                       COURT OF APPEALS
                        SECOND DISTRICT OF TEXAS
                             FORT WORTH

                            NO. 02-10-00271-CV


COMPTROLLER, STATE OF                                          APPELLANT
TEXAS

                                        V.

WESLEY LANDSFELD                                                 APPELLEE


                                    ------------

        FROM THE 96TH DISTRICT COURT OF TARRANT COUNTY

                                    ------------

                                   OPINION
                                     ----------

                                 I. Introduction

     In three issues, Appellant Comptroller, State of Texas (TCPA) appeals a

judgment in favor of Appellee Wesley Landsfeld. We vacate the trial court’s

judgment and dismiss the case.
                     II. Procedural and Factual Background

      Because we resolve the parties’ dispute over Landsfeld’s employment-

discrimination claim on the TCPA’s procedural challenge, a detailed factual

recitation is unnecessary. Suffice it to say that on February 16, 2005, Landsfeld,

who had already worked ten hours without lunch or a break, refused his

supervisor Maria Lowrance’s request to stay beyond 5:00 p.m., and that on

March 1, 2005, during a meeting, TCPA Office Manager Jarrell Barnes, told

Landsfeld that he could retire or be fired the following day for insubordination.

That same day, Landsfeld tendered a letter to TCPA stating that he would retire

on March 31, 2005.

      On September 27, 2005, Landsfeld filed a complaint with the Equal

Employment Opportunity Commission and the Texas Workforce Commission

(TWC) claiming that TCPA discriminated against him because of his age and that

he was involuntarily retired. On June 8, 2006, Landsfeld received a right-to-sue

notice from TWC allowing him to bring suit within sixty days of that notice. See

Tex. Lab. Code Ann. § 21.254 (West 2006). On July 25, 2006, Landsfeld sued

TCPA for age discrimination. TCPA filed a plea to the jurisdiction based on

Landsfeld’s alleged failure to serve it within sixty days following receipt of the

right-to-sue notice or to use due diligence in attempting service.      See Tex.

Comptroller of Pub. Accounts v. Landsfeld, No. 02-07-00266-CV, 2008 WL

623832, at *2 (Tex. App.—Fort Worth Mar. 6, 2008, no pet.) (mem. op.). The trial

court denied the plea, and after TCPA’s interlocutory appeal, this court affirmed


                                        2
that ruling. Id. A jury trial ensued. After both sides rested, TCPA, for the first

time, asserted that because Landsfeld filed his TWC claim beyond the prescribed

180-day deadline, the trial court lacked jurisdiction. See Tex. Lab. Code Ann.

§ 21.202 (West 2006) (stating that a complaint must be filed within 180 days of

the occurrence of the allegedly discriminatory action). The trial court concluded

that Landsfeld ―[had] file[d] within the statutory period of time‖ and that even if he

had not, ―the State ha[d] waived its complaint,‖ and it denied TCPA’s motion.1

Pursuant to the jury’s findings, the trial court entered a judgment against TCPA,

from which TCPA now appeals.

      III. Labor Code Section 21.202’s 180-Day Charge Filing Deadline

      In its first two issues, TCPA argues that because Landsfeld filed his

complaint beyond labor code section 21.202’s mandatory and jurisdictional 180-

day charge filing deadline and because jurisdiction cannot be waived, the trial

court erred by not dismissing the case. We agree.

A. Standard of Review and Applicable Law

      Whether a court has subject matter jurisdiction is a question of law

reviewed de novo. Tex. Dep’t. of Parks & Wildlife v. Miranda, 133 S.W.3d 217,


      1
        The trial court also noted that it was concerned that ―other than argument,
there’s been absolutely no evidence presented on any of [the jurisdictional]
issues, including beginning date, the date of termination, when [Landsfeld] knew
from the standpoint of a claim dealing with jurisdiction.‖ However, the record
reflects that Landsfeld testified that Barnes presented him with the option of
resignation or termination on March 1, 2005, and that in an email, Landsfeld
resigned effective March 31, 2005.


                                          3
226 (Tex. 2004). Subject matter jurisdiction is an issue that may be raised for the

first time on appeal. Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440,

445 (Tex. 1993). It also may not be conferred by waiver or estoppel. Van ISD v.

