Opinion issued September 20, 2012




                                     In The

                              Court of Appeals
                                     For The

                          First District of Texas
                          ————————————
                              NO. 01-10-00836-CV
                           ———————————
                        GORDON R. GOSS, Appellant
                                        V.
                     THE CITY OF HOUSTON, Appellee


                   On Appeal from the 270th District Court
                            Harris County, Texas
                      Trial Court Case No. 2010-12979


                                  OPINION

      Appellant, Gordon R. Goss, appeals the trial court’s grant of the plea to the

jurisdiction filed by appellee, the City of Houston (“the City”). The appeal arises

from the dismissal of Goss’s claims for violations of the Texas Commission on

Human Rights Act (“TCHRA”), conspiracy to violate the TCHRA, and intentional
infliction of emotional distress. In four issues, Goss argues the trial court erred by:

(1) ordering the case to be dismissed when certain claims were still before the trial

court; (2) granting more relief than requested by the City; (3) improperly

dismissing his claims with prejudice; and (4) determining that his claims were

barred by the statute of limitations.1 In a cross-point, the City argues that we lack

jurisdiction to consider this appeal. We affirm the trial court’s order dismissing the

case for lack of jurisdiction with prejudice.

                                      Background

      Goss’s claims arise out of complaints he filed with the Texas Workforce

Commission (TWC) and with the United States Equal Employment Opportunity

Commission (EEOC), one filed on April 13, 2006 and one filed on January 8, 2007

and amended on July 3, 2007. On April 13, 2009, the EEOC notified Goss and his

attorney in two separate determinations that it believed the City had violated Title

VII of the Civil Rights Act of 1964 (“Title VII”). The determinations made no

reference to the TCHRA or any other state law or potential claim. On May 28,

2009, Goss and his attorney were notified that conciliation efforts required by Title

VII had been unsuccessful. On November 23, 2009, Goss was notified by the

United States Department of Justice (“DOJ”) that he had the right to institute a

1
      Goss identifies two issues in his statement of the issues. In his argument section,
      Goss identifies four sub-issues for the first issue. Goss’s second issue re-argues
      matters raised in his first issue. Accordingly, for purposes of this opinion, we treat
      the four sub-issues in his first issue as the issues to consider on appeal.
                                            2
civil action under Title VII and that “such suit must be filed in the appropriate

court within 90 days of your receipt of this Notice.” The right to sue letter from

the DOJ made no reference to the TCHRA or any other state law claim.

      Goss filed suit on February 26, 2010, asserting claims under the TCHRA

and intentional torts. He did not include any federal claims. After the City filed its

plea to the jurisdiction and motion for summary judgment, however, Goss filed an

amended petition asserting federal claims under Title VII. He did not serve this

petition on the City until July 21, 2010, over a month after the June 4, 2010 hearing

on the City’s plea to the jurisdiction, and a month after the trial court’s June 21,

2010 order dismissing Goss’s suit with prejudice.

                                  Statute of Limitations

      In his third issue, Goss argues the trial court erred by granting the City’s plea

to the jurisdiction based on the statute of limitations because equitable tolling

applies.   The City responds that statutory requirements, including limitations

periods, are jurisdictional in suits against the City and that the equitable tolling

doctrine does not apply. We agree with the City.

      The TCHRA provides that a plaintiff who seeks redress under that Act must

file suit within two years of the date he filed his complaint with the Texas

Workforce Commission. TEX. LABOR CODE ANN. § 21.256 (Vernon 2006); see

City of Houston v. Fletcher, 63 S.W.3d 920, 922 (Tex. App.—Houston [14th Dist.]

                                          3
2002, no pet.) (holding that aggrieved employee must file complaint within 180

days of alleged discriminatory act, allow TWC 180 days to dismiss or resolve

complaint before filing suit, and “file suit in district court no later than two years

after the complaint is filed with the [TWC]”). Here, Goss filed two complaints

with the EEOC and the TWC, one on April 13, 2006 and one on January 8, 2007.

