Shives v. State, 743 S.W.2d 714 (Tex. App. 1987). · Go Syfert
Shives v. State, 743 S.W.2d 714 (Tex. App. 1987). Cases Citing This Book View Copy Cite
62 citation events (22 in the last 25 years) across 2 distinct courts.
Strongest positive: Dallas Area Rapid Transit (DART) v. Mary Ann Cameron (texapp, 2022-08-02)
Treatment trajectory · 1989 → 2026 · click a year to view as-of
1989 2007 2026
Top citers, strongest first. 46 distinct citers. How cited ↗
discussed Cited as authority (rule) Dallas Area Rapid Transit (DART) v. Mary Ann Cameron
Tex. App. · 2022 · confidence medium
Regardless 1 We cited three cases in support of this proposition: City of Fort Worth v. Gay, 977 S.W.2d 814, 817 (Tex. App.—Fort Worth 1998, no pet.) (“Maintenance activities undertaken at the operational level are not discretionary functions and are not immune from liability.”); Mitchell v. City of Dallas, 855 S.W.2d 741, 745 (Tex. App.—Dallas 1993), aff’d, 870 S.W.2d 21 (Tex. 1994) (same); and Shives v. State, 743 S.W.2d 714, 716 (Tex. App.—El Paso 1987, writ denied) (explaining that roadway design, including placement of safety features such as stop signs, is a discretionary fun…
discussed Cited as authority (rule) Texas Department of Transportation v. Larry Hathorn, Individually and as Representative of the Estate of Debra Picha
Tex. App. · 2012 · confidence medium
Shives v. State , 743 S.W.2d 714, 715 (Tex. App.--El Paso 1987, writ denied) ("A motion for summary judgment may be based on a showing that the cause of action is barred as a matter of law by the affirmative defense of governmental immunity."); see Garza v. Cruz , No. 04-04-00339, 2005 Tex. App. LEXIS 1758 , at *8-9 (Tex. App.--San Antonio Mar. 9, 2005, no pet.) (mem. op.) (reversing denial of summary judgment and rendering judgment in favor of Texas Department of Public Safety because its evidence conclusively established that it retained sovereign immunity from claimants' suit and response f…
discussed Cited as authority (rule) Texas Department of Transportation v. Larry Hathorn, Individually and as Representative of the Estate of Debra Picha
Tex. App. · 2012 · confidence medium
Shives v. State, 743 S.W.2d 714, 715 (Tex. App.—El Paso 1987, writ denied) (“A motion for summary judgment may be based on a showing that the cause of action is barred as a matter of law by the affirmative defense of governmental immunity.”); see Garza v. Cruz, No. 04-04-00339, 2005 Tex. App. LEXIS 1758 , at *8-9 (Tex. App.—San Antonio Mar. 9, 2005, no pet.) (mem. op.) (reversing denial of summary judgment and rendering judgment in favor of Texas Department of Public Safety because its evidence conclusively established that it retained sovereign immunity from claimants’ suit and resp…
discussed Cited as authority (rule) Texas Department of Criminal Justice - Community Justice Assistance Division and Nueces County Community Supervisions and Corrections Department v. Luzelma Campos
Tex. App. · 2011 · confidence medium
Dist. v. Blue, 34 S.W.3d 547, 555 (Tex. 2000); see also Campos v. Nueces County (Campos I), 162 S.W.3d 778, 787 (Tex. App.—Corpus Christi 2005, pet. denied) (―[W]e emphasize that the purpose of a ‗plea [to the jurisdiction] is not to force the plaintiffs to preview their case on the merits but to establish a reason why the merits of the plaintiffs‘ claims should never be reached.‘‖) (citing Blue, 34 S.W.3d at 554 ). 11 1994) (holding that design decisions made by city are discretionary and therefore immune); Shives v. State, 743 S.W.2d 714, 716 (Tex. App.—El Paso 1987, writ denie…
discussed Cited as authority (rule) Texas Department of Criminal Justice-Community Justice Assistance Division v. Campos
Tex. App. · 2011 · confidence medium
