City of Houston v. Adaeze Shavon Meka, Christopher John Closure and Jamarcus Ward

• Court: Court of Appeals of Texas
• Decided: April 25, 2023
• Docket: 01-22-00002-CV
• Status: Published

Opinion

Opinion issued April 25, 2023

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-22-00002-CV ——————————— CITY OF HOUSTON, Appellant V. ADAEZE SHAVON MEKA, Appellee

On Appeal from the 129th District Court Harris County, Texas Trial Court Case No. 2018-76033

OPINION

The City of Houston (the City) appeals from the trial court’s denial of its

motion for summary judgment. Appellee Adaeze Shavon Meka brought suit against

the City pursuant to the Texas Tort Claims Act (the TTCA) for injuries she sustained

in a car accident involving a vehicle driven by a City employee. See TEX. CIV. PRAC. & REM. CODE § 101.021(1) (waiving sovereign immunity for personal-injury claims

caused by negligence of governmental employee, acting within scope of his

employment in operating motor-driven vehicle, if that employee would be

personally liable to claimant). The City moved for summary judgment alleging that

because Meka failed to serve the City with citation before the running of the

applicable statute of limitations, and because compliance with statutes of limitations

is jurisdictional in suits against a governmental entity, the trial court lacked subject-

matter jurisdiction. See TEX. GOV’T CODE § 311.034 (“Statutory prerequisites to a

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

against a governmental entity.”). The trial court denied the motion for summary

judgment, and the City filed this interlocutory appeal. See TEX. CIV. PRAC. & REM.

CODE § 51.014(a)(8).

We affirm.

Background

This suit arises from a May 7, 2018 motor vehicle collision involving Meka,

Christopher John Closure, Jamarcus Ward,1 and Jean Alphone Dorelus, a City

1 Closure and Ward separately sued the City and Meka, and their lawsuit was eventually consolidated with Meka’s later-filed lawsuit against the City and Dorelus. The trial court granted the City’s motion to dismiss Dorelus under Section 101.106(e) of the TTCA. See TEX. CIV. PRAC. & REM. CODE § 101.106(e) (“If a suit is filed under this chapter against both a governmental unit and any of its employees, the employees shall immediately be dismissed on the filing of a motion by the governmental unit.”). Closure and Ward are not parties to this appeal. 2 employee who was driving a City-owned vehicle at the time of the accident. On

December 13, 2019, within the applicable two-year statute of limitations, Meka sued

the City and Dorelus, alleging that she suffered personal injuries as a result of the

accident. See id. § 16.003(a) (“[A] person must bring suit for . . . personal injury . . .

not later than two years after the day the cause of action accrues.”). The City was

never served with citation for Meka’s original petition.

On January 7, 2021, Meka filed her first amended petition, alleging claims for

personal injuries against Dorelus and the City under the TTCA based on the accident.

Meka served the City with citation on January 11, 2021, eight months after the

expiration of the two-year statute of limitations. The City answered and asserted a

general denial as well as affirmative defenses, including immunity from suit.

On January 22, 2021, the City moved for traditional summary judgment on

limitations and immunity. Specifically, the City argued that Meka’s claims should

be dismissed because she failed to serve the City with citation before the applicable

limitations period had expired. Meka responded, arguing that she exercised diligence

in attempting to serve the City and, alternatively, the Texas Supreme Court’s

Emergency Orders issued in response to the COVID-19 pandemic tolled the

applicable statute of limitations until June 1, 2021. Because she filed and served the

City before June 1, 2021, Meka argued that she complied with the limitations period

and that the trial court should deny the City’s motion for summary judgment.

3 The trial court held an oral hearing on the City’s motion for summary

judgment on December 10, 2021, and denied the City’s motion the same day. On

December 30, 2021, the City filed this timely interlocutory appeal.

Appellate Jurisdiction

In her response brief, Meka contends that we lack appellate jurisdiction

because compliance with the TTCA’s statute of limitations is not jurisdictional. The

City’s summary judgment, according to Meka, did not raise a jurisdictional issue

and the City’s appeal therefore is not authorized under Texas Civil Practice and

Remedies Code Section 51.014(a)(8). Because this question implicates our appellate

jurisdiction, we consider it first.

