     Case: 12-40493     Document: 00512321768    Page: 1   Date Filed: 07/26/2013




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                 Fifth Circuit

                                                                    FILED
                                                                   July 26, 2013

                                  No. 12-40493                     Lyle W. Cayce
                                                                        Clerk

DOUG MORGAN; ROBIN MORGAN; JIM SHELL; SUNNY SHELL;
SHERRIE VERSHER; CHRISTINE WADE,

                                            Plaintiffs-Appellees
v.

PLANO INDEPENDENT SCHOOL DISTRICT,

                                            Defendant-Appellant



                      Appeal from the United States District
                         for the Eastern District of Texas


Before KING, DAVIS, and ELROD, Circuit Judges.
W. EUGENE DAVIS, Circuit Judge.
      In this appeal, Plano Independent School District (“PISD”) argues that the
Texas Religious Freedom Restoration Act’s (“TRFRA”) pre-suit notice
requirement is a jurisdictional prerequisite to suit and that because Plaintiffs
did not strictly comply by sending a letter certified mail, return receipt
requested, PISD’s governmental immunity has not been waived. Finding that
compliance with the pre-suit notice requirement is jurisdictional under Texas
law and that the district court erred in denying PISD’s Motion for Partial
Summary Judgment against the Plaintiffs, we REVERSE.
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                                       No. 12-40493

                                              I.
       The facts in this case are well known to this court,1 and while this appeal
presents a very narrow legal question that does not turn on those underlying
facts, a brief recitation is necessary to understand the context of the parties’
arguments.
       Plaintiffs in this case are the parents of four former elementary school
students (“the Morgans”)2 in the PISD who sued the school district over an
alleged violation of First Amendment rights. Plaintiffs complained that the
Morgans’ third-grade son Jonathan was prevented from distributing a “candy
cane ink pen” with a laminated card containing a religious message about the
legend of the candy cane and its Christian origins at a winter break party on
December 19, 2003.
       Doug Morgan (father of Jonathan Morgan) prior to the December 2003
winter party, wrote an e-mail to Carole Greisdorf, assistant superintendent of
the PISD, to investigate PISD’s policies and expressing concern about the
policies and regulations affecting the “[r]eligious expression of our children.”
Greisdorf responded that concerns about how religious expression is handled
should first be addressed with the school principal. Doug, and his wife, Robin
Morgan, then met personally with Jonathan’s elementary school principal, Lynn
Swanson, on December 4, 2003. During that meeting Principal Swanson
informed the Morgans that it was the practice, policy, and custom of the PISD
that religious materials could not be distributed while on school property

       1
          Indeed, this is the third appeal of this matter to the Fifth Circuit. Previously, this
court published an opinion concerning the facial constitutionality of the amended PISD speech
policies, Morgan v. Plano Indep. Sch. Dist., 589 F.3d 740 (5th Cir. 2009), and an opinion
concerning qualified immunity for certain government officials regarding religious speech of
elementary school students on public school campuses, Morgan v. Swanson, 659 F.3d 359 (5th
Cir. 2011) (en banc).
       2
        While plaintiffs are the Morgan, Shell, Versher, and Wade plaintiffs, the Morgans are
the plaintiffs applicable to the matter at hand.

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                                  No. 12-40493

because of the religious viewpoint of the materials and that only secular
materials and gifts could be distributed or displayed at the party. On December
17, 2003, Morgan again e-mailed Greisdorf and expressed his “strong desire”
that his son be allowed to engage in religious expression by distributing the
candy canes at the party. That same day Greisdorf responded to this e-mail by
confirming that Principal Swanson was “exactly right in her interpretation of the
Plano ISD policies.”
      Later, on December 17, 2003, the Morgans, through their attorney, sent
a demand letter entitled “Unconstitutional Violation of Right to Seasonal
Religious Expression” to Principal Swanson, Superintendent Douglas Otto,
Deputy Superintendent Danny Modisette, and all the members of the PISD
Board of Trustees. The letter complained that the PISD and its policies, customs,
and procedures were interfering with Jonathan Morgan’s right to religious
expression and contended that Morgan had a right to express his religious faith
through the distribution of personal gifts to fellow students. The letter also
included a “demand,” requesting notification that Jonathan and students would
be free to distribute their gifts to fellow students. It concluded that “[u]nless we
hear from you within this time frame, we will seek redress in federal court.” As
the party was two days away at that point, the letter was delivered to Principal
Swanson via fax and U.S. mail, and the letter was e-mailed to all others. It is
undisputed that the letter was not sent by certified mail, return receipt
requested. On December 18, 2003, PISD’s attorney responded to the letter and
informed the Morgans and their attorney that Jonathan could not distribute
candy canes in the classroom or hallways in conjunction with the holiday party.
      The families filed the present lawsuit against the PISD on December 15,
2004, prior to the next scheduled winter break party, which was to occur on
Friday, December 17, 2004. The original and amended complaints contain six
counts: violation of freedom of speech under the federal and state constitutions,

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violation of equal protection rights, free exercise of religion and establishment
clause, intentional infliction of emotional distress, and violation of religious
freedom protected by the TRFRA. Plaintiffs sought a temporary restraining
order (“TRO”), preliminary and permanent injunctions, a declaratory judgment,
nominal damages, punitive damages, and attorneys’ fees and costs against PISD.
On December 16, 2004, the district court granted the request for a TRO and
enjoined the school district and school officials from interfering with or
prohibiting Plaintiffs and other students from distributing religious viewpoint
gifts at the 2004 winter break party or from committing any acts calculated to
cause students to feel uncomfortable because of a student’s exercise of religion.
       After six years of litigation, on May 24, 2011, PISD filed a Motion for
Partial Summary Judgment on (1) Plaintiffs’ Texas Constitution claims and (2)
Plaintiffs’ TRFRA claims. On March 30, 2012, the district court granted partial
summary judgment on the Texas Constitution claims and found that the
Versher, Shell, and Wade Plaintiffs could not sue under the TRFRA because they
failed to give proper notice prior to filing suit; but the court denied partial
summary judgment as to the Morgans, finding that the Morgan Plaintiffs’ notice
was sufficient and that their TRFRA suit was not barred. This left only the
Morgans’ TRFRA as-applied claims as to the 2004 policy pending.3 The present
appeal is limited to the Morgans’ TRFRA claims, more particularly, PISD’s
contention that the written notice sent, received, and responded to by PISD is




