Third Coast Services, LLC and Spawglass Civil Construction, Inc. v. Felicitas Castaneda, Individually and as Representative of the Estate of Pedro Castaneda, Irving Castaneda, Evelyn Castaneda, and Lizzie Castaneda

Supreme Court of Texas
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No. 23-0848
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Third Coast Services, LLC and
SpawGlass Civil Construction, Inc.,
Petitioners,

v.

Felicitas Castaneda, Individually and as Representative of
the Estate of Pedro Castaneda, Deceased, Irving Castaneda,
Evelyn Castaneda, and Lizzie Castaneda,
Respondents

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On Petition for Review from the
Court of Appeals for the Fourteenth District of Texas
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Argued September 9, 2025

JUSTICE HUDDLE delivered the opinion of the Court.

Justice Lehrmann did not participate in the decision.

Civil Practice and Remedies Code Section 97.002 extinguishes
liability of contractors who construct or repair a highway, road, or street
for the Texas Department of Transportation and meet certain other
requirements. The contractors here seek the statute’s protection, but
the court of appeals held that Section 97.002 does not apply because
neither contracted directly with TxDOT. We hold that the court of
appeals erred by engrafting a contractual-privity requirement onto the
statute’s text. We also hold that the contractors conclusively established
that they worked “for” TxDOT as Section 97.002 requires and that the
work they performed qualifies as construction or repair of “a highway,
road, or street.” We therefore reverse the court of appeals’ judgment and
remand the case to that court for it to determine whether the contractors
conclusively established the remaining elements of Section 97.002.
I. Background
The decedent, Pedro Castaneda, was driving across State
Highway 249 on Woodtrace Boulevard when two vehicles collided with
his truck. The intersection and area surrounding it were under
construction at the time, and, while traffic lights had been installed,
they were not yet operational. The parties dispute whether, at the time
of the accident, the traffic lights were covered with black fabric to
indicate that they were not working. But according to the police report,
Castaneda failed to yield the right of way at the stop sign that controlled
the intersection while the traffic lights were not operational.
Castaneda’s family sued, and the contractor defendants raised
the Section 97.002 defense. Because determining whether Section
97.002 applies requires understanding the nature of the construction
project and the relationships among those involved, we provide a brief
overview.
After the Texas Transportation Commission designated a portion
of SH 249 as a future toll facility, the Texas Department of
Transportation and Montgomery County, through the Montgomery

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County Toll Road Authority, entered into a written agreement
governing the toll road project.1 Their Construction, Operation and
Maintenance Agreement divides the overall project in two. It gives the
County the right to use a portion of the State’s right-of-way over SH 249
to design and construct the “County Project,” which is the southern
portion of the new toll road beginning at the Montgomery/Harris County
border. The “TxDOT Project,” by contrast, covers the portion of the
project extending into Grimes County, which TxDOT would develop.
The Agreement declares that the County will “design, construct,
maintain, and operate the County Project,” although the County and its
contractors must “cooperate and coordinate” with TxDOT and TxDOT
must review and approve the County’s plans:
The County will finance, acquire right-of-way, design,
construct, maintain, and operate the County Project. . . .
The State and County agree to take all reasonable actions
and to cooperate and coordinate with each other and to
cause their contractors to cooperate and coordinate with
each other to ensure the timely construction and
completion of the County Project.
. . . [D]evelopment of plans for the County Project will be
the responsibility of the County, but shall be coordinated
with TxDOT at all stages and shall be submitted to TxDOT
for review and approval . . . . Significant field changes
shall likewise be submitted to TxDOT prior to being
accomplished. . . . Specifications for such plans and any
field changes to the County Project and the frontage roads
shall be in accordance with the latest standards required
by TxDOT.

1 The Transportation Code authorizes TxDOT to enter into a toll project

agreement with a “local toll project entity,” which may include a county or a
regional tollway authority. TEX. TRANSP. CODE §§ 373.001(1), .006(a).

