OPINION Amier Gantt sued his former employer, Harris County, alleging that his employment was unlawfully terminated based on his race. When Gantt died during the litigation, Harris County filed a plea to the jurisdiction. Harris County argued that the trial court lacked subject-matter jurisdiction because Gantt’s claim did not survive his death and, even if it had, there was no waiver of governmental immunity for the survival claim. The trial court granted the plea. Kimberly Gantt, Gantt’s widow purporting to act as Gantt’s heir and the representative of his estate, contends in her first two issues on appeal that the trial court erred by dismissing Gantt’s employment discrimination claim because his death did not extinguish the claim and the Legislature waived Harris County’s immunity for employment discrimination claims in Chapter 21 of the Texas Labor Code (the Texas Commission on Human Rights Act or TCHRA).[1] In her third issue, Kimberly contends that the trial court erred by failing to enter her suggestion of death on the record in open court. We reverse and remand. Background In August 2017, Amier Gantt filed suit against Terry Ortiz (his supervisor), Harris County Central Technology Services (the department he worked for), and Harris County. The claims alleged against all three County defendants were based on race discrimination under the TCHRA, intentional infliction of emotional distress, and negligence. As damages, Gantt sought loss of income, back pay, front pay, past and future mental anguish, “emotional pain,” loss of benefits, and costs associated with the litigation. He also sought recovery of exemplary damages under Section 21.2585 of the Labor Code.[2] Through a series of orders issued between April 6, 2018,and August 23, 2018, granting dispositive motions filed by the County defendants, the claims were narrowed such that only the employment discrimination claim against Harris County remained.[3] In September 2018, Gantt died. Gantt’s counsel filed a suggestion of death with the trial court, which was accompanied by her own affidavit stating that the issuance of a certificate of death was delayed, Gantt’s wife Kimberly had not received the certificate of death until January 25, 2019, and that counsel “believe[d] [Kimberly would] be designated as the administrator for [his] estate” and would “file an amended notice with the court to follow through with Texas Rule[] of Civil Procedure 151 regarding Death of a Plaintiff.”[4] In January 2019, Harris County filed a second plea to the jurisdiction, arguing that the employment discrimination claim did not survive Gantt’s death because “[t]here is no right of survivorship and no waiver of immunity for a survivorship claim brought under the Texas Labor Code for discrimination.” Kimberly responded that the trial court had already ruled that immunity was waived for Gantt’s TCHRA claim and that, although there was no case law definitively providing for a right of survivorship for a TCHRA claim, there was “also no case law that states [Gantt's] cause of action cannot continue by his heirs or estate.” On March 4, 2019, the trial court granted the plea and dismissed the case. A notice of appeal was filed on April 4, 2019, and reads: This Notice of Appeal for the Plaintiff, Ami[e]r Gantt and his Estate on behalf of the deceased Plaintiff, is filed for the race discrimination claims against the Defendant. The Defendant, Harris County, is Plaintiff’s former employer. Plaintiff is appealing this court’s decision to grant the Defendant’s Plea to the Jurisdiction. On appeal, in addition to responding to the arguments raised by Kimberly, Harris County challenged this Court’s jurisdiction because the notice of appeal was purportedly filed by Gantt and the “Estate of Amier Gantt.” Harris County argued that this Court lacked jurisdiction over the estate because it is not a proper party that can sue or be sued. Before submitting this case, this Court issued an order noting that because it appeared the appealed-from order was entered before an administrator of Gantt’s estate was named, the record was incomplete as to whether Kimberly is the correct party as the representative of his estate. Accordingly, we abated the appeal and ordered the trial court to conduct a hearing to determine whether Kimberly was the representative of Gantt’s estate and the proper party under Texas Rule of Civil Procedure 151. The trial court conducted a hearing and found that Kimberly was appointed the independent administratrix of the Estate of Amier Gantt and, in that capacity, is a proper party to this lawsuit.