Dr. Eric Vanderwerff, D.C. v. Texas Department of Insurance - Division of Workers' Compensation, DWC, and DWC Commissioner Jeff Nelson in His Official Capacity

ACCEPTED
15-25-00026-CV
FIFTEENTH COURT OF APPEALS
AUSTIN, TEXAS
9/10/2025 4:03 PM
No. 15-25-00026-CV CHRISTOPHER A. PRINE
CLERK
FILED IN
In the Fifteenth District Court of Appeals, Austin, TexasOF APPEALS
15th COURT
AUSTIN, TEXAS
9/10/2025 4:03:55 PM

DR. ERIC VANDERWERFF, D.C., CHRISTOPHER A. PRINE
Clerk
Appellant,
v.

TEXAS DEPARTMENT OF INSURANCE – DIVISION OF WORKERS’
COMPENSATION, DWC, AND DWC COMMISSIONER JEFF
NELSON, IN HIS OFFICIAL CAPACITY,
Appellees.

On Appeal from the 250th District Court of Travis County, Texas
The Honorable Karin Crump, Presiding

APPELLEES’ BRIEF

KEN PAXTON LAUREN MCGEE
Attorney General of Texas State Bar No. 24128835
Assistant Attorney General
BRENT WEBSTER Administrative Law Division
First Assistant Attorney General Office of the Attorney General of Texas
P.O. Box 12548, Capitol Station
RALPH MOLINA
Austin, Texas 78711-2548
Deputy First Assistant Attorney
Telephone: (512) 475-3203
General
Lauren.McGee@oag.texas.gov
AUSTIN KINGHORN ATTORNEY FOR APPELLEES TEXAS
Deputy Attorney General for Civil DEPARTMENT OF INSURANCE – DIVISION
Litigation OF WORKERS’ COMPENSATION, AND DWC
COMMISSIONER JEFF NELSON
ERNEST C. GARCIA
Chief, Administrative Law Division

September 10, 2025
IDENTITY OF PARTIES AND COUNSEL

Plaintiff/Appellant: Counsel:

Dr. Eric Vanderwerff, D.C. Bradley Dean McClellan
Law Office of Brad McClellan
2904 Bowman Avenue
Austin, Texas 78703

Defendants/Appellees: Counsel before the Appellate Court
and the Trial Court:

Texas Department of Insurance Lauren McGee
– Division of Workers’ State Bar No. 24128835
Compensation, and DWC Assistant Attorney General
Commissioner Jeff Nelson, in his Administrative Law Division
official capacity1 Office of the Attorney General of Texas
P.O. Box 12548, Capitol Station
Austin, Texas 78711-2548

Counsel before SOAH:

Andres Dura
State Bar No. 24079799
Tyrus Housh
State Bar No. 24101932
Division of Workers’ Compensation
Texas Department of Insurance
7551 Metro Center Drive, Suite 100,
MS-11
Austin, Texas 78744-1645

1This case was captioned by Dr. Vanderwerff, and listed Defendants as Texas
Department of Insurance-Division of Workers’ Compensation, DWC, and DWC
Commissioner Jeff Nelson, in his official capacity. Texas Department of Insurance-
Division of Workers’ Compensation and DWC are the same entity.

ii
REFERENCES TO THE RECORD AND ABBREVIATIONS

App. Br. [page] Dr. Vanderwerff ’s Appellate Brief

A.R. DWC [page] Administrative Record

Dr. Vanderwerff Dr. Eric Vanderwerff, D.C., Appellant

Appellees Collectively TDI-DWC and Commissioner
Jeff Nelson, in his official capacity

CDO Cease and Desist Order

C.R. [page] Clerk’s Record

Commissioner Commissioner of the Texas Division of
Insurance-Division of Workers’
Compensation

Commissioner’s Order Final Decision Order issued by
Commissioner Jeff Nelson on June 23, 2023

Final Judgment Final Judgment issued by Judge Karin
Crump on December 19, 2024

Pl. DC. Br. [page] Dr. Vanderwerff’s District Court Merits
Brief

SOAH State Office of Administrative Hearings

TBCE Texas Board of Chiropractic Examiners

TDI-DWC Texas Division of Insurance-Division of
Workers’ Compensation

Tr. [page]: [lines] Hearing Transcript (A.R. DWC 1554-1768)

TWCA Texas Workers’ Compensation Act

iii
TABLE OF CONTENTS

Identity of Parties and Counsel ................................................................ii

References to the Record and Abbreviations .......................................... iii

Table of Contents ..................................................................................... iv

Index of Authorities.................................................................................. vi

Statement of the Case .............................................................................. ix

Statement on Oral Argument ................................................................... x

Issues Presented........................................................................................ x

1. Whether the Appellees had jurisdiction to take disciplinary
action and seek administrative penalties against Dr.
Vanderwerff for violations of the Texas Workers’
Compensation Act (TWCA). .......................................................... x

2. Whether there was substantial evidence to support the
finding that Dr. Vanderwerff committed administrative
violations by treating patients, billing for services, and
completing work status reports for patients in the workers’
compensation system without a valid license, and violated
the Commissioner’s CDO. ............................................................. x

3. Whether the district court properly denied Dr.
Vanderwerff’s Uniform Declaratory Judgment Act (UDJA)
and ultra vires claims. .................................................................. x

Statement of Facts .................................................................................... 1

Standard of Review ................................................................................... 3

Summary of the Argument ....................................................................... 6

Argument ................................................................................................... 9

I. Appellees had jurisdiction to take disciplinary action and
seek administrative penalties against Dr. Vanderwerff for

iv
violations of the TWCA. ............................................................. 9

II. There is more than substantial evidence to support the
finding that Dr. Vanderwerff committed administrative
violations by billing and treating patients and by
submitting work status reports for patients in the
workers’ compensation system without a valid license and
the finding that he violated the Commissioner’s CDO. .......... 11

