Appeal from the 133rd District Court Harris County, Texas
Trial Court Cause No. 2016-12554
consists of Justices Christopher, Bourliot, and Spain.
Frances Bourliot, Justice.
Cruz sued Jailene Reyes for damages arising from a November
2015 car accident. In April 2017, Reyes moved to add the City
of Houston as a third-party defendant. Cruz filed an amended
petition asserting a cause of action against the City and
contending the City waived governmental immunity under the
Texas Tort Claims Act (TTCA). See Tex. Civ. Prac.
& Rem. Code Ann. ch. 101. The City filed a plea to the
jurisdiction on the ground that Cruz did not comply with the
notice requirement under TTCA section 101.101. The trial
court denied the plea to the jurisdiction, and the City
appealed that interlocutory order. Id. §
51.014(a)(8). We reverse the order and render judgment
dismissing Cruz's claims against the City.
to Cruz's original petition, filed in February 2016,
Reyes ran a red light at an intersection and collided with
Cruz's vehicle on November 2, 2015. Reyes filed a motion
in mid-March 2017 seeking leave to name the City as a
third-party defendant. The trial court granted the motion
about a month later.
Cruz's counsel sent a letter to the City near the end of
March 2017 about the accident on behalf of "our client
Mr. Francisco Lopez." The letter also refers to
"our client Mr. Francisco Cruz." Cruz filed an
amended petition two weeks later alleging the City was
negligent and grossly negligent under various theories
related to the red light.
City filed special exceptions and an answer to the amended
petition in mid-May 2017. Six months later, in November 2017,
the City filed a plea to the jurisdiction and motion to
dismiss as to Cruz's claims. The City contended Cruz was
required to give it notice of the claim within 90 days of the
accident under the City's charter or, at most, within six
months of the accident under the TTCA. The City attached two
affidavits to its plea to the jurisdiction. Both were
executed by Anna Russell, the City Secretary and Custodian of
Records for the City Council of the City of Houston. In both
affidavits, Russell states it is in the regular course of
business for the City to make a record at or near the time or
reasonably soon thereafter of any claim against the City. The
first affidavit then states in relevant part:
After a review of the records in my custody after November 2,
2015, I found that my office received a notice of claim for
damages. . .on behalf of Francisco Lopez on
March 31, 2017.
(Boldface in original.) The second affidavit states:
After a review of the records in my custody, I found that my
office did not receive a notice of claim for damages for
Francisco Cruz on or after November 2, 2015,
to the present date [September 26, 2017].
(Boldface in original.)
response did not dispute that his lawyer's letter failed
to timely provide the requisite notice. Instead, he contended
a fact issue remained regarding whether the City had actual
notice, in which case he was not required to provide notice.
He alleged documents already produced in discovery showed the
City was aware of a malfunctioning traffic signal at the
intersection on the day the accident occurred. Cruz attached
18 pages of documents he characterized as "311 Lagan
Service Requests, Infor/EAM Service Requests, Crew Job
Tickets" regarding the intersection where the accident
occurred. The documents indicate reports were made on
November 2, 2015-the day of the accident-about the faulty
traffic light. The reports include the following statements:
• "Well, it is happening again. The light stays
green for sometimes 3-5 minutes with no traffic from
Brisbane, so semis and cars are running the light. It is not
doing anything consistently, but when it does change, it
stays that way for way too long. With that loading company
here at the intersection, this light needs to work. Why