Troylencia Wolf Anderson v. Waller County, Texas ( 2021 )

Opinion issued July 20, 2021
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-20-00097-CV
———————————
TROYLENCIA WOLF ANDERSON, Appellant
V.
WALLER COUNTY AND WALLER COUNTY SHERIFF’S
DEPARTMENT AND ITS UNKNOWN AGENTS, Appellees
On Appeal from the 506th District Court
Waller County, Texas
Trial Court Case No. 19-09-25771
MEMORANDUM OPINION
Appellant, Troylencia Wolf Anderson, challenges the trial court’s judgment
granting the amended plea to the jurisdiction of appellees, Waller County and Waller
County Sheriff’s Department and its Unknown Agents (collectively, “appellees”),
and dismissing her claims against appellees with prejudice in Anderson’s suit for
sexual assault, assault, intentional infliction of emotional distress, and negligence.
In two issues, Anderson contends that the trial court erred in granting appellees’
amended plea to the jurisdiction, dismissing her claims against appellees with
prejudice, and denying her motion for new trial.
We affirm.
Background
In her original petition, Anderson alleged that on or about October 19, 2014,
while incarcerated at the Waller County Jail, she was taken to her cell by an unknown
female jailor. The unknown female jailor took Anderson’s clothing and left
Anderson with only a blanket to use to cover herself. After receiving the blanket,
Anderson sat in the corner of her cell. Another jailor named Chris brought Anderson
a sandwich, water, milk, and mustard and mayonnaise packets. Anderson drank the
water and milk but could not recall if she ate the sandwich. Anderson noticed a
camera in the upper corner of her cell, and she smeared mayonnaise on the camera
lens “to block people from seeing her.” An unknown “lieutenant” then came into
Anderson’s cell and was “very angry over what [she] had done.” The lieutenant
removed the mayonnaise from the camera lens, while the jailor named Chris stood
by holding a taser.
After drinking the milk and water, Anderson “did not remember much.”
Anderson “felt like she blacked out.” She felt paralyzed and “could not move.”
2
Anderson “heard voices making comments about her breasts and body,” and she
“heard one jailor say[,] ‘he already got his monkey rolled up.’” Anderson alleged
that she was “drugged and sexually assaulted” while at the Waller County Jail. She
was released from the Waller County Jail on October 20, 2014.
Anderson brought claims against appellees for sexual assault, assault,
intentional infliction of emotional distress, and negligence. Anderson also asserted
that Waller County and Waller County Sheriff’s Department were vicariously liable
for the acts and omissions of the “on-duty jailor[s].”
Appellees answered, generally denying the allegations in Anderson’s petition
and asserting various defenses. Appellees also filed a plea to the jurisdiction,
arguing that the trial court lacked jurisdiction over Anderson’s claims because
appellees were entitled to governmental immunity and the Texas Tort Claims Act
(“TTCA”)1 did not waive that immunity. Appellees asserted that Anderson failed to
plead and prove that she had provided appellees with the TTCA-required notice of
her claims within six months of the day of the incident giving rise to Anderson’s
claims.2 Because the TTCA-required notice was jurisdictional, dismissal of
Anderson’s claims for lack of jurisdiction was required.
1
See TEX. CIV. PRAC. & REM. CODE ANN. §§ 101.001–.109.
2
See id. § 101.101(a); see also TEX. GOV’T CODE ANN. § 311.034.
3
In response to appellees’ plea to the jurisdiction, Anderson filed her first
amended petition, asserting the same factual allegations detailed in her original
petition. Anderson brought claims against appellees for sexual assault, assault, and
intentional infliction of emotional distress, and she continued to assert that Waller
County and Waller County Sheriff’s Department were vicariously liable for the acts
and omissions of the “on-duty jailor[s].” Anderson did not allege a negligence claim
against appellees in her first amended petition.
Appellees then filed an amended plea to the jurisdiction, arguing, among other
things, that the trial court lacked jurisdiction over Anderson’s claims because
appellees were entitled to governmental immunity, Anderson failed to plead and
prove that she had timely provided appellees with the TTCA-required notice of her
claims, the TTCA-required notice was jurisdictional, and without Anderson
providing appellees with the required notice, the TTCA did not waive appellees’
governmental immunity. Thus, Anderson’s claims against appellees had to be
dismissed for lack of jurisdiction.
