Burnett v. Texas High. Dep't, 694 S.W.2d 210 (Tex. App. 1985). · Go Syfert
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Burnett v. Texas High. Dep't, 694 S.W.2d 210 (Tex. App. 1985). Cases Citing This Book View Copy Cite
39 citation events (10 in the last 25 years) across 2 distinct courts.
Treatment trajectory · 1987 → 2026 · click a year to view as-of
1987 2006 2026
Top citers, strongest first. 22 distinct citers. How cited ↗
discussed Cited as authority (rule) the City of Austin v. Jennifer Frame, Individually, and as Personal Representative of the Estate of John William Griffith Greg Griffith Cheryl Burris And Diana Pulido
Tex. App. · 2015 · confidence medium
State v. Miguel, 2 S.W.3d 249, 251 (Tex. 1999) (“”Because the barrel warning system was a discretionary act, the State is entitled to sovereign immunity.”); State v. Rodriguez, 985 S.W.2d 83, 86 (Tex. 1999) (“the State retained its immunity for detour design and sign placement”); Texas Dep’t of Transp. v. Ramirez, 74 S.W.3d 864, 867 (Tex. 2002) (“the median’s slope and the lack of safety features, such as barriers or guardrails, reflect discretionary decisions for which TxDOT retains immunity under the Act’s discretionary function exception); Tex. Dep’t of Transp. v. Hathor…
discussed Cited as authority (rule) the City of Austin v. Jennifer Frame, Individually, and as Personal Representative of the Estate of John William Griffith Greg Griffith Cheryl Burris And Diana Pulido
Tex. App. · 2015 · confidence medium
Ramirez, 74 S.W.3d at 867 (decision not to install barriers or guardrails); Wenzel v. City of New Braunfels, 852 S.W.2d 97, 98 (Tex. App.— Austin 1993, no writ) (decision not to erect barricade, warning sign, or similar warning device); City of El Paso v. Ayoub, 787 S.W.2d 553, 554 (Tex. App.—El Paso 1990, writ denied) (design, placement, and upgrading of guardrails and barricades on bridge over culvert); Burnett v. Texas Highway Dep’t., 694 S.W.2d 210, 212 (Tex.App.—Eastland 1985, writ ref’d n.r.e.) (replacement of highway metal beam guard fence with rigid barrier); Stanford v. Stat…
discussed Cited as authority (rule) Goodson v. City of Abilene
Tex. App. · 2009 · confidence medium
See, e.g., Maxwell v. Tex. Dep't of Transp., 880 S.W.2d 461, 465-66 (Tex.App.-Austin 1994, writ denied) (because highway was built in 1950s, TxDOT was immune); Barron v. Tex. Dep’t of Transp., 880 S.W.2d 300, 302 (Tex.App.-Waco 1994, writ denied) (because bridge was built in 1920s and upgraded in 1950s, TxDOT was immune); Chapman v. City of Houston, 839 S.W.2d 95, 99 (Tex.App.-Houston [14th Dist.] 1992, writ denied) (state university was immune from liability for injuries suffered as a result of the failure to warn of condition on bridge built before 1970); Shives v. State, 743 S.W.2d 714, 7…
discussed Cited as authority (rule) Christina Goodson, Individually and on Behalf of Zachary Goodson, a Minor v. City of Abilene
Tex. App. · 2009 · confidence medium
Fund, 14 S.W.3d 801, 803-04 (Tex. App.—Austin 2000, pet. denied). 3 See, e.g., Maxwell v. Tex. Dep’t of Transp., 880 S.W.2d 461, 465-66 (Tex. App.—Austin 1994, writ denied) (because highway was built in 1950s, TxDOT was immune); Barron v. Tex. Dep’t of Transp., 880 S.W.2d 300, 302 (Tex. App.—Waco 1994, writ denied) (because bridge was built in 1920s and upgraded in 1950s, TxDOT was immune); Chapman v. City of Houston, 839 S.W.2d 95, 99 (Tex. App.—Houston [14th Dist.] 1992, writ denied) (state university was immune from liability for injuries suffered as a result of the failure to w…
discussed Cited as authority (rule) in the Interest of J. S., a Child
Tex. App. · 2005 · confidence medium
Plaintiffs argued that the Department has a statutory duty of maintenance and upkeep, including all activities necessary to "preserve a highway as it was originally designed and constructed." See Villareal v. State , 810 S.W.2d 419, 421 (Tex. App.—Dallas 1991, writ denied); Burnett v. Tex. Highway Dep't , 694 S.W.2d 210, 212 (Tex. App.—Eastland 1985, writ ref'd n.r.e.).
discussed Cited as authority (rule) Texas Department of Transportation v. Pate
Tex. App. · 2005 · confidence medium
Plaintiffs argued that the Department has a statutory duty of maintenance and upkeep, including all activities necessary to “preserve a highway as it was originally designed and constructed.” See Villarreal v. State, 810 S.W.2d 419, 421 (Tex.App.-Dallas 1991, writ denied); Burnett v. Tex. Highway Dep’t, 694 S.W.2d 210, 212 (Tex.App.-Eastland 1985, writ ref'd n.r.e.).
