IN THE TENTH COURT OF APPEALS
No. 10-19-00130-CV
TEXAS DEPARTMENT OF TRANSPORTATION, Appellant v.
KATHLEEN GALLOWAY-POWE, INDIVIDUALLY AND AS REPRESENTATIVE OF THE ESTATES OF MANLEY D. GALLOWAY, DECEASED AND ELFRIEDE GALLOWAY, DECEASED, Appellee
From the 52nd District Court Coryell County, Texas Trial Court No. DC-17-46346
MEMORANDUM OPINION
Manley and Elfriede Galloway were killed in a car accident after another driver
failed to yield the right-of-way and turned left in front of the Galloways’ vehicle. The
Galloways’ daughter, Kathleen Galloway-Powe, sued the Texas Department of
Transportation for wrongful death and survivor actions. TxDOT filed a motion to
dismiss for lack of jurisdiction alleging its sovereign immunity had not been waived.
After a hearing, the trial court denied TxDOT’s motion. Because the trial court erred in Tex. Dep’t of Trans. v. Galloway-Powe Page 1 denying TxDOT’s motion to dismiss for lack of jurisdiction, the trial court’s order is
reversed, TxDOT’s motion is granted, and judgment is rendered dismissing Powe’s
claims for want of jurisdiction.
SOVEREIGN IMMUNITY
A unit of state government is immune from suit and liability unless the state
consents. DART v. Whitley, 104 S.W.3d 540, 542 (Tex. 2003). In a suit against a
governmental unit, the plaintiff must affirmatively demonstrate the court's jurisdiction
by alleging a valid waiver of immunity. Id.
A governmental unit may be sued if the Legislature has waived its immunity with
clear and unambiguous language. Harris County v. Annab, 547 S.W.3d 609, 613 (Tex.
2018). As relevant to the claims raised here, under the Texas Tort Claims Act's limited
waiver of sovereign immunity—and absent any exception to the waiver—a
governmental unit can be liable for "personal injury and death so 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." See TEX. CIV. PRAC. &
REM. CODE § 101.021(2); Tex. Dep't of Criminal Justice v. Rangel, 595 S.W.3d 198, 205 (Tex.
2020); City of San Antonio v. Hartman, 201 S.W.3d 667, 672 (Tex. 2006) (noting that the Act
provides a few exceptions "in which its waiver provisions do not apply").
Plea to the Jurisdiction
Sovereign immunity implicates a trial court's subject matter jurisdiction and is
properly asserted in a plea to the jurisdiction. Tex. Dep't of Criminal Justice v. Rangel, 595
S.W.3d 198, 205 (Tex. 2020). Generally, we review the trial court's ruling on a plea to the
Tex. Dep’t of Trans. v. Galloway-Powe Page 2 jurisdiction de novo. Houston Belt & Terminal Ry. Co. v. City of Houston, 487 S.W.3d 154,
160 (Tex. 2016).
"A jurisdictional plea may challenge the pleadings, the existence of jurisdictional
facts, or both." Alamo Heights Indep. Sch. Dist. v. Clark, 544 S.W.3d 755, 770 (Tex. 2018).
When a plea to the jurisdiction challenges the pleadings, we determine if the pleader has
alleged facts that affirmatively demonstrate the court's jurisdiction by alleging a valid
waiver of immunity. See Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226
(Tex. 2004); Dallas Area Rapid Transit v. Whitley, 104 S.W.3d 540, 542 (Tex. 2003). This is a
question of law which is reviewed de novo. Miranda, 133 S.W.3d at 226. In determining
whether the plaintiff has met that burden, we liberally construe the pleadings, taking all
factual assertions as true and looking to the plaintiff's intent. City of Ingleside v. City of
Corpus Christi, 469 S.W.3d 589, 590 (Tex. 2015).
However, when a plea to the jurisdiction challenges the existence of jurisdictional
facts, we look beyond the pleadings and consider evidence submitted by the parties
"when necessary to resolve the jurisdictional issues raised." Dep't of Criminal Justice v.
