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


                                 OPINION

      This wrongful death and survival action has been brought by Ellarene Farris,

the widow of Judge James Farris. She alleges that her late husband was exposed to

asbestos in the Jefferson County courthouse and annex, and he subsequently died
from mesothelioma. One of the many defendants involved in this suit is Jefferson

County, sued in its capacities as premises owner and employer, which brought this

interlocutory appeal from the denial of its plea to the jurisdiction.

      In addition to numerous arguments first raised in the trial court, the County

raised an additional jurisdictional argument for the first time on appeal: its

governmental immunity has not been waived because it did not receive notice of

the claim against it within six months of “the day that the incident giving rise to the

claim occurred,” as required by the Texas Tort Claims Act. TEX. CIV. PRAC. &

REM. CODE § 101.101(a); see also TEX. GOV’T CODE § 311.034 (“Statutory

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

requirements in all suits against a governmental entity.”). The County contends the

notice was due within six months of Judge Farris’s last exposure to the courthouse

in December 1996.

      Mrs. Farris does not dispute that the County did not receive notice before

July 1997. Instead, she contends that she had no claim, and thus no notice was

required, until after Judge Farris’s death on November 5, 2004. She thus contends

that her written notice delivered on April 4, 2005 satisfied the statute.

      We agree with Jefferson County. The Tort Claims Act specifies that the

event triggering the notice requirement is “the incident giving rise to the claim.”

TEX. CIV. PRAC. & REM. CODE § 101.101(a); see also City of San Antonio v.


                                           2
Tenorio, 543 S.W.3d 772, 775–76 (Tex. 2018). The wrongful-death claim only

could be pursued if Judge Farris himself “would have been entitled to bring an

action for the injury” if he had lived. TEX. CIV. PRAC. & REM. CODE § 71.003(a).

As such, to the extent Jefferson County was immune from suit immediately prior

to Judge Farris’s death in 2004 from any claim based on his exposure to asbestos

prior to 1997 due to his failure to give notice of a claim, it was likewise immune

from any wrongful-death claim by Mrs. Farris. See Russell v. Ingersoll-Rand Co.,

841 S.W.2d 343, 348 (Tex. 1992). Similarly, the survival action is derivative of

Judge Farris’s rights and also is barred by immunity to the extent a claim would

have been barred if brought by him. See id. at 345.

      Comparing this case to University of Texas Southwestern Medical Center at

Dallas v. Loutzenhiser, 140 S.W.3d 351 (Tex. 2004), Mrs. Farris suggests that no

claim existed prior to her husband’s death. In Loutzenhiser, the Supreme Court of

Texas held that with respect to an infant’s personal-injury claim for negligent

prenatal medical treatment, the negligent treatment of the child in utero was not an

“incident giving rise to the claim” sufficient to trigger the six-month deadline to

give notice to the defendant governmental unit. 140 S.W.3d at 356–57. The result

in Loutzenhiser depended on the “longstanding common law rule” that the rights of

a fetus to pursue his own cause of action are “contingent on live birth.” Id. at 356.

As such, the live birth of the child claimant in Loutzenhiser was itself an “incident


                                         3
giving rise to his claim, and one essential to the existence of the claim,” such that

the six-month notice period began not with the negligent prentatal treatment, but

upon the child’s birth. Id. at 357.

      Mrs. Farris contends that the death of Judge Farris was an incident necessary

to her wrongful-death claim, just as the birth of the child was an incident necessary

to the child’s negligence claim in Loutzenhiser. This would be a persuasive

argument if Mrs. Farris had a viable claim upon Judge Farris’s death, but not

before that tragic event. However, the logic of Loutzenhiser does not compel a

result favorable to Mrs. Farris because her claims after Judge Farris’s death are

derivative of his claims before his death, and her claims are subject to the defenses

that would have been applicable before his death. Thus Mrs. Farris is correct that

Judge Farris’s death was an incident necessary to the existence of her wrongful-

death claim, if she had one. Cf. Loutzenhizer, 140 S.W.3d at 356. But because

Judge Farris’s own personal-injury claim against Jefferson County was barred by

his failure to give the notice required by the Tort Claims Act, TEX. CIV. PRAC. &

REM. CODE § 101.101(a), Mrs. Farris’s wrongful-death claim, which was

derivative of Judge Farris’s claim, was likewise barred. See id. § 71.003(a).

      Mrs. Farris’s response does not suggest any substantive repleading or

potential fact dispute that might alter the foregoing analysis. We therefore render




                                          4
judgment dismissing her claims against Jefferson County. See id. § 101.101(a);

TEX. GOV’T CODE § 311.034.



                                            Michael Massengale
                                            Justice

Panel consists of Justices Jennings, Massengale, and Caughey.

Justice Jennings, dissenting.




                                        5
