Opinion

NUMBER 13-00-192-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI

___________________________________________________________________

THE COUNTY OF HIDALGO,

Appellant,

v.

JOSE G. CANTU, SR., ET. AL., Appellees.

___________________________________________________________________

On appeal from the 275th District Court

of Hidalgo County, Texas.

___________________________________________________________________

O P I N I O N

Before Justices Hinojosa, Yañez, and Chavez

Opinion by Justice Yañez

Appellant, Hidalgo County, brings this interlocutory appeal to

challenge the denial of its plea to the jurisdiction in a case brought by

Jose Cantu and San Juana Cantu ("the Cantus"). We reverse and

render.

BACKGROUND

On September 14, 1994, an accident occurred at the intersection

of Alberta and Jackson roads, in Hidalgo County, Texas. The accident

happened when a car, driven by Oliver Gonzalez, traveling west on

Alberta road, collided with a car, driven by Jesus Garcia, Jr., traveling

north on Jackson Road. At the time of the accident, traffic on Alberta

road had the right-of-way, as there were stop signs controlling traffic

on Jackson Road. Garcia had ignored the stop sign and entered the

intersection, thus causing the collision. As a result of the wreck, Mari

Cruz Cantu was injured, and her brothers, Roberto Cantu and Jose G.

Cantu, Jr., were killed. This suit was filed by Jose and San Juana

Cantu, the parents of Mari, Robert and Jose, Jr.

The Cantus brought suit against Garcia and Hidalgo County. The

Cantus alleged that Hidalgo County was liable because the stop signs

on Jackson Road were insufficient to properly control the volume of

traffic using Jackson and Alberta roads, thus creating a dangerous

condition. The Cantus argue that because of the amount of traffic

passing through the intersection of Jackson and Alberta roads, the

intersection should have been a four-way stop. Hidalgo County filed a

plea to the jurisdiction, arguing that the County is immune from suit in

this case because the Cantus failed to show that their case qualified

under any of the statutory waivers of sovereign immunity created by the

Texas Tort Claims Act ("TTCA"). (1) The trial court denied the County's

plea to the jurisdiction, and the County filed an interlocutory appeal to

this Court. (2)

Standard of Review

A governmental entity is immune from suit unless that immunity

is waived. See Texas Dep't of Transp. v. Jones , 8 S.W.3d 636, 638

(Tex. 1999). A party suing a governmental entity must establish a

waiver of immunity either by reference to a statute or express legislative

permission. Id . Absent a waiver of immunity, a trial court lacks subject

matter jurisdiction. Id .

A plea to the jurisdiction is a dilatory plea by which a party

contests the trial court's authority to determine the subject matter of the

cause of action. State v. Benavides , 772 S.W.2d 271, 273 (Tex. App.--Corpus Christi 1989, writ denied). When reviewing a trial court's denial

of a plea to the jurisdiction, appellate courts look solely at the

allegations in the petition. Texas Ass'n of Bus. v. Texas Air Control Bd. ,

852 S.W.2d 440, 446 (Tex. 1993); Caspary v. Corpus Christi Downtown

Management Dist. , 942 S.W.2d 223, 225 (Tex. App.--Corpus Christi

1997, writ denied). The allegations in the pleadings are taken as true,

and are construed in the favor of the plaintiff. Texas Ass'n of Bus. , 852

S.W.2d at 446 . The plaintiff bears the burden of alleging facts that

affirmatively demonstrate the court's jurisdiction. Id .; City of Saginaw

v. Carter , 996 S.W.2d 1, 2 (Tex. App.--Fort Worth 1999, no pet.). If the

petition fails to allege jurisdictional facts, the plaintiff's suit is subject to

dismissal only when it is impossible to amend the pleadings to confer

jurisdiction. City of Saginaw , 996 S.W.2d at 3 ; Liberty Mut. Ins. Co. v.

Sharp , 874 S.W.2d 736, 739 (Tex. App.--Austin 1994, writ denied).

Whether a trial court has subject matter jurisdiction is a question of law.

American Pawn & Jewelry, Inc., v. Kayal , 923 S.W.2d 670, 672 (Tex.

App.--Corpus Christi 1996, writ denied).

Discussion

In their third amended petition, (3) the Cantus alleged that Hidalgo

County was liable under waivers of immunity contained in sections

101.0215, 101.022, and 101.060 of the TTCA. See Tex. Civ. Prac. &

Rem. Code Ann., §§ 101.215, 101.022, 101.060 (Vernon 1997 & Supp.

2000). The Cantus argued that the stop signs on Jackson Road were

inadequate to control traffic at the intersection of Jackson and Alberta

roads, thus creating a dangerous condition for which Hidalgo County

was liable. Hidalgo County argued, in their plea to the jurisdiction, that

the County is immune for decisions concerning the placement of stop

signs.

