                                  IN THE
                          TENTH COURT OF APPEALS

                                 No. 10-15-00238-CV

TEXAS A&M UNIVERSITY,
                                                             Appellant
v.

JORGE RIOS,
                                                             Appellee



                          From the 272nd District Court
                               Brazos County, Texas
                         Trial Court No. 14-002015-CV-272


                           MEMORANDUM OPINION


       In two issues, appellant, Texas A&M University, challenges the trial court’s denial

of its plea to the jurisdiction in favor of appellee, Jorge Rios. Specifically, appellant

contends that the trial court erred in denying the plea to the jurisdiction because: (1) the

allegedly wrongful act was done by David Waidler, an employee of Texas A&M AgriLife

Research (“TAMU-AgriLife”), not appellant; and (2) Rios did not provide required notice

of his claim within six months of the incident. Because we overrule both of appellant’s

issues, we affirm.
                                     I.     BACKGROUND

       On October 6, 2011, Rios was involved in a car accident with Waidler in Tarrant

County, Texas. The police report indicated that Waidler rear-ended Rios’s vehicle at the

Weatherford Traffic Circle. Appellant asserts that, at the time of the accident, Waidler

was not its employee, but rather an employee of TAMU-AgriLife.                According to

appellant, appellant and TAMU-AgriLife are separate and distinct government agencies,

though both are part of the Texas A&M University System.

       On June 1, 2012, Rios brought suit against appellant in Tarrant County. In his

original petition, Rios alleged that appellant was responsible for the alleged tortious

conduct of Waidler under the Texas Tort Claims Act. See TEX. CIV. PRAC. & REM. CODE

ANN. § 101.021 (West 2011). Rios sought damages for personal injuries sustained as a

result of the accident. Included in Rios’s suit was a request for disclosure directed to

appellant.

       Appellant responded to Rios’s suit by filing a motion to transfer venue and subject

thereto original answer, plea to the jurisdiction, and jury demand. In this filing, appellant

moved to transfer venue to Brazos County, Texas, and challenged the trial court’s subject-

matter jurisdiction by asserting sovereign immunity from suit and liability. Thereafter,

appellant responded to Rios’s disclosure request.

       Later, the action was transferred to Brazos County, and the 272nd Judicial District

Court of Brazos County subsequently conducted a hearing on appellant’s plea to the

jurisdiction. At the conclusion of the hearing, the trial court denied appellant’s plea, and



Texas A&M University v. Rios                                                           Page 2
this accelerated, interlocutory appeal followed.1 See TEX. CIV. PRAC. & REM. CODE ANN. §

51.014(a)(8) (West Supp. 2015); see also TEX. R. APP. P. 28.1(a).

                                          II.      APPLICABLE LAW

A.      Plea to the Jurisdiction

        A plea to the jurisdiction is a dilatory plea used to defeat a cause of action without

regard to whether the claims asserted have merit. Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d

547, 554 (Tex. 2000). The plea challenges the trial court’s subject-matter jurisdiction. Id.

Whether the trial court has subject-matter jurisdiction and whether the pleader has

alleged facts that affirmatively demonstrate the trial court’s subject-matter jurisdiction

are questions of law that we review de novo. Tex. Dep’t of Parks & Wildlife v. Miranda, 133

S.W.3d 217, 226 (Tex. 2004).

        The plaintiff has the burden to plead facts affirmatively showing that the trial court

has jurisdiction. Tex. Ass’ n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 446 (Tex. 1993).

We construe the pleadings liberally in favor of the pleader, look to the pleader’s intent,

and accept as true the factual allegations in the pleadings. See Miranda, 133 S.W.3d at 226,

228. 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, even if those facts implicate

the merits of the cause of action. Id. at 227.



        1 At the conclusion of the hearing on appellant’s plea to the jurisdiction, Rios requested leave of the
trial court to add TAMU-AgriLife and the Texas A&M University System (the “System”) as parties to this
suit. The trial court granted leave, and thereafter, Rios filed his second amended petition asserting claims
against appellant, TAMU-AgriLife, and the System.

Texas A&M University v. Rios                                                                            Page 3
        A trial court’s review of a plea to the jurisdiction challenging the existence of

jurisdictional facts mirrors that of a tradition motion for summary judgment. Id. at 228;

see TEX. R. CIV. P. 166a(c). The governmental unit is required to meet the summary-

judgment standard of proof for its assertion that the trial court lacks jurisdiction. Miranda,

133 S.W.3d at 228. Once the governmental unit meets its burden, the plaintiff is then

required to show that there is a disputed material fact regarding the jurisdictional issue.

