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

> Texas Supreme Court · July 9, 2004

URL: https://www.frixlaw.com/law-library/cases/2833293

## Case

- **Court:** Texas Supreme Court
- **Decided:** July 9, 2004
- **Precedential status:** Published
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/2833293

## How later opinions describe it (automated extraction)

- 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
- holding that the failure to provide timely notice deprived the court of subject matter jurisdiction in suit against the state
- holding that proper notice is not a jurisdictional limitation, but a condition precedent affecting the right to recovery, not the existence of liability
- 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

## Opinion text

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).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/2833293. Public record. Not legal advice.