
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN




ON MOTION FOR REHEARING






NO. 03-00-00744-CV





Texas Department of Transportation, Michael W. Behrens, Robert L. Nichols, John W.
Johnson, and Ric Williamson, Appellants

v.


City of Sunset Valley, Terrance R. Cowan, and Donald Hurwitz, Appellees






FROM THE DISTRICT COURT OF TRAVIS COUNTY, 353RD JUDICIAL DISTRICT
NO. 98-05052, HONORABLE SUZANNE COVINGTON, JUDGE PRESIDING





	Our opinion and judgment issued on June 13, 2002, are withdrawn, and the following
opinion is substituted.
	In this inverse condemnation proceeding, the Texas Department of Transportation
("TxDOT") and its named officials appeal the district court's final judgment in favor of the City of
Sunset Valley and intervenors Terrance Cowan and Donald Hurwitz.  In five issues, TxDOT
contends that (1) Sunset Valley is not a "person," and is therefore not entitled to the protections of
article 1, section 17 of the Texas Constitution; (2) the district court erred by excluding evidence of
a settlement agreement between Sunset Valley and third parties; (3) the district court erred by
rendering a declaratory judgment that TxDOT failed to comply with certain sections of the
administrative code; (4) Cowan and Hurwitz do not have standing to assert equal protection claims
against the state; and (5) Cowan's nuisance claim is barred by sovereign immunity.  In light of our
disposition of TxDOT's first issue, we will reverse the damage award as to the amount necessary to
compensate appellees adequately for the reasonable cost of a substitute road facility and remand the
case for further proceedings in accordance with this opinion.  We will also reverse the district court's
judgment as to TxDOT's third issue and render judgment denying Sunset Valley's claim for
declaratory relief regarding TxDOT's compliance with the administrative code.  The district court's
judgment in all other respects will be affirmed.

BACKGROUND
	In 1991 and 1992, TxDOT occupied and destroyed a section of Jones Road, one of
Sunset Valley's major municipal arteries, in the process of expanding U.S. Highway 290.  As a result
of this highway expansion, transportation in and around Sunset Valley was significantly hindered,
and the city found it necessary to construct a substitute street at its own expense.  In addition, Sunset
Valley complained that TxDOT's expansion of Highway 290 violated state pollution regulations. 
Further, the city objected to TxDOT's use of high mast floodlights for highway lighting and alleged
that they were a nuisance to motorists and area home owners.  Finally, Sunset Valley was dissatisfied
with the expansion project because TxDOT failed to provide city limit and exit signs on the portion
of Highway 290 in the city limits.
	In May 1998, Sunset Valley filed suit against TxDOT.  Cowan, the City's mayor, and
Hurwitz, a city council member, intervened in the suit.  TxDOT filed a plea to the jurisdiction which
the district court denied.  TxDOT brought an interlocutory appeal to this Court, arguing
(1) that Sunset Valley lacks standing to sue for inverse condemnation, (2) that Sunset
Valley lacks standing to bring its claims for damages resulting from increased
circuity of travel and noise and light pollution, and (3) that TxDOT is immune from
suit for declaratory relief by virtue of the doctrine of sovereign immunity.


Texas Dep't of Transp. v. City of Sunset Valley, 8 S.W.3d 727, 733 (Tex. App.--Austin 1999, no
pet.).  We affirmed the district court's denial of TxDOT's plea, and the cause proceeded to trial.
	Following a jury trial, the district court awarded Sunset Valley the following relief:
(1) $836,192.80 for the cost of a substitute road through Sunset Valley; (2) $810,978.60 in
prejudgment interest; (3) a declaratory judgment that TxDOT violated administrative regulations
relating to noise and lighting; (4) an injunction to abate the private nuisance caused by lighting on
Highway 290; and (5) $34,075 in attorney's fees.  The district court also awarded Cowan and
Hurwitz the following relief: (1) $3,648 in damages and an injunction to abate private nuisance; (2)
a declaratory judgment that TxDOT violated administrative regulations relating to noise and lighting;
(3) a declaratory judgment and injunction for equal protection violations arising from the use of
floodlights and failure to erect city limit signs; and (4) $7,000 in attorney's fees.  TxDOT appeals
the judgment.

