# Cypress-Fairbanks Independent School District v. Joselin Barragan Parra

> Texas Court of Appeals, 1st District (Houston) · June 15, 2023

URL: https://www.frixlaw.com/law-library/cases/9402936

## Case

- **Court:** Texas Court of Appeals, 1st District (Houston)
- **Decided:** June 15, 2023
- **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/9402936

## How later opinions describe it (automated extraction)

- stating that TTCA waives immunity from suit “to the extent of liability created by [the Act]”
- stating that actual notice can often be determined as matter of law, even “when subjective awareness must be proved, if at all, by circumstantial evidence”
- stating that actual notice can often be determined as matter of law even “when subjective awareness must be proved, if at all, by circumstantial evidence”
- stating that actual notice requires, among other things, knowledge of injury
- stating that actual notice requires, among other things, knowledge of property damage and identity of parties involved

## Opinion text

Opinion issued June 15, 2023

In The

Court of Appeals
For The

First District of Texas
————————————
NO. 01-22-00596-CV
———————————
CYPRESS-FAIRBANKS INDEPENDENT SCHOOL DISTRICT, Appellant
V.
JOSELIN BARRAGAN PARRA, Appellee

On Appeal from the 151st District Court
Harris County, Texas
Trial Court Case No. 2022-29660

MEMORANDUM OPINION

Appellee Joselin Barragan Parra sued appellant Cypress-Fairbanks

Independent School District (“Cy-Fair ISD”) under the Texas Tort Claims Act

(“TTCA”) asserting claims of personal injury and property damage allegedly
resulting from a motor-vehicle accident involving a Cy-Fair ISD school bus. Cy-Fair

ISD filed a plea to the jurisdiction arguing that it did not receive notice of Parra’s

claims within six months of the accident as required to waive its governmental

immunity from suit under the TTCA, and therefore the trial court lacked subject-

matter jurisdiction over Parra’s claims against it. Parra responded that Cy-Fair ISD

had actual notice of her claims from a police report completed the day of the

accident. The trial court denied the plea.

In a single issue on appeal, Cy-Fair ISD argues that the trial court erred by

denying its plea because there is no evidence it had notice of Parra’s claims as

required by TTCA section 101.101, and therefore it retained its governmental

immunity from suit which deprived the trial court of subject-matter jurisdiction over

the case. We reverse and render judgment.

Background

On September 24, 2020, a Cy-Fair ISD school bus was travelling behind

Parra’s vehicle on North Eldridge Parkway. Parra stopped at a red-light signal, but

the bus driver was unable to stop the bus in time and rear-ended Parra’s car. Parra

sued Cy-Fair ISD under the TTCA alleging that its employee’s negligent operation

of the bus caused her personal injury and property damage. See TEX. CIV. PRAC. &

REM. CODE § 101.021(1)(A) (waiving governmental immunity for property damage

2
and personal injury caused by governmental employee’s negligent operation or use

of motor-driven vehicle).

Cy-Fair ISD filed a verified answer generally denying Parra’s claims. The

answer specifically asserted that Parra did not provide Cy-Fair ISD with formal,

written notice of her claims within six months of the accident as required by the

TTCA. See id. § 101.101(a).

Cy-Fair ISD also filed a plea to the jurisdiction requesting that the trial court

dismiss Parra’s lawsuit for lack of jurisdiction. Cy-Fair ISD argued that formal

notice is a jurisdictional prerequisite to suing a governmental entity under the TTCA,

but Parra did not provide notice of her claims. Therefore, Cy-Fair ISD argued that it

retained its governmental immunity from suit, and the trial court thus lacked subject-

matter jurisdiction over Parra’s claims. The plea attached an affidavit from Cy-Fair

ISD’s general counsel denying that Cy-Fair ISD received formal notice of Parra’s

claims. The affiant averred that her office typically received claim notices at the

time, even if the notice had been sent to another department. After diligently

searching Cy-Fair ISD’s records, general counsel did not find notice of Parra’s

claims.

In response to the plea, Parra conceded that she did not provide formal notice

of her claims. She contended, however, that Cy-Fair ISD had actual notice of her

claims by virtue of employing the bus driver who had caused the accident, and thus

3
Cy-Fair ISD “was aware of some injury to Parra, property damage to Parra’s vehicle,

[Cy-Fair ISD’s] own fault, and Parra’s identity.” She further argued that another Cy-

Fair ISD employee—a police officer employed by the Cy-Fair ISD Police

Department—responded to the accident, investigated it, and wrote a report about the

investigation.

