Dr. Eric Vanderwerff, D.C. v. Texas Department of Insurance - Division of Workers' Compensation, DWC, and DWC Commissioner Jeff Nelson in His Official Capacity

ACCEPTED
15-25-00026-CV
FIFTEENTH COURT OF APPEALS
AUSTIN, TEXAS
10/1/2025 12:03 AM
No. 15-25-00026-CV CHRISTOPHER A. PRINE
CLERK
IN THE FIFTEENTH COURT OF APPEALS FILED IN
AUSTIN, TEXAS 15th COURT OF APPEALS
AUSTIN, TEXAS
10/1/2025 12:03:45 AM
Dr. Eric Vanderwerff, D.C., Appellant CHRISTOPHER A. PRINE
Clerk
v.

Texas Department of Insurance - Division of Workers' Compensation, DWC, and
DWC Commissioner Jeff Nelson in his Official Capacity, Appellee

On appeal from the 455th District Cout of Travis County in Case No. D-1-GN-23-
004200 the Honorable Karin Crump Presiding District Judge

APPELLANT’S REPLY BRIEF

Bradley Dean McClellan
Board Certified in Workers’ Compensation Law,
Texas Board of Legal Specialization
State Bar No. 13395980
2904 Bowman Avenue
Austin, Texas, 78703
Phone: 512-694-8843
Fax: (512) 564-4284
Brad.McClellan@yahoo.com
Counsel for Dr. Eric Vanderwerff, D.C.
Appellant

September 30, 2025

Oral Argument Requested
TABLE OF CONTENTS

TABLE OF AUTHORITIES iii

ISSUE PRESENTED iv

APPELLANT'S REPLY BRIEF 1
SUMMARY OF ARGUMENT 2
REPLY ARGUMENT & AUTHORITIES 3
CONCLUSION 22
PRAYER 23
CERTIFICATE OF COMPLIANCE 24
CERTIFICATE OF SERVICE 24

ii
No. 15-25-00026-CV Appellant’s Brief
INDEX OF AUTHORITIES
Cases
Cash Am. Int'l Inc. v. Bennett, 35 S.W.3d 12, 15 (Tex. 2000)................................. 16
City of Houston v. Rhule, 417 S.W.3d 440, 442 (Tex. 2013) .................................. 16
Dass v. Tex. Bd. of Prof'l Eng’rs, 517 S.W.3d 252, 256-57 (Tex. App.—Austin 2017,
no pet.) ............................................................................................................. 17
Magnolia Petroleum Co. v. New Process Prod. Co., 129 Tex. 617, 104 S.W.2d 1106,
1110-11 (Tex. 1937) .......................................................................................... 17
Patel v. Tex. Dep't of Licensing & Regulation, 469 S.W.3d 69, 79 (Tex. 2015) ........ 8
Patino v. Texas Dep't of Ins.-Div. of Workers Comp., 631 S.W.3d 163, 171-72(Tex.
App.-Houston [14th Dist.] 2020, no pet.) ............................................................ 9
Texas Ass'n of Acupuncture & Oriental Med. v. Texas Bd. of Chiropractic Exam'rs,
524 S.W.3d 734, 736 (Tex. App.—Austin 2017, no pet.) ................................... 18
Texas State Board of Veterinary Medical Examiners v. Jefferson, No. 03-14-00774-
CV, 2016 Tex. App. LEXIS 2002, (Tex. App.—Austin 2016, no pet.) ................... 18

Statutes
TEX. OCC. CODE § 201.151 ................................................................................ 16, 18
TEX. OCC. CODE § 201.353 ...................................................................................... 20
TEX. OCC. CODE § 201.507(d). ................................................................................. 21
Tex. Occ. Code § 201.354(d). ..............................................................................5, 7
Texas Insurance Code § 4003.007 ........................................................................ 22

iii
No. 15-25-00026-CV Appellant’s Brief
ISSUES PRESENTED

Issue No. 1:
Whether the jurisdiction and regulation over chiropractic licenses is
exclusively with the Texas Board of Chiropractic Examiners, TBCE, and not
the DWC or the DWC Commissioner, who have acted without any
jurisdiction and exceeded their statutory authority in pursuing and
enforcing professional licensure matters against the Doctor?

Issue No. 2

Whether chiropractic renewal of chiropractic licenses for the two year
term is allowed for up to one year of the two year period, and the
Legislature only requires a higher renewal fee for the two-year period if
the license is renewed within the first year of the two year period. Tex.
Occ. Code § 201.354. The TBCE does not have any discretion for additional
fees or enforcement if chiropractor meets renewal requirements within
the first year of the two year license periods.

