Reversed and Rendered and Memorandum Opinion filed May 15, 2014.

In The

Fourteenth Court of Appeals

NO. 14-13-00415-CV

THE CITY OF HOUSTON, Appellant

V.

MARY MCGOWEN, Appellee

On Appeal from the 165th District Court

Harris County, Texas

Trial Court Cause No. 2011-18593

MEMORANDUM OPINION

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

Houston’s plea to the jurisdiction. See Tex. Civ. Prac. & Rem. Code § 51.014(a)(8)

(allowing an appeal from an interlocutory order denying a plea to the jurisdiction 

by a governmental unit). Because timely formal notice of the claim was not 

provided and the City had no actual notice, the trial court erred in denying the 

City’s plea. Accordingly, we reverse the trial court’s order denying the City’s plea 

to the jurisdiction and render judgment dismissing appellee Mary McGowen’s 

claims for lack of subject-matter jurisdiction.
I. FACTUAL AND PROCEDURAL BACKGROUND

Mary McGowen filed suit against the City, alleging she was injured in a 

traffic accident. McGowen alleged she was a passenger in a vehicle driven by Joel 

Steadman Smith, which collided with a City-owned pickup truck driven by 

Vincent Smith, a City Public Works Department employee. McGowen sued the 

City and both drivers for negligence.1 McGowen alleged she was injured as a result 

of the accident and was treated at a hospital for injuries to her neck, back, arm, and 

rib cage. McGowen further asserted that the Houston Police Department (“Police 

Department”) investigated the accident and filed a report.

McGowen alleged that the City’s sovereign immunity has been waived 

under the Texas Tort Claims Act. See Tex. Civ. Prac. & Rem. Code § 101.021 

(providing a limited waiver of immunity for personal injuries proximately caused 

by the negligence of an employee acting within his scope of employment arising 

from the operation of a motor-driven vehicle). The Texas Tort Claims Act requires 

pre-suit notice. See Tex. Civ. Prac. & Rem. Code § 101.101. 

The City filed a plea to the jurisdiction, alleging the trial court lacked 

subject-matter jurisdiction because McGowen failed to provide the City with the 

required notice under the Texas Tort Claims Act. The City asserted McGowen did 

not provide timely formal notice of her claim and the City had no actual notice of 

the claim before suit was filed. McGowen asserts that she provided formal notice 

to the City by means of a driver’s crash report. McGowen also asserts that the City 

had actual notice of her claim sufficient to satisfy the requirements under Texas 

Civil Practice and Remedies Code Section 101.101(c). The trial court denied the 

plea to the jurisdiction without an evidentiary hearing, and this appeal followed.

1 After the City filed a motion to dismiss, McGowen non-suited her claims against the City 

employee. See Tex. Civ. Prac. & Rem. Code § 101.106(e). McGowen also sued Juana G. 

Rodriquez, the owner of the vehicle driven by Joel Steadman Smith, but McGowen’s claims 

against Rodriguez are not at issue in this appeal. 

2

 
II. ISSUE AND STANDARD OF REVIEW

In a single issue, the City alleges that the trial court erred in denying the 

City’s plea to the jurisdiction because McGowen did not give the City timely 

formal notice of her claim and the City did not have actual notice of McGowen’s 

claim before suit was filed. The City asserts that the absence of timely notice is an 

incurable jurisdictional defect. See Tex. Gov’t Code § 311.034 (“Statutory 

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

requirements in all suits against a governmental entity.”).

A plea to the jurisdiction challenges a trial court’s subject-matter 

jurisdiction. City of Dallas v. Carbajal, 324 S.W.3d 537, 538 (Tex. 2010) (per 

curiam). Whether a court has jurisdiction is a question of law that is reviewed de 

novo. City of Elsa v. Gonzalez, 325 S.W.3d 622, 625 (Tex. 2010) (per curiam). 

Therefore, we review a ruling on a plea to the jurisdiction de novo. State v. 

Holland, 221 S.W.3d 639, 643 (Tex. 2007). When performing our review of a trial 

court’s ruling on a plea to the jurisdiction, we construe the pleadings liberally in 

favor of conferring jurisdiction. Tex. Dep’t of Transp. v. Ramirez, 74 S.W.3d 864, 

867 (Tex. 2002).

