Opinion issued March 6, 2025.
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-24-00072-CV ——————————— LAKEVIEW POLICE DEPARTMENT AND THE CITY OF EL LAGO, Appellants V. CORRIE MOODY, Appellee
On Appeal from the 61st District Court Harris County, Texas Trial Court Case No. 2023-05377
MEMORANDUM OPINION
Appellee Corrie Moody filed an employment discrimination suit against
Appellants Lakeview Police Department and the City of El Lago. Lakeview and the
City filed a Plea to the Jurisdiction based on governmental immunity, which the trial
court denied. In this interlocutory appeal, Lakeview and the City argue the trial court erred
in denying their Plea to the Jurisdiction because (1) Moody was not employed by the
City and failed to plead any facts demonstrating that the City discriminated against
her, and (2) Moody did not file a timely complaint with the Texas Workforce
Commission, thus failing to exhaust her administrative remedies under Chapter 21
of the Texas Labor Code.
We affirm in part, and reverse and render in part.
Background
Corrie Moody began working as a police officer with Lakeview Police
Department in August 2020. She later became pregnant and “experienced
complication with her pregnancy.” In May 2021, Moody requested a leave of
absence due to pregnancy complications. Lakeview approved Moody’s request and
granted her leave starting on May 28, 2021.
On July 2, 2021, while still on leave, Moody gave birth to her son via C-
section. One week later, on July 9, 2021, Moody received a certified letter from Carl
Nunn, Lakeview’s Chief of Police, informing her that she would be granted an
additional four weeks of leave without pay through August 6, 2021. The letter
stated:
As you know, attendance is an essential duty of the officers of the Lakeview Police Department. You have been absent since May 28, 2021 and have exhausted your paid sick and vacation leave. Unfortunately, you do not qualify for Family and Medical Leave under
2 the FMLA. While you have provided no medical documentation substantiating a need to remain on leave, it is our understanding that you are requesting additional leave on unpaid status.
In accordance with General Order #200-14, I am authorized to grant employees leave without pay. Therefore, I am willing to grant you an additional 4 weeks of leave without pay. Your authorized leave without pay shall end on August 6, 2021. You will be expected to check in with your supervisor prior to that date to confirm your next, scheduled shift.
The letter concluded by stating that if Moody “was unable or unwilling to return to
work” by August 6, 2021—the end of her approved leave period—her employment
with Lakeview would be terminated.
According to Moody, she requested “in writing to be placed on light duty until
cleared by her doctor,” but Chief Nunn “denied [her] request and told her [] he could
only offer [her] a demotion to an unpaid position.” Moody claims she then requested
additional unpaid leave providing a letter from her doctor stating she could not return
to “full duty” work until September 13, 2021 due to her C-section. Moody states
she submitted her request to Lakeview Police Commissioners Jeff Corbin, Rob
O’Donel, and Michael O’Brien who “placed [her request] on the agenda during an
executive meeting” where the Commission voted “to terminate [her] employment.”
On August 3, 2021, Patrick Delly, Chairman for the Lakeview Police
Commission, informed Moody in writing that the Commission had reviewed her
request for additional leave and “concluded that no further unpaid leave [would] be
3 granted.” Lakeview terminated Moody’s employment when she failed to return to
work on August 6, 2021. Her termination was effective August 10, 2021.
On December 27, 2021, Moody filed with the Texas Workforce Commission
(“TWC”) an “Employment Discrimination Complaint Form” claiming she had been
terminated from her employment at Lakeview based on sex and pregnancy
discrimination.1 The form is also identified as a “TWCCRD Inquiry Form.”
On January 14, 2022, TWC sent Moody a “TWCCRD STATUS OF
COMPLAINT NOTICE” confirming Moody’s “Complaint Form” had been
received on December 27, 2021. The TWC notice states:
Your complaint is in queue for a drafted charge. This means that it was accepted by our office and will be drafted into a Charge of Discrimination. This means your allegations met the minimum prima facie as defined by Chapter 21 of the Texas Labor Code. Once the draft has been completed it will be sent to you via DocuSign and your signature will be required within 14 calendar days.
....
• If we are unable to formalize your complaint it will be dismissed or transferred, depending upon the specifics within your complaint.
