      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN



                                           NO. 03-02-00196-CV




           Heart Hospital IV, L.P. and Texas Workforce Commission, Appellants

                                                   v.

                                     Charles A. King, Appellee




    FROM THE DISTRICT COURT OF BASTROP COUNTY, 21ST JUDICIAL DISTRICT
          NO. 23,894, HONORABLE JOHN L. PLACKE, JUDGE PRESIDING



                                DISSENTING OPINION


                The narrow issue we are asked to decide today is whether King perfected his suit for

judicial review by filing a lawsuit with a district court, albeit in the wrong county, within the

statutory time limit, as directed by the Texas Labor Code. Because I would answer this question in

the affirmative, I respectfully dissent.

                The Commission argues that because King did not seek review of the Commission’s

decision in Bastrop County until July 9, more than three months after the Commission decision

became final, the trial court had no jurisdiction to consider King’s claim. According to the

allegations in King’s original petition for judicial review, which we accept as true, see Rylander v.
Caldwell, 23 S.W.3d 132, 135 (Tex. App.—Austin 2000, no pet.), King did in fact seek judicial

review of the Commission’s decision within fourteen days after it became final. In his petition, he

states that he initially filed a petition for judicial review on March 30, 2001; however, he filed that

petition in Travis County rather than Bastrop County. We must therefore determine whether King’s

filing of his petition for judicial review within the fourteen-day deadline was sufficient to perfect his

appeal even though he filed the petition in the wrong county. In other words, we must determine

whether the statute specifying the county in which one must file suit for judicial review is

jurisdictional in nature or presents a question of venue.

                The relevant statute provides:


        An action under this subchapter must be filed:

        (1) in the county of the claimant’s residence; or

        (2) if the claimant is not a resident of this state, in:

             (A) Travis County;

             (B) the county in this state in which the claimant’s last employer has its
                 principal place of business; or

             (C) the county of the claimant’s last residence in this state.


Tex. Lab. Code Ann. § 212.204 (West 1996).

                The supreme court in Dubai Petroleum Co. v. Kazi, 12 S.W.3d 71 (Tex. 2000),

overruled the longstanding doctrine that “where the cause of action and remedy for its enforcement

are derived not from common law but from statute,” there is no presumption of jurisdiction in the


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district court and a plaintiff’s failure to establish a statutory prerequisite deprives the court of

jurisdiction. Id. at 75-76 (quoting and overruling Mingus v. Wadley, 285 S.W. 1084 (Tex. 1926));

see also Hartford Underwriters Ins. Co. v. Hafley, 96 S.W.3d 469, 472 (Tex. App.—Austin 2002,

no pet.). The Dubai court reasoned that the Mingus rule had “resulting practical difficulties” that

suggest “underlying logical flaws.” Dubai, 12 S.W.3d at 76. According to the court, the old rule

made judgments vulnerable to collateral attacks on their validity where the district court or the

parties made a good faith mistake in interpreting the law. Id. The court criticized the Mingus rule

for wrongly assuming that “something is functionally different about a non-common law proceeding,

and that, therefore courts are justified in regarding such proceedings in a harsher light.” Id. (quoting

Dobbs, Trial Court Error as an Excess of Jurisdiction, 43 Tex. L. Rev. 854, 878-79 (1965)). Thus,

the court “overrule[d] Mingus to the extent that it characterized the plaintiff’s failure to establish a

statutory prerequisite as jurisdictional.” Id.

                Statutory prerequisites generally are no longer jurisdictional. We presume all claims

“fall within the jurisdiction of the district court unless the Legislature or Congress has provided that

they must be heard elsewhere.” Id. at 75. This Court has distinguished “statutory prerequisites”

from those matters that are “traditionally and undoubtedly elements of subject-matter jurisdiction.”

Sierra Club v. Texas Natural Res. Conservation Comm’n, 26 S.W.3d 684, 687 (Tex. App.—Austin

2000), aff’d on other grounds, 70 S.W.3d 809 (Tex. 2002). We must look to the statute itself to

determine whether it is jurisdictional. Hafley, 96 S.W.3d at 473.

