Opinion issued December 28, 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

O P I N I O N

*

After her husband died from mesothelioma, Mrs. Ellarene Farris sued 

Jefferson County and 39 other defendants on negligence theories related to her 

 

* We withdraw our opinions and judgment dated August 31, 2018 and issue 

this substitute opinion. 
2

husband’s lifetime exposure to asbestos. Jefferson County brings this interlocutory 

appeal from the multidistrict litigation court’s denial of its plea to the jurisdiction. 

On appeal, it argues that the court erred because Mrs. Farris failed to plead a cause 

of action under the Texas Tort Claims Act, was barred by the exclusive-remedy 

provision of the Texas Workers’ Compensation Act, failed to exhaust her 

administrative remedies under the Texas Workers’ Compensation Act, and failed 

to present her claim to the commissioners court before filing suit under section 

89.004 of the Local Government Code. In addition, the County argues that the trial 

court erred by failing to dismiss the claims for exemplary damages, misuse of 

personal property, failure to create an asbestos-safety policy, and negligent 

implementation of policy. 

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 incident giving rise to the 

claim occurred, as required by the Tort Claims Act. Both Jefferson County and 

Mrs. Farris agree that the trial court lacks jurisdiction over any claim for 

exemplary damages from the County. 

We reverse and render judgment dismissing the claim for exemplary 

damages, and we otherwise affirm the order of the trial court. 
3

Background

From 1969 to 1996, James Farris was an elected judge in Jefferson County 

with courtrooms in the Jefferson County Courthouse and Jefferson County 

Courthouse annex. From the late 1970s through the early 1980s, there were 

renovation and restoration projects in these areas that produced asbestos-containing 

dust. In addition, some of the materials that the County specified for those projects 

contained asbestos. Between 1989 and 1991, the County initiated an asbestos 

abatement project in the courthouse and courthouse annex. Judge Farris retired in 

1996, and eight years later, doctors discovered cancer in his lungs. Judge Farris 

died less than two weeks after his cancer diagnosis. A pathology report later 

concluded that the biopsy findings were “most consistent with a malignant 

mesothelioma.”

Judge Farris’s widow, Ellarene Farris, filed suit against 39 asbestos-related 

companies alleging that her husband had been exposed to asbestos at the 

courthouse, particularly during renovations in the 1970s and 1980s. In 2006, she 

added Jefferson County as a defendant. The case was transferred to the 

Multidistrict Litigation Docket (MDL).

Eight years later, the County filed a plea to the jurisdiction arguing that Mrs. 

Farris had failed to plead or adduce any factual basis to justify a waiver of 

governmental immunity based on premises liability. The County argued that Mrs. 
4

Farris alleged a claim for negligence but did not mention the gross-negligence 

standard that is the duty owed by an owner to a licensee. The County also argued 

that its immunity was not waived as a matter of law for claims arising from 

conditions that predated the 1970 enactment of the Texas Tort Claims Act. Before 

the court ruled on the plea to the jurisdiction, Mrs. Farris filed her fourth amended 

petition, specifically pleading that the County’s immunity was waived based on

premises liability because the County owed Judge Farris the duty that a private 

person owes to a licensee on private property and failed to satisfy that duty. In 

October 2016, the trial court partially granted the plea to the jurisdiction as to any 

claims based on acts or omissions that occurred before January 1, 1970. The court 

denied the remainder of the plea. The County did not appeal the trial court’s ruling.

See TEX. R. APP. P. 26.1(b).

Four months later, Jefferson County filed an amended plea to the jurisdiction 

and an amended motion for traditional and no-evidence summary judgment. The

County argued for the first time that the Local Government Code required Mrs. 

Farris to present her claim to the Commissioners Court before filing suit, see TEX.

LOC. GOV’T CODE § 89.004 (“Presentation of Claim”), and because statutory 

prerequisites to suit are jurisdictional under the Government Code, the court lacked 

jurisdiction. See TEX. GOV’T CODE § 311.034 (“Waiver of Sovereign Immunity”). 

The County also argued that the exclusive-remedy provision of the Workers’ 
5

Compensation Act was jurisdictional based on the rule that failure to exhaust 

administrative remedies deprives a court of jurisdiction. The County also argued 

that claims for punitive damages must be dismissed because the Texas Tort Claims 

Act did not waive immunity for punitive damages.

In addition, the County again argued that Mrs. Farris had failed to plead a

premises liability claim that would fall within the Texas Tort Claims Act. See TEX.

CIV. PRAC. & REM. CODE § 101.021(2). Finally, the County filed a supplement to 

its amended plea to the jurisdiction, attaching additional evidence that was relevant 

primarily to the workers’ compensation argument.

