                                                                                       ACCEPTED
                                                                                  01-14-00808-CV
                                                                        FIRST COURT OF APPEALS
                                                                                HOUSTON, TEXAS
                                                                              1/9/2015 4:20:29 PM
                                                                             CHRISTOPHER PRINE
                                                                                           CLERK



                         No. 01-14-00808-CV
         __________________________________________________
                                                        FILED IN
                                                    1st COURT OF APPEALS
                                                        HOUSTON, TEXAS
                      In the First Court of Appeals
                                                    1/9/2015 4:20:29 PM
                             Houston, Texas
                                                    CHRISTOPHER A. PRINE
         __________________________________________________ Clerk

                                Arlean Green,
                                                            Appellant

                                       v.

                               City of Houston,
                                                       Appellee
         __________________________________________________

      On Appeal from the 269th District Court of Harris County, Texas
                    Trial Court Cause No. 2014-13489
               The Honorable Dan Hinde, Presiding Judge
        __________________________________________________

                   Brief of Appellee City of Houston
         __________________________________________________

David M. Feldman                      Mary E. (Mary Beth) Stevenson
City Attorney                         Assistant City Attorney
                                      State Bar No. 24072366
Judith L. Ramsey                      David L. Red
Chief, General Litigation Section     Senior Assistant City Attorney
                                      State Bar No. 16656900
                                      CITY OF HOUSTON LEGAL DEPARTMENT
                                      900 Bagby Street, 4th Floor
                                      Houston, Texas 77002
                                      832.393.6269 (telephone)
                                      832.393.6259 (facsimile)
                                      marybeth.stevenson@houstontx.gov
                                      david.red@houstontx.gov

                        Attorneys for the City of Houston
                        Identity of Parties and Counsel

       Pursuant to Rule 38.1(a) of the Texas Rules of Appellate Procedure, and
in order that members of this Court may determine disqualifications and
recusal under Rule 16, the Appellee provides the following list of parties and
the addresses of all trial and appellate counsel known at the time of the filing of
this brief.

Plaintiff/Appellant:                         Arlean Green

Counsel for Appellant:                       George Farah
                                             Sarah C. Dionne
                                             Guerra & Farah, PLLC
                                             4101 Washington Ave., 3rd Floor
                                             Houston, Texas 77007

Defendant/Appellee:                          City of Houston

Counsel for Appellee:                        Mary Beth Stevenson
                                             David L. Red
                                             City of Houston Legal Department
                                             900 Bagby, 4th Floor
                                             Houston, Texas 77002

Co-Defendant:                                United Airlines, Inc.

Counsel for Co-Defendant:                    Nicholas E. Zito
                                             Ramey, Chandler, Quinn & Zito, P.C.
                                             750 Bering Drive, Suite 600
                                             Houston, Texas 77057




                                        ii
                                          Table of Contents

                                                                                                       Page

Identity of Parties and Counsel ..................................................................... ii

Index of Authorities ..................................................................................... v
Record References .................................................................................... viii

Statement of the Case .................................................................................. ix

Statement Regarding Oral Argument ............................................................ x
Issue Presented ............................................................................................ x

Statement of Facts........................................................................................ 1

        A.      Green sues and the City files a plea to the jurisdiction
                because it did not receive timely formal or actual notice of
                Green’s claim. ........................................................................... 1

        B.      Green’s response and appellate brief argues the City had
                actual notice because a TSA employee witnessed the fall and
                Green contacted the TSA about the incident. .............................. 2

Summary of the Argument ........................................................................... 3
Argument and Authorities ............................................................................ 4

I.      Standard of Review ............................................................................. 4

II.     Timely notice of a claim under the TTCA is jurisdictional. ................... 5
III.    The City did not receive timely notice of Green’s claim. ....................... 6

        A.      Green gave no timely formal notice. ........................................... 6

        B.      The City had no timely actual notice of the incident. ................... 7
                1.       Alleged notice to a federal agency is not notice
                         to the City. ....................................................................... 7




                                                     iii
                2.      The TSA is a separate and distinct agency from
                        the City. ........................................................................... 9

