### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-15-00292- CV

City of Austin , Appellan t

v. Jennif er F ram e, Indivi dual ly, and as P ersonal Repre sentative of the Estate of John Wi lliam G riff

ith; Gr eg G riff

ith; Cheryl Burris; and Diana Pulido, Ap pellees

F ROM TH E DISTRI CT COURT O F TRAVIS CO UNTY, 53RD J UDICIAL DI STRICT NO. D-1 -GN-1 2-0 0355 7, H ONO RAB LE AMY CLARK MEACH UM, J UDGE P RESIDING

M E M O R A N D U M O P I N I O N
Appellee s J ennife r Frame, G reg Griff ith, Chery l Burr is, and Diana Pulido sued t he City of Austin under the Texas Tort Claims Act and the rec rea tional-use statute for damag es rela ted
to an acci d ent alleg edly cause d by the City ’s failure to addre ss a safe ty hazard. See generally
Tex. Civ. Prac. & Rem. Code §§ 1 0 1.001–.109 (Texas Tort Claims Act); id. §§ 75.002, .003(g ) (re cre ational-use statute). The City fi l ed a p l ea to the jurisdiction, arg uing that its g overnme ntal immun ity was preserve d under the Act by the di scre tionary -powe rs ex ception. See id

. § 101.056. The trial court denied the City ’s plea to the jurisdiction, and the City filed this interlocutory appea l.
For the following rea sons, we will reve rse the district court’s order deny ing the City ’s plea to t he jurisdiction and rende r judg ment dismiss ing the case .BACK GR OUND On May 7, 2012, J oseph L ouis Rosales drove his ea s t bound vehicle off of
West Cesar Chavez Street wher e North L amar Boule vard crosse s over West Cesar Chavez, jumping the curb and driving onto the hike-a nd-bike trail located next to the road. His vehicle and debris struck and seriously injured two pedestria ns, Colonel J ohn Wil li am Griffith and Diana Pulido. Colonel Griffith died as a result of injuries fr om the incident. The appellee s sued Rosales and the C i t y . Their claims ag ainst the City included

1
neg lige nce, g ross neg ligen ce, premises defe ct, specia l defe ct, and brea ch of duty owed under the

rec rea tional-use statute. The appel l ee s al l eged that the City (1) failed to safe ly construct and maintain the trail, (2) was awa re of prior instanc es of ve hicles trave ling da ng erously over the curb
onto the trail in the same or substantially same location, and (3) failed to corr ect or adequately war n of this da ng erous condition. The appellee s further alleg ed that the City had policies requiring it to take corr ective action afte r a safe ty hazard is identified. Acc ording ly , the ap p el l ees alleg ed, the Parks and Recre ation Depa rtment’s failure to c onstruct a g uardr ail or bar

rier w as a failure to c arr

y out a ministerial act r equire d by the City ’s policy

of addr essing known hazards. The City filed a ple a to the jurisdiction, a sserting that g overnme ntal immunit y bars the appellee s’ claims ag ainst it beca use the Act does not waive immunit y for discretionar y decisions about roadw ay desig n and the installation of safe ty fea tures. The C ity further asser ted that this

J ennife r Fr ame, Gre g Griff ith, and Chery l Bur

ris are Colonel Griff

ith’s children. Appellee 1 Pulido i s unrelate d but was injured dur ing the incident. 2jurisdictional defe ct in the appellee s’ petition could not be cure d by amendment becau s e t h eir 2
fac tual complaints all conce rn discretionar y decisions. I n their response to the C i ty ’s plea to the jurisdiction, the appellee s arg ued that the City does not have immunit y beca use its failure to addre ss

an identified safe ty hazard on the hike-a nd-bike trail was a failure to implement an exis ting policy , not an initial policy

or desig n decision for which immunit y is pr eser ved. The district cour

t denied the City ’s plea to the jurisdiction, and the City perf ecte d this acc eler ated appea l. See Tex. Civ. Prac. & Re m. Code § 51.014(a) (8); Te x . R. App. P. 28.1(a).

