                            NUMBER 13-11-00091-CV

                            COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI - EDINBURG

TEXAS YOUTH COMMISSION,
AN AGENCY OF THE STATE OF TEXAS,                                            Appellant,

                                           v.

EDUARDO GARZA AND
JUAN HERNANDEZ,                                                            Appellees.


               On appeal from the County Court at Law No. 6
                        of Hidalgo County, Texas.


                         MEMORANDUM OPINION
    Before Chief Justice Valdez and Justices Rodriguez and Garza
            Memorandum Opinion by Justice Rodriguez
      Appellant Texas Youth Commission (TYC), an Agency of the State of Texas,

challenges the trial court's denial of its plea to the jurisdiction in favor of appellees

Eduardo Garza and Juan Hernandez. By two issues, TYC argues that the trial court
erred in denying its plea to the jurisdiction because: (1) sovereign immunity, per the

Texas Tort Claims Act (TTCA), bars appellees' intentional torts claims, see TEX. CIV.

PRAC. & REM. CODE ANN. § 101.057(2) (West 2011); and (2) appellees failed to exhaust

their administrative remedies, as required by the Texas Commission on Human Rights

Act (CHRA), before filing their employment discrimination claim. See TEX. LAB. CODE

ANN. § 21.202 (West 2006). We reverse and render.

                                     I. BACKGROUND

       According to their petition, appellees are employees of TYC and serve as

correctional officers at the Evins Regional Juvenile Center in Edinburg, Texas.

Appellees allege that on November 25, 2008, they were ordered to submit to a strip

search by their supervisors. In the presence of each other and the supervisors, each

appellee was ordered to remove the contents of his pockets, his shirt, his pants, and his

underwear and then ordered to "squat and cough." The strip searches were recorded by

a video camera "installed in the storage room" where the searches were conducted.

Garza heard one of the supervisors inform the other that "if a TYC staff member such as

[Garza] refused to be strip searched, then said staff member would be walked off

campus." Appellees "feared that if they did not comply with the [strip search] . . . , [they]

would be terminated." Appellees claimed in their petition that TYC's sovereign immunity

"has been waived pursuant to the Texas Torts Claims Act" and section 21.051 of the

Texas Labor Code.

       On July 6, 2009, appellees sued TYC, alleging claims for "intentional infliction of

mental distress" and unlawful employment practices and hostile work environment. It is


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undisputed that appellees filed no administrative discrimination complaint with either the

Equal Employment Opportunity Commission (EEOC) or the Texas Commission on

Human Rights (TCHR) prior to filing their lawsuit. TYC filed a plea to the jurisdiction,

arguing that appellees' intentional infliction of emotional distress claims were barred by

sovereign immunity and that the trial court lacked subject matter jurisdiction over

appellees' employment discrimination claims because appellees failed to exhaust their

administrative remedies before filing suit. After a hearing, the trial court denied TYC's

plea to the jurisdiction. This accelerated, interlocutory appeal followed. See TEX. CIV.

PRAC. & REM. CODE ANN. § 51.014(a)(8) (West 2008) (permitting the accelerated appeal

of an interlocutory order "grant[ing] or den[ying] a plea to the jurisdiction by a

governmental unit").

                                  II. STANDARD OF REVIEW

       A plea to the jurisdiction is a dilatory plea; its purpose is "to defeat a cause of action

without regard to whether the claims asserted have merit." Bland Indep. Sch. Dist. v.

Blue, 34 S.W.3d 547, 554 (Tex. 2000). The plea challenges the trial court's jurisdiction

over the subject matter of a pleaded cause of action. Tex. Dep't of Parks & Wildlife v.

Miranda, 133 S.W.3d 217, 226 (Tex. 2004); Tex. Parks & Wildlife Dep't v. Morris, 129

S.W.3d 804, 807 (Tex. App.—Corpus Christi 2004, no pet.). Subject matter jurisdiction

is a question of law; therefore, an appellate court reviews de novo a trial court's ruling on

a plea to the jurisdiction. Miranda, 133 S.W.3d at 226; Morris, 129 S.W.3d at 807.

