### TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03
- 20
- 00439
- CV

April Brockwell Marek and John Brockwell, Each Individually and as Representative of the Estate of Justin Brockwell, Deceased , Appellant s

v. Jamie Slayden and David Slayden , Appel l e e s

FROM THE 146TH DISTRICT COURT OF BELL COUNTY NO. 305,859
- B , THE HONORABLE JACK WELDON JONES , JUDGE PRESIDING

M E M O R A N D U M O P I N I O N

A pril Bro ckwell Marek and John Brock we ll, individually a nd as representatives of the estate of Jus ti n Brockwell (collectively, “ the Brockwells ” ) fi le d suit against Jamie Slayden and David Slayden (collect i v ely, “ the Slaydens ” ) asserting statu tory wrongful death and survival actions based on the death of their son , Justin Brockwell

. See Tex. Civ. Prac. & Rem. Code § § 71.004 (parent s of decedent may sue to recover their own damages resulting from deced ent ’ s death) ; . 021 (providing for survi val of cause of a ction by which decedent may have sought recovery for personal injuries, pain and sufferin g, and oth er damages suffered before death). 1
The Slaydens filed a mo tion for summary jud g ment, which the trial court granted. The

1 As part of their stat utory wrong f ul death and s urviva l cla ims, the Brockwells were required to esta blish that a wrongful act occur red. McCullough v. Go dwi n , 214 S .W.3d 7 93, 805 (Tex. App.

— Tyler 2007, no pet.) ; see also Tex. Civ. Prac. & Rem . Code § § 71.002(b) , .021. The Bro ckwells conte nd ed that there are three wrongful acts at issu e here: (1) general negligence; (2) conduct giving rise to liability for prem ises d ef ect; an d (3) gross negligenc e.2

Brockwells appeal, arguing that they raised genuine issue s of material fact as to each of their claims. We affirm the summary judgme n t

.
BACKGROUND Justin Brock w ell was dr iving a car on FM 436 in B ell C ounty wh e n he lost control of the vehicle and crashed into a cement culvert adjacent to the roadway in the right

- of

way owned by the T exas Depart ment of Tr anspor tation (T xDOT)

. The Br o c kwells alleged that the cul vert had a vertical face that was at a 90

- degree an g le to the ground rather than a sloped face that “ would have allowed his vehicle to safely drive over the cul vert. ”

The Brockwells su ed the Slayden s , who o wned proper ty off F M 436 that they accessed using a dr iveway that p assed over the culvert that Just i n Brockwell c rashed int o . To support their wrongful death and survival claims , t he Brockwells asserte d causes of action for negligence, gross negli gence, and pr emises liabili t y . The Brock wells alleged that the Slaydens breached their duty of car e an d proximately caused Justin Brock well ’ s death by :

a . failing to proper ly adhere to the construction plans for the culvert; b. failing to adhere to proper industry standar ds in th e const ruction of the culvert;

c. failing to pro vide Ju stin Brockwell w i th a safe cul vert in the eve nt evasive action was required ; and d. permitting a n unreasonably dangerous condition to exist on the premises

.
The Slaydens filed traditional an d no

- evi de nce motions for summar y judgment as serting th a t the Brock wells had no c la im for general negligence because their negligence claim sounds solely in premises liability. T he Slaydens also maintained that they owed no duty t o Justin Brock well becaus e they d id not own or control the culve rt, nor did the y design , construct, or mo d ify the3

culvert, which was built before they pur chased the propert y accessed by the driveway over th e culvert. Th e Slaydens further argued that they had no duty to make any c hanges t o the culvert because t hey were n ot notified and ordered by TxDOT to imp l ement any changes nor had they constructed or reconstructed the access driveway. The Slaydens asserted that t hey did not breach any duty willfully, wantonly, or through gross negli ge nc e nor did they proximately cause Justin Brockwell ’ s injur i es.

The Sl a ydens attached ev idence to their m ot ion for summary judgment , including the a ffidav it of Soloman Thomas, a TxDOT Area Engineer, w ho averred that (1) the concrete culvert is lo cated in t he T xDOT highway ri ght

- of

- way ; (2) the cu l vert was originally built befo r e 2009, the year that the Slaydens purchased th eir property ; and (3) all construction of or modif ications to access d ri ve ways such as the Slayde ns ’ can only legally be made with TxD OT ’ s approval. Thomas further averred that landowners are not requir ed to make changes or updates to existing access drive way s to comply with evolving TxDOT safety standards unless ordered to do so or unless they construct or reconstruct an access drivewa y.

