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Click here for the full text of this decision FACTS:Texas Department of Criminal Justice – Institutional Division appeals the trial court’s denial of its plea to the jurisdiction and no-evidence motion for summary judgment. The appellee, Brian Edward Simons, sued TDCJ for injuries Simons alleges he sustained during his incarceration. TDCJ filed a plea to the jurisdiction, in which it asserted Simons’s claim is barred because he failed to provide TDCJ with actual or written notice as required by the Texas Tort Claims Act. The trial court denied TDCJ’s plea to the jurisdiction, and TDCJ appealed. The appellate court found that TDCJ had actual notice of Simons’s claim and affirmed the trial court’s order. In its opinion reversing the Beaumont Court of Appeals’ decision, the Texas Supreme Court held 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 Supreme Court also found that �101.101 does not deprive the trial court of subject matter jurisdiction. In 2005, the Legislature amended Texas Government Code �311.034, providing: “In order to preserve the legislature’s interest in managing state fiscal matters through the appropriations process, a statute shall not be construed as a waiver of sovereign immunity unless the waiver is effected by clear and unambiguous language. In a statute, the use of “person,” as defined by Section 311.005 to include governmental entities, does not indicate legislative intent to waive sovereign immunity unless the context of the statute indicates no other reasonable construction. Statutory prerequisites to a suit, including the provision of notice, are jurisdictional requirements in all suits against a governmental entity.” The previous version of �311.034 did not contain the last sentence, which makes statutory prerequisites to a suit jurisdictional. Although the amended version of �311.034 became effective on Sept. 1, 2005, the statute is silent regarding whether the amendment is to be applied to suits pending as of its effective date. After the effective date of the statute, TDCJ filed a “plea to the jurisdiction and no evidence motion for summary judgment,” in which it again argued the case should be dismissed for lack of jurisdiction because TDCJ did not receive actual notice of Simons’ claim. The trial court denied TDCJ’s plea to the jurisdiction and no evidence motion for summary judgment. HOLDING:Reversed and rendered. TDCJ contends �311.034, as amended, applies to all pending cases because it is a non-substantive, procedural statute that affects no vested rights but merely defines the jurisdictional limits of the courts to consider claims against the state. The court finds the amendment is procedural and does not affect vested substantive rights under the prior law. Applying the current version of �311.034 the court finds that it has jurisdiction over this appeal. TDCJ asserts that because it did not have actual notice of Simons’s claim, the case must be dismissed for lack of subject matter jurisdiction. The Supreme Court has construed �101.101(c) to require “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.” Cathey v. Booth, 900 S.W.2d 339 (Tex. 1995). The Supreme Court held in this case 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 fact that TDCJ investigated Simons’s accident does not constitute subjective awareness on the part of TDCJ that its fault produced or contributed to Simons’s injury. Indeed, the court states, the results of TDCJ’s investigation indicated Simons, not TDCJ, was responsible for the accident. Hodde’s affidavit does not demonstrate subjective awareness on the part of TDCJ that its fault produced or contributed to the claimed injury. Although Hodde avers in her affidavit that she spoke with a warden at the Terrell Unit, her affidavit does not indicate the substance of the conversation. In addition, there is no evidence in the record that the warden was an individual charged with reporting or investigating claims. Even if Hodde’s affidavit is read as indicating she told the warden that she worked for Simons’s counsel, who was investigating the accident and contemplating litigation, this would not constitute actual notice to TDCJ that its fault allegedly produced or contributed to Simons’ injury. The court holds that, as a matter of law, TDCJ did not have actual notice that its fault produced or contributed to the accident. OPINION:McKeithen, C.J.; before McKeithen, C.J., Kreger and Horton, J.J. DISSENT:Kreger, J. “This is an interlocutory appeal by the Texas Department of Criminal Justice – Institutional Division (‘TDCJ’) from an order by the trial court denying TDCJ’s plea to the jurisdiction and denying TDCJ’s motion for summary judgment. The majority initially finds we have jurisdiction over the appeal and then holds ‘as a matter of law,’ that ‘TDCJ did not have actual notice that its fault produced or contributed to the accident.’ Because I disagree with the majority’s analysis of the current law applicable to both rulings, I respectfully dissent.”

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