the University of Texas Southwestern Medical Center at Dallas v. Donna Loutzenhiser, as Next Friend of Stephen Luke Loutzenhiser, a Minor

IN THE SUPREME COURT OF TEXAS

IN THE SUPREME COURT OF

TEXAS

═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═

No.

02-0894

═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═

The

University of

Texas

Southwestern

Medical Center at Dallas,

Petitioner,

v.

Donna

Loutzenhiser, as Next Friend

of

Stephen

Luke Loutzenhiser, a Minor, Respondent

═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═

On Petition for Review from

the

Court of Appeals for the

Fifth District of Texas

═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═

Argued January 7, 2004

Justice Hecht delivered the opinion of

the Court, joined by Chief Justice

Phillips, Justice Owen, Justice Jefferson, Justice Wainwright , and Justice Brister .

Justice O = Neill filed a concurring opinion,

joined by Justice Schneider and Justice Smith .

The

Texas Tort Claims Act provides that A [s] overeign immunity to suit is waived and abolished to the

extent of liability created by [the Act]. @ [1] Section 101.101(a) of the Act

states:

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. [2]

Section

101.101(c) makes this requirement inapplicable A if

the governmental unit has actual notice . . . that the claimant has

received some injury @ . [3] In this case we hold that the plaintiff

did not give notice within the six-month period as required, that lack of notice

is a complete defense to suit but does not deprive the court of subject matter

jurisdiction, and that the defendant did not waive its complaint of no notice by

delaying to raise it. Accordingly,

we modify the judgment of the court of appeals and affirm. [4]

I

Donna

Loutzenhiser = s

son Stephen was born with a severely deformed left hand which she claims was

caused by a prenatal diagnostic test performed by a governmental unit C

the University of Texas Southwestern Medical Center at

Dallas [5]

C

more than six months earlier in her pregnancy. The test, a chorionic villus sampling

(CVS), involves inserting a needle through

the uterus into the chorion C

the section of the placenta providing the fetus with nutrients via its blood

supply C

and removing a part of it for chromosomal testing. Limb reduction is a known risk of this

procedure, particularly if performed early in a pregnancy. The first attempt, on January 21, 1992, did not

collect the proper tissue, but a second procedure performed a week later

did. Stephen was born on August 15,

and seventeen days later, his father notified the Medical Center of Stephen = s

birth defect. In December 1994,

Loutzenhiser and two other mothers, individually and

on behalf of their respective children, sued the

Medical

Center alleging that its

CVS testing caused birth defects.

In

August 1996, one year and eight months after suit was filed, the Medical Center

moved for summary judgment in part on the ground that its immunity from suit had

not been waived under the Tort Claims Act because the plaintiffs had failed to

give the six-month notice required by section 101.101(a), and therefore the

court lacked jurisdiction over the case.

Several months later, the trial court granted the motion as to all of the

plaintiffs except Stephen. [6] At the time, the

Medical

Center could not appeal a refusal to

dismiss a suit for want of jurisdiction based on sovereign immunity, [7]

but two individual defendants could and did take an interlocutory appeal from

the denial of their motion for summary judgment based on immunity. [8] That appeal ended in April 2001. [9] In July, the trial court set a trial

date in February 2002.

In

December 2001, seven weeks before trial and seven years after suit was filed,

the Medical

Center filed a plea to the

jurisdiction, asserting as it had in its earlier motion for summary judgment

that the court lacked jurisdiction because Loutzenhiser had not given notice as required by section

101.101(a). The

Medical

Center also asserted that Loutzenhiser had not pleaded a claim involving the use of

tangible personal property within the Tort Claims Act = s

waiver of immunity. [10] The

Medical

Center cited new authority but also

candidly acknowledged that it had filed the plea so that it could take an

interlocutory appeal from an adverse ruling C

a right created in 1997 [11]

that it did not have when its motion for summary judgment was denied C

further delaying trial of the case.

The trial court treated the notice argument as a motion to reconsider its

denial of the motion for summary judgment, which it denied, and treated the

no-use-of-property argument as a special exception, which it sustained. Alternatively, the court held that the

Medical

Center had waived both arguments by

waiting until the eve of trial to raise them and ordered that the plea be

struck.

As

promised, the Medical

Center appealed. [12] The court of appeals affirmed, holding

as it had previously that the lack of notice required by section 101.101(a) does

not deprive a court of jurisdiction over a claim. [13] The court of appeals also held that the

trial court had properly treated its no-use-of-property argument as a special

exception and did not address the

Medical

Center = s

contention that it had not waived its notice argument by delay. [14]

The

Medical

Center filed a petition for review

limited to the notice and waiver issues, which we granted. [15] We have jurisdiction over this

interlocutory appeal [16]

because the courts of appeals are in conflict over whether a court has

jurisdiction over a claim, notice of which has not been given as required by

section 101.101(a). [17]

II

We

first consider whether Loutzenhiser gave notice as

required by section 101.101(a).

The

Medical

Center argues that Loutzenhiser was required to notify it of Stephen = s

claim that he had been injured by the CVS

within six months of the date the procedure was performed, while Stephen was

still in utero . Loutzenhiser

argues that to require notice on behalf of a fetus would violate constitutional

guarantees of due process, equal protection, and open courts. Loutzenhiser ,

according to her brief, A takes

no position with respect to the rights of minors in general regarding the notice

provisions of the [Tort Claims] Act, @

and thus we limit our consideration to the effect of the notice requirement on

the rights of the person injured in utero . We need not reach Loutzenhiser = s

constitutional arguments because we disagree with the

Medical

Center = s

reading of the statute.

Section

101.101(a) requires A notice

of a claim . . . not later than six months after the day that the

incident giving rise to the claim occurred. @ [18]

As we have stated, A the

longstanding common law rule [is] that the rights of a fetus [are] contingent on

live birth. @ [19] Under this rule, Stephen legally had no

claim against the Medical

Center before he was born, even if

his injury had been manifest when the CVS was

performed (it was not). The

Medical

Center argues that A the

incident giving rise to the claim @

was the CVS, but the

CVS was only an incident C

one of two C

giving rise to the claim. The other

such incident, and one equally necessary to the existence of the claim, was

Stephen = s

live birth. If the notice period

ran from the CVS, the statute required notice

of a nonexistent claim. A Courts

should not read a statute to create such an absurd result. @ [20] We decline to do so here when there is a

reasonable alternative construction of the statutory language. Because Stephen = s

live birth was an incident giving rise to his claim, and one essential to the

existence of the claim, we hold that the six-month period for giving notice

began when Stephen was born.