Dist., 925 S.W.2d 144, 149-50 (Tex.App.-Fort Worth 1996, no writ) (concluding that a design decision to not equip a school bus with a stop arm was an exercise of discretionary powers and immunity was not waived); Johnson v. Tex. Dep’t of Transp., 905 S.W.2d 394, 397-98 (Tex.App.-Austin 1995, no writ) (holding that stop sign placement was a design decision shielded by immunity); Maxwell v. Tex. Dep’t of Transp., 880 S.W.2d 461, 463 (Tex.App-Austin 1994, writ denied) (finding that the design of roads and bridges, including the installation of safety features such as guard rails and barricade…
discussed Cited as authority (rule) Brazoria County v. Van Gelder
Tex. App. · 2009 · confidence medium
See Tex. Dep’t of Transp. v. Garza, 70 S.W.3d 802, 808 (Tex. *455 2002) (refusing to find waiver of immunity where speed-limit sign correctly reflects the legal speed limit); Bellnoa v. City of Austin, 894 S.W.2d 821, 827 (Tex.App.-Austin 1995, no writ); Shives v. State, 743 S.W.2d 714, 716 (Tex.App.-El Paso 1987, writ denied).
discussed Cited as authority (rule) Brazoria County v. Kym Van Gelder
Tex. App. · 2009 · confidence medium
See Tex. Dep = t of Transp. v. Garza , 70 S.W.3d 802, 808 (Tex. 2002) (refusing to find waiver of immunity where speed-limit sign correctly reflects the legal speed limit); Bellnoa v. City of Austin , 894 S.W.2d 821, 827 (Tex. App. C Austin 1995, no writ); Shives v. State , 743 S.W.2d 714, 716 (Tex. App. C El Paso 1987, writ denied).
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) 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) University of Houston v. Yvonne Michelle De Luna
Tex. App. · 2007 · confidence medium
Dist. , 925 S.W.2d 144, 149-50 (Tex. App.--Fort Worth 1996, no writ) (design decision not to equip school bus with stop arm was exercise of discretionary powers, and sovereign immunity was not waived); Johnson v. Tex. Dep't of Transp. , 905 S.W.2d 394, 397-98 (Tex. App.--Austin 1995, no writ) (stop sign placement was design decision shielded by sovereign immunity); Maxwell v. Tex. Dep't of Transp. , 880 S.W.2d 461, 463 (Tex. App.--Austin 1994, writ denied) (design of roads and bridges, including installation of safety features such as guard rails and barricades, was not subject of Act's waiver…
cited Cited as authority (rule) Zuniga v. Navarro & Associates, P.C.
Tex. App. · 2005 · confidence medium
Sh ives v. State, 743 S.W.2d 714, 715 (Tex.App.-El Paso 1987, writ denied); see also Davis v. City of San Antonio, 752 S.W.2d 518, 519-20 (Tex.1988).
cited Cited as authority (rule) Silverio Zuniga and Refugia v. Zuniga v. Navarro & Associates, P.C., Rashay A. Koster Chapa
Tex. App. · 2005 · confidence medium
Shives v. State , 743 S.W.2d 714, 715 (Tex. App.–El Paso 1987, writ denied); see also Davis v. City of San Antonio , 752 S.W.2d 518, 519-20 (Tex. 1988).
discussed Cited as authority (rule) Sanchez v. Matagorda County
Tex. App. · 2003 · signal: cf. · confidence medium
Cf. Skives v. State, 743 S.W.2d 714, 716 (Tex.App.-El Paso 1987, writ denied) (court held redesigned roadway was left materially and substantially the same and did not alter structure in way material to accident, thus, no waiver of immunity).
discussed Cited as authority (rule) City of Fort Worth v. Robles
Tex. App. · 2001 · confidence medium
Johnson v. Tex. Dep’t of Transp., 905 S.W.2d 394, 397-98 (Tex.App.—Austin 1995, no writ) (explaining that stop sign placement was design decision shielded by sovereign immunity); Shives v. State, 743 S.W.2d 714, 717 (Tex.App.—El Paso 1987, writ denied).
discussed Cited as authority (rule) Ramos v. Texas Department of Public Safety (2×)
Tex. App. · 2000 · confidence medium
Dist., 925 S.W.2d 144, 149-50 (Tex. App.-Fort Worth 1996, no writ) (design decision to not equip school bus with stop arm was exercise of discretionary powers and sovereign immunity not waived); Johnson v. Texas Dep't of Transp., 905 S.W.2d 394, 397-98 (Tex.App.-Austin 1995, no writ) (stop sign placement was design decision shielded by sovereign immunity); Maxwell v. Texas Dep't of Transp., 880 S.W.2d 461, 463 (Tex.App.-Austin 1994, writ denied) (design of roads and bridges, including installation of safety features such as guard rails and barricades, not subject of Act's waiver of sovereign i…
