P.O. BOX 1231 LONGVIEW, TEXAS 75606 T 903.757.6400 F 903.757.2323 WWW.WSFIRM.COM 

BRETT F. MILLER 

BMILLER@WSFIRM.COM 

April	9,	2015	

Cathy	S.	Lusk,	Clerk	

Twelfth Court of Appeals 

1517 West Front Street, Suite 354 

Tyler, Texas 75702 

Re: Case Number: 12-14-00134-CV 

 Trial Court Case No.: 2012-1842-A 

Style: American Idol, General, LP d/b/a The REO, and Randy Hanson a/k/a Randall Hanson 

 v. Pither Plumbing Co., Inc. 

Dear Ms. Lusk: 

During today’s oral argument, the Justices requested that I send this letter with the 

following citations and enclose copies of those opinions: 

1. Thomas v. Long, 207 S.W.3d 334, 339-340 (Tex. 2006) (implicit ruling case) 

2. Am. Star Energy & Minerals Corp. v. Stowers, No. 13-0484, 2015 Tex. LEXIS 

161, *5 (Tex. Feb. 27, 2015) (partner liability case) 

Please deliver a copy of this letter and the enclosed opinions to each Justice for their 

review and consideration. Thank you in advance for your assistance in this matter. 

 Very respectfully yours, 

 

 Brett F. Miller 

BFM/tlw 

Enclosures 

cc: Mr. Ken Good (via electronic filing) 

ACCEPTED

12-14-00134-CV

TWELFTH COURT OF APPEALS

TYLER, TEXAS

4/9/2015 4:16:09 PM

CATHY LUSK

CLERK

 FILED IN 12th COURT OF APPEALS TYLER, TEXAS 4/9/2015 4:16:09 PM CATHY S. LUSK Clerk
| | Caution

As of: April 9, 2015 12:36 PM EDT

Thomas v. Long

Supreme Court of Texas

February 11, 2004, Argued ; April 21, 2006, Delivered

NO. 03-0204

Reporter

207 S.W.3d 334; 2006 Tex. LEXIS 280; 49 Tex. Sup. J. 532; 24 I.E.R. Cas. (BNA) 956

TOMMY THOMAS, SHERIFF OF HARRIS

COUNTY, PETITIONER, v. JEANNE LONG,

RESPONDENT

Subsequent History: [**1] As Corrected April

26, 2006.

Prior History: ON PETITION FOR REVIEW

FROM THE COURT OF APPEALS FOR THE

FOURTEENTH DISTRICT OF TEXAS.

Thomas v. Long, 97 S.W.3d 300, 2003 Tex. App.

LEXIS 129 (Tex. App. Houston 14th Dist., 2003)

Core Terms

trial court, interlocutory appeal, Commission’s,

subject matter jurisdiction, exclusive jurisdiction,

court of appeals, termination, employees, return

to work, Remedies, summary judgment,

reinstatement, pet, lack of subject matter

jurisdiction, sheriff’s department, physical ability,

jurisdictional challenge, summary judgment

motion, disciplinary action, seniority, benefits,

partial, orders, declaratory judgment,

administrative body, no loss, regulations, requires,

exhaust, rights

Case Summary

Procedural Posture

In an interlocutory appeal, petitioner sheriff

challenged a judgment of the Court of Appeals for

the Fourteenth District of Texas, which dismissed

for lack of jurisdiction his appeal of a trial court’s

denial of his plea to the jurisdiction.

Overview

The underlying dispute concerned the

interpretation of an order issued by the county

sheriff’s department civil service commission

relating to respondent former county employee’s

appeal of her termination. The court held that

although the sheriff’s plea was made as part of a

summary judgment motion, the court of appeals

had jurisdiction to consider the interlocutory

appeal. By ruling on the merits of the employee’s

declaratory judgment claim, the trial court

necessarily denied the sheriff’s challenge to its

jurisdiction. That implicit denial satisfied Tex. Civ.

Prac. & Rem. Code Ann. § 51.014(a)(8) and gave

the court of appeals jurisdiction to consider the

sheriff’s interlocutory appeal. However, the court

dismissed the claims relating to the employee’s

reinstatement to employment because her failure

to exhaust administrative remedies deprived the

trial court of subject matter jurisdiction over those

claims. Once the employees of a department

elected to create a commission, and the

commission’s rules created rights employees

would not have at common law, the commission

obtained exclusive jurisdiction over those matters

under Tex. Loc. Gov’t Code Ann. §§ 158.032-.033,

.035.

Outcome

The court reversed the court of appeals’ judgment

and rendered judgment dismissing for lack of

Brett Miller
subject matter jurisdiction the employee’s claims

relating to her reinstatement.

LexisNexis® Headnotes

Civil Procedure > ... > Subject Matter Jurisdiction >

Jurisdiction Over Actions > General Overview

Civil Procedure > ... > Summary Judgment >

Motions for Summary Judgment > General

Overview

Civil Procedure > Appeals > Appellate Jurisdiction >

Interlocutory Orders

HN1 Because there is a conflict among the courts

of appeals on whether a governmental unit’s

challenge to subject matter jurisdiction is

appealable if raised in a motion for summary

judgment, the state supreme court has jurisdiction

over an interlocutory appeal involving the issue.

Tex. Gov’t Code Ann. §§ 22.001(a)(2), 22.225(c).

Civil Procedure > ... > Responses > Defenses,

Demurrers & Objections > Motions to Dismiss

Civil Procedure > Appeals > Appellate Jurisdiction >

Final Judgment Rule

Civil Procedure > Appeals > Appellate Jurisdiction >

Interlocutory Orders

HN2 Generally, appeals may only be taken from

final judgments or orders. Tex. Civ. Prac. & Rem.

Code Ann. § 51.014. Section 51.014(a)(8) provides

an exception to this general rule by allowing an

appeal from an interlocutory order that grants or

denies a plea to the jurisdiction by a governmental

unit as that term is defined in Tex. Civ. Prac. &

Rem. Code Ann. § 101.001.

Civil Procedure > ... > Subject Matter Jurisdiction >

Jurisdiction Over Actions > General Overview

Civil Procedure > ... > Responses > Defenses,

Demurrers & Objections > Motions to Dismiss

Civil Procedure > Dismissal > Involuntary

Dismissals > Appellate Review

Civil Procedure > Appeals > Appellate Jurisdiction >

State Court Review

HN3 It is proper for a trial court to dismiss claims

over which it does not have subject matter

jurisdiction but retain claims in the same case

over which it has jurisdiction. A trial court is not

required to deny an otherwise meritorious plea to

the jurisdiction or a motion for summary judgment

based on a jurisdictional challenge concerning

some claims because the trial court has jurisdiction

over other claims. To the extent some courts of

appeals have held otherwise, the state supreme

court disapproves of those holdings.

Civil Procedure > ... > Subject Matter Jurisdiction >

Jurisdiction Over Actions > General Overview

Civil Procedure > Appeals > Appellate Jurisdiction >

Interlocutory Orders

Civil Procedure > Appeals > Appellate Jurisdiction >

State Court Review

HN4 The legislature has provided for an

interlocutory appeal when a trial court denies a

governmental unit’s challenge to subject matter

jurisdiction, irrespective of the procedural vehicle

used. Tex. Civ. Prac. & Rem. Code Ann. §

51.014(a)(8). To the extent some courts of appeals

have held otherwise, the state supreme court

disapproves of those holdings.

Civil Procedure > ... > Subject Matter Jurisdiction >

Jurisdiction Over Actions > General Overview

Civil Procedure > ... > Responses > Defenses,

Demurrers & Objections > Motions to Dismiss

Civil Procedure > Appeals > Appellate Jurisdiction >

Interlocutory Orders

HN5 To be entitled to an interlocutory appeal,

Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(8)

requires the denial of a jurisdictional challenge.

The Texas Rules of Appellate Procedure only

require that the record show the trial court ruled

on the request, objection, or motion, either

expressly or implicitly. Tex. R. App. P.

33.1(a)(2)(A). Because a trial court cannot reach

the merits of a case without subject matter

jurisdiction, a trial court that rules on the merits of

Page 2 of 11

207 S.W.3d 334, *334; 2006 Tex. LEXIS 280, **1

Brett Miller
an issue without explicitly rejecting an asserted

jurisdictional attack has implicitly denied the

jurisdictional challenge.

Administrative Law > Judicial Review >

Reviewability > Exhaustion of Remedies

Administrative Law > Judicial Review > Standards

of Review > De Novo Standard of Review

Administrative Law > Separation of Powers >

Jurisdiction

Administrative Law > Separation of Powers >

Legislative Controls > Scope of Delegated Authority

Civil Procedure > ... > Subject Matter Jurisdiction >

Jurisdiction Over Actions > General Jurisdiction

HN6 Whether the Harris County Sheriff’s

Department Civil Service Commission has

exclusive jurisdiction over a dispute is a question

of law that the state supreme court reviews de

novo. Texas trial courts are courts of general

jurisdiction with the power to hear and determine

any cause that is cognizable by courts of law or

equity and to grant any relief that could be granted

by either courts of law or equity. Tex. Gov’t Code

Ann. § 24.007-.008; Tex. Const. art. V, § 8. In

contrast, administrative bodies only have the

powers conferred on them by clear and express

statutory language or implied powers that are

reasonably necessary to carry out the legislature’s

intent. When the legislature grants an

administrative body the sole authority to make an

initial determination in a dispute, the agency has

exclusive jurisdiction over the dispute. If an

administrative body has exclusive jurisdiction, a

party must exhaust all administrative remedies

before seeking judicial review of the decision.

