Opinion issued August 31, 2018




                                      In The

                              Court of Appeals
                                     For The

                         First District of Texas
                            ————————————
                              NO. 01-17-00493-CV
                           ———————————
                 JEFFERSON COUNTY, TEXAS, Appellant
                                        V.
    ELLARENE FARRIS, INDIVIDUALLY AND AS PERSONAL
REPRESENTATIVE OF THE HEIRS AND ESTATE OF JAMES FARRIS,
                        Appellee


                   On Appeal from the 11th District Court
                           Harris County, Texas
                     Trial Court Case No. 2005-09580


                           DISSENTING OPINION

            [Judge James] Farris, who was 72 when he died, spent almost
     his entire legal career[, until retiring in 1996,] in the Jefferson County
     courthouse[, which included a period of asbestos remediation at the
     courthouse, during which he was allegedly exposed to the deadly
     fibers] . . . .
      ....

             “He had just given a speech in Idaho in October 2004,” Ellarene
      Farris said. “He came home and said he couldn’t do it anymore. He
      went into the hospital and nine days later, he was dead.”

            She said her husband had no idea he suffered from
      mesothelioma, a cancer of the lining of the lungs. The symptoms
      began as an abdominal pain that wouldn’t quit and ended soon after
      with a struggle to breathe.1

      Because the majority errs in misconstruing Texas Supreme Court precedent

and dismissing the wrongful death and survival action of appellee, Ellarene Farris,

against appellant, Jefferson County, Texas, for failure, pursuant to the Texas Tort

Claims Act, to provide “timely” notice in 1997 of a non-existent claim, I

respectfully dissent.

      The Texas Tort Claims Act waives governmental immunity to suit in certain

specified circumstances. See TEX. CIV. PRAC. & REM. CODE ANN. §§ 101.021–.29

(Vernon 2011). And the statute provides:

      A governmental unit is entitled to receive notice of a claim against it
      under this chapter not later than six months after the day that the
      incident giving rise to the claim occurred. The notice must reasonably
      describe:

             (1) the damage or injury claimed;

1
      Dan Wallach, Death Suit Blaming Asbestos in Jefferson County Courthouse Could
      End, BEAUMONT ENTERPRISE, Sept. 12, 2016, https://www.beaumontenterprise.co
      m/news/article/Death-suit-blaming-asbestos-in-Jefferson-County-9217178.php
      (emphasis added) (Exhibit 3 to Jefferson County’s Amended Plea to the
      Jurisdiction and Amended Motion for Summary Judgment and Amended No
      Evidence Motion for Summary Judgment).
                                        2
               (2) the time and place of the incident; and

               (3) the incident.

Id. § 101.101(a) (Vernon 2011) (emphasis added). Clearly, the statute “does not

require notice of a nonexistent claim.” Hous. Auth. of Beaumont v. Landrio, 269

S.W.3d 735, 745 (Tex. App.—Beaumont 2008, pet. denied) (citing Univ. of Tex.

Sw. Med. Ctr. at Dall. v. Loutzenhiser, 140 S.W.3d 351, 356 (Tex. 2004),

superseded by statute on other grounds, Act of May 25, 2005, 79th Leg., R.S., ch.

1150, § 1, 2005 Tex. Gen. Laws 3783 (codified at TEX. GOV’T CODE ANN.

§ 311.034)).

      Judge Farris died of mesothelioma on November 5, 2004, a mere nine days

after exhibiting his first symptoms of illness and nearly eight years after his last

exposure to asbestos in the Jefferson County courthouse and annex in December

1996. His widow, Ellarene, provided, pursuant to the Texas Tort Claims Act,

Jefferson County with written notice of her claims against it on April 4, 2005, less

than six months after the emergence of Judge Farris’s first symptoms and,

ultimately terminal, diagnosis.     Stunningly, the majority holds that the claims

asserted by Ellarene are barred by governmental immunity because she did not

provide notice of them to Jefferson County within six months of Judge Farris’s

final exposure to asbestos in December 1996—before the existence of any injury

or damage. See TEX. CIV. PRAC. & REM. CODE § 101.101(a).
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      Based on the majority’s reasoning, Judge Farris was required to provide

Jefferson County with notice of a premature and speculative claim within six

months of December 1996. See Childs v. Haussecker, 974 S.W.2d 31, 43 (Tex.