[5] The trial court’s findings, along with the letters of administration and order granting independent administration and appointing Kimberly as independent administratrix of Gantt’s estate, were filed with this Court in the fourth supplemental clerk’s record. Following receipt of this supplemental clerk’s record, this Court reinstated the appeal. Timeliness of Notice of Appeal On April 12, 2022, following reinstatement of this appeal, we notified the parties that a question remained as to the timeliness of Gantt’s notice of appeal. Specifically, we noted that the notice of appeal, filed on April 4, 2019, may not have been timely filed to appeal the trial court’s judgment signed 31 days earlier, on March 4, 2019. See TEX.R.APP.P. 26.1 (requiring notice of appeal to be filed within 30 days after judgment is signed or within 90 days if timely motion for new trial is filed). The clerk’s record does not reflect that any post-judgment motion extending the appellate deadlines was filed in the trial court, nor was a motion to extend the time for filing a notice of appeal filed in this Court. See TEX. R. CIV. P. 329b(a) (requiring motion for new trial to be filed within 30 days after judgment or other order complained of signed); see also TEX. R. APP. P. 26.3 (appellate court may extend time to file notice of appeal if, within 15 days after deadline for filing notice of appeal, party (a) files notice of appeal in trial court and (2) files motion complying with TEX.R.APP.P. 10.5(b) in appellate court). However, a notice of appeal filed within 15 days of the relevant deadline for filing such a notice is treated as an implied motion for extension of time to file the notice of appeal. Verburgt v. Dorner, 959 S.W.2d 615, 617 (Tex. 1997). We may grant the implied motion for extension if the appellant provides a reasonable explanation for the untimeliness of the filing, that is, a “plausible good faith justification for filing their notice of appeal when they did.” Hone v. Hanafin, 104 S.W.3d 884, 887 (Tex. 2003) (per curiam). Accordingly, we requested that Gantt file a response demonstrating that this Court has jurisdiction to decide the appeal. Gantt did so, providing this Court with what we interpret as a “reasonable explanation,” albeit a mistaken one, for filing the notice of appeal one day late. See Hone, 959 S.W.3d at 886–87 (instructing that appellate court may consider notice of appeal filed within 15-day period stated in Rule 26.3 as implied motion for extension of time if appellant reasonably explains failure to timely file notice of appeal and that, “[a]bsent a finding that an appellant’s conduct was deliberate or intentional, the court of appeals should ordinarily accept the appellant’s explanations as reasonable”); cf. Easton v. Phelan, No. 01-10-01067-CV, 2012 WL 1650024, at *7 (Tex. App.—Houston [1st Dist.] May 10, 2012, no pet.) (mem. op.) (citing Garcia v. Kastner Farms, Inc., 774 S.W.2d 668, 670 (Tex. 1989) (“[A] mistake regarding the law is a reasonable explanation for the purpose of deciding whether to grant an implied motion for extension.”)). Therefore, treating the notice of appeal as an implied motion for extension of time to file a notice of appeal, we grant the motion. See TEX.R.APP.P. 26.3. Because we hold the notice of appeal was timely filed, we have jurisdiction over the appeal. We turn to the merits. Capacity In her third issue on appeal, Kimberly argues that the trial court erred by failing to enter her suggestion of death on the record in open court. Relatedly, Harris County argues that this Court lacked jurisdiction because the notice of appeal, filed on behalf of Gantt’s estate, was not filed by a proper party with capacity to sue and be sued. As noted above, we abated the appeal, and the trial court found that Kimberly was appointed as independent administratrix and was therefore a proper party to this appeal. Consequently, we conclude that the issues related to capacity have been resolved. See Austin Nursing Ctr., Inc. v. Lovato, 171 S.W.3d 845, 851 (Tex. 2005) (“We need not decide whether Lovato proved heirship, however, because we hold that, in any event, Lovato acquired the capacity to sue as the estate’s personal representative when she was appointed administrator on May 9, 2002.”). Plea to the Jurisdiction In her first and second issues, Kimberly argues that the trial court erred by dismissing Gantt’s employment discrimination claim because (1) his death did not extinguish the claim and (2) the Legislature has waived Harris County’s immunity for employment discrimination claims in the TCHRA. A. Standard of Review A plea to the jurisdiction challenges the trial court’s authority to decide a case. Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 553–54 (Tex. 2000). Because governmental immunity from suit defeats a trial court’s subject-matter jurisdiction, it is “properly asserted in a plea to the jurisdiction.” Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 225–26 (Tex. 2004). Whether the trial court has subject-matter jurisdiction is a question of law reviewed de novo, Tex. Nat. Res. Conservation Comm’n v. IT-Davy, 74 S.W.3d 849, 855 (Tex. 2002), and the plaintiff bears the burden of affirmatively demonstrating the trial court’s jurisdiction. See Miranda, 133 S.W.3d at 226. A plea to the jurisdiction may challenge the pleadings, the existence of jurisdictional facts, or both. Alamo Heights Indep. Sch. Dist. v. Clark, 544 S.W.3d 755, 770 (Tex. 2018). When the plea to the jurisdiction challenges only the pleadings, “we determine if the pleader has alleged facts that affirmatively demonstrate the court’s jurisdiction to hear the cause.” Miranda, 133 S.W.3d at 226. To determine whether the plaintiff met her burden, “we liberally construe the pleadings, taking all factual assertions as true and looking to [the plaintiff's] intent.” City of Ingleside v. City of Corpus Christi, 469 S.W.3d 589, 590 (Tex. 2015) (per curiam). “If the pleadings do not contain sufficient facts to affirmatively demonstrate the trial court['s] jurisdiction but do not affirmatively demonstrate incurable defects in jurisdiction, the issue is one of pleading sufficiency and the plaintiff[] should be afforded the opportunity to amend [her pleadings].” Miranda, 133 S.W.3d at 226– 27. But if the pleadings affirmatively negate the existence of jurisdiction, the plea to the jurisdiction must be granted without giving the plaintiff an opportunity to amend. Id. at 227. B. Analysis This case presents two issues of first impression. First, whether a plaintiff’s cause of action under the TCHRA survives his death. And second, if the TCHRA cause of action survives, whether immunity is waived for such suits against governmental entities. We have found no Texas state court decisions addressing these issues. We first must determine whether Gantt’s TCHRA claim survived his death. The TCHRA does not specify if causes of action arising under its provisions survive the plaintiff’s death. But Texas has a general survival statute that applies to “personal injur[ies.]” See TEX.CIV.PRAC.& REM.CODE § 71.021. Thus, we consider whether Gantt’s TCHRA cause of action would fit within Section 71.021′s parameters. At common law, an individual’s action for personal injuries did not survive his death. Rose v. Doctors Hosp., 801 S.W.2d 841, 845 (Tex. 1990); Landers v. B.F. Goodrich Co., 369 S.W.2d 33, 35 (Tex. 1963). The Legislature has abrogated this rule by enacting Section 71.021, which states: Survival of Cause of Action (a) A cause of action for personal injury to the health, reputation, or person of an injured person does not abate because of the death of the injured person or because of the death of a person liable for the injury. (b) A personal injury action survives to and in favor of the heirs, legal representatives, and estate of the injured person. The action survives against the liable person and the person’s legal representatives. (c) The suit maybe instituted and prosecuted as if the liable person were alive. TEX.CIV.PRAC.& REM.CODE § 71.021. The Texas Supreme Court has explained that by this statute, a decedent’s action survives his death and may be prosecuted in his behalf. Russell v. Ingersoll- Rand Co., 841 S.W.2d 343, 345 (Tex. 1992). The survival action, as it is sometimes called, “is wholly derivative of the decedent’s rights.” Id. A survival action does not create a new cause of action and merely permits the injured decedent’s cause of action to survive his death. Kramer v. Lewisville Mem’l Hosp., 858 S.W.2d 397, 404 (Tex. 1993). In a survival action, the actionable wrong is that which the decedent suffered before his death for which he would have been able to bring an action had he lived. See Russell, 841 S.W.2d at 345; In re Jindal Saw Ltd., 264 S.W.3d 755, 765–66 (Tex. App.