                                      NO. 07-03-0195-CV

                                 IN THE COURT OF APPEALS

                          FOR THE SEVENTH DISTRICT OF TEXAS

                                         AT AMARILLO

                                               PANEL A

                                        APRIL 26, 2005

                             ______________________________

           DARRELL AND LINDA SEHORN, INDIVIDUALLY AND AS
         LEGAL HEIRS AND REPRESENTATIVES OF THE ESTATE OF
    STACEY SEHORN, SHAWN REAMS AND NAKISHA HORTON, APPELLANTS

                                                 V.

                 TEXAS DEPARTMENT OF TRANSPORTATION, APPELLEE
                        _________________________________

                 FROM THE 223RD DISTRICT COURT OF GRAY COUNTY;

                      NO. 32106; HONORABLE LEE WATERS, JUDGE
                           _______________________________

Before JOHNSON, C.J., and REAVIS and CAMPBELL, JJ.1


                                  MEMORANDUM OPINION


       Appellants Darrell and Linda Sehorn, acting individually and on behalf of the estate

of their daughter Stacey Sehorn, Shawn Reams and Nakisha Horton appeal the dismissal

of their suit for damages against the Texas Department of Transportation. The trial court

dismissed it on the Department’s plea to the jurisdiction that argued the suit was barred by




       1
           Johnson, C.J., not participating.
sovereign immunity. Appellants present a single point asserting the trial court’s dismissal

was error. We affirm the dismissal.


       Stacey Sehorn died, and Shawn Reams and Nakisha Horton were injured, when the

vehicle in which they were passengers ran through the intersection of Loop 171 and Texas

Highway 273 south of Pampa in Gray County.            The intersection is T-shaped, with

southbound Loop 171 dead-ending at that point on Highway 273. Appellants’ pleadings

said the vehicle crossed Highway 273, impacted the ditch and became airborne, coming

to rest in the adjacent pasture.


       Appellants’ pleadings asserted the intersection was dangerous, and drivers were not

properly and adequately warned of the approaching intersection and the approaching end

of the roadway. Specifically, appellants’ alleged, the Department “had in place numerous

signs and warning devices, which were defective in that they were not properly sized,

configured, and placed.” Appellants further alleged the Department had actual knowledge

that the intersection was “dangerously defective,” from the State’s accident records

showing a number of motor vehicles had failed to stop and had run through the intersection

into the pasture, in the same manner as this vehicle. Appellants alleged the Department

further had actual knowledge that the traffic signs and warnings in place were not

performing their intended traffic control function. They alleged that the Department, despite

its actual knowledge, failed to warn the public, and these motorists in particular, of the

defective roadway. By failing to correct, or warn of, the dangerous intersection, appellants




                                            -2-
pleaded, the Department breached its duty of care under Sections 101.021(2) and

101.022(a) of the Texas Tort Claims Act.2


       Photographs introduced at the hearing on the Department’s plea to the jurisdiction

show traffic at the intersection at the time of the accident was controlled by a stop sign on

Loop 171. Directional signs with arrows identifying Highway 273 North and South stood

facing the intersection across that highway. The trial court also considered a report signed

by registered professional engineer R. T. Abrahamson attached to the response appellants

filed to the Department’s plea to the jurisdiction. The report describes the signs that would

be encountered by a southbound driver approaching the intersection.3 It states, among

other things, that the size of the stop sign “does not appear to be adequate,” that the

elevation of signs on the far side of the intersection was too low for normal viewing range

for a southbound driver, and that the far side of the intersection did not have a large “arrow

board sign.” It notes also that the superelevation of Highway 273 at the intersection is such

that southbound drivers on Loop 171 cannot see the pavement on Highway 273. The

report further states that the “height, line of sight, size, conspicuity, legibility, and target

value of the signs described do not appear to meet/exceed standards” and that

“[s]outhbound drivers do not have adequate stimulus when approaching State Highway 273




       2
       Reference to sections or the act are to Texas Civil Practice and Remedies Code
Annotated (Vernon 1997) unless otherwise noted.
       3
        The report also makes reference to “well worn” rumble strips that were “almost
ineffective.”

                                              -3-
in darkness and/or inclement weather4 to respond in a timely manner.” The report notes

the speed limit for drivers approaching the intersection was 70 mph during the day and 65

mph at night. Abrahamson’s conclusions include those that the section of the highway on

which the accident occurred is dangerous based on the number of incidents at the

intersection involving southbound vehicles, and that revising the signage and median

pavement marking provisions would significantly reduce accidents involving southbound

drivers.5


                                   Standard of Review


       The Department’s plea to the jurisdiction challenged the district court’s subject

matter jurisdiction over appellants’ claims against it. Texas Dep’t of Transp. v. Jones, 8

S.W.3d 636, 637 (Tex. 1999). The existence of the court’s subject matter jurisdiction is a

legal question that we review de novo. Mayhew v. Town of Sunnyvale, 964 S.W.2d 922,

928 (Tex. 1998).


