                              NUMBER 13-06-405-CV

                            COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI - EDINBURG


JOE GUADALUPE BALLESTEROS,                                                  Appellant,

                                           v.

NUECES COUNTY, TEXAS                                                         Appellee.


                   On appeal from the 347th District Court
                         of Nueces County, Texas.


              DISSENTING OPINION ON REHEARING

                Before Justices Yañez, Benavides and Vela
             Dissenting Opinion on Rehearing by Justice Vela

      I agree with the majority’s holding on rehearing that section 89.0041 of the Texas

Local Government Code is not jurisdictional. See TEX . LOC . GOV’T CODE ANN . § 89.0041

(Vernon 2008). However, I disagree that substantial compliance is all that is required

under the statute. As such, I would grant the motion for rehearing, but I would affirm the
trial court’s order dismissing the case for failure to comply with the statute.

       Appellant argues that the trial court erred in granting the County’s motion because

he either complied with the notice requirements set forth in Texas Local Government Code

section 89.0041, or he was not required to comply because the County had actual notice

of his claim based on his pursuit of the same claim in a dismissed federal court action.

See TEX . LOC . GOV’T CODE ANN . § 89.0041.

       Section 89.0041 of the Texas Local Government Code, entitled “Notice of Suit

Against County,” effective September 1, 2005, requires:

       (a)    A person filing suit against a county or against a county official in the
              official’s capacity as a county official shall deliver written notice to:
                       (1)   the county judge, and
                       (2)   the county or district attorney having jurisdiction to
                             defend the county in a civil suit.
       (b)    The written notice must be delivered by certified or registered mail by
              the 30th business day after suit is filed and contain:
                       (1)   the style and cause number of the suit;
                       (2)   the court in which the suit was filed;
                       (3)   the date on which the suit was filed;
                       (4)   the name of the person filing suit.
       (c)    If a person does not give notice as required by this section, the court
              in which the suit is pending shall dismiss the suit on motion for
              dismissal made by the county or the county official. (emphasis
              added).

TEX . LOC . GOV’T CODE ANN . § 89.0041.

       It is undisputed that Ballesteros did not meet the specified requirements of section

89.0041. He filed an original petition against the County in state district court. Ballesteros

served the county judge, but he did not timely provide written notice to the county judge or

the Nueces County Attorney by certified or registered mail. While he suggests to this Court

that he was not required to comply because the federal court remanded the case to state



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court, the federal court, in fact, did not remand the case, but dismissed it without prejudice.

The case before the trial court was a new suit against the County filed after the effective

date of section 89.0041. Thus, the issue here narrows to whether substantial compliance

is sufficient to maintain the suit.

        There is nothing in the language of the local government code that would relieve

Ballesteros from compliance and the majority opinion appears to agree with this

proposition. The plain language of the code requires a plaintiff to provide notice to certain

county officials of specific items within thirty days of filing a civil suit, and it prescribes the

means by which notice must be given, either by certified or registered mail. TEX . LOC .

GOV’T CODE ANN . § 89.0041. Ballesteros did not specifically comply with the statute

because he did not deliver timely written notice to the county judge or the county or district

attorney by certified or registered mail. If a statute is clear and unambiguous courts,

should afford it its common meaning. Tex. Dep’t. of Transp. v. City of Sunset Valley, 146

S.W.3d 637, 642 (Tex. 2004).

        Subsections (a) and (b) of the newly-enacted section provide that written notice of

specific information is to be given by a specific time to certain named individuals, in a

particular manner. TEX . LOC . GOV’T CODE ANN . § 89.0041(a), (b). Subsection (c) provides

that the court shall dismiss, if the person does not give the required notice pursuant to

subsections (a) and (b). TEX . LOC . GOV’T CODE ANN . § 89.0041(c). The word “shall”

imposes a duty. TEX . GOV’T CODE ANN . § 311.016(2) (Vernon 2005). The statute further

indicates that notice “must” be given by registered or certified mail. The word “must”

creates or recognizes a condition precedent. TEX . GOV’T CODE ANN . § 311.016(3) (Vernon

2005). While certain statutes, such as the Texas Tort Claims Act, suspend notice

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requirements if the governmental unit has actual notice, section 89.0041 does not contain

a similar provision. See TEX . CIV. PRAC . & REM . CODE ANN . § 101.101(c) (Vernon 2005).

On its face, the statute gives specific directives to the trial court. There is no language in

the statute allowing the trial court to utilize its discretion to determine if a party has

substantially complied with the statute.

       I would hold that the Legislature did not intend to enact a useless statute. See

Armstrong v. Hixon, 206 S.W.3d 175, 182 (Tex. App.–Corpus Christi 2006, pet. denied).

Here, the local government code mandates the dismissal of the case for failure to comply

with its terms. If this statute is not interpreted as mandatory, it will have little or no

meaning. Section 89.0041 was enacted in addition to those presentment statutes already

in effect and must be construed in addition to all other notice and presentment

requirements. The equities certainly favor Ballesteros. Both sides had been previously

engaged in litigation in this very matter and the County and its officials were aware of his

claims. However, I believe the trial court had no choice but to follow the statute. It would

be a harsh application in this case and seemingly a trap for the unwary in future cases.

However, the statute contains no exceptions, making compliance mandatory. The statute

says what it says. If that it is not what was intended, it is for the legislature to change the

statute.



                                                   Rose Vela
                                                   Justice



Dissenting Opinion on Rehearing delivered
and filed this 14th day of May, 2009.

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