IN THE SUPREME COURT OF TEXAS
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No. 02-0479
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Texas Department of Criminal
Justice, Petitioner,
v.
Brian Edward Simons,
Respondent
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On Petition for Review from the
Court of Appeals for the Ninth District of
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Argued
Justice Hecht delivered the opinion of the Court.
In Cathey v. Booth, we construed section 101.101 of the Texas Tort Claims Act[1] to provide that a governmental unit is entitled to receive formal, written notice of a claim against it within six months of the incident from which the claim arises unless it has actual notice of the claim, including knowledge of its Aalleged fault producing or contributing to the death, injury (ie: auto injury), or property damage@.[2] The courts of appeals have differed over exactly what this knowledge of alleged fault entails, and we granted the petition for review in this case to revisit the issue. Here, the court of appeals held that petitioner=s investigation of an accident (ie: auto accident) provided it with the required knowledge and therefore affirmed the trial court=s denial of petitioner=s plea to the jurisdiction.[3]
In another case decided today, we hold that lack of notice does not deprive the trial court of subject matter jurisdiction.[4] Although the parties in this case have not raised that issue, we nevertheless conclude that because lack of notice cannot be made the basis of a plea to the jurisdiction in the trial court, the court of appeals had no jurisdiction over this interlocutory appeal and should have dismissed it. Accordingly, while we resolve the issue the parties have presented, we reverse the judgment of the court of appeals and render judgment dismissing the appeal.
I
While incarcerated at the Terrell Unit of the Texas Department of Criminal Justice (TDCJ), Brian Simons and other inmates were assigned the work of installing a guardrail around a natural gas manifold that serviced the facility. They were digging postholes with a tractor-mounted auger driven by the tractor=s power take-off (a rotating splined shaft extending from the body of the tractor and powered by the engine through the transmission, to which the drive shaft of the auger was coupled). When the auger got stuck boring into the ground, the power take-off was disengaged while Simons attempted to back the auger out of the ground by using a 48-inch pipe wrench to turn the drive shaft in reverse. By mistake, the power take-off was re-engaged with the heavy wrench still gripping the drive shaft, causing the wrench to swing around sharply, striking Simons in the head. It is not clear whether the tractor operator failed to warn Simons to stand clear of the auger, or whether Simons did not hear the warning because of a hearing impairment, or whether he was warned and simply failed to comply. He was taken to the hospital, where he underwent surgery the same day to repair multiple orbital and facial fractures and a laceration of his right eye. Simons lost the eye as well as the hearing in his right ear.
TDCJ immediately investigated the incident. Within hours it took statements from the work supervisor, Ron Canon, and three inmates who were at the scene. Canon filed this brief official report:
On
His statement to the prison safety officer, Harris Jackson, expanded somewhat:
On
Canon also filed an Aoffense report@ citing Simons for violating prison rules by failing to Astand clear of digger@ as ordered.
One of the inmates working with Canon and Simons, Earl Huff, gave the following statement:
On Tuesday,
Another, Daniel Suire, was briefer:
I Daniel Suire TDC 631261 was at
the scene when the accident (ie: auto accident) happened.
Mr. Canon told all of us to get away.
I was showing Mr. Canon the P.T.O. turn on switch. The next thing I heard was a loud pop and when
I looked back inmate Simons was on the ground.
The third, Michael Thomas, was briefer still:
Mr. Canon told us all to get back from the tractor so I went
back to my usual job. Then when I turned
I saw inmate Simons laying on the ground.
The next day, TDCJ took brief statements from
three corrections officers who responded to the incident, but none shed any
light on how it occurred. On
Synopsis: Inmate Simons, Brian TDCJ# 614989 received major
facial fractures right side face under eye, while working in maintenance squad
digging post hole with tractor and augger [sic].
Narrative: Inmate Simons, Brian TDCJ# 614989 reported to work
at maintenance on
Recommendations: All employees and inmates in maintenance
department be made aware of this accident (ie: auto accident), and what could have been done to
prevent simular [sic] accidents from happening and
inmate Simons recieve discipilnary
[sic] for violation of safety policy and procedures.