In response to appellees’ amended plea to the jurisdiction, Anderson filed her
second amended petition, asserting the same factual allegations as her previous
petitions. Anderson brought claims against appellees for sexual assault, assault,
intentional infliction of emotional distress, and negligence. Anderson continued to
4
assert that Waller County and Waller County Sheriff’s Department were vicariously
liable for the acts and omissions of the “on-duty jailor[s].”
As to her sexual-assault and assault claims, Anderson asserted that while she
was in the custody of the Waller County Jail, there was a “misuse of property by
providing [Anderson] unsafe food, milk, and water [that] caused [Anderson] to black
out.” Additionally, “[t]he misuse of the surveillance cameras and/or monitors
caused them to be pointed in a way that there was no view of [Anderson’s] jail cell
where the sexual assault [and assault] of [Anderson] occurred.” And either “[t]he
misuse of surveillance cameras and/or monitors” or “the non-functioning,
improperly functioning, misused, and/or improperly placed surveillance cameras
and/or monitors” ensured that the sexual assault and assault of Anderson were not
detected. Essentially, the misuse of tangible property allowed the conduct of
appellees, “by and through the[] on-duty jailer[s],” “to intentionally or knowingly
sexually assault [Anderson]” and “to intentionally or knowingly make contact with
[Anderson’s] person . . . without her consent while she was in her cell.” Appellees,
“by and through the[] on-duty jailer[s], knew or should have believed [that
Anderson] would regard the contact as offensive or provocative.” Anderson suffered
damages as a result.
As to her intentional-infliction-of-emotional-distress claim, Anderson
asserted that “[t]he misuse of tangible property, which allowed the actions of
5
[appellees], by and through the[] on-duty jailer[s] . . . , to sexually assault and/or
assault [Anderson], constitute[d] extreme and outrageous conduct.” Anderson
suffered severe emotional distress and damages as a result.
As to her negligence claim, Anderson asserted that appellees, “by and through
the[] on-duty jailer[s],” breached their duty to Anderson by misusing property
through providing Anderson with improper clothing after taking Anderson’s clothes,
providing unsafe food, milk, and water to Anderson, failing to detect and prevent
injury to Anderson’s body, failing to adequately monitor Anderson, failing to
prevent the “on-duty jailer[s]” from having unsupervised access to Anderson, failing
to properly supervise, train, retrain, and retain the “on-duty jailer[s],” and failing to
provide reasonable supervision of the activities of the “on-duty jailer[s].” Appellees’
breach caused Anderson to suffer damages.
As to the TTCA-required notice,3 Anderson stated, in her second amended
petition: “[Appellees] received actual notice of [Anderson’s] claims because the
Texas Rangers investigated a complaint by [Anderson]. Additionally, [appellees]
received written notice of [Anderson’s] claim[s] on or about November 19, 2018.”
In addition to her second amended petition, Anderson filed a response to
appellees’ amended plea to the jurisdiction. As to the TTCA-required notice,
3
See TEX. CIV. PRAC. & REM. CODE ANN. § 101.101(a); see also TEX. GOV’T CODE
ANN. § 311.034.
6
Anderson asserted that she, in her second amended petition, had alleged that
appellees had actual notice that Anderson suffered an injury and Anderson had also
provided appellees with written notice.
After a hearing, the trial court granted appellees’ amended plea to the
jurisdiction and dismissed Anderson’s claims against appellees with prejudice. In
its order, the trial court noted that it had reviewed “the motion, any responses or
replies, the pleadings, and the evidence” and had “hear[d] any arguments of counsel”
before granting the amended plea to the jurisdiction.
Anderson filed a motion for new trial, arguing that the trial court erred in
granting appellees’ amended plea to the jurisdiction because the trial court failed to
consider her second amended petition, which was her live pleading at the time the
trial court granted the amended plea to the jurisdiction, Anderson had pleaded that
appellees had actual notice and written notice of Anderson’s claims, and Anderson’s
claims should not have been dismissed with prejudice. The trial court denied
Anderson’s motion.
Standard of Review
Subject-matter jurisdiction is essential to a court’s power to decide a case.
Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 443 (Tex. 1993). The
plaintiff bears the burden of affirmatively demonstrating that the trial court has
subject-matter jurisdiction over her case. Heckman v. Williamson Cty., 369 S.W.3d
7
137, 150 (Tex. 2012); Tex. Ass’n of Bus., 852 S.W.2d at 446; see also City of
Houston v. Miller, No. 01-19-00450-CV, 2019 WL 7341666, at *4 (Tex. App.—
Houston [1st Dist.] Dec. 31, 2019, no pet.) (mem. op.). A plea to the jurisdiction is
a dilatory plea that seeks dismissal of a case for lack of subject-matter jurisdiction.