Parra’s plea response relied on a Texas Peace Officer’s Crash Report, which

reflects that an investigator with the Cy-Fair ISD Police Department arrived at the

location of the accident within fifteen minutes after it occurred. According to the

report, the “small micro-school bus” was travelling behind Parra in the same lane

when Parra “stopped for a red[-]light traffic signal” at an intersecting street, but the

bus driver “was not able to stop in time and struck” the vehicle Parra was driving.1

The report listed Cy-Fair ISD as the owner of the bus. The report also noted that a

third-party individual—not Parra—owned the vehicle that Parra was driving.

The report stated that, in the officer’s opinion, the accident resulted in at least

$1,000 worth of damage “to any one person’s property,” but the report did not

specify which property was damaged. The report also stated that there were “[n]o

1
An attendant was riding as a passenger in the bus when the accident occurred, but
the attendant is not a party to these proceedings. Parra did not have a passenger in
her car.

4
injuries related to this crash.” Next to Parra’s name, the reporting officer marked a

box labelled “Injury Severity” with “N,” indicating that Parra was “Not Injured[.]”2

Cy-Fair ISD filed a reply disputing that it had actual notice of Parra’s claims.

It argued that the police report did not give actual notice of the claims because it

stated that no one was injured, that Parra specifically was not injured, and that Parra

did not own the vehicle she was driving.

Parra filed a sur-reply raising the same arguments that she raised in her plea

response, but she did not rely on any additional evidence. The trial court denied the

plea to the jurisdiction. This interlocutory appeal followed.

Governmental Immunity

In a single issue on appeal, Cy-Fair ISD contends that it has governmental

immunity from suit, and the trial court therefore lacked subject-matter jurisdiction,

because Parra did not provide timely formal or actual notice of her claims. The

parties’ dispute focuses on whether Parra’s sole jurisdictional evidence—the police

report—gave Cy-Fair ISD actual notice of Parra’s claims for personal injury and

property damage that she asserts in this lawsuit.

2
The police report exhibit attached to Parra’s plea response did not define injury
severity “N.” However, in its reply, Cy-Fair ISD attached a copy of the police report
accompanied by a “Texas Peace Officer’s Crash Report—Code Sheet” providing
definitions for various codes corresponding to the codes used in the police report.
Relevant here, the code sheet defined injury severity “N” as “Not Injured.” Parra
does not dispute that this definition applies to the police report.

5
A. Standard of Review

Governmental immunity from suit defeats a trial court’s subject-matter

jurisdiction, and thus immunity may be raised in a plea to the jurisdiction. Tex. Dep’t

of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 225–26 (Tex. 2004). A party may

appeal from an interlocutory order granting or denying a governmental unit’s plea

to the jurisdiction. TEX. CIV. PRAC. & REM. CODE § 51.014(a)(8). Whether a court

has subject-matter jurisdiction is a question of law that we review de novo. Miranda,

133 S.W.3d at 228; see Reyes v. Jefferson Cnty., 601 S.W.3d 795, 798 (Tex. 2020)

(“Notice is a prerequisite to subject-matter jurisdiction under the TTCA, and as such,

presents a question of law we review de novo.”).

When a plaintiff sues a governmental entity, the plaintiff bears the burden to

affirmatively establish the trial court’s jurisdiction by asserting a valid waiver of

immunity. Heckman v. Williamson Cnty., 369 S.W.3d 137, 150 (Tex. 2012). A plea

by a governmental entity raising its immunity from suit “may challenge the

pleadings, the existence of jurisdictional facts, or both.” Alamo Heights Indep. Sch.

Dist. v. Clark, 544 S.W.3d 755, 770 (Tex. 2018). If a plea challenges the pleadings,

we determine whether the plaintiff has alleged facts affirmatively demonstrating the

court’s jurisdiction, which is a question of law that we review de novo. Miranda,

133 S.W.3d at 226. We construe the pleadings liberally in the plaintiff’s favor and

look to the intent of the pleading. Id.

