MISSION CONSOL. INDEPENDENT SCH. v. Garcia, 13-09-00458-CV.

• Court: Court of Appeals of Texas
• Writing for the Court: Justices RODRIGUEZ, GARZA, and BENAVIDES
• Citation: 314 S.W.3d 548
• Parties: MISSION CONSOLIDATED INDEPENDENT SCHOOL DISTRICT, Appellant, v. Gloria GARCIA, Appellee.
• Docket Number: No. 13-09-00458-CV.,13-09-00458-CV.
• Decision Date: 27 May 2010

314 S.W.3d 548

MISSION CONSOLIDATED INDEPENDENT SCHOOL DISTRICT, Appellant,
v.
Gloria GARCIA, Appellee.

No. 13-09-00458-CV.

Court of Appeals of Texas, Corpus Christi-Edinburg.

May 27, 2010.

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David P. Hansen, Eric E. Munoz, Schwartz & Eichelbaum, Austin, for Appellant.

Savannah L. Robinson, Danbury, for Appellee.

Before Justices RODRIGUEZ, GARZA, and BENAVIDES.

OPINION ON REHEARING

Opinion on Rehearing by Justice GARZA.

We grant the motion for rehearing filed by appellant, Mission Consolidated Independent School District (the "District"), vacate and withdraw our previous opinion and judgment dated January 28, 2010, and issue this opinion in its place.

In this accelerated interlocutory appeal, the District challenges the trial court's denial of a plea to the jurisdiction in favor of appellee, Gloria Garcia. By four issues,

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which can be properly categorized as three, the District argues that the trial court erred in denying its plea to the jurisdiction because: (1) Garcia failed to present evidence to raise a fact issue in response to its plea based on the absence of jurisdictional facts; (2) Garcia's lawsuit was not timely filed under the Texas Commission on Human Rights Act ("TCHRA"), see TEX.LAB.CODE ANN. § 21.254 (Vernon 2006); and (3) the District is not an "employer" within the context of the TCHRA, and, thus, there is no waiver of sovereign immunity. We affirm in part and reverse and render in part

I. BACKGROUND

Initially, this case involved three terminated school-district employees—Garcia, Melinda Sotuyo, and Deborah Medina— who filed separate lawsuits against the District and its superintendent, H.F. "Jackie" Dyer, alleging violations of the TCHRA and various common-law claims.¹ See Mission Consol. Indep. Sch. Dist. v. Garcia, 166 S.W.3d 902, 903 (Tex.App.-Corpus Christi 2005), aff'd in part, rev'd in part, 253 S.W.3d 653 (Tex.2008). The District filed a plea to the jurisdiction in each case asserting immunity under section 101.106 of the Texas Tort Claims Act, and the trial court denied the District's pleas. See TEX. CIV. PRAC. & REM.CODE ANN. § 101.106 (Vernon 2005). On original submission to this Court, the cases were consolidated. We affirmed the trial court's denial of the pleas, concluding that section 101.106 of the Texas Tort Claims Act did not apply to the underlying claims. See Garcia, 166 S.W.3d at 905.

On further appeal, the supreme court concluded that: (1) the Texas Tort Claims Act's election-of-remedies provision governs all lawsuits filed against a governmental unit; (2) the employees' common-law claims against the District and the superintendent were barred by the Texas Tort Claims Act's election-of-remedies provision; and (3) the Texas Tort Claims Act's election scheme did not bar the employees' recovery under the TCHRA "because the Legislature has consented to suits against the government under the TCHRA ... and a suit that is based on the TCHRA is not one brought under the Texas Tort Claims Act." Garcia, 253 S.W.3d at 654, 660-61 (stating, in particular, that "while this Court has not previously addressed the issue, all the courts of appeals that have considered it have concluded that the TCHRA clearly and unambiguously waives immunity, and we agree.... In this case... Garcia's TCHRA claims against the ISD survive").

On remand, the District filed another plea to the jurisdiction² contending that:

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(1) Garcia failed to present evidence to raise a fact issue in response to its plea based on the absence of jurisdictional facts; (2) Garcia failed to comply with the notice provisions contained in the TCHRA, see TEX. LAB.CODE ANN. § 21.254; and (3) the District is not an "employer" within the context of the TCHRA, and, therefore, the trial court lacked subject matter jurisdiction over Garcia's claims. See id. § 21.002(8) (Vernon Supp.2009). After a hearing, the trial court denied the District's plea to the jurisdiction. Thereafter, the District filed a request for findings of fact and conclusions of law. The trial court did not issue any fact findings or conclusions; this accelerated interlocutory appeal ensued. See TEX.R.APP. P. 28.1; see also TEX. CIV. PRAC. & REM.CODE ANN. §§ 51.014(a)(8) (Vernon 2008), 101.001(3)(B) (Vernon 2005)

II. STANDARD OF REVIEW

A plea to the jurisdiction is a dilatory plea used to defeat a cause of action without regard to whether the claims asserted have merit. Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex.2000). The plea challenges the trial court's subject matter jurisdiction. Id.; see Tex. Dep't of Transp. v. Jones, 8 S.W.3d 636, 638 (Tex.1999). Whether a trial court has subject matter jurisdiction and whether the pleader has alleged facts that affirmatively demonstrate the trial court's subject matter jurisdiction are questions of law that we review de novo. Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex.2004); Tex. Natural Res. Conservation Comm'n v. IT-Davy, 74 S.W.3d 849, 855 (Tex.2002).

