                             NUMBER 13-16-00351-CV

                            COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                    CORPUS CHRISTI – EDINBURG

JOAN PRICE,                                                                  Appellant,

                                            v.

THE UNIVERSITY OF TEXAS AT
BROWNSVILLE TEXAS SOUTHMOST
COLLEGE,                                                                      Appellee.


                    On appeal from the 357th District Court
                         of Cameron County, Texas.


                         MEMORANDUM OPINION
   Before Chief Justice Valdez and Justices Contreras and Hinojosa
             Memorandum Opinion by Justice Contreras
      Appellant Joan Price contends that the trial court erred in dismissing her petition

for bill of review. Price sought by her petition to vacate an earlier judgment denying

reinstatement of a suit she filed against appellee, the University of Texas at Brownsville-
Texas Southmost College (UTB-TSC).1 By one issue, Price argues that she was entitled

to a hearing on the petition because she met all the requirements for a bill of review. We

affirm.

                                           I. BACKGROUND

A.        Underlying Suit

          Price filed suit against UTB-TSC in August of 2011 for disability discrimination and

retaliation under the Texas Labor Code. See TEX. LAB. CODE ANN. ch. 21 (West, Westlaw

through 2017 1st C.S.). Specifically, she alleged that she was forced to resign from her

position as an art historian in 2005, that UTB-TSC discriminated against her when it failed

to rehire her in 2009, and that she was retaliated against when it failed to rehire her in

2010.

          UTB-TSC answered the suit generally denying the allegations and setting forth

various affirmative defenses. On April 11, 2012, the trial court rendered an “Order Setting

Trial Date Telephonic Conference” stating that a conference would be held on April 24,

2012, and that “[t]he purpose of this hearing is to agree on a Trial date.” On June 4, 2012,

the trial court rendered an “Agreed Docket Control Order” setting various discovery

deadlines and setting a trial date of November 5, 2012.

          On October 3, 2012, UTB-TSC filed a plea to the jurisdiction and motion for

summary judgment asserting that Price’s suit is barred by sovereign immunity because,

among other things: (1) there was no position available for which she could be hired, and

(2) the suit was untimely filed. See Mission Consol. Indep. Sch. Dist. v. Garcia, 253


          1
          In 2015, the University of Texas at Brownsville merged with the University of Texas-Pan American
to become the University of Texas-Rio Grande Valley, and Texas Southmost College became an
autonomous institution. We refer to appellee as UTB-TSC because that was the name used at the time
Price’s suit was filed and dismissed.

                                                    2
S.W.3d 653, 660 (Tex. 2008) (holding that sovereign immunity is waived for discrimination

suits brought under the labor code if “the procedures outlined in the statute have been

met”); see also LaPierre v. Benson Nissan, Inc., 86 F.3d 444, 448 (5th Cir. 1996) (holding

that, to show discrimination, a plaintiff must show that there was an “available

employment position” for which he or she was qualified but not hired). The trial court set

a hearing on the plea to the jurisdiction and summary judgment motion for October 29,

2012.     UTB-TSC then filed a “Motion for Extension of Docket Control Order [or]

Alternatively Motion For Continuance” (the Motion to Continue) asking to delay the

discovery deadlines and the trial setting because UTB-TSC’s counsel was set for trial in

another cause on October 29, 2012 and had a conference in federal court scheduled for

October 31, 2012.2 The trial court ordered that the Motion to Continue be heard on

October 29, 2012 along with the other motions.

        Price’s counsel then faxed a letter to the trial court coordinator dated October 25,

2012, stating that he also had conflicts on October 29 to 31, 2012 and would not be

available on those dates. Price’s counsel stated in the letter that he is in agreement with

UTB-TSC’s Motion to Continue, and he requested that the court “not penalize my client

for my failure to appear on October 29, 2012.” He attached to the letter a copy of an

“Agreed Motion for Extension of Docket Control Order [or] Alternatively Motion For

Continuance” which he signed but which was not signed by UTB-TSC’s counsel.3



       2 On appeal, UTB-TSC asserts that its Motion to Continue did not seek to postpone the October

29, 2012 plea to the jurisdiction hearing. However, the motion explained that UTB-TSC’s counsel would
be unavailable on October 29, and the plea to the jurisdiction hearing was the only proceeding set for that
date.
        3 Price’s counsel noted in the letter that, prior to filing the Motion to Continue, UTB-TSC’s counsel

had contacted him to ask whether he was in agreement with the motion. According to the letter, Price’s
counsel agreed to the motion and signed it but, “for whatever reason,” the signed agreed motion was not
returned to UTB-TSC’s counsel until after October 15, 2012, and so UTB-TSC filed the motion instead as

