concurring.
I concur with the result reached by the majority, however, I would hold that a fact issue was presented concerning the City of Garland’s timely receipt of actual notice, and that this point of error is persuasive.
The Texas Supreme Court in City of Houston v. Torres, 621 S.W.2d 588, 590 (Tex.1981) recognized that in enacting the Texas Tort Claims Act, article 6252-19 of the Texas Revised Civil Statutes,1 the legislature ratified and approved city charter provisions requiring notice of a claim for injury to person or property within a stated period. The present version of the Texas Tort Claims Act found in section 101.101 of the Texas Civil Practice and Remedies Code provides in part:
(c) The notice requirements provided or ratified and approved by Subsections (a) and (b) do not apply if the governmental unit has actual notice that death has occurred, that the claimant has received some injury, or that the claimant’s property has been damaged.
(Emphasis added). The Texas Supreme Court restricted the Torres case to the facts and chose not to address the applicability of the actual notice exemption of the Texas Tort Claims Act to a proprietary tort. See section 101.101(c). However, the high court recognized in Torres that the established purposes of the “notice of claim” requirement are to ensure a prompt reporting of claims to allow the municipality to investigate while the facts are fresh and conditions remain the same, thereby enabling the city to guard against unfounded claims, settle claims, and prepare for trial. Torres, 621 S.W.2d at 591. Justice Barrow, writing for the majority, specifically stated that there was no evidence, nor contention that the city had actual notice of Torres’s injuries. Id. at 590.
Unlike Torres, in the present case we have a contention of actual notice of a proprietary tort to the city. The record before us reflects that some evidence did exist that the city had timely notice of an injury accident, with opportunity to investigate while the facts were fresh. The evidence includes a report by the Superintendent of Electricity Distribution and Transmission for Garland Power and Light, a department within the City of Garland, concerning a telephone company employee’s injury, on the date and at the site of Borne’s injury.
I would hold that the superintendent’s report definitely raises a fact issue of actual notice to the city and that a favorable fact finding of actual notice would preclude the pro forma necessity for making a timely, city charter-created notice of claim.
. This statute was repealed by Acts 1985, 69th Leg., p. 7218, ch. 959, sec. 9(1); and is presently located in the Texas Civil Practice and Remedies Code sections 101.001 et seq. (Vernon Pamph. 1986) in its revised form. No substantive change in the law was made by the Act; it was merely a recodification of the former statute. Acts 1985, p. 7219 sec. 10.