COURT OF APPEALS 

SECOND DISTRICT OF TEXAS 

FORT WORTH 

NO. 02-16-00043-CV 

TARRANT REGIONAL WATER 

DISTRICT 

 APPELLANT

V. 

RICHARD JOHNSON AND 

SHARKARA JOHNSON, 

INDIVIDUALLY AND AS 

PERSONAL REPRESENTATIVES 

OF THE ESTATE OF BRANDY 

JOHNSON 

 APPELLEES

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FROM THE 48TH DISTRICT COURT OF TARRANT COUNTY 

TRIAL COURT NO. 048-274121-14 

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OPINION 

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This is an interlocutory appeal from the denial of a plea to the jurisdiction 

based on alleged governmental immunity. See Tex. Civ. Prac. & Rem. Code 
2 

Ann. § 51.014(a)(8) (West Supp. 2016). In a single issue, appellant Tarrant 

Regional Water District (TRWD) contends that the trial court erred by denying its 

plea to the jurisdiction because the Texas Tort Claims Act (TTCA) does not 

waive its immunity from suit on the claims brought by appellees Richard and 

Sharkara Johnson. We reverse and render in part and affirm in part. 

Background 

 On January 16, 2013, the Johnsons’ nineteen-year-old daughter Brandy 

Johnson tragically drowned in the Trinity River after apparently attempting to 

walk across Trinity Park Dam No. 2 (Dam No. 2) in Fort Worth on her way to a 

job interview. That dam has a kayak chute in the middle through which the river 

rapidly flows. After Brandy’s death, the Johnsons sued TRWD, which “owns, 

operates[,] and maintains the systems of levees, sump areas, flood gate 

structures, channel improvements, river bottoms, low water weirs, dams, 

walkways[,] and kayak chutes on the Clear Fork” of the Trinity River in the area 

where Brandy drowned. In their third amended petition, the Johnsons brought 

claims under the TTCA alleging that the following conditions constituted either a 

premises defect, a special defect, or both: “Trinity Park Dam No. 2, the kayak 

chute on Trinity Park Dam No. 2, the levees, rock stairs and handicapped 

accessible walkway leading to Trinity Park Dam No. 2, the Clear Fork of the 

Trinity River, the river bottom of the Clear Fork of the Trinity River[,] and the large 

scour hole located at the base of Trinity Park Dam No. 2” (collectively the 

Premises). They also alleged that (1) TRWD is liable under the TTCA for 
3 

negligence because an employee had used or misused tangible personal 

property or furnished Brandy with inadequate or defective tangible personal 

property and (2) TRWD was either grossly negligent or acted with malicious 

intent or bad faith. Finally, the Johnsons brought wrongful death and survival 

causes of action. 

 TRWD filed a plea to the jurisdiction alleging that its immunity had not 

been waived under the TTCA for any of the Johnsons’ claims because (1) the 

Johnsons did not identify any item of personal property allegedly used or 

misused by an employee, (2) as a matter of law, the Premises are not a special 

defect, and (3) even if the Johnsons alleged a premises defect for which its 

immunity is waived, the TTCA reinstates that immunity because its decisions 

regarding the design of the Premises and any related safety features, such as 

warning signs, are discretionary. Alternatively, TRWD argued that if (3) above 

does not apply, the Johnsons still cannot maintain a premises defect claim 

because they (a) failed to identify a premises defect that created an 

unreasonable risk of harm, (b) even if they alleged an actionable defect, there is 

no evidence it caused Brandy’s death, (c) the kayak chute and water running 

through it are an open and obvious danger, and (d) if TRWD had a duty to warn 

Brandy, as a matter of law it did so adequately. The trial court denied the plea to 

the jurisdiction. 
4 

Standard of Review 

 We review the trial court’s ruling on a plea to the jurisdiction under a 

de novo standard of review. Tex. Dep’t of Parks & Wildlife v. Miranda, 133 

S.W.3d 217, 226 (Tex. 2004); City of Wichita Falls v. Jenkins, 307 S.W.3d 854, 

857 (Tex. App.—Fort Worth 2010, pet. denied). The plaintiff has the burden of 

alleging facts that affirmatively establish the trial court’s subject matter 

jurisdiction. Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 446 

(Tex. 1993); Eden Cooper, LP v. City of Arlington, No. 02-11-00439-CV, 2012 

WL 2428481, at *3 (Tex. App.—Fort Worth June 28, 2012, no pet.) (mem. op.). 

We construe the pleadings liberally in favor of the plaintiff and look to the 

pleader’s intent. Miranda, 133 S.W.3d at 226. Whether undisputed evidence of 

jurisdictional facts establishes a trial court’s jurisdiction is a question of law. Id.; 

Jenkins, 307 S.W.3d at 857. 

 If a plea to the jurisdiction challenges the existence of jurisdictional facts, 

we consider relevant evidence submitted by the parties when necessary to 

resolve the jurisdictional issues raised, as the trial court is required to do. 

Miranda, 133 S.W.3d at 227; Jenkins, 307 S.W.3d at 857. If the evidence 

creates a fact question regarding the jurisdictional issue, then the trial court 

cannot grant the plea to the jurisdiction, and the fact issue will be resolved by the 

factfinder. Miranda, 133 S.W.3d at 227–28; Jenkins, 307 S.W.3d at 857. But 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 
5 

of law. Miranda, 133 S.W.3d at 228; Jenkins, 307 S.W.3d at 857. This standard 

generally mirrors that of a traditional summary judgment. Miranda, 133 S.W.3d 

at 228; Jenkins, 307 S.W.3d at 857; see Tex. R. Civ. P. 166a(c). 

Waiver of Immunity Under TTCA 

Generally, a governmental unit enjoys immunity from lawsuits for 

damages. See City of Dallas v. Reed, 258 S.W.3d 620, 622 (Tex. 2008); City of 

Haltom City v. Aurell, 380 S.W.3d 839, 844 (Tex. App.––Fort Worth 2012, no 

pet.). An assertion of governmental immunity to suit is a challenge of the trial 

court’s jurisdiction. Harris Cty. Hosp. Dist. v. Tomball Reg’l Hosp., 283 S.W.3d 

838, 842 (Tex. 2009); State v. Holland, 221 S.W.3d 639, 642 (Tex. 2007). 

