1 

In The 

Court of Appeals 

Ninth District of Texas at Beaumont 

_________________ 

NO. 09-17-00161-CV 

_________________ 

TEXAS DEPARTMENT OF CRIMINAL JUSTICE, Appellant 

V. 

NEFTALI CISNEROS, Appellee 

________________________________________________________________________ 

On Appeal from the 88th District Court 

Tyler County, Texas 

Trial Cause No. 23,261 

________________________________________________________________________ 

MEMORANDUM OPINION 

This interlocutory appeal arises from the trial court’s denial of the Texas 

Department of Criminal Justice’s (“TDCJ”) plea to the jurisdiction. See Tex. Civ. 

Prac. & Rem. Code Ann. § 51.014(a)(8) (West Supp. 2017) (allowing an appeal from 

an interlocutory order denying a plea to the jurisdiction by a governmental unit). 

Because timely formal notice of the claim was not provided, and TDCJ had no actual 

notice, the trial court erred in denying TDCJ’s plea. Accordingly, we reverse the trial 
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court’s order denying TDCJ’s plea to the jurisdiction and render judgment 

dismissing appellee Neftali Cisneros’s claims for lack of subject-matter jurisdiction. 

Background 

 Neftali Cisneros, an offender incarcerated at the Gib Lewis Unit within TDCJ, 

filed suit against TDCJ after he was seriously injured in an accident involving a 

commercial woodworking saw in the furniture factory within the unit. Cisneros 

alleges that as he approached the saw, it was turned off and the power was 

disconnected. Another offender assisting Cisneros turned on the saw while Cisneros 

used an air hose to clean it. Cisneros came into contact with the saw blades, severing 

his right hand and fingers. Cisneros sued TDCJ for negligence. 

In two issues on appeal, TDCJ first alleges that the trial court erred in denying 

TDCJ’s plea to the jurisdiction because Cisneros did not give TDCJ timely formal 

notice of his claim and TDCJ did not have actual notice of Cisneros’s claim before 

suit was filed, and second, TDCJ contends Cisneros failed to plead a cause of action 

for which sovereign immunity is waived under the Texas Tort Claims Act 

(“TTCA”). TDCJ asserts that the absence of timely notice is an incurable 

jurisdictional defect. See Tex. Gov’t Code Ann. § 311.034 (West 2013) (“Statutory 

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

requirements in all suits against a governmental entity.”). 
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Standard of Review 

“A plea to the jurisdiction is a dilatory plea that seeks dismissal of a case for 

lack of subject matter jurisdiction.” Harris Cty. v. Sykes, 136 S.W.3d 635, 638 (Tex. 

2004); see City of Dallas v. Carbajal, 324 S.W.3d 537, 538 (Tex. 2010) (per curiam). 

“Subject matter jurisdiction is essential to the authority of a court to decide a case.” 

Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 443 (Tex. 1993). “If a 

governmental unit has immunity from a pending claim, a trial court lacks subject 

matter jurisdiction as to that claim.” Univ. of Tex. Health Sci. Ctr. at Houston v. 

McQueen, 431 S.W.3d 750, 756 (Tex. App.—Houston [14th Dist.] 2014, no pet.). 

Because the existence of subject matter jurisdiction is a question of law, we review 

a trial court's ruling on a plea to the jurisdiction de novo. See Houston Belt & 

Terminal Ry. Co. v. City of Houston, 487 S.W.3d 154, 160 (Tex. 2016). 

 In a plea to the jurisdiction, a defendant may challenge either the plaintiff’s 

pleadings or the existence of jurisdictional facts. Tex. Dep’t of Parks and Wildlife v. 

Miranda, 133 S.W.3d 217, 226 (Tex. 2004). In this case, TDCJ challenged the 

existence of jurisdictional facts. Therefore, this court considers relevant evidence 

submitted by the parties when necessary to resolve the jurisdictional issues raised, 

as the trial court is required to do. See id. at 227. If the evidence creates a fact 

question regarding the jurisdictional issue, then the plea to the jurisdiction must be 
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denied, and the fact issue will be resolved by the fact finder. Id. at 227–28. But, if 

the relevant evidence is undisputed or fails to raise a fact question on the 

jurisdictional issue, then the court rules on the plea to the jurisdiction as a matter of 

law. Id. at 228. In ruling on a plea to the jurisdiction, a court does not consider the 

merits of the parties’ claims. Id. at 226–28; Cty. of Cameron v. Brown, 80 S.W.3d 

549, 555 (Tex. 2002). 

