Thank you for sharing!

Your article was successfully shared with the contacts you provided.
Click here for the full text of this decision The implementation of a policy decision, unlike the actual decision making, is nondiscretionary and waives immunity. FACTS:Homer and Martha Scott, Rick, Steve, and Jamie Garrison, Michelle Vaughn, Helen and Jessie Bush, and Misty Mosley, the appellees, brought suit against the Texas Department of Transportation regarding signalization of an intersection where their four separate motor vehicle accidents occurred. The trial court denied TXDOT’s plea to the jurisdiction. TXDOT brings this appeal, claiming the sovereign immunity doctrine bars appellees’ claims under the Texas Tort Claims Act. The accidents occurred at the crossover intersection of U.S. 59 and Main Street in Patton Village, Montgomery County, after TXDOT sent a letter dated Nov. 27, 1996, to State Representative Bob Rabuck. In the letter, TXDOT’s executive director informed Rabuck that, according to information received from its Houston District, TXDOT had obtained “Federal Safety funds of $120,000, which [would] be used to replace the warning flasher at Main Street in Patton Village with a `stop and go’ signal and also [would] be used to place advance warning signs and area safety lighting.” However, TXDOT’s engineers determined that the installation of a traffic signal would increase the number of accidents because of the high approach speeds. The engineers suggested upgrading the existing flashing beacon and installing special intersection signs, and also assigning a high priority to the construction of overpasses at this and two other area intersections. TXDOT did not install the stop and go signal, but instead upgraded the flashing beacon and installed special intersection signs. HOLDING:Reversed and rendered. The Texas Tort Claims Act “does not waive immunity for decisions about highway design or what types of safety features to install, because these decisions involve the exercise of discretion.” State ex rel. State Dept. of Highways and Public Transp. v. Gonzalez, 82 S.W.3d 322 (Tex. 2002). Such decisions are the very ones for which immunity is retained under �101.060(a) of the act. Tex. Dept. of Transp. v. Bederka, 36 S.W.3d 266 (Tex. App. Beaumont 2001, no pet.). But, once a governmental unit decides to install a particular traffic signal, that decision must be implemented within a reasonable time. The implementation of a policy decision, unlike the actual decision making, is nondiscretionary and waives immunity. The appellees contend the letter clearly indicates TXDOT had determined to utilize a stop and go signal, but failed to implement its policy. They further contend Zambory v. City of Dallas, 838 S.W.2d 580 (Tex. App. Dallas 1992, writ denied), supports their waiver of immunity argument. In Zambory, the appellate court recognized that a city could be liable for “negligent implementation of a discretionary act.” However, the court, in reversing summary judgment, did not determine the city was liable but instead concluded a fact issue was present on whether the city council, its governing body, had made a decision to install a traffic signal. Here, the installation of a stop and go signal had received only preliminary approval. Since TXDOT commonly processes requests for funding assistance before preliminary construction plans have been prepared, the receipt of funds does not mean plans were complete. Further, after the letter was sent, engineering evaluations of the site continued. And as early as Jan. 8, 1997, (more than six months before the first of the four accidents here), TXDOT engineers recommended that a stop and go type signal should not be installed, but instead that the flashing beacon should be upgraded and special intersection signs be installed. Moreover, no agreement between TXDOT and the city for a stop and go signal was ever prepared or authorized. And, under state regulations, agreement of the city is required for signal installations. 43 Tex. Admin. Code �25.5(b), (c) (2003). Instead, on Aug. 19,1997, the Houston District submitted its plans, specifications, and estimates (“PS&E”) regarding the upgraded flashing beacon to the State office for approval. On Oct. 14, 1997, the city of Patton Village approved the agreement for upgrading the flashing beacon signal and on Dec. 4, 1997, a contract was let. The letter shows only a preliminary plan to improve the intersection, not a “policy decision” for which TXDOT would be liable if it were implemented negligently. Instead, TXDOT’s decision to upgrade the flashing beacons and install special intersection signs is clearly a decision about what types of safety features to install, a decision that involves the exercise of discretion and for which immunity is not waived. The trial court erred in denying TXDOT’s plea to the jurisdiction. OPINION:Per curiam.

Want to continue reading?
Become a Free ALM Digital Reader.

Benefits of a Digital Membership:

  • Free access to 1 article* every 30 days
  • Access to the entire ALM network of websites
  • Unlimited access to the ALM suite of newsletters
  • Build custom alerts on any search topic of your choosing
  • Search by a wide range of topics

*May exclude premium content
Already have an account?

Reprints & Licensing
Mentioned in a Law.com story?

License our industry-leading legal content to extend your thought leadership and build your brand.


ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2021 ALM Media Properties, LLC. All Rights Reserved.