McCarty, 165 S.W.3d 351, 354 (Tex. 2005). Sovereign immunity deprives a trial

court of subject matter jurisdiction for lawsuits in which the state or certain

governmental units have been sued unless the state consents to suit. Miranda,

133 S.W.3d at 224.

      Chapter 21 of the labor code provides a limited waiver of sovereign

immunity when a governmental unit has committed age-based employment

discrimination.   See Tex. Lab. Code Ann. § 21.002(8)(D) (West Supp. 2010)

(defining ―employer‖ to include state agency), § 21.051 (West 2006) (prohibiting

age discrimination by employer); Mission Consol. ISD v. Garcia, 253 S.W.3d 653,

660 (Tex. 2008) (labor code clearly and unambiguously waives immunity). The

waiver applies, however, only if the claimant satisfies the procedural

requirements outlined in chapter 21. Garcia, 253 S.W.3d at 660.

      Procedural requirements such as limitations, even if mandatory, may be

waived unless they are jurisdictional. In re United Servs. Auto. Ass’n (USAA),

307 S.W.3d 299, 307 (Tex. 2010) (orig. proceeding). To determine whether a

statutory requirement is jurisdictional, we apply statutory interpretation principles.

City of DeSoto v. White, 288 S.W.3d 389, 394 (Tex. 2009).             Our goal is to

ascertain legislative intent by examining the statute’s plain language. Id.




                                          4
      1. Legislative Intent

      We review this statutory-interpretation question de novo, and in construing

statutes, we ascertain and give effect to the legislature’s intent as expressed by

the statute’s language. City of Rockwall v. Hughes, 246 S.W.3d 621, 625 (Tex.

2008). We use definitions prescribed by the legislature and any technical or

particular meaning the words have acquired. Id. (citing Tex. Gov’t Code Ann.

§ 311.011(b) (West 2005)); see also Entergy Gulf States, Inc. v. Summers, 282

S.W.3d 433, 437 (Tex. 2009) (op. on reh’g) (―Where text is clear, text is

determinative of [the legislature’s] intent.‖). Furthermore, we consider the object

sought to be attained, the circumstances under which the statute was enacted,

its legislative history, and common law or former statutory provisions, including

laws on the same or similar subjects, among other factors. See Tex. Gov’t Code

Ann. § 311.023 (West 2005). In interpreting a statute, a court ―shall diligently

attempt to ascertain legislative intent and shall consider at all times the old law,

the evil, and the remedy.‖ Id. § 312.005 (West 2005). And ―[u]nless expressly

provided otherwise, a reference to any portion of a statute, rule, or regulation

applies to all reenactments, revisions, or amendments of the statute, rule, or

regulation.‖ Id. § 312.008 (West 2005). Finally, we must read the statute as a

whole and not just isolated portions. Tex. Dep’t of Transp. v. City of Sunset

Valley, 146 S.W.3d 637, 642 (Tex. 2004); Boenig v. StarnAir, Inc., 283 S.W.3d

444, 447 (Tex. App.—Fort Worth 2009, no pet.); see also Nauslar v. Coors




                                         5
Brewing Co., 170 S.W.3d 242, 253 (Tex. App.—Dallas 2005, no pet.) (―We

determine legislative intent from the entire act and not just its isolated portions.‖)

      2. Labor Code Section 21.202

      Section 21.202 of the labor code reads ―STATUTE OF LIMITATIONS.

(a) A complaint under this subchapter must be filed not later than the 180th day

after the date the alleged unlawful employment practice occurred.               (b) The

commission shall dismiss an untimely complaint.‖ Tex. Lab. Code Ann. § 21.202.

The 180-day limitations period begins to run when the employee is informed of

the alleged discriminatory employment decision. Tex. Dep’t of Pub. Safety v.

Alexander, 300 S.W.3d 62, 70 (Tex. App.—Austin 2009, pet. denied).                  And

although it does indicate the legislature’s intent, the ―Statute of Limitations‖ title is

not controlling. USAA, 307 S.W.3d at 307. A discrimination claim is governed by

the law in effect on the date the complaint was filed. See Cent. Power & Light v.

Caballero, 872 S.W.2d 6, 7 n.2 (Tex. App.—San Antonio 1994, writ denied).

      3. Government Code Section 311.034

      Section 311.034 of the government code 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 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.



                                           6
Tex. Gov’t Code Ann. § 311.034 (West Supp. 2010) (emphasis added). The final

sentence of section 311.034, added in 2005, became effective on September 1,

2005. See Act of May 12, 2005, 79th Leg., R.S., ch. 1150, § 1, 2005 Tex. Gen.

Laws 3783, 3783 (amending section 311.034) (current version at Tex. Gov’t

Code Ann. § 311.034).       Landsfeld filed his complaint twenty-six days after

section 311.034’s amendment’s effective date, thus section 311.034 as amended

applies to Landsfeld’s claim. See Caballero, 872 S.W.2d at 7 n.2.