Issue No. 3 (Incorporating Issues No. 1 and 2 by reference)

Whether the District Court erred in granting a final summary judgment
based upon “substantial evidence” without allowing the declaratory relief,
ultra vires actions, and other relief sought by the Doctor to proceed
against the DWC & the DWC Commissioner in acting in an arbitrary and
capricious mannder in selectively singling out the Doctor for workers’
compensation state agency punishment well beyond any regulatory
authority of the agency and with no showing of any like or comparable
actions against a single other health care provider or licensed
professional?

iv
No. 15-25-00026-CV Appellant’s Reply Brief
v
No. 15-25-00026-CV Appellant’s Reply Brief
No. 15-25-00026-CV
IN THE FIFTEENTH COURT OF APPEALS
AUSTIN, TEXAS

Dr. Eric Vanderwerff, D.C., Appellant
v.
Texas Department of Insurance - Division of Workers' Compensation, DWC, and
DWC Commissioner Jeff Nelson in his Official Capacity, Appellee

On appeal from the 455th District Cout of Travis County in Case No. D-1-GN-23-
004200 the Honorable Karin Crump Presiding District Judge

APPELLANT’S REPLY BRIEF

TO THE HONORABLE JUSTICES OF THE FIFTEENTH COURT OF APPEALS:

The DWC Appellees, the Texas Department of Insurance - Division of

Workers' Compensation, DWC, and DWC Commissioner Jeff Nelson in his Official

Capacity, admit that Dr. Eric Vanderwerff, D.C., Appellant and the Doctor renewed

his license that “Dr. Vanderwerff paid the fee for the entire two-year renewal

period plus a late fee.” DWC Br. pp. 15. Yet, DWC Appellees, still fallaciously argue

that his license was “not valid” during the first nine months of the year allowed to

renew the biennial license; however, the Texas Board of Chiropractic Examiners,

the TBCE, has never asserted such and cannot because the express laws adopted

by the Legislature allow for complete chiropractic license “renewal” with only an

increased fee during the first year of the two-year or biennial license.

1
No. 15-25-00026-CV Appellant’s Reply Brief
I. SUMMARY OF REPLY ARGUMENT

No Evidence of Harm by the Doctor, but Plenty of Legal Fouls by the DWC.

We are here because of a state official acting upon an insupportable belief

that an expired license, still subject to renewal, took a retaliatory ex parte action

against a chiropractor, who had a pending “free speech” penalty proceeding

against the agency, and the agency head asserted with zero evidence of harm to a

single person then, later, or even now that practicing with a license still subject to

timely renewal would inherently result in harm to the health, safety, or welfare of

another person. The ex parte actions and retaliatory enforcement should create

not a chill, but a freeze over Texan’s rights and freedoms to engage in lawful

occupations.

The DWC Appellee’s brief does not even use the word harm in trying to justify

the DWC Commissioner issuing and continuing to try to enforce an unlawful cease

and desist licensing order, CDO, for which exclusive authority over such matters

belongs by law to the TBCE. The only basis for the “emergency” ex parte CDO was

an expired license asserted to result in harm to a person. No harm to a person

occurred.

The DWC Appellee’s fail to cite to any precedent for the unprecedented and
2
No. 15-25-00026-CV Appellant’s Reply Brief
unlawful cease and desist order on an expired license, subject to renewal, and

attempts to enforce such order by a non-licensing agency much less the licensing

authority in the TBCE.

Imagine the harm to patients that would come from chiropractor who did

not expeditiously move to have another doctor to take over care of patients like

the Doctor did in good faith? Where is a single other expired chiropractic license

still subject to non-discretionary renewal ever shown to be the subjected to (1)

an emergency cease and desist order, much less ex parte, in any occupation by

any agency not even the licensing agency itself or (2) any additional disciplinary

actions or penalties beyond the Legislature’s express limit of an increased

renewal fee?

II. REPLY ARGUMENT & AUTHORITIES

All DWC’s Allegations are based upon TBCE Licensure Renewal Law.

The DWC Appellees assert only two factual violations of its licensure CDO

over a six month period including after the timely renewal within one-year on June

25, 2021, DWC Br. p. 17:

. . . including serving as a treating doctor, until he notifies DWC that the
3
No. 15-25-00026-CV Appellant’s Reply Brief
Texas Board of Chiropractic Examiners has allowed him to practice
chiropractic medicine.” A.R. DWC 01196. As of June 29, 2021, Dr.
Vanderwerff had not notified DWC that TBCE allowed him to practice
chiropractic medicine. As such, he violated the CDO a second time.

