|Dissenting Opinion by Scott A. Brister
Argued January 25, 2006
Justice Brister filed a dissenting opinion, in which Chief
Justice Jefferson, Justice O’Neill, and Justice Medina joined.
The Texas Legislature passed the Payday Law to give
unpaid workers a quick alternative to lengthy civil litigation.
But today the Court holds they lose everything if they pursue
that alternative a little too late, even though years remain to
file suit in court. This is not about biting apples twice; this is
about a man’s wages, a claim that like many others can be
filed a second time if the first disposition was not on the
merits. By holding Payday claims dismissed for tardiness
cannot be refiled in court, the Court converts a law giving
extra options to workers into a trap where they may forfeit all
their rights. Because I agree with the state agency entrusted
with these claims that this could not possibly be what the
Legislature intended, I respectfully dissent.
I agree the Payday Law’s 180-day filing requirement is
mandatory but not jurisdictional. But I disagree that an order
dismissing a Payday claim as untimely precludes a
subsequent suit. Res judicata attaches only to a judgment on
the merits. There are at least five reasons why the Texas
Workforce Commission’s order here is not one.
First, the Commission itself says so. In its amicus brief
supporting Igal’s right to file suit in court, the Commission
says “res judicata does not apply . . . because TWC’s order
was not a judgment on the merits but a procedural dismissal
for untimeliness.” How can the Court hold the Commission
intended a merits dismissal when the Commission itself
stipulates that it did not? There is no reason to doubt the
Commission’s word; the Commission “dismissed” Igal’s
claim, using a term employed throughout the Texas Rules of
Civil Procedure, and American law generally, for
dispositions without a hearing on the merits. The
Commission may have only two options for preliminary
determinations (to dismiss or to order payment), but after
a hearing it can issue any written order it likes.
Second, the order itself shows that Igal’s contract rights
were considered only for the purpose of deciding whether his
claim was untimely. Igal’s contract apparently guaranteed
him extended payments if terminated without cause, but
nothing if terminated by notice of nonrenewal. Because the
extended payments would have been due within 180 days of
Igal’s Payday filing, the Commission had to decide whether
he was terminated for cause or nonrenewal — not as a
finding on the merits but simply to decide whether his claim
was timely filed.
Third, to presume the Commission made a ruling on the
merits, we must presume it made a clear error. While an
untimely claim did not deprive the Commission of
jurisdiction, it did prevent the Commission from reaching the
merits if anyone complained (which Brightstar did). There is
no good reason to encourage administrative agencies to
address the merits of barred claims, especially when those
claims are not yet barred in court. We should not presume
the Commission committed an error by reaching the merits
when it could not.
Fourth, Brightstar insisted throughout the Commission
proceedings that Igal’s claim was untimely. Brightstar could
have waived this complaint (as it was not jurisdictional), and
agreed to have the Commission decide the case on the
merits. But it did not — it insisted Igal’s claim should be
dismissed because he filed late. Having obtained success
on that ground, Brightstar should not be allowed to change its
position when the claim was refiled in court.
Fifth, judgments based on limitations are usually
considered rulings on the merits because a late claim can
never be refiled any earlier (barring time travel). But an
important exception applies here because there are two
different limitations periods. As the First Restatement of
Judgments stated in a comment:
Thus, if the plaintiff brings an action to enforce a claim in one
State and the defendant sets up the defense that the action
is barred by the Statute of Limitations in that State, the
plaintiff is precluded from thereafter maintaining an action to
enforce the claim in that State. He is not, however, precluded
from maintaining an action to enforce the claim in another
State if it is not barred by the Statute of Limitations in that
The Second Restatement of Conflict of Laws now makes the
Thus, the plaintiff’s suit may be dismissed in state X on the
ground that it is barred by the X statute of limitations. This
judgment will preclude the plaintiff from thereafter
maintaining an action to enforce the claim in state X. This
judgment, however, binds the parties only with respect to the
issue that was decided. It will preclude the plaintiff from
maintaining an action to enforce the claim in another state
only if the courts of the other state would apply the X statute
of limitations . . . .
The First, Second, Fifth, Seventh, and Tenth federal circuit
courts all agree that while dismissals based on limitations
are usually preclusive, they are not preclusive when a case is
filed in two different systems that apply two different
limitations periods. In such cases, as Wright and Miller
state: “[i]f the second forum would decide independently to
apply a longer period of limitations . . . the traditional rule has
been that it is free to proceed with the second action.”
