NO. 01-14-00720-CV

__________________________________________________________________ 

IN THE COURT OF APPEALS 

FOR THE FIRST DISTRICT OF TEXAS 

AT HOUSTON, TEXAS 

__________________________________________________________________ 

CITY OF LEAGUE CITY 

Appellant 

V.

CHRISTOBELLE LEBLANC AND STANFORD LEBLANC 

Appellees 

__________________________________________________________________ 

On Appeal from the 122nd Judicial District Court of Galveston County, Texas 

No. 12CV2828 

Honorable John Ellisor, Presiding 

__________________________________________________________________ 

REPLY BRIEF OF APPELLANT 

__________________________________________________________________ 

Patricia L. Hayden OLSON & OLSON, L.L.P.

State Bar No. Wortham Tower, Suite 600 

phayden@olsonllp.com 2727 Allen Parkway 

Eric C. Farrar Houston, Texas 77019

State Bar No. 24036549 Telephone: (713) 533-3800 

efarrar@olsonllp.com Facsimile: (713) 533-3888

ATTORNEYS FOR APPELLANT 

THE CITY OF LEAGUE CITY 

ORAL ARGUMENT REQUESTED 

ACCEPTED

01-14-00720-CV

FIRST COURT OF APPEALS

HOUSTON, TEXAS

1/7/2015 1:04:26 PM

CHRISTOPHER PRINE

CLERK

 FILED IN 1st COURT OF APPEALS HOUSTON, TEXAS 1/7/2015 1:04:26 PM CHRISTOPHER A. PRINE Clerk
City of League City’s Reply Brief

No. 01-14-00720-CV

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TABLE OF CONTENTS

TABLE OF CONTENTS.......................................................................................... ii

APPENDIX.............................................................................................................. iii

INDEX OF AUTHORITIES.....................................................................................iv

ISSUE PRESENTED................................................................................................vi

The trial court erred by denying the City’s plea to the jurisdiction. ..............vi

REPLY ARGUMENT ...............................................................................................1

I. The LeBlancs have limited their premises defect case to a complaint of 

special defect only. .........................................................................................1

II. The City did not control the premises. ........................................................2

A. The design and construction of the highway and its storm sewer 

drain were entirely within the control of the State, not the City....4

B. The City does not have any other control over the premises to 

impose liability for the State’s design and construction of the 

highway and storm sewer drain.........................................................5

III. The storm sewer drain at issue was not a special defect..........................11

IV. Section 101.0215 of the Texas Civil Practice and Remedies Code does 

not waive immunity .....................................................................................13

V. The City had no knowledge of the alleged defect .....................................14

PRAYER..................................................................................................................16

CERTIFICATE OF COMPLIANCE.......................................................................17

CERTIFICATE OF SERVICE ................................................................................18
City of League City’s Reply Brief

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APPENDIX

TAB

TEX. GOV’T CODE .....................................................................................................1

§ 311.016(2)

§ 311.026

TEX. CIV. PRAC. & REM. CODE................................................................................2

§ 101.0215
City of League City’s Reply Brief

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INDEX OF AUTHORITIES

CASES PAGES

City of Dallas v. Reed, 

258 S.W.3d 620 (Tex. 2008) .........................................................................15

City of Denton v. Page, 

701 S.W.2d 831 (Tex. 1986) ...........................................................................3

City of Denton v. Paper, 

376 S.W.3d 762 (Tex. 2012) ...................................................................13, 15

City of El Paso v. Ayoub,

787 S.W.2d 553 (Tex. App.—El Paso 1990, writ denied)..............................7

City of Kemah v. Vela,

149 S.W.3d 199 (Tex. App.—Houston [14th Dist.] 2004, pet. denied) .......13

City of McAllen v. De La Garza,

898 S.W.2d 809 (Tex. 1995) ...........................................................................3

City of Wylie v. Taylor, 

362 S.W.3d 855 (Tex. App.—Dallas 2012, no pet.)...................................5, 6

Clayton W Williams, Jr., Inc. v. Olivo, 

952 S.W.2d 523 (Tex. 1997) .......................................................................4, 9

County of Cameron v. Brown,

80 S.W.3d 549 (Tex. 2002) ...............................................................4, 5, 9, 10

Denton County v. Beynon,

283 S.W.3d 329 (Tex. 2009) .........................................................................11

Dominguez v. City of Fort Worth,

No. 02-06-00196-CV, 2008 WL 623583

(Tex. App.—Fort Worth March 6, 2008, pet. denied) (mem. op.)............3, 10
City of League City’s Reply Brief

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Dukes v. Philip Johnson/Alan Ritchie Architects, P.C.,

252 S.W.3d 586 (Tex. App.—Fort Worth 2008, pet. denied), 

cert. denied, 555 U.S. 1138 (2009) .................................................................4