This again shows DWC’s whole argument is based upon licensing and the fallacy

that TBCE ever prohibited the Doctor from practicing chiropractic medicine during

the first year of the two year license. The TBCE did not and could not. This again

shows the DWC well beyond its jurisdiction attempting to apply and interpret TBCE

authority over licenses.

An expired license does not come close to being a “suspended” license or

“revoked” license for Texas doctors of chiropractic. The exclusive licensing

authority for chiropractors, the Texas Board of Chiropractic Examiners (TBCE),

accepted payment for the full two year period and renewed the license of the

Doctor. The TBCE had no discretion for accepting payment during the first year of

the two year period with only an additional fee if not paid prior to the start of the

two year licensure period. The DWC Appellees admit that not only the statute but

the TBCE rules “allow” such renewal, again in applying TBCE exclusive authority,

DWC Br. p. 12:

TBCE rules allow a licensee to renew his or her license within one year after
expiration by complying with all renewal requirements and paying a late fee.

4
No. 15-25-00026-CV Appellant’s Reply Brief
The Doctor, without dispute, did “renew his or her license within one year after

expiration by complying with all renewal requirements and paying” an “increased

renewal fee.” The Legislature expressly refers to the fee as being an “increased

renewal fee” not a “late” fee and not a “penalty” fee:

“A person whose license has been expired for less than one year may renew

the license by paying the Board an increased renewal fee.” Tex. Occ. Code §

201.354(d).

The DWC Appellees never even use the work proration or prorated though a

fundamental part of the Doctor’s brief was to make clear the renewal was for the

entire two year period, DWC Br. p. 11 to 12:

Dr. Vanderwerff repeatedly argues that “under the law and TBCE rules he
was authorized to practice and that his full two-year license term was
successfully renewed during the first year of his two-year license in
compliance with the express statutory terms, with payment covering the
entire two year period.” App. Br. 18-19. This argument does not align with
the law.

The DWC Appellees do not and cannot explain why the Doctor’s timely renewal in

the first year of a two year license does not cover the entire two year period

because no proration has occurred and the TBCE accepted the full payment for the

entire two years. Even if this Court wants to accept DWC’s argument that this

would be retroactive, the result is the same the license is fully renewed and paid
5
No. 15-25-00026-CV Appellant’s Reply Brief
for the entire two year period.

De Novo Review of Legal Questions is the Correct Standard.

The DWC Appellees spend most of their brief arguing about TBCE rules and

TBCE violations again showing that this licensing matter is not in DWC’s jurisdiction.

The DWC Appellees appear to want to hide behind “substantial evidence” review,

which standard the Doctor prevails under, but this matter goes into declaratory

relief and an agency official and employees grossly overstepping limited Legislative

authority and ignoring express laws. The Doctor agrees that questions of law are

reviewed de novo as DWC’s brief cites to Davis v. Morath, 624 S.W.3d 215, 221

(Tex. 2021). DWC Br. p. 6. This requires no deference to an agency, even the TBCE

with the licensing authority.

No Dispute Exists that the Doctor Completed “Renewal Requirements.”

The DWC Appellees one one had assert that they: “have never taken or

attempted to take enforcement action against Dr. Vanderwerff’s chiropractic

license, which is under the jurisdiction of the TBCE.” DWC Br. p. 7. Yet, DWC

Appellees state that they “relied upon the TBCE” rule 22 Tex. Admin. Code §

72.14(a), (e), and argue that, DWC Br. p. 8:
6
No. 15-25-00026-CV Appellant’s Reply Brief
The fact that Dr. Vanderwerff eventually completed the renewal
requirements and paid the fee does not make his license effective
retroactively.

Here again, the DWC acknowledges a “renewal” not a reinstatement of a

suspended license, but yet again clearly shows this is a “license” issue which is

under TBCE authority. A chiropractic license is for the full two years, this is not a

retroactive argument, but the timely completion of licensure requirements and

payment of “an increased renewal fee.” Tex. Occ. Code § 201.354(d). The

Legislature only required an “increased renewal fee” for the entire first year of the

biennial license renewal, no penalties and zero discretion of even the TBCE.