6
We are not limited to the pleadings, however, and we may consider

jurisdictional evidence submitted by the parties. Id. We “must do so when necessary

to resolve the jurisdictional issues raised.” Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d

547, 555 (Tex. 2000). When the jurisdictional issue is not intertwined with the merits

of the claims, the trial court—not the factfinder—resolves factual disputes, and we

must defer to the trial court’s express or implied factual findings so long as they are

supported by sufficient evidence. Worsdale v. City of Killeen, 578 S.W.3d 57, 66

(Tex. 2019). But if the jurisdictional evidence is undisputed, as here, whether the

evidence establishes jurisdiction is a question of law that we review de novo. City of

San Antonio v. Tenorio, 543 S.W.3d 772, 776 (Tex. 2018); Miranda, 133 S.W.3d at

226; see Worsdale, 578 S.W.3d at 66 (stating that actual notice can often be

determined as matter of law, even “when subjective awareness must be proved, if at

all, by circumstantial evidence”) (quoting Tex. Dep’t of Crim. Just. v. Simons, 140

S.W.3d 338, 348 (Tex. 2004)).

B. Notice of a Claim Under the TTCA

Governmental units, including school districts like Cy-Fair ISD, are generally

immune from suits for damages unless the legislature has waived immunity.3 Univ.

of Tex. Sw. Med. Ctr. at Dallas v. Est. of Arancibia, 324 S.W.3d 544, 546 (Tex.

3
The parties do not dispute that Cy-Fair ISD is a governmental unit under the TTCA.

7
2010); TEX. CIV. PRAC. & REM. CODE § 101.001(3)(B) (defining “governmental

unit” to include school districts). The TTCA provides a limited waiver of immunity

from suit in certain circumstances, including suits for property damage and personal

injury arising from a governmental employee’s negligent operation or use of a

motor-driven vehicle. TEX. CIV. PRAC. & REM. CODE § 101.021(1); Est. of Arancibia,

324 S.W.3d at 546 (stating that TTCA waives immunity from suit “to the extent of

liability created by [the Act]”) (quoting TEX. CIV. PRAC. & REM. CODE § 101.025(a)).

Section 101.101, which is at issue in this case, requires timely notice of claims

against a governmental unit:

(a) A governmental unit is entitled to receive notice of a claim
against it under this chapter not later than six months after the
day that the incident giving rise to the claim occurred. The notice
must reasonably describe:
(1) the damage or injury claimed;
(2) the time and place of the incident; and
(3) the incident.
****
(c) The notice requirements provided or ratified and approved by
Subsections (a) and (b) do not apply if the governmental unit has
actual notice . . . that the claimant has received some injury, or
that the claimant’s property has been damaged.

TEX. CIV. PRAC. & REM. CODE § 101.101(a), (c). Formal notice under subsection (a)

is the general notice rule, while actual notice under subsection (c) is an exception to

the general rule. See id.; Worsdale, 578 S.W.3d at 76 (“Structurally and lexically,

8
the Legislature manifested its intent that section 101.101(c) serve as an exception to

section 101.101(a) and (b)’s formal-notice requirements.”). It is well established that

notice under section 101.101 is a jurisdictional prerequisite to filing a suit against a

governmental entity under the TTCA. Reyes, 601 S.W.3d at 798; Worsdale, 578

S.W.3d at 59 (citing TEX. GOV’T CODE § 311.034).

The Texas Supreme Court has long held that the actual-notice exception

requires a governmental unit’s “subjective awareness” of its “alleged fault producing

or contributing to the death, injury, or property damage,” meaning “fault as

ultimately alleged by the claimant.” Worsdale, 578 S.W.3d at 59 (quoting Simons,

140 S.W.3d at 339, 347–48, and Cathey v. Booth, 900 S.W.2d 339, 341 (Tex. 1995)

(per curiam)). Actual notice requires the governmental unit to have “knowledge of

(1) a death, injury, or property damage; (2) the governmental unit’s alleged fault

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

identity of the parties involved.” Id. at 63 (quoting Cathey, 900 S.W.2d at 341).

Actual notice must provide the governmental unit with the same information that it

would have had if the plaintiff had provided formal notice under subsection (a).

Simons, 140 S.W.3d at 347; see TEX. CIV. PRAC. & REM. CODE § 101.101(a)

(requiring notice reasonably describing damage or injury claimed, time and place of

incident, and incident).