Rangel, 595 S.W.3d 198, 205 (Tex. 2020) (quoting Miranda, 133 S.W.3d at 227). In this
instance, our standard of review generally mirrors that of a traditional summary
judgment in that a plaintiff must raise a genuine issue of material fact to overcome the
challenge to the trial court's jurisdiction. Rangel, 595 S.W.3d at 205. Whether undisputed
evidence of jurisdictional facts establishes a trial court's jurisdiction is a question of law.
Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004). To determine
whether a plaintiff has met that burden, "we take as true all evidence favorable to" the
plaintiff and "indulge every reasonable inference and resolve any doubts in the Tex. Dep’t of Trans. v. Galloway-Powe Page 3 [plaintiff's] favor." Rangel, 595 S.W.3d at 205 (quoting Miranda, 133 S.W.3d at 228).
PLAINTIFF’S PETITION
Powe raised two causes of action in her Original Petition: a “Survival Action” and
a “Wrongful Death” action. She alleged her causes of action were brought under the
Texas Tort Claims Act and that the trial court had jurisdiction over them because the
TTCA waives sovereign immunity for claims, such as Powe’s, involving personal injury
or death caused by (1) the condition of a traffic control device and the claim is not exempt
under Texas Civil Practice and Remedies Code § 101.060; 1 and (2) a premises defect that
poses an unreasonable risk of harm about which TxDOT had actual knowledge and the
Galloways did not, and for which TxDOT would be liable under Texas law if it were a
private person.
In each of her causes of action, Powe alleged personal injury and death as a result
of a defective condition or use of tangible personal property regarding the traffic signal
devise installed and used by TxDOT. Powe alleged that TxDOT installed and used traffic
signal control devices not in conformity with applicable governmental regulations,
specifically “[t]he controlling Federal Highway Administration (FWHA) regulations
applicable and required for signal control devises…,” had actual notice of the dangerous
condition created by the use of the traffic signal control devices, and failed to remedy that
1 Section 101.060, as it applies to Powe, provides:
(a) This chapter does not apply to a claim arising from:
*** (2) the absence, condition, or malfunction of a traffic or road sign, signal, or warning device unless the absence, condition, or malfunction is not corrected by the responsible governmental unit within a reasonable time after notice….
Tex. Dep’t of Trans. v. Galloway-Powe Page 4 condition. Additionally, Powe contended the Galloways’ injuries were proximately
caused by TxDOT’s breach of its duty, and no exception to the waiver of immunity barred
the claims.
Powe also alleged in each of her claims that the intersection where the accident
occurred was a defective condition that posed an unreasonable risk of harm, TxDOT had
actual knowledge of the dangerously defective condition because it knew the
intersection, as constructed, would and did cause an obstruction of view of approaching
traffic, and the condition constituted a special defect. In the alternative, Powe asserted
that the intersection was a premises defect which posed an unreasonable risk of harm
about which TxDOT knew or should have known. Under either, Powe contended TxDOT
had a duty to make the premises safe by either warning of the dangerous condition or
eliminating the risk of harm, TxDOT did neither, the Galloways’ injuries were
proximately caused by TxDOT’s breach of its duty, and no exception to the waiver of
immunity barred the claims.
ISSUES
In two issues, TxDOT contends:
1) it retains sovereign immunity for discretionary actions, and
2) Powe’s claims are barred by the Texas Tort Claims Act because they do not fit
within the narrow waiver of sovereign immunity for premises defect claims.
Issue One—Discretionary Function Exception
TxDOT first asserts that it retains sovereign immunity for its design decisions
regarding both the signal to be used and the construction of the intersection because those
decisions are discretionary pursuant to an exception found in section 101.056 of the Texas Tex. Dep’t of Trans. v. Galloway-Powe Page 5 Tort Claims Act; and thus, TxDOT is immune from suit. See TEX. CIV. PRAC. & REM CODE
§ 101.056.
Often referred to as “the discretionary function exception,” a governmental unit
retains its immunity pursuant to section 101.056 for claims based on (1) the failure to
perform an act that the unit is not required by law to perform; or (2) the 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 governmental unit’s discretion. Id.; Tarrant Reg'l Water Dist. v. Johnson, 572 S.W.3d
658, 665 (Tex. 2019). In other words, section 101.056 generally preserves immunity not
only for the State's public policy decisions, but also for the State's failure to act when no
particular action is required by law. Tarrant Reg'l Water Dist., 572 S.W.3d at 662.
