Opinion issued April 9, 2019




                                     In The

                               Court of Appeals
                                    For The

                        First District of Texas
                         ————————————
                               NO. 01-18-00408-CV
                         ———————————

              METROPOLITAN TRANSIT AUTHORITY OF
                 HARRIS COUNTY, TEXAS, Appellant

                                       V.

                         ADAN GARZA, Appellee



                  On Appeal from the 80th District Court
                          Harris County, Texas
                    Trial Court Case No. 2017-23090
                           MEMORANDUM OPINION

      In this interlocutory appeal,1 appellant, Metropolitan Transit Authority of

Harris County, Texas (“Metro”), appeals from the trial court’s order denying its plea

to the jurisdiction on the negligence claim of appellee, Adan Garza. In its sole issue,

Metro contends that the trial court erred by denying its plea to the jurisdiction

because Garza did not give timely notice of his personal injury claim, as required

under the Texas Tort Claims Act (“TTCA”).2

      We affirm.

                                     Background

      Garza alleged that, on November 3, 2015, while he was driving his car

northbound on the service road of the Gulf Freeway, Leo Orville was driving a Metro

bus eastbound on South Lockwood Street. At the intersection of the 4500 block of

the Gulf Freeway service road and Lockwood, Orville did not stop at a red signal

light governing traffic in his direction and entered the intersection at the same time

as Garza, causing Garza to swerve and collide with a traffic control box. Garza sued

Metro for negligence, alleging that its employee, Orville, had failed to maintain a

proper lookout and had failed to control his speed, to obey the traffic light, and to

properly and timely apply his brakes. Garza asserted that his collision with the traffic


1
      See TEX. CIV. PRAC. & REM. CODE § 51.014(8) (authorizing appeal from
      interlocutory order granting or denying governmental unit’s plea to jurisdiction).
2
      See id. §§ 101.001–.109.
                                           2
control box caused him to sustain serious personal injuries. He sought damages for

past and future medical expenses, physical pain, mental anguish, and impairment.

      Metro filed a plea to the jurisdiction and motion to dismiss Garza’s suit,

asserting that the trial court lacked jurisdiction over Garza’s claims because he failed

to give notice of his personal injury claim within six months of the occurrence, as

required by the TTCA. Thus, Metro asserted, its governmental immunity was not

waived, and the trial court should dismiss Garza’s suit.

      Metro first asserted that Garza did not give notice of his claim until ten months

after the collision, on September 29, 2016, when Garza’s counsel sent a letter to

Metro. Metro further argued that the letter was insufficient to constitute formal

notice under the TTCA because it was “silent as to the location of the incident, the

time of day of the incident, bus route number, the nature of any injuries sustained,

or any facts of how the alleged incident occurred.” Metro also asserted that the letter

“did not constitute actual notice, as it provided insufficient information for Metro to

assess its probable fault in causing [Garza’s] alleged injuries.” Further, Metro

asserted that the police report and the reports of its safety supervisor and bus driver

“ma[d]e no mention of any alleged injuries at the scene.” Metro attached to its plea

the September 29, 2016 letter, a copy of the police report, Metro “Supervisor’s

Report of Accident,” and Metro’s “Accident/Incident Report.”

      The September 29, 2016 letter states:

                                           3
      Please be advised that we represent Adan Garza for personal injuries
      and property damage sustained on [November 3, 2015]. . . .
      Our investigation reveals that your insured is legally responsible for this
      collision. If you have accepted liability, please send written
      confirmation of same. If you are disputing liability, please send us the
      basis of your denial in writing, including names, addresses and
      telephone numbers of any potential witnesses.
      Additionally, we request copies of any statement taken of our client,
      relevant photographs, accident reports and any line item appraisals of
      the property damage to each vehicle involved in this accident. Please
      contact my case manager, Veronica Mosqueda . . . .

      The police report states that the “signal lights were stuck green on the service

road and red on S. Lockwood.” The Metro bus, driven by Orville, “ran [the] red

light, causing [Garza] to take evasive action.” And, Garza drove over a curb and

collided with a traffic signal box. A witness stated that she was driving in the lane

beside the bus; that the light ahead of the bus was red; and that Garza had a green

light. The police report notes “Injury Severity” as “N.”