While dismissal of an untimely claim may be preclusive if
based on the substantive law governing the claim (Texas
contract law’s four years), it is not preclusive if based on a
shorter period designed as a procedural protection for the
first forum (the Commission’s 180 days):
Dismissal based on the limitations period established by the
law that governs the claim is a judgment on the merits that
precludes application of a different limitations period by
another court. Dismissal based on application of the forum’s
own shorter period for purposes of protecting the forum is
not a judgment on the merits and does not preclude an
action on the same claim in a court that would apply a longer
This Court has never adopted these well-settled and long-
standing principles, but we certainly have not rejected them
either. In the past, Texas law has not provided two limitations
periods for a single claim; now that it sometimes does when
there is an administrative alternative to the courts, we should
explain why we reject the traditional rules followed by
Igal can hardly be faulted for not appealing the
Commission’s decision. As his claim was untimely, an
appeal would have been futile. Even if he could have
convinced an appellate court to reverse the part of the
Commission’s decision discussing the merits (which I doubt
since it was necessary to decide timeliness), he would still
have lost due to the late filing. The Payday process is
supposed to be quick and cheap; requiring an appeal for this
late claim would have simply made it longer and more
I would not hold that every unsuccessful Payday claimant
can start over with the same claim in court. Claimants should
not be permitted to litigate the same issue twice. But the
only issue Igal has litigated so far is whether he filed his
Payday claim within 180 days; he does not need to litigate
that issue again here as it is irrelevant to whether he filed his
breach of contract claim within four years.
The Legislature has chosen to give Texans asserting
Payday claims two different ways to proceed. That being the
case, this Court has no business saying that if they try one
too late, then they get none at all. The Commission properly
dismissed Igal’s Payday claim as late, but that does not
preclude his common law claim which was filed on time.
Because the Court holds otherwise, I respectfully dissent.
OPINION DELIVERED: December 7, 2007
 Citizens Ins. Co. of Am. v. Daccach, 217 S.W.3d 430,
449 (Tex. 2007); Amstadt v. U.S. Brass Corp., 919 S.W.2d
644, 652 (Tex. 1996).
 See, e.g., Tex. R. Civ. P. 39(b) (addressing whether suit
should be “dismissed” for indispensable party); id. 42(e)
(requiring court approval for “settlement, dismissal, or
compromise” of class action); id. 89 (allowing court to which
venue is transferred to “dismiss” case if filing fee not paid);
id. 143 (allowing claim to be “dismissed” if security for costs
not paid); id. 151 (allowing suit to be “dismissed” if
deceased plaintiff’s representatives do not appear); id. 161
(allowing “dismissal” of unserved defendants); id. 162, 163
(allowing plaintiff to “dismiss” suit before close of evidence);
id. 165a (allowing cases to be “dismissed” for want of
prosecution); id. 215.2(b)(5) (allowing order “dismissing” suit
as discovery sanction); id. 330(d) (allowing court to “dismiss”
case if called for trial twice but not tried); id. 736(10)
(requiring home-loan foreclosure action to be “dismissed” if
owner files action contesting foreclosure).
 See Black’s Law Dictionary 502 (8th ed. 2004) (defining
“dismissal” as “Termination of an action or claim without
further hearing, esp. before the trial of the issues involved”).
 See Act of May 12, 1993, 73d Leg., R.S., ch. 269, § 1,
1993 Tex. Gen. Laws 1014 (amended 2005) (current version
at Tex. Lab. Code § 61.052).
 See Act of May 12, 1993, 73d Leg., R.S., ch. 269, § 1,
1993 Tex. Gen. Laws 1015 (amended 2005) (“After a
hearing, the commission shall enter a written order for the
payment of wages that the commission determines to be
due or for the payment of any penalty the commission
 Stephen W. Hawking, Chronology Protection Conjecture,
46 Physical Rev. D. 603 (1992) (arguing in his “chronology
protection conjecture” that the laws of physics are such as to
prevent time travel on all but sub-microscopic scales).
 Restatement (First) of Judgments § 49 cmt. a (emphasis
 Restatement (Second) of Conflict of Laws § 110 cmt. b
 Reinke v. Boden, 45 F.3d 166, 173 (7th Cir. 1995);
Henson v. Columbus Bank, 651 F.2d 320, 325 (5th Cir.
1981); Jimenez v. Toledo, 576 F.2d 402, 404 (1st Cir.
1978); Sack v. Low, 478 F.2d 360, 363 (2d Cir. 1973); Titus
v. Wells Fargo Bank & Union Trust, 134 F.2d 223, 224 (5th
Cir. 1943); Stokke v. S. Pac. Co., 169 F.2d 42, 43 (10th Cir.
1948); United States v. Lyman, 125 F.2d 67, 70 (1st Cir.
1942); Warner v. Buffalo Drydock Co., 67 F.2d 540, 541 (2d
 18A Charles Alan Wright, Arthur R. Miller & Edward H.
Cooper, Federal Practice and Procedure § 4441 (2d ed.
 Id. (emphasis added).
 Cf. Harris County v. Sykes, 136 S.W.3d 635, 639 (Tex.
2004) (holding sovereign immunity dismissal should be with
prejudice “because a plaintiff should not be permitted to
relitigate jurisdiction once that issue has been finally
 Tex. Civ. Prac. & Rem. Code § 16.004(a)(3); Via Net v.
TIG Ins. Co., 211 S.W.3d 310, 312 (Tex. 2006) (per curiam).