DISCUSSION
Inverse Condemnation
	In its first issue, TxDOT contends that Sunset Valley is not a "person " under article
1, section 17 of the Texas Constitution, and therefore is not entitled to the protections of that
provision. (1)  However, the judgment recites two additional grounds for the district court's ruling on
Sunset Valley's inverse condemnation claim:

Having considered the claim of inverse condemnation, the Court finds that:

a.	Defendants occupied and appropriated a portion of Jones Road from the Plaintiff
City of Sunset Valley, and destroyed Jones Road where it intersects with Brodie
Lane;

b.	This occupation, appropriation and destruction was uncompensated and in
violation of the Texas Transportation Code, the Texas common law of trespass
and nuisance and Art. I, § 17 of the Texas Constitution. . . .


When a separate and independent ground that supports a judgment is not challenged on appeal, the
appellate court must affirm the lower court's judgment.  San Antonio Press v. Custom Bilt Mach.,
852 S.W.2d 64, 65 (Tex. App.--San Antonio 1993, no writ); Herndon v. First Nat'l Bank of Tulia,
802 S.W.2d 396, 400 (Tex. App.--Amarillo 1991, writ denied); see also Nobility Homes of Tex.,
Inc. v. Shivers, 557 S.W.2d 77, 83 (Tex. 1977).  Because TxDOT does not challenge the district
court's ruling that TxDOT's occupation, appropriation and destruction of Jones Road was in
violation of the transportation code (2) and the common law of trespass and nuisance, we must affirm
the district court's judgment on these unchallenged, separate, and independent grounds.
	Even if TxDOT had challenged all three grounds for the district court's ruling on
appeal, Conclusion of Law No. 6 states "The occupation, appropriation and destruction of Jones
Road without compensation to the City of Sunset Valley violated the Texas Transportation Code." 
Conclusions of law will be upheld on appeal if the judgment can be sustained on any legal theory
supported by the evidence.  Westech Eng'g, Inc. v. Clearwater Constructors, Inc., 835 S.W.2d 190,
196 (Tex. App.--Austin 1992, no writ).  Incorrect conclusions of law will not require reversal,
however, if the controlling findings of fact will support a correct legal theory.  Id.; Valencia v.
Garza, 765 S.W.2d 893, 898 (Tex. App.--San Antonio 1989, no writ).  Moreover, conclusions of
law may not be reversed unless they are erroneous as a matter of law.  Westech, 835 S.W.2d at 196. 
	Section 203.058(a) of the transportation code requires TxDOT to pay adequate
compensation to a state agency for the acquisition of that agency's property:

If the acquisition of real property, property rights, or material by the department from
a state agency under this subchapter will deprive the agency of a thing of value to the
agency in the exercise of its functions, adequate compensation for the real property,
property rights, or material shall be made.