       3
         At issue was the PISD’s 2004 policy as well as its 2005 policy (PISD’s amended
student distribution policy that was less restrictive than its predecessor). The district court
dismissed Plaintiffs’ TRFRA claims regarding the 2005 policy, both facially and as-applied,
and also dismissed the Plaintiffs’ TRFRA claim regarding the facial constitutionality of the
2004 policy.
       This summary judgment ruling does not concern the merits of the various as-applied
federal constitutional challenges to the PISD’s prior student distribution policy, which remain
pending.

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not sufficient notice so as to waive governmental immunity because the manner
of delivery was not by certified mail, return receipt requested.
                                               II.
       The parties first dispute whether the district court’s order denying
governmental immunity from suit is an immediately appealable order. In
Shanks v. AlliedSignal, Inc., this court stated that “[a]lthough appellate
jurisdiction under § 1291 is a matter of federal law, we look to state law to
determine whether the basis of [a defendant’s] claim is properly characterized
as an immunity from suit or merely a defense to liability.” 169 F.3d 988, 992 (5th
Cir. 1999). Because it is well-established under Texas law that PISD’s
governmental immunity is not a mere defense to suit but rather is complete
immunity from suit, this court has jurisdiction.4 And because governmental
immunity from suit defeats a trial court’s jurisdiction, whether a trial court has
jurisdiction is a question of law subject to de novo review. See Briseno v.
Ashcroft, 291 F.3d 377, 379 (5th Cir. 2002); Tex. Dep’t of Transp. v. Jones, 8
S.W.3d 636, 638 (Tex. 1999).
                                               III.
       The TRFRA (codified at TEX. CIV. PRAC. & REM. CODE §§
110.001-110.012) provides that “a government agency may not substantially
burden a person’s free exercise of religion” unless the burden is in “furtherance



       4
         See, e.g., Ben Bolt-Palito Blanco Consol. Indep. Sch. Dist. v. Tex. Political Subdivisions
Prop./Cas. Joint Self-Ins. Fund, 212 S.W.3d 320, 324 (Tex. 2006) (“[The] doctrine of
governmental immunity . . . protects political subdivisions of the State, including counties,
cities, and school districts. A political subdivision enjoys governmental immunity from suit to
the extent that immunity has not been abrogated by the Legislature.” (citation omitted));
Tooke v. City of Mexia, 197 S.W.3d 325, 332 (Tex. 2006) (“In Texas, governmental immunity
has two components: immunity from liability, which bars enforcement of a judgment against
a governmental entity, and immunity from suit, which bars suit against the entity altogether.”
(footnote omitted)); see also TEX. CIV. PRAC. & REM. CODE § 51.014(a)(8) (“A person may appeal
from an interlocutory order . . . that . . . grants or denies a plea to the jurisdiction by a
governmental unit . . . .”).

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of a compelling governmental interest” and is “the least restrictive means of
furthering that interest.” § 110.003. Under section 110.008: “Subject to Section
110.006, sovereign immunity to suit and from liability is waived and abolished
to the extent of liability created by Section 110.005, and a claimant may sue a
government agency for damages allowed by that section.”5 (emphasis added).
       Section 110.006, in turn, provides:
       (a) A person may not bring an action to assert a claim under this
       chapter unless, 60 days before bringing the action, the person gives
       written notice to the government agency by certified mail, return
       receipt requested:
              (1) that the person’s free exercise of religion is substantially
              burdened by an exercise of the government agency’s
              governmental authority;
              (2) of the particular act or refusal to act that is burdened; and
              (3) of the manner in which the exercise of governmental
              authority burdens the act or refusal to act.
       (b) Notwithstanding Subsection (a), a claimant may, within the
       60-day period established by Subsection (a), bring an action for
       declaratory or injunctive relief and associated attorney’s fees, court
       costs, and other reasonable expenses if:
              (1) the exercise of governmental authority that threatens to
              substantially burden the person’s free exercise of religion is
              imminent6 . . . .


       5
         Section 110.005 delineates the remedies an individual may recover including
declaratory relief, injunctive relief, reasonable attorney’s fees, and compensatory damages not
to exceed $10,000.
       6
          The Morgans first contend that they did not need to comply with the notice
requirements because the TRFRA explicitly waives the notice requirements when the lawsuit
is for declaratory or injunctive relief and the threat of the burden to the plaintiff’s religious
freedom is imminent. See § 110.006(b). The Morgans point to the fact that they actually
obtained a TRO on December 16, 2004, which enjoined the school district and school officials
from prohibiting student distribution of religious viewpoint gifts. This argument is unavailing,
for the statute does not purport to waive the pre-suit notice requirement if a threat to religious
expression is imminent, it just allows one to bring suit without having to wait 60 days. And
there is also no “imminence” here as the Morgans argue: the issue on which this suit is based
is the 2003 party in which Jonathan was prohibited from distributing his religious message,
but the Morgans did not file for a TRO prior to the 2003 party (the subject of their 2003
demand letter) and instead waited to file their TRO application until immediately before the

