Today, the Texas Supreme Court holds in Univ. of Tex. Med. Ctr. at Dallas v. Loutsenhiser (try saying that three times fast) that failure to give notice of a claim under section 101.101 of the Tort Claims Act is a non-jurisdictional defect. Thus, lack of notice cannot be challenged by plea to the jurisdiction. Some of you, of course, practice in appellate districts where this already was the rule (e.g., Dallas and San Antonio). By way of throwing us a bone, however, the court also strongly suggests that trial courts can, and often should, resolve the notice issue by summary judgment, since lack of notice is a "complete defense" to a Tort Claims Act suit.

I'm interested to see how (if at all) this opinion will affect the way my more learned colleagues will do their business in Tort Claims Act cases.

This has just arisen in a car crash case. The County did not get a claim until right before the statute of limitations expired; we filed suit after the statute of limitations expired, but the defendant counterclaimed concurrently with his original answer.

Since the Supreme Court's decision in Reata Construction vs. City of Dallas suggests that we can't raise immunity via a plea to the jurisdiction, even if the case has not yet been designated for publication, I am going to try to raise lack of notice as an affirmative defense and then in a summary judgment motion to argue that the County's immunity from damages has not been waived.

Another tantalizing twist to that issue is that the Supremes granted the City of Dallas's motion for rehearing and heard argument today on Reata Construction. I note that, this time, arguing on behalf of the city was none other than former justice Hankinson. So the last chapter on your ability to assert immunity to a counterclaim may be rewritten a bit.