                                                                                     ACCEPTED
                                                                                 01-15-00542-CV
                                                                      FIRST COURT OF APPEALS
                                                                              HOUSTON, TEXAS
                                                                            7/29/2015 8:22:30 PM
                                                                           CHRISTOPHER PRINE
                                                                                          CLERK

                        NO. 01-15-00542CV
                              IN THE
                                                               FILED IN
                                                        1st COURT OF APPEALS
                       COURT OF APPEALS                     HOUSTON, TEXAS
                     FIRST JUDICIAL DISTRICT            7/29/2015 8:22:30 PM
                                                        CHRISTOPHER A. PRINE
                        HOUSTON, TEXAS                          Clerk

__________________________________________________________________
                       BRAZORIA COUNTY
                           Appellant
                                vs.
                    EUGENE ELDRIDGE, ET AL
                             Appellee
__________________________________________________________________
                  ON APPEAL IN CAUSE NO. 69510
   149TH JUDICIAL DISTRICT COURT, BRAZORIA COUNTY, TEXAS
          HONORABLE TERRI HOLDER, JUDGE PRESIDING
__________________________________________________________________

                    BRIEF OF THE APPELLANT
__________________________________________________________________

JERI YENNE                            RAETHELLA JONES
CRIMINAL DISTRICT ATTORNEY            Assistant Criminal District Attorney
BRAZORIA COUNTY, TEXAS                111 E. Locust, Suite 408A
                                      Angleton, Texas 77515
                                      (979) 864-1233
                                      (979) 864-1712 (Fax)
                                      Bar Card No. 75007981
                                      rjones@brazoria-county.com

ATTORNEYS FOR APPELLANT               No Oral Argument Requested
DATE: JULY 29, 2015
                     IDENTITY OF PARTIES & COURSE

APPELLANT:                BRAZORIA COUNTY

Attorney for Appellant at Trial:

             Name:        Raethella Jones
                          Assistant District Attorney
             Address:     Brazoria County Courthouse
                          111 E. Locust, Suite 408A
                          Angleton, Texas 77515
                          (979) 864-1233
                          (979) 864-1712 (Fax)
                          rjones@brazoria-county.com

Attorney for Appellant on Appeal:

             Name:        Raethella Jones
                          Assistant District Attorney
             Address      Brazoria County Courthouse
                          111 E. Locust, Suite 408A
                          Angleton, Texas 77515
                          (979) 864-1233
                          (979) 864-1712 (Fax)
                          rjones@brazoria-county.com

APPELLEE:                 EUGENE ELDRIDGE, ET AL.

Attorney for Appellee at Trial:

             Name:        Savannah Robinson
             Address:     1822 Main
                          Danbury, Texas 77534
                          (979) 922-8825
                          (979) 922-8857 (Fax)




                                        ii
Attorney for Appellee at Appeal:

            Name:       Savannah Robinson
            Address:    1822 Main
                        Danbury, Texas 77534
                        (979) 922-8825
                        (979) 922-8857 (Fax)




                                     iii
                                         TABLE OF CONTENTS


IDENTITY OF PARTIES AND COURSE ......................................................... ii, iii
TABLE OF CONTENTS ..........................................................................................iv
RECORD REFERENCES .........................................................................................v
TABLE OF AUTHORITIES .............................................................................. vi,vii
STATEMENT OF THE CASE ................................................................................. 1
ISSUES PRESENTED...............................................................................................1
I. STATEMENT OF FACTS .....................................................................................1
  (A) Introduction ......................................................................................................1
  (B) Factual Background ..........................................................................................3
        (1) The Advance Funding Agreement .............................................................. 3
        (2) Plaintiff’s Evidence .....................................................................................5
II. SUMMARY OF THE ARGUMENT.................................................................... 7
III. ARGUMENT .......................................................................................................8
  (A) Standard of Review ..........................................................................................8
  (B) Duty of the County .........................................................................................10
  (C) Control of the Premises Determines Duty......................................................11
CONCLUSION ........................................................................................................15
CERTIFICATE OF COMPLIANCE .......................................................................16
CERTIFICATE OF SERVICE ................................................................................16




                                                           iv
                      RECORD REFERENCES


     The Record citing convention contained below is used throughout
Appellant’s Brief.