The

Medical

Center argues that this construction

of section 101.101 is inconsistent with our decision in Brown v. Schwarts , where we held that limitations on a claim for

negligent prenatal treatment began to run when the treatment was completed. [21] But the controlling statute in

Brown was materially different.

There, the statute of limitations prescribed that a claim for negligent

medical or health care treatment be brought within two years of the date the

treatment was completed A [n] otwithstanding any other law @ . [22] The statute did not require the claim to

be in existence when limitations began to run, something that we acknowledged

could yield harsh results in certain circumstances. [23] But the two-year limitations period,

even though it began running when

prenatal care was rendered, could not operate to bar the child = s

claim before it came into existence because the limitations period was much

longer than the gestation period.

The

Medical

Center argues that even if the notice

period did not begin to run until Stephen was born, it did not receive notice of

his claim until more than two years later when Loutzenhiser filed suit. Loutzenhiser

argues that Stephen = s

father = s

telephone call to the Medical

Center provided the required notice,

but it clearly did not. The only

evidence of the substance of that call was Stephen = s

father = s

testimony as follows:

I called after he was born to inform them that he had

C

the situation with his hand C

he had no fingers, thinking that they would want to be made aware of that. The reason that I thought they may want

to be made aware of that is because I thought it would be relevant to them, and

that I had read in June or July a Newsweek article that said that

CVS possibly

causes limb reduction C

is, I believe, the term that it used.

And since it happened to my son, I thought that they would want to know

about it. . . . [A] nd at that time I was told that it didn = t

have anything to do with the test, and they didn = t

act interested in finding out about it.

And I said, A Would

you like some information for your records? @ ,

and they never followed up on it.

Stephen = s

father thought the call lasted about five minutes, and he could not recall with

whom he spoke. The most that can

fairly be said from his testimony is that the

Medical

Center received notice from

Stephen = s

father that Loutzenhiser had had a

CVS procedure and that Stephen had been born

with a limb reduction. It is not

clear that the Medical

Center was told that it had performed

the CVS procedure; certainly it was not told

the time. More importantly, the

Medical

Center had no A notice

of a claim @ ,

as section 101.101(a) requires.

Stephen = s

father stated only that he thought A they

would want to be made aware @

of Stephen = s

deformity A for

[their] records @ .

Loutzenhiser argues that even if the

Medical

Center did not receive the notice

required by section 101.101(a), it had actual notice which, under section

101.101(c), made the notice requirement in section 101.101(a) inapplicable. But actual notice that an injury has

occurred is not enough to satisfy section 101.101(c); as we hold today in

another case, a governmental unit must also have A a

subjective awareness that its fault produced or contributed to the claimed

injury. @ [24] There is no evidence that before suit

was filed the Medical

Center was ever subjectively aware,

either from Stephen = s

father = s

telephone call or otherwise, that it was at fault for Stephen = s

deformity, as Loutzenhiser eventually alleged. Stephen = s

father = s

testimony suggests that the Medical

Center had no such subjective

awareness.

We

therefore conclude that Loutzenhiser was required to

give notice under section 101.101(a) and did not do so.

III

The

Medical

Center argues that notice of a claim

under section 101.101(a) is a condition of the waiver of the government = s

immunity from suit under the Tort Claims Act. We have held that a court lacks subject

matter jurisdiction over a suit barred by immunity. [25] Thus, the

Medical

Center argues, the notice required by

section 101.101(a) is jurisdictional.

As noted above, the courts of appeals are divided on whether this notice

provision is jurisdictional. [26]

In

Dubai Petroleum Co. v. Kazi , we concluded that

any inquiry into whether the Legislature intended a particular statutory

requirement to be jurisdictional as opposed to mandatory [27]

must be conducted in light of A the

longstanding principle that subject-matter jurisdiction is a power that > exists

by operation of law only, and cannot be conferred upon any court by consent or

waiver = @ . [28] Not only may an issue of subject

matter jurisdiction A be

raised for the first time on appeal by the parties or by the court @ , [29]

a court is obliged to ascertain that subject matter jurisdiction exists

regardless of whether the parties have questioned it. [30] Even after all proceedings have long ago

come to an end:

a judgment will never be considered final if the court lacked

subject‑matter jurisdiction.

A The

classification of a matter as one of [subject‑matter] jurisdiction

. . . opens the way to making judgments vulnerable to delayed attack

for a variety of irregularities that perhaps better ought to be sealed in a

judgment. @ [31]

The

failure of a non-jurisdictional requirement mandated by statute may result in

the loss of a claim, but that failure must be timely asserted and compliance can

be waived. The failure of a

jurisdictional requirement deprives the court of the power to act (other than to

determine that it has no jurisdiction), and ever to have acted, as a matter of

law. Since the Legislature is bound

to know the consequences of making a requirement jurisdictional, one must ask,

in trying to determine legislative intent, whether the Legislature intended

those consequences. In

Dubai , we held that the

Legislature did not intend the statutory requirements for suing in

Texas for an injury or death that

occurred in a foreign country to be jurisdictional and therefore subject to

being raised at any time. [32] We follow the same analysis here.

We

start with the statutory language.

The language of section 101.101(a) is clearly mandatory, stating as it

does that A [a]

governmental unit is entitled to receive notice @ . [33] The Code Construction Act instructs that

A > [ i ]s entitled to =

creates or recognizes a right. @ [34] Given this meaning, section 101.101(a)

gives governmental units a right to notice on which they can insist, but it does

not specify the consequences if that right is denied. Can a governmental unit waive its right

to notice, or is notice essential to a waiver of immunity? Before recodification of the Tort Claims Act in 1985, [35]

which was intended to be A without

substantive change @ , [36]

the six-month notice provision required that A any

person making a claim hereunder shall give notice @ , [37]

thereby indicating that the claimant had a duty to give notice. [38] But like the recodified version, the former statute did not state the

consequences for breach of the duty to notify. By contrast, according to the

conventions of the Code Construction Act, A > [m] ust =

creates or recognizes a condition precedent @ , [39]

at least suggesting that a requirement could be jurisdictional. The use of A is

entitled to @

rather than A must @

C

which was surely an intentional choice by the codifiers in deciding to abandon

A shall @

C

is therefore some indication that the Legislature did not intend notice to be

either a condition precedent to waiver of immunity or jurisdictional.

