                              Fourth Court of Appeals
                                     San Antonio, Texas
                                MEMORANDUM OPINION

                                        No. 04-18-00367-CV

                                    CITY OF SAN ANTONIO,
                                           Appellant

                                                 v.

                                           Gabriela ROCHA,
                                               Appellee

                     From the 57th Judicial District Court, Bexar County, Texas
                                   Trial Court No. 2017CI19451
                          Honorable John D. Gabriel, Jr., Judge Presiding

Opinion by:      Karen Angelini, Justice

Sitting:         Karen Angelini, Justice
                 Marialyn Barnard, Justice
                 Patricia O. Alvarez, Justice

Delivered and Filed: December 12, 2018

REVERSED AND RENDERED

           Gabriela Rocha (“Rocha”) sued the City of San Antonio for damages after she was

involved in a motor vehicle collision with a City-owned police vehicle. The City filed a plea to the

jurisdiction asserting it was immune from the suit because, among other things, Rocha had failed

to provide the City with timely notice of her claims. The trial court denied the City’s plea to the

jurisdiction and the City appealed. We conclude the trial court erred in denying the City’s plea to

the jurisdiction and, therefore, we reverse and render judgment granting the City’s plea to the

jurisdiction and dismissing Rocha’s suit for lack of jurisdiction.
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                                                 BACKGROUND

        On October 10, 2017, Rocha filed a negligence suit against the City. In her petition, Rocha

alleged that, on or about October 11, 2015, the motor vehicle she was driving was struck by a City-

owned police vehicle, and that the police officer involved in the collision was driving in violation

of local ordinances and state law. The petition further alleged that Rocha suffered both personal

injury and property damage in the collision. Although Rocha’s petition did not allege that the City

received timely formal notice of her claims, it did allege the City had actual notice of her claims.

        The City filed an answer denying the allegations in Rocha’s petition. The City also filed a

plea to the jurisdiction, asserting the trial court lacked subject-matter jurisdiction over the suit

because the City had not received formal or actual notice of Rocha’s claims as required by statute. 1

The City supported its plea to the jurisdiction with evidence, including an affidavit from a claims

manager from the City’s office of risk management and a crash report prepared by the police

officer who investigated the collision.

        Rocha filed two responses to the plea to the jurisdiction accompanied by evidence. Rocha’s

evidence included an affidavit from her lawyer stating he had sent a letter to the City advising it

of Rocha’s claims just weeks after the collision occurred. The trial court denied the City’s plea to

the jurisdiction. The City initiated this appeal.

                                          NOTICE REQUIREMENTS

        Governmental entities are generally immune from suits for damages absent a waiver of

immunity. Univ. of Tex. Sw. Med. Ctr. at Dallas v. Estate of Arancibia, 324 S.W.3d 544, 546 (Tex.

2010). In a suit against a governmental entity, the plaintiff has the burden to affirmatively



1
 The City’s plea to the jurisdiction also asserted that governmental immunity was not waived because (1) at the time
of the collision the officer was responding to an emergency and Rocha failed to show that he operated the police
vehicle in a reckless manner, and (2) the officer was entitled to good faith immunity.

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demonstrate the trial court’s jurisdiction by asserting a valid waiver of immunity. Dallas Area

Rapid Transit v. Whitley, 104 S.W.3d 540, 542 (Tex. 2003). To determine if the plaintiff has met

this burden, courts consider the facts alleged by the plaintiff and, if relevant to the jurisdictional

issue, the evidence submitted by the parties. See id.

       The Texas Tort Claims Act (TTCA) waives immunity from suit for negligent acts in certain

circumstances, including property damage and personal injury arising from the operation or use of

a motor-driven vehicle. TEX. CIV. PRAC. & REM. CODE ANN. § 101.021. To take advantage of this

waiver, the plaintiff is required to abide by the notice requirements set out in section 101.101 of

the Texas Civil Practice and Remedies Code. Under subsection 101.101(a), the plaintiff must

notify the governmental unit of the negligent act not later than six months after the day that the

incident giving rise to the claim occurred. Id. § 101.101(a). Subsection 101.101(b) ratifies and

approves a city’s charter and ordinance provisions requiring notice within a charter period

permitted by law. Id. § 101.101(b). The city charter applicable in this case, the San Antonio City

Charter, requires the plaintiff to give the City written notice of any claim for injuries or damages

within ninety days after the injuries or damages are sustained. See SAN ANTONIO, TEX., CITY

CHARTER, art. XII, § 150. However, the formal notice requirements set out in subsections

101.101(a) and (b) do not apply “if the governmental unit has actual notice” “that the claimant has

received some injury, or that the claimant’s property has been damaged.” Id. § 101.101(c).

