Texas Department of Transportation v. Kathleen Galloway-Powe, Individually and as Representatives of the Estates of Manley D. Galloway, and Elfriede Galloway

IN THE
TENTH COURT OF APPEALS

No. 10-19-00130-CV

TEXAS DEPARTMENT OF
TRANSPORTATION,
Appellant
v.

KATHLEEN GALLOWAY-POWE, INDIVIDUALLY
AND AS REPRESENTATIVE OF THE ESTATES OF
MANLEY D. GALLOWAY, DECEASED AND
ELFRIEDE GALLOWAY, DECEASED,
Appellee

From the 52nd District Court
Coryell County, Texas
Trial Court No. DC-17-46346

MEMORANDUM OPINION

Manley and Elfriede Galloway were killed in a car accident after another driver

failed to yield the right-of-way and turned left in front of the Galloways’ vehicle. The

Galloways’ daughter, Kathleen Galloway-Powe, sued the Texas Department of

Transportation for wrongful death and survivor actions. TxDOT filed a motion to

dismiss for lack of jurisdiction alleging its sovereign immunity had not been waived.

After a hearing, the trial court denied TxDOT’s motion. Because the trial court erred in
Tex. Dep’t of Trans. v. Galloway-Powe Page 1
denying TxDOT’s motion to dismiss for lack of jurisdiction, the trial court’s order is

reversed, TxDOT’s motion is granted, and judgment is rendered dismissing Powe’s

claims for want of jurisdiction.

SOVEREIGN IMMUNITY

A unit of state government is immune from suit and liability unless the state

consents. DART v. Whitley, 104 S.W.3d 540, 542 (Tex. 2003). In a suit against a

governmental unit, the plaintiff must affirmatively demonstrate the court's jurisdiction

by alleging a valid waiver of immunity. Id.

A governmental unit may be sued if the Legislature has waived its immunity with

clear and unambiguous language. Harris County v. Annab, 547 S.W.3d 609, 613 (Tex.

2018). As relevant to the claims raised here, under the Texas Tort Claims Act's limited

waiver of sovereign immunity—and absent any exception to the waiver—a

governmental unit can be liable for "personal injury and death so 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." See TEX. CIV. PRAC. &

REM. CODE § 101.021(2); Tex. Dep't of Criminal Justice v. Rangel, 595 S.W.3d 198, 205 (Tex.

2020); City of San Antonio v. Hartman, 201 S.W.3d 667, 672 (Tex. 2006) (noting that the Act

provides a few exceptions "in which its waiver provisions do not apply").

Plea to the Jurisdiction

Sovereign immunity implicates a trial court's subject matter jurisdiction and is

properly asserted in a plea to the jurisdiction. Tex. Dep't of Criminal Justice v. Rangel, 595

S.W.3d 198, 205 (Tex. 2020). Generally, we review the trial court's ruling on a plea to the

Tex. Dep’t of Trans. v. Galloway-Powe Page 2
jurisdiction de novo. Houston Belt & Terminal Ry. Co. v. City of Houston, 487 S.W.3d 154,

160 (Tex. 2016).

"A jurisdictional plea may challenge the pleadings, the existence of jurisdictional

facts, or both." Alamo Heights Indep. Sch. Dist. v. Clark, 544 S.W.3d 755, 770 (Tex. 2018).

When a plea to the jurisdiction challenges the pleadings, we determine if the pleader has

alleged facts that affirmatively demonstrate the court's jurisdiction by alleging a valid

waiver of immunity. See Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226

(Tex. 2004); Dallas Area Rapid Transit v. Whitley, 104 S.W.3d 540, 542 (Tex. 2003). This is a

question of law which is reviewed de novo. Miranda, 133 S.W.3d at 226. In determining

whether the plaintiff has met that burden, we liberally construe the pleadings, taking all

factual assertions as true and looking to the plaintiff's intent. City of Ingleside v. City of

Corpus Christi, 469 S.W.3d 589, 590 (Tex. 2015).

However, when a plea to the jurisdiction challenges the existence of jurisdictional

facts, we look beyond the pleadings and consider evidence submitted by the parties

"when necessary to resolve the jurisdictional issues raised." Dep't of Criminal Justice v.

