CITY OF SAN ANTONIO, Appellant v. Roxana TENORIO, Individually and on Behalf of Pedro Tenorio, Deceased, Appellee

No. 04-15-00259-CV

Court of Appeals of Texas, San Antonio.

Delivered and Filed: January 27, 2016

Dan Pozza, Pozza & Whyte, PLLC, San Antonio, TX, Michael David Siemer, City of San Antonio City Attorney, San Antonio, TX, for Appellant Attorney.

Joe Brad Brock, Law Office of Joe Brad Brock, Corpus Christi, TX, for Appellee Attorney.

Sitting: Sandee Bryan Marion, Chief Justice, Rebeca C. Martinez, Justice, Jason Pulliam, Justice

Opinion by: Rebeca C. Martinez, Justice

The City of San Antonio appeals from an interlocutory order denying its plea to the jurisdiction. Because we believe a fact issue exists as to whether the City received actual notice of the plaintiff's claims against it, we affirm the trial court's order and remand for further proceedings.

**BACKGROUND**

On September 21, 2012, officers from the San Antonio Police Department (SAPD) responded to a home invasion. The suspect, Benito Garza, fled the scene in a car and was pursued by SAPD at a high rate of speed. The chase was suspended when Garza entered the exit ramp of Interstate Loop 410 traveling the wrong direction into oncoming traffic. *See* *Garza v. State,* No. 04-14-00682-CR, 2015 WL 4643738, at *1 (Tex.App.-San Antonio Aug. 5, 2015, no pet.) (mem. op., not designated for publication). Approximately one minute after he entered the freeway, *634Garza ran head-on into a motorcycle carrying Pedro and Roxana Tenorio. Pedro was killed on impact and Roxana was severely injured.

Roxana Tenorio, individually and on behalf of Pedro, brought suit against the City under the Texas Tort Claims Act, alleging the SAPD officers were negligent in initiating and continuing the high speed chase and in failing to terminate the high speed chase. The City filed a plea to the jurisdiction in which it asserted that Tenorio failed to provide the requisite notice of her claims within six months as required by section 101.101(a) of the Texas Civil Practice and Remedies Code or within ninety days as required under Article XII, Section 150 of the City of San Antonio Charter. In response, Tenorio did not deny that she had not provided formal notice, but instead argued that the City had actual notice of her claims as a result of the Texas Peace Officer's Crash Report prepared by SAPD after the accident; a number of written witness statements; and the SAPD Incident Report.

After a hearing, the trial court denied the City's plea to the jurisdiction, and the City pursued this interlocutory appeal.

**STANDARD OF REVIEW**

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). The purpose of a plea to the jurisdiction is not to force the plaintiff to preview her case, but to establish a reason why the merits of the plaintiff's claim should never be reached. *Bland Indep. Sch. Dist. v. Blue,* 34 S.W.3d 547, 554 (Tex. 2000). We review the trial court's ruling on a plea to the jurisdiction under a de novo standard of review. *Carbajal,* 324 S.W.3d at 538.

When a plea to the jurisdiction challenges the existence of jurisdictional facts, the trial court must review the relevant evidence to determine whether a fact issue exists. *The Univ. of Tex. at Austin v. Hayes,* 327 S.W.3d 113, 116 (Tex. 2010) (per curiam). The plaintiff bears the burden to allege facts demonstrating jurisdiction, and the trial court construes the pleadings liberally in the plaintiff's favor. *Id.* If the evidence raises a fact question on jurisdiction, the trial court cannot grant the plea, and the issue must be resolved by the trier of fact. *Id.* On the other hand, if the evidence is undisputed or fails to raise a fact question, the trial court must rule on the plea as a matter of law. *Id.* Just as we would in a summary judgment context, when considering this evidence, we "take as true all evidence favorable to the nonmovant" and "indulge every reasonable inference and resolve any doubts in the nonmovant's favor." *City of Waco v. Kirwan,* 298 S.W.3d 618, 622 (Tex. 2009) (citing *Tex. Dep't of Parks & Wildlife v. Miranda,* 133 S.W.3d 217, 228 (Tex. 2004) ).