Take the logic of DWC Appellees if any doctor of chiropractic check is lost by

TBCE staff, if a doctor is incapacitated during the 30 days prior to license renewal

date and misses by two weeks, if a doctor is in serious financial difficulties due to a

transmittable disease impacting in person treatment and needs more time for the

license payment, this is all covered by allowing non-discretionary renewal for the

entire first year of the two-year license. Again, the TBCE has never challenged the

express statutory will of the Legislature and asserted such frivolous and

unconstitutional legal arguments.

7
No. 15-25-00026-CV Appellant’s Reply Brief
This is not a retroactive removal of a wrongly supspended or revoked license

The Doctor, and all chiropractors, should not be subjected to clear and

unreasonable interference by a rogue officials and an non-licensing agency acting

with retaliation against a Texan standing up for his patient’s rights. As Justice

Willett noted in Patel, Patel v. Tex. Dep't of Licensing & Regulation, 469 S.W.3d 69,

79 (Tex. 2015),.cited to by both parties:

The U.S. Supreme Court has repeatedly declared that the right to pursue a
lawful calling "free from unreasonable governmental interference" is
guaranteed under the federal Constitution, and is "objectively, deeply rooted
in this Nation's history and tradition." A pro-liberty presumption is also
hardwired into the Texas Constitution, which declares no citizen shall be
"deprived of life, liberty, property, [or] privileges or immunities"—phrasing
that indicates citizens already possess these freedoms, and government
cannot take them "except by the due course of the law of the land."

Patel, 469 S.W.3d at 93 (Willett, J., concurring) (citing Washington v. Glucksberg,

521 U.S. 702, 703, 117 S. Ct. 2258, 117 S. Ct. 2302, 138 L. Ed. 2d 772 (1997),

and Greene, 360 U.S. at 492). An ex parte CDO issued days before Christmas against

a party with a pending administrative proceeding by an agency with no licensing

jurisdiction certainly did unreasonably deprive a Texas citizen of the right to pursue

a lawful calling.

8
No. 15-25-00026-CV Appellant’s Reply Brief
Even assuming the challenge to the void CDO is untimely (which the Doctor

expressly denies), this does not bar his constitutional challenges for

declaratory/injunctive relief especially with the continued attempts to enforce the

unlawful CDO in this matter. See Patino v. Texas Dep't of Ins.-Div. of Workers Comp.,

631 S.W.3d 163, 171-72(Tex. App.-Houston [14th Dist.] 2020, no pet.)(allowing

doctors constitutional challenges to proceed against DWC attempted enforcement

of laws to pursue penalties against doctors removed from a workers’ compensation

“approved doctor list” which laws have been stopped with likely with an extremely

questionable constitutional basis).

What could the DWC Appellees have done? Simply refer this matter to the

TBCE in the days before Christmas 2020 for any licensure issues just like the void

cease and desist order which was made ex parte with zero complaints of harm to a

patient and after several days of investigation with no communication with the

Doctor or shown with the TBCE. The TBCE certainly aware of this matter, properly

followed the law and accepted the increased renewal fee within the first year of

the biennial license, and the TBCE had no discretion to do such and the TBCE has

no authority to even pursue disciplinary action for the expired period. Why should

the DWC Commissioner with no license authority be allowed to violate the express
9
No. 15-25-00026-CV Appellant’s Reply Brief
renewal laws of the Legislature?

Only the TBCE Exclusive Authority to Issue a Cease and Desist Order After Notice
& an Opportunity to Be Heard.

The DWC Appellees attempt to assert not under the law of the Legislature

but under a TBCE rule read in isolation that the Doctor “was considered by TBCE to

be practicing without a license.” Yet, DWC wants to argue that it has authority to

take matters into its own unclean (a pending “free speech” allegation against the

Doctor) hands to issue a

In most all cases of a cease and desist order under Texas laws notice and an

opportunity to be heard is guaranteed as Constitutionally required. Only the TBCE

has authority to issue a cease and desist order for allegations of practicing “without

a license” after notice

The Legislature provided only the TBCE with cease and desist order authority

for chiropractors or persons who appear to be practicing chiropractic without a

license. Under Texas Occup. Code Sec. 201.6015, which the TBCE did not and has

not invoked against the Doctor:

CEASE AND DESIST ORDER. (a) If it appears to the board that a person is
engaging in an act or practice that constitutes the practice of chiropractic
without a license or registration under this chapter, the board, after notice
and opportunity for a hearing, may issue a cease and desist order prohibiting
the person from engaging in that activity.

