IN THE SUPREME = COURT OF TEXAS

IN THE SUPREME COURT OF TEXAS

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No. 04-0931

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Saleh W. Igal, Petitioner,

Brightstar Information = Technology=20 Group, Inc. and BRBA, Inc., Respondents

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On Petition for Review from = the

Court of Appeals for the Eleventh = District of=20 Texas

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Argued January 25,=20 2006

=20 Justice=20 Wainwright = delivered the=20 opinion of the Court as to Parts I, II, III, IVA, IVB2, and V, in which = Justice Green, Justice Johnson, = Justice=20 Willett, and Justice=20 McCoy *=20 joined, and an opinion as to Part IVB1, in which Justice Green, Justice = Johnson, and=20 Justice Willett joined.

=20 Justice = Brister=20 filed a dissenting opinion, in which Chief Justice Jefferson, Justice=20 O=92Neill, and Justice=20 Medina = joined.

=20 In 1989, the Legislature amended the Texas Payday Law to create = an=20 administrative procedure for a claimant to file a wage claim with the = Texas=20 Workforce Commission (TWC). In this case, we consider for the first time = whether=20 TWC=92s final adjudication denying recovery = of wages=20 precludes the subsequent filing of a common law wage claim for the same = wages in=20 state court. We hold that when a claimant pursues a wage claim to a = final=20 adjudication before TWC, res judicata bars the claimant from later filing a = lawsuit for=20 the same damages in a Texas court of law.

I. Factual and Procedural Background

=20 In 1989, Saleh Igal=20 began working for BRBA, Inc. In April 1998, Igal=20 executed an employment agreement with BRBA. Prior to the execution of = the=20 employment agreement, Brightstar Information = Technology Group, Inc. acquired BRBA and assumed BRBA=92s obligations under the agreement. Igal alleges that Brightstar then=20 terminated his employment without cause on January 19, 2000, entitling = him to=20 post-termination salary. Eighteen months later, on July 17, 2001, Igal filed a wage claim with TWC, asserting a = violation of=20 his employment agreement and claiming unpaid wages, bonuses, and = benefits from=20 May 2000 to January 2001. A TWC hearing officer dismissed his claim in a = preliminary wage determination order. On October 5, 2001, Igal requested a hearing on that determination. On = November=20 27, 2001, December 27, 2001, and February 14, 2002, a TWC appeals = tribunal=20 conducted hearings on Igal=92s appeal, = including legal=20 argument and witnesses for both sides. On February 19, 2002, TWC issued = its=20 decision, concluding that Igal=92s claim = failed on the=20 merits and that TWC lacked jurisdiction because Igal=20 filed his claim more than 180 days after his wages became due for = payment. TWC=20 notified the parties that the decision would become final fourteen days = after=20 its issuance unless one of the parties filed a motion for rehearing or = sought=20 judicial review of its decision.

=20 In lieu of filing a motion for rehearing with TWC or seeking = judicial=20 review of TWC=92s decision, Igal sued Brightstar = and BRBA in a=20 Texas district=20 court for breach of contract and declaratory judgment. Brightstar and BRBA moved for summary judgment, = arguing that=20 TWC=92s final decision barred Igal=92s claims through res judicata, or alternatively, that Igal failed to exhaust his administrative = remedies. The=20 trial court granted the motion for summary judgment, holding that res judicata barred = Igal=92s claims. The court of appeals affirmed the = trial=20 court, holding that TWC had jurisdiction over Igal=92s=20 claims because the 180-day filing limitations period was not = jurisdictional and=20 that res judicata barred=20 Igal=92s breach of contract claims. 140 S.W.3d 820. We affirm the court of appeals and = hold that=20 the filing limitations period of Section 61.051, while mandatory, is not = jurisdictional and that res judicata attaches to TWC=92s final=20 administrative decision.

II. Payday Law

=20 In 1915, the Legislature enacted the first Texas Payday Law, = requiring=20 certain types of employers to promptly and regularly pay employees the = full=20 amount of wages due.[1] At present, it requires private = employers [2] of all types and sizes to pay = wages owed=20 to employees [3] in full, on time, and on = regularly=20 scheduled paydays. Tex. Lab. Code =A7 61.011. = Originally,=20 employees pursued unpaid wage claims in court, if at all. In 1989, the=20 Legislature authorized the Texas Employment Commission (now part of TWC) = to=20 receive and adjudicate complaints for failure to pay wages owed. Act of May 31, 1989, 71st Leg., R.S., ch.=20 1039, =A7 3.01, 1989 Tex. Gen. Laws 4172, 4213−16 (current version = at Tex. Lab. = Code =A7=A7=20 61.051−.067). This amendment gives employees = the option of=20 filing in court or with TWC to recover unpaid wages. Tex. Lab. = Code=20 =A7 61.051(a) (=93An employee who is not paid wages as prescribed by = this chapter=20 may file a wage claim with the commission.=94) (emphasis added). Although there are no statutory = limitations=20 on the amount a wage claimant may pursue at TWC, typically the claims = are too=20 small to justify a lawsuit.[4] According to TWC, it receives=20 approximately 20,000 wage claims per year for initial decision, and = about 18% of=20 those claims are appealed to TWC=92s appeals = tribunal=20 yearly.

=20 TWC=92s procedures are designed to = resolve claims=20 expeditiously and inexpensively, and it uses abbreviated mechanisms of = an=20 adversarial judicial process to adjudicate wage claims. For example, = TWC=92s rules provide for issuance and enforcement = of=20 subpoenas for witnesses and documents, representation by counsel, and = issuance=20 of decisions of TWC=92s appeals tribunals in = writing.=20 See 40 Tex. Admin. Code =A7=A7 815.18, = 821.45(c). The=20 Legislature has granted TWC broad authority to enforce its decisions. = See=20 Tex. Lab.=20 Code =A7=A7 = 61.019 (making the=20 failure to pay wages a felony), 61.020 (authorizing the attorney general = to seek=20 injunctive relief against repeat offenders), 61.081 (making a final TWC = order an=20 administrative lien on all of an employer=92s property), 61.091 = (granting TWC the=20 authority to levy the employer=92s bank account). = Aggrieved=20 parties may appeal the initial Commission preliminary wage determination = order=20 to a TWC appeals tribunal, and, after exhausting administrative = remedies, appeal=20 the Commission=92s final order to a court of competent jurisdiction. = Id. =A7=20 61.062(a).

