dissenting.
I respectfully dissent. Brite “pleaded himself out of court”1 when he filed a petition stating that the maximum amount of damages he claimed was $1.6 million. Accordingly, I would reverse the trial court’s judgment and dismiss the cause. Brite would then have sixty days in which to refile his suit in the district court.
Scope and StandaRd of Review
Whether a court has subject matter jurisdiction and whether a pleading alleges facts that affirmatively demonstrate a trial court’s subject matter jurisdiction are questions of law that we review de novo. Texas Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226, 228 (Tex. 2004). In making this determination, “[t]he plaintiffs allegations in the petition of the amount in controversy control for jurisdictional purposes unless the party challenging jurisdiction pleads and proves that the plaintiffs allegations of the amount in controversy were made fraudulently for the purpose of obtaining jurisdiction.” Id. at 224 n. 4.
Procedural Background
On May 2, 2002 Brite filed his Original Petition in the county court at law, which has limited jurisdiction in civil cases when the amount “in controversy exceeds $500, but does not exceed $100,000, excluding interest, statutory or punitive damages and penalties, and attorney’s fees and costs.”2 Brite’s Original Petition states “the amount in controversy exceeds the minimum jurisdictional limits of this Court” but fails to include the statement that has been required by Texas Rule of Civil Procedure 47(b) since September 1, 1990: “the damages sought are within the jurisdictional limits of the court.” Tex.R. Civ. P. 47(b) (emphasis added).3 But Brite’s Original Petition does state that he seeks exemplary damages, statutorily capped at $300,0004 and the types of actual damages he claims: “lost income and benefits” in the past and, “[i]n all reasonable probability,” “into the future, if not for the balance of [his] natural life .... ”
In response to Brite’s original petition, USAA filed an answer and, on June 20, 2002, removed the case to federal court. Ultimately, Brite amended his petition to delete the claims giving rise to federal jurisdiction; and the federal district court, on March 31, 2003, remanded the case to state court. Soon thereafter, on July 7, 2003, USAA filed its first Plea to the Jurisdiction, which explained how “the amount in controversy” “exceed[ed] $100,000, excluding interest, statutory or punitive damages and penalties, and attorney’s fees and costs”:
At the time of his separation of employment from USAA (on or about September 30, 2001), [Brite’s] annualized salary was $73,999.90.[Brite] also received a 2001 performance bonus in the amount of $11,304.61.... In addition, as an employee of USAA, [Brite] was entitled to additional benefits including medical insurance, participation in a 401(k) plan, and participation in USAA’s retirement plan.
*581[Brite’s] back pay alone, as claimed in sections (a) and (b) of [Brite’s] Petition, ■will exceed $148,000 by the time of trial (currently scheduled for September 22, 2003). [Brite’s] alleged front pay damages (¿a, unaccrued wage payments, vacation pay, and all other compensation due to [Brite] for the period following the date of judgment through “the balance of [Brite’s] natural life”) amount to hundreds of thousands of dollars. Specifically, [Brite] was born on August 3, 1948, thus at [the] time of trial he will be 55 years of age.Accordingly, if [Brite’s] “natural life” extends to age 70, [Brite] is effectively seeking 15 years of front pay, amounting to over a million dollars.
USAA concluded its plea with the statement that “[Brite’s] vague and ambiguous claim of jurisdiction in his Petition is an obvious fraudulent and bad faith maneuver to attempt to confer jurisdiction upon this Court. Accordingly, [Brite’s] action should be dismissed entirely for want of jurisdiction.”
At the ensuing hearing on August 8, USAA’s attorney explained that Brite’s request for future lost wages and benefits “is actually not something that accrues because of the passage of time.And the amount in controversy is — means the full amount which could be recovered under the allegations and pleadings .... ” Moments later, the following exchange occurred between the trial judge and Brite’s attorney:
THE COURT: Mr. Goldberg, I know you to be a very careful lawyer.
MR. GOLDBERG: Absolutely, Your Honor.
THE COURT: Why is this one here rather than in district?
MR. GOLDBERG: We haven’t alleged an amount in controversy. There are no numbers associated with this. We had no idea whether Mr. Brite would get a job or not.
We filed pursuant to the pleading requirements, 47(b). We alleged the court’s proper jurisdiction in the case. They have not specially excepted to get a maximum amount claimed. That’s not my fault. That’s their fault. And the court properly obtained jurisdiction when we filed the case.
THE COURT: Out of an abundance of caution, would it in some way hurt your client’s case to remove this to district court at this time and to refile in district or are we outside the statute at this point?
