Full Opinion

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN NO. 03-25-00632-CV Brenda Boulware, Appellant v. City of Austin, Acting By and Through its Agent d/b/a Austin Energy and d/b/a Austin Bergstrom Airport, Appellee FROM THE 353RD DISTRICT COURT OF TRAVIS COUNTY NO. D-1-GN-24-005998, THE HONORABLE CORY LIU, JUDGE PRESIDING MEMORANDUM OPINION Brenda Boulware sued the City of Austin for damages after she fell in the Austin Bergstrom International Airport. The City filed a plea to the jurisdiction, which the trial court granted. We affirm. BACKGROUND Boulware’s petition alleges the following facts: On September 7, 2022, Plaintiff Boulware arrived at the Austin Bergstrom Airport for her flight to Las Vegas. Plaintiff proceeded to the terminal where she took a seat waiting for the boarding announcement. Prior to her boarding announcement for her flight she felt the need to visit the women’s bathroom. As she proceeded to walk in that direction, the lights suddenly went out without warning leaving her in complete darkness. There was no backup lighting in the terminal and Plaintiff violently crashed into a table with cha[i]rs causing her to fall and land with full force unto the floor. She yelled and with the aid of a flashlight she went back to her seat. , [sic] As a direct and proximate cause of the fall Plaintiff sustained serious injuries and severe pain to her left leg, shoulder and left arm. She had severe pain and [sic] during her course of treatment as well and her condition required surgical intervention and physical therapy. Boulware’s brief on appeal elaborates on the facts stated in the petition. The brief states that Boulware was at the airport before sunrise. After the outage, the flight was delayed for several hours until power was restored. During that time, Boulware complained about her fall to American Airlines personnel, who directed her to communicate with airport administration. She asserts that she called airport administration the following day. Because the trip was prepaid, Boulware boarded the flight and traveled to Las Vegas. The City disputes as unsupported by the record those factual assertions that go beyond the facts stated in Boulware’s petition. Initially, Boulware was represented by attorney Scott Ogle. She states on appeal that Ogle passed away sometime in 2023. Boulware received her file from Ogle’s paralegal. On September 9, 2024, represented by new counsel, she sued the City for negligence, premises liability, and gross negligence, all based on the premise that the City failed to provide and maintain lighting in the airport and failed to provide warnings relating to the possible dangers that might result from an absence of lighting. 1 On December 9, the City filed its answer and plea to the jurisdiction, asserting that the trial court lacked jurisdiction over the suit because Boulware “failed to show that this Court has jurisdiction over this suit under the Texas Tort Claims Act [TTCA] or any other statute waiving the government’s immunity from suit” and that Boulware “failed to plead facts sufficient to bring this suit within the narrow exceptions of the TTCA.” The City specifically pleaded that Boulware has no evidence of the required notice under section 1 Boulware’s petition names Austin Energy as a defendant, but on appeal she states that “no claims have been made against Austin energy” and she “has only made a premises liability claim against the City of Austin’s Bergstrom -Austin Airport.” 2 101.101 of the TTCA. See Tex. Civ. Prac. & Rem. Code § 101.101(a), (c). A hearing on the plea to the jurisdiction was set for May 13, 2025, nine months after the petition was filed. At the hearing, the City presented arguments on its plea to the jurisdiction. Boulware’s counsel appeared at the hearing, but announced “not ready” and made the following request: What I am requesting at this time is just some additional time to be able to submit our response, just to—you know, maybe a week. By this time next week, we can submit some additional information to address some of the issues that she brought up in her plea to the jurisdiction. Counsel further explained that she had prepared a response but “did not get all of the information that we needed to be able to adequately present her position.” The trial court responded, “I think a week is fine,” and explained that if the response “hasn’t come from you yet after a few weeks, you know, I very well may just grant it, but I think, you know, a week is certainly—I have no problem with that.” The court clarified that the response should be submitted with a motion for leave to file since the response would be untimely. Counsel stated, “We will e-mail that response, Judge.” Ten days after the hearing, on May 23, the trial court granted the City’s plea to the jurisdiction and dismissed Boulware’s claims with prejudice. On May 27, Boulware filed a motion for leave to file the response to the plea to the jurisdiction along with her response, which attached an affidavit from Boulware describing an email from Deon Ivy, who works at the airport, and a letter from Scott Ogle to the City of Austin, and referencing the email and letter as exhibits. 2 On June 23, Boulware filed a motion for new trial, which attached Boulware’s 2 The response and accompanying affidavit are included in the clerk’s record, but the email from Ivy and letter from Ogle are not attached to the response. Instead, these items are attached only to the motion for new trial. 