
In The


Court of Appeals


Ninth District of Texas at Beaumont


____________________


NO. 09-03-043 CV

____________________


TEXAS DEPARTMENT OF TRANSPORTATION, Appellant


V.


RICK GARRISON, STEVE GARRISON, JAMIE GARRISON, 

MICHELLE VAUGHN, individually and as representatives of the 

ESTATE OF SUSAN LOUISE WILSON, deceased; JESSIE BUSH, 

HELEN BUSH, HOMER SCOTT, MARTHA SCOTT, 

and MISTY MOSLEY, Appellees




On Appeal from the 359th District Court
Montgomery County, Texas

Trial Cause No. 98-12-04421-CV




O P I N I O N
	Homer and Martha Scott, Rick, Steve, and Jamie Garrison,  Michelle Vaughn, Helen
and Jessie Bush, and Misty Mosley, appellees, brought suit against the Texas Department of
Transportation ("TXDOT") 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.  We agree and therefore reverse the trial
court's decision and dismiss the appellees' claims for want of jurisdiction.
	The accidents occurred at the crossover intersection of U.S. 59 and Main Street in
Patton Village, Montgomery County, Texas, after TXDOT sent a letter dated November 27,
1996, ("Letter") to State Representative Bob Rabuck.  (1)  In the Letter, TXDOT's Executive
Director informed Representative 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. 
	 Appellees maintain the Letter indicates a decision was made to install a stop and go
signal at the intersection, and, thus,  subject matter jurisdiction is proper because the State
lost its immunity from suit when it failed to implement that decision.  In its first issue, 
TXDOT contends it has the discretion to change a decision without waiving its immunity,
and, thus, the appellees' claims are barred.
	Unless waived, the long recognized doctrine of sovereign immunity  protects the
State, its agencies, and officials from lawsuits for damages.  Federal Sign v. Texas Southern
University, 951 S.W.2d 401, 405 (Tex. 1997).  However, the Texas Tort Claims Act ("Act")
waives the State's sovereign immunity from suit for tort claims to the extent the Act creates
liability.  See Tex. Civ. Prac. & Rem. Code §§ 101.002; 101.025(a) (Vernon 1997).  One
liability created by the Act is for personal injuries and death "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."  Tex. Civ. Prac. & Rem. Code § 101.021
(2) (Vernon 1997).   
	But, the Act also establishes various exceptions to this general waiver of immunity. 
Section 101.056 provides for the State to retains its sovereign immunity from claims based
on:
	(1) the failure of a governmental unit to perform an act that the unit is not
required by law to perform;  or

	(2) a governmental 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 discretion of the
governmental unit.  

Tex. Civ. Prac. & Rem. Code § 101.056 (Vernon 1997).  Thus, the State retains its
immunity from suits arising from its discretionary acts and omissions.  Tex. Dept. of Transp.
v. Garza, 70 S.W.3d 802, 806 (Tex. 2002).
	In addition, there are other applicable exceptions specifically concerning traffic and
road control devices.  Section 101.060(a) states that the Act does not waive the State's
immunity for claims arising from:
		(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.

Tex. Civ. Prac. & Rem. Code § 101.060(a) (Vernon 1997).
	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, 326-27 (Tex. 2002).  Such decisions are the very ones for which immunity is
retained under section 101.060(a) of the Act.  Tex. Dept. of Transp. v. Bederka, 36 S.W.3d
266, 271 (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.
Id. (citing Zambory v. City of Dallas, 838 S.W.2d 580, 582-83 (Tex. App.--Dallas 1992, writ
denied)).  The implementation of a policy decision, unlike the actual decision making, is
nondiscretionary and waives immunity.  Id. at 272.  
	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
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."  Zambory, 838
S.W.2d at 582.  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.  Zambory, 838 S.W.2d at 583. 
	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 January 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 August
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 October 14,
1997, the City of Patton Village approved the agreement for upgrading the flashing beacon
signal and on December 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.  See Gonzalez, 82 S.W.3d at
326-27. 
	The trial court erred in denying TXDOT's plea to the jurisdiction.  The ruling of the
trial court is reversed, and judgment is rendered dismissing the case for lack of jurisdiction.
	REVERSED AND RENDERED.

									PER CURIAM

Submitted on September 4, 2003
Opinion Delivered October 30, 2003


Before McKeithen, C.J., Burgess and Gaultney, JJ.
1.    The four accidents occurred between June 22, 1997, and February 4, 1998.  One
involved Susan Louise Wilson who subsequently died as a result of the injuries received;
appellees Rick, Steve, and Jamie Garrison, and Michelle Vaughn bring suit individually and
on behalf of the decedent's estate. 
