Christopher Lee Cross v. State ( 2005 )

BRIAN MILLSAP V. SHOW TRUCKS USA, INC. NO. 07-05-0219-CR IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL B

SEPTEMBER 27, 2005 ______________________________

CHRISTOPHER LEE CROSS,

Appellant

v.

THE STATE OF TEXAS,

Appellee _________________________________

FROM THE 64th DISTRICT COURT OF HALE COUNTY;

NO. B15360-0402; HON. ROBERT W. KINKAID JR., PRESIDING _______________________________

ABATEMENT AND REMAND __________________________________

Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.

Christopher Lee Cross (appellant), acting pro se, appeals his conviction for possessing a controlled substance. The reporter's record was filed on July 19, 2005, and the clerk's record was filed on August 4, 2005. Thus, appellant's brief was due on September 6, 2005. That date passed without appellant filing a brief, however. So, on September 14, 2005, we notified appellant, by letter, that neither a brief nor an extension of time to file one had been received by the court. Appellant was directed to either respond to our notice or file a brief by September 26, 2005, otherwise the appeal would be abated to the trial court. To date, we have yet to receive either a response or brief.

Consequently, we abate the appeal and remand the cause to the 64th District Court of Hale County (trial court) for further proceedings. Upon remand, the trial court shall immediately cause notice of a hearing to be given and, thereafter, conduct a hearing to determine the following:

1. whether appellant desires to prosecute the appeal; and

2. whether appellant is indigent and entitled to appointed counsel.

We further direct the trial court to issue findings of fact and conclusions of law addressing the foregoing subjects. Should the trial court find that appellant desires to pursue his appeal, is indigent, and has no counsel, then we further direct it to appoint counsel to assist in the prosecution of the appeal. The name, address, phone number, telefax number, and state bar number of the new counsel, if any, who will represent appellant on appeal must also be included in the court's findings of fact and conclusions of law. Furthermore, the trial court shall also cause to be developed 1) a supplemental clerk's record containing the findings of fact and conclusions of law and 2) a reporter's record transcribing the evidence and argument presented at the aforementioned hearing. Additionally, the trial court shall cause the supplemental clerk's record to be filed with the clerk of this court on or before October 27, 2005. Should additional time be needed to perform these tasks, the trial court may request same on or before October 27, 2005.

It is so ordered.

Per Curiam

Do not publish.

introduced at the hearing on the Department's plea to the jurisdiction show traffic at the intersection at the time of the accident was controlled by a stop sign on Loop 171. Directional signs with arrows identifying Highway 273 North and South stood facing the intersection across that highway. The trial court also considered a report signed by registered professional engineer R. T. Abrahamson attached to the response appellants filed to the Department's plea to the jurisdiction. The report describes the signs that would be encountered by a southbound driver approaching the intersection. ⁽³⁾ It states, among other things, that the size of the stop sign "does not appear to be adequate," that the elevation of signs on the far side of the intersection was too low for normal viewing range for a southbound driver, and that the far side of the intersection did not have a large "arrow board sign." It notes also that the superelevation of Highway 273 at the intersection is such that southbound drivers on Loop 171 cannot see the pavement on Highway 273. The report further states that the "height, line of sight, size, conspicuity, legibility, and target value of the signs described do not appear to meet/exceed standards" and that "[s]outhbound drivers do not have adequate stimulus when approaching State Highway 273 in darkness and/or inclement weather ⁽⁴⁾ to respond in a timely manner." The report notes the speed limit for drivers approaching the intersection was 70 mph during the day and 65 mph at night. Abrahamson's conclusions include those that the section of the highway on which the accident occurred is dangerous based on the number of incidents at the intersection involving southbound vehicles, and that revising the signage and median pavement marking provisions would significantly reduce accidents involving southbound drivers. ⁽⁵⁾

Standard of Review

The Department's plea to the jurisdiction challenged the district court's subject matter jurisdiction over appellants' claims against it. Texas Dep't of Transp. v. Jones, 8 S.W.3d 636, 637 (Tex. 1999). The existence of the court's subject matter jurisdiction is a legal question that we review de novo. Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex. 1998).