                3.      There is no evidence that the TSA has any duty
                        to report incidents like this one to the City. ...................... 11

                4.      Green’s exhibits do not raise a fact issue on
                        actual notice, and she does not produce any
                        evidence that the City had notice. .................................... 14

                5.      Green’s communication to the TSA did not give
                        the TSA, much less the City, subjective
                        awareness of potential fault. ............................................ 15

Conclusion and Prayer ............................................................................... 16
Certificate of Compliance ........................................................................... 17

Certificate of Service .................................................................................. 18




                                                     iv
                                     Index of Authorities

                                                                                            Page(s)
Cases

Bland Indep. Sch. Dist. v. Blue,
   34 S.W.3d 547 (Tex. 2000)....................................................................... 5

Cathey v. Booth,
   900 S.W.2d 339 (Tex. 1995) (per curiam) ............................................8, 11

City of Dallas v. Carbajal,
   324 S.W.3d 537 (Tex. 2010) .............................................................passim

City of Houston v. Atkins,
   No. 14-10-01265-CV, 2011 WL 1744207 (Tex. App.—Houston [14th
   Dist.] May 5, 2011, no pet.) (mem. op.) ......................................... 8, 10, 14

City of Houston v. McGowen,
   No. 14-13-00415-CV, 2014 WL 2039856 (Tex. App.—Houston [14th
   Dist.] May 15, 2014, no pet.).................................................................... 7

City of Houston v. Rushing,
   7 S.W.3d 909 (Tex. App.—Houston [1st Dist.] 1999, no pet.) .................. 16

City of Houston v. Torres,
   621 S.W.2d 588 (Tex. 1981) ..................................................................... 6

City of Waco v. Kirwan,
   298 S.W.3d 618 (Tex. 2009) ..................................................................... 5

Cnty. of Cameron v. Brown,
   80 S.W.3d 549 (Tex. 2002)....................................................................... 5

Garcia v. Tex. Dep’t of Criminal Justice,
  902 S.W.2d 728 (Tex. App.—Houston [14th Dist.] 1995, no writ) ............. 8

Gattis v. Duty,
  349 S.W.3d 193 (Tex. App.—Austin, 2011, no pet.)................................ 12

Guadalupe Blanco River Auth. v. Schneider,
  392 S.W.3d 321 (Tex. App.—San Antonio 2012, no pet.)........................ 13


                                                  v
Hart v. City of Dallas,
  No. 05-93-00448-CV, 1994 WL 60901 (Tex. App.—Dallas Mar. 2,
  1994, no writ) (unpublished op.)..........................................................8, 12

Reese v. Tex. State Dep’t of Highways & Pub. Transp.,
   831 S.W.2d 529 (Tex. App.—Tyler 1992, writ denied) .........................7, 10

State Dep’t of Highways v. Dopyera,
   834 S.W.2d 50 (Tex. 1992), cert. denied, 506 U.S. 1014, 113 S. Ct. 636
   (1992) ..................................................................................................... 6

Tex. Dep’t of Crim. Justice v. Simons,
   140 S.W.3d 338 (Tex. 2004) ..................................................................... 7

Tex. Dep’t of Parks & Wildlife v. Miranda,
   133 S.W.3d 217 (Tex. 2004) ............................................................ 4, 5, 12

Tex. Nat. Res. Cons. Comm’n v. IT-Davy,
   74 S.W.3d 849 (Tex. 2002)..................................................................... 11

Univ. of Tex. Health Sci. Ctr. at Houston v. McQueen,
  431 S.W.3d 750 (Tex. App.—Houston [14th Dist.] 2014, no pet.) .............. 8

Univ. of Tex. Health Sci. Ctr. at San Antonio v. Stevens,
  330 S.W.3d 335 (Tex. App. —San Antonio 2010, no pet.) ....................... 13



Constitution and Statutes

Aviation and Transportation Security Act, Pub. L. No. 107-71, § 101,
  115 Stat. 597-647 (2001)........................................................................... 9

Homeland Security Act of 2002, Pub. L. No. 107-296, § 403, 116 Stat.
  2135-2321 (2002) ..................................................................................... 9

