JOHN DONOVAN, Justice.
This appeal arises from the denial of a plea to the jurisdiction. For the reasons stated below, we reverse and render.
On February 4, 2014, there was a collision between a motor vehicle driven by Esmeralda Balderas and a Needham Fire & Rescue Company truck, driven by Joseph Galleno, Jr. There was a passenger in Balderas' vehicle, her minor daughter, Heidi Padilla.
On May 22, 2015, Balderas filed suit against the Needham Fire & Rescue Company, Montgomery County Emergency Services District No. 4 ("ESD No. 4"), Galleno, and Montgomery County, Texas, for personal injuries sustained in the collision. Galleno was dismissed from the suit pursuant to section 101.106(e)
STANDARD OF REVIEW
We review a trial court's ruling on a plea to the jurisdiction de novo. Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 224 (Tex. 2004). If the evidence creates a fact question regarding jurisdiction, the trial court cannot grant the plea, and the fact question will be resolved by the factfinder. Miranda, 133 S.W.3d at 227-28. If the relevant evidence is undisputed or fails to raise a fact question, the trial court rules on the plea as a matter of law. Id. at 228.The standard of review for a plea to the jurisdiction based on evidence "generally mirrors that of a summary judgment under Texas Rule of Civil Procedure 166a(c)." Id.; see Thornton v. Ne. Harris Cty. MUD 1, 447 S.W.3d 23, 32 (Tex. App.-Houston [14th Dist.] 2014, pet. denied). Under this standard, we take as true all evidence favoring the nonmovant and draw all reasonable inferences and resolve any doubts in the nonmovant's favor. Miranda, 133 S.W.3d at 228. "[A]fter the state asserts and supports with evidence that the trial court lacks subject matter jurisdiction, we simply require the plaintiff[ ], when the facts underlying the merits and subject matter jurisdiction are intertwined, to show that there is a disputed material fact regarding the jurisdictional issue." Id.; see City of Galveston v. Murphy, No. 14-14-00222-CV, 2015 WL 167178, at *2 (Tex. App.-Houston [14th Dist.] Jan. 13, 2015, no pet.) (mem. op.) (if the movant presents conclusive proof that the trial court lacks subject matter jurisdiction, then the nonmovant must present evidence sufficient to raise a material issue of fact regarding jurisdiction, or the plea will be sustained).
The parties do not dispute that Needham Fire & Rescue and ESD No. 4 are governmental units and immune from suit, except to the extent their immunity may be waived by the Texas Tort Claims Act ("TTCA"). See Tex. Civ. Prac. & Rem. Code Ann. § 101.001 (West Supp. 2016). In their first issue, appellants contend immunity was not waived because Balderas failed to comply with the notice provision of the TTCA.
The TTCA requires a plaintiff to notify a governmental unit of a claim in order to invoke a waiver of sovereign immunity under the statute. Tex. Civ. Prac. & Rem. Code § 101.101 (West 2011).
Formal notice must be submitted in writing. Cathey v. Booth, 900 S.W.2d 339, 340 (Tex. 1995) (per curiam). Further, the notice must be received within six months after the day of the incident giving rise to claim. Tex. Civ. Prac. & Rem. Code § 101.101(a).
The record includes a copy of a letter addressed to the Needham Fire Department, dated April 30, 2014. An affidavit was filed by Steven Nelson, an employee of Balderas' former counsel, swearing that:
However, there is no evidence the letter was received by Needham Fire & Rescue or ESD No. 4 on or before August 5, 2014. The affidavit of Helen Capozzelli, custodian of the official records for Needham Fire & Rescue and the records management officer for ESD No. 4, avers as follows:
According to the plain language of the TTCA, it is the date that the governmental unit receives notice—not when the claimant sends notice—that is controlling. See Tex. Civ. Prac. & Rem. Code § 101.101(a); Adams v. City of Dallas, No. 05-14-1143-CV, 2015 WL 7280893, at *2 (Tex. App.-Dallas Nov. 18, 2015, no pet.) (mem. op.).
We therefore next address whether there is any evidence that Needham Fire & Rescue or ESD No. 4 had actual notice, an exception to the formal notice requirement. See Tex. Civ. Prac. & Rem. Code § 101.101(c) (West 2011). For a governmental unit to have actual notice, it must have knowledge of (1) a death, injury, or property damage; (2) the governmental unit's alleged fault producing or contributing to it; and (3) the identity of the parties involved. Cathey, 900 S.W.2d at 341; see also Simons, 140 S.W.3d at 344-48 (discussing the Cathey elements). Actual notice may be imputed to a governmental unit when its fault is obvious or an agent charged with a duty to investigate and report to the unit receives notice of the three Cathey elements. Angleton Danbury Hosp. Dist. v. Chavana, 120 S.W.3d 424, 427 (Tex. App.-Houston [14th Dist.] 2003, no pet.). If there is evidence to connect the accident to an action or omission by the governmental unit, such that it should have known of its potential culpability, an incident that triggers an investigation and accident report will impute such notice. Id. A governmental unit must have knowledge that equates to the same notice to which it is entitled under the statute. Univ. of Texas Health Sci. Ctr. at Houston v. Cheatham, No. 14-14-00628-CV, 2015 WL 3878111, at *3 (Tex. App.-Houston [14th Dist.] June 23, 2015, no pet.) (mem. op.). Such knowledge "`includes subjective awareness of its fault, as ultimately alleged by the claimant, in producing or contributing to the claimed injury.'" Univ. of Tex. Sw. Med. Ctr. at Dallas v. Estate of Arancibia, 324 S.W.3d 544, 548-49 (Tex. 2010) (quoting Simons, 140 S.W.3d at 347).
