concurring on Rehearing.
I concur with the result reached in the plurality opinion on rehearing, but for the reasons set forth below. The issue in this case is what facts must be proved to establish pre-emption for summary judgment purposes. In Easterwood, the United States Supreme Court stated:
Examination of these regulations [23 CFR §§ 646.214(b)(3) and (4)1] demonstrates that, when they are applicable, state tort law is pre-empted. However, petitioner has failed to establish that the regulations apply to this case, and hence we find re*208spondent’s grade crossing claim is not preempted.
[U]nder §§ 646.214(b)(3) and (4), a project for the improvement of a grade crossing must either include an automatic gate or receive FHWA [Federal Highway Administration] approval if federal funds “participate in the installation of the [warning] devices.” Thus, ... §§ 646.214(b)(3) and (4) displace state and private decisionmak-ing authority by establishing a federal-law requirement that certain protective devices be installed or federal approval obtained. Indeed, §§ 646.214(b)(3) and (4) effectively set the terms under which railroads are to participate in the improvements of crossings. The former section envisions railroad involvement in the selection of warning devices through their participation in diagnostic teams which may recommend the use or nonuse of crossing gates. Likewise, § 646.214(b)(4) which covers federally funded installations at crossings that do not feature multiple tracks, heavy traffic, or the like, explicitly notes that railroad participation in the initial determination of “the type of warning device-to be installed” at particular crossings is subject to the Secretary’s approval. In either case, the Secretary has determined that the railroads shall not be made to pay any portion of installation costs. In short, for projects in which federal funds participate in the installation of warning devices, the Secretary has determined the devices to be installed and the means by which railroads are to participate in their selection. The Secretary’s regulations therefore cover the subject matter of state law which, like the tort law on which respondent relies, seeks to impose an independent duty on a railroad to identify and/or repair dangerous crossings.
CSX Transp., Inc. v. Easterwood, 507 U.S. at 668-72, 113 S.Ct. at 1740-41 (1993) (footnotes and citations omitted).2
In Hester, the Fifth Circuit found that the Easterwood pre-emption requirements were met where federal funds had been approved and expended in upgrading and installing reflectorized crossbucks at a crossing. Hester v. CSX Transp., Inc., 61 F.3d 382, 386-87 (5th Cir.1995), cert. denied, 516 U.S. 1093, 116 S.Ct. 815, 133 L.Ed.2d 760 (1996). The opinion held that any challenge to the lack of evidence showing an actual determination by the Secretary of Transportation that those passive warning devices were adequate was precluded because, by law, federal funds could only be spent on projects that satisfied the applicable regulations:
The regulations direct the Secretary to authorize the expenditure of federal funds only on projects that satisfy, inter alia, the requirements of federal law.... The fact that federal funds participated in the installation of the warning devices [thus] legally presupposes that the Secretary approved and authorized that expenditure, which in turn legally presupposes that the Secretary determined that the safety devices installed were adequate to their task. There is no evidence that this did not in fact happen. Nor is there any evidence demonstrating that passive warning devices alone were deemed inadequate.. .to promote safety at [the crossing].
Hester, 61 F.3d at 387 (footnotes and citations omitted); see also 23 U.S.C. § 109(e); 23 C.F.R. 630.112(c), 630.114(b), (g). Importantly, however, Hester acknowledged that “[o]f course, passive warning devices are not adequate where section 646.214(b)(3) applies,” and that “its seems clear on the facts before us that the applicable provision is section 646.214(b)(4)” because the crossing in question “was a rural crossing and that therefore subsections (A) through (E) of section 646.214(b)(3)(i) were not applicable.” Hester, 61 F.3d at 386 n. 6.3
*209In this case, as evidence of the expenditure of federal funds for the installation of warning devices at the 16th Street Crossing, Santa Fe offered, among other things, the affidavit of John Dodson, a railroad crossing consultant and former engineer with the Texas Department of Highways & Public Transportation, and the affidavit of Darin Kosmak, the Railroad Liason Manager, Traffic Operations Division for the Texas Department of Transportation. The Dodson affidavit stated, in part:
For many years, the State of Texas has received and continues to receive federal highway funds under the Federal Highway Safety Act....
In 1977, the Federal Highway Department implemented a program to improve all unsignalized public grade crossings in Texas. Between 1977 and 1981, the State of Texas received Federal Highway Funding in order to implement this program.
In 1991, ... federal funds ... were used to finance the installation of reflective tape on all crossbuck signs in Texas. ... Additionally, ... federal funds ... were used to update information on all off-system crossings at city street and county roads in Texas.
