Opinion
No. 04-21-00094-CV
01-26-2022
CITY OF EAGLE PASS, Appellant v. Isabel Velasquez PEREZ, individually and a/n/f of Vanessa Velasquez, Minor, Appellee
APPELLANT ATTORNEY: Albert Lopez, Law Offices of Albert Lopez, 1937 NE Loop 410, Ste. 350, San Antonio, TX 78217. APPELLEE ATTORNEY: Ann Stehling, William J. Cobb III, Cobb & Counsel PLLC, 100 Congress Ave., Ste. 2000, Austin, TX 78701-2745, Bill Cobb, Cobb & Counsel PLLC, 401 Congress Ave., Ste. 1540, Austin, TX 78701, Mariliza Williams, Alfonso Nevarez, Nevarez Law Group P.C., 780 S. Rio Grande St., Eagle Pass, TX 78852.
APPELLANT ATTORNEY: Albert Lopez, Law Offices of Albert Lopez, 1937 NE Loop 410, Ste. 350, San Antonio, TX 78217.
APPELLEE ATTORNEY: Ann Stehling, William J. Cobb III, Cobb & Counsel PLLC, 100 Congress Ave., Ste. 2000, Austin, TX 78701-2745, Bill Cobb, Cobb & Counsel PLLC, 401 Congress Ave., Ste. 1540, Austin, TX 78701, Mariliza Williams, Alfonso Nevarez, Nevarez Law Group P.C., 780 S. Rio Grande St., Eagle Pass, TX 78852.
Sitting: Rebeca C. Martinez, Chief Justice, Beth Watkins, Justice, Liza A. Rodriguez, Justice
MEMORANDUM OPINION
Opinion by: Rebeca C. Martinez, Chief Justice
This is an appeal from an order denying the plea to the jurisdiction filed by the City of Eagle Pass in a personal injury suit brought by appellee Isabel Velasquez Perez, Individually and as Next Friend of her daughter, Vanessa Velasquez. In a single issue, the City contends it retained immunity against Isabel's claims because they arise out of discretionary decisions relating to its governmental functions. We affirm in part, and reverse and render in part. BACKGROUND
This case arises from an accident that occurred on Garrison Street in Eagle Pass, Texas. Isabel's petition alleged that Vanessa was attempting to cross Garrison Street in Eagle Pass after completing her work shift at Burger King, at about 10:30 p.m., when a vehicle operated by Anna Karina De La Garza suddenly struck Vanessa. Vanessa sustained severe injuries as a result of the accident.
Isabel brought suit against De La Garza to recover damages for the personal injuries Vanessa sustained arising out of the accident, alleging that Vanessa's injuries were caused by De La Garza's negligence. Thereafter, Isabel amended her petition to include additional defendants, including the City. As to the City, Isabel complained the City controlled and maintained Garrison Street as a public thoroughfare in Eagle Pass; had a duty to maintain the roadway, including the streetlights responsible for lighting the roadway, in a manner that provides sufficient and proper lighting to travelling vehicles and pedestrians; and carelessly, recklessly, and negligently maintained Garrison Street by both permitting the streetlights as placed and not providing adequate lighting to properly illuminate Garrison Street. Isabel alleges the City's failure to protect against an unreasonable risk of harm proximately caused her daughter's injuries.
The City filed a plea to the jurisdiction, contending that Isabel's claims are barred under section 101.056 of the Texas Tort Claims Act ("TTCA") because its decisions with regard to the lighting on the streets near the accident were discretionary acts. Both parties presented evidence as part of the jurisdictional proceeding. After a hearing, the trial court denied the City's plea without specifying a basis for the denial. This interlocutory appeal followed.