       When a trial court's decision concerning a plea to the jurisdiction is based on the

plaintiff's pleadings, we accept as true all factual allegations in the pleadings to determine


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if the plaintiff has met its burden to plead facts sufficient to confer jurisdiction on the court.

Dallas Area Rapid Transit v. Whitley, 104 S.W.3d 540, 542 (Tex. 2003); Morris, 129

S.W.3d at 807. We examine the pleader's intent and construe the pleadings in the

plaintiff's favor. County of Cameron v. Brown, 80 S.W.3d 549, 555 (Tex. 2002); Tex.

Dep't of Transp. v. Ramirez, 74 S.W.3d 864, 867 (Tex. 2002) (per curiam). A plea to the

jurisdiction may be granted without allowing the plaintiff to amend if the pleadings

affirmatively negate the existence of jurisdiction. Brown, 80 S.W.3d at 555; Ramirez, 74

S.W.3d at 867.

                  III. INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS:
              INTENTIONAL TORTS AND SOVEREIGN IMMUNITY UNDER THE TTCA

       By its first issue, TYC argues that it is immune from appellees' intentional infliction

of emotional distress claims because the TTCA does not waive sovereign immunity for

intentional torts. As such, TYC argues that the trial court erred in denying its plea to the

jurisdiction on this claim. We agree.

       Because immunity from suit defeats a trial court's subject-matter jurisdiction, it may

be properly asserted in a jurisdictional plea. Miranda, 133 S.W.3d at 225-26. In a suit

against the government, the plaintiff must affirmatively demonstrate the court's

jurisdiction by alleging facts demonstrating a valid waiver of immunity. Whitley, 104

S.W.3d at 542. "State agencies are immune from liability in Texas unless the Legislature

has waived that immunity." Kerrville State Hosp. v. Fernandez, 28 S.W.3d 1, 3 (Tex.

2000). Specifically, the TTCA waives the State's immunity for negligence arising "from

the operation or use of a motor-driven vehicle" and personal injury "caused by a condition

or use of tangible person or real property."          TEX. CIV. PRAC. & REM. CODE ANN. §

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101.021(1)-(2) (West 2011).         The TTCA expressly retains the State's sovereign

immunity for claims "arising out of assault, battery, false imprisonment, or any other

intentional tort," including claims for intentional infliction of emotional distress. Id. §

101.057(2); see Nueces County v. Ferguson, 97 S.W.3d 205, 223 (Tex. App.—Corpus

Christi 2002, no pet.) ("[T]he Texas Tort Claims Act specifically preserves sovereign

immunity as to intentional torts . . . . Thus sovereign immunity is not waived for a claim of

intentional infliction of emotional distress.").

       Here, the only tort alleged by appellees was "intentional infliction of mental

distress" caused by the "intentional[] or knowing[] . . . psychological abuse" by TYC's

"agents" who performed the strip search. Because TYC's sovereign immunity is not

waived for intentional torts, appellees failed to allege facts demonstrating the trial court's

jurisdiction over their intentional infliction of emotional distress claims. See Whitley, 104

S.W.3d at 542; see also Ferguson, 97 S.W.3d at 223.               And because appellees'

allegations include no facts involving the use of a motor vehicle or tangible property or

negligence related to the condition of real property, their petition affirmatively negates a

waiver of TYC's immunity under the TTCA and thus affirmatively negates the trial court's

jurisdiction over any claim governed thereby. See TEX. CIV. PRAC. & REM. CODE ANN. §

101.021(1)-(2); see also Brown, 80 S.W.3d at 555; Ramirez, 74 S.W.3d at 867. We

conclude that the trial court erred in denying TYC's plea to the jurisdiction with regard to

appellees' intentional infliction of emotional distress claim. See Fernandez, 28 S.W.3d

at 3 (holding that the State is immune from liability unless immunity is waived by statute).

TYC's first issue is sustained.