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                      ....
     (c) A government agency that receives a notice under Subsection (a)
     may remedy the substantial burden on the person’s free exercise of
     religion.
(emphasis added).
       PISD’s argument is straightforward: Section 110.006 requires providing
“written notice to the government agency by certified mail, return receipt
requested,” 60 days before bringing an action under the TRFRA. PISD is a public
school district and, absent a waiver effected by clear and unambiguous language,
PISD enjoys governmental immunity from suit and liability.7 See Wichita Falls
State Hosp. v. Taylor, 106 S.W.3d 692, 694 & n.3, 697 (Tex. 2003); Bonillas v.
Harlandale Indep. Sch. Dist., 832 F. Supp. 2d 729, 735 (W.D. Tex. 2011). PISD
cites numerous cases standing for the proposition that statutory waivers of
immunity (and statutory language in general) must be strictly construed by the
courts and applied “as written.” City of Hous. v. Jackson, 192 S.W.3d 764, 770
(Tex. 2006).8 Thus, PISD argues that because the Morgans did not strictly


next year’s 2004 party.
       7
         “Sovereign immunity and . . . governmental immunity . . . exist to protect the State
and its political subdivisions from lawsuits and liability for money damages. Such lawsuits
‘hamper governmental functions by requiring tax resources to be used for defending lawsuits
and paying judgments rather than using those resources for their intended purposes.’” Mission
Consol. Indep. Sch. Dist. v. Garcia, 253 S.W.3d 653, 655 (Tex. 2008) (citation omitted) (quoting
Reata Constr. Corp. v. City of Dallas, 197 S.W.3d 371, 375 (Tex. 2006)). Furthermore,
       Courts often use the terms sovereign immunity and governmental immunity
       interchangeably. However, they involve two distinct concepts. Sovereign
       immunity refers to the State’s immunity from suit and liability. In addition to
       protecting the State from liability, it also protects the various divisions of state
       government, including agencies, boards, hospitals, and universities.
       Governmental immunity, on the other hand, protects political subdivisions of
       the State, including counties, cities, and school districts.
 Wichita Falls, 106 S.W.3d at 694 n.3 (citations omitted).
       8
         See Tex. Dep’t. of Transp. v. York, 284 S.W.3d 844, 846 (Tex. 2009) (“Legislative
consent to waive sovereign immunity by statute must be by ‘clear and unambiguous language,’
TEX. GOV’T CODE § 311.034, and suit can then be brought ‘only in the manner indicated by that
consent.’” (quoting Wichita Falls, 106 S.W.3d at 694)); Mission Consol. Ind. Sch. Dist., 253

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comply with the statute, i.e., by sending pre-suit notice certified mail, return
receipt requested, PISD has not waived its immunity.
       Although the statute requires pre-suit notice via certified mail, return
receipt requested,“just because a statutory requirement is mandatory does not
mean that compliance with it is jurisdictional.” Albertson’s, Inc. v. Sinclair, 984
S.W.2d 958, 961 (Tex.1999). In construing the TRFRA, the question for this court
is whether the pre-suit notice requirement is jurisdictional—that is, a condition
of the TRFRA’s waiver of immunity from suit—or not. Of course, if the pre-suit
notice requirement is jurisdictional, the “‘failure of a jurisdictional requirement
deprives the court of the power to act (other than to determine that it has no
jurisdiction), and ever to have acted, as a matter of law.’” City of DeSoto v. White,
288 S.W.3d 389, 393 (Tex. 2009) (quoting Univ. of Tex. Sw. Med. Ctr. at Dallas
v. Loutzenhiser, 140 S.W.3d 351, 359 (Tex. 2004), superseded by statute, TEX
GOV’T CODE § 311.034).
       To argue that the pre-suit notice provision is jurisdictional, PISD points
to section 311.034 of the Texas Government Code (“Texas Code Construction
Act”), which reads: “Statutory prerequisites to a suit, including the provision of
notice, are jurisdictional requirements in all suits against a governmental



S.W.3d at 655 (“Because the Legislature is better suited to balance the conflicting policy issues
associated with waiving immunity, we look to pertinent legislative enactments to determine
the extent to which immunity has been voluntarily relinquished.”); Wichita Falls, 106 S.W.3d
at 697 (“[W]hen construing a statute that purportedly waives sovereign immunity, we
generally resolve ambiguities by retaining immunity.”); see also Tex. Lottery Comm’n v. First
State Bank of DeQueen, 325 S.W.3d 628, 635 (Tex. 2010) (“We presume the Legislature
selected language in a statute with care and that every word or phrase was used with a
purpose in mind.”); City of San Antonio v. Hartman, 201 S.W.3d 667, 673 (Tex. 2006) (“We
must construe this statute according to what it says, not according to what we think it should
have said.”); St. Luke’s Episcopal Hosp. v. Agbor, 952 S.W.2d 503, 505 (Tex. 1997) (“‘Courts
must take statutes as they find them. . . . They are not responsible for omissions in
legislation.’” (quoting RepublicBank Dallas, N.A. v. Interkal, Inc., 691 S.W.2d 605, 607 (Tex.
1985)); Cameron v. Terrell & Garrett, Inc., 618 S.W.2d 535, 540 (Tex. 1981) (“Likewise, we
believe every word excluded from a statute must also be presumed to have been excluded for
a purpose.”).

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entity.” TEX GOV’T CODE § 311.034. While section 311.034’s language is explicit
that pre-suit notice requirements in a suit against a governmental entity are
jurisdictional,9 this language was not added to the statute until 2005, after the
Morgans filed suit.10 Thus the Morgans argue that section 311.034’s language
should not apply.
       Although it may have been unclear before 2010 whether section 311.034’s
language could apply to a pending suit, the Texas Supreme Court’s decision in
University of Texas Southwestern Medical Center at Dallas v. Estate of
Arancibia, 324 S.W.3d 544 (Tex. 2010), removes all doubt. In Arancibia,
Southwestern Medical Center filed a plea to the jurisdiction because it
contended it had no pre-suit notice of Arancibia’s claim under the Texas Tort
Claims Act. Id. at 547. Arancibia’s suit, like the case at hand, was filed before
the 2005 amendment to section 311.034. Id. The court stated that a “prohibition
against retroactive application of laws does not apply to procedural, remedial,
or jurisdictional statutes” and that a statute “does not operate retroactively
merely because it is applied in a case arising from conduct predating the
enactment.” Id. at 547-48. Specifically construing section 311.034, the court held
that “[s]tatutes—like section 311.034—that do not deprive the parties of a
substantive right and ‘speak to the power of the court rather than to the rights
or obligations of the parties’ may be applied to cases pending at the time of
enactment.” Id. at 548 (quoting Landgraf v. USI Film Prods., 511 U.S. 244, 274


