Texas = Judiciary Online

Affirmed and Majority and Concurring Opinions = filed=20 December 21, 2006.

In The

Fourteenth=20 Court of Appeals

____________

NO. 14-05-00785-CV

____________

DONALD WAYNE=20 HULL,=20 Appellant

DICARLOS DAVIS=20 (DATASORSCONSULTING, L.L.C.) AND TEXAS = WORKFORCE=20 COMMISSION, Appellees

On Appeal from the = County Civil Court at Law No. 4

Harris County, Texas

Trial Court Cause = No. 823155

M A J O R=20 I T Y O P I N I O N

Appellant,=20 Donald Wayne Hull, appeals the trial court=3Ds judgment=20 dismissing his suit against Dicarlos = Davis=20 (Datasorsconsulting, L.L.C.) (ADavis@)=20 and the Texas Workforce Commission (ATWC@)=20 for want of jurisdiction. Hull presents three issues on=20 appeal. Finding the trial court properly granted = TWC=3Ds plea to=20 the jurisdiction, we affirm.

Background

Hull = filed=20 this lawsuit against Davis and = TWC on=20 September 15, 2004, for payment of wages allegedly incurred when = Hull was contracted through Davis = for the sale=20 of DSL and residential phone services. Prior to the = initiation of=20 this suit, Hull filed a complaint for = unpaid wages=20 with TWC. TWC denied the claim on February 25, 2004. = Hull = filed an appeal=20 of the preliminary wage determination order^[1] (APWDO@) on June=20 4, claiming he moved and was supplying TWC with a new = address. That=20 appeal was denied and notification mailed to Hull on = July=20 6. Hull then filed suit in the = trial=20 court.

Hull=3Ds original=20 petition, entitled APlaintiffs=3D = Donald=20 Wayne Hull [sic] Complaint On A Promissory Note Or = Contract,@^[2] = names=20 Davis, Datasorsconsulting LLC, and TWC = as=20 defendants and makes allegations under Chapter 61 of the Texas = Labor=20 Code. See Tex. Lab. Code Ann. ' 61.001 et seq. (Vernon=20 2006). In his petition, Hull = demands payment=20 of $1,660.00 from the defendants. Davis/Datasorsconsulting LLC =20 answered the suit, and TWC separately answered with a = general=20 denial and the affirmative defense of sovereign immunity and = asserted a=20 plea to the jurisdiction. Hull responded to TWC=3Ds pleading=20 and asserted (1) he had no intent of proceeding against TWC = because his=20 complaints are entirely against Davis, and (2) Hull possesses a = common law=20 claim for unpaid wages against Davis under the Texas Payday = Law. =20 Hull also=20 filed a motion for continuance (entitled AMotion = of=20 Request To Postpon=20 [sic] Trial@) until=20 such time as he would be released from prison and could attend any = trial=20 settings and adequately prepare.

The trial=20 court held a hearing on July 11, 2005. During that hearing, = Dicarlos Davis, representing himself and = Datasorsconsulting, and counsel for = TWC were=20 present. The trial court proceeded without Hull=3Ds=20 attendance because Hull was incarcerated and would = remain so=20 for two more years. The trial court first denied Hull=3Ds motion=20 for continuance. The trial court then heard TWC=3Ds argument=20 in support of its plea to the jurisdiction and granted the = plea. =20 Hull=20 timely filed a notice of appeal.