The legislature has provided a narrow waiver of immunity in the TTCA. 

Reed, 258 S.W.3d at 622; Haltom City, 380 S.W.3d at 844. A cause of action 

must initially meet the requirements set forth in section 101.021 of the TTCA to 

come within its waiver of governmental immunity. Tex. Civ. Prac. & Rem. Code 

Ann. § 101.021 (West 2011); Wise Reg’l Health Sys. v. Brittain, 268 S.W.3d 799, 

805 (Tex. App.––Fort Worth 2008, no pet.). Under section 101.021, 

governmental units are liable for “personal injury and death so caused by a 

condition or use of tangible personal or real property if the governmental unit 

would, were it a private person, be liable to the claimant according to Texas law.” 

Tex. Civ. Prac. & Rem. Code Ann. § 101.021(2). “Liability for premises defects is 

implied under section 101.021(2) because a premises defect arises from a 
6 

condition existing on real property.” Haltom City, 380 S.W.3d at 845 (quoting 

Perez v. City of Dallas, 180 S.W.3d 906, 910 (Tex. App.––Dallas 2005, no pet.)). 

But even if a plaintiff has pleaded claims for which immunity is waived 

under section 101.021, the TTCA nevertheless contains specific exemptions from 

that waiver. Univ. of Tex. at San Antonio v. Trevino, 153 S.W.3d 58, 61 (Tex. 

App.––San Antonio 2002, no pet.). Section 101.056 of the TTCA exempts from 

section 101.021’s waiver of immunity a “governmental unit’s decision not to 

perform an act[,] or . . . its failure to make a decision on the performance or 

nonperformance of an act[,] if the law leaves the performance or nonperformance 

of the act to the discretion of the governmental unit.” Tex. Civ. Prac. & Rem. 

Code Ann. § 101.056(2) (West 2011); Brazoria Cty. v. Van Gelder, 304 S.W.3d 

447, 453 (Tex. App.––Houston [14th Dist.] 2009, pet. denied). Whether a 

governmental activity is discretionary for TTCA purposes is a question of law. 

State v. San Miguel, 2 S.W.3d 249, 251 (Tex. 1999). 

“An act is discretionary if it requires exercising judgment and [if] the law 

does not mandate performing the act with such precision that nothing is left to 

discretion or judgment.” State v. Rodriguez, 985 S.W.2d 83, 85 (Tex. 1999), 

overruled on other grounds by Denton Cty. v. Beynon, 283 S.W.3d 329, 331 n.11 

(Tex. 2009). The supreme court has articulated two tests for determining 

whether conduct by a governmental entity involves a discretionary function: the 

first test distinguishes between policy-level decisions, for which immunity exists, 

and operational-level decisions, for which there is no immunity; the second 
7 

distinguishes between the design of public works, for which there is immunity, 

and their maintenance, for which there is no immunity. Stephen F. Austin State 

Univ. v. Flynn, 228 S.W.3d 653, 657 (Tex. 2007). Operational or maintenance 

level decisions are those involved in carrying out a policy, consisting of 

ministerial acts that require obedience to orders; by contrast, policy decisions are 

those taken at the planning level that constitute the execution of or the actual 

making of those policy decisions. Tex. Dep’t of Transp. v. Hathorn, No. 03-11-

00011-CV, 2012 WL 2989235, at *6–7 (Tex. App.––Austin July 19, 2012, no pet.) 

(mem. op.). And because “the ‘[d]esign of any public work, such as a roadway, is 

a discretionary function involving many policy decisions, . . . the governmental 

entity responsible may not be sued for such decisions.’”1 Tex. Dep’t of Transp. v. 

Perches, 388 S.W.3d 652, 655 (Tex. 2012) (quoting Rodriguez, 985 S.W.2d at 

85); Brazoria Cty., 304 S.W.3d at 454. Additionally, a court should not secondguess a governmental unit’s decision about the type of marker or safety device 

that is the most appropriate. San Miguel, 2 S.W.3d at 251. 

Because TRWD’s first contention in the trial court and here is that even if 

its immunity from the Johnsons’ claims is initially waived under section 101.021, 

it would still be immune because of section 101.056’s applicability, we will first 

 1Although many of the discretionary design cases relate to roadway 

design, they are not limited to roadway design. See Univ. of Tex. v. Amezquita, 

No. 03-06-00606-CV, 2009 WL 1563533, at *2 (Tex. App.––Austin June 4, 2009, 

no pet.) (mem. op.). 
8 

review whether the Johnsons’ claims relate solely to discretionary functions for 

which TRWD’s immunity would not be waived under the TTCA. 

Specific Allegations in the Johnsons’ Third Amended Petition 

 The Johnsons alleged in their live pleading that the kayak chute cut into 

the middle of Dam No. 2, like the chutes in two of the other dams in the same 

area of the Trinity River, “allow[s] for water to flow through at rates of at least up 

to 2,700 cubic feet per second.” They also alleged that the chute is “made of an 

exposed aggregate pea gravel concrete mix, is approximately 10 feet across[,] 

and is smooth, slick and slippery, especially with water running through the 

chute.” They further alleged that the chute in Dam No. 2 “creates a Class II+ 

whitewater rapid.” 

