                                    COURT OF APPEALS
                                 EIGHTH DISTRICT OF TEXAS
                                      EL PASO, TEXAS


  SOCORRO INDEPENDENT SCHOOL                       §
  DISTRICT,                                                         No. 08-18-00091-CV
                                                   §
                    Appellant,                                        Appeal from the
                                                   §
  v.                                                             County Court at Law No. 5
                                                   §
  JAMES HAMILTON,                                                 of El Paso County, Texas
                                                   §
                    Appellee.                                      (TC# 2016DCV1566)
                                                   §


                                           OPINION

       In this interlocutory appeal, Socorro Independent School District (SISD or District)

challenges the trial court’s denial of its plea to the jurisdiction. SISD asserts that the doctrine of

governmental immunity deprives the trial court of subject matter jurisdiction over Appellee James

Hamilton’s claim for breach of a separation agreement. Finding no error, we affirm.

                                         BACKGROUND

       Hamilton was employed for many years by SISD after having been hired in October of

1996. On April 14, 2014, Hamilton entered into a term contract to work as the head orchestra

director at William D. Slider Middle School for the 2014-2015 school year. By its terms, the

employment contract ended on May 30, 2015.
         By affidavit, Hamilton (who was over 40 years of age at the time) asserted that the principal

of the school informed him he was going to recommend the non-renewal of his contract for the

2015-2016 school year. Upon hearing of the non-renewal, Hamilton then anticipated he would

file a lawsuit against SISD for age discrimination. After some negotiations, however, he signed a

“Separation Agreement and Release of Claims,” on April 16, 2015, which was also signed by the

Superintendent of Schools for SISD.1 Hamilton asserted that he entered into the agreement “in

exchange for paid administrative leave, unemployment compensation, and a neutral reference.”

Hamilton further asserted that, among its other terms, the settlement released his rights to any

federal or state law claims including claims for discrimination under Federal and Texas law.

         By its terms, the agreement purported that it resolved all claims and causes of action of any

kind whatsoever arising out of Hamilton’s employment with SISD. SISD acknowledged that the

circumstances presented an involuntary work separation and SISD would not argue waiver or

release if Hamilton filed an application for unemployment insurance benefits. The parties further

agreed that Hamilton would remain on administrative leave with pay up until the effective date of

his resignation. Hamilton agreed to submit his irrevocable letter of resignation effective May 30,

2015. SISD agreed to provide a neutral reference of Hamilton to prospective employers. As

specified, the neutral reference would be limited to Hamilton’s beginning and ending dates of

employment, positions held, and salary. The parties also agreed that no report would be made to

the Texas Education Agency or the State Board for Educator Certification and Hamilton would



1
  Hamilton’s counsel stated in his oral argument that Hamilton was notified of the non-renewal of his contract on April
8, 2015, or eight days before he signed the settlement agreement and release of claim. Although we recognize that
counsel’s argument is not evidence, SISD’s counsel did not contest this assertion and we were unable to otherwise
locate the date of notification in our record. This date, however, appears to be consistent with the general timeframe
asserted in Hamilton’s affidavit.

                                                          2
give up any privileges he had pursuant to Chapter 21 of the Texas Education Code. The agreement

stated that its terms were contractual, and its purpose was “to compromise disputed claims, avoid

litigation, and buy peace[.]”

       For valuable consideration, the agreement expressly provided that both parties agreed to

abide by the following release and discharge of claims and causes of action:

                Release. For valuable consideration stated above, both parties agree to fully
       release and discharge each other, and each other’s past, present, and future trustees,
       employees, representatives, and assigns, in both their individual and official
       capacities, from all claims, including administrative claims, causes of action, rights
       and obligations arising under the federal or state constitutions, laws or regulations,
       or board policies regarding any acts or events occurring before the date of execution
       of this Agreement, whether or not such actions could have been brought in this case
       or arise out of the facts of this case including without limitation any claims or causes
       of action arising under Title VII of the Civil Rights Act of 1964, The Americans
       with Disabilities Act, the Texas Commission on Human Rights Act or any other
       state or federal equal employment opportunity law.