Tex. Civ. Prac. & Rem. Code § 101.101 ................................................. 5, 6, 7

Tex. Const. art. XI, § 5 ................................................................................. 9

Tex. Gov’t Code § 311.034 ......................................................................6, 11

Tex. Loc. Gov’t Code §§ 51.071 - .072 .......................................................... 9


                                                       vi
City Charter and Ordinances
City of Houston Charter art. IX, § 11 ............................................................ 6

City of Houston Charter, art. II, §§ 1, 2 ......................................................... 9

City of Houston, Code of Ordinances, § 2-74................................................. 2




                                                 vii
                                Record References

Citations in this brief to the record are as follows:

CR—clerk’s record (i.e., CR [page]).




                                         viii
                            Statement of the Case

Nature of the Case:                Appellant Arlean Green (“Green”) sued
                                   the City of Houston (“the City”) alleging
                                   personal injury pursuant to the Texas Tort
                                   Claims Act (“TTCA”). She later added
                                   United Airlines, Inc., as a defendant,
                                   alleging negligence based on premises
                                   liability.

Course of Proceedings and
Dispositions:                      The City filed a plea to the jurisdiction
                                   based on absence of timely notice of the
                                   claim. (CR 33-47). The trial court granted
                                   the plea, dismissing the City. (CR 325).
                                   Thereafter, Green nonsuited United
                                   Airlines, Inc., and the trial court entered a
                                   final judgment disposing of all claims and
                                   all parties.

Trial Court:                       Honorable Dan Hinde, 269th Judicial
                                   District Court of Harris County, Texas




                                     ix
                    Statement Regarding Oral Argument

      The City does not believe oral argument is necessary to help the Court

analyze and decide the case.


                                Issue Presented

      The trial court properly granted the plea to the jurisdiction because
      Green did not give the City timely formal or actual notice of her
      claim, and the absence of timely notice is an incurable
      jurisdictional defect.




                                       x
                                   Statement of Facts

       Green sued the City alleging that she tripped and fell at the George Bush

International Airport in Houston. (CR 5, 49). The City filed a plea to the

jurisdiction based on the lack of timely formal or actual notice of Green’s

claim. (CR 33-47). The trial court granted the plea. (CR 325). On appeal, this

Court must decide whether there is any evidence of timely actual notice.


       A.     Green sues and the City files a plea to the jurisdiction because it
              did not receive timely formal or actual notice of Green’s claim.

       Green alleges that she tripped and fell in Terminal B near the

Transportation Safety Administration (“TSA”) checkpoint at George Bush

International Airport on May 23, 2012. (CR 5). Green neither alleges, nor

produces any evidence to show, that there was ever any City investigation of

the incident; that the City received timely formal notice of Green’s claim; or

that Green timely informed any City employee or City representative of her

claim.1

       As its evidence, the City attached an affidavit from the City Secretary,

Anna Russell, averring that, as of July 31, 2014, no notice of Green’s claim


1
  Green’s representation in her brief that she contacted the “Houston TSA” is confusing
because it implies that the TSA in Houston is part of the City of Houston. There is no
evidence to support this and, as discussed below, it is contrary to law. The City assumes that
Green was merely specifying the particular office of the TSA rather than representing to this
Court that she actually timely contacted the City.
had ever been received by her office.2 (CR 34, 47). The City also attached its

Charter provision, Article IX Section 11, requiring notice within 90 days of the

date an injury was sustained, and asked the court to take judicial notice of the

City’s Charter and Code provisions. (CR 33, 36, 39).


       B.     Green’s response and appellate brief argues the City had actual
              notice because a TSA employee witnessed the fall and Green
              contacted the TSA about the incident.

