Texas workers' compensation pays supplemental income benefits to workers with an impairment rating of 15% or more, but the Labor Code requires "active work search efforts documented by job applications submitted by the recipient" (Tex. Lab. Code § 408.1415(a)(3)). The Division's rule, 28 Tex. Admin. Code § 130.102(d)(1)(D), requires evidence only of "job applications," without the words "submitted by the recipient".¹

The Third Court of Appeals rejected Accident Fund and Texas Cotton Ginners' Trust's facial challenge to the rule (2023 WL 2286662, Feb. 28, 2023). The petitions were filed May 15, 2023, the Division responded October 6, 2023, and merits briefs were filed in 2024; the Court denied review February 7, 2025, together with No. 23-0950.

Petition for review from the Third Court of Appeals, denied with a concurring opinion.¹

Whether Rule 130.102(d)(1)(D) is invalid because it omits the statute's requirement that job applications be submitted by the recipient and reads "job application" too broadly, and whether the Division adopted an ad hoc rule through an appeals panel decision or its application form.¹

Accident Fund and the Trust (Petitioners): by dropping "submitted by the recipient" the rule lowers the bar the Legislature set, so nearly any inquiry, even a call asking whether a business is hiring, could qualify as a job application.¹

The Division (Respondent): it reasonably credits in-person and phone requests for work, "submitted by the recipient" can include the worker's agents, and its reading furthers the Act's goal of returning impaired workers to work.²

Not applicable⁠—the petition was denied.

None noted

Reasoning

Justice Young explained that a facial challenge requires showing the rule is inherently incompatible with the statute, and the parties offered no example of a case that would come out one way under the statute and another under the rule, so review would be of little benefit and might do harm. He would likely vote to grant a petition that challenges a specific award or shows the rule clearly mandates unlawful awards, and observed that agencies in Texas have never enjoyed Chevron-style deference, which the U.S. Supreme Court has now abandoned.¹

Disposition

Petition for review denied.

Vote Breakdown

Justice Young, joined by Justice Sullivan, concurred in the denial of both petitions.²