Chapter § 4-72 § 21.252. Notice of Complainant's Right to File Civil Action

• Jurisdiction: United States

4-72 § 21.252. Notice of Complainant's Right to File Civil Action

(a) A complainant who receives notice under Section 21.208 that the complaint is not dismissed or resolved is entitled to request from the commission a written notice of the complainant's right to file a civil action.

(b) The complainant must request the notice in writing.

(c) The executive director may issue the notice.

(d) Failure to issue the notice of a complainant's right to file a civil action does not affect the complainant's right under this subchapter to bring a civil action against the respondent.

4-72:1 Commentary

4-72:1.1 Right-to-Sue Notice

An issue that arises is whether the putative plaintiff must have actually received a Right-to-Sue Notice from the TWC prior to filing suit. Employers sometimes argue that if the plaintiff's petition does not attach a Right-to-Sue Notice, then the lawsuit is premature and thus subject to dismissal. It is not.

• Wiltshire v. Humpal Physical Therapy, No. 13-04-310-CV, 2005 Tex. App. LEXIS 7150 (Tex. App.—Corpus Christi Aug. 31, 2005, no pet.) (possession of a right-to-sue letter from the state administrative agency is not needed for an individual to file suit).
• City of Houston v. Fletcher, 63 S.W.2d 920 (Tex. App.—Houston [14th Dist.] 2002) (notice of dismissal by administrative agency is sufficient to empower individual to bring TCHRA suit; potential plaintiff need not wait upon receipt of a piece of paper that says "Right to Sue").

The Fifth Circuit has resolved this issue: is failure to receive a right-to-sue letter a jurisdictional defect, which cannot be excused, or merely a condition precedent, which can be excused.

• Gorman v. Verizon Wireless Tex., L.L.C., 753 F.3d 165 (5th Cir. 2014) (holding that Texas Supreme Court decision in In re United Servs. Auto. Ass'n, 307 S.W.3d 299 (Tex. 2010), compels conclusion that failure to receive is not a jurisdictional defect and thus not a basis for

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