discretionary function exception in Texas

2019State v. Terrell, 588 S.W.2d 784, 787 (Tex. 1979); Golden Harvest, 942 S.W.2d at 687 .

2018Flynn, 228 S.W.3d at 657 (citing State v. Terrell, 588 S.W.2d 784, 787 (Tex. 1979)). 3 In part, section 101.022, entitled “Duty Owed: Premise and Special Defects,” states, “(a) Except as provided in subsection (c), if a claim arises from a premise defect, the governmental unit owes to the claimant only the duty that a private person owes to a licensee on private property, unless the claimant pays for the use of the premises.” Id. § 101.022(a).

2023Code § 101.060(a)(1), (c). 46 Id. §§ 101.056(2), .060(a)(1). 47 74 S.W.3d 864 . 48 Id. at 867. 13 accidents at that location and proffered an expert opinion that the median was not safe. 49 Despite this evidence, we concluded that the Act did not waive the Department’s immunity because “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.” 50 Like the plaintiff in Ramirez, Fraley similarly complains of the intersection’s lack of safety features like

2023Instead, the Act expressly recognizes that the initial decision not to install traffic control devices cannot give rise to liability for a premises defect, unless that defect is a “special” defect. 45 We hold that the University’s alleged failures to make the intersection safe fall within the well-recognized discretionary-function exception. 46 Our decision in Texas Department of Transportation v. Ramirez involved allegations like Fraley’s. 47 In Ramirez, we considered whether the Act waived the Department’s immunity based on its alleged defective design of a narrow, sloped highway median that

2024This discretionary-function exception “avoid[s] judicial review or interference with those policy decisions committed to the other branches of government.” Flynn, 228 S.W.3d at 657 .

2016See United States v. Gaubert, 499 U.S. 315, 322 (1991) (Federal Tort Claims Act’s discretionary-function exception applies only to acts that “‘involv[e] an element of judgment or choice,’” and “[t]he requirement of judgment or choice is not satisfied if a ‘federal statute, regulation, or policy specifically prescribes a course of action for an employee to follow,’ because ‘the employee has no rightful option but to adhere to the directive.’” (quoting Berkovitz v. United States, 486 U.S. 531, 536 (1998))); see also Flynn, 228 S.W.3d at 661–62 (Hecht, J., concurring) 9 (“The discretionary functi

2023Instead, the Act expressly recognizes that the initial decision not to install traffic control devices cannot give rise to liability for a premises defect, unless that defect is a “special” defect. 45 We hold that the University’s alleged failures to make the intersection safe fall within the well-recognized discretionary-function exception. 46 Our decision in Texas Department of Transportation v. Ramirez involved allegations like Fraley’s. 47 In Ramirez, we considered whether the Act waived the Department’s immunity based on its alleged defective design of a narrow, sloped highway median that

2019Additionally, we noted that "[a] court should not second-guess a governmental unit's decision about the type of marker or safety device that is the most appropriate." Id. *667 Likewise, in Tex. Dep't of Transp. v. Ramirez , we held that the Department of Transportation was immune from a suit alleging a dangerous highway median because "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." 74 S.W.3d 864 , 867 (Tex. 2002).

2007This provision is commonly referred to as the A discretionary function exception. @ See Mitchell v. City of Dallas , 855 S.W.2d 741, 745 (Tex. App.--Dallas 1993), aff = d , 870 S.W.2d 21 (Tex. 1994).

2005See Mitchell v. City of Dallas, 855 S.W.2d 741, 745 (Tex.App.-Dallas 1993), aff'd, 870 S.W.2d 21 (Tex.1994). *911 The discretionary function exception to waiver of sovereign immunity is designed to avoid judicial review of governmental policy decisions.

2015State 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. Hathorn, 2012 WL 5 2989235

2012Thus, [the claimant]’s petition d[id] not state a premise-defect claim under the Act.” Id. (citations omitted); see also Brazoria Cnty. v. Van Gelder, 304 S.W.3d 447, 454 (Tex. App.—Houston [14th Dist.] 2009, pet. denied) (concluding that even if pavement sloped at steep or abrupt angle, roadway’s design reflected discretionary act for which governmental unit retained immunity); Berry v. City of Reno, 107 S.W.3d 128, 132-33 (Tex. App.—Fort Worth 2003, no pet.) (holding that section 101.056(2) of civil practice and remedies code barred plaintiffs’ suit based on allegedly negligent “design and c

2010See Crossland, 781 S.W.2d at 433.

2010See Crossland, 781 S.W.2d at 433.

2002See State v. Terrell, 588 S.W.2d 784, 787 (Tex.1979); McKinney v. City of Gainesville, 814 S.W.2d 862, 866 (Tex.App.—Fort Worth 1991, no writ).