• We will only perfect a charge if your complaint is within TWCCRD’s jurisdiction.
1 Moody’s TWC complaint reflects that she also filed a complaint with the Equal Employment Opportunity Commission (“EEOC”). On March 3, 2023, the EEOC informed Moody that she had a right to institute a civil action under Title VII of the Civil Rights Act of 1964.
4 • If we are able to perfect a Charge of Discrimination, both parties will be invited to participate in mediation.
On May 25, 2022, Moody filed with TWC a verified Charge of Discrimination
repeating the allegations she made in the TWCCRD Inquiry Form that she was
terminated “based on [her] sex (female/pregnancy).” The charge identifies Moody’s
employer as “Lakeview Police Department-City of El Lago.” According to Moody,
TWC investigated her allegations and later “engaged the parties in mediation.”
On November 29, 2022, TWC issued Moody a “Notice of Dismissal and Right
to File Civil Action” informing Moody she had a right to file a private civil suit in
state court under the Texas Commission on Human Rights Act (“TCHRA”), and that
she had to file suit within “sixty (60) days from the receipt of th[e] notice.” Less
than sixty days later, on January 26, 2023, Moody filed suit against the Lakeview
Police Department and the City of El Lago for sex discrimination under the TCHRA.
In her petition, Moody alleges that Lakeview “is a police agency created and
funded by Co-Defendant the City of El Lago.” She alleges that in August 2020, she
began her employment as a police officer with the “Defendants,” who she defines as
Lakeview and the City collectively, and that ultimately the “Defendants terminated
her employment.” Moody alleges that after she gave birth to her son via C-section
on July 2, 2021, the “Defendants’ Chief of Police” notified her that she had to return
to work and regular duties on August 6, 2021. Although Moody submitted a letter
from her doctor stating she could not be released back to work until September 13,
5 2021, and offered to go on leave without pay, she alleges “the Defendants terminated
her employment.” According to Moody, “the Police Commission . . . in part,
make[s] the employment decisions for Defendants.” Moody alleged that she filed
her Charge of Discrimination against “the Defendants” with TWC on May 25, 2022,
and she received a right to sue letter from TWC.
Lakeview and the City filed a Plea to the Jurisdiction arguing that as
governmental entities, they were immune from Moody’s lawsuit because she had
not exhausted her administrative remedies prior to filing suit. According to
Lakeview and the City, Moody had not filed a timely charge of discrimination,
which is a jurisdictional prerequisite to filing suit under the TCHRA. See TEX. LAB.
CODE § 21.202(a) (stating “a complaint under this subchapter must be filed not later
than the 180th day after the date the alleged unlawful employment practice
occurred”).
In their Plea, Lakeview and the City argued that on July 9, 2021, Moody was
notified that she had to return to work by August 6, 2021 or face termination, and
that on August 3, 2021, she was notified that the Lakeview Police Commission had
denied her request for additional leave. Moody’s termination was effective August
10, 2021. According to Lakeview and the City, Moody had 180 days from August
3, 2021—the date on which Moody was notified that her request for additional leave
had been denied—to file a charge with TWC. Based on the August 3, 2021 notice
6 date, Lakeview and the City argue Moody had until January 31, 2022 to file her
charge of discrimination. Because Moody did not file her “charge” until May 25,
2022, they argue Moody failed to comply with a jurisdictional prerequisite thus
depriving the court of jurisdiction over her lawsuit.
Lakeview and the City attached to their Plea to the Jurisdiction (1) the minutes
of the Lakeview Police Commission’s August 2, 2021 Executive Session, (2) the
August 3, 2021 letter from Patrick Delly, the Chairman of the Lakeview Police
Commission, informing Moody that the Lakeview Police Commission had denied
her request for additional leave, (3) the Separation of Licensee reflecting that
Moody’s employment with Lakeview was terminated on August 10, 2021, (4) the
May 25, 2022 Charge of Discrimination Moody filed with TWC, (5) the March 3,
2023 Notice of Dismissal and Right to File Civil Action Moody received from TWC,
and (6) the July 9, 2021 letter from Lakeview Police Chief Nunn to Moody granting
Moody additional leave through August 6, 2021 and informing Moody that her
employment would be terminated if she was unable or unwilling to return to work
after her leave ended.
