                        NUMBER 13-17-00659-CV

                          COURT OF APPEALS

                 THIRTEENTH DISTRICT OF TEXAS

                    CORPUS CHRISTI - EDINBURG


TEXAS DEPARTMENT OF
PUBLIC SAFETY,                                                        Appellant,

                                        v.

LEROY TORRES,                                                         Appellee.


              On appeal from the County Court at Law No. 1
                       of Nueces County, Texas.


                                 OPINION

          Before Justices Contreras, Benavides, and Longoria
                     Opinion by Justice Contreras

      In this case of first impression, we are asked whether sovereign immunity bars

claims by private individuals against units of state government under the federal

Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA). See
38 U.S.C.A. §§ 4301–4335 (West, Westlaw through P.L. 115-223). The trial court denied

a plea to the jurisdiction on those grounds filed by appellant, the Texas Department of

Public Safety (DPS), in a suit brought by appellee Leroy Torres.

       By one issue on appeal, DPS contends that the trial court erred in denying its plea

because sovereign immunity applies and has not been validly abrogated by Congress or

waived by the legislature. A review of the relevant case law compels us to agree.

Therefore, we will reverse and render judgment granting DPS’s plea.

                                     I. BACKGROUND

       Torres enlisted in the United States Army Reserve in 1989 and was deployed to

Iraq in 2007. Prior to deployment, Torres had been employed as a DPS trooper since

1998. In 2008, Torres was honorably discharged and sought to be reemployed by DPS.

However, because of a lung condition he acquired while serving in Iraq, Torres requested

reemployment with DPS in a different position than the one he held earlier. DPS declined

to offer him a different job but did provide a “temporary duty offer” of continued

employment in his prior position. Instead of returning to his original position, Torres

resigned.

       Torres sued DPS in 2017, alleging that DPS’s failure to offer him a job that would

accommodate his disability violated USERRA, a federal statute that prohibits adverse

employment actions against an employee based on the employee’s military service. See

id. § 4311. Torres alleged that DPS officials “forced” him to resign because of the injuries

he suffered incident to his military service. His petition sought: (1) a declaration that

DPS’s actions violated USERRA; (2) an order “[r]equir[ing] that [DPS] fully compl[y] with

the provisions of USERRA by providing [Torres] with . . . compensatory and/or liquidated



                                             2
damages in an amount equal to the amount of lost compensation and other benefits

suffered by reason of [DPS]’s willful violations of USERRA”; and (3) attorney’s fees and

costs. DPS filed a plea to the jurisdiction contending that sovereign immunity applies and

deprives the trial court of subject-matter jurisdiction. After a hearing, the trial court denied

the plea, and DPS perfected this appeal.           See TEX. CIV. PRAC. & REM. CODE ANN.

§ 51.014(a)(8) (West, Westlaw through 2017 1st C.S.).

                                        II. DISCUSSION

A.     Standard of Review

       A plea to the jurisdiction is a dilatory plea used 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 subject matter

jurisdiction. Id. Whether a trial court has subject matter jurisdiction and whether the

pleader has alleged facts that affirmatively demonstrate the trial court’s subject matter

jurisdiction are questions of law that we review de novo. Tex. Dep’t of Parks & Wildlife v.

Miranda, 133 S.W.3d 217, 226 (Tex. 2004).

       The plaintiff has the initial burden to plead facts affirmatively showing that the trial

court has jurisdiction. Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 446

(Tex. 1993). We construe the pleadings liberally in favor of the pleader, look to the

pleader’s intent, and accept as true the factual allegations in the pleadings. See Miranda,

133 S.W.3d at 226, 228.

       Here, the issue of immunity turns on the trial court’s construction of constitutional

and statutory provisions, which are decisions that we review de novo. See Harris Cty.

Hosp. Dist. v. Tomball Reg’l Hosp., 283 S.W.3d 838, 842 (Tex. 2009).



                                               3
B.    Applicable Law

      The doctrine of sovereign immunity holds that “no state can be sued in her own

courts without her consent, and then only in the manner indicated by that consent.” Tooke

v. City of Mexia, 197 S.W.3d 325, 331 (Tex. 2006) (citing Hosner v. DeYoung, 1 Tex. 764,

769 (1847)); see Nevada v. Hall, 440 U.S. 410, 414 (1979) (“The immunity of a truly

independent sovereign from suit in its own courts has been enjoyed as a matter of

absolute right for centuries. Only the sovereign’s own consent could qualify the absolute

character of that immunity.”). Thus, unless waived by the Texas Legislature or abrogated

by the United States Congress, sovereign immunity deprives a Texas trial court of

subject-matter jurisdiction over any lawsuit against a Texas governmental agency such

as DPS. Tex. Parks & Wildlife Dep’t v. Sawyer Tr., 354 S.W.3d 384, 388 (Tex. 2011).

