Texas Department of Transportation v. Daniel K. Christ and Nicole D. Salinas

NUMBER 13-20-00339-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG

TEXAS DEPARTMENT OF
TRANSPORTATION, Appellant,

v.

DANIEL K. CHRIST AND
NICOLE D. SALINAS, Appellees.

On appeal from the 129th District Court
of Harris County, Texas.

MEMORANDUM OPINION

Before Justices Benavides, Hinojosa, and Silva
Memorandum Opinion by Justice Silva

Appellant Texas Department of Transportation (TxDOT) appeals the trial court’s

denial of its plea to the jurisdiction and no-evidence motion for summary judgment of

appellees, Daniel K. Christ and Nicole D. Salinas’s, tort claims. By five issues, which we
treat as one, TxDOT alleges the trial court erred by denying its motions because

appellees’ claims are barred by sovereign immunity and do not fall within the limited

waiver of immunity. We reverse and render.

I. BACKGROUND

On November 5, 2016, Kimberly Dillard was traveling east bound on West Bay

Area Boulevard in Houston. 1 At the time, TxDOT and its contractors were performing

construction on West Bay Area Boulevard. The road was not in its normal configuration

due to the ongoing construction—lanes had been shifted or closed off. The traffic was

divided by the “yellow striping and buttons” that Williams Brothers Construction Company

(Williams Brothers) utilized instead of the originally planned low-profile concrete barriers.

Dillard stated she intended to take a left turn from West Bay Area Boulevard onto the

access road of Interstate 45. Although Dillard was driving under the speed limit, she did

not notice any signs warning of an upcoming lane shift or signs designating lanes. Dillard

mistakenly believed she was in the correct lane to turn left but was actually in the lane

designated for west-bound traffic. Dillard and appellees, who were on a motorcycle,

collided head on. Both appellees sustained incapacitating injuries and were taken to the

hospital.

Appellees filed a suit against multiple parties, including TxDOT. After extensive

discovery, TxDOT filed a plea to the jurisdiction asserting sovereign immunity and a no-

evidence motion for summary judgment. TxDOT’s plea to the jurisdiction challenged the

1 This case is before this Court on transfer from the Fourteenth Court of Appeals in Houston

pursuant to a docket equalization order issued by the Supreme Court of Texas. See TEX. GOV’T CODE ANN.
§ 73.001.

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jurisdictional facts which would give rise to a waiver of sovereign immunity. TxDOT’s no-

evidence motion for summary judgment alleged that “[p]laintiffs have not identified,

alleged, or evidenced any non-discretionary maintenance defect under TxDOT’s control

that caused any actionable damages . . . .” 2 In their third amended petition, appellees

alleged TxDOT was negligent by: (1) failing to create and implement a traffic control plan

that was safe for the driving public; (2) failing to warn the public of a deep left turn;

(3) failing to reduce the speed of the area to a safer speed; and (4) allowing the roadway

to open up before it was safe to do so. Appellees submitted a response with twenty-two

exhibits, including nine depositions. 3

The undisputed facts indicate that when TxDOT begins a road construction project,

an engineer designs a traffic control plan to manage the flow of traffic during construction.

A traffic control plan depicts the layout of various traffic control mechanisms including

pavement markings, signs, lane widths, and other information. Although some minor

changes to a traffic control plan do not require written approval, most changes would

require written approval of an engineer. Williams Brothers was one of TxDOT’s

contractors working on the West Bay Area Boulevard construction. Williams Brothers was

required to follow the traffic control plan during the construction project.

TxDOT’s traffic control plan required a low-profile concrete barrier between the

east-bound and west-bound lanes on West Bay Area Boulevard. Williams Brothers was

2 Because a plea to the jurisdiction attacking jurisdictional facts and motion for no-evidence
summary judgment require the same analysis and have the same result, we focus our analysis on TxDOT’s
plea to the jurisdiction. See Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 225–28 (Tex. 2004).
3 Although exhibits were admitted and referred to in each deposition, appellants did not include

those exhibits with their response to TxDOT’s plea to the jurisdiction and no-evidence motion for summary
judgment.
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responsible for installing the low-profile concrete barrier. However, Leonel Carrizales, a

surveyor working for Williams Brothers, discovered there was not enough space to install

the low-profile concrete barrier, which required a four-foot space in the road, including the

required buffer space on either side. On June 23, 2016, Williams Brothers “red-lined” the

traffic control plan, removing the low-profile concrete barrier installation requirement and

substituting the installation of “four-inch-wide, yellow, solid, removable striping.[ 4 ]”

Williams Brothers emailed the modified plan to TxDOT for approval. Williams Brothers

did not receive written approval to alter the traffic control plan as required by the contract.