The City filed its motion for summary judgment, in which it raised the issue

of governmental immunity based on Meka’s failure to serve the City with citation

within the two-year limitations period applicable to Meka’s TTCA claims. See TEX.

CIV. PRAC. & REM. CODE § 16.003(a). Section 51.014(a)(8) of the Texas Civil

Practice and Remedies Code authorizes an interlocutory appeal from the “grant[] or

deni[al] [of] a plea to the jurisdiction by a governmental unit[.]” Id. § 51.014(a)(8).

Because the City’s motion for summary judgment raised the issue of immunity,

regardless of whether the motion was styled as a plea to the jurisdiction and

regardless of whether we ultimately conclude that the City was entitled to dismissal

based on immunity, we have appellate jurisdiction to hear the City’s appeal. See

4 PHI, Inc. v. Tex. Juv. Just. Dep’t, 593 S.W.3d 296, 301 n.1 (Tex. 2019) (holding

appellate court had jurisdiction over appeal from denial of combined plea to

jurisdiction and motion for summary judgment, regardless of how pleading was

styled, because substance of pleading raised sovereign immunity, which implicates

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

(“If the trial court denies the governmental entity’s claim of no jurisdiction, whether

it has been asserted by a plea to the jurisdiction, a motion for summary judgment, or

otherwise, the Legislature has provided that an interlocutory appeal may be

brought.”); Tex. Dep’t of Crim. Just. v. Simons, 140 S.W.3d 338, 349 (Tex. 2004)

(“The reference to ‘plea to the jurisdiction’ [in Section 51.014] is not to a particular

procedural vehicle but to the substance of the issue raised. Thus, an interlocutory

appeal may be taken from a refusal to dismiss for want of jurisdiction whether the

jurisdictional argument is presented by plea to the jurisdiction or some other vehicle,

such as a motion for summary judgment.”).

We turn to the merits of the City’s appeal.

Sovereign Immunity and Statute of Limitations

The City argues that the trial court erred by refusing to dismiss Meka’s claims

despite Meka failing to exercise diligence in serving the City with citation within the

applicable limitations period. Meka responds that compliance with the statute of

limitations and service of citation is not jurisdictional and, even if it was, the Texas

5 Supreme Court’s Emergency Orders issued in response to the COVID-19 pandemic

extended the statute of limitations.

A. Standard of Review

“Sovereign immunity bars suits against the state and its entities, and this

immunity remains intact unless surrendered in express and unequivocal terms by a

clear and unambiguous statutory waiver.” Prairie View A&M Univ. v. Chatha, 381

S.W.3d 500, 512 (Tex. 2012). Meka pleaded her case under the TTCA, which waives

sovereign immunity for personal-injury claims caused by the negligence of an

employee, acting within the scope of his employment in operating a motor-driven

vehicle, if that employee would be personally liable to the claimant. See TEX. CIV.

PRAC. & REM. CODE § 101.021(1). Section 311.034 of the Code Construction Act,

set forth in the Government Code, specifies that “[s]tatutory prerequisites to a suit,

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

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

“[I]t is the Legislature’s function to determine what steps a litigant must take

before the state’s immunity is waived.” Chatha, 381 S.W.3d at 513. The Legislature

“establishes the timeline for filing suit and the mandatory tasks that must be

completed before filing.” Id. at 514. It is “within the Legislature’s discretion to

determine the procedures required before the State’s immunity is waived.” Id. at 513.

“[A] statutory provision that is mandatory and must be complied with before filing

6 suit is sufficient to fall within the ambit of section 311.034.” Id. at 514 (emphasis

added). In a statutory cause of action against a governmental entity, like this TTCA

suit against the City, failure to comply with the statute’s mandatory provisions that

must be accomplished before filing suit is a jurisdictional bar to suit. See id. at 511,

512.

Sovereign immunity implicates a court’s subject-matter jurisdiction, and

because subject-matter jurisdiction is a question of law, we review the trial court’s

ruling on the City’s motion for summary judgment de novo. See Ben Bolt-Palito

Blanco Consol. Indep. Sch. Dist. v. Tex. Pol. Subdivs. Prop./Cas. Joint Self-Ins.