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

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

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

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

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

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

question regarding the jurisdictional issue, then the plea to the jurisdiction must be 

denied. See id. at 227–28. But, if the relevant evidence is undisputed or fails to 

raise a fact question on the jurisdictional issue, then the court rules on the plea to 

the jurisdiction as a matter of law. Id. at 228. In ruling on a plea to the jurisdiction, 

3
a court does not consider the merits of the parties’ claims. See id. at 226–28; 

County of Cameron v. Brown, 80 S.W.3d 549, 555 (Tex. 2002). 

III. THE TEXAS TORT CLAIM ACT’S NOTICE REQUIREMENTS 

The Texas Tort Claims Act requires a plaintiff to notify a governmental unit 

of a claim in order to invoke a waiver of sovereign immunity under that statute. 

Tex. Civ. Prac. & Rem. Code § 101.101. There are two methods of accomplishing 

notice: formal written notice and actual notice. See id.

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

claims to enable governmental units to gather information necessary to guard 

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

Justice v. Simons, 140 S.W.3d 338, 344 (Tex. 2004). The failure to comply with 

the notice requirements in the Texas Tort Claims Act deprives the trial court of 

subject-matter jurisdiction. City of Dallas v. Carbajal, 324 S.W.3d 537, 537–38 

(Tex. 2010) (per curiam). 

A. Formal Notice

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

immunity under the Texas Tort Claims Act, the governmental unit is entitled to 

written notice of a claim against it not later than six months after the day that the 

incident giving rise to the claim occurred. Tex. Civ. Prac. & Rem. Code § 

101.101(a). “The notice must reasonably describe: (1) the damage or injury 

claimed; (2) the time and place of the incident; and (3) the incident.” Id. Formal 

notice must be submitted in writing. Cathey v. Booth, 900 S.W.2d 339, 340 (Tex.

1995) (per curiam).

B. Actual Notice

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

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

4
has received some injury.” See Tex. Civ. Prac. & Rem. Code § 101.101(c). The 

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

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

knowledge, the governmental unit must have knowledge of (1) a death, injury, or 

property damage; (2) the governmental unit’s alleged fault producing or 

contributing to the death, injury, or property damage; and (3) the identity of the 

parties involved.” 900 S.W.2d at 341. The high court later clarified the meaning of 

the second requirement by stating:

What we intended in Cathey by the second requirement for actual 

notice was that a governmental unit have knowledge that amounts to 

the same notice to which it is entitled by section 101.101(a).

Simons, 140 S.W.3d at 347. The Simons court explained that this requirement 

“includes subjective awareness of its fault, as ultimately alleged by the claimant, in 

producing or contributing to the claimed injury.” Id. Subjective awareness is 

required because if a governmental entity is not aware of its fault, it does not have 

the same incentive to gather the information the statute is designed to provide. Id. 

at 347. “Fault, as it pertains to actual notice, is not synonymous with liability; 

rather, it implies responsibility for the injury claimed.” Univ. of Tex. Sw. Med. Ctr. 

at Dallas v. Estate of Arancibia, 324 S.W.3d 544, 550 (Tex. 2010).

C. The City s Notice Provisions

The City may shorten the time for notice in its charter provisions. See Tex. 

Civ. Prac. & Rem. Code § 101.101(b). The City is a home rule city deriving its 

power from article XI, section 5 of the Texas Constitution. See Tex. Const. art. XI, 

§5. In its plea, the City requested that the trial court take judicial notice of the 

provisions of the City’s charter and its status as a Texas home-rule city. See Tex. 

Loc. Gov’t Code § 9.008(b). The City’s charter requires notice within ninety days 

of the incident. See Houston, Tex., City Charter art. IX, § 11 (1913). The verified

5
notice must include, among other matters, the amount for which the claimant will 

settle the claim, the actual residence of the claimant for six months before the 

accident, and the names and addresses of witnesses. See id. Compliance with these

charter provisions is mandatory and the timely filing of a written notice of a claim 

is a condition precedent to maintenance of a suit against a city for injuries. City of 

Houston v. Torres, 621 S.W.2d 588, 590 (Tex. 1981). Notice to the City is 

provided through notice sent to the City Secretary. See Houston, Tex., Rev. 

Ordinances Ch. 2, art. IV, § 2-74 (1994). 