STANDARD OF REVIEW A plea to the jurisdiction seeks dismiss al of a case fo r l ac k o f subject-matter jurisdiction. Harris Cty. v. Syke s , 136 S.W .3d 635, 638 (Tex. 2004). Be cause g overnme ntal immunit y from suit defe ats a trial court’s subject-matter jurisdiction, it is proper ly asser ted in a plea
to the jurisdiction. T

ex a s De p ’t of Parks & W

ildlif e v. Miranda , 133 S.W .3d 217, 225–26 (Tex. 2004); see also Syke

s , 1 36 S.W .3d at 638 (explaining that g overnme ntal immunit y opera tes like

sovere ign immunit y to af fo rd s i m i lar protec tion to subdivisions of the State, including cities). Subject-matter jurisdiction is a question of law; there fore , we revie w a trial court’s ruling on a plea to the jurisdiction de novo. Miranda , 133 S.W .3d at 226.

A plea to the jurisdiction often may be deter mined solely fr o m t h e pleading s and sometimes must be. Bland Indep. Sch. Dist. v. Blue , 34 S.W .3d 547, 554–55 (Tex. 2000). When

The City filed its plea to the jurisdiction afte r the appellee s added the City as a defe ndant 2 in their first amende d orig inal petition. Be cause the first amende d orig inal petition is the appellee s’ live pleading , we r efe r to it as the petition in this memorandum opinion. 3a plea to the jurisdiction challeng es the pleading s, we construe the pleading s liberally in favor of the

plaintiff to deter

mine whether the plaintiff has met its initial burden of alleg ing fa ct s that aff irmatively demonstrate the trial co u rt ’s j u ri sdiction to hear the cause . Id. “Mer e unsupported leg al conclusions do not suffice .” Bacon v. Texas Historical Comm’n , 411 S.W .3d 161, 170 (Tex. App.—Austin 2013, no pet.). I f the pleading s aff irmatively negate the exis tence of jurisdiction, then

a plea t o t h e j u ri sdiction may be g rante d without allowing the plaintiff an opportunity to amend. Miranda , 133 S.W .3d at 227.

When the plea challeng es the ex i s t en ce of jurisdictional fac ts, the court should consider rele vant evidenc e submitt ed by the parties when nece ssary to re s olve the jurisdictional issues raised. See id. at 2 2 6 ; B l a n d Indep. Sch. Dist. , 34 S.W .3d at 554–55. Such

case s fall i nto two cate g ories: those in which the jurisdictional issue or facts do not implicate t he merits of the plaintiff’s case and those in which they do. See Un i ve r s i t y o f Tex. v. Poindexte r , 306 S.W .3d 798, 806 (Tex. App.—Austin 2009, no pet.). I n this case , the jurisdictional issue does
not implicate the merits of the appellee s’ case . The City asser ted in its plea that the appellee s’ fac tual alleg ations only conce rn the discretio n ary decisions of roadw ay desig n and installation of safe ty fea tures, and the appellee s responde d with evidenc e to support their contentions that the City had a policy of addre ssing known safe ty hazards and that it had failed to implement that policy

. The issues of whether the Cit y had such a policy and whether that policy takes the appellee s’ fac tual

4alleg ations out of the discretionar y -powe rs exception has no bear ing on the merits of the appellee s’ claim that the City ’s g ross neg lige nce ma kes it liable for the acc ident. 3

When the jurisdictional f

acts do not implicate the merits and the fac ts a re disputed, the trial court—not the jury —must make th e n ecessary fac t finding s to resolve the jurisdictional issue, and the tria l court’s expli cit or implicit fact finding may be cha lleng ed on appe al for f actua l and lega l sufficie ncy . See Miranda , 133 S.W .3d at 226 (“‘ Whether a district court has subject 4

matter jurisdiction is a question for the court, not a jury , to decide , even if the deter mination require s making fac tual finding s, unl es s t h e j u risdictional issue is inext rica bly bound to the merits of the

case .’” (quoting Cameron v. Children’s Hosp. Med. Ctr. , 131 F.3d 1167, 1170 (6th Cir. 1997)))

