Court of Appeals of Texas, Third District, Austin
THE DISTRICT COURT OF BELL COUNTY, 169TH JUDICIAL DISTRICT
NO. 289, 598-C, HONORABLE PHILLIP O. VICK, JUDGE PRESIDING
Justices Puryear, Pemberton, and Bourland Justice Pemberton
interlocutory appeal, the City of Killeen appeals the trial
court's denial of its plea to the jurisdiction,
contending that the City did not have "actual
notice" of appellees' wrongful-death claims, which
is required to waive the City's governmental immunity
under the Texas Tort Claims Act (TTCA). See Tex.
Civ. Prac. & Rem. Code § 101.101(c). For the
following reasons, we reverse the trial court's order and
render judgment granting the City's plea to the
jurisdiction, dismissing appellees' claims against the
City for want of jurisdiction.
lawsuit arose out of a motorcycle accident involving driver
Scott Worsdale and passenger Heike King. Their petition
alleged that on June 7, 2015, Worsdale's motorcycle was
traveling westbound on Reese Creek Road in Killeen when it
collided with a "large dirt mound obstructing the full
width" of the roadway; the mound was "not marked or
indicated by any traffic-control device, barricades, or other
safety features." Both Worsdale and King were seriously
injured in the accident and later died from their
Killeen Police Department (KPD) arrived on the scene shortly
after the accident and began an investigation. KPD Officer
Bradley Blenden's incident report outlined observations
he made at the scene the night of the accident as well as
observations and conversations he had with employees from
other City departments, including a Deputy City Attorney, in
the days following the accident. As noted in his report, some
of those conversations concerned who owned the road and was
responsible for its maintenance. However, the report did not
make any conclusions about fault for the accident. Officer
Blenden supplemented his report on June 26, 2016, noting that
the case "will be closed" due to the death of
Worsdale, "the suspect in the case."
petition alleged that the dirt mound constituted a special
defect on the City's property-a dangerous condition about
which the City knew or should have known-and that the City
had a duty to make the premises safe by eliminating the risk
of harm or warning of the dangerous condition, which it
failed to do. See Tex. Civ. Prac. & Rem. Code
§ 101.022(b) (noting that governmental unit has duty to
warn of special defects such as excavations or obstructions
on roads); see also id. § 101.025 (waiving
governmental immunity for claims under TTCA). The City's
plea to the jurisdiction asserted that (1) appellees did not
provide the City with the required, written statutory notice
of their claims within six months of the accident and (2) the
City did not have "actual notice" of appellees'
claims within that same period. See id. §
101.101(a), (c). Appellees attached evidence to their
response to the City's plea to the jurisdiction-including
excerpts from the deposition testimony of Officer Blenden and
his incident report-and, after a hearing, the trial court
denied the plea.
governmental unit, such as a city, is immune from suit and
liability unless the legislature has waived immunity. See
Dallas Cty. Mental Health & Mental Retardation v.
Bossley, 968 S.W.2d 339, 341 (Tex. 1998). A plaintiff
has the burden to affirmatively demonstrate a valid
legislative waiver of immunity. See Dallas Area Rapid
Transit v. Whitley, 104 S.W.3d 540, 542 (Tex. 2003). To
determine if the plaintiff has met that burden, the courts
"consider the facts alleged by the plaintiff and, to the
extent it is relevant to the jurisdictional issue, the
evidence submitted by the parties." Texas Nat. Res.
Conservation Comm'n v. White, 46 S.W.3d 864, 868
(Tex. 2001). "A plaintiff bears the burden of alleging
sufficient facts and to come forward with jurisdictional
evidence to demonstrate that the trial court has subject
matter jurisdiction over its claims." City of El
Paso v. Viel, 523 S.W.3d 876, 883 (Tex. App.-El Paso
2017, no pet.). "Subject-matter jurisdiction is a
question of law; therefore, we review a trial court's
ruling on a plea to the jurisdiction de novo." City
of Austin v. Frame, No. 03-15-00292-CV, 2017 WL 1832485,
at *2 (Tex. App.-Austin May 5, 2017, pet. filed) (mem. op.)
(citing Texas Dep't of Parks & Wildlife v.
Miranda, 133 S.W.3d 217, 226 (Tex. 2004)).
notice requirements in the TTCA are jurisdictional.
See Tex. Gov't Code § 311.034
("Statutory prerequisites to a suit, including the
provision of notice, are jurisdictional requirements in all
suits against a governmental entity."); City of
Dallas v. Carbajal, 324 S.W.3d 537, 537-38 (Tex. 2010).
Regarding pre-suit notice, section 101.101 of the TTCA
provides in relevant 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 claimed;
(2) the time and place of the ...