NUMBER 13-20-00569-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
SAN BENITO CONSOLIDATED ISD, Appellant,
v.
MARY ALICE LEAL, Appellee.
On appeal from the 107th District Court
of Cameron County, Texas.
MEMORANDUM OPINION
Before Chief Justice Contreras and Justices Benavides and Longoria
Memorandum Opinion by Justice Benavides
Appellant San Benito Consolidated Independent School District (School District)
appeals from the denial of its plea to the jurisdiction on appellee Mary Alice Leal’s claims
of employment discrimination, breach of contract, and state constitutional violations. By
its first two issues, the School District contends that it conclusively established that Leal
failed to exhaust her administrative remedies under the Texas Commission on Human
Rights Act (TCHRA) because both her charge of discrimination and suit were untimely.
By its third and fourth issues, the School District argues that Leal failed to exhaust her
administrative remedies on her breach of contract claim under § 7.057 of the Texas
Education Code and that Leal has not alleged a viable constitutional claim. We affirm in
part, reverse in part, and remand the case for further proceedings.
I. BACKGROUND
The School District employed Leal as an administrator for the 2016–2017 school
year.1 On August 19, 2016, Leal was transferred from her position as a middle school
assistant principal to an “Instructional Facility position” at an elementary school. On May
9, 2017, Leal filed a formal charge of discrimination with both the Texas Workforce
Commission (TWC) and United States Equal Employment Opportunity Commission
(EEOC).
The discrimination charge form required Leal to check boxes next to all bases of
discrimination against her. Leal checked the boxes next to sex and retaliation. The form
also prompted Leal to fill in the earliest and latest dates of discrimination. Leal filled in
“8/19/16” for the earliest, “09/19/16 - Continuing” for the latest, and checked the box that
indicated the discrimination was a “continuing action.” In a field requesting a narrative,
Leal provided:
I have been subjected to a demotion, discipline, harassment[,] and
inequitable terms [and] conditions [of employment] due to retaliation. On or
about 08/18/16, I was assigned to work in the front office with secretarial
staff, [even though] I am an administrator. I was also assigned a small
1 It is unclear from the record whether Leal is currently employed by the School District.
2
cubicle, given a ten[-]year[-]old computer, a chair with metal sticking out of
the seat[,] and I was not given access to students’ information in order to
complete my job duties. On or about 08/19/16, I was demoted and
transferred from my position as an Assistant Principal of BCMS to an
Instruction Facility position at Judge De La Fuente Elementary School for
the 2016-2017 school year[]. On or about 09/19/16, I was given a negative
evaluation, which resulted in the inability to be promoted. I believe the
discriminatory treatment I have experienced is a result of me previously
filing an EEO complaint.”
On October 25, 2017, Leal filed an amended charge. The narrative section
contains identical allegations. The only change Leal made was to the dates of
discrimination; she now alleged that the most recent discrimination and retaliation
occurred in “July 2017.”
On November 28, 2017, the TWC issued Leal a right-to-sue letter and explained
that it was dismissing her charge. The EEOC adopted the TWC’s findings, and Leal did
not ask the EEOC for a separate review of her claims.
Leal filed suit on January 30, 2018, alleging discrimination and retaliation under
the labor code and free-speech and due-course-of-law violations under the Texas
Constitution. The School District filed a plea to the jurisdiction, and the parties agreed to
abate the case for six months to conduct jurisdictional discovery.
Upon reinstatement, Leal supplemented her petition, adding a claim for breach of
her employment contract. In her live petition, Leal claims that the School District began
discriminating and retaliating against her after she “acted to investigate, support[,] and
sustain complaints of sexual discrimination and harassment by employees under her
supervision” in 2015. She also claims that she suffered “ongoing harassment,
discrimination[,] and retaliation . . . within 180 days of filing her charge of discrimination
3
with the [TWC]” and was subjected to “demotion, discipline, harassment[,] and inequitable
terms and conditions of employment” during the 180-day period.
The School District filed an amended plea to the jurisdiction. The School District
attached to its plea a verified copy of Leal’s EEOC file, including an investigative
memorandum by the TWC. After a hearing, the trial court denied the plea, and this
interlocutory appeal followed. 2 See TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(8)
(providing for interlocutory appeal from a trial court’s denial of a plea to the jurisdiction by
a governmental unit).
