                                MEMORANDUM OPINION
                                       No. 04-10-00560-CV

                         ROMA INDEPENDENT SCHOOL DISTRICT,
                                      Appellant

                                                  v.

                             Roel GONZALEZ and Thelma Gonzalez,
                                        Appellees

                     From the 229th Judicial District Court, Starr County, Texas
                                    Trial Court No. DC-09-494
                         Honorable Alex William Gabert, Judge Presiding

Opinion by:      Catherine Stone, Chief Justice

Sitting:         Catherine Stone, Chief Justice
                 Sandee Bryan Marion, Justice
                 Rebecca Simmons, Justice

Delivered and Filed: December 2, 2010

REVERSED AND RENDERED

           Roel and Thelma Gonzalez (“the Gonzalezes”) sued Roma Independent School District

(“RISD”) to recover for the injuries they sustained during an automobile collision allegedly

caused by a RISD school bus. The trial court denied RISD’s plea to the jurisdiction and this

appeal followed. RISD challenges the denial of its plea to the jurisdiction on the ground that the

Gonzalezes failed to provide the school district with notice of their claims. We reverse the trial
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court’s order denying RISD’s plea to the jurisdiction and render judgment dismissing the

Gonzalezes’ claims against RISD for want of jurisdiction.

                                              BACKGROUND

        Steven Johnson was employed as a truck driver for T&S Trucking of Jacksonville

Florida, Inc (“T&S”). Johnson was traveling westbound on U.S. Highway 83 in Starr County,

Texas when he was involved in a collision with the Gonzalezes’ vehicle. The Gonzalezes, who

were also traveling westbound on U.S. Highway 83, claim RISD is, at least in part, responsible

for causing the accident between their vehicle and Johnson’s tractor trailer. According to the

Gonzalezes, their collision occurred because a westbound RISD school bus failed “to pull onto

the shoulder of U.S. Highway 83” when it stopped to pick up children. The Gonzalezes claim

that when the school bus stopped on the highway, it caused Johnson to abruptly change lanes.

When Johnson changed lanes, he pulled his tractor trailer in front of their vehicle and

immediately applied his brakes to stop for the RISD school bus. The Gonzalezes could not stop

in time and rear-ended Johnson’s tractor trailer. 1

        The Gonzalezes filed suit against T&S, Johnson, and RISD to recover for the injuries

they sustained during their collision with Johnson’s tractor trailer. They claimed RISD is liable

because its school bus driver failed to exercise ordinary care by failing to: (1) pull off the

roadway in order to stop; (2) timely activate the bus’s “amber flashing lights” to indicate that the

bus was about to stop for children; and (3) pull off the roadway as much as practicable to make a

stop.   RISD denied the Gonzalezes’ allegations and filed special exceptions, claiming the

Gonzalezes’ petition failed to show they gave the school district written notice of their claims

within six months of the incident as required by the Texas Tort Claims Act. See TEX. CIV. PRAC.


1
  The RISD school bus was unaffected by the collision between Johnson and the Gonzalezes and continued on its
route following the accident. Roel Gonzalez was cited for failing to control his speed.

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& REM. CODE ANN. § 101.101(a) (West 2005).              The trial court sustained RISD’s special

exceptions and ordered the Gonzalezes to amend their pleadings. The Gonzalezes subsequently

filed an amended petition, alleging written notice to RISD was not required because the school

district had actual notice knowledge of the incident giving rise to their claims.

       RISD responded by filing a plea to the jurisdiction, claiming the Gonzalezes are barred

from bringing suit against the governmental entity because they failed to give it notice of their

claims within six months of the date of the incident as required by the Texas Tort Claims Act.

RISD’s plea further states that the Gonzalezes were not excused from complying with this notice

requirement because the school district had no actual notice of the Gonzalezes’ claims. In

support of its plea to the jurisdiction, RISD attached an affidavit from Jesus Guerra, the

Superintendant for RISD, stating RISD: (1) “did not receive written notice of Plaintiffs’ claims

against [it] prior to Plaintiffs’ filing of suit on November 4, 2009”; (2) “had no other knowledge

of such claims prior to the filing of this lawsuit”; and (3) “had no indication or subjective

awareness that its fault produced or contributed to the accident or the claimed damages or

injuries of Plaintiffs.” The Gonzalezes did not file a response to RISD’s plea to the jurisdiction.

Following a hearing, the trial court denied RISD’s jurisdictional challenge and this interlocutory

appeal followed.

                                      STANDARD OF REVIEW

       We review the grant or denial of a plea to the jurisdiction de novo. Tex. Dep’t of Parks &

Wildlife v. Miranda, 133 S.W.3d 217, 227 (Tex. 2004). The plaintiff bears the burden to plead

facts affirmatively demonstrating the trial court’s jurisdiction. See State v. Holland, 221 S.W.3d

639, 642–43 (Tex. 2007). If a plea to the jurisdiction challenges the existence of jurisdictional

facts, we consider relevant evidence submitted by the parties to resolve the jurisdictional issues.



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Miranda, 133 S.W.3d at 227. When evidence is submitted to support the plea, we accept as true

“all evidence favorable to the non-movant” and indulge every logical inference and resolve all

doubts in favor of the non-movant. Id. at 228. If the evidence submitted raises a question of fact

regarding jurisdiction, “then the trial court cannot grant the plea to the jurisdiction” and the

ultimate fact-finder will resolve the fact issue. Id. at 227–28.