**DISCUSSION**

"Absent a valid statutory or constitutional waiver, trial courts lack subject-matter jurisdiction to adjudicate lawsuits against municipalities." *Suarez v. City of Texas City,* 465 S.W.3d 623, 631-32 (Tex. 2015) (citing *City of Watauga v. Gordon,* 434 S.W.3d 586, 589 (Tex. 2014) ; *Miranda,* 133 S.W.3d at224 ; *Tex. Dep't of Transp. v. Jones,* 8 S.W.3d 636, 638 (Tex. 1999) ). Under the Texas Tort Claims Act (TTCA), the legislature has clearly and unambiguously waived governmental immunity from liability and from suit for certain tort claims arising out of its governmental functions, as specified in the statute. TEX. CIV. PRAC. & REM. CODE ANN. §§ 101.021 -.029 (West 2011 & Supp. 2015). As a prerequisite to bringing suit against a governmental unit under the TTCA, a claimant is required to abide by the notice *635requirements set out in section 101.101 of the Texas Civil Practice and Remedies Code. *Id.* § 101.101 (West 2011). "[T]he purpose of the notice requirement in section 101.101 is 'to ensure prompt reporting of claims in order to enable governmental units to gather information necessary to guard against unfounded claims, settle claims, and prepare for trial.' " *Univ. of Tex. Sw. Med. Ctr. at Dallas v. Loutzenhiser,* 140 S.W.3d 351, 360 (Tex. 2004) (quoting *Cathey v. Booth,* 900 S.W.2d 339, 341 (Tex. 1995) (per curiam)). The failure to comply with the notice requirements deprives the trial court of jurisdiction. TEX. GOV'T CODE ANN. § 311.034 (West 2013).

Section 101.101 of the TTCA provides in pertinent part:

> (a) A governmental unit is entitled to receive notice of a claim against it under this chapter not later than six months after the day that the incident giving rise to the claim occurred. The notice must reasonably describe:

> (1) the damage or injury claimed;

> (2) the time and place of the incident; and

> (3) the incident.

> (b) A city's charter and ordinance provisions requiring notice within a charter period permitted by law are ratified and approved.1

> (c) The notice requirements provided or ratified and approved by Subsections (a) and (b) do not apply if the governmental unit has actual notice that death has occurred, that the claimant has received some injury, or that the claimant's property has been damaged.

TEX. CIV. PRAC. & REM. CODE ANN. § 101.101.

It is undisputed that Tenorio failed to provide the City with formal, written notice of her claims against it pursuant to either subsection (a) or (b). *See* *id.* § 101.101(a), (b). Tenorio asserts, however, that the City received actual notice of her claims. *See* *id.* § 101.101(c). In *Cathey,* the Texas Supreme Court explained that a governmental unit has actual notice of a claim when it has "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." *Cathey,* 900 S.W.2d at 341. In *Simons,* the court subsequently clarified its interpretation of the "knowledge of alleged fault" requirement for actual notice:

> 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). That includes *subjective awareness of its fault, as ultimately alleged by the claimant, in producing or contributing to the claimed injury* .... It is not enough that a governmental unit should have investigated an incident as a prudent person would have, or that it did investigate, perhaps as part of routine safety procedures, or that it should have known from the investigation it conducted that it might have been at fault. If a governmental unit is not subjectively aware of its fault, it does not have the same incentive to gather information that the statute is designed to provide, even when it would not be unreasonable to believe that the governmental unit was at fault.

*Tex. Dep't of Criminal Justice v. Simons,* 140 S.W.3d 338, 347-48 (Tex. 2004) (emphasis *636added). In enacting subsection (c), the Legislature chose to provide an alternative method of providing notice, even though this makes determining compliance with section 101.101"somewhat less certain." *Id.*at 348. Whether a governmental unit has actual notice is a fact question when the evidence is disputed, but may be determined as a matter of law where the evidence is insufficient to raise a fact issue. *Univ. of Tex. Sw. Med. Ctr. at Dallas v. Estate of Arancibia,* 324 S.W.3d 544, 549 (Tex. 2010) ; *Simons,* 140 S.W.3d at 348. "Fault, as it pertains to actual notice, is not synonymous with liability; rather, it implies responsibility for the injury claimed." *Estate of Arancibia,* 324 S.W.3d at 550.

