San Jacinto River Authority v. Vicente Medina, Ashley Medina & Aris Antoniou ( 2021 )

IN THE SUPREME COURT OF TEXAS
444444444444
NO. 19-0400
444444444444
SAN JACINTO RIVER AUTHORITY, PETITIONER,
v.
VICENTE MEDINA, ASHLEY MEDINA AND ARIS ANTONIOU,
RESPONDENTS
44444444444444444444444444444444444444444444444444
ON PETITION FOR REVIEW FROM THE
COURT OF APPEALS FOR THE FIRST DISTRICT OF TEXAS
44444444444444444444444444444444444444444444444444
~consolidated with ~
444444444444
NO. 19-0401
444444444444
SAN JACINTO RIVER AUTHORITY, PETITIONER,
v.
MICHAEL A. BURNEY, ET AL., RESPONDENTS
44444444444444444444444444444444444444444444444444
ON PETITION FOR REVIEW FROM THE
COURT OF APPEALS FOR THE FIRST DISTRICT OF TEXAS
44444444444444444444444444444444444444444444444444
~consolidated with ~
444444444444
NO. 19-0402
444444444444
SAN JACINTO RIVER AUTHORITY, PETITIONER,
v.
CHARLES J. ARGENTO, ET AL., RESPONDENTS
44444444444444444444444444444444444444444444444444
ON PETITION FOR REVIEW FROM THE
COURT OF APPEALS FOR THE FIRST DISTRICT OF TEXAS
44444444444444444444444444444444444444444444444444
Argued October 6, 2020
JUSTICE DEVINE delivered the opinion of the Court, in which CHIEF JUSTICE HECHT,
JUSTICE GUZMAN, JUSTICE LEHRMANN, JUSTICE BOYD, JUSTICE BUSBY, JUSTICE BLAND, and
JUSTICE HUDDLE joined.
JUSTICE BLACKLOCK filed a dissenting opinion.
During Hurricane Harvey in 2017, the San Jacinto River Authority released water from
its Lake Conroe reservoir into the San Jacinto River. Contending that this release caused or
contributed to the flooding of their properties, downstream property owners filed three multi-
party suits in two different district courts, asserting both common-law inverse condemnation
claims under Article 1, Section 17 of the Texas Constitution and statutory takings claims under
Chapter 2007 of the Government Code. These cases reach us as interlocutory appeals from trial
2
court orders denying the River Authority’s motions to dismiss the three suits. The three cases
have been consolidated for purposes of this appeal.1
The issue we must decide is whether Chapter 2007 applies strictly to regulatory takings,
as the River Authority maintains, or whether it may also apply to a physical taking, as the
property owners contend. The court of appeals affirmed the trial courts’ orders, which denied
the River Authority’s motions to dismiss, concluding that Chapter 2007’s statutory takings claim
included the physical takings claim alleged in the property owners’ pleadings. San Jacinto River
Auth. v. Burney, 570 S.W.3d 820 (Tex. App. —Houston [1st Dist.] 2018). We agree and affirm.
I
The San Jacinto River Authority is a conservation and reclamation district created in
1937 as a political subdivision of the State of Texas.2 The River Authority has many
responsibilities, including “storing, controlling, and conserving storm and floodwaters of the San
Jacinto River and its tributaries.”3
In 1973, the River Authority completed the construction of an earthen dam across the
West Fork of the San Jacinto River to create Lake Conroe. The River Authority has operated
1
Cause No. 19-0400, San Jacinto River Auth. v. Vicente Medina, Ashley Medina, and Aris Antoniou; Cause
No. 19-0401, San Jacinto River Auth. v. Michael A. Burney, Ginger R. Burney, Charles A. Casey, Maureen
S. Casey, John M. Daniel, Carolyn F. Daniel, Robert C. Miles, Sherry K. Miles, Jack L. Nowlin, Linda S.
Nowlin, Barry L. Shepherd, Becky A. Shepherd, Charles H.F. Wherry, Diane S. Wherry, Rodney M. Wolf,
and Nancy L. Wolf; and Cause No. 19-0402, San Jacinto River Auth. v. Charles J. Argento, Katharine
Argento, Kristofer D. Buchan, Melissa Buchan, Brandon Burgess, Diane Burgess, Jeff Ensley, Anne Ensley,
John Faulkinberry, Laurie D. Faulkinberry, John R. Freeman, Barbara Freeman, Kurt V. Huseman,
Debbie L. Huseman, William E. Lange, Jennifer Wood Lange, David L. Miller, Sally T. Miller, Willaim J.
