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Click here for the full text of this decision FACTS:The city of Grapevine and Grapevine Mills, LLC (Mills) entered into an agreement pursuant to which Mills would build the Grapevine Mills Mall (the mall). The city planned to widen a nearby road, Business 114. The city hired an engineering firm to create a traffic control plan for the project; the resulting plan required a permanent traffic signal at the intersection of Business 114 and State Highway 26. The plan did not call for a temporary traffic signal during construction, however. Because the intersection became a high accident site during construction, the city asked the Texas Department of Transportation (TxDOT) to erect a temporary traffic signal on the state-owned right-of-way. TxDOT responded that funding was inadequate for such a signal, so the city began to raise the necessary monies itself. The city hired a private consultant to prepare a warrant study justifying the need for a temporary signal, and on October 29, 1997, city officials met to coordinate its construction; the city planned to begin installation by November 7. The signal was not installed, however, until December 5. On November 28, Amy Sipes and her daughter, Tana Trevino Waddell, were traveling northbound on 114, heading to the newly opened Grapevine Mills Mall. At the intersection of 114 and 26, Sipes stopped at the temporary stop sign, but she alleges that her vision was obstructed by concrete barriers, a “road closed” sign, and barrels. As Sipes inched her vehicle forward, it was struck by a truck driven by Jerry Gaston, who had been traveling eastbound on Northwest Highway. Both Sipes and Waddell sustained injuries. Sipes, individually and as next friend of her daughter, sued the city and others for damages from injuries sustained in the accident. The city pleaded governmental immunity and moved for summary judgment on that and other bases. Sipes responded, alleging in part that the absence of a traffic signal or a four-way stop, “where a permanent signal was provided for,” waived the City’s immunity pursuant to �101.060. The trial court granted the city’s motion and severed the claims. Under the Texas Tort Claims Act, a governmental unit retains immunity for claims based on the absence of a traffic signal unless the absence is not corrected by the governmental unit within a reasonable time after notice. Texas Civil Practice & Remedies Code �101.060(a)(2). The trial court held that this provision immunized the city of Grapevine from liability based on its alleged negligence in failing to install a traffic signal within a reasonable time after initially deciding to do so. Sipes appealed. The court of appeals reversed and remanded the trial court’s judgment in favor of the city on the traffic signal issue, but affirmed the remainder of the judgment. The court held that, while the city exercised discretion in deciding to install a temporary traffic signal at the intersection, “a question of material fact exists concerning whether the City properly implemented its decision by installing the temporary traffic signal within a reasonable time thereafter.” HOLDING:The Supreme Court concludes that “absence,” as used in subsection (a)(2), requires a prior presence. It therefore reverses in part the court of appeals’ judgment and renders judgment dismissing the case for lack of subject matter jurisdiction. This use-of-property waiver in the �101.021(2) is an exception to the general rule of governmental immunity. The court notes that it is construing an exception to the exception: the waiver’s non-application to claims arising from “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.” The question is whether and under what conditions the absence of a traffic light may give rise to a governmental unit’s liability under the TTCA. Section 101.060 identifies three exceptions to the TTCA’s waiver of immunity provisions: 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. The court notes it has not previously construed the term “absence” as used in subsection 101.060(a)(2) and the intermediate courts of appeals have differed in their interpretation of the term. The court begins by examining the statutory context within which “absence” is placed. Subsection (a)(1), which immediately precedes (a)(2), retains immunity for “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.” In subsection (a)(1), therefore, the Legislature expressed its intent that a governmental unit remains immune for an initial placement decision, provided it was the result of a discretionary act. If (a)(2)’s “absence” included not just signs that were previously present, but those that had not yet been placed, it is difficult to imagine what would remain of (a)(1)’s immunity retention. Indeed, characterizing a failure to initially install a traffic signal as an “absence” would contravene the Legislature’s intent to immunize governmental units from claims based on the failure to initially place signals, provided such failures were the result of discretionary acts. When the city first installs a traffic signal is no less discretionary than whether to install it. The timing of implementation could be affected by the governmental unit’s balancing of funding priorities, scheduling, traffic patterns, or other matters; to impose liability for the failure to timely implement a discretionary decision could penalize a governmental unit for engaging in prudent planning and paralyze it from making safety-related decisions. This sort of planning and execution is precisely the type of discretionary act for which the TTCA retains immunity. Thus, when subsections (a)(1) and (a)(2) are read together, (a)(2) logically applies only to those traffic signals that have already been installed. Both subsections (a)(2) and (a)(3) refer, among other things, to the government’s failure to replace a missing traffic device. In (a)(3), the statute provides a safe harbor if the government “corrects” a traffic device’s removal; the safe harbor is provided in (a)(2), if the government “corrects” the absence of the device. Logically, “correct” in (a)(3) must be predicated on the prior existence of a traffic device, because it modifies that device’s “removal,” and a failure to correct waives immunity only after the governmental unit has been put on actual “notice,” presumably of a change in the device’s status. So, at least with respect to (a)(3), the Legislature used the word “correct” to refer to replacing a device that has been removed. The question here is whether “correct” in (a)(2) similarly requires replacement of a preexisting device after its disappearance. The court holds that it must, then goes on to note that subsection (a)(2)’s other terms reinforce its conclusion. It is undisputed that the city’s initial decision to install the traffic signal was discretionary. Unquestionably, therefore, the city would have retained immunity had it decided not to install the traffic signal. It makes little sense to waive immunity for a governmental unit that decides to install a signal and is endeavoring to do so. Considering the plain meaning of the statutory terms, the interplay between subsections (a)(1), (a)(2), and (a)(3), and the context within which “absence” is used in subsection (a)(2), we conclude that an “absence” requires a prior presence; that is, it does not apply to a governmental unit’s initial installation of, or failure to initially install, a traffic signal. To the extent other opinions have held differently, the court disapproves of them. OPINION:Jefferson, C.J., delivered the opinion of the court.

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