One

indicator of legislative intent is a statute = s

purpose. [40] As noted above, the purpose of the

notice requirement in section 101.101 is A 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. @ [41] We do not see how this purpose is served

by allowing lack of notice to be raised at any time, for the first time on

appeal, or even later, long after the litigation has ended. On the contrary, it appears that if a

governmental unit is to avoid litigation to which it should not be subjected

because of lack of notice, it should raise the issue as soon as possible. Moreover, if in a particular case a

governmental unit were not prejudiced by lack of notice and chose to waive it,

we do not see how the statutory purpose would thereby be impaired.

But

the Medical

Center argues that it is the right to

take an interlocutory appeal from a trial court = s

refusal to dismiss the case, not the right to raise lack of notice at any time,

that avoids the burden of litigation when immunity from suit has not been

waived. In creating the right of a

governmental unit to appeal from the denial of a plea to the jurisdiction, the

Legislature clearly assumed that at least some requirements of the Tort Claims

Act = s

waiver of immunity are jurisdictional, but we find nothing to indicate that the

six-month notice requirement was one of them. Certainly, not all requirements are

jurisdictional. For instance,

section 101.102(a), adjacent section 101.101, mandates that A [a]

suit under this chapter shall be brought in state court in the county in which

the cause of action or a part of the cause of action arises. @ [42] We have previously held in Brown v.

Owens that filing suit in the wrong county does not deprive the court of

subject matter jurisdiction. [43] The

Medical

Center does not challenge our holding

in Brown but attempts to distinguish it by arguing that if the failure of

a statutory requirement can be cured C

in Brown , by transfer of venue C

the requirement should not be jurisdictional. Only if the failure of a statutory

requirement cannot be cured C

giving notice within six months after the six months has passed C

should the requirement be jurisdictional.

While the distinction the

Medical

Center draws is a salient one, we

think it is better applied with the purpose of the requirement in mind. Although timely notice cannot be given

after the stated time for it has passed, prejudice from lack of notice may be

cured or may never arise at all.

While the government need not show prejudice to obtain dismissal for want

of notice, if it chooses to try a case to judgment without complaining of a lack

of notice, it suffers no impairment of right that would entitle it to complain

of no notice for the first time on appeal.

In this regard, lack of notice should no more be jurisdictional than

improper venue. Thus, even using

the curable/incurable distinction, we cannot tell that the Legislature intended

a ruling on notice to be subject to interlocutory appeal when a ruling on venue

is not.

The

Medical

Center argues that notice should be

jurisdictional, even though venue is not, because notice implicates substantive

rights and venue does not. We are

not convinced of the premise. The

Legislature itself included both the notice and venue provisions in a subchapter

entitled A Procedures @ ,

along with provisions relating to the legal representation of governmental

units, evidence of insurance coverage, settlements, payment and collection of

judgments, and other seemingly non-substantive matters. [44] Although the Code Construction Act

cautions that A [t]he

heading of a . . . subchapter . . . does not limit or expand

the meaning of a statute @ , [45]

the heading gives some indication of the Legislature = s

intent to group what it considered to be procedural matters together.

The

Medical

Center argues that we have construed

provisions similar to the notice requirement in section 101.101(a) to be

jurisdictional. But the three cases

cited by the Medical

Center all involve the failure to

exhaust administrative remedies. [46] In Essenburg v. Dallas County , we said that a

A failure

to exhaust administrative remedies may deprive courts of subject matter

jurisdiction in the dispute . . . because the Legislature in

conferring jurisdiction upon an agency expresses its will to have the agency

resolve disputed issues of fact and policy. @ [47] Indeed, an A exhaustion

requirement seeks to assure that the appropriate body adjudicates the dispute

C the hallmark of a jurisdictional

statute. @ [48] By contrast, we held that a statute

providing that 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 = @

was not jurisdictional. [49] This presentment requirement, we said,

was to promote settlement, not to define subject matter jurisdiction. [50] A requirement of presentment merely

gives a governmental unit an opportunity to decide for itself whether to pay a

claim. A requirement of exhaustion

of remedies ensures a decision on the merits by the authority designated to make

it.

The

court of appeals cited Essenberg in support of

its conclusion that the notice requirement in section 101.101(a) is not

jurisdictional. The

Medical

Center argues that Essenberg is irrelevant because the statute there was

not an integral part of a statute waiving immunity as section 101.101(a) is, and

because a presentment requirement is curable by abatement. Neither argument is persuasive. Section 101.101(a) is certainly integral

to the Tort Claims Act, but so is section 101.102(a), the venue requirement, yet

it is not jurisdictional. And

though a failure to present a claim before suit is filed is curable while a

failure to give notice of a claim within six months is not, we do not think, for

the reasons we have explained, that the distinction can be used to determine

whether the notice provision is jurisdictional.

Finally,

the Medical

Center argues that to hold that the

six-month notice provision is not jurisdictional improperly expands the Tort

Claims Act = s

waiver of immunity. The

Medical

Center argues that there should be a

presumption of non-waiver like that reflected in the Code Construction Act,

which states that A a

statute shall not be construed as a waiver of sovereign immunity unless the

waiver is effected by clear and unambiguous language. @ [51] Since this Court decided Hosner v. DeYoung in

1847, the Medical

Center continues, the Court has held

that the State A can[not]

be sued in her own courts without her consent, and then only in the manner

indicated by that consent. @ [52] The notice requirement in section

101.101(a), the Medical

Center insists, is part of the manner

in which the Tort Claims Act waives immunity. While we certainly do not disagree with

the general principles the Medical

Center asserts or recede from so

venerable an authority as Hosner , we do not

find them dispositive of whether the Legislature

intended notice to be a condition of its waiver of immunity, for all of the

reasons we have explained.

