                                    COURT OF APPEALS
                                 EIGHTH DISTRICT OF TEXAS
                                      EL PASO, TEXAS

 CITY OF EL PASO/ ELIZABETH                      §
 HERNANDEZ AND LUCIA                                             No. 08-09-00149-CV
 HERNANDEZ,                                      §
                                                                    Appeal from the
               Appellant/Cross-Appellants,       §
                                                              34th Judicial District Court
 v.                                              §
                                                               of El Paso County, Texas
                                                 §
 ELIZABETH HERNANDEZ AND                                           (TC# 2008-3886)
 LUCIA HERNANDEZ/ THE CITY OF                    §
 EL PASO ,
                                                 §
               Appellees/Cross-Appellee.

                                           OPINION

       This is a double appeal from the trial court’s order granting in part, and denying in part

the City of El Paso’s (the “City”) plea to the jurisdiction. The City challenged the trial court’s

jurisdiction on the basis that the plaintiffs, Elizabeth and Lucia Hernandez, failed to comply with

the Texas Tort Claims Act’s pre-suit notice requirements, and that the petition failed to state a

claim within the Act’s waiver of sovereign immunity. The trial court granted the plea expressly

on the basis that the Hernandezes’ failed to provide the City with notice, but specifically denied

the City’s alternative argument, and dismissed the case with prejudice. Both parties appeal.

       On October 17, 2006, at approximately 7 p.m., Elizabeth Hernandez and two friends were

walking toward Bel Air High School on Yarbrough Road in El Paso to watch a volleyball game.

The girls crossed the street at the school cross-walk, but because it was after school hours the

school zone lights at the crossing were not active. Two cars approached the cross-walk on

southbound Yarbrough. The car in the left, south-bound lane stopped for Ms. Hernandez and her
friends to cross, but the car in the right, south-bound lane passed the stopped car and struck

Ms. Hernandez.

       The impact propelled Ms. Hernandez into the vehicle’s windshield, and then she fell to

the street unconscious. She was rushed to Thomason Hospital where she was treated for injuries

to her head, face, nose, teeth, right arm and elbow, her right hand, both shoulders, both legs, both

knees, her waist, and her back. She remained in the hospital until October 22, and has undergone

at least two surgical procedures to repair the damage to her right arm. She was not able to return

to school until February 2007, and was forced to delay her graduation from high school.

       On October 10, 2008, Ms. Hernandez and her mother, Lucia Hernandez, filed suit against

the driver of the car and the City of El Paso for negligence.1 The Original Petition included

allegations of negligence against the City for misuse of the safety lights at the school crossing,

for failing to activate the lights for a school sports function, and for permitting a dangerous

condition on the real property at the school. The City’s answer included a plea to the

jurisdiction, in which it argued the trial court was deprived of subject-matter jurisdiction over the

suit: (1) due to the Hernandezes’ failure to comply with statutory pre-suit notice requirements;

and (2) because the Hernandezes’ petition did not allege facts which demonstrated a waiver of

sovereign immunity. In an amended answer and plea, the City reasserted its notice and sovereign

immunity jurisdictional arguments, and added several special exceptions to the Hernandezes’

negligence allegations. The Hernandezes responded to the City’s plea, and amended the petition

to include additional allegations regarding jurisdiction. There was no evidence attached or



       1
        The Hernandezes subsequently settled with the driver who struck Ms. Hernandez. That
individual is not a party to this appeal.

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included in either document.

       The City filed a supplemental brief in support of its plea, and attached several exhibits

including:

       Exhibit A:     An affidavit by Ms. Norma Castillo, the Secretary to the
                      Mayor of the City of El Paso, in which she avers that the
                      mayor’s office did not receive a Notice of Claim letter from
                      the Hernandezes.

       Exhibit B:     The “Texas Peace Officer’s Crash Report” generated by the
                      officers who responded to the accident.

       Exhibit C:     Photographs of the Yarbrough cross-walk and nearby
                      intersection.

       Exhibit D:     An affidavit by Mr. Ted Marquez, the Assistant City
                      Engineer for the City of El Paso, in which he states that the
                      City’s municipal code regarding school zones requires
                      school zone and school crossing safety equipment to be
                      active forty-five minutes before the opening of first class,
                      and will shut down thirty minutes after the end of the last
                      class of the day.

       Exhibit E:     An affidavit by Mr. Daryl Cole, the Director of the City’s
                      Streets Department. Mr. Cole’s affidavit also stated the
                      operation schedule for safety devices in school zones, and
                      stated that his department had not received any complaints
                      regarding the Yarbrough and Bel Air High School zone
                      devices between August 1, 2006 and December 1, 2006.