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The Agreement provides that “the County shall have all
responsibility to the public for the design, maintenance, signing, and
lighting on the County Project.” It also declares that, so long as tolls are
collected, the County Project “will not be designated as part of the State
Highway System and shall be considered as part of the County toll road
system.” But the Agreement treats frontage roads differently: it states
that TxDOT shall be responsible for “the operation and maintenance of
the frontage roads that are adjacent to the County Project.”
To summarize, the County was responsible for designing,
constructing, maintaining, and operating the County Project, but it was
required to coordinate with TxDOT, comply with TxDOT’s standards,
and allow TxDOT to review and approve the project’s plans. Following
construction, the County Project would become part of the County’s toll
road system and would not be part of the State’s highway system. But
responsibility for operation and maintenance of the frontage roads
adjacent to the County Project would reside with TxDOT.
The Agreement between TxDOT and the County contemplates
that the County would award and fund contracts with third parties to
carry out the design and construction work. So the County contracted
with SpawGlass Civil Construction, Inc. to serve as the County Project’s
general contractor. SpawGlass, in turn, contracted with subcontractors
focused on distinct aspects of the County Project. One such
subcontractor was Third Coast Services, LLC. Third Coast’s scope of
work, reflected in its written contract with SpawGlass, was to furnish
and install “electrical components,” including traffic signals.

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SpawGlass and Third Coast raised the Section 97.002 defense via
motions for summary judgment. Section 97.002 states:
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.
TEX. CIV. PRAC. & REM. CODE § 97.002.
The trial court denied summary judgment, and the contractors
filed an interlocutory appeal. See id. § 51.014(a)(17) (“A person may
appeal from an interlocutory order . . . that . . . grants or denies a motion
for summary judgment filed by a contractor based on Section 97.002
. . . .”).
The court of appeals affirmed. It held that the contractors failed
to establish an essential element of Section 97.002—that they are
contractors who constructed or repaired a highway, road, or street “for”
TxDOT. 679 S.W.3d 254, 262–63 (Tex. App.—Houston [14th Dist.]
2023). The court concluded that the statute “applies only to contractors
hired by TxDOT”—in other words, “the Legislature intended for there to
be a contractual relationship between the contractor and TxDOT.” Id.
at 262. The court rejected Mahoney v. Webber’s conclusion that privity
with TxDOT is unnecessary as long as the contractor “perform[s] work
under a contract that makes the [contractor] responsible for
constructing or repairing a highway, road, or street for TxDOT.” Id. at
260–61 (quoting Mahoney v. Webber, LLC, 608 S.W.3d 444, 448 (Tex.

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App.—Houston [1st Dist.] 2020, no pet.)). It reasoned that Mahoney
“impermissibly ‘rewrites’ the statute and expands for whom the
contractor must perform work in order for the statute to apply.” Id. at
261. Because the contractors did not conclusively establish that they
were “hired by TxDOT,” the court held they could not invoke Section
97.002. Id. at 263.
The court of appeals did not address Castaneda’s alternative
argument that neither general-contractor work nor traffic-signal
installation constitutes construction or repair of “a highway, road, or
street.” Id. Nor did it address whether the contractors conclusively
established the other elements of Section 97.002. SpawGlass and Third
Coast petitioned this Court for review, which we granted.
II. Discussion
Civil Practice and Remedies Code Section 97.002 precludes a
contractor’s liability “to a claimant for personal injury, property damage,
or death” under specified circumstances. TEX. CIV. PRAC. & REM. CODE
§ 97.002. To avail himself of the statute’s protection, the contractor
must “construct[] or repair[] a highway, road, or street for [TxDOT],”
and the plaintiff’s claim against him must “aris[e] from the performance
of the construction or repair.” Id. The contractor must also demonstrate
he was “in compliance with contract documents material to the condition
or defect that was the proximate cause of the personal injury, property
damage, or death.” Id.
Section 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. See Regency Field