      USERRA provides that “[a] person who is a member of . . . a uniformed service

shall not be denied . . . reemployment . . . or any benefit of employment by an employer

on the basis of that membership . . . .” 38 U.S.C.A. § 4311(a). Subchapter III of USERRA

sets forth a procedure under which employees may seek assistance in investigating and

enforcing their claims of USERRA violations.       See id. § 4321–4327.      Under that

subchapter, a person who claims entitlement to employment or reemployment rights

under USERRA may file a complaint with the Secretary of Labor, who must then

investigate the claim. Id. § 4322(a), (d). If the Secretary of Labor cannot resolve the

complaint, the claimant may request that the Secretary refer the claim to the Attorney

General, who must then decide whether to appear on behalf of, or act as attorney for, the

claimant. Id. §§ 4323(a)(1), (2). The statute then provides:

      A person may commence an action for relief with respect to a complaint
      against a State (as an employer) or a private employer if the person

                                            4
              (A)    has chosen not to apply to the Secretary for assistance under
                     section 4322(a) of this title;

              (B)    has chosen not to request that the Secretary refer the
                     complaint to the Attorney General under paragraph (1); or

              (C)    has been refused representation by the Attorney General with
                     respect to the complaint under such paragraph.

Id. § 4323(a)(3). The following subsection, entitled “Jurisdiction,” states:

       (1)    In the case of an action against a State (as an employer) or a private
              employer commenced by the United States, the district courts of the
              United States shall have jurisdiction over the action.

       (2)    In the case of an action against a State (as an employer) by a person,
              the action may be brought in a State court of competent jurisdiction
              in accordance with the laws of the State.

       (3)    In the case of an action against a private employer by a person, the
              district courts of the United States shall have jurisdiction of the action.

Id. § 4323(b) (emphasis added).

C.     Analysis

       Torres alleged in his suit that the trial court had jurisdiction pursuant to USERRA

section 4323(b)(2). See id. § 4323(b)(2). In its plea to the jurisdiction, DPS argued that

its immunity to a private suit in state court for damages under USERRA has neither been

validly abrogated by Congress nor validly waived by the legislature. See Sawyer Tr., 354

S.W.3d at 388.

       1.     Abrogation of Immunity by Congress

       We first address whether Congress has validly abrogated immunity with its

enactment of USERRA. For Congress to validly abrogate a State’s sovereign immunity,

it must (1) unequivocally express its intent to do so, and (2) act “pursuant to a




                                               5
constitutional provision granting Congress the power to abrogate.” Univ. of Tex. at El

Paso v. Herrera, 322 S.W.3d 192, 195 (Tex. 2010).1

        DPS argues that Congress has the constitutional power to abrogate a State’s

sovereign immunity to suits in its own courts only when exercising its powers under

section 5 of the Fourteenth Amendment, and never when exercising the powers granted

to it by Article I of the Constitution. It relies on Alden v. Maine, in which the United States

Supreme Court broadly held that “[t]he powers delegated to Congress under Article I of

the United States Constitution do not include the power to subject nonconsenting States

to private suits for damages in state courts.” 527 U.S. 706, 712 (1999). USERRA was

arguably enacted pursuant to Congress’s Article I War Powers, see U.S. CONST. art. I,

§ 8, cl. 11–16; therefore, according to DPS, USERRA cannot constitutionally abrogate its

sovereign immunity to private suits for damages in Texas courts.

