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Click here for the full text of this decision FACTS:The court of appeals held that petitioner’s investigation of an accident provided it with the required knowledge and therefore affirmed the trial court’s denial of petitioner’s plea to the jurisdiction. HOLDING:Reversed and dismissed. In Cathey v. Booth, 900 S.W.2d 339 (Tex. 1995) (per curiam), the court held 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. The court clarifies its intent in Cathey. 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. The court recognizes 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 101.101. The “actual notice” exception in subsection (c), makes determining compliance with 101.101 somewhat less certain. Actual notice is a fact question when the evidence is disputed. 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. But this is not inconsistent with the purpose of 101.101. 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. The court holds that actual notice under 101.101(c) requires that a governmental unit have knowledge of the information it is entitled to be given under 101.101(a) and a subjective awareness that its fault produced or contributed to the claimed injury. The court does not determine whether TDCJ established that it lacked actual notice of Simons’s claim; the court decides in University of Texas Sw. Med. Ctr. v. Loutzenhiser, ___ S.W.3d ___ (Tex. 2004), that a claimant’s failure to comply with 101.101 does not deprive the trial court of subject matter jurisdiction. The court 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 101.021 of the Tort Claims Act. 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. OPINION:Hecht, J., delivered the court’s opinion.

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