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TEXAS COURT OF APPEALS, THIRD DISTRICT, = AT=20 AUSTIN
NO. 03-05-00
v. Milburn Dearing, Kenneth Head, and Mike = Warren,=20 Individually and on Behalf of All Others Similarly = Situated,=20 Appellees
FROM THE = DISTRICT=20 COURT OF TRAVIS COUNTY, 200TH = JUDICIAL=20 DISTRICT NO.
I join the = majority opinion=20 except for that part of the opinion dealing with the single filing = rule.=20 Because I disagree that there is currently a basis for = recognizing, in=20 Texas, a single filing rule for the type of complaint at issue in = this=20 case, I concur in the majority's judgment, but=20 write separately. The majority =
concludes that=20
the federal statutory structure for Title VII claims is similar =
enough to=20
the Texas Labor Code that Texas courts should apply the single =
filing rule=20
for the purposes of satisfying administrative exhaustion =
requirements in=20
the context of class treatment of individual claims. However, =
there is a=20
critical distinction between the Texas and federal statutory =
schemes.=20
Federal law provides that administrative exhaustion may be =
satisfied by a=20
charge filed "by or on behalf of a person claiming to be=20
aggrieved." 42 U.S.C.A. =A7 2000e-5(b) (West 2003) (emphasis =
added). Thus, a=20
federal charge filed on behalf of a class of persons similarly =
situated=20
can satisfy federal statutory exhaustion requirements and is =
consistent=20
with the federal statutory structure. The Texas statutory =
structure does=20
not contain a similar provision. Under the current Texas statute, =
a charge=20
must be filed by the person aggrieved or the "person's agent." =
See=20
Tex. Lab. Code Ann. =A7 21.201 (West 2006). Thus, under =
current Texas=20
law, administrative exhaustion is not satisfied by a filing merely =
"on=20
behalf of" a person. The filing must be by the person or the =
person's=20
agent. Other than the unsupported statements in Dearing =
I, While it might = seem=20 efficient or reasonable from a policy standpoint to consider a = single=20 filing rule for the purposes of administrative exhaustion in the = class=20 certification context, Texas courts are not in a position to = judicially=20 incorporate such a rule into the labor code. Administrative = remedies and=20 the requirements for exhausting those remedies are creatures of = statute.=20 The statutes govern how those requirements may be satisfied. The = current=20 Texas statutory scheme for exhaustion of administrative remedies = for the=20 type of claims at issue in this case requires that a charge be = filed by=20 the person aggrieved or the person's agent. It does not provide = for a=20 filing "on behalf of" the person aggrieved or by someone who is = something=20 like an agent or similar to an agent. A person seeking to be the = class=20 representative of a putative class is not an agent for unnamed = class=20 members--apparent, implied, or otherwise--and, therefore, under = the Texas=20 Labor Code, cannot satisfy exhaustion requirements on behalf of = all other=20 members of a class. I would hold that = the single=20 filing rule is inconsistent with the current iteration of Texas = Labor Code=20 section 21.201 and should not be engrafted on the statutory = administrative=20 remedy structure by judicial decision. I would also hold that this = Court's=20 decision on this issue in Dearing I is clearly=20 erroneous. G. Alan Waldrop,=20 Justice Before Chief = Justice Law,=20 Justices Pemberton and Waldrop Filed: August 3,=20 2007 1. Tex. Parks & Wildlife Dep't v.=20 Dearing, 150 S.W.3d 452 (Tex. App.--Austin 2004, = pet. denied),=20 cert denied, 544 U.S. 960 (2005).=20 |