        The United States Supreme Court held in Seminole Tribe of Florida v. Florida that

Congress lacks power under Article I to abrogate States’ sovereign immunity to suits

commenced or prosecuted in federal courts. 517 U.S. 44, 66, 76 (1996) (overruling

Pennsylvania v. Union Gas Co., 491 U.S. 1, 23 (1989)); see also U.S. CONST. amend XI

(“The Judicial power of the United States shall not be construed to extend to any suit in

law or equity, commenced or prosecuted against one of the United States by Citizens of

another State, or by Citizens or Subjects of any Foreign State.”). In Alden, the Court was



        1  The dissent acknowledges that both of these prongs must be satisfied in order for Congress to
effectively abrogate State immunity, but it addresses only the first prong. It suggests, based on a cursory
examination of legislative history, that Congress intended to abrogate State immunity by enacting USERRA.
The dissent does not dispute our conclusion, which we will explain herein, that Congress lacked the power
to abrogate pursuant to the Constitution. Such power is a necessary prerequisite to finding that Congress
abrogated State immunity. See Univ. of Tex. at El Paso v. Herrera, 322 S.W.3d 192, 195 (Tex. 2010).
Therefore, the dissent’s discussion regarding Congressional intent is irrelevant. See TEX. R. APP. P. 47.1.

                                                    6
asked whether the Seminole Tribe holding applies equally to suits brought in State courts;

specifically, it considered whether the federal Fair Labor Standards Act of 1938 (FLSA)

validly abrogated Maine’s sovereign immunity to private suits for damages in its own

courts. 527 U.S. at 711–12.

        Justice Kennedy, writing for a 5–4 majority, held that even though the Eleventh

Amendment does not address jurisdiction of State courts, see U.S. CONST. amend. XI,

immunity from suit “is a fundamental aspect of the sovereignty which the States enjoyed

before the ratification of the Constitution, and which they retain today . . . except as

altered by the plan of the Convention or certain constitutional Amendments.” Alden, 527

U.S at 713.2 Thus, the States retain “a residuary and inviolable sovereignty” which

includes immunity to non-consensual suits in its own courts “save where there has been

‘a surrender of this immunity in the plan of the convention.’” Id. at 715, 730 (quoting

Principality of Monaco v. Mississippi, 292 U.S. 313, 322–23 (1934)). The Court held: “In

exercising its Article I powers Congress may subject the States to private suits in their

own courts only if there is ‘compelling evidence’ that the States were required to surrender

this power to Congress pursuant to the constitutional design”; that is, there must be

“compelling evidence” that “this derogation of the States’ sovereignty is ‘inherent in the

constitutional compact.’” Id. at 731, 741 (quoting Blatchford v. Native Vill. of Noatak &

Circle Vill., 501 U.S. 775, 781 (1991)). After reviewing the “history, practice, precedent,

and structure of the Constitution,” the Court concluded that the States’ “immunity from

private suit in their own courts” is “beyond the congressional power to abrogate by Article


        2The Court noted that, though a State’s immunity from suit is sometimes referred to as “Eleventh
Amendment immunity,” that phrase is “something of a misnomer” because “the sovereign immunity of the
States neither derives from, nor is limited by, the terms of the Eleventh Amendment.” Alden v. Maine, 527
U.S. 706, 712–13 (1999); see Hoff v. Nueces Cty., 153 S.W.3d 45, 48 (Tex. 2004).

                                                   7
I legislation.” Id. at 754. Therefore, Maine’s sovereign immunity could not be validly

abrogated by the FLSA, which was enacted pursuant to Congress’s Article I power to

regulate interstate commerce. Id.; see 29 U.S.C.A. § 202(b) (West, Westlaw through P.L.

115-223).

       The Alden majority observed, however, that the States’ immunity to suit in their

own courts is not unlimited; for example, States may waive immunity by consenting to

suit, or their immunity may be “surrendered” by the adoption of a constitutional

amendment.      Alden, 527 U.S. at 712.       For example, in adopting the Fourteenth

Amendment, the States “surrender[ed] a portion of the sovereignty that had been

preserved to them by the original Constitution”; therefore, Congress may validly abrogate

a State’s immunity in its own courts under section 5 of that amendment, which grants

Congress the “power to enforce” the provisions of the amendment by “appropriate

legislation.” Id. at 756 (citing Fitzpatrick v. Bitzer, 427 U.S. 445 (1976)); see U.S. CONST.

amend. XIV, § 5.

       Here, there is no suggestion that USERRA was enacted pursuant to Congress’s

powers under section 5 of the Fourteenth Amendment; instead, the parties agree that it

was enacted pursuant to Congress’s Article I powers. Nevertheless, Torres argues that

Alden did not categorically preclude abrogation of sovereign immunity in all Article I laws.