       Nearly a year later, on April 13, 2016, Hamilton filed an original petition alleging that

SISD breached the settlement agreement by giving negative references when he applied for

teaching positions at local school districts. Hamilton’s petition asserted that he had fulfilled his

obligation under the agreement by releasing SISD from liability of all claims regarding any acts

or events occurring before the date of the execution of the agreement. Hamilton alleged causes of

action for breach of contract, fraud, and fraudulent inducement. Responding, SISD filed a general

denial and pleaded several affirmative defenses.

       On March 30, 2018, SISD filed a plea to the jurisdiction and no evidence motion for

summary judgment. As a local governmental entity, SISD asserted that Hamilton’s claims were

barred by immunity which SISD had not waived. SISD also asserted that Hamilton had offered

no factual basis for his alleged breach of contract, fraud, or fraudulent inducement claims.


                                                   3
       Responding, Hamilton first included a procedural history of the case in which he

affirmatively informed the trial court of his intent to proceed solely on his breach of settlement

claim and to abandon his other two causes of action as follows:

       Plaintiff hereby waives his fraud [sic] fraudulent inducement claims. The parties
       have agreed to limit the May 16, 2018 hearing to Defendant’s Plea to the
       Jurisdiction and therefore this response will be limited to the plea to the jurisdiction
       issues. The Parties agreed that the Motion for Summary Judgment would only be
       heard after the Court has signed an order on the Plea to the Jurisdiction and that
       additional discovery is necessary for a response to the Motion for Summary
       Judgment.

       As jurisdictional evidence in support of his breach of settlement claim, Hamilton attached

(1) his own affidavit; (2) the separation agreement and release of all claims; (3) his original

petition; (4) his 2014-2015 employment contract; and (5) pro-forma contracts and non-renewal

documents from SISD. Hamilton’s affidavit included his assertion that he anticipated filing a

lawsuit for age discrimination against SISD before he negotiated the settlement agreement with

SISD. Later, when the trial court held a hearing on SISD’s plea, Hamilton confirmed he had

waived his fraud claims and the parties agreed they were proceeding solely on the breach of

contract claim. After argument from both sides, the trial court denied SISD’s plea to the

jurisdiction directed at the breach of contract cause of action.

       This interlocutory appeal followed. See TEX. CIV. PRAC. & REM. CODE ANN. §

51.014(a)(8).

                                           DISCUSSION

       SISD appeals the trial court’s order denying its plea to the jurisdiction asserting that the

doctrine of governmental immunity applies to it as a political subdivision of the state and protects

it from Hamilton’s breach of contract suit. Responding, Hamilton asserts that waiver of immunity


                                                  4
applies to his breach of contract claim based on multiple reasons. First, Hamilton asserts that he

contractually released a class of claims for which immunity had been waived when he entered into

a separation agreement with SISD, and thus, SISD cannot assert immunity against his allegation

that SISD has breached the separation agreement. Second, Hamilton asserts that the separation

agreement itself qualifies as a contract on which immunity has been waived by the Legislature.

Third, Hamilton asserts that waiver should apply given that he relinquished due process rights by

entering into the separation agreement. Fourth, Hamilton asserts that equitable principles support

waiver of immunity under the circumstances of this case. Finally, Hamilton asserts that SISD

waived immunity by its conduct in these circumstances.

                                        Standard of Review

       A plea to the jurisdiction is a mechanism by which a party contests the trial court’s authority

to decide a case. Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000). Subject matter

jurisdiction is essential to a court’s authority. Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852

S.W.2d 440, 443 (Tex. 1993). The plaintiff bears the burden of alleging facts affirmatively

showing that the trial court has subject matter jurisdiction. Id. Whether a trial court has subject

matter jurisdiction is a question of law and is reviewed de novo. Tex. Dep’t of Parks & Wildlife v.

