No-Privity Requirement and Broad “Highway” Scope Under Texas Civil Practice & Remedies Code § 97.002

No-Privity Requirement and Broad “Highway” Scope Under Texas Civil Practice & Remedies Code § 97.002

I. Case Overview and Context

A. Parties and Procedural Posture

The case Third Coast Services, LLC and SpawGlass Civil Construction, Inc. v. Castaneda arises from a fatal automobile collision at an intersection along State Highway 249 (“SH 249”) in Montgomery County, Texas. The decedent, Pedro Castaneda, died after two vehicles collided with his truck at an intersection under construction where new traffic signals had been installed but were not yet operational.

The plaintiffs (Respondents) are:

  • Felicitas Castaneda, individually and as representative of Pedro Castaneda’s estate,
  • and the Castaneda children (Irving, Evelyn, and Lizzie).

The defendants/petitioners are:

  • SpawGlass Civil Construction, Inc. – the general contractor on the “County Project” portion of the toll-road development; and
  • Third Coast Services, LLC – a subcontractor retained by SpawGlass to perform electrical and traffic-signal work.

The plaintiffs sued over alleged negligence related to traffic control and signalization at the intersection. SpawGlass and Third Coast sought summary judgment based on the liability shield in Texas Civil Practice & Remedies Code § 97.002, which can immunize contractors who construct or repair highways “for” the Texas Department of Transportation (“TxDOT”), provided certain conditions are met.

The trial court denied summary judgment. The contractors pursued an interlocutory appeal under Civil Practice and Remedies Code § 51.014(a)(17), which specifically allows appeals from orders granting or denying summary judgment motions based on § 97.002. The Fourteenth Court of Appeals (Houston) affirmed, holding that § 97.002 applies only to contractors directly hired by TxDOT (i.e., in contractual privity with TxDOT), which these contractors were not.

The Supreme Court of Texas granted review and, in an opinion by Justice Huddle (Justice Lehrmann not participating), reversed and remanded.

B. Core Legal Issues

The opinion addresses three principal legal questions:

  1. Privity / “For TxDOT” Issue: Does § 97.002 protect only those contractors who are in direct contractual privity with TxDOT (i.e., hired by TxDOT), or can it also protect contractors and subcontractors working under agreements with other public entities (such as a county) where the work is nonetheless “for” TxDOT?
  2. Scope of “Highway, Road, or Street”: Does § 97.002 cover work on traffic signals and related electrical components—i.e., are such installations part of the “construction or repair of a highway, road, or street” within the meaning of the statute?
  3. Remaining Statutory Elements: Did the contractors conclusively prove that they were in compliance with contract documents “material to the condition or defect” alleged to have proximately caused the accident—a factual question left unresolved by the court of appeals?

C. Factual and Contractual Background

The collision occurred at an intersection where:

  • The intersection and surrounding area were under active construction as part of a larger SH 249 toll-road project.
  • Traffic lights had been installed but were not yet in operation.
  • A stop sign controlled the intersection while the signals were inactive.

The police report attributed fault primarily to Castaneda’s alleged failure to yield the right of way. The plaintiffs, however, alleged negligent project planning and traffic control, including issues about whether the non-operational signal heads were properly covered and whether temporary traffic control devices were adequate.

The larger project was structured as follows:

  • The Texas Transportation Commission designated a portion of SH 249 as a future toll facility.
  • TxDOT and Montgomery County, acting through the Montgomery County Toll Road Authority, entered into a Construction, Operation and Maintenance Agreement (the “Agreement”) that divided the project into:
    • The “County Project” – the southern portion of the toll road, to be designed, financed, constructed, maintained, and operated by the County, under TxDOT review and approval and subject to TxDOT’s standards.
    • The “TxDOT Project” – the northern segment into Grimes County, to be developed directly by TxDOT.
  • TxDOT retained responsibility for operation and maintenance of the frontage roads adjacent to the County Project.
  • The County retained “all responsibility to the public” for design, maintenance, signing, and lighting on the County Project (the toll facility itself), which would not be part of the State Highway System while tolls were collected, but would instead be part of the County’s toll-road system.