discussed Cited as authority (rule) County of Hidalgo v. Cantu, Jose G., Sr., and San Juana Cantu, Individually, and A/N/as of Mari Cruz Cantu, a Minor Child And as Representatives of the Estates of Roberto G. Cantu, and Jose G. Cantu, Jr.
Tex. App. · 2000 · confidence medium
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).
cited Cited as authority (rule) Guillen v. City of San Antonio
Tex. App. · 2000 · confidence medium
Shives v. State, 743 S.W.2d 714, 715 (Tex.App.—El Paso 1987, writ denied).
cited Cited as authority (rule) Siders v. State
Tex. App. · 1998 · confidence medium
See Villarreal, 810 S.W.2d at 420-21 ; Crossland, 781 S.W.2d at 432; Shives v. State, 743 S.W.2d 714, 717 (Tex.App.—El Paso 1987, writ denied).
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…
cited Cited as authority (rule) Lawrence v. City of Wichita Falls
Tex. App. · 1995 · confidence medium
Poncar v. City of Mission, 797 S.W.2d 236, 239 (Tex.App.—Corpus Christi 1990, no writ); Skives v. State, 743 S.W.2d 714, 715 (Tex.App.—El Paso 1987, writ denied).
discussed Cited as authority (rule) Johnson v. Texas Department of Transportation (2×)
Tex. App. · 1995 · confidence medium
IMMUNITY FOR DISCRETIONARY DECISIONS In Johnson's first point of error, he contends the trial court erred in taking the case from the jury because the body of evidence permitted the finding of a "premise defect." The Department rejoins that an action based upon a "premise defect," or a "special defect" for that matter, could not be maintained because Johnson's ultimate complaint—the placing of the stop sign—was the result of the engineer's exercise of judgment and discretion for which the state is immune from liability under sections 101.056(2) and 101.060(a) of the Act. [5] See Maxwell v.…
discussed Cited as authority (rule) Ronald W. Johnson, Jr. v. Texas Department of Transportation
Tex. App. · 1995 · confidence medium
IMMUNITY FOR DISCRETIONARY DECISIONS In Johnson's first point of error, he contends the trial court erred in taking the case from the jury because the body of evidence permitted the finding of a "premise defect." The Department rejoins that an action based upon a "premise defect," or a "special defect" for that matter, could not be maintained because Johnson's ultimate complaint--the placing of the stop sign--was the result of the engineer's exercise of judgment and discretion for which the state is immune from liability under sections 101.056(2) and 101.060(a) of the Act. (5) See Maxwell v. T…
discussed Cited as authority (rule) Bellnoa v. City of Austin (2×) also: Cited "see, e.g."
Tex. App. · 1995 · confidence medium
Eakle v. Texas Dep’t of Human Servs., 815 S.W.2d 869, 874 (Tex.App.—Austin 1991, writ denied) (number and nature of regulations regarding minimum qualifications to operate a day care is left to agency discretion); Shives, 743 S.W.2d at 715 (failure to lower speed limit was discretionary under predecessor to section 101.056).
discussed Cited as authority (rule) Jose Bellnoa and Carolyn Bellnoa v. City of Austin (2×) also: Cited "see, e.g."
Tex. App. · 1995 · confidence medium
Eakle v. Texas Dep't of Human Servs. , 815 S.W.2d 869, 874 (Tex. App.--Austin 1991, writ denied) (number and nature of regulations regarding minimum qualifications to operate a day care is left to agency discretion); Shives , 743 S.W.2d at 715 (failure to lower speed limit was discretionary under predecessor to section 101.056).
examined Cited as authority (rule) Barron v. Texas Department of Transportation (3×) also: Cited "see"
Tex. App. · 1994 · confidence medium
Shives v. State, 743 S.W.2d 714, 716 (Tex.App.—El Paso 1987, writ denied); Burnett, 694 S.W.2d at 212 . 10 .
discussed Cited as authority (rule) Garza v. State (2×)
Tex. App. · 1994 · confidence medium
Shives v. State, 743 S.W.2d 714, 716 (Tex.App.-El Paso 1987, writ denied).
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) Lawrence E. Wenzel and Myrtice Wenzel v. City of New Braunfels
Tex. App. · 1993 · confidence medium
