NUMBER 13-22-00593-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG 

 

KEELY R. SMITH, Appellant.

v.

UNIVERSITY OF TEXAS

RIO GRANDE VALLEY, Appellee.

 

ON APPEAL FROM THE 389TH DISTRICT COURT

OF HIDALGO COUNTY, TEXAS

 

MEMORANDUM OPINION

Before Chief Justice Contreras and Justices Tijerina and Peña

Memorandum Opinion by Justice Tijerina

Appellant Keely R. Smith appeals the trial court’s judgment granting appellee the 

University of Texas Rio Grande Valley’s (UTRGV’s) plea to the jurisdiction. By five issues, 

Smith argues the trial court erred because: (1) the election of remedies doctrine in the 

Texas Commission on Human Rights Act (TCHRA) does not bar her state court suit; (2) 
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she could not have brought her state claims in federal court; (3) she could not have 

brought her federal court claims in state court; (4) she voluntarily dismissed her federal 

court claim; and (5) it could not have granted an amended plea to the jurisdiction that did 

not exist. We affirm.

I. BACKGROUND

On July 20, 2021, Smith filed suit against UTRGV in the 389th District Court of 

Hidalgo County asserting unlawful employment discrimination. UTRGV filed a plea to the 

jurisdiction asserting that Smith’s petition should be dismissed because it was barred by

the TCHRA’s election of remedies provision. See TEX. LAB. CODE ANN. § 21.211. UTRGV 

asserted Smith had a pending lawsuit in federal court for disability discrimination and 

retaliation based on the same operative facts and was thus precluded from pursuing suit 

in state court. UTRGV further asserted that Smith failed to exhaust her administrative 

remedies.

Smith responded, asserting she established a prima face case for discrimination 

and retaliation because she only needed to establish one single act of discrimination 

within the applicable period to invoke the trial court’s jurisdiction. Smith further alleged 

that the Texas Labor Code did not foreclose her federal claims.

The trial court ordered the parties to submit additional briefs. On March 14, 2022, 

UTRGV submitted its brief asserting that multiple courts have held that the labor code 

precluded a plaintiff from filing lawsuits in both state and federal court premised on the 

same alleged discriminatory acts. In Smith’s brief, Smith attempted to distinguish each of 

the cases relied on by UTRGV.
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On June 3, 2022, Smith filed a supplemental response to UTRGV’s plea to the 

jurisdiction. Smith explained that she voluntarily dismissed her federal lawsuit without 

prejudice on June 3, 2022; therefore, UTRGV’s plea to the jurisdiction should be denied

as she was not actively pursuing her federal causes of action. UTRGV responded that 

Smith cited no authority that a voluntary dismissal of her then-pending federal claim 

grants the trial court’s jurisdiction over her labor code claims. Instead, UTRGV asserted 

that the election of remedies provision is triggered by the initiation of a lawsuit in a different 

forum and required dismissal of Smith’s state claims.

The trial court granted UTRGV’s plea to the jurisdiction on September 21, 2022. 

Smith filed a motion for new trial, which the trial court denied. This appeal followed.

II. PLEA TO THE JURISDICTION

Smith asserts that she may pursue claims under the TCHRA in state court while 

separately pursuing claims under the American with Disabilities Act and the Rehabilitation 

Act in federal court based on the same facts. She concedes that § 21.211 prohibits a

former employee from suing an employer for a common-law tort and filing a TCHRA claim 

for the same conduct, but she maintains it does not require the employee to elect to bring 

a claim under a federal anti-discrimination statute or the TCHRA. UTRGV contends that 

§ 21.211 precludes an employee from pursuing claims based on the same termination 

facts in both federal and state court. Because Smith previously brought a federal suit 

based on her termination, UTRGV argues her state court suit based on the same facts is 

barred.

