`Chris Daniel - District Clerk Harris County
`Envelope No. 15787161
`By: ALEX CASARES
`Filed: 3/10/2017 9:55:34 AM
`
`IN THE DISTRICT COURT OF
`
`
`
`CAUSE NO. 2016-54849
`
`§
`§
`§
`§
`§
`
`ADAM VASQUEZ
`
`
`v.
`
`ELIZABETH ARTEAGA-MARTINEZ
`
`
`HARRIS COUNTY, TEXAS
`
`80th JUDICIAL DISTRICT
`
`
`OBJECTIONS AND MOTION FOR PROTECTIVE ORDER
`
`
`TO THE HONORABLE JUDGE OF SAID COURT:
`
`Non-party Texas Department of Insurance, Division of Worker’s Compensation
`
`(the Division) files this Motion for Protective Order and Objections to the subpoena
`
`attached as Exhibit A, and asks this Court to protect it from the attached subpoena, which
`
`commands it to appear and produce documents March 10, 2017 at 10:00 a.m..
`
`I.
`
`Objections to Subpoena
`
`On February 20, 2017, the Division received, via fax, the attached subpoena
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`commanding the production of documents pertaining to a worker’s compensation claim
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`brought by the Plaintiff in this case.
`
`A. Texas Labor Code
`
`Under the Labor Code, information in or derived from a claim file is confidential,
`
`and can only be disclosed by the Division through the procedures outlined in the Labor
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`Code. Tex. Lab. Code § 402.083(a). One of the procedures listed in the Labor Code allows
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`information on an open claim to be released to the employee if the employee requests the
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`release on a form prescribed by the Division, and the requestor provides all required
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`information. Tex. Lab. Code § 402.084 (a), (b)(2). The Division has provided this form
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`to the Plaintiff in this case, but has not received a completed request. Under the Labor
`
`
`
`Code, a person who releases information absent a specific authorization can be held
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`criminally liable for the release. Tex. Lab. Code § 402.091.
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`B. The Subpoena is not valid.
`
`The Labor Code contains additional exceptions to the confidentiality of the
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`information subject to the subpoena, and there is no exception for a lawfully issued
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`subpoena. See Tex. Lab. Code § 402.085. Even if such an exception did exist, it would not
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`apply here. The subpoena was faxed to the Division; it was not served in compliance with
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`Tex. R. Civ. P. 176.5(a). Nor was proof of service filed as required by Tex. R. Civ. P.
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`176.5(b). Further, there has been no proof of payment of the required fee as required by
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`Tex. R. Civ. P. 176.8 (b). Therefore, no valid subpoena has been issued to the Division.
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`II. Motion for Protective Order
`
`For the reasons explained in the objections to the subpoena listed above,
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`specifically that no valid subpoena was issued and the Labor Code prevents the release of
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`the information through subpoena, the Division asks this Court to enter an order
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`protecting it from being required to respond to the attached subpoena.
`
`Because the information responsive to the subpoena is confidential by law and the
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`statute requires strict compliance for release of records of an injured worker, the Division
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`prays that the protective order be granted and for all other relief to which is it entitled.
`
`Respectfully submitted,
`
`KEN PAXTON
`Attorney General of Texas
`
`JEFFREY C. MATEER
`First Assistant Attorney General
`
`BRANTLEY STARR
`Deputy First Assistant Attorney General
`
`
`
`
`
`
`Page 2 of 3
`
`
`
`JAMES E. DAVIS
`Deputy Attorney General for Civil Litigation
`
`NICHOLE BUNKER-HENDERSON
`Chief, Administrative Law Division
`
`
`/s/ Kimberly Fuchs
`KIMBERLY FUCHS
`State Bar No. 24044140
`Assistant Attorney General
`Administrative Law Division
`P.O. Box 12548, Capitol Station
`Austin, Texas 78711-2548
`Telephone:
`(512) 475-4195
`Facsimile:
`(512) 320-0167
`kimberly.fuchs@oag.texas.gov
`
`ATTORNEYS FOR NON-PARTY
`TDI-DWC
`
`
`
`
`
`
`
`CERTIFICATE OF SERVICE
`
`I hereby certify that a true and correct copy of the foregoing Non-Party’s Motion
`for Protective Order has been served, on March 10, 2017, on the following attorney-in-
`charge, by e-service and/or e-mail:
`
`
`Eric J. Kirkpatrick
`State Bar No. 24031215
`KIRKPATRICK LAW OFFICE, P.C.
`P.O. Box 27247
`Houston, TX 77227
`Telephone:
`(713) 893-0305
`Facsimile:
`(713) 583-2735
`Email: eric@erickirkpatricklawfirm.com
`
`ATTORNEY FOR PLAINTIFF
`
`
`Andrew M. Williams
`State Bar No. 21510835
`ANDREW M. WILLIAMS & ASSOCIATES
`5909 West Loop South, Suite 550
`Bellaire, Texas 77401
`Telephone:
`(713) 840-7321
`Facsimile:
`(713) 839-1302
`Email: andy@amwlawfirm.com
`
`ATTORNEY FOR DEFENDANT
`
`
`
`
`
`
`
`
`
`
`/s/ Kimberly Fuchs
`KIMBERLY FUCHS
`ATTORNEY FOR NON-PARTY
`TDI-DWC
`
`
`
`
`
`
`Page 3 of 3
`
`
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