      The Supervisor’s Report reflects that the supervisor attended the scene on the

day of the collision. The supervisor, in his report, noted the date, time, and location

of the incident; identified the bus number, bus driver’s name, and Garza’s name,

address, and phone number; and described how the incident occurred. The report

notes that Garza’s car suffered “major” damage and the “Name of Injured” as “N/A.”

      In his response to Metro’s plea, Garza asserted that he gave Metro timely

notice of his claims. On November 30, 2015, his counsel sent an email to Rolando



                                          4
Tolentino in the “Claims Department” at Metro,3 with an attached letter of

representation, also dated November 30, 2015, and a copy of the police report. The

letter states that Garza had sustained personal injuries and property damage in the

collision and that he was asserting a claim against Metro, as follows:

      RE:    My Client:           Adan Garza
             Date of Loss:        11/03/2015
             Your Insured:        Leo Orville – Bus: 1568
      ....
      Please be advised that we represent Adan Garza for personal injuries
      and property damage sustained on [November 3, 2015]. . . .
      Our investigation reveals that your insured is legally responsible for this
      collision. If you have accepted liability, please send written
      confirmation of same. If you are disputing liability, please send us the
      basis of your denial in writing, including names, addresses and
      telephone numbers of any potential witnesses.
      Additionally, we request copies of any statement taken of our client,
      relevant photographs, accident reports and any line item appraisals of
      the property damage to each vehicle involved in this accident. Please
      contact my case manager, Veronica Mosqueda . . . .

      Garza asserted that, although Tolentino later stated that he could not find the

above letter, Tolentino, as Metro’s agent, acknowledged having received it, waived

any untimeliness, and accepted the claim. Garza presented an email from Tolentino,

dated November 3, 2016, in which he stated:

      I pulled the file and did not find your letter of representation. I checked
      our e-file and did not find the e-mail of November 30, 2015. At some
      point your office must have communicated with me because I did make
      a note the customer was legally represented. Because of this, I am

3
      In its brief, Metro identifies Tolentino as a “senior Metro claims adjuster.”
                                            5
      instructing the adjuster to accept the claim, assuming you maintain a
      reasonable value for settlement purposes.

      Garza further argued that Metro had actual notice of his claim because the

facts show, based on the police report, that Metro was the sole instrumentality of the

injury or harm that occurred and that Metro was aware of its fault.

      The trial court denied Metro’s plea to the jurisdiction and Metro appeals.

                               Plea to the Jurisdiction

      In its sole issue, Metro argues that the trial court erred in denying its plea to

the jurisdiction because it conclusively established its immunity from Garza’s suit.

Metro asserts that Garza presented “no evidence” raising a fact issue.

Standard of Review

      We review de novo a trial court’s ruling on a jurisdictional plea. See Ben Bolt-

Palito Blanco Consol. Indep. Sch. Dist. v. Tex. Political Subdivisions Prop./Cas.

Joint Self-Ins. Fund, 212 S.W.3d 320, 323 (Tex. 2006); City of Hous. v. Nicolai, 539

S.W.3d 378, 385 (Tex. App.—Houston [1st Dist.] 2017, pet. denied). 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). A plea to the

jurisdiction may be utilized to challenge whether the plaintiff has met its burden of

alleging jurisdictional facts or to challenge the existence of jurisdictional facts. See

Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226–27 (Tex. 2004).



                                           6
      Review of a plea challenging the existence of jurisdictional facts, as here,

mirrors that of a traditional summary-judgment motion. Mission Consol. Indep. Sch.

Dist. v. Garcia, 372 S.W.3d 629, 635 (Tex. 2012); City of Hous. v. Guthrie, 332

S.W.3d 578, 587 (Tex. App.—Houston [1st Dist.] 2009, pet. denied) (“By requiring

the [political subdivision] to meet the summary judgment standard of proof . . . , we

protect the plaintiffs from having to put on their case simply to establish

jurisdiction.” (internal quotations omitted)); see also TEX. R. CIV. P. 166a(c). “[A]

court deciding a plea to the jurisdiction . . . 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 court may consider evidence as

necessary to resolve a dispute over the jurisdictional facts even if the evidence

“implicates both the subject matter jurisdiction of the court and the merits of the

case.” Miranda, 133 S.W.3d at 226. We take as true all evidence favorable to the

nonmovant and we indulge every reasonable inference and resolve any doubts in the

nonmovant’s favor. Id. at 228. If the defendant meets its burden to establish that

the trial court lacks jurisdiction, the plaintiff is then required to show that there is a

material fact question regarding the jurisdictional issue. Id. at 227–28. If the

evidence raises a fact issue regarding jurisdiction, the plea cannot be granted, and a

fact finder must resolve the issue. Id. On the other hand, if the evidence is




                                            7
undisputed or fails to raise a fact issue, the plea must be determined as a matter of

law. Id. at 228.