Tex. Transp. Code Ann. § 203.058(a) (West 1999).  The transportation code defines "state agency"
as "a department or agency of this state."  Id. § 203.001(4).  The Texas Supreme Court has held that
municipal corporations such as Sunset Valley are agencies of the State.  See Proctor v. Andrews, 972
S.W.2d 729, 734 (Tex. 1998) ("Municipal corporations [including home rule cities] are created for
the exercise of certain functions of government. . . .  In so far as their character is governmental, they
are agencies of the state, and subject to state control.").  Section 203.058(a), therefore, clearly entitles
Sunset Valley to adequate compensation for TxDOT's "occupation, appropriation and destruction
of Jones Road."  In light of the standards set out above, we cannot say that Conclusion of Law No.
6 is erroneous.  Because TxDOT failed to challenge all three grounds for the district court's ruling
on appeal, and because we hold that the judgment can be upheld on the ground that the transportation
code entitles Sunset Valley to adequate compensation, we overrule TxDOT's first issue.  See Tex.
R. App. P. 47.1.
	However, section 203.058(e) of the code provides that the amount of adequate
compensation paid to a state agency is to be determined by the General Land Office: "If the
department and state agency are unable to agree on adequate compensation, the General Land Office
shall determine the fair, equitable, and realistic compensation to be paid."  Tex. Transp. Code Ann.
§ 203.058(e).  Jurisdiction can be raised at any point in the proceedings by either the parties or the
court sua sponte.  Texas Ass'n of Bus. v. Air Control Bd., 852 S.W.2d 440, 446 (Tex. 1993); Buffalo
Realty Corp. v. Enron Corp., 906 S.W.2d 275, 277 (Tex. App.--Amarillo 1995, no writ).  While
section 203.058(e) does not deprive the district court of jurisdiction to determine whether Sunset
Valley is entitled to adequate compensation, the district court did not have jurisdiction to decide how
much compensation the city is entitled to receive.  See Tex. Transp. Code Ann. § 203.058(e). 
Therefore, we reverse the district court's damage award and remand the case accordingly.
Exclusion of Evidence
	In its second issue, TxDOT contends that the trial court abused its discretion by
excluding evidence of a 1996 settlement agreement ("the Agreement") as it was directly relevant to
the necessity for, and cost of, substitute facilities for Jones Road.  The Agreement resulted from a
zoning dispute between Sunset Valley and the J.D. Weaver Family Limited Partnership ("the Weaver
Family").  The Weaver Family, a landowner and developer in Sunset Valley, sought the city's
approval to rezone and subdivide portions of its property for development.  The Agreement required
Sunset Valley to approve the Weaver Family's development plans and construct a roadway
connecting two other roads at an intersection with Jones Road.  In exchange, the Weaver Family
agreed to donate the land for the roadway.
	The district court sustained Sunset Valley's objection that the evidence concerning
the Agreement required extensive facts regarding a separate lawsuit not directly relevant to the suit
at bar.  See Tex. R. Evid. 402.  In addition, the district court sustained the city's objection that the
evidentiary value of the Agreement would be far outweighed by the danger of confusing and
misleading the jury and causing undue delay.  See Tex. R. Evid. 403.
	The admission and exclusion of evidence are within the sound discretion of the trial
court.  City of Brownsville v. Alvarado, 897 S.W.2d 750, 753 (Tex. 1995); Waldrep v. Texas
Employers Ins. Ass'n, 21 S.W.3d 692, 703 (Tex. App.--Austin 2000, pet. denied).  We will not
reverse a ruling excluding evidence simply because we disagree with the decision.  Beaumont Bank,
N.A. v. Buller, 806 S.W.2d 223, 226 (Tex. 1991); Waldrep, 21 S.W.3d at 703.  The party
complaining of the exclusion of evidence must show that the trial court erred and that the error
probably resulted in an improper judgment.  See Tex. R. App. P. 44.1; Tex. R. Evid. 103(a); Gee v.
Liberty Mut. Fire Ins. Co., 765 S.W.2d 394, 396 (Tex. 1989).  A successful challenge to an
evidentiary ruling usually requires the complaining party to show, based on the entire record, that
the judgment turns on the challenged evidence.  Alvarado, 897 S.W.2d at 753-54. 
	At trial, TxDOT contended that the Agreement was admissible because it established
the reason for Sunset Valley's construction of a replacement road for Jones Road:

[T]hey built this road in 1998 in the--because they had to, not because of Jones Road
being cut but because they had to because they entered an agreement to build it.  And
we think that's very relevant to the necessity of the roadway under the substitute of
facilities doctrine.  They didn't build it because of the need for traffic; they built it
because they agreed to build it.  That's what this agreement--that's why it's relevant,
Judge.


On appeal, TxDOT contends that the district court erred by refusing to admit the Agreement into
evidence because it was "directly relevant to the issues of necessity and cost of substitute facilities"
and because "completed agreements are ordinarily admissible."  TxDOT does not provide, and we
are unaware of, any place in the trial record reflecting its argument that "[a]lthough offers of
compromise or void compromise agreements are not admissible in evidence, completed agreements
are ordinarily admissible."  Because the record reflects that TxDOT makes this argument for the first
time on appeal, it cannot serve as the basis for TxDOT's appellate complaint.  See Tex. R. App. P.
33.1(a).  Further, the record reflects Sunset Valley's argument that the Agreement was irrelevant and
that its evidentiary value would be far outweighed by the danger of confusing and misleading the
jury:

As you can see, there's a lot of consideration that the City gave in order to get
donations of land.  And it's unfair to characterize it as free land that the City got. 
The City did give its consideration back for the land in receipt of the roadway. . . . 
And believe me, the other lawsuit [between Sunset Valley and the Weaver Family]
is very convoluted and there's questions now about who owns the right-of-way.  And
the other--other matter is it's--you know, if the question is, is there an objective
need for the roadway, and then if there is a need, what's the cost, just seems to be
irrelevant to the question of need or actual cost of the roadway--I mean, what the
cost should have been in 1991.


In light of Sunset Valley's arguments concerning the Agreement's relevance to the cost of replacing
Jones Road in 1991 and the danger of misleading the jury, we cannot say that the district court
abused its discretion in refusing to admit the Agreement into evidence.  Finally, TxDOT has failed
to show, based on the entire record, that the judgment of the district court turned on the exclusion
of the Agreement.  See Tex. R. App. P. 44.1(a).  Accordingly, we overrule its second issue.

Administrative Rules Violations Claim
	In its third issue, TxDOT argues that the district court erred by granting a declaratory
judgment that TXDOT and its named officials violated environmental regulations relating to noise
and lighting from the expansion of Highway 290.  The district court's final judgment states: 
"Therefore, pursuant to Tex. Civ. Prac. & Rem. Code § 37.001 et seq., and Tex. Gov't Code
§ 2001.038, IT IS HEREBY DECLARED THAT: . . .  Defendants failed to [comply with numerous
sections of Title 43 of the Texas Administrative Code]."
	Section 37.001 of the Texas Civil Practice and Remedies Code (The Uniform
Declaratory Judgments Act) does not enlarge the jurisdiction of Texas courts.  See State v. Morales,
869 S.W.2d 941, 947 (Tex. 1994).  Similarly, section 2001.038 of the Texas Government Code does
not confer jurisdiction upon a court to determine whether an administrative agency has complied
with the administrative code: "The validity or applicability of a rule . . . may be determined in an
action for declaratory judgment if it is alleged that the rule or its threatened application interferes
with or impairs, or threatens to interfere with or impair, a legal right or privilege of the plaintiff." 
Tex. Gov't Code Ann § 2001.038(a) (West 2000).  The plain language of section 2001.038 confers
jurisdiction upon a district court to resolve two issues: (1) whether a rule is valid, and/or (2) whether
a rule is applicable.  See Texas Gen. Indem. Co. v. Texas Workers' Comp. Comm'n, 36 S.W.3d 635,
637 (Tex. App.--Austin 2000, no pet.); see also Continental Cas. Ins. Co. v. Functional Restoration
Assocs., 19 S.W.3d 393, 398 (Tex. 2000) ("Our objective in construing a statute is to determine and
give effect to the Legislature's intent. . . .  In so doing, we look first to the plain and common
meaning of the statute's words.").  In this case, the district court did not address either of these
considerations; instead, it determined whether TxDOT's actions complied with certain sections of
the administrative code.  Neither section 37.001 nor section 2001.038 confers jurisdiction upon the
district court to grant a declaratory judgment on this issue.
	"No right of judicial review of agency action exists unless a statute provides for such
review, the action violates a constitutional right, or the action adversely affects a vested property
right."  Continental Cas. Ins. Co., 964 S.W.2d at 779.  Because neither the district court nor Sunset
Valley points to a statutory grant of jurisdiction for the district court to review TxDOT's compliance
with the rules, we will sustain TxDOT's third issue unless its actions violate a constitutional right
or adversely affect a vested property right of the city's.
	Contrary to Sunset Valley's assertion, we did not hold in our opinion addressing
TxDOT's interlocutory appeals "that vested property rights, common law rights, and constitutional
rights were affected by [TxDOT's] violations of their own environmental rules."  Again, in that
opinion, we addressed the narrow issues of standing and sovereign immunity; we expressly declined
to determine "whether Sunset Valley should prevail on the merits of its case."  City of Sunset Valley,
8 S.W.3d at 730.  Because Sunset Valley does not point to any authority providing that "the right to
regulate lighting and minimize sky glow " is considered a constitutional or vested property right, we
sustain TxDOT's third issue.  Cf. Chemical Bank & Trust Co. v. Falkner, 369 S.W.2d 427, 433 (Tex.
1963) (holding party has vested property right in charter); Brazosport Sav. & Loan Ass'n v. American
Sav. & Loan Ass'n, 342 S.W.2d 747, 750-51 (Tex. 1961) (holding franchise which has been invested
in is vested right); Bohannan v. Texas Bd. of Criminal Justice, 942 S.W.2d 113, 117 (Tex.
App.--Austin 1997, writ denied) (holding plaintiff's claim that restoration of good conduct time is
vested property interest is not "indisputably meritless"). (3)