Napier, Jr., Christine D. Napier, James R. Revel, Louise W. Revel, Bernard F. Ryan, Cecilia M. Ryan,
Dana M. Stegall, Danny C. Stegall, Todd R. Sumner, and Kimberly A. Sumner.
2
Act of May 12, 1937, 45th Leg., R.S., ch. 426, § 1, 1937 Tex. Gen. Laws 861, 861 (creating the San
Jacinto River Conservation and Reclamation District). The District was renamed the “San Jacinto River
Authority” in 1951. Act of May 14, 1951, 52nd Leg., R.S., ch. 366, § 1, 1951 Tex. Gen. Laws 617, 617.
3
Act of May 12, 1937, 45th Leg., R.S., ch. 426, § 3(c), 1937 Tex. Gen. Laws 861, 862.
3
and maintained the lake and dam since that time. The dam is about thirty miles north of the
property owners’ homes and properties.
The property owners allege that during Hurricane Harvey in late August and early
September 2017, the River Authority released rising water from Lake Conroe into the West Fork
of the San Jacinto River, causing or exacerbating the downstream flooding of their properties.
They seek damages from the River Authority in three separate lawsuits in Harris County district
courts. Each suit alleges takings claims under both the Texas Constitution4 and the Private Real
Property Rights Preservation Act, which is codified as Chapter 2007 of the Texas Government
Code.5
The River Authority filed Rule 91a motions to dismiss the property owners’ suits on
grounds of governmental immunity. See TEX. R. CIV. P. 91a. The district courts denied the
motions, and the River Authority appealed. See TEX. CIV. PRAC. & REM. CODE § 51.014(a)(8)
(authorizing an interlocutory appeal from an order on the government’s jurisdictional plea). In
that appeal, the River Authority raised a new jurisdictional argument, asserting that the county
civil courts at law in Harris County possessed exclusive, original jurisdiction over eminent
domain proceedings. See TEX. GOV’T CODE § 25.1032(c) (“A county civil court at law has
exclusive jurisdiction in Harris County of eminent domain proceedings, both statutory and
inverse.”).
The court of appeals agreed that the district courts of Harris County lacked jurisdiction
over the property owners’ inverse-condemnation claims and dismissed them without prejudice to
4
See TEX. CONST. art. I, § 17 (“No person’s property shall be taken, damaged, or destroyed for or applied to
public use without adequate compensation . . .”).
5
See TEX. GOV’T CODE § 2007.021 (authorizing suit to determine whether a taking has occurred under
Chapter 2007).
4
refile in the proper court. 570 S.W.3d at 838–39. Concluding that the district courts otherwise
possessed jurisdiction to determine the property owners’ statutory takings claims under Chapter
2007, the court of appeals affirmed the trial courts’ decision not to dismiss them. Id. at 839; see
also TEX. GOV’T CODE § 2007.021(a) (stating that takings claims under the chapter “must be
filed in a district court”). The River Authority’s petition for review to this Court complains that
the appellate court erred in not also dismissing the property owners’ statutory claims because the
taking alleged in their pleadings is outside Chapter 2007’s scope and limited waiver of sovereign
immunity.
II
Sovereign and governmental immunity protect the state and its political subdivisions,
respectively, from suit and liability absent the state’s express waiver. Rusk State Hosp. v. Black,
392 S.W.3d 88, 93 (Tex. 2012). Chapter 2007’s Property Rights Act waives that immunity “to
the extent of liability created by this chapter” by authorizing a property owner to bring suit “to
determine whether the governmental action of a political subdivision results in a taking under
this chapter.” TEX. GOV’T CODE §§ 2007.004(a), .021(a). The Act defines the term “taking” to
include governmental actions compensable as takings under the state and federal constitutions,
as well as less intrusive governmental actions that cause “a reduction of at least 25 percent in the
market value of the affected private real property.” Id. § 2007.002(5). The Property Rights Act
further enumerates the governmental actions to which it applies, while specifying fourteen
governmental actions to which it does not apply. Id. § 2007.003.
The River Authority makes a twofold argument that the Act’s waiver of governmental
immunity does not apply to its decision to release water from the Lake Conroe reservoir. First, it
5
contends that the Act applies only to regulatory takings and not the physical taking alleged by
the property owners; that is, the flooding allegedly caused by the River Authority. Alternatively,
the Authority maintains that even if the Act might be construed to cover a physical taking, its
actions here are nevertheless excluded because they were responsive to “a grave and immediate
threat to life and property.” See id. § 2007.003(b)(7). We consider these arguments in turn.
III
The River Authority contends that Chapter 2007 applies to regulatory takings only.