Montgomery County let a contract to SpawGlass as the general contractor for the County Project. SpawGlass then subcontracted specialized work, including a subcontract with Third Coast for electrical work and installation of traffic signals.

II. Summary of the Supreme Court’s Decision

The Supreme Court of Texas held:

  1. No Privity Requirement: Section 97.002 does not require a contractor to be in direct contractual privity with TxDOT. The Court rejected the court of appeals’ holding that the statute applies only to contractors “hired by TxDOT.”
  2. “For TxDOT” – Functional Test: A contractor “constructs or repairs a highway, road, or street for [TxDOT]” if TxDOT will be a recipient, owner, or user of the work—e.g., where TxDOT will have ultimate responsibility for operation and maintenance. In this case, the record conclusively established that SpawGlass and Third Coast performed their work “for” TxDOT because:
    • They worked on SH 249 lanes designated to become frontage roads; and
    • TxDOT would ultimately be responsible for operation and maintenance of those frontage roads and the traffic signals controlling them.
  3. Traffic Signals as “Highway” Construction: By reference to Transportation Code § 221.001(1), a “highway” includes “other necessary structure[s] related to a public road.” Relying on State v. Fidelity & Deposit Co. of Maryland, the Court held that traffic signals—like guardrails—pertain to the physical function of the roadway and thus constitute part of the construction or repair of a “highway” for purposes of § 97.002.
  4. General Contractors “Construct” Even without Performing Physical Labor: The Court rejected an argument that SpawGlass did not “construct” anything because it sublet the actual work. Citing Reames v. Hawthorne-Seving, Inc. and Southern Texas College of Law v. KBR, Inc., the Court confirmed that a general contractor who bears ultimate responsibility to the owner “constructs” the project even though subcontractors perform the physical labor.
  5. Remand for Fact-Intensive Issues: The only unresolved element of § 97.002—whether the contractors were “in compliance with contract documents material to the condition or defect” alleged to be the proximate cause—was fact-intensive. The Court remanded to the court of appeals to evaluate this element in the first instance.

The Court thus reversed the court of appeals’ judgment and remanded for further consideration of whether the contractors conclusively proved all remaining elements of the § 97.002 affirmative defense.

III. Statutory and Case Law Framework

A. Section 97.002 – The Liability Shield

Civil Practice and Remedies Code § 97.002 provides that:

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 or defect that was the proximate cause of the personal injury, property damage, or death.

Key elements a contractor must establish are:

  • It is a “contractor” covered by the statute;
  • It “constructs or repairs a highway, road, or street”;
  • The construction or repair is “for” TxDOT;
  • The claim “aris[es] from the performance of the construction or repair”;
  • The contractor was “in compliance with contract documents material to the condition or defect that was the proximate cause” of the injury or death at the relevant time.

B. Section 97.002 as an Affirmative Defense

The Court characterizes § 97.002 as an affirmative defense. Citing Regency Field Services, LLC v. Swift Energy Operating, LLC, 622 S.W.3d 807 (Tex. 2021) and Gorman v. Life Insurance Co. of North America, 811 S.W.2d 542 (Tex. 1991), it reiterates that an affirmative defense does not contest the plaintiff’s factual allegations but instead raises an independent legal basis for avoiding liability.

Accordingly, under Texas summary-judgment standards (see First Sabrepoint Capital Management, L.P. v. Farmland Partners Inc., 712 S.W.3d 75 (Tex. 2025)), a defendant seeking summary judgment on an affirmative defense must conclusively establish each element of that defense. The burden is squarely on the contractor to prove every statutory requirement of § 97.002.