MR. GOLDBERG: Yes, sir, absolutely. At the time we filed there were many uncertainties about what—
THE COURT: So you had to be within that 60-day window from the [Equal Employment Opportunity Commission] letter?
MR. GOLDBERG: Yes. Well, from the [Texas Commission on Human Rights], Your Honor, correct. And after we filed this case, the Defendants removed the ease to Federal Court and we spent almost a year up there in the Federal Court when the Federal Judge, Ed Prado, remanded the case and in his Order noted how the Defendants appeared to be trying to avoid State Court altogether.
I mean, they made a lot [of] to do about forum manipulation claiming that we were trying to manipulate the forum. The Federal Judge saw right through that and remanded this case.
But in terms of the allegations, the Texas Supreme Court said the lack of a specific dollar averment does not deprive this court of jurisdiction. There is no dollar averment in our *582petition pure and simple. So when we filed this case, it was properly filed. We did not—
THE COURT: I think the risk you run is that I may well retain jurisdiction but I may lose any jurisdiction to award damages over and above the $100,000 if, in fact, those damages existed at — if those damages could have been alleged to exist at the time of the filing. You know, you may find yourself capped. I can’t promise you that you won’t.
MR. GOLDBERG: Well, I have addressed the same situation before in a case that I tried where the plaintiff worked for a company for about five years. He was fired. He found another job. And the jury determined that his front pay would have been $320,000, and it was because at the time of trial he would have had a better paying position had he not been terminated. The trial court signed the order. It was a judgment filed with the court. And the fact that his front pay might ultimately exceed $100,000 does not deprive the court of jurisdiction.
In response, USAA’s attorney pointed out that, at the time Brite filed his original petition in May 2002, “[t]he last time he looked for a job was three months before in February of 2002. So they knew he didn’t have a job and wasn’t looking for a job.” Indeed, said USAA’s attorney, when Brite’s deposition was taken in November or December of 2002, “he still hadn’t looked for a job. He admitted that the last time he looked for a job was in February of 2002.” At the conclusion of the hearing, the judge denied the plea with the following statement:
Well, I am loath[ ] to deny somebody a forum, and to rule that I don’t have jurisdiction here would, in fact, deny [Brite] the forum. And it is a little difficult to put a dollar amount on what it is that [Brite] [has] pled for, but I think it could conceivably be shoehorned to fit in under the $100,000 limit which would give me jurisdiction. So I am going to respectfully overrule the Plea to the Jurisdiction at this time and proceed and you, of course, proceed at your own risk that you may have $100,000 cap if indeed you are successful.
A written order was signed August 14, 2003. A few days later, on August 18, 2003, USAA filed a single special exception:
Pursuant to Rule 47 of the Texas Rules of Civil Procedure, [USAA] specially excepts to Paragraph IX and to the Prayer for relief of [Brite’s] Original Petition (attached as Tab 1) because [Brite] fails to state the maximum amount of damages sought against [USAA] in this action. [USAA] also specially excepts to Paragraph VIII and to the Prayer for relief of [Brite’s] First Amended Complaint (attached at Tab 2) because [Brite] fails to state ■ the maximum amount of damages sought against [USAA] in this action. [USAA] has a right to know the amount of monetary damages that [Brite] seeks in this action. [Brite] should be required to re-plead and state the maximum amount of damages sought.
Our record does not contain an order on USAA’s special exception; but it does contain a fiat setting USAA’s special exception for hearing on August 22, 2003. On the day of the hearing, Brite filed his Second Amended Petition which, insofar as damages are concerned, is identical to Brite’s original petition except for the last sentence in the prayer, which states that “[t]he maximum amount claimed for all damages listed above is $1.6 million.” USAA’s September 10 answer to this peti*583tion thus avers that the “amount of damages [Brite] is seeking exceeds the jurisdictional maximum of the county court ($100,000) and, thus, the Court does not have subject matter jurisdiction over this case.”
On September 15, USAA filed its Second Plea to the Jurisdiction, “because [Brite’s] representations and other evidence establish that the Court did not have jurisdiction over this case at the time it was filed.” In support of this plea, USAA attached documentary proof establishing that, at the time Brite filed his Original Petition, the value of his lost past wages and benefits totaled approximately $136,841.52, while Brite’s own August 22 second supplemental answers to USAA’s request for disclosures establish that “his lost wages and benefits in the future, until age 65, total approximately $1,000,000.” USAA continued to maintain that Brite’s attempts to confer jurisdiction on the county court were in bad faith, as evidenced by his previous discovery responses in which he “consistently failed to provide information regarding the amount and method of calculating his damages, despite being specifically requested to do so by USAA.”