In both circumstances, Goss indicated that he wanted the charges filed with what is

now the Texas Workforce Commission, Civil Rights Division. The EEOC issued

its determinations on April 13, 2009. A right to sue letter was issued on November

23, 2009. Goss filed suit, alleging violations of the TCHRA, on February 26,

2010, over three years after he filed his last charge with the EEOC. Thus, this suit

was untimely under the plain language of the TCHRA.

      The City argues that a statute of limitations is jurisdictional in a suit against

a governmental entity and, therefore, because Goss brought his TCHRA suit after

limitations had run, the trial court lacked subject matter jurisdiction and properly

dismissed the suit with prejudice. To support its argument, the City relies on

Government Code section 311.034, a Texas Supreme Court case, and an opinion

from the El Paso Court of Appeals.         See TEX. GOV’T CODE ANN. § 311.034

(Vernon Supp. 2012); In re United Servs. Auto. Ass’n, 307 S.W.3d 299, 310 (Tex.

2010); El Paso Indep. Sch. Dist. v. Alspini, 315 S.W.3d 144, 149 (Tex. App.—El

Paso 2010, no pet.). While this suit was pending, however, the Texas Supreme

                                          4
Court answered this question definitively. See Prairie View A & M Univ. v.

Chatha, No. 10-0353, 2012 WL 3800321, at *8–10 (Tex. Aug. 31, 2012) (applying

Labor Code section 21.202, requiring that complaint under TCHRA be filed with

TWC within 180 days, to section 311.034)

      Section 311.034 provides, in relevant part, “Statutory prerequisites to a suit,

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

a governmental entity.”       TEX. GOV’T CODE ANN. § 311.034.              In Prairie

View A & M, the Texas Supreme Court espressly held that the 180-day

administrative filing deadline is jurisdictional. See Prairie View A & M Univ.,

2012 WL 3800321, at *8–10. Courts have also determined that notices of intent to

file suit and exhaustion of administrative remedies are statutory prerequisites that

function as jurisdictional requirements in a suit against a governmental entity.

Colquitt v. Brazoria Cnty., 324 S.W.3d 539, 543 (Tex. 2010) (applying

requirement to provide notice of intent to file suit to section 311.034); MHCB

(USA) Leasing & Fin. Corp. v. Galveston Cent. Appraisal Dist. Review Bd., 249

S.W.3d 68, 82 (Tex. App.—Houston [1st Dist.] 2007, pet. denied) (applying

exhaustion of administrative remedies requirements to section 311.034).

      Prior to Prairie View A & M, the El Paso Court of Appeals had held that

compliance with the statute of limitations in Labor Code section 21.256 was not

only a mandatory statutory prerequisite to bringing suit under the TCHRA but was

                                          5
also jurisdictional when the defendant is a governmental entity.        Alspini, 315

S.W.3d at 149. As authority for its holding, the Alspini court relied upon the Texas

Supreme Court’s opinion in In re United Services Auto Association. In United

Services, the supreme court—mindful of its own prior opinion in Dubai Petroleum

Co. v. Kazi, 12 S.W.3d 71 (Tex. 2000), which held that a statutory prerequisite

may be mandatory without being jurisdictional and observing that the United

States Supreme Court had “consistently construed Title VII’s requirements as

mandatory but not jurisdictional”—held that the two-year statutory period for

filing suit against a private employer on claims brought under the TCHRA was

“mandatory but not jurisdictional” and was, therefore, subject to equitable tolling.

United Servs., 307 S.W.3d at 306, 308, 310–11. However, the court also observed,

as part of its rationale,

       [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.

Id. at 308.

       Citing the foregoing statement in United Services, the Alspini court held that

compliance with the statute of limitations for an employment discrimination claim

under the TCHRA set out in Labor Code section 21.256 was a mandatory statutory

prerequisite to bringing suit under the TCHRA against a governmental entity and
                                          6
was jurisdictional. Alspini, 315 S.W.3d at 149. And it observed that “a failure to

comply with the mandatory statutory requirements deprives a trial court of subject

matter jurisdiction in a subsequent lawsuit alleging violations of the Act against a

governmental entity.” Id. (citing United Servs., 307 S.W.3d at 308).