1998) (“Requiring plaintiffs to file suit based only upon their suspicions about

causal connections is . . . undesirable in latent occupational disease cases because,

among other things, plaintiffs would be compelled to file premature, speculative

claims.”). But at that time, Judge Farris did not yet have a claim against Jefferson

County for which he could provide notice because it was nearly eight years before

he exhibited any symptom or was diagnosed with mesothelioma, i.e., before any

damage or injury to him had come into existence. See TEX. CIV. PRAC. & REM.

CODE ANN. § 101.101(a).          Instead, his claim relating to a malignant

asbestos-related condition arising from his employment with Jefferson County did

not accrue until his diagnosis or the manifestation of symptoms that put him on

notice of his condition. See Pustejovsky v. Rapid-Am. Corp., 35 S.W.3d 643, 653

(Tex. 2000); see also Childs, 974 S.W.2d at 33 (accrual of damages in latent-

disease cases not until “plaintiff’s symptoms manifest themselves to a degree or for

a duration that would put a reasonable person on notice”).

      Here, as previously explained by the Texas Supreme Court, Judge Farris’s

exposure to asbestos in the Jefferson County courthouse and annex “was only an

incident—one of two—giving rise to [any] claim” he might have against Jefferson


                                         4
County. Loutzenhiser, 140 S.W.3d at 356 (emphasis in original). In Loutzenhiser,

a mother, individually and on behalf of her child, brought suit against the

University of Texas Southwestern Medical Center at Dallas, alleging that a

chorionic villus sampling (“CVS”), a prenatal diagnostic test, performed by the

Medical Center caused her child to be born with birth defects. Id. at 354. The

court held that section 101.101(a)’s six-month-notice period ran from the birth of

the child, not the date that the Medical Center performed the CVS. Id. at 356. The

court explained:

      The Medical Center argues that “the incident giving rise to the claim”
      was the CVS, but the CVS was only an incident—one of two—giving
      rise to the claim. The other such incident, and one equally necessary
      to the existence of the claim, was [the child’s] live birth. If the notice
      period ran from the CVS, the statute required notice of a nonexistent
      claim. “Courts should not read a statute to create such an absurd
      result.” We decline to do so here when there is a reasonable
      alternative construction of the statutory language. Because [the
      child’s] live birth was an incident giving rise to his claim, and one
      essential to the existence of the claim, we hold that the six-month
      period for giving notice began when [the child] was born.[2]

Id. at 356–57 (quoting Barshop v. Medina Cty. Underground Water Conservation

Dist., 925 S.W.2d 618, 629 (Tex. 1996)).




2
      The baby, until born, legally had no claim because of “the longstanding common
      law rule . . . that the rights of a fetus [are] contingent on live birth.” Univ. of Tex.
      Sw. Med. Ctr. at Dall. v. Loutzenhiser, 140 S.W.3d 351, 356 (Tex. 2004)
      (second alteration in original) (internal quotations omitted).

                                             5
         As in Loutzenhiser, if the notice period in this case runs from Judge Farris’s

last exposure to asbestos, it would require “notice of a nonexistent claim.” See id.

at 356. Thus, section 101.101(a)’s notice period must run from the date that Judge

Farris’s injuries and damages arose, nine days before his death.

         In   reaching   the   opposite   conclusion,   the   majority   misconstrues

well-established Texas Supreme Court precedent, including Loutzenhiser. Because

Judge Farris had not suffered any damage or injury, and did not even arguably

have a claim against Jefferson County, until nine days before his death, I would

hold that Ellarene’s notice, provided within six months of Judge Farris’s first

symptoms and, ultimately terminal, mesothelioma diagnosis, was timely.

         The majority’s conclusion to the contrary should be corrected by our high

court.    See TEX. GOV’T CODE ANN. § 22.001(a) (Vernon Supp. 2017) (“The

supreme court has appellate jurisdiction . . . if the court determines that the appeal

presents a question of law that is important to the jurisprudence of the state.”).




                                                Terry Jennings
                                                Justice

Panel consists of Justices Jennings, Massengale, and Caughey.

Jennings, J., dissenting


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