. I f, howeve r, the fa cts rele vant to jurisdiction are undisputed, the court should make the jurisdictional deter mination a s a matter of law based solely on those undisputed fac ts. Id. at 228. “Our ultimate inquiry is whether the particula r fac ts prese nted, as d et er m ined by the fore g oing revie w of the pleading s and any evidenc e, aff irmatively demonstrate a claim within the trial court’s subject matter jurisdiction.” Bacon , 411 S.W .3d at 171.

Gross neg lige nce involves an objective component, which is that the premises owner ’s act 3 or omission must involve “an extreme deg ree of risk, considering the probability and mag nitude of the potential harm to others,” as viewed from the premises owner ’s standpoint, and a subjective component, which is the actor ’s actua l a war eness of and conscious indiffer ence to a n extreme risk of har m. Texas De

p’t of Parks & W

ildlif e v. Miranda , 133 S.W .3d 217, 225 (Tex. 2004) (quoting Louisi ana-Pacific Corp. v. Andrade , 19 S.W .3d 245, 246 (Tex. 1999)).

I n contra st, if the challeng ed jurisdictional fac t i m p l i ca t es the merits of the plaintiff’s 4 claims, the party asser

ting the plea to the jurisdiction must overc ome a burden simil ar to a movant’s burden for a traditional summary -judg ment motion and conclusively neg ate the fac t it is challeng ing. Id. at 228. 5Resolution of the jurisdictional i s s u e in this case require s us to construe Section

101.056 of the Texas Tort Claims Act. We revie w issues of statutory construction de novo. Texas Lottery Comm’n v. First State Bank of De Quee n , 325 S.W .3d 628, 635 (Tex. 2010). Our primar y objective when construing st atutes is to give eff ect to the L eg islature’s intent, which we seek first and fore most in the text of the statute. First Am. Titl e Ins. Co. v. Combs , 258 S.W .3d 627, 631–32 (Tex. 2008). The plain meaning of the text is the best expression of leg isla t i v e i n t en t , unless a differ ent meaning is appar ent from the context o r appli cation of the plain lang uag e would lead to absurd results. Molinet v. K imbrell , 356 S.W .3d 407, 411 (Tex. 2011). “Where text is clea r, t ext is deter minative of [l eg islative] intent.” Entergy Gulf States, Inc. v. Summers , 282 S.W .3d 433, 437 (Tex. 2009).

ANALYSIS Statutory fram ework

A municipality derive s g overnme ntal immunit y from the State’s sovere ign immunit y when the municipality is perf orm i n g go v ernmental functions. See City of Galveston v. State , 217 S.W .3d 466, 469 (Tex. 2007). The Texas T o rt C l ai m s Ac t includes, among other things, a limit ed waiver of g overnme ntal immunit y from suits alleg ing persona l injury or death cause d by the condition or use of proper ty or by premises defe cts. See Tex. Civ. P ra c. & Rem. Code §§ 101.021(2), .022. I t also p ro vides that in premises-de fec t case s, a g overnme ntal unit owes the claimant only the duty that a private person owes to a licensee on private proper ty

. Id. § 101.022(a) , (c)

. When injury or death results on city -owne d rec re ational land, howeve r, the
Texas rec rea

tional-use statute further limit s the city ’s duty to that owed by a l an downer to a
6trespasse r. Id. § 75.002; see also id. §§ 75.003(g ) (“To the extent that this chapte r limit s the liability

of a g overnme ntal unit unde r circ umstances in w hich the g overnme ntal unit would be liable under [t he Texas Tort Claims Act], this chapte r controls.”) , 101.058 (same)