       In her response to the plea and in her appellate brief, Green did not, and

does not, argue or point to any evidence that she gave the City timely formal

notice of a claim. She argues, instead, that the City had timely actual notice

because various TSA employees or TSA agents either witnessed her fall or

were contacted in July 2012 about the incident.3

       The City produced the Aviation and Transportation Security Act and the

Homeland Security Act of 2002 as exhibits to establish that the TSA is a

federal agency created by the United States Congress and is wholly unrelated

to the City. (CR 87-324). Green produced no evidence to support her

2
 Any notice of claim for damages under TEX. CIV. PRAC. & REM. CODE § 101.101 or
Article IX, § 11 of the City’s Charter must be filed with the office of the City Secretary. See
City of Houston, Code of Ordinances, § 2-74. (CR 40).
3
  The City objected to the unverified emails and fax cover sheet that Green purportedly sent
to the TSA. (CR 81-82). They were not timely provided to the City under the terms of the
Texas Rules of Civil Procedure. (CR 81). Even if the Court were to consider those as
evidence, those documents merely show that Green contacted TSA officials. (See CR 74-80,
documents solely addressed to or concerning TSA officials or employees).



                                              2
conclusory statement that the TSA is an “agent” of the City. Green also did

not point to any evidence supporting the notion that the TSA had any duty to

report the incident in question to the City or to investigate on behalf of the

City. (CR 68-80).


                          Summary of the Argument

      The trial court properly granted the City’s plea to the jurisdiction

because Green failed to give timely notice of her claim to the City as is

required by the City Charter. Green does not dispute that she failed to give

timely formal notice to the City, or that she failed to timely inform any City

employees with a duty to investigate about the alleged incident such that the

City could: (1) identify her; (2) know that she was injured; or (3) be

subjectively aware of any possible fault. Instead, Green alleges only that she

told TSA personnel about the incident and that this knowledge therefore must

be imputed to the City. See App. Br. at 8. Green is incorrect.

      The TSA is a federal agency and is neither a branch of, nor affiliated

with, the City. Notice to the TSA is not notice to the City. There is no

allegation or evidence to show that Green timely contacted anyone other than

TSA personnel in connection with this incident. Green fails to point to any

evidence to raise a fact issue, or point to any case to show as a matter of law,

that notice to the TSA is notice to the City. Nor has she offered any evidence

                                        3
that any TSA representative whom she contacted notified the City about the

incident, investigated on its behalf, or had a duty to do so. Moreover, Green

does not mention, nor does she present any evidence to indicate, that any City

employee knew about the incident or that she contacted any City employee or

official regarding the incident within 90 days as required by the City Charter.

The City lacked knowledge that there was an alleged injury, subjective

awareness of the City’s potential fault, and knowledge of Green’s identity.

      Lack of notice is an incurable jurisdictional defect. Because Green does

not raise a fact issue that she provided either formal or actual notice of her

claim to the City within 90 days of sustaining the alleged injury as required by

the City’s Charter, the trial court lacked jurisdiction. This Court should affirm

the dismissal of this case.


                              Argument and Authorities

I.    Standard of Review

      The City’s plea to the jurisdiction challenged the trial court’s subject-

matter jurisdiction over the case. See Tex. Dep’t of Parks & Wildlife v. Miranda,

133 S.W.3d 217, 225–26 (Tex. 2004). A plea questioning the trial court’s

jurisdiction raises a question of law that is reviewed de novo. See City of Dallas

v. Carbajal, 324 S.W.3d 537, 538 (Tex. 2010); Miranda, 133 S.W.3d at 226. In

performing this review, courts consider the pleadings and evidence relevant to

                                         4
the jurisdictional inquiry. See Cnty. of Cameron v. Brown, 80 S.W.3d 549, 555

(Tex. 2002); Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000). The

plaintiff has the burden of alleging facts that affirmatively demonstrate the

court’s jurisdiction to hear the case. Miranda, 133 S.W.3d at 226.

      When a plea to the jurisdiction challenges the existence of jurisdictional

facts, courts consider relevant evidence when necessary to resolve the

jurisdictional issues raised, even where those facts may implicate the merits of

the cause of action. See City of Waco v. Kirwan, 298 S.W.3d 618, 621 (Tex.

2009). If that evidence creates a fact issue as to the jurisdictional issue, then it

is for the fact-finder to decide. Id. In considering this evidence, courts take as

true all evidence favorable to the nonmovant and indulge every reasonable

inference and resolve any doubts in the nonmovant’s favor. Id. On the other

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

the jurisdictional issue, as here, the trial court should grant the plea to the

jurisdiction as a matter of law. Id.