Harris Cty. v. Sykes, 136 S.W.3d 635, 638 (Tex. 2004); Villarreal v. Harris Cty.,
226 S.W.3d 537, 541 (Tex. App.—Houston [1st Dist.] 2006, no pet.). A plea to the
jurisdiction may be utilized to challenge whether the plaintiff has met her burden of
alleging jurisdictional facts or to challenge the existence of jurisdictional facts. See
Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226–27 (Tex. 2004).
If a defendant is a governmental entity, it may file a plea to the jurisdiction on
the basis of sovereign or governmental immunity because immunity deprives a trial
court of subject-matter jurisdiction. See Ryder Integrated Logistics, Inc. v. Fayette
Cty., 453 S.W.3d 922, 926–27 (Tex. 2015); Tex. Nat. Res. Conservation Comm’n v.
IT-Davy, 74 S.W.3d 849, 853–55 (Tex. 2002); see also Harris Cty. v. Annab, 547
S.W.3d 609, 612 (Tex. 2018) (noting “immunity is properly asserted in a plea to the
jurisdiction” (internal quotations omitted)). When a governmental entity challenges
jurisdiction on the basis of immunity, the plaintiff must affirmatively demonstrate
the court’s jurisdiction by alleging a valid waiver of immunity. Ryder Integrated,
453 S.W.3d at 927.
8
When a plea to the jurisdiction challenges the plaintiff’s pleadings, we
determine whether the plaintiff has alleged facts that affirmatively demonstrate the
trial court’s jurisdiction. Ryder Integrated, 453 S.W.3d at 927; Miranda, 133
S.W.3d at 226. We construe the pleadings liberally in favor of the plaintiff, accept
all factual allegations as true, and look to the plaintiff’s intent. Ryder Integrated,
453 S.W.3d at 927; Heckman, 369 S.W.3d at 150. It is the plaintiff’s burden to plead
facts in her petition that demonstrate a waiver of sovereign or governmental
immunity. Dallas Cty. Hosp. Dist. v. Bravo, No. 05-20-00640-CV, 2021 WL
822916, at *2 (Tex. App.—Dallas Mar. 4, 2021, no pet.) (mem. op.); City of San
Antonio v. Peralta, 476 S.W.3d 653, 658 (Tex. App.—San Antonio 2015, no pet.).
If the pleadings generate a “fact question regarding the jurisdictional issue,” a court
cannot sustain the plea to the jurisdiction. Ryder Integrated, 453 S.W.3d at 927
(internal quotations omitted). Whether a plaintiff has alleged facts that affirmatively
demonstrate a trial court’s subject-matter jurisdiction is a question of law that we
review de novo. Id.; Miranda, 133 S.W.3d at 226; see also Ben Bolt-Palito Blanco
Consol. Indep. Sch. Dist. v. Tex. Pol. Subdivisions Prop./Cas. Joint Self-Ins. Fund,
212 S.W.3d 320, 323 (Tex. 2006) (we review trial court’s ruling on jurisdictional
plea de novo).
9
Plea to the Jurisdiction
In a portion of her first issue, Anderson argues that the trial court erred in
granting appellees’ amended plea to the jurisdiction because the TTCA waives
governmental immunity for her claims against appellees, her second amended
petition was her live pleading at the time the trial court granted the amended plea to
the jurisdiction, she pleaded that appellees had actual notice of Anderson’s claims,
and Anderson’s claims should not have been dismissed with prejudice.
A. Second Amended Petition
Anderson first argues that the trial court erred in granting appellees’ amended
plea to the jurisdiction because it failed to consider her second amended petition,
which was her live pleading at the time the trial court granted the amended plea to
the jurisdiction.
When appellees filed their amended plea to the jurisdiction, Anderson’s live
pleading was her first amended petition. In response to appellees’ amended plea to
the jurisdiction, Anderson filed her second amended petition before the trial court’s
hearing on the amended plea to the jurisdiction.