B. Analysis

      In its first issue, TCPA argues that the trial court erred because section

21.202 is both mandatory and jurisdictional.       TCPA specifically asserts that

although the supreme court’s holding in USAA overruled precedent as to section

21.256, it did not, as Landsfeld asserts,2 ―call into question the jurisdictional

nature of [section 21.202’s] 180-day charge filing deadline.‖

      In USAA, the supreme court held that section 21.256, which is entitled

―Statute of Limitations‖ and which sets a two-year limitation from the time of filing

an administrative complaint to file a lawsuit, was not jurisdictional. 307 S.W.3d at


      2
        In his response, along with arguing that USAA supports our conclusion
that section 21.202 is nonjurisdictional, Landsfeld argues that Waffle House, Inc.
v. Williams’s references to section 21.202 as ―a statute of limitations‖
demonstrates that the supreme court does not consider section 21.202
jurisdictional. See 313 S.W.3d 796, 805 (Tex. 2010). Williams, however,
involved a private entity and mentioned section 21.202 only briefly when
comparing administrative and common law filing requirements. Id. Williams did
not address section 311.034’s declaration that statutory prerequisites are
jurisdictional in suits against governmental entities. See Tex. Gov’t Code Ann.
§ 311.034.

                                         7
310; see Tex. Lab. Code Ann. § 21.256 (West 2006); Tarrant Reg’l Water Dist. v.

Villanueva, 331 S.W.3d 125, 129 n.3 (Tex. App.—Fort Worth 2010, pet. filed).

Although we did not directly address section 21.202 in Villanueva, we noted that

in USAA, the supreme court reversed its earlier decision relative to labor code

section 21.256 but that it did not disturb its prior holding ―that failure to file a

complaint and to pursue administrative remedies within [section 21.202’s] 180-

day time frame creates a jurisdictional bar.‖ See Villanueva, 331 S.W.3d at 129

n.3.

       In USAA, the supreme court’s analysis began with the presumption that

the provision was nonjurisdictional, ―a presumption overcome only by clear

legislative intent to the contrary.‖ 307 S.W.3d at 307 (emphasis added). The

supreme court noted that section 21.256 did not contain any language explicitly

indicating that it was jurisdictional and considered that if the section’s filing

deadline were jurisdictional, many apparently final judgments would be open to

attack. Id. at 308, 310. The supreme court preferred to avoid this result ―unless

that was the Legislature’s clear intent.‖ Id. (emphasis added). Unlike section

21.256, section 21.202(b)’s mandate that ―[t]he commission shall dismiss an

untimely complaint‖ shows the legislature’s intent to make the 180-day filing

deadline jurisdictional.   Tex. Lab. Code Ann. § 21.202; Lueck v. State, 325

S.W.3d 752, 763–66 (Tex. App.—Austin 2010, pet. filed) (analyzing subsection

(b)’s role in determining legislative intent to make section 21.202 mandatory and

jurisdictional); see also House Study Group, Bill Analysis, Tex. H.B. 14, 68th Leg.


                                         8
C.S.1 (1983) (―Aggrieved persons would have to file a complaint with the

commission within 180 days of the alleged unlawful practice.‖).

      Furthermore, in USAA, the supreme court concluded 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 Ann.
      § 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). Thus, stated another way, the legislature

has expressly declared that statutory prerequisites to filing suit are jurisdictional

in cases relating to governmental entities.3 See also Little v. Tex. Bd. of Law

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

prerequisites to suits against governmental entities are jurisdictional‖).

      Moreover, in Roccaforte v. Jefferson County, a post-USAA decision in

which the supreme court considered whether a post-suit notice requirement was

      3
        After USAA, the Corpus Christi Court of Appeals found that labor code
section 21.254’s sixty-day deadline to file suit after receipt of notice of the right to
file a civil action was not jurisdictional even as to a government entity. See
Mission Consol. ISD v. Garcia, 314 S.W.3d 548, 559 (Tex. App.—Corpus Christi
2010, pet. filed) (op. on reh’g). However, section 21.254 does not contain the
mandatory dismissal language found in section 21.202 and, instead, states that a
party ―may‖ file a civil action within sixty days of receiving a right-to-sue notice
from the TWC. See Tex. Lab. Code. Ann. § 21.254; see also McCollum v. Tex.
Dep’t of Licensing & Regulation, 321 S.W.3d 58, 64 (Tex. App.—Houston [1st
Dist.] 2010, pet. filed) (―Unlike section 21.202, section 21.254 does not mandate
that a suit that is filed and served beyond the 60-day window must be
dismissed.‖). Moreover, when Garcia was filed, the final sentence of section
311.034 was not yet in effect. See Garcia, 314 S.W.3d at 559; Act of June 15,
2001, 77th Leg., R.S., ch. 1158, § 8, 2001 Tex. Gen. Laws 2374, 2433 (amended
2005) (current version at Tex. Gov’t Code Ann. § 311.034).


