Opinion filed August 31, 2018




                                       In The

        Eleventh Court of Appeals
                                    __________

                                No. 11-16-00265-CV
                                    __________

                         DARVUS HENRY, Appellant
                                          V.
                       CITY OF MIDLAND, Appellee


                 On Appeal from the County Court at Law No. 2
                            Midland County, Texas
                      Trial Court Cause No. CC-18,449


                       MEMORADUM OPINION
      Darvus Henry challenges the trial court’s order granting the City of Midland’s
plea to the jurisdiction. Henry filed suit against the City for a claim arising out of a
single-vehicle accident that occurred in Midland. In a single issue, Henry contends
that the trial court erred in granting the City’s plea to the jurisdiction on the basis
that the City did not receive timely notice of Henry’s claims. We affirm.
                                  Background Facts
      Henry was involved in a single-vehicle accident in Midland. He subsequently
filed suit against the City, alleging that he suffered personal injuries arising out of
the accident. Henry alleged that “a manhole cover caught the underside” of his
vehicle. He pleaded that the manhole cover was tangible physical property that the
City had negligently maintained. Henry pleaded in the alternative that the manhole
cover was a special defect or premises defect.
      The City filed a plea to the jurisdiction, asserting that Henry failed to timely
provide notice to the City of his claims. Henry asserted that he had satisfied the
statutory notice requirements because a City of Midland employee, a police officer,
prepared a police accident report. Henry contends that the police accident report
provided the City with actual notice. After conducting a hearing, the trial court
granted the City’s plea to the jurisdiction.
                                       Analysis
      In a single issue on appeal, Henry asserts that the trial court erred in granting
the City’s plea to the jurisdiction. “A plea to the jurisdiction is a dilatory plea, the
purpose of which is 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 over a
pleaded cause of action. Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d
217, 225–26 (Tex. 2004). Subject-matter jurisdiction is a question of law. Id. at
226. Therefore, we apply a de novo standard of review to a trial court’s ruling on a
plea to the jurisdiction. Id.
      “A jurisdictional plea may challenge the pleadings, the existence of
jurisdictional facts, or both.” Alamo Heights Indep. Sch. Dist. v. Clark, 544 S.W.3d
755, 770 (Tex. 2018). In this appeal, the City is challenging the existence of


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jurisdictional facts.1        If the governmental unit challenges the existence of
jurisdictional facts, we consider the relevant evidence submitted. Miranda, 133
S.W.3d at 227. The standard of review mirrors that of a traditional motion for
summary judgment. Clark, 544 S.W.3d at 771 (citing Miranda, 133 S.W.3d at 225–
26). If the governmental unit’s evidence shows that the trial court lacks jurisdiction,
then the plaintiff must show that there is a disputed material fact on the issue. See
Miranda, 133 S.W.3d at 228. In determining whether a material fact issue exists,
we must take as true all evidence favorable to the plaintiff, indulging every
reasonable inference and resolving any doubts in the plaintiff’s favor. Clark, 544
S.W.3d at 771. If a fact issue exists, the trial court should deny the plea. Mission
Consol. Indep. Sch. Dist. v. Garcia, 372 S.W.3d 629, 635 (Tex. 2012). “But if the
relevant evidence is undisputed or the plaintiff fails to raise a fact question on the
jurisdictional issue, the trial court rules on the plea as a matter of law.” Id.
        Governmental entities are generally immune from suits seeking to impose tort
liability on them. Ryder Integrated Logistics, Inc. v. Fayette Cty., 453 S.W.3d 922,
926 (Tex. 2015). That immunity deprives trial courts of subject-matter jurisdiction
over such suits, absent a waiver of immunity. Id. at 927. The Texas Tort Claims
Act (TTCA) contains such a waiver if notice prescribed by statute is given. City of
San Antonio v. Tenorio, 543 S.W.3d 772, 775 (Tex. 2018) (citing City of Dallas v.
Carbajal, 324 S.W.3d 537, 537–38 (Tex. 2010)); see TEX. GOV’T CODE ANN.
§ 311.034 (West 2013). “The purpose of the notice requirement is to ensure prompt
reporting of claims in order 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).


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         We note that Henry did not plead any jurisdictional facts with respect to providing the City with
notice of his claim.

