TEXAS DEPARTMENT OF TRANSPORTATION v. CALLAWAY (2025)

OPINION

In this interlocutory appeal, appellant Texas Department of Transportation (TXDOT) appeals the denial of its plea to the jurisdiction in a lawsuit brought by appellee Lee Callaway. See Tex. Civ. Prac. & Rem. Code § 51.014(8). TXDOT argues Callaway's suit should be dismissed for lack of subject-matter jurisdiction because he filed suit in the wrong venue and compliance with the Texas Tort Claims Act's (TTCA's) venue provision is a jurisdictional prerequisite to suit. See Tex. Civ. Prac. & Rem. Code § 101.102(a). In this issue of first impression, we conclude the mandatory venue requirement in Texas Civil Practice and Remedies Code section 101.102(a) is a statutory prerequisite to suit, making failure to adhere to it a jurisdictional bar to suit. Therefore, we reverse the trial court's order and dismiss Callaway's claims against TXDOT for lack of subject-matter jurisdiction.

Background

On December 24, 2021, Callaway's motorcycle crashed at or near the 8800 block of State Highway 146 in Baytown, Texas. The Texas Peace Officer's Crash Report stated the crash occurred in Harris County; however, the crash was later discovered to have occurred in Chambers County. Callaway filed suit in Harris County, Texas against a construction company that he alleged created the roadway condition that caused the crash. Callaway later amended his petition to add TTCA claims against TXDOT, alleging the construction company created the allegedly defective roadway condition while under contract with TXDOT. He alleged TXDOT breached its duty to use reasonable care with the maintenance and care of the road where the crash occurred, as well as its duty to adequately warn of unsafe conditions.

TXDOT answered and raised the defense of sovereign immunity; however, it did not challenge the venue selected by Callaway until three weeks later when it filed a motion to transfer venue to Chambers County. In that motion, TXDOT explained it had discovered the crash occurred in Chambers County and that under section 101.102(a), Chambers County was the proper venue for claims arising from the crash. TXDOT argued section 101.102(a) was both mandatory and jurisdictional. In response, Callaway argued that section 101.102(a) was not jurisdictional and that TXDOT waived its right to challenge venue by failing to assert the issue before or along with its original answer. After a hearing, the trial court found that “the accident happened in Chambers County,” but it denied TXDOT's motion to transfer venue based on “a due order of pleadings analysis and the Court's interpretation of CPRC 101.201.”

TXDOT then filed a plea to the jurisdiction, arguing section 101.102(a) was a statutory prerequisite to suit against governmental entities and thus jurisdictional pursuant to Texas Government Code section 311.034. See Tex. Civ. Prac. & Rem. Code § 101.102(a); Tex. Gov't Code § 311.034. Because Callaway filed suit in the wrong venue, TXDOT argued the Harris County trial court lacked jurisdiction over the case. The trial court denied TXDOT's plea to the jurisdiction. TXDOT now appeals the trial court's denial of its plea to the jurisdiction.

Analysis

In one issue, TXDOT argues Callaway's suit should be dismissed for lack of subject-matter jurisdiction because Callaway filed suit in the wrong venue and compliance with section 101.102(a) is a jurisdictional prerequisite to suit.

I. Standard of Review and Applicable Law

A. Standard of Review

Sovereign immunity bars suits against the state and its entities, and this immunity remains intact unless surrendered in express and unequivocal terms by a statute's clear and unambiguous waiver. Prairie View A&M Univ. v. Chatha, 381 S.W.3d 500, 512 (Tex. 2012) (citing Tex. Gov't Code § 311.034; Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 225–26 (Tex. 2004)). Under this doctrine, the legislature “specifically carves out particular substantive claims for which” the state “will consent to suit and provides the procedures a litigant must follow to obtain such waiver.” See id. at 512–13. Any “purported statutory waiver of sovereign immunity should be strictly construed in favor of retention of immunity.” See id. at 513. Sovereign immunity from suit implicates a trial court's subject-matter jurisdiction and is properly asserted in a plea to the jurisdiction. Engelman Irrigation Dist. v. Shields Bros., Inc., 514 S.W.3d 746, 751 (Tex. 2017). Whether a court has subject-matter jurisdiction is a question of law reviewed de novo. See Miranda, 133 S.W.3d at 226, 228.