Equal Protection
	In its fourth issue, TxDOT challenges Cowan's and Hurwitz's standing to bring equal
protection claims for TxDOT's failure to place city limit and exit signs on the stretch of Highway
290 through Sunset Valley.  Specifically, TxDOT contends that Cowan and Hurwitz failed to plead
and prove a special injury concerning the absence of "City of Sunset Valley" signs. 
	The issue of standing is a legal question which we review de novo.  El Paso Cmty.
Partners v. B&G/Sunrise Joint Venture, 24 S.W.3d 620, 624 (Tex. App.--Austin 2000, no pet.). 
A lack of standing deprives a court of subject matter jurisdiction because standing is an element of
such jurisdiction.  Benker v. Texas Dep't of Ins., 996 S.W.2d 328, 330 (Tex. App.--Austin 1999,
no pet.) (citing Texas Ass'n of Bus., 852 S.W.2d at 444-45).  A plaintiff must plead facts that
affirmatively demonstrate standing; that is, the plaintiff must affirmatively show jurisdiction.  Id. 
To establish standing, one must show a justiciable interest by alleging actual or imminent threat of
injury peculiar to one's circumstances and not suffered by the public generally.  Id.; see also Hunt
v. Bass, 664 S.W.2d 323, 324 (Tex. 1984).  "[W]here the sole object of a suit is for the benefit of the
public at large and no citizen is to be affected differently from all other citizens, an individual cannot
institute a cause of action because he has no justiciable interest."  Hardy v. Hannah, 849 S.W.2d
355, 357 (Tex. App.--Austin 1992, writ denied). 
	In their September 30, 1999, third amended plea in intervention, Cowan and Hurwitz
contended that they had standing to intervene in the action against TxDOT:

1.	Intervenor Terrance Cowan is a resident and property owner within Sunset
Valley, where he serves as Mayor.  Mr. Cowan's home is located north of
Highway 290, a short distance from the highway.  Besides suffering
discrimination and injuries in common with other residents of Sunset Valley as
a result of the conduct of Defendants, his property is peculiarly afflicted by noise
and light from Highway 290.  In addition, Mr. Cowan has had his pedestrian
access to and from most of the city destroyed by Defendants.

2.	Intervenor Donald Hurwitz is a resident of and property owner within Sunset
Valley, where he serves on the City Council.  He enjoys the privileges and rights
common to citizens of Sunset Valley and has been affected and harmed by the
discrimination of Defendants against Sunset Valley and its residents.  In
common with other residents of Sunset Valley, Mr. Harwitz is affected by the
noise and light pollution of Highway 290.


With regard to the lack of city limit and exit ramp signs, the plea in intervention states:

For each of the following municipalities within Travis County, TxDOT posted city-limit signs on the main lanes of state highways that traverse them: Austin, Bee Cave,
Briarcliff, Cedar Park, Creedmore, Jonestown, Lago Vista, Lakeway, Manor,
Mustang Ridge, Pflugerville, Rollingwood, San Leanna and West Lake Hills.  Sunset
Valley, alone among all Travis County Municipalities, is the only city for which this
basic signage is not provided. . . .  With respect to the Sunset Valley ramps, TxDOT
has refused to erect signs notifying motorists as to the proper exit ramp for travel to
Sunset Valley.  This is a unique discrimination that is not generally imposed upon
other like cities.


