In The
Court of Appeals
Ninth District of Texas at Beaumont
_________________
NO. 09-18-00236-CV
_________________
JEFFERSON COUNTY, TEXAS, Appellant
V.
LUIS FERNANDO MARTINEZ REYES, Appellee
________________________________________________________________________
On Appeal from the 136th District Court
Jefferson County, Texas
Trial Cause No. D-201,612
________________________________________________________________________
MEMORANDUM OPINION
On remand from the Texas Supreme Court, we consider whether Local
Government Code section 89.004’s presentment requirement is a jurisdictional
statutory prerequisite to Luis Fernando Martinez Reyes’s Texas Tort Claims Act
(“TTCA”) lawsuit. See Tex. Loc. Gov’t Code Ann. § 89.004(a); Reyes v. Jefferson
County, 601 S.W.3d 795, 798 (Tex. 2020). Reyes sued Jefferson County, Texas (the
County) and County employee Lawrence Flanagan, Jr. under the TTCA for injuries
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and property damage resulting from an automobile collision with Flanagan. See Tex.
Civ. Prac. & Rem. Code Ann. § 101.021(1).
The County filed a plea to the jurisdiction arguing Reyes failed to comply
with the presentment requirement in Local Government Code section 89.004.1 See
Tex. Loc. Gov’t Code Ann. § 89.004(a). Specifically, the County asserted that it was
a statutory prerequisite to suit and was therefore, jurisdictional. The trial court denied
the plea to the jurisdiction, which the County challenged in an interlocutory appeal.
See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(8). In response, Reyes argues
that the trial court properly denied the County’s plea to the jurisdiction because a
letter sent to the County’s Risk Department substantially complied with section
89.004 of the Local Government Code. See Tex. Civ. Prac. & Rem. Code Ann. §
101.101; Tex. Loc. Gov’t Code Ann. § 89.004(a). For the following reasons, we
affirm.
Background
Reyes’s live pleading alleges he was injured on April 19, 2016, when a vehicle
driven by Flanagan while he was in the course and scope of his employment with
1
Reversing our earlier decision and relying on Worsdale v. City of Killeen,
578 S.W.3d 57 (Tex. 2019), the Texas Supreme Court determined that because the
County had actual notice, the TTCA’s notice requirement was satisfied. See Reyes
v. Jefferson County, 601 S.W.3d 795, 798 (Tex. 2020). Accordingly, we limit our
analysis to section 89.004’s presentment requirement operated as a jurisdictional
statutory prerequisite to Reyes’s TTCA lawsuit. See Tex. Loc. Gov’t Code Ann. §
89.004(a).
2
the County, negligently collided with Reyes’s vehicle. After a series of
correspondence between Reyes’s attorney and the County’s third-party claims
administrator, the County denied Reyes’s claim. 2
Reyes filed his original petition suing the County and Flanagan under the
TTCA on April 17, 2018. The County filed its plea to the jurisdiction and a separate
motion to dismiss Flanagan from the lawsuit.3 In its plea to the jurisdiction, the
County argued Reyes did not comply with the presentment provision of Local
2
The first letter dated June 1, 2016, was addressed to “Risk Management
Jefferson County[.]” The correspondence in its entirety reads as follows:
Please be advised that I represent the above claimant in a cause
of action for very serious bodily injury and property damage caused by
the negligence of your insured on the above date. I have been assigned
an undivided interest in the claimant’s cause of action and would
request that all communications concerning my client be directed only
to me. Please send me a copy of the crash report, copies of all statements
taken from my client, if any, and contact my assistant, Cynthia
Rodriguez Aguirre, to acknowledge the receipt of this letter. I look
forward to working with you toward a quick and amicable resolution of
this claim. [CR SUPP 13]
In the “RE:” heading, the letter further provided the date of loss, Reyes’s name, and
Flanagan’s name. In response, Tristar Risk Management (Tristar) sent a letter dated
June 21, 2016, to Reyes’s counsel and advised it was a “Third Party Administrator
contracted by Jefferson County, Texas to investigate and handle claims within their
Self Insured Retention.” The letter from Tristar provided a claim number, and
indicated their client was the County. Thereafter, on June 29, 2016, Tristar sent
another letter to Reyes’s counsel stating “[a]fter an investigation of the facts, the
County of Jefferson must deny your client’s claim. Our investigation failed to find
any negligent conduct on the part of the County or its employees which proximately
caused your client’s damages.”
3
Reyes subsequently amended his petition, omitting Flanagan as a defendant.