C. Statutory Interpretation Principles

The Court’s approach to interpreting § 97.002 reflects its broader textualist methodology:

  • De novo review of statutory interpretation questions. See Tex. Health & Human Services Comm’n v. Estate of Burt, 689 S.W.3d 274 (Tex. 2024).
  • A focus on the plain text, with presumptions that:
    • Each word is chosen with care and purpose.
    • Omissions are deliberate. See Rogers v. Bagley, 623 S.W.3d 343, 352 (Tex. 2021); Cadena Comercial USA Corp. v. Texas Alcoholic Beverage Commission, 518 S.W.3d 318 (Tex. 2017).
    • Silence on a particular requirement (such as privity) generally signals the Legislature chose not to impose it. See Hogan v. Zoanni, 627 S.W.3d 163, 170 (Tex. 2021) (plurality op.).
  • Undefined terms are given their ordinary meaning, often informed by contemporaneous dictionaries. See Texas State Board of Examiners of Marriage & Family Therapists v. Texas Medical Ass’n, 511 S.W.3d 28 (Tex. 2017) (as to for in this case).

IV. Analysis of the Court’s Reasoning

A. The “Privity” Question: What Does “For TxDOT” Mean?

1. The Court of Appeals’ View

The Fourteenth Court of Appeals held that § 97.002 applies “only to contractors hired by TxDOT,” reasoning that the Legislature intended a contractual relationship—i.e., privity—between the contractor and TxDOT. Because SpawGlass was hired by the County and Third Coast by SpawGlass (rather than by TxDOT), the court concluded the work was performed for the County, not for TxDOT, and thus § 97.002 was unavailable.

The court of appeals rejected the First Court of Appeals’ decision in Mahoney v. Webber, LLC, 608 S.W.3d 444 (Tex. App.—Houston [1st Dist.] 2020, no pet.), which held that § 97.002 does not impose a privity requirement.

2. Statutory Text and Omission of Privity

The Supreme Court begins with the statute’s text:

“A contractor who constructs or repairs a highway, road, or street for the Texas Department of Transportation…”

Notably absent is any phrase such as “under contract with TxDOT” or “hired by TxDOT.” The Court contrasts this with other Transportation Code provisions where the Legislature explicitly requires contractual privity:

  • Transportation Code § 474.003(a): Limits on contractor liability apply only to a contractor who “enters into a contract with a governmental entity.”
  • Transportation Code § 472.021: Permits a “contractor” under contract “with this state or a political subdivision” to lawfully remove certain barricades.

Given that the Legislature knows how to write privity-based provisions and did so in comparable contexts, its choice not to include similar wording in § 97.002 must be presumed deliberate. The Court thus holds that Section 97.002 does not include a privity requirement, expressly aligning with Mahoney and rejecting the Fourteenth Court of Appeals’ contrary reading.

3. Ordinary Meaning of “For”

Because “for” is undefined in the statute, the Court consults dictionary definitions from around the time of § 97.002’s enactment. These definitions converge on the idea that “for” indicates the person or entity that will receive, own, or use the results of the activity:

  • Webster’s: “used as a function word to indicate the person or thing that something is to be delivered to ... or assigned to ... or used by or in connection with.”
  • Merriam-Webster’s Collegiate: indicates the “object or recipient” of an activity.
  • Random House: “intended to belong to, or be used in connection with.”

From these, the Court extracts a general rule:

  • If TxDOT is the intended recipient, eventual owner, or user of the constructed or repaired roadway (or related facilities), the work is done “for” TxDOT, regardless of whether TxDOT is the immediate contractual counterparty.

This ordinary-meaning-based approach supports the conclusion in Mahoney that a contractor’s lack of direct privity with TxDOT does not itself disqualify the contractor from § 97.002 protection, so long as the contractor is performing work that will ultimately serve TxDOT’s roadway responsibilities.

4. Rejecting “Only-for-One-Entity” and Overbroad Readings

The Court also rejects two extremes:

  1. Exclusive-beneficiary concept: The fact that SpawGlass and Third Coast clearly did work “for” the County (their contracting partner) does not preclude the same work from simultaneously being “for” TxDOT. Nothing in the statute suggests that work can only be “for” a single entity.
  2. Overbroad regulatory-authority test: The contractors’ argument that any work subject to TxDOT oversight, approval, or specification must be “for TxDOT” goes too far. Under that approach, nearly all work on a public road compliant with TxDOT standards could qualify. The Court notes that merely requiring coordination and TxDOT review/approval of plans is not, standing alone, sufficient to establish that the work is “for” TxDOT within the meaning of § 97.002.