1995State v. Terrell, 588 S.W.2d 784, 787 (Tex.1979); Mitchell v. City of Dallas, 855 S.W.2d 741, 745 (Tex.App.—Dallas 1993), aff'd, 870 S.W.2d 21 (Tex.1994); McKinney v. City of Gainesville, 814 S.W.2d 862, 866 (Tex.App.—Fort Worth 1991, no writ).

2023Instead, the Act expressly recognizes that the initial decision not to install traffic control devices cannot give rise to liability for a premises defect, unless that defect is a “special” defect. 45 We hold that the University’s alleged failures to make the intersection safe fall within the well-recognized discretionary-function exception. 46 Our decision in Texas Department of Transportation v. Ramirez involved allegations like Fraley’s. 47 In Ramirez, we considered whether the Act waived the Department’s immunity based on its alleged defective design of a narrow, sloped highway median that

2023Instead, the Act expressly recognizes that the initial decision not to install traffic control devices cannot give rise to liability for a premises defect, unless that defect is a “special” defect. 45 We hold that the University’s alleged failures to make the intersection safe fall within the well-recognized discretionary-function exception. 46 Our decision in Texas Department of Transportation v. Ramirez involved allegations like Fraley’s. 47 In Ramirez, we considered whether the Act waived the Department’s immunity based on its alleged defective design of a narrow, sloped highway median that

2023In Johnson, we recognized that a “sharp line between ‘design’ and ‘maintenance,’ under 10 which anything on the ‘maintenance’ side of the line is not covered by the discretionary function exception,” is not supported by the statutory text. 572 S.W.3d at 665–66.

2023See, e.g., Tarrant Reg’l Water Dist. v. Johnson, 572 S.W.3d 658 , 664–65 (Tex. 2019) (referring to Section 101.056 as “the discretionary function exception”).

2019At bottom, they struggle with the same question facing Texas courts-whether challenged government action "is of the kind that the discretionary function exception was designed to shield." United States v. Gaubert , 499 U.S. 315 , 322-23, 111 S.Ct. 1267 , 113 L.Ed.2d 335 (1991).

2019At bottom, they struggle with the same question facing Texas courts-whether challenged government action "is of the kind that the discretionary function exception was designed to shield." United States v. Gaubert , 499 U.S. 315 , 322-23, 111 S.Ct. 1267 , 113 L.Ed.2d 335 (1991).

2016E.g., Texas Dep’t of Transp. v. Ramirez, 74 S.W.3d 864, 867 (Tex. 2002) (per curiam) (“[T]he median’s slope and lack of safety features, such as barriers or guardrails, reflect discretionary decisions for which [the Texas Department of Transportation] retains immunity under the Act’s discretionary-function exception.”); San Miguel, 2 S.W.3d at 250 (State was immune from suit for using barrels to warn of missing guardrail because “[d]ecisions about highway design and about what type of safety features to install are discretionary policy decisions”); Rodriguez, 985 S.W.2d at 85 ; Wenzel, 852 S.W

2015State 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. Hathorn, 2012 WL 5 2989235

2012See id. at 679 ; see also Tex. Civ.

2012See id. at 679 ; see also Tex. Civ.

2012Thus, [the claimant]’s petition d[id] not state a premise-defect claim under the Act.” Id. (citations omitted); see also Brazoria Cnty. v. Van Gelder, 304 S.W.3d 447, 454 (Tex. App.—Houston [14th Dist.] 2009, pet. denied) (concluding that even if pavement sloped at steep or abrupt angle, roadway’s design reflected discretionary act for which governmental unit retained immunity); Berry v. City of Reno, 107 S.W.3d 128, 132-33 (Tex. App.—Fort Worth 2003, no pet.) (holding that section 101.056(2) of civil practice and remedies code barred plaintiffs’ suit based on allegedly negligent “design and c

2012Thus, [the claimant]'s petition d[id] not state a premise-defect claim under the Act." Id . (citations omitted); see also Brazoria Cnty. v. Van Gelder , 304 S.W.3d 447, 454 (Tex. App.--Houston [14th Dist.] 2009, pet. denied) (concluding that even if pavement sloped at steep or abrupt angle, roadway's design reflected discretionary act for which governmental unit retained immunity); Berry v. City of Reno , 107 S.W.3d 128, 132-33 (Tex. App.--Fort Worth 2003, no pet.) (holding that section 101.056(2) of civil practice and remedies code barred plaintiffs' suit based on allegedly negligent "design

