# Johnson v. Texas Department of Transportation

> Texas Court of Appeals, 3rd District (Austin) · August 16, 1995 · 905 S.W.2d 394

URL: https://www.frixlaw.com/law-library/cases/9645643

## Case

- **Full name:** Ronald W. JOHNSON, Jr., Appellant, v. TEXAS DEPARTMENT OF TRANSPORTATION, Appellee
- **Court:** Texas Court of Appeals, 3rd District (Austin)
- **Decided:** August 16, 1995
- **Citations:** 905 S.W.2d 394; 1995 Tex. App. LEXIS 1868; 1995 WL 480520
- **Precedential status:** Published
- **Opinion:** Dissent by Powers
- **Judges:** Powers, Jones, Smith
- **Cited by:** 28 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9645643

## How later opinions describe it (automated extraction)

- holding that “the obstruction of the view of the stop sign, as a result of vegetation and trees ... is not an obstruction on a highway,” and is therefore not a special defect.
- holding that obstructed view of stop sign due to vegetation and trees was not obstruction on highway and was not special defect
- explaining that stop sign placement was design decision shielded by sovereign immunity
- holding that the location of where to place a sign is a discretionary design decision
- holding that location of where to place sign is a discretionary design decision

## Opinion text

POWERS, Justice,
dissenting.
I respectfully dissent. It is obvious that the choice of a stop-sign location is an act attended by official discretion and the Department is immune from liability when its engineer acts on his professional judgment and within that discretion. The word “discretion” signifies, however, a power to chose among alternatives within legal bounds. Landon v. Jean-Paul Budinger, Inc., 724 S.W.2d 931, 935 (Tex.App.—Austin 1987, no writ). Official discretion is not absolute. No official or public servant may exercise his or her power in a manner that is contrary to law — the scope of official discretion does not extend so far. To the extent the law left the engineer no choice regarding the location of the stop sign, his duty in choosing a location was ministerial, not discretionary. See City of Lancaster v. Chambers, 883 S.W.2d 650, 653-54 (Tex.1994). Indeed, Department regulations restricted the engineer’s discretion to this extent: the engineer was not free to select a stop-sign location in “conflict ... with ... applicable state laws.” 43 Tex.Admin.Code § 25.1(b) (1995).
The Department might have decided that no stop sign was required in order to make the intersection reasonably safe for the motoring public. Had the Department been mistaken, no liability would have attached for the resulting “premises defect.” Texas Tort Claims Act, Tex.Civ.Prac. & Rem.Code Ann. § 101.060(a)(1) (West 1986) (State shall not *400 be liable for failure initially to place traffic or road sign if failure is result of discretionary action of governmental unit); see Maxwell v. Texas Dep’t of Transp., 880 S.W.2d 461, 463 (Tex.App.—Austin 1994, writ denied). In this instance, however, the Department decided that a stop sign was required to make the intersection reasonably safe, that is to say, a stop sign was necessary to preclude a resulting “premises defect.” So much is implicit in the Department decision to erect the stop sign.
In carrying out the Department decision, the engineer had a lawful range of discretion in deciding where precisely to place the stop sign. He was, however, limited to this extent in the exercise of his discretion: he was not free to place the sign at a location that would defeat the very purpose of the stop sign, for that would negate the Department decision from which his discretion arose. The sole purpose of a stop sign is to give timely notice to approaching motorists that they have come under a statutory duty to stop their motor vehicle at the proper point before entering the intersection. Tex.Rev.Civ.Stat.Ann. art. 6701d, § 91A(b) (West 1977). The “applicable state laws” thus also restricted the permissible scope of the engineer’s discretion. He was not lawfully free to select a location so far down Knickerbocker Road that a motorist approaching the intersection on Spillway Road could not possibly see the sign in time to stop before entering the intersection. It is unreasonable to suppose that the legislature, in its enactment of sections 101.056(2) and 101.060(a) of the Texas Tort Claims Act, intended to allow immunity for “discretionary” decisions taken in violation of the legislature’s own enactment and the official decisions of the Department. Tex.Civ.Prac. & Rem.Code Ann. §§ 101.056(2), .060(a) (West 1986).
Turning then to the evidence, one finds testimony that the engineer did, indeed, exceed the lawful bounds of his discretion in choosing a location for the stop sign. A witness who lived near the intersection and traveled frequently toward it along Spillway Road testified that the location of the stop sign, about twenty feet down Knickerbocker Road from the traveled part of Spillway, made it impossible for a motorist to see the sign in time to stop before entering the intersection. This explicit testimony referred not to the presence or absence of vegetation but to the acuteness of the angle made by placing the stop sign so far from Spillway Road. Such evidence, in my view, squarely raised the issue of a premises defect and precluded a directed verdict. See Henderson v. Travelers Ins. Co., 544 S.W.2d 649, 654 (Tex.1976) (directed verdict precluded unless evidence of a fact amounts to no more than surmise or suspicion).
I would therefore sustain Johnson’s first point of error.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9645643. Public record. Not legal advice.