The plaintiff has the burden to plead facts affirmatively showing that the trial court has jurisdiction. Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 446 (Tex.1993); Univ. of N. Tex. v. Harvey, 124 S.W.3d 216, 220 (Tex.App.-Fort Worth 2003, pet. denied). We construe the pleadings liberally in favor of the pleader, look to the pleader's intent, and accept as true the factual allegations in the pleadings. See Miranda, 133 S.W.3d at 226, 228; City of Fort Worth v. Crockett, 142 S.W.3d 550, 552 (Tex.App.-Fort Worth 2004, pet. denied). If a plea to the jurisdiction challenges the existence of jurisdictional facts, we consider relevant evidence submitted by the parties when necessary to resolve the jurisdictional issues raised, as the trial court is required to do, even those facts which may implicate the merits of the cause of action. Miranda, 133 S.W.3d at 227; Blue, 34 S.W.3d at 555 (confining evidentiary review to evidence that is relevant to the jurisdictional issue); see City of Waco v. Kirwan, 298 S.W.3d 618, 622 (Tex.2009).

A trial court's review of a plea to the jurisdiction challenging the existence of jurisdictional facts mirrors that of a traditional motion for summary judgment. Miranda, 133 S.W.3d at 228; see TEX.R. CIV. P. 166a(c). The governmental unit is required to meet the summary judgment standard of proof for its assertion that the trial court lacks jurisdiction. Miranda, 133 S.W.3d at 228. Once the governmental unit meets its burden, the plaintiff is then required to show that there is a disputed material fact regarding the jurisdictional issue. Id. If the evidence creates a fact question regarding jurisdiction, the

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trial court must deny the plea to the jurisdiction and leave its resolution to the fact finder. Id. at 227-28. But, if the evidence is undisputed or fails to raise a fact question on the jurisdictional issue, the trial court rules on the plea to the jurisdiction as a matter of law. Id. at 228.

"In considering this evidence, we `take as true all evidence favorable to the nonmovant' and `indulge every reasonable inference and resolve any doubts in the nonmovant's favor.'" Kirwan, 298 S.W.3d at 622 (quoting Miranda, 133 S.W.3d at 228). Further, a defendant cannot simply deny the existence of jurisdictional facts and force the plaintiff to raise a fact issue. See Johnson v. Brewer & Pritchard, P.C., 73 S.W.3d 193, 207 (Tex.2002); see also County of Cameron v. Brown, 80 S.W.3d 549, 555 (Tex.2002) ("In deciding a plea to the jurisdiction, a court may not weigh the claims' merits but must consider only the plaintiffs' pleadings and evidence pertinent to the jurisdictional inquiry.").

III. DISCUSSION

A. Whether Garcia Failed to Raise a Fact Issue as to Jurisdictional Facts

In its first issue, the District contends that Garcia presented no evidence to raise a fact issue in response to its plea to the jurisdiction based on the absence of jurisdictional facts. The District argues that it conclusively disproved essential elements of each of Garcia's causes of action based on the evidence it presented to the trial court. Garcia counters that her pleadings sufficiently invoke the subject matter jurisdiction of the trial court and that the trial court's denial of the District's plea to the jurisdiction was proper because the District is attempting to resolve the underlying merits of the case, which is an inappropriate use of a plea to the jurisdiction.

In her original petition, Garcia noted that she first began working for the District in October 1976, and "performed all the duties assigned to her with loyalty, dedication, and hard work." However, on or about February 19, 2003, she was "wrongfully discharged by a management employee of the District for illegal and discriminatory reasons, including, but not limited to, participating in an investigation involving another district employee ... and for exercising her protected right to freedom of association." Garcia further alleged that "she was discriminated against by the Defendant School District due to her race and national origin, namely—Hispanic/Mexican-American descent, gender—female, and due to her age, 48 (d.o.b.—06/15/1954)" and that "her termination was part of a larger unwritten plan or scheme of the Defendant School District to discriminate against older Hispanic female employees who were politically associated with persons adverse to the Administration." Garcia also stated that "there was no legitimate business justification for her termination" because she "had always performed a satisfactory job for the Defendant during her employment," that "there was work available and there continues to be work available which Garcia could perform," and that she had fulfilled all statutory prerequisites before filing this action.

In response to Garcia's original petition, the District filed...