Opinion issued May 9, 2023

In The

Court of Appeals 

For The 

First District of Texas 

————————————

NO. 01-22-00357-CV

———————————

SIX BROTHERS CONCRETE PUMPING, LLC, Appellant

V.

TEXAS WORKFORCE COMMISSION AND MARTIN TOMCZAK, 

Appellees

On Appeal from the 269th District Court

Harris County, Texas

Trial Court Case No. 2021-48218

O P I N I O N

Six Brothers Concrete Pumping, LLC, appeals the trial court’s order granting 

the Texas Workforce Commission’s plea to the jurisdiction. Six Brothers contends 

that, although it failed to comply with a mandatory venue requirement, the 
2

requirement is not a jurisdictional bar to suit, and the commission waived any 

objections to improper venue. In this issue of first impression, we conclude the 

mandatory venue requirement in Chapter 61 of the Labor Code is a statutory 

prerequisite to suit, making failure to adhere to it a jurisdictional bar to suit. 

Therefore, we affirm the trial court’s order granting the commission’s plea to the 

jurisdiction and dismissing the suit.

BACKGROUND

The relevant facts are simple and undisputed. Martin Tomczak, a former 

employee of Six Brothers, filed a wage claim with the commission against Six 

Brothers under Chapter 61 of the Labor Code. The commission found Six Brothers 

owed Tomczak $1,000 in unpaid wages. Six Brothers challenged the commission’s 

finding by filing suit against Tomczak and the commission in district court in Harris 

County. 

After the suit had been pending for about six months, the commission filed a 

plea to the jurisdiction, claiming that Chapter 61 imposed mandatory venue in the 

county where Tomczak resided, which was Montgomery County. The commission 

argued that because the mandatory venue requirement had not been satisfied, the 

district court lacked jurisdiction to hear the case. Six Brothers argued that the 

mandatory venue requirement was not jurisdictional, and the commission waived its 

objection to improper venue by answering without objection. The district court 
3

agreed with the commission and granted its plea to the jurisdiction, dismissing the 

case. Six Brothers now appeals.

It is undisputed that Six Brothers filed suit in a venue other than the venue 

mandated by statute; the only dispute is whether the commission waived its objection 

to the improper venue or whether, in this suit against a governmental entity, venue 

is a statutory prerequisite that implicates the court’s jurisdiction and may be raised 

at any time.

STANDARD OF REVIEW

Sovereign immunity generally bars suits against the state and its agencies 

unless the state consents to suit and waives its immunity. Nazari v. State, 561 S.W.3d 

495, 500 (Tex. 2018); Prairie View A&M Univ. v. Chatha, 381 S.W.3d 500, 512 

(Tex. 2012). A claim of immunity implicates a court’s subject-matter jurisdiction 

and is properly raised by a plea to the jurisdiction. Engelman Irrigation Dist. v. 

Shields Bros., Inc., 514 S.W.3d 746, 751 (Tex. 2017); Tex. Dep’t of Parks & Wildlife 

v. Miranda, 133 S.W.3d 217, 225–26 (Tex. 2004). Subject-matter jurisdiction is an 

issue that cannot be waived by the parties and may be raised at any time. Tex. Ass’n 

of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 445 (Tex. 1993). Whether a court 

has subject-matter jurisdiction is a question of law, and accordingly we review a trial 

court’s ruling on a plea to the jurisdiction de novo. Miranda, 133 S.W.3d at 226, 

228.
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APPLICABLE LAW

Wage Claims

Chapter 61 of the Labor Code governs the payment of wages to employees in 

this state. TEX. LAB. CODE §§ 61.001–.095. If an employee is not paid in accordance 

with that chapter, the employee may file a wage claim with the commission. Id.

§ 61.051. After exhausting administrative remedies within the commission, either 

the employee—the wage claimant—or the employer may bring suit to appeal the 

commission’s order. Id. § 61.062(a). The suit must be filed within 30 days of the 

date the commission’s order is mailed and must name the commission as a 

defendant. Id. § 61.062(b), (c). Section 61.062(d) of the Labor Code establishes a 

mandatory venue for the suit: “The suit must be brought in the county of the [wage] 

claimant’s residence.” Id. § 61.062(d).

Section 61.062 of the Labor Code waives the commission’s sovereign 

immunity to suit, but it is a limited waiver; a party can bring suit against the 

commission under that section if the party strictly satisfies the procedural 

requirements outlined in that section. See Chatha, 381 S.W.3d at 513–14 (discussing 

Chapter 21 of Labor Code).

