NUMBER 13-14-00439-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG

CITY OF BAY CITY, Appellant

v.

BOBBIE P. GASPARD, Appellee.

On appeal from the 23rd District Court

of Matagorda County, Texas.

MEMORANDUM OPINION

Before Chief Justice Valdez and Justices Rodriguez and Longoria

Memorandum Opinion by Justice Longoria

Appellee Bobbie Gaspard tripped and injured herself while exiting the Business 

Development Center (the Building) owned by appellant City of Bay City (the City). 

Gaspard filed a premises defect suit against the City. The City filed a plea to the 

jurisdiction, claiming that Gaspard did not plead sufficient facts to demonstrate that the 
2

City had waived its sovereign immunity. After the trial court denied the City’s plea, the 

City filed this appeal. See TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(8) (West,

Westlaw through Chapter 46, 2015 R.S.) (allowing an interlocutory appeal after the grant

or denial of a government’s plea to the jurisdiction). The City argues in three issues that 

the trial court erred in denying its plea to the jurisdiction. We reverse and render judgment 

for the City.

I. BACKGROUND

According to the City, around 1994, City employees in the Building experienced 

problems with the wind blowing the front doors open, scattering all of their papers around, 

and lowering the temperature in the offices. Building Official Jimmy Hendrickson was 

given the job to fix the problem. Hendrickson stated during his deposition that he decided 

that the best solution was to enclose the covered front porch area with glass, and include 

exterior doors between the supporting columns of the porch roof. He testified that he 

hired a glass company to accomplish the task, sometime between 1994 and 1998. 

Hendrickson claimed that he personally met with Vaughn Watts, the owner of the glass 

company, to discuss the design of the porch area and to tell Watts exactly how he wanted 

the porch built. Hendrickson further asserted that the glass area was constructed exactly 

“as [he] intended and in accordance with the design that [he] developed.” Outside the 

installed doors, there were only two steps: a step down from the doorway and a second 

step down onto the sidewalk. Hendrickson testified that “at the time that it was done, it 

appeared that was the only way we could do it.”

Gaspard testified in her deposition, even though she could not give a specific 

number, that she had visited the Building about once a month for the previous five years 
3

to attend meetings and that prior to the accident, she used the same stairs on almost 

every visit.1 Gaspard admits that on October 30, 2012, she went to the Building as usual. 

As she left the Building, she tripped and fell on the stairs, sustaining serious injuries. 

Gaspard filed suit against the City and alleged a premises defect cause of action, claiming 

that the construction of the exit steps violated the City’s building code. The City filed a 

plea to the jurisdiction, claiming that the City had not waived its immunity. Gaspard replied 

by filing an amended petition and a response. Attached to the response was an affidavit 

from Gaspard’s daughter, Joan. In Joan’s affidavit, she testified that about a week after 

her mother tripped, Joan went to the Building to speak with Karen, an employee of the 

City. A conversation ensued with Joan, Karen, and an unidentified woman inside the 

Building. Joan mentioned the alleged difficulty of the door threshold. Joan claims that 

one of the woman said the exact words, “most fall in when entering.” However, Joan 

could not identify specifically which person said those words. The City objected to Joan’s 

testimony as inadmissible hearsay; the court overruled the objection. The City also 

objected to the deposition testimony of Kelly Golda, Gaspard’s retained expert, that was 

attached to Gaspard’s response; this objection was overruled.

At a hearing on June 16, 2014, after hearing arguments, the trial court advised the 

parties that he would be denying the plea to the jurisdiction and told Gaspard that she 

had until July 2, 2014 to supplement the record, if she so desired. Gaspard responded 

to the City’s objections and plea to the jurisdiction and attached an affidavit from Golda. 

On July 2, 2014, the trial court denied the City’s plea to the jurisdiction. The City filed its 

notice of appeal on July 15, 2014.

 

1 Gaspard testified that she had used the handicap ramp a few times but stopped using the ramp 

after finding the door at the top of the ramp locked on several occasions.
4

II. STANDARD OF REVIEW AND APPLICABLE LAW

To determine whether the plaintiff has affirmatively demonstrated the court's 

jurisdiction to hear the case, we consider the facts alleged by the plaintiff and, “to the 

extent it is relevant to the jurisdictional issue, the evidence submitted by the parties.” Tex. 