Rangel, 595 S.W.3d 198, 205 (Tex. 2020) (quoting Miranda, 133 S.W.3d at 227). In this

instance, our standard of review generally mirrors that of a traditional summary

judgment in that a plaintiff must raise a genuine issue of material fact to overcome the

challenge to the trial court's jurisdiction. Rangel, 595 S.W.3d at 205. Whether undisputed

evidence of jurisdictional facts establishes a trial court's jurisdiction is a question of law.

Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004). To determine

whether a plaintiff has met that burden, "we take as true all evidence favorable to" the

plaintiff and "indulge every reasonable inference and resolve any doubts in the
Tex. Dep’t of Trans. v. Galloway-Powe Page 3
[plaintiff's] favor." Rangel, 595 S.W.3d at 205 (quoting Miranda, 133 S.W.3d at 228).

PLAINTIFF’S PETITION

Powe raised two causes of action in her Original Petition: a “Survival Action” and

a “Wrongful Death” action. She alleged her causes of action were brought under the

Texas Tort Claims Act and that the trial court had jurisdiction over them because the

TTCA waives sovereign immunity for claims, such as Powe’s, involving personal injury

or death caused by (1) the condition of a traffic control device and the claim is not exempt

under Texas Civil Practice and Remedies Code § 101.060; 1 and (2) a premises defect that

poses an unreasonable risk of harm about which TxDOT had actual knowledge and the

Galloways did not, and for which TxDOT would be liable under Texas law if it were a

private person.

In each of her causes of action, Powe alleged personal injury and death as a result

of a defective condition or use of tangible personal property regarding the traffic signal

devise installed and used by TxDOT. Powe alleged that TxDOT installed and used traffic

signal control devices not in conformity with applicable governmental regulations,

specifically “[t]he controlling Federal Highway Administration (FWHA) regulations

applicable and required for signal control devises…,” had actual notice of the dangerous

condition created by the use of the traffic signal control devices, and failed to remedy that

1
Section 101.060, as it applies to Powe, provides:

(a) This chapter does not apply to a claim arising from:

***
(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….

Tex. Dep’t of Trans. v. Galloway-Powe Page 4
condition. Additionally, Powe contended the Galloways’ injuries were proximately

caused by TxDOT’s breach of its duty, and no exception to the waiver of immunity barred

the claims.

Powe also alleged in each of her claims that the intersection where the accident

occurred was a defective condition that posed an unreasonable risk of harm, TxDOT had

actual knowledge of the dangerously defective condition because it knew the

intersection, as constructed, would and did cause an obstruction of view of approaching

traffic, and the condition constituted a special defect. In the alternative, Powe asserted

that the intersection was a premises defect which posed an unreasonable risk of harm

about which TxDOT knew or should have known. Under either, Powe contended TxDOT

had a duty to make the premises safe by either warning of the dangerous condition or

eliminating the risk of harm, TxDOT did neither, the Galloways’ injuries were

proximately caused by TxDOT’s breach of its duty, and no exception to the waiver of

immunity barred the claims.

ISSUES

In two issues, TxDOT contends:

1) it retains sovereign immunity for discretionary actions, and

2) Powe’s claims are barred by the Texas Tort Claims Act because they do not fit

within the narrow waiver of sovereign immunity for premises defect claims.

Issue One—Discretionary Function Exception

TxDOT first asserts that it retains sovereign immunity for its design decisions

regarding both the signal to be used and the construction of the intersection because those

decisions are discretionary pursuant to an exception found in section 101.056 of the Texas
Tex. Dep’t of Trans. v. Galloway-Powe Page 5
Tort Claims Act; and thus, TxDOT is immune from suit. See TEX. CIV. PRAC. & REM CODE

§ 101.056.

Often referred to as “the discretionary function exception,” a governmental unit

retains its immunity pursuant to section 101.056 for claims based on (1) the failure to

perform an act that the unit is not required by law to perform; or (2) the unit’s decision

not to perform an act or on its failure to make a decision on the performance or

nonperformance of an act if the law leaves the performance or nonperformance of the act

to the governmental unit’s discretion. Id.; Tarrant Reg'l Water Dist. v. Johnson, 572 S.W.3d

658, 665 (Tex. 2019). In other words, section 101.056 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. Tarrant Reg'l Water Dist., 572 S.W.3d at 662.