Statutory Prerequisites in Suits against Government

We defer to the legislature to waive sovereign immunity, and any waiver must 

be “clear and unambiguous.” TEX. GOV’T CODE § 311.034; Tooke v. City of Mexia, 
5

197 S.W.3d 325, 332–33 (Tex. 2006). Following the Supreme Court’s decision in 

University of Texas Southwestern Medical Center at Dallas v. Loutzenhiser, 140 

S.W.3d 351, 354 (Tex. 2004), holding the plaintiff’s failure to comply with a 

statutory pre-suit notice requirement in a suit against a governmental entity did not 

deprive the trial court of jurisdiction, the legislature in 2005 added a final sentence 

to Section 311.034 of the Government Code, legislatively overruling the Court’s 

holding. The final sentence of Section 311.034 provides:

Statutory prerequisites to a suit, including the provision of notice, are 

jurisdictional requirements in all suits against a governmental entity.

TEX. GOV’T CODE § 311.034. Thus, following the legislature’s enactment of this 

final sentence of Section 311.034, when a statutory prerequisite to suit is not met in 

a suit against a governmental entity, the suit must be dismissed for lack of 

jurisdiction. See id.; Chatha, 381 S.W.3d at 515–16 (dismissing suit against 

governmental entity because plaintiff failed to meet statutory prerequisite).

The Texas Supreme Court defined “statutory prerequisite” for the purpose of 

applying the final sentence of Section 311.034. See Chatha, 381 S.W.3d at 511–12.

A statutory prerequisite is a requirement that: (1) is found in the relevant statute; (2) 

is required by the relevant statute; and (3) must be met before the suit is filed. Id.

The Court applied this definition in Chatha to conclude that a 180-day filing 

deadline for discrimination suits was a statutory prerequisite, and the plaintiff who 

failed to meet that deadline must have her claim dismissed for lack of jurisdiction. 
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Id. at 513–14. “[A] statutory prerequisite to suit, whether administrative (such as 

filing a charge of discrimination) or procedural (such as timely filing a lawsuit) is 

jurisdictional when the defendant is a governmental entity.” Id. at 515.

Venue

Venue is the “geographic location within the forum where [a] case may be 

tried.” In re Fox River Real Est. Holdings, Inc., 596 S.W.3d 759, 762 (Tex. 2020)

(orig. proceeding) (alteration in original) (quoting Cantu v. Howard S. Grossman, 

P.A., 251 S.W.3d 731, 734 (Tex. App.—Houston [14th Dist.] 2008, pet. denied)).

Venue is not synonymous with subject-matter jurisdiction. Gordon v. Jones, 196 

S.W.3d 376, 383 (Tex. App.—Houston [1st Dist.] 2006, no pet.). Venue typically 

refers to the county in which a suit may be tried, whereas subject-matter jurisdiction 

refers to a court’s power to hear a particular type of suit. Id. at 382–83. Generally, 

venue is not jurisdictional. See Brown v. Owens, 674 S.W.2d 748, 751 (Tex. 1984) 

(filing suit in improper venue did not deprive court of jurisdiction). Venue, even 

mandatory venue requirements, can be waived “if not challenged in due order and 

on a timely basis.” Gordon, 196 S.W.3d at 383. We presume in most cases the 

legislature did not intend to make any statutory requirement jurisdictional, favoring 

instead the finality of judgments and reducing their vulnerability to later challenges. 

City of DeSoto v. White, 288 S.W.3d 389, 393–94 (Tex. 2009); Dubai Petroleum Co. 

v. Kazi, 12 S.W.3d 71, 76 (Tex. 2000). Because venue is generally not a 
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jurisdictional requirement, if a plaintiff files suit in an improper venue, the defendant 

may usually move to transfer venue. See TEX. CIV. PRAC. & REM. CODE § 15.063 

(court, on party’s motion, shall transfer action to proper venue if filed in improper 

venue); TEX. R. CIV. P. 86 (motion to transfer venue).

The question in this case is whether the mandatory venue requirement in 

Section 61.062(d) of the Labor Code is a statutory prerequisite to suit against a 

governmental entity such that, if the requirement is not met when suit is filed, it 

deprives the trial court of subject-matter jurisdiction.