Miranda, 133 S.W.3d 217, 226 (Tex. 2004). When conducting a de novo review, the appellate

court exercises its own judgment and re-determines each legal issue, giving no deference to the

trial court’s decision. Quick v. City of Austin, 7 S.W.3d 109, 116 (Tex. 1998). In deciding a plea

to the jurisdiction, a court may not weigh the merits of the claims but must consider only the

evidence pertinent to the jurisdictional inquiry. Cty. of Cameron v. Brown, 80 S.W.3d 549, 555

(Tex. 2002). The court of appeals credits as true all evidence favoring the non-movant and draws


                                                 5
all reasonable inferences and resolves any doubts in the non-movant’s favor. Miranda, 133

S.W.3d at 228.

                                    Governmental Immunity

       Like its counterpart of sovereign immunity, governmental immunity protects political

subdivisions of the state, including school districts, from liability and lawsuits. See 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). A political subdivision enjoys governmental immunity

from suit to the extent that immunity has not been waived or abrogated by the Legislature. Id.

Governmental immunity consists of immunity from suit and from liability. Harris Cnty. Hosp.

Dist. v. Tomball Reg’l Hosp., 283 S.W.3d 838, 842 (Tex. 2009).           Immunity from suit is

jurisdictional and bars suit. Id. Governmental immunity is waived only by clear and unambiguous

language indicating the Legislature’s intent to do so. Hillman v. Nueces Cty., No. 17-0588, 2019

WL 1231341, at *4 (Tex. Mar. 15, 2019).

                       Hamilton’s Release of Age Discrimination Claims

       Among other arguments, Hamilton first asserts that because SISD agreed to settle classes

of claims for which immunity had been waived by the Legislature, the District cannot thereafter

claim immunity in this suit based on a breach of settlement agreement that itself addressed those

statutory claims. In his affidavit, Hamilton averred that he had contemplated filing an age

discrimination claim but negotiations with SISD intervened which successfully resulted in the

execution of a separation agreement and release of claims. Hamilton points to terms included in

the separation agreement establishing that he had released “all claims,” “rights and obligations

under the federal and state constitutions, laws or regulation,” “the Texas Commission on Human


                                               6
Rights Act,” “Title VII,” “The Americans with Disabilities Act,” “or any other state or federal

equal employment opportunity law,” and “the Age Discrimination in Employment Act.2” Relying

on Texas A & M University-Kingsville v. Lawson, and its progeny, Hamilton asserts that because

SISD agreed to settle classes of claims from which it was not immune, it could not thereafter claim

immunity from suit in an action alleging a breach of the settlement agreement. See Texas A & M

Univ.-Kingsville v. Lawson, 87 S.W.3d 518, 521 (Tex. 2002) (plurality opinion); City of Carrollton

v. Singer, 232 S.W.3d 790, 800 (Tex. App.—Fort Worth 2007, pet. denied); Harris County Hous.

Auth. v. Rankin, 414 S.W.3d 198, 205 (Tex. App.—Houston [1st Dist.] 2013, pet. denied).

        In Lawson, a former employee sued a state university alleging that the university had

breached a settlement agreement it had entered with the employee to settle his wrongful

termination lawsuit. Lawson, 87 S.W.3d at 518-19. Lawson was a clarinet instructor who brought

a claim of a violation of the Whistleblower Act against the university after it terminated his

employment. Lawson, 87 S.W.3d at 518. Lawson and the university later reached a settlement

agreement in which one of the terms of their agreement obligated the university to confirm to

potential employers that he had been employed with the university as an “assistant professor.” Id.

at 519. Lawson alleged, however, that the university told a potential employer that Lawson had

been an “instructor,” and further refused to elaborate on what was meant by that designation. Id.

