Opinion issued May 9, 2023
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-22-00357-CV ——————————— SIX BROTHERS CONCRETE PUMPING, LLC, Appellant V. TEXAS WORKFORCE COMMISSION AND MARTIN TOMCZAK, Appellees
On Appeal from the 269th District Court Harris County, Texas Trial Court Case No. 2021-48218
OPINION
Six Brothers Concrete Pumping, LLC, appeals the trial court’s order granting
the Texas Workforce Commission’s plea to the jurisdiction. Six Brothers contends
that, although it failed to comply with a mandatory venue requirement, the requirement is not a jurisdictional bar to suit, and the commission waived any
objections to improper venue. In this issue of first impression, we conclude the
mandatory venue requirement in Chapter 61 of the Labor Code is a statutory
prerequisite to suit, making failure to adhere to it a jurisdictional bar to suit.
Therefore, we affirm the trial court’s order granting the commission’s plea to the
jurisdiction and dismissing the suit.
BACKGROUND
The relevant facts are simple and undisputed. Martin Tomczak, a former
employee of Six Brothers, filed a wage claim with the commission against Six
Brothers under Chapter 61 of the Labor Code. The commission found Six Brothers
owed Tomczak $1,000 in unpaid wages. Six Brothers challenged the commission’s
finding by filing suit against Tomczak and the commission in district court in Harris
County.
After the suit had been pending for about six months, the commission filed a
plea to the jurisdiction, claiming that Chapter 61 imposed mandatory venue in the
county where Tomczak resided, which was Montgomery County. The commission
argued that because the mandatory venue requirement had not been satisfied, the
district court lacked jurisdiction to hear the case. Six Brothers argued that the
mandatory venue requirement was not jurisdictional, and the commission waived its
objection to improper venue by answering without objection. The district court
2 agreed with the commission and granted its plea to the jurisdiction, dismissing the
case. Six Brothers now appeals.
It is undisputed that Six Brothers filed suit in a venue other than the venue
mandated by statute; the only dispute is whether the commission waived its objection
to the improper venue or whether, in this suit against a governmental entity, venue
is a statutory prerequisite that implicates the court’s jurisdiction and may be raised
at any time.
STANDARD OF REVIEW
Sovereign immunity generally bars suits against the state and its agencies
unless the state consents to suit and waives its immunity. Nazari v. State, 561 S.W.3d
495, 500 (Tex. 2018); Prairie View A&M Univ. v. Chatha, 381 S.W.3d 500, 512
(Tex. 2012). A claim of immunity implicates a court’s subject-matter jurisdiction
and is properly raised by a plea to the jurisdiction. Engelman Irrigation Dist. v.
Shields Bros., Inc., 514 S.W.3d 746, 751 (Tex. 2017); Tex. Dep’t of Parks & Wildlife
v. Miranda, 133 S.W.3d 217, 225–26 (Tex. 2004). Subject-matter jurisdiction is an
issue that cannot be waived by the parties and may be raised at any time. Tex. Ass’n
of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 445 (Tex. 1993). Whether a court
has subject-matter jurisdiction is a question of law, and accordingly we review a trial
court’s ruling on a plea to the jurisdiction de novo. Miranda, 133 S.W.3d at 226,
228.
3 APPLICABLE LAW
Wage Claims
Chapter 61 of the Labor Code governs the payment of wages to employees in
this state. TEX. LAB. CODE §§ 61.001–.095. If an employee is not paid in accordance
with that chapter, the employee may file a wage claim with the commission. Id.
§ 61.051. After exhausting administrative remedies within the commission, either
the employee—the wage claimant—or the employer may bring suit to appeal the
commission’s order. Id. § 61.062(a). The suit must be filed within 30 days of the
date the commission’s order is mailed and must name the commission as a
defendant. Id. § 61.062(b), (c). Section 61.062(d) of the Labor Code establishes a
mandatory venue for the suit: “The suit must be brought in the county of the [wage]
claimant’s residence.” Id. § 61.062(d).
Section 61.062 of the Labor Code waives the commission’s sovereign
immunity to suit, but it is a limited waiver; a party can bring suit against the
commission under that section if the party strictly satisfies the procedural
requirements outlined in that section. See Chatha, 381 S.W.3d at 513–14 (discussing
Chapter 21 of Labor Code).