The waivers of immunity contained in the TTCA do not apply to

decisions by a governmental unit which the law leaves to the discretion

of the governmental unit. Tex. Civ. Prac. & Rem. Code Ann. § 101.056

(Vernon 1997). In other words, Hidalgo County remains immune for

decisions which are left to the County's discretion. Id . Whether a

governmental decision is discretionary is a question of law. Garza v.

State , 878 S.W.2d 671, 674-75 (Tex. App.--Corpus Christi 1994, no

writ).

Decisions concerning the initial installation of stop signs are

discretionary and governmental units are thus immune from suit in

cases arising from these types of decisions. Siders v. State , 970

S.W.2d 189, 192 (Tex. App.--Dallas 1998, writ denied); Johnson v.

Texas , 905 S.W.2d 394, 398 (Tex. App.--Austin 1995, no writ)

; Shives

v. State , 743 S.W.2d 714, 717 (Tex. App.--El Paso 1987, writ denied).

However once a governmental unit has decided to install a traffic sign,

the government has a duty to maintain the sign. See Tex. Civ. Prac. &

Rem. Code Ann. §§ 101.022 (b), 101.060(a)(2) (Vernon 1997); Lorig v.

City of Mission , 629 S.W.2d 699, 701 (Tex. 1982) (city has duty to

remedy the obstruction of a stop sign within a reasonable time of the

city receiving notice of the obstruction); State v. Gonzalez , 24 S.W.3d

533, 539 (Tex. App.--Corpus Christi 2000, no pet. h.) (State has a duty

to replace a stop sign removed or damaged by vandals when State has

knowledge of stop sign's absence). The Cantus have not alleged that

the stop signs on Jackson Road were obstructed, damaged, or missing;

they allege that the two stop signs were inadequate to control the traffic

at the intersection. The Cantus argue that the County should have

placed stop signs on Alberta Road, as well as the two on Jackson Road,

thus making the intersection a four-way stop. Hidalgo County's

decision to control traffic at the intersection of Alberta and Jackson

roads with stop signs on Jackson Road was discretionary. See Siders

v. State , 970 S.W.2d at 192 . However, this determination does not end

our inquiry into Hidalgo County's immunity, because the Cantus alleged

that the condition of the intersection constituted a special defect.

Hidalgo County has a duty to warn of special defects. Tex. Civ.

Prac. & Rem. Code Ann. § 101.060 (c)(Vernon 1997); State v. Rodriguez ,

985 S.W.2d 83, 85 (Tex. 1999). A special defect is a condition, such as

an excavation or roadway obstruction, which unexpectedly and

physically impairs a car's ability to travel on the road. Rodriguez , 985

S.W.2d at 85 ; State Dep't of Highways v. Payne , 838 S.W.2d 235, 238

(Tex. 1992).

The Cantus alleged that the intersection of Jackson and Alberta

roads constituted a special defect. In their brief, and at oral argument,

the Cantus argued that the increased population in the area served by

the two roads, as well as improvements to the roadway, led to a

marked increase in traffic using the intersection. The Cantus contended

that this increase rendered the stop signs on Jackson Road inadequate

to control the traffic at the intersection, and supported this contention

by referring to several accidents which have occurred at the

intersection.

Although the Cantus have raised questions about the safety of the

intersection, they have not described any condition of the intersection

of Jackson and Alberta roads which would constitute a special defect

which would waive the County's immunity. The increase in traffic on

Jackson and Alberta roads is not a condition that "unexpectedly and

physically impairs a car's ability to travel on the road." Therefore, it is

not a special defect which would result in a waiver of Hidalgo County's

immunity and Hidalgo County is immune from suit in this case.

Conclusion

After reviewing the record, and construing the pleadings in favor

of the Cantus, we conclude that the Cantus's petition affirmatively

shows that this case does not fall within the waivers of immunity

contained in the TTCA. The Cantus did not plead facts affirmatively

showing that the trial court had subject-matter jurisdiction. Because

governmental immunity defeats a trial court's subject mater jurisdiction,

we hold the trial court erred in denying Hidalgo County's plea to the

jurisdiction. Therefore, we sustain Hidalgo County's sole issue on

appeal.

We REVERSE the trial court's order denying Hidalgo County's plea

to the jurisdiction and RENDER judgment in favor of Hidalgo County on

its plea to the jurisdiction. See Tex. R. App. P. 43.3.

LINDA REYNA YAÑEZ

Justice

Do not publish.

Tex. R. App. P. 47.3.

Opinion delivered and filed this

the 26th day of October, 2000.

1. Tex. Civ. Prac. & Rem. Code Ann. Chap. 101 (Vernon 1997 &

Supp. 2000).

2. Interlocutory appeals are allowed to challenge the granting or

denial of a governmental entity's plea to the jurisdiction. Tex. Civ.

Prac. & Rem. Code Ann. § 51.014 (a) (8) (Vernon Supp. 2000).

3. The Cantus' third amended petition is the last petition filed in

this case.