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IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS

SAN ANTONIO DIVISION

BLUE RIBBON STAFFING LLC,

 Plaintiff,

vs.

FLATIRON CONSTRUCTORS, INC. ET 

AL. 

 Defendants.

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5-20-CV-00686-RBF

ORDER

Before the Court is Defendants’ Motion to Dismiss. See Dkt. No. 19. The Court has 

diversity jurisdiction over this action to recover on a public-works bond under Texas’s McGregor 

Act. See 28 U.S.C. § 1332. Authority to enter this Order stems from 28 U.S.C. § 636(c), as all 

parties have consented to U.S. Magistrate Judge jurisdiction. See Dkt. Nos. 8-9, 12.

As discussed further below, Defendants’ Motion, Dkt. No. 19, is GRANTED. McGregor 

Act claims such as those lodged here must be properly perfected as a condition precedent to any 

recovery. Because Plaintiff Blue Ribbon Staffing LLC failed to properly perfect its claims as a 

matter of law, the claims to recover on the payment bond for work performed in July through 

October of 2019 are DISMISSED.

Factual and Procedural Background

Defendant Flatiron Constructors, Inc. served as a general or prime contractor (also called 

the primary contractor) on a public-works construction project to improve Loop 1604 in Bexar 

County, Texas. See Amend. Compl. (Dkt. No. 18) at 2. In accordance with Texas’s McGregor Act, 

Tex. Gov’t Code § 2253, Flatiron posted a payment bond for the project, listing the additional 

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Defendants as bond sureties. See id. at 3. Flatiron is therefore the bond principal as well as the 

prime contractor. Flatiron subcontracted a portion of the project’s concrete work to non-party 2J 

Resources LLC. See id. 2J Resources, in turn, contracted with Plaintiff Blue Ribbon to provide 

labor from July through October 2019. See id.; Ex. 2. 2J Resources, however, allegedly never paid 

Blue Ribbon for the labor Blue Ribbon provided. See id. at 3. This case involves Blue Ribbon’s 

efforts to recover on the payment bond from the bond sureties and principal.

On April 23, 2020, Blue Ribbon sued Defendants in Bexar County state court. See Dkt. 

No. 1-1 at 3-7. Blue Ribbon seeks $123,704.90, plus interest, and attorneys’ fees pursuant to 

Chapter 38 of the Texas Civil Practice & Remedies Code. See Amend. Compl. (Dkt. No. 18). Blue 

Ribbon claims in its live complaint that it provided certain statutorily required “notices to Flatiron 

Constructors, Inc. and to the lead surety as contained in the attached Exhibit 2, which contains all 

of the unpaid invoices, and has complied with the statute for notice to the general or prime 

contractor and its sureties.” Id. at 3.

Defendants timely removed the case based on diversity jurisdiction. See Dkt. No. 1.

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Defendants now move to dismiss Blue Ribbon’s claims for failure to satisfy the McGregor Act’s 

notice requirements. See Dkt. No. 19. Additionally, Defendants argue Blue Ribbon isn’t entitled 

to attorney fees under Chapter 38 of the Texas Civil Practice & Remedies Code. See id. Before 

taking up Defendants’ Motion to Dismiss, the Court provided Blue Ribbon an opportunity to 

amend its live pleadings to conform to federal pleading standards and respond to Defendants’ 

arguments for dismissal based on the asserted inadequacy of notice provided by Blue Ribbon in 

connection with its claims. See Dkt. Nos. 17 & 18.

1 Defendants subsequently amended their notice of removal to adequately allege the parties’ 

citizenship. See Dkt. No. 5. 

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Analysis

As evident on the face of Blue Ribbon’s live pleadings and the uncontested matters 

submitted by Blue Ribbon attached to its Amended Complaint, Blue Ribbon failed as a matter of 

law to timely provide the statutorily required notice of its claims for work performed in July, 

August, and September 2019. That notice is a condition precedent to the perfection of a cause of 

action under the McGregor Act. Accordingly, those unperfected claims must be dismissed.

