Bexar County v. Leticia Votion

Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-14-00629-CV

BEXAR COUNTY,
Appellant

v.

Leticia VOTION,
Appellee

From the 407th Judicial District Court, Bexar County, Texas
Trial Court No. 2013-CI-02670
Honorable David A. Canales, Judge Presiding

Opinion by: Patricia O. Alvarez, Justice

Sitting: Marialyn Barnard, Justice
Patricia O. Alvarez, Justice
Luz Elena D. Chapa, Justice

Delivered and Filed: May 20, 2015

AFFIRMED

Appellant Bexar County was sued by Leticia Votion for injuries she suffered when she

allegedly tripped and fell in a Bexar County facility. Bexar County filed a plea to the jurisdiction,

but it was denied. In this interlocutory appeal, Bexar County argues the trial court erred because,

under the Texas Tort Claims Act (TTCA), it conclusively established it did not timely receive

notice of the claim. Because Bexar County failed to conclusively disprove it had actual notice, we

affirm the trial court’s order.
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BACKGROUND

In August 2011, Leticia Votion was working for a third-party contractor as a housekeeper

in the Frank M. Tejeda Jr. Juvenile Justice Center—a Bexar County facility. Votion asserts that

while vacuuming, she tripped over torn carpet and fell. She contends she fractured her right foot

and ankle; tore tendons and ligaments in her foot, ankle, and leg; and she is unable to continue

working. Votion sued Bexar County; she alleged it was responsible for her injuries because it

knew the carpet was torn and hazardous but failed to repair it before her accident.

In its plea to the jurisdiction, Bexar County argued its governmental immunity was not

waived because Votion did not give Bexar County the statutorily required notice.

In response, Votion proffered evidence that Bexar County timely received actual notice in

compliance with the TTCA.

The trial court denied Bexar County’s plea, and Bexar County appeals.

BEXAR COUNTY’S GOVERNMENTAL IMMUNITY

A Texas county is a governmental unit. See TEX. CIV. PRAC. & REM. CODE ANN.

§ 101.001(3)(B) (West Supp. 2014); Harris Cnty. v. Sykes, 136 S.W.3d 635, 638 (Tex. 2004). A

governmental unit is immune from suit unless its immunity is waived. See TEX. CIV. PRAC. &

REM. CODE ANN. § 101.021 (West 2011) (waiving governmental immunity in certain circum-

stances for personal injury caused by a condition of real property); City of Dall. v. Thompson, 210

S.W.3d 601, 602–03 (Tex. 2006) (per curiam); Tex. Dep’t of Transp. v. Able, 35 S.W.3d 608, 611

(Tex. 2000). A governmental unit may assert its immunity has not been waived—and thus the

trial court lacks subject matter jurisdiction—by filing a plea to the jurisdiction. Tex. Dep’t of Parks

& Wildlife v. Miranda, 133 S.W.3d 217, 225–26 (Tex. 2004); see also Sykes, 136 S.W.3d at 638.

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STANDARD OF REVIEW

For an appeal of a trial court’s decision on a plea to the jurisdiction, we review de novo the

question of whether the trial court has subject matter jurisdiction. Miranda, 133 S.W.3d at 226

(citing Tex. Natural Res. Conservation Comm’n v. IT-Davy, 74 S.W.3d 849, 855 (Tex. 2002)); see

also TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(8) (West 2014) (authorizing an interlocutory

appeal for the grant or denial of a governmental unit’s plea to the jurisdiction). We review the

plea to the jurisdiction evidence like “that of a [traditional] summary judgment.” Miranda, 133

S.W.3d at 228 (referencing TEX. R. CIV. P. 166a(c)); accord City of El Paso v. Heinrich, 284

S.W.3d 366, 378 (Tex. 2009) (citing Miranda, 133 S.W.3d at 228). “[W]e ‘take as true all

evidence favorable to the nonmovant’ and ‘indulge every reasonable inference and resolve any

doubts in the nonmovant’s favor.’” City of Waco v. Kirwan, 298 S.W.3d 618, 622 (Tex. 2009)

(quoting Miranda, 133 S.W.3d at 228).

