NUMBER 13-22-00593-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
KEELY R. SMITH, Appellant.
v.
UNIVERSITY OF TEXAS RIO GRANDE VALLEY, Appellee.
ON APPEAL FROM THE 389TH DISTRICT COURT OF HIDALGO COUNTY, TEXAS
MEMORANDUM OPINION Before Chief Justice Contreras and Justices Tijerina and Peña Memorandum Opinion by Justice Tijerina
Appellant Keely R. Smith appeals the trial court’s judgment granting appellee the
University of Texas Rio Grande Valley’s (UTRGV’s) plea to the jurisdiction. By five issues,
Smith argues the trial court erred because: (1) the election of remedies doctrine in the
Texas Commission on Human Rights Act (TCHRA) does not bar her state court suit; (2) she could not have brought her state claims in federal court; (3) she could not have
brought her federal court claims in state court; (4) she voluntarily dismissed her federal
court claim; and (5) it could not have granted an amended plea to the jurisdiction that did
not exist. We affirm.
I. BACKGROUND
On July 20, 2021, Smith filed suit against UTRGV in the 389th District Court of
Hidalgo County asserting unlawful employment discrimination. UTRGV filed a plea to the
jurisdiction asserting that Smith’s petition should be dismissed because it was barred by
the TCHRA’s election of remedies provision. See TEX. LAB. CODE ANN. § 21.211. UTRGV
asserted Smith had a pending lawsuit in federal court for disability discrimination and
retaliation based on the same operative facts and was thus precluded from pursuing suit
in state court. UTRGV further asserted that Smith failed to exhaust her administrative
remedies.
Smith responded, asserting she established a prima face case for discrimination
and retaliation because she only needed to establish one single act of discrimination
within the applicable period to invoke the trial court’s jurisdiction. Smith further alleged
that the Texas Labor Code did not foreclose her federal claims.
The trial court ordered the parties to submit additional briefs. On March 14, 2022,
UTRGV submitted its brief asserting that multiple courts have held that the labor code
precluded a plaintiff from filing lawsuits in both state and federal court premised on the
same alleged discriminatory acts. In Smith’s brief, Smith attempted to distinguish each of
the cases relied on by UTRGV.
2 On June 3, 2022, Smith filed a supplemental response to UTRGV’s plea to the
jurisdiction. Smith explained that she voluntarily dismissed her federal lawsuit without
prejudice on June 3, 2022; therefore, UTRGV’s plea to the jurisdiction should be denied
as she was not actively pursuing her federal causes of action. UTRGV responded that
Smith cited no authority that a voluntary dismissal of her then-pending federal claim
grants the trial court’s jurisdiction over her labor code claims. Instead, UTRGV asserted
that the election of remedies provision is triggered by the initiation of a lawsuit in a different
forum and required dismissal of Smith’s state claims.
The trial court granted UTRGV’s plea to the jurisdiction on September 21, 2022.
Smith filed a motion for new trial, which the trial court denied. This appeal followed.
II. PLEA TO THE JURISDICTION
Smith asserts that she may pursue claims under the TCHRA in state court while
separately pursuing claims under the American with Disabilities Act and the Rehabilitation
Act in federal court based on the same facts. She concedes that § 21.211 prohibits a
former employee from suing an employer for a common-law tort and filing a TCHRA claim
for the same conduct, but she maintains it does not require the employee to elect to bring
a claim under a federal anti-discrimination statute or the TCHRA. UTRGV contends that
§ 21.211 precludes an employee from pursuing claims based on the same termination
facts in both federal and state court. Because Smith previously brought a federal suit
based on her termination, UTRGV argues her state court suit based on the same facts is
barred.
A. Standard of Review
3 Governmental units, like UTRGV, enjoy sovereign immunity from lawsuits except
where the legislature waives immunity. Flores v. Tex. Dep’t of Crim. Just., 634 S.W.3d
440, 450 (Tex. App.—El Paso 2021, no pet.) (citing Tex. Parks & Wildlife Dep’t v. Sawyer
Trust, 354 S.W.3d 384, 388 (Tex. 2011)). Sovereign immunity deprives a trial court of
subject-matter jurisdiction. Mission Consol. Indep. Sch. Dist. v. Garcia, 372 S.W.3d 629,
636 (Tex. 2012). There is a limited waiver of immunity for claims brought against
governmental units under the TCHRA, extending to suits in which the pleadings state a
prima facie claim for an actual violation of the Act. See Tex. Dep’t of Crim. Just. v. Flores,
555 S.W.3d 656, 661 (Tex. App.—El Paso 2018, no pet.) (citing Garcia, 372 S.W.3d at
636). If the plaintiff fails to state a prima facie case, the governmental unit retains its
immunity from suit. Id. (citing Garcia, 372 S.W.3d at 636).