The claim involving October 2019 work raises the novel issue of whether email notice 

under the McGregor Act could satisfy the Act’s notice requirements. After a careful review of the 

McGregor Act’s text, Fifth Circuit precedent, and relevant Texas Supreme Court decisions, the 

Court’s Erie guess is that the Texas Supreme Court would conclude that the email notice provided 

by Blue Ribbon doesn’t comply with the McGregor Act under a plain-text reading of its provisions.

Blue Ribbon’s claims for October 2019 work must therefore also be dismissed. 

The attorney’s fees issue need not be addressed, as the McGregor Act provided the only 

basis for relief asserted by Blue Ribbon. 

A. The McGregor Act and Its Notice Requirements.

The parties agree that Texas’s McGregor Act governs this action and provides the sole 

cause of action through which Blue Ribbon seeks relief. Under the Act, as it pertains to this case,

“[a] governmental entity that enters into a public works contract with a general contractor 

must . . . require the [prime] contractor to execute performance and payment bonds before work 

begins.” Capitol Indem. Corp. v. Kirby Rest. Equip. & Chem. Supply Co., 170 S.W.3d 144, 147 

(Tex. App.—San Antonio 2005, pet. denied) (citing Tex. Gov’t Code § 2253.021). The parties 

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further agree that Flatiron executed a payment bond and that the other Defendants are sureties on 

the bond. 

The McGregor Act, in addition to requiring a bond in circumstances such as these, also

provides a cause of action for a “payment bond beneficiary who has provided public work . . . 

under a public work contract” to “sue the principal or surety, jointly or severally, on the payment 

bond if the claim is not paid before the 61st day after the date the notice for the claim is mailed.” 

Tex. Gov’t Code § 2253.073. But under the Act, as Blue Ribbon concedes, “[a] payment bond 

claimant’s claim can fail if the claimant fails to provide timely or adequate notice” of the claim 

and, as a result, does not properly perfect the claim. Resp. at ¶ 9; see Capitol Indem.,170 S.W.3d 

at 147 (citing Tex. Gov’t Code § 2253.073 and noting, “[i]n order to bring suit against the surety 

on a payment bond, [however,] the beneficiary must first properly perfect the claim”). Indeed, 

providing the required notice is a condition precedent to perfecting a claim under the Act. See In 

re Contractor Tech., Ltd., 529 F.3d 313, 318-20 (5th Cir. 2008). In this regard, “[t]he statute is 

intended to provide a simple and direct method of giving notice and perfecting such claims.” 

Capitol Indem., 170 S.W.3d at 147. The details of the timing and substance of the required notice 

vary depending on the relationship between the bond beneficiary and the prime contractor.

1. Notice from a beneficiary in direct privity with the prime contractor.

For a payment-bond beneficiary who directly contracted with the prime contractor, the 

beneficiary “must mail to the prime contractor and surety written notice of the claim” within a 

three-month deadline, as provided below: 

NOTICE REQUIRED FOR CLAIM FOR PAYMENT FOR LABOR OR 

MATERIAL.

(a) To recover in a suit under Section 2253.073 on a payment bond for a claim for

payment for public work labor performed or public work material delivered, a 

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payment bond beneficiary must mail to the prime contractor and the surety written 

notice of the claim.

(b) The notice must be mailed on or before the 15th day of the third month after 

each month in which any of the claimed labor was performed or any of the claimed 

material was delivered.

(c) The notice must be accompanied by a sworn statement of account that states in 

substance:

(1) the amount claimed is just and correct; and

(2) all just and lawful offsets, payments, and credits known to the affiant 

have been allowed.

. . . .

Tex. Gov’t Code § 2253.041(a)-(c) (emphasis added). As the statute makes clear, the notice must 

be mailed on or before the 15th day of the third month after each month in which any of the claimed 

labor was performed, and it must be accompanied by a “sworn statement of account.” Tex. Gov’t 

Code § 2253.041(c); Capitol Indem., 170 S.W.3d at 147. Notably, the required sworn statement of 

account need only provide certain details “in substance.” Tex. Gov’t Code § 2253.041(c).

2. Notice from a beneficiary not in direct privity with the prime contractor.

But for a subcontractor like Blue Ribbon lacking a direct contractual relationship with the 

prime contractor, the requirements are more exacting in terms of timing and more relaxed in other 

ways. In such circumstances and as pertinent to this case, the Act provides as follows: 

ADDITIONAL NOTICE REQUIRED FOR PAYMENT BOND BENEFICIARY 

WITHOUT DIRECT CONTRACTUAL RELATIONSHIP WITH PRIME 

CONTRACTOR. 

