Opinion filed July 11, 2019




                                       In The

        Eleventh Court of Appeals
                                    __________

                              No. 11-18-00029-CV
                                  __________

                LLOYD HOUGHTON, VICKI JOHNSON,
                  AND MARK A. SMITH, Appellants
                                          V.
                     CITY OF CISCO, TEXAS, Appellee


                      On Appeal from the 91st District Court
                            Eastland County, Texas
                       Trial Court Cause No. CV1644276


                      MEMORANDUM OPINION
       This case involves an appeal from the trial court’s grant of the City of Cisco’s
(the City) plea to the jurisdiction. In three issues, Appellants, individuals who leased
property on the shores of Lake Cisco, argue that the trial court erred in granting the
City’s plea to the jurisdiction because (1) Appellants properly pleaded a takings
claim against the City, (2) Appellants properly pleaded a waiver of the City’s
immunity under the Texas Tort Claims Act (the TTCA), and (3) even if the trial
court properly sustained the City’s plea, the trial court erred in refusing to grant
Appellants an opportunity to amend their petition. Because we hold that Appellants
properly pleaded a takings claim, we affirm in part and reverse and remand in part.
                                  Background Facts
      According to Appellants’ second amended petition, Appellants—Lloyd
Houghton, Vicki Johnson, and Mark A. Smith—leased property from Appellee, the
City, on the shores of Lake Cisco (the Lake). The City owns the Lake as well as the
Williamson Dam, which the City uses to control the water level of the Lake. In May
2016, Appellants’ properties flooded, resulting in substantial real and personal
property damage.
      Appellants brought causes of action against the City for the following:
(1) constitutional taking/inverse condemnation; (2) failure to repair or remedy;
(3) breach of contract; (4) trespass to land; (5) trespass to chattels; (6) private
nuisance; and (7) negligence under the TTCA. Appellants claimed that the flooding
was the result of the City’s intentional pumping of water into the Lake, retention of
water within the Lake, maintenance and usage of the Williamson Dam, and operation
of the Lake as a public amusement. Appellants alleged that the City pumped water
into the Lake despite being on notice of its rising water levels due to rain. Appellants
also alleged that the Lake’s rising water level prompted the City to issue an
evacuation order to Appellants. Nonetheless, the City allegedly continued to pump
water into the Lake and did not open the sluice gates on the Williamson Dam.
Appellants alleged that the City continued to pump water into the Lake out of a
desire to sell excess water to other cities and in order to keep the Lake open for
recreation from which the City collected access fees.
      Appellants also contended that the City knew of the likelihood and substantial
risk of harm to Appellants’ property from pumping and retaining excess water in the
Lake because the City had previously faced an injunction obtained by a railroad
                                           2
company whose roadbed was damaged by backwater from the Lake. Appellants also
pointed to the evacuation order as proof of knowledge.
      In response, the City filed a plea to the jurisdiction asserting that Appellants’
claims were barred by governmental immunity. Specifically, the City argued that
(1) Appellants’ claims for failure to repair/remedy, breach of contract/lease
agreement, trespass to land, trespass to chattels, and private nuisance were barred
because Appellants failed to plead a basis for waiver of immunity; (2) Appellants’
claim for inverse condemnation was barred because Appellants failed to, and could
not, plead facts sufficient to prove a taking; and (3) the limited waiver under the
TTCA does not apply because a failure to use motor-driven equipment (the
spillway/sluice gates) does not constitute an operation of motor-driven equipment as
required under the waiver exception. The City also argued that, at best, Appellants
may have demonstrated that the City was negligent in failing to maintain the sluice
gates but stressed that inaction or negligent conduct does not give rise to a takings
claim as a matter of law. The City argued that Appellants could not show that the
City acted intentionally or knew that its specific actions would damage Appellants’
specific property.
      Following a hearing on the City’s plea to the jurisdiction, the trial court
granted the City’s plea and dismissed Appellants’ causes of action. This appeal
followed.
                                       Analysis
      In three issues on appeal, Appellants argue that the trial court erred in granting
the City’s plea to the jurisdiction because (1) Appellants properly alleged a takings
claim against the City, thereby affirmatively demonstrating the trial court’s subject-
matter jurisdiction; (2) Appellants sufficiently alleged a waiver of the City’s
sovereign immunity under the TTCA; and (3) even if the trial court properly
sustained the City’s plea to the jurisdiction, the trial court should have granted
                                           3
Appellants an opportunity to amend their petition to cure any defects. Conversely,
the City argues that the trial court properly granted its plea to the jurisdiction. The
City insists that (1) Appellants failed to plead facts which, if accepted as true, would
support a takings claim; (2) Appellants failed to plead facts which, if accepted as
true, would fall within a waiver of the City’s governmental immunity under the
TTCA; and (3) Appellants had already been granted an opportunity to replead and,
even if afforded an opportunity to replead, could not plead facts sufficient to support
a waiver claim. Because we find that Appellants have properly pled a takings claim,
we sustain Appellants’ first issue and reverse in part. We affirm the trial court’s
judgment with respect to Appellants’ second and third issues.
      I. Plea to the Jurisdiction
      Sovereign immunity from suit defeats a trial court’s subject-matter
jurisdiction unless the State expressly consents to suit. Tex. Dep’t of Transp. v.
Jones, 8 S.W.3d 636, 638 (Tex. 1999). “Governmental immunity operates like
sovereign immunity to afford similar protection to subdivisions of the State,
including counties, cities, and school districts.” Harris Cty. v. Sykes, 136 S.W.3d
635, 638 (Tex. 2004). Because governmental immunity implicates the trial court’s
subject-matter jurisdiction, it is properly asserted in a plea to the jurisdiction. Tex.
Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 225–26 (Tex. 2004).
      “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). Whether a trial court has
subject-matter jurisdiction is a question of law; thus, we review a trial court’s ruling
on a plea to the jurisdiction de novo. Miranda, 133 S.W.3d at 226.
      When a plea to the jurisdiction challenges only the pleading, we determine if
the plaintiff has alleged facts that affirmatively demonstrate the trial court’s
jurisdiction to hear the case. Id. We must accept the allegations in the pleadings as
                                           4
true and construe them in the plaintiff’s favor. Id.; Univ. of Tex. at El Paso v.
Esparza, 510 S.W.3d 147, 154 (Tex. App.—El Paso 2016, no pet.). If the pleadings
do not contain sufficient facts to affirmatively demonstrate the trial court’s
jurisdiction, but also do not affirmatively demonstrate incurable defects in
jurisdiction, the issue is one of pleading sufficiency, and the plaintiff should be
afforded the opportunity to amend. Cty. of Cameron v. Brown, 80 S.W.3d 549, 555
(Tex. 2002). However, if the pleadings affirmatively negate the existence of
jurisdiction, then a plea to the jurisdiction can be granted without allowing an
opportunity to amend. Id.
      If a plea to the jurisdiction challenges the existence of jurisdictional facts,
however, “we consider relevant evidence submitted by the parties when necessary
to resolve the jurisdictional issues raised, as the trial court is required to do.”
Miranda, 133 S.W.3d at 227. “If there is no question of fact as to the jurisdictional
issue, the trial court must rule on the plea to the jurisdiction as a matter of law.” City
of El Paso v. Heinrich, 284 S.W.3d 366, 378 (Tex. 2009). “If, however, the
jurisdictional evidence creates a fact question, then the trial court cannot grant the
plea to the jurisdiction, and the issue must be resolved by the fact finder.” Id.
      Here, the City’s plea to the jurisdiction only challenged Appellants’ pleadings.
The City did not, and has not, presented any evidence challenging jurisdictional
facts. Thus, we are required to take Appellants’ allegations as true, construe them
in Appellants’ favor, and determine if Appellants have alleged facts that
affirmatively demonstrate jurisdiction. See Miranda, 133 S.W.3d at 226.
      II. Issue One – Constitutional Takings Claim
      In Count One of Appellants’ second amended petition, Appellants alleged a
cause of action against the City for a constitutional takings by inverse condemnation.
Article I, section 17 of the Texas Constitution provides in part:


                                            5
            No person’s property shall be taken, damaged or destroyed for or
      applied to public use without adequate compensation being made,
      unless by the consent of such person.
TEX. CONST. art. I, § 17(a). Thus, when the government takes private property
without first paying for it, the owner may recover damages for inverse
condemnation, Westgate, Ltd. v. State, 843 S.W.2d 448, 452 (Tex. 1992); sovereign
immunity does not shield the government from liability for compensation under the
takings clause, Gen. Servs. Comm’n v. Little-Tex Insulation Co., 39 S.W.3d 591, 598
(Tex. 2001). Generally, a plaintiff seeking recovery for a taking must prove that
(1) the State intentionally performed certain acts, (2) which resulted in a “taking” of
the plaintiff’s property, (3) for public use. City of Abilene v. Smithwick, 721 S.W.2d
949, 951 (Tex. App.—Eastland 1986, writ ref’d n.r.e). The intent element is satisfied
if it is shown that the government “(1) knows that a specific act is causing
identifiable harm; or (2) knows that the specific property damage is substantially
certain to result from an authorized government action — that is, that the damage is
‘necessarily an incident to, or necessarily a consequential result of’ the government’s
action.” City of Dallas v. Jennings, 142 S.W.3d 310, 314 (Tex. 2004) (quoting Tex.
Highway Dep’t v. Weber, 219 S.W.2d 70, 71 (Tex. 1949)). A taking cannot be
established by proof of mere negligent conduct by the government. Tarrant Reg’l
Water Dist. v. Gragg, 151 S.W.3d 546, 554 (Tex. 2004).
      Here, Appellants alleged that their “real and personal property” was
“substantially harmed and damaged” and that the “damages directly resulted from
actions taken by the City of Cisco relating to pumping water into [the Lake], the
retention of water within [the Lake], the maintenance and usage of the Williamson
Dam, and the City’s operation of [the Lake] as an amusement.” Appellants further
alleged that the City took these “intentional acts” in order to (1) maintain an excess
water level in the Lake so that the City could sell the water for a profit and (2) ensure