A defendant may challenge subject-matter jurisdiction through a plea to the
jurisdiction. See Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 225–26 (Tex.
2004)). The plea can attack the pleaded facts as well as the existence of jurisdictional
facts by attaching evidence to the plea. Id. We construe the pleadings liberally in favor of
the plaintiff. City of El Paso v. Heinrich, 284 S.W.3d 366, 378 (Tex. 2009) (citation
omitted). When, as here, there is no question of fact as to the jurisdictional issue, the trial
court rules on the plea as a matter of law. Id. We review a trial court’s ruling on a plea to
the jurisdiction de novo. Miranda, 133 S.W.3d at 226.
B. Applicable Law
Section 21.211 states:
A person who has initiated an action in a court of competent jurisdiction or who has an action pending before an administrative agency under other law
4 or an order or ordinance of a political subdivision of this state based on an act that would be an unlawful employment practice under this chapter may not file a complaint under this subchapter for the same grievance.
TEX. LAB. CODE ANN. § 21.211. This “provision must be read against the backdrop of
extensive and overlapping state and federal anti-discrimination statutes.” Waffle House,
Inc. v. Williams, 313 S.W.3d 796, 809 (Tex. 2010); see Hoffman-La Roche, Inc. v.
Zeltwanger, 144 S.W.3d 438, 445 (Tex. 2004) (noting that “[t]he [T]CHRA is modeled after
federal law with the purpose of executing the policies set forth in Title VII of the federal
Civil Rights Act of 1964”). “Its obvious purpose, read in this context, is to provide that if a
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NUMBER 13-22-00593-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
KEELY R. SMITH, Appellant.
v.
UNIVERSITY OF TEXAS RIO GRANDE VALLEY, Appellee.
ON APPEAL FROM THE 389TH DISTRICT COURT OF HIDALGO COUNTY, TEXAS
MEMORANDUM OPINION Before Chief Justice Contreras and Justices Tijerina and Peña Memorandum Opinion by Justice Tijerina
Appellant Keely R. Smith appeals the trial court’s judgment granting appellee the
University of Texas Rio Grande Valley’s (UTRGV’s) plea to the jurisdiction. By five issues,
Smith argues the trial court erred because: (1) the election of remedies doctrine in the
Texas Commission on Human Rights Act (TCHRA) does not bar her state court suit; (2) she could not have brought her state claims in federal court; (3) she could not have
brought her federal court claims in state court; (4) she voluntarily dismissed her federal
court claim; and (5) it could not have granted an amended plea to the jurisdiction that did
not exist. We affirm.
I. BACKGROUND
On July 20, 2021, Smith filed suit against UTRGV in the 389th District Court of
Hidalgo County asserting unlawful employment discrimination. UTRGV filed a plea to the
jurisdiction asserting that Smith’s petition should be dismissed because it was barred by
the TCHRA’s election of remedies provision. See TEX. LAB. CODE ANN. § 21.211. UTRGV
asserted Smith had a pending lawsuit in federal court for disability discrimination and
retaliation based on the same operative facts and was thus precluded from pursuing suit
in state court. UTRGV further asserted that Smith failed to exhaust her administrative
remedies.
Smith responded, asserting she established a prima face case for discrimination
and retaliation because she only needed to establish one single act of discrimination
within the applicable period to invoke the trial court’s jurisdiction. Smith further alleged
that the Texas Labor Code did not foreclose her federal claims.
The trial court ordered the parties to submit additional briefs. On March 14, 2022,
UTRGV submitted its brief asserting that multiple courts have held that the labor code
precluded a plaintiff from filing lawsuits in both state and federal court premised on the
same alleged discriminatory acts. In Smith’s brief, Smith attempted to distinguish each of
the cases relied on by UTRGV.
2 On June 3, 2022, Smith filed a supplemental response to UTRGV’s plea to the
jurisdiction. Smith explained that she voluntarily dismissed her federal lawsuit without
prejudice on June 3, 2022; therefore, UTRGV’s plea to the jurisdiction should be denied
as she was not actively pursuing her federal causes of action. UTRGV responded that
Smith cited no authority that a voluntary dismissal of her then-pending federal claim
grants the trial court’s jurisdiction over her labor code claims. Instead, UTRGV asserted
that the election of remedies provision is triggered by the initiation of a lawsuit in a different
forum and required dismissal of Smith’s state claims.
The trial court granted UTRGV’s plea to the jurisdiction on September 21, 2022.
Smith filed a motion for new trial, which the trial court denied. This appeal followed.
