Article XVI, § 67(b)(2) of the Texas Constitution requires the Legislature to “establish by law an Employees
Retirement System of Texas to provide benefits for officers and employees of the state”. The Legislature has
done so in chapters 811-815 of the Texas Government Code. Section 811.003 provides that “[t]he retirement
system is a public entity.”

The Legislature granted ERS
exclusive jurisdiction of questions relating to “payment of a claim,” but ERS’s
subrogation suit seeks collection of a claim. When it pays claims, ERS holds the money and can require
claimants to come and get it through the agency’s administrative processes. But when ERS collects claims,
someone else holds the money and has no reason to join ERS’s administrative processes. That is why the first
thing ERS’s agent had to do was file suit in court.
The Legislature created ERS to attract and retain state employees by providing health, insurance, and
retirement benefits.7 The powers granted ERS appear in the Texas Employees Group Benefits Act.8 The Act
authorizes ERS to adopt a plan “reasonably necessary to implement this chapter and its purposes.”9 ERS
adopted a 70-page “Employee Benefit Plan” that included a subrogation provision on its penultimate page:

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)(
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.
Brister delivered the opinion of the Court, in which Chief Justice Jefferson, Justice O'Neill, Justice
Medina, Justice Green, and Justice Willett joined. [pdf]
Hecht delivered a dissenting opinion (arguing the court of appeals should have dismissed the appeal
for want of a
justiciable issue)
Wainwright delivered a dissenting opinion (favoring application of exclusive jurisdiction doctrine to  the
subrogation dispute), in which Justice Johnson joined.