An amended petition completely replaces and supersedes the previously filed
petition. Fawcett v. Grosu, 498 S.W.3d 650, 658–59 (Tex. App.—Houston [14th
Dist.] 2016, pet. denied); J.M. Huber Corp. v. Santa Fe Energy Res., Inc., 871
S.W.2d 842, 844 (Tex. App.—Houston [14th Dist.] 1994, writ denied). Once a
10
petition is amended and filed, the prior petition is no longer part of the pleadings in
the case. Fawcett, 498 S.W.3d at 659; Bennett v. Wood Cty., 200 S.W.3d 239, 241
(Tex. App.—Tyler 2006, no pet.). The amended petition becomes the controlling
petition. Elliot v. Methodist Hosp., 54 S.W.3d 789, 793–94 (Tex. App.—Houston
[1st Dist.] 2001, pet. denied).
At the hearing on appellees’ amended plea to the jurisdiction, the parties
notified the trial court that Anderson had filed her second amended petition before
the hearing, and in making their arguments to the court, the parties specifically
addressed Anderson’s allegations in the second amended petition as to whether she
had provided the TTCA-required notice to appellees. The trial court also
acknowledged, during the hearing, that Anderson’s second amended petition had
been filed. In its order granting appellees’ amended plea to the jurisdiction and
dismissing Anderson’s claims against appellees with prejudice, the trial court stated
that it had “review[ed] . . . the pleadings.”
The Texas Rules of Civil Procedure do not prescribe a deadline for filing an
amended petition before a hearing or submission of a plea to the jurisdiction. Church
v. City of Alvin, No. 01-13-00865-CV, 2015 WL 5769998, at *4 (Tex. App.—
Houston [1st Dist.] Sept. 29, 2015, no pet.) (mem. op.); City of McKinney v. Hank’s
Rest. Grp., L.P., 412 S.W.3d 102, 110 (Tex. App.—Dallas 2013, no pet.). Here, the
trial court stated that it had “review[ed] . . . the pleadings,” and Anderson’s live
11
pleading at the time the trial granted appellees’ amended plea to the jurisdiction was
her second amended petition. See Church, 2015 WL 5769998, at *4 (trial court
considered third amended petition—live petition—when it stated in its order that it
had “review[ed] the pleadings of the parties” (alteration in original) (internal
quotations omitted)); City of McKinney, 412 S.W.3d at 110 (trial court considered
amended pleadings—live pleadings—when it denied plea to jurisdiction because it
“recited [in its order] that [it had] reviewed the pleadings of the parties” (internal
quotations omitted)). We conclude that the trial court considered Anderson’s second
amended petition in deciding to grant appellees’ amended plea to the jurisdiction.
See Church, 2015 WL 5769998, at *4; City of McKinney, 412 S.W.3d at 110; see
also Heckman, 369 S.W.3d at 150 (in analyzing plea to jurisdiction, court looks to
live pleading). Thus, we hold that the trial court did not err in granting appellees’
amended plea to the jurisdiction on this basis asserted by Anderson.
We overrule this portion of Anderson’s first issue.
B. Notice
Anderson next argues that the trial court erred in granting appellees’ amended
plea to the jurisdiction because Anderson pleaded, in her second amended petition,
that appellees had actual notice of Anderson’s claims.
Sovereign immunity and its counterpart, governmental immunity, exist to
protect the State and its political subdivisions from lawsuits and liability for money
12
damages. See Mission Consol. Indep. Sch. Dist. v. Garcia, 372 S.W.3d 629, 635–
36 (Tex. 2012); IT-Davy, 74 S.W.3d at 853; see also Ben Bolt-Palito Blanco Consol.
Indep. Sch. Dist., 212 S.W.3d at 323–24 (“Sovereign immunity protects the State,
its agencies, and its officials from lawsuits for damages.”). Although the terms
“sovereign immunity” and “governmental immunity” are often used
interchangeably, sovereign immunity “extends to various divisions of state
government, including agencies, boards, hospitals, and universities,” while
governmental immunity “protects political subdivisions of the State, including
counties, cities, and school districts.” See Ben Bolt-Palito Blanco Consol. Indep.
Sch. Dist., 212 S.W.3d at 323–24; see also Odutayo v. City of Houston, No.
01-12-00132-CV, 2013 WL 1718334, at *2 n.8 (Tex. App.—Houston [1st Dist.]
Apr. 18, 2013, no pet.) (mem. op.). We interpret statutory waivers of governmental
immunity narrowly, as the Texas Legislature’s intent to waive immunity must be
clear and unambiguous. See LMV-AL Ventures, LLC v. Tex. Dep’t of Aging &
Disability Servs., 520 S.W.3d 113, 120 (Tex. App.—Austin 2017, pet. denied); see
also TEX. GOV’T CODE ANN. § 311.034. Without an express waiver of sovereign
immunity or governmental immunity, courts do not have subject-matter jurisdiction
over suits against the State or its political subdivisions. State v. Shumake, 199
S.W.3d 279, 283 (Tex. 2006); Miranda, 133 S.W.3d at 224–25; see also Church,
13
2015 WL 5769998, at *3 (“If a governmental unit has immunity from a claim
pending against it, a trial court lacks subject-matter jurisdiction as to that claim.”).