A. Dr. Vanderwerff did not have a valid chiropractic license from
October 1, 2020, through June 25, 2021. ..................................... 11

B. Paying the renewal fee plus the late fee does not retroactively
validate a license. ......................................................................... 13

C. Dr. Vanderwerff violated the TWCA and the CDO. ............... 15

III. The Court properly denied Dr. Vanderwerff’s UDJA and
ultra vires claims. .................................................................... 19

A. UDJA........................................................................................ 19

B. Ultra Vires Claim..................................................................... 23

Conclusion & Prayer ............................................................................... 23

Certificate of Compliance ........................................................................ 26

Certificate of Service ............................................................................... 27

v
INDEX OF AUTHORITIES

Cases

City of Brownsville v. Alvarado,
897 S.W.2d 750 (Tex. 1995) ................................................................... 6

City of El Paso v. Heinrich,
284 S.W.3d 366 (Tex. 2009) ................................................................. 23

City of El Paso v. Pub. Util. Comm’n,
883 S.W.2d 179 (Tex. 1994) ................................................................... 5

Davis v. Morath,
624 S.W.3d 215 (Tex. 2021) ................................................................... 6

Edinburg Consol. Indep. Sch. Dist. v. Esparza,
603 S.W.3d 468 (Tex. App.—Corpus Christi-Edinburg 2020, no
pet.) ..................................................................................................... 4, 6

Entergy Tex., Inc. v. Pub. Util Comm’n,
490 S.W.3d 224 (Tex. App.—Austin 2016, pet. denied) ........................ 6

Froemming v. Tex. St. Bd. of Dental Exam’rs,
380 S.W.3d 787 (Tex. App.—Austin 2012, no pet.) ........................... 4, 5

Garst v. Reagan,
No. 03-13-00243-CV, 2014 WL 902554 (Tex. App.—Austin, Mar
6, 2014, no pet.) (mem. op.) .................................................................. 21

Granek v. Tex. St. Bd. of Med. Exam’rs,
172 S.W.3d 761 (Tex. App.—Austin 2005, no pet.) ............................... 5

Hammack v. Pub. Util. Comm’n,
131 S.W.3d 713 (Tex. App.—Austin 2004, pet. denied) (internal
quotation marks omitted) ...................................................................... 4

McLane Co. v. Tex. Alcoholic Bev. Comm’n,
514 S.W.3d 871 (Tex. App.—Austin 2019, pet. denied) ...................... 20

N.E. Indep. Sch. Dist. v. Riou,
598 S.W.3d 243 (Tex. 2020) ............................................................... 3, 6

vi
Owens-Corning Fiberglass Corp. v. Malone, 972 S.W.2d 35, 43
(Tex. 1998) .............................................................................................. 6

Patel v. Tex. Dep’t of Licensing & Regulation,
469 S.W.3d 69 (Tex. 2015) ................................................................... 21

Peaster Indep. Sch. Dist. v. Glodfelty,
63 S.W.3d 1 (Tex. App.—Fort Worth 2001, no pet.) .............................. 4

Personal Care Prods., Inc. v. Smith,
578 S.W.3d 262 (Tex. App.—Austin 2019, no pet.) ............................... 5

Pierce v. Tex. Racing Comm’n,
212 S.W.3d 745 (Tex. App.—Austin 2006, pet. denied) ........................ 4

Tex. Dep’t of Protective & Regulatory Servs. v. Mega Child Care,
Inc.,
145 S.W.3d 170 (Tex. 2004) ................................................................... 4

Tex. Dep’t of State Health Servs. v. Balquinta,
429 S.W.3d 726 (Tex. App.—Austin 2014, pet dism’d)........................ 20

Tex. Health Facilities Comm’n v. Charter Med.—Dall.,
665 S.W.2d 446 (Tex. 1984) ............................................................... 4, 5

Statutes

Tex. Civ. Prac. & Rem. Code § 37.004(a) ................................................ 20

Tex. Gov’t Code § 2001.171 ..................................................................... 21

Tex. Lab. Code § 401.011(17) ................................................................ 1, 2

Tex. Lab. Code § 401.011(21)(A), (17) ........................................... 8, 10, 16

Tex. Lab. Code § 402.001 .................................................................... 7, 10

Tex. Lab. Code § 415.021(a) .................................................................... 19

Tex. Lab. Code § 415.0211(b), (c) .............................................................. 7

Tex. Lab. Code § 415.036 .......................................................................... 3

vii
Tex. Occ. Code § 116.003 ........................................................................... 1

Tex. Occ. Code § 201.354(d) .................................................................... 22

Tex. Occ. Code § 256.001 ......................................................................... 14

Tex. Occ. Code § 257.002(b)..................................................................... 14

Tex. Occ. Code § 801.303(a)..................................................................... 15

Other Authorities

Tex. Att’y Gen Op. No. GA-0064 (2003) .................................................. 11

Rules

22 Tex. Admin. Code § 72.14(a) ................................................................ 1

22 Tex. Admin. Code § 72.14(a), (e) .......................................................... 8

22 Tex. Admin. Code § 72.14(c) ................................................................. 1

22 Tex. Admin. Code § 72.14(e)................................................... 12, 13, 15

22 Tex. Admin. Code § 72.14(g)............................................................... 12

22 Tex. Admin. Code § 73.1(d), (f), (h) ...................................................... 1

22 Tex. Admin. Code § 74.14(a) .............................................................. 12

28 Tex. Admin. Code § 129.5 ............................................................... 2, 10

Tex. R. App. P. 38.1(g) ............................................................................... 1

viii
STATEMENT OF THE CASE

Nature of the Case: Dr. Vanderwerff filed a suit for judicial review
to appeal a Cease & Desist Order (CDO) issued
by TDI-DWC Commissioner Jeff Nelson
(Commissioner). The district court affirmed the
Commissioner’s Order. C.R. 4-9.