When a plea to the jurisdiction challenges the pleadings, we determine if the pleader has alleged facts that affirmatively demonstrate jurisdiction. Id. at 226. We construe the pleadings liberally in favor of the plaintiff and look to their intent. Id. When a plea to the jurisdiction challenges the existence of jurisdictional facts, we consider relevant evidence submitted by the parties when necessary to resolve the jurisdictional issue raised. Id. at 227. If the evidence creates a fact question regarding the jurisdictional issue, then a court cannot grant the plea, and the fact issue will be resolved by the fact finder. Id. at 227–28. This standard generally mirrors the standard for summary judgment. Id. at 228. In determining whether a material fact issue exists, we take as true all evidence favorable to the plaintiff and indulge reasonable inferences in their favor. Alamo Heights Indep. Sch. Dist. v. Clark, 544 S.W.3d 755, 771 (Tex. 2018). However, we cannot disregard evidence necessary to show context, and we cannot disregard evidence and inferences unfavorable to the plaintiff if reasonable jurors could not. Id.

Statutory construction is a question of law we review de novo. Maxim Crane Works, L.P. v. Zurich Am. Ins. Co., 642 S.W.3d 551, 557 (Tex. 2022). “When construing a statute, our primary objective is to determine the [l]egislature's intent which, when possible, we discern from the plain meaning of the words chosen.” Id. (quoting In re Estate of Nash, 220 S.W.3d 914, 917 (Tex. 2007)). “We use definitions prescribed by the [l]egislature and any technical or particular meaning the words have acquired ․” Id. (quoting City of Rockwall v. Hughes, 246 S.W.3d 621, 625–26) (Tex. 2008).

B. Texas Government Code Section 311.034

The legislature amended Texas Government Code section 311.034 in 2005 to provide that “[s]tatutory prerequisites to a suit, including the provision of notice, are jurisdictional requirements in all suits against a governmental entity.” Tex. Gov't Code § 311.034; see Chatha, 381 S.W.3d at 511 (citing Tex. Gov't Code § 311.034).

In Prairie View A&M University v. Chatha, the Texas Supreme Court interpreted the term “statutory prerequisite” in section 311.034 as having “three components.” 381 S.W.3d at 511. The Supreme Court explained:

First, it is of obvious mention that in order to fall within the ambit of section 311.034, a prerequisite must be found in the relevant statutory language. Second, the prerequisite must be a requirement. And finally, the term “pre” indicates the requirement must be met before the lawsuit is filed.

Id. at 511–12 (footnote omitted) (citations omitted). Applying these principles, the Supreme Court concluded that the 180–day filing deadline in Texas Labor Code section 21.202 is a statutory prerequisite to suit as contemplated by section 311.034. See id. at 513–14.

The Supreme Court recently clarified what is required under Chatha's third prong in Texas State University v. Tanner. See 689 S.W.3d 292, 300 (Tex. 2024). In Tanner, the Supreme Court held that the TTCA's statute of limitations, including its requirement of timely service, is jurisdictional in suits against governmental entities. Id. at 300, 302; see also Tex. Civ. Prac. & Rem. Code § 16.003(a). The Supreme Court explained that its use of the phrase “before the lawsuit is filed” in Chatha was “not inaccurate, but it was incomplete” because the decision in Chatha did not turn on the distinction between “bringing” and “filing” suit. Id. at 300 (citing Chatha, 381 S.W.3d at 512) (emphasis in original). Because the TTCA's statute of limitations provision used the phrase “bring suit,” the Supreme Court explained that the use of “bring suit” was now the “touchstone” of the court's analysis. Id. The Supreme Court concluded that “while service follows filing, both are prerequisites to ‘bringing’ the suit” and the “suit is not ‘brought,’ and the statute of limitations is not satisfied, until the plaintiff achieves both steps.” Id. (emphasis in original).