II. STANDARD OF REVIEW & APPLICABLE LAW
Subject matter jurisdiction is essential to a court’s authority to decide a case. Bland
Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000) (citing Tex. Ass’n of Bus. v.
Tex. Air Control Bd., 852 S.W.2d 440, 443 (Tex. 1993)). Whether a trial court has subject
matter jurisdiction is a question of law we review de novo. State Dep’t of Highways & Pub.
Transp. v. Gonzalez, 82 S.W.3d 322, 327 (Tex. 2002).
Governmental immunity from suit protects political subdivisions of the State like
the School District from lawsuits for money damages and deprives a trial court of subject
matter jurisdiction over the plaintiff’s claims. See Mission Consol. Indep. Sch. Dist. v.
Garcia, 253 S.W.3d 653, 655 & n.2 (Tex. 2008). The plaintiff has the initial burden to
plead facts affirmatively showing that the trial court has jurisdiction. Fleming v. Patterson,
310 S.W.3d 65, 68 (Tex. App.—Corpus Christi–Edinburg 2010, pet. struck) (citing Tex.
2 We carried with this appeal two motions filed by Leal that were opposed by the School District:
“Appellees First Motion for 30 day Extension or Continuance to File Appellees Brief (Opposed)” and “First
Motion for Leave to File Appellees Brief Out of Time.” We grant the second motion and dismiss the first
motion as moot.
4
Air Control Bd., 852 S.W.2d at 446). To prevail on a claim of immunity, the governmental
defendant “may challenge the pleadings, the existence of jurisdictional facts, or both.”
Alamo Heights Indep. Sch. Dist. v. Clark, 544 S.W.3d 755, 770 (Tex. 2018). When a
defendant challenges the existence of jurisdictional facts, the analysis “mirrors that of a
traditional summary judgment.” Tex. Dep’t of Transp. v. Lara, 625 S.W.3d 46, 52 (Tex.
2021) (quoting Mission Consol. Indep. Sch. Dist. v. Garcia, 372 S.W.3d 629, 634 (Tex.
2012)). As such, we take as true all evidence favorable to the nonmovant, indulging every
reasonable inference and resolving any doubts in their favor. Id. (citing Alamo Heights,
544 S.W.3d at 771).
The TCHRA prohibits employers from discriminating against protected employees
or retaliating against employees who engage in protected activities. See TEX. LAB. CODE
ANN. §§ 21.051(1), 21.055. An employee engages in a protected activity by, among other
things, opposing a discriminatory practice, making a charge of discrimination with the
EEOC or TWC, or participating in an investigation by the EEOC or TWC. Id. § 21.055.
The TCHRA waives a governmental employer’s immunity from suit for violations under
the act. Alamo Heights, 544 S.W.3d at 770. Because the TCHRA was modeled after
federal statutes, Texas courts look to relevant federal precedent for guidance. Lara, 625
S.W.3d at 52 (citing Garcia, 372 S.W.3d at 634).
III. 180-DAY FILING REQUIREMENT
By its first issue, the School District argues that Leal failed to exhaust her
administrative remedies under the TCHRA because she filed her charge of discrimination
more than 180 days after she was demoted.
5
A. Applicable Law
A person must exhaust the TCHRA’s administrative remedies prior to filing suit,
and failure to do so is a jurisdictional defect that deprives the trial court of subject matter
jurisdiction. City of Waco v. Lopez, 259 S.W.3d 147, 156 (Tex. 2008). To exhaust
administrative remedies, a person must, among other requirements, file a charge of
discrimination with the TWC “not later than the 180th day after the date the alleged
unlawful employment practice occurred.” TEX. LAB. CODE ANN. § 21.202(a); Lopez, 259
S.W.3d at 156.
“Unlawful employment practices” include discrete acts, such as termination, failure
to promote, denial of transfer, or refusal to hire, which are easy to identify. Nat’l R.R.
Passenger Corp. v. Morgan, 536 U.S. 101, 114 (2002). “Each discrete discriminatory act
starts a new clock for filing charges alleging that act.” Id. at 113. A demotion is a discrete
act that places an employee on notice that a cause of action has accrued. Pegram v.
Honeywell, Inc., 361 F.3d 272, 280 (5th Cir. 2004) (citing Morgan, 536 U.S. at 114); see
Davis v. Autonation USA Corp., 226 S.W.3d 487, 492 (Tex. App.—Houston [1st Dist.]