—Houston [1st Dist.] 2008, orig. proceeding). “Any recovery obtained flows to those who would have received it had he obtained it immediately prior to his death—that is, his heirs, legal representatives and estate.” Russell, 841 S.W.2d at 345. The parties to a survival action seek adjudication of the decedent’s own claims for the alleged injuries inflicted upon him by the defendant, and the decedent’s survival claim becomes part of his estate at death. See Austin Nursing Ctr., 171 S.W.3d at 850. Harris County argues that Gantt’s TCHRA cause of action does not survive his death because (1) Chapter 21 of the Labor Code does not contain any provision that allows for such a claim to survive, and (2) although the Texas Survival Statute allows for a cause of action for personal injury to survive the plaintiff’s death, it does not apply to a cause of action for discrimination. Harris County argues that because Gantt admitted that he suffered no physical injuries, his TCHRA cause of action is not one that fits within the parameters of the Survival Statute. Thus, Harris County contends the Survival Statute does not apply here. We disagree. As noted above, the Texas Survival Statute applies to personal injuries to the health, reputation, or body of the injured person. TEX. CIV. PRAC. & REM. CODE § 71.021. Mental anguish damages are recoverable in an action under the Survival Statute. See Kramer, 858 S.W.2d at 403; Bedgood v. Madalin, 600 S.W.2d 773, 775–76 (Tex. 1980); see also Livingston v. Gregurek, 650 S.W.3d 721, 726 (Tex. App.—Houston [14th Dist.] 2022, no pet.) (“Survival action claimants on the other hand, seek recovery for the personal injuries, pain and suffering, mental anguish, and other damages the decedent sustained before his death.”); Cortez ex rel. Est. of Puentes v. HCCI-San Antonio, Inc., 131 S.W.3d 113, 120 (Tex. App.—San Antonio 2004), aff’d, 159 S.W.3d 87 (Tex. 2005) (“Texas courts recognize the recovery of mental anguish damages in an action under the Texas Survival Statute.”). Some courts have also expressly held that mental anguish is a “personal injury” under Texas law. City of Alamo v. Casas, 960 S.W.2d 240, 259 (Tex. App.—Corpus Christi–Edinburg 1997, pet. dism’d by agr.) (“Mental anguish is considered a personal injury under Texas law.”); Wyler Indus. Works, Inc. v. Garcia, 999 S.W.2d 494, 510 (Tex. App.—El Paso 1999, no pet.) (same). The TCHRA is a comprehensive fair employment practices act modeled after Title VII of the federal Civil Rights Act of 1964 (Title VII), see 42 U.S.C. §§ 2000e to 2000e-17, which provides the framework for employment discrimination claims in Texas. Prairie View A& M Univ. v. Chatha, 381S.W.3d500, 502–03(Tex. 2012). It was “enacted to address the specific evil of discrimination and retaliation in the workplace.” City of Waco v. Lopez, 259 S.W.3d 147, 153–54 (Tex. 2008) (citing TEX.LAB.CODE § 21.001(4)); cf. McKennon v. Nashville Banner Pub. Co., 513 U.S. 352, 358 (1995) (“Congress designed the remedial measures in [Title VII] to serve as a ‘spur or catalyst’ to cause employers ‘to self-examine and to self-evaluate their employment practices and to endeavor to eliminate, so far as possible, the last vestiges’ of discrimination.”). By enacting the TCHRA, the Legislature created a comprehensive remedial scheme that grants extensive protections to employees in Texas, implements a comprehensive administrative regime, and affords carefully constructed remedies. These protections and related restrictions are expressly extended to public employees. Id. One of the TCHRA’s objectives is to “secure for persons in this state, including persons with disabilities, freedom from discrimination in certain employment transactions, in order to protect their personal dignity[.]” TEX. LAB. CODE § 21.001(4). Furthermore, the TCHRA expressly authorizes recovery for mental anguish damages. See id. § 21.2585(d); see also Hoffmann-La Roche Inc. v. Zeltwanger, 144 S.W.3d 438, 446 (Tex. 2004) (TCHRA authorizes compensatory damages award, including damages for emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, and other nonpecuniary losses, upon finding that employer engaged in unlawful intentional employment practice). In his petition, Gantt sought to recover mental anguish damages in the past and future, as well as damages for “emotional pain.” Considering the objectives of the TCHRA and that the