dissenting.
This is an interlocutory appeal by the Texas Department of Criminal Justice— Institutional Division (“TDCJ”) from an order by the trial court denying TDCJ’s plea to the jurisdiction and denying TDCJ’s motion for summary judgment. The majority initially finds we have jurisdiction over the appeal and then holds “as a matter of law,” that “TDCJ did not have actual notice that its fault produced or contributed to the accident.” Because I disagree with the majority’s analysis of the current law applicable to both rulings, I respectfully dissent.
APPELLATE JURISDICTION
The majority concludes we have jurisdiction over this appeal by retroactively applying the 2005 amendment to section 311.034 of the Code Construction Act to the instant litigation. See Tex. Gov’t Code Ann. § 311.034 (Vernon Supp.2005). As noted by the majority, although the amended version of section 311.034 took effect on September 1, 2005, the statute is silent regarding whether the amendment is to be applied retroactively, i.e., to suits pending as of its effective date. The majority also notes the fact that Simons filed suit against TDCJ on August 28, 1996.
The majority recognizes that the Texas Constitution prohibits ex post facto laws. Tex. Const, art. I, § 16. However, the majority fails to recognize that the Code Construction Act explicitly states that “[a] statute is presumed to be prospective in its operation unless expressly made retrospective.” Tex. Gov’t Code Ann. § 311.022(Vernon 2005) (emphasis added). As both sections 311.022 and 311.034 are found within the Code Construction Act, any interpretation of section 311.034 must be done by harmonizing it with the provisions of the Act, including section 311.022. See Marcus Cable Assocs., L.P. v. Krohn, 90 S.W.3d 697, 706 (Tex.2002); Helena Chem. Co. v. Wilkins, 47 S.W.3d 486, 493 (Tex.2001). By not interpreting it as applicable to pending litigation, section 311.034 harmonizes easily with section 311.022 as section 311.034 is completely silent with regard to retroactive applicability. The majority’s attempt to construe section 311.034 as having retroactive application is “out of harmony” and “inconsistent” with section 311.022. See Helena Chem., 47 S.W.3d at 493. “We must presume that the Legislature intends an entire statute to be effective and that a just and reasonable result is intended.” Id. (citing Tex. Gov’t Code Ann. § 311.021(2), (3) (Vernon 2005)).
By finding that the newly amended section 311.034 is inapplicable to pending liti*912gation, the holding announced in University of Texas Southwestern Medical Center at Dallas v. Loutzenhiser, 140 S.W.3d 351, 365 (Tex.2004), and Texas Department of Criminal Justice v. Simons, 140 S.W.3d 338, 348-49 (Tex.2004), applies to the instant appeal and results in a loss of appellate jurisdiction by this Court. Failure to give notice of a claim as required by Tex. Civ. Prac. & Rem.Code Ann. § 101.101 (Vernon 2005) does not deprive a trial court of subject matter jurisdiction over an action on the claim. Therefore, as was the circumstance following the trial court’s denial of TDCJ’s original plea to the jurisdiction in 2001, the instant appeal must be dismissed as the issue raised by TDCJ— that of the inadequacy of notice — “cannot implicate subject matter jurisdiction.” Si-mons, 140 S.W.3d at 349.
PLEA TO THE JURISDICTION-ACTUAL NOTICE
If section 311.034 were somehow found to have retroactive application, I find that TDCJ fails to prevail on its plea to the jurisdiction and motion for summary judgment. Although the issue of whether a court has subject matter jurisdiction is a question of law, in some cases disputed evidence of jurisdictional facts that also implicate the merits of the case may require resolution by the finder of fact. See Tex. Dep’t of Parks and Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex.2004). Although a plea to the jurisdiction typically challenges the plaintiffs pleadings, ie., complaint that the pleadings do not contain sufficient facts to affirmatively demonstrate the trial court’s jurisdiction, as opposed to a defendant’s challenge of the plaintiffs failure to satisfy a statutory prerequisite to suit (such as notice or venue), if the plaintiffs pleadings 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. See id. at 226-27(citing County of Cameron v. Brown, 80 S.W.3d 549, 555 (Tex.2002)).