Natural Res. Conservation Comm'n v. White, 46 S.W.3d 864, 868 (Tex. 2001). If a 

plaintiff pleads facts that affirmatively demonstrate an absence of jurisdiction and such 

defect is incurable, immediate dismissal of the case is proper. Peek v. Equip. Serv. Co.,

779 S.W.2d 802, 804—05 (Tex. 1989). Otherwise, the plaintiff should be given an 

opportunity to amend its pleadings to demonstrate jurisdiction. Id. The process of 

deciding whether jurisdictional facts have been affirmatively plead is similar to a summary 

judgment: if the evidence does not raise a genuine issue of fact regarding the 

jurisdictional issue, then the plea to the jurisdiction should be granted. Miranda, 133 

S.W.3d at 228.

Sovereign immunity defeats a trial court’s subject matter jurisdiction. Tex. Dept. 

of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004). The trial court should 

determine the issue of subject matter jurisdiction, including whether sovereign immunity 

divests it of jurisdiction, at the earliest stage possible before allowing the case to proceed. 

Id. The plaintiff bears the burden of alleging facts affirmatively demonstrating the trial 

court's jurisdiction to hear a case. Mission Consol. Indep. Sch. Dist. v. Flores, 39 S.W.3d 

674, 676 (Tex. App.—Corpus Christi 2001, no pet.). Whether a plaintiff has alleged facts 

that affirmatively demonstrate a trial court's subject matter jurisdiction is a question of law 

that we review de novo. Miranda, 133 S.W.3d at 226.
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A. Governmental Functions

Government entities are immune from tort liability under the doctrine of sovereign 

immunity unless the legislature has specifically waived immunity. Harris County v. Dillard,

883 S.W.2d 166, 168 (Tex. 1994). “A municipality is liable for torts arising from the 

exercise of its proprietary functions, but it is generally immune from suit and liability for 

torts arising from the exercise of its governmental functions.” Tex. Bay Cherry Hill, L.P. 

v. City of Fort Worth, 257 S.W.3d 379, 389 (Tex. App.—Fort Worth 2008, no pet.). Thus, 

determining a municipality's immunity from suit is a two-step inquiry. Id. First, we 

determine whether the function that forms the heart of the suit is governmental or 

proprietary. Id. Then, if the function is governmental, we determine whether immunity 

has been waived. Id. In the first step, we look to legislative definitions of governmental 

actions. For example, the legislature has specifically stated that “[f]or purposes of 

Chapter 101, Civil Practice and Remedies Code, a Type B corporation is a governmental 

unit and the corporation's actions are governmental functions.” See TEX. LOC. GOV'T 

CODE ANN. § 505.106(b) (West, Westlaw through Chapter 46, 2015 R.S.). 

Additionally, section 101.0215 of the Texas Civil Practice and Remedies Code 

contains a non-exclusive list of governmental functions, including running civic centers 

and community development programs pursuant to Chapters 373 and 374 of the Local 

Government Code. TEX. CIV. PRAC. & REM CODE § 101.0215(a)(34) (West, Westlaw 

through Chapter 46, 2015 R.S.); TEX. LOC. GOV'T CODE ANN. §§ 373, 374 (West, Westlaw 

through Chapter 46, 2015 R.S.). Section 373 states that “through a community 

development program, a municipality may conduct work or activities designed to: (1) 

improve the living and economic conditions of persons of low to moderate income; (2) 
6

benefit low or moderate income neighborhoods . . . .” TEX. LOC. GOV'T CODE ANN. § 

373.004 (West, Westlaw through Chapter 46, 2015 R.S.).

B. Waiver of Immunity

If the suit does involve a governmental function, then the second step is to 

determine whether immunity has been waived. Tex. Bay Cherry Hill, L.P., 257 S.W.3d at 

389. One waiver of sovereign immunity is the Tort Claims Act, which allows suits to be 

brought against the government for injuries caused by: 1) the use of publicly-owned 

automobiles; 2) premises defects; and 3) the conditions or use of personal or real 

property. See TEX. CIV. PRAC. & REM CODE § 101.021 (West, Westlaw through Chapter 

46, 2015 R.S.). The Act specifically waives sovereign immunity from two types of premise 

defect claims: a special defect and a regular premise defect. Id. § 101.022 (West, 

Westlaw through Chapter 46, 2015 R.S.). Which defect is involved affects the standard 

of care that will be applicable. See City of Grapevine v. Roberts, 946 S.W.2d 841, 843 

(Tex. 1997).