       9
         See also Colquitt v. Brazoria Cnty., 324 S.W.3d 539, 543 (Tex. 2010) (“[W]e agree that
section 311.034 of the Code Construction Act makes compliance with the notice provisions
jurisdictional . . . .”).
       10
          In University of Texas Southwestern Medical Center at Dallas v. Loutzenhiser, 140
S.W.3d 351, 364 (Tex. 2004), the Texas Supreme Court concluded that the notice provision in
the Torts Claim Act, while mandatory, was not a condition of the Act’s waiver of immunity.
After the court’s decision in Loutzenhiser, the Legislature amended section 311.034 of the Code
Construction Act to explicitly make notice jurisdictional. See Act of May 25, 2005, 79th Leg.,
R.S. ch. 1150, 2005 Tex. Gen. Laws 3783. The amendment took effect September 1, 2005.

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(1994)). Thus the court concluded that section 311.034’s amended language
applies to pending cases and that a “purported failure to provide notice would
deprive the trial court of jurisdiction, an issue that may be raised on
interlocutory appeal.” Id.
       Even so, the Morgans argue that there is no explicit language in the
TRFRA that provides that the pre-suit notice is strictly required or that the
provision is meant to be jurisdictional. The Morgans contend that the only
purpose of the notice provision in the TRFRA is to provide the governmental
agency an opportunity to “remedy the substantial burden on the person’s free
exercise of religion,” such that a “person with respect to whom a substantial
burden on the person’s free exercise of religion has been cured by a remedy
implemented under this section may not bring an action under Section 110.005.”
TEX . CIV. PRAC. & REM. CODE § 110.006(c),(e). Thus the Morgans argue that
based on the facts in the instant case—where PISD’s attorney actually
responded to the Morgans’ faxed demand letter—substantial compliance will
suffice when a government agency has actual notice that an individual’s
religious freedom is burdened.
       Yet PISD points out that Texas lawmakers easily could have included in
the TRFRA’s waiver of immunity provisions that actual notice suffices, as they
did in the Texas Tort Claims Act,11 and that the legislature presumably opted
against actual notice on purpose; thus Texas lawmakers required strict
compliance, not substantial compliance.
       The Morgans also rely, as did the magistrate judge and in turn the district
court, on Roccaforte v. Jefferson County, 341 S.W.3d 919 (Tex. 2011), for the
proposition that substantial compliance with a notice provision suffices. In
Roccaforte, the plaintiff failed to strictly comply with Texas Local Government

       11
         See TEX. CIV. PRAC. & REM. CODE § 101.101(c) (stating that the notice
requirements of that Act “do not apply if the governmental unit has actual notice” of injury).

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Code 89.0041, which provides that when filing suit against a county, “written
notice must be delivered by certified or registered mail by the 30th business day
after suit is filed.”12 Id. at 925 (emphasis added) (quoting TEX. LOC. GOV’T CODE
§ 89.0041(b)). The Roccaforte plaintiff provided notice “by personal service of
process, rather than registered or certified mail as the statute contemplates.” Id.
at 920. The Texas Supreme Court held that compliance with the notice
requirements under section 89.0041 was not jurisdictional because, importantly,
“Section 311.034 applies to prerequisites to suit, not notice requirements that can
be satisfied only after suit is filed.” Id. at 925 (emphasis in original).13 Because
Roccaforte plainly dealt with a form of post-suit notice and section 311.034’s
language clearly deals with pre-suit notice, we are convinced that the magistrate
judge’s reliance on Roccaforte is misplaced.
       The Texas Supreme Court’s decision in Prairie View A&M University v.
Chatha, 381 S.W.3d 500 (Tex. 2012), supports our view that Roccaforte does not
control this case. In interpreting section 311.034’s language that “[s]tatutory
prerequisites to a suit, including the provision of notice, are jurisdictional
requirements in all suits against a governmental entity,” the Texas high court
found that the term “statutory prerequisite” necessarily has three components.
First, “in order to fall within the ambit of section 311.034, a prerequisite must
be found in the relevant statutory language.” Id. at 512. Second, “the
prerequisite must be a requirement.” Id. And finally,


       12
          The written notice was to contain the style and cause number of the suit, the court
in which the suit was filed, the date on which the suit was filed, and the name of the person
filing suit. TEX. LOC. GOV’T CODE § 89.0041(b)(1)-(4).
       13
          See also University of Texas Health Science Center at San Antonio v. Webber-Eells,
327 S.W.3d 233, 239 (Tex. App. 2010), wherein the plaintiff tried to argue that substantially
complying with a notice requirement was sufficient—and cited post-suit notice cases standing
for this proposition—the court stated that in those instances it was “[o]nly after determining
that the statute was not jurisdictional did the courts determine that substantial compliance
with the statute was sufficient.”

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       the term “pre” indicates the requirement must be met before the
       lawsuit is filed. See Roccaforte v. Jefferson Cnty., 341 S.W.3d 919,
       925 (Tex. 2011) (holding that post-suit notice requirement was not
       jurisdictional, even in light of section 311.034, because post-suit
       notice is not a “prerequisite” to suit). Thus, according to the plain
       language of section 311.034, the term “statutory prerequisite” refers
       to statutory provisions that are mandatory and must be
       accomplished prior to filing suit.
Id. Because the Texas Supreme Court concluded that section 311.034 does not
apply to post-suit notice requirements and explicitly distinguished Roccaforte as
a case that involved post-suit notice, neither Roccaforte’s conclusion nor analysis
controls this case. Thus, the three statutory prerequisites are met: the TRFRA
imposes statutory prerequisites to filing suit, the TRFRA contains language that
is mandatory, and the pre-suit requirement must be accomplished prior to filing
suit.14 Thus, section 311.034 is triggered and the pre-suit notice requirements
are jurisdictional.
       The Morgans next argue that by its language section 311.034 applies only
to sovereign immunity but does not apply to the governmental immunity that is
at issue here.15 In Travis Central Appraisal District v. Norman, 342 S.W.3d 54