 The petition also claimed that there is a “huge scour hole” at the base of 

Dam No. 2 that “creates a channel bottom that was up to nine feet deeper than 

expected or designed” and that in 2003, the scour hole “was partially but not 

completely filled with loose materials and construction materials and the 

materials were not sealed in place.” At some point, “[t]he loose materials were 

washed out of the scour hole, likely in 2007 during some flooding and ‘high flow 

velocity’ events [and were] . . . pushed far downstream and even created a small 

artificial island downstream from” Dam No. 2. According to the Johnsons, 

Brandy drowned when she fell from the kayak chute into the scour hole, which 

was not visible to Brandy and was “as large as it originally was when negligently 

repaired in 2002.” The petition states, “The depth of the river at the downstream 
9 

base of . . . Dam No. 2 is supposed to be three feet,” and alleges that if Brandy 

had fallen into the river at that depth, she would have been able to stand up and 

would not have drowned. The Johnsons also alleged that after Brandy’s death, 

TRWD had approved plans to “fix the scour hole, seal the material being placed 

in the scour hole[,] and return the river depth back to the original three foot 

depth.” 

 The Johnsons further detailed three previous drownings and two near 

drownings at the same site, all involving people falling off the dam. They also 

noted that allegations had been made in some of those cases that although the 

dam had signs on it, those signs did not warn of any dangers. The Johnsons 

alleged that no additional or better warning signs were added after these 

incidents. Additionally, the Johnsons alleged that a cyclist who successfully 

saved Dania Martinez’s son, but who could not rescue Martinez, told CBS 11 

news, “It looks completely harmless . . . but that little waterfall and then there’s a 

little sinkhole. You’re pulled down and then you’re being pushed this way and 

down. When I got to him, I had to reach down, he was starting to go under and 

had been bobbing up and down.” According to the cyclist, she had been 

swimming “almost her entire life,” but she found it difficult to keep her head above 

water. The Johnsons further alleged that in March 2012, TRWD considered 

placing new warning signs on Dam No. 2 in response to the three drownings and 

at least one of the near drownings. While two designs were considered––one of 

which showed an arrow through water and said “Beware Strong Currents” and 
10 

the other of which showed the top of a person’s head and a waving arm over 

water stating “STRONG CURRENT YOU COULD BE SWEPT AWAY FROM 

SHORE AND COULD DROWN IF IN DOUBT DON’T GO OUT”––the final 

approved design showed the top of a person in water, with a person standing in 

front stating “SAFETY FIRST PLEASE WATCH YOUR CHILDREN.” According 

to the Johnsons, 

This sign was created and designed by a public relations person. 

No safety studies occurred. No contact was made with the designer 

of the walkways to see if they could be made safer. No expert was 

consulted on making the artificially created condition safer. Nothing 

occurred except the placement of one poorly designed sign in which 

the word caution had been intentionally removed. 

 In general, the Johnsons alleged that the “artificially created condition 

created by” Dam No. 2, “the scour hole and the . . . slippery kayak chute,” and 

the walkways, river, and channel bottoms were dangerous conditions and that 

TRWD “did not have adequate safety and warnings signs” at the dam. According 

to the Johnsons, TRWD was actually aware of these dangerous conditions, 

including that the scour hole that was supposed to be three feet in depth was 

actually eleven to twelve feet in depth. Moreover, they allege TRWD was 

actually aware “of the numerous drownings or near drownings” at Dam No. 2 and 

that Dam No. 2 “had more drownings or near drownings than any of the other 

twenty-three to twenty-five dams that TRWD oversees.” Finally, they contend 

that TRWD was aware “that it was dangerous for the general public to walk 

across [Dam No. 2] when there was water flowing through the kayak chute.” 
11 

 The Johnsons contended that the defective condition of Dam No. 2 was 

caused by “altering the natural flow of the Clear Fork of the Trinity River by 

diverting the river through a series of artificial man made dams and kayak 

chutes,” creating “a smooth looking yet powerful and deceptively dangerous 

current through the kayak chute” and “re-creat[ing] a large scour hole”: “If the 

large scour hole[,] which was created by the artificial diversion of the natural flow 

of the water, had been properly repaired or maintained, Brandy . . . would have 

been able to stand up in the Clear Fork of the Trinity River.” Furthermore, the 

Johnsons claim that TRWD negligently implemented policy and negligently 

maintained the Premises by not “filling in or repairing the large scour hole,” filling 

it in improperly, or both, and by negligently constructing Dam No. 2 and the 

surrounding area. Finally, the Johnsons allege that TRWD was negligent in 

failing to manufacture the more explicit warnings signs proposed and considered 

by TRWD in 2012, before Brandy’s death, and in failing to “secure the area to 

prohibit access to the unsafe conditions.” 
12 

The Johnsons’ Complaints About the Parts of the Premises Other Than The 

Scour Hole and Resulting “Boil Effect” Relate Only to 

Discretionary Design Decisions2

Relevant Facts 

 The following evidence about the Premises was developed during the plea 

to the jurisdiction pleading process. The United States Army Corps of Engineers 

is jointly responsible with TRWD for regulating and maintaining flood control 

along the Trinity River in Fort Worth. In the 1960s, the Corps channelized this 

part of the river and strengthened existing levees to assist in flood control. Part 

of the channelization included the establishing of a grade for the river bottom to 

facilitate river flow. As a result of the river channelization project, several dams 

were constructed by TRWD. Dam No. 2, the dam at issue here, included a 

fishing pier on the west side; in the 1970s, TRWD designed and installed rock 

stairs leading down to the river on Dam No. 2. In the 1980s, TRWD installed a 

handicapped accessible sidewalk ramp from adjacent Trinity Park down to the 

dam. 

 According to TRWD’s Dam and Levee Safety Engineer, Louis Verreault, 

the original dams in this location were vertical face dams. Over time, those types 

 2TRWD contends in its reply brief that the Johnsons “narrowed” their 

claims on appeal by responding with arguments only about the scour hole, 

undertow and resulting boil effect, and the current through the kayak chute; 

however, because the applicable standard of review requires us to consider 

whether TRWD was entitled to a dismissal of the Johnsons’ pleaded claims, we 

will consider TRWD’s preserved appellate arguments as to the Johnsons’ entire 

petition in light of the appropriate standard of review. See Miranda, 133 S.W.3d 

at 226–27. 
13 

of dams will move sediment from the river channel bottom downstream in a 

“scouring” effect due to the force of the water flowing over the dam and then 

straight down toward the river bottom. 