                                      Applicable Law


       The State is immune from suit for damages unless it has expressly consented to be

sued. Absent the State’s consent, a trial court lacks subject matter jurisdiction over a suit



       4
        The accident report in the record gives the time of the accident as 2:45 a.m. The
report indicates the weather was cloudy and the pavement was dry.
       5
        Darrell Sehorn also testified at the hearing on jurisdiction. He identified
photographs of the intersection depicting skidmarks and the signs in place at the
intersection at the time of the accident and those later installed. He also criticized the
contours of the ditch on the far side of the intersection.

                                             -4-
against the State. Jones, 8 S.W.3d at 638. This immunity applies to the Department, as

a state entity. Texas Dep’t of Transp. v. Garza, 70 S.W.3d 802, 806 (Tex. 2002). See

Wichita Falls State Hosp. v. Taylor, 106 S.W.3d 692, 694 n.1 (Tex. 2003). A party suing

a state entity must establish the State’s consent to the suit, and may do so by reference to

a statute or a resolution granting express legislative permission. Jones, 8 S.W.3d at 638.

To waive the State’s sovereign immunity, a statute or resolution must contain a clear and

unambiguous expression of the Legislature’s waiver of immunity. Wichita Falls State

Hosp., 106 S.W.3d at 696.


       To the extent the Texas Tort Claims Act creates liability, it waives the State’s

sovereign immunity from suit for tort claims. § 101.025; Texas Dep’t of Transp. v. Ramirez,

74 S.W.3d 864, 866 (Tex. 2002). Section 101.021(2) of the Act provides for the liability of

a Texas governmental unit for personal injury and death caused by a condition of real

property if the governmental unit would, were it a private person, be liable to the claimant

according to Texas law. Section 101.022(a) of the Act provides that for claims arising from

premise defects, the governmental unit owes the claimant only the duty a private person

owes a licensee on private property, unless the claimant pays for the use of the premises.


       The Act’s waiver of the State’s immunity is subject to exclusions and exceptions,

among which are those stated in Section 101.056, excluding claims based on a

governmental unit’s exercise of discretionary powers, and those stated in Section 101.060,

relating to traffic and road control devices.




                                                -5-
                                          Analysis


       The parties’ arguments on appeal center on the application of Sections 101.056 and

101.060(a) to appellants’ allegations against the Department. The Department contends

appellants’ allegations concern the initial selection and placement of traffic control devices

and the failure to modify these features, discretionary decisions for which the Department

retains immunity.


       Appellants seem to contend Section 101.056 does not exclude the Department’s

failings with respect to the intersection from the Act’s waiver of immunity because Section

101.022(a) imposes on the Department the duty to make the roadway safe or warn the

public of its dangerous condition. Under appellants’ view, the Department therefore does

not have discretion to decide whether to comply with that duty, and their allegations the

Department failed to comply bring the case within the ambit of Section 101.021(2).

Controlling authority compels our disagreement with appellants. The exclusion for

discretionary actions under Section 101.056 applies to suits attempting to hold the

Department responsible for premises defects. See State ex rel. State Dep’t of Highways

and Pub. Trans. v. Gonzalez, 82 S.W.3d 322, 325-26 (Tex. 2002); Ramirez, 74 S.W.3d at

866; State v. Rodriguez, 985 S.W.2d 83, 85 (Tex. 1999). Appellants also contend 101.056

has no application here because of the Department’s knowledge of the dangerous condition

of the intersection. The supreme court’s application of Section 101.056 in Ramirez

forecloses that contention. Ramirez involved premise defect claims that the Department

had failed to correct or warn of a dangerous condition allegedly created by a highway

median’s slope and the absence of safety features between opposing lanes of traffic. Like

                                             -6-
here, the plaintiff in Ramirez presented accident reports about similar accidents on the

same section of highway to establish its dangerous condition and the Department’s

knowledge of the dangerous condition. In a per curiam opinion, the supreme court

reversed the court of appeals, which had affirmed the trial court’s denial of the