(a) To recover in a suit under Section 2253.073 on a payment bond, a payment 

bond beneficiary who does not have a direct contractual relationship with the prime 

contractor for public work labor or material must mail notice as required by this 

section.

. . . .

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(c) The payment bond beneficiary must mail to the prime contractor written notice 

of a claim for any unpaid public work labor performed or public work material 

delivered. The notice must be mailed on or before the 15th day of the second month 

after each month in which the labor was performed or the material was delivered. 

A copy of the statement sent to a subcontractor is sufficient as notice under this 

subsection.

Tex. Gov’t Code § 2253.047(a), (c) (emphasis added). Thus, the bond beneficiary without a direct 

relationship to the prime contractor “must mail” notice to the prime contractor “before the 15th 

day of the second month after each month in which the labor was performed.” Tex. Gov’t 

Code § 2253.047(c) (emphasis added). Offsetting somewhat the shorter timeline for providing 

notice, § 2253.047(c) provides that “[a] copy of the statement sent to a subcontractor is sufficient 

as notice under this subsection.” No sworn statement of account, in other words, is required. See 

id. 

3. Requirements for mailing the required notice.

Finally, a separate section of the Act addresses the topic of “Mailing Notice,” and it 

provides—as follows—several mandatory features for mailing the required notice along with 

certain options as well:

MAILING NOTICE. 

(a) A notice required by this subchapter to be mailed must be sent by certified or 

registered mail.

(b) A notice required by this subchapter to be mailed to a prime contractor must be

addressed to the prime contractor at the contractor’s residence or last known 

business address.

(c) A person satisfies the requirements of this subchapter relating to providing 

notice to the surety if the person mails the notice by certified or registered mail to 

the surety:

(1) at the address stated on the bond or on an attachment to the bond;

(2) at the address on file with the Texas Department of Insurance; or

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(3) at any other address allowed by law.

Tex. Gov’t Code § 2253.048 (emphasis added).

B. Claims for July and August 2019 Work.

Blue Ribbon’s live pleading seeks recovery for $123,704.90 in unpaid sums for labor 

provided, based on attached invoices ranging from July 2019 through October 2019. See Dkt. No. 

18 at 4; Ex. 2 to Dkt. No. 18 (invoices). The invoices attached to the Amended Complaint are 

properly before the Court in this motion-to-dismiss posture. See Fed. R. Civ. P. 12(b)(6); Lone 

Star Fund V (U.S.), L.P. v. Barclays Bank PLC, 594 F.3d 383, 387 (5th Cir. 2010).

Blue Ribbon has abandoned any defense against dismissal of its claims for work performed 

in July and August of 2019. Defendant’s Motion to Dismiss argues, a lack of timely, adequate 

notice as a matter of law for all claims for work performed from July 2019 through October 2019. 

In its Response, Blue Ribbon argues only that it provided timely, adequate notice for claims

associated with work performed in September and October of 2019. See Resp. at 2 (Dkt. No. 20). 

Even after an opportunity to amend to address notice issues, the Complaint offers only a vague 

legal conclusion to the effect that Blue Ribbon “complied with the statute for notice.” Dkt. No. 18

at 3. That bare legal conclusion is insufficient under Rule 12(b)(6). See Ashcroft v. Iqbal, 556 U.S. 

662, 678 (2009). And given that the parties do not dispute the invoices, and further given there is 

no allegation or argument whatsoever that there is or could be any other notice provided by Blue 

Ribbon for these claims apart from that discussed in the Motion and Response, it is appropriate to 

dismiss the claims in this Rule 12(b)(6) posture. 

Moreover, by offering no argument in support of any adequate, timely notice that could 

possibly have been supplied in connection with claims for work performed in July and August of 

2019, Blue Ribbon has effectively abandoned those claims, as Defendants point out in their Reply: 

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Blue Ribbon now concedes that its notice was untimely as to all labor performed in 

July and August 2019, making no argument that it complied with the Act as to those 

months’ payments.