Torres contends instead that Alden’s holding applies narrowly to the specific legislation

considered in that case (the FLSA) and the specific Article I enumerated power under

which that legislation was enacted (the interstate commerce clause). See U.S. CONST.

art. I, § 8, cl. 3. To the extent Alden purported to reject abrogation of sovereign immunity

in any other Article I legislation, Torres alleges that such holding is merely dicta. More



                                             8
specifically, Torres contends that USERRA was enacted pursuant to Congress’s War

Powers, see U.S. CONST. art. I, § 8, cl. 11–16, and that Congress could validly abrogate

state immunity in its exercise of those powers because there is “compelling evidence”

that the States “were required to surrender” War Powers to Congress “pursuant to the

constitutional design.” See Alden, 527 U.S. at 731, 741 (quoting Blatchford, 501 U.S. at

781).

        In support of this narrow reading of Alden, Torres cites Diaz-Gandia v. Dapena-

Thompson, 90 F.3d 609 (1st Cir. 1996) and Central Virginia Community College v. Katz,

546 U.S. 356 (2006). In Diaz-Gandia, the federal First Circuit Court of Appeals held that

claims brought by a private plaintiff against State entities under the Veterans’

Reemployment Rights Act (VRRA), the predecessor of USERRA, were not barred by

sovereign immunity. 90 F.3d at 616 (relying on Reopell v. Massachusetts, 936 F.2d 12,

16 (1st Cir. 1991) (“[P]assage of the VRRA—assuming Congress expressed its intention

to abrogate with adequate clarity—removed the Eleventh Amendment bar to damages

actions brought under the Act against a state.”)).       Diaz-Gandia was decided after

Seminole Tribe, but before Alden. Accordingly, it reflects the First Circuit’s determination

that, notwithstanding Seminole Tribe, States are amenable to private suits in federal court

if suit is authorized pursuant to Congress’s War Powers. See id.

        In Katz, the United States Supreme Court considered whether, despite Seminole

Tribe and Alden, a private plaintiff was authorized to sue State entities under federal

bankruptcy legislation. See 546 U.S. 356, 359. The statutes at issue in that case,

enacted under Congress’s Article I bankruptcy powers, purport to abrogate sovereign

immunity for, inter alia, suits by bankruptcy trustees to set aside “preferential transfers”



                                             9
by the debtor to state agencies. See 11 U.S.C.A. §§ 106, 547(b), 550(a) (West, Westlaw

through P.L. 115-223). In another 5–4 opinion, the Katz Court rejected the defendants’

sovereign immunity defense to a suit brought pursuant to those statutes, concluding that

that the States “agreed in the plan of the Convention not to assert any sovereign immunity

defense they might have had in proceedings brought pursuant to ‘Laws on the subject of

Bankruptcies.’” Katz, 546 U.S. at 377 (quoting U.S. CONST. art. I, § 8, cl. 4 (authorizing

Congress to establish “uniform Laws on the subject of Bankruptcies throughout the United

States”)).3 The Court noted, however, that “[b]ankruptcy jurisdiction, at its core, is in rem”

and therefore “does not implicate States’ sovereignty to nearly the same degree as other

kinds of jurisdiction.” Id. at 362 (citing Tenn. Student Assistance Corp. v. Hood, 541 U.S.

440, 450 (2004) (noting that a bankruptcy debtor “does not seek monetary damages or

any affirmative relief from a State by seeking to discharge a debt; nor does he subject an

unwilling State to a coercive judicial process. He seeks only a discharge of his debts”)).

       We decline to interpret Alden narrowly as suggested by Torres. Our decision is

based on the broad language used in the opinion itself and is in accord with the decisions

of the other State courts that have considered the issue.

       First, we observe that in analyzing whether Congress validly abrogated state

immunity, the Alden majority opinion did not mention the subject matter of the legislation

at issue, nor did it mention the specific Article I enumerated power pursuant to which that

legislation was enacted. See 527 U.S. at 731–55. This strongly implies that the Alden

holding was intended to apply to laws enacted pursuant to any of the powers of Congress



       3  The Katz Court acknowledged that both the majority and dissenting opinions in Seminole Tribe
“reflected an assumption that the holding in that case would apply to the Bankruptcy Clause.” Cent. Va.
Cmty. Coll. v. Katz, 546 U.S. 356, 363 (2006). The Court found that assumption to be “erroneous.” Id.

                                                  10
enumerated in Article I—not just laws, such as FLSA, enacted under the interstate

commerce clause.

