Texas Department of Criminal Justice v. Simons , 2006 Tex. App. LEXIS 6587 ( 2006 )

OPINION

STEVE McKEITHEN, Chief Justice.

Texas Department of Criminal Justice-Institutional Division (“TDCJ”) appeals the trial court’s denial of its plea to the jurisdiction and no-evidence motion for summary judgment. See Tex. Civ. Prac. & Rem.Code Ann. § 51.014(a)(8) (Vernon Supp.2005); Harris Co. v. Sykes, 136 S.W.3d 635, 638 (Tex.2004). We reverse and render.

Background

Appellee Brian Edward Simons sued TDCJ for injuries Simons alleges he sustained during his incarceration.¹ TDCJ filed a plea to the jurisdiction, in which it asserted Simons’s claim is barred because he failed to provide TDCJ with actual or written notice as required by the Texas Tort Claims Act (“TTCA”).² See Tex. Civ. Prac. & Rem.Code Ann. § 101.101 (Vernon 2005).³ The trial court denied TDCJ’s plea to the jurisdiction, and TDCJ appealed. This Court found that TDCJ had actual notice of Simons’s claim and affirmed the trial court’s order. See Tex. Dep’t of Criminal Justice v. Simons, 74 S.W.3d 138, 142 (Tex.App.-Beaumont 2002), rev’d, 140 S.W.3d 338 (Tex.2004).

In its opinion reversing our decision, the Supreme Court held that “actual notice under section 101.101(c) requires that a governmental unit have knowledge of the information it is entitled to be given under section 101.101(a) and a subjective awareness that its fault produced or contributed to the claimed injury.” Simons, 140 S.W.3d at 348. The Supreme Court also found that section 101.101 does not deprive the trial court of subject matter jurisdiction. Id. at 348-49. See also Univ. of Tex. Southwestern Med. Ctr. at Dallas v. Loutzenhiser, 140 S.W.3d 351, 362 (Tex. 2004).

In 2005, the Legislature amended section 311.034 of the Government Code. See Tex. Gov’t Code Ann. § 311.034 (Vernon Supp.2005). The amended version provides as follows:

In order to preserve the legislature’s interest in managing state fiscal matters through the appropriations process, a statute shall not be construed as a waiver of sovereign immunity unless the waiver is effected by clear and unambiguous language. In a statute, the use of “person,” as defined by Section 311.005 to include governmental entities, does not indicate legislative intent to waive sovereign immunity unless the context of the statute indicates no other reasonable construction. Statutory prerequisites to a suit, including the provision of notice, are jurisdictional requirements in all suits against a governmental entity.

Tex. Gov’t Code Ann. § 311.034 (Vernon Supp.2005). The previous version of section 311.034 did not contain the last sentence, which makes statutory prerequisites to a suit jurisdictional. See Act of May 26, 2001, 77th Leg., R.S., ch. 1158, § 8, sec. 311.034, 2001 Tex. Gen. Laws 2570, 2572 (current version at Tex. Gov’t Code Ann. § 311.034 (Vernon Supp.2005)). Although the amended version of section 311.034 became effective on September 1, 2005, the statute is silent regarding whether the amendment is to be applied to suits pending as of its effective date.⁴ See Tex. Gov’t Code Ann. § 311.034 (Vernon Supp.2005).

After the effective date of the statute, TDCJ filed a “plea to the jurisdiction and no evidence motion for summary judgment,” in which it again argued the case should be dismissed for lack of jurisdiction because TDCJ did not receive actual notice of Simons’s claim. The trial court denied TDCJ’s plea to the jurisdiction and no evidence motion for summary judgment, and this case is again before us on interlocutory appeal. See Tex. ,Civ. Prac. & Rem. Code Ann. § 51.014(a)(8).

