Opinion issued December 28 , 201 8

In The 

## Court of Appeals For The 

## First District of Texas

———————————— NO. 01 - 17 - 00493 - CV

——————————— JEFFERSON COUNTY, TE XAS , Appellant

V. ELLARENE FARRIS, IND IVIDUALLY AND AS PER SONAL REPRESENTATIVE OF TH E HEIRS AND ESTAT E 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 negli gence 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 fa iled 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. T he County raised an additional jurisdictional argument for the first time on appeal: its governmental immunity has not been waived because it did not receive

n otice of the claim against it within six months of the incident gi ving 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 J efferson 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 ad dition, 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 asbe stos

- 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 Litig ation 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 waive r of governmental immunity based on premises liability. The County argued that Mrs

.4

Farris a lleg ed 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 pr edate d the 1970 enactment o f 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 t he 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, t he trial court partially granted the plea to the jurisdiction as to any claims based on acts or omissions t hat occurred before January 1, 1970

. The court denied the remainder of the plea. The County did not appeal the trial court’s ruling. See T EX
. R. A PP
. 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 T EX
. L OC
. G OV ’ T C ODE § 89.004 ( “ Presen tation of Claim ” ) , and because statutory prerequisites to suit are jurisdictional under the Government Code , the court lacked jurisdiction

. See T EX
. G OV ’ T C ODE § 311.034 (“Waiver of Sovereign Immunity”)

. The County also argued that the exclusive

- remedy pro vision 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 T EX
. C IV
. P RAC
. & R EM
. C ODE § 101.021(2). F inally, 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 claim s for acts or omissions occurring after January 1, 1970. See T EX
. C IV
. P RAC
. & R EM
. C ODE § 101.061 ( “T ort C ommitted B efore January 1, 1970 ” ); id. § 101.021 ( “G overnmental L iability ” ). The court also denied the plea to the jurisdiction based on the exclusiv e - remedy provision of workers’ compensation , the pre sentation requirement found in s ection 89.004 of the Local Government6

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. F or the first time on appeal , the County contends that its governmental immunity has not been waived and the trial court lacks subject

- matter jurisdict ion 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). T EX
. C IV
. P RAC
. & R EM
. C ODE § 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) s ection 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 c laim for punitiv e 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 l iability.7

TTCA, and (7) the claim for negligent impleme ntation 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 T EX
. C IV
. P RAC
. & R EM
. C ODE §§ 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, th e 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, 44 6 (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 22 8. “[T]his standard generally mirrors that of a summary judgment.” Id. Thus, the burden is on8

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 is sue 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 tr ial 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 79 2

– 9 4. 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 cl aim against it within six months of “the day that the incident giving rise to the claim occurred,” as required by the TTCA. T EX
. C IV
. P RAC
. & R EM
. C ODE § 101.101(a)

. “Statutory prerequisites to a suit, including the provision of notice, are jurisdictional requirements in all9

suits against a governmental entity.” T EX
. G OV ’ T C ODE § 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 noti ce 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 sec tion 101.101(a), and the last incident essential to the existence of a claim triggers the statute’s notice pe riod

. 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 T EX
. G OV ’ T C ODE § 31 1.034).

“ 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 latent10

occupational

- dis ease 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 200 4 was an incident giving rise to the cause of action for his injury and death caused by an asbestos

- related condition , w e conclude that Mrs. Farris’s April 4, 2005 notice satisfied sec tion 101.101(a)’s six

months’ notice requirement. See Loutzenhiser , 140 S.W.3d at 356

– 57

. I I . T ort Claims Act premises liability claim The County argues that the trial court erred by denying its amended and supplement al plea to the jurisdiction because Mrs. Farris failed to plead a premises liability claim under s ection 101.0 21 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

accor ding to Texas law.” T EX
. C IV
. P RAC
. & R EM
. C ODE § 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 th e 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 a11

licensee of, or to make reasonabl y 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 High way s & Pub. Transp. v. Payne , 838 S.W.2d 235, 237 (Tex. 1992) ) . In the abse nce 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 kne w 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 a t 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 asbesto s - 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 t he County “knew that asbestos products used in12

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 asbestos

containing 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 expo sure to asbestos in the Jefferson County courthouse was foreseen by the C ounty and was a “ cause - in

fact” of his injuries and death. The petition specifically stated that the County’s immunity was waived under the TTCA and denied that any statutory exceptio n 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; T EX
. R. C IV
. P. 45 (b) , 47 (a)

. The pl ea 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 no

evidence motion for summary judgment or a plea to the jurisdiction that argued that Mrs. Farris had no evidence. Green Tree Se rvicing , 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 s ufficiently carry its burden to shift the burden of production to the plaintiff. See Miranda , 133 S.W.3d at 22 8 (when evidence is submitted on a plea to the jurisdiction, the procedure mirrors a traditional motion for summary judgment). Thus, we conclude t hat the trial court did not err by denying the plea to the jurisdiction on this ground. II I . 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 exclusive

remedy 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 im possibility 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 stat e 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 a n interlocal agreement to provide self

- funded workers’ compensatio n insurance from 1995

– 97.14

“R ecovery 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.” T EX
. L AB
. C ODE § 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 excl usive