DISCUSSION

In a single issue on appeal, Six Brothers argues the trial court erred in granting 

the commission’s plea to the jurisdiction because venue generally is not a statutory 

prerequisite implicating jurisdiction and because the commission waived any 

objection to the improper venue.

Six Brothers cites Kshatrya v. Texas Workforce Commission, which held that 

the mandatory venue requirement in Section 61.062(d) of the Labor Code was not a 

jurisdictional requirement. 97 S.W.3d 825, 831 (Tex. App.—Dallas 2003, no pet.).

However, Kshatrya was decided before the legislature enacted the final sentence of 

Section 311.034 of the Government Code, which makes all statutory prerequisites 

to suit against a governmental entity jurisdictional. TEX. GOV’T CODE § 311.034.

Although the Kshatrya court concluded “there is nothing in the statutory language 
8

suggesting [Section 61.062(d)] is a jurisdictional prerequisite,” Kshatrya, 97 S.W.3d 

at 831, the court could not consider whether the mandatory venue requirement is a 

statutory prerequisite within the meaning of the final sentence of Section 311.034

because the legislature had not enacted the final sentence at that time.

1 Kshatrya does 

not answer the question in this case: whether Section 61.062(d)’s mandatory venue 

requirement is a statutory prerequisite to suit within the meaning of Section 311.034.

The commission, on the other hand, cites Landbase, Inc. v. Texas Employment 

Commission, an opinion that predates both Kshatrya and the enactment of the final 

sentence of Section 311.034. 885 S.W.2d 499 (Tex. App.—San Antonio 1994, writ 

denied). Landbase held that the mandatory venue requirement in Section 61.062(d) 

of the Labor Code was a jurisdictional requirement. Id. at 501. As with Kshatrya, 

however, this case does not apply the final sentence of Section 311.034 of the 

Government Code because it was decided before the legislature added that sentence, 

1 Additionally, the Kshatrya court’s holding was also based on a factor the Supreme 

Court has since indicated should not be considered in determining whether a 

statutory requirement is jurisdictional. The Kshatrya court wrote: “If the statutory 

requirement defines, enlarges, or restricts the class of causes the court may decide 

or the relief the court may award, the requirement is jurisdictional.” Kshatrya, 97 

S.W.3d at 830–31 (citing Sierra Club v. Tex. Nat. Res. Conservation Comm’n, 26 

S.W.3d 684, 688 (Tex. App.—Austin 2000), aff’d on other grounds, 70 S.W.3d 809 

(Tex. 2002)). But the Supreme Court has since declined to consider this factor. Tex. 

Mut. Ins. Co. v. Chicas, 593 S.W.3d 284, 290 (Tex. 2019) (“Other courts of appeals, 

including the court in this case, have followed Sierra Club and recognized this as a 

consideration when determining whether a statutory requirement is jurisdictional. 

However, we decline to consider factors other than those set out in our precedent.” 

(citations omitted)).
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and further, this case relies on a precedent the Supreme Court has explicitly 

overruled. The court in Landbase explained that when a cause of action is created 

by statute, rather than the common law, the parties must strictly comply with all 

statutory requirements or else the court lacks jurisdiction. Id. (citing Mingus v. 

Wadley, 285 S.W. 1084, 1087 (Tex. 1926), overruled by Kazi, 12 S.W.3d at 76). But

the Supreme Court overruled the precedent establishing this rationale. Kazi, 12 

S.W.3d at 76 (“We therefore overrule Mingus to the extent that it characterized the 

plaintiff’s failure to establish a statutory prerequisite as jurisdictional.”). Because

Landbase was decided before the legislature enacted the final sentence of Section 

311.034 of the Government Code and relies on an outdated rationale, Landbase also 

does not resolve the question in the present case: whether the mandatory venue 

requirement in Section 61.062(d) of the Labor Code is a statutory prerequisite to suit

within the meaning of Section 311.034.

As neither case cited by the parties directly answers the question in this case, 

we turn to the factors the Supreme Court laid out in Chatha to determine whether a 

statutory requirement is a jurisdictional statutory prerequisite in a suit against a 

governmental entity. A statutory prerequisite is a requirement that: (1) is found in 

the relevant statute; (2) is required by the relevant statute; and (3) must be met before 

the suit is filed. Chatha, 381 S.W.3d at 511–12. If a requirement is a statutory 

prerequisite and the suit is against a governmental entity, then the final sentence of 
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Section 311.034 of the Government Code applies to make the statutory prerequisite 

a jurisdictional requirement. See id. at 512; TEX. GOV’T CODE § 311.034.