(emphasis added). Similarly, the Kosmak affidavit stated, in part:
In 1977 the Texas Department of Transportation (formerly known as the State Department of Highways and Public Transportation) implemented a program to improve all unsignalized public grade crossings in Texas. Between 1977 and 1981 the State of Texas received Federal Highway Funding in order to implement this program.
Pursuant to Section 203 of the Federal-Aid Highway Act of 1976, all erossbuck protected crossings on The Atchison, Topeka and Santa Fe Railway Company’s road crossings received the benefit of Federal Funds between approximately 1977 and 1981. These funds were expended to either install or upgrade crossing protection at all crossbuck-protected crossings ....
Under this program, the Secretary of Transportation determined the type of warning devices to be installed at ... [the] 16th Street [crossing] ....[ 4 ]
(emphasis added). In addition, one of the exhibits attached to the Kosmak affidavit was a 1989 letter from the United States Department of Transportation to the former State Department of Highways and Public Transportation (the “1989 DOT letter”) which stated, in part:
The Federal Highway Administration (FHWA) has completed a research activity directed at enhancing the safety of rural railroad grade crossings. This research involved the use of existing low-cost retro-reflective devices to focus the driver’s attention at a nonsignalized crossing when a train is present. Each year there are approximately 800 accidents resulting in about 60 fatalities and 400 injuries where a motorist runs into the side of a train at night.[ 5 ] Many of these accidents occur at low-volume crossings that only have advance warning signs, erossbucks and pavement markings. Because the use of active railroad grade crossing devices such as flashing lights and gates are not warranted at these crossings, improvements are generally not made. The devices detailed in this letter provide the opportunity to enhance safety at these railroad crossings....
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These devices are not intended to be used in lieu of upgrading when it is warranted, *210 but rather at crossings with passive warning systems where low-volume use makes other types of safety improvements impractical. Federal-aid, funds may be used to fund these low-cost improvements.
(emphasis added).
.Although the Trevinos offered summary judgment evidence that the 16th Street crossing had no automatic gates or flashing lights, there was no summary judgment evidence that a “diagnostic team” or other federal authority had ever evaluated whether any subsection (b)(3)(i) conditions were present there. However, the Highway Safety Act of 1973
mates federal funds available to the States to improve grade crossings, in return for which the States must “conduct and systematically maintain a survey of all highways to identify those railroad crossings which may require separate, relocation, or protective devices, and establish and implement a schedule of projects for this purpose.” 23 U.S.C. § 130(d).
Easterwood, 507 U.S. at 662-64, 113 S.Ct. at 1737. In addition, under federal regulations,
Each State receiving federal aid is required to establish a “highway safety improvement program” that establishes priorities for addressing all manner of highway hazards and guides the implementation and evaluation of remedial measures. 23 CFR pt. 924 (1992). In setting priorities, the States are directed to consider and rank the dangers posed by grade crossings. § 924.9(a)(4). Having developed a program, each State must evaluate its effectiveness and costs, § 924.13, and file yearly reports with the FHWA. § 924.15.
Easterwood, 507 U.S. at 664-68,113 S.Ct. at 1738 (footnote omitted).
Easterwood says, in effect, that in order for an expenditure of federal funds on warning devices at a railroad crossing to effect pre-emption, the expenditure “must either include an automatic gate or receive FHWA approval.” Easterwood does not specify whether this “approval” refers to (1) approval of merely the type of warning device generally, ie., without regard to the characteristics of the crossing at which it will be used; (2) approval of merely the non-use of an automatic gate at the crossing without specific approval of the warning device to be used; or (3) specific approval of the warning device with regard to the characteristics of the particular crossing at which it will be used.
Importantly, however, a central objective of the regulations is that automatic gates be installed at crossings where conditions listed in subsection (b)(3)(i) exist (“(b)(3)(i) crossings”). A corresponding objective of the regulations is that federal funds not be spent on warning devices other than an automatic gate at a(b)(3)(i) crossing which lacks such a gate unless federal approval is given for doing so. Therefore, to the extent a(b)(3)(i) crossing has no automatic gate, has received no federal approval for lacking a gate, and federal funds are nevertheless spent on other types of warning devices at the crossing, the objective of the regulation is not achieved, federal approval cannot properly be presumed, and, as alluded to in Hester, pre-emption is not justified.