Consequently, immunity is not waived in suits based on discretionary acts. See Tex. Dep't

of Transp. v. Ramirez, 74 S.W.3d 864, 866-67 (Tex. 2002) (per curiam); State v. Burris, 877

S.W.2d 298, 299 (Tex. 1994).

An act is discretionary if it requires exercising judgment and the law does not

mandate performing the act with such precision that nothing is left to discretion or

judgment. State v. Rodriguez, 985 S.W.2d 83, 85 (Tex. 1999); City of Lancaster v. Chambers,

883 S.W.2d 650, 654 (Tex. 1994). Whether a governmental activity is discretionary is a

question of law. State v. San Miguel, 2 S.W.3d 249, 251 (Tex. 1999).

Intersection Design

We begin with Powe’s allegation in each of her causes of action that the

intersection, itself, was a defective condition or a premises defect. Specifically, she

contended that, because of the contour of highway, the intersection was constructed in
Tex. Dep’t of Trans. v. Galloway-Powe Page 6
such a way that vehicles approaching the intersection from the north in a southbound

direction essentially disappeared from the view of the northbound traffic seeking to make

a left-hand turn which posed an unreasonable risk of harm. TxDOT asserted in its motion

to dismiss that these claims for each cause of action related solely to TxDOT’s design of

the intersection of the accident, and thus, Powe’s pleadings negated a waiver of

immunity. We agree that TxDOT retains immunity as to Powe’s claims about the design

of the intersection.

Decisions about highway or roadway design are discretionary, and the

governmental entity responsible may not be sued for such decisions. State v. San Miguel,

2 S.W.3d 249, 251 (Tex. 1999); State v. Rodriguez, 985 S.W.2d 83, 85 (Tex. 1999) (finding that

the design of highway and lack of barrier in median between north and southbound lanes

reflected discretionary decisions for which TxDOT retained immunity); Harris County v.

Estate of Ciccia, 125 S.W.3d 749, 753 (Tex. App.—Houston [1st Dist.] 2003, pet. denied)

("The design of a roadway is a discretionary function involving many policy decisions;

thus, the responsible governmental unit's sovereign immunity is not waived for flawed

roadway design."). See also State v. Burris, 877 S.W.2d 298, 299 (Tex. 1994) (premises and

special defect theories cannot bypass the State's immunity for discretionary roadway

design under section 101.056 of the Tort Claims Act.).

Powe denies in her brief on appeal that her underlying complaint is about the

design of the intersection. Rather, she contends she complained that the intersection, as

designed, required correction or warning. This is a distinction without a difference.

Powe pled that the intersection was constructed in such a way that vehicles approaching

Tex. Dep’t of Trans. v. Galloway-Powe Page 7
the intersection from the north in a southbound direction essentially disappeared from

the view of the northbound traffic seeking to make a left-hand turn which posed an

unreasonable risk of harm. Based on the pleadings, the trial court could not reach the

issue of correction or warning without determining the existing intersection design

created a defective condition or a premises defect.

Further, there were no pleadings or evidence that any law required TxDOT to

design the intersection in a certain way. As we stated previously, there is, however,

caselaw that the design of a roadway or highway is discretionary. Applying the

controlling caselaw, the design of the intersection at issue here is a discretionary act.

Thus, Powe’s pleadings did not affirmatively establish a waiver of TxDOT’s immunity

because, pursuant to the discretionary function exception of section 101.056, the Tort

Claims Act’s waiver of immunity does not apply to Powe’s claims.

Accordingly, the trial court erred in denying TxDOT’s motion to dismiss Powe’s

claims under each cause of action regarding the design of the intersection.

