                                   NO. 12-19-00260-CV

                           IN THE COURT OF APPEALS

               TWELFTH COURT OF APPEALS DISTRICT

                                      TYLER, TEXAS

 TEXAS DEPARTMENT OF                                §      APPEAL FROM THE 7TH
 TRANSPORTATION,
 APPELLANT

 V.                                                 §      JUDICIAL DISTRICT COURT

 DANA PIERCE,
 APPELLEE                                           §      SMITH COUNTY, TEXAS

                                   MEMORANDUM OPINION
       Texas Department of Transportation (TxDOT) appeals from the denial of its plea to the
jurisdiction in which it asserted sovereign immunity and requested dismissal of Dana Pierce’s
personal injury lawsuit. In two issues, TxDOT contends the road condition at issue did not
constitute a special defect, there is no evidence that TxDOT had actual knowledge of a premises
defect, and the condition did not pose an unreasonable risk of harm. We reverse the trial court’s
order and render judgment dismissing Pierce’s suit for lack of jurisdiction.


                                           BACKGROUND
       Pierce filed a lawsuit against TxDOT alleging that she was a passenger in a vehicle that
encountered “several significant, deep holes and/or excavations” as the vehicle was leaving a
private business frequented by semi-trailer trucks, traveling from that business’s driveway, and
entering onto U.S. Highway 271, property owned and controlled by TxDOT. Asserting causes of
action for premises defect and special defect, Pierce alleged that she suffered personal injuries
caused by a condition or use of the property and that TxDOT’s immunity is waived.
       TxDOT filed a plea to the jurisdiction arguing that Pierce has not shown waiver of sovereign
immunity and requesting dismissal of the suit. TxDOT asserted that the condition complained of
is a “common pothole” and, therefore, as a matter of law, it is not a special defect. It further argued
that no evidence exists to show TxDOT had actual knowledge of the condition, as required to find
liability for injuries caused by an ordinary premises defect. TxDOT supported its plea with
photographs, climatological data, Google Maps aerial photographs, and Google Maps
measurements of the driveway.
          The trial court denied the plea to the jurisdiction and TxDOT initiated this interlocutory
appeal.


                                     PLEA TO THE JURISDICTION
          In its first issue, TxDOT asserts that Pierce’s claims should be dismissed because the
complained-of road condition is not a special defect, but rather, is a patch of abraded pavement
containing depressions and a common pothole. TxDOT acknowledges that, in the photographs,
the depth of the depression or hole is not ascertainable because it is filled with rainwater. It then
asserts that portions of the black asphalt pavement can be seen just beneath the surface in places,
indicating a shallow depth. It also argues that the condition, which is on the fringe of the highway’s
shoulder, does not impair ordinary users of the roadway and could have been avoided by using the
business’s other driveway. TxDOT goes on to argue that, without a special defect finding, Pierce
must show that TxDOT actually knew of the dangerous condition at the time of the accident, which
she has not done. Therefore, TxDOT argues, it has not waived immunity for the premises defect
claim.
Standard of Review
          Subject matter jurisdiction is essential to the authority of a court to decide a case. Tex.
Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 443 (Tex. 1993). Whether a court has
subject matter jurisdiction is a question of law. Tex. Dep’t of Parks & Wildlife v. Miranda, 133
S.W.3d 217, 226 (Tex. 2004). Absent the State’s consent to suit, a trial court lacks subject matter
jurisdiction in a suit against the State. Tex. Dep’t of Transp. v. Jones, 8 S.W.3d 636, 638 (Tex.
1999) (per curiam). Pleadings in a suit against a governmental unit must affirmatively demonstrate,
either by reference to a statute or express legislative permission, that the legislature consented to
the suit. Id. If a party believes that the plaintiff’s petition does not show jurisdiction and cannot
be amended to allege jurisdiction, the party may file a plea to the jurisdiction at any time. Starkey
ex rel. Ragsdale v. Andrews Ctr., 104 S.W.3d 626, 628 (Tex. App.−Tyler 2003, no pet.).