The TTCA provides a limited waiver of immunity for certain suits against
governmental units. See TEX. CIV. PRAC. & REM. CODE ANN. §§ 101.001–.109;
Mission Consol. Indep. Sch. Dist. v. Garcia, 253 S.W.3d 653, 655 (Tex. 2008); City
of Houston v. Garza, No. 01-18-01069-CV, 2019 WL 2932851, at *4 (Tex. App.—
Houston [1st Dist.] July 9, 2019, no pet.) (mem. op.); City of Dallas v. Hillis, 308
S.W.3d 526, 530 (Tex. App.—Dallas Mar. 30, 2010, pet. denied). Appellees are
governmental units protected by governmental immunity, absent waiver. See TEX.
CIV. PRAC. & REM. CODE ANN. § 101.001(3); see also Nueces Cty. v. San Patricio
Cty., 246 S.W.3d 651, 652 (Tex. 2008) (“Governmental immunity . . . shields
counties against . . . suits absent express legislative waiver.”); Ficke v. Ratliff, No.
03-13-00136-CV, 2014 WL 857212, at *1–2 (Tex. App.—Austin Feb. 27, 2014, pet.
denied) (mem. op.) (affirming trial court’s order granting plea to jurisdiction based
on governmental immunity and dismissing plaintiff’s claims against Hays County
Sheriff’s Department); Hardin Cty. Sheriff’s Dep’t v. Smith, 290 S.W.3d 550, 552–
54 (Tex. App.—Beaumont 2009, no pet.) (holding governmental immunity barred
plaintiff’s claims against Hardin County Sheriff’s Department); Hopper v. Midland
Cty., 500 S.W.2d 552, 554 (Tex. App.—El Paso 1973, writ ref’d n.r.e.)
(governmental immunity applicable to counties). Relevant here, the TTCA waives
14
a governmental unit’s immunity for a personal injury caused by a condition or use
of personal property. See TEX. CIV. PRAC. & REM. CODE ANN. § 101.021(2).
To take advantage of the TTCA’s limited waiver of immunity, a plaintiff must
comply with the TTCA’s notice requirements. See id. § 101.101(a); Miller, 2019
WL 7341666, at *3; see also Metro. Transit Auth. of Harris Cty. v. Garza, No.
01-18-00408-CV, 2019 WL 1523186, at *4 (Tex. App.—Houston [1st Dist.] Apr. 9,
2019, no pet.) (mem. op.); Bexar Cty. v. Votion, No. 04-14-00629-CV, 2015 WL
2405364, at *2 (Tex. App.—San Antonio May 20, 2015, no pet.) (mem. op.) (TTCA
requires plaintiff to notify governmental unit of claim in order to invoke waiver of
immunity). A plaintiff’s failure to provide the statutorily required notice deprives
the trial court of jurisdiction and requires the court to dismiss the plaintiff’s case.
See TEX. GOV’T CODE ANN. § 311.034; Worsdale v. City of Killeen, 578 S.W.3d 57,
59, 62 (Tex. 2019) (stating notice under TTCA is “a jurisdictional prerequisite to
suit”); Miller, 2019 WL 7341666, at *4.
The TTCA’s notice requirements “allow[] [a] governmental [unit] to
investigate claims while the facts are fresh, to guard against unfounded claims, to
settle claims, and to prepare for trial.” Miller, 2019 WL 7341666, at *3 (internal
quotations omitted); see also Garza, 2019 WL 1523186, at *4. Texas Civil Practice
and Remedies Code section 101.101(a) provides that “[a] governmental unit is
entitled to receive notice of a claim against it . . . not later than six months after the
15
day that the incident giving rise to the claim occurred.” See TEX. CIV. PRAC. & REM.
CODE ANN. § 101.101(a). The notice must be in writing and must reasonably
describe (1) the damage or injury claimed, (2) the time and place of the incident, and
(3) the incident. See id.; Miller, 2019 WL 7341666, at *3; Garza, 2019 WL
1523186, at *4; see also Cathey v. Booth, 900 S.W.2d 339, 340 (Tex. 1995) (TTCA
requires formal, written notice of claim).