At the ensuing September 19 hearing, USAA’s attorney tried to allay the trial judge’s concern that Brite would be “denied a forum” by explaining that Brite would have sixty days from the date of dismissal to refile in the district court.5 Throughout the hearing, Brite’s attorney insisted that, because he did not state the maximum amount of damages claimed in his original petition, the trial court acquired jurisdiction when the petition was filed; and, once the court “acquired jurisdiction, it’s not going to lose jurisdiction by the passage of time.” In support of his position, he repeatedly cited Continental Coffee Prods. Co. v. Cazarez, 937 S.W.2d 444 (Tex.1996). The trial judge denied the plea later that day in a letter that states as follows:
I have once again reviewed the Original Petition, the transcript of the prior hearing and the cited case law in attempting to determine the Defendant’s 2nd Plea to the Jurisdiction. It appears that at the time of filing (May 22, 2002)[sic] the Plaintiffs [sic] claims did not exceed the Court’s jurisdiction. The defendant’s plea is therefore denied.
Applicable Law
“The failure of a plaintiff to state a jurisdictional amount in controversy in its petition, without more, ... will not deprive the trial court of jurisdiction.” Peek v. Equip. Serv. Co., 779 S.W.2d 802, 804 (Tex. 1989). However, this “liberal construction of the pleadings in favor of jurisdiction is appropriate” only so long as “the plaintiff’s original and amended petitions do not affirmatively demonstrate an absence of jurisdiction.” 6 Continental Coffee Prods. *584Co. v. Cazarez, 937 S.W.2d 444, 449 (Tex. 1996) (emphasis added); see also Peek, 779 S.W.2d at 804 (“Even if the jurisdictional amount is never established by pleading, ... a plaintiff may recover ¿/'jurisdiction is proved at trial.”) (emphasis added). If an amended pleading “affirmatively demón-stratele] an absence of jurisdiction” by alleging damages in excess of the court’s maximum jurisdictional limit, it must first be determined whether the “plaintiffs original petition [was] properly brought in [the] particular court” and second whether “the additional damages accrued because of the passage of time.” Continental Coffee Prods. Co., 937 S.W.2d at 449. If the answer to both questions -is “yes,” the trial court retains jurisdiction. Id. But if not, the trial court’s jurisdiction' is defeated; and “its judgment must be reversed and the case dismissed.” Allright, Inc. v. Guy, 590 S.W.2d 734, 735 (Tex.Civ.App.-Houston [14th Dist.] 1979, writ refd n.r.e.).
In Allright, Talmage M. Guy’s automobile was stolen from an Allright, Inc. parking lot; he thereafter filed suit under the Texas Deceptive Trade Practices Consumer Protection Act in the county court at law, which at the time had a maximum jurisdictional limit of $5000, exclusive of interest. See id. (citing Tex.Rev.Civ. Stat. Ann. art.l970a (Vernon Supp.1978-79)).7 Although Guy alleged that his actual damages were $1807.51, the then-applicable version of the DTPA made an award of treble damages to a prevailing consumer mandatory. Id. Consequently, Guy actually sought $5422.53. Id. Allright filed a plea to the jurisdiction; but the trial court overruled Allright’s plea and rendered judgment in Guy’s favor for an amount in excess of $5000, exclusive of interest. Id. On appeal, Allright argued “that the county court at law had no jurisdiction to hear the case because [Guy’s]’s original petition asserted an amount of actual damages, $1,807.51, which when tripled exceeds the $5,000.00 maximum statutory jurisdiction of the court.” Id. The Fourteenth Court of Appeals agreed and therefore reversed the trial court’s judgment and dismissed *585the cause. Id.8 So it is here.
Discussion
As set forth above, Brite’s Original Petition states “the amount in controversy exceeds the minimum jurisdictional limits of this Court” but fails to include the statement that has been required by Rule 47(b) since September 1, 1990: “the damages sought are within the jurisdictional limits of the court.” Tex.R. Civ. P. 47(b) (emphasis added). Nevertheless, Brite’s Original Petition does “not affirmatively demonstrate an absence of jurisdiction” and, as a result, must be given “a liberal construction ... in favor of jurisdiction.” Continental Coffee Prods. Co., 937 S.W.2d at 449. But the same cannot be said for Brite’s Second Amended Petition, which “affirmatively demonstrate^] an absence of jurisdiction” by stating that Brite was seeking a maximum of $1.6 million for his actual and exemplary damages, attorney’s fees, and costs. Accordingly, we must determine whether Brite’s “original petition [was] properly brought in [the] particular court” and whether “additional damages accrued because of the passage of time.” Id. Brite has not and cannot show either.