PARTIES’ ARGUMENTS

Votion pled and proffered evidence that, inter alia, Bexar County had actual notice of her

claim. As proof, Votion points to (1) the injury report form she gave to a Bexar County employee,

(2) Bexar County’s knowledge of the dangerous carpet condition before her accident, and (3) the

actions taken by Bexar County employees after being informed of her injury. She argues this

evidence shows Bexar County had actual notice including a subjective awareness of its fault.

Bexar County contends Votion’s suit is barred because she did not timely give it formal

written notice of her claim and it acquired no actual notice.

We begin by examining the Texas Tort Claims Act requirements for notice.

NOTICE REQUIREMENTS

“Section 101.101 of the [T]TCA requires a plaintiff to notify a governmental unit of a claim

in order to invoke the waiver of [governmental] immunity.” Univ. of Tex. Health Sci. Ctr. at San
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Antonio v. Stevens, 330 S.W.3d 335, 338 (Tex. App.—San Antonio 2010, no pet.) (citing TEX.

GOV’T CODE ANN. § 311.034 (West 2013)) (referring to section 101.101’s notice requirement as

“a jurisdictional prerequisite”); accord Tex. Dep’t of Criminal Justice v. Simons, 140 S.W.3d 338,

343–44 (Tex. 2004); Cathey v. Booth, 900 S.W.2d 339, 340 (Tex. 1995) (per curiam).

The plaintiff must give the governmental unit notice of the claim “not later than six months

after the day that the incident giving rise to the claim occurred.” TEX. CIV. PRAC. & REM. CODE

ANN. § 101.101(a) (West 2011); see Simons, 140 S.W.3d at 343–44; Stevens, 330 S.W.3d at 338.

“The notice must reasonably describe: (1) the damage or injury claimed; (2) the time and place of

the incident; and (3) the incident.” TEX. CIV. PRAC. & REM. CODE ANN. § 101.101(a); Simons, 140

S.W.3d at 343–44; Stevens, 330 S.W.3d at 338.

However, section 101.101(a)’s formal written notice requirement “do[es] not apply if the

governmental unit has actual notice . . . that the claimant has received some injury.” Simons, 140

S.W.3d at 344 (first alteration in original) (quoting TEX. CIV. PRAC. & REM. CODE ANN.

§ 101.101(c)); accord Cathey, 900 S.W.2d at 340; Stevens, 330 S.W.3d at 338. If the

“governmental unit [has] knowledge of the information it is entitled to be given under section

101.101(a) and a subjective awareness that its fault produced or contributed to the claimed injury,”

it has actual notice. Simons, 140 S.W.3d at 348 (emphasis added); accord Stevens, 330 S.W.3d at

339.

ANALYSIS

As the plaintiff, Votion’s burden is to plead facts showing Bexar County’s immunity is

waived. See Miranda, 133 S.W.3d at 228. As the defendant-movant, Bexar County may meet its

plea to the jurisdiction burden if it conclusively disproves it timely received the statutorily required

notice—either formal written notice or actual notice. See id.; Stevens, 330 S.W.3d at 337–38. In

this case, actual notice would mean Bexar County had knowledge of the information in section
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101.101(a), see TEX. CIV. PRAC. & REM. CODE ANN. § 101.101(a),(c); Simons, 140 S.W.3d at 348,

and a subjective awareness that its fault produced or contributed to Votion’s injury, Simons, 140

S.W.3d at 348; Stevens, 330 S.W.3d at 339. We first consider the evidence pertaining to Bexar

County’s knowledge of the information in section 101.101(a). See Simons, 140 S.W.3d at 348.

A. Evidence of Section 101.101(a) Requirements

To satisfy section 101.101(a)’s requirements, Votion had to give Bexar County, within six

months of the incident, a reasonable description of “(1) the damage or injury claimed; (2) the time

and place of the incident; and (3) the incident.” See TEX. CIV. PRAC. & REM. CODE ANN.

§ 101.101(a); Simons, 140 S.W.3d at 343–44; Stevens, 330 S.W.3d at 338.