. The only duty a premises

owner owes a trespasse r is the duty not to injure him wilfully , wantonly , or throug h g ross neg lige nce. Texas Utils. Elec. Co. v. Timmons , 947 S.W .2d 191, 193 (Tex. 1997). Thus, a municipality waives immunit y under the Texas Tort Claims Act and the rec rea tiona l -u s e s tatute only if it is g rossly
neg lige nt or if it wilfully

or wa ntonly injures the plaintiff. Miranda , 133 S.W .3d at 225. 5
Howeve r, the L eg islature has specific ally prese rved immunit y ag ainst claims arising from discretionar

y acts and omissio n s “to avoid judicial revie w or interfe renc e with those policy decisions committed to the other branc hes of g overnme nt.” Stephen F. Austin State Univ. v. Flynn , 228 S.W .3d 653, 657 (Tex. 2007). The Act provides that its waiver of immunit y does not apply to claims based on:
(1) the failure of

a g overnme ntal unit to perform a n act that the uni t is not require d by law to per form; or (2) a g overnme ntal unit’s decision not to perf orm an act or on its failure to make a decision o n t h e perf

ormanc e or nonperf

ormanc e of an act if the law leave s the perf ormanc e or nonperf

ormanc e of the act to the discretion of the g overnme ntal unit.

Wil lful and wa

nton conduct is sy

nony mous with “g ross neg lige nce,” and means that the 5 act or omission complained of was the result of conscious indiffer ence to the welfa re of the person aff ecte d by it. See Burk Royalty Co. v. W alls , 616 S

. W

. 2 d 9 1 1 , 916–20 (Tex. 1981); see also Miranda , 133 S.W .3d at 230–31, 233 (applying g ross-neg lige nce standard to deter mine question of waiver of sover eig n immunit y

under r ecr eational- use statute).

7Tex. Civ. Prac. & Rem. Code § 101.056 (discre tionary -powe rs exception). Deter mining whether a
g overnme ntal entity ’s act or failure to act is discretionar y is a question of law, not a question of fac t. See, e .g. , State v. San Migue l , 2 S.W .3d 249, 251 (Tex. 1999) (per curia m); W enzel v. City of New Braunfels , 852 S.W .2d 97, 99 (Tex. App.—Austin 1993, no writ).

Discre tionary-powers exce ption

The sole issue on appea l is whether the appellee s’ alleg ations conce rn discretionar y roadw ay d es i gn an d i n stallation of safe ty fea tures, as the City contends, or a neg lige nt failure to implement a previously formulated policy , as the appellee s contend. See Flynn , 228 S.W .3d at 657 (“[A] distinction is draw n betwee n the neg lige nt formulation of policy , for which so v er ei g n immunit y is prese rved, a

n d th e n e g li g ent implementation of policy , for which immunit y is waived.” ); State v. Rodriguez , 985 S.W .2d 83, 85 (Tex. 1999) (“D esig n of any public work, such as a roadw ay , is a discretionar

y function involving many policy decisions, and the g overnme ntal entity responsible
may not be sued for such dec i s i o n s .”), abrogated on other grounds by Denton Cty. v. Bey non , 283 S.W .3d 329, 331 n.11 (Tex. 2009). The City asser ts that the appelle es ’ fa ct u al alleg ations demonstrate that the alleg ed neg lige nce conce rns roadw ay desig n and the i n s t al l ati on of safe ty fea tures. The appellee s’ alleg ations include the following :

• “[V]ehicles trave ling at a high rate of speed on West Cesar Chavez Boule vard enter a sharp turn

. . . and in the very same location jogg ers, bikers, and other pedestria ns on City park land come within f eet of those vehicles as the path of the trail conver g es with the road

. . . . That is why the City , throug h the assi s t an t direc tor of its Parks and Recre ation Depa rtment, decide d a [sol id concr ete] barr ier should be installed on the south side of the road a s well.”

8• L ess than two months befor e the acc ident, a Parks and Recre ation employ ee “noted that ‘ conce rns kept coming up’ from citizens about t he abse nce of a barr ier on the south side of the road near the L am ar Boule vard overpa ss, particula rly afte r a ba rrier had bee n installed on the north side of the r oad.”