                                           9
jurisdictional, the court held that section 311.034 did not apply because a post-

suit requirement is not a ―prerequisite to a suit.‖ 341 S.W.3d 919, 924 (Tex.

2011); see Tex. Loc. Gov’t Code Ann. § 89.0041 (West 2008). And, although the

supreme court concluded that local government code section 89.0041 was

nonjurisdictional, even against a government entity, the court reemphasized that

jurisdictional analysis focused on legislative intent and noted that

      local government code section 89.0041 [does not] show such intent:
      that section states that a trial court may dismiss a case for
      noncompliance only after the governmental entity has moved for
      dismissal. 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.‖). The motion requirement means that
      a case may proceed against those governmental entities that do not
      seek dismissal—in other words, that a county can waive a party’s
      noncompliance. This confirms that compliance with the notice
      requirements is not jurisdictional. See Loutzenhiser, 140 S.W.3d at
      359 (―The failure of a non-jurisdictional requirement mandated by
      statute may result in the loss of a claim, but that failure must be
      timely asserted and compliance can be waived.‖).

Roccaforte, 341 S.W.3d at 925–26 (emphasis added).              In contrast, section

21.202(b) expressly dictates that if a filing is not timely, the commission ―shall

dismiss‖ the claim. Tex. Lab. Code Ann. § 21.202(b). This provision removes

any discretion on the part of the commission and mandates automatic dismissal

without any action on the part of the employer. Id.; cf. Lueck, 325 S.W.3d at

764–766 (recognizing the critical role section 21.202 plays in preventing

circumvention of the administrative review process).




                                         10
      Therefore, we are constrained to conclude that when the employer is a

governmental entity, section 21.202’s 180-day filing requirement is a mandatory

and jurisdictional prerequisite to filing a lawsuit.   See Schroeder v. Tex. Iron

Works, Inc., 813 S.W.2d 483, 485, 486 (Tex. 1991), overruled on other grounds

by USAA, 307 S.W.3d at 310; Villanueva, 331 S.W.3d at 129 n.3; see also

Collins-Pearcy v. Mediterranean Shipping Co. (USA) Inc., 698 F. Supp. 2d 730,

742 (S.D. Tex. 2010) (same); Tex. S. Univ. v. Rodriguez, No. 14-10-01079-CV,

2011 WL 2150238, at *2 (Tex. App.—Houston [14th Dist.] Jun. 2, 2011, no pet.

h.) (mem. op.) (stating that section 21.202 is mandatory and jurisdictional);

Lamar Univ. v. Jordan, No. 09-10-00292-CV, 2011 WL 550089, at *2 (Tex.

App.—Beaumont Feb. 17, 2011, no pet.) (mem. op.) (same); In re Arcelormittal

Vinton, Inc., 334 S.W.3d 347, 350 (Tex. App.—El Paso 2011, orig. proceeding)

(same); Lueck, 325 S.W.3d at 762 (same). And because TCPA could neither

waive nor be estopped from asserting its jurisdictional challenge, we sustain

TCPA’s first issue. See McCarty, 165 S.W.3d at 354.

C. Application to Jurisdictional Facts

      In its second issue, TCPA contends that Landsfeld filed his administrative

complaint too late, depriving the trial court of jurisdiction. The parties do not

dispute the jurisdictional facts, only their legal effect.      Whether undisputed

evidence of jurisdictional facts establishes a trial court’s jurisdiction is a question

of law reviewed de novo. Miranda, 133 S.W.3d at 226.




                                          11
      As noted above, section 21.202 requires a complaint to be filed ―not later

than the 180th day after the date the alleged unlawful employment practice

occurred.‖   Tex. Lab. Code Ann. § 21.202.          Exhaustion of administrative

remedies is a prerequisite to a suit, and exhaustion is impossible if the complaint

is untimely. Williams, 313 S.W.3d at 804; Lueck, 325 S.W.3d at 762.

      Landsfeld argues that the relevant date was March 31, 2005 (his last day

of employment), 179 days before he filed his complaint. TCPA counters that the

relevant date was March 1, 2005 (the date Landsfeld was told that if he did not

immediately retire, he would be fired), 209 days before Landsfeld filed his

complaint.