Type of Signal

Powe also alleged in each of her causes of action that TxDOT installed and used

traffic signal control devices not in conformity with applicable governmental regulations,

specifically, federal highway regulations. In its motion to dismiss, TxDOT again relied

on section 101.056 of the Tort Claims Act to assert that the use of a particular traffic signal

was within TxDOT’s discretion, and thus, not subject to the Tort Claims Act’s waiver of

immunity. Powe responded that TxDOT had no discretion to use the wrong type of

signal because the National Manual on Uniform Traffic Control Devices preempts the

Tex. Dep’t of Trans. v. Galloway-Powe Page 8
Texas Manual on Uniform Traffic Control Devices and, if any device is used, requires the

use of a particular traffic control device. Thus, her argument continued, because a

particular traffic control device was required by “federal law” and TxDOT did not use

the required traffic control device, immunity was waived.

Manual on Uniform Traffic Control Devices

The National Manual is “recognized as the national standard for all traffic control

devices installed on any street, highway, bikeway, or private road open to public travel

in accordance with 23 U.S.C. 109(d) and 402(a).” NATIONAL MANUAL ON UNIFORM

TRAFFIC CONTROL DEVICES, 2009, Introduction, p. 1-1. The location, form and character

of…traffic signals installed or placed by any public authority or other agency, shall be

subject to the approval of the State transportation department with the concurrence of

the Secretary [of Transportation]…. 23 USCS §§ 101; 109(d).

States and other Federal agencies may have their own manuals, but they must be

in substantial conformance with the National Manual. 23 C.F.R. § 655.603(b)(1). Thus,

Federal regulations explicitly allow for and anticipate the implementation of both a

national manual and state-specific manuals. See id. “Substantial conformance” means

that the state’s manual will conform, at a minimum, to the standard statements included

in the National Manual. Id. FHWA Division Administrators will approve state manuals

”that are in substantial conformance” with the National Manual. Id. By allowing each

state to submit its own version of the MUTCD for review and approval by the FHWA,

federal regulations allow both a national manual and a state manual to coexist.

Relevant to this case, the executive director of TxDOT certified the 2011 Texas

Manual. Further, the FHWA determined that the 2011 Texas Manual is in substantial
Tex. Dep’t of Trans. v. Galloway-Powe Page 9
conformance with the National Manual.

Is it Law?

It is well-established that compliance with the Texas Manual is not mandatory.

Brazoria Cty. v. Van Gelder, 304 S.W.3d 447, 454 (Tex. App.—Houston [14th Dist.] 2009,

pet. denied); see State Dep't of Highways & Pub. Transp. v. King, 808 S.W.2d 465, 466 (Tex.

1991) (“It is the intent that the provisions of this Manual be standards for traffic control

devices installation, but not a legal requirement for installation.”). See also TEXAS MANUAL

ON UNIFORM TRAFFIC CONTROL DEVICES, 2006, Revision 1, Introduction, p. ix (“The

provisions of this Manual do not create mandatory duties, as opposed to discretionary

duties, in the legal sense under the Texas Tort Claims Act and elsewhere…This Manual

does not establish a mandatory legal duty to install particular traffic control devices.”);

TEXAS MANUAL ON UNIFORM TRAFFIC CONTROL DEVICES, 2011, pp. I-1-I-2 (same).

Nevertheless, Powe asserts compliance with the National Manual is mandatory; thus,

requiring compliance.

Powe points to a few provisions in the National Manual and an affidavit from a

consulting traffic engineer to support her argument that TxDOT was required “by law”

to follow federal regulations. While the provisions of the National Manual introduced

into evidence at the hearing on TxDOT’s plea to the jurisdiction use the word “shall,”2

the Standard3 in Section 1A.09 of the National Manual states, “This Manual describes the

2
See e.g., NATIONAL MANUAL ON UNIFORM TRAFFIC CONTROL DEVICES, 2009, § 4D.20 (“If a separate left-turn
signal face is being operated in a protected/permissive left-turn mode, a CIRCULAR GREEN signal
indication shall not be used in that face.”) (emphasis added).

3
Each section in both the National Manual and the Texas manual are divided into Standards, Guidance,
Options, and Support.
Tex. Dep’t of Trans. v. Galloway-Powe Page 10
application of traffic control devices but shall not be a legal requirement for their

installation.” Powe contends this only means TxDOT was not required to install any

traffic control device at the intersection at all. But, her argument continues, when it

installed a particular device, TxDOT was required to comply with the National Manual.

We disagree with Powe.