2006, no pet.) (holding demotion triggered 180-day deadline); see also Abbott v. Rankin,
No. 06-07-00149-CV, 2008 WL 5156453, at *4 (Tex. App.—Texarkana Dec. 10, 2008,
pet. denied) (mem. op.) (same).
There is an exception to the 180-day deadline, known as the continuing violation
doctrine, which generally arises in the context of hostile work environment claims.
Morgan, 536 U.S. at 114. Rather than discrete acts, a hostile work environment claim
alleges related and sustained harassment so that the unlawful employment practice
6
“cannot be said to occur on any particular day.” Id. at 115. (explaining that hostile work
environment claims are “different in kind” and “in direct contrast to discrete acts”). Instead,
“[a] hostile work environment claim is composed of a series of separate acts that
collectively constitute one ‘unlawful employment practice.’” Id. at 117. For such claims, a
court may consider contributing acts that occurred outside the 180-day deadline if at least
one contributing act occurred within the filing period. Id. Inversely, “discrete discriminatory
acts are not actionable if time barred, even when they are related to acts alleged in timely
filed charges.” Id. at 113. Simply put, “[c]laims alleging discrete acts are not subject to the
continuing violation doctrine.” Heath v. Bd. of Supervisors for S. Univ. & Agric. & Mech.
Coll., 850 F.3d 731, 737 (5th Cir. 2017); see Morgan, 536 U.S. at 113.
Relatedly, “[a] lawsuit under the [TCHRA] will be limited in scope to only those
claims that were included in a timely administrative charge and to factually related claims
that could reasonably be expected to grow out of the agency’s investigation of the claims
stated in the charge.” El Paso County v. Vasquez, 508 S.W.3d 626, 635 (Tex. App.—El
Paso 2016, pet. denied) (citing City of Sugar Land v. Kaplan, 449 S.W.3d 577, 581–82
(Tex. App.—Houston [14th Dist.] 2014, no pet.); Brownsville Indep. Sch. Dist. v. Alex, 408
S.W.3d 670, 674 (Tex. App.—Corpus Christi–Edinburg 2013, no pet.) (citing Bartosh v.
Sam Houston State Univ., 259 S.W.3d 317, 322 (Tex. App.—Texarkana 2008, pet.
denied)). “The crucial element of a charge of discrimination is the factual statement
contained” in the administrative complaint. Preston v. Tex. Dep’t of Family & Prot. Servs.,
222 F. App’x 353, 356 (5th Cir. 2007). “We construe the complaint liberally to reach its
substance, but we will not construe it to include facts that were initially omitted.” Alex, 408
7
S.W.3d at 674 (citing Bartosh, 259 S.W.3d at 322).
B. Analysis
Here, Leal alleged in her charge of discrimination that the School District
discriminated and retaliated against her when it moved her workspace to the front office
with secretarial staff on August 18, 2016, demoted her on August 19, 2016, and gave her
a negative evaluation on September 19, 2016. Even if we assume that the later negative
evaluation was “materially adverse,” see Burlington N. & Santa Fe Ry. Co. v. White, 548
U.S. 53, 68 (2006), each challenged act occurred more than 180 days before Leal filed
her first charge of discrimination with the TWC on May 9, 2017.3 Accordingly, the trial
court lacks subject matter jurisdiction over Leal’s TCHRA claims based on her workspace,
demotion, and negative evaluation. See Pegram, 361 F.3d at 280; Davis, 226 S.W.3d at
492; see also Rankin, 2008 WL 5156453, at *4.
Leal nevertheless maintains that the continuing violation doctrine should apply
because she indicated on the charge form that the discrimination and retaliation were
“continuing.” A demotion, however, is a discrete act; therefore, it cannot be saved by the
continuing violation doctrine. See Heath, 850 F.3d at 737. Regardless, at least one
contributing act must have occurred within 180 days for the continuing violation doctrine
to apply. See Morgan, 536 U.S. at 117. The only factual allegation in Leal’s charge about
discriminatory treatment occurring after her time-barred negative evaluation is a reference
to a subsequent “inability to be promoted.” In her petition, Leal elaborates that, in July
3 Before the trial court, Leal argued that she filed her charge of discrimination on February 14,
2017, 179 days after her demotion. On appeal, Leal has abandoned that argument and now concedes that
she filed the charge on May 9, 2017.