Applicable Law

The State is immune from suit for damages unless it has expressly consented to be sued. Absent the State's consent, a trial court lacks subject matter jurisdiction over a suit against the State. Jones, 8 S.W.3d at 638. This immunity applies to the Department, as a state entity. Texas Dep't of Transp. v. Garza, 70 S.W.3d 802, 806 (Tex. 2002). See Wichita Falls State Hosp. v. Taylor, 106 S.W.3d 692, 694 n.1 (Tex. 2003). A party suing a state entity must establish the State's consent to the suit, and may do so by reference to a statute or a resolution granting express legislative permission. Jones, 8 S.W.3d at 638. To waive the State's sovereign immunity, a statute or resolution must contain a clear and unambiguous expression of the Legislature's waiver of immunity. Wichita Falls State Hosp., 106 S.W.3d at 696.

To the extent the Texas Tort Claims Act creates liability, it waives the State's sovereign immunity from suit for tort claims. § 101.025; Texas Dep't of Transp. v. Ramirez, 74 S.W.3d 864, 866 (Tex. 2002). Section 101.021(2) of the Act provides for the liability of a Texas governmental unit for personal injury and death caused by a condition of real property if the governmental unit would, were it a private person, be liable to the claimant according to Texas law. Section 101.022(a) of the Act provides that for claims arising from premise defects, the governmental unit owes the claimant only the duty a private person owes a licensee on private property, unless the claimant pays for the use of the premises.

The Act's waiver of the State's immunity is subject to exclusions and exceptions, among which are those stated in Section 101.056, excluding claims based on a governmental unit's exercise of discretionary powers, and those stated in Section 101.060, relating to traffic and road control devices.

Analysis

The parties' arguments on appeal center on the application of Sections 101.056 and 101.060(a) to appellants' allegations against the Department. The Department contends appellants' allegations concern the initial selection and placement of traffic control devices and the failure to modify these features, discretionary decisions for which the Department retains immunity.

Appellants seem to contend Section 101.056 does not exclude the Department's failings with respect to the intersection from the Act's waiver of immunity because Section 101.022(a) imposes on the Department the duty to make the roadway safe or warn the public of its dangerous condition. Under appellants' view, the Department therefore does not have discretion to decide whether to comply with that duty, and their allegations the Department failed to comply bring the case within the ambit of Section 101.021(2). Controlling authority compels our disagreement with appellants. The exclusion for discretionary actions under Section 101.056 applies to suits attempting to hold the Department responsible for premises defects. See State ex rel. State Dep't of Highways and Pub. Trans. v. Gonzalez, 82 S.W.3d 322, 325-26 (Tex. 2002); Ramirez, 74 S.W.3d at 866; State v. Rodriguez, 985 S.W.2d 83, 85 (Tex. 1999). Appellants also contend 101.056 has no application here because of the Department's knowledge of the dangerous condition of the intersection. The supreme court's application of Section 101.056 in Ramirez forecloses that contention. Ramirez involved premise defect claims that the Department had failed to correct or warn of a dangerous condition allegedly created by a highway median's slope and the absence of safety features between opposing lanes of traffic. Like here, the plaintiff in Ramirez presented accident reports about similar accidents on the same section of highway to establish its dangerous condition and the Department's knowledge of the dangerous condition. In a per curiam opinion, the supreme court reversed the court of appeals, which had affirmed the trial court's denial of the Department's plea to the jurisdiction, and dismissed the claims, finding them barred by sovereign immunity. The supreme court cited Section 101.056(2) and reiterated its holding in Rodriguez that the design of a public work like a roadway is a discretionary function involving many policy decisions, and the governmental entity responsible may not be sued for such decisions. Ramirez, 74 S.W.3d at 867, citing Rodriguez, 985 S.W.2d at 85. The court also restated its holding in State v. Miguel that decisions about installing safety features are discretionary decisions for which the State may not be sued. Ramirez, 74 S.W.3d at 867, citing State v. Miguel, 2 S.W.3d 249, 251 (Tex. 1999) (per curiam) and Maxwell v. Texas Dep't of Transp., 880 S.W.2d 461, 463 (Tex.App.-Austin 1994, writ denied). ⁽⁶⁾ Ramirez establishes that an allegation the Department knew of the dangerous condition of the intersection does not preclude the application of the discretionary function exclusion stated in Section101.056.