Trial Court: The Honorable Judge Karin Crump, sitting in
the 250th Judicial District Court, Travis
County, Texas.

Trial Court After a hearing on the merits, the Trial Court
Disposition: affirmed the Commissioner’s Order in a Final
Judgment dated December 19, 2024. C.R. 173-
74. Dr. Vanderwerff appealed the judgment. C.
R. 200-02.

ix
STATEMENT ON ORAL ARGUMENT

Appellees do not request oral argument because they have

adequately presented the facts and legal arguments in their brief.

However, Appellees request an opportunity to participate if oral

argument is set by the Court.

ISSUES PRESENTED

1. Whether the Appellees had jurisdiction to take disciplinary action

and seek administrative penalties against Dr. Vanderwerff for violations

of the Texas Workers’ Compensation Act (TWCA).

2. Whether there was substantial evidence to support the finding that

Dr. Vanderwerff committed administrative violations by treating

patients, billing for services, and completing work status reports for

patients in the workers’ compensation system without a valid license,

and violated the Commissioner’s CDO.

3. Whether the district court properly denied Dr. Vanderwerff’s

Uniform Declaratory Judgment Act (UDJA) and ultra vires claims.

x
STATEMENT OF FACTS

Appellees object to Dr. Vanderwerff’s Statement of Facts to the

extent it contains copious impermissible arguments in violation of the

Texas Rules of Appellate Procedure 38.1(g). Tex. R. App. P. 38.1(g). The

Appellees submit the following Statement of Facts, which more

accurately and clearly sets out the facts at issue in this case.

The Texas Workers’ Compensation Act (TWCA) requires treating

doctors to be licensed by the board of the area they practice. Tex. Lab.

Code § 401.011(17). Chiropractors must be licensed by the Texas Board

of Chiropractic Examiners (TBCE) to treat patients in the workers’

compensation system. Id. The TBCE requires licensees to renew their

chiropractic license every two years. 22 Tex. Admin. Code § 72.14(a). The

renewal process requires submitting a renewal form and licensing fee to

TBCE and completing continuing education courses and required

training on human trafficking. Tex. Occ. Code § 116.003; 22 Tex. Admin.

Code § 73.1(d), (f), (h); 22 Tex. Admin. Code § 72.14(c); Tr. 01581:25-

01582:5.

Dr. Eric Vanderwerff, D.C. (Dr. Vanderwerff), is a chiropractor

licensed by the TBCE. A.R. DWC 01200. His chiropractic license expired
on October 1, 2020, and was not renewed until June 25, 2021. A.R. DWC

01201 (“Effective Date: June 25, 2021”); A.R. DWC 02817, Tr. 01584:22-

01585:3. From October 1, 2020, until June 25, 2021, Dr. Vanderwerff

continued to provide care to workers’ compensation patients, bill those

patients, and submit work status reports in violation of the TWCA. A.R.

DWC 01280-01294; Tex. Lab. Code § 401.011(17); 28 Tex. Admin. Code §

129.5.

The Commissioner of Texas Division of Insurance-Division of

Workers’ Compensation (TDI-DWC) signed a cease and desist order

(CDO) on December 21, 2020, ordering Dr. Vanderwerff to cease and

desist from “[p]roviding health care services in the Texas workers’

compensation system, including serving as a treating doctor, until he

notifies DWC that the Texas Board of Chiropractic Examiners has

allowed him to practice chiropractic medicine.” A.R. DWC 01193-01196.

Nonetheless, Dr. Vanderwerff continued to provide and bill for

chiropractic services for patients in the workers’ compensation system

despite having an expired chiropractic license and despite a cease and

desist order enjoining him from doing so. A.R. DWC 00352, 02117.

Because Dr. Vanderwerff ignored and violated the cease and desist

APPELLEES’ BRIEF
Case No. 15-25-00026-CV Page 2 of 27
order, TDI-DWC filed a complaint with the State Office of Administrative

Hearings (SOAH) on May 10, 2021, seeking administrative penalties

allowed by Texas Labor Code section 415.021(a). A.R. DWC 03066. After

notice and hearing, TDI-DWC adopted the final Proposal for Decision

assessing a total of $12,000 in penalties against Dr. Vanderwerff: $10,000

for violating the TWCA and $2,000 for violating the cease and desist

order. Id. Dr. Vanderwerff appealed this decision in a suit for judicial

review to the Travis County District Court, which affirmed the agency’s

decision. C.R. 4-9. Dr. Vanderwerff has now appealed to this Court. C.R.

200-02.

STANDARD OF REVIEW

The standard of review for the appeal of a commissioner order is

substantial evidence. Tex. Lab. Code § 415.036. As the Texas Supreme

Court recognizes, substantial evidence review is a “limited” review that

is “highly deferential” to the agency’s decision. N.E. Indep. Sch. Dist. v.

Riou, 598 S.W.3d 243, 251 (Tex. 2020). This court must presume the

Commissioner’s decision is supported by substantial evidence. Dr.

Vanderwerff, as the party appealing it, has the burden to prove

otherwise. Froemming v. Tex. St. Bd. of Dental Exam’rs, 380 S.W.3d 787,

APPELLEES’ BRIEF
Case No. 15-25-00026-CV Page 3 of 27
791 (Tex. App.—Austin 2012, no pet.) (citing Tex. Health Facilities

Comm’n v. Charter Med.—Dall., 665 S.W.2d 446, 452 (Tex. 1984)). And a

reviewing court may not substitute its judgment for that of the agency on

questions committed to the agency’s discretion. Tex. Dep’t of Protective &

Regulatory Servs. v. Mega Child Care, Inc., 145 S.W.3d 170, 197 (Tex.