Repl. (Dkt. No. 21) at 3 (citing Local Rule CV-7(e)(2)). Finally, adequate notice of claims is a 

condition precedent to the accrual of a claim under the McGregor Act, and based on the live 

Complaint and uncontested matters properly before the Court there is no argument that the 

condition was or could have been satisfied. See In re Contractor Tech., 529 F.3d at 318-20. The

July and August 2019 claims must therefore be dismissed. 

C. Claim for September 2019 Work. 

Under the Act, Blue Ribbon—a payment-bond beneficiary without a direct contractual 

relationship with the prime contractor—was required to “mail” a copy of its September 2019 

invoices to the prime contractor Flatiron and the sureties by November 15, 2019. See Tex. Gov’t 

Code § 2253.047(a), (c). Only entities with a direct contractual relationship with the prime 

contractor, such as 2J Resources, are permitted an additional month in which to provide a more 

substantively robust notice of a claim. See id. § 2253.041(b). 

Blue Ribbon doesn’t meaningfully dispute that it failed to timely comply with the notice 

requirement (either formally or informally) for work performed in September 2019. Instead, Blue 

Ribbon claims it is entitled to rely on the December 12, 2019 notice provided by 2J Resources to 

Flatiron and one of the bond’s sureties, Defendant Liberty Mutual Insurance Company,2as a basis 

to perfect Blue Ribbon’s claim for work performed in September 2019. In support, Blue Ribbon 

urges that as a staffing company, it should be considered 2J Resources’ co-employer and therefore 

also subject to the Act’s three-month notice period. Alternatively, Blue Ribbon claims that because 

2

See Ex. 2 to Amend. Compl. at 51-52. 

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it paid for 2J Resource’s labor force, it is entitled to benefit from 2J Resource’s notice under 

principles of equitable subrogation.

Blue Ribbon’s argument is unsupported by the plain text of the statute or any case law cited 

in its briefing. If accepted, the argument could effectively render superfluous the McGregor Act’s

differing deadlines for subcontractors in direct privity with the prime from those not in direct 

privity. Nor is there any convincing support brought to the Court’s attention for an “equitablesubrogation” or staffing-company “co-employer” exception to the Act’s notice requirement.

In any event, 2J Resources’ letter to Flatiron and Defendant Liberty Mutual wouldn’t

satisfy § 2253.041, which has a longer timeline but requires a more exacting notification than 

§ 2253.047. Specifically, the letter provided as notice (1) isn’t a sworn statement of account and

(2) doesn’t state that the amount claimed is “just and correct.”

3 Compare Ex. 2 to Amend. Compl. 

at 51-52 with Tex. Gov’t Code § 2253.041(c) & (d). Nor does Blue Ribbon meaningfully argue 

that 2J Resources’ letter substantially complied with the Act’s notice requirement under 

§ 2253.041. Cf. Featherlite Bldg. Prod. Corp. v. Constructors Unltd., Inc., 714 S.W.2d 68, 69 

(Tex. App.—Houston [14th Dist.] 1986, writ ref’d n.r.e.). Accordingly, nothing supports Blue 

Ribbon’s efforts to cherry pick the timeline from § 2253.041 and combine it with the more lenient 

substantive notice requirements of § 2253.047.

In short, 2J Resources’ letter can’t perfect Blue Ribbon’s claim for work performed in 

September 2019, as a matter of law. Because the deadlines set forth in the McGregor Act are 

3

In addition, aside from Liberty, the letter wasn’t sent to the remaining defendants—all of whom 

are sureties on the bond. 

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strictly enforced,

4 Blue Ribbon’s claim to recover on the bond for work performed in September 

2019 must also be dismissed. 

D. Claim for October 2019 Work.

There’s no dispute that Blue Ribbon didn’t send Flatiron notice of its October 2019 claim 

by certified or registered mail until it was too late; notice was mailed via certified mail on January 

9, 2020. See Ex. 2 at 77-78 to Amend. Compl. Attached to Blue Ribbon’s live complaint, however,

are two emails dated November 18, 2019, and December 4, 2019, sent by its president to Flatiron. 

