San Jacinto River Authority v. Edgar Gonzalez

Reversed and Rendered and Opinion filed October 6, 2022.
In The
Fourteenth Court of Appeals
NO. 14-20-00414-CV
SAN JACINTO RIVER AUTHORITY, Appellant
V.
EDGAR GONZALEZ, ET AL., Appellees
On Appeal from the County Civil Court at Law No. 2
Harris County, Texas
Trial Court Cause No. 1137397
OPINION
This case involves takings claims by 85 plaintiffs under the Texas
Constitution against a river authority based on the authority’s release of water from
Lake Conroe into the San Jacinto River during Hurricane Harvey that allegedly
caused flooding that allegedly damaged the plaintiffs’ homes. The authority
challenges the trial court’s denial of its plea to the jurisdiction as to the takings
claims and asserts that the plaintiffs have not shown a waiver of the authority’s
governmental immunity as to the plaintiffs’ other claims. We reverse and render.
I. FACTUAL AND PROCEDURAL BACKGROUND
Hurricane Harvey and the resulting flooding in southeast Texas has resulted
in multiple lawsuits and appellate decisions. In this case, we deal with claims
involving the release of water from Lake Conroe.
Appellees/plaintiffs Edgar Gonzalez and 84 other individuals1 (collectively
the “Gonzalez Parties”) filed this suit against appellant/defendant San Jacinto
River Authority (the “Authority”). The Gonzalez Parties allege that they live in
homes on a total of 61 different properties. They assert that the Authority is a
governmental entity that maintains Lake Conroe and the Lake Conroe Dam. In late
August 2017, Hurricane Harvey made landfall along Texas’s Gulf Coast and
produced high rainfall amounts in Texas, including in Harris and Montgomery
counties. The Gonzalez Parties allege that by about 12:30 a.m. on August 27, 2017,
Hurricane Harvey had dumped so much water into Lake Conroe that the Authority
decided to open the Lake Conroe Dam to release water from the lake. According to
the Gonzalez Parties, over the next three days, the release rate of water from Lake
Conroe through the dam set and broke new records, eventually culminating in a
1
The names of all of the Gonzalez Parties are as follows: Edgar Gonzalez, Monica Gonzalez,
Lisa Agnew, Darolyn Butler, Bertha E. Stewart, Jose O. Erazo, Carmen Rodriguez de Erazo,
Jose Marroquin, Rebecca Hernandez, Eli Ortiz, Emily Ortiz, Orlando Locayo, Matilde Locayo,
Ronnie Moors, Ingrid Plevka, Priscilla Zamora, Lawrence Culton, Shanikka Culton, Jordan
Morales, Donna Brown, John Clancy, John Kish, Peggy Jones, Andre Hatter, Mary Hatter,
Harold Cormier, Wanda Cormier, Manuel Jackson, Joseph Joe, Tawania Joe, Dectrick Edwards,
Samantha Edwards, Preston Davis, Chiquita Davis, Kenny Coston, Golden Coston, Danesa
Samuels, Tamara Curl, Alma Lagunas, Charles McFarland, Dionne McFarland, Walter Johnson,
Jacquiline Johnson, Shonda Espinoza, Lawrence Duhe, Natasha Atkins, Israel Cervantes,
Amanda Cervantes, Staci McFarland, Warner Chandler, Amber Chandler, Eileen Shim-
Agimudie, Sam Al Hawamdeh, Husam Al Hawamdeh, Rene Tario, Juan Suarez, Regina Freberg,
Billy West, Ramon Mosqueda, Maria Mosqueda, Mark Melchor, Gloria Melchor, Tana Lynne
Gilliard, Robert Henrickson, Carl Williams, Louise Williams, Kishawna Wright, James Bullock,
Hugo Santos, Katherine Sells, Cilica Edwards, Natasha Gates, John Giovanelli, Anthony Limon,
Claudia Ledezma, Marely Ledezma, Viliami Feletoa, Rosemarie Parrino, Alicia Lewis, Sunday
Eluyemi, Armida Carballo, Charles Rogers, Josie Rogers, Maria Rauda, and Shamir Westbrooks.
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release rate of 79,100 cubic feet of water per second (“cfs”), surpassing the record
set in 1994. The Gonzalez Parties contend that as a result of these record-breaking
releases from Lake Conroe, water from Lake Conroe caused the Gonzalez Parties’
homes to flood, resulting in severe property damage.
The Gonzalez Parties have asserted the following claims against the
Authority: (1) an inverse-condemnation or takings claim under article I, section 17
of the Texas Constitution, (2) a nuisance claim, and (3) a purported claim for
grossly negligent maintenance and operation of the Lake Conroe Dam. The
Gonzalez Parties claim that their homes would not have flooded but for the water
released by the Authority from Lake Conroe.
The Gonzalez Parties allege that the Authority was aware that water releases
from Lake Conroe in 1994, 1998, 2001, 2002, 2015, and 2016 caused downstream
flooding in parts of Kingwood, Humble, and other places downstream of the Lake
Conroe Dam. The Gonzalez Parties allege that the Authority took their homes
intentionally.
The Gonzalez Parties acknowledge in their live petition that the Authority is
a governmental entity generally entitled to governmental immunity from suit;
however, the Gonzalez Parties assert the takings provision of the Texas
Constitution as a waiver of governmental immunity that allows them to receive just
compensation for the takings alleged in their petition. The Gonzalez Parties also
assert in their petition that governmental immunity does not shield the Authority
from liability for “intentional, non-negligent nuisance and gross negligence
relating to the improper maintenance of [the Authority’s] property.”