TDCJ’s Issue Two

In issue two, TDCJ contends section 311.034, as amended, “applies to all pending cases because it is a nonsubstan-tive, procedural statute that affects no vested rights but merely defines the jurisdictional limits of the courts to consider claims against the State.”⁵ See Tex. Gov’t Code Ann. § 311.034. Because this issue pertains to jurisdiction, we address it first.

The Texas Constitution prohibits ex post facto laws. Tex. Const, art. I, § 16. “We generally presume that the Legislature intends an amendment to operate prospectively and not retroactively.” Villasan v. O’Rourke, 166 S.W.3d 752, 765 (Tex.App.-Beaumont 2005, pet. filed) (citing Subaru of Am., Inc. v. David McDavid Nissan, Inc., 84 S.W.3d 212, 219 (Tex. 2002)). The general rule, however, does not apply when the amendment is procedural or remedial. Villasan, 166 S.W.3d at 765. Retroactive application of a statute is only unconstitutional if, when applied, the statute takes away or impairs vested rights acquired under existing law. Id. at 766. Because jurisdictional statutes are procedural and do not affect substantive rights, they generally apply to pending suits. Subaru, 84 S.W.3d at 220; Villasan, 166 S.W.3d at 765.

Since the statutory prerequisites to suit were not jurisdictional before the Legislature amended section 311.034, a governmental entity could not appeal the issue of no statutorily-required notice before the trial court entered a final judgment. See Act of May 26, 2001, 77th Leg., R.S., ch. 1158, § 8, sec. 311.034, 2001 Tex. Gen. Laws 2570, 2572 (current version at Tex. Gov’t Code Ann. § 311.034 (Vernon Supp. 2005)); Tex. Civ. Prac. & Rem.Code Ann. § 51.014(a)(8) (Vernon Supp.2005). The 2005 amendment changes the time at which a governmental entity may appeal, but does not affect vested rights to recover under the prior law. See May 26, 2001, 77th Leg., R.S., ch. 1158, § 8, sec. 311.034, 2001 Tex. Gen. Laws 2570, 2572 (current version at Tex. Gov’t Code Ann. § 311.034 (Vernon Supp.2005)). If a claimant has given the notice required by Tex. Civ. Prac. & Rem.Code Ann. § 101.101, he may have a right to recover under the TTCA, and he may prevail on appeal, whether the appeal is interlocutory or after final judgment. A claimant who has not given either timely written notice or actual notice has no vested right to recover under the TTCA, and the amendment merely enables the governmental entity to appeal the issue before entry of a final judgment rather than after. See Tex. Civ. Prac. & Rem. Code Ann. § 101.101; Tex. Gov’t Code Ann. § 311.034.

We find the amendment is procedural and does not affect vested substantive rights under the prior law. We therefore apply the current version of section 311.034 and find we have jurisdiction over this appeal. See Subaru, 84 S.W.3d at 220; Tex. Gov’t Code Ann. § 311.034; Tex. Civ. Prac. & Rem.Code Ann. § 51.014(a)(8).⁶

TDCJ’s Issue One

In issue one, TDCJ asserts that because it did not have actual notice of Simons’s claim, the case must be dismissed for lack of subject matter jurisdiction. We review the trial court’s jurisdictional ruling de novo. Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex.1998); City of Dayton v. Gates, 126 S.W.3d 288, 289 (Tex.App.-Beaumont 2004, no pet.). The Supreme Court has construed section 101.101(c) to require “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 v. Booth, 900 S.W.2d 339, 341 (Tex.1995); see Tex. Civ. Prac. & Rem.Code Ann. § 101.101(c). The Supreme Court held in this case that “actual notice under section 101.101(c) requires that a governmental unit have knowledge of the information it is entitled to be given under section 101.101(a) and a subjective awareness that its fault produced or contributed to the claimed injury.” Simons, 140 S.W.3d at 348. The Supreme Court further explained as follows:

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.

Id. at 347-48.

