                                    NO. 07-08-0444-CV

                              IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                       AT AMARILLO

                                          PANEL A

                                    APRIL 23, 2009
                           ______________________________

                          THE CITY OF BORGER, APPELLANT

                                              V.

                VICTOR GARCIA AND WIFE BECKY GARCIA, AND
             LORENZO RAMOS AND WIFE SILVIA RAMOS, APPELLEES
                    _________________________________

           FROM THE 84TH DISTRICT COURT OF HUTCHINSON COUNTY;

                 NO. 37,431; HONORABLE DAVID GLEASON, JUDGE
                        _______________________________


Before CAMPBELL and HANCOCK and PIRTLE, JJ.


                                          OPINION


       Appellant, City of Borger (City), appeals the trial court’s order denying the City’s Plea

to the Jurisdiction1 in relation to a lawsuit brought by appellees, Victor and Becky Garcia

and Lorenzo and Silvia Ramos (collectively, “appellees”), seeking recovery for property

damage to appellees’ homes caused by a flood. We reverse the trial court’s order and

render judgment dismissing appellees’ suit with prejudice.



       1
         A governmental unit may appeal an interlocutory order that grants or denies a plea
to the jurisdiction. See TEX . CIV. PRAC . & REM . CODE ANN . § 51.014(a)(8) (Vernon 2008).
                                          Background


        Appellees’ homes were damaged when several inches of rain fell on the area of

their homes over the course of a couple of hours on September 6, 2006. Flooding had

occurred in the area in the past. However, in April or May of 2006, the City had rerouted

the drainage system serving the area and installed larger drain pipes. From the time that

the new drainage system project was completed until the September 6th flood event, the

drainage system had adequately handled rainfall and no flooding had been reported in the

area.


        Appellees filed claims for a damaging of their property without just compensation

against the City, as authorized by article I, section 17, of the Texas Constitution, on

December 21, 2006. See TEX . CONST . art. I, § 17. On July 23, 2007, the City filed a Plea

to the Jurisdiction, supported by the affidavit of the city’s engineer, contending that, inter

alia, appellees’ claims do not state facts sufficient to invoke the trial court’s jurisdiction over

the case. Appellees amended their petition and filed evidence of jurisdictional facts with

their response to the City’s plea. Subsequently, both the City and appellees filed additional

evidence of jurisdictional facts. Apparently, on or about July 1, 2008, the trial court heard

the City’s Plea to the Jurisdiction, granted the plea, but afforded appellees an opportunity

to amend their pleadings.2 Appellees amended their pleading. The City again filed a plea

to the jurisdiction. After considering the pleadings and the arguments of counsel, the trial



        2
        No order or oral pronouncement of this ruling is contained within the appellate
record. Our recitation of this portion of the procedural history is based on appellee’s July
16, 2008 Motion for Rehearing of Defendant’s Plea to the Jurisdiction.

                                                2
court denied the City’s plea on October 9, 2008. From this denial, the City timely filed the

present interlocutory appeal.


       By one issue, the City contends that the trial erred in denying the City’s plea to the

jurisdiction based on the appellees’ failure to plead that their property was taken for or

applied to a public use.3 Appellees contend that their live pleading alleges a claim for a

taking under article I, section 17, of the Texas Constitution. Appellees pled that their

property was damaged for a public use because (1) the damage arose out of or was

incident to a public work, (2) the City used less costly materials and failed to adequately

plan the drainage system, which resulted in saving public funds, and (3) the design and

installation of the drainage system protected other homeowners from the flooding suffered

by appellees.


                                    Standard of Review


       The City’s issue calls on us to review the trial court’s denial of the City’s plea to the

jurisdiction. A plea to the jurisdiction is a dilatory plea, the purpose of which is to defeat

a cause of action without regard to whether the claims asserted have merit. Bland Indep.

Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000). When a plea to the jurisdiction

challenges the pleadings, we determine if the pleader has alleged facts that affirmatively

demonstrate the court’s jurisdiction to hear the cause. Tex. Dep’t of Parks & Wildlife v.



       3
       While governmental immunity generally shields governmental entities from suit,
governmental immunity does not encompass claims based on the takings clause of the
Texas Constitution. See Gen. Servs. Comm’n v. Little-Tex Insulation Co., 39 S.W.3d 591,
598 (Tex. 2001).

                                               3
Miranda, 133 S.W.3d 217, 226 (Tex. 2004). We are to construe the pleadings liberally in

favor of the plaintiff and look to the pleader’s intent.       Id.   Whether a pleader has

affirmatively demonstrated a trial court’s jurisdiction is a question of law reviewed de novo.

Id. However, a court deciding a plea to the jurisdiction is not required to look solely to the

pleadings, but may consider evidence and must do so when necessary to resolve the

jurisdictional issues raised. Bland Indep. Sch. Dist., 34 S.W.3d at 555. Thus, in deciding

whether a plaintiff has affirmatively demonstrated the court’s jurisdiction to hear the cause,

we consider the facts alleged by the plaintiff and, to the extent it is relevant to the

jurisdictional issue, the evidence submitted by the parties. See State Dep’t of Crim. Justice

v. Miller, 51 S.W.3d 583, 587 (Tex. 2001).