Fund, 212 S.W.3d 320, 323 (Tex. 2006); City of Houston v. McGriff, No. 01-21-

00487-CV, 2022 WL 17684046, at *6 (Tex. App.—Houston [1st Dist.] Dec. 15,

2022, no pet.). Because the jurisdictional issue here involves statutory construction,

it presents a question of law that we also review de novo. See Galbraith Eng’g

Consultants, Inc. v. Pochucha, 290 S.W.3d 863, 867 (Tex. 2009). We rely on

statutory-interpretation principles to ascertain and effectuate the Legislature’s intent

as expressed by the statute’s language. Chatha, 381 S.W.3d at 511.

B. Sovereign Immunity and Jurisdictional Prerequisites to Suit

The defense of limitations is classified generally as an affirmative defense that

is not jurisdictional in nature. In re United Servs. Auto. Ass’n, 307 S.W.3d 299, 308

(Tex. 2010) (orig. proceeding). Section 311.034 of the Government Code, however,

7 provides that “[s]tatutory prerequisites to a suit, including the provision of notice,

are jurisdictional requirements in all suits against a governmental entity.” TEX.

GOV’T CODE § 311.034; see also Chatha, 381 S.W.3d at 510 (citing TEX. GOV’T

CODE § 311.034) (“The Legislature has mandated that all statutory prerequisites to

suit are jurisdictional in suits against governmental entities.”). This is true with

respect to both administrative and procedural prerequisites to suit. Specifically, the

Texas Supreme Court has clarified that “a statutory prerequisite to suit, whether

administrative (such as filing a charge of discrimination) or procedural (such as

timely filing a lawsuit) is jurisdictional when the defendant is a governmental

entity.” Chatha, 381 S.W.3d at 515 (citing TEX. GOV’T CODE § 311.034).

In Chatha, the Texas Supreme Court established a three-step test to determine

whether a condition set by statute is a jurisdictional “prerequisite to suit.” Id. at 511.

First, to fall within the purview of Section 311.034, the “prerequisite must be found

in the relevant statutory language.” Id. at 512. “Second, the prerequisite must be a

requirement.” Id. “And finally, the term ‘pre’ indicates the requirement must be met

before the lawsuit is filed.” Id. The term “statutory prerequisite” thus “refers to

statutory provisions that are mandatory and must be accomplished prior to filing

suit.” Id. Concluding that the timely filing of a lawsuit under the Texas Commission

on Human Rights Act (the TCHRA) is a jurisdictional requirement when the

defendant is a governmental entity, the Court held that the plaintiff’s failure to file

8 her discriminatory pay claim within the TCHRA’s 180-day limitations period was a

jurisdictional bar to suit. See id. at 514.

Since Chatha, the Texas Supreme Court and several courts of appeals have

found various filing deadlines to be jurisdictional requirements in suits against

governmental entities. In City of Madisonville v. Sims, 620 S.W.3d 375 (Tex. 2020),

for example, the Court held that the 90-day filing deadline under the Texas

Whistleblower Act is a jurisdictional statutory prerequisite to suit. See id. at 379.

And in AC Interests, L.P. v. Texas Commission on Environmental Quality, 543

S.W.3d 703 (Tex. 2018), the Court concluded that a statute requiring the filing of a

petition within 30 days of an adverse ruling by the Texas Commission on

Environmental Quality is jurisdictional in nature. See id. at 709; see also San Jacinto

River Auth. v. Paxton, No. 03-18-00547-CV, 2019 WL 3952829, at *3 (Tex. App.—

Austin Aug. 22, 2019, no pet.) (mem. op.) (holding requirement under Public

Information Act that party file suit seeking declaratory relief within 30 days of

receiving attorney general decision is jurisdictional); Matthews v. Colorado Cnty.,

No. 01-16-00092-CV, 2016 WL 4033391, at *6 (Tex. App.—Houston [1st Dist.]

July 26, 2016, pet. denied) (mem. op.) (concluding that timely filing under Section

258.004 of Transportation Code is statutory prerequisite to suit and, thus,

jurisdictional); Stoker v. TWC Comm’rs, 402 S.W.3d 926, 929 (Tex. App.—Dallas

9 2013, no pet.) (holding 14-day filing deadline to file suit seeking judicial review of

Texas Workforce Commission decision is jurisdictional in nature).

