### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-17-00521- CV

P at F ree , Appellan t

v. Gr anite P ubl ications, L.L.C., an d Granite P ubl ishi ng Par tners, Inc., Appellees

F ROM TH E DISTRI CT COURT O F TO M GREEN CO UNTY, 51ST JUDICI AL DISTRICT NO. A1602 95C, H ONO RAB LE B ARB ARA L. WALTH ER, JUDGE P RESIDING

O P I N I O N

Pat Fr ee appea ls from the trial court’s order gr anting the pl ea to the j u ri s d i ct i on of
Gra nite Publications, L .L .C., and Gra nite Publis hing Partners, I nc. (jointly , Gra nite) and dismiss ing
Fr ee’ s claims for lack of subject matter jurisdiction. Fr ee sued Gra nite for ag e discrimination pursuant to chapter 21 of the Texas L abor Code, commonly known as the Texas Commi ssion on Human Rights Act (TCHRA). See generally Tex. L abor Code §§ 21.001–.556; see also id. § 21.051 1 (Discr imination by Employ er)

. Gra nite filed a plea to the jurisdiction seeking dismiss al of Fr ee’ s suit for failure to exhaust administrative re m ed i es , specific ally Fr ee’ s failure to file a char g e of

I n 2004, the Texas Commi ssion on Human Rights (TCHR) wa s replac ed with the Tex as 1 Workforce Commi ssion civil rig hts division (TWC). See Tex. L ab. Code § 21.0015. Nonethele ss, courts continue to r efe r to chapte r 21 as the Texas Commission on Human Rights Act or TCHRA. See Prairie View A&

M Univ. v. Chatha , 381 S.W .3d 500, 503 n.1 (Tex. 2012). We likewise ref er to chapter 21 as the TCHRA.discrimination within the 180-day statutory deadline afte r the alleg ed unlawful employ ment prac tice

occur red. See id. § 21.202(a) . For the re asons that follow, we aff irm the trial cour

t’s order

.

BACK GR OUND
Fr ee was terminated from her employ ment with Gra

nite on J anuar

y 15, 2015. On September 24, 2015, she filed a char g e of discrimination w ith the Equal Employ ment Opportunity Commi ssion (EEOC). I n May 2016, Fr ee filed suit ag ainst Gra nite alleg ing ag e di s crimination 2
under the TCHRA. See id. § 21.051(a) (providing in rele vant part that discharg e on basis of ag e is unlawful employ

ment prac tice). Gra

nite filed a plea to the jurisdiction seeking dismiss al of Fr ee’ s claims on the g round that she had failed to exhaust her administrative reme dies by failing to file her char g e of discrimination within the 180-day deadline set out in section 21.20 2 (a) of the TCHRA.
See id. § 21.202(a) (providing that complain t m ust be filed no later than 180th day afte r date of alleg ed unlawful employ

ment prac tice). Fr ee filed a response . After a hear ing, the trial court g rante d
Gra nite’s plea to the jurisdiction and dismiss ed Fr ee’ s claims for lack of subject matter jurisdiction. This appea l followed.

I n 1998, in a Worksharing Ag ree ment to be amende d annually , the TCHR desig nated the 2 EEOC as its limit ed ag ent for the purpose of re ceiving char g es, and a n initial complaint filed with the EEOC is also considere d filed with TWC. Vielma v. Eureka Co. , 218 F.3d 458, 462–63 (5th Cir. 2000); Texas Tech Univ. v. Finley , 223 S.W .3d 510, 513 n.4 (Tex. App.—Amar illo 2006, no pet.). Thus, a claimant may file a complaint with either the EEOC or the TWC. See 40 Tex. Admin. Code § 819.41(c) (2017) (Tex. Workfor ce Comm’n, F iling a Complaint) (providing tha t complaint may be filed w ith TW C or with EEOC); Chatha , 381 S.W .3d at 504 n.4.