IV. ANALYSIS

The City asserts it had no notice until suit was filed fourteen months after 

the accident, well beyond the ninety days required in the City Charter and the Tort 

Claims Act’s six-month notice provision. McGowen alleges in her appellate brief 

that a report furnished to the Texas Department of Transportation ( “Transportation 

Department”) satisfies the formal notice requirements of the Texas Tort Claims 

Act. See Tex. Civ. Prac. & Rem. Code § 101.101(a). She also asserts the City had 

actual notice of her claim. See id. § 101.101(c). Whether a governmental unit has 

actual notice is a question of fact, but actual notice may be determined as a matter 

of law when the evidence is insufficient to raise a fact issue. See Estate of 

Arancibia, 324 S.W.3d at 549.

A. Evidence Offered on Notice Requirements

In support of its plea, the City attached an affidavit from the City Secretary 

averring that McGowen did not provide the City formal notice. The City also 

attached authenticated copies of the Police Department accident report and internal 

reports by the City’s Public Works & Engineering Department. None of the reports 

reflected a passenger in Joel Steadman Smith’s car. None of the reports reflected

that the City was at fault for the accident. The police report reflects that there was a 

6
stop sign on Crane, the street on which Joel Steadman Smith’s vehicle was 

moving. Although the Police Department report reflects Joel Steadman Smith’s 

statement that the City truck “came out of nowhere,” the records reflect that the 

City driver did not receive a traffic citation. The City driver’s supervisor filed a 

Supervisor Investigation Report stating that the “other driver,” Joel Steadman 

Smith, was at fault for the accident and received a citation. 

McGowen filed a verified response to the plea, asserting the City had actual

notice of the claim based on her notification to a City employee. McGowen alleged 

that an ambulance took her to “Memorial Hospital” for treatment. While at the 

hospital, McGowen spoke to “Mary Russell,” who claimed to be a City employee. 

McGowen did not identify the City department for which Russell worked or what 

authority, if any, Russell had to investigate an accident for the City. McGowen 

asserted that she told Russell that she was injured as a result of the City employee’s 

fault. She also claimed that she completed a Driver’s Crash Report on the day of 

the accident (January 14, 2010) and she mailed it to Mary Russell on “January 14, 

2012.”2 McGowen attached a copy of the crash report to her response. In the 

report, she identified the driver of the car in which she was a passenger as 

“Staffone” Smith, not Joel Steadman Smith. She did not identify the other driver. 

The report reflects that the accident occurred at “Crane & Hirsch” in Houston. The 

crash report listed injuries to McGowen’s neck, back, rib cage, and bruises on her 

arm. The report does not reflect that the City is at fault. In the description of the 

incident, the report simply states, “We was coming off Crane and coming across 

and the City truck crash into us. [sic]” This statement does not identify which 

vehicle had the right-of-way. The City is not identified as the City of Houston, 

although the accident site is listed as being in Houston. The instructions on the 

2 McGowen’s reference in her response to mailing the report on January 14, 2012, a date two 

years after the accident, may have been a typographical error. 

7

 
crash report state that the completed form is to be mailed to the Transportation

Department. This crash report is the only evidence attached to McGowen’s 

response.

The City deposed McGowen to investigate her allegations about the City’s 

actual notice. After the deposition, the City filed a reply to McGowen’s response 

and attached excerpts from her deposition.3 These excerpts contradicted 

McGowen’s response to the City’s plea in several respects. For example, 

McGowen testified that a friend, whom she referred to as her godsister, picked her 

up at the accident scene and drove her to the hospital, contrary to the allegation in 

her response that she was taken to the hospital by ambulance. The hospital was 

more fully identified as Memorial Hermann Northwest. McGowen could not 

provide the godsister’s full name, address, or phone number. McGowen admitted 

that the driver’s crash report was actually completed by her godsister the day after 

the accident. She also acknowledged that in the crash report, the driver of the 

vehicle in which she was a passenger is identified as “Staffone,” whom she said is 

actually Steadman. She also acknowledged her report did not identify the same 

cross-street of the intersection where the crash occurred that is reflected on the 

3 These deposition excerpts include McGowen’s testimony that:

1) a friend McGowen could not fully identify drove by right after the accident and 

took her to the hospital;

2) McGowen did not wait to talk to the police;

3) McGowen arrived at the emergency room between noon and 1:00 p.m.;

4) Mary Russell walked up while McGowen was discussing the accident at the 

hospital;

5) McGowen had no idea what position, title, or authority Russell held with the 

City;

6) McGowen did not give Russell her full name or her address, she did not tell 

Russell all the injuries she allegedly had suffered, and she did not tell Russell she 

thought the City was at fault;

7) McGowen’s friend obtained the driver’s crash report form the day after the 

accident and filled it out for McGowen; and

8) McGowen sent the driver’s crash report to the Transportation Department, not 

to the City. 