Takings may be classified as either physical or regulatory. Tarrant Reg’l Water Dist. v. Gragg,
151 S.W.3d 546, 554 (Tex. 2004). A physical taking occurs when the government literally takes
property from its owner, such as when it “authorizes an unwarranted physical occupation of an
individual’s property.” Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 933 (Tex. 1998). A
regulatory taking occurs when the government restricts a property owner’s rights to such an
extent as to become the functional equivalent of a physical seizure. Hearts Bluff Game Ranch,
Inc. v. State, 381 S.W.3d 468, 490 (Tex. 2012). The River Authority maintains that a fair
reading of the chapter indicates (1) that the liability created here is only for regulatory takings
(not the physical taking alleged in the property owners’ pleadings) and (2) that governmental
immunity is waived only for suits to invalidate and rescind such regulations.
The court of appeals disagreed. It “reject[ed] the River Authority’s contention that
Chapter 2007 applies only to regulatory takings and does not apply to physical takings, such as
flooding,” noting that “the statute expressly applies to a governmental action ‘that imposes a
physical invasion . . . of private real property.’” 570 S.W.3d at 832 (quoting TEX. GOV’T CODE
§ 2007.003(a)(2)). The court relied further on the chapter’s broad definition of “taking.” That
6
definition includes both regulatory and physical takings. See id. at 831 (noting the inclusion of
compensable takings under both the state and federal constitutions in the statutory definition).
The court accordingly concluded that the property owners’ allegations of a physical taking were
sufficient to invoke the chapter’s waiver of governmental immunity. Id. at 832.
The River Authority maintains that the court of appeals has misinterpreted the physical-
invasion provision to expand the chapter’s scope to physical takings. It concedes, however, that
governmental actions that impose a “physical invasion” of real property can refer to either a
physical or regulatory taking. But in the context of this statute, it reasonably refers only to the
latter, according to the River Authority.
The statute states that the chapter “applies only to the following governmental actions:”
(1) the adoption or issuance of an ordinance, rule, regulatory requirement,
resolution, policy, guideline, or similar measure;
(2) an action that imposes a physical invasion or requires a dedication or exaction
of private real property;
(3) an action by a municipality that has effect in the extraterritorial jurisdiction of
the municipality, excluding annexation, and that enacts or enforces an ordinance,
rule, regulation, or plan that does not impose identical requirements or restrictions
in the entire extraterritorial jurisdiction of the municipality; and
(4) enforcement of a governmental action listed in Subdivisions (1) through (3),
whether the enforcement of the governmental action is accomplished through the
use of permitting, citations, orders, judicial or quasi-judicial proceedings, or other
similar means.
TEX. GOV’T CODE § 2007.003(a)(1)–(4) (emphasis added). Because each action on the list can
refer to a regulatory taking, the River Authority argues that “physical invasion” should be
interpreted similarly and not as an outlier, different in type from the other enumerated actions.
Although a physical invasion can refer to either a physical or regulatory taking, the River
7
Authority contends that the words here refer only to regulatory takings, like the actions of
“dedication” or “exaction,” which appear along with physical invasion in Section
2007.003(a)(2). See Hearts Bluff Game Ranch, 381 S.W.3d at 477 n.20 (referring to the terms
exaction and dedication as “somewhat distinct types of regulatory takings matters”). Moreover,
interpreting “physical invasion” to reference a regulatory taking only is consistent with the other
enumerated governmental actions, which the River Authority submits are also regulatory in
nature. See TEX. GOV’T CODE § 2007.003(a)(1), (3). Finally, the River Authority observes that
“the text does not include the primary mode for physical takings: a condemnation petition filed
in court,” citing section 21.012 of the Texas Property Code.
Indeed, it does not. In fact, the chapter expressly excludes formal condemnation
proceedings from its scope. See TEX. GOV’T CODE § 2007.003(b)(8) (excluding “a formal
exercise of the power of eminent domain” from the chapter). Condemnation is the formal
process by which private property is taken for a public use without the owner’s consent, but on
the payment of adequate compensation. See TEX. PROP. CODE § 21.012 (stating the
requirements for a condemnation petition); 17 WILLIAM V. DORSANEO III, TEXAS LITIGATION
GUIDE §§ 261.40–.47 (2020) (discussing procedure for exercising eminent domain power).
When the government takes or damages property without first initiating formal condemnation
proceedings, however, the owner of private property may bring a common-law action for inverse
condemnation. State v. Brownlow, 319 S.W.3d 649, 652 (Tex. 2010) (citing Westgate, Ltd. v.