CR.___    CLERK’S RECORD




                                 v
                                   TABLE OF AUTHORITIES

CASES

Rodriguez v. Carson,
519 S.W.2d 214, 216 (Tex.Civ.App.- Amarillo 1975, writ ref’d n.r.e.)........ 3,7,9,10

Harris County v. Sykes,
136 S.W.3d 635, 638(Tex.2004)................................................................................7

Bland Independent School District v. Blue,
34 S.W.3d 547, 554(Tex.2000)..................................................................................7

Oncor Elec. Delivery Co., LLC v. Murillo,
449 S.W.3d 583, Tex.App.- Houston [1 Dist.], 2014) ...............................................8

Texas Department of Parks & Wildlife v. Miranda,
113 S.W.3d 217, 226(Tex.2004)................................................................................9

City of El Paso v. Mazie’s L.P.,
408 S.W.3d 13, 18(Tex.App.- El Paso 2012, pet denied)..........................................9

Walker v. Packer,
827 S.W.2d 833, 837(Tex 1992)................................................................................9

El Chico Corp. v. Poole,
732 S.W.2d 306, 311(Tex.1987)..............................................................................10


Rodriguez v. Ed Hicks Imports,
767 S.W.2d 187, 192 (Tex. App.- Corpus Christi 1989, no writ) ...........................10

Coleman v. Hudson Gas and Oil Corp,
455 S.W.2d 701(Tex.1970) ......................................................................................10

Redinger v. Living Inc.,
689 S.W.2d at 415, 417 (Tex 1985) .........................................................................12

Sem v. State,
821 S.W.2d 411, 414-15 (Tex.App.- Fort Worth 1991, no writ) ............................12
                                                       vi
Chevron U.S. A., Inc. v. Lara,
786 S.W.2d 48, 49(Tex.App.- El Paso 1990, writ denied) ......................................12

Cnty. of Cameron v. Brown,
80 S.W.3d 549,556 (Tex 2002)................................................................................12

City of Denton v. Van Page,
701 S. W.2d 831, 835 (Tex 1986)............................................................................12

Dow Chem. Co. v. Bright,
89 S.W.3d 602, 606 (Tex.2002)...............................................................................13

Olivarez v. Brown & Gay Eng’g, Inc.,
401 S.W.3d 363, 367-69 (Tex.App.- Houston [14th Dist.] 2013, no pet.) ...............13

Entergy Gulf States, Inc. v. Isom,
143 S.W.3d 486, 489-90 (Tex.App. – Beaumont 2004, pet. denied) ......................14

Roberts v. Friendswood Dev. Co.,
886 S.W.2d 363,367 (Tex.App.- Houston [1st Dist]1994,writ denied) ...................14


STATE STATUTES

Tex. Civ.Prac. & Rem.Code § 101.021 ..................................................................3,7

Tex. Tran. Code §§ 201.103 and 222.052 .................................................................3

FEDERAL STATUTES

Title 23 USC §144 .....................................................................................................3

SECONDARY AUTHORITY

Restatement (Second) Torts §328e (1965) .............................................................6,8




                                                          vii
                          STATEMENT OF THE CASE

      This is an interlocutory appeal from the trial court’s denial of Appellant,

Brazoria County’s, Plea to the Jurisdiction.


                               ISSUE PRESENTED

 1.   Did the trial court err in denying Brazoria County’s plea to the jurisdiction in

a premises liability claim when the County was not the legal possessor of the

premises at the time of the incident giving rise to the claim.


I.    STATEMENT OF FACTS

      A.    Introduction

      On or about 4:00 A.M. on April 23, 2012, Eugene Eldridge as driver and

 Raymond Perry as passenger, were traveling along CR 128 in Brazoria County.

