NUMBER 13-15-00542-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG

MASON CASTILLO, Appellant,

v.

CITY OF EDINBURG AND THE UNIVERSITY

OF TEXAS–PAN AMERICAN, Appellees.

On appeal from the 389th District Court

of Hidalgo County, Texas.

MEMORANDUM OPINION

Before Chief Justice Valdez and Justices Garza and Longoria

Memorandum Opinion by Justice Garza 

Appellant Mason Castillo filed suit against The University of Texas–Pan American 

(UTPA)1 and the City of Edinburg (“the City”) for injuries he sustained when he was struck 

 

1 We note that the University of Texas–Pan American (UTPA) ceased to exist in September 2015. 

That entity became a new university, The University of Texas Rio Grande Valley. We refer to the university 

as UTPA because it was so designated at the time of the accident. 
2

by a vehicle while riding his bicycle in a crosswalk on Sugar Road in Edinburg, Texas 

adjacent to the UTPA campus. UTPA and the City each filed a plea to the jurisdiction; 

the trial court granted both pleas. By a single issue, appellant contends the trial court 

erred in granting the pleas because the placement of the yield sign on Sugar Road and 

condition of the crosswalk pavement markings constituted a premises defect, which 

waived the City’s and UTPA’s sovereign immunity. See TEX. CIV. PRAC. & REM. CODE 

ANN. §§ 101.021(2), 101.022 (West, Westlaw through 2015 R.S.). We affirm. 

I. BACKGROUND

On February 22, 2013, Castillo, a student at UTPA, was crossing Sugar Road on 

his bicycle in the crosswalk between the Wellness and Recreation Sports Complex and 

the UTPA main campus when he was struck by a northbound pickup driven by Carlos 

Valdez Jr. Castillo sued UTPA and the City, alleging that the yield signs were in a 

defective condition because they were placed too close to the crosswalk and the 

pavement markings were too faded to be clearly visible to drivers. Castillo alleged that 

the defendants’ failure to maintain or repair the condition of the yield signs and pavement 

markings proximately caused his injuries. 

The City filed a plea to the jurisdiction, in which it argued that there was no waiver 

of its governmental immunity because: (1) it did not receive notice of appellant’s claims 

within six months of the date of the accident, as required by section 101.101 of the civil 

practice and remedies code, see id. § 101.101 (West, Westlaw through 2015 R.S.); (2) 

the design of the crosswalk was entirely discretionary; (3) there was nothing wrong with 

the crosswalk and the City did not have notice of a condition that needed correction; and 

(4) the condition of the crosswalk did not cause or contribute to the accident. As evidence, 
3

the City attached: (1) a copy of the police report regarding the accident; (2) photographs 

of the accident; (3) excerpts from Valdez’s deposition testimony; (4) a copy of the citation 

issued to the City reflecting that the City was served with the lawsuit on November 12, 

2013; (5) an affidavit by Estella Hinojosa, the City’s Risk Management Coordinator, 

stating that the City received no notice of Castillo’s claim prior to being served with the 

lawsuit; and (6) an affidavit by Ponciano Longoria, the City’s Director of Public Works, 

stating that the crosswalk was repainted in August 2012 and that the City had no notice 

of any need for repairs to the crosswalk prior to being served with Castillo’s suit. 

UTPA filed a plea to the jurisdiction, in which it argued that its sovereign immunity 

was not waived because: (1) claims based on the performance or nonperformance of a 

governmental unit’s discretionary acts—such as the failure to place traffic or road signals 

or warnings—are exempted from the waiver of immunity for premises defects, see id. §

101.056 (West, Westlaw through 2015 R.S.); (2) Castillo has not alleged a viable 

premises liability claim; and (3) the evidence established that the crosswalk markings did 

not proximately cause the accident. In support of its plea, UTPA attached: (1) a copy of 

the police report regarding the accident; (2) a video showing the accident2; (3) excerpts 

from Castillo’s deposition testimony; (4) Castillo’s interrogatory responses; (5) excerpts 

from Valdez’s deposition testimony; (6) photographs of the scene of the accident; (7) a 

copy of the Interlocal Cooperation Contract between the City and UTPA regarding the 

purchase, installation, and maintenance of crosswalk signage; (8) Castillo’s live petition; 

and (9) Ponciano Longoria’s affidavit stating that the July 8, 2010 Interlocal Cooperation 

 

2 The affidavit of Martin V. Baylor, which accompanied the video, stated that video of the accident 

was captured by one of several video cameras installed on the UTPA campus for security purposes. The 

video is not included in the record before us. 
4

Contract ended on May 31, 2010 and that at the time of the accident on February 22, 

2013, the City owned and maintained Sugar Road and the crosswalk where the accident 

occurred. 