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      As recently noted by the Texas Supreme Court in Tenorio:
      Under the TTCA, a governmental unit must be given 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). This notice of claim must describe “(1) the damage or
      injury claimed; (2) the time and place of the incident; and (3) the
      incident.” Id. Claimants must also comply with any proper time
      requirements for notice that a city has adopted by charter or ordinance.
      Id. § 101.101(b) (“A city’s charter and ordinance provisions requiring
      notice within a charter period permitted by law are ratified and
      approved.”).
543 S.W.3d at 775; see TEX. CIV. PRAC. & REM. CODE ANN. § 101.101 (West 2011).
The City of Midland’s charter requires written notice of claim within sixty days after
the injury or damage is sustained. See MIDLAND, TEX., CITY CHARTER art. III, § 8.
There is no contention in this case that Henry timely provided formal written notice
of his claim pursuant to the requirements of Section 101.101 and the Midland City
Charter. Instead, Henry contends that the City had actual notice of his claim.
      Under Section 101.101(c) of the Texas Civil Practice and Remedies Code,
written notice requirements in the TTCA do not apply if a governmental unit has
actual notice. Tenorio, 543 S.W.3d at 776. “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.” Id. (citing Cathey, 900 S.W.2d at 341).
To have actual notice, a governmental unit must have the same knowledge that it is
entitled to receive under the written notice provisions of the TTCA. Id. (citing Tex.
Dep’t of Criminal Justice v. Simons, 140 S.W.3d 338, 347 (Tex. 2004)). “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 contributed to the death, injury, or property damage; and (3) the identity
of the parties involved.” Id. (citing Cathey, 900 S.W.2d at 341). Furthermore, “the
actual notice provision requires that a governmental unit has subjective awareness
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that its fault, as ultimately alleged by the claimant, produced or contributed to the
claimed injuries.” Id.
      Whether a governmental unit has actual notice is a fact question when the
evidence is disputed, but it is a question of law when the evidence is undisputed. Id.
(citing Simons, 140 S.W.3d at 348). In this case, the evidence pertaining to notice
is undisputed. As noted previously, Henry relies on a police accident report prepared
by Midland Police Officer David Edwards to assert that the City had actual notice
of his claim.
      If there was an investigation of the accident by a governmental entity, whether
the investigation gathered sufficient information to provide the governmental entity
with actual notice depends upon the facts of the case. Tenorio, 543 S.W.3d at 776.
The claimant in Carbajal alleged that a police accident report provided the City of
Dallas with actual notice of her claim against the city. 324 S.W.3d at 537. The
Texas Supreme Court noted that merely investigating an accident is insufficient to
provide actual notice under the TTCA. Id. at 538 (citing Simons, 140 S.W.3d at
347–48). In order for a police accident report to provide the requisite actual notice,
it must provide the governmental unit with actual, subjective awareness of its fault.
Id. at 538–39.
      Officer Edwards’s narrative of the accident, as stated in the police accident
report, reads as follows: “[Henry’s van] was SB on Midkiff in the inside LN. It
appears the drive shaft dropped causing the back left wheels to lock up and pulling
the van to the left. [Henry] over steered back to the right and struck the curb on the
northwest corner of Midkiff and Kansas.” There is no reference in either Officer
Edwards’s narrative or other portions of his police accident report that a manhole
cover was a cause of the accident or that the City’s maintenance of the manhole
cover was a cause of the accident. Furthermore, the police accident report indicates
that Henry was not injured as a result of the accident. Thus, the report failed to
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provide the City with notice of its alleged fault in producing or contributing to
Henry’s injuries. In the absence of this information, the report was insufficient to
provide actual notice under the TTCA. See Tenorio, 543 S.W.3d at 776–78;
Carbajal, 324 S.W.3d at 538–39; Simons, 140 S.W.3d at 347–48. Therefore, the
trial court did not err in granting the City’s plea to the jurisdiction. We overrule
Henry’s sole issue on appeal.
                                         This Court’s Ruling
        We affirm the judgment of the trial court.




                                                                   JOHN M. BAILEY
                                                                   JUSTICE


August 31, 2018
Panel consists of: Bailey, J.;
Gray, C.J., 10th Court of Appeals2;
and Wright, S.C.J.3

Willson, J., not participating.




        2
         Tom Gray, Chief Justice, Court of Appeals, 10th District of Texas at Waco, sitting by assignment
to the 11th Court of Appeals.
        3
          Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland,
sitting by assignment.

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