A. Standard of Review
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Governmental units, like UTRGV, enjoy sovereign immunity from lawsuits except 

where the legislature waives immunity. Flores v. Tex. Dep’t of Crim. Just., 634 S.W.3d 

440, 450 (Tex. App.—El Paso 2021, no pet.) (citing Tex. Parks & Wildlife Dep’t v. Sawyer

Trust, 354 S.W.3d 384, 388 (Tex. 2011)). Sovereign immunity deprives a trial court of 

subject-matter jurisdiction. Mission Consol. Indep. Sch. Dist. v. Garcia, 372 S.W.3d 629, 

636 (Tex. 2012). There is a limited waiver of immunity for claims brought against 

governmental units under the TCHRA, extending to suits in which the pleadings state a 

prima facie claim for an actual violation of the Act. See Tex. Dep’t of Crim. Just. v. Flores, 

555 S.W.3d 656, 661 (Tex. App.—El Paso 2018, no pet.) (citing Garcia, 372 S.W.3d at 

636). If the plaintiff fails to state a prima facie case, the governmental unit retains its 

immunity from suit. Id. (citing Garcia, 372 S.W.3d at 636).

A defendant may challenge subject-matter jurisdiction through a plea to the 

jurisdiction. See Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 225–26 (Tex. 

2004)). The plea can attack the pleaded facts as well as the existence of jurisdictional 

facts by attaching evidence to the plea. Id. We construe the pleadings liberally in favor of 

the plaintiff. City of El Paso v. Heinrich, 284 S.W.3d 366, 378 (Tex. 2009) (citation 

omitted). When, as here, there is no question of fact as to the jurisdictional issue, the trial 

court rules on the plea as a matter of law. Id. We review a trial court’s ruling on a plea to 

the jurisdiction de novo. Miranda, 133 S.W.3d at 226.

B. Applicable Law

Section 21.211 states:

A person who has initiated an action in a court of competent jurisdiction or 

who has an action pending before an administrative agency under other law 
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or an order or ordinance of a political subdivision of this state based on an 

act that would be an unlawful employment practice under this chapter may 

not file a complaint under this subchapter for the same grievance.

TEX. LAB. CODE ANN. § 21.211. This “provision must be read against the backdrop of 

extensive and overlapping state and federal anti-discrimination statutes.” Waffle House, 

Inc. v. Williams, 313 S.W.3d 796, 809 (Tex. 2010); see Hoffman-La Roche, Inc. v. 

Zeltwanger, 144 S.W.3d 438, 445 (Tex. 2004) (noting that “[t]he [T]CHRA is modeled after 

federal law with the purpose of executing the policies set forth in Title VII of the federal 

Civil Rights Act of 1964”). “Its obvious purpose, read in this context, is to provide that if a 

plaintiff files a federal cause of action under Title VII or another federal anti-discrimination 

statute, or brings a local grievance as expressly allowed under the TCHRA, she cannot 

bring a duplicative claim under the TCHRA.” Waffle House, 313 S.W.3d at 809–10

(emphasis added). Thus, “a claimant can pursue a remedy for discrimination under 

federal law or under grievance-redress systems in existence at the local level, but 

pursuing either of these options precludes later initiating a [T]CHRA complaint.” Id. at 810 

(quoting City of Waco v. Lopez, 259 S.W.3d 147, 155 (Tex. 2008)). “Section 21.211 limits 

the ability to pursue multiple grievances in multiple forums over the same alleged 

conduct.” Waco, 259 S.W.3d at 155.

C. Discussion

By first filing her discrimination and retaliation claims in federal court, Smith

“initiated an action in a court of competent jurisdiction . . . based on an act that would be 

an unlawful employment practice under” the TCHRA. See TEX. LAB. CODE ANN. § 21.211. 

She therefore could not later bring a complaint under the TCHRA for the same grievance.
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See Waffle House, 313 S.W.3d 809–10 (providing that a plaintiff “cannot bring a 

duplicative claim under the TCHRA” if the plaintiff has filed a claim under “another federal 

anti-discrimination statute” or sought “a local grievance as expressly allowed under the 

TCHRA”); Waco, 259 S.W.3d at 156 (“Lopez’s claim—that his employment was 

terminated in retaliation for alleging that his earlier transfer resulted from age and race 

discrimination—falls squarely under the [T]CHRA, which provides his exclusive state 

statutory remedy.”); see also Wije v. Burns, No. 01-19-00024-CV, 2020 WL 5269414, at 

*5 (Tex. App.—Houston [1st Dist.] Sept. 3, 2020, pet. denied) (mem. op.) (“Wije elected 

to pursue his discrimination and retaliation claims in federal court, and this election-ofremedies provision precludes him from pursuing these same claims in state court under 

the TCHRA.”); Wu v. Tex. A & M Int’l Univ., No. 04-11-00180-CV, 2011 WL 5406263, at 

*3 (Tex. App.—San Antonio Nov. 9, 2011, no pet.) (mem. op.) (“Because [plaintiff] elected 

to pursue administrative proceedings with the EEOC and file his discrimination suit in 

federal court, the election of remedies provision in the [T]CHRA precludes him from 

pursuing the same claim in state court under the [T]CHRA, and any amendment of his 

pleadings would be futile.”). 