The Authority filed a plea to the jurisdiction asserting that its governmental
3
immunity barred all of the Gonzalez Parties’ claims (“Jurisdictional Plea”).2 The
Authority argued that the evidence before the trial court conclusively demonstrated
that the Gonzalez Parties cannot prove that the Authority caused a taking of any
property owned by one of the Gonzalez Parties. The Authority asserted that even if
no water had been released from the Lake Conroe Dam, each of the Gonzalez
Parties’ properties would have flooded during the Harvey storm event. The
Authority contended that the evidence negates the requisite intent element of the
Gonzalez Parties’ takings claims. According to the Authority, the undisputed
evidence shows that the Gonzalez Parties cannot demonstrate the Authority knew
or could have known that any release of water from the Lake Conroe Dam would
or was substantially certain to cause flooding on the specific, individual property of
any of the Gonzalez Parties, which the Authority contends is required to
successfully demonstrate a takings claim.
The Authority also challenged the Gonzalez Parties’ other two claims,
asserting that (1) absent a statutory waiver of immunity, a governmental entity is
immune from suit for a nuisance claim unless the claim rises to the level of a
constitutional taking under Article I, Section 17 of the Texas Constitution; (2)
governmental immunity bars any taking-by-nuisance claim for the same reasons
asserted by the Authority against the takings claim; (3) the Texas Tort Claims Act
does not waive the Authority’s governmental immunity; and (4) the only waiver of
governmental immunity relied on by the Gonzalez Parties is the takings provision
of the Texas Constitution.
The Authority attached to the Jurisdictional Plea (1) a declaration by Charles
2
Though a party may file a no-evidence motion for summary judgment challenging the trial
court’s subject-matter jurisdiction, the Authority did not do so in today’s case. See Town
of Shady Shores v. Swanson, 590 S.W.3d 544, 551–52 (Tex. 2019). Instead, the Authority
challenged the trial court’s subject-matter jurisdiction by a plea to the jurisdiction.
4
Gilman, Jr., the Authority’s Director of Water Resources and Flood Management,
(2) a declaration by Mark E. Forest, a hydrology expert retained by the Authority,
and (3) a declaration by Hector Olmos, a Vice President of Freese and Nichols,
Inc., a company that has provided consulting services to the Authority.
The Gonzalez Parties responded in opposition and submitted some evidence,
but they did not submit any expert testimony. The Gonzalez Parties asserted
various objections to the form of the Authority’s evidence, as well as objections
that Exhibits C-5 and C-7 attached to Forest’s declaration are conclusory. The trial
court signed an order in which it denied the Jurisdictional Plea only as to the
takings claim. The trial court did not rule on the Jurisdictional Plea as to the other
two claims, and the trial court did not rule on any of the Gonzalez Parties’
objections. The next day, the Authority filed a notice of appeal, perfecting this
interlocutory appeal under section 51.014(a)(8) of the Civil Practice and Remedies
Code and triggering the stay under section 51.014(b). See Tex. Civ. Prac. & Rem.
Code Ann. §§ 51.014(a)(8),(b) (West, Westlaw through 2021 C.S.). Two days later
the Gonzalez Parties filed a written request asking the trial court to rule on their
objections to the Authority’s evidence and objecting to the trial court’s alleged
refusal to rule on the objections. On the same day as the written request, the
Authority moved to strike the Gonzalez Parties’ filing based on the stay of all
proceedings triggered by the Authority’s appeal. Our record does not contain a
ruling from the trial court on the Gonzalez Parties’ objections to the Authority’s
evidence, on the request for such a ruling, or on the Authority’s motion to strike.
II. ISSUES AND ANALYSIS
The Authority is a conservation and reclamation district created in 1937 as a
political subdivision of the State of Texas. See Act of May 12, 1937, 45th Leg.,
R.S., ch. 426, § 1, 1937 Tex. Gen. Laws 861, 861 (creating the Authority and
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naming it the “San Jacinto River Conservation and Reclamation District”); Act of
May 14, 1951, 52nd Leg., R.S., ch. 366, § 1, 1951 Tex. Gen. Laws 617, 617
(renaming the Authority the “San Jacinto River Authority”); San Jacinto River
Auth. v. Medina, 627 S.W.3d 618, 621 (Tex. 2021). In 1973, the Authority
completed the construction of an earthen dam across the West Fork of the San
Jacinto River (the “Lake Conroe Dam”) to create Lake Conroe. See Medina, 627
S.W.3d at 621. The Authority has operated and maintained Lake Conroe and the
Lake Conroe Dam since that time. See id.
The Authority is a political subdivision of the State of Texas that generally is
entitled to governmental immunity. See Medina, 627 S.W.3d at 622. Governmental
immunity from suit defeats a trial court’s subject matter jurisdiction and thus
properly is asserted in a plea to the jurisdiction. See Olivares v. Brown & Gay
Engineering, Inc., 401 S.W.3d 363, 369 (Tex. App.—Houston [14th Dist.] 2013,
aff’d, 461 S.W.3d 117, 119 (Tex. 2015). We review de novo the trial court’s ruling
on a plea to the jurisdiction. Id.A. Did the trial court err in denying the Jurisdictional Plea as to the Gonzalez
Parties’ takings claims because the evidence proves as a matter of law that
the Gonzalez Parties cannot prove causation?
