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COURT OF APPEALS


THIRTEENTH DISTRICT OF TEXAS


CORPUS CHRISTI - EDINBURG

 

MARIA RODRIGUEZ, INDIVIDUALLY				       Appellants,
AND AS REPRESENTATIVE OF THE ESTATE
OF SAUL VILLAFRANCO, AND RAMIRO RIOS,
INDIVIDUALLY AND AS REPRESENTATIVE OF
THE ESTATE OF ELISEO RIOS

v. 

THE COUNTY OF CAMERON, TEXAS AND
CAMERON COUNTY IRRIGATION DISTRICT NO. 2 	         Appellees.
 

On appeal from County Court at Law No. 3
of Cameron County, Texas

 

MEMORANDUM OPINION


Before Justices Yañez, Garza, and Vela

Memorandum Opinion by Justice Vela

	This is an appeal from an order granting a plea to the jurisdiction in favor of
appellees, Cameron County and Cameron County Irrigation District No. 2 ("the County"). 
By three issues, appellants, Maria Rodriguez, individually and as representative of the
estate of Saul Villafranco, and Ramiro Rios, individually and as representative of the estate
of Eliseo Rios ("collectively Rodriguez") raise three issues, claiming:  1) appellees had a
duty to warn of special defects; 2)  there was a failure to warn at the time of the incident;
and, 3)  if the Texas Tort Claims Act does not apply, there was no immunity under common
law for proprietary functions.  We affirm.	
I.  Background
			Rodriguez filed suit against the County complaining of the wrongful deaths of Saul
Villafranco and Eliseo Rios.  The pleadings state that Villafranco and Rios were traveling
by automobile on Hudson Road in Cameron County to a location where Hudson Road
turned and crossed over an irrigation canal owned and operated by Cameron County
Irrigation District No. 2.  According to the petition, Hudson Road turns sharply to the left,
crosses an unmarked concrete bridge, and continues to the other side of the canal. 
Rodriguez claimed that there were no signs indicating a turn or bridge.  Surprised by a
sudden left turn, Villafranco, the driver, executed a turn that did not place the car safely on
the bridge.  The car overturned and plunged into the water below.  Villafranco and Rios
drowned.
	 Rodriguez claimed the trial court had jurisdiction pursuant to the Texas Tort Claims
Act because the bridge in question was a special defect and the County had a continuing
duty to warn.  Rodriguez also argued that if the Texas Tort Claims Act does not apply, then
Cameron County is liable because governmental units were not immune for proprietary
functions under common law.  