Corrective Action: Discipilnary
[sic] case has been written by maintenance supervisor and awareness training
will be held on
As noted, Simons was cited and disciplined for misconduct in failing to stand clear of the auger as ordered.
On September 2, three days after the incident, Jackson and Belvin audiotaped an interview with Simons at the hospital. At the time, Simons was taking Vicodin, a prescription narcotic pain-reliever. We quote the relevant portions of the interview:
SIMONS: We was digging postholes for the barricade to go
around the gas well. The guy that was
operating the tractor was kinda inexperienced, he was
kinda new at it.
He buried the auger in the ground, which caused the front of the tractor
to lift up. I asked Mr. Canon and them
to go get me a pipe wrench =cause C I=m a farm boy in the world C that is
how you get them un-stuck in the world, and I was going to back the auger off
and get it up off the ground. The boy
that was operating the tractor C evidently C
accidentally, he had to hit the PTO or something, and it caused the pipe wrench
to hit me. That is the only way that it
could have happened. If nobody C if he hadn=t
hit that PTO, or something like that would have happened, the wrench wouldn=t have hit me C because
you can back it off by hand, and turn the wrench backwards and back it off by
hand. That=s how we
do it in the world. To me, it wasn=t
no boss=s
fault. I don=t think
it was my fault. I don=t think
it was the tractor driver=s
fault. I just think it is one of those
things that just happened, in my opinion.
You know, I don=t
hold no grudges against nobody. I don=t blame
nobody for it. It is probably just as
much my fault, getting down there and doing it, than it was anybody else.
SIMONS: So, it is just one of them things that C that=s the
only way I was taught all my life how to get them un-stuck, and that was the
way I was trying to get it un-stuck, and just somebody made a mistake. That=s all there was to it. I don=t want nobody getting no trouble or nothing
behind that C
losing no good time C
because it=s
just a mistake. You know, a mistake is a
mistake.
SIMONS: I remember putting the wrench on the auger and
turning it to my right to back it off, and that is the last thing I
remember. The next thing I remember, I
woke up and I was in the operating room.
They was talking to me in the operating room. You know, between there and the time of the
operating room, I had no recall of what happened.
* * *
BELVIN: Do you know who engaged the PTO C who did
the C
engaged the PTO?
SIMONS: The tractor boy was on the tractor. I don=t know whether he engaged it or
not. I can=t
honestly say that because I can=t remember if I seen anybody do it or
not. I really don=t
know. You know, I=m just
saying that because I know up here in my mind, that is the only way I could
have got hit with that wrench, is somebody did engage the PTO.
* * *
BELVIN: We are very
sorry that happened.
SIMONS: It=s like
that, Boss. I don=t hold
nothing against nobody. It could have
very well happened to somebody else.
BELVIN: We are just
trying to make sure if there was a procedure that was done, in doing that, that
we could bring it up and prevent it from ever happening this way again. And I know you would want to help us do that.
SIMONS: I sure would,
but I=m
just saying C
BELVIN: And I=m hoping you
would.
SIMONS: The point that
I want to stress in it was it wasn=t no boss
man=s
fault, you know. It wasn=t no
inmate=s
fault or nothing. It=s
something that just happened. I had on
my safety C
my welding safety glasses I wear every day, you know, and, of course, they are
not going to stop nothing like no pipe wrench that big. But I mean, as far as safety rules and
regulations that we abide by every day, everything was abided by. I don=t believe no boss did anything wrong,
or supervising an inmate were any kind of way wrong. I don=t believe that I did anything wrong,
nor did any other inmate. It=s just
one of them things that happened.
BELVIN: I want to ask
you one question, but think about this one.
Did you hear anybody make the comment, Astand clear@?
SIMONS: I don=t
remember.
BELVIN: Okay, that=s good.