Special defects are limited to suits involving “excavations or obstructions on

highways, roads, or streets” but implicate a higher standard of care then regular premise 

defect claims. See id. § 101.021. Special defects are usually the kind associated with 

the road itself. See Roberts, 946 S.W.2d at 843. To determine if a defect is special, 

courts should look to factors such as the size, nature, location, and permanence of the 

condition. See City of Austin v. Rangel, 184 S.W.3d 377, 383 (Tex. App.—Austin 2006, 

no pet.). However, even when courts have found special defects that are not on the road 

itself, they additionally find that the defects must still affect ordinary users of the sidewalk. 

See Roberts, 946 S.W.2d at 843; City of El Paso v. Chacon, 148 S.W.3d 417, 422–23 
7

(Tex. App.—El Paso 2004, pet. denied); see also Payne, 838 S.W.2d at 239 (holding that 

a culvert was not a special defect because pedestrians walking up and down the sidewalk 

normally would not come across the culvert; only pedestrians who walked perpendicular 

to the sidewalk would encounter the alleged defect). If the defect is special, then the 

landowner is required to use ordinary care to reduce unreasonable risks of harm created 

by conditions that the landowner was, or reasonably should have been, aware of. See 

Roberts, 946 S.W.2d at 843

In contrast, a regular premise defect is any defect not classified as special. See 

id. In a regular premise defect case, the plaintiff must plead: 

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

licensee; 2) the owner actually knew of the condition; 3) the licensee did not 

actually know of the condition; 4) the owner failed to exercise ordinary care 

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

proximate cause of the injury to the licensee. 

State Dep’t of Highways & Pub. Transp. v. Payne, 838 S.W.2d 235, 237 (Tex. 1992). This 

requires the landowner to actually be aware of the allegedly dangerous condition; with a 

special defect, a landowner may still be liable if he should have been reasonable aware 

of the allegedly dangerous condition. The plaintiff must raise a genuine issue of material

fact on each of the five elements of a regular premises defect claim. See Payne, 838 

S.W.2d at 237.

One element is that the premise owner actually knew of the dangerous condition. 

Id. Actual knowledge is knowing of an existing dangerous condition at the time of the 

accident, not merely knowing that a dangerous condition could possibly develop over 

time. See Reyes v. City of Laredo, 335 S.W.3d 605, 608 (Tex. 2010) (per curiam); City 

of Dallas v. Prado, 373 S.W.3d 848, 854 (Tex. App.—Dallas 2012, no pet.). Although the 
8

absence of reports is just one factor to consider when determining whether a premises 

owner had actual knowledge of a dangerous condition, “courts generally consider whether 

the premises owner has received reports of prior injuries or reports of the potential danger 

presented by the condition.” Univ. of Tex.-Pan Am. v. Aguilar, 251 S.W.3d 511, 513 (Tex. 

2008) (per curiam); see State ex rel. State Dept. of Highways & Pub. Transp. v. Gonzalez, 

82 S.W.3d 322, 330 (Tex. 2002) (holding that the State had no actual knowledge of the 

dangerous condition because the plaintiff “did not introduce any evidence showing that 

anyone had reported” the dangerous condition to the State). Circumstantial evidence can 

establish actual knowledge but “only when it ‘either directly or by reasonable inference’ 

supports that conclusion. City of Corsicana v. Stewart, 249 S.W.3d 412, 415 (Tex. 2008) 

(citing State v. Gonzalez, 82 S.W.3d 322, 330 (Tex. 2002)).

If the plaintiff does not raise a genuine issue of fact on each element, the plea to 

the jurisdiction should be granted. See Miranda, 133 S.W.3d at 228. Unchallenged 

hearsay can be used to raise issues of fact, but inadmissible hearsay that has been 

properly objected to cannot be used to raise a genuine issue of material fact. See TEX.

R. EVID. 802; Youngstown Sheet & Tube Co. v. Penn, 363 S.W.2d 230, 233 (Tex. 1962); 

Stovall & Associates, P.C. v. Hibbs Fin. Ctr., Ltd., 409 S.W.3d 790, 796 (Tex. App.—

Dallas 2013, no pet.); Patterson v. Mobiloil Fed. Credit Union, 890 S.W.2d 551, 555 (Tex. 

App.—Beaumont 1994, no writ).

