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Title: 

Battarbee v. Transportation Ins. Co.

Date: 

December 9, 1999

Citation: 

05-97-02052-CV

Court: 

  • 5th COA – Dallas

Status: 

Unpublished Opinion

Table of Contents

  • Battarbee v. Transportation Ins. Co.

Court of Appeals of Texas, Dallas.

Larry BATTARBEE, Appellant,

v.

TRANSPORTATION INSURANCE COMPANY, Appellee.

No. 05-97-02052-CV.

|

Dec. 9, 1999.

Before OVARD, JAMES, and BRIDGES, JJ.

OPINION

BRIDGES.

*1 Larry Battarbee appeals the trial court’s dismissal of his petition seeking judicial review of a Texas Workers’ Compensation Appeals Panel decision. In a single point of error, Battarbee argues the trial court erred in dismissing his petition for want of jurisdiction. We reverse the trial court’s dismissal order and remand this cause for further proceedings.

The Texas Workers’ Compensation Appeals Panel filed its final decision in this case on June 16, 1994. Forty days later, as required by section 410.252(a) of the Texas Labor Code, Battarbee filed in the 101st District Court a petition seeking judicial review of the Appeals Panel’s decision. See Tex.Lab.Code Ann. § 410.252(a) (Vernon 1996). However, Battarbee did not mail a copy of the petition to the Texas Worker’s Compensation Commission until August 1, 1994. The trial court dismissed Battarbee’s petition for want of jurisdiction because it was not sent to the commission within forty days of the Appeals Panel’s decision.

A party seeking judicial review of a decision of the Appeals Panel must file suit not later than the fortieth day after the date on which the decision is filed. Tex.Lab.Code Ann. § 410.252(a) (Vernon 1996). The appealing party must file a copy of the petition with the appropriate court and with the commission. Tex.Lab.Code Ann. § 410.253 (Vernon 1996). However, the Supreme Court of Texas has held that compliance with section 410.253’s requirement that a copy of the petition be filed with the commission within the forty-day period is mandatory but not jurisdictional. Albertson’s, Inc. v. Sinclair, 984 S.W.2d 958, 960-61 (Tex.1999). Accordingly, the trial court erred in concluding that it lacked jurisdiction over this case because Battarbee’s petition was filed late. We sustain Battarbee’s sole point of error.

We reverse the trial court’s judgment and remand this cause for further proceedings.