However, Michael Honeycutt, Williams Brothers’ chief surveyor, stated in a deposition

that Lloyd Pierce, a consultant working for Volkert, “called someone over at TxDOT and

got a verbal [authorization] because [they] were trying to get this going for that weekend,

and [they] were going to wait for a verbal, or wait for the drawings.” However, Honeycutt

“d[id] not know who [Pierce] called.”

In his deposition, Pierce stated that he did not have the authority to modify a traffic

control plan nor give permission to do so—only an engineer for TxDOT could approve a

modification to a traffic control plan through a signed and sealed modification. When

asked about giving verbal approval to modify the traffic control plan, Pierce stated, “[t]hat’s

not true.” After further questioning, Pierce clarified that he did not recall a conversation

wherein he obtained verbal approval to deviate from the traffic control plan so he could

not say whether it did or did not happen but that he would not have had the authority to

obtain such verbal approval. Pierce said any verbal authorization would have gone

4 The parties have also referred to the yellow line as “stripes and dots.”
4
through TxDOT’s inspector, Juan Embil. Embil similarly testified that he did not recall

whether verbal authorization had been given to deviate from the traffic control plan, but

he would not have been able to give it. Embil agreed that such modification would need

to be approved in writing by a TxDOT engineer. Despite not receiving a signed and sealed

approval to modify the traffic control plan, Williams Brothers proceeded to lay the stripes

and dots on the roadway to divide the conflicting traffic lanes. Although both appellees

and TxDOT argue that TxDOT gave verbal approval, none of the witnesses from TxDOT

acknowledged giving any verbal authorization to alter the traffic control plan.

Edwin Ho was the TxDOT engineer who designed the traffic control plan that was

in effect at the time of the accident. Ho did not recall seeing the proposed amendments

to the traffic control plan from Williams Brothers and did not approve them, either verbally

or in writing. Ho believed that the specific change requested by Williams Brothers should

have been made in writing, rather than by verbal approval.

Melody Galland, TxDOT’s southeast Harris County area engineer, was also

deposed. Galland was the engineer overseeing the project at the time of accident.

Galland testified that, along with relying on manuals and standards, an engineer exercises

discretion in developing a traffic control plan. When asked if Galland believed the curve

near the accident needed a warning sign, she answered “No.” Galland also stated that

the low-profile concrete barrier would not have fit between the west bound and east bound

lanes, nor would construction barrels. Galland believed the stripes and dots were

appropriate given the circumstances.

The trial court denied TxDOT’s plea to the jurisdiction and motion for summary

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judgment by submission. TxDOT appeals the trial court’s denial of its plea to the

jurisdiction and no evidence motion for summary judgment. See TEX. CIV. PRAC. & REM.

CODE ANN. § 51.014(a)(8).

II. SOVEREIGN IMMUNITY

A. Standard of Review

Sovereign immunity protects the State of Texas and its political subdivisions from

liability for negligence. Univ. of Tex. Med. Branch at Galveston v. York, 871 S.W.2d 175,

177 (Tex. 1994). However, immunity may be waived by constitutional or statutory

provisions. Id. If a political subdivision of the State enjoys sovereign immunity, the trial

court does not have subject matter jurisdiction. Tex. Dep’t of Parks & Wildlife v. Miranda,

133 S.W.3d 217, 225–26 (Tex. 2004). Whether a court has subject matter jurisdiction is

a question of law, which we review de novo. Id. at 226. “When a plea to the jurisdiction

challenges the pleadings, we determine if the pleader has alleged facts that affirmatively

demonstrate the court’s jurisdiction to hear the cause.” Id. We will liberally construe the

pleadings and look to the pleader’s intent. Id. “However, if a plea to the jurisdiction

challenges the existence of jurisdictional facts, we consider relevant evidence submitted

by the parties when necessary to resolve the jurisdictional issues raised, as the trial court

is required to do.” Id. at 227.

