Opinion Released November 16, 2017

Joan Price v. University of Texas at Brownsville-Texas Southmost College, No. 13-16-00351-CV (Memorandum Opinion by Justice Contreras; Panel Members: Chief Justice Valdez and Justice Hinojosa)

In this appeal from an order denying the plaintiff’s bill of review, the Thirteenth Court of Appeals discussed the procedural timeline for filing a suit under the Texas Labor Code.

Joan Price sued the University of Texas at Brownsville-Texas Southmost College (“UTB-TSC”) in 2011, claiming she suffered discrimination and retaliation when UTB-TSC forced her to resign and then failed to rehire her. The trial court set the case for trial on November 5, 2012. On October 3, 2012, UTB-TSC filed a plea to the jurisdiction based on sovereign immunity, a motion for summary judgment, and a motion for continuance of the trial date based on a scheduling conflict. The court set all three motions for a hearing on October 29, 2012.  Four days before the hearing, Price’s counsel faxed a letter to the court indicating that he had a scheduling conflict and could not attend the October 29 hearing, but that he agreed to UTB-TSC’s requested continuance.

The trial court held the scheduled hearing on October 29, 2012. The court noted on the record that there was nothing in the file indicating Price’s unavailability, then granted UTB-TSC’s plea to the jurisdiction without addressing the other motions.

On November 28, 2012, Price moved to reinstate her case under Texas Rule of Civil Procedure 165a(3). UTB-TSC argued that Rule 165a(3) was inapplicable because the case was dismissed for want of jurisdiction, not want of prosecution. The trial court initially set a hearing to determine a trial date before realizing the order was erroneous and issuing a new order setting a hearing on Price’s motion to reinstate on February 28, 2013. After the hearing, the court found that the motion to reinstate had already been overruled by operation of law on January 12, 2013, and that the trial court lost plenary power on February 11, 2013. Regardless, the trial court stated that Rule 329b was not applicable and Price should have filed a motion for new trial rather than a motion to reinstate.

Price filed a petition for bill of review, asking the court to reinstate the case. UTB-TSC responded with a plea to the jurisdiction with no evidence attached. The trial court granted UTB-TSC’s plea, and Price appealed.

Held: Price’s underlying suit was untimely, depriving the trial court of jurisdiction and undermining her attempt to prove a meritorious claim in her bill of review. The trial court’s judgment was affirmed.

The Thirteenth Court of Appeals began by reiterating the rules applicable to bills of review. To obtain a bill of review setting aside a judgment that is no longer appealable, a plaintiff must provide prima facie evidence of (1) a meritorious claim or defense; (2) the petitioner was prevented from making the meritorious claim by official mistake or by the opposing party’s accident or wrongful act; and (3) the inability to make the meritorious claim or defense was not due to the petitioner’s own fault or negligence.

The Thirteenth Court first noted that Price did not allege a basis for the waiver of sovereign immunity in her bill of review proceeding. Nonetheless, the parties appeared to agree that the trial court had jurisdiction if Price provided prima facie evidence of the three elements necessary for a bill of review.

The Thirteenth Court held that Price did not show a meritorious claim because her suit was untimely. To maintain her suit under the Texas Labor Code, Price was required to exhaust her administrative remedies by filing a complaint with the Texas Workforce Commission, and obtaining a written notice of the complainant’s right to file suit. After receiving the written notice, suit must be filed within sixty days. However, Price’s petition reflected that she received notice of her right to file a civil action on June 22, 2011 and did not file her petition until 62 days later, on August 23, 2011. Thus, the trial court lacked jurisdiction over the underlying suit and Price did not show that she had a meritorious claim. The trial court’s judgment was affirmed.

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