Moody responded to the City’s and Lakeview’s Plea arguing she had
complied with the jurisdictional prerequisites to filing suit because she had filed her
“complaint” with TWC on December 27, 2021, well within the 180-day deadline.
According to Moody, TWC sent her a letter on January 14, 2022, confirming the
7 receipt and filing of her December 27 complaint, and she later filed a Charge of
Discrimination with TWC in May 2022. Moody argued she was not required to file
a “Charge of Discrimination” within 180 days from the discriminatory conduct
because the TCHRA only requires the filing of a “complaint” within this period.
According to Moody, Lakeview and the City “conflated the terms ‘complaint’ and
‘charge of discrimination’ to confuse the issue.” In support of her response, Moody
attached (1) the December 27, 2021 “Employment Discrimination Complaint Form”
she filed with TWC, (2) the January 14, 2022 notice she received from TWC
informing her that her complaint had been received and accepted, and (3) the
November 29, 2022 Notice of Dismissal and Right to File Civil Action she received
from TWC.
The trial court denied Lakeview’s and the City’s Plea to the jurisdiction. This
interlocutory appeal followed.2
Governmental Immunity
In two issues, Lakeview and the City argue the trial court erred in denying
their Plea based on governmental immunity because (1) Moody was not employed
by the City and she did not plead any facts demonstrating the City discriminated
2 TEX. CIV. PRAC. & REM. CODE § 51.014(a)(8) (authorizing interlocutory appeal from grant or denial of governmental unit’s plea to jurisdiction).
8 against her, and (2) Moody did not file a timely complaint with TWC, and thus she
failed to exhaust her administrative remedies under the TCHRA.
A. Governmental Immunity
Governmental immunity protects political subdivisions of the state from
lawsuits and liability for monetary damages unless their immunity is waived by the
Legislature. See Schroeder v. Escalera Ranch Owners’ Ass’n, Inc., 646 S.W.3d 329,
332 (Tex. 2022); see also Mission Consol. Indep. Sch. Dist. v. Garcia, 253 S.W.3d
653, 655 (Tex. 2008) (“Sovereign immunity and its counterpart, governmental
immunity, exist to protect the State and its political subdivisions from lawsuits and
liability for money damages.”). The Legislature has provided a limited waiver of
immunity from suit for employment discrimination claims falling within the scope
of the Texas Commission on Human Rights Act. See TEX. LAB. CODE §§ 21.051,
21.055; Prairie View A&M Univ. v. Chatha, 381 S.W.3d 500, 513 (Tex. 2012). “[A]
claimant can bring suit under the TCHRA against a governmental entity only after
[the] claimant strictly satisfies the procedural requirements outlined in the TCHRA.”
Chatha, 381 S.W.3d at 513–14.
B. Exhaustion of Administrative Remedies
A person claiming a violation of the TCHRA must first exhaust her
administrative remedies prior to filing suit. Waffle House, Inc. v. Williams, 313
S.W.3d 796, 804 (Tex. 2010); Chatha, 381 S.W.3d at 513–14 (same). To exhaust
9 administrative remedies under the TCHRA, a plaintiff must (1) file a sworn, written
complaint with TWC within 180 days of the alleged discriminatory act, (2) allow the
TWC 180 days to dismiss or resolve the complaint, and (3) file suit in district court
within sixty days of receiving a right to sue letter from TWC and no later than two
years after filing the complaint. See TEX. LAB. CODE §§ 21.202, .208, .254, .256.
The filing of a timely complaint with TWC is a jurisdictional prerequisite to filing
suit under the TCHRA. See Lopez v. Tex. State Univ., 368 S.W.3d 695, 701 (Tex.
App.—Austin 2012, pet. denied) (“The exhaustion of administrative remedies is a
jurisdictional prerequisite to filing suit for unlawful employment practices.”) (citing
Specialty Retailers, Inc. v. DeMoranville, 933 S.W.2d 490, 492 (Tex. 1996)); Santi
v. Univ. of Tex. Health Sci. Ctr. at Hous., 312 S.W.3d 800, 804 (Tex. App.—Houston
[1st Dist.] 2009, no pet.) (“Failure to timely file an administrative complaint deprives
Texas trial courts of subject-matter jurisdiction.”).