The Court declines to draw a bright-line rule for all possible arrangements where TxDOT cedes or shares authority. Instead, it resolves only the case before it by focusing on ultimate responsibility for the frontage roads.

5. Application to This Project: Why the Work Was “For” TxDOT

Several features of the Agreement between TxDOT and the County are critical:

  • The County was given a right-of-way interest to develop and operate the tollway portion as a County Project.
  • The County Project (the toll lanes) would be part of the County toll-road system, not the State Highway System, while tolls were collected.
  • However, TxDOT retained ultimate responsibility for the operation and maintenance of the frontage roads adjacent to the County Project.

The summary-judgment record established that:

  • SpawGlass’s general contractor scope included work on existing SH 249 lanes that would become frontage roads under TxDOT’s ultimate responsibility.
  • Third Coast’s subcontract covered lighting and traffic-signal work on those future frontage roads.
  • Even the plaintiffs’ summary-judgment evidence acknowledged that, after project completion, the traffic signals would be controlled by TxDOT.

Putting these facts together, the Court concludes:

Because SpawGlass and Third Coast contracted to perform work on the frontage roads, and TxDOT would exercise responsibility for their operation and maintenance after the project's completion, the contractors' work was both "for" the County and "for" TxDOT.

In sum, the work was intended to produce, for TxDOT’s long-term use and control, part of a public highway system (the frontage roads and associated traffic signals). That sufficed to establish, as a matter of law, that the contractors were constructing or repairing a highway “for” TxDOT under § 97.002.

B. Scope of “Highway, Road, or Street” – Inclusion of Traffic Signals

1. Statutory Definition of “Highway”

Section 97.002 does not define “highway.” The Court turns to Transportation Code § 221.001(1), which states:

“Highway” includes a tolled or nontolled public road or part of a tolled or nontolled public road and a bridge, culvert, building, or other necessary structure related to a public road.

In State v. Fidelity & Deposit Co. of Maryland, 223 S.W.3d 309 (Tex. 2007), the Court interpreted “other necessary structure related to a public road” as referring to features that “pertain[] to the physical function of the road,” giving guardrails as a paradigmatic example.

2. Applying the Definition to Traffic Signals

The plaintiffs argued that their claims did not arise from the “construction or repair of a highway, road, or street,” but from allegedly negligent installation or operation of traffic signals, which they contended were not themselves a “highway, road, or street.”

The Court rejects this distinction. It reasons:

  • Traffic signals installed along the frontage roads to the tollway “pertain to the physical function of the road” in much the same manner as guardrails.
  • Both guardrails and traffic signals are designed to regulate or facilitate safe travel and reduce the inherent risks of highway use.

Consequently, the Court holds that the traffic-signal work at the intersection constituted construction of a “highway” within the statutory meaning:

The traffic signals installed along what was to become the frontage roads of the tollway project fall into this category. Like guard rails, traffic signals pertain to the physical function of the road and reduce the risks associated with highway travel. We conclude that the contractors' work on the traffic signals for what would become the frontage roads to this tollway project constitutes the construction or repair of a highway for TxDOT.

Thus, claims premised on allegedly defective or incomplete traffic-signal installation still “arise from the performance of the construction or repair of a highway” under § 97.002.

C. Who “Constructs”? Protection for General Contractors

The respondents further argued that SpawGlass did not “construct” anything because it did not “build, combine or arrange anything” at the intersection; instead, Third Coast performed the hands-on signal work. The Court found this argument inconsistent with existing Texas precedent.

Relying on:

  • Reames v. Hawthorne-Seving, Inc., 949 S.W.2d 758 (Tex. App.—Dallas 1997, pet. denied), and
  • Southern Texas College of Law v. KBR, Inc., 433 S.W.3d 86 (Tex. App.—Houston [1st Dist.] 2014, pet. denied),

the Court reiterates that a general contractor “constructs” an improvement when it bears ultimate responsibility to the owner for the project, even if subcontractors perform the actual physical labor. That concept had already been recognized in the context of statutes of repose that protect those who design or construct improvements to real property.