 In 2002 and 2003, TRWD redesigned and reconstructed several dams, 

including Dam No. 2, for recreational purposes. The design for Dam No. 2 

included a kayak chute in the middle of it for use by recreational kayakers and 

inner tubers. Construction began in 2003 and consisted of the removal of the 

dams built in the 1960s and the rebuilding of new dams. According to Verreault, 

the new dam, Dam No. 2, was “designed to retain water and to control erosion 

and is not designed as a walkway.” 

 Verreault’s job during the dam redesign was to ensure its structural 

integrity. As part of the design process for the kayak chute, TRWD had to 

demonstrate to the Army Corps of Engineers that the chute would not impact the 

overall flow of the river so as to comport with the Corps’ plan for flood prevention. 

The kayak chute in the middle of Dam No. 2 is a ten foot opening through 

the center of the dam and consists of “running water running over a slippery 

surface.” The kayak chute was intentionally designed to be slippery so as to 

facilitate the movement of kayaks and small boats through it from one pool of the 

river to the next. The bottom is made of exposed pea gravel that was chosen to 

be “smooth and slick.” TRWD relied on the designer of the chute to make sure it 

would be safe for kayakers. However, Verreault admitted that TRWD did not 

take measures to ensure the safety of people walking across the kayak chute 
14 

because it was not intended as a walkway. Verreault did not believe the dam 

was unsafe, but he did agree that walking on it could be dangerous. 

 Verreault estimated that the flow of the river on the day of Brandy’s death 

was two to five hundred cubic feet per second. The velocity of the water running 

through the chute, however, would have been faster than the overall flow of the 

river because all of the water would be concentrated through that ten-foot 

opening. Verreault estimated that the water moving across the chute on the day 

of Brandy’s death was six inches deep, which, at the speed it was moving, could 

cause someone to fall. On that day, the water flowing through the chute did not 

reach across its entire ten foot width; according to Verreault’s testimony, “it 

appears that there was very low flow through the center chute, because it’s all 

contained within the center chute and doesn’t cover it from side to side, so my 

assumption is that it’s at a lower flow.” 

 When Dam No. 2 was installed, TRWD did not install warnings regarding 

the danger of the water speed or flow in the chute, but it did embed signs in the 

rock approaching the kayak chute on each side of the chute with a depiction of a 

figure walking with a line through it. At the time of Brandy’s death, another set of 

signs had been posted on either side of the kayak chute on Dam No. 2 that said, 

“SAFETY FIRST PLEASE WATCH YOUR CHILDREN,” along with a picture of a 

small figure in water with an arm above its head. According to Darrell Beason, 

Director of Operations for TRWD, at the time, there had been drownings of 

children or of people attempting to rescue children who had fallen in the river, so 
15 

TRWD thought the reason that there had been several such incidents was 

related more to unsupervised children than an issue with the adequacy of 

warnings against walking through the kayak chute. 

 After Brandy’s death, TRWD posted warnings regarding the strong current 

on social media and in the Fort Worth Star-Telegram. TRWD also placed new 

signs on Dam No. 2 after Brandy’s death; since that time until at least August 20, 

2015, the date of Beason’s deposition, there had not been any drownings at Dam 

No. 2. In August 2015, the TRWD Board approved widening the chute to twentyfive feet; TRWD also planned to place rubber baffles around the chute to 

discourage walking across the chute. 

 However, TRWD was aware as early as 2003 that people were walking “all 

over” Dam No. 2. The stairs down to the dam were installed to facilitate 

fishermen and people launching kayaks and inner tubes: the stairs are for the 

purpose of “bring[ing] people down [to the river] to recreate . . . [and] contact . . . 

the river.” Likewise, the fishing pier was already existing in 2002; as part of the 

redesign of Dam No. 2, TRWD connected the stairs and dam up to the pier.3

Each year, TRWD visually inspects the dams, including Dam No. 2, with a 

Corps engineer to see if they have been damaged or if any repairs are 

necessary. As part of TRWD’s annual visual inspection of the dams, it checks 

the warning signs to make sure they are not damaged or obscured by debris. 

 3Neither of these points of access or use required walking across the 

chute. 
16 

Analysis 

 All of the evidence supports the conclusion that the condition of the kayak 

chute about which the Johnsons complain––that its surface was smooth and 

slippery and that a dangerous, swift current ran through it––is an intentional 

result of the chute’s design and not a malfunction of the chute or TRWD’s failure 

to maintain it. The evidence shows that the chute was designed to be ten feet 

wide and have a slippery surface on the bottom over which running water would 

flow at a velocity sufficient to move kayaks and small boats across it. 

Additionally, the evidence shows that the rest of the Premises other than the 

scour hole and alleged related boil effect––the stairs, pier, and parts of Dam 

No. 2 other than the kayak chute––were constructed in accordance with the 

design of intentionally bringing people down to the river to fish or launch boats. 

 This evidence shows that the allegations regarding the condition of Dam 

No. 2, including the kayak chute and the remainder of the Premises other than 

the scour hole and boil effect are complaints about the design of Dam No. 2 

rather than the maintenance of Dam No. 2 contrary to the original design. See

Mogayzel v. Tex. Dep’t of Transp., 66 S.W.3d 459, 465–66 (Tex. App.––Fort 

Worth 2001, pet. denied) (“[A]lthough Appellants pled that Appellees had notice 

of I–20’s dangerous condition and failed to correct it within a reasonable time, 

they have not alleged that the dangerous condition came about through a 

negligently implemented policy or plan. Rather, Appellants complain of the 

condition of I–20 as it was originally designed.”). Accordingly, the Johnsons’ 
17 

claims about those conditions are barred under section 101.056 of the TTCA. 

See City of Austin v. Frame, No. 03-15-00292-CV, 2016 WL 3068379, at *5 (Tex. 