SIMONS: I don=t
remember anything that was C had been said. I remember putting the wrench on there,
making one, maybe two turns with the wrench the opposite way on the auger to back
it off, that=s
it. The next thing I did, I woke up in
the operating room. That=s the
last thing I remember.
Simons did not mention the matter again to TDCJ
prior to filing suit (ie: auto accident lawsuit) on
We are concerned here only with the Department=s
realization of its possible culpability, that is, whether the Department
realized that it could be accused of negligence arising from the accident. In contrast to cases questioning whether the
governmental entity=s
treatment records revealed its deviation from the standard of care, in this
case the Department=s
safety officers conducted an extensive investigation of a serious injury (ie: auto injury) that
occurred while the inmates were operating motor‑driven machinery in a
supervised work detail. Reports were
prepared and promptly submitted to the unit=s safety committee. That notice, sufficient to put the Department
on inquiry of its possible fault, is demonstrated by the existence of the
safety review actually conducted.[7]
In dissent, Justice Gaultney argued that A[t]he required >actual notice= to the governmental entity is notice of a claim of fault, not simply notice of an accident.@[8] Not only did TDCJ lack the required notice before suit (ie: auto accident lawsuit) was filed, Justice Gaultney pointed out, ASimons affirmatively told the government he did not claim the government or anyone else was at fault.@[9]
Having concluded that TDCJ had actual notice of Simons=s claim, the court added that it Aneed not address whether the notice requirement is jurisdictional@[10] even though, as we shall explain, that issue determines whether the court of appeals had jurisdiction over this interlocutory appeal. Simons had not raised the issue either in the trial court or on appeal.
We granted TDCJ=s petition for review.[11] We have jurisdiction over this interlocutory appeal because of the dissent in the court of appeals.[12] We also have jurisdiction to determine whether the court of appeals had jurisdiction.[13]
II
Section 101.101 of the Texas Tort Claims Act states in pertinent part:
(a) A governmental unit is entitled to receive notice of a claim against
it under this chapter not later than six months after the day that the incident
giving rise to the claim occurred. The
notice must reasonably describe:
(1) the
damage or injury (ie: auto injury) claimed;
(2) the
time and place of the incident; and
(3) the
incident.
* * *
(c) The notice requirement[] provided . . . by
Subsection[] (a) . . . do[es] not apply if
the governmental unit has actual notice that death has occurred, that the
claimant has received some injury (ie: auto injury), or that the claimant=s
property has been damaged.[14]
We construed these provisions in Cathey v. Booth.[15] There, Jerry and Glenda Booth alleged that a county hospital=s negligent diagnosis and treatment of Glenda=s obstetric condition resulted in the stillborn delivery of their child. We stated that section 101.101(a) requires formal, written notice, which the Booths undisputedly did not give.[16] The Booths argued that such notice was excused by subsection (c) because the hospital had actual notice that injury and death had occurred, since the events of which the Booths complained all happened in the hospital and involved hospital personnel. We rejected the Booths= argument, holding that their literal reading of subsection (c) would defeat the statute=s purpose. We explained:
The purpose of the notice
requirement is to ensure prompt reporting of claims in order to enable
governmental units to gather information necessary to guard against unfounded
claims, settle claims, and prepare for trial.
We hold that actual notice
to a governmental unit requires 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. Our holding
preserves the purpose of the notice statute, and is consistent with the
holdings of the majority of the courts of appeals.[17]
The only evidence of (2) the Booths presented was the affidavit of a physician who testified that information in Glenda=s medical records showed that her Cesarean section was not performed when it should have been. We held that, Aas a matter of law, this information failed to adequately convey to the Hospital its possible culpability for mental and physical injuries to Glenda and Jerry Booth.@[18]
Simons argues that Cathey=s holding should apply only to hospitals and other such health care facilities which must deal with disease, injury, and death so regularly that the mere occurrence of such events is not likely to call the facility=s attention to any culpability on its part. While we certainly agree that hospitals are more likely to see injury because of the very nature of their business, nothing in section 101.101 suggests that there should be one rule for hospitals and a different one for other governmental units. The problems involved in identifying incidents that involve a governmental unit=s fault are common to hospitals but not unique to them. In each situation section 101.101 entitles the government to knowledge of its fault, whether by notice from the claimant or through the government=s own actual awareness of the facts.