In Tanner, the Supreme Court rejected the argument that the statute of limitations was not jurisdictional because it had never been viewed as jurisdictional and had always been treated as an affirmative defense to a common law claim. See id. at 302. The Supreme Court reasoned that, while the statute of limitations did not implicate jurisdiction in “ordinary litigation,” that principle ceased to apply to litigation involving the government upon the enactment of section 311.034. Id. The Supreme Court reasoned that section 311.034 transformed an “ordinary statute of limitations into a jurisdictional bar.” Id.

C. Texas Civil Practice and Remedies Code Section 101.102(a)

Texas Civil Practice and Remedies Code section 101.102, entitled “Commencement of Suit,” provides in part: “A suit under this chapter shall be brought in state court in the county in which the cause of action or a part of the cause of action arises.” Tex. Civ. Prac. & Rem. Code § 101.102(a). The Texas Supreme Court has not addressed whether section 101.102(a) is a statutory prerequisite within the meaning of section 311.034, and it is an issue of first impression for this court.

Only one of our sister courts has considered this question. See Pioneer Nat. Res. USA, Inc. v. Tex. Dep't of Transp., No. 05-17-01245-CV, 2018 WL 3490891, at *2 (Tex. App.—Dallas July 20, 2018, no pet.). In Pioneer Natural Resources USA, Inc. v. Texas Department of Transportation, the Fifth Court of Appeals declined to hold that compliance with section 101.102(a) was a jurisdictional requirement under section 311.034. See id. In that case, the survivors of a decedent in a fatal motor vehicle collision filed suit in Dallas County against business entities that they alleged owned a tractor trailer involved in the collision. Id. at *1. One company filed a third-party petition in Dallas County against TXDOT, alleging TXDOT had breached its duties regarding the maintenance of the road and the provision of warnings about dangerous road conditions. Id.

TXDOT filed a motion to dismiss the company's third-party petition for want of jurisdiction, arguing that section 101.102(a)’s venue requirement was jurisdictional, and that because the crash occurred in a different county, the Dallas County trial court lacked jurisdiction. See id. The company argued in response that the main action between the plaintiffs and defendants established venue, not third-party actions, and that the venue provision for third-party claims in Texas Civil Practice and Remedies Code section 15.062(a) controlled venue selection in the case. See id. at *2. The trial court dismissed TXDOT from the suit without prejudice. Id. The company appealed. Id.

The Fifth Court noted TXDOT's concession that no court had yet decided if section 101.102(a) is a statutory prerequisite to suit under the amended version of section 311.034, then “decline[d] to apply section 311.034’s provisions to make compliance with section 101.102(a) a jurisdictional requirement.” Id. (citing Tex. Civ. Prac. & Rem. Code § 101.102(a); Tex. Gov't Code § 311.034). The Fifth Court cited Chatha and listed the three Chatha factors; however, it did not discuss how those factors applied to section 101.102(a). Id. The Fifth Court concluded that the third-party venue provision in Texas Civil Practice and Remedies Code section 15.062(a) controlled over other mandatory venue provisions and held that the trial court erred in dismissing the company's claims against TXDOT under section 101.102(a). Id. at *3 (citing Perryman v. Spartan Tex. Six Capital Partners, Ltd., 546 S.W.3d 110, 130–33 (Tex. 2018)).

D. Application of Section 311.034 to Other Mandatory Venue Provisions

In Six Bros. Concrete Pumping, LLC v. Texas Workforce Commission, the First Court of Appeals applied section 311.034 to an analogous mandatory venue provision and held that the venue provision was jurisdictional because it was a statutory prerequisite to suit against a governmental entity. See 679 S.W.3d 746, 753 (Tex. App.—Houston [1st Dist.] 2023, pet. denied). In that case, an employer challenged the Texas Workforce Commission's finding that it owed a former employee unpaid wages by filing suit against the employee and the commission in Harris County. Id. at 748. The commission filed a plea to the jurisdiction, arguing that Texas Labor Code section 61.062(d) imposed mandatory venue in the county where the employee resided, which was Montgomery County, and that because the mandatory venue requirement had not been satisfied, the trial court lacked jurisdiction to hear the case. Id. The employer argued that the mandatory venue requirement was not jurisdictional, and that the commission waived its objection to improper venue by answering without objecting to the venue. Id. The trial court granted the commission's plea to the jurisdiction and dismissed the case. Id. The employer appealed. Id.