II.   Timely notice of a claim under the TTCA is jurisdictional.

      A person pursuing a claim against a governmental unit under the TTCA

must give the governmental unit timely and proper notice of the claim. Tex.

Civ. Prac. & Rem. Code § 101.101. That notice is jurisdictional. Tex. Gov’t



                                         5
Code § 311.034; Carbajal, 324 S.W.3d at 537-38. “Once the plaintiff invokes

the procedural devices of the Texas Tort Claims Act, to bring a cause of action

against the State, then he also is bound by the limitations and remedies

provided in the statute.” State Dep’t of Highways v. Dopyera, 834 S.W.2d 50, 54

(Tex. 1992), cert. denied, 506 U.S. 1014, 113 S. Ct. 636 (1992).

       Although the statute requires notice within 180 days after the

complained-of event, the statute allows cities to shorten the time through their

charter provisions. Tex. Civ. Prac. & Rem. Code § 101.101(b). The City, a

home-rule municipality,4 has a charter provision requiring notice within 90

days. See City of Houston Charter art. IX, § 11. (CR 32). Courts have approved

and applied this charter provision. See, e.g., City of Houston v. Torres, 621 S.W.2d

588, 591-92 (Tex. 1981) (enforcing mandatory 90-day notice provision of the

City’s Charter and denying “good-cause” exception).


III.   The City did not receive timely notice of Green’s claim.

       A.    Green gave no timely formal notice.

       Green acknowledges that she did not give timely formal notice to the

City. See Appellant’s Brief (“App. Br.”) at 9. When a claimant fails to provide


4
  In accordance with Tex. Loc. Gov’t Code § 9.008(b), the City asks this Court to take
judicial notice of the provisions of the City’s published Charter, and the City’s status
thereunder as a Texas home-rule city.



                                           6
a city with timely formal notice of a claim, the TTCA requires that the city

have timely actual notice or the suit must be dismissed. Tex. Civ. Prac. &

Rem. Code § 101.101(c); Carbajal, 324 S.W.3d at 537–38.


      B.    The City had no timely actual notice of the incident.

      A plaintiff trying to establish that a city had timely actual notice of a

claim must prove that the city: a) knew about the incident and an injury or

death, b) had a subjective awareness that its fault allegedly caused that injury

or death, and c) knew the identity of the parties involved. Carbajal, 324 S.W.3d

at 538. To have actual notice, the governmental unit must “have knowledge

that amounts to the same notice to which it is entitled by section 101.101(a).”

Tex. Dep’t of Crim. Justice v. Simons, 140 S.W.3d 338, 347 (Tex. 2004).


            1.    Alleged notice to a federal agency is not notice to the City.

      Notice to one governmental unit does not impute notice to another

governmental unit. Reese v. Tex. State Dep’t of Highways & Pub. Transp., 831

S.W.2d 529, 530 (Tex. App.—Tyler 1992, writ denied) (concluding, as a

matter of law, that notice to one state department does not impute notice to

another department); see also City of Houston v. McGowen, No. 14-13-00415-CV,

2014 WL 2039856, at *6 (Tex. App.—Houston [14th Dist.] May 15, 2014, no

pet.) (notice to the Transportation Department, without evidence that the


                                        7
department notified the City, did not impute notice to the City); City of Houston

v. Atkins, No. 14-10-01265-CV, 2011 WL 1744207, at *3 (Tex. App.—Houston

[14th Dist.] May 5, 2011, no pet.) (mem. op.) (citing and distinguishing cases

because “[t]he present case is therefore unlike those in which appellate courts

concluded the government agency had actual notice when the same

government employees had knowledge of the cause of the accident, the nature

of the injury, and the identity of the injured party.” (emphasis added)).

      Not only must actual notice be provided to the correct governmental

entity, it also must be received by an agent or representative of that

governmental entity who “is charged with a duty to investigate the facts and

report them to a person of sufficient authority.” Univ. of Tex. Health Sci. Ctr. at

Houston v. McQueen, 431 S.W.3d 750, 754 (Tex. App.—Houston [14th Dist.]