                                                     3
        Nevertheless, the hearing went forward on October 29, 2012. UTB-TSC’s counsel

appeared, but Price’s counsel did not. At the hearing, the trial court remarked that there

was nothing in his file indicating that Price’s counsel had communicated his unavailability

to the court. The trial court then granted UTB-TSC’s plea to the jurisdiction without

addressing its motion for summary judgment or its Motion to Continue. A written judgment

granting the plea to the jurisdiction and dismissing Price’s suit was rendered that day.

B.      Motion to Reinstate

        On November 28, 2012, Price filed a motion to reinstate the case under Texas

Rule of Civil Procedure 165a(3), arguing that her counsel provided “sufficient justification”

for his failure to appear on October 29, 2012,4 and requesting an oral hearing on the

matter. See TEX. R. CIV. P. 165a(3) (providing that, after dismissing a suit for want of

prosecution, “[t]he court shall reinstate the case upon finding after a hearing that the

failure of the party or his attorney [to appear] was not intentional or the result of conscious

indifference but was due to an accident or mistake or that the failure has been otherwise

reasonably explained”). UTB-TSC filed a response arguing that Rule 165a(3) does not

apply because the case was dismissed for want of jurisdiction, not for want of prosecution.

        The record shows that, on January 9, 2013, the trial court rendered another “Order



an opposed motion.
        4   Price’s motion to reinstate argued specifically:
        [T]he Court should reinstate this cause of action because Plaintiff[’s] counsel has provided
        sufficient justification for his non-appearance at the hearings on October 29, 201[2] and for
        the lack of filing a response to the Plea to the Jurisdiction because Plaintiff’s counsel did
        not waive the 21-day notice requirement. The Court should not have been able to hear the
        motion without having previously granting leave for the Motion for Summary Judgment to
        be filed within the 21 days as required by Rule 166a(c).
See TEX. R. CIV. P. 166a(c) (“Except on leave of court, with notice to opposing counsel, [a motion for
summary judgment] and any supporting affidavits shall be filed and served at least twenty-one days before
the time specified for hearing.”).

                                                        4
Setting Trial Date Telephonic Conference,” this time setting a hearing for January 29,

2013. Again, the order stated: “The purpose of this hearing is to agree on a Trial date.”

On appeal, Price argues that this order implied that her motion to reinstate had been

granted. On January 29, 2013, the parties and the court apparently realized that the

January 9, 2013 order was issued in error, that the cause was not ready to be set for trial

and that, instead, a hearing should be set on the motion to reinstate. The trial court later

rendered an order setting a hearing on Price’s motion to reinstate for February 28, 2013.

        On April 8, 2013, the trial court rendered an order concluding that the motion to

reinstate had been overruled by operation of law on January 12, 2013, and that the trial

court lost plenary power to grant the motion on February 11, 2013.5 The April 8, 2013

order set forth that, under the plain language of the October 29, 2012 judgment, Price’s

suit was dismissed pursuant to UTB-TSC’s plea to the jurisdiction and not for want of

prosecution; therefore, Price “should have filed a motion for new trial [under Texas Rule

of Civil Procedure 329b], not a motion to reinstate.” In any event, according to the April

8 order, “whether proceeding under Rule 165a or Rule 329b, the applicable time periods

to consider [Price]’s motion to reinstate have expired.” See TEX. R. CIV. P. 165a(3)

(providing that a motion to reinstate a case previously dismissed for want of prosecution

is generally considered overruled by operation of law if it is not decided by written order

within 75 days after the judgment is signed); TEX. R. CIV. P. 329b(c) (providing that a

motion for new trial is considered overruled by operation of law if it is not decided by


        5 The April 8, 2013 order was signed by the Honorable Manuel Bañales, who was assigned to the
357th Judicial District for that week by the Presiding Judge of the Fifth Administrative Judicial Region. The
order notes that the elected judge of that court, the Honorable Leonel Alejandro, had resigned effective
December 31, 2012; that the Honorable Menton Murray was assigned to that court from January 1, 2013
to February 19, 2013; and that since that time, “other Judges have been assigned from week to week or
other time periods to preside over the Court.”