Statutory Prerequisites in Suits against Government
We defer to the legislature to waive sovereign immunity, and any waiver must
be “clear and unambiguous.” TEX. GOV’T CODE § 311.034; Tooke v. City of Mexia,
4 197 S.W.3d 325, 332–33 (Tex. 2006). Following the Supreme Court’s decision in
University of Texas Southwestern Medical Center at Dallas v. Loutzenhiser, 140
S.W.3d 351, 354 (Tex. 2004), holding the plaintiff’s failure to comply with a
statutory pre-suit notice requirement in a suit against a governmental entity did not
deprive the trial court of jurisdiction, the legislature in 2005 added a final sentence
to Section 311.034 of the Government Code, legislatively overruling the Court’s
holding. The final sentence of Section 311.034 provides:
Statutory 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. Thus, following the legislature’s enactment of this
final sentence of Section 311.034, when a statutory prerequisite to suit is not met in
a suit against a governmental entity, the suit must be dismissed for lack of
jurisdiction. See id.; Chatha, 381 S.W.3d at 515–16 (dismissing suit against
governmental entity because plaintiff failed to meet statutory prerequisite).
The Texas Supreme Court defined “statutory prerequisite” for the purpose of
applying the final sentence of Section 311.034. See Chatha, 381 S.W.3d at 511–12.
A statutory prerequisite is a requirement that: (1) is found in the relevant statute; (2)
is required by the relevant statute; and (3) must be met before the suit is filed. Id.
The Court applied this definition in Chatha to conclude that a 180-day filing
deadline for discrimination suits was a statutory prerequisite, and the plaintiff who
failed to meet that deadline must have her claim dismissed for lack of jurisdiction. 5 Id. at 513–14. “[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.” Id. at 515.
Venue
Venue is the “geographic location within the forum where [a] case may be
tried.” In re Fox River Real Est. Holdings, Inc., 596 S.W.3d 759, 762 (Tex. 2020)
(orig. proceeding) (alteration in original) (quoting Cantu v. Howard S. Grossman,
P.A., 251 S.W.3d 731, 734 (Tex. App.—Houston [14th Dist.] 2008, pet. denied)).
Venue is not synonymous with subject-matter jurisdiction. Gordon v. Jones, 196
S.W.3d 376, 383 (Tex. App.—Houston [1st Dist.] 2006, no pet.). Venue typically
refers to the county in which a suit may be tried, whereas subject-matter jurisdiction
refers to a court’s power to hear a particular type of suit. Id. at 382–83. Generally,
venue is not jurisdictional. See Brown v. Owens, 674 S.W.2d 748, 751 (Tex. 1984)
(filing suit in improper venue did not deprive court of jurisdiction). Venue, even
mandatory venue requirements, can be waived “if not challenged in due order and
on a timely basis.” Gordon, 196 S.W.3d at 383. We presume in most cases the
legislature did not intend to make any statutory requirement jurisdictional, favoring
instead the finality of judgments and reducing their vulnerability to later challenges.
City of DeSoto v. White, 288 S.W.3d 389, 393–94 (Tex. 2009); Dubai Petroleum Co.
v. Kazi, 12 S.W.3d 71, 76 (Tex. 2000). Because venue is generally not a
6 jurisdictional requirement, if a plaintiff files suit in an improper venue, the defendant
may usually move to transfer venue. See TEX. CIV. PRAC. & REM. CODE § 15.063
(court, on party’s motion, shall transfer action to proper venue if filed in improper
venue); TEX. R. CIV. P. 86 (motion to transfer venue).
The question in this case is whether the mandatory venue requirement in
Section 61.062(d) of the Labor Code is a statutory prerequisite to suit against a
governmental entity such that, if the requirement is not met when suit is filed, it
deprives the trial court of subject-matter jurisdiction.
DISCUSSION
In a single issue on appeal, Six Brothers argues the trial court erred in granting
the commission’s plea to the jurisdiction because venue generally is not a statutory
prerequisite implicating jurisdiction and because the commission waived any
objection to the improper venue.