III. Jurisdiction

=20 Res judicata does not=20 apply when the initial tribunal lacks subject matter jurisdiction over = the=20 claim. See Citizens Ins. Co. of Am. v. Daccach,=20 217 S.W.3d 430, 452−53 (Tex. 2007). Consequently, we = must first=20 address whether TWC had subject matter jurisdiction over Igal=92s claim.

=20 Igal argues that TWC dismissed his = claim=20 because it had no jurisdiction pursuant to section 61.051 of the Texas = Labor=20 Code. He maintains that the court of appeals erred by expanding TWC=92s jurisdiction beyond the Legislature=92s = intention, as=20 expressed in Section 61.051. Igal argues = that because=20 TWC lacked subject matter jurisdiction, TWC=92s decision=20 could not preclude his subsequent lawsuit.

=20 The Legislature establishes the jurisdiction of administrative = agencies.=20 Igal claims Subsection 61.051(c) limits = TWC=92s jurisdiction. Subsection 61.051(c) of the = Texas Labor=20 Code states that =93[a] wage claim must be filed not later than the = 180th day=20 after the date the wages claimed became due for payment.=94 Igal performed his last services for BRBA on = January 19,=20 2000. Two days later, Brightstar informed = him that his=20 work group had been discontinued, leaving him without a position at the = company.=20 Igal was paid through April 2000 but claimed = that=20 because Brightstar terminated him without = cause, he=20 was entitled to compensation under his contract through January 19, = 2001. He=20 filed his wage claim with TWC on July 17, 2001, seeking wages from May = 2000=20 through January 19, 2001. In its decision, TWC stated:

The=20 Commissions=92 jurisdiction extends back only 180 days from the filing = of the wage=20 claim. Any pay owed to the claimant would have been due well before the=20 beginning of the Commission=92s jurisdiction in this case. Therefore, = the wage=20 claim was not timely filed and is dismissed.

Before this=20 Court, Igal argues that he took TWC at its = word that=20 it did not have jurisdiction and therefore filed his wage claim in = district=20 court. He contends that the court of appeals expanded TWC=92s jurisdiction beyond the 180 days the = Legislature=20 intended.

=20 In support of his argument that the 180-day filing limitations = period is=20 a jurisdictional threshold, Igal cites = Texas=20 Employment Commission v. Ortiz. 574 S.W.2d 213, = 215 (Tex.=20 Civ. App.=97Corpus Christi 1978, no = writ). In=20 Ortiz, the court of appeals held that the twelve-day limit for = the=20 internal appeals to the administrative appeals tribunal of the = Commission was=20 jurisdictional. Id. However, the court in = Ortiz=20 did not interpret the statute at issue here.

=20 This Court has not directly addressed whether the filing = limitations=20 period in Subsection 61.051(c) is a jurisdictional threshold. In Mingus v. Wadley, we held that a = party suing=20 on a statutory cause of action must comply with all administrative=20 prerequisites, as a matter of jurisdiction. 285 S.W. = 1084,=20 1087 (Tex. 1926), overruled in = part by Dubai=20 Petroleum Co. v. Kazi, 12 S.W.3d 71 = (Tex. = 2000). =93The=20 general rule is that where the cause of action and remedy for its = enforcement=20 are derived not from the common law but from the statute, the statutory=20 provisions are mandatory and exclusive, and must be complied with in all = respects or the action is not maintainable.=94 Mingus, 285 S.W. at 1087. In Dubai = Petroleum=20 Co., we overruled Mingus = =93to the=20 extent that it characterized the plaintiff=92s failure to establish a = statutory=20 prerequisite as jurisdictional.=94 12 S.W.3d at = 76. Igal urges the Court to apply Mingus, not Dubai, and hold that a = plaintiff=92s=20 failure to meet a statutory prerequisite for a wage claim is = jurisdictional.=20 However, in Dubai, we discussed the = evolution of=20 this area of the law, noting that =93[a]lthough Mingus represented the dominant = approach when=20 it was decided, =91the modern direction of policy is to reduce the = vulnerability=20 of final judgments to attack on the ground that the tribunal lacked = subject=20 matter jurisdiction.=92=94 Id. (quoting Restatement (Second) of Judgments = =A7 11=20 cmt. e (1982)).[5]

=20 Even before Dubai, we explained that = =93just because a=20 statutory requirement is mandatory does not mean that compliance with it = is=20 jurisdictional.=94 Albertson=92s, Inc. v. = Sinclair, 984=20 S.W.2d 958, 961 (Tex. 1999). Later, in = University of=20 Texas Southwestern Medical Center v. Loutzenhiser,=20 we elaborated on this distinction, looking to legislative intent to = determine=20 whether a requirement is jurisdictional or merely mandatory:

The=20 failure of a non-jurisdictional requirement mandated by statute may = result in=20 the loss of a claim, but that failure must be timely asserted and = compliance can=20 be waived. The failure of a jurisdictional requirement deprives the = court of the=20 power to act (other than to determine that it has no jurisdiction), and = ever to=20 have acted, as a matter of law. Since the Legislature is bound to know = the=20 consequences of making a requirement jurisdictional, one must ask, in = trying to=20 determine legislative intent, whether the Legislature intended those=20 consequences.

140 S.W.3d 351, 359 (Tex. 2004), superseded by = statute,=20 Tex. Gov=92t = Code =A7 311.034. = Although the=20 Legislature subsequently provided that the notice requirement at issue = in Loutzenhiser was jurisdictional,[6] the Court=92s reasoning remains = valid.=20 Whether a filing requirement is jurisdictional is a question of = statutory=20 interpretation. Hence, we review the words of the statute.