Until the party has satisfied this exhaustion

requirement, a trial court lacks subject matter

jurisdiction and must dismiss those claims without

prejudice to refiling.

Administrative Law > Separation of Powers >

Jurisdiction

Administrative Law > Separation of Powers >

Legislative Controls > Scope of Delegated Authority

HN7 Determining whether the Harris County

Sheriff’s Department Civil Service Commission

has exclusive jurisdiction requires examination

and construction of the relevant statutory scheme.

Where there is no express legislative indication of

exclusive jurisdiction, the state supreme court

looks to the legislative scheme to determine if the

legislature intended the Commission to have sole

authority to make the initial determination in a

dispute.

Governments > Local Governments >

Administrative Boards

HN8 Tex. Loc. Gov’t Code Ann. §§ 158.033 and

158.034 permit the creation of a sheriff’s

department civil service system and a commission

in certain counties.

Governments > Local Governments >

Administrative Boards

HN9 See Tex. Loc. Gov’t Code Ann. § 158.035(a).

Administrative Law > Separation of Powers >

Legislative Controls > Scope of Delegated Authority

Governments > Local Governments >

Administrative Boards

Governments > Local Governments > Employees &

Officials

Labor & Employment Law > Employment

Relationships > At Will Employment > Public

Employees

HN10 The Harris County Sheriff’s Department

Civil Service Commission is authorized by statute

to regulate employment matters in the sheriff’s

department. The Harris County Sheriff’s

Department Civil Service Regulations detail the

rules and procedures adopted by the Commission.

Harris County, Tex., Sheriff’s Dep’t Civil Serv.

Regs. R. 1.01-19.01. The regulations address

employment position classification, employment

criteria, disciplinary actions (including layoffs

and dismissals) and appeals, grievances, and

performance evaluations, among other things.

Page 3 of 11

207 S.W.3d 334, *334; 2006 Tex. LEXIS 280, **1

Brett Miller
Harris County, Tex., Sheriff’s Dep’t Civil Serv.

Regs. R. 4.01-.06, 6.01-.02, 12.01-.05, 13.01-.04,

15.01-.08. One of these regulations, Harris County,

Tex., Sheriff’s Dep’t Civil Serv. Regs. R. 12.03(a),

states that no employee shall be subject to any

disciplinary action including termination except

for just cause. The Regulations define ′′disciplinary

action′′ as any action taken against an employee

by the Department due to improper conduct by the

employee that will result in termination,

suspension, demotion, reduction in rank, or refusal

to rehire at the end of a contractual period. Harris

County, Tex., Sheriff’s Dep’t Civil Serv. Regs. R.

12.01.

Labor & Employment Law > Employment

Relationships > At Will Employment > General

Overview

HN11 Absent an express agreement to the

contrary, Texas is an employment-at-will state.

Subject to certain exceptions, employment is

terminable at any time by either party with or

without cause. However, an employer may modify

the employment terms of the at-will status of its

employees.

Administrative Law > Agency Adjudication >

Review of Initial Decisions

Administrative Law > Judicial Review > Standards

of Review > Substantial Evidence

Governments > Local Governments > Employees &

Officials

Labor & Employment Law > Employment

Relationships > At Will Employment > Exceptions

HN12 The Harris County Sheriff’s Department

Civil Service Commission’s rules implement

procedures for disciplinary actions, including

termination for just cause. Harris County, Tex.,

Sheriff’s Dep’t Civil Serv. Regs. R. 12.03(a). The

regulations describe the initial parts of the appellate

process: within the prescribed time periods, an

employee may appeal a disciplinary action to the

sheriff; after that, the employee may appeal the

sheriff’s decision to the Commission. Harris

County, Tex., Sheriff’s Dep’t Civil Serv. Regs. R.

12.04. Tex. Loc. Gov’t Code Ann. § 158.037 then

provides for a substantial evidence review of the

Commission’s decision by the district court. An

employee subject to for-cause termination has a

property interest in continued employment

sufficient to entitle the employee to judicial review

of an administrative decision to terminate

employment.

Administrative Law > Agency Adjudication >

General Overview

Administrative Law > Separation of Powers >

Jurisdiction

Governments > Local Governments >

Administrative Boards

Governments > Local Governments > Employees &

Officials

Labor & Employment Law > Employment

Relationships > At Will Employment > Public

Employees

HN13 Although the statute authorizing the creation

of the Harris County Sheriff’s Department Civil

Service Commission does not contain the words

′′exclusive jurisdiction,′′ as many statutes granting

an administrative body exclusive jurisdiction do,

it authorizes the Commission to extend specified

rights to employees that are not available at

common law. By promulgating Harris County,

Tex., Sheriff’s Dep’t Civil Serv. Regs. R. 12.03(a),

as authorized by the Texas Local Government

Code, the Commission vested Department

employees with for-cause employment status,

which they have only because the Commission

conferred that right on them. To enforce those

rights, employees must follow the procedures

enumerated in the Commission’s rules as

authorized by statute. Once the employees of a

department elect to create a commission, and the

commission’s rules create rights employees would

not have at common law, the commission obtains

exclusive jurisdiction over those matters. Tex.

Loc. Gov’t Code Ann. § 158.032-.033, .035.

Page 4 of 11

207 S.W.3d 334, *334; 2006 Tex. LEXIS 280, **1

Brett Miller
Counsel: For PETITIONER: Mr. Michael A.

Stafford, Mr. Michael R. Hull, HARRIS COUNTY

ATTORNEY, Houston, TX.

For RESPONDENT: Mr. Bruce A. Coana, Mr.

Ajay Choudhary, COANA & ASSOCIATES,

Houston, TX.

For AMICUS CURIAE:Mr. Kristofer S. Monson,

ASSISTANT SOLICITOR GENERAL, Austin,

TX.

Judges: JUSTICE WAINWRIGHT delivered the

opinion of the Court.

Opinion by: J. Dale Wainwright

Opinion

[*336] JUSTICE WAINWRIGHT delivered the

opinion of the Court.

This is an interlocutory appeal of a trial court’s

denial of a jurisdictional plea. Although the plea

was made as part of a motion for summary

judgment, the court of appeals had jurisdiction to

consider the interlocutory appeal under section

51.014(a)(8) of the Texas Civil Practice and

Remedies Code. We conclude that the court erred

in determining that it was without jurisdiction to

consider the appeal. However, we dismiss the

claims relating to the respondent’s reinstatement

to her employment because her failure to exhaust

administrative remedies deprived the trial court of

subject matter jurisdiction over those claims. 1

[**2] I. Factual and Procedural Background

The underlying dispute concerns the interpretation

of an order issued by an administrative body. It is

not an appeal from the administrative order itself.

In a June 1, 2000 letter, the Harris County

Sheriff’s Department terminated Jeanne Long’s

employment as a jailer for violations of the

Department’s employee conduct manual. Long

appealed her termination to the Harris County

Sheriff’s Department Civil Service Commission.

Over a year later on September 6, 2001, the

Commission determined that Long’s termination

was not supported by sufficient evidence and

ordered the Department to reinstate Long with no

loss of seniority or benefits. The Commission

denied Long’s request for reimbursement of

wages. Long did not appeal the Commission’s

decision. In letters dated September 7, 2001, and

November 7, 2001, the Department informed

Long that she would be required to complete a

physical ability test before returning to work.

Long refused to take the test. The Department

maintained its position that because Long had

been absent from duty for more than twelve

months, the Department’s employee manual

required Long to complete the physical ability test

[**3] before returning to work. The

Commission’s order did not mention the test.

On November 13, 2001, Long filed suit in state

district court against Harris County Sheriff Tommy

Thomas and the Harris County Sheriff’s

Department 2

seeking a declaration that she was

entitled to immediately return to work with no

loss of seniority or benefits, without taking any

tests, without re-applying for employment, but

with back pay dating from the Commission’s

order. Long sought a writ of mandamus compelling

Thomas to comply with the Commission’s order,

and she sought a temporary restraining order and

temporary injunction allowing her to return [*337]

to work immediately with no loss of seniority or

benefits and without undergoing additional testing.

Long’s petition also included a retaliation claim

under section 21.055 of the Texas Labor Code.

Thomas asserted a partial plea in bar, contending

1

The respondent’s retaliation claim under section 21.055 of the Texas Labor Code, and claims for attorney’s fees and back pay, are

not part of this interlocutory appeal and remain pending at the trial court.

2

Long later amended her petition nonsuiting all claims against the Department.

Page 5 of 11

207 S.W.3d 334, *334; 2006 Tex. LEXIS 280, **1

Brett Miller
that the trial court ′′should not exercise jurisdiction

over any of Plaintiff’s reinstatement claims

because exclusive or primary jurisdiction over

this matter has been given to the Harris County

Sheriff’s Department Civil Service Commission.′′

The trial court never explicitly ruled on Thomas’s

[**4] partial plea in bar.

Long moved for partial summary judgment on the

declaratory judgment and mandamus actions.

Thomas filed a cross-motion for summary

judgment on the same causes of action, arguing

that the trial court lacked subject matter jurisdiction

over those claims. Arguing in the alternative,

Thomas requested the trial court to decline to

exercise jurisdiction over the matter because the

Commission had primary jurisdiction. Finally,

Thomas argued that even if the trial court had

jurisdiction, he was entitled to judgment as a

matter of law on Long’s mandamus and

declaratory judgment actions. The trial court

entered a partial judgment in favor of Long

declaring that ′′under the Civil Service

Commission’s September 6, 2001 Order, (1)

Plaintiff is entitled to immediately return to work

with no loss of seniority or benefits, (2) Plaintiff

does not need to perform any tests as a condition

to returning to work, and (3) Plaintiff [**5] does

not need to apply for re-employment.′′ On the

same day, the trial court granted Thomas’s motion

for partial summary judgment in part and

dismissed Long’s request for mandamus relief.