2004); Pierce v. Tex. Racing Comm’n, 212 S.W.3d 745, 751 (Tex. App.—

Austin 2006, pet. denied). The term “substantial evidence” can be

something of a misnomer in the context of an administrative appeal, in

that “substantial” evidence “does not mean a large or considerable

amount of evidence, but rather such relevant evidence as a reasonable

mind might accept as adequate to support a conclusion.” Edinburg

Consol. Indep. Sch. Dist. v. Esparza, 603 S.W.3d 468, 478 (Tex. App.—

Corpus Christi-Edinburg 2020, no pet.) (quoting Hammack v. Pub. Util.

Comm’n, 131 S.W.3d 713, 725 (Tex. App.—Austin 2004, pet. denied)

(internal quotation marks omitted)). “Substantial evidence” is a “term of

art in the area of review of administrative decisions,” asking whether “the

record demonstrates a reasonable basis” for the agency’s decision. Peaster

Indep. Sch. Dist. v. Glodfelty, 63 S.W.3d 1, 5 (Tex. App.—Fort Worth

2001, no pet.); Riou, 598 S.W.3d at 251.

APPELLEES’ BRIEF
Case No. 15-25-00026-CV Page 4 of 27
Under the substantial evidence standard, “the test is not

whether…the [Commissioner] reached the correct conclusion, but

whether the agency’s factual findings are reasonable ‘in light of evidence

from which they are purportedly inferred.” Froemming, 380 S.W.3d at

790 (citing Granek v. Tex. St. Bd. of Med. Exam’rs, 172 S.W.3d 761, 778

(Tex. App.—Austin 2005, no pet.)). Therefore, the substantial evidence

standard requires only “more than a scintilla” of evidence to affirm an

agency’s decision. Personal Care Prods., Inc. v. Smith, 578 S.W.3d 262,

266 (Tex. App.—Austin 2019, no pet.).

Further, if the evidence is that reasonable minds could have

reached the conclusion that was adopted by the Commissioner, it must

be affirmed. City of El Paso v. Pub. Util. Comm’n, 883 S.W.2d 179, 186

(Tex. 1994); Charter Med.—Dall., 665 S.W.2d at 453. Likewise, if the

evidence would support either affirmative or negative findings on a

specific matter, a reviewing court must uphold an agency’s decision.

Charter Med.—Dall, Inc., 665 S.W.2d at 453. And significantly, “[a]

reviewing court is not bound by the reasons given in an agency order,

provided there is a valid basis for the action taken by the agency.”

Entergy Tex., Inc. v. Pub. Util Comm’n, 490 S.W.3d 224, 228 (Tex. App.—

APPELLEES’ BRIEF
Case No. 15-25-00026-CV Page 5 of 27
Austin 2016, pet. denied).

“If, based on the evidence as a whole, reasonable minds could have

reached the same conclusion as the [Commissioner], then [the

Commissioner’s] decision is supported by substantial evidence.”

Edinburg, 603 S.W.3d at 478. If the Commissioner’s decision is

“reasonable,” it satisfies the substantial evidence standard. Riou, 598

S.W.3d at 251.

Questions of law are reviewed de novo. Davis v. Morath, 624 S.W.3d

215, 221 (Tex. 2021).

The standard of review for whether a district court erred in denying

Dr. Vanderwerff’s claims for ultra vires action and declaratory judgment

under the UDJA is abuse of discretion. “A trial court abuses its discretion

when it rules ‘without regard for any guiding rules or principles.’” Owens-

Corning Fiberglass Corp. v. Malone,

972 S.W.2d 35 (Tex. 1998) (citing City of Brownsville v. Alvarado, 897

S.W.2d 750, 754 (Tex. 1995)).

SUMMARY OF THE ARGUMENT

Appellees object to Dr. Vanderwerff’s attempt to challenge the cease

and desist order now. App. Br. 18, 22, 27. An individual subject to a CDO

APPELLEES’ BRIEF
Case No. 15-25-00026-CV Page 6 of 27
has 30 days after receiving the order to request a hearing contesting the

order. Tex. Lab. Code § 415.0211(b), (c). The CDO was signed on

December 21, 2020. A.R. DWC 01193. Dr. Vanderwerff received the CDO

via certified mail on December 28, 2020. A.R. DWC 01322, 01398. A

courtesy copy was provided to Dr. Vanderwerff’s counsel on December 22,

2020. A.R. DWC 01322. Dr. Vanderwerff received the cease and desist

order almost five years ago. Attempting to challenge it years later is

improper, and Appellees ask the Court not to consider Dr. Vanderwerff’s

arguments on the CDO.

Dr. Vanderwerff misrepresents the issues in this case. Appellees

have never taken or attempted to take enforcement action against Dr.

Vanderwerff’s chiropractic license, which is under the jurisdiction of the

TBCE. Appellees took enforcement action in the form of a CDO and

sought administrative penalties against Dr. Vanderwerff for violations of

the TWCA, which Appellees are statutorily charged with enforcing. Tex.

Lab. Code § 402.001.

There is more than substantial evidence to support the

Commissioner’s decision. The TWCA requires treating doctors, such as

Dr. Vanderwerff, to be licensed in the field they practice. Tex. Lab. Code

APPELLEES’ BRIEF
Case No. 15-25-00026-CV Page 7 of 27
§ 401.011(21)(A), (17). If a treating doctor does not hold a valid, current

license, the doctor cannot treat patients in the workers’ compensation

system. Id. Dr. Vanderwerff disregarded this requirement and treated

patients in the workers’ compensation system while his license was

expired. A.R. DWC 00352, 02117.