       The purpose of section 101.101’s notice requirements is to ensure the prompt reporting of

claims to enable governmental units to gather information necessary to guard against unfounded

claims, settle claims, and prepare for trial. Cathey v. Booth, 900 S.W.2d 339, 341 (Tex. 1995).

“The notice required by section 101.101 is jurisdictional and is a condition of the Act’s waiver of

immunity from suit.” City of San Antonio v. Cervantes, 521 S.W.3d 390, 393 (Tex. App.—San

Antonio 2017, no pet.); see TEX. GOV’T CODE ANN. § 311.034 (“Statutory prerequisites to a suit,
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including the provision of notice, are jurisdictional requirements in all suits against a governmental

entity.”). Thus, in the absence of timely notice of a claim, a governmental unit retains its immunity

from suit. Cervantes, 521 S.W.3d at 393-94 (citing City of Dallas v. Carbajal, 324 S.W.3d 537,

537-38 (Tex. 2010)).

                                    PLEA TO THE JURISDICTION

        Because immunity from suit defeats a trial court’s subject-matter jurisdiction, it may be

raised in a plea to the jurisdiction. Texas Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217,

225-26 (Tex. 2004). “[A] court deciding a plea to the jurisdiction is not required to look solely to

the pleadings but may consider evidence and must do so when necessary to resolve the

jurisdictional issues raised.” Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 555 (Tex. 2000). A

plaintiff bears the burden of affirmatively demonstrating a trial court’s jurisdiction. Heckman v.

Williamson Cnty., 369 S.W.3d 137, 150 (Tex. 2012); Cervantes, 521 S.W.3d at 394.

        “[I]n a case in which the jurisdictional challenge implicates the merits of the plaintiff’s

cause of action and the plea to the jurisdiction includes evidence, the trial court reviews the relevant

evidence to determine if a fact issue exists.” Miranda, 133 S.W.3d at 227. This standard generally

mirrors the standard employed in evaluating summary judgments. Id. at 228. A jurisdictional issue

implicates the merits of a case when the determination of many, if not most, of the challenged

jurisdictional facts will also determine whether the plaintiff is entitled to relief on the merits. Univ.

of Tex. v. Poindexter, 306 S.W.3d 798, 807 (Tex. App.—Austin 2009, no pet.).

        When the jurisdictional issue does not substantially implicate the merits of the case, and

the jurisdictional facts are disputed, the trial court makes the findings necessary to resolve the

jurisdictional issue. See Miranda, 133 S.W.3d at 226; Cervantes, 521 S.W.3d at 394; Poindexter,

306 S.W.3d at 806. Stated another way, “[w]hen a jurisdictional issue is not intertwined with the

merits of the claims . . . disputed fact issues are resolved by the court, not the jury.” Vernco Constr.,
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Inc. v. Nelson, 460 S.W.3d 145, 149 (Tex. 2015). When the jurisdictional issue does not

substantially implicate the merits of the case, and the jurisdictional facts are undisputed, the trial

court makes the jurisdictional determination as a matter of law based solely on the undisputed

facts. Poindexter, 306 S.W.3d at 806.

                                            DISCUSSION

       On appeal, the City argues the trial court erred in denying its plea to the jurisdiction because

the jurisdictional evidence establishes that section 101.101’s notice requirements were not satisfied

and, therefore, the trial court lacked subject-matter jurisdiction over Rocha’s claims.