10
No. 15-25-00026-CV Appellant’s Reply Brief
(b) A violation of an order under this section constitutes grounds for
imposing an administrative penalty under Subchapter L.

VOID actions by DWC & No Licensing Actions by TBCE, The Exclusive Regulatory
Agency of Chiropractic Treatment

When this matter first arose, not with a phone call or an inquiry, but the DWC

Commissioner, with zero licensing authority making the cease and desist order void

ab initio, taking on the Texas Board of Chiropractic Examiners role in issuing a cease

and desist order on licensing: SR 4 AR 2813, DWC Ex. 26:

10. Pursuant to 22 TEX. ADMIN. CODE § 72.14, Dr. Vanderwerff is subject to
disciplinary action by the Texas Board of Chiropractic Examiners because he
provided health care services with an expired license.

This entire grossly wrong and overreach by the DWC Commissioner as a “finding of

fact” shows the complete disregard for the Legislature’s one year increased fee

only—no disciplinary authority even by the TBCE is allowed. How much of this

could have been prevented with a simple phone call or notice to the TBCE if the

TBCE wanted to assert its own exclusive authority to issue a cease and desist order

for practicing without a license? Why is there no evidence of a single other DWC

Commissioner cease and desist order on a same or similar license issue under the

TWCA?

11
No. 15-25-00026-CV Appellant’s Reply Brief
DWC was never notified otherwise, and attempts to argue again that the

Doctor had a responsibility under the Void cease and desist order to notify DWC

(which again the Doctor attempted to follow in a David versus Goliath struggle),

DWC Br. p. 17:

As of June 29, 2021, Dr. Vanderwerff had not notified DWC that TBCE allowed
him to practice chiropractic medicine. As such, he violated the CDO a second
time.

Yet another erroneous argument of the DWC shows the whole CDO was based

upon being until “TBCE allowed him to practice” which TBCE never disallowed his

practice and could not prohibit his practice because the Doctor only had to pay the

increased fee during the entire first year of the two year license period. This also

shows the ultra vires and grossly punitive and selective and retaliatory acts of the

DWC Appellees in that the DWC demanded additional notice (which was provided

within a week) of publicly verifiable licensing.

The DWC Appellees, not the TBCE itself, argue the Doctor violated TBCE rules

and admit that TBCE controls chiropractors but somehow try to argue that TBCE

12
No. 15-25-00026-CV Appellant’s Reply Brief
had prevented treatment of all patients, yet DWC was only enforcing as to workers’

compensation patients in a circular argument (DWC Brief p. 15):

Appellees have not taken action against Dr. Vanderwerff for the treatment
of his patients who were not part of the workers’ compensation system,
though it is clear that treatment violated TBCE rules. Id. Appellees only acted
under the authority of the TWCA, which authorized them to issue a CDO
prohibiting Dr. Vanderwerff from treating patients in the workers’
compensation system until TBCE allowed him to practice chiropractic
medicine.

The TCBE never prohibited and by law could not prohibit the Doctor from

practicing chiropractic medicine. All DWC’s erroneous authority for “taken action”

are based on TBCE authority and rules. The TBCE has to this day not taken any

action against the Doctor because the Legislature does not allow such for the

renewal of a two year license during the first year. The DWC has no authority to

prohibit a doctor from treating patients whether workers’ compensation or non-

workers’ compensation on licensure matters because the DWC has no licensure

authority period.

DWC Argues this is not a Licensing Matter, yet Continually Cites TBCE Licensing.

DWC also asserts specifically that TBCE’s own rules—not the DWC rules

(DWC Br. p. 14):

13
No. 15-25-00026-CV Appellant’s Reply Brief
Most importantly, TBCE’s own rules explicitly state “[a] licensee who fails to
renew a license under subsection (a) of this section shall be considered by
the Board as practicing without a license and subject to disciplinary action.”
22 Tex. Admin. Code § 72.14(e).

The complete silence from TBCE for now almost five years as to any disciplinary

action eviscerates the DWC’s arguments. Quite simply, the TBCE cannot take

disciplinary action of any kind for the timely “renewal” of an expired license.

Entire Two Year Period of TBCE License Renewed—No Proration.

DWC admits the Doctor “paid the fee for the entire two year period plus a

late fee” at DWC Br. p. 15:

Dr. Vanderwerff paid the fee for the entire two-year renewal period plus a
late fee; however, that did not change the fact that when he practiced
chiropractic medicine between October 1, 2020, and June 25, 2021, his
license was not valid. As such, he could not treat patients in the workers’
compensation system during that time.

