Reversed and Remanded and Majority and Dissenting Opinions filed January 

22, 2015.

In The

Fourteenth Court of Appeals

NO. 14-13-01105-CV

ISABEL CAMPBELL, Appellant

V.

AMANDA DUFFY MABRY, INDIVIDUALLY AND AS INDEPENDENT 

EXECUTRIX OF THE ESTATE OF AUSTIN R. DUFFY, Appellee

On Appeal from the Probate Court No. 1

Harris County, Texas

Trial Court Cause No. 410,842-401

O P I N I O N

In this case concerning claims of unpaid wages, the trial court granted 

summary judgment in the employer’s favor on the ground that the employee’s

wage claim before the Texas Workforce Commission (“the TWC”) is entitled to 

res judicata effect, precluding a subsequent wage claim in a civil court. In its 

summary-judgment motion, the employer addressed a prior version of the law, 
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under which the TWC had subject-matter jurisdiction over all of the employee’s 

wage claims. Because the TWC now lacks subject-matter jurisdiction over claims 

for wages due more than 180 days before the complaint is filed, the employer 

failed to establish the extent to which the agency’s decision is a final judgment on 

the merits. We reverse and remand without addressing the remaining elements of 

the employer’s res judicata defense.

I. FACTUAL AND PROCEDURAL BACKGROUND

On July 24, 2012, Isabel Campbell filed a wage claim with the Texas 

Workforce Commission seeking unpaid wages of $698,880.00. She alleged that 

she worked for Don and Amanda Duffy Mabry, providing private home health care 

for one of her employer’s parents from August 28, 2006 through February 28, 

2012. She represented that she agreed to work twenty-four hours a day, seven days 

a week; that her rate of pay was $14.00 per hour; and that the Mabrys breached a 

promise to pay her overtime at the rate of $21.00 per hour. The TWC found that 

(a) it lacked jurisdiction to rule on Campbell’s claim for unpaid overtime wages 

that were due more than 180 days before she filed her complaint, and

(b) Campbell’s employment was exempt from the overtime provisions of the Fair 

Labor Standards Act. The TWC accordingly dismissed the claim. Campbell 

contested the ruling, but then voluntarily dismissed the appeal.

A few weeks later, Campbell filed suit against Amanda Mabry, individually 

and as executrix of the estate of Mabry’s father Austin R. Duffy, for breach of a 

written employment contract and fraud in inducing Campbell to enter into the 

contract. Campbell later amended the petition to assert a claim in quantum meruit

for the value of the services she rendered. Overtime is not mentioned in 

Campbell’s pleadings.

Mabry moved for traditional summary judgment on the ground of res 
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judicata, arguing that the TWC already had ruled on the same claims against the 

same parties. The trial court granted the motion. In a single issue, Campbell 

challenges that ruling.

II. STANDARD OF REVIEW

A movant for traditional summary judgment has the burden of showing that 

there is no genuine issue of material fact and that it is entitled to judgment as a 

matter of law. TEX. R. CIV. P. 166a(c); Mann Frankfort Stein & Lipp Advisors, 

Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009). If the movant initially 

establishes a right to summary judgment on the issues expressly presented in the 

motion, then the burden shifts to the nonmovant to present to the trial court any 

issues or evidence that would preclude summary judgment. See City of Houston v. 

Clear Creek Basin Auth., 589 S.W.2d 671, 678–79 (Tex. 1979). On appeal, the 

movant for traditional summary judgment still bears the burden of showing that 

there is no genuine issue of material fact and that it is entitled to judgment as a 

matter of law. See Rhône-Poulenc, Inc. v. Steel, 997 S.W.2d 217, 223 (Tex. 1999). 

We review the judgment by considering all the evidence in the light most favorable 

to the nonmovant, crediting evidence favorable to the nonmovant if a reasonable 

factfinder could, and disregarding contrary evidence unless a reasonable factfinder 

could not. See Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex. 2006). 

III. ANALYSIS

To obtain summary judgment on the ground that the plaintiff’s claims are 

barred by res judicata, a defendant must establish that (a) a court of competent 

jurisdiction already has rendered a final judgment on the merits in an action, (b) the 

prior action was between the same parties or those in privity with them, and (c) the 

claims now being raised are the same as those that were litigated or that could have 

been litigated in the earlier action. See Igal v. Brightstar Info. Tech. Grp., Inc., 250 
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S.W.3d 78, 86 (Tex. 2008), superseded by statute on other grounds, Act of April 

28, 2009, 81st Leg., R.S., ch. 21, §§ 1–2, 2009 TEX. GEN. LAWS 40, 40 (codified at 

TEX. LAB. CODE ANN. § 61.052(b-1) (West Supp. 2014) and as an amendment to 

TEX. LAB. CODE ANN. § 61.051(c)), as recognized in Prairie View A&M Univ. v. 