Ethio Exp. Shuttle Service, Inc. v. City of Houston,

164 S.W.3d 751 (Tex. App.—Houston [14th Dist.] 2005, no pet.) ..............13

Frank v. Liberty Ins. Corp., 

255 S.W.3d 314 (Tex. App.—Austin 2008, pet. denied)................................8

Harris County v. Estate of Ciccia, 

125 S.W.3d 749 (Tex. App.—Houston [1st Dist.] 2003, pet. denied)..........13

McKinney v. City of Gainesville, 

814 S.W.2d 862 (Tex. App.—Fort Worth 1991, no writ).............................14

Modern v. City of Pasadena,

No. 01-0500337-CV, 2006 WL 560183

(Tex. App.—Houston [1st Dist.] March 9, 2006, pet. denied) (mem. op.)11

Siders v. State,

970 S.W.2d 189 (Tex. App.—Dallas 1998, pet. denied) ................................8

Simpson v. Harris County, 

951 S.W.2d 251 (Tex. App.—Houston [14th Dist.] 1997, no writ)........15, 16

State Dept. of Transp. v. Barraza,

157 S.W.3d 922 (Tex. App.—El Paso 2005, no pet.) .....................................8

The Univ. of Tex.-Pan Am. v. Aguilar, 

251 S.W.3d 511 (Tex. 2008) (per curiam) ....................................................15

Traylor v. Oakview Healthcare Residence, Ltd., 

No. 03-12-00072-CV, 2013 WL 856736

(Tex. App.—Austin Mar. 8, 2013, pet. denied) (mem. op.)............................8

Villarreal v. State,

810 S.W.2d 419 (Tex. App.—Dallas 1991, writ denied)................................8
City of League City’s Reply Brief

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Wal-Mart Stores, Inc. v. Alexander,

868 S.W.2d 322, 324 (Tex. 1993) ...................................................................4

STATUTES AND RULES

43 TEX. ADMINISTRATIVE CODE

§ 29.5 ...............................................................................................................6

§ 29.5(a)...................................................................................................6, 7, 8

§ 29.5(b).......................................................................................................6, 9

§ 29.5(b)(6)......................................................................................................7

TEX. GOV’T CODE (WESTLAW CURRENT THROUGH 2013 SESSION)

§ 311.016(2).....................................................................................................8

§ 311.026 .........................................................................................................8

TEX. CIV. PRAC. & REM. CODE (WESTLAW CURRENT THROUGH 2013 SESSION)

§ 101.021 ...................................................................................................3, 14

§ 101.0215 ...............................................................................................13, 14

TEX. TRANSP. CODE ANN. (WESTLAW CURRENT THROUGH 2013 SESSION)

§ 541.302(16).................................................................................................12
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ISSUE PRESENTED

The trial court erred by denying the City’s plea to the jurisdiction.
REPLY ARGUMENT

I. The LeBlancs have limited their premises defect case to a complaint of 

special defect only.

The LeBlancs alleged that on or about December 4, 2010, Mrs. LeBlanc

stepped into a storm sewer drain in the right-of-way along F.M. 518, injuring her 

ankle. CR 422. The LeBlancs filed this suit against the City of League City and 

Texas Department of Transportation (TxDOT), seeking damages for Mrs. 

LeBlanc’s injuries. CR 6.

TxDOT was dismissed due to the LeBlancs failure to comply with the notice 

provisions of the Texas Tort Claims Act (TTCA). CR 20. The City filed a plea to 

the jurisdiction. The trial court gave the LeBlancs an opportunity to replead. CR 

416. 

In their amended petition, the LeBlancs allege that the area in which Mrs. 

LeBlanc was injured was a sidewalk. CR 422. They allege that she stepped into 

an “uncovered” and “open storm drain, which constituted a special defect.” Id.

The LeBlancs also allege that the City knew or should have known of “the 

defective condition ... caused by the absence of the storm drain’s cover” but do not 

allege facts to support the City’s knowledge. Id. The LeBlancs allege that the City 

negligently failed to: repair the drain, maintain the drain, or provide adequate 

lighting. CR 424–26. 
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Despite the uncontroverted evidence offered by the City in support of its 

plea, the trial court denied the plea. CR 451.

In its plea and on appeal, out of an abundance of caution, the City argued 

that the LeBlancs pleaded three causes of action: premises defect, special defect, 

and negligence. The City then presented arguments, supported by evidence, 

regarding why the LeBlancs could not prevail on any pleaded claim. 

However, the LeBlancs’ appellee’s brief makes clear that the only claim 

they make against the City is for a special defect. See also CR 123, 129–30 

(LeBlancs’ response to plea to the jurisdiction stating that City’s plea misconstrued 

the LeBlancs’ claim regarding storm sewer drain as an ordinary defect instead of a 

special defect); CR 429, 431 (asserting the drain is special defect). The LeBlancs 

do not address the elements of an ordinary premise defect (i.e., the duty owed to a 

licensee) or the elements of a negligence claim in either the responses to the City’s 

pleas to the jurisdiction or the appellee’s brief. Therefore, the only claim at issue 

in this lawsuit is the LeBlancs’ claim that the storm sewer drain is a special defect 

of which the City knew or should have known. Appellees’ Brief, § II.A., pp. 6–10; 

CR 129–30, 429. 