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       Whether undisputed evidence of jurisdictional facts establishes a trial court’s jurisdiction is
a question of law. Miranda, 133 S.W.3d at 226. However, when the legislature conditions an
immunity waiver on the existence of a statutory violation, jurisdiction and merits are intertwined,
and the elements of the violation are jurisdictional facts. Town of Shady Shores v. Swanson, No.
18-0413, 2019 WL 6794327, at *4 (Tex. Dec. 13, 2019); Alamo Heights Indep. Sch. Dist. v. Clark,
544 S.W.3d 755, 784 (Tex. 2018). Where jurisdictional facts are inextricably linked to the merits
of the controversy the trial court has discretion to decide whether the jurisdictional determination
should be made at a preliminary hearing or await fuller development of the case. Miranda, 133
S.W.3d at 227. If there is a fact question, the court cannot grant the plea to the jurisdiction. Id. at
227-28.
       When, as here, the plea challenges the existence of jurisdictional facts, we consider
evidence when necessary to resolve the jurisdictional issues, even if the evidence implicates both
subject-matter jurisdiction and the merits of a claim. Clark, 544 S.W.3d at 770-71. The standard
of review for a jurisdictional plea based on evidence “generally mirrors that of a summary judgment
under Texas Rule of Civil Procedure 166a(c).” Miranda, 133 S.W.3d at 228. 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. Id. The defendant must assert the absence of subject-matter
jurisdiction and conclusively negate a jurisdictional fact. Swanson, 2019 WL 6794327, at *5;
Mission Consol. Ind. Sch. Dist. v. Garcia, 372 S.W.3d 629, 635 (Tex. 2012); Miranda, 133
S.W.3d at 228. If the defendant discharges this burden, the plaintiff must present evidence
sufficient to raise a material issue of fact regarding jurisdiction, or the plea will be sustained.
Swanson, 2019 WL 6794327, at *6; Garcia, 372 S.W.3d at 635; Miranda, 133 S.W.3d at 228.
Applicable Law
       Pursuant to the doctrine of sovereign immunity, the State of Texas cannot be sued in her
own courts without her consent and then only in the manner indicated by that consent. Wichita
Falls State Hosp. v. Taylor, 106 S.W.3d 692, 694 (Tex. 2003). The State can only be sued if the
legislature waives immunity in “clear and unambiguous language.” TEX. GOV’T CODE ANN.
§ 311.034 (West 2013); Univ. of Tex. at Austin v. Hayes, 327 S.W.3d 113, 115 (Tex. 2010) (per
curiam). The Texas Tort Claims Act (TTCA) provides a limited waiver of immunity, allowing
suits against governmental units under certain, narrowly defined circumstances. Tex. Dep’t of
Criminal Justice v. Miller, 51 S.W.3d 583, 587 (Tex. 2001).             The TTCA provides that a



                                                  3
governmental unit is liable for personal injuries caused by a condition or use of tangible personal
or real property if the governmental unit would, were it a private person, be liable to the claimant
according to Texas law. TEX. CIV. PRAC. & REM. CODE ANN. § 101.021(2) (West 2019). The
TTCA also waives immunity from suit to the same extent. Id. § 101.025(a); Miller, 51 S.W.3d at
587.
       The TTCA provides for a limited waiver of immunity for two categories of claims that
allege dangerous conditions on real property – premises defects and special defects. TEX. CIV.
PRAC. & REM. CODE ANN. § 101.022. If a claim arises from a premises defect, the governmental
unit owes to the claimant only the duty that a private person owes to a licensee on private property.
Id. The duty requires the governmental unit to not injure a licensee by willful, wanton or grossly
negligent conduct; furthermore, the government must use ordinary care to warn a licensee, or to
make reasonably safe a dangerous condition of which the government is aware and the licensee is
not. City of Weston v. Gaudette, 287 S.W.3d 832, 836 (Tex. App.−Dallas 2009, no pet.). The
plaintiff must show the defendant knew that the dangerous condition existed at the time of the
accident. Id.
       If the condition is a special defect, the governmental unit owes the duty that a private person
owes to an invitee. See TEX. CIV. PRAC. & REM. CODE ANN. § 101.022(b); Hayes, 327 S.W.3d at
116. With respect to an invitee, the government owes a duty to use ordinary care to reduce or
eliminate an unreasonable risk of harm created by a premises condition of which the government
knew or reasonably should have known. City of Dallas v. Reed, 258 S.W.3d 620, 622 (Tex. 2008)
(per curiam). To discharge its duty, the governmental unit must either adequately warn of the
dangerous condition or make the condition reasonably safe. See TXI Operations, L.P. v. Perry,
278 S.W.3d 763, 765 (Tex. 2009).
       Whether a condition is a special defect is a question of law that we review de novo. Tex.
Dep’t of Transp. v. Perches, 388 S.W.3d 652, 655 (Tex. 2012) (per curiam). A “special defect” is
not defined by the TTCA, but the legislature identified representative, non-exclusive examples
“such as excavations or obstructions on highways, roads, or streets.” TEX. REV. CIV. PRAC. & REM.
CODE. § 101.022(b); Hayes, 327 S.W.3d at 116. Thus, the statutory test is simply whether the
condition is of the same kind or class as an excavation or obstruction. Denton Cty. Tex. v. Beynon,
283 S.W.3d 329, 332 n.11 (Tex. 2009). The class of special defects contemplated by the statute is
narrow. Hayes, 327 S.W.3d at 116. A special defect, then, cannot be a condition that falls outside



