                                       In The

                                 Court of Appeals

                     Ninth District of Texas at Beaumont

                              _________________

                               NO. 09-17-00161-CV
                              _________________

        TEXAS DEPARTMENT OF CRIMINAL JUSTICE, Appellant

                                          V.

                         NEFTALI CISNEROS, Appellee
________________________________________________________________________

                     On Appeal from the 88th District Court
                             Tyler County, Texas
                           Trial Cause No. 23,261
________________________________________________________________________

                           MEMORANDUM OPINION

      This interlocutory appeal arises from the trial court’s denial of the Texas

Department of Criminal Justice’s (“TDCJ”) plea to the jurisdiction. See Tex. Civ.

Prac. & Rem. Code Ann. § 51.014(a)(8) (West Supp. 2017) (allowing an appeal from

an interlocutory order denying a plea to the jurisdiction by a governmental unit).

Because timely formal notice of the claim was not provided, and TDCJ had no actual

notice, the trial court erred in denying TDCJ’s plea. Accordingly, we reverse the trial

                                          1
court’s order denying TDCJ’s plea to the jurisdiction and render judgment

dismissing appellee Neftali Cisneros’s claims for lack of subject-matter jurisdiction.

                                    Background

      Neftali Cisneros, an offender incarcerated at the Gib Lewis Unit within TDCJ,

filed suit against TDCJ after he was seriously injured in an accident involving a

commercial woodworking saw in the furniture factory within the unit. Cisneros

alleges that as he approached the saw, it was turned off and the power was

disconnected. Another offender assisting Cisneros turned on the saw while Cisneros

used an air hose to clean it. Cisneros came into contact with the saw blades, severing

his right hand and fingers. Cisneros sued TDCJ for negligence.

      In two issues on appeal, TDCJ first alleges that the trial court erred in denying

TDCJ’s plea to the jurisdiction because Cisneros did not give TDCJ timely formal

notice of his claim and TDCJ did not have actual notice of Cisneros’s claim before

suit was filed, and second, TDCJ contends Cisneros failed to plead a cause of action

for which sovereign immunity is waived under the Texas Tort Claims Act

(“TTCA”). TDCJ asserts that the absence of timely notice is an incurable

jurisdictional defect. See Tex. Gov’t Code Ann. § 311.034 (West 2013) (“Statutory

prerequisites to a suit, including the provision of notice, are jurisdictional

requirements in all suits against a governmental entity.”).

                                          2
                                Standard of Review

      “A plea to the jurisdiction is a dilatory plea that seeks dismissal of a case for

lack of subject matter jurisdiction.” Harris Cty. v. Sykes, 136 S.W.3d 635, 638 (Tex.

2004); see City of Dallas v. Carbajal, 324 S.W.3d 537, 538 (Tex. 2010) (per curiam).

“Subject matter jurisdiction is essential to the authority of a court to decide a case.”

Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 443 (Tex. 1993). “If a

governmental unit has immunity from a pending claim, a trial court lacks subject

matter jurisdiction as to that claim.” Univ. of Tex. Health Sci. Ctr. at Houston v.

McQueen, 431 S.W.3d 750, 756 (Tex. App.—Houston [14th Dist.] 2014, no pet.).

Because the existence of subject matter jurisdiction is a question of law, we review

a trial court's ruling on a plea to the jurisdiction de novo. See Houston Belt &

Terminal Ry. Co. v. City of Houston, 487 S.W.3d 154, 160 (Tex. 2016).

      In a plea to the jurisdiction, a defendant may challenge either the plaintiff’s

pleadings or the existence of jurisdictional facts. Tex. Dep’t of Parks and Wildlife v.

Miranda, 133 S.W.3d 217, 226 (Tex. 2004). In this case, TDCJ challenged the

existence of jurisdictional facts. Therefore, this 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. If the evidence creates a fact

question regarding the jurisdictional issue, then the plea to the jurisdiction must be

                                           3
denied, and the fact issue will be resolved by the fact finder. Id. at 227–28. But, if

the relevant evidence is undisputed or fails to raise a fact question on the

jurisdictional issue, then the court rules on the plea to the jurisdiction as a matter of

law. Id. at 228. In ruling on a plea to the jurisdiction, a court does not consider the

merits of the parties’ claims. Id. at 226–28; Cty. of Cameron v. Brown, 80 S.W.3d

549, 555 (Tex. 2002).