Courts have likewise held compliance with various statutes of limitations to

be jurisdictional requirements in suits against governmental entities. For example,

in a recent case, this Court considered whether compliance with Section 16.003’s

two-year statute of limitations, which was applicable to the plaintiff’s constitutional

claims against the Texas Department of Criminal Justice, was a jurisdictional

prerequisite to suit. See Cato v. Tex. Dep’t of Crim. Just., No. 01-21-00099-CV,

2022 WL 3452326, at *2–3 (Tex. App.—Houston [1st Dist.] Aug. 18, 2022, no pet.)

(mem. op.). We held that it was, and because the plaintiff did not file her suit until

one year and four months after the statute of limitations expired, we held that she

failed to comply with a statutory prerequisite to suit, thereby negating jurisdiction.

Id. at *3–4; see also Tucker v. City of Corpus Christi, 622 S.W.3d 404, 407 (Tex.

App.—Corpus Christi–Edinburg 2020, pet. denied) (holding plaintiffs’

constitutional takings claim was governed by Section 16.003(a)’s two-year statute

of limitations and holding that limitations period “is a statutory requirement that

must be met before suit is filed” and thus “complying with § 16.003 is a jurisdictional

requirement for claims brought against a governmental entity”).

Although the Texas Supreme Court has not explicitly held that compliance

with the TTCA’s statute of limitations is jurisdictional, it has held that compliance

10 with the TTCA’s pre-suit notice requirements is. See Worsdale v. City of Killeen,

578 S.W.3d 57, 66 (Tex. 2019); see also TEX. CIV. PRAC. & REM. CODE § 101.101(a)

(“A governmental unit is entitled to receive notice of a claim against it under this

chapter not later than six months after the day that the incident giving rise to the

claim occurred.”).

Here, it is undisputed that the two-year statute of limitations for personal

injuries in Section 16.003 applies to the TTCA claims brought by Meka against the

City. See TEX. CIV. PRAC. & REM. CODE § 16.003(a) (“[A] person must bring suit

for . . . personal injury . . . not later than two years after the day the cause of action

accrues.”). Thus, in line with Chatha and subsequent decisions holding that

compliance with filing deadlines and statutes of limitations are jurisdictional, we

hold that compliance with Section 16.003’s two-year statute of limitations applicable

to Meka’s TTCA claim is a jurisdictional prerequisite to suit. See Sims, 620 S.W.3d

at 379; AC Interests, 543 S.W.3d at 709; Cato, 2022 WL 3452326, at *2–4; Tucker,

622 S.W.3d at 407. This means that Meka must “bring suit” within two years after

the date of the accident, otherwise her suit is jurisdictionally barred.

But that does not end our inquiry. Here, it is undisputed that the accident

occurred on May 7, 2018. Thus, under Section 16.003, Meka had two years, or until

May 7, 2020, to “bring suit” against the City. See TEX. CIV. PRAC. & REM. CODE

§ 16.003(a). Meka filed suit against the City on December 13, 2019, before the two-

11 year statute of limitations expired, but did not serve the City until January 11, 2021,

over eight months after the limitations period expired. The City contends that in

order to “bring suit,” as required by Section 16.003(a), Meka must have both filed

her petition and served the City within the two-year limitations period. See Auten v.

DJ Clark, Inc., 209 S.W.3d 695, 698 (Tex. App.—Houston [14th Dist.] 2006, no

pet.) (“In order to ‘bring suit’ within the applicable limitations period, a plaintiff

must both file suit within the limitations period and use due diligence to serve the

defendant with process.”). The failure to satisfy both requirements, according to the

City, results in a jurisdictional bar to suit. Thus, the question, then, is what it means

under Section 16.003 to “bring suit”—filing only or filing and service. Stated

another way, the issue is whether service, after timely filing, is a statutory

prerequisite under Section 311.034 such that Meka’s failure to serve the City within

the two-year statute of limitations is a jurisdictional bar to suit.