The City contends the mere fact that SAPD investigated the accident is insufficient to provide the City with actual notice. The Texas Supreme Court made clear in *City of Dallas v. Carbajal* that investigation alone will not put a governmental entity on notice that it may be sued. 324 S.W.3d at 538-39. The court, however, "did not establish a bright-line rule stating that a routine safety investigation will never provide a governmental unit with actual notice of its fault." *Ortiz-Guevara v. City of Houston,* No. 14-13-00384-CV, 2014 WL 1618371, at *3 (Tex.App.-Houston [14th Dist.] Apr. 22, 2014, no pet.) (mem.op.). Rather, the court held that the evidence was lacking in that case because the police report did not say who failed to erect or maintain the barricades at issue,2 and therefore the report failed to provide the City "with subjective awareness of fault because [the report] did not even imply, let alone expressly state, that the City was at fault." *Carbajal,* 324 S.W.3d at 539. Thus, we must consider the evidence in the record before us in the light most favorable to Tenorio to determine what facts the investigation performed in this case revealed to the City.

Among the evidence attached to the City's plea to the jurisdiction was (1) the Texas Peace Officer's Crash Report; (2) the written statements of ten witnesses and police officers; and (3) the SAPD Offense Report concerning the accident. Tenorio attached the following evidence to her amended response to the plea to the jurisdiction: (1) San Antonio Police Department Procedures; (2) SAPD Pursuit Evaluation Report; and (3) the deposition of SAPD Deputy Chief Roy Waldheim. The City argues that none of the evidence in the record alleges that the City, or any employee of the City, caused the accident, was at fault, did anything wrong, or was in any way culpable, and thus, the City did not have actual notice of Tenorio's claims. We must be careful, however, not to overstate the plaintiff's burden at this juncture. The determination to be made at this preliminary stage of the proceedings is not whether there is evidence in the record showing that SAPD negligently initiated the pursuit or negligently failed to terminate the pursuit, but rather, whether there is evidence raising a fact issue as to whether SAPD was subjectively aware that it played a role in producing *or contributing to* Roxana's and Pedro's injuries. *See* *Simons,* 140 S.W.3d at 347-48. Applying this standard, we conclude the evidence in this case raises a fact issue as to whether the City was subjectively aware of its responsibility, *as alleged by Tenorio,* for the injuries suffered by Pedro and Roxana.

The SAPD Pursuit Evaluation Report was prepared on October 3, 2012, thirty-one days after the accident. Included in the report is the Texas Peace Officer's Crash Report. The report is dated September *63721, 2012, the same date as the accident. Box No. 36 of the crash report is titled "Contributing Factors (Investigator's Opinion)." The investigating officer opined that a factor and condition "contributing" to the crash was Garza's "Fleeing or Evading Police." Absent this finding in the report, the case before us might be similar to *Muniz v. Cameron Cnty.,* No. 13-10-00689-CV, 2012 WL 1656326 (Tex.App.-Corpus Christi May 10, 2012, pet. denied) (mem.op.). In *Muniz,* a police officer was pursuing a pickup truck traveling at a high rate of speed when the truck veered into oncoming traffic and struck another vehicle, killing the occupant. *Id.* at *1. In the police report, the investigating officer determined that the driver of the pickup truck-who was driving under the influence of multiple drugs at the time of the accident-was solely responsible for the accident and consequently, the death of the occupant of the vehicle. *Id.* at *2. The family of the deceased filed a lawsuit against the County alleging that the deputy initiated and continued a reckless, high-speed pursuit and caused the collision by bumping the pickup truck into oncoming traffic. *Id.* In response, the County filed a plea to the jurisdiction asserting that it had not been provided with the requisite notice under section 101.101(c). *Id.* The Thirteenth Court of Appeals affirmed the trial court's granting of the plea to the jurisdiction, holding that nothing in the police report or dispatch log suggested that the deputy caused the collision as alleged, and thus the County was not placed on notice that appellants would seek to hold it responsible for the fatal collision. *Id.* at *6.

