Court of Appeals of Texas, Dallas.

Andre WILLIAMS Sr., Appellant

v.

RICHARDSON INDEPENDENT SCHOOL DISTRICT, Self-Insured, Appellee

No. 05-24-00814-CV

|

Opinion Filed July 8, 2025

On Appeal from the 191st Judicial District Court, Dallas County, Texas, Trial Court Cause No. DC-23-04745, Honorable Gena Slaughter, Judge

Attorneys &Firms

Peter L. Macaulay, for Appellee.

Andre W. Williams Sr., Pro Se.

Before Justices Garcia, Breedlove, and Jackson

MEMORANDUM OPINION

Opinion by Justice Jackson

*1 Affirm and Opinion Filed July 8, 2025

This case involves judicial review of a decision by an appeals panel of the Texas Department of Insurance, Division of Workers’ Compensation (DWC). Andre Williams Sr., pro se, appeals the trial court’s no-evidence summary judgment in favor of Richardson Independent School District, a self-insured workers’ compensation carrier. In four issues, Williams contends the trial court erred in granting summary judgment because he presented evidence raising fact issues and because an adequate time for discovery had not passed. We affirm the trial court’s judgment.

BACKGROUND

RISD employed Williams as a school bus driver. In February 2021, Williams was injured on the job. He filed a claim for workers’ compensation benefits. RISD paid Williams temporary income benefits, but a dispute arose over whether RISD was entitled to decrease his average weekly wage (AWW) to more accurately reflect the wages Williams reasonably could have expected to earn during certain time periods in 2021 and 2022. See 28 TEX. ADMIN. CODE § 128.7(d) (AWW for school district employees).

The parties attended a benefit review conference but were unable to reach an agreement. Next, an Administrative Law Judge held a contested case hearing and issued a written decision.¹ Evidence before the ALJ showed Williams worked 177 duty days per regular school year. Other days are termed “nonduty days.” There is no school on nonduty days, and generally no bus service is needed. The ALJ found the time periods in dispute included nonduty days and Williams failed to meet his burden to prove he had a reasonable expectation for earning wages on those days. The judge determined RISD was entitled to adjust Williams’s AWW for the dates in dispute. Williams appealed the ALJ’s decision to a DWC appeals panel, and the panel affirmed.

Williams challenged the appeals panel decision by filing a petition for judicial review in the trial court. See TEX. LAB. CODE ANN. § 410.301. When the dispute involves compensability or eligibility for or the amount of income benefits, the trial court reviews the decision under a modified de novo standard of review. Rodriguez v. Serv. Lloyds Ins. Co., 997 S.W.2d 248, 253 (Tex. 1999); Davis v. Tex. Mut. Ins. Co., 443 S.W.3d 260, 266 (Tex. App.—Dallas 2014, pet. denied); see TEX. LAB. CODE ANN. § 410.301(a). Trial is limited to the issues decided by the appeals panel and on which judicial review is sought. TEX. LAB. CODE ANN. § 410.302(b). Although informed of the appeals panel decision, the factfinder is not required to give it any particular weight. Texas Workers’ Comp. Comm’n v. Garcia, 893 S.W.2d 504, 515 (Tex. 1995); see TEX. LAB. CODE ANN. § 410.304. The factfinder independently decides the issues that were before the appeals panel. Pinkus v. Hartford Cas. Ins. Co., 487 S.W.3d 616, 619 (Tex. App.—Dallas 2015, pet. denied). The appealing party bears the burden of proof by a preponderance of the evidence. TEX. LAB. CODE ANN. § 401.303.

*2 Six months after Williams filed his petition for judicial review, RISD moved for a no-evidence summary judgment. RISD asserted an adequate time for discovery had passed as the DWC dispute resolution process ensured that all evidence had been developed and exchanged prior to the contested case hearing. RISD argued Williams had no evidence that any of the dates in dispute are days that he would have earned wages. Williams filed a response and an appendix of exhibits. The trial court granted RISD’s motion.