2DISCUSSIO N
I n two issues, Fr ee arg ues that the trial court err ed in dismiss ing her claims beca use the 180-day deadline for filing a char g e of discrimination, while mandatory , is not jurisdictional and
t h e t ri al court there fore did not lack subject matter jurisdiction. Some courts have expres s ed 3

uncer tainty about whether failure to exhaust administrative remed i es u n d er the TCHRA is still
trea ted as a jurisdi ctional bar to civil suit. See, e.g. , Alviar v. Macy’s, Inc. , No. 3:16-CV-1633-D , 2017 U.S. Dist. L EXI S 172796, at *6 n.5 (N.D. Tex. Oct. 19, 2017) (re viewing Texas case s that make it “uncle ar whether , under Texas law, exhaustion of reme dies is still trea ted as ‘jurisdictional’” and concluding that it is jurisdictional); Reid v. SSB Holdings, Inc. , 506 S.W .3d 140, 143–47 (Tex. App.—Texarkana 2016, pet. denied) (re view in g c a s e s a n d n o ting uncer

tainty but not rea ching issue);
Y eh v. Chesloff

, 483 S.W .3d 108, 113 (Tex. App.—Houston [1st Dist.] 2015, pet. denied) (obser ving that there ar e q u est ions about whether failure to satisfy chapte r 21’s administrative exhaustion require ment implicates trial court’s jurisdiction in suit betwee n private part i es ). T o place Fr ee’ s
arg uments in co ntext , we first revie w the jurisprudenc e behind the uncer tainty some courts have note d.
For deca des prior to 2000, Texas courts followed the rule set out in Mingus v. W adley that statutory prer equisites to suit are mandatory and jurisdi ctional. See Prairie View A& M Univ.

v. Chatha , 381 S.W .3d 500, 510 (Tex. 2012) (re viewing Texas Supreme Court prec edent conce rning statutory prer equisites and explaining Mingus ); Mingus , 285 S.W

. 1084, 1087 (Tex. 1926) (holding that strict compliance with statutory prer equisites was nece ssary to vest trial court with jurisdiction).

Fr ee doe s not dispute that she failed to file he r complaint within the 180-day deadline. 3 3The Texas Supreme Court applied this rule to chapte r 21 in 1991 when it held that both the 180-day

deadline for filing a char g e of discrimination, s ee T ex . L ab

. Code § 21.202(a) , and the two-y ear deadline for filing suit, see id. § 21.256, are jurisdictional. See Schroede r v. Texas Iron W orks, Inc. , 813 S.W .2d 483, 486, 487 n.10 (Tex. 1991), overruled in part by In re United Servs. Auto. Ass’n , 307 S.W .3d 299, 310 (Tex. 2010) ( USAA ). F ollowing Schroede r , the Texas Supre me Court a g ain h el d in 1996 that the 180-day deadline is jurisdictional. See Johnson & Johnson Med., In c. v. Sanchez , 9 2 4 S. W. 2 d 9 2 5 , 9 2 9 n . 3 ( T e x. 1 9 9 6 ) ; S p e c ia lt y R e ta il e r s v
. D e M o r a n v il le , 9 3 3 S. W. 2 d 4 9 0 , 492 (Tex. 1996) (per curiam). I n 2000, howeve r, i n a case invol ving private parties, the S upreme Court overr

uled Mingus “to the extent that it char acte rized the plaintiff' s failure to establish a statutory prer equisite as jurisdictional.” Dubai Petroleum Co. v. Kazi , 12 S.W .3d 71, 76 (Tex. 2000). I n doing so, the Dubai court noted the “moder n direc tion of policy

. . . to reduc e the vulnera

bility of final judgme nts to att ac k o n t h e g round that the tribunal lacke d subject
matter jurisdiction.” Id. ; see also Chatha , 381 S.W .3d at 510–11 (re viewing prec edent and explaining Dubai ).

“B eca use Dubai involved private litigants, courts of appea ls strug g led with its application to case s ag ainst g overnme ntal defe ndants, cit i n g the appar ent dichotomy [between] Dubai ’s holding [and] the basic tenets of sovere ign immunit y and [t he Supreme Court’s] trea tment of the doctrine in statutory cause s of acti o n . ” Chatha , 381 S.W .3d at 511. I n 2004, the Texas Supreme Court extended its holding in Dubai to g overnme ntal entities. See University of Tex. Sw. Med. Ctr. v. Loutzenhiser , 140 S.W .3d 351, 359, 364 (Tex. 2004), supersede d by statute , Tex. Gov’t Code § 311.034. The Loutzenhiser court rea soned that beca use pre- suit notice was not a condition

4of the statute’s waiv er o f i m m u nity , failure to provide notice was not a jurisdictional defe ct.