=20 Section 61.051, entitled =93Filing Wage Claim,=94 provides the = conditions=20 under which a claimant is eligible for relief. Neither the language of = the=20 provision nor the statutory scheme indicates Section 61.051 was intended = to=20 address TWC=92s jurisdiction. See=20 Thomas v. Long, 207 S.W.3d 334, 340 (Tex. 2006) (analyzing both express = language=20 and the statutory scheme to determine jurisdiction). It = establishes a=20 procedural bar similar to a statute of limitations and does not = prescribe the=20 boundaries of jurisdiction.[7] The Legislature=92s bill = analysis supports=20 this reading of Section 61.051. It explains that the provision = =93[e]stablishes a process by which an employee = may file a=20 wage claim with the commission, which can investigate the claim and, if=20 necessary and appropriate, hold an administrative hearing and issue=20 administrative penalties=94 and =93[s]tructures the=20 process and sets specific time lines for the involved parties to = act.=94=20 House Comm. on Gov=92t Org., Bill = Analysis, Tex. H.B. 863, at 11, 71st = Leg., R.S.=20 (1989) (emphasis added). Section 61.051 outlines the filing process for = a Payday=20 Law claim and does not speak to TWC=92s=20 jurisdiction.

=20 The United States Supreme Court has also held that filing = limitations=20 periods for administrative complaints are not jurisdictional. In Zipes v. Trans World Airlines, Inc., = the Court=20 held that the filing limitations period of an EEOC discrimination claim = operated=20 like a statute of limitations rather than as a jurisdictional = prerequisite.=20 455 U.S. 385, 393 = (1982). Title=20 VII of the Civil Rights Act of 1964 requires that anyone wishing to = challenge an=20 employment practice must first file with the Equal Employment = Opportunity=20 Commission (EEOC), within a specified period of time. 42=20 U.S.C. =A7 2000e-5(e). The Supreme Court held that filing a = timely charge=20 of discrimination with the EEOC is not a jurisdictional prerequisite, = but rather=20 a requirement that, like a statute of limitations, is subject to waiver, = estoppel, and equitable tolling. Zipes, 455 U.S. at 393. The relevant = statute in=20 that case =93contains no reference to the timely-filing requirement. The = provision=20 specifying the time for filing charges with the EEOC appears as an = entirely=20 separate provision, and it does not speak in=20 jurisdictional terms or refer in any way to the jurisdiction of the = district=20 courts.=94 Id.=20 at 393−94. The Court explained that the provision = granting federal=20 district courts jurisdiction over Title VII claims does not limit = jurisdiction=20 to those cases in which there has been a timely EEOC filing. Id. at=20 393. Thus, the United States Supreme Court held that even with = their=20 limited subject matter jurisdiction, federal courts maintain = jurisdiction over=20 Title VII claims, even in the event of an untimely EEOC filing. = Id. = Similarly, the=20 180-day filing limitations period in this case is a filing = requirement.

=20 Following Zipes, the = United=20 States Supreme Court continued to distinguish between statements of = jurisdiction=20 and mere filing requirements. In Kontrick v.=20 Ryan, the Supreme Court observed that there is =93a critical = difference=20 between a rule governing subject matter jurisdiction and an inflexible=20 claim-processing rule.=94 540 U.S. = 443, 456=20 (2004). In Arbaugh v. Y = & H=20 Corp., the Supreme Court held that the numerosity=20 requirement of fifteen or more employees in a Title VII action was not=20 jurisdictional, but rather an element of the cause of action that could = not be=20 asserted defensively after the verdict. 546=20 U.S. 500, 516 = (2006).

=20 The dissent argues that because the order of TWC=92s wage claim appeals tribunal used the term = =93dismissed,=94=20 TWC held that it did not have jurisdiction over Igal=92s=20 claim. Section 61.052 authorizes a TWC hearings officer to make one of = two=20 determinations when making a preliminary wage determination: dismiss the = claim=20 or order payment of wages. Tex. Lab. Code =A7 61.052(a) (=93[T]he commission = shall analyze=20 each wage claim filed under Section 61.051 and, if the claim alleges = facts=20 actionable under this chapter, shall investigate the claim and issue a=20 preliminary wage determination order: (1) dismissing the wage claim; or = (2)=20 ordering payment of wages determined to be due and unpaid.=94). Under = the statute,=20 TWC dismisses claims that are unsuccessful, whether based on = jurisdiction or the=20 merits. There is no basis in the statutory language for the dissent=92s = conclusion=20 that TWC=92s =93dismissal=94 of Igal=92s claim necessarily signals only a = non-merits=20 ruling.

=20 The order of TWC=92s hearings officer = =93becomes=20 final 14 days after the date the order is mailed,=94 unless it is timely = appealed=20 to the TWC appeals tribunal. Id. =A7 61.0614. Igal = appealed to the=20 appeals tribunal. The TWC wage claim appeals tribunal may modify, = affirm, or=20 rescind the preliminary wage determination order. Id. =A7=20 61.059. The appeals tribunal=92s dismissal of Igal=92s wage claim became final when Igal failed to file an appeal or motion for = rehearing.=20 Id. =A7=20 61.0614. TWC=92s order states that = its dismissal=20 of the claim was on two grounds: Igal=92s = claim failed=20 on the facts and the law, and Igal=92s = complaint was not=20 timely filed. Although a dismissal in the courts often means the court = held that=20 it did not have subject matter jurisdiction over the dispute, TWC=92s procedures are not governed by the = procedures for=20 courts of law. It has its own procedures, and TWC is not bound in its=20 administrative processes to use judicial terminology.

=20 We interpret the words of the Legislature to have created the = 180-day=20 filing limitations period as a mandatory condition to pursuing the=20 administrative cause of action and not as a bar to TWC=92s exercise of jurisdiction. TWC=92s use of the word =93dismissed=94 in its = order does not=20 alter its jurisdiction. TWC had jurisdiction over Igal=92s claim. We turn to consider whether res judicata should = attach to its=20 final decision.

IV. Res Judicata

A. Preclusive Effect of TWC Orders

=20 Igal maintains that res judicata cannot = apply to his=20 suit in a court of law because the Legislature intended Section 61 to = provide an=20 alternate, and not an exclusive, remedy. He also argues that because he = is not=20 required to appeal void judgments issued by an agency without = jurisdiction, his=20 unsuccessful prosecution of an administrative claim should not bar him = from=20 bringing a common law claim for the same transaction in state court. = Brightstar responds that the court of appeals = correctly=20 applied res judicata because=20 TWC had jurisdiction over the claim and rendered a final decision on the = merits.

=20 Certainly in courts of law, a claimant generally cannot pursue = one remedy=20 to an unfavorable conclusion and then pursue the same remedy in another=20 proceeding before the same or a different tribunal. Res judicata bars the = relitigation of claims that have been finally = adjudicated or=20 that could have been litigated in the prior action. See Barr v. = Resolution=20 Trust Corp., 837 S.W.2d 627, 628 = (Tex. 1992). = For res judicata to apply, = the=20 following elements must be present: (1) a prior final judgment on the = merits by=20 a court of competent jurisdiction; (2) the same parties or those in = privity with them; and (3) a second action based = on the same=20 claims as were raised or could have been raised in the first action. = Daccach, 217 S.W.3d at = 449.=20 Thus, a party may not pursue a claim determined by the final judgment of = a court=20 of competent jurisdiction in a prior suit as a ground of recovery in a = later=20 suit against the same parties. Tex. = Water Rights=20 Comm=92n v. Crow Iron Works, 582 S.W.2d = 768, 771=9672=20 (Tex.=20 1979). In short, res judicata precludes parties from relitigating claims that have been finally = adjudicated by a=20 competent tribunal. See Barr, 837 = S.W.2d at=20 628.

=20 We have not previously decided if res = judicata applies to a final TWC decision. We have, = however,=20 held that to further the public policy discouraging prolonged and = piecemeal=20 litigation, the administrative orders of certain administrative agencies = bar the=20 same claims being relitigated in the court = system.=20 Westheimer ISD v. Brockette, 567 S.W.2d 780, 787, 789 = (Tex. 1978) = (applying the=20 doctrine of res judicata to=20 a ruling of the Texas Commissioner of Education); see also = Coalition=20 of Cities for Affordable Util. Rates v. Pub. Util. Comm=92n, 798 S.W.2d 560, 563, 565 (Tex. 1990) = (applying=20 res judicata to = a Public=20 Utilities Commission ruling). Similarly, the United States Supreme Court = has=20 held that when an administrative agency is acting in a judicial = capacity, res judicata bars = subsequent=20 litigation following the agency=92s decision. United States v. Utah = Constr. & Mining Co., 384 = U.S. = 394, 422=20 (1966), superseded by statute, Contract Disputes Act of 1978, 41 = U.S.C.=20 =A7=A7 601=96 613. =93When an administrative agency is acting in a = judicial capacity and=20 resolve[s] disputed issues of fact properly before it which the parties = have had=20 an adequate opportunity to litigate, the courts have not hesitated to = apply=20 res judicata to = enforce=20 repose.=94 Id. The Supreme Court later = reaffirmed=20 the =93long favored application of the common-law doctrines of = collateral estoppel (as to issues) and res=20 judicata (as to claims) to those = determinations of=20 administrative bodies that have attained finality.=94 Astoria=20 Fed. Sav. & Loan Ass=92n v. Solimino, 501 U.S. 104, 107=20 (1991). Many states have adopted the Supreme Court=92s = three-pronged approach.[8]

=20 In addition to the federal courts and courts of other states, = Texas courts = of appeals=20 have cited Utah Construction & Mining=92s three-part = test in=20 holding that res judicata=20 bars relitigation of claims previously = finally=20 determined by an administrative agency. See, e.g., Tricon Tool & Supply, Inc. v. Thumann, 226 S.W.3d 494, 511 (Tex. = App.=97Houston [1st = Dist.] 2006,=20 pet. denied); Ex parte Serna, 957 = S.W.2d 598,=20 601 (Tex. App.=97Fort Worth 1997, no pet.). The Court of Criminal = Appeals has also=20 used this approach in assessing the effect of administrative decisions = on future=20 court proceedings. See State v. Aguilar, 947 S.W.2d 257, 259 = (Tex. Crim. App. 1997) (citing Ex parte Tarver, 725 S.W.2d 195, 199 (Tex. Crim. App. 1986)). In deciding wage claims under = Section 61,=20 TWC acts in a judicial capacity. The parties had an adequate opportunity = to=20 litigate their claims through an adversarial process in which TWC = finally=20 decided disputed issues of fact. Res judicata, therefore, will generally apply to final = TWC=20 orders.

=20 The fact that the Payday Law provides an alternative remedial = scheme to=20 the common law does not prevent res judicata from applying to TWC orders. Both courts = and=20 administrative agencies may provide remedies for injuries actionable = under the=20 common law. The Legislature intended the Payday Law to provide employees = with a=20 vehicle for relief when a traditional lawsuit proved too arduous. See Holmans v. Transource Polymers, Inc., 914 S.W.2d 189, 192 = (Tex.=20 App.=97Fort Worth 1995, writ denied). Typically, a statutory = remedy is=20 cumulative of the common law remedy, unless the statute denies the right = to the=20 common law remedy. Id. We agree with the = court of=20 appeals in this case that =93[t]he Payday Act is not an employee=92s = sole and=20 exclusive remedy for a claim based on past wages but is rather an = alternative=20 remedy that is cumulative of the common law.=94 140 = S.W.3d at=20 823. Payday Law actions do not abrogate common law claims against = employers for an alleged failure to pay compensation. Rather, TWC offers = an=20 alternate means to the same remedy.

=20 Igal argues that under our holding in = Cash=20 America International, Inc. v. Bennett, res judicata does not preclude claimants from relitigating TWC claims in state court. 35=20 S.W.3d 12, 16 (Tex. 2000). The holding in=20 Bennett was based on the Texas Pawnshop Act=92s provision of = alternate,=20 concurrent remedies to certain common law claims. Id. at=20 14. We explained that =93[t]he Legislature expressly left pledgors free to =91seek a remedy in court=92 if = they are=20 dissatisfied with the Commissioner=92s determination or if the = Commissioner does=20 not make a timely determination.=94 Id. at 17 (citing Act of May 27, 1999, 76th Leg., = R.S., ch. 1399, =A7 7, 1999 Tex. Gen. Laws 4724, 4726 = (now codified=20 at Tex. Fin. Code =A7 = 371.167(a))). Importantly, = in that=20 case, the Legislature had amended the relevant section of code to read = =93if the=20 pledgor does not accept the commissioner=92s = determination, the pledgor may seek a remedy = in=20 court.=94 Tex. Fin. Code=20 =A7 371.167(a). Although=20 this amendment was not applicable to the case, the Court found it = instructive in=20 assessing the Legislature=92s intent. The Labor Code does not provide = Igal with any such recourse.

=20 Igal also argues that the court of = appeals=20 erred in its reliance on Holmans = for the=20 holding that res judicata=20 applies to Igal=92s claim. 914 S.W.2d=20 at 189. In that case, the claimant filed a common law debt action = to=20 recover unpaid sales commissions and expenses. Id. at 190. He then filed an administrative wage claim = with the=20 Texas Employment Commission (TEC).[9] Id. The preliminary = wage=20 determination indicated that the employer owed the claimant over $25,000 = in=20 unpaid commissions. Id. However, prior to the = final=20 determination, the claimant withdrew his administrative claim to pursue = common=20 law relief. Id. The employer moved = to=20 dismiss the common law claim for failure to exhaust administrative = remedies.=20 Id.=20 The court of appeals reversed, holding that the claimant could = pursue his=20 common law claim because he withdrew his wage claim before the agency = made a=20 decision. Id. at=20 194. The court reasoned that

[s]hould a claimant choose to file a claim under the = [Payday=20 Law], utilize its remedial scheme, and appeal the final administrative = order,=20 then the claimant is properly required to abide by the statute=92s = provisions. We=20 do not, however, construe the Payday Law as preempting a claimant, such = as=20 appellant, from choosing to pursue his claim as a common-law action in = the=20 courts of this state.

Id.=20 at 193. Accordingly, once a claimant who has alternate = proceedings at=20 his disposal to obtain relief available under the Payday Law pursues an=20 administrative claim to a final decision, he forgoes his common law = claims. To=20 pursue a common law remedy for the same wages as sought in his payday = claim, a=20 claimant must withdraw his administrative claim before the agency issues = a final=20 decision. See id.; see also Tricon Tool & Supply, Inc., = 226=20 S.W.3d at 511 (claimant barred by res judicata when he failed to withdraw his = administrative claim=20 before agency decision became final). Because Igal did=20 not withdraw his administrative claim prior to TWC=92s=20 final determination, res judicata will bar his claim if TWC=92s order is considered final for the purposes = of res judicata.

B. Preclusive Effect of TWC=92s Igal Order

1. Adjudication of Disputed Facts

=20 TWC=92s written order plainly = resolved disputed=20 facts and determined that Igal=92s claim for = unpaid=20 wages was without merit. The dissent contends that because TWC argues in = this=20 Court that it dismissed the claim on procedural grounds, we cannot hold = that the=20 decision was anything more than a procedural dismissal for untimeliness. There are at least two answers to = that=20 argument. First, the dissent shortchanges TWC=92s=20 argument. TWC asserts that it lacked subject matter jurisdiction over = Igal=92s late-filed claim. We have already held to = the=20 contrary, and the dissent agrees that TWC is wrong on this point. = Second, TWC=20 adjudicated more than just the timeliness issue in its Payday Law = decision. In=20 the order of its appeal tribune, TWC made findings of fact:

Although=20 the claimant did not receive a document from either entity which states = =93your=20 agreement is not being renewed=94, the claimant was notified in writing = that his=20 group was being dissolved and he was no longer performing services for = the named=20 businesses. The Commission considers this sufficient notice that the = agreement=20 was not being renewed. The claimant was paid through the end of the last = contract period, April, 1999-April, 2000.

=20

Since the=20 claimant remained on the payroll with the named businesses through the = end of=20 the contract period, he is considered =93employed=94 by the named = businesses through=20 the end of the contract period. The agreement expired. The claimant=92s = employment=20 ended when the contract ended. He was not =93terminated without cause=94 = as provided=20 in the agreement and, therefore, is not entitled to the various payments = which=20 may have become due under the agreement if his employment had been = terminated=20 without cause.

Consequently, there = is no=20 extension of compensation owed to the claimant beyond the expiration of = the=20 agreement in April 2000. The Commissions=92 jurisdiction extends back = only 180=20 days from the filing of the wage claim. Any pay owed to the claimant = would have=20 been due well before the beginning of the Commission=92s jurisdiction in = this=20 case. Therefore, the wage claim was not timely filed and is = dismissed.

TWC decided=20 the key questions of fact in dispute in Igal=92s payday=20 claim: when Igal=92s employment contract = expired, that=20 he had sufficient notice that the contract was not being renewed, that = he was=20 not terminated without cause, and that he was not entitled to any = additional=20 compensation. The dissent correctly concludes that =93the Commission had = to decide=20 whether he was terminated for cause or nonrenewal=94 as=20 a prerequisite to deciding whether Igal=92s = claim was=20 timely. __ S.W. 3d. __, __. Yet the dissent = maintains=20 that these necessary findings of fact did not go to the merits of Igal=92s claim. Id. Regardless of their = purpose,=20 however, these findings were determinations made by a competent tribunal = vested=20 with judicial authority to make those decisions after an adequate = opportunity to=20 air the issue. As the Court decides that the filing limitations period = was not a=20 jurisdictional prerequisite, TWC=92s order = that Igal was not entitled to additional compensation = could stand=20 on its own feet as a final judgment. The suggestion that findings of = fact that=20 were necessary to a final judgment should not be accorded res judicata effect = would be quite=20 a departure from established jurisprudence. Claim preclusion is accorded = to all=20 claims that have been finally adjudicated or that could have been = finally=20 adjudicated in the prior litigation that arise from the same = transaction.=20 Barr, 837 S.W.2d at 628.

=20 Moreover, the dissent=92s assertion that TWC=92s=20 merits determination was =93an advisory opinion=94 misconstrues the = term, as even=20 the dissent concedes that it was necessary for TWC to answer the merits = question=20 as a condition to concluding the claim was untimely.

2. Limitations Ruling

=20 Even if we interpreted TWC=92s = decision as merely=20 a dismissal for failure to meet the 180-day filing limitations period, = we reach=20 the same conclusion. The filing limitations period acts as a statute of=20 limitation for Payday Law claims. A court=92s dismissal of a claim = because of a=20 failure to file within the statute of limitations is accorded preclusive = effect.=20 See Fite v. King, 718 S.W.2d 345, 347 = (Tex.=20 App.=97Dallas 1986, writ ref=92d n.r.e.); see also Besing v.=20 Vanden Eykel, 878 S.W.2d=20 182, 185 (Tex. App.=97Dallas 1994, writ denied) (stating that granting = summary=20 judgment on limitations operates as res = judicata to a subsequent writ between the same = parties on=20 the same cause of action). The Fifth Circuit has enunciated = unequivocally that=20 res judicata = =93shall be given=20 to a judgment dismissing a cause of action on limitations grounds.=94 = Steve D.=20 Thompson Trucking, Inc. v. Dorsey Trailers, Inc., 870 F.2d 1044, = 1046 (5th=20 Cir. 1989) (citing Nilsen v. City = of Moss=20 Point, 674 F.2d 379, 382 (5th Cir. 1982), aff'd on rehearing, 701 F.2d 556 = (5th=20 Cir.1983) (en banc)). Many other federal courts of appeals have also = recognized=20 that a final judgment on statute of limitations grounds precludes = further=20 litigation of the same dispute. See, e.g., Murphy v. = Klein=20 Tools, Inc., 935 F.2d 1127, 1128=9629 (10th Cir. 1991); Kale v. = Combined=20 Ins. Co. of Am., 924 F.2d 1161, 1163, 1165 (1st Cir. 1991); Shoup v. Bell & Howell, Co., 872 F.2d = 1178, 1180=20 (4th Cir. 1989); Rose v. Town of Harwich, 778 F.2d 77, 80 (1st = Cir. 1985)=20 (applying Massachusetts law and acknowledging a =93clear trend toward = giving=20 claim-preclusive effect to dismissals based on statutes of = limitations=94); PRC=20 Harris, Inc. v. Boeing Co., 700 F.2d 894, 896 (2d Cir. 1983). = Failure=20 to timely file an administrative wage claim, as mandated by the = Legislature,=20 bars the claim on limitations grounds. TWC=92s dismissal=20 of Igal=92s claims under Section 61.052(a) = is a denial=20 of the claim to which res judicata attaches when, as here, the claim is = pursued to=20 final judgment.

=20 The dissent relies on Section 49 of the Restatement (First) of = Judgments=20 and the Restatement of Conflict of Laws for the proposition that a = claimant=20 whose action is precluded by limitations in one state court may still = be able to pursue the same action in a different = state with a=20 longer limitations period. __ S.W.3d at __.[10] That analogy, the dissent = argues,=20 supports letting a Payday claimant who litigates his claim in the Texas=20 Commission to a final decision later file the same claim in a Texas court = of law.=20 Id.=20 This argument fails for several reasons.

=20 First, Igal does not cite Section 49 = or make=20 the argument the dissent makes. Second, this Court has not adopted = Section 49 of=20 the Restatement. Third, Section 49 does not support the proposition that = a=20 Payday claimant can pursue his claim twice in this case. Comment (a) to = Section=20 49 addresses the potential to file a claim in two different states with=20 different statutes of limitations:

class=3DSection3> =

[I]f the=20 plaintiff brings an action to enforce a claim in one State and the = defendant=20 sets up the defense that the action is barred by the Statute of = Limitations in=20 that State, the plaintiff is precluded from thereafter maintaining an = action to=20 enforce the claim in that State. He is not, however, precluded from = maintaining=20 an action to enforce the claim in another State if it is not = barred by=20 the Statute of Limitations in that State.

class=3DSection4> =

Restatement = (First) of=20 Judgments =A7 49 cmt. a (1942) (emphasis added). Igal=92s=20 claim is being pursued in one state, not in two states with separate=20 legislatures that have mandated different public policies on = limitations. See=20 Steve D. Thompson Trucking, Inc. v. Dorsey Trailers, Inc., 880 F.2d = 818, 819=20 (5th Cir. 1989) (denial of rehearing) (concluding that Section 49 = applies to=20 =93duplicative actions in state courts in different states=94). As this = Court has=20 explained, the Texas Legislature=92s creation of the Payday = administrative scheme=20 and the attendant filing limitations period logically effectuates its = efficiency=20 goals, which are not inconsistent with the existence of an alternate = common law=20 contract claim. The Legislature set up a more rapid administrative route = that a=20 claimant may select, or a claimant may pursue the judicial route; both = have=20 benefits and detriments depending on the timing of the filing, the size = of the=20 claim, the cost of pursuing recovery, and other factors. In this case, = we are=20 not faced with contrary policies in separate jurisdictions which Section = 49=20 presumes for its limitations argument. The Fifth Circuit Court of = Appeals case=20 on which the dissent relies for its Section 49 argument is = distinguishable as it=20 presents competing limitations policies in different states that are not = at=20 issue here. See Henson v. Columbus Bank & Trust Co., = 651 F.2d=20 320, 325 (5th Cir. 1981) (a plaintiff=92s failure to defeat a statute of = limitations defense in one state does not necessarily preclude the = action in=20 another jurisdiction). The Fifth Circuit later distinguished Section 49 = and=20 squarely held, in cases like this one, that a dismissal on limitations = grounds=20 operates to bar subsequent litigation of the same dispute in the same=20 jurisdiction. See Ellis v. Amex Life Ins. Co., 211 F.3d 935, 937 = (5th=20 Cir. 2000) (dismissal of a suit on limitations grounds bars second = suit=20 under principles of res judicata); Thompson Trucking, 880 F.2d at = 819=20 (distinguishing Henson); see also Mathis v. Laird, = 457 F.2d=20 926, 927 (5th Cir. 1972) (holding that a ruling based on a statute of=20 limitations was a decision on the merits for res judicata purposes).[11]