Discussion

On appeal,=20 Hull alleges the following errors by the trial court: (1) = the trial=20 court erred in failing to rule on Hull=3Ds motion=20 for appointment of counsel; (2) the trial court erred in entering = a final=20 judgment against Davis, and the judgment was Asilent;@ = and (3)=20 the trial court erred in failing to award Hull $1,660 when Davis = accepted=20 Hull=3Ds=20 complaint on a promissory note or contract. TWC makes = several=20 arguments in support of the trial court=3Ds granting=20 of TWC=3Ds plea to=20 the jurisdiction. Before turning to the merits of Hull=3Ds=20 substantive argument, we must first determine whether the trial = court=20 correctly granted TWC=3Ds plea to=20 the jurisdiction. See Tex. Ass=3Dn of Bus.=20 v. Tex. Air=20 Control Bd., 852=20 S.W.2d 440, 443 (Tex. 1993). If the trial = court did=20 not err in granting the plea, then it did not have jurisdiction = over=20 Hull=3Ds claims,=20 including the issues he raises on appeal to this court. =

I. &= nbsp; =20 Standard of Review

TWC=3Ds plea to = the=20 jurisdiction was based on the Payday Law. See Tex. Lab. Code Ann. = ' 61.001 et seq. (Vernon=20 2006). A plea to the jurisdiction = challenges=20 the trial court=3Ds = authority to=20 determine the subject matter of a cause of action. Bland Indep. Sch. Dist.=20 v. Blue, 34 S.W.3d 547, 554 = (Tex.=20 2001). Whether the trial court properly = granted a=20 plea to the jurisdiction is a question of law, which we examine = under a=20 de novo standard of review. Mayhew v.=20 Town of Sunnyvale, 964 S.W.2d = 922, 928=20 (Tex.=20 1998). The plaintiff has the burden to allege facts=20 affirmatively demonstrating the trial court has subject matter=20 jurisdiction. Tex. Ass=3Dn of = Bus., 852=20 S.W.2d at 446. In analyzing a plea to the jurisdiction, a = court must=20 not weigh the claims=3D merits = and should=20 consider only the plaintiff=3Ds = pleadings and the=20 evidence pertinent to the jurisdictional inquiry. = County of Cameron v.=20 Brown, 80 S.W.3d 549, 555 (Tex. 2002). When=20 considering a trial court=3Ds order = on a plea to=20 the jurisdiction, we first review the plaintiff=3Ds = pleadings. =20 Id. We = construe the=20 pleadings in the plaintiff=3Ds favor = and look to=20 the pleader=3Ds=20 intent. Id. We take as = true the=20 facts pled in the plaintiff=3Ds = petition in=20 determining whether those facts support jurisdiction in the trial = court,=20 and we may review the entire record to determine if there is=20 jurisdiction. Tex.=20 Ass=3Dn of=20 Bus., 852 S.W.2d at 446; see also Waco Indep. Sch. Dist. v. = Gibson, 22 S.W.3d 849, 854 (Tex.=20 2000). We should confine our review to the = evidence relevant to the jurisdictional issue. Bland, = 34 S.W.3d at 555.

When=20 a plaintiff fails to plead facts that establish jurisdiction, but = the=20 petition does not affirmatively demonstrate incurable defects in=20 jurisdiction, the issue is one of pleading sufficiency, and the = plaintiff=20 should be afforded the opportunity to amend. Id.; Peek v. Equip. Serv. Co. of San=20 Antonio, 779 S.W.2d 802, 804B05 = (Tex. = 1989). =20 On the other hand, if the pleadings affirmatively negate the = existence of=20 jurisdiction, then a plea to the jurisdiction may be granted = without=20 allowing the plaintiff an opportunity to amend. = Brown, 80 S.W.3d at 555.