We determine whether an action is a “statutory prerequisite” within the

meaning of Section 311.034 by using the three-prong test set out in Chatha. See 381

S.W.3d at 511–12. First, “to fall within the ambit of section 311.034, a prerequisite

must be found in the relevant statutory language.” Id. at 512. “Second, the

prerequisite must be a requirement.” Id. Third, “the term ‘pre’ indicates the

requirement must be met before the lawsuit is filed.” Id. “Thus, according to the

12 plain language of section 311.034, the term ‘statutory prerequisite’ refers to statutory

provisions that are mandatory and must be accomplished prior to filing suit.” Id.

With this framework in mind, we turn to the language of Section 16.003,

which provides that “a person must bring suit for . . . personal injury . . . not later

than two years after the day the cause of action accrues.” TEX. CIV. PRAC. & REM.

CODE § 16.003(a). As stated above, the City argues that Meka was required to both

file and serve within the limitations period because, under the common law, “to

‘bring suit’ within the applicable limitations period, a plaintiff must both file suit

within the limitations period and use due diligence to serve the defendant with

process.” See Auten, 209 S.W.3d at 698. But the text of the Section 16.003(a) neither

references nor requires actual service or diligent service. See TEX. CIV. PRAC. &

REM. CODE § 16.003(a). Thus, the service requirement the City advocates for fails

to meet the first two prongs of the Chatha test because it “is not found in the relevant

statutory language” of Section 16.003 and it is not a “requirement” of the statute.

We note that in a recent case, the Austin Court of Appeals considered the same

issue as the one presented here—whether diligent service is a statutory prerequisite

to suit brought under the TTCA. See Tanner v. Tex. St. Univ., 644 S.W.3d 747, 750–

53 (Tex. App.—Austin 2022, pet. filed). There, the plaintiff brought suit under the

TTCA alleging she sustained personal injuries when she was thrown from a golf cart

driven by a University employee. Id. at 748–49. There, as here, it was undisputed

13 that the plaintiff filed her suit against the University within the two-year limitations

period but did not serve the University until over three years after the limitations

period expired. Id. at 750–51. The University argued, similar to what the City argues

here, that when a defendant pleads limitations and shows that service was untimely,

a plaintiff must prove diligence in service efforts, and that, without a showing of

diligence, the plaintiff failed to comply with Section 16.003’s statute of limitations.

Id. at 750. Because “diligent service is encompassed within the statute of

limitations,” the University argued that it was a jurisdictional “pre-suit requirement.”

Id. at 752.

The Austin Court of Appeals applied the three-prong test from Chatha and

determined that diligent service was not a jurisdictional “statutory prerequisite”

within the meaning of Section 311.034. Id. In doing so, the court noted that diligent

service did not meet the first two requirements of Chatha because diligent service

was neither referenced in nor required by the statutory language in Section

16.003(a). Id. The court further explained that the diligent service doctrine was a

court-created one, not one created or required by the Legislature:

Furthermore, the Texas Supreme Court has recognized that the “doctrine” or “rule” of due diligence—which provides that “a plaintiff, who files a petition within the limitations period but does not complete service until after the statutory period has expired, is entitled to have the date of service relate back to the date of filing, if the plaintiff has exercised diligence in effecting service”—is a creation of the judiciary. See Stockton v. Offenbach, 336 S.W.3d 610, 615 (Tex. 2011) (noting that courts have attached “due diligence doctrine” to service rule in 14 Texas Rule of Civil Procedure 21a (emphasis added)); Rigo Mfg. Co. v. Thomas, 458 S.W.2d 180, 182 (Tex. 1970) (“This court long ago established the rule that the mere filing of a suit will not interrupt or toll the running of a statute of limitation; that to interrupt the statute, the use of diligence in procuring the issuance and service of citation is required.” (emphasis added)); Riston v. John Doe # 1, 161 S.W.3d 525, 530 (Tex. App.—Houston [14th Dist.] 2004, pet. denied) (noting that “the due diligence and relation back doctrines” apply when plaintiff files suit against defendant before limitations expire). Thus, diligent service is a legal requirement, but it is a court-created one that is not found in section 16.003(a).

Id.