                                                 4
of this class. Tex. Dep’t of Transp. v. York, 284 S.W.3d 844, 847 (Tex. 2009) (per curiam). An
excavation or obstruction could be described as a condition that presents an unexpected and unusual
danger to ordinary users of roadways. Beynon, 283 S.W.3d at 332 n.11. Conditions can be special
defects like excavations or obstructions only if they pose a threat to the ordinary users of a particular
roadway. Id. A special defect does not exist when the size of a condition is the type of slight
variation ordinary drivers, in the normal course of driving, should expect. Reed, 258 S.W.3d at
622. Thus, special defects present some unusual quality outside the ordinary course of events. Id.
Analysis
        Pierce was a passenger in a pickup truck driven by her husband early one morning while it
was still dark. As they exited the truck stop driveway to enter the highway, they encountered what
Pierce described as “significant deep holes and/or excavations” that caused the vehicle’s suspension
to violently shift and rock. Their truck was accelerating from a stop, at about five to eight miles
per hour, to enter Highway 271. The vehicle was not damaged, and Pierce’s husband was not
injured.
        In its plea to the jurisdiction, TxDOT asserted that the condition complained of is an
ordinary pothole and not a special defect, as a matter of law. In support of its plea, TxDOT relied
on photographs of the condition that were taken by Pierce’s husband a few days after the incident,
Google Map aerial photos, and local climatological data.
        The photos depict an area of asphalt with an uneven, rough, irregular surface. The surface
material is wearing away, and some depressions can be seen. The photographs show that the
complained-of condition is at the edge of the highway pavement, where it meets the concrete
driveway of the truck stop. The width of the driveway, as it touches Highway 271, is 102 feet. The
portion of the irregular asphalt runs along only a fraction of that 102 feet.
        It was raining at the time of the incident, and Pierce testified that the entire driveway
entrance was covered with water that morning. In the photos, water covers only part of the irregular
area, indicating some places are deeper than others. The water-filled areas do not span the entire
102 feet next to the driveway. The uneven area does not appear to be in the regular lane of traffic.
It is between the lane where highway traffic travels and the driveway. The height of the driveway
appears to be higher than the highway.
        Special defects are conditions that fall within the same kind or class as an excavation or
obstruction. TEX. CIV. PRAC. & REM. CODE ANN. § 101.022(b). Several cases demonstrate what