Unlike *Muniz,* we are presented with a police report that specifically notes that Garza's fleeing or evading police was a factor contributing to the fatal collision. It stands to reason that there can be no fleeing or evading without pursuit or chase by the police. Hence, the evidence indicates that SAPD's active pursuit was a factor contributing to Garza's entering the freeway in the wrong direction and his head-on collision with the Tenorios within a minute of entering the freeway. The crash report need not indicate that SAPD acted unreasonably, but must only provide a "subjective signal" to the City within the 90-day period required by the City's charter "that there might be a claim, even if unfounded, at issue." *Univ. of Tex. Health Sci. Ctr. at Houston v. McQueen,* 431 S.W.3d 750, 761 (Tex.App.-Houston [14th Dist.] 2014, no pet.). Subjective awareness of fault is not implied anytime there is a high speed pursuit that results in an accident. We hold only that the crash report in this record specifically indicating that "Fleeing or Evading Police" was a factor contributing to the accident raises a fact issue as to whether the City was aware of its role in contributing to the claimed injuries.

As noted earlier, the purpose of the notice requirement is to enable governmental units to investigate and address potential claims appropriately, and that purpose is satisfied by the City's knowledge that police evasion contributed to the collision at issue. *See* *Estate of Arancibia,* 324 S.W.3d at 550. Section 101.101 does not require an "unqualified confession of fault." *Id.* Nor does it require complete and exclusive liability. *Ortiz-Guevara,* 2014 WL 1618371, at *4. Here, the crash report includes information about (1) the time, date, place, and circumstances of the accident; (2) the fact that Garza entered the freeway driving the wrong direction in response to police pursuit, and the accident occurred one minute after Garza entered the freeway in response to police pursuit; and (3) the identity of the parties, and the fact that Pedro was killed and *638Roxana was severely injured. Viewing the evidence in the light most favorable to Tenorio, as we must, we conclude the investigating officer's listing of "Fleeing or Evading Police" as a factor contributing to the accident in her report raises a fact issue as to whether the City had subjective awareness of its fault, as alleged by Tenorio, in contributing to the claimed injuries. Given that a fact issue exists regarding whether the City received actual notice of Tenorio's claims against it, the trial court did not err in denying the City's plea to the jurisdiction. *See* *Simons,* 140 S.W.3d at348 ; *Miranda,* 133 S.W.3d at 228. Accordingly, we affirm the trial court's order denying the City's plea to the jurisdiction and remand for further proceedings.

Dissenting Opinion by: Jason Pulliam, Justice

Article XII, Section 150 of the City of San Antonio Charter requires that notice of an injury be provided to the city manager or city clerk in writing within ninety days after the injury has been sustained.

It was later determined that the Texas Department of Transportation, not the City, was at fault in failing to erect or maintain the barricades. *Carbajal,* 324 S.W.3d at 539.

Jason Pulliam, Justice, dissenting.

Review of the undisputed facts in this case reveals there cannot be an issue of fact with regard to whether the City of San Antonio received actual notice of Ms. Tenorio's claims against it. Under the undisputed facts presented, I would hold there is no fact issue whether the City of San Antonio was subjectively aware of its potential fault in causing the accident from which Ms. Tenorio asserts her injuries and damages arose. In fact, the undisputed facts and evidence conclusively establish the City of San Antonio was not subjectively aware of its potential fault in causing the subject accident. For this reason, the trial court lacks jurisdiction, and therefore, the trial court erred by denying the City of San Antonio's plea to the jurisdiction. Because the majority opinion concludes there is a fact issue regarding the City of San Antonio's receipt of actual notice, I must respectfully dissent.

