Opinion issued January 16, 2014




                                    In The

                             Court of Appeals
                                   For The

                        First District of Texas
                           ————————————
                            NO. 01-13-00345-CV
                          ———————————
                    WILLIS FLOYD WILEY, Appellant
                                      V.
        AMERICAN ZURICH INSURANCE COMPANY, Appellee


                  On Appeal from the 113th District Court
                           Harris County, Texas
                     Trial Court Case No. 2012-68770


                        MEMORANDUM OPINION

     Appellant Willis Floyd Wiley appeals from the trial court’s dismissal of his

claims against Appellee American Zurich Insurance Company. We affirm.
                                 BACKGROUND

      Following the compensable work-related death of Lee Otis Ryans, Wiley

sought death benefits from Ryans’s employer’s worker’s compensation insurer,

American Zurich. At the conclusion of a Contested Case hearing, the Texas

Department of Insurance Division of Workers’ Compensation Hearing Officer

entered a November 30, 2010 order concluding that “Willis Floyd Wiley is not a

proper legal beneficiary of Lee Ryans, Decedent, and is not entitled to death

benefits.” The Appeals’ Panel rejected Wiley’s challenge to that order, and notice

was issued that the Hearing Officer’s Decision and Order became final on

February 28, 2011. The notice also stated, “If you are not satisfied with this

decision and desire to have the dispute resolved in court, then you must file a

lawsuit in the appropriate court.”

      On March 28, 2011, Wiley sued American Zurich in federal district court

alleging civil rights violations. On October 12, 2011, the federal court dismissed

Wiley’s federal claims with prejudice and his state claims without prejudice.

      More than a year later, on November 20, 2012, Wiley sued American Zurich

in state court under numerous statutory and constitutional theories, all related to

American’s Zurich’s denying him death beneficiary status.         American Zurich

answered and filed a Plea to the Jurisdiction, arguing that the lawsuit challenging

the administrative beneficiary determination was untimely and, thus, the trial court


                                         2
lacked jurisdiction. Following a hearing, the trial court dismissed Wiley’s suit, and

Wiley timely filed this appeal.

                                  JURISDICTION

      In his sole issue on appeal, Wiley argues that the trial court erred by

dismissing his claims for lack of jurisdiction.

A.    Applicable Law

      Whether a court has subject-matter jurisdiction is a question of law reviewed

de novo. Texas Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex.

2004).

      Judicial review of “a final decision of the appeals panel regarding

compensability or eligibility for or the amount of income or death benefits” is

provided for, and governed, by the Chapter 410 of the Texas Labor Code. TEX.

LAB. CODE ANN. § 410.301(a) (Vernon 2006); see also id. § 410.251 (providing for

judicial review of appeals panel’s decisions if administrative remedies are

exhausted). Chapter 410 also provides the deadline for seeking such review,

      A party may seek judicial review by filing suit not later than the 45th
      day after the date on which the division mailed the party the decision
      of the appeals panel. For purposes of this section, the mailing date is
      considered to be the fifth day after the date the decision of the appeals
      panel was filed with the division.
Id. § 410.252(a).




                                           3
      Pre-2000 cases uniformly interpreted this deadline to be mandatory and

jurisdictional. E.g., Tex. Workers’ Comp. Comm’n v. Hartford Accident & Indem.

Co., 952 S.W.2d 949, 952 (Tex. App.—Corpus Christi 1997, pet. denied) (citing

Morales v. Emp’rs Cas. Co., 897 S.W.2d 866, 868 (Tex. App.—San Antonio 1995,

writ denied)); Boone v. St. Paul Fire & Marine Ins. Co., 968 S.W.2d 468, 470

(Tex. App.—Fort Worth 1998, pet. denied); Benavidez v. Travelers Indem. Co. of

Conn., 960 S.W.2d 422, 424 (Tex. App.—Austin 1998, no pet.).

      In 2000, the supreme court, in Dubai Petroleum Co. v. Kazi, overruled its

prior cases holding that failure to comply with statutory requirements is always

jurisdictional. 12 S.W.3d 71, 76 (Tex. 2000). At issue in Kazi was the statutory

requirement that—in a wrongful death suit involving the death of citizen of a

foreign country—the foreign county at issue “has equal treaty rights with the

United States on behalf of its citizens.” Id. at 73–74. The trial court in that case,

concluding that the plaintiffs did not meet their burden of demonstrating the

country at issue (India) had equal treaty rights with the United States, dismissed for

lack of subject-matter jurisdiction. Id. The supreme court disagreed, explaining

that the sound policy considerations mitigated against treating all statutory

prerequisites to suit as implicating subject-matter jurisdiction rather than the

plaintiff’s right to recover. Id. at 76–77.




                                              4
      We have since embraced the Austin Court of Appeals’ approach to applying

Kazi as providing “a workable distinction between statutory requirements that

trigger jurisdictional implications after Kazi and those that do not.” Helton v. R.R.