Three Courts of Appeals have interpreted the “subjective awareness” standard announced by the Supreme Court in Simons. In Casanover v. Tomball Reg’l Hosp. Auth., No. 01-04-00136-CV, 2006 WL 23407, *1 (Tex.App.-Houston [1st Dist.] Jan. 5, 2006, no pet. h.) (mem.op.), the decedent suffered an injury when leaving the hospital after dialysis treatment, and later died. Appellants’ counsel wrote to the hospital several times requesting medical and billing records. Id. Counsel later wrote a letter to the hospital asserting that the hospital’s employees were negligent in treating the decedent and proximately caused her death. Id. Appellants subsequently sued the hospital, and the hospital filed a motion for summary judgment, in which it asserted it did not receive actual notice or timely written notice of appellants’ claim. Id. In analyzing the issue of actual notice, the First Court of Appeals determined that counsel’s letters did not provide sufficient actual notice to the hospital that its fault allegedly produced or contributed to the claimed injury. Id. at *4. The Court also found that the affidavits of a physician and a nurse, both of whom reviewed the decedent’s records and determined that the nursing care provided to decedent fell below the standard of care, were insufficient to constitute actual notice. Id. The Court held that “[e]ven if the Hospital were aware of the information in its medical records relied upon by [the affiant doctor] and [the affiant nurse] in forming their opinions, we hold that this information failed to adequately convey the Hospital’s subjective awareness that its fault produced or contributed to the claimed injury.” Id.

The First Court of Appeals again addressed the issue of actual notice in Duncan v. City of Houston, No. 01-05-00079-CV, 2006 WL 181399 (Tex.App.-Houston [1st Dist.] Jan. 26, 2006, pet. denied) (mem. op.). In Duncan, appellant sued the City of Houston for personal injuries he sustained after striking a guy wire while riding his bicycle. Id. at *1. In a letter to a Reliant Energy/Houston Lighting & Power Co., appellant described his injuries and alleged that the wire posed a substantial tripping hazard and the installation of the wire was grossly negligent. Id. Without giving written notice to the City of Houston, appellant subsequently filed suit against it. Id. The trial court granted the City’s motion for summary judgment on the issue of lack of notice. Id. at *2. On appeal, appellant contended the City had actual notice of his claim because Reliant was an agent or representative of the City. Id. at *2-*3. The Court of Appeals held that there was no evidence that the City or any of its agents was aware that appellant was injured or that the City’s fault produced or contributed to his injury. Id. at *3.

The Fort Worth Court of Appeals has twice addressed the issue of actual notice since the Supreme Court issued its opinion in Simons. In Sipes v. City of Grapevine, 146 S.W.3d 273, 277 (Tex.App.-Fort Worth 2004, rev’d on other grounds), the appellants, who were injured in an automobile accident, filed suit against the City and other defendants. Appellants contended the pavement markings were confusing and the driver’s vision was obstructed by concrete traffic barricades, barrels, and a “road closed” sign. Id. The City filed a motion for summary judgment, in which it asserted it did not receive the statutorily-required notice. Id. One of the appellants provided the City with written notice, but the other (Trevino) did not. Id. at 284. Trevino contended the City received actual notice of her claims “when the City’s police officers investigated the accident and through the police reports.” Id. The police report contained the time and place of the accident, as well as a description of the accident. Id. However, after noting that the police report did not describe Trevino’s injuries and simply described the road conditions as “obstructed view construction zone[,]” the Court of Appeals determined that as a matter of law, Trevino failed to comply with the TTCA’s notice requirements “because there is no evidence the City had subjective awareness that its fault produced or contributed to Trevino’s injuries.” Id.