Brite’s exemplary damages are statutorily capped at $300,000.9 Therefore, it was clear at the time he filed his Second Amended Petition that he sought actual damages, attorney’s fees, and costs of at least $1.3 million ($l,600,000-$300,000 = $1,300,000). And, although it is impossible to determine the precise amount of attorney’s fees, interest, and costs that Brite sought, it is possible to state unequivocally that this sum was less that $1.2 million ($1,300,000 [actual damages]-$100,000 [trial court’s maximum jurisdictional limit] = $1,200,000). Accordingly, the face of Brite’s Second' Amended Petition conclusively establishes that, at least by the time this petition was filed, he sought to recover actual damages far in excess of the trial court’s $100,000 maximum jurisdictional limit. And a comparison of this petition with Brite’s Original Petition makes clear that the amount of actual damages claimed in Brite’s Second Amended Petition was approximately the same amount as that sought in his Original Petition.
As noted above, Brite’s Second Amended Petition seeks exactly the same types of actual damages claimed in his Original Petition — lost past wages and benefits and lost future wages and benefits. While it is true that his claim for past lost wages and benefits increased due solely to the passage of time, his claim for future lost wages and benefits actually decreased due to the passage of time. This is necessarily true because, with each month that passed, Brite was one month closer to retirement and therefore entitled to one month less of lost future wages and benefits. From this, two conclusions are inescapable: Brite’s claimed damages did not increase due solely to the passage of time and, as a result, the trial court never “lawfully and properly” acquired jurisdiction over the case. Arguing to the contrary, Brite relies upon Weidner v. Sanchez, 14 S.W.3d 353 (Tex. App.-Houston [14th Dist.] 2000, no pet.). But this attempted analogy fails.
In Weidner, the plaintiff initially pleaded that her damages were $95,000 and thus within the county court at law’s jurisdiction. Id. at 359. She amended her petition and increased her claimed damages to $210,000 but only after her board-certified orthopedic surgeon testified on deposition that time had proven her injuries were not *586temporary, as he had believed, but permanent. Id. at 359-60. The Fourteenth Court of Appeals rejected the defendant’s jurisdictional challenge, stating that “the record does not affirmatively establish that [the plaintiff] and her trial attorney knew or should have known her injuries were permanent at the time she filed her original petition.” Id. at 361. The Weidner plaintiff thus filed an original petition claiming a specific amount of damages within the county court at law’s jurisdictional limits — “thereby lawfully and properly” invoking the county court at law’s jurisdiction — and later amended her petition to increase the amount of claimed damages beyond the county court at law’s jurisdictional limit because the passage of time had proved the injuries she thought were temporary were in fact permanent. Here, on the other hand, Brite failed to file an original petition claiming a specific amount of damages within the county court at law’s jurisdictional limits; and his Second Amended Petition seeks not newly-discovered or additional damages but exactly the same types of actual damages claimed in his Original Petition.
Brite next argues that, “at the time of filing, the calculation of the dollar amount for [his lost future wages and benefits] would have been speculative at best, even if it could be assumed that [lost future wages and benefits] would become necessary” and, similarly, he “could not have known at the time of filing whether he would find new employment” or “comparable employment.” But these arguments evidence not only a misunderstanding of the law but a mischaraeterization of the undisputed facts. For purposes of determining the “amount in controversy,” the question is not what a plaintiff will recover or is likely to recover; it is what the plaintiff seeks to recover. And it is beyond dispute that, from the moment his lawsuit was filed, Brite sought lost future wages and benefits. Indeed, he quit looking for a job months before filing suit; and he never sought reinstatement.