On appeal, the First Court acknowledged that venue is generally not jurisdictional and that even mandatory requirements can be waived “if not challenged in due order and on a timely basis.” Id. at 750 (quoting Gordon v. Jones, 196 S.W.3d 376, 383 (Tex. App.—Houston [1st Dist.] 2006, no pet.)). However, it explained that the specific issue before it was “whether the legislature's enactment of the final sentence of [s]ection 311.034 of the Government Code makes a mandatory venue requirement a jurisdictional requirement in suits against a governmental entity.” Id. at 753 (emphasis in original). Concluding that the cases cited by the parties did not squarely answer the question before it, the First Court turned to the Supreme Court's analysis in Chatha. See id. at 751.

Applying Chatha, the First Court concluded the first two Chatha factors were easily satisfied because the venue requirement was found in the relevant statute and required by it. Id. In its analysis of the third factor—whether the requirement must be met before suit is filed ¹ —the First Court noted that the term “must” in a statute creates a condition precedent. See id. at 751 (citing City of Madisonville v. Sims, 620 S.W.3d 375, 379 (Tex. 2020) (per curiam); Tex. Gov't Code § 311.016(3)). The First Court reasoned that, because section 61.062(d) provided that a suit “must” be filed in the county of the claimant's residence, it created a condition precedent to suit, and the condition precedent was a statutory prerequisite and thus jurisdictional in suits against a governmental entity. See id. at 752 (emphasis in original).

II. Application

TXDOT argues section 101.102(a) satisfies all three Chatha factors and thus constitutes a statutory prerequisite to suit that is jurisdictional in suits against governmental entities. Callaway argues section 101.102(a) fails to satisfy the last two Chatha factors and thus is not a statutory prerequisite to suit.

We acknowledge that the Fifth Court has declined to hold that section 311.034 makes compliance with section 101.102(a) a jurisdictional requirement. See Pioneer, 2018 WL 3490891, at *2. However, we decline to follow that decision because the First Court's analysis in Six Bros. more closely aligns with the Texas Supreme Court's analysis in Tanner. Compare Tanner, 689 S.W.3d at 300 (analyzing whether the statute in question met each Chatha factor), and Six Bros., 679 S.W.3d at 751 (analyzing whether the statute in question met each Chatha factor), with Pioneer, 2018 WL 3490891, at *2 (citing Chatha but declining to engage in a full analysis of the Chatha factors). Applying the three Chatha factors to section 101.102(a), we conclude that section 101.102(a) satisfies all three factors and is a jurisdictional prerequisite to suits against governmental entities. See Chatha, 381 S.W.3d at 511–12.

A. Factors One and Two

Under the first Chatha factor, “a prerequisite must be found in the relevant statutory language,” and under the second factor, “the prerequisite must be a requirement.” See id. at 512. The first two Chatha factors are easily satisfied here, just as they were in Six Bros. See 679 S.W.3d at 751. Section 101.102(a) is found in the statute that provides the limited waiver of sovereign immunity.² See Tex. Civ. Prac. & Rem. Code § 101.102(a). And section 101.102(a), which states that a suit “shall be brought” in the specified venue, is a mandatory venue provision. Id.; see In re Tex. Dep't of Transp., 218 S.W.3d 74, 76 (Tex. 2007) (per curiam) (“Section 101.102(a) is ․ a mandatory provision. It requires claims made pursuant to the TTCA to be brought in the county in which all or a part of the cause of action arose.”); see also Tex. Gov't Code § 311.016(2) (“ ‘Shall’ imposes a duty.”).