 Also occurring on the same road during this period of time was the Texas

 Department of Transportation’s (TxDOT) reconstruction of a bridge. Mr. Eldridge

 alleges that he did not see the warning signs posted by TxDOT and he drove off

 the road into an adjacent ditch in order to avoid driving into the gap created by the

 removal of the bridge.

      On September 6, 2012, Eldridge and Perry filed suit naming only against

 Brazoria County (“the County”) as a defendant. Moreover, they did not allege the

 County was the legal owner or possessor of the property. They simply claimed,


                                           1
           without any assertion or identification of who the property owner was, that

    the County had been negligent in placing or replacing signs that warned of the

    bridge’s construction. Further Plaintiffs asserted that this was a premises/special

    defect since the claim arose as a result of a defect in real property After some brief

    discovery, the County filed a plea to the jurisdiction asserting that the alleged

    property damage and injuries did not arise from an act or omission of negligence

    of a County employee acting within the scope of their employment. The trial court

    granted the plea; however, the appellate court reversed the trial court’s ruling,

    finding that employee involvement was not an element of a premises liability

    claim. The appellate court also noted that they were not implying or deciding that

    the County could not successfully raise future jurisdictional challenges to

    Appellants’1 claims. CR. 75.

           On March 16, 2015, the County filed a second Plea to the Jurisdiction

    asserting that at the time of the incident in question; the County did not have legal

    ownership, nor was it a possessor of the property giving rise to the alleged injury.

    Moreover, the County asserted that since it was not the legal possessor/owner of

    the property at the time of the incident in question, it had no duty to plaintiffs.

    That duty lay with the legal owner/possessor, The State of Texas CR. 11.




1
    Eldridge and Perry were Appellants in the 2014 appeal.

                                                             2
      Plaintiffs responded to the Plea to the Jurisdiction asserting that premises

liability is based on an owner’s failure to take measures to make the property safe

CR. 52. The court held a hearing; however, no testimony was taken nor was the

hearing recorded. CR. 84. The Court later issued an order denying the Plea to the

Jurisdiction. CR. 75.

      This case is governed by TEX. CIV. PRAC. & REM.CODE § 101.021

(CPRC) referred to hereinafter as the Texas Tort Claims Act (“The Act”). The

Act creates governmental liability when the personal injury is caused by a

condition or use or tangible or real property if the governmental unit would, were

it a private person, be held liable under Texas law. Id. For a private person to have

a right of recovery, under Texas law, it is fundamental that a legal duty of some

character was owed to the individual seeking recovery. Rodriguez v. Carson, 519

S.W.2d 214, 216 (Tex.Civ.App.—Amarillo 1975, writ ref'd n.r.e.).

      B.   FACTUAL BACKGROUND

           1. The Advance Funding Agreement

      The State under the authority of TEX. TRAN. CODE §§ 201.103 and

222.052 establishes the plans and policies for the construction of a comprehensive

system of state highways and public roads in cooperation with local governments.

The funding for the State to implement these plans and policies is authorized by

Title 23 USC §144. As the bridges and highways within the off-state federal-aid

                                         3
system need replacement or rehabilitation, the State enters into agreements with

local agreements for such work. Under the Highway Bridge Replacement and

Rehabilitation Program, the Texas Transportation Commission by Order number

110109, dated June 30, 2005 authorized the state to enter into an Advanced

Funding Agreement (“Agreement”) with Brazoria County, whereby the bridge

located on CR 128 would be replaced by the State. CR. 19.

      The express provisions of the Agreement stated the effective period of the

Agreement was from the date signed, October 21, 2005, until terminated, October

11, 2012, when under the terms of the Agreement, the County issued a Notice of

Acceptance of the bridge. CR 29, 40.

      Under the terms of the Agreement, the State assumed all construction

responsibilities including advertising for construction bids, awarding and

administering the contract as well as traffic control through detour plans and

signage. CR. 22¶11, 45-47. Only upon completion of the project was the County

allowed to accept full ownership and operate and maintain the facility. CR. 22 ¶12

      Explicit in the Agreement were terms that no party is an agent, servant, or

employee of the other and each party agrees it is responsible for its individual acts

and deeds. CR. 25 ¶16.

