                                        In The

                                 Court of Appeals
                     Ninth District of Texas at Beaumont
                               ____________________

                                NO. 09-17-00195-CV
                               ____________________

                       JACQUELINE MARTIN, Appellant

                                           V.

         JASPER INDEPENDENT SCHOOL DISTRICT, Appellee
__________________________________________________________________

                 On Appeal from the 1st District Court
                        Jasper County, Texas
                        Trial Cause No. 35883
__________________________________________________________________

                           MEMORANDUM OPINION

      Jacqueline Martin raises two appellate issues challenging the trial court’s

order granting Jasper Independent School District’s plea to the jurisdiction. In issue

one, Martin argues that the trial court erred by finding that her petition was not timely

filed, and in issue two, Martin contends the trial court erred by treating the timeliness

of her petition as a jurisdictional fact. For the reasons explained herein, we reverse




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the trial court’s order granting the plea to the jurisdiction and remand the cause for

further proceedings consistent with this opinion.

                                 BACKGROUND

      Martin filed suit against Jasper Independent School District (“JISD”) for

alleged employment discrimination. Martin, an African American professional

educator, pleaded that she is certified to serve as a school counselor in Texas, but

was demoted and replaced by a “less qualified white female[.]” In addition, Martin

alleged that when a position became available at an elementary school, she applied

and was denied an interview, and a less qualified white female was hired. According

to Martin’s petition, when she spoke with the superintendent, he was “sarcastic[] and

dismissive.” Martin asserted that she had been subjected to racial discrimination in

violation of the Texas Labor Code, denied protected interests without due process,

and subjected to retaliation for exercising her right to protected expression and

opposing allegedly discriminatory employment practices.

      In response, JISD filed a plea to the jurisdiction and original answer. JISD

asserted that Martin’s petition was not timely filed because the “limitations period”

expired on Thursday, September 29, 2016. JISD asserted that because Martin’s

petition was not timely filed, no live controversy between the parties exists. JISD

pleaded that (1) Martin therefore lacked standing; (2) JISD had not waived its

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governmental immunity; and (3) the Court lacks subject matter jurisdiction over

Martin’s claims. JISD asked that the trial court “dismiss Martin’s claims against it

for lack of subject matter jurisdiction.”

        According to JISD’s plea to the jurisdiction, on July 28, 2016, the Texas

Workforce Commission (“TWC”) sent a letter to Martin’s attorney, advising of

Martin’s right to sue JISD under state law within sixty days. The letter, which was

addressed and mailed to Martin in care of her attorney, stated as follows, in pertinent

part:

        The above-referenced case was processed by the United States Equal
        Employment Opportunity Commission, or a local agency. Pursuant to
        Sections 21.252 and 21.254 of the Texas Labor Code, this notice is to
        advise you of your right to bring a private civil action in state court in
        the above-referenced case. YOU HAVE SIXTY (60) DAYS FROM
        THE RECEIPT OF THIS NOTICE TO FILE THIS CIVIL ACTION.

JISD attached the July 28 letter as an exhibit to its plea to the jurisdiction. In her

petition, Martin pleaded that she received the letter from TWC on August 2, 2016.

Martin filed her petition on October 3, 2016. JISD pleaded that its attorney

physically received a copy of the notice letter from TWC on August 1, 2016.

        In her response to JISD’s plea to the jurisdiction, Martin contended that she

timely filed suit and JISD had therefore waived its governmental immunity.

Specifically, in contrast to the earlier asserted date of August 2, Martin argued in her

response that “[d]espite [JISD]’s contentions to the contrary, Martin did not receive
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TWC’s right-to-sue [letter] until October 3, 2016.” According to Martin’s response,

neither Martin nor her attorney received the right-to-sue letter until October 3, 2016,

when it was faxed to counsel. Attached to Martin’s response were, among other

things, a July 11, 2016, letter her counsel wrote to TWC requesting a right-to-sue

letter; a copy of TWC’s letter of July 28, 2016; and a fax cover sheet bearing the

letterhead of TWC’s Civil Rights Division, which indicates that TWC faxed a copy

of its July 28 right-to-sue letter to Martin’s counsel on October 3. Defense counsel

provided as an exhibit to his reply to Martin’s response to JISD’s plea to the

jurisdiction an October 3rd email from an administrative assistant at TWC to

Martin’s counsel, in which the assistant states that TWC “received a request for a

right to sue and one was issued by our office on 7/28/16[]” and indicates that she

faxed a copy to Martin’s counsel on that date.

