Court of Appeals of Texas, Third District, Austin
Dr. Robert Coolbaugh, D.C., Appellant
Texas Department of Insurance-Division of Workers' Compensation and Commissioner Ryan Brannan, in his Official Capacity, Appellees
THE 353RD DISTRICT COURT OF TRAVIS COUNTY NO.
D-1-GN-15-005776, THE HONORABLE LORA J. LIVINGSTON, JUDGE
Chief Justice Rose, Justices Kelly and Shannon [*]
an appeal from the judgment of the district court of Travis
County sustaining a plea to the jurisdiction and affirming an
order of the Commissioner of Workers' Compensation.
Appellant is Robert Coolbaugh, D.C.; appellees are the Texas
Department of Insurance-Division of Workers' Compensation
(the Division) and Commissioner Ryan Brannan (the
Division and the Commissioner filed a multifaceted plea to
the jurisdiction challenging the court's subject-matter
jurisdiction. After hearing, the district court granted the
plea and dismissed all of Coolbaugh's claims save for his
claim for judicial review of the Commissioner's Penalty
Order. After conducting the suit for judicial review, the
district court rendered judgment affirming the
Commissioner's Penalty Order. This Court will affirm the
district court's judgment.
filed a declaratory-judgment suit complaining, among other
things, of two orders: (1) a 2013 order of the State Office
of Administrative Hearings (SOAH) requiring him to pay a $8,
326.90 refund to an insurance company as a final disposition
of a medical-fee dispute (the Refund Order),  and (2) the order
of the Commissioner imposing a $10, 000 administrative
penalty for his failure to comply with Division orders
requiring him to produce requested information and to furnish
proof of payment of the Refund Order to the insurance company
(the Penalty Order).
the Refund Order, Coolbaugh asserted that the Division had
acted beyond its authority regarding certain disputed medical
bills; he also challenged one of the controlling agency
plea to the jurisdiction, the Division claimed that the court
lacked jurisdiction to review Coolbaugh's challenge to
the Refund Order because it became final in October 2013,
when he did not seek judicial review. According to the plea,
SOAH rendered the Refund Order in August 2013. Coolbaugh did
not challenge the Refund Order and it became final in October
2013. Coolbaugh filed the instant suit complaining of that
order in December 2015.
the parties' briefing and the correspondence between the
district court and counsel, it is apparent that the district
court determined the plea to the jurisdiction after an
evidentiary hearing, yet Coolbaugh filed no reporter's
record in this Court. See Michiana Easy Livin'
Country, Inc, v. Holten, 168 S.W.3d 777, 783 (Tex. 2005)
("If the proceeding's nature, the trial court's
order, the parties' briefs, or other indications show
that an evidentiary hearing took place in open court, then a
complaining party must present a record of that hearing to
establish harmful error.") In the absence of a
reporter's record, this Court will presume that the
evidence supports the district court's order. Fiesta
Mart, Inc. v. Hall, 886 S.W.2d 440, 442-43 (Tex.
App.-Houston [1st Dist] 1994, no writ). Accordingly, we
presume that the instant suit was filed more than two years
after the Refund Order became final and conclude that the
district court correctly determined that it lacked
jurisdiction to review the order. See HCA Healthcare
Corp. v. Texas Dep't of Ins., 303 S.W.3d 345, 352
(Tex. App-Austin 2009, no pet.). His argument
notwithstanding, Coolbaugh cannot side-step the district
court's lack of jurisdiction to review the Refund Order
"by cloaking . . . [his] complaint in the mantle of a
suit for declaratory judgment." S.C. San Antonio,
Inc. v. Texas Dep't of Human Servs., 891 S.W.2d 773,
779 (Tex. App - Austin 1995, writ denied).
avoid the Division's plea to the jurisdiction asserting
sovereign immunity, Coolbaugh alleged that the Penalty Order
was an ultra vires act by the Commissioner. In its order
granting the plea to the jurisdiction, the district court
concluded that Coolbaugh failed to plead a valid ultra vires
claim against the Commissioner and dismissed him from the
ultra vires exception to the sovereign-immunity doctrine
permits suits against state officials for nondiscretionary
acts unauthorized by law. Texas Dep't of Transp. v.
Sefzik¸ 355 S.W.3d 618, 621 (Tex. 2011). Coolbaugh
alleged generally that the Division misapplied the Labor Code
and the Division rules. It is true that Coolbaugh sued the
Commissioner in his official capacity, but as we understand
his pleadings, he asserted no factual allegations against the
Commissioner that are distinct from those of the Division as
a whole. The only distinct claim asserted against the
Commissioner was that he undertook ultra vires acts in
rendering the Penalty Order. The Commissioner argues,
correctly, that this cannot be a valid ultra vires claim
since the Labor Code expressly empowers him to assess
administrative penalties for failure to comply with "a
rule, order, or decision of the commissioner." Tex. Lab.
Code § 415.021(a).
hearing, the district court rendered judgment affirming the
Commissioner's Penalty Order, which imposed a $10, 000
administrative penalty for Coolbaugh's failure to comply
with Division orders requiring him to produce requested
information and to furnish proof of payment of the Refund
Order to the insurance company.
faults the Penalty Order because it imposes a penalty for
violations of the Refund Order, which he claims is void and
unconstitutional. However, he ignores the fact that the
Refund Order is now final and cannot be challenged. The
Division and the Commissioner argue that the district court
correctly determined that the Commissioner's Penalty
Order is supported by substantial evidence. We agree.
substantial-evidence review, the court presumes that the
agency order is supported by substantial evidence and the
burden is on the contestant to prove otherwise. Texas
Health Facilities Comm'n v. Charter Med.-Dall, Inc.,665 S.W.2d 446, 453 (Tex. 1984). The court may not substitute
its judgment for that of the agency as to the weight of the
evidence on matters committed to agency discretion. Board
of Law Exam 'rs v. Stevens,868 S.W.2d 773, 777
(Tex. 1994). If reasonable minds could have ...