        After Lawson filed a lawsuit for breach of the settlement agreement, the university filed a


2
 Regarding Hamilton’s release of any claims under the Age Discrimination in Employment Act (hereinafter, ADEA),
we note that the Supreme Court of the United States has held that the ADEA’s purported abrogation of the States’
sovereign immunity has been held invalid. Kimel v. Florida Bd. of Regents, 528 U.S. 62, 91 (2000); see also Univ. of
Tex. at Dallas v. Matney, 280 S.W.3d 882, 884 (Tex. App.—Dallas 2009, no pet.); Texas A & M AgriLife Extension
Services v. Garcia, No. 10-18-00094-CV, 2018 WL 4354055, at * 2 (Tex. App.—Waco Sep. 12, 2018, no pet.) (mem.
op., not designated for publication) (recognizing that employee’s claims under the ADEA are barred by sovereign
immunity in light of Kimel). Accordingly, we will proceed to analyze Hamilton’s anticipated age-discrimination claim
under TCHRA.

                                                         7
plea to the jurisdiction based on immunity. Id. After noting that the Legislature had expressly

waived immunity from suit for violations of the Whistleblower Act, the Texas Supreme Court

observed that Lawson had been entitled to sue the university for violating the statute prior to

entering into the settlement agreement. Id. at 521. Explaining how the waiver of immunity

extended from Lawson’s whistleblower claim to his later breach of settlement claim, the Supreme

Court stated, “when a governmental entity is exposed to suit because of a waiver of immunity, it

cannot nullify that waiver by settling the claim with an agreement on which it cannot be sued.” Id.

(emphasis added). The Court added, “[o]nce the Legislature has decided to waive immunity for a

class of claims, the inclusion of settlements within the waiver is consistent with that decision.” Id.

at 522.

          Following Lawson’s analysis, several Texas courts faced with a question of whether

immunity applied to a breach of contract claim have focused their inquiry on whether the

governmental entity named in a breach of settlement agreement had been earlier exposed to suit at

the time it entered into the negotiated agreement. For example, in Harris Cty. Hous. Auth. v.

Rankin, 414 S.W.3d 198, 200 (Tex. App.—Houston [1st Dist.] 2013, pet. denied), our sister court

in Houston addressed a situation where an employee alleged a breach of contract claim against a

housing authority. The employee had entered into an employment contract to perform as the

authority’s chief executive officer. Id. By its terms, the contract provided that the housing

authority could terminate the chief executive’s employment without cause by choosing to pay him

a full year’s salary. Id. After the contract became a topic of interest at a board meeting, the

executive and the housing authority negotiated a new contract that bought out the prior agreement

for a lesser amount than a full year’s salary. Id. Later, when the housing authority did not pay the


                                                  8
amount expected, the executive filed suit claiming that the housing authority had breached the

newer contract. Id.

         On appellate review, Rankin noted that “[t]he critical inquiry stemming from Lawson and

its progeny … is not focused on whether a suit has been filed, but is focused, instead, on whether

the governmental entity had waived its immunity at the time the subsequent agreement was

reached.” Id. at 204. Recognizing that waiver of immunity had been expressly established by the

Legislature through Section 271.152 of the Local Government Code, 3 Rankin held that the

immunity of the housing authority had likewise been waived on the executive’s later breach of

contract claim. Id. at 205.

         Like in Rankin, the Fort Worth court of appeals reached a similar conclusion in City of

Carrollton v. Singer, 232 S.W.3d 790, 792-93 (Tex. App.—Fort Worth 2007, pet. denied). The

Singer case addressed a situation where the city entered into a settlement agreement of an eminent

domain claim with landowners. Id. As property owners, the Singers conveyed to the city a portion

of their property so that the city could build a roadway, and in turn, the city agreed it would provide

certain improvements to the property. Id. When the Singers became dissatisfied with the city’s

performance they sued the city for breach of the settlement agreement. Id. at 793-94. The Fort

Worth court of appeals held that the city’s immunity had been waived on the Singers’ claim of

breach of agreement based on its conclusion that the type of claim settled by the agreement,

namely, an eminent domain proceeding, qualified as a claim for which the city would not have



3
  Section 271.152 of the Local Government Code provides: “A local governmental entity that is authorized by
statute or the constitution to enter into a contract and that enters into a contract subject to this subchapter waives
sovereign immunity to suit for the purpose of adjudicating a claim for breach of the contract, subject to the terms
and conditions of this subchapter.” TEX. LOC. GOV'T CODE ANN. § 271.152.


