Opinion issued August 27, 2024

In The

Court of Appeals 

For The 

First District of Texas 

————————————

NO. 01-23-00620-CV

———————————

HOUSTON INDEPENDENT SCHOOL DISTRICT, Appellant

V.

SUNDRA KANNADY, Appellee

On Appeal from the 125th District Court

Harris County, Texas

Trial Court Case No. 2022-73197

O P I N I O N

In this employment discrimination suit, the Houston Independent School 

District moved to dismiss Sundra Kannady’s claims under Rule 91a of the Texas 

Rules of Civil Procedure. HISD argued Kannady failed to timely exhaust her 

administrative remedies and therefore the trial court lacked subject-matter 
2

jurisdiction. The trial court denied HISD’s motion to dismiss. We reverse the trial 

court’s order and render judgment dismissing Kannady’s claims.

BACKGROUND

After Kannady had worked for the school district for 27 years, HISD 

terminated her employment on August 27, 2021. According to Kannady, HISD 

wrongfully terminated her despite her service as an exemplary employee. She 

believed her termination was the result of age or gender discrimination, or both, and 

she later filed a charge of discrimination with the federal Equal Employment 

Opportunity Commission, or EEOC.

The EEOC issued a right-to-sue letter, notifying Kannady that the agency was 

dismissing her charge but that she had a right to file a lawsuit against HISD within 

90 days. Kannady did so. She sued HISD, alleging age and gender discrimination in 

violation of Chapter 21 of the Texas Labor Code.

HISD filed a motion to dismiss Kannady’s claims as having no basis in law 

or fact under Rule 91a of the Texas Rules of Civil Procedure. HISD argued 

Kannady’s petition showed she did not timely exhaust her administrative remedies 

before filing suit, which is a jurisdictional requirement, and therefore the trial court 

lacked subject-matter jurisdiction. The trial court denied HISD’s motion to dismiss, 

and HISD appeals.
3

DISCUSSION

Standard of Review

Generally, governmental immunity bars suit against the State’s political 

subdivisions like school districts. Gulf Coast Ctr. v. Curry, 658 S.W.3d 281, 284 

(Tex. 2022); Tooke v. City of Mexia, 197 S.W.3d 325, 332 (Tex. 2006). A plaintiff 

suing a governmental unit has the burden to allege facts affirmatively demonstrating 

the trial court’s subject-matter jurisdiction, including a waiver of immunity. Curry, 

658 S.W.3d at 284; Town of Shady Shores v. Swanson, 590 S.W.3d 544, 550 (Tex. 

2019).

A governmental unit may challenge a trial court’s subject-matter jurisdiction 

through a Rule 91a motion to dismiss. See TEX. R. CIV. P. 91a; City of Dallas v. 

Sanchez, 494 S.W.3d 722, 724 (Tex. 2016) (per curiam); City of Houston v. Houston 

Metro Sec., No. 01-22-00532-CV, 2023 WL 2602520, at *3 (Tex. App.—Houston 

[1st Dist.] Mar. 23, 2023, no pet.) (mem. op.). 

Rule 91a permits a party to “move to dismiss a cause of action on the grounds 

that it has no basis in law or fact.” TEX. R. CIV. P. 91a.1. “A cause of action has no 

basis in law if the allegations, taken as true, together with inferences reasonably 

drawn from them, do not entitle the claimant to the relief sought.” Id. “A cause of 

action has no basis in fact if no reasonable person could believe the facts pleaded.”

Id. The trial court may not consider evidence in ruling on a 91a motion; the trial 
4

court must decide the motion based “solely on the pleading of the cause of action, 

together with any pleading exhibits permitted by Rule 59.” TEX. R. CIV. P. 91a.6; 

see also TEX.R.CIV. P. 59 (permitting “[n]otes, accounts, bonds, mortgages, records, 

and all other written instruments, constituting, in whole or in part, the claim sued 

on” to be attached to and made part of pleadings).

We review the merits of a Rule 91a motion de novo. Sanchez, 494 S.W.3d at 

724. “We construe the pleadings liberally in favor of the plaintiff, look to the 

plaintiff’s intent, and accept as true the factual allegations in the pleadings to 

determine if the cause of action has a basis in law or fact.” Houston Metro Sec., 2023 

WL 2602520, at *2.

