COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 02-10-00271-CV

COMPTROLLER, STATE OF 

TEXAS

APPELLANT

V.

WESLEY LANDSFELD APPELLEE

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FROM THE 96TH DISTRICT COURT OF TARRANT COUNTY

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OPINION

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I. Introduction

In three issues, Appellant Comptroller, State of Texas (TCPA) appeals a 

judgment in favor of Appellee Wesley Landsfeld. We vacate the trial court’s 

judgment and dismiss the case.
2

II. Procedural and Factual Background

Because we resolve the parties’ dispute over Landsfeld’s employmentdiscrimination claim on the TCPA’s procedural challenge, a detailed factual 

recitation is unnecessary. Suffice it to say that on February 16, 2005, Landsfeld, 

who had already worked ten hours without lunch or a break, refused his 

supervisor Maria Lowrance’s request to stay beyond 5:00 p.m., and that on 

March 1, 2005, during a meeting, TCPA Office Manager Jarrell Barnes, told 

Landsfeld that he could retire or be fired the following day for insubordination. 

That same day, Landsfeld tendered a letter to TCPA stating that he would retire 

on March 31, 2005.

On September 27, 2005, Landsfeld filed a complaint with the Equal 

Employment Opportunity Commission and the Texas Workforce Commission 

(TWC) claiming that TCPA discriminated against him because of his age and that 

he was involuntarily retired. On June 8, 2006, Landsfeld received a right-to-sue 

notice from TWC allowing him to bring suit within sixty days of that notice. See

Tex. Lab. Code Ann. § 21.254 (West 2006). On July 25, 2006, Landsfeld sued 

TCPA for age discrimination. TCPA filed a plea to the jurisdiction based on 

Landsfeld’s alleged failure to serve it within sixty days following receipt of the 

right-to-sue notice or to use due diligence in attempting service. See Tex. 

Comptroller of Pub. Accounts v. Landsfeld, No. 02-07-00266-CV, 2008 WL 

623832, at *2 (Tex. App.—Fort Worth Mar. 6, 2008, no pet.) (mem. op.). The trial 

court denied the plea, and after TCPA’s interlocutory appeal, this court affirmed 
3

that ruling. Id. A jury trial ensued. After both sides rested, TCPA, for the first 

time, asserted that because Landsfeld filed his TWC claim beyond the prescribed

180-day deadline, the trial court lacked jurisdiction. See Tex. Lab. Code Ann. 

§ 21.202 (West 2006) (stating that a complaint must be filed within 180 days of 

the occurrence of the allegedly discriminatory action). The trial court concluded 

that Landsfeld ―[had] file[d] within the statutory period of time‖ and that even if he 

had not, ―the State ha[d] waived its complaint,‖ and it denied TCPA’s motion.

1

 

Pursuant to the jury’s findings, the trial court entered a judgment against TCPA, 

from which TCPA now appeals.

III. Labor Code Section 21.202’s 180-Day Charge Filing Deadline

In its first two issues, TCPA argues that because Landsfeld filed his 

complaint beyond labor code section 21.202’s mandatory and jurisdictional 180-

day charge filing deadline and because jurisdiction cannot be waived, the trial 

court erred by not dismissing the case. We agree.

A. Standard of Review and Applicable Law

Whether a court has subject matter jurisdiction is a question of law 

reviewed de novo. Tex. Dep’t. of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 

 

1

The trial court also noted that it was concerned that ―other than argument, 

there’s been absolutely no evidence presented on any of [the jurisdictional] 

issues, including beginning date, the date of termination, when [Landsfeld] knew 

from the standpoint of a claim dealing with jurisdiction.‖ However, the record 

reflects that Landsfeld testified that Barnes presented him with the option of 

resignation or termination on March 1, 2005, and that in an email, Landsfeld 

resigned effective March 31, 2005. 
4

226 (Tex. 2004). Subject matter jurisdiction is an issue that may be raised for the 

first time on appeal. Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 

445 (Tex. 1993). It also may not be conferred by waiver or estoppel. Van ISD v. 