       14
          “A person may not bring an action to assert a claim under this chapter unless, 60
days before bringing the action, the person gives written notice to the government agency by
certified mail, return receipt requested[.]” TEX. CIV. PRAC. & REM. CODE § 110.006
(emphasis added).
       15
        Texas Government Code § 311.034 provides, in full:
      311.034. Waiver of Sovereign Immunity
      In 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 the waiver is effected by clear and unambiguous
      language. In a statute, the use of “person,” as defined by Section 311.005 to
      include governmental entities, does not indicate legislative intent to waive
      sovereign immunity unless the context of the statute indicates no other
      reasonable construction. Statutory prerequisites to a suit, including the
      provision of notice, are jurisdictional requirements in all suits against a
      governmental entity.
(emphasis added).

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(Tex. 2011), the Texas Supreme Court stated: “Sovereign and governmental
immunity are . . . related . . . concepts that differ only in scope. Their similarity
sometimes causes the two terms to be used interchangeably.” Id. at 58. In
Travis, the court construed Texas Labor Code section 504.053’s provision which
read “[n]othing in this chapter waives sovereign immunity or creates a new
cause of action.” Id. at 57. Even though the provision “spoke to sovereign
immunity rather than governmental immunity,” the court concluded that
Chapter 504 of the Labor Code applies to political subdivisions and held that the
“[sovereign] immunity referenced in the . . . no-waiver provision refers to the
immunity applicable to such subdivisions [i.e., governmental immunity].” Id. at
57-58.16
       The Morgans also cite Barr v. City of Sinton, 295 S.W.3d 287 (Tex. 2009),
where the Texas Supreme Court interpreted the TRFRA in the context of a
zoning ordinance that precluded the use of religious halfway homes. In Barr the
court, in a footnote, stated that while the plaintiff’s attorney sent a letter to the
City, the “trial court found that ‘[p]laintiffs failed to give notice as required by
the Religious Freedom Act’, [but] the City does not argue that here.” Id. at 292


       16
          See also City of Dallas v. Carbajal, 324 S.W.3d 537, 537-38 (Tex. 2010) (stating that
under section 311.034 the “provision of notice is a jurisdictional requirement in all suits
against a governmental unit” and applying section 311.034 to a city, which enjoys
governmental rather than sovereign immunity); TEX. GOV’T CODE § 2007.004 (using the terms
“governmental immunity” and “sovereign immunity” interchangeably); City of Hous. v.
Williams, 353 S.W.3d 128, 134-35 (Tex. 2011) (statute which used the term “sovereign
immunity” waives a governmental entity’s, including a school district’s, immunity from suit).
        The Morgans also rely on language from City of DeSoto v. White, 288 S.W.3d 389 (Tex.
2009), in which the court stated: “Section 311.034 specifically addresses waivers of sovereign
immunity, an issue not implicated here.” Id. at 396 (emphasis added). Yet we do not believe
the court’s statement was meant to limit section 311.034 to sovereign immunity specifically,
as the Morgans argue. At issue in DeSoto was a notice provision by which the City was
required to give notice to a suspended police officer that if the officer appealed to a hearing
examiner, his ability to seek further review in district court would be limited; but the City
failed to do so. Id. at 391. While the police officer argued that section 311.034 applied to the
City’s failure to provide him with notice of this limitation, the court concluded that section
311.034 simply had no application on those facts. See id. 395-96.

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                                       No. 12-40493

n.8. Admittedly, this would undercut the conclusion that compliance with the
pre-suit notice provision is jurisdictional, for if it were the court would have
dismissed that case for lack of jurisdiction. Even so, Barr can be reconciled with
our conclusion that the pre-suit notice is jurisdictional: the opinion provides no
further discussion or analysis as to why the plaintiff’s notice was insufficient.
Additionally, Barr was decided prior to Arancibia so the court could not yet rely
on Arancibia’s guidance that the amended language of section 311.034 is meant
to apply to cases pending at the time of its enactment.17
       In summary, section 110.006 of the TRFRA requires pre-suit notice in the
form of certified mail, return receipt requested, 60 days prior to filing suit;
section 311.034 provides that statutory prerequisites to a suit, including the
provision of notice, are jurisdictional requirements in all suits against a
governmental entity; and Arancibia holds that section 311.034 applies to cases
pending at the time of its enactment.18 While Plaintiffs request that we certify
to the Texas Supreme Court whether this pre-suit notice requirement is
jurisdictional, we find the statute clear and are satisfied that the Texas Supreme
Court would apply the statute as written. Because it is undisputed that the
Morgans’ demand letter did not comply with the jurisdictional pre-suit notice
requirements, PISD’s governmental immunity is not waived.19


       17
           The Morgans also cite A.A. ex rel. Betenbaugh v. Needville Independent School
District, 611 F.3d 248 (5th Cir. 2010) because it appears that the plaintiffs in Needville made
their TRFRA claims known through e-mails and face-to-face meetings, as the Morgans did
here. See id. at 254-55. Yet in Needville there is simply no discussion in the opinion as to
whether or not the plaintiffs complied with the TRFRA’s notice provision. See id. at 257. Thus
this is not particularly helpful to the Morgans because without any discussion on this point
there is simply no reason to assume the Needvilles did not comply with the notice provisions
of the statute.
       18
         See TEX. CIV. PRAC. & REM. CODE § 110.006; TEX. GOV’T CODE § 311.034;
Arancibia, 324 S.W.3d 544 (Tex. 2010).
       19
        Because we conclude that the noncompliance with the TRFRA’s pre-suit notice
requirements is a jurisdictional bar to suit, we need not address PISD’s argument that the

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                                    No. 12-40493

                                         IV.
      For the reasons stated above, we REVERSE the judgment of the district
court and dismiss Plaintiffs’ TRFRA claim for lack of jurisdiction.




contents of the Morgans’ letter did not conform to the requirements of the TRFRA or the
Morgans’ contention that PISD waived any argument that the TRFRA pre-suit notice was
insufficient by waiting over six years to raise it.