                                           6
that the Lake could be used for public recreation. Lastly, Appellants alleged that the
City had knowledge that its actions were substantially certain to result in harm to
Appellants’ property as evidenced by the City’s issuance of an evacuation order to
Appellants and by previous damage that had been inflicted on a railroad company as
a result of similar City actions.
      Because the City has failed to offer any evidence to the contrary, Appellants’
allegations—taken as true—have sufficiently alleged each element of a valid takings
claim. See Miranda, 133 S.W.3d at 226; Smithwick, 721 S.W.2d at 951. Thus, the
trial court erred in granting the City’s plea to the jurisdiction with regard to
Appellants’ claim for a constitutional taking by inverse condemnation. We sustain
Appellants’ first issue.
      III. Issue Two – The Texas Tort Claims Act
      In Appellants’ second issue, they argue that the trial court erred in granting
the City’s plea to the jurisdiction because Appellants sufficiently alleged a waiver
of the City’s governmental immunity under the TTCA. We disagree.
      “The [TTCA] provides a limited waiver of governmental immunity.”
Alexander v. Walker, 435 S.W.3d 789, 790 (Tex. 2014). The TTCA states:
      A governmental unit in the state is liable for:
            (1) property damage, personal injury, and death proximately
      caused by the wrongful act or omission or the negligence of an
      employee acting within his scope of employment if:

                    (A) the property damage, personal injury, or death
             arises from the operation or use of a motor-driven vehicle
             or motor-driven equipment; and
                   (B) the employee would be personally liable to the
             claimant according to Texas law; and
              (2) personal injury and death so caused by a condition or use of
      tangible personal or real property if the governmental unit would, were
      it a private person, be liable to the claimant according to Texas law.

                                          7
TEX. CIV. PRAC. & REM. CODE ANN. § 101.021 (West 2019); see Ryder Integrated
Logistics, Inc. v. Fayette Cty., 453 S.W.3d 922, 927 (Tex. 2015). However, the
TTCA does not waive immunity for claims arising from discretionary acts and
omissions. Golden Harvest Co. v. City of Dallas, 942 S.W.2d 682, 687 (Tex. App.—
Tyler 1997, writ denied). Instead, Section 101.056 of the TTCA creates an exception
and “precludes liability for claims based upon the failure of a governmental unit or
its employees to perform an act that is not required by law.” Id.; see CIV. PRAC. &
REM. § 101.056. Specifically, Section 101.056 states:
      This chapter does not apply to a claim based on:
             (1) the failure of a governmental unit to perform an act that the
      unit is not required by law to perform; or
              (2) a governmental unit’s decision not to perform an act or on its
      failure to make a decision on the performance or nonperformance of an
      act if the law leaves the performance or nonperformance of the act to
      the discretion of the governmental unit.
CIV. PRAC. & REM. § 101.056. This discretionary function exception to the waiver
of governmental immunity is designed to avoid judicial review of governmental
policy decisions. State v. Terrell, 588 S.W.2d 784, 787 (Tex. 1979); Golden
Harvest, 942 S.W.2d at 687. A governmental unit is immune from liability if
damage or injury results from the formulation of policy. Golden Harvest, 942
S.W.2d at 687. Whether a government act is discretionary and within the exception
to the waiver of immunity under the TTCA is a question of law. Id.; Bellnoa v. City
of Austin, 894 S.W.2d 821, 824 (Tex. App.—Austin 1995, no writ). However, courts
have held that decisions regarding whether or not to release, pre-release, or impound
excess water in lakes are policy decisions that do not constitute a waiver of immunity
under the TTCA. See Bennett v. Tarrant Cty. Water Control & Improvement Dist.
No. One, 894 S.W.2d 441, 452 (Tex. App.—Fort Worth 1995, writ denied) (holding
that a water district’s decisions to not release, or pre-release, water from a lake but,