Appellees did not make any determination as to the validity or

invalidity of Dr. Vanderwerff’s license because, as he points out, that is

under the exclusive jurisdiction of TBCE. TDI-DWC relied on the TBCE,

which, through rule 22 Texas Administrative Code section 72.14,

determined that licensees who fail to renew their license every two years

on or before the first day of their birth month shall be considered by the

Board as practicing without a license.” 22 Tex. Admin. Code § 72.14(a),

(e). The fact that Dr. Vanderwerff eventually completed the renewal

requirements and paid the fee does not make his license effective

retroactively.

Dr. Vanderwerff’s actions between October 1, 2020, and June 25,

2021, while his license was expired, violated the TWCA, and the

Appellees had the authority to take enforcement action.

APPELLEES’ BRIEF
Case No. 15-25-00026-CV Page 8 of 27
ARGUMENT

Dr. Vanderwerff’s brief is poorly organized and contains redundant

arguments. Appellees are responding in the most organized manner

possible to what they believe are the arguments brought by Dr.

Vanderwerff.

I. Appellees had jurisdiction to take disciplinary action and
seek administrative penalties against Dr. Vanderwerff for
violations of the TWCA.

Dr. Vanderwerff argues Appellees “acted without any jurisdiction

and exceeded their statutory authority in pursuing and enforcing

processional licensure matters against [Dr. Vanderwerff].” App. Br. 19.

He repeatedly points out that TBCE has exclusive jurisdiction over

chiropractic licenses and disciplinary actions taken to enforce licensure

requirements. This argument is unfounded as Appellees did not pursue

or enforce any professional licensure matter against Dr. Vanderwerff.

Appellees agree that TBCE is solely responsible for the licensure of

chiropractors, which includes disciplinary actions taken for license

violations. Appellees’ authority to issue a CDO and seek administrative

penalties against Dr. Vanderwerff comes from the TWCA, which

Appellees are statutorily mandated to administer. Tex. Lab. Code §

APPELLEES’ BRIEF
Case No. 15-25-00026-CV Page 9 of 27
402.001.

The TWCA requires medical professionals treating patients in the

workers’ compensation system to be licensed by the board that oversees

their profession. See Tex. Lab. Code § 401.011(21)(A), (17). It is a

violation of the TWCA for a medical professional to treat a patient in the

workers’ compensation system without a valid license. Id.

As explained in detail below in Section IIA, Dr. Vanderwerff’s

chiropractic license expired on October 1, 2020, and he did not complete

the renewal process until June 25, 2021. A.R. DWC 1201, A.R. DWC

02817, Tr. 01584:22-01585:3. Despite not having a valid chiropractic

license, Dr. Vanderwerff continued to bill, treat patients, and submit

work status reports for patients in the workers’ compensation system in

violation of the TWCA. A.R. DWC 01280-01294; Tex. Lab. Code §

401.011(21)(A), (17); 28 Tex. Admin. Code § 129.5.

Pursuant to the authority granted in Texas Labor Code section

415.0211, DWC issued an ex parte emergency CDO demanding Dr.

Vanderwerff stop treating patients in the workers’ compensation system

until his license is valid. A.R. DWC 01193-01196. The CDO was signed

on December 21, 2020. Id. Dr. Vanderwerff continued to bill and treat

APPELLEES’ BRIEF
Case No. 15-25-00026-CV Page 10 of 27
patients and to submit work status reports for patients in the workers’

compensation system even after he received the CDO.

Appellees’ authority to take action under TWCA is in no way related

to the licensing authority the TBCE has under the Texas Occupations

Code. Appellees can enforce violations of the TWCA regardless of what

actions the TBCE may or may not take against a licensee. See Tex. Att’y

Gen Op. No. GA-0064 (2003).

The redundant argument that Appellees lacked jurisdiction to take

action against Dr. Vanderwerff’s license is misplaced because Appellees

did not take action against his license. Appellees took action against his

violations of the TWCA over which they have jurisdiction.

II. There is more than substantial evidence to support the
finding that Dr. Vanderwerff committed administrative
violations by billing and treating patients and by
submitting work status reports for patients in the workers’
compensation system without a valid license and the
finding that he violated the Commissioner’s CDO.

A. Dr. Vanderwerff did not have a valid chiropractic license
from October 1, 2020, through June 25, 2021.

Dr. Vanderwerff repeatedly argues that “under the law and TBCE

rules he was authorized to practice and that his full two-year license term

was successfully renewed during the first year of his two-year license in

APPELLEES’ BRIEF
Case No. 15-25-00026-CV Page 11 of 27
compliance with the express statutory terms, with payment covering the

entire two year period.” App. Br. 18-19. This argument does not align

with the law.

TBCE rule section 72.14(a) states, “[a] licensee shall renew a license

every two years on or before the first day of the licensee’s birth month.”

22 Tex. Admin. Code § 74.14(a). Section 72.14(e) goes on to specify “[a]

licensee who fails to renew a license under subsection (a) of this section

shall be considered by the Board as practicing without a license and

subject to disciplinary action.” 22 Tex. Admin. Code § 72.14(e).

TBCE rules allow a licensee to renew his or her license within one

year after expiration by complying with all renewal requirements and

paying a late fee. 22 Tex. Admin. Code § 72.14(g). Dr. Vanderwerff’s

chiropractic license expired on October 1, 2020. Tr. 01584:15-21; A.R.

DWC 03067 at 9. Dr. Vanderwerff did not complete the continuing

education requirements required for license renewal until January 2021

and did not complete the human trafficking course required by Texas

Occupations Code section 116.003 until June 2021. A.R. DWC 01230;

A.R. DWC 01371.2 The required renewal fee and late fee were paid on

2 Dr. Vanderwerff completed two CLE courses in January 2021. Credits from those

APPELLEES’ BRIEF
Case No. 15-25-00026-CV Page 12 of 27
June 25, 2021. Dr. Vanderwerff did not complete all requirements to

renew his chiropractic license until June 25, 2021. Id.