      The exact date the State begin replacing the bridge is unknown to the County

because under the terms of the Agreement, the State had taken custody and control


                                         4
of the project and the premises.      The only information the County received

regarding construction was a notice, dated March 23, 2010, from the State to the

County’s engineer that “the contract for the bridges (sic) is expected to be let in

July 2010. A construction schedule and traffic detour layouts are attached for your

use”. CR. 41.

      It was clearly evident that the State controlled and occupied the premises

and was the possessor of the land for the purpose of defining a legal duty in tort;

therefore, the County cannot be a liable tortfeasor.

      2. Plaintiffs’ Evidence

      Plaintiffs attached to their petition an affidavit of an individual who lived

adjacent to the area where the alleged accident occurred and who had observed the

construction as well as communicated with the construction engineer/supervisor

during the project. This individual stated that he had “several conversations with

the construction company and the TxDOT supervisor”. He informed them about

the other detour signs on the north and south directions of Hwy. 35 as well as those

along CR 99. He also stated that “once the road was closed, the company

(emphasis added) placed flashing lights to show traffic the bridge was out”.

Plaintiffs’ witness specifically names, Rozco Contracting Company, assistant vice

president, Martin Gottselig and TxDOT representative, Jared Williams, as the

individuals he spoke to “many times” about traffic concerns and signs. Noticeably

                                          5
absent was any reference to any County agent, employee or representative. CR. 48,

49.

      Plaintiffs also allege that “Exhibit A, behind page 12, page 3 of 3, paragraph

three” of the Agreement states that the County agreed to be responsible for the

bridge construction. CR. 34. That assertion is a mischaracterization of what the

paragraph actually says. The paragraph actually reads “ THEREFORE BE IT

RESOLVED that the Local Government perform, or cause to be performed the

following equivalent match projects (emphasis added) in return for waiver of the

local match fund participation requirement on the approved federal off-system

bridge program (participation waived) project not yet awarded. CR 34 ¶1. Further,

the paragraph Plaintiff cites to expressly states, “In performing, or causing to be

performed, the equivalent match project(s) the Local Government assumes all

responsibility for engineering…” CR 34, ¶3. The responsibility the County was

assuming was for the match project not the project on CR 128. The evidence

Plaintiffs attach to their pleading to support the alleged accident occurred due to

the fact that the County placed inadequate warning signs in facts reinforces the

County’s position that they were not the legal possessors at the time of the

accident. Liability can only be attributed to the County if they had a duty as an

owner, defined as legal possessor of the premises. RESTATEMENT (SECOND)

TORTS § 328E (1965).


                                         6
                     II.    SUMMARY OF THE ARGUMENT

      Absent narrow exceptions carved out by The Act, a governmental entity

retains immunity from suit. CPRC§ 101.021. One such exception is found in

CPRC §101.021(2) wherein a governmental entity may be held liable for personal

injury caused by a condition or use of tangible personal or real property, if the

governmental unit would, were it a private person, be held liable under Texas law.

When a suit against a governmental entity is filed that does not fall within the

exception of CPRC §101.021(2); the governmental entity must file a plea to the

jurisdiction to challenge the court’s authority to determine the subject matter of the

filed action. Harris County v. Sykes, 136 S.W.3d 635, 638 (Tex.2004); Bland

Independent School District v. Blue, 34 S.W.3d 547, 554 (Tex.2000). The County

challenged the trial court’s jurisdiction asserting that although Plaintiffs alleged an

injury caused by real property, the County would not, under Texas law, be liable

were it a private person. CR.11. For liability to attach, the Plaintiff would have

had to have sustained an injury due to the conduct of the County founded upon

some legal duty of the County to the Plaintiff. Rodriguez v. Carson, 519 S.W.2d

214, 216 (Tex.Civ.App.—Amarillo 1975, writ ref'd n.r.e.). In the present case, the