Governmental Immunity

      Absent waiver, political subdivisions of the state are entitled to immunity

from lawsuits for money damages. See Reata Constr. Corp. v. City of Dall., 197

S.W.3d 371, 374 (Tex. 2006); Harris Cty., Tex. v. Knapp, 496 S.W.3d 871, 878 (Tex.

App.—Houston [1st Dist.] 2016, pet. denied). The immunity doctrine includes two

distinct principles: immunity from liability and immunity from suit. City of Dall. v.

Albert, 354 S.W.3d 368, 373 (Tex. 2011); Miranda, 133 S.W.3d at 224. Whereas

immunity from liability is an affirmative defense, immunity from suit deprives a

court of subject-matter jurisdiction. Knapp, 496 S.W.3d at 878.

      A trial court may not assume subject-matter jurisdiction over a suit against a

municipality unless the suit fits within a valid statutory or constitutional waiver of

governmental immunity. Suarez v. City of Tex. City, 465 S.W.3d 623, 631 (Tex.

2015). We interpret statutory waivers of governmental immunity narrowly, as the

legislature’s intent to waive immunity must be clear and unambiguous. Mission

Consol. Indep. Sch. Dist. v. Garcia, 253 S.W.3d 653, 655 (Tex. 2008); see also TEX.

GOV’T CODE § 311.034.

      Here, Metro is a governmental unit generally immune from tort liability,

except when that immunity has been specifically waived by the legislature. See TEX.

                                          8
TRANSP. CODE § 451.052; City of Hous. v. Todd, 41 S.W.3d 289, 295 (Tex. App.—

Houston [1st Dist.] 2001, pet. denied); see, e.g., Metro. Transit Auth. of Harris Cty.

v. Atkins, No. 14-11-00494-CV, 2011 WL 6809041, at *1 (Tex. App.—Houston

[14th Dist.] Dec. 22, 2011, no pet.) (mem. op.). The TTCA provides limited waivers

of immunity from suits against governmental entities for negligent acts in certain

circumstances, including property damage and personal injury arising from the

operation or use of a motor-driven vehicle. See TEX. CIV. PRAC. & REM. CODE

§ 101.021.    However, a plaintiff must comply with certain statutory notice

requirements. “Statutory prerequisites to a suit, including the provision of notice,

are jurisdictional requirements in all suits against a governmental entity.” TEX.

GOV’T CODE § 311.034. Thus, failure to provide required notice deprives the trial

court of jurisdiction and requires the court to dismiss the case. City of Dall. v.

Carbajal, 324 S.W.3d 537, 537–38 (Tex. 2010).

      The TTCA’s notice provision allows governmental entities to investigate

claims while the facts are fresh, to guard against unfounded claims, to settle claims,

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

of Tex. Health Sci. Ctr. at Hous. v. McQueen, 431 S.W.3d 750, 754 (Tex. App.—

Houston [14th Dist.] 2014, no pet.).            Section 101.101(a) provides that a

governmental unit is “entitled to receive notice of a claim against it . . . not later than

six months after the day that the incident giving rise to the claim occurred.” TEX.

                                            9
CIV. PRAC. & REM. CODE § 101.101(a). Such formal notice, which must be in

writing, must reasonably describe (1) the damage or injury claimed, (2) the time and

place of the incident, and (3) the incident. See id.; see also Cathey, 900 S.W.2d at

340 (requiring written notice). Claimants must also comply with any proper time

requirements for notice that a city has adopted by charter or ordinance. City of San

Antonio v. Tenorio, 543 S.W.3d 772, 776 (Tex. 2018); see TEX. CIV. PRAC. & REM.

CODE § 101.101(b) (“A city’s charter and ordinance provisions requiring notice

within a charter period permitted by law are ratified and approved.”).

      The written notice requirements in subsections (a) and (b) do not apply if a

governmental unit has actual notice. City of San Antonio, 543 S.W.3d at 776; see

also TEX. CIV. PRAC. & REM. CODE § 101.101(c); Cathey, 900 S.W.2d at 341.