8

 
reports of the City driver and Police Department.

4 McGowen acknowledged 

sending the driver’s crash report to Transportation Department, not to Mary 

Russell, as she had claimed in her response to the City’s plea. 

During her deposition, McGowen was unable to provide any additional 

information about Mary Russell, nor could McGowen identify Russell’s position or 

title. McGowen testified at her deposition that Russell walked up while McGowen 

was talking to the nurses in the emergency room and identified herself as a City 

employee. McGowen admitted she spoke to no one else from the City. 

In addition to these deposition excerpts, the City included with its 

supplemental plea a sworn record from Memorial Hermann Northwest showing 

that McGowen went to the emergency room on January 21, 2010, a week after the 

accident, instead of the day of the accident (January 14, 2010) as she had claimed. 

B. Lack of a Fact Issue on Notice

To overcome the City’s plea to the jurisdiction, McGowen was required to 

produce evidence raising a fact question as to whether she provided formal written 

notice to the City or as to whether the City had actual notice. See Miranda, 133 

S.W.3d at 228.

1. Formal Notice

On appeal, McGowen asserts she provided formal notice to the City by 

sending the driver’s crash report to the Transportation Department.5 She does not 

dispute the City’s evidence that notice was not provided to the City Secretary, as is 

required. See Houston, Tex., Rev. Ordinances Ch. 2, art. IV, § 2-74 (1994). The 

City Charter requires a claimant to provide a “duly verified” notice that includes, 

4 McGowen stated on the driver’s crash report that the accident occurred at “Crane & Hirsch.” 

The Police Department accident report identified the cross streets as Crane and Boyles. The 

City’s driver identified the road where the accident occurred as Boyles.

9

 
among other things, the amount for which the claimant will settle the claim, the 

actual residence of the claimant for six months before the accident, and the names 

and addresses of witnesses. Houston, Tex., City Charter art. IX, § 11 (1913). 

McGowen’s unverified driver’s crash report sent to the Transportation Department 

did not provide this required information. Therefore, the evidence does not raise a 

fact question as to whether McGowen provided formal notice to the City.

2. Actual Notice

Actual notice requires evidence the City had knowledge of McGowen’s 

injuries, subjective awareness of its alleged fault in causing the injuries, and the 

identities of the parties involved. See Simons, 140 S.W.3d at 347; Cathey, 900 

S.W.2d at 341.

In her appellate brief, McGowen concedes, based on her deposition 

testimony, that her conversation with Russell at the hospital did not establish actual 

notice. McGowen acknowledged during her deposition that she did not tell Russell 

her full name and address, claim that the City was at fault in the accident, or 

identify either of the drivers involved in the accident. We conclude that the 

evidence regarding McGowen’s conversation with Russell at the hospital does not 

raise a fact issue as to whether the City had actual notice.

Our review of the other evidence related to the City’s actual notice of 

McGowen’s claim reflects the following: Both the Police Department and the 

City’s Department of Public Works investigated the accident. In support of its plea, 

the City provided sworn copies of the Police Department accident report and the 

internal reports by the Public Works Department. The Police Department report 

names the drivers of each vehicle, but it does not reflect that either vehicle had a 

passenger. The Public Works Department reports also do not reflect a passenger in 

the car driven by Joel Steadman Smith. The Police Department and Public Works 

10
accident reports do not mention McGowen, much less state that she was injured. 

Thus, even if these reports could be construed as providing notice to the City about 

the accident, they are silent about any injuries to McGowen.

Accident reports are often insufficient to provide actual notice under the Tort 

Claims Act. See Carbajal, 324 S.W.3d at 538–39 (holding a police report did not 

provide the city with actual notice of a motorist’s claim and dismissing the suit for 

lack of jurisdiction); Rojas v. Cnty. of El Paso, 408 S.W.3d 535, 541–42 (Tex. 

App.—El Paso. 2013, no pet.) (concluding the Texas Tort Claims Act’s notice 

requirements were not met even though the accident report contained certain 

information required of formal written notice because there was no evidence of the 

County’s subjective awareness that it was at fault for appellants’ injuries); City of 

San Antonio v. Herrera, No. 04-13-00304-CV, 2013 WL 5653311 (Tex. App.—

San Antonio Oct. 16, 2013, pet. filed) (mem. op.) (concluding police reports failed 

to raise a fact issue as to whether the City had knowledge of its alleged fault in 

producing or contributing to the plaintiff’s injury). Merely investigating an 

accident also does not provide a governmental unit with subjective awareness of its 

fault. Simons, 140 S.W.3d at 347–48.