       Whether the trial court had subject-matter jurisdiction over Rocha’s claims is a question of

law that we review de novo. See Miranda, 133 S.W.3d at 226; Cervantes, 521 S.W.3d at 394. The

jurisdictional issue presented in this case, whether the City received timely formal or had actual

notice of Rocha’s claims, did not involve a significant inquiry into the merits of the lawsuit. See

Cervantes, 521 S.W.3d at 394 (concluding that “whether the City received timely formal notice or

had actual notice that [the plaintiff] received some injury in the accident” did “not involve any

significant inquiry into the merits of the lawsuit.”). Under these circumstances, the trial court was

required to consider the evidence submitted by the parties and then resolve the jurisdictional issue

on the basis of the facts it found or those that were undisputed. See id. Furthermore, as will be

shown below, the relevant jurisdictional facts were undisputed here. Therefore, the trial court was

required to make its jurisdictional determination as a matter of law based solely on the undisputed

facts. See id.; Poindexter, 306 S.W.3d at 806.

       We begin our analysis by analyzing the jurisdictional evidence as it relates to section

101.101’s formal notice requirements.




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Formal Notice

       The jurisdictional evidence submitted by the City included an affidavit from a claims

manager in the City’s risk management office, Arnoldo Garcia, Jr. In his affidavit, Garcia testified

that he had searched the city’s database and had found two claim notices involving the collision in

this case. The first notice was a property damage claim filed by Bristol West Insurance as subrogee

for George Rocha, which the City received on March 1, 2016. The second notice was Rocha’s

original petition, which the City received on October 10, 2017. Garcia further testified that prior

to October 10, 2017, the City had received no notice of any personal injury sustained by Rocha.

          The collision occurred on October 11, 2015. Under the city charter, the City was entitled

to receive formal written notice of Rocha’s claims within ninety days of the collision, which was

January 9, 2016. See SAN ANTONIO, TEX., CITY CHARTER, art. XII, § 150. The evidence shows the

City received Bristol West’s notice on March 1, 2016, and Rocha’s petition on October 10, 2017.

Neither Bristol West’s notice nor Rocha’s petition were received by the City within ninety days of

the collision, and therefore, they cannot satisfy the formal notice requirement because they were

untimely. See id.; TEX. CIV. PRAC. & REM. CODE ANN. § 101.101(b). Additionally, Bristol West’s

notice was not submitted by or on behalf of Gabriela Rocha; it was submitted by Bristol West as

subrogee for George Rocha.

       We recognize that the jurisdictional evidence includes an affidavit from Rocha’s lawyer,

Oscar Cantu. In this affidavit, Cantu testified that he “sent” the City a document informing it of

Rocha’s claims “at the start of this case in October of 2015.” However, the fact that Cantu sent the

notice to the City is irrelevant. “According to the plain language of the TTCA, it is the date that

the City receives notice—not when the claimant sends notice—that is controlling.” See Adams v.

City of Dallas, No. 05-14-01143-CV, 2015 WL 7280893, at *2 (Tex. App.—Dallas 2015, no pet.);

TEX. CIV. PRAC. & REM. CODE ANN. § 101.101(a) (“A governmental unit is entitled to receive
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                                                                                       04-18-00367-CV


notice of a claim against it . . . .”). Significantly, Cantu did not testify that the City received the

notice. See Needham Fire & Rescue Co. v. Balderas, No. 14-16-00211-CV, 2017 WL 1416219, at

*3, *5 (Tex. App.—Houston [14th Dist.] 2017, no pet.) (concluding that claimant’s affidavit

stating that notice was mailed to the governmental entity was “no evidence” that notice was

received by the governmental entity, and thus, governmental entity’s affidavit stating that it never

received formal notice was undisputed). In fact, nothing in the jurisdictional evidence shows the

City ever received timely formal notice of Rocha’s claims.

       We conclude the jurisdictional evidence establishes, as a matter of law, that Rocha failed

to comply with section 101.101’s formal notice requirements. See id. We, therefore, conclude the

City did not receive formal notice of Rocha’s claims as required by law. See TEX. CIV. PRAC. &

REM. CODE ANN. § 101.101(a),(b).

Actual Notice

          A governmental entity has actual notice of a claim when it has “knowledge of (1) a

death, injury, or property damage; (2) the governmental unit’s alleged fault producing or

contributing to the death, injury, or property damage; and (3) the identity of the parties involved.”