The court also entered an order identifying Long’s

claims for retaliation, attorney’s fees, and back

pay as the only remaining claims before the court.

Thomas filed a notice of an interlocutory appeal

to challenge the court’s ′′denial of his Plea to the

Jurisdiction signed by [the trial court] on March 4,

2002.′′

Thomas’s notice also acknowledged that his

′′appeal includes all three of the orders signed by

the Court on March 4, 2002 since all three orders

relate to [Thomas’s] dispute as to [the trial court’s]

jurisdiction.′′ The court of appeals dismissed the

appeal for lack of jurisdiction, explaining that

′′because our record does not contain an order

granting or denying a plea to the jurisdiction, and

because section 51.014(a) does not include an

appeal of the denial of a summary judgment based

on lack of subject matter jurisdiction, that statute

does not explicitly provide that we have

jurisdiction over this interlocutory appeal.′′ 97

S.W.3d 300, 302. Thomas petitioned this Court

[**6] for review.

II. Jurisdiction of this Court

HN1 We have jurisdiction over this interlocutory

appeal because there is a conflict among the

courts of appeals on whether a governmental

unit’s challenge to subject matter jurisdiction is

appealable if raised in a motion for summary

judgment. TEX. GOV’T CODE §§ 22.001(a)(2),

22.225(c);

3

[*338] Tex. Dep’t of Parks &

Wildlife v. Miranda, 133 S.W.3d 217, 223, 47 Tex.

Sup. Ct. J. 386 (Tex. 2004); compare 97 S.W.3d at

302, and Brazos Transit Dist. v. Lozano, 72

S.W.3d 442, 445 (Tex. App.-Beaumont 2002, no

pet.) (dismissing interlocutory appeals from denials

of motions for summary judgment challenging

subject matter jurisdiction for lack of jurisdiction),

with Bexar County v. Gant, 70 S.W.3d 289, 291-92

(Tex. App.-San Antonio 2002, pet. denied), and

Sw. Tex. State Univ. v. Enriquez, 971 S.W.2d 684,

685 (Tex. App.-Austin 1998, pet. denied),

abrogated on other grounds by Kerrville State

Hosp. v. Fernandez, 28 S.W.3d 1, 6, 43 Tex. Sup.

Ct. J. 1036 (Tex. 2000) (assuming jurisdiction

3

The Legislature amended section 22.001 of the Texas Government Code, effective September 1, 2003. Act of June 2, 2003, 78th Leg.,

R.S., Ch. 204, § 1.04, 2003 Tex. Gen. Laws 847, 849-50 (codified as section 22.001(e) of the Texas Government Code). The amendment,

which applies to actions filed on or after September 1, 2003 and therefore does not govern our jurisdiction in this case, provides that

′′one court holds differently from another when there is inconsistency in their respective decisions that should be clarified to remove

unnecessary uncertainty in the law and unfairness to litigants.′′ The Legislature amended section 22.225 to add a similar provision. Act

of June 2, 2003, 78th Leg., R.S. Ch. 204, § 1.02, 2003 Tex. Gen. Laws 847, 848-49 (codified as section 22.225(e) of the Texas

Government Code).

Page 6 of 11

207 S.W.3d 334, *337; 2006 Tex. LEXIS 280, **3

Brett Miller
over interlocutory appeals of jurisdictional

challenges raised in motions for summary

judgments). [**7] We address both issues raised

in this petition for review: (1) whether the court of

appeals had subject matter jurisdiction to address

Thomas’s interlocutory appeal and (2) whether

the trial court had jurisdiction to issue a declaratory

judgment interpreting the Commission’s order.

[**8] III. Jurisdiction of the Court of Appeals

HN2 Generally, appeals may only be taken from

final judgments or orders. See TEX. CIV. PRAC.

& REM. CODE § 51.014; Qwest Commc’ns Corp.

v. AT&T Corp., 24 S.W.3d 334, 336, 43 Tex. Sup.

Ct. J. 600 (Tex. 2000); Jack B. Anglin Co. v. Tipps,

842 S.W.2d 266, 272, 36 Tex. Sup. Ct. J. 205 (Tex.

1998). Section 51.014(a)(8) of the Texas Civil

Practice and Remedies Code provides an

exception to this general rule by allowing an

appeal from an interlocutory order that ′′grants or

denies a plea to the jurisdiction by a governmental

unit as that term is defined in Section 101.001.′′

Thomas’s appeal to the court of appeals challenged

the trial court’s interlocutory orders denying his

motion for partial summary judgment disputing

the trial court’s subject matter jurisdiction. The

court of appeals concluded that it lacked

jurisdiction for two reasons. 97 S.W.3d at 302.

First, it concluded there was no final judgment

disposing of all issues and parties, observing that

one of the trial court’s orders explicitly identified

pending claims, which include claims for

retaliation, attorney’s fees, [**9] and back pay.

Id. Second, the court held that because the ′′record

does not contain an order granting or denying a

plea to the jurisdiction, and because section

51.014(a) does not include an appeal of the denial

of summary judgment based on lack of subject

matter jurisdiction, that statute does not explicitly

provide that [the court of appeals has] jurisdiction

over this interlocutory appeal.′′ Id.

Relying on Speer v. Stover, Long argues that the

trial court properly denied Thomas’s plea because

the Department conceded that the trial court had

jurisdiction over at least one claim. 685 S.W.2d

22, 28 Tex. Sup. Ct. J. 235 (Tex. 1985). In Speer,

this Court held that a trial court’s order sustaining

a misnomered plea in abatement, which challenged

the trial court’s subject matter jurisdiction, was a

final and appealable order. 685 S.W.2d at 23.

Comparing the effect of the two pleas, the Court

stated that ′′sustaining a plea to the jurisdiction

requires dismissal; sustaining a plea in abatement

requires that the claim be abated until removal of

some impediment.′′ Id. Long argues this means if

the trial court lacks jurisdiction over some claims

but not others, it must [**10] deny the plea. We

disagree. As we recognized in American Motorists

Insurance Company v. Fodge, HN3 it is proper

for a trial court to dismiss claims over which it

does not have subject matter jurisdiction but

retain claims in the same case over which it has

jurisdiction. 63 S.W.3d 801, 805, 45 Tex. Sup. Ct.

J. 122 (Tex. 2001) (holding that the trial court

erred in dismissing all claims but the [*339] court

of appeals erred in requiring the reinstatement of

all claims); see also Tex. Highway Dep’t v. Jarrell,

418 S.W.2d 486, 488, 10 Tex. Sup. Ct. J. 522 (Tex.

1967) (′′As applied to a pending claim for relief or

cause of action, a plea to the jurisdiction, if

sustained, would require a dismissal . . . .′′). A trial

court is not required to deny an otherwise

meritorious plea to the jurisdiction or a motion for

summary judgment based on a jurisdictional

challenge concerning some claims because the

trial court has jurisdiction over other claims. See

Fodge, 63 S.W.3d at 805. To the extent some

courts of appeals have held otherwise, we

disapprove of those holdings. See Aledo Indep.

Sch. Dist. v. Choctaw Props., L.L.C., 17 S.W.3d

260, 262-63 (Tex. App.-Waco 2000, no pet.);

Harris County Flood Control Dist. v. PG & E Tex.

Pipeline, L.P., 35 S.W.3d 772, 773 [**11] (Tex.

App.-Houston [1st Dist.] 2000, pet. dism’d w.o.j.),

disavowed on other grounds by City of Houston v.

Northwood Mun. Util. Dist.No. 1, 74 S.W.3d 183

(Tex. App.-Houston [1st Dist.] 2002, no pet.); Life

Mgmt. Ctr. for MH/MR Servs. v. Cruz, 2003 Tex.

Page 7 of 11

207 S.W.3d 334, *338; 2006 Tex. LEXIS 280, **6

Brett Miller
App. LEXIS 10419, No. 08-03-00121-CV, 2003

WL 22923927, at *3-*4 (Tex. App.-El Paso Dec.

11, 2003, no pet.) (mem. op.).

The court of appeals correctly observed that the

record does not contain an order explicitly denying

a plea to the jurisdiction. Thomas did not file a

document titled ′′plea to the jurisdiction′′ with the

trial court. However, Thomas’s summary judgment

motion clearly challenged the trial court’s subject

matter jurisdiction. HN4 The Legislature provided

for an interlocutory appeal when a trial court

denies a governmental unit’s challenge to subject

matter jurisdiction, irrespective of the procedural

vehicle used. 4

TEX. CIV. PRAC. & REM. CODE

§ 51.014(a)(8); Harris County v. Sykes, 136 S.W.3d

635, 638, 47 Tex. Sup. Ct. J. 618 (Tex. 2004); see

also Surgitek, Bristol-Myers Corp. v. Abel, 997

S.W.2d 598, 601, 42 Tex. Sup. Ct. J. 993 (Tex.

1999)(holding that the availability of interlocutory

appeal [**12] from a section 15.003(a) joinder

decision is not ′′constrained by the form or caption

of a pleading′′ but will be determined by ′′the

substance of a motion to determine the relief

sought, not merely its title′′). To the extent some

courts of appeals have held otherwise, we

disapprove of those holdings. See 97 S.W.2d at

302; Lozano, 72 S.W.3d at 445; City of Garland v.

Rutherford, 1998 Tex. App. LEXIS 6006, No.

05-98-00295-CV, 1998 WL 652318, at *4 & n.1

(Tex. App.-Dallas Sept. 24, 1998, no pet.) (not

designated for publication).