                                                            9
retained its immunity. Id. at 800.

       Recently, in Hughes v. Tom Green County, 573 S.W.3d 212, 221 (Tex. 2019), the Texas

Supreme Court reiterated the rule of Lawson in a probate case involving an assignment agreement

between a county government and heirs of a testator who had bequeathed property to the county

and to a private university. The testator had left his home and all its contents, including his rare

book and music collections to Tom Green County with a direction that it be used as a branch

library. Id. at 214. He also provided that the county library board could sell the home and use the

proceeds to buy new books and materials if that were a more beneficial use. Id. In addition to the

home itself, however, the testator also devised the residue of his estate to the county so that funds

may be available for paying off any indebtedness against his home, for upkeep, or for the purchase

of new books. Id.

       As for other bequests, the testator devised his interest in the oil, gas and other minerals of

certain properties located in Reagan and Irion Counties to Southern Methodist University to

establish an endowed chair in the English Department. Id. The proceeds generated from oil and

gas production soon exceeded over $1.5 million becoming the highest level of funding for an

English Department Chair at the university. Id. Given this high funding, the university filed an

application with the probate court seeking authority to use excess funds for other purposes within

the university’s English Department. Id. Responding to the application, other interested parties

intervened. First, the county alleged that the testator’s intent to establish and fund a single

endowed chair had been accomplished, and thus, the county was entitled to “all excess proceeds”

under the will’s residuary clause. Id. at 215. Second, heirs of the testator similarly alleged that

the specific bequests to both the university and the county had been accomplished, and thus, title


                                                 10
to the proceeds reverted to the testator’s heirs. Id.

       While the proceeding remained pending, the county and testator’s heirs agreed to join

forces and entered into a Mutual Partial Assignment (MPA) agreement to present a unified defense

against the university’s request to lift restrictions on its bequest. Id. By their agreement, the county

and heirs formally agreed to share equally in any recovery either of them obtained as a result of

adjudicating their claims against the private university. Id. During a court-ordered mediation, the

county and heirs collectively entered into a settlement agreement which provided that the private

university would pay $1 million in exchange for a release of these adverse claims against the

university. Id.

       Later, after disagreements arose over the county’s performance of the MPA agreement, one

of the heirs sued the county alleging a breach of material terms of the agreement. Id. Responding,

the county filed a plea to the jurisdiction asserting that governmental immunity barred the heir’s

suit alleging a breach of the MPA agreement. Id. at 216. The trial court granted the county’s plea

and the intermediate court affirmed the trial court’s ruling. Id.

       In reversing, the Texas Supreme Court reiterated the rule of Lawson stating that “a

governmental entity cannot create immunity for itself by settling a claim for which it lacks

immunity only to assert immunity from suit in a subsequent action to enforce the government’s

agreement.” Id. at 221. By intervening in the probate proceeding, the County had invoked the

jurisdiction of the probate court over all adverse claims to title including any claim asserted by the

county government. Id. at 219 (citing Reata Construction Co. v City of Dallas, 197 S.W.3d 371,

377-378 (Tex. 2006) (“when a governmental entity asserts claims for affirmative relief in court,

the entity does not have immunity from suit for opposing claims that are germane, connected, and


                                                  11
properly defensive to the entity’s claims, to the extent that the claims of the private litigant offset

those asserted by the governmental entity.”)). Thus, Hughes recognized that the formal agreement

between the heirs and the county had settled adverse claims over disputed property at a time when

the county lacked immunity on those claims.            Id. The Supreme Court concluded that the

intermediate court of appeals had erred in rejecting Lawson based on its assumption that the county

government had retained its immunity in the probate proceeding. Id.