The trial court denied the request to reconsider its denial of Jefferson 

County’s prior plea to the jurisdiction. At the hearing, the trial court explained that 

that the Tort Claims Act did not apply to a claim based on an act or omission that 

occurred before January 1, 1970, but that it had jurisdiction over premises liability 

claims for acts or omissions occurring after January 1, 1970. See TEX. CIV. PRAC.

& REM. CODE § 101.061 (“Tort Committed Before January 1, 1970”); id.

§ 101.021 (“Governmental Liability”). The court also denied the plea to the 

jurisdiction based on the exclusive-remedy provision of workers’ compensation,

the presentation requirement found in section 89.004 of the Local Government 
6

Code, and the assertion that there was no evidence to support a premises liability 

claim.1

Jefferson County filed a timely notice of interlocutory appeal.

Analysis

The County’s interlocutory appeal is based on jurisdictional challenges. For 

the first time on appeal, the County contends that its governmental immunity has 

not been waived and the trial court lacks subject-matter jurisdiction over the claim 

because the County 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 (TTCA). TEX. CIV. PRAC. & REM. CODE § 101.101(a). The 

remaining jurisdictional arguments were presented to and rejected by the trial 

court. The County contends that (1) the exclusive-remedy provision of the 

Workers’ Compensation Act barred Mrs. Farris’s claim as a matter of law, 

(2) section 89.004 of the Local Government Code was a statutory prerequisite to 

suit and the failure to comply was jurisdictional, (3) Mrs. Farris failed to plead 

facts or evidence to establish each element of a premises liability claim under the 

TTCA, (4) the claim for punitive damages is barred by the TTCA, (5) Mrs. Farris 

failed to plead a claim for use or misuse of tangible personal property, (6) the 

claim for failure to create an asbestos-safety policy is not permitted under the 

 

1 The trial court also denied the motions for summary judgment based on 

contributory negligence, limitations, and no evidence of premises liability.
7

TTCA, and (7) the claim for negligent implementation of policy is barred by the 

TTCA as a discretionary act. 

The Tort Claims Act provides a limited waiver of governmental immunity

and, unless waived, governmental immunity from suit deprives a trial court of 

subject-matter jurisdiction. Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 

217, 224 (Tex. 2004) (citing TEX. CIV. PRAC. & REM. CODE §§ 101.001–.109). We 

review a trial court’s ruling on subject-matter jurisdiction de novo. Id. at 226, 228.

“A plea to the jurisdiction is a dilatory plea, the purpose of which is to defeat a 

cause of action without regard to whether the claims asserted have merit.” Bland 

Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000). In most cases, a plea to

the jurisdiction “should be decided without delving into the merits of the case.” Id.

In reviewing a trial court’s jurisdictional ruling, we construe the pleadings in 

the plaintiff’s favor. Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 

446 (Tex. 1993). A plaintiff bears the burden to allege facts affirmatively 

demonstrating the trial court’s jurisdiction to hear the case. Dallas Area Rapid 

Transit v. Whitley, 104 S.W.3d 540, 542 (Tex. 2003). We consider only the 

plaintiff’s pleadings and evidence relevant to the jurisdictional inquiry. Id. We take 

as true all evidence favorable to the plaintiff and indulge every reasonable 

inference and resolve all doubts in her favor. Miranda, 133 S.W.3d at 228. “[T]his 

standard generally mirrors that of a summary judgment.” Id. Thus, the burden is on 
8

the movant to present evidence establishing that the trial court lacks jurisdiction as 

a matter of law. Id. Thereafter, the burden shifts to the plaintiff to demonstrate that 

a disputed issue of material fact exists regarding the jurisdictional issue. Id. “If a 

fact issue exists, the trial court should deny the plea.” Mission Consol. Indep. Sch. 

Dist. v. Garcia, 372 S.W.3d 629, 635 (Tex. 2012). “But if the relevant evidence is 

undisputed or the plaintiff fails to raise a fact question on the jurisdictional issue, 

the trial court rules on the plea as a matter of law.” Id.

“If there is a gap in jurisdictional facts, the trial court is required to afford 

the plaintiff an opportunity to amend its pleadings.” Green Tree Servicing, LLC v. 

Woods, 388 S.W.3d 785, 792 (Tex. App.—Houston [1st Dist.] 2012, no pet.). A 

trial court’s subject-matter jurisdiction cannot be challenged in a no-evidence 

motion for summary judgment or by an allegation in a plea to the jurisdiction that 

the plaintiff has no evidence of a jurisdictional fact. See id. at 792–94.

I. Tort Claims Act notice

The County argues for the first time on appeal that its governmental 

immunity has not been waived and the trial court lacks subject-matter jurisdiction 

over the claim 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 TTCA. TEX. CIV. PRAC. & REM. CODE § 101.101(a). “Statutory prerequisites 

to a suit, including the provision of notice, are jurisdictional requirements in all 
9

suits against a governmental entity.” TEX. GOV’T CODE § 311.034. Subject-matter 

jurisdiction is essential to a court’s authority to decide a case, cannot be waived, 

and may be raised for the first time on appeal. Tex. Ass’n of Bus., 852 S.W.2d at 

443–45.