Plaintiffs allege they suffered personal injuries because the County was negligent

in placing adequate signs warning of bridge reconstruction. They never allege that

the property in question was owned or possessed by the County thus giving rise to

                                          7
a duty by the County to place warning signs. They simply assert, although

contradicted by their witnesses’ affidavit, that the County placed warning signs;

therefore when those signs were lost or destroyed, it was the duty of the County to

replace them. CR. 7,8; ¶1,2,3. The duty to act, in this case, place warning signs,

would be the responsibility of the possessor of the land. Oncor Elec. Delivery Co.,

LLC v. Murillo 449 S.W.3d 583, Tex.App.–Houston [1 Dist.], 2014.

      If by implication, Plaintiffs are asserting that the County held legal title to

the property; therefore they are the possessor of the property; this assertion is not

supported by case law. The question of legal title for real property purposes does

not define whether a possessor of property has a legal duty to answer in tort for

premises defects it creates. The important thing in the law of torts is the possession

and not whether it is or is not rightful between the possessor and some third

person. Id., RESTATEMENT (SECOND) TORTS § 328E (1965).

         Although the State was the legal possessor of the land and the State placed

and exercised control over the warning signs thus creating the existence and

violation of a duty to Plaintiffs on the State, the trial court denied, the County’s

plea to the jurisdiction.

                                 III.   ARGUMENT

A.         Standard of Review




                                          8
         The standard of review is abuse of discretion.          Whether undisputed

evidence of jurisdictional facts establishes a trial court's jurisdiction is a question

of law subject to de novo review. Miranda, 183 S.W.3d at 224. Moreover, whether

or not a legal duty does exist under a given state of facts and circumstances is

essentially a question of law to be determined by the court. Rodriguez v. Carson at

216.   Further a determination whether a party has alleged facts that affirmatively

demonstrate a trial court’s subject matter jurisdiction is a question of law which is

subject to de novo review. Texas Department of Parks & Wildlife v. Miranda, 133

S.W.3d 217, 226 (Tex.2004); City of El Paso v. Mazie's, L.P., 408 S.W.3d 13, 18

(Tex.App.-El Paso 2012, pet. denied). A trial court has no “discretion” in

determining what the law is or applying the law to the facts. Thus, a clear failure

by the trial court to analyze or apply the law correctly will constitute an abuse of

discretion. Walker v. Packer, 827 S.W.2d 833, 837 (Tex.1992).

         Even when construing the Plaintiffs’ pleading liberally in favor

jurisdiction, there exists undisputed evidence of jurisdictional facts that TxDOT

was the possessor of the property; therefore, any duty to Plaintiffs was the

responsibility of TxDOT. Further, when examining the evidence offered by

Plaintiffs, TxDOT managed, controlled, and had custody of the premises at all

times incident to the alleged accident. The trial court therefore abused its discretion

in denying the County’s Plea to the Jurisdiction.


                                          9
B.    Duty of the County

        It is fundamental that the right of recovery for an injury sustained by a

plaintiff as a result of the conduct of a defendant be founded upon a legal duty of

some character owed to the plaintiff and a violation of that duty by the defendant.

Rodriguez v. Carson, at 216. The three elements of actionable negligence are: (1) a

legal duty owed by one person to another; (2) a breach of that duty; and (3)

damage proximately resulting from such breach. Each of the elements must coexist

in order that there can be any recovery. El Chico Corp. v. Poole, 732 S.W.2d 306,

311 (Tex.1987); Rodriguez v. Ed Hicks Imports, 767 S.W.2d 187, 192 (Tex.App.—

Corpus Christi 1989, no writ). A plaintiff must prove the existence and violation

of a legal duty owed to him by the defendant to establish tort liability. Coleman v.