McCarty, 165 S.W.3d 351, 354 (Tex. 2005). Sovereign immunity deprives a trial 

court of subject matter jurisdiction for lawsuits in which the state or certain 

governmental units have been sued unless the state consents to suit. Miranda, 

133 S.W.3d at 224. 

Chapter 21 of the labor code provides a limited waiver of sovereign 

immunity when a governmental unit has committed age-based employment 

discrimination. See Tex. Lab. Code Ann. § 21.002(8)(D) (West Supp. 2010)

(defining ―employer‖ to include state agency), § 21.051 (West 2006) (prohibiting 

age discrimination by employer); Mission Consol. ISD v. Garcia, 253 S.W.3d 653, 

660 (Tex. 2008) (labor code clearly and unambiguously waives immunity). The 

waiver applies, however, only if the claimant satisfies the procedural 

requirements outlined in chapter 21. Garcia, 253 S.W.3d at 660. 

Procedural requirements such as limitations, even if mandatory, may be 

waived unless they are jurisdictional. In re United Servs. Auto. Ass’n (USAA), 

307 S.W.3d 299, 307 (Tex. 2010) (orig. proceeding). To determine whether a 

statutory requirement is jurisdictional, we apply statutory interpretation principles. 

City of DeSoto v. White, 288 S.W.3d 389, 394 (Tex. 2009). Our goal is to 

ascertain legislative intent by examining the statute’s plain language. Id.
5

1. Legislative Intent

We review this statutory-interpretation question de novo, and in construing 

statutes, we ascertain and give effect to the legislature’s intent as expressed by 

the statute’s language. City of Rockwall v. Hughes, 246 S.W.3d 621, 625 (Tex. 

2008). We use definitions prescribed by the legislature and any technical or 

particular meaning the words have acquired. Id. (citing Tex. Gov’t Code Ann. 

§ 311.011(b) (West 2005)); see also Entergy Gulf States, Inc. v. Summers, 282 

S.W.3d 433, 437 (Tex. 2009) (op. on reh’g) (―Where text is clear, text is 

determinative of [the legislature’s] intent.‖). Furthermore, we consider the object 

sought to be attained, the circumstances under which the statute was enacted, 

its legislative history, and common law or former statutory provisions, including 

laws on the same or similar subjects, among other factors. See Tex. Gov’t Code 

Ann. § 311.023 (West 2005). In interpreting a statute, a court ―shall diligently 

attempt to ascertain legislative intent and shall consider at all times the old law, 

the evil, and the remedy.‖ Id. § 312.005 (West 2005). And ―[u]nless expressly 

provided otherwise, a reference to any portion of a statute, rule, or regulation 

applies to all reenactments, revisions, or amendments of the statute, rule, or 

regulation.‖ Id. § 312.008 (West 2005). Finally, we must read the statute as a 

whole and not just isolated portions. Tex. Dep’t of Transp. v. City of Sunset 

Valley, 146 S.W.3d 637, 642 (Tex. 2004); Boenig v. StarnAir, Inc., 283 S.W.3d 

444, 447 (Tex. App.—Fort Worth 2009, no pet.); see also Nauslar v. Coors 
6

Brewing Co., 170 S.W.3d 242, 253 (Tex. App.—Dallas 2005, no pet.) (―We 

determine legislative intent from the entire act and not just its isolated portions.‖)

2. Labor Code Section 21.202 

Section 21.202 of the labor code reads ―STATUTE OF LIMITATIONS. 

(a) A complaint under this subchapter must be filed not later than the 180th day 

after the date the alleged unlawful employment practice occurred. (b) The 

commission shall dismiss an untimely complaint.‖ Tex. Lab. Code Ann. § 21.202. 

The 180-day limitations period begins to run when the employee is informed of 

the alleged discriminatory employment decision. Tex. Dep’t of Pub. Safety v. 

Alexander, 300 S.W.3d 62, 70 (Tex. App.—Austin 2009, pet. denied). And 

although it does indicate the legislature’s intent, the ―Statute of Limitations‖ title is 

not controlling. USAA, 307 S.W.3d at 307. A discrimination claim is governed by 

the law in effect on the date the complaint was filed. See Cent. Power & Light v. 