discussed Cited as authority (rule) the Texas Department of Transportation v. Tamara Pate, Derl Anderson, Celia Anderson, and Kyle Pate, Individually and as Representative of the Estate of Casey Pate
Tex. App. · 2005 · confidence medium
Plaintiffs argued that the Department has a statutory duty of maintenance and upkeep, including all activities necessary to "preserve a highway as it was originally designed and constructed." See Villareal v. State , 810 S.W.2d 419, 421 (Tex. App.—Dallas 1991, writ denied); Burnett v. Tex. Highway Dep't , 694 S.W.2d 210, 212 (Tex. App.—Eastland 1985, writ ref'd n.r.e.).
discussed Cited as authority (rule) Davis v. City of Palestine
Tex. App. · 1997 · confidence medium
This test requires the application of the exception, and the preclusion of claims, only when the claims are based upon governmental decisions at the “design level,” instead of at the “maintenance level.” See City of Watauga v. Taylor, 752 S.W.2d 199, 202-204 (Tex.App.—Fort Worth 1988, no writ); Burnett v. Tex. Highway Dep’t, 694 S.W.2d 210, 212 (Tex.App.—Eastland 1985, writ ref d n.r.e.); Stanford v. State Dep’t of Highways, 635 S.W.2d 581, 582 (Tex.App.—Dallas 1982, writ ref'd n.r.e.).
discussed Cited as authority (rule) French v. Johnson County
Tex. App. · 1996 · confidence medium
PRAC. & Rem.Code Ann. § 101.066; Barron, 880 S.W.2d at 302 ; Shives v. State, 743 S.W.2d 714, 716 (Tex.App.—El Paso 1987, writ denied); Burnett v. Texas Highway Dep’t, 694 S.W.2d 210, 212 (Tex.App.—Eastland 1985, writ refd n.r.e.).
discussed Cited as authority (rule) Cranford v. City of Pasadena
Tex. App. · 1996 · confidence medium
See Barron v. Texas Dep’t of Transp., 880 S.W.2d 300, 302 (Tex.App. -Waco 1994, writ denied) (holding that, because bridge and guardrails were designed and constructed prior to 1970, the Act did not apply); Chapman v. City of Houston, 839 S.W.2d 95, 99 (Tex.App.-Houston [14th Dist.] 1992, writ denied) (holding that where claims concerned a structure constructed prior to the Act, the State had governmental immunity); Tarrant County Water Control and Improvement Dist. v. Crossland, 781 S.W.2d 427, 432 (Tex.App.-Fort Worth 1989, writ denied) (holding that State had no liability for failure to p…
discussed Cited as authority (rule) Lawrence v. City of Wichita Falls
Tex. App. · 1995 · confidence medium
City of Houston v. George, 479 S.W.2d 257, 258 (Tex.1972); Barron v. Texas Dep’t of Transp., 880 S.W.2d 300, 302 (Tex.App.—Waco 1994, writ denied); Chapman, 839 S.W.2d at 98-99 ; Crossland, 781 S.W.2d at 438-39 ; Shives, 743 S.W.2d at 715 ; Burnett v. Texas Highway Dep’t, 694 S.W.2d 210, 212 (Tex.App.—Eastland 1985, writ ref'd n.r.e.).
discussed Cited as authority (rule) Keegan v. State
Utah · 1995 · confidence medium
See also Epstein v. State, 124 A.D.2d 544 , 507 N.Y.S.2d 689, 693 (1986) (holding that design, construction, and maintenance of highways are entrusted to the State’s sound discretion as long as the highway is constructed so as not to create an affirmative hazard), appeal denied, 69 N.Y.2d 605 , 518 N.Y.S.2d 1026 , 505 N.E.2d 954 (1987); City of El Paso v. Ayoub, 787 S.W.2d 553, 554 (Tex.Ct.App.1990) (holding that “design, placement and upgrading of guardrails and barricades is the exercise of a discretionary power which ... is immune from liability”); Burnett v. Texas Highway Dep’t, 69…
discussed Cited as authority (rule) City of Fort Worth v. Adams
Tex. App. · 1994 · confidence medium
Id.; see also Barron v. Texas Dept. of Transp., 880 5.W.2d 300 (Tex.App.—Waco 1994, writ requested) (State could not be liable under Tort Claims Act for accident on bridge where bridge was built in 1920’s and upgraded around 1950); Burnett v. Texas Highway Dept., 694 S.W.2d 210, 211-12 (Tex.App.—Eastland 1985, writ ref d n.r.e.) (State could not be liable under Tort Claims Act for injuries sustained by passengers and driver of car hit when truck crossed highway metal beam guard fence because highway had been designed and constructed by 1961).
discussed Cited as authority (rule) Maxwell v. Texas Department of Transportation
Tex. App. · 1994 · confidence medium