HN5 To be entitled to an interlocutory appeal,

section 51.014(a)(8) requires the denial of a

jurisdictional challenge. In this case, none of the

trial court’s orders on the parties’ cross-motions

for summary judgment explicitly denied the relief

sought in the section of Thomas’s motion for

summary judgment challenging the [**13] trial

court’s subject matter jurisdiction. However, the

trial court’s rulings on the merits of some claims

for which Thomas argued the trial court lacked

subject matter jurisdiction constitute an implicit

rejection of Thomas’s jurisdictional challenges.

The Texas Rules of Appellate Procedure only

require that the record show the trial court ruled

on the request, objection, or motion, either

expressly or implicitly. TEX. R. APP. P.

33.1(a)(2)(A). Because a trial court cannot reach

the merits of a case without subject matter

jurisdiction, Tex. Ass’n of Bus. v. Tex. Air Control

Bd., 852 S.W.2d 440, 443, 36 Tex. Sup. Ct. J. 607

(Tex. 1993), a trial court that rules on the merits of

an issue without explicitly rejecting an asserted

jurisdictional [*340] attack has implicitly denied

the jurisdictional challenge. See, e.g., Soberay

Mach. & Equip. Co. v. MRF Ltd., 181 F.3d 759,

762 (6th Cir. 1999); Ahuna v. Dep’t of Hawaiian

Home Lands, 64 Haw. 327, 640 P.2d 1161, 1165

n.9 (Haw. 1982). By ruling on the merits of

Long’s declaratory judgment claim, the trial court

necessarily denied Thomas’s challenge to the

court’s jurisdiction. That implicit [**14] denial

satisfies section 51.014(a)(8) of the Texas Civil

Practice and Remedies Code and gives the court

of appeals jurisdiction to consider Thomas’s

interlocutory appeal.

IV. Jurisdiction of the Trial Court-Exhaustion

of Remedies

Thomas contends that the trial court lacked subject

matter jurisdiction because the Commission had

exclusive jurisdiction over Long’s reinstatement

claims, and Long failed to exhaust her

administrative remedies before filing this suit.

HN6 Whether the Commission has exclusive

jurisdiction over this dispute is a question of law

that we review de novo. Subaru of Am. v. David

McDavid Nissan, Inc., 84 S.W.3d 212, 222, 45

Tex. Sup. Ct. J. 907 (Tex. 2002). Texas district

courts are courts of general jurisdiction with the

power to ′′hear and determine any cause that is

cognizable by courts of law or equity′′ and to

′′grant any relief that could be granted by either

courts of law or equity.′′ TEX. GOV’T CODE §

4 We refer to ′′governmental unit′′ as defined by section 101.001 of the Texas Civil Practice and Remedies Code.

Page 8 of 11

207 S.W.3d 334, *339; 2006 Tex. LEXIS 280, **11

Brett Miller
24.007-.008; see also TEX. CONST. art. V, § 8;

David McDavid Nissan, 84 S.W.3d at 220; Dubai

Petroleum Co. v. Kazi, 12 S.W.3d 71, 75, 43 Tex.

Sup. Ct. J. 412 (Tex. 2000). In contrast,

administrative [**15] bodies only have the powers

conferred on them by clear and express statutory

language or implied powers that are reasonably

necessary to carry out the Legislature’s intent.

David McDavid Nissan, 84 S.W.3d at 220; Tex.

Workers’ Comp. Comm’n v. Patient Advocates of

Tex., 136 S.W.3d 643, 652, 47 Tex. Sup. Ct. J. 607

(Tex. 2004). When the Legislature grants an

administrative body the sole authority to make an

initial determination in a dispute, the agency has

exclusive jurisdiction over the dispute. David

McDavid Nissan, 84 S.W.3d at 221. If an

administrative body has exclusive jurisdiction, a

party must exhaust all administrative remedies

before seeking judicial review of the decision. Id.

Until the party has satisfied this exhaustion

requirement, the trial court lacks subject matter

jurisdiction and must dismiss those claims without

prejudice to refiling. Id.

HN7 Determining whether the Commission has

exclusive jurisdiction requires examination and

construction of the relevant statutory scheme. Id.

Here, there is no express legislative indication of

exclusive jurisdiction. Thus, we look to the

legislative scheme to determine if the Legislature

intended [**16] the Commission to have sole

authority to make the initial determination in this

dispute. Id. at 223.

HN8 Sections 158.033 and 158.034 of the Texas

Local Government Code permit the creation of a

sheriff’s department civil service system and a

commission in certain counties. Thomas contends

that subsection 158.035(a) of the Texas Local

Government Code vests the Commission with

exclusive jurisdiction over the dispute in this case.

Section 158.035, titled ′′Powers of the

Commission,′′ provides in relevant part:

(a) HN9 The commission shall adopt,

publish, and enforce rules regarding:

(1) selection and classification of

employees;

(2) competitive examinations;

(3) promotions, seniority, and tenure;

(4) layoffs and dismissals;

(5) disciplinary actions;

(6) grievance procedures;

(7) the rights of employees during an

internal investigation; and

[*341] (8) other matters relating to the

selection of employees and the procedural

and substantive rights, advancement,

benefits, and working conditions of

employees.

TEX. LOC. GOV’T CODE § 158.035(a). Thus,

HN10 the Commission is authorized [**17] by

statute to regulate employment matters in the

sheriff’s department. The Harris County Sheriff’s

Department Civil Service Regulations detail the

rules and procedures adopted by the Commission.

HARRIS COUNTY SHERIFF’S DEP’T CIVIL

SERV. REGS. R. 1.01-19.01. The regulations

address employment position classification,

employment criteria, disciplinary actions

(including layoffs and dismissals) and appeals,

grievances, and performance evaluations, among

other things. Id. R. 4.01-.06, 6.01-.02, 12.01-.05,

13.01-.04, 15.01-.08. One of these regulations,

Rule 12.03(a), states that ′′no employee shall be

subject to any disciplinary action [including

termination] except for just cause.′′

5

[**18] HN11 Absent an express agreement to the

contrary, Texas is an employment-at-will state.

City of Odessa v. Barton, 967 S.W.2d 834, 835, 41

5

The Regulations define ′′Disciplinary action′′ as ′′any action taken against an employee by the Department due to improper conduct

by the employee that will result in termination, suspension, demotion, reduction in rank, or refusal to rehire at the end of a contractual

period.′′ HARRIS COUNTY SHERIFF’S DEP’T CIVIL SERV. REGS. R. 12.01.

Page 9 of 11

207 S.W.3d 334, *340; 2006 Tex. LEXIS 280, **14

Brett Miller
Tex. Sup. Ct. J. 663 (Tex. 1998). Subject to certain

exceptions, employment is terminable at any time

by either party with or without cause. Barton, 967

S.W.2d at 835; see Fed. Express Corp. v.

Dutschmann, 846 S.W.2d 282, 283, 36 Tex. Sup.

Ct. J. 530 (Tex. 1993); see also East Line & Red

River R.R. Co. v. Scott, 72 Tex. 70, 10 S.W. 99, 102

(1888). However, an employer may modify the

employment terms of the at-will status of its

employees. Barton, 967 S.W.2d at 835. In this

case, HN12 the Commission’s rules implement

procedures for disciplinary actions, including

termination for just cause. HARRIS COUNTY

SHERIFF’S DEP’T CIVIL SERV. REGS. R.

12.03(a). The regulations describe the initial parts

of the appellate process: within the prescribed

time periods, an employee may appeal a

disciplinary action to the sheriff; after that, the

employee may appeal the sheriff’s decision to the

Commission. Id. R. 12.04. Section 158.037 of the

Texas Local Government Code then provides for a

′′substantial evidence′′ [**19] review of the

Commission’s decision by the district court. 6 As

we have recognized, an employee subject to

for-cause termination has a property interest in

continued employment sufficient to entitle the

employee to judicial review of an administrative

decision to terminate employment. Barton, 967

S.W.2d at 835-36.

HN13 Although the statute authorizing the creation

of the Commission does not contain the words

′′exclusive jurisdiction,′′ as many statutes granting

an administrative body exclusive jurisdiction do,

it authorizes the Commission to extend specified

rights to employees that are not available at

common law. By promulgating Rule 12.03(a), as

authorized by the Local Government Code, the

Commission vested Department employees with

for-cause employment status, which they have

only because [**20] the Commission conferred

that right on them. To enforce those rights,

employees must follow the procedures enumerated

in the Commission’s rules as authorized by statute.

[*342] See Bullock v. Amoco Prod. Co., 608

S.W.2d 899, 901, 24 Tex. Sup. Ct. J. 15 (Tex.

1980). We hold that once the employees of a

department elect to create a commission, and the

commission’s rules create rights employees would

not have at common law, the commission obtains

exclusive jurisdiction over those matters. See

TEX. LOC. GOV’T CODE § 158.032-.033, .035.

We therefore conclude that the Commission had

exclusive jurisdiction over the employment dispute

in this case. Long exercised her rights under the

Commission’s scheme when she appealed her

termination by the sheriff to the Commission. Her

appeal was successful--the Commission overturned

Long’s termination and ordered that she be allowed

to return to work with no loss of seniority or

benefits. Nothing in our record indicates whether

Thomas or Long raised the physical ability test

requirement with the Commission, and the

Commission did not address the issue in its order.

In a letter dated the day after the Commission’s

order, the Department [**21] notified Long that,

according to its interpretation of the order, she

would be required to complete a physical ability

test upon her return to work after a year-long

absence. Long did not return to the Commission

to obtain a decision regarding the Department’s

enforcement of a physical ability test requirement.