By analogy, SpawGlass falls within the class of “contractor[s] who construct[] or repair[] a highway” for purposes of § 97.002. Physical performance by subcontractors does not strip the general contractor of that status.

D. The Remaining Element: Compliance with Contract Documents

Section 97.002’s protection is conditional: at the time of the injury, the contractor must have been “in compliance with contract documents material to the condition or defect” that proximately caused the harm.

On this point, the factual record is contested. The contractors relied on:

  • Testimony from the County’s project engineer and their employees asserting compliance with the County’s traffic-control plan and contractual specifications.

In response, the plaintiffs submitted evidence suggesting multiple possible non-compliances:

  • Alleged failure by both contractors to:
    • “Wrap signal heads with dark plastic or suitable material to conceal the signal faces” from installation until operation, as required by the contract documents.
  • Alleged failure by SpawGlass to:
    • Modify temporary traffic controls despite warnings about dangerous conditions;
    • Submit necessary changes to the traffic-control plan;
    • Provide and maintain adequate barricades and warning signs to alert drivers.
  • Alleged delay by Third Coast in activating signal lights contrary to its obligation to complete its activities “as work progresses.”

These disputes go to:

  • Which provisions of the contract documents were “material” to the allegedly defective condition or hazard;
  • Whether those provisions were in fact complied with at the relevant time; and
  • Whether any non-compliance was causally connected (“proximate cause”) to the accident.

Recognizing the fact-intensive nature of these issues, the Supreme Court declined to decide them in the first instance, consistent with its pattern in cases such as:

  • Apache Corp. v. Apollo Exploration, LLC, 670 S.W.3d 319 (Tex. 2023) – remanding for the court of appeals to consider other evidentiary issues; and
  • Wasson Interests, Ltd. v. City of Jacksonville, 489 S.W.3d 427 (Tex. 2016) – remanding for evaluation of alternative summary-judgment grounds.

The case was thus remanded for the court of appeals to determine whether SpawGlass and Third Coast conclusively established this remaining § 97.002 requirement.

V. Precedents and Their Influence

A. Mahoney v. Webber, LLC

Mahoney v. Webber, LLC, 608 S.W.3d 444 (Tex. App.—Houston [1st Dist.] 2020, no pet.), is the key direct precedent on § 97.002 that the Supreme Court endorses. In Mahoney, the First Court of Appeals held:

  • Section 97.002 does not impose a requirement that the contractor have a direct contract with TxDOT.
  • It suffices that the contractor is performing work that the governing contract makes it responsible for, where that work is the construction or repair of a highway “for TxDOT.”

The Fourteenth Court of Appeals explicitly rejected Mahoney, characterizing it as an impermissible “rewriting” of the statute. The Supreme Court, however, adopts Mahoney’s reading and, in doing so, resolves a split between the Houston intermediate courts.

B. Statutory-Interpretation Cases

The Court’s interpretive methodology is underpinned by several prior decisions:

  • Tex. Health & Human Servs. Comm’n v. Estate of Burt, 689 S.W.3d 274 (Tex. 2024) – reiterates that statutory interpretation is reviewed de novo.
  • Hampton v. Thome, 687 S.W.3d 496 (Tex. 2024) – reinforces the primacy of the statutory text.
  • Rogers v. Bagley, 623 S.W.3d 343 (Tex. 2021) and Cadena Comercial – emphasize that courts presume the Legislature includes and omits words deliberately.
  • Hogan v. Zoanni, 627 S.W.3d 163 (Tex. 2021) (plurality) – underscores that legislative silence is typically interpreted as purposeful exclusion.
  • Texas State Board of Examiners of Marriage & Family Therapists v. Texas Medical Ass’n, 511 S.W.3d 28 (Tex. 2017) – exemplifies the use of ordinary dictionary meaning when statutory terms are undefined.

These cases collectively justify the Court’s refusal to graft a privity requirement onto § 97.002 and its careful, context-specific reading of “for TxDOT.”