Smith concedes that “a plaintiff cannot have two bites at the apple,” see Jackson 

v. Creditwatch, Inc., 84 S.W.3d 397, 402–403 (Tex. App.—Fort Worth 2002), rev’d in part 

on other grounds, 157 S.W.3d 814 (Tex. 2005), but asserts that because her federal 

claims were withdrawn, the trial court deprived her of any “bite at the apple.” According 

to Smith, “there were no simultaneous lawsuits.” However, § 21.211 expressly provides 

that “[a] person who has initiated an action in a court of competent jurisdiction . . . may 
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not file a complaint under this subchapter for the same grievance.” See TEX. LAB. CODE 

ANN. § 21.211 (emphasis added); see also Health & Human Servs. Comm’n v. Quintero, 

No. 08-23-00060-CV, 2023 WL 6613331, at *4 (Tex. App.—El Paso Oct. 10, 2023, no 

pet.) (mem. op.) (“By first filing her discrimination and retaliation claims in federal court, 

Quintero initiated an action in a court of competent jurisdiction based on an act that would 

be an unlawful employment practice under the TCHRA”) (internal citations omitted) 

(emphasis added); Wije, 2020 WL 5269414, at *5 (holding that the trial court did not err 

in dismissing the employer’s plea to the jurisdiction where the plaintiff “first filed” his Title 

VII discrimination and retaliation claims in federal court, but the federal claims were 

dismissed one year prior). The election-of-remedies statute does not require that a 

claimant pursue its original claim to a final adjudication. See TEX. LAB. CODE ANN.

§ 21.211. Instead, the statute only requires that a claimant “initiate” an action 

administratively, federally, or locally, to bar a subsequent complaint under the labor code. 

See id. That is precisely what Smith did here: she initiated an action in a court of 

competent jurisdiction (the federal court), and therefore cannot file a subsequent lawsuit 

complaint under the same facts pursuant to § 21.211.

1 See Waco, 259 S.W.3d at 155 

(noting that § 21.151 is specifically limited to local laws, and Section 21.211 limits the 

ability to pursue multiple grievances in multiple forums over the same alleged conduct.”); 

see also Stancu v. Cent. Apartment Mgmt., Inc., No. 394-CV-2440-D, 1997 WL 278127, 

at *2 (N.D. Tex. May 14, 1997) (mem. op.) (“[Section] 21.211 merely provides that if a 

1 We note that Smith elected to voluntarily dismiss her causes of action in federal court without 

prejudice, thereby allowing her the opportunity to refile the same. 
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person has already initiated a lawsuit or other proceeding permitted by law, order, or 

ordinance, he may not file a complaint with the Commission on Human Rights for the 

same practice. It is in this sense alone that he elects his remedy.” (emphasis added)). 

The statute only requires initiation, and we are bound by that language. See Fort 

Bend Indep. Sch. Dist. v. Gayle, 371 S.W.3d 391, 398 (Tex. App.—Houston [1st Dist.] 

2012, pet. denied) (“The meaning of ‘initiate’ is plain: it means to commence the 

process . . . begin, introduce, set going, originate”); City of Fort Worth v. Shilling, 266 

S.W.3d 97, 106 (Tex. App.—Fort Worth 2008, pet. denied) (“Having initiated

administrative proceedings with the City regarding conduct involving Craven, Shilling was 

unambiguously prohibited by labor code [§] 21.211 from contemporaneously pursuing her 

complaint with the TWC based on the same grievance.” (emphasis added)). Accordingly, 

we conclude the trial court did not err by granting UTRGV’s plea to the jurisdiction on this 

basis. We overrule Smith’s first issue. Because this issue is dispositive, we need not 

address Smith’s remaining issues. See TEX. R. APP. P. 47.1. 

III. CONCLUSION

We affirm the judgment of the trial court.

JAIME TIJERINA

Justice

Delivered and filed on the

18th day of July, 2024.