If the evidence creates a fact question, the plea to the jurisdiction should not be

granted, and the fact issue should be resolved by the trier of fact. Id. at 228. If, on the

other hand, the relevant evidence is undisputed or fails to raise a fact question on the

jurisdictional issue, the trial court should rule on the plea to the jurisdiction as a matter of

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law. Id. This standard generally mirrors that of summary judgment. Id.; see generally TEX.

R. CIV. P. 166a(c). Accordingly, the governmental unit carries the initial burden. 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 plaintiffs, 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. “When reviewing a plea to the

jurisdiction in which the pleading requirement has been met and evidence has been

submitted to support the plea that implicates the merits of the case, we take as true all

evidence favorable to the nonmovant.” Id. “We indulge every reasonable inference and

resolve any doubts in the nonmovant’s favor.” Id.

B. Texas Tort Claims Act

TxDOT argues that the trial court erred by denying its plea to the jurisdiction

because TxDOT retains sovereign immunity for discretionary acts, which include design

decisions. See TEX. CIV. PRAC. & REM. CODE ANN § 101.056(2). As a sub-issue, TxDOT

asserts that immunity was not waived under § 101.060(c) because the condition did not

constitute a special defect for which TxDOT would have the duty to warn. Id.

§§ 101.022(b), 101.060(c). Accordingly, our review of the applicable law will focus on

TxDOT’s arguments and appellees’ responses thereto.

The Texas Tort Claims Act (TTCA) creates limited waivers of sovereign immunity.

TEX. CIV. PRAC. & REM. CODE ANN. §§ 101.001–.109; Miranda, 133 S.W.3d at 224. Section

101.021(2) provides that “[a] governmental unit in the state is liable for . . . personal injury

and death so caused by a condition or use of tangible personal or real property if the

7
governmental unit would, were it a private person, be liable to the claimant according to

Texas law.” TEX. CIV. PRAC. & REM. CODE ANN. § 101.021(2).

Immunity is also waived in certain situations involving a premise defect. Id.

§ 101.022. In a premise defect claim, “the governmental unit owes to the claimant only

the duty that a private person owes to a licensee on a private property, unless the claimant

pays for the use of the premises.” Id. § 101.022(a). “The limitation of duty in [§ 101.022(a)]

does not apply to the duty to warn of special defects such as excavations or obstructions

on highways, roads, or streets or to the duty to warn of the absence, condition, or

malfunction of traffic signs, signals, or warning devices as is required by [§] 101.060.” Id.

§ 101.022(b). Under § 101.060, except where a special defect exists, the waiver of

immunity does not apply to a claim arising from:

(1) the failure of a governmental unit initially to place a traffic or road sign,
signal, or warning device if the failure is a result of discretionary action of
the governmental unit; (2) the absence, condition, or malfunction of a traffic
or road sign, signal, or warning device unless the absence, condition, or
malfunction is not corrected by the responsible governmental unit within a
reasonable time after notice; or (3) the removal or destruction of a traffic or
road sign, signal, or warning device by a third person unless the
governmental unit fails to correct the removal or destruction within a
reasonable time after actual notice.

Id. § 101.060. Where a special defect exists, the governmental unit must provide a

warning. Id. § 101.060(c).

Governmental units are also protected from liability for claims based on

discretionary acts or failure to perform an act not required by law. Id. § 101.056. This

provision generally preserves immunity not only for the State’s public policy decisions,

but also for the State’s failure to act when no particular action is required by law. Stephen

8
F. Austin State Univ. v. Flynn, 228 S.W.3d 653, 657 (Tex. 2007). The Texas Supreme

Court has created a distinction between “negligent formulation of policy, for which

sovereign immunity is preserved, and the negligent implementation of policy, for which

immunity is waived.” Id. Whether an act is a matter of formation or implementation is a

question of law. Id. “Decisions about highway design and about what type of safety

features to install are discretionary policy decisions.” State v. Miguel, 2 S.W.3d 249, 251

(Tex. 1999) (per curiam); Tex. Dep’t of Transp. v. Ramirez, 74 S.W.3d 864, 867 (Tex.

