COURT OF A PPEAL S EI GHTH D I STRI CT OF TEX AS ELPASO, TEXAS
ELPASO I

NDEPENDEN T SCHOOL DI STRI CT, Appellant,

v. MUNTASSER AL SPI

NI , Appellee

. § § § § § § No. 08-09-00104- CV

Appea l from the County Court at L aw No. 5 of El Paso County , Texas (TC# 2007-4751)

O P I N I O N I n a single issue, Appellant, El Paso I ndepende nt School District (EPI SD), appea ls the trial court’s denial of its mot i o n for summary judgme nt based upon its plea to the jurisdiction. We

reve rse. BACK GR OUND The fac ts rele vant to our resolution o f this appea l arise primarily from two interre lated proce eding s at the trial cour t level: (1) the or igina l lawsuit, and (2) the bill of review.

Original L awsuit On or about Marc h 16, 2004, and May 11, 2004, Appellee Muntasser Alspini (Alspini) filed complaints with the Civil Rights Division of the Texas Workforce C o m m i s s i o n alleg ing he had suffe red national-orig in discrimination and reta liation during his employ ment at EPI SD from ear ly October 2003 throug h May 6, 2004. Then, on J une 3, 2005, Alspini filed suit ag ainst EPI SD and two individuals in Case 2005-3857, alleg ing, in part, that he had suffe red national-orig in discrimination in violation of Texas L abor Code Sections 21.051, 21.056, 21.110, and reta liation in violation of Texas L abor Code Section 21.055. Be cause the claims ag ainst the two individuals wer e ultimatelydismiss ed by the trial court and are not rele vant to our resolution of the issue on appea l, neither those

claims nor the individual def endants will be re fer ence d here afte r. Although it is disputed, there is some e vidence in the rec ord to show that befor e ser vice of proce ss occur

red, counsel for the parties enter ed into neg otiations to resolve the case . The recor d specific ally shows that Br uce Koehler , an attorney with the firm repr esenting E P I S D, co ntacted Alspini’s attorney , Mark Br igg s, prior to service of citation in the case and indicated that a resolution of the issues may be had prior to but not afte r rec eiving service

. Neg otiations betwee n Koehler and Br i gg s rema ined ong oing while Br igg s repr esente d Alspini on this and other non-re lated leg al matters in ear ly 2006. I n May 2006, afte r discussing with Koehler possible retire ment scena rios for Alspini, it beca

me appar ent to Br igg s that further nego t i at i o n s and pretria l resolution of the case would be unsucc essful. B rig g s then proce eded to se rve EPI SD with process on Aug ust 22, 2006. Howeve r, unbeknowns t t o Brigg s, the t rial court had si g ned an order dismiss ing Alspini’s lawsuit in Case 2005-3857 five mont hs ear lier. Br igg s had not rec eived any notice of the hearing at which the trial court dismiss ed the orig inal proce eding

. Nonethele ss, acc ording to Br igg s, upon

rec eiving service of proce ss on Aug ust 22, 2006, EPI SD filed its answe r and plea to the jurisdiction. During a hear ing conducte d on November 20, 2006, the trial court acknow ledg ed the fac t that there was no evidenc e to show that notice of the hear ing had been g iven to Br igg s or Alspini, even though it was the court’s prac tice to do so. The court judicially noticed its fil e and further acknow ledg ed that althoug h the Dis trict Clerk i s require d to send t he parties notice of a dis missal once the court has signe d it, there was no evidenc e that notice of the di smissal had been provi d ed to either party

. The trial court noted to Alspini that it may be possible to reinstate the case in a bill of revie w, and then decla

red that it had lost jurisdiction and signe d an order g ranting EPI SD’s plea to the jurisdiction.Bill of Review

Almost one y ear lat er , o n October 25, 2007, and with differ ent counsel, Alspini filed his orig inal petition for bill of revie w in Case Number 2007-4 7 51. I n the bill-of-re view petition, Alspini: (1) noted that the orig inal proce eding had been dismiss ed without the requ i s i t e n o tice require d by Rule 306(a) (3) of the Texas Rules of Civil Procedur e; (2) rec ited the proce dural history of the orig inal case , including the fac t that EPI SD w as serve d with proce ss in the case on or about Aug ust 22, 2006; (3) asser ted that the dism i s s al wa s t h e result of officia l mistake, was not preve ntable, and was not the result of his fault or neg lige nce; (4) stated that his claims in the orig inal