9
Mere knowledge that an accident occurred, without more, does not establish

a governmental unit’s subjective knowledge of its alleged fault in producing or

contributing to claims of personal injury or property damage. Worsdale, 578 S.W.3d

at 72 (stating that “mere knowledge that something happened somewhere to

someone or something would hardly ever” constitute actual notice). Nor is it

“enough that a governmental unit should have investigated an incident as a prudent

person would have, or that it did investigate, perhaps as part of routine safety

procedures, or that it should have known from the investigation it conducted that it

might have been at fault.” Id. at 63–64 (quoting Simons, 140 S.W.3d at 347–48); see

Tenorio, 543 S.W.3d at 776.

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

claims to enable a governmental entity to gather information necessary to guard

against unfounded claims, settle claims, and prepare for trial. Worsdale, 578 S.W.3d

at 63; Cathey, 900 S.W.2d at 341. If “a governmental unit is not subjectively aware

of its fault [as ultimately alleged], it does not have the same incentive to gather

information that the statute is designed to provide, even when it would not be

unreasonable to believe that the governmental unit was at fault.” Worsdale, 578

S.W.3d at 64 (quoting Simons, 140 S.W.3d at 348).

10
C. Analysis

Cy-Fair ISD challenges both the pleadings and the jurisdictional evidence

regarding notice of Parra’s claims. See Alamo Heights, 544 S.W.3d at 770 (stating

that governmental unit may raise immunity from suit by challenging pleadings,

existence of jurisdictional facts, or both).

Parra’s petition does not expressly state that Cy-Fair ISD had notice of her

claims. But Parra did allege that Cy-Fair ISD’s employee negligently operated the

school bus which caused bodily injury to Parra and damage to her vehicle. See TEX.

CIV. PRAC. & REM. CODE § 101.021(1)(A). We construe pleadings liberally, and Cy-

Fair ISD does not specifically argue how or why these factual allegations do not

sufficiently allege notice of Parra’s claims. See Miranda, 133 S.W.3d at 226 (stating

that plaintiff must allege facts affirmatively demonstrating jurisdiction).

In any event, the focus of the parties’ dispute is not on the pleadings but on

the existence of jurisdictional facts. See Alamo Heights, 544 S.W.3d at 770. The

parties primarily dispute whether a police report completed shortly after the accident

provided Cy-Fair ISD with actual notice of Parra’s claims against it. Reviewing

courts are “not required to look solely to the pleadings but may consider evidence

and must do so when necessary to resolve the jurisdictional issues raised.” Blue, 34

S.W.3d at 555; see also Miranda, 133 S.W.3d at 226–27 (stating that, in considering

whether plaintiff met burden to demonstrate jurisdiction, courts consider allegations

11
in petition and evidence relevant to jurisdictional issue). Because we cannot resolve

the jurisdictional issue without considering the police report, we must go beyond the

pleadings and consider the jurisdictional evidence.

1. Formal Notice

Cy-Fair ISD first argues that it did not receive formal notice from Parra within

six months of the accident. See TEX. CIV. PRAC. & REM. CODE § 101.101(a).

Cy-Fair ISD’s plea to the jurisdiction relied on an affidavit from its general

counsel denying that it received formal notice of Parra’s claims. According to the

affidavit, the general counsel received and processed all claim notices for Cy-Fair

ISD during the relevant time period. Counsel diligently searched Cy-Fair ISD’s

records for notice of Parra’s claims but was unable to find any such notice. See City

of Houston v. Miller, No. 01-19-00450-CV, 2019 WL 7341666, at *5 (Tex. App.—

Houston [1st Dist.] Dec. 31, 2019, no pet.) (mem. op.) (concluding that city lacked

formal notice of plaintiff’s claims based on uncontroverted affidavit denying that

city received timely formal notice); City of San Antonio v. Cervantes, 521 S.W.3d

390, 395 (Tex. App.—San Antonio 2017, no pet.) (concluding that city lacked

formal notice of plaintiff’s claims allegedly resulting from motor-vehicle accident

based on city claims manager’s uncontroverted affidavit stating that his job duties

included reviewing notices of claims received by city, he searched city’s records for

notice of plaintiff’s claims, and he found notice was not received timely by city).

12
Parra did not controvert this affidavit. Nor does she argue on appeal that she

provided timely formal notice of her claims. We therefore conclude that Cy-Fair ISD

did not have formal notice of Parra’s claims under section 101.101(a) of the TTCA.

