1 In The 

### Court of Appeals Ninth District of Texas at Beaumont

_________________

NO. 09-17-00161-CV



### _________________ TEXAS DEPARTMENT OF CRIMI NAL 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 clai m was not provided, and TDCJ had no actual notice, the trial court erred in denying TDCJ ’s plea. Accordingly, we reverse the trial2 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 incarcerat ed at the Gib Lewis Unit within TDCJ, filed suit against TDCJ after he was seri ously injured in an accident involving a commercial woodworking saw in the furnit ure factory within the unit. Cisneros alleges that as he approached the saw, it was turned off and the power was disconnected. Another offender assisting Cisn eros 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 alle ges that the trial court erred in denying TDCJ’s plea to the jurisdic tion 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, TD CJ contends Cisneros failed to plead a cause of action for which sovereign immunity is waiv ed under the Texas Tort Claims Act (“TTCA”). TDCJ asserts that the absen ce of timely notice is an incurable jurisdictional defect. See Tex. Gov’t Code Ann. § 3 11.034 (West 2013) (“Statutory prerequisites to a suit, including the provision of notice, are jurisdictional requirements in all suits agai nst a governmental entity.”).3 Standard of Review “A plea to the jurisdiction is a dilatory plea that seeks dism issal 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 pendi ng claim, a trial court lacks subject matter jurisdiction as to that claim.” Univ. of Tex. Health Sc i. Ctr. at Houston v. McQueen , 431 S.W.3d 750, 756 (T ex. App.—Houston [14 th Dist.] 2014, no pet.). Because the existence of subject matter juri sdiction 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 defenda nt 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 f acts. 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 evid ence creates a fact question regarding the jurisdictional issue, then the plea to the jurisdiction must be4 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 jurisd iction as a matter of law . Id . at 228. In ruling on a plea to the juri sdiction, 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 j udgment 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 [14t h Dist.] 2014, pet. denied). Under this standard, we take as true all ev idence 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 w ith evidence that the trial court lacks subject matter jurisdiction, we si mply require the plaintiff[ ], when the facts underlying the merits and subject matte r jurisdiction are intertwined, to show that there is a disputed material f act 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 th e movant presents conclusive proof that the trial court lacks subject matter jurisd iction, then the nonmovant must present5 evidence sufficient to raise a material issue of fact regarding jurisdiction, or the plea will be sustained). Thus, because the tr ial court ruled on TDCJ’s plea to the jurisdiction, we are compelled to review su ch ruling from the record before the trial court at the time of its ruling. The Texas Tort Claim Ac t’s Notice Requirements Absent a waiver, governmental entities, like TDCJ, are generally immune from suits for damages. See Univ. of Tex. Sw. Med. Ct r. at Dallas v. Estate of Arancibia , 324 S.W.3d 544, 546 (Tex. 2010). The Texas Tort Claims Act waives governmental immunity for negligen t 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 notice6 requirements in the Texas Tort Claims Act deprives the trial c ourt of subject matter jurisdiction. Carbajal , 324 S.W.3d at 537–38. A. Formal Notice Regarding a claim against a governmental unit base d on a waiver of immunity under the Texas Tort Claims Act, the govern mental unit is entitled to written notice of a claim against it not later than six mont hs after the day that the incident giving rise to the claim occurred. Tex. Civ. Pra c. & Rem. Code Ann. § 101.101(a). “The notice must reasonably describe: (1) the dama ge 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. C ode Ann. § 101.101(c). The Supreme Court of Texas analyzed the noti ce provisions in the Texas Tort Claims Act in Cathey v. Booth and held that for a government al unit to have such actual knowledge, it requires the govern mental 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)7 knowledge of the identity of the parties i nvolved. 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 fo r 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 “include s subjective awareness of its fault, as ultimately alleged by the claimant, in pr oducing or contributing to the claimed injury.” Id. Subjective awareness is required beca use if a governmental entity is not aware of its fault, it does not have the sa me 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 implie s 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 file d and returned on October 13, 2015, well outside of the statutory time period. Cisn eros argues though, that TDCJ had actual notice as provided by section 101.101(c).8 Texas Department of Criminal Justice v. Simons is analogous to the case before us. 140 S.W.3d at 339–43. In that cas e, an inmate was se verely injured while working for the prison. See id. at 339. The incident involve d 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 auge r 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 in mate 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 act ual 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 th at a governmental unit has actual notice of a9 claim if it could or even should have lear ned 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 mi ght 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 “t hat 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 pr ison’s employees and because TDCJ investigated the incident a nd produced an official re port, 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 auth ority. An Administrative Incident Review was conducted and Serious In cident 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 training10 and was assigned to the maintenan ce department of the Furniture factory to perform all maintenan ce 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 th at resulted in an unsafe act by turning the machine on and failing to use safe guarded 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 wo rk on it. (Emphasis added). The investigation reports do not show TDCJ’s fault. The fact that TDCJ investigated Cisneros’s accident does not constitute s ubjective 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 indi cated Cisneros, not TDCJ, was responsible for the accident. Cisneros further argues th at this court should infer from the trial court’s order denying TDCJ’s Plea to the Juri sdiction that there is a need for further discovery to resolve a fact issue rega rding TDCJ’s subjective awareness. In conjunction with his response to TDCJ’s Pl ea 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 di scovery 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 otherwis e obtaining a continuance from the trial court to conduct further discovery. See Tex. R. App. P. 33.1(a)(2).11 Under these circumstances, we determin e that TDCJ conclusively proved, as a matter of law, that the trial court lack ed subject matter juri sdiction because TDCJ was not shown to have subjective awareness of its fault, as alleged by Cisneros, in producing or contributing to Cisneros’s in juries, or otherwise have sufficient notice pursuant to the To rt 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) (“Ev idence 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 rega rding 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 jurisd iction, 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 a ppeal, as it would afford TDCJ no greater relief. Conclusion We reverse the trial cour t’s order denying TDCJ’s plea to the jurisdiction and render judgment dismissing Cisneros’s clai ms against TDCJ for lack of subject matter jurisdiction.12 REVERSED AND RENDERED.

_______ _________________________ CHARLES KREGER Justice Submitted on November 22, 2017 Opinion Delivered March 1, 2018 Before McKeithen, C.J., Kr eger, and Horton, JJ.