Consequently, immunity is not waived in suits based on discretionary acts. See Tex. Dep't
of Transp. v. Ramirez, 74 S.W.3d 864, 866-67 (Tex. 2002) (per curiam); State v. Burris, 877
S.W.2d 298, 299 (Tex. 1994).
An act is discretionary if it requires exercising judgment and the law does not
mandate performing the act with such precision that nothing is left to discretion or
judgment. State v. Rodriguez, 985 S.W.2d 83, 85 (Tex. 1999); City of Lancaster v. Chambers,
883 S.W.2d 650, 654 (Tex. 1994). Whether a governmental activity is discretionary is a
question of law. State v. San Miguel, 2 S.W.3d 249, 251 (Tex. 1999).
Intersection Design
We begin with Powe’s allegation in each of her causes of action that the
intersection, itself, was a defective condition or a premises defect. Specifically, she
contended that, because of the contour of highway, the intersection was constructed in Tex. Dep’t of Trans. v. Galloway-Powe Page 6 such a way that vehicles approaching the intersection from the north in a southbound
direction essentially disappeared from the view of the northbound traffic seeking to make
a left-hand turn which posed an unreasonable risk of harm. TxDOT asserted in its motion
to dismiss that these claims for each cause of action related solely to TxDOT’s design of
the intersection of the accident, and thus, Powe’s pleadings negated a waiver of
immunity. We agree that TxDOT retains immunity as to Powe’s claims about the design
of the intersection.
Decisions about highway or roadway design are discretionary, and the
governmental entity responsible may not be sued for such decisions. State v. San Miguel,
2 S.W.3d 249, 251 (Tex. 1999); State v. Rodriguez, 985 S.W.2d 83, 85 (Tex. 1999) (finding that
the design of highway and lack of barrier in median between north and southbound lanes
reflected discretionary decisions for which TxDOT retained immunity); Harris County v.
Estate of Ciccia, 125 S.W.3d 749, 753 (Tex. App.—Houston [1st Dist.] 2003, pet. denied)
("The design of a roadway is a discretionary function involving many policy decisions;
thus, the responsible governmental unit's sovereign immunity is not waived for flawed
roadway design."). See also State v. Burris, 877 S.W.2d 298, 299 (Tex. 1994) (premises and
special defect theories cannot bypass the State's immunity for discretionary roadway
design under section 101.056 of the Tort Claims Act.).
Powe denies in her brief on appeal that her underlying complaint is about the
design of the intersection. Rather, she contends she complained that the intersection, as
designed, required correction or warning. This is a distinction without a difference.
Powe pled that the intersection was constructed in such a way that vehicles approaching
Tex. Dep’t of Trans. v. Galloway-Powe Page 7 the intersection from the north in a southbound direction essentially disappeared from
the view of the northbound traffic seeking to make a left-hand turn which posed an
unreasonable risk of harm. Based on the pleadings, the trial court could not reach the
issue of correction or warning without determining the existing intersection design
created a defective condition or a premises defect.
Further, there were no pleadings or evidence that any law required TxDOT to
design the intersection in a certain way. As we stated previously, there is, however,
caselaw that the design of a roadway or highway is discretionary. Applying the
controlling caselaw, the design of the intersection at issue here is a discretionary act.
Thus, Powe’s pleadings did not affirmatively establish a waiver of TxDOT’s immunity
because, pursuant to the discretionary function exception of section 101.056, the Tort
Claims Act’s waiver of immunity does not apply to Powe’s claims.
Accordingly, the trial court erred in denying TxDOT’s motion to dismiss Powe’s
claims under each cause of action regarding the design of the intersection.
