The opinion
TUTTLE,
concurring in part and dissenting in part:
I agree with the majority opinion on the § 1983 issue.
I respectfully dissent from that portion of the majority opinion which holds that Article 6252-16 of Vernon’s Revised Civil Statutes of Texas meets the two-part test set up in § 706(c) of Title VII, 42 U.S.C. § 2000e-5(c), for determining when a private party must defer to state proceedings before filing a charge with the EEOC.
I agree that the Texas law, which makes a violation of its provisions a misdemeanor, does indeed prohibit the type of discrimination alleged in White’s complaint, thus distinguishing this case from Neuces County Hospital District v. E. E. O. C., 518 F.2d 895 (5th Cir. 1975). However, I do not believe that General Insurance Company of America v. E. E. O. C., 491 F.2d 133 (9th Cir. 1974), can be meaningfully distinguished from this case, and I am persuaded by the reasoning of that Ninth Circuit decision.
In that case the Ninth Circuit addressed the precise issue now before us. ■ A Washington statute prohibited wage discrimination due to sex and made violations a mis *910 demeanor. The court held that the state law did not establish or authorize a state or local authority either to seek relief or to institute criminal proceedings. In reaching this conclusion, the court stated:
We reject the argument of appellee that the state or county prosecuting attorney can qualify as such agency through his general authority to institute criminal proceedings. What the section requires is a showing of such state concern in the specific area of unfair employment practices as to result in the establishment or authorizing of an agency to act in this area. If it had been intended that the general authority of the state attorney to prosecute crime should suffice, there would have been no need to provide that the state or local authority should be empowered to institute criminal proceedings. All that would have been necessary would have been to make the offense a crime.
491 F.2d at 135 . See also Curry v. Continental Airlines, 513 F.2d 691 (9th Cir. 1975).
The case now before us differs from General Insurance only in that the Texas statute designates district or county attorneys “as the appropriate state or local official to receive the notice of an alleged unlawful practice occurring in this state from the Equal Employment Opportunity Commission.” While the majority opinion finds in this provision a means for distinguishing General Insurance, I do not. A state cannot qualify itself for deferral merely by designating an official to receive notice, for § 706(c) of Title VII sets up the test for determining when deferral is required. Notice to a representative of the state becomes a concern only if that test is first satisfied, and that depends upon whether the state statute meets the dual requirements of prohibiting the alleged acts and setting up an authority to deal with the problem. Even if the Texas statute was intended to take advantage of the deferral provision of Title VII, 1 those intentions alone are insufficient if the statutory scheme falls short of the § 706(c) test.
Deferral under section 706(c) has been viewed as a jurisdictional prerequisite to the institution of a suit in federal court. See Love v. Pullman Co., 404 U.S. 522 , 92 S.Ct. 616 , 30 L.Ed.2d 679 (1972). Thus, its terms must be strictly construed. The notice provision of the Texas statute, by specifically speaking in terms of notice from the E.E.O.C., rather than from a private litigant, does not act to put an aggrieved person on notice that he or she is required to take some additional step before filing a charge with the E.E.O.C. Since the Supreme Court’s decision in Love v. Pullman, it has been common practice for the E.E. O.C. to assist private litigants in meeting the Title VII deferral requirement by holding the charge and notifying the appropriate state officials. Thus, the language of the Texas statute combined with common E.E.O.C. practice could serve to mislead a plaintiff into believing that no further action was required. The Texas statute makes absolutely no mention of notice from a private litigant. It seems patently unfair to penalize a plaintiff in this situation, where deferral is a jurisdictional prerequisite only if the state meets the requirements set out in Title VII and where the state’s asserted effort at fulfilling those requirements has contributed to the plaintiff’s confusion by speaking only of notice from the E.E.O.C.
The majority opinion emphasizes the availability of injunctive relief under the Texas statute. However, unless the majori *911 ty is suggesting that a Texas state court can fulfill the Title VII requirement of “a State or local authority [authorized or established] to grant or seek relief from such practice,” then the availability of a civil remedy alone is not enough. I interpret the words “State or local authority” to mean an agency of some sort specifically authorized to aid aggrieved persons in obtaining relief from employment discrimination. Whether an injunction from a state court would have been “an ideal way” for Mrs. White to have proceeded is irrelevant unless the Texas statute fulfills the deferral requirements of Title VIL I simply cannot accept the implication in the majority’s opinion that a state court could serve as a “state or local authority” of the kind envisioned in section 706(c). Admittedly, a court is empowered to grant relief, but it has never been viewed as an agency.
Hence, since I agree with the Court of Appeals for the Ninth Circuit that section 706(c) requires more than the general authority of a district attorney to prosecute crimes and since I cannot view a state court as an agency authorized to grant or seek relief for victims of employment discrimination, I would hold that the district court had jurisdiction of White’s Title VII claim.
. The Texas statute was enacted in 1967 and amended in 1971 to include sex discrimination within its prohibitions. Section 4, the notice section, provides for notice to the state official from the E.E.O.C. “as provided for in Section 706(c)” of Title VII. At the time the Texas statute was enacted and amended, § 706(c) dealt with deferral when charges were filed by a member of the E.E.O.C. and required the E.E.O.C. to notify appropriate state officials, if there were any, before taking any action on the charge. That section has since been relettered and is the current § 706(d), 42 U.S.C. § 2000e-5(d). What is now § 706(c) was then § 706(b), and it deals with deferral when a charge is filed by a private party. Thus, it can be argued that the Texas statute, by specifically referring to the then § 706(c) but ignoring § 706(b), does not even address deferral in the kind of case now before us, where the charge has been filed by a private party.