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Texas Health and Human Services Commission v. Olguin

Court of Appeals of Texas, Third District, Austin

May 24, 2017

Texas Health and Human Services Commission, Appellant
Albert Olguin, Appellee


          Before Justices Puryear, Pemberton, and Goodwin


          Melissa Goodwin, Justice

         The Texas Health and Human Services Commission (HHSC) appeals from the trial court's denial of its plea to the jurisdiction. Albert Olguin brought suit against HHSC pursuant to the Texas Commission on Human Rights Act (TCHRA), alleging discrimination, retaliation, and aiding and abetting discriminatory behavior. See Tex. Lab. Code §§ 21.051, .055, .056. HHSC filed a plea to the jurisdiction alleging that Olguin had failed to file and serve his lawsuit within the statutory deadline. See id. § 21.254. The trial court denied the plea, and HHSC filed this interlocutory appeal. See Tex. Civ. Prac. & Rem. Code § 51.014(a)(8). For the reasons that follow, we affirm the trial court's order.


         Olguin is a former HHSC employee whose employment was terminated on July 29, 2014. Olguin filed a charge of discrimination against HHSC with the Texas Workforce Commission Human Rights Division (TWC), alleging that his termination was the result of discrimination and retaliation.[1] TWC issued a Notice of Right to File a Civil Action, or "right to sue letter, " which Olguin received on May 4, 2015. Under section 21.254 of the TCHRA, Olguin had 60 days from his receipt of the right to sue letter to "bring a civil action" against HHSC. See Tex. Lab. Code § 21.254. Olguin filed suit against HHSC on June 29, 2015, four days before the expiration of the 60-day deadline for filing suit, alleging discrimination, retaliation, and aiding and abetting discriminatory behavior. See id. §§ 21.051, .055, .056. For reasons not entirely clear, but apparently because of a clerical error on the part of the district clerk's office, citation was not served on HHSC until July 20, 2015, more than 60 days after Olguin's receipt of the right to sue letter. HHSC filed its plea to the jurisdiction, seeking dismissal of Olguin's claims based on his failure to timely file and serve his suit against HHSC. HHSC also sought dismissal of Olguin's claims for retaliation and aiding and abetting discriminatory behavior on the ground that Olguin had failed to exhaust his administrative remedies by failing to assert those claims in his charge of discrimination filed with TWC. See University of Tex. v. Poindexter, 306 S.W.3d 798, 807 (Tex. App.-Austin 2009, no pet.) (holding that before bringing suit, plaintiff must file administrative complaint with EEOC or TWC and that suit is limited to specific issues made in administrative complaint).

         Olguin filed a response in which he explained that he had filed his petition electronically through an electronic filing service; that at the time he filed suit, he had requested issuance of citation; that due to a clerical error, no citation had issued; and that as soon as Olguin discovered that citation had not issued, he again requested citation, which was served five days after his second request. Olguin attached as evidence his attorney's affidavit and the receipt from the electronic filing service. The receipt contained a section entitled "Note to Clerk, " stating "Applicable Fees are: Filing Fee of $252.00; and $8.00 for citation on the Defendant TEXAS HEALTH AND HUMAN SERVICES COMMISSION I will have this served via private process server . . . ." After a hearing and supplemental briefing, the trial court granted the plea as to the claim for aiding and abetting discriminatory behavior and denied it as to the discrimination and retaliation claims. HHSC then filed this interlocutory appeal.[2] See Tex. Civ. Prac. Rem. & Code § 51.014(a)(8).


         Sovereign immunity bars suits against the state and its entities unless the state consents by waiving immunity. See Prairie View A&M Univ. v. Chatha, 381 S.W.3d 500, 512-13 (Tex. 2012). "[T]he manner in which the government conveys its consent to suit is through the Constitution and state laws." Mission Consol. Indep. Sch. Dist. v. Garcia, 253 S.W.3d 653, 660 (Tex. 2008). Thus, "'it is the Legislature's sole province to waive or abrogate sovereign immunity.'" Id. (quoting Texas Nat. Res. Conservation Comm'n v. IT-Davy, 74 S.W.3d 849, 853 (Tex. 2002)). One such waiver can be found under the TCHRA, which provides that an employer may not, on certain specified bases, discriminate, retaliate, or aid and abet in discriminatory behavior against an employee, see Tex. Lab. Code §§ 21.051, .055, .056, and that a complainant may bring suit against the employer within 60 days after receiving notice of a right to sue, see id. § 21.254; see also Garcia, 253 S.W.3d at 660 (holding that "the TCHRA clearly and unambiguously waives immunity" and that Legislature has consented to suits brought under TCHRA "provided the procedures outlined in the statute have been met").

