David Foster and Christeene Foster, Individually and as Next of Friend of Christopher Foster, a Minor v. Harris County Flood Control District

• Court: Court of Appeals of Texas
• Decided: September 9, 2004
• Docket: 14-04-00285-CV
• Status: Published

Opinion

Dismissed and Memorandum Opinion filed September 9, 2004

Dismissed and Memorandum Opinion filed September 9, 2004.

In The

Fourteenth Court of Appeals

____________

NO. 14-04-00285-CV

DAVID FOSTER and CHRISTEENE FOSTER, Individually and as Next Friend of Christopher Foster, a minor, Appellants

V.

HARRIS COUNTY FLOOD CONTROL DISTRICT, Appellee

On Appeal from the 280th District Court

Harris County, Texas

Trial Court Cause No. 03-55425

M E M O R A N D U M   O P I N I O N

This is an interlocutory appeal from an order granting appellee=s plea to the jurisdiction signed March 10, 2004.  See Tex. Civ. Prac. & Rem. Code Ann. ' 51.014(a)(8) (Vernon Supp. 2004).  In appellants= brief, they raise two points of error claiming the trial court erred in granting appellee=s plea to the jurisdiction because appellee had actual notice of appellants= claim pursuant to section 101.101 of the Texas Tort Claims Act.  See Tex. Civ. Prac. & Rem. Code Ann. ' 101.101 (Vernon 1997). 

On July 9, 2004, the Texas Supreme Court issued two opinions directly relevant to this appeal.  First, in The University of Texas Southwestern Medical Center at Dallas v. Loutzenhiser, the court held that Athe failure to give notice of a claim as required by section 101.101 does not deprive a court of subject matter jurisdiction over an action on the claim.@  47 Tex. S. Ct. J. 869, 876 (July 9, 2004).  In Texas Department of Criminal Justice v. Simons, the court held Aactual notice under section 101.101(c) requires that a governmental unit have knowledge of the information it is entitled to be given under section 101.101(a) and a subjective awareness that its fault produced or contributed to the claimed injury.@  47 Tex. S. Ct. J. 861, 868 (July 9, 2004).  Relying on Loutzenhiser, the court concluded that because lack of notice is not jurisdictional, it cannot be made the basis of a plea to the jurisdiction in the trial court.  Id. at 869.  Consequently, a court of appeals has no jurisdiction over an interlocutory appeal from a ruling on a plea to the jurisdiction challenging notice and must dismiss the appeal.  Id. 

On July 22, 2004, notification was transmitted to all parties of the court=s intention to dismiss the appeal for want of jurisdiction.  See Tex. R. App. P. 42.3(a).  The court requested supplemental briefing addressing our jurisdiction to hear the appeal.  The parties filed supplemental briefs on August 19, 2004, and August 30, 2004.  Both parties agree this court lacks jurisdiction over this appeal. 

Accordingly, the appeal is ordered dismissed.

PER CURIAM

Judgment rendered and Memorandum Opinion filed September 9, 2004.

Panel consists of Chief Justice Hedges and Justices Fowler and Seymore.