The County contends that the notice was due within six months of Judge 

Farris’s last exposure to the courthouse in December 1996 and that the failure to 

give timely notice deprives the court of jurisdiction. Mrs. Farris does not dispute 

that the County did not receive notice before July 1997. Instead, she contends that 

the incident giving rise to the wrongful-death and survival claim was Judge 

Farris’s cancer diagnosis or manifestation of symptoms in late 2004. She thus 

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

There can be more than one “incident giving rise to the claim” for purposes 

of section 101.101(a), and the last incident essential to the existence of a claim 

triggers the statute’s notice period. Univ. of Tex. Sw. Med. Ctr. at Dallas v. 

Loutzenhiser, 140 S.W.3d 351, 356–57 (Tex. 2004), superseded by statute on other 

grounds by Act of May 25, 2005, 79th Leg., R.S., ch. 1150, § 1, 2005 Tex. Gen. 

Laws 3783, 3783 (codified at TEX. GOV’T CODE § 311.034).

“The diagnosis of a malignant asbestos-related condition creates a new cause 

of action . . . .” Pustejovsky v. Rapid-Am. Corp., 35 S.W.3d 643, 653 (Tex. 2000); 

see also Childs v. Haussecker, 974 S.W.2d 31, 33 (Tex. 1998) (in latent 
10

occupational-disease cases, a cause of action does not accrue until a “plaintiff’s 

symptoms manifest themselves to a degree or for a duration that would put a 

reasonable person on notice”). Because Judge Farris’s cancer diagnosis (or 

manifestation of symptoms) in late 2004 was an incident giving rise to the cause of 

action for his injury and death caused by an asbestos-related condition, we 

conclude that Mrs. Farris’s April 4, 2005 notice satisfied section 101.101(a)’s sixmonths’ notice requirement. See Loutzenhiser, 140 S.W.3d at 356–57.

II. Tort Claims Act premises liability claim

The County argues that the trial court erred by denying its amended and 

supplemental plea to the jurisdiction because Mrs. Farris failed to plead a premises

liability claim under section 101.021 of the TTCA. 

The TTCA waives a governmental entity’s immunity for “personal injury 

and death so caused by a condition or use of tangible personal or real property if 

the governmental unit would, were it a private person, be liable to the claimant 

according to Texas law.” TEX. CIV. PRAC. & REM. CODE § 101.021(2). “[I]f a claim 

arises from a premise defect, the governmental unit owes to the claimant only the 

duty that a private person owes to a licensee on private property, unless the 

claimant pays for the use of the premises.” Id. § 101.022(a). “The duty owed to a 

licensee requires that ‘a landowner not injure a licensee by willful, wanton or 

grossly negligent conduct, and that the owner use ordinary care either to warn a 
11

licensee of, or to make reasonably safe, a dangerous condition of which the owner 

is aware and the licensee is not.’” Sampson v. Univ. of Tex. at Austin, 500 S.W.3d 

380, 391 (Tex. 2016) (quoting State Dep’t of Highways & Pub. Transp. v. Payne, 

838 S.W.2d 235, 237 (Tex. 1992)). In the absence of willful, wanton, or grossly 

negligent conduct, a licensee must prove the following elements to establish the 

breach of duty owed to him:

(1) a condition of the premises created an unreasonable risk of harm to 

the licensee; (2) the owner actually knew of the condition; (3) the 

licensee did not actually know of the condition; (4) the owner failed to 

exercise ordinary care to protect the licensee from danger; (5) the 

owner’s failure was a proximate cause of injury to the licensee.

Sampson, 500 S.W.3d at 391; Payne, 838 S.W.2d at 237. A licensee can establish 

that breach of the duty of ordinary care with proof of failure to warn of the 

condition or failure to make it reasonably safe. See City of W. Columbia v. Cornejo 

Garcia, No. 01-16-00139-CV, 2016 WL 5940481, at *4 (Tex. App.—Houston [1st 

Dist.] Oct. 13, 2016, no pet.) (mem. op.). 

The fourth amended petition was the live pleading at the time the court ruled 

on the amended plea to the jurisdiction. It alleged that Judge Farris had worked 

around asbestos-containing materials for many years. The petition further alleged 

that the County exposed Judge Farris to asbestos-containing materials that were 

disturbed or installed during the courthouse renovations in the 1970s and 1980s. 