Generally, we do not have jurisdiction over an appeal from an interlocutory 

order denying a Rule 91a motion to dismiss. Krause v. Mayes, 652 S.W.3d 880, 885 

(Tex. App.—Houston [14th Dist.] 2022, no pet.). But Section 51.014(a)(8) of the 

Texas Civil Practice and Remedies Code authorizes an interlocutory appeal of a trial 

court’s ruling on a plea to the jurisdiction by a governmental unit, including a ruling 

on a Rule 91a motion to dismiss that challenges jurisdiction based on immunity.

TEX. CIV. PRAC. & REM. CODE 51.014(a)(8); San Jacinto River Auth. v. Lewis, 572 

S.W.3d 838, 839 (Tex. App.—Houston [14th Dist.] 2019, no pet.). Therefore, we 

have appellate jurisdiction over this interlocutory appeal.
5

Applicable Law

Chapter 21 of the Texas Labor Code1 prohibits employment discrimination

because of an employee’s “race, color, disability, religion, sex, national origin, or 

age.” See TEX. LAB. CODE § 21.051. Before filing suit against an employer under 

Chapter 21, a plaintiff must exhaust her administrative remedies. Cuadra v. 

Declaration Title Co., LLC, 682 S.W.3d 628, 634 (Tex. App.—Houston [1st Dist.] 

2023, no pet.); see also Prairie View A & M Univ. v. Chatha, 381 S.W.3d 500, 513–

14 (Tex. 2012) (“[A] claimant can bring suit under [Chapter 21] against a 

governmental entity only after a claimant strictly satisfies the procedural 

requirements outlined in [that chapter].”).

To exhaust administrative remedies under Chapter 21, a plaintiff must: (1) file 

a discrimination charge with either the EEOC or the Texas Workforce Commission 

(TWC) within 180 days of the alleged discriminatory act; (2) allow the agency 180 

days to dismiss or resolve the charge; and (3) sue in the district court within 60 days 

of receiving a right-to-sue letter from the agency. TEX. LAB. CODE §§ 21.202, 

21.208, 21.254, 21.256; Drew v. City of Houston, 679 S.W.3d 779, 784 (Tex. App.—

1 Though some courts still refer to this chapter as the Texas Commission on Human 

Rights Act, TCHRA, or CHRA, the Commission on Human Rights was replaced by 

the Texas Workforce Commission civil rights division. Waffle House, Inc. v.

Williams, 313 S.W.3d 796, 798 n.1 (Tex. 2010). Courts often use the terms 

“TCHRA,” “Chapter 21,” and “the Act” interchangeably in opinions discussing this 

chapter. Id.; Jones v. Tex. Dep’t of Pub. Safety, No. 03-20-00615-CV, 2022 WL 

318585, at *1 (Tex. App.—Austin Feb. 3, 2022, no pet.) (mem. op.).
6

Houston [1st Dist.] 2023, no pet.).

Exhausting administrative remedies, including timely exhausting those 

remedies, is a jurisdictional requirement in a suit against a governmental employer. 

See Drew, 679 S.W.3d at 784; see also Specialty Retailers, Inc. v. DeMoranville, 

933 S.W.2d 490, 492–93 (Tex. 1996) (per curiam). Thus, if a plaintiff fails to timely 

exhaust her administrative remedies, the plaintiff has failed to establish the trial 

court’s subject-matter jurisdiction, and the court must dismiss the suit for lack of 

subject-matter jurisdiction. See, e.g., Chatha, 381 S.W.3d at 514, 516 (dismissing 

plaintiff’s Chapter 21 suit for lack of jurisdiction because plaintiff failed to timely 

exhaust her administrative remedies); Drew, 679 S.W.3d at 788 (affirming trial 

court’s order dismissing suit for lack of jurisdiction because plaintiff failed to timely 

exhaust her administrative remedies).