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                                       No. 12-40493

JENNIFER WALKER ELROD, Circuit Judge, dissenting:
       This appeal presents an important and novel issue of Texas law: Whether
the Texas Religious Freedom Restoration Act’s (“TRFRA”) notice-by-certified-
mail requirement is jurisdictional, such that the Morgans’ service of notice by fax
deprives a court of jurisdiction to hear their claims, now pending for more than
six years. See Tex. Gov’t Code § 311.034; Tex. Civ. Prac. & Rem. Code § 110.006.
In the absence of directly controlling precedent from the Texas Supreme Court,
the district court and the magistrate judge made an “Erie guess” about how the
state court would rule on the issue. See SMI Owen Steel Co., Inc. v. Marsh USA,
Inc., 520 F.3d 432, 437 (5th Cir. 2008) (“In the absence of a final decision by the
state’s highest court on the issue at hand, it is the duty of the federal court to
determine, in its best judgment, how the highest court of the state would resolve
the issue if presented with the same case.” (quotation marks and citation
omitted)). In so doing, both concluded that the method-of-service terms in
TRFRA’s notice provision are not jurisdictional and that the Morgans’ notice was
sufficient.1 The majority opinion reaches the opposite conclusion, based on its



       1
          The majority opinion focuses on the Morgans’ failure to send notice to PISD by
certified mail, return receipt requested; it does not address whether the notice was otherwise
sufficient under TRFRA. See Maj. Op. at 14 n.19. PISD contends that the Morgans’ notice did
not satisfy the other notice criteria because it did not reference TRFRA or refer to the other
elements in TRFRA’s notice provision. I would reject PISD’s argument.
        TRFRA specifies that a plaintiff must give written notice:
       (1) that the person’s free exercise of religion is substantially burdened by an
       exercise of the government agency’s governmental authority;
       (2) of the particular act or refusal to act that is burdened; and
       (3) of the manner in which the exercise of governmental authority burdens the
       act or refusal to act.
Tex. Civ. Prac. & Rem. Code § 110.006(a). TRFRA does not require that the plaintiff’s notice
explicitly reference the statute, as PISD apparently assumes it must, and the Morgans’ letter
fulfills the other statutory requirements: It is framed in terms of an unconstitutional burden
on religious expression, discusses Jonathan Morgan’s desire to distribute religious materials,
and describes PISD’s prohibition against giving such materials as gifts at the school party.


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                                       No. 12-40493

construction of the statutory text and interpretation of two Texas Supreme Court
cases in particular.
       The plain text should be the first and—if at all possible—the only step in
a statutory analysis. But we “are bound to apply [Texas] law as interpreted by
the state’s highest court.” Am. Int’l Specialty Lines Ins. Co. v. Rentech Steel,
L.L.C., 620 F.3d 558, 564 (5th Cir. 2010) (alteration in original) (emphasis
added) (quoting Barfield v. Madison Cnty., Miss., 212 F.3d 269, 271–72 (5th Cir.
2000)).2 “We are emphatically not permitted to do merely what we think best;
we must do that which we think the [Texas] Supreme Court would deem best.”
Jackson v. Johns-Manville Sales Corp., 781 F.2d 394, 397 (5th Cir. 1986) (en
banc) (citation omitted), abrogated in part on other grounds by Salve Regina
Coll. v. Russell, 499 U.S. 225, 231 (1991). Properly framed, then, the question
for us is whether the Texas Supreme Court would interpret the method-of-
service requirement in TRFRA as a jurisdictional condition and “deem [it] best”
to gut the Morgans’ claim because they sent a letter by fax rather than certified
mail, return receipt requested. See id. Based on the precedent I discuss below,
the Texas Supreme Court arguably would disagree with the majority opinion’s
answer to this question. I would avoid this result by certifying the case to the
Texas Supreme Court. See id. (explaining that “[w]e certify questions in order
to avoid having to make unnecessary Erie guesses” (internal quotation marks


       2
         When making an Erie guess about how the Texas Supreme Court would rule on an
issue, our precedent specifies that we consider the following:
       (1) decisions of the [Texas] Supreme Court in analogous cases, (2) the rationales
       and analyses underlying [Texas] Supreme Court decisions on related issues, (3)
       dicta by the [Texas] Supreme Court, (4) lower state court decisions, (5) the
       general rule on the question, (6) the rulings of courts of other states to which
       [Texas] courts look when formulating substantive law and (7) other available
       sources, such as treatises and legal commentaries.
Rentech Steel, 620 F.3d at 564 (quoting Hodges v. Mack Trucks, Inc., 474 F.3d 188, 199 (5th
Cir. 2006)).


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                                       No. 12-40493

omitted)). Because the majority opinion does not do so, and because I am not
convinced that the Texas Supreme Court would reach the same conclusion, I
respectfully dissent.
       The majority opinion centers on the text of section 110.006 and section
311.034, and it emphasizes the Texas Supreme Court’s general statements in
Prairie View A & M Univ. v. Chatha, 381 S.W.3d 500, 511 (Tex. 2012), and
University of Texas Southwestern Medical Center at Dallas v. Arancibia, 324
S.W.3d 544 (Tex. 2010). See Maj. Op. at 6–12. The majority opinion’s approach
is reasonable. But, in my view, it glosses over important qualifications to the
Texas Supreme Court’s holding in Arancibia and fails to account for other Texas
Supreme Court cases that undermine its conclusion.3
       Turning first to Arancibia, the Texas Supreme Court addressed the
following issue: Whether section 311.034 applied to a Texas Tort Claims Act
lawsuit filed years before the legislature enacted section 311.034. See 324
S.W.3d at 546–47; see also Tex. Civ. Prac. & Rem. Code § 101.101(a) (requiring
plaintiffs suing under the Texas Tort Claims Act to notify the government of a
claim within six months, reasonably describing the injury, the time and place of
the incident, and the incident itself). For the purpose of this appeal, the key part
of the Arancibia court’s reasoning states:
       Statutes—like section 311.034—that do not deprive the parties of a
       substantive right and speak to the power of the court rather than to
       the rights or obligations of the parties may be applied to cases