During trial, Cowan testified concerning the problems associated with the lack of city limit and exit
signs in Sunset Valley: "We've had problems with people finding--finding us and getting to city
hall."  In addition, Hurwitz testified as follows:

I've been a part of a lot of small towns in a lot of small areas, and I think it's
important to have a cohesiveness and people recognize where we are.  There's other
issues as well.  I have a lot of friends in Austin and they have a hard time finding us,
and particularly since the freeway's been changed, because it used to be a little
simpler to explain to them how we got there.  It's also important from a commercial
standpoint, because we have a lot of shopping there and that helps--helps us
with--with location, and some of our merchants say that they're in Sunset Valley. 
I think that's pretty important as well.


Finally, Finding of Fact No. 23 states:


The Court finds that Defendants have treated Mr. Cowan and Mr. Hurwitz, as
residents of the City of Sunset Valley, disparately when compared to the residents of
other municipalities by failing to erect on the main lines of Highway 290 city limit
signs and signs designating the proper exit ramp to use to travel to Sunset Valley.


	As they relate to the lack of city limit and exit signs, Cowan's and Hurwitz's
pleadings, Finding of Fact No. 23, and the intervenors' testimony at trial refer to injuries that are
unique to them as citizens of Sunset Valley.  The pleadings repeatedly recite that Cowan and Hurwitz
are suffering injuries "common with other residents of Sunset Valley" and "as residents of Sunset
Valley."  Finding of Fact No. 23 includes a  finding of disparate treatment to Cowan and Hurwitz
"as residents of the City of Sunset Valley."  The intervenors' testimony concerning the absence of
signs clearly describes injuries borne by the residents of Sunset Valley.  See Felts, 915 S.W.2d at
485.  In light of the pleadings, testimony, and findings, Cowan and Hurwitz have "made sufficient
allegations concerning infringement of their private rights to present justiciable interests."  See Hunt,
664 S.W.2d at 324.  Accordingly, they had standing to bring equal protection claims for failure to
place city limit and exit signs on the stretch of Highway 290 through Sunset Valley.
	TxDOT also contends that there is no evidence to support the district court's finding
that the construction of high mast floodlights for highway lighting resulted in the disparate treatment
of Cowan and Hurwitz; alternatively, TxDOT contends that there is no evidence to support the
district court's conclusion that Cowan's and Hurwitz's disparate treatment was not justified by a
rational basis.  Finding of Fact No. 24 states: "The Court finds the Defendants [sic] decision to erect
and maintain high mast floodlights within and surrounding the City of Sunset Valley singles out Mr.
Cowan and Mr. Hurwitz, as residents of the City, for disparate treatment."  Because we attach to
findings of fact the same weight that we attach to a jury's verdict upon jury questions, we review
Finding of Fact No. 24 for the legal and factual sufficiency of the evidence.  Westech, 835 S.W.2d
at 195.
	The record reflects that Nancy Clanton, a lighting engineer, testified regarding the
problems associated with the use of high mast floodlights for highway lighting on the portion of
Highway 290 in Sunset Valley.  Clanton testified that she had never seen floodlights used for
highway lighting and that the roadway lighting through Sunset Valley was the worst she had ever
seen.  Clanton also testified that the stretches of Highway 290 on either side of Sunset Valley
consisted of proper highway fixtures pointing at the road.  In addition to Clanton's testimony, Cowan
testified as follows:

The floodlights from 290 shine directly into my property, particularly the portion of
my property that's in front of my house.  That's on the back of the lot.  As a matter
of fact, at midnight or 3:00 in the morning, I can read a newspaper from those
floodlights on my lot. . . .  When the floodlights went up, that changed the rural
character of my home.  In addition, it also created for me a safety concern in that at
night, because it's lit up all the time, I'm concerned about letting my daughters or my
wife go out beyond the house, beyond the trees into that area, because anybody
passing through there can see them.  It's like they're spotlighted there.