In Carbajal, the Supreme Court of Texas concluded that the police officer’s 

report “was at most an initial response to the accident,” explaining that “[s]imply 

put, the police report here is no more than a routine safety investigation, which is 

insufficient to provide actual notice.” 324 S.W.3d at 537, 539. Because the report 

in Carbajal did not state that the City was at fault, and other entities could have 

been responsible for the alleged negligence, the high court concluded that the 

governmental unit lacked actual notice. Id. at 539; cf. Ortiz-Guevara v. City of 

Houston, No 14-13-00384-CV, 2014 WL 1618371, at *2–4 (Tex. App.—Houston 

[14th Dist.] Apr. 22, 2014, no pet. h.) (mem. op.) (finding police report raised a 

fact question on the City’s actual notice because it assigned fault to the City police 

11
officer involved in the accident)., There is no evidence in the investigative reports 

raising a fact question as to the City’s subjective awareness of its alleged fault. The 

Police Department report does not assign fault for the accident and one of the 

Public Works Department reports states that the accident was the fault of the other 

driver, Joel Steadman Smith. Thus, the reports from the investigations by the 

Police Department and the Public Works Department do not provide actual notice 

to the City.

McGowen argues on appeal that the driver’s crash report sent to the 

Transportation Department provided actual notice to the City. There is no evidence 

that the Transportation Department provided the report to the City or notified it in 

any way. Notice to one governmental unit does not impute notice to another 

governmental unit. Reese v. Tex. State Dep’t of Highways, 831 S.W.2d 529, 530 

(Tex. App.—Tyler 1992, writ denied) (rejecting contention that police report filed 

with Texas Department of Transportation imputed actual notice under the Texas 

Tort Claims Act to the Texas State Department of Highways and Public 

Transportation).

McGowen argues she is entitled to rely upon the Transportation 

Department’s Crash Records Information System. See 43 Tex. Admin. Code § 

25.971 (stating the Transportation Department shall be the official repository for 

accident reports). She argues that the City’s police department uses the 

Transportation Department’s database, and police officers are required to send 

their reports to the Transportation Department. See id. § 25.977. A driver involved 

in an accident that is not investigated by law enforcement also may complete a 

driver’s crash report and submit it to the Transportation Department. See id. § 

25.976. McGowen contends that because the Transportation Department’s 

database is the repository for accident information, it is for the benefit of 

investigators, and an investigator such as the City Public Works Department 

12
supervisor, Howard Smith, could have obtained a copy of the report from the 

Transportation Department. See Tex. Transp. Code § 550.065 (setting out 

procedures to obtain copies of accident reports). There is no evidence that the 

supervisor had been notified that McGowen was a passenger in the vehicle driven 

by Joel Steadman Smith so that he would have a reason to request a copy of 

McGowen’s report. The reports prepared by the Police Department and the City’s 

Public Works Department do not mention McGowen.

Notice can be imputed to the City by an agent or representative who has a 

duty to gather facts and investigate. Texas Tech Univ. Health Sci. Ctr. v. Lucero, 

234 S.W.3d 158, 163, 168 (Tex. App.—El Paso 2007, pet. denied); City of 

Houston v. Daniels, 66 S.W.3d 420, 424 (Tex. App.—Houston [14th Dist.] 2001, 

no pet.). McGowen has not cited any authority supporting the proposition that a 

report filed with the Transportation Department imputes notice to the City or 

another department, however. She cites a case from the Fourth Court of Appeals 

stating “a governmental entity cannot put on metaphorical blinders and designate 

only one person in its entire organization through whom actual notice may be 

imputed when the facts support that there are other representatives who have a duty 

to gather facts and investigate on behalf of the governmental entity.” Univ. of Tex. 

Health Sci. Ctr. at San Antonio v. Stevens, 330 S.W.3d 335, 339-40 (Tex. App.—

San Antonio 2010, no pet.). In Stevens, a medical malpractice case, the court found 

a fact issue on actual notice because the resident’s anesthesia error was reported to 

the program director, who investigated the incident. Id. at 339–41. McGowen’s 

injuries and allegations that the City was at fault were not reported to a City 

employee with a duty to investigate. Stevens does not support McGowen’s 

position. 