On October 19, 2015, the trial court granted the City’s and UTPA’s pleas to the 

jurisdiction without stating the grounds for its rulings. 

II. STANDARD OF REVIEW AND APPLICABLE LAW

A plea to the jurisdiction is a dilatory plea; its purpose is “to defeat a cause of action 

without regard to whether the claims asserted have merit.” Bland Indep. Sch. Dist. v. 

Blue, 34 S.W.3d 547, 554 (Tex. 2000). The plea challenges the trial court's jurisdiction 

over the subject matter of a pleaded cause of action. Tex. Dep't of Parks & Wildlife v. 

Miranda, 133 S.W.3d 217, 226 (Tex. 2004); Tex. Parks & Wildlife Dep't v. Morris, 129 

S.W.3d 804, 807 (Tex. App.—Corpus Christi 2004, no pet.). Subject-matter jurisdiction 

is a question of law; therefore, an appellate court reviews de novo a trial court's ruling on 

a plea to the jurisdiction. Miranda, 133 S.W.3d at 226; Morris, 129 S.W.3d at 807.

“Sovereign immunity includes two distinct principles, immunity from suit and 

immunity from liability.” Miranda, 133 S.W.3d at 224. “Immunity from liability is an 

affirmative defense, while immunity from suit deprives a court of subject matter 

jurisdiction.” Id. Because immunity from suit defeats a trial court's subject-matter 

jurisdiction, it may be properly asserted in a jurisdictional plea. Id. at 225–26. In a suit 

against a governmental unit, the plaintiff must affirmatively demonstrate the court's 

jurisdiction by alleging a valid waiver of immunity. Dallas Area Rapid Transit v. Whitley, 

104 S.W.3d 540, 542 (Tex. 2003). We assume the truth of the jurisdictional facts alleged 

in the pleadings unless the defendant presents evidence to negate their existence. 
5

Miranda, 133 S.W.3d at 226–27. If a plea to the jurisdiction challenges the jurisdictional 

facts, we consider relevant evidence submitted by the parties to resolve the jurisdictional 

issues raised. City of Waco v. Kirwan, 298 S.W.3d 618, 622 (Tex. 2008) (citing Miranda, 

133 S.W.3d at 227); see Bland Indep. Sch. Dist., 34 S.W.3d at 555. If that evidence 

creates a fact issue as to jurisdiction, then it is for the fact-finder to decide. City of Waco, 

298 S.W.3d at 622; Miranda, 133 S.W.3d at 227–28. “However, if the relevant evidence 

is undisputed or fails to raise a fact question on the jurisdictional issue, the trial court rules 

on the plea to the jurisdiction as a matter of law.” Miranda, 133 S.W.3d at 228. After the 

defendant “asserts and supports with evidence that the trial court lacks subject[-]matter 

jurisdiction, we simply require the plaintiffs, when the facts underlying the merits and 

subject matter jurisdiction are intertwined, to show that there is a disputed material fact 

regarding the jurisdictional issue.” Id. This standard “generally mirrors” that of a 

traditional motion for summary judgment. Id. When reviewing a plea to the jurisdiction in 

which the pleading requirement has been met and evidence has been submitted to 

support the plea that implicates the merits of the case, we take as true all evidence 

favorable to the non-movant. Id.; see County of Cameron v. Brown, 80 S.W.3d 549, 555 

(Tex. 2002). We do not “weigh the claims’ merits but must consider only the plaintiffs’ 

pleadings and the evidence pertinent to the jurisdictional inquiry.” Brown, 80 S.W.3d at 

555.

The Texas Supreme Court has long recognized that sovereign immunity, unless 

waived, protects the State of Texas, its agencies, and its officials from lawsuits for 

damages, absent legislative consent to sue the State. Miranda, 133 S.W.3d at 224. 
6

Sovereign immunity protects public universities. Wichita Falls State Hosp. v. Taylor, 106 

S.W.3d 692, 694 n.3 (Tex. 2003).