Department’s plea to the jurisdiction, and dismissed the claims, finding them barred by

sovereign immunity. The supreme court cited Section 101.056(2) and reiterated its holding

in Rodriguez that the design of a public work like a roadway is a discretionary function

involving many policy decisions, and the governmental entity responsible may not be sued

for such decisions. Ramirez, 74 S.W.3d at 867, citing Rodriguez, 985 S.W.2d at 85. The

court also restated its holding in State v. Miguel that decisions about installing safety

features are discretionary decisions for which the State may not be sued. Ramirez, 74

S.W.3d at 867, citing State v. Miguel, 2 S.W.3d 249, 251 (Tex. 1999) (per curiam) and

Maxwell v. Texas Dep’t of Transp., 880 S.W.2d 461, 463 (Tex.App.–Austin 1994, writ

denied).6 Ramirez establishes that an allegation the Department knew of the dangerous

condition of the intersection does not preclude the application of the discretionary function

exclusion stated in Section101.056.


       Appellants also assert Section 101.060(a) does not bar their suit because to the

extent their claims are based on the signs and traffic control devices at the intersection,


       6
        The court in Miguel further stated: “A court should not second-guess a
governmental unit’s decision about the type of marker or safety device that is the most
appropriate.” 2 S.W.3d at 251, citing Maxwell, 880 S.W.2d at 464. See also Siders v.
State, 970 S.W.2d 189, 192 (Tex.App.–Dallas 1998, pet. denied) (“Lights, signs, and safety
features are part of a roadway design; therefore, the placement of stop signs and other
safety features are discretionary in nature and cannot give rise to liability under the Tort
Claims Act.”).

                                             -7-
they come within the language of Section 101.060(a)(2), relating to the condition of the

signs and devices. They note the statement in Gonzalez, 82 S.W.3d at 327, that Section

101.060(a)(2) requires the State to maintain traffic signs in a condition sufficient to perform

their intended traffic control function, and argue Section 101.060(a)(2) waives the

Department’s immunity from suit for its failure to do so here when it was on notice of the

defective condition of the control devices from the numerous previous accidents. Again,

controlling authority requires that we disagree.


       In Gonzalez, the supreme court determined that a traffic sign’s susceptibility to

vandalism is not a “condition” of the sign under Section 101.060(a)(2). Id. at 328-29. The

supreme court also considered the meaning of the term “condition” in Texas Dep’t of

Transp. v. Garza, 70 S.W.3d 802 (Tex. 2002). There, the court found a traffic sign that

accurately stated the established speed limit did not present a “condition” of the sign within

the meaning of Section 101.060(a)(2) so as to permit a suit alleging the Department was

negligent in failing to correct the 45-mph speed limit near a school. Id. at 807. In so doing,

the court stated that the “condition” of a traffic sign or signal referred to in Section

101.060(a)(2) is something “wrong” with the sign or signal. The court further summarized

several prior decisions by noting it had found a waiver of immunity under the language of

Section 101.060(a)(2) only when the sign or signal was unable to convey the intended

traffic control information, or conveyed traffic control information other than what was

intended. Id.


       Even liberally construed, appellants’ pleadings do not allege something “wrong” with

the traffic control devices for southbound traffic on Loop 171 approaching its intersection

                                              -8-
with Highway 273, in the sense case law has applied Section 101.060(a)(2). The signs in

place are not alleged to be obstructed from drivers’ vision like that in Lorig v. City of

Mission, 629 S.W.2d 699 (Tex. 1982) (per curiam), to state wrong information like the

erroneous speed limit in Alvarado v. City of Lubbock, 685 S.W.2d 646 (Tex. 1985), or to

mislead drivers like the modified red stop light with a left-turn arrow in Sparkman v.

Maxwell, 519 S.W.2d 852 (Tex. 1975). Nor do appellants’ pleadings assert the traffic

control devices were in disrepair or were not activated, like the pavement markers and

school zone sign in City of Midland v. Sullivan, 33 S.W.3d 1 (Tex.App.–El Paso 2000, no

pet.). As noted, appellants pleaded that the signs and warning devices in place at the time

of the accident were not properly sized, configured, and placed. But it is clear from the

pleadings and evidence presented here that they were sized, configured and placed in the

manner selected by the Department. The propriety of those decisions by the Department

does not reflect the “condition” of the signs and devices for purposes of Section

101.060(a)(2). Garza, 70 S.W.3d at 807. Such decisions instead are the type for which

the Act retains the State’s immunity from suit. See Ramirez, 74 S.W.3d at 867; Texas

Dep’t of Transp. v. Bederka, 36 S.W.3d 266, 271 (Tex.App.–Beaumont 2001, no pet.).


      Appellants’ point of error is overruled. The trial court’s judgment of dismissal is

affirmed.


                                         James T. Campbell
                                             Justice




                                            -9-