case wer e meritorious; and (5) asked the trial court to reope n Case Number 2005-3857. Citation issued the following day

and ser vice wa s made upon EPI SD on November 7, 2007. I n its response , EPI SD asser ted that Alspini’s claims wer e barr ed under theories of immunit y and statutes of limit ation. I n its Orde r on Plaintiff’s Bill of Review, the trial court held that the bill of revie w was “not denied” as to EP I SD and rec og nized that EPI SD would be filing a motion for summary judgme nt based upon “the defe nses included within its Plea to the J urisdiction.” The trial court spec ified that the orde r wa s not final and that the c ase r emained pe nding. EPI SD filed its motion for summary judgme nt and ag ain asser ted that Alspini’s claims wer e barr ed as a matter of law based upon both g overnme ntal immunit y as it rela ted to common-law neg lige nce claims ag ainst the school district and the two-y ear statutory limit ation of Section 21.256 of the Texas L abor Code. I n its order , the trial court g rante d EPI SD’s motion for summary judgme nt

as to Alspini’s comm o n -l aw n egli g ence claims but denied the school district any relief as to its statute-of- limit ations defe nse. On appea l, EPI SD asser

ts that the trial court er red in deny ing its motion for summary j u d gm en t an d i ts plea to the jurisdiction there in beca use Alspini did not use due diligenc e inprocur ing se rvice upon it and is barre d by limit ations as a matter

of law. DISCUSSIO N A p p e ll a te c o u r ts h ave limit ed jurisdiction “over final judgme nts and such in te r lo c u to r y o r d e r s

as the leg islature deems appea lable.” Ruiz v. Ruiz , 946 S.W .2d 123, 124 (Tex. App.–El Paso 1997,

no writ). W e are statutoril y g rante d ju ri s d i cti on to revie w an interlocutory order of a county court at law that g rants or denies , as here , a plea to the jurisdiction by a g overnme ntal unit, in this case EPI SD. T E X . C I V . P R A C . & R E M . C O D E AN N . § 51.014(a) (8) (Ve rnon 2008); T E X . C I V . P R A C . & R E M . C O D E A N N . § 101.001(3)( B) (Ve rnon 2005); El Paso County v. Alvarado , 290 S.W .3d 895, 898 (Tex. App.–El Paso 2009, no pet); see Midland ISD v. W hatley , 216 S.W .3d 374, 377-78 (Tex. App.–Eastland 2006, no pe t.). A plea to the jurisdiction is a mecha nism by which a party contests the trial court’s authority to decide a case . Bland Indep. Sch. Dist. v. Blue, 34 S.W .3d 547, 554 (Tex. 2000); El Paso County

v. Navarrete , 194 S.W .3d 677, 682-83 (Tex. App.–El Paso 2006, pet. denied)

. The plea is dilatory and its purpose is to defe at a cause of action without addre ssing the merits of the case . Bland Indep. S ch

. Di s t., 34 S.W .3d at 554; Navarrete , 194 S.W .3d at 683. We revie w de novo a trial co u rt ’s ruling on a plea

to the jurisdiction. Id. at 683. The ti me frame withi n which an action for employ ment discrimination must be brought is set forth in Section 21.256 o f t h e T ex as L abor Code. T E X . L A B O R C O D E A N N . § 21.256 (Ve rnon 2 0 0 6 ). That section provides that “[a] civil action may not be brought under t his subchapte r l ater than t he second anniver sary of t he date the complaint rela ting to the ac tion is filed.” T E X . L A B O R C O D E AN N . § 21.256. Section 21.256 is among the mandatory statutory require ments of the Texas Commi ssion on Human Rights Act (TCHRA), and a failure to comply with the mandatory statutory require ments deprive s a trial court of subject matter jurisdiction in a subsequent lawsuit alleg ingviolations of the Act ag ainst a g overnme ntal entity

. T E X . L A B O R C O D E AN N . § 21.256; T E X . G O V ’ T

C O D E AN N . § 311.034 (Ve rnon 2005); In re United Se rvice s Auto Ass’n , No. 07-0871, — S.W.3d