“The Texas Tort Claims Act [TTCA] provides a limited waiver of sovereign 

immunity.” Miranda, 133 S.W.3d at 224 (citations omitted). Sections 101.021 and 

101.022 of the TTCA waive immunity in only three scenarios: (1) negligent operation or 

use of a motor-driven vehicle or equipment by a state employee; (2) negligent use of 

tangible personal property by a state employee, see TEX. CIV. PRAC. & REM. CODE ANN. § 

101.021; and (3) premises defects, see id. § 101.022.

If a claim arises from a premise defect and the recreational use statute does not 

apply,3the governmental entity 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.4 Id. § 101.022(a); Sampson v. Univ. of Tex. at Austin, No. 14–0745, 

___S.W.3d ___, ___, 2016 WL 3212996, at *2 (Tex. June 10, 2016); City of Irving v. 

Seppy, 301 S.W.3d 435, 441 (Tex. App.—Dallas 2009, no pet.). This duty requires the 

landowner to avoid injuring a licensee by willful, wanton or grossly negligent conduct, and 

to use ordinary care either to warn a licensee of, or to make reasonably safe, a dangerous 

condition of which the owner is aware and the licensee is not. Sampson, 2016 WL 

3212996, at *2; State Dep't of Highways & Pub. Transp. v. Payne, 838 S.W.2d 235, 237 

(Tex. 1992) (op. on reh'g); Seppy, 301 S.W.3d at 441. To be subject to the duty to warn 

 

3 The recreational use statute applies only if a person enters premises owned, operated, or 

maintained by a governmental unit and engages in recreation on those premises. See TEX. CIV. PRAC. &

REM. CODE ANN. 75.002(f) (West, Westlaw through 2015 R.S.). There are no such allegations in this case. 

4 We note that appellant asserts that, because he was a student at UTPA at the time of the 

accident, he “paid for the use of the premises” and was therefore an invitee as to UTPA. Because our 

disposition focuses on appellant’s failure to show that any breach by either appellee proximately caused 

his injuries, we need not address appellant’s invitee argument. See TEX. R. APP. P. 47.1. 
7

or make reasonably safe, the governmental entity must have actual knowledge of the 

dangerous condition. Sampson, 2016 WL 3212996, at *6; City of Corsicana v. Stewart, 

249 S.W.3d 412, 413–14, 416 (Tex. 2008) (per curiam); City of Dallas v. Giraldo, 262 

S.W.3d 864, 869 (Tex. App.—Dallas 2008, no pet.); Payne, 838 S.W.2d at 237. 

Constructive knowledge of the defect is insufficient. Sampson, 2016 WL 3212996, at *6;

Stewart, 249 S.W.3d at 414–16.

Absent willful, wanton, or grossly negligent conduct, a licensee must 

prove the following elements to establish the breach of duty owed to him: 

(1) a condition of the premises created an unreasonable risk of harm to the 

licensee; (2) the owner actually knew of the condition; (3) the licensee did 

not actually know of the condition; (4) the owner failed to exercise ordinary 

care to protect the licensee from danger; [and] (5) the owner's failure was a 

proximate cause of injury to the licensee. Payne, 838 S.W.2d at 237. 

Therefore, if [UTPA and the City] can show there was no evidence of one 

of these elements, [their] plea[s] to the jurisdiction should be granted. See 

[Univ. of Tex.–Pan American v. Aguilar, 251 S.W.3d 511, 512, 514 (Tex. 

2008)]. 

Sampson, 2016 WL 3212996, at *6. 

III. DISCUSSION

UTPA and the City each argued—in their pleas to the jurisdiction and on appeal—

that appellant failed to show any evidence that any acts or omissions by UTPA or the 

City—the placement of the yield signs or the alleged failure to maintain the pavement 

markings—proximately caused his injuries because his injuries were caused solely by 

Valdez’s inattention. We agree. 

In his deposition testimony, Valdez testified that, at the time of the accident, he 

was a student at UTPA. On the day of the accident, he had dropped off his ex-girlfriend 

and was headed back to her apartment, a routine trip he had made “more than probably 

55, 70 times.” He was familiar with the crosswalk and had stopped for pedestrians there 
8

“many times.” When asked if he had any trouble seeing the pavement markings or the 

yield sign, Valdez replied, “No.” He stated that when he was about fifteen or twenty feet 

from the crosswalk, he was waving at a girl and did not see Castillo prior to hitting him. 

