      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-17-00521-CV



                                       Pat Free, Appellant

                                                 v.

       Granite Publications, L.L.C., and Granite Publishing Partners, Inc., Appellees


   FROM THE DISTRICT COURT OF TOM GREEN COUNTY, 51ST JUDICIAL DISTRICT
      NO. A160295C, HONORABLE BARBARA L. WALTHER, JUDGE PRESIDING



                                          OPINION


               Pat Free appeals from the trial court’s order granting the plea to the jurisdiction of

Granite Publications, L.L.C., and Granite Publishing Partners, Inc. (jointly, Granite) and dismissing

Free’s claims for lack of subject matter jurisdiction. Free sued Granite for age discrimination

pursuant to chapter 21 of the Texas Labor Code, commonly known as the Texas Commission on

Human Rights Act (TCHRA).1 See generally Tex. Labor Code §§ 21.001–.556; see also id. § 21.051

(Discrimination by Employer). Granite filed a plea to the jurisdiction seeking dismissal of Free’s

suit for failure to exhaust administrative remedies, specifically Free’s failure to file a charge of




       1
          In 2004, the Texas Commission on Human Rights (TCHR) was replaced with the Texas
Workforce Commission civil rights division (TWC). See Tex. Lab. Code § 21.0015. Nonetheless,
courts continue to refer to chapter 21 as the Texas Commission on Human Rights Act or TCHRA.
See Prairie View A&M Univ. v. Chatha, 381 S.W.3d 500, 503 n.1 (Tex. 2012). We likewise refer
to chapter 21 as the TCHRA.
discrimination within the 180-day statutory deadline after the alleged unlawful employment practice

occurred. See id. § 21.202(a). For the reasons that follow, we affirm the trial court’s order.


                                         BACKGROUND

               Free was terminated from her employment with Granite on January 15, 2015. On

September 24, 2015, she filed a charge of discrimination with the Equal Employment Opportunity

Commission (EEOC).2 In May 2016, Free filed suit against Granite alleging age discrimination

under the TCHRA. See id. § 21.051(a) (providing in relevant part that discharge on basis of age is

unlawful employment practice). Granite filed a plea to the jurisdiction seeking dismissal of Free’s

claims on the ground that she had failed to exhaust her administrative remedies by failing to file her

charge of discrimination within the 180-day deadline set out in section 21.202(a) of the TCHRA.

See id. § 21.202(a) (providing that complaint must be filed no later than 180th day after date of

alleged unlawful employment practice). Free filed a response. After a hearing, the trial court granted

Granite’s plea to the jurisdiction and dismissed Free’s claims for lack of subject matter jurisdiction.

This appeal followed.




       2
          In 1998, in a Worksharing Agreement to be amended annually, the TCHR designated the
EEOC as its limited agent for the purpose of receiving charges, and an initial complaint filed with
the EEOC is also considered filed with TWC. Vielma v. Eureka Co., 218 F.3d 458, 462–63 (5th Cir.
2000); Texas Tech Univ. v. Finley, 223 S.W.3d 510, 513 n.4 (Tex. App.—Amarillo 2006, no pet.).
Thus, a claimant may file a complaint with either the EEOC or the TWC. See 40 Tex. Admin. Code
§ 819.41(c) (2017) (Tex. Workforce Comm’n, Filing a Complaint) (providing that complaint may
be filed with TWC or with EEOC); Chatha, 381 S.W.3d at 504 n.4.


                                                  2
                                            DISCUSSION

                 In two issues, Free argues that the trial court erred in dismissing her claims because

the 180-day deadline for filing a charge of discrimination, while mandatory, is not jurisdictional and

the trial court therefore did not lack subject matter jurisdiction.3 Some courts have expressed

uncertainty about whether failure to exhaust administrative remedies under the TCHRA is still

treated as a jurisdictional bar to civil suit. See, e.g., Alviar v. Macy’s, Inc., No. 3:16-CV-1633-D,

2017 U.S. Dist. LEXIS 172796, at *6 n.5 (N.D. Tex. Oct. 19, 2017) (reviewing Texas cases that

make it “unclear whether, under Texas law, exhaustion of remedies is still treated as ‘jurisdictional’”

and concluding that it is jurisdictional); Reid v. SSB Holdings, Inc., 506 S.W.3d 140, 143–47 (Tex.