3 affidavit along with the email from Ivy and the letter from Ogle. The City filed a response on July 21. The motion for new trial was overruled by operation of law. Boulware appeals. ANALYSIS As a political subdivision of the State, the City is protected from suit and liability by governmental immunity unless the Legislature has clearly and unambiguously waived it. See City of Conroe v. San Jacinto River Auth., 602 S.W.3d 444, 457 (Tex. 2020). Because governmental immunity implicates the trial court’s subject-matter jurisdiction, it is properly raised in a plea to the jurisdiction. Id. A plaintiff must affirmatively demonstrate the trial court’s jurisdiction over her claims against a political subdivision by showing that a statutory waiver of immunity applies to her claims and negating provisions that create exceptions to the waiver. Rattray v. City of Brownsville, 662 S.W.3d 860, 865–66 (Tex. 2023). We review a trial court’s ruling on a plea to the jurisdiction de novo. City of Austin v. Quinlan, 669 S.W.3d 813, 818 (Tex. 2023). When, as here, the government’s plea challenges the existence of jurisdictional facts, the trial court must consider relevant evidence submitted by the parties when necessary to resolve the jurisdictional issue raised. City of Austin v. Powell, 704 S.W.3d 447 (Tex. 2024) (citing Texas Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 227 (Tex. 2004)). When there is a dispute over jurisdictional facts concerning the applicability of the waiver of immunity, “the plaintiff must raise a genuine issue of material fact as to the immunity waiver’s applicability.” Id. at 448. “When that happens, ‘we take as true all evidence favorable to the nonmovant and indulge every reasonable inference and resolve any doubts in the nonmovant’s favor.’” Id. (citing City of San Antonio v. Maspero, 640 S.W.3d 523, 528–29 (Tex. 2022)). “If 4 the evidence raises a fact question as to the court’s jurisdiction, then the trial court may not grant the plea.” Id. (citing University of Tex. at Aus. v. Hayes, 327 S.W.3d 113, 116 (Tex. 2010)). “But the court must grant the plea if the evidence fails to raise a question as to the existence of a jurisdictional fact.” Id. (citing Maspero, 640 S.W.3d at 529). On appeal, Boulware asserts that (1) the City had actual notice of her claim sufficient to satisfy section 101.101(a) of the TTCA, (2) she falls within a waiver of immunity under the TTCA, and (3) “the Austin ordinance providing immunity for the Austin Energy violates the Texas ‘Open Courts’ provision of the Texas Constitution and the U.S. Constitution Fourth Amendment, guarantying due process but has no place in this case, as [] no claims have been made against Austin Energy.” 3 The TTCA provides that a “governmental unit in the state is liable for . . . personal injury . . . caused by a condition or use of tangible personal or real property if the governmental unit would, were it a private person, be liable to the claimant according to Texas law.” Tex. Civ. Prac. & Rem. Code § 101.021. To qualify for that waiver of immunity, a plaintiff must, within six months, either provide a governmental unit with formal notice of a claim, see id. § 101.101(a), or show that the governmental unit had “actual notice . . . that the claimant has received some injury,” id. § 101.101(c); Colquitt v. Brazoria County, 324 S.W.3d 539, 543 (Tex. 2010) (per curiam) (“The Texas Tort Claims Act requires that a governmental 3 Boulware also asserts that “there was no notice of hearing filed” for the hearing on the plea to the jurisdiction. In support of this contention, she cites the docket record in the clerk’s record. The docket record lists two separate entries for “Notice of Hearing on Defendant City of Austin’s Plea to the Jurisdiction,” one on March 31, 2025, and another on April 15, 2025. The City in its brief states that “[o]n April 15, 2025, Defendant filed and served a notice of hearing for the Plea.” Boulware did not complain at any point in the trial court about not having received notice of the hearing on the plea to the jurisdiction, which her counsel attended. Accordingly, she waived any argument relating to this contention. See Tex. R. App. P. 33.1. 5 unit obtain notice of a claim against it within six months of the incident giving rise to the claim.”); see City of Dallas v. Carbajal, 324 S.W.3d 537, 537 (Tex. 2010) (per curiam). The notice requirements in the TTCA are jurisdictional. See Tex. Gov’t Code § 311.034 (“Statutory prerequisites to a suit, including the provision of notice, are jurisdictional requirements in all suits against a governmental entity.”); Worsdale v. City of Killeen, 578 S.W.3d 57, 62 (Tex. 2019). A governmental unit has actual notice under the TTCA if it has subjective knowledge of (1) a death or injury; (2) the governmental unit’s alleged fault in producing or contributing to the death or injury; and (3) the identity of the parties involved. Reyes v. Jefferson County, 601 S.W.3d 795, 797–98 (Tex. 2020) (per curiam) (quoting Cathey v. Booth, 900 S.W.2d 339, 341 (Tex. 1995)). The actual-notice standard requires evidence that the governmental unit was “subjectively aware that its alleged acts or omissions contributed to or produced injuries in the way the claimant ultimately alleges.” Worsdale, 578 S.W.3d at 64; see University of Tex. Sw. Med. Ctr. v. Estate of Arancibia, 324 S.W.3d 544, 548–49 (Tex. 2010) (explaining that actual notice must provide government unit same notice entitled by formal notice). However, confession of fault or actual liability is not required to constitute subjective awareness under the actual-notice standard. See Reyes, 601 S.W.3d at 798. Boulware does not dispute that the City did not receive timely formal notice of her claim but urges that she demonstrated that the City had actual notice under section 101.101(c). Boulware’s petition is silent regarding notice to the City of her claim, and she filed nothing else before the trial court ruled on the plea to the jurisdiction. Therefore, when the trial court ruled on the plea, there was no allegation and no evidence of the City having been notified of Boulware’s claim within six months of the incident. See FinServ Cas. Corp. v. Transamerica 6 Life Ins., 523 S.W.3d 129, 147 (Tex. App.