       3
         With regard to the general statements that the majority opinion quotes from Chatha
and Arancibia, I am reminded of a “canon of unquestionable vitality”: we are “‘not to disregard
that general expressions, in every opinion, are to be taken in connection with the case in which
those expressions are used.’” Landgraf v. USI Film Prods., 511 U.S. 244, 265 (1994) (quoting
Cohens v. Virginia, 6 Wheat. 264, 399 (1821)); see also infra n.6 (observing that the Texas
Supreme Court has not applied the general statements from Chatha and Arancibia to bar a
claim under TRFRA or any other statute that requires pre-suit notice).


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                                       No. 12-40493

       pending at the time of enactment. We agree that it is appropriate
       to do so here, and such a construction is not retroactive.
Arancibia, 324 S.W.3d at 548 (emphasis added) (internal citations and quotation
marks omitted). If, by this language, the Arancibia court held that section
311.034 always applies to cases pending when it was enacted, then the majority
opinion reaches the correct result. But the emphasized statements are difficult
to square with such an absolute standard.                  The permissive, case-specific
language that the court chose to use in crafting its holding is pointless if
Arancibia established a blanket rule—otherwise, “may” really means “must.”
That the Texas Supreme Court determined it was “appropriate” to apply section
311.034 there does not show that court would reach the same conclusion here.4
This is especially true considering that, on the facts in Arancibia, the court’s




       4
          Delving into the case law that the Arancibia court relied on further supports this
conclusion. For example, the court quoted Landgraf for the proposition that “the Supreme
Court of the United States has ‘regularly applied intervening statutes conferring or ousting
jurisdiction, whether or not jurisdiction lay when the underlying conduct occurred or when the
suit was filed.’” Arancibia, 324 S.W.3d at 548 (quoting 511 U.S. at 274). Looking to Landgraf
reveals that it supported this statement with citations to cases in which a jurisdictional rule
“simply change[d] the tribunal that [was] to hear the case.” 511 U.S. at 274 (quoting Hallowell
v. Commons, 239 U.S. 506, 508 (1916)). In other words, despite the ostensibly broad reach of
the statement in Landgraf, it did not necessarily establish a rule that a court may always
apply a jurisdictional statute to a pending claim, even when doing so will eliminate the
availability of any tribunal for the claim. Cf. Sw. Bell Tel. Co. v. City of Kountze, 543 S.W.2d
871, 874–75 (Tex. Civ. App.—Beaumont 1976, no writ) (applying a statute granting an agency
exclusive jurisdiction over a claim pending on interlocutory appeal, and then requiring the
trial court to dismiss the lawsuit because the statute did not “destroy the rights of plaintiff;
it simply [took] away from the district court the jurisdiction to adjudicate the question and
confer[red] the exclusive jurisdiction upon another tribunal, namely, the regulatory
commission”). The Arancibia court also quoted Landgraf for the premise that “[c]hanges in
procedural rules may often be applied in suits arising before their enactment without raising
concerns about retroactivity.” 324 S.W.3d at 548. But Landgraf went on to state: “[T]he mere
fact that a new rule is procedural does not mean that it applies to every pending case. A new
rule concerning the filing of complaints would not govern an action in which the complaint had
already been properly filed under the old regime . . . .” 511 U.S. at 275 n.29.


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                                         No. 12-40493

holding did not result in pouring the plaintiffs out based on a technicality that
the opposing party raised more than six years into the lawsuit.5
       Looking to other Texas Supreme Court decisions further undermines the
majority opinion’s rationale.6 For example, in Barr v. City of Sinton, the Texas
Supreme Court confronted a TRFRA claim based on a city zoning ordinance that
precluded the use of homes to provide free housing and religious instruction to
recently released prisoners. 295 S.W.3d at 289. In its factual recitation, the
court noted that “[a]lthough the trial court found that ‘plaintiffs failed to give
notice as required by the Religious Freedom Act’, the City does not argue that
here.” Id. at 292 n.8 (internal alteration omitted) (citing Tex. Civ. Prac. & Rem.
Code § 110.006(a)). Notwithstanding this observation and without any analysis
of its jurisdiction in light of this express finding, the court proceeded to decide
the merits of the appeal. See id. at 294–308. If the plaintiffs’ failure to provide
notice as TRFRA requires was a jurisdictional defect, then the trial court’s
finding was dispositive: the Texas Supreme Court lacked jurisdiction to address




       5
         PISD did not press its challenge to the Morgans’ compliance with TRFRA’s notice
provision until six years into the litigation of this case and after two appeals to this court. See
Morgan v. Swanson, 659 F.3d 359 (5th Cir. 2011) (en banc); Morgan v. Plano Indep. Sch. Dist.,
589 F.3d 740 (5th Cir. 2009).
       6
         The absence of certain Texas Supreme Court precedent also seems relevant to our
decision. In none of the cases that the majority opinion cites did a Texas court apply section
311.034 to bar a claim for failure to comply with the method-of-service requirement under
TRFRA or any other statute that requires pre-suit notice. Moreover, as I discuss in the text,
the Texas Supreme Court in Barr v. City of Sinton did exactly the opposite: it decided the
merits of an appeal after noting that the trial court found the plaintiffs failed to give notice
as TRFRA requires. See 295 S.W.3d 287, 292 n.8 (Tex. 2009). Therefore, the majority opinion
here plows new ground in Texas jurisprudence.


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                                        No. 12-40493

the merits unless it first rejected the trial court’s finding.7 Plainly, however, the
Texas Supreme Court did not consider that to be the circumstance.8
       Although the majority opinion concludes otherwise, the Texas Supreme
Court’s decision in Roccaforte v. Jefferson County also suggests that it might
disagree with the court’s decision here. See 341 S.W.3d 919, 925–27 (Tex. 2011).
There, Jefferson County challenged the plaintiff’s failure strictly to comply with
the post-suit notice requirement in Local Government Code section 89.0041.9 Id.