Balderas contends appellants had actual notice based upon the following:
The accident report also contains the following information:
The investigator did not find the fire truck to be a contributing factor. The letter sent by Balderas' lawyer contends that witnesses who "fail to appear in the police report . . . will verify they never heard a siren before the wreck occurred" but Balderas has not shown that appellants had timely notice of this alleged fault.
Balderas claims Padilla's statement the light was green "would clearly have given the fire department notice that at least ONE plaintiff believed the fire truck to be in the wrong." We disagree. Balderas was not charged with running a red light, but with failing to yield her right of way — the green light — to an emergency vehicle. The fact that the light was green was the grounds for the charge levelled against Balderas. It is not evidence that put appellants on notice that more than a year later Balderas would claim appellants were at fault.
Accident reports are often insufficient to provide actual notice under the Tort Claims Act. See City of Dallas v. Carbajal, 324 S.W.3d 537, 538-39 (Tex. 2010) (per curiam) (holding a police report did not provide the city with actual notice of a motorist's claim and dismissing the suit for lack of jurisdiction); Rojas v. Cty. of El Paso, 408 S.W.3d 535, 541-42 (Tex. App.-El Paso 2013, no pet.) (concluding the notice requirements were not met because there was no evidence of the County's subjective awareness that it was at fault for appellants' injuries); City of San Antonio v. Herrera, No. 04-13-00304-CV, 2013 WL 5653311 (Tex. App.-San Antonio Oct. 16, 2013, pet. filed) (mem. op.) (concluding police reports failed to raise a fact issue as to whether the City had knowledge of its alleged fault in producing or contributing to the plaintiff's injury). Merely investigating an accident also does not provide a governmental unit with subjective awareness of its fault. Simons, 140 S.W.3d at 347-48.
Applying these principles, the mere presence of the chief of the fire department at the scene of the collision does not raise a fact issue regarding actual notice. See City of Houston v. Atkins, No. 14-10-01265-CV, 2011 WL 1744207, at *3 (Tex. App.-Houston [14th Dist.] May 5, 2011, no pet.) (mem.op.) (holding the evidence failed to present a jurisdictional fact issue regarding actual notice even though City employees were present at the scene of the accident). And in this case, the investigative report assigned fault for the accident to Balderas, not Galleno. See City of Houston v. McGowen, 14-13-00415-CV, 2014 WL 2039856, at *6 (Tex. App.-Houston [14th Dist.] May 15, 2014, no pet.) (concluding the City did not have actual notice where, among other things, the report did not assign fault); cf Ortiz-Guevara v. City of Houston, No 14-13-00384-CV, 2014 WL 1618371, at *2-4 (Tex. App.-Houston [14th Dist.] Apr. 22, 2014, no pet.) (mem. op.) (finding police report raised a fact question on the City's actual notice because it assigned fault to the City police officer involved in the accident). In fact, the record reflects that during the hearing on the plea to the jurisdiction appellants' counsel stated, without objection or correction, "there was a claim made against the plaintiff's insurance carrier, and it was — for the fire truck damage. It was paid." While this does not establish fault, it is consistent with appellants' position that they had no knowledge of their alleged fault in causing or contributing to Balderas' injuries.
We conclude there is no evidence in the investigative report record that raises a fact question as to appellants' subjective awareness of its alleged fault. Thus there is no fact issue that appellants received actual under subsection (c) of section 101.101. See Tex. Civ. Prac. & Rem. Code § 101.101(c) (West 2011).
Under the applicable standard of review, we conclude there is no evidence Needham Fire & Rescue or ESD No. 4 received formal notice of Balderas' claim. Further, the evidence does not raise a fact question as to whether Needham Fire & Rescue or ESD No. 4 had actual notice. Lack of notice is an incurable jurisdictional defect. Accordingly, we sustain appellants' first issue. It is therefore unnecessary to address appellants' remaining issues. We reverse the trial court's order denying appellants' plea to the jurisdiction and render judgment dismissing Balderas' claims for lack of subject-matter jurisdiction.
Tex. Civ. Prac. & Rem. Code Ann. § 101.101 (West 2011).