App.—Texarkana 2016, pet. denied) (reviewing cases and noting uncertainty but not reaching issue);

Yeh v. Chesloff, 483 S.W.3d 108, 113 (Tex. App.—Houston [1st Dist.] 2015, pet. denied) (observing

that there are questions about whether failure to satisfy chapter 21’s administrative exhaustion

requirement implicates trial court’s jurisdiction in suit between private parties). To place Free’s

arguments in context, we first review the jurisprudence behind the uncertainty some courts

have noted.

                 For decades prior to 2000, Texas courts followed the rule set out in Mingus v. Wadley

that statutory prerequisites to suit are mandatory and jurisdictional. See Prairie View A&M Univ.

v. Chatha, 381 S.W.3d 500, 510 (Tex. 2012) (reviewing Texas Supreme Court precedent concerning

statutory prerequisites and explaining Mingus); Mingus, 285 S.W. 1084, 1087 (Tex. 1926) (holding

that strict compliance with statutory prerequisites was necessary to vest trial court with jurisdiction).


        3
            Free does not dispute that she failed to file her complaint within the 180-day deadline.

                                                   3
The Texas Supreme Court applied this rule to chapter 21 in 1991 when it held that both the 180-day

deadline for filing a charge of discrimination, see Tex. Lab. Code § 21.202(a), and the two-year

deadline for filing suit, see id. § 21.256, are jurisdictional. See Schroeder v. Texas Iron Works, Inc.,

813 S.W.2d 483, 486, 487 n.10 (Tex. 1991), overruled in part by In re United Servs. Auto. Ass’n,

307 S.W.3d 299, 310 (Tex. 2010) (USAA). Following Schroeder, the Texas Supreme Court again

held in 1996 that the 180-day deadline is jurisdictional. See Johnson & Johnson Med., Inc. v.

Sanchez, 924 S.W.2d 925, 929 n.3 (Tex. 1996); Specialty Retailers v. DeMoranville, 933 S.W.2d 490,

492 (Tex. 1996) (per curiam). In 2000, however, in a case involving private parties, the Supreme

Court overruled Mingus “to the extent that it characterized the plaintiff's failure to establish a

statutory prerequisite as jurisdictional.” Dubai Petroleum Co. v. Kazi, 12 S.W.3d 71, 76 (Tex.

2000). In doing so, the Dubai court noted the “modern direction of policy . . . to reduce

the vulnerability of final judgments to attack on the ground that the tribunal lacked subject

matter jurisdiction.” Id.; see also Chatha, 381 S.W.3d at 510–11 (reviewing precedent and

explaining Dubai).

                “Because Dubai involved private litigants, courts of appeals struggled with its

application to cases against governmental defendants, citing the apparent dichotomy [between]

Dubai’s holding [and] the basic tenets of sovereign immunity and [the Supreme Court’s] treatment

of the doctrine in statutory causes of action.” Chatha, 381 S.W.3d at 511. In 2004, the Texas

Supreme Court extended its holding in Dubai to governmental entities. See University of Tex. Sw.

Med. Ctr. v. Loutzenhiser, 140 S.W.3d 351, 359, 364 (Tex. 2004), superseded by statute, Tex. Gov’t

Code § 311.034. The Loutzenhiser court reasoned that because pre-suit notice was not a condition



                                                   4
of the statute’s waiver of immunity, failure to provide notice was not a jurisdictional defect.

See id. at 365; Chatha, 381 S.W.3d at 511. In 2005, in response to Loutzenhiser, the Legislature

amended section 311.034 of the Texas Government Code, entitled Waiver of Sovereign Immunity,

to make notice requirements and all other statutory prerequisites to suit jurisdictional as to

governmental entities. See Tex. Gov’t Code § 311.034; Chatha, 381 S.W.3d at 511 (“This

amendment 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.”).

