





 

 
NUMBER 13-99-759-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI
____________________________________________________________________


TEXAS DEPARTMENT OF TRANSPORTATION,			Appellant,


v.

JESUS GARZA AND MARIA ELENA GARZA,

INDIVIDUALLY AND AS PERSONAL

REPRESENTATIVES OF THE ESTATE OF

ROLANDO GARZA, DECEASED,						Appellees.

____________________________________________________________________


On appeal from the 332nd District Court of Hidalgo County, Texas.
____________________________________________________________________


O P I N I O N

Before Chief Justice Seerden and Justices Hinojosa and Yañez
Opinion by Justice Hinojosa

	This is an interlocutory appeal from the trial court's denial of a plea to the
jurisdiction filed by appellant, Texas Department of Transportation ("TxDOT").  In a
single issue, TxDOT contends the trial court erred in denying the plea.  We affirm.

	Jesus and Maria Elena Garza ("the Garzas") brought an action against TxDOT
after the death of their son, Rolando Garza.  On September 26, 1988, a car struck and
killed Rolando while he was waiting to cross U.S. Highway 83 in Hidalgo County,
Texas to attend Alamo Junior High School.  While Rolando stood on the shoulder on
the north side of Highway 83 and waited for the traffic to clear, a motorist, traveling
west on Highway 83, passed another westbound vehicle.  After she returned to her
lane of travel, the first motorist lost control of her car and struck and killed Rolando.

	The accident occurred near Alamo Junior High School.  The school, built in
1986, is situated on the south side of Highway 83.  The Garzas alleged that no signs
were posted in the vicinity of the school designating the area as a school zone and
setting a reasonable speed limit during school hours.  The speed limit set for this
stretch of highway was 45 mph.

	In 1990, the Garzas sued the State of Texas, through TxDOT, for negligence. 
The Garzas claimed TxDOT committed the following six negligent acts and omissions:

(1)	failure to initially place road signs designating the area a school
zone;


(2)	failure to initially place road signs in the vicinity of the school
setting a reasonable speed limit during school hours;


(3)	failure to correct the absence, condition or malfunction of road
signs within a reasonable time after notice was given;


(4)	failure to hold a public hearing to consider the speed limit in the
school zone;


(5)	failure to notify certain parties of the need for signs designating
the area as a school zone; and


(6)	failure to notify certain parties of the need for signs setting a
reasonable speed limit during school hours.


	On September 26, 1991, TxDOT filed a motion for summary judgment based
on sovereign immunity and claimed that such immunity was not waived by the Texas
Tort Claims Act.  The trial court granted the motion and the Garzas appealed to this
Court. 

	In Garza v. State, 878 S.W.2d 671 (Tex. App.--Corpus Christi 1994, no writ)
(en banc), this Court considered the Garzas' appeal of the summary judgment.  After
reviewing the Garzas' claims that TxDOT was negligent in failing to place road signs
in the school zone area, we determined that the sign placement in this case was
discretionary and that summary judgment was proper.  Garza, 878 S.W.2d at 675; see
Tex. Civ. Prac. & Rem. Code Ann. § 101.056 (Vernon 1997).  We then looked at
whether the State negligently failed to correct the absence, condition, or malfunction
of traffic or road signs in the vicinity of the school within a reasonable time after
receiving notice.  See Tex. Civ. Prac. & Rem. Code Ann. § 101.060 (a)(2) (Vernon
1997).  The Garzas argued that the existing signs in the area did not set a reasonable
speed limit, and that TxDOT should have remedied the problem by placing signs near
the school with a lower speed limit.  Garza, 878 S.W.2d at 675.  We concluded that
this claim fell within the purview of section 101.060 (a)(2) concerning signs already
in place.  Id.  Since the Garzas did not allege the absence or malfunction of the signs,
the issue was based on the condition of the signs.  Id.  Following a discussion of
"condition," we determined that

at this stage of the lawsuit, where only the pleadings were filed, we find
that it is premature to dismiss this particular claim.  On the face of the
pleadings, the Garzas have sufficiently stated a cause of action under §
101.060 (a)(2).  The State, which has the burden of proof, failed to
adequately demonstrate that § 101.060 (a)(2) is inapplicable as a matter
of law.


