Opinion issued June 5, 2014.




                                       In The

                                Court of Appeals
                                      For The

                           First District of Texas
                              ————————————
                               NO. 01-13-00403-CV
                             ———————————
                        ALMA RICHARDSON, Appellant
                                          V.
   TEXAS WORKFORCE COMMISSION AND FORT BEND COUNTY,
                    TEXAS, Appellees



                    On Appeal from the 240th District Court
                           Fort Bend County, Texas
                     Trial Court Case No. 12-DCV-200428


                           MEMORANDUM OPINION

      This appeal arises out of a lawsuit Alma Richardson filed to challenge a

Texas Workforce Commission (TWC) decision denying her unemployment

benefits. Richardson appeals the trial court’s order granting pleas to the jurisdiction
in favor of TWC and her former employer, Fort Bend County, Texas. In one issue,

Richardson contends that the trial court erred in dismissing her case because her

amended pleadings satisfied section 212.201 of the Texas Labor Code. We affirm.

                                  Background

      Richardson was a Fort Bend County employee for less than one year. After

resigning from her position, Richardson filed for unemployment benefits. In the

TWC administrative proceedings evaluating Richardson’s eligibility for benefits,

Fort Bend County was represented by the Texas Association of Counties (TAC) as

its administrative group representative. TWC initially determined that Richardson

was eligible for unemployment benefits; however, after Fort Bend appealed that

decision, TWC reversed its ruling and denied Richardson unemployment benefits.

Richardson twice appealed TWC’s decision.

      On January 4, 2011, TWC issued a final decision on Richardson’s case and,

on January 18, 2011, that decision became final under Texas Labor Code section

212.153. See TEX. LAB. CODE ANN. § 212.153 (West 2006).

      On February, 1, 2011, the last day to file for judicial review, Richardson

filed a lawsuit against TAC and TWC, seeking review of TWC’s decision. See

TEX. LAB. CODE ANN. § 212.201(a)–(b) (West 2006). TAC filed a motion for

summary judgment, arguing that it had never been Richardson’s employer or a

party to the TWC administrative proceedings. Richardson non-suited TAC and,



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over 21 months after TWC’s decision became final, she filed a second amended

petition, asserting claims against TWC and Fort Bend County. In response to

Richardson’s amended petition, both TWC and Fort Bend filed pleas to the

jurisdiction asserting that Richardson failed to meet the jurisdictional requirements

of section 212.201 of the Texas Labor Code by failing to list all necessary parties

as defendants by the statutory deadline.

      Richardson responded, arguing that it was “exceedingly confusing as to who

to name as the defendant” when filing her suit, and that, despite her error in

naming TAC as a defendant, “public policy, equity, and good conscience dictate

that [her] small error not stand in the way” of gaining access to judicial review.

The trial court granted both pleas to the jurisdiction.

      Richardson timely appealed.

                              Pleas to the Jurisdiction

      Richardson contends that the trial court erred by granting TWC’s and Fort

Bend’s pleas to the jurisdiction because her failure to include Fort Bend in her

original petition was a “harmless error at best.” She contends that naming TAC as

a defendant was “rationally based” on her unemployment claim and that it was

“exceedingly confusing” to know whom to name as defendants.




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A.    Standard of review

      Governmental sovereign immunity deprives a trial court of jurisdiction over

lawsuits against a governmental entity unless the legislature has given consent to

be sued. See Mission Consol. Indep. Sch. Dist. v. Garcia, 372 S.W.3d 629, 636

(Tex. 2012); City of Houston v. Rhule, 377 S.W.3d 734, 744 (Tex. App.—Houston

[1st Dist.] 2012), rev’d on other grounds, 417 S.W.3d 440 (Tex. 2013). A

governmental entity may challenge a trial court’s subject matter jurisdiction to hear

a case through a plea to the jurisdiction. Rhule, 377 at 744. A plea to the

jurisdiction is a dilatory plea that seeks dismissal of a case for lack of subject

matter jurisdiction. Harris Cnty. v. Sykes, 136 S.W.3d 635, 638 (Tex. 2004).

Whether a court has subject matter jurisdiction is a question of law that we review

de novo. Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex.

2004).

      Review of a plea challenging the existence of jurisdictional facts “mirrors

that of a traditional summary judgment motion.” Garcia, 372 S.W.3d at 635. The

defendant must meet the summary-judgment proof standard for its assertion that

the trial court lacks jurisdiction as a matter of law and that no disputed issue of

material fact exists. Id. Once the defendant meets that burden, the plaintiff then has

a burden of showing that a disputed material fact does exist regarding the




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jurisdictional issue. Id.; Miranda, 133 S.W.3d at 228. If the plaintiff succeeds in

raising a fact issue, the trial court should deny the plea. Garcia, 372 S.W.3d at 635.

