                                                                                 ACCEPTED
                                                                             03-16-00323-CV
                                                                                   13128307
                                                                  THIRD COURT OF APPEALS
                                                                             AUSTIN, TEXAS
                                                                        10/7/2016 2:16:49 PM
                                                                           JEFFREY D. KYLE
                                                                                      CLERK
                     Case No. 03-16-00323-CV

                 Third Court of Appeals of Texas         FILED IN
                                                  3rd COURT OF APPEALS
                                                      AUSTIN, TEXAS
                                                  10/7/2016 2:16:49 PM
 TEXAS HEALTH AND HUMAN SERVICES               COMMISSION
                                                    JEFFREY D. KYLE
                   Appellant,                             Clerk

                      v.
               ALBERT OLGUIN
                   Appellee.


          Appeal from the 353rd Judicial District Court
                     Travis County, Texas
                 Cause No. D-1-GN-15-002566
          The Honorable Lora J. Livingston, Presiding


                 APPELLANT’S REPLY BRIEF



KEN PAXTON                            ANGELA COLMENERO
Attorney General of Texas             Chief, General Litigation Division

JEFFREY C. MATEER                     ANDREW B. STEPHENS
First Assistant Attorney General      Texas Bar No. 24079396
                                      Assistant Attorney General
BRANTLEY STARR                        Office of the Attorney General
Deputy First Assistant Attorney       P.O. Box 12548, Capitol Station
General                               Austin, Texas 78711-2548
                                      Tel: (512) 463-2120
JAMES E. DAVIS                        Fax: (512) 320-0667
Deputy Attorney General for Civil
Litigation                            ATTORNEYS FOR APPELLANT



               ORAL ARGUMENT REQUESTED
                                         TABLE OF CONTENTS


TABLE OF CONTENTS ............................................................................................i
TABLE OF AUTHORITIES .................................................................................... ii
ARGUMENT IN REPLY ..........................................................................................1
PRAYER ....................................................................................................................9
CERTIFICATE OF COMPLIANCE .......................................................................11
                                   TABLE OF AUTHORITIES

Cases                                                                                               Page(s)

Davis v. Education Serv. Ctr.,
 62 S.W.3d 890 n. 4 (Tex. App.—Texarkana 2001, no pet.) ..................................2
El Paso Indep. Sch. Dist. v. Alspini,
  315 S.W.3d 144 (Tex. App.—El Paso 2010, no pet.) ............................................4
Heart Hosp. IV, L.P. v. King,
 116 S.W.3d 8316 (Tex. App.—Austin 2003, pet. denied) .................................6, 7
In re United Servs. Auto. Ass’n.,
  307 S.W.3d 299 (Tex. 2010) ..............................................................................4, 5
Jones v. State Bd. of Educator Certification,
  315 S.W.3d 237 (Tex. App.—Austin 2010, pet. denied) ...................................4, 6
Little v. Tex. Bd. of Law Exam’rs,
  334 S.W.3d 860 (Tex. App.—Austin 2011, no pet.) .........................................5, 7
Martin v. Southwest PCS, L.P.,
 2003 WL 22477695 at *2 (W.D. Tex. 2003) .........................................................3
Mission Consol. Indep. Sch. Dist. v. Garcia,
 253 S.W.3d 653 (Tex. 2008) ..............................................................................4, 8
Ocampo v. Laboratory Corp. of America,
 2005 WL 2708790 (W.D. Tex. Sept. 6, 2005) .......................................................2
Prairie View A&M Univ. v. Chatha,
  381 S.W.3d 500 (Tex. 2012) ..................................................................... 3, 4, 5, 8
Roberts v. Padre Island Brewing Co.,
  28 S.W.3d 61621 (Tex. App.—Corpus Christi 2000, pet. denied) ........................2
Sibley v. Kaiser Found. Health Plan of Tex.,
  998 S.W.2d 399 (Tex. App.—Texarkana 1999, no pet.) .......................................2
Tarrant County v. Vandigriff,
  71 S.W.3d 921 (Tex. App.—Fort Worth 2002, pet. denied)..................................2




