The Tort Claims Act "does not apply to a claim based on ... a governmental unit's decision not to perform an act or on its failure to make a decision on the performance or nonperformance of an act if the law leaves the performance or nonperformance of the act to the discretion of the governmental unit." TEX. CIV. PRAC. & REM. CODE sec. 101.056(2). By force of this provision, decisions about the design of a roadway or about installing safety features are discretionary decisions for which a governmental unit may not be sued.
Tex. Dep't of Transp. v. Ramirez, 74 S.W.3d 864, 867 (Tex. 2002);
accord State v. Miguel, 2 S.W.3d 249, 251 (Tex. 1999) ("A court should not second-guess a governmental unit's decision about the type of marker or safety device that is the most appropriate").
Similarly, the Tort Claims Act "does not apply to a claim arising from the failure of a governmental unit initially to place a traffic or road sign, signal, or warning device if the failure is a result of a discretionary action of the governmental unit[.]" TEX. CIV. PRAC. & REM. CODE sec. 101.060(a)(1). Under sections 101.056 and 101.060, then, a governmental unit retains its immunity for discretionary sign placement decisions.
State v. Gonzales, 82 S.W.3d 322, 326 (Tex. 2002);
State v. Rodriguez, 985 S.W.2d 83, 86 (Tex. 1999). If the county places the signs, and thereafter they are damaged or destroyed and the county has notice, the calculus changes.
See TEX. CIV. PRAC. & REM. CODE sec. 101.060(a)(2)-(3).
NOTE: This discussion does not address the liability or immunity concerns implicated by placement or non-placement of "No Noodling" signs. That, as they say, is a catfish of an entirely different color.