                In 2010, in a case involving private litigants, the Texas Supreme Court again

addressed the statute of limitations under chapter 21. See USAA, 307 S.W.3d 299. The USAA court

reconsidered whether the two-year deadline for filing suit under section 21.256 is jurisdictional in

light of its holding in Dubai that statutory prerequisites in suits between private litigants are not

jurisdictional. Id. at 305–10. In evaluating the jurisdictional nature of the statute, the court

considered the statutory language, the statute’s purpose, and the consequences of each interpretation.

Id. at 307–10. “In keeping with the statute’s language, Dubai and subsequent cases, as well as the

purposes behind TCHRA and federal interpretations of Title VII,” the court concluded that the

two-year deadline for filing suit under the TCHRA was not jurisdictional and overruled Schroeder

to the extent it held to the contrary. Id. at 310.4


        4
           After the Texas Supreme Court issued its decision in USAA, this Court, sua sponte,
withdrew its prior opinion in a case involving a governmental entity and issued a new opinion
addressing the Texas Supreme Court’s holding in USAA. See Lueck v. State, 325 S.W.3d 752,
759–60 (Tex. App.—Austin 2010, pet. denied). The Court observed that the Texas Supreme Court
“treats the failure to exhaust the TCHRA’s administrative remedies as a jurisdictional defect,”
id. at 762, and concluded that “‘unless and until the supreme court departs from its view in
Schroeder that the [TCHRA] requires exhaustion of remedies, we will continue to treat the 180-day

                                                      5
               In 2012, the Supreme Court revisited the 180-day deadline for filing a charge of

discrimination under section 21.202(a). See Chatha, 381 S.W.3d 500. Because the case involved

a governmental defendant, the court followed the directive of the Legislature in amended section

311.034 of the Government Code. Id. at 514–15. Thus, the court determined that section 21.202(a)

is a mandatory statutory prerequisite and held that because Chatha had failed to file her complaint

in accordance with section 21.202(a), her suit against the university was jurisdictionally barred. Id.

Significantly, the court expressly did not decide whether section 21.202 itself, which contains the

180-day deadline for filing a complaint, is jurisdictional. See id. at 510 n.15. The dissent in Chatha

pointed out that in USAA, the court had already overruled its decision in Schroeder that the two-year

deadline for filing suit in chapter 21 is jurisdictional and urged that the court should “put the final

nail in Schroeder’s statute-of limitations coffin” and overrule its holding in Schroeder that the

180-day deadline for filing the complaint is jurisdictional. Id. at 519 (Jefferson, J., dissenting). In

response to the dissent, the majority emphasized that the defendant was a governmental entity and

that its decision was governed by the Legislature’s “straightforward mandate” in amended section

311.034 of the Government Code that statutory prerequisites are jurisdictional as to governmental

entities. Id. at 514–16.

               Since Chatha, this Court and other courts of appeal have followed its holding that the

180-day deadline is a statutory prerequisite that is jurisdictional in cases involving defendants that




filing requirement as ‘mandatory and jurisdictional,’” id. at 763 (quoting Texas Dep’t of Protective
& Regulatory Servs. v. Lynn, No. 03-04-00635-CV, 2005 Tex. App. LEXIS 6682, at *14 (Tex.
App.—Austin Aug. 19, 2005, pet. denied) (mem. op.) (quoting Specialty Retailers v. DeMoranville,
933 S.W.2d 490, 492 (Tex. 1996) (per curiam)).

                                                  6
are governmental entities. See, e.g., Alamo Cmty. Coll. Dist. v. Ryan, No. 04-17-00196-CV,

2017 Tex. App. LEXIS 10250, at *5, *11 (Tex. App.—San Antonio Nov. 1, 2017, no pet. h.) (mem.

op.) (“Ryan’s failure to file a claim with the TWC or EEOC within 180 days deprived the trial court

of jurisdiction over Ryan’s claims under the TCHRA.”); Texas A&M Univ. v. Starks, 500 S.W.3d 560,

568 (Tex. App.—Waco 2016, no pet.) (“The timely filing of a complaint [under the TCHRA]

is mandatory, and when the defendant is a governmental entity, the failure to timely file

is a jurisdictional bar to suit.”); Gilles-Gonzalez v. University of Tex. Sw. Med. Ctr.,

No. 05-16-00078-CV, 2016 Tex. App. LEXIS 7845, at *1, *22 (Tex. App.—Dallas July 22, 2016,

no pet.) (mem. op.) (“Because her charge was not filed by ‘the 180th day after the date the alleged

unlawful employment practice occurred,’ Gilles-Gonzalez failed to exhaust her administrative

remedies, and the trial court had no jurisdiction of her claim.”); Harris Cty. Hosp. Dist. v. Parker,

484 S.W.3d 182, 193 (Tex. App.—Houston [14th Dist] 2015, no pet.) (“Because the evidence

conclusively establishes that Parker filed his EEOC charge more than 180 days after he was

denied promotions, the trial court erred in denying the District’s plea to the jurisdiction as to

Parker’s failure-to-promote claim.”); Austin Indep. Sch. Dist. v. Lofters, No. 03-14-00071-CV,

2015 Tex. App. LEXIS 3115, at *6–7, *15 (Tex. App.—Austin Apr. 1, 2015, pet. denied) (mem. op.)

(“We hold that Lofters’s charge of race discrimination was not filed within the 180-day period

required by section 21.202(a). The trial court did not have jurisdiction over this claim and erred by

denying AISD’s plea to the jurisdiction.”).

               This and other appellate courts also have—without elaboration and without expressly

distinguishing between governmental and private defendants—applied the Schroeder rule that



                                                 7
section 21.202(a)’s 180-day deadline is jurisdictional in suits involving private litigants.

See, e.g., Gladden-Green v. Freescale Semiconductor, Inc., No. 03-11-00468-CV, 2013 Tex. App.

LEXIS 14168, at *1, *10, *14, *27 (Tex. App.—Austin Nov. 20, 2013, no pet.) (mem. op.) (stating

that failure to timely file complaint deprives court of subject matter jurisdiction, concluding that

complaint was untimely, and affirming summary judgment in favor of private employer); ATI

Enters., Inc. v. Din, 413 S.W.3d 247, 251, 254 (Tex. App.—Dallas 2013, no pet.) (concluding that

there was no evidence that Din had claimed retaliation in his complaint against private employer and

that trial court lacked jurisdiction over that claim); Floersheim v. Motiva Enters., LLC,

No. 09-12-00229-CV, 2013 Tex. App. LEXIS 3961, at *1–2, *6, *14 (Tex. App.—Beaumont

Mar. 28, 2013, no pet.) (mem. op.) (affirming summary judgment in favor of private employer on

jurisdictional ground that employee did not timely file complaint); Williams-Pyro, Inc. v. Barbour,

408 S.W.3d 467, 470, 475–76 (Tex. App.—El Paso 2013, pet. denied) (citing rule that failure to

exhaust administrative remedies under TCHRA, beginning with filing of complaint, deprives court

of subject matter jurisdiction and concluding that trial court did not lack jurisdiction where timely

complaint was sufficient to put private employer on notice of claim for age discrimination); Dotson

v. TPC Group, Inc., No. 01-14-00233-CV, 2015 Tex. App. LEXIS 2385, at *12, 15 (Tex.

App.—Houston [1st Dist.] Mar. 12, 2015, no pet.) (mem. op.) (stating generally that “[f]ailure to

timely file an administrative complaint deprives Texas trial court of subject-matter jurisdiction” and

holding that because Dotson filed complaint against private employer more than 180 days after

alleged retaliation, trial court lacked jurisdiction over that claim). But see Yeh, 483 S.W.3d at 113

(where trial court denied plea to jurisdiction and case proceeded to trial, framing issue on appeal of



                                                  8
timeliness of complaint as defense to liability, rather than as jurisdictional bar, in light of “questions”

raised by Chatha “about whether the failure to satisfy Chapter 21’s administrative exhaustion

requirement implicates trial court jurisdiction in a suit between private parties.”)

                In this context, then, we return to Free’s arguments. Free’s briefing reviews the Texas

Supreme Court’s rulings relevant to this issue, including those in Mingus, Schroeder, USAA, Dubai,

and Chatha. She also cites Zipes v. Trans World Airlines, Inc., in which the U.S. Supreme Court

held that filing a timely charge of discrimination under Title VII with the EEOC is not a

jurisdictional prerequisite to suit. See 455 U.S. 385, 393 (1982). Free argues that while compliance

with chapter 21’s 180-day deadline was not before the court in USAA, the logic and case law the

Texas Supreme Court used to overrule Schroeder as to the jurisdictional nature of the two-year

deadline for filing suit apply equally to the jurisdictional nature of the 180-day deadline. Free urges

that this Court follow the reasoning in Chief Justice Jefferson’s dissent in Chatha and extend the

reasoning in USAA to the 180-day deadline for filing an administrative complaint, effectively

overruling and “put[ting] the final nail in Schroeder’s statute-of-limitations coffin.” See Chatha,

381 SW.3d at 519.

                In short, Free asks us to do what the Texas Supreme Court has declined to do.

See Chatha, 381 S.W.3d at 500 n.15. Because this case does not involve a governmental defendant,

the Supreme Court’s holding in Chatha is not determinative. See id. at 514–15. In cases involving

private litigants, the Texas Supreme Court’s current directive on this issue is contained in Schroeder,

813 S.W.2d at 486, and cases following its holding, see, e.g., Sanchez, 924 S.W.2d at 929 n.3;

Specialty Retailers, 933 S.W.2d at 492. Perhaps, as Chief Justice Jefferson predicted in his Chatha



                                                    9
dissent, some day soon a case will squarely present to the Texas Supreme Court a request to apply

the Schroeder language to characterize the 180-day deadline as jurisdictional, and perhaps the court

will decline to do so. See Chatha, 381 S.W.3d at 522 (Jefferson, J., dissenting). Unless and until

that occurs, absent a clear holding from the Texas Supreme Court departing from the view stated in

Schroeder, or a statutory directive from the Legislature, we are bound by existing precedent.

See Lubbock Cty. v. Trammel’s Lubbock Bail Bonds, 80 S.W.3d 580, 585 (Tex. 2002) (“It is not the

function of a court of appeals to abrogate or modify established precedent. That function lies solely

with [the Texas Supreme] Court.” (citations omitted)); City of New Braunfels v. Stop the Ordinances

Please, 520 S.W.3d 208, 224 (Tex. App.—Austin 2017, pet. filed) (“‘[A]s an intermediate appellate

court, we are not free to mold Texas law as we see fit but must instead follow the precedents of the

Texas Supreme Court unless and until the high court overrules them or the Texas Legislature

supersedes them by statute.’” (quoting Petco Animal Supplies, Inc. v. Schuster, 144 S.W.3d 554, 565

(Tex. App.—Austin 2004, no pet.))). For now, we are compelled to hold that the district court

lacked subject matter jurisdiction over Free’s claims. See Stop the Ordinances, 520 S.W.3d at 224;

But cf. Chatha, 381 S.W.3d at 518 (Jefferson, J., dissenting) (observing that failure to comply with

statutory requisite generally goes to right to maintain suit and whether plaintiff is entitled to seek

relief, as opposed to jurisdiction of court to order relief requested) (quoting Dubai, 12 S.W.3d 3d at

76–77). We therefore conclude that the trial court did not err in granting Granite’s plea to the

jurisdiction. We overrule Free’s issues.




                                                 10
                                         CONCLUSION

                Having overruled Free’s issues, we affirm the trial court’s order granting Granite’s

plea to the jurisdiction.



                                              __________________________________________
                                              Melissa Goodwin, Justice

Before Chief Justice Rose, Justices Pemberton and Goodwin

Affirmed

Filed: July 25, 2018




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