                            NUMBER 13-11-00167-CV

                              COURT OF APPEALS

                      THIRTEENTH DISTRICT OF TEXAS

                        CORPUS CHRISTI - EDINBURG


JOSE P. BALDONADO,                                                         Appellant,

                                          v.

TEXAS DEPARTMENT OF HEALTH
AND HUMAN SERVICES COMMISSION,
AND THE TEXAS DEPARTMENT OF AGING
AND DISABILITY SERVICES,                                                  Appellees.


                   On appeal from the 445th District Court
                        of Cameron County, Texas.


                 MEMORANDUM OPINION ON REHEARING

    Before Chief Justice Valdez and Justices Garza and Benavides
     Memorandum Opinion on Rehearing by Chief Justice Valdez

      By one issue, appellant, Jose P. Baldonado, appeals from the district court’s

order granting the plea to the jurisdiction of appellees, Texas Department of Health and

Human Services Commission (“HHSC”) and Texas Department of Aging and Disability

Services (“DADS”). On March 29, 2012, we issued an opinion reversing the district
court’s order and remanding the cause for further proceedings.            Subsequently,

appellees filed a motion for rehearing, arguing, among other things, that the Court’s

opinion failed to address what appellees consider to be alternative grounds for the

district court’s ruling.    We deny appellees’ motion for rehearing, withdraw our prior

opinion, and substitute the following opinion, reversing and remanding.

                                       I. BACKGROUND

         In the spring of 2007, appellant submitted employment applications to HHSC for

at least 52 open positions. Appellant, who is over forty years of age, was passed over

for all positions.      On August 30, 2007, appellant signed and filed a charge of

discrimination with the Equal Employment Opportunity Commission (“EEOC”). On June

26, 2008, appellant received from the Texas Workforce Commission (“TWC”) a notice of

his right to file a civil action.

         On August 25, 2008, appellant filed suit against HHSC, alleging that HHSC

refused to hire him because of his age in violation of the Texas Labor Code. See TEX.

LAB. CODE ANN. § 21.051 (West 2006).             Service of process did not occur until

September 3, 2008.         On November 16, 2009, appellant filed an amended petition,

naming DADS as a co-defendant and alleging that DADS terminated his employment in

retaliation for filing a discrimination complaint against HHSC. See id. § 21.055 (West

2006).

         On October 18, 2010, appellees filed a combined motion for summary judgment

and plea to the jurisdiction. On November 30, 2010, the district court held a hearing on

appellees’ plea to the jurisdiction.     Appellees argued that the district court lacked




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jurisdiction because, among other things, appellant failed to file and serve his lawsuit

within the 60-day period prescribed by law.

       On March 23, 2011, the district court entered a final order in the case, granting

appellees’ plea to the jurisdiction on the following basis:

       In this case, the Plaintiff had a statutory 60[-]day deadline to file suit and
       effectuate service; the Plaintiff filed suit on the 60th day, but he did not
       serve the Defendant governmental entity until the 65th day.

       The argument of due diligence has been accepted in limited scenarios as
       an equitable basis to toll statute of limitations deadlines; and for the
       record, as to any applicable statute of limitations issues, this Court
       believes that due diligence was met by the Plaintiff. However, this Court
       has been presented with no legal basis to support the Plaintiff’s argument
       that due diligence may toll jurisdictional deadlines.

       Texas Government Code § 311.034 states as follows:                     “Statutory
       prerequisites to a suit including the provisions of notice, are jurisdictional
       requirements in all suits against a governmental entity.” Based upon its
       review of said statute and relevant case law, this Court interprets the
       legislative intent of said statutory language to require filing of suit AND
       service of citation be completed upon a governmental entity prior to the
       termination of the statutory deadlines, in order for a court to retain
       jurisdiction. Specifically, this Court is of the opinion that it lost jurisdiction
       upon the expiration of a statutory 60[-]day deadline; the Plaintiff’s due
       diligence argument as to notice is NOT applicable on the issue of
       jurisdiction; a court either has jurisdiction or it does not have jurisdiction.
       Further, the Court would note the pertinent dictum of the above referenced
       statute in the following Texas Supreme Court cases: In re United Services
       Automobile Association, 307 S.W.3d 299, 308 (Tex. 2010), and University
       of Texas Southwestern Medical Center at Dallas v. Estate of Arancibia,
       08-0215 (TXSC October 2010). Based upon the foregoing, this Court has
       no option but to GRANT the “Defendants’ Plea to the Jurisdiction”; further,
       the Plaintiff’s claims against the Defendants are hereby denied.