According to TBCE’s rule, because Dr. Vanderwerff did not

complete all renewal requirements by October 1, 2020, his license expired

on that date, and he was considered by TBCE to be practicing without a

license. 22 Tex. Admin. Code § 72.14(e).

B. Paying the renewal fee plus the late fee does not
retroactively validate a license.

Dr. Vanderwerff argues that the Texas Legislature provided

chiropractors a grace period that allows them to continue practicing so

long as they pay the renewal fee and late fee within the first year after

the license expires. App. Br. 17, 19. This is incorrect.

The purpose of licensing medical professionals is to ensure those

who treat patients have a minimum level of education, training, and skill,

and to ensure there is a mechanism to hold professionals accountable if

they cease to meet professional standards. Allowing a medical

professional to practice without a valid license during a “grace period”

puts the public at risk for several reasons. First, medical professionals

courses were applied to the previous year’s deficit. Tr. 01587:11-01588:7.
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Case No. 15-25-00026-CV Page 13 of 27
who intend to renew their licenses could change their minds during the

one-year “grace period” and decide not to renew their licenses. This

results in an unlicensed medical professional treating patients.

Second, license renewal is one mechanism by which state

regulatory agencies, such as TBCE, protect the public. Administration of

a license renewal process helps an agency enforce standards and respond

to violations of those standards.

Dr. Vanderwerff’s argument that practicing with an expired license

is common practice among licensed professions is untrue. App. Br. 20.

Dentists licensed by the State Board of Dental Examiners must have a

current license to practice. Tex. Occ. Code § 256.001. Texas Occupations

Code section 257.002(b) states, “[a] person who is otherwise eligible to

renew a license may renew an unexpired license by paying the required

renewal fee to the board before the expiration date of the license. A

person whose license has expired may not engage in activities that

require a license until the license has been renewed.” Tex. Occ. Code §

257.002(b). A Doctor of Veterinary Medicine licensed by the State Board

of Veterinary Medical Examiners whose license has expired is similarly

prohibited from engaging in activities requiring that license until it is

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Case No. 15-25-00026-CV Page 14 of 27
renewed. Tex. Occ. Code § 801.303(a). Most importantly, TBCE’s own

rules explicitly state “[a] licensee who fails to renew a license under

subsection (a) of this section shall be considered by the Board as

practicing without a license and subject to disciplinary action.” 22 Tex.

Admin. Code § 72.14(e).

Dr. Vanderwerff paid the fee for the entire two-year renewal period

plus a late fee; however, that did not change the fact that when he

practiced chiropractic medicine between October 1, 2020, and June 25,

2021, his license was not valid. As such, he could not treat patients in the

workers’ compensation system during that time.

Appellees have not taken action against Dr. Vanderwerff for the

treatment of his patients who were not part of the workers’ compensation

system, though it is clear that treatment violated TBCE rules. Id.

Appellees only acted under the authority of the TWCA, which authorized

them to issue a CDO prohibiting Dr. Vanderwerff from treating patients

in the workers’ compensation system until TBCE allowed him to practice

chiropractic medicine.

C. Dr. Vanderwerff violated the TWCA and the CDO.

TWCA requires medical professionals treating patients in the

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Case No. 15-25-00026-CV Page 15 of 27
workers’ compensation system to be licensed by the board that oversees

their field of practice. Tex. Lab. Code § 401.011(21)(A), (17). As explained

above in Section IIA, Dr. Vanderwerff’s chiropractic license expired on

October 1, 2020, and was not renewed until June 25, 2021. Tr. 01584:15-

21; A.R. DWC 03067 at 9. Between October 1, 2020, and December 2020,

he treated 24 patients in the workers’ compensation system, signed and

filed work status reports, and submitted medical bills for care he was not

authorized to provide. A.R. DWC 01280-01294; A.R. DWC 00472, 00501,

00997, 01247, 01342, 01343.

Pursuant to the authority granted by Texas Labor Code section

415.0211, the Commissioner issued an ex parte cease and desist order

requiring that Dr. Vanderwerff “immediately cease and desist from the

following: providing health care services in the Texas workers’

compensation system, including serving as a treating doctor, until he

notifies DWC that the Texas Board of Chiropractic Examiners has

allowed him to practice chiropractic medicine.”3 A.R. DWC 11196.

The CDO was signed by Commissioner Brown on December 21,

3 Cassie Brown was DWC Commissioner at the time the CDO was issued in 2020. Jeff

Nelson is the current DWC Commissioner.
APPELLEES’ BRIEF
Case No. 15-25-00026-CV Page 16 of 27
2020, mailed to Dr. Vanderwerff via Certified Mail Return Receipt

Requested on December 22, 2020, and delivered December 28, 2020. A.R.

DWC 01322, 01398. A courtesy copy of the CDO was also provided to Dr.

Vanderwerff’s attorney on December 22, 2020. A.R. DWC 01322.

Dr. Vanderwerff violated the CDO twice. First, he treated Patient

4 on February 4, 2021. A.R. DWC 00352. Second, he treated Patient 8 on

June 29, 2021. A.R. DWC 02117. While Dr. Vanderwerff’s license was

renewed on June 25, 2021, the CDO prohibited him from “[providing

health care services in the Texas workers’ compensation system,

including serving as a treating doctor, until he notifies DWC that the

Texas Board of Chiropractic Examiners has allowed him to practice

chiropractic medicine.” A.R. DWC 01196. As of June 29, 2021, Dr.

Vanderwerff had not notified DWC that TBCE allowed him to practice

chiropractic medicine. As such, he violated the CDO a second time.