Appellants also assert Section 101.060(a) does not bar their suit because to the extent their claims are based on the signs and traffic control devices at the intersection, they come within the language of Section 101.060(a)(2), relating to the condition of the signs and devices. They note the statement in Gonzalez, 82 S.W.3d at 327, that Section 101.060(a)(2) requires the State to maintain traffic signs in a condition sufficient to perform their intended traffic control function, and argue Section 101.060(a)(2) waives the Department's immunity from suit for its failure to do so here when it was on notice of the defective condition of the control devices from the numerous previous accidents. Again, controlling authority requires that we disagree.

In Gonzalez, the supreme court determined that a traffic sign's susceptibility to vandalism is not a "condition" of the sign under Section 101.060(a)(2). Id. at 328-29. The supreme court also considered the meaning of the term "condition" in Texas Dep't of Transp. v. Garza, 70 S.W.3d 802 (Tex. 2002). There, the court found a traffic sign that accurately stated the established speed limit did not present a "condition" of the sign within the meaning of Section 101.060(a)(2) so as to permit a suit alleging the Department was negligent in failing to correct the 45-mph speed limit near a school. Id. at 807. In so doing, the court stated that the "condition" of a traffic sign or signal referred to in Section 101.060(a)(2) is something "wrong" with the sign or signal. The court further summarized several prior decisions by noting it had found a waiver of immunity under the language of Section 101.060(a)(2) only when the sign or signal was unable to convey the intended traffic control information, or conveyed traffic control information other than what was intended. Id.

Even liberally construed, appellants' pleadings do not allege something "wrong" with the traffic control devices for southbound traffic on Loop 171 approaching its intersection with Highway 273, in the sense case law has applied Section 101.060(a)(2). The signs in place are not alleged to be obstructed from drivers' vision like that in Lorig v. City of Mission, 629 S.W.2d 699 (Tex. 1982) (per curiam), to state wrong information like the erroneous speed limit in Alvarado v. City of Lubbock, 685 S.W.2d 646 (Tex. 1985), or to mislead drivers like the modified red stop light with a left-turn arrow in Sparkman v. Maxwell, 519 S.W.2d 852 (Tex. 1975). Nor do appellants' pleadings assert the traffic control devices were in disrepair or were not activated, like the pavement markers and school zone sign in City of Midland v. Sullivan, 33 S.W.3d 1 (Tex.App.-El Paso 2000, no pet.). As noted, appellants pleaded that the signs and warning devices in place at the time of the accident were not properly sized, configured, and placed. But it is clear from the pleadings and evidence presented here that they were sized, configured and placed in the manner selected by the Department. The propriety of those decisions by the Department does not reflect the "condition" of the signs and devices for purposes of Section 101.060(a)(2). Garza, 70 S.W.3d at 807. Such decisions instead are the type for which the Act retains the State's immunity from suit. See Ramirez, 74 S.W.3d at 867; Texas Dep't of Transp. v. Bederka, 36 S.W.3d 266, 271 (Tex.App.-Beaumont 2001, no pet.).

Appellants' point of error is overruled. The trial court's judgment of dismissal is affirmed.

James T. Campbell

Justice

1. Johnson, C.J., not participating.

2. Reference to sections or the act are to Texas Civil Practice and Remedies Code Annotated (Vernon 1997) unless otherwise noted.

3. The report also makes reference to "well worn" rumble strips that were "almost ineffective."

4. The accident report in the record gives the time of the accident as 2:45 a.m. The report indicates the weather was cloudy and the pavement was dry.

5. Darrell Sehorn also testified at the hearing on jurisdiction. He identified photographs of the intersection depicting skidmarks and the signs in place at the intersection at the time of the accident and those later installed. He also criticized the contours of the ditch on the far side of the intersection.

6. The court in Miguel further stated: "A court should not second-guess a governmental unit's decision about the type of marker or safety device that is the most appropriate." 2 S.W.3d at 251, citing Maxwell, 880 S.W.2d at 464. See also Siders v. State, 970 S.W.2d 189, 192 (Tex.App.-Dallas 1998, pet. denied) ("Lights, signs, and safety features are part of a roadway design; therefore, the placement of stop signs and other safety features are discretionary in nature and cannot give rise to liability under the Tort Claims Act.").