See McKinney , 814 S.W.2d at 866-67 (barricades along parade route); Villarreal v. State , 810 S.W.2d 419, 420-21 (Tex. App.--Dallas 1991, writ denied) (exit ramp sign); City of El Paso v. Ayoub , 787 S.W.2d 553, 554 (Tex. App.--El Paso 1990, writ denied) (guardrail); Shives v. State , 743 S.W.2d 714, 717 (Tex. App.--El Paso 1987, writ denied) (stop sign).
discussed Cited as authority (rule) Wenzel v. City of New Braunfels
Tex. App. · 1993 · confidence medium
See McKinney, 814 S.W.2d at 866-67 (barricades along parade route); *100 Villarreal v. State, 810 S.W.2d 419, 420-21 (Tex.App.—Dallas 1991, writ denied) (exit ramp sign); City of El Paso v. Ayoub, 787 S.W.2d 553, 554 (Tex.App.—El Paso 1990, writ denied) (guardrail); Shives v. State, 743 S.W.2d 714, 717 (Tex.App.—El Paso 1987, writ denied) (stop sign).
discussed Cited as authority (rule) Chapman v. City of Houston
Tex. App. · 1992 · confidence medium
Court held that because bridge in question was designed and completed prior to 1970, State had no liability for failure to subsequently place lights or other warning devices upon the bridge or to otherwise warn its invitees or licensees of the danger); Shives v. State, 743 S.W.2d 714, 716-717 (Tex.App.—El Paso 1987, writ denied) (state could not be held liable for design of intersection that was constructed 14 years prior to effective date of Texas Torts Claims Act).
cited Cited as authority (rule) State Department of Highways & Public Transportation v. Kitchen
Tex. App. · 1992 · signal: cf. · confidence medium
Cf Skives v. State, 743 S.W.2d 714, 716-17 (Tex.App.—El Paso, 1987, writ denied); Hamric v. Kansas City S. R.R.
discussed Cited as authority (rule) Poncar v. City of Mission (2×) also: Cited "see"
Tex. App. · 1990 · confidence medium
Shives v. State, 743 S.W.2d 714, 715 (Tex.App.—El Paso 1987, writ denied); see also Davis v. City of San Antonio, 752 S.W.2d 518, 519-20 (Tex.1988).
cited Cited as authority (rule) TARRANT CTY. WATER CONTROL AND IMPROVEMENT DIST. NO. 1 v. Crossland
Tex. App. · 1989 · confidence medium
Shives v. State, 743 S.W.2d 714, 716-17 (Tex.App.—El Paso 1987, writ denied); Burnett, 694 S.W.2d at 212 .
cited Cited as authority (rule) Tarrant County Water Control & Improvement District No. 1 v. Crossland
Tex. App. · 1989 · confidence medium
Skives v. State, 743 S.W.2d 714, 716-17 (Tex.App.—El Paso 1987, writ denied); Burnett, 694 S.W.2d at 212 .
cited Cited as authority (rule) Barrera v. City of Garland
Tex. App. · 1989 · confidence medium
Skives v. State, 743 S.W.2d 714, 715 (Tex.App.—El Paso 1987, writ denied).
discussed Cited "see" Elmer Rivera, Kassandra Morales Rodriguez and Isreal Morales v. City of Houston and Veronica Romero
Tex. App. · 2022 · signal: see · confidence high
Oakbend, 515 S.W.3d at 542 ; See Shives v. State, 743 S.W.2d 714, 715 (Tex. App.—El Paso 1987, writ denied) (“[A] motion for summary judgment may be based on a showing that the cause of action is barred as a matter of law by the affirmative defense of governmental immunity.”); cf. Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217 , 226–28 (Tex. 2004) (standard of review for jurisdictional plea based on evidence generally mirrors traditional summary judgment standard).
discussed Cited "see" the City of Houston v. Jose Sabas Carrizales
Tex. App. · 2021 · signal: see · confidence high
Oakbend, 515 S.W.3d at 542 ; see Shives v. State, 743 S.W.2d 714, 715 (Tex. App.—El Paso 1987, writ denied) (“[A] motion for summary judgment may be based on a showing that the cause of action is barred as a matter of law by the affirmative defense of governmental immunity.”); cf. Miranda, 133 S.W.3d at 228 (standard of review for jurisdictional plea based on evidence generally mirrors matter-of-law summary-judgment standard).
discussed Cited "see" Elmer Rivera, Kassandra Morales Rodriguez and Isreal Morales v. City of Houston and Veronica Romero
Tex. App. · 2020 · signal: see · confidence high