—, 2010 WL 1136314, at *6 (Tex. Marc h 26, 2010) (“While the L eg islature could make the L abor Code filing deadlines jurisdi ctional, as it has i n case s involving st atutory requirem en t s re l at ing to g overnme ntal entities, see T E X . G O V ’ T C O D E § 311.034 (providing that ‘statutory prer equisites to

a suit, including the provision of notice, are jur i s d i ct i o n al require ments in all suits ag ainst a g overnme ntal entity ’), it has not done so here .”); Balli v. El Paso Indepe ndent School Dist. , 225 1 S.W .3d 260, 265 (Tex. App.–El Paso 2006, pet. g rante d, jdgmt.vac ated) (“[f]ailure to comply with these mandatory statutory require ments deprive s a trial court of subject matter jurisdiction in a subsequent lawsuit alleg ing violations of the A ct”)

. Service of proc ess is achie ved whe n the citation and a copy of the pe tition are deliver ed to the defendant, or the defendant is g iven not ice of the s uit throug h an o t h er au t h o ri zed means. See T E X . R. C I V . P. 99(a)

. Citation serve s the purposes of g iving the court jurisdiction o v er t h e defe ndant, satisfy ing due proce ss require ments, and g iving the defe ndant an opportunity to a ppear and defe nd. Cockrell v. Esteve z , 737 S.W .2d 138, 140 (Tex. App.–San Antonio 1987, no writ). A suit is barr ed by limit ations if the pl aintiff did not exercise dili g ence in obtaining service

. P r o u lx

v. W ells , 235 S.W .3d 213, 215 (Tex. 2007) (per curia m), citing Murray v. San Jacinto Agenc y, Inc. 800 S.W .2d 826, 830 (Tex. 1990); Tarrant County v. Vandigriff, 71 S.W .3d 921, 924 (Tex. App.–For t Worth 2002, pet. denied) , citing Boyattia v. Hinojosa , 18 S.W .3d 729, 733 (Tex. App.– Dallas 2000, pet. denied) ; see also Tranter v. Duemling , 129 S.W .3d 257, 259 (Tex. App.–El Paso

A l t h o u g h t h e p a r t i e s p r e s e n t e d o r a l a r g u m e n t s t o t h e C o u r t o n F e b r u a r y 1 8 , 2 0 1 0 , w e m u s t c o n s i d e r t h e 1 T e x a s S u p r e m e C o u r t ’ s r u l i n g i n I n r e U n i t e d S e r v i c e s A u t o A s s ’ n , N o . 0 7

- 0 8 7 1 , — S

. W

. 3 d

— , 2 0 1 0 W L 1 1 3 6 3 1 4 , a t * 6 , * 8 ( T e x . M a r c h 2 6 , 2 0 1 0 ) , a n d i t s a p p l i c a b i l i t y t o t h i s c a s e . E a c h p a r t y h a s p r o v i d e d s u p p l e m e n t a l a u t h o r i t y a n d a r g u m e n t t o t h e C o u r t s i n c e t h e o p i n i o n i n I n r e U n i t e d S e r v i c e s A u t o A s s ’ n i s s u e d

.2004, no pet.) (to bring persona l injury suit within two-y ear limit atio n , p l ai n t i ff must file petit ion

within the period and f

ile service upon defe ndant). W h en a plaintiff files a petition within the permitted limit ation period but fails to serve a defe ndant within that period, the date of service may rela te back to the date of filing if the plaintiff exercised diligenc e in eff

ecting service

. Vandigriff, 71 S.W .3d at 924; Tranter , 129 S.W .3d at 259. The question of a plaintiff’s diligenc e is ty pically one of f act and can be deter

mined by examining the time it took to secur e citation, service , or both, along with the ty pe of eff ort or lack of eff

ort the plaintiff expended in procur ing s er v i ce . P r o u l x , 235 S.W .3d at 216; M & A Technology, Inc. v. iValue Group, Inc. , 295 S.W .3d 356, 369-70 (Tex. App.–El P as o 2 0 0 9, pet. filed). An offe red explanation must involve diligenc e to seek service

. Rodriguez , 13 S.W .3d at 49, citing Gant v. DeLeon , 786 S.W .2d 259, 260 (Tex. 1990). Whil e the dete rm i n at i on of whether the plaintiff exercised d u e d i l i gen ce is ty pically a fac t question to be deter mined by a jury , the issue may be deter mined as a matter of law if no valid excuse for delay exis ts or i f t he plaintiff’s actions, or inaction, and the lapse of time neg ate dilig ence . Tranter , 129 S.W .3d at 259; Eichel v. Ullah , 831 S.W .2d 42, 43 (Tex. App.–El Paso 1992, no writ). A pl aintiff has a duty to exercise dil ige nce from t he date suit is filed unt il the defendant is actua lly serve d. Rodriguez v. Tinsman & Houser, Inc. , 13 S.W .3d 47, 50 (Tex. App.–San Antonio 1999, pet. denied)