Type of Signal
Powe also alleged in each of her causes of action that TxDOT installed and used
traffic signal control devices not in conformity with applicable governmental regulations,
specifically, federal highway regulations. In its motion to dismiss, TxDOT again relied
on section 101.056 of the Tort Claims Act to assert that the use of a particular traffic signal
was within TxDOT’s discretion, and thus, not subject to the Tort Claims Act’s waiver of
immunity. Powe responded that TxDOT had no discretion to use the wrong type of
signal because the National Manual on Uniform Traffic Control Devices preempts the
Tex. Dep’t of Trans. v. Galloway-Powe Page 8 Texas Manual on Uniform Traffic Control Devices and, if any device is used, requires the
use of a particular traffic control device. Thus, her argument continued, because a
particular traffic control device was required by “federal law” and TxDOT did not use
the required traffic control device, immunity was waived.
Manual on Uniform Traffic Control Devices
The National Manual is “recognized as the national standard for all traffic control
devices installed on any street, highway, bikeway, or private road open to public travel
in accordance with 23 U.S.C. 109(d) and 402(a).” NATIONAL MANUAL ON UNIFORM
TRAFFIC CONTROL DEVICES, 2009, Introduction, p. 1-1. The location, form and character
of…traffic signals installed or placed by any public authority or other agency, shall be
subject to the approval of the State transportation department with the concurrence of
the Secretary [of Transportation]…. 23 USCS §§ 101; 109(d).
States and other Federal agencies may have their own manuals, but they must be
in substantial conformance with the National Manual. 23 C.F.R. § 655.603(b)(1). Thus,
Federal regulations explicitly allow for and anticipate the implementation of both a
national manual and state-specific manuals. See id. “Substantial conformance” means
that the state’s manual will conform, at a minimum, to the standard statements included
in the National Manual. Id. FHWA Division Administrators will approve state manuals
”that are in substantial conformance” with the National Manual. Id. By allowing each
state to submit its own version of the MUTCD for review and approval by the FHWA,
federal regulations allow both a national manual and a state manual to coexist.
Relevant to this case, the executive director of TxDOT certified the 2011 Texas
Manual. Further, the FHWA determined that the 2011 Texas Manual is in substantial Tex. Dep’t of Trans. v. Galloway-Powe Page 9 conformance with the National Manual.
Is it Law?
It is well-established that compliance with the Texas Manual is not mandatory.
Brazoria Cty. v. Van Gelder, 304 S.W.3d 447, 454 (Tex. App.—Houston [14th Dist.] 2009,
pet. denied); see State Dep't of Highways & Pub. Transp. v. King, 808 S.W.2d 465, 466 (Tex.
1991) (“It is the intent that the provisions of this Manual be standards for traffic control
devices installation, but not a legal requirement for installation.”). See also TEXAS MANUAL
ON UNIFORM TRAFFIC CONTROL DEVICES, 2006, Revision 1, Introduction, p. ix (“The
provisions of this Manual do not create mandatory duties, as opposed to discretionary
duties, in the legal sense under the Texas Tort Claims Act and elsewhere…This Manual
does not establish a mandatory legal duty to install particular traffic control devices.”);
TEXAS MANUAL ON UNIFORM TRAFFIC CONTROL DEVICES, 2011, pp. I-1-I-2 (same).
Nevertheless, Powe asserts compliance with the National Manual is mandatory; thus,
requiring compliance.
Powe points to a few provisions in the National Manual and an affidavit from a
consulting traffic engineer to support her argument that TxDOT was required “by law”
to follow federal regulations. While the provisions of the National Manual introduced
into evidence at the hearing on TxDOT’s plea to the jurisdiction use the word “shall,”2
the Standard3 in Section 1A.09 of the National Manual states, “This Manual describes the
2 See e.g., NATIONAL MANUAL ON UNIFORM TRAFFIC CONTROL DEVICES, 2009, § 4D.20 (“If a separate left-turn signal face is being operated in a protected/permissive left-turn mode, a CIRCULAR GREEN signal indication shall not be used in that face.”) (emphasis added).
3 Each section in both the National Manual and the Texas manual are divided into Standards, Guidance, Options, and Support. Tex. Dep’t of Trans. v. Galloway-Powe Page 10 application of traffic control devices but shall not be a legal requirement for their
installation.” Powe contends this only means TxDOT was not required to install any
traffic control device at the intersection at all. But, her argument continues, when it
installed a particular device, TxDOT was required to comply with the National Manual.
We disagree with Powe.