See id. at 4-47.These emails informed Flatiron of Blue Ribbon’s October 2019 claim and attached 

the relevant invoices. Defendants don’t dispute that (1) Blue Ribbon timely provided to Flatiron 

the content of notice required by the Act and (2) Flatiron timely received actual notice of Blue 

Ribbon’s October 2019 claim, albeit by email instead of certified or registered mail.

Because the Act specifies in § 2253.048(a) that “[a] notice required by this subchapter to 

be mailed must be sent by certified or registered mail,” at issue with the claim to recover for 

October 2019 work is whether Blue Ribbon sufficiently complied with the statute by providing

email notice.

1. On This Question of State Law, this Court Makes an Erie Guess.

The Court finds no Texas Supreme Court decision addressing whether email notice could

be sufficient under Texas’s McGregor Act. The parties point to hardly any Texas Supreme Court 

decisions addressing the Act at all. Because the Texas Supreme Court hasn’t addressed the issue 

presented, this Court “must make an ‘Erie guess’ and ‘determine as best it can’” what the Texas 

Supreme Court would decide. Howe ex rel. Howe v. Scottsdale Ins. Co., 204 F.3d 624, 627 (5th 

4

See In re Contractor Tech., 529 F.3d at 320 (holding that under Texas law a party cannot 

substantially comply with Chapter 2253 by failing to satisfy its “timing requirements”). 

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Cir. 2000) (quotation marks edited and quoting Krieser v. Hobbs, 166 F.3d 736, 738 (5th Cir.

1999), and other authorities); see also Barfield v. Madison Cnty., Miss., 212 F.3d 269, 271-72 (5th 

Cir. 2000). In this analysis, decisions from Texas’s intermediate courts of appeals provide 

persuasive, but not binding, authority for this Court to consider. Howe, 204 F.3d at 627. Put another 

way, decisions from intermediate Texas appellate courts are “‘a datum for ascertaining state law 

which is not to be disregarded by a federal court unless it is convinced by other persuasive data 

that the highest court of the state would decide otherwise.’” Id. (quotation marks edited and quoting 

Labiche v. Legal Sec. Life Ins. Co., 31 F.3d 350, 351 (5th Cir. 1994)). 

2. The Statute’s Plain Text Controls.

Defendants advance a straightforward plain-text argument: “The Act is unequivocal that 

statutory notice must be mailed ‘by certified or registered mail.’” Mot. at 8 (quoting Tex. Gov’t 

Code § 2253.048(a)). Because notice of the October 2019 claim was transmitted in a timely fashion 

only by email, Defendants urge that the claim is unperfected and should be dismissed for failure 

to comply with the statute’s clear and simple directive. See id. (“Blue Ribbon’s sworn, mailed 

notice was sent too late, and the emails failed to perfect its claim. The case should be dismissed.”).

The Court agrees with Defendants, at least insofar as this Court predicts what the Texas Supreme 

Court would do, even as this Court also follows binding instructions from the Fifth Circuit.

Precedent, as it applies in this Court, favors Defendants’ plain-text position. As noted, 

the Court finds no on-point decision from the Texas Supreme Court or any intermediate appellate 

court in Texas on email notice. The closest decision appears to address whether notice sent by 

regular first-class mail—instead of registered or certified mail—could suffice. The intermediate 

appellate court sitting in Fort Worth, the Second Court of Appeals, held that timely notice sent via 

regular mail (as opposed to registered or certified) is sufficient if it is actually received. See, e.g., 

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Redland Ins. Co. v. Sw. Stainless, L.P., 181 S.W.3d 509, 512 (Tex. App.—Fort Worth 2005, no 

pet.)).

Beyond Redland Insurance, Defendants’ plain-text argument is in tension more generally 

with other decisions from Texas intermediate courts of appeals recognizing that substantial 

compliance with the statue is apparently all that is required, at least when it comes to the substance 

of the notice provided. E.g., United Fire & Cas. Co. v. Boring & Tunneling Co. of Am., 321 S.W.3d 

24, 28 (Tex. App.—Houston [1st Dist.] 2010, pet. denied) (noting, “case law has established that 

adherence to notification deadlines requires strict compliance, but substantial compliance is 

adequate for the other notice provisions”) (citations, brackets, and quotations omitted). These 

decisions, like Redland Insurance, typically invoke the remedial purpose of the Act, a concomitant 

need to liberally construe the Act’s provisions to favor recovery for subcontractors seeking 

payment for work or services provided, and the Act’s purported goal of providing a simple and 

direct method of giving notice and thereby perfecting these types of claims. See, e.g., Redland Ins. 