See id. at 365; Chatha , 381 S.W

. 3 d at 5 1 1

. I n 2005, in response to Loutzenhiser , the L eg islature amende d section 311.034 of the Texas Gover nment Code, entitled Waiver of Sovereig n I mmunity , t o make notice require ments and all other statutory prer equisites to suit jurisdictio n al as t o
g overnme ntal entities. See Tex. Gov’t C o d e § 3 11.034; Chatha , 381 S.W .3d at 511 (“This amendment evince s the L eg islature’s intent that all statutory prer equisites ar e n o w j urisdictional require ments as to g overnme ntal entities and ar e prope rly asser ted in a plea

to the jurisdiction.”).
I n 2010, in a case i n v o lving private litigants, the Texas Supreme Court ag ain addre ssed the statute of limit ations under chapte r 21. See USAA , 307 S.W .3d 299. The USAA court

rec onsidered w hether

the two-y ear

deadline f

or filing suit under sec tion 21.256 is j urisdictional in light of its holding in Dubai that statutory prer equisites in suits b et we en private litigants are not jurisdictional. Id. at 3 0 5

– 1 0

. I n evalua ting the jurisdictional nature of the statute, the court considere d the statutory lang uag e, the statute’s purpose, and the conseque nces of eac h interpre tation. Id. at 307–10. “I

n keeping with the statute’s lang uag e, Dubai and subsequent case s, as well as the
purpose s b eh i n d TCHRA and fede ral interpre tations of Title VI I ,” the court conclude d that the two-y ear deadline for filing suit under the TCHRA was not jurisdictional and overr uled Schroede r to the extent it held to the contra ry . Id. at 310. 4

After the Texas Supreme Court issued its decision in USAA , this Court, sua spo n t e, 4 withdrew its prior opinion in a case involving a g overnme ntal entity and issued a new opinion addre ssing the Texas Supreme Court’s holding in USAA

. See Lueck v. State , 325 S.W .3d 752, 759–60 (Tex. App.—Austin 2010, pet. denied)

. The Court observe d that the Texas Supreme Court “tre ats the failure to exhaust the TCHRA’s ad m i n i s t rative reme dies as a jurisdictional defe ct,” id. at 762, and conclude d that “‘unle ss and until the supreme court depar ts fr o m its view in Schroede r that the [TC HRA] require s exhaustion of reme dies, we will continue to trea t the 180-day 5I n 20 1 2 , t h e Supreme Court revisited the 180-day deadline for filing a char g e of

discrimination unde r section 21.202(a)

. See Chatha , 381 S.W .3d 500. Be cause the ca se involved

a g overnme ntal defe ndant, the court followed the direc tive of the L eg islature in amende d section
311.034 of the Gover

nment Code. Id. at 514–15. Thus, the court deter mined that section 21.202(a) is a mandatory

statutory prer equisite and he ld that beca use Chatha ha d failed to file he r complaint in acc ordanc e with section 21.202(a) , her suit ag ainst the university was jurisdictionally barr ed. Id. Significa ntly , the court expressly did not decide whether section 21.202 itself, which co n t ains the 180-day deadline for filing a complaint, is jurisdictional. See id. at 510 n.15. The dissent in Chatha pointed out that in USAA , the court had alre ady overr uled its decision in Schroede r that the two-y ear deadline for filing suit in chapter 21 is jurisdictional and urg ed that the c ourt should “put the final nail in Schroede r ’s st at u t e- o f l imitations coff in” and overr

ule its holding in Schroede r that the 180-day deadline for filing the complaint is jurisdictional. Id. at 519 (Jeffer son, J ., dissenting)

. I n
response to the dissent, the majority emphasized that the defe ndant was a g overnme ntal entity and that its decision was g overne d by the L eg islature’s “ straig htforwa rd manda te” in ame nded sec tion
311.034 of the Gove rnment Code that statutory prer equisites are jurisdictional a s to g overnme ntal entities. Id. at 514–16.

Since Chatha , this Court and other courts of appea l have followed its holding that the 180-day deadline is a statutory prer equisite that is jurisdictional in case s involving defe ndants that

filing require ment as ‘manda tory and jurisdictional,’” id. at 763 (quoting Texas Dep’ t of Protective & Regulatory Servs. v. Lynn , No. 03-04-00635- CV, 20 0 5 T ex . App. L EXI S 6682, at *14 (Tex. App.—Austin Aug

. 19, 2005, pet. denied) (mem. op.) (quoting Specialty Retailers v. DeM oranville , 933 S.W .2d 490, 492 (Tex. 1996) (per curia m)). 6are g overnme ntal entities. See, e.g. , Alamo Cmty. Coll. Dist. v. Ryan , No. 04-17 -0 0 1 96-CV,

