The Corpus Christi/Edinburg Court of Appeals has reversed a trial court order denying TxDOT’s plea to the jurisdiction in a case arising from a fatal accident involving a motorcycle on SH 361 in Nueces County.
Texas Department of Transportation v. Tanya Simpson, Individually, and as a Representative of the Estate of Floyd Simpson, Deceased and as Next Friend of Jurnee Alexis Simpson, Amber Michele Simpson and Lauren Dior Simpson (No. 13-24-00122-CV; February 19, 2026) arose from a 2015 car wreck in which a motorcyclist was killed when he laid down his bike to avoid an oncoming vehicle in his lane of traffic. The crash report attributed the wreck to the truck driver’s failure to drive in a single lane and fatigue and sleep. Plaintiffs filed suit against TxDOT, asserting that years of flushing the highway had polished it “to the extent that it decreased the coefficient of friction,” and that TxDOT knew of the specific defect and didn’t do anything about it. TxDOT filed a general denial and asserted sovereign immunity. A Nueces county court-at-law denied the plea the plea to the jurisdiction. TxDOT sought interlocutory review.
In an opinion by Justice Peña, the court of appeals reversed and dismissed the case for lack of subject matter jurisdiction. TxDOT argued that Plaintiffs failed to allege special defect and that there was no evidence that TxDOT had actual knowledge of an unreasonably dangerous condition. The court observed that although the Tort Claims Act does not define “special defect,” the statute does liken them to “excavations or obstructions.” § 101.022(b), CPRC. In determining the existence of a special defect, courts look to the size of the condition, whether the condition unexpectedly and physically impairs a car’s ability to travel on the road, whether it presents some unusual quality apart from the ordinary course of events, or whether it presents an unexpected or unusual danger to ordinary users of the roadway.
Photographs taken of the highway where the accident occurred showed signs of flushing (excess binder that exudes upward onto the pavement surface that can lead to loss of skid resistance). But, as the court pointed out, flushing is not in the nature of an excavation or obstruction. It doesn’t make “a hole in the road like an excavation or physically block the road like an obstruction.” Additionally, as another driver who avoided the oncoming truck testified, “the condition of the road did not present an unexpected and unusual danger to them as ordinary drivers of the roadway.” Consequently, the court concluded that “the alleged road condition falls outside the special defect class as a matter of law…. Thus, a licensee standard of care is appropriate in this case, and there must be evidence in the record that TxDOT had actual knowledge of the dangerous condition.”
So did Plaintiffs raise a fact issue that TxDOT had actual knowledge that the flushing posed an unreasonable risk of harm? Because TxDOT challenged the sufficiency of jurisdictional facts, Plaintiffs had the burden of presenting “sufficient evidence on the merits of [their] claims to create a genuine issue of material fact.” Plaintiffs argued that TxDOT didn’t contradict their pleadings, so that was enough to manufacture a fact issue. But, as the court observed, “[Plaintiffs’] pleadings cannot raise a fact issue on actual knowledge.” Plaintiffs offered a news article published after the accident as evidence that TxDOT knew about the slick road, but TxDOT objected to the article as impermissible hearsay and the trial court excluded it with no objection. TxDOT’s deposition witnesses affirmed that it had no actual knowledge either that the roadway was slick or that the road posed an unreasonable risk of harm at the time and place of the crash. Plaintiff responded with TxDOT’s district safety review of crashes on that road in 2013, 2014, and 2015, but that report concluded that traffic congestion, not pavement friction, was the reason for accidents. Because no evidence of actual knowledge existed and the defect was incurable by amendments to Plaintiffs’ pleadings, the court sustained TxDOT’s issue.
Plaintiffs then argued that TxDOT was negligent in failing to place warning signs and rumble strips on the roadway. TxDOT responded that the decision to install certain safety features was a discretionary function for which sovereign immunity is not waived. Plaintiffs countered that since TxDOT’s contractual relationship with the City of Port Aransas for the design, construction, and maintenance of the road imposed a legal duty to provide certain safety features. The court concluded that TxDOT had no duty to implement any specific safety features at all, much less the ones urged by Plaintiffs. And whether safety features are warranted in the first place was a discretionary decision and did not waive immunity. The court reversed the trial court’s order denying TxDOT’s plea to the jurisdiction and dismissed the case.