2002) (per curiam) (holding that TxDOT’s decision to not place a median barrier was a

discretionary decision for which it retains immunity); see Brazoria County v. Van Gelder,

304 S.W.3d 447, 454 (Tex. App.—Houston [14th Dist.] 2009, pet. denied). Likewise,

TxDOT retains immunity for its discretion on setting speed limits. Van Gelder, 304 S.W.3d

at 453–54. Compliance with the Texas Manual on Uniform Traffic Control Devices

(TMUTCD), which sets out safety standards for the design and implementation for traffic

control devices, is not mandatory. Id. at 454 (citing State Dep’t of Highways & Pub.

Transp. v. King, 808 S.W.2d 465, 466 (Tex. 1991) (per curiam)).

C. Premise Defect

In a premises defect claim, the government only owes the claimant a duty equal to

that of a licensee. TEX. CIV. PRAC. & REM. CODE ANN. § 101.022(a). The Supreme Court

of Texas held that:

The duty owed to a licensee on private property requires that “a landowner
not injure a licensee by willful, wanton or grossly negligent conduct, and that
the owner use ordinary care either to warn a licensee of, or to make
reasonably safe, a dangerous condition of which the owner is aware and
the licensee is not.”

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Sampson, 500 S.W.3d at 385 (quoting State Dep’t of Highways & Pub. Transp. v. Payne,

838 S.W.2d 235, 237 (Tex. 1992)). Section 101.022(a) requires that the governmental

unit have actual knowledge of the dangerous condition, not merely the possibility that a

dangerous condition could develop. City of Dallas v. Thompson, 210 S.W.3d 601, 602–

03 (Tex. 2006) (per curiam); TEX. CIV. PRAC. & REM. CODE ANN. § 101.022(a). If, however,

the premise has a special defect on roadways, such as an excavation or obstruction, the

limitation on the State’s duty does not apply. TEX. CIV. PRAC. & REM. CODE ANN.

§ 101.022(b). If a special defect does exist, the governmental unit owes the person the

duty of care owed to an invitee. The Univ. of Tex. at Austin v. Hayes, 327 S.W.3d 113,

116 (Tex. 2010) (per curiam).

A condition constitutes a special defect “only if [it] pose[s] a threat to the ordinary

users of a particular roadway.” Denton County v. Beynon, 283 S.W.3d 329, 331 (Tex.

2009). “Whether a condition is a special defect is a question of law.” Hayes, 327 S.W.3d

at 116. The Supreme Court of Texas has promulgated some characteristics to consider

when determining whether a condition is a special defect:

(1) the size of the condition; (2) whether the condition unexpectedly and
physically impairs a vehicle’s ability to travel on the road, (3) whether the
condition presents some unusual quality apart from the ordinary course of
events, and (4) whether the condition presents an unexpected and unusual
danger to the ordinary users of the roadway.

Id. The special defect “jurisprudence turns on the objective expectations of an ‘ordinary

user’ who follows ‘the normal course of travel.’” Id. (quoting Beynon, 327 S.W.3d at 332).

In the absence of a special defect, the claimant must show that the governmental unit

“failed to either (1) use ordinary care to warn a licensee of a condition that presented an

10
unreasonable risk of harm of which the landowner is actually aware, and the licensee is

not, or (2) make the condition reasonably safe.” Id. at 117.

III. ANALYSIS

TxDOT argues that the trial court erred by denying its plea to the jurisdiction

because TxDOT retains sovereign immunity for discretionary acts, which include design

decisions. See TEX. CIV. PRAC. & REM. CODE ANN. § 101.056(2). As a sub-issue, TxDOT

asserts that immunity was not waived under § 101.060(c) because the condition did not

constitute a special defect for which TxDOT would have the duty to warn. Id.

§§ 101.022(b), 101.060(c).