—Houston [14th Dist.] 2016, pet. denied) (explaining that taking judicial notice of documents that trial court did not consider was not appropriate because “appellate courts generally cannot consider evidence not before the trial court when the court made the challenged ruling” (citing Bowden v. Phillips Petroleum Co., 247 S.W.3d 690, 707 (Tex. 2008); University of Tex. v. Morris, 344 S.W.2d 426, 429 (Tex. 1961))); Barnard v. Barnard, 133 S.W.3d 782, 789 (Tex. App.—Fort Worth 2004, pet. denied) (“When reviewing the merits of the trial court’s decision, [appellate courts generally] are limited to considering the material that was before the trial court at the time that it ruled.”). However, assuming that the trial court should have considered Boulware’s response, we conclude that failure to do so was harmless error. See Tex. R. App. P. 44.1(a). Boulware’s affidavit states that on September 8, 2022, she “found the number for the airport and called to report [her] injury.” She notes that on September 12, she received an email from Deon Ivy acknowledging her call and referencing a report that she had provided to the City, which she describes as “giving notice of the incident.” The contents of this report are unknown, as the report itself is not in the record, and her affidavit does not detail what her “notice of the incident” included. Nor does the affidavit further describe the email from Ivy. It mentions the September 15 letter from her former attorney, in which he refers to his handling of a “personal injury claim” that occurred “when the lights went out in the airport.” She avers that the City “knew the location, had knowledge of outage from me and their own sources and were aware that I had personal injuries. . [sic] The extent and duration of my injuries could not be known until March of 2023, when I had the first medical records available.” Under the Texas Supreme Court’s standard, the City would have actual notice under the TTCA if it had subjective knowledge of (1) a death or injury; (2) the governmental 7 unit’s alleged fault in producing or contributing to the death or injury; and (3) the identity of the parties involved. Reyes, 601 S.W.3d at 797–98. We conclude that the evidence provided by Boulware’s affidavit raises a fact question regarding the first and third elements—the City’s subjective knowledge of her injury and the identity of the parties involved. To raise a fact issue as to the second element—the City’s alleged fault in producing or contributing to the injury— “there must be subjective awareness connecting alleged governmental conduct to causation of an alleged injury to person or property in the manner ultimately asserted.” Worsdale, 578 S.W.3d at 65. Boulware’s affidavit, which is the only evidence the record shows was before the trial court prior to the motion for rehearing, does not connect any act or omission by the City to her injury. It references the power outage but does not assert that any causal connection between the outage and her injury was communicated to the City. At no point does she assert that she described her injury to the City such that it could have inferred the connection between a power outage and her alleged injury. See id. Although she alleged in her response to the plea that her injury occurred when she “tripp[ed] over tables and chairs across from the Salt Lick BB[Q]” while walking toward a restroom during a power outage that rendered her “blinded by the sudden darkness,” her affidavit provides no evidence that she notified the City of these allegations within six months of the incident, and if so, whether she attributed fault for her injury to the owner of the tables and chairs or to the City’s power outage or both. See Carbajal, 324 S.W.3d at 539 (holding police report showing road accident happened because road was not properly blocked did not provide City with subjective awareness of fault because it did not imply or expressly state that City was at fault but merely “describes what apparently caused the accident (missing barricades)” without saying “who failed to erect or maintain the barricades” and stating “a routine safety investigation . . . is insufficient to provide actual notice.”). Boulware does not assert that she communicated 8 any description of acts or omissions by the City to any representative of the City. Thus, there is no evidence that the City had notice of its alleged fault in producing or contributing to her injury. See Reyes, 601 S.W.3d at 798. On this record, Boulware’s affidavit did not demonstrate that the city was “subjectively aware that its alleged acts or omissions contributed to or produced injuries in the way the claimant ultimately allege[d].” Worsdale, 578 S.W.3d at 64. Accordingly, she did not “raise a genuine issue of material fact as to the immunity waiver’s applicability.” City of Austin, 704 S.W.3d at 448. We overrule Boulware’s first issue and do not reach her remaining issues. See Tex. R. App. P. 47.1. CONCLUSION Because Boulware did not affirmatively demonstrate the trial court’s jurisdiction over her claims against the City by showing that a statutory waiver of immunity applies, we affirm the order of the trial court. __________________________________________ Rosa Lopez Theofanis, Justice Before Justices Triana, Theofanis and Crump Affirmed Filed: September 25, 2026 9