Co., 181 S.W.3d at 512; Featherlite, 714 S.W.2d at 69 (“Because the McGregor Act is remedial 

in nature, it is to be given the most comprehensive and liberal construction possible.” (internal 

quotation omitted)). These intermediate appellate court decisions, as mentioned, are not binding 

on this Court and need not dictate the Court’s ruling where there is a persuasive reason to depart 

from their reasoning. See Barfield, 212 F.3d at 271-72; Howe, 204 F.3d at 627. There is such a 

reason here. 

The plain-text approach to this statute endorsed by the Fifth Circuit supports

Defendants’ position. As this Court Erie guesses how the Texas Supreme Court would interpret 

the provisions at issue, this Court is also guided by the Fifth Circuit’s approach to interpreting the 

McGregor Act. In re Contractor Technology made clear that “[a]lthough [a court] may well 

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conclude a different result is more appropriate, when a statue is clear on its face, [the court] must 

faithfully interpret it.” 529 F.3d at 320 (citing Waggoner v. Gonzales, 488 F.3d 632, 638 (5th Cir.

2007).5Indeed, the opinion made that salient point in the course of interpreting this very Texas 

statute.

In the context of addressing the timing of a notice’s delivery, In re Contractor Technology

held that strict adherence to the timing deadlines for required notice is mandated. 529 F.3d at 318-

20. The notice provisions of the Act, the Court stressed, are a substantive condition precedent to 

the accrual of a cause of action on the bonds. Id. Moreover, this bright-line approach, the Court 

reasoned, is warranted “no matter how liberally we construe Chapter 2253.” Id. at 319. “Reading 

the Act by its terms” and enforcing the notice deadlines strictly, the Fifth Circuit explained, “does 

not necessarily frustrate [the Act’s] purposes” of protecting claimant bond beneficiaries and 

providing a simple, direct method of perfecting claims, or otherwise “create an absurd 

construction” of the Act. Id. at 32; see also Fid. & Deposit Co. of Md. v. Big Three Welding Equip. 

Co., 249 S.W.2d 183, 185 (Tex. 1952) (“Plaintiffs did not comply with this provision of Art. 5160 

in that they did not file their claims in the required manner and therefore are not entitled to 

recover.”).

6

5

See also Employers’ Liab. Assur. Corp. v. Young Cnty. Lumber Co., 64 S.W.2d 339, 343 (Tex. 

1933) (“The answer is that we are dealing with restrictions and conditions imposed by the very 

statute which creates the right, and those restrictions and conditions may not be relaxed or modified 

to avoid what may appear to be too strict or narrow a rule in a particular case. Such departure from 

the statute in one case would justify similar action in a case somewhat different, and by such course 

the statute would be modified and even nullified.”).

6 Texas intermediate courts of appeals have likewise adopted a bright-line approach to the 

timeliness requirements for notice. See, e.g., United Fire, 321 S.W.3d at 28 (“As a result, case law 

has established that adherence to notification deadlines requires strict compliance, but substantial 

compliance is adequate for the other notice provisions.”); Suretec Ins. Co. v. Myrex Ind., 232 

S.W.3d 811, 816 (Tex. App.—Beaumont 2007, no pet.) (similar).

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Following the Fifth Circuit’s lead—as this Court is bound to do—and notwithstanding a 

number of nonbinding intermediate Texas appellate court decisions taking a less text-based 

approach to other provisions of the Act, this Court concludes that the Texas Supreme Court would 

enforce the Act according to the plain meaning of the unambiguous provisions at issue. The Act 

plainly requires that perfecting a claim necessitates first “mailing” notice and also that such notice 

“must”—not “may” or “can”—be sent by “certified or registered mail.” Tex. Gov’t 

Code § 2253.048(a). Because there is no allegation or argument that notice was timely “mail[ed]” 

here by “certified or registered mail,” the October 2019 claim isn’t perfected as a matter of law 

and must be dismissed. 