 The standard of review for a plea to the jurisdiction based on evidence 

“generally mirrors that of a summary judgment under Texas Rule of Civil Procedure 

166a(c).” Miranda, 133 S.W.3d at 228; see also Thornton v. Ne. Harris Cty. MUD 

1, 447 S.W.3d 23, 32 (Tex. App.—Houston [14th Dist.] 2014, pet. denied). Under 

this standard, we take as true all evidence favoring the nonmovant and draw all 

reasonable inferences and resolve any doubts in the nonmovant's favor. Miranda, 

133 S.W.3d at 228. “[A]fter the state asserts and supports with evidence that the trial 

court lacks subject matter jurisdiction, we simply require the plaintiff[ ], when the 

facts underlying the merits and subject matter jurisdiction are intertwined, to show 

that there is a disputed material fact regarding the jurisdictional issue.” Id.; see also 

City of Galveston v. Murphy, 533 S.W.3d 355, 359 (Tex. App.—Houston [14th 

Dist.] 2015, pet. denied) (stating that if the movant presents conclusive proof that 

the trial court lacks subject matter jurisdiction, then the nonmovant must present 
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evidence sufficient to raise a material issue of fact regarding jurisdiction, or the plea 

will be sustained). Thus, because the trial court ruled on TDCJ’s plea to the 

jurisdiction, we are compelled to review such ruling from the record before the trial 

court at the time of its ruling. 

The Texas Tort Claim Act’s Notice Requirements 

Absent a waiver, governmental entities, like TDCJ, are generally immune 

from suits for damages. See Univ. of Tex. Sw. Med. Ctr. at Dallas v. Estate of 

Arancibia, 324 S.W.3d 544, 546 (Tex. 2010). The Texas Tort Claims Act waives 

governmental immunity for negligent acts in certain circumstances. See Tex. Civ. 

Prac. & Rem. Code Ann. § 101.021 (West 2011). To take advantage of this waiver 

and overcome the shield of governmental immunity, a claimant must notify a 

governmental unit of the negligent act not later than six months after the incident. 

Tex. Civ. Prac. & Rem. Code Ann. § 101.101(a) (West 2011). There are two methods 

of accomplishing notice: formal written notice and actual notice. See Arancibia, 324 

S.W.3d at 548. 

The purpose of the notice requirement is to ensure prompt reporting of claims 

to enable governmental units to gather information necessary to guard against 

unfounded claims, settle claims, and prepare for trial. Tex. Dep’t Crim. Justice v. 

Simons, 140 S.W.3d 338, 344 (Tex. 2004). The failure to comply with the notice 
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requirements in the Texas Tort Claims Act deprives the trial court of subject matter 

jurisdiction. Carbajal, 324 S.W.3d at 537–38. 

A. Formal Notice 

Regarding a claim against a governmental unit based on a waiver of immunity 

under the Texas Tort Claims Act, the governmental unit is entitled to written 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 Ann. § 101.101(a). “The 

notice must reasonably describe: (1) the damage or injury claimed; (2) the time and 

place of the incident; and (3) the incident.” Id. Formal notice must be submitted in 

writing. Cathey v. Booth, 900 S.W.2d 339, 340 (Tex. 1995) (per curiam). 

 B. Actual Notice 

The Texas Tort Claims Act provides an exception to the written notice 

requirement when the governmental unit has “actual notice that . . . the claimant has 

received some injury[.]” See Tex. Civ. Prac. & Rem. Code Ann. § 101.101(c). The 

Supreme Court of Texas analyzed the notice provisions in the Texas Tort Claims 

Act in Cathey v. Booth and held that for a governmental unit to have such actual 

knowledge, it requires the governmental unit’s: (1) knowledge of a death, injury, or 

property damage; (2) subjective awareness of the governmental unit’s alleged fault 

producing or contributing to the death, injury, or property damage; and (3) 
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knowledge of the identity of the parties involved. 900 S.W.2d at 341. The high court 

later clarified the meaning of the second requirement by stating that “[w]hat we 

intended in Cathey by the second requirement for actual notice was that a 

governmental unit have knowledge that amounts to the same notice to which it is 

entitled by section 101.101(a).” Simons, 140 S.W.3d at 347. In Simons, the court 

explained that this requirement “includes subjective awareness of its fault, as 

ultimately alleged by the claimant, in producing or contributing to the claimed 

injury.” Id. Subjective awareness is required because if a governmental entity is not 

aware of its fault, it does not have the same incentive to gather the information the 

statute is designed to provide. Id. at 348. “Fault, as it pertains to actual notice, is not 

synonymous with liability; rather, it implies responsibility for the injury claimed.” 

Arancibia, 324 S.W.3d at 550. 

Analysis 

 It is undisputed that Cisneros did not give TDCJ formal notice of his claim as 

provided by section 101.101(a) within six months from the date of the accident. See

Tex. Civ. Prac. & Rem. Code Ann. § 101.101(a). Cisneros pleaded that his formal 

written grievance at the prison was filed and returned on October 13, 2015, well 

outside of the statutory time period. Cisneros argues though, that TDCJ had actual 

notice as provided by section 101.101(c). 
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Texas Department of Criminal Justice v. Simons is analogous to the case 

before us. 140 S.W.3d at 339–43. In that case, an inmate was severely injured while 

working for the prison. See id. at 339. The incident involved the operation of a tractor 

and auger by a prison work supervisor. Id. The auger became stuck in the ground, 

and the inmate attempted to back the auger out with a pipe wrench while the power 

take-off was disengaged. Id. Although it was not clear exactly how it happened or 

whether the work supervisor notified the inmate to stand clear, the power take-off 

was re-engaged while the inmate was in the vicinity. Id. This caused the pipe wrench 

to swing around and strike the inmate in the head. Id. Just as in the present case, 

TDCJ conducted an investigation and took statements from the individuals involved 

and witnesses. See id. The work supervisor prepared an “offense report” which cited 

the inmate for violating prison rules. Id. at 340. An additional report was prepared 

by the prison’s safety officer which again noted the inmate’s violation of safety 

policy and procedures. Id. 