Id. If the evidence creates a fact question regarding jurisdiction, the trial court must deny

the plea to the jurisdiction and leave its resolution to the factfinder. Id. at 227-28. But, if

the evidence is undisputed or fails to raise a fact question on the jurisdictional issue, the

trial court rules on the plea to the jurisdiction as a matter of law. Id. at 228. “In

considering this evidence, we ‘take as true all evidence favorable to the nonmovant’ and

‘indulge every reasonable inference and resolve any doubts in the nonmovant’s favor.’”

City of Waco v. Kirwan, 298 S.W.3d 618, 622 (Tex. 2009) (quoting Miranda, 133 S.W.3d at

228).

B.      Immunity

        Sovereign immunity protects the State and its various divisions from lawsuits for

money damages. Tex. Natural Res. Conservation Comm’n v. IT-Davy, 74 S.W.3d 849, 853

(Tex. 2002).    Governmental immunity provides similar protections to the political

subdivisions of the State, such as counties, cities, and school districts. Wichita Falls State

Hosp. v. Taylor, 106 S.W.3d 692, 694 n.3 (Tex. 2003).             Governmental immunity

encompasses two components: (1) immunity from liability, which bars enforcement of a

judgment against a governmental entity; and (2) immunity from suit, which bars suit

Texas A&M University v. Rios                                                             Page 4
against the entity altogether. Tooke v. City of Mexia, 197 S.W.3d 325, 332 (Tex. 2006). If the

Legislature has not expressly waived immunity from suit, the State retains such

immunity even if its liability is not disputed. IT-Davy, 74 S.W.3d at 853. Immunity from

liability protects the State from money judgments even if the Legislature has expressly

given consent to sue. Id. A plaintiff who sues the State must establish the State’s consent

to suit. Tex. Dep’t of Transp. v. Jones, 8 S.W.3d 636, 638 (Tex. 1999); see Dallas Area Rapid

Transit v. Whitley, 104 S.W.3d 540, 542 (Tex. 2003). Otherwise, sovereign immunity from

suit defeats a trial court’s subject-matter jurisdiction. Jones, 8 S.W.3d at 638.

                                        III.   ANALYSIS

A.     The Evidence Creates a Fact Question as to Whether Waidler is Appellant’s
       Employee

       In its first issue, appellant contends that the trial court erred in denying the plea to

the jurisdiction because the allegedly wrongful act was done by Waidler, an employee of

TAMU-AgriLife, not appellant. In other words, appellant alleges that it is immune from

both liability and suit because Waidler is not appellant’s employee. Rios counters that

the trial court properly denied appellant’s plea to the jurisdiction because appellant’s

immunity was waived under the Texas Tort Claims Act (“TTCA”), and because “there

are legitimate questions of fact regarding the identity and status of the employer of the

driver of Texas A&M’s vehicle.”

       Here, the asserted source of waiver is the TTCA. The Texas Supreme Court has

stated that the TTCA “provides a limited waiver of governmental immunity.” Alexander

v. Walker, 435 S.W.3d 789, 790 (Tex. 2014) (citing TEX. CIV. PRAC. & REM. CODE ANN. §


Texas A&M University v. Rios                                                             Page 5
101.023 (West 2011)). In arguing that appellant waived governmental immunity, Rios

relies on section 101.021 of the Texas Civil Practice and Remedies Code, which provides

the following:

       A governmental unit in the state is liable for:


           (1) property damage, personal injury, and death proximately caused by
               the wrongful act of omission or the negligence of an employee acting
               within his scope of employment if:

               (A) the property damage, personal injury, or death arises from the
                   operation or use of a motor-driven vehicle or motor-driven
                   equipment; and

               (B) the employee would be personally liable to the claimant
                   according to Texas law; and

           (2) personal injury and death so caused by a condition or use of tangible
               personal or real property if the governmental unit would, were it a
               private person, be liable to the claimant according to Texas law.

TEX. CIV. PRAC. & REM. CODE ANN. § 101.021. Essentially, the dispute in this issue centers

on Waidler’s employment status—specifically, whether or not he is appellant’s

employee.2 To analyze this issue, we must examine the jurisdictional facts that were

before the trial court.

