                                 IN THE
                         TENTH COURT OF APPEALS

                                No. 10-18-00094-CV

TEXAS A&M AGRILIFE EXTENSION SERVICES,
                                    Appellant
v.

WANDA S. GARCIA,
                                                          Appellee


                         From the 361st District Court
                             Brazos County, Texas
                       Trial Court No. 17-001596-CV-361


                          MEMORANDUM OPINION

      Texas A&M AgriLife Extension Services terminated the employment of Wanda S.

Garcia who then sued AgriLife for employment discrimination and retaliation under Title

VII of the Civil Rights Act of 1964, the Americans with Disabilities Act (ADA) of 1990,

and the Age Discrimination in Employment Act (ADEA). AgriLife filed a plea to the

jurisdiction as to all of Garcia’s claims. The trial court granted the plea dismissing

Garcia’s ADA claim and claim for punitive damages, but denied the plea as to the ADEA

and Title VII claims. AgriLife appeals the trial court’s denial only as to Garcia’s ADEA
claim. Because the trial court erred in denying AgriLife’s plea to the jurisdiction as to

Garcia’s ADEA claim, the trial court’s order is reversed and remanded in part.

PLEA TO THE JURISDICTION

       A plea to the jurisdiction seeks dismissal of a case or a cause of action for lack of

subject matter jurisdiction. See Harris Cty. v. Sykes, 136 S.W.3d 635, 638 (Tex. 2004); Bland

Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000). Sovereign immunity from suit

defeats a trial court's subject matter jurisdiction. Tex. Dep't of Parks & Wildlife v. Miranda,

133 S.W.3d 217, 225 (Tex. 2004). Whether a pleader has alleged facts that affirmatively

demonstrate a trial court's subject matter jurisdiction is a question of law reviewed de

novo. Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 228 (Tex. 2004). We

construe the pleadings liberally in favor of the plaintiffs and look to the pleaders' intent.

Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 446 (Tex. 1993). A pleader must

be given an opportunity to amend in response to a plea to the jurisdiction only if it is

possible to cure a pleading defect. Tex. A&M Univ. Sys. v. Koseoglu, 233 S.W.3d 835, 840

(Tex. 2007). However, a plaintiff's suit should be dismissed when either the pleadings

alone or the jurisdictional evidence demonstrates that the plaintiff's suit incurably falls

outside any waiver of sovereign immunity. Id.

       AgriLife asserted in its plea to the jurisdiction that, as an agency of the State, it was

immune from suit because the Eleventh Amendment to the United States Constitution

barred Garcia’s federal ADEA claim and the Texas Legislature had not waived the State’s

sovereign immunity against ADEA claims. In response to AgriLife’s plea, Garcia asserted

that the trial court had jurisdiction of Garcia’s ADEA claim because she only sought

Texas A&M AgriLife v. Garcia                                                             Page 2
injunctive relief. Garcia did not dispute that A&M AgriLife, as a member of the Texas

A&M University System, is an agency of the State of Texas and is entitled to assert

sovereign immunity.

Immunity—Abrogation

       Our federal and state constitutional designs represent the principle of state

sovereignty which shields States from private suits in their own courts and in the federal

courts unless: (1) Congress validly abrogates it; or (2) the State voluntarily waives it.

Univ. of Tex. at El Paso v. Herrera, 322 S.W.3d 192, 195 (Tex. 2010). The Age Discrimination

in Employment Act of 1967 (ADEA), as amended, makes it unlawful for an employer,

including a State, "to fail or refuse to hire or to discharge any individual or otherwise

discriminate against any individual . . . because of such individual's age." 29 U.S.C. §

623(a)(1); Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 66, 120 S. Ct. 631, 636 (2000). Although

the Eleventh Amendment to the United States Constitution expresses the principle of

state sovereignty, it is limited by the enforcement provisions of Section 5 of the

Fourteenth Amendment. U.S. CONST. AMENDS. XI & XIV § 5; Kimel, 528 U.S. at 80. Section

5 of the Fourteenth Amendment grants Congress the authority to abrogate the States'

sovereign immunity. Id.