II. The City did not control the premises.

 While the Tort Claims Act provides a limited waiver of a governmental 

entity’s immunity from premises liability suits, “[a]s in any other tort case, a 
City of League City’s Reply Brief

No. 01-14-00720-CV

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plaintiff relying on section 3 of the Act [now TTCA § 101.021(2)] must prove the 

existence and violation of a legal duty owed him by the defendant.” City of 

Denton v. Page, 701 S.W.2d 831, 834 (Tex. 1986). “If a plaintiff fails to prove the 

existence and violation of a legal duty sufficient to impose liability under the 

[TTCA], sovereign immunity remains intact.” Dominguez v. City of Fort Worth,

No. 02-06-00196-CV, 2008 WL 623583, at *2 (Tex. App.—Fort Worth March 6, 

2008, pet. denied) (mem. op.).

Thus, before the Court considers the law question of whether the storm 

sewer drain was a special defect, the Court should first consider whether the City 

owed any duty at all to the LeBlancs. Only if a legal duty is found would the 

inquiry shift to the next step: determination of whether the alleged defect was a 

special defect for which the City would owe an invitee standard of care. The 

existence of a legal duty is a question of law for the court to decide from the facts 

surrounding the occurrence in question. City of McAllen v. De La Garza, 898 

S.W.2d 809 (Tex. 1995). 

The City did not owe a duty of care to the LeBlancs because it did not have 

control of the injury-causing condition on the premises where the accident 

occurred. One of the elements that the LeBlancs must prove in their premises 

liability claim against the City is that the City was a possessor of the premises 

where the allegedly dangerous condition was located. In the absence of such a 
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No. 01-14-00720-CV

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showing, the City owes no duty to the LeBlancs. Demonstrating that the City 

controlled the injury-causing condition on the premises is essential to this theory of 

liability. 

A defendant, who was the owner or occupier of the premises at the 

time of the injury, must have had control of the premises to be liable 

under premises liability. Wal-Mart Stores, Inc. v. Alexander, 868 

S.W.2d 322, 324 (Tex. 1993). Therefore, a plaintiff must prove that 

the defendant had control over and responsibility for the premises 

before a duty can be imposed on the defendant. See County of 

Cameron v. Brown, 80 S.W.3d 549, 556 (Tex. 2002). The control that 

the defendant had over the premises must relate to the condition or 

activity that caused the injury. See Clayton W. Williams, Jr., Inc. v. 

Olivo, 952 S.W.2d 523, 527–28 (Tex. 1997). 

Dukes v. Philip Johnson/Alan Ritchie Architects, P.C., 252 S.W.3d 586, 592 (Tex. 

App.—Fort Worth 2008, pet. denied), cert. denied, 555 U.S. 1138 (2009). 

The relevant inquiry is whether the defendant assumed sufficient 

control over the part of the premises that presented the alleged danger 

so that the defendant had the responsibility to remedy it. 

Brown, 80 S.W.3d at 556.

A. The design and construction of the highway and its storm sewer 

drain were entirely within the control of the State, not the City.

The uncontroverted evidence established that the City did not control the 

injury-causing condition. F.M. 518 is a state highway, a portion of which runs 

through the city limits of League City. CR 78. F.M. 518 was designed by TxDOT

in 1981, and was constructed by TxDOT some time prior to 1985. CR 83.

TxDOT’s design and construction plans contain the design of the roadway, the 
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No. 01-14-00720-CV

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storm drainage system, the traffic control signaling, and the street lighting for the 

section of F.M. 518 that contains the storm sewer drain about which Ms. LeBlanc

complains. CR, 97; CR 87–89, 91. Further, this area was constructed according to 

TxDOT’s design. CR 91. Specifically, the type and location of the grate covering 

the storm sewer drain was a TxDOT design decision, and the street lighting located 

along F.M. 518 (or, as indicated on the plans, the street lighting that was not 

located along F.M. 518) in the area of Ms. LeBlanc’s fall was a TxDOT design 

decision. Id. Thus, any complaint about the location of the storm sewer drain or 

the type of grate covering the drain are complaints about conditions over which the 

City had no control.

B. The City does not have any other control over the premises to 

impose liability for the State’s design and construction of the 

highway and storm sewer drain.

