freedom restoration act and section one hundred and ten point zero zero six and the jurisdictional issues involved in that part of the law specifically the fact that in and the trial court recognize they did not do that there is one exception for when you don't have to get the sixty days notice by return receipt requested surviving and i'll get to that in just a moment as well as the immunity issues but there are a couple of quick facts that are really important to set the stage for that the plaintiffs have been enrolled it mathes independent school district since they were in kindergarten the school district allowed them to be educated even though they had a braid that exceeded their requirement which was a hair code that says you can't have hair past your power they allow them because it's a fundamental right to be educated there was the tech the extracurricular activities that is at issue because the handbook specifically says you also have to file that or not and they said because that's not a fundamental right participating in extracurricular activities that in order for them to arkansas pay they would have to do that so that led to in january of two thousand and seventeen c g wanted to play football and making the claim that he should be allowed to participate and so he and it out lawyer on his behalf in this case filed a letter with the school district protesting the the religious issue and also found  grievance in august of two thousand and him in september and november of two thousand and seventeen the school district denied those that grievance it was on appeal it went to the nd stage in november in december d e g the nd child who also had a brady on december st bill that year he was told he couldn't participate in extracurricular activities the lawsuit was filed in january january th two thousand and eight and so in order for them to qualify for the exception they have to show that there was something in the next event that prevented them from writing the letter be a certified mail return recei requested well for c g he wrote a letter in august so he'd clearly had time to do it be a certified mail as far as b g he didn't actually join the suit in january he joined the suit in march and so clearly defined december st as he's admitted and that the trial court acknowledged he had noticed as of december st he had sixty days before he joined the suit to send a process i want to say and i may be wrong i want to say that the one child is the older child is a sophomore but he maybe he's maybe going to sophomore year and the other child is about a year behind ok four meant that you had to follow that preceded you notice but the legislature didn't do that they also didn't look at the decision and final and say wait a minute we didn't really mean that you have to send it by certified mail they did nothing to change the law and in fact  cite the legislative history where they added the provision of certified mail late in the process of creating the law so they really meant that to mean something that they wanted by certified mail return recei well what this court has said it means is that while there is a waiver of immunity to suit there is not a waiver of the immunity liability i think if you were to ask me personally with all due respect to the previous th circuit decision i think it's a prerequisite to any court getting jurisdiction is that you have to st send the notice the precincts notice and that can make them look at kind of the as i can in the precinct no it's it knocks out reason number one is because they raised st amendment and equal protection and we felt it was better to have those issues argued in front of a federal judge as opposed to a state because they were federal crimes but nd reason was because they took advantage of going immediately to state court and there wasn't enough time to be able to make the arguments and get into court and brief it before restraining order and so we took it to court is considering doing i'd rather you do that than rule against us but i don't believe that it's necessary for you to do that i think you are already taking this issue before and it's because there's been an opportunity for the texas legislature disagreed with you in one versus going out but they didn't they thought that that was exactly the right thing that had multiple opportunities to change the law if they thought that final was wrong in dismissing the case activities based on a single lock of hair that the boys have kept uncut since infancy as a part of a religious promise to god and which the the school district did not put forward any evidence before the district court in the hearing on the preliminary injunction regarding the sincerity of the religious beliefs of the  contest that on appeal here they did not say they do not contest that the school district's grooming policy substantially burden that sincerely held religious beliefs nor do they contest that the school district does not have a would be attorney fees related to the suit related to inject i believe but not not damages and you'll not be able work this out and unfortunately not unfortunately there's only so much wiggle room between being able to participate and not being able to instead and i should also know because counsel for the school district mentioned sovereign immunity from liability sovereign immunity from liability is not at issue in this appeal sovereign immunity from liability unlike sovereign immunity from suit is not jurisdictional it is governed by texas state law as this court noted in carty and it can be waived it's an affirmative defense that must be raised in pleadings that has not been it was not properly raised in this case and that issue is before the district court at this time but it's not properly on appeal here but what i understand the the people here is based on is a narrow late race jurisdictional reprimand and that they failed to do so assuming that that is correct the school district argument still fails because this court has subject matter jurisdiction based on its previous president because those three statutes the court how that the consequence of failure preceded notice was simply that the school district retained its governmental or sovereign immunity from suit and this is important because as this port noted in miers  with the legal power to maintain a sovereign immunity defense which it may raise or weigh in other words here you know a court need not decide whether or not  which unlike normal subject matter jurisdiction issues doesn't automatically destroyed this court subject matter jurisdiction instead it merely allows the school district to raise or consent to suit as it otherwise  hundred and thirty four as has held that it is a jurisdictional bar in the sense that the defendant may rely on sovereign immunity from c however as i mentioned before as of course also help sovereign immunity i don't believe that the court needs to reach that question here because even assuming as i mentioned that precinct notice was not mad or that big dollar family did not that with any exception in in this case th that makes a difference at  will i apologize to my internet was a little funny i missed the beginning of the question but as i understand it the question is whether or not the date in which the boy learns that the school policy was going to be applied generally to exclude them from all extracurricular activities applies to both c g and d g equally is that correct fiji when as the counsel for the school district and mentioned