*1
develop the merits of his or her
testifying
hearing
tunity
from
at a recusal
before
case”).
judge
has not
a biased trial
judge
another
trial before
directly
subject
decided. The rule does not
to a harm
been
is structural error
appear
(citing
to be so broad and seems to be
at 7
Neder v.
analysis.
United
1833,
States,
1,
1827,
actu
judge
limited to situations which
527 U.S.
S.Ct.
(1999)).
ally
testify
the bench to
at a trial
leaves
(trial judge’s testimony from a recusal
hearing should not have been admitted trial));
into Kemp evidence see also
State,
(“In
305 n. 9
Hen
State,
(Tex.Crim.
sarling
trial would from down LAMAS, Appellee. Francisco very the bench’ to become in the a witness No. 03-04-00034-CV. proceeding currently same he is which presiding.”). Texas, Appeals Court Austin. adequate remedy by
Relator has no ap peal testimony instance because the Dec. judge trial whose recusal she seeks 10, 2005. Rehearing Overruled March will not be available at a trial. See De Aguilar, Leon v.
Crim.App.2004) (orig.proceeding) (“party
seeking mandamus relief ‘must establish oppor
the effective denial of a reasonable Packer, remedy by appeal the civil context a is Walker v. (1) Here, inadequate discovery (Tex. 1992). Judge when error cannot refusal if Walker’s cured, (2) ability present error, cured; claim viable Relator's abili it cannot be (3) severely compromised, or or defense is ty present motion evidence on her recusal missing discovery part cannot be made completely compromised, and will have been appellate reviewing court is record so that the missing testimony part cannot be made to evaluate the effect of the trial unable appeal. the record for court's error on the record before it. See *2 Sanders, City Atty., for
Robin E. Asst. appellant. Picard, Mey- Meyerson,
Trey D. Jeff M. Firm, P.C., Austin, appellee. erson Law LAW, claims that the signs. Justices Neither Before Chief Justice actual notice of the condition of PATTERSON PURYEAR. stop sign.
OPINION injury action brought personal Lamas *3 City plea filed a against City.1 the The LAW, KENNETH Chief Justice. W. grounds that sover- jurisdiction the on the case, In this we examine a City from tort eign immunity barred the liability the Tort Act unit’s under Claims liability the Texas Tort Act. Claims stop sign. of the condition of a City’s plea trial denied the After the court allegedly city a ran tort occurred when bus jurisdiction, City brought this to the the stop sign by that was obscured tree Prac. interlocutory appeal. See Tex. Civ. City argues branches. The of Austin that 51.014(8)(West 2004); §Ann. & Rem.Code immunity liability un- sovereign bars tort County Sykes, Harris v. 136 S.W.3d sign’s less it had actual notice of the traffic (Tex.2004). 638 condition. See Tex. Civ. Prac. & Rem. 1997). 101.060(a)(2) (West Ann. Code DISCUSSION plead Because Lamas did not issue, City appeals In the the its sole discovery and because revealed that the juris- plea trial court’s denial of its to the City did not have actual notice of the diction, arguing City condition of the the asserted bars Lamas’s cause of action because it did jurisdiction. lacked The not have actual notice of the condition City’s district court denied plea to the sign. See Tex. Civ. Prac. & Rem.Code jurisdiction. For the reasons stated be- §Ann. low, affirm the district court’s denial of City’s plea jurisdiction. to the jurisdiction pleaA to the is a
dilatory that seeks dismissal of a case plea BACKGROUND subject-matter jurisdiction. lack of Blue, August Indep. Francisco Lamas was a Bland Sch. Dist. v. 34 S.W.3d (Tex.2000). passenger Subject-matter juris operat- aboard bus and 554 owned by Capital Metropolitan Transportation authority ed diction is essential to the of a Authority Orange- Austin. As the court to a case. ap- bus decide See West Alanis, proached Tillery intersection of and Cove Consol. I.S.D. v. 107 S.W.3d St. Austin, (Tex.2003); Mayhew Goodwin St. the driver failed to 587 v. Town of stop sign observe a allegedly Sunnyvale, 964 S.W.2d 1998). by foliage. subject-matter jurisdiction obscured not driver did Because intersection, law, stop presents at the ran and bus we review dip slowing. over a the street without district court’s decision de novo. See result, 928; As a Lamas Mayhew, claims he sus- Texas State injuries being Employees tained serious after thrown Local v. Tex Union/CWA Comm’n, during stop into the air the incident. The as Workforce alleged foliage (Tex.App.