Hudson Gas and Oil Corp., 455 S.W.2d 701 (Tex.1970). Step one in establishing

the existence of a legal duty in Plaintiffs’ premises liability claim is the

determination of who the legal possessor of the premises is. Plaintiffs never allege

or offer any evidence that the County was the legal owner or possessor of the

property in question. The premise of their negligence claim is found in their

Second Amended Original Petition; wherein they allege:

        The County posted warning signs for the hazardous condition posed

        by the missing bridge. On April 20, 12, the area experienced severe

        storms, with gusting winds. All warning signs were blown over, or

                                        10
         lost in the storm.    The County was notified of the dangerous

         condition posed by the bridge being removed, and the absence of

         warning signs… The negligence of the Defendants consisted

         of...carelessly and negligently failing to provide any warning of the

         hazardous condition…failing to replace road signs and warning

         devices after notice and a reasonable time.

Plaintiffs completely disregard who the legal possessor of the premises is and

move straight to the assumption that it was the County. Based on that assumption,

they presume the County had, prior to the incident, posted warning signs. They

make this assertion in spite of the fact their witnesses’ statement expressly

identified TxDOT or the construction company contracted by TxDOT as the entity

who placed the warning signs. CR. 48, 49. Further support of Plaintiffs’ witness

statement, that TxDOT placed the warning signs, is found in the documents

provided by, TxDOT. Specifically the “Detour and Traffic Control Plans”, which

identify TxDOT as the author of the plans and the Agreement whereby TxDOT

assumed all responsibility for the construction responsibilities. The County does

not accept full ownership and operate and maintain the facility until the project has

been completed, it is obvious that TxDOT, not the County was the legal possessor

of the premises and any duty of care lay with TxDOT. CR. 45-47; 22, ¶¶11, 12

C.      Control of the Premises Determines Duty


                                         11
      Who controls the premises is the essential question in determining who owes

the duty to warn or make safe. This duty only arises; however, for an occupier with

control of the premises. See Redinger v. Living, 689 S.W.2d at 415, 417; Sem v.

State, 821 S.W.2d 411, 414–15 (Tex.App.—Fort Worth 1991, no writ); Chevron

U.S.A., Inc. v. Lara, 786 S.W.2d 48, 49 (Tex.App.—El Paso 1990, writ denied).

“[a] premises-liability defendant may be held liable for a dangerous condition on

the property if it ‘assum[ed] control over and responsibility for the premises,’ even

if it did not own or physically occupy the property.” Cnty. of Cameron v. Brown,

80 S.W.3d 549, 556 (Tex.2002) (concluding that, for purposes of premises-liability

claim, county assumed sufficient control over state-owned causeway because it had

maintenance contract with state that included responsibilities over causeway's

streetlight system) (quoting City of Denton v. Van Page, 701 S.W.2d 831, 835

(Tex.1986)).    The facts of this case are analogous to Brown, In that case, the

State held legal title to the section of the roadway where the accident occurred;

however, the Court found Cameron County assumed sufficient control over the

part of the premises that presented the alleged danger such that Cameron County

had a duty to remedy it. In the current case, even if the Plaintiffs had alleged that

the County held legal title to the premises at the time of the alleged incident, the

State, operating through TxDOT, assumed control over the part of the roadway that

presented the alleged danger.     The elements of control can be proven by a


                                         12
contractual agreement assigning a right of control or evidence of actual control

Dow Chem. Co. v. Bright, 89 S.W.3d 602, 606 (Tex.2002); see also Olivares v.

Brown & Gay Eng'g, Inc., 401 S.W.3d 363, 367–69 (Tex.App.-Houston [14th

Dist.] 2013, no. pet.). The Funding Agreement entered into between TXDOT and

the County state the following: “the State, defined in the agreement as, the State of

Texas acting by and through the Texas Department of Transportation, will be

responsible for all construction responsibilities from construction bids through

construction completion; “ownership of the project does not pass to the Local

Government [Brazoria County] until the project has been completed and the

County accepts full ownership”. CR. 22 ¶¶11, 12. The contractual language clearly

establishes that TxDOT assumed control over the premises. Further evidence of the

County’s lack of control of the premises is established by its Notice of Acceptance

of the project dated, October 12, 2012. CR. 40. The County would not need to

accept a project it had possession and control of. Additionally, TxDOT, developed

the construction plan as well as the traffic control plan for the bridge at CR 128.

