In a case we first reported last April, the Texas Supreme Court has reversed a Houston [14th] Court of Appeals holding that § 97.002, CPRC, which protects a road contractor from liability if the contractor performs the work in substantial compliance with TxDOT’s contract documents, requires privity of contract with TxDOT.
Third Coast Services, LLC & SpawGlass Civil Construction, Inc. v. Felicitas Castaneda, Individually and as Representative of the Estate of Pedro Castaneda, Deceased, Irving Castaneda, Evelyn Castaneda & Lizzie Castaneda(No. 23-0848; December 12, 2025) arose from a wrongful death action resulting from a fatality vehicle accident at the intersection of Woodtrace Boulevard and SH 249 in Montgomery County. The area was adjacent to a construction project under an agreement between TxDOT and Montgomery County for a segment of tollroad. The frontage road upon which the accident occurred remained part of the state highway system operated and maintained by TxDOT. In 2018 the county contracted with SpawGlass to serve as the general contractor for the SH 249 tollroad project. SpawGlass contracted with Third Coast to furnish and install electrical components, including traffic signals. At the time of the accident, the signals at the intersection had been installed but not electrified or operational. Instead, the intersection was controlled by the existing stop sign and stop bar on the east and west sides of Woodtrace. The frontage road had no signals, so Woodtrace traffic had to yield to southbound traffic on SH 249.
The decedent was killed when, without stopping at the stop sign, his vehicle was broadsided by a southbound vehicle on the frontage road. Plaintiffs sued SpawGlass and Third Coast for negligence and gross negligence and requested more than $1,000,000 in actual and punitive damages. Defendants moved for summary judgment pursuant to § 97.002, which the trial court denied. The court of appeals affirmed, holding that § 97.002 did not apply because Defendants failed to conclusively establish that they were hired by TxDOT or otherwise contracted with TxDOT for the SH 249 project.” Defendants petitioned for review, which SCOTX granted.
In an opinion by Justice Huddle, SCOTX reversed and remanded to the court of appeals. Defendants argued that the court of appeals erroneously interpreted § 97.002 to require privity of contract between a contractor and TxDOT. The statute, however, reads as follows: “A contractor who constructs or repairs a highway, road, or street for the Texas Department of Transportation is not liable to a claimant for personal injury, property damage, or death arising from the performance of the construction or repair if, at the time of the personal injury, property damage, or death, the contractor is in compliance with contract documents material to the condition of defect that was the proximate cause of the personal injury, property damage, or death.” Defendants asserted that the SH 249 project agreement assigns maintenance of the frontage road to TxDOT, and that the contract documents required Third Coast to erect traffic signals at that intersection. In addition to that, the project required modifications to the frontage road itself, including “grading embankment and drainage structures, pavement markings on the southbound SH 249 frontage road, and paving and riprap for the U-turns for the SH 249 frontage roads.”
Commencing with an analysis of the statute, Justice Huddle explained that § 97.002 “is an affirmative defense—it does not rebut or deny the factual propositions in the plaintiff’s pleading but instead establishes a basis for avoiding the plaintiff’s claim. (internal citations omitted). Thus to obtain summary judgment under [the statute], the contractors must conclusively establish each of the statute’s requirements (citations omitted).” To invoke the statute, a contractor must first show that it “constructs or repairs a highway, road, or street for” TxDOT. Unlike other highway contractor immunity provisions, § 97.002 does not mention contractual privity. Next, the court determined that the contractor’s work was “for” TxDOT. Applying the ordinary meaning of “for,” the court concluded that as used in the statute, “‘for’ encompasses the idea that the result of an identified activity (constructing or repairing a highway, road, or street) will be received, owned, or used by the person the activity is ‘for’ (TxDOT).” Plaintiff argued that Defendants constructed the road for Montgomery County and that the contract documents showed that TxDOT ceded control of the project to the county. The court responded that just because they also constructed a road “for” the county, the statute doesn’t preclude the work being “for” TxDOT as well.
The Court did not accept Defendants’ argument that “because the County Project must meet TxDOT specifications and TxDOT has the right to inspect and approve the plans, any work performed is necessarily work performed ‘for’ TxDOT.” This argument, Justice Huddle wrote, “proves too much….Indeed, under this reading, almost any work performed on a public road or highway could be considered work for TxDOT.” If the Legislature had intended that result, it would have expressly provided for it. Consequently, the court rested its decision on the fact that “the County and TxDOT agreed that TxDOT ultimately would bear responsibility for the operation and maintenance of the project’s frontage roads.” Defendants’ work “was both ‘for’ the County and ‘for’ TxDOT.” The court further rejected Plaintiff’s contention that traffic lights were not a “highway, road, or street,” thus excluding Defendants from § 97.002. Brushing this argument aside, the court ruled that, similar to guard rails, “traffic signals installed along what was to become the frontage roads of the tollway project” are statutorily included because they are “necessary structures related to a public road.” § 221.001(1), Transportation Code.
Finally, the court declined Defendants’ invitation to review the evidence and render judgment on whether they “conclusively established their ‘compliance with contract documents material to the condition or defect that was the proximate cause of the personal injury, property damage, or death.” It remanded that issue to the court of appeals.
As we observed back in April, “[c]ontrary to the court of appeals’ reading, nothing in the statute requires privity of contract with TxDOT, only that a contractor substantially comply with contract documents while working ‘for’ TxDOT. If the Legislature had intended contractors to have privity, Defendants conclude, it could have done so, as it has in other statutes governing contracts between governmental entities and contractors.” This turned out to be the winning argument.