In their third amended petition, appellees alleged TxDOT was negligent by:

(1) failing to create and implement a traffic control plan that was safe for the driving public;

(2) failing to warn the public of a deep left turn; (3) failing to reduce the speed of the area

to a safer speed; and (4) allowing the roadway to open up before it was safe to do so.

Appellees point to TxDOT’s original plan to include the low-profile concrete barriers—as

opposed to stripes and dots—as evidence that TxDOT negligently created and

implemented its amended traffic control plan. TxDOT does not argue that appellees’

pleadings failed to establish a waiver of sovereign immunity but instead that the

jurisdictional facts do not support a waiver of immunity. See Miranda, 133 S.W.3d at 225–

26.

A. Special Defect

Before we can analyze whether TxDOT maintains protection for discretionary acts,

we must first determine whether a special defect exists. See TEX. CIV. PRAC. & REM. CODE

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ANN. §§ 101.022(b), 101.060(c). If a special defect does exist, then TxDOT owed a duty

to warn drivers of the special defect. See id. §§ 101.022(b), 101.060(c); Hayes, 327

S.W.3d at 116; see also City of Houston v. Cogburn, No. 01-11-00318-CV, 2013 WL

1136553, at *8 (Tex. App.—Houston [1st Dist.] Mar. 19, 2013, no pet.) (mem. op.) (“The

existence of a special defect, however, is an exception to the rule that a governmental

entity does not waive immunity for a discretionary act.”).

In order to constitute a special defect, the condition complained of must pose a

threat to the ordinary users of a particular roadway. See Beynon, 283 S.W.3d at 331–32.

The condition for which appellees complain is the use of stripes and dots as opposed to

concrete barriers. In applying the characteristics outlined in Hayes, we note that (1) the

witnesses all agree that the roadway did not have enough space to use the concrete

barrier; (2) the stripes and dots do not physically impair a vehicle’s ability to travel on the

roadway; (3) the construction zone did present, to some degree, an unusual quality from

the normal course of events; and (4) a version of stripes and dots to delineate lanes is

normally and routinely used on roadways, including lanes between oncoming traffic. See

Hayes, 327 S.W.3d at 116. As the stripes and dots used less space than concrete barriers

would have, the size of the condition weighs against a finding of a special defect. See id.

Conversely, the unusual nature of the construction zone weighs in favor of a finding of a

special defect. See id. However, because the application of stripes and dots would not

interfere with the normal course of travel for an ordinary user, the use of stripes and dots

as opposed to concrete barriers does not constitute a special defect. See id. Therefore,

a special defect does not exist, and TxDOT’s failure to initially place a road sign, signal,

12
or warning device does not waive sovereign immunity. See TEX. CIV. PRAC. & REM. CODE

ANN. § 101.060(a), (c).

B. Discretionary Function

TxDOT argues that § 101.056 protects it from liability because the design and

implementation of traffic control measures is a discretionary function. See TEX. CIV. PRAC.

& REM. CODE ANN. § 101.056; Miguel, 2 S.W.3d at 251. As such, TxDOT maintains that it

retains immunity even for an ordinary, as opposed to special, premises defect.

The Texas Supreme Court has held that § 101.056 protects TxDOT’s discretion to

decide which particular safety devices to implement and courts should not second-guess

those discretionary decisions. Miguel, 2 S.W.3d at 251. In response, appellees contend

that TxDOT does not have the “discretion to violate the law[5] or ignore its own contract.[6]”

However, appellees have provided no authority that holds TxDOT does not have the

discretion to verbally modify a traffic control plan in such a way that would waive immunity.