                                                   5
conditions are included in the statutory definition of “special defect.” A pothole large enough to
stop vehicles in their tracks and cause damage and injury constitutes unexpected and unusual
dangers to ordinary users of the roadway. See, e.g., Cty. of Harris v. Eaton, 573 S.W.2d 177, 178-
79 (Tex. 1978) (oval-shaped hole six to ten inches deep, and four to nine feet wide, extending
across ninety percent of roadway is a special defect); City of Weston v. Gaudette, 287 S.W.3d 832,
838-39 (Tex. App.−Dallas 2009, no pet.) (pothole ten feet wide and five to six inches deep,
extending the width of one traffic lane is a special defect); Morse v. State, 905 S.W.2d 470, 475
(Tex. App.−Beaumont 1995, writ denied) (ten to twelve inch drop off on shoulder of road is a
special defect); State v. Nichols, 609 S.W.2d 571, 573 (Tex. Civ. App.−Waco 1980, writ ref’d
n.r.e.) (caved-in portion of highway three to five feet wide and three to four feet deep, extending
across entire highway is a special defect).
       The supreme court has declined to expand the statutory definition of “special defect”
beyond its terms. Beynon, 283 S.W.3d at 333. Variations in public roadways of a few inches are
not the same as the excavations or obstructions mentioned in the TTCA. City of Denton v. Paper,
376 S.W.3d 762, 765 (Tex. 2012) (per curiam). The class of special defects contemplated by the
statute does not include common potholes or similar depressions in the roadway. Id. at 766.
Construing an uneven and partially deteriorating road surface as an excavation or obstruction
strains the definitions of those conditions. See City of El Paso v Bernal, 986 S.W.2d 610, 611
(Tex. 1999) (per curiam) (held that worn or depressed area of sidewalk approximately three feet by
six feet in size with a depth of three inches was not a special defect); City of Grapevine v. Roberts,
946 S.W.2d 841, 843 (Tex. 1997) (per curiam) (held photographs show cracked and crumbled
sidewalk step, which does not meet definition of excavation or obstruction).
        While passengers in vehicles encountering the rough asphalt at the edge of Highway 271
would not have the same experience as when traveling over a smooth surface, the road’s condition
does not pose a threat to ordinary users. As the supreme court has said, “not every hole or hindrance
is special; otherwise, the statutory limitation on the government’s duty would amount to little.”
Reyes v. City of Laredo, 335 S.W.3d 605, 607 (Tex. 2010) (per curiam). Here, the irregular surface
does not constitute an “unusual quality outside the ordinary course of events” such as would cause
it to be included in the class of conditions covered by the statute. See Reed, 258 S.W.3d at 622.
Rough, uneven asphalt and even potholes are not unexpected and should be within the realm of




                                                  6
objective expectations of the ordinary user. See Hayes, 327 S.W.3d at 116. Typically, such
irregularities will not present an unusual danger to the traveler. Paper, 376 S.W.3d at 766.
       The photographs indicate the irregular surface does not compare with the road conditions
that have been found to be in the same class as excavations. Further, the truck was accelerating at
the time it encountered the road condition and was not completely stopped by the road condition.
The truck did not get stuck or flip as in some cases involving special defects. See Eaton, 573
S.W.2d at 180 (special defect in road caused car to flip and land upside down); Graham v. Tyler
Cty., 983 S.W.2d 882, 885 (Tex. App.−Beaumont 1998, pet. denied) (special defect in road stopped
back wheels of car).
       Neither the road nor the entrance to the truck stop driveway were impassable. The photos
show that the surface was not rough and irregular all along the entrance. As the deteriorated area
does not span the entire entrance, it is possible for vehicles to avoid it while entering the business
premises. Further, vehicles could have used the truck stop’s other driveway. Although it may have
been impossible to avoid driving through water on this driveway on the morning of the incident,
that fact does not prove a special defect. See Villegas v. Tex. Dep’t of Trans., 120 S.W.3d 26, 32
(Tex. App.−San Antonio 2003, pet. denied) (held that a pool of rainwater that accumulated on the
road is not unexpected or unusual to a motorist). We can infer that the depth of any water-covered
potholes was not extreme because there was no damage done to the vehicle. Additionally,
deterioration of asphalt over time, particularly where there is heavy truck traffic, is not unusual or
unexpected.
       The photographs presented by TxDOT provide adequate information to determine, as a
matter of law, that the condition of the road is not a special defect. See Paper, 376 S.W.3d at 765-
66; Roberts, 946 S.W.2d at 843 (photographic evidence sufficiently demonstrated that sidewalk’s
condition was not special defect). Because the standard of review for a jurisdictional plea based
on evidence generally mirrors that of a traditional motion for summary judgment, the burden shifted
to Pierce to present evidence sufficient to raise a fact issue regarding jurisdiction. See Swanson,
2019 WL 6794327, at *6; Miranda, 133 S.W.3d at 228.
       With her response, Pierce relied on portions of the deposition testimony of Jeff Harmon, a
TxDOT employee, who testified that if a large hole is in an area where vehicles travel, it is a risk
and danger to the public. He also stated that caving roadways are a danger to the public. Harmon