The City’s attorney elicited the following testimony: 

Q [City’s counsel]: Okay. But what I’m asking more is, was there anything 

that you—about the crosswalk, like was it obstructed, 

was the sign that says to yield to pedestrians 

obstructed, could you not see the stripes on the road, 

anything like that, that you would say in any way 

contributed to the accident?

A [Valdez]: No. 

Q: Okay.

A: It was second nature at that point. I already had been 

at Pan Am for so long.

Q: This is simply you not seeing anybody at the crosswalk 

and then becoming distracted momentarily?

A: Yes. 

Appellant argues that a fact issue exists regarding whether the condition of the 

pavement markings and the location of the yield sign proximately caused his injuries. 

According to appellant, the condition of the pavement markings and location of the yield

sign were substantial factors in bringing about his injuries. Appellant cites Pitts v. Winkler 

County, 351 S.W.3d 564, 576 (Tex. App.—El Paso 2011, no pet.), and City of Midland v. 

Sullivan, 33 S.W.3d 1 (Tex. App.—El Paso 2000, pet. dism’d w.o.j.), for the proposition 

that it is not necessary for a plaintiff to show that a defective property condition directly 

caused his injuries; rather, it is sufficient for a plaintiff to show that the defective property 

was a substantial factor in bringing about his injuries. See Pitts, 351 S.W.3d at 576; City 

of Midland, 33 S.W.3d at 9. 
9

We find both cases distinguishable. In Pitts, an oil spill occurred on a county road 

in Winkler County. See Pitts, 351 S.W.3d at 569. The county’s foreman in charge of 

maintaining the roads in the precinct covered the spill with dirt. See id. An accident 

occurred when a driver’s car failed to stop at a stop sign and crashed into the plaintiff’s 

car. See id. The plaintiff sued the county, alleging that the oil spill covered with dirt 

constituted a premises defect. See id. The county argued that the plaintiff’s injuries were 

caused by the driver running the stop sign. See id. at 576. The El Paso Court of Appeals, 

however, citing City of Midland, rejected the county’s argument and found that the dirt 

and oil mixture “was at least a substantial factor” in bringing about the plaintiff’s injuries. 

See id. 

In City of Midland, a high school student was struck by a vehicle as he walked 

through a crosswalk. See City of Midland, 33 S.W.3d at 5. His parents sued, alleging 

that the crosswalk was defective because the pavement markers were not clearly visible 

to motorists. See id. at 6. The City argued that the condition of the crosswalk merely 

furnished the condition which made the injury possible, but did not cause the student’s 

injuries. See id. at 8. The El Paso Court of Appeals disagreed, finding that the condition 

of the property (the defective and inadequate condition of the pavement markers and 

warning signs) was a substantial factor in bringing about the student’s injuries. See id. at 

9. 

In Pitts, the evidence showed that the dirt on the road disguised the oil spill and 

there was no way for a driver to know that the area was slick as he approached the 

intersection. See Pitts, 351 S.W.3d at 573. The driver was unable to stop due to the oil 

and dirt mixture on the road. See id. In City of Midland, the pleadings alleged that the 
10

motorist was unaware of the school zone due to the defective and inadequate condition 

of the pavement markers and the warning signs. See City of Midland, 33 S.W.3d at 9. In 

contrast, the evidence in the present case shows that Valdez was familiar with the 

crosswalk and had stopped there “many times.” Valdez testified unequivocally that there 

was nothing about the condition of the crosswalk that contributed to the accident. 

Appellant did not produce any evidence to the contrary. 

Appellant points to Valdez’s deposition testimony in which he stated that if the yield 

sign were placed further away from the crosswalk, it would be “more of an alert” because 

a sign “right on top of the crosswalk” does not provide “much notice.” However, even 

assuming that moving the yield sign would provide more notice, notice was not at issue 

because Valdez was very familiar with the location of the crosswalk. Valdez’s own 

undisputed testimony established that the condition of the pavement markings and 

location of the yield signs were not substantial factors in bringing about appellant’s 

injuries. 

Appellant failed to establish that any acts or omissions by the City or UTPA caused 

his injuries. See Sampson, 2016 WL 3212996, at *6. Because the City and UTPA 

showed that there was no evidence of proximate cause, the trial court did not err in 

granting both pleas to the jurisdiction. See id. We overrule the appellant’s sole issue. 

IV. CONCLUSION

We affirm the trial court’s judgment. 

DORI CONTRERAS GARZA

Justice

Delivered and filed the

1st day of December, 2016.