Oakbend, 515 S.W.3d at 542 ; See Shives v. State, 743 S.W.2d 714, 715 (Tex. App.—El Paso 1987, writ denied) (“[A] motion for summary judgment may be 6 based on a showing that the cause of action is barred as a matter of law by the affirmative defense of governmental immunity.”); cf. Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217 , 226–28 (Tex. 2004) (standard of review for jurisdictional plea based on evidence generally mirrors traditional summary- judgment standard).
discussed Cited "see" Oakbend Medical Center v. Martinez
Tex. App. · 2017 · signal: see · confidence high
See Skives v. State, 743 S.W.2d 714, 715 (Tex. App.-El Paso 1987, writ denied) (“[A] motion for summary judgment may be based on a showing that the cause of action is barred as a matter of law by the affirmative defense of governmental immunity.”); cf. Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226-28 (Tex. 2004) (standard of review for a jurisdictional plea based on evidence generally mirrors the traditional summary judgment standard).
cited Cited "see" Miller v. City of Fort Worth
Tex. App. · 1995 · signal: see · confidence high
See Shives v. State, 743 S.W.2d 714 (Tex.App.—El Paso 1987, writ denied).
cited Cited "see" Villarreal v. State
Tex. App. · 1991 · signal: see · confidence high
See Shives v. State, 743 S.W.2d 714, 717 (Tex.App.—El Paso 1987, writ denied).
discussed Cited "see" Schaeffer v. State
Minn. Ct. App. · 1989 · signal: see · confidence high
See Skives v. State, 743 S.W.2d 714, 716 (Tex.Ct.App.1987) (“acts and omissions” language in Texas statute construed to mean the state could not be held liable where its alleged negligent actions occurred prior to the effective date), error denied (Mar. 30, 1988).
discussed Cited "see, e.g." City of Houston v. Cynthia Rios, Individually and A/N/F of A.R., V.R. and R. R, Minors
Tex. App. · 2024 · signal: see also · confidence medium
Oakbend, 515 S.W.3d at 542 ; see also Shives v. State, 743 S.W.2d 714, 715 (Tex. App.—El Paso 1987, writ denied) (“[A] motion for summary judgment may be based on a showing that the cause of action is barred as a matter of law by the affirmative defense of governmental immunity.”). 11 Governmental Immunity In its sole issue, the City argues that the trial court erred in denying its summary-judgment motion because the trial court lacks subject-matter jurisdiction over Rios’s suit.
discussed Cited "see, e.g." The City of Houston v. Frank Nicolai and Debora Nicolai as Parents of Caroline Nicolai
Tex. App. · 2023 · signal: see also · confidence medium
Carrizales, 2021 WL 3556216 , at *3; Oakbend, 515 S.W.3d at 542 ; see also Shives v. State, 743 S.W.2d 714, 715 (Tex. App.—El Paso 1987, writ denied) (“[A] motion for summary judgment may be based on a showing that the cause of action is barred as a matter of law by the affirmative defense of governmental immunity.”). 20 Governmental Immunity In its sole issue, the City argues that the trial court erred in denying its summary-judgment motion because the trial court lacks subject-matter jurisdiction over the Nicolais’ suit.
discussed Cited "see, e.g." the City of Houston v. Frank Nicolai and Debora Nicolai as Parents of Caroline Nicolai
Tex. App. · 2022 · signal: see also · confidence medium
Carrizales, 2021 WL 3556216 , at *3; Oakbend, 515 S.W.3d at 542 ; see also Shives v. State, 743 S.W.2d 714, 715 (Tex. App.—El Paso 1987, writ denied) (“[A] motion for summary judgment may be based on a showing that the cause of action is barred as a matter of law by the affirmative defense of governmental immunity.”).
Retrieving the full opinion text from the archive…
Charles SHIVES, Et Al., Appellants,
v.
the STATE of Texas, Et Al., Appellees
08-87-00102-CV.
Court of Appeals of Texas.
Dec 16, 1987.
743 S.W.2d 714
1987 Tex. App. LEXIS 9140
1987 WL 30720
James F. Scherr, Law Offices of James Franklin Scherr, El Paso, for appellants., Jim Mattox, Atty. Gen., Richard D. Nay-lor, Asst. Atty. Gen., Austin, for appellees.
Schulte, Fuller, Woodard.
Cited by 53 opinions  |  Published