TCHRA authorizes recovery for mental anguish damages, we conclude that a TCHRA cause of action is analogous to the personal injury torts contemplated by the survival statute and that such personal injury causes of action do not abate because of the death of the injured person. Accordingly, we hold that Gantt’s TCHRA employment discrimination action falls within the ambit of the Texas Survival Statute, and thus, survived his death. See Cortez, 131 S.W.3d at 120 (holding plaintiff’s intentional infliction of emotional distress claim survived plaintiff’s death under Texas Survival Statute because mental anguish damages are recoverable for actions thereunder). We are persuaded by other courts’ decisions holding similar causes of action, including statutory causes of action, survive the plaintiff’s death under the Texas Survival Statute. For example, the Southern District of Texas determined that a Title VII racial discrimination claim survived the plaintiff’s death under the Texas Survival Statute.[6] See Hamilton v. Rogers, 573 F. Supp. 452, 453–54 (S.D. Tex. 1983). In Hamilton, the plaintiff filed suit under Title VII and other federal statutes protecting civil rights, alleging racial discrimination against the City of Houston Fire Department and others. Id. at 452. The plaintiff asserted that, because of the racial discrimination, he suffered “mental and emotional distress” that caused “high blood pressure and other health problems.” Id. at 453. While his action was pending, the plaintiff died. Id. The federal district court noted that Texas did not have a survival statute specifically covering the civil rights guaranteed under Texas law but that the state’s general survival statute, now codified in Section 71.021, allowed for causes of action for personal injuries to the plaintiff’s health, reputation, or body to survive. Id. at 453–54. To determine whether the Title VII and other civil rights claims survived, the federal district court considered the Texas Supreme Court’s opinion in Vassallo v. Nederl-Amerik Stoomv Maats Holland, 344 S.W.2d 421, 426 (Tex. 1961). There, the Texas Supreme Court explained the purpose of the Texas Survival Statute was to allow “any cause of action, whenever arising and regardless of what law it arises under, [to] not be abated by death.” Id. at 454. Based on the Texas Supreme Court’s expansive interpretation of the survival statute in Vassallo, the district court in Hamilton held that the plaintiff’s claims under Title VII and the other federal statutes at issue survived his death. Id. Additionally, the El Paso Court of Appeals held that a plaintiff’s retaliation claims under the Texas Whistleblower Act survived his death under the Texas Survival Statute. See Upton Cnty.,Tex. v. Brown, 960 S.W.2d 808, 816 (Tex. App.— El Paso 1997, no pet.). There, the plaintiff filed suit against his former employer, Upton County, alleging he was terminated in violation of the Texas Whistleblower Act because he reported his employer’s violation of laws. Id. at 811. After filing suit, the plaintiff died. Id. at 812. The court used an expansive interpretation of the Survival Statute’s phrasing of “personal injury to the health, reputation, or person,” analogizing a whistleblowing claim for retaliatory discharge to the injuries contemplated in the Survival Statute and holding that the cause of action was recoverable. Id. at 816–17. Finally, in a relatively recent order, the Southern District of Texas considered the very question at issue here, i.e., whether the plaintiff’s discrimination claim under the TCHRA survived his death under the Texas Survival Statute. See Nall v BNSF Ry. Co., No. 4:14-CV-02819, 2019 WL 2716756, at *2–3 (S.D. Tex. June 28, 2019) (order). In Nall, the federal district court noted that neither federal courts nor Texas state courts had specifically addressed whether a TCHRA claim survives under the Survival Statute. Id. The district court, considering many of the same cases outlined above, noted that courts have consistently held that causes of action like TCHRA claims survive after a plaintiff’s death under Section 71.021. See id. The district court explained: Texas courts have consistently construed the Texas Survival Statute broadly and seem willing to encompass a broad range of causes of action and have often done so without providing an in-depth explanation as to why the causes of action are an injury to the health, reputation, or body. Therefore, the