STANDARD OF REVIEW
Governmental immunity from suit defeats a court's subject matter jurisdiction and is properly asserted in a plea to the jurisdiction. Tex. Dep't of Parks & Wildlife v. Miranda , 133 S.W.3d 217, 228 (Tex. 2004) ; City of San Antonio v. Cervantes , 521 S.W.3d 390, 394 (Tex. App.—San Antonio 2017, no pet.). Whether a trial court has subject matter jurisdiction is a question of law subject to de novo review. Sampson v. Univ. of Tex. at Austin , 500 S.W.3d 380, 384 (Tex. 2016) ; Cervantes , 521 S.W.3d at 394. If, as here, a plea to the jurisdiction challenges the existence of jurisdictional facts, the reviewing court must determine whether a fact question on the jurisdictional issue exists by considering relevant evidence. City of Corsicana v. Stewart , 249 S.W.3d 412, 414 (Tex. 2008). If the evidence raises a fact question on jurisdiction, the plea cannot be granted. Id. If the relevant evidence is undisputed or fails to raise a fact question, the trial court must rule on the plea as a matter of law. Id.
APPLICABLE LAW
As a governmental unit, the City of Eagle Pass is immune from both suit and liability unless its immunity is waived under the TTCA. City of San Antonio v. Tenorio , 543 S.W.3d 772, 775 (Tex. 2018) ; see TEX. CIV. PRAC. & REM. CODE ANN. § 101.001(3)(B) (defining "governmental unit" to include political subdivisions of the state, including cities). The Legislature, however, created a limited waiver of that immunity, permitting suits against governmental units in three areas: (1) injuries caused by the operation or use of publicly-owned vehicles or equipment; (2) injuries caused by a condition or use of tangible personal or real property; and (3) injuries caused by premises defects. TEX. CIV. PRAC. & REM. CODE ANN. §§ 101.021, 101.022, 101.025(a) ; see State v. Shumake , 199 S.W.3d 279, 283 (Tex. 2006). Section 101.056 of the TTCA, known as the "discretionary function exception," provides that this waiver of immunity does not apply to claims based on: "(1) the failure of a governmental unit to perform an act that the unit is not required by law to perform; or (2) a governmental unit's decision not to perform an act or on its failure to make a decision on the performance or nonperformance of an act if the law leaves the performance or nonperformance of the act to the discretion of the governmental unit." TEX. CIV. PRAC. & REM. CODE ANN. § 101.056 ; see Tarrant Reg'l Water Dist. v. Johnson , 572 S.W.3d 658, 667–68 (Tex. 2019). Section 101.056 "preserves immunity ... for the state's failure to act when no particular action is required by law." City of San Antonio v. Herrera , No. 04-18-00881-CV, 2019 WL 3937279, at *2 (Tex. App.—San Antonio Aug. 21, 2019, no pet.) (mem. op.) (citation omitted). "It does not protect the state's failure to act, however, when a particular action is required by law." Tex. Dep't of Transp. v. Markham , No. 04-18-00812-CV, 2019 WL 3937277, at *4 (Tex. App.—San Antonio Aug. 21, 2019, pet. denied) (mem. op.) (citing Johnson , 572 S.W.3d at 665 ).
Section 101.056 ’s "textual distinction—‘discretion’ versus ‘required by law’—is not always easily applied on its own terms, which is why interpretational rubrics like ‘design versus maintenance’ and ‘policy-level versus operational-level’ have arisen and serve an important purpose." Johnson , 572 S.W.3d at 666 ; see Flynn , 228 S.W.3d at 657 (describing two tests that: (1) distinguish "between policy-level decisions and operational-level decisions"; and (2) distinguish "the design of public works, for which there is immunity, from their maintenance, for which there is not immunity."). "But the interpretational rubrics are only useful to the extent they yield results faithful to the statute's textual distinction between discretionary and non-discretionary government decisions." Johnson , 572 S.W.3d at 666 (citing City of Rockwall v. Hughes , 246 S.W.3d 621, 628 (Tex. 2008) ). Therefore, "while the ‘design versus maintenance’ dichotomy is a useful way to think about how section 101.056 operates with respect to public works, it is not an element of the statute." Id. at 667.