In the 2003 National Manual, the Guidance section under 1A.09 stated, “the

decision to use a particular device at a particular location should be made on the basis of

either an engineering study or the application of engineering judgment” (emphasis

added) and “this Manual should not be considered a substitute for engineering

judgment.” That language was removed from the 2009 National Manual. But in an

official interpretation of the removal, the FHWA explained that the removal was not

intended to change the previously existing meaning of the Standard. Thus, the FHWA

said, States could maintain or adopt language in their state manuals in conformance with

the language of 1A.09 from the 2003 National Manual without jeopardizing their

“substantial conformance” with the 2009 Manual. Texas did just that, and the executive

director of TxDOT certified the 2011 Texas Manual and the FHWA approved it as

substantially conforming with the National Manual. Thus, in Texas, and with the

approval of the FHWA, the decision to place a particular device at a particular location is

not controlled exclusively by the National Manual. Consequently, the National Manual

cannot be considered “law” as that term is used in section 101.056 of the Tort Claims Act.

Regarding Powe’s consulting expert’s affidavit, the expert could not say during

his deposition that TxDOT was “legally obligated” to install traffic control devises

recommended in the National Manual. Yet, two months later, he stated in his affidavit
Tex. Dep’t of Trans. v. Galloway-Powe Page 11
attached to Powe’s response to TxDOT’s motion to dismiss that traffic control devises

were required to comply with the 2009 National Manual standard and TxDOT did not

have the discretion to ignore or fail to follow the 2009 National Manual. No support for

this statement is included in the affidavit. Thus, the statement is conclusory at best.

Powe also points to case authority for the proposition that under certain

circumstances, federal regulations have the “force and effect” of law, Congress can

preempt state law, and Congress can condition federal funding on state conformity to

federal regulations; thus, her argument continues, the National Manual controls. None

of the cases cited, however, hold that the National Manual is mandatory as to traffic

control signals, is “law” as contemplated by section 101.056 of the Texas Tort Claims Act,

or preempts Texas law, specifically section 101.056. 4

Powe did not plead in her petition, analyze, or present evidence on the steps

necessary to show a federal preemption of section 101.056. See R.R. Comm'n v. Lone Star

Gas Co., 844 S.W.2d 679, 690-691 (Tex. 1992) (setting out how Congress’s preemption of

state law may be determined). Nor did Powe plead, analyze, or present evidence that

accepting federal funding waives TxDOT’s immunity for tort claims. See Hurst v. Tex.

Dep't of Assistive & Rehabilitative Servs., 482 F.3d 809, 811 (5th Cir. 2007) (state's receipt of

4
See Chrysler Corp. v. Brown, 441 U.S. 281, 99 S. Ct. 1705, 60 L. Ed. 2d 208 (1979) (discussing the applicability
of the Trade Secrets Act, codified by Congress at 18 USCS § 1905); Frank v. Delta Airlines, 314 F.3d 195 (5th
Cir. 2002) (discussing preemption of state-law tort action by codified FFA regulations which specified
preemption and the Omnibus Transportation Employee Testing Act of 1991); Stevenson v. Fort Worth & W.
R.R. Co., No. 10-16-00244-CV, 2017 Tex. App. LEXIS 9402 (Tex. App.—Waco Oct. 4, 2017, pet. denied) (mem.
op.) (discussing the preemption of a state-law tort action by specific provisions of the Federal Railroad
Safety Act). See also South Dakota v. Dole, 483 U.S. 203, 107 S. Ct. 2793 (1987) (loss of federal funding minimal
when State set drinking age lower than 21, not a compulsion to comply and not a violation of the Spending
Clause).