However, if a plea to the jurisdiction challenges the existence of jurisdictional “facts,” as is the situation in the instant case, the reviewing court considers relevant evidence submitted by the parties when necessary to resolve the jurisdictional issues raised, as the trial court is required to do. See id. at 227(citing Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 555 (Tex.2000)). “If the evidence creates a fact question regarding the jurisdictional issue, then the trial court cannot grant the plea to the jurisdiction, and the fact issue will be resolved by the factfinder.” Id. at 227-28. “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 to the jurisdiction as a matter of law.” Id. at 228. As I will attempt to demonstrate below, the totality of the facts and circumstances surrounding the events at the time of, and subsequent to, Simons’s accident are sufficient, at least in my humble estimation, to raise a fact issue precluding both TDCJ’s plea to the jurisdiction and no evidence motion for summary judgment.
In Simons, the Supreme Court twice sets out the purpose for the notice provision under section 101.101, viz:
We rejected the Booths’ argument, holding that their literal reading of subsection (c) would defeat the statute’s purpose. We explained:
The purpose of the notice requirement is to ensure prompt reporting of claims in order to enable governmental units to gather information necessary to guard against unfounded claims, settle claims, and prepare for trial.
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If a governmental unit has this subjective awareness of fault, along with the other information to which it is entitled *913under section 101.101(a), then requiring formal, written notice in addition would do nothing to further the purpose of the statute — which is, “to enable governmental units to gather information necessary to guard against unfounded claims, settle claims, and prepare for trial.”
140 S.W.3d at 344, 347 (footnote omitted). Shortly after its reiteration of the notice requirement’s purpose, the Court placed the requirement in an evidentiary context:
We have long held that actual notice is a fact question when the evidence is disputed.7 In many instances, however, actual notice can be determined as a matter of law. There will, of course, be times when subjective awareness must be proved, if at all, by circumstantial evidence.8 But this is not inconsistent with the purpose of section 101.101.
Id. at 348. Thereafter, the Court explicitly refrained from determining whether TDCJ established that it lacked actual notice of Simons’s claim. Id.
The majority examines the facts as set out in our prior opinion along with the additional facts noted in the Supreme Court’s opinion and concludes “as a matter of law” that TDCJ had no actual notice that its fault produced or contributed to Simons’s injuries. I have no quarrel with the proposition noted above that in many instances the question of actual notice can be decided as a matter of law. However, based upon the purpose of the notice requirement and all of the facts and circumstances presented, I find that this particular case is not one of those “many instances.” In our prior opinion, we gave somewhat short-shrift to the events that took place immediately following the accident in which Simons was injured. See Tex. Dep’t of Criminal Justice v. Simons, 74 S.W.3d 138, 142(Tex.App.-Beaumont 2002, pet. granted). There we pointed out that:
[I]n this case, the Department’s safety officers conducted an extensive investigation of a serious injury that occurred while the inmates were operating motor-driven machinery in a supervised work detail. Reports were prepared and promptly submitted to the unit’s safety committee. That notice, sufficient to put the Department on inquiry of its possible fault, is demonstrated by the existence of the safety review actually conducted. The Department did investigate the accident and gather the information it needed to defend Simons’s claim.
Id.
As noted in the Supreme Court’s recitation of the underlying facts, “TDCJ immediately investigated the incident. Within hours it took statements from the work supervisor, Ron Canon, and three inmates who were at the scene.” Simons, 140 S.W.3d at 339. The day after the accident, TDCJ took additional statements from three corrections officers who responded to the accident. Id. at 340. Three days after the accident, while in the hospital and taking the prescription narcotic pain-reliever, Vicodin, Simons was interviewed and absolved everyone present when the accident took place from fault. Id. at 341-42.