However, these waivers do not apply to claims based on discretionary acts of the 

government. TEX. CIV. PRAC. & REM CODE ANN. § 101.056. This is an exception to the 

exception; even if a claimant raises a genuine issue of material fact on every element of 

the premise defect claim, the governmental entity has not waived its immunity to suit if 
9

the act or failure to act was discretionary. See id. Whether an act is discretionary is a 

question of law. State v. Miguel, 2 S.W.3d 249, 251 (Tex.1999) (per curiam). An act that 

requires the exercise of judgment is discretionary. City of Dallas v. Hughes, 344 S.W.3d 

549, 556 (Tex. App.—Dallas 2011, no pet.). The government may be liable if the law 

“mandate[s] performance with such precision that nothing is left to discretion or 

judgment.” Id. But design decisions are considered discretionary acts. See Mogayzel v. 

Texas Dept. of Transp., 66 S.W.3d 459, 465 (Tex. App.—Fort Worth 2001, pet. denied) 

(holding that the design of the highways is discretionary); City of Watauga v. Taylor, 752 

S.W.2d 199, 202 (Tex. App.—Fort Worth 1988, no writ) (finding that the design of sewers 

and drains is discretionary); see also City Of McAllen v. Hernandez, No. 13-04-00182-

CV, 2005 WL 2000818, at *5 (Tex. App.—Corpus Christi Aug. 22, 2005, pet. denied) 

(mem. op.) (observing that the design of the lid covering a drainage box near the sidewalk 

was discretionary).

This Court has held that the “decision of a governing body to choose one design 

over another is the essence of the exercise of discretion.” Sanchez v. Matagorda County, 

124 S.W.3d 350, 353 (Tex. App.—Corpus Christi 2003, no pet.). “This distinction is often 

stated in terms of actions taken at the planning or policy-making level, which are immune, 

and actions taken at the subordinate or operational level, which are not immune.” Mitchell 

v. City of Dallas, 855 S.W.2d 741, 745 (Tex. App.—Dallas 1993), aff'd, 870 S.W.2d 21, 

22 (Tex. 1994); McKinney v. City of Gainesville, 814 S.W.2d 862, 866 (Tex. App.—Fort 

Worth 1991, no writ).

For example, in Hernandez, the plaintiff walked over a drainage box, and the shopmade lid tilted, causing the plaintiff to seriously injure her legs. 2005 WL 2000818, at *1. 
10

The plaintiff claimed that the city had violated its own engineering code in designing this 

lid and thus the city had waived its immunity in this premise defect suit. Id. However, this 

Court held that the design of the lid was a discretionary act, despite the fact that it violated 

a specific engineering code. See id. at *6. 

Similarly, in Sanchez, the plaintiff sued the county for the design of a bridge. 124 

S.W.3d at 353. The City Commissioner testified that the layout of the bridge “was part of 

the bridge design and was based partially on the increased cost that would have been 

incurred” to build the bridge differently. Id. We held that this was not “a situation where 

a governmental employee negligently performed the task he was ordered to do.” Id. To 

the contrary, we concluded that the decision to design and remodel the bridge by adding 

wooden planks longitudinally was a “discretionary act of a county government.” Id.

On the other hand, maintenance activities undertaken at the operational level are 

not discretionary functions and are not immune from liability. Mitchell, 855 S.W.2d at 745; 

see City of Round Rock v. Smith, 687 S.W.2d 300, 303 (Tex.1985); Taylor, 752 S.W.2d 

at 202; Hamric v. Kansas City S. Ry., 718 S.W.2d 916, 919 (Tex. App.—Beaumont 1986, 

writ ref'd n.r.e.). Thus, a government entity is immune from liability if an injury results from 

the formulation of policy but is not immune from liability if the injury is caused by the 

“negligent implementation of that policy.” Mitchell, 855 S.W.2d at 745; see State v. Terrell, 

588 S.W.2d 784, 787 (Tex.1979).

III. DISCUSSION

In three issues, the City argues that the trial court erred by: 1) denying the City’s 

plea to the jurisdiction; 2) considering Gaspard’s deposition notwithstanding the changes, 

which affected the court’s ruling on the plea to the jurisdiction; and 3) failing to strike the 
11

objectionable portion of Joan’s affidavit, which also affected the court’s ruling on the plea 

to the jurisdiction. We will consider these three issues as one because issues two and 

three are sub-issues of issue one. We conclude that the trial court erred in denying the 

City’s plea to the jurisdiction because Gaspard fails to raise a genuine issue of fact on 

every element of her premise defect claim. Furthermore, Gaspard’s suit arose out of a 

discretionary government function. As such, the City had not waived its sovereign 

immunity to this type of suit, and the trial court had no jurisdiction to hear this case. There 

is nothing that Gaspard could plead to change these jurisdictional facts; therefore, the 

case should be dismissed without an opportunity to amend.

