Texas Labor Code § 410.158 - Authorizes limited discovery during the dispute resolution process at the Division (Appendix R); o Texas Labor Code § 410.162 - Allows, for good cause shown, that a party may obtain permission from the administrative law judge to conduct additional discovery as necessary (Appendix S) ; o Texas Labor Code § 410.165 -- Authorizes the administrative law judge as the sole judge of the relevance and materiality of the evidence offered and of the weight and credibility to be given to the evidence (Appendix U);. o 28 Tex. Admin. Code § 141.4 -- Pertinent information at a benefit review conference is defined as all information relevant to the resolution of the disputed issue or issues to be addressed at the benefit review conference, including but not limited to, among other things, the injured employee's medical records (Appendix W); o 28 Tex. Admin. Code § 142.2 -- Authorizes the authority of the Division ALJ to, among other things, issue a subpoena on its own motion or at the request of a party if the ALJ determines the party has a good cause, rule on admissibility, and determine the weight and credibility of evidence (Appendix Y); o 28 Tex. Admin. Code § 142.12 -- Allows the Division ALJ to issue a subpoena on its own motion or at the request of a party upon a determination of relevancy to the disputed issue (Appendix Z); o 28 Tex. Admin. Code § 142.13 - Authorizes the Division ALJ to grant a party permission to conduct discovery beyond that described in Texas Labor Code § 410 .15 8 upon a showing of good cause at a hearing held for this purpose (Appendix AA); and o 28 Tex. Admin. Code § 142.1 - Mandates that the only section of the Government Code (Administrative Procedure Act) that applies to the contested cases hearings is Government Code § 2001.201 relating to the enforcement of subpoenas (Appendix X).

By promulgating these statutes and allowing the Texas Department of Insurance to adopt rules to enforce the provisions of the Act, the Texas Legislature intended to give the Division full authority to determine course and scope of employment when the issue of compensability is properly before it.

Mr. Heiliger's reliance on Oteka is misplaced. As the Texas Supreme Court pointed out in explaining its holding, the Division's exclusive-remedy provision is essential to the Act's continued success. Oteka at 744-45.

"We are mindful, as both the University and amicus curiae caution, that some may improperly view our jurisdictional holding as a path to circumvent the statutory scheme and take a shot at a greater tort recovery before seeking benefits," Id. But the Texas Supreme Court warned that "legislative and judicial safeguards are in place to maintain the Act's balance of advantage and detriment." Id.

3. HEALTH AND SAFETY CODE Mr. Heiliger contends that Health and Safety Code § 611 (Appendix K) merely provides a safe harbor for medical providers to disclose confidential information and contends that this statute does not provide a mechanism for piercing the privilege of confidentiality. See Heiliger's Response page 47-48. Fort Bend would argue that it is much more. A search of Westlaw showed no case law or citing references referring to this statute as a safe harbor. By its plain meaning it should be read as a codification of Texas Rule of Evidence 510(d)(5) (Appendix L). Both of these evidentiary procedures grant authority for the tribunal, whether it be an ALJ or a District Judge, to determine if the mental health records confidentiality privilege should be pierced.

III.

CONCLUSION Fort Bend has stipulated that missteps were made in the administrative discovery process. But those errors were corrected each time Mr. Heiliger pointed them out. The crux of Fort Bend's request for relief is that Mr. Heiliger needs to make the required objection or request for relief that would abate the issuance of the deposition subpoena until either the ALJ or Fort Bend seeks to compel the subpoena pursuant to Government Code 2001.201.

Fort Bend has agreed on the record to go back to the Division and either allow the ALJ to review the records at issue in camera or allow Mr. Heiliger to raise some sort of objection or seek some sort of protection. If Mr. Heiliger chooses to lodge a formal objection or formally seek protection, then Fort Bend and/or the ALJ would have to decide whether to pursue compelling compliance with the subpoena under the process mandated by Government Code 2001.201,

where Mr. Heiliger would be afforded all the protections he is improperly seeking by trying to circumvent the administrative process.

PRAYER WHEREFO:RE, ARGUMENT AND AUTHORITY CONSIDERED, the Relator Fort Bend County respectfully requests the Court to grant this Writ of Mandamus, direct The Honorable Kristen B. Hawkins to vacate her April 2, 2025, Order Denying Fort Bend County's Plea to the Jurisdiction and Motion to Dismiss and her April 2, 2025, Order Granting Temporary Injunction and Setting Trial on Merits and to dismiss this case for lack of subject matter jurisdiction and for such further and other relief to which it may be entitled.