      In a supplemental response to JISD’s plea to the jurisdiction, Martin pleaded

as follows:

              Upon another review of this matter, Plaintiff’s counsel recently
      learned that two files had been created for the client Jacqueline Martin,
      labeled 2015 Martin, Jacqueline and Martin, Jacqueline, respectively.
      After assessing the files, Plaintiff’s counsel learned that a right-to-sue
      [letter] had been received from TWC and scanned into the filing
      system.
              ....
              Plaintiff’s counsel then conducted a review of the paper files and
      found the paper version which matched the scanned version of the right

                                          4
      to sue, mis[]filed, but which matched the original date Plaintiff’s
      counsel stated the right-to-sue was received, August 2, 2016.
            ....
            Plaintiff’s counsel’s office procedure has always been to stamp
      or write the date of receipt of any mailings related to client matters on
      the envelope and correspondence before scanning and filing into the
      system. This was done on both notices received from TWC.

Attached to Martin’s supplemental response as exhibits were screenshots of the

directory from Martin’s counsel’s computer, showing that two files on Martin’s case

existed; a copy of the TWC right-to-sue letter, which had been stamped “August 2,

2016[;]” and a copy of the TWC envelope, which was likewise stamped “August 2,

2016[.]”

      At the hearing on JISD’s plea to the jurisdiction, Martin’s counsel explained

on the record in open court1 that during the summer of 2016, he had a legal assistant

who had cognitive issues. According to counsel, said legal assistant created a second

cyber file on Martin’s case, and the notice from TWC, which was received on August

2, “was calendared by her into the file that she knew about but not . . . the cyber file

. . . that I worked out of.” Counsel stated that due to his own health issues, he began

to audit his office’s files, and he did not see the TWC notice in the version of




      1
       JISD’s counsel did not object to the unsworn factual assertions made by
Martin’s counsel on the record in open court.
                                           5
Martin’s file that he worked from, so he requested and received another copy of the

letter from TWC. Counsel further explained:

      [I]n the interim we have serendipitously located the file that had been
      kept by my former legal assistant, who hasn’t been with me since
      October 15th; and in that file we located the TWC right to sue letter and
      the calendaring of it for October 3rd, which was timely and the suit was
      filed on October 3rd.

Martin’s counsel argued that he had provided “clear evidence” regarding when he

received notice, so “there is no need to analyze the mailbox rule.” JISD’s counsel

contended that the Texas Rules of Civil Procedure apply to provide certainty and

clarity regarding when the sixty-day period begins. JISD’s counsel also asserted that

the mailbox rule, which provides an additional three days after a notice has been

deposited in the mail, governs, making the date of receipt July 31 (and therefore,

Martin’s deadline for filing suit was September 29). See Tex. R. Civ. P. 21a(c); see

also Tex. R. Civ. P. 4. The trial court signed an order granting JISD’s plea to the

jurisdiction, and Martin appealed.

                                     ISSUE ONE

      In her first issue, Martin argues that the trial court erred by finding that she

did not timely file her lawsuit because the sixty-day period is triggered by actual

receipt of the right-to-sue letter, not constructive receipt. “A plea to the jurisdiction

is a dilatory plea, the purpose of which is ‘to defeat a cause of action without regard

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to whether the claims asserted have merit.’” Bland Indep. Sch. Dist. v. Blue, 34

S.W.3d 547, 554 (Tex. 2000). We review the trial court’s order granting a plea to

the jurisdiction de novo. Presidio Indep. Sch. Dist. v. Scott, 309 S.W.3d 927, 929

(Tex. 2010); Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex.

2004). In reviewing a plea to the jurisdiction, we look to the allegations in the

pleadings, construe them in favor of the plaintiff, and look to the pleader’s intent.

See County of Cameron v. Brown, 80 S.W.3d 549, 555 (Tex. 2002). The plaintiff

bears the burden of alleging facts that affirmatively demonstrate the trial court’s

jurisdiction to hear a case. Tex. Dep’t of Transp. v. Ramirez, 74 S.W.3d 864, 867

(Tex. 2002). If jurisdictional facts are relevant, we consider any evidence submitted

by the parties to the trial court. Blue, 34 S.W.3d at 555. When, as here, the trial court

did not make findings of fact, we presume that the trial court resolved all factual

disputes in favor of its determination, and we then determine whether the trial court’s

implied findings are supported by legally sufficient evidence. McAllen Indep. Sch.