On the other hand, Santa Fe’s summary judgment evidence contained data from the Texas Department of Highways and Public Transportation indicating that Texas alone had over 15,000 railroad crossings of public roads in 1976. Moreover, the affidavits and letter quoted above reflect that expenditures of federal funds to upgrade crossings, such as with reflectorized material, have sometimes been “approved” and made on a large scale without necessarily being “approved” with regard to the individual conditions at each crossing. Given the number of crossings and the ongoing need to maintain and upgrade warning devices at each, it may well be unworkable from a practical standpoint to obtain individual federal approval for each crossing before each expenditure on warning devices is made. In addition, there is no evidence in this case whether, in carrying out the federal programs, the State of Texas was in compliance with its obligations to survey, prioritize and schedule projects to address dangers posed at crossings under the provisions outlined in Easterwood.
We are thus left with a situation in which (b)(3)(i) as well as non-(b)(3)(i) crossings *211could have received federally funded warning devices without specific federal approval having been given for any of them. Under these circumstances, if such specific approval must be shown to effect pre-emption, few non-(b)(3)(i) crossings might qualify, whereas if specific approval is not required, some (b)(3)(i) crossings which lack gates might qualify. In order to balance these competing considerations, I would hold that where a proponent can establish by summary judgment evidence or at trial that the crossing in question is not a (b)(3)(i) crossing, the general approval given for a federal expenditure to install warning devices there should be deemed to satisfy Easterwood and support pre-emption.
In this case, Santa Fe’s summary judgment evidence showed that federal funds were spent on installing or upgrading reflec-torized crossbucks at the 16th Street Crossing, but did not establish that the 16th Street crossing was not a (b)(3)(i) crossing. Contrary to Hester, for summary judgment purposes, we may not infer or presume any such fact in favor of the movant.6 Therefore, I concur with the plurality opinion on rehearing that the summary judgment should be reversed and the case remanded for further proceedings.
. Sections 646.214(b)(3) and (4) provide:
(3)(i) "Adequate warning devices” ... on any project where Federal-aid funds participate in the installation of the devices are to include automatic gates with flashing light signals when one or more of the following conditions exist:
(A) Multiple main line railroad tracks.
(B) Multiple tracks at or in the vicinity of the crossing which may be occupied by a train or locomotive so as to obscure the movement of another train approaching the crossing.
(C) High speed train operation combined with limited sight distance at either single or multiple track crossings.
(D) A combination of high speeds and moderately high volumes of highway and railroad traffic.
(E) Either a high volume of vehicular traffic, high number of train movements, substantial numbers of school buses or trucks carrying hazardous materials, unusually restricted sight distance, continuing accident occurrences, or any combination of these conditions.
(F) A diagnostic team recommends them.
(ii) In individual cases where a diagnostic team justifies that gates are not appropriate, FHWA may find that the above requirements are not applicable.
(4) For crossings where the requirements § 646.214(b)(3) are not applicable, the type of warning device to be installed, whether the determination is made by a State regulatory agency, State highway agency, and/or the railroad, is subject to the approval of the FHWA.
23 CFR §§ 646.214(b)(3) and (4) (1992).
. However, federal funds were held not to have participated in the installation of warning devices at the crossing in question in Easterwood because the project to install a crossing gate there was abandoned after motion-detection circuitry was installed, and because the circuitry installed did not meet the definition of a warning device. CSX Transp., Inc. v. Easterwood, 507 U.S. 658, 670-72, 113 S.Ct. 1732, 1741, 123 L.Ed.2d 387 (1993).
. Although section 646.214(b)(3) conditions may be less likely to exist at a rural crossing, it is not clear how the non-existence of those conditions could be presumed in favor of a movant for *209summary judgment merely because a crossing is rural.
. This hearsay statement is not substantiated with documentation or other basis for the affi-ant’s personal knowledge. Nor does the affidavit indicate whether the Secretary’s approval was given with regard to that particular crossing specifically, or simply as to all crossbuck protected crossings, as the previous paragraph would suggest.
. The accident in this case occurred in mid-afternoon and involved an automobile being struck by a train as the auto crossed the track, rather than a motorist running into the side of a train. The Trevinos allege that the visibility of the oncoming train was obscured by grain silos and buildings on or near the right of way.
. See supra note 3. A movant for summary judgment has the burden to show that there are no genuine issues of material fact and that it is entitled to judgment as a matter of law. Tex.R. Civ. P. 166a(c). To be entitled to summary judgment, a defendant must either (1) conclusively negate at least one essential element of each of the plaintiff’s causes of action, or (2) conclusively establish each element of an affirmative defense to each claim. Johnson County Sheriff's Posse v. Endsley, 926 S.W.2d 284, 285 (Tex.1996). In reviewing a summary judgment, the nonmovant's evidence is accepted as true, and all doubts regarding the evidence are resolved and all inferences indulged in the nonmovant’s favor. Id.