Wenzel v. City of New Braunfels, 852 S.W.2d 97, 98 (Tex.App.—Austin 1993, no writ) (failing to erect barricade, warning sign, or similar warning device); City of El Paso v. Ayoub, 787 S.W.2d 553 (Tex.App.—El Paso 1990, writ denied) (design, place *464 ment, and upgrading of guardrails and barricades on bridge over culvert); Burnett v. Texas Highway Dep’t, 694 S.W.2d 210, 212 (Tex.App.—Eastland 1986, writ ref'd n.r.e.) (replacement of highway metal beam guard fence with rigid barrier); Stanford v. State Dep’t of Highways & Pub.
discussed Cited as authority (rule) Rhonda Maxwell v. Texas Department of Transportation
Tex. App. · 1994 · confidence medium
Wenzel v. City of New Braunfels , 852 S.W.2d 97, 98 (Tex. App.--Austin 1993, no writ) (failing to erect barricade, warning sign, or similar warning device); City of El Paso v. Ayoub , 787 S.W.2d 553 (Tex. App.--El Paso 1990, writ denied) (design, placement, and upgrading of guardrails and barricades on bridge over culvert); Burnett v. Texas Highway Dep't , 694 S.W.2d 210, 212 (Tex. App.-- Eastland 1985, writ ref'd n.r.e.) (replacement of highway metal beam guard fence with rigid barrier); Stanford v. State Dep't of Highways & Pub.
discussed Cited as authority (rule) University of Texas-Pan American v. Valdez
Tex. App. · 1993 · confidence medium
Chapman v. City of Houston, 839 S.W.2d 95, 99 (Tex.App.—Houston [14th Dist.] 1992, writ denied) (State immune from liability for injuries suffered as alleged result of failure of university to warn of condition on bridge built before 1970); Tarrant County Water Control & Improvement Dist. v. Crossland, 781 S.W.2d 427 , 432 (Tex.App.—Fort Worth 1989, writ denied) (State immune from liability for death of boaters due to failure to place warning lights on low bridge completed before 1970); Shives v. State, 743 S.W.2d 714, 716-17 (Tex.App.—El Paso 1987, writ denied) (State immune from liabil…
discussed Cited as authority (rule) Chapman v. City of Houston
Tex. App. · 1992 · confidence medium
Burnett v. Texas Highway Department, 694 S.W.2d 210, 211-212 (Tex.App.—Eastland 1985, writ ref'd n.r.e.) (where portion of highway in question was constructed in 1961, prior to effective date of Act, driver and passenger injured in 1983 on that highway could not recover under Texas Torts Claims Act); Tarrant County Water Control and Improvement District v. Crossland, 781 S.W.2d 427 (Tex.App.—Fort Worth 1989, writ denied) (Plaintiff alleged that State was negligent because it failed to place lights or other warning devices on a bridge which span a portion of the lake upon which the victims�…
cited Cited as authority (rule) City of El Paso v. Ayoub
Tex. App. · 1990 · confidence medium
Burnett v. Texas Highway Department, 694 S.W.2d 210, 212 (Tex.App.—Eastland 1985, writ ref'd n.r.e.).
cited Cited as authority (rule) TARRANT CTY. WATER CONTROL AND IMPROVEMENT DIST. NO. 1 v. Crossland
Tex. App. · 1989 · confidence medium
Burnett v. Texas Highway Dep't., 694 S.W.2d 210, 211-12 (Tex.App.—Eastland 1985, writ ref'd n.r.e.).
cited Cited as authority (rule) Tarrant County Water Control & Improvement District No. 1 v. Crossland
Tex. App. · 1989 · confidence medium
Burnett v. Texas Highway Dep’t., 694 S.W.2d 210, 211-12 (Tex.App.—Eastland 1985, writ ref'd n.r.e.).
discussed Cited "see" the City of Austin v. Jennifer Frame, Individually, and as Personal Representative of the Estate of John William Griffith Greg Griffith Cheryl Burris And Diana Pulido
Tex. App. · 2016 · signal: see · confidence high
See Burnett v. Texas Highway Dep’t, 694 S.W.2d 210, 212 (Tex. App.—Eastland 1985, writ ref’d n.r.e.) (failure to upgrade median barrier was discretionary when highway department had already made plans to upgrade but had not yet implemented those plans).
cited Cited "see" Barron v. Texas Department of Transportation
Tex. App. · 1994 · signal: see · confidence high
See Burnett v. Texas Highway Dep't, 694 S.W.2d 210, 211-12 (Tex.App.—Eastland 1985, writ ref'd n.r.e.); Tarrant County Water Control and Improvement Dist.
Retrieving the full opinion text from the archive…
Sylvia BURNETT Et Al., Appellants,
v.
TEXAS HIGHWAY DEPARTMENT, Appellee
11-84-251-CV.
Court of Appeals of Texas.
Jun 27, 1985.
694 S.W.2d 210
Alfonso L. Melendez, El Paso, for appellants., Delmar L. Cain, Asst. Atty. Gen., Austin, for appellee.
Dickenson.
Cited by 24 opinions  |  Published