State, 843 S.W.2d 448, 452 (Tex. 1992)). The action is referred to as inverse because the
property owner initiates a common-law action to recover compensation for a taking that has
already occurred instead of the government initiating a formal statutory proceeding to determine
8
appropriate compensation for a prospective taking. City of Dallas v. Stewart, 361 S.W.3d 562,
567 (Tex. 2012). But as noted, Chapter 2007 expressly excludes formal condemnation
proceedings. TEX. GOV’T CODE § 2007.003(b)(8). It does not similarly exclude claims for
inverse condemnation.
The property owners argue that the exclusion of formal condemnation proceedings from
the chapter, which the River Authority describes as “the primary mode for physical takings,”
confirms that Chapter 2007’s application is not limited to regulatory takings. They submit that
this exclusion is rendered superfluous under the River Authority’s proposed limitation of the
chapter to regulatory matters. It merely excludes that which the River Authority maintains is not
included to begin with. The property owners argue that the exclusion has meaning only if
Chapter 2007 otherwise applies to non-regulatory physical invasions that result in a physical
taking of real property. The Legislature could have excluded all non-regulatory physical
invasions of real property from the chapter’s scope, just as it excluded the “formal exercise of
the power of eminent domain” and thirteen other actions, many of which the property owners
submit also include non-regulatory, physical takings. See, e.g., id. § 2007.003(b)(2), (3), (6), (7),
(8), and (13).
The property owners also maintain that the statute’s physical-invasion provision
expressly states what these statutory exclusions imply, that the chapter does not apply solely to
regulatory takings. The chapter instead applies to non-regulatory governmental actions, such as
the water release from the reservoir that flooded their properties and thus “impose[d] a physical
invasion . . . of private real property.” Id. § 2007.003(a)(2). The property owners conclude that
construing the physical-invasion provision to include physical takings gives meaning to that text
9
and harmonizes it with the chapter’s suit-authorization language, id. § 2007.021(a), and taking’s
definition, id. § 2007.002(5). We agree.
The chapter provides that private property owners may bring suit to determine whether
governmental action results in a “taking under this chapter.” Id. § 2007.021(a). “Taking” is
defined broadly to include governmental actions that satisfy the takings standard under the
federal or state constitution or that reduce the market value of the affected property by at least 25
percent. Id. § 2007.002(5). A compensable taking under the state or federal constitution can be
physical or regulatory. Gragg, 151 S.W.3d at 554. And we have held under somewhat similar
circumstances that a political subdivision’s decision to flood downstream properties for a public
purpose can be compensable as a physical taking under the Texas Constitution. Id. at 554–55
(citing TEX. CONST. art. I, § 17). Chapter 2007 thus authorizes a statutory takings suit for
governmental actions that constitute takings under the state or federal constitution (either
physical or regulatory) or that cause a reduction of at least 25 percent in market value.
The River Authority does not deny the breadth of these provisions, nor does it deny that
“physical invasion” may refer to a physical taking. Rather, it argues that a physical invasion can
also be the consequence of a regulatory taking and that we should construe the language here to
reference only that type of taking because that construction better fits the statutory scheme and
its remedies. For example, Subchapter C of the statute envisions an orderly process through
which a political subdivision proposes a covered governmental action that may result in a taking,
prepares a written takings impact assessment of that action, and provides a 30-day public notice
of its intentions. TEX. GOV’T CODE §§ 2007.042 (public notice), .043 (takings impact
assessment). If the governmental action is found to be a taking under the chapter, the “property
10
owner is only entitled to, and the governmental entity is only liable for, invalidation of the
governmental action.” Id. § 2007.023. The chapter does not obligate the governmental entity to
pay damages. Instead, the River Authority submits that this statutory scheme establishes a new
procedure for preventing excessive regulatory takings before they occur, allowing for a single
remedy: a judgment rescinding the challenged action. Id. § 2007.024(a). It submits that these
requirements cannot be satisfied during a tropical storm and that the chapter’s remedy is of no
benefit to the property owners, in any event, because they seek only damages caused by the
flooding.
The Attorney General makes a similar argument as amicus curiae in support of the River
Authority’s petition for review. The Attorney General argues that the property owners lack
standing under Chapter 2007 because the chapter offers them no prospect of redress. The only
relief the property owners seek is an award of damages, and that is the only relief that can
redress their alleged injuries. But the chapter does not include the judicial power to award
damages. The chapter’s only remedy for a taking is invalidation and rescission, which, the
Attorney General argues, is not possible here. The River Authority echoes this sentiment. It
argues that Chapter 2007’s declaratory remedies serve a purpose only when a regulatory taking
can be undone and that here it cannot rescind the floodwaters back into the reservoir.
We agree that Chapter 2007 does not obligate a governmental entity to pay damages. We
also agree that rescission is not what the property owners seek. But we do not agree that
rescission is the only remedy available to a prevailing property owner under the chapter.