                          II. DISMISSAL FOR LACK OF JURISDICTION

       In his sole issue, appellant argues that the district court erred in dismissing his

lawsuit for lack of jurisdiction on the foregoing basis. Appellees contend that, even if the

district court erred in dismissing the lawsuit on the grounds stated above, this Court



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should nonetheless affirm the ruling if any of the other grounds advanced in appellees’

plea to the jurisdiction are meritorious.

        A. Standard of Review

        A plea to the jurisdiction is a dilatory plea that seeks to defeat a cause of action

by questioning the trial court’s subject matter jurisdiction and should be decided "without

delving into the merits of the case.” Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554

(Tex. 2000). Subject matter jurisdiction is at the heart of a court’s power to decide a

case.    See id.     “We review a trial court's order granting or denying a plea to the

jurisdiction de novo.” Houston Mun. Employees Pension Sys. v. Ferrell, 248 S.W.3d

151, 156 (Tex. 2007). In our review, we examine the plaintiff’s petition and evidence

submitted by the parties “to the extent it is relevant to the jurisdictional issue.” Id.

        B. Analysis

        In this appeal, we are asked to decide whether compliance with the 60-day filing

period in section 21.254 of the labor code is a jurisdictional requirement. See TEX. LAB.

CODE ANN. § 21.254 (West 2006). Section 21.254 states: “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.” Id. Section 21.254 does not mandate that a suit that is

filed and served beyond the 60-day window must be dismissed. See McCollum v. Tex.

Dep’t of Licensing & Regulation, 321 S.W.3d 58, 64 (Tex. App.—Houston [1st Dist.]

2010, pet. filed).

        Section 21.254 has been construed as creating a statutory limitations period.

See Roberts v. Padre Island Brewing Co., 28 S.W.3d 618, 621 (Tex. App.—Corpus

Christi 2000, pet. denied) (“Likewise, we conclude that the sixty[-]day period, under



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section 21.254 of the Texas Labor Code, is the applicable period of limitations for the

purpose of service of process.”). This Court has previously held that service of citation

outside the limitations period in section 21.254 may be given effect only if the plaintiff

exercised due diligence in procuring issuance and service of citation upon the

defendant. See id. (citing Gant v. DeLeon, 786 S.W.2d 259, 260 (Tex. 1990) (per

curiam)). Thus, when a plaintiff files suit within the limitations period, but does not serve

the defendant until after the statutory period has expired, the date of service relates

back to the date of filing only if the plaintiff continuously exercised due diligence in

effecting service of citation upon the defendant.        Id.; see also Proulx v. Wells, 235

S.W.3d 213, 215 (Tex. 2007) (“If service is diligently effected after limitations has

expired, the date of service will relate back to the date of filing.”).

       In this case, the district court ruled that section 21.254 is jurisdictional in nature

and therefore dismissed appellant’s claims, despite the fact that suit was filed within the

limitations period and despite the court’s finding of due diligence in appellant’s service

of citation a mere five days outside the limitations period. To reach this decision, the

district court relied on section 311.034 of the Texas Government Code, which provides

that “statutory prerequisites to sue, including the provision of notice, are jurisdictional

requirements in all suits against a governmental entity.”           TEX. GOV’T CODE ANN. §

311.034 (West Supp. 2010). The district court reasoned that filing and serving the

lawsuit were “statutory prerequisites to sue” and were therefore jurisdictional

requirements under section 311.034 of the Texas Government Code. Id.