	Cameron County filed its plea to the jurisdiction asserting that the Texas Tort Claims
Act is inapplicable to this case because it does not apply to a claim based on an act or
omission that occurred before January 1, 1970.  Tex. Civ. Prac. & Rem. Code Ann. §
101.061 (Vernon 2005).  The County urges the bridge-like structure that crosses over the
irrigation ditch was constructed prior to January 1, 1970, and has not been substantially
modified.  As support for that proposition, the County included an affidavit of Clarence
Magourik, the general manager for Cameron County Irrigation District No. 2,  who averred
that the structure existed prior to 1970 and has undergone no substantial modifications. 
Additionally, Cameron County argued that there was no waiver of sovereign immunity for
the absence of traffic control devices because the decision to install such devices is a
discretionary function and does not waive sovereign immunity.  See Tex. Civ. Prac. & Rem.
Code § 101.056, 101.060(a)(1) (Vernon 2005).  
	In response, Rodriguez urges that her claim is based on a premises defect and a
special defect.  She argues that the County failed to make repairs within a reasonable time
after notice.  Rodriguez asserts that prior incidents substantially similar to the incident in
this case had transpired in the past.  She also contends  that there is "a combination of
characteristics at the bridge" that constitute a special defect.  For instance, the roadway
is obscured by vegetation; the turn is not marked; the canal is not visible, and there are no
barricades or barriers to indicate the edge of the bridge.  Rodriguez submitted the affidavit
of Jeff Heumann, an individual who inspected the site where the deaths occurred. 
Heumann averred that in his opinion, the roadway had been changed because it had been
graded to reduce potholes, a "Caution Children Playing" sign had been removed, and an
"End of Pavement" sign had been removed.  
II.  Sovereign Immunity
	Generally, the State of Texas has sovereign immunity from suit unless waived by
the Legislature.  Gen. Servs. Comm'n v. Little-Tex Insulation Co., 39 S.W.3d 591, 594
(Tex. 2001).  The Texas Tort Claims Act permits suits against governmental units for
personal injuries in three general circumstances, including personal injuries caused by: 
(1) the use of publicly owned automobiles; (2) a condition or use of tangible personal or
real property; and (3) a premises defect, or the condition on real property.  See Tex. Civ.
Prac. & Rem. Code Ann. §§ 101.021(1)-(2), 101.022 (Vernon 2005); Perez v. City of
Dallas, 180 S.W.3d 906, 910 (Tex. App.-Dallas 2005, no pet.).  Liability for premises
defects is implied under section 101.021(2) because a premises defect arises from a
condition existing on real property.  Perez, 180 S.W.3d at 910 (citing City of Midland v.
Sullivan, 33 S.W.3d 1, 6 (Tex. App.-El Paso 2000, pet. dism'd w.o.j.); Lamar Univ. v. Doe,
971 S.W.2d 191, 195 (Tex. App.-Beaumont 1998, no pet.)).  If the condition of real
property giving rise to the waiver of immunity is a premises defect, the governmental unit
owes to the claimant only the duty that a private person owes to a licensee on private
property.  Tex. Civ. Prac. & Rem. Code Ann. § 101.022(a).  However, if the claimant pays
for the use of the premises, the limitation of duty under section 101.022 does not apply and
the governmental entity owes the claimant the duty owed to an invitee.  See id.  The duty
to an invitee "requires an owner to use ordinary care to reduce or eliminate an
unreasonable risk of harm created by a premises condition of which the owner is or
reasonably should be aware."  State Dep't of Highways & Pub. Transp. v. Payne, 838
S.W.2d 235, 237 (Tex.1992).
	A  plaintiff must plead facts sufficient to invoke a waiver of sovereign immunity under
the Texas Tort Claims Act.  County of Cameron v. Brown, 80 S.W.3d 549, 555 (Tex. 2002);
Univ. of N. Tex. v. Harvey, 124 S.W.3d at 216, 222 (Tex. App.-Fort Worth 2003, pet.
denied).  We must look to the terms of the tort claims act and then determine whether the
liability theories pleaded, the facts pleaded, and the evidence presented demonstrate a
claim falling within the waiver of immunity.  Univ. of N. Tex., 124 S.W.3d at 222.
 The Act specifically provides that it does not waive immunity for claims based on an
act or omission that occurred before January 1, 1970.  Tex. Civ. Prac. & Rem. Code Ann.
§ 101.061 (Vernon 1997).  When there is an alleged waiver of immunity based on a
condition or use of personal or real property, the state governmental entity is entitled to
immunity if it can prove that the structure was completed before 1970 and has remained
in the same condition since that time.  Maxwell v. Tex. Dep't of Transp., 880 S.W.2d 461,
465 (Tex. App.-Austin 1994, writ denied).  Subjecting the government to liability under the
Act for structures built prior to the Act (and not thereafter changed) would place the
government in an unfair position of trying to analyze every structure under its control and
then rebuild, redesign and make safe those structures in order to defend against liability. 
Cranford v. City of Pasadena, 917 S.W.2d 484, 488 (Tex. App.-Houston [14th Dist.] 1996,
no writ).  A county's failure to install guardrails, replace a bridge, or post warnings after
January 1, 1970, was not an act or omission waiving immunity.  French v. Johnson County,
929 S.W.2d 614, 617 (Tex. App.-Waco 1996, no writ).  Therefore, a state governmental
entity cannot be held liable under the Act for acts or omissions occurring before January
1, 1970, and its continued failure to modify structures built before that date does not
constitute an act or omission occurring after that date.  Id.  
III.  Standard of Review
	 A plea to the jurisdiction challenges the trial court's authority to determine the
subject matter of the action.  Tex. Dep't of Transp. v. Jones, 8 S.W.3d 636, 638
(Tex.1999).  Whether a trial court has subject matter jurisdiction and whether a pleader has
alleged facts that affirmatively demonstrate the trial court's subject matter jurisdiction are
questions of law that we review de novo.  Tex. Dep't of Parks & Wildlife v. Miranda, 133
S.W.3d 217, 226 (Tex. 2004); Tex. Natural Res. Conservation Comm'n v. IT-Davy, 74
S.W.3d 849, 855 (Tex. 2002).  The plaintiff has the burden to plead facts affirmatively
showing that the trial court has jurisdiction.  Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852
S.W.2d 440, 446 (Tex. 1993); Univ. of N. Tex. v. Harvey, 124 S.W.3d at 220.  We construe
the pleadings liberally in favor of the pleader, look to the pleader's intent, and accept as
true the factual allegations in the pleadings.  See Miranda, 133 S.W.3d at 226, 228; City
of Fort Worth v. Crockett, 142 S.W.3d 550, 552 (Tex. App.-Fort Worth 2004, pet. denied). 
If a plea to the jurisdiction challenges the existence of jurisdictional facts, we consider
relevant evidence submitted by the parties when necessary to resolve the jurisdictional
issues raised, as the trial court is required to do.  See Bland Indep. Sch. Dist. v. Blue, 34
S.W.3d 547, 555 (Tex. 2000) (confining the evidentiary review to evidence that is relevant
to the jurisdictional issue).  We take as true all evidence favorable to the non-movant and
indulge every reasonable inference and resolve any doubts in the non-movant's favor. 
Miranda, 133 S.W.3d at 228.  If the evidence creates a fact question regarding the
jurisdictional issue, then the trial court cannot grant the plea to the jurisdiction, and the fact
question will be resolved by the fact-finder.  Id. at 227-28; Bland, 34 S.W.3d at 555.  If the
relevant evidence is undisputed or fails to raise a fact question on the jurisdictional issue,
however, the trial court rules on the plea to the jurisdiction as a matter of law. Miranda, 133
S.W.3d at 227-28; Bland, 34 S.W.3d at 555.					
IV. Analysis
	The County's plea to the jurisdiction challenges the propriety of jurisdiction pursuant
to the Texas Torts Claims Act.  The evidence presented established that the bridge-like
structure existed in substantially the same condition since before 1970.  Rodriguez's
controverting evidence, an affidavit by Jeff Heumann, concludes that he believed the
bridge was significantly modified.  He does not, however, indicate that any such
modifications happened after 1970.  His affidavit does not raise an issue to controvert the
evidence presented in the plea to the jurisdiction.  
	This Court has, on at least two occasions, addressed a similar issue.  In Hidalgo
County v. Villalobos, this Court held that a road, upon which an accident occurred, was
constructed prior to 1970.  See No. 13-02-00710-CV, 2004 WL 351864 at *2 (Tex.
App.-Corpus Christi, Feb. 26, 2004, no pet.) (mem. op.).  Since that time, its condition
remained constant.  Id.  The plaintiffs, in that case, urged that after January 1, 1970, the
county failed to adequately mark the road, protect it by guardrail, and post sufficient
warning signs.  Id.  This Court held that the evidence conclusively established that the road
was constructed before January 1, 1970 and further determined that decisions regarding
highway designs and safety features are discretionary functions for which immunity is not
waived.   Id.  

