Danis Tucker and Beverly Tucker v. City of Corpus Christi, Texas

NUMBER 13-18-00328-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
DANIS TUCKER AND BEVERLY TUCKER, Appellants,
v.
CITY OF CORPUS CHRISTI, TEXAS, Appellee.
On appeal from the 28th District Court
of Nueces County, Texas.
ORDER
Before Justices Benavides, Hinojosa, and Perkes
Order Per Curiam
This appeal is before the Court on appellants’ brief, appellee’s brief, and
appellants’ reply brief. After due consideration of the pleadings on file in this matter, the
Court has determined that additional briefing is necessary. Texas Rule of Appellate
Procedure 38.7 provides that “[a] brief may be amended or supplemented whenever
justice requires, on whatever reasonable terms the court may prescribe.” TEX. R. APP.
P. 38.7.
Appellants appeal the trial court’s order granting appellee’s plea to the jurisdiction
and dismissing their suit with prejudice. On appeal, the parties appear to agree that the
dispositive issue is whether appellants’ takings claim is barred by the applicable statute
of limitations. However, neither party provides legal authority establishing that
compliance with the statute of limitations for such a claim is a jurisdictional requirement
properly asserted in a plea to the jurisdiction.
Limitations is generally classified as an affirmative defense and is not jurisdictional
in nature. In re United Servs. Auto. Ass'n, 307 S.W.3d 299, 308 (Tex. 2010). However,
section 311.034 of the government code provides that “statutory prerequisites to a suit,
including the provision of notice, are jurisdictional requirements in all suits against a
governmental entity.” TEX. GOV’T CODE ANN. § 311.034. The Texas Supreme Court in
interpreting this provision has explained that “a statutory prerequisite to suit, whether
administrative (such as filing a charge of discrimination) or procedural (such as timely
filing a lawsuit) is jurisdictional when the defendant is a governmental entity.” Prairie
View A & M Univ. v. Chatha, 381 S.W.3d 500, 515 (Tex. 2012). Chatha established a
three-step test to determine whether a condition set by statute is a jurisdictional
“prerequisite to suit.” First, the “prerequisite must be found in the relevant statutory
language.” Id. at 512. “Second, the prerequisite must be a requirement.” Id. “And
finally, the term ‘pre’ indicates the requirement must be met before the lawsuit is filed.”
Id.
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If the statutory deadline for a takings claim does not meet the three prongs of the
Chatha test, it is not a jurisdictional requirement, and cannot support the granting of a
plea to the jurisdiction. See Zamora v. Tarrant County Hosp. Dist., 510 S.W.3d 584, 589
(Tex. App.—El Paso 2016, pet. denied).
Whether compliance with the applicable limitations period for takings claim is a
statutory prerequisite to suit appears to be an issue of first impression. Accordingly, the
Court requests supplemental briefing from the parties regarding whether the statute of
limitation governing appellants’ takings claim is a statutory prerequisite to suit as
contemplated by § 311.034 of the government code and the test announced in Chatha.
Appellants’ supplemental brief shall be filed within twenty-one days from the date of this
order, and appellee’s supplemental brief, if any, shall be filed within fourteen days
thereafter. This appeal is ABATED and removed from the Court’s active docket until
receipt of the requested briefing.
IT IS SO ORDERED.
PER CURIAM
Delivered and filed the
8th day of July, 2019.
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