Thus,

we conclude that the failure to give notice of a claim as required by section

101.101 does not deprive a court of subject matter jurisdiction over an action

on the claim. We note that in other

jurisdictions when notice or limitations provisions pertaining to suits against

the government are considered jurisdictional, the statutory language is much

clearer than section 101.101. [53] We disapprove the decisions of the

courts of appeals to the contrary. [54] The notice provision is not a condition

of the Tort Claims Act = s

waiver of immunity as other provisions are. We emphasize that the requirement of

notice is no less mandatory, and that a lack of notice bars any action under the

Act. But it does not deprive the

court of subject matter jurisdiction.

IV

The

Medical

Center argues that it did not waive

its contention that the lack of notice required by section 101.101(a) barred

Loutzenhiser = s

claim by raising it seven weeks before trial. We agree. For one thing, the

Medical

Center raised the issue by motion for

summary judgment much earlier in the litigation, and it was entitled to seek

reconsideration based on subsequent authority. Even if its motive was purely to

exercise its newly-created right to take an interlocutory appeal from an adverse

ruling on the issues raised by its plea to the jurisdiction, thereby delaying

the trial, there was nothing to prevent it from doing so. The trial court was understandably irked

that resolution of a case already delayed by one interlocutory appeal would be

further delayed by another, but any fault was the Legislature = s,

not the Medical

Center = s. The

Medical

Center had a valid argument that it

had not received the notice required by section 101.101(a), as we have now held,

and it was entitled to raise it.

Treating the Medical

Center = s

plea as a motion to reconsider the motion for summary judgment, the trial court

should have granted summary judgment.

*

*

*

*

*

As

we have said, the trial court = s

order contained three rulings: it refused to dismiss the action based on the

Medical

Center = s

arguments of no notice and no alleged use of property, and alternatively struck

the plea as untimely. The court of

appeals simply A affirm[ed]

the trial court = s

judgment. @ [55] It should have affirmed only that

portion of the order refusing to dismiss the case based on the

Medical

Center = s

argument of no alleged use of property. [56] It did not reach, and therefore could

not affirm, the trial court = s

alternative ruling striking the plea.

And having correctly concluded that the

Medical

Center = s

notice argument was not jurisdictional, the court of appeals did not have

interlocutory appellate jurisdiction to affirm that portion of the trial

court = s

order. [57] Accordingly, we modify the judgment of

the court of appeals to affirm only that portion of the trial court = s

order refusing to dismiss the case because of inadequate allegations of use of

property. As modified, the judgment

is affirmed.

Nathan L. Hecht

Justice

Opinion

delivered: July 9,

2004

[1] Tex .

Civ .

Prac . & Rem. Code ' 101.025(a).

[2] Id. ' 101.101(a).

[3] Id. ' 101.101(c).

[4] ___ S.W.3d ___ ( Tex. App. C Dallas 2002).

[5] See Tex .

Civ .

Prac . & Rem. Code ' 101.001(3)(A) ( A governmental unit @ means A this state and all the several agencies of government

that collectively constitute the government of this state @ ); Tex .

Educ . Code ' ' 65.02(a)(7) (the University of Texas System includes

the University of Texas Southwestern Medical Center at Dallas and its specified

components), 74.101 ( A The University of Texas Southwestern Medical Center at

Dallas is a component institution

of The University of Texas System under the management and control of the board

of regents of The University of Texas System. @ ); see University of Texas Med. Branch v.

York , 871 S.W.2d 175 (Tex. 1994) (treating a University of Texas medical

school as a governmental unit under the Texas Tort Claims Act); Lowe v. Texas

Tech Univ. , 540 S.W.2d 297, 298 (1976).

[6] See Lowe v. Teator , 1 S.W.3d 819, 821 (Tex. App. C Dallas 1999, pet. denied).

[7] See Act of May 27,

1997 , 75th Leg., R.S., ch . 1296, 1997 Tex. Gen. Laws 4936 , 4937 (adding subsection

(8) to Tex .

Civ .

Prac . & Rem. Code ' 51.014(a), allowing interlocutory appeals from

orders granting or denying a plea to the jurisdiction by a governmental

unit).

[8] Lowe , 1 S.W.3d at

820-821 .

[9] See 44 Tex. Sup. Ct. J. 573 ( Apr. 5, 2001 ) (order denying the motion for rehearing of the

petition for review of the decision in Lowe ) (cause no.

99-0980).

[10] See Tex .

Civ .

Prac . & Rem. Code ' 101.021 ( A A governmental unit in the state is liable for

. . . (2) personal injury and death so caused by a condition or use of

tangible personal or real property if the governmental unit would, were it a

private person, be liable to the claimant according to Texas law. @ ).

[11] Supra note 7.

[12] See Tex .

Civ .

Prac . & Rem. Code ' 51.014(a)(8) ( A A person may appeal from an interlocutory order of a

district court . . . that . . . (8) grants or denies a plea

to the jurisdiction by a governmental unit as that term is defined in Section

101.001 [of the Tort Claims Act]. @ ).

[13] ___ S.W.3d ___ (Tex. App. C Dallas 2002) (citing Stanton v. Univ. of Tex. Health

Sci . Ctr. , 997 S.W.2d 628, 629 (Tex.

App. C Dallas 1998, pet. denied).

[14] Id.

[15] 47 Tex. Sup. Ct. J. 2 ( Oct. 3, 2003 ).

[16] Tex .

Gov = t Code ' ' 22.001(a)(2), 22.225(b)(3), (c); Henry Schein , Inc. v. Stromboe , 102

S.W.3d 675, 687-688 ( Tex. 2002).

[17] Compare National Sports & Spirit, Inc. v.

Univ. of

N.

Texas , 117 S.W.3d 76, 79 ( Tex. App. C Fort Worth 2003, no pet.) (no jurisdiction); Crane

County v. Saults , 101 S.W.3d 764, 768

( Tex. App. C El Paso 2003, no pet.) (same);

Texas Dep = t of Transp . v.

Blevins , 101 S.W.3d 170, 174 (Tex.