Tex. Dep’t of Trans. v. Galloway-Powe Page 12
federal funds does not automatically constitute a waiver of immunity); Wion v. Thayler,

No. 10-09-00369-CV, 2010 Tex. App. LEXIS 9153, at *6 (Tex. App.—Waco Nov. 17, 2010,

no pet.) (mem. op.) (same). The arguable “requirement” to comply with the manual is so

that the State can, or will, qualify for federal funds for highway projects or this one in

particular. We do not believe that acceptance of federal funds, if any, for general highway

funding, for the specific project generally, or specifically, for the device in question,

would operate to waive the State’s sovereign immunity; rather, it may expose the State

to loss or return of federal funding. See e.g. 23 U.S.C.S. § 158(a), (b) (the withholding of

funds and its effect for non-compliance with the national minimum drinking age); 23

U.S.C.S. § 131(b) (Federal-aid highway funds reduced by 10% to any State which has not

made provision for effective control of the erection and maintenance of outdoor

advertising signs, displays, and devices along the Interstate Highway System). Breach

of the agreement, if any, with the federal government for funding of the specific project

or device, without some specific authority, which we have not found, does not turn every

citizen using the project or device into a private United States attorney general to enforce

the agreement, if any, between the federal and state governments by waiving sovereign

immunity for torts that may result from the State’s failure to strictly comply with the

manual.

Relevant case authority is sparse, and we have found no case holding that the

National Manual as to traffic control devices is mandatory in its compliance or that it is

the type of “law” required by section 101.056 to waive immunity. However, we have

found a few cases tending to show the opposite. In the only Texas state court decision in

this area of the law, the Fort Worth Court of Appeals analyzed certain provisions of the
Tex. Dep’t of Trans. v. Galloway-Powe Page 13
National Manual and determined those provisions did not dispense with TxDOT’s

discretionary duty to use certain warning signs and traffic control devices and any failure

to comply with the National Manual did not waive immunity under section 101.060 (a)(1)

of the Texas Civil Practice and Remedies Code. 5 Tex. DOT v. Andrews, 155 S.W.3d 351,

359-360 (Tex. App.—Fort Worth 2004, pet. ref’d). Further in an unpublished opinion, a

United States District Court determined that the National Manual, itself, is not a federal

law, but merely advisory. See Peruta v. City of Hartford, No. 3:09-cv-1946 (VLB), 2012 U.S.

Dist. LEXIS 120228, at *42, *44 (D. Conn. 2012). See also Daniel E. Davis & Davis Heavy Haul

Transp., Inc. v. Union Pac. R.R. Co., Civil Action No. B: 12-212, 2015 U.S. Dist. LEXIS

189428, at *5 n.3 (S.D. Tex. 2015) (holding summary judgment appropriate because the

Federal Railroad Safety Act completely preempts state law regarding adequate warning

devices at railroad crossings but noting sign at the crossing was sanctioned but not

mandated by the National Manual, citing Peruta).

Regardless of case authority or lack thereof, based on the record before us, neither

Powe’s pleadings, nor the evidence presented, established, or created a genuine issue of

material fact, that TxDOT was required by law to install a certain type of traffic signal and

its failure to do so waived TxDOT’s immunity. See TEX. CIV. PRAC. & REM. CODE § 101.056.

Accordingly, the trial court erred in denying TxDOT’s motion to dismiss Powe’s

claims under each cause of action regarding the traffic signal used by TxDOT.

TxDOT’s first issue is sustained.

5
We recognize that the provisions analyzed and the statute authorizing waiver of immunity are not the
same as in this case. However, we still find Andrews to be instructive in the case before us.
Tex. Dep’t of Trans. v. Galloway-Powe Page 14
CONCLUSION

Because we have sustained TxDOT’s first issue and determined the trial court

erred in denying TxDOT’s motion to dismiss each of Powe’s causes of action, we need

not address TxDOT’s remaining issue. Therefore, we reverse the trial court’s Order on

Defendant Texas Department of Transportation's Motion To Dismiss For Lack Of

Jurisdiction which denied TxDOT’s motion, grant the motion, and render judgment

dismissing Powe’s claims against TxDOT for want of jurisdiction.

TOM GRAY
Chief Justice

Before Chief Justice Gray,
Justice Johnson, and
Justice Davis 6
(Justice Johnson dissenting)
Reversed and rendered
Opinion delivered and filed August 4, 2021
[CVO6]

6
The Honorable Rex Davis, Senior Justice (Retired) of the Tenth Court of Appeals, sitting by assignment of
the Chief Justice of the Texas Supreme Court. See TEX. GOV'T CODE §§ 74.003, 75.002, 75.003.
Tex. Dep’t of Trans. v. Galloway-Powe Page 15