             In the
        Court of Appeals
Second Appellate District of Texas
         at Fort Worth
     ___________________________
          No. 02-18-00427-CV
     ___________________________

    CITY OF ARLINGTON, Appellant

                     V.

       BETTY WARNER, Appellee



  On Appeal from the 236th District Court
          Tarrant County, Texas
      Trial Court No. 236-292659-17


    Before Kerr, Birdwell, and Bassel, JJ.
   Memorandum Opinion by Justice Kerr
                            MEMORANDUM OPINION

      In this interlocutory appeal, the City of Arlington appeals from the trial court’s

order denying its no-evidence summary-judgment motion challenging the trial court’s

subject-matter jurisdiction over Betty Warner’s inverse-condemnation suit. See Tex.

Civ. Prac. & Rem. Code Ann. § 51.014(a)(8). We will affirm.

                                     Background

      In 2005, Warner purchased a three-acre residential property in Arlington. There

is a private pond on the property, and the City owns a drainage easement across the

property. Warner alleges that when it rains, excessive amounts of water from the

surrounding streets (along with large amounts of garbage, waste, and contaminants

allegedly diverted by the City) flow through the City’s storm sewers and flood her

property and pond with water and debris. She also claims that the water and debris

exceed the drainage easement’s boundaries and its permissible usage and scope. She

further complains that the City required her to install an x-inlet box on her property

that “creates a damning [sic] effect” that prevents water from draining off her

property. According to Warner, the City’s actions have deprived her of the enjoyment

of her property and pond.

      In June 2017, Warner sued the City for inverse condemnation under article 1,

section 17, of the Texas constitution, claiming that the City’s intentional acts resulted

in the taking, damaging, and destruction of her property for public use. See Tex.

Const. art I, § 17. Warner sought injunctive relief and monetary damages.

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      In September 2018, the City filed a no-evidence summary-judgment motion

asserting that its governmental immunity was not waived because (1) Warner failed to

adquately plead an inverse-condemnation claim, and (2) she had presented no

evidence on the elements of that claim. The City attached no evidence to its motion.

Warner responded, and the City objected to some of Warner’s summary-judgment

evidence. The trial court sustained the objections but denied the City’s motion.

      The City has filed an interlocutory appeal raising two issues: (1) whether a

governmental entity may use a no-evidence summary-judgment motion as a vehicle to

challenge subject-matter jurisdiction after the opposing party has had adequate time

for discovery and (2) if such a motion is a permissible means to challenge subject-

matter jurisdiction, whether Warner’s response to the City’s no-evidence summary-

judgment motion raised a fact issue on the jurisdictionally required intent element of

her inverse-condemnation suit.

                               Inverse Condemnation

      Article I, section 17, of the Texas constitution—the “takings clause”—waives

governmental immunity for the taking, damaging, or destruction of property for

public use without adequate compensation. See id.; Steele v. City of Houston, 603 S.W.2d

786, 791 (Tex. 1980). When a governmental entity intentionally takes private property

for public use without adequately compensating the landowner, “the owner may

recover   damages    for   inverse   condemnation.” Tarrant Reg’l Water Dist.         v.

Gragg, 151 S.W.3d 546, 554 (Tex. 2004). To establish an inverse-condemnation claim

                                           3
under the Texas constitution, a plaintiff must plead and prove (1) an intentional

governmental act (2) that resulted in the taking, damaging, or destruction of her

property (3) for public use. See Gen. Servs. Comm’n v. Little-Tex Insulation Co., 39 S.W.3d

591, 598 (Tex. 2001).

                                  Standard of Review

       Because it challenged the trial court’s subject-matter jurisdiction over Warner’s

inverse-condemnation suit, we review the City’s no-evidence summary-judgment

motion as a plea to the jurisdiction. See Tex. Civ. Prac. & Rem. Code Ann.

§ 51.014(a)(8) (providing for an appeal from an interlocutory order granting or

denying a governmental unit’s plea to the jurisdiction), § 101.001(3)(B) (defining

“governmental unit” to include a city as a political subdivision of the state); Thomas v.