2017 Tex. App. L EXI S 10250, at *5, *11 (Tex. App.—San Antonio Nov. 1, 2017, no pet. h.) (mem. op.) (“Ry an’s failure to file a claim with the TWC or EEOC within 180 day s deprive d the trial court

o f ju r is d ic ti o n o v e r Ry

a n ’ s c la im s u

n d e r th e T CH RA

. ” ) ; Te

x a s A & M U n iv

. v
. S ta r k s , 5 0 0 S. W. 3 d 5 6 0 , 568 (Tex. App.—Waco 2016, no pet.) (“The t i m el y fi l i ng of a complaint [under the TCHRA] is mandatory , and when the defe ndant is a g o v er n m en t al entity , the failure to timely file is a jurisdictional bar to suit.”) ; Gilles-Gonzal ez v. University of Tex. Sw. Med. Ctr. , No. 05-16-00078- CV, 2016 Tex. App. L EXI S 7845, at *1, *22 (Tex. A pp.—Dallas J uly 22, 2016, no pet.) (me m. op.) (“B eca use her char g e was not f

iled by ‘the 180th da

y afte r the da te the alleg ed unlawful employ

ment prac tice occur

red,’ Gilles-Gonzalez failed to exhaust h er admi nistrative

reme dies, and the trial court had no jurisdiction of her claim.”) ; Harris Cty. Hosp. Dist. v

. Parker , 484 S.W .3d 182, 193 (Tex. App.—Houston [14t h Dist] 2015, no pet.) (“B eca use the ev i d ence conclusively establishes that Parker filed his E E OC char g e more than 180 day s afte r he was denied promotions, the trial court err ed in deny ing t he District’s plea to the jurisdiction as to Parker ’s failure -to-promote claim.”) ; Austin Indep

. Sch. Dist. v. Lofters , No. 03-14-00071- CV,
2015 Tex. App. L EXI S 3115, at *6–7, *15 (Tex. App.—Austin Apr. 1, 2015, pet. denied) (mem. op.) (“We hold that L ofters’ s char g e of rac e discriminat i o n wa s not filed within the 180-day period require d by section 21.202(a)

. The trial court did not have jurisdiction over this claim and err ed by deny ing A I SD’s plea to the jurisdiction.”)

.

This and other appellate courts also h a v e

— w it h out elabor ation and without expressly distinguishing betwee n g overnme ntal and private defe ndants—applied the Schroede r rule that

7section 21.202(a) ’s 180-day deadline is jurisdictional in suits i n v o lving private litigants.

See, e.g. , Gladden-G reen v. Freesc ale Semiconduc tor, Inc. , No. 03-11-00468- CV, 2013 Tex. App.
L EXI S 14168, at *1, *10, *14, *27 (Tex. App.—Austin Nov. 20, 2013, no pet.) (mem. op.) (stating that failure to timely file complaint deprive s court o f s u b j ec t matter jurisdiction, concluding that complaint was untimely , and aff irming summary judgme nt in favor of private employ er) ; ATI Enters., Inc. v. Din , 413 S.W .3d 247, 251, 254 (Tex. App.—Dallas 2013, no pet.) (conc luding that there was no evidenc e that Din had claimed reta liation in his complaint ag ainst private employ er and that trial court lacke d jurisdiction over that claim); Floersheim v. Mot i va Enters., LLC , No. 09-12-0022 9 -C V, 2 013 Tex. App. L EXI S 3961, at *1–2, *6, *14 (Tex. App.—B eaumont Mar. 28, 2013, no pet.) (mem. op.) (affirming summary judgme nt in favor of private employ er on jurisdictional g round that employ ee did not timely file complaint); W illiams-Pyro, Inc. v. Barbour , 408 S.W .3d 467, 470, 475–76 (Tex. App.—El Paso 2013, pet. denied) (citing rule that failure t o exhaust administrative reme dies under TCHRA, beg inning with filing of complaint, deprive s court of subject matter

jurisdiction and concluding that trial court did not lack jurisdiction whe re timely complaint was sufficie nt to put private employ er on notice of claim for ag e discrimination); Dotson

v. TP C Gr o u

p , Inc. , No. 01-14-00233- CV, 2015 Tex. App. L EXI S 2385, at *12, 15 (Tex. App.—Houston [1st Dist.] Mar. 12, 2015, no pet.) (mem. op.) (stating g ener ally t h at “[ f]ailure to timely file an administrative complaint deprive s Texas trial court of subject-matter jurisdiction” and holding that beca

use Do t s o n filed complaint ag ainst private employ er more than 180 day s afte r alleg ed reta liation, tria l c ourt lacke d jurisdiction ove r that claim). But see Y eh , 483 S.W .3d at 113 (whe re trial court denied plea to jurisdiction and case proce eded to trial, fra ming issue on appea l of