In the 2003 National Manual, the Guidance section under 1A.09 stated, “the
decision to use a particular device at a particular location should be made on the basis of
either an engineering study or the application of engineering judgment” (emphasis
added) and “this Manual should not be considered a substitute for engineering
judgment.” That language was removed from the 2009 National Manual. But in an
official interpretation of the removal, the FHWA explained that the removal was not
intended to change the previously existing meaning of the Standard. Thus, the FHWA
said, States could maintain or adopt language in their state manuals in conformance with
the language of 1A.09 from the 2003 National Manual without jeopardizing their
“substantial conformance” with the 2009 Manual. Texas did just that, and the executive
director of TxDOT certified the 2011 Texas Manual and the FHWA approved it as
substantially conforming with the National Manual. Thus, in Texas, and with the
approval of the FHWA, the decision to place a particular device at a particular location is
not controlled exclusively by the National Manual. Consequently, the National Manual
cannot be considered “law” as that term is used in section 101.056 of the Tort Claims Act.
Regarding Powe’s consulting expert’s affidavit, the expert could not say during
his deposition that TxDOT was “legally obligated” to install traffic control devises
recommended in the National Manual. Yet, two months later, he stated in his affidavit Tex. Dep’t of Trans. v. Galloway-Powe Page 11 attached to Powe’s response to TxDOT’s motion to dismiss that traffic control devises
were required to comply with the 2009 National Manual standard and TxDOT did not
have the discretion to ignore or fail to follow the 2009 National Manual. No support for
this statement is included in the affidavit. Thus, the statement is conclusory at best.
Powe also points to case authority for the proposition that under certain
circumstances, federal regulations have the “force and effect” of law, Congress can
preempt state law, and Congress can condition federal funding on state conformity to
federal regulations; thus, her argument continues, the National Manual controls. None
of the cases cited, however, hold that the National Manual is mandatory as to traffic
control signals, is “law” as contemplated by section 101.056 of the Texas Tort Claims Act,
or preempts Texas law, specifically section 101.056. 4
Powe did not plead in her petition, analyze, or present evidence on the steps
necessary to show a federal preemption of section 101.056. See R.R. Comm'n v. Lone Star
Gas Co., 844 S.W.2d 679, 690-691 (Tex. 1992) (setting out how Congress’s preemption of
state law may be determined). Nor did Powe plead, analyze, or present evidence that
accepting federal funding waives TxDOT’s immunity for tort claims. See Hurst v. Tex.
Dep't of Assistive & Rehabilitative Servs., 482 F.3d 809, 811 (5th Cir. 2007) (state's receipt of
4 See Chrysler Corp. v. Brown, 441 U.S. 281, 99 S. Ct. 1705, 60 L. Ed. 2d 208 (1979) (discussing the applicability of the Trade Secrets Act, codified by Congress at 18 USCS § 1905); Frank v. Delta Airlines, 314 F.3d 195 (5th Cir. 2002) (discussing preemption of state-law tort action by codified FFA regulations which specified preemption and the Omnibus Transportation Employee Testing Act of 1991); Stevenson v. Fort Worth & W. R.R. Co., No. 10-16-00244-CV, 2017 Tex. App. LEXIS 9402 (Tex. App.—Waco Oct. 4, 2017, pet. denied) (mem. op.) (discussing the preemption of a state-law tort action by specific provisions of the Federal Railroad Safety Act). See also South Dakota v. Dole, 483 U.S. 203, 107 S. Ct. 2793 (1987) (loss of federal funding minimal when State set drinking age lower than 21, not a compulsion to comply and not a violation of the Spending Clause).