Long, 207 S.W.3d 334, 339 (Tex. 2006) (“The Legislature provided for an interlocutory

appeal when a trial court denies a governmental unit’s challenge to subject matter

jurisdiction, irrespective of the procedural vehicle used.”); Tex. Dep’t of Criminal Justice

v. Simons, 140 S.W.3d 338, 349 (Tex. 2004) (observing that an interlocutory appeal may

be taken under section 51.014(a)(8) whether a jurisdictional argument is presented in a

plea to the jurisdiction or a summary-judgment motion because the right of appeal is

tied to the substance of the issue raised and not to any particular procedural vehicle).

A plea to the jurisdiction is a dilatory plea that seeks dismissal of a case for lack of

subject-matter jurisdiction. Harris Cty. v. Sykes, 136 S.W.3d 635, 638 (Tex. 2004).

Whether a court has subject-matter jurisdiction is a legal question, and we review de

                                             4
novo a trial court’s ruling on a plea to the jurisdiction. Tex. Dep’t of Parks & Wildlife v.

Miranda, 133 S.W.3d 217, 226, 228 (Tex. 2004).

       A jurisdictional plea may challenge the pleadings, the existence of jurisdictional

facts, or both. Alamo Heights I.S.D. v. Clark, 544 S.W.3d 755, 770 (Tex. 2018).

Although the City challenged Warner’s pleadings in the trial court, it has expressly

waived that challenge on appeal (along with most of its challenges to the jurisdictional

facts) and focuses solely on whether Warner established the “jurisdictionally required

element of intent.” The standard of review for a jurisdictional plea challenging

jurisdictional facts “mirrors that of a [traditional] summary judgment under Texas

Rule of Civil Procedure 166a(c).” Miranda, 133 S.W.3d at 228. Under this standard, as

the movant, the governmental entity has the burden to assert and prove with evidence

that the trial court lacks subject-matter jurisdiction. See Mission Consol. I.S.D. v. Garcia,

372 S.W.3d 629, 635 (Tex. 2012) (“Initially, the defendant carries the burden to meet

the summary judgment proof standard for its assertion that the trial court lacks

jurisdiction.”); see also Miranda, 133 S.W.3d at 228. If the governmental entity

discharges this burden, only then must the plaintiff present evidence sufficient to raise

a material fact issue regarding jurisdiction. See Mission Consol. I.S.D., 372 S.W.3d at

635 (citing Miranda, 133 S.W.3d at 228).

                                         Analysis

       In its first issue, the City recognizes that this court has recently held that a

governmental entity cannot use a no-evidence summary-judgment motion “as a

                                             5
vehicle to defeat jurisdiction or otherwise circumvent its burden to disprove

jurisdiction.”1 Town of Shady Shores v. Swanson, 544 S.W.3d 426, 435 (Tex. App.—Fort

Worth 2018, pet. pending). In that case, we explained that under the framework set

out by the Texas Supreme Court, a governmental entity must produce evidence

negating jurisdiction before the plaintiff has any burden to produce jurisdictional

evidence. Id.; see Mission Consol. I.S.D., 372 S.W.3d at 635 (reiterating that when

challenging the existence of jurisdictional facts, the defendant governmental entity

carries the burden to meet the summary-judgment-proof standard for its assertion

that the trial court lacks jurisdiction); Miranda, 133 S.W.3d at 228 (stating that for

jurisdictional pleas challenging the existence of jurisdictional facts, requiring the state

to meet the summary-judgment standard of proof protects plaintiffs “from having to

‘put on their case simply to establish jurisdiction’” and that a plaintiff must come

forward with evidence to raise a fact question regarding the jurisdictional issue only

“after the state asserts and supports with evidence that the trial court lacks subject

matter jurisdiction” (citation omitted)). “Simply put, a governmental entity cannot file

a no-evidence motion for summary judgment on governmental immunity grounds to

altogether avoid the jurisdictional burden that it would have to demonstrate when

asserting a plea to the jurisdiction.” Shady Shores, 544 S.W.3d at 436. In our view, a



       1
        We issued our opinion in Shady Shores some eight months before the City filed
its no-evidence motion.


                                            6
contrary holding “would effectively turn Texas governmental immunity jurisprudence

on its head.” Id.