II. PLEA TO THE JURISDICTION
Smith asserts that she may pursue claims under the TCHRA in state court while
separately pursuing claims under the American with Disabilities Act and the Rehabilitation
Act in federal court based on the same facts. She concedes that § 21.211 prohibits a
former employee from suing an employer for a common-law tort and filing a TCHRA claim
for the same conduct, but she maintains it does not require the employee to elect to bring
a claim under a federal anti-discrimination statute or the TCHRA. UTRGV contends that
§ 21.211 precludes an employee from pursuing claims based on the same termination
facts in both federal and state court. Because Smith previously brought a federal suit
based on her termination, UTRGV argues her state court suit based on the same facts is
barred.
A. Standard of Review
3 Governmental units, like UTRGV, enjoy sovereign immunity from lawsuits except
where the legislature waives immunity. Flores v. Tex. Dep’t of Crim. Just., 634 S.W.3d
440, 450 (Tex. App.—El Paso 2021, no pet.) (citing Tex. Parks & Wildlife Dep’t v. Sawyer
Trust, 354 S.W.3d 384, 388 (Tex. 2011)). Sovereign immunity deprives a trial court of
subject-matter jurisdiction. Mission Consol. Indep. Sch. Dist. v. Garcia, 372 S.W.3d 629,
636 (Tex. 2012). There is a limited waiver of immunity for claims brought against
governmental units under the TCHRA, extending to suits in which the pleadings state a
prima facie claim for an actual violation of the Act. See Tex. Dep’t of Crim. Just. v. Flores,
555 S.W.3d 656, 661 (Tex. App.—El Paso 2018, no pet.) (citing Garcia, 372 S.W.3d at
636). If the plaintiff fails to state a prima facie case, the governmental unit retains its
immunity from suit. Id. (citing Garcia, 372 S.W.3d at 636).
A defendant may challenge subject-matter jurisdiction through a plea to the
jurisdiction. See Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 225–26 (Tex.
2004)). The plea can attack the pleaded facts as well as the existence of jurisdictional
facts by attaching evidence to the plea. Id. We construe the pleadings liberally in favor of
the plaintiff. City of El Paso v. Heinrich, 284 S.W.3d 366, 378 (Tex. 2009) (citation
omitted). When, as here, there is no question of fact as to the jurisdictional issue, the trial
court rules on the plea as a matter of law. Id. We review a trial court’s ruling on a plea to
the jurisdiction de novo. Miranda, 133 S.W.3d at 226.
B. Applicable Law
Section 21.211 states:
A person who has initiated an action in a court of competent jurisdiction or who has an action pending before an administrative agency under other law
4 or an order or ordinance of a political subdivision of this state based on an act that would be an unlawful employment practice under this chapter may not file a complaint under this subchapter for the same grievance.
TEX. LAB. CODE ANN. § 21.211. This “provision must be read against the backdrop of
extensive and overlapping state and federal anti-discrimination statutes.” Waffle House,
Inc. v. Williams, 313 S.W.3d 796, 809 (Tex. 2010); see Hoffman-La Roche, Inc. v.
Zeltwanger, 144 S.W.3d 438, 445 (Tex. 2004) (noting that “[t]he [T]CHRA is modeled after
federal law with the purpose of executing the policies set forth in Title VII of the federal
Civil Rights Act of 1964”). “Its obvious purpose, read in this context, is to provide that if a
plaintiff files a federal cause of action under Title VII or another federal anti-discrimination
statute, or brings a local grievance as expressly allowed under the TCHRA, she cannot
bring a duplicative claim under the TCHRA.” Waffle House, 313 S.W.3d at 809–10
(emphasis added). Thus, “a claimant can pursue a remedy for discrimination under
federal law or under grievance-redress systems in existence at the local level, but
pursuing either of these options precludes later initiating a [T]CHRA complaint.” Id. at 810
(quoting City of Waco v. Lopez, 259 S.W.3d 147, 155 (Tex. 2008)). “Section 21.211 limits
the ability to pursue multiple grievances in multiple forums over the same alleged
conduct.” Waco, 259 S.W.3d at 155.
C. Discussion
By first filing her discrimination and retaliation claims in federal court, Smith
“initiated an action in a court of competent jurisdiction . . . based on an act that would be
an unlawful employment practice under” the TCHRA. See TEX. LAB. CODE ANN. § 21.211.
She therefore could not later bring a complaint under the TCHRA for the same grievance.
