NUMBER 13-20-00138-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
CITY OF MISSION, TEXAS, Appellant,
v.
LUCILA GONZALEZ, Appellee.
On appeal from the County Court at Law No. 8
of Hidalgo County, Texas.
MEMORANDUM OPINION
Before Chief Justice Contreras and Justices Benavides and Silva
Memorandum Opinion by Justice Benavides
Appellee Lucila Gonzalez filed suit against appellant City of Mission, Texas (the
City), alleging the City was liable for her slip and fall. By three issues, which we have
reorganized, the City argues the trial court erred in denying its plea to the jurisdiction
because: (1) Gonzalez failed to comply with the notice requirements under § 101.101 of
the Texas Tort Claims Act (TTCA); (2) Gonzalez failed to allege a claim within the TTCA’s
limited waiver of immunity; and (3) even if Gonzalez stated a claim, the City provided
unrefuted evidence that conclusively established a jurisdictional defect. We reverse and
render a judgment of dismissal for want of jurisdiction.
I. BACKGROUND
According to her petition, on the evening of September 24, 2017, Gonzalez was
taking the trash out at her residence when she slipped and fell, striking her right knee on
the ground. It is undisputed that the fall occurred on private property. However, Gonzalez
alleges the area where she fell was muddy “because of negligent repair work to a water
line rupture” by City employees. As part of the repair, City firefighters emptied the water
line across the street from her residence. Gonzalez alleges that the released water flowed
across the street, causing the muddy condition, and that the City was negligent in the
following ways:
A. In failing to maintain such lookout as a person of ordinary prudence
would have maintained under the same or similar circumstances;
B. In failing to properly inspect and maintain the ground in question to
discover the dangerous condition;
C. In failing to maintain the ground in a safe condition;
D. In failing to give warnings to [Gonzalez] of the unsafe condition;
E. In failing to discover and remove the dangerous condition within a
reasonable time;
F. In failing to remedy the situation; and
G. In failing to properly monitor and maintain the water line at issue
herein.
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She also alleges in her petition that she complied with the notice requirements of the
TTCA and that her suit is “authorized by Section 101.0215 of the [TTCA].”
The City filed a plea to the jurisdiction on several grounds, including Gonzalez’s
purported failure to comply with the TTCA’s formal notice requirements. The City attached
a copy of the following letter it received from Gonzalez’s attorney approximately two
months after the incident:
Re: Our Client(s): Lucila Gonzalez
Date of Loss: 09/24/2017
Claim# n/a
Dear Mr. Flores:
This letter is to formally advise you that THE SANCHEZ LAW FIRM has
been retained to represent Lucila Gonzalez in regards [sic] to any and all
claims that she may have against The City of Mission Texas, its agents and
representatives, claims handlers and/or adjusters, with regard to a slip and
fall injury that occurred on the above stated date.
Please address all future correspondence to my attention, at 4842 S.
Jackson Rd., Edinburg, TX 78539. If you have any questions concerning
these matters, please do not hesitate to contact me at (956) 687-7700.
Sincerely,
THE SANCHEZ LAW FIRM
Gonzalez did not file a response to the plea to the jurisdiction.
At the hearing, Gonzalez did not dispute that she failed to comply with the formal
notice requirements; instead, she argued the City had “actual notice” of her claim and
pointed to a police report that was attached “as an Exhibit in my response.” The City
acknowledged the existence of a police report and that “[i]t may provide a description of
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the incident,” but argued “there’s certainly no evidence in the police report, or description,
that shows that the City of Mission would be responsible for any such incident.”
The trial court denied the City’s plea, and this interlocutory appeal followed. See
TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(8)
II. STANDARD OF REVIEW
Subject matter jurisdiction is essential to a court’s authority to decide a case. Bland
Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000) (citing Tex. Ass’n of Bus. v.
Tex. Air Control Bd., 852 S.W.2d 440, 443 (Tex. 1993)). Whether a trial court has subject
matter jurisdiction is a question of law we review de novo. State Dep’t of Highways & Pub.