The Brockwells filed a res ponse to the mot ion s for summary judgment , a rguing that the motions should be denied because ( 1) the Slaydens had a duty to warn emergency
tre spassers or licensees of know n, dangerous c onditions on the premise s , (2) t he Slayd en s failed to alert Justin Brockwell about the “ deadly culvert , ” (3) the c u lvert was an unreasonably danger ous condition, and (4) the Slaydens failed to make the culver t reasonably safe for Just in Brockwell a nd others similarly situat ed

. The Broc kwells al so main tained that the Slaydens had
pos sessi on and control o f the culvert.4 After the hearing, the trial court granted the Slayden s ’ motions for summary judgment without specifying the grounds on which it relied and rendered judgm ent that the
B rockwells tak e nothing on their claims against the Slaydens. This appeal followed.

D ISCUSSION We review the granting of a mo tion for summary judgm ent de novo. 2 Buck v. Palmer , 381 S.W.3d 525, 527 (Tex. 2012) . When the trial court does not speci fy the grounds for its ru l in g, summary judgment must be affirmed if any of the grounds on which the judgment was sought ar e meritorious. State v. Ninety Thou sand Two Hu n dred Thi rty

- Five Dollars & No Cents
in U .S. Cur rency , 390 S.W.3d 289, 292 (Tex. 2 013)

.

On appeal, the B rockw e lls argue that summary judgment w as improper because they raised genuine issue s of material fact regardin g the challenged elements of ea c h of their cl aims. The Slaydens counter that, as a matter of law, th ey are entitled to summary jud gment

on the Brockw e ll s ’ general negligence cl aim because the pleadings do not allege a cause of action for general negli gence bu t instead could only reasonabl y be cons tr ued to allege a premises

- liability c laim. We first con sid e r w hether the Brockwells a sserted a viab le general negligence claim.

Und er Texas law, a person injured o n an other person ’ s property has two potential causes of action: (1) a negligence claim for neglige nt activity on the prem ises, or (2) a prem ises lia b ility cla im for an unreaso nably dan gerou s condition on the premises. Alvarez v. Salazar

2 Th e standards for reviewing a summary judgment are well establis hed and u ndisputed on appe al. See , e.g. , City of Keller v. Wilson , 168 S.W.3d 802, 827 (Tex. 2005) ; see also Goodyear Tire & Rub ber Co. v. Mayes , 236 S.W .3 d 754, 75 5 (Tex. 2007) ; Fort Worth Oste opathi c Ho s

p. , Inc. v. Rees e , 1 48 S.W.3d 94, 99 (Tex. 2004) ; F ord Motor Co . v. Ridgway , 135 S.W.3d 5 98, 600 (Tex. 2004) ; see also T ex. R. Civ. P. 166 a(c), (i) . Accordingly, we need not repeat them here.5

D avis , No

. 13

- 18

- 00366

- CV, 2019 WL 5445215, at *4 (Tex. App.

— Corpus Christi

- E din b urg Oct. 2 4, 2019, no pet .) ( mem. op.) (ci ting Keetch v. Kroger Co. , 845 S.W.2d 262, 264 (Tex. 19 9 2) ). Al though premises liab ility is a form of neglig enc e, “ [n]egligenc e and premises liability claims . . . are separa te and distinct theories o f recovery, requiring pl aintiffs to prove different, albei t simi la r, elements to secure judgment in their favo r . ” DeLamar v. Fort W ort h Mo untain Bike r ’ s As s ’ n , No. 02

- 17

- 00404

- CV, 2019 WL 311517, at *3 (Tex. App.

— Fort Wo rth Jan 24, 2019, pet. denied) (mem. op.) (quoti ng United Scaffolding, Inc. v. Levine , 537 S.W. 3d 463, 472 (Tex. 2017) ) ; see also Clayton W. Williams, Jr. , I n c. v . Olivo , 952 S.W.2d 523, 529 (Tex. 1997) (stating that “ [b]ecause premises defect case s and neglig ent activity cases are based on independent theories of recovery, a simple neglige nce [jury ] question . . . cannot support a recovery in a premises defec t ca s e ” ).