In this case, the relevant statute provides: “The suit must be brought in the 

county of the claimant’s residence.” TEX. LAB. CODE § 61.062(d).

The first two Chatha factors are easily satisfied here. The mandatory venue 

requirement in Section 61.062(d) of the Labor Code is found in the relevant statute 

and is required by it. See Chatha, 381 S.W.3d at 511–12. We must determine 

whether the third factor is satisfied—whether the mandatory venue requirement must 

be met before the suit is filed. See id. at 512 (“[T]he term ‘pre’ indicates the 

requirement must be met before the lawsuit is filed.”).

The term “must” in a statute creates a condition precedent. City of 

Madisonville v. Sims, 620 S.W.3d 377, 379 (Tex. 2020) (per curiam); TEX. GOV’T 

CODE § 311.016(3) (in statutory construction, “‘[m]ust’ creates or recognizes a 

condition precedent”). “A condition precedent is an event that must happen or be 

performed before a right can accrue to enforce an obligation.” Centex Corp. v. 

Dalton, 840 S.W.2d 952, 956 (Tex. 1992) Here, Section 61.062(d)’s mandatory 

venue requirement, which provides a suit must be filed in the county of the 

claimant’s residence, creates a condition precedent to suit, and this condition 

precedent is a statutory prerequisite. We conclude that Section 61.062(d)’s 

mandatory venue requirement is a statutory prerequisite to suit.
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This conclusion is consistent with the Texas Supreme Court’s holding in City

of Madisonville v. Sims, in which the Court reasoned that a statutory requirement 

that a plaintiff “must sue” within 90 days to obtain relief created a condition 

precedent and thus a jurisdictional prerequisite to suit.

2 620 S.W.3d at 379.

This conclusion is also consistent with the Austin court of appeals’s holding 

in Scott v. Presidio Independent School District, concluding a statutory venue 

requirement was a statutory prerequisite to suit that could deprive the trial court of 

jurisdiction under Section 311.034. 266 S.W.3d 531, 535–36 (Tex. App.—Austin 

2008), rev’d on other grounds sub nom. Presidio Indep. Sch. Dist. v. Scott, 309 

S.W.3d 927 (Tex. 2010). In Scott, the relevant statute allowed a judicial appeal of 

an administrative decision to be brought in district court in Travis County “if agreed 

by all parties.” Id. at 533 (quoting TEX. EDUC. CODE § 21.307(a)(2)). The court 

noted, and both sides agreed, that the statute was a venue requirement, and, “as a 

general rule,” venue requirements are not jurisdictional. Id. at 535–36. But, the court 

2 This conclusion is also consistent with other cases that have held all statutory 

requirements to suit, even if typically capable of being satisfied after filing suit, 

must be satisfied before the jurisdictional filing deadline to confer jurisdiction on 

the court in a suit against a governmental entity. Stoker v. TWC Comm’rs, 402 

S.W.3d 926, 930 (Tex. App.—Dallas 2013, no pet.) (concluding failure to name 

necessary defendant before jurisdictional filing deadline deprived trial court of 

jurisdiction); accord Richardson v. Tex. Workforce Comm’n, No. 01-13-00403-CV, 

2014 WL 2538621, at *3 (Tex. App.—Houston [1st Dist.] June 5, 2014, pet. denied) 

(mem. op.) (“The requirement to name all defendants within the 14–day filing 

deadline is a jurisdictional requirement that [the plaintiff] had to satisfy.”).
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explained, even though venue requirements generally are not jurisdictional, the 

mandatory nature of the statute at issue “plainly [made it] a condition that must be 

satisfied” before a judicial proceeding could be brought in Travis County. Id. at 535.

As such, it was a statutory prerequisite to suit, and Section 311.034 makes any 

statutory prerequisite to suit against a government entity jurisdictional. Id. at 535–

36.

The court in Scott also noted that courts have used the term “statutory 

prerequisite” to include a number of procedural irregularities that are not otherwise 

considered jurisdictional, and even the Supreme Court used the term “statutory 

prerequisite” to describe the venue provision at issue in Mingus. Id. at 536 (citing 

Dubai, 12 S.W.3d at 76). We must presume the legislature was aware the term has 

acquired this meaning in caselaw, and we must give effect to its intent in using the 

term in Section 311.034. Id. (citing Acker v. Tex. Water Comm’n, 790 S.W.2d 299, 

301 (Tex. 1990); TEX. GOV’T CODE § 311.011(b)).