8
2017, she was allegedly passed over for several promotions. This allegation is consistent
with Leal’s amended charge, which was changed to indicate that the latest discrimination
occurred in “July 2017.” But like Leal’s demotion, a failure to promote is a discrete
discriminatory act with its own clock for filing a timely charge of discrimination. See
Morgan, 536 U.S. at 113–14. It cannot be used “to pull in [a] time-barred discriminatory
act.” Id. at 113. Thus, Leal’s gender discrimination and retaliation claims based on her
workspace, demotion, and negative evaluation cannot be saved by the continuing
violation doctrine.
On the other hand, Leal amended her charge of discrimination to include gender
discrimination and retaliation claims based on the July 2017 failure to promote. One of
our sister courts has noted that some federal courts have interpreted Morgan as requiring
an employee to file a subsequent or amended charge of discrimination for discrete acts
that occur after the initial charge is filed. See Wernert v. City of Dublin, 557 S.W.3d 868,
874–76 (Tex. App.—Eastland 2018, no pet.) (surveying federal case law). We need not
decide that issue here because even if this interpretation is correct, Leal amended her
charge approximately three months after the alleged failure to promote.
We acknowledge that the amended charge did not expressly describe the latest
discrimination and retaliation that occurred in “July 2017”; however, reading the charge
liberally and given Leal’s original allegation about an “inability to be promoted,” we would
expect the TWC to investigate any potential claim for failure to promote during the relevant
period (i.e., through July 2017). See Vasquez, 508 S.W.3d at 635; Alex, 408 S.W.3d at
674. Indeed, although not dispositive, it appears from the record that the TWC
9
investigated this specific claim before issuing Leal a right-to-sue letter.4 Therefore, we
conclude that Leal did satisfy the 180-day filing requirement with respect to her gender
discrimination and retaliation claims based on the July 2017 failure to promote. The
School District’s first issue is sustained in part and overruled in part.
IV. 60-DAY FILING REQUIREMENT
By its second issue, the School District argues that even if Leal timely filed any of
her claims with the TWC, she nonetheless failed to exhaust her administrative remedies
because she filed suit more than sixty days after receiving her right-to-sue letter. We
disagree.
The TCHRA requires a person to file suit “[w]ithin 60 days after the date a notice
of the right to file a civil action is received.” TEX. LAB. CODE ANN. § 21.254. A person who
fails to satisfy this deadline has not exhausted their administrative remedies under the
TCHRA. Metro. Transit Auth. of Harris Cnty. v. Douglas, 544 S.W.3d 486, 492 n.6 (Tex.
App.—Houston [14th Dist.] 2018, pet. denied); see also Donna Indep. Sch. Dist. v.
Castillo, No. 13-29-00395-CV, 2020 WL 4812638, at *4 n.4 (Tex. App.—Corpus Christi–
Edinburg Aug. 13, 2020, pet. denied) (mem. op.).
Leal filed suit on January 30, 2018. Under the plain language of the statute, the
sixty-day period began to run when Leal “received” the right-to-sue letter. See TEX. LAB.
CODE ANN. § 21.254. Leal alleges in her petition that she “received” the right-to-sue letter
on December 2, 2017, within sixty days of filing suit.
4 For example, in an October 30, 2017 email between a TWC investigator and Leal’s attorney, the
investigator requested an additional interview with Leal to discuss “additional evidence submitted by [Leal]
. . . pertinent to the positions she applied for and was not selected” in July 2017.
10
The School District points out that the right-to-sue letter was signed by a TWC
representative on “11/28/17,” more than sixty days before Leal filed suit. According to the
School District, because the letter was signed on November 28, 2017, Leal must have
received the notice that same day. The record does not support the School District’s
supposition. On the contrary, the face of the letter indicates that it was delivered to Leal’s
attorney by regular mail, which is consistent with Leal’s allegation that she “received” it
on December 2, 2017. Viewing the evidence in the light most favorable to Leal, we
conclude the School District failed to conclusively establish that Leal’s suit was untimely.
We overrule the School District’s second issue.
V. EXHAUSTION OF ADMINISTRATIVE REMEDIES (TEXAS EDUCATION CODE)
By its third issue, the School District contends that Leal’s breach of contract claim
fails because Leal did not exhaust her administrative remedies with the Commissioner of
Education.