**STANDARD OF REVIEW**

A plea to the jurisdiction is a dilatory plea which challenges a trial court's authority to determine the subject matter of an asserted cause of action without defeating the merits of the case. *Bland Indep. Sch. Dist. v. Blue,* 34 S.W.3d 547, 554 (Tex. 2000). Appellate review of atrial court's ruling on a jurisdictional plea is conducted in a two-step sequential analysis. *Tex. Dep't of Parks and Wildlife v. Miranda,* 133 S.W.3d 217, 226-28 (Tex. 2004). First, the issue whether the nonmovant alleged facts sufficient to affirmatively demonstrate subject-matter jurisdiction is a question of law reviewed *de novo.* *Miranda,* 133 S.W.3d at 226. For this reason, appellate review begins with the non-movant's pleadings to determine if the alleged facts affirmatively demonstrate the trial court's jurisdiction to hear the cause. *See id.* If the facts as pled are sufficient to demonstrate jurisdiction, then any remaining jurisdictional challenge is to the existence of jurisdictional facts. In this second step, the court may consider facts and evidence even if they pertain to the substantive merits, but must confine such consideration only to those facts that are relevant to the jurisdictional issues raised. *Id.* (confirming the court's holding in *Bland Indep. Sch. Dist.,* 34 S.W.3d at555 ).

Then, in a case in which the jurisdictional challenge implicates the merits of the plaintiffs' cause of action, and the plea to the jurisdiction includes evidence, the trial court reviews the relevant evidence to determine if a fact issue exists, limited to the jurisdictional challenge. *Miranda,* 133 S.W.3d at 227. Even though the facts pertaining to the merits of the case and subject matter jurisdiction may be intertwined, the court must not determine the case merits. *Id.*at 227-28. If examination of the evidence relevant to jurisdiction reveals a fact issue with regard to jurisdiction *639exists, then the plea must be denied and the issue pertaining to jurisdiction must be resolved by the fact finder. *Id.* ; *see also* *Univ. of Tex. Health Sci. Ctr. at San Antonio v. Stevens,* 330 S.W.3d 335, 338 (Tex.App.-San Antonio 2010, no pet.).

Likewise, if the facts or evidence relevant to jurisdiction are undisputed or fail to raise a fact question on the jurisdictional issue, the trial court must rule on the plea to the jurisdiction as a matter of law even if the facts or evidence pertain to the substantive merits of the case. *Miranda,* 133 S.W.3d at 228. In this event, the court may delve into facts and evidence pertaining to the substantive merits because such is undisputed. *Id.* Determination whether a trial court holds jurisdiction based upon undisputed fact or evidence is reviewed *de novo. Id.*

**ANALYSIS**

In the first step of the jurisdictional analysis, Ms. Tenorio plead the City of San Antonio had actual notice of the claims asserted and no exception of the waiver of immunity applies. Therefore, Ms. Tenorio plead sufficient facts to affirmatively demonstrate subject-matter jurisdiction. Thus, jurisdictional analysis proceeds to the second step, in which the jurisdictional challenge is to the existence of jurisdictional facts.*See* *Miranda,* 133 S.W.3d at 227-28.

In this second step, the jurisdictional dispute pertains to the issue of the City of San Antonio's actual notice of its alleged fault in producing or contributing to the claimed injury. While determination whether the City of San Antonio received actual notice is a question of fact, this issue may be determined as a matter of law if the evidence is insufficient to raise a fact issue or if the undisputed facts or evidence conclusively shows the City of San Antonio was not subjectively aware of its alleged fault. *See id.* ; *Univ. of Texas Sw. Med. Ctr. at Dallas v. Estate of Arancibia ex rel. Vasquez-Arancibia,* 324 S.W.3d 544, 549 (Tex. 2010) ; *City of Pharr v. Aguillon,* No. 13-09-00011-CV, 2010 WL 1138449, at *4 (Tex.App.-Corpus Christi, Mar. 25, 2010, no pet.).