However, knowledge that a death, injury, or property damage has occurred, standing

alone, is not sufficient to put a governmental unit on actual notice for TTCA

purposes. City of San Antonio, 543 S.W.3d at 776. 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. Id. Thus, the actual notice provision requires

that a governmental unit has subjective awareness that its fault, as ultimately alleged

by the claimant, produced or contributed to the claimed injuries. Id. A governmental

unit has actual notice under the TTCA if it has subjective knowledge of (1) a death,

injury, or property damage; (2) the governmental unit’s fault that produced or

                                          10
contributed to the death, injury, or property damage; and (3) the identity of the

parties involved. Id.

Discussion

       Metro argues that its governmental immunity has not been waived because it

did not have formal notice of Garza’s claim for personal injuries “within six months

of the incident.” See TEX. CIV. PRAC. & REM. CODE § 101.101(a). Metro further

asserts that it did not have actual notice of Garza’s claim for personal injuries. See

id. § 101.101(c).

      Formal Notice

      With respect to formal notice, the record shows that the collision occurred on

November 3, 2015. Thus, Garza was required to give Metro notice of his claim, in

accordance with the statute, no later than May 3, 2016. See id. § 101.101(a). Again,

such notice was required to describe (1) the damage or injury claimed, (2) the time

and place of the incident, and (3) the incident. See id.

      Metro presented, as its jurisdictional evidence, the letter from Garza’s counsel

dated September 29, 2016. Metro asserted that the letter, dated and received ten

months after the collision, constituted “the first notice that [Garza] was making a

claim for personal injuries.” Thus, it asserted, the September 29, 2016 letter did not

constitute timely formal notice under the TTCA. See id. Metro also argued that the

letter was insufficient to constitute formal notice under the TTCA because it did not

                                          11
include the location of the incident, the time of day of the incident, the bus route

number, the nature of any injuries sustained, or any facts regarding how the incident

occurred. See id.

       Because Metro presented evidence demonstrating that the trial court lacked

jurisdiction over Garza’s claims, the burden shifted to Garza to present evidence

demonstrating a material fact question on the jurisdictional issue. See Miranda, 133

S.W.3d at 227–28.

       Garza’s jurisdictional evidence reflects that, on November 30, 2015, his

counsel sent an email to Metro’s claims representative, Tolentino, to which Garza

attached a letter, also dated November 30, 2015, and a copy of the police report. The

letter states:

       RE:       My Client:       Adan Garza
                 Date of Loss:    11/03/2015
                 Your Insured:    Leo Orville – Bus: 1568
       ....
       Please be advised that we represent Adan Garza for personal injuries
       and property damage sustained on [November 3, 2015]. . . .
       Our investigation reveals that your insured is legally responsible for this
       collision. If you have accepted liability, please send written
       confirmation of same. If you are disputing liability, please send us the
       basis of your denial in writing, including names, addresses and
       telephone numbers of any potential witnesses.
       Additionally, we request copies of any statement taken of our client,
       relevant photographs, accident reports and any line item appraisals of
       the property damage to each vehicle involved in this accident. Please
       contact my case manager, Veronica Mosqueda . . . .


                                           12
Thus, the letter, sent 27 days after the collision, asserts Metro’s liability and states

that Garza sustained “personal injuries and property damage.” See TEX. CIV. PRAC.

& REM. CODE § 101.101(a) (requiring notice reasonably describing damage or injury

claimed provided within six months of incident).

       Further, Garza’s attached copy of the police report includes the date and time

of the incident; the location; identifies the vehicles and drivers, including Garza’s

address; and gives a narrative and diagram of what occurred. Thus, the police report

states the time and place of the collision and describes the incident.              See id.

(requiring notice reasonably describing incident, time, and place).

       We conclude that Garza presented evidence that he timely sent formal notice,

in accordance with the TTCA, to Metro. See id.

       On appeal, Metro first asserts, with respect to timing, that Garza’s counsel

having sent the November 30, 2015 notice by email was insufficient to constitute

notice. However, Metro provides no authority in support of its assertion. See TEX.