• The loca tion of the ac cident “was a dang er and peril that the City of Austin knew exis ted, never war

ned of and should have corr ect e d and aver ted throug h simple construction and maintenanc e. I nstead, the City failed t o safe ly construct and maintain the Trail for the worst rea son possible – to save a littl e money . . . . I ncre dibly , the estimated $35,000 c ost was cited a s one re ason [a barrie r] was not constructe d.”

The appellee s respond that their alleg ation that the City failed to implement an exis ting policy to eliminate or c ontrol identified hazards state s a cla im that is not barr ed by immunit y . I n construing Section 101.056’s discretionar y -powe rs exception to the Texas Tort Claims Ac t ’s waiver of immunit y , the Supreme Court of Texas has deter mined that “[a]n act is discretionar

y if it require s exercising judgme nt and the law does not mandate perf orming the act with such prec ision that nothing is left to disc retion or judgme nt.” Rodriguez , 985 S.W .2d at 85 (citing City of Lancaster v. Chambers , 883 S.W .2d 650, 654 (Tex. 1994)). This co n s truction comports with the Uni t ed S t ates Supreme Court’s construction of the Fe dera l Tort Claims Act’s discretionar

y -func tion exceptio n , from which the Texas Tort Claims Act’s discretionar y -powe rs exception is derive d. See United States v. Gaubert , 499 U.S. 315, 322 (1991) (F eder al Tort Claims
Act’s discretionar

y -func tion exception applies only to acts that “‘involv[e] an element of judgme nt

or choice ,’” and “[t] he require ment of judgme n t o r ch o ice is not satisfied if a ‘fe dera l statute,
reg ulation, or policy specific ally presc ribes a course of action for an employ ee to f

ollow,’ bec ause ‘the emp l o y ee has no rig htful option but to adher e to the di rec tive.’” (quoting Berkov itz v. United States , 486 U.S. 531, 536 (1998)) ); see als o F l yn n , 228 S.W .3d at 661–62 (He cht, J ., concur ring )

9(“The discretionar y function ex ception, li ke other exceptions in the [ Texas Tort Claims] Act, wa s taken from the Fe dera l To rt C l aims Act.”)

. Although not all conduct involving an element of judgme nt is shielded by immunit y , tho s e ac tions and decisions g rounded in social, economic, or political policy are exactly the ty pe of actions and decisions that the discretionar y -powe rs exception is desig ned to protec t. See Gaubert , 4 9 9 U. S

. at 3 2 2–25; Flynn , 228 S.W .3d at 662 (He cht, J .,

concur ring ). The United States Supreme Court has said that the question of whether an action is discretionar

y turns not on the g overnme nt ag ent or his subjective intent when exercising discretion, “but on the nature of the ac t i o n s t ak en and on whether they are susceptible to policy analy sis.” Gaubert , 499 U.S. at 325.

I n deciding whether a university was immune from suit afte r its sprinkler sy stem
spray ed water into a public trail and knocked a bicy clist off of her bicy cle, the majority in Flynn

rec og nized two tests that Texas courts have applied for deter mining when conduct in

v o lv e s p r o te c te d d iscretion. Flynn , 228 S.W .3d at 657. One draw s the line betwee n policy -leve l decisions and
opera tional-level de cisions while the other draws the line betwee n the design of public works and their maintenanc e. Id

. Although the Flynn majority did not articula te its decision in terms of social, economic, or political considerations, its decision alig ns with the fede ral analy sis. The majority did
not consider the university ’s decision to install a sprinkler sy stem (a decision that would nece ssarily implicate ec onomic conce rns) to be the rele vant dec ision for the purposes of deter mining whe ther the exception applied; instead, the rele vant decisions wer e “oper ational- or maintenanc e- l ev el ” decisions about whe re a

nd when the spr inklers should spray water

. Id . at 658.

