### NUMBER 13 - 11 - 00167 - CV COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI - EDINBURG

JOSE P. BALDONADO , Appellant,

v. TEXAS DEPARTMENT OF HEALTH AND HUMAN SERVICES COMMISSION, AND THE TEXAS DEPARTMENT OF AGING AND DISABILITY SERVICES , Appellee s .

On appeal from the 445th District Court of Cameron County, Texas.

MEMORANDUM OPINION Before Chief Justice Valdez and Justices Garza and Benavides

Memorandum Opinion by Chief Justice Valdez By one issue, appellant, Jose P. Baldonado , appeals from the district court’s order granting the plea to the jurisdiction of appellees, Texas Department of Health and Human Services Commission (“HHSC”) and Texas Department of Aging and Disability Services (“DADS”)

. We reverse and remand

.2 I. B ACKGROUND In the spring of 2007, appellant submitted employment applications to HHSC for at least 52 open posit ions. Appellant, who is over forty years of age, was passed over for all positions. On August 30, 2007, appellant signed and filed a charge of discrimination with the Equal Employment Opportunity Commission (“EEOC”). On June 26, 2008, appellant received from the Texas Workforce Commissio n (“TWC”) a notice of his right to file a civil action. On August 25, 2008, appellant filed suit against HHSC , alleging that HHSC refused to hire him because of his age in violation of the Texas Labor Code

. See T EX

. L AB

. C ODE A NN . § 21. 051 (West 2006). Service of process did
not occur until September 3, 2008. On November 16, 2009, appellant filed an amended petition, naming DADS as a co

- defendant and alleging that DADS terminated his employment in retaliation for filing a discrimination complaint agains t HHSC. See id. § 21.055 (West 2006). On October 18, 2010, appellees filed a combined motion for summary judgment and plea to the jurisdiction. On November 30, 2010, the district court held a hearing on appellees’ plea to the jurisdiction. Appellees argued that the district court lacked jurisdiction because appellant did not both file and serve his lawsuit within the 60

- day period prescribed by l aw. On March 23, 2011, the district court entered a final order in the case, which read in relevant part as follows : In this case, t he Plaintiff had a statutory 60[

- ] day deadline to file suit and effectuate service; the Plaintiff filed suit on the 60th day , but he did not serve the Defendant governmental entity until the 65th day.3

The argument of due diligence has been accepted in limited scenarios as an equitable basis to toll statute of limitations deadlines; and for the record, as to any applicable stat ute of limitations issues, this Court believes that due diligence was met by the Plaintiff. However, this Court has been presented with no legal basis to support the Plaintiff’s argument that due diligence may toll jurisdictional deadlines. Texas Govern ment Code § 311.034 states as follows: “Statutory prerequisites to a suit including the provisions of notice, are jurisdictional requirements in all suits against a governmental entity.” Based upon its review of said statute and relevant case law, this C ourt interprets the legislative intent of said statutory language to require filing of suit AND service of citation be completed upon a governmental entity prior to the termination of the statutory deadlines, in order for a court to retain jurisdiction. S pecifically, this Court is of the opinion that it lost jurisdiction upon t he expiration of a statutory 60[

- ] day deadline; the Plaintiff’s due diligence argument as to notice is NOT applicable on the issue of jurisdiction; a court either has jurisdiction or it does not have jurisdiction. Further, the Court would note the pertinent dictum of the above referenced statute in the following Texas Supreme Court cases: In re United Services Automobile Association , 307 S.W. 3d 299, 308 (Tex. 2010), and University of Texas Southwestern Medical Center at Dallas v. Estate of Arancibia , 08

- 0215 (TXSC October 2010). Based upon the foregoing, this Court has no option but to GRANT the “Defendants’ Plea to the Jurisdiction”; further, the Plaintiff’s claims against the Def endants are hereby denied. II. A NALYSIS In his sole issue, appellant argues that the trial court erred in dismissing his lawsuit for lack of jurisdiction. A
. Standard of Review A plea to the jurisdiction is a dilatory plea that seeks to de feat a cause of action by questioning the trial court’ s subject matter jurisdiction and should be decided "without delvi ng into the merits of the case.” Bland Indep. Sch. Dist. v. Blue , 34 S.W.3d 547, 554 (Tex. 2000). Subject matter jurisdic tion is at the heart of a court’ s power to decide a

case. See id

. “ We review a trial court's order granting or denying a pl ea to the jurisdiction de novo.” Houston Mun. Employees Pension Sys. v. Ferrell , 248 S.W.3d4

151, 156 (Tex. 2007). In our r eview, we examine the plaintiff’ s petition and evi dence submitted by the parties “ to the extent it is relevant to the jurisdictional issue. ” Id. B
. Applicable Law The Texas C ommission on Human Rights Act (“ TCHRA ” ) establishes a comprehensive administrative review system for obtaining relief from unlawful employment practices. Schroeder v. Tex. Iron Works, Inc ., 813 S.W.2d 483, 485 (Tex. 1991). Before suing in state co urt, a person must exhaust his administrative remedies under the Act by first filing a complaint with the TWC within 180 days of the alleged discriminatory act. Id

.; see also T EX

. L AB

. C ODE A NN

. § 21.202(a) (West 2006 )

. This allows the TWC an opportunity to promptly investigate the alleged violation. See , e.g ., T EX

. L AB

. C ODE A NN

. §§ 21.201

– .202; .204. Section 21.202(b) mandates that “ [t] he commission shall dismiss an untimely compl aint.” Id. § 21.202(b). This 180

- day deadline is mandatory and “ failing to comply deprives the court of subject matter jurisdiction.” Schroeder , 813 S.W.2d at 485

– 86. Section 21.254 of the Texas Labor Code provides: “Within 60 days after the date a notice of the right to file a civil action is received , the complainant may bring a civil action against the respondent.” T EX

. L AB

. C ODE A NN

. § 21.254 (West 2006 ) ; Tarrant County v. Vandigriff

, 71 S.W.3d 921 (Tex. App.