        Second, the plain language of USERRA indicates that it was not, strictly speaking,

enacted pursuant to Congress’s War Powers as enumerated in Article I, section 8; rather,

it was enacted pursuant to the Necessary and Proper Clause of that section. See U.S.

CONST. art. I, § 8, cl. 11–16 (War Powers),4 cl. 18 (Necessary and Proper Clause). The

Alden Court specifically rejected the notion that the Necessary and Proper Clause of

Article I granted Congress “the incidental authority to subject the States to private suits

as a means of achieving objectives otherwise within the scope of the enumerated

powers.” 527 U.S. at 732. Therefore, regardless of whether the ruling in Alden is

applicable to War Powers legislation, it is indisputably applicable to USERRA as

legislation enacted under the Necessary and Proper Clause.

        Subsequent case law generally supports the broad principle that, under Seminole

Tribe and Alden, state agencies’ immunity to private suits in both federal and state courts




        4   The enumerated War Powers granted to Congress in Article I, section 8 are as follows:
        To declare War, grant Letters of Marque and Reprisal, and make Rules concerning
        Captures on Land and Water;
        To raise and support Armies, but no Appropriation of Money to that Use shall be for a
        longer Term than two Years;
        To provide and maintain a Navy;
        To make Rules for the Government and Regulation of the land and naval Forces; [and]
        To provide for calling forth the Militia to execute the Laws of the Union, suppress
        Insurrections and repel Invasions;
        To provide for organizing, arming, and disciplining, the Militia, and for governing such Part
        of them as may be employed in the Service of the United States, reserving to the States
        respectively, the Appointment of the Officers, and the Authority of training the Militia
        according to the discipline prescribed by Congress . . . .
U.S. CONST. art. I, § 8, cl. 11–16. As DPS notes, the regulation of non-military employment discrimination
against members of the armed forces is not among these enumerated powers.

                                                     11
cannot be abrogated by Article I legislation. Though Katz recognized a limited exception

to this rule for actions to enforce certain bankruptcy statutes, the Court made clear that

this exception is derived from the particular attributes of in rem bankruptcy jurisdiction

which are not present in this case. See 546 U.S. at 377; Clark v. Va. Dep’t of State Police,

793 S.E.2d 1, 7 (Va. 2016) (stating that the Katz “qualification” is “applicable only to claims

arising within a federal bankruptcy court’s in rem jurisdiction over a bankruptcy estate”

and “does not apply to [appellant]’s state-court claim for in personam damages” under

USERRA); see also Agostini v. Felton, 521 U.S. 203, 237 (1997) (stating that “[i]f a

precedent of this Court has direct application in a case, yet appears to rest on reasons

rejected in some other line of decisions, the Court of Appeals should follow the case which

directly controls, leaving to this Court the prerogative of overruling its own decisions”).

       Diaz-Gandia is more difficult to distinguish. The federal appeals court in that case

specifically held that the holding of Seminole Tribe does not extend to laws enacted

pursuant to Congress’s War Powers. See 90 F.3d at 616 n.9. But, as at least two federal

district courts have recognized, the decision in Diaz-Gandia appears to have been based

on an incorrect observation that “no subsequent development has undermined Reopell,”

the case upon which that decision relied. See Risner v. Ohio Dep’t of Rehab. & Corr.,

577 F. Supp. 2d 953, 964 (N.D. Ohio 2008) (noting that “the decision in Diaz–Gandia is

undermined by the fact that Reopell was based upon Pennsylvania v. Union Gas

Co., . . . which was overruled by Seminole Tribe”); Palmatier v. Mich. Dep’t of State

Police, 981 F. Supp. 529, 532 (W.D. Mich. 1997) (declining to follow Diaz-Gandia and

Reopell because they are based on Pennsylvania v. Union Gas Co. and therefore “their

continuing vitality is suspect” in light of Seminole Tribe).