With regard to the facts pertaining to the City of San Antonio's actual notice, it is undisputed that Ms. Tenorio failed to provide statutory notice to the City of San Antonio of her intent to file suit. For this reason, to overcome the City of San Antonio's assertion of governmental immunity, and thus, invoke the trial court's jurisdiction over her claims, Ms. Tenorio was required to prove the City of San Antonio had actual notice of its potential fault in producing or contributing to the subject accident. *See* *City of Dallas v. Carbajal,* 324 S.W.3d at 537, 539 (Tex. 2010) ; *Tex. Dep't of Criminal Justice v. Simons,* 140 S.W.3d 338, 347-48 (Tex. 2004) ; *Cathey v. Booth,* 900 S.W.2d 339, 341 (Tex. 1995). As explained in the majority opinion, to prove the City of San Antonio had actual notice of her claims, Ms. Tenorio must show the City of San Antonio had "subjective awareness of its fault ... in producing or contributing to the claimed injury." *See* *Simons,* 140 S.W.3d at 347. Pertinent to this analysis, when records or investigative reports give no indication that a governmental unit is at fault in an incident, the governmental unit has no actual notice, that is, it is not subjectively aware of its alleged fault. *See* *id.*at 347-48. As explained in the precedential line of Texas Supreme Court cases *Cathey, Simons* and *Carbajal,* a governmental unit cannot acquire actual notice even by obtaining information that would reasonably suggest its culpability. *See* *Carbajal,* 324 S.W.3d at539 ; *Simons,* 140 S.W.3d at345 ; *Cathey,* 900 S.W.2d at 341. Instead, to raise a fact issue with regard to the governmental *640unit's subjective awareness of its potential fault in causing the accident, the evidence must at least imply or provide some indication of fault. *See* *Carbajal,* 324 S.W.3d at539 ; *Simons,* 140 S.W.3d at345 ; *Cathey,* 900 S.W.2d at 341.

Ms. Tenorio contends the City of San Antonio had actual notice of her claims by virtue of (1) the Texas Peace Officer's Crash Report; (2) the written statements of the witnesses; and (3) the SAPD Offense Report concerning the crash in question. Under a *de novo* review, this court must review this evidence to determine if any raises a fact issue with regard to whether the City of San Antonio had subjective awareness of its alleged fault, or if the undisputed facts conclusively show the City of San Antonio was or was not subjectively aware of its alleged fault. *See* *Miranda,* 133 S.W.3d at227-28 ; *Estate of Arancibia,* 324 S.W.3d at 549. While such evidence and this factual dispute may touch upon the substantive merits of the litigation, this court may consider such facts and evidence relevant to the jurisdictional challenge if such facts and evidence are undisputed or fail to raise a fact question with regard to the City of San Antonio's subjective awareness. However, this court must confine such consideration only to those facts that are relevant to the jurisdictional issues raised. *See* *Miranda,* 133 S.W.3d at227-28 ; *Estate of Arancibia,* 324 S.W.3d at 549.

**APPLICATION**

A review of the documents referenced by Ms. Tenorio reveals there is no fact issue with regard to the City of San Antonio's subjective awareness of its alleged fault. None of the documents assert, imply or present a "subjective signal" to the City of San Antonio of its potential fault, as the majority concludes. These documents do present undisputed facts which conclusively show the City of San Antonio was not subjectively aware of its alleged fault in causing the accident.

The Texas Peace Officer's Crash Report did not indicate or infer any police officer actions to be a contributing factor to the cause of the accident or that any police officer did anything wrong or was at fault in any way in causing the accident. Likewise, the SAPD Offense Report does not indicate or infer any police officer actions to be a contributing factor. None of the eight witness statements implicate fault on any police officer. As held in *Carbajal, Simons,* and *Cathey,* to raise a fact issue with regard to the City of San Antonio's subjective awareness of its potential fault in causing the accident, these reports and statements must at least imply or provide some indication of fault, and absent such indication, the City of San Antonio does not have subjective awareness, and thus, there is no actual notice to the City. *See* *Carbajal,* 324 S.W.3d at539 ; *Simons,* 140 S.W.3d at345 ; *Cathey,* 900 S.W.2d at 341.

The turning point upon which the majority bases its conclusion is Box No. 36 of the Texas Peace Officer's Crash Report, labeled "Contributing Factors (Investigator's Opinion)", in which the investigating officer stated, "Fleeing or Evading Police". The majority concludes this statement must implicate fault because "[i]t stands to reason that there can be no fleeing or evading without pursuit or chase by the police." It is at this point that I must differ, as the undisputed facts and the record conclusively establish that the police officers had ceased pursuit of Garza and because established caselaw holds that pursuit alone is insufficient to place the City of San Antonio on actual notice of a potential claim. *See* *Muniz v. Cameron Cnty.,* No. 13-10-00689-CV, 2012 WL 1656326, at *6 (Tex.App.-Corpus Christi May 10, 2012, pet. denied) (mem.op.).