      The standard of review for a plea to the jurisdiction based on evidence

“generally mirrors that of a summary judgment under Texas Rule of Civil Procedure

166a(c).” Miranda, 133 S.W.3d at 228; see also Thornton v. Ne. Harris Cty. MUD

1, 447 S.W.3d 23, 32 (Tex. App.—Houston [14th Dist.] 2014, pet. denied). Under

this standard, we take as true all evidence favoring the nonmovant and draw all

reasonable inferences and resolve any doubts in the nonmovant's favor. Miranda,

133 S.W.3d at 228. “[A]fter the state asserts and supports with evidence that the trial

court lacks subject matter jurisdiction, we simply require the plaintiff[ ], when the

facts underlying the merits and subject matter jurisdiction are intertwined, to show

that there is a disputed material fact regarding the jurisdictional issue.” Id.; see also

City of Galveston v. Murphy, 533 S.W.3d 355, 359 (Tex. App.—Houston [14th

Dist.] 2015, pet. denied) (stating that if the movant presents conclusive proof that

the trial court lacks subject matter jurisdiction, then the nonmovant must present

                                           4
evidence sufficient to raise a material issue of fact regarding jurisdiction, or the plea

will be sustained). Thus, because the trial court ruled on TDCJ’s plea to the

jurisdiction, we are compelled to review such ruling from the record before the trial

court at the time of its ruling.

                 The Texas Tort Claim Act’s Notice Requirements

       Absent a waiver, governmental entities, like TDCJ, are generally immune

from suits for damages. See Univ. of Tex. Sw. Med. Ctr. at Dallas v. Estate of

Arancibia, 324 S.W.3d 544, 546 (Tex. 2010). The Texas Tort Claims Act waives

governmental immunity for negligent acts in certain circumstances. See Tex. Civ.

Prac. & Rem. Code Ann. § 101.021 (West 2011). To take advantage of this waiver

and overcome the shield of governmental immunity, a claimant must notify a

governmental unit of the negligent act not later than six months after the incident.

Tex. Civ. Prac. & Rem. Code Ann. § 101.101(a) (West 2011). There are two methods

of accomplishing notice: formal written notice and actual notice. See Arancibia, 324

S.W.3d at 548.

       The purpose of the notice requirement is to ensure prompt reporting of claims

to enable governmental units to gather information necessary to guard against

unfounded claims, settle claims, and prepare for trial. Tex. Dep’t Crim. Justice v.

Simons, 140 S.W.3d 338, 344 (Tex. 2004). The failure to comply with the notice

                                           5
requirements in the Texas Tort Claims Act deprives the trial court of subject matter

jurisdiction. Carbajal, 324 S.W.3d at 537–38.

A. Formal Notice

      Regarding a claim against a governmental unit based on a waiver of immunity

under the Texas Tort Claims Act, the governmental unit is entitled to written 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). “The

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

place of the incident; and (3) the incident.” Id. Formal notice must be submitted in

writing. Cathey v. Booth, 900 S.W.2d 339, 340 (Tex. 1995) (per curiam).

B. Actual Notice

      The Texas Tort Claims Act provides an exception to the written notice

requirement when the governmental unit has “actual notice that . . . the claimant has

received some injury[.]” See Tex. Civ. Prac. & Rem. Code Ann. § 101.101(c). The

Supreme Court of Texas analyzed the notice provisions in the Texas Tort Claims

Act in Cathey v. Booth and held that for a governmental unit to have such actual

knowledge, it requires the governmental unit’s: (1) knowledge of a death, injury, or

property damage; (2) subjective awareness of the governmental unit’s alleged fault

producing or contributing to the death, injury, or property damage; and (3)

                                          6
knowledge of the identity of the parties involved. 900 S.W.2d at 341. The high court

later clarified the meaning of the second requirement by stating that “[w]hat we

intended in Cathey by the second requirement for actual notice was that a

governmental unit have knowledge that amounts to the same notice to which it is

entitled by section 101.101(a).” Simons, 140 S.W.3d at 347. In Simons, the court

explained that this requirement “includes subjective awareness of its fault, as

ultimately alleged by the claimant, in producing or contributing to the claimed

injury.” Id. Subjective awareness is required because if a governmental entity is not

aware of its fault, it does not have the same incentive to gather the information the

statute is designed to provide. Id. at 348. “Fault, as it pertains to actual notice, is not

synonymous with liability; rather, it implies responsibility for the injury claimed.”

Arancibia, 324 S.W.3d at 550.

                                        Analysis

      It is undisputed that Cisneros did not give TDCJ formal notice of his claim as

provided by section 101.101(a) within six months from the date of the accident. See

Tex. Civ. Prac. & Rem. Code Ann. § 101.101(a). Cisneros pleaded that his formal

written grievance at the prison was filed and returned on October 13, 2015, well

outside of the statutory time period. Cisneros argues though, that TDCJ had actual

notice as provided by section 101.101(c).

                                            7
      Texas Department of Criminal Justice v. Simons is analogous to the case

before us. 140 S.W.3d at 339–43. In that case, an inmate was severely injured while

working for the prison. See id. at 339. The incident involved the operation of a tractor

and auger by a prison work supervisor. Id. The auger became stuck in the ground,

and the inmate attempted to back the auger out with a pipe wrench while the power

take-off was disengaged. Id. Although it was not clear exactly how it happened or

whether the work supervisor notified the inmate to stand clear, the power take-off

was re-engaged while the inmate was in the vicinity. Id. This caused the pipe wrench

to swing around and strike the inmate in the head. Id. Just as in the present case,

TDCJ conducted an investigation and took statements from the individuals involved

and witnesses. See id. The work supervisor prepared an “offense report” which cited

the inmate for violating prison rules. Id. at 340. An additional report was prepared

by the prison’s safety officer which again noted the inmate’s violation of safety

policy and procedures. Id.