5 See Waffle House, 313 S.W.3d 809–10 (providing that a plaintiff “cannot bring a
duplicative claim under the TCHRA” if the plaintiff has filed a claim under “another federal
anti-discrimination statute” or sought “a local grievance as expressly allowed under the
TCHRA”); Waco, 259 S.W.3d at 156 (“Lopez’s claim—that his employment was
terminated in retaliation for alleging that his earlier transfer resulted from age and race
discrimination—falls squarely under the [T]CHRA, which provides his exclusive state
statutory remedy.”); see also Wije v. Burns, No. 01-19-00024-CV, 2020 WL 5269414, at
*5 (Tex. App.—Houston [1st Dist.] Sept. 3, 2020, pet. denied) (mem. op.) (“Wije elected
to pursue his discrimination and retaliation claims in federal court, and this election-of-
remedies provision precludes him from pursuing these same claims in state court under
the TCHRA.”); Wu v. Tex. A & M Int’l Univ., No. 04-11-00180-CV, 2011 WL 5406263, at
*3 (Tex. App.—San Antonio Nov. 9, 2011, no pet.) (mem. op.) (“Because [plaintiff] elected
to pursue administrative proceedings with the EEOC and file his discrimination suit in
federal court, the election of remedies provision in the [T]CHRA precludes him from
pursuing the same claim in state court under the [T]CHRA, and any amendment of his
pleadings would be futile.”).
Smith concedes that “a plaintiff cannot have two bites at the apple,” see Jackson
v. Creditwatch, Inc., 84 S.W.3d 397, 402–403 (Tex. App.—Fort Worth 2002), rev’d in part
on other grounds, 157 S.W.3d 814 (Tex. 2005), but asserts that because her federal
claims were withdrawn, the trial court deprived her of any “bite at the apple.” According
to Smith, “there were no simultaneous lawsuits.” However, § 21.211 expressly provides
that “[a] person who has initiated an action in a court of competent jurisdiction . . . may
6 not file a complaint under this subchapter for the same grievance.” See TEX. LAB. CODE
ANN. § 21.211 (emphasis added); see also Health & Human Servs. Comm’n v. Quintero,
No. 08-23-00060-CV, 2023 WL 6613331, at *4 (Tex. App.—El Paso Oct. 10, 2023, no
pet.) (mem. op.) (“By first filing her discrimination and retaliation claims in federal court,
Quintero initiated an action in a court of competent jurisdiction based on an act that would
be an unlawful employment practice under the TCHRA”) (internal citations omitted)
(emphasis added); Wije, 2020 WL 5269414, at *5 (holding that the trial court did not err
in dismissing the employer’s plea to the jurisdiction where the plaintiff “first filed” his Title
VII discrimination and retaliation claims in federal court, but the federal claims were
dismissed one year prior). The election-of-remedies statute does not require that a
claimant pursue its original claim to a final adjudication. See TEX. LAB. CODE ANN.
§ 21.211. Instead, the statute only requires that a claimant “initiate” an action
administratively, federally, or locally, to bar a subsequent complaint under the labor code.
See id. That is precisely what Smith did here: she initiated an action in a court of
competent jurisdiction (the federal court), and therefore cannot file a subsequent lawsuit
complaint under the same facts pursuant to § 21.211.1 See Waco, 259 S.W.3d at 155
(noting that § 21.151 is specifically limited to local laws, and Section 21.211 limits the
ability to pursue multiple grievances in multiple forums over the same alleged conduct.”);
see also Stancu v. Cent. Apartment Mgmt., Inc., No. 394-CV-2440-D, 1997 WL 278127,
at *2 (N.D. Tex. May 14, 1997) (mem. op.) (“[Section] 21.211 merely provides that if a
1 We note that Smith elected to voluntarily dismiss her causes of action in federal court without
prejudice, thereby allowing her the opportunity to refile the same.
7 person has already initiated a lawsuit or other proceeding permitted by law, order, or
ordinance, he may not file a complaint with the Commission on Human Rights for the
same practice. It is in this sense alone that he elects his remedy.” (emphasis added)).
The statute only requires initiation, and we are bound by that language. See Fort
Bend Indep. Sch. Dist. v. Gayle, 371 S.W.3d 391, 398 (Tex. App.—Houston [1st Dist.]
2012, pet. denied) (“The meaning of ‘initiate’ is plain: it means to commence the
process . . . begin, introduce, set going, originate”); City of Fort Worth v. Shilling, 266
S.W.3d 97, 106 (Tex. App.—Fort Worth 2008, pet. denied) (“Having initiated
administrative proceedings with the City regarding conduct involving Craven, Shilling was
unambiguously prohibited by labor code [§] 21.211 from contemporaneously pursuing her
complaint with the TWC based on the same grievance.” (emphasis added)). Accordingly,
we conclude the trial court did not err by granting UTRGV’s plea to the jurisdiction on this
basis. We overrule Smith’s first issue. Because this issue is dispositive, we need not
address Smith’s remaining issues. See TEX. R. APP. P. 47.1.
III. CONCLUSION
We affirm the judgment of the trial court.
JAIME TIJERINA Justice
Delivered and filed on the 18th day of July, 2024.