         Because sovereign immunity deprives a trial court of subject matter jurisdiction in a pending case, it is properly asserted in a plea to the jurisdiction. Engelman Irrigation Dist. v. Shields Bros., __S.W.3d__, 2017 Tex. LEXIS 294, at *9 (Tex. Mar. 17, 2017) (holding that sovereign immunity implicates subject matter jurisdiction, but not to an extent allowing collateral attack on final judgment); Texas Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 223, 226 (Tex. 2004). We review ultimate questions of the trial court's subject matter jurisdiction de novo. See Miranda, 133 S.W.3d at 226. Our resolution of the jurisdictional inquiry in this case involves statutory construction, which is itself a question of law that we review de novo. See Railroad Comm'n v. Texas Citizens for a Safe Future & Clean Water, 336 S.W.3d 619, 624 (Tex. 2011). Our primary concern in construing a statute is the express statutory language. See Galbraith Eng'g Consultants, Inc. v. Pochucha, 290 S.W.3d 863, 867 (Tex. 2009). We apply the plain meaning of the text unless a different meaning is supplied by legislative definition or is apparent from the context or unless the plain meaning leads to absurd results. Marks v. St. Luke's Episcopal Hosp., 319 S.W.3d 658, 663 (Tex. 2010).


         In a single issue, HHSC contends that the trial court erred in denying its plea to the jurisdiction because Olguin failed to meet the deadline in section 21.254 for "bringing a civil action." Section 21.254 provides that "[w]ithin 60 days after the date a notice of the right to file a civil action is received, the complainant may bring a civil action against the respondent." See Tex. Lab. Code § 21.254. It is undisputed that Olguin timely filed suit but did not serve HHSC until more than 60 days after receiving notice of his right to file a civil action. Relying primarily on Chatha, 381 S.W.3d 500, HHSC argues that timely filing suit is a jurisdictional prerequisite in a suit against a governmental entity and that bringing suit under section 21.254 includes both filing and serving the governmental defendant within the 60-day deadline.

         In Chatha, the Texas Supreme Court addressed whether Chatha's failure to timely file her complaint with TWC within 180 days after the alleged unlawful employment practice occurred, as required by section 21.202 of the TCHRA, was a jurisdictional bar to suit. See id. at 502, 510. The court examined section 311.034 of the Texas Government Code, which provides in relevant part that "[s]tatutory prerequisites to a suit, including the provision of notice, are jurisdictional requirements in all suits against a governmental entity." See id. at 510-11 (quoting Tex. Gov't Code § 311.034 (entitled "Waiver of Sovereign Immunity")). The court observed that the Legislature had amended section 311.034 in response to the court's holding in University of Texas Southwestern Medical Center at Dallas v. Loutzenhiser, 140 S.W.3d 351, 354, 364-65 (Tex. 2004), superceded by statue on other grounds, Act of May 25, 2005, 79th Leg., R.S., ch. 1150, § 1, 2005 Tex. Gen. Laws 3783, 3783 (codified at Tex. Gov't Code § 311.034)-that failure to provide pre-suit notice under section 101.101(a) of the Texas Torts Claims Act was not a jurisdictional defect-and concluded that the amendment "evinces the Legislature's intent that all statutory prerequisites are now jurisdictional requirements as to governmental entities." Chatha, 381 S.W.3d at 511. The court then determined that the administrative filing deadline under section 21.202 is a statutory requirement that must be complied with before filing suit and is thus a statutory prerequisite under section 311.034 so that Chatha's failure to file her complaint within the deadline in section 21.202 jurisdictionally barred her suit. Id. at 513-14.

         Under Chatha, HHSC argues, section 21.254's requirement to "bring suit" within 60 days of receipt of a right to sue letter is a jurisdictional requirement that Olguin failed to meet by failing to serve HHSC within 60 days in addition to filing suit. Olguin contends that because he timely brought suit and thereafter exercised due diligence in serving HHSC, his suit is not jurisdictionally barred. HHSC does not dispute that under the due diligence defense doctrine, service of citation "relates back" to the date of filing or that Olguin exercised due diligence in obtaining service after the 60-day deadline but argues that the due diligence defense to untimely service following timely filing of suit is unavailable in a suit against a governmental entity where timely filing suit is jurisdictional. The question, then, is what it means under section 21.254 to "bring a civil action" within 60 days of a right to sue letter-filing only or both filing and service. A related question is whether service, after timely filing, is a statutory ...

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