We agree with this reasoning from Tanner. Concluding that the court-created

requirement of diligent service is not a statutory prerequisite to suit is in line with

the Texas Supreme Court’s guidance in Chatha that it is up to the Legislature “to

determine what steps a litigant must take before the state’s immunity is waived.”

Chatha, 381 S.W.3d at 513. It is the Legislature, not the courts, that “establishes the

timeline for filing suit and the mandatory tasks that must be completed before filing.”

Id. at 514.

Turning to the third prong of the Chatha test, we conclude that the requirement

of service, actual or a diligent attempt at, is not one that must be met before the

lawsuit is filed. Id. at 512. Chatha specifies that “a mandatory statutory provision is

a statutory prerequisite under section 311.034, provided it is to be complied with

prior to filing suit.” Id. at 514–15. In construing Section 311.034, the Texas Supreme

Court has expressly distinguished between statutory prerequisites to suit, i.e., those

15 that must be accomplished prior to filing suit, and requirements that can be met only

after suit is filed. For example, in Roccaforte v. Jefferson County, 341 S.W.3d 919,

925 (Tex. 2011), the Court considered whether the post-suit notice requirements in

Local Government Code Section 89.0041 were jurisdictional “prerequisites to suit”

under Section 311.034. See TEX. LOC. GOV’T CODE § 89.0041 (requiring person

filing suit against county or county official to deliver written notice “by the 30th

business day after suit is filed” and stating that if person does not give required

notice, “the court in which the suit is pending shall dismiss the suit on a motion for

dismissal made by the court or the county official”). The Court held that the post-

suit notice requirement was not jurisdictional, explaining that “Section 311.034

applies to prerequisites to suit, not notice requirements that can be satisfied only

after suit is filed.” Roccaforte, 341 S.W.3d at 925 (emphasis in original). The Court

also noted that there was nothing in Section 89.0041’s language reflecting the

Legislature’s intent to make the provision jurisdictional because the section required

the trial court to dismiss a case for noncompliance only after the governmental entity

has moved for dismissal, meaning “a county can waive a party’s noncompliance.”

Id. at 925–26. According to the Court, that motion requirement confirmed “that

compliance with the notice requirements [in Section 89.0041] is not jurisdictional.”

Id. at 926.

16 Similarly, in AC Interests, the Texas Supreme Court considered the issue of

whether the 30-day service deadline in the Clean Air Act was mandatory or

directory. 543 S.W.3d at 707; see also TEX. HEALTH & SAFETY CODE § 382.032(c)

(“Service of citation on the commission must be accomplished within 30 days after

the date on which the petition is filed.”). In connection with its ultimate resolution

that the service deadline was directory, the Court explained that while the filing

deadline under the Clean Air Act was jurisdictional, the service deadline was not.

AC Interests, 543 S.W.3d at 709, 711 (explaining that service requirement “is not

jurisdictional” and “not a condition precedent to suit” and contrasting it with

jurisdictional requirements which result in dismissal because failure to comply

means that jurisdiction is never obtained).

The Austin Court of Appeals has also held that a similar 30-day service

deadline in the Solid Waste Act is not jurisdictional. See TJFA, L.P. v. Tex. Comm’n

on Env’t Quality, 368 S.W.3d 727, 733 (Tex. App.—Austin 2012, pet. denied).

Relying on the Texas Supreme Court’s decision in Roccaforte, the court explained

that statutory prerequisites to suit are steps or conditions that must be satisfied before

suit can be filed, and that by its very terms, the statutory “30-day deadline for

executing service of process begins after the suit has been filed.” Id. at 731

(emphasis in original). The court further supported its conclusion by considering the

way a trial court’s jurisdiction is invoked:

17 In addition, a determination that service is not a jurisdictional requirement is consistent with the manner in which a trial court’s jurisdiction is invoked. Under governing case law, filing a petition endows a trial court with subject-matter jurisdiction provided that the case involves a dispute that the trial court has authority to adjudicate. In other words, the authority of the court to act in the matter is properly invoked by filing a petition alleging a claim falling under the jurisdiction of the court. If the petition does not address a dispute falling under the court’s jurisdictional umbrella, then the court does not have subject-matter jurisdiction, and the case is subject to dismissal by a plea to the jurisdiction. Moreover, unlike subject-matter jurisdiction, a defendant may generally waive a defect in service if he chooses.