2. Actual Notice

The parties dispute whether Cy-Fair ISD had actual notice under section

101.101(c) of Parra’s claims from a police report concerning the accident. Cy-Fair

ISD argues that the report did not provide actual notice of Parra’s personal injury

claims because it stated that no one was injured. Cy-Fair ISD further argues that the

report was not actual notice of Parra’s property damage claims because it stated that

a third-party individual owned the car Parra was driving and does not indicate that

any of Parra’s property was damaged.

Parra responds that Cy-Fair was objectively aware of its fault in causing the

accident based on the police report, and therefore it had actual notice of her claims.

She further argues that “if [Cy-Fair ISD] had acted as a prudent entity, it could have

ascertained its potential liability because of its obvious role in the accident,” and

therefore Cy-Fair ISD had actual notice of her claims.

The sole evidence of actual notice is a police report completed by a Cy-Fair

ISD law enforcement officer who responded to the accident shortly after it occurred.

According to the report, Cy-Fair ISD’s school bus was travelling directly behind

13
Parra’s vehicle. When Parra stopped at a red light, the bus driver “was not able to

stop in time and struck” the vehicle Parra was driving.

The report stated that there were “[n]o injuries related to this crash,” and it

specifically indicated that Parra was “Not Injured[.]” The report also reflected the

officer’s opinion that the crash resulted in at least $1,000 worth of damage “to any

one person’s property,” although it did not specify whose property was damaged.

The report stated that a third-party individual owned the vehicle Parra was driving.

We agree with Cy-Fair ISD that this report does not provide actual notice of

Parra’s claims for personal injury or property damage. To meet the actual-notice

exception under section 101.101(c), a governmental unit must have “actual notice”

that “the claimant has received some injury[] or that the claimant’s property has been

damaged.” TEX. CIV. PRAC. & REM. CODE § 101.101(c). The Texas Supreme Court

has construed the actual-notice provision in section 101.101(c) as requiring

knowledge of (1) death, injury, or property damage; (2) the governmental unit’s

alleged fault in producing or contributing to the death, injury, or property damage;

and (3) the identity of the parties involved. Worsdale, 578 S.W.3d at 63. Actual

notice requires that the governmental unit have “subjective awareness” of its “fault

as ultimately alleged by the claimant” in “producing or contributing to [a] death,

injury, or property damage.” Id. at 59 (quoting Simons, 140 S.W.3d at 339, 347–48,

and Cathey, 900 S.W.2d at 341). Mere knowledge that an accident occurred does not

14
show subjective awareness of personal injury or property damage resulting from the

accident. Id. at 72.

The police report does not establish that Cy-Fair ISD was subjectively aware

that it may be responsible for Parra’s claims as ultimately alleged in this lawsuit.

Parra asserts a claim against Cy-Fair ISD for personal injury, but the police report

stated that there were “[n]o injuries related to this crash” and, specifically, that Parra

was “Not Injured[.]” Because the report affirmatively indicates that Parra was not

injured, it does not provide “actual notice” that “the claimant has received some

injury . . . .” See TEX. CIV. PRAC. & REM. CODE § 101.101(c) (emphasis added). The

report does not impart a key piece of information required to show actual notice: that

any injury occurred. See id.; Worsdale, 578 S.W.3d at 63 (stating that actual notice

requires, among other things, knowledge of injury). The report merely states that an

accident occurred, which is insufficient to show subjective awareness of Cy-Fair

ISD’s fault as Parra ultimately alleges in producing or contributing to her claimed

personal injury. See Worsdale, 578 S.W.3d at 59.

Parra also asserts a claim for property damage, but the police report did not

state that Parra owned any property involved in the accident. Rather, it stated that a

third-party individual owned the vehicle Parra was driving. Nothing in the report

provides “actual notice” that “the claimant’s property has been damaged.” See TEX.

CIV. PRAC. & REM. CODE § 101.101(c) (emphasis added). While Cy-Fair ISD may

15
have known from the police report that the third-party individual had a potential

claim for property damage, the report does not indicate that Cy-Fair ISD was

subjectively aware that Parra had a claim for property damage. See id. Thus, while

the report may impart knowledge of some property damage, it does not identify Parra

as the owner of the property who might have a claim for that damage. See Worsdale,

578 S.W.3d at 63 (stating that actual notice requires, among other things, knowledge

of property damage and identity of parties involved).