Court is persuaded that Texas courts applying this Texas statute would find [the plaintiff's] TCHRA claim to be covered and thus survive. Further, the survival of [the plaintiff's] claim directly coincides with the purpose of the TCHRA. As such, the weight of authority indicates that the TCHRA claim should survive [the plaintiff's] death. Id. at *3. In liberally construing the purposes of the TCHRA, we agree that a cause of action under the TCHRA should survive the death of the plaintiff. As our sister court held with respect to Whistleblower Act causes of action, “[t]o hold otherwise would be to ignore the intent of the Legislature in enacting the [TCHRA] and to allow violators to escape the legislative intent simply because their victims suffered the tragedy of death [after] initiating suit.” Upton Cnty., 960 S.W.2d at 817. But our analysis does not end there. Because this is a case brought against Harris County, a governmental entity, Gantt must demonstrate a clear and unambiguous waiver of immunity. See TEX.GOV’T CODE § 311.034. Harris County concedes that “there is a waiver of immunity for an employee to file a claim for racial discrimination . . . under [the TCHRA],” but contends there is no waiver of immunity for a survivorship claim under the TCHRA when that employee dies. It claims that because there is no statutory provision that evidences a clear and unambiguous waiver of immunity for a survivorship claim arising from race discrimination, immunity has not been waived and the trial court properly granted the plea to the jurisdiction. But Harris County’s argument misinterprets the nature of a survival action. As noted above, the Texas Survival Statute, which we have already determined applies to Gantt’s TCHRA cause of action, “is wholly derivative of the decedent’s rights.” Russell, 841 S.W.2d at 345. With a survival action, there is no new cause of action created; it merely permits the injured decedent’s cause of action to survive his death. Kramer, 858 S.W.2d at 404. Most importantly, the case law is clear that the actionable wrong is that which the decedent suffered before his death for which he would have been able to bring an action had he lived. See Russell, 841 S.W.2d at 345; In re Jindal Saw Ltd., 264 S.W.3d at 765–66. Furthermore, the parties to a survival action seek adjudication of the decedent’s own claims for the alleged injuries inflicted upon him by the defendant, and the decedent’s survival claim becomes part of his estate at death. See Austin Nursing Ctr., 171 S.W.3d at 850. There is no dispute that the TCHRA contains a clear and unambiguous waiver of immunity and that Gantt, while alive, was entitled to bring a civil action against Harris County under that statute. See Mission Consol. Indep. Sch. Dist. v. Garcia, 253 S.W.3d 653, 660 (Tex. 2008) (“The TCHRA defines ‘employer’ to include ‘a county, municipality, state agency, or state instrumentality,’ . . . and prohibits employers from engaging in discriminatory practices[.] Section 21.254 [of the TCHRA] provides that, within sixty days after an employer receives notice of the right to file a civil action, ‘the complainant may bring a civil action against the respondent.’ . . . While this Court has not previously addressed the issue, all the courts of appeals that have considered it have concluded that the TCHRA clearly and unambiguously waives immunity, and we agree.” (citations omitted)). By holding that his TCHRA race discrimination claim survives Gantt’s death, a new cause of action is not created in favor of his heirs, representatives, or his estate. Nor are his heirs, representatives, or estate entitled to recover any damages they have suffered directly. Rather, the recoverable damages are those suffered by the decedent, Gantt, before his death, on his own TCHRA claims. Thus, we hold that the clear and unambiguous waiver of immunity remains intact for TCHRA claims pursued through a survival action. Because we have held that Gantt’s TCHRA cause of action survived his death and immunity was waived for his TCHRA claim, pursued now through a survival action, we hold that the trial court erred in granting Harris County’s plea to the jurisdiction. We sustain Gantt’s first and second issues. Conclusion We reverse the trial court’s order granting Harris County’s plea to the jurisdiction and remand for further proceedings. Amparo Guerra Justice Panel consists of Justices Goodman, Hightower, and Guerra.