App. C Fort Worth 2003), appeal dismissed per curiam , ___ S.W.3d ___

( Tex. 2004)

(same); Texana Cmty . MHMR Ctr. v. Silvas , 62

S.W.3d 317, 324 ( Tex. App. C Corpus Christi 2001, no pet.) (same); State v. Kreider , 44 S.W.3d 258 , 263‑264 (Tex. App. C Fort Worth 2001, pet. denied) (same); with

University of Texas Sw . Med. Ctr. v. Loutzenheiser , ___ S.W.3d ___ (Tex. App. C Dallas 2002) (jurisdiction), judgment modified and

aff = d , ___ S.W.3d

___ (Tex. 2004); Martinez v. Val Verde County Hosp. Dist. , 110 S.W.3d 480

(Tex. App. C San Antonio 2003) (same), aff = d , ___ S.W.3d

___ (Tex. 2004); Stanton , 997 S.W.2d at 629

(same).

[18] Tex .

Civ .

Prac . & Rem. Code ' 101.101(a).

[19] Edinburg Hosp.

Auth. v. Treviño , 941 S.W.2d 76, 78

( Tex. 1997) (citing Witty v. Am. Gen. Capital Distribs ., Inc. , 727 S.W.2d 503, 505

( Tex. 1987)) (also discussing Krishnan v. Sepulveda ,

916 S.W.2d 478, 482 ( Tex. 1995); Pietila v.

Crites , 851 S.W.2d 185, 186 ( Tex. 1993); and Yandell

v. Delgado , 471 S.W.2d 569, 570 ( Tex. 1971)).

Cf. Act effective

September 1, 2003 , 78th Leg., R.S., ch . 822 ,

' ' 1.01, 1.02, 1.03, and 1.04, 2003 Tex. Gen. Laws 2607 ,

2607-2608 (adding (3) ( A > Death = includes, for an individual who is an unborn child, the

failure to be born alive. @ ) and (4) ( A > Individual = includes an unborn child at every stage of gestation

from fertilization until birth. @ ) to Tex .

Civ .

Prac . & Rem. Code

' 71.001, but at ' 71.003 excluding such claims against, e.g ., a

physician or health care provider for lawful medical practices or procedures,

and providing that these changes A apply only to a cause of action that accrues on or after

the effective date of this Act @ and that actions accruing prior to that time are

governed by prior law).

[20] Barshop v. Medina

County Underground Water Conservation Dist. , 925 S.W.2d 618, 629 (Tex.

1996); accord , C & H Nationwide, Inc. v. Thompson , 903 S.W.2d

315 , 322 n.5 (Tex. 1994) ( A Statutory provisions will not be so construed or

interpreted as to lead to absurd conclusions, great public inconvenience, or

unjust discrimination, if the provision is subject to another, more reasonable

construction or interpretation. @ ); Bridgestone/Firestone, Inc. v. Glyn -Jones , 878 S.W.2d 132, 135 (Tex. 1994 (Hecht, J.,

concurring) ( A in some circumstances, words, no matter how plain, will

not be construed to cause a result the Legislature almost certainly could not

have intended @ ); McKinney v. Blankenship , 282 S.W.2d 691, 698

(Tex. 1955) ( A Unless there is no alternative, a statute will not be

interpreted so as to lead to a foolish or absurd result. @ ); Cramer v. Sheppard , 167 S.W.2d 147, 155 (Tex.

1942) ( A constitutional and statutory provisions will not be so

construed or interpreted as to lead to absurd conclusions, great public

inconvenience, or unjust discrimination, if any other construction or

interpretation can reasonably be indulged in @ ); see Tex .

Gov = t Code ' 311.021(3), (4) ( A In enacting a statute, it is presumed that

. . . (3) a just and reasonable result is intended . . .

[and] (4) a result feasible of execution is intended

. . . . @ ).

[21] 968 S.W.2d 331, 334 ( Tex. 1998).

[22] Id. at 333 (construing Tex .

Rev .

Civ .

Stat .

Ann . art. 4590i, ' 10.01, now codified as

Tex .

Civ .

Prac . & Rem. Code

' 74.251(a)).

[23] Id. at 334 ( A This means that an action for the wrongful death of a

child who lives more than two years after a prenatal injury will as a rule be

barred by limitations, but the same result ensues when the decedent is an

adult. While there are

circumstances when this result will seem harsh, it is well within the

Legislature = s prerogative to prescribe the limitations period for a

wrongful death claim which, it must be remembered, did not exist at common law

and is a creature of statute. @ ) (citation omitted).

[24] Texas Dep = t of Crim . Justice v.

Simons , ___ S.W.3d ___, ___

( Tex. 2004).

[25] Texas Dep = t of Transp . v.

Jones , 8 S.W.3d 636, 638 (Tex. 1999)

(per curiam ) (citing Federal Sign v. Tex. State

Univ. , 951 S.W.2d 401, 403 (Tex. 1997)); Duhart v. State , 610 S.W.2d 740, 741 (Tex.

1980); Missouri Pac. R.R. v. Brownsville Navigation Dist. , 453 S.W.2d

812, 814 (Tex. 1970); Walsh v. Univ. of Tex. , 169 S.W.2d 993, 994 (Tex.

Civ . App. C El Paso 1942, writ ref = d); Hosner v. DeYoung , 1 Tex. 764, 769

(1847)).

[26] See supra note 17.

[27] See Helena Chem. Co. v. Wilkins , 47

S.W.3d 486, 494 ( Tex. 2001) ( A Even if a statutory requirement is mandatory, this does

not mean that compliance is necessarily jurisdictional. @ ).

[28] 12 S.W.3d 71, 76 ( Tex. 2000) (quoting Federal Underwriters Exch. v.

Pugh , 174 S.W.2d 598, 600 ( Tex. 1943).

[29] Texas Ass = n of Bus. v. Texas Air Control Bd. , 852 S.W.2d 440, 445-446

( Tex. 1993).

[30] Waco Indep . Sch . Dist. v. Gibson , 22 S.W.3d 849, 853-854

( Tex. 2000).

[31] Dubai , 12 S.W.3d at 76 (citing Restatement (Second) of Judgments

' 12, cmt . b, at 118

(1982)) (alterations in the original).

[32] Id.

[33] Tex .

Civ .

Prac . & Rem. Code ' 101.101(a) (emphasis

added).

[34] Tex .

Gov = t Code ' 311.016(4).

[35] Act of May 17, 1985 , 69th Leg., R.S., ch . 959,

' 1, 1985 Tex. Gen. Laws 3242 ,

3305.