Tex. Dep’t of Trans. v. Galloway-Powe Page 12 federal funds does not automatically constitute a waiver of immunity); Wion v. Thayler,
No. 10-09-00369-CV, 2010 Tex. App. LEXIS 9153, at *6 (Tex. App.—Waco Nov. 17, 2010,
no pet.) (mem. op.) (same). The arguable “requirement” to comply with the manual is so
that the State can, or will, qualify for federal funds for highway projects or this one in
particular. We do not believe that acceptance of federal funds, if any, for general highway
funding, for the specific project generally, or specifically, for the device in question,
would operate to waive the State’s sovereign immunity; rather, it may expose the State
to loss or return of federal funding. See e.g. 23 U.S.C.S. § 158(a), (b) (the withholding of
funds and its effect for non-compliance with the national minimum drinking age); 23
U.S.C.S. § 131(b) (Federal-aid highway funds reduced by 10% to any State which has not
made provision for effective control of the erection and maintenance of outdoor
advertising signs, displays, and devices along the Interstate Highway System). Breach
of the agreement, if any, with the federal government for funding of the specific project
or device, without some specific authority, which we have not found, does not turn every
citizen using the project or device into a private United States attorney general to enforce
the agreement, if any, between the federal and state governments by waiving sovereign
immunity for torts that may result from the State’s failure to strictly comply with the
manual.
Relevant case authority is sparse, and we have found no case holding that the
National Manual as to traffic control devices is mandatory in its compliance or that it is
the type of “law” required by section 101.056 to waive immunity. However, we have
found a few cases tending to show the opposite. In the only Texas state court decision in
this area of the law, the Fort Worth Court of Appeals analyzed certain provisions of the Tex. Dep’t of Trans. v. Galloway-Powe Page 13 National Manual and determined those provisions did not dispense with TxDOT’s
discretionary duty to use certain warning signs and traffic control devices and any failure
to comply with the National Manual did not waive immunity under section 101.060 (a)(1)
of the Texas Civil Practice and Remedies Code. 5 Tex. DOT v. Andrews, 155 S.W.3d 351,
359-360 (Tex. App.—Fort Worth 2004, pet. ref’d). Further in an unpublished opinion, a
United States District Court determined that the National Manual, itself, is not a federal
law, but merely advisory. See Peruta v. City of Hartford, No. 3:09-cv-1946 (VLB), 2012 U.S.
Dist. LEXIS 120228, at *42, *44 (D. Conn. 2012). See also Daniel E. Davis & Davis Heavy Haul
Transp., Inc. v. Union Pac. R.R. Co., Civil Action No. B: 12-212, 2015 U.S. Dist. LEXIS
189428, at *5 n.3 (S.D. Tex. 2015) (holding summary judgment appropriate because the
Federal Railroad Safety Act completely preempts state law regarding adequate warning
devices at railroad crossings but noting sign at the crossing was sanctioned but not
mandated by the National Manual, citing Peruta).
Regardless of case authority or lack thereof, based on the record before us, neither
Powe’s pleadings, nor the evidence presented, established, or created a genuine issue of
material fact, that TxDOT was required by law to install a certain type of traffic signal and
its failure to do so waived TxDOT’s immunity. See TEX. CIV. PRAC. & REM. CODE § 101.056.
Accordingly, the trial court erred in denying TxDOT’s motion to dismiss Powe’s
claims under each cause of action regarding the traffic signal used by TxDOT.
TxDOT’s first issue is sustained.
5 We recognize that the provisions analyzed and the statute authorizing waiver of immunity are not the same as in this case. However, we still find Andrews to be instructive in the case before us. Tex. Dep’t of Trans. v. Galloway-Powe Page 14 CONCLUSION
Because we have sustained TxDOT’s first issue and determined the trial court
erred in denying TxDOT’s motion to dismiss each of Powe’s causes of action, we need
not address TxDOT’s remaining issue. Therefore, we reverse the trial court’s Order on
Defendant Texas Department of Transportation's Motion To Dismiss For Lack Of
Jurisdiction which denied TxDOT’s motion, grant the motion, and render judgment
dismissing Powe’s claims against TxDOT for want of jurisdiction.
TOM GRAY Chief Justice
Before Chief Justice Gray, Justice Johnson, and Justice Davis 6 (Justice Johnson dissenting) Reversed and rendered Opinion delivered and filed August 4, 2021 [CVO6]
6 The Honorable Rex Davis, Senior Justice (Retired) of the Tenth Court of Appeals, sitting by assignment of the Chief Justice of the Texas Supreme Court. See TEX. GOV'T CODE §§ 74.003, 75.002, 75.003. Tex. Dep’t of Trans. v. Galloway-Powe Page 15