— Fort Worth 2002, pet. denied)

. A complainant must file a civil action on his claim within two years from the date he filed his i nitial charge with the TWC ; otherwise, the claim is barred by the statute of limitations. T EX

. L AB

. C ODE A NN

. § 21.256 (West 2006 )

. The mere filing of a lawsuit is not sufficie nt to meet the requirements of “bringing suit” within the limitations period; rather, a plaintiff must both file her action and have the defendant served with process.5

Boyattia v. Hinojosa , 18 S.W.3d 729, 733 (Tex. App.

— Dallas 2000, pet. denied) ; see also Vandigriff

, 71 S.W.3d at 924

. Nonetheless, the date of service relates back to the date of filing if the plaintiff exercised diligence in effecting service. Instrument Specialties, Inc. v. Tex. Employment Comm'n , 924 S.W.2d 420, 422 (Tex. App.

— Fort Worth 1996, writ denied). C

. Discussion According to appellant, the fact that HHSC was served with the lawsuit outside the 60

- day period does not on its own deprive the district court of subject matter jurisdiction. According to a ppellant , the 60

- day period is mandatory, but not juri sdictional. See Mission Consol. Indep. Sch. Dist. v. Garcia , 314 S.W.3d 548 , 559 (Tex. App.

— Corpus Christi 2010, pet. granted) (“ We therefore conclude that the sixty

day filing period contained in section 21.254 of the TCHRA is mandatory but not jurisdictional. ”) ; cf. Tex. Dep’t of Transp. v. Beckner , 74 S.W.3d 98, 103 (Tex. App.

— Waco 2002, no pet.) (“[W] e first find that the forty

- day filing period is a limitations period, not a jurisdictional requirement. If a petition is not filed within the f orty days, the defendant may assert an affirmative defense of limitations under Rule 94 .”). Appellees acknowledge the holding of the Texas Supreme Court in In re United Services Automobile Ass ociation : “ In keeping with the statute’ s language, Dubai [ Petroleum Co. v. Kazi , 12 S.W.3d 71 (Tex. 2000),] and subsequent cases, as well as the purposes behind TCHRA and federal interpretations of T itle VII, we conclude that
t he two

- year period for filing suit is mandatory but not jurisdictional, and we overrule Schroeder to the extent it held otherwise. ” 307 S.W.3d 299, 310 (Tex. 2010). Nonetheless, appellees contend that the district court properly dismissed appellant’s6

claims because the claims fall under section 311.034 of the Texas Government Code, which a s the Texas Supreme Court acknowledged in its opinion, provides that “ statutory prerequisites to a suit, including the provision of notice, are jurisdictional requirements in all suits against a govern mental entity.” T EX

. G OV ’ T C ODE A NN

. § 311.034 (West Supp.
2010 ). According to appellees, section 311.034 applies to the claims because of appellees’ status as governmental entities. This Court has previously addressed the issue of whether section 311.034 applies to Texas Labor Code filing deadlines. After considering the Texas Supreme Court’s decision in In re United Services Automobile Ass ociation , we concluded “ that the sixty

- day filing period contained in section 21.254 of the Act is mandatory but not jurisdictional.” See Mission Conso l. Indep. Sch. Dist. , 314 S.W.3d at 559 ( providing that section 21.254 “ does not explicitly say that failure to comply with the sixty

- day deadline for a complainant to file suit after receiving a right

- to
- sue letter com pels dismissal of a complainant’ s suit or deprive s a trial court of jurisdiction”) ; see also Ballesteros v. Nueces County

, 286 S.W.3d 566, 569

– 70 (Tex. App.

— Corpu s Christi 2009, pet. stricken) (recognizing that section 311.034 addr esses provisions of notice that are
stat utory prerequisites to a suit

— “something that is required beforehand”)

. Other court s ha ve reached the same conclusion. See McCollum v. Tex. Dep ’ t of Licensing & Regulation , 321 S.W.3d 58 , 64 (Tex. App.

— Houston [1st Dist.] 2010, pet. denied) (“ Because section 21.254 is not jurisdictional, the trial court erred by granting the Department ’ s plea to the jurisdiction. ”) ; see also Windle v. Mary Kay, Inc. , No. 05

- 02

- 00252

- CV, 2003 Tex. App. LEXIS 5594, at *4 (Tex. App.

— Dallas July 1, 2003, pet. denied) (mem. op.). Accordingly, t he district court erred in ruling to the contrary and in7

dismissing appellant’s claims on that basis . Appellant’s sole issue is therefore sustained. III. C ONCLUSION The order of the district court is reversed and the case remanded for further proceedings not inconsistent with this opinion.

____________________ ROGELIO VALDEZ Chief Justice

Delivered and filed the 29th day of March , 2012.