Id. at 732–33 (citations omitted). Accordingly, the court held that “execution of

service is not a statutory prerequisite to suit and that the failure to timely execute

should instead be viewed as similar to a more traditional failure to comply with a

statute of limitations.” Id. at 733. “In other words, the defendant may argue that the

case should be dismissed for failing to timely execute service, but untimely service

is not a jurisdictional defect.” Id.

Finally, considering the same statute of limitations here in the context of a

TTCA suit, the Austin Court of Appeals concluded in Tanner that the diligent-

service requirement from the common law was likewise not a “requirement that must

be met before the lawsuit is filed.” 644 S.W.3d at 752. Recognizing that the benefit

of a plaintiff’s diligence in effecting service is to allow the date of service to “relate

back” to the earlier date of the filing, the court held that “[d]iligent service is not ‘a

statutory requirement commanding action before filing suit’ within the meaning of

Section 311.034.” Id. (quoting Chatha, 381 S.W.3d at 515). 18 We agree with the reasoning in the above line of cases and apply it here.

Service, by its very nature, occurs after a lawsuit is filed. See TEX. R. CIV. P. 22 (“A

civil suit in the district or county court shall be commenced by a petition filed in the

office of the clerk.”); id. 99(a) (“Upon the filing of the petition, the clerk, when

requested, shall forthwith issue a citation and deliver the citation as directed by the

requesting party.”); Tex. Health & Hum. Servs. Comm’n v. Olguin, 521 S.W.3d 403,

409 (Tex. App.—Austin 2017, no pet.) (concluding that to “bring suit” within 60-

day deadline under Labor Code Section 21.254 does not require service of process

within that period in addition to filing suit because service of process necessarily

occurs after suit is filed and therefore service of process within 60-day deadline in

Section 21.254 is not statutory prerequisite under Section 311.034); TJFA, 368

S.W.3d at 729, 731–33 (interpreting statutory provision in Health and Safety Code

requiring that “[s]ervice of citation must be accomplished not later than the 30th day

after the date on which the petition is filed” and concluding that service was not

statutory prerequisite “given that the service deadline occurs after a suit has been

filed”); cf. Roccaforte, 341 S.W.3d at 925 (holding that post-suit notice requirements

were not jurisdictional because “Section 311.034 applies to prerequisites to suit, not

notice requirements that can be satisfied only after suit is filed” (emphasis in

original)); Jefferson Cnty. v. Farris, 569 S.W.3d 814, 827–28 (Tex. App.—Houston

[1st Dist.] 2018, pet. denied) (citing Roccaforte, 341 S.W.3d at 925) (holding that it

19 would “defy logic” to construe presentment to commissioners court requirement in

Local Government Code Section 89.004(c) as jurisdictional prerequisite to suit

“[b]ecause the statute contemplates that, at least in some situations, presentment to

the commissioners court may happen after the filing of suit”). Since it is impossible

for service of citation to take place prior to filing suit, service of citation cannot be

considered a statutory prerequisite to filing suit. Moreover, unlike subject-matter

jurisdiction, service may be waived by the defendant. See TJFA, 368 S.W.3d at 733.

Thus, we hold that service of citation within Section 16.003(a)’s two-year limitations

period is not a jurisdictional requirement to bringing a TTCA suit under Section

311.034 of the Texas Government Code.

For the same reasons that actual service cannot be accomplished before filing

suit, neither can a diligent attempt at service. We therefore likewise conclude that

the diligent service requirement fails the Chatha test and is not a jurisdictional

“statutory prerequisite” within the meaning of Section 311.034. See Tanner, 644

S.W.3d at 752 (holding that because due diligence is not referenced in or required

by Section 16.003(a) and does not concern step that must be accomplished before

filing TTCA suit, and because “the benefit of a plaintiff’s diligence in effecting

service is that the date of service ‘relate[s] back’ to the earlier date of filing,” it fails