       “Statutory prerequisites to sue” are, by definition, things that must be done before

suit is filed. See Ballesteros v. Nueces County, 286 S.W.3d 566, 569–70 (Tex. App.—



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Corpus Christi 2009, pet. stricken) (recognizing that section 311.034 addresses

statutory prerequisites to a suit—“something that is required beforehand”).                  For

example, exhaustion of administrative remedies is said to be a “statutory prerequisite to

sue.” See Hoffmann-La Roche, Inc. v. Zeltwanger, 144 S.W.3d 438, 446 (Tex. 2004)

(“The CHRA further establishes a ‘comprehensive administrative review system,’ under

which the ‘exhaustion of administrative remedies is a mandatory prerequisite to filing a

civil action alleging violations of the CHRA.’”). Exhaustion of administrative remedies

must be done before filing suit. See Austin v. Healthtrust, Inc., 967 S.W.2d 400, 403

(Tex. 1998) (“And some statutory schemes require exhaustion of administrative

remedies before filing suit, while others allow the employee to proceed directly to

court.”).

       In contrast, service of citation is done after suit is filed. TEX. R. CIV. P. 22 (“A civil

suit in the district or county court shall be commenced by a petition filed in the office of

the clerk.”); id. at R. 99(a) (“Upon the filing of the petition, the clerk, when requested,

shall forthwith issue a citation and deliver the citation as directed by the requesting

party.”). Since it is impossible for service of citation to take place prior to filing suit,

service of citation cannot be considered a statutory prerequisite to filing suit. Thus,

service of citation is not a jurisdictional requirement under section 311.034 of the Texas

Government Code.

       Moreover, it is well-settled that if the suit is filed or service of citation occurs

outside the relevant limitations period, the defendant may assert limitations as an

affirmative defense under Rule 94. See Tex. Dep’t of Transp. v. Beckner, 74 S.W.3d

98, 103 (Tex. App.—Waco 2002, no pet.) (“[W]e first find that the forty-day filing period



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is a limitations period, not a jurisdictional requirement. If a petition is not filed within the

forty days, the defendant may assert an affirmative defense of limitations under Rule

94.”).

         In sum, the service of citation within the 60-day filing period in section 21.254 is

not an act that can be performed prior to filing suit and is therefore not a “prerequisite”

to filing suit and is not a jurisdictional requirement for purposes of section 311.034 of the

government code. See McCollum, 321 S.W.3d at 64 (“Because section 21.254 is not

jurisdictional, the trial court erred by granting the Department’s plea to the jurisdiction.”).

Accordingly, the district court erred in ruling to the contrary and in dismissing appellant’s

claims on that basis. Appellant’s sole issue is therefore sustained.

                                 III. ALTERNATIVE GROUNDS

         In their motion for rehearing, appellees argue that the district court’s order

dismissing appellant’s claims for lack of jurisdiction is not subject to reversal unless

appellant negates all the grounds on which the district court’s jurisdiction was

challenged in appellees’ plea to the jurisdiction. See State Farm Fire & Casualty Co. v.

S.S., 858 S.W.2d 374, 380 (Tex. 1993) (“When reviewing a summary judgment granted

on general grounds, this Court considers whether any theories asserted by the

summary judgment movant will support the summary judgment.”). Appellees object to

this Court remanding the case to allow the district court to rule, in the first instance, on

the remaining challenges to its jurisdiction. See Cincinnati Life Ins. Co. v. Cates, 927

S.W.2d 623, 625 (Tex. 1996) (“When a trial court grants summary judgment on specific

grounds, we have limited our consideration on appeal to the grounds upon which the

trial court granted summary judgment and the court of appeals affirmed.”). However,



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appellees’ approach “usurps the trial court’s authority to consider and rule on issues

before it and denies the appellate court of the benefit of the trial court’s decision on the

issue.” See State Farm, 858 S.W.2d at 381. “Such a practice results in appellate

courts rendering decisions on issues not considered by the trial court and voiding the

trial court’s decision without allowing it to first consider the alternate grounds.”     Id.

Moreover, it would tend to defeat, not further, the interest of judicial economy if this

Court were to render a decision concerning the district court’s exercise of jurisdiction

because the district court has not yet decided whether it will exercise jurisdiction. See

Cincinnati Life, 927 S.W.2d at 626. Accordingly, we overrule appellees’ argument.

                                     IV. CONCLUSION

       The order of the district court is reversed and the case remanded for further

proceedings consistent with this opinion.

                                                        ____________________
                                                        ROGELIO VALDEZ
                                                        Chief Justice


Delivered and filed the
27th day of August, 2012.




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