ANALYSIS
On appeal, the City contends the trial court erred in denying its plea because its decision of how to allocate its financial resources for the design and maintenance of roadway illumination is a discretionary policy decision for which it retained immunity under section 101.056 of the TTCA related to discretionary decisions. See TEX. CIV. PRAC. & REM. CODE ANN. § 101.056. It also argues that the evidence shows the streetlights near the accident were functioning at the time of the accident. Isabel contends that Section 101.056 does not apply because the City had a non-discretionary duty to maintain the streetlights near the accident and failed to do so. According to Isabel, the evidence raises fact issues regarding whether the City failed to adequately maintain streetlights near the accident even though it had a duty to do so.
In her petition, Isabel alleged that the City negligently maintained Garrison Street by (1) permitting the streetlights as placed; and (2) not providing adequate lighting to properly illuminate Garrison Street. Isabel alleged that the City knew or should have known that the streetlights and/or lack of illumination on Garrison Street constituted a dangerous condition or hazard to traffic and persons using the roadway, and that such negligence proximately caused Vanessa's injuries.
Isabel seeks these claims in her amended petition in a paragraph under a section entitled "Negligence." We review the claims as two distinct claims that the City negligently maintained Garrison Street by: (1) permitting the streetlights as placed; and (2) not providing adequate lighting to properly illuminate Garrison Street. Cf. Thomas v. Long , 207 S.W.3d 334, 338 (Tex. 2006) (instructing it is proper to examine subject matter jurisdiction on a claim-by-claim basis because "it is proper for a trial court to dismiss claims over which it does not have subject matter jurisdiction but retain claims in the same case over which it has jurisdiction.").
We hold that the trial court erred in denying the City's plea to the jurisdiction on Isabel's claim that the City negligently maintained Garrison Street by permitting the streetlights as placed because this claim involves discretionary roadway design decisions excluded from liability under Section 101.056. See TEX. CIV. PRAC. & REM. CODE ANN. § 101.056 ; see also Tex. A&M Univ. Sys. v. Fraley , No. 07-20-00116-CV, 2021 WL 3282161, at *6 (Tex. App.—Amarillo July 30, 2021, pet. filed) (mem. op.) (holding that the University's decisions to eliminate a roadway and not install new traffic control or safety devices are discretionary roadway design decisions excluded from liability under Section 101.056 because "[t]he placement or non-placement of lighting, markings, and barricades are features of the roadway's design, not deficiencies in carrying it out") (citing Tex. Dep't of Transp. v. Ramirez , 74 S.W.3d 864, 867 (Tex. 2002) (per curiam) ). However, we hold that the trial court did not err in denying the City's plea to the jurisdiction on Isabel's claim that the City negligently maintained Garrison Street by not providing adequate lighting to properly illuminate the street because the evidence raises a fact issue about whether the City's failure to maintain the lights on the roadway concerned discretionary functions for which the City retained immunity under Section 101.056. See TEX. CIV. PRAC. & REM. CODE ANN. § 101.056.
The City attached to its plea the Municipal Maintenance Agreement it entered into with the State of Texas. In the agreement, the City agreed that it would "retain full responsibility for all items that affect property rights, life, health, etc. of property owners and dwellers adjacent to the State Highway routes and portions thereof" and that "any street lighting system may be installed by the City provided the City shall pay all cost of installation, maintenance and operation except in those installations specifically covered by separate agreements between the City and State." This is some evidence that the City was required by law to maintain the streetlights along Garrison Street.
In her response to the City's plea to the jurisdiction, Isabel presented evidence showing several lights near the accident were not working at the time of the accident. First, she presented discovery responses from De La Garza identifying two specific streetlights near the accident that were not functioning at the time of the collision. Second, Isabel presented deposition testimony of De La Garza stating she believed the lack of lighting in the area contributed to the accident. De La Garza also testified that she first saw Vanessa at the time of impact because it was so dark and the lights were off near the location where De La Garza struck her. The City attached to its plea the affidavit of Officer Guadalupe Escobar, the officer who responded to the accident. In the affidavit, Officer Escobar averred that he drove to the area of the accident with an on-board video camera and captured photos of the streets where the accident occurred. He "identified streetlights that were not on ... located around the intersection of Garrison and Hwy 57, and on the overpass leading to Garrison and Hwy 57." Finally, Isabel presented evidence from expert Gregory Brinkmeyer, who reviewed Officer Escobar's dashcam videos and concluded that "[s]everal illumina[t]es are not functioning. This is supported by deposition testimony that illumina[t]es are not continuously functioning."