The written notice requirements in section 101.101(a) do not apply if a
governmental unit has actual notice that the plaintiff received some injury within six
months of the incident giving rise to the injury claimed. See TEX. CIV. PRAC. & REM.
CODE ANN. § 101.101(c); City of San Antonio v. Tenorio, 543 S.W.3d 772, 776 (Tex.
2018); Garza, 2019 WL 1523186, at *4; Tex. Tech Univ. Health Scis. Ctr. v. Lozano,
570 S.W.3d 740, 742–43, 745 (Tex. App.—El Paso 2018, pet. denied). But
knowledge that an injury has occurred, standing alone, is not sufficient to put a
governmental unit on actual notice for TTCA purposes. Tenorio, 543 S.W.3d at 776;
Garza, 2019 WL 1523186, at *4. To have actual notice, a governmental unit must
have the same knowledge it is entitled to receive under the written notice provisions
of Texas Civil Practice and Remedies Code section 101.101(a). Tenorio, 543
S.W.3d at 776; Garza, 2019 WL 1523186, at *4. Thus, the actual notice provision
under the TTCA requires a governmental unit to have subjective awareness that its
fault, as ultimately alleged by the plaintiff, produced or contributed to the claimed
16
injuries. Tenorio, 543 S.W.3d at 776; Garza, 2019 WL 1523186, at *4. A
governmental unit has actual notice if it has subjective knowledge of (1) an injury,
(2) the governmental unit’s fault that produced or contributed to the injury, and
(3) the identity of the parties involved. Tenorio, 543 S.W.3d at 776; Garza, 2019
WL 1523186, at *4. Mere investigation of an incident or injury does not show that
a governmental unit had actual notice for purposes of the TTCA. Lozano, 570
S.W.3d at 745–46; Tex. Dep’t of Crim. Justice v. Thomas, 263 S.W.3d 212, 217
(Tex. App.—Houston [1st Dist.] 2007, pet. denied) (“[I]nvestigation of an incident
alone is not enough to show that a governmental unit has actual knowledge of an
injury.”).
It is undisputed that the alleged incident giving rise to Anderson’s claims
against appellees occurred on October 19, 2014. Thus, appellees were entitled to
receive the TTCA-required notice of Anderson’s claims no later than April 20, 2015.
See TEX. CIV. PRAC. & REM. CODE ANN. § 101.101(a); see also TEX. R. CIV. P. 4
(“Computation of Time”); Univ. of Tex. Health Sci. Ctr. v. Owens, No.
01-18-00464-CV, 2019 WL 4065289, at *7 (Tex. App.—Houston [1st Dist.] Aug.
29, 2019, pet. denied) (mem. op.) (applying Texas Rule of Civil Procedure 4 to
TTCA’s six-month-notice deadline).
In her second amended petition, Anderson alleged that she provided formal,
written notice to appellees on November 19, 2018. See TEX. CIV. PRAC. & REM.
17
CODE ANN. § 101.101(a); see also Cathey, 900 S.W.2d at 340 (TTCA requires
formal, written notice of claim). A copy of the November 19, 2018 written notice is
not included in the record. Even assuming that the notice reasonably described
(1) the damage or injury claimed, (2) the time and place of the incident, and (3) the
incident, Anderson provided appellees with the written notice more than four years
after the incident giving rise to Anderson’s claims. See TEX. CIV. PRAC. & REM.
CODE ANN. § 101.101(a); Miller, 2019 WL 7341666, at *3; Garza, 2019 WL
1523186, at *4. The alleged November 19, 2018 written notice cannot satisfy the
TTCA’s notice requirements. See TEX. CIV. PRAC. & REM. CODE ANN. § 101.101(a)
(governmental unit entitled to receive notice of claim against it not later than six
months after day incident giving rise to claim occurred).
As to actual notice, Anderson’s allegations in her second amended petition
only state: “[Appellees] received actual notice of [Anderson’s] claims because the
Texas Rangers investigated a complaint by [Anderson].” There is no evidence in
the record about the Texas Rangers’ alleged investigation. See Long v. Long, No.
04-02-00566-CV, 2003 WL 22656877, at *2 (Tex. App.—San Antonio Nov. 12,
2003, no pet.) (plaintiff argued governmental unit had actual notice because plaintiff
filed grievance describing his alleged injuries but record on appeal did not include
copy of grievance and appellate court had no way to judge whether grievance gave
18
governmental unit actual notice as required by Texas Civil Practice and Remedies
Code section 101.101(c)).