Despite repeatedly referring to section 101.102(a) as a “mandatory venue provision,” Callaway argues that section 101.102(a) is “not actually ‘mandatory’ in the context of the Chatha analysis.” He fails to explain how the Chatha analysis alters the context in which we construe section 101.102(a). Callaway appears to argue section 101.102(a) is merely “directory” rather than mandatory because it is a provision “included for the purpose of promoting the proper, orderly and prompt conduct of business.” We are unpersuaded by this argument because it ignores the plain language of the statute ³ and fails to account for how strictly Texas courts construe waivers of sovereign immunity.

It is generally true that provisions “included for the purpose of promoting the proper, orderly and prompt conduct of business, are not generally regarded as mandatory.” Chisholm v. Bewley Mills, 155 Tex. 400, 287 S.W.2d 943, 945 (1956). However, in the specific context of waivers of sovereign immunity, we are tasked with strictly construing such provisions in favor of retention of immunity. See Chatha, 381 S.W.3d at 513 (citing Wichita Falls State Hosp. v. Taylor, 106 S.W.3d 692, 696 (Tex. 2003)). None of the cases Callaway relies on for this argument analyze section 101.102(a), and only one touches on the issue of sovereign immunity. See AC Interests, L.P. v. Tex. Comm'n on Envtl. Quality, 543 S.W.3d 703, 715 (Tex. 2018) (presuming that the legislature intended the service requirement in Texas Health and Safety Code section 382.032(c) to be directory rather than mandatory). That solitary case is distinguishable because the parties conceded that the statutory provision at issue was not jurisdictional. See id. at 708. Based on the plain language of section 101.102(a) and the context in which it occurs, we conclude section 101.102(a) imposes a mandatory duty. As such, it satisfies the second Chatha factor.

B. Factor Three

Under the third Chatha factor, as clarified by Tanner, a prerequisite is a requirement that must be met before a suit is brought. See Tanner, 689 S.W.3d at 300. The title of section 101.102 is “Commencement of Suit,” and section 101.102(a) states that a “suit under this chapter shall be brought in state court in the county in which the cause of action or a part of the cause of action arises.” Tex. Civ. Prac. & Rem. Code § 101.102 (emphasis added). A plaintiff's initial venue selection is fixed at the time of filing, and a plaintiff must necessarily choose venue prior to filing in order to determine where the suit will be filed. See generally In re Masonite Corp., 997 S.W.2d 194, 197 (Tex. 1999) (orig. proceeding) (explaining that a plaintiff fixes venue “by filing the suit”). Furthermore, in section 101.102(a) the legislature provided instructions regarding the specific venue in which TTCA suits shall be brought. See Tex. Gov't Code § 101.102(a). Just as a suit cannot be “brought” under the TTCA without compliance with its statute of limitations provision, a suit cannot be “brought” under the TTCA without compliance with its mandatory venue provision. See Tanner, 689 S.W.3d at 300; see also Six Bros., 679 S.W.3d at 753. We conclude that section 101.102(a) requires that a plaintiff file suit in the correct venue before the suit is “brought,” and thus satisfies Chatha's third factor.

We are unpersuaded by Callaway's argument that section 101.102(a) does not satisfy the third Chatha factor because venue selection is neither an affirmative act nor a component of bringing suit. Callaway offers no authority to support these contentions, nor have we found any. A choice is an act. See Choice, Webster's Third New International Dictionary 395 (2002) (defining “choice” as “the voluntary and purposive or deliberative action of picking, singling out, or selecting from two or more that which is favored or superior”). And as already discussed, choosing venue is a prerequisite to bringing suit. See generally Masonite Corp., 997 S.W.2d at 197.

C. Callaway's Remaining Arguments

Callaway more generally argues that section 101.102(a) is not a statutory prerequisite because: 1) venue can be waived; 2) venue selection is purely procedural; and 3) construing section 101.102(a) as a statutory prerequisite would exempt governmental entities from having to comply with the due order of pleadings. He also argues dismissal is an improper remedy for noncompliance with section 101.102(a).