STANDARD OF REVIEW

We review the granting of a motion for summary judgment de novo. Merriman v. XTO Energy, Inc., 407 S.W.3d 244, 248 (Tex. 2013). A no-evidence motion for summary judgment is essentially a motion for a pretrial directed verdict. Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 581 (Tex. 2006). After adequate time for discovery, a party may move for summary judgment on the ground that there is no evidence of one or more essential elements of the nonmovant’s claim upon which the nonmovant would have the burden of proof at trial. TEX. R. CIV. P. 166a(i). The burden is on the nonmovant to present enough evidence raising a genuine fact issue entitling the nonmovant to trial. Mack Trucks, 206 S.W.3d at 582. The court must grant the motion unless the nonmovant produces summary judgment evidence raising a genuine issue of material fact. TEX. R. CIV. P. 166a(i). When the summary judgment evidence offered to prove a vital fact is so weak as to do no more than create a mere surmise or suspicion of its existence, the evidence is no more than a scintilla and, in legal effect, is no evidence. Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 601 (Tex. 2004).

DISCUSSION

In his first three issues, Williams contends he raised genuine issues of material fact about whether he could reasonably have expected to earn wages on the following dates: July 4, 2021; November 22 through 26, 2021; December 18 through 31, 2021; and June 1 through August 10, 2022.

July 4, 2021. To show there is a fact issue about this date, Williams relies on one page from the ALJ’s decision that summarizes testimony from the contested case hearing. RISD’s assistant director of transportation testified the City of Richardson asked RISD to provide bus drivers to take people to Fourth of July festivities. RISD requested 48 drivers for the event. Williams argues he would have been one of the drivers had he not been injured. But Williams did not provide any evidence in support of that proposition. Speculation and conjecture will not suffice to preclude a no-evidence summary judgment. Salinas v. AT&T Servs., Inc., No. 05-13-01436-CV, 2014 WL 7248086, at *3 (Tex. App.—Dallas Dec. 22, 2014, no pet.) (mem. op.).

November 22 through 26, 2021, and December 18 through December 31, 2021. RISD’s Thanksgiving and winter breaks fell on these dates. Although there was no school, Williams argues he could have reasonably expected to earn wages driving RISD athletes to basketball games. His summary judgment evidence included 2021 RISD basketball schedules and the affidavit of a parent of an RISD athlete who said regular school bus drivers transport student athletes to away games, even over holiday breaks. The RISD assistant director of transportation testified before the ALJ, however, that there is no work for regular bus drivers over Thanksgiving and winter breaks. When there is a game over a break, the coach usually drives the bus. While there is conflicting evidence about whether coaches or bus drivers transport basketball players to games over school breaks, there is no evidence Williams ever drove and would have driven student athletes over school breaks. Williams did not present evidence to raise a fact issue about whether he could reasonably have expected to earn wages on the disputed dates had he not been injured.

*3 June 1 through August 10, 2022. Williams contends there are fact issues about whether RISD was entitled to adjust his AWW during the summer of 2022. Williams did not transport students during the summer. Instead he provided safety instruction to other bus drivers, and his hours varied on those days. Williams argues he could have expected to earn wages training other bus drivers that summer.

Williams’s complaint about the summer of 2022 is essentially a challenge to the calculation of his temporary income benefit. His summary judgment evidence includes a spreadsheet that purports to show the payments RISD made to him after his injury through June 2022. The document shows he was paid for dates of service in June 2022. Williams notes a significant decrease in the amount he received for June 2022 as compared to the previous summer. But the disputed issue before the DWC was whether RISD was entitled to adjust Williams’s AWW between June 1 and August 10 of 2022. The amount by which RISD adjusted the income benefit was not an issue before the DWC and therefore not an issue before the trial court.² See Pinkus, 487 S.W.3d at 619.

In the contested case hearing, RISD provided evidence the disputed dates during the summer of 2022 included nonduty days. For example, RISD’s director of risk management testified there was no regular or summer school from June 1 through 5 or June 27 through July 10. Williams has not challenged or raised a fact issue about the existence of nonduty days in the summer and therefore did not raise a fact issue about whether RISD was entitled to adjust his AWW during the summer of 2022. We overrule issues one through three.

In his fourth issue, Williams contends the trial court erred in granting summary judgment because he did not have adequate time for discovery as required by Rule 166a(i). See TEX. R. CIV. P. 166a(i). When a party contends he did not have an adequate opportunity for discovery before a summary judgment hearing, he must file either an affidavit explaining the need for further discovery or a verified motion for continuance. Tenneco, Inc. v. Enterprise Prods. Co., 925 S.W.2d 640, 647 (Tex. 1996). Although he argued in his summary judgment response that discovery was incomplete, Williams did not file an affidavit explaining the need for further discovery or a verified motion for continuance. Williams did not show there was inadequate time for discovery. We overrule his fourth issue.

We affirm the trial court’s judgment.