13th Court of Appeals grants mandamus relief to TxDOT – allowed TxDOT to withhold from discovery skid mark and other highway safety statistics

In re Texas Department of Transportation, 13-21-00214-CV  (Tex. App. – Corpus Christi, Dec. 9, 2021)

In this mandamus action, the 13th Court of Appeals conditionally granted the writ, noting federal law made certain information regarding highway safety data privileged and exempt from discovery.

The Simpson plaintiffs filed suit against TxDOT for survival and wrongful death damages arising from a motorcycle accident that occurred on State Highway 361 causing the death of one individual. The decedent was driving a motorcycle when a Ford F-150 truck veered into the decedent’s lane of travel. When the decedent attempted to avoid the collision and applied his brakes his back tire locked up and he was killed. The Simpson familied sued TxDOT (and others). The Simpsons alleged the roadway was dangerous and subject to “polishing” which a special roadway defect caused by years of travel and increased traffic that results in a decrease in the coefficient road friction.  The Simpsons alleged that TxDOT knew about the defect and was aware of multiple deaths on that stretch of the highway resulting from the defect. The Simpsons sought, through discovery, to compel TxDOT to produce Pavement Management Information System (PMIS) data, including skid testing data.  TxDOT sought a protective order and the Simpsons filed a motion to compel.  The trial court granted the Simpsons’ motion to compel and ordered TxDOT to produce the data. TxDOT initiated this original proceeding.

Since TxDOT is asserting the privilege, it had the burden to establish the privilege. TxDOT asserted 23 U.S.C. § 409 is a federal statute which protects traffic-hazard data that is compiled or collected by the state pursuant to federal highway safety programs from being the subject of discovery or being used as evidence in federal and state court proceedings. This includes the Highway Safety Improvement Program in § 148. See 23 U.S.C. §§ 130, 144, 148. Congress established several federal programs to assist the States in identifying and evaluating roads and highways in need of safety improvements and to provide funding for those projects. The United States Supreme Court concluded that this section “protects not just the information an agency generates” or compiles for the stated purposes, but “also any information that an agency collects from other sources” for those purposes. However, it does not apply to information collected for a different purpose. The Simpsons asserted the information that they requested was used as part of routine maintenance, and thus, the statutory privilege does not apply. However, TxDOT operates the PMIS program through its Maintenance Division, which keeps detailed statistics used for the program.  As a result, it was an abuse of discretion for the trial court to order the release of the information.

If you would like to read this opinion click here. Panel consists of Chief Justice Contreras and Justices Benavides and Tijerina. Opinion by Chief Justice Contreras