the kids the been aware of the grooming policy since before they started well and they have raised it with the school district and since kindergarten they received an exemption to be able to come to school what they didn't understand and it wasn't told to them until much later when they reached a middle school we were suddenly told by the football coach that they could not participate at t g cannot participate in football at the time they were going to the weavers process mentioned they understood and you can see from the letters back and for that bit apply to football and c g s participation in that and you can see where practically that makes sense as well as you know if we're talking about what the compelling interest might be if it were six years something else regarding football that's something you can discuss that wasn't until later number as the court found when d g who was participating in the science team was pulled out of his science team practice provided a note that said he would no longer be able to participate in science team maskey student council any extracurricular activity because of that it became a pleasurable was when c g was practicing with the football team and then was informed that he would not be getting a helmet and would not be allowed to participate and it's around that same time and middle school that a d d began  june so that is the line that's been drawn by the school district i will note that there aren't really a lot of extracurriculars that you can participate in that are not new while because what that would mean as  time every day and he does that but then he has to sit down and watch everybody else participate because he will not be issued a helmet or pass and cannot participate in that so it's a little bit of a cough distinction to say oh well it's just you i alex the curricular  because that's essentially the whole the whole ball of wax including very actually banned and and he was listening competitions would all be included in the exclusi  any government defendant who removes the claim from state court to federal court weighed sovereign immunity from suit as a matter of law and that adoption i know that the school reasoning goes well beyond simply the federal claims that issue there and based on the reasoning in that case and the concern regarding which the court adopted the waiver by remov l specifically that government defendants could use the tax tactical advantage of sovereign immunity to both invoke federal jurisdiction to continue to litigate the claim for which they invoke jurisdiction on the merits and to the extent they lose on the merits they can seek to avoid that but you to cation the merits by late raising sovereign immunity from sue but there seems to me there to different issues court i don't understand them to be saying that they have occasionally confusingly kind of gone back and forth between what they're really whether or not they're talking about sovereign immunity or to draft a liability they can't be right and that's not a question of this court subject matter jurisdiction that is correct it's not a matter of this court subject managers to action however unlike sovereign immunity from suit sovereign immunity from liability which is governed by texas state law as this court held and carty can be waived because it's an affirmative defense what unlike what what school district would need to do is raise that as affirmative defense tonally if it treated as an affirmative defense they may put you did something that could be sovereign immunity from liability a year and a half after the deadline for answering in dollars family moved to strike that serves and has moved for not as to liability that issue is not before this for the only issue for the sport is the argument that they raised before the district court which was sovereign immunity as to suit sovereign immunity as to sue which way when they removed as a matter of this court binding case law and as a result the only thing that they could rely on is sovereign immunity for liability as you mention but in order to raise that under texas law they must properly plead it as an affirmative defense and if they do not do so they waive that they did not do so they waived that they did not raise that before the district court and it is not at issue liability it's not an issue in that appeal and was otherwise swaped because of the failure to raise it as an affirmative but that unless there are any other questions from the court thank you cancel your argument thank you you're on and he had sixty days before he joined the suit to send it via certified mail now what point that's counsel didn't talk about it all is what was him in the record that shows an imminent activity that they couldn't participate let's just take january th as the deadline if january th is the deadline because that's when they filed suit let's say that the st time they  we we should send a certified letter what happened within the next sixty days march th just and between january th and march with me that was imminent that would not require them to send a letter and there's nothing in  and i want to read the exact language of three hundred and eleven thirty four and really important and i don't think you need to certify because of this statutory prerequisites to a suit include provisions of notice our jurisdictional require off suit against governmental entity and that's exactly what we're talking about this was a statutory prerequisite and you couldn't even file see if you didn't meet that prerequisite now it knew about miers and still dismissed the dripper one and so we're arguing that based upon that decision and just to someone i think your question was exactly right in including our position details and you have a transcript you can see that we didn't get into the difference between the two week simply so that they didn't meet their burden which is to file the precint notice sixty days and they didn't show anything i so the jurisdictional issue was always argued before the court at that proceeding saying that before this court has jurisdiction you had to be able to show that they get the pre suit requirement so that was the position that we set up there the other thing i just want to mention is he keeps saying that the school district weighed immunity and i understand what meyer says but texas state law is a school district can't waive with women only and other cases but we're getting a little feel from the arguments here but that would be my position with regard to that the last thing i want to touch on my minute or so that i have left is the question you ask your honor about amicable and it's not really an issue before the court but i do want to address it because it's a reasonable question and that is is there an amicable way of resolving this and the problem is with the that there is no amicable way of resolving comments that can be changed at any time that's what the point is it's the senate so today it could be i made a promise to god that i'm going to have my hair long tomorrow it could be i made a promise to god i was going to  position it's simply that it's one thing to have a an actual religious belief they don't have a religious belief in having long hair they have a religious belief in problem a science and the distinction is be that i wanted to but i don't want to fix the problem for the school district is and this is what every school district is interested in this case the problem is is that if you can just simply say i made a promise to god