II. &= nbsp; =20 Did the trial court err in granting the plea to the = jurisdiction=20 based on the Payday Law?

An=20 employee seeking unpaid wages from an employer may pursue a = judicial=20 action against the employer or may seek an administrative remedy = as=20 provided under the Payday Law. Holmans, = II v. Transource Polymers, Inc., 914 S.W.2d = 189, 192=20 (Tex. App.CFort = Worth=20 1995, writ denied). Chapter 61 of the Labor Code sets = forth=20 the requirements of the Texas Payday Law. Tex. Lab. Code Ann. = '' 61.001 et seq. (Vernon=20 2006). The administrative remedy = prescribed by=20 the Payday Law establishes authority in the Texas Workforce = Commission to=20 govern the payment of wages by employers. Holmans, 914 S.W.2d at 190=20 n.1; see Tex. Lab. Code Ann. '' 61.001(1),=20 61.002. The statute provides for = administrative=20 review of claims and judicial review of final administrative=20 decisions. Holmans, 914 = S.W.2d=20 at 190 n.1; Tex. Lab. Code Ann. = '' 61.052, 61.0525, 61.055,=20 61.062. The remedial scheme provided by = the=20 Payday Law does not preclude a claimant=3Ds ability = to bring an=20 action against an employer for unpaid wages, but only provides an=20 alternative means for enforcement of wages, many of which would be = too=20 small to justify the expense of a civil lawsuit. Wal-Mart Stores, Inc. v. Lopez, 93 S.W.3d = 548, 561=20 (Tex.=20 App.CHouston [14th=20 Dist.] 2002, no pet.); Holmans, = 914=20 S.W.2d at 193. Should a claimant choose to file a = claim under=20 the statute, utilize its remedial scheme, and appeal the final=20 administrative order, then the claimant is properly required to = abide by=20 the statute=3Ds=20 provisions. Holmans, = 914 S.W.2d at 193. No further remedy is = permitted.

III. &= nbsp; =20 Did Hull pursue a common law claim = or an=20 administrative remedy?

Hull argues his common law claim is not = preempted by=20 the Payday Law because (1) he is not seeking a remedy from TWC, = and (2) he=20 chose to pursue a judicial remedy against Davis. We disagree. = First, a=20 review of Hull=3Ds = pleadings suggests=20 he is seeking judicial relief from an administrative decision = under the=20 Payday Law, and thus, TWC should be made a defendant in the = suit. =20 See Tex. Lab. Code Ann. ' 61.062 = (requiring a=20 claimant seeking judicial review of the TWC=3Ds = preliminary wage=20 determination order to name TWC and any other party proceeding = before the=20 TWC as defendants in the suit).^[3] Hull=3Ds = arguments in his=20 reply brief and his responsive pleading to TWC=3Ds = original answer and=20 plea to the jurisdiction clearly indicate Hull does not believe = TWC should=20 be involved in the suit against Davis and should not be able to=20 effectively remove jurisdiction from the trial court. = Hull, = however,=20 brought this suit pursuant to the Texas Payday Law, as referenced = by the=20 style of the case and the following statement in his original=20 petition: AThis = is an=20 [sic] civil action complaint on a promissory note or contract = under the=20 Texas Payday Law.@ Hull=20 demanded judgment against Davis and TWC for $1,660.00 and=20 commissions. Even though Hull=3Ds = secondary arguments=20 are that he did not intend to file suit against TWC directly, his = initial=20 actions to name TWC as a defendant and reference the Payday Law in = his=20 first pleading suggest Hull initially intended to seek judicial = review=20 under the Payday Law and appeal the administrative ruling of the=20 TWC.

By=20 initiating and proceeding first with an administrative remedy = under the=20 Payday Law, Hull chose to forego his purely = common=20 law causes of action and elected the alternative remedy provided = by the=20 Payday Law. A party may not initially elect one remedy and = then=20 choose the other remedy when dissatisfied with the first = result. =20 See Holmans, 914 S.W.2d=20 at 194. Hull simply cannot have it both = ways. Had Hull wanted to pursue his = common law=20 remedies, he would have been required to withdraw his claim with = the TWC=20 before the commission=3Ds = decision became=20 final. See id.