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Servs., LLC v. Swift Energy Operating, LLC, 622 S.W.3d 807, 819 (Tex.
2021) (“[A]n affirmative defense is one of avoidance, rather than a
defense in denial.” (alteration in original) (quoting Gorman v. Life Ins.
Co. of N. Am., 811 S.W.2d 542, 546 (Tex. 1991))). Thus, to obtain
summary judgment under Section 97.002, the contractors must
conclusively establish each of the statute’s requirements. See First
Sabrepoint Cap. Mgmt., L.P. v. Farmland Partners Inc., 712 S.W.3d 75,
84 (Tex. 2025) (“To establish entitlement to summary judgment based
on an affirmative defense . . . the defendant must conclusively establish
each element of its affirmative defense.”).
Statutory interpretation is a question of law that we review de
novo. Tex. Health & Hum. Servs. Comm’n v. Est. of Burt, 689 S.W.3d
274, 279 (Tex. 2024). As with any statute, our interpretation begins with
the statute’s text. Hampton v. Thome, 687 S.W.3d 496, 501 (Tex. 2024).
We “presume the Legislature chooses a statute’s language with care,
including each word chosen for a purpose, while purposefully omitting
words not chosen.” Rogers v. Bagley, 623 S.W.3d 343, 352 (Tex. 2021)
(citation modified) (quoting Cadena Comercial USA Corp. v. Tex.
Alcoholic Beverage Comm’n, 518 S.W.3d 318, 325–26 (Tex. 2017)).
In affirming the trial court’s denial of the contractors’ motions for
summary judgment, the court of appeals concluded that Section 97.002
benefits only contractors hired by and in privity with TxDOT. 679
S.W.3d at 262. Because the contractors here were hired by and
contracted with entities other than TxDOT (the County and SpawGlass,
respectively), the court concluded they did not perform work “for”

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TxDOT and therefore cannot avail themselves of Section 97.002. Id. at
262–63.
We begin by noting that Section 97.002’s text nowhere limits its
application to contractors who contract with and are hired by TxDOT
directly. Instead, the statute’s scope extends to a contractor that
“constructs or repairs a highway, road, or street for” TxDOT. TEX. CIV.
PRAC. & REM. CODE § 97.002. The Legislature expressly requires
contractual privity when it intends to cabin a statute’s scope
accordingly. For example, Transportation Code Section 474.003’s
limitation on contractor liability applies only to “[a] contractor who
enters into a contract with a governmental entity.” TEX. TRANSP. CODE
§ 474.003(a). Likewise, Transportation Code Section 472.021 permits a
“contractor” to remove highway construction barricades without
punishment if he is “under contract with this state or a political
subdivision of this state.” Id. § 472.021(b)(2), (d)(1). But Section 97.002
contains no analogous mention of contractual privity. We must presume
this omission was deliberate. Rogers, 623 S.W.3d at 352; see also Hogan
v. Zoanni, 627 S.W.3d 163, 170 (Tex. 2021) (plurality op.) (“[W]hen a
statute is silent on a subject, we presume the Legislature purposefully
excluded that language.”). Accordingly, we agree with the Mahoney
court’s conclusion that Section 97.002’s application does not require
privity with TxDOT. 608 S.W.3d at 447–48. The court of appeals erred
by reading such a requirement into the statute.
Returning to Section 97.002’s text, we must determine when,
absent such privity, a contractor’s work in “construct[ing] or repair[ing]
a highway, road, or street” is “for” TxDOT. When the statute does not

