Opinion issued June 13, 2019




                                 In The
                           Court of Appeals
                                For The
                       First District of Texas
                          ————————————
                           NO. 01-18-00823-CV
                         ———————————
             SAN JACINTO RIVER AUTHORITY, Appellant
                                   V.
ELIZABETH BOLT, STEPHEN BOLT, EDWARD AVELLA, MICHELLE
AVELLA, JAMES BEECH, SUSAN BEECH, JAMES P. CLARK, ROBERT
  FRYE, MELANIE FRYE, JOHN HAMBRICK, SHARON HAMBRICK,
  JAMES HOLEKAMP, TAMMY HOLEKAMP, TRACY JANIK, KRIS
 JANIK, SCOTT JENSEN, KAMELA JENSEN, LARRY KEESE, JANET
   KEESE, DAVID KELLEY, LEIGH MARCUS-KELLEY, ROBERT C.
   NORRIS, CAROLANNE NORRIS, BENNETT J. REAVES, ASHLEY
    REAVES, CAROLINE SANTIAGO, JAMES SANTIAGO, ADAM
SHAFFER, YVETTE SHAFFER, LARRY SHRYOCK, JANET SHRYOCK,
NAOMI STAIR, MICHAEL STAMPS, PAMELA STAMPS, RAUL SUAZO,
SHELLEY SUAZO, ROBERT SWIFT, SANDRA SWIFT, JAMES TOWNE,
   SUSAN TOWNE, BRADFORD WITMER, SUSAN WITMER, JOHN
 WOOD, AMANDA WOOD, BERNIE WUTHRICH, JANET WUTHRICH,
        JEFF ARTHUR, AND JENNIFER ARTHUR, Appellees


           On Appeal from the County Civil Court at Law No. 1
                         Harris County, Texas
                     Trial Court Case No. 1113458
                           MEMORANDUM OPINION

      In this interlocutory appeal, appellant San Jacinto River Authority, the

defendant below, asserts that the trial court erred in denying its Rule 91a motion to

dismiss. The River Authority’s Rule 91a dismissal motion contended that because

the plaintiffs’ inverse-condemnation (takings) claims have no basis in fact or law,

the River Authority’s governmental (sovereign) immunity is not waived and the

plaintiffs’ claims should be dismissed for lack of subject-matter jurisdiction.

      In San Jacinto River Authority v. Burney, 570 S.W.3d 820 (Tex. App.—

Houston [1st Dist.] 2018, no pet. h.), an opinion delivered six months ago, this

court addressed three appeals in which the River Authority raised and argued the

same issues that it is raising in this appeal. For the reasons expressed in Burney, we

affirm.

                                    Background

      During Hurricane Harvey in late August and early September of 2017, the

San Jacinto River Authority released water from Lake Conroe into the West Fork

of the San Jacinto River. The forty-eight plaintiffs are owners of homes that

flooded in Kingwood, Texas. The homeowners have sued the River Authority in

the civil county court at law of Harris County, seeking compensation for their

inverse-condemnation claims. The homeowners allege that during Hurricane

Harvey, the River Authority released rising water from Lake Conroe into the West

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Fork of the San Jacinto River, and that the released water caused or exacerbated

the downstream flooding of their homes in Kingwood. They allege two causes of

action against the River Authority: inverse condemnation of their real and personal

property; and inverse condemnation by an “inundation, flood, flowage or drainage

easement” over their property.

       There are two differences between this case and the three cases in Burney.

The three cases in Burney were filed in Harris County district court, and in each of

those cases the homeowner plaintiffs asserted an additional statutory takings claim

under Government Code section 2007.021. See Burney, 570 S.W.3d at 824–29

(holding that Harris County’s county civil courts at law have exclusive jurisdiction

over inverse-condemnation claims and that a statutory takings claim must be

brought in district court). Except for these two differences, the factual allegations

and the two inverse-condemnation claims in this case and in the three cases in

Burney are practically identical.

                                            Analysis

       In this appeal, the River Authority asserts that the trial court erred in denying

its Rule 91a motion to dismiss because the homeowners did not plead sufficient

facts to establish a waiver of the River Authority’s immunity. We review de novo

the trial court’s ruling. See id. at 830.




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      The River Authority asserts six reasons why the homeowners’ pleading is

insufficient. The River Authority’s first two reasons assert that the homeowners’

flooding did not constitute a taking because their properties were affected by a

confluence of water and because the peak inflow into Lake Conroe exceeded its

peak outflow. In Burney we rejected these two arguments, and we reject them here

for the same reasons, including because of their attempted reliance on evidence.

See id. at 835–36; see also id. at 830–31 (rejecting River Authority’s request to

consider evidence with Rule 91a dismissal motion, including under the guise of

judicial notice).

      The River Authority additionally argues that the homeowners’ flooding did

not constitute a taking because the water was released from Lake Conroe directly

into the West Fork of the San Jacinto River and not directly into their respective

properties. Burney addressed and rejected this argument, noting contrary authority

from the Texas Supreme Court and the United States Supreme Court. See id. at

835–36 & n.67 (citing Tarrant Regional Water Distr. v. Gragg, 151 S.W.3d 546,

550, 554–55 (Tex. 2004) (affirming takings judgment despite evidence that water

district released lake water directly into river during heavy rains and water traveled

about eight miles downstream before causing flood damage); and Ark. Game &

Fish Comm’n v. United States, 568 U.S. 23, 27–28 (2012) (holding that property

owner 115 miles downstream from dam could maintain federal takings claim)).


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      The River Authority’s next two arguments are that the homeowners’

pleading does not sufficiently plead intent or that the flooding was for a public

purpose. Again, Burney thoroughly addressed and rejected these identical

arguments, and we do as well based on the reasoning in Burney. See id. at 833–35,

837–38.

      Finally, we reject the River Authority’s last argument—that the

homeowners’ inverse-condemnation claim for an “inundation, flood, flowage or

drainage easement” over their property is not sufficiently pleaded factually or

legally—which was addressed in Burney: “The same allegations also sufficiently

support the homeowners’ constitutional takings claims for an ‘inundation, flood,

flowage or drainage easement over their property,’ or a partial taking.” Id. at 838 &

n.79 (citing Hubler v. City of Corpus Christi, 564 S.W.2d 816, 821 (Tex. Civ.

App.—Corpus Christi 1978, writ ref’d n.r.e.)).

                                    Conclusion

      For the above reasons, we overrule the River Authority’s issues and affirm

the trial court’s denial of the River Authority’s Rule 91a motion to dismiss.




                                              Richard Hightower
                                              Justice

Panel consists of Justices Higley, Hightower, and Countiss.
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