[36] Tex .

Civ .

Prac . & Rem. Code ' 1.001(a).

[37] Act of May 14, 19 69, 61st Leg., R.S., ch . 292,

' 16, 1969 Tex. Gen. Laws 874 , 878 ( A Except where there is actual notice on the part of the

governmental unit that death has occurred or that the claimant has received some

injury, any person making a claim hereunder shall give notice of the same to the

governmental unit against which such claim is made, reasonably describing the

injury claimed and the time, manner and place of the incident from which it

arose, within six months from the date of the incident. Provided, however, except where there is

such actual notice, charter and ordinance provisions of cities requiring notice

within a charter period permitted by law are hereby expressly ratified and

approved. @ ) (formerly Tex .

Rev .

Civ .

Stat .

Ann . art. 6252-19, ' 16).

[38] Cf.

Tex .

Gov = t Code ' 311.016(2) (stating that with respect to codified

statutes, A > [s]hall = imposes a duty @ ).

[39] Id. ' 311.016(3).

[40] Helena Chem. Co. v. Wilkins , 47 S.W.3d 486, 494

( Tex. 2001) ( A When a statute is silent about the consequences of

noncompliance, we look to the statute = s purpose to determine the proper

consequences. @ ) (citing Albertson = s, Inc. v. Sinclair , 984 S.W.2d 958, 961

( Tex. 1999); Schepps v.

Presbyterian Hosp. of Dallas , 652 S.W.2d 934, 938

( Tex. 1983); and Chisholm v. Bewley Mills , 287 S.W.2d 943, 945

( Tex. 1956)); Hines v. Hash , 843 S.W.2d 464, 468

( Tex. 1992).

[41] Cathey v.

Booth , 900 S.W.2d 339, 341 ( Tex. 1995) (per curiam ) (citing

City of Houston v. Torres , 621 S.W.2d 588, 591

( Tex. 1981)).

[42] Tex .

Civ .

Prac . & Rem. Code ' 101.102(a).

[43] 674 S.W.2d 748, 751 ( Tex. 1984).

[44] Act of May 17, 1985 , 69th Leg., R.S., ch . 959,

' 1, 1985 Tex. Gen. Laws 3242 ,

3305-3306.

[45] Tex .

Gov = t Code ' 311.024.

[46] Wilmer-Hutchins Indep .

Sch . Dist. v. Sullivan , 51 S.W.3d 293, 293-295

( Tex. 2001) (per curiam )

(dismissing a claim against a school district for want of jurisdiction because

of the plaintiff = s failure to exhaust administrative remedies);

General Servs . Comm = n v. Little-Tex Insulation Co. , 39 S.W.3d 591, 595-598 (Tex. 2001) (holding that

exhaustion of administrative procedures under chapter 2260 of the Government

Code is a prerequisite to suit under chapter 107 of the Civil Practice and

Remedies Code); Texas Dep = t of Transp . v. Aer-Aerotron , Inc. ,

39 S.W.3d 220, 220-221 (Tex. 2001) (same).

[47] 988 S.W.2d 188, 189 ( Tex. 1988) (per curiam ).

[48] Id.

[49] Id. at 188 (construing former Tex . Loc.

Gov = t Code ' 81.041(a), now ' 89.004); cf. 28 U.S.C. ' 2675(a) (Federal Tort Claims Act) ( A An action shall not be instituted upon a claim against

the United States for money damages for injury or loss of property or personal

injury or death caused by the negligent or wrongful act or omission of any

employee of the Government while acting within the scope of his office or

employment, unless the claimant shall have first presented the claim to the

appropriate Federal agency and his claim shall have been finally denied by the

agency in writing and sent by certified or registered mail. @ ); e.g. , Wardsworth v. United States , 721 F.2d 503, 505

(5th Cir. 1983) (per curiam ) ( A a lawsuit may be brought under the FTCA only after

presenting the claim to the appropriate federal agency and receiving a denial of

the claim @ ).

[50] 988 S.W.2d at 189 .

[51] Tex .

Gov = t Code ' 311.034.

[52] 1 Tex. 764, 769 (1847); accord, e.g., State v.

Isbell , 94 S.W.2d 423, 424 ( Tex. 1936); Wichita Falls State Hosp. v. Taylor , 106

S.W.3d 692, 694 ( Tex. 2003).

[53] Notice jurisdictional:

Colorado C Colo .

Rev .

Stat . ' 24-10-109(1) ( A Compliance with the provisions of this section shall be

a jurisdictional prerequisite to any action brought under the provisions of this

article, and failure of compliance shall forever bar any such

action. @ ); Brock v. Nyland , 955

P.2d 1037, 1043 (Colo. 1998) (holding that untimely notice creates a

jurisdictional bar to suit against the state), overruled in part on other

grounds by Finnie v. Jefferson County Sch .

Dist. R-1 , 79 P.3d 1253, 1255-1256 (Colo. 2003) (applying A substantial compliance @ standard to notice provision); Georgia

C Ga. Code

' 50-21-26(a)(3) ( A No action against the state . . . shall be commenced and

the courts shall have no jurisdiction thereof unless and until a written notice

of claim has been timely presented to the state as provided in this subsection .

. . . @ ); Sylvester v. Dep = t of Transp . , 555 S.E.2d 740, 741 (Ga. 2001) (holding that the

failure to provide timely notice deprived the court of subject matter

jurisdiction in suit against the state); Illinois C 705 Ill. Comp.

Stat . 505/22-2 (stating if timely notice is not given,

A any such action commenced against [enumerated state

agencies] shall be dismissed and the person to whom any such cause of action

accrued for any personal injury shall be forever barred from further action in

the Court of Claims @ ); Currie v. Lao , 592 N.E.2d 977, 979 (Ill. 1992)

(stating that if suit against state employee was actually suit against the

state, the exclusive jurisdiction of the Court of Claims could be raised for the

first time on appeal); Montana C Mont . Code ' 2-9-301(1), (2) ( A All claims against the state . . . must be presented in

writing to the department of administration . . . . A complaint based on a claim

. . . may not be filed in district court unless the claimant has first presented

the claim to the department of administration and the department has finally

denied the claim. @ ); Stensom v.