The TBCE did not and could not prorate the two year renewal fee to not apply to

the period between October 1, 2020, and June 25, 2021. The two year renewal fee

covered October 1, 2020, through September 30, 2022. DWC Appellees completely

fail to address why proration is provided for in other TBCE statute and TBCE rules,

but no proration is applicable here. In fact, the word prorate is not even used in

14
No. 15-25-00026-CV Appellant’s Reply Brief
DWC’s briefing in any form or manner.

The DWC even concedes that the health care provider’s licensing authority is who

controls, DWC Br. p. 15-16 :

TWCA requires medical professionals treating patients in the workers’
compensation system to be licensed by the board that oversees their field of
practice. Tex. Lab. Code § 401.011(21)(A), (17).

The Doctor agrees that the board is the TBCE in this matter. The Doctor would

point out doctors of any type must be licensed. TEX. LAB. CODE § 401.011(17). The

same applies to insurance adjusters who are licensed by the Department of

Insurance under the Insurance Code. TEX. LAB. CODE § 401.011(1). The Legislature

in the TWCA itself provided that licensure matters. The DWC’s cites to professions

who may be completely barred from practicing in their fields (though the Doctor

will respect the relevant licensing departments) due to license ending, but such

examples do not apply to chiropractors, attorneys, adjuster and a host of others

who have a renewal period by law. Frankly, the renewal periods for most all

licensures avoid constitutional conflicts.

The Texas Board of Chiropractic Examiners, TBCE, has the sole regulatory

15
No. 15-25-00026-CV Appellant’s Reply Brief
authority over chiropractors and licensure issues. TEX. OCC. CODE § 201.151. When

an agency is given the sole authority by the Legislature to make an initial

determination in a dispute, the agency has exclusive jurisdiction over the dispute,

and exhaustion of administrative remedies is required. City of Houston v. Rhule,

417 S.W.3d 440, 442 (Tex. 2013); Cash Am. Int'l Inc. v. Bennett, 35 S.W.3d 12, 15

(Tex. 2000). The silence of the TBCE, the agency with exclusive jurisdiction over

chiropractor licensing continues to be deafening. The TBCE should be commended

for following the non-discretionary one year renewal period for chiropractors

during which the Legislature did not allow for any disciplinary actions or penalties

for the biennial license renewal.

An increased fee is all this is required, and the Doctor successfully renewed

his two-year TBCE license with the full two-year payment and late fee paid by June

25, 2021, within one year of October 1, 2020, and TBCE accepted his payment for

the entire two year period without proration or even attempted proration. Even

the TBCE cannot impose additional fees much less any administrative penalties for

a chiropractor’s renewal in the first year.

EXCLUSIVE JURISDICTION OF THE TBCE TO REGULATE CHIROPRACTORS

16
No. 15-25-00026-CV Appellant’s Reply Brief
DWC asserts that it can interpret a health care provider’s license status as to

workers’ compensation patients, somehow sore backs at work are treated different

than sore backs at sports or home, and that the Doctor, DWC Br. p. 18: “violated

the TWCA by treating patients and by billing and submitting work status reports for

patients in the workers’ compensation system without a valid license.” Once more

this proves the only basis for these actions is licensure and to try to distinguish

injured workers from other patients is absurd.

The DWC Appellees failed to respond to how the DWC has any licensure

jurisdicition making any such agency orders without jursidiction void. Dass v. Tex.

Bd. of Prof'l Eng’rs, 517 S.W.3d 252, 256-57 (Tex. App.—Austin 2017, no pet.);

Magnolia Petroleum Co. v. New Process Prod. Co., 129 Tex. 617, 104 S.W.2d 1106,

1110-11 (Tex. 1937).

If the Chiropractic Chapter is violated or any TBCE rules, the Legislature

expressly only allowed the TBCE to take action: “On a determination that a person

has violated this chapter or a rule adopted by the board under this chapter, the

board:(1) shall revoke or suspend the person's license, place on probation a person

whose license has been suspended, or reprimand a license holder; or (2) may

impose an administrative penalty.” TEX. OCC. CODE § Sec. 201.501. Only the TBCE

is authorized by law “to administer the purposes of and enforce this chapter.” .”
17
No. 15-25-00026-CV Appellant’s Reply Brief
TEX. OCC. CODE § 201.151. Texas Ass'n of Acupuncture & Oriental Med. v. Texas Bd.

of Chiropractic Exam'rs, 524 S.W.3d 734, 736 (Tex. App.—Austin 2017, no pet.).