A. The Underlying Action Was Governmental

The City argues that its plea to the jurisdiction should have been granted. The first 

step in determining the City’s immunity from liability is determining whether the underlying 

action is governmental or proprietary. Tex. Bay Cherry Hill, 257 S.W.3d at 389. The City 

asserts that Gaspard’s claims arise out of a governmental function because: 1) the 

Building is used by the Bay City Community Development Corporation (BCCDC), the 

City’s 4B sales tax corporation; and 2) the BCCDC is engaged in activities on the 

enumerated list of government functions in the Torts Claim Act. The City asserts, and 

Gaspard does not refute the claim, that the BCCDC is the City’s 4B sales tax corporation. 

Therefore, the decision to design and build the steps and the glass porch was an action 

of the City’s 4B sales tax corporation, which is legislatively defined to be a governmental 

function. TEX. LOC. GOV'T CODE ANN. § 505.106(b) (West, Westlaw through Chapter 46,

2015 R.S.).
12

Furthermore, the Tort Claims Act lists programs of community development as 

governmental functions. TEX. CIV. PRAC. & REM CODE § 101.0215(a)(34). Community 

development programs conduct work to “improve the living and economic conditions of 

persons of low and moderate income” and to “benefit low or moderate income 

neighborhoods.” TEX. LOC. GOV'T CODE ANN. § 373.004 (West, Westlaw through Chapter 

46, 2015 R.S.). The BCCDC offers low-cost business opportunities for a low-income 

community to encourage economic growth; this fits the definition of a community 

development program as outlined in the Local Government Code. See id. Thus, we 

conclude that Gaspard’s claim arose out of a governmental function.

B. The City Has Not Waived Immunity

Finding that the underlying action is governmental, we next determine if the City’s 

immunity has been waived. Tex. Bay Cherry Hill, 257 S.W.3d at 389. We analyze 

whether there are genuine issues of material fact on every element of the premise defect 

claim such that jurisdiction is affirmatively demonstrated. See Miranda, 133 S.W.3d at 

226; Payne, 838 S.W.2d at 237. Both parties agree that Gaspard’s claim would fall under 

the second waiver found under the Torts Claim Act: a premise defect claim. See TEX.

CIV. PRAC. & REM CODE § 101.021 (West, Westlaw through Chapter 46, 2015 R.S.). 

Gaspard claims that the stairs at issue are a special defect as opposed to a regular 

premise defect. This case involves the design of steps that lead into a building, which 

seemingly has little to do with roadways. Gaspard argues that a defect does not have to 

physically be in the road to be in the road to be considered a special defect. See Rangel, 

184 S.W.3d at 383. This is true, but, as the Rangel case also points out, the defect must 
13

still present an “unexpected and unusual danger to ordinary users of roadways” to be 

considered a special defect. Id. (citing Payne, 838 S.W.2d at 238).

The steps do not meet the general classification of special defects because they 

are not an obstruction or excavation of the road itself. Furthermore, the threshold of the 

Building does not pose an unusual danger to ordinary users of the sidewalk because the 

alleged defect would only affect people who are specifically entering or exiting the 

Building. In other words, only a pedestrian “whose destination required him to leave the 

proximity of the road” would encounter the alleged defect. See Payne, 838 S.W.2d at 

239. Therefore, the steps are properly classified as a regular premise defect claim. To 

survive a plea to the jurisdiction on a regular premise defect claim, the claimant must be 

able to raise a genuine issue of material fact on the five elements listed in Payne. 838

S.W.2d at 237

i. Genuine Issues of Material Fact

The City asserts that there are no genuine issues of material fact on at least two 

of the elements of a regular defect claim: 1) that the City had actual knowledge of the 

alleged defect and 2) that Gaspard had no knowledge of the defect. Id. All the City 

employees testified that they never received any complaints about the steps over the last 

two decades since the steps were built.2 This shows that the City had no actual 

knowledge of the allegedly dangerous condition. See Aguilar, 251 S.W.3d at 513; 

 