The police report is the sole evidence that both parties rely on to support their

arguments concerning actual notice. Thus, the evidence of actual notice is

uncontroverted and undisputed. Whether this undisputed evidence establishes

jurisdiction is a question of law, not a question of fact. See Tenorio, 543 S.W.3d at

776; Miranda, 133 S.W.3d at 226; see also Worsdale, 578 S.W.3d at 66 (stating that

actual notice can often be determined as matter of law even “when subjective

awareness must be proved, if at all, by circumstantial evidence”) (quoting Simons,

140 S.W.3d at 348).

At best, the police report shows that an accident occurred and caused some

property damage to a vehicle owned by a third-party but did not result in injury to

any person. This is insufficient to show actual notice of the claims for personal injury

and property damage that Parra ultimately alleges against Cy-Fair ISD. See

Worsdale, 578 S.W.3d at 65 (stating that “there must be subjective awareness

16
connecting alleged governmental conduct to causation of an alleged injury to person

or property in the manner ultimately asserted” by claimant). Without any evidence

showing that Parra was injured or that her property was damaged, Cy-Fair ISD did

not have actual notice of her claims as she ultimately alleged here. Uncertainty “is

inherent in the actual-notice exception,” but “[c]ertainty can be achieved simply by

giving formal notice under section 101.101(a) and (b).” Id. at 76.

Notice enables governmental entities to gather information necessary to guard

against unfounded claims, settle claims, and prepare for trial. Id. at 63; Cathey, 900

S.W.2d at 341. This purpose benefits governmental units, not injured claimants.

Without any evidence that Parra was injured or her property damaged, Cy-Fair ISD

had no incentive to gather information necessary to defend itself in this lawsuit. See

Worsdale, 578 S.W.3d at 64 (stating that if government is not subjectively aware of

fault as ultimately alleged, “it does not have the same incentive to gather information

that the statute is designed to provide, even when it would not be unreasonable to

believe that the governmental unit was at fault”) (quoting Simons, 140 S.W.3d at

348). Cy-Fair ISD’s “mere knowledge that something happened somewhere to

someone or something” did not alert it to its “alleged wrongdoing and the necessity

of mounting a defense.” See id. at 72.

In addition to the well-established precedent cited above, our decision is

supported by two recent opinions from this Court. In Jones v. Board of Trustees of

17
Galveston Wharves, the plaintiff slipped and fell at a port terminal. 605 S.W.3d 641,

642 (Tex. App.—Houston [1st Dist.] 2020, no pet.). We held that the “lone

evidence” of actual notice—an uncontroverted police report stating that “no injuries

were reported”—conclusively proved lack of actual notice under section 101.101(c)

of the plaintiff’s claim of personal injury. Id. at 642–45.

In City of Houston v. Musyimi, we considered whether a police report stating

that no injuries resulted from a motor-vehicle accident constituted actual notice of a

personal injury claim under the TTCA. See No. 01-21-00670-CV, 2022 WL

2919724 (Tex. App.—Houston [1st Dist.] July 26, 2022, no pet.) (mem. op.). After

an on-duty city police officer rear-ended Musyimi’s car, another law enforcement

officer arrived, completed a Texas Peace Officer’s Crash Report, and took

photographs of the vehicles involved in the accident. Id. at *1, 5. The report stated

that the city police officer failed to control his speed and struck Musyimi’s car. Id.

at *1. The report noted some damage to Musyimi’s car, but it stated that no injuries

resulted from the accident and stated specifically that Musyimi was not injured. Id.

Musyimi sued the city under the TTCA, and the city filed a motion for partial

summary judgment arguing that it did not have notice of Musyimi’s personal injury

claim. Id. at *2. Musyimi relied on the police report and photographs of damage to

the vehicles involved in the accident to establish that the city had actual notice of the

claims. Id. On appeal, this Court determined that this undisputed evidence did not

18
show that the city had actual notice of the alleged personal injury claims. Id. at *7.

We noted that “[p]otential or constructive notice is not enough,” and instead we

followed the well-established rule that a governmental unit’s mere awareness of an

accident does not show it had subjective knowledge—i.e., actual notice—of any

personal injuries sustained in the accident. Id. at *5 (quoting Jones, 605 S.W.3d at

643). Accordingly, the Court held that the police report and the photographs

affirmatively showed that Musyimi was not injured, and therefore the city lacked

actual notice of his personal injury claims. Id. at *7; see also Cervantes, 521 S.W.3d

at 395–97 (concluding that police report of motor-vehicle accident stating property

damage resulted from accident but no injuries were sustained did not constitute

actual notice of personal injury claim because there was “no suggestion in the

evidence before the trial court that Cervantes was visibly injured”).