The Texas Constitution waives governmental immunity for a viable inverse-
condemnation or takings claim under article I, section 17 of the Texas
Constitution. See Tex. Const. art. I, § 17(a); El Dorado Land Co., L.P. v. City of
McKinney, 395 S.W.3d 798, 801 (Tex. 2013); Steele v. City of Houston, 603
S.W.2d 786, 791 (Tex. 1980). If a plaintiff cannot establish a viable takings claim
against a governmental entity, then there is no waiver of governmental immunity
under article I, section 17 of the Texas Constitution, and the trial court lacks
jurisdiction. See Tex. Const. art. I, § 17(a); Tex. Dep’t of Transp. v. A.P.I. Pipe &
Supply, LLC, 397 S.W.3d 162, 166 (Tex. 2013). Proximate cause is an essential
6
element of a takings claim. See Hearts Bluff Game Ranch, Inc. v. State, 381
S.W.3d 468, 483 (Tex. 2012). For a governmental entity to be liable for a takings
claim, the governmental entity’s intentional action must have been a proximate
cause of the taking or damaging of the claimant’s property. See State v. Hale, 146
S.W.2d 731, 736 (Tex. 1941). The determination of whether a taking has occurred
is not formulaic given the legal and factual complexities sometimes presented, and
this determination may turn on the confluence of particular circumstances. See
Harris County Flood Control Dist. v. Kerr, 499 S.W.3d 793, 806–07 (Tex. 2016).
In a plea to the jurisdiction, a party may challenge the pleadings or the
existence of jurisdictional facts. Tex. Dep’t of Parks & Wildlife v. Miranda, 133
S.W.3d 217, 226–27 (Tex. 2004). The Authority does not assert that the Gonzalez
Parties failed to properly plead a viable takings claim. Instead, as to the arguments
under the Authority’s first, second, and third issues, the Authority’s Jurisdictional
Plea challenged the existence of jurisdictional facts. The jurisdictional challenges
the Authority raises under these issues implicate the merits of the Gonzalez
Parties’ takings claims and the Jurisdictional Plea involves evidence. Therefore, we
review the evidence relevant to the jurisdictional challenge to determine if a fact
issue exists. Miranda, 133 S.W.3d at 227; In re K.D.H., 426 S.W.3d 879, 887
(Tex. App.—Houston [14th Dist.] 2014, no pet.). We take as true all evidence
favorable to the nonmovant, and we indulge every reasonable inference and
resolve any doubts in the nonmovant’s favor. Miranda, 133 S.W.3d at 228. If the
relevant evidence creates a fact question regarding the jurisdictional issue, then the
trial court cannot grant the plea to the jurisdiction, and the fact finder will resolve
the fact issue. Miranda, 133 S.W.3d at 227–28; In re K.D.H., 426 S.W.3d at 887.
However, if the evidence relevant to the jurisdictional issue is undisputed or fails
to raise a fact question on the jurisdictional issue, the trial court rules on the plea to
the jurisdiction as a matter of law. Miranda, 133 S.W.3d at 228; In re K.D.H., 426
7
S.W.3d at 887.
In its first issue, the Authority asks, “Did [the Gonzalez Parties] meet their
burden to raise a fact issue that the [Authority’s] release of water from Lake
Conroe Dam was a proximate cause of flooding of their homes, when (i) they do
not live downstream from the Dam, and (ii) offered no proof that their properties
flooded because of water from Lake Conroe?” The first issue refers to the
jurisdictional challenge in which the Authority argues that the Gonzalez Parties
cannot prove that the Authority’s release of water from Lake Conroe was a
proximate cause of any taking or damaging of the Gonzalez Parties’ property.
Thus, we review the evidence relevant to this jurisdictional issue to determine
whether it is undisputed or fails to raise a fact question. See Miranda, 133 S.W.3d
at 228; In re K.D.H., 426 S.W.3d at 887.
1. Various Arguments by the Authority
(a) Did water from Lake Conroe reach the Gonzalez Parties’
homes?
Under its first issue, the Authority asserts that it is physically impossible that
any of the molecules of water released from Lake Conroe during Harvey would
have reached any of the Gonzalez Parties’ homes because: (1) the Gonzalez Parties
live several miles up two different streams––Cypress Creek and Spring Creek; and
(2) to reach the Gonzalez Parties’ homes, water from Lake Conroe would have had
to flow 41 miles south to its juncture with these creeks, and then several miles
upstream against massive flooding coming the other way. In making these
assertions, the Authority seeks to negate the Gonzalez Parties’ allegation in their
live pleading that “[a]s a result of these record-breaking releases in the middle of a
major hurricane, water from Lake Conroe eventually reached the [the Gonzalez
Parties’] homes and caused severe property damage to them.” The Gonzalez
Parties presented no evidence that any of the water molecules from Lake Conroe
8
reached their homes. We presume for the sake of argument that the evidence
proves as a matter of law that none of the water that the Authority released from
Lake Conroe reached any of the Gonzalez Parties’ homes. The Authority, however,
concedes that is not the end of the inquiry. The Authority acknowledges that even
though Lake Conroe water did not reach the Gonzalez Parties’ homes, the release
could nevertheless still be a “taking” if the release of Lake Conroe water caused
other tributaries to back up and flood the Gonzalez Parties’ homes.
(b) Did water released from Lake Conroe cause the Gonzalez
Parties’ homes to flood?
The Authority argues that its release of water from Lake Conroe did not
cause the Gonzalez Parties’ homes to flood. The Authority bases this argument on
several facts.