       In its responses to Rios’s request for disclosure, appellant stated the following

when asked to state the correct names of the parties to the lawsuit: “Without admitting

liability, the correct party to this lawsuit is Texas AgriLife Research, a member agency of




       2  Other than Waidler’s employment status, appellant has not challenged any other element under
section 101.021 of the Texas Civil Practice and Remedies Code. See TEX. CIV. PRAC. & REM. CODE ANN. §
101.021 (West 2011).

Texas A&M University v. Rios                                                                   Page 6
The Texas A&M University System.” However, when asked to state the name, address,

and telephone number of potential parties, appellant responded, “None at this time.”

Furthermore, appellant admitted that it “settled the property damage claim with

Plaintiff . . . .” Moreover, when describing Waidler, appellant stated that he was affiliated

with “Texas A&M University,” rather than TAMU-AgriLife, and that he was the driver

of the defendant’s vehicle at the time of the incident.

       In addition to the aforementioned responses, appellant also attached a copy of the

Texas Peace Officer’s Crash Report. In the report, the responding officer described the

accident and indicated that the owner of the vehicle that Waidler was driving is “Texas

A&M University” of “College Station, TX.”

       However, also included in the evidence is a “Motor Vehicle Accident Report”

created by System Risk Management of the Texas A&M University System. This report

stated that Waidler is a research assistant and that “AgriLife Extension” is the owner of

the vehicle that Waidler was driving on the day in question. Further, a copy of the parties’

settlement agreement on the property damage was included in the record and indicated

that it was signed by Debbie Smith, a senior insurance specialist with TAMU-AgriLife.

The settlement agreement also stated that TAMU-AgriLife is “a component of The Texas

A&M University System, a state institution of higher education and governmental unit

of the State of Texas, located in College Station, Texas . . . .”

       Nevertheless, because we are to take as true all evidence favorable to the non-

movant, Rios, and indulge every reasonable inference and resolve any doubts in Rios’s

favor, we conclude that the evidence creates a fact question as to whether Waidler was

Texas A&M University v. Rios                                                           Page 7
appellant’s employee. As such, we cannot say that the trial court erred in denying

appellant’s plea to the jurisdiction with regard to Waidler’s employment status. See

Kirwan, 298 S.W.3d at 622; Miranda, 133 S.W.3d at 227-28; see also TEX. R. CIV. P. 166a(c).

B.     A Material Fact Issue Exists as to Appellant’s Notice Assertion

       In its second issue, appellant argues that Rios did not give the required notice of

his personal-injury claim. More specifically, appellant asserts that the record does not

contain competent evidence that it had actual notice of Rios’s claim.

       “Section 101.101 of the [T]TCA requires a plaintiff to notify a governmental unit of

a claim in order to invoke the waiver of sovereign immunity.” Univ. of Tex. Health Sci.

Ctr. at San Antonio v. Stevens, 330 S.W.3d 335, 338 (Tex. App.—San Antonio 2010, no pet.)

(citing TEX. GOV’T CODE ANN. § 311.034 (West 2013)) (referring to section 101.101’s notice

requirement as “a jurisdictional prerequisite”); accord Tex. Dep’t of Criminal Justice v.

Simons, 140 S.W.3d 338, 343-44 (Tex. 2004); Cathey v. Booth, 900 S.W.2d 339, 340 (Tex. 1995)

(per curiam); see, e.g., Tex. State Tech. College v. Evans, 2009 Tex. App. LEXIS 1909, at **2-3

(Tex. app.—Waco Mar. 18, 2009, no pet.) (mem. op.) (stating that the notice requirement

under section 101.101(a) of the Texas Civil Practice and Remedies Code is jurisdictional).

       The plaintiff must give the governmental unit notice of the claim “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) (West 2011); see Simons, 140 S.W.3d at 343-44;

Stevens, 330 S.W.3d at 338. “The notice must reasonably describe: (1) the damage or

injury claimed; (2) the time and place of the incident; and (3) the incident.” TEX. CIV.



Texas A&M University v. Rios                                                            Page 8
PRAC. & REM. CODE ANN. § 101.101(a); Simons, 140 S.W.3d at 343-44; Stevens, 330 S.W.3d

at 338.

          However, section 101.101(a)’s formal written notice requirement “‘do[es] not

apply if the governmental unit has actual notice . . . that the claimant has received some

injury.’” Simons, 140 S.W.3d at 344 (first alteration in original) (quoting TEX. CIV. PRAC. &

REM. CODE ANN. § 101.101(c)); accord Cathey, 900 S.W.2d at 340; Stevens, 330 S.W.3d at 338.