App.––Austin May 27, 2016, no pet.) (mem. op.) (holding that failure to construct 

guard rail or barrier separating road from trail to protect users of trail from road 

hazards required “the City to balance social and economic concerns and devise 

a plan to address each specific identified hazard” and that the complaint that the 

City should have addressed a specific hazard by erecting a guardrail or barrier “is 

ultimately a complaint about how the City chose to allocate its resources,” which 

is “exactly the sort of policy formulation and balancing of interests that the 

discretionary-powers exception is meant to protect”); Hathorn, 2012 WL 

2989235, at *8 (“Even taking the evidence in the light most favorable to Hathorn, 

the non-movant, it is clear that the negligence alleged by Hathorn arose not from 

faulty implementation of the plans, but from TxDOT’s policy decision about the 

roadway’s design.”). 

Likewise, the Johnsons’ complaint about the adequacy of the warning 

signs––their placement, content, or both4––is a complaint about the decision of 

whether or not to install safety features, which is barred by section 101.056. See

Tex. Dep’t of Transp. v. Ramirez, 74 S.W.3d 864, 867 (Tex. 2002); Frame, 2016 

WL 3068379, at *6 (holding that complaint about City’s failure to install protective 

 4This includes the Johnsons’ complaint that TRWD negligently 

implemented a policy to add new signs because it did not approve and 

implement an initial design for signs with a clearer warning. 
18 

barrier or guardrail was “in essence, a complaint about the City’s alleged decision 

not to modify the existing design of its public works” and complaint of failure to 

change a design to make it safer was nevertheless a complaint related to 

design). A complaint about the adequacy and efficacy of safety devices such as 

warning signs is a complaint about discretionary design, for which immunity is not 

waived. San Miguel, 2 S.W.3d at 251 (“A court should not second-guess a 

governmental unit’s decision about the type of marker or safety device that is the 

most appropriate.”); Tex. Dep’t of Transp. v. Olivares, 316 S.W.3d 89, 100–01 

(Tex. App.––Houston [14th Dist.] 2010, no pet.); cf. Tex. Dept. of Transp. v. 

Bederka, 36 S.W.3d 266, 271 (Tex. App.––Beaumont 2001, no pet.) (holding that 

the “Department enjoys immunity from suit regarding its decision to place a 

particular traffic control signal, even if the signal fails to make the premises safe

[and that the] selection of the device employed is not its condition” (emphasis 

added)), disapproved of on other grounds by City of Grapevine v. Sipes, 195 

S.W.3d 689, 695 n.5 (Tex. 2006). Accordingly, we conclude and hold that the 

Johnsons’ claims regarding the signs’ allegedly inadequate warnings as creating 

an unsafe condition are barred by section 101.056. 

 The Johnsons contend that a different result is compelled by virtue of the 

reasoning in Texas State University-San Marcos v. Bonnin, No. 03-07-00593-CV, 

2010 WL 4367013 (Tex. App.––Austin Nov. 5, 2010, no pet.) (mem. op.). In that 

case, a young man died after jumping from the balcony of the restaurant where 

he worked into the waterway at Spring Lake Dam on the university’s campus. Id.
19 

at *1. His parents sued the university, pleading that his death was the result of a 

turbulent undertow that pulled him into underwater caverns beneath the 

restaurant. Id. According to the Bonnins’ petition, the university had created an 

unreasonably dangerous condition as a result of making repairs to the waterway 

at the location where their son died and failing to block access to, or warn others 

about, the underwater caverns. Id. The Austin Court of Appeals held that 

section 101.056 barred the Bonnins’ claims regarding the creation of the 

condition and failure to warn, holding that those allegations were not based on 

the argument that the university had failed to maintain the waterway after the 

repairs were made but, rather, they attributed the Bonnins’ son’s death to “the 

initial design decisions regarding the repairs.” Id. at *2. 

 However, the court went on to address a separate claim in the Bonnins’ 

petition: that under the Recreational Use statute, the University had allowed a 

defective condition on the property––a dangerous undertow existing apart from, 

and not created by, the design of the underwater caverns––when it “knew . . . or 

should have known [that] the property would be used for recreational purposes.” 

Id. at *3; see Tex. Civ. Prac. & Rem. Code Ann. § 75.001–.007 (West 2011 & 

Supp. 2016) (commonly known as the Recreational Use statute). The 

Recreational Use statute neither creates liability nor waives sovereign immunity; 

instead, it further “limits the liability of a governmental unit under circumstances 

in which the governmental unit would be liable under” the TTCA. Suarez v. City 

of Texas City, 465 S.W.3d 623, 632 (Tex. 2015) (quoting in part and citing Tex. 
20 

Civ. Prac. & Rem. Code Ann. § 75.003(d)–(g)). In Bonnin, the court addressed 

the complaints as pleaded by the Bonnins; here, the Johnsons did not plead any 

claims under the Recreational Use statute, nor could they rely on it to pursue 

claims not otherwise allowed under the TTCA. See id.; cf. Univ. of Tex. at 

Arlington v. Williams, 459 S.W.3d 48, 51 (Tex. 2015) (considering whether 

Recreational Use statute, which applies to “activit[ies] associated with enjoying 

nature or the outdoors,” applied to the act of attending and observing a 

competitive sports game). Accordingly, the reasoning in Bonnin does not apply 

to except the Johnsons’ claims regarding the parts of the Premises, other than 

the scour hole and boil or undertow and related current,5 from section 101.056’s 

reinstatement of TRWD’s immunity. 

 Ultimately, the Johnsons argue that there is a difference between 

designing a dangerous condition on real property and allowing such a 

dangerously-designed condition to continue unabated. However, the case law 

does not stand for that proposition. Instead, the holdings are clear that if an 

alleged real property condition is a result of a discretionary design decision—in 

 5The Johnsons appear to use the phrase “deceptively dangerous current” 

interchangeably in their petition and brief, either to refer to the water running 

through the kayak chute or the current creating the boil or undertow effect as 

evidenced by the larger scour hole. Because there is no evidence that the water 

running through the kayak chute was not functioning as designed, we limit our 

discussion in the next section to the Johnsons’ allegations about a “deceptively 

dangerous current” to the extent that it can be construed as pertaining to the 

alleged boil effect at the base of and immediately downstream from Dam No. 2. 