The DWC keeps asserting a TBCE rule that according to the DWC practicing

prohibits a chiropractor with an expired license from practicing without a license

and subject to disciplinary action. Even the TBCE, which has not ever attempted

disciplinary action on this matter or a similar matter, could not try to interpret the

statute to give power to penalize a chiropractor who renews a license within the

first year of the two year renewal period. Texas State Board of Veterinary Medical

Examiners v. Jefferson, No. 03-14-00774-CV, 2016 Tex. App. LEXIS 2002, (Tex. App.—

Austin 2016, no pet.) (mem. op)(licensing agency has no power to regulate conduct

that does not show an intent to violate a licensing act under express laws of

Legislature).

Absolutely No Evidence of Imminent or Any Harm to the Public Health,

Safety, and/or Welfare. DWC also alleged in the DCO and continued to assert that

Dr. Vanderwerff practiced medicine in an acceptable manner consistent with public

health, safety, and welfare, yet no evidence of any harm was shown.

18
No. 15-25-00026-CV Appellant’s Reply Brief
The Doctor never Provided Unlicensed Care as Asserted by the DWC.

The DWC Commissioner asserted that without legal authority or factual basis

in the ex parte cease and desist order that the Doctor’s conduct will result in harm

to the health, safety, or welfare of another person: SR 4 AR 2813, DWC Ex. 26:

No. 11. Based on the facts presented, unless Dr. Vanderwerff is immediately
ordered to cease and desist from providing unlicensed chiropractic care to
Texas workers’ compensation patients, his conduct will result in harm to the
health, safety, or welfare of another person.

The facts were approved and paid billing statements and not a single complaint

then or now by a patient as to even the slightest harm. The SOAH administrative

judge clearly found no harm at all at any time in his findings of fact , CR 158, 168:

40. The evidence did not show any shortcoming in the health care Dr.
Vanderwerff provided. [unchallenged]

41. The fact that Dr. Vanderwerff was unlicensed could have but did not
create problems in the workers' compensation system. [challenged by DWC
but rejected by ALJ noting “The fact that the Division issued a cease and
desist order to prevent possible harm does not indicate that harm
occurred.”]

42. The evidence fails to show that Dr. Vanderwerff has any prior violations
in his more than 25 years in workers' compensation.

The Continued Unlawful “Enforcement” of a Void and Unlawful Cease and Desist
Order.

This dispute may not exist but for the DWC Appellee’s attempt to
19
No. 15-25-00026-CV Appellant’s Reply Brief
enforcement the unlawful CDO on TBCE licensing and assert penalties beyond the

limited and only required Legislative “renewal fee” during the first year of the

biennial license.

The DWC failed to present any “penalty” evidence much less how the TBCE

or any agency could take any disciplinary action when the Legislature mandated

only a late renewal fee for up to one year for chiropractors who miss the deadline

for whatever reason. TEX. OCC. CODE § 201.354.

In fact, and the DWC Appellee’s do not dispute that this matter arose during

the pendency of another frivolous attempt by the DWC to use an inapplicable

statute to try to shut up and shut down the “free speech” of Dr. Vanderwerff

advocating for his and his patient’s rights. SR See Doctor’s Ex. D SOAH DOCKET NO.

XXX-XX-XXXX.C1, MSD attached and Agreed Dismissal Notice with Prejudice July 13,

2021.

DWC’s briefing does not challenge the Doctor’s position that “No proration

is asserted in this case, and TBCE accepted the payment to cover the full two years

of the license renewal as testified by Dr. Vanderwerff and the TBCE staff member.”

TEX. OCC. CODE § 201.353. Only for a year which the license expiration date is

changed is a license fee “prorated on a monthly basis so that each license holder

20
No. 15-25-00026-CV Appellant’s Reply Brief
pays only the portion of the fee that is allocable to the number of months during

which the license is valid.” Id. Subsection (b). Why would the TBCE accept the full

two years of payment if the license was not valid during the first 9 months as DWC

alleges.

Finally DWC asserts, DWC Br. p. 14 that: “license renewal is one mechanism

by which state regulatory agencies, such as TBCE, protect the public.

Administration of a license renewal process helps an agency enforce standards and

respond to violations of those standards.” The Doctor could not agree more as to

licensing agencies, and the TBCE the chiropractic regulatory agency followed the

renewal process as mandated by the Legislature and cannot take any disciplinary

action against the Doctor. The DWC, an non-licensing agency, is without any basis

to issue a CDO or assert disciplinary penalties over a license timely renewed

according to the express laws.