Caballero, 872 S.W.2d 6, 7 n.2 (Tex. App.—San Antonio 1994, writ denied).

3. Government Code Section 311.034

Section 311.034 of the government code states that 

[i]n order to preserve the legislature’s interest in managing state 

fiscal matters through the appropriations process, a statute shall not 

be construed as a waiver of sovereign immunity unless the waiver is 

effected by clear and unambiguous language. In a statute, the use 

of ―person,‖ as defined by Section 311.005 to include governmental 

entities, does not indicate legislative intent to waive sovereign 

immunity unless the context of the statute indicates no other 

reasonable construction. Statutory prerequisites to a suit, including 

the provision of notice, are jurisdictional requirements in all suits 

against a governmental entity.
7

Tex. Gov’t Code Ann. § 311.034 (West Supp. 2010) (emphasis added). The final 

sentence of section 311.034, added in 2005, became effective on September 1, 

2005. See Act of May 12, 2005, 79th Leg., R.S., ch. 1150, § 1, 2005 Tex. Gen. 

Laws 3783, 3783 (amending section 311.034) (current version at Tex. Gov’t 

Code Ann. § 311.034). Landsfeld filed his complaint twenty-six days after 

section 311.034’s amendment’s effective date, thus section 311.034 as amended 

applies to Landsfeld’s claim. See Caballero, 872 S.W.2d at 7 n.2.

B. Analysis

In its first issue, TCPA argues that the trial court erred because section 

21.202 is both mandatory and jurisdictional. TCPA specifically asserts that 

although the supreme court’s holding in USAA overruled precedent as to section 

21.256, it did not, as Landsfeld asserts,2―call into question the jurisdictional 

nature of [section 21.202’s] 180-day charge filing deadline.‖

In USAA, the supreme court held that section 21.256, which is entitled 

―Statute of Limitations‖ and which sets a two-year limitation from the time of filing 

an administrative complaint to file a lawsuit, was not jurisdictional. 307 S.W.3d at 

 

2

In his response, along with arguing that USAA supports our conclusion 

that section 21.202 is nonjurisdictional, Landsfeld argues that Waffle House, Inc. 

v. Williams’s references to section 21.202 as ―a statute of limitations‖ 

demonstrates that the supreme court does not consider section 21.202 

jurisdictional. See 313 S.W.3d 796, 805 (Tex. 2010). Williams, however, 

involved a private entity and mentioned section 21.202 only briefly when 

comparing administrative and common law filing requirements. Id. Williams did 

not address section 311.034’s declaration that statutory prerequisites are 

jurisdictional in suits against governmental entities. See Tex. Gov’t Code Ann. 

§ 311.034.
8

310; see Tex. Lab. Code Ann. § 21.256 (West 2006); Tarrant Reg’l Water Dist. v. 

Villanueva, 331 S.W.3d 125, 129 n.3 (Tex. App.—Fort Worth 2010, pet. filed). 

Although we did not directly address section 21.202 in Villanueva, we noted that 

in USAA, the supreme court reversed its earlier decision relative to labor code 

section 21.256 but that it did not disturb its prior holding ―that failure to file a 

complaint and to pursue administrative remedies within [section 21.202’s] 180-

day time frame creates a jurisdictional bar.‖ See Villanueva, 331 S.W.3d at 129 

n.3. 