See Miranda, 133 S.W.3d at 226 (instructing court to liberally construe 

pleadings). 
21 

other words, no law mandates a certain or different design—rather than the result 

of the failure to properly maintain the real property as designed––even if the 

result of the discretionary design decision is the creation of an allegedly 

dangerous condition––then the governmental entity’s immunity is reinstated, and 

therefore not waived, under section 101.056 of the TTCA. See, e.g., Haltom 

City, 380 S.W.3d at 845–46 (“To prevail on a premises defect claim under the 

TTCA, a plaintiff must prove that the condition of the premises created an 

unreasonable risk of harm.”); Mogayzel, 66 S.W.3d at 465–66. 

The Complaints Regarding the Deepening of the Scour Hole and Evidence 

Raising a Fact Issue Regarding the Existence of an Undertow or 

Boil Effect Do Not Relate to a Discretionary Design Decision 

 TRWD contends that all of the Johnsons’ claims, including those related to 

the scour hole and possible undertow and boil at the base of and immediately 

downstream of Dam No. 2, are barred by section 101.056. The Johnsons, 

however, respond that the discretionary acts exception does not apply to those 

aspects of the Premises because 

Here, TRWD knew of and allowed the large scour hole at the 

base of Trinity Park Dam No. 2, knew of and allowed the dangerous 

conditions created by the large scour hole, including an undertow 

and boil effect which made swimming difficult, and knew of and 

allowed the dangerous 10 to 12 foot depth of the scour hole. The 

scour hole made the depth of the Clear Fork 10 to 12 feet deep 

instead of three feet. TRWD knew of and allowed all of these 

dangerous conditions on the premises. 

As TRWD’s Dam Safety Engineer has testified, the scour hole 

was not part of any TRWD design and did not rely on any TRWD 

design. The scour hole, boil effect, undertow and river depth did not 

rely on any TRWD design. The scour hole, boil effect, undertow and 
22 

river depth were a defective and dangerous condition at the base of 

Trinity Park Dam No. 2 that TRWD knew of but TRWD allowed to 

exist. The scour hole, boil effect, undertow and river depth were all 

dangerous conditions that did not rely on design decisions and are 

not subject to the discretionary acts exception. 

[Citation omitted.] Therefore, we will likewise review the evidence related to the 

scour hole and condition of the river at the base of and immediately downstream 

of the dam. 

 According to Verreault, the original channelization of this part of the Trinity 

River by the Army Corps of Engineers was for the purpose of preventing and 

minimizing flooding. That effort included grade leveling of the channel; design 

grade is important to prevent erosion while also keeping water moving 

downstream. The intended grade for the area in which Dam No. 2 is now located 

was 522 feet mean sea level. After the channelization, the original dams were 

constructed for purposes of sediment and erosion control. 

 The evidence showed that prior to the 2003 reconstruction of Dam No. 2, a 

scour hole existed two to three hundred feet downstream of the original dam, 

which created a boil effect. According to Verreault, the formation of scour holes 

downstream of low-water dams was common before 2003 because the “near 

vertical-to-vertical” downstream face of such dams “highly aerated” the water 

flowing over them as it dropped down the dam faces. The force of the downward 

flowing water would “impact[] the water immediately on the downstream side of 

the structure,” creating a “zone of rotation” as it flowed along the bottom of the 

river channel, rose downstream, and was “directed back toward the face of the 
23 

structure.” This highly aerated area is called a boil, and it pushes objects that fall 

into the river in that area from the top to the bottom, directing them back toward 

the structure. This is a natural consequence of water flowing over such a 

vertical-face dam. These pre-2003 vertical-face dam designs caused drownings, 

including drownings of rescue crew members, and capsized boats. 

 Verreault averred in an affidavit that the 2002 design of Dam No. 2, on the 

other hand, 

creates a higher water pool downstream without a vertical drop even 

during higher water flow. The chute is designed to direct water 

along the surface of the river and not towards the bottom of the 

channel. Therefore, if an individual falls off the dam, there is no 

hydraulic boil that pushes them down, keeps them under water, and 

pulls them back toward the dam. Rather, the flow of water should 

push the individual downstream and toward the side of the river to 

shallow water. 

According to Verreault, there is “no boil zone and no undertow created by” Dam 

No. 2, and anyone who falls off the dam should not encounter anything other 

than the normal flow of the river. He agreed that a boil makes swimming more 

difficult but reiterated that the design of Dam No. 2 “does not create a boil.” 

 Verreault admitted that the flow of water through the kayak chute creates a 

“standing wave” on the other side. But according to Verreault, once water exits 

the chute, its velocity drops off because the channel widens; a “very thin stream 

of water mov[es] through the channel that almost appears to stop as the water 

spreads out, and there’s no velocity on the sides of that.” Verreault said that the 
24 

flow would not have drawn Brandy under the water because of the design of the 

dam. 

 Verreault averred that the base of the kayak chute is at approximately 

525.5 feet mean sea level. He also averred that a bathymetric survey of the river 

channel that he performed in 2003 during the reconstruction of the dams showed 

that the mean sea level immediately downstream from the old dam varied from 

bank to bank from 514 feet mean sea level to 525 feet mean sea level. The 

center part of the channel that was closest to the downstream face of the old 

dam ranged from 514 to 518 feet mean sea level, which means that if the Corps 

had excavated that part of the channel to the original design grade––522 feet 

mean sea level––the channel bottom immediately below the downstream face of 

the old dam had eroded four to eight feet below the original design grade. This 

result is the natural, expected effect of the flow of water over the old-style vertical 

face dams. 