Six Brothers cites Kshatrya v. Texas Workforce Commission, which held that
the mandatory venue requirement in Section 61.062(d) of the Labor Code was not a
jurisdictional requirement. 97 S.W.3d 825, 831 (Tex. App.—Dallas 2003, no pet.).
However, Kshatrya was decided before the legislature enacted the final sentence of
Section 311.034 of the Government Code, which makes all statutory prerequisites
to suit against a governmental entity jurisdictional. TEX. GOV’T CODE § 311.034.
Although the Kshatrya court concluded “there is nothing in the statutory language
7 suggesting [Section 61.062(d)] is a jurisdictional prerequisite,” Kshatrya, 97 S.W.3d
at 831, the court could not consider whether the mandatory venue requirement is a
statutory prerequisite within the meaning of the final sentence of Section 311.034
because the legislature had not enacted the final sentence at that time.1 Kshatrya does
not answer the question in this case: whether Section 61.062(d)’s mandatory venue
requirement is a statutory prerequisite to suit within the meaning of Section 311.034.
The commission, on the other hand, cites Landbase, Inc. v. Texas Employment
Commission, an opinion that predates both Kshatrya and the enactment of the final
sentence of Section 311.034. 885 S.W.2d 499 (Tex. App.—San Antonio 1994, writ
denied). Landbase held that the mandatory venue requirement in Section 61.062(d)
of the Labor Code was a jurisdictional requirement. Id. at 501. As with Kshatrya,
however, this case does not apply the final sentence of Section 311.034 of the
Government Code because it was decided before the legislature added that sentence,
1 Additionally, the Kshatrya court’s holding was also based on a factor the Supreme Court has since indicated should not be considered in determining whether a statutory requirement is jurisdictional. The Kshatrya court wrote: “If the statutory requirement defines, enlarges, or restricts the class of causes the court may decide or the relief the court may award, the requirement is jurisdictional.” Kshatrya, 97 S.W.3d at 830–31 (citing Sierra Club v. Tex. Nat. Res. Conservation Comm’n, 26 S.W.3d 684, 688 (Tex. App.—Austin 2000), aff’d on other grounds, 70 S.W.3d 809 (Tex. 2002)). But the Supreme Court has since declined to consider this factor. Tex. Mut. Ins. Co. v. Chicas, 593 S.W.3d 284, 290 (Tex. 2019) (“Other courts of appeals, including the court in this case, have followed Sierra Club and recognized this as a consideration when determining whether a statutory requirement is jurisdictional. However, we decline to consider factors other than those set out in our precedent.” (citations omitted)). 8 and further, this case relies on a precedent the Supreme Court has explicitly
overruled. The court in Landbase explained that when a cause of action is created
by statute, rather than the common law, the parties must strictly comply with all
statutory requirements or else the court lacks jurisdiction. Id. (citing Mingus v.
Wadley, 285 S.W. 1084, 1087 (Tex. 1926), overruled by Kazi, 12 S.W.3d at 76). But
the Supreme Court overruled the precedent establishing this rationale. Kazi, 12
S.W.3d at 76 (“We therefore overrule Mingus to the extent that it characterized the
plaintiff’s failure to establish a statutory prerequisite as jurisdictional.”). Because
Landbase was decided before the legislature enacted the final sentence of Section
311.034 of the Government Code and relies on an outdated rationale, Landbase also
does not resolve the question in the present case: whether the mandatory venue
requirement in Section 61.062(d) of the Labor Code is a statutory prerequisite to suit
within the meaning of Section 311.034.
As neither case cited by the parties directly answers the question in this case,
we turn to the factors the Supreme Court laid out in Chatha to determine whether a
statutory requirement is a jurisdictional statutory prerequisite in a suit against a
governmental entity. A statutory prerequisite is a requirement that: (1) is found in
the relevant statute; (2) is required by the relevant statute; and (3) must be met before
the suit is filed. Chatha, 381 S.W.3d at 511–12. If a requirement is a statutory
prerequisite and the suit is against a governmental entity, then the final sentence of
9 Section 311.034 of the Government Code applies to make the statutory prerequisite
a jurisdictional requirement. See id. at 512; TEX. GOV’T CODE § 311.034.
In this case, the relevant statute provides: “The suit must be brought in the
county of the claimant’s residence.” TEX. LAB. CODE § 61.062(d).