Ne gli gent

- activity and premises liab ility claims “ involve clos ely relat ed but distinct duty analyses. ” Unit ed Scaffolding , 537 S.W.3d at 471

. Premises liability is a “ special form of negl igence in which the duty owed to the plaintiff de p ends upon t he plainti f f ’ s status on the premises at the time of the inciden t. ” De Lamar , 2019 W L 311517, at *3 (quoting Wy ck off v. George C. Fuller Contracting Co. , 3 57 S.W.3d 157 , 16 3

- 64 (Tex. App.

— Dallas 2011, no pet.) (citing S cott & White Mem ’ l Hosp. v. F air , 310 S.W.3d 41 1 , 412 (Tex. 20 10) ) )

. To prevail on a premises liabil ity claim, a plaintiff must prove (1) actual or constructive knowl edge of some condi tion on th e premises by the owner; (2) tha t the condition posed an unreasonable risk o f harm ; ( 3 ) th a t the ow ner of th e pr emises did not exercise reasonable care to reduce or el iminate the risk; and (4) tha t the owner ’ s failure to use such care proximately caused the p lain tiff ’ s in juries , Wal

- Mart Stores, Inc. v. Gonzalez , 968 S .W.2d 934, 93 6 (Tex. 1 998) , whereas u n der th e common law doctrine of negligen ce, a plaintiff m ust prove (1) a legal duty owe d by one person6

to anot her; (2) a breach of tha t dut y; and (3) damages proximately r esulting from th e breach , Helbing v. Hunt , 402 S.W.3d 699, 702 (Tex. App.

— Houston [ 1s t Dist. ] 2012, pet . denied )

.

A person injured on another ’ s prop erty may have either a premises liability claim or a negl igence clai m against the property owner. Occidental Chem. Corp. v. Jenkins , 478 S.W.3d 640, 6 44 (Tex. 2016) . However, onl y on e the ory of re c overy is available for any given set of facts. Keetch , 845 S.W.2d at 264

. The lines between negligent activity and premises liability are sometimes uncle ar, since almost every artificial condition can be said to have been created by an activity

. See De l La go Partner s, Inc. v. Smith , 307 S. W.3d 762, 776 (Tex. 2010) . Therefore, determining whether a claim is one for a premises defect or general neglig enc e “ can be tricky

. ” DeLamar , 2019 WL 311517, at *4 ( quoti n g Austin v. Kroger Tex.
L. P. , 746 F .3d 191, 1 96 (5th Cir. 2014) , certified question answ ered , 465 S.W.3d 193 (Tex. 2015) ). The policy undergirding this distinction is th at negligenc e encompasses a malfeasance theory based on affirmat ive , contemporaneous c onduct that caused the inj u ry, wher eas premi s es liability encompasses a nonfeasance the ory based on the owner ’ s failure to take mea sures to make the property sa fe. S ee D el Lago Par tners , 307 S.W.3d at 776 ; see also Timberwalk Apartments , Par tners , Inc. v. Cain , 972 S.W.2d 749, 753 (Tex. 199 8) (expla i ning t h at negligent activit y concerns “ simply doing or fai ling to do what a person of ordinary pru dence in the same or simila r circumstances would have not done or done ” while premises liab ility concer ns “ the
f a ilure to use ordinary care to reduc e or el i m i nate an un reasonable risk of harm created b y a premises condition which the owner or occupier of [land] knows about or in the exercise of ordinary care should know about ” ). To dete rmine on which side of the li n e a claim falls, Texas

cou rts look to whethe r the activity that ca used the condition was on going or had ceased wh en the injury occurred. See Occidental Chem. , 478 S.W.3d at 644 ; Keetch , 845 S.W.2d at 265

.7 Theor etically, a litigant may maintain ca u ses of action for both gen eral negl igence

an d prem ises l i ability. DeLamar , 2019 WL 311517, at *4 . However, to be via ble, the general negligence the ory of recovery must be based not on an injury resulting from the co ndition of the property, b ut on the de f endant ’ s co ntemporaneous a ctivity. Id. ; see Mangh am v. YMCA of Austin, Tex.

- Hays Communities , 408 S.W.3d 923, 929 (Tex. App.

— Austin 2013 , no pet.) ( “ A litigant may maint ain c auses of action for both general negligence and premises liabili ty but under the gene ral

- negligence theory of recov ery, the c l aiman t ’ s injury must res ult from the defendant ’ s contempora neous acti vity. ” ). The “ Texas Supr eme Court has held tha t a premise

defect claim for purposes of the TTC A, as with the c ommon law, is distingui she d by ‘ a

n onfeasance theory based on the owner ’ s f a ilure to t ake measures to make the property safe, ’ focusin g on injury from a ‘ condition ’ of re al prope r ty , as contrasted with ‘ affirmative, contemporaneous conduct by th e owner th a t ca u sed the inju ry. ’ ” Te xas Facil ities Comm ’ n v. Speer , 559 S.W.3d 245, 2 5 6 (Te x. App.

— Austin 2018 , no pet.) (quoting Samp son v. University of Tex. , 500 S.W.3 d 380, 388 (Tex. 2016) )

.

Thus, while premi ses liability encompasses a nonfeasance th e ory based on the

o wner ’ s f ailure to take measur es to make the proper ty sa fe, neglige n t act ivity is a malfeasance th eory based on affirmative, contemporaneous conduct by t he owner that cause d the injury. Alvarez , 2019 WL 5445215, at *4 . Here, the Brock we l l s ’ claim do es not arise o ut of any negligent acti vity by the Slayden s but , instead , i s a p remises liability claim sound in g in nonfeasance. See Castro v. H.E. B. Grocery Co., L.P. , No. 14

- 18

- 00277

- CV, 2019 WL 2518481, at *4 (Tex. App.

— Houston [14th Dist.] June 18, 2 019, no pet. ) ( “ Here, t he Castros ’ negligence claim arises from an allega ti on of nonfeasance rather than any claim of malfeasance on H EB ’ s part. ” ). All o f the allegedly negligent acts the Brockwel ls identify in their amended complaint8

invo lve some failure to do somethi ng rather than affir mative and contemporaneous conduct by
t he Slayd ens . The Brockwell s alleged that Just in Brockwell was injured when his car collided with the vertical face of the cul vert , which t he y contend constituted a dangerous condition know n to the Slaydens that they fa iled to warn of or make reasonably sa fe . The Brockwells did not allege that Justin Brockwell w as injured by any n egligent activity on the Slaydens ’ part. See
Ti mberwalk Apart

ments , 972 S .W. 2d at 753 (stating that cla imant did not allege sh e was injured

“ by or as a contemporaneous result of an y acti vity of defendants ” so required to state a negli gent

- activity claim ). Moreover, there is no evidence that any contemporaneous, ongoin g activity on the premises caused Justin Broc kwell ’ s d eath. The evidence esta bl ishe d that the culver t was in the sa me con dition th at it had been since befo re the Slaydens purchased the property in 2009 a nd th a t they had not altered it in any way before Ju s tin Brockwell crashed into it . The conditio n of the culver t did not re sult from any contem poraneous, ongoing ac t iv ity.
B ecause the Brockw ells ’ general negligence claim do es not sound in negligent activity, we conclu de that it fail s as a matter of law

. The trial cou r t properly granted summary judg ment in
t he Slaydens ’ favor on the general negligence claim

.

Premise s l

iabi li ty We next consider whether the trial court erred in granting the summary judgment motion as to the Brockwel ls ’ premises liability claim . The Slayden s ’ motion fo r s ummary judg ment asse rted that they were not liable as a matter o f law because th ey did no t own , control, or have a righ t of control over the culvert at issue in this case. In support of their motion, the Slaydens offered summ ary - judgment evidence establi s hing that t he cul ver t was in t he right

- of

way owned by TxDOT, that the Slaydens did not m aintain the culvert itself, that the Slayden s did9

not d esign or construct the culvert, and that they were not permitted to make any modification to either the access driv eway or the culve rt without TxDOT ’ s appr ov al. On appeal, the Brockwells
argu e t hat al though the culvert is “legally” owned by TxDOT, the Slaydens exercised sufficient control over the culvert to be under the same duty as the owner to keep the premises in a s afe conditio n. See City of Denton v. Page , 701 S .W.2d 831, 834 (Tex. 1986 )

. The B r ockwells point
to e vidence that the Slayd ens mowed and otherwise maintained the dr iveway and grass surrounding the culvert and that they had at one time placed decorative lights on the d rive way above the culvert. The Brock well s also note that af ter the c ulver t was damaged by J ustin Brock well ’ s vehicle, the Slaydens coor dinated its repair , which the Brockwells assert is evidence th at th e S laydens exercise d co nt rol o f the culver t.