 When TRWD redesigned and reconstructed Dam No. 2 in 2002 and 2003, 

it decided not to fill in the existing scour hole to bring the channel elevation back 

to the originally designed 522 feet mean sea level. Because the base of the 

kayak chute would be at 525.5 feet mean sea level, TRWD was concerned that 

kayakers wanting to perform underwater rolls or other maneuvers after passing 

through the chute could hit their heads or kayaks on the river bottom with only a 

three and one-half foot clearance. Instead, TRWD decided that the existing 
25 

scour hole, which the plan designated as being approximately 516 feet mean sea 

level, would remain in place. 

 Beason averred that TRWD learned of the scour hole created by the old 

dam during the 2003 construction. The redesign contemplated that the “existing 

pool,” which was described in the plan as 516 feet mean sea level “or 

approximately 8 or 9 feet of water depth below the chute,” would remain in place 

after construction of Dam No. 2. During the construction, workers built a 

temporary “coffer dam,” and “numerous items of rubble (such as soil, gravel, and 

remnant concrete) were dislodged by the construction equipment and slid into 

the scoured area.” According to Beason, after construction of Dam No. 2 was 

complete, he consulted with the designer, who told Beason that the river bottom 

downstream of the kayak chute needed to be at a depth of at least eight feet. 

Therefore, TRWD removed the coffer dam and “graded the channel bottom to a 

depth that would keep the river channel bottom no less than 8 feet from the 

bottom of the kayak chute built into the dam.” 

 However, evidence also shows that at the time of Brandy’s death, the 

scour hole at the base of the kayak chute was deeper than even the eight feet 

contemplated at the conclusion of the dam rebuild. According to Verreault, 

sometime before or after Brandy’s death––Verreault could not remember 

whether in 2012 or 2013––as a result of an unrelated hydrographic survey, 

TRWD discovered a scour hole located from the base of the dam to 

approximately two hundred feet downstream from Dam No. 2, stretching 150 feet 
26 

across. The loose materials that had been used for the fill had been washed 

away at some point, possibly during a flood event in 2007. Verreault did not think 

the scour hole resulted from the flow of water from the kayak chute. He 

acknowledged that a small island of debris appearing to be the fill that had been 

placed in the river bottom had appeared downstream, but he did not know when 

that “island” had appeared. Verreault agreed that if the design grade of the river 

bottom had been elevated to 522 feet mean sea level at the downstream base of 

Dam No. 2, a person would have been able to stand up. 

Two witnesses in the Park Plaza building south of the river adjacent to 

Dam No. 2 saw a person in the water that day. One heard screaming and when 

he looked out his office window, saw hands flailing above the water from 

someone in the river who was “closer to the near shore” and who “appeared to 

be unable to swim and was floating with the drift of the current.” The other 

witness looking out of the building saw a head above the water near where 

Brandy’s body was found. The Fort Worth Fire Department Dive Team noted 

that the depth of the water where Brandy was found was thirteen feet. 

 After Brandy’s death, Beason contacted the designer of the kayak chute, 

Gary Lacy, to ask if any changes could be made to the dam or surrounding area 

that might decrease the risk of drownings. Lacy advised Beason that raising the 

channel bottom depth to 522 feet mean sea level, approximately three and onehalf feet below the kayak chute, was now feasible because many kayakers had 

moved to using “shorter, stubbier ‘play’ boats.” This development in the sport of 
27 

kayaking made raising the channel bottom more feasible than it would have been 

in 2003. 

Verreault testified by deposition that part of his job with TRWD is to 

monitor “any deposition of sediment on or near a dam that might need to be 

removed from the river, or any areas indicated by bathymetric surveys that need 

to be filled in, in order to make the river bottom match the design grade.” He 

testified that TRWD’s Board had approved changes to the design grade 

immediately downstream of Dam No. 2 in August 2015, which included bringing 

the grade immediately adjacent to the base of the kayak chute to within three feet 

of the base of the chute, or about 522 feet mean sea level. Verreault agreed with 

the decision to raise the grade at that location, as recommended by Lacy, 

because as “part of [TRWD’s] program to both raise levees and channel bottoms 

or lower them to design grade,” this was an area that needed to be changed. 

Additionally, he said that if the grade were elevated to that level, a person of 

sufficient height could stand up if he or she fell into the river at that location. 

 Beason testified that the primary maintenance for the dam is “debris 

removal after storms [and] flow events.” He also had the job of replacing warning 

signs that may have been damaged during storms. Beason was aware of the 

scour hole or “plunge pool” at the base of the kayak chute; he thought it was at 

least eight feet deep as a result of the 2002 redesign. Before the rebuild, this 

“plunge pool” was eleven feet deep; thus, the concrete and rubble fill that was 

placed in it during the reconstruction brought it up only about three feet, still 
28 

about eight feet under the pre-dam design grade of 522 feet mean sea level. 

The 2015 design changes––bringing the grade up to around 522 feet mean sea 

level—occurred because after Brandy’s death, TRWD was told by the police that 

the depth was eleven to thirteen feet. Beason thought that was unusual at the 

time because he remembered that it was supposed to be eight feet. 

 According to Beason, as a result of the Fire Department Dive Team’s 

report about the depth of the river where they found Brandy, he ordered a 

bathymetric survey, which indicated the depth of the water at that location was, 

indeed, eleven to thirteen instead of eight feet deep. When asked why he 

thought so many people had drowned at Dam No. 2, Beason said, 

I wish I knew what the real problem was. . . . I have no employees 

that have had any eyewitness . . ., the witness statements are 

somewhat ambiguous and conflicting. Did someone fall off the dam 

into the water? Were they in the chute? Were they not in the chute? 

I have nothing to tell me that -- what exactly happened. 