If she had, and she received an adverse decision,

she could have appealed to the district court.

Instead, she bypassed the Commission and filed

this suit seeking interpretation and enforcement of

the Commission’s first order. Although Long

obtained a decision in her favor regarding

reinstatement, the law requires Long to exhaust

her administrative remedies by obtaining a

Commission decision regarding Thomas’s refusal

to allow her to return to work without completing

a physical ability test. She failed to do so. For

these reasons, the trial court did not have subject

matter jurisdiction over Long’s reinstatement

6

Presumably because Long’s appeal to the Commission was successful, she did not pursue judicial review of the order. The

constitutionality of the standard of review provided by the Code was not challenged.

Page 10 of 11

207 S.W.3d 334, *341; 2006 Tex. LEXIS 280, **18

Brett Miller
claims.

The fact that Long fashioned this suit as a

declaratory judgment action does not change this

analysis. The subject matter of her declaratory

judgment action--the interpretation of the

Commission’s order as it applies to completing a

physical ability test--is [**22] the same subject

matter over which the Legislature intended the

Commission to exercise exclusive jurisdiction.

The trial court was without subject matter

jurisdiction to issue a declaratory judgment in this

case and erred in denying Thomas’s jurisdictional

challenge.

V. Conclusion

For the reasons stated above, we reverse the court

of appeals’ judgment and render judgment

dismissing for lack of subject matter jurisdiction

Long’s claims relating to her reinstatement.

J. Dale Wainwright

Justice

OPINION DELIVERED: April 21, 2006

Page 11 of 11

207 S.W.3d 334, *342; 2006 Tex. LEXIS 280, **21

Brett Miller
| | Neutral

As of: April 9, 2015 12:38 PM EDT

Am. Star Energy & Minerals Corp. v. Stowers

Supreme Court of Texas

October 14, 2014, Argued; February 27, 2015, Opinion Delivered

NO. 13-0484

Reporter

2015 Tex. LEXIS 161; 58 Tex. Sup. J. 401

Notice: PUBLICATION STATUS PENDING.

CONSULT STATE RULES REGARDING

PRECEDENTIAL VALUE.

Prior History: [*1] ON PETITION FOR

REVIEW FROM THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS.

Am. Star Energy & Minerals Corp. v. Stowers,

405 S.W.3d 905, 2013 Tex. App. LEXIS 5933 (Tex.

App. Amarillo, 2013)

Core Terms

partnership, partner, limitations period, entity,

limitations, accrued, citations, accrual, Oil, cause

of action, court of appeals, statute of limitations,

trial court, prerequisites, satisfaction, cases,

separate suit, obligations, parties

Case Summary

Overview

HOLDINGS: [1]-While the judgment creditor

could have named the partners in the original suit,

doing so would not change the result as the

judgment creditor would not have been able to

pursue the partners’ assets until after judgment

was finalized in 2009, Tex. Bus. Orgs. Code Ann.

§ 152.306(b)(2)(C)(iii); [2]-There was no evidence

that the partnership’s agreement with the judgment

creditor imposed any obligation on the partners or

gave the judgment creditor the right to compel

anything of the partners; [3]-The suit was to

enforce liability created by the Texas Revised

Partnership Act, not the agreement, but it was still

based on the judgment creditor’s underlying

contract claim, consistent with § 152.306(b)(2);

[4]-The partners had the same opportunity to

contest their liability as they would have had were

they sued within the underlying limitations period.

Outcome

Judgment reversed.

LexisNexis® Headnotes

Business & Corporate Law > ... > Management

Duties & Liabilities > Rights of Partners > Authority

to Act

Business & Corporate Law > ... > Management

Duties & Liabilities > Rights of Partners >

Partnership Property

HN1 A Texas partnership is an entity distinct from

its partners, Tex. Bus. Orgs. Code Ann. § 152.056.

Though that has not always been clear, the

Legislature unequivocally embraced he entity

theory of partnership when it enacted the Texas

Revised Partnership Act (TRPA), since codified in

the Texas Business Organizations Code. As an

independent entity, a partnership may enter into

contracts in its own name, may own its own

property, and may sue and be sued in its own

name, Tex. Bus. Orgs. Code Ann. § 152.101; Tex.

R. Civ. P. 28.

Business & Corporate Law > ... > Management

Duties & Liabilities > Causes of Action >

Partnership Liabilities

Brett Miller
HN2 Under the Texas Revised Partnership Act

(TRPA), a partner remains jointly and severally

liable for all obligations of the partnership, Tex.

Bus. Orgs. Code Ann. § 152.304(a). This personal

liability, undoubtedly an aggregate-theory feature,

is a defining characteristic of the partnership form

and distinguishes it from other entity types.

Through its scheme for enforcing that liability,

however, the TRPA imposes even on this aggregate

feature an entity aspect. A judgment against a

partnership is not by itself a judgment against a

partner, so a creditor must obtain a judgment

against the partner individually, Tex. Bus. Orgs.

Code Ann. § 152.306(a). A creditor may attempt

to do so in the suit against the partnership or in a

separate suit, Tex. Bus. Orgs. Code Ann. § 152.305.

It may not, however, seek satisfaction of the

judgment against a partner until a judgment is

rendered against the partnership, §

152.306(b)(2)(A).

Business & Corporate Law > ... > Management

Duties & Liabilities > Causes of Action >

Partnership Liabilities

HN3 The Texas Revised Partnership Act (TRPA)

generally requires time to collect the debt from

the partnership first: the judgment against the

partnership must go unsatisfied for ninety days

before a creditor may proceed against a partner

and his assets, Tex. Bus. Orgs. Code Ann. §

152.306(b)(2)(C). The enforcement of a partner’s

liability is considered the most confusing aspect

of partnership law. Still, the passage of time, in

conjunction with the plain language of the TRPA’s

text, forecloses any argument that the Legislature

rejected any aspect of the entity theory.

Governments > Legislation > Statute of

Limitations > Time Limitations

HN4 Generally a cause of action accrues when

facts come into existence that authorize a claimant

to seek a judicial remedy, when a wrongful act

causes some legal injury, or whenever one person

may sue another. The resulting limitations period

functions to compel the exercise of a right of

action within a reasonable time. However, when

the Legislature employs the term ′′accrues′′ without

an accompanying definition, the courts must

determine when that cause of action accrues and

thus when the statute of limitations commences to

run. To determine accrual in any particular case is

to establish a general rule of law for a class of

cases.

Governments > Legislation > Statute of

Limitations > Time Limitations

Business & Corporate Law > ... > Management

Duties & Liabilities > Causes of Action >

Partnership Liabilities

Business & Corporate Law > ... > Management

Duties & Liabilities > Causes of Action > Derivative

Actions

HN5 The appellate court is left to establish a rule

of accrual for partner-liability suits, which must

be founded on reason and justice. Reason requires

the appellate court to consider the Texas Revised

Partnership Act’s overall scheme and the

legislative intent expressed therein. Justice requires

the appellate court to examine the rule’s policy

implications and equity of its consequences. In

light of a partnership’s status as a separate entity

and the statutory prerequisites to proceeding

against a partner, the cause of action against a

partner does not accrue until a creditor can proceed

against a partner’s assets—that is, generally at the

expiration of the ninety-day satisfaction period.

Business & Corporate Law > ... > Management

Duties & Liabilities > Causes of Action >

Partnership Liabilities

Business & Corporate Law > ... > Management

Duties & Liabilities > Rights of Partners >

Partnership Property

HN6 As a result of the partnership’s statutorily

confirmed status as a separate entity, a

partnership’s acts are only its own, not a partner’s.

Individual partners do not own partnership income

Page 2 of 11

2015 Tex. LEXIS 161, *1

Brett Miller
and profits while they remain in the partnership’s

hands and have not been distributed to the partners.

Business & Corporate Law > ... > Management

Duties & Liabilities > Causes of Action >

Partnership Liabilities

HN7 The statutory prerequisites to enforcement

make a partner’s liability not only derivative of

the partnership’s liability, but contingent on it for

all practical purposes. If a partnership obligates

itself to pay a sum or perform a service under a

contract, the individual partners, though liable for

the obligation under the Texas Revised Partnership

Act, cannot immediately be called on to pay or

perform in lieu of the partnership. In either case,

the claim must be litigated against the partnership

so that its obligation is determined, reduced to

damages, and fixed in a judgment, Tex. Bus. Orgs.

Code § 152.306(b)(2)(A). Second, the

plaintiff-creditor must have ninety days’

opportunity to satisfy that judgment from the

partnership’s assets, § 152.306(b)(2)(C).

Business & Corporate Law > ... > Management

Duties & Liabilities > Causes of Action >

Partnership Liabilities

HN8 Considering the derivative and contingent

nature of that liability, the only obligation for

which a partner is really responsible is to make

good on the judgment against the partnership, and

generally only after the partnership fails to do so.

The significance of joint and several liability in

the partnership context is that once that the

prerequisites are met, a creditor can seek the

whole debt from one party and is not required to

join all the partners, obtain judgments against

them, or apportion liability among them. This

scheme defers a partner’s liability, and as a result

a creditor cannot seek a judicial remedy from a

partner until these prerequisites are met. Because

a creditor’s rights against a partner do not arise

when the partnership incurs an obligation, the

appellate court defines accrual as occurring when

those rights arise.