                                              12
       In any event, the federal Fifth Circuit Court of Appeals has directly stated, contrary

to Diaz-Gandia, that Seminole Tribe applies to War Powers legislation. Ysleta Del Sur

Pueblo v. Laney, 199 F.3d 281, 288 (5th Cir. 2000) (citing Fla. Prepaid Postsecondary

Educ. Expense Bd. v. Coll. Sav. Bank, 527 U.S. 627, 636 (1999) (“Seminole Tribe makes

clear that Congress may not abrogate state sovereign immunity pursuant to its Article I

powers[.]”)). And several state appellate courts, applying both Seminole Tribe and Alden,

have specifically concluded that the sovereign immunity of state agencies is not

abrogated for suits in state courts brought under section 4323(b) of USERRA. See

Breaker v. Bemidji State Univ., 899 N.W.2d 515, 524 (Minn. Ct. App. 2017) (concluding

that “Congress lacked authority under the Article 1 War Powers Clause to abrogate state

sovereign immunity from USERRA claims in state court”); Clark, 793 S.E.2d at 7 (“Alden’s

holding was unqualified: Nonconsenting States cannot be forced to defend ‘private suits’

seeking in personam remedies ‘in their own courts’ based upon ‘the powers delegated to

Congress under Article I of the United States Constitution.’”); Anstadt v. Bd. of Regents

of Univ. Sys. of Ga., 487, 693 S.E.2d 868, 871 (Ga. Ct. App. 2010) (rejecting the argument

that “the enactment of USERRA abrogated the state’s sovereign immunity because it was

enacted pursuant to Congress’s war powers”); Janowski v. Div. of State Police, 981 A.2d

1166, 1170 (Del. 2009) (holding that “[USERRA] could not abrogate state sovereign

immunity, because Congress passed that law pursuant to its Article I, Section 8 war

powers”); Larkins v. Dep’t of Mental Health & Mental Retardation, 806 So.2d 358, 362–

63 (Ala. 2001) (“Alden forecloses, on constitutional grounds, resort to Article I as the basis

for subjecting the State of Alabama to suit in a state court on a remedy based upon




                                             13
Congress’s assertion of its powers with respect to military preparedness.”).5 These cases

either implicitly or explicitly reject the contention, made by Torres here, that Alden is non-

binding dicta to the extent it purports to pass judgment over legislation other than the

FLSA.

        Though these cases are not binding,6 they are directly on point and persuasive.

We therefore follow them and reject the flawed reasoning in Diaz-Gandia. Accordingly,

we conclude that, pursuant to the binding precedent of the United States Supreme Court

in Seminole Tribe and Alden, DPS’s sovereign immunity to private claims in state court

has not been validly abrogated by USERRA.7




        5 Though the Texas Supreme Court has not explicitly weighed in on the matter at issue here, it has
used language suggestive of a broad interpretation of Alden. See Hoff, 153 S.W.3d at 48 (stating that,
under Alden, sovereign immunity “protects nonconsenting states from being sued in their own courts for
federal law claims”). The Fifth Circuit has held that there is no private right of suit in federal court under
USERRA section 4323(b), but it declined to address whether that section effectively abrogates Texas’s
sovereign immunity. See McIntosh v. Partridge, 540 F.3d 315, 321 n.5 (5th Cir. 2008).
        6See Penrod Drilling Corp. v. Williams, 868 S.W.2d 294, 296 (Tex. 1993) (“While Texas courts
may certainly draw upon the precedents of the Fifth Circuit, or any other federal or state court, in determining
the appropriate federal rule of decision, they are obligated to follow only higher Texas courts and the United
States Supreme Court.”).
        7 DPS further argues that, even if Congress had the authority to abrogate sovereign immunity to
private suits in state court through USERRA, it has not unequivocally expressed its intent to do so in
USERRA section 4323(b)(2). See Herrera, 322 S.W.3d at 195. It notes that, according to the statute, such
suits are subject to “the laws of the State,” but the legislature has not waived DPS’s immunity under state
law. See 38 U.S.C.A. § 4323(b)(2) (West, Westlaw through P.L. 115-223); Smith v. Tenn. Nat’l Guard, 387
S.W.3d 570, 574 (Tenn. Ct. App. 2012) (interpreting section 4323(b)(2) to mean that “for an individual to
sustain an action against a state pursuant to USERRA, the action must be permitted by state law”). DPS
further notes that section 4323(b)(2) states that suit “may” be brought, whereas sections 4323(b)(1) and
(b)(3), which purport to authorize suit in federal court, state that suit “shall” be brought. See 38 U.S.C.A. §
4323(b)(1)–(3). In response, Torres notes that section 4323(b)(2) was enacted soon after Seminole Tribe
and the intent of Congress was to ensure that plaintiffs have a forum—state court—in which they can bring
USERRA claims against state agencies.
        We need not and do not address whether Congress has unequivocally expressed its intent to
abrogate state sovereign immunity in section 4323(b)(2), because we have already concluded that it lacked
the Constitutional authority to do so. See Alden, 527 U.S. at 712; Herrera, 322 S.W.3d at 195; see also
TEX. R. APP. P. 47.1.