       7
           The majority opinion recognizes that Barr “undercut[s] [its] conclusion that
compliance with the pre-suit notice provision is jurisdictional.” Maj. Op. at 14. But, in an
attempt to reconcile Barr with the outcome that it reaches, the majority opinion offers the
following: (1) Barr “provide[d] no further discussion or analysis as to why the plaintiff’s notice
was insufficient,” and (2) “Barr was decided prior to Arancibia so the court could not yet rely
on Arancibia’s guidance” regarding section 311.034. Id. Both of these points, however, bolster
the case for certification to the Texas Supreme Court. That Barr provided no discussion or
analysis merely creates more room for doubt about whether the court viewed the plaintiffs’
deficient notice as an issue with jurisdictional ramifications. Moreover, the reference to
Arancibia is not determinative for the reasons discussed above, namely the permissive and
case-specific language that the Texas Supreme Court used in that case.
       8
          The Morgans point out that in the two cases we have decided involving TRFRA
claims, we never discussed whether the plaintiffs provided notice by certified mail, return
receipt requested. See A.A. v. Needville Indep. Sch. Dist., 611 F.3d 248, 254–57 (5th Cir.
2010); Merced v. Kasson, 577 F.3d 578, 583 (5th Cir. 2009). If this precise method of notice is
a jurisdictional prerequisite, that fact would have been important to—indeed, a necessary
condition for—our decisions on the merits.
       9
           Section 89.0041 provides in full:
       (a) A person filing suit against a county or against a county official in the
       official’s capacity as a county official shall deliver written notice to:
                (1) the county judge; and
                (2) the county or district attorney having jurisdiction to defend the
                county in a civil suit.
       (b) The written notice must be delivered by certified or registered mail by the
       30th business day after suit is filed and contain:
                (1) the style and cause number of the suit;
                (2) the court in which the suit was filed;
                (3) the date on which the suit was filed; and
                (4) the name of the person filing suit.
       (c) If a person does not give notice as required by this section, the court in which
       the suit is pending shall dismiss the suit on a motion for dismissal made by the


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                                         No. 12-40493

The county first contended that section 311.034 applied, making the plaintiff’s
failure to comply with section 89.0041 a jurisdictional defect. Id. at 925. The
court rejected this contention, holding that section 89.0041’s notice provision is
not jurisdictional because “[s]ection 311.034 applies to prerequisites to suit, not
notice requirements that can be satisfied only after suit is filed.” Id. (citations
omitted). The county also asserted that section 89.0041 mandated dismissal of
the plaintiff’s claim because the plaintiff’s notice was hand-delivered rather than
mailed. Id. at 926.10 The court disagreed. It reasoned that the plaintiff’s
substantial compliance with the notice provision was sufficient because “[t]he
statute was not intended to create a procedural trap allowing a county to obtain
dismissal even though the appropriate officials have notice of the suit.” Id. at
926 (citations omitted). In a separate opinion, Justice Willett reached the same
result but for different reasons. Id. at 927–31. He criticized the court’s failure
to “take the statute at face value,” explaining that the court’s substantial-
compliance standard contradicts “[s]ection 89.0041’s use of phrases like ‘shall
deliver,’ ‘must be delivered,’ ‘as required,’ and ‘shall dismiss,’” which seemingly
mandate strict compliance.              Id. at 928 (Willett, J., concurring) (footnotes
omitted).
       That eight of nine Texas Supreme Court justices in Roccaforte concluded
substantial compliance with section 89.0041 was sufficient has significant
import here. Like section 89.0041, which explicitly requires that “written notice
must be delivered by certified or registered mail,” Tex. Loc. Gov’t Code



       county or the county official.
Tex. Loc. Gov’t Code § 89.0041 (emphasis added).
       10
          See Tex. Loc. Gov’t Code § 89.0041(c) (“If a person does not give notice as required
by this section, the court in which the suit is pending shall dismiss the suit on a motion for
dismissal made by the county or the county official.”).


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                                   No. 12-40493

§ 89.0041(b), TRFRA’s notice provision states that “[a] person may not bring an
action . . . unless . . . the person gives written notice to the government agency
by certified mail, return receipt requested.” Tex. Civ. Prac. & Rem. Code
§ 110.006(a). On their face, both statutes establish specific, exclusive methods
for giving notice. The majority in Roccaforte, however, concluded that the Texas
Legislature did not intend for section 89.0041 to bar a claim “merely because
[the] notice was hand-delivered rather than mailed.” 341 S.W.3d at 926. It
follows that the Texas Supreme Court might similarly determine that the Texas
Legislature did not intend for section 110.006(a) to preclude a claim simply
because notice was not sent by certified mail, return receipt requested.
Therefore, the Texas Supreme Court may disagree with the majority opinion’s
conclusion here. After all, no one disputes that PISD had actual notice of the
Morgans’ claim, so the majority opinion’s construction of TRFRA “create[s] a
procedural trap” of precisely the same type that the Roccaforte court rejected.
Cf. Roccaforte, 341 S.W.3d at 926.
      In my view, fidelity to “the principles of a cooperative judicial federalism
underlying Erie,” Salve Regina Coll., 499 U.S. at 239, demands that we afford
the Texas Supreme Court an opportunity to decide the novel legal question this
case presents. This case is an ideal candidate for certification “to avoid having
to make [an] unnecessary Erie guess[] . . . .” Jackson, 781 F.2d at 397 (internal
quotation marks omitted). The majority opinion passes up this option because
it “find[s] the statute clear and [is] satisfied that the Texas Supreme Court
would apply the statute as written.” Maj. Op. at 14. For the reasons above,
however, I am not so satisfied. Because Texas precedent leaves room for doubt
regarding whether the Texas Supreme Court would agree with the majority
opinion, I respectfully dissent.




                                       23