Transp. v. Gonzalez, 82 S.W.3d 322, 327 (Tex. 2002).
A plea to the jurisdiction is a procedural vehicle used to challenge the trial court’s
jurisdiction. Blue, 34 S.W.3d at 554. When a plea to the jurisdiction “‘challenges the
existence of jurisdictional facts, we consider relevant evidence submitted by the parties
when necessary to resolve the jurisdictional issues raised,’ even where those facts may
implicate the merits of the cause of action.” City of Waco v. Kirwan, 298 S.W.3d 618, 622
(Tex. 2009) (quoting Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 227 (Tex.
2004)). In such cases, the trial court’s review of the plea mirrors that of a traditional motion
for summary judgment. Mission Consol. Indep. Sch. Dist. v. Garcia, 372 S.W.3d 629, 635
(Tex. 2012) (citing Miranda, 133 S.W.3d at 228); see generally TEX. R. CIV. P. 166(a)
(“Summary Judgment”). The defendant carries the initial burden to establish that the trial
court lacks jurisdiction, and if it does, then the plaintiff is required to raise a material fact
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issue regarding the jurisdictional issue. Garcia, 372 S.W.3d at 635 (citing Miranda, 133
S.W.3d at 228). If the evidence creates a fact question regarding jurisdiction, then the trial
court cannot grant the plea to the jurisdiction, and the fact issue will be resolved by the
factfinder; however, if the relevant evidence is undisputed or fails to raise a fact question
on the jurisdictional issue, the trial court rules on the plea as a matter of law. Miranda,
133 S.W.3d at 228.
III. APPLICABLE LAW
Governmental immunity from suit protects the political subdivisions of the State
from lawsuits for money damages and deprives a trial court of subject matter jurisdiction
over the plaintiff’s claims. Reata Const. Corp. v. City of Dallas, 197 S.W.3d 371, 374 (Tex.
2006) (citing Wichita Falls State Hosp. v. Taylor, 106 S.W.3d 692, 694 n.3 (Tex. 2003)).
The TTCA provides a limited waiver of governmental immunity for certain negligent
conduct, including “personal injury . . . caused by a condition . . . of . . . real property if the
governmental unit would, were it a private person, be liable to the claimant according to
Texas law.” TEX. CIV. PRAC. & REM. CODE ANN. §§ 101.021(2), 101.025. Generally, a
plaintiff asserting a premises defect claim must first show that the defendant possessed
(i.e., owned, occupied, or controlled) the premises where the injury occurred. Wilson v.
Tex. Parks & Wildlife Dep’t, 8 S.W.3d 634, 635 (Tex. 1999) (per curiam); Tex. Dept. of
Fam. & Protective Servs. v. Atwood, 176 S.W.3d 522, 532 (Tex. App.—Houston [1st Dist.]
2004, pet. denied). However, “a private person who has created the dangerous condition
may be liable even though not in control of the premises at the time of injury.” City of
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Denton v. Page, 701 S.W.2d 831, 835 (Tex. 1986).
Under the TTCA, a governmental unit must be given notice of a claim against it
“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). This notice requirement is a jurisdictional
prerequisite to filing suit. See TEX. GOV’T CODE ANN. § 311.034; Worsdale v. City of
Killeen, 578 S.W.3d 57, 66 (Tex. 2019). To be effective, written notice of a claim must
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).
Formal notice is not required if the governmental unit has actual notice of the claim.
Id. § 101.101(c). To have actual notice, the governmental unit must have the same notice
it would have received had the plaintiff provided formal written notice under the TTCA,
including subjective awareness of its fault in causing the incident as ultimately alleged by
the plaintiff. City of San Antonio v. Tenorio, 543 S.W.3d 772, 776 (Tex. 2018) (citations
omitted). Thus, “[a] governmental unit has actual notice under the TTCA if it has subjective
knowledge of (1) a death, injury, or property damage; (2) the governmental unit’s fault
that produced or contributed to the death, injury, or property damage; and (3) the identity
of the parties involved.” Id. (citing Cathey v. Booth, 900 S.W.2d 339, 341 (Tex. 1995) (per
curiam)). Actual notice is a fact question when the evidence is disputed but a question of
law when the evidence is undisputed. Id. (citing Simons, 140 S.W.3d at 348).
