OPINION
Opinion by
On bеhalf of their minor child, Kaelyn, Marcus Martinez and Mary Koog appeal the trial court’s dismissal of their claim brought under the Texas Tort Claims Act (“TTCA”). We are presented with two issues on appeal: whether the TTCA’s six-month notice requirement is a jurisdiction *482 al requirement and whether Kaelyn’s minority tolls the notice requirement.
Background
On behalf of Kaelyn, Marcus Martinez and Mary Koog filed suit for medical malpractice pursuant to the TTCA against appellee Val Verde County Hospital District d/b/a Val Verde Regionаl Medical Center (“Val Verde”), Dwayne Riegel, CRNA, and Allen Anderson, MD. In response to this lawsuit, Val Verde filed a plea to the jurisdiction, arguing that because the plaintiffs did not provide notice of their claim to Val Verde within six months of the date of injury, their claims against Val Verde should be dismissed. It is undisputed that the plaintiffs first provided notice to Val Verde on October 19, 1998, seven months after the date of injury. And, there is no evidence in the record that before October 19, 1998, Val Verde had actual notice of thе plaintiffs’ claim. The trial court granted Val Verde’s plea to the jurisdiction and severed the claims against Val Verde from those against Riegel and Anderson. Martinez and Koog appeal, arguing that the trial court erred in granting the plea to the jurisdiction because (1) failing to provide notice pursuant to the TTCA’s six-month notice provision is an affirmative defense, not a jurisdictional requirement and (2) because of their daughter’s minority, the TTCA’s six-month notice provision is tolled. 1
Standard of review
We review a trial cоurt’s ruling on a plea to the jurisdiction de novo.
Texana Cmty. MHMR Ctr. v. Silvas,
Jurisdiction
Martinez and Koog argue that pursuant to
Dubai Petroleum Co. v. Kazi,
We must, thus, determine whether the TTCA’s six-month notice requirement is a jurisdictional requirement or simply a statutory prerequisite under
Dubai.
Texas has long recognized that sovereign immunity, unless waived, protects the State, its agencies, and officials from lawsuits for damages.
Fed. Sign v. Tex. S. Univ.,
Additionally, section 101.101 states that a “governmеntal unit is entitled to receive notice of a claim against it under this chapter not later than six months after the day that the incident giving rise to the claim occurred.” Tex. Civ. Prac. & Rem.Code Ann. § 101.101(a) (Vernon 1997). According to Martinez and Koog, section 101.101(a)’s six-mоnth notice requirement gives the governmental unit “immunity from liability,” not “immunity from suit.” As such, they argue that a plea to the jurisdiction was the incorrect procedural vehicle here. Immunity from suit bars an action against the State unless the State expressly consents tо suit. Tex. Dep’t of Transp. v. Jones, 8 S.W.3d 636, 638 (Tex.1999). The party suing the governmental entity must establish the State’s consent, which may be alleged either by reference to a statute or to .express legislative per *484 mission. Id. If the State has not consented to suit, the State may contest the trial court’s subjеct matter jurisdiction by filing a plea to the jurisdiction. See id. By contrast, immunity from liability does not affect a court’s jurisdiction to hear a case. Id. Immunity from liability protects the State from judgment even if the Legislature has expressly consented to the suit. Id. Like other affirmative defenses to liability, it must be pled or else it is waived. Id.
To determine whether the TTCA’s six-month notice requirement falls under immunity from liability, and is, therefore, an affirmative defense, or whether it falls under immunity from suit, making compliance with it a jurisdictional requirement, we must lоok to the plain meaning of the statute.
Tune v. Tex. Dep’t of Pub. Safety,
Because section 101.021 invokes the trial court’s jurisdiction, it follows that compliance with section 101.101’s six-month notice requirement is not necessary to invoke the jurisdiction of the trial court. The six-month notice requirement, therefore, falls under immunity from liability, and is an affirmative defense.
2
See id.
Failure to comply with this six-month notice requirement, however, cannot be cured through abatemеnt. Notice provisions defined in terms of date of suit can be cured through abatement.
See Hines v. Hash,
Because section 101.101’s notice requirement is an affirmative defense, it should not have been raised in a plea to the jurisdiction. Like other affirmative defenses, a motion for summary judgment is the appropriate procedural vehicle. We, therefore, sustain appellants’ first issue.
Minority Under the Texas Tort Claims Act
Appellants frame their second issue as follows: The trial court erred in granting Val Verde’s plea to the jurisdiction based upon sovereign immunity because Kaelyn (the minor) operated under the legal disability of minority at the time the lawsuit was filed, tolling the notice provisions under the Tеxas Tort Claims Act. Appellants rely on
Hopkins v. Spring Independent School District,
There is not, however, a similar statute providing for the tolling of the notice requirement for those with legal disabilities. Despite this fact, appellants urge us tо look to section 16.001 of the Texas Civil Practice and Remedies Code and create a similar rule tolling the TTCA’s notice requirement. We decline to do so. The State has sovereign immunity from suit unless it so consents. The TTCA provides for such waiver of sovеreign immunity under certain circumstances. The TTCA does not, however, contain any provision tolling the notice period for minors. The Legislature could have provided for an extension or tolling of the notice requirement as it did in the Texas Deceptive Trade Practices Act. See Tex. Bus. & Com. Code Ann. § 17.565 (Vernon 2002). Unless and until the Legislature provides for such a provision in the TTCA, we decline to create the common-law rule requested by appellants. We, therefore, hold that the TTCA’s six-month notice requirement was not tolled for Kaelyn’s minority. 3
Moreover, this decision is consistent with our opinion in
Streetman v. University of Texas Health Science Center,
Although we, like the First Court of Appeals, believe the result is unfair, we must note that appellants’ cause of actiоn exists solely by virtue of the TTCA [Texas Tort Claims Act], which waives sovereign immunity under certain circumstances; but for the statute, the doctrine of sovereign immunity would have prohibited this suit. Being bound by the procedural devices in the statute, appellants must strictly comрly with the notice provision. Despite the effect on appellants’ special situation, we have no alternative but to defer to the legislature for any statutory changes designed to permit the application of the discovery rule. Because we find the discovery *486 rule does not apply to the TTCA notice provision, we overrule appellants’ points of error.
CONCLUSION
Because Val Verde’s plea to the jurisdiction was the improper procedural vehicle, wе reverse the judgment of the trial court with respect to appellants’ claim brought on behalf of Kaelyn and remand this cause to the trial court for further proceedings consistent with this opinion. However, with respect to appellants’ individual claims, we affirm the judgment of the trial court.
Notes
. Martinez and Koog also brought individual claims against Val Verde. Although these claims were dismissed by the granting of the plea to the jurisdiction, Martinez and Koog only appeal the trial court’s judgment with respect tо the claims brought on behalf of Kaelyn. Thus, with respect to appellants’ individual claims, we affirm the judgment of the trial court.
. This issue has divided the courts of appeal.
See Stanton v. Univ. of Tex. Health Sciences Ctr.,
. In their brief, appellants urge us to consider whether Kaelyn's legal disability "implicates” federal and state constitutional due process concerns. To any extent appellants were attempting to bring this "implication” as a separate issue, they have failed to do so. Tex. R.App. P. 38.1(h).