                                               Analysis

       In this suit, Hamilton contends that his release of his statutory claim for age discrimination

pursuant to the Texas Commission on Human Rights (TCHRA) met the standard set by Lawson

and its progeny, and thus, SISD could not create immunity for itself by entering into a settlement

agreement for which it lacked immunity only to assert immunity from suit in a later action to

enforce material terms of the parties’ settlement agreement. In Texas, the Legislature enacted the

Texas Commission on Human Rights Act (TCHRA) as a comprehensive fair employment

practices provision and remedial scheme modeled after Title VII of the federal Civil Rights Act of

1964 to provide a statutory framework for employment discrimination claims. Prairie View A&M

University v. Chatha, 381 S.W.3d 500, 502-03 (Tex. 2012); see TEX. LAB. CODE ANN. §§ 21.001,

21.051, 21.101. Relevant here, the age-discrimination provisions of TCHRA prohibit an employer

from discriminating against an individual over 40 years of age because of their age. TEX. LAB.

CODE ANN. § 21.101. TCHRA defines “employer” to include “a county, municipality, state

agency, or state instrumentality,” and prohibits employers from engaging in discriminatory

practices. TEX. LAB. CODE ANN. §§ 21.002(8)(D), 21.051. Among other entities, the Texas

Supreme Court has concluded that TCHRA clearly and unambiguously waives immunity for suits


                                                  12
brought against school districts. Mission Consol. Indep. Sch. Dist. v. Garcia, 253 S.W.3d 653,

660 (Tex. 2008).

       Here, SISD asserts that despite the express waiver of immunity established by TCHRA, it

retained its immunity against Hamilton’s breach of contract claim and asserts that Lawson and

Rankin do not apply in this instance. Focusing on the circumstances existing when the parties

entered into the separation agreement, SISD first argues that Hamilton had not yet filed a lawsuit

against SISD at the time he entered into the separation agreement. Second, SISD argues that

Hamilton had not initiated, much less exhausted, his administrative remedies required for him to

bring a claim against SISD. Particularly, SISD argues that Hamilton had not initiated the appeal

process afforded under the Texas Education Code to appeal the decision to terminate his

employment. See TEX. EDUC. CODE ANN. § 21.207. The District also argues that Hamilton had

not yet filed a charge of discrimination with the EEOC that would permit him to assert a

discrimination claim against SISD. See Texas Parks & Wildlife Dep’t v. Dearing, 150 S.W.3d

452, 458 (Tex. App.—Austin 2004, pet. denied) (before filing suit, a claimant must strictly satisfy

the procedural requirements outlined in Chapter 21 of the Texas Labor Code). SISD relies on two

cases from our sister courts of appeal in support of its arguments, Donna Indep. Sch. Dist. v.

Gracia, 286 S.W.3d 392, 393 (Tex. App.—Corpus Christi 2008, no pet.) and Tex. Dep’t of Health

v. Neal, No. 03-09-00574-CV, 2011 WL 1744966, at *1 (Tex. App.—Austin May 6, 2011, pet.

denied) (mem. op., not designated for publication).         Because we find these authorities

distinguishable, however, we are not persuaded.

       In Donna Indep. Sch. Dist. v. Gracia, a school district employee who worked as a teacher

and football coach was suspended following a criminal investigation of allegations of hazing.


                                                13
Donna Indep. Sch. Dist., 286 S.W.3d at 393. The school later informed Gracia that his teaching

contract for the following year would not be renewed. Id. In response, Gracia requested a hearing

under the education code. Id. (citing TEX. EDUC. CODE ANN. § 21.253). Before the hearing took

place, however, the school district and Gracia resolved their dispute and entered into a settlement

agreement. Id. Gracia promised to tender a letter of resignation and the district in turn promised

to provide a neutral recommendation to prospective employers who inquired about Gracia’s

employment history with the district. Id. After Gracia was arrested, he filed a suit against the

district alleging a breach of contract claim. Id. Although the district responded with its assertion

that Gracia’s claim was barred by immunity, the trial court denied its plea. Id.

