¶1concurring and dissenting.
¶2I respectfully dissent from that portion of the majority opinion that holds there is no tolling provision applicable to the Texas Tort Claims Act’s six-month presuit notice requirement for minors. While I concur with the majority’s holding that the presuit notice is mandatory and, therefore, a jurisdictional prerequisite to waiver of sovereign immunity under the Act, I cannot agree with the conclusion that the pre-suit notice period is not tolled during the minority of a claimant.
¶3The State contends all the cases tolling the presuit notice requirement for minors or those with disabilities are based solely on the open courts provision of our constitution — a right that only applies to causes of action grounded in our common law, as opposed to statutory causes of action. The State also contends that since the Act creates a cause of action against the State that otherwise does not exist, there is no basis for tolling the pre-suit notice provision during the claimant’s minority. To support its position, the State points out the different treatment of wrongful death claims as opposed to survival claims.
¶4Historically, our courts have not tolled the statute of limitations for minors with wrongful death claims but have tolled it for minors with survival actions. Gross v. Kahanek, 3 S.W.3d 518, 521 (Tex.1999). Wrongful death actions did not exist at common law, and therefore any notice provisions relative to such claims are always upheld. Brown v. Shwarts, 968 S.W.2d 331, 334 (Tex.1998).
¶5However, the Act is not a cause of action. It is a statute that creates a limited waiver of immunity for claims against the State based on causes of action that otherwise might exist at common law, to the *267extent they fit within the types of claims defined by the Act. Here, the appellees’ cause of action is a common-law claim of negligence based on a theory of premises liability. I believe it is inconsistent to toll a statute of limitations for a particular cause of action due to a disability, yet enforce a presuit notice requirement during that disability that results in loss of a claim that would otherwise exist. Because the appellees’ cause of action is rooted in our common law, I believe failing to toll the presuit notice requirement during a claimant’s minority is a violation of the open courts doctrine. Enforcing the pre-suit notice provision results in forfeiture of a claim the minor appellees would otherwise be able to pursue. For these reasons, I would affirm the trial court’s judgment.