                                                      ii
Tex. Dep’t of Criminal Justice v. Guard,
  No. 10-06-00065-CV, 2007 WL 1119572 (Tex. App.—Waco 2007, no pet.) ......4
Tex. Health & Human Servs. Comm’n v. Baldonado,
  No. 13-11-00167-CV, slip op. at 7-8, 2012 WL 1073278 (Tex. App.—Corpus
  Christi Aug. 27, 2012, pet. denied) (mem. op.)......................................................5
Wilmer-Hutchins Ind. School Dist. v. Sullivan,
 51 S.W.3d 29394 (Tex. 2001) ................................................................................7
Windle v. Mary Kay, Inc.,
 2003 WL 215087822 (Tex. App.—Dallas July 1, 2003, pet. denied) ...................2
Statutes
Tex. Civ. Prac. & Rem. Code § 16.064 .....................................................................7
Tex. Civ. Prac. & Rem. Code § 51.104 .....................................................................8
Tex. Gov. Code § 311.034 ............................................................................... passim
Tex. Lab. Code § 21.254 ................................................................................... 2, 3, 9




                                                        iii
                            Case No. 03-16-00323-CV

                         Third Court of Appeals of Texas


      TEXAS HEALTH AND HUMAN SERVICES COMMISSION
                             Appellant,
                                v.
                         ALBERT OLGUIN
                             Appellee.
__________________________________________________________________

                 Appeal from the 353rd Judicial District Court
                            Travis County, Texas
                        Cause No. D-1-GN-15-002566
                 The Honorable Lora J. Livingston, Presiding


                         APPELLANT’S REPLY BRIEF



      Appellant Texas Health and Human Services Commission (“HHSC”) files

this its Reply Brief, pursuant to Rule 38.3 of the Texas Rules of Appellate Procedure,

and asks this Court to reverse the trial court’s order denying HHSC’s plea to the

jurisdiction and dismiss this case for want of jurisdiction, and respectfully shows as

follows:

                            ARGUMENT IN REPLY

      In its brief, HHSC contended that the trial court erred in denying HHSC’s plea

to the jurisdiction because Appellee Albert Olguin (“Olguin”) failed to bring his

lawsuit against HHSC within 60 days of receiving notice of his right to file a civil
action, depriving the trial court of jurisdiction. The parties do not dispute the

relevant jurisdictional facts, only their legal effect. Olguin received his “right to

sue” letter on May 4, 2015 and filed suit on June 29, 2015. However, the suit was

not served on HHSC until July 20, 2015, which was more than 60 days after Olguin’s

receipt of the right to sue letter.

       Section 21.254 of the Texas Labor Code provides: “Within 60 days after the

date of notice of the right to file a civil action is received, the complainant may bring

a civil action against the respondent.” Tex. Lab. Code § 21.254 (West 2006). Olguin

does not dispute that section 21.254 requires both the filing of the lawsuit and service

of process on the defendant within the 60-day limitation period. See, e.g., Tarrant

County v. Vandigriff, 71 S.W.3d 921, 924 (Tex. App.—Fort Worth 2002, pet.

denied) (“The mere filing of a lawsuit is not sufficient to meet the requirements of

‘bringing suit’ within the limitations period [of Chapter 21]; rather, a plaintiff must

both file her action and have the defendant served with process.”) (emphasis in

original); Windle v. Mary Kay, Inc., 2003 WL 21508782, at *1-2 (Tex. App.—Dallas

July 1, 2003, pet. denied); Davis v. Education Serv. Ctr., 62 S.W.3d 890, 893 n. 4

(Tex. App.—Texarkana 2001, no pet.); Roberts v. Padre Island Brewing Co., 28

S.W.3d 618, 621 (Tex. App.—Corpus Christi 2000, pet. denied); Sibley v. Kaiser

Found. Health Plan of Tex., 998 S.W.2d 399, 405-06 (Tex. App.—Texarkana 1999,

no pet.); see also Ocampo v. Laboratory Corp. of America, 2005 WL 2708790 (W.D.



                                           2
Tex. Sept. 6, 2005); Martin v. Southwest PCS, L.P., 2003 WL 22477695, at *2 (W.D.

Tex. 2003) (citing above state court opinions).

       Rather, Olguin argues in his brief that section 21.254 of the Texas Labor Code

is not a jurisdictional prerequisite to maintaining a suit against a governmental entity

and urges the Court to adopt an equitable defense to toll the 60-day statutory deadline

for filing and serving a lawsuit against a governmental entity. Olguin Br. at 13-16.

There is no legal basis to support Olguin’s arguments. Based on section 311.034 of

the Texas Government Code1 and relevant case law, both filing of a lawsuit and

service of citation must be completed upon a governmental entity prior to

termination of the 60-day statutory deadline, in order for a court to retain jurisdiction.

