Dobbins v. Texas Turnpike Authority

• Decision Date: 05 June 1973
• Docket Number: No. 8160,8160
• Citation: 496 S.W.2d 744
• Parties: Gordon DOBBINS, Individually and as Next Friend of Stacy Dobbins, a minor, et al., Appellants, v. TEXAS TURNPIKE AUTHORITY, d/b/a Dallas North Tollway and City of Dallas, Appellees.
• Court: Texas Court of Appeals

Page 744

496 S.W.2d 744

Gordon DOBBINS, Individually and as Next Friend of Stacy Dobbins, a minor, et al., Appellants, v. TEXAS TURNPIKE AUTHORITY, d/b/a Dallas North Tollway and City of Dallas, Appellees.

No. 8160.

Court of Civil Appeals of Texas Texarkana.

June 5, 1973.

Joe N. Boudreaux, Baker, Foreman & Boudreaux, Frank P. Hernandez, Hernandez, Cazorla, Ramirez & Perini, Dallas, for appellants.

D. L. Case, Jackson Walker, Winstead, Cantwell & Miller, Dallas, T . Alex Eastus, City Atty., Dallas, G. Duffield Smith, Jr., Gardere, Porter & DeHay, Dallas, for appellees.

CORNELIUS, Justice.

This is a suit for damages for personal injuries filed by appellants Gordon Dobbins, Individually and as Next Friend of Stacy Dobbins, a Minor, Nancy Dobbins, wife of Gordon Dobbins, and Armando Herrera and wife, Jeanette Herrera, against the Texas Turnpike Authority, d/b/a North Dallas Tollway and the City of Dallas. The injuries were alleged to have been caused by a head-on collision on February 25, 1968, between automobiles driven by Gordon Dobbins and Armando Herrera. Appellants predicated their case against the Turnpike Authority on its alleged negligence in constructing and maintaining a certain exit route for the North Dallas Tollway connected with Harry Hines Boulevard, a city street in Dallas. The action against the City of Dallas was predicated upon allegations that the City failed to place adequate signs warning drivers not to turn off Harry Hines Boulevard onto the North Dallas Tollway and that Harry Hines Boulevard was changed from a two-way street with six traffic lanes prior to the opening of the tollway, to a one-way street after the opening of the tollway, and that the City failed to change the markings on the pavement and the signal lights to reflect such change, and failed to inform the driving public of such change.

The Turnpike Authority filed a plea in abatement asking that the suit be dismissed because the Authority, as an agency of the State, was immune from tort liability. The City of Dallas filed its motion for summary judgment on the basis that the allegations of the petition, if true, constituted only acts of negligence in the performance of governmental functions, and therefore, the City was immune from liability for such acts. The trial court sustained the plea in abatement and granted the City's motion for judgment and appellants have perfected this appeal.

Appellants' point of error 1 contends that the doctrine of governmental immunity does not apply to the Texas Turnpike Authority under the provisions of the Act creating such Authority. Point 2 contends that such immunity should not be applied to the Authority because the State could not be compelled to respond in damages if appellants recovered judgment against the Authority. Points of error 3 and 4 urge that the doctrine of governmental immunity should be abolished or should not be applied to the Authority or the City of Dallas under the circumstances of this case, because said doctrine is fundamentally unfair and unjust.

The collision involved here occurred prior to the enactment of the Texas Tort Claims Act (Art. 6252--19, Tex.Rev.Civ.St.) and such Act is therefore not applicable here in any event.

The Texas Turnpike Authority was created by the Texas Legislature in 1953 by enactment of Article 6674v Tex.Rev.Civ.Stat.Ann. It provides generally for the creation of the Texas Turnpike Authority and authorizes it to construct, maintain, repair and operate turnpike projects and to issue turnpike bonds to finance such activities. The Act provides that, 'The Authority is hereby constituted an agency of the State of Texas, and the exercise by the Authority of the power conferred by this Act in the construction, operation, and maintenance of turnpike projects shall be deemed and held to be an essential governmental function of the State.' The members of the State Highway Commission, together with six persons appointed by the Governor, serve as directors of the Authority.

Other provisions of the Act bearing on the questions before us are: Bonds issued by the Authority shall not constitute debts of the State or any subdivision thereof, nor shall they pledge the faith and credit of the State but shall be payable solely out of revenues from the Authority's activities; the Authority may not incur financial obligations which cannot be serviced from tolls or revenues; the Authority shall adopt by-laws for its regulation; it may sue and be sued; it may fix and adjust tolls as charges for transit over its projects; it may acquire, hold and dispose of real and personal property; it shall have the right of condemnation over public and private property; it may remove public roads when necessary and replace them with better facilities, paying all resulting damages or expenses; it may enter upon lands and premises to conduct surveys, making reimbursement for actual damages to such premises; it may take title to property in its own name; it may issue revenue bonds to pay the costs of its projects, using the proceeds solely to pay such costs, which bonds must be approved by the Attorney General; and it shall pay the cost of maintaining, repairing and operating such projects from the tolls collected.

The Act further provides that the exercise of the powers granted by the Act will be in all respects '. . . for the benefit of the people of this State, for the increase of their commerce and prosperity, and for the improvement of their health and living conditions, and as the operation and maintenance of the turnpike projects . . . will constitute the performance of essential governmental functions, the Authority will not be required to pay any taxes . . . upon any project . . . or property . . . or upon the income therefrom . . . and the bonds . . . and the income therefrom . . . shall at all times be free from taxation within the State.' The Act further provides that the Authority is directed to receive for the State, as a part of the free highway system thereof, any toll road operated by a toll road corporation, and after all project bonds have been paid, all projects shall become part of the state highway system and shall be operated by the State Highway Commission free of tolls. It is further provided that all private property damaged in carrying out the powers of the Act shall be restored or repaired and adequate compensation made therefor out of funds provided by the Act.

The exact question presented to us here concerning the Turnpike Authority's right to governmental immunity from tort liability has not been passed upon in Texas. The question of governmental immunity for similar agencies, whether immunity from suit without consent, or immunity from tort liability even if consent has been acquired, has been passed on in several other states, and there is a clear division of opinion as to whether, for purposes of governmental immunity, such bodies are in fact 'agencies of the State.' The...