Cathey, 900 S.W.2d at 341. “To have actual notice, a governmental unit must have the same

knowledge it is entitled to receive under the written notice provisions of the TTCA.” City of San

Antonio v. Tenorio, 543 S.W.3d 772, 776 (Tex. 2018). Actual notice is a fact question when the

evidence is disputed; however, when the facts are undisputed, actual notice can be determined as

a matter of law. Texas Dep’t of Criminal Justice v. Simons, 140 S.W.3d 338, 348 (Tex. 2004).

       Rocha’s main argument on appeal is that the City “was placed on reasonable notice by the

investigation and facts of the collision collected and researched on the day of the actual event.”

However, “[m]ere notice that an incident has occurred does not establish actual notice for purposes

of the [TTCA], nor may a governmental unit acquire actual notice merely by conducting an
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investigation.” San Antonio Water Sys. v. Smith, 451 S.W.3d 442, 451 (Tex. App.—San Antonio

2014, no pet.); accord Simons, 140 S.W.3d at 347-48.

       To establish knowledge of an injury, it is not necessary that the governmental entity be

absolutely certain of the nature and extent of the injury. Cervantes, 521 S.W.3d at 396.

“Knowledge” requires “actual, subjective awareness” of some injury. Id. (citing Simons, 140

S.W.3d at 348). Subjective awareness may be proved, if at all, by circumstantial evidence. Simons,

140 S.W.3d at 348. Additionally, knowledge can be imputed to a governmental entity by an agent

or representative who has a duty to gather facts and investigate. Smith, 451 S.W.3d at 451.

       We first examine the record for any evidence that the City had knowledge of Rocha’s

alleged personal injury. The jurisdictional evidence shows the collision was investigated by San

Antonio Police Department Lieutenant Ricky Lopez. Lopez prepared a “Texas Peace Officer’s

Crash Report” and an affidavit, both of which were submitted in support of the City’s plea to the

jurisdiction. The crash report states: “There were no injuries in this crash.” Additionally, Lopez’s

affidavit states that he contacted Rocha during his investigation, and she did not appear to be

injured, nor did she state that she was injured. Additionally, the police officer driving the police

vehicle involved in the collision, David Higgins, submitted an affidavit in which he testified that,

after the collision, he asked Rocha several times if she was “okay or if she needed EMS” and “she

declined.” Higgins further testified that Rocha “said she was okay. She did not state nor did she

appear to be injured.” After examining the record, we conclude it fails to show the City had

knowledge of any personal injury to Rocha. See Cervantes, 521 S.W.3d at 396-97 (concluding no

evidence existed that governmental entity had actual notice of injury when plaintiff said he was

“okay” at the accident scene and did not make the governmental entity aware he had received some

injury within six months of the accident).



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       We next examine the record for any evidence that the City had knowledge of any damage

to Rocha’s property. The crash report states that, in in the investigating officer’s opinion, the crash

resulted in “at least $1000 damage to any one person’s property.” However, the crash report

identifies George Tovar Rocha as the owner of the vehicle involved in the collision; it does not

identify Gabriela Rocha as the vehicle’s owner. Thus, the jurisdictional evidence fails to show that

the City had knowledge that Rocha’s property was damaged.

       In sum, nothing in the jurisdictional evidence shows the City had knowledge that Rocha

suffered any personal injury or any property damage. See Cathey, 900 S.W.2d at 341. We,

therefore, conclude the jurisdictional evidence establishes, as a matter of law, that the City did not

have actual notice of Rocha’s claims as contemplated by section 101.101(c). See id.

                                            CONCLUSION

       The jurisdictional evidence establishes that the City did not have notice of Rocha’s claims

until it was served with her original petition almost two years after the collision. Because the

undisputed jurisdictional evidence establishes that Rocha did not comply with the notice

requirements set out in section 101.101 of the Texas Civil Practice and Remedies Code, the trial

court erred in denying the City’s plea to the jurisdiction. Therefore, we reverse the trial court’s

order denying the plea to the jurisdiction. We render judgment granting the City’s plea to the

jurisdiction and dismissing Rocha’s suit for lack of subject-matter jurisdiction.

                                                   Karen Angelini, Justice




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