A. Applicable Law
The Texas Commissioner of Education has exclusive jurisdiction over actions or
decisions of any school district board of trustees that violate a provision of a written
employment contract between the school district and a school district employee if a
violation causes or would cause monetary harm to the employee. TEX. EDUC. CODE ANN.
§ 7.057(a)(2)(B). Thus, before filing suit, “[s]chool district employees . . . alleging a breach
of an employment contract where facts are in dispute . . . generally must exhaust
administrative remedies by bringing an appeal to the Commissioner.” Canutillo Indep.
Sch. Dist. v. Farran, 409 S.W.3d 653, 657 (Tex. 2013). Of course, an appeal generally
11
requires an underlying decision, which, in this context, means initiating a grievance
process that starts at the school level and ends at the district level. See, e.g., Ollie v.
Plano Indep. Sch. Dist., 383 S.W.3d 783, 792 (Tex. App.—Dallas 2012, pet denied) (“The
PISD’s grievance process consists of four levels. . . . After exhausting the PISD’s
grievance process, the employee must appeal the decision of the board of trustees to the
Commissioner of Education.”).
Here, Leal alleges in her petition that the School District employed her as an
administrator in 2017, the parties were subject to an employment contract, the contract
“provided guaranteed terms and conditions of employment,” the School District “materially
breached that contract of employment,” and Leal “suffered economic damages” as a
result. 5 Although Leal acknowledges the existence of the School District’s grievance
process in her petition, she does not allege that she exhausted her administrative
remedies with respect to her contract claim.
On appeal, Leal does not address the applicability of § 7.057 to her claim. Instead,
she argues that the Legislature waived the School District’s immunity from her contract
claim under § 271.152 of the Texas Local Government Code. See TEX. LOC. GOV’T CODE
ANN. § 271.152; City of Houston v. Williams, 353 S.W.3d 128, 131 (Tex. 2011) (“Section
271.152 of the Local Government Code, under certain circumstances, waives
governmental immunity for suits alleging breach of a written contract.”); id. at 134–35
(discussing the elements that must be established to fall within the scope of § 271.152’s
5 Leal does not specify which provisions in the contract the School District allegedly violated or
how the violations occurred.
12
waiver of immunity). Even if Leal’s employment contract meets all the requirements of
§ 271.152, that would not absolve Leal from first exhausting her administrative remedies
under the Texas Education Code before filing suit. See Clint Indep. Sch. Dist. v. Marquez,
487 S.W.3d 538, 546 (Tex. 2016) (explaining that a person whose complaint falls under
§ 7.057(a) “must exhaust their administrative remedies before courts can exercise
jurisdiction”); see also TEX. GOV’T CODE ANN. § 311.034 (“Statutory prerequisites to a suit,
including the provision of notice, are jurisdictional requirements in all suits against a
governmental entity.”). Because Leal has failed to allege facts that affirmatively establish
the trial court’s jurisdiction over her breach of contract claim, we sustain the School
District’s third issue.
VI. VIABILITY OF CONSTITUTIONAL CLAIMS
By its final issue, the School District argues that Leal’s claims under the Texas
Constitution are not viable, and therefore, the trial court lacks jurisdiction over those
claims.
There is no “implied private right of action for damages against governmental
entities for violations of the Texas Constitution,” but suits for “equitable remedies for
violation of constitutional rights are not prohibited.” City of Beaumont v. Bouillion, 896
S.W.2d 143, 144, 149 (Tex. 1995). Thus, “suits for injunctive relief” may be maintained
against governmental entities to remedy violations of the Texas Constitution. Id. at 149.
Regardless, to overcome immunity, a plaintiff must plead a “viable” constitutional claim.
Andrade v. NAACP of Austin, 345 S.W.3d 1, 11 (Tex. 2011). A constitutional claim is not
viable if the facts alleged would not give rise to such a claim. See, e.g., Klumb v. Hous.
13
Mun. Emps. Pension Sys., 458 S.W.3d 1, 15 (Tex. 2015) (“[T]he Petitioners’ due-course
claims are facially invalid because the Petitioners have no vested property right to the
pension-plan contributions and future retirement benefits at issue.”). We address the
viability of each of Leal’s constitutional claims in turn.