Further, whether TxDOT approved the modified traffic control plan through a signed and

sealed document or verbally does not change the nature of the condition made the basis

of appellees’ complaint. In other words, if TxDOT had approved the modification through

a signed and sealed document, the condition would still have existed. Appellees have

5 Appellees’ brief does not indicate which law it alleges TxDOT violated. Although appellees cited
to 22 TEX. ADMIN. CODE ANN. § 137.33(a) at the trial level, their brief is devoid of any such citation. Section
137.33(a) states that “[t]he purpose of the engineer’s seal is to assure the user of the engineering product
that the work has been performed or directly supervised by the professional engineer named and to
delineate the scope of the engineer’s work.” 22 TEX. ADMIN. CODE ANN. § 137.33(a)

6 Parties are generally free to voluntarily engage in a course of conduct that is inconsistent with

the expressed terms of a contract. See, e.g., TEX. BUS. & COMM. CODE ANN. § 1.303(a) (defining “course of
performance”); id. § 1.303(f) (“[A] course of performance is relevant to show a waiver or modification of any
term inconsistent with the course of performance.”).
13
also failed to demonstrate how TxDOT has violated the law, other than making the broad

assertion that they have done so. See TEX. R. APP. P. 38.2(a)(1) (requiring appellee’s brief

to comply with the requirements of appellant’s brief in rule 38.1); id. R. 38.1(i) (requiring

briefs to “contain a clear and concise argument for the contentions made, with appropriate

citations to authorities and to the record”).

If TxDOT has the discretion to design a safety control plan, it must also have the

discretion to modify said plan. See Miguel, 2 S.W.3d at 251. In Miguel, TxDOT used

barrels to warn drivers of a section of missing railing on an exit ramp from a freeway. Id.

at 250. The court held that even though an engineer had not directed the maintenance

crew which warning device to use, TxDOT maintained immunity because it complied with

its policy found in the TMUTCD. Id. at 251. However, the Fourteenth Court of Appeals

has held that compliance with the TMUTCD is not mandatory and failure to do so does

not necessarily result in a waiver of immunity. Van Gelder, 304 S.W.3d at 455.

In the present case, the uncontroverted evidence shows that the traffic control plan

called for a low-profile concrete barrier between conflicted lanes of traffic. However, upon

reaching that phase of construction, Williams Brothers discovered that the roadway did

not have enough space for the low-profile concrete barriers. After sending a redlined plan

to TxDOT and other contractors, Williams Brothers received verbal confirmation to

proceed with the modified plan through Pierce. 7 Although the deposition testimony

indicates that Williams Brothers did not abide by the contract when modifying the traffic

7 Although Pierce did not recall giving permission, both TxDOT and appellees contend such fact is
true.

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control plan, appellees have presented no evidence that TxDOT’s implemented traffic

control plan—the use of stripes and dots—violated its own policies, whether through the

TMUTCD or otherwise. 8 See Miguel, 2 S.W.3d at 251; Flynn, 228 S.W.3d 657 (holding

negligent implementation of policy is not protected by sovereign immunity). We conclude

that TxDOT’s discretion to design a traffic control plan includes its discretion to modify a

plan. See TEX. CIV. PRAC. & REM. CODE ANN. § 101.056(2); Miguel, 2 S.W.3d at 251;

Ramirez, 74 S.W.3d at 867. Likewise, TxDOT retains immunity for its discretion on setting

the speed limit. See TEX. CIV. PRAC. & REM. CODE ANN. § 101.056(2); Van Gelder, 304

S.W.3d at 453–54. Accordingly, TxDOT’s sole issue is sustained.

IV. CONCLUSION

We reverse and render a judgment of dismissal for want of jurisdiction.

CLARISSA SILVA
Justice

Delivered and filed on the
27th day of May, 2021.

8 Appellees did not plead and do not argue that TxDOT negligently implemented its policies; rather,
Appellees argue that TxDOT did not have the discretion to act in the manner that they did. See Stephen F.
Austin State Univ. v. Flynn, 228 S.W.3d 653, 657 (Tex. 2007) (distinguishing between negligent policy and
negligent policy implementation); see also Tex. Dep’t of Transp. v. Hathorn, 03-11-00011-CV, 2012 WL
2989235, at *6 (Tex. App.—Austin July 19, 2012, no pet.). Because the pleadings and evidence
affirmatively show that appellees’ factual complaints concern discretionary decisions for which TxDOT
retains immunity, it is not possible for appellees to invoke jurisdiction. See Tex. Dep’t of Transp. v. Ramirez,
74 S.W.3d 864, 867–68 (Tex. 2002) (per curiam).
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