The first two Chatha factors are easily satisfied here. The mandatory venue
requirement in Section 61.062(d) of the Labor Code is found in the relevant statute
and is required by it. See Chatha, 381 S.W.3d at 511–12. We must determine
whether the third factor is satisfied—whether the mandatory venue requirement must
be met before the suit is filed. See id. at 512 (“[T]he term ‘pre’ indicates the
requirement must be met before the lawsuit is filed.”).
The term “must” in a statute creates a condition precedent. City of
Madisonville v. Sims, 620 S.W.3d 377, 379 (Tex. 2020) (per curiam); TEX. GOV’T
CODE § 311.016(3) (in statutory construction, “‘[m]ust’ creates or recognizes a
condition precedent”). “A condition precedent is an event that must happen or be
performed before a right can accrue to enforce an obligation.” Centex Corp. v.
Dalton, 840 S.W.2d 952, 956 (Tex. 1992) Here, Section 61.062(d)’s mandatory
venue requirement, which provides a suit must be filed in the county of the
claimant’s residence, creates a condition precedent to suit, and this condition
precedent is a statutory prerequisite. We conclude that Section 61.062(d)’s
mandatory venue requirement is a statutory prerequisite to suit.
10 This conclusion is consistent with the Texas Supreme Court’s holding in City
of Madisonville v. Sims, in which the Court reasoned that a statutory requirement
that a plaintiff “must sue” within 90 days to obtain relief created a condition
precedent and thus a jurisdictional prerequisite to suit.2 620 S.W.3d at 379.
This conclusion is also consistent with the Austin court of appeals’s holding
in Scott v. Presidio Independent School District, concluding a statutory venue
requirement was a statutory prerequisite to suit that could deprive the trial court of
jurisdiction under Section 311.034. 266 S.W.3d 531, 535–36 (Tex. App.—Austin
2008), rev’d on other grounds sub nom. Presidio Indep. Sch. Dist. v. Scott, 309
S.W.3d 927 (Tex. 2010). In Scott, the relevant statute allowed a judicial appeal of
an administrative decision to be brought in district court in Travis County “if agreed
by all parties.” Id. at 533 (quoting TEX. EDUC. CODE § 21.307(a)(2)). The court
noted, and both sides agreed, that the statute was a venue requirement, and, “as a
general rule,” venue requirements are not jurisdictional. Id. at 535–36. But, the court
2 This conclusion is also consistent with other cases that have held all statutory requirements to suit, even if typically capable of being satisfied after filing suit, must be satisfied before the jurisdictional filing deadline to confer jurisdiction on the court in a suit against a governmental entity. Stoker v. TWC Comm’rs, 402 S.W.3d 926, 930 (Tex. App.—Dallas 2013, no pet.) (concluding failure to name necessary defendant before jurisdictional filing deadline deprived trial court of jurisdiction); accord Richardson v. Tex. Workforce Comm’n, No. 01-13-00403-CV, 2014 WL 2538621, at *3 (Tex. App.—Houston [1st Dist.] June 5, 2014, pet. denied) (mem. op.) (“The requirement to name all defendants within the 14–day filing deadline is a jurisdictional requirement that [the plaintiff] had to satisfy.”).
11 explained, even though venue requirements generally are not jurisdictional, the
mandatory nature of the statute at issue “plainly [made it] a condition that must be
satisfied” before a judicial proceeding could be brought in Travis County. Id. at 535.
As such, it was a statutory prerequisite to suit, and Section 311.034 makes any
statutory prerequisite to suit against a government entity jurisdictional. Id. at 535–
36.
The court in Scott also noted that courts have used the term “statutory
prerequisite” to include a number of procedural irregularities that are not otherwise
considered jurisdictional, and even the Supreme Court used the term “statutory
prerequisite” to describe the venue provision at issue in Mingus. Id. at 536 (citing
Dubai, 12 S.W.3d at 76). We must presume the legislature was aware the term has
acquired this meaning in caselaw, and we must give effect to its intent in using the
term in Section 311.034. Id. (citing Acker v. Tex. Water Comm’n, 790 S.W.2d 299,
301 (Tex. 1990); TEX. GOV’T CODE § 311.011(b)).