OPINION

SCHULTE, Justice.

Appeal is from a summary judgment. The suit is one for personal injuries and wrongful death arising out of an automobile collision at the intersection of Westside Drive (Westside) and Country Club Road (Country Club) in El Paso County, Texas. We affirm.

The intersection in question was designed and constructed in September, 1956. On June 12, 1984, Brenda Theriot Shives drove her car on Westside toward its intersection with Country Club. Upon reaching the intersection, Mrs. Shives stopped at the stop sign located on a concrete island at the intersection. After stopping briefly, she accelerated into the intersection, intending to make a left turn onto Country Club. In the intersection, her car was struck by a westbound van driven by Stanley C. Lopez. As a result of injuries suffered in the collision, Mrs. Shives died. Suit was brought by her estate, husband and parents, as well as by the parents of Thomas J. Theriot, a minor passenger in the Shives vehicle. The action was brought against the State of Texas and the State Department of Highways and Public Transportation, as well as against the driver and owner of the van which struck the Shives vehicle. The suit as to Stanley Lopez, the driver of the van, and as to Diane Lopez, the owner of the van, was settled and severed. We will hereafter refer to the State of Texas and to the State Department of Highways and Public Transportation as the State.

Appellants’ points of error assert the trial court erred in “holding” the Texas Tort Claims Act inapplicable and in “holding” as a matter of law that the State was not guilty of any negligence or nuisance proximately causing the accident. We are unable to find any “holdings” of that nature in the judgment or elsewhere in the record. However, we will consider those assertions in connection with Appellants’ third point that the trial court erred in granting the summary judgment because there was “no legal reason to grant it.”

Questions of negligence and proximate cause are usually issues of fact which cannot be determined on motion for summary judgment. McGuire v. Overton Memorial Hospital, 514 S.W.2d 79 (Tex.Civ.App.—Tyler 1974, writ ref’d n.r.e.). However, a motion for summary judgment may be based on a showing that the cause of action is barred as a matter of law by the affirmative defense of governmental immunity. Jackson v. City of Corpus Christi, 484 S.W.2d 806 (Tex.Civ.App.—Corpus Christi 1972, writ ref’d n.r.e.). Furthermore, where it appears that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law, the judgment shall be rendered forthwith. Rule 166-A, Tex.R. Civ.P.

Appellants’ reliance on theories of common-law negligence and nuisance in regard to the State is ill-placed. The cases cited by Appellants relating to common-law negligence concern municipalities and proprietary function and have no application. Nuisance is equally inapplicable. See our Callaway v. City of Odessa, 602 S.W.2d 330 (Tex.Civ.App.—El Paso 1980, no writ). To recover, facing the doctrine of governmental immunity, the Appellants must do so under the Texas Tort Claims Act, and we believe, in that respect, they likewise are precluded. Our references to the Texas Tort Claims Act (hereafter referred to as the Act) will be to the provisions of Tex.Rev.Civ.Stat.Ann. art. 6252-19 in effect at the time of the collision in question. The Act is now contained in the Civil Prac[*716] tice and Remedies Code sec. 101.001, et seq.

Appellants’ principal thrust is directed at the “skewed design of the intersection.” That design and construction took place in 1956, some fourteen years prior to the effective date of the Act. Under the Act, the State can only be held liable for acts and omissions occurring after January 1, 1970. See: Sections 14 and 22 of the Act. Furthermore, it would appear that the design used in constructing a roadway falls within the realm of exercise of discretion set forth in Section 14(7) of the Act, as more fully discussed hereafter in regard to other complained of acts and omissions.

The other complained of acts and omissions include the assertions that the State was negligent in not reducing the speed limit on Country Club Road; in failing to place a traffic light at the intersection; in the maintenance of the intersection; and, in the manner of installing a stop sign and stop bar at the intersection.