The petition alleged that the County “knew that asbestos products used in 
12

proximity of [Judge Farris] . . . contained dangerous and harmful substances,” but 

the County failed to warn him, instruct him in proper safety precautions, and adopt 

or enforce a safety plan. It alleged that the County knew that the asbestoscontaining products were “dangerous and harmful to human health and that Judge 

James Farris would not have known of such dangerous properties.” The petition 

alleged gross negligence. And it alleged that Judge Farris’s exposure to asbestos in 

the Jefferson County courthouse was foreseen by the County and was a “cause-infact” of his injuries and death. The petition specifically stated that the County’s 

immunity was waived under the TTCA and denied that any statutory exception or 

exclusion to the waiver of immunity applied.

Under our notice-pleading standard, the fourth amended petition was 

sufficient to state a claim for premises liability under the TTCA. See Miranda, 133 

S.W.3d at 231; TEX. R. CIV. P. 45(b), 47(a). 

The plea to the jurisdiction was combined with a no-evidence motion for 

summary judgment. For each element of the premises liability claim, the County 

asserted that the allegations in the petition were conclusory and that the plaintiff 

had no evidence or had not pleaded specific facts to support each element. The 

County was not entitled to challenge the court’s jurisdiction by way of a noevidence motion for summary judgment or a plea to the jurisdiction that argued 

that Mrs. Farris had no evidence. Green Tree Servicing, 388 S.W.3d at 792–94. 
13

The County did attach evidence to its plea.2 Some of the evidence was relevant to 

the County’s alternative arguments, but none of it conclusively negated any of the 

elements of premises liability. In sum, the County did not sufficiently carry its 

burden to shift the burden of production to the plaintiff. See Miranda, 133 S.W.3d 

at 228 (when evidence is submitted on a plea to the jurisdiction, the procedure 

mirrors a traditional motion for summary judgment). Thus, we conclude that the 

trial court did not err by denying the plea to the jurisdiction on this ground. 

III. Exclusive-remedy provision of the Workers’ Compensation Act

The County contends that the trial court erred by denying its plea to the 

jurisdiction on the ground that Mrs. Farris’s claim is barred by the exclusiveremedy provision of the Texas Workers’ Compensation Act (TWCA). 

 

2 The County’s plea to the jurisdiction evidence consisted of: an affidavit from 

the director of the County’s engineering department establishing that the 

courthouse and the annex were built before 1970, minutes from a 1977 

Commissioners Court meeting calling for a bond election to finance the 

renovations that occurred in the late 1970s and early 1980s, a local 

newspaper article in which plaintiff’s counsel stated that it would be hard to 

prove the case due to the long latency period and near impossibility of 

finding another similarly situated person, 1989 Commissioners Court 

meeting reports regarding asbestos inspection and abatement, contracts for 

the asbestos inspection and abatement, a letter from the contractor regarding 

compliance with state and federal regulations, a 1977 Commissioners Court 

resolution to provide workers’ compensation benefits to elected officials, 

and seven documents regarding the County’s participation in an interlocal 

agreement to provide self-funded workers’ compensation insurance from 

1995–97.
14

“Recovery of workers’ compensation benefits is the exclusive remedy of an 

employee covered by workers’ compensation insurance coverage or a legal 

beneficiary . . . for the death of or a work-related injury sustained by the 

employee.” TEX. LAB. CODE § 408.001(a); see also Port Elevator-Brownsville, 

L.L.C. v. Casados, 358 S.W.3d 238, 241 (Tex. 2012). A participating employer 

may assert the exclusive-remedy provision as an affirmative defense to the tort 

claims of its employees or their beneficiaries when an employee is injured or dies 

from a work-related injury. See HCBeck, Ltd. v. Rice, 284 S.W.3d 349, 350 (Tex. 

2009). In general, the exclusive-remedy bar provides immunity from liability for 

participating employers. See id. at 354 (employers who provide workers’

compensation “are immunized from negligence liability for workplace injuries to 

their employees”).

Governmental immunity encompasses both immunity from liability and 

immunity from suit. Miranda, 133 S.W.3d at 224. The TTCA waives 

governmental immunity “to the extent of liability created by this chapter.” TEX.

CIV. PRAC. & REM. CODE § 101.025(a). As such, under the TTCA immunity from 

suit and immunity from liability are coextensive. Miranda, 133 S.W.3d at 224; see 

also TEX. CIV. PRAC. & REM. CODE § 101.021(2) (waiving liability for a premises 

defect “if the governmental unit would, were it a private person, be liable to the 

claimant according to Texas law”). The TTCA expressly provides that the 
15

immunities granted by the workers’ compensation laws apply to governmental 

units: “A governmental unit that has workers’ compensation insurance or that 

accepts the workers’ compensation laws of this state is entitled to the privileges 

and immunities granted by the workers’ compensation laws of this state to private 

individuals and corporations.” TEX. CIV. PRAC. & REM. CODE § 101.028.

Therefore, if a governmental unit is immune from liability by having provided 

workers’ compensation, it is likewise immune from suit. See City of Bellaire v. 

