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San Jacinto River Authority v. Bolt
Court of Appeals of Texas, First District
June 13, 2019
SAN JACINTO RIVER AUTHORITY, Appellant
ELIZABETH BOLT, STEPHEN BOLT, EDWARD AVELLA, MICHELLE AVELLA, JAMES BEECH, SUSAN BEECH, JAMES P. CLARK, ROBERT FRYE, MELANIE FRYE, JOHN HAMBRICK, SHARON HAMBRICK, JAMES HOLEKAMP, TAMMY HOLEKAMP, TRACY JANIK, KRIS JANIK, SCOTT JENSEN, KAMELA JENSEN, LARRY KEESE, JANET KEESE, DAVID KELLEY, LEIGH MARCUS-KELLEY, ROBERT C. NORRIS, CAROLANNE NORRIS, BENNETT J. REAVES, ASHLEY REAVES, CAROLINE SANTIAGO, JAMES SANTIAGO, ADAM SHAFFER, YVETTE SHAFFER, LARRY SHRYOCK, JANET SHRYOCK, NAOMI STAIR, MICHAEL STAMPS, PAMELA STAMPS, RAUL SUAZO, SHELLEY SUAZO, ROBERT SWIFT, SANDRA SWIFT, JAMES TOWNE, SUSAN TOWNE, BRADFORD WITMER, SUSAN WITMER, JOHN WOOD, AMANDA WOOD, BERNIE WUTHRICH, JANET WUTHRICH, JEFF ARTHUR, AND JENNIFER ARTHUR, Appellees
Appeal from the County Civil Court at Law No. 1 Harris
County, Texas Trial Court Case No. 1113458
consists of Justices Higley, Hightower, and Countiss.
RICHARD HIGHTOWER JUSTICE
interlocutory appeal, appellant San Jacinto River Authority,
the defendant below, asserts that the trial court erred in
denying its Rule 91a motion to dismiss. The River
Authority's Rule 91a dismissal motion contended that
because the plaintiffs' inverse-condemnation (takings)
claims have no basis in fact or law, the River
Authority's governmental (sovereign) immunity is not
waived and the plaintiffs' claims should be dismissed for
lack of subject-matter jurisdiction.
San Jacinto River Authority v. Burney, 570 S.W.3d
820 (Tex. App.- Houston [1st Dist.] 2018, no pet. h.), an
opinion delivered six months ago, this court addressed three
appeals in which the River Authority raised and argued the
same issues that it is raising in this appeal. For the
reasons expressed in Burney, we affirm.
Hurricane Harvey in late August and early September of 2017,
the San Jacinto River Authority released water from Lake
Conroe into the West Fork of the San Jacinto River. The
forty-eight plaintiffs are owners of homes that flooded in
Kingwood, Texas. The homeowners have sued the River Authority
in the civil county court at law of Harris County, seeking
compensation for their inverse-condemnation claims. The
homeowners allege that during Hurricane Harvey, the River
Authority released rising water from Lake Conroe into the
West Fork of the San Jacinto River, and that the released
water caused or exacerbated the downstream flooding of their
homes in Kingwood. They allege two causes of action against
the River Authority: inverse condemnation of their real and
personal property; and inverse condemnation by an
"inundation, flood, flowage or drainage easement"
over their property.
are two differences between this case and the three cases in
Burney. The three cases in Burney were
filed in Harris County district court, and in each of those
cases the homeowner plaintiffs asserted an additional
statutory takings claim under Government Code section
2007.021. See Burney, 570 S.W.3d at 824-29 (holding
that Harris County's county civil courts at law have
exclusive jurisdiction over inverse-condemnation claims and
that a statutory takings claim must be brought in district
court). Except for these two differences, the factual
allegations and the two inverse-condemnation claims in this
case and in the three cases in Burney are
appeal, the River Authority asserts that the trial court
erred in denying its Rule 91a motion to dismiss because the
homeowners did not plead sufficient facts to establish a
waiver of the River Authority's immunity. We review de
novo the trial court's ruling. See id. at 830.
River Authority asserts six reasons why the homeowners'
pleading is insufficient. The River Authority's first two
reasons assert that the homeowners' flooding did not
constitute a taking because their properties were affected by
a confluence of water and because the peak inflow into Lake
Conroe exceeded its peak outflow. In Burney we
rejected these two arguments, and we reject them here for the
same reasons, including because of their attempted reliance
on evidence. See id. at 835-36; see also
id. at 830-31 (rejecting River Authority's request
to consider evidence with Rule 91a dismissal motion,
including under the guise of judicial notice).
River Authority additionally argues that the homeowners'
flooding did not constitute a taking because the water was
released from Lake Conroe directly into the West Fork of the
San Jacinto River and not directly into their respective
properties. Burney addressed and rejected this
argument, noting contrary authority from the Texas Supreme
Court and the United States Supreme Court. See id.
at 835-36 & n.67 (citing Tarrant Regional Water
Distr. v. Gragg, 151 S.W.3d 546, 550, 554-55 (Tex. 2004)
(affirming takings judgment despite evidence that water
district released lake water directly into river during heavy
rains and water traveled about eight miles downstream before
causing flood damage); and Ark. Game & Fish
Comm'n v. United States, 568 U.S. 23, 27-28 (2012)
(holding that property owner 115 miles downstream from dam
could maintain federal takings claim)).
River Authority's next two arguments are that the
homeowners' pleading does not sufficiently plead intent
or that the flooding was for a public purpose. Again,
Burney thoroughly addressed and rejected these
identical arguments, and we do as well based on the reasoning
in Burney. See id. at 833-35, 837-38.
we reject the River Authority's last argument-that the
homeowners' inverse-condemnation claim for an
"inundation, flood, flowage or drainage easement"
over their property is not sufficiently pleaded factually or
legally-which was addressed in Burney: "The
same allegations also sufficiently support the
homeowners' constitutional takings claims for an
'inundation, flood, flowage or drainage easement over
their property,' or a partial taking." Id.
at 838 & n.79 (citing H ...