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define a term, we apply its ordinary, common meaning unless a contrary
meaning is apparent from the text, typically by looking to dictionary
definitions. Tex. State Bd. of Exam’rs of Marriage & Fam. Therapists v.
Tex. Med. Ass’n, 511 S.W.3d 28, 34–35 (Tex. 2017).
“For” can have many meanings depending on context.
Dictionaries from around the statute’s enactment reflect the ordinary
meaning of “for” as used in Section 97.002 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). See, e.g., For, WEBSTER’S THIRD NEW INTERNATIONAL
DICTIONARY (2002) (“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”); For, MERRIAM-WEBSTER’S COLLEGIATE
DICTIONARY (10th ed. 1996) (“a function word to indicate the object or
recipient of a perception, desire, or activity”); For, THE RANDOM HOUSE
DICTIONARY OF THE ENGLISH LANGUAGE (2d ed. 1987) (“intended to
belong to, or be used in connection with”). In determining whether
Section 97.002 applies, then, courts must consider whether TxDOT will
be a recipient, owner, or user of the contractor’s work.
In light of the ordinary meaning of “for,” one who contracts
directly with TxDOT to construct or repair a state-owned highway, road,
or street will, as a general rule, perform that work “for” TxDOT. The
same will generally be true of subcontractors hired to perform part of
the work. But here, Castaneda argues that TxDOT relinquished control
over the County Project, so any work performed on the County Project
must be only for the County and not for TxDOT. Castaneda points to

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provisions of the Agreement to support his contention that TxDOT ceded
control over the County Project to the County:
• The County bears responsibility to “finance, acquire right-of-
way, design, construct, maintain, and operate the County
Project.”
• “[D]evelopment of plans for the County Project will be the
responsibility of the County . . . .”
• The County “shall have all responsibility to the public for the
design, maintenance, signing, and lighting on the County
Project.”
• The County Project “will not be designated as part of the State
Highway System and shall be considered as part of the County
toll road system.”
While the contractors were unquestionably doing construction
work for the County, nothing in Section 97.002’s text or the plain
meaning of “for” suggests that work may be “for” only the entity who
exercises control over the work while it is ongoing to the exclusion of all
others. The fact that the contractors’ work may have been “for” the
County does not preclude their work from also being “for” TxDOT.
At the same time, the contractors’ proposed construction strikes
us as too broad. They contend 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. But the argument proves too much. Indeed, under this
reading, almost any work performed on a public road or highway could
be considered work performed for TxDOT. A requirement that the
County must “coordinate” with TxDOT and submit its plans for TxDOT’s
“review and approval” is, alone, insufficient. The Legislature could have
drafted Section 97.002 that broadly, to preclude liability of any

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contractor who constructs or repairs any road over which TxDOT may
exercise a degree of supervisory regulatory authority, yet it did not.
For today’s purposes, we need not define for all cases the precise
line at which construction work on a project for which TxDOT has ceded
a highway, road, or street to another entity qualifies as construction
work “for” TxDOT within the meaning of Section 97.002. It is sufficient
to conclude that the work of the two contractors in this case qualifies
because the County and TxDOT agreed that TxDOT ultimately would
bear responsibility for the operation and maintenance of the project’s
frontage roads. In other words, the area on which SpawGlass contracted
to perform construction work included the existing lanes of SH 249, a
highway that was owned by the State and designated to become the
frontage roads over which TxDOT would ultimately assume
responsibility and control. Third Coast’s subcontract likewise required
it to perform lighting and signal work on what would become the
frontage roads over which TxDOT would ultimately exercise
responsibility and control. Even Castaneda presented summary
judgment evidence acknowledging that the traffic signals would be
“controlled by TxDOT after the project was complete.” 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. See Mahoney, 608 S.W.3d at
447–48 (applying Section 97.002 to a contractor’s agreement with a
county because the agreement required the contractor to construct part
of a state highway). The court of appeals erred by concluding that the