       Olguin ignores the significance of the Supreme Court’s conclusion in Prairie

View A&M Univ. v. Chatha that mandatory deadlines for bringing a lawsuit against

a governmental entity are jurisdictional:

       We acknowledge that some courts of appeals have carved out specific
       provisions, such as certain filing deadlines, as non-jurisdictional.2 But
       we agree with the other courts of appeals that have relied on our
1
  Section 311.034 of the Texas Government Code, titled “Waiver of Sovereign Immunity,” states
that “[i]n 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
that waiver is effected by clear and unambiguous language. [ ] Statutory prerequisites to a suit,
including the provision of notice, are jurisdictional requirements in all suits against a governmental
agency.” Tex. Gov’t. Code. § 311.034 (West 2013).
2
  See, e.g., Tex. Dep’t of Criminal Justice v. Guard, No. 10-06-00065-CV, 2007 WL 1119572, at
*3 (Tex. App.—Waco 2007, no pet.) (“[A] filing period is not an act that must be performed prior
to filing suit and so it is not a statutory prerequisite.”).




                                                  3
       holdings in In re United Services Automobile Association and Mission
       Consolidated Independent School District3 for the proposition that a
       mandatory provision is a statutory prerequisite under section 311.034,
       provided it is to be complied with prior to filing suit.4 Under section
       311.034, a statutory requirement commanding action before filing suit
       is a statutory prerequisite. See, e.g., In re United Servs. Auto. Ass’n.,
       307 S.W.3d at 299. Thus, a statutory prerequisite to suit, whether
       administrative (such as filing a charge of discrimination) or procedural
       (such as timely filing a lawsuit) is jurisdictional when the defendant is
       a governmental entity. See Tex. Gov’t. Code § 311.034.

Prairie View A&M Univ. v. Chatha, 381 S.W.3d 500, 514-15 (Tex. 2012)

(“Chatha”).5 Likewise, the Supreme Court concluded in In re United Services


3
  In re United Servs. Auto. Ass’n., 307 S.W.3d 299, 310 (Tex. 2010) (“While the Legislature could
make the Labor Code filing deadlines jurisdictional, as it has in cases involving statutory
requirements relating to governmental entities, see Tex. Gov’t. Code 311.034 (providing that
‘statutory prerequisites to a suit, including the provision of notice, are jurisdictional requirements
in all suits against a governmental entity’), it has not done so here.”); Mission Consol. Indep. Sch.
Dist. v. Garcia, 253 S.W.3d 653, 660 (Tex. 2008) (“The Legislature . . . has consented to suits
brought under the TCHRA, provided the procedures outlined in the statute have been met.”).
4
  See, e.g., Jones v. State Bd. of Educator Certification, 315 S.W.3d 237, 240 (Tex. App.—Austin
2010, pet. denied) (stating that, “[i]n suits against governmental entities, a timely filed petition for
judicial review is a statutory prerequisite to suit, so that failure to comply deprives the trial court
of jurisdiction”); El Paso Indep. Sch. Dist. v. Alspini, 315 S.W.3d 144, 151 (Tex. App.—El Paso
2010, no pet.) (holding that the two-year limitations deadline to file suit under the TCHRA is a
statutory prerequisite contemplated by section 311.034).
5
  Olguin attempts to distinguish Chatha by arguing that its jurisdictional holding is limited to
section 21.202 of the TCHRA which requires a claimant to file an administrative complaint with
the Texas Workforce Commission not later than the 180th day after the date an allegedly unlawful
employment practice occurs. Olguin Br. at 15. However, Olguin’s arguments are without merit
in light of the Court’s conclusion that “timely filing a lawsuit is jurisdictional when the defendant
is a governmental entity.” Chatha, 381 S.W.3d at 515 (emphasis added). Olguin cites only one
other case, Texas Health & Human Services Commission v. Baldonado, as support for his argument
that the 60-day deadline for bringing a suit against a governmental entity is not jurisdictional.
Olguin Br. at 13; Tex. Health & Human Servs. Comm’n v. Baldonado, No. 13-11-00167-CV, slip
op. at 7-8, 2012 WL 1073278 (Tex. App.—Corpus Christi Aug. 27, 2012, pet. denied) (mem. op.)



                                                   4
Automobile Association that “[w]hile the Legislature could make the Labor Code

filing deadlines jurisdictional, as it has in cases involving statutory requirements

relating to governmental entities, see Tex. Gov’t. Code § 311.034 (providing that

‘statutory prerequisites to a suit, including the provision of notice, are jurisdictional

requirements in all suits against a governmental entity’), it has not done so here.”