2 Karen Hitzfield testified that she had worked for BCCDC at the Building since 1998. Since that 

time, she testified that she had never seen or heard anybody fall or injure themselves at the front entrance 

steps. Rhonda Clegg, the City Secretary and custodian of the official records of the City, filed an affidavit 

stating that after searching the official records, she found no records of any complaints, e-mails, or reports 

of injury involving the Building or its steps. Hendrickson testified that for the last 20 years, he thought the 

front entrance was safe, even though the design was “unusual,” especially since nobody had been injured 

on it or ever complained about it.
14

Gonzalez, 82 S.W.3d at 330. The only other evidence in the record that might indicate 

that the City actually knew about the alleged dangerous condition was the affidavit from 

Joan Gaspard. 3 The City objected to Joan’s affidavit as hearsay, to which Gaspard 

retorted that it was an admission by a party-opponent. See TEX. R. EVID. 801(e)(2)(D). 

However, the BCCDC not only houses City employees but also houses the offices of 

numerous other non-governmental companies. Joan’s affidavit does not properly show 

that the declarant was an agent of the City, as opposed to an employee of the other 

companies, to be admitted as a party opponent. See Farlow v. Harris Methodist Fort 

Worth Hosp., 284 S.W.3d 903, 928 (Tex. App.—Fort Worth 2009, pet. denied) (finding 

that the testimony of a witness who assumed that a woman was a city employee was 

inadmissible hearsay because there was no evidence that the alleged declarant was 

actually a city employee); see also Trencor, Inc. v. Cornech Mach. Co., 115 S.W.3d 145, 

151 (Tex. App.—Fort Worth 2003, pet. denied) (holding that agency must be shown; it 

cannot be presumed).

Without any applicable exceptions, Joan’s affidavit is inadmissible hearsay. See 

TEX. R. EVID. 802. Allegations that someone in the Building knew about the allegedly 

dangerous condition does not allow us to presume that person to be a City employee. 

See Trencor, 115 S.W.3d at 151. Agency cannot be presumed on this mystery declarant. 

Id. We conclude that there is nothing left to raise a genuine issue of fact regarding the 

 

3 Appellee additionally argues that by adopting a building code and by building the steps the City 

had knowledge of the allegedly dangerous condition. Hendrickson testified that, at the time the steps were 

designed and built, he thought the steps were safe and in compliance with the building code, which 

authorized the building director to approve alternative methods if they were safe. This shows that the City, 

rather than having actual knowledge of a dangerous condition, actually thought there was no dangerous 

condition. Simply building the steps does not reasonably support an inference that the City had actual 

knowledge. See City of Corsicana v. Stewart, 249 S.W.3d 412, 415 (Tex. 2008) (holding that circumstantial 

evidence establishes actual knowledge only if it supports that conclusion “either directly or through 

reasonable inference”).
15

City’s actual knowledge of the allegedly dangerous condition because inadmissible 

hearsay that was properly objected to cannot be used to raise genuine issues of fact. 

See Penn, 363 S.W.2d at 233; Stovall, 409 S.W.3d at; Patterson, 890 S.W.2d at 555.

Another element Gaspard must allege is that she had no knowledge of the 

dangerous condition. See Payne, 838 S.W.2d at 237. The City raised concerns regarding 

the evidence on whether Gaspard was aware of the defect. During Gaspard’s deposition, 

the City asked a question about whether Gaspard felt that she had ever noticed anything 

dangerous about the steps. To this, Gaspard originally replied, “Yes, I’ve always felt like 

it was dangerous and usually held onto the door to get out.” For “clarification” purposes, 

Gaspard later amended her answer after the deposition to simply say, “No.”

The City followed up by asking, “Why did you feel like it was dangerous?” To this, 

Gaspard originally stated, “Because the way it’s constructed.” Again for “clarification” 

purposes, Gaspard changed her answer after the deposition to read, “I didn’t understand 

the question.” Later in the deposition, Gaspard’s own attorney asked her on direct 

examination, “[P]rior to the accident did you have any reason to believe those steps were 

particularly or uniquely dangerous as against other steps.” Gaspard answered, “Well, 

they were narrow; and I was always careful when I came up.” Gaspard’s amended 

answer was changed, once again for “clarification,” to say, “Prior to the Oct. 30, 2012 fall 

I was careful about using any steps. I preferred ramps.”