Chapter 2007 plainly provides for more than just rescission. See id. § 2007.006(a) (“The
remedies provided by this chapter are in addition to other procedures or remedies provide by
11
law.” (emphasis added)). For example, the property owners may sue to adjudicate whether
governmental actions result in a taking under the chapter, id. § 2007.021; they are entitled to a
“takings” determination made by the trier of fact, id. § 2007.023(b); they are entitled to
invalidation of the governmental action resulting in the taking, id.; they are entitled to a
judgment that “include[s] a fact finding that determines the monetary damages suffered by the
private real property owner as a result of the taking,” id. § 2007.024(b); and they are entitled to
an award of attorneys’ fees and costs, if they prevail, id. § 2007.026(a). Thus, even though
damages are not generally available6 under the chapter, the statute does provide additional relief
beyond that available to the property owners at common law for inverse condemnation.
The Dissent, however, would relegate the property owners to their constitutional remedy
under the takings clause and dismiss their statutory claims for lack of jurisdiction. Post at ___.
The Dissent submits that the most the property owners can hope to achieve under their statutory
claim is a judicial determination that the flooding of their homes was a taking and the cause of
an identified amount of damages. Id. at ___. It describes these determinations as “abstract” and
of “no practical effect” without the government’s consent. Id. at ___. But the government has
consented to this suit and to liability, and whether it chooses to pay the amount of damages
determined under the statute is not a matter of jurisdictional concern.
The state has waived its immunity from suit and liability “to the extent of liability created
by [Chapter 2007]” and has authorized suits against its political subdivisions to determine
“whether the governmental action of a political subdivision results in a taking under this
6
A judgment, final decision, or order under Chapter 2007, Subchapter B, must include a fact finding of the
monetary damages caused by the taking, but the governmental entity is not obligated to pay those damages.
TEX. GOV’T CODE § 2007.024(b). If the governmental entity does not wish to rescind the action that caused
the taking, however, it “may elect to pay the damages as compensation” and its “immunity to liability is
waived to the extent the governmental entity elects to pay.” Id. § 2007.024(c).
12
chapter.” TEX. GOV’T CODE §§ 2007.004(a), .021(a). If the property owner can establish a
taking under the statutory definition, the property owner is entitled to invalidation of the
governmental action resulting in the taking. Id. § 2007.023(b). The chapter further provides for
alternative remedies of either rescission or damages for the taking. Id. § 2007.024. Damages are
payable at the governmental entity’s election from funds appropriated to it. Id. § 2007.024(c),
(f).
Because the Dissent views the government’s election to pay damages as unlikely and the
rescission of prior governmental action as inconsequential, it concludes that any judgment the
court might render would be “merely advisory” and intrude on the other branches of
government. Post at ___ (citing Meyers v. JDC/Firethorne, Ltd., 548 S.W.3d 477, 488 (Tex.
2018)). But it is the Legislature that has waived immunity from suit and liability for statutory
takings and provided for these alternative remedies. That the government might decline to pay
damages is no reason to dismiss the pending suits on jurisdictional grounds. Even if the statute
had not waived immunity from liability to determine these damages, that would not affect a
court’s jurisdiction. Tex. Dep’t of Transp. v. Jones, 8 S.W.3d 636, 638 (Tex. 1999) (per curiam)
(explaining that immunity from liability is an “affirmative defens[e]” that “does not affect a
court’s jurisdiction to hear a case”). The Dissent’s contrary rule would nullify many legislative
grants of permission to sue, as any resulting suit against the government would fail the Dissent’s
redressability test if the government retains immunity from liability or limits collectability or
enforcement of a judgment. See, e.g., TEX. CIV. PRAC. & REM. CODE §§ 101.107(a), 101.109,
107.002(b), 114.001; Fed. Sign v. Tex. S. Univ., 951 S.W.2d 401, 414 (Tex. 1997) (Hecht, J.,
13
concurring) (noting that even without “governmental immunity from contract suits, successful
plaintiffs still could not be paid without legislative appropriation”).
Nor is it a reason to dismiss the statutory claim merely on the possibility that the
constitution may provide the desired remedy. The taking defined by the chapter is broader than
that cognizable under the constitution, and the remedy the statute provides may be all that is
available to some of the property owners in these suits.
The statutory remedies are cumulative of other law but, of course, cannot be used to
recover twice “for the same economic loss.” TEX. GOV’T CODE § 2007.006(b). Moreover, the
definition of “taking” does not say that the offending governmental action must be rescindable,
continuous, or recurring, but instead provides that it may be actionable even though temporary or
permanent. Id. § 2007.002(5)(A). Thus, we conclude that the statute’s rescission remedy, while
most relevant to a regulatory taking, does not otherwise modify or limit the scope of an
actionable taking under the chapter or provide the basis for dismissal on jurisdictional grounds.