2014, no pet.); see also Hart v. City of Dallas, No. 05-93-00448-CV, 1994 WL

60901, at *2 (Tex. App.—Dallas Mar. 2, 1994, no writ) (unpublished op.).

“The purpose of the TTCA’s notice provision is to enable the governmental

unit to investigate while the facts are fresh and the conditions are substantially

similar in order to guard against unfounded claims, settle claims, and prepare

for trial.” McQueen, 431 S.W.3d at 754 (citing Cathey v. Booth, 900 S.W.2d 339,

341 (Tex. 1995) (per curiam); Garcia v. Tex. Dep’t of Criminal Justice, 902 S.W.2d

728, 731 (Tex. App.—Houston [14th Dist.] 1995, no writ)).


                                        8
            2.     The TSA is a separate and distinct agency from the City.

      The TSA is an agency of the United States Government created in the

aftermath of the September 11, 2001 terrorist attacks upon our nation. See

Aviation and Transportation Security Act, Pub. L. No. 107-71, § 101, 115 Stat.

597-647 (2001) (CR 87-137); see also id. § 137 (providing funding for aviation

security technology designed to prevent terrorist attacks). (CR 127-28). The

Aviation and Transportation Security Act, signed into law on November 19,

2001, establishes the TSA and sets out its purpose. Id. The United States

Congress moved the TSA to the Department of Homeland Security from the

Department of Transportation by enacting the Homeland Security Act of 2002.

See Homeland Security Act of 2002, Pub. L. No. 107-296, § 403, 116 Stat.

2135-2321 (2002). (CR 138-324, 181). In contrast, the City is a home-rule

municipality created under the laws and Constitution of the State of Texas. See

Tex. Const. art. XI, § 5; accord Tex. Loc. Gov’t Code §§ 51.071 - .072; City of

Houston Charter, art. II, §§ 1, 2.

      The legal authorities cited above establish that the TSA, as a federal

agency, and the City, as a home-rule municipality, are separate and distinct

governmental entities as a matter of law. The TSA’s employees, agents,

representatives, and contractors are not employees, agents, representatives, or

contractors of the City. Green has not cited a single case, statute, charter


                                      9
provision, or ordinance, nor has she pointed to any evidence, to support her

bare assertion that notice to the TSA can be imputed to the City. Because there

is no indication other than Green’s say-so to establish that the TSA is the agent

of the City, notice provided to TSA personnel concerning Green’s fall and

injuries cannot be imputed to the City. Reese, 831 S.W.2d at 530; Atkins, 2011

WL 1744207, at *3.

      For example, in Reese, the appellate court rejected the plaintiff’s

contention that a police report that was filed with the Texas Department of

Public Safety imputed actual notice to the Texas State Department of

Highways and Public Transportation. Reese, 831 S.W.2d at 530. Even though

both agencies were state agencies, notice to one state agency was not sufficient

to impute actual notice to the other state agency as a matter of law. Id.

      Here, the chasm between the two governmental entities—one a

mammoth federal agency and the other a local municipality—is even more

pronounced than the separate state departments in Reese. There is no basis for

Green’s contention that notifying the TSA in some way sufficed as notice to

the City.

      There are also sound policy reasons to reject the argument that Green

advances here. Green would have this Court hold that any time an entity is

working on City property, notice to that entity may be imputed to the City for


                                        10
any alleged injury occurring on the property. See App. Br. at 10. This would

impermissibly expand the scope of municipal liability and completely

eviscerate the purpose of the notice requirement: to allow governmental bodies

the opportunity to investigate incidents, and decide whether to settle them,

while the facts are fresh. See Cathey, 900 S.W.2d at 341. It would negate the

requirements that the governmental entity have subjective awareness of fault,

knowledge of the identity of the injured, and knowledge of an injury. Carbajal,

324 S.W.3d at 538. Further, it would thwart the policy of judicial deference to

the Legislature on issues of the scope of waivers of immunity. Tex. Nat. Res.

