                                   COURT OF APPEALS
                                EIGHTH DISTRICT OF TEXAS
                                     EL PASO, TEXAS


                                                 §
IN RE:                                                              No. 08-16-00163-CV
                                                 §
TEXAS DEPARTMENT OF                                           AN ORIGINAL PROCEEDING
TRANSPORTATION,                                  §
                                                                     IN MANDAMUS
RELATOR                                          §

                                          OPINION

         The Texas Department of Transportation (TxDOT) has filed a mandamus petition against

the Honorable Bonnie Rangel, Judge of the 171st District Court of El Paso County, Texas,

challenging an order denying TxDOT’s motion to stay the underlying case pending interlocutory

appeal.1 The petition for writ of mandamus is denied.

                                Factual and Procedural Summary

         TxDOT terminated Flores’ employment on July 31, 2013, and Flores filed an age

discrimination suit. In its answer, TxDOT raised the defense of sovereign immunity from suit

and liability. On November 5, 2014, TxDOT filed a motion for summary judgment. While the

motion did not expressly refer to sovereign immunity, it asserted that Flores could not establish a

prima facie case of age discrimination because TxDOT filled the vacant position with an older

employee. TxDOT sought dismissal of the suit with prejudice. TxDOT asserts in its mandamus


1
 The underlying case is Genaro Flores v. Texas Department of Transportation, cause number
2014DCV1263.
petition that the trial court refused to set the motion for hearing because Flores’ counsel would

not agree to a hearing date. On September 18, 2015, the trial court entered a discovery control

plan and scheduling order, and it set the case for trial on April 4, 2016. The order did not include

a deadline for filing a plea to the jurisdiction. TxDOT amended its motion for summary

judgment on February 10, 2016. Like the first motion, TxDOT did not refer to its argument as a

plea to the jurisdiction, and it did not expressly refer to sovereign immunity. The trial court set

the summary judgment motion for hearing on March 2, 2016, but it re-scheduled the hearing for

March 22, 2016. After the hearing was rescheduled, TxDOT filed a combined second amended

motion for summary judgment and a motion to dismiss for want of jurisdiction on the ground

that Flores had failed to establish a prima facie case. Following the hearing, the trial court

denied both motions. Upon learning that TxDOT intended to appeal and file a motion to stay,

the trial court canceled the scheduled trial setting. TxDOT filed its notice of appeal 2and a

motion to stay in the trial court. At the hearing on the motion to stay, Flores vigorously argued

that TxDOT was not entitled to the automatic stay because it had not filed a pleading titled “Plea

to the Jurisdiction” within the deadlines provided for by Section 51.014 of the Texas Civil

Practice and Remedies Code. The trial court denied the motion to stay and set the case for trial

on January 9, 2017. TxDOT challenged the trial court’s refusal to stay the case by filing a

mandamus petition.

                              MANDAMUS STANDARD OF REVIEW

        To be entitled to the extraordinary relief of a writ of mandamus, the relator must show

that the trial court committed a clear abuse of discretion for which the relator has no adequate

remedy at law. In re Frank Kent Motor Company, 361 S.W.3d 628, 630 (Tex. 2012); In re


2
  The interlocutory appeal is styled Texas Department of Transportation v. Genaro Flores, cause number 08-16-
00049-CV. The briefs have been filed, and the case is set for submission on October 20, 2016.

                                                     -2-
Prudential Insurance Company of America, 148 S.W.3d 124, 135-36 (Tex. 2004). A trial court

abuses its discretion when it acts arbitrarily, capriciously, and without reference to guiding

principles. In re Mid-Century Insurance Company of Texas, 426 S.W.3d 169, 178 (Tex.App.--

Houston [1st Dist.] 2012, orig. proceeding). A trial court has no discretion in determining what

the law is or in applying the law to the facts. Walker v. Packer, 827 S.W.2d 833, 840 (Tex.

1992). Consequently, an abuse of discretion occurs if a trial court clearly fails to correctly

analyze or apply the law. In re Olshan Foundation Repair Co., LLC, 328 S.W.3d 883, 888 (Tex.