      The question of whether TDCJ had actual notice was the crucial issue in

Simons. Id. at 343. In resolving disagreement among the various courts of appeals

regarding the holding in Cathey v. Booth, the Texas Supreme Court explained that

case “cannot fairly be read to suggest that a governmental unit has actual notice of a



                                           8
claim if it could or even should have learned of its possible fault by investigating the

incident.” Id. at 347. The Court went on to reason

      [i]t is not enough that a governmental unit . . . did investigate, perhaps
      as part of routine safety procedures, or that it should have known from
      the investigation it conducted that it might be at fault. If a governmental
      unit is not subjectively aware of its fault, it does not have the same
      incentive to gather information that the statute is designed to provide,
      even when it would not be unreasonable to believe that the
      governmental unit was at fault.

Id. at 374–48. The Court ultimately held “that actual notice under section 101.101(c)

requires that a governmental unit have 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.” Id. at 348.

      Cisneros contends that because the injury occurred on the government unit’s

property and was responded to by the prison’s employees and because TDCJ

investigated the incident and produced an official report, actual notice can be

imputed to a governmental unit through an agent or representative who has a duty to

investigate and report to a person of authority. An Administrative Incident Review

was conducted and Serious Incident Report was issued by the TDCJ Emergency

Action Center.

      An investigation into the incident by Furniture Factory Supervisor John
      Risinger and Safety Officer Alan Gordon revealed the following.
      Offender Cisneros was assigned to the Furniture Factory on March 13,
      2004. On this date, Offender Cisneros was given initial safety training
                                          9
      and was assigned to the maintenance department of the Furniture
      factory to perform all maintenance work concerning the upkeep and
      repair of all machinery located in the Furniture Factory. Further
      investigation revealed Offender Cisneros acted irresponsibly and
      without authorization from the mill shop supervisor to work on the
      tenoner [saw] machine that resulted in an unsafe act by turning the
      machine on and failing to use safeguarded methods resulting in his
      injuries. Offender Cisneros received the appropriate disciplinary case
      for his negligent behavior by failing to get a supervisor to lock out the
      machine before he began work on it. (Emphasis added).

The investigation reports do not show TDCJ’s fault. The fact that TDCJ investigated

Cisneros’s accident does not constitute subjective awareness on the part of TDCJ

that its fault produced or contributed to Cisneros’s injury. See id. at 347–48. Indeed,

the results of TDCJ’s investigation indicated Cisneros, not TDCJ, was responsible

for the accident. Cisneros further argues that this court should infer from the trial

court’s order denying TDCJ’s Plea to the Jurisdiction that there is a need for further

discovery to resolve a fact issue regarding TDCJ’s subjective awareness. In

conjunction with his response to TDCJ’s Plea to the Jurisdiction, Cisneros filed a

Motion to Compel discovery and argues that the trial court’s denial of the plea

implies the trial court’s approval of his Motion to Compel. However, no order of the

trial court granting his Motion to Compel discovery is included in the record before

us. Cisneros was charged with obtaining a ruling on his Motion to compel, objecting

if the court refused to rule, or otherwise obtaining a continuance from the trial court

to conduct further discovery. See Tex. R. App. P. 33.1(a)(2).
                                        10
          Under these circumstances, we determine that TDCJ conclusively proved, as

a matter of law, that the trial court lacked subject matter jurisdiction because TDCJ

was not shown to have subjective awareness of its fault, as alleged by Cisneros, in

producing or contributing to Cisneros’s injuries, or otherwise have sufficient notice

pursuant to the Tort Claims Act. See Tex. Civ. Prac. & Rem. Code Ann. § 101.101;

Tex. Gov’t Code Ann. 311.034; Arancibia, 324 S.W.3d at 548–49; City of Keller v.

Wilson, 168 S.W.3d 802, 816 (Tex. 2005) (“Evidence is conclusive only if

reasonable people could not differ in their conclusions[.]”). Cisneros did not present

evidence sufficient to raise a material issue of fact regarding jurisdiction after TDCJ

proved that the trial court lacked jurisdiction; therefore, we hold that the trial court

erred in denying TDCJ’s plea to the jurisdiction, and we render judgment dismissing

Cisneros’s claims. See Miranda, 133 S.W.3d at 228; see also Murphy, 533 S.W.3d

at 359.

       We do not reach the second issue on appeal, as it would afford TDCJ no

greater relief.

                                     Conclusion

       We reverse the trial court’s order denying TDCJ’s plea to the jurisdiction and

render judgment dismissing Cisneros’s claims against TDCJ for lack of subject

matter jurisdiction.

                                          11
      REVERSED AND RENDERED.



                                            ________________________________
                                                    CHARLES KREGER
                                                          Justice

Submitted on November 22, 2017
Opinion Delivered March 1, 2018

Before McKeithen, C.J., Kreger, and Horton, JJ.




                                       12