TxDOT provided the County a copy of its construction and detour plans; however,

as identified clearly on the plans, those belong to and were developed for use by

TxDOT. CR. 45-47. These plans confirm the statement in the Funding Agreement

that TxDOT will be responsible for all construction responsibilities; [this included

the placement of any warning signs]. The statement of plaintiffs’ witness that he


                                         13
had conversations with the construction company, hired by TxDOT and with the

TxDOT supervisor regarding the placement of the signs and the signs being blown

down by the wind further evidences the control of the premise by TxDOT. The

witness, never identifies or even implies that he ever saw or spoke with any

representative for the County, only those for TxDOT. CR. 48,49.

            As further evidence of the County’s physical absence and lack of control

of the premises, the County attached to its plea to the jurisdiction, the affidavit of

Assistant County Engineer, Michael Shannon 2, who stated that the County did not

participate in any manner in the demolition/reconstruction of the bridge nor in the

placement of any signage. Further, Mr. Shannon’s , statement that the County did

not receive any notices or complaints regarding warning signs in the

construction/demolition area during the relevant time period supports Plaintiffs’

witness statement that he complained to TxDOT representatives. CR. 50-51; 48-49

“The relevant inquiry is whether the defendant assumed sufficient control over the

part of the premises that presented the alleged danger such that the defendant had

the responsibility to remedy it.” see Entergy Gulf States, Inc. v. Isom, 143 S.W.3d

486, 489–90 (Tex.App.-Beaumont 2004, pet. denied) (analyzing case in which

injury occurred from unmarked guy wire on utility company's right-of-way as

premises-liability claim); Roberts v. Friendswood Dev. Co., 886 S.W.2d 363, 367
2
  The County Engineer at the time of the incident had retired and was not available; however, the Assistant County
Engineer was in that position at the time of the incident and as a part of his duties participated in or was aware of
the day to day activities of the Engineer’s office.

                                                          14
(Tex.App.-Houston [1st Dist.] 1994, writ denied) (observing that easement holder

has duty to use ordinary care regarding use and maintenance of easement). It is

sufficiently clear from the contractual agreement, conduct of the parties, witness

statements and the affidavit of the assistant county engineer that TxDOT assumed

control of the premises; therefore, any duty under a negligence premises defect

theory belonged to TxDOT.

                                  CONCLUSION

      The County requests that this Court hold that the trial court erred in denying

the County’s plea to the jurisdiction.

      Further, the County requests such other relief to which it may be entitled.

                                 Respectfully submitted,


                                 JERI YENNE
                                 CRIMINAL DISTRICT ATTORNEY
                                 BRAZORIA COUNTY, TEXAS
                                 SBN 04240950

                                 /s/ Raethella Jones________
                                 by:RAETHELLA JONES
                                 Assistant District Attorney
                                 SBN 75007981
                                 111 East Locust, Suite 408A
                                 Angleton, Texas 77515
                                 (979) 864-1233
                                 (979) 864-1712 (Fax)
                                 ATTORNEYS FOR THE APPELLANT




                                         15
                     CERTIFICATE OF COMPLIANCE

      I hereby certify that Appellant Brief, as calculated under Appellate Rule

9.4(i), contains 3,476 words as determined by the Word program used to prepare

this document.



                                              /s/ Raethella Jones _____
                                              RAETHELLA JONES



                        CERTIFICATE OF SERVICE

      The undersigned Attorney for the Appellant certifies that a true copy of this

motion was served in compliance with Article 9.5 of the Rules of Appellate

procedure on Savannah Robinson, attorney for the Appellee, by email to

savannahrobinson@gmail.com this 29th day of July 2015.




                                              /s/ Raethella Jones
                                             RAETHELLA JONES




                                        16