Johnson, 400 S.W.3d 922, 924 (Tex. 2013) (per curiam).

In the trial court and on appeal, the parties have disputed whether the 

exclusive-remedy bar is an affirmative defense or whether it is a jurisdictional 

matter. Because immunity from liability and immunity from suit are coextensive in 

this case, it does not matter whether the exclusive-remedy bar is raised by a 

traditional motion for summary judgment or by a plea to the jurisdiction. In both 

scenarios, the County bears the burden to produce evidence establishing its 

entitlement to the exclusive-remedy bar. See Miranda, 133 S.W.3d at 228 

(procedure for plea to the jurisdiction when evidence has been submitted to trial

court mirrors that of traditional summary judgment). Once the governmental entity 

has established the applicability of the exclusive-remedy bar, the burden of 

production shifts to the plaintiff to bring forward evidence demonstrating that a 

question of fact precludes summary judgment or the granting of a plea to the 
16

jurisdiction. See Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 

S.W.3d 844, 848 (Tex. 2009) (to prevail on summary judgment, movant must 

demonstrate no issues of material fact and entitlement to judgment as a matter of 

law); Garcia, 372 S.W.3d at 635 (“If a fact issue exists, the trial court should deny 

the plea.”). 

A political subdivision, such as a county, is required to “extend workers’ 

compensation benefits to its employees” through an insurance policy, by selfinsurance, or by an “interlocal agreement with other political subdivisions 

providing for self-insurance.” TEX. LAB. CODE § 504.011; see also id. § 504.001(3) 

(defining political subdivision to include a county). When the employer is a 

political subdivision, an “employee” for the purpose of workers’ compensation is 

either “(A) a person in the service of a political subdivision who has been 

employed as provided by law; or (B) a person for whom optional coverage is 

provided under Section 504.012 or 504.013.” Id. § 504.001(2). A county extends 

optional coverage by “majority vote of the members of the governing body of a 

political subdivision,” i.e., the commissioners court, and optional coverage may be 

extended to an elected official. See id. § 504.012.

In its amended plea to the jurisdiction, the County argued for the first time 

that Mrs. Farris’s claims were barred by the exclusive-remedy bar. It supported the 

plea with evidence that in December 1977 the Commissioners Court passed a 
17

resolution electing “to provide Voluntary Workers’ Compensation for all elected 

officials in Jefferson County, Texas.” The County also provided evidence 

establishing that between 1989 and 1998, two years after Judge Farris retired, the 

County participated in an interlocal agreement, providing workers’ compensation 

by contributing to a fund. 

The County contends that this evidence established the applicability of the 

exclusive-remedy bar as a matter of law. In making this argument, the County 

asserts that it was providing workers’ compensation benefits to Judge Farris at the 

time of his retirement, and that his “retirement sets the date for when coverage and 

the identity of his employer must be analyzed.” Under the TWCA: “If an injury is 

an occupational disease, the employer in whose employ the employee was last 

injuriously exposed to the hazards of the disease is considered to be the employer 

of the employee under this subtitle.” TEX. LAB. CODE § 406.031(b); see id.

§ 504.002(a)(5) (incorporating § 406.031 by reference). 

The County has not provided evidence about the last date of Judge Farris’s 

injurious exposure to asbestos. The evidence in the appellate record indicates that 

Judge Farris’s exposure was connected to at least four different time periods: 

(1) when the courthouse and the annex were originally built using asbestoscontaining materials, 1932 and 1954 respectively, (2) when the renovation took 

place, allegedly disrupting the asbestos-containing materials and creating copious 
18

amounts of dust in the buildings and Judge Farris’s courtroom, approximately 1977 

to 1982, (3) when the asbestos-abatement work occurred, around 1989, and 

(4) when he retired in 1996. 

The County’s evidence established that it elected in 1977 to provide 

coverage to elected officials. Section 504.012 provides for an election to provide 

optional coverage, but nothing in the statute requires the election to be irrevocable. 

The County has not provided evidence about whether this election continued 

throughout the following two decades.

Because the County’s evidence failed to establish its entitlement to the 

exclusive-remedy bar as a matter of law, we conclude that the trial court did not err 

by denying the plea to the jurisdiction.

The County also advances a statutory argument in favor of the applicability 

of the exclusive-remedy bar. Relying on City of Bellaire v. Johnson, the County 

argues that it was required to provide workers’ compensation to its employees and 

that Judge Farris was covered as a matter of law. See 400 S.W.3d at 923. The 

County contends that Mrs. Farris cannot argue that it “has done what the law 

prohibits.” Id. As we have observed, the workers’ compensation coverage afforded 

to elected officials was optional. See TEX. LAB. CODE § 504.012. The County was 

not required to provide coverage to Judge Farris, and he was a deemed employee 

only if the County elected to provide the optional coverage. See id.
19

As a corollary to its argument that Mrs. Farris’s claims are barred by the 

exclusive-remedy provision, the County also argues that the trial court should have 

dismissed the case because Mrs. Farris failed to exhaust administrative remedies 

under the TWCA. But because there are fact issues regarding workers’ 

compensation coverage, the trial court did not err by denying the plea to the 

jurisdiction for failure to exhaust administrative remedies, nor did the court err by 

denying the plea to the jurisdiction based on the exclusive-remedy bar. 