307 S.W.3d at 308 (emphasis added). The Third Court of Appeals has also addressed

this issue and concluded that statutory deadlines for bringing suits against

governmental entities are jurisdictional statutory prerequisites and a party’s failure

to comply with the deadline deprives the trial court of jurisdiction. See Little v. Tex.

Bd. of Law Exam’rs, 334 S.W.3d 860, 864 (Tex. App.—Austin 2011, no pet.)

(holding that “[t]he 60-day deadline imposed by Rule XV(k)(1) [of the Rules

Governing Admission to the Bar of Texas] is a statutory prerequisite to suit against

TBLE, a governmental entity, and is therefore jurisdictional”) (emphasis added); see

also Heart Hosp. IV, L.P. v. King, 116 S.W.3d 831, 835-36 (Tex. App.—Austin

2003, pet. denied) (“The district court is generally without jurisdiction to review the

agency’s decision unless and until the plaintiff files a petition for judicial review




(holding that service of citation within the 60-day filing period is not a prerequisite to filing suit
and is not a jurisdictional requirement for purposes of section 311.034). However, in that case the
Corpus Christi Court of Appeals decided the jurisdictional issue and issued its opinion before the
Supreme Court decided and issued its opinion in Chatha, which renders Baldonado questionable
authority. Id.; Prairie View A&M Univ. v. Chatha, 381 S.W.3d 500 (Tex. Aug. 31, 2012).



                                                  5
within the statutorily prescribed fourteen days. If the fourteen days expire and the

plaintiff has failed to file a petition for judicial review, the Commission’s decision

becomes final and unappealable. No trial court can review the Commission’s

decision at that point; hence, the scope of the trial court’s jurisdiction is limited.

Therefore, we hold that the statutory fourteen-day deadline is a jurisdictional

statutory prerequisite and a party’s failure to comply with it deprives the trial court

of jurisdiction to review the Commission’s decision.”) (internal citations omitted)

(emphasis added); Jones v. State Bd. of Educator Certification, 315 S.W.3d 237, 240

(Tex. App.—Austin 2010, pet. denied) (stating that, “[i]n suits against governmental

entities, a timely filed petition for judicial review is a statutory prerequisite to suit,

so that failure to comply deprives the trial court of jurisdiction”).

      Thus, stated another way, the Legislature has expressly declared that statutory

prerequisites to bringing suit are jurisdictional in cases relating to governmental

entities. See Tex. Gov’t. Code § 311.034. Based on this statute and the relevant

case law discussed above, filing and serving a lawsuit within the 60-day deadline is

a jurisdictional statutory prerequisite to maintaining a lawsuit against a

governmental entity. Failure to comply with this requirement deprives the trial court

of jurisdiction.

      Olguin argues that due diligence should excuse his failure to comply with the

60-day jurisdictional statutory prerequisite. Olguin Br. at 12-14. However, Olguin’s



                                            6
due diligence defense is not applicable on the issue of jurisdiction; a court either has

jurisdiction or it does not have jurisdiction. Equitable defenses based on due

diligence, such as tolling or the relation back doctrine, do not apply to jurisdictional

statutory prerequisites because the legislature has made the choice that a lawsuit

must be brought by a certain date for the court to have jurisdiction. See Little v. Tex.

Bd. of Law Exam’rs, 334 S.W.3d 860, 864 (Tex. App.—Austin 2011, no pet.)

(holding that “the tolling provision of [Tex. Civ. Prac. & Rem. Code] 16.064 is

inapplicable to a jurisdictional statutory prerequisite to suit against a governmental

agency”); Heart Hosp. IV, L.P. v. King, 116 S.W.3d 831, 836 (Tex. App.—Austin

2003, pet. denied) (holding that failure to comply with the 60-day deadline “does not

present a limitations issue, but rather a jurisdictional statutory prerequisite,” and

once the party “failed to comply with that statutory prerequisite, his cause could not

be saved by a tolling provision applicable only to statutes of limitations; the district

court simply did not have jurisdiction”). Put simply, jurisdiction cannot be obtained

by application of equitable defenses such as due diligence. See id.; cf. Wilmer-

Hutchins Ind. School Dist. v. Sullivan, 51 S.W.3d 293, 294 (Tex. 2001).