In Votion’s affidavit she provided in response to Bexar County’s plea to the jurisdiction,

Votion averred she gave Scott Foley, an office assistant in the Bexar County Juvenile Probation

Department, a completed copy of OSHA Form 301, Injury and Illness Incident Report. The

information Votion asserts she provided on the form includes the following:

• her name as the person injured, see Cathey, 900 S.W.2d at 341;
• a description of the injury to her right foot and ankle, see TEX. CIV. PRAC. & REM. CODE
ANN. § 101.101(a)(1) (“the damage or injury claimed”);
• that she fell at approximately 11:40 am on August 19, 2011, in the Frank M. Tejeda Jr.
Juvenile Justice Center, see id. § 101.101(a)(2) (“the time and place of the incident”);
and
• how she tripped on the “sever[e]ly torn carpet” while she was vacuuming, she fell, and
she was injured, see id. § 101.101(a)(3) (“the incident”).

Votion also insisted she handed the form to Foley—a Bexar County employee—on November 4,

2011, less than three months after the incident. In their affidavits, Votion and Velia C. Garcia—

Votion’s co-worker who was with Votion at the time—averred that Foley accepted the form and

indicated he would give it to the Bexar County office responsible for such matters.

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In Foley’s deposition, he admitted giving Votion the form for her to complete but denied

that Votion gave him the completed form.

Taking Votion’s evidence as true, and “indulg[ing] every reasonable inference and

resolv[ing] any doubts in [her] favor,” we conclude the evidence raises a genuine issue of material

fact on whether Votion timely provided Bexar County with the information required by section

101.101(a). See Kirwan, 298 S.W.3d at 622; Miranda, 133 S.W.3d at 228. Thus, Bexar County

failed to conclusively disprove it received the information within six months of the incident. See

Kirwan, 298 S.W.3d at 622; Miranda, 133 S.W.3d at 228.

We turn next to the evidence pertaining to Bexar County’s alleged “subjective awareness

that its fault produced or contributed to [Votion’s] injury.” See Simons, 140 S.W.3d at 348.

B. Subjective Awareness Requirement

To acquire actual notice, a “governmental unit must have actual, subjective awareness of

its fault in the matter.” Id.; accord Stevens, 330 S.W.3d at 339. “[A] governmental unit cannot

acquire actual notice merely by conducting an investigation, or even by obtaining information that

would reasonably suggest its culpability.” Simons, 140 S.W.3d at 348; accord Stevens, 330

S.W.3d at 339; see also Crane County v. Saults, 101 S.W.3d 764, 769–70 (Tex. App.—El Paso

2003, no pet.). But if a governmental unit’s employee who has “a duty to gather facts and

investigate on behalf of the governmental entity,” Stevens, 330 S.W.3d at 340, actually receives

notice of the incident and is subjectively aware “that [the governmental entity’s] fault produced or

contributed to the claimed injury,” Simons, 140 S.W.3d at 348, then actual notice may be imputed

to the governmental entity, Stevens, 330 S.W.3d at 339. Cf. City of San Angelo v. Smith, 69 S.W.3d

303, 307–08 (Tex. App.—Austin 2002, pet. denied) (“[A]n incident that triggers a separate

investigation and report will likely impute notice to a governmental entity.”).

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If the evidence regarding actual notice is disputed, the matter is a fact question and must

be decided by the fact-finder. Simons, 140 S.W.3d at 348; Miranda, 133 S.W.3d at 227–28;

Stevens, 330 S.W.3d at 341.

C. Evidence of Subjective Awareness

Bexar County argues that because the Bexar County employees Votion allegedly notified

had no duty to investigate her claim, it had no actual notice because it lacked subjective awareness.

See Stevens, 330 S.W.3d at 339–40 (discussing an agent’s or representative’s duty to investigate);

cf. Saults, 101 S.W.3d at 769–70 (concluding no actual notice for lack of evidence that county

“knew or should have known of its potential culpability”).

Under the applicable standard of review, Miranda, 133 S.W.3d at 228, we examine the

evidence pertaining to Bexar County’s subjective awareness of its fault regarding Votion’s injury

including evidence of its personnel with a duty to investigate. See Simons, 140 S.W.3d at 348

(allowing subjective awareness to be proved by circumstantial evidence).