In USAA, the supreme court’s analysis began with the presumption that 

the provision was nonjurisdictional, ―a presumption overcome only by clear 

legislative intent to the contrary.‖ 307 S.W.3d at 307 (emphasis added). The 

supreme court noted that section 21.256 did not contain any language explicitly 

indicating that it was jurisdictional and considered that if the section’s filing 

deadline were jurisdictional, many apparently final judgments would be open to 

attack. Id. at 308, 310. The supreme court preferred to avoid this result ―unless 

that was the Legislature’s clear intent.‖ Id. (emphasis added). Unlike section 

21.256, section 21.202(b)’s mandate that ―[t]he commission shall dismiss an 

untimely complaint‖ shows the legislature’s intent to make the 180-day filing 

deadline jurisdictional. Tex. Lab. Code Ann. § 21.202; Lueck v. State, 325 

S.W.3d 752, 763–66 (Tex. App.—Austin 2010, pet. filed) (analyzing subsection

(b)’s role in determining legislative intent to make section 21.202 mandatory and 

jurisdictional); see also House Study Group, Bill Analysis, Tex. H.B. 14, 68th Leg. 
9

C.S.1 (1983) (―Aggrieved persons would have to file a complaint with the 

commission within 180 days of the alleged unlawful practice.‖).

Furthermore, in USAA, the supreme court concluded that

[w]hile the Legislature could make the Labor Code filing deadlines 

jurisdictional, as it has in cases involving statutory requirements 

relating to governmental entities, see Tex. Gov’t Code Ann. 

§ 311.034 (providing that ―statutory prerequisites to a suit, including 

the provision of notice, are jurisdictional requirements in all suits 

against a governmental entity‖), it has not done so here.

307 S.W. 3d at 308 (emphasis added). Thus, stated another way, the legislature 

has expressly declared that statutory prerequisites to filing suit are jurisdictional 

in cases relating to governmental entities.3 See also Little v. Tex. Bd. of Law 

Exam’rs, 334 S.W.3d 860, 864 (Tex. App.—Austin 2011, no pet.) (―statutory 

prerequisites to suits against governmental entities are jurisdictional‖). 

Moreover, in Roccaforte v. Jefferson County, a post-USAA decision in 

which the supreme court considered whether a post-suit notice requirement was 

 

3After USAA, the Corpus Christi Court of Appeals found that labor code 

section 21.254’s sixty-day deadline to file suit after receipt of notice of the right to 

file a civil action was not jurisdictional even as to a government entity. See 

Mission Consol. ISD v. Garcia, 314 S.W.3d 548, 559 (Tex. App.—Corpus Christi 

2010, pet. filed) (op. on reh’g). However, section 21.254 does not contain the 

mandatory dismissal language found in section 21.202 and, instead, states that a 

party ―may‖ file a civil action within sixty days of receiving a right-to-sue notice 

from the TWC. See Tex. Lab. Code. Ann. § 21.254; see also McCollum v. Tex. 

Dep’t of Licensing & Regulation, 321 S.W.3d 58, 64 (Tex. App.—Houston [1st 

Dist.] 2010, pet. filed) (―Unlike section 21.202, section 21.254 does not mandate 

that a suit that is filed and served beyond the 60-day window must be 

dismissed.‖). Moreover, when Garcia was filed, the final sentence of section 

311.034 was not yet in effect. See Garcia, 314 S.W.3d at 559; Act of June 15, 

2001, 77th Leg., R.S., ch. 1158, § 8, 2001 Tex. Gen. Laws 2374, 2433 (amended 

2005) (current version at Tex. Gov’t Code Ann. § 311.034). 
10

jurisdictional, the court held that section 311.034 did not apply because a postsuit requirement is not a ―prerequisite to a suit.‖ 341 S.W.3d 919, 924 (Tex. 

2011); see Tex. Loc. Gov’t Code Ann. § 89.0041 (West 2008). And, although the 

supreme court concluded that local government code section 89.0041 was 

nonjurisdictional, even against a government entity, the court reemphasized that

jurisdictional analysis focused on legislative intent and noted that 

local government code section 89.0041 [does not] show such intent: 

that section states that a trial court may dismiss a case for 

noncompliance only after the governmental entity has moved for 

dismissal. Tex. Loc. Gov’t Code § 89.0041(c) (―If a person does not 

give notice as required by this section, the court in which the suit is 

pending shall dismiss the suit on a motion for dismissal made by the 

county or the county official.‖). The motion requirement means that 

a case may proceed against those governmental entities that do not 

seek dismissal—in other words, that a county can waive a party’s 

noncompliance. This confirms that compliance with the notice 

requirements is not jurisdictional. See Loutzenhiser, 140 S.W.3d at 

359 (―The failure of a non-jurisdictional requirement mandated by 

statute may result in the loss of a claim, but that failure must be 

timely asserted and compliance can be waived.‖).