This evidence raises a fact issue about whether the City's failure to maintain the lights on the roadway concerned discretionary functions for which the City retained immunity under Section 101.056. See TEX. CIV. PRAC. & REM. CODE ANN. § 101.056 ; see also Johnson , 572 S.W.3d at 670 ("A government that invites drivers onto a bridge may in some cases have no discretion other than to ‘maintain the lighting on a bridge designed to be illuminated.’ " (citing Flynn , 228 S.W.3d at 657–58 )); County of Cameron v. Brown , 80 S.W.3d 549, 557 (Tex. 2002) (holding allegations of "a malfunctioning block of artificial lighting that the defendants failed to maintain, causing a sudden and unexpected change in driving conditions" could constitute an "unreasonably dangerous condition" for which county could be liable under the TTCA). The City disputes this evidence and contends that video evidence shows the relevant light poles near the accident were, in fact, functioning before, during and after the accident. It asks this Court to "assign greater weight to the facts evident from the video recordings," find that the relevant lights near the accident were "working at the time of the accident, and hold that [Isabel] failed to raise a genuine issue of material fact concerning the lack of maintenance claim." However, it is disputed that the relevant lights were functioning at the time of the accident. The record includes admitted video evidence showing that several of the lights near the accident were not functioning at the time of the accident. Moreover, we cannot "assign greater weight" to specific evidence because we are not the factfinder responsible for weighing the evidence. See Miranda , 133 S.W.3d at 227–28 ; cf. Tex. Dep't of Pub. Safety v. Bonilla , 481 S.W.3d 646, 654–55 (Tex. App.–El Paso 2014) (holding plea to jurisdiction based on emergency exception properly denied where there was conflicting evidence about whether trooper slowed as necessary before running red light and whether he was distracted), rev'd & remanded on other grounds by 481 S.W.3d 640 (Tex. 2015).
Viewed in the light most favorable to Isabel, we hold that this evidence creates a fact question regarding whether the City was required by law to maintain the streetlights near the accident and failed to do so. See Johnson , 572 S.W.3d at 669 n.4 ("Conversely, we have never held that the design of a public work can never exceed a governmental entity's discretion or otherwise conflict with requirements of law. It plainly could, and in a hypothetical case, section 101.056 ’s protections might not apply to all decisions about the design of a public work."); TEX. CIV. PRAC. & REM. CODE ANN. § 101.056. Therefore, Section 101.056 does not immunize the City from Isabel's claim that the City negligently maintained Garrison Street by not providing adequate lighting to properly illuminate the street. See Miranda , 133 S.W.3d at 227–28 ("If the evidence creates a fact question regarding the jurisdictional issue, then the trial court cannot grant the plea to the jurisdiction, and the fact issue will be resolved by the fact finder.").
CONCLUSION
We affirm the trial court's order denying the City's plea to the jurisdiction as to Isabel's claim that the City negligently maintained Garrison Street by not providing adequate lighting to properly illuminate the street. However, we reverse the trial court's order denying the City's plea to the jurisdiction as to Isabel's claim that the City negligently maintained Garrison Street by permitting the streetlights as placed and we render judgment dismissing this claim without prejudice to refiling.
We render judgment dismissing Isabel's claim relating to placement of the lighting on the street, rather than remand, because the pleadings affirmatively negate the existence of the trial court's jurisdiction by revealing an incurable defect. See Harris Cty. v. Annab , 547 S.W.3d 609, 616 (Tex. 2018). A remand would serve no purpose because jurisdictional evidence demonstrates that Isabel's dismissed claim incurably falls outside any waiver of governmental immunity. See Miranda , 133 S.W.3d at 227 (instructing that a plaintiff's suit should be dismissed when either the pleadings alone or the jurisdictional evidence demonstrates that the plaintiff's suit incurably falls outside any waiver of immunity).