. The two fac tors that control a dete rmination of due dilig ence are : (1) whe ther the pl aintiff acted as an ordinary prudent person would act under t he same circ umstances; and (2) whether the plaintiff ac ted dilige ntly until the defenda

nt was ac tually

serve d. Proulx , 235 S.W .3d at 216; M & A Technology, Inc. , 295 S.W .3d at 369; Tranter , 129 S.W .3d at 259; Eichel , 831 S.W .2d at 43. When a defe ndant has aff irmatively pleade d defe nse limit ations, and when failure to timelyserve the defe ndant has been shown, the burden shifts to the plaintiff to e x plain the delay

. Proulx ,

235 S.W .3d at 216, citing Murray v. San J acinto Agenc

y, Inc ., 800 S.W .2d 826, 830 (Tex. 1990); Seagrave s v. City of McKinney , 45 S.W .3d 779, 782 (Tex. App.–Dallas 2001, no p et .). I f a plaintiff’s explanation for the delay raises a materia l fac t issue reg arding the dil i gence of service eff orts, it become s the defe ndan t ’s burden to conclusively show why , as a matter of law, the plaintiff’s explanation is insufficient. Proulx , 235 S.W .3d at 216, citing Zale Corp. v. Rosenbaum, 520 S.W .2d 889, 891 (Tex. 1975); M & A Technology, Inc. , 295 S.W .3d at 370. Howeve r, in some instances, a plaintiff’s explanation m ay b e l ega lly improper to raise the diligenc e issue and the defe ndant will bear

no burden a t all. Proulx , 235 S.W .3d at 216. When an ag ree ment betwee n attorney s or parties delay s a plaintiff from obtaining service on

a defe ndant, that ag ree ment m ust meet the require ments of Rule 11 of the Texas Rules of Civil Procedur e. T E X . R. C I V . P. 11; Belleza-G onzalez v. Villa , 57 S.W .3d 8, 12 (Tex

. App.–Houston [14t h Dist.] 2001, no pet) (holding t h at an unenfor cea ble oral ag ree ment to delay service was insufficient to show diligenc e as a matter of law); Allen v. City of Midlothian , 927 S.W .2d 316, 320 (Tex. App.–Waco 1996, no writ). Rule 11 provides, “[u] nless otherwise provided in these rules, no ag ree ment betwee n attorney s or parties touching any suit pending will be enfor ced u n l ess it be in writing , signe d and filed with the paper s as part of the rec ord, or unless it be made in open court and enter ed of rec ord.” T E X . R. C I V . P. 11. Unless the specific requirem en t s of Rule 11 are met, no ag ree ments betwee n counsel are enfor cea ble. London Marke t Companies v. Schattman , 811 S.W .2d 550, 552 (Tex. 1991 ) (orig

. proce eding ); Allen , 927 S.W .2d at 320 (holding that even if attorney relied in g ood fa i th upon oral ag ree ment to delay service , plaintiff could not claim t he ex erc ise of “due diligenc e” by rely ing upon the ag ree ment as it wa s clea rly unenfor cea

ble under Rule 11). See T E X . R. C I V . P. 11; Schattman , 811 S.W .2d at 552.Application

Having found that the order deny ing EPI SD’s plea to the jurisdiction is an interlocutory one,

we now a ddress the me rits of EPI SD’s issue on appea l. I n the case at bar , it is undi sputed that the fac ts that form the basis of Alspini’s complaints and lawsuit arose betwee n October 2003 and Marc h 2004. Ne i t h er party disputes that Alspini timely filed his initial complaints with the Texas Workforce Commi ssion on Marc h 16, 2004, as to the national-or igin c laim and on May 11, 2004, as to the re taliation claim. L ikewise, it is uncontested that Alspini timely filed his lawsuit ag ainst EPI SD asser

ting violations of the Texas L abor Code on J une 3, 2005, within the requisite two-y ear time frame s et out in Section 21.256 of the Texas L abor Code. T E X . L A B O R C O D E AN N . § 21.256 (Ve rnon 2006). Howeve r, Alspini did not eff ect service upon EPI SD until Aug ust 22, 2006, a date that is bey ond the two-y ear statutory provision for bring ing action u n der Chapter 21 of the Texas L abor Code. T E X . L A B O R C O D E AN N . § 21.256. Be cause EPI SD has aff irmatively pleade d defe nse limit ations, and beca

use it is clea

r that Alspini failed to timely serve EPI SD, Alspini bear s the burden of explaining the delay