Notably, in her second amended petition, Anderson did not allege the date on
which appellees received actual notice and did not allege that appellees had actual
notice that Anderson had received some injury within six months of the incident
giving rise to Anderson’s claimed injury.4 See TEX. CIV. PRAC. & REM. CODE ANN.
§ 101.101(c) (written notice requirements under Texas Civil Practice and Remedies
Code section 101.101(a) do not apply if governmental unit had actual notice that
plaintiff received some injury); Tenorio, 543 S.W.3d at 776; Garza, 2019 WL
1523186, at *4; Lozano, 570 S.W.3d at 742–43, 745 (governmental unit must have
actual notice within six months of incident giving rise to claimed injury). Anderson
also did not allege, in her petition, that appellees had subjective knowledge of her
injury, their fault that produced or contributed to Anderson’s injury, and the identity
of the parties involved. See Tenorio, 543 S.W.3d at 776 (governmental unit has
actual notice if it has subjective knowledge of (1) injury, (2) its fault that produced
or contributed to injury, and (3) identity of parties involved); Garza, 2019 WL
1523186, at *4 (governmental unit must have same knowledge it is entitled to under
4
At the hearing on appellees’ amended plea to the jurisdiction, appellees’ counsel
stated that the Texas Rangers’ investigation occurred more than a year after the
incident giving rise to Anderson’s claims. Anderson’s counsel did not dispute this
timeline at the hearing.
19
TTCA’s written notice provisions found in Texas Civil Practice and Remedies Code
section 101.101(a)). Anderson’s allegations that the Texas Rangers investigated an
unspecified complaint by Anderson at some unspecified time, even if taken as true,
do not show that appellees—Waller County and Waller County Sheriff’s Office and
its Unknown Agents—had actual notice of Anderson’s injury within six months of
the incident giving rise to Anderson’s claims.5 See Lozano, 570 S.W.3d at 745–46
(mere investigation of incident or injury does not show governmental unit had actual
notice); Thomas, 263 S.W.3d at 217 (“[I]nvestigation of an incident alone is not
enough to show that a governmental unit has actual knowledge of an injury.”). And
any knowledge of appellees that Anderson’s injury occurred in October 2014,
standing alone, is not sufficient to put appellees on actual notice for TTCA purposes.
Tenorio, 543 S.W.3d at 776; Garza, 2019 WL 1523186, at *4.
Although we must construe the pleadings in Anderson’s favor, we conclude
that Anderson, in her second amended petition, did not plead facts showing that she
had complied with the TTCA’s notice requirements, that appellees had actual notice
of her injury within the prescribed time-frame, or that the TTCA waived
governmental immunity. See Bravo, 2021 WL 822916, at *2 (plaintiff’s burden to
plead facts that demonstrate waiver of sovereign or governmental immunity);
5
In her briefing, Anderson, at times, focuses on the actual notice of the Texas Rangers
and not whether and when appellees received actual notice of Anderson’s claimed
injury.
20
Peralta, 476 S.W.3d at 658; see also State v. Gafford, No. 04-03-00168-CV, 2003
WL 22011302, at *4 (Tex. App.—San Antonio Aug. 27, 2003, no pet.) (mem. op.)
(because plaintiff failed to plead that “he gave the State notice of his claim,” as
required by TTCA, State’s plea to jurisdiction should have been granted and
plaintiff’s claim dismissed); City of Palmview v. Vasquez, No. 13-99-719-CV, 2000
WL 35721246, at *4 (Tex. App.—Corpus Christi–Edinburg Apr. 28, 2000, no pet.)
(not designated for publication) (holding plaintiff’s petition affirmatively showed
case did not fall within TTCA’s immunity waiver where plaintiff failed to plead
sufficient facts). And we disagree with Anderson’s assertion that the allegations in
her second amended petition raise a fact issue as to whether appellees received actual
notice of her claimed injury. We hold that the trial court did not err in granting
appellees’ amended plea to the jurisdiction on this basis asserted by Anderson.
We overrule this portion of Anderson’s first issue.
C. Dismissal with Prejudice
Anderson also argues that the trial court erred in granting appellees’ amended
plea to the jurisdiction because it dismissed her claims against appellees with
prejudice and “dismissal with prejudice is improper when [a] [p]laintiff is capable
of remedying the jurisdictional defect.”