                                              NOTICE

       Absent a waiver, governmental immunity protects political subdivisions of the State,

including counties, cities, and school districts, from lawsuits for damages. Harris County Hosp.

Dist. v. Tomball Reg’l Hosp., 283 S.W.3d 838, 842 (Tex. 2009); Wichita Falls State Hosp. v.

Taylor, 106 S.W.3d 692, 694 n. 3 (Tex. 2003). The Texas Tort Claims Act waives immunity

from suit “to the extent of liability created by [the Act].” TEX. CIV. PRAC. & REM. CODE ANN.

§ 101.025(a) (West 2005). To take advantage of this waiver, the plaintiff must notify the

governmental unit of a claim within six months.          Id. § 101.101(a).   The notice “must be

submitted in writing,” Univ. of Tex. Health Sci. Ctr. at San Antonio v. Stevens, No. 04-09-

00579-CV, 2010 WL 3406146, at *3 (Tex. App.—San Antonio Aug. 31, 2010, no. pet.), and

reasonably describe the injury, the time and place of the incident, and the incident itself. Id.

§ 101.101(a). This formality, however, is not required “if the governmental unit has actual

notice that death has occurred [or] that the claimant has received some injury.” Id. § 101.101(c).

“Statutory prerequisites to a suit, including the provision of notice, are jurisdictional

requirements in all suits against a governmental entity.” TEX. GOV’T CODE ANN. § 311.034

(West 2005).




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                                             DISCUSSION

          On appeal, RISD argues the trial court erred in denying its plea to the jurisdiction because

RISD conclusively established it did not have notice (formal or actual) of the Gonzalezes’

claims. We agree.

          The incident giving rise to the Gonzalezes’ claims occurred on December 18, 2008.

Nothing in the record demonstrates that the Gonzalezes ever provided RISD with formal written

notice of their claims within six months of the date of the accident. Consequently, the trial court

was not free to conclude that RISD did receive formal written notice of the incident or the

Gonzalezes’ injuries as required by section 101.101. See Univ. of Tex. Health Sci. Ctr. at San

Antonio, 2010 WL 3406146, at *3.

          Actual notice to a governmental unit requires knowledge of: (1) a death or injury; (2) the

governmental unit’s alleged fault producing or contributing to the death or injury; and (3) the

identity of the parties involved. Cathey v. Booth, 900 S.W.2d 339, 341 (Tex. 1995) (per curiam)

(noting also that 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”). With regard to the second requirement for actual

notice, the Supreme Court has explained “that a governmental unit [must] have knowledge that

amounts to the same notice to which it is entitled by section 101.101(a). That includes subjective

awareness of its fault, as ultimately alleged by the claimant, in producing or contributing to the

claimed injury.” Tex. Dep’t of Criminal Justice v. Simons, 140 S.W.3d 338, 348 (Tex. 2004); see

Univ. of Tex. Health Sci. Ctr. at San Antonio, 2010 WL 3406146, at *3. The Court further

stated:

          It is not enough that a governmental unit should have investigated an incident as a
          prudent person would have, or that it did investigate, perhaps as part of routine

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       safety procedures, or that it should have known from the investigation it
       conducted that it might have been at fault. If a governmental unit is not
       subjectively aware of its fault, it does not have the same incentive to gather
       information that the statute is designed to provide, even when it would not be
       unreasonable to believe that the governmental unit was at fault.

Tex. Dep’t of Criminal Justice, 140 S.W.3d at 347-48. “Actual notice is a fact question when the

evidence is disputed; but in many instances actual notice is determined as a matter of law.”

Univ. of Tex. Med. Branch at Galveston v. Brisco, No. 01-09-00064-CV, 2009 WL 3152192, at

*4 (Tex. App.—Houston [1st Dist.] Oct. 1, 2009, no pet.) (mem. op.).

       The Gonzalezes’ pleadings suggest that RISD had actual notice because its school bus

was present at the scene of the accident. However, “[m]ere notice that an incident has occurred

is not enough to establish actual notice for purposes of the Act.” City of Pharr v. Aguillon, No.

13-09-00011-CV, 2010 WL 1138449, at * 3 (Tex. App.—Corpus Christi Mar. 25, 2010, no pet.)

(mem. op.). The only evidence in the record directly addressing actual notice is Superintendent

Guerra’s affidavit, which shows RISD was subjectively unaware of its alleged role in the

Gonzalezes’ accident. The record before us simply does not demonstrate RISD had actual notice

as contemplated by section 101.101; accordingly, we sustain RISD’s sole issue on appeal. See

Univ. of Tex. Med. Branch at Galveston, 2009 WL 3152192, at *4-5 (reversing trial court’s order

denying a plea to the jurisdiction and rendering a judgment of dismissal where appellee “did not

allege facts sufficient to show [appellant’s] knowledge of a personal injury and the people

involved or its subjective awareness of its alleged role in contributing to the injury”).




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                                        CONCLUSION

       We reverse the trial court’s order denying RISD’s plea to the jurisdiction and render

judgment dismissing the Gonzalezes’ claims against RISD for want of jurisdiction.



                                               Catherine Stone, Chief Justice




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