Roccaforte, 341 S.W.3d at 925–26 (emphasis added). In contrast, section 

21.202(b) expressly dictates that if a filing is not timely, the commission ―shall 

dismiss‖ the claim. Tex. Lab. Code Ann. § 21.202(b). This provision removes 

any discretion on the part of the commission and mandates automatic dismissal 

without any action on the part of the employer. Id.; cf. Lueck, 325 S.W.3d at 

764–766 (recognizing the critical role section 21.202 plays in preventing 

circumvention of the administrative review process).
11

Therefore, we are constrained to conclude that when the employer is a 

governmental entity, section 21.202’s 180-day filing requirement is a mandatory 

and jurisdictional prerequisite to filing a lawsuit. See Schroeder v. Tex. Iron 

Works, Inc., 813 S.W.2d 483, 485, 486 (Tex. 1991), overruled on other grounds 

by USAA, 307 S.W.3d at 310; Villanueva, 331 S.W.3d at 129 n.3; see also

Collins-Pearcy v. Mediterranean Shipping Co. (USA) Inc., 698 F. Supp. 2d 730, 

742 (S.D. Tex. 2010) (same); Tex. S. Univ. v. Rodriguez, No. 14-10-01079-CV, 

2011 WL 2150238, at *2 (Tex. App.—Houston [14th Dist.] Jun. 2, 2011, no pet. 

h.) (mem. op.) (stating that section 21.202 is mandatory and jurisdictional); 

Lamar Univ. v. Jordan, No. 09-10-00292-CV, 2011 WL 550089, at *2 (Tex. 

App.—Beaumont Feb. 17, 2011, no pet.) (mem. op.) (same); In re Arcelormittal

Vinton, Inc., 334 S.W.3d 347, 350 (Tex. App.—El Paso 2011, orig. proceeding) 

(same); Lueck, 325 S.W.3d at 762 (same). And because TCPA could neither 

waive nor be estopped from asserting its jurisdictional challenge, we sustain 

TCPA’s first issue. See McCarty, 165 S.W.3d at 354.

C. Application to Jurisdictional Facts

In its second issue, TCPA contends that Landsfeld filed his administrative 

complaint too late, depriving the trial court of jurisdiction. The parties do not 

dispute the jurisdictional facts, only their legal effect. Whether undisputed 

evidence of jurisdictional facts establishes a trial court’s jurisdiction is a question 

of law reviewed de novo. Miranda, 133 S.W.3d at 226. 
12

As noted above, section 21.202 requires a complaint to be filed ―not later 

than the 180th day after the date the alleged unlawful employment practice 

occurred.‖ Tex. Lab. Code Ann. § 21.202. Exhaustion of administrative 

remedies is a prerequisite to a suit, and exhaustion is impossible if the complaint 

is untimely. Williams, 313 S.W.3d at 804; Lueck, 325 S.W.3d at 762.

Landsfeld argues that the relevant date was March 31, 2005 (his last day 

of employment), 179 days before he filed his complaint. TCPA counters that the 

relevant date was March 1, 2005 (the date Landsfeld was told that if he did not 

immediately retire, he would be fired), 209 days before Landsfeld filed his 

complaint. 

―The limitations period begins when the employee is informed of the 

allegedly discriminatory employment decision, not when that decision comes to 

fruition.‖ Specialty Retailers, Inc. v. DeMoranville, 933 S.W.2d 490, 493 (Tex.

1996) (stating that the 180-day period began when employee was told she would 

be fired if medical leave lasted over one year, not when she was actually fired); 

see also Villanueva, 331 S.W.3d at 134 (holding that the 180-day period began 

when employee was denied pay raise, not at time of paycheck); Alexander, 300 

S.W.3d at 70 (concluding that the 180-day period began when employees 

learned that they would not be promoted, not when promotions took effect). 