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contractors did not perform work “for” TxDOT within the meaning of
Section 97.002.
Castaneda advances other grounds for affirming, which the court
of appeals did not address given its holding. First, Castaneda contends
that the contractors cannot avail themselves of Section 97.002 because
his accident did not “aris[e] from the performance of the construction or
repair” of “a highway, road, or street” but rather from the negligent
installation of traffic signals, which are not a “highway, road, or street.”
TEX. CIV. PRAC. & REM. CODE § 97.002.
Section 97.002 does not define “highway,” but the parties agree
that the controlling definition is found in the Transportation Code:
“‘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.” TEX. TRANSP. CODE
§ 221.001(1) (emphasis added). This Court has held that “‘other
necessary structure related to a public road’ is something that likewise
pertains to the physical function of the road, such as a guard rail.” State
v. Fid. & Deposit Co. of Md., 223 S.W.3d 309, 312 (Tex. 2007). 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

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tollway project constitutes the construction or repair of a highway for
TxDOT.2
Castaneda’s second alternative argument for affirmance, unlike
the first, does not present a clean legal issue. The parties dispute
whether the contractors 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.”
TEX. CIV. PRAC. & REM. CODE § 97.002.
The contractors urge us to review the evidence regarding their
contractual compliance in the first instance and render judgment in
their favor. Both rely on testimony from the County’s project engineer
and their own employees to the effect that they were in compliance with
the County’s traffic control plan. In response, Castaneda asserts the
contractors fell short of compliance in multiple ways:
• Both failed to “[w]rap signal heads with dark plastic or
suitable material to conceal the signal faces from the time of
installation until placing into operation.”

2 In a single paragraph, Castaneda also contends that SpawGlass did

not “construct” anything because it “did not ‘build,’ ‘combine’ or ‘arrange’
anything in the [i]ntersection; that was Third Coast’s job.” We reject this
narrow reading of “construct.” A general contractor who bears ultimate
responsibility to the owner for a construction project “constructs” the project
even though the general contractor may not actually perform the physical
work. See Reames v. Hawthorne-Seving, Inc., 949 S.W.2d 758, 763 (Tex. App.—
Dallas 1997, pet. denied) (holding that a statute of repose protecting those who
“construct” improvements applied to a general contractor who “bore ultimate
responsibility” to the owner even though a subcontractor physically
“hammer[ed] the nails and turn[ed] the screws”); S. Tex. Coll. of Law v. KBR,
Inc., 433 S.W.3d 86, 91–92 (Tex. App.—Houston [1st Dist.] 2014, pet. denied)
(applying Reames).

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• Despite several warnings about the dangerous traffic
conditions at the intersection where this accident occurred,
SpawGlass failed to “modify temporary traffic controls,”
“[s]ubmit changes to the traffic control plan,” or “[f]urnish and
maintain the barricades and warning signs” that would have
alerted drivers to the intersection’s dangerous condition.
• Third Coast delayed in activating the signal lights after they
were installed in violation of its obligation to complete its
activities “as work progresses.”
This is the type of fact-intensive question we typically do not
resolve without the benefit of the court of appeals’ reasoning.
Accordingly, consistent with our typical practice, we remand this issue
to the court of appeals. See, e.g., Apache Corp. v. Apollo Expl., LLC, 670
S.W.3d 319, 340 (Tex. 2023) (remanding case to the court of appeals to
consider whether there was evidence other than what the court of
appeals improperly relied on to support reversal of a no-evidence
summary judgment); Wasson Ints., Ltd. v. City of Jacksonville, 489
S.W.3d 427, 439 (Tex. 2016) (remanding case to the court of appeals to
address alternative summary judgment grounds in the first instance).
III. Conclusion
The court of appeals erred by holding Section 97.002 applies only
if a contractor is hired by TxDOT and a party to a TxDOT contract
governing the construction project at issue. Though neither SpawGlass
nor Third Coast was a party to the TxDOT contract, the summary
judgment record conclusively established that (1) Castaneda’s claim
arose from the construction or repair of a highway and (2) SpawGlass
and Third Coast performed their work “for” TxDOT within the meaning
of Section 97.002. We reverse the court of appeals’ judgment and
remand the case to that court to consider whether SpawGlass and Third

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Coast conclusively established the remaining elements of Section
97.002.

Rebeca A. Huddle
Justice

OPINION DELIVERED: December 12, 2025

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