20 Chatha test and is not jurisdictional “statutory prerequisite” within meaning of

Section 311.034).2

Because service, either actual service or a diligent attempt at service, is not

referenced in or required by Section 16.003(a) and does not concern a step that must

be accomplished before filing a TTCA suit, it fails the Chatha test. See Chatha, 381

2 We recognize that a few courts of appeals to consider whether actual service is a jurisdictional requirement have held that it is not, provided that the plaintiff exercised diligence in attempting service on the government defendant. See, e.g., Tex. Health & Hum. Servs. Comm’n v. Olguin, 521 S.W.3d 403, 409 (Tex. App.— Austin 2017, no pet.) (holding that service of process within 60-day deadline in Section 21.254 is not statutory prerequisite under Section 311.034, but also concluding that there could “be no contention that [plaintiff’s] suit is jurisdictionally barred where, as here, he exercised due diligence in effecting service on [defendant]”); Zamora v. Tarrant Cnty. Hosp. Dist., 510 S.W.3d 584, 591 (Tex. App.—El Paso 2016, pet. denied) (“[W]e interpret the language in TEX. LAB. CODE ANN. § 21.254 requiring Zamora to ‘bring a civil action’ within sixty days of receiving the right-to-sue letter as not requiring actual service of process on the Hospital within that sixty-day period in order to preserve her right to judicial review—so long as she exercised due diligence in effecting service on the Hospital.”). These cases are distinguishable for a few reasons. For one, they are both TCHRA cases, not TTCA cases. Olguin, 521 S.W.3d at 407; Zamora, 510 S.W.3d 590–91. Second, the procedural posture in Zamora was different—there, the plaintiff appealed from the trial court’s grant of a plea to the jurisdiction and alternative motion for summary judgment raising the affirmative defense of limitations, which was filed by the Hospital as an alternative in the event the filing deadline was determined not to be jurisdictional. Zamora, 510 S.W.3d at 588. Conversely, the City here appeals from the trial court’s denial of its summary judgment motion. Finally, in Olguin, the issue of whether the plaintiff exercised diligence in service was not disputed. Olguin, 521 S.W.3d at 409–10. To the extent that these cases hold that actual service within the limitations period is not a jurisdictional requirement or statutory prerequisite to suit, but the exercise of diligence in service is, we find the reasoning in Tanner, where the court considered the same statute of limitations applicable to TTCA claims like those here, to be more persuasive and in line with the Texas Supreme Court’s test in Chatha.

21 S.W.3d at 511–12. Therefore, we hold that neither actual service nor a diligent

attempt at service is a statutory prerequisite to suit within the meaning of Section

311.034. Because there is no dispute that Meka filed her TTCA suit against the City

within Section 16.003(a)’s two-year limitations period, we hold that she complied

with the statutory prerequisites to suit and the TTCA’s waiver of immunity remains

intact. Thus, the trial court did not err in denying the City’s motion for summary

judgment.

We clarify that our holding today does not mean that governmental entities

may not challenge untimely service. Rather, we conclude that the failure to timely

execute service is not a jurisdictional defect, but instead should be viewed more like

a traditional failure to comply with a statute of limitations that is raised as an

affirmative defense.3 See TJFA, 368 S.W.3d at 733.

We overrule the City’s first issue.4

3 Although the issue of Meka’s diligence in service was raised in the City’s motion for summary judgment, because we hold that service (actual or diligent) is not a jurisdictional prerequisite to suit, and thus does not implicate the City’s sovereign immunity, it is outside the scope of our review in this interlocutory appeal from the trial court’s denial of the City’s motion for summary judgment. 4 Because resolution of the City’s first issue is dispositive, we do not reach the remaining issue raised by the parties related to whether the Texas Supreme Court’s emergency orders issued in response to the COVID-19 pandemic tolled or extended the two-year limitations period until June 2021, such that Meka both filed and served the City within the limitations period as purportedly extended by these emergency orders. See TEX. R. APP. P. 47.1 (requiring courts of appeals to issue opinions that are as brief as practicable but that address every issue raised and necessary to final disposition of appeal). 22 Conclusion

We affirm the trial court’s order denying the City’s motion for summary

Amparo Guerra Justice

Panel consists of Justices Landau, Countiss, and Guerra.