First, the Authority points out that the area around the Gonzalez Parties’
homes received far more rainfall that the Lake Conroe watershed. The Lake
Conroe watershed received approximately 20 inches of rain whereas the area along
the Spring and Cypress creeks received 30+ inches of rain. Lake Conroe discharges
into the West Fork of the San Jacinto River and eventually flows about 50 miles
into Lake Houston. As stated previously, forty-one miles south of the Lake Conroe
dam the Spring and Cypress creeks join with the West Fork. The Authority points
out that water released from Lake Conroe accounted for 12% of the inflow in Lake
Houston, whereas water from Spring Creek and Cypress Creek accounted for 24%
of inflow into Lake Houston. The Gonzalez Parties did not contest this data.
Second, the Authority argues that timing does not support the Gonzalez
Parties’ argument that the Lake Conroe discharge caused flooding of their homes.
The Authority did not begin releasing water from Lake Conroe until early on
August 27, 2017. The Authority’s experts state that it would take 30 hours for
water from Lake Conroe to travel the 41 miles to the confluence with Spring and
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Cypress creeks. By that time, the West Fork of the San Jacinto was already at flood
stage. Again, the Gonzalez Parties did not contest this data.
The Authority thus argues that the Gonzalez Parties’ homes would have
flooded during Harvey even in the hypothetical scenario in which no water was
released from Lake Conroe during Harvey (the “No Release Scenario”). The
Authority supported this argument with the declaration of Mark Forest, a
hydrology expert. The Authority contends that Forest’s modeling shows that even
in the No Release Scenario, the Gonzalez Parties’ homes would have flooded
anyway. Therefore, the Authority argues that the Gonzalez Parties cannot prove
that the Authority’s release of water from Lake Conroe was a proximate cause of
any alleged taking or damaging of the Gonzalez Parties’ property. The Authority
asserts that the trial court erred in denying the Jurisdictional Plea as to the
Gonzalez Parties’ takings claims based on Forest’s undisputed testimony. Forest
testified in his declaration as follows:
• With others working under Forest’s supervision, Forest evaluated
rainfall data from the National Weather Service and multiple other
sources, streamflow data from the United States Geological
Survey, the Harris County Flood Control District, and topographic
data and bathymetric data from multiple sources, to assess and
model the riverine flood—the flood from water that flowed in
through rivers and other surface waterways—that occurred during
the Hurricane Harvey event from August 26 to August 30, 2017.
• Forest and others working under his supervision constructed
models of the 2017 flooding event using the U.S. Army Corps of
Engineers software to simulate the flow behaviors associated with
the West Fork San Jacinto and other tributaries as they combine
within Lake Houston and discharge from Lake Houston into the
San Jacinto River downstream of Lake Houston.
• The Corps of Engineers software they used is considered industry
standard for this type of analysis and are software packages that
have been rigorously tested and well documented. This software is
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also the most commonly used software in the development of
Federal Emergency Management Agency (“FEMA”) flood studies,
and the software provide the basis for most of the FEMA Flood
Insurance Rate Maps.
• Forest and others working under his supervision constructed a
model of the flood as it would have occurred had no floodwater
flowed downstream from Lake Conroe, that is, in the hypothetical
and impossible scenario in which the Lake Conroe Dam did not
release any floodwater and instead retained all inflow into Lake
Conroe behind the Dam until some point after the end of the
Harvey event. This simulation is not realistic because this scenario
presumes an imaginary and infinitely high Lake Conroe Dam.
• The technical memoranda attached to Forest’s declaration as
Exhibits 2, 3, 4, and 5 were prepared under Forest’s direction,
oversight, and supervision. Forest reviewed each of these
memoranda, and he agrees with and adopts all analyses and
conclusions therein as if they were fully stated in Forest’s
declaration.
• The results presented in Exhibit 5 to Forest’s declaration are shown
to match very well to a range of observations that include United
States Geological Survey (“USGS”) gages, USGS high water
marks, and photographic evidence available in the public domain
with regard to flooding extents, water surface elevations, and
timing associated with maximum water levels and water levels at
other times during the event.
• The hydrologic and hydraulic model of the flood that would have
occurred had no floodwater been released from Lake Conroe is a
purely hypothetical exercise because it would not have been
physically possible for the Lake Conroe Dam not to release water
as it is currently constructed. The level of Lake Conroe would have
reached 213.6 feet above mean sea level, exceeding the top of the
dam by about three feet. Such overtopping of Lake Conroe Dam
would have compromised the integrity of the dam embankment
and created the potential risk of dam failure due to overtopping. A
dam failure would have been “far more consequential to the
downstream reach compared to the observed event.”
Based on the Forest declaration, the Authority argues that release from Lake
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Conroe could not have caused the Gonzalez Parties’ home to flood. Specifically,
the Authority argued:
• 53 homes (77 Plaintiffs) were flooded by Cypress Creek or Spring Creek
alone, beyond the limits of any potential influence by water from Lake
Conroe;
• 3 homes (3 Plaintiffs) were within the limits of potential influence from
Lake Conroe, but their residences were so low they would have flooded
from Cypress Creek no matter what happened at Lake Conroe; and
• 5 homes (5 Plaintiffs) were flooded entirely by local runoff that
overwhelmed the storm drains in their own neighborhoods.
Finally, the Authority points out that the peak rate of discharge of water
from the Lake Conroe Dam in connection with Hurricane Harvey did not exceed
the peak inflow into Lake Conroe in connection with Hurricane Harvey. The
Authority submitted evidence that it retained an outside consultant to create a Gate
Operations Policy that was programmed so that the peak outflow from Lake
Conroe never exceeded 80% of the peak inflow. Thus, that the peak inflow into
Lake Conroe during Harvey was 129,065 cubic feet per second whereas peak
outflow was 79,141 cubic feet per second.