3
Government Code section 89.004, and because the provision was a jurisdictional
statutory prerequisite to suit, Reyes’s failure to comply deprived the trial court of
jurisdiction. See Tex. Loc. Gov’t Code Ann. § 89.004(a). At the hearing on the plea
to the jurisdiction, the trial court indicated it did not believe section 89.004 was
jurisdictional and denied the County’s plea on that basis.4 The County proceeded
with this interlocutory appeal. See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(8).
Standard of Review
“Sovereign immunity from suit defeats a trial court’s subject matter
jurisdiction and thus is properly asserted in a plea to the jurisdiction.” Tex. Dep’t of
Parks & Wildlife v. Miranda, 133 S.W.3d 217, 225–26 (citing Tex. Dep’t of Transp.
v. Jones, 8 S.W.3d 636, 637 (Tex. 1999)). A plea to the jurisdiction is a dilatory plea
typically used to defeat a plaintiff’s cause of action regardless of whether the claims
have merit. Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000). We
review a trial court’s ruling on a plea to the jurisdiction based on immunity from suit
under a de novo standard. Miranda, 133 S.W.3d at 226. When doing so, we examine
the factual allegations contained in the pleadings and relevant jurisdictional
evidence. See City of Elsa v. Gonzalez, 325 S.W.3d 622, 625–26 (Tex. 2010); Bland,
34 S.W.3d at 555. When pleadings are challenged by a plea to the jurisdiction, a
4
Although the trial court stated its basis for denying the plea to the jurisdiction
at the hearing, the trial court does not include this basis in its order.]
4
court must determine if the pleader has alleged facts affirmatively demonstrating the
court’s jurisdiction, and the court must liberally construe the pleadings. Miranda,
133 S.W.3d at 226 (citing Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d
440, 446 (Tex. 1993)). “However, if 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, as the trial court is
required to do.” Miranda, 133 S.W.3d at 227 (citing Bland, 34 S.W.3d at 555). In
that situation, our review of a plea to the jurisdiction is similar to a traditional motion
for summary judgment. See id. at 228. Resolving the issue before us also involves
statutory construction, which we likewise review de novo. See City of DeSoto v.
White, 288 S.W.3d 389, 394 (Tex. 2009).
Analysis
We are tasked with addressing whether the trial court improperly denied the
County’s plea to the jurisdiction and whether Local Government Code section
89.004’s presentment requirement operated as a jurisdictional statutory prerequisite
to Reyes’s TTCA lawsuit. See Reyes, 601 S.W.3d at 798; see also Tex. Loc. Gov’t
Code Ann. § 89.004(a). The County contends that section 89.004 is a statutory
prerequisite to suit, and since section 311.034 of the Code Construction Act made
statutory prerequisites to suit jurisdictional, the trial court improperly denied its plea.
5
In response to the Texas Supreme Court’s Loutzenhiser decision, which
concluded that the TTCA’s presuit notice requirement was not jurisdictional, the
legislature amended the Code Construction Act in 2005. See Univ. of Tex. Sw. Med.
Ctr. at Dall. v. Loutzenhiser, 140 S.W.3d 351, 360–65 (Tex. 2004), superseded by
statute by Act of May 25, 2005, 79th Leg., R.S., ch. 1150, § 1, 2005 Tex. Gen. Laws
3783, 3783 (codified at Tex. Gov’t Code Ann. § 311.034). The 2005 amended statute
added the last sentence and regarding waivers of sovereign immunity, provided that
[i]n order to preserve the legislature’s interest in managing state fiscal
matters through the appropriations process, a statute shall not be
construed as a waiver of sovereign immunity unless the waiver is
effected by clear and unambiguous language. In a statute, the use of
“person,” as defined by Section 311.005 to include governmental
entities, does not indicate legislative intent to waive sovereign
immunity unless the context of the statute indicates no other reasonable
conclusion. Statutory prerequisites to a suit, including the provision of
notice, are jurisdictional requirements in all suits against a
governmental entity.
Tex. Gov’t Code Ann. § 311.034 (emphasis added).5 This amendment indicates the
“Legislature’s intent that all statutory prerequisites are now jurisdictional
requirements as to governmental entities and are properly addressed in a plea to the
jurisdiction.” Prairie View A&M Univ. v. Chatha, 381 S.W.3d 500, 511 (Tex. 2012).
5
Years before this statutory amendment, the Texas Supreme Court treated the
presentment requirement as nonjurisdictional. See Essenburg v. Dallas Cty., 988
S.W.2d 188, 189 (Tex. 1998).
6
Texas Local Government Code section 89.004 states:
(a) Except as provided by Subsection (c), a person may not file suit on
a claim against a county or an elected or appointed county official in
the official’s capacity as an appointed or elected official unless the
person has presented the claim to the commissioners court and the
commissioners court neglects or refuses to pay all or part of the claim
before the 60th day after the date of the presentation of the claim.