       An appellate court’s task in reviewing a ruling on a plea to the jurisdiction is to

determine whether the plaintiff pled facts that, when taken as true, support jurisdiction in

the trial court. Miranda, 133 S.W.3d at 226; Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852

S.W.2d 440, 446 (Tex. 1993). However, the reviewing court should not address the merits

of the case. Bland Indep. Sch. Dist., 34 S.W.3d at 554.


                                      Law and Analysis


       The takings clause of the Texas Constitution provides that “[n]o person’s property

shall be taken, damaged, or destroyed for or applied to public use without adequate

compensation being made . . . .” TEX . CONST . art. I, § 17. To recover under the takings

clause, a plaintiff must establish that: (1) a governmental unit intentionally performed

certain acts, (2) which resulted in a “taking” of the plaintiff’s property, (3) for public use.


                                              4
See City of Abilene v. Smithwick, 721 S.W.2d 949, 951 (Tex.App.–Eastland 1986, writ ref’d

n.r.e.) (citing Steele v. City of Houston, 603 S.W.2d 786, 788-92 (Tex. 1980)). The City’s

plea to the jurisdiction challenged only the third element of public use, so we will constrain

our analysis of the jurisdictional issue to whether appellees pled sufficient facts to establish

that their property was damaged for or applied to public use.4


       A constitutional taking for public use occurs “only when there results to the public

some definite right or use in the business or undertaking to which the property is devoted.”

Borden v. Trespalacios Rice & Irrigation Co., 98 Tex. 494, 86 S.W. 11, 14 (1905); Loyd,

956 S.W.2d at 128. Judicial decisions have narrowed the meaning of public use to those

situations in which the damages are incident to the construction and operation of public

works. Id. The question of what constitutes a public use is a question of law for the courts.

Dyer v. Tex. Elec. Serv. Co., 680 S.W.2d 883, 884 (Tex.App.–El Paso 1984, writ ref’d

n.r.e.). The key consideration in assessing whether a particular taking was for a public use

is whether the public is bearing a cost for which it received a benefit. See Tarrant Reg’l

Water Dist. v. Gragg, 151 S.W.3d 546, 554 (Tex. 2004).




       4
           Because we hold that appellees failed to plead facts sufficient to establish that
their property damage was related to a public use, we need not address the element of
whether the City acted intentionally. However, our review of appellees’ pleading lead us
to conclude that, at best, appellees have pled that the City acted negligently in the design
and construction of the drainage system appellees complain of. See Loyd v. ECO Res.,
Inc., 956 S.W.2d 110, 128 (Tex.App.–Houston [14th Dist.] 1997, no pet.) (“If the damage
is clearly attributable to negligent acts of the agents of the governmental unit, there is no
liability under the rationale that a damaging from unintended and negligent acts results in
no benefit to the public.”).

                                               5
       Looking to appellees’ factual pleadings of how their property was taken for public

use, we note that appellees allege three bases: (1) the damage arose out of or was

incident to a public work, (2) the City used less costly materials and failed to adequately

plan the drainage system, which resulted in a savings of public funds, and (3) the design

and installation of the drainage system protected other homeowners from the flooding

suffered by appellees.


       In their first basis for meeting the public use element, appellees pled that the

damage to their property arose out of or was incident to a public work and, therefore, was

for a public use. See Loyd, 956 S.W.2d at 128. While we agree with appellees that

damage arising out of or that is incident to public works will generally meet the third

element of a takings claim, appellees have failed to plead facts sufficient to establish that

the property damage that they suffered arose out of or were incident to a public work. This

is so because appellees have failed to allege any facts creating a causal nexus between

the property damage and the City’s drainage system. Appellees’ only allegation relating

to causation is that “[t]he street drainage system designed and maintained by THE CITY

failed to prevent and possibly exacerbated the referenced flooding.” However, appellees

have alleged no facts that would support their conclusion that the drainage system

somehow exacerbated the flooding or, other than the mere fact that appellees suffered

property damage, that the drainage system was not effective in preventing flooding. The

City was not required to provide drainage adequate for all floods that may occur. Norman

& Schaen, Inc. v. City of Dallas, 536 S.W.2d 428, 430 (Tex.Civ.App.–Dallas 1976, writ ref’d

n.r.e.). In fact, the only duty imposed upon the City in constructing or maintaining the


                                             6
drainage system was that it not increase the flow of surface waters across appellees’

property. Id. at 429-30. Appellees have made no allegation that the City’s redesign and

installation of the drainage system caused an increased flow of surface waters across their

property. Thus, appellees have wholly failed to plead facts that would establish that the

property damage they suffered arose out of or was incident to a public work.


       Appellees’ second basis for establishing public use is that the City used less costly

materials and failed to adequately plan the drainage system resulting in a savings of public

funds. There are no facts pled nor jurisdictional evidence presented that would establish

that the City used less costly materials in the drainage system. There is, however, some

evidence in the record that the City may not have adequately planned the drainage system.