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            IV. HOSTILE WORK ENVIRONMENT: ADMINISTRATIVE EXHAUSTION AND
                    SUBJECT-MATTER JURISDICTION UNDER THE CHRA

        By its second issue, TYC argues that because appellees failed to file a charge of

discrimination with the EEOC or TCHR within 180 days of the alleged discriminatory

employment practice, the trial court lacked subject matter jurisdiction over their hostile

work environment claim. For this reason, TYC argues that the trial court erred in denying

TYC's plea to the jurisdiction on this claim. Again, we agree.

        Courts are only to consider CHRA claims after the plaintiff has exhausted its

administrative remedies. Specialty Retailers, Inc. v. DeMoranville, 933 S.W.2d 490, 492

(Tex. 1996) (per curiam); Schroeder v. Tex. Iron Works, Inc., 813 S.W.2d 483, 485 (Tex.

1991). 1     To meet the exhaustion requirement, a plaintiff must file a charge of

discrimination with either the EEOC or the TCHR within 180 days of the alleged

discriminatory employment action.                See TEX. LAB. CODE ANN. § 21.202; see also

Czerwinski v. Univ. of Tex. Health Science Ctr., 116 S.W.3d 119, 121 (Tex.

        1
            We note that in In re United Services Automobile Association, the Texas Supreme Court
concluded that a different CHRA provision—prescribing a two-year period for a complainant to file suit after
initially making the complaint, see TEX. LAB. CODE ANN. § 22.256 (West 2006)—is "mandatory but not
jurisdictional." In re United Servs. Auto. Ass'n, 307 S.W.3d 299, 310 (Tex. 2010) (overruling Schroeder v.
Tex. Iron Works, Inc., 813 S.W.2d 483 (Tex. 1991), to the extent it involved section 22.256). Thus, a plea
to the jurisdiction based on section 22.256 would be improper. See id.; see also Mission Consol. Indep.
Sch. Dist. v. Garcia, 314 S.W.3d 548, 559 (Tex. App.—Corpus Christi 2010, pet. filed) (applying In re United
Services to labor code section 21.254's requirement that a plaintiff file suit within sixty days of receiving its
right-to-sue letter and concluding that the plaintiff's failure to comply with the sixty-day deadline did not
deprive the trial court of jurisdiction). However, this reasoning has not been applied to section 22.201's
administrative exhaustion requirement, and numerous courts of appeals since In re United Services have
continued to hold that the failure to file a timely complaint with the EEOC or TCHR deprives the trial court of
subject matter jurisdiction. See City of El Paso v. Granados, 334 S.W.3d 407, 411 (Tex. App.—El Paso
2011, no pet.); see also Tex. S. Univ. v. Rodriguez, No. 14-10-01079-CV, 2011 WL 2150238, at *2 (Tex.
App.—Houston [14th Dist.] June 2, 2011, no pet. h.) (mem. op.); Lamar Univ. v. Jordan, No.
09-10-00292-CV, 2011 WL 550089, at *2 (Tex. App.—Beaumont Feb. 17, 2011, no pet.) (mem. op.). We
agree with our sister courts that jurisdiction is still implicated by the plaintiff's compliance or non-compliance
with section 21.201.
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App.—Houston [14th Dist.] 2002, pet. denied) (citations omitted). If the plaintiff fails to

file with the EEOC or TCHR in that time period, the trial court lacks subject matter

jurisdiction over its subsequent CHRA claim. See Czerwinski, 116 S.W.3d at 121-22

(citing Schroeder, 813 S.W.2d at 485-89).

       It is undisputed in this case that appellees failed to file a charge of discrimination

with the EEOC or TCHR within 180 days of the alleged discrimination. As such, the

pleadings affirmatively negate the trial court's jurisdiction to hear appellees' CHRA claims,

and the court erred in denying TYC's plea to the jurisdiction on that basis. We sustain

appellant's second issue.

                                     V. CONCLUSION

       We reverse the order of the trial court denying TYC's plea to the jurisdiction and

render judgment granting the plea and dismissing appellees' claims with prejudice.



                                                  NELDA V. RODRIGUEZ
                                                  Justice

Delivered and filed the
21st day of July, 2011.




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