IV. &= nbsp; =20 Did Hull exhaust his administrative = remedies=20 under the Payday Law?

Having=20 found Hull elected to pursue an=20 administrative remedy to recover wages from Davis, we now consider whether Hull = exhausted those=20 administrative remedies before seeking judicial review. = After=20 commencing a claim under the Payday Law, a claimant must exhaust = all=20 administrative remedies before seeking appellate relief in the = trial=20 court. See Tex. Lab. Code Ann. ' = 61.062(a). =20 Otherwise, the trial court lacks jurisdiction to hear the = claim. =20 Subaru of Am., Inc. v. David McDavid Nissan,=20 Inc., 84 S.W.3d 212, 221 (Tex. 2002);=20 Kshatrya v. Tex. Workforce Comm=3Dn, 97 = S.W.3d 825,=20 831 (Tex. App.CDallas 2003,=20 no pet.); Holmans, 914 S.W.2d = at 191B92. =20 Abiding by the time limits of the Texas Payday Law is = mandatory. =20 See Tex. Lab. Code Ann. '' 61.051, 61.054,=20 61.062. When a statute requires = performance of=20 an act within a certain specified time, that period of time will = not be=20 extended unless the statute so provides. Tex. Employment Comm=3Dn v.=20 Ortiz, 574=20 S.W.2d 214 (Tex. 1978).

TWC=20 contends Hull did not exhaust all = administrative=20 remedies before seeking judicial relief when he did not appeal the = preliminary wage determination order (APWDO@) as=20 required by Section 61.054. = See=20 Tex. Lab. Code Ann. ' 61.054. = Section=20 61.054 requires a claimant to seek a hearing before a wage claim = appeal=20 tribunal to appeal a PWDO within twenty-one (21) days after the = date the=20 commission examiner mails notice of the PWDO. Tex. Lab. Code Ann. = ' = 61.054(b). If a=20 hearing is not sought within that time limit, then the order = becomes=20 final, and neither party is entitled to judicial review. = Tex. Lab. Code Ann. = ' 61.055. = The=20 record reflects the original PWDO was mailed on February 25 and = Hull = does not=20 dispute this date on appeal; therefore, an appeal must have been = filed by=20 March 17. A copy of the original PWDO does not appear in the = record,=20 but the record does contain a copy of TWC=3Ds=20 ADecision = on Motion=20 for Rehearing From Payday Law=20 Decision@ = mailed to=20 Hull on=20 July 6, 2004. In the rehearing decision, TWC concluded = Hull = untimely filed=20 for an appeal hearing by waiting to file until June 4. TWC = dismissed=20 the rehearing because Hull did not timely file his=20 appeal. Because Hull did = not timely=20 file for an appeal hearing within the twenty-one day time frame, = the=20 original decision mailed on February 25 became the final order of = TWC for=20 all purposes, and Hull was precluded from = judicial=20 review. See Tex.=20 Lab. Code Ann. ' = 61.055;=20 see also Fields v. Phillips Sch. of = Bus.=20 and Tech., 870 F. Supp. 149, 154 = (W.D. Tex.=20 1994) (AAs = neither=20 party requested a hearing to contest the . . . preliminary wage=20 determination order, this order became final for all purposes, and = neither=20 party is entitled to judicial review.@). =20 Hull=20 failed to exhaust his administrative remedy and forfeited judicial = review.

Hull=3Ds petition attempts = to assert=20 common-law claims for breach of contract and suit on a promissory = note.^[4] Hull=3Ds pleading is an = attempt to=20 recharacterize and reassert the same = claim for=20 unpaid wages initially brought against Davis under the Payday = Law. =20 Having chosen to pursue a remedy under the Payday Law, Hull was = obligated=20 to exhaust his administrative remedies before seeking judicial=20 review. See Tex.=20 Lab. Code Ann. '' =20 61.055,=20 61.062(a); Holmans, 914=20 S.W.2d at 193B94.=20 He = failed to=20 do so. Section 61.055 provides:

If neither party requests a hearing to = appeal a=20 preliminary wage determination order within the period prescribed = by=20 Section 61.054, the order becomes the final order of the = commission for=20 all purposes, and neither party is entitled to judicial review of = the=20 order under this subchapter.