Dist. v. Espinosa, No. 13-11-00563-CV, 2012 WL 3012657, at *3 (Tex. App.—

Corpus Christi June 15, 2012, no pet.).

      Section 21.254 of the Texas Labor Code provides as follows: “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. Labor Code Ann. § 21.254

                                           7
(West 2015). Appellate courts construing the sixty-day period set forth in section

21.254 have held that the period begins to run on the date the plaintiff actually

receives the notice. See Tex. Health and Human Servs. Comm’n v. Olguin, 521

S.W.3d 403, 405 (Tex. App—Austin 2017, no pet.); Zamora v. Tarrant Cnty. Hosp.

Dist., 510 S.W.3d 584, 587 (Tex. App.—El Paso 2016, pet. denied); Windle v. Mary

Kay, Inc., No. 05-02-00252-CV, 2003 WL 21508782, at *1 (Tex. App.—Dallas July

1, 2003, pet. denied). JISD would have us follow Hansen v. AON Risk Servs. of Tex.,

Inc., 473 F.Supp.2d 743 (S.D. Tex. 2007), in which the trial court referenced the

mailbox rule in analyzing the application of section 21.254 to the facts presented. Id.

at 747. However, Hansen is distinguishable because in that case, the plaintiff filed

suit 143 days after TWC sent the right-to-sue letter, and apparently there was no

evidence before the court regarding the precise date on which the plaintiff actually

received notice. Id. at 747-48.

      In his supplemental response to JISD’s plea to the jurisdiction, counsel

explained the discrepancies between the dates he claimed to have received the TWC

letter as having occurred due to a legal assistant having erroneously created two

cyber files for Martin’s case, and he recited those factual assertions in open court,

on the record, at the hearing on JISD’s plea to the jurisdiction. Martin’s counsel also

attached as exhibits to the supplemental response documents showing the two extant

                                          8
files regarding Martin’s case, a copy of the TWC letter stamped “August 2, 2016[,]”

and a copy of the envelope in which the letter arrived, which was also stamped

“August 2, 2016[.]”2 Unsworn factual statements and representations by an attorney

in open court can constitute evidence when the opponent to the testimony waives the

oath requirement by failing to object in circumstances that clearly indicated that the

attorney was tendering evidence on the record based on the attorney’s personal

knowledge regarding the contested issues. Mathis v. Lockwood, 166 S.W.3d 743,

745 (Tex. 2005); In re Estate of Arndt, 187 S.W.3d 84, 87 (Tex. App.—Beaumont

2005, no pet.).

      Section 21.254 is triggered by actual receipt, not constructive receipt. There

was no direct evidence before the trial court that counsel actually received the

document on a date other than August 2, 2016, nor was there sufficient evidence to

refute the evidence offered by Martin’s counsel. See generally Espinosa, 2012 WL

3012657, at *3 (holding that the trial court’s implied findings must be supported by

sufficient evidence). Under Rule 4 of the Texas Rules of Civil Procedure, Martin

was required to file her petition by October 3, 2016; therefore, the petition was

timely filed. We conclude that the trial court erred by impliedly applying the mailbox



      2
       Neither Martin’s counsel nor JISD’s counsel included affidavits
authenticating the documents attached as exhibits to their various pleadings.
                                          9
rule, impliedly finding that Martin’s lawsuit was not timely filed, and granting the

plea to the jurisdiction. See Tex. Labor Code § 21.254; see also generally Espinosa,

2012 WL 3012657, at *3. We therefore sustain issue one, and we reverse the trial

court’s order granting JISD’s plea to the jurisdiction and remand the cause to the

trial court for further proceedings consistent with this opinion. Because it would not

result in greater relief, we need not address issue two. See Tex. R. App. P. 47.1.

      REVERSED AND REMANDED.



                                              ______________________________
                                                     STEVE McKEITHEN
                                                         Chief Justice


Submitted on March 15, 2018
Opinion Delivered June 14, 2018

Before McKeithen, C.J., Horton and Johnson, JJ.




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