      When reviewing the grant of a plea to the jurisdiction, appellate courts

review the evidence presented to the trial court, not the agency record. See

Nuernberg v. Tex. Emp’t Comm’n, 858 S.W.2d 364, 365 (Tex. 1993). We “take as

true all evidence favorable to the nonmovant” and “indulge every reasonable

inference and resolve any doubts in the nonmovant’s favor.” Miranda, 133 S.W.3d

at 228. If there is no fact issue regarding the court’s lack of subject matter

jurisdiction, the judgment granting the plea should be affirmed. See id. at 234.

B.    Jurisdictional prerequisites for a section 212.201 suit

      To file a lawsuit against a governmental entity, the movant must satisfy all

of the statutory prerequisites to a suit, including the provision of notice. Prairie

View A&M Univ. v. Chatha, 381 S.W.3d 500, 511 (Tex. 2012). Statutory

prerequisites to a suit are jurisdictional requirements. Id.

      Section 212.201 of the Texas Labor Code establishes jurisdictional

prerequisites for appealing a TWC decision granting or denying benefits. TEX.

LAB. CODE ANN. § 212.201. Subsection (a) requires such suits to be filed in a court

of competent jurisdiction, no later than 14 days after the TWC’s decision becomes

final. Id. § 212.201(a). A decision becomes final 14 days after the date that the

decision is mailed. Id. § 212.153. Section 212.201(b) requires the plaintiff to name



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each party to the proceeding before the TWC as a defendant in an action. Id. §

212.201(b). Failure to meet the jurisdictional requirements of section 212.201

precludes a movant from seeking judicial review of a TWC decision. Chatha, 381

S.W.3d at 514–15; Heart Hosp. IV, L.P. v. King, 116 S.W.3d 831, 838 (Tex.

App.—Austin 2003, pet. denied) (holding that 14-day deadline is jurisdictional

prerequisite and that trial court lacked jurisdiction to review TWC decision

denying benefits when plaintiff filed petition after deadline); Kelley v. Tex.

Workforce Comm’n, No. 01-05-01110-CV, 2006 WL 3804451, at *2 (Tex. App.—

Houston [1st Dist.] 2006, pet. denied) (mem. op.) (same); see also Stoker v. TWC

Comm’rs, 402 S.W.3d 926, 930 (Tex. App.—Dallas 2013, no pet.) (affirming trial

court order granting TWC’s plea to jurisdiction because movant failed to name “all

the necessary defendants within the limitations period”).

C.    Whether Richardson’s amended pleadings complied with the section
      212.201 jurisdictional requirements

      Richardson concedes that her original petition failed to meet the

jurisdictional requirements of section 212.201. But she insists that this mistake was

made in good faith because the “documents [she] received during her

administrative appeals made it exceedingly confusing as to who to name as the

defendant.” She contends that the trial court should have permitted her to amend

her initial petition because her pleadings were “insufficient to demonstrate, [but

they did] not affirmatively negate, subject matter jurisdiction.” Richardson relies


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on Dahl ex. rel. Dahl v. State, 92 S.W.3d 856, 860–61 (Tex. App.—Houston [14th

Dist.] 2002, no pet.) to support her contention that her amended pleadings cured

any defects in her original petition.

      In Dahl, the court of appeals considered whether sovereign immunity

precluded a landowner from bringing an inverse condemnation claim against the

State. Id. at 859. In discussing the circumstances under which a plaintiff might be

permitted to amend her pleadings to invoke the court’s jurisdiction, the court stated

that “if a plaintiff’s pleadings are insufficient to demonstrate, but do not

affirmatively negate jurisdiction, the proper remedy is to allow the plaintiff an

opportunity to amend before dismissing.” Id. at 861. But the court cautioned that a

plaintiff should not be given the opportunity to amend her pleadings when, “as in

sovereign immunity cases, the lack of subject-matter jurisdiction can be cured only

by the opposing party’s consent to be sued.” Id. at 861.