Similarly, the requirements and formal procedures that apply to proposed governmental
action under Subchapter C of the statute do not limit the chapter’s scope to regulatory takings
only. Subchapter C may be concerned with regulatory matters, providing as it does for a takings
impact assessment and public notice of proposed governmental action. But Subchapter C
independently provides for a suit to invalidate governmental action, stating that “[a]
governmental action requiring a takings impact assessment is void if an assessment is not
prepared.” Id. § 2007.044(a) (emphasis added). The subchapter authorizes an affected property
owner to “bring suit for a declaration of the invalidity of the governmental action” and again
provides for an award of reasonable attorney’s fees and court costs to a prevailing property
14
owner. Id. § 2007.044(a), (c). The subchapter suggests, however, that not every governmental
action or taking under Chapter 2007 implicates these requirements. Indeed, the subchapter’s title
states that its requirements are for “proposed governmental action.”
We conclude that Chapter 2007 does not expressly limit its application to regulatory
takings nor does it expressly exclude all physical takings from its terms. We note further that
Subchapter C, titled “Requirements For Proposed Governmental Action,” focuses on prospective
regulatory takings and authorizes an affected property owner to “bring suit for a declaration of
the invalidity of the governmental action” if the required takings impact assessment has not been
done. Id. § 2007.044(a). The property owners obviously do not seek relief under that
subchapter.
Their suit is instead under Subchapter B to determine whether the physical invasion of
their properties by the River Authority’s release of floodwaters constitutes a taking. Id.
§ 2007.021(a). As we have observed: “The Property Rights Act creates two causes of action in
favor of real property owners: (1) a statutory cause of action for taking; and (2) a cause of action
based on governmental action taken without preparing a TIA [takings impact assessment], if the
Property Rights Act requires a TIA.” Bragg v. Edwards Aquifer Auth., 71 S.W.3d 729, 734–35
(Tex. 2002). Subchapter B authorizes a private real property owner to “bring suit under this
subchapter to determine whether the governmental action of a political subdivision results in a
taking” under the statute. TEX. GOV’T CODE § 2007.021(a). The statute’s “General Provisions”
in Subchapter A define “taking” to include both physical and regulatory takings, and
governmental action to include, among other things, the “physical invasion” of property, which
the parties agree may refer to either type of taking. Id. §§ 2007.002(5), .003(a)(2).
15
The River Authority nevertheless maintains that the lower courts should have dismissed
the property owners’ statutory claims because Chapter 2007 does not waive governmental
immunity for physical takings, which is all that the property owners have alleged. The court of
appeals rejected that notion, and we agree that the chapter does not apply exclusively to
regulatory takings. If that were true, no need would exist for several of the chapter’s exclusions,
including the two that the River Authority argues must apply to the actions it took during the
Hurricane Harvey weather emergency. “As a general principle, we eschew constructions of a
statute that render any statutory language meaningless or superfluous.” City of Dallas v. TCI W.
End, Inc., 463 S.W.3d 53, 57 (Tex. 2015) (per curiam); see Spence v. Fenchler, 180 S.W. 597,
601 (Tex. 1915) (“It is an elementary rule of construction that, when possible to do so, effect
must be given to every sentence, clause, and word of a statute so that no part thereof be rendered
superfluous or inoperative.”).
IV
We next consider the application of the statutory exceptions raised by the River
Authority in the context of its motion to dismiss under Texas Rule of Civil Procedure 91a.
Chapter 2007 expressly excludes fourteen types of government actions, two of which
apply here, according to the River Authority. See TEX. GOV’T CODE § 2007.003(b) (listing the
governmental actions excluded from the chapter). The chapter does not apply to:
(7) an action taken out of a reasonable good faith belief that the action is
necessary to prevent a grave and immediate threat to life or property;
***
(13) an action that: (A) is taken in response to a real and substantial threat to
public health and safety; (B) is designed to significantly advance the health and
16
safety purpose; and (C) does not impose a greater burden than is necessary to
achieve the health and safety purpose[.]
Id. § 2007(b)(7), (13). Because Chapter 2007 excludes certain emergency situations and
responses, the River Authority argues that its actions here, which were responsive to a weather
emergency, preclude the property owners’ statutory claims. It concludes that the statutory
claims should therefore have been dismissed under Rule 91a, rather than remanded to the trial
court.