Business & Corporate Law > ... > Management

Duties & Liabilities > Causes of Action >

Partnership Liabilities

HN9 The Texas Revised Partnership Act allows a

partner to be sued in the action against the

partnership or in a separate action, and the

appellate court’s definition of accrual in an action

against the partner is consistent with that

permissive rule, Tex. Bus. Orgs. Code Ann. §

152.305. Especially considering its enforcement

scheme, this rule suggests the Legislature considers

the collection action to be separate from the

underlying litigation. The only practical reason to

sue a partner separately is to be able to sue him

later—a concurrent separate suit would

presumably be consolidated or sit pending

disposition of the case against the partnership.

The most likely time, if not the only logical time,

a plaintiff would do so is when the partnership

fails to satisfy the judgment. In allowing separate

suits, the Legislature must have contemplated that

at least some subsequent actions against partners

would be brought outside of the original limitations

period.

Business & Corporate Law > ... > Management

Duties & Liabilities > Causes of Action > General

Overview

Governments > Legislation > Statute of

Limitations > Time Limitations

HN10 Limitations exist to compel the exercise of

a right of action within a reasonable time so that

the opposing party has a fair opportunity to

defend while witnesses are available. In the

partnership context, these concerns are addressed

by the limitations period applying to the underlying

cause of action against a partnership.

Business & Corporate Law > ... > Management

Duties & Liabilities > Causes of Action >

Partnership Liabilities

HN11 A judgment against a partnership is not by

itself a judgment against a partner.

Page 3 of 11

2015 Tex. LEXIS 161, *1

Brett Miller
Business & Corporate Law > General Partnerships >

Formation > Partnership Agreements

HN12 The partnership form has built-in

mechanisms to provide further notice of any

impending liability. First, each partner has a right

to manage and conduct partnership business, Tex.

Bus. Orgs. Code Ann. § 152.203(a). When a

partnership is sued, the litigation presumably

becomes part of that business. Second, each

partner owes to the others a duty of care, Tex. Bus.

Orgs. Code Ann. § 152.204(a)(2). When a

partnership is served with a lawsuit, that duty may

require the partner served to apprise the other

partners. Third, partners can agree to provide

notice of pending litigation to one another in their

partnership agreement, Tex. Bus. Orgs. Code Ann.

§ 152.002.

Business & Corporate Law > ... > Management

Duties & Liabilities > Causes of Action >

Partnership Liabilities

HN13 A party doing business with a partnership

does so knowing that if the partnership fails on its

obligations, relief is not wholly subject to the

adequacy of the partnership assets. Conversely,

individuals who choose the partnership form as

the vehicle for their enterprise do so knowing that

their personal assets are on the line. Equity

demands the court leave these expectations

undisturbed where a plaintiff proceeds as the law

allows.

Judges: JUSTICE BROWN delivered the opinion

of the Court.

Opinion by: Jeffrey V. Brown

Opinion

In this case we must decide whether Texas

partnership law requires a plaintiff seeking to

enforce a partner’s liability for a partnership debt

to sue the partner within the limitations period on

the underlying claim against the partnership. Here,

a judgment creditor attempted to collect from a

partnership after litigating a contract claim for

over a decade and a half, only to find the

partnership insolvent. When the creditor sought a

judgment against the individual partners, the trial

court ruled the limitations period began when the

underlying cause of action accrued. Because that

period had passed, limitations precluded pursuit

of the partners’ assets. The court of appeals

affirmed. We hold today that the limitations period

against a partner generally does not commence

until after final judgment against the partnership

is entered. Because this action was brought within

that period, we reverse the court of appeals’

judgment.

I

In 1980, the four petitioners (together, the Partners)

formed S & J Investments, a Texas general

partnership, to [*2] invest in and manage certain

oil and gas properties. S & J and American Star

Energy and Minerals Corporation were parties to

an agreement that governed operation of those

properties. In the early 1990s, American Star sued

S & J for breach of that agreement and eventually

prevailed on its claims. S & J appealed that

judgment, and a court of appeals reversed it in

part and remanded the case to the trial court. See

S & J Invs. v. Am. Star Energy & Minerals Corp.,

No. 07-99-0090-CV, 2001 Tex. App. LEXIS 7730,

2001 WL 1380027, at *6 (Tex. App.—Amarillo

Nov. 7, 2001, pet. denied) (not designated for

publication). In 2007, the trial court awarded

American Star a second judgment, and S & J

again appealed. The court of appeals affirmed that

judgment, and we denied review of its decision.

See S & J Invs. v. Am. Star Energy & Minerals

Corp., No. 07-07-0357-CV, 2008 Tex. App. LEXIS

5078, 2008 WL 2669665, at *5 (Tex.

App—Amarillo July 8, 2008, pet. denied) (mem.

op.).

S & J owes American Star $227,884.46 under the

judgment. But S & J proved to be undercapitalized,

Page 4 of 11

2015 Tex. LEXIS 161, *1

Brett Miller
and its assets cannot satisfy the judgment debt. In

June 2010, American Star brought this action

seeking a judgment against the Partners

individually. In response, the Partners argued the

action was barred by the four-year statute of

limitations that applies to the underlying

breach-of-contract claim. Both sides moved for

summary judgment. The trial court granted the

[*3] Partners’ motion and ordered that American

Star take nothing. A divided court of appeals

affirmed, holding the limitations period began

when the underlying breach-of-contract claim

against the partnership accrued, barring this suit.

405 S.W.3d 905, 906-07 (Tex. App.—Amarillo

2013). American Star sought this review.

II

HN1 A Texas partnership is ′′an entity distinct

from its partners.′′ TEX. BUS. ORGS. CODE § 152.056.

Though that has not always been clear, the

Legislature ′′’unequivocally embrace[d] the entity

theory of partnership’′′ when it enacted the Texas

Revised Partnership Act (TRPA), since codified in

the Texas Business Organizations Code.1

In re

Allcat Claims Serv., L.P., 356 S.W.3d 455, 464

(Tex. 2011) (quoting TEX. REV. CIV. STAT. ANN. art.

6132b-2.01 cmt. (Vernon Supp. 2010) (Comment

of Bar Committee—1993)) (alteration in original).

As an independent entity, a partnership may enter

into contracts in its own name, may own its own

property, and may sue and be sued in its own

name. See TEX. BUS. ORGS. CODE § 152.101; TEX. R.

CIV. P. 28.

Nonetheless,HN2 under the TRPA, a partner

remains ′′jointly and severally liable for all

obligations [*4] of the partnership.′′ TEX. BUS.

ORGS. CODE § 152.304(a). This personal liability,

undoubtedly an aggregate-theory feature, is a

defining characteristic of the partnership form and

distinguishes it from other entity types. Cf. id. §

152.801(a) (′′[A] partner is not personally liable .

. . for any obligation of the partnership incurred

while the partnership is a limited liability

partnership.′′); id. § 101.114 (′′[A] member or

manager is not liable for a debt, obligation, or

liability of a limited liability company . . . .′′);

Willis v. Donnelly, 199 S.W.3d 262, 271 (Tex.

2006) (′′A bedrock principle of corporate law is

that an individual can incorporate a business and

thereby normally shield himself from personal

liability for the corporation’s contractual

obligations.′′) (collecting cases); see also 1 ALAN

R. BROMBERG & LARRY E. RIBSTEIN, BROMBERG AND

RIBSTEIN ON PARTNERSHIP § 1.03(c)(4) (2012) (′′The

personal liability of partners is perhaps the most

important aggregate feature of partnership . . . .′′).

Through its scheme for enforcing that liability,

however, the TRPA imposes even on this aggregate

feature an entity aspect. See TEX. REV. CIV. STAT.

ANN. art. 6132b-3.05 cmt. (Vernon Supp. 2010)

(Comment of Bar Committee—1993) (stating the

TRPA’s enforcement provisions ′′are consistent

with the emphasis [*5] on the partnership as an

entity′′). ′′A judgment against a partnership is not

by itself a judgment against a partner,′′ so a

creditor must obtain a judgment against the partner

individually. TEX. BUS. ORGS. CODE § 152.306(a). A

creditor may attempt to do so in the suit against

the partnership or in a separate suit. Id. § 152.305.

It may not, however, seek satisfaction of the

judgment against a partner until a judgment is

rendered against the partnership. Id. §

152.306(b)(2)(A). On top of that,HN3 the TRPA

generally requires time to collect the debt from

the partnership first: the judgment against the

partnership must go unsatisfied for ninety days

before a creditor may proceed against a partner

and his assets.2

Id. § 152.306(b)(2)(C). The

enforcement of a partner’s liability is considered

1

The parties disagree whether the TRPA or the recodified version applies to this case. There is no substantive difference in the

provisions we apply today. Though we refer to the law applied as TRPA, we cite to the codified version for practicality’s sake.

2

The TRPA allows a creditor to forego this satisfaction period if (1) the partnership is in bankruptcy, (2) the parties have agreed to

waive the period, (3) a [*6] court orders so after finding that the partnership assets are clearly insufficient or that the satisfaction period

Page 5 of 11

2015 Tex. LEXIS 161, *2

Brett Miller
the most confusing aspect of partnership law. See

ROBERT A. RAGAZZO & FRANCES S. FENDLER, CLOSELY

HELD BUSINESS ORGANIZATIONS 193 (2d ed. 2012)

(quoting 2 BROMBERG & RIBSTEIN, supra, § 5.08(a)).

Still, ′′[t]he passage of time, in conjunction with

the plain language of the TRPA’s text, forecloses

any argument that the Legislature rejected any

aspect of the entity theory.′′ Allcat, 356 S.W.3d at

467.