As discussed above, the City had no control over the design, construction, or 

location of the highway or storm sewer drain. Moreover, the City does not own the 

right of way on which F.M. 518 is built. CR 78. The City has not placed any 

street lights along F.M. 518 because the City does not own the right of way on 

which the street lights are located.1 CR 78–79. Furthermore, the City does not 

 

1

Thus, any complaint concerning the lack of lighting cannot support a waiver of the City’s 

immunity. First, the State designed and constructed the highway. Second, “[a] governmental 

unit’s sovereign immunity is not waived for failure to install lighting, which is a discretionary 

decision ....” County of Cameron v. Brown, 80 S.W.3d 549, 557 (Tex. 2002); see also City of 

Wylie v. Taylor, 362 S.W.3d 855, 862 (Tex. App.—Dallas 2012, no pet.) (explaining difference 
City of League City’s Reply Brief

No. 01-14-00720-CV

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maintain any street lights that are along F.M. 518 as it passes through the city 

limits. CR 79. 

In an attempt to show the City’s control over the alleged dangerous 

condition, the LeBlancs’ assert that the City had control over the maintenance of 

the drain and negligently failed to do so. The LeBlancs contend that section 29.5 

of Title 43 of the Texas Administrative Code “specifically states that the City 

controlled F.M. 518 where Ms. LeBlanc was injured” (LeBlancs’ brief at 10), and,

further, that the contract between the State and the City (CR 438) is “consistent 

with” section 29.5 because the contract states all “maintenance, control, 

supervision, and regulation” of F.M. 518 that was “not specifically described as the 

responsibility of the State” remained in the City. (LeBlancs’ brief at 12; CR 442). 

The LeBlancs rely on a single phrase from section 29.5(a) taken out of context to 

support this argument. 

Section 29.5 specifically applies to the maintenance of highways in 

incorporated cities. Section 29.5 specifically assigns responsibility for the 

maintenance of drainage facilities (such as the storm sewer drain in issue) to the 

State. Section 29.5(b) provides, “The department’s maintenance duties on 

noncontrolled access highways [such as F.M. 518] ... shall include ... (6) drainage 

 

between “design and maintenance, such as the distinction between designing a bridge without 

lighting, for which there is immunity, and failing to maintain lighting that was installed, for 

which there may not be immunity”).
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facilities within the limits of the right of way.” 43 Tex. Admin. Code 

§ 29.5(b)(6) (emphasis added). The Leblancs, however, disregard this express 

language and rely on general language found in subsection (a). Subsection (a) 

provides that the State may maintain highway routes when requested by a City,

“provided, all items that affect ... life, health, etc. of ... dwellers within the limits of 

the incorporated cities, ... shall remain a function and responsibility of the 

incorporated cities ....” 43 Tex. Admin. Code § 29.5(a). The LeBlancs’ argument 

fails. 

First, the LeBlanc’s argument assumes that a “lack” of maintenance caused 

Ms. LeBlanc’s injury. The uncontroverted evidence disproves this theory: the 

drain where Ms. LeBlanc was injured was not in need of repair or maintenance. 

The City provided uncontroverted evidence that the drain was in the same 

condition as called for in TxDOT’s plans and did not need any maintenance or 

repair. CR 42, 91. The LeBlancs did not provide any evidence to controvert the 

City’s evidence. Further, the LeBlancs’ pleadings made it clear that their 

complaint about the drain at issue arose from its TxDOT design; not its 

maintenance.

2

“Changing the design is not maintenance.” City of El Paso v. 

 

2

The LeBlancs pleaded that the “absence of the storm drain’s cover,” CR 421, 422, and “no 

street lights in the area where Ms. LeBlanc was walking,” CR 421, 423, constituted a special 

defect. 
City of League City’s Reply Brief

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Ayoub, 787 S.W.2d 553, 554 (Tex. App.—El Paso 1990, writ denied). 

“Maintenance involves preservation of a highway as it was originally designed and 

constructed.” Villarreal v. State, 810 S.W.2d 419, 421 (Tex. App.—Dallas 1991, 

writ denied).3

Second, the LeBlancs’ construction of section 29.5(a) of the Texas 

Administrative Code is contrary to rules pertaining to code construction. The plain 

language of the Administrative Code mandates that TxDOT’s maintenance duties 

“shall include” drainage facilities within the right of way of F.M. 518, a 

noncontrolled access highway. See Tex. Gov’t Code Ann. § 311.016(2) (“‘Shall’

imposes a duty.”).4 To support their position, the Leblancs ignore this specific 

mandate in favor of the more general language of subsection (a). This is incorrect. 

See Tex. Gov’t Code Ann. § 311.026 (providing that specific provision controls 

over inconsistent general provision). Subsection (a) applies generally to any 

highway and, in general terms, instructs cities that they maintain responsibility for 

 

3

See also State Dept. of Transp. v. Barraza, 157 S.W.3d 922, 928 (Tex. App.—El Paso 2005, no 

pet.) (“[M]aintenance is the continuing implementation of a previous policy decision.”); Siders v. 

State, 970 S.W.2d 189, 193 (Tex. App.—Dallas 1998, pet. denied) (finding a duty to maintain 

highway as designed). 