Cons. Comm’n v. IT-Davy, 74 S.W.3d 849, 853-54 (Tex. 2002). Finally,

expanding the scope of the waiver of immunity to encompass situations where

a separate entity’s notice may be imputed to the government entity being sued

(which received no actual notice) would require clear and unambiguous

legislative intent, which is completely absent from the current notice provisions

in the TTCA. See id. at 853-54; see also Tex. Gov’t Code § 311.034. The Court

should decline Green’s invitation to expand the scope of the immunity waiver.


            3.    There is no evidence that the TSA has any duty to report
                  incidents like this one to the City.

      Not only has Green failed to raise a fact issue that informing the TSA is

the same as informing the City, Green also has failed to produce any evidence


                                       11
that the TSA reported the incident to the City, investigated on its behalf, or

had any duty to do so. This is her burden, not the City’s. See 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 plaintiffs,

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.”). Instead of pointing to evidence or citing authority,

Green cursorily asserts that “TSA agents working at the airport have a duty to

investigate security concerns and incidents on behalf of the City of Houston,

given their operations are contained within City property.” App. Br. at 10.

Unsupported legal conclusions are insufficient to defeat a plea to the

jurisdiction. Gattis v. Duty, 349 S.W.3d 193, 200 (Tex. App.—Austin, 2011, no

pet.) (citation omitted).

      In Hart v. City of Dallas, the Dallas Court of Appeals rejected that

plaintiff’s contention that a city employee witnessing an injury, without more,

imputes notice to the city. 1994 WL 60901, at *3-4. The appellate court looked

at the employee’s job description and concluded that the employee did not

have the authority to receive notice of plaintiff’s claim because she had no duty

to receive or report notice of any kind or to act on that information. Id. at *3.

Green produces no evidence that any of the TSA personnel she contacted had


                                       12
any duty to report the incident to the City, and the City has shown that the

TSA and the City are separate entities as a matter of law. See supra, sec. III.B.2.

      Green nonetheless argues that the City “‘cannot put on metaphorical

blinders and designate only one person in its entire organization through

whom actual notice may be imputed’ when in fact other representatives have

received notice of the claim and have a duty to investigate on behalf of the

entity.” App. Br. at 9 (quoting Guadalupe Blanco River Auth. v. Schneider, 392

S.W.3d 321, 325 (Tex. App.—San Antonio 2012, no pet.), quoting Univ. of

Tex. Health Sci. Ctr. at San Antonio v. Stevens, 330 S.W.3d 335, 339 (Tex. App.

—San Antonio 2010, no pet.). Green’s argument misses the mark: (1) legal

authority cited above shows that the TSA is not a part of the City’s

“organization” such that TSA representatives could be designated as

representatives of the City; (2) there is simply no evidence that anyone at the

TSA had any duty to notify the City about the incident; and (3) there is no

evidence that anyone at the TSA had a duty to investigate on behalf of the

City. Green’s citation to Guadalupe and Stevens is unavailing.




                                        13
            4.    Green’s exhibits do not raise a fact issue on actual notice,
                  and she does not produce any evidence that the City had
                  notice.

      Green asserts that an e-mail sent from Bill Woods to the TSA’s Freedom

of Information Act e-mail address on July 16, 2012 and a letter sent from

Maryellen Brent to Gene Brault, (purportedly “the TSA Manager for the

Houston Airport”) at an unspecified address on July 18, 2012 constitute actual

notice to the City of her claim. (CR 74-80). This assertion is incorrect for the

reasons established above, i.e., notice provided to the TSA, its employees,

agents, representatives or contractors, concerning Green’s fall and injuries

cannot be imputed to the City.

      Moreover, wholly absent from Green’s evidence is any indication that

the City had actual notice. See Atkins, 2011 WL 1744207, at *1, 3 n.2.

(concluding that four documents, including an affidavit by METRO’s

investigating supervisor and a transcription of an interview with an off-duty

City of Houston police officer who witnessed both the accident and the City’s

remedial measures, did not raise a fact issue on the City’s actual notice).