C. “Highway” and Related Structures: Fidelity & Deposit

State v. Fidelity & Deposit Co. of Maryland is pivotal for interpreting “highway” broadly to encompass structures “related to” and necessary for the road’s physical function, such as guardrails. The Court’s analogy between guardrails and traffic signals is straightforward and provides doctrinal support for folding traffic-signal work into “highway construction” for the purposes of § 97.002.

D. General Contractors and “Construction”: Reames and KBR

Earlier decisions such as Reames and Southern Texas College of Law v. KBR, Inc. addressed whether entities who manage and are contractually responsible for construction—but outsource the actual manual labor—are nonetheless within statutory protections that apply to those who “construct” improvements. Both held that general contractors qualify, even where subcontractors wield the hammers and turn the screws.

The Supreme Court uses these decisions by analogy to reject attempts to limit § 97.002’s coverage to only those who do physical work. This substantially enhances the practical utility of § 97.002 for project-level contractors.

VI. Impact and Implications

A. For Contractors, Subcontractors, and Project Structuring

  1. Broader Access to § 97.002 Immunity
    The decision confirms that a wide range of actors—general contractors and subcontractors—can invoke § 97.002, even if their contracts are with counties, toll road authorities, or other local entities rather than TxDOT itself. The key inquiry is functional: Will TxDOT ultimately own, control, or be responsible for operating and maintaining the roadway or structure at issue?
  2. Focus on Ultimate Control and Responsibility
    Contractors should closely analyze who will ultimately:
    • Own the roadway segment or related structure;
    • Bear legal responsibility to the public for its operation and maintenance; and
    • Control its use (e.g., signal timing, access control, etc.).
    Where TxDOT retains such responsibilities (as with frontage roads here), contractors can more confidently assert § 97.002 immunity.
  3. Heightened Importance of Contract Compliance
    Expanded eligibility heightens the importance of the remaining § 97.002 requirement: strict compliance with “contract documents material to the condition or defect”. For contractors:
    • Documentation of compliance (inspection logs, change orders, incident reports) becomes critical.
    • Any deviations from plans or specifications should be formally authorized and recorded.
    Plaintiffs will likely focus litigation on proving non-compliance with specific, safety-related provisions of traffic-control plans and specifications.

B. For TxDOT, Counties, and Toll Authorities

  1. Intergovernmental Agreements and Risk Allocation
    This decision underscores that how TxDOT and local entities allocate long-term operation and maintenance responsibilities in intergovernmental agreements can directly affect the availability of § 97.002 immunity for downstream contractors. Where TxDOT retains ultimate responsibility (as with frontage roads), contractors performing work on those facilities will be treated as working “for TxDOT.”
  2. Potential Incentives in Future Agreements
    State and local entities may:
    • Draft agreements with clearer delineations of what work is intended to benefit TxDOT versus local entities; and
    • Be attentive to how those allocations may extend statutory immunity to contractors working under local contracts.
    This may also influence negotiations around insurance, indemnity, and risk transfer, as contractors gain clarity regarding their potential immunity from tort suits by third parties.

C. For Plaintiffs and Tort Litigation Involving Road Construction

  1. New Hurdle: Affirmative Defense at Summary Judgment
    In suits arising from construction-zone accidents or alleged defects in traffic-control devices, plaintiffs will increasingly face motions for summary judgment under § 97.002. Plaintiffs will need to:
    • Controvert evidence that the work was “for” TxDOT—e.g., by showing that TxDOT did not have or would not have ownership or control; and
    • Develop detailed evidence of non-compliance with contract provisions that relate to the alleged hazard (wrapping signals, signing, temporary traffic control, phasing of work, etc.).
  2. Alternative Defendants
    If contractors successfully invoke § 97.002, plaintiffs may focus more on:
    • Claims against governmental entities (subject to sovereign/immunity limitations and Tort Claims Act exceptions); or
    • Other private parties not shielded by § 97.002 (e.g., design professionals in some contexts, depending on other statutes).