Generally, if the plaintiff’s petition does not allege facts sufficient to
affirmatively demonstrate jurisdiction but the defects in the petition are curable by
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amendment, the issue is one of pleading sufficiency and the plaintiff should be
afforded an opportunity to amend her petition. Tex. Dep’t of Crim. Justice-Cmty.
Justice Assistance Div. v. Campos, 384 S.W.3d 810, 815 (Tex. 2012); Miranda, 133
S.W.3d at 226–27; Bell v. City of Grand Prairie, 221 S.W.3d 317, 321 (Tex. App.—
Dallas 2007, no pet.). But if a governmental unit filed its plea to the jurisdiction
asserting its immunity and the plaintiff was given a reasonable opportunity to amend
her petition, and the plaintiff’s amended petition still did not allege facts that would
constitute a waiver of immunity, the trial court should dismiss the case with
prejudice. See Campos, 348 S.W.3d at 815–16; Sykes, 136 S.W.3d at 639–40.
After Anderson filed her original petition, appellees filed a plea to the
jurisdiction, arguing that the trial court lacked jurisdiction over Anderson’s claims
because appellees were entitled to governmental immunity and the TTCA did not
waive that immunity. Appellees asserted that Anderson had failed to plead and
prove that she provided appellees with the TTCA-required notice of her claims
within six months of the day of the incident giving rise to Anderson’s claims, notice
was jurisdictional, and dismissal of Anderson’s claims for lack of jurisdiction was
required. In response to appellees’ plea to the jurisdiction, Anderson filed her first
amended petition but did not include any allegations as to the TTCA-required notice.
After Anderson filed her first amended petition, appellees filed an amended
plea to the jurisdiction, arguing that the trial court lacked jurisdiction over
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Anderson’s claims because appellees were entitled to governmental immunity,
Anderson failed to plead and prove that she had timely provided appellees with the
TTCA-required notice of her claims, the TTCA-required notice was jurisdictional,
and without Anderson providing appellees with the required notice, the TTCA did
not waive appellees’ governmental immunity. Thus, Anderson’s claims against
appellees had to be dismissed. In response to appellees’ amended plea to the
jurisdiction, Anderson filed her second amended petition, alleging: “[Appellees]
received actual notice of [Anderson’s] claims because the Texas Rangers
investigated a complaint by [Anderson]. Additionally, [appellees] received written
notice of [Anderson’s] claim[s] on or about November 19, 2018.”
After appellees filed their initial plea to the jurisdiction based on immunity
and asserted that the TTCA did not waive governmental immunity because
Anderson had not pleaded that she provided appellees with the TTCA-required
notice of her claims, Anderson twice amended her petition, yet still failed to plead
facts showing that she had complied with the TTCA’s notice requirements. In such
circumstances, the Texas Supreme Court has held that a party is not entitled to an
additional opportunity to replead her case. See Campos, 348 S.W.3d at 815–16;
Sykes, 136 S.W.3d at 639–40; Miranda, 133 S.W.3d at 231 (holding parties had
opportunity to amend their pleadings and were not entitled to another opportunity to
replead); see also Harris Cty. Appraisal Dist. v. Braun, No.
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14-19-00382-CV, --- S.W.3d ---, 2021 WL 1803188, at *10 n.21 (Tex. App.—
Houston [14th Dist.] May 6, 2021, no pet.) (plaintiff filed her first amended petition
after governmental unit filed its plea to jurisdiction; “[i]n such circumstances, the
supreme court has held that a party is not entitled to an additional opportunity to
replead [her] case”); Amador v. City of Irving, No. 05-19-00278-CV, 2020 WL
1316921, at *10 (Tex. App.—Dallas Mar. 20, 2020, no pet.) (mem. op.) (after
governmental unit’s plea to jurisdiction notified plaintiff its immunity had not been
waived, plaintiff, in her amended petition, filed after plea to jurisdiction, did not
allege additional facts to support waiver of immunity and trial court properly
dismissed plaintiff’s claim with prejudice).
We hold that the trial court did not err in granting appellees’ amended plea to
the jurisdiction and dismissing Anderson’s claims against appellees with prejudice.
We overrule this portion of Anderson’s first issue.6
6
Due to our disposition, we need not address Anderson’s remaining arguments
related to her first issue or her second issue. See TEX. R. APP. P. 47.1.
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Conclusion
We affirm the judgment of the trial court.
Julie Countiss
Justice
Panel consists of Chief Justice Radack and Justices Landau and Countiss.
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