Rule 91a provides that a party “may move to dismiss a cause of action on the grounds
that it has no basis in law or fact.” TEX. R. CIV. P. 91a.1. “A cause of action has no basis in law
if the allegations, taken as true, together with inferences reasonably drawn from them, do not
entitle the claimant to the relief sought. A cause of action has no basis in fact if no reasonable
person could believe the facts pleaded.” Id. In ruling on a Rule 91a motion, a court “may not
consider evidence . . . and must decide the motion based solely on the pleading of the cause of
action.” Id. 91a.6. We review the merits of a Rule 91a motion de novo. City of Dallas v.
Sanchez, 494 S.W.3d 722, 724 (Tex. 2016) (per curiam).
The River Authority argues that, as a matter of law and common sense, no reasonable
person could believe Hurricane Harvey was not “a grave and immediate threat to life or
property” or “a real and substantial threat to public health and safety.” TEX. GOV’T CODE
§ 2007(b)(7), (13). It asks the Court to take judicial notice of the disaster declarations made by
the President and Governor to establish that the River Authority was reacting to an emergency
situation during the time it allegedly flooded the property owners’ homes. The court of appeals
declined to take judicial notice of the River Authority’s proffered evidence, noting that Rule 91a
expressly prohibits a court’s consideration of evidence and expressly requires that the motion be
17
decided on the pleadings. 570 S.W.3d at 831. But even without judicial notice, the River
Authority maintains that the property owners’ pleadings similarly demonstrate that Hurricane
Harvey presented an emergency that threatened life and property by indicating that the River
Authority’s purpose in releasing the water was to protect the integrity of the dam, maintain
control over its flood gates, and protect upstream properties from flooding, among other things.
The property owners respond that the factual allegations in their pleadings do not
conclusively establish either exclusion. They describe the statutory exclusions as affirmative
defenses, which under Rule 91a must “be conclusively established by the facts in a plaintiff’s
petition.” Bethel v. Quilling, Selander, Lownds, Winslett & Moser, P.C., 595 S.W.3d 651, 656
(Tex. 2020). They submit that these exclusions raise inherent fact questions, which their
pleadings do not resolve. For example, the pleadings do not conclusively establish the (b)(7)
exclusion because the property owners have never asserted that the River Authority released
water as it did with a reasonable good faith belief that doing so was necessary to prevent a grave
and imminent threat to the dam’s structure and operation. To the contrary, their pleadings
indicate that the River Authority knew the dam could withstand much more rainfall and much
higher inflow rates than the watershed rainfall and inflow rates experienced during Harvey and
that it also knew the water from Harvey could have been released at much slower rates without
damaging the dam or losing control of its floodgates. The River Authority allegedly knew this
from another weather event decades earlier, which, according to the property owners, dropped
almost twice as much rain in the watershed over a similar four-day period, with corresponding
larger peak inflows and yet resulted in much slower and less damaging water release rates.
Based on these allegations, the property owners submit a reasonable person could conclude that
18
the River Authority did not have a reasonable good faith belief that it was necessary to release
water as it did to prevent a grave and immediate threat to life or property.
The property owners further maintain that the River Authority knew it was unnecessary
to release water as it did to “prevent a grave and immediate threat to” the dam and its floodgates
because Lake Conroe had the capacity to store additional floodwaters until Harvey passed. In
this regard, they note the existence of a flowage easement, which allows the River Authority to
store water up to 207 feet above mean sea level “during storm events.” The recorded easement
“notif[ies] landowners that any structures below this elevation are subject to being flooded.”
According to the pleadings, Lake Conroe’s water or pool level did not reach 207 feet
above mean sea level during the storm. After the water reached its highest level of 206.24 feet,
the River Authority began releasing water at record flow rates, reducing the pool level by about
three and one-half feet over forty-eight hours and allegedly causing devastating flooding
downstream. The property owners thus complain that the River Authority did not use all
available capacity to store floodwaters during Harvey, even though it could have done so without
threatening the dam’s structural integrity. They submit that, as with the allegations regarding
rainfall and flow rates, a reasonable person could conclude that the River Authority did not have
a reasonable good faith belief that it was necessary to release water as it did to prevent a grave
and immediate threat to life or property, based on their pleadings.
The River Authority, however, reads the plaintiffs’ pleadings as an admission of its own
good faith. It argues that the plaintiffs’ pleadings concede that the River Authority released
water “to relieve pressure on the dam” and “protect its stability and integrity” and thus
conclusively establish its good faith in the matter.
19
Not so, the property owners respond. They submit that these phrases in their pleadings
merely refer to the various public purposes supposedly furthered by the River Authority’s
decision to flood their downstream properties. The court of appeals agreed, summarizing these
various public purpose allegations from the pleadings in its opinion:
Regarding the public-use element, the homeowners alleged that in the face of
Hurricane Harvey and other circumstances, the River Authority faced a choice.