The Fort Worth Court of Appeals revisited the actual notice issue in Ortegren v. City of Denton, No. 2-05-177-CV, 2006 WL 495387 (Tex.App.-Fort Worth March 2, 2006, pet. filed) (mem.op.). In Ortegren, the appellants sued the City of Denton for personal injuries and wrongful death resulting from an automobile accident. Id. at *1. A Denton police officer, who was an accident investigator and reconstruetionist, investigated the accident. Id. The officer photographed marks on the pavement and a six-inch drop-off to the right of the paved roadway, and told his supervisor he considered the drop-off a hazard and recommended that it be repaired. Id. The officer did not inform the City’s legal department or risk manager of a potential claim because he did not believe the City was liable. Id. The City did not receive timely written notice of appellants’ claim. Id. The City filed a hybrid motion for summary judgment regarding the notice of claim, and the trial court granted the motion without stating its basis for doing so. Id. On appeal, appellants contended the summary judgment evidence raised an issue of fact as to the City’s actual knowledge of the claim. Id. at *2. The Court of Appeals held that “as a matter of law, the City did not have actual notice that its fault produced or contributed to the accident. Regardless of whether [the officer] should have reached a different conclusion, the subjective knowledge standard is not met. No other evidence goes to the issue of the City’s actual notice.” Id. at *5. The Court also noted that the City’s knowledge that the drop-off was dangerous did not constitute subjective awareness of its fault for appellants’ accident. Id.

The Amarillo Court of Appeals addressed the actual notice issue in State v. McAllister, No. 07-03-0405-CV, 2004 WL 2434347(Tex.App.-Amarillo Oct.29, 2004, pet. filed) (mem.op.). In McAllister, an employee of the Texas Department of Transportation (TxDOT) died after being struck by a vehicle driven by appellee McAlister. Id. at *1. TxDOT sued McAlister to recover workers’ compensation benefits paid on behalf of its employee, and McAllister counterclaimed for property damage, personal injuries, and mental anguish. Id. In response to McAllister’s counterclaim, TxDOT asserted the defense of sovereign immunity and contended McAlister did not give notice of his claim as required by the TTCA. Id. at *1-*2. In a letter to an Assistant Attorney General, McAllister’s attorney complained about TxDOT’s decision to prosecute a subrogation claim against McAlister. Id. at *3. In the letter, counsel stated that McAlister was “seriously affected ... personally, mentally and emotionally[,]” by the accident, and that McAllister should “not be forced to relive through the drama of the courtroom the details of this event[.]” Id. at *3. The Court of Appeals noted the letter did not mention a claimed injury by McAlister, the time and place of the incident, or the incident that gave rise to the claim. Id. at *4. The Court further pointed out that although TxDOT investigated the accident, “there is no evidence in the record indicating it had actual notice of McAllister’s claim or that its fault produced or contributed to the claimed injury.” Id. Therefore, the Court concluded that McAllister had failed to comply with the notice provisions of the TTCA. Id.

We must now determine whether TDCJ had actual notice of Simons’s claim. See Tex. Civ. Prac. & Rem.Code § 101.101(c). After TDCJ conducted an investigation of Simons’s accident, TDCJ determined that the accident resulted from Simons’s failure to stand clear when ordered, and no TDCJ employees were at fault. Simons, 74 S.W.3d at 141. TDCJ disciplined Simons for failing to obey an order to stand clear. Id. In addition, Si-mons’s own statements when interviewed by TDCJ indicated Simons did not hold anyone at fault for the accident. Id. In response to TDCJ’s plea to the jurisdiction and no evidence motion for summary judgment, Simons produced the affidavit of June M. Hodde, Simons’s attorney’s former legal assistant. Hodde’s affidavit states that Simons’s attorney instructed her to investigate Simons’s accident, and counsel “intended to file a lawsuit concerning this matter if the facts indicated fault or negligence on the part of the members of the work detail or the individuals at the Terrell Unit in charge of [Simons].” Hod-de further avers as follows:

[Simons’s counsel] ... spoke directly to someone at the hospital who appeared to be an administrator with authority to authorize a personal visit to Brian, and I was present when this conversation took place. [Simons’s counsel] said during this conversation that he was an attorney representing Brian, and that he was investigating the circumstances of Brian’s injury and a possible lawsuit against the State.