The evidence that raises a fact issue in regard to the adequacy of the planning of the

drainage system, at best, raises a fact issue as to whether the City was negligent in its

design of the drainage system. This is significant because (1) the design of a street

drainage system is a discretionary act for which governmental immunity has not been

waived, see TEX . CIV . PRAC . & REM . CODE ANN . § 101.056 (Vernon 2005), and (2) the

particular design and construction of the drainage system selected by the City is within the

City’s discretion and may not be reviewed and revised by the courts in a piecemeal

fashion, see Norman & Schaen, Inc., 536 S.W.2d at 430. Further, even if we were to

accept the savings of public funds as a public use, the appellees have alleged no facts nor

is there any evidence in the record that would establish a causal connection between the

supposed savings on the drainage system and the damage to appellees’ property. Thus,

we conclude that the purported savings of public funds in the design and construction of


                                             7
the drainage system is insufficient to establish that appellees’ property was taken for a

public use.


       In addition, sound public policy would militate against the establishment of the public

use element of a takings claim based on a savings of public funds.                To allow the

establishment of this element by proof of a cost savings would be a judicial interference

in municipal fiscal policy, which would violate the separation of powers doctrine. Further,

for a city to protect itself from potential litigation arising out of a public works project, the

city would have to accept the highest bid submitted and would have to ensure that the most

expensive materials were used. To paraphrase the Dallas Court of Appeals, since cheaper

protection against floods is better than none at all, if the city undertakes to provide

drainage, it has no duty to provide facilities adequate for all floods that may reasonably be

anticipated because the existence of such liability would tend to deter the city from

providing any protection from flooding at all. See id.


       Finally, appellees pled that the design and installation of the drainage system

protected other homeowners in the neighborhood from the flooding suffered by appellees.

Certainly, if the pleaded facts and the jurisdictional evidence established that the City

intentionally diverted flood waters to appellees’ property to prevent flooding of other

neighborhood property owners, appellees would have stated a claim for a taking that would

withstand a plea to the jurisdiction. However, appellees allege no facts that would

establish that the City used their property to protect other neighborhood property owners.

Much as is the case with appellees’ assertion that their property damage arose from a

public work, appellees appear to conclude that the City diverted water onto their property

                                               8
based solely on the fact that their property sustained damage while other neighborhood

properties did not. Because appellees fail to allege any facts to establish that flood waters

were diverted onto their property to protect the property of others, we conclude that

appellees have failed to allege a public use for which their property was taken.


       Further, as it relates to appellees’ diversion of water contention, the City’s intended

use of the drainage system is inextricably linked to appellees’ allegation of a public use.

If the City intended to divert surface waters onto appellees’ property to protect other

homeowners, then appellees have a claim for a taking. See id. On the other hand, if

surface waters were not intentionally diverted to appellees’ property, then it cannot be said

that appellees’ property was taken for a public use. Stated another way, assuming that

there was, in fact, a diversion of surface waters onto appellees’ property, if such a diversion

was not intended by the City, appellees would possess a claim for negligence, but would

not be able to establish that the unintended diversion of surface waters onto their property

was for a public use. See Gragg, 151 S.W.3d at 555 (“we have sought objective indicia

of intent in particular contexts to determine whether property has been taken or damaged

in furtherance of the public interest.”). In the present case, the only evidence contained

in the record relating to the whether the City used appellees’ property to protect other

property owners is the statement of the city engineer that he was not aware of any plans

by the City to divert water onto the appellees’ property to benefit the public.


       Because we agree with the City that appellees have failed to allege facts or present

evidence establishing that the City damaged their property for public use, we sustain the



                                              9
City’s issue, reverse the trial court’s order denying the City’s plea to the jurisdiction, and

dismiss appellees’ suit.


                                          Prejudice


       Ordinarily, when a plaintiff is capable of remedying a jurisdictional defect in his

pleading, dismissal with prejudice is improper. See Harris County v. Sykes, 136 S.W.3d

635, 639 (Tex. 2004).      However, when a plaintiff has been provided a reasonable

opportunity to amend his pleading, but the amended pleading still does not allege facts that

would constitute a waiver of immunity, the court should dismiss the case with prejudice.

Id. This is so because the plaintiff should not be permitted to relitigate jurisdiction once

that issue has been finally determined. Id.


       In the present case, the trial court granted an earlier plea to the jurisdiction filed by

the City, but afforded appellees an opportunity to amend their pleading. The appellees did

amend their pleadings and it is this amended pleading that this Court is reviewing in the

present appeal. Because the issue of the trial court’s jurisdiction to hear appellees’ suit

has been finally determined after appellees were afforded an opportunity to and did amend

their pleading, our judgment dismissing appellees’ case is with prejudice.


                                         Conclusion


       For the foregoing reasons, we reverse the trial court’s order denying the City’s plea

to the jurisdiction and render judgment dismissing appellees’ suit for want of jurisdiction

with prejudice.

                                                   Mackey K. Hancock
                                                        Justice

                                              10