Tex.=20 Lab. Code Ann. ' 61.055.

Based on the = unambiguous=20 language of the statute, neither party is entitled to judicial = review of=20 the commission=3Ds final order. = See=20 id. Hull cannot sidestep the plain = language=20 of the statute by simply reasserting his claim for unpaid wages as = a=20 common-law claim for breach of contract or suit on a promissory=20 note. See 11th St. Bingo Assoc. v. Simonson, No.=20 13-02-399-CV, 2004 WL 1117161, at *2B3 (Tex. App.CCorpus Christi=20 May 20, 2004, no pet.) (mem. op.) (trial court lacked subject = matter=20 jurisdiction over common-law debt action where claimant chose to = pursue=20 remedy under Payday Law and failed to exhaust administrative = remedies);=20 Igal v. Brightstar Info. Tech. Group, Inc., 140 = S.W.3d=20 820, 822B24 (Tex. App.CEastland 2004,=20 pet. granted) (TWC=3Ds final decision that = Payday=20 claim was not timely filed precluded former employee from = asserting=20 common-law breach of contract claim for unpaid wages); Holmans, 914=20 S.W.2d at 193B94 (wage=20 claimant who chooses to pursue remedy under Payday Law must comply = with=20 statutory provisions before pursuing common law = remedies). =20

V. =20 Did Hull=20 waive any complaint on the trial court=3Ds failure=20 to rule on his request for appointed counsel?

In his=20 first issue, Hull complains of the trial=20 court=3Ds failure=20 to rule on his motion for appointed counsel. After a = diligent search=20 of the entire record, we could not find any type of motion = presenting a=20 request for appointed counsel to the trial court or a ruling by = the trial=20 court denying such a request if one was made. Therefore, = appellant=20 has failed to preserve this issue for our review. Tex. R. App. P. = 33.1. We=20 overrule appellant=3Ds first=20 issue.

Conclusion

Because Hull first proceeded against Davis = under the=20 Texas Payday Law, he was required to fully exhaust that = administrative=20 remedy before seeking judicial review. Hull = failed to seek=20 an appeal hearing, as required by Section 61.054 of the Payday = Law,=20 precluding judicial review. See Tex. Lab. Code Ann. = '' 61.054B.055. = Accordingly,=20 the trial court lacked subject matter jurisdiction to consider = Hull=3Ds claims and = properly=20 dismissed Hull=3Ds suit for want of=20 jurisdiction. Having affirmed the trial court=3Ds dismissal of = Hull=3Ds suit for want of=20 jurisdiction, we need not address appellant=3Ds remaining issue = as it does=20 not address the trial court=3Ds = jurisdiction. We=20 affirm the judgment of the trial court.

&n= bsp; &nb= sp; &nbs= p; = ; =20 /s/ =20 John S. Anderson

Justice

Judgment=20 rendered and Majority and Concurring Opinions filed December 21,=20 2006.

Panel=20 consists of Justices Anderson, Edelman, and Frost.

^[1] A=20 preliminary wage determination order is issued by TWC after an = individual=20 claim has been investigated. Tex. Lab. Code Ann. = ' 61.052(a) (Vernon=20 2006).

^[2] =20 The petition states that it is based on a promissory note or = contract, but=20 there is no note or contract attached to the = pleading

^[3] =20 The Payday Law provides for the waiver of sovereign immunity to = suit when=20 it requires a party seeking judicial review of an administrative = remedy to=20 make the TWC a defendant in the lawsuit. Kshatrya v. Tex. Workforce Comm=3Dn, 97 S.W.3d 825, 830 (Tex. App.CDallas 2003,=20 no pet.).

^[4] =20 Hull=3Ds Petition states: AThis=20 is an [sic] civil action complaint on a promissory note or = contract under=20 the Texas Payday law.@ No promissory note or contract is = attached=20 to the=20 pleading.