Waiver of venue. While it is generally true that venue can be waived, the pertinent question here, as in Six Bros., is whether the legislature's enactment of the final sentence of section 311.034 makes a mandatory venue requirement a jurisdictional requirement in suits against a governmental entity. See Six Bros., 679 S.W.3d at 750, 753. The only case Callaway relies on that even arguably addresses this issue ⁴ acknowledges in a footnote that the “general rule” that venue is not jurisdictional “necessarily excludes instances in which the [l]egislature has enacted specific, jurisdictional venue provisions for suits against the [s]tate that trigger governmental immunity considerations.” Gordon, 196 S.W.3d at 383 n.5 (citing Tex. Gov't Code § 311.034). Section 101.102(a) is one such exception to the general rule. See generally id. Because compliance with section 101.102(a) is a jurisdictional requirement under section 311.034, it cannot be waived. See Tex. Assoc. Bus. v. Tex. Air Control Board, 852 S.W.2d 440, 445 (Tex. 1993) (“Subject matter jurisdiction is never presumed and cannot be waived.”).

Procedural requirements. Callaway's argument that venue cannot be jurisdictional because it “is purely procedural” ignores the Supreme Court's discussion of this very issue in Tanner. The Supreme Court previously stated in Chatha 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.” Chatha, 381 S.W.3d at 515. In Tanner, the Supreme Court explained that, while this statement may have been dicta in Chatha, it's later holding in City of Madisonville v. Sims confirmed the statement's accuracy. See Tanner, 689 S.W.3d at 301 (citing City of Madisonville, 620 S.W.3d at 380 (holding timely filing of suit was a statutory prerequisite under § 311.034)). Thus, a statutory prerequisite to suit under section 311.034 may be procedural. See id. at 300–01.

Due order of pleadings. Callaway argues that construing section 101.102(a) as a statutory prerequisite exempts governmental entities from having to comply with the due order of pleadings specified in Texas Rule of Civil Procedure 85. See Tex. R. Civ. P. 85. He notes that Texas Rule of Civil Procedure 86 states that an “objection to improper venue is waived if not made by written motion filed prior to or concurrently with any other plea, pleading or motion except a special appearance motion.” Tex. R. Civ. P. 86. However, subject-matter jurisdiction cannot be waived, and section 311.034 makes statutory prerequisites jurisdictional in suits against governmental entities. See Tex. Gov't Code § 311.034; Tex. Ass'n of Bus., 852 S.W.2d at 445. To the extent Texas Rule of Civil Procedure 86 may conflict with section 311.034, the statute prevails over the rule. See Jackson v. State Office of Admin. Hearings, 351 S.W.3d 290, 298 (Tex. 2011).

Appropriate disposition. Lastly, Callaway cites no authority to support his contention that dismissal is an improper remedy for failure to comply with section 101.102(a). When a court lacks subject-matter jurisdiction, the appropriate disposition is dismissal. See Chatha, 381 S.W.3d at 516; Miranda, 133 S.W.3d at 234; Six Bros., 679 S.W.3d at 754.

D. Section 101.102(a) is a Statutory Prerequisite

We conclude the venue provision in section 101.102(a) satisfies all three factors described in Chatha and is a statutory prerequisite to suit. See Tanner, 689 S.W.3d at 300–02; Chatha, 381 S.W.3d at 511–12; Six Bros., 679 S.W.3d at 751–54. A suit brought pursuant to section 101.102 is necessarily a suit against a governmental entity because the pleadings “must name as defendant the governmental unit against which liability is to be established.” Tex. Civ. Prac. & Rem. Code § 101.102(b). We accordingly hold that section 101.102(a) is a jurisdictional requirement in suits against governmental entities. See Tex. Gov't Code § 311.034.

E. The Trial Court Erred in Denying TXDOT's Plea to the Jurisdiction

Having determined that section 101.102(a) is a jurisdictional requirement, we now analyze whether the trial court erred in denying TXDOT's plea to the jurisdiction. Section 101.102(a) requires that a suit be brought “in the county in which the cause of action or a part of the cause of action arises.” Tex. Civ. Prac. & Rem. Code § 101.102(a).