4

The Code Construction Act applies to agency rules adopted under a code. Tex. Gov’t Code 

Ann. § 311.002(4); Traylor v. Oakview Healthcare Residence, Ltd., No. 03-12-00072-CV, 2013 

WL 856736, at *5 n.7 (Tex. App.—Austin Mar. 8, 2013, pet. denied) (mem. op.); see also Frank 

v. Liberty Ins. Corp., 255 S.W.3d 314, 324 (Tex. App.—Austin 2008, pet. denied) (applying 

section 311.016(2) to Texas Administrative Code provision).
City of League City’s Reply Brief

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items that affect “life, health, etc.” of residents, which the LeBlancs assert includes 

drains. In contrast, subsection (b) specifically applies to noncontrolled access 

highways and specifically mentions drainage facilities. Subsection (b) therefore 

controls. See id. 

The plain, specific language of section 29.5(b) also defeats the LeBlanc’s 

argument that the contract between TxDOT and the City establishes the City’s 

control. The contract states that the City will: “Retain all functions and 

responsibilities for maintenance, control, supervision, and regulation which are not 

specifically described as the responsibility of the State.” CR 442. However, the 

Texas Administrative Code imposes the duty upon the State to maintain drainage 

facilities in the right of way. In the language of the contract, the responsibility for 

maintenance is “specifically described as the responsibility of the State.” Because 

the plain, express language of the applicable law and the contract place the duty of 

maintaining the drain on the State, not the City, the City did not control the 

premises at issue, and therefore, cannot be held liable. See County of Cameron v. 

Brown, 80 S.W.3d 549, 556 (Tex. 2002); Clayton W. Williams, Jr., Inc. v. Olivo, 

952 S.W.2d 523, 527–28 (Tex. 1997).

Finally, the LeBlancs’ pleadings and their appellee’s brief make clear that 

their complaints are actually about the design and placement of the storm sewer 

drain and grate, not its maintenance. For example, the LeBlancs pleaded, “While 
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walking along the unlit or poorly lighted F.M. 518, Ms. LeBlanc did not expect to 

usually encounter an uncovered, unmarked hole like the subject storm drain, which 

was located where a pedestrian would normally walk on a street constituting a 

special defect.” CR 423. The decision not to install lighting was a design decision

of the State. The design of the grate covering the storm sewer drain was a design 

decision by the State. There are no allegations of facts concerning improper 

maintenance or repair of the storm sewer drain. In fact, uncontroverted evidence 

establishes that no maintenance or repairs were needed and that the lack of any 

maintenance or repairs therefore did not cause a dangerous condition. 

Because the storm sewer drain was designed and installed by the State, not 

the City, the storm sewer drain was not on the City’s property, and the City had no 

duty to maintain the storm sewer drain, the City had no control over the drain or 

surrounding premises. Because the City had no control over the premises, it owed 

no duty to the LeBlancs. See Brown, 80 S.W.3d at 556. Absent a duty, the City 

cannot be held liable, and the TTCA does not waive immunity. See City of 

Denton, 701 S.W.2d at 834; Dominguez, 2008 WL 623583, at *2.
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III. The storm sewer drain at issue was not a special defect.

The Tort Claims Act does not define “special defect” other than to liken it to

“excavations or obstructions on highways, roads, or streets ....” See Denton 

County v. Beynon, 283 S.W.3d 329, 331 (Tex. 2009) citing Tex. Civ. Prac. & Rem. 

Code § 101.022(b). The Supreme Court has recently noted:

The Legislature has specifically limited special defects to conditions 

‘such as excavations or obstructions on highways, roads, or streets.’

Accordingly, we decline to expand the statutory definition beyond its 

terms.

Id. at 333. A “special defect” must be of the same kind or class as an 

excavation or obstruction that poses a threat to “ordinary users” of the roadway 

in the manner that an excavation or obstruction would pose. See Beynon, 283 

S.W.3d at 332 (holding that a 17-foot floodgate arm located 3 feet off a twolane rural roadway, which was unsecured and wrongly facing traffic, was not a 

special defect). See also Modern v. City of Pasadena, No. 01-0500337-CV, 

2006 WL 560183, at *3 (Tex. App.—Houston [1st Dist.] March 9, 2006, pet. 

denied) (mem. op.) (holding that covered manhole, which slipped when stepped 

on, was not special defect; it was not in the roadway, but instead, was located 

more than five feet from the road, so that vehicular passengers and other normal 

users of the roadway were unlikely to encounter it).
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Here, the LeBlancs’ allegations involve a storm sewer drain, which is 

located approximately 8 feet from the roadway of F.M. 518. CR 107–08. It 

does not pose a threat to ordinary users of the roadway. Ms. LeBlanc was not 

using the roadway; she was a pedestrian on the side of a roadway. CR 66. As a 

matter of law, the storm sewer drain is not a special defect.