                                                     5
written order within 75 days after the judgment is signed); TEX. R. CIV. P. 329b(e) (“If a

motion for new trial is timely filed by any party, the trial court, regardless of whether an

appeal has been perfected, has plenary power to grant a new trial or to vacate, modify,

correct, or reform the judgment until thirty days after all such timely-filed motions are

overruled, either by a written and signed order or by operation of law, whichever occurs

first.”).

C.          Petition for Bill of Review

            Price filed the instant petition for bill of review on January 27, 2016, asking to

reinstate the underlying suit. The petition argues that the failure of her counsel to appear

at the October 29, 2012 hearing was neither intentional nor the result of conscious

indifference, but was instead the result of counsel having to appear at previously-

scheduled hearings in unrelated cases. The petition further contends that

            the Court’s plenary power should have been extended an additional 30 days
            because the Court erred in sending an Order for setting the case for trial.
            Without such an Order, [Price] would have set her case for a hearing within
            the normal 105-day window for the Court to rule on the Motion to Reinstate.
            However, due to an error by the Court, [Price] did not file the Notice for
            Hearing until January 31, 2013; and because of scheduling issues with both
            parties, the hearing could not be held any earlier than February 14, 2013.

In response to the petition, UTB-TSC filed a plea to the jurisdiction contending that Price

has not presented prima facie proof of the elements necessary to obtain a bill of review.

No evidence was attached to the plea.

            After a hearing on June 2, 2016,6 the trial court granted UTB-TSC’s plea to the

jurisdiction and dismissed Price’s petition for bill of review. This appeal followed.


           UTB-TSC’s counsel appeared, but Price’s counsel did not appear, at the June 2, 2016 hearing.
            6

The court, the Honorable Juan A. Magallanes presiding, remarked: “Well, it seems to me if [Price’s counsel]
is not interested in defending his bill of review and he doesn’t have the temerity to call or show up, then
your motion is well taken and it will be granted.”

                                                    6
                                      II. DISCUSSION

A.     Standard of Review and Applicable Law

       A bill of review is an equitable proceeding to set aside a judgment that is not void

on the face of the record but is no longer appealable or subject to a motion for new trial.

King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003); Baker v. Goldsmith, 582

S.W.2d 404, 406 (Tex. 1979). Courts narrowly construe the grounds on which a plaintiff

may obtain a bill of review due to Texas’s fundamental public policy favoring the finality

of judgments. Mabon Ltd. v. Afri–Carib Enters., Inc., 369 S.W.3d 809, 812 (Tex. 2012);

Alexander v. Hagedorn, 226 S.W.2d 996, 998 (Tex. 1950). To obtain an equitable bill of

review, a petitioner must generally plead and provide prima facie proof of:            (1) a

meritorious claim or defense to the judgment; (2) which the petitioner was prevented from

making by official mistake or by the opposing party’s fraud, accident, or wrongful act; (3)

unmixed with any fault or negligence on the petitioner’s own part. Valdez v. Hollenbeck,

465 S.W.3d 217, 226 (Tex. 2015); King Ranch, Inc., 118 S.W.3d at 752; Baker, 582

S.W.2d at 408; Alexander, 226 S.W.2d at 998.

       Ordinarily, we review the denial of a bill of review under an abuse of discretion

standard. Temple v. Archambo, 161 S.W.3d 217, 224 (Tex. App.—Corpus Christi 2005,

no pet.). Here, however, the order on appeal granted UTB-TSC’s plea to the jurisdiction

on Price’s petition for bill of review. Whether a trial 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); Tex. Nat. Res. Conservation Comm’n v. IT-Davy, 74

S.W.3d 849, 855 (Tex. 2002).         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



                                             7
Control Bd., 852 S.W.2d 440, 446 (Tex. 1993); Univ. of N. Tex. v. Harvey, 124 S.W.3d

216, 220 (Tex. App.—Fort Worth 2003, pet. denied). 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.

B.     Analysis

       Whether the trial court had subject matter jurisdiction to consider Price’s petition

for bill of review is a different question than whether the petition was actually meritorious.

Courts have consistently held that a trial court generally lacks jurisdiction over a bill of

review proceeding if it is not the same court that rendered the challenged judgment. See

Frost Nat’l Bank v. Fernandez, 315 S.W.3d 494, 504 (Tex. 2010) (“Because it is a direct

attack, a bill of review must be brought in the court that rendered the original judgment,

and only that court has jurisdiction over the bill.”); In re John G. Kenedy Mem’l Found.,

159 S.W.3d 133, 141 (Tex. App.—Corpus Christi 2004, no pet.) (same). That is not to

say, however, that a trial court has jurisdiction over any bill-of-review proceeding

contesting that court’s own prior judgment. For example, a trial court may arguably lack

jurisdiction to consider such a petition if, as here, the bill-of-review defendant is a

governmental entity that is immune to suit unless the Legislature has clearly and

unambiguously waived immunity. See Tooke v. City of Mexia, 197 S.W.3d 325, 329 (Tex.