Respectfully submitted, DEANG.PAPPASLAWFIRM PLLC By:_ L_l ~-=------------- ~ -----=-----..c:~ Dean G. Pappas Texas Bar No. 15454375 [email protected] Mary M. Markantonis Texas No.12986800 [email protected] Lisa M. Teachey Texas Bar No. 24056416 [email protected] Marilyn J. Allen Texas Bar No. 24025225 [email protected] 8588 Katy Freeway, Suite 100 Houston, Texas 77024 Telephone: 713-914-6200 Telecopier: 713-914-6201 ATTORNEYSFORRELATOR FORT BEND COUNTY RULE 52.3{J) CERTIFICATION In compliance with Rule 52.3G) of the Texas Rules of Appellate Procedure, I certify that I have reviewed the Relator's Reply in support of its Petition for Writ of Mandamus and have concluded that every factual statement in the reply is supported by competent evidence included in the record.

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

CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of this Reply Brief in Support of its Petition for Writ of Mandamus, including any and all attachments, was served on counsel of record by using the Court's e-filing system and on The Honorable Kristen B. Hawkins via email to her Court Coordinator, Jackie Struss, on the 12 th day of August, 2025, addressed as follows: Via eFile through the electronic filing manager Russell L. Morris Pablo A. Franco Andrew W. Bruce McBryde Franco, PLLC 11000 Richmond Avenue, Suite 350 Houston, Texas 77042 Attorneys for Joshua Heiliger, Individually and on Behalf of the Estate of Lauren Brittane Smith, Deceased, and on Behalf of Death Benefits Beneficiaries Joshua David Heiliger and Emma Destiny Heiliger, Real Party in Interest

Via eFile through the electronic filing manager Ken Paxton Brent Webster Ralph Molina James Lloyd Ernest C. Garcia Sherlyn Harper Office of the Attorney General of Texas Travis Street, Suite 1520 Houston, Texas 77002 James Z. Brazell Assistant Attorney General, Administrative Law Division P.O. Box 12548, Capital Station Austin, Texas 78711-2548 Attorneys for Francesca Okonkwo, Administrative Law Judge zn her official capacity, Real Party in Interest

Via eFile through the electronic filing manager LaVerne Chang Lovett Blvd. Houston, Texas 77006 Attorney for Greater Houston Psychiatric Associates, PLLC, Real Party in Interest Via email to jackie [email protected] The Honorable Kristen B. Hawkins c/o Jackie Struss, Coordinator jackie [email protected] th Civil District Court Harris County Civil Courthouse Caroline, 9th Floor Houston, Texas 77002 Respondent

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: 104249769 Filing Code Description: Response Filing Description: RELATOR FORT BEND COUNTY'S REPLY BRIEF IN SUPPORT OF ITS PETITION FOR WRIT OF MANDAMUS Status as of 8/12/2025 9:24 AM CST Case Contacts Name BarNumber Email TimestampSubmitted Status Mary Markantonis [email protected] 8/12/2025 9:20:03 AM SENT Laverne Chang 783819 [email protected] 8/12/2025 9:20:03 AM SENT Marilyn Allen 24025225 [email protected] 8/12/2025 9:20:03 AM SENT James Brazell 2930100 [email protected] 8/12/2025 9:20:03 AM SENT Sherlyn Harper 24093176 [email protected] 8/12/2025 9:20:03 AM SENT Russell Morris 24099150 [email protected] 8/12/2025 9:20:03 AM SENT Hope Burnett-Furlow [email protected] 8/12/2025 9:20:03 AM SENT Pablo Franco 24121625 [email protected] 8/12/2025 9:20:03 AM SENT Andrew Bruce 24113627 [email protected] 8/12/2025 9:20:03 AM SENT Lisa M.Teachey [email protected] 8/12/2025 9:20:03 AM SENT Tanisha Doublin [email protected] 8/12/2025 9:20:03 AM SENT Catherine Hughes [email protected] 8/12/2025 9:20:03 AM SENT Dean Pappas [email protected] 8/12/2025 9:20:03 AM SENT Meridith Fischer [email protected] 8/12/2025 9:20:03 AM SENT Jacquelyn Compton [email protected] 8/12/2025 9:20:03 AM SENT Jackie Struss [email protected] 8/12/2025 9:20:03 AM SENT Joshua DavidHeiliger, et al. [email protected] 8/12/2025 9:20:03 AM SENT Veronica Gonzalez [email protected] 8/12/2025 9:20:03 AM SENT