A plaintiff cannot rely on receipt of a right-to-sue letter from the TWC or 

EEOC to establish subject-matter jurisdiction in a suit against a governmental 

employer. Under state law, a plaintiff is entitled to receive a right-to-sue letter after 

the “mere passage of 180 days” from filing a discrimination charge with the TWC,

regardless of the proper exhaustion of administrative remedies. See City of Houston 

v. Fletcher, 63 S.W.3d 920, 923 (Tex. App.—Houston [14th Dist.] 2002, no pet.). 

Similarly, under federal law the EEOC must issue a right-to-sue letter after 180 days 

if the agency chooses to dismiss the plaintiff’s discrimination charge instead of filing 
7

suit. 42 U.S.C. § 2000e-5(f)(1). Issuing the right-to-sue letter is mandatory, 

regardless of the plaintiff’s proper exhaustion of administrative remedies. See id. A 

right-to-sue letter from either the TWC or EEOC does not excuse the administrative 

requirement to timely file a discrimination charge, and the letter cannot confer 

subject-matter jurisdiction. City of Sugar Land v. Kaplan, 449 S.W.3d 577, 580 

(Tex. App.—Houston [14th Dist.] 2014, no pet.); see also Guevara v. H.E. Butt 

Grocery Co., 82 S.W.3d 550, 553 (Tex. App.—San Antonio 2002, pet. denied)

(rejecting plaintiff’s argument that right-to-sue letter conferred subject-matter 

jurisdiction because executive agencies cannot create or confer subject-matter 

jurisdiction); Fletcher, 63 S.W.3d at 923 (concluding that right-to-sue letter is not 

part of exhaustion of administrative remedies).

Analysis

In its first issue, HISD argues Kannady’s pleadings show that she failed to 

timely exhaust her administrative remedies before filing suit, and therefore the trial 

court lacked subject-matter jurisdiction. Specifically, HISD argues that Kannady did 

not timely file her discrimination charge with the EEOC within 180 days of the 

alleged discriminatory practice. 

In her original petition, Kannady alleged HISD terminated her employment 

on August 27, 2021. Thus, she was required to file a discrimination charge within 

180 days of that date, at the latest. See TEX. LAB. CODE § 21.202 (requiring plaintiff 
8

to file discrimination charge “not later than the 180th day after the date the alleged 

unlawful employment practice occurred”); Drew, 679 S.W.3d at 784 (explaining that 

to exhaust administrative remedies, plaintiff must file charge with TWC or EEOC 

within 180 days of alleged discriminatory act).

Kannady makes the conclusory allegation in her petition that she “timely filed 

a charge of discrimination against [HISD] with the Equal Employment Opportunity 

Commission.” However, her petition incorporates by reference her right-to-sue letter 

from the EEOC. The letter, entitled “Dismissal and Notice of Rights,” states: 

The EEOC is closing this charge because your charge was not 

filed within the time limits under the law; in other words, you waited 

too long after the date of the alleged discrimination to file your charge.

Kannady’s petition shows she did not timely file a discrimination charge, and she 

therefore did not timely exhaust her administrative remedies. See TEX. LAB. CODE

§ 21.202; Drew, 679 S.W.3d at 784. Because timely exhausting administrative 

remedies is a jurisdictional prerequisite to suit, Kannady has failed to meet her 

burden to demonstrate the trial court’s subject-matter jurisdiction. See Swanson, 590 

S.W.3d at 550 (stating plaintiff has burden to affirmatively demonstrate trial court’s 

jurisdiction); Chatha, 381 S.W.3d at 513–14 (concluding plaintiff’s discrimination 

claim was jurisdictionally barred because she failed to timely file charge with TWC); 

Drew, 679 S.W.3d at 784 (stating that failure to timely file discrimination charge is 

jurisdictional bar to suit). Therefore, the trial court should have dismissed the suit 
9

for lack of subject-matter jurisdiction. See Chatha, 381 S.W.3d at 514, 516

(dismissing plaintiff’s Chapter 21 suit for lack of jurisdiction because plaintiff failed 

to timely exhaust her administrative remedies); Drew, 679 S.W.3d at 788 (affirming 

trial court’s dismissal of plaintiff’s discrimination claim because she failed to timely 

exhaust her administrative remedies). The trial court erred in denying HISD’s 

motion to dismiss.

