Justice Evan Young
In an opinion concurring with the Texas Supreme Court’s denial of a petition for review, Justice Evan Young and three of his colleagues have called for a reconsideration of the Court’s jurisprudence around § 101.101, CPRC (Tort Claims Act). That section requires a claimant to give notice to a governmental entity prior to filing suit.
City of Houston v. Jessica Zuniga (No. 24-0916; June 13, 2025) arose from a collision between a motorist and a vehicle driven by an employee of the Houston Fire Department. Zuniga filed suit against the city. She did not comply with the formal notice required by § 101.101 but instead claimed that the city had actual notice of her claim by virtue of a statement to a police officer. The trial court denied the city’s plea to the jurisdiction, and the Houston [1st] Court of Appeals affirmed. SCOTX denied the city’s petition for review.
Justice Young, joined by Justices Lehrmann, Boyd, and Sullivan, concurred. He took the opportunity offered by this case to critique the Court’s 1995 decision in Cathey v. Booth, 900 S.W.2d 339 (Tex. 1995), which he opined “has darkened the Court’s approach to a jurisdictional provision in perhaps the most jurisdiction-laden statute of them all—the Texas Tort Claims Act…. More because of Cathey than despite it, § 101.101 has now plagued courts and litigants for decades.” According to Justice Young, the problem with Cathey is that it “all but erased” § 101.101’s language providing that formal notice isn’t necessary if the governmental entity has actual notice of the claim. Here, “[t]he City likely had actual notice under any plausible standard. I write separately because the very fact that the dispute about notice in this comparatively simple case could lead all the way to a petition for review in the Supreme Court itself illustrates the harm that Cathey continues to wreak on the law.”
Specifically, the statute says that formal notice is not required “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.” § 101.101(c). But the Cathey court that since the purpose of the statute was “to ensure prompt reporting of claims in order to enable governmental units to gather information necessary to guard against unfounded claims, settle claims, and prepare for trial,” simple “knowledge” of death, injury, or property damage shouldn’t confer jurisdiction. The Court thus engrafted a requirement that “actual notice” require “knowledge of (1) a death, injury, or property damage; (2) the governmental unit’s alleged fault producing or contributing to the death, injury, or property damage; and (3) the identity of the parties involved.” Later the Court modified this test to simply require that “a governmental unit [] have the same knowledge it is entitled to receive under the written notice provisions of the [Act].” Further, the unit must have “subjective awareness that it was in some manner at fault” in the accident. City of San Antonio v. Tenorio, 543 S.W.3d 772 (Tex. 2018).
Observing that four justices dissented in City of San Antonio (including Chief Justice Blacklock and Justices Boyd and Lehrmann) on the basis that the majority, in their view, rewrote the statute, and that in two later decisions the majority passed up opportunities to overrule Cathey, Justice Young argued that Cathey was wrongly decided and should be overruled. First, there is “obvious tension between its holding and the statute’s plain language.” In fact, the Cathey court misconstrued § 101.101 to restrict governmental liability when the purpose of the Tort Claims Act is to expand it. Second, Cathey does not “promote[] efficiency, fairness, and legitimacy.” Because § 101.101’s notice requirement is jurisdictional, the “rules should be clear … because ‘[s]imple jurisdictional rules … promote greater predictability” (citations omitted). Lack of clarity, on the other hand, “continues to generate confusion and require this Court’s periodic (and the lower courts’ frequent intervention. A truly clear rule, of course, would not have that consequence.”
Responding to this lack of clarity, courts of appeals have attempted to simplify matters, resulting in further confusion and continuous tweaks to Cathey. “That,” Justice Young wrote, “is not the hallmark of an efficient precedent…. It is thus unsurprising that dissenting opinions continue to appear in the courts of appeals regarding whether the governmental unit received actual notice and, in particular, whether the government had the subjective awareness of fault that this Court has required” (citations omitted). Even though “[t]he value of predictability is served by adhering to workable precedent, even if it is wrong … a bad and unclear rule that continuously generates confusion cannot be regarded as settled and thus cannot claim the full authority of stare decisis.” Here Zuniga reported that the city employee told her that he may have run a red light. That admission should have been enough to put the city on notice that “Zuniga was likely to claim that the City employee was at fault and caused her injuries.” While the Court (and the courts below) were right to determine that the city had actual notice in this case, what will happen in the next case, and the one after that?
Justice Young suggested one of two solutions. First, the Legislature could intervene and revise the statute. Second, the Court could overrule Cathey and give effect to the plain text of the statute as it is. But, he added, “our unstable Cathey-infused jurisprudence inhibits legislative responses; no one knows exactly what the target is. I see only upside to reconsidering Cathey.” This isn’t the first time Justice Young has written in support of his philosophy that the law ought “to turn on clear rules—not on complex, ever-evolving tests or vague standards that cannot general predicable results.” We have no doubt that his five colleagues in the majority in this case agree with that position and, perhaps, take the next opportunity that comes along to address it. We read a lot of Tort Claims Act cases, and Justice Young is right. Way too much time and expense is used up in arguing about the notice requirement. It is probably time for Cathey to go.
