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Torts No. 04-02-00001-CV, 5/7/2003. Click here for the full text of this decision FACTS: On behalf of their minor child, Kaelyn, Marcus Martinez and Mary Koog appeal the trial court’s dismissal of their claim brought under the Texas Tort Claims Act. On behalf of Kaelyn, Martinez and Koog filed suit for medical malpractice pursuant to the TTCA against appellee Val Verde County Hospital District d/b/a Val Verde Regional Medical Center, Dwayne Riegel, CRNA, and Allen Anderson, MD. In response to this suit, Val Verde filed a plea to the jurisdiction, arguing that because the plaintiffs did not provide notice of their claim to Val Verde within six months of the date of injury, their claims against Val Verde should be dismissed. It is undisputed that the plaintiffs first provided notice to Val Verde on Oct. 19, 1998, seven months after the date of injury. And, there is no evidence in the record that before Oct. 19, 1998, Val Verde had actual notice of the plaintiffs’ claim. The trial court granted Val Verde’s plea to the jurisdiction and severed the claims against Val Verde from those against Riegel and Anderson. Martinez and Koog appeal, arguing that the trial court erred in granting the plea to the jurisdiction because 1. failing to provide notice pursuant to the TTCA’s six-month notice provision is an affirmative defense, not a jurisdictional requirement; and 2. because of their daughter’s minority, the TTCA’s six-month notice provision is tolled. HOLDING: Affirmed. The court determines whether the TTCA’s six-month notice requirement is a jurisdictional requirement or simply a statutory prerequisite under Dubai. Texas has long recognized that sovereign immunity, unless waived, protects the state, its agencies and officials from suits for damages. Fed. Sign v. Tex. S. Univ., 951 S.W.2d 401 (Tex. 1997), overruled on other grounds by Gen. Servs. Comm’n v. Little-Tex Insulation Co., 39 S.W.3d 591 (Tex. 2001). Under the TTCA, the Legislature has waived sovereign immunity only in certain, narrowly defined circumstances. Section 101.025 of the TTCA provides that “[s]overeign immunity to suit is waived and abolished to the extent of liability created by this chapter.” Section 101.021, in turn, creates governmental liability for the following events: 1. property damage, personal injury and death, proximately caused by the wrongful act or omission or the negligence of an employee acting within his scope of employment, if the property damage, personal injury or death arises from the operation or use of a motor-driven vehicle or motor-driven equipment and the employee would be personally liable to the claimant according to Texas law; or 2. personal injury and death so caused by a condition or use of tangible personal or real property if the governmental unit would, were it a private person, be liable to the claimant according to Texas law. Here, Martinez and Koog have alleged that Kaelyn’s death was caused by a condition or use of tangible personal property. Additionally, �101.101 states that 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.” According to Martinez and Koog, �101.101(a)’s six-month notice requirement gives the governmental unit “immunity from liability,” not “immunity from suit.” As such, they argue that a plea to the jurisdiction was the incorrect procedural vehicle here. Immunity from suit bars an action against the state unless the state expressly consents to suit. Tex. Dep’t of Transp. v. Jones, 8 S.W.3d 636 (Tex. 1999). The party suing the governmental entity must establish the state’s consent, which may be alleged either by reference to a statute or to express legislative permission. If the state has not consented to suit, the state may contest the trial court’s subject matter jurisdiction by filing a plea to the jurisdiction. By contrast, immunity from liability does not affect a court’s jurisdiction to hear a case. Immunity from liability protects the state from judgment even if the Legislature has expressly consented to the suit. Like other affirmative defenses to liability, it must be pled or else it is waived. Section 101.025(a) states that sovereign immunity is waived and abolished to the extent of liability created by this chapter. Tex. Civ. Prac. & Rem. Code Ann. � 101.025(a) (Vernon 1997). Section 101.021 describes the particular circumstances for which a governmental unit in the state is liable. Given their plain meaning, sections 101.025 and 101.021 provide for the State’s consent to suit. Thus, if a plaintiff has alleged facts which fit within �101.021, that plaintiff has invoked the jurisdiction of the trial court. Because �101.021 invokes the trial court’s jurisdiction, it follows that compliance with �101.101′s six-month notice requirement is not necessary to invoke the jurisdiction of the trial court. The six-month notice requirement, therefore, falls under immunity from liability, and is an affirmative defense. Failure to comply with this six-month notice requirement, however, cannot be cured through abatement. Notice provisions defined in terms of date of suit can be cured through abatement. Hines v. Hash, 843 S.W.2d 464 (Tex. 1992).Here, however, �101.101′s notice requirement is defined in terms of the date of injury: “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.” Once six months from the date of the incident has passed, it is forever lost and cannot, therefore, be cured through abatement. As such, �101.101′s six-month notice requirement is comparable to the affirmative defense of statute of limitations. Once the statute of limitations has run, it can never be cured. Because �101.101′s notice requirement is an affirmative defense, it should not have been raised in a plea to the jurisdiction. Like other affirmative defenses, a motion for summary judgment is the appropriate procedural vehicle. The state has sovereign immunity from suit unless it so consents. The TTCA provides for such waiver of sovereign immunity under certain circumstances. The TTCA does not, however, contain any provision tolling the notice period for minors. The Legislature could have provided for an extension or tolling of the notice requirement as it did in the Texas Deceptive Trade Practices Act. Unless and until the Legislature provides for such a provision in the TTCA, the court declines to create the common-law rule requested by appellants. The court holds that the TTCA’s six-month notice requirement was not tolled for Kaelyn’s minority. OPINION: Angelini, J.; L�pez, Duncan and Angelini, JJ.

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