 The evidence thus shows that the depth below the dam was supposed to 

be eight feet by design, but was instead eleven to thirteen feet deep; that the 

scour hole was partially made up of loose debris and fill that washed away and 

became deeper over time; that TRWD was charged with monitoring and 

maintaining the channel depth; that an almost eleven foot deep scour hole had 

existed before Dam No. 2 was rebuilt in 2003 and filled into a depth of eight feet; 

that a boil effect had existed at the previous dam on the same site; that an 

artificial island of debris had been created downstream of Dam No. 2; and that at 

least one person who had swum in that area to save a child indicated that the 
29 

water pushed her down to the bottom and then popped her back up. This is 

some evidence contradicting TRWD’s assertion that Verreault’s testimony 

conclusively proved that there was no boil effect due to the design of the kayak 

chute and thus creating a fact issue as to whether TRWD’s failure to maintain the 

eight-foot-designed depth contributed to the creation of a boil effect or undertow 

at the base of Dam No. 2. Thus, the complaints about the deepening scour hole 

and possible related boil effect are not complaints about the original design, but 

rather the failure to maintain the original design. See Trevino, 153 S.W.3d at 62–

63 (holding that section 101.056 did not reinstate immunity from allegations that 

bleachers had not been properly maintained in a safe condition when supported 

by police report stating that the sides of the bleachers were loose from wear and 

tear and that some of the platform boards were slightly warped, “possibly causing 

someone to trip”). 

 Conversely, the Johnsons’ complaints—that had the original scour hole 

existing in 2002 and 2003 (when the dam was redesigned and rebuilt) been filled 

in to a three-foot depth, Brandy would have been able to stand up when she fell 

in—are all related to a discretionary design function. No evidence shows that 

TRWD ever planned in 2002 or 2003 to raise the existing scour hole to a threefoot depth; instead, the evidence shows that the eight-foot depth design was 

intentional so as to accommodate the passage of kayakers and boats. 
30 

No Evidence Supports the Allegation that Either a Misuse of 

Personal Property or a Special Defect Caused Brandy’s Death 

 TRWD argues that the Johnsons cannot maintain any surviving claims 

under either a misuse of personal property theory or a special defect theory 

because as a matter of law, they have not alleged or shown a viable claim under 

either theory. The Johnsons do not argue that they can maintain such claims, 

and we agree. The Johnsons did not allege any specific personal property 

misused by TRWD, nor did any of the evidence show such a misuse. To the 

extent that they alleged a misuse of the warning signs because they are 

inadequate, TRWD’s liability is not waived; a nonuse or failure to erect adequate 

signage is not an allegation of misuse of personal property. See City of Fort 

Worth v. Crockett, 142 S.W.3d 550, 554 (Tex. App.––Fort Worth 2004, pet. 

denied) (op. on reh’g). Additionally, the conditions of which the Johnsons 

complain cannot be special defects. A special defect is a condition of the same 

kind or class as an excavation or obstruction. Tex. Dep’t of Transp. v. York, 284 

S.W.3d 844, 847 (Tex. 2009) (op. on reh’g). Additionally, “a special defect must 

be something out of the ordinary course of events rather than a long-standard, 

routine, or permanent defect.” Tex. Dep’t of Transp. v. Andrews, 155 S.W.3d 

351, 356–57 (Tex. App.––Fort Worth 2004, pet. denied) (quoting Villarreal v. 

State, 810 S.W.2d 419, 422 (Tex. App.––Dallas 1991, writ denied)). There is no 

evidence that an ordinary user of Dam No. 2 would encounter the scour hole and 

boil effect. Although the Johnsons presented evidence that people would walk 
31 

“all over” the dam and that some had fallen off of the dam, there is no evidence 

that the deepened scour hole or resulting boil effect was a temporary condition 

out of the ordinary course of events that would have created an unexpected 

danger to an ordinary user of the dam. Accordingly, we conclude and hold that 

they did not allege a special defect. See Beynon, 283 S.W.3d at 330–32; State 

Dep’t of Highways & Pub. Transp. v. Payne, 838 S.W.2d 235, 238–39 (Tex. 

1992) (op. on reh’g); Wardlaw v. Tex. Dep’t of Transp., 307 S.W.3d 369, 373–74 

(Tex. App.––San Antonio 2009, no pet.). We thus must address TRWD’s final 

argument regarding whether the Johnsons alleged a premises defect claim for 

which immunity is waived under section 101.021. 

TRWD Did Not Allege that the Deeper “Scour Hole” and 

Alleged Boil Effect Was Open and Obvious 

TRWD finally argues that even if part of the Johnsons’ claims are not 

barred, they nevertheless failed to state a claim for which its liability is waived 

because the danger to Brandy was open and obvious.6 But because TRWD did 

not assert in its plea to the jurisdiction that the scour hole and boil effect were 

open and obvious––only the kayak chute and water running through it––the trial 

court did not err by denying its plea to the jurisdiction on that basis. 

 Accordingly, we overrule TRWD’s issue as to the Johnsons’ allegations 

regarding the deepening scour hole and resulting boil effect due to TRWD’s 

 6TRWD raised other ways in which it contends the Johnsons failed to state 

a claim that was waived under sections 101.021 and 101.022 in its plea to the 

jurisdiction, but it limits its argument on appeal to its open and obvious argument. 
32 

alleged failure to maintain that area and part of the river channel around Dam 

No. 2. But we sustain its issue as to the Johnsons’ complaints about the 

remainder of the Premises, including that TRWD should have filled in the scour 

hole during the 2002 redesign and 2003 rebuild of Dam No. 2 to a depth of only 

three feet below the kayak chute. 

Conclusion 

 Having overruled TRWD’s sole issue in part, we affirm the trial court’s 

order denying TRWD’s plea to the jurisdiction in part as set forth in this opinion. 

But having sustained its issue in part as to some of the Johnsons’ claims as 

detailed above, we reverse the trial court’s order as to those claims and render a 

judgment of dismissal of those claims only. See Tex. R. App. P. 43.2(c). 

/s/ Terrie Livingston 

TERRIE LIVINGSTON 

CHIEF JUSTICE 

PANEL: LIVINGSTON, C.J.; DAUPHINOT and SUDDERTH, JJ. 

SUDDERTH, J., filed a concurring and dissenting opinion. 

DAUPHINOT, J., concurs without opinion. 

DELIVERED: December 30, 2016