D. Doctrinal Significance in Texas Statutory Interpretation

The opinion reinforces several interpretive themes:

  • Textual fidelity: The Court shows a strong reluctance to add text (like a privity requirement) not chosen by the Legislature, especially when similar statutes show that the Legislature knows how to impose such requirements.
  • Functional, ordinary-meaning approach: “For TxDOT” is construed through ordinary language usage—who will receive, own, or use the results—rather than through purely formalistic inquiries into contract parties.
  • Deliberate narrowing of scope: While rejecting the privity requirement, the Court also rejects an overly broad interpretation that would extend § 97.002 to virtually any contractor subject to TxDOT standards, making clear that not all regulatory oversight creates “for TxDOT” work.

The Court also deliberately leaves open more difficult future questions about projects where TxDOT has ceded or shares authority in more complex ways, suggesting that the precise outer boundaries of “for TxDOT” will be refined in later cases.

VII. Key Legal Concepts Explained

A. Affirmative Defense

An affirmative defense accepts, for the sake of argument, that the plaintiff’s factual allegations may be true but introduces an independent legal reason why the defendant should not be held liable. Section 97.002 is such a defense: even assuming negligence, if the contractor meets all statutory elements, the law bars liability.

B. Summary Judgment and “Conclusive” Proof

In Texas, a defendant who moves for summary judgment on an affirmative defense must prove each element of that defense so clearly that reasonable jurors could only reach one conclusion. This is often done through affidavits, depositions, and documents (e.g., contracts, plans, inspection reports).

C. Contractual Privity

Privity of contract means a direct contractual relationship between two parties. The Fourteenth Court of Appeals required contractors to be in privity with TxDOT to claim § 97.002. The Supreme Court rejects that requirement: a contractor need not have a direct contract with TxDOT if the work it performs is nonetheless “for” TxDOT in the sense that TxDOT will own, operate, or be responsible for the completed work.

D. Frontage Roads

A frontage road is a local or access road running parallel to a major highway, providing entry and exit points to adjacent properties and to the main lanes. In this case, the County Project converted parts of SH 249 into toll road main lanes, while TxDOT retained responsibility for the frontage roads adjacent to the toll facility.

E. “Contract Documents Material to the Condition or Defect”

The statute focuses on:

  • “Contract documents” – the formal written specifications, plans, and provisions that govern the contractor’s work.
  • “Material to the condition or defect” – only those provisions that bear a meaningful relationship to the allegedly dangerous condition (e.g., requirements for covering inactive signal heads, placement of warning signs, etc.).

To gain immunity, the contractor must be in compliance with these material documents at the time of the injury.

F. Proximate Cause

Proximate cause requires:

  • Causation in fact – the act or omission was a substantial factor in bringing about the harm; and
  • Foreseeability – a person of ordinary intelligence could anticipate that the act or omission might create a risk of this type of harm.

Under § 97.002, it is not enough that a contractor complied with some contract documents; it must be in compliance with those that relate to the defect that was the proximate cause of the injury.

VIII. Conclusion: Significance of the Decision

The Supreme Court’s opinion in Third Coast Services & SpawGlass v. Castaneda establishes several important precedents:

  • No Privity Requirement: Section 97.002’s protections extend beyond contractors directly hired by TxDOT. Any contractor or subcontractor whose work produces highway infrastructure for which TxDOT will assume ultimate responsibility may qualify, regardless of the formal chain of contracts.
  • Functional Interpretation of “For TxDOT”: The focus shifts to who will receive, own, operate, or use the constructed or repaired “highway, road, or street,” not merely who signed the contract.
  • Broad “Highway” Scope: The statute encompasses not only pavement and lanes, but also related “necessary structures” such as traffic signals that are integral to the physical function of the road.
  • Protection for General Contractors: A general contractor “constructs” a project even if subcontractors perform all physical tasks, and thus may claim § 97.002 immunity.
  • Central Role of Contract Compliance: The remaining battleground in many such cases will be whether contractors strictly complied with safety-critical contract documents and whether any deviation was causally connected to the accident.

In the broader legal landscape, this decision solidifies a textualist, function-oriented approach to statutory immunity for highway construction contractors. It narrows the scope of tort exposure for contractors and subcontractors working on highway projects with ultimate TxDOT involvement, while simultaneously elevating the importance of meticulous adherence to contract specifications and careful drafting of intergovernmental agreements that allocate control over public roadways.

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