       On appeal, the Corpus Christi court of appeals determined that the issue of immunity

hinged on the substance of Gracia’s underlying claim, and that Lawson provided “the prism

through which [the court] should view how breach of contract claims implicate sovereign

immunity.” Id. at 394 (citing Lawson, 87 S.W.3d at 522). Unlike Lawson’s whistleblower cause

of action, however, the appellate court in Donna Indep. Sch. Dist. found that “Gracia did not have

a statutorily recognized claim pending in the trial court when he entered into an agreement with

the District.” Id. at 395. In other words, the Donna Indep. Sch. Dist. case plainly involved a

dispute over a teacher’s employment contract but did not additionally involve any statutorily

recognized discrimination claims as authorized by the Legislature. Moreover, Donna Indep. Sch.

Dist. found that Gracia’s contract dispute pertaining to his teaching contract had “no adjudicative

value in [the] court system” given that the parties had settled that claim just as Gracia had begun

the administrative process. Id.

       Distinguishing from Lawson, Donna Indep. Sch. Dist. explained that “[t]he Texas Supreme


                                                14
Court … has forestalled the waiver-by-conduct exception to sovereign immunity in situations

where an administrative remedy is available.” Id. (citing Texas Nat. Res. Conservation Com’n v.

IT-Davy, 74 S.W.3d 849, 857 (Tex. 2002) (“Creating a waiver-by-conduct exception would force

the State to expend its resources to litigate the waiver-by-conduct issue before enjoying sovereign

immunity’s protections—and this would defeat many of the doctrine’s underlying policies.”)).

Consequently, Donna Indep. Sch. Dist. expressly found that Lawson did not apply to the claim or

circumstances presented. Id. Accordingly, Donna Indep. Sch. Dist. held in favor of the school

district in finding that the teacher’s breach-of-contract claim was barred by sovereign immunity.

Id.

       In Tex. Dep’t of Health v Neal, an employee working for the Department of Health as a

human resources specialist applied for a position that she felt would provide her with supervisory

opportunities. Tex. Dep’t of Health v. Neal, No. 03-09-00574-CV, 2011 WL 1744966, at *1 (Tex.

App.—Austin May 6, 2011, pet. denied) (mem. op., not designated for publication). After Neal

later learned that a younger person was selected, she filed an internal grievance using an employee

complaint form. Id. Although she checked the “Non-Discrimination” box on the form, her

narrative portion made a reference to possible discriminatory practices during the interview and

selection process. Id. The department later provided her with another form that advised her that

she had to file a complaint with the Texas Commission on Human Rights, within 180 days, if her

complaint involved a claim of discrimination. Id. Thereafter, Neal signed a settlement agreement

which allowed her to rotate into a Specialist V position. Id., at *2. This release, however, did not

mention discrimination. Id. Instead, it merely released the department from any claims or causes

of action arising out of any of the facts made the basis of her complaint. Id. Months later, the


                                                15
department terminated the position and returned Neal to her previous position. Id. Days later,

Neal filed a charge of discrimination with the Texas Commission on Human Rights and the EEOC.

Id. Eventually, Neal filed a lawsuit that not only included a cause of action for employment

discrimination under Chapter 21 of the Texas Labor Code, but also included a cause of action for

breach of the earlier settlement agreement. Id. Neal argued that the settlement agreement

equitably tolled the deadline for pursuing her statutory claim of discrimination. Id. The trial court

denied the department’s plea to the jurisdiction. Id., at *2-3.

       On appeal, the Austin court of appeals held that the employee’s breach of contract claim

was barred by sovereign immunity because it differed factually from Lawson. Id., at *5. Unlike

Lawson, Neal signed a settlement agreement that did not mention discrimination and she had not

satisfied the pre-requisite requirements of the Labor Code by filing a complaint with the Texas

Workforce Commission within 180 days of the alleged discriminatory act. Id.; see also TEX. LAB.