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IV. ANALYSIS1
By its first issue, the City argues Gonzalez failed to raise a fact question on whether
the City had actual notice of her claim. We agree.
First, the letter of representation Gonzalez sent to the City does not comply with
the written notice requirements of § 101.101 because it fails to reasonably describe the
incident, the injury claimed, or the time and place of the incident. See TEX. CIV. PRAC. &
REM. CODE ANN. § 101.101(a). Merely stating that Gonzalez suffered a “slip and fall injury”
on a given date at an unspecified location and under unidentified circumstances, the letter
failed to provide the level of detail necessary for the City to investigate Gonzalez’s claim.
See Cathey, 900 S.W.2d at 341 (explaining that the purpose of the TTCA’s notice
requirements is to allow “governmental units to gather information necessary to guard
against unfounded claims, settle claims, and prepare for trial”). Gonzalez implicitly
conceded this point at the hearing by arguing in the alternative that the City had “actual
notice” of her claim. Thus, the burden shifted to Gonzalez to at least raise a fact question
on whether the City had actual notice. See Garcia, 372 S.W.3d at 635; Tenorio, 543
S.W.3d at 776.
Although the parties referred to a police report during the hearing, there is no police
report in the record on appeal. When the trial court asked Gonzalez about the report’s
contents, Gonzalez claimed the report was attached as an exhibit to her response, but
Gonzalez did not file a response with the trial court. Instead, the clerk’s record contains a
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Gonzalez elected not to file a brief to assist us with our analysis.
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“Certificate of Written Discovery” filed by Gonzalez stating that she served “Plaintiff’s
Response to Defendant’s Plea to the Jurisdiction” on the City. We have compared the
trial court’s docket sheet with the contents of the clerk’s record, and there are no missing
items from the record. See TEX. R. APP. P. 34.5(a)(3) (requiring the clerk to include a copy
of “the court’s docket sheet” in the appellate record). Therefore, the record before us only
contains counsels’ competing descriptions of the police report during the hearing, neither
of which constitutes evidence. See, e.g., Johnson v. Scott, 113 S.W.3d 366, 373 (Tex.
App.—Beaumont 2003, pet. denied) (“As support for this assertion, Sanders cites her own
counsel’s argument at the fairness hearing. However, motions and arguments of counsel
are not evidence.” (citing McCain v. NME Hosps., Inc., 856 S.W.2d 751, 757 (Tex. App.—
Dallas 1993, no writ))).
The City’s mere acknowledgement of a police report does not raise a fact issue
because the existence of an investigation alone is insufficient to demonstrate actual
notice. See City of Dallas v. Carbajal, 324 S.W.3d 537, 538 (Tex. 2010) (per curiam). “If
a governmental unit investigates an accident, whether the information acquired through
its investigation meets the actual notice requirements of the TTCA depends upon the
particular facts of the case.” Tenorio, 543 S.W.3d at 776; see, e.g., Carbajal, 324 S.W.3d
at 538 (“Simply put, the police report here is no more than a routine safety investigation,
which is insufficient to provide actual notice.”). Here, without the police report or any other
evidence before it, there was no factual basis for the trial court to determine that the City
had actual notice of Gonzalez’s claim. See Tenorio, 543 S.W.3d at 776. Accordingly, the
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trial court erred by denying the City’s plea to the jurisdiction. We sustain the City’s first
issue.2
V. CONCLUSION
We reverse and render a judgment of dismissal for want of jurisdiction.
GINA M. BENAVIDES
Justice
Delivered and filed on the
22nd day of July, 2021.
Because this issue is dispositive, we do not reach the City’s other issues regarding the sufficiency
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of Gonzalez’s pleadings and the existence of jurisdictional facts. See TEX. R. APP. P. 47.1.
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City of Mission, Texas v. Lucila Gonzalez
Combined Opinion