No. 13-02-399-CVCourt of Appeals of Texas, Thirteenth District, Corpus Christi.
Opinion Delivered and Filed May 20, 2004.

On appeal from the 60th District Court of Jefferson County, Texas.

Before Chief Justice VALDEZ and Justices HINOJOSA and CASTILLO.

Opinion by Chief Justice VALDEZ.

Appellant, 11th Street Bingo Association, appeals a jury verdict rendered against it for unpaid wages. The dispositive issue in this appeal is whether the trial court had jurisdiction over appellee Penni Simonson’s action for debt for the association’s failure to pay her wages. Because we find that the trial court did not have jurisdiction over Simonson’s claims, we dismiss.

Factual and Procedural Background
11th Street Bingo Association (“association”) was formed in 1997 with the help of several people involved with the local American Legion. Simonson helped establish the association and performed bookkeeping services for the association from 1997 to 1999. On May 13, 1999, John Rodriguez, the president of the association, was removed from his position as president. On that same day, Simonson tendered her resignation to the vice president of the association:

This letter is to inform you that effective immediately I no longer volunteer my time in assistance of the association. I have been donating my time since the inception of the association. Due to the recent circumstances involving the association, I will no longer provide these services. I regret any inconvenience this [may] cause the association, but I feel I must resign at this time.

Simonson subsequently contacted the association and asked for payment for her bookkeeping services on the ground that Rodriguez had told her the association would compensate her when the association was financially able to pay employees. The association refused to pay Simonson as requested.

On May 15, 2000, Simonson filed a claim for wages under the Texas Payday Act. See generally TEX. LAB. CODE ANN. § 61.001-.095 (Vernon 1996 Supp. 2004) (Texas Payday Act); see TEX. LAB. CODE ANN. § 61.051
(Vernon 1996) (employee who is not paid wages as prescribed by chapter sixty-one may file a wage claim with the commission). On June 14, 2000, the Texas Workforce Commission issued a preliminary wage determination order finding that Simonson was a volunteer, rather than an employee, and was thus not entitled to wages. See TEX. LAB. CODE ANN. § 61.052 (Vernon 1996) (commission to investigate and issue preliminary wage determination order dismissing or ordering payment of wages).

Simonson requested a hearing to contest the commission’s preliminary wage determination order. See TEX. LAB. CODE ANN. § 61.054 (Vernon 1996). On August 31, 2000, the commission held a hearing and determined that Simonson had not timely filed her claim for wages. See TEX. LAB. CODE ANN. § 61.051(c) (Vernon 1996) (a wage claim must be filed not later than the 180th day after the date the wages claimed became due for payment). In its decision, the commission concluded that it did not “have jurisdiction over the wages in question and the wage claim will be dismissed” and rendered its decision that the “determination order issued June 14, 2000, is affirmed.” See TEX. LAB. CODE ANN. § 61.059 (Vernon 1996) (commission may modify, affirm, or rescind preliminary wage determination).

Simonson filed suit against the association in district court on November 1, 2000, sixty-one days after the commission’s determination. The case was submitted to the jury regarding whether an oral agreement existed between appellant and Simonson concerning Simonson’s claim for wages for performing bookkeeping services. The jury returned a verdict in Simonson’s favor and this appeal ensued. Although appellant raises ten issues on appeal, we must first determine whether the trial court had jurisdiction over the cause. See Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 443 (Tex. 1993).

Standard of Review
A trial court must have subject matter jurisdiction over a cause in order to have the authority to resolve the controversy. Garcia-Marroquin v. Nueces County Bail Bd., 1 S.W.3d 366, 373 (Tex. App.-Corpus Christi 1999, no pet.). Subject matter jurisdiction may not be presumed or waived. Nueces County v. Ferguson, 97 S.W.3d 205, 213 (Tex. App.-Corpus Christi 2002, no pet.); City of Mission v. Cantu, 89 S.W.3d 795, 800 (Tex. App.-Corpus Christi 2002, no pet.); Garcia-Marroquin, 1 S.W.3d at 373. A trial court’s lack of subject matter jurisdiction constitutes fundamental error. Garcia-Marroquin, 1 S.W.3d at 373. An appellate court reviews de novo whether a trial court has subject matter jurisdiction Nueces County, 97 S.W.3d at 213; City of Mission, 89 S.W.3d at 800 Garcia-Marroquin, 1 S.W.3d at 373.

Applicable Law
Claimants can seek relief for unpaid wages through the administrative processes provided in the Texas Payday Act. The objective of the Texas Payday Act is to deter employers from withholding wages by providing wage claimants an avenue for the enforcement of wage claims, many of which would be too small to justify the expense of a civil lawsuit. Wal-Mart Stores, Inc. v. Lopez, 93 S.W.3d 548, 561 (Tex. App.-Houston [14th Dist.] 2002, no pet.) (citing Holmans v. Transource Polymers, Inc., 914 S.W.2d 189, 192 (Tex. App.-Fort Worth 1995, writ denied)). After commencing a claim under the Act, a claimant must exhaust all administrative remedies before seeking relief in the trial court. See
TEX. LAB. CODE ANN. § 61.062(a) (Vernon 1996). Otherwise, the trial court lacks jurisdiction to hear the claim. See Holmans, 914 S.W.2d at 191-92.