	Similarly, in Sanchez v. Matagorda County, this Court held that the significant design
and repair of a bridge after 1970 was a discretionary act for which its sovereign immunity
has not been waived.  124 S.W.3d 350, 353 (Tex. App.-Corpus Christi 2003, no pet.). 
Additionally, a decision not to install guard rails, replace the bridge or post warning signs
are discretionary functions.  French, 929 S.W.2d at 617; Barron v. Tex. Dep't of Transp.,
880 S.W.2d 300, 302 (Tex. App.-Waco 1994, writ denied).  The argument that the
configuration of the bridge is a special defect is not dispositive because the bridge was built
and has existed substantially in the same condition since before 1970.  We see no real
distinction between the previous holdings of this Court and other Courts from the
arguments Rodriguez made here.  The County established that the bridge in question
existed since before 1970 without substantial change.  As a result, the County is immune
and there has been no waiver for the discretionary functions asserted.
	Rodriguez claims that under common law, the County was exercising its proprietary
functions.  Under common law , municipalities were immune from liability as agents of the
state.  Lawrence v. City of Wichita Falls, 906 S.W.2d 113, 115 (Tex. App.-Fort Worth
1995, writ denied).  The judiciary created exceptions where it classified the function at
issue as proprietary.  Id.  Governmental units, such as irrigation districts, performed
governmental functions exclusively and could not be liable in tort.  Id.  Because the County
and irrigation district did not perform proprietary functions at common law, this claim also
fails.  Appellants' issues are overruled.



V.  Conclusion
	The judgment of the trial court is affirmed.  
 

								ROSE VELA
								Justice

Memorandum Opinion delivered and 
filed this 8th day of January, 2009.







 