      Richardson fails to establish that section 212.201 authorizes waiver of state

sovereign immunity when a plaintiff files an amended petition after the 14 day

deadline. Contrary to Richardson’s contentions, courts of appeals have repeatedly

resolved the same issue in TWC’s favor. See, e.g., Wren v. Tex. Emp’t Comm’n,

915 S.W.2d 506, 509 (Tex. App.—Houston [14th Dist.] 1995, no writ); Lambeth v.

Tex. Unemp’t Comp. Comm’n, 362 S.W.2d 205, 207 (Tex. Civ. App.—Waco 1962,

writ ref’d) (addressing section 212.201 predecessor statute). These decisions affirm



                                         7
the Texas Supreme Court’s decision in Chatha that statutory requirements must be

satisfied to confer jurisdiction on the trial court. See Stoker, 402 S.W.3d at 929–30.

The requirement to name all defendants within the 14-day filing deadline is a

jurisdictional requirement that Richardson had to satisfy. See TEX. LAB. CODE

ANN. § 212.201.

      Richardson argues that her amended petition satisfied the jurisdictional

requirements by naming all of the necessary defendants and, therefore, her petition

should be considered timely. 1 We disagree. “[I]f an employer who was a party to

the proceedings before the [TWC] was not made a defendant within the statutory

time limit, the petition may not be amended thereafter to cure the jurisdictional


1
      “Ordinarily, an amended pleading adding a new party does not relate back to the
      original pleading.” Univ. of Tex. Health Sci. Ctr. at San Antonio v. Bailey, 332
      S.W.3d 395, 400–01 (Tex. 2011). This rule is subject to two exceptions: misnomer
      and misidentification—neither of which applies in this case. Id. Richardson did
      not establish grounds for granting equitable tolling of the statute of limitations
      based on her contention that her amended pleadings corrected a misidentification
      or misnomer. See In re Greater Houston Orthopaedic Specialists, Inc., 295
      S.W.3d 323, 325 (Tex. 2009) (A misnomer occurs when a “party misnames itself
      or another party, but the correct parties are involved” and a misidentification
      occurs when “two separate legal entities exist and a plaintiff mistakenly sues an
      entity with a name similar to that of the correct entity.”); see, e.g., Reddy
      P’ship/5900 N. Freeway L.P. v. Harris Co. Appraisal Dist., 370 S.W.3d 373, 376–
      77 (Tex. 2012) (holding that trial court had subject matter jurisdiction over suit
      despite plaintiff’s amendment to original petition to correct entity name from
      “Reddy Partnership, ETAL” to “Reddy Partnership/5900 North Freeway, L.P.”);
      see also State Office of Risk Mgmt. v. Herrera, 288 S.W.3d 543, 548 (Tex. App.—
      Amarillo 2009, no pet.) (holding that statute of limitations was not tolled when
      plaintiff sued municipal entity instead of city because those two entities were “not
      related entities that operate or carry on their respective functions under a similar
      trade name”).

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defect.” Wren, 915 S.W.2d at 509; see also Kelley, 2006 WL 3804451, at *2

(upholding plea to jurisdiction because plaintiff’s amended petition naming

additional defendants came “too late”—almost four months after statutory

deadline).

      In Wren, the plaintiffs filed their original petition within 14 days of the TWC

decision becoming final. 915 S.W.2d at 508. However, the plaintiffs failed to

comply with the other section 212.201 jurisdictional requirements because they did

not name their previous employers as defendants. Id. While the Wren plaintiffs

amended their petition to correct their error, they did so after the 14-day statutory

deadline had passed. Id. at 509. Accordingly, the trial court properly granted the

plea to the jurisdiction dismissing the plaintiffs’ claims.

      Similarly, Richardson filed her initial petition for review February, 1,

2011—14 days after the TWC’s decision became final. Accordingly, Richardson’s

petition for review appears to have met the 14-day requirement for obtaining

judicial review. However, Richardson named only TAC and TWC as defendants in

her initial petition. Upon learning that TAC was not the proper defendant,

Richardson amended her pleadings, adding Fort Bend as a defendant. But, like

Wren, Richardson did not name her former employer, Fort Bend, as a defendant

until April 12, 2011—over two months after the statutory filing deadline had

passed. See TEX. LAB. CODE ANN. § 212.201. Because Richardson did not amend



                                           9
her petition until almost two months after the statutory deadline for filing a petition

for judicial review had passed, her amended petition failed to meet the section

212.201 jurisdictional requirements.

      Having determined that Richardson did not satisfy the jurisdictional

requirements of section 212.201, we conclude that the trial court did not err in

granting TWC’s and Fort Bend’s pleas to the jurisdiction.

                                     Conclusion

      We affirm.




                                               Harvey Brown
                                               Justice

Panel consists of Justices Keyes, Bland, and Brown.




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