The City argues that this is evidence of a sham affidavit. It cites Farroux v. Denny’s 

Restaurants, Inc. in support of this position. 962 S.W.2d 108, 111 (Tex. App.—Houston

[1st Dist.] 1997, no pet.). Farroux states if a change in a deposition goes to a material 

point, without explanation, and clearly contradicts earlier testimony, then it is a “sham” 
16

affidavit that should be disregarded. Id. However, our Court doesn’t generally recognize 

the sham affidavit doctrine. Del Mar Coll. Dist. v. Vela, 218 S.W.3d 856, 862 (Tex. App.—

Corpus Christi 2007, no pet.). If the deposition testimony is contradictory, then it presents 

a genuine issue of fact. Id. The contradictory nature would merely affect the weight this 

testimony would be given. Id.

However, even considering Gaspard’s deposition testimony, we conclude that the 

facts alleged by Gaspard do not affirmatively show that the trial court had jurisdiction to 

hear this case. As pled, the facts affirmatively demonstrate a lack of jurisdiction because 

the underlying action was a discretionary governmental action performed by a 4B sales 

tax corporation carrying out a community development program; furthermore, Gaspard 

has not raised genuine issues of fact as to the City’s actual knowledge of the allegedly 

dangerous condition. Therefore, Gaspard failed to demonstrate that the City has waived 

its immunity under the Torts Claims Act.

ii. Discretionary Acts

However, assuming without deciding that Gaspard did raise a genuine issue of 

material fact on every element of the premise defect claim, a government entity is still 

immune from tort liability for its discretionary actions, even if the underlying actions 

constituted a waiver of immunity under the Torts Claims Act. See TEX. CIV. PRAC. & REM 

CODE ANN. § 101.021. Gaspard argues that the City’s actions in remodeling the Building 

and constructing the glass porch were not discretionary since the city’s building code 

dictates how to design steps leading out of a building. Specifically, the act was not 

discretionary because the Code provides that there should be a landing level with the 

floor outside the door of a building before any steps lead to the ground. However, we 
17

agree with the City that its actions in designing the glass porch and door threshold were 

discretionary. In Hernandez and Sanchez, discussed above, this Court has previously 

held that the governmental act of deciding to design a structure in a particular way is 

immune from tort liability. See Hernandez, 2005 WL 2000818, at *5; Sanchez, 124 

S.W.3d at 353. The same is true here: Hendrickson stated that he designed the glass 

porch this way because of a “cost consideration” to the City, just like the city official in 

Sanchez. See 124 S.W.3d at 353.

Additionally, according to Hendrickson, if the steps were built as specified in the 

1988 code, the door threshold would be too close to the roadway. Section 102.6 of the 

1988 code specifically authorizes alternative designs and methods of construction “not 

specifically prescribed by the Code, provided any such alternative has been approved by 

the Building Official.” (emphasis added). Hendrickson approved the alternative in this 

case and testified that he believed this alternate design was safe; he further testified that 

at the time the glass porch was made, “it appeared that was the only way we could do it.”

This case is distinguished from other scenarios in which the government might be 

liable. The City did not choose an unsafe design, knowing it was unsafe or knowing it 

was violating a code. Rather, Hendrickson believed that the expansion was safe and built 

in compliance with the 1988 edition of the Southern Building Code in effect at the time.4 

The city did not have a safe design plan that was negligently built. Id. Rather, the City 

considered the safety and cost of all alternatives and then built the steps as intended, in 

 

4 Gaspard argues that the City is mandated by the State to adopt and adhere to a building code; 

therefore, the construction of steps could not be discretionary. However, the building code in place at the 

time was the 1988 locally-adopted building code. The first statewide, mandatory municipal building code 

was not enacted until 2006. See TEX. LOC. GOV'T CODE ANN. § 214.216 (West, Westlaw through Chapter 

46, 2015 R.S.). Thus, there was no state-mandated method to build the stairs at the time the glass porch

was built. 
18

good condition. The City’s decision to choose one design over another is the “essence 

of discretion.” Id. We conclude that the City’s design of the steps was a discretionary act 

protected against liability. Furthermore, there is nothing Gaspard could amend in her 

pleadings to bestow jurisdiction; thus, the case should be outright dismissed instead of 

allowing for further amendment of the petition. See Peek, 779 S.W.2d at 804.

We sustain the City’s sole issue.

IV. CONCLUSION

We reverse the decision of the trial court, render judgment granting the City’s plea 

to the jurisdiction, and dismiss the case with prejudice.

NORA LONGORIA,

Justice

Delivered and filed the

13th day of August, 2015.