The courts of appeals have interpreted Cathey=s requirement (2) to mean very different things. One view is that A[t]o have actual notice, the governmental unit must have the same information it would have had if the claimant had complied with the formal notice requirements.@[19] Certainly, when records or investigative reports give no indication that a governmental unit has been at fault in an incident, it has no actual notice.[20] A report of injury to an employee who has no duty to investigate the facts of an incident has been held not to give the employer actual notice.[21] But a hospital director=s awareness of an incident and potential liability issues has been held to raise a factual issue regarding actual notice.[22] Some courts, like the court of appeals in this case, have stated a broader view that the occurrence of an event may itself provide actual notice if fault is obvious or an investigation is triggered:
Actual notice may be imputed to a governmental unit when its
fault is obvious or an agent charged with a duty to investigate and report to
the unit receives notice of the three Cathey
elements. Thus, an incident that
triggers an investigation and accident report will impute such notice where
there is evidence to connect the accident to an action or omission by the
governmental unit such that it should have known of its potential culpability.[23]
Some courts have said that such an incident must be disruptive enough to call the governmental unit=s attention to its fault.[24] The broadest view is that an incident itself gives actual notice if it should trigger an investigation that would or could show the governmental unit at fault:
Actual notice is imputed to a governmental entity if it, or
one of its agents, is aware of facts and circumstances surrounding an accident
sufficient to put them on inquiry that, if pursued, would reveal its alleged or
possible fault producing or contributing to the injury. Governmental entities have actual notice
to the extent that a prudent entity could ascertain its potential liability
stemming from an incident, either by conducting a further investigation or
because of its obvious role in contributing to the incident.[25]
One court has expressed some criticism of the notice requirement:
we decline to foster litigiousness by forcing injured parties
to immediately retain legal counsel in order to preserve their claims in the
face of hyper-technical notice provisions.[26]
By holding in Cathey that Aactual notice to a governmental unit requires knowledge of . . . the governmental unit=s alleged fault producing or contributing to the death, injury, or property damage@, we did not mean that the governmental unit was required to know that the claimant had actually made an allegation of fault.[27] Such knowledge would be tantamount to the notice required by section 101.101(a), only less formal, making the Aactual notice@ exception in subsection (c) virtually insignificant. On the other hand, 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. Interpreted so broadly, subsection (c) would become the rule, leaving subsection (a) as the exception for situations when the governmental unit was wholly unaware that any incident had occurred at all. Governmental units would not be given notice of most incidents and would thus have some need to investigate them all, which, as we explained in Cathey, would defeat the purpose of the notice provision.
What we intended in Cathey by the second requirement for actual notice was that a governmental unit have knowledge that amounts to the same notice to which it is entitled by section 101.101(a). That includes subjective awareness of its fault, as ultimately alleged by the claimant, in producing or contributing to the claimed injury. If a governmental unit has this subjective awareness of fault, along with the other information to which it is entitled under section 101.101(a), then requiring formal, written notice in addition would do nothing to further the purpose of the statute C which is, Ato enable governmental units to gather information necessary to guard against unfounded claims, settle claims, and prepare for trial.@[28] It is not enough that a governmental unit should have investigated an incident as a prudent person would have, or that it did investigate, perhaps as part of routine safety procedures, or that it should have known from the investigation it conducted that it might have been at fault. If a governmental unit is not subjectively aware of its fault, it does not have the same incentive to gather information that the statute is designed to provide, even when it would not be unreasonable to believe that the governmental unit was at fault.