State , 930 P.2d 650, 655 (Mont. 1996) ( A Where a petitioner has failed to first file with the

Department of Adminstration , the district court lacks

jurisdiction to review the matter. @ ); see Buettner v. Dep = t of Labor & Indus. , 784 P.2d 906, 907 (Mont. 1989) (stating that the

notice requirement is A a procedural statute which limits direct access to the

courts . . . while the Department of Administration evaluates the

claim @ ); New Jersey C N.J.

Rev .

Stat . ' 59:8-8 (stating that a claimant who fails to timely

file notice of his claim with a public entity A shall be forever barred from recovering against a public

entity or public employee @ ); Brook v. April , 682 A.2d 744, 745 (N.J. Super.

Ct. App. Div. 1996) (characterizing timely notice as a A jurisdictional prerequisite @ ); Priore v.

State , 462 A.2d 191 , 192 B 193 (N.J. Super. Ct. App. Div. 1983) (holding that the

failure to file timely notice was a nullity and did not confer jurisdiction on

the court); New Mexico C N.M. Stat ' 41-4-16(B) ( A No suit or action for which immunity has been waived

under the Tort Claims Act shall be maintained and no court shall have

jurisdiction to consider any suit or action against the state or any local

public body unless notice has been given as required by this section, or unless

the governmental entity had actual notice of the occurrence. @ ); Emery v. Univ. of N.M. Med. Ctr. , 628 P.2d

1140, 1143 (N.M. Ct. App. 1981) (stating that improper notice is a

jurisdictional bar to suit against the state); North Dakota C N.D. Cent . Code ' 32-12.2-04 (stating that claimants A shall present @ timely notice to the director of the office of

management and budget); Cooke v. Univ. of N.D. , 603 N.W.2d 504 ,

506 B 507 (N.D. 1999) (holding that claimant = s failure to provide proper notice deprived court of

subject matter jurisdiction over claim against the state); Virginia

C Va. Code

' 8.01-195.6 (stating that A [e]very claim cognizable against the Commonwealth . . .

shall be forever barred unless @ the claimant provides written notice of the claim);

see Halberstam v. Commonwealth , 467 S.E.2d 783,

785 (Va. 1996) (holding that strict compliance with statutes waiving sovereign

immunity was required and that estoppel did not lie

against the sovereign).

Notice not jurisdictional:

Arizona C Ariz.

Rev .

Stat . ' 12-821.01(A) (stating that claimants A shall file @ timely notice or it A is barred and no action may be maintained

thereon @ ); Pritchard v. State , 788 P.2d 1178, 1183 (Ariz.

1990) (holding that claimant = s failure to comply with statutory notice requirements

was not a jurisdictional defect which could be raised for the first time on

appeal); California C Cal .

Gov = t Code ' 911.2 (stating that claims A shall be presented @ timely); see Phillips v. Desert Hosp. Dist. , 780

P.2d 349, 353 (Cal. 1989) (holding that the state waived defenses based on

improper notice by failing to notify the claimant of the deficiencies);

Florida C Fla .

Stat . ' 768.28(6)(a) (stating that A [a]n action may not be instituted on a claim against the

state . . . unless the claimant presents the claim in writing @ within the time provided); VonDrasek v. City of St. Petersburg , 777 So.2d

989, 991 (Fla. Ct. App. 2000) ( A It is well established that the notice requirement in

section 768.28(6) does not affect the jurisdiction of the court, but rather is a

condition precedent to the lawsuit. @ ); Indiana C Ind . Code ' 34-13-3-6 (stating that A a claim against the state is barred unless notice is

filed @ timely); Rickets v. State , 720 N.E.2d 1244, 1246

(Ind. Ct. App. 1999) (holding that substantial compliance with notice provisions

was sufficient where its purpose was met); Lawrence County Comm = rs v. Chorley ,

398 N.E.2d 694 (Ind. Ct. App. 1979) (finding that state had waived notice in

decision under former version of act); Michigan C Mich. Comp.

Laws ' 600.6431 ( A No claim may be maintained against the state unless the

claimant [timely] files . . . notice of an intention to file a claim against the

state . . . . @ ); May v. Dep = t of Nat. Res. ,

365 N.W.2d 192, 193 (Mich. 1985) (per curiam ) (stating

that because a delay in providing notice can never be long enough to constitute

actual prejudice as a matter of law, the state = s claim of prejudice must be supported with evidence to

warrant dismissal); Arnold v. Dep = t of Transp . , 597 N.W.2d 261 , 263 B 264 (Mich. Ct. App. 1999) (holding that verification

requirement of notice provision was not jurisdictional); Minnesota

C Minn.

Stat . ' 3.736(5) (stating that A every person . . . who claims compensation from the

state . . . shall present notice @ in a timely manner); Naylor v. Minn. Daily , 342

N.W.2d 632 , 634 B 635 (Minn. 1984) (holding that the failure to provide

notice in suit against the state was not a jurisdictional defect); New

Hampshire C N.H. Rev .

Stat . ' 541-B:14(IV) (stating that filing notice is

A a condition precedent to commencement of the

action @ but the lack of notice does not bar a claim unless the

state can show prejudice); Opinion of Justices , 493 A.2d 1182, 1191 (N.H.

1985) (advisory op.) ( A [T]he loss of rights of action for failure to satisfy

the notice requirement is . . . grossly disproportionate . . . . We therefore

uphold the provision to the extent that noncompliance does not result in

forfeiture of any rights of action against the State. Viewed in this light, the [notice]

provision = s language is directory, not mandatory or

jurisdictional. @ ); New York C N.Y. Court of Claims Act ' ' 10 (requiring notice of claims), 11(c) (stating that

the state = s objection based on improper notice A is waived, unless raised, with particularity @ prior to or with the first responsive pleading); see

Chapman v. State , 690 N.Y.S.2d 328 , 329 B 330 (App. Div. 1999) (noting effect of section 11 was

not retroactive); South Dakota C S.D. Codified

Laws ' 3-21-2 ( A No action for the recovery of damages . . . caused by a

public entity . . . may be maintained . . . unless written notice @ is given timely); Smith v. Neville , 539 N.W.2d

679, 681 (S.D. 1995) (holding that state was estopped

from claiming deficient notice); Wisconsin C Wis.