2. Response by the Gonzalez Parties.
The Gonzalez Parties responded in opposition to the Jurisdictional Plea and
submitted the following evidence: (1) an unsworn declaration in which the
declarant authenticates six exhibits submitted by the Gonzalez Parties; (2) four
press releases issued by the Authority during Harvey; (3) “Guidelines for
Operation and Maintenance of Dams in Texas,” issued by the Texas Commission
on Environmental Quality; and (4) a printout from the Authority’s website entitled
“Lake Conroe: A Water Supply Reservoir.” The Gonzalez Parties did not submit
any of the following: (1) any testimony by an expert witness; (2) any testimony by
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any of the Gonzalez Parties; (3) any evidence as to the extent to which any of the
properties in question flooded during Harvey; (4) any evidence as to how much
any of the properties in question would have flooded had no water been released
from Lake Conroe during Harvey; or (5) any evidence disputing Forest’s statement
of the elevation of each property or the data generated by Forest’s modeling
regarding the properties in question.
Rather than submit expert testimony, the Gonzalez parties have done two
things. First, they argue that the Authority made judicial admissions in its brief.
Second, they rely on objections they asserted in the trial court to the Forest
declaration and exhibits on a variety of grounds.
(a) Is Exhibit 5 conclusory?
The Gonzalez Parties argue that Exhibit 5 to Forest’s declaration is
conclusory because Forest does not explain in Exhibit 5 how he arrived at his
conclusions in this case. An expert’s statement or opinion is conclusory when: (1)
the expert asks the jury to take the expert’s word that the expert’s opinion is correct
but offers no factual basis for the opinion or the factual bases offered do not
support the opinion; or (2) the expert offers only the expert’s word that the factual
bases offered to support the opinion actually exist or support the opinion. See
Windrum v. Kareh, 581 S.W.3d 761, 769 (Tex. 2019). Conclusory testimony
cannot support a judgment even if no objection to the testimony was made in the
trial court. See id. at 770.
Forest adopted all analyses and conclusions in the 71-page Exhibit 5 and
incorporated them into his declaration. Nonetheless, Forest’s declaration contained
36 paragraphs, encompassing 18 pages, and the Gonzalez Parties do not assert that
any of the statements in these paragraphs are conclusory. The statements in
paragraphs 16 through 33 of the declaration are not conclusory and explain how
13
Forest reached his conclusions in this case.
In Exhibit 5, Forest describes his methodology, the sources of the data he
used to validate his modeling, and the ways in which he validated his modeling.
Forest also provides (1) 62 figures, including figures depicting the locations of the
Gonzalez Parties’ homes; and (2) a table showing the elevation of each of the
Gonzales Parties’ properties, the maximum water surface elevation on each
property shown by Forest’s modeling for the actual Harvey event, and the
maximum water surface elevation on each property shown by Forest’s modeling in
the No Release Scenario. The Gonzalez Parties complain that Forest “only gives
the reader mostly incomprehensible maps with no apparent relationship to the
[Gonzalez Parties’] homes, incomprehensible graphics, insufficient explanations of
methodology, no explanation of [how] the modeling software works, and
explanations of how [Forest] reached his conclusions in a completely different
case.” We do not agree that Forest’s maps are “mostly incomprehensible” with no
apparent relationship to the Gonzalez Parties’ homes, nor do we believe that
Forest’s graphics are incomprehensible. Forest’s failure to provide a detailed
explanation of how the modeling software works does not make Exhibit 5
conclusory. Forest did use data regarding the flooding of a property involved in
another lawsuit to validate his modeling. Nonetheless, Forest explained in Exhibit
5 how he reached his conclusions in this case, not his conclusions in the other
lawsuit.
In Exhibit 5 Forest offers a factual basis for the opinions and conclusions
stated in the exhibit, and these factual bases support Forest’s opinions and
conclusions. Thus, the Gonzalez Parties’ argument that Exhibit 5 is conclusory
lacks merit.3 See Windrum, 581 S.W.3d at 769; Phillips Development & Realty,
3
In Exhibit 7 to Forest’s declaration, Forest provides three figures that purport to depict the
14
LLC v. LJA Engineering, Inc., 499 S.W.3d 78, 89–90 (Tex. App.—Houston [14th
Dist.] 2016, pet. denied).
In its opening brief, the Authority states that Forest’s report “does not try to
explain to a layperson how hydrology or the Army Corps’ software works.” The
Gonzalez Parties assert that this statement constitutes a judicial admission that
Exhibit 5 is conclusory. In this statement, the Authority does not address whether
Forest offered a factual basis for the opinions or conclusions stated in Exhibit 5, or
whether any such factual bases support Forest’s opinions or conclusions. This
statement from the Authority’s opening brief does not rise to the level of a clear,
deliberate, and unequivocal statement that Exhibit 5 is conclusory, as is required
for a judicial admission. See Fairfield Indus., Inc. v. EP Energy E&P Co., L.P.,
531 S.W.3d 234, 244 n.6 (Tex. App.—Houston [14th Dist.] 2017, pet. denied)
(holding that statements in live pleading and other documents did not rise to the
level of a judicial admission as to the correctness of any of the opposing party's
arguments). Exhibit 5 is not conclusory, and the Authority has not judicially
admitted that Exhibit 5 is conclusory.