As an initial m atter, evidence that the Slaydens mowed the area ar oun d the culvert and used and maintaine d the access driveway that ran over the cul vert does not constitute evidence that the Slaydens cont rolled the culvert i tself. “ The relevant inquiry is w he ther the defendant as sumed sufficient control over the part of th e pre m ises that presented the all eged danger so tha t the defendant ha d the responsibility to remedy it. ” County of Cameron v. Brown , 80 S. W.3d 549, 556 (T ex . 2002)

. Further mo re , the evidence established that the Slayde ns had to seek and obtain approva l f rom Tx DOT to make any r epa irs o r modifications to the culvert , which

was located in TxD OT ’ s right

- of

- way. As the Slayd ens po int out, the need to obtain permission to make chan ge s to the culvert establ ishe s the opposite of control over the culvert. See Ro sentha l v. Boy d , No. 03

- 11

- 00037

- CV, 201 3 WL 1876513, at * 5 (Tex. App.

— Au stin May 1, 2013,

no pet.) (mem. op.) . In Rose nthal , this Court h eld that uncontroverted and undispute d summary judgment evidence that the City of Austin, rath er than the d efendan t s , own ed the ri ght

- of

- way where the allegedly dangerous co ndition existed couple d wit h the fact that the City code10

prohibited anyone from making improvements in the City ’ s right

- o f

- way demonstrated that the defendants di d not exercise con trol over the pre m is e s nec essary to give ri se to a duty to the plain tiff. I

d. ; see also Dixon v. Houston Raceway Park, Inc. , 874 S.W.2d 76 0, 762 (Tex. App.

— H ouston [1st Dist.] 1994, no writ ) (hold ing th at the premises owner ’ s duty does not extend be y ond the limits of prem ise s owne rs ’ control). Because the evidence co nclusively establis hes tha t the Slaydens di d not o wn or control the culvert, the trial court properly granted their motio n for summary jud gment on the Brockwell s ’ premises liability claim.
Gross negligence

In additi on to their gener al negligence c laim, t he Brockwells asserted that the Slayden ’ s conduct constituted gross negligence as that term is defined in the Texas Civil P racti ce and Remedies C ode section 41.011(11)( a )

- ( b )

. See Tex. Civ. Prac. & Rem. Code § 41.011 (11)

. Gross negligence requires an ob jective element and a subjective element. Boerjan v. Rodri guez , 436 S.W.3d 307, 311 (Tex. 2014) ; see Tex. Civ. Prac. & Rem. Code § 41.001(11 ) . F irst,

“ v iewed objectively from the actor ’ s standpoin t, the act or o m issio n complained of must involve
an extre me deg re e of risk, considering the probability and magnitu de of the pot ential harm to others. ” Boerjan , 43 6 S.W.3d at 31 1 . Seco nd, “ the actor mu st have actu al, su bjective awareness of the risk involved, but neve rthele ss proceed in conscious indifferen ce to the rights, safety, or welfare of others. ” Id. Under the objective element, an “ extre me risk ” i s not a remote possibility of injury or eve n a high probability of minor harm, bu t “ the likelihood of serious inj ury to the plaintiff. ” Id

. ; Cro oks v. M oses , 138 S.W.3d 629, 640 (Tex. App.

— Dallas 2004, no pet.) . Under the subje c tive element, ac tual awareness means the defendant k n ew about the ris k, but his acts or omissions demonstr ated he did not care. Boerja n , 4 36 S.W .3d at 311

.11 After reviewing the summary judgment ev iden ce, we conclude that the evidence presented does not rais e a fact issue regarding whether the Slayden s were subjectivel y aware of an ext reme degree of risk presented to motorist s by the cul vert

. T he Brock wells asserted that Justin Brockwell “ unintentionally veered ” off the road before striking the cul ver t , that the Slayden s were grossly neg ligent becau se they had actua l, subjective awareness of the risk that a motoris t would ve er off the ro ad a nd cra sh into the culvert , and that the ir failure to mo dify the culvert in the T xDOT right

