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

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

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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.

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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

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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

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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

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