(b) The Gonzalez Parties’ Objections to Form
In the trial court, the Gonzalez Parties asserted the following objections to
the form of some of the evidence submitted by the Authority: (1) the exhibits
attached to the Olmos declaration and the exhibits attached to the Forest
declaration (collectively, the “Exhibits”) are hearsay; (2) Paragraphs 14 and 19
from the Olmos declaration and Paragraphs 16 and 17 from the Gilman declaration
violate the best-evidence rule; and (3) the Authority did not properly authenticate
maximum inundation limits in three scenarios. The Gonzalez Parties assert that Exhibit 7 is
conclusory. We presume, without deciding, that Exhibit 7 is conclusory and that it is
incompetent to prove any issue as to the Jurisdictional Plea.
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the Exhibits. On appeal, the Gonzalez Parties assert that the trial court overruled
theses objections or, in the alternative, refused to rule on them. Though the
Gonzalez Parties do not assert that the trial court erred in overruling or refusing to
rule on these objections, the Gonzalez Parties assert that this court should not
consider the evidence to which they have objected in determining whether the trial
court erred in denying the Jurisdictional Plea as to their takings claims. We
presume for the sake of argument that, under a liberal construction of the Gonzalez
Parties’ briefing, they argue as an alternative basis for affirming the trial court’s
order, that the trial court abused its discretion in overruling or refusing to rule on
these objections, and that if the trial court had sustained these objections, the
remaining evidence would be insufficient to support a judgment affirming the trial
court’s order. See Berry v. Covarrubias, No. 14-03-01137-CV, 2004 WL 1631117,
at *7, n.13 (Tex. App.—Houston [14th Dist.] Jul. 22, 2004, no pet.) (mem. op.).
All of these objections are objections to form, as to which the Gonzalez
Parties had to preserve error in the trial court. See In re Longoria, 470 S.W.3d 616,
630 (Tex. App.—Houston [14th Dist.] 2015, orig. proceeding); Cantu v. Frye &
Assocs., PLLC, No. 01-12-00868-CV, 2014 WL 2626439, at *7, *10 n.3 (Tex.
App.—Houston [1st Dist.] June 12, 2014, no pet.); Pico v. Capriccio Italian
Restaurant, Inc., 209 S.W.3d 902, 909 (Tex. App.—Houston [14th Dist.] 2006, no
pet.). The record reflects that the trial court did not rule on any of the Gonzalez
Parties’ objections to the Authority’s evidence.
The trial court signed an order in which it denied the Jurisdictional Plea only
as to the takings claim. In this order, the trial court did not rule on any of the
Gonzalez Parties’ objections. The next day, the Authority filed a notice of appeal,
perfecting this interlocutory appeal under Civil Practice and Remedies Code
section 51,014(a)(8), thus triggering the stay under section 51.014(b) of “the
16
commencement of a trial in the trial court [and] all other proceedings in the trial
court pending resolution of [the] appeal.” Tex. Civ. Prac. & Rem. Code Ann. §
51.014(b) (West, Westlaw through 2021 C.S.); see id. § 51.014(a)(8) (allowing an
appeal from an interlocutory order by a county court at law that grants or denies a
plea to the jurisdiction filed by a governmental unit). Two days later the Gonzalez
Parties filed a written request asking the trial court to rule on their objections to the
Authority’s evidence and objecting to the trial court’s alleged refusal to rule on the
objections. On the same day as the written request, the Authority moved to strike
this motion based on the stay of all proceedings triggered by the Authority’s
appeal. Under the plain text of section 51.014(b) and Supreme Court of Texas
precedent interpreting it, the filing of the Authority’s notice of appeal triggered a
statutory stay of all proceedings in the trial court pending resolution of the appeal,
and there are no exceptions to this stay. See In re Geomet Recycling, L.L.C., 578
S.W.3d 82, 86–87 (Tex. 2019). A filing by a party in the trial court is a proceeding
barred by this stay. See City of Houston v. Swinerton Builders, Inc., 233 S.W.3d 4,
8–9 (Tex. App.—Houston [1st Dist.] 2007, no pet.). The Authority timely objected
to the Gonzalez Parties’ violation of the stay by filing the document containing
their objection to the trial court’s alleged refusal to rule on their evidentiary
objections. See Roccaforte v. Jefferson Cty., 341 S.W.3d 919, 923 (Tex. 2011).
Therefore, this document is without force and is ineffective to preserve error on the
Gonzalez Parties’ objections to form. See In re Geomet Recycling, L.L.C., 578
S.W.3d at 86–87; Roccaforte, 341 S.W.3d at 923; Swinerton Builders, Inc., 233
S.W.3d at 8–9. The Gonzalez Parties did not obtain an adverse ruling on their
objections to form, and they did not lodge an effective objection to any alleged
refusal by the trial court to rule on the objections to form. Therefore, the Gonzalez
Parties failed to preserve error in the trial court as to their objections to form. See
Tex. R. App. P. 33.1(a)(2); Grace Interest, LLC v. Wallis State Bank, 431 S.W.3d
17110, 122 (Tex. App.—Houston [14th Dist.] 2013, pet. denied). In any event, the
trial court would not have abused its discretion if it had overruled the Gonzalez
Parties’ objections to form. The Gonzalez Parties’ objections to the form of the
evidence do not provide an alternative basis for affirming the trial court’s order
denying the Jurisdictional Plea as to the Gonzalez Parties’ takings claims.
3. Did the evidence submitted by the Authority prove that it did not cause
the Gonzalez Parties’ homes to flood?