      At a hearing on HHSC’s Plea to the Jurisdiction in this case, the trial court

expressed concern regarding the absence of equitable defenses in this and other

lawsuits brought against governmental entities under the TCHRA. The Court in

Chatha addressed a similar concern as follows:



                                           7
      The dissent worries that under our holding, equitable defenses could
      potentially be urged against private employers but not against
      governmental entities. However, the dissent’s position invades the
      domain of the Legislature and cuts against the very nature of sovereign
      immunity. Because a governmental entity may challenge the denial of
      a plea to the jurisdiction in an interlocutory appeal, Tex. Civ. Prac. &
      Rem. Code § 51.104, the entity may effectively avoid the time and
      expense of litigating the merits of the case by first raising the statutory
      prerequisite issued under section 311.034. The potential absence of
      equitable defenses against governmental entities that retain their
      immunity is sovereign immunity’s most basic tenet.

Chatha, 381 S.W.3d at 515. Thus, the absence of equitable defenses is a legislative

issue concerning the waiver of sovereign immunity. See id.; see also Mission

Consol. Indep. Sch. Dist. v. Garcia, 253 S.W.3d 653, 659 (Tex. 2008) (recognizing

that the Legislature has consented to TCHRA suits against governmental entities

only to the extent the “procedures outlined in the statute have been met”). Moreover,

courts are to follow the guidance set forth in section 311.034 of the Texas

Government Code which provides that “[i]n 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 that waiver is

effected by clear and unambiguous language.” Tex. Gov’t Code § 311.034.

      In order to overcome HHSC’s sovereign immunity, Olguin was required

under section 21.254 to both file and serve his lawsuit within 60 days of receiving

his right to sue letter in order to satisfy the jurisdictional requirement to timely bring

suit. See Tex. Lab. Code § 21.254. Because the record is clear that Olguin did not



                                            8
satisfy this jurisdictional requirement, this Court should reverse the trial court’s

order denying HHSC’s plea to the jurisdiction.

                                     PRAYER

      WHEREFORE, PREMISES CONSIDERED, Appellant HHSC prays that this

Court reverse the trial court’s order denying its Plea to the Jurisdiction as to the

claims for discrimination and retaliation, and dismiss this matter for want of

jurisdiction. Appellant HHSC further prays for all other relief, in law and equity, to

which it may be justly entitled.

                                       Respectfully submitted,

                                       KEN PAXTON
                                       Attorney General of Texas

                                       JEFFREY C. MATEER
                                       First Assistant Attorney General

                                       BRANTLEY STARR
                                       Deputy First Assistant Attorney General

                                       JAMES E. DAVIS
                                       Deputy Attorney General for Civil Litigation

                                       ANGELA COLMENERO
                                       Chief, General Litigation Division

                                       /s/ Andrew B. Stephens
                                       ANDREW B. STEPHENS
                                       Texas Bar No. 24079396
                                       Assistant Attorney General
                                       General Litigation Division




                                          9
Office of the Attorney General
P.O. Box 12548, Capitol Station
Austin, Texas 78711-2548
Tel: (512) 463-2120
Fax: (512) 320-0667

ATTORNEYS FOR APPELLANT




  10
                     CERTIFICATE OF COMPLIANCE

      I hereby certify that the above and foregoing Appellant’s Brief has been

prepared in a proportionally spaced typeface using Microsoft Word in 14-point

Times New Roman font for text and 12-point Times New Roman font for footnotes,

and contains 2,296 words, as determined by the computer software’s word-count

function, excluding the portions of the brief exempted by Texas Rule of Appellate

Procedure TRAP 9.4(i)(1).

                                        /s/ Andrew B. Stephens
                                        ANDREW B. STEPHENS
                                        Assistant Attorney General




                                       11
                         CERTIFICATE OF SERVICE


      I hereby certify that a true and correct copy of the above and foregoing

Appellant’s Brief has been served on Appellee’s counsel by First Class U.S. Mail,

electronic mail, facsimile, or hand delivery on this the 7th day of October, 2016.


                                          /s/ Andrew B. Stephens
                                          ANDREW B. STEPHENS
                                          Assistant Attorney General

Dominic Audino
THE LAW OFFICES OF DOMINIC AUDINO
9442 N. Capitol of Texas Hwy, Bldg. 1, Ste. 500
Austin, Texas 78759
Tel: (512) 343-3638
Fax: (512) 252-2850

ATTORNEYS FOR APPELLEE




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