OPINION

DICKENSON, Justice.

A large truck-tractor moved to its left in order to avoid a vehicle which was traveling in the same direction and which started to change lanes before its driver saw the truck. The truck hit the metal beam guard fence which was in the median separating east bound traffic from west bound traffic. The truck came through the guard fence and struck a passenger vehicle which was approaching from the opposite direction. The driver [1] of the passenger vehicle and her granddaughter [2] sued the Texas Highway Department, [3] seeking damages under the Texas Tort Claims Act, TEX.REV.CIV. STAT.ANN. art. 6252-19 (Vernon 1970). Defendant’s motion for summary judgment that plaintiffs take nothing was granted on October 27, 1983. Plaintiffs appeal. We affirm. [4]

Plaintiffs have briefed one ground of error. They argue that the trial court erred in granting defendant’s motion for summary judgment.

We agree with the trial court that the depositions and affidavits show that there is no dispute as to the material facts and that the Texas Highway Department is entitled to summary judgment.

The wreck occurred on June 8,1973, on Interstate Highway 10 inside the City of El Paso. This portion of the highway was designed, and the construction was completed in 1961, prior to the effective date of the Texas Tort Claims Act. Section 14(1) of the Act specifically provides:

[*212] The provisions of this Act shall not apply to: (1) Any claim based upon an act or omission which occurred prior to the effective date of this Act....

Moreover, the summary judgment proof shows that the highway met or exceeded the design and construction standards which existed when the highway was completed in 1961.

Prior to the 1973 accident, the Texas Highway Department sought federal funds to replace the metal beam guard fence with a rigid barrier, but the change was not made until after the wreck involved in this lawsuit. Plaintiffs argue that this raises a fact issue as to the “maintenance” of the highway. [5] We disagree. Changing or “upgrading” the median barrier is a matter involving the exercise of discretion. Section 14(7) of the Texas Tort Claims Act specifically provides:

The provisions of this Act shall not apply to: ... (7) Any claim based upon the failure of a unit of government to perform any act which said unit of government is not required by law to perform. If the law leaves the performance or nonperformance of an act to the discretion of the unit of government, its decision not to do the act, or its failure to make a decision thereon, shall not form the basis for a claim under this Act.

See and compare Stanford v. State Department of Highways and Public Transportation, 635 S.W.2d 581 (Tex.App. — Dallas 1982, writ ref d n.r.e.). We agree with Stanford that “changing the design” is not maintenance and that maintenance means “that which is required to preserve the (highway) as it was originally designed and constructed.” The decision to change the median barrier is a discretionary matter which is exempted from liability under Section 14(7) of the Act.

The single point of error is overruled, and the judgment of the trial court is affirmed.

1

. Sylvia Burnett was driving the vehicle. Both of her arms were broken in the wreck. She has partial loss of use of her hands. Her hip socket was cracked, and it bothers her if she walks very much. Her hearing aid was broken, and her nose was broken. Her kidneys were bruised. The doctor told her that she will never be able to work again. Her medical expenses were close to $5,000. She settled her claim against the truck driver for $20,000.

2

. Paula Frantz and her small baby were passengers when the truck hit the grandmother's car. The baby was fatally injured in the wreck, and Paula received extensive injuries. She sues for herself individually and as sole heir and surviving parent of the baby. Paula received a broken arm, a cracked rib, and her right leg was broken in three places. She was in the hospital about six weeks, and her medical bills were about $9,000. She settled her claims against the truck driver for $30,000.

4

. This appeal was transferred from the El Paso Court of Appeals to this Court on November 20, 1984. See TEX.REV.CIV.STAT.ANN. art. 1738 (Vernon Supp.1985).

5

. See TEX.REV.CIV.STAT.ANN. art. 6674q-4 (Vernon 1977) which provides that "from funds available" the Texas Highway Department shall provide for the "efficient maintenance of all highways comprising the State System."