1. Leticia Votion’s Affidavit

In her affidavit, Votion stated the following. On August 19, 2011, she tripped on torn

carpet in the Tejeda building, she fell, and she injured her right ankle and foot. She told Foley of

her injury on November 4, 2011, and the next day, she spoke with Carlos Arizpe, a Bexar County

Building Maintenance Division employee, about her accident and injury.

2. Juan Lecea’s Deposition

In his deposition, Juan Lecea stated the following. He is the Building Maintenance

Division Facilities Manager for the Frank M. Tejeda Jr. Juvenile Justice Center building. He

“oversee[s] the operation of the facility of the Building Maintenance Division.” The Building

Maintenance Division is responsible for repairing the facility’s carpets. One of his duties is to

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regularly “check all the facilities.” He denied that, at the time of the accident, he knew the carpet

where Votion tripped was torn.

3. Carlos Arizpe’s Deposition

In his deposition, Carlos Arizpe stated the following. At the times in question, Arizpe was

a maintenance mechanic in the Building Maintenance Division, and he helped maintain the Tejeda

building. He was trained so that if he noticed a hazardous condition, he must “[f]irst thing report

to my supervisor and, if necessary, make any immediate repair for anything dangerous.” He

reported Votion’s fall and injury to Lecea, and Lecea told him to investigate. He took pictures of

the carpet where Votion tripped, discussed the accident with Votion, and forwarded the pictures

to Lecea.

4. Documents

Eighteen months before Votion’s accident, in a February 26, 2010 e-mail from Arizpe to

Lecea, Arizpe described the carpet in the Tejeda building: “[It is] coming apart at the seams in

some places. This may cause a trip hazard.” In an April 9, 2010 e-mail from Lecea to Alfred

Jimenez, Lecea listed “items that should be considered for FIMP” including one item as “Tejeda

Carpet replacement *******(MAJOR SAFETY HAZARD)*****.” In a November 8, 2011 e-

mail from Arizpe to Lecea, Arizpe stated “Here are the pictures you requested of some of the areas

where the carpet is hazardous.”

D. Imputed Subjective Awareness

Applying the plea to the jurisdiction standard of review, we take Votion’s evidence as true

and make all reasonable inferences in her favor. See Miranda, 133 S.W.3d at 228. We recite the

evidence below in that light.

Lecea was the Facilities Manager for the Tejeda building. Many months before Votion’s

accident, Lecea was aware of the degraded condition of the Tejeda building carpet, including its
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threat as a trip hazard, and reported to other Bexar County officials that the carpet was a “MAJOR

SAFETY HAZARD.” In early November 2011, shortly after Arizpe told Lecea that Votion tripped

on the torn carpet, fell, and was injured, Lecea directed Arizpe to investigate the accident site and

send him pictures of the carpet. Arizpe investigated and sent Lecea the pictures as directed.

Given the evidence showing Lecea’s responsibilities as a Facilities Manager for Bexar

County, his duty to inspect the facilities and report their condition, his foreknowledge of the

carpet’s condition creating a trip hazard, his action ordering Arizpe to investigate, and his report

of the investigation results to others, we conclude that Votion raised a genuine issue of material

fact on whether Lecea was a Bexar County employee that had a duty to investigate. Cf. Smith, 69

S.W.3d at 307–08 (concluding the cumulative evidence imputed subjective awareness to the City).

We also conclude Votion met her burden to raise a genuine issue of material fact on whether Bexar

County had subjective awareness of its fault in producing or contributing to Votion’s injury. See

Simons, 140 S.W.3d at 348; Miranda, 133 S.W.3d at 228.

CONCLUSION

Taken as true, Votion’s evidence shows she raised a genuine issue of material fact on

whether she provided Bexar County with the required information under TTCA section

101.101(a). It also shows Votion raised a genuine issue of material fact on whether Bexar County

had a subjective awareness of its fault in producing or contributing to Votion’s injury. Therefore,

Votion raised a genuine issue of material fact on whether Bexar County had actual notice.

Because actual notice alone satisfies the statutory requirement for notice, we need not

address formal, written notice.

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Bexar County failed to conclusively disprove any essential element of actual notice; it was

not entitled to a grant of its plea to the jurisdiction. Accordingly, the trial court did not err when

it denied the plea, and we affirm the trial court’s order.

Patricia O. Alvarez, Justice

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