2006) (citing TEX. GOV’T CODE ANN. § 311.034 (West, Westlaw through 2017 1st R.S.)).

Though Price alleged in her underlying suit that UTB-TSC’s immunity was waived by the

Texas Labor Code, she did not explain in her petition for bill of review whether or how

UTB-TSC’s governmental immunity has been waived for the equitable bill of review

proceeding.



                                              8
        In any event, though the parties cite no case law directly on point, and we find

none, they appear to agree that the trial court had jurisdiction over Price’s petition for bill

of review if and only if Price made a prima facie showing of the three equitable elements

as set forth above. See Valdez, 465 S.W.3d at 226. We will assume, but not decide, that

this is the proper standard to apply in the present case.

        We find that Price failed to make such a showing. In her petition for bill of review,

Price argued that: (1) her motion to reinstate was meritorious7; (2) there were two “official

mistakes” that prevented her from “having her day in court”8; and (3) her counsel was not

negligent. See id. In its plea to the jurisdiction, UTB-TSC argued in part that Price failed

to make a prima facie showing of the first bill-of-review element—a meritorious claim—

because, among other things, her underlying suit was untimely filed.

        We agree. To maintain a discrimination suit under the labor code, a complainant

must first exhaust his or her administrative remedies by filing a complaint with the Texas

Workforce Commission (TWC). Schroeder v. Tex. Iron Works, Inc., 813 S.W.2d 483, 485

(Tex. 1991); El Paso Cty. v. Vasquez, 508 S.W.3d 626, 633 (Tex. App.—El Paso 2016,

pet. denied); see TEX. LAB. CODE ANN. § 21.201. If TWC dismisses the complaint or fails

to resolve it within 180 days of the date it was filed, it must inform the complainant of that

fact in writing. See TEX. LAB. CODE ANN. § 21.208. The complainant may then request

from TWC a written notice of the complainant’s right to file a civil action. Id. § 21.251(a).


        7Specifically, Price argued that her motion to reinstate was meritorious because, contrary to UTB-
TSC’s allegations in its 2012 plea to the jurisdiction, there was in fact a position available for which she
could have been hired. She attached a copy of a UTB-TSC “Employment Bulletin” dated November 2008
showing that there was an Assistant Professor in Art History position available for the 2009-2010 academic
year.
        8Specifically, Price contended that the trial court clerk erred by: (1) not filing her counsel’s October,
25, 2012 faxed letter until November 19, 2012; and (2) issuing the January 9, 2013 “Order Setting Trial
Date Telephonic Conference,” which she claims implied that her motion to reinstate had been granted.

                                                       9
After receiving such notice, the complainant has sixty days within which to file suit against

the employer. Id. § 21.254. If suit is filed against a government employer outside of that

sixty-day period, the trial court lacks jurisdiction. See Garcia, 253 S.W.3d at 660.

        According to Price’s petition in the underlying suit, she received notice of her

complaint’s dismissal and of her right to file a civil action from TWC on June 22, 2011.9

However, she did not file suit until August 23, 2011, which is sixty-two days after she

received notice.         Therefore, her suit was untimely filed and the trial court lacked

jurisdiction. See TEX. LAB. CODE ANN. § 21.254; Garcia, 253 S.W.3d at 660.10

        Because the trial court lacked jurisdiction over the underlying suit, Price has not

shown that her motion to reinstate was meritorious. Price’s petition for bill of review

therefore did not plead facts affirmatively showing that the trial court had jurisdiction.

Accordingly, the trial court did not err by granting UTB-TSC’s plea to the jurisdiction and

dismissing the petition. Price’s issue on appeal is overruled.

                                              III. CONCLUSION

        We affirm the trial court’s judgment.

                                                                     DORI CONTRERAS
                                                                     Justice

Delivered and filed the
16th day of November, 2017.




        9   The actual notice, dated June 16, 2011, was attached as an exhibit to Price’s underlying petition.
       10 Though UTB-TSC raised the timeliness issue in its 2012 plea to the jurisdiction, Price did not

address the issue in her response to the plea, in her motion to reinstate, or in her petition for bill of review.

                                                      10