                Unlike the statute at issue in Hafley, section 212.204 of the labor code is not

designated as a venue provision, nor is it expressly described as jurisdictional. The language of the

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statute, however, is instructive. Depending on the plaintiff’s residence, the statute permits the

plaintiff to choose among several courts in filing his claim for judicial review. Tex. Lab. Code Ann.

§ 212.204. The statute does not define, enlarge, or restrict the scope of causes a specific court may

hear or the substantive power of the court to award relief. See Hafley, 96 S.W.3d at 473; Sierra

Club, 26 S.W.3d at 688. Nor does the statute prohibit certain district courts from exercising

jurisdiction over appeals from the Commission’s decision. See Hafley, 96 S.W.3d at 473. To the

contrary, any district court would have jurisdiction over a suit of this kind; the statute merely

specifies the factors governing a plaintiff’s choice among several courts to maintain the suit for

judicial review. When a statutory prerequisite affects only the venue in which a party may file his

claim without substantively affecting the types of claims the court may consider or the relief it may

award, the statutory prerequisite is not jurisdictional. See Kshatrya v. Texas Workforce Comm’n,

97 S.W.3d 825, 831 (Tex. App.—Dallas 2003, no pet.); Hafley, 96 S.W.3d at 473; Sierra Club, 26

S.W.3d at 688; see also Brodhead v. Dodgin, 824 S.W.2d 616, 619 (Tex. App.—Austin 1991, writ

denied) (filing error not jurisdictionally fatal); Whitson v. Harris, 792 S.W.2d 206, 209 (Tex.

App.—Austin 1990, writ denied) (filing of lawsuit in improper venue did not divest trial court of

jurisdiction). In contrast, this Court has held that failure to exhaust administrative remedies is

jurisdictional because every trial court is restricted from hearing those cases in which the plaintiff

has failed to exhaust all administrative remedies; thus, failure to exhaust administrative remedies

substantively affects the types of claims the court may consider. Hill v. Board of Trs. of the Ret. Sys.,

40 S.W.3d 676, 679 (Tex. App.—Austin 2001, no pet.). Because section 212.204 limits a plaintiff’s

choice regarding where he may physically file suit but does not restrict the types of claims the trial

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court may consider, I would hold that section 212.204 addresses venue rather than subject-matter

jurisdiction.

                 Moreover, to hold that filing one’s petition for judicial review in the proper court is

a jurisdictional prerequisite, as the majority does, presents the very risk that the Dubai court warned

about, that is, that the trial court’s final judgment may be vulnerable to collateral attack. See Dubai,

12 S.W.3d at 76. If, for instance, King had never voluntarily dismissed his Travis County suit for

judicial review and the Commission had never filed a plea to the jurisdiction or in any way

challenged the venue, King’s suit would likely have been tried and resulted in a final judgment.

Applying the majority’s analysis, if the Commission were dissatisfied with that judgment, it could

then collaterally attack the judgment arguing that the Travis County court was without jurisdiction

to consider King’s suit for judicial review. This is the exact situation that the Dubai court sought

to avoid. Accordingly, I would hold that King perfected his appeal for judicial review by the original

filing of suit in district court.

                 King did in fact comply with the fourteen-day deadline by filing his petition on March

30 in Travis County; however, he did not comply with section 212.204, which addresses venue. I

recognize that King voluntarily dismissed his Travis County suit for judicial review and refiled it in

Bastrop County. That issue, however, is not before us. The only jurisdictional issue raised by the

Commission’s plea to the jurisdiction was whether King filed his petition within the fourteen-day

deadline. By filing his petition within the statutory fourteen-day time frame, albeit in the wrong

county, I would hold that King satisfied the jurisdictional requirements to perfect his appeal of the




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Commission’s decision. Accordingly, I would overrule appellants’ sole issue and affirm the trial

court’s denial of the Commission’s plea to the jurisdiction.




                                              Mack Kidd, Justice

Before Justices Kidd, Patterson and Puryear

Filed: August 29, 2003




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