2010).

                                      AUTOMATIC STAY

         TxDOT contends that the trial court clearly abused its discretion by refusing to stay all

proceedings in the underlying case, including the trial setting, pending resolution of its

interlocutory appeal. Flores responds that TxDOT is not entitled to a stay because it did not

challenge the trial court’s jurisdiction until well after the deadline established by Section

51.014(c) of the Texas Civil Practice and Remedies Code.

         Section 51.014(a)(8) of the Texas Civil Practice and Remedies Code allows a state

agency to appeal the denial of a plea to the jurisdiction. See TEX.CIV.PRAC.&REM.CODE ANN.

§ 51.014(a)(8)(West Supp. 2016)(“A person may appeal from an interlocutory order of a district

court, county court at law, statutory probate court, or county court that . . . (8) grants or denies a

plea to the jurisdiction by a governmental unit as that term is defined in Section 101.001 . . . .”).

Further, an interlocutory appeal under Section 51.014(a)(8) automatically stays all proceedings

in the trial court pending resolution of the appeal.             TEX.CIV.PRAC.&REM.CODE ANN.

§ 51.014(b). When the appeal is taken under Subsection (a)(8), as in this case, the automatic stay

is available only when the plea to the jurisdiction is filed, and the hearing requested, within the



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timeframe set forth in Subsection (c). TEX.CIV.PRAC.&REM.CODE ANN. § 51.014(c); In re

University of Incarnate Word, 469 S.W.3d 255, 257-58 (Tex.App.--San Antonio 2015, orig.

proceeding).

        Subsection (c) provides as follows:

        (c) A denial of a motion for summary judgment, special appearance, or plea to the
        jurisdiction described by Subsection (a)(5), (7), or (8) is not subject to the
        automatic stay under Subsection (b) unless the motion, special appearance, or plea
        to the jurisdiction is filed and requested for submission or hearing before the trial
        court not later than the later of:

               (1) a date set by the trial court in a scheduling order entered under the
        Texas Rules of Civil Procedure; or

                (2) the 180th day after the date the defendant files:

                (A) the original answer;

                (B) the first other responsive pleading to the plaintiff's petition; or

                (C) if the plaintiff files an amended pleading that alleges a new cause of
        action against the defendant and the defendant is able to raise a defense to the new
        cause of action under Subsection (a)(5), (7), or (8), the responsive pleading that
        raises that defense.

TEX.CIV.PRAC.&REM.CODE ANN. § 51.014(c).

        The trial court did not set a date in its scheduling order for filing a plea to the jurisdiction

or other dispositive motions. Consequently, TxDOT is not entitled to the automatic stay unless it

filed its jurisdictional challenge within 180 days after it filed its original answer on May 15,

2014, or in other words, by November 11, 2014. It is undisputed that TxDOT filed its motion for

summary judgment on November 5, 2014, but Flores asserts that the summary judgment motion

is not a “plea to the jurisdiction.”

        The Supreme Court has made clear that a jurisdictional challenge can be raised by a

number of procedural vehicles, including a plea to the jurisdiction, a motion to dismiss, or a



                                                  -4-
motion for summary judgment. See Bland Independent School District v. Blue, 34 S.W.3d 547,

554 (Tex. 2000). While Section 51.014(a)(8) and (c) utilize the phrase “plea to the jurisdiction,”

it is well established that the statute is not restricted to rulings on a pleading titled “plea to the

jurisdiction.” The proper focus is on the substance of the pleading, not its title. “To be entitled

to an interlocutory appeal, section 51.014(a)(8) requires the denial of a jurisdictional challenge.”

Thomas v. Long, 207 S.W.3d 334, 339 (Tex. 2006).