A. Free Speech Retaliation
The Texas Constitution provides that “[e]very person shall be at liberty to speak,
write or publish his opinions on any subject, being responsible for the abuse of that
privilege; and no law shall ever be passed curtailing the liberty of speech or of the press.”
TEX. CONST. ART. I, § 8. Leal does not contend that the text, history, or purpose of § 8
provides her any greater protection in this context than that provided by the First
Amendment; therefore, we may look to federal case law for guidance. See Tex. Dep’t of
Transp. v. Barber, 111 S.W.3d 86, 106 (Tex. 2003); see also Davenport v. Garcia, 834
S.W.2d 4, 40 (Tex. 1992) (Hecht, J., concurring) (“When state and federal provisions
overlap or correspond, state law, as well as federal law and the law of other states, may
be helpful in analyzing their proper application.”).
A facially valid claim that a public employee’s right to free speech was violated
requires the employee to plead and allege facts which, if true, show that: (1) they suffered
an adverse employment decision; (2) their speech involved a matter of public concern,
(3) their interest in speaking on such matters outweighed their employer’s interest in
promoting efficiency, and (4) their speech motivated the adverse employment decision.
Caleb v. Carranza, 518 S.W.3d 537, 544 (Tex. App.—Houston [1st Dist.] 2017, no pet.)
(citing Beattie v. Madison Cnty. Sch. Dist., 254 F.3d 595, 601 (5th Cir. 2001)). “[W]hen
14
public employees make statements pursuant to their official duties, the employees are
not speaking as citizens for First Amendment purposes, and the Constitution does not
insulate their communications from employer discipline.” Garcetti v. Ceballos, 547 U.S.
410, 421 (2006).
In her petition, Leal alleges that, in her former capacity as a principal, she “was in
charge of investigating complaints of sexual harassment and discrimination arising from
[School District] employees who were under her supervision and control.” Leal further
alleges that she “acted to investigate, support, and sustain complaints of sexual
discrimination and harassment by employees under her supervision.” Finally, Leal alleges
that the School District “retaliated against her for supporting a complaint of sexual
harassment in violation of her right to free speech.”
As Leal alleges in her petition, her official duties included “investigating complaints
of sexual harassment and discrimination.” See Garcetti, 547 U.S. at 421. Thus, when Leal
alleges that she investigated, supported, and sustained complaints of sexual harassment
and discrimination, these were “activities undertaken in the course of performing [Leal’s]
job.” See Williams v. Dall. Indep. Sch. Dist., 480 F.3d 689, 693 (5th Cir. 2007); Lane v.
Franks, 573 U.S. 228, 240 (2014) (“The critical question under Garcetti is whether the
speech at issue is itself ordinarily within the scope of an employee’s duties, not whether
it merely concerns those duties.”). In other words, her activities had “official significance.”
See Garcetti, 547 U.S. at 421. Importantly, Leal has never alleged that she expressed
her concerns publicly—i.e., as a citizen. See id. at 423 (“Employees who make public
statements outside the course of performing their official duties retain some possibility of
15
First Amendment protection because that is the kind of activity engaged in by citizens
who do not work for the government.”). Based on the limited facts alleged in Leal’s
petition, we conclude that Leal has not stated a facially valid claim of free speech
retaliation.6 See Klumb, 458 S.W.3d at15.
B. Due Course of Law
The Texas Constitution provides that “[n]o citizen of this State shall be deprived of
life, liberty, property, or privileges or immunities . . . except by the due course of the law
of the land.” TEX. CONST. art. I, § 19. “Before any substantive or procedural due-process
rights attach, however, the [plaintiff] must have a liberty or property interest that is entitled
to constitutional protection.” Klumb., 458 S.W.3d at 15. Mere expectancy in a property
interest will not suffice; the property interest must be vested. Id. (citing City of Dallas v.
Trammell, 101 S.W.2d 1009, 1014 (Tex. 1937)).
Leal alleges that the district violated her right to due course of law by “willfully
failing to provide her with a meaningful grievance process.” According to Leal, she filed a
grievance after her negative evaluation, and although the School District informed her
that her grievance had been “sustained” (i.e., the negative evaluation was removed from
her personnel file), the School District nonetheless “denied [Leal] her remedy” because it
“continued to discriminate and retaliate against [her].” Specifically, Leal points to the four
principal positions she applied for in July 2017, saying the School District selected other
6We note that Leal was not without a remedy, though; these activities were protected under the
TCHRA. See TEX. LAB. CODE ANN. § 21.055.