Id.  We concluded the trial court erred in granting summary judgment on the section
101.060 (a)(2) cause of action and remanded the case to the trial court for further
proceedings.(1)
	On October 29, 1999, TxDOT filed a Motion to Dismiss for Lack of Jurisdiction
asserting sovereign immunity and denying the applicability of section 101.060 (a)(2). 
The trial court denied the motion on November 22, 1999, and this interlocutory appeal
ensued.

	Under Texas procedure, appeals are allowed only from final orders or judgments. 
Jack B. Anglin Co. v. Tipps, 842 S.W.2d 266, 272 (Tex. 1992); North East Indep.
Sch. Dist. v. Aldridge, 400 S.W.2d 893, 895 (Tex. 1966).  Unless a statute
specifically authorizes an interlocutory appeal, Texas appellate courts have jurisdiction
only over final judgments.  Cherokee Water Co. v. Ross, 698 S.W.2d 363, 365 (Tex.
1985) (orig. proceeding); Aldridge, 400 S.W.2d at 895; City of Mission v. Ramirez,
865 S.W.2d 579, 581 (Tex. App.--Corpus Christi 1993, no writ).  Section 51.014 of
the civil practice and remedies code specifically allows the appeal of various
interlocutory orders, including an order that "grants or denies a plea to the jurisdiction
by a governmental unit as that term is defined in Section 101.001."  Tex. Civ. Prac.
& Rem. Code Ann. § 51.014(a)(8) (Vernon Supp. 2000).

	Subject matter jurisdiction is the authority of a court to decide a case.  Texas
Ass'n of Business v. Texas Air Control Bd., 852 S.W.2d 440, 443 (Tex. 1993).  A
plea to the jurisdiction contests the trial court's authority to determine the subject
matter of the cause of action.  State v. Benavides, 772 S.W.2d 271, 273 (Tex.
App.--Corpus Christi 1989, writ denied). 

	When considering a plea to the jurisdiction the trial court must determine the
issue of subject matter jurisdiction solely by the allegations in the plaintiff's pleading. 
Texas Ass'n of Bus., 852 S.W.2d at 446; Caspary v. Corpus Christi Downtown
Management Dist., 942 S.W.2d 223, 225 (Tex. App.--Corpus Christi 1997, writ
denied); Liberty Mut. Ins. Co. v. Sharp, 874 S.W.2d 736, 739 (Tex. App.--Austin
1994, writ denied).  The plaintiff bears the burden of alleging facts affirmatively
showing that the trial court has subject-matter jurisdiction to hear the case.  Texas
Ass'n of Bus., 852 S.W.2d at 446.  We take allegations in the pleadings as true and
construe them in favor of the pleader.  Id.  The trial court does not look at the merits
of the case.  See Huston v. Federal Deposit Ins. Corp., 663 S.W.2d 126, 129 (Tex.
App.--Eastland 1983, writ ref'd n.r.e.).  Unless the face of the petition affirmatively
demonstrates a lack of jurisdiction, the trial court must liberally construe the
allegations in favor of jurisdiction.  Trinity Universal Ins. Co. v. Sweatt, 978 S.W.2d
267, 269 (Tex. App.--Fort Worth 1998, no writ).  If, however, the petition clearly
shows the trial court lacks subject matter jurisdiction, the court must dismiss the case. 
Texas Ass'n of Bus., 852 S.W.2d at 443.  Because the question of subject matter
jurisdiction is a legal question, we review the trial court's ruling on a plea to the
jurisdiction under a de novo standard of review.  See Mayhew v. Town of Sunnyvale,
964 S.W.2d 922, 928 (Tex. 1998).