                                                  7
was speaking in generalities and did not provide evidence that the specific road condition Pierce
encountered included a large hole or caving.
       Pierce also relied on a TxDOT work order, dated April 18, 2016, four days after the incident.
The location of the work is listed as “I20 & 271 truck stop entrance.” The words “potholes” and
“edge repair” are circled in a list under the title “Work Description.” Under the “Details” section
it states: “large holes & edge of pavement @ ditch caving off. This is a truck entrance.” A hand-
written notation says the work was “finished” on April 19, 2016. The terms “large holes” and
“caving off” are subjective and not expounded upon in the work order, a one-page form that was
not filled out completely. Most lines were left blank including date assigned, person it was assigned
to, and name, address, and telephone number of the location. The work order identified the need
for a repair in the most general manner possible. The terminology used in the work order does not
reasonably infer that the condition needing repair is of the same class as an excavation or
obstruction. This evidence is proof that a repair was needed at the location of the incident, but its
use of cryptic terms is too vague to constitute evidence creating a fact issue regarding whether the
condition is a special defect. Thus, Pierce did not meet her burden to raise a material issue of fact
regarding jurisdiction. See Miranda, 133 S.W.3d at 228. Because the road condition was not a
special defect, Section 101.022(b) of the TTCA does not waive TxDOT’s immunity from suit. See
TEX. CIV. PRAC. & REM. CODE ANN. § 101.022(b); Hayes, 327 S.W.3d at 117.
       We next consider whether the trial court had jurisdiction over Pierce’s claim for premises
defect. To establish a waiver of immunity for a premises-defect claim, Pierce must establish,
among other elements, that TxDOT had actual knowledge of the dangerous condition at the time
of the incident. Hayes, 327 S.W.3d at 117. In its plea to the jurisdiction, TxDOT argued that there
is no evidence that it had actual knowledge of the road condition as it existed at the time of the
incident. Pierce asserts that TxDOT was aware that this location was repaired several times before
the incident, including approximately six months before, and that it is an area of heavy truck traffic.
Further, TxDOT’s employee acknowledged that there is a greater risk of failures on roadways
where heavy trucks travel.
       Pierce’s evidence misses the mark. It is not sufficient for TxDOT to know of the possibility
that a dangerous condition could develop over time. See id. Awareness of a potential problem is
not actual knowledge of an existing danger. Paper, 376 S.W.3d at 767. Pierce did not present
evidence raising a fact question regarding TxDOT’s knowledge of the road condition at the time



                                                  8
of the incident. Therefore, TxDOT’s immunity from suit on the premises defect claim is not
waived. See TEX. CIV. PRAC. & REM. CODE ANN. § 101.022(a); Miranda, 133 S.W.3d at 228
         Because TxDOT showed as a matter of law that the trial court lacked subject matter
jurisdiction, the trial court erred in denying TxDOT’s plea to the jurisdiction. See Miranda, 133
S.W.3d at 232. We sustain TxDOT’s first issue. It is not necessary to address TxDOT’s second
issue, in which it contends the condition did not pose an unreasonable risk of harm. See TEX. R.
APP. P. 47.1.


                                                   DISPOSITION
         Having determined that TxDOT did not waive sovereign immunity, we reverse the trial
court’s order and render judgment that TxDOT’s plea to the jurisdiction is granted and the cause
is dismissed for want of jurisdiction.

                                                                 JAMES T. WORTHEN
                                                                    Chief Justice



Opinion delivered January 31, 2020.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.




                                                    (PUBLISH)



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                                   COURT OF APPEALS

      TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                                           JUDGMENT

                                          JANUARY 31, 2020


                                         NO. 12-19-00260-CV


                     TEXAS DEPARTMENT OF TRANSPORTATION,
                                   Appellant
                                      V.
                                 DANA PIERCE,
                                   Appellee


                                  Appeal from the 7th District Court
                          of Smith County, Texas (Tr.Ct.No. 18-0355-A)

                      THIS CAUSE came to be heard on the oral arguments, appellate record and
the briefs filed herein, and the same being considered, it is the opinion of this court that there was
error in the trial court’s order denying Texas Department of Transportation’s plea to the
jurisdiction.
                      It is therefore ORDERED, ADJUDGED and DECREED by this court that the
trial court’s order denying Texas Department of Transportation’s plea to the jurisdiction be, and
the same is, hereby reversed and judgment is rendered granting the plea to the jurisdiction and
dismissing Dana Pierce’s claims against Texas Department of Transportation for want of
jurisdiction. It is further ORDERED that all costs in this cause expended in this court be, and the
same are, hereby adjudged against the Appellee, DANA PIERCE, for which let execution issue;
and that this decision be certified to the court below for observance.
                      James T. Worthen, Justice.
                    Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