16
candidates who “were not as qualified as [her].” Thus, the gravamen of Leal’s due-course
claim is that she applied for, but did not receive, a promotion.
Leal did not have a vested property right in being promoted to principal. See City
of Round Rock v. Whiteaker, 241 S.W.3d 609, 625 (Tex. App.—Austin 2007, pet. denied)
(recognizing that even “a person’s position as the top candidate on a promotional eligibility
list . . . does not create an equitable property interest in promotion”); Pruitt v. City of
Houston, 548 S.W.2d 90, 94 (Tex. App.—Houston [1st Dist.] 1977, no writ) (holding
employee did not have a vested property interest in promotion; therefore, due process
rights did not attach); cf. Alford v. City of Dallas, 738 S.W.2d 312, 316 (Tex. App.—Dallas
1987, no writ) (“At most, Alford had an expectancy of a transfer. That expectancy does
not rise to the level of a vested property interest that is protected under the due process
clause.”). Moreover, “procedural rights that protect due process, such as hearings and
grievance proceedings, . . . cannot be used to ‘bootstrap’ an employee into having an
entitlement.” Cote v. Rivera, 894 S.W.2d 536, 541 (Tex. App.—Austin 1995, no writ)
(quoting Evans v. City of Dallas, 861 F.2d 846, 849 (5th Cir. 1988)). Consequently, we
conclude that Leal’s due-course claim is facially invalid. See Klumb, 458 S.W.3d at 15.
We sustain the School District’s fourth issue.
VII. OPPORTUNITY TO REPLEAD
Finally, to the extent that we find her pleadings deficient, Leal requests an
opportunity to amend. She contends that because the School District never specially
excepted to her petition, she was not “given the opportunity to amend her pleadings to
17
state how jurisdiction might exist.” Leal does not point to any additional facts that she
would allege if given the opportunity.
The School District counters that Leal’s claims should be dismissed with prejudice
because: (1) it was Leal’s initial burden to plead facts that affirmatively demonstrated the
trial court’s jurisdiction; (2) regardless, the School District’s plea to the jurisdiction put Leal
on notice that her pleading was deficient; (3) the parties subsequently abated the case
for six months to conduct jurisdictional discovery; and (4) once the case was reinstated,
Leal supplemented her petition to no avail.
The record conclusively establishes that Leal failed to exhaust her administrative
remedies with respect to certain claims under the TCHRA; therefore, those claims are
dismissed with prejudice to refiling. See Rusk State Hosp. v. Black, 392 S.W.3d 88, 100
(Tex. 2012). Likewise, Leal’s due-course claim is incurably defective and is dismissed
with prejudice. See Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 227 (Tex.
2004).
Although Leal’s pleadings may not have conclusively negated her breach of
contract and free-speech claims, we conclude, based on the procedural history of the
case, that Leal “had a full and fair opportunity in the trial court to develop the record and
amend [her] pleadings to show jurisdiction yet failed to do so.” See Black, 392 S.W.3d at
100. More than fourteen months passed between the time the School District filed its plea
to the jurisdiction and the trial court ruled on it. In the interim, the parties agreed to abate
the case for six months to conduct jurisdictional discovery. Contrary to her representation
on appeal that she was not “given the opportunity to amend her pleadings,” Leal filed a
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supplemental pleading three months after the case was reinstated. In this pleading, Leal
alleged a new claim for breach of contract but otherwise echoed her previous allegations
as to her other claims. The School District then filed an amended plea to the jurisdiction
addressing Leal’s new claim, and Leal elected to stand on her supplemented pleadings
before the trial court ruled on the amended plea. In doing so, Leal gave the impression
that she had pleaded her best case, and she has made no representations on appeal to
dissuade us of that impression. Accordingly, Leal’s breach of contract and free-speech
claims are also dismissed with prejudice. See id.
VIII. CONCLUSION
The trial court’s judgment is affirmed with respect to Leal’s gender discrimination
and retaliation claims under the TCHRA that involve her failure to be promoted in July
2017. The remainder of the trial court’s judgment is reversed, and Leal’s other claims are
dismissed with prejudice for want of jurisdiction. The case is remanded for further
proceedings.
GINA M. BENAVIDES
Justice
Delivered and filed on the
27th day of January, 2022.
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