As in Jones and Musyimi, the sole undisputed evidence in this case does not

establish that Parra was injured as a result of the accident. Nor does the undisputed

evidence establish that any of Parra’s property was damaged. Parra did not present

any evidence controverting the police report. Thus, Jones and Musyimi support our

conclusion that the police report was not actual notice of Parra’s claims as a matter

of law.

Parra argues on appeal that the standard for actual notice is objective

awareness of fault in causing an accident, and she argues that “if [Cy-Fair ISD] had

19
acted as a prudent entity, it could have ascertained its potential liability because of

its obvious role in the accident.” We disagree.

In support of this argument, Parra relies on the Fort Worth Court of Appeals’

opinion in City of Wichita Falls v. Jenkins, 307 S.W.3d 854 (Tex. App.—Fort Worth

2010, pet. denied). There, a city police officer rear-ended the Jenkins family’s

vehicle while it was stopped at a red light, and the family sued the city. Id. at 856.

The Jenkins family sent the city timely written notice of their claims, which the court

concluded was sufficient formal notice under TTCA section 101.101(a). Id. at 861.

Despite having held that the city had formal notice, the court nevertheless

analyzed whether the city also had actual notice of the family’s claims from a police

report. Id. The report described the incident, identified the parties, and noted

property damage of at least $1,000, but it did not note any injury to anyone involved

in the accident. Id. The court stated that “governmental entities have actual notice to

the extent that a prudent entity could ascertain its potential liability stemming from

an incident, either by conducting further investigation or because of its obvious role

in contributing to the incident.” Id. at 858. Although the report did not reflect any

injury to anyone involved in the accident, the court held that it nevertheless

constituted actual notice of the Jenkins family’s personal injury claims under the

TTCA. Id. at 861.

20
Parra’s reliance on Jenkins is misplaced. As an initial matter, it was

unnecessary for the court to consider whether the city had actual notice of claims

after concluding that the city had formal notice. Actual notice is an exception to

formal notice, and thus a governmental unit need not have actual notice if it has

formal notice. See Worsdale, 578 S.W.3d at 76. The court’s unnecessary analysis of

the actual-notice issue constitutes obiter dicta, which is not binding as precedent. See

Seger v. Yorkshire Ins. Co., 503 S.W.3d 388, 399 (Tex. 2016); Varner v. City of

Andrews, 657 S.W.3d 658, 663 (Tex. App.—El Paso 2022, pet. denied) (stating that

Jenkins court’s holding that city had formal notice rendered its subsequent

discussion of actual notice unnecessary to decision); City of Houston v. McGowen,

No. 14-13-00415-CV, 2014 WL 2039856, at *7 (Tex. App.—Houston [14th Dist.]

May 15, 2014, no pet.) (mem. op.) (“[T]he Jenkins court’s statements regarding

actual notice are not necessary to the disposition of the appeal and are obiter dicta.”).

More importantly, however, the Jenkins court’s analysis is contrary to Texas

Supreme Court precedent and this Court’s decision in City of Houston v. Musyimi.

The Texas Supreme Court has expressly rejected a standard in which actual notice

exists if a governmental unit could have learned of its possible fault through further

investigation. See Simons, 140 S.W.3d at 346–48 (“Cathey cannot fairly be read to

suggest that a governmental unit has actual notice of a claim if it could or even

should have learned of its possible fault by investigating the incident.”). The Simons

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court stated that such a broad interpretation of section 101.101(c) would defeat the

purpose of notice by making actual notice the rule and formal notice the exception,

thereby depriving governmental units of notice of most incidents and instead

requiring them to investigate all incidents. Id. at 347.

In 2019, the Texas Supreme Court reaffirmed this reasoning, stating that “[i]t

is not enough that a governmental unit should have investigated an incident as a

prudent person would have, or that it did investigate, perhaps as part of routine safety

procedures, or that it should have known from the investigation it conducted that it

might have been at fault.” Worsdale, 578 S.W.3d at 63–64 (quoting Simons, 140

S.W.3d at 347–48); see Tenorio, 543 S.W.3d at 776. Mere objective awareness of

potential fault is not the standard for actual notice. Rather, the “standard is

necessarily subjective, because lack of formal notice is excused only by actual, not

constructive, notice.” Worsdale, 578 S.W.3d at 65. Contrary to Jenkins, “[a]ctual

notice means the governmental unit is subjectively aware that it may be responsible

for death, injury, or property damage in the manner ultimately alleged by the

claimant.” Id. at 77; see Simons, 140 S.W.3d at 347–48.