We recognize that the Legislature may determine the conditions for waiving sovereign immunity from suit, and that it could make formal notice an absolute requirement, if for no other reason than to achieve a measure of certainty in the matter. But it has not done so in section 101.101. The Aactual notice@ exception in subsection (c), as we read it, makes determining compliance with section 101.101 somewhat less certain. We have long held that actual notice is a fact question when the evidence is disputed.[29] In many instances, however, actual notice can be determined as a matter of law. There will, of course, be times when subjective awareness must be proved, if at all, by circumstantial evidence.[30] But this is not inconsistent with the purpose of section 101.101.
TDCJ argues that if by investigating an incident a governmental unit can open itself to suit, it will have a perverse incentive to ignore every incident until it receives formal notice of a claim. We think this argument is largely unfounded. Any incentive not to investigate so as to avoid liability is slight, since a governmental unit cannot acquire actual notice merely by conducting an investigation, or even by obtaining information that would reasonably suggest its culpability. The governmental unit must have actual, subjective awareness of its fault in the matter. Moreover, the risk of losing important information through delay may be a significant incentive to conduct an investigation.
It is not, of course, for us to determine whether section 101.101 is good policy, as one court has questioned.[31] That issue is for the Legislature. Our responsibility is to construe and apply the provision as the Legislature intended. For the reasons we have given, we hold that actual notice under section 101.101(c) requires that a governmental unit have knowledge of the information it is entitled to be given under section 101.101(a) and a subjective awareness that its fault produced or contributed to the claimed injury.
We need not determine whether TDCJ established that it lacked actual notice of Simons=s claim. As it happens, we decide today in another case[32] that a claimant=s failure to comply with section 101.101 does not deprive the trial court of subject matter jurisdiction. While compliance is no less mandatory, and a governmental unit is entitled to dismissal of the action for lack of notice, that right cannot properly be asserted in a plea to the jurisdiction from which an interlocutory appeal is allowed. Section 51.014(a)(8) allows an appeal from an interlocutory order that Agrants or denies a plea to the jurisdiction by a governmental unit@.[33] The reference to Aplea to the jurisdiction@ is not to a particular procedural vehicle but to the substance of the issue raised. Thus, an interlocutory appeal may be taken from a refusal to dismiss for want of jurisdiction whether the jurisdictional argument is presented by plea to the jurisdiction or some other vehicle, such as a motion for summary judgment.[34] By the same token, an interlocutory appeal cannot be taken from the denial of a plea to the jurisdiction that does not raise an issue that can be jurisdictional. Otherwise, a governmental unit could cloak its request for protection from discovery in the procedural guise of a plea to the jurisdiction and when it was denied, appeal. Since notice under section 101.101 is not jurisdictional,[35] an interlocutory appeal from the denial of a plea to the jurisdiction based on lack of such notice is not allowed.
It is important to note that the same result would not obtain if the issue raised could defeat the court=s subject matter jurisdiction, even if it did not do so in a particular case. For example, a governmental unit can appeal from an order denying a plea to the jurisdiction based on the assertion that the plaintiff=s claim does not involve the use of personal property under section 101.021 of the Tort Claims Act.[36] If the court of appeals agrees with the trial court that the use of personal property is involved, it should affirm the order rather than dismiss the appeal. Only when the issue raised cannot implicate subject matter jurisdiction must the interlocutory appeal be dismissed.
The court of appeals mistakenly believed that it was unnecessary to determine whether section 101.101 notice is jurisdictional. It can surely be forgiven the error when Simons did not raise the issue, either in his response to TDCJ=s plea to the jurisdiction in the trial court, or at any time in the court of appeals. Indeed, Simons has not raised the issue before this Court. Nevertheless, we are constrained, for reasons we have explained more fully elsewhere today,[37] to render the judgment the court of appeals should have rendered, which is to dismiss the appeal.
* * * * *
Accordingly, the judgment of the court of appeals is reversed and the appeal is dismissed.
Nathan L. Hecht
Justice
Opinion delivered: