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TEXAS COURT OF APPEALS, THIRD DISTRICT, AT
AUSTIN

NO. 03-05-00499-CV

Texas Parks & Wildlife
Department, Appellant

v.

Milburn Dearing, Kenneth Head, and Mike Warren,
Individually

and on Behalf of All Others Similarly Situated,
Appellees

FROM THE DISTRICT
COURT OF TRAVIS COUNTY, 200TH JUDICIAL
DISTRICT

NO. GN102867, HONORABLE LORA J. LIVINGSTON, JUDGE
PRESIDING

C O N C U R R I N G O P I N I O
N

I join the majority opinion
except for that part of the opinion dealing with the single filing rule.
Because I disagree that there is currently a basis for recognizing, in
Texas, a single filing rule for the type of complaint at issue in this
case, I concur in the majority's judgment, but
write separately.

The majority concludes that
the federal statutory structure for Title VII claims is similar enough to
the Texas Labor Code that Texas courts should apply the single filing rule
for the purposes of satisfying administrative exhaustion requirements in
the context of class treatment of individual claims. However, there is a
critical distinction between the Texas and federal statutory schemes.
Federal law provides that administrative exhaustion may be satisfied by a
charge filed "by or on behalf of a person claiming to be
aggrieved." 42 U.S.C.A. § 2000e-5(b) (West 2003) (emphasis added). Thus, a
federal charge filed on behalf of a class of persons similarly situated
can satisfy federal statutory exhaustion requirements and is consistent
with the federal statutory structure. The Texas statutory structure does
not contain a similar provision. Under the current Texas statute, a charge
must be filed by the person aggrieved or the "person's agent." See
Tex. Lab. Code Ann. § 21.201 (West 2006). Thus, under current Texas
law, administrative exhaustion is not satisfied by a filing merely "on
behalf of" a person. The filing must be by the person or the person's
agent. Other than the unsupported statements in Dearing I,
(1) I am not aware of any authority that declares a plaintiff
seeking to be named a class representative of a putative class to be the
agent of unnamed class members. Even if a class is certified, the class
representative serves as a representative member of the class,
but he or she is not the agent of the unnamed class members. A
class representative must only be a member of the class and must be
adequate to represent the interests of the class. Class members neither
have to approve of a class representative nor agree with him or her. They
are free to opt-out of the class or opt-in and object every step of the
way. The class member/class representative relationship is, in some ways,
not entirely defined; however, it is not a principal/agent relationship
unless class members make it so.

While it might seem
efficient or reasonable from a policy standpoint to consider a single
filing rule for the purposes of administrative exhaustion in the class
certification context, Texas courts are not in a position to judicially
incorporate such a rule into the labor code. Administrative remedies and
the requirements for exhausting those remedies are creatures of statute.
The statutes govern how those requirements may be satisfied. The current
Texas statutory scheme for exhaustion of administrative remedies for the
type of claims at issue in this case requires that a charge be filed by
the person aggrieved or the person's agent. It does not provide for a
filing "on behalf of" the person aggrieved or by someone who is something
like an agent or similar to an agent. A person seeking to be the class
representative of a putative class is not an agent for unnamed class
members--apparent, implied, or otherwise--and, therefore, under the Texas
Labor Code, cannot satisfy exhaustion requirements on behalf of all other
members of a class.

I would hold that the single
filing rule is inconsistent with the current iteration of Texas Labor Code
section 21.201 and should not be engrafted on the statutory administrative
remedy structure by judicial decision. I would also hold that this Court's
decision on this issue in Dearing I is clearly
erroneous.

__________________________________________

G. Alan Waldrop,
Justice

Before Chief Justice Law,
Justices Pemberton and Waldrop

Filed: August 3,
2007

1. Tex. Parks & Wildlife Dep't v.
Dearing, 150 S.W.3d 452 (Tex. App.--Austin 2004, pet. denied),
cert denied, 544 U.S. 960 (2005).