In spite of what appears to be clear statutory language to the contrary, the El Paso Court of Appeals has applied the common-law mailbox rule to affirm a trial court order denying a university health sciences center plea to the jurisdiction in medical negligence claim.
Texas Tech University Health Sciences Center v. Phillip E. Mohrman, Individually and as Representative of the Estate of Robert K. Borst (No. 08-25-00088-CV; Dec. 22, 2025) arose from a health care liability action brought against Texas Tech University Health Sciences Center–El Paso (TTUHSC) and University Medical Center (UMC) by Phillip Mohrman following the death of his husband, Robert Borst.
According to Mohrman, Borst died while hospitalized at UMC in December 2017 from complications from a reaction to an antibiotic. Mohrman filed suit in November 2019. TTUHSC asserted that Mohrman failed to provide notice of this claim within six months of Borst’s death as required under § 101.101, CPRC (Texas Tort Claim Act). TTUHSC filed a plea to the jurisdiction and motion to dismiss, arguing that it did not learn of Mohrman’s claim until an email exchange with his counsel over a year after Borst’s hospitalization. In a sworn affidavit TTUHSC’s associate general counsel stated that after a thorough search, he could find no record of any notice before February 2019.
Mohrman countered that he had provided written notice in response to TTUHSC’s motion, and attached a declaration by his former counsel, which stated that letters were sent to both TTUHSC and UMC on April 5, 2018. The counsel’s letter contained the claim asserted, the date around when Borst was first dosed the antibiotic, and the event of Borst’s death. Following a hearing, the trial court denied TTUHSC’s plea to the jurisdiction and motion to dismiss. TTUHSC sought interlocutory relief.
In an opinion by Justice Soto, the court of appeals affirmed. TTUHSC asserted that the trial court erred in not granting its plea to the jurisdiction because Mohrman failed to provide timely written notice and failed to establish that TTUHSC had actual notice of his claims. The crux of the case was whether a fact issue existed as to Plaintiff’s alleged notice of claim. TTUHSC cited Needham Fire & Rescue Co. v. Balderas, No. 14-16-00211-CV, 2017 WL 1416219 (Tex. App.—Houston [14th Dist.] Apr. 18, 2017, no pet.) (mem. op.) for the proposition that “[m]erely stating that the letter was sent does not demonstrate that [it] was received by [TTUHSC].” Plaintiff contended his counsel’s sworn declaration that he sent timely notice on a specified date was sufficient evidence to create a fact issue, and at the hearing stated he was relying on “long-standing case law” holding that a properly mailed letter creates presumption it is received by the addressee.
The court declined to take Balderas’s, which tied the notice requirement to the date the governmental entity received it. Instead, the court relief on Adams v. City of Dallas, No. 05-14-1143-CV, 2015 WL 7280893 (Tex. App.—Dallas November 18, 2025, no pet.)(mem. op.), which “emphasized that the date of receipt is controlling under § 101.101(a) because there, the gap between the date of the notice (January 27) and the due date [under the statute] for its receipt (January 28) was only one day.” The court pointed out that in this case the date of the notice was April 30 and the due date August 5 The court further observed that there appears to be a conflict between courts of appeals as to whether the date of receipt of the notice controls.
In fact, the statute reads that “[a] governmental unit is entitled to receive notice of a claim against it … not later than six months after the date that the incident giving rise to the claim occurred.” § 101.101(a), CPRC. But, the court reasoned, the statute does not “address[] the separate issue of whether evidence that a written notice was sent can give rise to a presumption or create a fact issue as to its receipt—in other words, whether the mailbox rule might apply.” Here the court felt “obligated to consider whether the common-law mailbox rule applies to [Plaintiff’s] notice, even if we must do so sua sponte” (citations omitted), since § 101.101(a) is a jurisdictional requirement. It held that Plaintiff’s evidence that counsel sent notice through the mail well within the six-month period “gave rise to a presumption that TTUHSC received the notice in due course,” and that TTUHSC’s counsel’s statement that it did not receive the notice rebutted the presumption. That left “a fact issue as to whether TTUHSC actually received timely notice of [Plaintiff’s] claim under § 101.101(a).”
The court thus affirmed the trial court’s denial of TTUHSC’s plea to the jurisdiction and remanded this case for further proceedings.
TCJL Legal Intern Haden Knobloch researched and prepared the first draft of this article.
