Opinion
No. 05-09-00284-CV
Opinion Filed March 2, 2010.
On Appeal from the 95th Judicial District Court, Dallas County, Texas, Trial Court Cause No. 05-03051-D.
SUPPLEMENTAL OPINION ON MOTION FOR REHEARING
Appellant Bettie Bell has filed a motion for rehearing containing three issues. For the reasons stated herein, we deny appellant's motion for rehearing.
In the second issue of her motion for rehearing, appellant asserts this Court lacks jurisdiction over this appeal. Appellate jurisdiction is fundamental and can be raised at any time during the appeal. See Tullos v. Eaton Corp., 695 S.W.2d 568, 568-69 (Tex. 1985). Therefore, in this supplemental opinion, we address the second issue of appellant's motion for rehearing.
Appellant asserts the trial court's judgment in this matter is void because the proposed judgment was not filed with the Texas Department of Insurance, Division of Workers' Compensation (Division) at least thirty days before the judgment was signed. See Tex. Lab. Code Ann. § 410.258(a) (Vernon 2006). Section 410.258(f) of the labor code provides that a judgment entered or settlement approved by the trial court in a proceeding involving judicial review of a final workers' compensation administrative decision under chapter 410 of the labor code must comply with the section 410.258(a), or the judgment entered or settlement approved is void. Tex. Lab. Code Ann. § 410.258(f).
We presume regularity of the judgment absent controverting evidence. See Casillas v. State Office of Risk Mgmt., 146 S.W.3d 735, 738 (Tex. App.-El Paso 2004, no pet.). In accordance with the presumption of regularity of judgment, the complaining party carries the burden to establish why the reviewing court may not apply the presumption. S. Ins. Co. v. Brewster, 249 S.W.3d 6, 14 (Tex. App.-Houston [1st Dist.] 2007, pet. denied).
Here the record and the trial court's judgment are silent as to whether the proposed judgment complied with section 410.258(a) of the labor code. See Ins. Co. of State of Pa. v. Orosco, 170 S.W.3d 129, 134-135 (Tex. App.-San Antonio 2005, no pet.) (reviewing court presumes regularity of judgment absent controverting evidence; both judgment and record silent on whether parties complied with section 410.258(a); judgment not void); Casillas, 146 S.W.3d at 739 (Tex. App.-El Paso 2004, no pet.) (judgment and record silent on question of compliance with section 410.258; judgment not void). Therefore, appellant has failed to carry her burden. We deny appellant's second issue of her motion for rehearing.
In the first and third issues of her motion for rehearing, appellant asserts arguments not presented by appellant's presubmission brief to this Court. Having waived such arguments by her presubmission brief, appellant may not resurrect them via a motion for rehearing. Tex. R. App. P. 38.1(i); Coastal Liquids Trans. v. Harris County Appraisal Dist., 46 S.W.3d 880, 885 (Tex. 2001). We deny appellant's first and third issues of her motion for rehearing.
Accordingly, we overrule appellant's motion for rehearing.