	Sovereign immunity has two component parts -- immunity from suit and
immunity from liability.  Missouri Pac.  R.R. v. Brownsville Navigation Dist., 453
S.W.2d 812, 813 (Tex. 1970); Ntreh v. University of Tex. at Dallas, 936 S.W.2d 649,
651 (Tex. App.--Dallas 1996), rev'd in part on other grounds, 947 S.W.2d 202 (Tex.
1997).  Immunity from liability protects the state from judgment even if the legislature
has expressly consented to the suit.  Federal Sign v. Texas S. Univ., 951 S.W.2d 401,
405 (Tex. 1997).  Immunity from liability does not affect a court's jurisdiction to hear
a case.  Davis v. City of San Antonio, 752 S.W.2d 518, 520 (Tex. 1988).  By
contrast, immunity from suit bars an action against the state, unless the state
expressly consents to the suit.  Federal Sign, 951 S.W.2d at 405.  The party suing the
governmental entity must establish the state's consent, which may be alleged either
by reference to a statute or to express legislative permission.  See Missouri Pac. R.R.
Co., 453 S.W.2d at 813.  Absent the state's consent to suit, a trial court lacks subject
matter jurisdiction.  See Federal Sign, 951 S.W.2d at 403; Duhart v. State, 601
S.W.2d 740, 741 (Tex. 1980).  If a governmental entity is sued without legislative
consent, the trial court should grant the governmental entity's plea to the jurisdiction. 
See State v. Lain, 349 S.W.2d 579, 582 (Tex. 1961).

	By enacting the Texas Tort Claims Act, the legislature expressly waived the
state's immunity to suits by injured claimants and consented to liability under specified
circumstances.  See Tex. Civ. Prac. & Rem. Code Ann.  §§ 101.021, 101.025 (Vernon
1997).  The Tort Claims Act constitutes a limited waiver of sovereign immunity.  To
invoke the trial court's jurisdiction, it is necessary to show the Act waives the state's
immunity from suit. 

	In its sole issue, TxDOT contends the trial court erred by denying its plea to the
jurisdiction based on sovereign immunity because the Garzas' petition does not state
a viable claim for relief within a waiver of immunity afforded by the Texas Tort Claims
Act.  To determine the trial court's subject matter jurisdiction, we must decide
whether the Garzas alleged a cause of action within the limited waiver provisions of
the Tort Claims Act.

	In their fourth amended petition, the Garzas alleged that their son's death was

proximately caused by the careless, negligent, and reckless disregard of
duties which [TxDOT] owed to the public in general and to [the Garzas
and their son] in particular.  Such disregard of duties consists of, but is
not limited to, the following acts and/or omissions:


Negligent failure to correct the hazardous absence,
condition, or malfunction of traffic or road signs in the
vicinity of Alamo Jr. High School within a reasonable time
after notice of such absence, condition or malfunction. . .
. However, sovereign immunity is waived by Defendant
since Defendant received notice but failed to correct the
absence, condition, or malfunction of a road sign within a
reasonable time.  Pursuant to Sec. 101.025 of the Texas
Tort Claims Act, Waiver of Governmental Immunity;
Permission to Sue, (a) Sovereign immunity to suit is waived
and abolished to the extent of liability created by this
chapter; and (b) A person having a claim under this chapter
may sue a governmental unit for damages allowed by this
chapter.  Therefore, the chapter applies since the
responsible unit, to wit: Defendant, had notice of the
absence, condition, or malfunction of the traffic or road sign
and failed to correct that absence, condition, or malfunction
within a reasonable time after notice.


	In the petition, the Garzas also claimed the following sub-issues related to the
main negligence issue:

(a)	Prior to the incident, failure initially to place or install traffic or road
signs in the vicinity of Alamo Jr. High School designating the area
as a school zone;


(b)	Prior to the incident, failure initially to place or install traffic or road
signs in the vicinity of Alamo Jr. High School setting a reasonable
motor-vehicle speed limit during those times of the day when
students were in route to and from school;


(c)	Failure to inspect the area bordering Alamo Jr. High School to
determine whether appropriate traffic or road signs should be
installed.


(d)	Failure to design and/or construct a reasonably safe public school
environment for the students of Alamo Jr. High School and in
particular for the decedent ROLANDO GARZA. 


	These four sub-issues are exactly what we considered in 1994 in the Garzas'
appeal of the summary judgment.  See Garza, 878 S.W.2d at 673-76.  We concluded
in 1994 that summary judgment was proper as to these claims.  We see no need to
reconsider them in this interlocutory appeal.(2)
	We will now review the Garzas' allegation that TxDOT's immunity was waived
under section 101.060 (a)(2) of the Tort Claims Act because of the condition of the
speed limit sign.  Section 101.060 (a)(2) provides that the Act's waiver of immunity
does not apply to 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.  See Tex.
Civ. Prac. & Rem. Code Ann. § 101.060 (a)(2) (Vernon 1997).