The evidence submitted by the Authority proves as a matter of law that each
of the Gonzalez Parties’ homes would have flooded during Harvey even if the
Authority had released no water at all from Lake Conroe and that the Gonzalez
Parties cannot prove causation on their takings claims. See Mission Consol. Indep.
Sch. Dist. v. Garcia, 372 S.W.3d 629, 642–43 (Tex. 2012) (concluding that
because governmental entity submitted undisputed evidence in support of its plea
to the jurisdiction negating an essential element of the plaintiff’s prima facie case,
the plaintiff had the burden to raise a fact question); Guadalupe County v.
Woodlake Partners, Inc., No. 04-16-00253-CV, 2017 WL 1337650, at *3–4 (Tex.
App.—San Antonio Apr. 12, 2017, pet. denied) (concluding summary judgment
evidence negated causation element of the takings claim as a matter of law) (mem.
op.). Thus, to avoid a dismissal of their takings claims based on governmental
immunity, the Gonzalez Parties had the burden to submit evidence disputing the
Authority’s evidence as to causation and raising a fact issue as to whether they can
prove causation on their takings claims. See Garcia, 372 S.W.3d at 642–43;
Miranda, 133 S.W.3d at 227–28.
The Gonzalez Parties did not submit evidence disputing the Authority’s
evidence as to causation or raising a fact issue as to whether their homes would
have flooded during Harvey even if the Authority had released no water at all from
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Lake Conroe. See Garcia, 372 S.W.3d at 642–43; Miranda, 133 S.W.3d at 227–28.
The evidence relevant to this jurisdictional issue is undisputed and fails to raise a
fact question on this jurisdictional issue, so that this issue may be ruled on as a
matter of law. See Garcia, 372 S.W.3d at 642–43; Guadalupe County, 2017 WL
1337650, at *3–4. Under the applicable standard of review, we conclude that the
Gonzalez Parties cannot prove that the Authority’s release of water from Lake
Conroe was a proximate cause of any taking or damaging of the Gonzalez Parties’
property because the undisputed evidence proves as a matter of law that each of
these properties would have flooded in the No Release Scenario. See Garcia, 372
S.W.3d at 642–43; Guadalupe County, 2017 WL 1337650, at *3–4.
Thus, we sustain the Authority’s first issue, and we need not and do not
address the second or third issue.
B. Did the Gonzalez Parties establish any basis for waiver of the
Authority’s governmental immunity as to their nuisance and gross-
negligence claims?
In its fourth issue, the Authority asserts that it has governmental immunity
from suit as to the Gonzalez Parties’ nuisance claims and their alleged claims for
grossly negligent maintenance and operation of the Lake Conroe Dam (the “Other
Claims”). The Authority contends that the Gonzalez Parties failed to assert any
basis for a waiver of the Authority’s governmental immunity as to these claims.
The Authority raised these points in the Jurisdictional Plea. Even though the trial
court did not rule on the part of the Jurisdictional Plea challenging these two
claims, this court still may address this jurisdictional issue. See Waco Indep. Sch.
Dist. v. Gibson, 22 S.W.3d 849, 850–51 (Tex. 2000); Texas Dep’t of Transp. v.
Esters, 343 S.W.3d 226, 232–33 (Tex. App.—Houston [14th Dist.] 2011, no pet.);
Garcia v. Kubosh, 377 S.W.3d 89, 93–94 (Tex. App.—Houston [1st Dist.] 2012,
no pet.).
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When, as in the fourth issue in today’s case, a party has filed a plea to the
jurisdiction challenging the pleadings, we must construe the pleadings liberally in
favor of the pleader and look to the pleader’s intent. See Miranda, 133 S.W.3d at
226. A party suing a governmental entity bears the burden of affirmatively
demonstrating the trial court’s jurisdiction by alleging a valid waiver of immunity.
Dallas Area Rapid Transit v. Whitley, 104 S.W.3d 540, 542 (Tex. 2003). To
determine if the party has met that burden, we consider the facts alleged by the
party and, to the extent it is relevant to the jurisdictional issue, any evidence
submitted by the parties. Id.The Authority is a political subdivision of the State of Texas that generally is
entitled to governmental immunity. See Medina, 627 S.W.3d at 622. Governmental
immunity has two components: immunity from liability and immunity from suit.
See Tooke v. City of Mexia, 197 S.W.3d 325, 332 (Tex. 2006). When a political
subdivision of the state enjoys immunity from suit under the doctrine
of governmental immunity, a court lacks subject-matter jurisdiction. See Tex. Dep’t
of Transp. v. Jones, 8 S.W.3d 636, 638 (Tex. 1999).
This case does not involve an ultra vires claim, a claim in which a plaintiff
may sue state officers in their official capacity without a statutory waiver of
immunity. See City of El Paso v. Heinrich, 284 S.W.3d 366, 371–73 (Tex. 2009).
Even if the Gonzalez Parties tried to assert an ultra vires claim against the
Authority, it would be barred by governmental immunity. See id. at 372–73. The
Gonzalez Parties do not assert that the non-statutory waiver of immunity from the
Reata case applies, and even if they did, the record does not support a waiver of
governmental immunity under the Reata case. See Reata Construction Corp. v.
City of Dallas, 197 S.W.3d 371, 373 (Tex. 2006). In this context, for there to be a
waiver of the Authority’s governmental immunity as to the Other Claims, the
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Texas Legislature must have waived the Authority’s governmental immunity by
clear and unambiguous language in a statute or legislative resolution or the United
States Congress must have enacted a statute pursuant to section 5 of the Fourteenth
Amendment unequivocally expressing Congress’s intent to waive the Authority’s
governmental immunity as to the Gonzalez Parties’ claims. See U.S. Const.