 The question of whether TDCJ had actual notice was the crucial issue in 

Simons. Id. at 343. In resolving disagreement among the various courts of appeals 

regarding the holding in Cathey v. Booth, the Texas Supreme Court explained that 

case “cannot fairly be read to suggest that a governmental unit has actual notice of a 
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claim if it could or even should have learned of its possible fault by investigating the 

incident.” Id. at 347. The Court went on to reason 

[i]t is not enough that a governmental unit . . . did investigate, perhaps 

as part of routine safety procedures, or that it should have known from 

the investigation it conducted that it might be 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. 

Id. at 374–48. The Court ultimately held “that actual notice under section 101.101(c) 

requires that a governmental unit have knowledge of the information it is entitled to 

be given under section 101.101(a) and a subjective awareness that its fault produced 

or contributed to the claimed injury.” Id. at 348. 

 Cisneros contends that because the injury occurred on the government unit’s 

property and was responded to by the prison’s employees and because TDCJ 

investigated the incident and produced an official report, actual notice can be 

imputed to a governmental unit through an agent or representative who has a duty to 

investigate and report to a person of authority. An Administrative Incident Review 

was conducted and Serious Incident Report was issued by the TDCJ Emergency 

Action Center. 

An investigation into the incident by Furniture Factory Supervisor John 

Risinger and Safety Officer Alan Gordon revealed the following. 

Offender Cisneros was assigned to the Furniture Factory on March 13, 

2004. On this date, Offender Cisneros was given initial safety training 
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and was assigned to the maintenance department of the Furniture 

factory to perform all maintenance work concerning the upkeep and 

repair of all machinery located in the Furniture Factory. Further 

investigation revealed Offender Cisneros acted irresponsibly and 

without authorization from the mill shop supervisor to work on the 

tenoner [saw] machine that resulted in an unsafe act by turning the 

machine on and failing to use safeguarded methods resulting in his 

injuries. Offender Cisneros received the appropriate disciplinary case 

for his negligent behavior by failing to get a supervisor to lock out the 

machine before he began work on it. (Emphasis added). 

The investigation reports do not show TDCJ’s fault. The fact that TDCJ investigated 

Cisneros’s accident does not constitute subjective awareness on the part of TDCJ 

that its fault produced or contributed to Cisneros’s injury. See id. at 347–48. Indeed, 

the results of TDCJ’s investigation indicated Cisneros, not TDCJ, was responsible 

for the accident. Cisneros further argues that this court should infer from the trial 

court’s order denying TDCJ’s Plea to the Jurisdiction that there is a need for further 

discovery to resolve a fact issue regarding TDCJ’s subjective awareness. In 

conjunction with his response to TDCJ’s Plea to the Jurisdiction, Cisneros filed a 

Motion to Compel discovery and argues that the trial court’s denial of the plea 

implies the trial court’s approval of his Motion to Compel. However, no order of the 

trial court granting his Motion to Compel discovery is included in the record before 

us. Cisneros was charged with obtaining a ruling on his Motion to compel, objecting 

if the court refused to rule, or otherwise obtaining a continuance from the trial court 

to conduct further discovery. See Tex. R. App. P. 33.1(a)(2). 
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 Under these circumstances, we determine that TDCJ conclusively proved, as 

a matter of law, that the trial court lacked subject matter jurisdiction because TDCJ 

was not shown to have subjective awareness of its fault, as alleged by Cisneros, in 

producing or contributing to Cisneros’s injuries, or otherwise have sufficient notice 

pursuant to the Tort Claims Act. See Tex. Civ. Prac. & Rem. Code Ann. § 101.101; 

Tex. Gov’t Code Ann. 311.034; Arancibia, 324 S.W.3d at 548–49; City of Keller v. 

Wilson, 168 S.W.3d 802, 816 (Tex. 2005) (“Evidence is conclusive only if 

reasonable people could not differ in their conclusions[.]”). Cisneros did not present 

evidence sufficient to raise a material issue of fact regarding jurisdiction after TDCJ 

proved that the trial court lacked jurisdiction; therefore, we hold that the trial court 

erred in denying TDCJ’s plea to the jurisdiction, and we render judgment dismissing 

Cisneros’s claims. See Miranda, 133 S.W.3d at 228; see also Murphy, 533 S.W.3d 

at 359. 

We do not reach the second issue on appeal, as it would afford TDCJ no 

greater relief. 

Conclusion 

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

render judgment dismissing Cisneros’s claims against TDCJ for lack of subject 

matter jurisdiction. 
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REVERSED AND RENDERED. 

 

 

 ________________________________ 

 CHARLES KREGER 

 Justice 

 

Submitted on November 22, 2017 

Opinion Delivered March 1, 2018 

Before McKeithen, C.J., Kreger, and Horton, JJ.