                            NUMBER 13-06-00377-CV

                            COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                    CORPUS CHRISTI - EDINBURG


ROSA HERNANDEZ,                                                            Appellant,

v.

CITY OF MCALLEN,                                                           Appellee.


     On appeal from the 92nd District Court of Hidalgo County, Texas.


                         MEMORANDUM OPINION

                Before Justices Yañez, Rodriguez, and Garza
                  Memorandum Opinion by Justice Yañez

       Appellant, Rosa Hernandez, challenges the trial court’s dismissal of her lawsuit

against appellee, the City of McAllen (“the City”). We affirm.

                                    I. Background

       Appellant sued the City, alleging theories of premises defect and special defect.
Appellant’s claims arose from injuries sustained when she stepped onto a concrete

drainage box cover, which gave way, causing her to fall into the drainage box. In February

2004, the City filed a plea to the jurisdiction, contending that it was entitled to sovereign

immunity because the City’s alleged negligent acts concerning the design and construction

of the drainage box cover are discretionary acts.1 The trial court denied the City’s plea.

The City appealed; this Court sustained the City’s issue and reversed and remanded,

holding that the City’s immunity had not been waived because the design of the drainage

box and the implementation of drainage cover were discretionary acts.2 On remand, the

City filed a motion to dismiss, noting that this Court’s opinion was dispositive and the Texas

Supreme Court had denied review.

         Hernandez filed an amended petition, in which she attempted to recharacterize her

claims as negligent implementation of the City’s policy and negligent maintenance of the

drainage box cover. At a hearing on the motion to dismiss, the City argued that this Court’s

prior opinion is dispositive of Hernandez’s claims because it held that implementation of

the drainage box cover was also a discretionary act.3 On March 30, 2006, the trial court

granted the City’s motion to dismiss. This appeal ensued.

                                              II. Discussion

        Hernandez contends the trial court erred in dismissing her case because it failed to

distinguish between discretionary actions taken at the policy-making level and actions


        1
         See T EX . C IV . P RAC . & R EM . C OD E A N N . § 101.056(2) (Vernon 2005) (providing that claim s based
on the perform ance or nonperform ance of an act left to the discretion of a governm ental unit are exem pted
from the waiver of im m unity under the Tort Claim s Act).

        2
        City of McAllen v. Hernandez, No. 13-04-182-CV, 2005 Tex. App. LEXIS 6786, at *19 (Tex.
App.–Corpus Christi Aug. 22, 2005, pet. denied) (m em . op.).

        3
            See id.
                                                        2
taken in the implementation of policy. In its brief, the City argues:

               There is nothing new in this appeal except for the Plaintiff/Appellant’s
         attempt to recharacterize the cause of action into a “negligent
         implementation of policy” cause of action. . . .

                 The true nature of Plaintiff/Appellant’s appeal is to ask the new panel
         of this Court to find that the prior panel of Justices who decided this case
         was wrong. Her arguments have already been considered by this Court, and
         this Court has already held that Mr. Tabor’s[4] decision to redesign that
         particular inlet was a discretionary act, and that his redesign of the lid was
         also a discretionary act. The Plaintiff/Appellant just will not accept this
         Court’s decision.

         In this Court’s prior opinion, we stated:

         Whether an act is discretionary is a question of law. Under section 101.056,
         claims based on the performance or nonperformance of an act left to the
         discretion of the governmental unit are exempted from the waiver of
         immunity under the Act. An act is discretionary if it requires exercising
         judgment and the law does not dictate performing the act with such precision
         that nothing is left to discretion or judgment. Immunity is not waived in
         premises defect suits based on discretionary acts. Design decisions are
         considered discretionary acts.

         A governmental entity's discretion in the design of roadways is protected
         from liability by section 101.056(2) of the Tort Claims Act. The design of a
         roadway drainage system is likewise a discretionary act. The decision
         whether or not to put safety features such as barriers and guardrails in place
         is also a discretionary decision.

         4. Conclusion

         The drainage box in question constituted part of the City's drainage system,
         which in turn is part of the City's road system, the design of which constitutes
         a discretionary act. As the design was a discretionary act, the City's
         immunity has not been waived in this instance. The implementation of the
         drainage cover was also a discretionary action on the part of the City. As
         such, the City's immunity has also not been waived in this instance.5

         4
         The reference is to Jam es Tabor, then m anager of the Streets and Drainage Departm ent for the City
of McAllen.

         5
             Hernandez, 2005 Tex. App. LEXIS 6786 at **18-19 (em phasis added) (citations and footnotes
om itted).
                                                     3
       We agree with the City that our prior opinion rejected appellant’s claim of “negligent

implementation” of the City’s policy. We decline to depart from our prior holding.

       The City has also filed with this Court a “Motion to Dismiss and for Sanctions,”

arguing that this Court should sanction appellant and her attorneys in the amount of $3,500

“for the costs the City has had to incur in the continued litigation of this case after this

Court’s mandate.”6 The City’s motion contends that “[t]his is obviously a frivolous appeal”

that has “caused an unnecessary expense of tax dollars in the City’s defense.” The City

does not cite to any rule or other authority in support of its request for sanctions. We deny

the City’s request for sanctions as inadequately briefed.7

                                              III. Conclusion

       We affirm the trial court’s order dismissing appellant’s suit. We deny the City’s

request for sanctions, and otherwise deny the City’s motions to dismiss as moot.




                                                             _________________________
                                                             LINDA REYNA YAÑEZ,
                                                             Justice




Memorandum Opinion delivered and
filed this the 31st day of July, 2008.




       6
           The City also filed a second m otion to dism iss, requesting dism issal and recovery of its costs.

       7
           See T EX . R. A PP . P. 38.1(h).



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