	In their petition, the Garzas allege that although the accident that killed Rolando
"occurred near a public school, no signs were posted in the area designating it a school
zone and setting a reasonable speed limit during those times of the day when students
were in route to and from school."  The Garzas do not allege that the existing signs
were removed or malfunctioned, but rather that the speed limit signs presented a
"condition" that should have been corrected. 

	In Sparkman v. Maxwell, the supreme court defined "condition" as an intentional
or inadvertent state of being and applied the definition to a traffic light that operated
as intended, but endangered the public.  Sparkman v. Maxwell, 519 S.W.2d 852, 857-58 (Tex. 1975).  In City of San Antonio v. Schneider, section 101.060 (a)(2) was
construed as:  "(a)(2) pertains to a sign or warning device that was in place at one
time but was subsequently removed, is malfunctioning or is endowed with some
condition that should be corrected by the governmental unit."  City of San Antonio v.
Schneider, 787 S.W.2d 459, 468 (Tex. App.--San Antonio 1990, writ denied).

	In their brief, the Garzas rely upon our previous opinion in Garza v. State, 878
S.W.2d at 675, for their assertion that TxDOT's immunity is waived because the 45
mph speed limit sign presented a condition.  In our previous opinion, we stated:

the speed limit sign operated as intended but actually endangered the
public or was 'endowed with some condition that should be corrected by
the governmental unit.'  Under normal circumstances, a 45 mph speed
limit sign functions properly and as intended by the State.  However,
under the existing special circumstances created by the recent
construction of Alamo Junior High School, the 45 mph sign may mislead
the public into believing that it is reasonable and safe to drive at this
speed when in actuality it is an excessive speed for this area.  Knowing
this, the 45 mph speed limit sign near a school zone was a condition that
should have been corrected by the State.


Id.
	TxDOT argues that this language is dicta because this Court was deciding only
the narrow issue of whether the State had met its summary judgment burden.  TxDOT
contends the discussion of the condition of the sign was unnecessary to the
conclusion that "the State, which has the burden of proof, failed to adequately
demonstrate that § 101.060 (a)(2) is inapplicable as a matter of law."  Id. at 676; see
Boswell v. Pannell, 180 S.W. 593, 597 (Tex. 1915) (court's mere expression on point
unnecessary to resolution of case does not create binding precedent).  We disagree.

	In determining whether there was a genuine issue of material fact, this Court
looked at the evidence and concluded that the 45 mph sign presented a condition that
should have been corrected.  This conclusion was necessary to the appeal of the
summary judgment and to the case itself, and it creates binding precedent on this
Court.  

	Because we previously concluded "the 45 mph speed limit sign near a school
zone was a condition that should have been corrected by the State," Garza v. State,
878 S.W.2d at 675, we hold TxDOT's immunity from suit has been waived. 
Accordingly, we overrule TxDOT's sole point of error.

	We affirm the trial court's denial of TxDOT's plea to the jurisdiction.


							FEDERICO G. HINOJOSA

							Justice



Do not publish.  Tex. R. App. P. 47.3.


Opinion delivered and filed this 

the 25th day of May, 2000.

1.  We held the trial court properly granted summary judgment on the Garzas' remaining claims:
(a) failure to maintain a highway, (b) failure to hold a public hearing, and (c) failure to notify other
unspecified parties of the need for changed signage in the school area.  See Garza v. State, 878
S.W.2d 671, 676 (Tex. App.--Corpus Christi 1994, no writ) (en banc).
2.  Collateral estoppel precludes a court from considering a specific issue that has been
previously litigated by the same parties in another proceeding.  Bonniwell v. Beech Aircraft Corp., 663
S.W.2d 816, 818 (Tex. 1984).  Repeatedly in its answers, TxDOT stated "Defendant specially excepts
to Plaintiffs' . . . Amended Original Petition as the allegations therein are not limited to the single issue
which was authorized for trial after remand."  See Sysco Food Servs., Inc. v. Trapnell, 890 S.W.2d
796, 802 (Tex. 1994) (As an affirmative defense, collateral estoppel must be pleaded or it is waived.).