2012Thus, [the claimant]'s petition d[id] not state a premise-defect claim under the Act." Id . (citations omitted); see also Brazoria Cnty. v. Van Gelder , 304 S.W.3d 447, 454 (Tex. App.--Houston [14th Dist.] 2009, pet. denied) (concluding that even if pavement sloped at steep or abrupt angle, roadway's design reflected discretionary act for which governmental unit retained immunity); Berry v. City of Reno , 107 S.W.3d 128, 132-33 (Tex. App.--Fort Worth 2003, no pet.) (holding that section 101.056(2) of civil practice and remedies code barred plaintiffs' suit based on allegedly negligent "design

2012Thus, [the claimant]’s petition d[id] not state a premise-defect claim under the Act.” Id. (citations omitted); see also Brazoria Cnty. v. Van Gelder, 304 S.W.3d 447, 454 (Tex. App.—Houston [14th Dist.] 2009, pet. denied) (concluding that even if pavement sloped at steep or abrupt angle, roadway’s design reflected discretionary act for which governmental unit retained immunity); Berry v. City of Reno, 107 S.W.3d 128, 132-33 (Tex. App.—Fort Worth 2003, no pet.) (holding that section 101.056(2) of civil practice and remedies code barred plaintiffs’ suit based on allegedly negligent “design and c

2004Mogayzel v. Texas Dep’t of Transp., 66 S.W.3d 459, 466 (Tex.App.-Fort Worth 2001, pet. denied).

2003Mogayzel v. Texas Dep’t of Transp ., 66 S.W.3d 459, 466 (Tex. App.—Fort Worth 2001, pet. denied).

2007This provision is commonly referred to as the A discretionary function exception. @ See Mitchell v. City of Dallas , 855 S.W.2d 741, 745 (Tex. App.--Dallas 1993), aff = d , 870 S.W.2d 21 (Tex. 1994).

2005See Mitchell v. City of Dallas, 855 S.W.2d 741, 745 (Tex.App.-Dallas 1993), aff'd, 870 S.W.2d 21 (Tex.1994). *911 The discretionary function exception to waiver of sovereign immunity is designed to avoid judicial review of governmental policy decisions.

2007For instance, the Act does not waive immunity for decisions about highway design or what types of safety features to install, because these decisions involve the exercise of discretion." (citation omitted)); County of Cameron v. Brown, 80 S.W.3d 549, 554 (Tex.2002) ("But the Act does not waive immunity for discretionary decisions, such as whether and what type of safety features to provide.”); Texas Dep’t of Transp. v. Ramirez, 74 S.W.3d 864, 867 (Tex.2002) (per curiam) ("However, the median’s slope and the lack of safety features, such as barriers or guardrails, reflect discretionary decision

2007For instance, the Act does not waive immunity for decisions about highway design or what types of safety features to install, because these decisions involve the exercise of discretion." (citation omitted)); County of Cameron v. Brown, 80 S.W.3d 549, 554 (Tex.2002) ("But the Act does not waive immunity for discretionary decisions, such as whether and what type of safety features to provide."); Texas Dep't of Transp. v. Ramirez, 74 S.W.3d 864, 867 (Tex. 2002) (per curiam) ("However, the median's slope and the lack of safety features, such as barriers or guardrails, reflect discretionary decisio

2019Johnson, 572 S.W.3d at 665– 68 (Water District’s decision to grade riverbed to certain depth was discretionary decision for which immunity was not waived); San Miguel, 2 S.W.3d at 251 ; Ramirez, 74 S.W.3d at 867 ; see also Smith v. Galveston Cty., 326 S.W.3d 695, 700 (Tex. App.—Houston [1st Dist.] 2010, no pet.) (decisions regarding installation of safety features are discretionary determinations for which governmental unit is immune). –5– Accordingly, we conclude the trial court erred in denying the County’s plea to the jurisdiction on Garcia’s claims involving restraints.

2016See United States v. Gaubert, 499 U.S. 315, 322 (1991) (Federal Tort Claims Act’s discretionary-function exception applies only to acts that “‘involv[e] an element of judgment or choice,’” and “[t]he requirement of judgment or choice is not satisfied if a ‘federal statute, regulation, or policy specifically prescribes a course of action for an employee to follow,’ because ‘the employee has no rightful option but to adhere to the directive.’” (quoting Berkovitz v. United States, 486 U.S. 531, 536 (1998))); see also Flynn, 228 S.W.3d at 661–62 (Hecht, J., concurring) 9 (“The discretionary functi

2015State 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. Hathorn, 2012 WL 5 2989235

2015Transp., 635 S.W.2d 581, 582 (Tex.App.—Dallas 1982, writ ref’d n.r.e.) (“We hold, therefore, that a decision to add guardrails to the overpass in question was discretionary and therefore exempted”).

2015State 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. Hathorn, 2012 WL 5 2989235