10Texas co u rt s have g ener ally found that actions and decisions implicating social,

economic , or political considerations are discretionar y while those that do not involve these

conce rns are opera tional- or maintenanc e-le vel. Compare, e.g. , City of Brownsville v. Alvarado , 897 S.W .2d 750, 754 (Tex. 1995) (af firming trial court’s exclusion of evidenc e perta ining to jail’s discretionar

y policy decisions, including evidenc e of alleg edly inadequa te suicide-pr evention and CPR training , lack of video came ras, and jailer’s prac tice of isolating inmat es ); Chambers , 883 S.W .2d at 654 (police office r’s decision to eng ag e in high- speed chase was discretionar y ), with McClure v. Ree d , 9 97 S.W .2d 753, 755–56 (Tex. App.—Ty ler 1999, no pet.) (dec ision to use flag man to direc t traff

ic at construction site was discretionary policy -making , but flag man di d not enjoy immunit y while direc ting traff ic beca use he was implementing policy ); Benne tt v. Tarrant Cty.
W ater Control & Improve ment Dist. No. One , 894 S.W .2d 441, 452 (Tex. App.—For t Worth 1995, writ denie d ) (d ecision to rele ase water from spillway was discretionar y policy formulation while “subordinate decision of de termining the volume of outflow c onstitut [ed] policy implementation”

at nondiscretionar

y , opera tional level). I n addition, this Court has previously noted that apply ing the fede ral analy sis of whether a decision implicates social, economic, or political policy streng thened

our conclusion that the desig n of a highw ay ’s cross-slope and an eng ineer ’s decision not to deviate from that desig n wer e “pre cis el y t h e ty pe of highw ay -desig n, policy -leve l decision[s] to which courts apply the discretionar y -func tion exception.” Texas De p’t of Transp. v. Hathorn , No. 03-11-00011- CV, 2012 WL 2989235, at *8 & n.8 (Tex. A pp.—Austin July 19, 2012, no pet.) (mem. op.).

11Even a ssuming that the C ity did have “a stated policy of eliminating or controlling identified hazards” and that the City had identified the are a wher e the acc ident happene d as a safe ty hazard, as the appellees alleg e, it does not nec essar ily follow that the City ’s failure t o addre ss this particula r hazard w as neg lige nt policy implementation for which immunit y is waived. The policy that the appellee s descr ibe does not mandate the construction of a g uardr ail or barr ier with sufficie nt
prec ision to make that action nondiscretionar y under Texas Supreme Court p recede nt. See Rodriguez , 985 S.W .2d at 85; Chambers , 883 S.W .2d at 654. Rather, it require s the City to balanc e social and economic concern s an d d evise a plan to addre ss eac h specific identified hazard. This demands a level of judgme nt bey ond what was require d of the university when it decide d to activate its sprinkler in Flynn , the flag man when he direc ted traff ic in McClure , and the water district when it det er m i n ed h ow much water to rele ase pursuant to pre- established para meters in Benne tt

. See Flynn , 228 S.W .3d at 657; McClure , 9 9 7 S

. W

. 2 d at 7 55–56; Benne tt , 894 S.W .2d at 441. The
app el lees’ contention that the City should have addre ssed the hazard by building a g uardr ail or barr ier is ultimately a complaint about how the City ch o s e t o al locate its resour ces. This economica lly motivated decision is exactly the sort of policy formulation and balanc ing of interests that the discretionar

y -powe rs exception is meant to protec t. See Gaubert , 499 U.S. at 323–25; Flynn , 228 S.W .3d at 662 (He cht, J ., concur ring ).
T h e appellees’ underly ing fac tual alleg ations do not asser t that the hazard at is s u e

arose from any

thing other than the desig n of West Cesar Chavez Street and the hike-a nd-bike trail. Specifica lly , they complain that there is a sharp turn on the road within fee t of the hike-a nd-bike trail but no g uardr ail or bar

rier to pr otect tra il patrons from vehicles that might veer off of the road and