-Austin, and the were located in Govern easement, a trial City-controlled immunity and the is mental from suit defeats may raised responsible jurisdiction for the maintenance of traffic court’s and so have been settled. Capital 1. Lamas also sued Metro and the First owner—but those claims Assembly Latin American third land —a plea meaning to the construe Harris case—we must 638; v. County Sykes, appears “notice” as it Jones, Dep’t Transp. (Tex.1999). trial Determining legislative intent jurisdiction, ruling court’s on a to the statutory overriding goal interpretation. ease; we do look at the merits of Downs, Cas. Continental Co. rather, pleadings we construe the in favor 803, In order to ascertain intent, plaintiff, pleader’s look intent, legislative look we first accept and factual pleadings’ allega meaning common of words used as tions true. Texas Ass’n Bus. v. Ann. legislature. Tex. Gov’t Code Bd., Texas Air Control (West 1998); Kroger 311.011 Co. *4 (Tex.1993). jurisdictional A challenge 443 347, (Tex.2000); Tex- Keng, 23 S.W.3d 349 may implicate the plaintiffs the merits of Texas Comp. as Comm’n v. Workers’ Dep’t of cause action. See Texas Parks Co., 902, 994 908 of Builders Ins. S.W.2d Miranda, 217, & v. 133 S.W.3d denied). 1999, pet. Un- (Tex.App.-Austin Wildlife (Tex.2004). 227 If raises a fact evidence ambiguous, less a statute is courts abide concerning jurisdiction, issue the it court’s the language the clear statute inappropriate would be for the court to RepublicBank Dal- enforce as written. to Id las, Interkal, Inc., v. 691 N.A. S.W.2d 227-28. (Tex.1985). 607 by considering interpreted Statutes are expressly Act The Tort Claims statute, just provi disputed the entire not “injuries waives for Ag Hosp. v. Episcopal sions. St. Luke’s arising proper out of or use of conditions (Tex.1997); bor, 503, 514 952 S.W.2d 225; ty.” County Id. at Cameron v. 473, 481 Cornyn, 71 S.W.3d Thomas (Tex.2002) Brown, 549, 554 Disputed (Tex.App.-Austin pet.). no Able, Transp. v. (quoting Dep’t 35 context, provisions are to in considered (Tex.2000)); Texas Dep’t S.W.3d Fitzgerald v. Ad not in isolation. See Garza, Transp. v. Sys., Spine vanced Fixation (Tex.2002) (section exception is to 101.060 presume are to in general immunity waiver used every has been word in a statute 101.021); Tex. Civ. Prac. & see Rem.Code word, phrase, for and that each purpose (West 1997). §Ann. in 101.021 cases ef clause, given should be and sentence volving condition of a traffic Shumake, 66, 75 fect. State expressly Tort Act immuni Claims waives pet.); see State no (Tex.App.-Austin governmental ty for units when the tort Good Samaritan Evangelical Lutheran of a special arises from a failure to warn (Tex.App.-Aus Soc’y, long requisite defect so as notice stan tin dard is section 101.060. satisfied under general Prac. legislature See Tex. & Rem.Code Ann. created Civ. (West 1997), duty §§ defects in section premises 101.022 .060. Section owed for 101.060(a)(2) unit a claim government “notice” of a owes specifies that 101.022. private person required duty traffic to ant sign condition of a private property. § on liability. Be to a licensee impose owes Ann. Tex. & Rem.Code City argues cause the statute Civ. Prac. (West 1997). 101.022(a) Thus, actual § showing of “actual notice”— requires a knowl- City knowledge in rather than constructive which neither asserts general limitation on the edge dangerous required. exception of a condition is Tennison, State v. duty premise to warn of defects subsec- (Tex.1974). However, the limitation of (a) provision by creating specific tion 101.022(a) duty contained does (b). to defects in subsection relating special duty apply special warn creating exception, § 101.022. defects, including duty warn directly contemplated ex- legislature sign required condition of a traffic “as is defects, including stop empting special by section 101.060.” Tex. Civ. Prac. & an signs, from actual notice standard. 101.022(b). § Rem.Code Ann. Nonetheless, decided the removal or destruction of a road Instead, a municipality is liable fall should still under the “personal injury and death caused id. tangible personal requirement. condition or use of or property However, real if the unit would, it a private person, were be liable to impose a different level of notice chose according the claimant to Texas law.” Id. absence, for the § 101.021. In particular, section 101.060 condition, sign. malfunction of a road or signs, signals, addresses traffic and warn Although See id. *5 ing § Id. devices. 101.060.The would have us read “notice” in subsection expressed has requirement notice dif (a)(2) notice,” to “actual re- mean we will 101.060(a)(2) ferently in than in subsection spect legislature’s enacting choice in (a)(3). A governmental Id. unit has immu differently governing two clauses worded nity a from tort that arises from “the in requirement liability the notice for tort absence, condition, or a malfunction of section 101.060. sign, traffic or road signal, warning or absence, condition, support find for our conclusion from device unless the or by malfunction is not other courts that examined respon appellate corrected have governmental sible unit within a reason procedural in contexts this issue different able time after 101.060(a)(2) notice.”2 Id. and concluded that section 101.060(a)(2). contrast, In if the tort In require does not actual notice. Robnett arises from the removal or a destruction of City Big Spring, example, a trial of sign, traffic governmental unit will granted summary-judgment court a motion subject liability if there is a city on in based showing of “actual notice.” Id. dispute city’s a failure to maintain over 101.060(a)(3). stop sign allegedly by a obstructed an elm (TexApp.- tree. in