R. APP. P. 38.1(i).

       Metro also asserts that it did not actually receive Garza’s November 30, 2015

notice. Section 101.101(a) provides that a governmental unit “is entitled to receive

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 § 101.101(a)




                                            13
(emphasis added). The record shows, however, that Garza also presented an email

from Tolentino, dated November 3, 2016, in which he stated, in relevant part:

      I pulled the file and did not find your letter of representation. I checked
      our e-file and did not find the e-mail of November 30, 2015. At some
      point your office must have communicated with me because I did make
      a note the customer was legally represented. Because of this, I am
      instructing the adjuster to accept the claim, assuming you maintain a
      reasonable value for settlement purposes.

      In reviewing the trial court’s ruling on the plea, we take as true all evidence

favorable to the nonmovant and we indulge every reasonable inference and resolve

any doubts in the nonmovant’s favor.           Miranda, 133 S.W.3d at 228.          Thus,

Tolentino’s email, in which he acknowledges having received Garza’s notice and

states that he is “instructing the adjuster to accept the claim, assuming [Garza]

maintain[s] a reasonable value for settlement purposes,” constitutes some evidence

raising a fact question as to whether Metro timely received Garza’s notice. See id.

at 227–28 (holding plaintiff must present evidence raising material fact question

regarding jurisdictional issue); see also Goodyear Tire & Rubber Co. v. Mayes, 236

S.W.3d 754, 755 (Tex. 2007) (stating that evidence raises fact question if reasonable

and fair-minded jurors could differ in their conclusions in light of all evidence

presented); Dinh v. Harris Cty. Hosp. Dist., 896 S.W.2d 248, 253 (Tex. App.—

Houston [1st Dist.] 1995, writ dismissed w.o.j.) (holding notice “may be imputed to

the government by an agent or representative who has a duty to gather facts and

investigate”).
                                          14
      Metro next asserts that, even if timely received, Garza’s November 30, 2015

letter and police report fail to meet the requisite substantive elements for formal

notice. As discussed above, Garza’s jurisdictional evidence meets the statutory

requirements. See TEX. CIV. PRAC. & REM. CODE § 101.101(a).

      Metro argues that Garza’s evidence fails to meet the substantive requirements

because it is “silent as to . . . the nature of any injuries allegedly sustained.” In City

of Wichita Falls v. Jenkins, the court held that a notice letter from the plaintiff’s

counsel to the city stating that the plaintiffs had sustained “personal injuries and

other damages” constituted sufficient notice of the injuries, as required in section

101.101(a). 307 S.W.3d 854, 860 (Tex. App.—Fort Worth 2010, pet. denied). The

city argued that mere notice that a person had sustained a personal injury was not

enough and that a more detailed description of the nature and extent of the plaintiffs’

injuries was required to put it on notice so that it could “properly triage and prioritize

claims.”    Id. The court concluded that such is “not the purpose of the notice

requirement,” rather, “all that is required is enough information for the City to

investigate for the purpose of guarding against unfounded claims, settle claims, and

prepare for trial.” And, the letter offered “enough information to allow the City to

effect this purpose.” Id. (citing Richardson v. Allen, No. 05–96–00018–CV, 1997

WL 242812, at *3 (Tex. App.—Dallas May 13, 1997, no pet.) (not designated for




                                           15
publication) (holding that “there is no requirement that a claimant describe in full

medical detail the nature and extent of her injury”)).

      Metro also asserts that Garza’s evidence fails to meet the substantive

requirements because the police report states that no injuries were observed or

reported at the scene.        The court in Jenkins, addressing the same argument,

concluded that a police report from the scene, stating that “the occupants did not

appear to be injured and drove away from the accident, although possibly relevant

for trial purposes (subject to an evidentiary determination by the trial judge), did not

negate the City’s notice.” See id. at 861. Generally, a police report from the scene

merely constitutes “an initial response to the accident.” City of Dall., 324 S.W.3d at

537. Here, the letter from Garza’s counsel to Metro affirmatively claims that Garza

suffered personal injuries.

      We conclude that Garza presented evidence sufficient to raise a material fact

question on the jurisdictional issue.       See Miranda, 133 S.W.3d at 227–28.

Accordingly, we hold that the trial court did not err in denying Metro’s plea to the

jurisdiction. See id. (holding that if evidence raises fact issue regarding jurisdiction,

plea cannot be granted and fact finder must resolve issue).

      We overrule Metro’s sole issue.




                                           16
                                    Conclusion

      We affirm the trial court’s order.




                                                Sherry Radack
                                                Chief Justice

Panel consists of Chief Justice Radack and Justices Goodman and Countiss.




                                           17