Stat . ' 893.80(1) (stating that A no action may be brought or maintained against [the

state] . . . upon a claim or cause of action unless @ timely notice is given); Gillen v. City of

Neenah , 580 N.W.2d 628, 634 (Wis. 1998) (holding that the failure to give

notice of a claim against the state was not a jurisdictional defect that could

be raised for the first time on appeal) (citing Figgs v. City of Milwaukee , 357 N.W.2d 548 ,

552 n.6 (Wis. 1984)).

Limitations period jurisdictional: Connecticut C Conn.

Gen .

Stat . ' 4-147 (stating that A [a] ny person wishing to

present a claim against the state shall file with the clerk of the Office of the

Claims Commissioner a notice of claim @ ); Prigge v. Ragaglia , 828 A.2d 542, 549 (Conn. 2003) (holding that

the failure to comply with the claims procedure deprives the court of subject

matter jurisdiction); Iowa C Iowa Code

' 669.13 (stating that A [e]very claim and suit permitted under this chapter

shall be forever barred, unless @ the claimant provides timely written notice to the

state appeal board); Drahaus v. State ,

584 N.W.2d 270, 273 (Iowa 1998) (holding that the failure to exhaust

administrative remedies is jurisdictional and the failure to timely file a claim

divests the court of subject matter jurisdiction); see also Graves v. Iowa

Lakes Cmty . Coll. , 639 N.W.2d 22 , 26 n.1 (Iowa

2002) (stating that the failure to exhaust administrative remedies was not

subject to waiver or estoppel and could be raised for

the first time on appeal); Ohio C Ohio

Rev . Code ' 2743.16(A) (stating that A civil actions against the state permitted by [state tort

claims act] shall be commenced @ within the limitations period); Smith v. Stempel , 414 N.E.2d 433 (Ohio Ct. App. 1979) (untimely

filing does not activate state = s limited waiver of sovereign immunity); Wyoming

C Wyo.

Stat . ' 1-39-113(a) (stating that A [n]o action shall be brought under this act against a

governmental entity unless @ the claimant provides notice); Peterson v.

Sweetwater County Sch . Dist. , 929 P.2d 525 , 529

(Wyo. 1983) (holding that failure to provide timely notice deprived court of

subject matter jurisdiction).

Limitations period not jurisdictional: Alaska C Alaska

Stat . ' 44.77.010 (requiring administrative presentment of

contract claims against the state); State v. Zia ,

Inc. , 556 P.2d 1257, 1263 (Alaska 1976) (holding that administrative

presentment of contract claim against the state was a condition precedent to

suit, but the failure to exhaust administrative remedies did not deprive court

of subject matter jurisdiction); see also Alaska Stat . ' 09.50.250 (allowing tort claimants to bring an action

against the state); Massachusetts C Mass

Gen .

Laws ch . 258 ' 4 ( A A civil action shall not be instituted against [the

state] unless the claimant shall have first presented his claim in writing . . .

. @ ); McGrath v. Stanley , 493 N.E.2d 832, 836 (Mass.

1986) (holding that proper notice is not a jurisdictional limitation, but a

condition precedent affecting the right to recovery, not the existence of

liability); Moran v. Town of Mashpee , 461 N.E.2d 1231, 1233 (Mass App.

Ct. 1984) (holding that improper notice is not a jurisdictional defect and can

be waived); Nebraska C Neb .

Rev .

Stat . ' ' 81-8,212 (requiring tort claims against the state to be

filed with the Risk Manager in a manner prescribed by the State Claims Board),

81-8,213 (stating that A [n]o suit shall be permitted under the State Tort Claims

Act @ until there is a final disposition by the board, or six

months have passed); Cole v. Isherwood , 653

N.W.2d 821 , 825 B 826 (Neb. 2002) (holding that the failure to comply with

the claim presentment requirements of the state tort claims act does not deprive

the court of subject matter jurisdiction); North Carolina C N.C. Gen .

Stat . ' 143-299 (stating that A [a] ll claims against any and

all State departments, institutions, and agencies shall henceforth be forever

barred unless @ they are timely filed with the state Industrial

Commission); see Jones v. Pitt County Mem = l Hosp., Inc. ,

410 S.E.2d 513, 515 (N.C. Ct. App. 1991) (holding that although trial court

lacked jurisdiction over claim which should have been filed with state

Industrial Commission, the state = s argument that the trial court = s dismissal without prejudice impermissibly extended

limitations was not preserved for appeal); South Carolina C S.C. Code

' 15-78-110 (requiring claimant to timely sue or file

verified claim or it A is forever barred @ ); Joubert v. S.C.

Dep = t of Social Servs . , 534 S.E.2d

1, 8 (S.C. App. 2000) (stating that strict compliance with the verified claim

requirements was mandatory and had the effect of extending limitations in a suit

against the state); West Virginia C W. Va. Code

' 29-12A-6 (stating that actions against political

subdivisions A shall be brought within two years @ ); see Stamper v.

Kanawha County Bd. of Educ . , 445 S.E.2d 238, 240

( W.Va. 1994) (characterizing section 29-12A-6 as A a procedural statute dealing primarily with statutes of

limitations. It does not contain

substantive limitations. @ ).

[54] These include National Sports & Spirit, Inc. v.

Univ. of N. Tex. , 117 S.W.3d 76 (Tex. App. C Fort Worth 2003, no pet.); Crane County v. Saults , 101 S.W.3d 764 (Tex. App. C El Paso 2003, no pet.); Texas Dep = t of Transp . v.

Blevins , 101 S.W.3d 170 (Tex.

App. C Fort Worth 2003), appeal dismissed per curiam , ___ S.W.3d ___ (Tex. 2004); Texana Cmty . MHMR Ctr.

v. Silvas , 62 S.W.3d 317 (Tex. App. C Corpus Christi 2001, no pet.); State v. Kreider , 44 S.W.3d 258 (Tex. App. C Fort Worth 2001, pet.

denied).

[55] ___ S.W.3d at ___.

[56] See Texas Dep = t of Transp . v.

Jones , 8 S.W.3d 636, 637-639

( Tex. 1999) (per curiam ).

[57] See Texas Dep = t of Crim . Justice v.

Simons , ___ S.W.3d ___, ___

( Tex. 2004).