The DWC’s attempt to classify full payment for the two years to only apply

to the remaining 15 months and not the prior 9 months is wrong. The only

reference in the chiropractic statute to “reinstated” is when the TBCE license may

be a “suspended license” will be “reinstated” if timely action is not taken on a TBCE

temporary license suspension. TEX. OCC. CODE § 201.507(d).
21
No. 15-25-00026-CV Appellant’s Reply Brief
The mother agency to DWC, the Texas Department of Insurance itself

recognizes that once the late fees and license fee are paid the effective date is the

license expiration date. Only, if an adjuster does not fulfill the late requirements

within 90 days, the license “cannot be “renewed,” and the person must apply for a

“new license.” 28 Tex. Admin. Code § 19.810 (TDI Rule 19.810). Texas Insurance

Code § 4003.007.

To conclude, the DWC Appellees do not challenge that the Texas Supreme

Court has again reemphasized that “penal statutes should be strictly construed”

and where ambiguous to construe in favor of the person enforcement is sought.

Malouf v. State ex rel. Ellis, 694 S.W.3d 712, (Tex. 2024).

III. CONCLUSION

Having conceded the Doctor “renewed” his license before the DWC by doing

all that the Legislature required, the DWC and DWC Commissioner have wholly

failed to prove by fact or by law any licensure authority over chiropractors much

less the Doctor, and the DWC’s cease and desist order is void and without legal

authority to be issued on a chiropractic license which was still well within the one

year time period to complete renewal requirements with no discretionary review

even by the TBCE. This Court is respectfully asked to rule on this matter in favor of
22
No. 15-25-00026-CV Appellant’s Reply Brief
the Doctor for the reasons presented and remand this matter for further

proceedings under the proper interpretation of the laws and proper agency

jurisdiction.

PRAYER

The Doctor respectfully requests that this Court reverse the final judgment

and allow the declaratory judgment actions to proceed to resolution including

declaratory relief on this matter based upon the failure of the DWC and the DWC

Commissioner to assert a proper jurisdictional or legal basis for its allegations, and

further that the Doctor has not been shown to have committed any violations and

that his two-year license term was successfully and properly renewed within the

grace period allowed by the Legislature. The Doctor requests all other relief to

which he is entitled.

Respectfully submitted,

/s/Brad McClellan
Bradley Dean McClellan
State Bar No. 13395980
Brad.McClellan@yahoo.com
Board Certified Workers' Compensation Law,
Texas Board of Legal Specialization
Law Office of Brad McClellan
2904 Bowman Avenue
Austin, Texas 78703
512-694-8843 (cell)
512-564-4284 fax
23
No. 15-25-00026-CV Appellant’s Reply Brief
Attorney for Appellant

CERTIFICATE OF COMPLIANCE

I certify that I have 4,715 word count checked by the word program in compliance
with the Texas Rules of Appellate Procedure.

/s/ Brad McClellan
Bradley Dean McClellan

CERTIFICATE OF SERVICE

I certify that a copy of the foregoing and attached has been served on the
below through their counsel of record by the method indicated below on
September 30, 2025.

Lauren McGee
Assistant Attorney General
Office of the Attorney General of Texas
Administrative Law Division
P.O. Box 12548, Capitol Station
Austin, Texas 78711-3203
Lauren.mcgee@oag.texas.gov
Attorney for Defendants

/s/ Brad McClellan
Bradley Dean McClellan

24
No. 15-25-00026-CV Appellant’s Reply Brief
Automated Certificate of eService
This automated certificate of service was created by the efiling system.
The filer served this document via email generated by the efiling system
on the date and to the persons listed below. The rules governing
certificates of service have not changed. Filers must still provide a
certificate of service that complies with all applicable rules.

Bradley McClellan on behalf of Bradley McClellan
Bar No. 13395980
brad.mcclellan@yahoo.com
Envelope ID: 106290034
Filing Code Description: Brief Requesting Oral Argument
Filing Description: Appellant's Reply Brief
Status as of 10/1/2025 7:10 AM CST

Case Contacts

Name BarNumber Email TimestampSubmitted Status

Brad McClellan brad.mcclellan@yahoo.com 10/1/2025 12:03:45 AM SENT

Jennifer Foster Jennifer.Foster@oag.texas.gov 10/1/2025 12:03:45 AM SENT

Lauren McGee lauren.mcgee@oag.texas.gov 10/1/2025 12:03:45 AM SENT