IV. Presentation under Local Government Code section 89.004

The County argues that Mrs. Farris’s claim is barred because she did not 

present her claim to the Commissioners Court of Jefferson County 60 days before 

filing suit against it, as required by Local Government Code section 89.004. The 

County argues that the presentation requirement is a statutory prerequisite to suit, 

which section 311.034 of the Government Code mandates is jurisdictional. Mrs. 

Farris contends that section 89.004 is not a jurisdictional statutory prerequisite to 

her claim, which is brought under the Tort Claims Act. She also contends that the 

County has waived its right to seek abatement so that the claim can be presented to 

the Commissioners Court by litigating this case for more than a decade without 

raising the issue. 
20

The current version of section 89.004 of the Local Government Code 

appears in Chapter 89, entitled “General Provisions Relating to County 

Administration,” and it provides for “Presentation of Claim”:

(a) Except as provided by Subsection (c), a person may not file suit on 

a claim against a county or an elected or appointed county official in 

the official’s capacity as an appointed or elected official unless the 

person has presented the claim to the commissioners court and the 

commissioners court neglects or refuses to pay all or part of the claim 

before the 60th day after the date of the presentation of the claim.

(b) If the plaintiff in a suit against a county does not recover more 

than the commissioners court offered to pay on presentation of the 

claim, the plaintiff shall pay the costs of the suit.

(c) A person may file a suit for injunctive relief against a county. 

After the court’s ruling on the application for temporary injunctive 

relief, any portion of the suit that seeks monetary damages shall be 

abated until the claim is presented to the commissioners court and the 

commissioners court neglects or refuses to pay all or part of the claim 

by the 60th day after the date of the presentation of the claim.

TEX. LOC. GOV’T CODE 89.004. A version of the presentment requirement has been 

part of Texas law since 1895.3

 

3 See Act of May 25, 2003, 78th Leg., R.S., ch. 1203, § 1(a), 2003 Tex. Gen. 

Laws 3418, 3418 (codified at TEX. LOC. GOV’T CODE § 89.004(a) (“A 

person may not sue on a claim against a county unless the person has 

presented the claim to the commissioners court and the commissioners court 

has neglected or refused to pay all or part of the claim.”); Act of Apr. 23, 

1999, 76th Leg., R.S., ch. 62, § 13.03(b), 1999 Tex. Gen. Laws 340, 340 

(amended 2005) (current version at TEX. LOC. GOV’T CODE § 89.004(a));

Act of May 1, 1987, 70th Leg., R.S., ch. 149, § 1, 1987 Tex. Gen. Laws 707, 

793 (amended 1999) (current version at TEX. LOC. GOV’T CODE

§ 89.004(a)); Gaines Cty. v. Hill, 25 S.W.2d 197, 198 (Tex. Civ. App.—El 

Paso 1930, no writ) (quoting TEX. REV. CIV. STAT. art. 1573 as providing: 
21

The Supreme Court and this court previously have held that the presentment 

requirement is not jurisdictional. See Essenburg v. Dallas Cty., 988 S.W.2d 188, 

189 (Tex. 1998) (per curiam) (stating that presentment requirement was to promote 

settlement, not to define subject-matter jurisdiction); Harris Cty. v. McDougal, No. 

01-98-00812-CV, 2000 WL 190204, at *5–6 (Tex. App.—Houston [1st Dist.] Feb. 

17, 2000, pet. denied) (not designated for publication). In Loutzenhiser, the 

Supreme Court held that failure to give notice of a claim under section 101.101(a) 

of the TTCA did not deprive the trial court of jurisdiction. 140 S.W.3d at 364. In 

reaching this conclusion, the court considered its prior holding in Essenburg

regarding section 89.004, noting: “A requirement of presentment merely gives a 

governmental unit an opportunity to decide for itself whether to pay a claim.” Id. at 

361. Relying in part on Essenburg and on its prior holding that the TTCA’s venue 

requirement was not jurisdictional, the court concluded that the presuit notice 

requirement was not jurisdictional either. Id. at 360–65 (citing Brown v. Owens, 

674 S.W.2d 748, 751 (Tex. 1984)).

 

“No county shall be sued unless the claim upon which such suit is founded 

shall have first been presented to the commissioners’ court for allowance, 

and such court shall have neglected or refused to audit and allow the same, 

or any part thereof.”); Anderson v. Ashe, 90 S.W. 872, 874 (Tex. 1906) 