III

Despite the Legislature’s efforts to define the

relationship between a partner and the partnership

and to control the circumstances under which a

partner’s liability may be enforced, it did not

expressly dictate when a suit against a partner

must be brought. The Partners argue that because

American Star could have sued them in its original

suit against S & J, this cause of action accrued and

limitations on this suit began to run at the same

time as on the suit against S & J—at the breach of

the underlying agreement. American Star, on the

other hand, insists the Partners owed no obligation

until the judgment against S & J became final in

2009, and the limitations period began then. The

parties agree that a four-year limitations period

applies to this action. They further acknowledge

this action was brought more than four years after

the underlying cause of action accrued but within

four years of the judgment [*7] against S & J.

HN4 Generally a cause of action accrues ′′when

facts come into existence [that] authorize a

claimant to seek a judicial remedy,′′ ′′when a

wrongful act causes some legal injury,′′ or

′′whenever one person may sue another.′′ Exxon

Corp. v. Emerald Oil & Gas Co., 348 S.W.3d 194,

202 (Tex. 2011) (citations omitted); S.V. v. R.V.,

933 S.W.2d 1, 4 (Tex. 1996) (citations omitted);

Luling Oil & Gas Co. v. Humble Oil & Ref. Co.,

144 Tex. 475, 191 S.W.2d 716, 721 (Tex. 1945)

(citation omitted). The resulting limitations period

functions ′′to compel the exercise of a right of

action within a reasonable time.′′ Moreno v.

Sterling Drug, Inc., 787 S.W.2d 348, 351 (Tex.

1990) (citation omitted). However, ′′[w]hen the

[L]egislature employs the term ’accrues’ without

an accompanying definition, the courts must

determine when that cause of action accrues and

thus when the statute of limitations commences to

run.′′ Id. at 351-52, 354 (refusing to apply the

discovery rule to a wrongful-death action, but

noting that it would have applied had the

applicable statute of limitations not specifically

fixed the point of accrual). ′′’[T]o determine

[accrual] in any particular case is to establish a

general rule of law for a class of cases . . . .’′′ Id.

at 351 (quoting Fernandi v. Strully, 35 N.J. 434,

173 A.2d 277, 285 (N.J. 1961)) (other citations

omitted).

The statutes of limitations applicable here use the

term ′′accrues′′ but do not specify when accrual

occurs. Compare TEX. CIV. PRAC. & REM. CODE §

16.004(a)(3) (providing limitations period for a

debt cause of action), and id. § 16.051 (providing

residual [*8] limitations period), with id. §

16.003(b) (′′The cause of action [for wrongful

death] accrues on the death of the injured person.′′).

HN5 We are thus left to establish a rule of accrual

for partner-liability suits, which ′′’must be founded

on reason and justice.’′′ Moreno, 787 S.W.2d at

351 (quoting Fernandi, 173 A.2d at 285) (other

citations omitted). Reason requires us to consider

the TRPA’s overall scheme and the legislative

intent expressed therein. See Tex. Dep’t of Transp.

v. City of Sunset Valley, 146 S.W.3d 637, 642 (Tex.

2004) (stating ′′[w]e must read the statute as a

whole′′ and ′′consider the objective the law seeks

to obtain′′ (citations omitted)). Justice requires us

to examine the rule’s policy implications and

equity of its consequences. In light of a

partnership’s status as a separate entity and the

statutory prerequisites to proceeding against a

partner, we hold that the cause of action against a

is excessively burdensome, or (4) the partner’s liability arises independently of his status as a partner. TEX. BUS. ORGS. CODE § 152.306(c).

None of those exceptions apply here.

Page 6 of 11

2015 Tex. LEXIS 161, *5

Brett Miller
partner does not accrue until a creditor can proceed

against a partner’s assets—that is, generally at the

expiration of the ninety-day satisfaction period.3

A

HN6 As a result of the partnership’s statutorily

confirmed status as a separate entity, a

partnership’s acts are only its own, not a partner’s.

[*9] Cf. Allcat, 356 S.W.3d at 468 (′′Individual

partners do not own [partnership income and

profits] while they remain in the partnership’s

hands and have not been distributed to the

partners.′′ (citations omitted)). Here, it was S & J

that was party to and breached the agreement with

American Star. The Partners, separate entities by

statute, were not in privity with American Star,

and they committed no wrongful act and caused

no legal injury. See S.V., 933 S.W.2d at 4. Surely,

the Partners are liable for S & J’s breach, but only

by operation of the statute. An effect of the entity

theory is that a partner’s liability is wholly

derivative of the partnership’s liability.

HN7 The statutory prerequisites to enforcement

make a partner’s liability not only derivative of

the partnership’s liability, but contingent on it for

all practical purposes. If a partnership obligates

itself to pay a sum or perform a service under a

contract, the individual partners, though liable for

the obligation under the TRPA, cannot

immediately be called on to pay or perform in lieu

of the partnership. In either case, the claim must

be litigated against the partnership so that its

obligation is determined, reduced to damages, and

fixed in a judgment. See TEX. BUS. [*10] ORGS.

CODE § 152.306(b)(2)(A). Second, the

plaintiff-creditor must have ninety days’

opportunity to satisfy that judgment from the

partnership’s assets. Id. § 152.306(b)(2)(C).

HN8 Considering the derivative and contingent

nature of that liability, the only obligation for

which a partner is really responsible is to make

good on the judgment against the partnership, and

generally only after the partnership fails to do so.

See 1 BROMBERG & RIBSTEIN, supra, § 1.03(c)(4)

(′′Under [the entity theory], the partners are

essentially guarantors of an independent

partnership debt rather than being directly

responsible.′′); cf. UNIF. P’SHIP ACT § 307 cmt. 4

(1997) (′′[The Revised Uniform Partnership Act’s

exhaustion requirement] respects the concept of a

partnership as an entity and makes partners more

in the nature of guarantors than principal debtors

on every partnership debt.′′). The significance of

joint and several liability in the partnership context

is that once that the prerequisites are met, a

creditor can seek the whole debt from one party

and is not required to join all the partners, obtain

judgments against them, or apportion liability

among them. Cf. 2 BROMBERG & RIBSTEIN, supra, §

5.08(g) (stating the exhaustion requirement defeats

the joint-and-several characterization). This

scheme defers a partner’s [*11] liability, and as a

result a creditor cannot seek a judicial remedy

from a partner until these prerequisites are met.

See Exxon Corp., 348 S.W.3d at 202. Because a

creditor’s rights against a partner do not arise

when the partnership incurs an obligation, we

define accrual as occurring when those rights

arise. See S.V., 933 S.W.2d at 3 (′′[Limitations]

quicken diligence by making [a claim] in some

measure equivalent to a right . . . .′′ (quoting

Gautier v. Franklin, 1 Tex. 732, 739 (1847))

(internal quotation marks omitted)).

HN9 The TRPA allows a partner to be sued in the

action against the partnership or in a separate

action, and our definition of accrual in an action

against the partner is consistent with that

permissive rule. See TEX. BUS. ORGS. CODE §

152.305. Especially considering its enforcement

scheme, this rule suggests the Legislature considers

the collection action to be separate from the

underlying litigation. The only practical reason to

sue a partner separately is to be able to sue him

3 Because the satisfaction period applies here, we do not address accrual when a creditor may proceed directly against a partner under

Texas Business Organizations Code section 152.306(c).

Page 7 of 11

2015 Tex. LEXIS 161, *8

Brett Miller
later—a concurrent separate suit would

presumably be consolidated or sit pending

disposition of the case against the partnership.

The most likely time, if not the only logical time,

a plaintiff would do so is when the partnership

fails to satisfy the judgment. Though the time

required here to obtain [*12] the judgment against

S & J is probably extraordinary, this case illustrates

that litigation of such claims can continue well

beyond the applicable limitation periods. In

allowing separate suits, the Legislature must have

contemplated that at least some subsequent actions

against partners would be brought outside of the

original limitations period. See UNIF. P’SHIP ACT §

307 cmt. 2 (1997) (′′[Allowing separate suit of

partners] will simplify and reduce the cost of

litigation, especially in cases of small claims

where there are known to be significant partnership

assets and thus no necessity to collect judgment

out of the partners’ assets.′′). While American Star

could have named the Partners in the original suit,

doing so would not change the result here:

American Star would not have been able to pursue

the Partners’ assets until after the judgment was

finalized in 2009. See TEX. BUS. ORGS. CODE §

152.306(b)(2)(C)(ii) (providing the satisfaction

period as to a contested partnership judgment

begins only once a stay on execution expires).

Despite this specific statutory context, the Partners

and the court of appeals would apply to this suit

the general rule of accrual as stated in Luling Oil

& Gas: ′′[W]henever one person may [*13] sue

another[,] a cause of action has accrued.′′ 191

S.W.2d at 721 (citation omitted). That rule is not,

however, universal. For example, a cause of

action for indemnity does not accrue ′′until the

indemnitee’s liability to the party seeking damages

becomes fixed and certain,′′ generally by a

judgment. Ingersoll-Rand Co. v. Valero Energy

Corp., 997 S.W.2d 203, 208 (Tex. 1999) (citations

omitted). Still, ′′an indemnitee may bring a claim

against an indemnitor before the judgment is

assigned against the indemnitee′′—before the

cause of action accrues and before limitations

begin to run. Id. at 209 (citing Getty Oil Co. v. Ins.

Co. of N. Am., 845 S.W.2d 794, 799 (Tex. 1992));

City of San Antonio v. Talerico, 98 Tex. 151, 81

S.W. 518, 520 (Tex. 1904) (′′It is permitted by our

law to bring into the suit against it the party whom

it seeks to hold liable as an indemnitor, . . . but this

does not make the limitation applicable to the

cause of action of the plaintiff control its action

over against the indemnitor.′′). This rule is based

on our interest in judicial economy. See Getty Oil,

845 S.W.2d at 799 (′′Forcing the indemnity suit to

wait for judgment in the liability suit ’would

contravene the policy of the courts to encourage

settlements and to minimize litigation.’′′ (quoting

K & S Oil Well Serv., Inc. v. Cabot Corp., 491

S.W.2d 733, 739 (Tex. Civ. App.—Corpus Christi

1973, writ ref’d n.r.e.))).