- o f

- way demonstrated that they did not care. The evidence on which the Brock wells rely to sup port the subjective ele ment of their gross negli gence claim are two
prev ious e vents that occurred on the road way at or near the Slaydens ’ property. I n the first
in cident , a n into xicated driver veere d off the opposite side of the road fro m t heir drivew ay a nd hit the Slaydens ’ mailbox. In the second incident, a truck “ cras hed and fl ipped ” when it hit a culvert up the road from the Slaydens ’ property. T he summary judgment evidence, however, does not s how that the truck “ flip ped o ver ” and, in fact, th e deposition test imony s ubmitted was that the truck did not flip over. Mo r eove r, the summary judgment evidence d oes not include testimony that the Slaydens knew whether the c ulvert up the road w as desi gned like the one at issue in this case. The only summary jud gm e nt evidenc e was Jamie Slayden ’ s testimony that she believed the othe r culv ert was “ pipe and dirt ” and did not re call how it w as desig ned. Additionally, t he re was no evidence submitted to suggest that either drive r suffered any se rious bod ily harm. Although the Brockwell s argue that Jami e Slay den admitted that a culve rt w i th a
9 0

- degree face can be dangerous and that sloped culverts are de signed to pro mote safety when vehicles veer off the road, Jamie Slayden ’ s d eposition te stimony sub mitted to the trial court was that any accident can be dangerou s, that this accident ende d up be ing dangerous, and that sloped culverts “ possibl y ” are designed for safety purposes. This evidence fails to r aise a fact issue as12

to whether the Sla ydens wer e subjectivel y aware of any extreme risk to motorists posed by the culvert when th e acc iden t occur red as opposed to after it.

More over, even i f the evidence raised a fact issue as to whether the Slayden s were subjectively aware of an ex treme risk to motori sts posed by the culvert, the re was no evi dence that they were consciously in differen t to it. A lthough th e Brockwel ls argue that the Slaydens should have ei ther modif

ied the culvert or put up a warning sign about it, the evidence submi tted to the trial co urt was that the Slayden s did not c r eate or control the condition of the culver t

. T h e

ev i dence was th at the culvert was subject to TxDOT oversight and t hat the Slayden s could not make al terations without TxDOT approval. Add itionally, the B rockwells assert that the Slaydens had a duty to make the culvert sa fe by installing warning sign s and refle cto r s , but there was no evidence that the proposed warning sign s or reflectors would have prevented a vehicle from

“ unintentionally veering ” off the roa dway during the dayli ght and crashing i nt o the culvert.
We conclude that t he summary judgment evidence does n ot raise a fact issue regarding whether the Sla ydens were aware of and in different to an extr eme risk to motorist s posed by th e culvert

. The tria l cour t properly granted the motion for summary judgmen t on the Brockwells ’ gross negligence claim. 3

3 T he Br oc kw ells argu e for the first time on appeal that public po licy supports impo sing l iability on property owners such as the Slaydens under the facts of this case. The se policy b ased argu ments were n ot presented to the trial court and are not p reserved for app el late revi ew . See Tex. R. Civ. P. 166a(c) ( “ Issues no t expressly presente d to the trial court by written motion , answer or oth er response shall no t be consid ered on appeal as grounds for reversal. ” ); McConnell v. Sout hside Indep. Sch. Dist. , 858 S.W. 2d 3 37 , 341 (Te x. 1993) ( “ [I]ssues a non

- movant c ontends avoid the mo vant ’ s entitlement to summary judgment must be expressly presen ted by written answe r to the motion or by other written response to the motion

. . . . ” ). Moreover, to the ext ent the Brock well s urge this Court to impose duties beyond those currently recognized by the relevant caselaw, we would decline to do so. See Pe tco Animal Suppl ies, Inc. v. Schu s t er , 1 4 4 S.W.3d 554, 565 (Tex. App.

— Austin 2004, no pet.) ( “ As an intermed iate appellate c ourt , we are no t free to mold Texas law as we see fit bu t must instead follow the precedents of the Texas13 CON CLUS I ON For the reasons stated in this opinion, we affirm the t rial co urt ’s judgment.

________________________________________ __ Thomas J. Baker , Ju s ti ce Befor e Chief Justice Byrne, Justices Baker and Smith Affirmed Filed: January 7, 2022

Supreme Court unless and u ntil the highest cou rt overrules them or the Texas Legislature su persedes them by statute. ” ). “ We m ust, in short, foll ow th e ex is ting law ra ther than change it, and we have adhered to that basic limiting pri n ciple in a variety of contexts. ” Anderson v. A rcher , 490 S.W.3d 17 5, 177 (Tex. App.

— Austin 2016 ) , aff ’ d sub nom. Archer v. Anderson , 556 S.W.3d 228 (Tex. 2018)

.