	TxDOT's discussion on this portion of its issue contains no authority.  See Tex. R.
App. P. 38.1(h).  The citations to the record in its brief reflect the testimony of Robert Stuard,
TxDOT's engineer, to the effect that "in the normal course of business 'anything that we do we don't
want to create a nuisance'" and that "we try to incorporate into our design how we're actually going
to handle traffic and build the project with the least impact on businesses and homes that are nearby." 
Based on our review of the record, we hold that Finding of Fact No. 24 is not so contrary to the
overwhelming weight of the evidence as to be clearly wrong and unjust.  See Westech, 835 S.W.2d
at 195.
	Further, Conclusion of Law No. 28 states: "The Court finds the Defendants' unequal
treatment of Mr. Cowan and Mr. Hurwitz regarding high mast floodlights as found in Finding of Fact
24 is neither reasonably nor rationally related to a substantial difference."  As stated previously,
conclusions of law will be upheld on appeal if the judgment can be sustained on any legal theory
supported by the evidence.  Westech, 835 S.W.2d at 196.  An appellate court will not reverse even
an incorrect conclusion of law if the controlling findings of facts will support a correct legal theory. 
Id.; Valencia v. Garza, 765 S.W.2d 893, 898 (Tex. App.--San Antonio 1989, no writ).  Moreover,
conclusions of law may not be reversed unless they are erroneous as a matter of law.  Westech, 835
S.W.2d at 196.
	In its brief, TxDOT contends that its lighting expert, Karl Burkett, established the
rational basis for the lighting system in Sunset Valley.  Burkett testified concerning the advantages
of high mast lighting and characterized floodlights and high mast fixtures as "state of the art." 
However, the record of his testimony reflects that Burkett did not specifically articulate a rational
basis for the use of high mast floodlighting fixtures like those on the stretch of Highway 290 through
Sunset Valley.
	In response to TxDOT's arguments concerning Burkett's testimony, Sunset Valley
emphasizes that "Appellees have no complaint over the high masts; rather their complaint is with
the fact that floodlights are placed atop these masts." (4)  In fact, Burkett expressly testified that the
high mast floodlights on the stretch of Highway 290 through Sunset Valley do not meet TxDOT's
current lighting standards:

Q:	The high mast floodlights that currently exist in the City of Sunset Valley, they
do not meet current design standards?

A:	That is correct.


Further, Clanton testified that the use of high mast floodlights caused glare:


Q:	Now, these--this lighting system that you observed in Sunset Valley with the
floodlighting and everything, does it have any implications for highway safety?

A:	The implications that I would see with highway safety is when you introduce
glare on a highway, you have the--the phenomenon, as I talked about it earlier,
called--you could either have discomfort glare, which is not as common
because you need quite a bit of light to really cause discomfort, but there
definitely could be disability glare, where when light comes in to your eye and
gets trapped, you cannot see beyond.
TxDOT's arguments address the rational basis for the use of high mast lighting generally.  TxDOT
does not provide evidence of highway characteristics unique to that stretch of Highway 290 through
Sunset Valley justifying the use of high mast floodlights.  Based on our review of the record, we
cannot say that Conclusion of Law No. 28 is erroneous as a matter of law.  Further, Cowan and
Hurwitz had standing to bring equal protection claims regarding city limit and exit signs, and Finding
of Fact No. 24 is not so contrary to the overwhelming weight of the evidence as to be clearly wrong
and unjust.  Accordingly, we overrule TxDOT's fourth issue.