       The trial court held a hearing on the City’s plea on February 18, 2009. The City put on

the same evidence described above, while the Hernandezes argued the allegations contained in

the petition fell within the parameters of a sovereign immunity waiver under the Texas Tort

Claims Act (TTCA). On the issue of pre-suit notice, the Hernandezes argued that the City had

actual knowledge of the incident and Ms. Hernandez’s injuries through the responding police

officers’ investigation and reports. The Hernandezes offered no evidence at the hearing.


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       The trial court entered written order dismissing the case with prejudice on May 7, 2009.

The court’s order specifies that the plea was granted based on the Hernandezes’ “failure to

comply with the pre-suit notice of claims under the [TTCA].” The Court’s order also specifically

denied the City’s plea on the basis that the Hernandezes failed to state a claim under the TTCA.

Both parties filed notices of appeal on May 26, 2009. In its Appellant’s brief, the City raises a

single issue challenging the trial court’s denial of its plea based on the doctrine of governmental

immunity due to the Hernandezes’ alleged failure to state a TTCA claim. In their Appellant’s

brief, the Hernandezes raise two issues: (1) challenging the trial court’s decision to grant the

City’s plea on pre-suit notice grounds; and (2) arguing that they have met their burden to plead a

claim within the TTCA’s waiver of sovereign immunity. Finally, in its response to the

Hernandezes’ brief, the City contends the Hernandezes have not plead a claim which falls within

the TTCA. For ease of reference, we will conduct our analysis by issue beginning with the

question of the Hernandezes’ compliance with the TTCA’s pre-suit notice requirements.

       A plea to the jurisdiction based on governmental immunity is a challenge to the trial

court’s subject-matter jurisdiction. State v. Holland, 221 S.W.3d 639, 642 (Tex. 2007). Because

such a challenge presents a question of law, we review a court’s ruling on a plea to the

jurisdiction de novo. Holland, 221 S.W.3d at 642. The pleadings are the central focus of such a

review, and they will be construed in the plaintiff’s favor, with an eye toward the pleader’s intent.

See Tex. Dept. of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004). We will

consider the pleadings, and any evidence relevant to the jurisdictional issue presented, without

regard to the merits of the case itself. Miranda, 133 S.W.3d at 226. Our primary inquiry is

whether the plaintiff’s pleadings allege facts sufficient to demonstrate that jurisdiction exists.


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Holland, 221 S.W.3d at 642-43.

        Absent the unit’s consent, governmental immunity deprives a trial court of subject-matter

jurisdiction over suits against the State, and certain governmental entities. Miranda, 133 S.W.3d

at 224. The Texas Tort Claims Act (TTCA) provides a limited waiver of governmental

immunity, under which a governmental unit’s immunity from suit exists side-by-side with its

immunity from liability. Id. at 224-25; see TEX .CIV.PRAC.&REM .CODE ANN . §§ 101.001-

101.109 (Vernon 2011). As the standard of review reflects, it is the plaintiff’s burden to

demonstrate a waiver of governmental liability provided by the TTCA. Dallas Area Rapid

Transit v. Whitley, 104 S.W.3d 540, 542 (Tex. 2003). To determine whether the plaintiff has met

its burden, we consider the facts alleged in the petition, and to the extent it is relevant to the

jurisdictional question presented, evidence submitted by the parties. Id.

        In addition to demonstrating a factual basis for a waiver of governmental immunity, the

TTCA also requires a plaintiff to provide pre-suit notice of a claim. See TEX .CIV .PRAC.&REM .

CODE ANN . § 101.101. The notice provision states:

        (a)     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;

                (2)     the time and place of the incident; and

                (3)     the incident.
                                         .         .          .

        (c)     The notice requirements provided or ratified and approved by Subsections
                (a) and (b) do not apply if the governmental unit has actual notice that
                death has occurred, that the claimant has received some injury, or that the
                claimant’s property has been damaged.


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TEX .CIV .PRAC.&REM .CODE ANN . § 101.101(a), (c). Failure to give notice deprives the trial

court of jurisdiction, and the trial court must dismiss the case. See Crane County v. Saults, 101

S.W.3d 764, 768 (Tex.App.--El Paso 2003, no pet.). However, under Section 101.101(c), the

notice requirement does not apply if the governmental unit has “actual notice” of the death,

injury, or property damage claimed. See TEX .CIV .PRAC.&REM .CODE ANN . § 101.101(c). Still,

mere notice that an incident has occurred it not sufficient to establish “actual notice.” Cathey v.