A post-Jenkins panel of the Fort Worth Court of Appeals acknowledged that

the Jenkins court’s analysis “regarding notice of injury from the fact of an accident”

was dicta and contrary to the Texas Supreme Court’s decision in Simons. City of

Arlington v. Evans, No. 02-22-00160-CV, 2022 WL 5240524, at *4 n.7 (Tex.

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App.—Fort Worth Oct. 6, 2022, no pet.) (mem. op.). Several of our sister courts of

appeals have likewise rejected the Jenkins court’s actual-notice analysis. See, e.g.,

McGowen, 2014 WL 2039856, at *7 (declining to follow Jenkins because its actual-

notice legal standard “has been disapproved by the Supreme Court of Texas” in

Simons); see also Cervantes, 521 S.W.3d at 396 n.2.

Finally, Parra argues that a fact issue exists concerning ownership of the car

she was driving, and therefore we should defer to the trial court’s implied finding on

this disputed factual issue. See Worsdale, 578 S.W.3d at 66 (stating that, when

jurisdictional issue is not intertwined with merits of claim, trial court resolves factual

disputes and reviewing court should defer to trial court’s express or implied findings

that are supported by evidence). Parra relies on Oswalt v. Hale County to support

her argument. See No. 07-21-00050-CV, 2022 WL 93613 (Tex. App.—Amarillo

Jan. 10, 2022, no pet.) (mem. op.).

In Oswalt, the Oswalt family was towing a trailer behind their car when a

county sheriff’s deputy rear-ended the trailer and damaged it. Id. at *1. At the time,

the Oswalts had purchased the trailer but had not completed registering it in their

name. Id. A police report completed after the accident reflected that a third-party

owned the trailer. Id. The Oswalts sued the county, and the county filed a plea to the

jurisdiction based on lack of notice that the Oswalts owned the trailer and therefore

sustained damage to their property as they claimed. Id.

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In response to the plea, the Oswalts introduced evidence showing that they

owned the trailer despite the representation in the police report that it was owned by

a third-party. Id. at *5. In deposition testimony, the sheriff’s deputy involved in the

accident testified that he caused damage to the Oswalts’ property. Id. There was also

evidence that one of the Oswalts stated at the scene of the accident that he had

attempted to register the trailer. Id. The Oswalt court concluded that these statements

were sufficient indicia of the Oswalts’ ownership of the trailer to put the county on

notice that the Oswalts owned the trailer, thereby putting the issue of the trailer’s

ownership into dispute. Id. Because a fact dispute existed, the court affirmed the trial

court’s denial of the county’s plea on the Oswalts’ claim for property damage. Id.

Unlike in Oswalt, Parra did not present any evidence of her ownership of the

car. For example, she did not present any evidence that she had recently purchased

the car she was driving but had not completed its registration in her name or that she

told the investigating officer or the bus driver that she owned the car. There is no

evidence controverting the police report. See Tenorio, 543 S.W.3d at 776 (stating

that whether governmental unit has actual notice is question of law when evidence

is undisputed); see also Worsdale, 578 S.W.3d at 66 (stating that actual notice can

often be determined as matter of law, even “when subjective awareness must be

proved, if at all, by circumstantial evidence”) (quoting Simons, 140 S.W.3d at 348).

We conclude that the undisputed jurisdictional evidence does not raise a fact issue

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on whether Parra owned the car she was driving and thus whether her property was

damaged in the accident.

In sum, the undisputed jurisdictional evidence establishes as a matter of law

that Cy-Fair ISD did not receive notice of Parra’s claims of personal injury and

property damage as required by TTCA section 101.101. Therefore, we hold that Cy-

Fair ISD retained its governmental immunity from suit and the trial court

consequently lacked subject-matter jurisdiction over the case. We sustain Cy-Fair

ISD’s sole issue.

Conclusion

We reverse the trial court’s interlocutory order denying the plea to the

jurisdiction, and we render judgment granting Cy-Fair ISD’s plea to the jurisdiction

and dismissing the case for want of jurisdiction.

April L. Farris
Justice

Panel consists of Justices Hightower, Rivas-Molloy, and Farris.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9402936. Public record. Not legal advice.