       It would appear that Congress, in enacting the ADEA, abrogated the States’

sovereign immunity, and Garcia would be able to pursue her claim against AgriLife.

However, the United States Supreme Court has already held, and Garcia concedes this,

that the ADEA’s purported abrogation of the States' sovereign immunity is invalid. Id.


Texas A&M AgriLife v. Garcia                                                            Page 3
at 91.    Thus, Garcia’s claim under the ADEA is barred by Eleventh Amendment

immunity. Further, this bar applies regardless of whether the lawsuit seeks legal or

equitable relief, such as an injunction. Univ. of Tex. at Dallas v. Matney, 280 S.W.3d 882,

884 (Tex. App.—Dallas 2009, no pet.).

Immunity—Waiver

         On appeal, Garcia advances an additional argument: that AgriLife voluntarily

waived its immunity to suits filed under the ADEA. Generally, we look to the legislature

to waive the State's immunity which it must do by clear and unambiguous language. See

Univ. of Tex. at El Paso v. Herrera, 322 S.W.3d 192, 201 n. 48 (Tex. 2010); Tooke v. City of

Mexia, 197 S.W.3d 325, 328-29 n. 2 (Tex. 2006). Garcia points to nothing to show that the

legislature has waived the State’s immunity for suits under the ADEA. Instead, Garcia

argues that AgriLife’s website waived its immunity. Specifically, she contends that

because the website only mentions the federal agency regarding claims of discrimination

and not the State agency, the website “cannot be anything less than a waiver.”

         Assuming without deciding that AgriLife, rather than the Texas Legislature, can

waive its own immunity, see Herrera, 322 S.W.3d at 201, and n. 49, or that we can address

an argument not raised in the trial court by a non-movant of a plea to the jurisdiction, see

D.R. Horton-Texas, Ltd. v. Markel Int'l Ins. Co., 300 S.W.3d 740, 743 (Tex. 2009) (argument

not raised in response to summary judgment motion waived), nothing in the pages

attached to Garcia’s brief regarding the website constitutes a voluntary waiver of




Texas A&M AgriLife v. Garcia                                                          Page 4
immunity in “clear and unambiguous language.”1 Thus, Garcia’s ADEA claim falls

outside any waiver of sovereign immunity and cannot be cured by amending her

petition. See Tex. A&M Univ. Sys. v. Koseoglu, 233 S.W.3d 835, 840 (Tex. 2007).

CONCLUSION

         Because Congress has not validly abrogated this State’s sovereign immunity

through the ADEA and the State has not voluntarily waived immunity as to the ADEA,

the trial court should have granted AgriLife’s plea to the jurisdiction as to Garcia’s ADEA

claim.    Accordingly, the trial court erred in failing to grant AgriLife’s plea to the

jurisdiction as to Garcia’s ADEA claim, and AgriLife’s sole issue is sustained. The trial

court’s Order signed on February 20, 2018 is reversed to the extent that it denies

AgriLife’s plea to the jurisdiction on Garcia’s ADEA claim and is remanded to the trial

court with instructions to grant AgriLife’s plea to the jurisdiction as to Garcia’s ADEA

claim. The remainder of the trial court’s Order is affirmed.



                                                TOM GRAY
                                                Chief Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Reversed and remanded in part
Opinion delivered and filed September 12, 2018
[CV06]

1
  Garcia attaches, as Appendix 1, a printout of the Equal Opportunity Statement which notes Federal
agencies to which complaints of discrimination “also may be directed…,” and, as Appendix 2, a printout
of a page which contains a map, a budget chart, and a workforce chart. We have grave doubts that the
exhibits are properly before us for consideration in this appeal. Nevertheless, we have assumed the
appendices can be considered for the purpose of determining the trial court’s jurisdiction as to the ADEA
claim.

Texas A&M AgriLife v. Garcia                                                                      Page 5