Chatha, 381 S.W.3d 500, 512 n.17 (Tex. 2012). In her summary-judgment 

motion, Mabry asserted that the entirety of the TWC’s ruling in Campbell’s earlier 

wage claim was a final judgment on the merits; that the parties in this action are 

the same as those in the TWC action; and that the claims in both proceedings are 

the same. We conclude, however, that Mabry failed to establish these assertions as 

a matter of law, and thus, the burden never shifted to Campbell to raise a genuine 

issue of material fact.

In arguing that the TWC’s ruling was a final judgment on the merits, Mabry 

relied entirely on a case decided under a prior version of the law. See Igal, 250 

S.W.3d at 84. Under the law as it existed when Igal was decided, the TWC had 

concurrent jurisdiction with the civil courts over wage claims; thus, under the law 

as it then existed, Campbell could have pursued the entirety of her wage claim 

before either tribunal. See id. at 82. Wage claims brought before the TWC may be 

adjudicated more quickly and inexpensively than similar claims brought in court. 

See id. But the trade-off for bringing a wage claim before the TWC was that a 

claimant had to file the claim within 180 days after the wages were due. See Act 

of May 12, 1993, 73rd Leg., R.S., ch. 269 § 1, sec. 61.051(c), 1993 TEX. GEN.

LAWS 987, 1014 (“A wage claim must be filed not later than the 180th day after 

the date the wages claimed became due for payment.”). Although the TWC argued 

that the 180-day filing requirement was jurisdictional, the Texas Supreme Court 

rejected that argument. Igal, 250 S.W.3d at 89. The Igal court determined that 

although the 180-day deadline was mandatory, it was not jurisdictional, but instead 
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was in the nature of an affirmative limitations defense. See id. at 90. Thus, under 

Igal, a final judgment by the TWC was a final judgment on the merits by a court of 

competent jurisdiction entitled to res judicata effect. See id.

The problem with Mabry’s reliance on Igal is that our state legislature 

immediately responded by amending the statute. See Act of Apr. 28, 2009, 81st 

Leg., R.S., ch. 21, §§ 1–2, 2009 TEX. GEN. LAWS 40, 40. For wage claims filed in 

the TWC on or after September 1, 2009, “[t]he 180-day deadline is a matter of 

jurisdiction.” TEX. LAB. CODE ANN. § 61.051(c); see also id. § 61.052(b-1) (“If a 

wage claim is filed later than the date described by Section 61.051(c), the examiner 

shall dismiss the wage claim for lack of jurisdiction.”). 

We presume that the legislature was aware of the Texas Supreme Court’s 

ruling in Igal and that the legislature intended to change the law. See In re Allen, 

366 S.W.3d 696, 706 (Tex. 2012) (orig. proceeding) (explaining that courts 

presume the legislature “is aware of relevant case law when it enacts or modifies 

statutes”); Ex parte Trahan, 591 S.W.2d 837, 842 (Tex. Crim. App. 1979) (“In 

enacting an amendment the Legislature is presumed to have changed the law, and a 

construction should be adopted that gives effect to the intended change, rather than 

one that renders the amendment useless.” (citing Stolte v. Karren, 191 S.W. 600 

(Tex. Civ. App.—San Antonio 1916, writ ref’d) (op. on reh’g))); Risner v. Harris 

Cnty. Republican Party, 444 S.W.3d 327, 343 (Tex. App.—Houston [1st Dist.] 

2014, [mand. denied]) (“[W]hen interpreting an amendment to a statute, we 

presume that the legislature intends to change the law.”); see also Univ. of Tex. Sw. 

Med. Ctr. at Dall. v. Loutzenhiser, 140 S.W.3d 351, 359 (Tex. 2004) (pointing out 

that the legislature “is bound to know the consequences of making a requirement 

jurisdictional”), superseded by statute on other grounds, Act of May 25, 2005, 

79th Leg., R.S., ch. 1150, § 1, 2005 TEX. GEN. LAWS 3783, 3783 (current version 
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at TEX. GOV’T CODE ANN. § 311.034 (West 2013)); S. COMM. ON ECON. DEV., BILL 

ANALYSIS, Tex. S.B. 741, 81st Leg., R.S. (2009) (noting that the Texas Supreme 

Court ruled that the TWC’s determination that a claimant’s wage claim was filed 

after the 180-day deadline is a determination on the merits so that a claimant 

thereafter could not bring the same wage claim in court, and stating that the bill 

“amends current law relating to [TWC’s] jurisdiction over a wage claim filed after 

the deadline”).