Based on Dr. Vanderwerff’s failure to comply with the CDO, the

Appellees filed a complaint with SOAH seeking administrative penalties

as permitted by Texas Labor Code section 415.021(a). A.R. DWC 00002-

00011.

Sarah Matthews, Director of Licensing for TBCE, testified at the

APPELLEES’ BRIEF
Case No. 15-25-00026-CV Page 17 of 27
SOAH hearing. She testified that Dr. Vanderwerff’s 2018-2020

chiropractic license expired on October 1, 2020. Tr. 01584:15-21; A.R.

DWC 03067 at 9. After October 1, 2020, Dr. Vanderwerff did not have a

valid chiropractic license and could not practice chiropractic medicine in

Texas. Tr. 01584:22-01585:3. Ms. Matthews testified that Dr.

Vanderwerff did not renew his license until June 25, 2021, which is when

his license became valid again. Tr. 01596:2-14; A.R. DWC 03070 at 33.

From October 1, 2020, through December 21, 2020, Dr. Vanderwerff

provided care to 24 patients in the workers’ compensation system on 262

separate occasions. A.R. DWC 03068 at 12. Between October 1, 2020,

through June 25, 2021, Dr. Vanderwerff billed $121,314.89 for

chiropractic services provided to workers’ compensation patients. A.R.

DWC 02869-02883; A.R. DWC 00305. Completing a work status report

without a valid license can affect the income benefits an injured worker

receives. Tr. 01657:15-01658:6; A.R. DWC 03068 at 17.

There is more than substantial evidence to show that Dr.

Vanderwerff violated the TWCA by treating patients and by billing and

submitting work status reports for patients in the workers’ compensation

system without a valid license. As such, Appellees had statutory

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Case No. 15-25-00026-CV Page 18 of 27
authority to impose administrative penalties. Tex. Lab. Code §

415.021(a).

III. The Court properly denied Dr. Vanderwerff’s UDJA and
ultra vires claims.

Dr. Vanderwerff’s claims, tacked onto a suit for judicial review in

an attempt to get attorney’s fees, were properly denied because they are

barred by sovereign immunity. Even if Dr. Vanderwerff could identify a

valid waiver of sovereign immunity for the UDJA and ultra vires claims,

which he cannot because none exists, the relief he seeks is barred by

sovereign immunity.

A. UDJA

It is unclear from his appellate brief what declarations Dr.

Vanderwerff is asking this Court to make. Appellees surmise the

declarations are the same as those sought at the district court level,

which include: (1) “TBCE cannot take any action because Dr.

Vanderwerff, within the one year grace period for two year license

renewal and neither can the DWC, and the Doctor did everything he

needed to do including paying the Legislature mandated only higher

renewal fee for up to one year for chiropractors who miss the pre-license

period deadline for whatever reason with even ‘good cause’ being needed”;

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Case No. 15-25-00026-CV Page 19 of 27
(2) “every chiropractor has the [sic] up to the end of the first year of their

two year licenses to renew the license with only an additional fee required

and not even good cause being needed”; and (3) “the DWC and the DWC

Commissioner who has acted ultra vires and without authority beyond

his jurisdiction along with DWC employees acting beyond their

jurisdiction, have no authority to restrict or attempt to inhibit

chiropractic treatment services of Doctor of Chiropractic Medicine or take

any action on the licensure matter which is exclusively assigned to

another state agency, the TBCE.” Pl. DC. Br. 12-13.

“The UDJA provides that ‘[a] person…whose rights, status, or other

legal relations are affected by a statute…may have determined any

question of construction or validity arising under the…statute…and

obtain a declaration of rights, status, or other legal relations

thereunder.’” McLane Co. v. Tex. Alcoholic Bev. Comm’n, 514 S.W.3d 871,

875 (Tex. App.—Austin 2019, pet. denied), Tex. Civ. Prac. & Rem. Code

§ 37.004(a). “Furthermore, ‘a litigant’s couching its requested relief in

terms of declaratory relief does not alter the underlying nature of the

suit.’” Tex. Dep’t of State Health Servs. v. Balquinta, 429 S.W.3d 726, 746

(Tex. App.—Austin 2014, pet dism’d). “Under the redundant remedies

APPELLEES’ BRIEF
Case No. 15-25-00026-CV Page 20 of 27
doctrine, courts will not entertain an action brought under the UDJA

when the same claim could be pursued through different channels.” Patel

v. Tex. Dep’t of Licensing & Regulation, 469 S.W.3d 69, 79 (Tex. 2015).

“Declaratory judgment [cannot be used] to settle disputes already

pending before the court.” Garst v. Reagan, No. 03-13-00243-CV, 2014

WL 902554, at *4 (Tex. App.—Austin, Mar 6, 2014, no pet.) (mem. op.).

Dr. Vanderwerff alleges Appellees acted ultra vires by acting

outside of their jurisdiction. This same issue was brought before SOAH,

and the ALJ determined there was sufficient evidence to find that Dr.

Vanderwerff violated the TWCA, and that administrative penalty was

proper. A.R. DWC 03063-03066. Dr. Vanderwerff is appealing the

Appellees’ decision in a suit for judicial review, which is the correct

mechanism for appealing an agency decision after a contested case. Tex.

Gov’t Code § 2001.171.

Claims brought by Dr. Vanderwerff under the UDJA are redundant

of those brought in the suit for judicial review and are barred by the

redundant remedies doctrine.

Dr. Vanderwerff’s first request for declaration involves DWC and

TBCE, who is not a party to this case. The court cannot make

APPELLEES’ BRIEF
Case No. 15-25-00026-CV Page 21 of 27
declarations regarding TBCE if it is not before the court to defend itself.