Comm’n of Tex., 126 S.W.3d 111, 118 (Tex. App.—Houston [1st Dist.] 2003, pet.

denied) (citing Sierra Club v. Tex. Natural Res. Conservation Comm’n, 26 S.W.3d

684 (Tex. App.—Austin 2000), aff’d, 70 S.W.3d 809 (Tex 2002)). Under that

framework, “[i]f a statutory requirement ‘defines, enlarges, or restricts the class of

cause the [trial] court may decide or the relief the court may award,’ the

requirement is jurisdictional.” Id.     “If it does none of these, the statutory

requirement is but a condition on which the plaintiff's right to relief depends.” See

id.

      With respect to the specific statutory deadline at issue in this case, the

Beaumont Court of Appeals and the Fourteenth District Court of Appeals in

Houston have acknowledged that Kazi may impact whether section 410.252(a)’s

deadline should be considered jurisdictional, but have saved resolution of that issue

for another day. Beaumont Indep. Sch. Dist. v. Parkerson, 105 S.W.3d 761, 762

n.1 (Tex. App.—Beaumont 2003, no pet.) (“We do not determine [whether it is

jurisdictional] as it is not necessary to the disposition of this appeal but note that

since Dubai Petroleum Co. v. Kazi, 12 S.W.3d 71 (Tex. 2000), it is

questionable.”); Ins. Co. of State of Pa. v. Flores, No. 14-05-00346-CV, 2006 WL


                                          5
1140388, at *1 n.1 (Tex. App.—Houston [14th Dist.] April 27, 2006, no pet.)

(mem. op.) (“[I]n this restricted appeal, we need not determine whether the . . .

deadline is jurisdictional because the record lacks sufficient evidence to establish

whether [appellee] filed his petition within that deadline”).

      The Fort Worth and Waco Courts of Appeals have considered, and

ultimately disagreed, about whether Kazi alters the classification of section

410.252(a)’s timeliness as jurisdictional.          Compare Tex. Mun. League

Intergovernmental Risk Pool v. Burns, 209 S.W.3d 806, 812 n.9 (Tex. App.—Fort

Worth 2006, no pet.) (rejecting argument that, under Kazi, the deadline is a

limitations period rather than a jurisdictional requirement), with Tex. Dep’t of

Transp. v. Beckner, 74 S.W.3d 98, 103 (Tex. App.—Waco 2002, no pet.) (applying

Kazi to conclude that the deadline is “a limitations period, not a jurisdictional

requirement”).

      And, finally, several courts of appeals—including our Court—have

continued to interpret section 410.252(a)’s deadline as jurisdictional without any

mention of a challenge to a jurisdictional plea as an appropriate procedural vehicle

based on Kazi. E.g., Davis v. Am. Cas. Co. of Reading, Pa., 408 S.W.3d 1, 6 (Tex.

App.—Amarillo 2012, pet. denied); DeVore v. Am. Mfr.’s Mut. Ins. Co., No. 01-

07-00495-CV, 2008 WL 2611886, at *2 (Tex. App.—Houston [1st Dist.] June 27,

2008, no pet.); Fire & Cas. Ins. Co. of Conn. v. Miranda, 293 S.W.3d 620, 624–25


                                          6
(Tex. App.—San Antonio 2009, no pet.); LeBlanc v. Everest Nat’l Ins. Co., 98

S.W.3d 786, 787 (Tex. App.—Corpus Christi 2003, no pet.); Argonaut Sw. Ins. Co.

v. Walker, 64 S.W.3d 654, 657 (Tex. App.—Texarkana 2001, pet. denied). On

appeal, Wiley does not challenge American Zurich’s filing of a plea to the

jurisdiction as the appropriate vehicle for American Zurich to challenge the

timeliness of his filing. Thus, we review the trial court’s order as a jurisdictional

plea.

B.      Analysis

        Wiley had forty-five days to seek judicial review of the decision denying

him death-beneficiary status. TEX. LAB. CODE ANN. § 410.252(a). Almost twenty-

one months passed between the Appeals Panel’s notice to Wiley that the decision

denying his death-beneficiary status was final and Wiley’s filing the underlying

state court lawsuit challenging American Zurich’s decision denying him death-

beneficiary status. Wiley argues that his filing claims against American Zurich in

federal court—claims that were dismissed more than a year before the underlying

state court proceeding was filed—somehow renders his state court suit timely.

Wiley cites no authority in support of that proposition, and we have located none.

Because Wiley did not comply with the forty-five day filing deadline in section

410.252(a), the trial court properly dismissed the suit. See DeVore, 2008 WL




                                         7
2611886, at *2 (holding that trial court was without jurisdiction over untimely filed

suit seeking judicial review of workers’ compensation decision).

                                 CONCLUSION

      We affirm the trial court’s judgment.




                                              Sherry Radack
                                              Chief Justice

Panel consists of Chief Justice Radack and Justices Bland and Huddle.




                                          8