Green’s evidence would require far more of this Court than it would have

taken to “cobble together” the exhibits in Atkins to conclude that Atkins had

raised a fact issue, which the Court declined to do in that case. See Atkins, 2011

WL 1744207, at *3. Green has no evidence of any City employee or


                                       14
representative witnessing any aspect of the incident, much less learning

Green’s identity, or whether she was injured, or what may have caused her

alleged fall. Green cannot raise a fact issue on any one of the required elements

of actual notice and has not met her burden in response to the City’s plea to

the jurisdiction.


             5.     Green’s communication to the TSA did not give the TSA,
                    much less the City, subjective awareness of potential
                    fault.

      Even if the Court could impute notice to the TSA as notice to the City,

Green’s exhibits, at best, notify the TSA of the date and approximate time of

her fall, generally describe where that fall occurred, generally describe some

damage to Green’s cell phone, describe some paint on Green’s pants leg, report

no visible injury, and mention some pain in her knee (which did not prohibit

her from completing her travels). (CR 74, 80). Green’s exhibits wholly fail to

provide sufficient information for any governmental unit to form a subjective

awareness that its fault produced or contributed to Green’s claimed injury.

      The requirement that the governmental unit at issue must have actual,

subjective awareness of its fault is absolute. Carbajal, 324 S.W.3d at 538-39.

Green’s exhibits, like the police report at issue in Carbajal, do not imply, much

less expressly state, that the TSA, the City, or any other entity was at fault for



                                       15
her fall and injury. Id. As such, even if imputable to the City (it is not), Green’s

purported communication to the TSA of her fall and injury fails to meet the

legal standard established by the Texas Supreme Court for providing actual

notice of her claim.

      To defeat the City’s plea, Green must allege facts that affirmatively

demonstrate this Court’s jurisdiction to hear this case. City of Houston v.

Rushing, 7 S.W.3d 909, 913 (Tex. App.—Houston [1st Dist.] 1999, no pet.).

Green did not, does not, and cannot meet her burden to affirmatively

demonstrate subject-matter jurisdiction over this case. Thus, the trial court

lacked subject-matter jurisdiction to consider Green’s claims against the City

and properly dismissed this case.


                             Conclusion and Prayer

      For the reasons stated above, the Court should affirm the trial court’s

decision to sustain the City’s plea. The City respectfully asks that the Court:

1) sustain its issues on appeal; 2) affirm the grant of its plea to the jurisdiction;

3) dismiss all of Green’s claims against it for want of jurisdiction; 4) grant it

costs and expenses on appeal; and 5) grant it any other relief to which it is

entitled.




                                         16
                                  Respectfully submitted,

                                  DAVID M. FELDMAN
                                  City Attorney
                                  JUDITH L. RAMSEY
                                  Chief, General Litigation Section

                                  By:     /s/ Mary Beth Stevenson
                                         Mary E. (“Mary Beth”) Stevenson
                                         Assistant City Attorney
                                         SBN 24072366
                                         David L. Red
                                         Senior Assistant City Attorney
                                         SBN 16656900
                                         CITY OF HOUSTON LEGAL
                                         DEPARTMENT
                                         900 Bagby Street, 4th Floor
                                         Houston, Texas 77002
                                         832.393.6269 (telephone)
                                         832.393.6259 (facsimile)
                                         marybeth.stevenson@houstontx.gov
                                         david.red@houstontx.gov

                                  Attorneys for Appellee




                        Certificate of Compliance

      I certify that the foregoing was prepared in Microsoft Word 2010
Version 14.0 using Calisto MT 14-point font; the word-count function shows
that, excluding those sections exempted under TRAP 9.4(i)(1), the brief
contains 3,872 words.

                                   /s/ Mary Beth Stevenson
                                  Mary E. (“Mary Beth”) Stevenson




                                    17
                            Certificate of Service

      I hereby certify that on this the 9th day of January, 2015, a true and
correct copy of the foregoing has been served on the parties below via certified
mail and/or e-service.

George Farah
Sarah C. Dionne
Guerra & Farah, PLLC
4101 Washington Ave., 3rd Floor
Houston, Texas 77007

Attorneys for Appellant

                                     /s/ Mary Beth Stevenson
                                    Mary E. (“Mary Beth”) Stevenson




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