In a rare 5-4 decision issued without hearing oral argument, the Texas Supreme Court dismissed a wrongful death suit filed against the City of San Antonio by the widow of a motorcyclist who was killed in a high speed chase with the San Antonio Police Department. The widow had not provided the City with notice required under San Antonio’s City Charter and under the Texas Tort Claims Act, and while there is a statutory exception for “actual notice,” the Supreme Court held that San Antonio did not have actual notice under the existing case law even though there was a policy crash report detailing the accident and listing “Fleeing or Evading Police” as a contributing factor. The case, City of San Antonio v. Tenorio, and the dissents offered by four of the justices, are informative for anyone interested in the rights of Texans to seek compensation when they are injured by the government.
Under the doctrine of sovereign immunity, the state and its agencies cannot be sued without the Legislature’s consent, and under the doctrine of governmental immunity, political subdivisions and local government units like counties, cities, and transit authorities also cannot be sued without the state Legislature’s consent. That consent is provided under, and limited by, a law called the Texas Tort Claims Act. The Texas Tort Claims Act, codified as Chapter 101 of the Texas Civil Practice & Remedies Code, defines the scope of lawsuits allowed against state and local governments in Texas, and also defines the procedures required by plaintiffs in those lawsuits.
One of those procedures is section 101.101, which requires a plaintiff to give notice of the injury and the incident to the government within six months. The section also approves city charter and ordinance provisions requiring notice within a shorter period of time, such as San Antonio’s charter provision requiring written notice within ninety days. However, subsection (c) creates an exception, providing that the notice requirements “do not apply if the governmental unit has actual notice that death has occurred, that the claimant has received some injury, or that the claimant’s property has been damaged.”
It was undisputed that the City of San Antonio had immediate knowledge-recorded in a police crash report-that Mr. Tenorio had died in the accident. However, in a majority opinion delivered by Justice Phil Johnson and joined by Chief Justice Nathan Hecht and Justices Paul Green, John Devine, and Jeff Brown, the Texas Supreme Court held that knowledge was not enough to constitute “actual notice.” The majority reasoned that this result was required under a 1995 per curiam opinion in a case called Cathey v. Booth, which held that the “actual notice” exception of 101.101(c) requires that the government have knowledge of its “alleged fault producing or contributing to the death, injury or property damage[.]” Because the police report did not reveal that the City was subjectively aware of its own fault, it did not have “actual notice” under the statute, and the claims against it were dismissed.
Four justices disagreed with the majority. Justice Eva Guzman wrote a dissent arguing that the majority construed Cathey too broadly. She critiqued the Supreme Court’s “[d]ogmatic adherence to language divorced from context” and “cramped construction of Cathey v. Booth and its progeny” which “thwarts, rather than effectuates, legislative intent.” “By construing the actual-notice exception to require self-acknowledgement of error, the Court erects an undue impediment to a merits-based disposition that is neither grounded in the statute’s language nor consistent with the rationale that informs our precedent.” Justice Guzman wrote that there was at least a fact question as to actual notice under the reasoning of Cathey.
Justice Jeffrey Boyd went further in a dissent joined by Justice Debra Lerhmann and the newly-appointed Justice Jimmy Blacklock, writing that Cathey was “obviously wrong” and that the Court should at least schedule oral argument and consider whether Cathey should be overruled. Justice Boyd wrote that in Cathey, not only “rewrote” the statute by adding a requirement that does not exist in the statute’s plan language, but “did a very poor job of rewriting it.” Justice Boyd pointed to two other times the Supreme Court revised the test in Cathey, and noted that “today’s case represents just one more exertion in the Court’s ongoing effort to figure out what it believes the law should require.”
Parties have fifteen days to file a motion for rehearing asking the Supreme Court to reconsider its opinion. It remains to be seen whether, in light of the dissenting opinions, the Supreme Court will grant oral argument.