                                           8
instead, to impound excess water were policy decisions that constituted “an
exception to the wavier of immunity under the [TTCA]”). For example, in Golden
Harvest, a city’s policy not to pre-release water from a lake, “but to keep the lake at
maximum elevation level so that a ready supply of water would be available for use
by the residents of the City and for sale to other customers” was a discretionary
function immune from liability under the TTCA. 942 S.W.2d at 688.
      Here, similar to the plaintiffs in Golden Harvest, Appellants argue that “the
damages to their real and personal property was caused by the [City’s] negligent use
of the motor-driven pumps and the failure to open the motor-driven sluice gates to
reduce the water level of [the] Lake” and that the City increased the water level of
the Lake in order to have excess water to sell and so that the Lake could be used for
recreational purposes. See id. Therefore, Appellants argue that the City waived its
governmental immunity under the TTCA. However, as in Golden Harvest, we hold
that the City’s alleged decision to maintain an elevated water level in the Lake and
the City’s decision not to release water were policy decisions immune from liability
under the TTCA. See id. Likewise, regarding the City’s alleged failure to open the
Williamson Dam’s sluice gates, it “is well settled that mere nonuse of property does
not suffice to invoke section 101.021(2)’s waiver.” Harris Cty. v. Annab, 547
S.W.3d 609, 614 (Tex. 2018). Thus, we overrule Appellants’ second issue.
      IV. Issue Three – Opportunity to Replead
      Lastly, in their third issue, Appellants argue that, even if the trial court
properly sustained the City’s plea, the trial court should have allowed Appellants an
opportunity to replead. Appellants contend that, although they amended their
petition twice, they did so before the trial court sustained the City’s plea. Appellants
argue that they should have been granted an opportunity to amend their petition after
the trial court’s hearing on the City’s plea. We disagree.


                                           9
      As stated previously, when a plea to the jurisdiction challenges the pleading
itself, we determine if the plaintiff has alleged facts that affirmatively demonstrate
the trial court’s jurisdiction to hear the case. Miranda, 133 S.W.3d at 226. If the
pleadings do not contain sufficient facts to affirmatively demonstrate the trial court’s
jurisdiction, but also do not affirmatively demonstrate incurable defects in
jurisdiction, the issue is one of pleading sufficiency. Brown, 80 S.W.3d 549 at 555.
In that instance, the plaintiff should be afforded the opportunity to amend. Id.
However, if a plaintiff has been provided a reasonable opportunity to amend after a
governmental entity files its plea to the jurisdiction, and the amended pleading still
does not allege facts that would constitute a waiver of immunity, then the trial court
should dismiss the action. Sykes, 136 S.W.3d at 639. “Such a dismissal is with
prejudice because a plaintiff should not be permitted to relitigate jurisdiction once
that issue has been finally determined.” Id.
      Here, because Appellants’ second amended petition satisfies the pleading
requirement to state a valid takings claim, Appellants do not need, nor are they
entitled to, an opportunity to replead with regards to the takings claim. See Miranda,
133 S.W.3d at 231. However, Appellants are also not entitled to an opportunity to
replead with regard to their remaining TTCA claims. See Sykes, 136 S.W.3d at 639.
Appellants were afforded the opportunity to, and did in fact, amend their petition
after the City had filed its plea to the jurisdiction. Although Appellants argue that
they should have been afforded an opportunity to amend their petition after the trial
court had expressed its opinion on the sufficiency of their pleadings, no such right is
guaranteed. See id. (holding that the appellants, who had amended their petition
after a county had filed a plea to the jurisdiction but prior to the trial court’s hearing
on the plea, were not entitled to an opportunity to replead following the trial court’s
dismissal of their claims); Miranda, 133 S.W.3d at 231. Furthermore, because
Appellants’ TTCA allegations concern discretionary functions immune from
                                           10
liability and because Appellants’ TTCA claims allege nonuse of motor-driven
equipment as a source of liability, Appellants would not be able to cure the
jurisdictional defects even if afforded a third opportunity to amend. See Golden
Harvest, 942 S.W.2d at 687; Annab, 547 S.W.3d at 614. Thus, we overrule
Appellants’ third issue.
                                               Conclusion
        We reverse the trial court’s judgment to the extent that its grant of the City’s
plea to the jurisdiction dismissed Appellants’ takings claim, and we remand this
cause to the trial court for further proceedings with respect to that claim. We affirm
the trial court’s judgment in all other respects.




                                                                   KEITH STRETCHER
                                                                   JUSTICE

July 11, 2019
Panel consists of: Stretcher, J.,
Wright, S.C.J.,1 and Dauphinot, S.J.2

Bailey, C.J., and Willson, J., not participating.




        1
          Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland,
sitting by assignment.
        2
        Lee Ann Dauphinot, Senior Justice (Retired), Court of Appeals, 2nd District of Texas at
Fort Worth, sitting by assignment.

                                                     11