- 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”). G overnmental immunity encompasses bo th immunity from liability and immunity from suit. Miranda , 133 S.W. 3 d at 224. The TTCA waives governmental immunity “to the extent of liability created by this chapter.” T EX
. C IV
. P RAC
. & R EM
. C ODE § 101.025(a). As such, under the TTCA immunity from suit and immunity from liability are coextensive. Miranda , 133 S.W. 3 d at 224; see also T EX
. C IV
. P RAC
. & R EM
. C ODE § 101.021(2) (waiving liability for a premises defect “if the governmental unit would, were it a private person, be liable to the claimant accordi ng to Texas law”). The TTCA expressly provides that the15

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 s tate is entitled to the privileges and immunities granted by the workers’ compensation laws of this state to private individuals and corporations.” T EX
. C IV
. P RAC
. & R EM
. C ODE § 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 d efense 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 bear s 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 shift s to the plaintiff to bring forward evidence demonstrating that a question of fa ct precludes summary judgment or the granting of a plea to the16

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” t hrough an insurance policy, by self

insurance, or by an “interlocal agreement with other political subdivisions providing for self

- insurance.” T EX
. L AB
. C ODE § 504.011 ; see also id. § 504.001(3) (defining political subdivision to include a county). When th e 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 c ommissioners c ourt, and optional coverage may be extended to an elected official. See i d. § 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 a17

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 part icipated 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
assert s 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 occupatio nal 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 sub title.” T EX
. L AB
. C ODE § 406.031(b); see id. § 504.002 (a)(5) (incorporating § 4 06.031 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 wa s connected to at least four different time peri ods: (1) when the courthouse and the annex were originally built using asbestos

containing materials, 1932 and 1954 respectively, (2) when the renovation took place , allegedly disrupting the asbestos

- containing materials and creating copious18

amounts of dus t 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 elec ted 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 t wo 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 argumen t 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 T EX
. L AB
. C ODE § 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 Cou nty 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 den ying the plea to the jurisdiction for failure to exhaust administrative remedies, no r did the court err by denying the plea to the jurisdiction based on the exclusive

- remedy bar. I V . Presentati on under Local Government Code s ection 89.004 The County argu es 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 r equirement is a statutory prerequisite to suit, which s ection 311.034 of the Government Code mandates is jurisdictional. Mrs. Farris con tends that s ection 89.004 is not a jurisdictional statutory prerequisite to her claim, which is brought under the Tort C laims 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 s ection 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 ag ainst 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 t o 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. T EX
. L OC
. G OV ’ T C ODE 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 T EX
. L OC
. G OV ’ T C ODE § 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, § 1 3.03(b) , 1999 Tex. Gen. Laws 34 0 , 34 0 (amended 2005) (current version at T EX
. L OC
. G OV ’ T C ODE § 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 T EX
. L OC
. G OV ’ T C ODE § 89.004(a) ); Gaines Cty

. v. Hill , 25 S.W.2d 197, 198 (Tex. Civ. App.

— El Paso 1930, no writ) ( quoting T EX
. R EV
. C IV
. S TAT
. 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. 199 8 ) (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 T TCA did not deprive the trial court of jurisdiction. 140 S.W.3d at 364. In reaching this conclusion, the c ourt 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 jurisdict ional, the c ourt concluded that the presuit notice requirement was not jurisdictional either. Id. at 36 0

– 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 audi t 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 b een 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 Loutze n hiser , 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 imm unity 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. T EX
. G OV ’ T C ODE § 311.034 (emphasis supplied). In P rairie View A & M Univ ersity 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 re quirement, and (3) the statute must mandate that the requirement be met before the lawsuit is filed. 381 S.W.3d at 511

– 12. The C ourt also explained that its construction of “statutory p r er e quisite” was consonant with prior case law and the statutory histor y of section 311.034. Id. at 512. The C ourt 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 su it 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 governmen tal entity in question. T he 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, jurisdictio nal, 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 (addin g the last sentence to T EX
. G OV ’ T C ODE § 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 , b ut 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 requirem ent, which the Court acknowledged was jurisdictional after the amendment of section 311.034. Id. at 5 41

– 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 Chat ha

. 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 be24

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

a fter 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 unde r the Federal Tort Claims Act. T hat 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.” T EX
. L OC
. G OV ’ T C ODE §§ 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. T EX
. L OC
. G OV ’ T C ODE § 89.004(c). Because the statute contemplates that , at least in some situations, presentment to the comm issioners 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).25

Instead, t he Chapter 89 presentment requirement se rves 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 stat utory prerequisite as contemplated by section 311.034

. Id. In contrast, Chapter 101 of the Civil Practice and Remedies Code is entitled “Tort Claims.” See T EX
. C IV
. P RAC
. & R EM
. C ODE § 101.001

– .109. It does not create a new cause of action, but rather wai ves 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 go vernmental entity. The TTCA contains a pr esuit 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.

— Hou ston [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 t he Chapter 89 presentment requir ement was not a statutory prerequisite, we hold that the trial court did not err by denying the plea to the jurisdiction on this basis.26

V . Exemplary damages The County ar gues 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 T EX
. C IV
. P RAC
. & R E M
. C ODE § 101.024. V I . 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 state d, “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

- im plementation 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 prop erty (asbestos

containing materials) created a dangerous condition of the premises (the27

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 becaus e 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. VI I . Policy cl aims 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 c reate 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 subheadin g, “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 t hat the County was “grossly negligent in implementing its policy decision to renovate” the courthouse , and that the “ gross negligence includes Defendant, Jefferson County’s28

operational level decisions, such as using, installing, and disturbing asbestos

con taining 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 Jenni ngs, concurring.