It must be pointed out that although the Supreme Court in Simons states that it *914“resolve[s] the issue the parties have presented,” it concludes its opinion by explaining, “[w]e need not determine whether TDCJ established that it lacked actual notice of Simons’s claim.” Id. at 339, 348. Therefore, whatever issue of the parties the Court did resolve, it is quite clear that the Court did not resolve the issue of whether the record indicated TDCJ had subjective awareness of any alleged fault that either produced or contributed to Si-mons’s injuries. See id. at 348. As noted above, a defendant’s subjective awareness may be proven by circumstantial evidence. See Louisiana-Pac. Corp. v. Andrade, 19 S.W.3d 245, 247 (Tex.1999); Mobil Oil Corp. v. Ellender, 968 S.W.2d 917, 921 (Tex.1998); Transp. Ins. Co. v. Moriel, 879 S.W.2d 10, 23 (Tex.1994). The Court in Moriel recognized “the practical difficulty of producing direct evidence” of the actual subjective knowledge of a defendant for purposes of ultimately proving gross negligence. Moriel, 879 S.W.2d at 23. The Court reaffirmed its position that a defendant’s actual subjective knowledge could also be proven by circumstantial evidence. Id.
In the instant case, as TDCJ’s subjective awareness of any alleged fault in producing or contributing to Simons’s injuries is a jurisdictional fact that may be proven circumstantially, I find the record before us raises a genuine issue of material fact thereby defeating both TDCJ’s plea to the jurisdiction and no evidence summary judgment motions. See Miranda, 133 S.W.3d at 228(explaining that appellate review standard for plea to the jurisdiction “generally mirrors that of a summary judgment”). See also Tex.R. Civ. P. 166a(i). “A genuine issue of material fact exists if more than a scintilla of evidence establishing the existence of the challenged element is produced.” Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004). “When determining if more than a scintilla of evidence has been produced in response to a Rule 166a(i) motion for summary judgment, the evidence must be viewed in the light most favorable to the non-movant.” Id. at 601. It has been “repeatedly held that more than a scintilla of evidence exists if the evidence ‘rises to a level that would enable reasonable and fair-minded people to differ in their conclusions.’ ” Id. (quoting Merrell Dow Pharm., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex.1997)).
Under this standard of review, I find the evidence of the immediacy, intensity, scope, and detail of TDCJ’s investigation into the facts and circumstances surrounding Simons’s accident, taken in the light most favorable to Simons, at least raises a fact question as to whether or not TDCJ immediately perceived culpability on its part with regard to the accident. From the acts related in the prior opinions, it could be reasonably argued that TDCJ’s actions were indicative of a “rush-to-judgment” mentality in order to quickly and firmly place blame on Simons alone while at the same time deflecting any fault from the acts or omissions of its supervisory personnel present at the time of the accident. Indeed, as the Supreme Court pointed out: “Simons was cited and disciplined for misconduct in failing to stand clear of the auger as ordered.” Simons, 140 S.W.3d at 341. Furthermore, during the interview of Simons while he was in the hospital, TDCJ’s regional safety officer, Bernard Belvin, told Simons, “We are very sorry that happened[,]” and made the further statement: “We are just trying to make sure if there was a procedure that was done, in doing that, that we could bring it up and prevent it from ever happening this way again. And I know you would want to help us do that.” Id. at 342. What to make, if anything, of these and other facts and circumstances surrounding the accident are not for this Court, but for an ultimate trier of fact. Under the ap*915propriate standards of appellate review, I believe the trial court properly denied TDCJ’s plea to the jurisdiction and no evidence summary judgment motions which only raised the issue of actual notice.
In conclusion, I initially would refuse to retroactively apply section 311.034 to the instant appeal which would require dismissal of the appeal. Failing that, I would find a fact issue presented in the evidence so as to preclude both TDCJ’s plea to the jurisdiction and no evidence summary judgment. Because the majority finds otherwise as a matter of law, I file this dissent.
. In a footnote here, the Court cites to Alvarado v. City of Lubbock, 685 S.W.2d 646, 649 (Tex. 1985), and Lorig v. City of Mission, 629 S.W.2d 699, 701 (Tex.1982).
. Here, the Court’s footnote cites to Louisiana-Pac. Corp. v. Andrade, 19 S.W.3d 245, 247 (Tex. 1999), and adds the following parenthetical, "('A plaintiff may establish the defendant’s mental state by circumstantial evidence.’).”