(quoting then-current statute, Article 790, Rev. St. 1895, as follows: “No 

county shall be sued unless the claim upon which such suit is founded shall 

have first been presented to the county comissioners’ court for allowance, 

and such court shall have neglected or refused to audit and allow the same or 

any part thereof.”). 
22

In 2005, and in response to Loutzenhiser, the Legislature amended section 

311.034 of the Code Construction Act, adding the last sentence:

Waiver of Sovereign Immunity

In order to preserve the legislature’s interest in managing state fiscal 

matters through the appropriations process, a statute shall not be 

construed as a waiver of sovereign immunity unless the waiver is 

effected by clear and unambiguous language. In a statute, the use of 

“person,” as defined by Section 311.005 to include governmental 

entities, does not indicate legislative intent to waive sovereign

immunity unless the context of the statute indicates no other 

reasonable construction. Statutory prerequisites to a suit, including 

the provision of notice, are jurisdictional requirements in all suits 

against a governmental entity.

TEX. GOV’T CODE § 311.034 (emphasis supplied). 

In Prairie View A & M University v. Chatha, 381 S.W.3d 500 (Tex. 2012), 

the Supreme Court explained that “the term ‘statutory prerequisite’” in section 

311.034 has three components: (1) it “must be found in the relevant statutory 

language,” (2) it must be a requirement, and (3) the statute must mandate that the 

requirement be met before the lawsuit is filed. 381 S.W.3d at 511–12. The Court 

also explained that its construction of “statutory prerequisite” was consonant with 

prior case law and the statutory history of section 311.034. Id. at 512. The Court 

concluded, “The Legislature’s mandate is clear: In a statutory cause of action 

against a governmental entity, the failure to adhere to the statute’s mandatory 

provisions that must be accomplished before filing suit is a jurisdictional bar to 

suit.” Id. 
23

The parties in this case dispute the first component—identification of the 

relevant statutory language. The County argues that the relevant statutory language 

can appear in any statute that applies to the governmental entity in question. The 

County relies on a statement in Colquitt v. Brazoria County:

After our decision in Loutzenhiser, the Legislature amended section 

311.034 of the Code Construction Act to make notice, and other 

statutory prerequisites, jurisdictional, that is, a condition of the Act’s 

waiver of immunity from suit. See Act of June 1, 2005, 79th Leg., 

R.S. ch. 1150, 2005 Tex. Gen. Laws 3783 (adding the last sentence to 

TEX. GOV’T CODE § 311.034).

324 S.W.3d 539, 542–43 (Tex. 2010) (per curiam). The County contends that the 

words “and other statutory prerequisites” refers to other statutory prerequisites that 

may be found in any statute that applies to a governmental entity, but Colquitt only 

concerned the statutory notice provision in the Texas Tort Claims Act. Id. at 541. 

The issue in Colquitt had nothing to do with statutory presentment. The question 

presented was whether filing a lawsuit within six months of the incident that gave 

rise to the tort claim was sufficient to satisfy the notice requirement, which the 

Court acknowledged was jurisdictional after the amendment of section 311.034. Id.

at 541–43.

The County also relies on Dallas County v. C. Green Scaping, L.P., 301 

S.W.3d 872 (Tex. App.—Dallas 2009, no pet.), decided three years before Chatha. 

The court of appeals noted that “[p]rerequisite to suit” is not defined by the statute, 

and relying on “common usage,” it concluded that it was “a requirement to be 
24

fulfilled before suit is filed.” C. Green Scaping, 301 S.W.3d at 878. But three years

after C. Green Scaping, the Supreme Court issued its opinion in Chatha and 

defined “statutory prerequisite.” Thus, we are bound to follow Chatha.

Finally, the County asserts that section 89.004 is analogous to the 

requirement to present a tort claim to the appropriate federal agency before filing 

suit under the Federal Tort Claims Act. That requirement, however, is called a 

“prerequisite” in the Federal Tort Claims Act. See 28 U.S.C. § 2675.

Chapter 89 of the Local Government Code, relied upon by the County, is 

entitled “General Provisions Relating to County Administration.” TEX. LOC. GOV’T 

CODE §§ 89.001–.006. It does not create any cause of action, and it does not 

include an express waiver of sovereign immunity. See Travis Cty. v. Pelzel & 

Assocs., Inc., 77 S.W.3d 246, 249 (Tex. 2002), superseded on other grounds by 

statute as recognized in Tooke v. City of Mexia, 197 S.W.3d 325, 342 n.78 (Tex. 

2006). Section 89.004(c) provides that if a suit seeks both injunctive relief and 

monetary damages, after ruling on the application for temporary injunctive relief, 

the trial court shall abate the case for presentment to the commissioners court. TEX.

