Nueces County v. Ballesteros

347 S.W.3d 231, 54 Tex. Sup. Ct. J. 911, 2011 Tex. LEXIS 338, 2011 WL 1662878

• Court: Texas Supreme Court
• Decided: April 29, 2011
• Docket: 09-0561
• Status: Published

Opinion

Justice WILLETT,

dissenting from the denial of the petition for review.

For reasons explained in my concurrence today in Roccaforte v. Jefferson County, 1 I respectfully dissent from the Court’s denial of Nueces County’s petition for review.

My view in Roccaforte is that Jefferson County effectively waived Roccaforte’s noncompliance with the mandatory post-suit notice requirements of Local Government Code Section 89.0041 by failing to raise it “as soon as possible.” 2 As we have stated, “The failure of a non-jurisdictional requirement mandated by statute may result in the loss of a claim, but that failure must be timely asserted and compliance can be waived.” 3 In Roccaforte, Jefferson County litigated for two-plus years before asserting defective notice, raising it only after limitations had expired. In this case, however, Nueces County immediately objected to Balleste-ros’s noncompliance in both its plea to the jurisdiction and its motion to dismiss. 4 Accordingly, I believe Nueces County was entitled to mandatory dismissal under Section 89.0041(c). 5

1 . 341 S.W.3d 919, 927 (Tex.2011) (Willett, J., concurring in part).

2 . Id. (citing Univ. of Tex. Sw. Med. Ctr. v. Loutzenhiser, 140 S.W.3d 351, 360 (Tex.2004) ("[I]f a governmental unit is to avoid litigation to which it should not be subjected because of lack of notice, it should raise the issue as soon as possible.”)).

3 . Loutzenhiser, 140 S.W.3d at 359.

4 . 286 S.W.3d 566, 568-69.

5 . Unlike Roccaforte, Ballesteros does not assert in this Court that the no-exceptions dismissal mandate of Section 89.0041(c) is preempted by 42 U.S.C. § 1983.