Amend. XIV, §5; Tex. Civ. Prac. & Rem. Code Ann. § 107.001, et seq. (West,
Westlaw through 2021 C.S.); Tex. Gov’t Code Ann. § 311.034 (West, Westlaw
through 2021 C.S.); Jennings, 142 S.W.3d at 315–16; Brice v. Texas Dep’t of Fam.
& Protective Servs., No. 14-20-00506-CV, 2022 WL 1310876, at *2 (Tex. App.—
Houston [14th Dist.] May 3, 2022, no pet.) (mem. op.).
Liberally construing the Gonzalez Parties’ live petition, they assert both
nuisance claims that rise to the level of a taking and nuisance claims that do not
rise to the level of a taking. The only waiver of the Authority’s governmental
immunity alleged by the Gonzalez Parties is the takings provision of the Texas
Constitution, which waives governmental immunity for a viable takings claim. See
Tex. Const. art. I, § 17(a); El Dorado Land Co., L.P., 395 S.W.3d at 801. As to the
Other Claims, the Texas Legislature has not waived the Authority’s governmental
immunity in section 101.021(1) of the Civil Practice and Remedies Code because
“motor-driven equipment” does not include “equipment used in connection with
the operation of floodgates or water release equipment by river authorities created
under the laws of this state.” Tex. Civ. Prac. & Rem. Code Ann. § 101.001(4)(A)
(West, Westlaw through 2021 C.S.); see Tex. Civ. Prac. & Rem. Code Ann. §
101.021(1) (West, Westlaw through 2021 C.S.). The Texas Legislature has not
waived the Authority’s governmental immunity in section 101.021(2) of the Civil
Practice and Remedies Code because the Other Claims are not claims for personal
injury or death. See Tex. Civ. Prac. & Rem. Code Ann. § 101.021(2).
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In their live petition, the Gonzalez Parties assert that governmental immunity
does not shield the Authority from liability for “intentional, non-negligent nuisance
and gross negligence relating to the improper maintenance of [the Authority’s]
property.” The only authority that the Gonzalez Parties cite for this proposition is
the Supreme Court of Texas’s opinion in Miranda. See Miranda, 133 S.W.3d at
225. But the Miranda opinion does not support this proposition. See id. at 224–25.
The Miranda case involved a potential waiver of sovereign immunity under section
101.021(2) of the Civil Practice and Remedies Code, as modified by the
recreational use statute, as to a claim for personal injury. See Tex. Civ. Prac. &
Rem. Code Ann. §§ 101.021(2), 101.058; Miranda, 133 S.W.3d at 224–25. In this
scenario, the governmental entity’s sovereign immunity was waived only if it was
grossly negligent. See Miranda, 133 S.W.3d at 224–25. But, the Miranda case
does not state that the Texas Legislative has waived the immunity of governmental
entities as to “intentional, non-negligent nuisance and gross negligence relating to
the improper maintenance of [the entity’s] property.” See id. The Other Claims are
not claims for personal injury or death, and thus, the waiver of immunity in section
101.021(2) does not apply. See Tex. Civ. Prac. & Rem. Code Ann. § 101.021(2).
The Texas Legislature has not waived the Authority’s governmental immunity as
to the Other Claims in the Texas Tort Claims Act. See Tex. Civ. Prac. & Rem.
Code Ann. § 101.001(4)(A); Tex. Civ. Prac. & Rem. Code Ann. § 101.021.
The Gonzalez Parties have not alleged a waiver of the Authority’s
governmental immunity by the United States Congress or by the Texas Legislature.
See Dallas Area Rapid Transit, 104 S.W.3d at 542. Under the applicable legal
standard, we conclude that governmental immunity bars the Gonzalez Parties
claims against the Authority for grossly negligent maintenance and operation of the
Lake Conroe Dam and for nuisance that does not allegedly rise to the level of a
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taking. See id.; Jennings, 142 S.W.3d at 315–16. The trial court lacks jurisdiction
over these claims. See Jones, 8 S.W.3d at 638. Because, as discussed above, the
Gonzalez Parties cannot prove their takings claims and do not have viable takings
claims, there is no waiver of governmental immunity for their takings claims or for
their nuisance claims that allegedly rise to the level of a taking, and the trial court
lacks jurisdiction over these claims. See Jennings, 142 S.W.3d at 315–16. We
sustain the fourth issue
III. CONCLUSION
Under the applicable standard of review, we conclude that the Gonzalez
Parties cannot prove that the Authority’s release of water from Lake Conroe was a
proximate cause of any taking or damaging of the Gonzalez Parties’ property
because the undisputed evidence proves as a matter of law that each of these
properties would have flooded in the No Release Scenario. Under the applicable
legal standard, we conclude that governmental immunity bars the Other Claims.
Therefore, the trial court erred in denying the Jurisdictional Plea. The trial court
lacks subject-matter jurisdiction over the Gonzalez Parties’ takings claims and the
Other Claims. We reverse the trial court’s order and render judgment dismissing
with prejudice (1) all takings claims asserted by the Gonzalez Parties, (2) the
Gonzalez Parties’ purported claims against the Authority for grossly negligent
maintenance and operation of the Lake Conroe Dam; and (3) all nuisance claims
asserted by the Gonzalez Parties.
/s/ Randy Wilson
Justice
Panel consists of Chief Justice Christopher and Justices Zimmerer and Wilson.
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