Accordingly, we conclude that the 180-day limitations period began on March 1, 

2005, when Landsfeld was given the option to retire or be terminated. Because 

Landsfeld filed his complaint twenty-nine days beyond section 21.202’s 180-day 
13

filing deadline, and because section 21.202’s 180-day filing deadline is

mandatory and jurisdictional, the trial court had no jurisdiction to hear Landsfeld’s 

case. We sustain TCPA’s second issue.

IV. Conclusion

Having sustained TCPA’s dispositive issues,4 we vacate the trial court’s

judgment and dismiss the case.

BOB MCCOY

JUSTICE

PANEL: DAUPHINOT, GARDNER, and MCCOY, JJ. 

DAUPHINOT, J. filed a dissenting opinion.

DELIVERED: August 31, 2011

 

4Because we conclude that the trial court had no jurisdiction, we need not 

consider TCPA’s evidentiary sufficiency challenge. See Tex. R. App. P. 47.1.
COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 02-10-00271-CV

COMPTROLLER, STATE OF 

TEXAS

APPELLANT

V.

WESLEY LANDSFELD APPELLEE

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FROM THE 96TH DISTRICT COURT OF TARRANT COUNTY

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DISSENTING OPINION

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I must respectfully dissent from the majority opinion because I cannot

agree with the holding that Landsfeld’s claim is barred by the statute of 

limitations. The majority states that the 180-day statute of limitations began to 

run on March 1, 2005, the day TCPA Office Manager Jarrell Barnes told 

Landsfeld that he could retire or be fired on the following day for insubordination 

and the day that Landsfeld tendered a letter to TCPA stating that he would retire 
2

on March 31, 2005.1 If the limitations period did, indeed, begin to run on March 

1, then the 180 days for filing notice with the EEOC expired before September 1, 

2005, the effective date of the change in law that amended Section 311.034 of 

the government code to add the sentence, ―Statutory prerequisites to a suit, 

including the provision of notice, are jurisdictional requirements in all suits 

against a governmental entity.‖2 That is, the limitations period expired before

September 1, 2005, the effective date of the amendment making statutory 

prerequisites, like the 180-day notice period, jurisdictional. Accordingly, under 

this scenario, the trial court correctly held that TCPA waived the limitations 

argument.

If, however, as I believe, the Texas Labor Code’s 180-day statute of 

limitations begins to run, at the latest, on the day the last adverse action was 

taken by the employer, then under the facts of this case, it began to run on the 

date that Landsfeld actually resigned, March 31, 2005, not March 1, the date on 

which the employer threatened to fire him and on which he gave notice of his 

future departure. On any date between March 1 and March 31, the parties could 

have resolved their disagreement without involving the courts, a measure that 

good policy should encourage. The latest adverse act taken by the employer 

 

1Majority op. at 2, 12–13.

2See id. at 6–7; Tex. Lab. Code Ann. § 21.202 (West 2006) Tex. Gov’t 

Code Ann. § 311.034 (West Supp. 2010); Act of May 12, 2005, 79th Leg., R.S., 

ch. 1150, § 1, 2005 Tex. Gen. Laws 3783, 3783 (amending section 311.034) 

(current version at Tex. Gov’t Code Ann. § 311.034).
3

was carrying through with the threat to accept Landsfeld’s resignation as an 

alternative to firing him. Had Landsfeld withdrawn his resignation before actually 

walking away from his employment, and had the employer carried through on its 

threat to fire him at that point, it would be nonsensical to hold that the limitations 

period for giving notice began to run on the day that Landsfeld gave notice of his 

intent to resign. For these reasons, I would hold that Landsfeld timely filed his 

notice within 180 days of the last adverse action, which was his constructive 

discharge on March 31, the date the employer carried through on its threat to fire 

or to allow Landsfeld’s resignation.

Because I would uphold the trial court’s judgment under either scenario, I 

respectfully dissent.

LEE ANN DAUPHINOT

JUSTICE

DELIVERED: August 31, 2011