
In The


Court of Appeals


Ninth District of Texas at Beaumont


____________________


NO. 09-04-069 CV

____________________


TEXAS DEPARTMENT OF TRANSPORTATION, Appellant


V.


CURTIS TOMMY PHILLIPS AND MISTY PHILLIPS 

individually and as next friend of their minor children, Appellees




On Appeal from the 253rd District Court
Liberty County, Texas

Trial Cause No. 65847




O P I N I O N
 Appellees, Curtis Tommy Phillips and Misty Phillips, individually and on behalf of
their minor children, sued the Texas Department of Transportation ("TxDOT") regarding
injuries Curtis Tommy Phillips received in a motor vehicle accident.  The trial court denied
TxDOT's plea to the jurisdiction, and TxDOT appeals, claiming the sovereign immunity
doctrine bars appellees' claims.  We agree and therefore will reverse the trial court's decision
and dismiss the appellees' claims for want of jurisdiction. 
	Phillips's truck was struck from behind as he was making a left turn at a crossover on
Highway 59 in Liberty County, Texas.  As there was no left turn lane, Phillips was turning
from the inside traffic lane.  Phillips maintains a special defect existed where his accident
occurred and that the State has no immunity for special defect claims.  He contends the State
had a duty either to eliminate the defect by constructing a left turn lane where his accident
occurred or to give adequate warning of the danger by providing a warning sign on the left
side of the left lane well in advance of the crossover.  In addition to other design and safety
feature allegations, Phillips also asserts TxDOT negligently failed  to lower the speed limit
for traffic approaching the crossover and to reasonably provide for the safety of those in
vehicles exiting the highway at the crossover. 
	Phillips is correct that the State's immunity is waived regarding its duty to warn of
special defects.  See Tex. Civ. Prac. & Rem. Code Ann. § 101.060(c)(Vernon 1997).  But
the absences of a turn lane and safety devices such as warning signs or signals are not special
defects.  Special defects are conditions such as excavations or obstructions that unexpectedly
and physically impair a vehicle's ability to travel on the roadway and present unusual or
unexpected dangers to ordinary drivers.  See State Dep't of Highways & Pub. Transp. v.
Payne, 838 S.W.2d 235, 238 (Tex.1992) (op. on reh'g); see also State v. Rodriguez, 985
S.W.2d 83, 85 (Tex. 1999); Tex. Civ. Prac. & Rem. Code Ann. § 101.060(c).  Special
defects are distinguished by unusual qualities and are "outside the ordinary course of events."
Graham v. Tyler County, 983 S.W.2d 882, 884 (Tex. App.--Beaumont 1998, no pet.)
(quoting Harris County v. Smoker, 934 S.W.2d 714, 718 (Tex. App.--Houston [1st Dist.]
1996, writ denied).  Conditions that are "longstanding, routine, or permanent" are not special
defects.  Id.  Here, the lack of a left turn lane is a condition that is "longstanding, routine, or
permanent," and as such is not a special defect that would trigger the Texas Tort Claims
Act's waiver of sovereign immunity.  See Tex. Civ. Prac. & Rem. Code Ann. §§
101.025(b), 101.060(c) (Vernon 1997).  
	The State retains its immunity for claims based on its discretionary acts and omissions.
Texas Dep't of Transp. v. Garza, 70 S.W.3d 802, 806 (Tex. 2002); Tex. Civ. Prac. & Rem.
Code Ann. § 101.056 (Vernon 1997). According to both case law and statutory authority,
the design of roadways as well as the initial installation of safety features, such as signs or
signals, are discretionary functions, and the State cannot be liable for such design or safety
considerations.  See, e.g., State v. Miguel, 2 S.W.3d 249, 250-51 (Tex. 1999); Rodriguez, 985
S.W.2d at 85; Tex. Civ. Prac. & Rem. Code Ann. §§ 101.056, 101.060(a)(1) (Vernon
1997).  Further, TxDOT retains immunity regarding its decisions on speed limits as such 
clearly are discretionary acts.  See  Tex. Civ. Prac. & Rem. Code § 101.056 (Vernon 1997). 
TxDOT also retains immunity for Phillips's general allegation that TxDOT failed to make
the location safer.  "The State preserves its immunity for formulating policy because it is a
discretionary act.  Decisions about highway design and about what type of safety features to
install are discretionary policy decisions.  A court should not second-guess a governmental
unit's decision about the type of marker or safety device that is the most appropriate." 
Miguel, 2 S.W.3d at 251 (citations omitted).
	We sustain TxDOT's first issue contending it has sovereign immunity, and need not
consider its second issue.  We find the trial court erred in denying TxDOT's plea to the
jurisdiction.  The trial court's ruling is reversed, and judgment is rendered dismissing the
case for lack of jurisdiction.
	DISMISSED FOR WANT OF JURISDICTION.
								PER CURIAM

Submitted on September 23, 2004
Opinion Delivered November 18, 2004


Before McKeithen, C.J., Burgess and Gaultney, JJ.
