law-open-courts-provision, challenge | constitutional challenge | constitutionality
Finally, we must avoid constitutionally suspect constructions of the Act if we can.32 Relegating
common-law claims to administrative remedies implicates the Texas Constitution’s open-courts
provision.33 We have rejected open-courts complaints when a grant of exclusive jurisdiction
involved claims that did not exist at common law.34 But subrogation existed at common law long
before ERS was created.35 We decline to construe the Act to relegate subrogation defendants
to administrative procedures before ERS, especially when the claimant is ERS itself, and then
have judicial access limited to substantial-evidence review.36
ERS of Texas v. Duenez, No. 07-0410 (Tex. Jul 3, 2009)(petition dismissed)(Brister) (administrative law,
agency exclusive jurisdiction doctrine held not to apply to subrogation claim, which involves collection on a
claim rather than payment thereof)(DWOJ)
EMPLOYEES RETIREMENT SYSTEM OF TEXAS v. XAVIER DUENEZ AND IRENE DUENEZ;
from Calhoun County; 13th district (13-05-00729 CV, ___ SW3d ___, 04-05-07 Opinion below)
Pursuant to Texas Rule of Appellate Procedure 59.1, after granting the petition for review and without
hearing oral argument, the Court dismisses the petition for want of jurisdiction.
Justice Brister delivered the opinion of the Court, in which Chief Justice Jefferson, Justice O'Neill, Justice
Medina, Justice Green, and Justice Willett joined. [pdf]
Justice Hecht delivered a dissenting opinion (arguing the court of appeals should have dismissed the
appeal for want of a justiciable issue)
Justice Wainwright delivered a dissenting opinion (favoring application of exclusive jurisdiction doctrine to
the subrogation dispute), in which Justice Johnson joined.
View Electronic Briefs in Tex. 2009 No. 07-410 EMPLOYEES RETIREMENT SYSTEM OF TEXAS v.