In the Act at Section 14(7), entitled “Exemptions,” it is provided in part that the provision of the Act shall not apply to the failure to perform any act which is not required by law and the performance or nonperformance of which is left to the unit of government. Under those circumstances, the decision not to do the act, or a failure to make a decision thereon, is not actionable under the Act. This discretionary provision, we believe, obviates Appellants’ complaints regarding the speed limit and the absence of a traffic light. Furthermore, specifically in regard to the traffic light, Section 14(12) of the Act provides under exemptions, in part, that “[n]othing herein shall give rise to liability” from the failure to initially place any signs, signals or devices when such failure is a result of discretionary acts.

As to the maintenance assertion, Tex.Rev.Civ.Stat.Ann. art. 6674q-4 (Vernon Supp.1987) prescribes that the Highway Department shall provide for the efficient maintenance of all highways. “Maintenance” means that which is required to preserve the highway as it was originally designed and constructed. Burnett v. Texas Highway Department, 694 S.W.2d 210 (Tex.App.—Eastland 1985, no writ). Appellants argue that the State replaced a caved-in portion of the road in question. The State also replaced guardrails damaged in accidents which occurred under circumstances unrelated to those of the Shives accident. In addition to other minor repairs and maintenance, the State fortified with concrete a triangular area which had been formed over time by the passage of cars making right turns from Westside onto Country Club. There is no evidence that the road was redesigned in the sense of adding lanes or changing the course of the road. The road was left materially and substantially the same. An examination of the record and evidence reveals that the addition of the island did not alter the design of the intersection in any way that was material to the Shives accident. Any changes that were made through the addition of the traffic island did not detract from the decedent driver’s ability to see up the road in the direction from which traffic was coming. None of the alterations could be said to have contributed to the accident in question. Furthermore, one of the Appellants, Thomas Theriot, who was in the Shives vehicle at the time of the accident, admitted in deposition testimony that there was a clear view from the intersection of traffic coming down Country Club. Theri-ot further stated that there was nothing to keep the decedent driver, Brenda Shives, from seeing the oncoming van which struck her.

Appellants also contend that the State was negligent in the manner in which it installed a stop sign and stop bar in 1983 because the installation was not done in strict compliance with the Texas Highway Department Manual. Appellants did not indicate what the manual is, or what force or authority it bears. Also in respect to the stop sign which faced the decedent driver Shives on the day of the accident are the facts that (1) the sign was unobstructed, and (2) she knew of the sign. There is no dispute that the sign was visible, nor is there any dispute about whether Shives[*717] was familiar with the intersection and the need to stop there. She had driven through the intersection many times. The fact that she actually stopped at the sign is uncontested. Were any viable duty on the State shown with regard to the intersection, the duty would only require that the State either make the condition reasonably safe or warn the driver. As this Court held in Smith v. State, 716 S.W.2d 177 (Tex.App.—El Paso 1986, writ ref’d n.r.e.), one of the cases cited by Appellants in support of their position, a sign indicating that a resurfaced section of road was “slippery when wet” was sufficient under Texas law to alert a driver that a hazardous condition existed. The duty upon the State to either warn of the hazard or correct it was thus discharged in that case. If a “slippery when wet” sign is adequate warning, it would follow a fortiori that a stop sign is adequate warning. There is no issue of fact as to whether the State adequately warned the decedent of impending danger on Country Club Road.

In addition, the placing of stop signs is discretionary in nature and, therefore, exempted by the previously discussed Section 14(7) of the Act. What is more, Tex. Rev.Civ.Stat.Ann. art. 6701d, sec. 30 (Vernon 1977), states in part that “[t]he State Highway Department may place and maintain, or ... provide for such placing and maintaining such a traffic-control devices, ... upon all State highways as it may deem necessary, to indicate and carry out the provisions of this Act or to regulate, warn, or guide traffic.” [Emphasis added.]

Finally, the State emphasizes, and we believe correctly, that the undisputed facts show that Brenda Shives was well acquainted with the intersection, was aware of the stop sign in question and in fact stopped her vehicle in compliance therewith. As tragic as her failure to do so may have been, Mrs. Shives had a duty by statute to remain stopped at the stop sign until she could enter the intersection in question with safety. Tex.Rev.Civ.Stat. Ann. art. 6701d, secs. 71 and 73 (Vernon 1977).

Accordingly, we overrule the points of error and affirm the judgment of the trial court.