Booth, 900 S.W.2d 339, 341 (Tex. 1995). “Actual notice,” for TTCA purposes is established by

the governmental entity’s: (1) knowledge of a death injury, or property damage; (2) subjective

awareness that its fault produced or contributed to the claimed injury; and (3) knowledge of the

identity of the parties involved. Tex. Dept. of Criminal Justice v. Simons, 140 S.W.3d 338, 344-

47 (Tex. 2004), citing Cathey, 900 S.W.2d at 341. Although actual notice can be a fact issue

when evidence is in dispute, it is generally a question of law. Simons, 140 S.W.3d at 348.

       In both its original and amended pleas to the jurisdiction, the City raised the

Hernandezes’ failure to comply with the TTCA’s pre-suit notice requirement as grounds for

dismissal of the case for lack of subject-matter jurisdiction. In both filings, the City alleged that

the first notice, statutory or otherwise, that it received regarding the incident was on October 15,

2008, when it was served with the Hernandezes original petition in this suit. In the pleadings,

and in response to the City’s plea, the Hernandezes relied on TTCA Section 101.101(c), the

“actual notice” exception to the TTCA’s statutory notice requirement. The Hernandezes rely on

the court’s duty to interpret the pleadings in the favor of jurisdiction, and have not presented, or

cited this Court to any evidence in support of their averment that the City had “actual notice” of

the incidence within six months of its date.


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       While the pleadings are the central focus of a jurisdictional inquiry, in some instances

evidence may be required to determine jurisdictional facts. Holland, 221 S.W.3d at 643, citing

Miranda, 133 S.W.3d at 227; Bland Ind. School Dist. v. Blue, 34 S.W.3d 547, 555 (Tex. 2000).

When the evidence related to jurisdictional facts raises a fact issue regarding the court’s authority

over a case, the plea should not be granted. Holland, 122 S.W.3d at 643. However, if the

evidence or pleadings negate jurisdiction, the plea must be granted as the court is without

authority to take any other action. See id.

       There is no dispute that the Hernandezes failed to comply with Section 101.101(a). We

are left to determine whether the Hernandezes’ pleadings contain allegations which are sufficient

to raise a fact issue regarding the City’s actual notice of the incident. In the Original Petition,

under the heading “Jurisdiction and Venue,” the Hernandezes alleged simply that the City, “had

notice of the incident of October 17, 2006 and that [Ms. Hernandez] suffered some injury in

accordance with § 101.101(c), Tex.Civ.Prac.&Rem.Code.” Following the City’s Original

Answer, including its original plea to the jurisdiction, and the City’s amended plea, the

Hernandezes filed a response to the jurisdictional challenge and a First Amended Petition. In the

response to the City’s plea, the Hernandezes rely on the actual notice allegation in the Original

Petition, and conclude that because the plaintiff’s pleadings must be construed in favor of the

pleader, the notice requirements had been met. Immediately thereafter, the Hernandezes

amended the Original Petition, expanding on the allegation quoted above with the following

language:

             [The City] had notice of the incident of October 17, 2006 and that [Ms.
       Hernandez] suffered some injury in accordance with § 101.101(c),
       Tex.Civ.Prac.&Rem.Code. Notice to [the City] includes, but is not limited to, the


                                                  -7-
       information related to police officers at the scene of the incident by witnesses as
       well as the officers’ observations and investigations.

       Even construed liberally, there is no indication from these allegations that the City had

actual subjective awareness that its action or inaction contributed to the injury. The allegations

are also completely unsupported by evidence. The Hernandezes’ singular allegation that the City

had notice of the incident because El Paso Police Department officers were at the scene

following the incident, and that those officers collected evidence and observed the situation does

not amount to the type of notice of fault contemplated by subsections (a) of Section 101.101, and

does not meet the Hernandezes’ burden to establish the City had “actual notice” for jurisdictional

purposes. See Simons, 140 S.W.3d at 347-48. Because lack of notice is a jurisdictional defect,

the trial court properly granted the City’s plea on this ground. Accordingly, the Hernandezes’

sole issue is overruled, and the City’s issue is sustained based on the claimant’s failure to provide

pre-suit notice. Because the City’s first argument is dispositive of the case, there is no need to

address the City’s alternative basis for dismissal. The Hernandezes’ second issue is overruled.

       Having sustained the City’s issue on the question of pre-suit notice, and having overruled

the Hernandezes Issue One, on the same basis, we affirm the trial court’s judgment.



April 20, 2011
                                              DAVID WELLINGTON CHEW, Chief Justice

Before Chew, C.J., McClure, J., and Bramblett, Judge
Bramblett, Judge (Sitting by Assignment)




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