CODE ANN. § 21.202. Neal found that the claimant of Lawson had satisfied statutory prerequisites

and initiated a valid lawsuit before the parties settled the discrimination claim. Id., at *4; Lawson,

87 S.W.3d at 519.

       Despite SISD’s argument, we are not persuaded by Donna Indep. Sch. Dist. or Neal given

that these cases not only differ factually from the circumstances in this instance, but also because

they are not controlling. Viewing the evidence favorable to Hamilton, as we must, Hamilton

established that he had anticipated filing an age-discrimination claim prior to reaching a settlement

agreement with SISD only days after he was informed of his involuntary separation of

employment. Thus, at the time the parties signed the separation agreement and release of claims,

deadlines had not yet passed for him to comply with jurisdictional prerequisites of certain statutory


                                                 16
claims. Based on the terms of the separation agreement itself, we can reasonably infer that SISD

knew of its exposure to Hamilton’s age discrimination claim as this claim, for example, was

expressly included among others for which the district sought and obtained a release and discharge

from Hamilton. By negotiating for a release of discrimination-related claims, SISD contractually

precluded Hamilton from initiating and fulfilling his 180-day filing prerequisite. See TEX. LAB.

CODE ANN. § 21.202 (claimant must file complaint with TWC or EEOC no later than 180th day

after the date alleging an unlawful employment practice has occurred). Beyond merely resolving

his separation of employment, the agreement that SISD entered provided that the parties had

agreed that Hamilton would fully release and discharge SISD for all claims including those that

could be brought under the Texas Commission on Human Rights Act.

       In other words, like in Lawson, SISD had concerns about being exposed to statutorily

recognized claims when Hamilton entered into the agreement with the school district. Following

the controlling authority of Lawson and its progeny, we conclude that the District could not nullify

the legislative waiver of immunity by entering into a separation agreement that included a release

and discharge provision contractually barring Hamilton from initiating statutory claims including

one for age discrimination. See Lawson, 87 S.W.3d at 521 (“when a governmental entity is

exposed to suit because of a waiver of immunity, it cannot nullify that waiver by settling the claim

with an agreement on which it cannot be sued”) (emphasis added); Hughes, 573 S.W.3d at 221

(“Lawson provides that a governmental entity cannot create immunity for itself by settling a claim

for which it lacks immunity only to assert immunity from suit in a subsequent action to enforce

the government’s agreement.”); Travis County, Texas v. Rogers, No. 03-14-00186-CV, 2015 WL

4718726, at *4 (Tex. App.—Austin July 29, 2015, no pet.) (“County is not immune from


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[claimant’s] suit for breach of the Settlement Agreement, which settled viable claims under the

Whistleblower Act.”).

       Because the agreement in this instance reflects that SISD acknowledged its exposure to a

class of claims on which immunity had been waived by the Legislature (i.e., an age-discrimination

claim pursuant to TCHRA) at a time when those claims remained viable, SISD could not nullify

the waiver of immunity by simply entering into a release and separation agreement that precluded

Hamilton from timely pursing such claims then later asserting that governmental immunity applied

to a claim that SISD had breached the separation agreement. See Lawson, 87 S.W.3d at 521;

Rankin, 414 S.W.3d at 204-05; Singer, 232 S.W.3d at 800. We therefore hold that because a

waiver of immunity was statutorily established on Hamilton’s then-viable age-discrimination

claim when he entered into the settlement agreement, Hamilton’s later claim of breach of the

separation agreement was not barred by governmental immunity. Accordingly, we overrule

SISD’s sole issue based on Hamilton’s first argument and there is no need for us to reach his

remaining arguments.

                                         CONCLUSION

       We affirm the trial court’s judgment.


                                               GINA M. PALAFOX, Justice
July 17, 2019

Before Rodriguez, J., Palafox, J., and Larsen, J. (Senior Judge)
Larsen, J. (Senior Judge), sitting by assignment




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