If a complaint filed with TWC suffers from technical defects or omissions,
including the failure to verify the complaint, the complaint may be amended to cure
these defects. TEX. LAB. CODE § 21.201(e).3 An amendment to a complaint relates
back to the date the complaint was first received by TWC. Id. § 21.201(f); see also
Hennigan v. I.P. Petroleum Co. Inc., 858 S.W.2d 371, 373 (Tex. 1993) (holding “a
3 Section 21.201(e) provides that a “complaint may be amended to cure technical defects or omissions, including a failure to verify the complaint or to clarify and amplify an allegation made in the complaint.” TEX. LAB. CODE § 21.201(e).
10 verified complaint filed outside of the 180-day time limit relates back to, and
satisfies any deficiencies in an unverified questionnaire filed within the 180-day
limit, therefore satisfying the 180-day jurisdictional requirement of section
[21.202(a)]”).
C. Standard of Review
Because immunity from suit implicates a court’s subject matter jurisdiction, a
governmental entity can assert immunity from suit in a plea to jurisdiction. See
Dohlen v. City of San Antonio, 643 S.W.3d 387, 392 (Tex. 2022) (stating immunity
from suit is “properly raised in a plea to the jurisdiction” because it “implicates a
court’s subject-matter jurisdiction”). “The party suing the governmental unit bears
the burden of affirmatively showing waiver of immunity.” City of San Antonio v.
Maspero, 640 S.W.3d 523, 528 (Tex. 2022).
We review a court’s ruling on a plea to the jurisdiction de novo. See City of
Elsa v. Gonzalez, 325 S.W.3d 622, 625 (Tex. 2010). When reviewing a trial court’s
ruling on a challenge to its jurisdiction, we consider the plaintiff’s pleadings and
factual assertions, as well as any evidence relevant to the jurisdictional issue. See
id. We construe pleadings liberally in favor of the plaintiff, look to the pleader’s
intent, and determine if the pleader has alleged facts affirmatively demonstrating the
court’s jurisdiction. Id. (citing Tex. Dep’t of Parks & Wildlife v. Miranda, 133
S.W.3d 217, 226 (Tex. 2004).
11 If a plea challenges the existence of jurisdictional facts, we apply the
procedure and standard of review applicable to summary judgments. See Miranda,
133 S.W.3d at 227–28. We consider the relevant jurisdictional evidence submitted
by the parties, taking as true all evidence favorable to the plaintiff, indulging all
reasonable inferences and resolving all doubts in the plaintiff’s favor. Id. at 228. If
the defendant asserts, and supports with evidence, that the trial court lacks subject
matter jurisdiction, the burden shifts to the plaintiff to show there is a disputed
material fact concerning jurisdiction. Id. If the jurisdictional evidence, considered
in the light most favorable to the plaintiff, raises at least a question of fact as to the
jurisdictional issue, the plea must be denied, leaving the matter to be resolved by the
factfinder. Id. at 227–28.
Timeliness of Moody’s Complaint
In their second issue, Lakeview and the City argue the trial court erred by
denying their Plea to the Jurisdiction because Moody failed to file her charge of
discrimination within 180-days of August 3, 2021—the date she was notified that
the Lakeview Police Commission had denied her request for additional leave—and
thus Moody failed to satisfy one of the jurisdictional prerequisites to filing suit under
the TCHRA. See Czerwinski v. Univ. of Tex. Health Science Ctr., 116 S.W.3d 119,
121 (Tex. App.—Houston [14th Dist.] 2002, pet. denied) (stating failure to file
timely administrative complaint deprives courts of subject matter jurisdiction).
12 Moody responds that the trial court did not err in denying the Plea because
although she filed a Charge of Discrimination on May 25, 2022, she first filed her
complaint with TWC on December 27, 2021, well within 180-days of the alleged
discriminatory conduct. See TEX. LAB. CODE § 21.202 (requiring complainant file
complaint with TWC within 180 days of alleged discriminatory act). Moody argues
that Lakeview and the City “conflated the terms ‘complaint’ and ‘charge of
discrimination’ to confuse the issue.”