The River Authority could do nothing as the water level rose and accept all the
associated risks. Or it could release floodwaters that it knew would cause
“devastating flooding downstream” with “catastrophic consequences.” The River
Authority “chose the latter option and intentionally, knowingly, affirmatively and
consciously inundated, flooded, took, inversely condemned and sacrificed” the
homeowners' property for the greater public good.
The homeowners also alleged that the River Authority’s intentional, knowing,
affirmative, and conscious acts, conduct, and decisions were done for public use.
They alleged that the River Authority’s management and operation of the lake,
dam, and related infrastructure, combined with its release of water between late
August and early September 2017, was done for public use because the
governmental actions protected the stability and integrity of the dam, its earthen
embankment, and other infrastructure; ensured that the lake would continue to be
available for use as a reservoir for critical freshwater storage and for recreational
activities and sporting uses like boating and fishing once the storm and its effects
had passed; protected and spared homes and other properties on the lake and
upstream from flooding; minimized the danger to the public by keeping docks,
bulkheads, small islands, and other structures unsubmerged for as long as
possible; minimized the danger to the public associated with electrical outlets and
equipment coming into contact with water; and enabled the lake, adjacent parks,
and adjacent roads to reopen and become fully operational as quickly as possible
for the public’s benefit.
570 S.W.3d at 837.
The property owners submit that their pleadings do not establish that the River
Authority’s actions met either the “reasonable good faith belief” test of (b)(7) or the measured-
and-appropriate response required by (b)(13). Rather, they submit that the River Authority’s
reasonable good faith belief that it was necessary to release the water as it did or whether its
20
actions imposed a greater burden than necessary to protect public safety are fact questions which
their pleadings do not answer. See TEX. GOV’T CODE § 2007.003(b)(7) (excluding “an action
taken out of a reasonable good faith belief that the action is necessary to prevent a grave and
immediate threat”); id. § 2007.003(b)(13) (requiring that the governmental action “not impose a
greater burden than is necessary to achieve . . . safety”). The property owners’ pleadings thus
put at issue whether it was reasonable or necessary for the River Authority to release the
floodwaters as it did.
The pleadings assert that Lake Conroe’s water level can exceed 207 feet above mean sea
level for a short time without threatening the dam’s structural integrity when necessary to
minimize risk to life and property on both sides of the dam. The pleadings further compare
Harvey to another slow-moving storm decades earlier that the property owners allege produced
more rainfall and higher inflow rates, but which the River Authority managed with slower
release rates. The pleadings also allege that the River Authority had additional capacity to store
Harvey’s floodwaters without harm to the dam and note the existence of upstream flood
easements for water levels at 207 feet above mean sea level, ostensibly for this purpose. The
property owners submit that a reasonable person might therefore conclude that the River
Authority could have stored more water and released it more slowly, while protecting the dam’s
structure and operations. The pleadings thus suggest that the River Authority’s experience with
the prior extreme weather event bear on the application of these exclusions and the
reasonableness of the burden cast on the downstream property owners.
The River Authority vividly responds that “[d]odging a bullet once does not make later
gunfire any less life-threatening.” Thus, a disaster avoided in a previous storm does not allow
21
reasonable persons to believe Harvey posed no threat to life or property. While that may be true,
neither does it establish as a matter of law the elements of the two exclusions at issue. The
pleadings indicate that the River Authority’s knowledge and past experiences inform the issues
of good faith and reasonableness entwined in the two exclusions. The parties have not briefed
the meaning of good faith in the context of this statute, and we accordingly express no opinion
on the subject. We hold only that the property owners’ pleadings do not conclusively establish
either statutory exception, which is what Rule 91a demands. The lower courts accordingly did
not err in denying the Rule 91a motions to dismiss.
*****
In summary, we hold that Chapter 2007 creates liability and waives governmental
immunity for two causes of action: (1) a statutory takings claim under Subchapter B and (2) a
suit to rescind proposed governmental action under Subchapter C. We hold further that the
statutory takings claim may include a physical taking, such as the flooding alleged by the
property owners, and is not limited solely to regulatory takings. Finally, we conclude that
statutory exceptions to liability under the chapter are not established by the property owner’s
pleadings and that the court of appeals therefore did not err in affirming the trial courts’ orders,
which denied the River Authority’s motions to dismiss under Rule 91a.
The judgment of the court of appeals is affirmed.
_____________________
John P. Devine
Justice
OPINION DELIVERED: April 16, 2021
22