Callaway's pleadings allege TXDOT breached its duty to use reasonable care with the maintenance and care of the road where the crash occurred, as well as its duty to adequately warn of unsafe conditions. In his responses to TXDOT's motion to transfer venue and plea to the jurisdiction, Callaway argued venue was proper in Harris County under Texas Civil Practice and Remedies Code section 15.002(a) because Harris County was the principal place of business for the construction company that performed the allegedly defective roadway repairs, the company made decisions concerning the defective construction in Harris County, Callaway resided in Harris County, and the crash report stated the crash occurred in Harris County.⁵ Thus, the only arguable basis Callaway has alleged for venue in Harris County as to TXDOT is the location of the crash.

The parties have never disputed the address where the crash occurred, rather, they disagreed as to the county in which that address was located. The trial court found in its order denying TXDOT's motion to transfer venue that the accident occurred in Chambers County. Neither party challenges that finding. Callaway states in his briefing to this court that it was “discovered that the wreck actually occurred in Chambers County.”

Because the crash occurred in Chambers County, and Callaway does not allege TXDOT engaged in other actions that gave rise to his suit in Harris County, we conclude venue was not proper as to TXDOT in Harris County under section 101.102(a). See Tex. Civ. Prac. & Rem. Code § 101.102(a). Because Callaway failed to comply with section 101.102(a), we hold that the Harris County trial court lacked subject-matter jurisdiction over Callaway's claims against TXDOT. We sustain TXDOT's only issue.

Conclusion

Having sustained TXDOT's only issue on appeal, we reverse the trial court's order denying TXDOT's plea to the jurisdiction and render judgment dismissing Callaway's claims for lack of subject-matter jurisdiction.

FOOTNOTES

1.   When the First Court issued Six Bros. in 2023, it did not have the benefit of consulting the Supreme Court's 2024 opinion in Tanner where the Supreme Court clarified that, under Chatha's third factor, the full analysis is whether a requirement is a prerequisite to bringing suit. See Tanner, 689 S.W.3d at 300; Six Bros., 679 S.W.3d at 751. But as the Supreme Court explained in Tanner, filing is a prerequisite to bringing suit, and thus something which is a prerequisite to filing is also necessarily a prerequisite to bringing suit. See Tanner, 689 S.W.3d at 300. Thus, Six Bros. analysis, despite its focus on filing rather than bringing suit, is still instructive. See generally id.

2.   We note that in Tanner the Supreme Court explained a statutory prerequisite need not be found in the statute that directly waives immunity. Tanner, 689 S.W.3d at 301–02 (“ ‘Relevant statutory language’ means the text of a statute—any statute—that dictates a pre-suit requirement that applies to a given case.”).

3.   Callaway mistakenly asserts that section 101.102(a) uses the word “must,” when in fact it uses the word “shall.” See Tex. Civ. Prac. & Rem. Code § 101.102(a).

4.   Callaway also directs our attention to Scott v. Wichita County., a case in which the First Court held that a county waived a mandatory venue provision. 248 S.W.3d 324, 326 (Tex. App.—Houston [1st Dist.] 2007, no pet.). Scott does not address section 311.034 or discuss the concept of sovereign immunity, and it contains a clarifying footnote stating that “there are limited situations where jurisdiction is tied to venue.” Id. at 326 n.1. However, to the extent the First Court's opinion in Scott may conflict with the Supreme Court's interpretation of section 311.034 in Chatha and Tanner, and the First Court's later holding in Six Bros., we decline to follow it.

5.   Callaway argued before the trial court that, because he established proper venue as to the construction company in Harris County, venue was proper as to all defendants, including TXDOT, under Texas Civil Practice and Remedies Code section 15.005. However, Callaway does not reassert that argument before this court. Furthermore, Texas Civil Practice and Remedies Code section 15.016 provides that an “action governed by any other statute prescribing mandatory venue shall be brought in the county required by that statute.” Tex. Civ. Prac. & Rem. Code § 15.016. The Texas Supreme Court has explained that section 101.102(a) is a mandatory provision that controls over the general rules in chapter 15. See Tex. Dep't of Transp., 218 S.W.3d at 76 (“Section 15.016 provides that if an action is governed by a separate mandatory venue provision, then the action shall be brought in the county required by the separate venue provision. Section 101.102(a) is such a mandatory provision.”).

Ken Wise, Justice