Kannady has not argued that she timely filed her discrimination charge with 

the EEOC. Instead, she relies on the right-to-sue portion of the EEOC letter she 

received.

The EEOC right-to-sue letter, after stating that the EEOC was closing 

Kannady’s discrimination charge because she did not file the charge within the time 

limits under law, goes on to state the standard right-to-sue provision: 

This is official notice from the EEOC of the dismissal of your 

charge and of your right to sue. If you choose to file a lawsuit against 

the respondent(s) on this charge under federal law in federal or state 

court, your lawsuit must be filed WITHIN 90 DAYS of your receipt 

of this notice.

Kannady relies solely on the fact that she filed her lawsuit within 90 days of 

receiving the letter to argue the trial court had subject-matter jurisdiction. She argues 

that “the EEOC has the power and authority to issue letters granting . . . the right to 

sue, and did so here.” Kannady’s argument misunderstands the applicable law.

Issuing a right-to-sue letter is mandatory under statute after 180 days when the 
10

EEOC dismisses a discrimination charge. See 42 U.S.C. § 2000e-5(f)(1). An 

executive agency cannot create or confer subject-matter jurisdiction, and a right-tosue letter does not excuse the requirement to timely file a discrimination charge. 

Kaplan, 449 S.W.3d at 580; Guevara, 82 S.W.3d at 553.

Kannady also argues that under state law, she need not have received the rightto-sue letter to file suit; her entitlement to the letter is sufficient to file suit. She is 

generally correct that receiving a right-to-sue letter is not a requirement to file suit. 

See, e.g., Fletcher, 63 S.W.3d 923 (“[I]t is the mere entitlement to the letter that 

exhausts the administrative process . . . . [R]eceipt of a right-to-sue letter is not a 

jurisdictional requirement.”); TEX. LAB. CODE § 21.252 (“Failure to issue the notice 

of a complainant’s right to file a civil action does not affect the complainant’s right 

under this subchapter to bring a civil action against the respondent.”). But receiving 

a right-to-sue letter does not confer jurisdiction or excuse the administrative 

requirement to timely file a discrimination charge. Kaplan, 449 S.W.3d at 580; see, 

e.g., Chatha, 381 S.W.3d at 504, 514, 516 (dismissing plaintiff’s discrimination 

claim for lack of jurisdiction because plaintiff failed to timely file discrimination 

charge with TWC, despite plaintiff having received right-to-sue letter from agency).

Because Kannady’s pleadings show she did not timely exhaust her 

administrative remedies, she failed to meet her burden to establish the trial court’s 

subject-matter jurisdiction. See Swanson, 590 S.W.3d at 550; Chatha, 381 S.W.3d 
11

at 513–14; Drew, 679 S.W.3d at 784. The trial court erred in denying HISD’s Rule 

91a motion to dismiss for lack of subject-matter jurisdiction.

We sustain HISD’s first issue. Therefore, we do not need to consider HISD’s 

second issue regarding whether Kannady adequately pled facts to support her claims. 

See TEX. R. APP. P. 47.1.

Rule 91a does not grant parties an opportunity to replead after the trial court 

has ruled on the motion. Dailey v. Thorpe, 445 S.W.3d 785, 790 (Tex. App.—

Houston [1st Dist.] 2014, no pet.). Further, the jurisdictional defect in this case 

cannot be cured by pleading amendment. See Tex. A & M Univ. Sys. v. Koseoglu, 

233 S.W.3d 835, 837 (Tex. 2007) (in context of plea to jurisdiction, concluding that

when plaintiff’s pleadings cannot be cured of jurisdictional defect, plaintiff is not 

entitled to amend pleadings). Therefore, we deny Kannady’s request to remand the 

case to the trial court to allow her to replead.

CONCLUSION

We reverse the trial court’s order denying HISD’s Rule 91a motion to dismiss

and render judgment dismissing Kannady’s claims.

Gordon Goodman

Justice

Panel consists of Chief Justice Adams and Justices Kelly and Goodman.