*641Witness Statement identified as "Exhibit B" to the plea to the jurisdiction, states, "[i]t seemed like the cop lights were stopped. Then I saw the light colored car coming toward us in the fast lane." Witness Statement identified as "Exhibit D" states, "As I was driving east, I saw police cars coming towards me with their lights on.... that's when I seen they were chasing a small silver car.... When the silver car got on the highway, by driving the wrong way on the exit ramp, the police cars turned around and took the turn around, so they could go the correct way and keep chasing the silver car." "Exhibit E" witness statement states, "The gold car then entered the 410 south mainlanes using the exit ramp from 410 north. It looked like the cop cars wanted to enter the highway the wrong way too but didn't. We continued northbound on the access road and approached the scene of the accident.... The gold car was the one who caused everything." "Exhibit F" witness statement states, "[t]he police cars chased the small car through the parking lot of the Shell and then the small car exited the parking lot and drove onto the exit ramp of 410 and entered the south bound lanes of 410 but was traveling north bound against traffic. When the car entered the highway, going the wrong way, I observed that the police cars stopped and did not pursue the small car onto the highway." "Exhibit H" witness statement states, "[p]rior to the accident I did not see police cars chasing this vehicle, nor did I see any police vehicles in that lane or on this side of the highway. The only time I saw police officers was after the accident had occurred and that was the officers that had pulled up on the opposite side of the highway...." "Exhibit I" witness statement states, "I didn't see any cop cars chasing the small silver car and only seen them after the accident. I did not see the driver of the small silver vehicle that caused the accident." The statement from Officer Nathan Zachary, one of the officers in pursuit of Garza, states,

> I followed behind him as he cut through the parking lot. The driver then turned left, south, onto a dirt road that runs parallel to the northbound access road of Loop 410. I continued to follow behind him because I thought he was going to drive into the wooded area along Loop 410. I heard Off Reygadas on the police radio saying to back off the vehicle.... The driver entered Loop 410 from the exit ramp traveling the opposite direction of traffic. When the vehicle veered off the dirt road and onto the exit ramp Off Reygadas came on the radio saying to terminate the pursuit. I stopped on the dirt road. When I stopped the pursuit the suspect vehicle was already on Loop 410....

Finally, the statement from Officer Manuel Reygadas, another officer in pursuit of Garza states,

> [w]e continued to travel south bound on the dirt road for a short distance of approximately forty to fifty yards at which time I got on the radio and advised Officer Zachary to back off as I believed that the suspect was going to try to bail out of the vehicle into the wooded area that was near by.... Just after I made this broadcast, the suspect cut across the access road and entered the exit ramp of Pearsall Rd for north bound Loop 410. As the suspect committed himself to traveling the wrong way on 410 I immediately broadcasted repeatedly over the radio for all officers to cancel and terminate.... The suspect after entering the highway traveled approximately 300 feet prior to the first collision occurring."

The San Antonio Police Department Report, written by Officer Joe Carmona, confirmed *642the statements of Officers Zachary and Reygadas and states,

> [O]nce myself and other officers secured the scene, victims, and witnesses [at the scene of the originating crime], I discovered the V3 was killed in the accident that API caused while he was evading the police. API also severely injured V4.... Apparently while API was operating the listed vehicle, he was traveling south bound in the north bound lanes of SW Loop 410. As he was fleeing the police he jumped onto the main lanes and stuck V3 and V4...."

These reports and witness statements consistently and conclusively establish that the police pursuit of Garza had ceased by the time he entered the exit ramp and by the time he struck the motorcycle carrying the Tenorios. Officers Zachary and Reygadas's reports both establish conclusively that the order to terminate the pursuit occurred before Garza drove up the exit ramp and before he entered the highway going the wrong direction. This evidence is undisputed. Therefore, there can be no fact issue with regard to whether the pursuit of Garza implicated the City of San Antonio or should have made the City of San Antonio subjectively aware of its potential fault because the undisputed evidence conclusively establishes the pursuit of Garza had ceased.