      ―The limitations period begins when the employee is informed of the

allegedly discriminatory employment decision, not when that decision comes to

fruition.‖ Specialty Retailers, Inc. v. DeMoranville, 933 S.W.2d 490, 493 (Tex.

1996) (stating that the 180-day period began when employee was told she would

be fired if medical leave lasted over one year, not when she was actually fired);

see also Villanueva, 331 S.W.3d at 134 (holding that the 180-day period began

when employee was denied pay raise, not at time of paycheck); Alexander, 300

S.W.3d at 70 (concluding that the 180-day period began when employees

learned that they would not be promoted, not when promotions took effect).

Accordingly, we conclude that the 180-day limitations period began on March 1,

2005, when Landsfeld was given the option to retire or be terminated. Because

Landsfeld filed his complaint twenty-nine days beyond section 21.202’s 180-day


                                        12
filing deadline, and because section 21.202’s 180-day filing deadline is

mandatory and jurisdictional, the trial court had no jurisdiction to hear Landsfeld’s

case. We sustain TCPA’s second issue.

                                 IV. Conclusion

      Having sustained TCPA’s dispositive issues,4 we vacate the trial court’s

judgment and dismiss the case.



                                                    BOB MCCOY
                                                    JUSTICE

PANEL: DAUPHINOT, GARDNER, and MCCOY, JJ.

DAUPHINOT, J. filed a dissenting opinion.

DELIVERED: August 31, 2011




      4
      Because we conclude that the trial court had no jurisdiction, we need not
consider TCPA’s evidentiary sufficiency challenge. See Tex. R. App. P. 47.1.

                                         13
                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                              NO. 02-10-00271-CV


COMPTROLLER, STATE OF                                                APPELLANT
TEXAS

                                        V.

WESLEY LANDSFELD                                                       APPELLEE


                                    ------------

         FROM THE 96TH DISTRICT COURT OF TARRANT COUNTY

                                    ------------

                           DISSENTING OPINION
                                     ----------

      I must respectfully dissent from the majority opinion because I cannot

agree with the holding that Landsfeld’s claim is barred by the statute of

limitations. The majority states that the 180-day statute of limitations began to

run on March 1, 2005, the day TCPA Office Manager Jarrell Barnes told

Landsfeld that he could retire or be fired on the following day for insubordination

and the day that Landsfeld tendered a letter to TCPA stating that he would retire
on March 31, 2005.1 If the limitations period did, indeed, begin to run on March

1, then the 180 days for filing notice with the EEOC expired before September 1,

2005, the effective date of the change in law that amended Section 311.034 of

the government code to add the sentence, ―Statutory prerequisites to a suit,

including the provision of notice, are jurisdictional requirements in all suits

against a governmental entity.‖2 That is, the limitations period expired before

September 1, 2005, the effective date of the amendment making statutory

prerequisites, like the 180-day notice period, jurisdictional. Accordingly, under

this scenario, the trial court correctly held that TCPA waived the limitations

argument.

      If, however, as I believe, the Texas Labor Code’s 180-day statute of

limitations begins to run, at the latest, on the day the last adverse action was

taken by the employer, then under the facts of this case, it began to run on the

date that Landsfeld actually resigned, March 31, 2005, not March 1, the date on

which the employer threatened to fire him and on which he gave notice of his

future departure. On any date between March 1 and March 31, the parties could

have resolved their disagreement without involving the courts, a measure that

good policy should encourage. The latest adverse act taken by the employer

      1
       Majority op. at 2, 12–13.
      2
       See id. at 6–7; Tex. Lab. Code Ann. § 21.202 (West 2006) Tex. Gov’t
Code Ann. § 311.034 (West Supp. 2010); Act of May 12, 2005, 79th Leg., R.S.,
ch. 1150, § 1, 2005 Tex. Gen. Laws 3783, 3783 (amending section 311.034)
(current version at Tex. Gov’t Code Ann. § 311.034).


                                       2
was carrying through with the threat to accept Landsfeld’s resignation as an

alternative to firing him. Had Landsfeld withdrawn his resignation before actually

walking away from his employment, and had the employer carried through on its

threat to fire him at that point, it would be nonsensical to hold that the limitations

period for giving notice began to run on the day that Landsfeld gave notice of his

intent to resign. For these reasons, I would hold that Landsfeld timely filed his

notice within 180 days of the last adverse action, which was his constructive

discharge on March 31, the date the employer carried through on its threat to fire

or to allow Landsfeld’s resignation.

      Because I would uphold the trial court’s judgment under either scenario, I

respectfully dissent.




                                                    LEE ANN DAUPHINOT
                                                    JUSTICE

DELIVERED: August 31, 2011




                                          3