Additionally, the Texas Occupations Code states “[i]f a person’s license

has been expired for more than 90 days but less than one year, the person

may renew the license by paying to the board a renewal fee that is equal

to two times the renewal fee set by the board under Section 201.153(a).”

Tex. Occ. Code § 201.354(d). Section 201.153(a) already states that a

chiropractor whose license has been expired for less than a year can

renew the license by paying an increased fee. A declaration by the Court

would just be declaring what is already in the statute.

Dr. Vanderwerff’s second request for declaration that “every

chiropractor has the [sic] up to the end of the first year of their two year

licenses to renew the license with only an additional fee required and not

even good cause being needed” suffers from a similar flaw. The

declaration Dr. Vanderwerff is seeking is already codified in Texas

Occupations Code § 201.354(d).

Dr. Vanderwerff’s third request for declaration, that “[t]he DWC

and the DWC Commissioner who has acted ultra vires and without

authority beyond his jurisdiction along with DWC employees acting

beyond their jurisdiction, have no authority to restrict or attempt to

APPELLEES’ BRIEF
Case No. 15-25-00026-CV Page 22 of 27
inhibit chiropractic treatment services of Doctor of Chiropractic Medicine

or take any action on the licensure matter which is exclusively assigned

to another state agency, the TBCE” is barred by the redundant remedies

doctrine as the requested relief is one that, if successful, Dr. Vanderwerff

can obtain in the underlying suit for judicial review under the APA.

B. Ultra Vires Claim

Dr. Vanderwerff alleges Appellees acted ultra vires by asserting

chiropractic licensure authority reserved to the TBCE. App. Br. 46.

Ultra vires claims are an exception to sovereign immunity if the

complaining party can “allege, and ultimately prove, that the officer acted

without legal authority or failed to perform a purely ministerial act.” City

of El Paso v. Heinrich, 284 S.W.3d 366, 372 (Tex. 2009). As explained

above in Section (I), Appellees’ actions were authorized by the TWCA.

Appellees have not taken any actions under chiropractic licensure

authority.

CONCLUSION & PRAYER

Appellees Texas Department of Insurance-Division of Workers’

Compensation and DWC Commissioner Jeff Nelson, respectfully request

the Court to affirm the district court’s Final Judgment affirming the

APPELLEES’ BRIEF
Case No. 15-25-00026-CV Page 23 of 27
Commissioner’s Order issued to Dr. Vanderwerff because the CDO was

properly issued and is supported by substantial evidence. If the Court

determines that the CDO contained insufficient detail in its findings and

conclusions of law, the Appellees request that the Court remand the case

back to the agency for further proceedings, allowing the TDI-DWC to

correct its errors.

Appellees request such other and further relief to which they may

be justly entitled.

APPELLEES’ BRIEF
Case No. 15-25-00026-CV Page 24 of 27
Respectfully submitted,

KEN PAXTON
Attorney General of Texas

BRENT WEBSTER
First Assistant Attorney General

RALPH MOLINA
Deputy First Assistant Attorney General

AUSTIN KINGHORN
Deputy Attorney General for Civil
Litigation

ERNEST C. GARCIA
Chief, Administrative Law Division

/s/ Lauren E. McGee
LAUREN E. MCGEE
State Bar No. 24128835
Assistant Attorney General
Administrative Law Division
Office of the Attorney General of Texas
P.O. Box 12548, Capitol Station
Austin, Texas 78711-2548
Telephone: (512) 475-3203
Lauren.McGee@oag.texas.gov

ATTORNEY FOR APPELLEES TEXAS
DEPARTMENT OF INSURANCE – DIVISION
OF WORKERS’ COMPENSATION AND DWC
COMMISSIONER JEFF NELSON

APPELLEES’ BRIEF
Case No. 15-25-00026-CV Page 25 of 27
CERTIFICATE OF COMPLIANCE

I certify that the submitted brief complies with Rule 9 of the Texas
Rules of Appellate Procedure and the word count of this document is
4,478. The word processing software used to prepare this filing and
calculate the word count of the document is Microsoft Word for Office 365.

Date: September 10, 2025.

/s/ Lauren McGee
LAUREN MCGEE
Assistant Attorney General

APPELLEES’ BRIEF
Case No. 15-25-00026-CV Page 26 of 27
CERTIFICATE OF SERVICE

I hereby certify that on September 10, 2025, a true and correct copy
of the above and foregoing document has been served to the following
party of record via electronic service and/or electronic mail:

Bradley Dean McClellan
State Bar No. 13395980
Law Office of Brad McClellan
2904 Bowman Avenue
Austin, Texas 78703
Tel.: (512) 694-8843
Fax: (512) 564-4284
Brad.McClellan@yahoo.com

Attorney for Appellant

/s/ Lauren McGee
LAUREN MCGEE
Assistant Attorney General

APPELLEES’ BRIEF
Case No. 15-25-00026-CV Page 27 of 27
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.

Jennifer Foster on behalf of Lauren McGee
Bar No. 24128835
jennifer.foster@oag.texas.gov
Envelope ID: 105463651
Filing Code Description: Brief Not Requesting Oral Argument
Filing Description: TDIDWC Appellee Brief
Status as of 9/10/2025 4:38 PM CST

Associated Case Party: Eric Vanderwerff

Name BarNumber Email TimestampSubmitted Status

Brad McClellan brad.mcclellan@yahoo.com 9/10/2025 4:03:55 PM SENT

Case Contacts

Name BarNumber Email TimestampSubmitted Status

Jennifer Foster Jennifer.Foster@oag.texas.gov 9/10/2025 4:03:55 PM SENT

Associated Case Party: Texas Department of Insurance-Division of Workers
Compensation

Name BarNumber Email TimestampSubmitted Status

Lauren McGee lauren.mcgee@oag.texas.gov 9/10/2025 4:03:55 PM SENT