12onto the trail. Howeve r, Texas courts have consistently held that the desig n of public wo rks and

installation of safe ty fea tures is discretionar y and, conseque ntly , immune from suit under Section
101.056. E.g. , Texas Dep’ t of Transp

. v. R a mi r ez , 74 S.W .3d 864, 867 (Tex. 2002) (per curia m) (“[T]he median’s slope and lack of safe ty fea tures, s u c h as barr iers or g uardr ails, ref lect discretionar

y decisions for which [t he Texas Depa rtment of Transpor

tation] reta i n s i mmunity under the Act’s discretionar

y -func tion exception.”); San Miguel , 2 S.W .3d at 250 (State was immune from suit for using barr els to war

n of missing g uardr ail beca use “[d] ecisions about highw ay desig n and a b o u t w h a t ty pe of safe ty fea tures to install are discretionar y policy decisions”) ; Rodriguez , 985 S.W .2d at 85;
W enzel , 8 5 2 S

. W .2d at 98 (dec ision not to install barr icade or war ning sign was discretionar y ); Hathorn , 2012 WL 2989235, at *9 (Texas Depa rtment of Transpor

tation immune from suit arising from highw ay ’s alleg edly dang erous cross-slope beca use Depa rtment had specific ally desig ned highw ay to have that c ross-slope). The appellee s contend that the City should have installed a g uardr ail to preve nt such undeniably trag ic events as those prese nted by this case . This is, in essenc e, a complaint about the City ’s alleg ed dec i s i o n not to modify the exis ting desig n of its public works. Be cause the discretionar

y -powe rs exception applies as much to a g overnme ntal unit’s failure to ch a n g e th e d e sign of a public work as it applies to the initial desig n and the chang es that the g overnme ntal unit actua lly does m ak e, t h e C i t y there fore has i mmunity

. See Cit y of El Paso v. Ayoub , 787 S.W .2d 553, 554 (Tex. App.—El Paso 1990, writ denied) (orig inal desig n of street and location of g uardr ai ls was discretionar

y , as was decision not to upg rade ); Stanford v. State Dep’ t of Highways & Pub. Transp. , 635 S.W .2d 581, 582 (Tex. App.—Dallas 1982, writ ref ’d n.r.e.) (fa ilure to add g uardr ails to exis ting

13overpa ss was discretionar y beca use “construc tion of g uardr ails on an exis ting overpa ss is simil ar to chang ing the desig n of the overpa ss”). The ap p el l ees arg ue that the City ’s failure to make modifications was not a discretionar y desig n decision beca

use the City had alre ady decide d to cre ate

a policy that ultimately require d modifications and had alleg edl y d ec i d ed to install a barr ier.
Howeve r, immunit y does not vanish wher e a g overnme ntal entity has decide d to chang e the desig n of a public work but has not y et implemented that chang e. See Burnett v. Texas Highway Dep’t , 694 S.W .2d 210, 212 (Tex. App.—Eastland 1985, writ ref ’d n.r.e.) (fa ilure to upg rade medi a n b a rrier

was d i s cr et i onary when highw ay depar tment had alre ady made plans to upg rade but had not y et i m p lemented those plans). The liability theories alleg ed by the appellee s implicate discretionar y decisions for w hich the City reta ins sovereig n immunit y .

CONCLUSION The appellee s’ amende d pleading s aff irmatively neg ate the exis tence of jurisdiction beca use their claims are based on the City ’s discretionar y actions for which the City is immune from suit under Section 101.056 of the Texas Tort Claims Act. We there fore reve rse the district court’s order deny ing the plea to the jurisdiction and rende r judgme nt dismissing this ca se. See M iranda , 133 S.W

. 3 d at 2 2 7 (cour

t may g rant plea to jurisdiction without aff ording plaintiff opportuni ty to amend if ple ading s aff

irmatively

neg ate jurisdiction).

14__________________________________________ Cindy Olson Bour land, J ustice
Be fore J ustices Pury ear , Goodwin, and B ourland
Reverse d and Dismissed for Want of Jurisdiction Filed: May

27, 2016

15