      We agree with the Alspini court that, in United Services, the Texas Supreme

Court explicitly recognized that the TCHRA and Government Code section

311.034 were both intended by the Legislature to have effect and that the express

intent of section 311.034 is to make statutory prerequisites to suit jurisdictional in

suits brought against governmental entities, including the mandatory, but otherwise

non-jurisdictional, statutory limitations period in Labor Code section 21.256. See

United Servs., 307 S.W.3d at 308; Alspini, 315 S.W.3d at 149; see also Chatha,

2012 WL 3800321, at *8 (holding that 2005 amendment of section 311.034

“evinces the Legislature’s intent that all statutory prerequisites are now

jurisdictional requirements as to governmental entities and are properly asserted in

a plea to the jurisdiction”). We specifically observe that to hold otherwise would

draw an unfounded distinction between “statutory prerequisites” and statutes of

limitations and contravene the express intent of the Legislature, set out in

Government Code section 311.034, that all statutory prerequisites to suit be

considered jurisdictional when the defendant is a governmental entity. See TEX.

GOV’T CODE ANN. § 311.034; Chatha, 2012 WL 3800321, at *8–9 (holding that

                                          7
“the term ‘statutory prerequisite’ refers to statutory provisions that are mandatory

and must be accomplished prior to filing suit” and that “[i]n a statutory cause of

action against a governmental entity, the failure to adhere to the statute’s

mandatory provisions that must be accomplished before filing suit is a

jurisdictional bar to suit”).

       In accordance with the foregoing authority, we hold that the TCHRA’s

statutory limitations period is jurisdictional under Government Code section

311.034. Accordingly, we hold that compliance with the statute of limitations in

the TCHRA is a statutory prerequisite to filing suit under that statute against a

governmental entity. Goss filed this litigation well outside the statutory limitations

period. Failure to comply with a jurisdictional requirement for suit against a

government entity deprives the trial court of power to act, other than to determine

that it lacks jurisdiction. Little v. Tex. Bd. of Law Examiners, 334 S.W.3d 860, 862

(Tex. App.—Austin 2011, no pet.).             Accordingly, suits brought against a

governmental entity in violation of a statute of limitations, as here, must be

dismissed for lack of jurisdiction. Because Goss’s TCHRA claims against the City

were untimely filed, the City was entitled to dismissal of those claims. Therefore,

we hold that the trial court properly granted the City’s plea to the jurisdiction on

the basis of statute of limitations, subject only to the validity of Goss’s equitable

tolling claims.

                                          8
                                    Equitable Tolling

      In his fourth issue, Goss argues that the trial court erred by granting the

City’s plea to the jurisdiction based on the statute of limitations because equitable

tolling applies to toll both his claims under the TCHRA, which are subject to the

two-year statute of limitations set out in Labor Code section 21.256, and under

Title VII.   See TEX. LAB. CODE ANN. § 21.256.          Goss asserts two bases for

equitable tolling: (1) the EEOC’s failure to process the charge within the

limitations period and (2) misrepresentations from an EEOC agent that Goss had to

wait for the right to sue letter before filing suit. He argues that the TCHRA is

analogous to Title VII, which provides for equitable tolling when a complainant

has, as here, filed a “defective pleading” or filed in the wrong forum.

      1. TCHRA Claims

      Goss’s arguments are based on federal opinions interpreting federal law,

namely Title VII. See N. Metal Co. v. United States, 350 F.2d 833, 839 (3d Cir.

1965) (holding limitations period is tolled while administrative agency has

exclusive jurisdiction over claim if that time goes beyond time to bring claim in

trial court); Hood v. Sears Roebuck & Co., 168 F.3d 231, 232 (5th Cir. 1999)

(holding equitable tolling applies when EEOC misleads claimant about nature of

her rights under Title VII).




                                          9
      Goss’s original petition concerns state law claims brought in a state court.

Goss does not cite to any case law showing that Texas has adopted his equitable

tolling arguments, nor have we found any. To the contrary, the TCHRA and Title

VII are not the same or analogous, nor is the case law interpreting the requirements

for filing suit under these statutes. For example, a Notice of Right to Sue is

required when claims are filed under Title VII. See 42 U.S.C. § 2000e-5(f)(1)

(providing that Title VII action may be brought “within ninety days after the giving

of . . . notice”). But a person who wishes to bring a lawsuit alleging discrimination

in violation of the TCHRA need only wait 180 days after filing a charge with the

TWC before filing suit. Burgmann Seals Am., Inc. v. Cadenhead, 135 S.W.3d 854,

857–58 (Tex. App.—Houston [1st Dist.] 2004, pet. denied).

      In addition, Title VII lacks a limitations provision parallel to the TCHRA’s

provision requiring that suit be filed within two years of the date the claimant filed

the administrative complaint. Statutes of limitations, like that in the TCHRA,

      operate to prevent the litigation of stale claims; they “afford plaintiffs
      what the legislature deems a reasonable time to present their claims
      and protect defendants and the courts from having to deal with cases
      in which the search for truth may be seriously impaired by the loss of
      evidence, whether by death or disappearance of witness, fading
      memories, disappearance of document or otherwise. The purpose of a
      statute of limitation is to establish a point of repose. . . .”

Kerlin v. Sauceda, 263 S.W.3d 920, 925 (Tex. 2008) (quoting S.V. v. R.V., 933

S.W.2d 1, 3 (Tex. 1996)). The Texas Legislature has considered this function of

                                         10
the statute of limitations to be sufficiently important when private claims are

alleged against governmental entities that it has made this limit jurisdictional. See

TEX. GOV’T CODE ANN. § 311.034.

      Thus, while the federal courts have found equitable tolling in certain cases

brought under Title VII, the considerations that support such claims in those suits

are not present in TCHRA suits. Rather, construing the TCHRA as permitting

equitable tolling would contradict the express purpose of Texas’s statutes of

limitations and the jurisdictional bar to suit such statutes impose when

governmental entities are sued in Texas state courts. Application of the doctrine of

equitable tolling in such a case would also undermine the carefully articulated

scheme set out by the Legislature for the equitable resolution of employment

discrimination claims. Accordingly, we hold that the equitable tolling doctrine

does not apply to claims brought against governmental entities under the TCHRA.

      2. Title VII Claims

      Goss also asserts that he was “misled” by the EEOC and that, therefore,

under federal law, his Title VII claims “relate back” to the date he filed his

TCHRA claims. We disagree.

      Texas’s “relation back” doctrine is set out in Civil Practice and Remedies

Code section 16.068, which provides:

      If a filed pleading relates to a cause of action, cross action, counterclaim, or
      defense that is not subject to a plea of limitation when the pleading is filed, a
                                         11
      subsequent amendment or supplement to the pleading that changes the facts
      or grounds of liability or defense is not subject to a plea of limitation unless
      the amendment or supplement is wholly based on a new, distinct, or
      different transaction or occurrence.

TEX. CIV. PRAC. & REM. CODE ANN. § 16.068 (Vernon 2008). Texas courts apply

a two-pronged test to determine whether an amended pleading relates back to an

earlier pleading for purposes of limitations. Tex. A & M Univ. Sys. v. Luxemburg,

93 S.W.3d 410, 421 (Tex. App.—Houston [14th Dist.] 2002, pet. denied); Cooke v.

Maxam Tool & Supply, Inc., 854 S.W.2d 136, 141 (Tex. App.—Houston [14th

Dist.] 1993, writ denied). “First, the original cause of action asserted in the first

pleading must not have been time-barred when filed; and second, the amended

pleading which changes the grounds of liability must not be wholly based on a

new, distinct, or different transaction or occurrence.” Luxemburg, 93 S.W.3d at

421–22; Cooke, 854 S.W.2d at 141.

      Under section 16.068, a claim asserted in an amended petition which is

related to the same transaction that is the subject of an original petition is time-

barred if the claim made in the original petition is itself time-barred. See SJW

Prop. Commerce, Inc. v. Sw. Pinnacle Props., Inc., 328 S.W.3d 121, 145 (Tex.

App.—Corpus Christi 2010, pet. denied) (“Section 16.068 is a tolling statute that

stops the clock at the time that the original petition is filed, if filed within the

limitations period, but cannot toll a time period already expired.”); Almazan v.

United Servs. Auto. Ass’n, 840 S.W.2d 776, 778 (Tex. App.—San Antonio 1992,
                                         12
writ denied) (stating, “a cause of action barred by limitation cannot be revived by

filing a pleading stating an invalid cause of action and thereafter amending to

include the barred cause of action,” nor can it revive a time-barred cause of action)

(quoting Church v. Ortho Diagnostic Sys., Inc., 694 S.W.2d 552, 556 (Tex. App.—

Corpus Christi 1985, writ ref’d n.r.e.)). Moreover, because the trial court lacked

jurisdiction over Goss’s TCHRA suit, his original petition was a nullity and could

neither toll limitations nor create subject matter jurisdiction over Goss’s amended

petition. See EcoProduct Solutions, L.P. v. ENGlobal Eng’g, Inc., No. 01-10-

00366-CV, 2011 WL 2624003, at *7 (Tex. App.—Houston [1st Dist.] Jun. 30,

2011, pet. denied) (mem. op.); Sun v. Al’s Formal Wear of Houston, Inc., No. 14-

96-01516-CV, 1998 WL 726479, at *5–*6 (Tex. App.—Houston [14th Dist.] Oct.

15, 1998, no pet.) (mem. op., not designated for publication).

      We hold that the trial court lacked subject matter jurisdiction over both

Goss’s TCHRA claim and his Title VII claim.

                                Dismissal with Prejudice

      In his third issue, Goss argues that the City’s plea to the jurisdiction should

have been granted without prejudice. “A plea to the jurisdiction is a dilatory plea

that seeks dismissal of a case for lack of subject matter jurisdiction.” Harris Cnty.

v. Sykes, 136 S.W.3d 635, 638 (Tex. 2004). Because governmental immunity from

suit defeats the trial court’s jurisdiction, it may be raised in a plea to the


                                         13
jurisdiction. Id. In addition, because subject matter jurisdiction is essential to a

court’s power to decide a case, the absence of jurisdiction may also be raised, not

only in a plea to the jurisdiction, but by other procedural vehicles, such as a motion

for summary judgment. Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 553–54

(Tex. 2000). “In general, a dismissal with prejudice is improper [in a plea to the

jurisdiction] when the plaintiff is capable of remedying the jurisdictional defect.”

Sykes, 136 S.W.3d at 639. But if the pleadings affirmatively negate jurisdiction, a

plea to the jurisdiction may be granted without allowing the plaintiff an

opportunity to amend his petition. Tex. Dep’t of Parks & Wildlife v. Miranda, 133

S.W.3d 217, 227 (Tex. 2004); Gulf Coast Waste Disposal Auth. v. Four Seasons

Equip., Inc., 321 S.W.3d 168, 173 (Tex. App.—Houston [1st Dist.] 2010, no pet.).

Thus, when the evidence establishes that the trial court lacks subject matter

jurisdiction due to governmental immunity to suit, dismissal with prejudice is

proper. Sykes, 136 S.W.3d at 639.

      Here, the evidence establishes that the trial court lacked jurisdiction over

Goss’s claims because the statute of limitations in Labor Code section 21.256

barred his TCHRA claims; Government Code section 311.034 made the statute of

limitations jurisdictional as to Goss’s claims against the City, a governmental

entity; and Goss’s Title VII claim did not relate back to the original date of filing

of Goss’s TCHRA time-barred suit so as to create jurisdiction where none

                                         14
otherwise existed. Therefore, the trial court did not err in dismissing Goss’s suit

with prejudice.

      We overrule Goss’s third issue.

                            Granting Greater Relief

      In his first two issues, Goss argues that, by dismissing his Title VII claims,

the trial court erroneously granted greater relief than the City had requested. He

alleges, “The City’s plea to the jurisdiction does not defeat Goss’ federal claims

because the City failed to seek such relief in its April 30, 2010 filing.” He

contends, “It is axiomatic that a party may not be granted judgment as a matter of

law on a cause of action not addressed in a summary judgment proceeding.”

      Goss confuses a plea to the jurisdiction and a motion for summary judgment.

Subject matter jurisdiction is essential to the authority of the courts to decide a

case. Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 443 (Tex. 1993).

It is never presumed and cannot be waived, even when uncontested. Id. at 443–44.

Subject matter jurisdiction may be raised at any time, even for the first time on

appeal. Id. at 445. A challenge to the court’s jurisdiction may be made in the form

of a motion for summary judgment without changing the requirements for

establishing subject matter jurisdiction. See Bland, 34 S.W.3d at 553–54.

      To establish subject matter jurisdiction, a party must allege facts that

affirmatively demonstrate the court’s jurisdiction to hear the cause of action.


                                        15
Miranda, 133 S.W.3d at 226; Tex. Ass’n of Bus., 852 S.W.2d at 446; Gulf Coast

Waste Disposal Auth., 321 S.W.3d at 173. If the pleadings affirmatively negate the

existence of jurisdiction, a plea to the jurisdiction may be granted without allowing

the plaintiff an opportunity to amend. Miranda, 133 S.W.3d at 227. However, if a

plea to the jurisdiction challenges the existence of jurisdictional facts, the courts

will consider relevant evidence presented by the parties when necessary to resolve

the jurisdictional issues. Id. If the relevant evidence is undisputed or fails to raise

a fact issue as to jurisdiction, the trial court rules on the plea to the jurisdiction as a

matter of law. Id. at 228.

       We have held, on the basis of the pleadings, that, because Goss failed to

comply with a jurisdictional requirement for filing this suit against the City under

the TCHRA, the trial court had no power to act other than to determine that it

lacked jurisdiction to adjudicate that claim. See Little, 334 S.W.3d at 862. Thus,

the trial court properly dismissed Goss’s TCHRA claim with prejudice. See

Miranda, 133 S.W.3d at 227. We have also held that Goss’s Title VII claim was

likewise time-barred, did not relate back to the filing date of Goss’s TCHRA claim,

and could not create jurisdiction over Goss’s time-barred employment

discrimination claims.       See EcoProduct Solutions, 2011 WL 2624003, at *7.

Therefore, because Goss’s pleadings affirmatively demonstrated the court’s lack of




                                            16
subject matter jurisdiction over both his TCHRA and his Title VII claim, dismissal

of his suit with prejudice was proper.2

      Thus, the trial court could not properly have taken any action on Goss’s suit

other than to enter its final order of dismissal with prejudice.

                                     Conclusion

      We affirm the trial court’s order granting the City of Houston’s plea to the

jurisdiction and dismissing the case with prejudice.




                                                Evelyn V. Keyes
                                                Justice

Panel consists of Justices Keyes, Higley, and Massengale.

Higley, J., dissenting.




2
      The dissent also addresses the issue of whether there is sufficient evidence to show
      that Goss did not timely serve his amended petition containing the Title VII claim.
      We need not resolve this issue, as we have already concluded that the trial court
      lacked subject matter jurisdiction over the Title VII claim. See Tex. Ass’n of Bus.
      v. Tex. Air Control Bd., 852 S.W.2d 440, 444 (Tex. 1993) (holding that subject
      matter jurisdiction is required to invoke power of trial court to decide claim).
                                           17