Eventually we obtained permission to visit Brian in person at the hospital.... Before doing so, additional telephone calls and faxes were sent to the hospital and to the Terrell Unit. During at least some of those phone calls, I again explained that I worked for [Simons’s counsel], that [counsel] was an attorney representing Brian, and that [counsel] was investigating the circumstances of Brian’s injury and a possible lawsuit against the State because of those injuries.

In early December 1994, I visited Brian in person at the Terrell Unit.... In the process of being admitted to the Terrell Unit, I spoke to several individuals, including at least one individual who identified himself as a warden at the Unit. During the course of gaining admission to the Terrell Unit ..., I indicated to individuals working at the Unit that I worked for [counsel], that [counsel] was an attorney representing Brian, and that [counsel] was investigating the circumstances of Brian’s injury and a possible lawsuit against the State because of those injuries.

The fact that TDCJ investigated Simons’s accident does not constitute subjective awareness on the part of TDCJ that its fault produced or contributed to Simons’s injury. See Simons, 140 S.W.3d at 347-48. Indeed, the results of TDCJ’s investigation indicated Simons, not TDCJ, was responsible for the accident. Simons, 74 S.W.3d at 141. Hodde’s affidavit does not demonstrate subjective awareness on the part of TDCJ that its fault produced or contributed to the claimed injury. See generally Casanover, 2006 WL 23407 at *1, *4 (Letters to hospital, in which counsel asserted the hospital’s negligence proximately caused decedent’s death, did not provide actual notice to the hospital that its fault allegedly produced or contributed to the claimed injury.). Although Hodde avers in her affidavit that she spoke with a warden at the Terrell Unit, her affidavit does not indicate the substance of the conversation. In addition, there is no evidence in the record that the warden was an individual charged with reporting or investigating claims. Even if we liberally read Hodde’s affidavit as indicating she told the warden that she worked for Simons’s counsel, who was investigating the accident and contemplating litigation, this would not constitute actual notice to TDCJ that its fault allegedly produced or contributed to Simons’s injury. See generally Simons, 140 S.W.3d at 347-48; Sipes, 146 S.W.3d at 284; Ortegren, 2006 WL 495387 at *5.

We hold that, as a matter of law, TDCJ did not have actual notice that its fault produced or contributed to the accident. It was error for the trial court to deny TDCJ’s plea to the jurisdiction and no-evidence motion for summary judgment. We reverse the trial court’s order and render judgment dismissing Simons’s claim for want of jurisdiction.

REVERSED AND RENDERED.

1 . For a full discussion of the circumstances of Simons’s injury, see Tex. Dep’t of Criminal Justice v. Simons, 74 S.W.3d 138, 140-41 (Tex.App.-Beaumont 2002), rev’d, 140 S.W.3d 338 (Tex.2004).

2 . Simons concedes he did not provide TDCJ with written notice, so he relies upon the "actual notice” exception provided by Tex. Civ. Prac. & Rem.Code Ann. § 101.101(c) (Vernon 2005). TDCJ concedes it had actual knowledge of the occurrence of Simons’s injury and the identity of the parties involved. Simons, 74 S.W.3d at 140.

3 . Section 101.101 provides as follows:

(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.

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(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.

4 . Simons filed suit against TDCJ on August 28, 1996.

5 . Simons does not challenge TDCJ's assertion that Tex. Gov't Code Ann. § 311.034 is merely a procedural statute and, therefore, the amended version applies to Simons’s claim.

6 . But see Casanover v. Tomball Reg’l Hosp. Auth., No. 01-04-00136-CV, 2006 WL 23407, at *2 n. 2 (Tex.App.-Houston [1st Dist.] Jan. 5, 2006, no pet. h.) (mem.op.) (Coin! did not apply amended version of Tex. Gov't Code Ann. § 311.034 to case filed before amendment's effective date.).