Next, the San Antonio Police Report written by Officer Carmona and Officer Zachary's statement conclusively establish that Garza was already in flight from the original scene of an alleged armed burglary when Officer Carmona and Officer Zachary began pursuit. This evidence is undisputed. Because Garza was already in flight when the police pursuit began, his flight or evasion of police pursuit cannot raise a fact issue whether the City of San Antonio was subjectively aware of its potential fault. This undisputed evidence establishes conclusively that the City of San Antonio did not cause Garza to flee.

Finally, Officer Reygadas's report establishes conclusively that he made the order to terminate pursuit based upon safety concerns when Garza entered the exit ramp. This evidence is undisputed and provides indication of Officer Reygadas's perception of the events as they were unfolding and his perception of the potential implication of the officers' action. Officer Reygadas exercised this judgment by commanding all police officers to cease pursuit. Because the police officers acted according to Officer Reygadas's command to terminate the pursuit, the police officers' actions in stopping the pursuit, and instead, taking the turnaround, exemplifies that the police officers acted prudently to ensure the safety of the public and themselves. Thus, the undisputed evidence conclusively establishes the police officers acted with prudence based upon safety concerns, and therefore, do not raise a fact issue whether the City of San Antonio was subjectively aware of its potential fault.

For these reasons, the statement in the Peace Officer's Report that the cause of the accident was Garza's "Fleeing or Evading Police" is not sufficient to raise a fact issue whether the City of San Antonio was subjectively aware of any alleged fault in causing or contributing to the accident. In fact, these statements and the Reports conclusively establish the City of San Antonio was not subjectively aware of its potential fault.1

*643Aside from this conclusive undisputed evidence, this court cannot conclude a fact issue exists with regard to subjective awareness based upon police pursuit, alone. *See* *Muniz v. Cameron Cnty.* , 2012 WL 1656326, at *6. Thus, as a matter of law, the majority opinion cannot hold that Garza's flight or evasion of police pursuit was sufficient to raise a fact issue of the City of San Antonio's subjective awareness. *See id.*

Finally, the majority's conclusion in this case, that an indication of flight or evasion of police is sufficient to implicate fault because "[i]t stands to reason that there can be no fleeing or evading without pursuit or chase by the police," results in a bright-line determination that subjective awareness must be implied any time there is a high speed pursuit that results in an accident. This holding promotes a result that is outside the guidelines provided in the *Cathey, Simons,* and *Carbajal* precedential authority because it allows a presumptive conclusion with regard to subjective awareness and goes against the purpose of the statutory notice requirement. *See* *Carbajal,* 324 S.W.3d at539 ; *Simons,* 140 S.W.3d at345 ; *Cathey,* 900 S.W.2d at 341.

**CONCLUSION**

In this case, the record shows conclusively that the City of San Antonio was not subjectively aware of its alleged fault in causing or contributing to the accident from which Ms. Tenorio derives her claims. Therefore, as a matter of law, Ms. Tenorio did not comply with the prerequisite notice requirements of Section 101.101 of the Texas Civil Practice and Remedies Code. *See* TEX. CIV. PRAC. & REM. CODE ANN. § 101.101 (West 2011). Failure to comply with the notice requirements deprives the trial court of jurisdiction. TEX. GOV'T CODE ANN. § 311.034 (West 2013). Following this analysis under the undisputed facts presented, I would reverse the trial court's order denying the City of San Antonio's plea to the jurisdiction and render judgment dismissing the cause for want of subject matter jurisdiction.

While determination of the City of San Antonio's subjective awareness is intertwined with the facts pertaining to the substantive merits of the liability question, this finding does not affirmatively determine the issue of the City of San Antonio's liability or potential negligence. This court's review is limited to determination of the City of San Antonio's subjective awareness. Therefore, this court may review these facts and evidence for this limited purpose and in this limited context, without deciding the substantive merits of the ultimate litigation. *See* *Miranda,* 133 S.W.3d at227-28 ; *Estate of Arancibia,* 324 S.W.3d at 549.