This plain-text interpretation not only follows the Fifth Circuit’s lead on the McGregor 

Act, it’s also consistent with the strict plain-text approach to statutory interpretation currently 

utilized by the Texas Supreme Court. First, Texas’s Code Construction Act instructs that the term, 

“must” reflects a condition precedent. See Tex. Gov’t Code Ann. § 311.016(3). Conditions 

precedent of this nature, under Texas law, are typically mandatory and should be enforced. See, 

e.g., Employers’ Liab. Assur. Corp. v. Young Cnty. Lumber Co., 64 S.W.2d 339, 343 (Tex. 1933)

(“The general rule is that where the cause of action and remedy for its enforcement are derived not 

from the common law but from the statute, the statutory provisions are mandatory and exclusive, 

and must be complied with in all respects or the action is not maintainable.”).

Second, the provisions on mailing notice are clear and unambiguous. A required notice 

“must be sent by certified or registered mail.” Tex. Gov’t Code. § 2253.048(a). The statute further 

mandates that “a notice required by this subchapter to be mailed to the prime contractor must be 

addressed to the prime contractor at the contractor’s residence or last known business address.”

Id.(b). Email notice would violate both these provisions. So would notice by text. Or oral notice. 

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Or notice by publication. Or a host of other possible methods of providing notice. The statute’s 

language provides no room for these possible alternatives. Yet at the same time, the statute is less 

exacting on the topic of mailing notice, when notice is mailed to the surety. There, three options 

are provided to satisfy how notice could be addressed (i.e., addressing notice to the address on the 

bond or an attachment, an address on file with the Department of Insurance, or any other address 

permitted by law). Some leniency, therefore, might be expected if a different address were used

when mailing notice to the surety. But even notice sent to these different addresses, the statute 

clarifies, must be sent by certified or registered mail. Email notice, therefore, likely wouldn’t 

satisfy this provision either. In short, email notice could effectively read § 2253.048 out of the 

statute, which the Texas Supreme Court wouldn’t do. See City of Marshall v. City of Uncertain, 

206 S.W.3d 97, 105 (Tex. 2006) (“It is an elementary rule of construction that, when possible to 

do so, effect must be given to every sentence, clause, and word of a statute so that no part thereof 

be rendered superfluous.”) (quotations omitted). 

Third, the statutory text itself provides justification for strictly enforcing the registered-orcertified-mail provision while providing for leniency and permitting substantial compliance with 

respect to the substance of notice provided. To be clear, this Court does not (and surely could not) 

undertake to reconcile the body of case law in the Texas intermediate courts of appeals on the 

McGregor Act’s notice provisions. But much of the case law providing for “substantial 

compliance” with the statute’s requirements for the substance of the notice provided has a hook in 

the statutory text itself: Section 2253.041(c)’s requirement of a sworn statement of account notes 

that the notice should provide “in substance” that “the amount claimed is just and correct” and that 

“all just and lawful offsets, payments, and credits known to the affiant have been allowed.”

Departures in the supplied notice from that precise language, therefore, are expressly authorized 

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by the statutory text’s use of the phrase, “in substance.” In contrast, the notice deadlines that are 

strictly enforced all are preceded by mandatory language in the statute employing the term, “must.”

That mandatory “must” language is repeated in the requirement for mailing by certified or 

registered mail. In other words, the statute instructs when something is mandatory and when 

substantial compliance is good enough.

In reaching its conclusion, the Court recognizes that the United States Supreme Court

refused to find a somewhat similar notice requirement in an early version of the federal public 

works statute constituted a condition precedent to suit where the prime contractor actually received 

written notice of a claim. See Fleisher Eng’g & Constr. Co. v. U.S., for Use & Benefit of 

Hallenbeck, 311 U.S. 15 (1940). To start, the Texas Supreme Court’s interpretation of Texas’s

McGregor Act would not be controlled by the United States Supreme Court’s interpretation of 

related but differently worded provisions of an outdated version of the federal Miller Act. Compare 

40 U.S.C. 3133(b) (2006) with Fleisher, 311 U.S. at 17 n.1 (setting forth Section 2 of the 1935 

Miller Act). Even though the Texas Supreme Court’s interpretation of a Texas statute can be

informed or guided by interpretations of analogous federal statutes, any such consideration would 

not be sufficient on its own to warrant the Texas Supreme Court’s departure from the plain 

meaning of a Texas statute. See Tex. Dep’t of Protective & Regul. Servs. v. Mega Child Care, Inc., 