Finally, Brite argues “USAA has not proven that Brite’s jurisdictional allegations in his original petition were an ‘obvious fraudulent and bad faith maneuver’ [to] confer jurisdiction on the trial court.” I disagree. I believe the record, taken as a whole, establishes that Brite’s trial attorney filed the Original Petition with full knowledge that Brite sought far more than $100,000 in actual damages and purposefully drafted the Original Petition to conceal that fact by omitting the statement required by Rule 47(b) that the claimed damages are “within” the court’s jurisdictional limits. A full statement of the procedural background of this case insofar as it involves the jurisdictional question supports my belief. But whether my belief is correct or not is immaterial. Brite’s Second Amended Petition, when viewed in light of the applicable law, conclusively establishes that Brite sought more than $100,000 in actual damages from the moment his Original Petition was filed. Indeed, he sought well over $1 million. Accordingly, I would reverse the trial court’s judgment and dismiss the cause. Brite would then have sixty days in which to refile his suit in the district court. See Allright, 590 S.W.2d at 735-36 (“Since the county court at law was without jurisdiction in this case, appellee may, of course, refile in the proper court within sixty days of the date that this decision becomes final.”) (citing the predecessor of section 16.064 of the Texas Civil Practice and Remedies Code); Allright, Inc. v. Guy, 696 S.W.2d 603, 605 (TexApp.-Houston [14th Dist.] 1985, no writ) (holding that Guy’s compliance with court’s instructions in first appeal precluded Allright’s statute of limitations argument).
. Peek v. Equip. Serv. Co., 779 S.W.2d 802, 804 (Tex.1989).
. Tex. Gov’t Code Ann. § 25.0003(c) (Vernon 2004).
. See Sears, Roebuck & Co. v. Big Bend Motor Inn, Inc., 818 S.W.2d 542, 546 n. 5 (Tex.App.Fort Worth 1991, writ denied) (noting that Rule 47 was amended to add subsection b effective September 1, 1990).
. Tex. Lab.Code Ann. § 21.2585(d)(4) (Vernon Supp.2004).
. USAA’s attorney cited section 16.064 of the Texas Civil Practice and Remedies Code, which provides that "[t]he period between the date of filing an action in a trial court and the date of a second filing of the same action in a different court suspends the running of the applicable statute of limitations for the period if” the action is dismissed "because a lack of jurisdiction in the trial court where the action was first filed” and the action is refiled "in a court of proper jurisdiction” "not later than the 60th day after the date of dismissal.” Tex. Civ. Prac. & Rem.Code Ann. § 16.064 (Vernon 1997).
. The majority states that "in Bland Ind. Sch. Dist. v. Blue, the Texas Supreme Court appears to have recognized the sufficiency of Brite's allegation by stating, 'The plaintiff’s allegation of damages in excess of jurisdictional limits suffices to show the amount in controversy, even if damages cannot ultimately be proved at all.'" However, this statement in Bland was made in the context of a discussion regarding a situation in which "a *584defendant asserts that the amount in controversy is below the court’s [minimum ] jurisdictional limit....” Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex.2000) (emphasis added). When the statement is read in context, it clearly has no application to the situation presented here-a defendant asserting that the amount in controversy is above the court’s maximum jurisdictional limit. Further, the court qualified the statement quoted by the majority by stating that "[t]he plaintiff's pleadings are determinative unless the defendant specifically alleges that the amount was pleaded merely as a sham for the purpose of wrongfully obtaining jurisdiction, or the defendant can readily establish that the amount in controversy is insufficient.” Id. (emphasis added). The majority also appears to find support for its holding in Sears, Roebuck & Co. v. Big Bend Motor Inn, Inc., 818 S.W.2d 542 (Tex.App.-Fort Worth 1991, writ denied). However, the Fort Worth Court of Appeals properly recognized that a defendant who fails to object to a defect in pleading jurisdiction "waives the right to complain of such defect if the plaintiff establishes jurisdiction at trial before resting its case” and thus went on to determine that the testimony at trial established the amount in controversy was within the county court at law's $50,000 maximum jurisdictional limit. Id. at 546 (emphasis added).
. At the time, article 1970a provided as follows:
All county courts at law, county civil courts, and other statutory courts exercising civil jurisdiction corresponding to the constitutional jurisdiction of the county court in civil cases shall have jurisdiction concurrent with that of the district court when the matter in controversy shall exceed in value Five Hundred Dollars ($500) and shall not exceed Five Thousand Dollars ($5,000) exclusive of interest.
Act of May 31, 1971, 2nd Leg., R.S., ch 915, § 1, 1971 Tex. Gen. Laws 2814 (current version at Tex. Gov’t Code Ann. § 25.003(c) (Vernon 2004)).
. The holding in AUright was agreed with and approved by this court in Long v. Fox, 625 S.W.2d 376, 379 (Tex.App.-San Antonio 1981, writ ref'd n.r.e.).
. Tex. Lab.Code Ann. § 21.2585(d)(4).