       We decline the City’s invitation to overrule Shady Shores.2 Here, the City denied

the existence of jurisdictional facts but never came forward with any evidence to

disprove Warner’s inverse-condemnation allegations. Thus, the burden never shifted



       2
        As the City recognizes, this court is not alone in holding that a no-evidence
summary-judgment motion is an improper means to challenge subject-matter
jurisdiction. See, e.g., City of El Paso v. Collins, 483 S.W.3d 742, 755–56 (Tex. App.—El
Paso 2016, no pet.) (holding that a defendant governmental entity “cannot simply
deny the existence of jurisdictional facts and force the plaintiffs to raise a fact issue”
and that before a plaintiff has any burden to come forward with jurisdictional
evidence, the governmental entity must first come forward with sufficient evidence to
negate jurisdiction (quoting Tirado v. City of El Paso, 361 S.W.3d 191, 196 (Tex. App.—
El Paso 2012, no pet.))); Arthur v. Uvalde Cty. Appraisal Dist., No. 04-14-00533-CV,
2015 WL 2405343, at *9 (Tex. App.—San Antonio May 20, 2015, pet. denied) (mem.
op.) (“Permitting UCAD to challenge subject matter jurisdiction in a no-evidence
motion for summary judgment improperly shifts the jurisdictional evidentiary
burdens.”); Thornton v. Ne. Harris Cty. MUD 1, 447 S.W.3d 23, 40 (Tex. App.—
Houston [14th Dist.] 2014, pet. denied) (“Permitting MUD to challenge subject
matter jurisdiction in a no-evidence motion for summary judgment improperly shifts
the jurisdictional evidentiary burdens—effectively requiring the Thorntons to fully
marshal their evidence simply to establish jurisdiction and eliminating any burden on
MUD as a governmental entity to disprove jurisdiction.”); see also City of Austin v.
Rangel, 184 S.W.3d 377, 382 (Tex. App.—Austin 2006, no pet.) (stating, as dicta, that a
“defendant cannot simply deny the existence of jurisdictional facts and force the
plaintiff to raise a fact issue”); cf. Green Tree Servicing, LLC v. Woods, 388 S.W.3d 785,
793–94 (Tex. App.—Houston [1st Dist.] 2012, no pet.) (holding that
nongovernmental-entity defendants could not challenge standing through a no-
evidence motion because such a procedure would “allow defendants an end run
around the safeguards established by the Texas Supreme Court”). But see City of Haltom
City v. Aurell, 380 S.W.3d 839, 846–59 (Tex. App.—Fort Worth 2012, no pet.)
(reversing the denial of governmental entity’s no-evidence summary-judgment motion
on immunity grounds without considering whether such a motion was the proper
procedural vehicle for challenging immunity).

                                            7
to Warner to come forward with any evidence to support those allegations. See id. at

435–36.

      In accordance with our holding in Shady Shores, we therefore conclude and hold

that the trial court did not err by denying the City’s no-evidence summary-judgment

motion challenging the court’s subject-matter jurisdiction over Warner’s inverse-

condemnation suit. See id. We overrule the City’s first issue, which is dispositive of this

appeal, and thus do not address its second, which asks us to determine whether

Warner’s evidence sufficed to raise a fact issue on intent. See Tex. R. App. P. 47.1.

                                      Conclusion

      Having overruled the City’s dispositive first issue, we affirm the trial court’s

order denying the City’s no-evidence summary-judgment motion.




                                                       /s/ Elizabeth Kerr
                                                       Elizabeth Kerr
                                                       Justice

Delivered: June 20, 2019




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