                                                      14
      2.     Waiver of Immunity by the Legislature

      We next address whether DPS’s sovereign immunity has been validly waived by

the Texas Legislature. For the legislature to validly waive sovereign immunity, it must

consent to suit by “clear and unambiguous” statutory language. TEX. GOV’T CODE ANN.

§ 311.034 (West, Westlaw through 2017 1st C.S.) (“In order to preserve the legislature’s

interest in managing state fiscal matters through the appropriations process, a statute

shall not be construed as a waiver of sovereign immunity unless the waiver is effected by

clear and unambiguous language.”); Tooke, 197 S.W.3d at 332–33. Any ambiguity in a

statute must be resolved in favor of retaining immunity. Tooke, 197 S.W.3d at 330, 342

(holding that statutory provisions providing that state entities may “sue and be sued” or

“plead and be impleaded” are unclear and ambiguous and therefore do not, by

themselves, waive immunity); see Wichita Falls State Hosp. v. Taylor, 106 S.W.3d 692,

697 (Tex. 2003).

      At the trial court and on appeal, Torres argues that the legislature demonstrated

its intent to waive sovereign immunity in this case by enacting chapter 437 of the

government code. See TEX. GOV’T CODE ANN. § 437.001–.419 (West, Westlaw through

2017 1st C.S.) (entitled “Texas Military”). Under section 437.202 of that chapter, a state

employee who is a member of “a reserve component of the armed forces” and is ordered

to duty “is entitled, when relieved from duty, to be restored to the position that the

employee held when ordered to duty.”       Id. § 437.202(d).   Section 437.204, entitled

“Reemployment of Service Member Called to Training or Duty,” provides that “[a]n

employer may not terminate the employment of an employee who is a member of the

state military forces of this state or any other state because the employee is ordered to



                                           15
authorized training or duty by a proper authority” and that “[t]he employee is entitled to

return to the same employment held when ordered to training or duty . . . .”                           Id.

§ 437.204(a).8 Section 437.402 states that “[a] person claiming to be aggrieved by an

unlawful employment practice under Section 437.204 or the person’s agent may file a

complaint” with the Texas Workforce Commission (TWC). Id. § 437.402(a). If the TWC

dismisses the complaint or fails to resolve it, the complainant is entitled to request a notice

of the complainant’s right to file a civil action. Id. § 437.411(a). The complainant may

then bring a civil action against the employer within sixty days after receiving that notice.

Id. § 437.412.       On finding that an employer engaged in an “intentional unlawful

employment practice” under section 437.204, a court may award compensatory and

punitive damages, but it may not award back pay. Id. § 437.416(a), (c).

        Torres contends that government code chapter 437 is similar to statutes in New

Mexico and Wisconsin which have been held, by courts in those states, to evince a

legislative intent to waive sovereign immunity for USERRA claims. See Ramirez v. State

of N.M. Children, Youth & Families Dep’t, 372 P.3d 497 (N.M. 2016); Scocos v. State of

Wis. Dep’t of Veteran Affairs, 819 N.W.2d 360 (Wis. App. 2012). But, as DPS notes, the

statutes involved in those cases are distinguishable because they explicitly refer to

USERRA or to federal law generally. See Ramirez, 372 P.3d at 505 (construing N.M.

STAT. ANN. § 20-4-7.1 (West, Westlaw through 2018 2nd R.S.) (“The rights, benefits and



        8 Torres was not a member of “the state military forces of this state or any other state.” See TEX.
GOV’T CODE ANN. § 437.204(a) (West, Westlaw through 2017 1st C.S.). However, “service member” is
defined as “a member or former member of the state military forces or a component of the United States
armed forces, including a reserve component.” Id. § 437.001(8) (West, Westlaw through 2017 1st C.S.).
In any event, we need not determine whether Torres, as a United States Army reservist, was eligible to sue
under chapter 437 because of our conclusion herein that he did not exhaust administrative remedies with
regard to any such claim.

                                                   16
protections of [USERRA] shall apply to a member of the national guard ordered to federal

or state active duty for a period of thirty or more consecutive days.”)); Scocos, 819 N.W.2d

at 366 (construing W IS. STAT. ANN. § 321.64(2) (West, Westlaw through 2017 Act 367)

(providing that the discharge of persons restored to state employment after military

service is “subject to all federal . . . laws”)).