After section 101.060 The Eastland Eastland Act, the context of the Tort Claims (a)(2) court reversed. Id. Evidence introduced conclude subsection does not 101.022, through affidavits in Robnett indicated that require actual notice. In section legislature specifically prior carved out an there had accidents due to the been stop sign’s 2. A obstruction from view fo held that the terms the Tort The court of liage sign applied a of "condition” of that within the Claims Act in that case instead 101.060(a)(2). meaning city provisions. Long of section charter Id. The Mission's Mission, court did not hold that section 101.060 re of notice; instead, 1982). Long, supreme quires a court reversed actual it held that summary judgment plain pleading actual notice was sufficient to when the pleaded summary judgment. tiff had a former overcome a motion for under version of section Id. at 701. police days that the officer on vandalized times in the seventeen obstructed six personally knew tree in prior the scene that the accident. 24 537- and, 2000), rev’d, problem, according was a 540 (Tex.App.-Corpus Christi judge, “everyone the trial town” The Cor- knew about the intersection. Id. at 537. pus Christi differentiated “actual no- court governmental that for im- The court held tice” in from section “notice” waived munity to be under section State 101.060(a)(2), unit must reason, had no normal circum- either have known or should have known stances, the destruction or anticipate within a time the condition reasonable removal of under section sign vandals notice. Id. at 538. court then after The 101.060(a)(3), might whereas State 101.022(a) that the section limita- reasoned anticipate have know of or reason to actual no- premises tion on defects—that general faulty condition malfunction or govern special tice be shown—does contemplated traffic section device as that, defects under 101.060and wanted to actual require supreme court overturned Cor- (a)(2) requires notice in subsection as it pus Christi because under decision (a)(3), it “certainly then knew subsection destroy” or reading the words “remove provide, but not.” Id. to so did how proper- stop vandalism of the Thwm, Kenneally Antonio the San 101.060(a)(3); thus, ly governed by section photographs considered showed Gonzalez, actual applied. notice scraggly, untrimmed bushes located on the , It the San Anto- did not overrule city unimproved portion of street ease- nio court’s reading allegedly a traf- ment that had obstructed *6 that, Instead, it decided long fic for as as a remem- resident case, the facts of section (Tex.App.- bered. 653 S.W.2d 71-72 subsection, by its applied express that and n.r.e.). San Antonio writ refd Evi- terms, notice, actual which was requires police dence also showed officers missing in case. id. at 328-329. See passed through intersection several at 72. light times a month. of this After these deci- carefully evidence, Antonio the San court overruled sions, in- we believe that summary judg- the trial court’s only in notice require tended actual municipality, holding for the ment expressly It chose section “sufficient evidence to raise a there was to use words when crafted different question of fact as to whether the condition lan- Given length time that had existed such 101.060(a)(2) in the con- guage of section City, in the exercise reasonable dili- statute, conclude that text of the whole gence, Id. at should have discovered it.” intended a difference be- added). (emphasis 101.060(a)(2)and tween “notice” in section “actual notice” & Pub- Department Highways In State Shumake, at 75 (indicating See Gonzalez, Transportation Corpus lic pur- been used each word in statute has jury affirmed a verdict Christi court effect). Thus, posely given should against Department of Trans- 101.060(a)(2)does not we hold that section portation in a traffic concerning a case and that district require actual notice accident that occurred an intersection City’s plea stop sign properly had been denied controlled City’s jurisdiction. overrule the We appeal. issue on
CONCLUSION conclude require does not to have pleaded
to be order for a court
jurisdiction to hear this cause of action to the
under the Tort Claims Act. hurdle; procedural there
jurisdiction is
fore, we make no indication of whether satisfy
merits of Lamas’s case will
requisite notice under section 101.060. We denying
affirm the district court’s order City’s plea
Concurring Opinion Justice
Patterson. PATTERSON, Justice, P.
JAN
concurring. judgment only.
I concur in the (concurring P. 47.5 and dis-
Tex.R.App.
senting opinions). *7 Anthony SPLAWN, Appellant,
Chad Texas, Appellee. STATE
No. 06-03-00243-CR. Texas, Appeals
Court of
Texarkana. Sept. 2004.
Submitted
Decided Feb.
Rehearing Overruled March