8timeliness of complaint as defe nse to liability , rathe r than as jurisdictional bar, in light of “questions”

raised b y Chatha “about whether the failure to satisfy Chapter 21’s administrative exhaustion require ment implicates trial cour t jurisdiction in a suit betwee n private pa rties.”)
I n this context, then, we return to Fr ee’ s a r g u me nts. Fr ee’ s briefing revie ws the Texas Supreme Court’s ruling s rele vant to this issue, including those in Mingus , Schroede r , USAA , Dubai , and Chatha

. She also cites Zipes v. T r a ns W orld Airlines, Inc. , in which the U.S. Supreme Court held that fil i n g a timely char g e of discrimination under Title VI I with the EEOC is not a jurisdictional prer equisite to suit. See 455 U.S. 385, 393 (1982). Fr ee arg ues that while compliance with chap t er 21’s 180-day deadline was not befor e the court in USAA , the logic and case law the
T ex as S u preme Court used to overr ule Schroede r as to the jurisdictional nature of the two-y ea r deadline for filing suit apply equally to the jurisdictional nature of the 180-day deadline. Fr ee urg es that this Court follow t h e re asoning in Chief J ustice J eff erson’ s dissent in Chatha and extend the

re asoning in USAA to the 180-day deadline for filing an administrative complaint, eff ectively

overr uling and “put[ti ng ] the final nail in Schroede r ’s statute-of- limit ations coff in.” See Chatha , 381 SW .3d at 519.

I n short, Fr ee asks us to do what the Texas Supreme Court h as d ec l i n ed to do.
See Chatha , 381 S.W .3d at 500 n.15. Be cause this case does not involve a g overnme ntal defe ndant, the Supreme Court’s holding in Chatha is not deter minative. See id. at 514–15. I n case s involving private litigants, the Texas Supreme Court’s curr ent direc tive on this issue is contained in Schroede r , 813 S.W

. 2 d at 486, and case s following its holding, see, e.g. , Sanchez , 924 S.W .2d at 929 n.3; Specialty Retailers , 933 S.W .2d at 492. Perhaps, as Chief J ustice J eff erson predic ted in his Chatha

9dissent, some day soon a case will squa rely prese nt to the Texas Supre me Court a re quest to apply the Schroede r lang uag e to char acte rize the 180-day deadline as jurisdictional, and perha ps the court will decline to do so. See Chatha , 381 S.W .3d at 522 (Jeffer son, J ., dissenting) . Unless and until that occur s, absent a clea

r holding from the Texas Supreme Court depar ting from the view stated in Schroede r , or a statutory direc tive from the L eg islature, we are b o u n d b y exis ting prec edent

. See Lubbock Cty. v. Trammel’s Lubbock Bail Bonds , 80 S.W .3d 580, 585 (Tex. 2002) (“I t is not the function of a court of appea ls to abrog ate or modify established prec edent. That function lies solely with [t he Texas Supreme] Court.” (citations omitted)); City of New Braunfels v. Stop the Ordinances Please , 520 S.W .3d 208, 224 (Tex. App.—Austin 2017, pet. filed) (“‘ [A] s an intermediate appellate court, we are not fre e to mold Texas law as we see fit but must instead follow the prec edents of the
Texas Supreme Court unless and until the high court overr ules them or the T ex as L eg islature
superse des them by statute.’” (quoting Petco Animal Supplies, Inc. v. Schuster , 144 S.W .3d 554, 565 (Tex. App.—Austin 2004, no pet.)))

. For now, we ar e co m p el l ed to hold that the district court lacke d subject matter jurisdiction over Fr ee’ s claims. See Stop the Ordinances , 520 S.W .3d at 224;
But cf

. Chatha , 381 S.W .3d at 518 (Jeffer son, J ., dissenting) (obser ving that failure to comply with statutory requisite g ener ally g oes to rig ht to maintain suit and whether plaintiff is enti t l ed to seek relief , as opposed to jurisdiction of court to order relief reque sted) (quoting Dubai , 12 S.W .3d 3d at 76–77). We there fore conc l u d e that the trial court did not err in g ranting Gra nite’s plea to the jurisdiction. W e over

rule F ree ’s issues.

10CONCLUSION Having overr

uled Fr ee’ s issues, we af

firm the trial c ourt’s order g ranting Gra nite’s plea to the jurisdiction.

__________________________________________ Melissa Goodwin, Jus tice
Be fore Chief J ustice Rose, Jus tices Pemberton a nd Goodwin Affir med Filed: Jul y

25, 2018

11