The record reflects that on December 27, 2021, Moody filed an “Employment
Discrimination Complaint Form” with TWC, which is also referred to as a
“TWCCRD Inquiry Form.” In the unsworn form, Moody stated that she was hired
on August 20, 2020 as a police officer and that in July 2021, seven days “after labor
via c-section,” she received a letter “demanding [her] return 5 weeks after surgery
to regular patrol” even though her doctor had not cleared her to perform regular
duties. Moody alleged that the Lakeview Chief of Police refused her request “for
reasonable accommodations” to return to light duty and that later, when she
requested additional unpaid leave, the “police commissioners” discussed her request
during an executive committee and voted to terminate her employment “due to [her]
medical condition.”
Because it is unsworn, Moody’s complaint is deficient, but it otherwise
satisfies the requirements of Section 21.201 of the TCHRA in that it is in writing,
13 states that her employment was terminated for an unlawful reason, provides facts
upon which her claim is based, and sufficiently identifies the persons involved in the
complained of discriminatory actions. See TEX. LAB. CODE § 21.201(b)–(c) (stating
complaint “must be in writing and made under oath . . . [and] must state: (1) that an
unlawful employment practice has been committed; (2) the facts on which the
complaint is based . . . , and (3) facts sufficient to enable the commission to identify
the respondent”). On January 14, 2022, TWC sent Moody a “TWCCRD STATUS
OF COMPLAINT NOTICE,” confirming that Moody’s “Complaint Form” had been
received and accepted by TWC on December 27, 2021. TWC’s notice stated that
Moody’s “complaint [is currently] assigned to Gomez Hilsi[,]is in queue for a
drafted charge [of discrimination]” and “[o]nce the draft has been completed it will
be sent to you via DocuSign and your signature will be required within 14 calendar
days.” Moody filed a verified Charge of Discrimination with TWC on May 25,
2022.
Lakeview and the City concede that under Section 21.201(f) of the Labor
Code, a deficient complaint may be cured and that the amended complaint relates
back to the date on which the complaint was first received by TWC. See id.
§ 21.201(f) (stating amended complaint relates back to date complaint was first
received by TWC). They nonetheless argue that Section 21.201(f) does not apply
because “there are no pleaded facts here, and no evidence in the record to show, that
14 [Moody] complied with TWC’s requirement that she perfect the complaint within
14 calendar days of receiving the drafted charge.” We reject this argument.
The request from TWC that Moody sign and return the Charge of
Discrimination within fourteen days of receiving the draft charge is not statutory.
There is also no evidence in the record reflecting when Moody received the Charge
of Discrimination from TWC for signature or establishing that Moody failed to sign
and return the Charge of Discrimination within fourteen days of receipt.
Lakeview and the City also have not directed us to, nor have we found, any
authority stating that the relation-back rule in Section 21.201 requires anything more
than the filing of a verified complaint to cure a deficient complaint. See id.
§§ 21.201(e)–(f) (stating if complaint filed with TWC within 180-days of
discriminatory act suffers from technical defects or omissions, plaintiff may cure
defects after 180-day period and corrected complaint relates back to the date of
complaint first received by TWC). The record reflects that Moody originally filed
an unverified complaint on December 27, 2021, that TWC received and accepted
her complaint on January 14, 2022, and that she later filed a verified Charge of
Discrimination on May 25, 2022. The verified complaint cured the deficiency
identified by Lakeview and the City, and under Section 21.202, it related back to the
filing of Moody’s original complaint on December 27, 2021. See id; see also
Hennigan, 858 S.W.2d at 373 (holding “a verified complaint filed outside of the 180-
15 day time limit relates back to, and satisfies any deficiencies in an unverified
questionnaire filed within the 180-day limit, therefore satisfying the 180-day
jurisdictional requirement of section [21.202(a)]”). TWC accepted Moody’s
complaint and engaged the parties in mediation, ultimately issuing a Notice of
Dismissal and Right to File Civil Action. This is evidence that Moody’s complaint
was timely. See TEX. LAB. CODE § 21.202(b) (“The commission shall dismiss an
untimely complaint.”); City of La Joya v. Ortiz, No. 13-06-401-CV, 2007 WL
293019, at *3 (Tex. App.—Corpus Christi–Edinburg Feb. 1, 2007, no pet.) (mem.
op.) (“The fact that the Texas Workforce Commission issued a right-to-sue letter,
instead of dismissing the complaint as untimely, is additional evidence that the
complaint was timely filed” and “creates a genuine issue of material fact regarding
whether Ortiz timely filed her complaint.”).