The LeBlancs’ argument is premised largely upon the assertion that the drain 

is located in or on a sidewalk. The Transportation Code defines a sidewalk as “the 

portion of a street that is: (A) between a curb or lateral line of a roadway and the 

adjacent property line; and (B) intended for pedestrian use.” Tex. Transp. Code 

Ann. § 541.302(16). There is no evidence that the area off the paved portion of 

F.M.518, beyond the curb, is “intended for pedestrian use.” It is uncontroverted 

that at the time of Ms. LeBlanc’s fall, there was no walkway or path constructed in 

the area “between a curb or lateral line of a roadway and the adjacent property 

line.” CR 107. Nor do the LeBlancs provide argument or analysis of subsection 

(B), ignoring it in favor of subsection (A). The two subsections, however, are 

connected by an “and”; therefore, both conditions must be satisfied. No evidence, 

no analysis, and no law support the underlying premise of the LeBlancs’ position 

in this case, that the area in which the drain is located is a sidewalk because it is 

“intended for pedestrian use.” For this reason, the LeBlancs’ argument that Ms. 
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LeBlanc was an ordinary user of the area near the drain and the citations to cases 

dealing with special defects on sidewalks are inapposite.

Except for their assertion that the drain occurred on a sidewalk, the LeBlancs 

provide no argument or analysis to support their contention that the drain was a 

special defect, rather than an ordinary premise defect. In particular, the LeBlancs 

do not respond to the contentions in the City’s opening brief that the drain is not a 

special defect. For example, the drain does not physically impair the ability of a 

normal user to travel on the roadway. See City of Denton v. Paper, 376 S.W.3d 

762, 766 (Tex. 2012). Also, the drain, because it is in the same condition as it was

designed and installed by TxDOT, does not present an unusual or unexpected 

condition apart from the ordinary course of events. See Harris County v. Estate of 

Ciccia, 125 S.W.3d 749, 754 (Tex. App.—Houston [1st Dist.] 2003, pet. denied).

IV. Section 101.0215 of the Texas Civil Practice and Remedies Code does 

not waive immunity.

The LeBlancs’ argument that section 101.0215 of the Texas Civil Practices 

and Remedies Code waives the City’s immunity for “street design” and “street 

maintenance” decisions (Appellees’ Brief, § II. F., p. 21) has been routinely 

rejected by Texas courts. See Ethio Exp. Shuttle Service, Inc. v. City of Houston,

164 S.W.3d 751, 757 (Tex. App.—Houston [14th Dist.] 2005, no pet.) (“[M]erely 

engaging in a governmental function does not automatically waive the City’s 
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14

sovereign immunity.”); City of Kemah v. Vela, 149 S.W.3d 199, 204 (Tex. App.—

Houston [14th Dist.] 2004, pet. denied) (“However, this section [101.0215] merely 

provides a nonexclusive list of governmental functions for which a municipality 

may be held liable under the Tort Claims Act generally; it does not provide an 

independent basis for a waiver of governmental immunity. [citation omitted] To 

hold a municipality liable under section 101.0215, liability must still arise out of 

one of the specific areas of waiver listed under section 101.021.”); McKinney v. 

City of Gainesville, 814 S.W.2d 862, 865 (Tex. App.—Fort Worth 1991, no writ) 

(“Nevertheless, even assuming that the City’s actions fall within section 101.0215, 

we do not view this as waiving the City’s governmental immunity.”).

V. The City had no knowledge of the alleged defect. 

The LeBlancs contend that the City did not meet its burden to disprove its 

actual knowledge of the purportedly unreasonably dangerous storm sewer drain. 

The LeBlancs assert that the City does not “identify ... the ‘City employee

responsible for acting’” on information relating to the condition of the drain. 

(LeBlancs’ brief at 9). The LeBlancs also posit that the City did not meet its 

burden because it did not offer proof of “a failsafe system that guarantees any 

knowledge of the Defendant would in fact be recorded.” (Id.) Therefore, the 

LeBlancs contend, the City’s affidavits are “conclusory and not readily 

controvertible.” (Id.)
City of League City’s Reply Brief

No. 01-14-00720-CV

15

The affidavit of Kenneth Farrow shows that he is the City employee 

responsible for acting on repair and maintenance issues for drains and streets. CR 

77 (“The Streets and Storm Water Division is responsible for all of the street 

maintenance and storm water drainage in the city limits of League City, with the 

exception of the streets, storm water drainage, and traffic signs that are on the 

Texas Department of Transportation’s right of way.”). The LeBlancs assertion that 

the City did not identify the employee responsible for acting is incorrect.

Concerning the LeBlancs argument that there is no evidence of a “failsafe”

system to ensure the recordation of complaints or reports of an unsafe condition 

posed by the drain, the LeBlancs cite no authority imposing any such requirement.