145 S.W.3d 170, 177 (Tex. 2004) (“If the statutory text is unambiguous, a court must adopt the 

interpretation supported by the statute’s plain language unless that interpretation would lead to 

absurd results.”); see also Prairie View A & M Univ. v. Chatha, 381 S.W.3d 500, 507 (Tex. 2012) 

(“The University counters that this Court has only looked to federal law for guidance in 

circumstances where Title VII and the TCHRA are analogous and that they are no longer 

analogous after the Ledbetter Act. We agree with the University.”).

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Further, a comparison of the text of the McGregor Act and the 1935 version of the Miller 

Act renders Fleisher distinguishable. The McGregor Act conditions a payment bond beneficiary’s

right to recover on it having timely mailed notice. The 1935 version of the Miller Act, in contrast, 

conditioned the bond beneficiary’s right to recover “upon giving written notice to said contractor.” 

Fleisher, 311 U.S. at 18-19 (quoting 40 U.S.C.A. § 270b (1935 version)) (emphasis added). 

Texas’s McGregor Act also separately conditions recovery on notice having been sent by either 

certified or registered mail, which the Act does by requiring that notice “must” be “mail[ed]” by 

either of those methods. See Tex. Gov’t Code §§ 2252.047; 2253.073, 2253.048. The 1935 federal 

Miller Act, however, merely “provide[d] for the mode of service of the notice.” Fleisher, 311 U.S. 

at 19. In other words, the McGregor Act expressly conditions recovery on a notice that is mailed

(with mailing defined by § 2253.048 as registered or certified mail) while the Miller Act 

conditioned recovery only on a claimant giving notice. Accordingly, the Court’s plain-text reading 

of the McGregor Act doesn’t conflict with Fleisher and is consistent with fundamental principles 

of statutory construction.

A final word on statutory purposes and policy. The Fifth Circuit explained in In re 

Contractor Technology that “[r]eading the Act by its terms” and enforcing its plain text “does not 

necessarily frustrate [the Act’s] purposes.” 529 F.3d at 32. Further, important policies are advanced 

by enforcing a bright-line rule here. Although Defendants received actual notice, one wonders 

what they received actual notice of. They didn’t receive actual notice of an indisputably perfected 

claim under the Act because everyone agrees that the sufficiency of email notice is something new. 

It is not the role of this Court to revise and expand Texas statutes to keep pace with the times; that 

is a job best left for the Texas Legislature. See Howe, 204 F.3d at 628 (“The role of this court is 

not ‘to create or modify state law, rather only to predict it.’” (quoting St. Paul Fire & Marine v. 

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Convalescent Servs., 193 F.3d 340, 345 (5th Cir.1999))). And notably, the Texas Legislature 

knows how to include an express provision in a statute to excuse notice requirements when actual 

notice is received, as demonstrated by the Texas Tort Claims Act. See, e.g, Tex. Civ. Prac. & Rem. 

Code § 101.101(c) (“The notice requirements provided or ratified and approved by Subsections 

(a) and (b) do not apply if the governmental unit has actual notice that death has occurred, that the 

claimant has received some injury, or that the claimant’s property has been damaged.”).

E. Attorneys’ Fees. Finally, the Court turns to Defendants’ request to dismiss Blue 

Ribbon’s claim for attorneys’ fees pursuant to Chapter 38 of the Texas Civil Practice & Remedies 

Code. This argument need not be addressed at this time because the predicate claims warrant 

dismissal, and so there could not be any recovery of fees by Blue Ribbon in this case.

Conclusion

For the reasons discussed above, Defendants’ Motion, Dkt. No. 19, is GRANTED. 

Plaintiff Blue Ribbon Staffing LLC’s claims to recover on the payment bond for work performed 

from July through October of 2019 are DISMISSED under Rule 12(b)(6). 

A separate final judgment shall issue. 

IT IS SO ORDERED.

SIGNED this 26th day of January, 2021.

RICHARD B. FARRER

UNITED STATES MAGISTRATE JUDGE

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