At a minimum, Moody’s timely but unverified complaint, verified Charge of
Discrimination, and TWC’s Notice of Dismissal and Right to File Civil Action
created a genuine issue of material fact regarding whether Moody timely filed her
complaint, thus precluding dismissal of her claim. See Miranda, 133 S.W.3d at 227–
28 (stating plea to jurisdiction must be denied if jurisdictional evidence, considered
in light most favorable to plaintiff, raises at least question of fact as to jurisdictional
issue). The trial court thus did not err by denying Lakeview’s and the City’s Plea to
16 the Jurisdiction based on Moody’s alleged failure to exhaust administrative
remedies.
We overrule Lakeview’s and the City’s second issue.
The City’s Plea
In its first issue, the City argues for the first time on appeal that the trial court
erred in denying its Plea to the Jurisdiction because the City is a distinct legal entity
from Lakeview, the City was not Moody’s employer, and Moody’s pleadings and
jurisdictional facts establish that all employment decisions were made by Lakeview,
not the City. Although the City did not originally raise this issue in its Plea, we must
consider its immunity argument on appeal. See Dall. Metrocare Servs. v. Juarez,
420 S.W.3d 39, 41 (Tex. 2013) (“[A]n appellate court must consider all of a
defendant’s immunity arguments, whether the governmental entity raised other
jurisdictional arguments in the trial court or none at all.”) (citing Rusk State Hosp. v.
Black, 392 S.W.3d 88, 94 (Tex. 2012)).
Moody first objects to the City’s argument claiming that “at no point, between
the complaint initially filed with the TWC in 2021, the mediation led by the TWC,
or the underlying filings with the trial court did Appellant City of [El] Lago ever
object to being a proper party.” Subject matter jurisdiction, however, cannot be
waived, and as we have noted, the City may raise this issue for the first time on
appeal. See State v. Morello, 547 S.W.3d 881, 888–89 (Tex. 2018) (stating
17 “challenges to lack of subject matter jurisdiction may be raised for the first time on
appeal”); see also Dall. Metrocare Servs., 420 S.W.3d at 41 (holding governmental
entity may raise new immunity arguments on appeal).
Addressing the merits of the City’s argument, Moody argues that the City
“created and provides the funds for the running of the Lakeview Police Department”
and thus “the City of El Lago participates in the management of Lakeview Police
Department and may have indirect control of its employees.” The TCHRA,
however, waives immunity only for governmental “employers” and Moody has not
directed us to, nor have we found, any authority extending the TCHRA’s waiver of
immunity to governmental entities that create, fund, have a role in the management
of an employer, or have “indirect control of its employees.” See TEX. LAB. CODE
§ 21.051 (prohibiting employers from engaging in unlawful employment practices).
In her appellate brief, Moody asserts she was hired as a police officer by
Lakeview, and she does not dispute that the City was not her employer or that her
pleadings and jurisdictional facts establish that Lakeview made the employment
decisions about which she complains. Moody’s complaint, her Charge of
Discrimination, and her Original Petition also make clear that the decisions about
which she complains were made by Lakeview. In her Charge of Discrimination,
Moody alleged that on July 9, 2021, a few days after her C-section, she received a
letter from Lakeview Chief of Police Carl Nunn stating she had to return to work
18 and regular duties on August 6, 2021. She then requested to be placed on light duty
and “[Chief] Carl Nunn [] denied my request and told me that he could only offer
me a demotion to an unpaid position.” According to Moody, she then requested
unpaid leave and she presented this request to Lakeview Police Commissioners Rob
O’Donel and Michael O’Brien, who discussed this request during an executive
meeting and “voted to terminate [her] employment.” In her TWC complaint filed
on December 27, 2021, in the blank requesting the name and title of the persons
“who did the harm,” Moody identified Lakeview Police Chief Carl Nunn and
Lakeview Police Commissioners Jeff Corbin, Rob O’Donel, and Michael O’Brien.