. Proulx , 235 S.W .3d at 216; Murray, 800 S.W .2d at 830; Seagra ve s , 45 S

. W.3d at 782. Consequently , our revie w is nece ssarily restric ted to a deter mination o f wh et h er Alspini exercised due diligenc e as to permit the date of service to rela te back to the date the lawsuit was filed, the reby

secur ing jur isdiction of the case in the trial court. We find that he did not. Whil e an offe red explanation must involve diligenc e to seek service , we note that Alspini’s explanation for his delay in eff ecting service upon EPI SD does not involve any act or attempt on his part to seek or secur e timely service

. Rodri g u ez , 1 3 S.W .3d at 49, citing Gant v. DeLeon , 786 S.W .2d 259, 260 (Tex. 1990)

. Rather, the delay purportedly arose from wha t may be descr ibed as

a “g entlemen’ s ag ree ment” betwee n counsel to delay service whil e p retria l neg otiations wer e attempted. Be cause this oral ag ree ment was not in writing , signe d, and filed with the paper s as partof the rec ord, nor was made in ope n court and enter ed of rec ord, it doe s not me et the require ments

set forth in Rule 11. T E X . R. C I V . P. 11; Belleza-G onzalez , 57 S.W .3d at 12; Allen , 927 S.W .2d at 320. Thus, the oral ag ree ment betwee n counsel was unenfor cea ble. Schattman , 811 S.W .2d at 552; Allen , 927 S.W .2d at 320. See T E X . R. C I V . P. 11; Schattman , 811 S.W .2d at 552. We there fore hold that Alspini’s explanation for the delay of service upon EPI SD, that is, an u n en fo rc ea b l e oral ag ree ment to delay service , is insufficient as a matter of law to show diligenc e of any kind in seeking

or acc omplishi ng timely service

. Belleza-G onzalez , 57 S.W .3d at 11; Tranter , 129 S.W .3d at 259; Eichel , 831 S.W .2d at 43-44; see also Rodriguez , 13 S.W .3d at 51 (holding that notwithstanding a well-intende d g esture of profe ssional courte sy such as direc ting a cler k to delay issuance of citation, wher e there is inac ti v it

y or complete failure to attempt service , even when due to miscommunication, it cannot be said that a pa rty exercised dilig ence or continual diligenc e in attempting service from the time suit was filed until service was a ccomplished). Be cause EPI SD was not proper ly serve d prior to the expiration of the limit ations period and beca use we hold that Alspini did not exercise due diligenc e in attempting to have EPI SD serve d, the date of Alspini’s service upon EPI SD does not rela te back to the orig inal filing of the laws u it. Vandigriff, 71 S.W .3d at 924; Tranter , 129 S.W .3d at 259. Be cause EPI SD is a g overnme ntal entity , Section 21.256 is mandatory and juri s dictional, and Alspini’s failure to diligently serve EPI SD within the two-y ear statutory time fra me of that provision bars his suit and any judicial jurisdiction. T E X . L A B O R C O D E A N N . § 21.256 (Ve rnon 2006); T E X . G O V ’ T C O D E A N N . § 3 1 1.034 (Ve rnon 2005);

see Vandigriff, 71 S.W .3d at 925; In re United Servic es Aut o A ss’n , — S.W .3d —, 2010 WL 1136314, at *6; see also Lotti nger v. Shell Oil Co., 143 F.Supp.2d 743, 753 (S.D.Tex. 2001); Proulx , 235 S.W .3d at 216; Murray, 800 S.W .2d at 830; Boyattia , 18 S.W .3d at 733. We sustain EPI SD’s sole issue on appe al.CONCLUSION

We reve rse the trial court’s denial of EPI SD’s motion for summary jud gm ent and rende r judgme nt that the trial court should have rende red. We g rant EPI SD’s plea to the jurisdiction.

GUADA L UPE RI VERA, J ustice May 19, 2010 Be fore McClure, J., R ivera , J ., and Gua derr ama, Judge Guade rrama, J udg e, sitting by assig nment