Similarly, Luling Oil & Gas’s rule does not

readily apply to the partnership-liability context.

In that case, we addressed a garden-variety contract

action between a seller and buyer of [*14] oil and

gas interests. See 191 S.W.2d at 718-19, 721-22

(noting the contract ′′fixed the rights and

obligations of the parties′′ and gave the seller ′′the

right to compel′′ the relief sought). ′′In this

situation,′′ we held, ′′the statute of limitation

begins to run at the time when a suit could be

commenced upon the claim asserted.′′ Id. at 722

(emphasis added) (citation omitted). Here, there is

no evidence that S & J’s agreement with American

Star imposed any obligation on the Partners or

gave American Star the right to compel anything

of the Partners. Further, the TRPA’s scheme

mirrors aspects of our indemnity jurisprudence

and serves as a legislative basis for excepting suits

against partners from the general accrual rule.

The Partners and the court of appeals also rely on

the TRPA’s requirement that the judgment against

a partner must be ′′based on the same claim′′ as

the judgment against the partnership to argue this

suit is really a suit on the underlying contract

obligation. See TEX. BUS. ORGS. CODE §

152.306(b)(2). If the judgment created an

Page 8 of 11

2015 Tex. LEXIS 161, *11

Brett Miller
independent cause of action, the Partners argue,

American Star could not satisfy this statutory

prerequisite. We are not persuaded. This suit is to

enforce liability created by the TRPA, not the

agreement, [*15] but it is still based on American

Star’s underlying contract claim, consistent with

the statute.

Federal courts applying the TRPA have reached

the same conclusion we reach today. See Evanston

Ins. Co. v. Dillard Dep’t Stores, Inc., 602 F.3d

610, 617 (5th Cir. 2010) (holding a cause of action

to recover against partners of law firm successfully

sued for trademark infringement accrued on entry

of judgment against the firm, at the earliest); In re

Jones, 161 B.R. 180, 183 (Bankr. N.D. Tex. 1993)

(′′Under the entity theory of partnerships, it is

logical that a partner has no liability until the

partnership liability is established.′′). The Partners

cite lower-court precedent to argue that the

federal-court decisions are contrary to Texas law,

which they insist has always required partners to

be individually named and served within the

limitations period running from the underlying

claim.4 Those cases, however, were decided under

the Texas Uniform Partnership Act (TUPA), the

TRPA’s predecessor, and contain no meaningful

discussion of relevant statutory partnership law.

The TUPA did not expressly follow the entity

theory and did not impose the prerequisites to

proceeding against a partner. See Allcat, 356

S.W.3d at 463-64 (stating that though the TUPA

′′’lean[ed] heavily toward the entity idea,’′′ the

TRPA was passed ′′’to allay previous concerns

that stemmed from [*16] confusion as to whether

a partnership was an entity or an aggregate of its

members’′′ (citations omitted) (alteration in

original)); Kao Holdings, L.P. v. Young, 261

S.W.3d 60, 63 (Tex. 2008) (stating the TUPA

contained no provision similar to the TRPA’s

liability-enforcement provision). The Partners

unconvincingly argue the Legislature confirmed

the rule applied in these cases when it codified the

TRPA into the Business Organizations Code

without overruling those decisions. On the

contrary, the TRPA’s passage eliminates any

instructive or persuasive value those decisions

may have once had. We therefore decline to rely

on them.

B

Our holding does not disturb the policy purposes

behind limitations. HN10 They exist ′′to compel

the exercise of a right of action within a reasonable

time so that the opposing party has a fair

opportunity [*17] to defend while witnesses are

available.′′ Moreno, 787 S.W.2d at 351 (citation

omitted). In the partnership context, these concerns

are addressed by the limitations period applying

to the underlying cause of action against a

partnership. Here, by suing S & J within the

statute of limitations on the claim, American Star

did exercise its contract right of action within a

reasonable time. This action to collect the

judgment debt from the Partners does not require

relitigation of that claim. At issue is only whether

the judgment exists and whether the Partners were

in fact partners at the time of injury alleged.

Applied here, the limitations period running from

the underlying claim ′′would fail to serve the

underlying purpose of limitations and instead

would be a purely formal exercise.′′ See Matthews

Constr. Co. v. Rosen, 796 S.W.2d 692, 694 (Tex.

1990) (citation omitted).

The Partners argue that this suit imposes

′′automatic′′ liability and undermines their

dueprocess rights. They point to Kao Holdings, in

4

See Mathew v. McCoy, 847 S.W.2d 397, 400 (Tex. App.—Houston [14th Dist.] 1993, no writ) (holding no judgment could be taken

against partners who were not added and served within the limitations period running from the underlying claim); Partee v. Phelps, 840

S.W.2d 512, 514-15 (Tex. App.—Dallas 1992, no writ) (holding res judicata barred suit against partners); Cothrum Drilling Co. v. Partee,

790 S.W.2d 796, 800 (Tex. App.—Eastland 1990, writ denied) (holding statute governing service on partnership ′′does not authorize a

judgment against the partners who were not served before the claims against them were barred by the statute of limitations′′ (citations

omitted)).

Page 9 of 11

2015 Tex. LEXIS 161, *14

Brett Miller
which we said partners ′′should be both named

and served so that they are on notice of their

potential liability and will have an opportunity to

contest′′ that liability. 261 S.W.3d at 64. There, we

overturned a judgment against a partner who had

not been named or served at all, either in the [*18]

original suit against the partnership or in a separate

suit. Id. at 65. In doing so, we simply applied the

TRPA’s rule thatHN11 a judgment against a

partnership is not by itself a judgment against a

partner. Id. at 63-64. The Partners’ liability is not

automatic—this action naming them personally is

required to establish it. They have the same

opportunity to contest their liability as they would

have had were they sued within the underlying

limitations period.

More generally, the Partners were on notice of

their potential liability when they agreed to form

and do business as a partnership. HN12 The

partnership form has built-in mechanisms to

provide further notice of any impending liability.

First, each partner has a right to manage and

conduct partnership business. TEX. BUS. ORGS.

CODE § 152.203(a). When a partnership is sued,

the litigation presumably becomes part of that

business. Second, each partner owes to the others

a duty of care. Id. § 152.204(a)(2). When a

partnership is served with a lawsuit, that duty may

require the partner served to apprise the other

partners. See Zinda v. McCann St., Ltd., 178

S.W.3d 883, 890 (Tex. App.—Texarkana 2005, pet.

denied) (′′Partners have a duty to one another to

make full disclosure of all matters affecting the

partnership . . . .′′ (citations omitted)). Third,

partners can agree [*19] to provide notice of

pending litigation to one another in their

partnership agreement. See TEX. BUS. ORGS. CODE §

152.002 (′′[A] partnership agreement governs the

relations of the partners and between the partners

and the partnership.′′). Though the Partners would

have us presume our holding causes them harm,

we are not persuaded. We have declined in some

instances to recognize a special accrual date

where the policies underlying limitations outweigh

any justification for doing so. See, e.g., Robinson

v. Weaver, 550 S.W.2d 18, 22 (Tex. 1977) (declining

to apply the discovery rule to cases involving

medical misdiagnosis). This is not such an

instance.

Similarly, our holding avoids the injustice of a

partner shielding himself from liability through

limitations where their policy purposes are not

served. See Matthews Constr., 796 S.W.2d at 694

(refusing to apply limitations where doing so

′′would effectively permit the corporate form to be

used as a ’cloak for fraud’′′ (citation omitted));

Moreno, 787 S.W.2d at 351 (′′[Courts] have

consciously sought to apply [limitations] with due

regard to the underlying statutory policy of repose,

without, however, permitting unnecessary

individual injustices.′′ (quoting Fernandi, 173

A.2d at 285) (other citations omitted)). HN13 A

party doing business with a partnership does so

knowing that if the partnership [*20] fails on its

obligations, relief is not wholly subject to the

adequacy of the partnership assets. Conversely,

individuals who choose the partnership form as

the vehicle for their enterprise do so knowing that

their personal assets are on the line. Equity

demands we leave these expectations undisturbed

where a plaintiff proceeds as the law allows.

* * *

The Legislature has gone to great lengths to

address enforcement of a partnership debt against

a partner. The court of appeals did not see in the

TRPA’s scheme legislative intent to supersede our

more general limitations jurisprudence. We do,

and that intent spurs our determination today.

Accordingly, we hold that limitations does not bar

American Star’s suit against the Partners.5 We

reverse the court of appeals’ judgment and remand

the case to the trial court for further proceedings

consistent with this opinion.

5

The Partners argue that ′′[t]olling or any other basis to suspend the running of limitations′′ was not presented to the trial court and

cannot serve as grounds for reversal. American Star’s argument at all stages concerns when limitations began, however, not that they

Page 10 of 11

2015 Tex. LEXIS 161, *17

Brett Miller
Jeffrey V. Brown

Justice

OPINION DELIVERED: February 27, 2015

were tolled or suspended. ′′Deferring accrual and thus delaying the commencement [*21] of the limitations period is distinct from

suspending or tolling the running of limitations once the period has begun.′′ S.V., 933 S.W.2d at 4. Our holding today does the former.

Page 11 of 11

2015 Tex. LEXIS 161, *20

Brett Miller