        We need not determine whether the New Mexico and Wisconsin statutes are

analogous to government code chapter 437 because, to the extent chapter 437 waives

sovereign immunity, it does so only in cases in which the administrative process has been

exhausted as set forth in the chapter. See TEX. GOV’T CODE ANN. § 311.034 (“Statutory

prerequisites to a suit, including the provision of notice, are jurisdictional requirements in

all suits against a governmental entity.”).               There is no dispute that Torres has not

exhausted his administrative remedies with respect to his claims against DPS.

Accordingly, assuming but not deciding that section 437.412 clearly and unambiguously

waives sovereign immunity for certain claims, Torres has not alleged facts showing that

the trial court had jurisdiction over his claims in particular. See id. § 311.034; Tex. Ass’n

of Bus., 852 S.W.2d at 446.9


          9 As the dissent notes, Texas Government Code chapter 613, entitled “Reemployment Following

Military Service,” explicitly provides that a State employee who leaves to enter active military service and
is later discharged from service “is entitled to be reemployed” in the same position or “a position of similar
seniority, status, and pay” at the same State agency. TEX. GOV’T CODE ANN. § 613.002(a) (West, Westlaw
through 2017 1st C.S.). If the employee sustained a disability during military service that prevents the
employee from performing the duties of such a position, the employee is entitled to be reemployed “in a
position that the employee can perform and has: (1) like seniority, status, and pay as the former position;
or (2) the nearest possible seniority, status, and pay to the former position.” Id. § 613.003 (West, Westlaw
through 2017 1st C.S.).
         Torres does not contend that section 613.021 waives DPS’s immunity to USERRA claims in state
court; in fact, the record contains no references to chapter 613 by any party, and it is not mentioned on
appeal. In any event, this statute does not clearly and unambiguously waive DPS’s immunity to his specific
claims. That is because, to the extent chapter 613 waives immunity, it does so only for suits seeking to
compel “a public official to comply with” the provisions of the chapter—it does not authorize the recovery of
monetary damages. See id. § 613.021(a) (West, Westlaw through 2017 1st C.S.). Torres’s petition did not
seek an order compelling DPS to restore his employment; rather, it sought only a declaration that DPS’s

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                                             III. CONCLUSION

        For the reasons set forth herein, DPS’s immunity to Torres’s suit has not been

validly abrogated by Congress or waived by the Texas Legislature.10 Accordingly, we

reverse the trial court’s judgment and render judgment granting DPS’s plea to the

jurisdiction.


                                                                            DORI CONTRERAS
                                                                            Justice

Dissenting Opinion by
Justice Benavides.

Delivered and filed the 20th
day of November, 2018.




actions were unlawful, a judgment for “compensatory and/or liquidated damages,” and attorney’s fees and
costs. Those remedies are not recoverable under chapter 613. See id. It follows that sovereign immunity
is not waived for a suit seeking those remedies. See Zachry Const. Corp. v. Port of Hous. Auth. of Harris
Cty., 449 S.W.3d 98, 110 (Tex. 2014) (holding that chapter 271 of the Texas Local Government Code “does
not waive immunity from suit on a claim for damages not recoverable” under that statute); Tooke v. City of
Mexia, 197 S.W.3d 325, 346 (Tex. 2006) (same).
         10 The dissent argues that our ruling leaves our armed forces with “no remedy in state courts when

they have faced employment discrimination from a state agency due to their service to our country.”
Respectfully, that is incorrect. State military forces may sue under chapter 437, provided that administrative
remedies are exhausted. See TEX. GOV’T CODE ANN. § 613.021(a). And as the dissent seems to
acknowledge, a state employee claiming employment discrimination due to federal military service may
sue, notwithstanding sovereign immunity, under Texas Government Code chapter 613. See TEX. GOV’T
CODE ANN. § 613.021(a). Had Torres sued under this statute and proved his case, he would have been
entitled to an order compelling DPS to reemploy him, despite his disability, “in a position that [he] can
perform and has: (1) like seniority, status, and pay as the former position; or (2) the nearest possible
seniority, status, and pay to the former position.” Id. § 613.003.
          To the extent the precise remedy sought by Torres—i.e., monetary damages—is unavailable to
him, it is not this Court that is depriving him of that option. Rather, the Texas Legislature has chosen not
to waive immunity for that remedy.

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