In response to the commission’s claim that Section 311.034 of the
Government Code legislatively overruled Kshatrya’s holding, Six Brothers argues
that more recent cases have affirmed Kshatrya’s holding that the mandatory venue
requirement in Section 61.062(d) of the Labor Code is not jurisdictional, citing Texas
Underground, Inc. v. Texas Workforce Commission, 335 S.W.3d 675 (Tex. App.—
Dallas 2011, no pet.). See id. at 674 n.1 (“This Court has concluded that subsection
12 (d)’s venue provision is not a jurisdictional requirement.” (citing Kshatrya, 97
S.W.3d at 832)). Notably, though, Texas Underground does not mention Section
311.034 of the Government Code. Texas Underground mentions Kshatrya in
passing3 but does not address whether the legislature’s enactment of the final
sentence of Section 311.034 overruled Kshatrya’s holding.
Six Brothers also argues venue is not a jurisdictional requirement, citing many
cases in support. See, e.g., Tex. Emps. Ins. Ass’n v. Singleton, 616 S.W.2d 232, 235
(Tex. App.—San Antonio 1980, writ ref’d n.r.e.) (venue provision not
jurisdictional). While that is the general rule, the issue in this case is whether the
legislature’s enactment of the final sentence of Section 311.034 of the Government
Code makes a mandatory venue requirement a jurisdictional requirement in suits
against a governmental entity, an issue that is not resolved in Kshatrya or any of the
3 We note that the reasoning the Texas Underground court followed to reach its conclusion that the statutory requirement at issue was not jurisdictional has been called into question. The Texas Underground court relied in part on Kshatrya and on the principle that a statute that defines, enlarges, or restricts the class of causes a court may decide is jurisdictional, Tex. Underground, 335 S.W.3d at 675, but the Supreme Court later said this is not a factor to consider in deciding whether a statutory requirement is jurisdictional, see Chicas, 593 S.W.3d at 290.
Additionally, the Texas Underground court concluded the statutory requirement in that case was not jurisdictional in part because “[n]othing in the statutory language suggests this deadline is a jurisdictional prerequisite to suit.” Tex. Underground, 335 S.W.3d at 675. However, the Supreme Court in Chatha, which was decided a year later, rejected the suggestion that the legislature must “specifically articulate in every instance that a plaintiff must comply with a provision or be barred from filing suit,” because that would render the final sentence of Section 311.034 meaningless. Chatha, 381 S.W.3d at 514. 13 cases Six Brothers cites. But see Scott, 266 S.W.3d at 535–36 (concluding mandatory
venue provision was jurisdictional statutory prerequisite to suit against
governmental entity in light of Section 311.034 despite venue generally not being
jurisdictional requirement).
In sum, the mandatory venue requirement in Section 61.062(d) of the Labor
Code provides that a suit “must be brought in the county of the claimant’s residence.”
TEX. LAB. CODE § 61.062(d). The term “must” creates a condition precedent, which
is a statutory prerequisite to suit. TEX. GOV’T CODE § 311.016(3); Sims, 620 S.W.3d
at 379. A suit under Section 61.062 is necessarily a suit against a governmental entity
because the commission must be named as a defendant. TEX. LAB. CODE § 61.062(c).
Therefore, Section 61.062(d)’s mandatory venue requirement is a statutory
prerequisite to suit against a governmental entity, so it is a jurisdictional requirement.
See TEX. GOV’T CODE § 311.034. Failure to adhere to the mandatory venue
requirement is a jurisdictional bar to suit. See Chatha, 381 S.W.3d at 512.
Applying this conclusion to the facts of this case, the trial court did not err in
granting the commission’s plea to the jurisdiction. Six Brothers did not comply with
Section 61.062(d)’s mandatory venue requirement, which is a jurisdictional bar to
suit that cannot be waived and can be raised in a plea to the jurisdiction at any time.
See Shields Bros., 514 S.W.3d at 751; Chatha, 381 S.W.3d at 512; Miranda, 133
S.W.3d at 225–26; Tex. Ass’n of Bus., 852 S.W.2d at 445.
14 CONCLUSION
We affirm the trial court’s order granting the commission’s plea to the
Gordon Goodman Justice
Panel consists of Chief Justice Adams and Justices Kelly and Goodman.