Because the TWC no longer has subject-matter jurisdiction to address the 

merits of claims for unpaid wages that were due more than 180 days before the 

claim was filed, it could not render a final judgment on the merits on that portion 

of Campbell’s wage claim. See Igal, 250 S.W.3d at 82 (“Res judicata does not 

apply when the initial tribunal lacks subject matter jurisdiction over the claim.”); 

Dubai Petroleum Co. v. Kazi, 12 S.W.3d 71, 76 (Tex. 2000) (sub. op.) (“[A] 

judgment will never be considered final if the court lacked subject-matter 

jurisdiction.”); see also In re Dep’t of Family & Protective Servs., 273 S.W.3d 637, 

641 (Tex. 2009) (orig. proceeding) (explaining that if statutory dismissal dates 

were jurisdictional, then the trial court’s orders after that date would be void). 

Thus, to the extent that Campbell asserts claims for wages due more than 180 days 

before she filed her claim with the TWC, those claims have not yet been 

adjudicated and res judicata does not apply. 

Depending on the dates on which Campbell’s allegedly unpaid wages were 

due, the TWC ruling could be a final judgment on the merits as to all of her wage 

claim, part of it, or none of it. As the summary-judgment movant, Mabry bore the 

burden to prove what part of Campbell’s current claim, if any, is barred by res 

judicata. Mabry argued that the TWC ruling was a final judgment on the merits of

the entirety of Campbell’s current claims, but because the TWC now has 
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jurisdiction only over claims for wages that allegedly were due not more than 180 

days before the complaint was filed, Mabry’s argument could succeed only if she 

established that all of the wages claimed in the TWC were due, if at all, not more 

than 180 days before Campbell filed her complaint. See Montgomery v. Blue 

Cross & Blue Shield of Tex., Inc., 923 S.W.2d 147, 151–52 (Tex. App.—Austin 

1996, writ denied) (reversing summary judgment where the plaintiff’s extracontractual claims could not have been brought in an earlier action before an 

agency that had subject-matter jurisdiction only over contractual claims). Mabry

did not attempt to do so. 

We also have considered whether Mabry established her entitlement to a 

portion of the relief sought, that is, whether she asserted and proved that res 

judicata applies to some identifiable portion of Campbell’s current wage claim. Cf. 

McLernon v. Dynegy, Inc., 347 S.W.3d 315, 324–25 (Tex. App.—Houston [14th 

Dist.] 2011, no pet.) (affirming summary judgment as modified where the movant 

conclusively established its right to a portion of the amount allegedly due under a 

promissory note, but failed to prove its entitlement to the full amount sought). But 

in her summary-judgment motion, Mabry did not address Campbell’s wagepayment schedule at all. Because Mabry has not established the extent to which 

the claimed wages allegedly were due in the 180-day period before the TWC 

complaint was filed, we cannot know if they were part of the TWC’s ruling on the 

merits. Cf. Hernandez v. Del Ray Chem. Int’l, Inc., 56 S.W.3d 112, 114, 117 (Tex. 

App.—Houston [14th Dist.] 2001, no pet.) (explaining that a case tried to a final 

judgment in 1990 did not bar a party’s later claims under a 1987 promissory note 

where the final payment on the note was not due until 1992, and thus, was not part 

of the earlier suit). We therefore are unable to determine that the TWC ruling 

precludes Campbell from pursuing any of the wages she claims in this suit. See
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Wilburn v. State, 824 S.W.2d 755, 766 (Tex. App.—Austin 1992, no writ) (sub. 

op.) (holding that movant for traditional summary judgment failed to meet its 

burden to establish the amount of contributions and penalties it was owed for 

wages paid after March 15, 1986 where its summary-judgment evidence reflected 

contributions and penalties due through March 30, 1986, and the portion due based 

on wages paid after March 15, 1986 could not be determined from the evidence); 

Moreno v. Alejandro, 775 S.W.2d 735, 738 (Tex. App.—San Antonio 1989, writ 

denied) (explaining that where the appellee’s own summary-judgment evidence 

showed that some of the damages awarded to him from a lawsuit were community 

property, the appellee bore the burden to establish what portion of the damages 

represented his separate property).

In sum, Mabry failed to establish the first element of her affirmative defense. 

She therefore did not meet her initial burden to establish her entitlement to 

summary judgment, and the burden never shifted to Campbell. We accordingly 

sustain the sole issue presented for our review.

IV. CONCLUSION

Because Mabry failed to establish, as a matter of law, the extent to which the 

TWC’s ruling on Campbell’s wage claim is a final judgment on the merits rather 

than a dismissal for lack of jurisdiction, we reverse the judgment and remand the 

case without addressing the remaining elements of Mabry’s affirmative defense.

/s/ Tracy Christopher

Justice

Panel consists of Chief Justice Frost and Justices Christopher and Busby (Frost, 

C.J., dissenting).