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, Appellees.

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.
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I. BACKGROUND

In the spring of 2007, appellant submitted employment applications to HHSC for 

at least 52 open positions. 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 Commission (“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 TEX. LAB. CODE ANN. § 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 against 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 law.

On March 23, 2011, the district court entered a final order in the case, which read 

in relevant part as follows:

In this case, the 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.
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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 statute 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 Government 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 Court 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. Specifically, this Court is of the opinion that it lost jurisdiction 

upon the 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 Defendants are hereby denied.

II. ANALYSIS

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 defeat a cause of action 

by questioning the trial court’s subject matter jurisdiction and should be decided "without 

delving into the merits of the case.” Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 

(Tex. 2000). Subject matter jurisdiction 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 plea to the 

jurisdiction de novo.” Houston Mun. Employees Pension Sys. v. Ferrell, 248 S.W.3d 
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151, 156 (Tex. 2007). In our review, we examine the plaintiff’s petition and evidence 

submitted by the parties “to the extent it is relevant to the jurisdictional issue.” Id.

B. Applicable Law

The Texas Commission 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 court, 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 TEX. LAB. CODE ANN. § 21.202(a) (West 2006). This 

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

TEX. LAB. CODE ANN. §§ 21.201–.202; .204. Section 21.202(b) mandates that “[t]he 

commission shall dismiss an untimely complaint.” 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.” TEX. LAB. CODE ANN. § 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 initial charge with the TWC; otherwise, the claim is barred by the statute of 

limitations. TEX. LAB. CODE ANN. § 21.256 (West 2006). The mere filing of a lawsuit is 

not sufficient 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. 
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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 appellant, the 60-day period is mandatory, but not 

jurisdictional. 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 sixtyday 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 forty 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 Association: “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 Title VII, we conclude that 

the 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’s 
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claims because the claims fall under section 311.034 of the Texas Government Code, 

which as 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 governmental entity.” TEX. GOV’T CODE ANN. § 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 Association, we concluded “that 

the sixty-day filing period contained in section 21.254 of the Act is mandatory but not 

jurisdictional.” See Mission Consol. 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 compels dismissal of a 

complainant’s suit or deprives a trial court of jurisdiction”); see also Ballesteros v. 

Nueces County, 286 S.W.3d 566, 569–70 (Tex. App.—Corpus Christi 2009, pet. 

stricken) (recognizing that section 311.034 addresses provisions of notice that are 

statutory prerequisites to a suit—“something that is required beforehand”). Other courts

have 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, the district court erred in ruling to the contrary and in 
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dismissing appellant’s claims on that basis. Appellant’s sole issue is therefore 

sustained.

III. CONCLUSION

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.