BRUNNER v. AL ATTAR
786 S.W.2d 784 (1990)
Court of Appeals of Texas, Houston (1st Dist.).
February 15, 1990.

Tex.Rev.Civ.Stat.Ann. art. 5221k, sec. 1.04(b) (Vernon 1987)². The statute further defines "handicapped person" and "handicap":

(7)(A) "Handicapped person" means a person who has a mental or physical handicap, including mental retardation, hardness of hearing, deafness, speech impairment, visual handicap, being crippled, or any other health impairment that requires special ambulatory devices or services, as defined in Section 121.002(4), Human Resources Code, but does not include a person because he is addicted to any drug or illegal or federally controlled substances or because he is addicted to the use of alcohol.

(B) "Handicap" means a condition either mental or physical that includes mental retardation, hardness of hearing, deafness, speech impairment, visual handicap, being crippled, or any other health impairment that requires special ambulatory devices or services, as defined in Section 121.002(4), Human Resources Code, but does not include a condition of addiction to any drug or illegal or federally controlled substances or a condition of addiction to the use of alcohol.

TEX.REV.CIV.Stat.Ann. art. 5221k, sec. 2.01(7)(A) & (B) (Vernon 1987)³.

In Chevron Corp. v. Redmon,745 S.W.2d 314, 316 (Tex.1987), the Texas Supreme Court held that a plaintiff seeking to recover under article 5221k must first establish

[ 786 S.W.2d 787 ]

that she falls within the protected class: a handicapped person who was not hired because of her handicap. It is not sufficient for the plaintiff to merely establish that she was denied employment "because of handicap" under article 5221k. Id. The explanation of the term "because of handicap" is contained in section 1.04(b) of article 5221k, under the heading "Specific Rules of Construction." Id. "This `rule of construction' simply adds the requirement that before any `handicap' can be the basis of a discrimination action, it must not impair the person's ability to reasonably perform the job." Id. However, the plaintiff must still be "handicapped." Id.

Because Brunner has not alleged that she was handicapped, we cannot hold that she has established that appellees discriminated against her "because of handicap."

We overrule point of error two.

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BRUNNER v. AL ATTAR786 S.W.2d 784 (1990)Court of Appeals of Texas, Houston (1st Dist.).February 15, 1990.

[ 786 S.W.2d 787 ]

Footnotes

BRUNNER v. AL ATTAR
786 S.W.2d 784 (1990)
Court of Appeals of Texas, Houston (1st Dist.).
February 15, 1990.