=20 Fourth, claimants are entitled to a fair and reasonable procedure = to=20 recover unpaid wages. We do not conclude, however, that because the = Legislature=20 created an administrative route to recovery as an alternative to a = lawsuit, that=20 claimants necessarily will have two bites at the apple. They are = entitled to a=20 fair bite, but not two bites. A common law breach of contract claim for = damages=20 has long existed. The 1989 amendments to the Labor Code that created an=20 administrative route for employees to obtain unpaid wages advised = employees that=20 they =93may,=94 not must, file a wage claim with TWC. Employees were = then given a=20 choice between an administrative process designed to adjudicate quickly=20 relatively small claims or to have their day in court and the longer and = more=20 involved process of the judicial system. See = Tricon Tool & Supply, Inc., 226 S.W.3d at=20 511. The Legislature could have created two consecutive = procedures (an=20 administrative proceeding followed by a new judicial proceeding for the = dissatisfied party) for adjudicating these claims, = but there=20 is no indication that it did. In Texas parlance, the claimant selects = which=20 horse to ride. Once the horse crosses the finish line, a claimant cannot = switch=20 horses and run the same race again, hoping for a different outcome.

=20 Fifth, the dissent=92s position would also make TWC = determinations based on=20 limitations entirely duplicative, as any party aggrieved by a final=20 administrative decision on limitations would get another chance in a = lawsuit=20 over the same claim in a court of law. See Tex. Lab. = Code =A7=20 61.062. Morever, this = position=20 could pit one court=92s ruling against another. An unsuccessful party = who timely=20 appealed the final TWC limitations ruling to a trial court of competent=20 jurisdiction could also obtain review in Texas appellate courts thereafter. = If the=20 party ultimately lost the judicial appeal of TWC=92s=20 administrative decision, including through judicial appeals and petition = to this=20 Court, the dissent would allow the party to file a new common law claim = in a=20 court that could reach a different result. There is simply no indication = that=20 the Legislature intended Payday Law claims to receive judicial review in = two=20 separate court proceedings. We decline to impose such substantial = inefficiency=20 on the Legislature=92s Payday scheme.

=20 Finally, we do not equate the optional filing of an = administrative claim=20 as equivalent to filing a common law claim in a separate = jurisdiction=92s court of=20 law, such that Section 49=92s two-state approach might apply. Unlike = with common=20 law claims, the Legislature can prescribe with relatively few = limitations the=20 parameters, damages, and procedures for pursuing an administrative right = it=20 creates. See Tex. Natural Res. Conservation Comm=92n=20 v. Lakeshore Util. Co., 164 S.W.3d 368, 377 (Tex. 2005) (=93We begin = with the=20 well-established principle that as an administrative agency, the = Commission may=20 exercise only those powers that the Legislature confers upon it in clear = and=20 express language, and cannot erect and exercise what really amounts to a = new or=20 additional power for the purpose of administrative expediency.=94) = (citing Pub. Util. Comm=92n v. City Pub. Serv. Bd. of San=20 Antonio, 53 S.W.3d 310, = 316=20 (Tex.=20 2001)). The Legislature created an alternate = administrative=20 remedy and included a right to appeal the final administrative = determination to=20 a court of law. Igal availed himself of the=20 administrative avenue and declined to exercise his right to appeal.

=20 TWC was acting in a judicial capacity when it decided that Igal=92s failure to timely file defeated his = claims. When=20 TWC=92s decision became final, Igal was bound by that decision. Res judicata, = therefore, barred=20 Igal=92s suit in district court.

V. Conclusion

=20 Igal had the option of seeking = relief for=20 alleged unpaid wages in an administrative proceeding under the Payday = Day Law or=20 pursuing a common law debt action in state court. He chose the former. = Only=20 after TWC entered a final judgment on the merits, which Igal elected not to appeal, did Igal seek redress in the courts. We hold that the = doctrine=20 of res judicata = bars Igal from pursuing relief in a court of law after = obtaining=20 a final decision in TWC for the same transaction. We therefore affirm = the=20 judgment of the court of appeals.

=20 =20 =20 =20 =20 ________________________________________

=20 =20 =20 =20 =20 =20 J. Dale Wainwright

=20 =20 =20 =20 =20 =20 Justice

OPINION DELIVERED: = DECEMBER 7,=20 2007

^*=20 The Honorable Bob McCoy, Justice, Second District Court of Appeals, = sitting by=20 commission of the Honorable Rick Perry, Governor of Texas, pursuant to = section=20 22.005 of the Texas Government Code. Justice Hecht is recused.

^[1]=20 Act of March 1, 1915, 34th Leg., R.S., ch. = 25, 1915=20 Tex. Gen. Laws=20 43 (amended 1933, 1957, 1983, 1985, 1989, 1991). This act was codified = into the=20 Texas Labor Code in 1993 and subsequently amended. Act of May=20 12, 1993, 73d Leg., R.S., ch. 269, =A7 1, = 1993 Tex. Gen.=20 Laws 987, 1010) (amended 1995, 1997, 2003, 2005) (current version at = Tex. Lab. = Code =A7=A7=20 61.001=96.095).

^[2]=20 By its terms, the Payday Law does not apply to the federal or Texas = government, or=20 political subdivisions of this state. Tex. Lab. = Code =A7=20 61.003.

^[3]=20 Independent contractors are not protected by the Payday Law. Tex. Lab. = Code=20 =A7 61.001(3)(B).

^[4]=20 A 2003 study of 119 claims found that the median wage claim was $420.00. = Julien Ross, A Fair Day=92s Pay: The Problem of Unpaid Workers in Central = Texas, 10=20 Tex. Hisp. J.=20 L. & Pol=92y 117, 128 (2004).

^[5]=20 Although in the past we have described a statutory time limitation in = the=20 Commission on Human Rights Act as =93mandatory and jurisdictional,=94 = those cases=20 predate Dubai and dealt with a = different=20 statutory scheme than presented here. See Johnson = &=20 Johnson Med., Inc. v. Sanchez, 924 S.W.2d 925, 929 (Tex. 1996); Specialty Retailers v. DeMoranville, 933 S.W.2d 490, 492 (Tex. 1996); Shroeder=20 v. Tex. Iron Works, 813 S.W.2d = 483, 486=20 (Tex.=20 1991).

^[6]=20 The Legislature amended Section 311.034 in 2005, after the filing of = this case,=20 to provide that =93[s]tatutory prerequisites = to a suit,=20 including the provision of notice, are jurisdictional requirements in = all suits=20 against a government entity.=94 The superseding statute addresses = waivers of=20 sovereign immunity in suits against government entities, which is not at = issue=20 here.

^[7]=20 Subsection (c) creates the 180-day filing limitation period. Tex. Lab. = Code =A7 = 61.051(c). The remaining = subsections=20 deal with other procedural, not jurisdictional issues: Subsection (b) = states=20 that =93[a] wage claim must be in writing on a form prescribed by the = commission=20 and must be verified by the employee,=94 and Subsection (d) allows the = employee to=20 file his claim in person or by mail.

^[8]=20 The highest courts in many states have relied on the United States = Supreme Court=20 decision in Utah Construction & Mining to evaluate the = preclusive=20 effects of administrative agency decisions. See, e.g., Luedtke v. Nabors Alaska=20 Drilling, 768 P.2d 1123, 1131 n.5 (Alaska 1989); Brosterhous v. State Bar, 906 P.2d = 1242, 1254=20 (Cal. 1995); State v. Dukelow, No. = 24233, 2003=20 WL 21481142, at *1 (Haw. Jun. 27, 2003); Bennett v. MC No. 619, = Inc., 586=20 N.W.2d 512, 517=9618 (Iowa 1998); Gulf States Utils. Co. v. La. = Pub. Serv. Comm=92n, = 633 So. 2d 1258,=20 1267 (La. 1994) (Dennis, J., concurring); Stowe v. Bologna, 610 = N.E.2d=20 961, 963 (Mass. 1993); Nasi v. = State Dep't=20 of Highways, 753 P.2d 327, 329 (Mont. 1988); Scott v. = Mattingly,=20 488 N.W.2d 349, 352 (Neb. 1992); City of Hackensack v. = Winner, 410=20 A.2d 1146, 1161 (N.J. 1980); Ryan v. N.Y. Tel. Co., 467 N.E.2d = 487, 499=20 (N.Y. 1984); Cridland v. N.D. = Workers Comp.=20 Bureau, 571 N.W.2d 351, 355 (N.D. 1997); Superior=92s Brand = Meats, Inc. v.=20 Lindley, 403 N.E.2d 996, 999 (Ohio 1980); Lee v. R.I. Council = 94, 796=20 A.2d 1080, 1089 (R.I. 2002); Carman v. S.C. Alcoholic Beverage = Control Comm=92n, 451 S.E.2d 383, 386 (S.C. 1994); = Schmidt v.=20 Zellmer, 298 N.W.2d 178, 180 (S.D. = 1980); Salt=20 Lake Citizens Congress v. Mountain States Tel. & Tel. Co., 846 = P.2d=20 1245, 1251 n.4 (Utah 1992); Sheehan v. Dep=92t of Empl. & Training, 733 A.2d 88, 91 (Vt. 1989); In re Personal Restraint of = Gronquist, 978 = P.2d 1083,=20 1090 (Wash. 1999); Liller v. W. Va. Human Rights Comm=92n, 376 = S.E.2d 639, 646=20 (W. Va. 1988); Lindas v. Cady, = 515 N.W.2d=20 458, 466 (Wis. 1994); Slavens v. Bd. of County Comm=92rs,=20 854 P.2d 683, 685 (Wyo. 1993). The = Minnesota=20 Supreme Court has also applied res judicata to administrative agency decisions, = independent of=20 Utah Construction & Mining. See McKee v. County of Ramsey, 245 N.W.2d = 460=20 (Minn.=20 1976).

^[9] The TEC dealt with Section 61 = wage claims,=20 like Igal=92s, until 1995. In 1995, the = Legislature=20 enacted House Bill 1863, merging twenty-eight workforce services, = including TEC,=20 into TWC. Act of May 26, 1995, 74th Leg., R.S., ch.=20 655, art. 11, 1995 Tex. Gen. Laws 3543, 3580 = (current version=20 at Tex. Lab. = Code =A7=A7=20 301.001=96.171).

^[10] In section 19 of the subsequent = Restatement=20 (Second) of Judgments, the treatise acknowledges that increasingly = judgments not=20 passing directly on the merits of a claim are accorded preclusive = effect,=20 =93especially if the plaintiff has failed to avail himself of = opportunities to=20 pursue his remedies in the first proceeding.=94 In this case, after TWC = issued its=20 final adjudication, Igal failed to pursue = his=20 statutory right to appeal TWC=92s decision = to a district=20 court.

^[11] The dissent also cites Miller, = Wright, and=20 Cooper=92s Federal Practice and Procedure for the proposition that a = second forum=20 may allow a suit barred by limitation in the first forum to proceed. 18A = Charles Alan Wright, Arthur R. = Miller &=20 Edward H. Cooper, Federal Practice and Procedure =A7 4441 (2d ed. = 2002).=20 Section 4441 does not consider the preclusive effect of a state = administrative=20 agency order on a claim filed in a court in the same=20 state.