(b) If the plaintiff in a suit against a county does not recover more than
the commissioners court offered to pay on presentation of the claim, the
plaintiff shall pay the costs of suit.
(c) A person may file a suit for injunctive relief against a county. After
the court’s ruling on the application for temporary injunctive relief, any
portion of the suit that seeks monetary damages shall be abated until
the claim is presented to the commissioners court and the
commissioners court neglects or refuses to pay all or part of the claim
by the 60th day after the date of the presentation of the claim.
Tex. Loc. Gov’t Code Ann. § 89.004.
In order to determine whether section 89.004 is jurisdictional, we must first
determine whether the provision qualifies as a “statutory prerequisite” pursuant to
section 311.034. See Chatha, 381 S.W.3d at 512; Jefferson Cty. v. Farris, 569
S.W.3d 814, 826–27 (Tex. App. —Houston [1st Dist.] 2018, pet. denied). The phrase
“statutory prerequisite” has three parts: (1) a prerequisite must be found in the
relevant statutory language; (2) the prerequisite must be a requirement; and (3) the
requirement must be met before suit is filed. See Chatha, 381 S.W.3d at 512
(citations omitted); Farris, 569 S.W.3d at 826–27. “‘[S]tatutory prerequisite’ refers
to statutory provisions that are mandatory and must be accomplished prior to filing
suit.” Chatha, 381 S.W.3d at 512.
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To satisfy the first of Chatha’s “statutory prerequisite” components, the
“prerequisite must be found in the relevant statutory language.” Id. Here, that means
the presentment prerequisite must be found in the TTCA, which provides the express
waiver of immunity allowing Reyes to sue for tort claims. The County’s argument
assumes that the “relevant statutory language” is section 89.004. We disagree with
this. “Statutory prerequisites” referenced in section 311.034 of the Code
Construction Act apply to “waivers of governmental immunity.” See Tex. Gov’t
Code Ann. § 311.034; Kaelin v. Crago, No. 13-16-00226-CV, 2017 WL 371489, at
*2 (Tex. App.—Corpus Christi Jan. 26, 2017, pet. denied). Section 89.004 does not
provide any waiver of immunity and is not found in the TTCA, rather it is found in
the Local Government Code chapter dealing with administration of counties. See
Tex. Loc. Gov’t Code Ann. ch. 89; see also Farris, 569 S.W.3d at 827.
Section 89.004 also falls short with respect to Chatha’s third statutory
prerequisite component, which is that “the requirement must be met before the
lawsuit is filed.” See Chatha, 381 S.W.3d at 512 (emphasis added). Although one
subsection addresses pre-suit presentment, another subsection contemplates certain
situations where presentment will not occur until after suit is filed. Compare Tex.
Loc. Gov’t Code Ann. § 89.004(a), with § 89.004(c). In those circumstances,
abatement, rather than dismissal, is the appropriate remedy. See id. § 89.004(c)
8
(providing that “any portion of the suit that seeks monetary damages shall be abated
until the claim is presented to the commissioners court”).
The County relies heavily on Dallas County v. C. Green Scaping, L.P., 301
S.W.3d 872 (Tex. App.—Dallas 2009, no pet.), decided pre-Chatha. There, the
Dallas Court of Appeals determined that section 89.004’s presentment requirement
was a statutory prerequisite to suit. See id. at 878–79. It reasoned that “prerequisite
to suit” was undefined by statute, but “common usage implies that the requirement
is to be fulfilled before a lawsuit is filed.” Id. at 878 (citations omitted). However,
other courts of appeals have reached the opposite conclusion following Chatha. See
Farris, 569 S.W.3d at 827; Kaelin, 2017 WL 371489, at *2. The County made
similar arguments in Jefferson County v. Farris, another recent TTCA case, which
our sister court of appeals in Houston rejected. 569 S.W.3d at 825–28. We find that
court’s reasoning and conclusion persuasive.
Section 89.004 fails to meet two of Chatha’s components of a jurisdictional
“statutory prerequisite” contemplated by section 311.034 of the Code Construction
Act applicable to waivers of governmental immunity. We overrule the County’s
issue on appeal.
Conclusion
We hold that section 89.004 is not a statutory prerequisite to suit contemplated
by section 311.034 of the Code Construction Act, and therefore, any failure to
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comply with this presentment provision did not operate as a jurisdictional bar to
Reyes’s TTCA lawsuit against the County. Accordingly, we affirm the trial court’s
order denying the County’s plea to the jurisdiction.
AFFIRMED.
________________________________
CHARLES KREGER
Justice
Submitted on July 9, 2020
Opinion Delivered September 10, 2020
Before McKeithen, C.J., Kreger and Johnson, JJ.
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