Sovereign Immunity
	In its fifth and final issue, TxDOT contends that appellees' nuisance claims based on
the use of high mast floodlights are barred by sovereign immunity.  TxDOT argues appellees have
failed to discharge their burden of pleading and proving TxDOT's waiver of sovereign immunity,
and that the district court erred in allowing them to recover for nuisance.
	Generally, state agencies are immune from suit unless that immunity is waived. 
Texas Dep't of Transp. v. Able, 35 S.W.3d 608, 611 (Tex. 2000).  However, "[g]overnmental entities
may be liable for nuisances created or maintained in the course of non-negligent performance of
governmental functions."  Wickham v. San Jacinto River Auth., 979 S.W.2d 876, 880 (Tex.
App.--Beaumont 1998, no pet.).  "'[N]on-negligence' means beyond negligence, as in gross
negligence or an intentional act.  But if a nuisance is caused by the negligent performance of a
governmental function, then the governmental entity is protected from liability because of
governmental immunity."  Tarrant County v. English, 989 S.W.2d 368, 374-75 (Tex. App.--Fort
Worth 1998, pet. denied).
	A nuisance is defined as "a condition that substantially interferes with the use and
enjoyment of land by causing unreasonable discomfort or annoyance to persons of ordinary
sensibilities attempting to use and enjoy it."  Montgomery County v. Fuqua, 22 S.W.3d 662, 668
(Tex. App.--Beaumont 2000, pet. denied).  "To maintain a cause of action for nuisance, a plaintiff
must be able to show the alleged nuisance is inherent in the condition or thing itself, beyond that
arising from alleged improper or negligent use."  Id.
	The jury found that the use of high mast floodlights as roadway lighting constituted
a nuisance, and because there is more than a scintilla of evidence to support that finding, we will
uphold it.  See Able, 35 S.W.3d at 613.  Further, Finding of Fact No. 16 states:

The Court finds the Defendants have installed, operated and maintained floodlights
(rather than roadway lights) on high masts on Highway 290 within and near Sunset
Valley, in a manner which intentionally and knowingly causes bright light to shine
off of and away from the highway and directly onto the homestead of Plaintiff-Intervenor Cowan and the properties of others living within residential
neighborhoods near Highway 290.


(Emphasis added.)
	Because findings of fact are reviewed by the same standards as jury findings, we
uphold Finding of Fact No. 16.  See Workers Union v. Arriba, Ltd., 882 S.W.2d 576, 582 (Tex.
App.--Houston [1st Dist.] 1994, no writ).  In light of the evidence that Cowan complained to
TxDOT about the nuisance created by the direction of the floodlights, accompanied by TxDOT's
failure to remedy the situation, we hold that TxDOT was amenable to suit under the theory of non-negligent nuisance.  Therefore, we overrule TxDOT's fifth issue.
CONCLUSION
	We reverse the district court's damage award and remand to that court to obtain a
determination by the General Land Office in accordance with section 203.058(e) of the Texas
Transportation Code.  Having sustained TxDOT's third issue, we reverse that portion of the district
court's judgment declaring that TxDOT violated the administrative code and render judgment
denying Sunset Valley's request for declaratory relief.  The district court's judgment is in all other
respects affirmed. 


 
					Marilyn Aboussie, Chief Justice
Before Chief Justice Aboussie, Justices Yeakel and Puryear
Affirmed in Part; Reversed and Remanded in Part; Reversed and Rendered in Part
Filed:   August 30, 2002
Publish
1.   Article 1, section 17 of the Texas Constitution provides: 

No person's property shall be taken, damaged or destroyed for use or applied to
public use without adequate compensation being made, unless by the consent of
such person; and, when taken, except for the use of the State, such compensation
shall be first made, or secured by a deposit of money. . . . 

Tex. Const. art. 1, § 17 (emphasis added).
2.   While TxDOT does not expressly challenge the district court's ruling concerning the
transportation code in the wording of any issue, its discussion of its first issue includes the contention
that "the Transportation Code expressly excludes cities from its provisions relating to
compensation."  We disagree.
3.   In a letter brief, Sunset Valley contends that "[TxDOT's] interpretation and application of
their own rules potentially interferes with Sunset Valley's right and privilege to abate nuisances."
(Emphasis added.)  Assuming the cases cited by Sunset Valley support this contention, the terms
"right and privilege " differ from constitutional or vested rights.  A "vested right" is "[a] right that
so completely and definitely belongs to a person that it cannot be impaired or taken away without
the person's consent."  Black's Law Dictionary 1324 (7th ed. 1999).  Because the city does not
provide a single source of authority for the contention that its "right and privilege to abate nuisances"
is vested or constitutional, we sustain TxDOT's third issue.  See Tex. R. App. P. 38.1(h).
4.   The lack of Burkett's testimony on the subject of high mast floodlighting is illustrated in
the following exchange on redirect examination:

Q:	Okay.  Is high mast lighting used on other roadways?

A:	Yes.

Q:	And is it used in other states?

A:	Yes.