McGowen also cites City of Wichita Falls v. Jenkins, 307 S.W.3d 854 (Tex. 

App.—Fort Worth 2010, pet. denied). Jenkins is also inapposite because the 

13
Jenkins court held that the city clerk was actually provided timely formal notice of 

the claim in that case. Id. at 858–61. Therefore, the Jenkins court’s statements 

regarding actual notice are not necessary to the disposition of the appeal and are 

obiter dicta. See id. McGowen cites Jenkins for the proposition that actual notice 

includes notice “to the extent that a prudent entity could ascertain its potential 

liability stemming from an incident, either by conducting further investigation or 

because of its obvious role in contributing to the incident.” Id. at 858. But, we may 

not follow this legal standard because it has been disapproved by the Supreme 

Court of Texas. See Simons, 140 S.W.3d at 346–48. 

Moreover, the driver’s crash report failed to provide enough information for 

the City to conduct a meaningful investigation and it is insufficient to establish the 

City’s subjective awareness of its alleged fault. The report does not identify the 

City employee driving the truck, it misnamed the driver of the vehicle in which 

McGowen was a passenger, and it lists a different street location for the accident 

than is reflected on the other reports. Nothing in the report directly assigns fault. 

McGowen alleged the City truck crashed into the vehicle in which she was a 

passenger, but she did not state which vehicle had the right-of-way or that the City 

was at fault. We conclude that the driver’s crash report is insufficient to raise a fact 

question on actual notice to the City. 

The City also did not have actual notice of McGowen’s claim by virtue of 

the presence of its police officer at the scene after the accident. While the police 

officer may have had knowledge that a City employee was involved in the 

accident, there is no evidence to show that the police officer had any knowledge 

about McGowen’s presence in the vehicle, her alleged injuries, or the City’s 

alleged fault in causing those injuries. See City of Houston v. Atkins, No. 14-10-

01265-CV, 2011 WL 1744207, at *3 (Tex. App.—Houston [14th Dist.] May 5, 

2011, no pet.) (mem. op.) (holding the evidence failed to present a jurisdictional 

14
fact issue regarding actual notice even though City employees were present at the 

scene of the accident).

In Atkins, two Metropolitan Transit Authority bus passengers sued for 

injuries they alleged were sustained as a result of a single vehicle accident that 

occurred when the bus driver took evasive action to avoid hitting an exposed and 

broken metal drainage grate protruding into her lane of traffic. Id. at *1. When the 

City was added to the suit, it filed a plea to the jurisdiction alleging lack of notice. 

Id. Of the four reports cited as evidence of actual notice in response to the City’s 

plea, only one report named one of the two individual plaintiffs. Id. at *3. No 

evidence showed that the City received the report. Id. An affidavit was provided to 

show City Public Works Department workers were attending the grate after the 

accident and Emergency Medical Services was present at the scene. Id. This court 

held that the evidence presented no jurisdictional fact issue regarding actual notice, 

rejecting an attempt to “cobble” inferences that the City may have known its grate 

was a cause of the accident and someone may have been injured in the accident. Id. 

McGowen argues that this case does not require a similar “cobbling” of inferences. 

We disagree. As in Atkins, the Police Department and Department of Public Works 

reports do not name McGowen. Only her own driver’s crash report states that she 

was injured as a result of the accident. To support a claim that McGowen’s report 

constitutes actual notice requires piecing together the incomplete information on 

her report, which was not provided to the City, with information in the other 

reports and inferring that because the accident reports reflected the same incident 

date, the City had notice. This “cobbling” of inferences is insufficient to raise a 

fact question on actual notice.

Under the applicable standard of review, we conclude that the evidence does 

not raise a fact question as to whether the City had actual notice of McGowen’s 

claim. McGowen has not provided evidence that the City knew she was a 

15
passenger in the vehicle involved in the accident with its employee, knew of her 

alleged injuries, or that the City had actual subjective awareness of its alleged fault. 

Lack of notice is an incurable jurisdictional defect. Accordingly, we sustain the 

City’s sole issue.

Having sustained the City’s issue, we reverse the trial court’s order denying 

the City’s plea to the jurisdiction and render judgment dismissing McGowen’s 

claims against the City for lack of subject-matter jurisdiction.

/s/ Kem Thompson Frost

Chief Justice

Panel consists of Chief Justice Frost and Justices Jamison and Wise.

16