In determining whether a premises owner has actual knowledge, “courts generally 

consider whether the premises owner has received reports of prior injuries or 

reports of the potential danger presented by the condition.” City of Dallas v. Reed, 

258 S.W.3d 620, 622 (Tex. 2008) (citing The Univ. of Tex.-Pan Am. v. Aguilar, 

251 S.W.3d 511 (Tex. 2008) (per curiam)). This evidentiary burden can be met by 

affidavit. See City of Denton v. Paper, 376 S.W.3d at 767 (reversing denial of 

summary judgment and dismissing case where summary judgment proof included 

“affidavits to demonstrate that [the city] had not received any complaints about the 

project or the street repair between the project’s completion on March 23 and 

Paper’s accident a week later on April 1”); see also Simpson v. Harris County, 951 
City of League City’s Reply Brief

No. 01-14-00720-CV

16

S.W.2d 251, 254 (Tex. App.—Houston [14th Dist.] 1997, no writ) (allowing 

county’s lack of knowledge concerning purportedly dangerous condition to be 

shown “through the affidavit of a county employee, an interested witness” who 

averred that “no requests for maintenance or repair, no reports of falls, near falls, 

or any injury” occurred due to condition alleged by plaintiff). Like the City of 

Denton, here, the City of League City provided affidavits showing it had received 

no complaints or reports relating to the drain. The affidavits also describe the 

process by which any reports or complaints are recorded.

PRAYER

The City respectfully requests this Court reverse the trial court’s order 

denying its plea to the jurisdiction and render judgment dismissing the claims 

against the City. The City requests costs and all other relief to which it may be 

entitled. 
City of League City’s Reply Brief

No. 01-14-00720-CV

17

Respectfully submitted,

OLSON & OLSON, L.L.P.

By: /s/ Eric C. Farrar 

Patricia L. Hayden

State Bar No. 09269200

phayden@olsonllp.com

Eric C. Farrar

State Bar No. 24036549

efarrar@olsonllp.com

Wortham Tower, Suite 600

2727 Allen Parkway

Houston, Texas 77019

Telephone: (713) 533-3800

Facsimile: (713) 533-3888

ATTORNEYS FOR APPELLANT,

CITY OF LEAGUE CITY

CERTIFICATE OF COMPLIANCE

I hereby certify that the foregoing Reply Brief of Appellant has a word count 

of 3,898.

/s/ Eric C. Farrar 

Eric C. Farrar
City of League City’s Reply Brief

No. 01-14-00720-CV

18

CERTIFICATE OF SERVICE

I hereby certify that on January 7, 2015, a true and correct copy of the 

foregoing Reply Brief of Appellant was sent by:

Mr. Joel Flowers, III

FLOWERS LAW FIRM

1776 Yorktown Street, Suite 600

Houston, Texas 77056

Attorney for Plaintiffs, 

Christobelle LeBlanc and 

Stanford LeBlanc













CMRRR # 

Facsimile No. (866) 620-4378

Hand Delivery

U.S.P.S.

E-mail: 

jflowers@flowerslawfirm.org

E-Service

/s/ Eric C. Farrar 

Eric C. Farrar
APPENDIX 1
WestLawNext 

§ 311.016. “May,” “Shall,” “Must,” etc., TX GOVT § 311.016

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1

Vernon’s Texas Statutes and Codes Annotated

Government Code (Refs & Annos)

Title 3. Legislative Branch (Refs & Annos)

Subtitle B. Legislation

Chapter 311. Code Construction Act (Refs & Annos)

Subchapter B. Construction of Words and Phrases (Refs & Annos)

V.T.C.A., Government Code § 311.016

§ 311.016. “May,” “Shall,” “Must,” etc.

Currentness

The following constructions apply unless the context in which the word or phrase appears necessarily requires a different

construction or unless a different construction is expressly provided by statute:

(1) “May” creates discretionary authority or grants permission or a power.

(2) “Shall” imposes a duty.

(3) “Must” creates or recognizes a condition precedent.

(4) “Is entitled to” creates or recognizes a right.

(5) “May not” imposes a prohibition and is synonymous with “shall not.”

(6) “Is not entitled to” negates a right.

(7) “Is not required to” negates a duty or condition precedent.

Credits

Added by Acts 1997, 75th Leg., ch. 220, § 1, eff. May 23, 1997.
WestLawNext 

§ 311.016. “May,” “Shall,” “Must,” etc., TX GOVT § 311.016

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 2

Notes of Decisions (5)

V. T. C. A., Government Code § 311.016, TX GOVT § 311.016

Current through the end of the 2013 Third Called Session of the 83rd Legislature

End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.
WestLawNext 

§ 311.026. Special or Local Provision Prevails Over General, TX GOVT § 311.026

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1

Vernon’s Texas Statutes and Codes Annotated

Government Code (Refs & Annos)

Title 3. Legislative Branch (Refs & Annos)

Subtitle B. Legislation

Chapter 311. Code Construction Act (Refs & Annos)

Subchapter C. Construction of Statutes (Refs & Annos)

V.T.C.A., Government Code § 311.026

§ 311.026. Special or Local Provision Prevails Over General

Currentness

(a) If a general provision conflicts with a special or local provision, the provisions shall be construed, if possible, so that

effect is given to both.