In her Original Petition, Moody alleges that Lakeview Chief of Police Carl
Nunn mailed her a certified letter a few days after her C-section stating “she had to
return to work and regular duties on August 6, 2021” and that the members of the
Lakeview Police Commission who, in part, made the employment decisions were
O’Donel and O’Brien. Moody does not identify in her Charge of Discrimination or
in her Original Petition any City employees or officials she contends engaged in any
discriminatory conduct. And the letters and communications Moody identifies in
her Charge of Discrimination and Original Petition as reflecting the purported
discriminatory conduct reflect communications with Lakeview Chief of Police Carl
Nunn and the Lakeview Police Commissioners.
19 “When a defendant raises a jurisdictional argument for the first time on
appeal, remand may be appropriate to afford the plaintiff ‘a fair opportunity to
address’ the jurisdictional argument.” Harris Cnty. v. Annab, 547 S.W.3d 609, 616
(Tex. 2018) (quoting Rusk, 392 S.W.3d at 96). If, however, the party asserting the
jurisdictional defense, in this case the City, establishes that (1) “the pleadings or
record . . . conclusively negate the existence of jurisdiction,” (2) the plaintiff did in
fact have a “full and fair opportunity in the trial court to develop the record and
amend the pleadings,” or (3) even with a remand “the plaintiff would be unable to
show the existence of jurisdiction,” the case should be dismissed without a remand.
Rusk, 392 S.W.3d at 96–97.
Moody has not requested an opportunity to replead to address the City’s
immunity argument should her pleadings be found deficient, nor has she suggested
how an amendment would cure the identified jurisdictional defect. See Tex. A & M
Univ. System v. Koseoglu, 233 S.W.3d 835, 840 (Tex. 2007) (“[W]e agree that
Koseoglu deserves the opportunity to amend his pleadings if the defects can be
cured. But Koseoglu’s pleading defects cannot be cured, and he has made no
suggestion as to how to cure the jurisdictional defect.”). Furthermore, in response
to the City’s argument, Moody does not dispute that the City was not her employer
or that her pleadings and the jurisdictional facts identify Lakeview Chief of Police
Nunn and Lakeview Police Commissioners Corbin, O’Donel, and O’Brien as the
20 persons who made the employment decisions about which she complains. Moody
does not allege these actors worked for the City, nor does she identify any City actors
who were involved in the purported discriminatory conduct. See id. at 837 (stating
“when a pleading cannot be cured of its jurisdictional defect, a plaintiff is not entitled
to amend”). Moody also does not suggest that any amount of further discovery
would alter these undisputed jurisdictional facts. We thus conclude that remand is
inappropriate because no amount of future discovery or rephrasing of the allegations
could properly waive the City’s jurisdiction. See Annab, 547 S.W.3d at 616
(concluding court of appeals erred in remanding case to trial court to allow plaintiff
to replead and conduct additional discovery where no amount of discovery or
rephrasing of allegations could result in plaintiff’s establishing county’s liability for
deputy constable’s off-duty criminal act).
Even assuming Moody’s pleadings were sufficient, Moody does not challenge
the jurisdictional fact that she was employed by Lakeview, which provides an
alternative ground requiring the grant of the City’s Plea. See Miranda, 133 S.W.3d
at 227–28 (stating plea to jurisdiction must be granted if evidence conclusively
establishes jurisdictional fact). Because Moody does not dispute the City was not
her employer and the TCHRA only applies to “employers,” the TCHRA does not
waive the City’s immunity to suit.
We sustain the City’s first issue.
21 Conclusion
We affirm the trial court’s interlocutory order denying Lakeview’s Plea to the
Jurisdiction, reverse the trial court’s interlocutory order denying the City’s Plea to
the Jurisdiction, and render judgment dismissing Moody’s suit against the City for
lack of subject matter jurisdiction.
Veronica Rivas-Molloy Justice
Panel consists of Justices Rivas-Molloy, Johnson, and Dokupil.