In response to the commission’s claim that Section 311.034 of the 

Government Code legislatively overruled Kshatrya’s holding, Six Brothers argues 

that more recent cases have affirmed Kshatrya’s holding that the mandatory venue 

requirement in Section 61.062(d) of the Labor Code is not jurisdictional, citing Texas 

Underground, Inc. v. Texas Workforce Commission, 335 S.W.3d 675 (Tex. App.—

Dallas 2011, no pet.). See id. at 674 n.1 (“This Court has concluded that subsection 
13

(d)’s venue provision is not a jurisdictional requirement.” (citing Kshatrya, 97 

S.W.3d at 832)). Notably, though, Texas Underground does not mention Section 

311.034 of the Government Code. Texas Underground mentions Kshatrya in 

passing3 but does not address whether the legislature’s enactment of the final 

sentence of Section 311.034 overruled Kshatrya’s holding. 

Six Brothers also argues venue is not a jurisdictional requirement, citing many 

cases in support. See, e.g., Tex. Emps. Ins. Ass’n v. Singleton, 616 S.W.2d 232, 235 

(Tex. App.—San Antonio 1980, writ ref’d n.r.e.) (venue provision not 

jurisdictional). While that is the general rule, the issue in this case is whether the 

legislature’s enactment of the final sentence of Section 311.034 of the Government 

Code makes a mandatory venue requirement a jurisdictional requirement in suits 

against a governmental entity, an issue that is not resolved in Kshatrya or any of the 

3 We note that the reasoning the Texas Underground court followed to reach its 

conclusion that the statutory requirement at issue was not jurisdictional has been 

called into question. The Texas Underground court relied in part on Kshatrya and 

on the principle that a statute that defines, enlarges, or restricts the class of causes a 

court may decide is jurisdictional, Tex. Underground, 335 S.W.3d at 675, but the 

Supreme Court later said this is not a factor to consider in deciding whether a 

statutory requirement is jurisdictional, see Chicas, 593 S.W.3d at 290.

Additionally, the Texas Underground court concluded the statutory requirement in 

that case was not jurisdictional in part because “[n]othing in the statutory language 

suggests this deadline is a jurisdictional prerequisite to suit.” Tex. Underground, 

335 S.W.3d at 675. However, the Supreme Court in Chatha, which was decided a 

year later, rejected the suggestion that the legislature must “specifically articulate in 

every instance that a plaintiff must comply with a provision or be barred from filing 

suit,” because that would render the final sentence of Section 311.034 meaningless. 

Chatha, 381 S.W.3d at 514.
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cases Six Brothers cites. But see Scott, 266 S.W.3d at 535–36 (concluding mandatory 

venue provision was jurisdictional statutory prerequisite to suit against 

governmental entity in light of Section 311.034 despite venue generally not being 

jurisdictional requirement).

In sum, the mandatory venue requirement in Section 61.062(d) of the Labor 

Code provides that a suit “must be brought in the county of the claimant’s residence.” 

TEX. LAB. CODE § 61.062(d). The term “must” creates a condition precedent, which 

is a statutory prerequisite to suit. TEX. GOV’T CODE § 311.016(3); Sims, 620 S.W.3d 

at 379. A suit under Section 61.062 is necessarily a suit against a governmental entity 

because the commission must be named as a defendant. TEX.LAB.CODE § 61.062(c).

Therefore, Section 61.062(d)’s mandatory venue requirement is a statutory 

prerequisite to suit against a governmental entity, so it is a jurisdictional requirement. 

See TEX. GOV’T CODE § 311.034. Failure to adhere to the mandatory venue 

requirement is a jurisdictional bar to suit. See Chatha, 381 S.W.3d at 512.

Applying this conclusion to the facts of this case, the trial court did not err in 

granting the commission’s plea to the jurisdiction. Six Brothers did not comply with

Section 61.062(d)’s mandatory venue requirement, which is a jurisdictional bar to 

suit that cannot be waived and can be raised in a plea to the jurisdiction at any time. 

See Shields Bros., 514 S.W.3d at 751; Chatha, 381 S.W.3d at 512; Miranda, 133 

S.W.3d at 225–26; Tex. Ass’n of Bus., 852 S.W.2d at 445.
15

CONCLUSION

We affirm the trial court’s order granting the commission’s plea to the 

jurisdiction and dismissing the suit.

Gordon Goodman

Justice

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