(b) If the conflict between the general provision and the special or local provision is irreconcilable, the special or local

provision prevails as an exception to the general provision, unless the general provision is the later enactment and the

manifest intent is that the general provision prevail.

Credits

Acts 1985, 69th Leg., ch. 479, § 1, eff. Sept. 1, 1985.

Notes of Decisions (57)

V. T. C. A., Government Code § 311.026, TX GOVT § 311.026

Current through the end of the 2013 Third Called Session of the 83rd Legislature

End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.
APPENDIX 2
WestLawNext 

§ 101.0215. Liability of a Municipality, TX CIV PRAC & REM § 101.0215

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1

Vernon’s Texas Statutes and Codes Annotated

Civil Practice and Remedies Code (Refs & Annos)

Title 5. Governmental Liability

Chapter 101. Tort Claims (Refs & Annos)

Subchapter B. Tort Liability of Governmental Units (Refs & Annos)

V.T.C.A., Civil Practice & Remedies Code § 101.0215

§ 101.0215. Liability of a Municipality

Effective: September 1, 2013

Currentness

(a) A municipality is liable under this chapter for damages arising from its governmental functions, which are those functions

that are enjoined on a municipality by law and are given it by the state as part of the state’s sovereignty, to be exercised by

the municipality in the interest of the general public, including but not limited to:

(1) police and fire protection and control;

(2) health and sanitation services;

(3) street construction and design;

(4) bridge construction and maintenance and street maintenance;

(5) cemeteries and cemetery care;

(6) garbage and solid waste removal, collection, and disposal;

(7) establishment and maintenance of jails;

(8) hospitals;
WestLawNext 

§ 101.0215. Liability of a Municipality, TX CIV PRAC & REM § 101.0215

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 2

(9) sanitary and storm sewers;

(10) airports, including when used for space flight activities as defined by Section 100A.001;

(11) waterworks;

(12) repair garages;

(13) parks and zoos;

(14) museums;

(15) libraries and library maintenance;

(16) civic, convention centers, or coliseums;

(17) community, neighborhood, or senior citizen centers;

(18) operation of emergency ambulance service;

(19) dams and reservoirs;

(20) warning signals;

(21) regulation of traffic;

(22) transportation systems;
WestLawNext 

§ 101.0215. Liability of a Municipality, TX CIV PRAC & REM § 101.0215

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 3

(23) recreational facilities, including but not limited to swimming pools, beaches, and marinas;

(24) vehicle and motor driven equipment maintenance;

(25) parking facilities;

(26) tax collection;

(27) firework displays;

(28) building codes and inspection;

(29) zoning, planning, and plat approval;

(30) engineering functions;

(31) maintenance of traffic signals, signs, and hazards;

(32) water and sewer service;

(33) animal control;

(34) community development or urban renewal activities undertaken by municipalities and authorized under Chapters 373

and 374, Local Government Code;

(35) latchkey programs conducted exclusively on a school campus under an interlocal agreement with the school district in

which the school campus is located; and

(36) enforcement of land use restrictions under Subchapter E, Chapter 212, Local Government Code.1
WestLawNext 

§ 101.0215. Liability of a Municipality, TX CIV PRAC & REM § 101.0215

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 4

(b) This chapter does not apply to the liability of a municipality for damages arising from its proprietary functions, which are

those functions that a municipality may, in its discretion, perform in the interest of the inhabitants of the municipality,

including but not limited to:

(1) the operation and maintenance of a public utility;

(2) amusements owned and operated by the municipality; and

(3) any activity that is abnormally dangerous or ultrahazardous.

(c) The proprietary functions of a municipality do not include those governmental activities listed under Subsection (a).

Credits

Added by Acts 1987, 70th Leg., 1st C.S., ch. 2, § 3.02, eff. Sept. 2, 1987. Amended by Acts 1997, 75th Leg., ch. 152, § 1,

eff. Sept. 1, 1997; Acts 1999, 76th Leg., ch. 1170, § 2, eff. June 18, 1999; Acts 2001, 77th Leg., ch. 1399, § 1, eff. June 16,

2001; Acts 2013, 83rd Leg., ch. 50 (H.B. 278), § 1, eff. Sept. 1, 2013.

Notes of Decisions (229)

Footnotes

1

V.T.C.A., Local Government Code § 212.131 et seq.

V. T. C. A., Civil Practice & Remedies Code § 101.0215, TX CIV PRAC & REM § 101.0215

Current through the end of the 2013 Third Called Session of the 83rd Legislature

End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.