City of Houston v. Alvin Charles Duncan--Appeal from 133rd District Court of Harris County

Dismissed and Memorandum Opinion filed October 5, 2004.

In The

Fourteenth Court of Appeals

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NO. 14-04-00319-CV

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CITY OF HOUSTON, Appellant

V.

ALVIN CHARLES DUNCAN, Appellee

On Appeal from the 133rd District Court

Harris County, Texas

Trial Court Cause No. 03-45152

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 denying appellant City of Houston s plea to the jurisdiction signed January 22, 2004. See Tex. Civ. Prac. & Rem. Code 51.014(a)(8). In a single issue, the City claims that the trial court erred in denying its plea to the jurisdiction because appellee Alvin Charles Duncan failed to give it proper notice of his claim as required under section 101.101 of the Texas Tort Claims Act. See Tex. Civ. Prac. & Rem. Code 101.101. After responding to the City s arguments, Duncan raises two issues complaining that the trial court has not timely ruled on his motions for appointment of counsel.

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 the 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. 140 S.W.3d 351, 362 (Tex. 2004). In Texas Department of Criminal Justice v. Simons, the Court held actual 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. 140 S.W.3d 338, 348 (Tex. 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 348 49. 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. at 349. For this reason, we dismiss the City s interlocutory appeal of the trial court s denial plea to the jurisdiction.

We also have no jurisdiction to address Duncan s cross-issues. We note that Duncan did not file a cross-appeal, see Tex. R. App. P. 25.1(c) and, in any event, his attempted appeal of the trial court s purported failure to timely rule on his requests for appointment of counsel does not invoke appellate jurisdiction.

We dismiss the City s appeal and Duncan s purported cross-appeal for lack of jurisdiction.

/s/ Adele Hedges

Chief Justice

Judgment rendered and Memorandum Opinion filed October 5, 2004.

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