In the instant case, Simonson initiated administrative proceedings under the Payday Act, but failed to exhaust her administrative remedies under the statute when she did not timely and properly seek judicial review of the comission’s decision. See TEX. LAB. CODE ANN. § 61.062(a) (Vernon 1996) (party who has exhausted its administrative remedies under this chapter may bring suit to appeal). The Payday Act requires that suit be brought to appeal the commission’s order not later than the thirtieth day after the date the final order is mailed. See id. at § 61.062(b). In the instant case, Simonson filed suit more than sixty days after the date the commission’s final order was mailed. Thus, since Simonson failed to pursue her administrative claim, the trial court did not have jurisdiction to consider her complaint. Holmans, 914 S.W.2d at 191.

Nonetheless, Simonson claims that the Texas Payday Act does not preempt her common law causes of action. We agree. The Payday Act is not an employee’s sole and exclusive remedy for a claim based on past wages, but is rather an alternative remedy that is cumulative of the common law. See Bennett v. Cash Am. Int’l, Inc., 982 S.W.2d 620, 622 (Tex. App.-Houston [1st Dist.] 1998), aff’d, 35 S.W.3d 12 (Tex. 2000); Holmans, 914 S.W.2d at 192-93. However, by initiating and proceeding with her administrative remedies under the statute, Simonson chose to forego her common-law causes of action and elected the alternative remedy provided by statute:

[W]e can only conclude the legislature intended the Payday Law to be cumulative of the common law and stand as an alternative remedy a wage claimant may seek. Should a claimant choose to file a claim under the statute, utilize its remedial scheme, and appeal the final administrative order, then the claimant is properly required to abide by the statute’s provisions. We do not, however, construe the Payday Law as preempting a claimant, such as appellant, from choosing to pursue his claim as a common-law action in the courts of this state. A claimant will ultimately have to choose which remedy to accept. . . .

Holmans, 914 S.W.2d at 193-94. A party may not initially elect one remedy and then choose the other remedy when dissatisfied with the first result. See id. at 194. Had Simonson wanted to pursue her common-law remedies, she was required to withdraw her claim with the Texas Workforce Commission before the commission’s decision became final. See id.

Simonson argues that an unsuccessful attempt at obtaining relief through the Texas Workforce Commission is equivalent to not pursuing an administrative remedy. We disagree. If Simonson’s argument prevailed, then a party would be able to pursue both an administrative remedy and a common law remedy as long as one pursuit was unsuccessful. However, the law allows a choice between the two remedies but prohibits pursuing both actions. See id. at 193-94.

A party’s failure to exhaust its administrative remedies deprives the trial court of jurisdiction. Webb County Appraisal Dist. v. New Laredo Hotel, 792 S.W.2d 952, 954-955 (Tex. 1990); Gibbud v. Moron, 972 S.W.2d 797, 800 (Tex. App.-Corpus Christi 1998, pet. denied). We conclude that because Simonson failed to timely appeal the commission’s decision, the trial court lacked jurisdiction over her claims. Simonson submitted only her claim for wages to the jury; therefore, we need not consider the extent to which any of her additional common-law causes of action might have been preempted by recourse to the statute.

If the trial court lacks jurisdiction, then an appellate court only has jurisdiction to set the judgment aside and dismiss the cause. Dallas County Appraisal Dist. v. Funds Recovery, 887 S.W.2d 465, 468 (Tex. App.-Dallas 1994, writ denied); see Nabejas v. Tex. Dep’t of Pub. Safety, 972 S.W.2d 875, 876 (Tex. App.-Corpus Christi 1998, no pet.). Accordingly, we set aside the judgment of the trial court and dismiss this appeal. See Dallas County Appraisal Dist., 887 S.W.2d at 468.

Dissenting Memorandum Opinion by Justice CASTILLO.

I respectfully dissent. I agree with the majority that our initial inquiry is always whether we have jurisdiction over an appeal. Garcia v. Comm’rs Court of Cameron County, 101 S.W.3d 778, 779 (Tex. App.-Corpus Christi 2003, no pet.) (citing Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 443 (Tex. 1993)). We are obligated to determine, sua sponte, our own jurisdiction. Garcia, 101 S.W.3d at 779 (citing N.Y. Underwriters Ins. Co. v. Sanchez, 799 S.W.2d 677, 678 (Tex. 1990) (per curiam)). Jurisdiction of a court is never presumed. Garcia, 101 S.W.3d at 783. Because the question of jurisdiction is a legal question, we follow the de novo standard of review. Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex. 1998). If the record does not affirmatively demonstrate our jurisdiction, we must dismiss the appeal. Id. Thus, in analyzing de novo the claims brought by Simonson in this case, I reach a different result.

As the majority notes, the Texas Workforce Commission concluded it did not have jurisdiction over the wages in question and dismissed the wage claim. The commission decision stated:

Since the claimant is claiming wages that would have been due for payment prior to November 17, 1999, the wages in question are not within the jurisdiction of the Texas Workforce Commission for the purposes of this wage claim. Therefore, the Texas Workforce Commission does not have jurisdiction over the wages in question and the wage claim will be dismissed.

The election-of-remedies doctrine may bar relief when (1) one successfully exercises an informed choice (2) between two or more remedies, rights, or states of facts (3) which are so inconsistent as to (4) constitute manifest injustice. Medina v. Herrera, 927 S.W.2d 597, 600 (Tex. 1996); Harrison v. Gemdrill Int’l, Inc., 981 S.W.2d 714, 718 (Tex. App.-Houston [1st Dist.] 1998, pet. denied). Here, Simonson made no such informed choice; the commission held that it did not have jurisdiction over Simonson’s wage claim. Accordingly, it would have been impossible for her to obtain an inconsistent remedy in district court. See Harrison, 981 S.W.2d at 718. Thus, the doctrine of election of remedies does not apply to this case. Id. Respectfully, I would hold that we have jurisdiction.