If the “governmental unit [has] 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,” it has actual notice. Simons, 140 S.W.3d at 348; accord Stevens, 330

S.W.3d at 339.

          “[A] governmental unit cannot acquire actual notice merely by conducting an

investigation, or even by obtaining information that would reasonably suggest its

culpability.” Simons, 140 S.W.3d at 348; accord Stevens, 330 S.W.3d at 339; see also Crane

County v. Saults, 101 S.W.3d 764, 769-70 (Tex. App.—El Paso 2003, no pet.). But if a

governmental unit’s employee who has a duty to gather facts and investigate on behalf

of the governmental entity actually receives notice of the incident and is subjectively

aware that the governmental entity’s fault produced or contributed to the claimed injury,

then actual notice may be imputed to the governmental entity. Simons, 140 S.W.3d at 348;

see Stevens, 330 S.W.3d at 340; cf. City of San Angelo v. Smith, 69 S.W.3d 303, 307-08 (Tex.

App.—Austin 2002, pet. denied) (“[A]n incident that triggers a separate investigation and

report will likely impute notice to a governmental entity.”). If the evidence regarding

actual notice is disputed, the matter is a fact question and must be decided by the

Texas A&M University v. Rios                                                           Page 9
factfinder. Simons, 140 S.W.3d at 348; Miranda, 133 S.W.3d at 227-28; Stevens, 330 S.W.3d

at 341.

          It is undisputed that the accident occurred on October 6, 2011. On the same day,

Waidler signed the “Motor Vehicle Accident Report” created by System Risk

Management of the Texas A&M University System. In this report, the following narrative

of the accident was provided: “Attempted to merge into traffic circle at 183/377 in Ft.

Worth. Rolling slowly, car in front of me stopped and I did not.” The report also

indicated that Waidler was cited for failing to control speed. On November 7, 2011,

appellant settled with Rios with regard to the property damage sustained as a result of

the accident.3 On March 26, 2012, less than six months after the accident, counsel for Rios

sent a notice and demand letter to “Texas A&M University ATTN: Debbie Smith”

discussing the basis for liability and enclosing copies of medical bills and records. On

April 16, 2012, the Texas Assistant Attorney General sent a letter to Rios’s counsel stating

that the assistant attorney general was representing appellant in the claim and would

review the provided medical documentation. Ostensibly, the April 16, 2012 letter from

the Texas Assistant Attorney General was an acknowledgement of receipt of Rios’s March

26, 2012 letter. Additionally, the record reflects that appellant admitted that its Financial

Management Office was aware of the accident and the damage to Rios’s vehicle before

April 6, 2012.




          3   The settlement agreement specifically noted that appellant’s “vehicle rear ended claimant[‘s]
vehicle.”

Texas A&M University v. Rios                                                                       Page 10
       Taking Rios’s evidence as true, and “indulg[ing] every reasonable inference and

resolv[ing] any doubts in his favor,” we conclude that the evidence raises a genuine issue

of material fact as to: (1) whether Rios timely provided appellant with the information

required by section 101.101(a); and (2) whether appellant was subjectively aware of its

fault in producing or contributing to Rios’s injuries. See Kirwan, 298 S.W.3d at 622;

Miranda, 133 S.W.3d at 228; see also TEX. CIV. PRAC. & REM. CODE ANN. § 101.101(a). Thus,

we hold that appellant failed to conclusively disprove that it received the information

within six months of the accident. See Kirwan, 298 S.W.3d at 622; Miranda, 133 S.W.3d at

228; see also TEX. CIV. PRAC. & REM. CODE ANN. § 101.101(a). We also hold that Rios met

his burden to raise a genuine issue of material fact regarding whether appellant had

subjective awareness of its fault in producing or contributing to Rios’s injuries. See

Simons, 140 S.W.3d at 348; Miranda, 133 S.W.3d at 228. Accordingly, we cannot say that

the trial court erred in denying appellant’s plea to the jurisdiction based on the

aforementioned notice requirements. See Kirwan, 298 S.W.3d at 622; Miranda, 133 S.W.3d

at 227-28; see also TEX. R. CIV. P. 166a(c). We overrule appellant’s second issue.

                                     IV.    CONCLUSION

       Having overruled both of appellant’s issues on appeal, we affirm the judgment of

the trial court.




                                                  AL SCOGGINS
                                                  Justice



Texas A&M University v. Rios                                                         Page 11
Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Opinion delivered and filed December 3, 2015
[CV06]




Texas A&M University v. Rios                   Page 12