          To establish a prima facie case of age discrimination under the Texas Commission on

Human Rights Act, the plaintiff in a true replacement case must show that he or she was (1) a

member of a protected class; (2) qualified for his or her employment position, (3) terminated by

the employer, and (4) replaced by someone younger. Mission Consolidated Independent School

District v. Garcia, 372 S.W.3d 629, 632 (Tex. 2012). Under the McDonnell Douglas3 burden-

shifting framework, the plaintiff is entitled to a presumption of discrimination if he or she meets

the minimal initial burden of establishing a prima facie case of discrimination.             Mission

Consolidated, 372 S.W.3d at 634.

          The Legislature has waived immunity for a suit under the TCHRA only where the

plaintiff actually alleges a violation of the TCHRA by pleading facts that state a claim under that

act. Mission Consolidated, 372 S.W.3d at 636. In an employment discrimination suit against a

governmental agency, “the prima facie case implicates both the merits of the claim and the

court’s jurisdiction because of the doctrine of sovereign immunity.” Id. at 635-36. “For a

plaintiff who proceeds along the McDonnell Douglas burden-shifting framework, the prima facie

case is the necessary first step to bringing a discrimination claim under the TCHRA.” Id. at 637.

If the plaintiff fails to demonstrate those elements, he does not get the presumption of

discrimination and never proves his claim. Id. As a result, the trial court has no jurisdiction and
3
    McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973).

                                                      -5-
the claim should be dismissed. Mission Consolidated, 372 S.W.3d at 637.

       TxDOT moved for summary judgment and dismissal of the suit on the ground that Flores

could not establish a prima facie case of age discrimination because TxDOT filled the vacant

position with an older employee.        In its motion for summary judgment, TxDOT clearly

challenged the existence of this element of the prima facie case, and it sought dismissal of the

suit. While it did not explicitly state its motion in terms of a jurisdictional challenge or use the

words “sovereign immunity,” the trial court would have been required to grant the motion for

summary judgment and dismiss the case for lack of jurisdiction if it found that Flores failed to

raise a fact question on the issue of discriminatory intent. See Mission Consolidated, 372

S.W.3d at 642-43. Under these facts, TxDOT’s motion for summary judgment is a jurisdictional

challenge for purposes of Section 51.014(a)(8) and (c). To hold otherwise would elevate form

over substance.

       The remaining question is whether TxDOT “requested submission or hearing” of its

motion for summary judgment by the deadline, November 11, 2014. Absent evidence that it did

so, TxDOT is not entitled to the automatic stay, and mandamus relief must be denied. TxDOT

claims that it requested a hearing by the deadline, but the trial court refused to set the motion for

hearing unless the parties agreed to a setting. The mandamus record does not include any

evidence to support this factual assertion. At the hearing on the motion to stay, counsel for

TxDOT stated that she requested a hearing on the motion for summary judgment, but Flores

would not agree to a setting in November 2014, and the trial court would not set it until Flores

agreed. Counsel’s statements at the hearing are not competent evidence. See Bay Financial

Savings Bank, FSB v. Brown, 142 S.W.3d 586, 590 (Tex.App.--Texarkana 2004, no pet.).

TxDOT also directs our attention to a Notice of Hearing filed on November 11, 2014, which



                                                -6-
states that the parties agreed to attend a status conference on December 5, 2014. TxDOT claims

that the purpose of this hearing was to determine when the trial court would hear TxDOT’s

motion for summary judgment, but the order does not state the purpose for the hearing, and we

have found no evidence in the mandamus record supporting this factual statement other than an

unsworn representation made by counsel at the hearing on the motion to stay. Finally, TxDOT

asserts that Respondent stated during the December 5, 2014 status hearing that she would not set

the motion for summary judgment for a hearing until Flores had the opportunity to conduct

discovery, but there is no record of the hearing.

       The mandamus record establishes that TxDOT filed its jurisdictional challenge within

Section 51.014’s deadline, but it has not shown that it requested a hearing on its summary

judgment motion by the deadline. Consequently, TxDOT has failed to establish it is entitled to

mandamus relief. The petition for writ of mandamus is denied.



October 14, 2016
                                              YVONNE T. RODRIGUEZ, Justice

Before McClure, C.J., Rodriguez, and Hughes, JJ.




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