LOC. GOV’T CODE § 89.004(c). Because the statute contemplates that, at least in 

some situations, presentment to the commissioners court may happen after the 

filing of suit, it would defy logic to construe this as a jurisdictional prerequisite to 

filing suit. See Roccaforte v. Jefferson Cty., 341 S.W.3d 919, 925 (Tex. 2011). 
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Instead, the Chapter 89 presentment requirement serves as notice to commissioners 

court of a claim, affording it the opportunity to investigate and settle the claim

without the burden of litigation. See Pelzel & Assocs., 77 S.W.3d at 249. It is a 

condition precedent to suit generally, but it is not a statutory prerequisite as 

contemplated by section 311.034. Id.

In contrast, Chapter 101 of the Civil Practice and Remedies Code is entitled 

“Tort Claims.” See TEX. CIV. PRAC. & REM. CODE § 101.001–.109. It does not 

create a new cause of action, but rather waives immunity to allow certain tort 

claims that separately exist under Texas law. See id. § 101.021. Most important, it 

is only because of the express, limited waiver of sovereign immunity in the TTCA 

that a claimant like Mrs. Farris is entitled to sue a governmental entity. The TTCA 

contains a presuit notice requirement that permits either actual or formal notice and 

serves the same purpose as presentment. See id. § 101.101; Green v. City of 

Houston, No. 01-14-00808-CV, 2015 WL 1967582, at *2 (Tex. App.—Houston 

[1st Dist.] Apr. 30, 2015, no pet.) (mem. op.). 

We conclude that the statutory prerequisites for this suit are found in the 

Tort Claims Act, not in Local Government Code section 89.004. Because we have 

concluded that the Chapter 89 presentment requirement was not a statutory 

prerequisite, we hold that the trial court did not err by denying the plea to the 

jurisdiction on this basis.
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V. Exemplary damages

The County argues that the trial court erred by not dismissing the claim for 

punitive damages. Mrs. Farris agrees that punitive damages are not available under 

the TTCA. Because the TTCA “does not authorize exemplary damages,” we 

sustain the argument and render judgment dismissing the claim for punitive 

damages from the County. See TEX. CIV. PRAC. & REM. CODE § 101.024. 

VI. Use of tangible personal property 

The County argues that the trial court should have dismissed the claim based 

on the absence of use or misuse of tangible personal property. In its amended plea 

to the jurisdiction, the County stated, “Plaintiff has no claim for use or misuse of 

personal property.” It argued that a claim cannot be “both a premises defect claim 

and a claim relating to a condition or use of tangible property.” See Sampson, 500 

S.W.3d at 385. Mrs. Farris agrees that she has no stand-alone claim for use or 

misuse of personal property. Her petition also alleged that the County was “grossly 

negligent” during the courthouse renovation in the 1970s and early 1980s. This is 

what the County asserts is Mrs. Farris’s negligent-implementation claim. “[U]nder 

the Tort Claims Act an item of tangible personal property may create a condition 

of the premises, resulting in a premises defect claim.” Sampson, 500 S.W.3d at 

389. This is essence of Mrs. Farris’s claim: tangible personal property (asbestoscontaining materials) created a dangerous condition of the premises (the 
27

courthouse and annex). We agree that Mrs. Farris did not state a claim for use or 

misuse of tangible personal property—not because her pleading is deficient, but 

because she chose to proceed on a premises liability theory. 

Because she did not plead a claim for the use or misuse of tangible personal 

property under the TTCA, the trial court did not err by denying the plea to the 

jurisdiction on this basis. 

VII. Policy claims

The County contends that the trial court should have dismissed the claims

for failure to create a policy regarding asbestos safety and for negligent 

implementation of policy. Mrs. Farris responds that she does not have separate 

claims for failure to create an asbestos-safety policy and failure-to-implement 

policy. She contends that these allegations were part of her premises liability 

claim. 

We agree. The allegations that the County challenges were in separately 

numbered paragraphs under the subheading, “Count Three.” Count Three set out 

the TTCA claim against the County. Paragraph 23 alleged that the County “failed 

to timely adopt or enforce a safety plan and method of handling asbestos 

containing products.” (Emphasis supplied.) Paragraph 26 alleged that the County 

was “grossly negligent in implementing its policy decision to renovate” the 

courthouse, and that the “gross negligence includes Defendant, Jefferson County’s 
28

operational level decisions, such as using, installing, and disturbing asbestoscontaining materials that it knew were dangerous.” These allegations pertain to the 

elements of the premises liability claim. Because we conclude that these are not 

separate claims, we hold that the trial court did not err by not dismissing them.

Conclusion

We reverse the order of the trial court in part, rendering judgment dismissing 

any claim for exemplary damages, and we affirm the remainder of the trial court’s 

order. 

PER CURIAM

Panel consists of Justices Jennings, Massengale, and Caughey.

Justice Jennings, concurring.